Consolidated unconstitutionality actions against the reform of the Judicial Branch Pension and Retirement RegimeAcciones de inconstitucionalidad acumuladas contra la reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial

Large Normal Small Constitutional Chamber Date of Resolution: May 25, 2021 at 17:00 Case File: 18-007819-0007-CO Type of matter: Unconstitutionality action Constitutional control: Upholding judgment Analyzed by: CONSTITUTIONAL CHAMBER Judgment with Dissenting Vote Judgment with separate note Relevance Indicators Relevant judgment Key judgment Related Judgments Judgment with protected data, in accordance with current regulations Content of Interest:

Type of content: Majority vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: PENSION Subtopics:

NOT APPLICABLE.

Topic: JUDICIAL BRANCH Subtopics:

NOT APPLICABLE.

Topic: UNCONSTITUTIONALITY ACTION Subtopics:

NOT APPLICABLE.

011957-21. Accumulated unconstitutionality actions, against articles 224, 224 Bis, 226, 227, 236, 236 Bis and 239 and Transitory Provision VI of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), amended by Law No. 9544 of April 24, 2018, as well as article 208 Bis of the Internal Regulations of the Legislative Assembly.

Admissibility:

Unanimously, the following are summarily dismissed:

• a)the claims of procedural defects referring to the violation of the autonomy of the state banks and the autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) for lack of standing.
• b)the analysis of the claim regarding the declaration of unconstitutionality by connection of Law 9796 of December 5, 2019, as it is the subject of analysis in unconstitutionality action 20-007715-0007-CO.

Regarding unconstitutionality action 19-1720-0007-CO, the claims seeking to protect the generality of servers, officials, pensioners, and retirees are summarily dismissed for lack of standing, in accordance with Article 75 paragraph 1) of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), on those issues in which the plaintiff cannot derive protection or relief for her right because it is not a reasonable means to protect her right.

Legislative procedure defects:

By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the accumulated actions are declared without merit regarding the alleged procedure defects. Magistrate Castillo Víquez gives additional reasons regarding the violation of the principle of publicity. Magistrates Hernández López and Garro Vargas submit separate notes. Regarding the issue of the alleged defects of the session of the Special Commission of July 27, 2017, Magistrate Garro Vargas gives different reasons.

Magistrates Salazar Alvarado and Hernández Gutiérrez dissent and declare that the challenged law presents an essential procedure defect consisting of the lack of consultation with the Judicial Branch of the text approved by Parliament by an absolute and not qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), because it affects its organization, structure, functioning, and independence, which is why they consider it unnecessary to analyze other procedural and substantive defects raised by the plaintiffs; except for those in which it is required to take a position so that there is a fully conforming vote (Article 60.2, Code of Civil Procedure (Código Procesal Civil)).

Regarding the substantive claims:

The accumulated unconstitutionality actions are partially upheld, and consequently, it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas and Hernández Gutiérrez), the percentage of contributions (cotizaciones) and the special solidarity and redistributive contribution (contribución especial solidaria y redistributiva) are annulled insofar as they exceed 50% of the gross amount of the pension (pensión) corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effects of this resolution, so that, starting from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, so that the tax burdens on the amount of retirements (jubilaciones) and pensions (pensiones) do not exceed 50% of the gross amount received by the retiree or pensioner. Magistrate Castillo Víquez gives different reasons. Magistrate Garro Vargas, for her own reasons, upholds this part of the unconstitutionality action, ordering the partial annulment of what is provided in Articles 236 and 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial); likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution (contribución especial solidaria) with respect to that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial). Magistrate Hernández Gutiérrez gives additional reasons. Magistrate Rueda Leal and Magistrate Hernández López dissent and declare this part without merit, as they did in judgment No. 2020-19274 of 16:30 hours on October 7, 2020, because, according to the express text of Article 67 of ILO C102 of 1952 Social Security (Minimum Standards) Convention (Convenio sobre la Seguridad Social (norma mínima)), the pension or retirement can be reduced as long as 40% of a reference wage is respected, which is not shown to be automatically and evidently violated by the content of the challenged norms.

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the paragraph contained in Article 239 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) amended by the challenged Law number 9544 is declared unconstitutional and consequently annulled, which states: "Based on the results of the actuarial studies, and with authorization from the Superintendency of Pensions (Superintendencia de Pensiones), the Administrative Board (Junta Administrativa) may modify the initial parameters established in this law regarding eligibility requirements, the benefit profile, as well as the contributions and the dues (cotizaciones) of judicial servers and the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime." Third: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the phrase "(...) this reform will not be applied to their detriment", contained in Transitory Provision II of Law 9544 of April 24, 2018, is interpreted to mean that it refers exclusively to persons who have consolidated the right to retirement (jubilación) or the right to a pension (pensión).

Fourth: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the requirement of 20 years of service demanded for obtaining a survivor's pension (pensión por sobrevivencia) derived from Article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, according to Article 230 of Law 7333 of May 5, 1993, in the version prior to the reform.

The accumulated unconstitutionality actions are declared without merit, and consequently, it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas and Hernández Gutiérrez), regarding the allegations relating to the omission to take into account gender differentiation in the retirement age between women and men, the actions are declared without merit. Magistrates Salazar Alvarado and Hernández Gutiérrez declare this part of the action without merit, solely for procedural reasons due to the absence of technical studies. Magistrate Garro Vargas gives different reasons. Magistrate Rueda Leal and Magistrate Hernández López dissent and partially uphold the accumulated actions due to the existence of an unconstitutional omission in Law 9544, by not contemplating gender criteria to set a differentiated age so that women who contribute to the Retirement and Pension Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial) can retire or receive a pension with a shorter service time.

Magistrate Hernández López also dissents and partially upholds the accumulated actions because:

• a)she considers it contrary to the Law of the Constitution to exclude from the benefits granted by Law 7333 to persons who, at the time of enacting Law 9544 challenged here, had 25 years or more of contributing to the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial).
• b)due to the existence of an unconstitutionality by omission in the challenged Law 9544, because the legislator does not give the same treatment before the law to the workers of the Judicial Branch regarding the possibility of having incentives to postpone their right to retirement (jubilación), according to the characteristics of their own regime.

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the accumulated actions are declared without merit in all other claimed areas.

Magistrates Castillo Víquez and Rueda Leal and Magistrates Hernández López and Garro Vargas record separate notes.

The declaration of unconstitutionalities, with the exception of what is indicated in the first point of the substantive claims of this operative part - which takes effect from the month following the notification of the judgment - has declarative and retroactive effects to the effective date of the law, all without prejudice to rights acquired in good faith and consolidated legal situations. Communicate to the Legislative and Judicial Branches and to the Administrative Board of the Retirement and Pension Regime of the Judicial Branch (Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial). Record this pronouncement in the Official Gazette La Gaceta and publish it in full in the Judicial Bulletin (Boletín Judicial). Notify.

For the purposes of this action, it is important to consider that a crucial element in preventing the principle of judicial independence from being rendered nugatory is to understand that it encompasses several facets beyond the organic, institutional, and functional spheres, and can also be viewed from the individual dimension, relating to the worker of the Judicial Branch in connection with all the factors that surround them and which, in turn, make it possible to guarantee full and effective compliance with that principle for the institution..." "... From this perspective, a very important part of this judicial independence is the budgetary allocation that has been guaranteed to the Judicial Branch at the constitutional level, it being necessary to recall that the legislators who—at the time—approved the reform to Article 177 of the Political Constitution, had the foresight to ensure for this Branch of the Republic a minimum budget of 6% of the ordinary revenues of the Republic with which it could perform the functions and powers conferred upon it, thereby preventing the determination of the budget from becoming an instrument of political intervention in the jurisdictional function and, consequently, a mechanism for casting adrift the independence of this Branch of the Republic..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 157- Members of the Supreme Court of Justice Subtopics:

NOT APPLICABLE.

ARTICLE 157 OF THE POLITICAL CONSTITUTION. "...Nor does the Chamber consider that they are injurious to its economic independence, protected in Article 157 of the Constitution, because the Constitutional 6% as a minimum ceiling for the administration of justice is not affected by the challenged law. The Legislative Assembly has respected that percentage for the Judicial Branch and, indeed, for more than 15 years has assigned it a higher one, considering new allocations and functions that have been given to it through legal reforms. In any event, it is not demonstrated in the expediente that the 6% allocation is affected by the public resources allocated to the Judicial Branch Pension Fund..." CO02/22 ... See more Content of Interest:

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

NOT APPLICABLE.

PRINCIPLE OF EQUALITY. "...Hence, it is not in every case that equal treatment must be given, disregarding the possible differentiating elements of legal relevance that may exist; or what is the same thing, not every inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of an objective and reasonable justification, which requires an assessment of its purpose and its effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. All of the foregoing means that equality before the law cannot imply a material equality or real and effective economic equality..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 073- Social security. Costa Rican Social Security Fund Subtopics:

NOT APPLICABLE.

ARTICLE 73 OF THE POLITICAL CONSTITUTION. "...In this way, it is constitutionally acceptable that a difference exists between the pension regime of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) and that of the Judicial Branch, because their enactment responds to different needs and conditions that render a simple comparison in terms of reductions, worker contributions, and benefit profiles improper, without also weighing the differences in the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. It is also worth adding that it is public and notorious, having been publicly reported by the authorities of that institution itself, that the pension regime of the Costa Rican Social Security Fund presents significant threats to its financial stability and that, in response to this, changes in eligibility requirements and the benefit profile are being considered, such that from this point of view also, the comparison posed by the plaintiffs loses weight and relevance to serve as support for a declaration of unconstitutionality based on inequality, as requested..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 056- Labor Subtopics:

NOT APPLICABLE.

ARTICLE 56 OF THE POLITICAL CONSTITUTION. "...Thus, it establishes a total levy of up to fifty-five percent (55%), which would be exceeding what is permitted in subsection 2) of Article 71 of the International Labor Organization Convention, which sets the establishment of pension costs at 50%, with the aid of taxes and contributions from the community considered as a whole, not only from workers and pensioners and retirees. This implies that the tax debtor, in this case, the pensioner, would be contributing even more taxes with the income tax, which would entail higher costs and deductions in their case, even a greater sacrifice demanded by society..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 034- Non-retroactivity of the law Subtopics:

NOT APPLICABLE.

ARTICLE 34 OF THE POLITICAL CONSTITUTION. "...However, the protection of Article 34 of the Constitution is not affected by the creation of the challenged solidarity contribution, insofar as it does not apply retroactively, but rather from the effective date of the law that creates it, a circumstance it shares with taxes in general..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 121- Powers of the Legislative Assembly Subtopics:

NOT APPLICABLE.

ARTICLE 121, SUBSECTION 13 OF THE POLITICAL CONSTITUTION. "...The alleged violation is the fact that the Legislative Assembly created a special tax, when, in accordance with numeral 121, subsection 13, of the Constitution, this constitutional body is only attributed the power to establish national taxes and approve municipal ones. This grievance must be dismissed on several grounds. First, what is created in this case is a parafiscal contribution (contribución parafiscal), that is, a tax that is allocated to an economic and social purpose, in this case to defray the administrative expenses of the Board that is created, which is more than justified constitutionally and doctrinally. Second, it is logical that if a group of workers has a special retirement and pension regime, forming a fund separate from the general regime—the disability, old-age, and death regime administered by the Costa Rican Social Security Fund—it is reasonable and proportional for active workers, retirees, and pensioners to contribute to the maintenance of the body whose competence is its administration. Finally, if the Legislative Assembly has the power to create taxes of general scope, this does not prevent it from creating parafiscal contributions when objective and reasonable grounds exist for their creation..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 034- Non-retroactivity of the law Subtopics:

NOT APPLICABLE.

ARTICLE 34 OF THE POLITICAL CONSTITUTION. "...the Tribunal has been conclusive that there is no right to a specific amount for the benefit derived from the right to a pension (see in that regard the very judgment 2020-19274 just mentioned). Neither is it a matter of the regulatory norms of the retirement system being petrified, because the Chamber has also admitted that it is valid, as necessary and always in compliance with respect for fundamental rights, to make the modifications that are necessary to adjust the system. Thus, it is not considered that the mere fact of having decreed the obligation to contribute a special, solidarity, and redistributive contribution in this case is harming any acquired right of the retirees or pensioners in the terms alleged. Nor are legal situations harmed for persons whose rights have not yet been declared, for it must be remembered that the so-called right of belonging that this Tribunal has jurisprudentially identified gives rise in favor of the contributors to a mere expectation of obtaining the right to retirement, since they have not generated consolidated situations or acquired rights at the time the new law comes into effect, so this law comes to regulate said situation in the state in which it finds itself, it being clear then that the norm (art. 34 constitutional) refers to subjective legal situations already consolidated, not to those that constitute mere expectations, because these, since the right has not been perfected, are indisputably subject to the future regulations that the law introduces..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 2. PRINCIPLES WITH JURISPRUDENCE Topic: Legal reserve Subtopics:

NOT APPLICABLE.

PRINCIPLE OF LEGAL RESERVE. "...this Tribunal holds that the principle of legal reserve (principio de reserva legal) not only guarantees freedom vis-à-vis other citizens but also constitutes a guarantee of control against public power because, precisely, the regulatory regulation of an activity that affects a multiplicity of fundamental rights requires a normative framework of legal rank, so that fundamental rights cannot be withdrawn from the public debate generated in the Legislative Assembly, as the Public Administration lacks legitimacy to regulate the exercise of fundamental rights, which is set forth in the General Law of Public Administration (Ley General de la Administración Pública) when it states that 'The legal regime of fundamental rights shall be reserved to Law, without prejudice to the corresponding Executive Decrees'..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 033- Equality before the law Subtopics:

NOT APPLICABLE.

ARTICLE 33 OF THE POLITICAL CONSTITUTION. ON EQUALITY IN THE RETIREMENT AGE BETWEEN MEN AND WOMEN. "...There are justified and objective reasons to give equal treatment between men and women with regard to the retirement age. In the first place, such a legal mandate pursues a legitimate constitutional purpose, such as the effective enjoyment of a fundamental right to retirement and to a pension, and guaranteeing a sector of the population access, in broader terms, to social security—Article 73 of the Constitution—. Secondly, this equalization is not an arbitrary act, lacking in reasonableness and proportionality; quite the contrary, it is based on actuarial studies—corresponding to scenario two—and the aim is to close loopholes. Thirdly, this equalization seeks to correct an actuarial deficit that a special retirement and pension regime has, for otherwise, if this measure and others established in the challenged legal provisions were not adopted, the logical and necessary consequence would be the non-sustainability of the said regime in the medium term, with the consequent detriment to retirees, pensioners, and active workers... No less important for the majority of the Tribunal is the argument that the global trend in retirement and pension regimes is towards equalizing the age between men and women. The reason for this trend finds justification, among other reasons, in the fact that, nowadays, women have joined the workforce in a very significant way and that they have a longer life expectancy than men..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 073- Social security. Costa Rican Social Security Fund Subtopics:

NOT APPLICABLE.

ARTICLE 73 OF THE POLITICAL CONSTITUTION. SURVIVOR'S PENSIONS. "...Social security is an essential instrument for creating social cohesion; it contributes to guaranteeing social peace and social integration; it is an indispensable part of the social policy of governments and is an important tool to prevent and alleviate poverty; correctly administered, it increases productivity by providing medical care, income security, and social services, and although it represents a cost for companies, it is also an investment in people and, at the same time, a support for them (see Social Security: A New Consensus. ILO. Geneva, 2002, pp. 1 and 2). Within the group of benefits covered by social security in Costa Rica are 'survivor's pensions' (pensiones por sobrevivencia), which are those that—upon prior fulfillment of the legally established requirements—can be granted to the family members who survive the active worker who dies, regardless of whether the cause of death is illness, work accident, or other causes. Thus, 'survivors' in the context of social security refer to the worker's partner and their orphans, with their protection acquiring special relevance because, precisely when an important part of a family's support is lost due to death, it becomes essential to guarantee their dependents the ability to continue having, at least, the minimum conditions necessary to survive while they manage to adjust to the new situation. It is here that social protection policies make sense, to the extent that they contribute to preventing and reducing poverty and inequality, and to promoting social inclusion and respect for human dignity; that contribute to providing people with a dignified life..." CO02/22 ... See more Content of Interest:

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

NOT APPLICABLE.

RIGHT TO IMMUTABILITY IN MATTERS OF SOCIAL SECURITY. "...In relation to this principle, it must be remembered that this Chamber has repeatedly indicated that no one has a right to the immutability of the legal system, that is, that the rules never change (see judgment number 6134-98 of 17 hours 24 minutes on August 26, 1998) and, in the case of special retirement and pension regimes, the legislator has full authority to make the modifications it deems pertinent to give sustainability to the regime, but also because these are solidarity systems that are built with the contributions of workers, employers, and the State in the legally established proportion, so that, in order to guarantee compliance with basic principles of social security and protection, it is the competence—and also the obligation—of the legislator to adopt the measures that are necessary to maintain the actuarial balance in these regimes, and this implies that the mutability of the system in this matter is directed at satisfying the interest of the collectivity and not the private interests that some of its members might have. It should be remembered that, even in this matter, in light of the social ends it protects, it might be possible that a modification could eventually occur that could be considered regressive, but this would be valid to the extent that it is by law, is justified by technical criteria, and adheres to parameters of reasonableness and proportionality..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 074- Inalienability of social rights Subtopics:

NOT APPLICABLE.

ARTICLE 74 OF THE POLITICAL CONSTITUTION. RIGHT TO RETIREMENT AND TO POSTPONEMENT. "...the right to retirement, as has been explained in its jurisprudence. Notwithstanding this, it is not possible to deduce from that fundamental right, or from any other, that there is a fundamental right to the postponement of retirement, hence everything related to this is a matter of legislative policy—in the cases of special regimes—or pertains to the constitutional competencies that correspond to the CCSS—in the case of the IVM regime—, so the fact that in a special or general regime this situation is not contemplated does not entail an unconstitutionality of that omission. Nor is the argument acceptable that the principle of equality is violated, given that in the case of the IVM regime this benefit is indeed provided for, while in the Pension and Retirement Regime of the Judicial Branch it is not, for the elementary reason that they are different regimes, of a different nature, with different retirement profiles—retirement age, contribution amount, retirement calculation, etc.—, hence it is not possible to deduce a violation of the right to equality, since the persons who belong to the general regime are not in the same situation as the persons who are in a special regime, nor are the actuarial projections in one regime and the other the same. It must be kept in mind that the right to equality before the law does not mean that the legislator must treat persons equally who are in regimes that, in some non-substantial aspects, have certain similar characteristics, because not every inequality has such magnitude or intensity that it harms their essential core; for such an event to occur, it is necessary that it involves odious discrimination, that it implies in itself or by its effects a violation of a fundamental right, a situation not present in the sub judice..." CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 073- Social security. Costa Rican Social Security Fund Subtopics:

NOT APPLICABLE.

ARTICLE 73 OF THE LAW OF CONSTITUTIONAL JURISDICTION. UNCONSTITUTIONALITY BY OMISSION. "...Finally, it must be kept in mind that unconstitutionality by omission occurs in those cases where the legislative branch fails to carry out an express mandate contained in the Constitution, or it involves a relative omission, that is, those cases in which differentiated treatment is given to groups that are in the same position without there being an objective and reasonable justification and without seeking the realization of a constitutional purpose..." CO02/22 ... See more Content of Interest:

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

NOT APPLICABLE.

DISSENTING VOTES AND SEPARATE NOTES: Magistrates: Castillo Víquez, Hernández López, Garro Vargas, Rueda Leal, Salazar Alvarado, Hernández Gutiérrez.

LEGISLATIVE PROCEDURE DEFECTS:

Ø Magistrate Castillo Víquez gives additional reasons regarding the violation of the principle of publicity.

Ø Magistrates Hernández López and Garro Vargas attach separate notes. Regarding the issue of the alleged defects in the Special Commission session of July 27, 2017, Magistrate Garro Vargas gives different reasons.

Ø Magistrates Salazar Alvarado and Hernández Gutiérrez dissent and declare that the challenged law presents an essential procedure defect consisting of the failure to consult the Judicial Branch on the text approved by Parliament by absolute majority and not qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), for affecting its organization, structure, functioning, and independence, which is why they deem it unnecessary to analyze other procedural and substantive defects raised by the plaintiffs; except those in which it is required to take a position so that a vote of complete conformity exists (Article 60.2, Civil Procedure Code).

REGARDING THE SUBSTANTIVE GRIEVANCES:

Ø Magistrate Castillo Víquez gives different reasons.

Ø Magistrate Garro Vargas, for her own reasons, partially grants this aspect of the action of unconstitutionality, ordering the partial annulment of the provisions in Articles 236 and 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial); likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution with respect to that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Judicial Branch Pension and Retirement Fund. Magistrate Hernández Gutiérrez gives additional reasons.

Ø Magistrate Rueda Leal and Magistrate Hernández López dissent and declare this aspect without merit, as they did in judgment No. 2020-19274 of 4:30 p.m. on October 7, 2020, because, according to the express text of Article 67 of ILO C102 of 1952 Social Security (Minimum Standards) Convention, the pension or retirement can be reduced as long as 40% of a reference salary is respected, which is not shown to be automatically and evidently transgressed by the content of the challenged norms.

THE CONSOLIDATED ACTIONS OF UNCONSTITUTIONALITY ARE DECLARED WITHOUT MERIT.

· Magistrates Salazar Alvarado and Hernández Gutiérrez declare this aspect of the action without merit, solely for reasons of form due to the absence of technical studies.

Ø Magistrate Garro Vargas gives different reasons.

Ø Magistrate Rueda Leal and Magistrate Hernández López dissent and partially grant the consolidated actions due to the existence of an unconstitutional omission in Ley 9544, for not contemplating gender criteria to establish a differentiated age so that women who contribute to the Judicial Branch Retirement and Pension Regime can retire or obtain a pension with a shorter period of service.

Ø Magistrate Hernández López also dissents and partially grants the consolidated actions because:

• a)considers it contrary to Constitutional Law to exclude from the benefits granted by Ley 7333 those persons who, at the time Ley 9544 challenged herein was enacted, had 25 years or more of contributing to the Judicial Branch Pension and Retirement Fund.
• b)due to the existence of an unconstitutionality by omission in the challenged Ley 9544, because the legislator does not give the same treatment before the law to Judicial Branch workers regarding the possibility of having incentives to postpone their right to retirement, according to the characteristics of their own regime.

Ø Magistrates Castillo Víquez and Rueda Leal, and Magistrates Hernández López and Garro Vargas, record separate notes.

CO02/22 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 8. IACHR JURISPRUDENCE Topic: CONSTITUTIONAL CHAMBER JUDGMENTS - I/A Court H.R.

Subtopics:

Contentious Case.

"...Finally, some of the plaintiffs have mentioned within this specific claim the existence of a violation of the American Convention on Human Rights, pointing out that the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos), as interpreter of said instrument, established the minimum conditions required of States for the respect of the right to social security within the framework of the inter-American Human Rights system. The interested parties submit that in the 'Muelle Flores vs. Peru' case, guidelines were established that are contradicted by the issuance of Ley 9544 in general, and in particular by transitory provision VI, which affects conventional rights of persons with less than 28 years and six months of service at the date of the reform's entry into force. On the subject, a review of the text of the cited decision allows the Chamber to conclude that said judgment contains relevant elements for the interpretation of the fundamental right to social security, but that they are neither relevant nor pertinent for the solution of this claim or this process in general. In the mentioned judgment, the Inter-American Court of Human Rights resolved the case of a person already retired, whose corresponding periodic payment that they had been receiving was ceased, due to the privatization of the public company that covered said payment. The case was even more serious, because the interested party obtained from the Peruvian justice system at least two final judgments in their favor, and yet, at the time of filing their complaint before the international justice body, they had not been able to achieve the effective resumption of the actual payment of their retirement. Finally, some of the plaintiffs have mentioned within this specific claim the existence of a violation of the American Convention on Human Rights, pointing out that the Inter-American Court of Human Rights, as interpreter of said instrument, established the minimum conditions required of States for the respect of the right to social security within the framework of the inter-American Human Rights system. The interested parties submit that in the 'Muelle Flores vs. Peru' case, guidelines were established that are contradicted by the issuance of Ley 9544 in general, and in particular by transitory provision VI, which affects conventional rights of persons with less than 28 years and six months of service at the date of the reform's entry into force. On the subject, a review of the text of the cited decision allows the Chamber to conclude that said judgment contains relevant elements for the interpretation of the fundamental right to social security, but that they are neither relevant nor pertinent for the solution of this claim or this process in general. In the mentioned judgment, the Inter-American Court of Human Rights resolved the case of a person already retired, whose corresponding periodic payment that they had been receiving was ceased, due to the privatization of the public company that covered said payment. The case was even more serious, because the interested party obtained from the Peruvian justice system at least two final judgments in their favor, and yet, at the time of filing their complaint before the international justice body, they had not been able to achieve the effective resumption of the actual payment of their retirement..." 11957-21 CO11/22 ... See more Resolution: 2021011957 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at seventeen hours zero minutes on the twenty-fifth of May of two thousand twenty-one.- Consolidated actions of unconstitutionality, brought by Mario Alberto Mena Ayales, of legal age, married twice, judicial retiree, with ID card 1-0525-0562, resident of San José, in his capacity as President of the National Association of Judicial Employees (Asociación Nacional de Empleados Judiciales); Juan Carlos Sebiani Serrano, bearer of identity card 1-0782-0001, in his capacity as President of the National Association of Professionals of the Judicial Branch (Asociación Nacional de Profesionales del Poder Judicial); Hernán Campos Vargas, with identity card number 1-0519-0160, as General Secretary of the Union of Workers of the Judicial Branch (Sindicato de Trabajadores y Trabajadoras del Poder Judicial, SITRAJUD); Yesenia Paniagua Gómez, with ID card number 1-0845-0494, in her capacity as President of the Association of Psychology Professionals of the Judicial Branch (Asociación de Profesionales en Psicología del Poder Judicial); Álvaro Rodríguez Zamora, identity card number 1-0477-0319, in his capacity as President of the Union Association of Criminalistics and Related Investigators (Sindicato Asociación de Investigadores en Criminalística y Afines); Johnny Mejías Ávila, with identity card 9-0044-0592, in his capacity as President of the Board of Directors, and Óscar Enrique Umaña Chacón, identity card number 3-0272-0995, as General Manager, both of the Savings and Loan Cooperative of Judicial Servants, Limited Liability (Cooperativa de Ahorro y Crédito de Servidores Judiciales, Responsabilidad Limitada, Coopejudicial, R. L.); Damaris Molina González, with identity card 2-0269-0487, in her capacity as President of the National Association of Retirees and Pensioners of the Judicial Branch (Asociación Nacional de Jubilados y Pensionados del Poder Judicial); Jorge Luis Morales García, identity card number 2-0399-0222, in his capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura, SINDIJUD); Ana Luisa Meseguer Monge, bearer of identity card 9-0030-0193, as President of the Costa Rican Association of Women Judges (Asociación Costarricense de Juezas); Carlos Álvarez Casasola, identity card number 1-396-124, in his capacity as President of the Loan and Discount Fund of the Employees of the Judicial Branch (Caja de Préstamos y Descuentos de los Empleados del Poder Judicial, CAPREDE); Adriana Orocú Chavarría, identity card No.

3-0317-0898, personally and in her capacity as President of the Asociación Costarricense de la Judicatura; Ingrid Fonseca Esquivel, holder of identity card 1-0698-0988; Freddy Arias Robles, with identity card 1-0727-0493; German Esquivel Campos, identity card number 1-0965-0647; Yerma Campos Calvo, with identity card number 1-0607-0534; Maribel Bustillo Piedra, identity card number 1-0683-0430; Pedro Valverde Díaz, identity card 1-0634-0537; Juan Carlos Cubillo Miranda, identity card number 5-0219-0266; Maykel Coles Ramos, holder of identity card 2-0452-0646; Alonso Hernández Méndez, with identity card number 1-1145-0746; Ana Lucía Vásquez Rivera, identity card 1-0690-0133; Estrella Soto Quesada, holder of identity card 2-0345-0973; Mario Alberto Sáenz Rojas, identity card number 1-0644-0873; Paula Esmeralda Guido Howell, identity card 1-0675-0975; Danilo Eduardo Ugalde Vargas, holder of identity card 4-0143-0612, in his capacity as special judicial agent of Eduardo Sancho González, identity card No. 1-0380-0073; Rosa Iris Gamboa Monge, identity card number 3-0120-0928; Magda Lorena Pereira Villalobos, with identity card 4-0105-0076; Alejandro López Mc Adam, holder of identity card number 6-0106-0565; Lupita Chaves Cervantes, identity card 1-0596-0893; Milena Conejo Aguilar, with identity card 1-0624-0446; Francisco Segura Montero, identity card number 1-0546-0928; Jorge Rojas Vargas, with identity card number 2-0310-0070; Álvaro Fernández Silva, card number 1-0288-0592; Luis Fernando Solano Carrera, identity card 1-0455-0325; Alfredo Jones León, identity card number 1-0467-0555; Rodrigo Montenegro Trejos, holder of identity card number 4-0075-0723; Alfonso Chaves Ramírez, identity card 1-0357-0392; Anabelle León Feoli, identity card 1-0466-0883; Ana Virginia Calzada Miranda, with identity card number 1-0434-0791; Eva María Camacho Vargas, with identity card 4-0113-0745; Rafael Ángel Sanabria Rojas, identity card number 3-0249-0099; Mario Alberto Houed Vega, holder of identity card 1-0376-0780; Rolando Vega Robert, identity card number 1-0503-0990; Adrián Vargas Benavides, with identity card 4-0105-0889 and Óscar Luis Fonseca Montoya, holder of identity card 4-0080-0442; so that the unconstitutionality of Law Number 9544 called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas” be declared in Toto and, specifically, against articles 224, 224 Bis, 226, 227, 236, 236 Bis and 239 and Transitory Provision VI of the Ley Orgánica del Poder Judicial, reformed by Law No. 9544 of April 24, 2018, as well as article 208 Bis of the Reglamento Interno de la Asamblea Legislativa. The Procurador General de la República, the President of the Asamblea Legislativa, and the President of the Corte Suprema de Justicia intervene.

Resultando:

1.- By document received in the Secretariat of the Chamber at 11 hours 24 minutes on May 22, 2018, the acción de inconstitucionalidad number 18-007819-0007-CO is filed, subscribed by Mario Alberto Mena Ayales in his capacity as President of the Asociación Nacional de Empleados Judiciales, against Law number 9544 in toto. He indicates that his represented party has legal standing (legitimada) based on the provisions of paragraph 2 of article 75 of the Ley de la Jurisdicción Constitucional, because it acts in defense of the corporate and collective interests of its members or associates, considering that the challenged norms abusively restrict the pension regime of judicial servants, which it considers seriously harms the interests of its associates regarding pensions. As relevant facts for the decision of this acción de inconstitucionalidad, he mentions: a) the substitute text (texto sustitutivo) approved in the Commission of the Asamblea Legislativa on September 13, 2016, was published in La Gaceta and duly consulted with the Poder Judicial; b) that substitute text was not the one approved in the first debate by the Legislative Plenary on October 30, 2017, published in Alcance No. 268 to Gaceta Digital No. 212 of November 9, 2017, since the text finally approved in the first debate was a substitute text introduced by motion via article 137 of the Reglamento de la Asamblea Legislativa; c) the text finally approved by the Legislative Plenary was published when the project had already been approved in the first debate and several deputies had even formulated the respective legislative consultation (consulta legislativa) before the Chamber; d) this last text was not consulted with the Corte Suprema de Justicia according to Constitutional article 167 because it contained norms that referred to the organization and functioning of the Poder Judicial. He indicates that there are constitutional procedural violations in the challenged Law: 1) He argues that in judgment number 2018-005758 at 15 hours 40 minutes on April 12, 2018, of the Consulta Legislativa Facultativa de Constitucionalidad of the project “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, legislative file (expediente) No. 19922, the Chamber held that when the Constitution refers to the organization and functioning of the Poder Judicial, it only produces an effect on the jurisdictional function, and not on the strictly administrative one (see votes 1998-005958, 2001-013273 and 2008-005179). 2) The cited majority vote (2018-005758 at 15 hours 40 minutes on April 12, 2018), concluded that the Asamblea Legislativa is not obligated to consult the bill with the Corte Suprema de Justicia under the terms provided in article 167 of the Constitución Política. 3) He considers this interpretation to be legally erroneous regarding the scope of article 167 of the Constitución Política and points out that none of the cited judgments deduce what the majority of the Chamber maintains. He adds that in Voto 5958-1998 the term “functioning” is developed, leaving out the content of the term “organization” of the Poder Judicial. 4) He argues that judgment 2001-013273, which refers to the bill “Modificación del Código Penal, Ley número 4573 y sus reformas”, involved a reform that directly affected the jurisdictional function of the Poder Judicial, not its administrative organization, so the Chamber also did not develop the latter topic there as it was unnecessary, but insofar as it modified aspects related to the organization or functioning -merely administrative- of the Judicial Archive, it unanimously held that modifying the scope of functions of the Judicial Archive, increasing the amount of data it must record, undoubtedly implies the variation of various rules concerning the functioning and organization of the Poder Judicial, and despite the foregoing, the Asamblea Legislativa omitted to carry out the respective consultation with the Corte Suprema de Justicia, without those aspects having previously been included in the texts consulted with the Corte Suprema de Justicia, for which reason the Chamber considered that a violation of the duty imposed in article 167 of the Constitución Política was incurred, regarding the functional independence recognized by the constituent power to the Poder Judicial. 5) The third judgment number 5179-2008 at 11 hours on April 4, 2008, does establish that matters related to the administrative organization of the Poder Judicial are included within the mandatory consultation stipulated in article 167 of the Constitución Política. 6) In that sense, he adds that, when referring to the terms “organization or functioning”, the Chamber said “…that a bill deals with such matters when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or of an administrative nature assigned to the Poder Judicial, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions…”. 7) He synthesizes by pointing out that the Chamber's own jurisprudence has considered that matters related to the administrative organization of the Poder Judicial, and not only matters concerning the direct or indirect effect on the jurisdictional function, obligate the legislative body to raise the consultation under the terms expressed in article 167 of the Constitución Política. He adds that the effect or modification of the administrative organization of the Poder Judicial, in general, and not only matters related to jurisdictional or judicial bodies in the strict sense, also has direct effects on the justice administration service it provides and on the independence constitutionally guaranteed to that Power and to the judges as officials responsible for imparting justice. 8) In judgment 3063-1995, the Chamber heard consolidated acciones de inconstitucionalidad against the Ley Marco de Pensiones, in which it was affirmed that it was not necessary to consult the Poder Judicial because that bill did not affect judicial officials. 9) In judgment 4258-2002, in which acciones de inconstitucionalidad were heard against article 4 of Law number 7605 of May 2, 1996, insofar as it reforms articles 224, 226 and 236 subsections 1) and 2) of the Ley Orgánica del Poder Judicial, which is Law number 7333 of May 5, 1993; and due to connection (conexidad) and consequence, article 33 subsection a) of the Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, he points out that the Chamber dismissed the alleged violation of article 167 of the Constitución Política because the reform to the pension regime of judicial servants that was challenged had no relation to the organization or functioning of the Poder Judicial, for whose definition it referenced what was said on the matter in the cited judgment 3063-1995, which had referred to the term of the functioning of the Poder Judicial, without making any reference to the issue of its organization. 10) He concludes by indicating that the aforementioned judgments do not exclude the matter relating to the Fondo de Pensiones y Jubilaciones del Poder Judicial from the mandatory consultation with the Corte Suprema de Justicia, but only insofar as the respective bill has no direct relationship with the organization and functioning of the Poder Judicial; topics that, he indicates, were not involved in the actions heard in the cited judgments. He states that articles 9 and 154 of the Constitución Política guarantee the functional independence of the Poder Judicial, which implies the power of that Power to establish its own organization in order to avoid the intrusion of political interests in the exercise of its function. He adds that article 167 of the Constitution protects organizational independence, both administrative and jurisdictional, and for that reason, he considers it necessary not to confuse or assimilate the jurisdictional function in a broad sense -including the auxiliary function in the jurisdictional one- with the strictly administrative function. He states that the jurisdictional function is special and different from the administrative function performed by officials of the Poder Ejecutivo or the decentralized sector. He points out that it is evident that the function of administering justice is very different from the function ordinarily exercised by the public administration, given the particularities and characteristics inherent to both functions, even though judges and judicial assistants are also public officials. He adds that one of the essential elements of the jurisdictional function is the independence to exercise it, which manifests itself in a double aspect, both from the angle of the Poder Judicial considered in itself, and that of the Judge and other assistants of the jurisdictional function. He recalls that the differentiating element of the jurisdictional act, and therefore of the jurisdictional function, is the fact that only its judgments attain the authority of material res judicata (cosa juzgada material), thereby declaring the legal truth for the specific case, and this implies not only great responsibility but also the need to surround the jurisdictional function with a series of principles and guarantees that allow the proper exercise of that function. He adds that no other state act has this constitutional guarantee, besides the fact that the Poder Judicial is the only body authorized to control the validity of the acts of other state institutions, through the contentious-administrative jurisdiction (controversy of legality) or the Sala Constitucional (constitutional and conventionality control). He points out that the foregoing implies that judicial officials exercise an extremely delicate function and have a great responsibility, which could not be carried out if the functional independence of the Poder Judicial and the judges who comprise it were not guaranteed. He affirms, within this line of thought, that there cannot be authentic judicial independence if the salaries and pensions of judges and justice assistants are not commensurate with their responsibilities, which are more serious than those of any other official exercising a merely administrative public function. He states that it also cannot be ignored that the creation and nature of the Fondo de Jubilaciones y Pensiones del Poder Judicial responds to criteria of stability, independence, preparation, and suitability, as established in article 192 of the Constitución Política, with the aim of promoting the permanence of trained and qualified personnel in the institution, therefore the reduction of retirement benefits represents a disincentive for the entry of valuable professionals who, considering the economic result of a future valuation, would prefer to pursue their professional career in another labor field. He indicates that it is clear that the judicial, prosecutorial, Public Defense, and general staff career is affected, who, having more burdens on their salary—4 times more than in other regimes—would receive a lesser benefit. He considers it important to take into account the negative opinion of the Corte Plena when responding to the hearing on the text approved in the Commission, indicating that a negative opinion was issued because the project affects the structure, organization, and functioning of the Poder Judicial, regarding the following aspects: a) the renewal of Poder Judicial personnel is affected because there would be older officials who continue working solely due to the decrease in income they would suffer if they retired; b) the judicial population is forced to choose between retiring to rest or evaluating their economic situation, forcing them to seek new sources of income to cover normal expenses and those typical of age; c) there are legal restrictions for retired persons to opt for another job, and because it is a reality that after 40 years of age there are limitations on labor reincorporation; d) it reduces the Poder Judicial's competitiveness in the labor market, to the detriment of the quality of the administration of justice; e) the salary for positions is lower due to the contribution to the pension and retirement regime, which is 4 times greater than the contribution of other regimes, which also hinders the recruitment of human resources and affects public service; f) that contributions were made at a higher percentage to a regime with the expectation of having a pension that allows them to satisfy their needs and enjoy a peaceful retirement with quality of life; g) the imposition of the new tax burden affects vulnerable population groups such as older adults, who are the weakest part and require greater protection from the State; h) that a tax is imposed at a time of life when the person is most vulnerable, requiring greater medical attention and special care, despite having contributed to the regime during their working life with the expectation of having the resources planned to face this process, and if this bill is approved, said life plan would be truncated; i) it would cause a significant social impact because people in retirement lose an important part of their income but retain a status of pre-established expenses, and this affects the objective of a pension system, which is for the person to have sufficient income during life after work, especially when they continue to have other older adults or minors under their care and support, and this affects the economic aspect but also health. He states that judicial officials cannot be compared, much less equated, with the remaining State officials, neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights, given that they find themselves in factually different situations. He considers that the independence of the Poder Judicial, both organic and functional, is presented as a sine qua non condition for the exercise of the jurisdictional function, which is very delicate because the Judge is responsible for deciding on the sole and possible interpretation of the law, the Constitution, and the conventionality parameter, which would be impossible without due independence. He adds that this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the judge proper and for the personnel who assist and support them in their function; therefore, in matters of remuneration and retirement, the servants of the Poder Judicial cannot be equated with those of the public sector. He adds that the need to compensate for the complexity and difficulty involved in exercising the jurisdictional function justifies that the pension of judicial servants is not the same as that of the rest of the administrative public sector; what is decided with the force of res judicata in judicial instances has transcendental effects on legal certainty and on the law in force in a society and, therefore, on social peace. He states that judicial independence in a Constitutional State of Law has an institutional projection before the other Powers, which also necessarily implies the personal and functional independence of the figure of the Judge, not only in relation to those other Powers of the State but even before the high-ranking officials of the Poder Judicial, therefore a State of Law does not exist if the Poder Judicial—with all its servants included—does not have real and effective independence. He states that judicial independence is an institutional guarantee established at the constitutional level, as well as in the American Convention on Human Rights, which enshrines it as a human right insofar as it guarantees that persons must be judged by an independent and impartial tribunal (article 8.1 of that Convention). He argues that the need for tribunals to be independent and impartial gives the Poder Judicial a particular and specific nature, distinct from that of other State institutions, because it confers upon it a shield of protection against the intrusion of political power, from which those other institutions are not protected. Since the Poder Judicial administers justice, and given that this justice must be impartial and free from any external pressure, economic pressure, whether through salary or through the amount and conditions of the retirement of judges and other justice assistants, plays a transcendental role in the achievement of real and effective independence of the Poder Judicial. The challenged Law violates article 167 of the Constitución Política: He considers this to be so because it contains a series of regulations affecting the organization and functioning of the Poder Judicial, and therefore, there was an obligation to consult the respective project with the Corte Suprema de Justicia as provided in Constitutional article 167. He indicates that article 239 of the law creates a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, which it defines as a body of the Poder Judicial, with functional, technical, and administrative independence, to exercise the faculties and powers that the law grants it, assigning it a series of competencies such as increasing the worker contribution to the Fondo de Pensiones and reviewing retirement applications, thereby producing a modification in the structure of the Poder Judicial. He points out that said article creates, ex novo, an administrative body and assigns it within the structure of the Poder Judicial, with determined competencies and powers; at the same time, competencies and powers previously granted—by formal law—to the Consejo Superior del Poder Judicial (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva, and Departamento Financiero Contable) are subtracted and eliminated. He considers that article 240 is in the same situation as article 239 because it regulates matters related to the administrative organization of the Poder Judicial, concerning the composition and designation of the members of the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, their term of office, the designation of the person who will preside over it, and the requirements to be a member of that Junta, among others. He argues that the Corte Plena is imposed the obligation to issue a regulation for the election of the members of that Junta Administrativa, thus assigning it a competency it currently does not have. He points out that the Asamblea Legislativa was obligated to consult the project with the Poder Judicial, in accordance with the provisions of article 167 of the Constitución Política, given that these regulations modify the administrative organization of the Poder Judicial with the creation of a new administrative body and the suppression of competencies of the Consejo Superior (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva, and Departamento Financiero Contable) in favor of that newly created body, which affects the independence of that Power of the Republic. He points out that it must be remembered that what was approved in the first debate by the Legislative Plenary on October 30, 2017, published in Alcance No. 268 to Gaceta Digital No. 212 of November 9, 2017, was a substitute text, introduced by motion via article 137 of the Reglamento de la Asamblea Legislativa; this latter text was not consulted with the Corte Suprema de Justicia as was appropriate. He reiterates that the defect detected in the legislative procedure for approval of the challenged law, due to the omission of consulting the Corte Suprema de Justicia about the substitute text approved in the first debate, must be declared unconstitutional, given that this procedural omission violated the provisions of article 167 of the Constitución Política because this law affects the administrative organization of the Poder Judicial due to the creation of a new administrative body within its structure, granting it substantial competencies in matters of pensions and retirements, in addition to suppressing competencies previously granted by law to the Consejo Superior del Poder Judicial (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva, and Departamento Financiero Contable). He adds that the defect of lack of consultation with the Corte Plena on the text introduced in the first debate could not have been corrected in the second debate, even if the project had been approved by a qualified majority, since such validation would have only operated if it had involved the approval of a text mandatorily required to be consulted with the Poder Judicial, due to affecting its organization, structure, and functioning—as in this case—, and once consulted with the Corte Suprema de Justicia, the legislative body persisted in approving it, departing from the technical opinion provided by the judicial body. He indicates that in this case, the situation is different because it involved the approval in the first debate of an unconsulted text, in contravention of the provisions of article 167 of the Constitución Política; consequently, this procedural defect is insurmountable and uncorrectable. He argues that although the previous text approved by the Special Commission in the session of July 27, 2017, was indeed consulted with the Court, since the Corte Plena expressed disagreement with that text according to the resolution adopted in session No. 27 of August 7, 2017, Article XXX, a qualified vote by the Plenary became mandatory, in accordance with the provisions of article 167 of the Constitución Política, which also was not done. He points out that this defect also invalidates the challenged law due to a procedural defect, given that the challenged law was approved by 31 votes when it required at least 38. The unconstitutionality of the challenged law due to late publication of the substitute text approved in the first debate: He points out that subsection h of point 2 “Mociones de Fondo” of the procedure followed in the approval of the challenged law established that the publication of substitute texts was mandatory, which is inferred from its literal wording: “h.- If during the review of the file in its commission proceeding, a substitute text motion is approved, or when the commission agrees on changes that substantially modify the bill, the Presidency of the Commission shall request that the Legislative Directorio agree to its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the review of the project shall be suspended…”. He points out that the rules that the Legislative Plenary agreed upon for the processing through a special procedure of the challenged bill, via article 208 bis of the Reglamento Legislativo, are of mandatory and strict compliance, given that it is a much more restrictive procedure than the ordinary one, where, in particular, the democratic and publicity principles must be respected. He adds that the lack of publication is an essential defect per se, so the fact that a substitute text is published after its approval in the first debate does not have the virtue of correcting the noted defect. He states that this has been upheld by the Chamber's jurisprudence when analyzing the project called “Ley de Solidaridad Tributaria” processed in legislative file No. 18261, with judgment number 2012-004621 at 16 hours on April 10, 2012, stating in relevant part that “…from reading the content of the substantive motions (mociones de fondo) approved in the special commission, this Constitutional Tribunal unanimously considers that there was an essential defect in the legislative procedure of an evident and manifest nature that breached the principles of publicity and equality by omitting their publication, given that, together, they caused a substantial modification of the original text”. He adds that the substitute text approved in the first debate by the Legislative Plenary on October 30, 2017, was published in Alcance 268 to Gaceta Digital No. 212 of November 9, 2017, whereas the legislative consultation was filed on November 1, 2017. He adds that, in other words, not only was that text published late, after being approved in the first debate, but at the time the legislative consultation was filed before the Chamber, it had not been published, thereby also producing another violation of the principle of publicity and, therefore, of an essential step of the legislative procedure. He adds that the publication of the substitute text of the bill should have been carried out before its approval in the first debate since, having been done afterwards, the democratic principle was violated by preventing the citizenry from knowing the substitute text of the project prior to its approval. He indicates that, consequently, the late publication has the same effects as the lack of publication on the legislative procedure, given that the purpose of the former is for the population to know, prior to its approval, the final text of the bill, so that it can duly supervise parliamentary work; a right of the citizenry that was rendered nugatory in the case of processing the challenged norm, which implies that it was approved with an essential defect in the legislative procedure, which cannot be validated by the subsequent publication of the text approved in the first debate. He adds that, consequently, by not strictly observing the special procedure established via article 208 bis of the Reglamento de la Asamblea Legislativa in the processing of the challenged law, due to the substitute text being published after its approval in the first debate and after several deputies formulated the respective legislative consultation, the democratic and publicity principles were grossly violated, without the late publication of the approved final text having the legal virtue of validating the spurious procedure through which the challenged law was approved.

It concludes by requesting that Law number 9544 be declared unconstitutional for violating Article 167 of the Political Constitution, the democratic principle, and the principle of publicity of the law.

2.- Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado indicated that, given that this acción de inconstitucionalidad challenges Law No. 9544 of April 24, 2018, "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial contenido en la Ley No. 7333 Ley Orgánica del Poder Judicial de 5 de mayo de 1993 y sus reformas," they consider there is grounds to recuse themselves from hearing this matter, given that whatever is decided directly affects them, and therefore, they referred the case file to the Acting Presidency of the Chamber, so that it may resolve accordingly, pursuant to Article 6 of the Ley de la Jurisdicción Constitucional.

3.- Substitute Magistrate José Paulino Hernández Gutiérrez submits a document recusing himself from hearing this matter, stating that, at that time, he was serving as a tenured Judge of the Tribunal Contencioso Administrativo, as well as being a Substitute Magistrate of the Constitutional Chamber, considering that the decision in this specific case could have an impact on his expectation as a Judge of qualifying for his future pension under the pension regime of the Judicial Branch. Based on these reasons, he decides to withdraw from participating in the hearing and resolution of this acción de inconstitucionalidad.

4.- Substitute Magistrate Marta Esquivel Rodríguez submits a brief stating that she recuses herself from hearing this matter because she serves as a Labor Judge and Substitute Magistrate of the Constitutional Chamber, considering that the decision in this specific case could have an impact on her expectation as a judge of qualifying for her future pension under the retirement and pension regime of the Judicial Branch, reason for which she withdraws from participating in the hearing and resolution of this acción de inconstitucionalidad.

5.- Having reviewed the statement from Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrate José Paulino Hernández Gutiérrez, as well as Substitute Magistrate Marta Esquivel Rodríguez, regarding the reason they consider they should be disqualified from hearing this proceeding, through a resolution issued at 10:40 a.m. on June 5, 2018, the Acting Presidency of the Constitutional Chamber ordered that they be separated from hearing the matter and that the relevant communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Ley de la Jurisdicción Constitucional.

6.- By means of an official communication added to the electronic case file on June 11, 2018, the Presidency of the Supreme Court of Justice sent the result of drawing #6161 conducted for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrate José Paulino Hernández Gutiérrez, as well as Substitute Magistrate Marta Esquivel Rodríguez, for having recused themselves from hearing this acción de inconstitucionalidad. It is reported that the selected Substitute Magistrates are: Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez, and Ana María Picado Brenes.

7.- Substitute Magistrate Alejandro Delgado Faith submits a document on June 12, 2018, whereby he states that, given that his partner, Dr. Rubén Hernández Valle, is the lead attorney for this acción de inconstitucionalidad, he decides to file a recusal motion, therefore requesting that he be separated from hearing the case, noting that he makes this request despite not having participated, either directly or indirectly, in the preparation and/or discussion of the action, as well as affirming that he has no relationship with the parties or direct interest in the substance of the matter. He argues that he raises his request to be separated from hearing this case file out of respect for the parties and for the principles of sound Administration of Justice and transparency.

8.- Through a document added to this case file on June 13, 2018, Substitute Magistrate Ana María Picado Brenes appears to state that she must recuse herself from hearing this matter because she has been a beneficiary of the retirement and pension regime of the Judicial Branch since July 2016 when she took her retirement, noting that for this reason she has a direct interest in the outcome of this acción de inconstitucionalidad. She argues that the variations contemplated in the law being challenged, with respect to the previous regime under which she retired, harm her on a personal and family level because she has a minor daughter and a young autistic son, who depend on her, such that the decrease in the real amount of the retirement pension is detrimental to her household. She argues that she made the decision to take retirement not only because she met the requirements established in the regime in force, but also because the terms in which said retirement was approved were convenient for her; that is, the approved percentage as well as the amount at which her retirement was set were convenient for her. She states that, notwithstanding the foregoing, both the increase in the monthly contribution she would have to pay to the Pension Fund and the Solidarity Tax regulated by the current law seriously harm her because they are detrimental to the monthly amount she receives as retirement pension. She considers that for such reasons, her recusal is proper, therefore referring the case file to the Acting Presidency of the Chamber so that it may resolve on the grounds invoked for her separation, in accordance with the provisions of Article 6 of the Ley de la Jurisdicción Constitucional.

9.- In an official communication submitted to the Chamber Secretariat on June 13, 2018, Substitute Magistrate Alicia Salas Torres appears to state that, for the sake of the principles of transparency and probity that must govern the function of judges, as well as the principle of impartiality that is the foundation of the jurisdictional function, she considers she is obliged to submit her recusal from hearing this action in accordance with Articles 6 of the Ley de la Jurisdicción Constitucional, 31 of the Ley Orgánica del Poder Judicial, 49 and 51 of the Código Procesal Civil, due to the existence of a direct interest -in her case- in the outcome of this action. She indicates that she is a retired employee of the Judicial Branch and currently a substitute magistrate, such that her situation and her acquired right are directly regulated in the articles concerning retirements of the Ley Orgánica del Poder Judicial and its reform, which is being challenged in this action. She adds that she also depends absolutely and economically on the Pension and Retirement Fund, so the decision in this action can directly affect her, since the regulation challenged is what governs her retirement and any change that might occur could affect her. Based on the foregoing, she requests that the case file be referred to the Presidency of the Chamber to resolve the grounds invoked for her separation, in accordance with Article 6 of the Ley de la Jurisdicción Constitucional.

10.- Through a writ submitted to this case file on June 14, 2018, Mauricio Chacón Jiménez appears in his capacity as Substitute Magistrate to state that, being a judicial officer with more than 27 years of career as a Judge, he is compelled to submit his recusal from participating in the admission, discussion, and decision of this acción de inconstitucionalidad because the eventual decision directly impacts his retirement expectations. He indicates that, applying the provisions of Article 6 of the Ley de la Jurisdicción Constitucional, he requests the President of the Chamber to order whatever is deemed appropriate.

11.- Jorge Araya García appears in his capacity as Substitute Magistrate of the Constitutional Chamber by means of a document submitted on June 14, 2018, to indicate that, in accordance with Article 6 of the Ley de la Jurisdicción Constitucional, he formally submits his recusal from sitting on the Court that will hear this acción de inconstitucionalidad. He states that he has held the position of Substitute Magistrate of this Chamber since December 2005, and that from that date until January 2012, he had to sit on the court for extensive periods, contributing to and, consequently, helping to form the Pension and Retirement Fund of the Judicial Branch. He adds that, in his capacity as Substitute Magistrate and because he was not a regular judicial officer at that time, the only real option for retiring at that date would be through the pension and retirement regime of the Caja Costarricense de Seguro Social; however, he would not be entitled to a refund of the amount of the contributions he has made to the formation of the Pension and Retirement Fund of the Judicial Branch since December 2005. He warns that Law No. 9544, which is being challenged in this action, contains a normative, express, and specific provision -Article 234- that clearly benefits him, generating a direct interest since it would allow him to transfer his contributions from the Pension and Retirement Fund of the Judicial Branch to the Caja Costarricense de Seguro Social, so that those contributions are counted within the Régimen de Invalidez, Vejez y Muerte, for the same purpose of computing contributions and thus having a more dignified retirement expectation. He concludes by requesting the Acting Presidency of the Constitutional Chamber to have him recused from hearing this acción de inconstitucionalidad due to the reasons indicated and within the framework of total ethical transparency; essential values that must accompany the conduct of every constitutional judge.

12.- In a document submitted on June 15, 2018, Hubert Fernández Argüello appears in his capacity as Substitute Magistrate to state that he believes he has grounds for recusal within this acción de inconstitucionalidad because he has been a contributor to the Pension and Retirement Fund of the Judicial Branch since 1990. He states that, in that capacity, the decision in this matter could affect his rights and interests as a member of that retirement regime, which, in his opinion, fits the assumption of subsection 1) of Article 49 of the Código Procesal Civil.

13.- Rónald Salazar Murillo appears in his capacity as Substitute Magistrate of the Constitutional Chamber, through a document provided on June 28, 2018, to state that he is currently retired under the Retirement and Pension Regime of the Judicial Branch and that, for that reason, he must recuse himself from hearing this proceeding because it affects him directly, requesting that this be so declared and that the corresponding person be called to sit on the court.

14.- In a resolution of the Acting Presidency of the Constitutional Chamber issued at 8:50 a.m. on June 29, 2018, and having reviewed the statement from Substitute Magistrates Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez, and Ana María Picado Brenes, it was ordered that they be separated from hearing this proceeding and that the relevant communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed, according to the provisions of Article 6 of the Ley de la Jurisdicción Constitucional.

15.- By means of an official communication added to the electronic case file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of drawing #6233 conducted for the substitution of Magistrates Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez, Alejandro Delgado Faith, and Ana María Picado Brenes for having recused themselves from hearing this acción de inconstitucionalidad. It is reported that the Chamber had originally requested 7 substitutes and there are only 3 available, so the drawing was conducted with the substitutes available, resulting in the selection of the Substitute Magistrates: Ileana Isabel Sánchez Navarro, María Lucila Monge Pizarro, and Anamari Garro Vargas.

16.- Through an official communication submitted on July 4, 2018, Substitute Magistrate Lucila Monge Pizarro appears to state that, at that time, she was serving as a tenured Judge 5 on the Tribunal de Apelación de Sentencia Penal de Guanacaste and as a Substitute Magistrate of the Constitutional Chamber, such that the decision in this specific case could have an impact on the expectation of an eventual retirement, and therefore, she believes she has grounds to recuse herself from hearing this matter in order to safeguard the guarantee of impartiality of the judge. She requests that the case file be referred to the Acting Presidency of the Chamber so that it may resolve on the grounds invoked for her separation, in accordance with Article 6 of the Ley de la Jurisdicción Constitucional.

17.- On July 4, 2018, Substitute Magistrate Ileana Sánchez appears to state that she serves as Judge 4 of the Tribunal Contencioso Administrativo, as well as being an active contributor for 20 years to the Pension Regime of the Judicial Branch, indicating that, because that regime is being challenged, she could be affected since she does not currently have a right declared in her favor with respect to it. She considers it necessary to recuse herself from hearing this action because she has a direct interest in the outcome, requesting that the case file be passed to the Acting Presidency of the Chamber so that the corresponding decision may be made.

18.- On July 9, 2018, Substitute Magistrate Anamari Garro Vargas appears to request that she be recused from hearing this acción de inconstitucionalidad because her brother is a Superior Labor Judge and therefore a contributor to the Judicial Branch Regime, and her maternal aunt, Mrs. María Eugenia Vargas Solera, is a pensioner of that Regime. She indicates that she is compelled to submit this request because the decision in this action directly affects the sphere of both relatives, with whom she is linked by a bond of consanguinity in the first and second degree, respectively. She recalls that the rules governing the grounds for disqualification from hearing a matter in the constitutional jurisdiction are provided, in order of priority, in Articles 4, 6, and 14 of the Ley de la Jurisdicción Constitucional (LJC), Articles 25 and 31 of the Ley Orgánica del Poder Judicial (LOPJ), and Article 49 of the Código de Procedimientos Civiles (CPC). She indicates that the Ley de la Jurisdicción Constitucional -Articles 4 and 14- refers back to the Ley Orgánica del Poder Judicial, and that Article 31 thereof applies only when there is no express rule, which occurs in this matter since it concerns an acción de inconstitucionalidad, bearing in mind that grounds for recusal relate not only to the procedural parties but also to the object of the proceeding; in this case, she points out that the effects of declaring the challenged norms unconstitutional, or the rejection of the action, would have a very direct impact on the sphere of each of the mentioned relatives. She adds that, in turn, the provisions of Article 14 of the Ley de la Jurisdicción Constitucional refer back again to the CPC and the general principles of law. She adds that, by provision of the LJC, the LOPJ, and the CPC, there are grounds for disqualification that, in her opinion, apply to her, such as Article 49, subsections 2 and 6 of the CPC: the first subsection speaks of full brothers/sisters and uncles/aunts; and the second refers to any of the blood ascendants, thus including her maternal aunt. She argues that the basis for resolving this recusal request is the existence of a direct interest of her immediate relatives in the case and in the specific points under study in this acción de inconstitucionalidad; that is, it is not the direct interest of the Magistrate making the request, but the direct interest of her immediate relatives, and she affirms that this position has been accepted when the interests are not of the personal sphere of the relative but rather of the institution where they work, and when the bond was not so close (see resolution of the Constitutional Chamber issued in case file No. 17-017148-0007-CO). She affirms that she clearly and patently has grounds for disqualification from hearing this matter, established in the laws and in the Chamber's jurisprudence, for which she requests that the case file be referred to the Presidency of the Chamber so that it may resolve on the alleged grounds and this recusal request be accepted in accordance with Article 6 of the Ley de la Jurisdicción Constitucional, the applicable regulations, and existing jurisprudence on the matter.

19.- In a resolution of the President of the Constitutional Chamber -Magistrate Castillo Víquez- issued at 2:40 p.m. on August 3, 2018, the situation of the Proprietary and Substitute Magistrates who were separated from hearing this acción de inconstitucionalidad was analyzed, and in that sense, it was recalled that Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, and Substitute Magistrates José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez had been separated. It was also noted that by resolution of 8:50 a.m. on June 29, 2018, Substitute Magistrates Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez, and Ana María Picado Brenes had been separated, also noting that the recusal of Substitute Magistrates Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas was pending resolution. It indicates that none of the 5 Proprietary Magistrates appointed at that time, nor 9 of the 12 Substitute Magistrates, can hear the 3 recusals raised by them. It recalls that Article 29, subsection 2) of the Ley Orgánica del Poder Judicial provides, in what is relevant:

"When, due to disqualification, challenge, excuse, or other reason, a court officer must be separated from hearing a specific matter, their absence shall be filled as follows:

(…)

2.- Magistrates, by the substitutes called for that purpose. Members of collegiate courts shall substitute for each other and, if the cause covers all or the majority, by their substitutes. When the cause covers both proprietary and substitute magistrates, the case must be heard by the proprietary magistrates, notwithstanding the cause and without disciplinary liability for them." The President of the Constitutional Chamber states that, consequently and in accordance with the transcribed rule, by force of law, it falls to him, in his capacity as President of the Constitutional Chamber, to resolve the recusal requests on file. He recalls that this Court has a dual role as controller of the constitutionality of norms of any nature and of acts subject to Public Law (Article 10 of the Political Constitution), that is, as guarantor of the principle of constitutional supremacy and as judge of infractions to the Fundamental Rights established in the Constitution and international instruments (Article 48 ibidem), to ensure their direct and immediate efficacy, and that, to achieve those ends, the Chamber resolves and hears the matters brought before it in a single instance and with jurisdiction over the entire national territory, as it is the only specialized Court in the matter (Article 11, paragraph 2 of the Ley de la Jurisdicción Constitucional). He adds that the constitutional jurisdiction, unlike the ordinary or common jurisdiction, must be governed by its own particular rules to prevent any appellant or appealed authority from being able to separate Magistrates from hearing a specific and determined matter, contrary to the general principles of Law regarding the non-waivability of competences, the hermetic completeness of the legal system, and the natural judge. He adds that Article 4, paragraph 2 of the Ley de la Jurisdicción Constitucional provides that the organic regime of this Court is that established in that legislative body and the Ley Orgánica del Poder Judicial; a regulatory text that in its Article 31 recognizes the peculiarity of the Constitutional Jurisdiction by stating that regarding disqualifications, excuses, and challenges, it "(…) shall be governed by its own norms and principles." He adds that one of the principles of Constitutional Procedural Law (Article 14 of the Ley de la Jurisdicción Constitucional) is that of the natural judge (Article 35 of the Political Constitution), according to which no one may be judged by an ad hoc tribunal or one specially appointed for the case "(…) but exclusively by the tribunals established in accordance with this Constitution." He points out that the constitutional judge cannot be considered a simple public official or a judge of ordinary legality, and in their primary role as controller of the constitutionality of the norms of the legal system, the constitutional judge sees themselves daily confronted with resolving situations where an inconveniently broad interpretation of the notion of direct interest, such as, for example, in tax, social security, or electoral matters, to mention just a few, would oblige them to recuse themselves from hearing matters consubstantial to their function, and they should not be recused or have to recuse themselves in each of these matters, as that would distort their work as supreme judge of the Political Constitution. He argues that the regime of excuses, recusals, and challenges for Magistrates of the Constitutional Chamber is a highly exceptional regime, and consequently, the simple challenges, recusals, and excuses regulated in ordinary procedural legislation are not applicable to them. He states that the declarations made by Substitute Magistrates Sánchez Navarro and Monge Pizarro as active contributors to said Fund reveal the direct interest they hold in the resolution of this proceeding; meanwhile, Magistrate Garro Vargas argued that her brother is a contributor to the Judicial Branch regime, so that the decision personally affects her direct relative. He argues that precisely this direct interest in the point submitted for their consideration obliges the Presidency of the Constitutional Chamber, in the terms set forth and as a very restrictive ground, to separate Substitute Magistrates Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas from hearing this proceeding. He adds that, in this case, the entirety of the Proprietary and Substitute Magistrates designated to exercise the competences of this Chamber have grounds for recusal, which would result in the impossibility of forming a Chamber with 7 Magistrates for its resolution; however, the Chamber is constitutionally obliged to resolve the matters submitted for its consideration, and circumstances such as those now arising -lack of the Proprietary and Substitute Magistrates necessary to form a Chamber- do not impair that obligation or relieve this Court of its fulfillment. He notes that the Chamber, on previous occasions, has been confronted with similar situations in which it has ordered, in what is relevant, the following:

"Therefore, the legal system must be integrated to extract the rule that will allow this Chamber to be integrated with the members necessary to resolve the matters before it. The key is established in Article 14 of the Ley de la Jurisdicción Constitucional (…). This norm allows the Chamber to integrate the legal system with the principles of Constitutional Law, Public Law, Procedural Law, and even International or Community Law, in order to resolve legal gaps such as the one now presented. For that integration, the special and particular nature of the constitutional jurisdiction must also be kept in mind, to which only the principles and norms of common law that are not incompatible with that nature may be applied. Furthermore, on other occasions, this Chamber has applied the referenced article in order to integrate the norms that regulate it, in particular, regarding the acceptance of recusals by Proprietary Magistrates and their authorization to hear a specific matter. Thus, in the resolution issued at 3:30 p.m. on May 17, 1991, in case file number 91-000778-0007-CO, it applied the cited Article 14 of the Ley de la Jurisdicción Constitucional and ordered that: '…we find ourselves before a norm formulated by a text of constitutional value, but lacking the rules that make its practical application possible, in which case, so that the norm is not a dead letter, the Judge must develop the necessary rules to do so, which on this occasion are constructive rules rather than objective norms. The Judge must eliminate the "dead angles of jurisdictional control" and ensure full application of the legal norm.' This is a clear reference to the unavoidable duty of this Chamber to hear the matters placed under its control. Likewise, Article 29, subsection 2) of the Ley Orgánica del Poder Judicial provides a solution when a ground for recusal covers both Proprietary and Substitute Magistrates, a situation that would make it impossible to resolve the case. According to the rule established there, it falls to the Proprietary Magistrates to hear those matters by force of law, without any disciplinary liability reaching them for it. This constitutes, then, a normative justification cause that frees from all liability, including criminal, the Proprietary Magistrates who hear a matter in which all the substitutes, or at least those necessary to form a Chamber, have some ground for recusal or disqualification from hearing that same matter, which is logical and necessary, since otherwise, there would be a material impossibility for the Chamber to resolve the case in question. A state of necessity therefore arises that makes it impossible to apply the provisions of Article 6 of the Ley de la Jurisdicción Constitucional with respect to the substitution of Proprietary Magistrates who have a ground for recusal, challenge, or disqualification, whereby the private interest must yield to the public interest for the sake of the existence of the constitutional jurisdiction. Consequently, in this case, it is not possible to accept the recusal raised by the Proprietary Magistrates of this Chamber, because that would place this Court in a material impossibility of resolving it, and therefore, the appropriate course is to deny the recusal raised by the Proprietary Magistrates mentioned below and to authorize those necessary to form a Chamber in order to hear this matter" (see resolution issued at 1:58 p.m. on January 9, 2013, in case file No. 12-006848-0007-CO; in the same vein, among others, resolution issued at 9:04 a.m. on August 16, 2013, in case file No. 12-011335-0007-CO; resolution issued at 3:57 p.m. on January 29, 2016, in case file No. 16-000620-0007-CO; resolution issued at 8:42 a.m. on September 7, 2017, in case file No. 17-006076-0007-CO, and resolution issued at 10:40 a.m. on February 27, 2018, in case file No. 17-017148-0007-CO).

He argues that, according to the transcribed resolution, Article 14 of the Ley de la Jurisdicción Constitucional, and Article 29, subsection 2) of the Ley Orgánica del Poder Judicial, it falls to the Proprietary Magistrates to hear those matters by force of law, without any disciplinary liability reaching them for this. He states that the foregoing constitutes, then, a normative justification cause that frees from all liability, including criminal, the Magistrates who hear a matter in which the Substitute Magistrates necessary to form the Court have some ground for recusal or disqualification from hearing the same matter. He concludes by noting that by virtue of the considerations made and applying the general principles of Law regarding the non-waivability of competences, the hermetic completeness of the legal system, and the natural judge, the appropriate course is to authorize, by force of law, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez and Marta Eugenia Esquivel Rodríguez to hear this proceeding.

It concludes by considering the substitute Magistrates Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas as separated from the knowledge of this proceeding, ordering the continuation of the case file processing.

20.- On November 6, 2018, Magistrate Jorge Araya García files a formal recusal from hearing this action of unconstitutionality, indicating that from December 2005 until October 31, 2018, he held the position of substitute Magistrate of the Constitutional Chamber, serving there on numerous occasions, even for extended periods, for which reason he was contributing to and building up the Judicial Branch Retirement and Pension Fund. He adds an additional element for considering that he has a new ground for recusal, and that is that on October 31, 2018, he was formally elected by the Legislative Assembly of Costa Rica as Proprietary Magistrate of the Constitutional Chamber; a position he accepted and swore to on November 1, 2018, and therefore, by virtue of the provisions of the Organic Law of the Judicial Branch, he has been obligated to contribute since then to the referenced pension and retirement regime, but not to the regime administered by the Costa Rican Social Security Fund, which was the one he contributed to when he was not exercising the position of substitute Magistrate and was in the condition of an independent worker. He states that given the number of contributions paid into the regime administered by social security, the real retirement option he would have in the future is through that regime and through the Judicial Branch regime, since, in accordance with the first paragraph of Article 234 of the Organic Law of the Judicial Branch, there is a high possibility that when the time for retirement arrives, he will lack the established requirements and be unable to access retirement under the Judicial Branch Retirement and Pension Regime; on the contrary, he would face a patrimonial loss by being prevented from accessing the contributions paid into this latter regime, or face the very high costliness that its enablement would entail, to which he is certainly not obligated. He adds that, however, the second paragraph of the same Article 234 does establish the possibility that upon a withdrawal without the retirement conditions for said regime having yet been met, the paid contributions be transferred to the regime of the Costa Rican Social Security Fund, which would be done through an actuarial settlement. He states that, in that sense, this rule contains a provision that is favorable to him and in which he has an evident direct interest, in addition to it being a differentiating element from the condition of the other Proprietary Magistrates of the Chamber, since the referenced rule would allow him, at the time of a future retirement, to transfer his contributions from the Judicial Branch Retirement and Pension Regime to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund. He indicates that, accordingly, since Title IX of the Organic Law of the Judicial Branch is under challenge through this action of unconstitutionality, both for substantive and procedural reasons, and the cited rule contains a provision that benefits him, he believes he has grounds to recuse himself from hearing this action since whatever is ultimately decided directly affects his interests and rights. He argues that, for this reason, he requests the Presidency of the Chamber to declare that he is recused from hearing this action of unconstitutionality.

21.- In a resolution of the President of the Constitutional Chamber at 3:05 p.m. on November 6, 2018, the new recusal request filed by Magistrate Jorge Araya García was considered, since, as of November 1, 2018, he assumed the position as Proprietary Magistrate of the Chamber, and this led him to file this new petition. On this matter, it is stated that the provisions of the resolution issued at 2:40 p.m. on August 3, 2018, in this case file, through which the other proprietary Magistrates of the Chamber were enabled, are fully applicable:

"According to the provisions of the transcribed resolution, as well as what is established in Article 14 of the Constitutional Jurisdiction Law and Article 29, subsection 2), of the Organic Law of the Judicial Branch - supra Considerandos I and III -, the knowledge of these matters corresponds to the Proprietary Magistrates by legal imperative, without disciplinary responsibility reaching them for this. The foregoing constitutes, then, a normative justification cause that releases from all responsibility, including criminal, the Magistrates who hear a matter in which the Substitute Magistrates, necessary to form the Tribunal, have some ground for recusal or impediment to hear the same matter".

It was ordered that, by virtue of the above and in application of the general principles of Law of the Inalienability of Jurisdiction, the hermetic plenitude of the legal system, and the natural judge, it is appropriate to reject the recusal petition of Magistrate Araya García at this time. It argues that the evident interest in this matter, from his first recusal petition or any other ground, are irrelevant from the moment that, by legal imperative - Article 29, subsection 2), of the Organic Law of the Judicial Branch -, he is obligated to hear this action. It is added that it is not possible to admit that "supervening" grounds could undermine said composition because accepting them, in this particular case, would lead to the extreme of not being able to form a Tribunal and the Chamber not fulfilling the jurisdiction that has been constitutionally assigned to it; consequently, the appropriate course is to declare him enabled to hear this matter, therefore, the petition filed by Magistrate Araya García is rejected, and the continuation of the case file processing is ordered.

22.- By means of a brief filed on February 12, 2019, Fernando Cruz Castro appears to state that, in June 2018, together with other Magistrates, he filed a recusal request in this case file because the reform to the Law of the Judicial Branch Retirement and Pension Regime is being challenged. He states that, although said recusal was accepted, subsequently, by resolution at 10:40 a.m. on June 5, 2018, and at 2:40 p.m. on August 3, 2018, all the Magistrates who had initially filed the recusal were enabled again to hear this action based on the principle of inalienability of jurisdiction. He points out that, notwithstanding the above, since August 2018, he has held the position of President of the Supreme Court of Justice and, therefore, he believes he now has a new reason to request recusal. He argues that, in other proceedings before this Chamber where he has been the respondent party or intervenor in his capacity as President of the Supreme Court of Justice, he has requested recusal because he considers it inappropriate for him to act as a judge in a matter where he has been called as a party in said capacity. He points out that, in this case, the same situation exists because he cannot participate in the vote on this proceeding because, as President of the Court, he will be called to report on the merits of this action since the regulation is related to the Judicial Branch. He argues that, for that reason, he presents this new recusal and forwards the corresponding orders to the Presidency of the Chamber to resolve as appropriate in accordance with the provisions of Article 6 of the Constitutional Jurisdiction Law.

23.- In a document filed on February 13, 2019, substitute Magistrate José Paulino Hernández Gutiérrez appears to state that he recuses himself from hearing this matter because, by resolution at 2:40 p.m. on August 3, 2018, the Presiding Magistrate of the Tribunal ordered him enabled by legal mandate to hear this proceeding. He indicates that at that time he was appointed to a vacant position in the Tribunal; however, since the Legislative Assembly designated a titular Magistrate for the vacant position he was occupying, his appointment ceased and the reason for the enablement disappeared -for a supervening cause-, requesting that the background information of the case be forwarded to the Presidency of the Chamber so it may proceed according to law.

24.- By means of a resolution of the Presidency of the Constitutional Chamber at 9:07 a.m. on February 13, 2019, the recusal request of Magistrate Fernando Cruz Castro is considered because he holds the position of President of the Supreme Court of Justice since August 2018. It states that, in similar cases, the Presidency of the Constitutional Chamber has ordered:

"Given the statements of Magistrate Cruz Castro and seeing that, in his capacity as President of the Superior Council of the Judicial Branch, the authority appealed against in this proceeding, he rendered the report requested in the resolution directing this amparo (amparo) proceeding, the appropriate course is to consider him separated from the knowledge of this matter" (resolution at 8:14 a.m. on October 18, 2018 - case file No. 18-010635-0007-CO-; resolution at 2:39 p.m. on November 13, 2018 - case file No. 18-013211-0007-CO-; resolution at 2:51 p.m. on November 13, 2018 - case file No. 18-013203-0007-CO-; resolution at 2:59 p.m. on November 13, 2018 - case file No. 18-013194-0007-CO-; and resolution at 10:21 a.m. on November 15, 2018 - case file No. 18-008535-0007-CO-).

It is decided that, considering the provisions of the transcribed resolution, the statements of Magistrate Cruz Castro in his condition as President of the Supreme Court of Justice, and as it concerns the same ratio decidendi - that is, the Judicial Branch Retirement and Pension Regime -, the appropriate course is to consider him separated from hearing this matter. Regarding the recusal request filed by substitute Magistrate José Paulino Hernández Gutiérrez, it is indicated that he is correct in that the situation described would result in considering him separated from hearing this matter; however, Magistrate Araya García is already forming the Chamber for this case, which results in the absence of a magistrate to form the Tribunal given the recusal of titular Magistrate Cruz Castro, a substitute magistrate already named in the case file -Marta Esquivel Rodríguez- and the remaining 9 substitute magistrates being recused. It is indicated that the Chamber is constitutionally obligated to resolve the matters submitted for its knowledge, without circumstances such as those now presented - absence of a magistrate to form the Tribunal given the recusal of a titular magistrate, two substitute magistrates already named in the case file and the remaining ten substitute magistrates being recused - undermining that obligation or relieving this Tribunal of its fulfillment. It adds that the Chamber, on previous occasions, has been confronted with similar situations in which, according to what is established in Article 14 of the Constitutional Jurisdiction Law and Article 29, subsection 2) of the Organic Law of the Judicial Branch, it has determined that knowledge of these matters corresponds to the Proprietary Magistrates by legal imperative, without disciplinary responsibility reaching them for this, which constitutes, then, a normative justification cause that releases from all responsibility, including criminal, the Magistrates who hear a matter in which the substitute magistrates, necessary to form the Tribunal, have some ground for recusal or impediment to hear the same matter. Consequently, it is decided that, by virtue of the considerations made and in application, additionally, of the general principles of Law of the inalienability of jurisdiction, the hermetic plenitude of the legal system, and the natural judge, the appropriate course is to reject the petition filed by substitute Magistrate José Paulino Hernández Gutiérrez due to the absence of a magistrate to form the Tribunal, and, by legal imperative, he is considered enabled to hear this proceeding. It concludes that the Tribunal, for hearing this action of unconstitutionality, is composed of Magistrates Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado, Jorge Araya García, and substitute Magistrates José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez, who on that date was part of the Constitutional Chamber by virtue of having been designated, by random draw, to temporarily occupy the position that was vacant in the Tribunal at that time.

25.- Regarding the Action of Unconstitutionality No. 18-007820-0007-CO. In an interlocutory resolution of the Plenary of the Chamber, number 2019-002481 at 9:40 a.m. on February 13, 2019, it was ordered to accumulate the action of unconstitutionality number 18-007820-0007-CO to the one that remained as the main case file number 18-007819-0007-CO, and to treat it as an amplification thereof, due to the evident connection that exists between the objections raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the involved parties.

26.- By means of a brief filed in the Secretariat of the Chamber at 11:35 a.m. on May 22, 2018, Juan Carlos Sebiani Serrano appears in his capacity as President of the National Association of Professionals of the Judicial Branch of Costa Rica, to file an action of unconstitutionality against Articles 224, 224 bis, 227, 236, and 236 bis of Law number 9544. First, and based on the provisions of Article 91 of the Constitutional Jurisdiction Law, he requests that the entry into force of the law challenged in this action be suspended and that it be provisionally ordered that the repealed text remain in force, in order to avoid serious disruptions to justice and social peace, considering that the implementation of the challenged regulation could produce an accelerated exodus of the most competent judicial officials in view that the new law will cause a drastic decrease in the retirement amount and that, in the future, in his opinion, will emotionally affect the judicial collective, which impacts their current quality of life as well as eventually their performance and public service, placing the administration of justice and the social peace of Costa Ricans in a serious situation. He points out that the standing to file this action of unconstitutionality comes from paragraph 2 of Article 75 of the Constitutional Jurisdiction Law, as he acts in defense of the corporate and collective interests of the entity he represents since, according to him, this involves "a rule that directly affects the sphere of action of the entity and its members" given that one of the purposes of the association he represents is the defense of the interests of its members, which consist of the possibility of obtaining a fair and dignified pension upon retiring as Judicial Branch employees. He states that the challenged rules, by abusively restricting the pension regime of judicial employees, seriously harm the interests of its members regarding retirements and pensions, therefore he considers that the entity he represents has standing to bring this action. He begins his reference to the merits of the matter by pointing out as relevant facts: 1) that the retirement pension will be equal to 82% of the last 20 years of ordinary monthly salaries earned in their working life by the employee, provided they have reached 65 years of age and worked at least 35 years (Article 224); 2) from the retirement pension amount, they must contribute 13% to the Judicial Branch Retirement and Pension Fund (Article 236); 3) a maximum deduction amount of 55% is imposed so that the retirement pension or pension remains at 45% of the total gross amount of the retirement pension or pension (second paragraph of Article 236); 4) the maximum amount of the deductions is applied to the amount of the retirement pension or pension and not to the salary amount, which is significantly smaller, and with this, the amount to be received by the judicial employee is smaller; 5) Article 65 of ILO Convention 102 establishes that the amount of the retirement benefit must be based on gross earnings and not on the retirement pension amount, which is not the limit applied in the challenged rule; 6) the additional contribution on the excess over the established ceiling (10 times the base salary of the lowest-paid position in the Judicial Branch) for amounts ranging from 35% to 55% (Article 236 and 236 bis); 7) the final text approved by the Legislative Assembly received 31 votes, when it required at least 38 to be able to depart from the negative opinion issued by the Plenary Court by agreement number XXX of session number 27 of August 7, 2017, as required by Article 167 of the Political Constitution. The claimant raises the unconstitutionality of Articles 224, 224 bis, and 227 of Law No. 9544. He indicates that Article 224 of the challenged law provides the following:

"Article 224.- Judicial employees with twenty or more years of service in the Judicial Branch may take an ordinary retirement pension equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (IPC), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years".

The claimant considers that this article harms the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension relative to the salary they earned is reduced. He adds that the right to a retirement pension constitutes the economic benefit obtained after working and contributing to a specific regime for an established period, the purpose of which is to guarantee a dignified life for the person after they withdraw from the labor market due to age or disability; a right that derives from constitutional article 73 and is acquired from the moment the person meets all the requirements established by current legislation. He emphasizes that the right to a retirement pension is not unrestricted, as it can be subjected to certain limitations provided they are established by formal law, are reasonable, and do not affect its essential content. He points out that the Chamber has maintained that the legislature has the power to establish restrictions on the right to a retirement pension when it can be proven that certain situations exist that endanger the sustainability of a regime and, therefore, harm the nature of the system as such (see judgment number 2379-96). He considers that Articles 224, 224 bis, and 227 of the challenged law are unconstitutional because, after applying the legally established deductions, the pension amount will be less than 55% of the last salary, which constitutes a ruinous figure that also violates the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension relative to the salary they earned is reduced. He argues that the method of calculating the pension and all the deductions applied leave the pension at an amount that constitutes "a ruinous, pauperizing, and undignified reduction, not only for people who serve as judges of the Republic but for all people who work in the Judicial Branch" (see dissenting vote of Magistrate Cruz Castro in judgment 5758-2018). He points out that the right to a fair retirement pension or pension for judges (judicial employees) constitutes part of the human right to social security and the right to a retirement pension. He states that, in this matter, the challenged rules transgress the right to a fair pension because the deductions are excessive, disproportionate, and unreasonable; not even the percentages applied to income tax are as high as the percentages established in the challenged law. He argues that, in that sense, the maximum income limit for companies is 30% and 15% for individuals without lucrative activities; regarding retirees, the State also has limits for its taxation powers; the pension for a retiree is their income and, for that reason, the tax obligations imposed on them must be governed by the principles of reasonableness and proportionality that govern the tax rates set for salaries and earnings. He warns that the fact that a person retires does not authorize the State to impose a quota regarding pensions that exceeds the tax limits for salaried workers and legal entities, such that these percentages - of the challenged law - establish illegitimate inequalities or discrimination because the percentage of this contribution far exceeds the tax on legal entities and individuals. He states that these determinations must take into account the contribution that the judicial official has made throughout their working life, which, on average, is 11% per month on the gross salary. He argues that this lack of adequate weighting of the percentage of contribution paid by judicial workers to eventually obtain their pension right violates the parameters of reasonableness, generality, and proportionality that govern, within a State of Law, the imposition of tax burdens. He argues the unconstitutionality of Articles 236 and 236 bis in relation to Article 224. On this point, he indicates that the change in the parameters to access the right to a retirement pension (contained in Article 224 of the challenged law) combined with the subjection to a special contribution and the percentages applied (contained in Article 236 and 236 bis of the law) constitute a constitutional defect, for violation of the principles of equality, proportionality, and reasonableness. He states that the change in the conditions for retirement substantially decreases the pension percentage to be received by a retiree, but additionally, the pension is subjected to what is called a "special, solidarity, and redistributive contribution." He points out that the drastic decrease in the pension amount violates the principle of equality because only retirees and pensioners of the Judicial Branch are subjected to this solidarity contribution, and not the beneficiaries of other pension regimes; it is a very specific imposition on a particular sector, a vulnerable group in society, such as retirees and pensioners. He considers that the foregoing is discriminatory and violative of Article 33 of the Political Constitution in the terms in which the Chamber defined it in judgment number 2003-005374 when it indicated that "there will be a violation of the general maxim of equality when no reasonable basis resulting from the nature of things or from other adequate causes can be found for a differentiation in the law, or when from the perspective of justice such regulation must be characterized as arbitrary." He states that it is not justifiable that a particularly vulnerable sector of the population, such as retirees and pensioners, be subjected exclusively to that special contribution. He adds that the challenged rules also violate the principle of proportionality and the principle of non-confiscation because the percentages applied for this so-called "special contribution" are clearly disproportionate, given that they range between 35% and 55%, which means the pensioner is left with a maximum right to 55% of their retirement pension or pension right; not even the maximum percentages applied to income tax are as high as those applied to Judicial Branch pensioners. He adds that the challenged rules violate the principle of reasonableness because they constitute, in essence, double taxation since, on one hand, retirees and pensioners must pay 13% of their pension (pursuant to Article 236 of the law), but additionally, on the other hand, they are subject to the payment of "that special contribution" (pursuant to Article 236 bis of the same law) ranging from 35% to 55% on the established ceiling. He indicates that the names given to the contribution do not exempt it from the limits to which it must be subjected, according to the constitutional principle of non-confiscation. He adds the violation of Articles 224, 224 bis, 227, 236, and 236 bis of the constitutional principle of the unity of social security. He recalls that the guiding principles of social security are constructed through the harmonious interpretation of Article 73 of the Political Constitution, Article 25.1 of the Universal Declaration of Human Rights, Article 16 of the American Declaration of the Rights and Duties of Man, and Article 9 subsection 2) of the Protocol of San Salvador and are: universality, solidarity, unity, and equality. He points out that the principle of unity is that which considers the social security system as a whole, so it requires that the system function with congruent and coordinated criteria, grant similar benefits or provisions for the different categories of persons protected under its regime, as well as establish uniform burdens. He argues that this principle emphasizes that there must be consistency in the management of the different entities participating in the administration of the social security system and the benefits granted by them, so that the multiplicity of institutions or subjects subjected to the regime does not violate the principle of equality. He indicates that the foregoing means that multiple institutions may participate in the administration of the social security system, provided the benefits granted by them are similar, that is, equal for all beneficiaries of the social security system considered as a whole. He adds that, likewise, within a specific social security benefit - for example, the retirement and pension regime -, all its contributors must be subject to the same burdens and be beneficiaries of the same benefits; otherwise, it would also violate the principle of equality regarding public burdens deriving from Article 33 of the Political Constitution. He argues that the challenged rules discriminate between workers subject to the social security regime administered by the Costa Rican Social Security Fund and the retirement regime of judicial employees, given that, in that vein, the burdens of Judicial Branch workers far exceed those borne by workers affiliated with the Costa Rican Social Security Fund regime: for example, in the case of the contribution to the Judicial Branch Retirement and Pension Fund, the difference is almost 9 percentage points to the detriment of Judicial Branch workers, despite the fact that both categories have the right to bear the same burdens. He indicates that judicial workers should be subject to the same tax burdens borne by those affiliated with the social security regime administered by the Costa Rican Social Security Fund, in order not to violate the principle of equality that permeates the entire social security system. He argues that, in that sense, it is not possible, therefore, for the burdens of judicial workers to be greater than those borne by those affiliated with the Fund's pension regime, given that both are in the same de facto situation: they are workers obligated to contribute to the social security regime to obtain, at the end of their career, a dignified pension under equal conditions. He argues that, in the case of pension regimes, all its beneficiaries, without any differentiation, must be subject to the same burdens and receive the same benefits in order not to violate the principle of equality that permeates the entire social security system. He points out that, in this matter, the challenged rules grant those who retire under the regime administered by the Fund an advantage over judicial employees, insofar as the latter pay 9 percentage points more in monthly contributions, despite the fact that the pension percentage, in both cases, is around 55% of the last salary earned. He summarizes this point by indicating that the challenged rules, insofar as they set discriminatory contribution rates for Judicial Branch workers compared to those covered under the Fund's pension regime, become unconstitutional for violating the constitutional principle of the unity of social security. He alleges the unconstitutionality of Article 239.

It points out that this provision delegates the possibility of modifying the initial parameters established in the same law regarding the eligibility requirements, the benefit profile, as well as the contributions and dues of judicial employees, and the pensions and retirement benefits provided for in the law, thereby incurring a clear violation of Articles 9 and 28 of the Political Constitution in relation to Article 30 of the American Convention on Human Rights and Article 121, subsection 13 of the Constitution. It recalls that reiterated constitutional case law has considered that the regime of fundamental rights and freedoms is a matter reserved to the law; it argues that for this reason, a subject such as experimentation with human beings, which includes such important and essential rights as life, health, dignity, and privacy of human beings, requires its regulation through a law, not only because it is provided for within the system of freedom guaranteed by Article 28 of the Constitution, but also because it is a material principle that forms part of the democratic regime, a condition that gives it an intrinsically fundamental rank (see rulings 2002-001764 of 14 hours 37 minutes of February 20, 2002, 2008-017305 of 14 hours 58 minutes of November 19, 2008, and 2009-013605 of 14 hours 56 minutes of August 26, 2009). It adds that the principle of legal reserve not only guarantees freedom against other citizens but also constitutes a guarantee of control against public power (Voto 1635-90 of 17 hours of November 14, 1990) which, for example, in the case of clinical experimentation with human beings, demands that its regulation, authorization, limitation, and control come from the legislative chamber, which is the body responsible for protecting or intervening in the fundamental rights of the citizen (Voto 1668-10 of 15 hours 12 minutes of January 27, 2010). It points out that Article 239 of the challenged law grants a deconcentrated body of the Judicial Branch the power to regulate and potentially restrict the fundamental right to a pension and to social security; therefore, these regulatory changes to the pension rights of judicial employees can only be made through a formal law approved by the Legislative Assembly and not through the issuance of administrative acts by a deconcentrated body of the Judicial Branch. It considers that the challenged rule violates not only Article 28 but also Article 9 of the Political Constitution, given that it delegates the exercise of legislative power to a deconcentrated body of the Judicial Branch; the modification of specific aspects of the challenged law is delegated to the Administrative Board of the Pension Fund (Junta Administradora del Fondo de Pensiones). It adds that the challenged rule also violates numeral 30 of the American Convention on Human Rights, which demands that restrictions on fundamental rights may only be carried out by a formal law approved by a parliamentary body: in the present case, the Administrative Board is authorized to modify the initial parameters of the law, which implies an evident restriction on the pension rights of judicial employees. It adds that Article 121, subsection 13 of the Constitution is also violated because this rule authorizes an administrative body to modify the rate of a tax, as the contribution of employees to a pension regime is legally considered, which is exclusive to formal law according to the cited constitutional rule. It argues a violation of Article 167 of the Political Constitution. In this regard, it points out that the final text approved by the Assembly received only 31 votes when it required 38 to be able to depart from the negative opinion issued by the Full Court (Corte Plena) through agreement number XXX of session number 27 of August 7, 2017, when answering the respective consultation formulated by the legislative body. It states that the challenged law, having not obtained a qualified vote, violates the second paragraph of Article 167 of the Political Constitution. It ends by requesting that the judgment declare that Articles 224, 224 bis, 227, 236, and 236 bis of Law No. 9544 are unconstitutional for being contrary to the constitutional principles and rules cited in this action.

27.- The proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the substitute magistrate José Paulino Hernández Gutiérrez and the substitute Magistrate Marta Esquivel Rodríguez, file a recusal (inhibitoria) considering that they have a direct interest in the outcome of this unconstitutionality action (in terms equal to how they did so in the principal file 18-007819-0007-CO).

28.- In a resolution of the Presidency of the Constitutional Chamber (Sala Constitucional) of 10 hours 50 minutes of June 5, 2018, the proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and substitutes Hernández Gutiérrez and Esquivel Rodríguez were separated from hearing this matter, ordering that the pertinent communication be sent to the Presidency of the Supreme Court of Justice (Corte Suprema de Justicia) so that their substitution may proceed according to Article 6 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional).

29.- By means of an official letter added to the electronic file, the Presidency of the Supreme Court of Justice sent the result of drawing #6160 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez, for having recused themselves from hearing this unconstitutionality action. It is reported that the selected substitute Magistrates are: Mauricio Chacón Jiménez, Anamari Garro Vargas, Ileana Sánchez Navarro, Jorge Araya García, Rónald Salazar Murillo, Alejandro Delgado Faith, and Hubert Fernández Argüello.

30.- On June 12 and 14, 2018, substitute Magistrates Alejandro Delgado Faith and Mauricio Chacón Jiménez filed a recusal (inhibitoria) in this file under the same terms that they did in the principal file 18-007819-0007-CO.

31.- In a resolution of 8 hours 40 minutes of June 14, 2018, the Presidency of the Constitutional Chamber ordered the separation of substitute Magistrates Mauricio Chacón Jiménez and Alejandro Delgado Faith from the matter, as well as communicating the pertinent information to the Presidency of the Supreme Court of Justice so that their substitution may proceed, as provided in Article 6 of the Law of Constitutional Jurisdiction.

32.- On June 15, 19, 21, and 28, 2018, substitute Magistrates Hubert Fernández Argüello, Anamari Garro Vargas, Ileana Sánchez, and Rónald Salazar Murillo, respectively, filed a request for recusal (inhibitoria) to hear this unconstitutionality action under the same terms that they did in principal file number 18-007819-0007-CO.

33.- The Presidency of the Constitutional Chamber, in a resolution of 10 hours 32 minutes of June 28, 2018, ordered the separation of the previous 4 substitute Magistrates from hearing this proceeding and ordered that the pertinent communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed, as provided in Article 6 of the Law of Constitutional Jurisdiction.

34.- By means of an official letter added to the electronic file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of drawing #6232 carried out for the substitution of Magistrates Anamari Garro Vargas, Rónald Salazar Murillo, Hubert Fernández Argüello, and Ileana Sánchez Navarro, stating that because the Chamber originally requested 4 substitutes and there are only 3 available, the drawing was conducted with the available substitutes, selecting Ana María Picado Brenes, Alicia María Salas Torres, and María Lucila Monge Pizarro.

35.- On July 4, 2018, substitute Magistrates Alicia Salas Torres, Lucila Monge Pizarro, and Ana María Picado Brenes filed a request for recusal (inhibitoria) in terms similar to those they raised in the original file 18-007819-0007-CO.

36.- The Presidency of the Constitutional Chamber, in a resolution of 13 hours 02 minutes of July 4, 2018, ordered them separated from hearing this proceeding.

37.- By means of a resolution of the Presidency of the Constitutional Chamber of 13 hours 48 minutes of July 4, 2018, and based on what was resolved by the President of the Constitutional Chamber – Magistrate Castillo Víquez – at 14 hours 40 minutes of August 3, 2018, issued in principal file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, and José Paulino Hernández Gutiérrez were declared enabled to hear this unconstitutionality action, and it was ordered to continue with the processing of the file.

38.- Magistrate Fernando Cruz Castro appears by means of a brief filed on February 12, 2019, to state that in this file and in all others that have been accumulated to principal file number 18-007819-0007-CO, he filed, together with other Magistrates, a request for recusal (inhibitoria) because the reform to the Law of the Retirement and Pension Regime of the Judicial Branch (Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial) is being challenged. He argues that although said recusal was initially accepted, subsequently, all Magistrates were enabled based on the principle of non-waivability of competences. He argues that since August 2018, he has held the position of President of the Supreme Court of Justice and therefore considers that he has a new reason to request the recusal. He adds that, in other proceedings before this Chamber where he has been a respondent or intervening party in his capacity as President of the Supreme Court of Justice, he has requested the recusal because he has considered it improper to act as a judge in a matter where he has been called as a party in that capacity, estimating that, in the files mentioned supra, the same situation exists because he cannot participate in the voting on those actions since, as President of the Court, he will be called to report on the merits because the regulation is related to the Judicial Branch. He argues that, for this reason, he files this recusal (inhibitoria) and requests that the record be sent to the Presidency of the Constitutional Chamber so that it may resolve what is appropriate in accordance with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

39.- By means of a resolution of 12 hours 44 minutes of February 12, 2019, the President of the Constitutional Chamber – Magistrate Fernando Castillo – and based on the resolution of 14 hours 40 minutes of August 3, 2018, issued in principal file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was separated from hearing this matter and substitute Magistrate Marta Eugenia Esquivel Rodríguez was declared enabled to hear it, ordering the processing of the file to continue.

40.- On February 13, 2019, substitute Magistrate José Paulino Hernández Gutiérrez appears to state that he is separating from hearing this matter because the Legislative Assembly has designated the proprietary Magistrate for the position in which he was working and, therefore, upon the cessation of his appointment, the supervening cause for which he had been enabled in the resolution of 13 hours 48 minutes of July 4, 2018, has disappeared. He requests that the case background be passed to the Presidency of the Chamber so that it may proceed according to Law.

41.- The Presidency of the Constitutional Chamber, in a resolution of 8 hours 04 minutes of February 13, 2019, and based on the considerations expressed in the principal file in the resolution of 14 hours 40 minutes of August 3, 2018, ordered the rejection of the petition raised by substitute Magistrate José Paulino Hernández Gutiérrez, declares him enabled to hear the matter, and orders the processing of the file to continue.

42.- Regarding Unconstitutionality Action No. 18-008202-0007-CO. In an interlocutory resolution of the Full Chamber (Pleno de la Sala) number 2019-002483 of 10 hours of February 13, 2019, it was ordered to accumulate unconstitutionality action number 18-008202-0007-CO to the one that remained as principal file number 18-007819-0007-CO, and to consider it as an amplification of the latter, due to the evident connection that exists between the objections raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the involved parties.

43.- By means of a brief filed in the Secretariat of the Chamber at 10 hours 45 minutes of May 29, 2018, Hernán Campos Vargas, of legal age, married, judicial retiree, with identification number 1-519-160, resident of Coronado, in his capacity as General Secretary of the Union of Workers of the Judicial Branch (Sindicato de Trabajadores y Trabajadoras del Poder Judicial, SITRAJUD), and Yesenia Paniagua Gómez, of legal age, single, judicial employee, bearer of identification number 1-845-494, resident of Zapote, in her capacity as President of the Association of Psychology Professionals of the Judicial Branch (Asociación de Profesionales en Psicología del Poder Judicial, APSIPJUD), appear to file an unconstitutionality action against Law 9544 published in La Gaceta No. 89 of May 22, 2018. They consider that this law is contrary to constitutional, supra-constitutional, or conventional norms and principles, given that a series of violations of legislative due process occurred during its formation process, referring to the procedures or proceedings in the formation of the law established both in the Political Constitution and in the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa) in its Articles 116, 117, 121, 126, as well as the procedure established by the Legislative Plenary for processing the project via 208 bis; both regulations are considered interna corporis and delimiting of legislative due process, which is a parameter of constitutionality according to what is indicated in Article 73, subsection c) of the Law of Constitutional Jurisdiction, also contravening the provisions of Articles 9, 105, 119, 152, 153, 154, and 167 of the Political Constitution. They also consider that the following principles are violated: Democracy, Publicity, Reasonableness and Proportionality, Prohibition of Arbitrariness, Due Process, and Legal Certainty. They request that, in accordance with the provisions of Article 81 of the Law of Constitutional Jurisdiction, the effectiveness of the challenged law in this action be suspended, because, upon the entry into force of Law 9544 questioned here, it could generate the immediate departure of specialized personnel in the different areas that make up the Judicial Branch, which could compromise the proper development of the administration of justice, disrupting other fundamental rights such as prompt and complete justice, to the detriment of Costa Rican social peace. They add that the entry into force of the questioned law also implies a 2% increase in the deduction from their salaries, retirement benefits, and pensions, to raise the worker contribution to the pension fund from 11% to 13%, which, without a provision or through a staggered increase, endangers the economic stability of the people who work in the Judicial Branch, or of those who are retired and receiving pensions (one must remember the difficulty for the Government in increasing the worker contribution to the IVM fund by 1%). They request that, with the intention of avoiding unnecessary harm, on a precautionary basis, the application of the regulation that the questioned law repeals be maintained and, thereby, while this action is resolved, people with the right to retire or receive a pension not be affected. Regarding the standing (legitimación) of their represented entities, they affirm that the Chamber has been reiterative in the fact that entities representing trade union or corporate interests have standing to directly file unconstitutionality actions, which is also contemplated in Article 75, second paragraph, of the Law of Constitutional Jurisdiction as long as they act in defense of the corporate and collective interests of their members or associates. They point out that the phrase contained in that numeral which provides "interests that concern the community as a whole," refers to the standing they hold regarding the corporate groups they represent, in his capacity as General Secretary of the Union for the first, and as President of the Association for the second, acting in defense of the rights and interests of the people who form the associative base of both entities, and this action is of capital importance for the purpose of protecting the specific rights and interests of the community that they represent due to the serious consequences of approving a law that infringes aspects of form and substance, contravening the Law of the Constitution, directly harming all members in their trade union, professional, labor, and personal interests. They add that the challenged unconstitutional law - in its entirety - decreases in an abusive and aggressive manner the pension regime of the people who work in the Judicial Branch, thereby seriously harming their associates' interests in pension matters. Account of facts for which they consider that the challenged Law No. 9544 is unconstitutional: they begin their analysis by stating that the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial, LOPJ) No. 7333 of May 5, 1993, established in its Articles 81, subsections 12, 13, 14, and 15 - repealed by Law 9544 – and 235, that the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) was the body responsible for administering the Retirement and Pension Fund of the Judicial Branch - Articles 67 and 81, subsection 16 and, in its Article 59, subsections 21 and 22, it provided that it corresponds to the Full Court (Corte Plena) to issue guidelines on the scope of rules in pursuit of prompt and complete justice, as well as to exercise the functions that the Constitution grants it. They state that in Full Court session No. 026 of August 7, 2017, article XXX, that collegial body determined that the aspects related to the Retirement and Pension Fund of the Judicial Branch, known in legislative file No. 19.922, did affect the functioning and organization of the Judicial Branch. They state that the text of Law 9544 in its Chapter IV, starting with Article 239, creates a new body within the Judicial Branch, with a composition different from that of the Superior Council, granting new functions and obligations to the Judicial Branch and eliminating functions from that Council; changes that have to do with the organization and functioning of this Branch of the Republic. They point out that Article 167 of the Constitution establishes the mandatory nature of consulting the bills of law that refer to the organization or functioning of the Judicial Branch and indicate that, in case the consultation receives a negative response from the Judicial Branch, the Legislative Branch is obligated, in order to depart from said criterion, to have a vote of at least two-thirds of the 57 deputies, this in relation to Article 119 of the Constitution. They state that the Reviewing Commission (Comisión Dictaminadora) heard and approved a substitute text within the legislative file indicated above, on September 13, 2016; a text that was never published, contravening the provisions of Articles 116, 117, and 121 of the Regulations of the Legislative Assembly, as well as the procedure agreed upon by the Plenary to process project 19.922 via 208 bis. They add that the Legislative Branch complied with the constitutional obligation to conduct the consultation with the Judicial Branch in relation to the project reviewed by the Special Commission on July 27, 2017, and the response to that consultation was negative, and therefore, this obligated that the subsequent votes be held with at least two-thirds of the votes of the 57 Deputies of the Legislative Assembly. They note that the vote in the first debate of the project did not reach the total of two-thirds of the Deputies, and furthermore, the project voted in the first debate contained changes regarding the project reviewed by the Commission and which was the last one consulted to the Full Court on July 27, 2017; therefore, that voted project turns out to be a substitute text introduced via motion and that was not duly consulted to the Full Court, thereby contravening the provisions of Article 167 of the Constitution. They state that this unconsulted project, after being voted on in the first debate on October 30, 2017, was published in Supplement (Alcance) 268 to Digital Gazette (Gaceta Digital) No. 212 only on November 9, 2017, contravening the democratic principle and the principle of publicity. They argue that on November 1, 2017, before this unconsulted voted project was published, an optional consultation of constitutionality was raised by a group of Legislators regarding the project that derived into Law 9544. They add that, in the second debate of file number 19.922 where Law 9544 was finally approved, the Legislative Plenary again failed to comply with the requirement of a vote equal to or greater than two-thirds of all Deputies. The plaintiffs raise the following as arguments of unconstitutionality: 1) The criterion of the Attorney General's Office (Procuraduría General de la República), Legal Opinion OJ-054-2007 of June 21, 2007, must be taken into account regarding the non-publication of a bill of law that, as in the specific case, is related to the organization or functioning of the Judicial Branch, considering that this causes a substantial violation. They indicate that, on this matter, that Legal Opinion analyzed parliamentary nullities and their consequences when not finding express regulation in the Regulations of the Legislative Assembly and, making use of what is indicated in Article 73, subsection c) of the Law of Constitutional Jurisdiction, regarding what is relevant, it stated:

"(…) the Parliamentary Statute presents a normative vacuum, as it does not regulate the procedure nor the assumptions for declaring the nullity of parliamentary actions.

Now then, we have that the defect may reside in the final parliamentary act, constituting an invalidating substantive defect, which can be challenged through the constitutional processes for the defense of the Constitution (…). The other assumption, the object of the consultation, is when the defect is found in the parliamentary actions and omissions referring to parliamentary procedures, which, indeed, has certain characteristics (when it involves the violation of a substantial requirement or procedure provided for in the Constitution or, in its case, established in the Regulations of the Legislative Assembly, Article 73, subsection c of the Constitutional Jurisdiction Law), would invalidate the final parliamentary act" (underlining and bold are from the original).

They consider that in this Legal Opinion, it is clear that, in case of substantial violations of the procedure, the final parliamentary act is invalid from the perspective of the Law of the Constitution. They indicate that, in the process of forming Law 9544, legislative due process was infringed from a substantial point of view and, therefore, in their opinion, the law is unconstitutional, requesting that it be declared so (see ruling No. 3220-00 of 10 hours 30 minutes of April 18, 2000). 2) Elimination of functions from the Superior Council and Failure to Comply with the provisions of Article 167 of the Political Constitution. They argue that the Organic Law of the Judicial Branch established in its Articles 81, subsections 12, 13, 14, and 15 (repealed by Law 9544) and 235 that, before the reform established in Law 9544, the Superior Council of the Judicial Branch was the body responsible for administering the Retirement and Pension Fund, this under the understanding that this Council is a body of the Full Court according to the provisions of numeral 67 and 81, subsection 16) which is responsible for "administering" the Judicial Branch. They indicate that, by repealing the articles that established the power of administrator of the Retirement and Pension Fund of the Judicial Branch, this is evidently a variation to the "organization and functioning" of this Branch of the Republic. They consider that this elimination of functions from the Superior Council of the Judicial Branch generates by itself the mandatory nature of conducting the consultation established in Article 167 of the Political Constitution, with the consequences in case of a negative response to the indicated consultation. 3) Creation of a new body within the Judicial Branch. They argue that in Law 9544, which they challenge as unconstitutional due to serious non-compliance with procedural aspects in the iter of parliamentary procedure in its approval, Article 239 creates a new and different entity to administer the pension and retirement fund in the Judicial Branch; an entity that is very different from the system that had been operating before that reform. They argue that this new "body" is created within the Judicial Branch, but indicating that it has absolute functional, technical, and administrative independence, but the law does not state or determine that it will have any type of deconcentration, neither minimum nor maximum. They add that, despite the foregoing, as determined by Article 83 of the General Law of Public Administration (Ley General de la Administración Pública), this new body will be fully subordinate to the Full Court, and therefore, it turns out to be responsible for the activity deployed by this new "body," just as indicated by Articles 191 and following of the General Law of Public Administration. They argue that thus there will exist a body with absolute independence within the Judicial Branch that, in case of any lawful or unlawful conduct generating damages to third parties, will generate the joint and several, strict liability of the Judicial Branch and, therefore, they ask whether this will not be considered a reform that affects the organization or functioning of the Judicial Branch? They add that, by creating a body within the Judicial Branch responsible for administering the fund with complete functional, technical, and administrative independence, the possibility of intervention by the Court is left to a minimum, becoming almost nonexistent, so that the subsidiary and strict liability of the Court is maintained but without the possibility of the Full Court exercising control, which is very different from what operated in the case of the Superior Council, hence this administrative variation should have been mandatorily consulted, as they indicate they have been maintaining. They indicate that this rule grants a series of powers to this new body of the Judicial Branch, such as administering the retirement and pension fund, conducting actuarial studies, issuing rules for the administration of its personnel, as well as hearing retirement applications, this among other powers established in Article 239 cited, but importantly and related to the Judicial Branch's liability, this body will be in charge of determining investments (Article 240 bis, Law 9544). They recall that in the case of the Superior Council, it administered the fund but without the independence that Law 9544 grants to the new Administrative Board (Junta Administradora). They note that, until now, there is a new body within the Judicial Branch created by this Law with new powers within this Branch of the Republic and it creates greater responsibilities for the Judicial Branch. 4) Composition of the new Administrative Board. They state that, added to the previously mentioned points, Article 240 of Law 9544 establishes that this new Administrative Board of the Retirement and Pension Fund of the Judicial Branch will be composed of 3 members elected by the judicial collective and 3 members appointed by the Full Court, with which, in addition to the creation of the new body, granting it novel powers as well as new and greater responsibilities to the Judicial Branch (all in modification and affectation of the organization and functioning), the new law also comes to impose new functions on both the judicial collective and the Supreme Court of Justice itself, thus varying the organization and functioning of the Judicial Branch because now the Full Court is responsible for determining which persons (3) will represent the "employer" in this newly created legal entity, which they consider a clear and sufficient reason to generate the obligation to have consulted the project, as well as to abide by and comply with the requirements that a negative ruling like the one issued by the Supreme Court of Justice produces. They consider that to clarify the situation as best as possible, it must be seen that this is the functioning and organization of the Judicial Branch. 5) What should be understood as functioning and organization of the Judicial Branch?. They indicate that, to understand what should be understood by organization and functioning of the Judicial Branch, one must start from the analysis of the agreement of the Full Court adopted in Session 9-17 of April 24, 2017, article XXIX that referred to bill of law number 19.922 which culminated with the law vitiated by unconstitutionality No.

9544, in which the Full Court concluded that the legislative bill under consultation does affect the organization and functioning of the Judicial Branch, in accordance with the provisions of Article 167 of the Political Constitution. They add that, in the agreement reached in session No. 27 of August 7, 2017, article XXX, upon addressing the consultation of the Legislative Assembly regarding the Affirmative Majority Opinion concerning the reform of the Judicial Branch Retirement and Pension Fund as amended by Law 9544, the Full Court determined, in relevant part, that:

"It is considered that it has to do with the structure and functioning of the Judicial Branch (...) based on the powers that Articles 167 of the Political Constitution and 59, subsection 1) of the Organic Law of the Judicial Branch confer, it is estimated that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Legislative Assembly must take into account what the Full Court has stated in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from this binding opinion.

This has been communicated to that Legislative Branch in other consulted law projects, such as those seen in Full Court sessions numbers 57-14 of December 8, 2014, article XVIII; 13-15 of March 23, 2015, article XXXVII; 2-16 of January 18, 2016, article XVIII; and 14-17 of May 30, 2017, article XIX, among others, in which the Full Court has deemed it necessary to note the impact of the Law projects on the internal structure of the Judicial Branch.

Corollary, regarding the bill processed under file No. 19922, a negative criterion must be issued because it affects the structure, organization, and functioning of the Judicial Branch (...) It was agreed: 1.) To acknowledge the presentation made by the Legal Director. 2.) To accept the report on the consulted bill and make it known to the Legislative Plenary and the Special Commission Charged with Examining and Issuing an Opinion on the Bill called: "Law for the Comprehensive Reform of the Various Pension Regimes and Related Regulations, Legislative File No. 19.922," hereinafter referred to as: Reform of Title IX of the Organic Law of the Judicial Branch, on Judicial Retirements and Pensions of the Legislative Assembly, in response to the consultation formulated, with the express indication that this Court issues a negative criterion and opposes the consulted bill, because it affects the organization, structure, and functioning of the Judicial Branch. 3.) To acknowledge the statements made by Justices Rojas, Arias, and Justice Gamboa" (the bold text is from the brief).

They argue that, by virtue of the exercise of independence enshrined in Article 9 of the Political Constitution, the Full Court issues an agreement determining that, effectively, the issue of pensions related to legislative file number 19.922, and consequently Law 9455, does affect the organization and functioning of this Branch of the Republic. They recall that Articles 152 and 153 of the Political Constitution establish that the Judicial Branch is exercised by the Full Court and that it is responsible for resolving matters within its jurisdiction in an absolute manner, but, more clearly, Article 59 of the Organic Law of the Judicial Branch expands that explanation, indicating in subsection 1) that among its functions is the duty to inform the other Branches of the State on which matters it must be consulted. They argue that the preceding regulation, as a parameter of constitutionality, arises from Article 167 of the Constitution, given that the Full Court issued not only a negative opinion on the bill, but also stated that the content of Law 9544 should have been mandatorily consulted, as in Session No. 27, of August 7, 2017, Article XXX, where it indicated, as stated:

"It is considered that it has to do with the structure and functioning of the Judicial Branch (...)".

They add that the foregoing is amplified by the content of Article 59, subsections 21) and 22) of the Organic Law of the Judicial Branch: according to subsection 21), it must issue directives on the scope of the norm in pursuit of the principle of prompt and complete justice, clearly applicable to all administrative legislation on pensions and retirements in the Judicial Branch, but, additionally, according to subsection 22), it is a constitutional mandate. They state that, based on the foregoing, the Full Court, in use of its self-regulatory powers, has already determined that matters pertaining to pensions and retirements of the Judicial Branch do have to do with the structure and functioning of the Judicial Branch, and therefore any reform bill is subject to mandatory consultation (highlights are from the brief). They state that, given the position of the Judicial Government exercised by the Full Court independently from other Branches, the resolutions of the Constitutional Chamber are of interest, which, in their view, can help further substantiate the argument they defend regarding the obligatory nature of the consultation established in Article 167 of the Constitution. They recall that in judgment No. 2008-005179 at 11:00 a.m. on April 4, 2008, the Chamber pointed out that:

"The majority of this Constitutional Chamber estimates that a bill concerns such extremes when it contains in its articles explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or else creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions. It must be taken into consideration that the constitutional norm under discussion harmonizes two aspects of a fundamental nature: on the one hand, the independence of the Judicial Branch, and on the other, the exercise of the legislator's freedom of configuration or conformation, which has no other limit than the Law of the Constitution" (highlights from the brief).

Based on the cited ruling, they consider it is seen with crystal clarity that the creation, variation, or suppression (highlights from the original) of an administrative body attached to the Judicial Branch is directly related to the organization and/or functioning of this Branch. They therefore estimate that the provisions of Articles 239 and 240 of Law 9544, by creating a body of the Judicial Branch (Administrative Board of the Judicial Branch Retirement and Pension Fund) and eliminating functions of another (Superior Council of the Judicial Branch), produced a modification in the structure of the Judicial Branch, in its organization and administration, thus requiring consultation as established by Article 167 of the Constitution. They add that, on this matter, there is another resolution in which the Chamber explained and clarified how aspects of a purely administrative type, and not only jurisdictional ones, have a direct relationship with the organization and functioning of this independent Branch of the Republic (highlights from the original), according to judgment No. 2001-13273 at 11:44 a.m. on December 21, 2001, in which, when addressing a legislative consultation of constitutionality on a bill to reform the Penal Code as it modifies aspects related to the organization or functioning—purely administrative—of the Judicial Archives, it held unanimously as follows:

"In the same way, they modify the scope of functions of the Judicial Archives, increasing the amount of data it must register. All of the foregoing implies, without a doubt, the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Legislative Assembly omitted to make the respective consultation to the Supreme Court of Justice (at least, it does not appear in the certified copy of the file sent by the President of the Directorio), without those aspects having previously been included in the texts consulted to the Supreme Court of Justice, for which reason the Chamber estimates that a violation was incurred of the duty imposed in Article 167 of the Political Constitution regarding the judicial independence recognized by the constituent power to the Judicial Branch, and in that sense it must be understood that the procedure followed prior to the approval of the amended opinion is null from the constitutional point of view and must be declared as such" (the highlighting is from the original).

They indicate that this judgment has several important points that must be mentioned in relation to aspects of an administrative type within the Judicial Branch (not exclusively jurisdictional), and that do have a direct relationship with its organization and functioning. They point out that the reform dealt with a modification in the scope of functions of the Judicial Archives, as it sought an increase in the amount of data that it had to register (do not forget that information is also recorded for persons who have not had criminal cases and who use that information—criminal record—for employment purposes, for example), which has nothing to do with jurisdictional activity, strictly speaking. They argue that, in this way, it is clear and evident that the creation of an internal body of the Judicial Branch, as is the case of the Administrative Board of the Retirement and Pension Fund, but that, additionally and simultaneously, eliminates powers from another body of great importance in the Judicial Branch, such as the Superior Council, has an absolute and direct relationship with the organization and functioning of the Judicial Branch. They consider that resolving otherwise puts in question the independence established in Articles 9, 10, 153, 154, and 156 of the Political Constitution. They point out that, for these reasons, Law 9544 presents an irremediable defect in the legislative procedure followed and, consequently, a breach of the provisions of Article 126 of the Assembly’s Rules of Procedure and evidently of Article 167 of the Political Constitution, for failing to consult the Judicial Branch on the bill that was voted on in the first debate, thus converting it into an unconstitutionally unconsulted text (underlined in the original). They insist that the substitute text of the bill finally approved by the Special Commission in the session of July 27, 2017, was indeed consulted to the Supreme Court of Justice; however, that text was not the one that was ultimately approved in the first debate, but rather a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch. They state that the Chamber, in other judgments and responding to different realities or contexts, has resolved aspects related to the mandatory consultation established in Article 167 of the Political Constitution, so the reason and purpose of each consultation must be clear to avoid falling into erroneous interpretations. They reiterate that, in judgment 2008-005179 at 11:00 a.m. on April 4, 2008, cited above, the majority of the Chamber:

"(...) estimates that a bill concerns such extremes when it contains in its articles explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or else creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions (...)".

and further states that a differentiation is made there between strictly jurisdictional bodies and those of an administrative nature, given that, in this case, materially administrative functions are created or eliminated (as in the case presented in this action of unconstitutionality), such as the administration of the fund, the new rules, and the new body created, as well as new responsibilities of the Judicial Branch (in addition to the elimination of the previous functions of the Superior Council). Likewise, they recall judgment number 2001-013273 at 11:44 a.m. on December 21, 2001, also cited above, in which it was stated that:

"In the same way, they modify the scope of functions of the Judicial Archives, increasing the amount of data it must register. All of the foregoing implies, without a doubt, the variation of various rules concerning the functioning and organization of the Judicial Branch (...)".

They argue that, in that specific judgment, it was analyzed that the function of the Judicial Archives cannot be considered as proper to the Judicature, but rather as an auxiliary body and, therefore, it is an eminently administrative body. They point out that the Organic Law of the Judicial Branch establishes in Article 81, subsection 12)—now repealed by Law 9544—that the Superior Council will be the body responsible for the administration of the retirement and pension fund. What difference exists, then, between the administrative activity (from the perspective of administrative law) carried out by the Superior Council as administrator of the pension fund, and that of the Judicial Archives (with the Superior Council being its superior) as administrator of administrative information used both in judicial processes and in the administrative sphere—such as naturalizations, insurance policies, incorporation into Professional Associations, or purely international matters concerning the owners of the information contained in that database, which must be subject to the administrative legislation on Personal Data Protection, Law No. 8968 and its regulations? They consider there is no difference, and for this reason, they estimate that, in the case of the reform to the Retirement and Pension Fund imposed by Law 9544, the bill voted on in the first debate should have been consulted, especially when introducing more aggressive variations than the example used from Ruling 2001-013273 at 11:44 a.m. on December 21, 2001. This is because Law 9544 eliminates legal powers granted to the Superior Council in the Organic Law of the Judicial Branch, but also creates ex novo new functions, new bodies, and new obligations for the Full Court, all of which modifies the organization and functioning of the Judicial Branch. They maintain that, in the resolutions analyzed and cited in Ruling 2018-005758, the need to carry out that mandatory consultation is supported; therefore, they affirm that it cannot be maintained that when the content and obligations generated from Article 167 of the Constitution refer to the organization and functioning of the Judicial Branch, it refers exclusively and solely to the affectation of the jurisdictional function and not the administrative function. They point out that there are other judgments mentioned in number 2018-005758 at 3:40 p.m. on April 12, 2018, which are important to take into account. For example, number 1998-005958 at 2:54 p.m. on August 19, 1998, in which the Chamber analyzed the term "functioning"—without developing the content of the term "organization"—and which, in their view, is indispensable for the questions of unconstitutionality they are raising:

"(...) the matters that preemptively require a consultation to the Supreme Court of Justice are those that refer 'to the organization or functioning of the Judicial Branch,' where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural issues that govern the substantiation of the various matters submitted to those courts" (highlights are from the original).

They warn that, as indicated by the Chamber in that judgment, the matters that must obligatorily be consulted are those referring to organization and functioning, which is extracted from Article 167 of the Constitution, and it immediately proceeds to analyze the term "functioning," setting aside the analysis of what should be understood by "organization." This analysis is indeed conducted in judgments 2008-005179 and 2001-13273, because—in this specific case—it was not necessary, fundamentally because the mandatory legislative consultation of constitutionality on the bill for the "Addition of a new Chapter IV, called 'On the Habeas Data Remedy' to Title III of the Law of Constitutional Jurisdiction," legislative file number 12,827, referred to a specific affectation of the jurisdictional function of the Judicial Branch, not the strictly administrative function as is the case with Law 9544 (highlights from the original). They argue that another Ruling is number 2001-013273, mentioned in judgment number 2018-005758, according to which:

"(...) the matters that preemptively require a consultation to the Supreme Court of Justice are those that refer 'to the organization or functioning of the Judicial Branch,' where the term 'functioning' alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural issues that govern the substantiation of the various matters submitted to those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Law of Constitutional Jurisdiction integrate this Chamber within the structure of the Court" (highlights from the original).

They indicate that there, once again, the aspect of "organization" is left unanalyzed, as it was unnecessary in that specific case. Therefore, the Law of the Constitution should not be interpreted restrictively to the detriment of the "organization" of the Judicial Branch, because, as indicated in Ruling 2008-005179, any undue interference in those aspects must be avoided, and this is achieved through the procedure established in Article 167:

"It must be taken into consideration that the constitutional norm under discussion harmonizes two aspects of a fundamental nature: on the one hand, the independence of the Judicial Branch, and on the other, the exercise of the legislator's freedom of configuration or conformation, which has no other limit than the Law of the Constitution." They add that there are 2 Rulings that merit mention: number 1995-003063 at 3:30 p.m. on June 13, 1995, and number 2002-004258 at 9:40 a.m. on May 10, 2002, which, because they deal with the topic of the Judicial Branch Pension and Retirement Fund, could lend themselves to misinterpretation. They add that judgment No. 1995-003063 resolved an action of unconstitutionality against the Framework Law on Pensions No. 7302 of July 8, 1992, and, in that case, the Constitutional Chamber, resorting to what was indicated in Ruling 846-92 at 1:30 p.m. on March 27, 1992, determined that there was no constitutional obligation to consult the Judicial Branch on the bill because it did not affect judicial employees, and therefore, it does not fall within the provisions of Article 167 of the Political Constitution. They argue that in that Ruling, the impropriety of the action in that specific case is determined, but based on the fact that it does not affect judicial employees, and not because it deals with a matter related to pensions of the Judicial Branch. They state that, moreover, if one makes an interpretation pro homine and pro libertate, conversely—like Law 9544—if it had affected judicial employees, it would have affected the functioning (not the organization, which is again left unanalyzed), and therefore, there would have been a need for that mandatory consultation, as is the case in this action, where they consider that the persons working in the Judicial Branch are clearly seriously affected. Additionally, they estimate there is another matter, that of labor aspects, which require the obligatory consultation, because Article 156 of the Constitution establishes that the Full Court is the Superior of all officials and employees in the judicial branch. On the other hand, regarding judgment No. 2002-004258 at 9:40 a.m. on May 10, 2002, they indicate that the Chamber heard accumulated actions of unconstitutionality filed against Article 4 of Law No. 7605 of May 2, 1996, as it reforms Articles 224, 226, and 236, subsections 1) and 2) of the Organic Law of the Judicial Branch No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a) of the Disability, Old Age, and Death Regulations of the Costa Rican Social Security Fund. They state that, there, the Constitutional Chamber dismissed, among other alleged issues, the violation of Article 167 of the Political Constitution, on the grounds that the reform to the pension regime of judicial employees being challenged had no relationship with the organization or functioning of the Judicial Branch, for whose definition it referenced what was said in judgment No. 1995-003063 at 3:30 p.m. on June 13, 1995. They add that this jurisprudential basis—judgment No. 1995-003063—in judgment number 2002-004258, only refers to the term 'functioning' of the Judicial Branch but not to the issue of its organization, which has been better defined in judgment number 2001-13273 in the Judicial Archives case, where the consultation established in Article 167 of the Constitution was considered necessary. They estimate that, based on Rulings 2008-005179 and 2001-13273, it can be deduced that strictly administrative aspects do have a bearing on the organization and functioning of the Judicial Branch, and, therefore, the bill that concluded with Law 9544 should have been consulted to the Full Court, in compliance with the provisions of Article 167 of the Constitution. They point out that, regarding the other resolutions, it cannot be extracted from them that the matter of retirements and pensions of the Judicial Branch must be excluded from the obligatory nature of the indicated consultation. Furthermore, the case is not identical, because in the action under review, there was indeed a modification to the organization and functioning of the Judicial Branch, by eliminating powers from the Superior Council and, at the same time, creating a body attached to the Judicial Branch. They recall that the Full Court already indicated that this issue did generate the need for consultation because it relates to the organization and functioning of the Judicial Branch. They point out that the functional independence of the Judicial Branch, recognized in Article 9 and reinforced in Article 154, both of the Political Constitution, intrinsically entails—according to Administrative Law as well as from the perspective of the Law of the Constitution—the power of the Judicial Branch, represented by the Full Court, to grant itself its own organization, which is being affected by the imposition—creation—of a new body called the Pension and Retirement Fund Administrative Board, but also by eliminating powers from another body—the Superior Council—and granting new responsibilities, all without having granted the respective hearing—in the case of the bill voted on in the first and second debate—and subsequent observance of the provisions of Article 167 of the Constitution, as the Full Court had issued a negative opinion (on the bill approved by the Commission, which required a vote of at least two-thirds of all deputies). All of this is intended to prevent, especially, the intrusion of political interests in its function, given that this organizational independence, both administrative and jurisdictional, is also protected by constitutional numeral 167. They consider that, based on the foregoing, one should not make the mistake of confusing or assimilating the jurisdictional function in a broad sense, including the auxiliary function, with the strictly administrative function; an error that was avoided in the analyzed rulings numbers 2008-005179 and 2001-013273, as well as in the agreement of the Full Court. 6) Non-compliance with the voting quorum. They point out that the challenged norms are unconstitutional due to the omission of formal requirements or violation of parliamentary due process, but additionally, there is another aspect that further vitiates the approval procedure of the law questioned here with unconstitutionality, which is that, as they state, the text approved by the Special Commission in the session of July 27, 2017 (which was not the one voted on in the first debate), was duly consulted to the Supreme Court of Justice. By having issued a negative or disagreeing opinion, it changed or increased the number of Deputies required to vote affirmatively to approve the Law, increasing it to two-thirds of the 57 Deputies. They argue that, despite that obligation, the vote received was 31 Deputies in the first debate, failing to comply with that constitutional requirement established in Articles 119 and 167 of the Constitution. 7) Mandatory consultation by the Legislative Assembly on the bill approved by the Special Commission on July 27, 2017. They point out that the substitute texts preceding the one voted on in the first debate by the Plenary of the Legislative Assembly were consulted to the Supreme Court of Justice, complying with the mandate of Articles 167 of the Constitution and 126 of the Rules of Procedure of the Legislative Assembly regarding mandatory consultation. It is contrary to the Law of the Constitution that this did not occur with respect to the text finally voted on in the first debate and, subsequently, in the second debate. They argue that the result of the motion approved on July 27, 2017—affirmative majority opinion—by the Special Commission examining file 19.922, according to official communication number AL-20035-OFI-0043-2017 of July 31, 2017, was made known through a hearing granted to the Judicial Branch. Now, regarding this point, the plaintiffs question: if the consultation was not mandatory, why did the Legislative Branch make it for the texts preceding the one voted on in the first debate? They state that there is no other type of consultation that the Legislature must make to the Judiciary during the formation of a law; therefore, by having made the consultation, the Legislature automatically obligated itself to follow the provisions of Article 167 in relation to Article 119, both of the Political Constitution. They state that, as a product of the aforementioned mandatory consultation on the motion approved on July 27, 2017—official communication number AL-20035-OFI-0043-2017 of July 31, 2017—the Supreme Court of Justice issued an opinion, as recorded in official communication number SP-253-17 of August 10, 2017; an opinion that is negative or in disagreement with the approved text, thus aggravating the voting quorum to require two-thirds of the 57 Deputies. They maintain that if there was a consultation, the Legislature must abide by what the Judicial Branch responded and its consequences. They consider that the foregoing is clear evidence that, before the vote in the first debate, the constitutional obligation was indeed fulfilled and the Judicial Branch was duly consulted, issuing a negative opinion regarding the substitute text approved by the Special Commission on July 27, 2017, all before that "final" text was made known to the Plenary. This changes the initial requirement when processed via the fast track—Rule 208 bis of the Rules of Procedure of the Legislative Assembly—and therefore obligates the vote to require 38 votes. They indicate that, to further aggravate the defect, the consulted bill undergoes changes in the plenary, and this time it is not consulted to the Judicial Branch—a defect of unconstitutionality. But, additionally, an unconsulted bill is voted on which, if one seeks to remedy the situation by indicating that the majority opinion of the Commission was indeed consulted, then, due to the negative opinion of the Judicial Branch, it could not be approved with fewer than 38 votes—a defect of unconstitutionality. They estimate that we are facing a paradox: if it is decided that there was a consultation—the bill approved by the Commission—it should have been voted on with at least 38 votes, and this was not the case. They add that, if it is said that there was no consultation because it was unnecessary—the bill voted on in the first and second debate—how can the previous mandatory consultations be justified? Given that the bill was not even published until 8 days after it was voted on in the first debate. They insist that the text approved and unconsulted in the first debate by the Legislative Plenary on October 30, 2017, is a substitute text introduced by motion via Article 137 of the Rules of Procedure of the Legislative Assembly, published in Supplement No. 268 to Digital Gazette No. 212 of November 9, 2017. They point out that this last text was not consulted to the Supreme Court of Justice, as was appropriate, according to what was said above, in accordance with the provisions of Article 167 in relation to Article 119, both of the Political Constitution, regarding the organization and functioning of the Judicial Branch, estimating that this vitiates the procedure with unconstitutionality, contravening the Law of the Constitution. They add that, within the same procedure regulated in the Assembly's Rules of Procedure, Article 126 establishes this obligatory nature for this type of consultation; an obligatory nature that generates the need to respect the aggravated voting procedure resulting from the issuance of a negative opinion, as had occurred in this case. 8) Lack of publication of the substitute text approved by the Special Commission in session of September 13, 2016. They indicate that another of the extremely serious defects of the legislative procedure that was breached, and that burdens the hasty approval of Law 9544 with unconstitutionality, is that the substitute text of the bill, approved by the Special Commission in session of September 13, 2016, was not published.

They argue that the legislative procedure aimed at approving a law is a legally necessary and pre-established ordering of a succession of acts that must be carried out in a determined temporal sequence and that, therefore, it is legally binding. They add that, beyond this non-compliance with what its internal rules (interna corporis) establish, the Assembly must not lose sight of the fact that it is a representative body and not a sovereign one, and that in addition to complying with the procedural path (íter procedimental) previously approved by itself, it must observe Constitutional Law, and one of the primary rights is that of publicity, which is a direct product of its representative character. They recall that the publicity of bills becomes the only way in which the activity of the popular representatives transcends to the citizenry, thus operating as a constitutional guarantee that prevents Parliament from acting with its back to the citizenry, to the people, to the sovereign who has elected them and delegated to them the power to legislate; in this way, the Legislative Assembly is a link between the State and the political community, but keeping it clear that sovereignty resides in the people, as established by Article 105 of the Political Constitution. They indicate that, for the foregoing, compliance with the principle of publicity is required since its action (the formation of the law in this case) must necessarily be projected towards the community, since the people must have knowledge of what is intended to be modified and the conditions under which that modification is proposed; however, the bill drafted by the Unions of the Judicial Branch (Gremios del Poder Judicial) representing the judicial collective, embodied in the substitute text approved on September 13, 2016, was never made known through the mandatory publication. They consider that, for this reason, we are facing an essential defect (vicio esencial), coupled with the fact that the rule approved by the Plenary that regulates procedure 208 bis for hearing bill 19,922, prescribes the mandatory nature of publication, and by not doing so, the due legislative process or the mandatory compliance with the form in the law-making process is again trampled. They warn that there is not even a motion to dispense with the publication of the bill under analysis, since in accordance with the rules previously established according to the legislative procedure approved by the legislative Plenary for the processing of legislative file number 19,922 in Ordinary Session No. 37 of June 30, 2016, and based on the provisions of Article 208 bis of the Regulations of the Legislative Assembly, that publication becomes mandatory, as is clear from subsection h of point 2 “Substantive Motions” of the procedure in question:

“h.- If during the hearing of the file in its processing in committee, a motion for a substitute text is approved or when the committee agrees to changes that substantially modify the bill, the Presidency of the Committee shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the hearing of the bill shall be suspended…” (highlights from the brief).

They consider that there is no different interpretation that can be given to the clear literalness of the rule approved for processing the bill via Article 208 bis of the Regulations of the Legislative Assembly, since the approved text constituted a new situation to be analyzed and discussed within the Committee appointed for that purpose. They add that the non-publication, in addition to all of the above, contravenes the pre-established rules for the indicated fast-track processing, which in their opinion, violates the due legislative process. They argue that, certainly, this was also not the text that the Special Committee finally approved on July 27, 2017, but it was indeed published in Supplement (Alcance) No. 189 to Digital Gazette No. 147 of August 4, 2017, which in no way eliminates the requirement to observe the principle of publicity nor the obligation to observe the rules agreed upon in the Legislative Plenary for the processing by special procedure of the bill in the formation process of Law 9544, via Article 208 bis of the Legislative Regulations. They point out that it should not be overlooked that we are facing a much more restrictive procedure than the ordinary one in the law-making process, in which principles such as the democratic principle and publicity must be protected—in a more meticulous manner. They allege that the fact that the text in question—the unpublished one—was not the one finally approved by the Special Committee on July 27, 2017—a text that was duly published—does not cure the defect (vicio) of the non-publication of the first substitute text. They argue that this protective stance regarding the mandatory nature of publication has been upheld by this Chamber itself when evacuating Optional Legislative Consultations of Constitutionality filed regarding the approval of the bill called the Tax Solidarity Law, legislative file No. 18,261, issuing judgment No. 2012-004621 at 4:00 p.m. on April 10, 2012:

“VIII.- This Constitutional Court warns that when the Legislative Assembly, via an order motion under Article 208 bis of the Regulations, creates a special procedure, the application and observance of it must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but as such, it will always be an exception. The duty of the various legislative bodies to strictly, zealously, and scrupulously adhere to the previously designed special procedure, avoids any infringement of the principles of legal certainty (emphasized by this Court in Vote No. 398-2005 at 12:10 p.m. on January 21, 2005) and democratic principle. Consequently, in the face of a special and fast legislative procedure, the previously established deadlines, stages, and requirements must be subject to a restrictive and rigorous interpretation, being that the margin of admissible flexibility in the face of ordinary procedures, through expansive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the path (iter) created, exceptionally, by a supermajority.

VIII.- ESSENTIAL PROCEDURAL DEFECT OF AN EVIDENT AND MANIFEST CHARACTER DUE TO THE OMISSION OF THE PUBLICATION OF A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMITTEE THAT, TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. (...) In accordance with section I.2.h. of the special procedure approved ex Article 208 bis, 'If during the hearing of the file in its processing in committee, a motion for a substitute text is approved or when the committee agrees to changes that substantially modify the bill, the Presidency of the Committee shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity.' In this consultation, it is evident that the abundant number of approved substantive motions, taken together, produced a substantial change to the original bill, (...) Such substantive motions certainly address the subject matter regulated by the original and duly published bill, but their sum produces a substantial change. (...) Consequently, from reading the content of the substantive motions approved in the special committee, this Constitutional Court unanimously considers that there was an essential defect in the legislative procedure of an evident and manifest character that violated the principles of publicity and equality by omitting their publication, given that, together, they caused a substantial modification of the original text." (highlights are from the brief).

They argue that, based on the foregoing, omitting the publication indicated in the special procedure established via Article 208 bis of the Regulations of the Legislative Assembly, in the processing of the bill of what is now Law 9544—since the publication of the substitute text that was approved by the Special Committee on September 13, 2016 was omitted—implies that an essential defect (vicio esencial) was incurred, contrary to the due legislative process for the formation of the law, with a violation of the democratic principle and the principle of publicity, without the fact that said text was ultimately substituted being able to validate the procedure. They add that there is another vote of interest from the Chamber, number 2015-001241 at 11:31 a.m. on January 28, 2015, in which several articles of the Law on Corporate Tax No. 9024 of December 23, 2011 were declared unconstitutional for violating the principle of publicity:

“From the foregoing analysis and, particularly from what has been highlighted, it is clear that the unpublished substitute text introduced two sanctions that immobilize any corporation, such as the non-issuance of certifications of legal personality and the cancellation of the registration of documents for delinquents. In this sense, it is also appreciated that the substitute text approved essential aspects of the tax, relating to sanctions, which were not provided for in the original bill and which, therefore, merited guaranteeing the constitutional principle of publicity. (...), in the formation of the law in question, substantial requirements or procedures relating to the publicity of the bill were violated, a principle that, as has been reiterated, is basic in a Social and Democratic State governed by the Rule of Law, even more so when it concerns tax matters. Indeed, the omission of a new publication of the bill, in order to guarantee the publicity of the text, as well as to ensure the broadest citizen and institutional participation, violated an essential aspect of the parliamentary procedure, whose omission entails a defect of unconstitutionality in the legislative procedure." (highlights from the brief).

They reiterate that the text not published during the formation process of Law 9544 varied aspects such as retirement age, years of service, worker contributions, years worked to be taken into consideration for calculating the pension or retirement, hence the imperative need to comply with the publicity requirement. They indicate that although the preceding citation refers to a tax reform and the Retirement and Pension Regime of the Judicial Branch does not have that nuance, the truth of the matter is that it was a topic that was indeed of interest to the country, as it remained pending and was covered by the media; and that, with respect to this action under study, the issue is of utmost interest to a considerable group of the population, such as judicial employees, and further, that the citizenry in general has the right to know and understand the reasons why certain sectors, groups, subjects, activities, goods, and services will have one or another pension system, what the financial contribution or participation of the State as Employer will be, for example, in addition to any eventual temporary provisions (transitorios), especially when public money is at stake, what pension amounts judicial employees would end up with, how much state treasury money the State would continue to contribute, whether what they have wrongly termed “luxury pensions” were limited and by how much, and who would be responsible for continuing to administer the funds from this fund. They argue that all these are aspects of clear public interest and, nevertheless, without justification, were not duly communicated to the general population and, in particular, to the judicial population through the mandatory publication of the bill approved on September 13, 2016. They indicate that another relevant vote on the subject is 2017-019636 at 9:15 a.m. on December 6, 2017, according to which:

“In this sense, these circumstances and the obligation to publish bills is contained in the principle of publicity, which must serve as a vector of legitimacy for any representative body of popular sovereignty. In this sense, parliaments and their acts are of great value and importance for the democratic life of countries, and their actions must be allowed to be ventilated with transparency and openly, as they are the political and legal centers of a Nation, and the primary place where a disarticulated society must be modulated. Now, this Chamber’s jurisprudence has been decisive in assigning significant weight to the principle of publicity as a substantial requirement within the legislative process, concerning ordinary law and constitutional amendment. (...). Furthermore, this Chamber has explained with crystal clarity the scope of the obligation to publish bills. By Chamber resolution No. 2002-3458" (highlights are from the brief).

They point out that the democratic and transparent exercise of publishing bills cannot be reduced to interpreting it as a mere "procedure" that can eventually be ignored with no consequences. They consider that the Legislative Assembly must be clear that its work, exercised by delegation from the sovereign, must be accountable, transparent, and subject to the scrutiny of the people, hence it cannot be lightly resolved that an unsubstituted substitute text causes no major inconvenience in the formation of a law. 9) Non-compliance with the procedure established in the Regulations of the Legislative Assembly by omitting the publication of the bill. They argue that Article 116 of the Regulations of the Legislative Assembly establishes the mandatory publication of every bill, without exceptions, along with which any other document the President of the Assembly considers may be published. They add that Article 117 of the same regulatory body establishes that when forming the original file, the Archives Department shall send a copy for its due publication, and all of this is related to Article 121, also of the cited Regulations, because in order to include a bill on the agenda, 5 business days must have elapsed since it was published in the Official Gazette. They point out that there was a bill approved by the Special Committee in a session on September 13, 2016, which, in order to be included on the agenda of the Advisory Committee (Comisión Dictaminadora), had to be published, but it was not. They consider that, evidently, the due legislative process or procedure in the formation of Law 9544 was grossly violated; an interpretation contrary to what has been indicated would open the door for original or substitute texts that are subsequently modified by other substitute texts not to have to be published, violating principles such as the democratic principle and publicity, but above all, so that the provisions of Articles 116, 117, and 121 of the Regulations of the Legislative Assembly could be ignored. They affirm that the lack of publication is an essential defect (vicio esencial) in and of itself, so the fact that, subsequently, said text was replaced by another that was published does not have the power to cure the evidenced defect (highlights from the brief). 10) Late publication of the substitute text of the bill approved in First Debate by the Legislative Plenary. They argue that another very serious defect (vicio) related to the publication of bills and the foregoing is that, in legislative file No. 19,922, the substitute text approved in the first debate by the Legislative Plenary on October 30, 2017, was published in Supplement (Alcance) 268 to Digital Gazette No. 212 on November 9, 2017. They further note that, on November 1, 2017, a group of legislators filed a consultation of constitutionality regarding the bill that resulted in Law 9544; that is, when filing said optional consultation before the Constitutional Chamber, the bill had not yet been published, despite having already been voted on in the first debate, thereby violating an essential procedure of the legislative process because the publication of the substitute text of the bill should have occurred before its approval in the first debate. They affirm that having done so under the indicated conditions violates the democratic principle by preventing the citizenry from knowing, prior to its approval, the substitute text of the bill, and the question must be analyzed: what sense can there be in retroactively publishing a bill that has already been voted on in the first debate? They consider that this late publication has the same effects as non-publication because it prevented the population from knowing, prior to its approval, the final text of the bill and from being able to duly oversee the legislative work; a possibility that was prevented, making it an essential defect in the legislative procedure that cannot be cured by subsequent publication. They believe that, once again, this group of Deputies forgot that the exercise of their function is, or was, delegated by the sovereign, whom they must respect and keep informed, as well as render accounts to, because a bill cannot be voted on without the sovereign knowing what is going to be voted on. They conclude by requesting that Law 9544 be declared unconstitutional in its entirety for flagrant violations of the due legislative process or law-making procedure, as well as for being contrary to principles, norms, and constitutional jurisprudence.

44.- On June 1, 2018, the Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the Substitute Magistrate José Paulino Hernández and the Substitute Magistrate Marta Esquivel, filed a recusal (inhibitoria) in identical terms to how they did so in the main file 18-007819-0007-CO, considering that they have a direct interest in the outcome of this unconstitutionality action.

45.- In a resolution of the Acting Presidency of the Constitutional Chamber at 11:05 a.m. on June 5, 2018, the Proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and the Substitutes Hernández Gutiérrez and Esquivel Rodríguez were separated from hearing this matter, ordering that the pertinent communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Law of Constitutional Jurisdiction.

46.- By means of an official communication added to the electronic file on June 11, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6157 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, and Magistrate Hernández López, as well as Substitute Magistrate José Paulino Hernández Gutiérrez and Substitute Magistrate Marta Esquivel Rodríguez for having recused themselves from hearing this unconstitutionality action. It is reported that the Substitute Magistrates selected are: Anamari Garro Vargas, Alejandro Delgado Faith, Rónald Salazar Murillo, Ana María Picado Brenes, Hubert Fernández Argüello, Alicia María Salas Torres, and Jorge Araya García.

47.- On June 13, 2018, Substitute Magistrates Ana María Picado Brenes and Alicia Salas Torres filed a recusal request; likewise, Substitute Magistrates Jorge Araya García did so on June 14, 2018; Hubert Fernández Argüello on June 15 following; Anamari Garro Vargas on June 19 thereafter; and Rónald Salazar Murillo on June 28, 2018, all in similar terms to what they raised in the main file number 18-007819-0007-CO.

48.- In a resolution at 9:42 a.m. on June 28, 2018, the Acting Presidency of the Constitutional Chamber ordered the separation of the Substitute Magistrates Anamari Garro Vargas, Rónald Salazar Murillo, Ana María Picado Brenes, Hubert Fernández Argüello, Alicia Salas Torres, and Jorge Araya García, as well as to communicate the pertinent information to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to the provisions of Article 6 of the Law of Constitutional Jurisdiction.

49.- By official communication added to the electronic file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6229 carried out for the substitution of Magistrates Anamari Garro Vargas, Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Jorge Araya García, and Ana María Picado Brenes, stating that, because the Chamber had originally requested 6 substitutes and there are only 3 available, the draw was conducted with the available substitutes, selecting Ileana Sánchez Navarro, María Lucila Monge Pizarro, and Mauricio Chacón Jiménez.

50.- On June 4, 2018, the Substitute Magistrates Alicia Salas Torres, Ileana Sánchez Navarro, Lucila Monge Pizarro, and Mauricio Chacón Jiménez appeared and each presented a recusal request in this file, in the same terms in which they did so in the main file 18-007819-0007-CO.

51.- The Acting Presidency of the Constitutional Chamber, in a resolution at 9:13 a.m. on July 5, 2018, separated the Substitute Magistrates Ileana Sánchez Navarro, Lucila Monge Pizarro, and the Substitute Magistrate Mauricio Chacón Jiménez from hearing this process and ordered that the pertinent communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to the provisions of Article 6 of the Law of Constitutional Jurisdiction.

52.- By means of a resolution of the Acting Presidency of the Constitutional Chamber at 9:50 a.m. on July 5, 2018, and based on what was resolved by the President of the Constitutional Chamber - Magistrate Castillo Víquez - at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, and José Paulino Hernández Gutiérrez were declared enabled to hear this unconstitutionality action, and it was ordered to continue with the processing of the file.

53.- In a resolution of the Presidency of the Chamber at 11:25 a.m. on July 5, 2018, the President of the Legislative Assembly was requested to, within a period of 3 days, send to this Court the legislative file corresponding to the approval of Law No. 9544 published in the Official Gazette La Gaceta No. 89 of May 22, 2018.

54.- In a document dated February 12, 2019, Magistrate Fernando Cruz Castro appears to state that in this file and in all others that have been accumulated to the main file number 18-007819-0007-CO, he, along with other Magistrates, presented a recusal request because the reform to the Law of the Retirement and Pension Regime of the Judicial Branch is being challenged. He alleges that although said recusal was initially accepted, subsequently, all the Magistrates were enabled based on the principle of non-waiver of jurisdiction. He argues that since August 2018 he has held the position of President of the Supreme Court of Justice and therefore considers that he has a new reason to request recusal. He adds that, in other proceedings before this Chamber where he has been a respondent or intervenor in his capacity as President of the Supreme Court of Justice, he has requested recusal because he has considered it improper for him to act as a judge in a matter where he has been named as a party in said capacity, estimating that, in the files mentioned supra, the same situation applies because he cannot participate in the vote on those actions due to the fact that, as President of the Court, he will be called upon to report on the merits since the regulations are related to the Judicial Branch. He alleges that, for this reason, he presents this recusal and requests that the case file be sent to the Presidency of the Constitutional Chamber so that it may resolve what is appropriate in accordance with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

55.- By resolution at 12:52 p.m. on February 12, 2019, and based on what was resolved at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, the President of the Constitutional Chamber - Magistrate Fernando Castillo - separated Magistrate Fernando Cruz Castro from hearing this matter and declared Magistrate Jorge Araya García enabled to hear it, ordering the processing of the file to continue.

56.- Substitute Magistrate José Paulino Hernández Gutiérrez appears in a document presented on February 13, 2019, to state that he is separating himself from hearing this matter because the Legislative Assembly has appointed the Proprietary Magistrate to the position in which he was working and, therefore, upon the cessation of his appointment, the supervening cause for which he had been enabled in the resolution at 9:50 a.m. on July 5, 2018, has disappeared. He requests that the background of the case be passed to the Presidency of the Chamber to proceed in accordance with the Law.

57.- The Presidency of the Constitutional Chamber, in a resolution at 8:10 a.m. on February 13, 2019, and based on the considerations expressed in the main file in the resolution at 2:40 p.m. on August 3, 2018, ordered the separation of Substitute Magistrate José Paulino Hernández Gutiérrez from hearing this case, declared Substitute Magistrate Marta Esquivel Rodríguez enabled to hear it, and that the processing of the file continue.

58.- Regarding the Unconstitutionality Action No. 18-008267-0007-CO. In an interlocutory resolution of the Full Chamber number 2019-002482 at 9:41 a.m. on February 13, 2019, it was ordered to consolidate the unconstitutionality action number 18-008267-0007-CO to the one that remained as the main file number 18-007819-0007-CO, and that it be considered an extension thereof due to the evident connection that exists between the reproaches raised in both proceedings and in order to avoid contradictory resolutions that could affect the rights and interests of the parties involved.

59.- Through a writing presented at the Secretariat of the Chamber at 10:05 a.m. on May 30, 2018, Álvaro Rodríguez Zamora, of legal age, divorced, retired, with ID card 1-477-319, resident of Tres Ríos, appears in his capacity as President of the Union Association of Researchers in Criminalistics and Related Fields (Sindicato Asociación de Investigadores en Criminalística y Afines), to file an unconstitutionality action against Law 9544 in toto and Article 208 bis of the Internal Regulations of the Legislative Assembly. He requests that, on an interlocutory basis, the validity of the Law challenged in this action be suspended and the repealed text be temporarily put into effect, in order to avoid serious dislocations to justice and social peace, considering that the entry into force of the challenged regulations could produce an accelerated exodus of the most competent judicial officials, which would place the administration of justice in a grave situation. He states that the standing to bring this process is based on the provisions of Article 75, paragraph 2, of the Law of Constitutional Jurisdiction, insofar as he acts in defense of the corporate and collective interests of its members or associates. 1) He argues that the substitute text approved on September 13, 2016, was not published, although it was subsequently approved by the Special Committee on July 27, 2017, and published on August 4, 2017; however, that text was not the one approved in the first debate by the Legislative Plenary on October 30, 2017, published in Supplement (Alcance) No. 268 to Digital Gazette No. 212 of November 9, 2017, since the one finally approved in the first debate was a substitute text introduced by motion via Article 137 of the Regulations of the Legislative Assembly. He argues that the text finally approved by the Legislative Plenary was published when the bill had already been approved in the first debate, and, in fact, several deputies had already filed the respective legislative consultation before this Court. 2) He points out that this last text was not consulted to the Supreme Court of Justice—as he considers was required—according to the provisions of Article 167 of the Political Constitution because it contained rules that referred to the organization and functioning of the Judicial Branch. He alleges that the challenged law was processed under an ad-hoc legislative procedure by the Plenary in application of Article 208 bis of the Internal Regulations of the Legislative Assembly. 3) He begins his argument on the constitutional violations he believes Law 9544 contains, referring to the democratic principle and notes that it is there where the basis for the control of defects in parliamentary procedures is found, both legislative procedure per se and the formation of legislative acts.

He argues that, in a democracy, the only viable mechanism for determining the citizenry's will in each case is to open the doors to dialogue, to unhurried discussion with openness toward the ideas of others; otherwise, one runs the risk of falling into a kind of "democratic tyranny" with a flagrant violation of the democratic principle—a principle that must necessarily be respected by the legislative procedure so that laws are not the product of the will of a few to the detriment of the needs, concerns, and aspirations of the majority. He argues that the Chamber's jurisprudence has defined the democratic principle in several rulings (2008-007687 at 14:50 on May 7, 2008, and 2007-002901 at 17:30 on February 28, 2007), as follows:

"(…) the parameter that allows one to deduce the degree of proximity a given society, at a given historical moment, achieves with respect to its ideal and its vocation for coming as close as possible to it. At a minimum, the democratic principle requires respect for the principles of political participation and representation—including everything concerning respect for minorities—the basis of our political system. (…) violations of procedure that constitute injuries to the democratic principle, the inescapable direction of parliamentary activity, are unconstitutional. Likewise, legislative proceedings that, because they are rushed or impulsive, result in debates lacking a process of quality and reflective deliberation, and that also lack a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial violations. Furthermore, omission of publication and omission of conducting the mandatory consultations established constitutionally have been considered substantial procedural defects (vicios sustanciales del procedimiento). Regarding the first aspect, since the Legislative Assembly is a representative body of the national community, the publicity of parliamentary procedures is essential, for sovereignty resides in the people and the deputies are merely their representatives (Article 105 of the Constitution); therefore, its activity must necessarily be transparent to the entire community, to such an extent that some specialists in constitutional law define it as a body of publicity" (see ruling number 2012-002675 at 11:52 on February 24, 2012).

He argues that this principle imposes three basic requirements on the drafting of laws and parliamentary procedures: 1) the rule of the majority, 2) the participation of minorities, and 3) the publicity of debates. He adds that, regarding the participation of minorities in the legislative procedure, the Chamber's jurisprudence has clarified that: "…the democratic principle, which in the context of a fundamentally political and deliberative body also means protecting the rights of the minority as a guiding criterion to prevent abuses or the dictatorship of the majorities (…) Respect for the minority is a fundamental principle of our constitutional order, stemming from the very concept of 'democracy,' understanding that ours is based on a continuous contrast of organized opinions that embodies the principle of 'government of the majority with participation of the minority, within a regime of freedom and equality'" (see ruling 990-92 at 16:30 on April 14, 1992). He adds that the democratic principle demands, in sum, that in the decision-making of legislative bodies, participation be given to all those involved under conditions of equality and freedom, thereby guaranteeing that the different political forces represented in Parliament can express and defend their opinions in order to influence the final decision. He argues that, ultimately, what the legislative procedure seeks is to ensure compliance with the democratic principle within a society that has adopted it as inherent to its political institutions; a principle that constitutes the parameter for establishing the degree of proximity a given society, at a given historical moment, achieves with respect to the ideal of a perfect democracy, as well as the intensity of its vocation for coming as close as possible to it. 4) Now, in relation to the foregoing, he refers to the principle of publicity and states that a democracy without publicity is inconceivable, as it makes political control over the actions of the rulers impossible. Within parliamentary procedures, this principle is of paramount importance and is articulated in a significant series of constitutional and regulatory provisions. He argues that, in the first place, the rule is that sessions—both of Committees and of the Plenary—are public, except in very qualified cases, with the latter being broadcast live by a station concessionaire of the Legislative Assembly itself, unless declared private; this guarantees that all the people can have firsthand knowledge of the matters debated in the legislative body. He points out that votes are public, and if any deputy requests it, they can be taken by roll-call with reasoned votes; the minutes of their sessions are public documents, accessible to any citizen who requests them, so that affected parties can present objections to or observations on the bills being processed within the legislative body. He recalls that the Chamber's jurisprudence has clarified that:

"there is no doubt in the Chamber's view that the Regulations of the Legislative Assembly, through the determination of speaking times for deputies, both in the Plenary and in committees, enables broad participation by all sectors in the parliamentary debate, and furthermore, when it addresses the proportional participation of minorities, it does nothing more than develop what the Political Constitution guarantees regarding quantitatively smaller groups, also represented within it. Since the Legislative Assembly is a representative body of the national community, the publicity of parliamentary procedures is essential, for sovereignty resides in the people and the deputies are merely their representatives (Article 105 of the Constitution); therefore, its activity must necessarily be transparent to the entire community, to such an extent that some specialists in constitutional law define it as a body of publicity. The projection of parliamentary activity outward is a constitutional guarantee (Article 117 of the Political Constitution); hence, the provisions of the Regulations that implement that projection and the manner of making it effective must be classified as applied constitutional law, and their disregard, as an essential violation" (see ruling number 2000-003220 at 10:30 on April 18, 2000).

He adds that the Chamber's jurisprudence has established that "the omission of publication constitutes an essential defect (vicio esencial) that invalidates the legislative proceedings due to its relevance for the purposes of the democratic principle" (see ruling number 2006-009567 at 16:10 on July 5, 2006). For his part, he points out that according to ruling No. 2013-008252 at 9:00 on June 21, 2013, "it becomes necessary to warn that the principle of publicity is not an end in itself; rather, its importance lies, on the one hand, in guaranteeing transparency, and, on the other, in enabling the participation of interested subjects" "(…) At the constitutional level, this quality enhances the fundamental purpose of publicity: to promote the intervention of citizens in the fundamental decisions of the State. If this purpose has not been violated and it is observed that there has been no genuine obstruction of popular participation, then an error in publication cannot, by itself, constitute an essential defect (vicio esencial) of the legislative procedure" (see ruling No. 2013-008252 at 9:00 on June 21, 2013). He indicates that, mutatis mutandis, if publication occurs at a different procedural moment, it must be assessed whether there has been a genuine obstruction of popular participation or whether the transparency of the legislative procedure has been seriously affected, in order to determine the existence of a substantial defect in the legislative procedure; if that is not the case, one would not be in the presence of such a defect (see in this sense ruling No. 2018-003851 at 11:51 on March 7, 2018). He states that, for this reason, when the essential content of such principles is violated during the legislative iter, essential defects (vicios esenciales) occur that are susceptible to review through the various constitutionality control processes. He adds that the jurisprudence of the Constitutional Chamber has clarified that "the 'substantial requirements or proceedings' of which the Law of Constitutional Jurisdiction speaks are those expressly and more or less exhaustively required by the Constitution, since it must be assumed that, by being specified by the Constitution and reserved to itself, they must unavoidably be classified as 'substantial,' and those that, established in the Legislative Regulations, are deducible from the democratic principle (in general or in its various particular manifestations, such as, for example, political pluralism or the principle of publicity (see ruling 1994-003513 at 8:57 on July 15, 1994)). He considers that in the procedure for approving Law 9544, the democratic principle and the principle of publicity have been violated and, in that line, he states that the substitute text in the Committee approved on September 13, 2016, was not published, and although the text was subsequently approved by the Committee on July 27, 2017, and published on August 4, 2017, the fact of the matter is that the report approved in the first debate was published only on November 9, 2017, when the bill had already been approved in first debate and, indeed, the Chamber was already hearing a legislative consultation on constitutionality filed by several deputies. He argues that it cannot be ignored that the motion regulating the approval procedure for the challenged law established that the substitute text must be published; therefore, in the processing of the challenged law, a transgression occurred regarding what was established concerning publicity in the motion that regulated the procedure, for it must be taken into account that, since it involved the application of Article 208 bis of the Internal Regulations of the Legislative Assembly, that motion constituted the Regulations governing the processing of that bill, and one can conclude, without much effort, that the regulatory requirement to publish substitute texts constituted an essential requirement of that specific legislative procedure. He states that, given that it involved an abbreviated legislative procedure, the principle of publicity of the discussed or approved rules should have been respected with greater rigor. He indicates that the inherent weakness of an abbreviated procedure requires a more rigorous application of the publicity requirement, without admitting validation by the failure to observe a requirement as important as publicity. He warns that the publicity of bills is the only way in which the activity of the people's representatives is transparent to the entire population, as it represents the outward projection of parliamentary activity, operating as a constitutional guarantee that prevents Parliament from acting with its back turned to the citizenry. He argues that the lack of publication of the cited reports caused the nullity of Law 9544 for three reasons: 1) the rule regulating the procedure required it; 2) these were substitute texts that had to be published before being discussed and approved, whether in Committee or in the Legislative Plenary; 3) the lack of publication did not allow the population to know the text being discussed at that moment, further preventing the citizenry from making statements about what Parliament intended with the bill, thereby violating the democratic principle. He states that, in this case, it is not questioned whether the publication of some rules that did not vary the essence of the bill was omitted, because what is important is that, in this matter, publicity was completely omitted during the development of an abbreviated legislative procedure, thereby directly violating the principle of publicity and the democratic principle governing parliamentary procedure. 5) He argues that there has been a violation of Article 208 bis of the Internal Regulations of the Legislative Assembly, which, in turn, has produced the violation of various constitutional principles. He points out that regarding the nature of Parliamentary Law (Derecho Parlamentario) and the limits of the Chamber's jurisdiction in matters of legislative procedure, the Chamber has clearly established that:

"The fundamental mission of Parliaments is to adopt decisions with the participation of the array of political forces representing the diverse sectors of civil society. Parliamentary Law (Derecho Parlamentario) serves an instrumental function to that end—although it also has a political function—of facilitating and ordering that process. This law has the characteristic of arising from the 'interna corporis,' from the self-regulatory capacity and unique dynamic of parliaments. Its limit, of course, lies in the Constitution, in the principles and values of the ideological regime in which it operates. For this reason, this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects (vicios sustanciales) that violate the constitutional principles and values applicable to the matter; otherwise, it would be affecting the self-regulatory and functional capacity of Parliament (interna corporis), distorting its role as guardian of constitutional supremacy into that of a kind of Ad hoc senate" (see ruling number 2007-009699 at 10:00 on July 4, 2007) (the highlights are from the brief).

He adds that the Chamber has also clarified that:

"the self-determination of Parliament over its internal actions—repeatedly recognized by this Tribunal—'interna corporis,' is one of its essential powers expressly recognized by the Political Constitution in its Article 121, subsection 22), and is consubstantial with the democratic system. The objective pursued by granting the Assembly the competence to self-organize is so that, through it, its procedures for acting, organization, and functioning, and consequently its internal organization, may be regulated within the parameters required by the principles of democracy, equality, and non-discrimination, with all their derivatives (…) the Chamber considers that it must not interfere with Parliament's right to self-regulation, except when, as stated, one of the indicated principles is violated, which in this specific case would involve affecting the right of amendment, understood as the participation mechanism available to deputies to influence the law-making process… Parliament has the right, in exercising its own self-regulatory power, to conciliate or balance, in concrete situations, not only the right of amendment, but also the other constitutional principles that also bind its actions, such as respect for majorities and reasonableness; that is, the harmonization of each and every one of the constitutional principles that must coexist during the legislative procedure is a competence belonging to Parliament and specifically to the Director of the debate and to the deputies, and it must be assumed that such functions are performed in compliance with the legal system and its principles" (see ruling number 2005-007961 at 17:50 on June 21, 2005) (the highlights are from the brief).

He states that, within the parliamentary order, the Internal Regulations of the Legislative Assembly (RIAL) constitute the technical instrument through which the political process is transformed into a legal process, and for this reason it must be elastic, as it constitutes the dynamic core of that order whose purpose is to absorb and rationalize the tensions and demands of the political process generated in Parliament. He points out that the concept of flexibility of the RIAL must be combined with that of stability, in the sense that it constitutes a factor of institutionalization for the political forces operating in Parliament, meaning it responds to permanent demands in which the parliamentary order finds its reason for being and operating; demands that refer, for example, to the majority acting without preventing minorities from exercising their function, and these, for their part, must act without usurping the functional powers of the majority. He summarizes by saying that the limits on the Legislative Assembly's power to self-regulate are constituted by unrestricted respect for the constitutional principles that underpin and legitimize the legislative procedure: the democratic principle, the principle of publicity, and the constitutional principle of legal certainty. He refers to the limits on the constitutionality control of the "interna corporis" and states that the competence of constitutional courts to control the constitutional legitimacy of the "interna corporis" does not imply a violation of the principle of Parliamentary sovereignty and independence, for such control is exercised based on the external manifestation of the Legislative Power, whose activity, within a Rule of Law State with a rigid Constitution, is subject to constitutionality oversight. He recalls that Parliamentary Law (Derecho Parlamentario) in the modern pluralistic democratic State is governed by the dialectical majority-minority tension, so its guiding principle can no longer be the guarantee of areas exempt from Executive Power interference but rather the realization of the superior value of political pluralism, guaranteeing the realization of the values of respect for minorities and publicity of debates; however, one must not lose sight of the fact that legislative power is not pre-programmed, in contrast to administrative power, which is considered regulated. He adds that constitutionality control cannot invade that intangible sphere that Parliament has to deploy the material principles enshrined in the Constitution, under the pretext of controlling the formative iter of parliamentary procedures, especially the legislative one. He states that, consequently, only when the defect (vicio) is so serious that it undermines any of the essential contents articulating the democratic principle within parliamentary procedures can the constitutional jurisdiction control the constitutionality of the interna corporis, and always on the condition that the alleged defects cannot be remedied by other legal means available to the legislative body itself. He argues that, in this specific case, Article 208 bis of the RIAL violates the democratic principle. He indicates that it is evident there is a substantial difference between a reform of the Regulations, which seeks to organize and adapt to the times (two-party system-multiparty system) in its daily work so that the Legislative Power is more effective in regulating situations occurring in the country, and the power to reform a specific article to process a particular bill. He points out that the Constitution does not regulate the reform procedure for the RIAL, so these same regulations are the normative instrument regulating the reform procedures of the "interna corporis"; however, such procedures must conform to the Law of the Constitution, in order to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure. He points out that derived from its self-regulatory power contemplated in Article 121, subsection 22) of the Political Constitution, the Legislative Assembly has the power to establish special procedures; however, these must be defined expressly and in detail, since, otherwise, accepting the possibility that the Assembly may apply special procedures to the processing of reforms to its Regulations and bills, under the terms established in Article 208 bis, without the rules of the procedure to be followed being defined beforehand, constitutes a clear injury to the principle of legal certainty and the democratic principle, because deputies have the right to know, previously and with sufficient advance notice, the procedure to which they will be subject in the processing of a specific bill in order to exercise the corresponding participation and control mechanisms. He considers that the Legislative Assembly's omission to adequately regulate the special procedures contemplated in the rule in question infringes upon the democratic principle; indeed, the establishment of special procedures to process certain bills must be in accordance with the Law of the Constitution, in order to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure, but also so that participation and control mechanisms can be exercised efficiently and effectively. He affirms that leaving the procedure to be applied in each specific case to the discretion of a majority, without prior knowledge of the entirety of Parliament's members, causes an injury to the democratic principle to the detriment of minorities, insofar as nothing guarantees that, under the proposed scenario, minorities will not be affected in the exercise of the constitutional rights of their representatives in Congress. He states that what happened in the procedure approved to consider the challenged law constitutes a clear example of what has been indicated, since because it involves a privileged motion, in principle it does not need to be publicized with sufficient advance notice, regardless of its complexity. He adds that motions to modify it are also not appropriate, since it would have to be a new proposal, for which the other factions have an extremely short, almost immediate time, and once the motion is approved by the majorities, the minorities have no option but to submit to the limited participation granted to them in the created procedure; this evidently violates the right of amendment and, therefore, the democratic principle. He argues that every deputy holds the constitutional right to participate in the law-making process and thus influence the definitive content of the law. He argues that certainly the Legislative Assembly has the power to arrange its regulations, such as establishing special procedures; however, he considers that the legal mechanism authorized by Article 208 bis of the RIAL is harmful to the principle of legal certainty, the right of political participation, the right of representation, as well as the democratic principle and the right of amendment of deputies, insofar as the omission to regulate such procedures with the necessary advance notice and participation by all deputies renders such principles nugatory. In his view, Article 208 bis of the RIAL violates the democratic principle, respect for which is essential for any examination of conformity or non-conformity with the Constitution, of any rule or act. He warns that, on this matter, the Chamber has unanimously stated that:

"what the legislative procedure seeks is to ensure compliance with the democratic principle within a society that has adopted it as inherent to its political institutions. At a minimum, the democratic principle requires respect for the principles of political participation and representation—including everything concerning respect for minorities—the basis of our political system. (…) Based on the foregoing observations, it can be said that violations of procedure that constitute injuries to the democratic principle, the inescapable direction of parliamentary activity, are unconstitutional. Likewise, legislative proceedings that, because they are rushed or impulsive, result in debates lacking a process of quality and reflective deliberation, and that also lack a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial violations. Furthermore, omission of publication and omission of conducting the mandatory consultations established constitutionally have been considered substantial procedural defects (vicios sustanciales del procedimiento)" (see ruling number 2012-002675 at 11:52 on February 24, 2012) (the highlight is from the brief).

He argues that, in this case, the challenged rule allows certain bills to be processed through an ad-hoc procedure by timely agreement of the majorities and without taking into account the participation of minorities regarding the determination of its specific regulations. He considers that Article 208 bis of the RIAL also transgresses the principle of publicity, and in that sense, he recalls that the approval procedure for the challenged law was created by means of a privileged motion, which, according to Article 153 of the Regulations, can be presented at any time during the debate, with its discussion proceeding immediately; they do not need to be announced except at the very moment of their presentation, which is insufficient for it to be analyzed prior to its adoption by all deputies. He estimates that leaving the procedure to be applied in each specific case to the discretion of a majority, without prior knowledge of the entirety of Parliament's members, causes an injury to the principle of publicity to the detriment of minorities, insofar as nothing guarantees that, under the regime and application of Article 208 bis of the Legislative Regulations, minorities will not be affected in the exercise of the constitutional rights of their representatives in Congress; once the motion is approved by the majorities, the minority factions have no option but to submit to the limited participation granted to them in the created procedure. He states that under Article 208 bis of the RIAL, the creation of an ad-hoc procedure for processing a particular bill is not publicized; rather, it is simply read in the Plenary and voted on immediately, without either the deputies or the citizens having the possibility of studying it, possibly making observations to modify it, or ensuring that the rights of deputies to present motions are respected and that no omission of minority rights occurs during its processing. He adds that Article 208 bis of the RIAL violates the principle of legal certainty, and from this perspective, there is no doubt whatsoever that when the legislator does not clearly establish the procedural rules for applying what is intended in Article 208 bis, or forgets to establish suitable regulations or legislative practices for this purpose, it incurs an evasion or non-compliance with its constitutionally assigned duties. He states that the introduction of the cited rule into the Regulations in the terms in which it was approved means that whenever the majorities discretionarily so decide, they can, through a privileged motion, give an exceptional proceeding to the bill under discussion, leaving its consideration subject to procedures not established in the Regulations; all of which leads to a situation of complete legal uncertainty. He considers that Article 208 bis of the RIAL, in the terms in which it is drafted, means that whenever the majorities discretionarily so decide, they can, by means of a privileged motion, establish an exceptional procedural regulation for a specific bill in process and that its discussion and eventual approval are subject to procedures not established in the Regulations, all of which produces a situation of legal uncertainty for both the deputies and the Legislative Assembly itself, as a parliamentary institution. He summarizes by saying that Article 208 bis of the Regulations of the Legislative Assembly constitutes an element of complete rupture with the indicated principles and allows that, through a motion approved by two-thirds of the deputies, the Legislative Power can threaten its condition as a body that guarantees popular representation, according to the structure designed in Title Nine of the Political Constitution of 1949, to the substantial detriment of the democratic principle, the principle of publicity, and the principle of legal certainty.

It concludes by requesting that it be declared that article 208 bis of the Internal Regulation of the Legislative Assembly is contrary to the constitutional principle of legal certainty, the democratic principle, and the constitutional principle of publicity, as well as that, consistent with the foregoing, Law 9544 in toto is unconstitutional for having been processed under the protection of an unconstitutional regulation, as well as for violating the democratic principle and the principle of publicity.

60.- On June 1, 2018, the Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the Substitute Magistrate José Paulino Hernández and the Substitute Magistrate Marta Esquivel, filed a recusal (inhibitoria) considering that they have a direct interest in the outcome of this action of unconstitutionality (in terms identical to how they did so in the main file 18-007819-0007-CO).

61.- In a resolution of the Acting Presidency of the Chamber -issued by Magistrate Jorge Araya García- at 11:15 a.m. on June 5, 2018, it was ordered that Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, Substitute Magistrate José Paulino Hernández Gutiérrez, as well as Substitute Magistrate Marta Esquivel Rodríguez, be separated from the knowledge of the matter, and to communicate what is pertinent to the Presidency of the Supreme Court of Justice so that their substitution may proceed in accordance with Article 6 of the Ley de la Jurisdicción Constitucional.

62.- Through an official communication added to the electronic file on June 11, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6159 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez, for having recused themselves from the knowledge of this action of unconstitutionality. It is reported that the selected Substitute Magistrates are: Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Hubert Fernández Argüello, Alejandro Delgado Faith, Lucila Monge Pizarro, and Anamari Garro Vargas.

63.- On June 12, 2018, Substitute Magistrate Alejandro Delgado Faith and Substitute Magistrate Lucila Monge Pizarro; on June 14, 2018, Substitute Magistrates Mauricio Chacón Jiménez and Jorge Araya García; on June 15, 2018, Substitute Magistrate Hubert Fernández Argüello; on June 19, 2018, Substitute Magistrate Anamari Garro; on June 21, 2018, Substitute Magistrate Lucila Monge Pizarro reiterated it; and on June 28, 2018, Substitute Magistrate Rónald Salazar Murillo, filed a recusal (inhibitoria) petition requesting to be separated from the knowledge of this file in terms identical to how they did so in the main file, number 18-007819-0007-CO.

64.- In a resolution of the Acting Presidency of the Constitutional Chamber -exercised by Substitute Magistrate Ana María Picado- at 8:52 a.m. on July 10, 2018, and in view of the statement by Substitute Magistrates Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Hubert Fernández Argüello, Alejandro Delgado Faith, Lucila Monge Pizarro, and Anamari Garro Vargas, it was ordered that they be separated from the knowledge of this proceeding and to communicate what is pertinent to the Presidency of the Supreme Court of Justice so that their substitution may proceed in accordance with Article 6 of the Ley de la Jurisdicción Constitucional.

65.- Through an official communication added to the electronic file on July 17, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6276 carried out for the substitution of Substitute Magistrates Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Alejandro Delgado Faith, Hubert Fernández Argüello, Lucila Monge Pizarro, and Anamari Garro Vargas for having recused themselves from the knowledge of this action of unconstitutionality. It is reported that the Chamber had originally requested 7 substitutes and there are only 3 available, so the draw was carried out with the available substitutes, with the selected Substitute Magistrates being: Ileana Isabel Sánchez Navarro, Ana María Picado Brenes, and Alicia Salas Torres.

66.- In documents filed with the Secretariat of the Chamber on July 18, 2018, Substitute Magistrates Alicia Salas Torres, Ileana Sánchez Navarro, and Ana María Picado Brenes appeared and filed a recusal (inhibitoria) petition in the same terms in which they did so in the main file number 18-007819-0007-CO.

67.- By means of a resolution of the Presidency of the Constitutional Chamber at 2:32 p.m. on August 3, 2018, and based on what was decided by the President of the Constitutional Chamber -Magistrate Castillo Víquez- at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, as well as Substitute Magistrates José Paulino Hernández Gutiérrez and Marta Eugenia Esquivel Rodríguez were declared qualified to hear this proceeding. Furthermore, Substitute Magistrates Ileana Sánchez Navarro, Ana María Picado Brenes, and Alicia Salas Torres were separated from the knowledge of this proceeding, ordering the continuation of the file's processing.

68.- Magistrate Fernando Cruz Castro appeared by means of a document filed on February 12, 2019, to state that in this file and in all the others that have been consolidated with the main file number 18-007819-0007-CO, he filed, together with other Magistrates, a recusal (inhibitoria) petition given that the reform to the Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial is being challenged. He argues that, although that recusal was initially accepted, subsequently, all the Magistrates were qualified based on the principle of the irrenunciability of competences. He argues that since August 2018 he has held the position of President of the Supreme Court of Justice and therefore considers that he has a new reason to request the recusal. He adds that, in other proceedings before this Chamber where he has been a respondent or intervener in his capacity as President of the Supreme Court of Justice, he has requested the recusal because he has considered it inappropriate for him to act as a judge in a matter where he has been called as a party in that capacity, considering that, in the files mentioned supra, the same situation exists because he cannot participate in the voting on those actions given that, as President of the Court, he will be called upon to report on the merits since the regulation is related to the Judicial Branch. He argues that, for this reason, he presents this recusal and requests that the case files be sent to the Presidency of the Constitutional Chamber so that the appropriate decision may be made in accordance with the provisions of Article 6 of the Ley de la Jurisdicción Constitucional.

69.- By means of a resolution of the Presidency of the Constitutional Chamber -exercised by Magistrate Fernando Castillo- at 1:00 p.m. on February 12, 2019, the recusal (inhibitoria) petition of Magistrate Fernando Cruz Castro is considered, and based on what was decided at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, he was separated from the knowledge of this matter and Substitute Magistrate Jorge Araya García was declared qualified to hear this matter, ordering the continuation of the file's processing.

70.- In a document filed on February 13, 2019, Substitute Magistrate José Paulino Hernández Gutiérrez appeared to state that he is separating himself from the knowledge of this matter because the Legislative Assembly has designated the proprietary Magistrate for the position in which he had been working, and, therefore, upon the cessation of his appointment, the supervening cause for which he had been qualified in the resolution at 1:48 p.m. on July 4, 2018, has disappeared. He requests that the background of the case be referred to the Presidency of the Chamber so that it may proceed according to law.

71.- The Presidency of the Constitutional Chamber, in a resolution at 8:16 a.m. on February 13, 2019, and based on the considerations expressed in the resolution at 2:40 p.m. on August 3, 2018, issued in the main file (18-007819-0007-CO), ordered the rejection of the petition filed by Substitute Magistrate José Paulino Hernández Gutiérrez and declares him qualified to hear the present matter, furthermore ordering the continuation of the file's processing.

72.- Regarding the Action of Unconstitutionality No. 18-008292-0007-CO. In the interlocutory resolution of the Full Chamber number 2019-002484 at 10:01 a.m. on February 13, 2019, it was ordered to consolidate the action of unconstitutionality number 18-008292-0007-CO with the one kept as the main file number 18-007819-0007-CO, and that it be considered as an expansion thereof, due to the evident connection that exists between the objections raised in both proceedings and in order to avoid contradictory resolutions that could affect the rights and interests of the involved parties.

73.- In a document filed with the Secretariat of the Chamber at 1:20 p.m. on May 30, 2018, Johnny Mejía Ávila appeared, of legal age, married twice, attorney, resident of Ciudad Colón de Mora de San José, with identity card number 9-044-592, in his capacity as President of the Board of Directors, and Óscar Enrique Umaña Chacón, of legal age, married once, licensed in Business Administration, with identity card number 3-0272-0995, resident of Cartago, in his capacity as General Manager, both representing the Cooperativa de Ahorro y Crédito de Servidores Judiciales R.L. named Coopejudicial R.L., and state that they are filing an action of unconstitutionality against articles 224, 224 bis, 236, and 236 bis and Transitory Provision V of the Ley Orgánica del Poder Judicial as reformed by Law number 9544 of May 22, 2018. They state that they have standing (legitimación) to file this action of unconstitutionality as a cooperative that represents all its base members, and because they believe they are in the presence of the defense of diffuse interests of a community that also encompasses the general interests of its members, whether they are active officials or retirees of the Judicial Branch. Consequently, they point out that their standing arises from Article 75, paragraph 2, of the Ley de la Jurisdicción Constitucional. a) They state that the Fondo de Jubilaciones y Pensiones of the Supreme Court of Justice is autonomous, dating back to 1939, meaning it predates even the Pension Regime of the Caja Costarricense de Seguro Social, and what the employer contributes is what any other contributes in a tripartite regime; it is not a regime charged to the national budget, it is self-sustaining, and, as of today, it has no financial deficit whatsoever. b) They state that, to promote the reform of the pension regime (the Law as of today), it has been justified that a deficit could exist, using as a basis an actuarial study that indicated that, if in 100 years there are no changes in the way the Fund is administered, the generation of a deficit of approximately five billion colones would be possible, but as of the date of filing this action, such a situation does not exist. He adds that the Fondo de Jubilaciones of the Judicial Branch has been operating as a fund, even, if one likes, in some way, substituting that of the Caja Costarricense de Seguro Social for judicial officials, as it does not depend on the latter or on the State, but is autonomous and self-sufficient. They argue that in the Judicial Branch there are only 41 pensions exceeding 5 million colones, which in an autonomous pension regime where officials contribute 4 times more than to the CCSS regime throughout their entire working life and, once retired, contribute 11 percent of their pension, when well administered, is unlikely to falter. They add that 70% of pensions, which are the bulk, do not exceed one and a half million colones, with these concentrated between ₡350,000.00 and ₡1,000,000.00, without overlooking that contributions are 4 times greater than any other retirement regime. They argue that, for these reasons, it is false that luxury pensions exist in the Judicial Branch and that this is a problem that has been attributed to the fund. c) They state that, in the draft bill known as the substitute text, now a Law of the Republic, it is indicated that persons who are already retired must pay up to a 35% solidarity contribution to the regime; that is, today a Judicial Branch retiree contributes 13% to the Fund, plus 5.5% to the CCSS, plus income tax which is around 15%, which means it is a regime in which Judicial Branch retirees contribute much more than those of other regimes. They add that if, in addition, the judicial retiree must contribute 35%, this amounts to a percentage exceeding 60% of the pension, which would mean impoverishing existing pensions because more than 60% of the pension is taken away, which would evidently be confiscatory, even though the Law limited it to 55%; to all this, an additional ₡5,000 colones for every ₡1,000 must be added to sustain the cost of the Junta Administradora of the Fund. They state that any reform to the Fondo de Jubilaciones of the Judicial Branch inevitably implies an impact on more than 16,000 families that, in one way or another, depend and/or will depend on that Fund. d) They point out that one of the greatest concerns is that by taking as a substitute text the draft bill from the Superintendency of Pensions, hastily patched together with the actuarial study that the Supreme Court of Justice had contracted from an Argentine firm called Melinsky & Pelligrinelli y Asociados, as well as the actuarial study from the Institute for Economic Sciences Research of the University of Costa Rica, distorted conclusions are reached about reality and the immediate future. They argue that the Superintendency of Pensions has always stated, and has done so emphatically since 2014, that it wishes to unify pension regimes with a view to their being substituted by individual capitalization plans -as was done in Chile with the disastrous result that had-, despite the fact that, as they claim, this implies modification of consolidated rights of retirees and impact on fundamental human rights such as the right to retirement, in addition to having indications of confiscation of their assets. Regarding the grounds on which they file this action of unconstitutionality: 1) they indicate that the Ley Orgánica del Poder Judicial No. 7333 in its title IX regulated the Régimen de Pensiones y Jubilaciones del Poder Judicial, which predates that of the CCSS and is self-sustaining; however, through Law 9544 published in Scope 106 of the Official Gazette La Gaceta number 89 of May 22, 2018, that Ley Orgánica del Poder Judicial of May 5, 1993, published in Scope of La Gaceta No. 124 of July 1, 1993, was reformed, thus becoming Law the draft bill contained in legislative file number 19,922, based on the substitute text from SUPEN. They argue that this law introduces drastic changes to the previous regime, absolutely transgressing rights and consolidated situations in favor of active judicial officials and regime retirees. They point out that among the important changes or differences that arise, there are:

• 1)a change from a calculation of the last best 24 salaries to 240 salaries updated with IPC and INEC indices.
• 2)a change in the retirement age from 62 to 65 years or from 30 years to 35 of service.
• 3)persons now retire with 82% of the average salary.

They state that the change, at a glance, is enormous, to the detriment of active judicial officials, taking into account —to mention just one factor— the enormous stress and workload to which the judicial official is subjected. They add that, regarding article 224 bis, these are completely new rules that severely penalize early retirement. They argue that the changes can be schematized in the following table:

Reforms to the Régimen de Jubilaciones y Pensiones del Poder Judicial Item Reform Affected Group Calculation of Retirement Pension 82% of the last 240 salaries Future retirees Ordinary Retirement Age 65 years Future retirees Years of service (ordinary retirement) 35 years Future retirees Minimum age (early retirement) 62 years for men and 60 years for women Future retirees Cap on pensions (tope) 4 million colones Future retirees Solidarity contribution 35% to 55% on a graduated scale over the excess of the pension cap (tope) Current retirees Contribution to the Fund 13% Active personnel and retirees (current and future) They point out that another topic they consider completely confiscatory is what is mentioned in articles 236 and 236 bis of Law 9544:

“Article 236- The Fondo de Jubilaciones y Pensiones del Poder Judicial shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial personnel, as well as from retirement and other pensions charged to the Fund, a percentage that will be withheld in the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the wages and salaries of its personnel.
• 3)A State contribution that shall be a percentage on wages and salaries equal to that established for the Disability, Old Age, and Death Regime of the Caja Costarricense de Seguro Social (CCSS).
• 4)The yields and other benefits that the Fund produces or could eventually generate or obtain.

In no case may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the total deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial, represent more than fifty-five percent (55%) of the total gross amount of the pension that by right corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be adjusted so that the sum is equal to fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the mandatory contribution established in this law shall enter the Fondo de Jubilaciones y Pensiones del Poder Judicial.

(As thus reformed by article 1 of law N° 9544 of April 24, 2018) Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity, and redistributive manner, according to the following table:

• a)On the excess over the cap (tope) established in article 225 and up to twenty-five percent (25%) of said cap, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the preceding margin, they shall contribute fifty-five percent (55%).

In no case may the sum of the special, solidarity, and redistributive contribution and the total deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial, represent more than fifty-five percent (55%) of the total gross amount of the pension that by right corresponds to the beneficiary. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be adjusted so that the sum is equal to fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity, and redistributive contribution established in this law shall enter the Fondo de Jubilaciones y Pensiones del Poder Judicial”.

They point out that this modification to the prior regime raised the contribution percentages to the regime and this, in their opinion, makes this law fully confiscatory, disproportionate, and unjust. They add that, regarding Transitory Provision VI, which provides:

“TRANSITORY PROVISION VI.- Judicial personnel who meet the requirements to acquire the right to a pension as established by the text of title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the protection of the provisions established in the aforementioned text”.

• 2)They consider that this transition period between the law introducing the reform and the reform itself is very short and is made disproportionate, irrational, and arbitrary, violating consolidated rights of judicial officials who wish to take their retirement. In this sense, they ask that one consider a person who has worked for more than 25 years and who, under the former law, had 5 years left to retire, but who, with the reform, now needs 10 more years to reach 35 years, that is, their service time to be able to retire with the rights of the reformed law is doubled. They also consider that the time in the transitory provision to be able to apply under the reformed law should be much longer, at least 10 years. They believe that the reform of the pension regime of the Judicial Branch flagrantly contravenes the principle of security understood as “the confidence that citizens can have in the observance and respect of situations derived from the application of valid and current norms,” being nothing other than the confidence of every citizen in valid and current legal systems, in such a way that no breaches to this system can occur that dilute their rights. They add that one of the fundamental principles of any democratic constitutional legal system is legal certainty due to the need for citizens to know, at all times, what to expect in their relations with the State and with other private individuals; it must be understood as the confidence that citizens can have in the observance and respect of situations derived from the application of valid and current norms, it is based on the concept of predictability, so that everyone knows in advance the legal consequences of their own behaviors. They add that this parameter of constitutionality that prevents the non-retroactivity of norms on rights of residence (pursuant to ILO Convention 102) in pension regimes, forms part of the legal system and, in this way, means protection and confidence for all citizens who maintain periods of membership in pension regimes. They argue that, in the case of the reform of the Fondo de Jubilaciones y Pensiones del Poder Judicial, this variable is aggravated because it concerns a mandatory fund that sector workers must join, regardless of their will, that is, it is the path through which the State has decided to protect their fundamental right to a dignified and just retirement. They add that, within this framework of ideas, the variations imposed by the draft bill breach that confidence and security of judicial officials in view of the overwhelming difference presented in the reforms, increasing the retirement age, the contribution amount, and the pension calculation. 3) They indicate that, coupled with the above, in their opinion, the application of the new legislation is abusive and arbitrary (another of the purposes of the principle of legal certainty), insofar as it aggravates the socioeconomic conditions of judicial workers at its whim and without regard for their rights and expectations, this because it concerns a mandatory regime which, freed from any control of legal certainty, would allow the variation of conditions in the most indiscriminate ways, regardless of the will of the workers. They point out that this mandatory nature of the regime obliges the State to be much more zealous in the variations made to this type of regime, which, in the specific case, involve the stability and future of more than 16,000 Costa Rican families. They warn that in the case of active officials who are close to retirement and retirees, the situation is extremely burdensome as they have developed a life project, acquiring long-term or medium-term economic commitments and, suddenly, relying on that legal certainty, they see their conditions abruptly modified with severe impacts on their property sphere, which, in the case of retired persons, is increased by anguish, frustration, and impotence at being able to do something about it, at the time of their lives when they should be calm and secure with their retirement, after a lifetime of dedication and work for the institution. They warn that the Constitutional Chamber itself has recognized the right to retirement as a fundamental right integrated within the right to social security: “(…) The Chamber has repeatedly indicated that this right presupposes that public authorities will maintain a public social security regime for all citizens at the highest level, so that it guarantees assistance and provides sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory character. The objective scope assumes the principle of generality, as it protects situations of need, not to the extent that they have been foreseen and insured beforehand, but rather as they actually occur. In addition, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of automatic protection, which translates into adequate and immediate protection regarding sickness, disability, old age, and death (…). Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity” (see judgment number 3483-2003 of 2:05 p.m. on May 2, 2003). 4) They argue that the Constitutional Chamber has also pronounced on the importance of clearly establishing various constitutional principles such as solidarity, the relative intangibility of property, proportionality, and reasonableness. They claim that the principle of solidarity is seriously affected by the challenged Law since it varies the circumstances for a specific sector of the population —that affected by the Law in its entirety— with a reform that is not progressive but rather disruptive, generating poverty as well as property impairment. They argue that the Chamber is emphatic in recognizing the constitutional and fundamental right to retirement in favor of every worker, which belongs to and must be recognized for every human being, under conditions of equality and without any discrimination (judgment number 1997-000184 of 9:42 a.m. on January 10, 1997) and has also stated that “the right to retirement cannot be unreasonably or disproportionately limited, conditioned, or suppressed, regardless of whether due to circumstances prior to or subsequent to its acquisition, consolidation, recognition, or effective enjoyment. In this sense, it is necessary to observe that this right ceases to be a mere expectation and is acquired from the moment one enters the retirement regime, at least as a general right of belonging to it, and from the instant the beneficiary finds themselves in the factual conditions foreseen to receive the benefit, as a right to a current benefit, without it being necessary that they have claimed it, much less that recognition has been declared or that they have begun to receive it. (…)” (see judgment 1147-90 of 4:00 p.m. on September 21, 1990).

They consider that, thus, the right to a pension as a human right, under the conditions that pensioners have been enjoying, cannot be modified because it has become an acquired right; but additionally, the reform should have been carried out in a reasoned, proportional manner and not in a disruptive, abrupt, disproportional, and abusive way against the rights of judicial officials and pensioners of the regime. 5) They add that the Law they request be declared unconstitutional, in their opinion, is also violative of the principles of reasonableness and proportionality because, first, it reduces the salary that will be used to establish the pension amount (increases the age and time of service) and, once the pension amount is established, all deductions and special contributions are applied to that amount and not to the gross salary used for the pension calculation, with these reaching up to 45% of the gross pension amount, which makes these deductions and special contributions unreasonable and absolutely disproportionate, contradicting the human rights and international law treaties signed by Costa Rica. They acknowledge that the principle of mutability of the legal system exists, but this must be progressive, proportional, and reasonable, regarding which the Chamber has stated “(…) that no one has a ‘right to the immutability of the legal system,’ that is, that the rules never change. Therefore, the constitutional precept does not consist of the rule that connects the fact with the effect, once born into legal life, being unable to be modified or even suppressed by a subsequent norm; what it means is that -as explained- if the conditioning assumption has occurred, a legal reform that changes or eliminates the rule cannot have the virtue of preventing the conditioned effect that is expected under the rule of the prior norm from arising. This is so because, it was said, what is relevant is that the state of affairs enjoyed by the person was already defined in terms of its elements and its effects, even if these are still being produced or have not even begun to be produced. In this way, what the person has a right to is the consequence, not the rule” (see judgment number 2765-97 of 3:03 p.m. on May 20, 1997). 6) They state that, in their opinion, the reform is unconstitutional in its articles 224, 224 bis, 236, and 236 bis because they modify consolidated situations of active officials and pensioners of the Judicial Branch, who see their rights diminished in an abrupt manner through a disruptive, disproportionate, and unreasonable reform, generating a worsening in the calculation of the base salaries to determine their pension, increases the time of service, the retirement age, and the amounts of deductions and special contributions above any other tax burden in the Costa Rican legal system, also calculating the maximum limit of deductions at 55% of the gross pension and not of the gross salaries used as the basis for the pension calculation. They insist that the reform is disproportionate, unreasonable, abrupt, and that it places their members in a situation of open patrimonial detriment, affecting the continuity of life projects, the dignity of the worker, and legal certainty. 7) They add that Article 40 of the Political Constitution contains the principle of non-confiscation which, in tax matters, is where it has achieved its greatest development, and which constitutes a limit on the exercise of tax power, linked to the principles of ability to pay and progressivity, just as it represents a mechanism for protecting the right to private property. They state that, in the specific case, the draft of legislative file No. 19.922 has confiscatory content regarding the assets of retired judicial servants and those who will retire. They point out that the reform imposes confiscatory conditions regarding the calculation of the pension, since it will no longer be 100% of the salaries earned in the last 24 months, but rather becomes 82% of the last 240 salaries; that is, a calculation difference of 18 years and a percentage difference of 18%, given that the result of that residue must have a contribution increased by 2% applied, plus the legal charges for income tax, pension fund (because contributions continue), and CCSS, leaving a net amount below 53% of the calculation base. They consider that this variation is confiscatory and contrary to the Constitution since it subjects active officials and pensioners of the Judicial Branch to a confiscation penalty, expressly prohibited by the cited constitutional Article 40. They point out that the measures proposed by the reform bring about a reduction in the pension conditions of judicial workers of nearly 50% of their right. They indicate that the reform, as embodied in the challenged Law, violates constitutional Article 40, imposes a confiscatory penalty, especially on those already retired from the Judicial Branch although also on active ones, which is also harmful to the principle of equality and the ability to pay, asking that it be declared unconstitutional. 8) In addition to what has been said so far, they consider that Transitory Provision VI of the challenged Law is also unconstitutional, deeming it harmful to the principles of equality, reasonableness, and proportionality. They recall that, according to that Transitory Provision, judicial servants who meet the requirements to acquire the right to a pension as established in the text of Title IX of Law 7333 of May 5, 1993, within the 18 months following the enactment of that Law 9544, may retire under the provisions established in the prior Law 7333. They argue that, in Costa Rica, for the analysis of the right to a pension, it is essential to understand and size up what has been done with ILO Convention 102, which has been widely discussed in the country and in the Constitutional Chamber. In this regard, they state that there are 3 rulings from the Chamber that must be mentioned: 5261-95 of 3:27 p.m. on September 26, 1995; 6842-99 of 8:45 a.m. on September 3, 1999, and 2000-000673 of 9:48 a.m. on January 25, 2000, which, together with opinions from the Attorney General's Office (Procuraduría General de la República), revolve around the concept of residence established in Convention 102 in numeral 29 regarding how the concept of residence is interpreted; a concept that, initially, was integrated progressively and respectfully of workers' rights, such that residence was understood as a period that allows maintaining a worker's conditions in a social security regime, given that, once that period is exceeded, any variations that occur would not be applicable. They argue that this progressive criterion, respectful of human rights and aware of the principle of reasonableness and proportionality, allowed many reforms to have to respect such periods or stays and that they could not be violated, as is the case of Law 7531 referring to the teachers' pension regime. They add that, despite this circumstance, the Constitutional Chamber clarified its criterion in the year 2000 and did so by indicating that the term “residence” refers to the general provisions of the same treaty in which it refers to residence as established in numeral b: “the term residence means habitual residence in the territory of the Member and the term resident designates the person who habitually resides in the territory of the Member” (highlights are from the action memorial). They point out that this approach by the Constitutional Chamber established that belonging to a regime for a period of 20 years did not have supra-constitutional protection in the treaty, but rather it was a concept intended for territorial location. They indicate that some current of Costa Rican constitutional thought has sought to impose on the Chamber the obligation to reason the differences in criterion that this principle could cause, since Article 29 of ILO Convention 102 had been interpreted in a progressive and protectionist manner until the year 1999, and in 2000 there was a variation in criterion that eliminated the protection of a stay of more than 20 years in pension regimes. They add that ILO Convention 102 seeks the protection of workers as contributors to social security schemes -for example, pension funds-; protection that is sized according to a series of conditions for each worker to adjust their rights against the State, and even against other workers, in the most rational and proportional manner, such that there are periods and terms that differentiate between different types of permanence and stay in regimes. They deem it necessary to cite this article:

“Article 29 1. 1. The benefit mentioned in Article 28 shall be guaranteed, in the covered contingency, at least:

(a) to protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period that may consist of thirty years of contribution or employment, or twenty years of residence; (…)” They argue that numeral 29.1.a) guarantees the benefit (or pension) when 30 years or 20 years of residence have been completed; however, they question what should be understood by 20 years of residence and, above all, how does this impact the guarantee for the worker benefited by this provision? On this matter, they argue that what this term establishes is a reasonable period of protection for the worker and that differentiates them from others, by virtue of their permanence in a site, place, or territory (using the same terminology of the convention) that allows them to have their benefit (pension) guaranteed. They indicate that, on this matter, they propose to the Chamber that, in light of the non-binding nature of its rulings, the content of the term resident be analyzed in detail, in a progressive, reasonable, and proportional manner, and how, upon understanding the temporal sizing established by this norm, a protection due to belonging, link, or stay can be discovered that should not be overlooked; otherwise, a foreigner residing for 20 years could see their benefit guaranteed in a pension regime due to their “residence” for 20 years in the country, unlike a national in the same condition. They consider that this odious difference is not sought by the convention; on the contrary, what it establishes is a parameter of non-retroactivity aware that 2 decades imply a link to the system distinct from any other. They add that, should the Constitutional Chamber uphold its positions regarding the term residence and the way to interpret it, a second factor of unconstitutionality of Transitory Provision VI must be reasoned, which would be due to breaching the principle of reasonableness and proportionality. 9) They consider it necessary to refer to the principle of constitutional supremacy which, for many, is an expression of Constitutional Power over ordinary Law, in such a way that the Constitution as a Super Law is superior to the entire ordinary legal system, given that its nature and content can only be varied by a complex procedure called special aggravated procedure. They argue that, within this principle, lies reasonableness, as a sub-principle, whose purpose will be a parameter for evaluating legal acts and its existence must be oriented towards respecting the values expressed in the Constitution. On this matter, they recall that the Chamber has pointed out that the principle of constitutional supremacy “imposes the preceptive observance of the principle of reasonableness and proportionality, under which the provisions issued by the Legislator must be examined” (see judgment 1749-2001 of 2:33 p.m. on March 7, 2001). They argue that, in this matter, said principle requires that norms have the purpose of preventing the so-called “conflict or opposition of interests” to ensure the impartiality of Administration servants; likewise, the means used by the State to avoid the aforementioned conflict must not place the recipient in a situation that nullifies the enjoyment of their fundamental rights. They affirm that, thus, laws must be instruments or means that are adequate (reasonable) for the purposes established in the Constitution; the need for any act to conform to the constitutional meaning is what allows speaking of the principle of reasonableness derived from the principle of supremacy of the Constitution, whereby when the jurist locates a norm that is not in accordance with constitutional principles, it is clear that they must make a judgment on its reasonableness in order to determine its irregularity or not with the Constitution according to the demands of the principle of constitutional supremacy. They indicate that reasonableness is determined to avoid those abusive acts of the State that contravene the principles established in the Constitution; thus, constitutional supremacy becomes a guarantor of the Political Constitution, not only as a set of norms of higher hierarchy, but as an order of principles that reflects the social feeling of a specific people. They point out that, based on the fact that the principle of reasonableness has constitutional rank and cannot be exempt from analysis in every State decision or law formation, it must be understood that the provision of Transitory Provision VI flagrantly, directly, and grossly attacks said principle, especially regarding the suitability of the measure, and in that sense they affirm that when the measure only seeks to palliate, affecting the rights of a few, it is unsuitable and therefore, disproportionate. 10) They argue that the reform to the Judicial Branch pension regime started from the backdrop of an actuarial report that indicates the non-viability of the regime from an economic perspective; a report that, based on pessimistic returns far from the reality of the fund over the last 10 years -in which it exceeded returns of 3%-, refers to a mathematical reality that, in the logic of the reform, demonstrates a failure of the regime and also negligence in its control. They state that this negligence or carelessness in the creation or administration of an unviable fund has a direct relationship with the State and its intendancies that did not seek to resolve, alert, and take the corresponding measures in time; measures that, in their opinion, in the logic of the reform, are imperative, with this imperativeness being assumed only by the workers, never by the fund administrators or the State, and, therefore, the measure is unsuitable since with different options involving the State, the viability of the fund can be achieved. They deem that the suitability of the measure fails in the reasonableness test when other options can be sought that, balancing their effects, can achieve the same desired result, pointing out that this is the first defect from which the reform and Transitory Provision VI suffer. They add that, furthermore, the measure itself must be analyzed regarding its unsuitability and lack of proportionality in the strict sense. They acknowledge that the issue of pensions has not been peaceful in Costa Rica and also that the legal system responds to realities in which mutability makes it flexible, adaptable, and convenient for regulating life; however, they deem that this principle of mutability of the legal system cannot be blind to the principle of reasonableness and proportionality, given that, in the case of the cited Transitory Provision, they consider there is an odious, unreasonable, and above all disproportionate differentiation between people who have 18 months to acquire their right to a pension and the rest, which means that officials who have one day of work and others who have 28 years, 3 months, and 29 days of working for the institution are enclosed in a single “bubble” of identical legal effects, whereby people in considerably different conditions must assume the reform with the same weight. They add that also considering different types of workers with such dissimilar conditions of permanence in a regime, with differences of up to decades, in the same variable, is also contrary to the principle of equality which has a correlative in the principle of reasonableness. They point out that the relationship between the principle of reasonableness and the principle of equality poses as an essential problem the discernment of a normative decision and how it would allow unequal treatment to be reasonable; a question they consider to be unresolved in Transitory Provision VI because its foundation is inconsistent, or even burdensome, in a disproportionate manner, for a sector of the judicial population, without any graduality that allows applying the regulation in a manner respectful of the stages of permanence in the regime. 11) They consider that these rights must and have to be above the “pro regimen” principle so often spoken of these days, which dehumanizes the reality and purpose of the pension itself. They consider that the pro regimen principle cannot only be understood regarding measures to palliate negligence or deficiencies of its administrators, but also as to how these measures must be borne by the party most responsible for these negligences; on the contrary, the regulation and the transitory provision, in an effort to sustain a regime that overlooks state responsibilities, imposes the burden on a group or generation of workers who must bear conditions that, even among themselves, are so dissimilar that they can be separated by decades. They state that, in the case of Transitory Provision VI, the differentiation it contains is onerous and excessive because the subjects it encompasses are considerably dissimilar in terms of the time belonging to the regime, hence the effects are disproportionate -in the strict sense and contrary to the Constitution-. They consider that the legislator cannot, ignoring the evident failures and negligence of the pension fund, size up the solution on the backs of a single generation of workers and distribute the effects among the related sectors, including the State itself whose objective responsibility neglected the control and regulation of this regime, given that the reform was posed as urgent. They indicate that, in this line of reasoning, the union proposals for the reform maintained the possibility of a staggered transitory provision in a necessary, suitable -understanding suitability in the triad of effects for the State, administration, and workers- and proportional manner. 12) They point out that in addition to what has been said, the measures are even more drastic when complemented by Article 226, which establishes the obligation to work at least the last 20 years in the service of the Judicial Branch, which makes the situation even more onerous for officials who are above the 2 decades. They consider that a staggered transitory provision, applying the reform gradually according to the years of stay in the regime, becomes a modality respectful of constitutional principles, for which they request that Transitory Provision VI of the reform be declared contrary to ILO Convention 102 and the principle of reasonableness in relation to that of equality. They end by requesting that Articles 224, 224 bis, 236, 236 bis, and Transitory Provision VI of the Organic Law of the Judicial Branch, reformed by Law 9544 of May 22, 2018, be declared unconstitutional, as well as that, while this unconstitutionality action is resolved, the entry into force of the challenged law be suspended, as well as any deduction or adjustment in the salaries and pensions of active officials and pensioners of the Judicial Branch that is included in the new regulation.

74.- On June 5, 2018, the Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as Substitute Magistrate José Paulino Hernández and Substitute Magistrate Marta Esquivel Rodríguez, filed a recusal (inhibitoria) considering that they have a direct interest in the outcome of this unconstitutionality action (in the same terms as they did in the main file 18-007819-0007-CO).

75.- By resolution of the Acting Presidency of the Constitutional Chamber -Magistrate Araya García- of 11:25 a.m. on June 5, 2018, the Proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and Substitutes Hernández Gutiérrez and Esquivel Rodríguez were separated from hearing this matter, ordering that the pertinent information be communicated to the Presidency of the Supreme Court of Justice so that they may proceed with their substitution according to Article 6 of the Law of Constitutional Jurisdiction.

76.- By official letter added to the electronic file on June 11, 2018, the Presidency of the Supreme Court of Justice sent the result of drawing # 6155 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez for having recused themselves from hearing this unconstitutionality action. It is reported that the selected Substitute Magistrates are: Anamari Garro Vargas, Ileana Sánchez Navarro, Alicia Salas Torres, Alejandro Delgado Faith, Lucila Monge Pizarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes.

77.- On June 12, 2018, Substitute Magistrate Lucila Monge Pizarro; on the following June 13, Substitute Magistrates Ana María Picado Brenes and Alicia Salas Torres; on the following June 14, Substitute Magistrate Mauricio Chacón Jiménez; on the subsequent June 19, Substitute Magistrate Anamari Garro Vargas; and on the following June 21, Substitute Magistrates Ana María Picado and Lucila Monge Pizarro (who reiterate the request) and Ileana Sánchez Navarro, filed a recusal in this file in the same terms as they did in the main file number 18-007819-0007-CO.

78.- By resolution of 9:36 a.m. on June 28, 2018, the Acting Presidency of the Constitutional Chamber -exercised by Magistrate Delgado Faith-, ordered that Substitute Magistrates Lucila Monge Pizarro, Ana María Picado Brenes, Alicia Salas Torres, Anamari Garro Vargas, and Ileana Sánchez Navarro, and Substitute Magistrate Mauricio Chacón Jiménez be separated, as well as to communicate the pertinent information to the Presidency of the Supreme Court of Justice so that they may proceed with their substitution according to the provisions of Article 6 of the Law of Constitutional Jurisdiction.

79.- By official letter added to the electronic file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of drawing #6227 carried out for the substitution of Substitute Magistrates Anamari Garro Vargas, Ileana Sánchez Navarro, Alicia Salas Torres, Lucila Monge Pizarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes, stating that because the Chamber originally requested 6 substitutes and there are only 3 available, the drawing was conducted with the substitutes available, with Jorge Araya García, Hubert Fernández Argüello, and Rónald Salazar Murillo being selected.

80.- Substitute Magistrates Alicia Salas Torres (who reiterates it), Hubert Fernández Argüello, and Rónald Salazar Murillo filed -on July 4, 2018- a recusal to hear this unconstitutionality action in the same terms as they did in the main file 18-007819-0007-CO.

81.- The Acting Presidency of the Constitutional Chamber exercised by Magistrate Jorge Araya García, by resolution of 1:25 p.m. on July 4, 2018, separated Substitute Magistrates Fernández Argüello and Salazar Murillo from hearing this proceeding.

82.- By resolution of the Acting Presidency of the Constitutional Chamber -Magistrate Jorge Araya- of 2:10 p.m. on July 4, 2018, and based on what was resolved by the President of the Constitutional Chamber -Magistrate Castillo Víquez- at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared enabled to hear this unconstitutionality action, ordering the processing of the file to continue.

83.- Magistrate Fernando Cruz Castro appears through a brief filed on February 12, 2019, to state that in this file and in all others that have been consolidated with the main file number 18-007819-0007-CO, he presented, together with other Magistrates, a recusal request because the reform to the Law of the Pension and Retirement Regime of the Judicial Branch is challenged. He argues that, although said recusal was initially accepted, subsequently, all the Magistrates were enabled based on the principle of the inalienability of competences. He argues that since August 2018, he has held the position of President of the Supreme Court of Justice and therefore considers he has a new reason to request the recusal. He adds that, in other proceedings before this Chamber where he has been the respondent or intervening party in his capacity as President of the Supreme Court of Justice, he has requested the recusal because he has considered it improper for him to act as a judge in a matter where he has been called as a party in said capacity, deeming that, in the files indicated supra, he is facing the same situation because he cannot participate in the voting on those actions due to the fact that, as President of the Court, he will be called to report on the merits since the regulation is related to the Judicial Branch. He argues that, for this reason, he presents this recusal and requests that the case record be sent to the Presidency of the Constitutional Chamber so that it may resolve what is appropriate in accordance with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

84.- By resolution of 1:08 p.m. on February 12, 2019, the President of the Constitutional Chamber -Magistrate Fernando Castillo-, and based on what was resolved at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was separated from hearing this matter, and Substitute Magistrate Marta Eugenia Esquivel Rodríguez was declared enabled to hear this matter, ordering the processing of the file to continue.

85.- Regarding Unconstitutionality Action No. 18-008591-0007-CO. By interlocutory resolution of the Full Chamber number 2019-002485 of 10:02 a.m. on February 13, 2019, it was ordered that unconstitutionality action 18-008591-0007-CO be consolidated with the one that remained as main file number 18-007819-0007-CO, and that it be considered an amplification thereof, due to the evident connection that exists between the objections raised in both proceedings and in order to avoid contradictory resolutions that could affect the rights and interests of the parties involved.

86.- By written brief received at the Secretariat of the Chamber at 11:55 a.m. on June 4, 2018, unconstitutionality action number 18-008591-0007-CO was filed, signed by Damaris Molina González, of legal age, divorced, judicial pensioner, resident of Moravia, with identification number 2-0269-0487, in her capacity as President of the National Association of Pensioners and Retirees of the Judicial Branch (ASOJUPEN); Álvaro Rodríguez Zamora, of legal age, divorced, judicial pensioner, with identity card 1-477-319, resident of Cartago, in his capacity as General Secretary of the Union National Association of Criminalistics and Related Investigators (ANIC); Yesenia Paniagua Gómez, of legal age, single, judicial employee, bearer of identity card 1-845-494, resident of Zapote, in her capacity as President of the Association of Psychology Professionals of the Judicial Branch (APSIPJUD), and Hernán Campos Vargas, of legal age, married, judicial pensioner, identity card 1-519-160, resident of Coronado, in his capacity as General Secretary of the Union of Workers of the Judicial Branch (SITRAJUD); against Articles 224, 224 bis, and 236 bis of Law 9544 published in La Gaceta No. 89 of May 22, 2018, considering them contrary to the Political Constitution as they explain below. They request the suspension of the validity of the challenged Law, as well as that the regulation that was repealed remain in force. They argue that they are legitimized to file this unconstitutionality action under the provisions of Article 75, paragraph 2), as they act in defense of the corporate and collective interests of the members or associates of their represented parties.

They state that the action is of capital importance for protecting the specific rights and interests of the collective they represent, considering that there are serious consequences arising from approving a law that—in their view—infringes aspects of form and substance, contravening Constitutional Law, and directly harming all union members in their professional, labor, and personal interests. They add that the challenged articles abusively and aggressively reduce the pension regime of persons who work in the Judicial Branch, seriously harming—in their view—the pension interests of their members. 1) They state that Articles 224 and 224 bis of Law 9544 establish that, in calculating the retirement amount, the last 240 salaries must be taken into account and that the retirement amount must be 82% of the foregoing calculation. They argue that the Constitutional Chamber has been clear that, to reform a retirement regime, the respective technical studies are required as an interdiction of arbitrariness. They assert that to determine the solvency of the Pension and Retirement Fund of the Judicial Branch, the University of Costa Rica and the Institute for Research in Economic Sciences (hereinafter IICE) were entrusted, as a result of the agreement between the Judicial Branch and the University of Costa Rica R-CONV-005-2016, with conducting a study for that purpose. They state that said agreement established that at least 4 persons would participate in conducting the study, specifying who they would be, and also that in the event of changes to that team, the Judicial Branch counterpart had to be notified; a situation notably absent. They indicate that from the studies issued by the IICE—as the contracted consulting body—it does not follow that using the last 240 reference salaries is required for the fund's sustainability, but rather it recommends only 120, nor does it follow that granting 82% as the percentage of the aforementioned calculation is required, but rather it recommends granting 85%. Regarding official communication IICE-186-2017, they warn that it is a document that: a) is signed exclusively by Mr. José Antonio Cordero Peña, not signed or endorsed by any other person; b) is addressed to Ms. Nery Agüero Montero; c) does not constitute an expansion of the study composed of 6 deliverables conducted by the IICE; d) makes tangential reference to deliverables IICE_3 and IICE_4 and to no other deliverable delivered to the Court according to the agreement with the UCR; e) the IICE deliverables, which are 6, must be viewed, analyzed, and assessed in their entirety to issue an opinion like the one made in IICE_5 and IICE 6. 2) They add that, for the financial sustainability of the fund, the recommendation of the official study resulting from the IICE (6 in total) was that the years of salaries should be 10 years (120 salaries) and not 20 (240 salaries), so they consider that extending those requirements—without necessity or technical justification—violates principles such as proportionality and reasonableness. They indicate that, for the financial sustainability of the fund, the recommendation of the official study resulting from the IICE (6 in total) was that the percentage of the preceding calculation be 85%, so reducing that amount to 82% without necessity or technical justification violates principles such as proportionality and reasonableness. They argue that, within the study conducted by the IICE (6 deliverables in total), errors are made that result in applying a 3% annual real return on the investments of the Judicial Branch Pension and Retirement Fund for the next 100 years, and in that regard: a) no more than 3 actuarial years of the Judicial Branch Pension and Retirement Fund are taken into consideration (2013-2014 and 2015); b) the contracting terms required taking into consideration at least 10 actuarial years of the Judicial Branch Pension and Retirement Fund; c) it establishes a real return of 3% for the next 100 years without considering the projections of the Central Bank of Costa Rica for real returns, which place them between 9% and 10% for the coming years; d) it contains no scientific criterion or basis for applying a real return, only subjective assessments. They state that for the financial sustainability of the fund, the recommendation of the official study resulting from the IICE (6 in total) is that, on the amount exceeding the cap on current pensions and retirements, a 50% reduction be applied; however, again without technical-scientific basis, the Legislature, in Article 236 bis of Law 9544, inexplicably applies smaller reductions, which, according to actuarial criteria, worsens the fund's returns. They argue that the Constitutional Chamber, in judgment number 2017-011714 of 12:00 p.m. on July 26, 2017, determined that to make variations to a pension regime, adequate technical criteria must be available, as the ILO has also maintained. They add that despite this obligation limiting possible discretion because technical criteria are required, the wording of Articles 224 and 224 bis of the challenged Law 9544 lacks technical basis, thus invoking the interdiction of arbitrariness. They state that the foregoing is evidenced by the fact that imposing a retirement of 82% of the calculation resulting from the average of the last 240 salaries (20 years of salaries) lacks a technical study to justify it. They reiterate that, from the recommendations arising from the actuarial study composed of 5 preliminary deliverables and 1 final one—without any mention of any extraordinary deliverable—such a recommendation, under those conditions, does not follow for maintaining the actuarial solvency of the fund. They indicate that the real impact on the fund's reserves of raising the proposed 10 years to 20 has also not been justified, without knowing the necessity of that increase in years, since the study serving as the basis for the deputies, and which was issued by the IICE of the UCR over the 6 deliverables delivered to the Judicial Branch, established a limit for the pension calculation of 10 years of salaries received (last 120 salaries) and not the last 20 years of salaries received (240 salaries). 3) They state that, in this manner, the Legislative Assembly resolved that extension for said calculation in blatant arbitrariness and overreach, thereby harming the fundamental rights to a dignified pension, in addition to constitutional norms, principles, and jurisprudence regarding constitutionality control (absence of technical criteria). They add that in each of the different deliverables submitted, the IICE team that conducted the study and made the final recommendations was composed of "at least" 4 persons, so any "extraordinary" document—such as official communication IICE-186-2017—does not form part of the final deliverable; however, for the final drafting of Articles 224 and 224 bis, the members of the Legislative Branch relied on a document that is not the result of a technical study but rather the individual position of one person, making it improper to consider a communication—number IICE-186-2017—as a technical study, it being a report that should not be considered the final result, but only a step toward the final deliverable. They assert that no reasoning, argument, or objective analysis can be made if only deliverables IICE 3 and IICE 4 are taken into consideration, as the entire contracted study must be viewed and analyzed from the perspective offered by IICE 6. They state that communication IICE-186-2017 makes tangential reference to deliverables IICE_3 and IICE_4, even indicating that those studies demonstrated adequate fund solvency. They indicate that if an objective analysis cannot be made from only 2 deliverables of a final whole, and the fund's solvency is demonstrated with the calculation of 120 salaries, they do not understand why the Legislative Assembly raises it to 240 last salaries without technical support. They add that in the table contained in the deliverable called IICE_6, in what is called the "optimistic economic scenario," a real return of 4% is presented, and in that scenario, a surplus of 0.43 trillion is produced. They indicate that as this issue has no technical support, it cannot be regulated lightly or freely, and doing so vitiates Law 9544 with unconstitutionality under the constitutional principle of interdiction of arbitrariness. They state that the illegitimate basis used for challenged Article 224 to establish a retirement or pension of 82% of the amount resulting from the average of the last 240 salaries (20 years of salaries), was a document generated from a query to one particular person and not to the IICE team conducted by the Special Commission responsible for issuing an opinion on the bill from which Law 9544 arises; a document consisting of Official Communication IICE-186-2017 of August 18, 2017, and signed exclusively by Mr. José Antonio Cordero Peña, which should not and cannot be considered an acceptable technical instrument for extending from 120 to 240 years of salaries to switch the calculation from 85% to 82%. They state that this document cannot be equated with the technical study conducted by the team that was contracted by the Judicial Branch, nor is it even an expansion of that study. They assert that no reference is made to the validity that a communication prepared and signed only by one person could have, someone who is not even in the minimum group of persons who must participate in preparing the contracted study. They warn that this communication is a personal opinion of Mr. José Antonio Cordero Peña, directed to Ms. Nery Agüero Montero, meaning it was not even addressed to the Full Court or as a copy. They argue that, consequently, said document cannot and should not be considered an expansion of any technical study capable of providing support for the challenged regulation. They add that the signatory of that communication did not indicate which members of the IICE team supposedly support the position set forth therein; nor was it signed by those persons, meaning the document lacks objective aspects that could give it sufficient strength to contradict deliverables IICE 3, 4, and especially 6, regarding the percentage to be received as retirement (85%) of the calculation of the last 120 salaries (10 years) and that, thus, the cited retirement fund was already solvent. They add that, even if one wishes to assimilate communication IICE-186-2017 of August 18, 2017, as an expansion of those studies, or as a valid new study, in reality it is not and does not constitute a scientific, technical, and objective criterion to justify that the Legislative Branch, without a real technical study, reduced by 3% the amount to be received as a pension or retirement, and increased by 10 years the calculation of the last salaries for computing that final pension percentage. They indicate that the technical reports presented by the IICE from 1 to 6 demonstrated how, with the calculation of the last 120 salaries or 10 years of salary, that actuarial solvency requirement was met, as well as with 85% of the amount resulting from that calculation for granting the final pension or retirement. They argue that it is contrary to the constitutional principles of proportionality and reasonableness for the Legislative Assembly, without technical justification, to have "aggravated" those requirements arbitrarily, without technical support, but above all without necessity, since the purpose of the reform was fulfilled with 120 last salaries and granting a retirement of 85% of that calculation. They consider it arbitrary and contrary to the principles of reasonableness and proportionality to impose a lower percentage and a higher number of years or salaries received to calculate the final retirement or pension. 4) They state that, in light of the principle of proportionality, it is essential that an objective analysis exist demonstrating that the measures are necessary, that they are technically and scientifically supported as required by the ILO; which is nothing other than determining whether the reform is suitable and necessary as a response to the current and real situation of the actuarial conditions regarding fund sustainability, and thus not constituting a disproportionate burden or imposition for persons working in the Judicial Branch. They argue that, in this sense, the act or reform challenged here must be appropriate for achieving the purposes underlying it (principle of suitability) and that no less burdensome alternative means must exist to achieve the same end; otherwise, one would be facing non-observance of that fundamental principle. They indicate that to the challenges raised supra, the information that the Superior Council can provide regarding the fund's real return during the years 2016, 2017, and what had elapsed in 2018, which exceed 6% real, must be taken into account, thereby further evidencing the arbitrary and unnecessary decision of the Legislative Branch to raise the years for the calculation to 240 and lower the percentage to 82%, which had already been recommended by the UCR's technical study. They consider that the measures adopted in Law 9544 are exaggerated, disproportionate, and unreasonable, which makes the decision unsuitable, disproportionate, and unconstitutional. They state that in the reform contained in Law 9544, there exists a range of alternative means to regulate the matter without causing serious harm to persons who work in the Judicial Branch, such as that the Administrative Board, based on recent and objective technical studies, could vary those aspects. They recall that the Chamber has held that when an alternative means is available and less burdensome, failing to use it will result in the declaration of unconstitutionality of the implemented measure for violating the principle of proportionality in the broad sense, when it is shown that, by resorting to that alternative means, the same levels of effectiveness in achieving the result sought by the more burdensome measure can be achieved; a situation not respected in the challenged regulation. They insist that less burdensome measures could have been adopted because the goal of actuarial sustainability of the fund was guaranteed—in the recommendations of the 6 deliverables issued by the IICE. They consider that this reform violates the principle of proportionality to the detriment of Judicial Branch workers. 5) They recall that the constitutional principle of minimum intervention prevails, according to which the least possible number of restrictions on fundamental rights must be imposed. They add that proportionality results from a comparison between the degree of realization or optimization of the constitutional purpose and the intensity of the "necessary" intervention in the right of the population or a group thereof, as is the case with Judicial Branch workers, such that if this relationship is met, the intervention in the right will have passed the balancing test and will not be unconstitutional. They recall that this proportionality test would also operate to reduce the margins of discretion in limiting the content of fundamental rights, an interdiction of arbitrariness. They consider that reasonableness and proportionality are two principles that are almost fused; thus, the reasonableness test is a proportionality analysis that is directly linked to the superior value "justice." They add that, for the Chamber, reasonableness is a parameter of constitutionality vis-à-vis the law, even vis-à-vis the normative application of a special type resulting from an interpretation using a logical systematic method of the ideology, not only of the Political Constitution, but of the entire legal order. They add that it also requires the suitability of the legal consequence in relation to the purpose pursued (relationship with proportionality): in this case, the reform to the Judicial Branch pension regime as a response to a pressing need regarding its actuarial sustainability (see judgments 3929-95 of 3:24 p.m. on July 18, 1995, 2000-010826 of 2:59 p.m. on December 6, 2000, and 5236-99 of 2:00 p.m. on July 7, 1999, among others). 6) They state that another weak point of the study is why the IICE, for the investigation conducted for the Judicial Branch, established as an average a real return percentage of 3% for the coming years; meanwhile, the School of Mathematics of the same University of Costa Rica, in the actuarial study conducted for the CCSS for the IVM regime, established that average at a percentage of 4% for the next 100 years. They indicate that this is an aspect that has not been determined and is publicly known, so they consider that the Chamber should question that difference as a starting point, and what was the technical support for determining such a low real return? They state that in this regard, real return rates in the country have been above 4%, even reaching 7% in some cases, so they question what the scientific basis is for using 3% as a base for the study in the Judicial Branch? They state that this question has no answer in the report issued, it being of vital importance that it be explained technically and scientifically why that assumption was used, as a one-percentage-point difference in real returns makes the difference between having to apply one or another fund sustainability criterion. They add that, for one study, only the last 7 years were taken into consideration, although for the calculation to be made, it indicates that only information from 2013 to 2015 can be applied, i.e., only 3 years, despite the fact that the UCR. IICE-Judicial Branch agreement determined that the late years (2005 to 2015) had to be taken into account. They add that if the "real" information from 2000 to 2017 is taken, it can be observed that the fund has maintained a real return of more than 4.57%, and therefore it does not seem justifiable, in any way, to use a 3% real return as a base for the next 100 years. They indicate that the real rate shown in Table No. 3 of point 4.2 of IICE_6 is a 4.9% real return; however, right there it concludes that the average annual real return rate on long-term investments in colones expected for the coming years will be in a range of 4% +/-1%, which they state is incorrect because in the report the real return is not 4% but almost 5% real, meaning that the average annual real return rate on long-term investments in colones expected for the coming years will be in a range of 5% +/- 1% or between 4% and 6%, far from the 3% average that was sought to be sold. They recall that disregarding 0.9% represents millions of colones not taken into account for making the calculations, projections, and recommendations being challenged, and which were reflected in Article 224 of Law 9544. They state that in the same IICE_6 study, at the point regarding Summary Compendium #7a, it is noted that in what they call the "optimistic economic scenario," they present a real return of 4% and in that scenario, a surplus of 043 billion over a 100-year term is produced; a situation that allows for making projections less crude than those reflected in Law 9544, such as, for example, replacing the worker contribution by only 1% and not 2%, applying gender criteria so that women can access retirement at a younger age than men, keeping the age at 60 years even if the years worked were 35 but with the possibility of early retirements with less severe penalties than those established in Law 9544, especially since the Administrative Board, following prior technical studies, could vary those ranges as established in paragraph 3 of Article 239 of Law 9455. They add that in point 4.1 of IICE_6 on real returns, it establishes as a parameter the "Sovereign Yield Curve," which, as of May 17, 2016, established that over a 10-year term, that investment exceeds 8% real and not 3%. They state that the "Sovereign Yield Curve" data as of May 23, 2018, established that over a 10-year term, it would produce real return rates of 10%. They indicate that if returns from 2010 to 2014 are eliminated and returns from 2016, 2017, and 2018 as of the time of filing the action are used, one would see how the conclusion reached in the final paragraph of point 4.3 of IICE_6 would vary significantly, even reaching more than 5% annual returns. They state that the challenged regulation also provided that positions created with lower salaries, at the time of retirement, will have their income reduced, as it must never exceed 10 times that new salary. They add that, furthermore, for current retirements and pensions, the reduction on the "new" established cap must be readjusted, meaning that one would undergo a larger reduction. 7) They indicate that all this creates enormous legal uncertainty, but for the purposes of the Judicial Branch Union Front and the petitioners, what is truly important is that, ultimately, Article 236 bis did not respect the results of the indicated actuarial studies, and furthermore, a 50% "solidarity contribution" will also be reduced, that article offering a rather different formula devoid of any technical support. They argue that no explanation or basis is given for why it decreases the solidarity contribution that the highest pensions, or those exceeding the imposed cap, must make. They indicate that the Law should have established a solidarity contribution on the excess over the imposed cap at 50%, as the IICE recommended, not in dribs and drabs as was done in Article 236 bis. They state that by not having done so, the norm referring to the solidarity contribution is vitiated with unconstitutionality, and one of the main goals for the enactment of the law vanishes. They add that they are not opposed to the rest of the regulation contained in Law 9544, and in that regard, they state that the caps imposed on future pensions, as well as the composition of the new Administrative Board, which were aspects of utmost importance for the enactment of this law, would remain intact. They end by stating that the Administrative Board will always retain the possibility of varying the parameters that Articles 224 and 225 of Law 7333 would establish again, provided, of course, that it has the corresponding technical studies, as established in the third paragraph of Article 239 of Law 9544. They reiterate their claims that, in light of the flagrant violations of Constitutional Law, Articles 224, 224 bis, and 236 bis of Law 9544 be declared unconstitutional.

87.- On June 12, 2018, the Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as Substitute Magistrate José Paulino Hernández Gutiérrez and Substitute Magistrate Marta Esquivel Rodríguez, filed a motion to recuse, considering that they have a direct interest in the outcome of this unconstitutionality action (in terms identical to how they did so in main case file 18-007819-0007-CO).

88.- In a resolution of the Presidency of the Constitutional Chamber—Magistrate Araya García—at 8:55 a.m. on June 14, 2018, the Proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and substitute magistrates Hernández Gutiérrez and Esquivel Rodríguez were removed from hearing this matter, ordering that the pertinent communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Constitutional Jurisdiction Law.

89.- Through an official communication added to the electronic case file on June 19, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6195 conducted for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez, for having recused themselves from hearing this unconstitutionality action. It is reported that the selected Substitute Magistrates are: Alicia Salas Torres, Lucila Monge Pizarro, Ileana Sánchez Navarro, Jorge Araya García, Ana María Picado Brenes, Alejandro Delgado Faith, and Mauricio Chacón Jiménez.

90.- On June 20, 2018, Substitute Magistrate Mauricio Chacón Jiménez; on the following June 21, Substitute Magistrates Ana María Picado Brenes, Ileana Sánchez Navarro, and Lucila Monge Pizarro; and on the subsequent June 22, Substitute Magistrate Alicia Salas Torres, filed a motion to recuse in this case file in identical terms to how they did so in main case file 18-007819-0007-CO.

91.- In a resolution at 8:25 a.m. on June 28, 2018, the Presidency of the Constitutional Chamber—Magistrate Araya García—ordered that Substitute Magistrate Mauricio Chacón Jiménez and Substitute Magistrates Ana María Picado Brenes, Ileana Sánchez Navarro, Lucila Monge Pizarro, and Alicia Salas Torres be removed, and that the pertinent communication be sent to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to the provisions of Article 6 of the Constitutional Jurisdiction Law.

92.- Through an official communication added to the electronic case file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6230 conducted for the substitution of Substitute Magistrates Alicia Salas Torres, Lucila Monge Pizarro, Ileana Sánchez Navarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes, stating that because the Chamber had originally requested 5 substitutes and there are only 3 available, the draw was conducted with the substitutes available, with Anamari Garro Vargas, Hubert Fernández Argüello, and Rónald Salazar Murillo being selected.

93.- Substitute Magistrates Hubert Fernández Argüello and Rónald Salazar Murillo filed—on July 4, 2018—and Substitute Magistrate Anamari Garro Vargas—on the following July 9—a motion to recuse from hearing this unconstitutionality action in identical terms to how they did so in main case file 18-007819-0007-CO.

94.- The Presidency of the Constitutional Chamber, held by Magistrate Jorge Araya, in a resolution at 8:50 a.m. on July 10, 2018, removed Substitute Magistrates Fernández and Salazar Murillo, as well as Substitute Magistrate Garro Vargas, from hearing this proceeding, and ordered the case file to be sent to the Presidency of the Supreme Court of Justice for the appropriate actions.

95.- Through a resolution of the Presidency of the Constitutional Chamber—Magistrate Jorge Araya García—at 9:40 a.m. on July 10, 2018, and based on what was resolved by the President of the Constitutional Chamber—Magistrate Castillo Víquez—at 2:40 p.m. on August 3, 2018, in main case file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared eligible to hear this unconstitutionality action, ordering the continuation of the case file proceedings.

96.- Magistrate Fernando Cruz Castro appears through a brief filed on February 12, 2019, to state that in this case file and in all others that have been consolidated into main case file number 18-007819-0007-CO, he, together with other Magistrates, filed a recusal request because the reform to the Judicial Branch Retirement and Pension Regime Law is being challenged. He asserts that, although said recusal was initially accepted, later, all the Magistrates were declared eligible based on the principle of non-waivability of jurisdiction. He argues that since August 2018, he has held the position of President of the Supreme Court of Justice, and for this reason, he considers he has a new reason to request recusal. He adds that in other proceedings before this Chamber where he has been the respondent or intervening party in his capacity as President of the Supreme Court of Justice, he has requested recusal because he has considered it improper for him to act as a judge in a matter where he has been called as a party in said capacity, deeming that in the case files cited supra, the same situation exists because he cannot participate in the voting on those actions because, as President of the Court, he will be called upon to report on the merits since the regulation is related to the Judicial Branch.

He argues that, for this reason, he files this motion to recuse and requests that the case file be sent to the Presidency of the Constitutional Chamber so that it may resolve what is appropriate in accordance with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

97.- By resolution issued at 1:15 p.m. on February 12, 2019, the President of the Constitutional Chamber —Magistrate Fernando Castillo—, based on what was resolved at 2:40 p.m. on August 3, 2018, in principal case file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was separated from hearing this matter and Substitute Magistrate Marta Eugenia Esquivel Rodríguez was declared qualified to hear this matter, ordering that the processing of the case file continue.

98.- Regarding Unconstitutionality Action No. 18-009275-0007-CO. In an interlocutory resolution of the Full Chamber, number 2019-002486, issued at 10:03 a.m. on February 13, 2019, it was ordered that this unconstitutionality action number 18-009275-0007-CO be consolidated with the one designated as principal case file number 18-007819-0007-CO, and that it be considered an expansion thereof, due to the evident connection existing between the objections raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved.

99.- By a written submission received at the Secretariat of the Chamber at 11:14 a.m. on June 15, 2018, unconstitutionality action number 18-009275-0007-CO is filed, subscribed by Jorge Luis Morales García, of legal age, married, judicial officer, resident of Alajuela, holder of identity card number 2-399-222, in his capacity as General Secretary of the Judiciary Union (Sindicato de la Judicatura, SINDIJUD); Yesenia Paniagua Gómez, of legal age, single, judicial employee, holder of identity card number 1-845-494, resident of Zapote, in her capacity as President of the Association of Psychology Professionals of the Judicial Branch (Asociación de Profesionales en Psicología del Poder Judicial, APSIPJUD); Ana Luisa Meseguer Monge, of legal age, married, judicial officer, holder of identity card number 9-0030-0193, resident of San José, as President of the Costa Rican Association of Women Judges (Asociación Costarricense de Juezas); Hernán Campos Vargas, of legal age, married, retired judicial employee, holder of identity card No. 1-519-160, resident of Coronado, in his capacity as General Secretary of the Union of Workers of the Judicial Branch (Sindicato de Trabajadores y Trabajadoras del Poder Judicial, SITRAJUD); and Carlos Álvarez Casasola, of legal age, married for the third time, retired judicial employee, with identity card 1-396-124, resident of Turrialba, in his capacity as President of the Loan and Discount Fund for Employees of the Judicial Branch (Caja de Préstamos y Descuentos de los Empleados del Poder Judicial, CAPREDE); against articles 224, 224 bis, 226 and Transitory Provision VI, all of Law 9544, published in La Gaceta number 89 of May 22, 2018, for being contrary to constitutional, supra-constitutional, and conventional norms and principles, because in its legislative process the defect of lacking the technical support required for reforms to retirement and pension systems is present, as well as for violating the constitutional principles of Proportionality and Reasonableness, Prohibition of Arbitrariness, Legal Certainty, and the provisions of Conventions 102, 118, 128, and 157 of the International Labour Organization. They argue that the standing they have to file this unconstitutionality action derives from Article 75, paragraph 2) of the Law of Constitutional Jurisdiction, given that they appear in defense of the interests of their members, considering that the challenged articles abusively and aggressively reduce the retirement and pension system for persons working in the Judicial Branch, seriously harming the retirement and pension interests of their associates and, therefore, in their view, the Associations and Unions they represent have standing to initiate this unconstitutionality action in defense of the legitimate rights and interests of their associates and affiliates. 1) They argue that Law 9544, in its articles 224, 224 bis, and 226, establishes that: a) to retire under the Judicial Branch retirement and pension system, one must have served at least 20 years in that institution; conversely, anyone who does not meet that requirement cannot retire; b) those who are survivors of a person who worked less than 20 years in the Judicial Branch, regardless of years of service in other public institutions, have no right to any pension; c) one must meet the requirement of being 65 years of age and having 35 years of service to qualify for a full retirement or pension. 2) They add that Law 9544, in its Transitory Provision VI, establishes the acquired right to retire under the terms of Law 7333 of May 5, 1993, for persons who meet the requirements of that law within 18 months following the enactment of Law 9544; however, they point out that there is no technical-scientific criterion from the standpoint of the actuarial sustainability of the fund that justifies a specific timeframe for recognizing that acquired right, neither 18 months, nor 20 or 25 years of service so that this group of working people can retire under the system established in Law 7333. They add that there is also no technical-scientific criterion —from the standpoint of the actuarial sustainability of the fund— that determines what the consequences would be, if any, in the case of a transitory provision so that persons with 20 or 25 years of contributing to the fund can retire under the system established in Law 7333. 3) They point out that Law 9544 is contradictory, specifically what is established in Article 224 with Transitory Provision VI, since the former determines the admissibility (to the detriment of the working person with less than 20 years of service in the Judicial Branch) of acquired rights after 20 years of service, whereas Transitory Provision VI establishes that this acquired right will only apply to persons with 28 years and 6 months of service at the time Law 9544 was enacted (again to the detriment of the working person, this time with 20 or more years of service in the Judicial Branch), all without technical-scientific support or foundation. 4) They state that Article 224 of Law 9544 also fails to respect mandatory gender criteria. 5) They indicate that official communication IICE-186-2017 was subscribed exclusively by Mr. José Antonio Cordero Peña; it is not subscribed or endorsed by any other person; this communication, furthermore, is addressed to Ms. Nery Agüero Montero and does not constitute an expansion of the study composed of 6 products carried out by the IICE. They argue that this communication makes tangential reference to products IICE_3 and IICE_4 and to no other product delivered to the Court according to the agreement with the UCR; the IICE products —which are 6— must be seen, analyzed, and assessed in their entirety to issue an opinion like the one given in IICE_5 and MCE 6. 6) They consider that Law 9544 clearly disregards some pre-established obligations in Conventions 102 and 128 of the International Labour Organization; conventions duly signed by Costa Rica to specifically regulate aspects related to the Human Right to retirement, to a fair pension, and in dignified conditions. They state that Article 25 of ILO Convention 102 establishes:

"Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part" For its part, they argue that Convention 128, in its Article 14, establishes:

"Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part" They state that this obligation for the Costa Rican State also finds its basis in Articles 1, 2, and 26 of the American Convention on Human Rights, as well as Article 9 of the Additional Protocol to the American Convention on Economic, Social, and Cultural Rights, "Protocol of San Salvador"; all in relation to the provisions of Articles 7, 50, and 73 of the Political Constitution. They argue that the Chamber has analyzed the issue of the fundamental right to retirement in Vote number 1147-90 issued at 4:00 p.m. on September 21, 1990, which they consider a true advancement in a Social State of Law:

"(...) the Chamber declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution (...)" (the highlights are from the action brief).

They indicate that the right to retirement not only constitutes a fundamental right provided for in the Political Constitution, but that, in accordance with the erga omnes principle applied to constitutional jurisprudence, according to Article 13 of the Law of Constitutional Jurisdiction, we are faced with a Human Right, which carries greater implications because, in strict adherence to the principle of progressiveness in the recognition of human rights, the moment the Constitutional Chamber recognized the right to retirement as a Human Right, no opinion can be issued in opposition to this recognition, all without setting aside the supra-constitutional hierarchy of Human Rights. They add that the reasoning of the Constitutional Chamber in the aforementioned Vote 1147-90 is not limited to the recognition of the worker's Human Right to retirement and, in that sense, that judgment additionally indicated:

"That conclusion (of the right to retirement as a Human Right) is confirmed in a series of international human rights principles and norms, which have not only a rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself under Article 48 thereof, (amended by Law No. 7128 of August 18, 1989); among these rights, specifically, those recognized in Articles 25, 28, 29, and 30— thus correcting those invoked in the action— of Convention No. 102 of the ILO on Social Security, which establish: " Article 25: Each Member for which this Part of the Convention is in force shall secure to the persons protected the provision of old-age benefit, in accordance with the following Articles of this Part" " Article 28: The benefit shall be a periodical payment calculated as follows..." " Article 29: 1. The benefit specified in Article 28 shall be secured, in the contingency covered, at least: (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence..." They indicate that from the cited excerpt it is evident that the Constitutional Chamber recognized the content of Article 29 of ILO Convention 102, not only as a supra-legal norm (by virtue of being an international instrument) but also as an article that is subject to direct constitutional protection, equating it with a fundamental right recognized in our Magna Carta. They argue that, based on this reasoning, the Constitutional Chamber directly points out that there exists a fundamental right that can be derived from Articles 25, 28, 29, and 30 of ILO Convention 102; an interpretation taken together with the provisions of Article 73 of the Political Constitution, the sense of which, from its location in the chapter on "social guarantees" of the Constitution and from the international instruments alluded to, clearly emerges, as does the Constituent Assembly's intention to enshrine it as a right of the working person. They summarize by saying that from the Constitutional and Supra-Constitutional regulations indicated up to this point, it follows that the State must ensure that every person and, in the specific case, working persons, and specifically those of the Judicial Branch, receive a fair pension or retirement, given that even ILO Conventions 102 and 128 present scenarios under which a reduced or partial pension must be granted, but it must be granted. They state that both constitutional jurisprudence and ILO Conventions 102 and 128 determine the right to retirement as an inalienable and imprescriptible human right by that very nature of every human being; however, they argue that Articles 224 and 224 bis of Law 9544 establish limitations, with the possibility even of rendering that right to a dignified and fair retirement nugatory. They state that Law 9544 establishes in its Articles 224, 224 bis, and 226, paragraph 1), that judicial civil servants with 20 or more years of service in the Judicial Branch may avail themselves of a full or partial pension, as the case may be; conversely, workers who work less than 20 years for the Judicial Branch, regardless of how many years they have worked for other institutions, nor the age they are, cannot exercise their right to a fair and dignified pension (emphasis from the action brief). 7) They argue that, as an aggravating factor to the foregoing, this norm also ends up harming potential future beneficiaries, such as those who acquire the right to a survivor's pension (spouses, partners, dependent parents) or orphan's pension, disabled or incapacitated persons who depend on the deceased person, because persons in the indicated conditions who depend on a deceased person who was a Judicial Branch civil servant, regardless of the number of years the working person worked in other public institutions but with less than 20 years of service in the Judicial Branch, would be left completely unprotected. They indicate that this is inconceivable within the Social State of Law, contrary to constitutional Articles 50 and 51 as well as the regulations and jurisprudence issued on the matter. They consider that merely creating the possibility that a person who has served in the Judicial Branch less than 20 years is left without the expectation of retirement or pension —as the case may be— is unconstitutional. 8) They state that, from none of the 6 products delivered by the IICE, is the need and even less the technical-scientific justification discernible for increasing or raising the 5 years required by Article 231 of the Organic Law of the Judicial Branch, or the 10 years established in Articles 226 and 230 thereof (repealed by the challenged Law 9544) of service in the Judicial Branch, to obtain retirement, to the 20 years required by Articles 224, 224 bis, and 226 of Law 9544. They add that, for the modification of pension systems in Costa Rica, the Chamber has established the obligation to have technical criteria and, in that sense, in judgment number 2017-011714 issued at 12:00 p.m. on July 26, 2017, it determined that this is a sine qua non requirement to substantiate any reform, as has also been upheld by the International Labour Organization. They indicate that, despite that obligation to have technical criteria, the drafting of Articles 224, 224 bis, and 226 of Law 9544 published in La Gaceta number 89 of May 22, 2018, lacks a technical basis for disproportionately, unjustifiably, and arbitrarily increasing the years of service (20) in order to be able to qualify for retirement or a pension, thus calling for a prohibition of arbitrariness. In their capacity as plaintiffs, they pose the question: What is the technical-scientific basis, from the standpoint of actuarial sustainability, that supports this disproportionate increase?; and they point out that this reform, unjustified from a technical-scientific point of view, ends up rendering nugatory the Human Right to Retirement of the working persons or those directly affected, but it also renders nugatory that right for future beneficiaries, such as those who acquire the right to a survivor's pension (spouses, partners, dependent parents) or orphan's pension, disabled or incapacitated persons who depend on the deceased person, because these persons, if the civil servant does not complete 20 years of service at the time of death, regardless of whether they had served 30, 35, or 40 years in another public sector institution, would be left unprotected, uncovered in that contingency. They argue that, for its part, the repealed Article 231 was considerably more benign on this point because it only required 5 years of service in the Judicial Branch; in this way, to modify those parameters, a technical-scientific study was required, undoubtedly and constitutionally, which is lacking, and they ask: What is the benefit or detriment from the standpoint of actuarial sustainability for the fund, but above all, how will this norm affect the judicial population?, for which there is also no technical study. They add that, even if there were a technical criterion, it is absolutely invalid for an infra-constitutional norm to render nugatory the right to a fair retirement or pension, as Articles 224, 224 bis, and 226 of Law 9544 do, hence the unconstitutionality they consider them to contain. 9) They add that, furthermore, the articles challenged as unconstitutional, with that aggravating factor of requiring 20 years of minimum service in the Judicial Branch for retirement or pension, contain another unthinkable possibility, which is that of extending the totality of years of service unjustifiably. They state that, according to what has been set forth, a person may have served in other institutions to accumulate more than 35 years of continuous work, but with fewer than 20 in the Judicial Branch, and still will not be able to retire, despite having met the requirement for early retirement, according to Article 224 bis of Law 9544. They add that, in the case of a person who began working in the Judicial Branch at age 50, they must wait until age 70 to be able to retire, and, even worse, if they died before completing those years, their survivors would receive no pension; if they began working in the Judicial Branch at age 50 and did not meet the requirement to retire within 18 months following the publication of Law 9544, they must wait until reaching 70 years of age to retire. They consider that, depending on the positions held, retiring at 70 years of age or older might not be a problem, but in the case of civil servants with considerably heavier duties, such as an administrative police officer who enters the Judicial Investigation Agency (Organismo de Investigación Judicial) on their own merits at a mature age, they will definitely be very harmed by this impossibility of retiring until after working 20 years within the Judicial Branch. They estimate that the drafting of Articles 224, 224 bis, and 226 of Law 9544, by imposing 20 years of mandatory service in the Judicial Branch as a requirement for any retirement or pension, all without technical-scientific criteria, creates flagrant violations of the Human Right to retirement and pension. 10) They consider that, furthermore, it creates other possible effects that are equally unconstitutional, mainly due to that lack of technical-scientific references or foundations, and that is that it could result in the need to work beyond the age established by ILO Conventions 102 and 128 regarding the age limit for retirement, which they determine as 65 years. 11) They add that another right that is prevented from being realized is one granted by Article 224 bis, which is contradictory in itself, as it indicates that a person who works in the Judicial Branch can retire early if they meet 35 years of service (it does not indicate that it must be in the Judicial Branch); however, that same article again says that, for this purpose, they must have worked at least 20 years in the Judicial Branch. On this matter, they state that, as things stand, a person who enters the public sector at age 20 and obtains a position in the Judicial Branch at age 40 cannot advance their retirement after 35 years of service as Article 224 bis indicates, because that same article paradoxically prevents the exercise of the right due to not having 20 years of service in the Judicial Branch, preventing that possibility despite having already contributed more than the 30 years established by ILO Conventions 102 and 128, in addition to having met one of the requirements established in Article 224 bis, which is having 35 years as an active worker for the public service. They argue that, in this way, without having technical criteria that justify the atrocity set forth, without offering much analysis by the Legislature, Articles 224, 224 bis, and 226 of Law 9544, by making it impossible to exercise the fundamental, human right to a fair and dignified retirement and pension for persons due to having worked less than 20 years in the Judicial Branch, come to contradict International Human Rights Law, as well as the Political Constitution itself, its ideology, and its nature. They argue that, having set forth the unconstitutionality —which in their view exists— of Articles 224, 224 bis, and 226 of Law 9544 for preventing a person with fewer than 20 years of working for the Judicial Branch from retiring, they estimate that there are other defects of unconstitutionality in the drafting of these two articles 224 and 224 bis of Law 9544, and that is that ILO Conventions 102 and 128 come to establish the State's obligation to guarantee that the working person can obtain the benefit of a fair and dignified retirement or pension having contributed to a given system for only 10 or 15 years (the retirement would evidently be partial). They state that Articles 28 and 29 of ILO Convention 102 establish, in relevant part, in relation to the right to a fair and dignified retirement, the following:

"Article 28. The benefit shall be a periodical payment calculated as follows:

(a) where the classes of employees or classes of the economically active population are protected, in conformity with the provisions of Article 65 or of Article 66; (...)” “Article 29.

1. The benefit specified in Article 28 shall be secured, in the contingency covered, at least:

(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence; 2. Where the granting of the benefit specified in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least:

(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of 15 years of contribution or employment; or (b) where all economically active persons are in principle protected, to a person protected who has completed a prescribed qualifying period of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid.

3. The provisions of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage ten points lower than that indicated in the Schedule appended to that Part for the standard beneficiary is secured at least to a person who has completed, in accordance with prescribed rules, ten years of contribution or employment, or five years of residence.

4. A proportionate reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period corresponding to the reduced percentage exceeds ten years of contribution or employment but is less than 30 years of contribution or employment. Where such qualifying period exceeds 15 years, a reduced benefit shall be payable in conformity with paragraph 2 of this Article.

5. Where the granting of the benefit specified in paragraphs 1, 3 or 4 of this Article is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured, under prescribed conditions, to a person protected who, solely by reason of the advanced age he has reached when the provisions giving effect to this Part of the Convention are put into force, has not been able to satisfy the conditions prescribed in accordance with paragraph 2 of this Article, unless a benefit in conformity with the provisions of paragraphs 1, 3 or 4 of this Article is secured to such persons at an age higher than the normal age" (the highlights are from the brief).

They state that, exactly in the same sense, there is the content of Article 18 of Convention 128, also of the ILO, and recall that ILO Conventions 102 and 128 establish that a qualifying period must be understood as a contribution period. They add that, as can be seen, "eliminating" or rendering nugatory the fundamental right to a dignified retirement for persons with fewer than 20 years of serving the Judicial Branch (even if they have more than 35 years of public service, for example), now speaking not of a full retirement or pension but a partial one in the case of having contributed 10 or 15 years in a given system, comes to violate Human Rights, given that in those cases, Law 9544 orders that persons with fewer than 20 years of serving in the Judicial Branch cannot access a retirement or their survivors a pension, this in opposition to what is established in ILO Conventions 102 and 128 signed by the country regarding the obligation to ensure that every working person receives a fair retirement or pension, but also regarding the possibility that, with fewer contributions (15 or 10), they may receive a partial retirement. They indicate that, to further evidence this violation of International Conventions, reference is made to a contribution period of 10 or 15 years, but they call attention to the fact that it is not stated, nor can it be interpreted to state, that these 10 or 15 years are of contribution to a specific system, but rather that whoever reaches age 65, if they have contributed at least ten years to the Judicial Branch Pension and Retirement System, must be guaranteed a benefit (pension) that is evidently reduced; however, from the drafting of Articles 224 and 224 bis, this is not possible, estimating that the foregoing once again —in their view— constitutes a flagrant violation of Constitutional Law. They argue that the drafting and interpretation of these ILO Conventions, Articles 29 of 102 and 18 of 128, is not simple; however, they determine that whoever has completed 30 years of contributing or working acquires the right to retire, and whoever has worked for 20 years in a given territory acquires the right to retire under the rules of that territory, and if those 30 years are not reached but 15 or 10 years of contributing are, a reduced (early) retirement (benefit) must be calculated. 12) They argue that, in accordance with the Conventionality Control that is mandatory in the Costa Rican legal system, the norms contained in Articles 224, 224 bis, and 226 of Law 9544 are contrary to the International Human Rights System. They indicate that they realize that a person, in order to retire in the Judicial Branch, will have to work considerably more than 30 years, with a person who starts working at age 18 potentially having to work 47 years to receive a retirement without reductions for early retirement; even worse, if the person worked in another state institution from age 18 but joined the Judicial Branch at age 40, they will not be able to advance their retirement until they have served 20 years in the Judicial Branch, that is, at 44 years of service, and not to mention the problem for their family, should that person die before completing those 20 years of service in the Judicial Branch.

They consider that all these situations render the Human Right to retirement nugatory and, in that sense, they estimate that Law 9544 violates Human Rights enshrined in International Instruments because ILO Convention 102, in its Article 26, paragraph 2, as well as ILO Convention 128, in its Article 15, paragraph 2, indicate that the retirement age cannot exceed 65 years, and in the cited examples, to be able to obtain a Judicial Branch pension, one would have to exceed that age; which was established in Law 9544 without a technical study, not of an accounting nature like the questioned IICE products, but of a sociological nature that determines, with certainty, the possibility that Criminal Judges, Family Judges, Agrarian Judges, Civil Judges, Contentious-Administrative Judges, and Judges of all matters handled by the Judicial Branch, as well as Judicial Police, administrative staff, Prosecutors, Public Defenders, among others, can work without affecting the service, but above all their physical and mental health, by extending the years of service to retire. They consider that it is not about simply extending service by five years under the argument of the pro-fund principle, because with the reform brought about by Law 9544, a person who started working for the Judicial Branch at age 20, in order to retire, must now work 45 years, far exceeding the 30 years of contribution indicated by ILO Conventions 102 and 128, and this is without a technical study under the indicated conditions, which are not simply the accounting ones that have been given more importance. They point out that these conditions cannot take precedence over the Pro Fund Principle - which is not a principle of constitutional origin but of legal origin - over the indicated international regulations, especially in the evident absence of technical-scientific criteria that determine the maximum age at which a person can perform the judicial functions of the Judicial Branch, which, it should be noted, presents a great number of different situations and possibilities among the people who work in this institution (Police, Prosecutors, Judges of different matters, Public Defenders, and Administrative staff), both due to physical and mental health, and the danger that, by so drastically reducing, as Law 9544 does, the rights to retirement and pension, staff are dangerously exposed to the temptation of corruption. They indicate that this legal principle cannot be superimposed on the Human Right to a fair retirement or pension, after having completed a judicial career in whatever field, and where strength permits, without detriment to the health and dignified old age of the judicial sector. They point out that Articles 224, 224 bis, and 226 of Law 9544 establish first that to retire one must have at least 20 years of service in the Judicial Branch, but must also complete a total of 35 years working in the public sector; consequently, any person who starts working in the Judicial Branch after age 46 must retire after age 65, and thus, in applying the previous requirement, what is indicated in ILO Conventions: 102 in its Article 26 and 128 in its Article 15 is breached, but above all, it must be noted that there is no technical study required to determine this need in accounting terms and, less so, this physical and mental "possibility" of the population, even though these are required aspects, as established in Article 15 of ILO Convention 128, which indicates:

"The prescribed age should not exceed sixty-five years, but a higher age may be prescribed by the competent authority, taking into account appropriate demographic, economic and social criteria, justified by statistical data.

3. If the prescribed age is equal to or higher than sixty-five years, that age shall be reduced, under prescribed conditions, for persons who have been working in occupations deemed by national legislation to be arduous or unhealthy for purposes of old-age benefit" (highlights are from the brief).

• 13)They argue that the questioned IICE study turns out to be of an economic nature, but above all it is incomplete because it analyzes the fund's sustainability and, it is reiterated, it is questioned from an accounting standpoint, but there is no demographic and sociological study regarding the real possibilities that people working in the Judicial Branch can extend the retirement age without harming their physical and mental health. They argue that, as the reform lacks appropriate demographic and social reports, justified by statistical data required by international Human Rights regulations, it becomes unconstitutional, further estimating that the promulgation of Law 9544 was done in a hasty and unconsulted manner. They argue that, before obtaining the right to retirement or pension, there is a subjective acquired right or, at minimum, a legitimate expectation, so they question what the technical-scientific basis is for determining an 18-month period established in Transitory Provision VI of Law 9544, and not another such as 20 years of contributing to the fund. They consider that, on the issue of the right to retire under the terms of a repealed law, there is ample material for its legitimate justification. 14) They point out that the treatment the issue has received from the Colombian Constitutional Court in Judgment number T-235 of 2002 is interesting, which, regarding the justification for transition regimes in retirement matters, indicated that "the substitution of one norm for another demands the need for a transition regime. The existence of transitory norms is indispensable in the designation of social security in pensions because there are rights in the course of acquisition." They argue that this citation refers to persons with a certain number of contributions paid into the fund at the time of the legislative change, who they consider should be given different and superior treatment to that of a simple expectation of a right. They state that judgment number T-631 of 2002, also from the Colombian Constitutional Court, indicated that "it has been considered that the situation of persons who are approaching, by age or time of service, those contemplated in the law to access the old-age pension, is not the same as that of those who are barely starting a working life, have few years of service, or whose age is quite far from the required one. These tactical situations justify different treatment" (highlights are from the brief). They argue that under these circumstances, new retirement rules cannot be imposed equally on a person who is 10 years from retiring as on a person who is just starting work or who is 30 years from retiring at the time a reform comes into effect, from every point of view and for different circumstances. In that sense, they emphasize that the law repealed by Law 9544 established that, upon completing 30 years of service (which implies an amount exceeding the 300 contributions required by the IVM regime of the Costa Rican Social Security Fund), the person could request early retirement regardless of age and, under that perspective, they had been working and projecting their life into the near future; however, upon changing the retirement system so drastically, that same person must now think that the minimum retirement age, thinking of receiving the full pension, will be 65 years and, therefore, they go from a regime where they could retire after 30 years of service regardless of age, to a regime in which they must wait until age 65, which means for a person who starts work at age 20, having to work 45 years of their life and, if they wish to advance retirement, they must suffer an extremely drastic economic reduction, on top of the already very reduced pension. They indicate that, in the case of the Judicial Branch, if a Judicial Police officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker - just to give some examples - retired at age 55 after 30 years of service, to force them to work ten more years, there must necessarily be technical-scientific studies that determine this possibility, given that one cannot lose sight of the fact that positions like those in these examples entail an enormous emotional burden in their daily work that could affect - in an extremely negative way - having to work 10 more years. They consider that the position of the Colombian Constitutional Court is of interest in relation to the point raised and, specifically in judgment number C-789 of 2002, when it ordered: "the creation of a transition regime constitutes a protection mechanism so that the changes produced by a legislative transition do not disproportionately affect those who, although they have not acquired the right to a pension, for not having met the requirements for it, have a legitimate expectation of acquiring that right" (highlights are from the brief). 15) They state that, if the examples of positions indicated above are brought up, when hiring new staff, they will be able to assess the advisability of starting their judicial career under those conditions, but, if they have 20 or more years of judicial service, it becomes more difficult to make the decision to resign due to the gross extension of these terms; hence they consider the need to differentiate - by means of a transitory provision - the different conditions of active persons, as well as to temper this issue, drawing on what is established in ILO Conventions 102 and 128 regarding what is sought to be protected with the 20 years of "residence" and, understanding that this term does not coldly refer to 20 years of living in a place (a merely geographical criterion disconnected from the criterion of "belonging"), but rather refers to 20 years of contribution to a specific regime; a contribution that grants the right to retire under the rules of that specific regime, not simply for living in a specific country, but for belonging to and having contributed to a specific regime and not another, during those 20 years. Now, in relation to constitutional jurisprudence in Costa Rica and what is established in Transitory Provision VI of Law 9544, they state that the Chamber, in judgment 1147-90 at 4:00 p.m. on September 21, 1990, as the supreme interpreter of the Constitution, indicated that the worker's right to retirement as a Human Right is not unrestricted, but the conditions and limitations to be imposed must be necessary and technically justified:

"In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are, moreover, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose" (highlights are from the brief).

They warn that, in this action, it is not indicated or argued that a retirement and pension regime is immutable; on the contrary, they emphasize that the argument put forward in the action is aimed at supporting the possibility of modifications over time, but the issue is that reforms that may harm the conditions under which a sector of contributors has been contributing in hopes of retiring are not changed without considering the conservation of rights in the course of acquisition, since, clearly for persons with 20 or more years of service, it would be legislating against principles such as legitimate expectation and legal certainty. They argue that, in the logical context of restricting the worker's right to retirement, the Constitutional Court indicated - in a manner they consider accurate - that the right is acquired at the moment one enters the regime, in the following way:

"It has already been said that the right to retirement cannot be limited, conditioned, or suppressed unreasonably or disproportionately, no matter if due to circumstances before or after its acquisition, consolidation, recognition, or effective enjoyment. In this sense, it must be observed that this right ceases to be a simple expectation and is acquired from the moment one enters the retirement regime, at least as a general right of belonging to it (...)" (highlights are from the brief).

They emphasize that this Constitutional Court has recognized, as an acquired right, belonging to a particular pension regime, which generates adequate protection for the Human Right to a dignified retirement or pension; therefore, they consider that there is no antinomy between the principle of "residence" regulated in different ILO Conventions and that of "belonging" developed by the Constitutional Chamber, which is also beyond discussion, since those same ILO Conventions speak of the conservation of rights in the course of acquisition; the point here is to determine, through the respective technical-scientific studies, what the period will be for that conservation of rights in the course of acquisition. They reiterate that the ILO Conventions speak of residence - understanding it as the time (20 years) during which a working person lives (and pays contributions) in a specific country (with a specific retirement regime) - therefore, they consider that the interpretation of the "belonging" criterion made by the Constitutional Chamber is accurate, and in that sense, they state that the cited vote continues indicating:

"This is so, because from the moment one enters the retirement regime, the worker is protected, not only by the legal and regulatory rules and criteria of the regime itself, but also by the constitutional norms and principles that enshrine their right to retirement or surround it with the special guarantees of the Fundamental Law, among them the one that prohibits giving the former retroactive effect to the detriment of any person, or their acquired rights or consolidated legal situations" (the highlight is from the brief).

They indicate that it is clear that this Vote identifies - in a clear manner - what should be understood as the right of belonging to a specific retirement regime and not another; however, mention must now be made of two Votes where this Constitutional Court made a correct interpretation of what should be understood by the term "residence" established in Articles 29 of ILO Convention 102 and 18 of ILO Convention 128, in reference to judgments number 6842-99 at 8:45 a.m. on September 3, 1999, and number 673-2000 at 9:48 a.m. on January 21, 2000, in which, in summary, it was indicated that having belonged for 20 years to a specific regime, one acquired the right to retire under the conditions established in it, even if these later change. 16) They argue that, extrapolating the above to the situation of persons working in the Judicial Branch, having completed 20 years of contributing to the regime established in the Organic Law of the Judicial Branch recently repealed by Law 9544, a right in the course of acquisition was consolidated to retire or receive a pension under the conditions established in the repealed regime. They highlight that an interesting analogous comparison can be made following the criterion of 20 years to consolidate the legal situation, which is that Law 9544 establishes in its Articles 224, 224 bis, and 226 that to have the subjective right to a pension, one must have served - contributed to the fund - for 20 years, and in this sense, they consider that this means, no more and no less, exactly what the Constitutional Chamber indicated in the previously analyzed Votes: that after 20 years of contributing under a retirement and pension regime, that right of "belonging" developed by the Constitutional Chamber is consolidated "automatically." They consider that, following this line, the same criterion should apply to persons who, at the time the new law was published, had 20 or more years of contributing to the repealed regime, and in that way, they have consolidated the conservation of their rights in the course of acquisition; therefore, they should retire when they meet the requirements of Law 7333 under the parameters of that legislation. They add that one must not fail to analyze the content of Vote 2091-00 at 8:30 a.m. on March 8, 2000, in which the Constitutional Chamber modifies the residency criterion, leaving it partially void, although it must be clarified that they maintain the criterion of the acquired right, or at least that possibility is not eliminated. They argue that what this judgment does is vary the interpretation of the term "residence" so that it is understood as the place where one lives or, in other words, as analyzed in Vote 2018-5758 at 3:40 p.m. on April 12, 2018, as a strictly geographical or territorial concept, without eliminating the possibility that, indeed, a legitimate expectation, even an acquired right, can be consolidated, just as Law 9544 ultimately recognizes in Transitory Provision VI. They argue that, seeing these 2 positions, the second one, that is, seeing the "residence" concept as a merely geographical aspect, seems very simplistic and empty, especially when considering that the discussion related to the application or violation of a Human Right, such as the one analyzed in this action, demands a much deeper analysis. They point out that Articles 29 and 18 of ILO Conventions 102 and 128 must be considered, in that they indicate that the benefit shall be guaranteed, in the covered contingency, at least to protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence. They recall that, in both international instruments, when mentioning "residence," "habitual residence" must be understood. They consider that, up to this point, there is no major discussion with the content of Constitutional Chamber Vote 2091-00; however, the challenge made is to the strictly normative interpretation given to that term, which they consider contrary to the Pro Homine and Pro Libertate principles. They point out that when the indicated Conventions speak of residence and this refers to the place where one lives, the norm must be contextualized, as this Court properly did in its early resolutions, because it is evidently done to differentiate the regimes in which the working person may have worked during their active working life in different countries within the members that signed this Convention, among which is Costa Rica, and so, the fact that a person has or has had 20 years of work in Costa Rica does not mean that by that fact they acquire the right to a pension with that "requirement" of residency as "geographical" data (20 years of residency in the country); what it means is that, with that norm of 20 years of residency, a legitimate expectation is created, a right in the course of acquisition as indicated by the ILO, even a subjective right and, therefore, one can choose, in a given case, to retire under the rules of the territory where they worked for that number of years. They argue that an example of the above is a worker who worked 20 years in the Judicial Branch of Costa Rica and subsequently worked 10 or more years but less than 20 in another country, such that this person can choose to retire under the conditions established in the Judicial Branch of Costa Rica, where they resided (worked) for 20 years; now, if this person who worked 20 years in the Judicial Branch of Costa Rica ended the employment relationship here on February 1, 2018 (a date when Law 7333 was in force and not Law 9544) and the remaining years worked in another country, and decides to retire under the system for which they worked 20 years (residency criterion), do they retire under the regulation established in Law 9544, which was not in force when they stopped working in Costa Rica? They consider that, legally, the answer must be negative and they must retire under the conditions of the regime to which they contributed those 20 years. They estimate that, in this way, the term "residence" cannot be interpreted - in such a cold and uncritical manner - and excluded from the close relationship it has with the term "belonging" developed by the Constitutional Court, since they argue that it is to protect the latter that the former is applied.

They indicate that Article 29 of ILO Convention 102 states:

"1. The benefit mentioned in Article 28 shall be guaranteed, in the covered contingency, at least:

(a) to protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence" (the highlight is from the brief).

They argue that, in the same sense, Article 18 of ILO Convention 128 must be viewed. They state that the first thing that must be clear is that, when indicating 30 years of contribution or employment, reference is made to contributions in different regimes during those 30 years, but which do not reach 20 years in a specific one; thus, even with that number of years, residency in any regime is not reached and, therefore, in compliance with the obligation established in Articles 25 of Convention 102 and 14 of Convention 128 of the ILO, the member State must guarantee the benefit (retirement or pension). 17) They indicate that it is now necessary to determine what "qualifying period" means which, according to Article 1, subparagraph f) of ILO Convention 102, means: "the term qualifying period means a contribution period, a period of employment, a period of residence or any combination thereof, as may be prescribed"; in the same sense, they indicate Article 1 of ILO Convention 128. They state, then, that the indicated regulation should not be decontextualized by coldly interpreting residence alone or simply as the place where one lives, because under that argument and the purely normative interpretation, one would have that, living 20 years in Costa Rica, one could apply for the pension, which in their view becomes an incorrect interpretation and the qualifying period can then be the 20 years of residence (geographical, yes, but under the understanding of the shelter of a specific pension system), just as it can be the 30 years of contribution in different regimes, without reaching 20 years in a specific one. They argue that, in summary, the period of residence is nothing other than a period of "BELONGING" to a specific regime, for having contributed to it for a certain time, which is none other than the time of residence in the country and of contribution in a specific regime in that zone or geographical area governed under a specific law. 17) They add that another international regulation of interest here is ILO Convention 157 on the conservation of rights in matters of social security, and that in this Convention, in its Article 6, the need for States to develop a system for the conservation of rights in the course of acquisition is established, whether as acquired rights or as legitimate expectations. They add that Article 7 of the indicated Convention speaks of the need for conservation of rights in the course of acquisition, providing for the totalization of "periods of insurance"; for its part, Article 1, subparagraph J of this Convention clarifies that the term "Periods of Insurance" designates periods of contribution, employment, or residence, as defined or recognized as periods of insurance by the legislation under which they were completed. They argue that the previous explanation is to reiterate the need not to see the term "residence" as simply the years one resides in a specific place, but as a measure in the number of years working under a specific regime and during which one has contributed for 20 years; therefore, that working person has acquired the right to retire under those rules of that specific country. They indicate that, due to the above, when Conventions 102 and 128 speak of residence, they refer to "belonging" to a specific regime in a specific country, and that, if it is for a period of 20 years, it creates the legitimate expectation or even the acquired subjective right to receive a pension under the rules established in that retirement system; hence, the first interpretation given to the term by the Constitutional Court is the correct one. They state that, to further support the legal situation they intend to defend, it must be noted that in none of the ILO Conventions under analysis - 102, 128, and 157 - is the term "belonging" spoken of in a concrete manner, and this is because the way a working person's right to choose a specific regime over another, according to their convenience, is addressed is by using the term "residence," which they consider can be assimilated to belonging to a specific regime for a certain time (20 years) and, in this way, the subjective right is created to be covered by the conditions established in that regime. In other words, they argue that Articles 29 of Convention 102 and 17 of Convention 128, both of the ILO, must be understood in the sense that, for the purposes of retirement or pension when one has worked under the protection of different regimes, this must be guaranteed with the rules of one specifically (residence), at least to protected persons who have completed, before the contingency, 20 years of residence, which clearly is not simply residing in a specific place geographically speaking, but having contributed in the regime in force in that place where one geographically works. They state that, in this way, it is legally correct, due to its positive effects for the administered party (pro homine and pro libertate principles), to understand that having contributed in a specific system for 20 years or more, the subjective right is acquired to retire or receive a pension under these rules, so much so that it is precisely the period contemplated - although for negative effects for the administered party - in Articles 224, 224 bis, and 236 of Law 9544; articles that they affirm they challenge for rendering the right to retirement nugatory before completing those 20 years. They state that, in this same line of thought, the General Survey of the Committee of Experts on the Application of Conventions and Recommendations, ILO Geneva, in relation to the protection of old age by social security, International Labour Conference, 76th session 1989, specifically in paragraphs 105 and 127, indicates regarding that interpretation related to the term "residence," the following:

"In this respect, it should be pointed out that the measures indicated in Article 30 mentioned above must be adopted at the national level, consequently, they are not measures that are necessary at the international level to guarantee the conservation of rights in the course of acquisition in the event of transferring residence from one country to another (...) The question of the conservation of rights in the course of acquisition also arises when the insured person is subject to or dependent on various social security regimes during their working life (...). In this case, it involves the internal coordination of different social security legislations, each of which requires the fulfillment of a qualifying period" (highlights are from the brief).

They add that, as is seen with absolute clarity, the term "residence" according to the International Labour Organization itself should not be decontextualized and analyzed coldly and exclusively as "place of residence" or from a "geographical" point of view, because the conservation of rights in the course of acquisition refers to very particular situations, such as change of residence, or the change from one retirement regime to another, especially in the case of countries where there is a plurality of systems, or as in the case under study when a reform is required and to determine who it affects and who falls under the transition period in the conservation of rights in the course of acquisition. They warn that the International Labour Organization, when referring to the conservation of rights in the course of acquisition, does not refer to the impossibility of retirement systems modifying their conditions in the future, but to the obligation to observe the indicated conservation; in this way, if a worker has contributed in a specific territory for 20 years and this entitles them to the right to retire under that regime (conservation of rights in the course of acquisition), with equal reason, a person who has worked in Costa Rica, contributing to the Judicial Branch retirement and pension regime for 20 years, and undergoes a reform, maintains the right to retire under said regime; obviously in both cases upon meeting the requirements indicated according to that regime where they already contributed the 20 years. They indicate that what was said by the I.L.O. at the International Labour Conference, 67th session 1981, must be analyzed, regarding the conservation of the rights of migrant workers in matters of Social Security (Revision of Convention No.

148) ILO, Geneva, which on its page 25, provides:

“The acquisition of the right to social security benefits is not subject to the same conditions in the different social security legislations. In effect, in some of them the right is acquired upon completion or as qualifying periods regarding insurance, employment, professional activity, or residence are fulfilled. When said periods have been completed, the right is maintained until the date the contingency occurs, either for a specific time limit, or without limitation of duration, sometimes on the condition that the interested party completes new qualifying periods, with a view to maintaining or recovering the right. On the contrary, according to other legislations, in the contingencies that justify the granting of benefits, the right depends exclusively on the applicant's residence in the territory of the country in question, whether or not taking their nationality into account, but without any condition of a prior qualifying period, or subject to a very reduced residence condition” (highlighting is from the brief).

They indicate that, despite the International Labour Organization not stating it explicitly through its conventions, from the texts just transcribed that have served as the basis for the cited regulations, it is deduced that Member States indeed have the obligation to respect the preservation of rights in the course of acquisition, circumscribed to a very particular reality, which is the change of residence or of the specific regime under which contributions have been made for a retirement or pension. 18) They add that, in line with what has been presented so far, a constitutionally questionable aspect regarding Law 9544 is the failure to observe an adequate and fair transition regime for the workers of the Judicial Branch who, although it is true, had not acquired the right to retire because they did not have 30 years of service or 62 years of age (requirements of the repealed Law 7333), also cannot be placed in a position of a "mere expectation" for all groups of people who work for the Judicial Branch. They consider that Law 9544 establishes an acquired right but, arbitrarily, sets the benefit period at 18 months, without having technical criteria to justify it. They indicate that the discussion is not whether or not an "acquired right" exists, or whether one is facing a "legitimate expectation," because the consolidated legal situation exists, as is well understood from Transitional Provision VI of Law 9544, which established a transition regime. They recall that Article 34 of the Political Constitution establishes that no law may affect consolidated legal situations; therefore, for the working population of the Judicial Branch, it is fundamental to determine the technical-scientific criterion that served as the basis for determining that temporary transition as 18 months and not 10 years (20 of service). They argue that Article 30 of ILO Convention 128 establishes:

“National legislation shall, under prescribed conditions, provide for the preservation of rights in course of acquisition with respect to contributory benefits for invalidity, old age, and survivors” (highlighting is from the brief).

They add that, regarding the foregoing, the IICE_6 product, in point 8 on final considerations, specifically regarding point b) on the "transition provision," determines that possibility between two and five years (not 18 months); however, due to the effects they would have on solvency (whether or not they would be considerable for their application), the conclusion textually states:

“To adequately assess the effect of an increase in this transition provision, it would be necessary to perform a complete actuarial analysis.” They consider that the foregoing indicates, without a doubt, that the issue of the transition provision and its actuarial implications was not analyzed to determine, on a technical-scientific basis, whether or not it was viable—from the perspective of actuarial sustainability, which is what IICE's services were contracted for—that possibility of a transition provision of 5 or 10 years (20 or 25 years of service and not 28 years and 6 months) and, in that way, affect the least possible number of Judicial Branch workers with rights in the course of acquisition. They maintain that, for this reason, the Legislative Assembly, in an unfounded, arbitrary, and capricious manner, made a decision to create that acquired right or consolidated situation only for people who were a year and a half away from fulfilling any of the requirements of the repealed Law 7333. They add that one can even see that said IICE_6 report proceeds to "assume" absolutely subjective aspects, such as that granting a transition provision of 5 years or more would cause the actors to extend that transition period—in a technically and scientifically unfounded manner—; it even indicates that applying a transition provision could "delay" or postpone adjustments, potentially "giving the impression" that these did not yield the desired results. They indicate that, therefore, to "not give that impression," it is better not to do the study and to affect—without major justification—the consolidated legal situations of people with 20 years of working for the Judicial Branch. They point out that one must remember what is indicated in the IICE_6 product, in point 8 on final considerations, specifically regarding point b) on the "transition provision" in which that possibility between 2 and 5 years is determined; however, due to the effects these would have on solvency (whether or not they would be considerable for their application), the conclusion stated that “to adequately assess the effect of an increase in this transition provision, it would be necessary to perform a complete actuarial analysis.” Thus, they then affirm that there is no study that technically and scientifically explains why 18 months and not 20 years for the transition and in order to affect the least possible number of workers. 19) They argue that 18 months turns out to be a minimum that has been considered; however, given the gravity of the reforms made by the Legislative Assembly, in consideration of the constitutional principles of proportionality and reasonableness, that minimum should have been justified, as well as why one decision was made and not another less burdensome one if, in both cases, the same end could be achieved, i.e., actuarial solvency. 20) They recall that the IICE_6 Product establishes that, in a positive scenario, there would be a surplus of 0.43 billion—according to summary compendium #7a—and of 0.65 billion—according to summary compendium #7b—so these scenarios present the possibility of applying a transition provision similar to that established in the regulatory reform of the Special Pension Regimes charged to the budget to contain pension spending, Law 9388, which, in its Transitional Provision III, establishes said transition period as 5 years. They add that, despite the foregoing, this possibility was closed to people who have 25 years or more of working in the Judicial Branch because there is no technical-scientific study that determines whether, actuarially, this was possible or, even, whether that possibility could be applied to people who, at the time the reform entered into force, had completed 20 or more years of service in the Judicial Branch. 20) They indicate that, due to the foregoing, because such a burdensome impact is caused, there must be a technical-scientific document that supports the application of a transition provision that covers only people who, upon the new law's entry into force, had 28 years and 6 months of service; otherwise, that decision becomes unconstitutional for lacking a technical study in that regard and, therefore, in their view, it is violative of the principle of prohibition of arbitrariness, among others of constitutional standing, as they have been stating. They argue that, in summary, what is questioned is the absence of the technical-scientific criterion to determine the temporal scope for the beneficiaries of that right, since in none of the parts of the actuarial study performed by IICCE (1 to 6) is there a justification that determines why that legal situation and why the legislator decides that it reaches or covers only people who are 18 months away from fulfilling any of the requirements of the repealed law at the time of publication of Law 9544. They deem it important to highlight that the legislator does recognize a subjective right acquired to retire under the repealed regime, except that it sets the period of that right for an extremely short period, thus harming a considerable group of people who have built the system under legitimate expectations that will now not be fulfilled and, consequently, in their view, they consider that there is an arbitrary abuse of imposing harmful conditions, without technical criteria, with the idea of harming the labor sector of the Judicial Branch prevailing. 21) In addition to the foregoing, they consider that there is also a violation of gender principles related to the retirement age, because Article 224 of Law 9544 establishes that, to obtain the “full” retirement or pension, people who work in the Judicial Branch must fulfill two requirements: 35 years of service and 65 years of age; a rule that makes no distinction whatsoever to receive said benefit between men and women, but that, moreover, is in clear contradiction with what is established in Article 71 of the Political Constitution. They argue that this is a clear example of positive discrimination. They point out that the Legislative Branch, through the creation of the rule, materialized a structural discrimination against the female population that works within the Judicial Branch because Article 224 of Law 9544 makes no distinction by age or time of service based on gender. They point out that, regarding this issue, the ILO has indicated that female labor must be addressed with specific measures, as provided by the ILO Constitution, Convention 100 on Equal Remuneration, Convention 111 on Discrimination in Employment and Occupation, Convention 156 on Workers with Family Responsibilities, and Convention 183 on Maternity Protection. They add that, furthermore, regarding international Human Rights regulations, this is joined by the Resolution concerning the Promotion of Gender Equality, Equal Remuneration and Maternity Protection, the Resolution concerning Gender Equality as a Core Element of Decent Work, as well as—no less important—other International Human Rights Instruments such as the Charter of the United Nations itself, the conclusions reached by the United Nations Economic and Social Council regarding gender mainstreaming, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Beijing Platform for Action (1995 and its follow-up), and the Millennium Development Goals; all instruments that promote the definition of focal points in the protection of women's rights within the labor sphere. They argue that, in Costa Rica, the National Institute of Statistics and Census (INEC) has indicated that the effective rate of time spent on domestic work in Costa Rica is 5 hours and 14 minutes daily compared to 1 hour and 22 minutes for men (according to INEC 2006-2011). They point out that, for its part, the ILO (2016 Report) has established that, worldwide, women spend 2 and a half times more on domestic work than men, according to internal data on family and domestic work. They state that all these arguments oblige the Legislator to ensure that, in the event of not applying gender criteria, as is the case with the age or years of service established in Article 224 of Law 9544, it must have technical-scientific backing to support it. They argue that, in this case, in none of the products contracted and delivered by the MCE (1 to 6) to the Judicial Branch, is the justification established as to why special treatment is not given to the case of female workers of the Judicial Branch, as the indicated constitutional and International regulations mandate. They consider that what is indicated in official letter IICE-186-2017—questioned above—must be noted, on its page 3, point c, in which it was expressly stated: “The IICE team does not consider it necessary to establish additional distinctions based on gender.” They affirm that this is a tremendous argument to eliminate the inclusion of “gender”-type criteria within the law, but above all to ignore the direct application of the “copied” one, since the indicated gentleman attaches only one copy to his personal file, as is evident from that same note. 22) They argue that document IICE-0186-2017 cannot, and should not, be considered an extension of any technical study capable of offering support for the regulations challenged here, and they reiterate what was said earlier in that this document—signed by Mr. José Antonio Cordero Peña—was not endorsed by any member of those who previously carried out and signed the officially delivered products (IICE 1 to 6); an official letter that was addressed to Mrs. Nery Agüero Montero exclusively and personally by Mr. Cordero Peña. They warn that, although it is true, the second paragraph of said note indicates that the IICE team studied the proposal of the Affirmative Majority Opinion, it must be highlighted that the Minority Opinion proposal also took the IICE 3 and IICE 4 frameworks as a reference. They add that this cited official letter does not indicate “which” members of the IICE team supposedly accompany him in that position, since several people participated in those products (IICE 3 and 4), but more importantly, there must be minimal participation that is not recorded in that personal note signed by Mr. Cordero Peña. They add that, in addition to not indicating who participates, the truth is that this official letter is also not signed or subscribed by any other person, so that, even if they had not been mentioned, they would have at least signed or subscribed (endorsed) it, and therefore it lacks objective aspects that could give sufficient strength to that document to come to contravene the Law of the Constitution and the Principle of Conventionality Control. They indicate that, for these reasons, although one might want to assimilate official letter IICE-186-2017 of August 18, 2017, as an extension to those IICE studies, or as a valid new study, the truth of the matter is that it is not, and it does not constitute a scientific, technical, and objective criterion to justify that the Legislative Branch, without having a real technical study, has failed to apply the required gender criteria, among others. They point out that, if despite the foregoing, one wishes to grant some weight to that document, it still lacks the technical-scientific justification to exclude the obligatory gender criteria. Based on what was said on this gender point, they also consider that Article 224 of Law 9544 is unconstitutional. They finalize the brief requesting that, considering that there are flagrant violations of the Law of the Constitution, Articles 224, 224 bis, and 226 of Law 9544 be declared unconstitutional, as well as transitional provision VI, all of Law 9544 and, where appropriate, it be dimensioned as corresponds, determining the preservation of the rights in the course of acquisition of the Judicial Branch workers, so that people who, at the time of the publication of Law 9544, have completed 20 years or more of contributing to the retirement and pension regime of the Judicial Branch, may retire or receive a pension under the parameters established by Law 7333 of May 5, 1993, published in scope 24 of Gazette No. 124 of July 1, 1993.

100.- On June 21, 2018, the proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the substitute Magistrate José Paulino Hernández Gutiérrez and the substitute Magistrate Marta Esquivel Rodríguez, filed a motion to recuse themselves on the grounds that they have a direct interest in the outcome of this action of unconstitutionality (in identical terms as they did in the principal case file 18-007819-0007-CO).

101.- In a resolution of the Presidency of the Constitutional Chamber—Magistrate Araya García—at 9:30 a.m. on June 20, 2018, the proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and substitutes Hernández Gutiérrez and Esquivel Rodríguez were ordered separated from the hearing of this matter, ordering that the pertinent information be communicated to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Law of Constitutional Jurisdiction.

102.- By official letter added to the electronic case file on June 22, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6205 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez for having recused themselves from hearing this action of unconstitutionality. It is reported that the selected substitute Magistrates are: Rónald Salazar Murillo, Ana María Picado Brenes, Alicia Salas Torres, Mauricio Chacón Jiménez, Ileana Sánchez Navarro, Hubert Fernández Argüello, and Alejandro Delgado Faith.

103.- On June 22, 2018, the substitute Magistrate Alicia Salas Torres; on June 27 following, the substitute Magistrate Mauricio Chacón Jiménez; on June 28 subsequent, the substitute Magistrates Rónald Salazar Murillo, Hubert Fernández Argüello, and substitute Magistrates Ileana Sánchez Navarro and Ana María Picado, filed a motion to recuse themselves in this case file in the same terms as they did in the principal case file 18-007819-0007-CO.

104.- In a resolution at 11:23 a.m. on June 28, 2018, the Presidency of the Constitutional Chamber—Magistrate Araya García—ordered the separation of substitute Magistrates Sánchez Navarro, Chacón Jiménez, Fernández Argüello, Salas Torres, Salazar Murillo, and Picado Brenes, as well as communicating the pertinent information to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to the provisions of Article 6 of the Law of Constitutional Jurisdiction.

105.- By official letter added to the electronic case file on July 3, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6231 carried out for the substitution of substitute Magistrates Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Ileana Sánchez Navarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes, stating that because the Chamber originally had requested 6 substitutes and there are only 3 available, the draw was carried out with the substitutes that were available, with the selected persons being Anamari Garro Vargas, Lucila Monge Pizarro, and Jorge Araya García.

106.- The substitute Magistrate Lucila Monge Pizarro—on July 4, 2018—and the substitute Magistrate Anamari Garro Vargas—on July 9 following—present a motion to recuse themselves from hearing this action of unconstitutionality in the same terms as they did in the principal case file 18-007819-0007-CO.

107.- The Presidency of the Constitutional Chamber, exercised by Magistrate Jorge Araya García, in a resolution at 8:05 a.m. on July 10, 2018, ordered the separation of substitute Magistrates Garro Vargas and Monge Pizarro from the hearing of this process, and ordered the case file be sent to the Presidency of the Supreme Court of Justice for the appropriate action.

108.- By resolution of the Presidency of the Constitutional Chamber—Magistrate Jorge Araya García—at 9:45 a.m. on July 10, 2018, and based on what was resolved by the President of the Constitutional Chamber—Magistrate Castillo Víquez—at 2:40 p.m. on August 3, 2018, in the principal case file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared qualified to hear this action of unconstitutionality, ordering that the processing of the case file continue.

109.- On July 21, 2018, the plaintiffs appeared to file a recusal motion against substitute Magistrate Alejandro Delgado Faith and state that on April 12, 2018, the Constitutional Chamber composed of the titular judges Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, José Paulino Hernández Gutiérrez, and Alejandro Delgado Faith, issued judgment No. 2018-005758 in which they resolved the legislative consultation presented by members of the Assembly regarding bill number 19.922 for the comprehensive reform of the various pension regimes and related regulations and that, subsequently, on May 22, 2018, it became Law 9544 challenged here, which was published in La Gaceta No. 89 of May 22, 2018; Magistrates who already issued a criterion on the constitutionality of the regulations now challenged. They indicate that, in this action of unconstitutionality, the proprietary Magistrates and the substitutes who fill a vacant position recused themselves from hearing it and, in accordance with the procedure established in the Organic Law of the Judicial Branch, the first draw number 6205 was carried out, one of the designees being the substitute Alejandro Delgado Faith who has already issued a criterion on the constitutionality of the bill that gave rise to the regulations now claimed as unconstitutional. They argue that while it is true that all the titular Magistrates who have already intervened would be in the same situation as substitute Delgado Faith, it is also true that the due process enshrined in Article 29, subsection 2) of the Organic Law of the Judicial Branch establishes that to guarantee the principle of impartiality of the judge as adequately as possible, in cases where the grounds for recusal apply to the titulares and substitutes, the former shall be requalified in accordance with said regulation and, for that reason, they argue that they file this recusal motion for the separation from hearing this matter with respect to substitute Magistrate Alejandro Delgado Faith and that he be substituted by the corresponding substitute according to the draw, considering that this Magistrate's impartiality is compromised by having issued a criterion on the merits. They argue that the Constitutional Chamber, in resolution number 2018-007210 at 9:40 a.m. on May 9, 2018, denied a recusal request similar to this one; however, they consider that the assumptions invoked in that resolution and in the precedents cited are not applicable to the situation underlying this case. They argue that the grounds for the recusal motion in this process are, specifically, having issued a criterion, not in a "similar" case as alleged in the aforementioned precedent, but in the same matter, that is, it is a case of identity of subjects (the judicial collective that is affected by the legislation), object (the legislative text that was ultimately sanctioned as law), and cause (questions about its constitutionality) that makes the possibility of intervention of the same magistrate incompatible, in this case a substitute, since there is not even a doubt about how he might resolve it, but rather his criterion has already been expressly enshrined and exposed in a resolution of the same Constitutional Court. They state that it is not possible, in that scenario, to avoid the certain and notorious circumstance that the Costa Rican State has already been the subject of a condemnation before an International Court for precisely violating the principle of impartiality of the judge, in an evidently identical situation, as was what happened with the Third Chamber of the Supreme Court of Justice in the Herrera Ulloa vs. Costa Rica case, according to the judgment of July 2, 2004. They emphasize that, in that scenario, it was not an obstacle for the Inter-American Court of Human Rights that the cited Third Chamber was a single specialized Court, with jurisdiction throughout the country, to tolerate that the same panel of titular judges would resolve in the same case, it being determinative that such a proceeding violates the conventional guarantee enshrined in Article 8.1 of the Convention; reason for which, within other aspects, the condemnation against the Costa Rican State was generated, considering that for this reason it is very pertinent and beneficial to take into consideration the literal text of what was ordered on that occasion. They add that the Judicial Branch, including the Constitutional Chamber as a state organ, would not be exempt from fulfilling the obligations that the International Law of Human Rights imposes on the Costa Rican State, specifically the due process that emanates from the American Convention and specifically regarding the principle of impartiality. They state that according to Article 11, paragraph 2 of the Law of Constitutional Jurisdiction, the resolutions of this venue have no further appeal; however, this does not imply that its decisions cannot generate, as was made clear in the resolution of the Inter-American Court, liability for the Costa Rican State. They consider that for both the national and international legal order, the principle of safeguarding the impartiality of the judge is determinative, so much so that, at the level of national legislation, sanctions are contemplated at the administrative level, and even criminal, against the official who violates that principle. They add that, in this case, it is not that they arbitrarily intend to separate the Magistrates of the Chamber from hearing this case, but rather, what is happening is that, as administered parties—who even represent the interests of a collective to which they owe a duty—they could not allow a magistrate who already issued a criterion in that regard to do so again, especially when the legal order as well as due legal process establish a mechanism to remove Magistrate Delgado Faith and so that, in his place, a person who has not expressed a criterion regarding the object of the case rules. They indicate that the removal of a Magistrate who has already issued a criterion, not on a similar or comparable matter, but on the same procedural object, must be admissible even if it is not expressly contemplated in the Law of Constitutional Jurisdiction, because despite that legislative omission, certainly the American Convention on Human Rights, as the same Chamber has resolved, would be above even the Political Constitution itself in the specific matter of granting human rights; so undoubtedly the principle of impartiality must be guaranteed under the protection of both national and conventional legislation. They indicate that if one did not proceed in that way, discriminatory treatment would be given because the Constitutional Chamber has integrated its procedure applying Article 29, subsection 2 of the Organic Law of the Judicial Branch, in response to the invocation of recusals by both titulares and substitutes, reverting jurisdiction to the original members when the latter have also recused themselves. In that sense, they point out that, if the Law of Constitutional Jurisdiction does not expressly regulate matters related to the manner of implementing the principle of impartiality of the constitutional judge, one would have to resort to the corresponding supplementary norms. They consider that, in the specific case, the Natural Judge would be constituted by the Constitutional Court that is integrated in accordance with the regulation established in numeral 29, subsection 2) of the LOPJ, given that, the substitution of substitute Magistrate Delgado Faith would give full compliance to the guarantee of the impartial judge enshrined in Article 8.1 of the American Convention on Human Rights, which has force superior to the Political Constitution. They argue that Articles 72 and 87 of the LJC do not establish any specific rule on the integration of the Chamber with respect to cases where the same procedural object is discussed, which obviously must be resolved according to the rules of recusal, challenge, and excuse, which are the procedural institutes established to safeguard the principle of impartiality, given that, an interpretation that intended to make those rules support the possibility that a Magistrate who has resolved the same specific point does so again without submitting to what is established in Article 19, subsection 2) of the LOPJ, would be violating the guarantee established in Article 8, subsection 1 of the American Convention on Human Rights and, therefore, would be unconstitutional. They request that judgment No. 2018-005758 of 2:40 p.m. on April 12, 2018, be taken into consideration.

They conclude by requesting that Magistrate Delgado Faith be separated from hearing this action of unconstitutionality in order to guarantee the procedural guarantee of trial by an impartial adjudicator.

110.- In a document added to the case file on August 13, 2018, Substitute Magistrate Alejandro Delgado Faith appears to address the recusal filed by the representatives of the moving parties, through which they request that he be separated from hearing this matter. He argues that, according to the intervening parties, because he participated in vote 2018-5758 of 14 hours 40 minutes on April 12, 2018, he has already issued an opinion on an identical matter and, consequently, they consider that his judgment and independence are compromised for hearing this action. He points out that constitutional jurisdiction, unlike ordinary or common jurisdiction, must be governed by its own particular rules in order to prevent any appellant or sued authority from being able to separate Magistrates from hearing a specific and determined matter, contrary to the general principles of law regarding the non-waivability of competences (irrenunciabilidad de las competencias), the hermetic completeness of the legal system (plenitud hermética del ordenamiento jurídico), and the natural judge (juez natural). He points out that Article 4, paragraph 2, of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) provides that the organic regime of the Chamber is that established therein, as well as in the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial). For his part, he argues that this latter normative text, in its Article 31, recognizes the peculiarity of Constitutional Jurisdiction by stipulating that, regarding legal impediments, excuses, and recusals, "(…) it shall be governed by its own rules and principles." He continues pointing out that it must be noted that one of the principles of Constitutional Procedural Law (Article 14 of the Law of Constitutional Jurisdiction) is that of the natural judge (Article 35 of the Political Constitution), according to which no one may be tried by an ad hoc court or one specially appointed for the case "(…) but exclusively by the courts established in accordance with this Constitution." He points out that the constitutional judge cannot be considered a simple public official or a judge of ordinary legality; in his primary role as controller of the constitutionality of the norms of the legal system, the constitutional judge is —daily— confronted with resolving situations in which the notion of direct interest could have inconveniently broad interpretations that could force him to separate from hearing matters inherent to his function; however, he must not, for this reason, be recused or become disqualified in each of these matters, since doing so would distort his work as supreme judge of the Political Constitution. He argues that, in this regard, the Chamber itself has indicated that: "(...) Among the principles of Constitutional Procedural Law, those generally developed by comparative doctrine, case law, and legislation may be considered valid and applicable, in the sense that, in this matter, recusals or excuses are not admissible —read, for reasons of simple recusal or excuse—, such that its officials are only separated —that is, to excuse themselves or be recused or separated— when they have grounds for legal impediment, this same rigorously considered in light of the purposes, nature, and scope of Constitutional Justice, for which they are practically reduced to a single central one: the direct interest of the official or his immediate relatives in the specific case and points submitted to his knowledge." He states that he cannot fail to point out that, if it is considered that he must be separated from hearing this action, with the same arguments the other Magistrates who voted on the referenced matter would have to be separated, and although the intervening parties make a distinction between full Magistrates and substitutes, that distinction is not acceptable because, when a substitute Magistrate is called to hear a matter, he is subject to the same obligations and duties as the rest of the full panel. He adds that, in accordance with the foregoing, he is of the opinion that no reason exists that compromises his independence, especially considering that he is not, nor has he been, a judicial official and, therefore, is not benefited, either directly or indirectly, by what is resolved in this matter; nevertheless, he argues that he will abide by whatever the President of the Chamber resolves.

111.- In a resolution of the Presidency of the Constitutional Chamber —Magistrate Fernando Castillo— at 10 hours 42 minutes on August 16, 2018, the recusal request filed by the complaining party regarding Magistrate Delgado Faith was rejected, and he was declared qualified to hear this matter, furthermore ordering the continuation of the case file proceedings.

112.- On February 12, 2019, Magistrate Fernando Cruz Castro appears to state that, in this case file, and in all others that have been consolidated to the main case file number 18-007819-0007-CO, he submitted, together with other Magistrates, a request for self-disqualification (inhibitoria) because the reform to the Law on the Retirement and Pension Regime of the Judicial Branch is being challenged. He argues that, although said self-disqualification was initially accepted, subsequently, all the Magistrates were declared qualified based on the principle of non-waivability of competences. He argues that, since August 2018, he holds the position of President of the Supreme Court of Justice and, therefore, considers that he has a new reason to request self-disqualification. He adds that, in other proceedings before this Chamber where he has been a sued party or intervenor in his capacity as President of the Supreme Court of Justice, he has requested self-disqualification because he has considered that it is improper for him to act as a judge in a matter where he has been called as a party in said capacity, deeming that, in the case files indicated above, the same situation exists because he cannot participate in the voting on those actions since, as President of the Court, he will be called to report on the merits because the regulations are related to the Judicial Branch. He argues that, for this reason, he presents this self-disqualification and requests that the file be referred to the Presidency of the Constitutional Chamber so that it may resolve accordingly, in conformity with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

113.- By resolution at 13 hours 21 minutes on February 12, 2019, the President of the Constitutional Chamber —Magistrate Fernando Castillo— and based on what was resolved at 14 hours 40 minutes on August 3, 2018, issued in the main case file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was considered separated from hearing this matter, and Substitute Magistrate Marta Eugenia Esquivel Rodríguez was declared qualified to hear it, ordering the continuation of the case file proceedings.

114.- Regarding Action of Unconstitutionality No. 18-013217-0007-CO. In interlocutory resolution of the Full Chamber number 2019-002487 at 10 hours 04 minutes on February 13, 2019, it was ordered to consolidate this action of unconstitutionality 18-013217-0007-CO to the one that became main case file number 18-007819-0007-CO, and that it be considered an expansion thereof, due to the evident connection that exists between the objections raised in both proceedings and in order to avoid contradictory resolutions that could affect the rights and interests of the involved parties.

115.- By document received at the Secretariat of the Chamber at 12 hours 29 minutes on August 23, 2018, action of unconstitutionality number 18-013217-0007-CO is filed, brought by Adriana Orocú Chavarría, of legal age, married, Judge, with ID card 3-0317-0898, resident of San José, in her personal capacity and as President with powers of general attorney-in-fact of the Costa Rican Association of the Judicature (Asociación Costarricense de la Judicatura, ACOJUD); Ingrid Fonseca Esquivel, of legal age, Judge, bearer of ID card number 1-0698-0988; Freddy Arias Robles, of legal age, with identity card 1-727-493, Judge; Germán Esquivel Campos, of legal age, with ID card number 1-0965-0647, Judge; Yerma Campos Calvo, of legal age, Judge, bearer of ID card 1-0607-0534; Maribel Bustillo Piedra, of legal age, ID card 1-683-0430, Judge; and the judicial officials: Pedro Valverde Díaz, of legal age, with ID card 1-0634-0537; Juan Carlos Cubillo Miranda, of legal age, identity card 5-0219-0266; Maíkel Coles Ramos, of legal age, with ID card number 2-0452-0646; Alonso Hernández Méndez, of legal age, identity card 1-1145-0746; Ana Lucía Vásquez Rivera, of legal age, ID card 1-0690-0133; Estrella Soto Quesada, of legal age, ID card number 2-345-973; Mario Alberto Sáenz Rojas, of legal age, ID card 1-0644-0873; Paula Esmeralda Guido Howell, of legal age, with ID card number 1-0675-0975; against the "Law that reforms the Retirement and Pension Regime of the Judicial Branch, (contained in Law 7333, of May 5, 1993, and its reforms)" approved by Law number 9544 of April 24, 2018, published in La Gaceta number 89, of May 22, 2018. As a precautionary measure, they request that the effectiveness of Law 9544 challenged in this action be suspended to avoid serious disruptions to justice and social peace, this because it is causing serious harm to judicial officials since it created a lower pension than that provided by the Disability, Old Age, and Death (Invalidez, Vejez y Muerte, IVM) regime of the CCSS, and it has also produced a very serious reduction in the salaries of current servants that is generating the resignation of dozens of judicial officials and procedures to change the pension regime to which they belong, which ultimately harms the public service of administration of justice. They indicate that they support this action of unconstitutionality on a writ of amparo filed by the Judges indicated at the beginning, and judicial officials, in which they allege that, with the approval and application of Law 9544, a serious injury is caused to the right to retirement and the right to equality; an amparo in which they formally invoked the unconstitutionality of that regulation, as a reasonable means to protect their fundamental rights, according to the provisions of Article 79 of the Law of Constitutional Jurisdiction. They argue that the judges who are bringing action in this case file are members of the Costa Rican Association of the Judicature (ACOJUD) and, therefore, in addition to the incidental or indirect legal standing —supported by the cited amparo—, they claim the legal standing that ACOJUD has to bring this action of unconstitutionality —directly—, in exercise of the right granted by Article 75, paragraph 2, of the Law of Constitutional Jurisdiction since it concerns the defense of the corporate interest that pertains to the professional association of Judges of the Judicial Branch, in favor of the constitutional rights of its members. They consider that the drastic decrease in the amount of the pension or retirement causes objective inequality with respect to pensioners under the Disability, Old Age, and Death regime of the CCSS, who will obtain a higher pension but contribute less; in addition to the drastic reduction in the salaries of adjudicators due to the high percentage set in the law and other charges applied to the pension regime membership implemented in the challenged law. They argue that ACOJUD is a corporate entity that has as one of its purposes the defense of the interests of its members, which empowers it to bring this action of unconstitutionality directly, in order to restore the constitutional rights to salary compensation and to obtain a just and equitable pension, according to the position and responsibility held, in relation to numerals 9, 11, 33, 57, 153, and 177, paragraph 3, of the Political Constitution. They argue that the challenged law directly affects the rights of the associates and, being a self-executing (auto-aplicativa) norm, it does not need any other norm to be effective, not even an administrative regulation, such that it is already being applied and is causing direct harm, which is why they consider that ACOJUD has active procedural legal standing.

The complainants allege that, in relation to Law 9544, there are grounds for unconstitutionality both in form and in substance. Regarding form, A) first, they argue that consultations required for autonomous institutions and state banks have been omitted. On this matter, they cite the provision in constitutional Article 190:

"ARTICLE 190.- For the discussion and approval of bills relating to an autonomous institution, the Legislative Assembly shall previously hear the opinion of that institution." They argue that regarding the relevance of the obligation for constitutional consultation relative to autonomous institutions —such as the CCSS—, the Chamber has stated, in pertinent part, the following:

"(…) The simple mandatory consultation finally ordered in Article 190 (…) converts the consulted institution into a kind of auxiliary body of the Assembly for making a decision that corresponds exclusively to the latter (constitutional Article 121). The consultation is not, however, a mere procedural formality, lacking meaning or substantive purpose, since it pursues a purpose related to the suitability or quality of the law to achieve the specific results intended with it. Therefore, the consultation must be made at a procedural opportunity such that the Assembly has a real opportunity to hear the consultative opinion, that is, to attend to and consider it; in other words, what explains and justifies Article 190 is that the Assembly truly has sufficient opportunity, during the process, to know and appreciate the consultative opinion before making a decision. It is, moreover, an opinion requested on a specific bill, which is none other than the one that has been submitted to legislative knowledge through the exercise of initiative. The consequence of the opinion may be the amendment of the bill, in which case (especially if this occurs in what is usually called the 'Committee proceedings') it implies that the consultation does not necessarily deal with the 'final bill'; on the contrary, the consultation in such a case would have led the legislative will to configure a text different from the one originally presented.

4. All of the foregoing refers, then, to the violation committed because, during the legislative procedure, the limits of the right of amendment were exceeded, materially altering the text of the bill in an essential way. A violation to which is added, as has been seen, an inevitable transgression of what is ordered in Article 190, given that, in the specific case, the so-called 'final bill', being materially different, was not consulted either. It must be clear, however, that, if this second violation had not occurred, this fact would have cured the defect that already invalidated the enactment of Law No. 7013. For all the foregoing, it is appropriate to declare unconstitutional and therefore absolutely null the normative provision that is the object of this action" (see judgment of the Constitutional Chamber number 1633-93 of 14 hours 33 minutes on April 13, 1993).

The complainants argue that the law called "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms," which became Law No. 9544 of May 22, 2018, reformed in its Article 1 numeral 226 of the Organic Law of the Judicial Branch, which establishes functions and competences for departments of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) regarding the transfer of contributions from the Disability, Old Age, and Death Regime that this constitutional body administers to augment that of the Judicial Branch. They add that, additionally, Article 234, reformed by Law No. 9544, provides, in pertinent part:

"Article 234- Persons who have worked in the Judicial Branch and who have ceased in the exercise of their positions without having obtained retirement or pension benefits shall not be entitled to have the amount of the contributions with which they have contributed to the formation of the Judicial Branch Retirement and Pension Fund returned to them.

However, they shall be entitled to have the amount of the worker, employer, and state contributions with which they have contributed to the formation of the Judicial Branch Retirement and Pension Fund transferred, through an actuarial liquidation, to the Costa Rican Social Security Fund (CCSS), or to the institution administering the basic regime in which they will be granted retirement or pension. (…)" (the highlights are from the brief).

They state that, from both norms, the possibility is clearly concluded that a State official who has contributed to the Disability, Old Age, and Death Regime of the CCSS, may transfer the amount of their contributions from that general pension fund protected by the Political Constitution in its Article 73, to the Judicial Branch Regime, given that the CCSS has the new obligation to remit the amount of those contributions (worker, employer, and state) through an actuarial liquidation, in favor of the Judicial Branch Fund. They add that, on the other hand, Articles 227 and 233 reformed by the aforementioned Article 1 of Law No. 9455 [sic: 9544], also provide in paragraph 1, in pertinent part, that:

"Article 227- The judicial servant who becomes permanently disabled for the performance of their position or job, as declared by the Disability Status Qualification Commission (Comisión Calificadora del Estado de Invalidez) of the Costa Rican Social Security Fund (CCSS) or by the body that that institution designates, and who has worked for five years or more for the Judicial Branch, shall be separated from their post with a permanent retirement. (…)" (the highlights are from the brief) "Article 233- The enjoyment of the benefit shall be suspended for the retired person during the time they are receiving any other salary from the State, its institutions, and from the municipalities.

This limitation shall not apply when they teach lessons in higher education institutions.

When the benefit has been granted for disability and the person wishes to re-enter the labor sector, they must request the respective permission and have the approval of the Disability Status Qualification Commission or of the body that the Costa Rican Social Security Fund (CCSS) designates, provided that the new activity is different from that for which they were declared disabled" (the highlights are from the brief).

They argue that, with this new regulation, competences were attributed to the "Disability Status Qualification Commission of the Costa Rican Social Security Fund" without the CCSS having been consulted on the respective advisability and opportunity, and the transfer of contributions from the General Pension Regime that the Costa Rican Social Security Fund administers was authorized, in accordance with what the Political Constitution provides. They consider that the challenged law is null for unconstitutional because they deem that consultation to the CCSS was mandatory, in light of Articles 73, 74, 188, 189, and 190 of the Political Constitution, but in the legislative process, none of the substitute texts approved by the Special Committee —on September 13, 2016, and on March 29, 2017— were consulted to the CCSS, nor the final substitute text approved on July 29, 2017, which was reported with an affirmative majority opinion published in the Official Gazette La Gaceta, Supplement No. 189 of August 4, 2017; thus failing to comply with the mandatory consultation rule required in the preceding constitutional mandates, despite the fact that those normative proposals affected the competences constitutionally assigned to this constitutional body. They refer that the regulations approved within the legislative body changed the organization and competences of the CCSS as an autonomous institution, also considering that, with the reform introduced by the challenged Law, the retirement and pension fund that the Costa Rican Social Security Fund administers can be directly and adversely affected. They argue that, for the same reasons, Transitory Provision II of Law number 9544 is challenged as unconstitutional, which provides:

"TRANSITORY II.- For the officials of the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, this reform shall not be applied to their detriment and, at all times, their rights acquired in good faith must be respected. However, they are authorized to request, in the terms set forth in Articles 226 and 234 of this law, the return of the worker, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, in order that they may be transferred to the Disability, Old Age, and Death Pension Regime, administered by the Costa Rican Social Security Fund (CCSS), if they so wish" (highlights from the brief) They argue that, again, there is a direct and serious breach of Articles 73, 74, 188, 189, and 190 of the Political Constitution, in violation of the autonomy of the CCSS as the institution that protects the Social Security Regime protected by the Constitution. They state that, furthermore, in Law 9544 there is an unconstitutionality due to omission of the mandatory consultation to the state banks and, in that sense, they argue that, based on Article 190 of the Fundamental Charter, the same defect is challenged as the one just analyzed, only now because the omission of consultation occurred in relation to the state banks which, by constitutional norm, are autonomous institutions. They point out that, with the modification of Article 240 bis, introduced by Law No. 9544 challenged here, the autonomy of state banks was affected, since this norm provides in its second paragraph the following:

"(…) Said Board is authorized to place the resources of the Judicial Branch Retirement and Pension Fund, in the following investment possibilities:

• a)Up to twenty-five percent (25%) of the Fund, in credit operations through state banking institutions, cooperatives, savings banks, associations, and unions of servants, retirees, or pensioners of the Judicial Branch, that have the platform that allows them to administer said resources and are supervised and authorized by the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras, Sugef), for the purpose of financing loans for construction or improvement of housing and other social purposes for their associates, according to the regulations that must be issued for this purpose, as well as for the purchase of land, expansion, remodeling, reinforcement, and construction of buildings destined for the Judicial Branch, in accordance with the regulations issued for this purpose.
• b)At least thirty percent (30%) of the Fund, in securities issued by the public sector.
• c)In financial instruments issued by trusts:
• 1)With financial entities, public or private, to place resources destined for personal loans for micro-enterprises and housing.
• 2)With financial entities, public or private, for participation in the development of productive and infrastructure projects of national or social interest" (the highlights are from the brief).

They argue that this norm establishes serious limitations on the administrative autonomy that, constitutionally, the state banks exercise under the aegis of constitutional Articles 188, 189, and 190; note that the new rules limit their credit possibilities by subjecting them to percentage investment obligations that directly affect their autonomy. They add that it must be considered that decisions in this matter are technical and are protected by the banking autonomy regime and, nevertheless, none of what was regulated nor its legal, financial, accounting, or other scopes were consulted to the banking entities that make up the National Banking System; which is why this omission makes the entirety of the law null, for unconstitutional, by breaching, once again, the mandate of numeral 190 of the Political Constitution. B) They consider that, in form, in addition to what was indicated above, Law 9544 contains defects of unconstitutionality due to a violation of the legislative procedure. In that sense, they indicate that, based on the consideration that the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa) is a parameter of constitutionality and, furthermore, has constitutional rank in accordance with the provisions of Article 121, subsection 22) of the Political Constitution and Article 73 of the Law of Constitutional Jurisdiction, its non-compliance in the legislative processing of bills of law, agreements, and other matters of its competence within the legislative body translates into a gross violation of the constitutional block (bloque de constitucionalidad) that makes them unconstitutional and, therefore, absolutely null. They point out that these Regulations of the Legislative Assembly and their reforms regulate the constitutional procedure for the approval of laws, which are protected under the protection of constitutional Articles 73, 105, 106, 119, 121, 123, 124, 129, 167, 188, 189, 190. They indicate that, based on the content and mandate of the Regulations of the Legislative Assembly in force at the time of the legislative processing of what is now Law number 9544, the following allegations of unconstitutionality are made, because the deputies disregarded its mandates: 1) violation of Article 121, subsection 22) of the Political Constitution and Articles 35, 153, 205, 208, and 208 bis of the Regulations of the Legislative Assembly because the procedure of Article 208 bis was approved in the second part of the session. They recall that constitutional Article 121, subsection 22), protects the competence of the Legislative Assembly to regulate its own internal regime and, in development of this self-regulatory power, the Regulations of the Legislative Assembly itself, in its "TITLE VI" regarding "Reforms to the Regulations," in its Article 207, provides:

"ARTICLE 207. Reforms to the Regulations.

Any total or partial reform to these Regulations, as well as the interpretation of any of its provisions, requires, for approval, two-thirds of the votes of the total members of the Assembly.

The reforms must be carried out using the procedure established in Article 124 of the Political Constitution." They recall that the violation or non-compliance with the legislative regulations causes the nullity —for unconstitutionality— of the law, as it is a parameter of constitutionality in the terms established in Article 73 of the Law of Constitutional Jurisdiction, which provides in its literal wording:

"Article 73. An action of unconstitutionality may be brought:

(…)

• c)When, in the formation of laws or legislative agreements, any substantial requirement or procedure provided for in the Constitution or, as the case may be, established in the Regulations for Order, Direction, and Internal Discipline of the Legislative Assembly is violated" (the highlights are from the brief).

They argue that, in the specific case, the alleged unconstitutionality occurred because —directly— Article 207 of the Legislative Regulations was violated, and this defect makes Law No. 9544 null, because in ordinary plenary session No. 37 of June 30, 2016, a motion of order (moción de orden) was heard —via Article 208 bis—, with the intention of creating a special procedure for processing case file 19.922, which was titled: "Law to rationalize public spending"; such motion of order was heard in the so-called "Second Part of the Session" of the Plenary. They add that, furthermore, it is not possible to approve a special procedure through a motion of order. They consider that, to understand the foregoing, it must be remembered that Article 207 provides:

"Processing of parliamentary agreements Bills for the issuance of agreements concerning the internal regime of the Assembly, as well as draft agreements that must be taken in use of the powers listed in subsections 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23), and 24) of Article 121 of the Political Constitution, must be presented in writing, signed by the deputy or deputies who initiate or endorse them; or by the Minister of the respective branch, when the bill is an initiative of the Executive Branch. Likewise, they must be read by the Secretariat." The Assembly will hear and resolve them, without adhering to the procedures set forth in the preceding article (…)” (the highlighting is from the brief).

They report that the foregoing regulatory provision was interpreted by the Presidency of the Legislative Assembly through agreement number 4084, adopted in session number 24 of June 10, 1999 and published in La Gaceta No. 129 of July 5, 1999; on which occasion it established a rigorous procedure for the reform or amendment of the Regulations of the Legislative Assembly, not only in safeguarding democratic principles, but also publicity and transparency, of the parliamentary majorities and minorities, by having the possibility of presenting motions that may be heard, after which voted on and even appealed by all the deputies making up the Legislative Assembly, without discrimination or any limitation whatsoever (highlighting from the brief). They add that, in this regard, while article 208 establishes the principle of “singular inderogability (inderogabilidad singular)” insofar as it provides that: “Except in cases where the Regulations themselves so expressly establish, motions tending toward their non-application to specific cases shall not be admissible”; in “article 208 bis ‘Special Procedures (Procedimientos Especiales)’, the exception to the foregoing principle is regulated, in the following terms:

“By means of a privileged motion (moción de orden), approved by two-thirds of its votes, the Legislative Assembly may establish special procedures for processing reforms to its Regulations and bills of law whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the vote required for their approval. Every special procedure must respect the democratic principle, and safeguard the right of amendment (derecho de enmienda)” (Thus added through agreement No. 6231-04-05 of March 8, 2005) (the highlighting is from the brief).

They point out that reforms to the Legislative Regulations are carried out by means of “agreements,” such that the special procedure of article 208 bis cannot be approved by privileged motions because it is a reform to the Regulations of the Legislative Assembly. In that sense, they recall that this regulatory body, in its article 153, permits privileged motions, “unless these Regulations expressly forbid it”; and it is that, as provided in article 35 of those regulations, a rigorous order is established in the “order of the day (orden del día)” of the Legislative Plenary in which the first part of the session is reserved for, among other matters, the internal governance (régimen interno) of the Legislative Assembly or, which is the same, the interna corporis of the Assembly, precisely in safeguarding of the constitutional rule of publicity and protection of the rights of the legislators themselves, such as the right to vote, to discussion, to amendment and democratic participation in a broad, public and transparent manner, and the second part was reserved – exclusively – for the discussion of the first and second debates of bills of law in process. They state that, in this sense, it must be taken into account that, in exercise of its powers of direction granted under the protection of article 27 of the same regulations, in the Minutes of Plenary Session No. 047 of July 29, 2004, the President of the Legislative Assembly issued a resolution – whose criterion was not appealed and therefore remains in force – according to which, the Presidency instructed the Secretariat of the Board of Directors (Secretaria del Directorio) so that in the chapter on internal governance and following the reforms to the Regulations, motions may be placed by type, by species of motions: under point a) reforms to the Regulations and under point b) privileged motions, it being that, within the privileged motions would appear the postponement motions (mociones de posposición) that are indicated there that there are none, then the privileged motions in accordance with Article 153, then the extensions of special commissions and, lastly, the motions to dispense with procedural formalities (mociones de dispensa de trámites), this so that each of the male and female deputies know where the different privileged motions will be placed in the chapter on internal governance, it being indicated that from that moment, the Secretariat of the Board of Directors shall have clear instructions so that the order of the day is structured in the manner that appeared at that moment in the order of the day. They state that, in the case under study, to correctly visualize what occurred, one may consult the order of the day of the Legislative Plenary for that Ordinary Session No. 37 of June 30, 2016, for the knowledge of the deputies themselves as to how the parliamentary agenda was distributed, it being surprisingly confirmed that the privileged motion was presented, which was not even processed – by the principle of parallelism of forms (principio de paralelismo de las formas) – within the internal governance, since for case file 19.922, the Legislative Regulations were being tacitly repealed, with a serious affectation to the interested sectors by legislating behind the backs of the Costa Rican people, transgressing the most sacred democratic principles that have characterized it. They argue that the hearing and processing of the motion via article 208 bis of the Assembly Regulations in relation to case file No. 19.922 should have been heard in the “First Part of the Session,” this in safeguarding of the constitutional rule of publicity and protection of the legislators’ rights – such as the right to vote, discussion and democratic participation in a broad, public and transparent manner. On the contrary, they point out that having done so in the “Second Part of the Session” transgresses article 121, subsection 22) of the Constitution, given that, in a direct manner, article 207 of the Legislative Regulations was violated. They contend that the Presidency of the Legislative Assembly, in concert with the Party Caucus Leaders (Jefes de Fracción) proposing the privileged motions, did not adhere to the Legislative Regulations – in order to approve the article 208 bis motions processed on that occasion – nor to the provisions of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) which in its article 73, subsection c) conditions the constitutional legitimacy of laws and legislative agreements upon substantial compliance with what is provided for “... in the Regulations for Order, Direction and Internal Discipline (Reglamento de Orden, Dirección y Disciplina Interior) of the Legislative Assembly.” They highlight that, in this case, what was violated was the “legislative procedure (procedimiento legislativo)” by reason of the principle of parallelism of forms, given that, via an article 208 bis motion to bill 19.922, the procedure and internal regulations established by the legislators themselves were flagrantly transgressed, precisely in safeguarding of democratic principles, respect for minorities, publicity, transparency, in relation to the processing of the legislative agreement that implies the approval of said special procedure. They state that, based on the foregoing, they allege the procedural defect (vicio de procedimiento) that generates the absolute nullity of everything acted upon for infringing the democratic principles of transparency, participation, parallelism of forms, legal certainty (seguridad jurídica), legitimate expectations (confianza legítima), which must be respected without any violation whatsoever by the Legislative Assembly, it being that, in this specific case, that which was acted upon by the legislators did not comply with the provisions of articles 35, 205 and 207 of the Legislative Regulations, nor with the binding interpretation of the Presidency, thus violating the democratic principles of transparency, participation and respect for legislative majorities and legislative minorities (article 121, subsection 22 of the Political Constitution). They add that, for these reasons, they request that the unconstitutionality of Law number 9544 be declared because it was approved through a vitiated legislative procedure, in direct and constant contravention of the Regulations of the Legislative Assembly, as indicated, considering that that null approval of the procedure provided for by article 208 bis allowed the law to come into legal existence that created an unequal, disproportionate, confiscatory retirement regime (régimen jubilatorio) that renders the right to retirement nugatory, which, in their opinion, is not even consistent with the minimum established in the Disability, Old Age and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). 2) Unconstitutionality by omission of the qualified voting necessary for the application of the procedure of article 208 bis of the Regulations of the Legislative Assembly. They recall that these regulations provide for various legislative procedures such as delegating legislative power to Full Legislative Commissions (Comisiones Legislativas Plenas), the abbreviated procedure (procedimiento abreviado), the route of article 41 bis of the Regulations and, finally, special procedures, grounded in article 208 bis of the regulations. They argue that, in relation to this last scenario, it involves a concrete regulation for each case, exceptional to the other scenarios, whose definition requires the consensus of the members since, for its establishment, a qualified majority is required, it conditions that the design that is approved must respect democratic principles – of participation and publicity –, safeguard the rights of the deputies, and finally, its application is not possible for bills and matters that must be approved by a qualified majority – that is, at least 38 votes. They warn that this is the spirit of the legislator when it approved numeral 208 bis of the Regulations of the Legislative Assembly; it being noted that the Special Commission (Comisión Especial) that heard the substantive motions (mociones de fondo) presented to the bill “Addition of an article 208 bis to the Regulations of the Legislative Assembly, legislative case file No. 15,751,” rendered a unanimous affirmative opinion (dictamen), setting forth the reasons considered for endorsing before the Plenary the proposal that forcefully clarified the issue of the voting majority, as a determining element for the application of the special legislative procedure – via article 208 bis motion – by providing, clearly and plainly, the following:

“For such reasons it is deemed appropriate to incorporate a new article 208 bis to the Regulations of the Legislative Assembly, by which it is sought that in those cases where the will of the majority of the legislators converges, let it be this majority decision that sets the parameters to be followed in each case, while expressly excepting from this procedure those bills of law that for their approval require 38 votes, as well as those having to do with the approval of administrative contracts, the sale of State assets or the opening of its monopolies, and international treaties and conventions” (The highlighting is from the brief).

They add that, based on the foregoing discussions, the Legislative Assembly approved agreement No. 6231-04-05 on March 8, 2005, whose final and currently binding text provided:

“SOLE ARTICLE: - Let an article 208 bis be added to the Regulations of the Legislative Assembly, which shall read as follows:

Article 208 bis. - Special Procedures By means of a privileged motion, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures for processing reforms to its Regulations and bills of law whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the vote required for their approval. Every special procedure must respect the democratic principle, and safeguard the right of amendment” (the highlighting is from the brief).

They argue that the unconstitutionality that is alleged in relation to Law number 9544 arises because article 208 bis of the Assembly Regulations was applied, provided only for matters whose required voting is a simple majority (half plus one of the legislators present), without noting that, in this matter, a vote adopted by a qualified majority (at least 38 votes in favor of the total elected legislators) was required, because the Full Court (Corte Plena) had expressed a negative criterion to the substitute texts (textos sustitutivos) adopted by the Special Commission. They recall that, pursuant to the mandate of numeral 167 of the Political Constitution, to depart from the Court’s criterion, the legislators had to vote on this matter with a qualified majority of 38 votes. They point out that, through official letter SP-118-17 of April 26, 2017, the Special Commission designated for the analysis and processing of legislative case file number 19.922 was notified of the agreement adopted by the Full Court in Article XXIX of ordinary session number 8-17 of April 24, 2017, in which it expressed its negative criterion, at that time, regarding the second substitute text adopted by the indicated Commission in ordinary session number 15 of March 29, 2017. Moreover, they contend that through official letter SP-253-17 of August 10, 2017, the Full Court communicated to the Legislative Board of Directors, the negative criterion adopted in Article XXX of ordinary session number 26-17, held on August 7, 2017, on this occasion regarding the third substitute text approved and favorably reported on by the Special Commission in session number 23 of July 27, 2017. They indicate that, in both criteria of the Supreme Court of Justice (Corte Suprema de Justicia), it was expressly considered that the proposed substitute texts did directly affect the organization and functioning of this Branch of the Republic, which is why they spoke out against those bills. In addition to the foregoing, they argue that, in article 239 of Law number 9544 challenged herein, the internal structure of the Judicial Branch (Poder Judicial) was modified insofar as it creates the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) as an organ of the Judicial Branch, which shall have complete functional, technical and administrative independence to exercise the powers and authorities granted to it by law. They point out that, according to the content of that article, the Administrative Board is inserted into the Judicial Branch, as an organ “dependent” on the Full Court, but furthermore the law endows it with sufficient legal personality (personalidad jurídica) for the administration of the fund, which empowers it to act in representation of the Judicial Branch in matters referring to the actions of the Retirement and Pension Fund of this Branch. They indicate that this task, before the reform, was held by the Superior Council (Consejo Superior) under the terms of article 81, subsection 12) of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), only without the endowment of this instrumental legal personhood. They consider that the foregoing modification does affect the competence and organization of the Judicial Branch because it creates an internal dependency, and because this Administrative Board was granted instrumental legal autonomy vis-à-vis the Court, which excludes it from the actions inherent to the action of the superior hierarchical authority, in this case, of the Court, under the terms provided in numerals 102 and 83 of the General Law of Public Administration (Ley General de la Administración Pública), to such an extent that it is endowed with judicial and extrajudicial representation to act in the name of this Judicial Branch; a legal phenomenon that had not occurred until this moment. They point out that, in addition to the error in the application of a special legislative procedure pursuant to article 208 bis of the Assembly Regulations in a matter that exceeds the competence of that numeral given that a qualified and not a simple vote was required, the vote given in the Legislative Plenary on this matter was reviewed and it was verified that bill 19.922 was voted on with a simple majority, in both votes: in the first debate (primer debate) that took place in extraordinary session number 14 of October 30, 2017, the Plenary approved the affirmative opinion rendered by the Special Commission with 31 votes in favor and 7 against; and in the second debate (segundo debate) that took place in ordinary session number 163 of April 19, 2018, it was approved with 34 votes in favor and 9 against, all the foregoing despite the fact that what was required was a vote of 38 votes in favor for the vote to be constitutionally valid. They state that article 167 of the Constitution provided for prior and somewhat binding consultation, to the Supreme Court of Justice, in relation to the “discussion and approval of bills of law that refer to the organization or functioning of the Judicial Branch”; a criterion that can only be disregarded by the legislators through a qualified vote, that is, of two-thirds of the total legislators, namely, with a minimum of 38 votes. They argue that, in this sense, for them there is not the slightest doubt that the Constitutional Chamber (Sala Constitucional) has understood that consultation with the Judicial Branch is necessary under the terms of article 167 of the Political Constitution when its administrative organization is reformed and not only that which concerns the jurisdictional function. They consider it pertinent to have as a reference the considerations expressed by the Constitutional Chamber, in understanding:

“... that a bill of law deals with such aspects when it contains in its articles explicit norms that provide for the creation, substantial variation or suppression of strictly jurisdictional organs or of an administrative nature attached to the Judicial Branch or else creates, ex novo, substantially modifies or eliminates materially jurisdictional or administrative functions...” (Judgment number 2008-5179 of 11:00 a.m. on April 4, 2008) (the highlighting is from the brief).

They warn that the constitutional requirement established in article 167 of the Constitution of the qualified vote in order to be able to depart from the negative criterion expressed by the Court in its last opinion was not fulfilled, considering that thereby that numeral was violated as well as the rule provided in article 208 bis of the Regulations since, according to them, a qualified majority was required to disregard the Court’s criterion, which in their opinion is an insurmountable defect (vicio insalvable) and causes the nullity of the law for unconstitutionality. In addition to the foregoing, they point out that the Legislative Plenary approved an unconsulted text since the final text, basis for the discussion in the plenary, was the third substitute text, approved and reported on by the Special Commission in ordinary session number 23 of July 27, 2017, regarding which the mandatory prior consultation with the Supreme Court of Justice subsequent to the affirmative majority opinion was not carried out, for which reason they consider that Law 9544 is unconstitutional with respect to this aspect as well. 3) Unconstitutionality by omission in failing to publish the finally approved text. On this point, the claimants argue that neither the Special Commission in charge of the processing and analysis of the bill of law in case file number 19.922, nor the Legislative Plenary, published the substitute texts in the manner provided for by the special procedure determined for this matter; consequently, they consider that the unconstitutionality of the approved law (9544) is configured due to a defect in the legislative procedure under the terms established in article 73, subsection c) of the Law of Constitutional Jurisdiction in relation to article 121, subsection 22) of the Political Constitution. They point out that in session number 037 of June 30, 2016, the Legislative Plenary heard and approved the Privileged Motion according to which, in application of numeral 208 bis of the Regulations of the Legislative Assembly, with a vote in favor of 49 votes and 1 against, a special procedure or fast track was approved for the processing, discussion and report of the bill of law processed in case file 19.922 denominated “Law to Rationalize Public Spending (Ley para Racionalizar el Gasto Público)”; likewise, the creation of a Special Commission to which such task was delegated was ordered. They highlight that, in numeral 2, subsection h) of the indicated agreement, the obligation was expressly established – for the indicated Commission – to publish any substitute text that it approved in the course of the discussion, in the following terms:

“h.- If during the examination of the case file in its processing in commission a substitute text motion is approved or when the commission agrees upon changes that substantially modify the bill of law, the Presidency of the Commission shall request the Legislative Board of Directors to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity and the examination of the bill shall be suspended, also proceeding (sic) to carry out the corresponding consultations. If after eight business days no response is received to the mandatory consultations referred to in this subsection h), it shall be understood that the consulted body has no objection to make to the bill” (the highlighting is from the brief).

They add that on September 5, 2016, the Special Commission of “legislative case file 20.035, Entrusted to examine and report on the bill: ‘Law for Comprehensive Reform of the Various Pension Regimes and Related Norms (Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normas Conexas), Case File No. 19.922’” was constituted. They argue that in the first session of this Special Commission, number 1 of September 13, 2016, by unanimous vote, the base text for discussion was substituted – now aimed solely at the comprehensive modification of Title IX of the Organic Law of the Judicial Branch, number 8 of November 29, 1937 and its reforms –; a text that was never published in La Gaceta, this despite the fact that the text had been substantially varied, which is a matter of simple verification between the original base document as defined by the Plenary and the one substituted by the Special Commission. They reiterate that this text was not published, as ordered by the article 208 bis motion that established its procedure; first omission of publication in relation to the first substitute text approved in the Special Commission. They add that, subsequently, in ordinary session number 15 of Wednesday, March 29, 2017, that Special Commission approved the second substitute text; an occasion on which it involved a proposal prepared by SUPEN, it being that – this second substitute text – was also not published under the terms required in subsection h) of article 2 of the privileged motion under article 208 bis of the Regulations of the Legislative Assembly, which established the rules for its procedure. In this sense, they consider that the words of former deputy Piszk Feinzilber in relation to this point are illustrative:

“First of all, don Jorge, I was not distracting you, I raised my hand and I do not think that is sufficient reason… of course it is.

Secondly, when there is a substitute text and this must be very clear, the involved parties must be consulted again. I do not see what the problem is. I do not know if this will have to be published or not published, but evidently since all of us here are working in good faith, it will have to be published and the interested sectors will have to be called again so that they can express their views.

No one here is working under the table, far from it. Thank you” (The highlighting is from the brief).

They maintain that, from the very words of Deputy Piszk Feinzilber, the lack of publication of the first text is concluded and, consequently, what was expressly provided in the article 208 bis motion was not applied, whereby they consider that article 121, subsection 22) of the Constitution was transgressed, as well as the constitutional principles of publicity and due process (debido proceso) that should have been followed expressly. They add that, despite the warnings of the legislator, this second substitute text was also not published (second omission of publication in relation to the second substitute text approved in the Special Commission). They reiterate that it does not appear in the legislative file, despite having been ordered, expressly in the second case, that such publication was carried out; there is no evidence in that regard. They add that, finally, in ordinary session number 23 held on July 27, 2017, the Special Commission approved privileged motion number 1-23 to dispense with the reading of the substitute text presented; immediately thereafter it also approved privileged motion number 2-23 which consisted of the approval of the substitute text and, immediately, it was favorably reported on with 8 votes and 1 against. They warn that, once again, the publication of this third substitute text approved – and in this case also reported on – by the Commission was omitted, it being necessary to take into account that what was published were the reports (dictámenes) of the Report-Writing Commission (Comisión Dictaminadora), not the substitute text, whereby, once again, the provisions of the Political Constitution and the Legislative Regulations were violated regarding the procedure that case file 19.922 should have followed. They draw attention to the fact that what was published in Supplement (Alcance) No. 189 of August 4, 2017, was the Affirmative Majority Report (Dictamen Afirmativo de Mayoría), approved on July 27, 2017, and the Minority Report was published in Supplement No. 190 of August 7, 2017. They note again that none of the substitute texts that the Special Commission approved was published as expressly provided by the special procedure created via article 208 bis motion; not even the third one which was reported on without the consultations that the Constitution mandates in articles 167 and 190, which they consider constitutes a transgression of the principle of publicity that governs legislative procedures and which is necessary to alert the entirety of the population about the proposal under discussion which, to that extent, is an expression of the principle of legal certainty. They consider that the defect could not be cured by the fact of publishing the substitute text after being approved in first debate, because the publication requirement must allow all Costa Ricans to know about the bill of law in order to express their views and opinions, as is their constitutional right protected by article 124 of the Constitution and article 208 bis of the Regulations of the Legislative Assembly, in relation to article 73 c) of the Law of Constitutional Jurisdiction. They argue that, in relation to this aspect, in judgment number 2012-004621 of 4:00 p.m. on April 10, 2012, the Constitutional Chamber indicated:

“VII- This Constitutional Court (Tribunal Constitucional) warns that when the Legislative Assembly, via a privileged motion under article 208 bis of the Regulations, creates a special procedure, the application and observance thereof must be absolutely rigorous and strict. The special procedure created through article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it shall, always, be an exception. The duty of the various legislative instances to adhere, zealously and scrupulously, to the special procedure previously designed avoids any infringement of the principles of legal certainty (emphasized by this Court in Decision (Voto) No. 398-2005 of 12:10 p.m. on January 21, 2005) and democratic principle. Consequently, in the face of a special and rapid legislative procedure, the deadlines, stages and requirements previously established must be subject to a restrictive and rigorous interpretation, it being that the margin of admissible flexibility vis-à-vis ordinary procedures, through extensive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by an aggravated majority.

VIII- ESSENTIAL DEFECT OF THE PROCEDURE OF AN EVIDENT AND MANIFEST NATURE IN OMITTING THE PUBLICATION OF A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMISSION THAT, TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. On the other hand, the consulting deputies state that, despite what was stipulated in subsection I.2.h., of the special legislative procedure, during its processing the publication of a series of changes made to the bill was omitted that reduced the total expectation of the school salary that is exempt from the payment of income tax covering both public and private workers.

Consequently, from reading the content of the substantive motions approved in the special commission, this Constitutional Court considers, unanimously, that there was an essential defect of the legislative procedure of an evident and manifest nature that broke the principles of publicity and equality in omitting their publication, given that, together, they caused a substantial modification of the original text” (the highlighting is from the brief).

Consequently, and applying the foregoing to the specific case, the claimants consider that numerals 121, subsection 22) and 124 of the Political Constitution and article 208 bis of the Legislative Assembly were violated, which makes Law number 9544 absolutely null in its entirety. In addition to the claims of unconstitutionality based on form, the claimants raise other arguments through which they consider that Law 9544 is unconstitutional on its merits. They refer to violations of the principles of reasonableness, proportionality and equality. They contend that the deductions approved by this law are totally burdensome, unreasonable and confiscatory, in addition to being harmful to the principle of equality for those who work in the Judicial Branch. In the first place, they refer to the principles of reasonableness and proportionality.

• A)Analysis of the modifications to the substantive elements of the regime: they add that the reform introduced to the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) through Law 9544 produced a disproportion and, consequently, unequal and irrational treatment against active employees, pensioners, and retirees who contribute to said regime, in comparison with persons who contribute to the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte). It indicates that this conclusion is reached after conducting a comparative analysis of the benefit profile for both regimes, from which, without a doubt, the Judicial Branch Retirement and Pension Regime now proves to be disproportionate and unreasonable due to its effects in relation to the very high burdens imposed on its contributors and “beneficiaries”—far above those imposed on persons contributing to the IVM—and who are required to belong and remain in a regime throughout their entire working life with the Judicial Branch. They point out that, in the case of judicial employees, with these reforms that have been made, at the moment they retire or receive a pension, the benefits obtained are much lower, and this is so because 62% of the Judicial Branch workforce will receive an income even lower than if they had contributed to the IVM, and the rest of the employees, even though under the Judicial Branch Regime they may nominally receive a higher pension or retirement benefit, percentage-wise it is lower, and this repeats due to the very high and burdensome charges imposed in this regime compared to the IVM. They add that the reform introduced through Law 9544 increased the retirement age to 65 years old, with a minimum of 35 years of service and with a gross retirement amount equivalent to 82% of the last 240 salaries received, given that, with such modifications, in principle, it was “intended” to equate the requirements of the Judicial Branch Retirement and Pension Regime with the Disability, Old Age, and Death Regime; however, in the first, the contribution amounts are 4 times higher than the second, and the benefits are much lower. In this regard, they recall that article 224 of Law 9544 establishes that:

"The judicial employees with twenty or more years of service in the Judicial Branch may opt for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (IPC), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years" (highlights are from the brief).

For its part, they mention article 5 of the Regulations of the Disability, Old Age, and Death Insurance of the CCSS, according to which:

"The insured person who reaches 65 years of age has the right to an old-age pension, provided they have contributed to this Insurance with at least 300 (three hundred) quotas" (highlights are from the brief).

Based on the foregoing, they argue that, with clear clarity, a first difference between both regimes can be observed, since, when comparing the eligibility requirements and number of contributions, it is found that Judicial Branch workers are asked for two requirements to access an ordinary retirement: a) reach 65 years of age (the same requirement as in the IVM) but, b) with a total of 420 contributions (35 years). They argue that, unlike persons who contribute to the IVM where only 300 contributions are required, Judicial Branch employees are required to contribute 40% more to access a retirement in its ordinary modality. They state that the presentation of this claim of unconstitutionality is based primarily on the technical actuarial report prepared by Mr. Esteban Bermúdez, who serves as the actuary of the Teachers' Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Magisterio) and who, at the request of the Costa Rican Association of the Judicature (ACOJUD), prepared a technical report, which has been provided to the Chamber. They add that, with the reform introduced to the Judicial Branch Retirement and Pension Regime through Law No. 9544 challenged here, a disproportion and, consequently, unequal and irrational treatment is produced for the persons who contribute to said Regime, in comparison with persons who contribute to the Disability, Old Age, and Death Regime. They argue that, next, a comparative analysis of the benefit profile for both regimes will be conducted, from which it can be concluded that, for the vast majority of persons contributing to the Judicial Branch Regime, it is disproportionate and irrational to have to belong to a regime in which, throughout their entire working life, they make contributions far higher than those of persons contributing to the IVM and; however, at the end of their working life, they receive much lower benefits, which is so because, with the reform introduced through Law 9544, the retirement age was increased to 65 years of age, with a minimum of 35 years of service and a gross retirement amount equivalent to 82% of the last 240 salaries received. They indicate that the foregoing equates requirements to obtain the right to retirement in both regimes; however, it has the aggravating factor that the contribution amounts to the Judicial Branch Retirement and Pension Fund are four times higher than the IVM and the benefits are much lower. They add that when comparing the eligibility requirements and number of contributions, it is found that Judicial Branch workers are asked for two requirements to access an ordinary retirement, being 65 years of age, the same as in the IVM, but with a total of 420 contributions (35 years), which is an important difference in relation to persons who contribute to the IVM where only 300 contributions are required; that is, Judicial Branch employees are required to contribute 40% more than IVM employees to access a retirement in its ordinary modality. They add to the foregoing that, to calculate the monthly allowance in the Judicial Branch Retirement and Pension Regime, the average salary of the last 20 years is taken into account (the same requirement as in the IVM) and, to that average, 82% is applied, the result being the gross retirement amount, as established by article 224 of Law 9544 itself. They indicate that, for its part, in the IVM, the monthly allowance is calculated in accordance with what is established in article 5 of the Regulations of the Disability, Old Age, and Death Insurance in accordance with articles 24 and 25 of that same regulation:

"Article 24: The amount of the pension for disability, old age, or death of an active worker comprises a basic amount as a percentage of the average salary or income indicated in the previous article, for the first 20 (twenty) years contributed (240 -two hundred forty- quotas contributed) or those held in case of disability or death, provided the requirements of articles 6 and 18 of this Regulation are met.

To place the insured person in the level indicated in the following table, the average salary or income of the last sixty months contributed, or those available in cases of disability and death, updated for inflation, will be taken:

Both in the case of old age and disability, an additional amount equivalent to 0.0833% of the reference average salary or income is included for each month contributed in excess of the first 240 months" (highlights are from the brief).

Now then, they add that, unlike the system chosen in Law number 9544, the IVM regime establishes a benefit for postponement of the pension or retirement in the terms of numeral 25 of the Regulations, which represents an additional percentage in the pension amount, which it does in the following terms:

"Article 25. The insured person who meets the requirements to be entitled to the enjoyment of an old-age pension shall have the right to an additional pension for postponement of retirement, from the date on which they have met the legal and regulatory requirements. This additional pension shall consist of 0.1333% per month of the average salary calculated according to article 23.

The amount of the additional pension for postponement of retirement, added to the amount of the ordinary pension calculated according to article 24 of this Regulation, may not exceed 125% of the indicated average salary or income." They point out that when comparing both calculation methods for the allocation of the monthly amount in each of the analyzed regimes, it is concluded that in the Judicial Branch regime, the average of the last 240 contributions is taken, and 82% is applied to that to determine the gross retirement allowance; meanwhile, for the IVM, a basic amount is taken into consideration, ranging between 43% and 52.5%, and to this percentage, a 0.0833% is added for each month contributed starting from the 240th monthly contribution, the latter as a seniority bonus for having contributed beyond the 240 quotas required as a minimum, in addition to an additional amount for postponement, in the case of a woman if she had reached retirement age at 63 years and 2 months, and in the case of a man at 63 years and 3 months. They argue that, in this way, if in the Judicial Branch a person meets the age requirement (65 years) and the years of service requirement (35 years), they will be entitled to an ordinary retirement obtained by applying 82% to the average of the last 240 salaries; for its part, under the same conditions, if a person who contributed to the IVM meets the age requirement (65 years) and has contributed for 35 years, they will be entitled to an ordinary retirement obtained by applying to the average of the last 240 salaries, a basic amount ranging between 43% and 52.5%, plus 0.0833% for each extra month contributed after the 240 contributions, that is, they will be entitled to 14.994%, as a seniority bonus for having contributed 180 extra quotas, in addition to 2.9326% if it is a woman and 2.7993% if it is a man, resulting from the recognition for postponement. They point out that, at first glance, it would seem that the 82% amount established by the Judicial Branch reform is higher than the amounts given by the IVM; however, all Judicial Branch pensioners have three expenses that IVM pensioners do not have, and these are what make the applied reform become disproportionate in comparison with the IVM; additional expenses or deductions that consist of: a) the contribution to the Pension Administration Board (Junta Administradora de Pensiones) (five per thousand of the pension) in accordance with what reformed article 239 regulates, which states: "...It shall be financed by a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions charged to the Fund...”; b) the contribution to the fund once retired of 13%, from which IVM pensioners are exempted. On this matter, article 236 subsection 1) of Law 9455 states: “The Judicial Branch Retirement and Pension Fund shall have the following income: 1) A worker contribution of 13% of the salaries earned by judicial employees, as well as from the retirements and pensions charged to the fund..."; c) the contribution to the Health Regime administered by the CCSS (5%), which is not applied to IVM pensioners since the IVM regulation in its article 3 establishes that: "The cost of insurance in the Health Insurance for pensioners of the Disability, Old Age, and Death Insurance shall be assumed in its entirety by the Disability, Old Age, and Death Pension Fund; the Board of Directors shall determine the percentage to apply based on actuarial recommendations." They state that, based on the foregoing, it can be deduced that from the 82% assigned to a Judicial Branch worker without the penalty of article 224 bis, it must be reduced by 0.41% (five per thousand of 82%), plus 10.66% (13% contribution), and 4.1% (5% of the contribution to the Sickness and Maternity Insurance), the net amount ending at 66.83% at age 65 with 35 years of service, also having to remember that, for both regimes depending on their pension amount, the income tax would also apply. They indicate that, on the other hand, if an IVM worker retires with 35 years of service, their amount increases for two reasons: the first is the seniority bonus (excess of the 240 contributions) which would reach 14.994% (180 contributions over the 240 multiplied by 0.0833%), and the second reason is the postponement bonus, given that if it is a woman, she would have reached retirement age at 63 years and 2 months, and a man at 63 years and 3 months. In other words, they argue that if the worker is a woman, she postponed 22 months, and if a man, 21 months, which accredits them, according to article 25 of the IVM Regulations, with 0.1333%, and this means that their amount would increase by 2.9326% in the case of a woman and 2.7993% in the case of a man, so depending on their last salaries, their base amount would vary between 43% and 52.5% plus the bonuses for seniority and postponement; that is, the amount under equal retirement conditions for a woman retiring at age 65 with 35 years of service in the IVM would range between 60.9266% and 70.4266%, and in the case of a man, this would vary between 60.7933% and 70.2933%. They state that the differences pointed out can be verified comparatively in the following chart that considers the Judicial Branch Retirement and Pension Regime (Régimen de Pensiones y Jubilaciones del Poder Judicial), prior to the reform alleged here as unconstitutional, as well as with the reform and its comparison with the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), which is a regime of minimum content of social security for workers in the terms indicated by the Constitutional Chamber in its judgment number 846-92 of 1:30 p.m. on March 27, 1992, allowing the existence of other regimes in the country:

They point out that the regulations governing the new Judicial Branch Retirement and Pension Regime and the preceding chart show the following: A) that with the previous system, judicial employees did not receive 100% of their salary as has been falsely disclosed to public opinion. They indicate that, from the calculation of the operation resulting from the average of the base salaries, just as now, significant reductions were made in application of the principle of solidarity: 11% of the contribution to the regime, 5% for health insurance, without counting the corresponding payment of income tax. They argue that this budget was given only if the employee met the age requirement (62 years) and years of service requirement for the institution (30 years), given that, from there, the percentages decreased considerably in the cases of only meeting one of the requirements (age or years of service). B) with the Law 9544 reform, at first glance it would seem that the 82% amount established as the basis for calculating the pension or retirement for judicial employees is higher than the amounts given by the IVM; however, all Judicial Branch pensioners have 3 expenses that IVM pensioners do not have -in addition to the income tax calculation- and it is these that make the applied reform disproportionate in comparison with the IVM. They add that, that being the case, it can be deduced that from the 82% assigned to a worker, without the penalty of article 224 bis, the amount would be reduced by 0.41% (five per thousand of 82% for financing expenses for the Administration Board), 10.66% (13% contribution to the regime), and 4.1% (5% of the contribution to the Sickness and Maternity Insurance), the net amount ending at 66.83% at age 65 with 35 years of service, remembering that for both regimes the income tax would also apply, depending on the pension amount. They argue that, with the execution of the Judicial Branch regime under the parameters of 35 years of service and 65 years of age, the person would receive a net income of 66.83%, for which a contribution of 40% more than in the IVM is imposed, this despite the IVM being a minimum-content guarantee of the right to retirement, in the terms indicated by the High Constitutional Court. They consider it more than evident that this calculation does not pass the filter of reasonableness, nor of equality, if the indicated charges are compared against the minimum regime of the Costa Rican Social Security Fund, to which, despite requiring the employee a contribution of 3%, the latter receives a pension between 43% and 52.5% of the average of the last 240 salaries, with the possibility of receiving bonuses for postponement, for each month the pension and/or retirement is delayed, without having any additional contribution to pay. They estimate that the comparison of both regimes demonstrates, at first glance, the unreasonableness and disproportionateness of the pension and retirement regime imposed on judicial employees, since according to the challenged Law, judicial employees contribute 40% more than workers affiliated to the IVM of the Costa Rican Social Security Fund; however, with all the contributions and reductions imposed on judicial employees, they will end up receiving less than those belonging to the IVM, and this without counting the contribution for the financing of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial).

Comparative Amount Judicial Branch Regime (RJPPJ) vs. CCSS Regime (RIVM) 65 years of age with 35 years of service

They state that, in light of the foregoing, there are cases where the IVM pension would be higher than that of the Judicial Branch Retirement and Pension Regime since the former would grant a higher net amount, and this would occur precisely in the case of those persons with 5 or fewer minimum salaries in the last 5 years of service who, at the time of filing this action and according to information from the CCSS page, is ¢251,801.00; that is, based on article 24 of the IVM Regulations, those would be persons with an average salary in the last 5 years lower than ¢1,259,005.00. They outline that, since 20 years is such a long horizon to reference the pension amount, it truly reflects the salaries of a worker's working life, ensuring the pension is commensurate with what was contributed, but given that this methodology yields a much lower average than the last salaries—since normally throughout a person's working life they receive promotions, category raises, or other labor and salary changes—it would be erroneous to make a reference to the person's last salary without knowing their salary history. They state that, despite this, what can be observed is that, currently and according to official data provided by the Human Management Department of the Judicial Branch, about 62% of workers earn less than said salary—¢1,259,005.00—which suggests that a percentage of workers much higher than that percentage would have retirement amounts lower than those the IVM would grant if one considers that the reference amount would be the average of the last 240 salaries and not the current salary. They point out that in the following comparative charts of the gross and net monthly allowance of both regimes, they clearly visualize the decrease in the net allowances granted to contributors under the Judicial Branch Retirement and Pension Regime, even though they contribute 4 times more than those under the IVM regime.

Chart No. 1 Average Salary of ¢500,000 colones 65 years of age and 35 years of service

The RIVM percentage is obtained as follows: 0. Woman: 52.5% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 52.5% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) Chart No. 2 Average Salary of ¢750,000 colones 65 years of age and 35 years of service

The RIVM percentage is obtained as follows: 0. Woman: 51% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 51% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) Chart No. 3 Average Salary of ¢1,000,000 colones 65 years of age and 35 years of service

The RIVM percentage is obtained as follows:

Woman: 49.4% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 49.4% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) Table No. 4 Average Salary of ¢1,500,000 colones 65 years of age and 35 years of service

The IVM percentage is obtained as follows:

0. Woman: 46.2% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 46.2% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) Table No. 5 Average Salary of ¢2,000,000 colones 65 years of age and 35 years of service

The IVM percentage is obtained as follows:

0. Woman: 43% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 43% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) Table No. 6 Average Salary of ¢3,000,000 colones 65 years of age and 35 years of service

1. The IVM percentage is obtained as follows:

0. Woman: 43% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 43% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) 2. With this average salary, the IVM Regime caps the pension at ¢1,548,189.00, which is adjusted every six months.

Table No. 7 Average Salary of ¢4,000,000 colones 65 years of age and 35 years of service

1. The IVM percentage is obtained as follows:

0. Woman: 43% (basic amount) + 14.99% (seniority bonus) + 2.9326% (postponement bonus) 1. Man: 43% (basic amount) + 14.99% (seniority bonus) + 2.7993% (postponement bonus) 2) With this average salary, the IVM Regime caps the pension at ¢1,548,189.00, which is adjusted every six months.

Based on the above comparison, they conclude the following: a) it is evident that, for those salaries whose monthly average over the last 20 years is less than ¢1.5 million colones, there is substantial economic harm for the employees of the Poder Judicial, since contributors under this regime must, month after month, contribute 4 times more than contributors to the IVM, with the benefits granted under the Poder Judicial Regime being far inferior to those of the IVM; b) that the Poder Judicial Regime is actually more burdensome than the IVM Regime; the former uses as benchmarks individuals who meet the requirements of 65 years of age and 35 years of service, but it cannot be overlooked that in the institution there are many officials who begin working at a very young age, even at 18 years of age, so if this situation is compared with the benefits they would receive under the IVM, the differences would be even greater and, consequently, the harm of belonging to the Poder Judicial Regime would also be greater, without being able to disregard that the latter does not contemplate within its regulations incentives for seniority or postponement, as the IVM does. Thus, by way of example, they indicate that if a person joins the Poder Judicial at age 18 and remains until age 65 (the date on which they can avail themselves of retirement), they will have contributed a total of 47 years to the fund, but they would have the same benefits as an official who begins working at age 30, that is, their contributions would serve to subsidize individuals who work for less time for the institution and, consequently, contribute less to the fund. They consider it clear that the Poder Judicial Retirement and Pension Regime requires adjustments that allow it to guarantee current and future allocations, to the point that it was the judicial collective itself—represented by what was called the "Frente Gremial"—that, several years ago, raised the importance of making such adjustments and, for this reason, a balanced bill was proposed that would meet the requirements of all intervening parties. They argue that, despite the foregoing, the challenged regulation went too far, not only in the application of restrictors to prevent so-called luxury pensions—which were not eliminated—but also in establishing contribution percentages that, compared to the basic IVM regime, are detrimental to the vast majority of the judicial collective, with those who are most harmed, once again, being those who receive the lowest salary income, in contravention of the guiding principles that must underpin pension regimes, namely, equality and solidarity. They argue that, based on the previous tables, not only is the disproportion and lack of reasonableness between both regimes (IVM and PJ) reflected, but also that individuals with the lowest salaries within the Poder Judicial job classification are the most affected by the application of Law 9544, since their contributions are higher than those of the IVM, while obtaining fewer benefits, meaning that their contributions serve to sustain the highest retirement benefits and pensions, as can be seen from Table 5, observing that the allocations given by the Poder Judicial Regime would be higher than those granted by the IVM, within those salary ranges (as an average of the last 240 monthly salaries), which, incidentally, are the fewest, since according to data provided by the Department of Human Management through official communication No. DGH-475-2018 dated June 13, 2018 (this document is being obtained), 71.40% of Poder Judicial employees currently have a salary of less than 2 million colones, while 27.65% have salaries ranging between 2 and 4 million colones, and only 0.84% of employees (Senior Management) exceed 4 million colones. They argue that, in addition, it must be taken into account that, even though 27.65% of Poder Judicial employees (professional positions, among which are Judges, Prosecutors, and Public Defenders) have higher salaries situated between 2 and 4 million colones, when applying the average of the last 240 salaries, said amount would be considerably reduced; a fact that shows that, within the range that exceeds the benefits granted by the IVM, only the so-called "Managerial Positions" of the Poder Judicial are found, which amount to fewer than 50 positions out of the more than 13,000 that make up the Poder Judicial payroll. They point out that, in this way, the imposed reform—which is alleged here to be unconstitutional—was promoted because 35 individuals receive pensions between 4 and 8 million colones, but the situation of the other Poder Judicial officials must be seen:

• a)only 1% are pensions from ¢5 to ¢8 million colones; b) only 3% of Poder Judicial pensions and retirements exceed ¢4 million colones; c) 2% are pensions from ¢4 million to ¢5 million colones; d) 23% receive a pension between ¢2 and ¢3 million colones; e) 21% from ¢1,500,000 to ¢2 million colones; f) 53% between ¢375,000 and ¢1,500,000 colones.

They argue that, even though a cap on the institution's pensions of ¢4 million colones and a solidarity contribution between 35% and 55% were established, these measures apply only to those serving as Magistrates and high Administrative Management positions (such as the Court Clerk, members of the Consejo Superior, Executive Director), who are guaranteed a minimum pension of ¢4 million colones but with a solidarity contribution between 35% and 55% of the excess over that sum. They warn that there are no protective rules regarding the institution's employees with lower salaries, much less for those with the lowest incomes, as the legislator did not understand that the changes approved in the challenged Law do not affect those serving in those high positions—because they are guaranteed a minimum pension of a high amount—but rather, that this law actually harms the generality and majority of judicial employees, who represent 97% of the judicial population, who see their salaries and the amount of their pension and/or retirement substantially and grossly reduced, in comparison with the burdens imposed on them. They indicate that, on the other hand, Article 224 bis of Law 9544 establishes a penalty in case of opting for early retirement in two senses: a) due to time of service and b) due to age: thus, having completed 35 years of service but not 65 years of age, with a minimum age of 60 for women and 62 for men, generates the following effect:

“The calculation shall be made by multiplying the pension obtained in accordance with the provisions of Article 224 for the calculation of the ordinary retirement, by the age of the employee, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement.” They argue that the percentage of 82% established for the pension in Article 224—applicable only to cases where the conditions of the employee’s age (65 years) and the years of service (35 years of service) are met—would be reduced as follows:

Amount for early pension

They argue that these pensions have the same deductions indicated, that is, their amount decreases by 18.5%: due to the contribution to the fund of 13%, the 5 per thousand for the financing of the Administrative Board, and the contribution to health insurance (of 5%), according to which, in these cases, the net amount in the case of early retirement due to age would be as follows:

Net amount for early pension (with deductions and contributions established in the Law)

They indicate that it is important to note that these differences between both regimes increase when the worker decides to postpone their retirement: for example, if a person starts working at age 18 and reaches 35 years of service at age 53, they could not retire under either regime, that is, neither under the Poder Judicial Regime nor under the CCSS Disability, Old Age, and Death Regime, whereas if they are a Poder Judicial official, they could retire at age 60 if a woman with 42 years of service or at 62 if a man with 44 years of work. They argue that, due to the years of service for the Poder Judicial—which far exceed those established as the basic condition for the ordinary pension—there would always be a penalty in the case of early retirement, such that they would receive a pension at 61.68% net of the reference salary (75.69% gross) if a woman, or at 63.74% net (78.21%) if a man. They add that, in the face of the above situation, under the IVM, a woman would receive a pension with a bonus of 22% plus the base amount that would range between 43% and 52.5%, that is, depending on their salaries, the pension would range from 65% to 74.5% of the reference salary—also at 60 years of age—and in the case of a man at 62 years of age, they would have a pension that would range between 67% and 76.5%. They state that the difference between the Poder Judicial and IVM regimes increases even more if the worker decides to retire at 65 years of age, since under the Poder Judicial Regime they would reach the full pension, that is, 66.83% net (82% gross), and under the IVM, due to postponement, it would be 71.79% for the lowest of the ranges in the case of men, and for a woman it would be 73%. They indicate that the above comparison demonstrates the inequality of treatment, in general, with the labor sector of the Poder Judicial, given the evident overload imposed on judicial employees in relation to the rest of the officials who contribute to the IVM of the Social Security, in flagrant violation of the principle of equality, considering that Article 33 of the Constitution is flagrantly violated because Poder Judicial officials will receive a lower pension than the beneficiaries of the CCSS IVM regime, but they contribute 4 times more than the latter. They consider that this inequality has no justification on public order grounds. They insist that the way the legislator designed and modified the Poder Judicial Pension and Retirement Regime affects not only the salary of judicial employees but also the amount of the pension and/or retirement, considering that there is a serious impairment of the aforementioned constitutional principles of reasonableness and progressiveness in the recognition of fundamental rights. They denote that, in addition to the foregoing, the income tax calculation on the pension and/or retirement was imposed on the gross amount, that is, without having made the corresponding deductions for the multiple charges imposed on this amount—contribution to the pension and/or retirement regime and to social security, as well as to the financing of the Administrative Board—and they repeat that pensioners of other regimes do not have these charges. They argue that this further aggravates the situation, not only for active employees but also for Poder Judicial pensioners and/or retirees, given that the latter find themselves in a vulnerable situation due to their age and for being at a stage in which it is difficult to find another source of financing for their personal and family support. They warn that it cannot be forgotten that, for the calculation of income tax, the general rule is that it is done after making the legal deductions, that is, on the net income, not the gross. They consider that the deputies approved a system that affected the entire collective of the institution (Poder Judicial), and it is in the classes and positions with the lowest salary compensation that the disproportion of the formula for calculating the pension and/or retirement in the Poder Judicial Retirement and Pension Regime is most evident. They state that, consequently, the approved regime, as has been explained, does not address the variables and principles governing the matter of social security, as evidenced in the conclusions of the study conducted by mathematical actuary Esteban Bermúdez, this in comparison with the obligations and benefits of the Poder Judicial Retirement and Pension Regime in relation to the Disability, Old Age, and Death Regime administered by the Costa Rican Social Security Fund (IVM). They report that the conclusions reached in the study conducted by mathematical actuary Esteban Bermúdez are the following:

Conclusion 1. The Poder Judicial pension calculation formula does not include recognitions for seniority such as the bonus and the postponement, which does not encourage the worker to work longer and this generates an increase in the fund's liabilities and lower pension amounts; moreover, to achieve an ordinary pension right in the Poder Judicial Regime, 40% in contributions is required, which is much higher than in the IVM Regime, and translates to 10 more years of service.

Conclusion 2. Approximately 62% of Poder Judicial workers have salaries lower than ¢1,259,005.00 colones, which would generate lower retirement rights for this population than those granted by the IVM Regime, if one takes into account that this is the average salary of the last 240 months.

Conclusion 3. The Reform of the Poder Judicial Regime generates pensions similar to those of the IVM Regime; however, for the lowest Poder Judicial salaries, these pensions could end up being lower than those obtained by workers of the IVM Regime, meaning the reform is neither attractive, nor competitive, nor profitable for these workers.

Conclusion 4. With the current pension granting structure, early retirement—before 62 years—is encouraged, which generates an increase in the actuarial liabilities of the Poder Judicial Pension and Retirement Fund.

Conclusion 5. A tripartite contribution of 28.6% for the Poder Judicial Regime and 13% for the worker are 281.5% and 338.5% higher respectively than their counterparts in the IVM Regime, although for the majority of judicial workers, their pension will be lower than that granted by the CCSS; that is, there is no relationship, or it is disproportionate, between the amount contributed and the amount of the pension to be granted.

They state that the principles of solidarity—both intergenerational and intragenerational—are broken the moment the worker can withdraw the funds, as if there were no support for the pensioned populations. They add that, moreover, due to the parafiscal nature of the contributions, these cannot be considered part of the worker's assets but rather of the collective, with a defined purpose; therefore, the transfer of contributions to a private and individual fund is contrary to the purpose for which the contributions were created. They point out that the expert Esteban Bermúdez Aguilar, the mathematical actuary who conducted the study to which they are referring, said:

"To conclude this analysis, the combination of the low or similar benefits granted by the current reform together with the possibility of transferring IVM contributions with the respective privatization of the contribution difference upon being transferred to the ROP, opens up a sinister possibility where workers, upon reaching the necessary contributions in the IVM, decide to resign from the Poder Judicial, work independently, and contribute to the IVM for a determined period of time, request a transfer, and thus access an IVM pension, but with a higher ROP, generating a higher supplementary pension at the expense of the weakening of the RJPPJ fund." In addition, they point out that the indicated professional warned that "(A)ctualmente el IVM, no exige mínimos de pertenencia en ese régimen para trasladar cotizaciones." They state that it is evident that the Poder Judicial Retirement and Pension Regime defined in Law Number 9544 rewards those with the highest salaries with a better relative pension, while it grants lower-amount pensions to the lowest salaries of the majority of Poder Judicial workers, thus establishing a much lesser benefit than if they had contributed to the Costa Rican Social Security Fund's Disability, Old Age, and Death Regime—according to the inserted tables—for the lowest Poder Judicial positions; and a privileged condition is maintained for the institution's senior management positions. They consider that the foregoing breaks the social security principles of redistribution and solidarity of pensions, understood as the way in which a pension regime distributes the saved amounts among its members, in such a way that it is considered fair or convenient; in this specific case, they consider that an unequal and discriminatory regime has been created. They argue that, as this system was designed by the legislators in Law Number 9544, the redistribution of the saved amounts favors the sector with the highest incomes of the members of the Poder Judicial Retirement and Pension Regime, who are the minority of workers and who amount to barely 1% of the institution's collective. They indicate that by resolution number 2017-015272 of the Constitutional Chamber at 9:30 a.m. on September 25, 2017, an unconstitutionality action (number 17-006076-0007-CO) was admitted against Article 1 of session No. 26 of August 11, 2008, and Article XIV of extraordinary session No. 32 of November 8, 2010, by which the salaries of the high hierarchy of the Poder Judicial were increased, which is one of the main causes of the outflow of funds from the Poder Judicial Regime, causing a crisis and destabilization in the Retirement and Pension Regime of this Branch of the Republic. They argue that, in their view, the proposal approved in Law Number 9544 is a violation of all the principles of Constitutional Law that govern the right to a pension and that should support the reform, namely, the principles of equality, redistributive justice, solidarity, and efficiency, which, in turn, are an expression of the conception and model of the Social and Democratic State of Law that defines the Costa Rican constitutional order. They add that the foregoing considerations are referenced in the technical report prepared by Mr. Esteban Bermúdez, who serves as actuary of the National Teachers' Retirement and Pension Fund; a study that was carried out at the request of the Costa Rican Association of the Judicature (ACOJUD) and that is provided to the Chamber. B) On the lack of proportionality in the strict sense of the regulation approved in Law 9544. Technical criteria were not heeded. They warn that, at the time the process and discussion of the reforms to the Poder Judicial Retirement and Pension Regime began, none of the existing proposals within the legislative body had a technical study, but rather the procedure for contracting actuarial studies from the Institute for Economic Sciences Research of the University of Costa Rica was in process; however, they clarify that the actuarial study carried out by this Institute of the University of Costa Rica did not analyze any of the substitute texts adopted—in the first instance—by the Special Commission for discussion, nor the one finally voted on by the Legislative Plenary, which today is Law Number 9544. They clarify that the actuarial study only addressed the previous factors of economic, financial, and accounting sustainability of the fund, not the consequences that its approval would cause for the employees and contributors of the regime, in total disregard of the constitutional principles and the principles of Constitutional Law that govern this matter, namely, solidarity, fair redistribution, equality (including affirmative actions to address gender inequality), and non-discrimination, and that, under this premise, it made its own reform proposal. They note that, in ordinary session number 23 held on July 27, 2017, the Special Legislative Commission granted a hearing to the Institute for Economic Sciences Research in order to try to justify the latest proposal (third substitute text) finally approved and recommended by that Commission in the same session, and in its response, the Institute for Economic Sciences Research of the University of Costa Rica (IICE) warned of certain changes in the essential elements, once again, to address only the sustainability of the regime. They argue that only the supposed economic soundness of the fund prevailed, which is not such, at the cost of the burdensome contributions of those who are affiliated with this regime, but the complaints about the harmful effect that the reform would have on 62% of Poder Judicial officials were not addressed; a percentage they consider conservative due to the pension calculation basis in the challenged Law, meaning it could be higher. They add that these restrictions and limitations do not meet the criteria of utility, minimal impairment, and proportionality in the strict sense, which are the evaluation and weighting criteria for the regime of limitation of fundamental rights according to the development made by the Constitutional Chamber, especially based on its judgments 3550-92 of November 24, 1992, and 4205-96 of August 20, 1996; consequently, they consider that this is one more reason why this reform is excessive and arbitrary. They highlight that the most serious aspect of all is that this reform does not fulfill the purpose that—supposedly—motivated its creation, which was the modification of the regime to make it sustainable, strong, and to eliminate luxury pensions; on the contrary, they affirm that the generality of the collective of Poder Judicial workers was affected, who now see their salaries, pensions, and retirements substantially reduced, while luxury pensions remain the same. They recall that both the Constitutional Chamber and the International Labor Organization hold the view that, to modify the pension system, technical criteria must be available; however, despite this, Articles 224 and 224 bis of the challenged reform do not have them for increasing the pension calculation limit from 10 to 20 years. They argue that, on this matter, the Constitutional Chamber has annulled laws for lacking technical criteria: in judgments number 2011-6805 of May 27, 2011, in which subsection k) of Article 131 of the Ley de Tránsito por Vías Públicas Terrestres was annulled; number 2011-13393 of October 5, 2011, which annulled subsection ñ) of Article 132 of the Ley de Tránsito por Vías Públicas Terrestres; and number 2011-13436 of October 5, 2011, which annulled Article 3.7 of Decreto Ejecutivo 35748-MP-MINAET-MIVAH.

They add that this reasoning allowed the Constitutional Chamber to declare that laws can be annulled if they suffer from that defect of irrationality and disproportion between means and ends, given that the criteria deduced from judicial cases for declaring a law unconstitutional are the following:

• a)the regulation does not satisfy an imperative public interest; b) from several valid options, the one that least restricts the regulated right must be selected; c) the restriction must be proportionate to the end that motivates it and must be limited to fulfilling that end (proportionality of the regulation); d) the restriction must be exceptional for being motivated by a social imperative.

They argue that respect for these criteria allows for a subsequent assessment of the constitutionality of regulatory norms, since the limitation imposed by law will be the best alternative compared to others more burdensome for citizens' rights. They recall that in judgment number 08858-98 of 16 hours and 33 minutes of December 15, 1998, the Constitutional Chamber developed those concepts regarding norms of a general nature, in the following terms:

"Thus, a rights-restrictive act is reasonable when it satisfies a triple condition: [when] it is necessary, suitable, and proportionate. The necessity of a measure makes direct reference to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a determined group—through the adoption of a differentiating measure. That is to say that, if such action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, for its part, involves a judgment regarding whether or not the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The suitability of the measure indicates that other mechanisms may exist that better solve the existing need, some of which may fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction that is imposed or intended to be imposed, so that the limitation is not of a markedly greater magnitude than the benefit that it is intended to obtain for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second proceeds from a quantitative comparison of the two objects analyzed" (the highlights are from the brief).

They emphasize that it was the Constitutional Chamber itself that developed the principle of reasonableness, recognizing its constitutional rank in the terms of judgment number 3057-2014 of 14 hours and 30 minutes of March 5, 2014, in which it reasoned:

"The principle of proportionality derives from the Rule of Law and constitutes a limit to its action. All organs and entities of the State are subject to it (...) For this reason, the principle of proportionality, although not expressly established in the Political Constitution, has been recognized by the jurisprudence of this Chamber as a principle of constitutional rank, integrated into the Law of the Constitution, binding on all participants, both in the phase of creation of the norm and in the stages of interpretation and application to specific cases. The proportionality judgment implies, in the first place, an analysis or assessment of adequacy or suitability; thus, a law is adequate when by means of it one can contribute to achieving the desired end; secondly, an analysis of necessity; that is, a law is necessary when the legislator could not have chosen another, equally effective means that would entail a lesser restriction or limitation of the fundamental right; and lastly, an examination of proportionality in the strict sense or prohibition of excess of the restriction. (...) In that sense, proportionality is intimately linked to the reasonableness of norms, being one of its components. The constitutional jurisprudence itself has indicated its components as legitimacy, suitability, necessity, and proportionality in the strict sense, considering that: '... Legitimacy refers to the fact that the objective intended by the challenged act or provision must not, at least, be legally prohibited; suitability indicates that the questioned state measure must be apt to effectively achieve the intended objective; necessity means that among several measures equally apt to achieve such an objective, the competent authority must choose the one that least affects the legal sphere of the person; and proportionality in the strict sense provides that apart from the requirement that the norm be apt and necessary, what is ordered by it must not be out of proportion with respect to the intended objective, that is, it must not be "demandable" of the individual. (...) (Judgment of this Chamber number 03933-98, of nine hours fifty-nine minutes on June twelfth, nineteen ninety-eight). Thus, a rights-restrictive act is reasonable when it satisfies a triple condition: it is necessary, suitable, and proportionate. The necessity of a measure makes direct reference to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a determined group—through the adoption of a differentiating measure. That is to say that, if such action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, for its part, involves a judgment regarding whether or not the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The suitability of the measure indicates that other mechanisms may exist that better solve the existing need, some of which may fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction that is imposed or intended to be imposed, so that the limitation is not of a markedly greater magnitude than the benefit that it is intended to obtain for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second proceeds from a quantitative comparison of the two objects analyzed (see judgment number 8858-98 of 16 hours and 33 minutes of December 15, 1998)." They indicate that these rules are similar to those developed by the German Constitutional Court, which has defined 3 basic concepts for analyzing the constitutionality of laws not based on a direct conflict with any norm of the constitutional text, and which has established that it is not possible to enact laws that restrict human rights if appropriate means to achieve a legitimate end do not exist; the least restrictive effects must be provided for; the means must be proportionate to the end:

“PROPORTIONALITY. The principle of proportionality as the concept of the objective order of values ... is crucial for understanding German Constitutional Law. Proportionality plays a role similar to that of the American Due Process of Law Doctrine. The Basic Law contains no explicit reference to proportionality, but the Constitution considers it an indispensable element of a state based on the Rule of Law. The Court consistently invokes the principle of proportionality when determining whether legislation and other governmental acts conform to the values and principles of the Basic Law. In much of its work, the Court is less concerned with interpreting the Constitution—that is, defining the meaning of the documented text—than with applying a means-ends test to determine whether a particular right has been overburdened in light of certain given facts. Indeed, the German approach is not so different from the methodology frequently employed by the United States Supreme Court in fundamental rights cases.

In its German version, proportionality reasoning is a three-step process. First, whenever Parliament enacts a law restricting a basic right, the means employed must be appropriate (eignung) to the fulfillment of a legitimate end. Because, as in the Basic Law, rights are limited by duties and are frequently limited by ends and values specified in the text, the Constitutional Court receives considerable guidance in determining the legitimacy of a state purpose. The sparse language of the United States Constitution, by contrast, frequently encourages the Supreme Court to rely on non-textual philosophical arguments—to determine the validity of a state purpose that impinges on a constitutional right. Second. The means employed to obtain the valid end must have the least restrictive effects (Erforderiichkit) on a constitutional value. This criterion is applied flexibly and must meet the standard of rationality. As applied by the Constitutional Court, it is less than “strict scrutiny” and more than the “minimal rationality” standard of American Constitutional law. Finally, the means must be proportionate to the end. The burden on the right must not be excessive in relation to the benefits secured by the state objectives (Zumutbarkeit). This trifurcated criterion of proportionality seems completely compatible with, if not demanded by, the principle of practical concordance” (Donald P. Komers. The Constitutional Jurisprudence of the Federal Republic of Germany. Duke University Press. Durham and London. 1997. Page 46) (the highlights are from the brief).

They indicate that the Constitutional Chamber has adopted these criteria of the German Constitutional Court in a judgment regarding non-compliance with speed limits, in which it stated:

“… The German doctrine made an important contribution to the topic of 'reasonableness' by successfully identifying, in a very clear manner, its components: legitimacy, suitability, necessity, and proportionality in the strict sense, ideas it develops by affirming that '... Legitimacy refers to the fact that the objective intended by the challenged act or provision must not, at least, be legally prohibited; suitability indicates that the questioned state measure must be apt to effectively achieve the intended objective; necessity means that among several measures equally apt to achieve such an objective, the competent authority must choose the one that least affects the legal sphere of the person; and proportionality in the strict sense provides that apart from the requirement that the norm be apt and necessary, what is ordered by it must not be out of proportion with respect to the intended objective, that is, it must not be "demandable" of the individual...' (judgment of this Chamber number 3933-98 of 9 hours 59 minutes of June 12, 1998)” (see judgment number 2000-08744 of 14 hours and 47 minutes of October 4, 2000) (the highlights are from the brief).

They conclude that the Constitutional Chamber has defined these concepts of rationality and proportionality in a broad manner, referring to possible legislative excesses in the regulation of freedoms, and, for that reason, they consider that the reform does not meet these criteria of reasonableness and proportionality because it created a lower pension for 62% of the Judicial Branch officials, without a technical criterion to justify it and in total contravention of the constitutional principles governing the right to a pension. They also consider that Ley 9544 is unconstitutional on the merits because it violates the principle of equality and non-discrimination: a) In relation to this point, they argue that this regulation does not address gender differentiation in the design of the pension and retirement regime, in grave and direct violation of the principle of positive discrimination. They indicate that Article 224 of the Ley Orgánica del Poder Judicial, amended through Ley number 9544, requires the same age of male and female judicial employees to access the ordinary pension, establishing for both the attained age of 65 years. They consider that, with this measure, the legislators equated 2 groups that are in a frankly unequal situation based on gender, and this breaches the principle of equality, which not only obliges one to treat equal situations equally as well as to differentiate what is different, but also to establish positive actions in the face of disadvantageous situations. They consider that failing to address the special socio-economic and labor situations of women working in the Judicial Branch contravenes the fundamental right to real equality, the right to health, and human dignity, enshrined in Articles 33 and 21 of the Political Constitution, by the legislator not approving measures of positive action (positive discrimination) to alleviate the unequal situation of women compared to men. They indicate that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by the Government of Costa Rica through Ley number 6968 of October 2, 1984, and in force from its publication, defined the concept of discrimination against women in the following terms:

"Article 1:

For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field" (the highlights are from the brief).

For their part, they recall that Article 2 of that Convention prescribes:

"States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake to:

a...

• b)Adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.
• c)...
• d)Refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.

e)…

• f)Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

f)..." (the highlights are from the brief).

And in the same vein, they mention Article 11 of that Convention:

"1- States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(...)

• e)The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

(...)" (the highlights are from the brief).

In the same sense, they argue that the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women "Convención de Belém Do Pará", in Article 6, recognized that the right of every woman to a life free from violence includes, translates among others, to "...be free from all forms of discrimination"; in other words, all forms of discrimination—such as the non-recognition of her disadvantageous condition that affects the right to equality—is a sanctioned form of violence (the highlights are from the brief). They indicate that, in the case of the retirement right, the establishment of a different age for the recognition of the ordinary pension for women in relation to men is required, which is based on respect for the equality of rights between them, since when speaking of women's rights and their defense and development, it is necessary to recognize that the different tasks assigned to women place them in a position of greater vulnerability and, therefore, to face that reality, recourse has been made to what American doctrine has called positive action or affirmative action, which is nothing other than the application of policies or actions to favor certain minority groups or those that, historically, have suffered discrimination, with the main objective of seeking balance. They state that, in this sense, the Solvency study of the Judicial Branch Retirement and Pension Fund never contemplated as probable the clearest distinction in favor of women, and this was officially answered by the Director of the Institute for Research in Economic Sciences of the UCR (IICE), José Antonio Cordero Peña, through official letter IICE-176-2017, to Msc. Jeannette Arias Meza, Head of the Technical Secretariat for Gender and Access to Justice of the Judicial Branch. They indicate that in the Final Report: “Recopilación e informe Final: Conclusiones Recomendaciones, Producto 6”, of the IICE of May 23, 2017, it is recognized that according to the Judicial Branch databases 2010-2015, women have a lower participation in the total number of retirees, since in 2014—used as a reference—women represented 32% of retirees, which reflects the barriers to access to paid work in general, so that those who manage to access a formal pension regime must endure it under conditions of inequality. They argue that, in conclusion, it is clear that the equalization of retirement conditions for men and women in Article 224 of the Ley Orgánica del Poder Judicial, amended through Ley 9544, clearly violates Articles 21 and 33 of the Political Constitution, as well as the cited international agreements because it ignores the existing differences in women's working conditions and, by assimilating the retirement requirements between men and women, causes a real impact on them, since it is they who perform an additional workday of unpaid work, having been socially assigned the role of caregivers and those in charge of child-rearing, with the consequences that this has on their integral development and health. In this regard, they refer to the following studies on the situation of women in Costa Rica, which they consider to be objective documents that justify and support the real, differentiated labor situation in relation to that of men:

• a)Encuesta Nacional de Uso del Tiempo. Estudios generales. Año 2017. INEC.
• b)Estudio sobre Incapacidades en el Poder Judicial. Período 2013-2014, official letter number UICC-128-14 of June 12, 2014, Human Management Department of the Judicial Branch.
• c)Estudio: "Las mujeres en el trabajo. Tendencias 2016". OIT.
• d)Análisis de Situación de Salud en Costa Rica. Ministerio de Salud. Dirección de Vigilancia, March 2014.

Furthermore, b) they argue that the transitional norms contained in Ley 9544 are discriminatory by not providing for progressivity in its application. They indicate that the modification to the regime adopted in Ley 9544 is drastic and burdensome for Judicial Branch employees since, in a categorical manner, all its elements were substantially modified, and, additionally, it did not provide for a graduation or gradualness in its implementation, as they consider should have been done, in order to avoid extremely serious impacts, which they believe is already being seen in practice with the consequences for the generality of employees and, to a lesser extent, in relation to the 3% who are in the range of pensions greater than ¢4 million colones. Thus, they consider that the legislator should have provided for gradualness measures, as the Judicial Branch unions proposed to the Legislative Assembly, in order to compensate for the additional sacrifice that the working class has to make under this new regime. They indicate that the Comptroller General of the Republic pronounced in that sense when she indicated to the deputies making up the Special Commission, and insisted, on the need to adopt healing and prevention measures to guarantee the sustainability of the regime, in accordance with the socio-economic reality of the country and the finances of the State, without this translating into a weakening of the Judicial Branch—in what refers to the remuneration system of judicial employees and, of course, the institution's pension system—clarifying that such changes “... will be gradual because these topics are complex. As I was telling don Johnny, one cannot pretend to ideally have everyone in the same regime from one year to the next, it is very complex and requires gradualness and proportionality” (see Acta de Sesión Ordinaria number 8 of the Special Commission, held on November 16, 2016) (the highlights are from the brief). They consider that the failure to provide for progressivity in the implementation of these changes to the Judicial Branch pension and retirement system causes special harm to a community of 62%; grave and special harm that the unrestricted compliance with this law is already generating for Judicial Branch employees, given that, from one day to the next, they saw their salaries significantly reduced, not only because of the increase in the contribution to the regime but also because of the financing of the Administrative Board. They add that, in this sense, based on the actuarial study prepared by the University of Costa Rica—which in its product 5 gave several criteria of which IICE_3 and IICE_4 were not only sustainable but also showed a surplus—through official letter 222-P-2017 of July 27, 2017, Msc. Carlos A. Montero Zúñiga, member of the Superior Council and Coordinator of the Technical Team of the Judicial Branch, requested the Special Commission to contemplate progressivity in the application of the new regulations to be determined and approved, in the following terms:

"1. The Judicial Branch received, to its satisfaction, formally, the Actuarial Study of the Retirement and Pension Fund prepared by the Institute for Research in Economic Sciences of the University of Costa Rica, which was developed with the participation of the union conglomerate of the Judicial Branch as part of the Executive Committee that approved the products prepared by the University of Costa Rica.

2. The study proposes two frameworks of actuarial solvency IICE_3 and IICE_4, which, in turn, were developed under three scenarios, namely the pessimistic with a rate of return of 2%, normal of 3%, and the optimistic of 4%.

In the optimistic scenarios, the deficit is not only overcome, but an actuarial surplus is reached.

3. According to official letter No. 0406-FC-2017 signed by Máster Floribel Campos Solano, Head of the Financial Accounting Department which I attach, from the year 2000 to date, the Retirement and Pension Fund has obtained real returns of 4.64%.

All the foregoing demonstrates that it is possible to work with the 4% scenarios and that the resulting surplus compensates for the introduction of graduations that mitigate the negative impact of the eventual reforms on judicial employees." They indicate that this request was reiterated by Mr. Carlos A. Montero Zúñiga in official letter 223-P-2017 of July 27, 2017; official letters provided to the Chamber as evidence. They accuse that, nevertheless, the content of those official letters was not heeded in observance of superior—constitutional—principles of least impact on rights, equality, and solidarity. Furthermore, c) they consider that there is discriminatory treatment to the detriment of judicial employees with respect to the treatment of acquired rights, compared to the officials of the Tribunal Supremo de Elecciones who contribute to the Judicial Branch Pension and Retirement Regime. On this matter, they point out the contrasting different treatment given by the legislator regarding the issue of acquired rights, to determine the approval of the Law being challenged. They argue that, according to the mandate of Article 129 of the Political Constitution, the laws approved by the Legislative Assembly "... are mandatory and take effect from the day they designate; lacking this requirement, ten days after their publication in the Diario Oficial." They argue that, in this case, as expressly provided by Ley 9544 at the end—without any article—the legislators provided for its immediate effectiveness from its publication, which was done in La Gaceta number 89 of May 22, 2018. They indicate that in Transitorio VI, the following provision was made:

“TRANSITORIO VI- Judicial employees who meet the requirements to acquire the right to a pension as established in the text of title IX of Ley N° 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the provisions established in the aforementioned text.” They state that, without any objective reason to justify it, a differentiated treatment was provided for those employees who, belonging to the Judicial Branch Pension and Retirement Regime, work in the Tribunal Supremo de Elecciones, in that an unrestricted right to belong to that regime was declared for those officials, but on the basis of the repealed regulations, regardless of how long it took them to meet those requirements.

“TRANSITORIO II- The officials of the Tribunal Supremo de Elecciones to whom Article 242 of Ley N.° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, referred, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, the present reform shall not be applied to their detriment and at all times their acquired rights in good faith must be respected. However, they are empowered to request, in the terms provided in Articles 226 and 234 of this law, the refund of the employee, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, so that they may transfer to the Régimen de Pensiones, Invalidez, Vejez y Muerte, administered by the Caja Costarricense de Seguro Social (CCSS), if they so desire.” They argue that the Association they represent and those filing suit jointly consider that this transitional rule is totally discriminatory, by distinguishing between members of the Judicial Branch Retirement and Pension Regime, if they work for this Branch (the Judicial) or, alternatively, if they work for the Tribunal Supremo de Elecciones; in that sense, they ask: if the previous regulation is the same, why create this odious difference? Based on these arguments, they request declaring the unconstitutionality of Transitorio II of Ley number 9544 for gross violation of the principle of equality contained in Article 33 of the Political Constitution.

Based on the arguments raised in this action of unconstitutionality, they conclude the following:

• 1)the reform approved by Ley 9544 is unconstitutional for having directly violated the Political Constitution by having been approved without consulting the CCSS, the Judicial Branch, or the state banks.
• 2)the reform approved by Ley 9544 is unconstitutional for having directly violated the Political Constitution by having been approved without a qualified majority of 38 votes, as it involves a reform to the Judicial Branch, according to the provisions of Article 167 of the Political Constitution.
• 3)the reform approved by Ley 9544 is unconstitutional for not having published in the Diario Oficial La Gaceta the finally approved text, nor any of the previous substitute texts, in application of the procedure approved according to the provisions of Article 208 bis of the Reglamento de la Asamblea Legislativa.
• 4)the reform approved by Ley 9544 is unconstitutional due to its effects (Art.

3 of the LJC) since the pensions of judicial servants will be lower than those of the IVM Regime of the CCSS, due to excessive, arbitrary, and abusive burdens.

• 5)the reform approved by Law 9544 is unconstitutional due to a lack of proportionality in the strict sense, because it is openly disproportionate, confiscatory, and unequal by establishing a regime that, for the majority of the Judicial Branch collective (62%), is inferior to the minimum of the IVM Regime of the Costa Rican Social Security Fund and, nevertheless, the burdens imposed are excessive, both on active servants and pensioners and/or retirees, up to 4 times more in relation to IVM contributors.
• 6)the reform approved by Law 9544 is unconstitutional regarding the treatment of acquired rights in relation to officials of the Supreme Electoral Tribunal who contribute to the Judicial Branch Retirement and Pension Regime.
• 7)the reform approved by Law 9544 is unconstitutional because it does not address gender differentiation, in serious and direct violation of the principle of positive discrimination.
• 8)the reform approved by Law 9544 is unconstitutional because it is discriminatory, by not providing for progressivity in its application.

They conclude by requesting that the unconstitutionality of Law 9544 be declared in the terms in which they have raised it and that the Chamber so declare it.

116.- The Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the Substitute Magistrate José Paulino Hernández and the Substitute Magistrate Marta Esquivel Rodríguez, filed a recusal (inhibitoria), considering that they have a direct interest in the outcome of this unconstitutionality action (in terms equal to how they did in the principal case file 18-007819-0007-CO).

117.- In a resolution of the Presidency of the Constitutional Chamber -Magistrate Araya García- at 9:35 a.m. on September 13, 2018, the Proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and the Substitute Magistrates Hernández Gutiérrez and Esquivel Rodríguez were ordered separated from hearing this matter, ordering that the pertinent information be communicated to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Ley de la Jurisdicción Constitucional.

118.- By official letter added to the electronic case file on September 20, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6446 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez for having recused themselves from hearing this unconstitutionality action. It is reported that the Substitute Magistrates selected are: Anamari Garro Vargas, Hubert Fernández Argüello, Mauricio Chacón Jiménez, Jorge Araya García, Lucila Monge Pizarro, Ileana Sánchez Navarro, and Ana María Picado Brenes.

119.- On September 24, 2018, Substitute Magistrate Anamari Garro Vargas; on the following October 2, Substitute Magistrates Ileana Sánchez Navarro, Hubert Fernández Argüello, Mauricio Chacón Jiménez, and Lucila Monge Pizarro; on the subsequent October 3, Substitute Magistrate Ana María Picado; and on the following October 4, Substitute Magistrate Jorge Araya García, filed a recusal (inhibitoria) in this case file in the same terms in which they did in the principal case file 18-007819-0007-CO.

120.- In a resolution at 1:55 p.m. on October 5, 2018, the Presidency of the Constitutional Chamber -Magistrate Delgado Faith- ordered the Substitute Magistrates Chacón Jiménez, Sánchez Navarro, Fernández Argüello, Monge Pizarro, Picado Brenes, Araya García, and Garro Vargas separated from hearing this process, as well as to communicate the pertinent information to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to the provisions of Article 6 of the Ley de la Jurisdicción Constitucional.

121.- By official letter added to the electronic case file on October 12, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6514 carried out for the substitution of Substitute Magistrates Anamari Garro Vargas, Ileana Sánchez Navarro, Hubert Fernández Argüello, Mauricio Chacón Jiménez, Lucila Monge Pizarro, Ana María Picado Brenes, and Jorge Araya García, stating that because the Chamber had originally requested 7 substitutes and only 3 are available, the draw was conducted with the substitute magistrates that were available, with Alejandro Delgado Faith, Alicia Salas Torres, and Rónald Salazar Murillo being selected.

122.- Substitute Magistrate Rónald Salazar Murillo -on October 16, 2018- and Substitute Magistrate Alicia Salas Torres -on the following October 23-, filed a recusal (inhibitoria) to hear this unconstitutionality action in the same terms in which they did in the principal case file 18-007819-0007-CO.

123.- The Presidency of the Constitutional Chamber, exercised by Magistrate Delgado Faith, in a resolution at 2:10 p.m. on October 23, 2018, ordered Substitute Magistrates Salazar Murillo and Salas Torres separated from hearing this process, and ordered the case file to be sent to the Presidency of the Supreme Court of Justice for the corresponding action.

124.- By resolution of the Presidency of the Constitutional Chamber -Magistrate Delgado Faith- at 2:42 p.m. on October 23, 2018, and based on what was resolved by the President of the Constitutional Chamber -Magistrate Castillo Víquez- at 2:40 p.m. on August 3, 2018, issued in principal case file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, and substitute José Paulino Hernández Gutiérrez were declared enabled to hear this unconstitutionality action, ordering the proceedings of the case file to continue.

125.- On February 12, 2019, Magistrate Fernando Cruz Castro appeared to state that, in this case file and in all others that have been accumulated to principal case file number 18-007819-0007-CO, he, together with other Magistrates, filed a request for recusal (inhibitoria) because the reform to the Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial is being challenged. He argues that, although said recusal (inhibitoria) was initially accepted, subsequently, all the Magistrates were enabled based on the principle of the non-waivability of competencies. He argues that since August 2018 he has held the position of President of the Supreme Court of Justice and therefore considers that he has a new reason to request the recusal (inhibitoria). He adds that, in other proceedings before this Chamber where he has been the respondent or intervening party in his capacity as President of the Supreme Court of Justice, he has requested the recusal (inhibitoria) because he has considered it improper to act as a judge in a matter where he has been called as a party in that capacity, considering that, in the case files indicated supra, the same situation exists because he cannot participate in the voting on those actions since, as President of the Court, he will be called to report on the merits since the regulations are related to the Judicial Branch. He argues that, for this reason, he files this recusal (inhibitoria) and requests that the file record be sent to the Presidency of the Constitutional Chamber to resolve what is appropriate in accordance with the provisions of Article 6 of the Ley de la Jurisdicción Constitucional.

126.- By resolution at 1:29 p.m. on February 12, 2019, the President of the Constitutional Chamber -Magistrate Fernando Castillo- and based on what was resolved at 2:40 p.m. on August 3, 2018, issued in principal case file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was ordered separated from hearing this matter, and Magistrate Jorge Araya García was declared enabled to hear this matter, ordering the proceedings of the case file to continue.

127.- On February 13, 2019, the Substitute Magistrate José Paulino Hernández filed a document stating that he is separating himself from hearing this case file because the Legislative Assembly appointed a titular Magistrate to the post in which he was working, and, therefore, he argues that upon the cessation of his appointment, the reason for his enabling due to supervening cause has disappeared, requesting that the file record be passed to the Presidency of the Chamber for the corresponding action.

128.- In a resolution of the Presidency of the Constitutional Chamber -Magistrate Castillo Víquez- at 8:25 a.m. on February 13, 2019, Substitute Magistrate José Paulino Hernández was ordered separated from hearing this case, and Substitute Magistrate Marta Esquivel was enabled to hear it, ordering the proceedings of the case file to continue.

129.- Regarding Unconstitutionality Action No. 18-014168-0007-CO. In an interlocutory resolution of the Full Chamber number 2019-002488 at 10:05 a.m. on February 13, 2019, it was ordered to accumulate unconstitutionality action number 18-014168-0007-CO to the one that remained as principal case file number 18-007819-0007-CO, and that it be considered an amplification thereof, due to the evident connection that exists between the claims raised in both processes and in order to avoid contradictory resolutions that could affect the rights and interests of the parties involved.

130.- By a written submission received in the Secretariat of the Chamber at 10:37 a.m. on September 7, 2018, unconstitutionality action number 18-014168-0007-CO was filed, brought by Danilo Eduardo Ugalde Vargas, of legal age, resident of San José, attorney, with identity card N° 4-0143-0612, in his capacity as Special Judicial Representative of the following retirees and pensioners: 1) Eduardo Sancho González, identity card N° 1-0380-0073; 2) Rosa Iris Gamboa Monge, identity card N° 3-0120-0928; 3) Magda Lorena Pereira Villalobos, identity card N° 4-0105-0076; 4) Alejandro López Mc Adam, identity card N° 6-0106-0565; 5) Lupita Chaves Cervantes, identity card N° 1-0596-0893; 6) Milena Conejo Aguilar, identity card N° 1-0624-0446; 7) Francisco Segura Montero, identity card N° 1-0546-0928; 8) Jorge Rojas Vargas, identity card N° 2-0310-0070; 9) Álvaro Fernández Silva with identity card N° 1-0288-0592; 10) Luis Fernando Solano Carrera, identity card N° 1-0455-0325; 11) Alfredo Jones León, identity card N° 1-0467-0555; 12) Rodrigo Montenegro Trejos, identity card N° 4-0075-0723; 13) Alfonso Chaves Ramírez, identity card N° 1-0357-0392; 14) Anabelle León Feoli, identity card N° 1-0466-0883; 15) Ana Virginia Calzada Miranda, identity card N° 1-0434-0791; 16) Eva María Camacho Vargas, identity card N° 4-0113-0745; 17) Rafael Ángel Sanabria Rojas, identity card N° 3-0249-0099; 18) Mario Alberto Houed Vega, identity card N° 1-0376-0780; 19) Rolando Vega Robert, identity card N° 1-0503-0990; 20) Adrián Vargas Benavides, identity card N° 4-0105-0889; and 21) Óscar Luis Fonseca Montoya, identity card N° 4-0080-0442; against articles 236 subsection 1) and penultimate paragraph, article 236 bis, and article 239, all of Law 9544 which reforms the Ley Orgánica del Poder Judicial. They state that, in their opinion, these normative provisions are unconstitutional because, in the process of forming these norms, the legislator incurred in serious violations that infringe, in form and on the merits, the supremacy of constitutional norms and principles, the International or Community Law in force in the country, its uniform interpretation and application, as well as the fundamental rights and freedoms enshrined in the Political Constitution and in international human rights instruments also in force in the country (article 1 of the Ley de la Jurisdicción Constitucional), specifically articles 9, 18, 21, 28 second paragraph, 33, 34, 39, 40, 41, 45, 50, 51, 53, 56, 57, 73, 74, 121:13, 105, 119, 123, 124, 129, 154, 167, and 177 of the Political Constitution, as well as against constitutional and conventional rights of older persons; violation of the protection of a dignified remuneration contained in the Universal Declaration of Human Rights, article 3; Inter-American Convention on the Protection of the Human Rights of Older Persons, articles 3 subsections c), f), and g), 6, 7, and 17; American Convention on Human Rights "Pact of San José, Costa Rica," article 24; improper application of International Conventions on Social Security; violation of the content of articles 25 to 30, 66, and 67 of Convention No. 102 of the International Labor Organization (ILO) called the Convention concerning Minimum Standards of Social Security, as well as against norms of the Ley de la Jurisdicción Constitucional. They state that the standing to bring action is based on Amparo appeals being processed in the Constitutional Chamber, under the following case file numbers: 1) Eduardo Sancho González, identity card N° 1-1038-0073, case file N° 18-008528-0007-CO; 2) Rosa Iris Gamboa Monge, identity card N° 3-0120-0928, case file N° 18-008529-0007-CO; 3) Magda Pereira Villalobos, identity card N° 4-0105-0076, case file N° 18-008530-0007-CO; 4) Alejandro Arturo López Me Adam, identity card N° 6-0106-0565, case file N° 18-008531-0007-CO; 5) Liliana Lupita Chaves Cervantes, identity card N° 1-0596-0893, case file N° 18-008532-0007-CO; 6) Milena Conejo Aguilar, identity card N° 1-0624-0446, case file N° 18-008533-0007-CO; 7) Francisco Antonio Segura Montero, identity card N° 1-0546-0928, case file N° 18-008534-0007-CO; 8) Jorge Rojas Vargas, identity card N° 2-0310-0070, case file N° 18-008535-0007-CO; 9) Álvaro Fernández Silva, identity card N°1-0288-0592, case file N° 18-008536-0007-CO; 10) Luis Fernando Solano Carrera, identity card N° 1-0455-0325, case file N° 18-008537-0007-CO; 11) Alfredo Jones León, identity card N° 1-0467-0555, case file N° 18-008538-0007-00; 12) Rodrigo Montenegro Trejos, identity card N° 4-0075-0723, case file N° 18-008539-0007-CO; 13) Alfonso Chaves Ramírez, identity card N° 1-0357-0392, case file N° 18-008540-0007-00; 14) Anabelle León Feoli, identity card 1-0466-0883, case file N° 18-008541-0007-CO; 15) Ana Virginia Calzada Miranda, identity card N° 1-0434-0791, case file N° 18-008542-0007-CO; 16) Eva María Camacho Vargas, identity card N° 4-0113-0745, case file N° 18-008543-0007-CO; 17) Rafael Ángel Sanabria Rojas, identity card N° 3-0249-0099, case file N° 18-008544-0007-CO; 18) Mario Alberto Houed Vega, identity card N° 1-0376-0780, case file N° 18-008588-0007-CO; 19) Rolando Vega Robert, identity card N° 1-0503-0990, case file N° 18-008616-0007-CO; 20) Adrián Vargas Benavides, identity card N° 4-0105-0889, case file N° 18-008617-0007-CO; and 21) Óscar Luis Fonseca Montoya, identity card N° 4-0080-0442, case file N° 18-010902-0007-CO. They request that, based on the provisions of article 75 of the Ley de la Jurisdicción Constitucional, the Amparo appeals being processed under the indicated case files be considered as pending matters; case files in which the unconstitutionality of the challenged norms has been invoked as a reasonable means of protecting the constitutional rights of the plaintiffs. They state that the norms whose constitutionality is being questioned produce effects that harm—directly and immediately—the fundamental rights of each of their clients, and therefore, as a precautionary measure, they request the immediate suspension of the deductions that are expected to be made from their clients' retirements or pensions; consequently, they request that the conditions prevailing before the entry into force of Law 9544 be maintained, until this unconstitutionality action is resolved, based on the provisions of articles 30 subsection a), 41, 81, and 82 of the Ley de la Jurisdicción Constitucional. They argue that the foregoing is further based on the fact that the Superior Council of the Judicial Branch, through Article VI of Session 46-18 of May 22, 2018, ordered the individual application of the deductions for worker contribution (13%), administrative expenses commission (5/1000), and the special solidarity and redistributive contribution, as provided by Law 9.544, so such deductions would be applied to their clients. They state that, before making the unconstitutionality claims, it is pertinent to highlight that the Judicial Branch, as a Branch of the State under the Rule of Law, has functional, economic, and administrative independence; for its part, the jurisprudence of the Constitutional Chamber has declared that Costa Rica is a Social State under the Rule of Law and that its Government is popular, representative, participatory, alternative, and responsible, exercised by the people and three distinct and independent branches from each other. They add that, as a Branch of the Republic, in accordance with the fundamental norms, principles, and values of the Constitution, the jurisdictional function corresponds exclusively to the Judicial Branch (see rulings number 1148-90 at 5:00 p.m. on September 21, 1990, number 6829-93 at 8:33 a.m. on December 24, 1993, number 5484-94 at 6:54 p.m. on September 21, 1994, and number 1018-97 at 2:45 p.m. on February 18, 1997, of the Constitutional Chamber). For its part, it notes that the economic independence of the Administration of Justice is guaranteed in Article 177 of the Political Constitution by establishing in said norm that the ordinary budget project of the Republic must allocate to the Judicial Branch no less than 6% of the ordinary revenues calculated for the economic year, which includes, among other items, the payment of salaries for servants, and the state and employer contribution for the payment of retirements or pensions. It notes that the legislator's intention with the enactment of that norm in the year 1957—which establishes a constitutionally earmarked expenditure for the Judicial Branch—is to guarantee, among other things, that current servants and the rest of the auxiliary justice personnel have adequate remuneration for the complexity and difficulty of the jurisdictional function, within which retirements or pensions must be considered. They state that the motivations for the reform to Article 177 of the Constitution made it clear that the ratio legis was, on the one hand, to broaden the functional independence of the Judicial Branch at the budgetary level, as well as to constitutionally guarantee that the wages, salaries, retirements, and pensions of the Judicial Branch personnel would be differentiated from those of other public servants by providing them with sufficient resources—at least initially—to maintain decent salaries and pensions and retirements, financed by the budgetary allocation itself that the Court required for the purpose of allowing it to: "...exercise its mission, free from all concern for its economic stability," in the terms proposed by the President of the Republic in the year 1956. They indicate that special attention should be given to the fact that the proponents and deputies who finally approved the reform to Article 177 of the Constitution had the vision that from the budget of 6% of the ordinary revenues of the Republic, the Pension Fund would be financed, thereby substituting the State's obligation to contribute 10% annually of the total wages and salaries paid to its personnel, as a guarantee of independence. They note that the constitutional norm under comment, both from its formulation and inception and currently, prevents the budgetary allocation from becoming an instrument of political intervention in the jurisdictional function, which must be seen in its full extent since the salaries of the judges and auxiliary personnel as well as the pension and retirement regime applicable to them must be strictly related to the work they perform, under penalty of rendering the principle of judicial independence nugatory; hence economic, personal, functional, organic, and institutional independence is essential in a Constitutional State under the Rule of Law. They argue that, accordingly, one way to guarantee the independence of the Judicial Branch is to provide it with sufficient resources to pay all remuneration derived from service relationships, as well as retirements and pensions, in accordance with their constitutionally assigned functions, which leads to the inescapable conclusion that, unlike other general, special, or substitute pension systems, the Judicial Branch Retirement and Pension Fund has a constitutional nature derived not only from Article 73 but also reinforced by the reform of paragraph 3 of Constitutional Article 177. They indicate that, on this point, they agree with ruling N° 5758-2018 at 3:40 p.m. on April 12, 2018, of the Constitutional Chamber, as it states:

"In all this, judicial independence plays a leading role, because in a Constitutional State under the Rule of Law, that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch itself, against any of the other Branches of the State, which also necessarily implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even before the highest authorities of the Judicial Branch. Today, there is no State under the Rule of Law if the Judicial Branch—with all its servants included—does not have real and effective independence." They state that, in accordance with what has been discussed here, any legislation processed regarding the creation, modification, substantial variation, or suppression of strictly jurisdictional bodies or administrative bodies attached to the Judicial Branch, or that creates, substantially modifies, or eliminates those functions, as was done in draft Law N° 19.922, must comply with the mandatory consultation procedure of Article 167 of the Political Constitution; an essential requirement to comply with the principle of constitutional rank of economic, financial, and administrative independence of the Judicial Branch. They argue that, in support of the existence of the constitutional principle of independence and a special regime of retirements and pensions, they consider it necessary to cite the statement of reasons that led to the enactment of Law N°34 of June 9, 1939, called the Ley de Jubilaciones y Pensiones Judiciales, as an addition to the Ley Orgánica del Poder Judicial, when Deputy Teodoro Picado Michalski, on June 2, 1938, expressed:

"The Judicial Branch is one of the three main pillars upon which the Government of the Republic rests; and it is from its servants, who exercise very delicate functions for the very life of Society, that greater enlightenment, probity, and work are demanded, more than from other employees. And it is for this reason, surely, that by asking judicial servants for complete dedication, over long years, to the very important task of administering justice—with the noble aim of ensuring their subsistence upon reaching old age or when due to physical ailments they can no longer work—that the enactment of a law contemplating that difficult situation of the officials and employees of the Judicial Branch has been repeatedly urged before the Congress, in different legislative periods" (The highlights are from the brief).

They state that the previous quote possibly comes from the same source that inspired the reform of Constitutional Article 177, through Law N° 2122, which had exactly the same motivations as those expressed by Deputy Picado regarding the issue of the special conditions of responsibility of the judicial servant and the necessary independence that is being developed, in ruling N° 5857-2018 at 3:40 p.m. on April 12, 2018, of the Constitutional Chamber, which, relevantly, states the following:

"It should not be overlooked that the judging persons and the judicial staff in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions that affects the rest of public officials, which makes it of a completely different nature. The regulations that apply to administrative staff throughout the public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality oblige that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the end of the employment relationship. But the principle of equality, enshrined in Article 33 of the Political Constitution, also implies the prohibition of treating unequals as equals, because this results in discrimination contrary to the Law of the Constitution. In the case of judges and judicial officials, there are objective, reasonable, justified conditions founded on the very nature of the jurisdictional function being exercised, to give them different treatment from that of the rest of public servants of the different administrations, whereby, far from incurring discrimination, the principle of equality regulated in the cited constitutional numeral is protected. Which means that if a differentiated retirement regime exists for the jurisdictional sector, this is not due to an arbitrary, subjective, or whimsical decision of the legislator but to the specific and different nature of the jurisdictional function that objectively and constitutionally justifies it" (the highlights are from the brief).

They argue that, according to the previous quote, the independence of the judicial apparatus is fundamental in a Democratic State, where each Constitutional Branch has special conditions in relation to the other Branches of the State, and in the case of the Judicial Branch, that independence stands as a structural condition derived from the Constitution itself, but it also requires personal and functional independence of the figure of the administrator of justice, in relation to those other Branches of the State, and even before the highest authorities of the Judicial Branch. They add that, furthermore, the independence of the judicial official not only has constitutional coverage (Art. 154) but within conventional principles, this function is of great importance, and in that sense, the Inter-American Court of Human Rights has recognized it, in the Case of Poblete Vilches et al. Vs. Chile in a ruling of March 8, 2018, in which it was indicated, relevantly:

"195. The Court emphasizes that the right to be tried by an impartial judge or court is a fundamental guarantee of due process, which must guarantee that the judge or court in the exercise of its function as adjudicator has the greatest objectivity to face the trial. This Tribunal has established that impartiality demands that the judging body involved in a particular dispute approaches the facts of the case lacking, subjectively, any prejudice, and likewise, offering sufficient guarantees of an objective nature that inspire the necessary confidence in the parties in the case, as well as in citizens in a democratic society. The impartiality of the tribunal implies that its members do not have a direct interest, a taken position, or a preference for any of the parties and that they are not involved in the controversy. This because the judge must appear as acting without being subject to influence, inducement, pressure, threat, or intrusion, direct or indirect, but solely and exclusively in accordance with—and moved by—the Law." They indicate that this is so, because the American Convention on Human Rights provides in its numeral 8.1:

"Article 8. Judicial Guarantees.

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

They add that, in accordance with the American Convention on Human Rights, the International Covenant on Civil and Political Rights indicates in its Article 14):

"1. All persons shall be equal before the courts and tribunals. Every person shall have the right to a fair and public hearing by a competent, independent and impartial tribunal." established by law, in the substantiation of any criminal charge brought against her or for the determination of her rights and obligations of a civil nature…” (emphasis from the brief).

It argues that all of the foregoing is also supported by various international human rights instruments; and thus, for example, in the “Basic Principles on the Independence of the Judiciary” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from 26 August to 6 September 1985, and confirmed by the United Nations General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, Principle 11 provided:

“11. The law shall guarantee the tenure of judges for the established periods, their independence and their security, as well as adequate remuneration, pensions and conditions of service and retirement” (emphasis from the brief).

It argues that, in this way, the United Nations recommends to all the countries of the world associated with it that legal norms must guarantee judges remuneration, conditions of service and retirement that are adequate and proportionate to the complexity, difficulty and importance for democracy, which must be understood to cover the entire organization of the administration of justice in both the jurisdictional and administrative spheres. It adds that, likewise, in the “European Charter on the Statute for Judges,” adopted in Strasbourg between 8 and 10 July 1998, in order to achieve real and effective independence of the Judicial Branch and of the officials who administer justice, as well as their collaborators and auxiliaries, paragraphs 6.1 and 6.4 established the following:

“6.1 The professional exercise of judicial functions gives the judge the right to remuneration, the level of which shall be determined with a view to protecting him/her from pressures intended to influence his/her decisions and, more generally, his/her jurisdictional conduct, thereby altering his/her independence and impartiality.

6.4 In particular, the statute shall ensure that a judge who has reached the legal age for ceasing his/her functions, after having performed them professionally for a determined period, receives payment of a retirement pension the amount of which shall be as close as possible to the level of his/her last remuneration from judicial activity” (emphasis from the brief).

It indicates that the cited instrument seeks to achieve a real and effectively independent Judicial Branch during its work activity and, even in its passivity, where it proposes remuneration as close as possible to their last salary, which constitutes a guarantee in favor of the citizenry, such that the adequate remuneration and pension of current judicial officers and judicial assistants, in the terms expressed therein, constitutes the due and reasonable consequence of the exercise of a delicate function of much difficulty and responsibility. It argues that also, the “Statute of the Ibero-American Judge,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on 23, 24 and 25 May 2001, in Article 32, echoes the same principles already cited, when it stipulates:

“Art. 32. Remuneration.

Judges must receive sufficient, lifetime tenure (irreductible) remuneration, commensurate with the importance of the function they perform and with the demands and responsibilities it entails” (emphasis from the brief).

And, in Article 33, it provides:

“Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that they will receive, upon concluding their years of service through retirement, illness or other legally provided contingencies or in the case of personal, family or property damages derived from the exercise of their office, a dignified pension or adequate compensation” (emphasis from the brief).

It notes that it must be borne in mind that retirement and pensions, in the case of judicial officials, form part of the Economic, Social and Welfare Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by the United Nations General Assembly, in its resolution No. 2200 A (XXI) of 16 December 1966; regulations that were also embraced in Report No. 1 of 23 November 2001, rendered by the Consultative Council of European Judges (CCJE) when examining the issue of the independence and irremovability of judges, and which with respect to the issue of judges' salaries, recommended:

“...it is generally important (and especially in the case of new democracies) to establish specific legal provisions guaranteeing judicial salaries protected against reductions and ensuring de facto the ‘increase of salaries in line with the cost of living’” (emphasis from the brief).

It adds that the criteria for the protection of the salaries and pensions of judicial officials contained in these recommendations are fully applicable to the issue of the pensions and retirement of judges and judicial officers in general, since they are intimately related to the principle of independence of the Judicial Branch; regulations that have not only occurred internationally, but have also been the subject of regulation internally within the Judicial Branch, with considerations similar to those stated. It indicates that, on this matter, the Full Court approved the Statute of Justice and Rights of Users of the Judicial System in whose Articles 19, 20, 21, 22, 23 and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets, as principles derived from Constitutional Articles 9, 154 and 177. It argues that Article 24 of that Statute, relating to the material conditions of judicial independence, establishes that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget items…”, which it affirms is intimately related to Article 177 of the Political Constitution, regarding the constitutional allocation of necessary resources in the budgets of the Republic, to guarantee the economic independence of the Judicial Branch. It argues that, likewise, Article 49 of the cited Statute also enshrines, like the international instruments examined, the principle of the lifetime tenure (irreductible) salary of the judge:

“Judges must receive sufficient, lifetime tenure (irreductible) remuneration, commensurate with the importance of the function they perform and with the demands and responsibilities it entails” (emphasis from the brief).

It notes that respect for judicial independence, a democratic principle of balance of Powers, which is one of the aims pursued by Articles 9, 154 and 167 of the Magna Carta, was also the subject of express regulation in the Statute of Justice and Rights of Users of the Judicial System, Article 20, when it provides that:

“The other Powers of the State and, in general, all national or international authorities, institutions and organisms must respect and make effective the independence of the judiciary.” It points out that, precisely, the non-consensual intrusion of the legislative body into the organization and functioning of the Judicial Branch, whether by creating, modifying or suppressing judicial or administrative bodies or competencies, is constitutionally inadmissible as this constitutes a flagrant violation of the principle of judicial independence, unless the procedures are followed, which constitute true counterweights so that the Legislative Branch does not make changes to the norms governing the Administration of Justice. It indicates that the independence of the Judicial Branch is a principle that has a particular and specific nature, distinct from that of the other Branches of the State, since it consists of a protective shield against the intrusion of political power, from which the other Branches of the State are not protected, this being a consequence of the fact that it is the Judicial Branch that administers justice, and therefore, justice must be objective, impartial and free of any external pressure. On this matter, it argues that the economic pressure derived from Law 9544 being challenged is inadequate because it disrupts the principle of the balance of public powers with a harmful result for the real and effective independence of the Judicial Branch. It states that it is important to highlight the historical account of the creation of the Pension and Retirement Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial) that was included in judgment number 2018-005758 of 15 hours 40 minutes of 12 April 2018, through which the facultative consultation of constitutionality of bill 19.922 was discharged, given that more than 79 years have passed since its creation, and it has equity which, as of 30 June 2018, was ₡515,690,192,035 million colones, as well as 3,193 retirees, 747 pensioners and 13,367 active officers.

• A)Regarding Unconstitutionality on procedural grounds (Inconstitucionalidad por la forma), it argues that the violation of the following constitutional principles and norms is alleged: principle of functional and economic independence of the Judicial Branch derived from Articles 9, 49, 73, 154, 167 and 177 of the Political Constitution; principle of independence of powers and democratic principle based on Articles 1, 9, 105, 119, 123, 124, 154 and 167 of the Political Constitution; principle of independence of the organization or functioning of the Judicial Branch arising from Articles 9, 154, 167 and 177 of the Political Constitution; principle of publicity deduced from Articles 105, 123 and 124 of the Political Constitution; principle of technical reasonableness arising from Articles 39, 41 and 74 of the Political Constitution; and violation of the limits of the competence of the Legislative Assembly to establish special contributions, derived from Article 121.13 of the Political Constitution. It indicates that, as follows, it presents the considerations that lead it to establish that, in the process of forming Law 9,544, procedural defects (vicios de forma) were incurred that violate the Political Constitution:
• a)Violation of the Principles of Functional and Economic Independence of the Judicial Branch: derived from Articles 9, 154, 167 and 177 of the Political Constitution: it argues that, in its view, a clear and evident example of intrusion into the independence of the Judicial Branch by the Legislative Assembly is the creation of the Administrative Board of the Fund (Junta Administrativa del Fondo), established in Articles 239 and 240 of Law 9544. It points out that in those articles, a body foreign to the structure of the Judicial Branch is created, affecting the organization or functioning of this Branch, altering the competencies and functions of its highest authority—as the Full Court is—and which is tasked with the administration of the Pension and Retirement Fund (Fondo de Jubilaciones y Pensiones), repealing subsections 12 to 15 of Article 81 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial). It states that these provisions transfer competencies from the Full Court, the Superior Council (Consejo Superior) and other administrative bodies of the Judicial Branch, to the Administrative Board of the Fund created in Law 9544, granting it functional, technical and administrative independence, but also conferring upon it instrumental legal personality and charged with the Administration of the Pension and Retirement Fund. It adds that, with the approval of Law 9544, the Legislative Branch radically modified—despite the negative opinion of the Supreme Court of Justice—the functions under the charge of the Full Court and the Superior Council contained in the Organic Law in force before the reform, so it can be concluded that there was a direct injury to the independence constitutionally granted to the Judicial Branch by Articles 9, 11, 152, 154, 167 and 177 of the Political Constitution. It argues that Law No. 9,544 included in its content matters reserved and specific to the organization or functioning of the Judicial Branch, which implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch (art. 152 constitutional), with a clear violation of the mandatory consultation ordered in Article 167 of the Political Constitution. It affirms that the Legislative Assembly disregarded the negative opinion of the Supreme Court of Justice when it was consulted on the report of the Special Commission, without the formalities of a mandatory consultation (consulta preceptiva), despite the fact that, due to the nature of the bill and the invasion of the Judicial Branch's functions—equivalent to police intervention—the legislative body was obliged to necessarily consult the reform bill of the Retirement and Pension Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial) No. 19,922, under the terms provided in Article 167 of the Political Constitution, since the provisions contained therein substantially modified the organization or functioning of the Judicial Branch. It argues that the intrusion of the reform being challenged into the organization or functioning of the Judicial Branch is so evident that it eliminates from the Superior Council the competence granted to it by the Organic Law to administer the Fund, precisely in accordance with the investment policies established by the Full Court itself, as was contemplated in Article 81, subsection 12 of that Organic Law, today illegitimately repealed. It accuses that, specifically, in the process of forming Law 9,544, violations to the Political Constitution were incurred:
• 1)the independence of the Judicial Branch was breached despite the fact that the Original Constituent gave clear signs of its intention to guarantee it for the Judges of the Republic and judicial assistants, both at the budgetary, organizational or functioning level, by promulgating norms such as Articles 9, 154, 167 and 177 of the Political Constitution, which were disregarded by the Legislative Assembly.
• 2)the economic independence of the Judicial Branch guaranteed in Article 177 of the Political Constitution is breached in that it provides that, from the ordinary budget of the Republic, no less than 6% of the ordinary revenues calculated for the economic year must be allocated to the Judicial Branch, which includes the payment of salary for active workers, and of retirement and/or pensions for inactive ones.
• 3)in support of what is indicated in the previous conclusion, it considers that the remuneration system for active and retired judicial employees has constitutional protection in the provisions of Article 177 of the Political Constitution and, consequently, they constitute essential elements of the organization or functioning of the Judicial Branch, which implies that the bill processed under file No. 19,922, aimed at modifying the benefits of retirees and pensioners of the Judicial Branch, as well as the benefit profile of active employees, mandatorily had to be subject to mandatory consultation (consulta preceptiva) of the Full Court, by the constitutional mandate established in Article 167 of the Constitution.
• 4)the Pension and Retirement Fund of the Judicial Branch has constitutional standing since the legislator itself wanted the members of that Branch to have a salary and a pension or retirement commensurate with the responsibilities of the functions they performed, arguing that, furthermore, the Fund has existed since before the enactment of the Political Constitution of 1949 as it was created through Law No. 34 of 9 June 1939, which added to the Organic Law of the Judicial Branch in force at that time the system of retirement and pensions for judicial officials and officers, considering that, for this reason, any modification that is to be made to the Fund requires compliance with a constitutionally regulated process in which, among others, a mandatory consultation is ordered in accordance with Article 167 of the Political Constitution, which it affirms was not observed in the specific case.
• b)Violation of Article 167 of the Political Constitution by omitting the Mandatory Consultation on Bill No. 19,922 to the Supreme Court of Justice: It indicates that, among the most controversial issues in the reform process of Title IX of the Organic Law of the Judicial Branch through the bill of legislative file No. 19,922, is defining whether or not it should have been consulted to the Full Court, by virtue of the provisions of Article 167 of the Political Constitution. It argues that, to try to give a coherent explanation, theories have been developed by the Legislative Assembly—and other actors in the formation of the law—in favor of the mandatory consultation and others to the contrary, all based on the prior assessment made of the scope of the constitutional terms “organization or functioning”; however, it argues that it hereby settles that dilemma and affirms that, due to the content of the law whose constitutionality is questioned, because it is a modification to the Organic Law of the Judicial Branch and by virtue of the constitutionally enshrined principle of judicial independence, the bill should have been consulted to the Full Court, complying with the rite imposed by canon 167 of the Political Constitution. It adds that the Legislative Assembly and, in particular, the Special Commission designated to process said bill, were obliged by express and mandatory provision of constitutional Article 167, to consult the bill before it was ruled upon and the vote required to depart from the opinion of the Supreme Court of Justice was a qualified majority of all the deputies. Notwithstanding the foregoing, it argues that, in the specific case, those situations did not occur in the manner ordered by the Political Constitution and, consequently, the enacted reform being challenged is unconstitutional. It recalls that Article 167 of the Political Constitution expressly states the following:

“For the discussion and approval of bills relating to the organization or functioning of the Judicial Branch, the Legislative Assembly must consult the Supreme Court of Justice; to depart from its opinion, the vote of two-thirds of the total members of the Assembly shall be required” It highlights that the cited norm is clear in indicating that a mandatory consultation to the Supreme Court of Justice is required for the discussion and approval of bills when they affect the organization, as well as that, to depart from the opinion given by the Supreme Court of Justice, the vote of two-thirds of the total members of the Legislative Assembly is required; the foregoing, it affirms, by virtue of the principle of independence of powers that governs the country, such that, therefore, regarding the organization or functioning of the Judicial Branch, the constitutional faculty of self-regulation is included, due to the autonomy that derives from constitutional Articles 9 and 154, so that if the internal jurisdictional and administrative organization has been regulated by laws that respond to the initiative of the Judicial Branch itself, the modifications to that internal order which is protected by the Division and Independence of the Powers of the Republic, must be consulted so that there is no undue intrusion that infringes the Political Constitution. It adds that, in relation to the scope of the terms contained in constitutional Article 167, it must be indicated that the biased interpretation of judgment No. 5758-2018 of 15 hours 40 minutes of 12 April 2018 that analyzed the Facultative Legislative Consultation No. 17-017148-0007-CO, merits a separate analysis to manage to locate the scope that the Constitutional Chamber itself has given to the terms “organization or functioning,” which would be meaningless if in their interpretation they are disassociated from the principles of constitutional rank of independence and separation of powers, embodied in Articles 9, 154, 167 and 177 of the Political Constitution.

• c)Scope of the terms “organization or functioning” and the violation of Article 167 of the Political Constitution: It indicates that the Constitutional Chamber, based on various resolutions, has been interpreting the terms “organization or functioning” based on each of the particular legal situations that have been submitted to its knowledge, such is the case of judgments 1995-3063 of 15 hours 30 minutes of 13 June 1995 and 2002-4258 of 9 hours 40 minutes of 10 May 2002, which are cited in judgment No. 5758-18 cited through which the Consultation of Constitutionality of Bill No. 19,922 is discharged. In accordance with the reading of said judgments, it concludes that:
• 1)the matter concerning the Fund can be excluded from the obligatory consultation to the Supreme Court of Justice, when what is consulted refers to other special or general pension and retirement regimes that do not affect the group covered by the Pension and Retirement Fund of the Judicial Branch, therefore the affectation will be determined by the level of impact of the matter on the organization or functioning.
• 2)the jurisdictional function in a broad sense should not be confused with the strictly administrative function of administration of justice; the jurisdictional function is a special function different from the administrative function of other public officials, and the Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the jurisdictional function compared to the merely administrative function, even though judges and judicial assistants are also public officials.
• 3)finally it considers it important to indicate that the Framework Law on Pensions could not have had any impact on the Judicial Branch since, expressly, clause 2) of Law No. 7302 indicates that: “This law shall not be applicable to persons covered by the Disability, Old-Age and Death Regime, administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) nor to the Pension and Retirement Regimes of the National Teaching Profession or the Judicial Branch...” (emphasis from the brief).

It argues that, if one looks for precedents from the Constitutional Chamber on the scope of constitutional Article 167, one must resort to judgments where it has analyzed—concretely—the terms “organization or functioning,” under the protection of the principle that nourishes them, which is the independence and separation of powers. It notes that, in this search, it located judgment number 2008-5179 of 11:00 hours of 04 April 2008, cited by judgment 5758-2018 of 15 hours 40 minutes of 12 April 2018, in which, it considers, the scope of both terms is comprehensively addressed in light of the principle of independence and division of powers and functions, when it expressly states:

“... that a bill deals with such aspects when its articles contain explicit norms that provide for the creation, substantial variation or suppression of strictly jurisdictional bodies or those of an administrative nature assigned to the Judicial Branch or else creates, ex novo, substantially modifies or eliminates materially jurisdictional or administrative functions...” (emphasis from the brief).

It considers that what the Chamber said fully coincides with the scope and content of constitutional Article 167 insofar as the essential principles of independence and division of powers are preserved when the Legislative Branch is obliged to conduct consultations on bills that affect its organization or functioning. It adds that judgment No. 2008-5179 of 11:00 hours of 04 April 2008 of the Constitutional Chamber explains the cases of obligatory consultation in a precise manner, by highlighting that the Judicial Branch enjoys functional, administrative and economic independence granted by the Political Constitution, pursuant to Articles 9 and 177. It considers that bill No. 19,922, in which the reforms to Title IX of the Pension and Retirement Fund of the Judicial Branch were processed, should have been formally consulted to the Supreme Court of Justice, as is clear from a reading of the text of constitutional Article 167, because this bill contains norms that are directly related to the organization or functioning of the Judicial Branch, since it eliminated functions from the Full Court, the Superior Council, the Executive Directorate, the Auditoría (Audit Office), the Human Resources Management Directorate (Dirección de Gestión Humana) and the Financial Accounting Department, all of the Judicial Branch, to create a Fund Administrative Board as a body of the Judicial Branch—over which the Full Court as the superior body of this Branch has no competence—which it in turn considers creates a conflict of a constitutional nature because the competencies and functions that the Political Constitution confers upon the Judicial Branch are invaded, by virtue of the principles—of such rank—of the division of powers, the independence of the powers, and the democratic principle. It indicates that the correct text of the Political Constitution is “organization or functioning”; the letter “o” is a disjunctive conjunction, such that, together the two words form an entity that constitutes a technical system of institutional management, in which an organic structure is established with its competencies and the relationships of coordination and control between the bodies (organization), which is complemented by the scope of the exercise of functions and competencies through the bodies with a high degree of autonomy. Thus it says that, in the case of Article 167, the terms “organization or functioning” are alternatives, which denotes equivalence, meaning that the two concepts refer to the same thing as they are an integral part of a single entity and therefore it considers it is an error to believe that they are two different things with discriminatory treatment. It adds that, in judgment No. 2008-5179 of 11:00 hours of 04 April 2008, the Constitutional Court made a broader analysis of the terms “organization or functioning” used in Article 167 of the Political Constitution to establish the cases in which bills in the legislative stream must be obligatorily consulted to the Supreme Court of Justice; therefore it was clearly determined there that, in cases where there is a variation or suppression of jurisdictional or administrative bodies—which are normally regulated in its Organic Law, special laws or codified laws—the consultation is obligatory, as a means to maintain the constitutional principle of balance of powers between the Judicial and the Legislative. It indicates that, in its view, this is understood from the related judgment when the following is expressed:

“...it is worth noting that such an interpretation is imposed for the sake of maintaining the balance of powers, without privileging one or another constitutional body, so that each can exercise its functions independently and separately as the constitutional text itself imposes (article 9 of the Constitution). In other terms, the precision of such concepts avoids any collision, overreach or exacerbation of the respective functions, for the sake of maintaining the balance and containment of the powers, since the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Powers. Indeed, a broad interpretation of the terms employed by the original constituent, by the Full Court, could lead to certain matters that, strictly speaking, are not related to the organization and functioning of the Judicial Branch, unjustifiably warranting a reinforced law, thereby slowing down or unnecessarily hindering the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional norm, by erroneously considering that the bill does not deal with the organization or functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch” (emphasis from the brief).

In this sense, it considers that there is not the slightest doubt that the Constitutional Chamber has understood that, matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect affectation of the jurisdictional function, oblige the legislative body to pose the consultation in the terms expressed in Article 167 of the Political Constitution, due to the integration of the constitutional principle of independence into those concepts. It argues that this logical form of interpretation makes sense, not only because it is a natural derivation of Article 167, but also of other constitutional norms such as numerals 9, 154 and 177 of the Political Constitution.

It argues that the foregoing interpretation could not be otherwise, since any affectation or modification of the administrative organization of the Judicial Branch in general—and not only matters pertaining to jurisdictional or judicial bodies in the strict sense—has repercussions on the Administration of Justice service it provides and on the independence constitutionally guaranteed to that Branch and to the judges as officials called upon to dispense justice. It adds that, regarding the issue of the functional or organizational independence of the Judicial Branch, Judgment No. 5857-2018 of 15:40 hours of April 12, 2018, of the Chamber, is consistent with the content of Judgment No. 2008-5179 of 11:00 hours of April 4, 2008, which correctly stated, in pertinent part, the following:

“On this point, it is important to clarify that the functional independence of the Judicial Branch, established in Article 9 and reinforced in Article 154, both of the Political Constitution, necessarily implies the power of said Branch of the Republic to give itself its own organization, in order to prevent, especially, the intrusion of political interests into its function. And this organizational independence, both administrative and jurisdictional, is also protected in Constitutional numeral 167. In this sense, it is a serious conceptual error to confuse or assimilate the jurisdictional function in a broad sense, including the auxiliary function to the jurisdictional function, with the strictly administrative function. The jurisdictional function is a special function, different from the administrative function performed by officials of the Executive Branch or the decentralized sector. The Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the jurisdictional function compared to the merely administrative function, even though judges and judicial auxiliaries are also public officials. Precisely, one of those characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is independence, in its double aspect: that of the Judicial Branch itself considered as such, and that of the judge and other auxiliaries of the jurisdictional function. To understand the delicate task performed by the judges of the Republic, with the collaboration of the officials who assist and aid them in their functions and without whom they could not properly exercise their function, it suffices to bear in mind that they decide the cases submitted to their knowledge with the force of res judicata; that is, they decide what the truth is with the force of legal authority in each case, without their decision, once that condition has been reached, being, in principle, subject to review. This implies an extremely delicate function and a great responsibility, which could not be carried out if the functional independence of the Judicial Branch and of the judges who comprise it is not guaranteed. And, in this sense, there can be no true independence if the salaries and pensions and retirements of judges and judicial auxiliaries are not commensurate with their responsibilities, which are vastly more serious than those of any other official exercising a merely administrative public function. Hence, the two can in no way be equated, neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights” (emphasis appears in the brief).

It argues that, according to the judgment transcribed above, it is clear, forceful, and precise that any provision affecting the functioning of the Judicial Branch—understood as the mandate to administer justice, whether by the judges or the bodies that assist them—is considered part of the organization or functioning of the exclusive competence granted to it by the Political Constitution in Articles 9 and 154. Therefore, any reform that could affect the independence and separation of powers, present or future, of current, future, or already retired judges, must be mandatorily consulted to the Corte Plena, in order to guarantee and comply with a constitutional principle of rational balance of powers—between the Legislative and the Judicial Branches. It adds that, although it is a truism, it must be borne in mind that both the Judicial Branch and its servants, due to the special work they perform, must be permanently vested with independence from their hiring as active employees until the moment of their cessation of employment—as pensioners or retirees—and therefore, any change to the Ley Orgánica del Poder Judicial that contains the norms guaranteeing such independence must be consulted by the Asamblea Legislativa, in advance, and in accordance with the procedures for lawmaking derived from constitutional and supra-constitutional principles such as the democratic principle, the principle of publicity in lawmaking, the right of amendment, and the independence of Powers. It indicates that, consistent with the foregoing postulate, Judgment No. 5857-2018 of 15:40 hours of April 12, 2018, precisely and correctly stated that:

“… There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional State of Law in modern societies. This is because, unlike decisions made in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata. This not only implies great responsibility, but also the need to have a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, appears as a conditio sine qua non for the exercise of that delicate function. It is the judge’s responsibility to decide on the sole and possible interpretation of the law, the Constitution, and the conventionality parameter, which would be impossible without due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the judge proper and for the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, they cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies, regarding the subject matter of this consultation, that the retirement or pension of judicial servants not be the same as that of the rest of the administrative public sector. What is decided with the force of res judicata in judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, therefore, on social peace. In all of this, judicial independence plays a leading role, because in a Constitutional State of Law, that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch proper, vis-à-vis any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even vis-à-vis the hierarchical superiors of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch—with all its servants included—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank of the hierarchy of norms, to the point that it is also stipulated as a Human Right” (emphasis appears in the brief).

It argues that, indeed, one must start from the premise that the right to retirement or pension, as well as salary, in the case of active workers, have constitutional rank as a fundamental right and even as a human right, according to Judgment No. 1147-90 of 16:00 hours of September 21, 1990, of the same Constitutional Chamber, which declared that the right to a pension or retirement is a constitutional, fundamental, and human right, which has special protection under constitutional norms and International Conventions, which in the case of the Judicial Branch is especially aggravated regarding its modification, by the fact of the existence of an additional principle called independence. It adds that, in summary, according to the precedents themselves, in Judgment No. 1995-3063 of 15:30 hours of June 13, 1995, the Chamber resolved that, in the case of the Ley Marco de Pensiones, there was no constitutional obligation to consult the Judicial Branch on the respective bill for the simple reason that said bill did not affect judicial servants, as Law No. 7302 expressly excluded them; and in the case of Judgment No. 2002-4258 of 9:40 hours of May 10, 2002, the Chamber ruled out the violation of Article 167 of the Political Constitution due to the fact that the reform to the Régimen de Jubilaciones y Pensiones of judicial servants that was challenged had no relation to the organization or functioning of the Judicial Branch, and only referred to the term of the functioning of the Judicial Branch, without making any reference to the issue of its organization. It adds that, finally, in Judgment 2008-5179 of 11:00 hours of April 4, 2008—unlike the two preceding judgments—it did not exclude the matter relating to the Fondo of the Preceptive Consultation to the Corte Suprema de Justicia per se; rather, that condition of exclusion from consultation will remain when the bill has no direct relation to the “organization or functioning” of the Judicial Branch. It affirms that any bill to reform the law that affects the Fondo and, therefore, its active, retired, or pensioned judicial servants, fits within the definition of the concepts “organization or functioning of the Judicial Branch” of Constitutional Article 167. Therefore, it considers that, in application of the constitutional principle of independence and balance of powers, the Asamblea Legislativa should have mandatorily consulted the content of any bill, such as the one related to No. 19,922 that reformed Title IX of the Ley Orgánica del Poder Judicial, challenged here.

• d)Violation of the democratic principle, Articles 1, 9, 105, 119, 123, and 124 of the Political Constitution and the obligation of the Asamblea Legislativa to consult Bill No. 19,922 to the Corte Suprema de Justicia: it indicates that, as already stated, in its opinion, in the case of the Judicial Branch, the preceptive consultation provided for in Article 167 of the Political Constitution obligates the Asamblea Legislativa to request the opinion of this supreme Branch when a bill is being discussed that affects the organization or functioning of the Judicial Branch, and it adds, “or its constitutional independence,” as it indicates it stated supra by affirming that the changes to Title IX of the Ley Orgánica del Poder Judicial resulting from the reform affected the independence and the organization or functioning of the Judicial Branch, thereby breaching the supra-constitutional principle called the “democratic principle,” which seeks to maintain a just balance among the branches of the State and guarantee the right of amendment of regulations affecting those institutions that, constitutionally, have special protection, as is the case of the Judicial Branch. It adds that the democratic principle was developed by the legislator in Article 157 of the Reglamento, providing that when, during the discussion of a bill, it is determined that it must be consulted to the Judicial Branch, and the Committee had not done so, consideration of the bill shall be suspended, proceeding to make the corresponding consultation. It points out that the democratic principle is defined as the requirement for the acts of the governors to be subject to the supremacy of the Constitution and, consequently, limits legislators regarding their legislative discretion. It argues that, in this regard, the Constitutional Chamber, in Judgment No. 2006-003671 of 14:30 hours of March 22, 2006, effectively applies the content of said principle by resolving that:

“… Up to this point, however, the Chamber considers that the discussion of this bill was devoid of sufficient opportunity for reflection and debate, and therefore contravenes essential features of the democratic principle… the procedure prevented an effective debate consistent with the democratic principle.” It points out that parliamentary procedure is a guarantee; it does not have an end in itself, but rather fulfills an instrumental and guarantee function. It adds that, once the consultation has been submitted, if 8 business days elapse without a response being received, it will be understood that the consulted body has no objection to the bill, and should the consulted body make observations on the bill, it will automatically pass to the Committee for its respective processing; regarding Preceptive Consultations, the Political Constitution requires qualified votes when it is agreed to depart from the negative opinion of the consulted body. It indicates that, in the specific case, since the Corte Plena stated that Bill No. 19,922 affected the organization or functioning and independence of the Judicial Branch, it is evident that the bill had to be preceptively consulted, and therefore, once said request for an opinion from the Corte Plena was made and had been answered negatively, 38 votes were required for the approval of the bill. It points out that, in the case under study, in Ordinary Session of the Legislative Plenary No. 163, held on April 19, 2018, when the bill was given its Second Debate, it was approved by a meager vote of 34 votes in favor and 9 against, consequently failing to comply with the constitutional mandate. It adds that another essential aspect in the formation of laws is the form and time in which institutional consultations must be carried out when, by legislative mandate, this requirement must be fulfilled, which is not merely formal but substantial and necessary for validity so that the new legislation being formed can produce its effects in accordance with the Political Constitution. It adds that, despite the existence of a constitutional obligation to consult the Corte Plena, the truth is that the text finally consulted and the time at which the consultation was made (after a report was approved by the Special Committee) also breached the democratic principle because the bill consulted to the Corte Plena was published in the Diario Oficial subsequently and was not even the text of the bill, but rather an affirmative majority report of the Special Committee, which underwent major modifications before being approved in first and second debate. It states that the Special Committee that processed Bill No. 19,922 requested an opinion from the Corte Suprema de Justicia on the indicated reform bill, through official communication AL-20035-OFI-0043-2017 of July 31, 2017, but said consultation was on an affirmative majority report, different from the bill that was finally approved in First Debate in the Extraordinary Session of the Legislative Plenary No. 14 of October 30, 2017. It recalls that Article 126 of the Reglamento de la Asamblea Legislativa provides:

“When a bill is discussed in the heart of a committee or a motion is approved that, in accordance with Articles 88, 97, 167, and 190 of the Political Constitution, must be consulted, the respective consultation shall be made by the president. The consultations of the committees shall be considered as made by the Assembly itself and, where pertinent, the provisions of Article 157 of this Reglamento shall apply” (emphasis appears in the brief).

It states that, in accordance with the foregoing, the Presidency of the Special Committee should have ordered the Preceptive Consultation to the Corte Suprema de Justicia and indicated that it was formulated under the protection of Constitutional Article 167 and in accordance with Articles 126 and 157 of the Reglamento; however, that consultation of a constitutional nature was not formulated. It indicates that, through official communication AL-20035-OFI-0043-2017 of July 31, 2017, the Special Committee formulated an institutional consultation, without any formality, on the affirmative majority report, but that procedure cannot replace the Constitutional Preceptive Consultation. It states that, in response to the institutional consultation formulated by the Asamblea Legislativa, in the reply provided by the Secretaria General of the Corte Suprema de Justicia through official communication No. SP 252-17 of August 10, 2017, it was clearly established that the affirmative majority report that reformed the Ley Orgánica del Poder Judicial did contain norms affecting the organization or functioning of that Branch, and therefore a negative report was rendered. It indicates that, in its conclusions and in pertinent part, it stated:

“It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial servants because it means a reduction in retirement, even though they have met all the legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding quotas; the payment of income; contributions both to the Fondo de Jubilaciones y Pensiones del Poder Judicial and to the system of the Caja Costarricense del Seguro Social and another series of burdens that, if the text as proposed by the reporting Committee were approved, would result in confiscatory actions.

It cannot be ignored that the creation and nature of the Fondo de Jubilaciones y Pensiones del Poder Judicial responds to criteria of stability, independence, preparation, and suitability, as established by Article 192 of the Political Constitution, with the purpose of promoting the permanence of trained and qualified personnel in the institution, and the reduction of the retirement benefit represents a disincentive for the entry of valuable professionals who, considering the economic outcome of a future assessment, would prefer to pursue their professional career in another labor sphere.

The judicial, prosecutorial, Public Defense career, and that of personnel in general is affected, who, having more burdens on their salary—four times more than in other regimes—would receive a lesser benefit.

On the other hand, the renewal of personnel who manage to remain is affected. The Judicial Branch would have older employees who continued working only because of the reduction their income would suffer if they retired.

The judicial population would face a dilemma, where, although it is true they desire to opt for that right and are motivated to retire and rest, they are placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to the pension, and those natural due to age-related reasons. However, that process also has its restrictions; from a legal standpoint, the Ley Orgánica del Poder Judicial prohibits retired persons from opting for another job, and socially, it is a reality that after the age of forty there are factual limitations regarding labor reincorporation. It has great relation to the structure and functioning, since it reduces the competitiveness of the Judicial Branch in the labor market, to the detriment of the quality of the Administration of Justice. The salary of the positions is diminished by the contribution to the pension and retirement regime, which is four times greater than the contribution to other regimes. This hinders the recruitment of human resources and the public service is harmed.

Furthermore, the regulation of the Fondo de Jubilaciones y Pensiones del Poder Judicial should not be assessed solely from an economic perspective, because we are dealing with fundamental rights—inalienable—associated with every working person, who during their working years contributed a higher percentage than the general one to a regime with the expectation of having a pension that allows them to meet their needs and enjoy, together with their environment, their retirement years peacefully and with quality of life.

The imposition of this new tax burden affects vulnerable population groups—such as older adults—harming the weakest party, the one that precisely requires greater protection from the State.

The proposed tax is imposed at a time in the life of the retired person when they are most vulnerable, close to or already of old age. It cannot be overlooked that it is in this stage where people generally require greater medical care, special care, among others, and that during their working life, some to a lesser or greater extent, according to the income received, contributed to the regime with the expectation of having the resources foreseen to face this process, and if this Bill were approved, said life plan would be truncated.

It would cause a significant social impact, because people in their retirement suddenly lose an important part of their income, but maintain a status of pre-established expenses, which becomes a repercussion not only economic but also on their health, being contrary to the objective foreseen for a pension system, which is to have sufficient income during life after working life, a scenario in which it is important to remember that on many occasions, the retired person continues to have under their care and support other older adults or minors.

Taking into account the observations raised regarding the Bill processed under expediente 19922 (20035), which find adherence and support in the actuarial study conducted by the IICE and based on the powers that Articles 167 of the Political Constitution and 59 subsection 1) of the Ley Orgánica del Poder Judicial confer, it is estimated that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Asamblea Legislativa must take into account what was stated by the Corte Plena in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from said binding opinion.

This has been made known to that Legislative Branch in other bills consulted, such as those seen in sessions of the Corte Plena numbers 57-14 of December 8, 2014, Article XVIII; 13-15 of March 23, 2015, Article XXXVII; 2-16 of January 18, 2016, Article XVIII; and 14-17 of May 30, 2017, Article XIX, among others, in which the Corte Plena has deemed it necessary to point out the incidence of the bills on the internal structure of the Judicial Branch.

As a corollary, regarding the Bill processed under expediente No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch” (emphasis appears in the brief).

It considers that violations in the lawmaking procedure of Law 9.544 are confirmed when comparing what occurred in the processing of legislative expediente No. 19,922 with the minutes of the Corte Plena, finding the following relation of facts:

• 1)By official communication No. AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Área de Comisiones of the Asamblea Legislativa made an institutional, non-preceptive, consultation to the Judicial Branch regarding the affirmative majority report of the Special Committee on the bill reforming the retirement and pension regime of the Judicial Branch.
• 2)The consultation of the affirmative report of the Special Committee did not meet the constitutional requirement because what was consulted was not a bill in formation in its final version, but a mere affirmative majority report.
• 3)In response to the consultation, the Corte Suprema de Justicia issued its negative opinion through official communication No. SP-253-17 of August 10, 2017, indicating that it did not agree with the consulted bill because it affected the organization or functioning of the Judicial Branch.
• 4)In the Minutes of the Corte Plena No. 26-17 of August 7, 2017, Article No. XXX, in response to the institutional consultation, the following agreement was adopted, which textually states: “It was agreed: 1.) To acknowledge the presentation by the Dirección Jurídica as given. 2.) To accept the report on the consulted bill and to make it known to the Legislative Plenary and to the Special Committee Charged with Knowing and Reporting on the Bill called: ‘Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19,922,’ hereinafter called: Reform of Title IX of the Ley Orgánica del Poder Judicial, on Judicial Retirements and Pensions of the Asamblea Legislativa, in response to the consultation formulated, with the express indication that this Court issues a negative opinion and opposes the consulted bill, as it affects the organization, structure, and functioning of the Judicial Branch. 3.) To acknowledge the statements of Magistradas Rojas, Arias, and Magistrado Gamboa as given” (emphasis appears in the brief).
• 5)Subsequent to the institutional consultation made to the Judicial Branch on the reported bill of July 27, 2017, its publication was made in Alcance No. 189 of August 4, 2017, which is absurd if one considers that the purpose of the publication is to publicize a bill in formation so that it may be known by third parties who can cooperate with the lawmaking process; publishing an affirmative report of a committee is not the same as publishing a bill that admits amendments and changes before being approved by a committee, especially when the subsequent processing will be done through an abbreviated procedure under Article 208 bis) of the Reglamento, which was agreed by the Legislative Plenary in Ordinary Session No. 37 of June 30, 2016.
• 6)It informs the Chamber that the affirmative majority report dated July 27, 2017, consulted to the Corte Plena, was not the exact text voted on in First Debate of the Extraordinary Session of the Legislative Plenary No. 14 of October 30, 2017, since changes are observed throughout the entire body of articles introduced between July 27 and October 30, both of 2017, which obligated the Asamblea Legislativa to formulate a new consultation because said changes were added to the bill with substantive motions via Article 137 of the Reglamento, which stands as a new constitutional violation of the legislative procedure followed in the approval process of Law 9.544.

It states that another relevant aspect in the procedure followed by the Asamblea Legislativa to process Bill No. 19,922 is that the legal advisory office of the Asamblea Legislativa itself, when issuing the Integrated Legal-Economic Report on the substitute text to Expediente No. 19,922, No. AL-DEST-ITS-307-2016 dated September 22, 2016, “LEY DE REFORMA DEL TÍTULO IX DE LA LEY ORGÁNICA DEL PODER JUDICIAL No 8 DE 29 DE NOVIEMBRE DE 1937 Y SUS REFORMAS,” recommended making the preceptive consultation to the Corte Plena by mandate of Constitutional numeral 167 and warned that, should it be formulated and be negative, the subsequent vote in the Legislative Plenary would require 38 votes of the total number of deputies. It points out that, specifically, it was stated:

“… LEGISLATIVE PROCEDURE Voting In accordance with Article 119 of the Political Constitution, for its approval, this bill requires an absolute majority of the votes present.

It must be borne in mind that, in accordance with Constitutional Article 167, if the deputies depart from the opinion of the Corte Suprema de Justicia, the approval of this bill will require the vote of two-thirds of the total membership of the Assembly.

Delegation This bill, in accordance with Article 124 of the Political Constitution, is NOT delegable to a Committee with Full Legislative Power. The proposed reform to Article 243 of the Ley Orgánica del Poder Judicial establishes the income tax applicable to active workers and retirees, a deduction proposed on the resulting gross income, once the other mandatory legal deductions have been applied.

Consultations 1. Preceptive ° Corte Suprema de Justicia 2.

Optional consultations ° Office of the Attorney General of Costa Rica (Procuraduría General de Costa Rica) ° Superintendency of Pensions (Superintendencia de Pensiones) ° Ministry of Finance (Ministerio de Hacienda) ...” (the emphasis is from the brief).

He adds that the technical recommendation went further and warned that, within the legislative procedure, it had to be considered that, in the event of a vote in the plenary on bill No. 19,922 and in accordance with Article 119 of the Political Constitution, an absolute majority of the votes present was required but, pursuant to Article 167 of the Constitution, if the deputies departed from the criterion of the Supreme Court of Justice, a supermajority vote of two-thirds of the total number of deputies was required. He argues that, in relation to file No. 19,922, the bill was voted on in the First Debate in Extraordinary Session No. 14 of the Legislative Plenary on October 30, 2017, being approved with only 31 votes in favor; and the Second Debate in Ordinary Session No. 163 of the Legislative Plenary on April 18, 2018, in which the bill was approved with the concurrence of 34 votes in favor and 9 against, also rejecting on that occasion a motion for review of the previous vote. He argues that, in accordance with the provisions of Article 167 of the Constitution and Article 157 of the Regulations of the Legislative Assembly, to approve in the Second Debate the bill from the indicated file, which referred to the modification of Title IX of the Organic Law of the Judicial Branch, a qualified vote was required, that is, at least 38 votes out of the total of deputies, it being evident thereby that, in the law-making process, the constitutional rule of Article 167 of the Political Constitution was breached, which implies that, in his opinion, the unconstitutionality action must be declared with merit.

• e)Violation of the principle of publicity when processing bill No. 19,922, Articles 105, 123, and 124 of the Political Constitution: he states that, in the processing of the bill under study, the Legislative Assembly agreed to carry out an abbreviated procedure, different from the ordinary procedure normally used to legislate, the legal basis for said decision being Article 208 bis of the Regulations of the Legislative Assembly. He indicates that, as a general rule, said Regulations establish in that numeral the singular non-derogability, by means of motions, of the procedures established therein for the processing of laws and, as an exception to said rule, it provides a special formula to establish procedures through which said Regulations are amended or bills that require an absolute majority are sanctioned, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions, regardless of the vote required for their approval. He considers that the exception in Article 208 bis of the Regulations has become a rule of legislative procedure, since each time the majority decides, they could give an exceptional procedure to a bill, which in his judgment generates legal uncertainty and a breach of the democratic principle of constitutional rank established as a rule to be respected by the legislators. He adds that in bill No. 19,922, by a two-thirds majority of its members, the Legislative Assembly decided to establish a special procedure for its processing, under the protection of Article 208 bis, and defined a series of rules that had to be followed. He argues that, being in the presence of an exceptional procedure and not a general rule, strict compliance with what was established in the motion to give expeditious process to the Judicial Branch pension reform bill was a sine qua non condition for respecting the principles of legal certainty, democracy, and amendment; that is, once the motion to fast-track a bill was approved, all deputies should have adjusted to limited participation and the exact fulfillment of the procedural steps agreed upon by exception under the protection of the aforementioned Article 208 bis, but, as can be observed in the processing of the bill, this did not occur and some procedures were violated, such as the publications of the substitute text motions, the deadlines for issuing a report on the bill, among others. He clarifies that for bill No. 19,922 it was not possible to apply the procedure established in Article 208 bis of the Regulations because it was evident that a legislative reform was being made that affected the organization or functioning of the Judicial Branch, which in turn implied that, in case of opposition from the Full Court, a vote of two-thirds of the total members of the Assembly was required; however, the Legislative Assembly, in Ordinary Session No. 37 of the Legislative Plenary on June 30, 2016, established the procedure to be applied for the processing of bill No. 19,922 according to the provisions of Article 208 bis) of the Regulations, defining for this particular case a series of restrictions and limitations for both the deputies and the consulted institutions, as described below:

“Order motion from various deputies: So that, in accordance with the provisions of Article 208 bis of the Regulations of the Legislative Assembly, the following special procedure be applied to Legislative File No. 19,922, "Law for the integral reform of the various pension regimes and related regulations" (...)

2.- SUBSTANTIVE MOTIONS:

(...)

h- If during the study of the file in its committee processing, a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to agree on its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the study of the bill shall be suspended, proceeding also to make the corresponding consultations. If after eight business days no response has been received to the mandatory consultations referred to in this subparagraph h), it shall be understood that the consulted body has no objection to make to the bill.

(...)

4- ORDINARY AND EXTRAORDINARY SESSIONS:

(...)

3- Substantive Motions: a.- Substantive motions shall be received only when they are presented to the Directorate during the first two discussion sessions of the bill. In the second of those sessions, Deputies may present motions until the time it concludes. The Chair shall make them known to the Deputies by the means deemed most appropriate.

b - The Chair of the Legislative Assembly shall determine the admissibility of the substantive motions according to the rules set forth in this motion. Likewise, they shall determine their joint discussion, for which they shall group them by deputy. They shall also group for discussion in a single act identical or reasonably equivalent motions from different Deputies, in which case they shall be grouped by content, regardless of who proposed them. As a general rule, each Deputy may present a single substantive motion per article, whether to modify, add to, or delete it in its entirety. For “complex” articles, the rules set forth below shall be followed. If the article contains several modifications, abrogations, or additions, a single motion may be presented for each modification, abrogation, or addition…

c.- When one or more Deputies present identical or reasonably equivalent motions, they shall be admitted by the Chair to be discussed in a single act, though voted on individually...” (the emphasis is from the brief).

He adds that, according to the procedure established to process bill No. 19,922, by application of Article 208 bis of the Regulations, it can be concluded that the participation of the deputies, the Judicial Branch, and other actors was restricted, and although rules were established for the publication of the bills, these were not fulfilled. He considers that the procedure approved by motion 208 bis for the processing of bill No. 19,922 is so restrictive that it gives the impression that the political power that the Legislative Assembly wanted to exercise was above the technical, rational, and constitutional criteria that this type of reform demands, especially considering the independence of the Judicial Branch, according to its essence emanating from Article 9 of the Political Constitution. He argues that the foregoing is fully confirmed when, in the affirmative majority report dated July 27, 2017, the Special Commission tasked with issuing a report on the bill indicated, in the last paragraph before the recommendation to the Legislative Plenary, the following: "...Given the high fiscal and financial significance and the impact that the approval of this bill has in favor of guaranteeing the financial sustainability and adequate administration of the Judicial Branch retirement and pension regime; this commission renders an AFFIRMATIVE MAJORITY REPORT...". He states that, in this sense, it is clear that the application of an abbreviated procedure via Article 208 bis) of the Regulations, in his opinion, is contrary to the Political Constitution because the very text of regulation 208 bis) could be unconstitutional when used for the processing of a bill like No. 19,922. He indicates that one cannot forget that the Constitutional Chamber itself has indicated this in various rulings, thus:

“The democratic principle. Our minority vote agrees with the plaintiff, for the same grounds already expressed in the dissenting votes to ruling number 2005-398, 2008-07687, and 2007-2901 of 5:30 p.m. on February 28, 2007, based on the democratic principle, whose respect is essential for any examination of the conformity or non-conformity with the Constitution of any regulation or act. On this matter, this Chamber has expressed, unanimously, that: / “what the legislative procedure seeks is to ensure compliance with the democratic principle within a society that has adopted it as inherent to its political institutions. Because a perfect democracy is an unattainable ideal, the democratic principle constitutes the parameter that allows deducing the degree of proximity that a given society, at a specific historical moment, achieves with respect to the ideal and its vocation to approach it as much as possible. At a minimum, the democratic principle requires respect for the principles of political participation and representation – including everything concerning respect for minorities – the basis of our political system. The latter unfolds into aspects such as the legitimacy of the means used for the designation of the various representatives and – no less important – the possibility of opposing, through the use of legitimate means, the majority will on the part of groups representing minorities. Based on the previous observations, it can be said that procedural violations that constitute injuries to the democratic principle, the inescapable direction of parliamentary activity, are unconstitutional. Likewise, legislative procedures that, due to being accelerated or impetuous, provoke debates that remain devoid of a process that is thoughtful in quality and reflection, and which, moreover, lack a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial infractions. Furthermore, the omission of publication and the omission of carrying out the constitutionally established mandatory consultations have been considered substantial procedural defects. Regarding the first aspect, as the Legislative Assembly is a representative body of the national community, the publicity of parliamentary proceedings is essential, since sovereignty resides in the people and the deputies are merely their representatives (Article 105 of the Constitution); therefore, their activity must necessarily transcend to the entire community, to the point that some Constitutional Law specialists define it as a publicity body" (see ruling number 2012-002675 at 11:52 a.m. on February 24, 2012) (the emphasis is from the brief).

He adds that it is recorded in the legislative file that the Special Commission rendered an affirmative majority report; however, prior to its approval, a substitute text was presented that was not analyzed nor widely discussed in the Commission session of July 27, 2017, in which a report was issued with the participation of the deputies present. Therefore, according to the approved motion to process said file via Article 208 bis), this implied that the process should have been suspended and the substitute text published again to safeguard the constitutional principle of Publicity and the Democratic principle in order to allow the participation of interested parties. He adds that the corresponding institutional consultations should also have been made again, especially the mandatory ones, in accordance with the provisions of subparagraph h) of point 2) of the procedure defined by the Plenary, to comply with the procedure regulated in Article 167 of the Constitution. He indicates that, therefore, the extraordinary session of the Special Commission on Monday, July 27, 2017, is voidable due to nullity since the bill—technically and legally—was suspended until the text of the bill was published in the Official Gazette La Gaceta –which never happened–, given that what was finally published was the affirmative majority report in Supplement to Official Gazette N° 189 of August 4, 2017, breaching the provisions of subparagraph h) of point 2) of the fast-track procedure, Article 208 bis), approved by the Legislative Plenary – session No. 37 of June 30, 2016 –, and its non-application constitutes a direct violation of the due legislative process which also has constitutional protection. He indicates that, in this regard, the Constitutional Chamber in Ruling 2002-03458 has established that:

“The publication in the Gazette of the bills discussed in the Legislative Assembly is an instrument that can promote popular participation in the adoption of major national decisions, besides constituting a guarantee of transparency of the Law creation function.” He adds that, due to the foregoing, the following aspects are highlighted as a fundamental cause for declaring the unconstitutionality of Law No. 9,544, due to defects in the due legislative procedure, violation of the democratic principle, the right of amendment, and the principle of publicity in the formation of laws, in the following terms:

• a)the processing of bill No. 19,922 lacks transparency and publicity, which violates the principles established in Article 124 of the Political Constitution; b) as a primary consequence, the participation and representation of the legislators was unduly eliminated and restricted (Articles 1, 9, 105, 123, and 124 of the Political Constitution); c) the processing of the bill transgressed the democratic principle (Articles 1, 9, 105, 123, and 124 of the Political Constitution); d) the processing of the bill —through the application of the procedure established in Article 208 bis) of the Regulations— is not clear and violates the constitutional democratic principles and the right of amendment since it restricted the participation of third parties in the law-making process by establishing that only substantive motions from the Plenary would be received during the first two days of discussion of the bill; e) the Special Commission did not respect the scope of the agreement to process the bill in accordance with the procedure in Article 208 bis) of the cited Regulations.

He indicates that the principle of publicity is inherent to the concept of representation and tends to establish communication channels between representatives and the represented, allowing the governed to follow the parliamentary process, not only in the control of the legality of the procedure but also in the protection of the fundamental values and interests of the community; it thus allows the administered party to have control over the procedures to ensure respect for fundamental values and transparency. He argues that, in this sense, by establishing a special, different, exceptional, and more expeditious procedure, the Special Commission and the Legislative Plenary should at all times have adjusted, subjected, and limited themselves to complying with that previously designed special procedure and to avoid, as much as possible, any infringement of the principles of legal certainty and democracy. He states that, along this line of thought, and if the substitute text of bill No. 19,922 reported on by the Special Commission in session of September 13, 2016, was not published in the Official Gazette La Gaceta prior to its approval —as was demonstrated in the file of the optional legislative consultation by some Deputies (judicial file No. 17-017148-0007-CO)—, it is clear that we are in the presence of a procedural defect that clashes with the constitutional principle of publicity. He points out that, in this sense, ruling No. 2018-5758 at 3:40 p.m. on April 12, 2018, indicated:

“From the study of the legislative iter, it has been established that the substitute text of the bill under consultation, approved by the Special Commission in session on September 13, 2016, was not published, as stated by the consulting deputies and was duly accredited by the evidence provided by the Executive Director of the Legislative Assembly on March 12, 2018. Moreover, in accordance with the rules set by the special procedure approved by the Legislative Assembly for file number 19,922, in Ordinary Session No. 37 on June 30, 2016, based on the provisions of Article 208 bis of the Regulations of the Legislative Assembly, that publication was mandatory, which is clearly evident from subparagraph h of point 2, "Substantive Motions", of the procedure in question, which literally reads: “h.- If during the study of the file in its committee processing, a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to agree on its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the study of the bill shall be suspended...” (the emphasis is from the brief).

He adds that, in a similar vein, ruling No. 2002-003671 at 11:19 a.m. on April 19, 2002, stated:

“...The foregoing must also occur in a climate of publicity and transparency that allows people and interest groups to adequately learn about the initiatives under discussion and to go before their representatives to demand they fulfill their mandate effectively. This climate of dialogue and publicity should characterize parliamentary action in all its areas and becomes essential in cases of reforms or the production of complex, extensive regulations, or those of marked relevance for the life of the inhabitant...” (the emphasis is from the brief).

He indicates that this omission alone in the publication of the bill approved by the Special Commission breaches the constitutional principle of publicity and, therefore, entails the unconstitutionality of Law No. 9,544 due to defects in the abbreviated formation process; allowing these errors to go unnoticed, indicating that they are not relevant and therefore do not affect the constitutionality of the resulting law, is allowing legislation without transparency and in light of the principle of publicity. He adds that, regarding the publication of bills in the Official Gazette La Gaceta, the Constitutional Chamber in Ruling No. 2002-03458 at 3:54 p.m. on April 16, 2002, has indicated the following:

“The publication in the Gazette of the bills discussed in the Legislative Assembly is an instrument that can promote popular participation in the adoption of major national decisions, besides constituting a guarantee of transparency of the Law creation function.” He argues that, in line with the argument he is making, the Constitutional Chamber has indicated in similar situations:

“The foregoing has already been held by this Chamber when evaluating the Optional Legislative Consultations of Constitutionality filed regarding the approval of the bill called “Tax Solidarity Law” (Ley de Solidaridad Tributaria), processed in legislative file No. 18,261, an occasion on which, through Ruling No. 2012-004621 at 4:00 p.m. on April 10, 2012, it stated: / This Constitutional Court warns that when the Legislative Assembly, via an order motion under Article 208 bis of the Regulations, creates a special procedure, the application and observance of it must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it will always be an exception. The duty of the various legislative bodies to adhere, zealously and scrupulously, to the previously designed special procedure avoids any infringement of the principles of legal certainty (emphasized by this Court in Vote No. 398-2005 at 12:10 p.m. on January 21, 2005) and democratic principle. Consequently, before a special and rapid legislative procedure, the previously established deadlines, stages, and requirements must be subject to a restrictive and rigorous interpretation, the margin of admissible flexibility in the face of ordinary procedures, through extensive interpretations, decreasing notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by a supermajority” (see ruling 2012-004621 at 4:00 p.m. on April 10, 2012) He states that the violations of the abbreviated legislative procedure approved by the Legislative Assembly do not end there, but the legislative file reveals that the text of the bill, whose substitute text was approved in the First Debate by the Legislative Plenary – with substantial changes – on October 30, 2017, was belatedly published in Supplement 268 to Digital Gazette No. 212 of November 9, 2017, while since November 1, 2017, a legislative consultation had already been filed, which was received by the Constitutional Chamber on November 1, 2017, as was outlined in Ruling No. 2018-5758, indicating that:

“From legislative file No. 19,922, it is evident that the substitute text approved in the First Debate by the Legislative Plenary on October 30, 2017, was published in Supplement 268 to Digital Gazette No. 212 of November 9, 2017, while this consultation was filed on November 1, 2017. That is to say, not only was said text published untimely, after being approved in the First Debate, but at the time this consultation was filed before this Chamber, it had not been published, thereby also producing another violation of the principle of publicity; and, therefore, of an essential step in the legislative procedure...” (the emphasis is from the brief).

He argues that, in this state of affairs, he fully shares the precedent of the Constitutional Chamber in ruling No. 2018-5758 at 3:40 p.m. on April 12, 2018, in the sense that the constitutional principle of publicity requires that a substitute text of a bill must be published before its approval in the First Debate since, doing so afterwards also violates the democratic principle by preventing the citizenry from knowing, prior to its approval, the substitute text of the bill, especially when an abbreviated, special, and expeditious procedure was established to process the bill. He states that, therefore, he welcomes the indication in the cited ruling No. 2018-5758 that:

“As indicated in the majority vote, the substitute text in the Commission, approved on September 13, 2016, was not published. Although later, the text was approved by the Commission on July 27, 2017, and published on August 4, 2017; and although later the text approved in the first debate was not published until November 9, 2017. In this context, it cannot be ignored that the motion governing the approval procedure for the consulted bill states that it must be published in the event there is a substitute text. Therefore, this was, in this hypothesis, a transgression of what is indicated in the motion governing the procedure (moreover, because it involves the application of Article 208 bis, this motion acts as regulatory rules in that specific bill), and any type of regulated publication is an essential requirement. Because it is an abbreviated legislative procedure, the principle of publicity of the discussed or approved norms must be respected with greater rigor. The weakness of an abbreviated procedure requires a more rigorous application of the publicity requirement, without admitting validation regarding a requirement as important as publicity. On the other hand, the publicity of bills is the only way in which the activity of the popular representatives transcends to the entire population. It is the projection of parliamentary activity outward, operating as a constitutional guarantee that prevents the parliament from acting with its back to the citizenry. Unlike other matters where I have considered that the lack of publication has not been an essential defect, in this case, I consider that it is, for three reasons: because the regulation governing the procedure so indicates, because it is a substitute text, and also because the lack of publication did not allow the population to know the text that was being discussed at that moment, further preventing the citizenry from making statements about what the parliament intended with the bill. In this case, it is not debated whether the publication of some rules that did not vary the essence of the bill was omitted; it is that, in this matter, publicity was completely omitted during the development of an abbreviated legislative procedure, which, as I have expressed, totally weakens the constitutional principles governing parliamentary procedure” (the emphasis is from the brief).

He states that it is of greater concern that there was not a single violation but several omissions in the publications ordered by the Legislative Plenary itself when approving the motion to process file No. 19,922 based on the “express” procedure of numeral 208 bis) of the Regulations, which indicated, Point 2) literal h):

“h- If during the study of the file in its committee processing, a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to agree on its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the study of the bill shall be suspended, proceeding also to make the corresponding consultations. If after eight business days no response has been received to the mandatory consultations referred to in this subparagraph h), it shall be understood that the consulted body has no objection to make to the bill” (the emphasis is from the brief).

He considers that the fact that the Legislative Plenary defines a special procedure to process a reform to the Organic Law of the Judicial Branch in Ordinary Session No. 37 on June 30, 2016, and that the rules for publishing the texts are breached, constitutes a clear injury to the principle of legal certainty and the democratic principle, since that would be the only way for deputies to know —previously and sufficiently in advance— the procedure to which they would be subject and thus exercise the corresponding mechanisms of participation and control. In addition to the foregoing, he argues that the lack of publication of the substitute text in the processing of bill No. 19,922 directly affected the active and retired or pensioned personnel of the Judicial Branch, especially considering that the initial bill with which the discussion of the Title IX reform of the Organic Law of the Judicial Branch begins is a text presented by various organizations of the Judicial Branch, as was expressly recognized by the President of the Legislative Assembly, Álvarez Desanti, in paragraph 7 on page 18 of the cited Ordinary Minutes No. 37 of June 30, 2016, thereby curtailing, with that omission, any participation by deputies and citizens in defense of their interests.

It states that, specifically, in that session, the president of the Legislative Assembly indicated:

“...Excuse me, I clarify that the base text will be that of expediente 19.651, which is incorporated with a motion for a substitute text, signed by all the fractions, so that at the moment the procedure of article 208 bis of expediente 19.922 begins, the motion for a substitute text that uses as a base the bill that had been presented by various organizations of the Judicial Branch will be known.” It considers that this demonstrates that the Legislative Assembly's appetite for modifying the Judicial Branch's Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) was greater than compliance with due legislative process and respect for the constitutional norms on which the principle of publicity and democratic principle are based, thereby generating, through this attitude, the unconstitutionality of Law No. 9.544.

• f)Violation of the principle of technical reasonableness due to the insufficiency of technical and actuarial studies supporting the imposition of a tax called special, solidarity, and redistributive contribution (contribución especial, solidaria y redistributiva) (articles 28 second paragraph, 39, 41, and 74 of the Political Constitution): it indicates that the existing technical studies are insufficient, lack precision in defining the parameters to establish the special, solidarity, and redistributive contribution, as well as everything else related to the other rules approved by the Legislative Assembly through Law No. 9.544 of May 22, 2018; these insufficient technical studies do not allow concluding that the measures adopted—in the law being challenged—are to preserve the fund, to correct situations of imbalance, and to avoid generating capital losses for pensioners that would nullify the enjoyment of the retirement right. It indicates that, in that sense, Law No. 9.544 of May 22, 2018, has no economic or actuarial study demonstrating that the savings to be obtained from the application of the special solidarity contribution and the increase in the ordinary contribution from 11% to 13% will allow the fund to be actuarially balanced; nor is there an actuarial or economic study demonstrating that the impacts on pensioners and retirees are proportional or rational to the right to retirement that was granted to the beneficiaries and, rather, they become measures that are confiscatory. It argues that, in the study conducted by the company Melínsky, Pellegrinelli y Asoc. S.A. called “Final Report of the Actuarial Valuation of the Judicial Branch Retirement and Pension Fund as of 12/31/2011” (Informe Final de la Valuación Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial al 31.12.2011), there is absolutely no mention of a special, solidarity, and redistributive contribution, so it could not be validly indicated that said actuarial study served as the basis for establishing a special solidarity contribution. For its part, it argues that in the study conducted by the University of Costa Rica, called Project: “Actuarial Study of the Judicial Branch Retirement and Pension Fund, Product 6 Final Report, Compilation and final report: Conclusions and Recommendations, dated July 4, 2017, Rodrigo Facio University City” (Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, Producto 6 Informe Final, Recopilación e informe final: Conclusiones y Recomendaciones, con fecha Julio 4, 2017, Cuidad Universitaria Rodrigo Facio), the following is stated regarding the special, solidarity, and redistributive contribution:

“...Concerns regarding the confiscatory nature of the solidarity contribution of 50% on the amount by which the retirement exceeds the cap of 4 million colones.

Before making decisions regarding this issue, it is necessary to first study whether the solidarity contribution really generates confiscation problems. This study must be conducted based on effective retirement or pension amounts at the current time according to the data available to the Judicial Branch.

Second, it is necessary to conduct a study on the existing jurisprudence regarding the confiscatory nature that may arise from the proposed solidarity contribution. In this sense, it would be advisable to investigate the experience and judicial rulings on similar topics in other retirement and pension regimes. ...

In any case, to prevent the issue of confiscation from becoming an obstacle to the necessary reform of this regime, it can be established that the solidarity contribution be applied, together with the other normative deductions (regular contribution on benefits, income tax, CCSS health insurance fee), without the total deductions exceeding the equivalent of 50% of the gross benefit of the retiree or pensioner.” It reiterates that there is no technical study that recommends establishing the special, solidarity, and redistributive contribution, as a way to improve the long-term actuarial situation of the regime, nor is there a technical basis that determines the percentages or, whether these established percentages or parameters turn out to be reasonable and proportional, as parameters of constitutionality or, if on the contrary, the application of said contribution becomes confiscatory. It states that, the only thing that exists is a kind of “parliamentary trick” (treta parlamentaria), recommended by the University of Costa Rica to camouflage the special solidarity contribution, within the forest of total deductions, so that the confiscatory effect is not noticeable. It indicates that, in this regard, the Chamber itself has emphatically stated that the absence of studies that do not adequately describe the factual situation or the technical viability of a measure adopted by the Legislative Assembly, is not a problem of substance but of form, which stands as an essential, non-curable defect of the legislative procedure, as effectively occurs—in its opinion—in the case of the special, solidarity, and redistributive contribution, as detailed in ruling No. 2014-18836 of 4:20 p.m. on November 18, 2014:

“In this regard, it should be noted that, contrary to what the consultants propose, the lack of prior technical studies from which the bill in question suffers is not a problem of substance, but rather constitutes an essential defect of the legislative procedure, as this Chamber has repeatedly established in its jurisprudence. Thus, in one of the most recent rulings on the subject, this Chamber affirmed:

‘The bill under discussion lacks technical studies that certify not only the tactical situation, but also the technical viability, as well as the reasonableness and proportionality as parameters of constitutionality, principles that any legal norm must observe, mainly when it comes to affecting public resources as is the case in this specific instance.

The foregoing allows this Court to agree with the position of the consulting deputies in the sense that there is no technical study in the legislative record that analyzes and determines the possibility of reducing environmental protection in application of the principle of objectification of environmental protection, even though there are both institutions and experts in environmental issues that could have prepared the technical study that is notably absent from the bill.

By virtue of the foregoing, it is appropriate to respond to the consultation by noting the existence of essential defects of unconstitutionality in the bill's procedure, under the terms of article 101 of the Law of Constitutional Jurisdiction.’” It states that what is extracted from the UCR study cited by the majority affirmative opinion dated July 27, 2017, is a concern for considering that item (special, solidarity, and redistributive contribution), as confiscatory and irrational, indicating that it could be applied “...provided that it does not exceed a reduction of 50% of the pension amount together with the other deductions that are already applied to retirements and pensions...”. It adds that, according to the foregoing, Law 9.544 via taxes, authorizes confiscating up to 55% of the pension amount in payment, without its enactment having relied on technical studies that supported the reasonableness and proportionality of the measure, which implies that, from a constitutional point of view, the questioned law is unconstitutional for failing to meet the necessary parameters in the law-making process that the Chamber has considered indispensable. It states that, in this way, the aim is not only to ensure that the law is not irrational, arbitrary, or capricious, but also that the selected means have a real and substantial relationship with its object; a distinction is then made between technical reasonableness, which is, as stated, the proportionality between means and ends; legal reasonableness, or conformity with the Constitution, in general, and in particular, with the rights and freedoms recognized or assumed by it; and finally, reasonableness of the effects on personal rights, in the sense of not imposing on those rights other limitations or burdens than those reasonably derived from the nature and regime of the rights as such, nor greater than those indispensable for them to function reasonably in society's life. It argues that, to determine whether the norm effectively transgressed substantive due process (reasonableness) and if therefore it is unconstitutional, what is appropriate is to analyze whether the provision is subordinated to the Political Constitution, whether its precepts are adapted to the objectives it seeks to achieve, and whether it provides equitable solutions with a minimum of Justice (see in this sense ruling No. 2001-11543 of 3:00 p.m. on November 7, 2001).

• g)Lack of competence of the Legislative Assembly to create special contributions article 121.13) of the Political Constitution: it indicates that article 236 bis) of Law No. 9.544 establishes a “special and solidarity contribution” on the pensions of the Fund whose benefits exceed the amount resulting from 10 times the salary of the lowest position paid in the Judicial Branch; a provision that creates and imposes a “contribution” that it qualifies as “special” (especial), “solidarity” (solidaria), and “redistributive” (redistributiva); the Royal Academy defines the word “special” as: “Singular or particular, that differs from what is common or general”. It argues that, in accordance with the provisions of article 121, subsection 13) of the Political Constitution, it corresponds to the Legislative Assembly, exclusively but limitedly, to establish national taxes (impuestos) and contributions (contribuciones) and to authorize municipal ones. It adds that, according to the Royal Academy, the verb “establish” (establecer) has, among others, the following meanings: “to found, institute, order, command, decree”; for its part, the word “contribution” (contribución) is defined in the RAE as: “fee or amount paid for some purpose, and mainly that which is imposed for State burdens”, and finally the word “national” (nacionales) although not defined as such, recourse is made to the term “national” (nacional) which, for the RAE means: “Belonging or relating to a nation”. It indicates that, from the reading of the indicated article 121 subsection 13), it is deduced with absolute clarity that the original legislator granted powers to the Legislative Assembly to “establish” the “taxes” and the “contributions” "national", but then, it considers that it is worth asking whether imposing a “special contribution” is within the attributions of the Legislative Assembly? It argues that, rushing an answer, it seems not because, the special contribution to which the pensioners of the Judicial Branch Retirement and Pension Fund are obligated is not national as it does not affect all citizens of a State, but rather, in a singular manner, affects a special, determined, and particular group of people who are in the status of pensioners or retirees under the Judicial Branch regime. It points out that, justifying the foregoing, recourse is made to the Constitutional Chamber's own rulings that, repeatedly, have affirmed that the “Taxing Power” (Poder Tributario) is a sovereign power of the State through which it can demand contributions from individuals or property and grant exemptions, as well as that said power recognizes no more limitations than those originating from the Political Constitution itself (see Constitutional Chamber rulings 6455-1994 of 6:18 p.m. on November 2, 1994; 5398-1994 of 3:27 p.m. on September 20, 1994). It states that, concretely, in ruling No. 2004-5015 of 2:53 p.m. on May 12, 2004, the Constitutional Chamber indicated:

“Based on that norm, which develops the Legal Reserve (Reserva de Ley) provided for in article 121 subsection 13 of the Political Constitution, for the establishment of ‘national taxes and contributions’, it is understood that it is solely the Legislative Assembly that, through the procedure for creating formal Law, can establish the essential elements of national tributes: the taxpayer (sujeto pasivo), the tax base (base imponible), the taxable event (hecho generador), and the percentage of the levy. The taxpayer who is obligated to fulfill the tax obligations (article 15 of the Code of Tax Norms and Procedures); the taxable event which is the presupposition established by Law to categorize the tribute and whose realization gives rise to the obligation (article 31 ibidem); the tax base as that from which the amount of the tax obligation will be calculated; and the tax rate, that is, the percentage of the tax base that must be paid by the taxpayer. On the principle of legal reserve in tax matters, this Chamber defined it in ruling number 4785-93, of eight thirty-nine in the morning on September thirty, nineteen ninety-three...” It argues that, both the taxing power and the principle of legal reserve, have as a limit the very text of the Political Constitution regarding the possibility of establishing national taxes and contributions, but under the protection of tax principles that must also have constitutional protection, such as:

• a)that tributes are payments in money and can be taxes, fees (tasas), and special contributions, which the State demands; b) that the tax is a tribute whose obligation has as its taxable event a situation independent of all state activity relating to the taxpayer; c) that the fee is the tribute whose obligation has as its taxable event the effective or potential provision of a public service individualized to the taxpayer; d) that the special contribution is the tribute whose obligation has as its taxable event benefits derived from the execution of public works or state activities.

It adds that, recognizing that the Legislative Assembly's power is limited to national contributions and that these refer to the execution of public works, it evidently exceeds the competence of the Legislative Assembly to establish special, solidarity, and redistributive contributions on the pensioners or retirees of the Judicial Branch, as it is contrary to article 121:13) of the Political Constitution. It indicates that, in addition to the foregoing, it should be highlighted that the sovereign tax power, that is, the possibility of demanding contributions from individuals -recognizes no more limitations than those originating from the Political Constitution itself- (Constitutional Chamber ruling 6455-1994 of 6:18 p.m. on November 2, 1994), implies that the Legislative Assembly does not have taxing power to impose contributions that are not national, that is, under the protection of article 121 subsection 13 of the Political Constitution, “special, solidarity, and redistributive contributions” could not be established for a particular special regime because this, in its opinion, is contrary to the competence granted by the original legislator since the special contribution regulated in article 236 bis of Law No. 9.544 only affects a group of pensioners from a particular regime, which also violates the principle of tax isonomy, in the terms defined by the Constitutional Chamber in ruling No. 6.455-1994 of 6:18 p.m. on November 2, 1994, by stating that:

“The sovereign power of the State to demand contributions from individuals or property within its jurisdiction or to grant exceptions—recognizes no more limitations than those originating from the Political Constitution itself. This power to levy is the power to sanction legal norms from which derives or may derive the obligation to pay a tribute or to respect a tax limit and among the constitutional principles of Taxation are embedded the Principle of Legality or Legal Reserve, that of Equality or Isonomy, of Generality, and of Non-Confiscation. Tributes must emanate from a Law of the Republic, not create discriminations to the detriment of taxpayers, must comprehensively encompass all persons or property provided for in the law and not only a part of them, and must ensure it is not of such an amount that it violates private property (articles 33, 40, 45, 121 subsection 13.) of the Political Constitution).-‘...’ In this sense, it should be recalled that our legal system recognizes the tax power of the State at the constitutional level, so that it corresponds to the Legislative Assembly the faculty to ‘Establish the national taxes and contributions, ...’ (article 121 subsection 13) of the Political Constitution)...”.

It indicates that, according to the very limits contained in the Political Constitution, insofar as it authorizes the Legislative Assembly to establish only national contributions of general scope and based on the principle of equality, it can be concluded that, because the contribution ordered in article 236 bis of Law No. 9.544 is “special”, “solidarity”, and “redistributive” in nature, in its opinion it is unconstitutional for violation of article 121 subsection 13) of the Political Constitution. It adds that, for the above, it challenges the unconstitutionality on procedural grounds of Law No. 9.544 of May 22, 2018, “Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms” (Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas) and requests that the ruling declare the unconstitutionality action granted and, consequently, annul the questioned law and eliminate it from the legal system.

• B)Regarding the Unconstitutionality on the merits, it argues that in this section the violation of the following constitutional and conventional principles and norms is challenged: constitutional and conventional rights of older persons; articles 50, 51, and 53 of the Political Constitution; violation of the protection of a dignified remuneration contained in the Universal Declaration of Human Rights, article 3, Inter-American Convention on the Human Rights of Older Persons articles 3 subsections c), f), and g), 6, 7, and 17; American Convention on Human Rights “Pact of San José, Costa Rica”, article 24; improper application of International Agreements on Social Security, and the constitutional rights contained in articles 21, 51, 56, and 57 of the Political Constitution; violation of the content of articles 25 to 30, 66, and 67 of Convention No. 102 of the International Labor Organization (ILO) called Convention concerning Minimum Standards of Social Security; violation of the principle of consolidated legal situations (situaciones jurídicas consolidadas); article 34 of the Political Constitution; violation of the principles of proportionality and reasonableness, articles 28 second paragraph, 41, and 74 of the Political Constitution; violation of the principle of non-confiscation; article 40 of the Political Constitution; violation of the principle of administrative responsibility and the inviolability of assets; articles 34, 41, and 45 Political Constitution; violation of the principle of non-retroactivity and the doctrine of the survival of the abolished right; article 34 of the Political Constitution. It states that, below, it details the violations that, in its opinion, have resulted from the enactment of the norms of Law 9.544 and that are challenged through this action. It indicates that the questioned norms are causing serious economic, as well as individual, harm to each of its represented parties.
• a)violation of the constitutional and conventional rights of older persons; articles 50 and 51 of the Political Constitution; violation of the protection of a dignified remuneration contained in the Universal Declaration of Human Rights, article 3, Inter-American Convention on the Human Rights of Older Persons articles 3 subsections c), f), and g), 6, 7, and 17; American Convention on Human Rights “Pact of San José, Costa Rica”, article 24: it states that the challenged norms threaten the protective purposes that social security legal instruments in Costa Rica grant to “older adults”, among other resources, through pensions. It points out that the questioned norms create a system that subjects those who acquired that right many years ago to immediate economic lack of protection, as the amounts received are abruptly and arbitrarily reduced from one month to the next and, thus, the norms accused as unconstitutional, in its opinion, present a clear violation of the Inter-American Convention on the Human Rights of Older Persons, approved by Law 9394 of September 8, 2016, which reinforces the legal rights of older adults so that they continue to enjoy full, independent, and autonomous support, with health, security, integration, and participation in the economic, social, cultural, and political spheres. It adds that the Universal Declaration of Human Rights provides that everyone who works has the right to a remuneration which, in the case of pensioners and retirees who contribute their entire working life to a pension regime, gives them the right to receive an economic benefit for services rendered, as provided in its article 3:

“3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” It indicates that, with the reform law approved and now questioned, the purpose of the protection promoted by the Universal Declaration of Human Rights is being violated and, far from ensuring that the funds and pension regimes maintain purchasing power, it is instead promoting the disproportionate reduction of pensions and retirements by establishing a solidarity contribution ranging from 35% to 55%, without any technical support indicating that these are the percentages that should be applied and, without considering that we are in the presence of a population that has mostly surpassed 65 years of age, in addition to some cases being people with health problems who use most of their income to pay for doctors and medications, goods, and services not provided by the universal health insurance. It adds that the protection and social security of retirees and pensioners would also not be guaranteed because, if the application of the solidarity contribution and the increase in the ordinary contribution materialize, the reduction in the amounts of pensions and retirements would endanger the economic support of households that depend on that income. It argues that, in this sense, the Constitutional Chamber has held in ruling No. 633-94 of 3:18 p.m. on January 31, 1994, that to be constitutional, tributes must not distort other fundamental rights and that the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation:

“The State may take part of the income generated by the individual, to defray expenses, but provided that it does not go so far as to nullify property as such, as would be the case if the tribute totally absorbed the income. If the Constitution protects the right to property to the integral assets, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, tributes must not distort other fundamental rights, the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation” (see in the same sense votes 554-95 of 4:45 p.m. on January 31, 1995 and 5749-93 of 2:33 p.m. on November 9, 1993).

It considers that the challenged norms are unconstitutional as they leave retirees and pensioners unprotected, eliminating their income—previously granted and declared—which threatens the quality of life and the fundamental right to a dignified old age. It adds that, in practical terms, it can indicate that the change introduced by Law No. 9.544 has social, economic, and family implications for retirees and pensioners, with some situations that have been identified being the following:

• 1)the special, solidarity contribution, applied together with the other pre-existing and new deductions means that a family's real income can be reduced by 55%, compared to the immediately preceding month; 2) the civil obligations of the retirees and pensioners represented in this action are placed at risk due to the insufficiency of resources generated suddenly by the reform, that is, family budgets for the care of illnesses and medical expenses, which are common among retired and pensioned persons, are also grossly affected with the consequent risk for former Judicial Branch officials; 3) from a social point of view, the reform's contributory scheme puts the affected families on edge as monthly incomes are reduced and they will be forced to adjust their economic and social activities to the new budget.

It states that, as a consequence of the application of articles 236 paragraph 1) and 236 bis) of Law No. 9.544 —challenged here— the constitutional rights enshrined in articles 50, 51, and 73 of the Political Constitution are grossly harmed. It indicates that, regarding the protection of retirees, pensioners, and older adults, numeral 51 of the Constitution has established special protection for them; a numeral that has been endowed with extraordinary content by the Constitutional Chamber, which, as the supreme interpreter of the Constitution, has determined special protection for retirees, pensioners, and older adults, linked to the free development of their personality and the role of the Constitutional State. It argues that this special protection has been reinforced with the enactment, by the Legislative Assembly, of the Comprehensive Law for the Older Adult (Ley Integral para la Persona Adulta Mayor) of October 25, 1999, Law No. 7935, whose article 1 establishes as its objective guaranteeing older adults equality of opportunities and a dignified life in all areas, as well as promoting the comprehensive and inter-institutional care of older adults by public and private entities, and also ensuring the proper functioning of programs and services aimed at this population, guaranteeing the protection and social security of older adults. In addition, it points out that in constitutional jurisprudence the use of “soft law” instruments is evidenced to reaffirm that special protection, such as the Protocol of San Salvador, the Charter of San José on the Rights of Older Persons in Latin America and the Caribbean, and, recently, the Inter-American Convention on the Protection of Older Persons, even prior to its approval by the Legislative Assembly. It argues that it is important to highlight that the Constitutional Chamber in ruling No. 9676-2001, indicated the following relevant part:

“(...) ON THE SPECIAL PROTECTION GENERATED IN FAVOR OF THIRD AGE PERSONS (ARTICLE 51 OF THE POLITICAL CONSTITUTION).

(…) it is clear that the special protection by the State for these groups of persons constitutes a true fundamental right, enforceable in the corresponding administrative offices and courts of justice.

Thus, based on the concept of the social State under the rule of law, it is possible to derive obligations for the authorities, precisely for the sake of seeking the greatest well-being of all the country's inhabitants, among whom the Constitution's Law specially points out children, mothers, the elderly, and helpless persons. It is from the establishment of a Social State, derivable from the provisions contained in articles 50 and following of the Fundamental Charter, that mandatory state intervention in social matters is immediately generated, in which it must act in a certain direction and orientation: in favor of those special sectors of the population that, by their condition, so require it; and such is the case—without any doubt—of the elderly, called third age persons, or older adults.

Until recently, there was no regulation aimed at guaranteeing, in a more adequate manner, the special protection and state guardianship required by the older adult (adulto mayor) in our country; however, recently, the Legislative Assembly enacted the Comprehensive Law for the Older Adult (Ley Integral para la persona adulta mayor), number 7935, of October nineteenth, nineteen ninety-nine, which aims to a) Guarantee older adults equality of opportunity and a dignified life in all spheres (…)” (highlighting from the brief).

It adds that, in the same vein, judgment No. 2007-13584 of 3:15 p.m. on September 19, 2007, provided:

“(...) I.- ON THE QUALITY OF LIFE OF OLDER ADULTS. Our Political Constitution enshrines special protection for older adults, which follows expressly from the provisions of Article 51 of the Political Constitution, which states the following:

[...]

For its part, this Constitutional Court has indicated that, in accordance with said provision, the Costa Rican State has a dual duty to, first, create an adequate regulatory framework in order to provide special protection for those groups of persons, which constitutes a true fundamental right. Second, it is responsible for respecting and ensuring respect, through the corresponding administrative agencies and courts of justice, for such rights. Likewise, it has been concluded that, from the enshrinement of the Social State of Law derivable from the provisions contained in Articles 50 and following of the Fundamental Charter, it is possible to extract obligations for public authorities, precisely in the interest of seeking the greatest well-being of “all the inhabitants of the country,” among whom the Law of the Constitution specially points to children, mothers, the elderly, and helpless persons. Thus, the Social State, enshrined in our Political Constitution, develops in its normative content a relevant and obligatory state protection and intervention in social matters in favor of those especially vulnerable sectors of the population that, due to their condition, so require; such is the case—without any doubt—of the elderly, persons of the third age, or older adults” (highlighting from the brief).

It indicates that, for the Chamber, the Costa Rican State has a dual duty to, first, create an adequate regulatory framework in order to provide special protection for those groups of persons, namely, retirees (jubilados), pensioners (pensionados), older adults, or persons of the third age, which constitutes a true fundamental right; second, it is responsible for respecting and ensuring respect, through the corresponding administrative agencies and courts of justice, for such rights.

It considers that, in light of the foregoing, the application of the challenged rules is abusive and arbitrary (another of the purposes of the principle of legal certainty) insofar as it aggravates the socioeconomic conditions of the retirees and pensioners of the Judicial Branch, at its whim and without regard for their rights and expectations, this because it concerns a pension regime whose affiliation is mandatory which, freed from any legal certainty control, would allow the variation of conditions in the most indiscriminate ways, regardless of the will of the workers. That being the case, it recalls that the idea of legal certainty binds all branches of the State but obligates especially the Judicial Branch, and the constitutional magistracy, which is basically a control body; it is the last security provided by the legal-political system, given that for the constitutional jurisdiction to reliably fulfill its roles in matters of legal certainty, certain factors must be combined, such as being an impartial and suitable judiciary, technically and ethically speaking. It points out that the constitutional protection for retired and pensioned persons and older adults is broadened in Costa Rica by the existence of conventional norms that, in a clearer and more precise manner, establish more effective protection for persons who have that profile within the community. It indicates that the issues of older adults are a matter of fundamental rights that have been protected by different normative instruments at the constitutional, conventional, and supranational level, which demonstrates a multilevel protection and, in that regard, it argues that the work of judges in the constitutional jurisdiction, in the application and interpretation of the rights of older adults, plays a fundamental role since it states that the States are the primary guarantors of the protection of rights based on the principles of subsidiarity and complementarity. It points out that it must be emphasized that Article 236 bis) of Law 9.544 establishes a tax that has been classified as a special and solidarity contribution (contribución especial y solidaria), which is contrary to the provisions contained in Articles 3, subsections c), f) and g), 6, 7, and 17 of the Inter-American Convention on Protecting the Human Rights of Older Persons (Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores), signed by the Costa Rican State on June 15, 2015, and duly approved by Costa Rica on October 12 of that same year, so that, by itself and in accordance with Article 10 of the Political Constitution and Articles 3, 48, 88, 89, 91, and 92 of the Law of Constitutional Jurisdiction, said convention recognizes a list of rights for this population group with respect to which the Chamber is obligated to provide protection, respect, and guarantee. On this point, it argues that judgment No. 14-18301 stated, in relevant part:

“(…). The Chamber has protected in its jurisprudence the interests and rights of older adults, because they are in a situation of special vulnerability. In the case at bar, this Court is of the opinion that the failure to repair the street in front of the protected party’s dwelling directly affects his fundamental rights, since, due to his advanced age, he requires an accessible and easily traveled route to be able to move about, whether on foot or by vehicle. Having proven the denounced situation, the proper course is to grant the amparo regarding this extent.” It argues that Article 17, in full consonance with the principles informing Articles 50 and 73 of the Political Constitution, refers to the right to social security as one of the fundamental rights of retirees, pensioners, and older adults, from which derives the guarantee of receiving income for a dignified life and economic independence through social security systems. It states that having economic security is essential to enjoy aging in conditions of dignity and independence; the ability to have a quantity of regular and sufficient economic resources in old age is fundamental to guarantee a good quality of life, which is a right protected by the cited norms, both of the Convention and by the Political Constitution, so that Law No. 9.544—in its opinion—becomes unconstitutional when it undermines the dignity of the pensioner and retiree. It recalls that the main objective of retirement and pension programs or systems is to protect the population from the risk of loss of income in old age, given that protection may be provided within the framework of a contributory scheme (financed mainly by the contributions of workers and employers), or a non-contributory scheme (financed with taxes or general state revenues). It argues that, in contributory systems, the basis or rationale for the protection is based on the right to rest, merited by the contribution to productive activity carried out over a long period of time, and is established as a consideration for the years of productivity and service, unlike other employees. It points out that in old age, the probabilities of experiencing an economic deterioration such as that suffered by its represented parties with the application of Law No. 9.544 increase, the impact of which puts at risk the survival of retired, pensioned, and older adult persons, as well as their rights widely recognized by international instruments. It states that the Inter-American Convention on Protecting the Human Rights of Older Persons is an instrument that contemplates a series of definitions and scope of the rights of older persons, as well as conventional principles, among them: the promotion and defense of the human rights and fundamental freedoms of the older adult, the valuation of the older adult, their role in society and contribution to development, the dignity, independence, protagonism, and autonomy of the older adult, equality and non-discrimination, among others, which was approved on June 5, 2015, at the 45th Session of the General Assembly of the Organization of American States. It mentions that, in the sphere of supranational law and, particularly, at the European community level, this subject has found recognition in the Charter of Fundamental Rights of the European Union (2000)—commonly called the Charter of Nice—whose Article 25 determines:

“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Furthermore, Article 21.1 recognizes the principle of non-discrimination, determining: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”” It argues that, likewise, the Inter-American Convention on Protecting the Human Rights of Older Persons stands out, which, in its Article 31, establishes that access to justice contemplates three aspects: the first comprises access itself, through which the person can file their actions to obtain judicial protection without obstacles or discrimination; a second aspect is the right to obtain a ruling from the judicial apparatus that protects those rights or resolves the conflict through a judgment or any other duly motivated decision, and as a third dimension, to ensure that such resolution is fulfilled and executed. It indicates that, in Costa Rica, this principle of equality and non-discrimination is protected in Article 33 of the Political Constitution, which provides that "Every man is equal before the law and no discrimination contrary to human dignity may be made." It recalls that, furthermore, the country has signed a series of International Human Rights Law instruments that regulate this subject, such as the American Convention on Human Rights, Article 24; the Inter-American Convention on Protecting the Human Rights of Older Adults in its Article 3, subsection d); the Inter-American Convention on Protecting the Human Rights of Older Persons, which defines in its Article 2 discrimination by reason of age in old age. It argues that, for its part, the Constitutional Chamber has determined that the principle of equality and non-discrimination is violated in those cases in which different treatment is given to persons who are in the same situation or category.

• b)violation in the improper application of international agreements on social security, and the constitutional rights contained in Articles 21, 51, 56, and 57 of the Political Constitution; violation of the content in Articles 25 through 30, 66, and 67 of Convention No. 102 of the International Labour Organization (ILO) called the Convention concerning Minimum Standards of Social Security: it argues that the challenged legal norms tax the pensions of the Judicial Branch with a tax that the legislator has called a “Special and Solidarity Contribution” which, by its nature, turns out to be contrary to the Political Constitution and to ILO Convention 102, which, having been incorporated into the Costa Rican legal system, is a minimum standard of Social Security and can never be interpreted as a maximum of aspirations for the country, in pension matters, as it considers the Legislative Assembly seems to understand it. It states that another core aspect is that no International Convention on Social Security, Labor, or Old-Age Protection could go against the principle of expansion and progressivity of social rights, as was apparently applied in Bill No. 19922. It emphasizes that all amounts that refer to Convention 102 are based on the earnings (income that the active worker receives) of an active worker, who is in active employment and never on pension or retirement amounts, which are already reduced at the moment the right is declared; thus, it deems it absolutely arbitrary to assume that ILO Convention 102 allows, promotes, or authorizes the reduction of pension benefits in the course of payment.

It states that it is unthinkable that, sheltered by a minimum Social Security standard such as ILO Convention 102, one would seek to justify that pensions may be reduced by 55% of the gross amount (second paragraph of 236 of Law No. 9.544); that is to say, that the person is only guaranteed the enjoyment of 45% of the gross pension. It points out that in the analysis of old-age pensions, Articles 25 through 30, 66, and 67 of ILO Convention No. 102 refer to percentages of the worker’s salary for the granting of a pension; they do not refer to benefits in course of payment (pensions), or to the fact that these were reduced at the time of granting and may be reduced again. It adds that said Convention also does not authorize that pensions in course of payment be taxed again with special taxes to contribute to the fund—called special and solidarity contributions—among others, that imply as a final result that the gross amount of the pension in course is reduced by 55%, for which reason it deems that the challenged norms are contrary to Convention 102. It argues that any legal norm issued reducing pensions in course, like the challenged norms of Law No. 9.544, becomes unconstitutional since these are retirement and pension rights, which have been established as consolidated legal situations (situaciones jurídicas consolidadas) and have been classified as constitutional and fundamental rights by the Constitutional Chamber itself and, consequently, have a special protective jurisdiction; that is, in its opinion, attempting to adjust the norms governing the pensions and retirements of the Judicial Branch to the content of ILO Convention 102, as Law No. 9.544 professes, is to promote the economic, social, and health vulnerability of pensioners, retirees, and older adults, which is contrary to the provisions of Article 51 of the Constitution. It recalls that issues related to older adults have protection of fundamental constitutional rights that concern that population and, therefore, such rights find protection at different levels—constitutional, conventional, and supranational—through multilevel protection mechanisms for older adults, characterized by catalogs of fundamental rights “bill of rights,” with the jurisdictional bodies being responsible for their protection.

In addition to the above, it states that older adults have a series of inalienable rights by the mere condition of being human; however, the doctrine differentiates between adult persons who are self-sufficient and those who are not, since in this latter case the degree of vulnerability increases and may be multiple, so that the level of protection that state and jurisdictional authorities must provide is greater.

• c)Violation of the principle of consolidated legal situations, Article 34 of the Political Constitution: it argues that the principle of the effectiveness of norms over time has been called “non-retroactivity” (irretroactividad), which, in Costa Rica, is protected in Article 34 of the Political Constitution, given that the classical doctrine considers—generically—that a norm or rule of law is retroactive, or is applied retroactively, when it affects an individual right; however, it argues that these classical definitions omit the reference to the origin of the right, as well as that every legal situation must have support in a norm. It states that, from its perspective, a norm will be retroactive or would be applied retroactively when it disregards concrete legal situations, perfected under the prior law, and will not be retroactive when the law maintains legal situations, despite having been reformed. It indicates that in Costa Rica, the Office of the Attorney General of the Republic has maintained a changing position that is worth highlighting, just as it also deems it necessary to mention the doctrine of the Spanish Constitutional Court on this matter. Regarding the opinion of the Office of the Attorney General of the Republic on acquired rights (Spanish doctrine), it argues that, in order to define the meaning of the principle of non-retroactivity of the law as provided in Article 34 of the Political Constitution, it is known that this entity, on other occasions, has indicated that in matters of the monetary amount of pensions, non-retroactivity does not apply, and it does so based on a judgment from Spanish jurisprudence. It argues that it is the opinion of its represented parties that such conclusions of the Office of the Attorney General were made against its own precedents and without regard for what is established in the original Article 9.3 of the Spanish Constitution; a norm in which only the non-retroactivity of provisions that are sanctioning, not favorable, or restrictive of individual rights is included. That is to say, it points out that the Spanish Constitution does not include the precept as it is known in the Costa Rican Legal System. It indicates that Professor Garrido Falla teaches that the provision equivalent to Article 34 of the Political Constitution is found in Article 2.3 of the Spanish Civil Code, which provides that "laws shall have no retroactive effect" and alludes to the complication of interpreting the meaning of the final part of Article 9 of the Constitution, pointing out that the Constitution guarantees the non-retroactivity of norms restrictive of individual rights, and cites jurisprudence of the Spanish Constitutional Court to conclude with the following affirmation:

“But retroactivity will be unconstitutional only when dealing with sanctioning provisions, not favorable, or insofar as it restricts individual rights” (highlighting from the brief).

In summary, it states that the Spanish Constitution does not refer to acquired rights with a norm equivalent to that of Costa Rica, given that for Professor Garrido Falla “it is to be supposed that the constituents sidestepped it...”, so that the assessment made of constitutional institutions that are not equivalent turns out to be inaccurate or incomplete and sometimes even contradictory. It adds that the Office of the Attorney General of the Republic, in Opinion C-063-93 of May 5, 1993, concluded, as a derivation of the doctrine of Eduardo Ortiz Ortiz, that:

“Therefore, the subjective right must be understood as a legal situation that generates a benefit to fulfill or meet the needs of the right-holder”; “According to the foregoing, it can be expressed that the acquired right does not admit uncertainty or eventuality, it is not an expectation, but rather implies certainty or firmness in its legal situation”; Precisely, that condition of certainty generates for the right-holder the guarantee of the Legal System of the fulfillment of the legal duty of the Administration to satisfy their needs in the course of the service relationship that binds them, specifically, those whose effect is a patrimonial benefit.” Then, it indicates that the Opinion refers to consolidated situations and cites the Judgment of the Full Court, then in charge of constitutional review, issued in extraordinary sessions on November 9, 1982, and March 4, 1982, to indicate: “…and it is obvious that a legal situation does not become consolidated only with a judicial judgment that declares or recognizes a disputed right, but also under the protection of a legal norm that establishes or guarantees certain consequences in favor of the holder of that right; consequences that a subsequent law cannot disregard without incurring the defect of unconstitutionality for violation of Article 34 of the Political Constitution.” It states that this criterion of the Office of the Attorney General has been reiterated over time, for example, in Opinion C-320-2006 of August 9, 2006, by expressing:

“Based on those constitutional limits, it can be affirmed then that, in relation to the effects of the law over time, the general rule is non-retroactivity, understood as the phenomenon according to which the new law governs all facts and acts that occur from its entry into force, since obviously, if a legal situation has been completely consolidated under the old law, there is no conflict of laws, just as there is none when the facts and situations that must be regulated arise during the effectiveness of the new law. The need to establish which law must govern a given matter arises—as in this case—when a fact originates under the old law, but its effects or consequences are produced under the new one, or when a legal act is performed under the old law, but the new law sets new conditions for the recognition of its effects.

The general formula emanating from Article 34 of the Constitution to resolve the above conflicts is obviously the non-retroactivity of the law, since it guarantees that patrimonial rights legitimately acquired under the prior law are respected, without prejudice to affecting mere expectations of a right, when dealing with legal situations in progress, that is, that have not generated consolidated situations or acquired rights at the moment the new law enters into force; thus, the new law proceeds to regulate said situation in the state in which it finds itself, without prejudice to respecting what has already occurred under the old law.

That is, when dealing with simple expectations, the new law is of immediate application.

That general immediate effect of the new law does not disregard the Constitution, since, because its application concerns legal situations that have not yet been consolidated, it does not have the scope of disregarding acquired rights, much less consolidated legal situations. It is clear then that the norm (Art. 34 of the Constitution) refers to subjective legal situations already consolidated, not to those that constitute mere expectations, since these, because the right has not been perfected, are indisputably subject to the future regulations that the law may introduce.” It indicates that it is of interest to mention the acts of the National Constituent Assembly of 1949 on consolidated legal situations and, in that sense, it considers that the Office of the Attorney General should not have resorted to foreign doctrine when it could have investigated the quintessential source of the Political Constitution, such as the debates of the National Constituent Assembly. It recalls that the faction of the Social Democratic Party presented a draft Constitution that, after being discussed, was discarded by that Assembly in Session No. 52 of April 8, 1949, it being agreed that the Political Constitution of 1871 would be used as the basis for discussion, given that in this one, the issue of the non-retroactivity of the law was addressed in Article 26, which provided, specifically, that “the law has no retroactive effects.” It points out that that National Assembly began the analysis of that matter in Act No. 103, in which the Social Democratic faction presented a motion so that Article 26 would read as follows:

"The law may only have retroactive effect:

1. To the detriment of acquired patrimonial rights, by means of an extraordinary law issued for reasons of manifest public interest. When the retroactivity implies expropriation, the provisions on that matter shall apply.

2. In criminal matters, when the subsequent law favors the accused, even if there is a final judgment, except in the case of crimes by public officials or electoral crimes.

3. In procedural matters, but without altering the validity of prior proceedings.” It argues that Constituent Vargas Fernández, based on the doctrine of don Alberto Brenes Córdoba, proposed modifying the initial statement of the previous motion so that it would read “The law has no retroactive effect to the detriment of acquired rights or consolidated legal situations. However, the following cases may be excepted: ...”; the Social Democratic faction decided to withdraw its motion, leaving that of Deputy Vargas Fernández pending discussion, and a complicated debate ensued. It indicates that that first session in which what is now Article 34 of the Constitution was considered ended without the matter being resolved, and in Act 113 discussion was resumed; Deputies Baudrit González and Fournier presented a new motion that began by saying: “The law has no retroactive effect to the detriment of patrimony already consolidated...” and Deputy Baudrit González, in explaining its content, explained by saying “...I began by stating what refers to consolidated private patrimony, that is, to one’s own property already come into the hands of its owner. I believe that only to that subject matter and field should the non-retroactivity of laws refer, since it contemplates the guarantee that makes property inviolable.” It states that after a long debate with the participation of a large group of Constituents, the motion of Deputies Baudrit González and Fournier was discarded; subsequently, Deputies Fournier, González Herrán, and Desanti presented motions, which were discarded, and after those attempts to form a majority opinion, Deputy Rojas Espinoza presented a motion and the session was adjourned. It adds that in Act 114, discussion of the issue of the retroactivity of the law continues, a new motion from Deputy Rojas Espinoza being introduced, modifying subsection 1) of the exceptions to the principle that the law has no retroactive effect, in whose discussion the proponent affirms that: “...it was well known that the law has no retroactive effect, since its action is directed to the future and cannot go into contemplating past events,” and Constituent Castro Sibaja added that the exception of the first subsection is “...unacceptable and improper, because of the dangers that retroactive laws that come to alter acquired patrimony or to substantially vary definitive legal situations may entail...” and Deputy Leiva interjected with the paragraph of the Act in which it is expressed: “He added that, if colleague Rojas Espinoza would supplement his motion in the sense that the retroactivity of the law cannot affect acquired patrimonial rights, absolutely consolidated, he would vote for it with great pleasure,” and Deputy Arias Bonilla pointed out: “...that the retroactivity of the law cannot affect consolidated legal situations, which signified respect for the acquired patrimony of Costa Ricans. Truly, in no way can one go against a consolidated patrimonial right.” It indicates that Deputy Baudrit Solera finally intervened to say that: “He considers that simply by saying what don Alberto (Brenes Córdoba) so aptly affirms, the problem is solved: ‘The law has no retroactive effect to the detriment of acquired patrimonial rights or consolidated legal situations’,” and with this text, the National Constituent Assembly approved Article 34, which later, in the process of refining the wording, remained with the current text, namely: “No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.” It considers that the result of the analysis of the constituent process turns out to be conclusive: acquired patrimonial rights or consolidated legal situations, by virtue of the application of a current law, cannot be violated by a subsequent law, because that would imply, among other effects, that the consolidated legal situation has been included within the person’s patrimony, and to touch it is to break the principle, also constitutional, of patrimonial intangibility enshrined in Article 45 of the Political Constitution. It points out that it is precisely that constitutional prohibition that has been broken in Law No. 9.544, since its norms affect consolidated legal situations, to the detriment of its represented parties (particular persons), their acquired patrimonial rights (pensions and retirements in course of payment previously declared final), and consolidated legal situations in the form of pension and retirement benefits with constitutional protection under Articles 73 and 74.

It states that it is interesting to bring up the principle of non-retroactivity (irretroactividad) in light of the judgments of the Spanish Constitutional Court, and to that end, it states that the Spanish Constitution of 1978 establishes in its article 9 the so-called legal guarantees, the provisions of point 3) of said article being of special relevance for the matter at hand, according to which, “the Constitution guarantees the principle of legality, the normative hierarchy, the publicity of norms, the non-retroactivity of unfavorable or restrictive punitive provisions concerning individual rights, legal certainty, responsibility, and the prohibition of arbitrariness by public authorities.” It highlights that the formulation of the Spanish Constitution, in relation to the principle of non-retroactivity of the law, is different from the Costa Rican one, since article 34 of the Political Constitution provided that the law shall not have retroactive effect to the detriment of a person or their acquired patrimonial rights or consolidated legal situations; that is, three protected legal interests are established in the protection against non-retroactivity. It states that, in an attempt to harmonize both constitutional texts, it can be said that the guarantee of non-retroactivity in Spain is more restricted and has as its primary limit the “individual rights” of the person; in the case of Costa Rica, the limitations imposed by the constituent on the legislator, regarding the retroactive effect of norms or acts, expands beyond the rights of the “person” (primary rights), to “acquired patrimonial rights” or “consolidated legal situations.” It argues that, according to the foregoing, the jurisprudences of the Spanish Constitutional Court regarding non-retroactivity are not comparable or potentially compatible in the Costa Rican context, except when the previous clarification is made, that what Spanish jurisprudence calls “individual rights” would correspond in Costa Rica to rights of the “person” and which expands to “acquired patrimonial rights” or “consolidated legal situations,” under penalty of incurring serious conceptual errors. It argues that, keeping this differentiation in mind, it can be affirmed that the doctrine of the Spanish jurisprudence of the Constitutional Court has opted to protect—in matters of social security—the individual rights previously declared by earlier laws against future changes to those laws that imply modifications of those rights for persons who have not yet enrolled in a specific insurance, pension, or retirement scheme. It submits that, in other words, if an earlier law served as the basis for granting a pension or social security, and is subsequently modified, those persons who had a constituted individual right, a declared patrimonial right, or a consolidated legal situation shall be protected from the modification, and consequently, citizens who were contributors to the insurance or pension regime, whose rights were not previously constituted, will be affected. It argues that according to judgment 27/1981 of the Spanish Constitutional Court, a legal reform to a mutual-benefit social security system will be constitutional when it seeks to achieve the principle of “unity,” without affecting consolidated legal situations, without suppressing or reducing already consolidated benefits, and without diminishing benefits already received or accrued. It states that, applying the definitions of the Spanish Constitutional Court to the scope of Law No. 9,544, it must be said that the modifications established therein, regarding the amounts of pensions or retirements, tending to modify “individual rights,” rights of the “person,” “acquired patrimonial rights,” or “consolidated legal situations,” may only affect members who have not consolidated their legal situation because they have not fulfilled the requirements and are in the process of acquiring them, thereby clearly excluding from the scope of the new law (Law No. 9,544) pensioners with benefits in the course of payment, since in relation to them there exist previously existing acquired patrimonial rights or consolidated legal situations; that is, in its view, the constitutional guarantee of non-retroactivity means, regarding the pension regime of the Organic Law of the Judicial Branch, that all those pensioners, with ongoing pensions or with rights constituted within 18 months after the enactment of Law No. 9,544 as “pension rights to a current benefit,” may not be affected by the “special, solidarity, and redistributive contribution” (provided it passes the test of constitutionality); the situation being different for those who retire after said 18-month period, since they would do so under the new Law No. 9,544 which does establish—for pensioners and retirees—a cap on the amount of benefits and the aforementioned special contribution. It argues that, when regulatory changes are in conflict with non-retroactivity, due to the presence of a “detriment to the person,” or “acquired patrimonial rights,” or “consolidated legal situations,” the constitutional principle of legal certainty appears as the champion of the dispute, which, in a balanced manner, allows for the promotion of justice and equality in freedom within the legal order, meaning that in the interest of legal certainty, a non-favorable or harmful reform to individuals is intangible, in the specific case the pensioners-plaintiffs, who have acquired personal rights, patrimonial rights, or consolidated legal situations, before the enactment and entry into force of Law No. 9,544. It states that, although no one denies that the legal system is dynamic and changing, it will always have as a limit the detriment to persons or acquired patrimonial rights or consolidated legal situations, when it introduces non-favorable norms, in the interest of a superior good such as the legal certainty of the citizen. It indicates that, therefore, it is evident that articles 236 and 236 bis of Law No. 9,544 are unconstitutional for violation of the principle of non-retroactivity of article 34 of the Political Constitution, insofar as they harm the consolidated legal situation, the patrimonial rights of the plaintiffs who have been pensioners for years or even for those who, under the recently repealed legislation, consolidate their rights within 18 months after the enactment of said law.

• d)Violation of the principles of proportionality and reasonableness, articles 28 second paragraph, 41 and 74 of the Political Constitution: it points out that the legal norms challenged in this action are unconstitutional because they establish an economic burden on the retirees and pensioners of the Judicial Branch Regime that obliges them to contribute 13% as a contribution to the Fund (Fondo), since it imposes the obligation on pensioners to pay a tax called a “special contribution” with percentages it considers confiscatory, ranging between 35% and 55% of the amounts exceeding the exempt base, which turns out to be 10 times the lowest salary paid by the Judicial Branch, which has been set at the sum of ¢413,800.00; and, furthermore, because it places an additional charge of 5 per 1,000 for the financing of an external body, foreign to the Judicial Branch, called the Administrative Board of the Fund (Junta Administrativa del Fondo), which is created in this Law. It indicates that the Political Constitution contains a set of individual rights that perform a guarantee function for the economic patrimony of individuals against the power of public authorities to impose economic burdens on them; so that, faced with the duty of Costa Ricans to contribute to public expenses established in articles 18 and 121 subsection 13), 33 (equality), 34 (non-retroactivity of the law), 40 (non-confiscation), and 45 (patrimonial intangibility and inviolability of private property), these constitutional norms, principles, and values protect the fundamental rights of the individual against any patrimonial exaction coercively established by public authorities, when the sole reason is arbitrariness. It states that the Constitutional Chamber developed, in the 1990s, several definitions of reasonableness as a parameter of constitutionality, highlighting some other concepts such as technical reasonableness, legal reasonableness of equality, and reasonableness in purpose; it also added to its reasoning the contributions made by the judgments of the Supreme Court of Justice of the United States and German doctrine, which managed to determine legitimacy, suitability, necessity, and proportionality as components of reasonableness, and by way of example, it cites judgment number 5236-1999 and number 2000-2858l; for its part, regarding proportionality, it echoes the content of Judgment No. 5758-2018, affirming that there the reasons are indicated for which article 236 bis is considered unconstitutional. It states that after recognizing that reasonableness is a parameter of constitutionality, and applying the indicated conceptual framework to this matter, it follows that the ordinary legislator, through article 236 bis of Law No. 9,544, defined that a group of approximately 130 people would have to contribute additionally by paying the tax of the ordinary contribution paid by all active workers and pensioners, at a rate of up to 55% of the pension amount in the course of payment.

It submits that that legislative act, which intended for fiscal and public finance reasons to reduce pensions in order to correlatively increase income to the fund, must be analyzed to determine whether said measure is legal, suitable, necessary, legitimate, and proportional. It points out that article 121 subsection 13) of the Political Constitution attributes to the Legislative Assembly the competence to establish national taxes and contributions and to authorize municipal ones, creating a differentiating criterion in the territorial element as follows: national taxes are established by it, those of local governments are authorized by it; a difference that is abundantly dealt with in constitutional jurisprudence. It indicates that article 4 of the Code of Tax Rules and Procedures addresses the legal development of that constitutional subsection; a tax rule that covers aspects that could be in conflict with the Political Constitution, such as changing the qualifier of the “national contribution” to convert it into a “special contribution,” and also includes rates which are taxes but are neither taxes nor contributions; the tripartite classification is practically universal in tax law. In addition to the above, it submits that if national or special contributions are a type of tax whose taxable event is the benefit the taxpayer obtains from the execution of a public work or state activities, it is also true that the so-called “Special Solidarity Contribution” does not qualify under any tax designation, and this would imply that the Legislative Assembly lacks the competence to approve laws that create those contributions since they do not respond to what subsection 13) of constitutional article 121 defines; consequently, the special solidarity contribution established in article 236 bis of Law 9,544 is, by its nature, openly unconstitutional in its view. On the other hand, it points out that article 236 bis of Law No. 9,544 is an act limiting rights by establishing a special and solidarity contribution, being considered suitable—by the precursors of the law—to actuarially balance the Fund as well as limit the fiscal expenditure implied by keeping said Fund operating; however, it argues that in reality, article 236 bis of Law No. 9,544 is unsuitable, because it restricts the rights of pensioners, establishing a special, solidarity, and redistributive contribution, which contributes little or nothing to the actuarial balance of the Fund or to the limitation of public spending; therefore, it does not effectively achieve the intended objective, according to the minutes of the Special Committee, but furthermore, the affectation of the individual rights of the pensioners is of such magnitude that it means they are obliged to contribute up to 55% of their nominal pension amount to the direct detriment of consolidated legal situations and their rights to dignity, independence, special State protection, and economic autonomy. It considers that the State, through the Legislative Assembly, had various options to achieve the objective intended upon the enactment of Law No. 9,544; however, it opted for the one that most directly and grossly harmed the legal sphere of all contributors to the Fund, both active workers and pensioners. It adds that, notwithstanding the foregoing, the ordinary legislator chose to take the most abusive and burdensome measure, imposing exorbitant taxes on pensioners, by forcing them to contribute in a special, solidarity, and redistributive manner, but not before also increasing the ordinary contribution and forcing them to finance the operation of an Administrative Board, created within the structure of the Judicial Branch. It considers that, undoubtedly, the decision not only affected but also trampled the legal sphere of pensioners and active workers, whose contribution was increased and whose future pensions were impoverished, all from one day to the next. It considers that upon the enactment of Law No. 9,544, the objective intended by the legislative act was constitutionally restricted and, despite this, they circumvented those provisions to enact the Law in question. It recalls that, according to the provisions of articles 9, 154, and 177, there exists a separation of powers between the Legislative Assembly and the Judicial Branch; however, upon the issuance of said law, such independence was not respected, since bodies were created for the administration of the Retirement and Pension Fund of the Judicial Branch, affecting the organization or functioning of said Branch, without conducting the mandatory consultations ordered by article 167 of the Political Constitution. But, furthermore, it points out that the intrusion of the Legislative Branch, which is constitutionally prohibited, was of such magnitude that it broke the constitutional principles of independence and, therefore, the division of powers. It adds that another aspect that prevents the legitimacy of the questioned norm is found in article 121 subsection 13 of the Political Constitution, since said norm attributes to the Legislative Assembly the power to establish national taxes and contributions and to authorize municipal ones, but does not authorize it to fix special contributions. It adds that, in the case of the pensioners, Law No. 9,544 sought to limit the amounts of pensions by establishing a special and solidarity contribution in article 236 bis, and it did so by imposing an extremely burdensome limitation, which prevents the pensioners it represents from fully enjoying their pensions with tranquility as well as the exercise of their rights established in International Conventions for older adults or pensioners. It indicates that no greater benefit is found for the community, since reducing pensions through a special and solidarity contribution does not solve the actuarial or financial problem of the regime, but does grossly disturb the individual rights of its represented ones, who will see their right to the enjoyment of a pension limited, as well as the guarantee of economic autonomy in old age, and economic and social independence, all through a legislative act that did not fulfill the four indispensable conditions to demonstrate its reasonableness, coupled with the fact that the articles of the Law being challenged are not necessary, suitable, legitimate, or proportional. It considers that it is irrational and disproportionate to establish, through the challenged norms, taxes so high that they almost double the maximum amount of the income tax that would be paid by the lucrative activities of private enterprise, whose percentage is established at 30% of taxable income, while the challenged article allows a deduction of up to 55% of the gross amount of the pension. It recalls that, with respect to retirees, the State also has limits on its taxing power, it being necessary to keep in mind that a pension for a retiree is his or her only income, and for this reason, the tax obligations imposed on them must be governed by the principles of universality, reasonableness, and proportionality that govern the tax rates set for salaries and profits (see in this sense Judgment No. 5758-2018 of 15 hours 40 minutes of April 12, 2018). It states that, in line with the foregoing, the Constitutional Chamber in Judgment No. 654-93 of 15 hours of February 21, 1993, provided that the amount of what an official obtains due to a pension cannot be frozen, precisely because he receives it as remuneration for past services, and in the case of its represented ones, with the application of the special contribution, the retirement or pension is being frozen, which in the judgment of the high Court according to said judgment, would be unconstitutional. It submits that it is of interest to highlight what was resolved by the Chamber in the cited judgment:

"... Retirement is a right of the official, not a grace. It could be said that it constitutes the passive side of the employment relationship. And, consequently, the fundamental notes inherent to the right to salary are also inherent to retirement. In an economic environment afflicted by inflation, it would not be reasonable to freeze a salary of twenty thousand colones per month, let the example serve because such is the 'cap' set by the provision challenged as unconstitutional, especially when similar salaries do enjoy periodic adjustments, as provided in the article in question. Neither, then, can the amount of what, due to a pension, an official receives be frozen; precisely because he receives it as remuneration for past services. In exchange for his services, the active official receives a salary. Having become inactive, he continues to receive remuneration, but this time for services already rendered...“ (the highlights are from the brief).

It argues that the challenged norms leave the retirement or pension, as the case may be, in an amount such that it constitutes “a ruinous, pauperizing, and undignified reduction” (see dissenting opinion in Judgment No. 5758-2018 of 15 hours 40 minutes of April 12, 2018), if it is considered that the right to a fair retirement or pension for retirees and pensioners forms part of the human right to social security and the right to retirement, for elderly persons, qualified as such by the laws dictated by the Costa Rican State to create retirement regimes. Summarizing its argument on this point, it affirms that article 236 bis of Law No. 9,544 is:

• 1)violative of the principle of equality because said special, solidarity, and redistributive contribution is being applied only to the retirees and pensioners whose monthly allocation exceeds the cap newly fixed by the law, that is, four million one hundred thousand colones monthly (4,100,000.00), excluding the active servants and officials of the Judicial Branch whose retirements or pensions are lower than that amount. It considers then that it is a very particular imposition on a special sector, a group of society as vulnerable as the other retirees and pensioners of the Judicial Branch, since only 130 people are affected, while in the regime there are more than 3,900 retirees or pensioners, that is, the reform applies to three percent of the universe. It states that the foregoing is discriminatory in the terms in which the Chamber defined it through Judgment No. 2003-005374 when it indicated that: “there will be a violation of the general maxim of equality, when for a differentiation of the law, no reasonable basis can be found resulting from the nature of things or other adequate causes, or when from the perspective of justice, such regulation must be characterized as arbitrary.” Thus it is not justifiable that a sector of the population that is particularly vulnerable, such as the 130 pensioners, be subjected to that special contribution.
• 2)violative of the principle of non-confiscation because the percentages applied for this so-called “special contribution” are evidently disproportionate, ranging between 35% and 55%, allowing that from each retiree and pensioner up to 55% of the gross amount of the pension be deducted; a percentage that is higher than the maximum amount of income tax for individuals and legal entities; confiscation that the University of Costa Rica report recommended “camouflaging” so that these effects would not be noticed.
• 3)violative of the principle of reasonableness because it concerns, at its core, double taxation: on one hand, pensioners must pay 13% of their pension to contribute to the Fund (according to the challenged article 236), but they are also subject to the payment of that special, solidarity, and redistributive contribution (pursuant to 236 bis) which ranges from 35% to 55%, which also aims to contribute to the Fund, it being that the designations given to the contribution do not exempt it from the limits to which it must be subject according to the framework of the legal system.

It states that the fact that a person retires does not leave the State free to impose a tax obligation that exceeds the tax limits for salaried workers, so, in these percentages, illegitimate inequalities or discriminations are evidenced since the percentage of this contribution amply exceeds the tax for legal entities and individuals; these determinations must take into account the contribution that the judicial official has made throughout his or her working life, which on average is 11% monthly on the gross salary (see in this sense Judgment No. 5758-2018 of 15 hours 40 minutes of April 12, 2018). It adds that, with respect to solidarity, it must be said that, for the moment, the maximum limit of solidarity is determined by the income tax rates which, for individuals, are capped at a maximum of 15%; however, with the reform to the Fund, the capped maximum limit is 55% deduction, without applying to all retirements and pensions, but only to those exceeding the established cap. It warns that solidarity is not only an obligation of retirees, but of the entire population.

• e)Violation of the principle of non-confiscation, article 40 of the Political Constitution: it recalls that article 40 of the Political Constitution states:

“Article 40.- No one shall be subjected to cruel or degrading treatment or to perpetual penalties, nor to the penalty of confiscation. Any statement obtained through violence shall be null.” It indicates that the principle of non-confiscation in tax matters has been considered a constitutionalized principle possessing the characteristics of principles and constituting one of the foundations on which tax systems are based, since confiscation—in Administrative Law—is one of the real ablatable powers that States possess to deprive private individuals of their property, without just compensation, which harms the right to private property with serious detriment to the administered party. For its part, it submits that the principle of non-confiscation constitutes a limit to the exercise of taxing power, linked to the principles of contributory capacity and progressivity, just as it represents a mechanism for protecting the right to private property. It points out that Law 9,544 contains an element of confiscation of the patrimony of retirees and pensioners, imposes conditions by increasing the percentage of ordinary contribution to the Fund, plus the legal charges for income tax, plus a special contribution, estimating that this variation is confiscatory and contrary to the constitutional system. It estimates that the approach contained in article 40 of the Political Constitution is correct; it concerns a penalty, and in the specific case, it is understandable when starting from the vulnerability of the retired population, what a pension is, as well as what it represents for the retired person. It deems it pertinent to allude to the following citation:

“The topic of the third age is an invisible topic. It would seem that aging, like death, is a problem of others, never our own, to such an extent that in our 21st-century society there exist two large unprotected groups: children and the elderly. It could be said that, as we age, our constitutional rights also have an expiration date... Aging not only has personal effects, such as the diminishment of physical and psychic capacities, but also has a series of social effects that have forced States to make public policy decisions. ... For every day the State delays the pension to the elderly person, this person must live on charity or become another dependent of their family, especially if they do not have sufficient savings to overcome the transition from active worker to pensioner. Once they take their pension, they receive no salary, but neither do they receive a pension, because it is being processed. The State, on the other hand, for every day, month, or year it delays payment, can use those funds to meet other 'more pressing needs'. This is practically illicit enrichment, because when the State finally gives the pension or retirement to the elderly person, it does no indexation nor does it pay interest for the time elapsed.

In Costa Rica, there exists a double injustice. The average life expectancy of a person is 76 years; if they retire at 65, we know that practically that person has contributed to a pension regime for thirty years and will enjoy it for at most ten. ... It is recognized that the elderly have specific needs and, above all, that their dignity must not be diminished, because it is not a matter of a surviving, weak, and unproductive minority, but of human beings entering a new stage of their life. Therefore, emphasis is placed on solving specific problems, such as health, quality of life, education, independence, and freedom, just to mention some. ... It was provided that the right to a retirement pension must have a minimum equivalent to prior income, the principle of non-discrimination by age to access and maintain work was established, and it is of interest to us to mention that retirement should be voluntary and not forced” (Gilberth Armijo, Poder Económico y Discriminación Etaria: La Tutela del Adulto Mayor como Derecho Humano Emergente, in Anuario de Derecho Constitucional Latinoamericano. Montevideo, Uruguay. 2009) It adds that the reform challenged in this action specifically affects judicial retirees and pensioners for whom, due to the amount of deductions, special contributions, health insurance, and taxes, the patrimony of retirees inevitably tends to diminish progressively and rapidly. It points out that the Inter-American Court of Human Rights has indicated that age is also a protected category and that the prohibition of discrimination related to age when it concerns older persons is protected by the American Convention (see case Poblete Vilches et al. vs Chile, Judgment of March 8, 2018). It considers that, for all the reasons stated, as the reform in Law 9,544 that it accuses of being unconstitutional has been framed, it effectively violates article 40 of the Political Constitution because it is a law that imposes a confiscatory penalty on the retirees and pensioners of the Judicial Branch, and consequently—in its view—must be declared unconstitutional.

• f)Violation of the principle of administrative responsibility and of the intangibility of patrimony, articles 34, 41, and 45 of the Political Constitution: it points out that the challenged norms break the constitutional principles and norms of patrimonial intangibility; a constitutional principle that demands that any unlawful harm caused by action or omission of the public power in the patrimonial or extra-patrimonial sphere of the administered party must be integrally repaired, compensated, or indemnified, regardless of whether it concerns a licit or illicit action—formal activity—or normal or abnormal functioning, material actions and omissions. It submits that the Constitutional Chamber in Judgment No. 5207-04 of 14 hours 55 minutes of May 18, 2004, held:

“...Article 34 of the Political Constitution protects ‘acquired patrimonial rights’ and consolidated legal situations, which can only be, effectively and really, protected with a system of administrative responsibility of a broad spectrum without immune or exempt zones when they are violated by public administrations in the deployment of their public sector activity or performance.” Paragraph 41 ibidem establishes that 'In resorting to the laws, all must find redress for the injuries or damages they have received to their person, property, or moral interests (…)', this precept imposes the duty on the author and party responsible for the damage to compensate the unlawful injuries effectively suffered by the administered parties as a consequence of the exercise of the administrative function through positive conduct by action or negative conduct by omission of public entities, thereby becoming the constitutional cornerstone for the legislative development of a system of strict and direct liability in which compensation does not depend on moral and subjective reproach of the public official's conduct for willful misconduct or negligence (dolo o culpa) but, solely and exclusively, on having effectively inflicted or received, '(...) injuries or damages to their person, property, or moral interests (...)' that is a legal injury they have no duty to bear and, consequently, must be compensated. Paragraph 41 of the Political Constitution establishes a fundamental compensatory right in favor of the administered party who has suffered an unlawful injury by an entity —through its normal or abnormal functioning or its lawful or unlawful conduct— and the correlative obligation of the latter to compensate or repair it fully... it thus becomes an instrumental right to forcibly ensure the enjoyment and exercise of the compensatory right of the injured party when the party obligated to make reparation voluntarily fails to comply with the referenced obligation. Article 45 of the Magna Carta embraces the principle of the inviolability of patrimony (intangibilidad del patrimonio) that 'Property is inviolable; no one may be deprived of theirs except by legally proven public interest, upon prior indemnification in accordance with the law (...)' thus, the fundamental text recognizes that special sacrifices or singular burdens that the administered party has no duty to bear or tolerate, even if they derive from a lawful activity..." (emphasis is from the brief).

It indicates that the plaintiffs it represents have worked in the service of the Judicial Branch for the time necessary to meet the requirements of the Retirement Regime (Régimen de Jubilación) and, for that purpose, all contributed in accordance with Law No. 7.333, retired under the conditions set forth therein, met all the required requirements, and obtained nothing outside the law. It holds that it is not possible that, due to alleged mismanagement in the finances (although the problem is actuarial) of the State —including the Fund—, as argued by officials of the Executive and Legislative Branches in national media outlets, an attempt is now being made to anchor the responsibility for the public treasury's collapse on 130 retired and pensioned persons whose retirement benefit income is sought to be diminished, without taking into account that the majority are older adults who gave their entire working lives to the Judicial Branch, and that they acquired the right without any transgression of norms and without having engaged in any improper action. It points out that retirees and pensioners under the Judicial Branch's regime have no reason to bear the application of a special, solidarity-based, and redistributive contribution on their pension that is disproportionate and confiscatory. It reiterates that retirees and pensioners have no duty to bear public burdens (Article 18 and 33 of the Political Constitution), which means that a singular or special sacrifice, such as the special solidarity contribution, should not be imposed upon them. It considers that the norms challenged in this acción de inconstitucionalidad grossly violate the Political Constitution, insofar as they impose confiscatory burdens on patrimony previously declared based on the law in force at the time, having met all substantive and formal requirements. It holds that the patrimonial assets that constitute the pension or retirement amount of the plaintiffs it represents are intangible, not susceptible to future normative changes that impose additional burdens because they involve consolidated legal situations (situaciones jurídicas consolidadas). It adds that, additionally, the material act of reducing the pension amount was never notified to each of the pensioners, thereby also violating the principle of reasonableness grounded in Articles 28 paragraph 2), 41, and 74 of the Political Constitution, in the terms indicated by the Constitutional Chamber (Sala Constitucional) in Voto 2002-4842 at 4:12 p.m. on May 21, 2002:

"... the Chamber considers arbitrary, from every point of view, the fact that the Administration failed to communicate to the appellant, prior to the application of the challenged action, the reduction of her salary and the reasons that motivated it, whereby the Administration violated the appellant's right to due process. Likewise, it is considered that the deduction applied by the appealed authority to the claimant of 206,709.00 colones in the month of August 2001 violates the principles of logic, reasonableness, and proportionality, insofar as that sum constitutes the entirety of the claimant's monthly salary. The foregoing because said action represents a confiscatory situation that contradicts, in every respect, the principles that make up the Law of the Constitution...".

• g)Violation of the principle of non-retroactivity, the doctrine of the survival of the abolished law, Article 34 of the Political Constitution: it states that the norms challenged in this process violate the constitutional principle derived from paragraph 34 of the Political Constitution known as the "survival of abolished rights" when consolidated legal situations are present; therefore, it pleads for the application and respect of the doctrine of the survival of the abolished law as a corollary of the principle of non-retroactivity and which seeks to ensure respect for the certainty that a change in the legal order cannot have the consequence of altering acquired rights and consolidated legal situations. It argues that the repeal of norms, or a change in normative criteria, does not produce the effect of also repealing the rights developed in favor of citizens at the time those norms were in force. It indicates that this is the legal phenomenon doctrine defines as the survival of the abolished law because, for acts or contracts in force, the repealed law remains in force in order to grant protection against the new legal norms. It indicates that constitutional jurisprudence has stated in ruling number 2006-12239, in relevant part, the following:

"Principle of Non-Retroactivity. This principle translates into the certainty that a change in the legal order cannot have the consequence of causing that, if the factual premise had occurred prior to the legal reform, the consequence (advantageous, it is understood) that the interested party expected from the consolidated legal situation no longer arises. Certainly, no one has a 'right to the immutability of the legal order,' that is, that the rules never change; therefore, the constitutional precept does not consist in that, once born into legal life, the rule connecting the fact to the effect cannot be modified or even suppressed by a later norm; however, a reform that changes or eliminates the rule cannot have the power to prevent the conditioned effect expected under the rule of the prior norm from arising. This is so because what is relevant is that the state of affairs enjoyed by the person was already defined in terms of its elements and effects, even if these are still being produced or have not even begun to be produced. Thus, what the person has a right to is the consequence, not the rule. Therefore, as the Chamber has expressed on previous occasions, the repeal of norms or a change in normative criteria does not produce the effect of also abolishing the rights developed in favor of citizens at the time those repealed norms were in force. This is the legal phenomenon doctrine defines as the survival of the abolished law, because, for acts or contracts in force, the repealed law remains in force to grant protection to those acts and contracts against the new legal norms. However, new legal situations must be governed by current and valid law, as these are cases of innovation of rights. In other terms, the abolished law continues to protect acts and contracts and other rights acquired during the validity of the law, norm, or agreement, which finds its basis in the relationship between Articles 34 and 129 of the Constitution." It indicates that, in application and respect for the doctrine of the survival of the abolished law, the Judicial Branch's retirements and pensions obtained under the provisions of Law No. 7.333 and its amendments should remain unscathed for all who acquired that right, despite the legislative change imposed by Law No. 9.544, otherwise Article 34 of the Political Constitution and its correlated principle of non-retroactivity would be violated.

It concludes by requesting that, based on the arguments set forth in this brief, the unconstitutionality of Law 9544 of May 22, 2018, called "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its amendments," be declared, and also that it be annulled from the Costa Rican legal order, leaving the text of the prior Law in force. It indicates that, for violating the constitutional principles of non-confiscation, equality, due process, consolidated legal situations, the principles of equality, inviolability of patrimony (intangibilidad del patrimonio), private property, proportionality, and reasonableness, it requests that the norms of Law 9.544 that amend the Organic Law of the Judicial Branch be declared unconstitutional and consequently annulled from the legal order, specifically, the following provisions: Article 236 subsection 1) and penultimate paragraph; Article 236 bis and Article 239.

131.- On September 19, 2018, the full Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the substitute Magistrate José Paulino Hernández Gutiérrez and substitute Magistrate Marta Esquivel Rodríguez, filed a recusal (inhibitoria) considering that they have a direct interest in the outcome of this acción de inconstitucionalidad (on the same terms as they did in the main file 18-007819-0007-CO).

132.- In a resolution of the Presidency of the Constitutional Chamber —Magistrate Araya García— at 9:05 a.m. on September 20, 2018, the full Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and the substitutes Hernández Gutiérrez and Esquivel Rodríguez were recused from hearing this matter, ordering that the pertinent information be communicated to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional).

133.- By official communication added to the electronic file on September 20, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6458 carried out for the substitution of Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and the substitute Magistrates José Paulino Hernández Gutiérrez as well as Marta Esquivel Rodríguez for having recused themselves from hearing this acción de inconstitucionalidad. It is reported that the selected substitute Magistrates are: Anamari Garro Vargas, Hubert Fernández Argüello, Alejandro Delgado Faith, Rónald Salazar Murillo, Ana María Picado Brenes, Lucila Monge Pizarro, and Alicia Salas Torres.

134.- On September 24, 2018, substitute Magistrate Anamari Garro Vargas; on the following 27th, substitute Magistrate Alicia Salas Torres; on October 2nd, substitute Magistrates Hubert Fernández Argüello, Rónald Salazar Murillo, and substitute Magistrate Lucila Monge Pizarro; on the following 3rd, substitute Magistrate Ana María Picado Brenes; and on October 9th, substitute Magistrate Alejandro Delgado Faith, filed a recusal in this file on the same terms they did in the main file 18-007819-0007-CO.

135.- In a resolution at 8:48 a.m. on October 17, 2018, the Presidency of the Constitutional Chamber —Magistrate Jorge Araya García— denied the recusal motion filed by substitute Magistrate Delgado Faith, enabling him to hear the file; furthermore, it ordered the recusal from hearing this process of the substitute Magistrates Garro Vargas, Salas Torres, Fernández Argüello, Salazar Murillo, Monge Pizarro, and Picado Brenes, as well as to communicate the pertinent information to the Presidency of the Supreme Court of Justice so that their substitution may proceed according to Article 6 of the Law of Constitutional Jurisdiction.

136.- By official communication added to the electronic file on October 30, 2018, the Presidency of the Supreme Court of Justice sent the result of draw #6571 carried out for the substitution of the substitute Magistrates Anamari Garro Vargas, Alicia Salas Torres, Hubert Fernández Argüello, Rónald Salazar Murillo, Lucila Monge Pizarro, and Ana María Picado Brenes, stating that because the Chamber had originally requested 6 substitutes and there are only 3 available, the draw was conducted with the available substitutes, with Mauricio Chacón Jiménez, Ileana Sánchez Navarro, and Jorge Araya García being selected.

137.- Substitute Magistrate Ileana Sánchez Navarro and substitute Magistrate Mauricio Chacón Jiménez —on October 31, 2018— filed a recusal from hearing this acción de inconstitucionalidad on the same terms they did in the main file 18-007819-0007-CO.

138.- The Presidency of the Constitutional Chamber, exercised by Magistrate Araya García, in a resolution at 1:48 p.m. on October 31, 2018, recused substitute Magistrate Ileana Sánchez Navarro and substitute Magistrate Mauricio Chacón Jiménez from hearing this file, and ordered that the file be sent to the Presidency of the Supreme Court of Justice for appropriate action.

139.- By resolution of the Presidency of the Constitutional Chamber —Magistrate Araya García— at 2:02 p.m. on October 31, 2018, and based on the decision of the President of the Constitutional Chamber —Magistrate Castillo Víquez— at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared enabled to hear this acción de inconstitucionalidad, ordering the processing of the file to continue.

140.- On February 12, 2019, Magistrate Fernando Cruz Castro appeared to state that, in this file and all others that have been consolidated with the main file number 18-007819-0007-CO, he presented, along with other Magistrates, a request for recusal because the reform to the Law of the Judicial Branch's Retirement and Pension Regime is being challenged. He argues that, although said recusal was initially accepted, subsequently all the Magistrates were enabled based on the principle of non-waivability of jurisdiction (irrenunciabilidad de las competencias). He argues that since August 2018 he has held the position of President of the Supreme Court of Justice and for that reason believes he has a new reason to request the recusal. He adds that, in other proceedings before this Chamber where he has been the respondent or intervening party in his capacity as President of the Supreme Court of Justice, he has requested recusal because he considered it improper for him to act as a judge in a matter where he has been called as a party in said capacity, considering that, in the files indicated supra, the same situation exists as he cannot participate in the voting on these actions because, as President of the Court, he will be called to report on the merits since the regulation is related to the Judicial Branch. He argues that, for that reason, he presents this recusal and requests that the record be sent to the Presidency of the Constitutional Chamber to resolve as appropriate in accordance with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

141.- By resolution at 1:34 p.m. on February 12, 2019, the President of the Constitutional Chamber —Magistrate Fernando Castillo— and based on the decision at 2:40 p.m. on August 3, 2018, issued in the main file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was recused from hearing this matter and substitute Magistrate Marta Esquivel Rodríguez was declared enabled to hear this matter, ordering the processing of the file to continue.

142.- Regarding Acción de Inconstitucionalidad No. 19-001720-0007-CO. In interlocutory resolution of the Full Chamber number 2019-005517 at 9:20 a.m. on March 27, 2019, it was ordered that acción de inconstitucionalidad 19-001720-0007-CO be consolidated with the file designated as main file number 18-007819-0007-CO, and that it be treated as an expansion thereof, due to the evident connection between the challenges raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the involved parties.

143.- By brief received in the Chamber's Secretariat at 7:59 a.m. on February 4, 2019, acción de inconstitucionalidad number 18-014168-0007-CO was filed, brought by Mayra Campos Zúñiga, adult, married, attorney, Deputy Prosecutor of the Public Ministry (Ministerio Público) and Professor at the University of Costa Rica, residing in Los Ángeles de San Rafael de Heredia, with identification number 4-136-313; against the entirety of Law No. 9544 of April 24, 2018, which reforms the Judicial Branch's Retirement and Pension Regime contained in the Organic Law of the Judicial Branch No. 7333, and specifically against Articles 224 as well as Transitorios II and VI of that Law No. 9544. She indicates that, in accordance with the provisions of Article 75 of the Law of Constitutional Jurisdiction, standing to file this action derives from the recurso de amparo she filed, which is being processed under file number 18-017019-00007-CO, and in which the unconstitutionality of the norms now challenged is alleged, which was admitted by resolution at 1:08 p.m. on January 24, 2019, and which remains pending resolution. She states that she has been a judicial official in the position of Deputy Prosecutor since January 2, 1988, and as of the date of filing this acción de inconstitucionalidad, she has 28 years and 6 months of service for the Judicial Branch. She states that, according to the preliminary calculation of her retirement, she would acquire the right on July 16, 2020, pursuant to Law 7333. She states that she receives a biweekly salary of ₡1,468,153.45 colones and, as a result of the Law that reformed the Judicial Branch's Retirement and Pension Regime, number 9544 of April 24, 2018, the following additional monthly deductions are applied to her: ₡288,421.66 (Judicial Branch Pension Fund - Fixed Percentage) and ₡11,093.14 (Commission for Retirement Fund Expenses). She adds that, furthermore, due to this law she now challenges, she will have to contribute more toward her pension than officials who contribute to the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social); a fact she considers openly contrary to the principle of equality declared by Article 33 of the Political Constitution. She states that she will also have to continue contributing to the Judicial Branch's pension regime even after being pensioned, but persons contributing to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund will not have to contribute once pensioned. She states that the annulment of the challenged norm in an acción de inconstitucionalidad will also allow the Constitutional Chamber to annul the individual acts of application, as permitted by Articles 48 of the Political Constitution and 29 and following of the Law of Constitutional Jurisdiction, and thereby, she considers her right to salary and pension could be protected. She raises the following arguments of unconstitutionality regarding the challenged regulation:

• 1)Violates Article 29, subsection a) of Convention 102 of the International Labour Organization (I.L.O.) - Right of belonging. She argues that she has contributed for over 28 years to a pension regime that guaranteed her retirement at 30 years of service and 55 years of age; however, unexpectedly, with the challenged regulation, the rules are modified without considering acquired rights and belonging to a specific regime. She adds that the Constitutional Chamber itself, in Voto 6124-93 at 2:30 p.m. on November 23, 1993, has recognized that "...belonging to a specific pension or retirement regime is acquired from the moment one begins to contribute to said regime..."; this entails the legitimate recognition of an expectation to retire or be pensioned during the entire time the person contributes to the pension regime. She indicates that in recurso de amparo number 99-03552-0007-CO-P, in which the conflict presented by one of the contributors to the National Teachers' Pension Regime (Régimen de Pensiones del Magisterio Nacional) was heard, the main argument raised there was that, for over 20 years, she worked for the Ministry of Public Education and during that period contributed to the system under Law 2248; a law that was later reformed by No. 7268 and that, at the time her pension was granted, it was done based on Law 7531 which had entered into force in July 1995. She indicates that, in that matter, the appellant considered that the rights acquired under the first law were being violated, and the National Pension Board (Junta Nacional de Pensiones) was given a hearing, which objectively acquiesced to the appellant's claims, admitting the existence of acquired rights. She states that when resolving the filed recurso, the Chamber reiterated the jurisprudence upheld in Voto 1147-90 at 4:00 p.m. on September 21, 1990, indicating that a pension is a fundamental right and protected under Convention 102 of the International Labour Organization, specifically in heading 29, subsection a), considering that the appellant, having contributed for 20 years under Law 2248, had an acquired right to be pensioned under the provisions established by that law, even though it was no longer in force at the time the appellant requested her pension be granted. In this regard, she notes that the Chamber ordered:

"In the case at hand, the appellant contributed for twenty years under Law 2248, as admitted by the National Teachers' Pension Board, acquiring the right to her retirement in accordance with that law, as established by the cited Convention 102; even if she completed the remaining time when Law 7531 of July thirteenth, nineteen ninety-five was in force. By reason of the foregoing, agreement 3334 of the National Teachers' Pension Board and resolution 2262-99 of the National Pension Directorate retroactively apply said law, to the detriment of the appellant's acquired rights, in violation of the prohibition against retroactivity of the law" (see ruling No. 6842-99 at 8:45 a.m. on September 3, 1999).

She indicates that, in accordance with the binding jurisprudence of the Constitutional Chamber, the right to a pension or retirement is a fundamental right acquired from the moment one begins to contribute to the specific regime in question, which materializes upon meeting the requirements established by the legal order, and that the act approving the benefit is declaratory and not constitutive in nature, further recognizing that a right of belonging exists when one has contributed for 20 or more years to a specific regime. She argues that, in her particular case, it is clear that she has contributed for over 28 years to a regime that allowed her to retire at 30 years of service. She requests that, based on the foregoing, the stipulations of the cited Convention, and constitutional jurisprudence, an acquired right be declared in her favor, as well as her belonging to the regime on which she had the expectation of retirement.

• 2)Violation of the principle of equality and respect for the right of belonging of officials of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) who contribute to the Judicial Branch's Pension and Retirement Regime, as well as a violation of the principle of equality for Judicial Branch officials. She indicates that Article 33 of the Political Constitution of Costa Rica, as well as paragraph 24 of the American Convention on Human Rights, establish the principle of equality as one of the fundamental tenets. She argues that there is no doubt that this principle and non-discrimination are of fundamental importance for safeguarding fundamental rights, both domestically and in International Law. She points out that, under the Inter-American Human Rights System, discriminatory treatment is understood as any exclusion, restriction, or privilege that is not objective and reasonable, thereby constituting a violation of Human Rights. She recalls that the Constitutional Chamber of Costa Rica has repeatedly held that the principle of equality is one of the fundamental pillars of human beings and must therefore be zealously protected. In this regard, she notes that in ruling number 5061-94 at 5:34 p.m. on September 6, 1994, the prohibition against making distinctions between two or more persons who are in the same legal situation or identical conditions was indicated, without it being possible to claim equal treatment when conditions or circumstances are unequal, thus recognizing equal treatment for equal situations and allowing or authorizing different treatment for different situations and personal categories. She argues that, delving into the subject, the Chamber specified: "But the requirement of equality does not legitimize just any inequality; to legitimize differentiated treatment, to determine whether a discrimination is truly justified, one must analyze whether the reason producing it is reasonable, that is, whether, given the particular circumstances of the case, different treatment is justified." She adds that, in the same vein, ruling number 1770-94 at 9:18 a.m. on April 15, 1994, of the Constitutional Chamber reiterated that the principle of equality "is only violated when the inequality is devoid of an objective and reasonable justification. Moreover, the justification for the act considered unequal must be evaluated in relation to its purpose and effects, such that a reasonable relationship of proportionality between ends and means must necessarily exist." She adds that the violation of fundamental rights of judicial officials must be highlighted in the different treatment the legislator provides regarding the matter of acquired rights compared to those who work for the Supreme Electoral Tribunal. She indicates that pursuant to the mandate of Article 129 of the Political Constitution, laws approved by the Legislative Assembly "... are binding and take effect from the day they designate; failing this requirement, ten days after their publication in the Official Gazette." She states that, in the case of the challenged Law, as expressly provided by Law 9544 at the end —without any numbered article—, the legislators ordered its immediate effect upon publication, which occurred in La Gaceta number 89 of May 22, 2018. She mentions that Transitorio VI of the cited Law provides the following:

"TRANSITORIO VI- Judicial employees who meet the requirements to acquire the right to a pension as established in the text of Title IX of Law No. 7333, of May 5, 1993, within eighteen months following the enactment of this law, may be pensioned under the provisions established in the aforementioned text." However, she considers that the objective reasons that justified the right of belonging —as she previously indicated— are the same ones that should justify equal treatment for those who work in the Judicial Branch, and must protect all employees who belong to the Judicial Branch's Pension and Retirement Regime, as well as those who work in the Supreme Electoral Tribunal, recognizing a right of belonging in accordance with the reasonable limits of having contributed for 20 years to the regime.

It argues that the Transitory Provision stipulates:

“TRANSITORIO II- The officials of the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its amendments, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, this reform shall not be applied to their detriment and their rights acquired in good faith must be respected at all times. However, they are empowered to request, under the terms set forth in Articles 226 and 234 of this law, the refund of the worker, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, in order to be able to transfer to the Disability, Old Age, and Death Pension Regime administered by the Costa Rican Social Security Fund (CCSS), if they so wish” (emphasis added by the petitioner).

It recalls that for more than 20 years, the Constitutional Chamber of the Supreme Court of Justice, in vote 2765-97 at 15:03 on May 20, 1997, specified the meaning and scope of certain fundamental legal concepts within the framework of the guarantee enshrined in Article 34 of the Political Constitution, which provides that “no law shall have retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.” It indicates that in the cited pronouncement, the Chamber expressed that an acquired right exists when “a thing —material or immaterial, whether a previously alien good or a previously non-existent right— has entered (or had an impact on) the person's patrimonial sphere, so that the person experiences a verifiable advantage or benefit”; it was further noted that good faith is always protected, precisely to guarantee legitimate expectations. It recalls that the principle of good faith is of constitutional rank and obliges public authorities as well as the law itself to presume good faith in private actions, but it also implies the obligation of the authorities to act in good faith in legal relationships, and the right to expect that others will proceed in the same manner. It argues that, ultimately, it is a principle that establishes the framework within which the relationships of private individuals with public authorities must be conducted. It considers that the transitory provision, in the terms in which it was adopted, is entirely discriminatory by distinguishing between members of the Judicial Branch Pension and Retirement Regime as to whether they work for the Judicial Branch or for the Supreme Electoral Tribunal, and it considers that there is no reason, criterion of reasonableness, or proportionality that justifies the existence of unequal treatment: a) it argues, first, that this involves the modification of a provision of the Organic Law of the Judicial Branch that was also applicable to persons working at the Supreme Electoral Tribunal, so the exception must cover all those to whom it applied; b) in both cases, they are public officials; c) judicial functions are evidently more demanding than the work of that other body (TSE); d) the transitory provision offers no reason or justification for maintaining the regime for the officials of the Supreme Electoral Tribunal and not for those of the Judicial Branch; e) there is no question whatsoever that the persons working in the Judicial Branch acted in good faith. It points out that, if the previous legislation is the same, then why create this odious differentiation? Given that the law offers no justification for discriminatory treatment that violates the principle of equality. On this point, it requests the Constitutional Chamber to carry out an interpretation in accordance with the Block of Constitutionality in the sense that Transitorio II of Law No. 9544 is also applicable to the officials of the Judicial Branch with 20 or more years of service, under the same arguments set forth in the transitory provision insofar as it literally indicates: “this reform shall not be applied to their detriment and their rights acquired in good faith must be respected at all times.” 3) It fails to address gender differentiation in the design of the Pension and Retirement Regime established in Law No. 9544, in serious and direct violation of the principle of positive discrimination: it points out that Article 224 of the Organic Law of the Judicial Branch, amended by Law No. 9544, requires the same age for men and women judicial employees to access the ordinary pension, establishing for both the attained age of 65 years. It states that with this measure, the legislators equated two groups that are in a clearly unequal situation, on the basis of gender, and with this, the principle of equality is breached, which obliges not only to treat equal situations equally and to differentiate what is different, but also to establish positive actions in situations of disadvantage. It states that failing to address the special socio-economic and labor situations of women working in the Judicial Branch contravenes the fundamental right to real equality, the right to health, and human dignity, enshrined in Articles 33 and 21 of the Political Constitution, by the legislator not approving positive action measures (positive discrimination) to alleviate their unequal situation vis-à-vis men. It recalls that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by the Government of Costa Rica through Law No. 6968 of October 2, 1984, and in force since its publication, defined the concept of discrimination against women in the following terms:

“Article 1:

For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (emphasis added by the petitioner).

For its part, it indicates that Article 2 must be cited, which prescribes:

“States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake to:

a...

• b)Adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.
• c)...
• d)Refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.
• f)Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (…)” (emphasis added by the petitioner).

And in the same vein, it cites Article 11:

“1- States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(...)

• e)The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave. (...)” (Emphasis added by the petitioner) It adds that, in the same vein, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará”, in Article 6, recognized that the right of every woman to a life free from violence translates, among others, to “...the right of women to be free from all forms of discrimination.” It states that, in other words, all forms of discrimination —such as the non-recognition of their disadvantaged condition that affects the right to equality— is a sanctioned form of violence. It adds that, in the case of the right to retire, establishing a different age is imperative for the recognition of the ordinary pension for women in relation to men; a differentiation that is fundamentally based on respect for equality of rights between them since, when speaking of women's rights and their defense and development, it is necessary to recognize that the different tasks assigned to women place them in a position of greater vulnerability and, therefore, to confront this reality, recourse has been made to what U.S. doctrine has called positive action or affirmative action, which is nothing other than the application of policies or actions to favor certain minority groups or those who have historically suffered discrimination, with the main objective of seeking balance. It points out that the Inter-American Court of Human Rights itself, in Advisory Opinion number 16, established the existence of so-called “real inequalities,” which obliges States to adopt compensatory measures that contribute to reducing or eliminating obstacles and deficiencies that impede or reduce the effective defense of the person's interests; the United Nations (UN) has done the same in holding that the principle of equality sometimes requires States to adopt positive actions to reduce or eliminate the conditions that originate or facilitate prohibited discrimination for sectors where a vulnerable situation is evident, hence both the United Nations and the Inter-American Commission have reiterated the obligation of States to grant, in specific situations, preferences compared to the rest of the population in order to correct existing de facto discrimination. It states that, in the case of the challenged law, the legislator violated, by omission, the Law of the Constitution by granting equal treatment to two groups that are in completely different positions. For that reason, it requests that, by omission, the unconstitutionality of Article 224 of the Organic Law of the Judicial Branch, amended by Law No. 9544, be declared, for requiring the same age for men and women judicial employees to access the ordinary pension, establishing for both the attained age of 65 years.
• 4)Transitory provisions governing the validity of the previous regime are discriminatory by not providing for progressivity in their application: it points out that the modification to the regime adopted in Law No. 9544 is drastic and burdensome for the employees of the Judicial Branch because, categorically, all its elements were modified substantially, in the indicated terms, without providing for a graduation or gradualness in its implementation, as should have been done, in order to avoid extremely serious impacts, which it is already being observed that the challenged legislation is causing for the generality of active employees, and to a lesser extent —about 3%— for retirees or pensioners who are in the range of amounts greater than 4 million colones. It considers that the legislator should have provided for measures of gradualness, as the unions of the Judicial Branch proposed to the Legislative Assembly, in order to compensate for the additional sacrifice that the working class has to make with this new regime. It warns that the Comptroller General of the Republic pronounced in that sense when she indicated to the deputies who were members of the Special Commission and insisted on the need to adopt healing and prevention measures to guarantee the sustainability of the regime, in accordance with the socio-economic reality of the country and the finances of the State, without this translating into a weakening of the Judicial Branch —with regard to the remuneration system for judicial employees and the institution's pension system—, but clarified that such changes:

“... will be gradual because these issues are complex. As I was telling Mr. Johnny, one cannot pretend to ideally have everyone in the same regime from one year to the next, it is very complex and requires gradualness and proportionality” (see Minutes of ordinary session number 8 of the Special Commission, held on November 16, 2016).

It considers that failing to provide for progressivity in the execution of these changes to the Judicial Branch pension and retirement system generates a special impact on a collective group of 62%, due to the serious and special harm that is already being caused, the unrestricted compliance with this law to the employees of the Judicial Branch, who from one day to the next saw their salaries significantly reduced, not only due to the increase in the contribution to the regime, but also due to the financing of the Board of Administration. It states that, in that sense, based on the actuarial study prepared by the University of Costa Rica —which in its Product 5 provided several criteria, of which IICE_3 and IICE_4 were not only sustainable but also showed a surplus—, it is that through official letter 222-P-2017 of July 27, 2017, Mr. Carlos A. Montero Zúñiga, M.Sc., member of the Superior Council and Coordinator of the Technical Team of the Judicial Branch, required the Special Commission to contemplate progressivity in the application of the new legislation to be determined and approved, in the following terms:

“1. The Judicial Branch formally received to its satisfaction the Actuarial Study of the Retirement and Pension Fund prepared by the Institute for Research in Economic Sciences of the University of Costa Rica, which was developed with the participation of the union conglomerate of the Judicial Branch as part of the Executive Committee that approved the products prepared by the University of Costa Rica.

2. The study proposes two actuarial solvency frameworks, IICE_3 and IICE_4, which, in turn, were developed under three scenarios, namely the pessimistic one with a 2% rate of return, the normal one with 3%, and the optimistic one with 4%.

In the optimistic scenarios, not only is the deficit overcome, but an actuarial surplus is achieved.

3. According to official letter No. 0406-FC-2017 signed by Ms. Floribel Campos Solano, Master, Head of the (sic) Financial Accounting Department, which I attach, from the year 2000 to date, the Retirement and Pension Fund has obtained real returns of 4.64%.

All of the above demonstrates that it is possible to work with the 4% scenarios and that the surplus produced compensates for the introduction of graduations that mitigate the negative impact of the eventual reforms on judicial employees” (Official Letter 222-P-2017 and Official Letter 0406-FC-2017).

It indicates that this requirement was reiterated by Mr. Carlos A. Montero Zúñiga in official letter 223-P-2017 of July 27, 2017; however, compliance with superior —constitutional— principles of the least impairment of the right, equality, and solidarity, as has been explained, was not heeded. In response to this point, it requests that the unconstitutionality of the transitory provisions governing the validity of the previous regime be declared, for considering them discriminatory by not providing for progressivity in their application.

• 5)Unconstitutionality due to the omission of consultation with autonomous institutions: it indicates that consultation with the Costa Rican Social Security Fund was omitted regarding substitute texts 1 and 2, opinions, and the final draft, by which it considers that Articles 73, 189, and 190 of the Political Constitution have been violated. It argues that, in the specific case, the Law called “Reform of the Judicial Branch Retirement and Pension Regime, contained in Law No. 7333 which is the Organic Law of the Judicial Branch of May 5, 1993 and its amendments” No. 9544 of May 22, 2018, in its Article 1°, amended Article 226 of the Organic Law of the Judicial Branch which establishes functions and competences for dependencies of the CCSS concerning the transfer of contributions from the Disability, Old Age, and Death Regime administered by this constitutional body, to bolster that of the Judicial Branch, as follows:

“Article 226 - For the computation of time worked, it shall not be necessary for the officials to have served the Judicial Branch consecutively or in positions of equal category. All years of paid work shall be taken into account, with the employee needing to have served the Judicial Branch for at least the last twenty years.

Only time served and contributed in state public dependencies or Institutions shall be recognized. In no case may time served in non-state public law institutions with a corporate basis be computed.

If the provision of service by the official was on a part-time basis, the corresponding proportion of that salary shall be recognized.

All means of proof shall be admissible to prove the time served by the worker. When evaluating the evidence, the in dubio pro fondo principle shall be taken into consideration.

If the interested party had contributed to other pension regimes established by another dependency or by another State institution, the Judicial Branch Retirement and Pension Fund, at the time of granting the retirement, shall have the right to demand, and the respective institution or dependency shall be obliged to transfer the amount of those contributions (worker, employer, and state) through an actuarial settlement.

In the event that the amount contributed by the interested party, the employer, and the State does not reach the amount corresponding to the Judicial Branch Pension and Retirement Fund, the interested party must reimburse to it the sum owed for the contribution differences updated to present value by the consumer price index (CPI), defined by the National Institute of Statistics and Census (INEC). Furthermore, the interested party must pay the average real return that would have been obtained on the transferred sums had the Judicial Branch Retirement and Pension Fund invested them during the recognized period” (emphasis added by the petitioner).

Additionally, it points out that Article 234 amended by Law No. 9544 provides in pertinent part:

“Article 234- Persons who have worked in the Judicial Branch and who have ceased to hold their positions without having obtained the benefits of retirement or pension shall not have the right to have the amount of the contributions with which they have contributed to the formation of the Retirement and Pension Fund returned to them.

Nevertheless, they shall have the right that the amount of the worker, employer, and state contributions with which they have contributed to the formation of the Judicial Branch Retirement and Pension Fund be transferred through an actuarial settlement to the Costa Rican Social Security Fund (CCSS), or to the institution administering the basic regime in which the retirement or pension will be granted to them (...)” (emphasis added by the petitioner).

It states that, from the literal wording of the transcribed provisions, the possibility is clearly concluded that a State official who has contributed to the CCSS’s Disability, Old Age, and Death Regime may transfer the amount of their contributions from that general pension fund —protected by the Political Constitution in its Article 73— to the Judicial Branch Regime; the CCSS has the new obligation to transfer the amount of those contributions (worker, employer, and state) through an actuarial settlement in favor of the Judicial Branch Fund. It adds that Articles 227 and 233 —amended by the aforementioned Article 1° of Law No. 9455— also relate to the subject, and provide:

“Article 227- The judicial employee who becomes permanently incapacitated for the performance of their position or employment, as declared by the State Disability Qualification Commission of the Costa Rican Social Security Fund (CCSS) or by the instance designated by that institution, and has worked for five years or more for the Judicial Branch, shall be separated from their position with a permanent retirement. //(...)” (emphasis added by the petitioner).

“Article 233- The enjoyment of the benefit shall be suspended for the retired person during the time they are receiving any other salary from the State, its institutions, and the municipalities.

This limitation shall not apply when they teach lessons in higher education institutions.

When the benefit has been granted for disability and the person wishes to re-enter the labor sector, they must request the respective authorization and have the approval of the State Disability Qualification Commission or the instance designated by the Costa Rican Social Security Fund (CCSS), provided that the new activity is different from the one for which they were declared disabled” (emphasis added by the petitioner).

It argues that, with this legislation, competences were attributed to the “State Disability Qualification Commission of the Costa Rican Social Security Fund” without it having been consulted regarding the respective advisability and opportunity, and the transfer of contributions from the General Pension Regime administered by the Costa Rican Social Security Fund was also authorized, as provided by the Political Constitution. It considers that, for the foregoing reason, the challenged law is null by reason of unconstitutionality, since consultation with the CCSS is mandatory in light of Articles 73, 74, 188, 189, and 190 of the Political Constitution, given that, in the legislative process of the referred law, the CCSS was not consulted on any of the substitute texts approved by the Special Commission during the legislative process, namely on September 13, 2016, and March 29, 2017, nor on the final substitute text approved on July 29, 2017, which was reported with an affirmative majority opinion published in the Official Gazette La Gaceta, Supplement No. 189 of August 4, 2017. It considers that, with the above, the rule of mandatory consultation required in the indicated constitutional articles was breached, despite the fact that the previous legislative proposals affected the competences constitutionally assigned to the CCSS as a constitutional body. It argues that the legislation approved within the legislative body changed the organization and competences of an autonomous institution, also taking into consideration that, with the reform introduced by the challenged Law, the Pension Fund administered by the Costa Rican Social Security Fund could be directly and harmfully affected. In addition to the above, the petitioner considers that another unconstitutionality exists due to the omission to carry out the mandatory consultation of the State banks. In this sense, it argues that, based on the mandate of Article 190 of the Political Constitution, the same defect as analyzed above is alleged, except that the omission of consultation now occurred in relation to the State banks which, by constitutional provision, are autonomous institutions. It points out that this is so because, with the amendment of Article 240 bis introduced by Law No. 9544, the autonomy of the state banks was affected, since this provision provides the following:

“Said Board is authorized to place the resources of the Judicial Branch Retirement and Pension Fund in the following investment possibilities:

• a)Up to twenty-five percent (25%) of the Fund in credit operations through state banking institutions, cooperatives, savings banks, associations, and unions of employees, retirees, or pensioners of the Judicial Branch, which have the platform that allows them to administer said resources and are supervised and authorized by the General Superintendency of Financial Entities (SUGEF), the foregoing to finance loans for construction or improvement of housing and other social loans for their members, according to the regulation that must be issued for this purpose, as well as for the purchase of land, expansion, remodeling, reinforcement, and construction of buildings destined for the Judicial Branch, in accordance with the regulation issued for this purpose.
• b)At least thirty percent (30%) of the Fund, in securities issued by the public sector.
• c)In financial instruments issued by trusts:
• 1)With financial entities, public or private, to place resources destined for personal loans for micro-businesses and housing.
• 2)With financial entities, public or private, for participation in the development of productive and infrastructure projects of national or social interest” (emphasis added by the petitioner).

It argues that this provision establishes serious limitations on the administrative autonomy that the State banks constitutionally exercise under the aegis of Constitutional Articles 188, 189, and 190 and, in that sense, it asserts that the new rules limit their credit possibilities by subjecting them to percentage investment obligations that directly affect their autonomy. It argues that it must be taken into consideration that decisions in this matter are technical and are protected by the regime of banking autonomy; however, none of what was regulated nor its legal, financial, accounting, or other scopes were consulted with the banking entities that make up the National Banking System, which is why, in its view, this omission makes the entirety of the law null, by reason of unconstitutionality, for once again breaching the mandate of numeral 190 of the Political Constitution. By reason of the foregoing, it requests that the unconstitutionality of the reform approved by Law 9544 be declared, for having directly violated the Political Constitution by having been approved without consulting the CCSS, the Judicial Branch, or the State banks.

• 6)Defects of unconstitutionality due to violation of the legislative procedure: it states that, based on the consideration that the Regulations of the Legislative Assembly are a parameter of constitutionality and, furthermore, have constitutional rank, in accordance with the provisions of Article 121, subsection 22) of the Political Constitution and Article 73 of the Law of Constitutional Jurisdiction, non-compliance with them in the legislative processing of bills, agreements, and other matters within the competence of the legislative body translates into a gross violation of the block of constitutionality, and therefore, any product that did not comply with observance of the Regulations makes it unconstitutional and, therefore, absolutely null. It recalls that these Regulations (of the Legislative Assembly and its amendments) regulate the constitutional procedure for the approval of laws that are protected under the aegis of Articles 73, 105, 106, 119, 121, 123, 124, 129, 167, 188, 189, and 190 of the Political Constitution. It states that, based on the content and mandate of the Regulations of the Legislative Assembly, in force at the time of the legislative processing of what is now Law No. 9544, it is of the view that the deputies disregarded the obligations they had in the processing of that bill and, therefore, it considers that the following unconstitutionalities exist: a) violation of Article 121, subsection 22) of the Constitution and Articles 35, 153, 205, 208, and 208 bis of the Regulations of the Legislative Assembly: it points out that Article 121, subsection 22) of the Constitution protects the competence of the Legislative Assembly to regulate its own internal regime, and in the development of this self-regulatory power, “TITLE VI” regarding “AMENDMENTS TO THE REGULATIONS”, in its Article 207 provides:

“ARTICLE 207. Amendments to the Regulations.

Any total or partial amendment to these Regulations, as well as the interpretation of any of its provisions, requires, to be approved, two-thirds of the votes of the total membership of the Assembly.

The amendments shall be carried out through the procedure established in Article 124 of the Political Constitution.” It indicates that the violation or non-compliance with the legislative regulations causes the nullity for unconstitutionality of the law because it is a parameter of constitutionality in the terms established in Article 73 of the Law of Constitutional Jurisdiction, which provides literally:

“Article 73. An action of unconstitutionality shall be admissible:

• a)(…)
• c)When, in the formation of laws or legislative agreements, any substantive requirement or procedure provided for in the Constitution or, as the case may be, established in the Regulations of Order, Direction, and Internal Discipline of the Legislative Assembly is violated” (emphasis added by the petitioner).

It states that the alleged unconstitutionality occurred because Article 207 of the Legislative Regulations was directly violated, and this defect makes Law No. 9544 null, because, in ordinary plenary session No. 37 of June 30, 2016, a motion of order —via Article 208 bis— was considered with the intention of creating a special procedure for processing file 19,922, which was titled “Law to rationalize public spending”; a motion of order that was considered in the so-called “Second Part of the Session” of the Plenary, and furthermore, it is not possible to approve a special procedure through a motion of order.

He points out that, for a better understanding of the foregoing, it must be remembered that Article 207 of the cited regulation provides, as relevant:

" Procedure for parliamentary agreements Projects for the issuance of agreements concerning the internal regime of the Assembly, as well as draft agreements that must be adopted in exercise of the powers listed in subsections 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23), and 24) of Article 121 of the Political Constitution, must be submitted in writing, signed by the deputy or deputies who initiate or sponsor them; or by the relevant Minister when the project is an initiative of the Executive Branch. Likewise, they must be read by the Secretariat. The Assembly shall hear and resolve them without adhering to the procedures provided in the preceding article. (....)" (emphasis in the brief).

He points out that the preceding normative provision was interpreted by the Presidency of the Legislative Assembly through Agreement No. 4084, adopted in Session No. 24 on June 10, 1999, and published in La Gaceta No. 129 on July 5, 1999; on that occasion, it established a rigorous procedure for reforming or amending the Legislative Assembly Regulation, not only in protection of democratic principles but also of publicity, transparency, and the rights of parliamentary majorities and minorities, so that there would be the possibility to present motions that could be heard, after which they would be voted on and even appealed by all deputies who are members of the Legislative Assembly, without any discrimination or limitation. He indicates that reforms to the Legislative Regulation are carried out through "agreements," such that the special procedure of Article 208 bis cannot be approved by order motions because it is a reform to the Legislative Assembly Regulation. He recalls that the Legislative Assembly Regulation, in its Article 153, permits order motions "unless this Regulation expressly prohibits it," and that furthermore, in accordance with the provisions of Article 35 of the Legislative Regulation, a rigorous order is established in the "agenda" of the Legislative Plenary, which reserves, for the first part of the session among other matters, the internal regime of the Legislative Assembly, or, what is the same, the interna corporis of the Assembly, precisely in protection of the constitutional rule of publicity and the safeguarding of the rights of the legislators themselves, such as the right to vote, to discussion, to amendment, and to democratic participation in a broad, public, and transparent manner; and the second part was reserved—exclusively—for the discussion of the first and second debates of bills in progress. He reiterates that the hearing and processing of the motion via 208 bis of the Assembly Regulation in relation to File No. 19,922 should have been heard in the "First Part of the Session," this in protection of the constitutional rule of publicity and the safeguarding of legislators' rights, such as the right to vote, discussion, and democratic participation in a broad, public, and transparent manner; on the contrary, he considers that having done so in the "Second Part of the Session" violates Article 121, subsection 22) of the Constitution, given that Article 207 of the Legislative Regulation was directly violated. He adds that the Presidency of the Legislative Assembly, in concert with the Floor Leader proponents of the order motions, did not comply with the Legislative Regulation in order to approve the 208 bis motions processed on that occasion, further damaging the provisions of the Law of Constitutional Jurisdiction, which, in its Article 73 subsection c), conditions the constitutional legitimacy of laws and legislative agreements upon substantial compliance with what is provided "... in the Regulation of Order, Direction, and Internal Discipline of the Legislative Assembly." He argues that, in this way, in the case under study, what was violated was the "legislative procedure" by reason of the principle of parallelism of forms, given that, via 208 bis motion, with Project 19,922, the procedure and internal regulations established by the legislators themselves were flagrantly violated, precisely in protection of democratic principles, respect for minorities, publicity, transparency, in relation to the procedure of the legislative agreement that implies the approval of said special procedure. Based on the foregoing, he alleges a procedural defect that renders absolutely null everything that was done, for infringing the democratic principles of transparency, participation, parallelism of forms, legal certainty, and legitimate expectations, which must be respected—without any violation—by the Legislative Assembly, insofar as what was done by the legislators did not comply with the provisions of Articles 35, 205, and 207 of the Legislative Regulation, nor with the current interpretation of the Presidency; thus violating the democratic principles of transparency, participation, and respect for legislative majorities and legislative minorities under Article 121, subsection 22) of the Political Constitution. He states that, for the foregoing, he requests that the unconstitutionality of Law No. 9544 be declared because it was approved through a legislative procedure vitiated by unconstitutionality, in direct and constant contravention of the Legislative Assembly Regulation. He reiterates that the procedure given to the cited Law is null because the procedure provided by Article 208 bis was violated, and because, at the same time, it permitted the approval of a law that created an unequal, disproportionate, confiscatory retirement regime that nullifies the right to retirement, which is not even consistent with the minimum established in the Disability, Old-Age, and Death Regime of the Costa Rican Social Security Fund. b) Unconstitutionality by omission of the qualified vote required for the application of procedure 208 bis of the Legislative Regulation: he points out that the Legislative Assembly Regulation provides for various legislative procedures such as delegating legislative power to Full Legislative Commissions, the abbreviated procedure, and the special procedures of Article 208 bis; with regard to this last case, it concerns a specific regulation for each case, exceptional to the other cases, whose definition requires the consensus of the members, given that its establishment requires a qualified majority and stipulates that the design approved must respect democratic principles—of participation and publicity—and safeguard the rights of deputies, and its application is not possible for projects and matters that must be approved by a qualified majority—that is, a minimum of 38 votes; this being the spirit of the legislator when it approved numeral 208 bis of the Legislative Assembly Regulation. He adds that the Special Commission that heard the substantive motions presented to the project "Addition of an Article 208 bis to the Legislative Assembly Regulation, Legislative File No. 15,751," rendered a unanimous affirmative opinion, setting forth the reasons considered for endorsing the proposal before the Plenary, and clearly clarifying the issue of the voting majority as a determining element for the application of the special legislative procedure—via 208 bis motion—by providing clearly and transparently the following:

"For such reasons, it is considered appropriate to incorporate a new Article 208 bis into the Legislative Assembly Regulation, with which it is sought that, in those cases where the will of the majority of legislators converges, this majority decision shall be the one that marks the parameters to be followed in each case, while expressly excepting from this procedure bills that require 38 votes for their approval, as well as those related to the approval of administrative contracts, the sale of State assets or the opening of its monopolies, and international treaties and conventions" (emphasis in the brief).

He states that, based on the above discussions, the Legislative Assembly approved Agreement No. 6231-04-05 on March 8, 2005, whose final and currently valid text provided:

"SOLE ARTICLE: - An Article 208 bis is added to the Legislative Assembly Regulation, which shall read as follows:

Article 208 bis. - Special Procedures By means of an order motion, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures to process reforms to its Regulation and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions, regardless of the vote required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment" (emphasis in the brief).

He indicates that, from what was stated by the drafters of the bill to reform the Assembly Regulation and approved by the Legislative Plenary, it is clearly deduced that the only bills to which Article 208 bis could be applied—to establish an abbreviated and special procedure—are those that require only a simple majority, as well as the "approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions," regardless of the vote required in this matter. He states that, in light of the foregoing, the unconstitutionality alleged in relation to Law No. 9544 is because Article 208 bis of the Assembly Regulation was applied, which is provided only for matters whose required vote is a simple majority (half plus one of the legislators present), without noting that, in this matter, a vote adopted by a qualified majority (a minimum of 38 votes in favor out of the total elected legislators) was required, this because the Full Court issued a negative opinion on the substitute texts adopted by the Special Commission. He recalls that, in this sense, according to the mandate of numeral 167 of the Political Constitution, to depart from the Court's opinion, the legislators had to vote on this matter with a qualified majority of 38 votes. He argues that Article 239 of Law No. 9544 modified the internal structure of the Judicial Branch, as it literally provides:

"Article 239- The Administrative Board of the Judicial Branch Retirement and Pension Fund is created as an organ of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the powers and attributions granted to it by law.

The Board is responsible for:

• a)Administering the Pension and Retirement Fund for Employees of the Judicial Branch.
• b)Studying, hearing, and resolving the retirement and pension applications submitted to it.
• c)Collecting the contributions corresponding to the Fund and exercising the necessary collection actions.
• d)Addressing requests for re-entry into remunerative work by disabled retirees.
• e)Performing actuarial studies with the periodicity established in the regulations issued for this purpose by the National Council for the Supervision of the Financial System (CONASIF) and the Superintendence of Pensions (SUPEN).
• f)Investing the Fund's resources in accordance with the law and with the regulations issued for this purpose by the National Council for the Supervision of the Financial System and the Superintendence of Pensions.
• g)Complying with the legislation and regulations issued by both the National Council for the Supervision of the Financial System and the Superintendence of Pensions.
• h)Issuing rules for the appointment, suspension, removal, and sanctioning of personnel; as well as approving the annual operational plan, the operating budget, its modifications, and its annual liquidation.
• i)All other attributions assigned to it by law and its regulations.

Based on the results of the actuarial studies, and with authorization from the Superintendence of Pensions, the Administrative Board may modify the initial parameters established in this law regarding eligibility requirements, the benefit profile, as well as the contributions and deductions of judicial employees and the retirements and pensions provided for in the law, whenever this is necessary to guarantee the actuarial balance of the Regime.

The Board shall have instrumental legal personality to exercise the attributions assigned to it by law, as well as to exercise the judicial and extrajudicial representation of the Fund.

It shall be financed by a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions covered by the Fund. With these resources, the fees of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses shall be paid. Idle resources shall be invested in accordance with the provisions of Article 237 of this law" (emphasis in the brief).

He points out that, according to the content of this provision, that Administrative Board is inserted into the Judicial Branch as an organ "dependent" on the Full Court; additionally, the law endows it with sufficient legal personality for the administration of the fund, which empowers it to act on behalf of the Judicial Branch regarding the actions of the Retirement and Pension Fund of this Branch. He warns that the aforementioned modification does affect the competence and organization of the Judicial Branch, given that it creates an internal dependency, and moreover, that this Administrative Board was granted instrumental legal autonomy from the Court, which excludes it from matters pertaining to the actions of the hierarchical superior—in this case, the Court—under the terms of what is provided in numerals 102 and 83 of the General Law of Public Administration, to such an extent that it is endowed with judicial and extrajudicial representation to act on behalf of this Branch (the Judicial Branch); a legal phenomenon that had not occurred until this moment. He points out that constitutional numeral 167 provided for prior consultation with the Court—in a manner that is somehow binding—regarding the "discussion and approval of bills that refer to the organization or functioning of the Judicial Branch"; a criterion that can only be disregarded by the legislators through a qualified vote, that is, two-thirds of the total legislators, namely, a minimum of 38 votes. In this sense, he considers there is not the slightest doubt that the Constitutional Chamber has understood that consultation with the Judicial Branch is necessary under the terms of Article 167 of the Political Constitution, when its administrative organization is reformed, and not only matters concerning the jurisdictional function; and in that sense, he deems it pertinent to reference the considerations expressed by the Constitutional Chamber when it stated:

"... that a bill deals with such aspects when it contains in its articles explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional organs or those of an administrative nature attached to the Judicial Branch, or else creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions..." (see Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008) (emphasis in the brief).

He considers that constitutional numeral 167 and the rule provided in Article 208 bis of the Legislative Assembly Regulation were violated, given that a qualified majority was required to disregard the Court's opinion; a defect he considers insurmountable and which causes the nullity of the law due to unconstitutionality. c) Unconstitutionality by omission, by not publishing the text finally approved: he argues that neither the Special Commission responsible for processing and analyzing the bill in File No. 19,922, nor the Legislative Plenary, published the substitute texts in the manner provided for by the special procedure determined for this matter; thus, in his opinion, the unconstitutionality of the approved law is configured, due to a defect in the legislative procedure, under the terms established in Article 73 subsection c) of the Law of Constitutional Jurisdiction in relation to Article 121 subsection 22) of the Political Constitution. He points out that in Session No. 037, on June 30, 2016, the Legislative Plenary heard and approved the Order Motion according to which, in application of numeral 208 bis of the Legislative Assembly Regulation—with a favorable vote of 49 votes and 1 against—a special or fast-track procedure was approved for the processing, discussion, and report on the bill processed in File 19,922 "Law to Rationalize Public Spending"; likewise, the creation of a Special Commission was ordered to which this task was delegated, with it to be noted that in numeral 2 subsection h) of the indicated agreement, the obligation—for the indicated Commission—to publish any substitute text it approved during the discussion procedure was expressly established, in the following terms:

"h.- If during the hearing of the file in its procedure in commission, a motion for a substitute text is approved, or when the commission agrees on changes that substantially modify the bill, the Presidency of the Commission shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the hearing of the bill shall be suspended, also proceeding to make the corresponding consultations. If after eight business days no response is received to the mandatory consultations referred to in this subsection h), it shall be understood that the consulted body has no objection to the bill." (emphasis in the brief).

He adds that on the following September 5, 2016, the Special Commission for "Legislative File 20,035, Responsible for hearing and reporting on the bill: 'Law for Comprehensive Reform of the Various Pension Regimes and Related Norms, File No. 19,922'" was formed, and that, from the first session of this Special Commission—Session No. 1—on September 13, 2016, by unanimous vote, the base text for discussion was substituted—now tending solely toward the comprehensive modification of Title IX of the Organic Law of the Judicial Branch, No. 8, of November 29, 1937, and its reforms (first substitute text of Legislative File No. 19,922); a base text for discussion that was never published in La Gaceta despite having been substantially varied, which is a fact verifiable by simple comparison between the original base text—as defined by the Plenary—and the one substituted by the Special Commission. He reiterates that this text was not published, as ordered by the 208 bis motion that established its procedure, and this constitutes the first omission to publish in relation to the first substitute text approved in the Special Commission. He adds that, subsequently, in Ordinary Session No. 15 on Wednesday, March 29, 2017, the Special Commission approved the second substitute text; on this occasion, it was a proposal prepared by SUPEN, which was also not published under the terms required in subsection h) of Article 2 of the order motion for Article 208 bis of the Legislative Assembly Regulation, which established the rules for its procedure. He adds that, finally, in Ordinary Session No. 23, held on July 27, 2017, the Special Commission approved Order Motion No. 1-23 to dispense with the reading of the substitute text presented; immediately thereafter, it also approved Order Motion No. 2-23, which consisted of the approval of the substitute text, and it was immediately reported on affirmatively, with 8 votes and 1 against. He argues that, again, the publication of this third substitute text approved—and in this case also reported on—by the Commission was omitted. He warns that what was published were the reports of the Reporting Commission, not the substitute text, with which, in his opinion, what was provided by the Political Constitution and the Legislative Regulation regarding the procedure that File 19,922 should have followed was again violated, and he recalls that this defect could not be cured by the fact that the substitute text was published after being approved in the first debate, because the publication requirement must allow all Costa Ricans to know the bill beforehand, to express and opine, as is their constitutional right protected by Article 124 of the Constitution and Article 208 bis of the Legislative Assembly Regulation, in relation to Article 73 subsection c) of the Law of Constitutional Jurisdiction. On the matter, he mentions that in Judgment No. 2012-4621, the Constitutional Chamber indicated, as relevant:

"VII.- This Constitutional Court warns that when the Legislative Assembly, via an order motion under Article 208 bis of the Regulation, creates a special procedure, the application and observance thereof must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it will always be an exception. The duty of the various legislative bodies to adhere, zealously and scrupulously, to the specially designed procedure prevents any infringement of the principles of legal certainty (emphasized by this Court in Ruling No. 398-2005 of 12:10 p.m. on January 21, 2005) and democracy. Consequently, in the face of a special and rapid legislative procedure, the previously established deadlines, stages, and requirements must be subject to a restrictive and rigorous interpretation, with the margin of admissible flexibility compared to ordinary procedures, through extensive interpretations, decreasing notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by an aggravated majority.

VIII.- ESSENTIAL DEFECT IN THE PROCEDURE OF AN EVIDENT AND MANIFEST NATURE BY OMITTING THE PUBLICATION OF A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMISSION, WHICH, TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. On the other hand, the consulting deputies state that, despite what was stipulated in section 1.2.h., of the special legislative procedure, during its processing, the publication of a series of changes made to the bill was omitted, which diminished the total expectation of the school salary that is exempt from income tax for both public and private workers.

Consequently, from reading the content of the substantive motions approved in the special commission, this Constitutional Court unanimously finds that there was an essential defect in the legislative procedure of an evident and manifest nature that violated the principles of publicity and equality by omitting their publication, given that, together, they caused a substantial modification of the original text" (emphasis in the brief).

Consequently, he considers that numeral 121 subsection 22) and Article 124 of the Political Constitution and Article 208 bis of the Legislative Assembly were violated, which—in his opinion—renders Law No. 9544 absolutely null in its entirety, and, therefore, he requests that the unconstitutionality of the reform approved by Law 9544 be declared for not having published in the Official Gazette La Gaceta the text finally approved, nor any of the previous substitute texts, in application of the procedure approved regarding Article 208 bis of the Legislative Assembly Regulation; likewise, for having directly violated the Political Constitution by having been approved without a qualified majority of 38 votes because it concerned a reform to the Judicial Branch, under the terms of Article 167 of the Political Constitution.

• 7)Violation of the constitutional principle of reasonableness and proportionality: he considers there are several reasons why these principles have been violated and which, in his opinion, warrant declaring the challenged law unconstitutional. a) He argues that the pensions of judicial employees will be lower than the pensions under the IVM regime of the CCSS, due to excessive, arbitrary, and abusive burdens: he alleges the unconstitutionality of Law 9544 by its effects, in his opinion, under the terms provided by Article 3 in relation to Article 73 of the Law of Constitutional Jurisdiction, because the deductions approved by this law are entirely burdensome (unreasonable and confiscatory, as well as harmful to the principle of equality) for those who work in the Judicial Branch. He indicates that for a better understanding, an analysis must be made of the modifications to the substantial elements of the regime and, in that sense, he argues that with the reform introduced to the Retirement and Pension Regime of the Judicial Branch (RJPPJ) through Law No. 9544, a disproportion and, consequently, unequal and irrational treatment was produced against active employees, as well as against pensioners and retirees who contribute to said regime, compared to those who do so for the Disability, Old-Age, and Death Regime of the CCSS. He points out that this conclusion is reached after making a comparative analysis of the benefit profile for both regimes, and that, without a doubt, the Judicial Branch Regime now proves disproportionate and unreasonable in its effects, in relation to the very high burdens imposed on its contributors and "beneficiaries," which are far above those who contribute to the IVM of the CCSS, coupled with the fact that Judicial Branch employees are required to belong to and remain in a regime throughout their entire working life in that institution. He argues that, in the case of the Judicial Branch Regime, at the time of retirement or pension, the benefits obtained are far lower than those obtained under the IVM, asserting that this is so because 62% of the Judicial Branch workforce will receive an income even lower than if they had contributed to the IVM, and for the rest, even though they may nominally receive a higher pension or retirement under the Judicial Branch Regime, it is lower in percentage terms, a situation that is reiterated due to the very high and burdensome charges imposed in this regime compared to the IVM. He adds that, with the reform introduced through Law No. 9544, the retirement age was increased to 65 years of age, with a minimum of 35 years of service, and with a gross retirement amount equivalent to 82% of the last 240 salaries received; with these modifications, in principle, the requirements of the Judicial Branch Regime were made equivalent to those of the IVM of the Costa Rican Social Security Fund. He argues that it cannot be overlooked that in the former (Judicial Branch), the contribution amounts are four times higher than the IVM, and the benefits are much lower, citing what is established by Article 224 of Law 9544:

"Judicial employees with twenty or more years of service in the Judicial Branch may qualify for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (IPC), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years" (emphasis in the brief).

Meanwhile, he indicates that Article 5 of the Disability, Old-Age, and Death Insurance Regulation establishes that:

"The insured person who reaches 65 years of age is entitled to an old-age pension, provided they have contributed to this Insurance with at least 300 (three hundred) quotas" (emphasis in the brief).

He considers that, with crystal clarity, a first difference can be observed between both regimes, given that, when comparing the eligibility requirements and number of contributions, Judicial Branch employees are asked for two requirements to access an ordinary retirement:

• a)To reach 65 years of age (same requirement as in RIVM); b) But with a total of 420 contributions (35 years)?

Unlike those who contribute to the IVM, where only 300 contributions are required; that is, Judicial Branch employees are asked to contribute 40% more than employees under the IVM in order to access an ordinary retirement.

In addition to this, he mentions that, to calculate the monthly allowance in the Judicial Branch Regime, the average salary of the last 20 years is taken into account (the same requirement as in the IVM) and 82% is applied to that average, the result being the gross retirement amount, as established by Article 224 of Law 9544 itself; on the other hand, the IVM calculates the monthly allowance in accordance with the provisions of Article 5 of the aforementioned Disability, Old Age, and Death Insurance Regulation, in conjunction with Articles 24 and 25 of that same regulation, which establish:

"Article 24: The amount of the disability, old age, or death pension of an active worker comprises a basic amount (cuantía básica) as a percentage of the average salary or income indicated in the preceding article, for the first 20 (twenty) years of contributions (240 -two hundred forty- monthly installments contributed) or those that may be available in case of disability or death, provided the requirements of Articles 6 and 18 of this Regulation are met. To place the insured person in the level indicated in the following table, the average salary or income of the last sixty months of contributions, or those available in cases of disability and death, updated for inflation, will be taken:

Real Average Salary or Income Basic amount (Cuantía Básica) Less than two minimum salaries 52.5% From two to less than three minimum salaries 51.0% From three to less than four minimum salaries 49.4% From four to less than five minimum salaries 47.8% From five to less than six minimum salaries 46.2% From six to less than eight minimum salaries 44.6% From eight and more minimum salaries 43.0% In both old age and disability cases, an additional amount (cuantía adicional) equivalent to 0.0833% of the reference average salary or income is included for each month of contributions in excess of the first 240 months." Now then, he argues that, unlike the system chosen in Law number 9544, the IVM establishes a benefit for deferring the pension or retirement under the terms of numeral 25 of the Regulation, which represents an additional percentage in the pension amount, in the following terms:

"The insured person who meets the requirements to be entitled to receive an old-age pension shall have the right to an additional pension for deferring retirement (postergación del retiro), from the date on which they have met the legal and regulatory requirements. This additional pension shall consist of 0.1333% per month of the average salary calculated according to Article 23.

The amount of the additional pension for deferring retirement, added to the amount of the ordinary pension calculated according to Article 24 of this Regulation, may not exceed 125% of the indicated average salary or income." He affirms that, when comparing both calculation methods for the assignment of the monthly amount in each of the analyzed regimes, it is concluded that in the Judicial Branch Regime, the average of the last 240 contributions is taken and 82% is applied to determine the gross retirement allowance; whereas for the IVM, a basic amount (cuantía básica) ranging between 43% and 52.5% is taken into consideration, a percentage to which 0.0833% is added for each month of contributions from the 240th monthly contribution onwards, the latter as a seniority bonus (bonificación por antigüedad) for having contributed beyond the 240 minimum required installments, in addition to an additional amount for deferral (postergación) - since, in the case of a woman, if she had reached the retirement age of 63 years and 2 months, and in the case of a man, 63 years and 3 months. He affirms then that, in this way, if in the Judicial Branch a person meets the age requirement (65 years) and the years of service requirement (35 years), they will be entitled to an ordinary retirement obtained by applying 82% to the average of the last 240 salaries; on the other hand, under the same conditions, if a person who contributed to the IVM meets the age requirement (65 years) and has contributed for 35 years, they will be entitled to an ordinary retirement obtained by applying to the average of the last 240 salaries, a basic amount (cuantía básica) ranging between 43% and 52.5% plus 0.0833% for each additional month of contributions, after the 240 contributions, meaning they will be entitled to 14.994% as a seniority bonus for having contributed 180 additional installments, in addition to 2.9326% in the case of a woman and 2.7993% in the case of a man as a result of the recognition for deferral (postergación). He argues that the differences indicated are evidenced in the following table, which takes into consideration the Pension and Retirement Regime of the Judicial Branch, prior to the reform alleged here as unconstitutional, as well as with the reform and its comparison with the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (which under the terms of ruling number 846-92 of the Constitutional Chamber is a regime of minimum content of social security for workers, allowing the existence of other regimes in the country):

With previous regime (repealed by the 1993 reform) With Law 9544 regime (the new law challenged here) With CCSS Regime Fund is nourished by contributions:

Fund is nourished by contributions:

Fund is nourished by contributions:

- Active server, pensioner and/or retiree: from 9% to 15%, lastly set at 11% - Employer: as defined by the Court - State: 1.24% There is no extra contribution because the fund was administered by the Superior Council - Active server, pensioner and/or retiree: 13% - Employer: 14.36% - State: 1.24% A contribution of 5 colones per 1000 of salary to finance the expenses of the Administrative Board created for the administration of the Fund - Active server only: 3% - Employer: 5.08% - State: 1.24% There is no extra contribution because the fund is administered by the CCSS Conditions for retirement:

It presented 3 different frameworks:

Option A:

- 30 years of service - pension for men and women at age 62 - 100% calculation on the salary of the best 24 salaries, which, with the charges imposed on pensioners and retirees, becomes 84% (not counting the payment of income tax) Option B:

- with 60 years of age but not of service: the calculation was made with the years of service divided by 30, a percentage applied to the last 24 best salaries, and to this amount, the 11% contribution and 5% insurance deductions were applied, equaling 66%, and the payment of income tax.

Option C:

- with 30 years of service but not meeting the age (60 years): the calculation was made with the server's age divided by 60, a percentage applied to the last 24 best salaries; an amount to which the 11% contribution and 5% insurance deductions were also applied, equaling 66%, and the payment of income tax.

Conditions for retirement:

- 35 years of service in the institution - pension for men and women at age 65 - 82% of the average of the last 20 years of service (240 salaries) and that, with the charges imposed on pensioners and retirees, becomes 66.83% (not counting the payment of income tax) - Judicial servers contribute 40% more than the IVM of the CCSS - There is no recognition for seniority (antigüedad) or deferral (postergación) Conditions for retirement:

- years of service - 65 years of age - with 300 installments (cuotas) -82% of the average salary of 20 years of service (240 salaries without additional social charge), with a basic amount (cuantía básica) between 43% and 52.5% - There is recognition for seniority (bonuses) and for deferral, from the 240th contribution, with a total of 420 installments (35 years), which translates into 0.0833% for each additional month of contributions - woman: with 63 years 2 months - men: with 63 years 2 months Cap (Tope): regulates the minimum to receive - no pension may be less than one-third of the server's last salary, as indicated in the State expenditure budget, for the year in which the payment is made Cap (Tope): regulates the maximum to receive:

Up to 10 times the lowest salary in the Judicial Branch Cap (Tope):

¢1,548,189.00 colones Obligations of pensioners and retirees:

- contribution to the regime: 11% (with the possibility of reaching 15%) - payment of CCSS health insurance (5%) - payment of income tax Obligations of pensioners and retirees:

- contribution to the regime: 13% - payment of CCSS health insurance (5%) - payment of income tax - solidarity contribution (aporte solidario) upon exceeding the cap: from 35% to 55% Pensioners and retirees of the CCSS regime:

- they do not contribute to the regime - they do not pay health insurance - they do not pay income tax Proportional pension (Pensión proporcional):

- minimum 10 years of service for the institution, for a period of time: half of the time served Proportional pension (Pensión proporcional):

Option A:

- if meeting 35 years of service, but not 65 years of age, the minimum is set as: men at 62 years and women at 60 years - the pension to be received by women ranges between 61.68% and 65.79% depending on age; an amount from which contributions to the regime, insurance, administration cost financing, and income tax must be subtracted.

- the pension to be received by men ranges between 63.74% and 65.79% depending on age; an amount from which contributions to the regime, insurance, administration cost financing, and income tax must be subtracted.

Option B:

- with 65 years of age but not the 35 years of service to the institution, but a minimum of 20 years of service to the institution - does not allow transfer from the Judicial Branch regime to the CCSS IVM - allows transfer of regime, but at the time of pensioning or retiring, the excess amount is transferred to the ROP Proportional pension (Pensión proporcional):

Does not recognize seniority (antigüedad) Does not recognize seniority (antigüedad) Does recognize seniority (antigüedad) He indicates that, from the regulations governing the Judicial Branch Regime and the preceding table, in his opinion, the following premises are evident:

• a)that with the previous system, judicial servers did not receive 100% of the salary, as has been falsely disseminated in public opinion. Thus, from the calculation of the operation resulting from the average of the base salaries, just like now, significant deductions were made applying the principle of solidarity: 11% of the contribution to the regime, 5% for health insurance, not counting the corresponding income tax payment; a budget that was only given if the server met the prerequisites of age (62 years) and years of service for the institution (30 years) and, from there, the percentages decreased considerably in cases of meeting only one of the prerequisites (age or years of service).
• b)that with the reform of Law number 9544, at first glance it might seem that the 82% amount established as the basis for calculating the pension or retirement of judicial servers is higher than the amounts granted by the IVM; however, all Judicial Branch pensioners have 3 expenses that IVM pensioners do not have, and it is these that make the applied reform disproportionate compared to the IVM. These refer to: 1) once the person is retired, they must contribute 13% to the fund, as required by Article 236, paragraph 1) of Law number 9455, which states: "The Judicial Branch Retirement and Pension Fund shall have the following income, 1) A worker's contribution of 13% of the salaries earned by judicial servers, as well as of the retirements and pensions charged to the fund ..."; a contribution to which IVM pensioners are not obligated; 2) the contribution to the Health Regime administered by the CCSS (5%), which is not applied to IVM pensioners, since the IVM regulation, in its Article 3, establishes that: "The cost of insurance in the Health Insurance for pensioners of the Disability, Old Age, and Death Insurance shall be assumed in its entirety by the Disability, Old Age, and Death Pension Fund; the Board of Directors shall determine the percentage to apply based on actuarial recommendations"; 3) the collection of 5 per thousand for the expenses of the Administrative Board, in accordance with what is regulated by the reformed Article 239, which indicates: "...It shall be financed by an administrative expense commission resulting from deducting five per thousand from the salaries earned by judicial servers, as well as from the retirements and pensions charged to the Fund..."; and an additional expense 4) which is the calculation of income tax, this being the only budget that also applies, when applicable in relation to the amount, to IVM pensioners. He argues that, from the foregoing, it follows that the 82% assigned to a worker, without the penalty of Article 224 bis, would imply that the amount would be reduced by 0.41% (five per thousand of the 82% for financing expenses for the Administrative Board), 10.66% (13% contribution to the regime), and 4.1% (5% of the contribution to Sickness and Maternity Insurance), ending with a net amount of 66.83% at age 65 with 35 years of service, recalling that, for both regimes, depending on their pension amount, income tax would also apply. He points out that, in this way, with the execution of the regime under the prerequisites of 35 years of service and 65 years of age, the person would receive a net income of 66.83%, for which a contribution 40% higher than in the IVM Regime is imposed on them, and it cannot be forgotten that this constitutes a minimum guarantee of the right to retirement, under the terms indicated by the Constitutional Chamber. In his opinion, it is more than evident that this calculation does not pass the filter of reasonableness or equality if the indicated charges are compared against the minimum regime of the Costa Rican Social Security Fund, in which, despite requiring a 3% contribution from the server, the server receives a pension between 43% and 52.5% of the average of the last 240 salaries, with the possibility of receiving deferral bonuses for each month the pension and/or retirement is delayed, in addition to being a regime with no additional contribution. He argues that this comparison plainly demonstrates the unreasonableness and disproportionality of the Retirement and Pension Regime now imposed on judicial servers under the challenged law, and insists that they contribute 40% more than workers affiliated with the IVM of the Costa Rican Social Security Fund; however, with all the contributions and deductions imposed on Judicial Branch servers, they will receive less than those belonging to the IVM, and this without counting the contribution for the financing of the Fund's Administrative Board. He adds that, on the other hand, if a worker belonging to the IVM retires with 35 years of service, their amount increases for two reasons: the first is the seniority bonus (bonificación de antigüedad) (excess of the 240), which would reach 14.994% (180 contributions beyond the 240 multiplied by 0.0833%), and the other reason is the deferral bonus (bonificación por postergación), since in the case of a woman, she would have reached the retirement age of 63 years and 2 months, and a man at 63 years and 3 months; in other words, if the worker is a woman and deferred 22 months, and if a man, 21 months, they are credited—according to Article 25 of the IVM Regulation—0.1333% for each month worked, meaning their amount would increase by 2.9326% in the case of a woman and 2.7993% in the case of a man, so that, depending on their last salaries, their base amount (cuantía base) would vary between 43% and 52.5% plus the seniority and deferral bonuses, with the result that, under the same retirement conditions for a woman who would retire at age 65 with 35 years of service in the IVM, the amount would range between 60.9266% and 70.4266%; for a man, it would vary between 60.7933% and 70.2933%. As shown in the following table:

Amount (Cuantía) Judicial Branch Regime (RJPPJ) vs. CCSS Regime (RIVM) 65 years with 35 years of service Pension Estimate RJPPJ RIVM Base Amount (Cuantía Base) 82 % 43 % to 52.5% Less: Contribution to the Fund 10.66 % None Less: Administrative Expense 0.41 % None Less: Health Contribution 4.1 % None Plus: Seniority Bonus (Bonificación por antigüedad) None 14.994% Plus: Deferral Bonus (Bonificación por postergación) None 2.9325% if woman 2.7993% if man Total Amount (Cuantía) 66.83% 60.9266% to 70.4266% for woman 60.7933% to 70.2933% for man He states that the foregoing means that there are cases where the IVM pension is higher than that of the Judicial Branch Regime, since the IVM would grant a net, higher amount (cuantía)—according to the table in Article 24 of the IVM Regulation—and these would precisely be those individuals with 5 or fewer minimum salaries in the last 5 years of service, which, to date, according to information from the CCSS website, is ¢251,801.00 colones; that is, based on Article 24 of the IVM regulation, they would be those individuals with an average salary in the last 5 years below ¢1,259,005.00. He argues that, since it is such a long horizon (20 years), to reference the pension amount, this truly reflects the salaries of a worker's working life, ensuring the pension is commensurate with what was contributed; but in turn, this methodology provides a much lower average than the last salaries, since normally throughout a person's working life, they receive promotions or category advancements or other labor and salary changes, so it would be erroneous to reference the person's last salary without knowing their salary history. He argues that, despite this, what can be observed is that, currently and according to official data provided by the Department of Human Management of the Judicial Branch, about 62% of workers earn less than said salary (¢1,259,005.00), which suggests that a percentage of workers much higher than that percentage would have retirement amounts lower than those the IVM would grant, if one takes into account that the reference amount would be the average of the last 240 salaries and not the current salary. He explains that in the following comparative tables of the gross and net monthly allowance for both regimes, the decrease is clearly seen in the net allowances granted to contributors under the Judicial Branch Regime, even though they contribute 4 times more than those under the IVM Regime.

Table No. 1 Average Salary of ¢500,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢500,000 82% ¢410,000 ¢20,500 ¢55,350 ¢ 0 ¢334,150 IVM (woman) (man) ¢500,000 ¢500,000 70.4226% 70.2893% ¢352,133 ¢351,466 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢352,133 ¢351,466 Difference:

Woman Man - ¢17,983 - ¢17,316 The RIVM percentage is obtained as follows:

0. Woman: 52.5% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 52.5% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) Table No. 2 Average Salary of ¢750,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢750,000 82% ¢615,000 ¢30,750 ¢83,025 ¢ 0 ¢501,225 IVM (woman) (man) ¢750,000 ¢750,000 68.922% 68.789% ¢516,950 ¢515,950 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢516,950 ¢515,950 Difference:

Woman Man - ¢15,725 - ¢14,725 The RIVM percentage is obtained as follows:

0. Woman: 51% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 51% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) Table No. 3 Average Salary of ¢1,000,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢1,000,000 82% ¢820,000 ¢41,000 ¢110,700 ¢ 0 ¢668,300 IVM (woman) (man) ¢1,000,000 ¢1,000,000 67.3226% 67.1893% ¢673,266 ¢671,933 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢673,266 ¢671,266 Difference:

Woman Man - ¢4,966 - ¢3,633 The RIVM percentage is obtained as follows:

0. Woman: 49.4% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 49.4% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) Table No. 4 Average Salary of ¢1,500,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢1,500,000 82% ¢1,230,000 ¢61,500 ¢166,050 ¢ 44,650 ¢957,800 IVM (woman) (man) ¢1,500,000 ¢1,500,000 70.4226% 70.2893% ¢961,900 ¢959,900 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 16,290 ¢ 16,090 ¢945,610 ¢943,810 Difference:

Woman Man + ¢12,190 + ¢13,990 The RIVM percentage is obtained as follows:

0. Woman: 46.2% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 46.2% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) Table No. 5 Average Salary of ¢2,000,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢2,000,000 82% ¢1,640,000 ¢82,000 ¢221,400 ¢ 106,150 ¢1,230,450 IVM (woman) (man) ¢2,000,000 ¢2,000,000 60.9226% 60.7893% ¢1,218,532 ¢1,215,866 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 42,930 ¢ 42,530 ¢1,175,602 ¢1,173,336 Difference:

Woman Man + ¢54,848 + ¢57,114 The RIVM percentage is obtained as follows:

0. Woman: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) Table No. 6 Average Salary of ¢3,000,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢3,000,000 82% ¢2,460,000 ¢123,000 ¢332,100 ¢ 229,150 ¢1,775,750 IVM (woman) (man) ¢3,000,000 ¢3,000,000 60.9226% 60.7893% ¢1,548,189 ¢1,548,189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92,378 ¢ 92,378 ¢1,455,810 ¢1,455,810 Difference:

Woman Man + ¢329,940 + ¢329,940 1. The RIVM percentage is obtained as follows:

0. Woman: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) 2. With this average salary, the IVM Regime places a cap on the pension of ¢1,548,189.00, which is adjusted every semester.

Table No. 7 Average Salary of ¢4,000,000 colones 65 years of age and 35 years of service Regime Average last 240 salaries % Gross Allowance (Asignación bruta) Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net Allowance (Asignación Neta) Judicial Branch ¢4,000,000 82% ¢3,280,000 ¢164,000 ¢442,800 ¢ 352,150 ¢2,321,050 IVM (woman) (man) ¢4,000,000 ¢4,000,000 60.9226% 60.7893% ¢1,548,189 ¢1,548,189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92,378 ¢ 92,378 ¢1,455,810 ¢1,455,810 Difference:

Woman Man + ¢865,240 + ¢865,240 1. The RIVM percentage is obtained as follows:

0. Woman: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.9326% (deferral bonus - bonificación por postergación) 1. Man: 43% (basic amount - cuantía básica) + 14.99% (seniority bonus - bonificación por antigüedad) + 2.7993% (deferral bonus - bonificación por postergación) 2) With this average salary, the IVM Regime places a cap on the pension of ¢1,548,189.00, which is adjusted every semester.

He continues by indicating that, from the above comparison, the following can be concluded:

• a)it is evident that for those salaries whose monthly average over the last 20 years is less than 1.5 million colones, there is a substantial economic detriment for Judicial Branch employees, since contributors under this regime must, month after month, contribute 4 times more than IVM contributors, and the benefits granted under the Judicial Branch Regime are far inferior to those of the IVM Regime; b) the Judicial Branch Retirement and Pension Regime is truly more burdensome than the IVM, as the former has as reference persons who meet the requirements of 65 years of age and 35 years of service; however, it cannot be overlooked that in the institution there are many public servants who start working from a very young age, even at 18 years of age, so if this situation is compared with the benefits they would receive under the IVM, the differences would be even greater and, consequently, the detriment of belonging to the Judicial Branch Regime would also be greater since it does not contemplate—within its regulations—incentives for seniority (antigüedad) or deferral (postergación), just as the IVM does.

It indicates that, by way of example, it can be noted that if a person enters the Judicial Branch at age 18 and remains until age 65 (the date on which they can opt for retirement), they will have contributed a total of 47 years to the fund, but would have the same benefits as an official who begins working at age 30, meaning their contributions would serve to subsidize individuals who work for the institution for a shorter period and, consequently, contribute less to the fund. It admits that the Judicial Branch Retirement and Pension Regime required adjustments to guarantee current and future allocations, and for this reason, the judicial collective itself—represented by what was called the “Frente Gremial”—had been raising the importance of making such adjustments for several years, even proposing a balanced bill that would meet the requirements of all stakeholders; however, it believes that the approved regime does not address the variables and principles governing social security matters, as evidenced in the conclusions of the study conducted by the mathematical actuary Esteban Bermúdez, who concluded:

Conclusion 1. The Judicial Branch pension calculation formula does not include seniority recognitions such as bonus and deferral—which does not encourage the worker to work longer—generating an increase in fund liabilities and lower pension amounts; in addition, to achieve an ordinary pension right, the Judicial Branch Regime requires 40% more contributions than the IVM, that is, 10 more years of service.

Conclusion 2. Approximately 62% of Judicial Branch workers have salaries below ¢1,259,005.00, which would generate lower retirement rights for this population than those granted by the IVM, taking into account that this is the average salary for the last 240 months.

Conclusion 3. The Judicial Branch Regime Reform generates pensions similar to those of the IVM Regime; however, for the lowest salaries in the Judicial Branch, these pensions could be lower than those of the IVM, meaning the reform is neither attractive, nor competitive, nor profitable for these workers.

Conclusion 4. With the current pension granting structure, early retirement before age 62 is incentivized, which generates an increase in the actuarial liabilities of the Judicial Branch Retirement and Pension Fund.

Conclusion 5. A tripartite contribution of 28.6% for the Judicial Branch Regime and 13% for the worker are 281.5% and 338.5% higher, respectively, than their IVM counterparts, although for the majority of judicial workers, their pension will be lower than that granted by the CCSS; that is, there is no relationship, or rather, it is disproportionate between the amount contributed and the amount of pension to be granted. It states that, thus, the principles of solidarity, both intergenerational and intragenerational, are broken at the moment the worker can withdraw the funds, as if there were no support for the pensioned populations; furthermore, due to their parafiscal nature, contributions cannot be considered part of the worker's patrimony but rather of the collectivity, with a defined purpose, so the transfer of contributions to a private and individual fund is contrary to the purpose for which these contributions were created.

It indicates that expert Esteban Bermúdez Aguilar stated:

"To conclude this analysis, the combination of the low or similar benefits granted by the current reform together with the possibility of transferring IVM contributions with the respective privatization of the contribution difference upon being transferred to the ROP, opens a sinister possibility where workers, upon reaching the necessary contributions in the IVM, decide to resign from the Judicial Branch, work independently and contribute to the IVM for a determined period of time, request a transfer, and thus access a pension through the IVM, but with a higher ROP, generating a higher supplementary pension at the expense of weakening the RJPPJ fund." It adds that this professional warned that "Currently, the IVM does not require minimum membership periods in that regime to transfer contributions." It states that the Judicial Branch Retirement and Pension Regime defined in Law number 9544 rewards a relatively better pension for higher salaries and grants lower pensions to the lower salaries of the majority of Judicial Branch workers, thereby establishing a benefit much lower than if they had contributed to the Disability, Old Age, and Death Regime of the Caja Costarricense del Seguro Social—according to the inserted tables—for the lowest positions in the Judicial Branch, and maintains a condition of privilege for the institution's senior management positions. It argues that this breaks the social security principles of redistribution and solidarity of pensions, understood as the way in which a pension regime distributes the saved amounts among its members, in such a way that it is considered fair or convenient; consequently, it considers that in this specific case, an unequal and discriminatory regime has been created. b) Regarding the lack of proportionality in the strict sense of the regulations approved in Law 9544: it considers that another violation of the principles of reasonableness and proportionality occurs because, at the time the processing and discussion of the reforms to the Judicial Branch Retirement and Pension Regime began, none of the existing proposals within the legislative body had technical studies; rather, the execution of the contracting of actuarial studies to the Instituto de Investigaciones de Ciencias Económicas of the Universidad de Costa Rica was in progress. However, it believes it should be clarified that the actuarial work carried out by this Institute (the Instituto de Investigaciones de Ciencias Económicas of the Universidad de Costa Rica) did not study any of the substitute texts that the Special Commission initially adopted for discussion, nor the one finally voted on by the Legislative Plenary that is now Law number 9544. It warns that this actuarial study only addressed the previous factors of the economic, financial, and accounting sustainability of the fund, not the consequences that its approval would cause to the regime's employees and contributors, in total disregard of the constitutional principles and the Constitutional Law that govern this matter, namely, solidarity, fair redistribution, equality, meaning that, under this premise, it made its own reform proposal. It notes that, in ordinary session number 23, held on July 27, 2017, the Special Commission granted a hearing to the Instituto de Investigaciones de Ciencias Económicas in order to try to justify the last proposal (third substitute text) finally approved and reported by that Commission in that same session; in its response, the IICE warned of certain changes in the essential elements, once again, solely to address the sustainability of the regime, whereby only the supposed economic strength of the fund—which is not such—prevailed at the cost of the burdensome contributions of those enrolled in this regime. It warns that the complaints about the harmful effect the reform would have on 62% of the Judicial Branch officials were not addressed; a percentage that is conservative based on the pension calculation base in the challenged law, meaning it could be higher. It argues that these restrictions and limitations do not respond to the criteria of utility, least impact, and proportionality—in the strict sense—which are the criteria for evaluating and weighing the regime of limitation of fundamental rights, according to the development made by the Constitutional Chamber based on its rulings 3550-92, of November 24, 1992, and 4205-96, of August 20, 1996, which makes this reform—in its view—excessive and arbitrary, the most serious aspect being that this law does not fulfill the purpose that supposedly motivated its adoption, which was to modify the regime to make it sustainable, strong, and eliminate luxury pensions. It argues that, on the contrary, it affected the generality of the Judicial Branch community, who now see their salaries, pensions, and retirements substantially reduced; but the luxury pensions were maintained. It recalls that both the Constitutional Chamber and the International Labour Organization hold the view that, to modify the pension system, technical criteria must be available; notwithstanding the foregoing, it affirms that articles 224 and 224 bis of the challenged reform do not have such criteria for increasing the pension calculation limit from 10 to 20 years. It warns that, on this point, the Constitutional Chamber has annulled laws for lacking technical criteria: ruling number 2011-6805, of May 27, 2011, in which subsection k) of article 131 of the Ley de Tránsito por Vías Públicas Terrestres was annulled; ruling number 2011-13393, of October 5, 2011, in which subsection ñ) of article 132 of the Ley de Tránsito por Vías Públicas Terrestres was annulled; and ruling number 2011-13436 of October 5, 2011, in which article 3.7 of Decreto Ejecutivo 35748-MP-MINAET-MIVAH was annulled. It states that the Constitutional Chamber has declared that laws can be annulled if they suffer from this defect of irrationality and disproportion between means and ends. It points out that the criteria deduced from judicial cases for declaring a law unconstitutional are the following:

• a)the regulation does not satisfy an imperative public interest; b) from several valid options, the one that least restricts the regulated right must be selected; c) the restriction must be proportional to the end that motivates it and must be limited to fulfilling that end (proportionality of the regulation); d) the restriction must be exceptional because it is motivated by a social imperative.

It states that respect for these criteria allows for the subsequent assessment of the constitutionality of regulatory norms, since the limitation imposed by law will be the best alternative to others that are more burdensome for citizens' rights. It points out that in ruling number 08858-98, the Constitutional Chamber developed these concepts regarding norms of a general nature, in the following terms:

"Thus, an act limiting rights is reasonable when it meets a triple condition: [when] it is necessary, suitable, and proportional. The necessity of a measure directly refers to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a specific group—through the adoption of a differentiating measure. That is, that if said action is not taken, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, on its part, involves a judgment regarding whether the type of restriction to be adopted does or does not fulfill the purpose of satisfying the detected need. The suitability of the measure would indicate that other mechanisms may exist that better solve the existing need, some of which could fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, such that the limitation is not of a markedly greater magnitude than the benefit sought to be obtained for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second starts from a quantitative comparison of the two objects analyzed" (the highlights are from the brief).

It states that the Constitutional Chamber has defined these concepts of rationality and proportionality in a broad manner, referring to possible legislative excesses in the regulation of freedoms, and, therefore, it believes that the reform does not meet these criteria of reasonableness and proportionality, because it created a lower pension for 62% of Judicial Branch officials, without a technical criterion to justify it and in total contravention of the constitutional principles that govern the right to a pension. It concludes the brief requesting that the unconstitutionality of the reform approved by Law 9544 be declared due to its effects (art. 3 of the LJC); because the pensions of judicial employees will be lower than the pensions of the IVM regime of the CCSS, due to the effect of excessive, arbitrary, and abusive burdens; likewise, due to a lack of proportionality in the strict sense, since the challenged law is openly disproportionate, confiscatory, and unequal, by establishing a regime that, for the majority of the Judicial Branch community (62%), is inferior to the minimum of the IVM regime of the Caja Costarricense del Seguro Social, and yet the burdens imposed are excessive, both on active employees and on pensioners and/or retirees, up to four times more. As general claims of this unconstitutionality action, it proposes:

• 1)Based on the foregoing and according to the provisions of the cited Conventions and the invoked constitutional jurisprudence, it requests that an acquired right and belonging to the regime upon which it had the expectation of retirement be declared.
• 2)It requests the Constitutional Chamber to carry out an interpretation in accordance with the Constitutional Block, in the sense that Transitory II of Law number 9544 is also applicable to Judicial Branch officials with 20 or more years of service, because it cannot be applied to their detriment and, at all times, their good faith acquired rights must be respected.
• 3)It requests that the unconstitutionality, due to omission, of article 224 of the Organic Law of the Judicial Branch, reformed by Law number 9544, be declared, for requiring the same age from male and female judicial employees to access the ordinary pension, establishing for both the attained age of 65 years.
• 4)It requests that the unconstitutionality of the transitory regulations for the effectiveness of the previous regime be declared, as it is discriminatory by not providing for progressivity in its application.
• 5)It requests that the unconstitutionality of the reform approved by Law 9544 be declared for having directly violated the Political Constitution by having been approved without consulting the CCSS, the Judicial Branch, or the state banks.
• 6)It requests that the unconstitutionality of the reform approved by Law 9544 be declared, for not having published the finally approved text, nor any of the previous substitute texts, in the Official Gazette La Gaceta, in application of the approved procedure of article 208-bis of the Regulations of the Legislative Assembly; likewise, for having directly violated the Political Constitution by having been approved without a qualified majority of 38 votes even though it was a reform to the Judicial Branch, article 167 of the Political Constitution.
• 7)It requests that the unconstitutionality of the reform approved by Law 9544 be declared due to its effects (art. 3 of the LJC), and because the pensions of judicial employees will be lower than the pensions of the IVM regime of the CCSS, due to the effect of excessive, arbitrary, and abusive burdens; likewise, it reiterates due to a lack of proportionality in the strict sense, because it is openly disproportionate, confiscatory, and unequal, by establishing a regime that, for the majority of the Judicial Branch community (62%), is inferior to the minimum of the IVM regime of the Caja Costarricense del Seguro Social, and yet the burdens imposed are excessive, both on active employees and on pensioners and/or retirees, up to four times more.

144.- On February 6, 2019, the Proprietary Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, as well as the Substitute Magistrates Jorge Araya García, Marta Esquivel Rodríguez, and Mauricio Chacón Jiménez, filed a recusal (inhibitoria) considering that they have a direct interest in the outcome of this unconstitutionality action (in identical terms to how they did so in the main case file 18-007819-0007-CO).

145.- In a resolution of the Presidency of the Constitutional Chamber—Magistrate José Paulino Hernández—of 9 hours 05 minutes on February 11, 2019, the Proprietary Magistrates Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, Araya García, Esquivel Rodríguez, and Chacón Jiménez were removed from hearing this matter, and it was ordered that the pertinent information be communicated to the Presidency of the Supreme Court of Justice so that it proceeds to their substitution according to Article 6 of the Law of Constitutional Jurisdiction.

146.- By means of official communication added to the electronic case file on February 19, 2019, the Presidency of the Supreme Court of Justice sent the result of the draw #6852 conducted for the substitution of Magistrates Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Magistrate Nancy Hernández López, and Substitute Magistrates Jorge Araya García, Mauricio Chacón Jiménez, as well as Marta Esquivel Rodríguez, for having recused themselves from hearing this unconstitutionality action. It is reported that the selected Substitute Magistrates are: Anamari Garro Vargas, Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Ileana Sánchez Navarro, Alicia Salas Torres, Ana María Picado Brenes, and Rónald Salazar Murillo.

147.- On February 19, 2019, the Substitute Magistrates Rónald Salazar Murillo, Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas; on the following 20th, Substitute Magistrates Alicia Salas Torres and Ana María Picado; and on the subsequent 22nd, Substitute Magistrate José Paulino Hernández, filed a recusal (inhibitoria) in this case file in identical terms to how they did so in the main case file 18-007819-0007-CO.

148.- In a resolution of 10 hours 45 minutes on February 22, 2019, the Presidency of the Constitutional Chamber—Magistrate Delgado Faith—ordered the removal from hearing this process of Substitute Magistrates Rónald Salazar Murillo, Ileana Sánchez Navarro, Lucila Monge Pizarro, Anamari Garro Vargas, Alicia Salas Torres, and Ana María Picado, as well as to communicate the pertinent information to the Presidency of the Supreme Court of Justice so that it proceeds to their substitution according to the provisions of Article 6 of the Law of Constitutional Jurisdiction.

149.- By means of official communication added to the electronic case file on February 27, 2019, the Presidency of the Supreme Court of Justice sent the result of the draw #6880 conducted for the substitution of Substitute Magistrates Ileana Sánchez Navarro, Ana María Picado Brenes, Lucila Monge Pizarro, Alicia Salas Torres, José Paulino Hernández Gutiérrez, Rónald Salazar Murillo, and Anamari Garro Vargas, stating that because the Chamber had originally requested 7 substitutes and only 2 are available, the draw was conducted with the available substitutes, resulting in the selection of Hubert Fernández Argüello and Alejandro Delgado Faith.

150.- On February 27, 2019, Substitute Magistrate Hubert Fernández Argüello filed a recusal (inhibitoria) from hearing this unconstitutionality action in identical terms to how he did so in the main case file 18-007819-0007-CO.

151.- The Presidency of the Constitutional Chamber, exercised by Magistrate Delgado Faith, in a resolution of 12 hours 05 minutes on March 5, 2019, removed Substitute Magistrate Hubert Fernández Argüello from hearing this case file and ordered the case file be sent to the Presidency of the Supreme Court of Justice for the appropriate action.

152.- By means of a resolution of the Presidency of the Constitutional Chamber—Magistrate Delgado Faith—of 12 hours 35 minutes on March 5, 2019, and based on what was resolved by the President of the Constitutional Chamber—Magistrate Castillo Víquez—at 14 hours 40 minutes on August 3, 2018, issued in the main case file number 18-007819-0007-CO, Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, and Jorge Araya García were declared qualified to hear this unconstitutionality action, ordering the processing of the case file to continue.

153.- On March 8, 2019, Magistrate Fernando Cruz Castro appears to state that, in this case file and in all others that have been accumulated to the main case file number 18-007819-0007-CO, he, together with other Magistrates, filed a recusal request because the reform to the Law of the Judicial Branch Retirement and Pension Regime is challenged. He alleges that, although said recusal was initially accepted, subsequently, all Magistrates were qualified based on the principle of inalienability of jurisdiction. He argues that since August 2018, he has held the position of President of the Supreme Court of Justice and for this reason, he believes he has a new reason to request the recusal. He adds that, in other proceedings before this Chamber where he has been the responding party or intervener in his capacity as President of the Supreme Court of Justice, he has requested the recusal as he has considered it improper for him to act as a judge in a matter where he has been called as a party in said capacity, believing that, in the case files mentioned supra, he is faced with the same situation because he cannot participate in the voting on those actions since, as President of the Court, he will be called to report on the substance because the regulations are related to the Judicial Branch. He alleges that, for this reason, he presents this recusal and requests that the proceedings be sent to the Presidency of the Constitutional Chamber for it to resolve accordingly, in conformity with the provisions of Article 6 of the Law of Constitutional Jurisdiction.

154.- By means of a resolution of 14 hours 48 minutes on March 8, 2019, the President of the Constitutional Chamber—Magistrate Fernando Castillo—and based on what was resolved at 14 hours 40 minutes on August 3, 2018, issued in the main case file number 18-007819-0007-CO, Magistrate Fernando Cruz Castro was removed from hearing this matter and Substitute Magistrate Marta Esquivel Rodríguez was declared qualified to hear this matter, ordering the processing of the case file to continue.

155.- By resolution of 13 hours 05 minutes on February 22, 2019, and because it was so ordered in ruling number 2019-003006 of 9 hours 15 minutes on February 22, 2019, this action is admitted and a hearing is granted to the Procurador General de la República, the President of the Legislative Assembly, and the President of the Supreme Court of Justice.

156.- On March 12, 2019, Patricia Solano Castro appears in her capacity as Vice President of the Judicial Branch and of the Superior Council, to submit the report requested in this unconstitutionality action.

• I)Background: She points out that the Legislative Assembly, through official communication number CE208-BID-02-2016 of September 14, 2016, received on the following 19th, consulted on the text of bill number 19,922 called “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa.” She argues that this bill was forwarded for study by Magistrates Orlando Aguirre and Luis Guillermo Rivas, with the report being heard in full court session number 29-16, held on September 26, 2016, Article XXVIII, communicated to the Legislative Assembly via official communication number SP-288-16 from the General Secretariat of the Court on September 28, 2016, with the express indication that the consulted bill impacts the organization and functioning of the Judicial Branch. She adds that subsequently, the Legislative Assembly, in official communication number AL-20035-OFI-0029-2017 of April 17, 2017, received on the same day, consulted on the substitute text of the cited bill, approved in ordinary session number 15 on March 29, 2017. She states that on that occasion, the study corresponded to former Magistrate Carlos Chinchilla Sandí and the report was heard in full court session number 9-17, held on April 24, 2017, Article XXIX, in which it was agreed to inform the Special Commission of Case File No. 19.922 of the Legislative Assembly of its content, with the express indication that the Court issued a negative opinion and opposes the consulted bill, because it impacts the organization and functioning of the Judicial Branch (the emphasis is from the official communication). She argues that the agreement was communicated to the Legislative Assembly via official communication from the General Secretariat of the Court, number SP-118-17 of April 26, 2017. As the last background item, she indicates that through official communication number AL-20035-OFI-0043-2017 of July 31, 2017, received on the same day, the Legislative Power sent a consultation on the Affirmative Majority Ruling of July 27, 2017, regarding the text of the cited bill. She points out that the report was heard in full court session number 26-17, held on August 7, 2017, Article XXX, and the agreement was communicated via official communication from the General Secretariat of the Supreme Court of Justice number SP-253-17 of August 10, 2017, and on that occasion, the express indication was also made to the Legislative Assembly in the following terms: “The Court issues a negative opinion and opposes the consulted bill, as it impacts the organization, structure, and functioning of the Judicial Branch” (the emphasis is from the report).
• II)On the substance of the action: a) regarding Article 224 of Law number 9544 that reforms the Judicial Branch Retirement and Pension Regime, she argues that the text of the current norm did not differentiate by gender, as other pension regimes do; an omission widely analyzed in the discussion of the third consultation, and in which a special call was made to observe the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, which in its provision 11 subsection 1) paragraph e) indicates that States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure the right to social security, particularly in cases of retirement for disability or old age, and to what is established in Article 71 of the Political Constitution regarding the special protection of women in their work. On the other hand, in relation to the established percentage, she indicates that it is necessary to consider that judicial employees, at the time of opting for their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund with a worker contribution of 13% according to Article 236 of the challenged regulations, unlike other retirement and pension regimes, which is why their retirement amount would be diminished, and other deductions must also be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund, created according to Article 239 of the cited regulations, which establishes a commission for administrative expenses of 5 per 1000 of the salaries earned by judicial employees, as well as from retirements and pensions charged to the fund, which could be seen as confiscatory (article 40 of the Constitution) or violative of the principle of non-retroactivity of the law (article 34 of the Constitution), as there are acquired and consolidated patrimonial rights under a previous law. She argues that, in relation to the foregoing, the report approved by the Full Court in session number 26-17 of August 7, 2017, Article XXX, stated the following:

“It is reiterated, this Court has been and will be respectful of the technical studies issued to ensure the sustainability of the Fund; however, it cannot be overlooked that we are in the presence of fundamental rights, and that is why the reform also deserves a study adhering to actuarial technique but also with a human rights perspective.

In this sense, it is worth noting that ILO Recommendation No. 43 'Recommendation concerning Invalidity, Old-Age and Survivors' Insurance,' in point 13) subsections a) and b), states that:

'(a) To guarantee workers an old age without deprivation, the pension should cover essential needs. It is therefore advisable that the pension guaranteed to any pensioner who has completed a determined qualifying period be fixed with due regard to the cost of living.

(b) In contributory schemes with contributions proportional to salaries, insured persons who have had the contributions corresponding to the average duration of active working life credited to their account should obtain a pension corresponding to their social situation during the period of active employment.'” To this end, the pension guaranteed to insured persons who have accrued thirty effective years of contributions should not be less than half of the insured salary from entry into the insurance or during a determined period immediately preceding the settlement of the pension (Emphasis added).

It is clear, therefore, that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that the retirement and pension must satisfy the essential needs of persons in their old age, and therefore the amount must be set taking into account the "cost of living and the social situation during the period of professional activity." That is, the standard of living that the worker enjoyed during their active professional life must be respected.

The need for reforms to the Pension and Retirement Fund to ensure its sustainability is not unknown, but these must be clothed in suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 at 9:30 a.m. on January 27, 2010, when declaring the cap on pensions established in article 234 of the Organic Law of the Judicial Branch unconstitutional. This is consistent with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case "Admissibility and Merits of the National Association of Former Employees of the Peruvian Social Security Institute et al. v. Peru" (1), it outlined that the aforementioned Article 26 does not exclude the possibility of a State imposing certain restrictions on the exercise of the rights incorporated in that provision, provided that a joint analysis has been made of the individual impact on the right (in this case retirement and pension) in relation to the collective implications of the measure." b) States that, on the other hand, regarding article 225 of the challenged regulation, a retirement cap is established that may not exceed 10 times nor be less than one-third of the base salary of the lowest-paid position in the Judicial Branch, such that the provision did not foresee that the imposed cap should be applied after the deductions required by law and the contributions that retired persons continue to make for the sustainability of the Judicial Branch retirement fund, including contributions and the commission for administrative expenses. Argues that, as with the previous point, this was discussed by the Full Court in the consultation on bill number 19.922, and regarding that article, the following was indicated:

"The text under study contemplates in its article 225 that no retirement may exceed 10 times the base salary of the lowest-paid position in the Judicial Branch, nor be less than one-third of that same reference, which is around the amount of four million thirty thousand colones (¢4,030,000); however, it is not indicated that this amount will be the imposed cap, after the deductions required by law, including income tax, are made. If this is not the case, and if legal deductions are applied to the amount of four million, in accordance with Convention No. 102 of the ILO, it could be considered confiscatory, since in addition to the cap imposed, the deductions of eleven percent (11%) of the monthly contribution made by both active and retired taxpayers, five percent (5%) for Maternity and Sickness Insurance, and between ten and fifteen percent (10 and 15%) for Income Tax would be applied, which in the most fatal scenario could range from thirty-one percent (31%) to thirty-five percent (35%) of the total of the eighty-five percent (85%) corresponding to the ordinary retirement, which would result in a reduction of approximately half of the retirement benefit, a procedure contrary to the conventional provisions that permit a reduction of said benefit.

"See that both the cited Convention and Recommendation No. 43 of the International Labour Organization are consistent in establishing that retirement or pension must satisfy the essential needs of persons in their old age, and therefore the amount must be set taking into account the 'cost of living and the social situation during the period of professional activity.' That is, the standard of living that the worker enjoyed during their active professional life must be respected.

"It is estimated that this regulatory framework should be taken into account when imposing caps and tax burdens on retirement benefits, in order to avoid future unconstitutionalities that would undermine the Law that may eventually be enacted and thereby jeopardize the sustainability of the Pension and Retirement Fund of the Judicial Branch.

"The Constitutional Chamber indicated in vote No. 2010-1625 at 9:30 a.m. on January 27, 2010, when declaring the cap on pensions established in article 234 of the Organic Law of the Judicial Branch unconstitutional, that if a cap on a retirement or pension is to be set, it must be based on technical and actuarial criteria. In this regard, that Constitutional Court noted:

"'In the present case, the legislator opted to establish a cap as a social security measure, which may be considered valid and necessary, according to what has already been stated, to guarantee the funds of the pension system based on the principle of social solidarity. However, that same decision lacks the requirements of suitability and proportionality in the strict sense. On the one hand, while the subordinate or independent worker contributes a certain percentage throughout their working life that affects their entire income, there is no explanation whatsoever justifying why that particular cap, and not a different one, or that one in priority over others, should be chosen. That justification is even more necessary and indispensable when there are persons who, having contributed double, triple, quadruple, or even more times than others, all end up having the same maximum retirement amount imposed on them. In this sense, it is noted that when the legislator set the income of a Deputy as the parameter for the cap for Judicial Branch employees, the reasons for choosing it were not indicated, an explanation that should have been based on technical and especially actuarial criteria justifying the decision adopted and not solely on the need to impose a limit.' (the emphasis is from the report).

Reports that, it was concluded on that article, that merely imposing a retirement cap, solely with the intention of setting a limit on the highest retirements, is not sufficient; rather, it must be suitable and proportional and must be supported by a technical and legal explanation that justifies the reduction of the benefit; this had to be sufficient for retirements arising from contributions that are three or four times greater than those of the rest of the contributors; otherwise, the cap would again become unconstitutional and there is a risk that such budget would again be undermined. Adds that, to avoid this, the report proposed the addition of the phrase "after deductions required by law and income tax" in order to comply with the conventional regulations and applicable constitutional analysis, but this was omitted from Law 9544. Argues that for better assessment, it is relevant to cite an excerpt from the report indicating, insofar as relevant:

"'(…) In relation to this solidarity tax, it is estimated that, being a tax burden, the constitutional principles governing tax matters must be respected, such as the principle of legal reserve, proportionality, economic capacity, non-confiscation, among others. Among these, it is of special interest to highlight the principle of non-confiscation in relation to the right to property and what was stated by the Constitutional Chamber in ruling 2657-2001 at three fifteen p.m. on April fourth, two thousand one, which indicates that:

"'IV. On the argument that the tax is confiscatory: The State may take a proportional part of the income generated by the individual to cover its expenses, but always provided that it does not go so far as to annul property as such, as would be the case if the tax were to completely absorb the income. If the Constitution protects the right of property to integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not denature other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation; therefore, a taxation measure going beyond what is reasonable and proportionate cannot be permitted (…) a levy that exceeds the economic or financial capacity of the taxpayer is considered confiscatory, or else, if the tax absorbs a substantial part of the taxed operation (…) (Highlighted from the original).

"'Therefore, special care must be taken with the reductions imposed so that they do not prove confiscatory, since, as indicated, in addition to this solidarity contribution, one must not lose sight of the fact that as explained, an ordinary retirement set at eighty-five percent (85%), which bears the mandatory charges of fifteen percent (15%) contribution to the Fund, five percent (5%) to the CCSS Regime, and fifteen percent (15%) for income tax, already suffers a reduction of fifty percent (50%) of the salary that the retired person received when they were actively employed (this without considering that the calculation is not being made based on the current salary, but on a pro-rata basis of the last twenty years of work).

"'A situation that is also not foreign to those benefits already granted and enjoyed, since they currently bear levies from thirty-one (31) to thirty-five percent (35%) of the total right, which added to the lowest percentage of the solidarity quota –twenty-five percent (25%)–, yields a total of sixty percent (60%), which becomes confiscatory and disproportionate, consequently, contrary to international conventions and unconstitutional (…)' (the emphasis is from the report).

• c)Continues stating that with the entry into force of article 227 of Law 9544, a transfer of powers is established to the body responsible for conducting the medical assessments of persons who need to avail themselves of a permanent disability retirement (jubilación por incapacidad permanente), given that these assessments, under the previous regulation, were carried out by the Forensic Medical Service (Medicatura Forense) and now, with the entry into force of Law 9544, have passed to the Disability Status Qualification Commission of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social); a situation that has generated a backlog in the assessments pending before the Judicial Branch for judicial employees who are disabled, without the legislator, at the time the bill was being discussed, having foreseen consulting the Costa Rican Social Security Fund about the operational capacity of the cited commission to assume that new responsibility. Reports that this has caused that in the Judicial Branch, there are currently judicial employees with prolonged medical disabilities awaiting an assessment by the Qualification Commission of the Fund, without their situation yet being resolved due to the long waiting lists that this commission has. Points out that the Full Court, in session number 26-17 held on August 7, 2017, article XXX, had opposed this change and in the approved report, the following was indicated:

"'Regarding this regulation, a reference to a body of a decentralized entity such as the Costa Rican Social Security Fund (CCSS) is considered unnecessary, since the institution has a specialized technical organism for this analysis, so it should refer to an internal instance and not to the Disability Status Qualification Commission of the Costa Rican Social Security Fund.

"'Note that the Judicial Branch Regime is also of the so-called "First Pillar" and substitutes that of the CCSS, so it is not correct from an organic standpoint to delegate that function to an autonomous and decentralized institution.

"'In any case, the Forensic Medical Council is the last instance for reviewing the actions of the CCSS's qualifying medical body, within judicial social security processes, therefore, it is considered for the reasons given that the article in question should be changed' (the emphasis is from the report).

• d)In relation to article 236 defining the income of the Pension and Retirement Fund of the Judicial Branch, states that it is important to reiterate that the contribution was increased to 13%, maintaining that percentage for the contribution that pensioned and retired persons must make, unlike other retirement regimes where once retired or pensioned, the person does not have to continue contributing. Argues that this condition must be assessed comprehensively with the rest of the articles mentioned in the previous points and where amounts are also established that reduce the percentage approved for retirement due to deductions for contributions, special, solidarity, and redistributive contributions that were established in the challenged norm, in addition to the income tax. Warns that the Pension and Retirement Fund of the Judicial Branch has the same characteristics as a social security fund (articles 73 and 177 of the Constitution) and its nature has been analyzed by the Chamber in Vote number 2014-20474 at 3:45 p.m. on December 18, 2014, in the following manner:

"'III. On the nature of the Pension and Retirement Fund of the Judicial Branch.- For this Court, the retirement and pension system of the Judicial Branch consists of a "pay-as-you-go system (régimen de reparto)", in which both contributions from workers and former employees, as well as public funds, contribute, given the contributions of the Judicial Branch as employer, and the State itself. Ergo, the nature of this social security regime corresponds to the field, on the one hand, of social security law, and, on the other, to public law by virtue of the statutory nature of the relationship of the employees with the State. Thus, it is evident that the system in question has exactly the same characteristics as a social security fund, as can be deduced from the reading of numeral 73 of the Political Constitution (…)

"'In summary, the Pension and Retirement Fund of the Judicial Branch is constituted for the benefit of judicial workers, which is financially sustained thanks to a tripartite mandatory contribution system from the State, the Judicial Branch as employer, together with judicial employees and retirees, and whose purpose is to protect the latter from contingencies such as old age, disability, or death. The necessary elements are present to consider the Pension and Retirement Fund of the Judicial Branch as a pay-as-you-go social security system, which inevitably implies that it must be governed in accordance with the provisions of the Political Constitution and the principles that inform social security regimes (judgment number 2011-10513, at three hours one minute p.m. on August ten, two thousand eleven. In the same sense, judgment number 2012-004108, at two thirty p.m. on March twenty-seven, two thousand twelve).'" e) Article 236 bis establishes the "Special, Solidarity, and Redistributive Contribution of Pensioners and Retirees," the Court, initially, in session number 29-16 held on September 26, 2016, article XXVIII, having opposed the form in which that contribution was presented in the first text consulted, indicating that:

"'The Court opposes the drafting of this norm. It must be emphasized that this contribution, currently called the solidarity contribution, is already implemented in the current regime: the retirees and pensioners of the Judicial Branch continue contributing to the regime at the same percentage as working persons, currently 11%.

"'Any additional solidarity contribution must be based on this percentage already contributed. It must also be considered that the retirees and pensioners of the Judicial Branch regime, in addition to this mandatory contribution to the Pension and Retirement Fund of 11%, must contribute to the Sickness and Maternity Insurance of the CCSS, 5%, and also pay income tax, whose brackets reach between 10% and 15%, according to the limits defined by the Ministry of Finance.

"'It is noted that those who belong to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not continue contributing to the regime nor pay the corresponding Sickness and Maternity Insurance (sic).

"'It is for this reason that this solidarity contribution cannot exceed 20%, considering the 11% already contributed, as otherwise, the totality of the deductions would be confiscatory and would violate the international and constitutional regulations established in this matter' (the emphasis is from the report).

Adds that, likewise, in a second consultation in session number 26-17 of August 7, 2017, article XXX, it was reiterated that regarding the solidarity tax, it was estimated that, being a tax burden, the constitutional principles governing tax matters had to be respected, such as the principle of legal reserve, proportionality, economic capacity, non-confiscation, among others. Adds that it was also indicated that, among all these principles, it is of special interest to highlight the principle of non-confiscation in relation to the right to property and what was stated by the Constitutional Chamber in ruling 2657-2001 at 3:15 p.m. on April 4, 2001, which, insofar as relevant, provided:

"'IV. On the argument that the tax is confiscatory: the State may take a proportional part of the income generated by the individual to cover its expenses, but always provided that it does not go so far as to annul property as such, as would be the case if the tax were to completely absorb the income. If the Constitution protects the right of property to integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not denature other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation; therefore, a taxation measure going beyond what is reasonable and proportionate cannot be permitted. (…). If the Constitution in its article 45 establishes that property is inviolable, and in its article 40 that no one shall be subjected to a penalty of confiscation, it is unquestionable that the tax cannot be such that it renders such guarantees illusory. But it can indeed be established as a principle, that a levy is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or else, if the tax absorbs a substantial part of the taxed operation (…) (the highlights are from the report).

States that a respectful request was made to the legislature that special care had to be taken with the reductions imposed so that they would not prove confiscatory since, in addition to this solidarity contribution, one could not lose sight of the fact that an ordinary retirement set at 85% –the percentage indicated by the text consulted at that time– which bears the obligatory charges of 15% –the percentage indicated by the text consulted at that time– contribution to the Fund, 5% to the CCSS Regime, and 15% for income tax, already suffered a reduction of 50% –according to those calculations–, of the salary that the retired person received when they were actively employed, without considering, moreover, that the calculation was not made at that time based on the current salary, but on a pro-rated basis of the last 20 years of work. States that, in addition to the above, as mentioned in the report issued on that occasion, the situation was also not foreign to those benefits already granted and enjoyed since, currently, they bear levies from 31% to 35% of the total right, which added to the lowest percentage of the solidarity quota –25%–, yielded a total of 60%, which could prove confiscatory and disproportionate, consequently, contrary to what is stipulated in conventional matters and unconstitutional. Indicates that it is important to bring up article 67 of Convention No. 102 of the ILO regarding the amount of the benefit and the warning made therein that the total of the benefit and the family's other resources, after deduction of appreciable sums, must be sufficient to ensure the family healthy and decent living conditions and must not be less than the amount of the benefit calculated according to the provisions of article 66 of that regulatory body. Points out that Recommendation No. 43 of the ILO must also be taken into account, which is consistent in establishing that the pension must satisfy the essential needs of persons in their old age, and therefore the amount must be set taking into account the "cost of living and the social situation during the period of professional activity"; that is, the standard of living that the worker enjoyed during their active professional life must be respected. States that, for this reason, it was estimated that the indicated regulatory framework should be taken into account when imposing caps and tax burdens on retirement benefits, so that these conform to the reasonableness and proportionality indicated by both the Constitutional Chamber and the International Labour Organization (ILO).

• f)Article 239 creates the Administrative Board of the Pension and Retirement Fund of the Judicial Branch (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), as an organ of the Judicial Branch with complete functional, technical, and administrative independence, and assigns it a series of functions that previously corresponded to the Superior Council of the Judicial Branch, as administrator of the Pension and Retirement Fund of the Judicial Branch, according to subparagraphs 12, 13, 14, and 15 of article 81 of the Organic Law of the Judicial Branch, repealed by article 2 of Law 9544. Argues that, thus, some functions of the Superior Council of the Judicial Branch are modified and an internal dependency of the institution is created, which, although it possesses instrumental legal capacity (personería jurídica instrumental), maintains an organic relationship with the Judicial Branch, that is, it continues to be subordinate to it in all aspects not pertaining to the function that was assigned to it on a deconcentrated basis, as well as in aspects derived from its instrumental legal capacity, and therefore must be understood as an organ of the Judicial Branch. Indicates that the challenged norm establishes certain powers for the Full Court and the Superior Council of the Judicial Branch as institutional heads who must ensure the proper functioning of their dependencies and efficiency in the provision of the service; among these powers, article 240 granted the Full Court the power to appoint 3 members of the Administrative Board, with their respective substitutes; for this purpose, the entire internal recruitment and selection system had to be activated by the technical offices and initially define the manner in which the respective competitive process would be carried out, which, at the date of issuing this report, had not been fully constituted due to a lack of applicants and reasons beyond the institution's control. Adds that the last paragraph of that article 239 of the challenged Law established a commission for administrative expenses, given that, initially, that money would very likely prove insufficient to cover the administrative expenses plus the salaries of the Administrative Board. Points out that for the foregoing reason, at the time of issuing this report, the need for the Judicial Branch, at the appropriate time, to provide reasonable material support to the Administrative Board is palpable; this in view of the fact that any risk must be avoided, among them, the risk that, due to a lack of foresight, the start-up of this new organ's operation might be affected. States that it is pertinent to highlight that Law 9544 presents many vague points that will have to be supplemented via regulation, some –at that time– approved by the Full Court, and that must not go beyond that Law, at the risk of deviating from the will of the legislator. Warns that this problem was also pointed out during the processing of legislative file 19.922 that gave rise to Law 9544, given that, in that sense, the Attorney General of the Treasury (Procurador de Hacienda) pointed out that the lack of clarity of article 240 regarding the Administrative Board could be corrected through regulations, but, in that case, there is a risk that the regulation would not reflect the intention of the legislator (Legal Opinion 104-2017 of August 16, 2017). Indicates that the foregoing is due to the fact that there is a contradiction or clash of norms in relation to the regulation on the payment of per diems (dietas) to the persons who make up the Administrative Board, where according to article 239, paragraph 5, the commission for administrative expenses (5x 1000) will pay the per diems of the members of the Administrative Board, the salaries of its staff, and its administrative expenses; while, on its part, article 204, paragraph 4, at the same time provides that "the members of the Administrative Board shall not earn any per diem" (the underlining is from the brief). Reports that, for all the foregoing, the Full Court in the cited sessions, issued a negative opinion and agreed that the texts consulted on bill number 19.922 did affect the functioning and organization of the Judicial Branch, concluding in the agreement of session number 26-17, held on August 7, 2017, article XXX, insofar as relevant:

"'It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life plan of all judicial employees because it means a reduction in retirement, even though they have met all the legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding dues; the payment of income tax; contributions both to the Pension and Retirement Fund of the Judicial Branch and to the system of the Costa Rican Social Security Fund and another series of burdens which, if the text is approved as proposed by the Drafting Committee, would result in confiscatory actions.

"'It cannot be overlooked that the creation and nature of the Pension and Retirement Fund of the Judicial Branch responds to criteria of stability, independence, preparation, and suitability, as established by article 192 of the Political Constitution, with the aim of promoting the permanence of trained and qualified personnel in the institution, and the reduction of retirement enjoyment represents a disincentive for the entry of valuable professionals who, considering the economic result of a future assessment, would prefer to pursue their professional career in another labor sphere.

"'The judicial career, the prosecutorial career, the Public Defense career, and the career of the staff in general, are affected since, bearing more burdens on their salary –four times more than in other regimes–, they would receive a lesser benefit.

"'Moreover, the renewal of staff who manage to stay is affected. The Judicial Branch would have older employees who remained working solely because of the reduction their income would suffer if they retired.

"'The judicial population would face a crossroads, where while it is true, there is a desire to opt for that right and the motivation to retire to rest, they are placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to the pension, and those natural due to age-related reasons. However, that process also has its restrictions; from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired persons from opting for another job, and socially it is a reality that after forty years of age, there are factual limitations regarding re-entry into the labor force.

"'It has a great relationship with the structure and functioning, as it reduces the competitiveness of the Judicial Branch in the labor market, to the detriment of the quality of the Administration of Justice. The salary of the positions is diminished by the contribution to the pension and retirement regime, which is four times greater than the contribution to other regimes. This hinders the recruitment of human resources and the public service is harmed.

"'Furthermore, the regulation of the Pension and Retirement Fund of the Judicial Branch must not be assessed solely from an economic perspective, for we are dealing with fundamental rights –in inalienable– associated with every worker, who during their working years contributed a percentage higher than the general one, to a regime with the expectation of having a pension that allows them to satisfy their needs and enjoy, together with their environment, their retirement years in a calm manner and with quality of life.

"'The imposition of this new tax burden affects vulnerable population groups –like older adults– harming the weakest party, precisely the one that requires greater protection from the State.

"'The proposed tax is imposed at a moment in the life of the retired person when they are more vulnerable, close to or already of the third age.' It cannot be ignored that it is at this stage where people generally require greater medical attention, special care, among other things, given that during their working life, some to a lesser or greater extent, according to the income received, contributed to the system with the expectation of having the resources planned to face this process, and if this Bill were to be approved, that life plan would be cut short.

It would cause a significant social impact, because people in retirement lose, suddenly, an important part of their income, but maintain a status of pre-established expenses, which becomes a repercussion, not only economic, but also on their health, being contrary to the objective foreseen for a pension system, which is to have sufficient income during life after work, a scenario in which it is important to remember that on many occasions, the retired person continues to have under their care and support other elderly persons or minors.

(…) it is estimated that the consulted text does affect the structure, organization, and functioning of the Judicial Branch and in that sense, the Legislative Assembly must take into account what was said by the Full Court in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from said binding opinion (…).

Corollary, regarding the bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch” (the highlights are from the brief).

It adds that the Constitutional Chamber, in judgment number 2008-5179 of 11:00 a.m. on April 4, 2008, regarding the impact on the functioning and organization of the Judicial Branch, made an extensive analysis related to the aforementioned Article 167 of the Constitution which, in what is relevant, ordered:

“(…)

On the other hand, the non-application by the Legislative Assembly of the constitutional norm, by mistakenly considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch. The majority of this Constitutional Court estimates that a bill deals with such extremes when its articles contain explicit norms that provide for the creation, substantial variation, and suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions (…). An important barrier, established by the constituent power, to legislative discretion, is precisely, Article 167 of the Constitution, in order to maintain the independence of the Judicial Branch by providing for a mandatory consultation of bills related to the organization and functioning that concern that Branch of the Republic. However, that limit must be interpreted in its true dimension, so that it operates when the bill substantially, objectively, and certainly refers to such matters, otherwise the freedom of configuration of the ordinary legislator is unnecessarily and unjustifiably limited, jurisdictional or administrative bodies or functions attached to the Judicial Branch” (the highlights are from the brief).

It argues that, based on the foregoing, the procedure for the approval of Law 9544 is that established by Article 167 of the Political Constitution, which refers to the mandatory consultation that the Legislative Assembly must make to the Supreme Court of Justice when the bill refers to the organization or functioning of the Judicial Branch and, furthermore, to depart from the latter's opinion, “the vote of two-thirds of the total members of the Assembly shall be required”; with this, the legislator guaranteed the “democratic principle,” whose function is that bills analyzed under these conditions have sufficient “opportunity for reflection and debate,” as the Constitutional Chamber has indicated in judgment number 3671-2006 of 2:30 p.m. on March 22, 2006. It adds that, according to the records of the General Secretariat of the Supreme Court of Justice, after the consultation presented by official communication number AL-20035-OFI-0043-2017 of July 31, 2017 -Affirmative Majority Opinion-, no other consultations were received from the Legislative Assembly and the approved text presented some important modifications in relation to the last consultation.

157.- The Office of the Attorney General of the Republic (Procuraduría General de la República) rendered its report through its Attorney General, Julio Jurado Fernández, by means of a brief filed with the Secretariat of the Chamber at 9:20 a.m. on March 14, 2019. It points out that, before addressing the specific objections raised against the reform of the Judicial Branch's pension system (régimen de pensiones del Poder Judicial) operated through Law No. 9544, it must be noted that in accordance with Article 73 of the Political Constitution, the administration and governance of social insurance corresponds to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), which implies, in principle, that it would be up to that institution (independently of the law and even with prevalence over it), to establish the conditions that should prevail in the different social security systems. It argues that this is the situation that prevails in the general disability, old age, and death system, which is administered under the conditions established, through regulations, by the Board of Directors of the Costa Rican Social Security Fund. It argues that, despite the foregoing, in Costa Rica, various special pension systems have been created, through legislation, substituting for the general one, whose existence has been repeatedly endorsed by the Constitutional Chamber, being able to cite as an example, judgment number 846-92 of 1:30 p.m. on March 27, 1992, in which it was ordered that the existence of special retirement or pension systems is not contrary to the Constitution, provided that the contribution of the State as such is equal for all systems, including those of private enterprise, and that the contribution of the State as an employer, in the various systems, is not greater than that imposed on other employers, including private employers, nor, in any case, less than that of all servants or workers. It adds that, based on the foregoing, its represented party has indicated that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special, substitute pension systems replacing the general one, through the approval of the laws required to achieve that objective. It adds that, along these lines, the Office of the Attorney General has maintained that the administration of any social security system requires flexibility to adequately direct the limited resources available, and that this flexibility is affected when the legislator—or whoever has the competence to make changes to the norms regulating the matter—is inhibited from modifying both the initial conditions and the benefits in progress. It argues that, based on the foregoing, it is not possible to admit that the norms that established the conditions of a given system be petrified, because this could even lead to the collapse of a country's social security system, which would harm not only people who have already reached the status of pensioners, but also those who have justified expectations of obtaining in the future (when any of the protected contingencies arises) economic benefits from social security. It states that in this line, one may consult opinion C-147-2003 of May 26, 2003, reiterated in C-181-2006 of May 15, 2006, in OJ-021-2007, and in OJ-082-2015 of August 3, 2015.

Regarding the objections of constitutionality against the reform of the Judicial Branch Pension System operated through Law No. 9544, it indicates that, without prejudice to what was said above in the sense that the legislator has the power to regulate the different pension systems substituting the general one (including the Judicial Branch system), it is clear that the exercise of that power must respect the constitutional norms and principles governing the matter. It states that, according to the plaintiffs, the reform of the Judicial Branch's pension system operated through Law No. 9544 presents several problems of constitutionality, which it reports it has grouped into several topics referred to below.

• 1)Regarding the omission of submitting the definitive bill to consultation with the Judicial Branch, despite the fact that the pension system reform affects the organization and functioning of that Branch: in relation to this point, it asks that the provisions of Article 167 of the Political Constitution be considered:

“Article 167.- For the discussion and approval of bills that refer to the organization or functioning of the Judicial Branch, the Legislative Assembly must consult the Supreme Court of Justice; to depart from its opinion, the vote of two-thirds of the total members of the Assembly shall be required” (the highlights are from the brief).

It argues that, in the opinion of the Office of the Attorney General, the reform of the Judicial Branch's pension system does not affect the “organization and functioning” of that Branch, and therefore, one would not be facing one of the cases in which the legislative process requires a mandatory consultation, since this is necessary when legislating on the exercise of the jurisdictional function, not when seeking to regulate administrative aspects, such as those related to the pension system of judicial employees. It indicates that this thesis has been repeatedly upheld by the Constitutional Chamber, as in judgment No. 3063-95 of 3:30 p.m. on June 13, 1995, when ruling on the possible unconstitutionality of the Framework Law on Pensions, in which it said, in what is relevant:

“III. ON THE MANDATORY CONSULTATION TO THE SUPREME COURT OF JUSTICE. (…). Furthermore, said consultation is mandatory only in the case of the 'organization and functioning' of the Judicial Branch, functioning that refers to the jurisdictional function, with the objective of guaranteeing the independence of the Judicial Branch; this procedure does not refer to the granting of benefits for judicial servants, as is the matter under study, and therefore the consultation is unnecessary” (the highlights are from the brief).

It adds that, on the other hand, one might think that even though the matter of pensions is not directly related to the jurisdictional function of the Judicial Branch, the modification of the norms governing that matter could cause a budgetary impact that indirectly justifies the mandatory nature of the consultation referred to in Article 167 of the Political Constitution; an aspect on which there is also a specific pronouncement from the Chamber to the effect that the absence of consultation in such circumstances does not infringe upon the Political Constitution:

“(…) the Chamber considers that the pension system for judicial servants challenged here does not modify the legal regime by which the Supreme Court of Justice administers justice, nor does it reorder the number or the competencies of existing courts. Nor can an only indirect effect be alleged against the norm, which would be caused by a change in the general budget of the Judicial Branch, which in turn could affect the jurisdictional function. A second-degree effect such as this is not a criterion of sufficient constitutional importance to invalidate an act of the Legislative Branch” (see judgment number 2002-004258 of 9:40 a.m. on May 10, 2002) (the highlights are from the brief).

It points out that the jurisprudential thesis set forth has been the same one that this Office, acting as an objective advisory body to the Constitutional Chamber, suggested following in the reports rendered in the unconstitutionality actions No. 2340-92 and 3631-96, in which the cited judgments numbers 3063-95 and 4258-2002 were respectively issued. It adds that they also stated this in legal opinions numbers 056-2016 of April 26, 2016, 069-2016 of May 12, 2016, 075-2017 of June 21, 2017, and 104-2017 of August 16, 2017. It states that, furthermore, the Chamber, when processing the consultation of constitutionality raised regarding Bill No. 19,922 that culminated with the approval of Law No. 9544, reiterated that the regulation of the Judicial Branch's pension system is not part of the organization and functioning of that Branch:

“…the creation of the Judicial Branch pension system was key to the stability of the administrative and judicial career of its servants and officials, and became a fundamental complement to the judicial career (carrera judicial), as a guarantee of the independence of the judiciary. Together with the latter, it allowed for stability for judges and other servants and officials, both active and inactive, which made the judicial career attractive to many jurists and thereby favored the stability and specialization of many officials in different branches of the judicial apparatus, but clearly, it was not created as an intrinsic element of judicial independence (a core aspect of the constitutional protection of Article 167 when it speaks of 'structure and functioning'), which is constitutionally based on other factors, such as the existence of a career that guarantees objectivity in the selection of judges, based on criteria of suitability and stability, the economic and political independence of the body, among others; but the legislator could well have opted for a single system for all public employees or workers in general, without it being possible to assert that this detracts from the body's independence” (judgment No. 5758-2018 of 3:40 p.m. on April 12, 2018) (the highlights are from the brief).

It argues that, by virtue of the foregoing and for the specific case, the Office of the Attorney General does not consider that this is one of the cases in which the mandatory consultation provided for in Article 167 of the Political Constitution is applicable.

• 2)Regarding the omission to grant a hearing, during the legislative process, to the Costa Rican Social Security Fund and the state banks: it recalls that the plaintiffs maintain that during the legislative process, a hearing should have been granted to the CCSS and the state banks because their autonomy was affected by assigning them functions, competencies, and obligations without first obtaining their opinion. On this aspect, it indicates that the defense of the autonomy of the CCSS and the state banks must be made by those institutions, not by the union organizations of the Judicial Branch, nor by its former officials. The Office of the Attorney General considers that, regarding this issue, there is a lack of standing (legitimación) of the plaintiffs to raise the objections they formulate, which has also been admitted by the Chamber on some occasions, as in judgment number 2017-014651 of 9:30 a.m. on September 13, 2017, in which it was indicated, in what is relevant:

“(…) this Constitutional Court has indicated that the defense of an institution's autonomy must be made before this body by that same entity and not by a third party (votes Nos. 2008-014190 of 10:00 a.m. on September 24, 2008, 2008-017295 of 2:48 p.m. on November 19, 2008, 2016-01669 of 9:30 a.m. on February 3, 2016, and 2017-008159 of 9:15 a.m. on June 2, 2017). In the sub judice, the plaintiff acts in his capacity as representative of a corporation (sociedad anónima), for which reason he does not have standing to act in defense of municipal autonomy” It argues that, based on what has been said, it is the opinion of the Office of the Attorney General that the reasons of unconstitutionality raised by the plaintiffs for the possible violation of the autonomy of the CCSS and the state banks are inadmissible.

• 3)Regarding the violation of the principle of publicity: it argues that, according to the plaintiffs, during the legislative process that culminated with the approval of Law No. 9544, the principle of publicity was violated because the substitute texts used during said procedure were not published. In relation to this aspect, it states that the Chamber analyzed in depth whether the reform of the Judicial Branch's pension system respected the principle of publicity that must be observed during the entire legislative process; an analysis that was carried out on the occasion of the consultation of constitutionality processed through judgment number 2018-005758 of 3:40 p.m. on April 12, 2018, and in what is relevant, that resolution held:

“XII.-On the alleged violation of the principle of publicity. The consultants argue that the substitute text approved by the Special Commission in the session of September 13, 2016, was not published, which, in their view, contravenes the principle of publicity, as well as the rules set by the special procedure approved for file number 19,922. On the matter, from the evidence provided by the executive director of the Legislative Assembly on March 12, 2018, it is clear that, although the mentioned document was not published, the fact is that said substitute text had no impact, since the substitute text approved was a different one, and therefore the principle of publicity was not affected. It must be kept in mind that publicity is not an end in itself, as this Court has held in advisory opinion number 2018-003851, when it established the following: 'Certainly, as stated in judgment No. 2006-009567, the omission of publication constitutes an essential defect that invalidates the legislative process due to its relevance for the purposes of the democratic principle. However, in light of what was stated in judgment No. 2013-008252, it becomes necessary to warn that the principle of publicity is not an end in itself, but rather its importance lies in, on the one hand, guaranteeing transparency, and, on the other, enabling the participation of interested parties. As stated in the recently transcribed judgment No. 2013-008252 "...This quality enhances at a constitutional level the fundamental purpose of publicity: to promote the intervention of citizens in the fundamental decisions of the State. If this purpose is not violated and it is noted that there has been no real obstruction to popular participation, then an error in the publication cannot by itself constitute an essential defect of the legislative procedure." (The underline is added). Mutatis mutandis, if the publication is made at a different procedural moment, it must be assessed whether a real obstruction to popular participation has occurred or whether the transparency of the legislative procedure has been seriously affected, for the purpose of determining the existence of a substantial defect in the legislative procedure; if that is not the case, one would not be in the presence of such a defect.' Thus, a violation of the principle of publicity does not occur, as argued in the initial brief of this legislative consultation, because there has been no real obstruction to popular participation or a serious impact on the transparency of the parliamentary procedure. Therefore, the argument raised is discarded” (the highlights are from the brief).

Additionally, it points out that it is public and notorious that the union organizations of the Judicial Branch actively followed the entire legislative process that culminated with the approval of Law No. 9544; a process that was also given extensive journalistic coverage, and therefore the Office of the Attorney General considers that it is not possible to assert that there was any serious omission in the publicity of the bill that could justify the annulment of said law.

• 4)Regarding the possible unconstitutionality of Article 208 bis of the Regulations of the Legislative Assembly: it mentions that, for the plaintiffs, the special legislative procedure authorized by Article 208 bis of the Regulations of the Legislative Assembly is unconstitutional because it infringes upon the democratic principle, legal certainty, political participation, and the principle of representation. It indicates that this Office has pronounced on several occasions in favor of the constitutional validity of Article 208 bis of the Legislative Regulations; a norm that foresees the possibility of giving a special procedure to a legislative initiative, provided that at least 38 deputies agree to it. It argues that, along these lines, its represented party has maintained that the possibility of granting such a special procedure, in itself, does not violate the principle of the singular non-derogability of the regulation, nor the democratic principle, in its various manifestations. It points out that when responding to the hearing granted in the unconstitutionality action processed under file No. 11-012867-0007-CO, its represented party indicated the following:

“…Article 208 bis was added to the Regulations of the Legislative Assembly through the mechanism provided for that purpose, namely the order motion. By adding to the Regulations, the Legislative Assembly has exercised its regulatory power, and it cannot be considered that said exercise violates the principle of singular non-derogability of the regulation. Article 208 bis is in accordance with the democratic principle and is an expression of rationalized parliamentarianism. It cannot be forgotten that after the Second World War, the various legal systems have foreseen the need to equip themselves with special procedures to deal in a more expeditious manner, with a reduction above all of timeframes, with transcendental situations and problems that challenge the contemporary State. It is based on the need for the contemporary Parliament to respond quickly to the challenges presented to the democratic State. This response capacity may derive from the establishment of special procedures for certain matters or from providing for reductions in timeframes or more expeditious procedures in relation to the normal legislative channel, all with the purpose of maintaining the democratic regime and the principles that govern it, which are affected when the Parliament is unable to respond. And this is the very purpose of Article 208 bis” (the highlights are from the brief).

For its part, it recalls that the Chamber has resolved that Article 208 bis of the Legislative Regulations is constitutionally valid provided that in each specific case, the democratic principle, the principle of minority participation, and the principle of legal certainty are respected:

“V.- CONDITIONS UNDER WHICH THE BILL TO ADD AN ARTICLE 208 BIS TO THE REGULATIONS OF THE LEGISLATIVE ASSEMBLY IS SUBSTANTIALLY IN ACCORDANCE WITH THE LAW OF THE CONSTITUTION. A) Respect for the democratic principle and for the free political participation of minorities: This Constitutional Court understands that the bill to add Article 208 bis to the Regulations of the Legislative Assembly is in accordance with the Law of the Constitution, provided that it is provided or interpreted that the order motion therein provided must be approved by a vote of no less than two-thirds of the total members of that body, since establishing or providing special procedures for the processing of the reform to the Regulations and certain bills, implies a reform or modification of the Regulations, that is, of the ordinarily provided procedures, so that to comply with what is established in numeral 121, subsection 22), of the Political Constitution and, above all, to be consistent with the democratic principle and the principle of minority participation in making a fundamental or transcendent decision, such a qualified or aggravated majority must be required, which implies obtaining a legislative consensus in which different political-party or ideological orientations concur, for its respect. To the foregoing, it must be added that the observance of the requirements established in interpretive agreement No. 4084 of June 10, 1999 —because it involves the exercise of the power of reform— guarantees such principles, as this Chamber set forth in Vote No. 8408 of 3:24 p.m. on November 3, 1999, partially transcribed in the third recital (considerando) of this judgment. B) Observance of the principle of legal certainty: In order to adjust the bill for the addition to the constitutional principle of legal certainty and to avoid any surprise factor, this Court assumes that it must be provided or understood that the motion that reforms the regulation, by establishing a special procedure, must indicate in a sufficiently explicit, clear, and precise manner the various phases or stages in the processing of that special procedure (iter), so that as two-thirds of the total members of the Legislative Assembly are required for its determination, the democratic principle and the principle of free political participation of minorities are also respected” (see judgment No. 398-2005 of 12:10 p.m. on January 21, 2005. In the same sense, one may consult judgment 7687-2008 of May 7, 2008, and 4151-2012 of March 27, 2012) (the highlights are from the report).

Regarding this point, it concludes that as there are no weighty reasons to change the criterion, this Office of the Attorney General considers that Article 208 bis of the Legislative Regulations is not unconstitutional per se.

• 5)Regarding the impropriety of applying Article 208 bis of the Legislative Regulations to a bill that requires a qualified majority: it recalls that Article 208 bis of the Legislative Assembly regulates the possibility of granting a special procedure to a bill when two-thirds of the members of that legislative body so agree through the approval of an order motion; a possibility that applies in relation to bills that require an absolute majority for their approval, which implies that those bills for which a qualified majority is required cannot follow such a procedure. It adds that, in the case of the reform of the Judicial Branch's pension system —as already stated—, its represented party considers that it is a matter that does not affect the organization or functioning of the Judicial Branch, and therefore it is not necessary, within the legislative process, to carry out the prior consultation referred to in Article 167 of the Political Constitution, nor to gather the qualified majority for the approval of the bill in the event that the opinion of the Judicial Branch has been negative. Based on the foregoing, it affirms that the Office of the Attorney General does not observe any defect in the fact that the procedure of Article 208 bis of the Legislative Regulations was used for the approval of Law No. 9544, because, in its opinion, to carry out a reform of the Judicial Branch's pension system, it is sufficient that the respective law be approved by an absolute majority.
• 6)Regarding the reasonableness, proportionality, and fairness of the reduction of benefits and the increase in the retirement age and length of service: it indicates that, according to the plaintiffs, the reform of the Judicial Branch's pension system violates the principles of reasonableness, proportionality, and fairness because, on the one hand, the retirement age and the number of contribution years are increased, while, on the other hand, the economic benefits that the future retiree will receive are reduced; likewise, they maintain that, as a result of the reform, once the established reductions are applied, the amount of the pension is less than 55% of the last salary, which they consider excessive. On this topic, it points out that the need to make the changes in the Judicial Branch's pension system that are being accused of being unconstitutional derives directly from the actuarial studies on which said reform was based; in other words, increasing the retirement age and the number of contribution years, as well as reducing the economic benefits in favor of retirees, is not a decision that was adopted at the whim of the legislator, but rather is the result of the situation of the system that was reflected in the aforementioned actuarial studies. It adds that this point was subject to constitutional review through the optional consultation processed under file number 17-017148-0007-CO, and on that occasion, the Chamber resolved that the reforms incorporated into the Judicial Branch's pension system, regarding contributions, the retirement age, and the amount of benefits, are not contrary to the Constitution:

“… The consultants argue that Articles 224 and 227 of the bill injure the principle of judicial independence, insofar as the pension that the judges (juzgadores(as)) will receive, after applying the reductions legally established, will be less than 55% of the last salary, which constitutes a ruinous figure. Likewise, they claim that said situation will cause several servants to choose to leave the judiciary, and therefore an indirect measure of pressure is presented by another Branch of the Republic, which will necessarily influence the margin of freedom of judges, so that they desist from pursuing a true judicial career.” Those rules provide the following (…) It is worth mentioning that the challenged regulation rests on the actuarial studies that form the basis of the bill. In that regard, in official communication IICE-186-2017 of August 18, 2017 from the Institute for Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica, the following is stated regarding the subject in question:

“(…), the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between the contribution and the benefit received by the fund's members. In this case, the team considers that a single contribution of 13% (applied to active employees, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority Opinion sets the employer contribution at 14.36% (article 236, subsection 2), unlinking it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by the IICE.

(…)

d. Special, solidarity, and redistributive contribution from retirees and pensioners.

In article 236 bis, the Majority Opinion proposes a solidarity contribution—in addition to the ordinary contribution—that begins at 35% and reaches up to 55% on the cap of the retirement or pension. The applied percentage varies depending on the magnitude of the excess over the cap.

The scheme proposed by the Majority Opinion acts in favor of the fund with respect to frameworks IICE 3 and IICE 4 in that aspect, because the solidarity contribution in the majority text is set as “additional to the ordinary contribution,” while in frameworks IICE 3 and IICE 4 the ordinary contribution is included in the 50% of the solidarity contribution, which converts it (in those frameworks IICE_3 and IICE_4) into a net contribution of 39% or 35%, for ordinary contributions of 11% and 15%, respectively.” The Chamber considers that the foregoing complies with what has been established by international doctrine, in the sense that it is the public authorities who bear the burden of proving that the cuts are justified in light of the set of socioeconomic rights, and that in the event an administration needs to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects those measures may have on the rights of those affected and the regime, as well as showing that no less burdensome measures could have been taken, a situation that is satisfied in this case, taking into account the analyses carried out by the University of Costa Rica in the actuarial studies of the Judicial Branch Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones del Poder Judicial) (Judgment No. 5758-2018 of 3:45 p.m. on April 12, 2018) (the highlights are from the report).

It specifies that, in accordance with article 236 of the LOPJ, the total deductions that by law must be applied to the amount of the pension cannot exceed 55% of its gross amount; a rule that, in what is relevant, provides that “In no case may the sum of the mandatory contribution and the special, solidarity, and redistributive contribution, and, in general, the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Pension and Retirement Fund, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.” It indicates that, in accordance with the provision partially transcribed, it is not possible for the amount of legal deductions applied to the pension of a judicial official to exceed 55% of the gross amount of the benefit, and if that were to occur, one would no longer be in the presence of a problem of constitutionality of the rule, but rather of its application, which is not reviewable through this avenue. It argues that, in summary, the reasonableness, proportionality, and justice of a legislative reform to a pension regime must have as a parameter the data produced by technical studies—which is where the magnitude of the changes to be made must be reflected—and, in this case, the Attorney General's Office considers that the changes operated in the Judicial Branch pension regime have the necessary technical backing to affirm their conformity with the Law of the Constitution.

• 7)Regarding the alleged absence of technical studies: on this point, the plaintiffs consider that the reform to the Judicial Branch pension regime lacked the necessary technical studies to justify the propriety of the variations introduced to it. On the matter, it indicates that among the limits to the legislative power to configure the various substitute special pension regimes is the respect that must prevail for the constitutional principles of reasonableness and proportionality, as well as the necessary adjustment of the law to the prohibition on confiscation. It argues that the best way to avoid infractions of these constitutional principles is to base the reforms on technical-actuarial studies that demonstrate the necessity, reasonableness, and proportionality of the initiative. It recalls that, on the subject, the Constitutional Chamber has stated that “… that possibility of modification that the State has agreed to in its favor finds limits not only from the Political Constitution, but from International Law, among which those established in Convention No. 102 of the International Labour Organization relating to the minimum standard of social security stand out, which states, in what is relevant here, that the benefits granted in application of said Convention and the administration expenses must be backed by technical studies and not established or modified by a political, arbitrary, or capricious decision of the Administration, benefits among which is found the amount of contribution for the pension regime by the employee and the State as such and as employer, and which obligates that those variations be based on actuarial studies related to the solvency of the regime to be affected” (judgment No. 2379-96 of 11:06 a.m. on May 17, 1996) (the highlights are from the report). It argues that, evidently, the legislator has a certain margin of discretion to regulate the conditions under which special pension regimes must operate, but that margin is not absolute; rather, it must find support in objective data emanating from technical studies. It indicates that, in the case of the reform to the Judicial Branch pension regime carried out by means of Law No. 9544, the Attorney General's Office considers that it was indeed based on actuarial studies that shaped the scopes of said reform; studies that were carried out by the Institute for Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica, and based on them, the basic elements of the regime were established, such as the contribution, the percentage of the special solidarity contribution, the calculation of benefits, etc. It adds that, with respect to the existence of the necessary technical studies to support the reform, the Chamber, in the oft-cited judgment No. 5758-2018, stated the following:

“XIX.-Regarding the lack of studies to set the calculation of the pension. The consultants consider that article 224 of the bill is contrary to numeral 73 of the Political Constitution. They argue that the questioned article provides that the pension calculation will be obtained from the average of the salaries of the last 20 years earned by the worker, without having technical studies regarding what the real impact on the fund's reserves will be. They add that the study that served as the basis was the one issued by the University of Costa Rica, but in it, the last 120 salaries (10 years) were set as the limit for the pension calculation, so they consider that the Special Commission overreached in its assessments, since, without technical basis, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. Likewise, they consider it illegitimate that the annual rate of return on the Fund's investments is taken as absolute at 3%, without taking into account that actual returns were higher. As it pertains to the first of the allegations, the Chamber considers that after analyzing the case file, the alleged defect is dismissed, since at page 2942 of the legislative file, official communication number IICE-186-2017 of August 18, 2017 is recorded, in which the director of the Institute for Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica endorses the parameter established by article 224 of the bill, by stating, on the matter, the following:

“a. Reference salary for the calculation of the retirement or pension amount In the article 224 to be reformed, the Majority Opinion calculates the reference salary (salario de referencia, SR) as the average of the last 20 years (SR20), updated with the consumer price index calculated by the INEC, while frameworks IICE_3 and IICE_4 calculate it as the average of the last 10 years (SR10), adjusted by the same index. It was estimated that the average salary of the last 20 years, adjusted for inflation, is 4.8% lower than the average salary of the last 10 years for new pensioners, given the merit scale in effect in the Judicial Branch. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulation, acts in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we shall refer in the following subsection.

b. Worker contribution and member benefit (…)

Now, the Majority Opinion proposes a benefit of 85% of a reference salary of 240 months (instead of 120 months), with a worker contribution that, as commented, consists of a differential scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale were already noted, which, being left to the discretion of the Administrative Board (Junta Administradora) of the Judicial Branch itself, also runs the risk of being set in practice closer to 11% than 15%, which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between this contribution and the benefit that the fund's members receive. In this case, the team considers that a single contribution of 13% (applied to active employees, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority Opinion sets the employer contribution at 14.36% (article 236, subsection 2), unlinking it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by the IICE.” In that sense, upon verifying that, contrary to what is stated in the initial brief, a technical criterion does exist that endorses the parameter set by the bill with respect to the reference salary for the pension calculation, the Court dismisses the existence of the alleged defect.

On the other hand, regarding the second allegation of the consultants, the Chamber considers that, at its core, what is being questioned is whether the parameters that served as the basis for setting the requirements to obtain the right to a pension were adequate or not, an extreme that does not imply that the rule is unconstitutional, as the consultants consider, hence the defect is considered non-existent” (the highlights are from the report).

It indicates that, based on the foregoing, this advisory body considers that the technical studies that the plaintiffs miss in questioning the validity of the reform to the regime do indeed exist.

• 8)Regarding the special, solidarity, and redistributive contribution and the possible impact on acquired rights and the principle of equality: on this extreme, the Attorney General's Office considers that while it is true that there is a fundamental right to a pension widely recognized in the jurisprudence of this Chamber, it is also true that this Court has specified that there is no right to the benefit derived from that right being for a specific amount, since “… the pension or retirement may be varied according to circumstances, whether to requalify the benefit by increasing or decreasing it, when the contribution of the benefits is not sufficient to cover its quota in the cost of the regime…” (judgments 1925-91 of 12:00 p.m. on September 27, 1991, 2379-96 of 11:06 a.m. on May 17, 1996, and 3250-96 of 3:27 p.m. on July 2, 1996). It argues that, in the case of special contributions, the Chamber, in its judgment number 3250-96 of 3:27 p.m. on July 2, 1996, indicated that such contributions are not unconstitutional because they find their basis in the social nature of the right to retirement; a nature that is inscribed within the principles that constitute the Social State of Law, embodied in article 50 of the Political Constitution. It indicates that, in the mentioned resolution, the Chamber ratified the validity of a contribution imposed on the pensioners of the National Teachers' Regime (Régimen del Magisterio Nacional), stating the following:

“… the contribution that is fixed to be borne by the pensioners of the National Teachers' Pension Regime in article 12, and the exclusion from said contribution made as an acquired right in Transitory Provision I, both of Law Number 7268, do not violate article 34 of the Political Constitution, because they form part of the set of limitations that have validly formed the fundamental right to retirement that the plaintiff holds since their entry and from which they cannot escape because they acquired them along with it. (…) The manner in which article 12 of Law 7268 regulates the contribution to be borne by the pensioners of the National Teachers' Regime does not contravene article 45 of the Political Constitution, first, because it respects the principle of progressiveness (the only flaw that was noted when the Legislative Consultation was initially processed and that Parliament undertook to amend), thereby leaving practically intact an amount sufficient in the Chamber's judgment to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the various excesses that occur in specific cases have a clear protective and equalizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are directed at the social well-being of all, or at least of the great majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive rules for those cases that may be called, if you will, extraneous to the raison d'être of the regime, and which must therefore undergo an equalization process to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the regime's beneficiaries, consequently having to make—if it is their desire to continue enjoying the system's benefits—a greater contribution for receiving a greater consideration in relation to the persons taken into consideration when designing the system—in this case, the teachers—, who receive a substantially lower salary and, consequently, so is their retirement or pension. It is just then—due to the solidarity-based nature of the regime—to set a sufficiently high maximum amount that allows the inclusion of the higher salaries of the fund's own beneficiaries and to subject those above it to a greater participatory demand, as they always come from obligations not contemplated within those taken into consideration when establishing the bases of the system.” It states that, based on the foregoing, it is clear that nothing opposes, within the constitutional framework, the legislator imposing a contribution such as the one contemplated in the questioned law, provided that contribution is progressive and proportional, as occurs in this case. On the other hand, it indicates that this advisory body to the Constitutional Chamber does not consider that the special, solidarity, and redistributive contribution imposed on the beneficiaries of the Judicial Branch pension regime violates the principle of equality by affecting only judicial employees, since contributions of the same type apply in other pension regimes, for example, in the National Teachers' Regime (article 71 of Law No. 2248 of September 5, 1958), and in the regimes charged to the national budget (Law No. 9383 of July 29, 2016, and article 11 of Law No. 7302 of July 8, 1992). It states that, certainly, the burdens borne by Judicial Branch employees are different from those borne by members of the general disability, old-age, and death regime of the CCSS; however, that does not mean that the special, solidarity, and redistributive contribution borne by judicial officials violates the principle of equality or the "principle of unity of social security," since they are different pension regimes, with different characteristics, so one could not pretend to take from each one what is most beneficial for the interested party. It adds that the Attorney General's Office also does not consider that one is facing a case of double taxation, since the contribution to the fund imposed on all beneficiaries of the Judicial Branch pension regime is one thing, and the solidarity and redistributive contribution imposed only on pensioners who receive economic benefits exceeding ten times the base salary of the lowest position paid in the Judicial Branch is another; a contribution that is also proportional and progressive, and has a nature different from that of the contribution, so it is not considered contrary to the Political Constitution.

• 9)Regarding the authority conferred on the Administrative Board (Junta Administrativa) of the Judicial Branch Pension and Retirement Fund to modify eligibility requirements, benefits, contributions, and quotas: it notes that, according to the plaintiffs, the possibility attributed by article 239 of the LOPJ, reformed by Law No. 9544, to the Administrative Board of the Judicial Branch Pension and Retirement Fund to modify the initial parameters established in that law regarding eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and retirements and pensions, infringes the principle of legal reserve that applies in matters of regulating fundamental rights. In this regard, the Attorney General's Office considers that the power granted to the Administrative Board of the Judicial Branch Pension and Retirement Fund to modify the initial parameters established in that law is not unconstitutional as long as it is interpreted that said authority may only be exercised within the margins currently established in the law or those that may be established in the future, because the right to a pension is a fundamental right, and the legal regime of fundamental rights is reserved to the law, which is the one called to define its basic contours, among them, the eligibility requirements, the benefit profile, the amount of contributions and quotas, etc. It states that, if it were to be interpreted that the Administrative Board can, for example, increase the contribution of the State as such and of the State as employer to the Judicial Branch Regime, the precedents of the constitutional jurisdiction could be infringed, according to which, special pension regimes are constitutionally valid as long as the contributions of the State are the same as those with which it contributes to the general Disability, Old-age, and Death regime.
• 10)Regarding the period granted for the application of the reform to active officials: it indicates that, in the opinion of the plaintiffs, Transitory Provision VI of Law No. 9544 violates the acquired rights of judicial employees because it only respects the right to retire under the previous regulations for persons who, at the entry into force of that law, had 28 years and 6 months of service, disregarding the right of employees with seniority of 20 years or more. It argues that, on this point, it must be noted that article 34 of the Political Constitution establishes that no law shall be given retroactive effect to the detriment of any person or their acquired patrimonial rights or consolidated legal situations. It adds that, in the case of a pension or retirement, the right to enjoy it is acquired when all the requirements provided for in the regulations governing the matter are met; requirements which include age, years of service, etc. It affirms that, before those requirements are met, what exists is a mere expectation of a right, which is not comparable—not even—to a consolidated legal situation. It argues that, despite the foregoing, the Constitutional Chamber has validated that in order to protect the potential beneficiary of a given special retirement or pension regime from sudden changes that could aggravate the requirements for obtaining recognition of the benefit, if the legislator deems it appropriate and decides to regulate it through transitory law, a period of 18 months is sufficient for the modification of specific conditions not to affect the administered person who meets the requirements within that period. It refers that, through its judgment No. 846-92 of 1:30 p.m. on March 27, 1992, referring to what was then the bill for the Creation of the General Pension Regime Charged to the National Budget, the Chamber ordered—among other things—that: \"—in its transitory articles— recognizes the conservation of the retirement situation of employees who had met the requirements to enjoy the benefit, and furthermore extends it to those who belong or have belonged to the excluded regimes to acquire it, within a period of eighteen months, which seems reasonably sufficient to guarantee any eventual rights of good faith.\" It states that, with this, the Chamber considered that not only was the right of persons who, upon the law's entry into force, had met the requirements to retire or pension under the legislation sought to be modified guaranteed, but it extended it to those who were at an age close enough that it would allow them to do so (18 months after the reform), provided that the factual scenarios that said rules established had been met, despite their repeal. (See also judgment No. 5476-93 of 6:03 p.m. on October 27, 1993). It argues that the foregoing proves that, in the country, only the \"acquired right\" to retirement is recognized at the constitutional level when all the requirements demanded for that purpose have been met, while the misnamed \"right of belonging\"—which is nothing more than a mere expectation—is reduced exclusively to those who, within a few months after a reform (at least 18 months), come to meet those necessary requirements to receive the specific benefit according to the modified regulation, which is so only when the legislator themselves, through the express introduction of transitory rules, has so provided. It affirms that, beyond that, this right of belonging is a mere expectation that is extinguished with the reform or repeal introduced by the new regulation that is enacted. It argues that while constitutional jurisprudence has recognized that, in the case of contributory pension regimes, the contribution gives rise to a “right of belonging,” this does not make the rules of the system unmodifiable. It states that, in this case, Transitory Provision VI of Law No. 9544 provides that “Judicial employees who meet the requirements to acquire the right to a pension as established by the text of Title IX of Law No. 7333 of May 5, 1993, within the eighteen months following the enactment of this law, may pension under the provisions established in the mentioned text”; a provision that—even though it is optional for the legislator (such that it could not exist without implying any constitutional infraction)—allows one to affirm that the changes to the regime were not untimely or sudden, so the Attorney General's Office does not share the reasons of unconstitutionality alleged by the plaintiffs.
• 11)Regarding respect for mandatory gender criteria: it argues that, according to the plaintiffs, article 224 of the LOPJ, reformed by Law No. 9544, does not respect mandatory gender criteria, apart from granting relatively higher pensions to those with higher salaries and lower amounts to those with lower salaries, which breaks the principles of redistribution and solidarity of pensions and makes the regime unequal and discriminatory. With respect to the possible unconstitutionality of article 224 of the LOPJ for not applying mandatory gender criteria, it indicates that such differentiations are only justified when technical studies suggest the need for differentiated treatment, which was even resolved by the Chamber when hearing the facultative consultation of constitutionality raised within file No. 19922 that culminated in the approval of Law No. 9544, stating the following:

“… in the opinion of this Chamber, the fact that a differentiation based on gender is not made in the terms mentioned by the consultants does not entail a defect of unconstitutionality, since it must be taken into account that the requirements for obtaining a retirement benefit respond to objective criteria that are set based on technical studies, which establish requirements such as the age and number of quotas that a person must fulfill to guarantee the sustainability of a pension regime, regardless of the contributor's gender. It must be kept in mind that the consultants do not provide technical studies to support the alleged unconstitutionality, in such a way as to objectively justify making the differentiation that is missed, which does not mean that, in the future, this Court, through a posteriori control of constitutionality, will not analyze the grievance raised based on pertinent technical studies that may be provided” (judgment No. 5758-2018 of 3:45 p.m. on April 12, 2018) (the highlights are from the report).

It notes that, in any case, article 224 bis of the LOPJ, related to the topic of early retirement, does make a distinction between men and women regarding retirement age; a distinction that is very similar to that provided in the disability, old-age, and death regime of the CCSS, since retirement is allowed for women at age 60 and for men at age 62. On the other hand, regarding the argument that the reform to the Judicial Branch pension regime is unequal and discriminatory for granting relatively higher benefits to those with higher salaries, it points out that the reform, in its entirety, heeded the technical criteria emanating from the Institute for Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica, so an objection such as the one raised would only be susceptible to being accepted if it is demonstrated, technically, the discrimination alleged, which it affirms has not been done.

It further warns that the creation of the special, solidarity-based, and redistributive contribution referred to in article 236 bis of the LOPJ was precisely aimed at ensuring that pensioners with higher incomes contribute more resources to the fund for the solidarity-based support of the regime.

Conclusion: based on the foregoing, the Office of the Attorney General of the Republic (Procuraduría General de la República) suggests that the Constitutional Chamber (Sala Constitucional) dismiss the accumulated actions referred to in this report and affirms that, in the case of Article 239 of the LOPJ, its represented party considers that the powers granted to the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) to modify the initial parameters established in that law regarding eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and of retirements and pensions, is not unconstitutional provided it is interpreted that such power may only be exercised within the margins provided for in the law or those that may be established in the future.

158.- Carolina Hidalgo Herrera submits her report in her capacity as Deputy and President of the Legislative Assembly (Asamblea Legislativa) -at that time-, through a document filed with the Secretariat of the Chamber on March 18, 2019, and points out that, regarding standing (legitimación), pursuant to the provisions of Article 75, second paragraph, a prior pending case is not necessary when, due to the nature of the matter, there is no individual and direct harm or it concerns the defense of diffuse interests or those that concern the community as a whole; therefore, in the specific case, the standing (legitimación) of the plaintiffs is not questioned. She then refers to the procedural objections raised in the action.

• 1)Regarding the alleged violation of the principle of publicity (Article 117 of the Political Constitution of Costa Rica): she indicates that, according to the plaintiffs, the principle of publicity was violated during the processing of legislative file No. 19.922 because the publication of a substitute text approved by the Special Commission was omitted, which they consider entails a non-application of the special procedure that was agreed upon by the Legislative Assembly to hear this initiative in accordance with Article 208 bis of the Regulations, and, therefore, they consider it an essential defect in the legislative procedure. She states that this point has already been heard and addressed by the Constitutional Chamber in resolution number 2018-005758 of 3:40 p.m. on April 12, 2018, in which it was ordered:

“XII.- On the alleged violation of the principle of publicity. The consultants argue that the substitute text approved by the Special Commission in the session of September 13, 2016, was not published, which, in their view, contravenes the principle of publicity, as well as the rules established by the special procedure approved for file number 19.922. On this matter, from the evidence provided by the executive director of the Legislative Assembly on March 12, 2018, it is clear that, although the mentioned document was not published, the truth is that said substitute text had no impact whatsoever, given that the substitute text approved was another one, and therefore the principle of publicity was not affected. It must be kept in mind that publicity is not an end in itself, as this Tribunal has held in advisory opinion number 2018-003851, when it established the following:

“Certainly, as stated in judgment No. 2006-009567, the omission of publication constitutes an essential defect that invalidates the legislative process due to its relevance for the purposes of the democratic principle. However, in light of what was stated in judgment No. 2013-008252, it becomes necessary to warn that the principle of publicity is not an end in itself, but rather its importance lies in, on the one hand, guaranteeing transparency, and, on the other, enabling the participation of interested parties. As stated in the recently transcribed judgment No. 2013-008252, ‘...Such quality constitutionally enhances the fundamental purpose of publicity: to promote the intervention of citizens in the fundamental decisions of the State. If this end is not violated and it is noted that there has been no true obstruction of popular participation, then an error in publication cannot by itself constitute an essential defect of the legislative procedure.’ (Emphasis added). Mutatis mutandis, if the publication is carried out at a different procedural moment, it must be assessed whether there has been a true obstruction of popular participation or whether the transparency of the legislative procedure has been seriously affected, for the purpose of determining the existence of a substantial defect in the legislative procedure; if that is not the case, we would not be in the presence of such a defect.” Thus, there is no violation of the principle of publicity, as argued in the initial brief of this legislative consultation, since there has been no true obstruction of popular participation or serious impairment of the transparency of the parliamentary procedure. Therefore, the argument raised is dismissed” (2018-005758 of 3:40 p.m. on April 12, 2018).

She argues that, given that the plaintiffs do not contribute any new or different element from those already alleged by the deputies in the legislative consultation that served as the basis for the cited resolution, there is no reasonable ground to consider a conclusion different from what the Chamber stated in the referred judgment. She states that, despite the foregoing, it is important for the Presidency of the Assembly to indicate that the principle of publicity was broadly guaranteed by its represented party during the hearing and voting on legislative file No. 19.922 and, in this regard, reports that the updated text of the initiative was published on the following occasions: 1) Supplement (Alcance) number 110 of Thursday, June 30, 2016 https://www.imprentanacional.go.cr/pub/2016/06/30/ALCA110_30_06_2016.pdf Supplement number 189 of Friday, August 4, 2017- https://www.imprentanacional.go.cr/pub/2017/08/04/ALCA189_04_08_2017.pdf corresponding to the base text of the initiative; 2) Supplement number 190 of Monday, August 7, 2017 https://www.imprentanacional.go.cr/pub/2017/08/07/ALCA190_07_08_2017.pdf corresponding to the text reported by the Special Commission; 3) Supplement number 268 of Thursday, November 9, 2017, 2016 https://www.imprentanacional.go.cr/pub/2017/11/09/ALCA268_09_11_2017.pdf corresponding to the text approved in the first debate. She adds that, in view of the completion of the stages where it is possible to introduce modifications and after the text was consolidated, the Legislative Assembly always proceeded with its publication, which proves that the principle of publicity was respected at all times and the full popular participation of those who defended and opposed the initiative was permitted. She states that, in the last stage, after being voted on in the first debate, that is, from the last publication made after the vote in the first debate until the final vote on the legislative file in the second debate, almost 5 months elapsed during which the citizenry could argue for or against, and influence the deputies, whether to vote in favor, vote against, or resort to the mechanism of referral back to committee (motion under Article 154). She argues that, in a similar vein, the Constitutional Chamber has pronounced itself by stating:

“Certainly, as stated in judgment No. 2006-009567, the omission of publication constitutes an essential defect that invalidates the legislative process due to its relevance for the purposes of the democratic principle. However, in light of what was stated in judgment No. 2013-008252, it becomes necessary to warn that the principle of publicity is not an end in itself, but rather its importance lies in, on the one hand, guaranteeing transparency, and, on the other, enabling the participation of interested parties. (...) Mutatis Mutandis, if the publication is carried out at a different procedural moment, it must be assessed whether there has been a true obstruction of popular participation or whether the transparency of the legislative procedure has been seriously affected, for the purpose of determining the existence of a substantial defect in the legislative procedure; if that is not the case, we would not be in the presence of such a defect” (resolution 2018-003851 of the Constitutional Chamber of 11:41 a.m. on March 7, 2018).

She states that, likewise, the citizenry could also have access to the different updated texts, the reports, and the reports from the Technical Services department related to the processing of legislative file 19.922; even today, she affirms that all this information continues to be accessible to the public through the Legislative Assembly’s website: http://www.asamblea.go.cr/CentrodeInformación/Consultas_SIL/SitePages/ConsultaProyectos.aspx; therefore, regarding this aspect, she considers that the arguments raised should be dismissed on the merits.

• 2)Regarding the lack of consultation with the Judicial Branch on the text approved in the First Debate in violation of Article 167 of the Political Constitution: she argues that the plaintiffs, in their various briefs, allege that there was a substantial defect in the procedure because the Legislative Assembly omitted to carry out the mandatory consultation with the Judicial Branch on the text approved in the first and second debates of legislative file No. 19.922, in clear violation of the obligation established in Article 167 of the Political Constitution. She indicates that, on this point, once again, she points out that an identical claim was addressed by the Constitutional Chamber in the resolution that heard the optional constitutional consultation filed against legislative file 19.922; at which time the Justices stated:

“However, in view of the foregoing, this Tribunal considers that the matter covered by legislative file number 19.922 does not fall within the scenarios established by Article 167 of the Political Constitution and, therefore, there was no obligation to conduct a consultation with the Supreme Court of Justice (Corte Suprema de Justicia). In this regard, it is established that, although the questioned project creates an organ attached to the Judicial Branch, such as the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial), which assumes the functions previously granted to the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), the truth is that these elements refer to aspects that are specific to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), that is, typically administrative functions that have no impact, at least directly, on the jurisdictional function of the Judicial Branch, which is precisely what Article 167 of the Constitution protects. We are not, then, dealing with the creation, substantial variation, or suppression of strictly jurisdictional organs or those of an administrative nature attached to the Judicial Branch, nor does it create, ex novo, substantially modify, or eliminate materially jurisdictional or administrative functions. Note that the new organ –the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial)– forms part of the Judicial Branch’s structure, and its functions are typically administrative, that is, the administration of the mentioned Fund, which is not subsumable under the constitutional requirement of modifications to the organization and functioning of the Supreme Court of Justice that concern its typical, exclusive function, that is, the jurisdictional one and those essential administrative functions that support its primary function. In any case, and without prejudice to the above, it is necessary to mention that on page 2625 of the legislative file, it is recorded that, in response to a motion approved on July 27, 2017, by the Special Commission, through official letter number AL -20035-OFI-0043-2017 of July 31, 2017, the head of the Commission Area of the Legislative Assembly granted a hearing to the Judicial Branch regarding the affirmative majority report, with the Supreme Court of Justice proceeding to issue its opinion through official letter number SP-253-17 of August 10, 2017, as verified from the study of pages 2759 to 2807 of the legislative file. In this sense, it is clear then that the Judicial Branch was able to issue its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, even before it was heard by the Plenary. By virtue of the foregoing, the Chamber considers that the defect alleged by the consultants is not present” (resolution 2018-005758 of 3:40 p.m. on April 12, 2018).

She states that, given that the plaintiffs do not contribute any new or different element from those already alleged by the deputies in the legislative consultation that served as the basis for the aforementioned resolution, there is no reasonable ground to consider a conclusion different from that stated by the Constitutional Chamber; therefore, this aspect alleged in this unconstitutionality action must be dismissed on the merits.

• 3)Regarding the vote required for the final approval of file 19.922 and non-compliance with Article 167 of the Political Constitution: she argues that, in agreement with the previous point, the plaintiffs allege that there is an essential defect in the legislative procedure because the bill “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa” was considered “approved” in the second debate despite having received a favorable vote of less than the 38 required as provided in Article 167 of the Political Constitution, and for this, the plaintiffs point out that the Supreme Court of Justice had issued a negative opinion against this initiative through official letter SP 288-16 of September 28, 2019, pointing out a series of aspects that needed to be corrected and amended. She states that, on this matter, she reiterates what was resolved by the Constitutional Chamber in judgment number 2018-005758 of 3:40 p.m. on April 12, 2018, insofar as it considers that the matter covered by legislative file 19.922 does not fall within the scenarios established by Article 167 of the Political Constitution, given that there is no constitutional obligation to conduct the consultation, nor is there a constitutional requirement for the bill to be approved by a qualified majority. She indicates that, as recorded in the minutes of the ordinary session of the Plenary of the Legislative Assembly number 163 of April 19, 2018, the Bill that was heard under legislative file No. 19.922 was voted affirmatively by 34 deputies, and only 9 against; in this way and in accordance with Article 119 of the Political Constitution, it was correct for the Presidency to consider it approved in the Second Debate. Consequently, she considers that this aspect alleged by the plaintiffs must be dismissed on the merits.
• 4)Regarding the violation of Article 208 bis as a substantial defect in the procedure within legislative file No. 19.922: she recalls that the plaintiffs allege that the application of the special procedure to legislative file 19.922 was not possible because, in accordance with Article 167 of the Political Constitution and the negative opinion formulated by the Supreme Court of Justice through Official Letter SP 288-16 of September 28, 2016, this initiative required a qualified majority for its approval. She points out that Article 208 bis is clear in indicating that these types of abbreviated procedures cannot be applied to initiatives that require a qualified majority for their final approval; however, as explained in the two previous sections, she considers that the plaintiffs are mistaken in their consideration that said procedure required mandatory consultation with the Supreme Court of Justice, and therefore, given that it is established that Article 167 of the Political Constitution is not applicable to the bill in question, in her opinion there is no reason why the vote should be qualified, and therefore the nullity alleged by the plaintiffs is not possible. Consequently, she argues that this aspect alleged must be dismissed on the merits.
• 5)Regarding the omission of carrying out the prior consultation process with the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS) and the state banks in accordance with Article 190 of the Political Constitution of Costa Rica: she recalls that, according to the plaintiffs, the bill in question should have been mandatorily consulted with the CCSS and the state banks because the reforms introduced in Articles 226, 234, 227, Transitory Provision II, and 240 bis establish new obligations and affect the powers of the indicated autonomous institutions. In the case of Article 226, the plaintiffs indicate that it attributes a new obligation to the CCSS to return the contributions paid by a judicial employee; however, she states that this is not true because said obligation was already contemplated in the same article before the entry into force of Law No. 9544, specifically in Article 231 of Law 7333, and therefore she considers it is not true that Law No. 9544 modifies or alters the powers granted to the CCSS. She argues that proof of the above is the opinion held by the Office of the Attorney General of the Republic in opinion C-294-2008 of August 25, 2008, in which it is indicated, in pertinent part:

“II.- Items that must be transferred from the Pension Regime that received them to the Judicial Branch Regime This Advisory Body considers that it is clearly inferred from Article 231 of the Organic Law of the Judicial Branch that, in the event that an official of the Judicial Branch has contributed to another public pension regime, the latter is obliged to transfer to the Judicial Branch regime both the contributions made by that person and the funds deposited by the State for the purpose of the pension.

This Office of the Attorney General, in opinion C-265-2004, of September 10, 2004, had already pronounced on the issue of the transfer of contributions made to a pension regime different from the one that would grant the pension. On that occasion, we indicated the following:

‘...it is the opinion of this Office of the Attorney General that if an employee has made contributions to a specific pension regime, and their right to obtain a pension from a different regime is declared, the former is obliged to transfer the funds with which it presumably was going to grant a benefit that it ultimately did not grant.

The basis for managing the transfer of funds (apart from the specific provisions that each regime may have for this) is found in the elementary principles of justice, logic, and convenience referred to in Article 16 of the General Public Administration Law. Certainly, it is not fair, logical, or convenient for a pension regime to keep funds that another will lack to grant a benefit that the former did not end up conferring (...)

In any case, it should be noted that the transfer of funds does not consist of the simple transfer of the contributions made by the interested party. In this regard, it must be kept in mind that in pension matters, the contribution to the regime (whether to the general one or any of the substitutes) is tripartite, as it is made by the worker, their employer, and the State. For this reason, the funds to be transferred must, in principle, comprise these three types of contributions’.

In the situation under study, we consider that the answer to the query posed to us could not be different from the one given in the matter just mentioned, as it involves a very similar situation, with the particularity, even, that in this case there is an express norm of legal rank that orders the transfer of the sums contributed at the time by the State.

III.- CONCLUSION Based on the foregoing, this Office of the Attorney General considers that, in accordance with Article 231 of the Organic Law of the Judicial Branch, when an official of that Branch has contributed to another public pension regime, the latter is obliged to transfer to the Judicial Branch Pension Regime (Régimen de Pensiones del Poder Judicial) both the contributions made by that person and the funds deposited by the State for the purpose of the pension.” Therefore, she argues that this aspect alleged in the unconstitutionality action must be dismissed on the merits. She adds that, in this same vein, the plaintiffs allege that Article 234 and Transitory Provision II established in the law under analysis impose the obligation on the CCSS to return the contributed amounts and for that reason they are of the opinion that said institution should have been consulted. She argues that, contrary to the plaintiffs' opinion, the indicated articles grant the contributor the right to request the transfer of their contributions from the Judicial Branch Retirement Fund (Fondo de Jubilaciones del Poder Judicial) to the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), which she considers is not an obligation for the CCSS, but for the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial) and, therefore, given that there is no impact on the CCSS, she considers this aspect alleged in this unconstitutionality action to be entirely nonsensical and must be dismissed on the merits. Finally, she mentions that the plaintiffs allege that Articles 227 and 233 of the law under study affect the powers of the CCSS because they grant the Disability Status Assessment Commission of the Costa Rican Social Security Fund (Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social) the responsibility to declare permanent disabilities. Regarding this aspect, she affirms that this authority is not granted by Law number 9544 but is based on Article 3 of the Constitutive Law of the Costa Rican Social Security Fund, Article 7 of the Disability, Old Age, and Death Regulations (Reglamento de Invalidez, Vejez y Muerte), and the Regulations on the Qualification, Assessment, and Determination of the State of Disability, Old Age, and Death of the CCSS (Reglamento sobre la Calificación, Valoración y Dictamen del Estado de Invalidez, Vejez y Muerte de la CCSS), and therefore, in her opinion, there is no impact on the CCSS, whereby this aspect alleged in the unconstitutionality action is entirely nonsensical and must be dismissed on the merits. On the other hand, she recalls that according to the plaintiffs, Article 240 bis of the law under discussion includes serious limitations on the administrative autonomy of the banks and, for this reason, they should have been mandatorily consulted; despite this claim, she argues that the provision in question does not establish any limitation for the state banks and warns that, as the article provides, the subject of the indicated obligations and authorizations is the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), as it expressly establishes:

"The Administrative Board, under its responsibility, shall invest the accumulated resources of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), under the best market conditions, in such a way that the criteria of security, liquidity, and profitability prevail.

Said Board is authorized to place the resources of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) in the following investment possibilities: ..." Therefore, she considers that this aspect alleged in the unconstitutionality action must be dismissed on the merits.

Now, regarding the constitutionality arguments on the merits raised by the plaintiffs, she pronounces as follows.

• 1)On the unconstitutionality of Article 208 bis of the Regulations of the Legislative Assembly for the alleged violation of the Democratic Principle, Publicity, and Legal Certainty: The plaintiff, Álvaro Rodríguez Zamora (File 18-008267-0007-00), alleges in his initial brief that Article 208 bis of the Regulations of the Legislative Assembly is unconstitutional because it leaves to the discretion of a parliamentary majority the possibility of establishing a special and specific procedure for the hearing and final vote on a bill through an order motion, given that, in his opinion, this parliamentary discretion constitutes a violation of the Democratic Principle because it leaves parliamentary minorities unprotected regarding the impact this produces on the exercise of their constitutional powers as legislators, further alleging that since it is heard as an order motion, it does not need to be published or it does not allow any reasonable waiting period for its study, and prevents the right of amendment of the minorities since it is not possible to present motions to modify it, finally pointing out that by being an "ad-hoc" procedure, the Principle of Legal Certainty is violated since the rules provided in the order motion do not correspond to norms previously established in the Legislative Regulations. The reporting party states that identical arguments have already been analyzed by the Constitutional Tribunal in, at least, the following resolutions: a) 2005-00398 of 12:10 p.m. on January 21, 2005; b) 2005-02235 of 4:00 p.m. on March 27, 2012; c) 2005-05909 of 3:15 p.m. on May 18, 2005; d) 2007-02958 of 9:23 a.m. on March 2, 2007; e) 2007-9699 of 10:00 a.m. on July 4, 2007; f) 2007-002901 of 5:30 p.m. on February 28, 2007; g) 2008-07687 of 2:50 p.m. on May 7, 2008; and h) 4151-2012 of 2:37 p.m. on March 2, 2005. She reports that, on the last occasion, the Constitutional Chamber -by a majority of its members- established:

“V.- CONDITIONS UNDER WHICH THE BILL TO ADD AN ARTICLE 208 BIS TO THE REGULATIONS OF THE LEGISLATIVE ASSEMBLY IS SUBSTANTIALLY IN CONFORMITY WITH CONSTITUTIONAL LAW. A) Respect for the democratic principle and the political and free participation of minorities: This Constitutional Tribunal understands that the bill to add Article 208 bis to the Regulations of the Legislative Assembly is in conformity with Constitutional Law, provided that it is provided or interpreted that the order motion there stipulated must be approved by a vote of no less than two-thirds of the total membership of that body, since establishing or providing special procedures for the processing of the reform of the Regulations and certain bills supposes a reform or modification of the Regulations, that is, of the ordinarily provided procedures, so that to comply with what is established in numeral 121, subsection 22), of the Political Constitution and, above all, to be congruent with the democratic principle and the participation of minorities in making a fundamental or transcendental decision, such a qualified or supermajority must be required, which supposes the obtaining of a legislative consensus in which different political-party or ideological orientations concur for its respect. To the above, it must be added that the observance of the requirements established in interpretive agreement No. 4084 of June 10, 1999 —as it concerns the exercise of the power of reform— guarantees such principles, as this Chamber stated in Vote No. 8408 of 3:24 p.m. on November 3, 1999, partially transcribed in the third Whereas Clause (Considerando) of this judgment. B) Observance of the principle of legal certainty: In order to adjust the bill to add to the constitutional principle of legal certainty and to avoid any surprising factor, this Tribunal assumes that it must be provided or understood that the motion that reforms the regulations, by establishing a special procedure, must indicate in a sufficiently explicit, clear, and precise manner the various phases or stages in the conduct of that special iter, so that, as is required of two-thirds of the total membership of the Legislative Assembly in its determination, the democratic principle and the political and free participation of minorities are also respected.

VI.- OTHER ASPECTS CONSULTED. Finally, regarding the advisability of the norm, as well as its compatibility with the rest of the regulatory text, this is a matter that must be analyzed by the Legislative Assembly, since the integration and systematic relationship of the norms of its Regulations also form part of its self-regulatory power, in its interpretive or hermeneutical aspect.

Similarly, it is not for this Chamber to determine whether the consulted project is complex or not so as to fall within the exception of Article 205, since the foregoing constitutes a value judgment that exceeds the jurisdiction of this Court, and which in any case would be reviewable before the Plenary of the Legislative Assembly” (4151-2012 of the Constitutional Chamber).

It reiterates the arguments given by the Constitutional Chamber in the aforementioned judgment, and given that there are no new arguments or elements that were not considered by that Court in its case law, it considers that it is not necessary to expand on its analysis, adding that, in accordance with the majority opinion, this claim of unconstitutionality must be rejected on the merits.

• 2)Regarding the claim that the change in the parameters for accessing the right to retirement (Article 224), together with a special contribution and percentages applied in Articles 236 and 236 bis, constitute a violation of the principles of equality, proportionality, and reasonableness; that the pension is subjected to a special, solidarity-based, and retributive contribution and that the change in conditions was made abruptly, non-progressively, and to the detriment of acquired rights and consolidated legal situations; that the principle of equality is harmed, because retirees and pensioners of the Judicial Branch are subjected to said solidarity contribution, but not the beneficiaries of other pension regimes, and that there is double taxation on the part of retirees and pensioners of the Judicial Branch, on the one hand the percentage of contribution to the fund and on the other the percentage of the special contribution: it argues that, regarding the issue of the special contribution, the Constitutional Chamber in judgment No. 3250-96 of 3:27 p.m. on July 2, 1996, stated:

“... the contribution levied on pensioners of the National Teachers' Pension Regime in Article 12, and the exclusion of said contribution as an acquired right in Transitory Provision I, both of Law No. 7268, do not violate Article 34 of the Political Constitution, because they form part of the list of limitations that have validly formed part of the fundamental right to retirement held by the petitioner since his entry and from which he cannot withdraw because he acquired them along with it. (...) The manner in which Article 12 of Law 7268 regulates the contribution levied on pensioners of the National Teachers' Regime does not contravene Article 45 of the Political Constitution, first, because it respects the principle of progressivity (the only fault noted when the Legislative Consultation was discharged at the time and which Parliament undertook to amend), thereby leaving practically intact an amount sufficient in the Chamber’s judgment to guarantee the effective enjoyment of the right to retirement, and second, because the amounts charged for the various excesses that occur in specific cases have a clear protective and standardizing purpose for the benefit of the group of persons for whom the regime was established; that is, they are aimed at the social welfare of all or the vast majority of the members for whom the regime was conceived. This may entail that in some retirement systems there are redistributive norms for those cases that may be called, if you will, extraneous to the raison d'être of the regime and that must therefore undergo a process of standardization to assimilate the benefits received (to the extent necessary and possible) to those received by the majority of the regime’s beneficiaries, consequently having to make—if it is their desire to continue enjoying the benefits of the system—a greater contribution for receiving a greater consideration in relation to the persons who were taken into consideration when designing the system—in this case, the teachers—who receive a substantially lower salary and, consequently, their retirement or pension is also lower. It is therefore fair—due to the solidarity-based nature of the regime—to set a sufficiently high maximum amount that allows the inclusion of the higher salaries of the fund's own beneficiaries and to subject those above it to a greater participatory requirement, as they always come from obligations not contemplated among those taken into consideration when setting the bases of the system.” It affirms that, similarly, the Office of the Attorney General of the Republic stated in Legal Opinion No. OJ-104-2017, with respect to section 236 bis of the bill processed under File No. 20.035, in what is relevant:

“...it is clear that nothing opposes, within the constitutional framework, the legislator imposing a contribution such as the one contemplated by the bill under study, provided that such contribution is progressive and proportional.” It argues that reference has already been made to the legal possibility of the existence of different pension regimes and the appropriateness of special contributions.

• 3)That the principle of unity of social security is infringed because the burdens borne by the workers of the Judicial Branch exceed those borne by the workers affiliated with the regime of the Costa Rican Social Security Fund: it indicates that, regarding the existence of different regimes, the Office of the Attorney General of the Republic, in Legal Opinion number OJ-125-2004 of October 7, 2004, stated:

“IV.- Coexistence of several and distinct retirement and pension regimes in Costa Rica.

Despite the fact that the currently prevailing trend is the 'homogenization' of the social welfare regime regarding economic benefits for retirement and pensions—an example of which is Law No. 7302 of July 15, 1992, commonly called the Framework Law on Pensions—, the truth is that the conditions or assumptions for retirement were not reasonably regulated in the same way for all public servants; this is because public employment incorporates persons who make up an enormously 'heterogeneous' group. That diversity, provided it is reasonable, does not constitute discrimination contrary to the Constitution, because as the Spanish Constitutional Court has well admitted (SSTC 7/1984 and 68/1989, AATC 734/1988 and 1101/1988), the equality or inequality established by the legislator between bodies of officials, which are structures created by law, is the result of their very legal configuration.

It must also be considered that the retirement age prescribed in each special regime, as well as the qualifying period—be it of contribution, employment, or residence—have not been and do not have to be always the same for all existing regimes. This is so because its determination depends on a plurality of factors that normally have to do with the greater or lesser need for personnel that the Administration and its different components have and with social and economic policy criteria, such as combating unemployment or, conversely, reducing the public deficit by delaying the age at which pensions begin to be paid; all reasons widely debatable on the political level but which may be perfectly legitimate on the legal level.

When discharging a legislative consultation on the bill for the Framework Law on Pensions and Retirements, the Chamber, in its resolution No. 846-92 of 1:30 p.m. on March 27, 1992, expressed the following regarding the diversity of retirement regimes:

“B).- They consult in the same sense on the constitutional appropriateness of special regimes, understanding by such retirement systems different from that of the Costa Rican Social Security Fund, the admission of different norms in all or some of the aspects to be taken into account and, in the event that the regimes were considered viable, whether it would be appropriate to establish different rules in the retirement aspects, for example, by ages, contribution time, etc. The Chamber considers that, if the primary aim of the constituent was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of regimes. It is assumed that the constituent sought a minimum of protection for workers, leaving the door open for future regulation of new social security systems, which is the fruit of a historical process in which the current situation is a consequence of actions or deficiencies occurring in the past and, in turn, is the origin of actions that will occur in the future. Social security, that is, the public system of coverage of social, individual, and economic needs developed from the historical action of social welfare, structured in our country on the basis of pensions and retirements, along with the State's tutelary intervention in the sphere of labor relations, has come to become over time, without the slightest reservation, one of the main identifying features of the social or welfare state. Therefore, it cannot be surprising that in the index or agenda of the essential issues that permeate the social policy of the modern State, regarding insurance, there are different retirement and pension regimes. Since different regimes exist, it is logical for each one to have its own rules and legal criteria for granting the constitutional right to retirement and pension; without it even being possible to think that such coexistence is unconstitutional...\"” Based on all of this, the Chamber determined that it is not unconstitutional for diverse retirement regimes to exist, provided that certain essential requirements are met, such as the distribution of burdens under equal conditions, an aspect not questioned in this action. But as the Chamber has stated in the highlighted transcription above, “it is logical for each one (of the regimes) to have its own rules and legal criteria for granting the constitutional right to retirement.” That is, the specificity of the norms, which have the purpose of guaranteeing the very existence of the regime, do not necessarily have to be identical across that variety of regimes that may exist” (See in this regard judgment No. 4899-97 of 1:42 p.m. on August 22, 1997, and similarly 5347-97 of 1:00 p.m. on September 5, 1997, as well as No. 2001-10860 of 8:39 a.m. on October 26, 2001).

It states that it is important to clarify that we are in the presence of distinct regimes—which is legally feasible—it being relevant that, within each regime, clear rules are observed, adjusted to acceptable constitutional and legal parameters, and to that extent, there would be no infringement of the principle of unity of social security, which it considers cannot be linked to the homogenization of regimes.

• 4)That section 239 violates the principle of legal reserve in matters of regulation of fundamental rights, insofar as the Administrative Board of the Judicial Branch Retirement and Pension Fund was delegated the possibility of modifying the initial parameters established in the same law regarding eligibility requirements, benefit profile, contributions, dues, retirements, and pensions: in relation to this point, it notes that the Office of the Attorney General of the Republic, in Legal Opinion No. OJ-104-2017, stated:

"We consider that the recently transcribed norm must be interpreted in the sense that the Administrative Board of the Fund is empowered to modify the eligibility requirements, the benefit profile, as well as the contributions and dues, but only within the margins provided for in the law. Indeed, we estimate that the ideal would be for the norm to expressly state so. This is because—as we have already indicated—the basic characteristics of a pension regime that substitutes the General Regime must be established through norms of legal rank. If it were to be interpreted that the Administrative Board (integrated mostly by judicial officials) can increase the contribution of the State as such, and of the State as employer to the Judicial Branch Regime, the precedents of the constitutional jurisdiction could be infringed, according to which, special pension regimes are constitutionally valid provided that the State contributions are the same as those with which it contributes to the General Disability, Old Age, and Death Regime.” It argues that, this being the case, the modifications that the Judicial Branch Retirement and Pension Fund can validly make must only occur within the framework provided for by the law under analysis and the principle of legal reserve.

• 5)That Transitory Provision VI of Law No. 9544 establishes that the acquired right will only apply to persons with 28 years and 6 months of service at the time of its enactment, to the detriment of workers with 20 years or more of service in the Judicial Branch: in relation to the topic of acquired rights, it deems it appropriate to point out that the Constitutional Court stated in judgment number 2765-97 of 3:03 p.m. on May 20, 1997, the following:

"The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is possible to affirm that, in general terms, the former denotes that circumstance consummated in which something—material or immaterial, whether it be a previously foreign good or a previously non-existent right—has entered (or had an impact upon) the person’s patrimonial sphere, so that the person experiences a verifiable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial plus, but a state of affairs fully defined in terms of its juridical characteristics and its effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not whether those effects still last or not, but that—by virtue of a legal mandate or a judgment that has so declared it—a rule, clear and defined, has already emerged into legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...', that is to say, if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects—making it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty.” It affirms that, similarly, the Office of the Attorney General of the Republic stated in OJ-104-2017 of August 16, 2017, the following:

“Article 34 of the Political Constitution establishes that no law shall be given retroactive effect to the detriment of any person or their acquired patrimonial rights or consolidated legal situations.

In the case of the pension or retirement, the right to enjoy it is acquired when all the requirements provided for in the regulations governing the matter are met, requirements among which are age, years of service, etc. Before those requirements are met, what exists is a mere expectation of right, which is not even comparable to a consolidated legal situation.” It states that, in the case of expectation of rights referring to the pension or retirement regime, they must adhere to the legislation in force and constitutional precedents, understanding that the modification of a specific regime is feasible and does not imply, in itself, a constitutional violation.

• 6)That Transitory Provision VI of Law No. 9544 establishes a period that is too short for the law to deploy its effects, which affects the interests of judicial officials who wish to avail themselves of retirement: it indicates that the Office of the Attorney General of the Republic stated, with respect to the principle of non-retroactivity of the law and the scope of the norm’s modification, that:

"Article 34 of the Political Constitution establishes that no law shall be given retroactive effect to the detriment of any person or their acquired patrimonial rights or consolidated legal situations.

In the case of the pension or retirement, the right to enjoy it is acquired when all the requirements provided for in the regulations governing the matter are met, requirements among which are age, years of service, etc. Before those requirements are met, what exists is a mere expectation of right, which is not even comparable to a consolidated legal situation.

Despite the foregoing, the Constitutional Chamber has validated that to protect the eventual beneficiary of a specific special retirement or pension regime from sudden changes that may aggravate the requirements for obtaining recognition of the benefit, if the legislator deems it convenient and decides to regulate it by transitory law, a period of at least 18 months is sufficient so that the modification of the specific conditions does not affect the administered party who meets the requirements within that period.

In this regard, the Constitutional Chamber, through its judgment No. 846-92 of 1:30 p.m. on March 27, 1992, referring to the then bill creating the General Pension Regime Chargeable to the National Budget, ordered—among other things—that: '-in its transitory articles- it recognizes the preservation of the retirement situation of the servants who had met the requirements to enjoy the benefit, and also extends it to those who belong or have belonged to the excluded regimes to acquire it, within a period of eighteen months, which seems reasonably sufficient to guarantee any eventual rights of good faith.' With this, the Chamber considered that not only was the right guaranteed of persons who, upon the law’s entry into force, had met the requirements to retire or receive a pension under the legislation that was intended to be modified, but it extended it to those who were at a close age that would allow them to do so (18 months after the reform), always provided that the factual assumptions established by those norms had been met, despite their repeal. (See also judgment No. 5476-93 of 6:03 p.m. on October 27, 1993 of that same Chamber.)

The foregoing proves that in our context only the acquired right' to retirement is recognized at the constitutional level when all the requirements demanded for that purpose have been met, while the poorly named 'right of belonging'—which is nothing more than a mere expectation—is reduced exclusively to those who, a few months after the established reform (at least 18 months), come to achieve those requirements necessary to receive the concrete benefit according to the modified regulations. And this last point is only so when the legislator himself, by express introduction of transitory norms, has provided it in that manner. Beyond that, that right of belonging is a simple and plain expectation that extinguishes with the reform or repeal introduced by the new regulations that are enacted. Although constitutional case law has recognized that in the case of contributory pension regimes, contribution gives rise to a 'right of belonging,' this does not make the rules of the system unmodifiable.

In this case, the bill under study provides, in its Transitory Provision VI, that those judicial servants who meet the requirements to acquire the right to the pension as established by the text of Title IX of Law No. 7333 of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions established in the aforementioned text. That provision—even though it is optional for the legislator, so it could not exist without implying any constitutional infringement—allows affirming that the changes in the regime will not be applied untimely or suddenly” (OJ-104-2017 of August 16, 2017).

It states that, for the foregoing reason, the period granted in the transitory provision under analysis meets the parameters required to guarantee the eventual rights of persons who meet the requirements set forth in the regulations and that thereby a sudden modification of the norm is not carried out, for which reason it considers that the claim must be rejected.

• 7)That section 224 of Law No. 9544 infringes the principles of proportionality, reasonableness, and justice because it increases the retirement age and the number of years the official must work, but reduces the percentage of money they will receive as a pension with respect to the salary earned: it states that in Decision No. 732-2001, the Constitutional Chamber stated the following:

“V.- OF THE PRINCIPLE OF REASONABLENESS AS A CONSTITUTIONAL PARAMETER. Constitutional case law has been clear and consistent in considering that the principle of reasonableness constitutes a parameter of constitutionality ... To perform the test of reasonableness, U.S. doctrine invites examination, first, of the so-called 'technical reasonableness' within which the concrete norm (law, regulation, etc.) is examined. Once it is established that the chosen norm is adequate to regulate a specific matter, it will be necessary to examine whether there is proportionality between the chosen means and the sought end. Once the 'technical reasonableness' criterion is overcome, 'legal reasonableness' must be analyzed. For this, this doctrine proposes examining a) weighing reasonableness, which is a type of legal assessment resorted to when, before the existence of a certain antecedent (e.g., income), a certain obligation is demanded (e.g., tax), in which case it must be established whether it is equivalent or proportionate; b) reasonableness of equality, which is the type of legal assessment that starts from the premise that equal antecedents must have equal consequences, without arbitrary exceptions; c) reasonableness in the end, at this point we assess whether the objective to be achieved does not offend the ends envisioned by the legislator with its approval. Within this same analysis, it is not enough to affirm that a means is reasonably adequate to an end; it is also necessary to verify the nature and size of the limitation that a personal right must bear through that means. Thus, if the same end can be achieved by finding another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable...” It adds that, in this sense, the Constitutional Court, in the judgment that analyzed the optional consultation of constitutionality on legislative file 19.922, stated:

"Now then, from the foregoing, it is clearly inferred that the right to retirement can be subjected to limitations, just like any other fundamental right. The foregoing entails that a person does not have a right to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, since otherwise, conditions could be created that make the system financially unsustainable, which would ultimately cause the right to retirement to be severely affected, or its exercise not to be entirely possible, given the lack of funds preventing payment to the interested party of the amount of their retirement. In light of this panorama, the Chamber considers that the questioned norms are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Judicial Branch Pension and Retirement Regime, for which parameters and requirements were set based on the opinion of experts received by the Special Commission that reviewed legislative file number 19.922, as well as technical studies that confirmed the existence of a problem that could affect the sustainability of the aforementioned Regime, and for which they issued a series of recommendations. In this sense, by verifying that the variation of requirements provided for by section 224 and the period set by Transitory Provision VI of the bill have the ultimate purpose of guaranteeing the right to retirement of judicial servants, the Chamber dismisses the alleged defect” (judgment 2018-005758).

In addition to the foregoing, it argues that what was alleged by the appellants was already the subject of analysis by the Constitutional Chamber regarding the existence of technical parameters (reasonableness) to provide a basis for the analyzed reform.

• 8)Absence of technical, scientific, and economic studies that justify the modifications: it points out that the Constitutional Chamber, in the judgment issued upon hearing the optional consultation of constitutionality on legislative file 19.922, stated with regard to the topic, the following:

"In this sense, by verifying that, contrary to what is affirmed in the initial brief, a technical criterion does exist that supports the parameter set by the bill with respect to the reference salary for calculating the pension, the Court dismisses the existence of the alleged defect.

Moreover, with respect to the second of the allegations by the consultants, the Chamber considers that, in substance, what is questioned is whether the parameters that served as a basis for setting the requirements for obtaining the right to a pension were suitable or not, an extreme that does not imply that the norm is unconstitutional, as the consultants believe, hence it is considered that the defect is non-existent” (judgment 2018-005758).

It points out that in the minutes of the committee discussion of legislative file number 19.922, it is indicated that the technical study of the Institute of Research in Economic Sciences of the University of Costa Rica, included the participation of the Technical Committee created by the Judicial Branch, it thus being understood that the law under analysis does not respond to arbitrary or capricious criteria—a situation already analyzed by the Constitutional Chamber—, so it does not imply any violation of the constitutional principles of reasonableness and proportionality.

• 9)That section 224 of Law No. 9544 does not respond to mandatory criteria of : it indicates that regarding this topic, the Constitutional Chamber, in judgment No. 05758-2018 of April 12, 2018, stated:

"From the reading of the aforementioned norms, it is inferred that they establish the requirements that every servant must meet in order to obtain a pension chargeable to the Judicial Branch Pension and Retirement Regime. Now then, in the judgment of this Chamber, the fact that no differentiation is made on the basis of gender in the terms mentioned by the consultants does not entail a defect of unconstitutionality, since it must be taken into account that the requirements for obtaining a retirement benefit respond to objective criteria that are set based on technical studies, which establish requirements such as the age and the number of quotas that a person must meet to guarantee the sustainability of a pension regime, regardless of the contributor's gender. It must be kept in mind that the consultants do not provide technical studies to sustain the alleged unconstitutionality, in such a way as to objectively justify making the differentiation that is missed, which does not mean that, in the future, this Court, through a posteriori control of constitutionality, will not analyze the grievance raised based on relevant technical studies that may eventually be provided. On the other hand, the studies mentioned in the consultation refer to other assumptions that are not acceptable, as they have to do, among other things, with working hours, income, etc. Finally, it cannot be ignored that, contrary to what is alleged in the consultation, the Institute of Research in Economic Sciences (IICE), in official letter No. 186-2017 of August 18, 2017, clearly and precisely establishes the following:

"c. Age required for retirement and differences by gender The guidelines established for retirement age in the Majority Opinion are the same as those used in the IICE 3 and IICE 4 frameworks: 65 years for ordinary retirement. For retirement by service, a gender difference is established analogous to that established in the IVM regime of the CCSS: 62 years for men, and 60 years for women. The IICE team does not consider it necessary to establish additional distinctions on the basis of gender." By virtue of the foregoing, the Court considers that the alleged defect is not present.” It states that the allegation raised—according to which Article 224 of the challenged law does not address gender criteria—refers to an issue that was already analyzed by the Constitutional Chamber, without entailing any defect of constitutionality and therefore it deems that it must be rejected.

He concludes by stating that, according to what has been reported, the action of unconstitutionality must be declared without merit because there is no violation of constitutional principles, nor have Articles 9, 11, 28, 33, 34, 40, 50, 51, 65, 73, 74, 121 subsections 13) and 22), 152, 154, 167, 177, 188, 189, and 190 of the Constitución Política been infringed.

159.- On April 1, 2019, Luis Roberto Madrigal Zamora appears in his capacity as General Secretary of the Sindicato de la Defensa Pública (SINDEPU) and states that by resolution of 1:05 p.m. on February 22, 2019, published in Boletín Judicial No. 57 of March 21, 2019, interested parties and all those persons who appear as parties in pending matters in which the application of the challenged norms is discussed, or those with a legitimate interest, were notified of the actions of unconstitutionality being processed under case file number 18-007819-0007-CO filed by Mario Mena Ayales and others, seeking a declaration of unconstitutionality of Law 9544; a notice given so that interested parties could contribute regarding the admissibility of said actions. He indicates that, in accordance with the provisions of Article 75 of the Ley de la Jurisdicción Constitucional, by acting as General Secretary of the Sindicato de la Defensa Pública, he is legally authorized to represent the collective rights and interests of all the members of that association. He states that the actions of unconstitutionality filed challenge Law 9544, which reformed the retirement and pension system (régimen de jubilaciones y pensiones) of judicial employees. He points out that, upon reviewing the existing documentation, it is observed that the procedure for the approval of laws and the corresponding consultation has indeed been violated, and therefore he considers it appropriate to decree its unconstitutionality. He adds that the Sindicato de la Defensa Pública is composed of workers of the Defensa Pública, which is a dependency of the Poder Judicial – in accordance with Articles 150 to 159 of the Ley Orgánica del Poder Judicial – so there is a legitimate interest in having them considered as parties to the process because what is eventually resolved would have legal effects on this collective. He states that, for this reason, in his capacity as General Secretary of the Sindicato de la Defensa Pública (SINDEPU), he adheres in all its extremes and claims to the actions of unconstitutionality filed and requests that they be recognized as an interested party, in collaboration (coadyuvancia), as they represent collective interests. He likewise requests that the actions filed be declared with merit and that the unconstitutionality of the challenged norms be decreed.

160.- In a document filed with the Secretariat of the Chamber on April 12, 2019, Enriqueta Rojas Aguilar, identity card 5-223-794, Crissiam Wong Vega, identity card 01-0742-019, Ligia Vanesa Víquez Gómez, with identity card 01-0824-0057, and Zulay Campos Hernández, bearer of identity card 1-836-391 appear and request that, in their condition as persons directly affected by the enactment of Law number 9544, which reforms the Ley Orgánica del Poder Judicial, they be considered as having joined the actions of unconstitutionality being processed in this case file and be allowed to contribute in their arguments. They point out that the legitimate interest they have in this action stems from their condition as judicial officials for more than 20 continuous years. They consider that the legal modification carried out to the detriment of the conditions for opting for retirement or a pension in the Poder Judicial affects them directly, and, by virtue thereof, they believe they are covered by the right to appear in this process and challenge the unconstitutionality of Law 9544. They add that, with the enactment and entry into force of Law 9544, which reformed the Ley Orgánica del Poder Judicial, they believe that several norms established in the Constitución Política in its articles 9, 28, 33, 34, 39, 40, 41, 45, 50, 51, 53, 73, 74, 167, and 173 have been transgressed, as well as international conventions ratified by the country such as the American Convention on Human Rights in its Article 8, subsection a); Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women "CONVENCIÓN DE BELÉM DO PARÁ," in its Articles 7, 8, and subsequent articles; as well as the Convention on the Elimination of All Forms of Discrimination against Women in its Articles 11 and subsequent articles. They argue that they join this action of unconstitutionality, but in addition, they consider it necessary to expand the arguments for which the constitutionality of Articles 224 and 224 bis can also be questioned. They point out that the Constitución Política recognizes the right to retirement (jubilación) as a human right, considering that such articles establish a tax burden that renders that right enshrined in the Constitución Política nugatory and, therefore, grossly injures their fundamental rights. They indicate that these articles modify the formula, conditions, and requirements for opting for the right to retirement; new parameters that include a way of calculating the pension corresponding to the sum of the last 240 salaries, which they estimate affects – in a pernicious way – the result of the retirement amount, from which, in addition, an additional percentage must be subtracted that ends up reducing the retirement amount to the extreme that the official will end up obtaining a monthly amount of less than 55% of their salary. They recall that the right to retirement is a fundamental right and, therefore, the deterioration of retirement constitutes a detriment to that human right in contravention of the provisions of the Constitución Política in Articles 33 and 71, as well as in international conventions, citing Article 18, paragraph 102 of the ILO. They estimate that this reform imposes an excessive, disproportionate tax burden that worsens the percentage of the final retirement amount, which they consider definitively becomes a reform with confiscatory results from the perspective of the final retirement amount versus the last salary of the worker in their active condition. They state that they are aware of the existence and validity of the principle of legal immutability; however, they consider that this principle cannot be applied unrestrictedly, and the principle of proportionality enshrined in the Constitución Política must be respected, since, in practice, the reform achieves a reduction of up to 50% of the amount the retiree will receive in relation to the salary they had before declaring that right. They estimate that the reform is also abusive, since officials who had worked more than 20 years in the Poder Judicial, and who had contributed during all that time, were offered completely different retirement conditions than the current ones, coupled with the fact that, with the reform, not only is the retirement age increased but the economic burdens relating to contributions are also increased, while they are offered benefits that are disadvantageous and more reduced than those granted by other pension systems in which significantly lower percentages are contributed than those of the Poder Judicial, and in the end they obtain a retirement amount similar to what is obtained in the Poder Judicial with this reform, all of which they estimate has been approved to the detriment of their rights to opt for a dignified, decent retirement commensurate with the fees that for so many years they have contributed to access such a constitutionally recognized human right. They consider that these modifications established by the new legislation are not only excessive, but they vary aspects of an essential nature regarding a right that, constitutionally, is recognized as a human right, and that the State could only change by respecting the limits of the principle of proportionality in its strictest conception; a situation that does not occur in this case because the reform incorporates so many tax burdens on retirement that it is greatly worsened and impoverished. They state that in addition, Article 224 of the reform establishes the legal requirements for opting for retirement, omitting any distinction between the age of a man and a woman to opt for that right, referring only to the age range and time worked to achieve retirement, equating the age between men and women, without any gender distinction. They recall that, historically, women have been burdened with domestic chores, the raising and education of children, as well as all kinds of household tasks which, combined with the tasks performed during the workday, constitute an "extra" burden for which they receive no remuneration or recognition, and that these tasks and burdens are not borne by men. They point out that, without a doubt, all these heavier household, family, and other domestic chores, which constitute an extra workday that has burdened women, is also a form of violence, suffered for centuries, and responding to historically unequal power relations between men and women. They point out that it cannot be overlooked that women, in addition to having that extra burden of domestic work imposed by a patriarchal tradition, are those to whom motherhood corresponds, and it is no secret that many of them must assume that role alone as single mothers and heads of household, with the consequent physical, emotional, and integral wear and tear that these tasks generate along with the work of the ordinary workday; aspects that, at the time of enacting a law involving women, cannot be alien or foreign, hence many legislations worldwide, aware of these domestic burdens that for years and centuries women have borne simply by their condition, have chosen to recognize a reduction in the age for women to opt for the right to retirement. They state that those modern, democratic legislations committed to equalizing relations between men and women are those that make a distinction in retirement age based on gender, which is missed in Costa Rica despite the country having signed and ratified International Conventions, showing concern for and recognition of the different forms of violence against women, and having assumed the commitment to implement effective mechanisms to prevent all forms of violence against women, including mechanisms at the legal level. They estimate that denying the possibility for women to attain the right to retirement at an earlier age undoubtedly constitutes a way of making invisible and ignoring in women that extra burden of domestic chores that for centuries they have borne, but it also constitutes a form of discrimination against women and in this case, against the female judicial official specifically, since in the country there are other pension systems that do make the distinction in favor of women regarding age, but this recent legal reform they challenge denies such a possibility by equating the requirements for men and women. They argue that this constitutes a transgression of International Conventions such as the Convention of Belém do Pará (Articles 7 and 8), as well as the Convention on all forms of discrimination against women (Articles 11 and subsequent), which have been ratified by Costa Rica. They add that the visible difference in Article 224 bis, which regulates the possibility of early retirement, insofar as it states that women must have reached at least 60 years of age and men at least 62 years of age, is not considered sufficient to meet the parameters required by the conventionality control given that it refers to a form of retirement different from the ordinary one, coupled with the fact that this article establishes other guidelines when assessing the amount corresponding to the sum to be obtained as the salary corresponding to retirement, and these guidelines, in their opinion, are harsher than those used in the case of ordinary retirement, which also implies a pecuniary sanction by imposing other pension calculation parameters. They conclude by requesting that the Sala Constitucional admit this filing and that they be recognized as directly interested parties in this process. They likewise request that this action be declared with merit and that the unconstitutionality of Law 9544 be ordered.

161.- In a brief filed on April 22, 2019, Karol Monge Molina appears in her capacity as special judicial representative of ADALGISA GUILLEN FLORES, of legal age, single, Secretary, resident of Guanacaste, Liberia, bearer of identity card 5-0210-0201, ADOLFO SOTO MUÑOZ, of legal age, married, Judicial Employee, resident of Cartago, central, bearer of identity card number 3-0300-0050, ADRIAN ARROYO ACOSTA, of legal age, married, Attorney, resident of San José Hatillo, bearer of identity card 1-0903-0887, ADRIAN COTO PEREIRA, of legal age, divorced, Attorney, resident of Cartago, Turrialba, bearer of identity card 3-0307-0851, ADRIAN RODOLFO BARQUERO MONGE, of legal age, married, Accountant, resident of Cartago, Central, bearer of identity card 3-0339-0441, ADRIANA ALVAREZ BRICEÑO, of legal age, divorced, Judicial Technician, resident of Guanacaste, Santa Cruz, bearer of identity card 1-0639-0343, ADRIANA SOTO GONZÁLEZ, of legal age, divorced, Attorney, resident of Heredia, Santa Barbara, bearer of identity card 1-O844-0124, ADRIANA STELLER HERNÁNDEZ, of legal age, married, Administrator, resident of Heredia, San Rafael, bearer of identity card 1-0803-0253, ALBA BARRIOS SALDAÑA, of legal age, married, Judicial Technician 1, resident of Limón, Talamanca, bearer of identity card 7-0103-0498, ALBERTH SOLANO ABARCA, of legal age, single, Criminologist, resident of San José, Aserrí, bearer of identity card 1-0762-0577, ALBERTO MORA MORA, of legal age, married, Judicial Expert, resident of Cartago, La Unión, bearer of identity card 1-1023-0353, ALCIONI VASQUEZ RETANA, of legal age, married, Administrator, resident of San José, Hatillo, bearer of identity card 1-0643-0891, ALEJANDRA PEREZ CORDERO, of legal age, single, Attorney, resident of Guanacaste Liberia, bearer of identity card l-l 030-0994, ALEJANDRO ALCIONE CASTRO LAO, of legal age, married, Administrator, resident of San José, San Francisco, bearer of identity card 1-0836 0068, ALEJANDRO FONSECA ARGUEDAS, of legal age, married, Business Administrator, San José, Calle Blancos, bearer of identity card l 0771-0399, ALEJANDRO SOLANO ROJAS, of legal age, married, Judicial Technician, resident of Limón, Centro, bearer of identity card 1-0519-0729. ALEXANDER MIGUEL FONSECA PRADO, of legal age, married, IT Specialist, resident of Alajuela, Cantón Central, identity card 1-0779-0738, ALEXANDER PICADO GAMBOA, of legal age, single, Attorney, resident of San José, Aserrí, bearer of identity card 1-0935-0908, ALEXANDER TENORIO CAMPOS, of legal age, single, Public Administrator, resident of San José, Desamparados, bearer of identity card 5-0202-0075 ALEXANDER VIACHICA ESPINOZA, of legal age, single, Investigator, resident of San José, Alajuelita, bearer of identity card 1-0777-O115 ALEXANDRA MADRÍZ SEQUEIRA, of legal age, divorced, Administrator, resident of San José, Desamparados, bearer of identity card 1-0870-0450, ALEXANDRA MORA STELLER, of legal age, married, Administrator, resident of Alajuela, Central, bearer of identity card 2-0485-0404, ALEXANDRA VILLEGAS VELAZQUEZ, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, bearer of identity card 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, of legal age, divorced, Inmate Transport Officer, resident of Limón, Central, bearer of identity card 7-0103-0253, ALEYDA MOJICA MARIN, of legal age, married, Social Worker, resident of Puntarenas, Central, bearer of identity card 6-0229-0409, ALFREDO SALAZAR VENEGAS, of legal age, married, Coordinator, resident of San José, Central, bearer of identity card 1-0867-0065, ALICIA MELENDEZ LEIVA, of legal age, common-law marriage, Judicial Technician, resident of Guanacaste, Liberia, bearer of identity card 5-0238-0070, ALLAN CRUZ VILLALOBOS, of legal age, married, Criminologist, resident of Cartago, Oreamuno, bearer of identity card 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, of legal age, married, Judicial Employee, resident of Alajuela, Central, bearer of identity card 2-0443-0555, ALLEN CORDOBA CHAVES, of legal age, married, Chief of Investigation, resident of Guanacaste, Liberia, bearer of identity card 5-0271-0887, ALMA CUNNINGHAM ARANA, of legal age, divorced, Administrative Technician, resident of San José, San Cayetano, bearer of identity card 7-0066-0882, ALONSO ROMERO FALLAS, of legal age, single, Judicial Investigator, resident of San José, Curridabat, bearer of identity card 1-0860-0327, ALVARO ÁLVAREZ GUTIÉRREZ, of legal age, married, Security Officer, resident of Guanacaste, Liberia, bearer of identity card 5-0234-0995, ALVARO ENRIQUE GONZALEZ QUIROS, of legal age, divorced, Attorney, resident of Cartago, Central, bearer of identity card 3-0334-0081, ALVARO JUSTO QUIROS SÁNCHEZ, of legal age, divorced, Attorney, resident of Heredia, Mercedes Norte, bearer of identity card 1-0669-0209, ALVARO ORTUÑO MÉNDEZ, of legal age, married, Judicial Employee, resident of San José, Central, bearer of identity card 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, of legal age, married, Administrator, resident of San José, Alajuelita, bearer of identity card 1-0828~0553, ANA CRISTINA LIZANO RODRÍGUEZ, of legal age, married, Social Worker, resident of San José, Guadalupe, bearer of identity card 1-0693-0522, ANA ISABEL MOYA CHACON, of legal age, married, Attorney, resident of Cartago, Oreamuno, bearer of identity card 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, of legal age, married, Psychologist, resident of Heredia, Central, bearer of identity card 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, of legal age, divorced, Judicial Coordinator, resident of Guanacaste, Santa Cruz, bearer of identity card 5-0248-0978, ANA PATRICIA ROBLES MARTÍNEZ, of legal age, married, Judicial Coordinator, resident of Limón, Central, bearer of identity card 7-0102-0421, ANA RUTH ORTEGA CHAVARRIA, of legal age, single, Judicial Employee, resident of Guanacaste, Liberia, bearer of identity card 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, of legal age, widow, Social Worker, resident of San José, Goicoechea, bearer of identity card 1-0745-0116, ANA SONIA FUENTES GÓMEZ, of legal age, divorced, Judicial Employee, resident of Cartago, Central, bearer of identity card 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, of legal age, married, Judicial Technician, resident of Alajuela, Tambor, bearer of identity card 2-0496-0746, ANA YANCY ZUÑIGA FERNÁNDEZ, of legal age, married, Administrative Assistant, resident of Guanacaste, Santa Cruz, bearer of identity card 1-0855-091 19, ANAIS CAROLINA BOLAÑOS ZELEDÓN, of legal age, common-law marriage, Psychologist, resident of Heredia, San Isidro, bearer of identity card 1-0902-0620, ANAYANCI RODRÍGUEZ QUESADA, of legal age, married, Microbiologist, resident of Heredia, Barva, bearer of identity card 1-0734-0966. ANDREA SOTO DÍAZ, of legal age, married, Judicial Technician, resident of Heredia Central, bearer of identity card 4-0161-0797, ANDRES MÉNDEZ BONILLA, of legal age, divorced, Administrator, resident of San José, Desamparados, bearer of identity card 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, of legal age, divorced, Attorney, resident of San José, Goicoechea, bearer of identity card 1-0779-0938, ANGELA ROBLES SIBAJA, of legal age, married, Judicial Employee, resident of Heredia, San Francisco, bearer of identity card 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNANDEZ, of legal age, married, Administrator, resident of San José, Desamparados, bearer of identity card 7-0107-0369, ARMANDO AGÚERO ARAYA, of legal age, married, Judicial Employee, resident of Alajuela, Central, bearer of identity card 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, of legal age, married, Judicial Investigator, resident of Cartago, Corralillo, bearer of identity card 3-0325-0085, ARMANDO EMILIO JIMENEZ VARGAS, of legal age, married, Supervisory Auditor, resident of Alajuela, San Ramón, bearer of identity card 6-0233-0378, ARSENIO MORA BARBOZA, of legal age, married, Judicial Expert, resident of San José, Puriscal, bearer of identity card 1-0850-0664, ARTURO FAERRON MONTOYA, of legal age, single, Judicial Expert, resident of San José, Desamparados, bearer of identity card 5-0247-0765, AURA YANES QUINTANA, of legal age, single, Administrator, resident of Cartago, Central, bearer of identity card 6-0209-0198, AUREA BARBOZA CASTILLO, of legal age, married, Administrative Technician, resident of Guanacaste, Liberia, bearer of identity card 5-0233-0938, BERNY VALVERDE JIMENEZ, of legal age, married, Judicial Expert, resident of San José, Puriscal, bearer of identity card 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, of legal age, divorced, Attorney, resident of Guanacaste, Nicoya, bearer of identity card 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, of legal age, married, Social Worker, resident of San José, Desamparados, bearer of identity card 1-0747-0521, BONNIE PATRICIA TORRES ROSALES, of legal age, single, Judicial Coordinator, resident of Guanacaste, Liberia, bearer of identity card 1-0750-0985, BRENDA ALPÍZAR JARA, of legal age, divorced, Administrator, resident of Cartago, La Unión, bearer of identity card 1-0752-0082, CARLOS ABRAHAM CAMPBELL, of legal age, single, Detainee Custodian, resident of Limón, Central, bearer of identity card 7-0098-0511, CARLOS AGUILAR ORTIZ, of legal age, single, Administrative Assistant, resident of San José, Curridabat, bearer of identity card 1-0706-0717, CARLOS ALBERTO CHACON CHINCHILLA, of legal age, married, IT Specialist, resident of Alajuela, Central, bearer of identity card 1-0865-0136, CARLOS ALBERTO QUESADA HERNANDEZ, of legal age, single, Administrative Technician 2, resident of Limón, Central, bearer of identity card 7-0077-0276, CARLOS ALBERTO SOLANO PEREZ, of legal age, married, Judicial Communicator, resident of Puntarenas, Golfito, bearer of identity card 6-0211-0367, CARLOS ARNOLDO BERMUDEZ AGUILAR, of legal age, divorced, IT Specialist, resident of San José, Coronado, bearer of identity card 1-0915-0817, CARLOS BERMUDEZ CHAVES, of legal age, married, Attorney, resident of Guanacaste, Nicoya, bearer of identity card 1-0880-0378, CARLOS CALDERÓN BARRIOS, of legal age, married, Attorney, resident of Cartago, Turrialba, bearer of identity card 3-0335-0644, CARLOS DARIO ÁLVAREZ ARRIETA, of legal age, divorced, Attorney, resident of Alajuela, San Carlos, bearer of identity card 2-0463-0645, CARLOS ENRIQUE TORRES ACUÑA, of legal age, single, Security Officer, resident of San José, Desamparados, bearer of identity card 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, of legal age, married, resident of Cartago, San Nicolás, bearer of identity card 1-0748-0121, CARLOS FALLAS SOLIS, of legal age, married, Bachelor of Information Technology, resident of San José, Desamparados, bearer of identity card 1-0851-0582, CARLOS GONZALEZ MARTÍNEZ, of legal age, married, Detainee Custodian, resident of Cartago, Central, bearer of identity card 3-0279-0596, CARLOS HUMBERTO HERRERA SOLIS, of legal age, married, Attorney, resident of Cartago, La Unión, bearer of identity card 1-0837-0484, CARLOS LUIS CORRALES JIMENEZ, of legal age, married, Administrator, resident of Alajuela, Naranjo, bearer of identity card 2-0428-0157, CARLOS LUIS FRUTOS VASQUEZ, of legal age, married, Judicial Employee, resident of San José, Puriscal, bearer of identity card 6-01 57-0030, CARLOS LUIS GARCIA APARICIO, of legal age, married, Auditor, resident of San José, Central, bearer of identity card 1-0860-0752, CARLOS LUIS GUTIERREZ BARQUERO, of legal age, married, Judicial Employee, resident of San José, Coronado, bearer of identity card 6-0164-0434, CARLOS LUIS VASQUEZ MEDINA, of legal age, married, Judicial Employee, resident of Limón, Guácimo, bearer of identity card 7_0086-0146, CARLOS MONGE NAVARRO, of legal age, common-law marriage, Judicial Employee, resident of San José, Pérez Zeledón, bearer of identity card 6-0251-0I66, CARLOS PORRAS MORERA, of legal age, married, Investigation Officer, resident of San José, Tibás, bearer of identity card 5-0247-0389, CARLOS QUIRÓS TENORIO, of legal age, married, Technician, resident of Alajuela, San Ramón, bearer of identity card 1-0895-0474, CARLOS VENEGAS AVILES, of legal age, married, Attorney, resident of Guanacaste, Liberia, bearer of identity card 1-0899-0725, CARLOS ALBERTO PAEZ RODRÍGUEZ, of legal age, married, Administrative Technician, resident of San José, Hatillo 4, bearer of identity card 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, of legal age, resident of San José, Coronado, bearer of identity card 1-0903-0553, CARMELINA TAYLOR TAYLOR, of legal age, married, Judicial Technician, resident of Limón, Central, bearer of identity card 7-0068-0562, CAROLINA CHACON MEJIA, of legal age, single, Secretary, resident of San José, Desamparados, bearer of identity card 1-0741-0425, CATALINA ESPINOZA SAENZ, of legal age, divorced, Evaluator, resident of Alajuela, Central, bearer of identity card 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, of legal age, divorced, Communications Technician, resident of Puntarenas, Corredores, bearer of identity card 6-0198-0289, CESAR AUGUSTO BARRANTES ARRIETA, of legal age, married, Assistant Prosecutor, resident of Alajuela, Central, bearer of identity card 1-0934-0951, CINTHIA MAGALY VEGA CÉSPEDES, of legal age, single, Coordinating Technician, resident of Heredia, Santa Bárbara, bearer of identity card 4-0161-0385, CHIREY TAPIA MARTINEZ, of legal age, married, Administrative Technician, resident of Cartago, La Unión, bearer of identity card 1-0912-0363, CRISTIAN CORRALES RODRIGUEZ, of legal age, divorced, Canine Handler, resident of Alajuela, Naranjo, bearer of identity card 2-0473-0323, CRISTIAN GÓMEZ SOLIS, of legal age, married, Public Accountant, resident of San José, Desamparados, bearer of identity card 3-0333-0388, CRUZ PORRAS BOLAÑOS, of legal age, divorced, Social Worker, resident of Cartago, La Unión, bearer of identity card 5-02 13-0606, DANIA ARIAS SANDOVAL, of legal age, married, Bachelor of Accounting, resident of San José, Zapote, bearer of identity card 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, of legal age, married, Chemist, resident of Heredia, San Rafael, bearer of identity card 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, of legal age, married, Specialized Technician, resident of San José, Alajuelita, bearer of identity card 1-0820-0013, DEBORA RIVERA ROMERO, of legal age, married, Social Worker, resident of San José, Coronado, bearer of identity card 1-0702-0210, DELIA BAYLEY BLAKE, of legal age, married.

Administrative Technician, resident of San José, Goicoechea, holder of identity card 7-0106-0462, DENIA ZUÑIGA ROSALES, of legal age, married, Judicial Employee, resident of Guanacaste, Santa Cruz, holder of identity card 5-0255-0075, DENNIS MADRIGAL QUESADA, of legal age, single, Administrator, resident of San José, Central, holder of identity card 1-0772-0406, DERRIL VILLEGAS SALAZAR, of legal age, married, Specialized Technician, resident of San José, Coronado, holder of identity card 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, of legal age, married, Criminologist, resident of San José, Tibás, holder of identity card 1-0844-0663, DIDIER JOSE MONTEALEGRE BEJARANO, of legal age, married, Industrial Engineer, resident of Alajuela, Central, holder of identity card 1-0998-0884, DIEGO RODRÍGUEZ ZUMBADO, of legal age, married, Statistician, resident of Heredia, Barva, holder of identity card 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, of legal age, married, Administrator, resident of Alajuela, San Mateo, holder of identity card 2~0403-0367, DINORAH FLORES VILLALOBOS, of legal age, widow, Judicial Employee, resident of San José, Curridabat, holder of identity card 1-0762-0614, DIXON LI MORALES, of legal age, single, Industrial Engineer, resident of Heredia, San Francisco, holder of identity card 1-0839-0369, DONALDO BERMUDEZ RODRÍGUEZ, of legal age, married, Judicial Investigator, resident of Puntarenas, El Roble, holder of identity card 6-0260-0554, DONY DANIEL SOLANO ARAYA, of legal age, married, Criminalist, resident of San José, Pérez Zeledón, holder of identity card 6-0270-0431, DORIS ROJAS GUZMÁN, of legal age, married, Judicial Coordinator 1, resident of San José, Goicoechea, holder of identity card 1-0760-0176, DYALA LINKIMER VALVERDE, of legal age, single, Auditor, resident of San José, Moravia, holder of identity card 2-0394-0312, EDDIE JOSE DIAZ SOIORZANO, of legal age, married, Attorney, resident of Guanacaste, Tilarán, holder of identity card 5-0202-0075, EDDY JAVIER RODA ABARCA, of legal age, married, Attorney, resident of San José, Moravia, holder of identity card 1-0607-0953, EDGAR GERARDO MORA ROMERO, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, holder of identity card 5-0294-0965, EDUARDO BRICEÑO CABALCETA, of legal age, Judicial Employee, resident of San José, Central, holder of identity card 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-738-0392, EDUARDO FALLAS BRENES, of legal age, common-law union, Head of Investigation 3, resident of Alajuela, Central, holder of identity card 1-0588-0355, EDUARDO GÓMEZ VARGAS, of legal age, married, Judicial Employee, resident of Heredia, holder of identity card 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, of legal age, divorced, Physicist, resident of Heredia, Barva, holder of identity card 8-0066-0926, EDUARDO MOYA ROJAS, of legal age, single, Computer Engineer, resident of San José, Central, holder of identity card 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, of legal age, married, Attorney, resident of Cartago, Central, holder of identity card 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, of legal age, divorced, Assistant Prosecutor, resident of Alajuela, San Ramón, holder of identity card 2-0484-0865, EDWIN HERRERA CAMBRONERO, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of identity card 1-0578-0466, EDWIN MATA ELIZONDO, of legal age, single, Attorney, resident of San José, Central, holder of identity card 1-0801-0067, EIBOR PANIAGUA MARÍN, of legal age, single, Head of Investigation, resident of Cartago, Turrialba, holder of identity card 3-0323-0494, EIDY ARAYA DÍAZ, of legal age, single, Judicial Coordinator, resident of Limón, Central, holder of identity card 7-0080-0880, EIMY ESPINOZA ANCHÍA, of legal age, divorced, Judicial Coordinator, resident of Puntarenas, Golfito, holder of identity card 6-0026-0919, ELIAS APU VARGAS, of legal age, single, Security Officer, resident of Guanacaste, Liberia, holder of identity card 7-0088-0345, ELISANDRO TREJOS CHÁVES, of legal age, divorced, IT Specialist, resident of San José, Moravia, holder of identity card 1-0871-0722, ELIZABETH BOLAÑOS MENA, of legal age, married, Administrator, resident of San José, Goicoechea, holder of identity card 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, of legal age, married, Administrator, resident of San José, Central, holder of identity card 2-0505-0891, ELMER HERNÁNDEZ CASTILLO, of legal age, married, Administrator, resident of Guanacaste, Santa Cruz, holder of identity card 5-0247-0005, ELMER ORTIZ OBANDO, of legal age, married, Attorney, resident of San José, Desamparados, holder of identity card 2-0513-0201, ELPIDIO CALDERON CHAVES, of legal age, single, IT Engineer, resident of San José, Hatillo, holder of identity card 6-0211-0169, ELVIN VARGAS SALAZAR, of legal age, divorced, Bachelor's Degree in Accounting, resident of San José, Alajuelita, holder of identity card 6-0164-0923, EMILCE MILEIDY GARCIA SOLANO, of legal age, married, Psychologist, resident of San José, Aserrí, holder of identity card 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, of legal age, divorced, Attorney, resident of San José, Aserrí, holder of identity card 1-0905-0693 EMMA LÓPEZ RAMÍREZ, of legal age, married, Administrator, resident of Cartago, Central, holder of identity card 6-0300-0418, ERICK ANTONIO MORA LEIVA, of legal age, married, Economist, resident of Cartago, La Unión, holder of identity card 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, of legal age, married, Attorney, resident of Guanacaste, Nicoya, holder of identity card 1-0990-0489, ERICK CASTRO ZAMORA, of legal age, divorced, Judicial Expert, resident of San José, Tibás, holder of identity card 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, of legal age, married, IT Specialist, resident of Limón, Central, holder of identity card 1-0617-0454, ERICK LEWIS HERNÁNDEZ, of legal age, married, IT Specialist, resident of Heredia, San Francisco, holder of identity card 4-0157-0803, ERICK RODRÍGUEZ MORA, of legal age, common-law union, Judicial Expert, resident of San José, Alajuelita, holder of identity card 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, of legal age, married, Training Manager, resident of Heredia, Santa Bárbara, holder of identity card 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, of legal age, divorced, Bachelor's Degree in Administration, resident of Heredia, Barva, holder of identity card 1-0921-0625, ERIKA LEIVA DÍAZ, of legal age, married, Judicial Employee, resident of San José, Goicoechea, holder of identity card 1-0905-0024, ERIKA MORALES CUBILLO, of legal age, married, Judicial Coordinator, resident of Puntarenas, Central, holder of identity card 1-0885-0266, ERIKA VILLALOBOS SOLANO, of legal age, married, IT Specialist, resident of Alajuela, San Rafael, holder of identity card 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, of legal age, single, Specialized Technician, resident of Cartago, Juan Viñas, holder of identity card 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, of legal age, single, Criminologist, resident of Heredia, Central, holder of identity card 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, of legal age, single, Judicial Coordinator, resident of Puntarenas, Comedores, holder of identity card 6-0237-0005, ESTHER JIMÉNEZ AVILES, of legal age, married, Social Worker, resident of Puntarenas, Central, holder of identity card 1-0835-0109, EUGENIA ARIAS QUESADA, of legal age, single, IT Specialist resident of Cartago, Central, holder of identity card 3-0287-0420 EUNICE OBANDO SOLANO, of legal age, single, Judicial Employee, resident of San José, Central, holder of identity card 7-0079-0152 EVA MARÍA ALVARADO RODRÍGUEZ, of legal age, divorced, Social Worker, resident of Alajuela, San Ramón, holder of identity card 2-0377-0039, EVERALDO ALFARO FERLINI, of legal age, married, Criminalist resident of San José, Coronado, holder of identity card 1-0771 0854, EZEQUIEL ÁLVAREZ CABEZAS, of legal age, married, Judicial Employee resident of Heredia, Santo Domingo, holder of identity card 1 1046-0548, FABIAN GORDIANO MONTERO MONTERO, of legal age, married Judicial Employee, resident of San José, Coronado, holder of identity card 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, of legal age divorced, Administrator, resident of San José, Central, holder of identity card 1-0822-0756, FIORELLA PÉREZ FONSECA, of legal age married, Administrative Technician 1, resident of Guanacaste, Liberia, holder of identity card 5-0300-0115, FLOR BRENES HERNANDEZ of legal age, single, Secretary, resident of San José, Central, holder of identity card 1-0886-0825, FLOR MARÍA MURILLO VINDAS, of legal age, single, Social Worker, resident of Alajuela, Poás, holder of identity card 2-0458-0802, FLORA MARÍA CORDERO ROJAS of legal age, single, Communications Technician, resident of Puntarenas, Esparza holder of identity card 6-0225-0890, FLORIBEL CAMPOS SOLANO, of legal age, married.

Administrator, resident of San José, Curridabat, holder of identity card 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, of legal age, married, Auditor, resident of San José, Tibás, holder of identity card 2-0497-027 1, FLORIBETH PALACIOS ALVARADO, of legal age, married, Attorney, resident of Guanacaste, Santa Cruz, holder of identity card 6-0221-0749, FLORY ROCÍO CAMPOS SANDOVAL, of legal age, single, Secretary, resident of Alajuela, Central, holder of identity card 2-0414-0476, FRANCINI DELGADO LEON, of legal age, divorced, Administrative Assistant, resident of Heredia, San Rafael, holder of identity card 4-0168-0486, FRANCISCO .JOSE BONILLA GUZMÁN, of legal age, divorced, Criminalist, resident of San José, Desamparados, holder of identity card 1-0640-0491 FRANCISCO MURILLO ZUÑIGA, of legal age, single, Services Assistant, resident of San José, Puriscal, holder of identity card 1-0602-0162 FRANCOISE RODRÍGUEZ CORONADO, of legal age, common-law marriage, Psychologist, resident of San José, Curridabat, holder of identity card 1-0944- 0235, FRANK GARCÍA MORAGA, of legal age, married, Detainee Custodian, resident of Guanacaste, Liberia, holder of identity card 5-0298- 0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, of legal age, single, Administrative Technician, resident of Heredia, Santo Domingo, holder of identity card l-0900-Ol 31, FRANZ EDUARDO VEGA ZUÑIGA, of legal age, married, Forensic Physician, resident of Heredia, San Isidro, holder of identity card 3-0292-0396, FREDDY CHAJUD TORRES, of legal age, single, Judicial Employee, resident of Puntarenas, Golfito, holder of identity card 6-0164-0694, FRESSIA REVELES GÓMEZ, of legal age, married, Attorney, resident of Guanacaste, Liberia, holder of identity card 1-0922-0486, GABRIEL BARRANTES PALAFOX, of legal age, married, Investigation Officer, resident of Heredia, Mercedes Norte, holder of identity card 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, of legal age, divorced, Psychologist, resident of San José, Escazú, holder of identity card 1-O725- 0918, GAUDY AGUILAR ALFARO, of legal age, married, IT Professional, resident of Guanacaste, Liberia, holder of identity card 1-0935-0817, GERALD HUERTAS ORTEGA, of legal age, divorced, Specialized Technician 5, resident of San José, Alajuelita, holder of identity card 1-0926- 0977, GERARDO ALVARADO CHAVES, of legal age, married, Planner, resident of Alajuela, Atenas, holder of identity card 2-0378-0401, GERARDO CERVANTES FONSECA, of legal age, married, Judicial Expert, resident of Cartago, Central, holder of identity card 3-0278-0929, GERARDO MONGE BLANCO, of legal age, married, Attorney, resident of San José, Coronado, holder of identity card 1-0720-0430, GERARDO SÁNCHEZ RIVERA, of legal age, single, Judicial Expert, resident of Heredia, San Rafael, holder of identity card 1-0741-0686, GERMAN ESQUIVEL CAMPOS, of legal age, married, Attorney, resident of San José, Alajuelita, holder of identity card 1-0965-0647, GIAN JAVIER MUIR YOWNG, of legal age, single, IT Professional, resident of Alajuela, San Rafael, holder of identity card 3-0300-0955, GILBERTO MORA MOLINA, of legal age, divorced, Investigation Officer, resident of Alajuela, San Carlos, holder of identity card 2-0534-0866, GINA RAMÓN FERNÁNDEZ, of legal age, married, Social Worker, resident of Heredia, Santo Domingo, holder of identity card 1-0791- 0967, GINETHE RETANA UREÑA, of legal age, married, Administrator, resident of San José, Central, holder of identity card 1-0765-0153, GINNETH DURAN CORRALES, of legal age, married, Attorney, resident of San José, Desamparados, holder of identity card 1-0689-0187, GINNETTE AMADOR GODOY, of legal age, married, Chemist, resident of Heredia, Santa Bárbara, holder of identity card 8-0051-0937, GIOVANNY GONZALEZ HERNANDEZ, of legal age, single, Judicial Investigator, resident of San José, Goicoechea, holder of identity card 1- 0956-0895, GISELLE GUTIÉRREZ SOTO, of legal age, married, Chemist, resident of Heredia, Santo Domingo, holder of identity card 2-0408- 0809, GISELLE ROJAS ROJAS, of legal age, single, Secretary, resident of Alajuela, San Carlos, holder of identity card 2-0507-0474, GLADYS NÚÑEZ RIVAS , of legal age, single, Microbiologist, resident of San José, Goicoechea, holder of identity card 5-0185-0742, GLORIA ESTELA ANGULO SMITH, of legal age, widow, Attorney, resident of Cartago, La Unión, holder of identity card 1-0728-0619, GREGORIO JOSÉ HERNÁNDEZ SANDÍ, of legal age, married, Judicial Technician, resident of San José, Turrubares, holder of identity card 1- 1016-0149, GREIVIN HERNÁNDEZ CÓRDOBA, of legal age, divorced, Investigation Officer, resident of Alajuela, San Carlos, holder of identity card 2-0445-0438, GUADALUPE VEGA SEQUEIRA, of legal age, married, Administrator, resident of Guanacaste, Nicoya, holder of identity card 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, of legal age, married, Judicial Investigator, resident of Guanacaste, Liberia, holder of identity card 1-0760-0343, GUILLERMO ROSALES MORA, of legal age, married, Bachelor's in Chemistry, resident of San José, Moravia, holder of identity card 1-0731-0037, GUILLERMO VALVERDE MONGE, of legal age, married, Judicial Investigator, resident of San José, Acosta, holder of identity card 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, of legal age, married, Bachelor's in Law, resident of Heredia, Barva, holder of identity card 6-0222-0170,GUSTAVORODRIGUEZ TENCIO, of legal age, married, Specialized Technician, resident of San José, Santa Ana, holder of identity card 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, of legal age, married, Judicial Technician 2, resident of Limón, Central, holder of identity card 7-0075-0 1 04, HANNIA VANESSA RAMÍREZ PICADO, of legal age, divorced, Business Administrator, resident of San José, Escazú, holder of identity card 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, of legal age, common-law marriage, Communications Technician, resident of Guanacaste, Nicoya, holder of identity card 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, of legal age, common-law marriage, Communications Officer, resident of Guanacaste, Liberia, holder of identity card 5-0242-0405, l-IAZEL ALFARO GONZÁLEZ, of legal age, married, Occupational Health, resident of Alajuela, El Coyol, holder of identity card 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, of legal age, single, Attorney, resident of Cartago, La Unión, holder of identity card 1-0869-0832, HÉCTOR SANTAMARÍA VIQUEZ, of legal age, married, Driver, resident of Alajuela, El Carmen, holder of identity card 1-0908-0937, HEIDY ARAYA PINEDA, of legal age, married, attorney, resident of Alajuela, San Ramón, holder of identity card 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, of legal age, married, Attorney, resident of Limón, Central, holder of identity card 1 - 0 8 1 9 - 0 3 5 4 , Hellen Vanessa Arias Fatjó, of legal age, divorced, Judicial Employee, resident of San José, Central, holder of identity card 1-0788-0682, HENRY CAMACHO ESQUIVEL, of legal age, married, Administrator, resident of Heredia, San Rafael, holder of identity card 4~0156-0291, HENRY MOODIE FEDRICK, of legal age, married, Judicial Technician, resident of Limón, Central, holder of identity card 7-01 12-031 5, HENRY TIJERINO ESPINOZA, of legal age, married, Judicial Employee, resident of Alajuela, San Antonio, holder of identity card 5-0250-0209, HERNÁN VASQUEZ CASTAÑEDA, of legal age, married, Specialized Technician, resident of San José, Zapote, holder of identity card 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, of legal age, married, Assistant Prosecutor, resident of Alajuela, Los Chiles, holder of identity card 1-0826-0702, IGNACIO GERARDO LEPIZ SALAZAR, of legal age, single, Accountant, resident of Heredia, San Pablo, holder of identity card 4-0164-0654, ILEANA MARÍA LEAL ZUÑIGA, of legal age, married, Judicial Technician 3, resident of Puntarenas, Central, holder of identity card 6-0196-0131, ILEANA RIVERA BLANDÓN, of legal age, single, Psychologist, resident of Alajuela, San Ramón, holder of identity card 1-0822-0815, ILSE MARÍA GONZÁLEZ DOSMAN, of legal age, married, Judicial Coordinator, resident of Puntarenas, Esparza, holder of identity card 6-0240-0588, INDIRA ALFARO CASTILLO, of legal age, single, Systems Engineer, resident of Alajuela, San Ramón, holder of identity card 2-0462-0902, INEL GIBBONS GÓMEZ, of legal age, married, Judicial Coordinator, resident of Limón, Central, holder of identity card 7-0109-0072, INGRID ANGULO SANCHEZ, of legal age, single, Administrative Technician 2, resident of Guanacaste, Liberia, holder of identity card 5-0285-0560, INGRID ARAYA LEANDRO, of legal age, common-law marriage, Psychologist, resident of Cartago, Dulce Nombre, holder of identity card 1-0949-0945, INGRID SANOU KARLSON, of legal age, divorced, Microbiologist, resident of San José, Goicoechea, holder of identity card 1-0593-0629, INOCENCIO GÓMEZ OBANDO, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 5-0186-0272, IRENE BLANCO MORALES, of legal age, single, Administrator, resident of San José, San Francisco, holder of identity card 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, of legal age, married, Investigator, resident of San José, Pérez Zeledón, holder of identity card 1-0635-0364, IVÁN GRANADOS BARQUERO, of legal age, single, Administrator, resident of Cartago, San Rafael, holder of identity card 3-0325-0944, IVÁN PÉREZ PÉREZ, of legal age, common-law marriage, Detainee Custodian, resident of Limón, Central, holder of identity card 7-0087-0308, IVANNIA AGUILAR ARRIETA, of legal age, married, Administrator, resident of Cartago, El Guarco, holder of identity card 1-0823-0346, IVANNIA MEDINA RAMIREZ, of legal age, single, Judicial Employee, resident of Guanacaste, Santa Cruz, holder of identity card 1-091 1-0387, IVANNIA PATRICIA MORALES LÓPEZ, of legal age, divorced, Courtroom Technician, resident of San José, Hatillo, holder of identity card 1-0879-0108, IVANNIA VALERIO VILLALOBOS, of legal age, married, Professional 2, resident of Heredia, San Isidro, holder of identity card 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, of legal age, resident of San José, holder of identity card 1-0841-0091, IVETH LORENA DUARTE CERDAS, of legal age, divorced, Judicial Expert, resident of Limón, Central, holder of identity card 1-0877-0005, IVETH TORRES GONZÁLEZ, of legal age, common-law marriage, Judicial Employee, resident of Guanacaste, Santa Cmz, holder of identity card 5-0235- O765, IVONNE VALVERDE SANABRIA, of legal age, married, Professional 2, resident of Cartago, La Unión, holder of identity card 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, of legal age, divorced, Criminologist, resident of San José, Goicoechea, holder of identity card 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, of legal age, married, Administrator, resident of Guanacaste, Nicoya, holder of identity card 5-0308-0930, JAVIER ALFARO VALERIO, of legal age, married, Auditor, resident of Heredia, Belén, holder of identity card 1-0660-0072, JAWER ALVARADO SORO, of legal age, married, Judicial Coordinator, resident of Alajuela, San Carlos, holder of identity card 2-0391-0190,JAVIER FRANCISCO DELGADO CARAZO, of legal age, married, Investigator, resident of Guanacaste, Nicoya, holder of identity card 5-0257-0789, JAVIER LEAL DINARTE, of legal age, married, Judicial Investigator, resident of Guanacaste, Santa Cruz, holder of identity card 5-0268-0217, JAVIER QUESADAQUESADA, of legal age, married, Head of Investigation 3, resident of San José, Central, holder of identity card 1-0739-0219, JAVIER WNDAS ROCHA, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-0749-0307, JEANNETTE BARBOZA CASCANTE, of legal age, married, Psychologist, resident of Alajuela, Central, holder of identity card 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, of legal age, married, Criminalist, resident of Cartago, La Unión, holder of identity card 1-O910-0476, Jennifer Stephenson Sterling, of legal age, divorced, Judicial Employee, resident of Limón, Guápiles, holder of identity card 7-0096-0630, JENNY ARCE CÓRDOBA, of legal age, married, Administrator, resident of Cartago, Dulce Nombre, holder of identity card 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, of legal age, married, Architect, resident of Cartago, Guadalupe, holder of identity card 3-0313-0291, JENNY NÚÑEZ SALAZAR, of legal age, married, Administrative Assistant, resident of Puntarenas, Corredores, holder of identity card 6-0280-0719, JEREMY EDUARTE ALEMÁN, of legal age, married, Judicial Employee, resident of Heredia, Central, holder of identity card 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, of legal age, divorced, Judicial Expert, resident of San José, Alajuelita, holder of identity card 1-0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, of legal age, single, Attorney, resident of Guanacaste, Liberia, holder of identity card 1-0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, of legal age, married, Administrator, resident of Heredia, Flores, holder of identity card 1-0881-0675, JHONNY ALFARO NAVARRETE, of legal age, married, Investigator, resident of Heredia, Barva, holder of identity card 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, of legal age, divorced, Systems Engineer, resident of San José, Santa Ana, holder of identity card 1-0787-0155, JOHANNA CHAVES LEÓN, of legal age, married, Social Worker, resident of San José, Desamparados, holder of identity card 1-0897-0130, JOHN PALADINO JIMÉNEZ, of legal age, married, Specialized Technician, resident of San José, Puriscal, holder of identity card 1-0941-0472, JOHNNY ALVAREZ SANDÍ, of legal age, divorced, Security Assistant, resident of Limón, Central, holder of identity card 7-0078-0010, JONATHAN GAMBOA VALLADARES, of legal age, married, Criminalist, resident of San José, Pérez Zeledón, holder of identity card 2-0495-0512, JONATHAN GOÑI CHAVES, of legal age, married, Head of Interpol, resident of Heredia, San Rafael, holder of identity card 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, of legal age, single, Systems Engineer, resident of Heredia, San Pablo, holder of identity card 1-0973-0613, JORGE AGUILAR PÉREZ, of legal age, single, Forensic Physician, resident of Heredia, Barva, holder of identity card 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, of legal age, married, Investigator, resident of Heredia, Central, holder of identity card 1-0753-0847, JORGE ANTONIO CORDERO CHACON, of legal age, single, Administrator, resident of San José, Santa Ana, holder of identity card 1-1019-0604, JORGE ANTONIO CHACON COREA, of legal age, common-law marriage, Judicial Employee, resident of San José, Coronado, holder of identity card 1-0762-0236, JORGE CONTRERAS LACAYO, of legal age, married, Administrative Technician 1, resident of Guanacaste, Liberia, holder of identity card 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, of legal age, married, Judicial Investigator, resident of Heredia, Flores, with identity card 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, of legal age, divorced, Systems Engineer, resident of San José, Central, holder of identity card 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, of legal age, married, Attorney, resident of Cartago, Turrialba, holder of identity card 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, of legal age, married, Judicial Employee, resident of San José, Hatillo, holder of identity card 1-0612-0417, JORGE MARIO ROJAS MEJIAS, of legal age, married, Administrator, resident of Alajuela, San Carlos, holder of identity card 2-0500-0326, JORGE ROBLES ZÚÑIGA, of legal age, widower, Accountant, resident of Cartago, Central, holder of identity card 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, of legal age, married in second nuptials, Administrator, resident of Heredia, Heredia, holder of identity card number 1-0778-0897, JOSÉ EFRAIN SANDERS QUESADA, of legal age, married, Attorney, resident of San José, Pérez Zeledón, holder of identity card 1-0740-0038, JOSE ALBERTO RIVERA OLIVARES, of legal age, married, Attorney, resident of Alajuela, San Carlos, holder of identity card 1-0793-0076, JOSÉ ALEXANDER MORA GARCÍA, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-0706-0010, JOSE ALONSO RODRÍGUEZ VARGAS, of legal age, married, Investigation Officer, resident of Alajuela, San Ramón, holder of identity card 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACON, of legal age, married, Judicial Expert, resident of Heredia, San Isidro, holder of identity card 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, of legal age, divorced, IT Professional, resident of San José, Pérez Zeledón, holder of identity card 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-0670-0201, JOSÉ GILBERTO ROJAS CHACON, of legal age, married, Judicial Investigator, resident of Cartago, Paraíso, holder of identity card 1-0684- 0910, JOSÉ LUIS BADILLA CUADRA, of legal age, divorced, Judicial Technician, resident of Cartago, Turrialba, holder of identity card, 2-0449- OOO4, JOSÉ LUIS BENAVIDES UMAÑA, of legal age, single, Attorney, resident of San José, Goicoechea, holder of identity card 1-0714-0628, JOSE LUIS PERAZA ÁLVAREZ, of legal age, divorced, Mechanical Engineer, resident of Alajuela, Central, holder of identity card 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, of legal age, divorced, Administrative Assistant, resident of San José, Alajuelita, holder of identity card l-O873-0458, JOSÉ MAURICIO FONSECA UMAÑA, of legal age, married, Administrator, resident of Cartago, La Unión, holder of identity card 1-0921- 028, JOSÉ RAFAEL ROJAS LÓPEZ, of legal age, married, Criminologist, resident of San José, Santa Ana, holder of identity card 1-0772-09 1 7, JOSÉ RAMÓN HIDALGO HIDALGO, of legal age, married, Judicial Employee, resident of San José, Aserrí, holder of identity card 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMIREZ, of legal age, married, Detainee Custodian, resident of San José, Calle Blancos, holder of identity card 3- 320-980, JOSÉ RUBÉN DIMAS PORTILLO, of legal age, married, Administrator, resident of San José, Coronado, holder of identity card, 8-0070-0864, JUAN CARLOS ARIAS AGUILAR, of legal age, married, Judicial Investigator, resident of Alajuela, San Carlos, holder of identity card 2-0408-0344, JUAN CARLOS CAMPOS MARIN, of legal age, married, Investigator, resident of Heredia, Santa Bárbara, holder of identity card 1-0838-0041, JUAN CARLOS LEAL VEGA, of legal age, married, Administrator, resident of San José, Goicoechea, holder of identity card 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, of legal age, married, Judicial Investigator, resident of Heredia, Belén, holder of identity card 2-0448-0967, JUAN CARLOS QUESADA QUESADA, of legal age, married, Bachelor's in Criminology, resident of San José, Puriscal, holder of identity card 1-0796-0215, JUAN CARLOS SALAS VARELA, of legal age, divorced, Administrative Technician 2, resident of Limón, Central, holder of identity card 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, of legal age, single, Administrator, resident of San José, Coronado, holder of identity card 1-0922-0112, JUAN JOSE ACUÑA PASTRANA, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, holder of identity card 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, of legal age, married, Canine Unit, resident of Alajuela, Central, holder of identity card 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, of legal age, married, Attorney, resident of Alajuela, Central, holder of identity card 2-0486-0526JUAN LUIS SÁNCHEZ ALVARADO, of legal age, married, Investigation Officer, resident of Limón, Siquirres, holder of identity card 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, of legal age, divorced, Judicial Investigator, resident of San José, Pérez Zeledón, holder of identity card 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, of legal age, married, Driver, resident of Guanacaste, Liberia, holder of identity card 5-02 l 5-0 l 75, KAREN ALFARO VARGAS, of legal age, common-law marriage, Attorney, resident of Alajuela, Orotina, holder of identity card 1-0808-0716, KAREN JACKELYN THOMAS SMITH, of legal age, married, Investigator, resident of Limón, Central, holder of identity card 7-0096-0607, KARIN AGUILAR MOLINARI, of legal age, single, Attorney, resident of Alajuela, Atenas, holder of identity card 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, of legal age, divorced, Secretary, resident of Heredia, Central, holder of identity card 1-09 l 0-0203, KARLA SANCHO VARGAS, of legal age, single, Judicial Expert, resident of San José, Zapote, holder of identity card 1-0779-0289, KAROLINA RIVERA ESPINOZA, of legal age, single, Attorney, resident of Heredia, Central, holder of identity card 2-051 4-0769, KATTIA CAMPOS ZÚÑIGA, of legal age, married, Administrative Head 4, resident of San José, Goicoechea, holder of identity card 1-0707-0725, KATTIA CORDERO SOLANO, of legal age, married, Administrative Technician 2, resident of Heredia, San Rafael, holder of identity card 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, of legal age, Attorney, resident of San José, Desamparados, holder of identity card 1-0984-0078, KATIA MARCELA SABORIO SOTO, of legal age, divorced, Administrative Head 4, resident of Cartago, El Guarco, holder of identity card 4-0137-0134, KATTIA MARÍA VARGAS PEREZ, of legal age, married, Judicial Employee, resident of San José, Desamparados, holder of identity card 1- 0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, of legal age, married, Psychologist, resident of Cartago, La Unión, holder of identity card 1-0646-0777, KATTIA MORALES NAVARRO, of legal age, married, Judicial Employee, resident of San José, Moravia, holder of identity card 1-0801-0141, KATTIA SABORIO CHAVERRI, of legal age, married, Chemist, resident of Alajuela, Central, holder of identity card 2-0453- O781, KATTIA VARGAS NAVARRO, of legal age, married, Judicial Technician, resident of San José, Pérez Zeledón, holder of identity card 1-070 1-0539, KATTIA VARGAS VEGA, of legal age, divorced, Judicial Employee, resident of Cartago, San Francisco, holder of identity card 1-0810-0668, KATTIA CECILIA MARÍN MIRANDA, of legal age, married, Secretary, resident of San José, Curridabat, holder of identity card 1-0784-0554, KATTIA VARGAS SALAS, of legal age, married, Judicial Technician, resident of Heredia, Mercedes Norte, holder of identity card 1-0793-07 18, KATTYA MERCEDES MONGE PACHECO, of legal age, married, Judicial Employee, resident of Cartago, Oreamuno, holder of identity card 3-0337-0036, KRISIA FUMERO ARAYA, of legal age, married, Psychologist, resident of Cartago, Turrialba, holder of identity card 3-0324-0912, LAURA PATRICIA CHACON MORA, of legal age, married, Psychologist, resident of Heredia, San Isidro, holder of identity card 1-0708- 0 4 7 2 , Leda Ginette Solano Ibarra, of legal age, divorced, Administrator, resident of Heredia, Barva, holder of identity card 6-0166-0755, LEONARDO BRENES GOMEZ, of legal age, married, Prosecutor, resident of Alajuela, Central, holder of identity card 1- 0921-0927, LIDIA ISABEL VASQUEZ VALLEJOS, of legal age, single, Judicial Technician, resident of Guanacaste, Liberia, holder of identity card 5-0265-0923, LIGIA CASTILLO CASTILLO, of legal age, divorced, Victim Assistance, resident of Cartago, La Pitahaya, holder of identity card 3-0344-0861, LILLIAM MARÍA GARITA SHARPE, of legal age, single, Judicial Coordinator, resident of Limón, Central, holder of identity card 7-0074-0805, LILLIANA ROJAS MORA, of legal age, divorced, Judicial Coordinator, resident of Limón, Central, holder of identity card 7-01 1 1-0674, LILLIANA SABORIO SABORÍO, of legal age, divorced, Administrator, resident of Alajuela, Grecia, holder of identity card 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, of legal age, single, Judicial Employee, resident of Alajuela, San Carlos, holder of identity card 2-0497-0272, LIZETH BARAHONA CASTILLO, of legal age, divorced, Judicial Technician 3, resident of Limón, Central, holder of identity card 7-0097-0842, LIZETH ROGERS ROGERS, of legal age, married, Judicial Employee, resident of Limón, Central, holder of identity card 7-0101-0960, LIZETTE BRENES ARCE, of legal age, married, Judicial Technician, resident of San José, Guadalupe, holder of identity card 1-0715-0167, LIZZETH CRUZ TORRES, of legal age, divorced, Social Worker, resident of Heredia, Mercedes Norte, holder of identity card 1-0615-0237, LORELEY CERDAS ÁVILA, of legal age, married, Microbiologist, resident of Alajuela, Desamparados, holder of identity card 1-0723-0311, LORENA RODRÍGUEZ SALAS, of legal age, single, Judicial Employee, resident of San José, Central, holder of identity card 1-0744-0409, LOURDES ANGULO JIMÉNEZ, of legal age, married, Attorney, resident of Guanacaste, Nicoya, holder of identity card 5-0257-0944, LUCRECIA ROJAS ROJAS, of legal age, married, Auditor, resident of Cartago, San Nicolas, holder of identity card 3-0272-0321, LUIS ÁLVAREZ VINDAS, of legal age, married, Judicial Investigator, resident of Alajuela, Naranjo, holder of identity card 2-0417-0295, LUIS ANGEL MATAMOROS ARIAS, of legal age, divorced, Custodian, resident of San José, Hatillo, holder of identity card 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, of legal age, divorced, Administrator, resident of Cartago, La Unión, holder of identity card 1-0793-0256, LUIS DIEGO CHAVARRIA GARCÍA, of legal age, married, Attorney, resident of San José, Aserrí, holder of identity card 1-0948-01 18, LUIS DIEGO ZARATE MORALES, of legal age, single, Administrative Technician, resident of San José, Curridabat, holder of identity card 1-0993-0395, LUIS EDUARDO RODRÍGUEZ QUIRÓS, of legal age, divorced, Professional in Criminology, resident of San José, San Sebastián, holder of identity card 1-0605-0013, LUIS ENRIQUE ARROYO ACUÑA, of legal age, divorced, Systems Engineer, resident of San José, Goicoechea, holder of identity card 1-0626-0336, LUIS ENRIQUE LEÓN RODRIGUEZ, of legal age, married, Criminal Analyst, resident of Guanacaste, Liberia, holder of identity card 5-0313-0263, LUIS FALLAS PIVA, of legal age, married, Administrative Assistant, resident of Alajuela, Central, holder of identity card 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, of legal age, married, Administrative Assistant, resident of Heredia, Santa Bárbara, holder of identity card 1-0884-0317, LUIS FERNANDO RODRIGUEZ ARTAVIA, of legal age, married, Criminalist, resident of Alajuela, San Carlos, holder of identity card 2-0467- 0324, LUIS FERNANDO SOLIS VILLEGAS, of legal age, divorced, Judicial Employee, resident of San José, Central, holder of identity card 1- 0576-0916, LUIS FERNANDO SAEDWIN MATAREZ JIMÉNEZ, of legal age, married, Attorney, resident of Guanacaste, Liberia, holder of identity card 1-0738-0178, LUÍS GERARDO MARTINEZ GARCIA, of legal age, common-law marriage, Security Officer, resident of Guanacaste, Liberia, holder of identity card 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, of legal age, common-law marriage, Judicial Expert, resident of Guanacaste, Nicoya, holder of identity card 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, of legal age, married, Administrator, resident of San José, Montes de Oca, holder of identity card 1-0784-0409, LUIS GUILLERMO COTO QUESADA, of legal age, single, Maintenance Technician, resident of Cartago, La Unión, holder of identity card 3-0242-0147, LUIS GUILLERMO VASQUEZ UREÑA, of legal age, married, Accountant, resident of San José, Aserrí, holder of identity card 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, of legal age, common-law marriage, Judicial Technician, resident of Guanacaste, Nicoya, holder of identity card 5-0240-0795, LUIS MANUEL RAMIREZ SOLÍS, of legal age, divorced, resident of Santa Bárbara de Heredia, holder of identity card number 2-0435-0895, LUIS MATAMOROS CARVAJAL, of legal age, married, Judicial Employee, resident of Cartago, La Unión, holder of identity card 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, of legal age, single, Investigator, resident of San José, Goicoechea, holder of identity card 1-0661-0772,LUIS RODRIGO CAMPOS GAMBOA, of legal age, single, Attorney, resident of Heredia, Central, holder of identity card 1-0802-0480, LUIS RODRIGO GUTIERREZ ARGUEDAS, of legal age, married, Investigation Officer, resident of Guanacaste, Nicoya, holder of identity card 1-0940-0199, LUIS RODRÍGUEZ CRUZ, of legal age, married, Judicial Employee, resident of Limón, Central, holder of identity card 7-0090-0234, LUIS VASQUEZ VALLEJOS, of legal age, single, Coordinator, resident of Guanacaste, Liberia, holder of identity card 5-0247-0313, KATIA MARCELA SABORIO SOTO, of legal age, divorced, Administrative Head 4, resident of Cartago, El Guarco , holder of identity card 4-0137-0134, MABEL MURILLO ARCE, of legal age, married, Secretary, resident of Guanacaste, Santa Cruz, holder of identity card 2-0443-0636, MAGALIE VARGAS JOHNSON, of legal age, married, Administrator, resident of Limón, Central, holder of identity card 7-0090-0188, MALCO MONTOYA RAMÍREZ, of legal age, married, Administrative Assistant, resident of Guanacaste, Liberia, holder of identity card 5-0262-0199, MANFRED QUESADA SÁNCHEZ, of legal age, married, Head of Investigation 3, resident of Alajuela, Palmares, holder of identity card 6-0268- 0546, MANUEL ALEJANDRO TORRES CASTRO, of legal age, married, Administrator, resident of San José, Moravia, holder of identity card 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, of legal age, married, Telematics Technician, resident of San José, Coronado, holder of identity card 1-0708-0291, MANUEL ERNESTO DURAN CASTRO, of legal age, married, Judicial Employee, resident of San José, San Francisco, holder of identity card 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, of legal age, married, Judicial Employee, resident of San José, Tibás, holder of identity card 6-0231-0761, MANUEL OREAMUNO ZEPEDA, of legal age, married, Bachelor of Chemistry, resident of Heredia, Santo Domingo, holder of identity card 1-0859-0237, MANRIQUE MORALES MONTIEL, of legal age, divorced, Judicial Employee, resident of Puntarenas, Central, holder of identity card 6-027 1-0224, MARCELA MADRIZ ARCE, of legal age, married, Psychologist, resident of Alajuela, San Ramón, holder of identity card 3-0271-0457, MARCELA ZUÑIGA JIMÉNEZ, of legal age, married, Administrator, resident of Cartago, Los Ángeles, holder of identity card 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, of legal age, divorced, Courtroom Technician, resident of San José, Zapote, holder of identity card 1-0518-0695, MARCO ANTONIO CARRION HERNÁNDEZ, of legal age, divorced, Chief of Investigation, resident of San José, Central, holder of identity card 1-0817- 0932, MARCO ANTONIO HERRERA CHARRAUN, of legal age, married, Audiovisual Producer, resident of San José, Montes de Oca, holder of identity card 1-0870-0028, MARCO BADILLA BERMUDEZ, of legal age, married, Investigator, resident of Guanacaste, Liberia, holder of identity card 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, of legal age, divorced, Investigation Officer, resident of Cartago, Turrialba, holder of identity card 3-0316-0545, MARCO v1N1c1o FUENTES SÁNCHEZ, of legal age, married, Attorney, resident of Cartago, El Guarco, holder of identity card 1-0801-0273, MARCO VINICIO PORRAS MORALES, of legal age, single, Investigation Officer, resident of Alajuela, Naranjo, holder of identity card 2-0429-0412, MARCO VINICIO RODRIGUEZ ARAGÓN, of legal age, married, Civil Engineer, resident of Alajuela, La Guácima, holder of identity card 2-0485-0423, MARCONY ARBUROLA VALVERDE, of legal age, married, Investigation Officer, resident of San José, Desamparados, holder of identity card 5- 0246-0169, MARGARITA CERDAS VEGA, of legal age, married, Judicial Employee, resident of Guanacaste, Liberia, holder of identity card 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELASQUEZ, of legal age, divorced, Judicial Employee, resident of Limón, Central, holder of identity card 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, of legal age, single, Judicial Coordinator 2, resident of San José, Goicoechea, holder of identity card 1-0968-0625, MARIA AUXILIADORA SOTO RIVERA, of legal age, married, Judicial Technician, resident of San José, Moravia.

holder of identity card 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, of legal age, divorced, Criminologist, resident of San José, San Francisco, holder of identity card 1-0539-0560, MARÍA DE LA CRUZ ARROYO BRAVO, of legal age, single, Bachelor's Degree in Chemistry, resident of Alajuela, Atenas, holder of identity card 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRIGUEZ, of legal age, married, Microbiologist, resident of San José, Pavas, holder of identity card 1-0700-0492, MARIA DE LOS ÁNGELES CHAVES VARGAS, of legal age, divorced, Administrative Chief, resident of Heredia, San Rafael, holder of identity card 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, of legal age, single, Coordinator, resident of Guanacaste, Nicoya, holder of identity card 5-0248-0031 MARÍA DEL CARMEN VASQUEZ VALLEJOS, of legal age, single, Judicial Coordinator, resident of Guanacaste, Santa Cruz, holder of identity card 5-0233-0377, MARÍA ELENA MOLINA SABORIO, of legal age, single, Judicial Technician 3, resident of Puntarenas, Montes de Oro, holder of identity card 6-0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, of legal age, single, Attorney, resident of Alajuela, Grecia, holder of identity card 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ of legal age, married, Administrator, resident of Heredia, San Francisco holder of identity card 1-0655-0648, MARÍA JOSE CHAVES GUZMÁN, of legal age, married, Judicial Employee, resident of San José, Moravia holder of identity card 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, of legal age, single, Judicial Technician, resident of Guanacaste, Liberia, holder of identity card 5-0300-0346, MARIA LUCRECIA CHAVES TORRES, of legal age, married, Administrator resident of San José, Moravia, holder of identity card 3-0274 0283, MARÍA MARGOTH CASTRO SALAZAR, of legal age, married, Attorney, resident of Alajuela, El Coyol, holder of identity card 2-0454-0319, MARÍA MARITZA PIZARRO COREA, of legal age, single, Judicial Assistant, resident of Guanacaste, Liberia, holder of identity card 5-O2825-0080, MARIA TERESA BENAVIDES ARGUELLO, of legal age, divorced, Administrator, resident of Heredia, Santo Domingo, holder of identity card 1-0715-0688, MARÍA VALENTINA CARMIOL YALICO, of legal age, divorced, Investigator, resident of Guanacaste, Nicoya, holder of identity card 1-0744-0771, MARÍA VERONICA SALAZAR PIZARRO, of legal age, single, Secretary, resident of Limón, Rio Blanco, holder of identity card 1-0910-0807, MARIA ANTONIETA HERRERA CHARRAUN, of legal age, married, Public Accountant, resident of San José, Curridabat, holder of identity card 1-0820-0799, MARIANO RODRÍGUEZ FLORES, of legal age, single, Administrator, resident of San José, Acosta, holder of identity card 1-0971-0033, MARIBEL LÓPEZ BERMUDEZ, of legal age, married, Administrator, resident of Limón, Central, holder of identity card 7-0120-0576, MARIO ANGULO SALAZAR, of legal age, single, Attorney, resident of Guanacaste, Liberia, holder of identity card 1-1014-0171, MARIO CAMACHO CAMPOS, of legal age, divorced, Chief of Investigation, resident of Puntarenas, Osa, holder of identity card 1-0845-0638, MARIO MIRANDA DE LA O, of legal age, married, Specialized Technician, resident of Guanacaste, Liberia, holder of identity card 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, of legal age, single, Judicial Technician, resident of San José, Desamparados, holder of identity card 5-0241-0198, MARITZA VALVERDE CORDERO, of legal age, single, Librarian, resident of San José, Desamparados, holder of identity card 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, of legal age, single, Clerk, resident of San José, Central, holder of identity card 1-0604-0812, MARJORIE SANABRIA ROJAS, of legal age, divorced, Criminologist, resident of San José, Montes de Oca, holder of identity card 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, of legal age, single, Notifier, resident of San José, Puriscal, holder of identity card 9-0073-0359, MARLENE ACEVEDO MONTES, of legal age, married, Judicial Employee, resident of Puntarenas, Golfito, holder of identity card 6-0152-0743, MARLENE ALPIZAR LÓPEZ, of legal age, single, Administrator, resident of San José, Tibás, holder of identity card 1-0607-0484, MARLENY RAMÍREZ GAMBOA, of legal age, married, Secretary, resident of Heredia, Barva, holder of identity card 4-0 150-0093, MARLON ARIAS QUIROS, of legal age, married, Attorney, resident of Cartago, Central, holder of identity card 1-0120-0929, MARLYN CASTRO ALVARADO, of legal age, married, Specialized Technician, resident of Puntarenas. Corredores, holder of identity card 9-0076-0447, MARLYN ELENA QUESADA QUESADA, of legal age, single, Bachelor's Degree in Administration, resident of San José, San Pedro, holder of identity card 1-0620-0077, MARTA LADY ZUÑIGA SÁNCHEZ, of legal age, married, Administrative Technician, resident of San José, Calle Blancos, holder of identity card 1-0692-0673. MARTÍN HERNÁNDEZ SERRANO, of legal age, divorced, IT Specialist, resident of Alajuela, Central, holder of identity card 1-0726-072 1 , MARVIN ANGULO DÍAZ, of legal age, married, Criminalist, resident of San José, Pérez Zeledón, holder of identity card 1-0623-0439, MARVIN DURAN FERNANDEZ, of legal age, resident of Cartago, Turrialba, holder of identity card 3-0258-0595, MARVIN DURAN PEREIRA, of legal age, divorced, Attorney, resident of Cartago, Turrialba, holder of identity card 3-0258-0595, MAUREEN BOLAÑOS ROJAS, of legal age, single, Judicial Employee, resident of San José, Central, holder of identity card 1-0784-0631, MAUREEN SILES MATA, of legal age, married, Administrator, resident of San José, Moravia, holder of identity card 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ of legal age, married, Administrative Assistant, resident of San José, Alajuelita holder of identity card 1-1003-0126, MAUREEN IONG UREÑA of legal age, married, Attorney, resident of San José, Moravia, holder of identity card 1-0815-0990, MAUREN VENEGAS MENDEZ, of legal age, married, Administrative Chief 4. resident of San José, Goicoechea, holder of identity card 3-0339-0814, MAURICIO CORRALES JIMÉNEZ of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA of legal age, divorced, Judicial Employee, resident of San José, Montes de Oca holder of identity card 1-0783-0049, MAURICIO RETANA GONZALEZ, of legal age, married, Criminologist, resident of Cartago, El Guarco holder of identity card 1-0919-01 11, MAX ALEXANDER LOPEZ LÓPEZ, of legal age, married, Detainee Custodian, resident of Guanacaste, Liberia, holder of identity card 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, of legal age, in a common-law union, judicial employee resident of San José, Tibás, holder of identity card 7-0087-0424 MAYRA GISELLA GONZALEZ, SANCHEZ, of legal age, divorced, Administrative Assistant, resident of Heredia, Mercedes Norte, holder of identity card 1-0567-0766, MELANIA GÓMEZ ACUÑA, of legal age, single, Radio Operator, resident of Cartago, Central, holder of identity card 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, of legal age, married, Judicial Employee. resident of Alajuela, San Carlos, holder of identity card 2-0530-0824, MICHAEL JIMENEZ UREÑA, of legal age, married, Systems Engineer, resident of San José, Aserrí, holder of identity card 1-0881-0296, MIGUEL ANGEL AZOFEIFA LIZANO, of legal age, divorced, Judicial Employee, resident of Heredia, Central, holder of identity card 1-0747-01 85, MIGUEL ANGEL MUÑOZ FLORES, of legal age, single, Administrator, resident of San José, Tibás, holder of identity card 7-0072-0678, MIGUEL OVARES CHAVARRIA, of legal age, single, Accountant, resident of San José, Central, holder of identity card 1- 1 006-0605, MINOR ANCHÍA VARGAS, of legal age, married, Administrator, resident of San José, Curridabat, holder of identity card 1-0739-0416, MINOR ANTONIO JIMENEZ VARGAS, of legal age, married, Attorney, resident of Alajuela, San Ramón, holder of identity card 6-0217-0066, MINOR MONGE CAMACHO, of legal age, divorced, Criminologist, resident of San José, Goicoechea, holder of identity card 1-0676-0442, MINOR RIVAS TORRENTES, of legal age, married, Investigation Officer, resident of Guanacaste, Liberia, holder of identity card 5-0223-0870, MINOR ZÚÑIGA GONZALEZ, of legal age, single, Judicial Employee, resident of Cartago, Central, holder of identity card 3-0316-0212, MIXCY CHAVES MENDOZA, of legal age, divorced, Legal Support, resident of Guanacaste, Liberia, holder of identity card 5-0309-0547, MOISÉS ALVARADO CHACON, of legal age, married, Investigator, resident of San José, Desamparados, holder of identity card 1-0677-0216, NANCY VILLAWCENCIO ALEMÁN, of legal age, married, Accountant, resident of Heredia, San Rafael, holder of identity card 5-0247-0582, NATACHA PIZARRO SOTO, of legal age, divorced, Judicial Coordinator, resident of Guanacaste, Liberia, holder of identity card 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, of legal age, single, Social Worker, resident of Alajuela, San Ramón, holder of identity card 2-0443-0931, NELSON PÉREZ GUADAMUZ, of legal age, married, Judicial Employee, resident of Cartago, Paraíso, holder of identity card, 1-0901-0416, NÍDIA CASTRO CONEJO, of legal age, married, Coordinator, resident of Heredia, Central, holder of identity card 1-0776-0726, NILLS ROJAS JARA, of legal age, divorced, Attorney, resident of Alajuela, San Carlos, holder of identity card 7-0102-0481, NUBIA AGUILAR CAMACHO, of legal age, married, Judicial Technician, resident of San José, Goicoechea, holder of identity card 1-0582-0179, NURIA QUESADA ZAMORA, of legal age, single, Secretary, resident of San José, Pérez Zeledón, holder of identity card 1-06 19-0414, OLDEMAR CERDAS JUÁREZ, of legal age, married, Investigator, resident of Guanacaste, Nicoya, holder of identity card 5-0252-0491, OLGA MURILLO ESPINOZA, of legal age, married, Social Worker. resident of Alajuela, San Ramón, holder of identity card 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, of legal age, widow, Administrative Technician, resident of San José, Tibás, holder of identity card 1-0775-0839, OLTVIER CORRALES RODRÍGUEZ, of legal age, divorced, Detainee Custodian, resident of Alajuela, Naranjo, holder of identity card 2-0459-0740, OMAR AGÚERO ROJAS, of legal age, divorced, Specialized Technician s, resident of Guanacaste, Santa Cruz, holder of identity card 6-0152-077, OMAR BRENES CAMPOS, of legal age, single, Judicial Employee, resident of San José, Central, holder of identity card 1-0889-0754, ORLANDO CASTRILLO VARGAS, of legal age, married, IT Specialist, resident of Cartago, La Unión, holder of identity card 1 - 0 7 3 0 - 0 3 3 5, Osbaldo Rosales Chacón, of legal age, divorced, Administrator, resident of Heredia, Central, holder of identity card 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, of legal age, married, Attorney, resident of Heredia. Barva. holder of identity card 4-0154-0227, OSVALDO LÓPEZ MORA, of legal age, married, Attorney, resident of San José, Desamparados, holder of identity card 1- 0926-0995, OSVALDO RODRÍGUEZ FLORES, of legal age, married, Communications Technician, resident of Limón, Matina, holder of identity card 6-0251-0813, OSWALDO JOSÉ VASQUEZ MADRIGAL, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of identity card 3-0301-0666, PABLO MACEO SOTO, of legal age, married, Communications Technician, resident of Limón, Central, holder of identity card 7-0112-0501, PABLO ROLDAN UMAÑA, of legal age, divorced, Industrial Engineer, resident of San José, Escazú, holder of identity card 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, of legal age, married, Accountant, resident of Heredia, Barva, holder of identity card 4- 0161-0248, PATRICIA FALLAS MELENDEZ, of legal age, divorced, Chemist, resident of Cartago, Tres Ríos, holder of identity card 1-0660- 0570, PATRICIA RIVERA SANDOVAL, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-0782- 0780, PATRICIA WO CHING MOK, of legal age, single, Secretary, resident of San José, Montes de Oca, holder of identity card 7-O094- 0757, PAULO HUMBERTO MENA QUESADA, of legal age, married, Administrator, resident of Cartago, Central, holder of identity card 3-0331-Ol 09, PEDRO ARCE GONZÁLEZ, of legal age, married, Unit Chief, resident of Alajuela, Atenas, holder of identity card 2-0385-0931, PEDRO BONILLA PICADO, of legal age, married, Judicial Employee, resident of Puntarenas, Osa, holder of identity card 6-Ol 60-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, of legal age, married, Attorney, resident of San José, Coronado, holder of identity card 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, of legal age. married, Judicial Employee, resident of Alajuela, El Roble, holder of identity card 2-0490-0234, RAFAEL DAVID VEGA SEGURA, of legal age, married, Attorney, resident of Puntarenas, Puerto Jiménez, holder of identity card 1-0791-0159, RAFAEL NAVARRETE BRENES, of legal age, married, Chief of Investigation, resident of Limón, Central, holder of identity card 7-0104-0669, RAFAEL UREÑA BARRIOS, of legal age, divorced, Administrative Technician, resident of San José, San Francisco, holder of identity card 1-0915-0224, RALOXS ALVARADO CASCANTE, of legal age, married, Security Supervisor, resident of Alajuela, La Guácima, holder of identity card 1-0873- 0410, RAMÓN ANGULO ROLDÁN, of legal age, married, Judicial Employee, resident of Heredia, Central, holder of identity card 1-0554-0410, RANDALL RODRIGUEZ ULATE, of legal age, married, Judicial Employee, resident of Cartago, El Tejar, holder of identity card 1-0783-0793, RANDY MARTÍN TREJOS MORALES, of legal age, married, Attorney, resident of San José, Pérez Zeledón, holder of identity card 1-0758-0892, RAQUEL RAMIREZ BONILLA, of legal age, married, Administrator, resident of San José, holder of identity card 1-0997-0349, RASHID BEIRUTE GRANADOS, of legal age, separated in fact, Judicial Coordinator, resident of Guanacaste, Nicoya, holder of identity card 5-0243- 0570, RAYVAN MC LEOD BIGSBY, of legal age, married, Services Assistant, resident of Limón, Central, holder of identity card 7-01 02- 0768, REBECA GUARDIA MORALES, of legal age, divorced, Attorney, resident of Heredia, Lagunilla, holder of identity card 1-0808-0973, REBECCA ARTAWA BRUNO, of legal age, married, Bachelor's Degree in Communication, resident of Cartago, Tres Ríos, holder of identity card 1-0931- 0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, of legal age, single, IT Engineer, resident of San José, Central, holder of identity card 1-0548-0407, RICARDO CALDERÓN VALVERDE, of legal age, married, Investigator, resident of San José, Pérez Zeledón, holder of identity card 9-0098-0557, RICARDO GARCÍA MOLINA, of legal age, single, Accountant, resident of Cartago, La Unión, holder of identity card 4-Ol70-0018, RITA CASTRO ABARCA, of legal age, married, Accountant, resident of Cartago, La Unión holder of identity card 2-0456- 0750, RITA MARÍA QUIRÓS OBANDO, of legal age, single, Systems Analyst, resident of San José, Zapote, holder of identity card 1-0758- 0598, ROBERTO CARLOS PÉREZ VARGAS, of legal age, divorced, Investigation Officer, resident of Cartago, Oreamuno, holder of identity card 1-0897-0374, ROBERTO HAMBELANT ZELEDON, of legal age, married, Attorney, resident of Limón, Central, holder of identity card 7-01 17-0903, ROBERTO LÓPEZ ESPINOZA, of legal age, married, Judicial Employee, resident of San José, Hatillo, holder of identity card 1-0813-0303, ROCÍO PICADO VARGAS, of legal age, divorced, Administrator, resident of San José, San Pedro, holder of identity card 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, of legal age, single, Administrator, resident of San José, Barrio México, holder of identity card, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, of legal age, divorced, Communications Technician, resident of Guanacaste, Nicoya, holder of identity card 5-0235-9378, RODNEY GEORJANNY EARL BROWN, of legal age, married, Law Professional, resident of Limón, Pueblo Nuevo, holder of identity card 1-0930-0027, RODRIGO CAMPOS ESQUIVEL, of legal age, married, Attorney, resident of Guanacaste, Liberia, holder of identity card 1-0706-0332, RODRIGO CASTRO SOLIS, of legal age, married, Judicial Employee, resident of San José, Moravia, holder of identity card 7-OIOI -0028, RODRIGO CHAVES CALVO, of legal age, married, Administrator, resident of San José, Central, holder of identity card 7-01 14-0365, RODRIGO HERNÁNDEZ OBANDO, of legal age, divorced, Attorney, resident of San José, Central, holder of identity card 1-0903-0505, ROELIS REYES PICHARDO, of legal age, divorced, Criminologist, resident of Cartago, Central, holder of identity card 5-0273-0355, ROGER JIMÉNEZ FAJARDO, of legal age, divorced, Judicial Employee, resident of Guanacaste, Nicoya, holder of identity card 5-0244-0772, ROGER ULISES CAMPOS MUÑOZ, of legal age, married, Judicial Employee, resident of San José, San Sebastián, holder of identity card 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, of legal age, married, Detainee Custodian, resident of Limón, Pococí, holder of identity card 1-0538-0903, RONALD ABARCA SOLANO, of legal age, married, Attorney, resident of San José, Central, holder of identity card 3-0282-0138, RONALD SOLÍS JIMÉNEZ, of legal age, married, Judicial Employee, resident of San José, Escazú, holder of identity card 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, of legal age, divorced, Judicial Investigator, resident of San José, Curridabat, holder of identity card 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, of legal age, single, Administrator, resident of Heredia, San Joaquín, holder of identity card 4-0125-0931, ROSE MARY LAWRENCE MORA, of legal age, divorced, Attorney, resident of San José, Desamparados, holder of identity card 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, of legal age, divorced, Journalist, resident of San José, Central, holder of identity card 1-0852-0854, ROSIBEL BRENES ALVARADO, of legal age, divorced, Business Administrator, resident of Heredia, San Rafael, holder of identity card 4-0162-0518, ROSIBEL BRENES REYES, of legal age, married, Secretary, resident of Heredia, Central, holder of identity card 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, of legal age, married, Administrator, resident of San José, Desamparados, holder of identity card 1-0698-0291, ROXANA GÓMEZ BARQUERO, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of identity card 9-0075-0148, ROXANA HIDALGO VEGA, of legal age, single, Administrator, resident of San José, Zapote, holder of identity card 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, of legal age, single, Judicial Employee, resident of Alajuela, Central, holder of identity card 1-0652-0137, ROXANA MESÉN FONSECA, of legal age, married, Social Worker, resident of San José, Moravia, holder of identity card 1-0850-0833, ROY FERNANDO VARGAS NARANJO, of legal age, married, Attorney, resident of San José, Desamparados, holder of identity card 1-0919-0152, RUTH LORENA SABORIO NÚÑEZ, of legal age, married, Judicial Coordinator 3, resident of San José, Calle Blancos, holder of identity card 1- 097 1-0856, SABAS GARCÍA LEAL, of legal age, married, Investigator, resident of San José, Alajuelita, holder of identity card 5-0220-0011, SANDRA GÓMEZ AGUILAR, of legal age, single, Secretary, resident of Alajuela, San Ramón, holder of identity card 3-0262-0507, SANDRA PÉREZ OBANDO, of legal age, married, Judicial Employee, resident of San José, Guadalupe, holder of identity card 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, of legal age, widow, Investigator, resident of Guanacaste, Nicoya, holder of identity card 5-O2 19-0232, SANTIAGO ALFONSO ARAYA GUTIÉRREZ, of legal age, divorced, Attorney, resident of Heredia, Central, holder of identity card 1-0826-0278, SAUL RETANA LÓPEZ, of legal age, married, Protection Agent, resident of San José, Desamparados, holder of identity card 1-0630-0113, SEIDY JIMÉNEZ BERMUDEZ, of legal age, single, Administrator, resident of Guanacaste, Liberia, holder of identity card 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, of legal age, married, Architect, resident of San José, Santa Ana, holder of identity card 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, of legal age, single, Judicial Employee, resident of Limón, Central, holder of identity card 7-0105-0414, SHIRLEY AZOFEIFA JIMENEZ, of legal age, married, Judicial Expert, resident of San José, Pérez Zeledón, holder of identity card 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, of legal age, single, Administrator, resident of Limón, Central, holder of identity card 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, of legal age, single, Administrator, resident of Alajuela. San Carlos, holder of identity card 2-0497- 0859, SHIRLEY ROJAS BARRANTES, of legal age, single, Attorney, resident of Guanacaste, Santa Cruz, holder of identity card 5-0240-0923, SHIRLEY VASQUEZ CASTAÑEDA, of legal age, married, judicial Technician, resident of Heredia, Central, holder of identity card 6-0234-0401, SILWA CASCANTE RUEDA, of legal age, married, Analyst, resident of Heredia, Barva, holder of identity card 6-0241-0939, SILVIA CHINCHILLA PORRAS, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, of legal age, divorced, Secretary, resident of San José, Hatillo, holder of identity card 6-0260-0388, SILVIA EMILIA MORA JIMENEZ, of legal age, married, Judicial Technician 2, resident of Cartago, La Unión, holder of identity card 1-O79 1-0964, SILVIA ESPINOZA ACEVEDO, of legal age, married, Judicial Technician, resident of Guanacaste, Liberia, holder of identity card 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, of legal age, married, Judicial Employee, resident of San José, Tibás, holder of identity card 1-0977-0164, SILVIA PALMA ELIZONDO, of legal age, married, Attorney, resident of San José, Montes de Oca, holder of identity card 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, of legal age, married. Judicial Technician, resident of Puntarenas, Corredores, holder of identity card 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, of legal age, divorced, Judicial Employee, resident of San José, Central, holder of identity card 1 0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, of legal age, divorced Administrative Assistant, resident of Limón, Central, holder of identity card 7-O09 1-0008, SONIA ISABEL GAMBOA ROJAS, of legal age, married Professional 1, resident of Alajuela, San Carlos, holder of identity card 2-0346-0839, SONIA RAMÍREZ THORPE, of legal age, married Judicial Coordinator, resident of Limón, Central, holder of identity card 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, of legal age, married Social Worker, resident of Cartago, La Unión, holder of identity card 5-0222-0182, STEVEN PICADO GAMBOA, of legal age, single Administrator, resident of Heredia, Central, holder of identity card 1-0982-0768, SUGEY FONSECA PORRAS, of legal age, divorced Administrator, resident of San José, San Sebastián, holder of identity card 1-1073-0434, SUGEY QUESADA VALERIN, of legal age, married Secretary, resident of Limón , Central, holder of identity card 7-0116-0302, SUSANA ALFARO SOTO, of legal age, single in common-law union Chemical Laboratory Technician, Resident of Alajuela, Sarchí, holder of identity card 1-0944-0249, TANIA MARÍA PÉREZ BARRANTES, of legal age, married, Systems Engineer, resident of San José, Montes de Oca, holder of identity card 1-0825-0973, TERESA JIMÉNEZ ROJAS, of legal age, married, Judicial Coordinator 2, resident of Puntarenas, Golfito, holder of identity card 6-0172-0033, TERESITA BOLAÑOS ROJAS, of legal age, single, Judicial Employee, resident of San José, Central, holder of identity card 1-0685-0508, TONY ACUÑA PANIAGUA, of legal age, single, Secretary, resident of San José, Pavas, holder of identity card 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, holder of identity card 5-0222-0486, VANESSA VILLALOBOS MONTERO, of legal age, married, Psychologist, resident of Alajuela, San Ramón, holder of identity card 2-0484-0081, VANLLY CANTILLO GAMBOA, of legal age, single, Attorney, resident of San José, Curridabat, holder of identity card 1-0874-0062, VERA VARGAS BARRANTES, of legal age, divorced, Judicial Technician 2, resident of San José, Central, holder of identity card 1-0818-0806, VÍCTOR ADRIAN RODRÍGUEZ MÉNDEZ, of legal age, married, Administrative Technician 2, resident of Heredia, Santa Bárbara, holder of identity card 1- 0730-0506, VICTOR FERNANDEZ VARGAS, of legal age, common-law union, Criminalist, resident of Heredia, Santo Domingo, holder of identity card 1-0889-0754, VICTOR HUGO CHAVES CHAVARRÍA, of legal age, married, Attorney, resident of Guanacaste, Santa Cruz, holder of identity card 2-0443-0030, VÍCTOR MANUEL AZOFEIFA MONGE, of legal age, common-law union, Investigator, resident of San José, Goicoechea, holder of identity card 1-0703-0316, VICTORIA OVIEDO SOTO, of legal age, married, Psychologist, resident of Alajuela, Central, holder of identity card 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, of legal age, married, Attorney, resident of San José, Montes de Oca, holder of identity card 1-0642-0719, WAIMAN HIN HERRERA, of legal age, married, Administrator, resident of San José, Aserrí, holder of identity card 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, of legal age, single, Assistant, resident of San José, Hatillo, holder of identity card 7-0082-0466, WALTER GONZALEZ FALLAS, of legal age, single, Attorney, resident of San José, Desamparados, holder of identity card 1-0818-0248, W ALTER GUEVARA LARA, of legal age, married, Attorney, resident of Cartago, El Tejar, holder of identity card 6- 0180-0728, WILBERT KIDD ALVARADO, of legal age, married, Economist, resident of Cartago, La Unión, holder of identity card 4-0149-0623, WILLIAM ALEJANDRO PERALTA VILLALTA, of legal age, married, Accountant, resident of Heredia, Santo Domingo, holder of identity card 1-0923-0060, WILLIAM CALDERÓN NAVARRO, of legal age, single, Attorney, resident of Puntarenas, Corredores, holder of identity card 6-0212-0756, WILLIAM MATTHEWS SALAS, of legal age, married, Investigation Officer, resident of Cartago, Turrialba, holder of identity card 7-0084-0745, WILLIAM MORA DURAN, of legal age, married, Investigator, resident of San José, Acosta, holder of identity card 1-0621-0390, WILKIN PORRAS ALVAREZ, of legal age, married, Judicial Employee, resident of San José, Guadalupe, holder of identity card 1-0772-0252, w1LMAR ANTONIO JIMÉNEZ DíAZ, of legal age, divorced, Communications Technician, resident of Guanacaste, Nicoya, holder of identity card 5-0023-0406, WILMAR PÉREZ BERMUDEZ, of legal age, divorced, Judicial Employee, resident of Guanacaste, Nicoya, holder of identity card 5-0237-0488, XARY BRICEÑO ALVAREZ, of legal age, divorced, Administrator, resident of San José, Zapote, holder of identity card 7-0085-0762, XINIA BARRIENTOS ARROYO, of legal age, single, Secretary, resident of San José, Central, holder of identity card 1-0976-0204, XINIA MARIA ZAMORA OVARES, of legal age, married, Judicial Employee, resident of Cartago, Turrialba, holder of identity card 3-0294-0379, XINIA VEGA GUZMÁN, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of identity card 3- 0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, of legal age, single, Administrator, resident of Cartago, Central, holder of identity card 1-0870-0973. YARMILA ULATE YOUNG, of legal age. married, Attorney, resident of Puntarenas, Corredores, holder of identity card 1- 0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, of legal age, divorced, Detainee Custodian, resident of San José, Central, holder of identity card 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, of legal age, single, Secretary, resident of Heredia, San Pablo, holder of identity card 1-0664-0089, YENSY CAMPOS BARBOZA, of legal age, married, Judicial Technician, resident of Guanacaste, Liberia, holder of identity card 5-0293-0434, YESENIA MARIA MELENDEZ VARELA, of legal age, single, Librarian, resident of Cartago, Oreamuno, holder of identity card 1-1404-0477, YESENIA PANIAGUA GÓMEZ, of legal age, single, Psychologist, resident of San José, Zapote, holder of identity card 1-0845-0494, YESENIA ZAMORA BADILLA, of legal age, single, IT Specialist, resident of San José, Central, holder of identity card 1-0991-0793, YORLENDA SPENCE THOMAS, of legal age, single, Judicial Technician, resident of Limón, Central, holder of identity card 7-0103-0835, YORLENY CHING CUBERO, of legal age, Judicial Employee, resident of San José, Central, holder of identity card 7-0119-0457, YORLENY FERRETO SOLANO, of legal age, divorced, Attorney, resident of Heredia, Central, holder of identity card 4-0155-0255, YORLENY SALAZAR NARANJO, of legal age, single, Attorney, resident of San José, Ciudad Colón, holder of identity card 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, of legal age, married, Judicial Employee, resident of San José, Central, holder of identity card 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, of legal age, married, Attorney.

resident of Guanacaste, Liberia, holder of identity card 5-0262-0980 and YURLY ARGUELLO ARAYA, of legal age, married, Process Head, resident of Heredia, San Isidro, holder of identity card 1-0870-0756, and states that, in accordance with the provisions of articles 81 and 83 of the Ley de Jurisdicción Constitucional and within the period established in the ruling issued at 13 hours 05 minutes on February 22, 2019, which allowed the consolidated unconstitutionality actions under docket numbers 19-007819-0007-CO, to proceed, filed under case file numbers 18-008202-0007-CO, 18-008267-0007-CO, 18-008292-0007-CO, 18-008591-0007-CO, 18-013217-0007-CO, 18-014168-0007-CO, 18-007820-0007-CO and 18-9275-0007-CO, filed by Mario Alberto Mena Ayales, in his capacity as President of the Asociación Nacional de Empleados Judiciales; Juan Carlos Sebiani Serrano, in his capacity as President of the Asociación Nacional De Profesionales del Poder Judicial, Hernán Campos Vargas, in his capacity as Secretary General of the Sindicato de Trabajadores y Trabajadoras del Poder Judicial (Sitrajud); Yesenia Paniagua Goméz, in her capacity as President of the Asociación de Profesionales en Psicología del Poder Judicial; Alvaro Rodríguez Zamora, in his capacity as President of the Sindicato Asociación de Investigadores en Criminalística y Afines, Johnny Mejías Ávila, in his capacity as President of the Board of Directors and Óscar Enrique Umaña Chacón, in his capacity as General Manager, both of the Cooperativa de Ahorro y Crédito de Servidores Judiciales, Responsabilidad Limitada (Coopejudicial, R. L.), Damaris Molina González, in her capacity as President of the Asociación Nacional de Jubilados y Pensionados del Poder Judicial; Jorge Luis Morales Garcia, in his capacity as Secretary General of the Sindicato de la Judicatura (Sindijud); Ana Luisa Meseguer Monge, in her capacity as President of the Asociación Costarricense de Juezas; Carlos Álvarez Casasola, in his capacity as President of the Caja de Préstamos y Descuentos de los Empleados del Poder Judicial (Caprede), Adriana Orocú Chavarría, personally and in her capacity as President of the Asociación Costarricense de la Judicatura; Ingrid Fonseca Esquivel, Freddy Arias Robles, German Esquivel Campos, Yerma Campos Calvo, Maribel Bustillo Piedra, Pedro Valverde Díaz, Juan Carlos Cubillo Miranda, Maykel Coles Ramos, Alonso Hernández Méndez, Ana Lucía Vásquez Rivera, Estrella Soto Quesada, Mario Alberto Sáenz Rojas, Paula Esmeralda Guido Howell, Danilo Eduardo Ugalde Vargas, in his capacity as special judicial representative of Eduardo Sancho González, Rosa Iris Gamboa Monge, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Jorge Rojas Vargas, Álvaro Fernández Silva, Luis Fernando Solano Carrera, Alfredo Jones León, Rodrigo Montenegro Trejos, Alfonso Chaves Ramirez, Anabelle León Feoli, Ana Virginia Calzada Miranda, Eva María Camacho Vargas, Rafael Ángel Sanabria Rojas, Mario Alberto Houed Vega, Rolando Vega Robert, Adrián Vargas Benavides and Oscar Luis Fonseca Montoya, appears to file an ACTIVE JOINDER (COADYUVANCIA ACTIVA), within the legal period granted, because his represented parties have pending matters as of the date of filing of said actions, and because ALL have a legitimate interest, due to the automatic application of Transitory Provision VI (Transitorio VI), contained in Law No. 9544 (Ley n° 9544), the Law Reforming the Retirement and Pension System of the Judicial Branch (Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial), contained in Law No. 7333 (Ley n° 7333), Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), of May 5, 1993, and its amendments, this because all have more than TWENTY YEARS OF CONTRIBUTIONS to the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial). He argues that he joins the actions being processed because Law No. 9544, its approval procedure within docket No. 19.922, and specifically Transitory Provision VI, contained in said law, are contrary to the provisions of Conventions 102, 118, 128, and 157 of the International Labour Organization, Article 26 of the American Convention on Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 9 of the International Covenant on Economic, Social and Cultural Rights, Articles 9, 11, 18, 27, 28, 33, 34, 40, 41, 45, 50, 51, 65, 73, 74, 121, 152, 154, 156, 167, 177, 188, 189, and 190 et seq. and concordant articles of the Political Constitution of Costa Rica, Articles 29, 30 and 31, 33, 35, 38, 44, 45, 46, 49, 50, 51, 53, of the Ley de Jurisdicción Constitucional, which he believes to be the case based on the following. As is well indicated in the actions being processed, the provisions and actions of the Legislative Assembly have led to the enactment of an unconstitutional Law, preceded by a null parliamentary procedure. In turn, he alleges that the Consejo Superior of the Judicial Branch, through its administrative acts, executed an unconventional and unconstitutional law, and by acting without the competence to apply the powers established in that law, we are in the presence of unconstitutionalities and transgressions of the fundamental rights and freedoms of the claimants and their represented parties, as indicated in Article 29 of the Ley de Jurisdicción Constitucional. He points out that he joins the actions filed because, in his opinion, Law 9544 is contrary to Conventions 102, 118, 128, and 157 of the International Labour Organization, Article 26 of the American Convention on Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 9 of the International Covenant on Economic, Social and Cultural Rights, Articles 9, 11, 18, 27, 28, 33, 34, 40, 41, 45, 50, 51, 65, 73, 74, 121, 152, 154, 156, 167, 177, 188, 189, and 190 et seq. and concordant articles of the Political Constitution of Costa Rica, Article 208 bis of the Regulations of the Legislative Assembly, as well as the principles of Democracy, Equality, Publicity, Solidarity, Legal Certainty, Good Faith, Legitimate Expectations, Transparency, Relative Intangibility of Assets, Non-Confiscation, Respect for acquired rights and consolidated legal situations, as will be set forth. He argues that there are reasonings of unconstitutionality in form and substance. He states that, regarding the procedure, there is unconstitutionality in the publication because a text different from the one approved was published. He indicates that, as the claimants rightly point out, the substitute text approved in the Reviewing Committee of Legislative Docket No. 19.922 on September 13, 2016, was published in the Gazette and duly consulted with the Judicial Branch; however, that text was not the one approved in the first debate by the Legislative Assembly on October 30, 2017, nor was it the one published in Gazette No. 268 of November 9, 2017. He argues that the aforementioned action by the Legislative Assembly is contrary to the motion approved in light of Article 208 bis of the Regulations of the Legislative Assembly and, consequently, contrary to Constitutional law, as the minimum procedures required by a special parliamentary procedure like the one followed in the case of said docket were not observed. He points out that the absence of publication of the approved text entails a violation of the legislative procedure that makes the approved Law unconstitutionally flawed. Note that within the procedure established for the approval of Law No. 9544, it was expressly provided: "h.- If, during the hearing of the docket in its committee proceedings, a substitute text motion is approved or when the committee agrees on changes that substantially modify the bill, the Committee Presidency shall request the Legislative Directorate to agree on its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity; the hearing of the bill shall be suspended, also proceeding accordingly to make the corresponding consultations" (emphasis not in the original). He argues that from docket 19922 it is clear that the approved text differs substantially from those published, so that, according to the rule transcribed above, the corresponding publication was necessary to provide certainty and guarantee the Principle of Publicity and Participation, which were violated by the action of the Legislative Assembly in approving a norm with legislative defects of unconstitutionality. On the subject, the dissenting vote in ruling No. 2018-005758, issued at 15:40 hours on April 12, 2018, rendered within the Optional Legislative Consultation of Constitutionality, stated: 'No other updated text was published since neither did the respective Committee take any agreement to request it from the Legislative Directorate, nor did the Committee President do so properly. Moreover, the procedural motions in the Legislative Plenary aimed at approving its publication were systematically rejected by the majority of the honorable deputies; for all the aforementioned, said publication was not carried out." Consequently, from reading the content of the substantive motions approved in the special committee, this Constitutional Court estimates, unanimously, that there was an essential defect in the legislative procedure of an evident and manifest nature that violated the principles of publicity and equality by omitting its publication, given that, collectively, they caused a substantial modification of the original text. He indicates that, by not having strictly observed the special procedure established via Article 208 bis of the Regulations of the Legislative Assembly in the processing of the bill under consultation, due to having omitted the publication of the substitute text of the bill under consultation approved by the Special Committee in a session on September 23, 2016, an essential defect was incurred in the legislative procedure for law formation, violating the democratic principle and the principle of publicity, without the definitive substitution of said text being able to validate the procedure. He states that in the separate note of that same vote, it was said: "In this context, it cannot be ignored that the motion governing the approval procedure for the bill under consultation indicates that it must be published in the event there is a substitute text. Therefore, this hypothesis involved a transgression of what is indicated in the motion governing the procedure (furthermore, since it concerns the application of Article 208 bis, that motion serves as the regulatory norms for that specific bill), as any type of regulated publication is an essential requirement" (emphasis not in the original). He indicates that, in this way, in the reasoning of the Magistrates who dissented from the majority vote, it was pointed out that, since it is an abbreviated legislative procedure, the Principle of Publicity already mentioned must be respected with greater rigor. He argues that, being in the presence of a procedure with dispensations from the ordinary constitutional one, the figure of validation or cure cannot be used in any way, much less regarding such an important requirement as publicity given the omission that occurred in docket 1992, since not only was the publication of some norms that did not vary the essence of the bill omitted, but the text converted into law was entirely omitted, which renders Law No. 9544 unconstitutionally flawed, for not observing the constitutional principles governing the parliamentary procedure and Article 208 bis of the Regulations of the Legislative Assembly, as well as constitutional numeral 121. He states that, in any case, even if one wished to apply the thesis of cure and validation, in this case, it becomes impossible, because the defect cannot be remedied - by the act of publishing the substitute text after being approved in the first debate - because, in order to comply with the Principle of Publicity, all Costa Ricans must be allowed to know the bill while it is still a bill, and not when it has already undergone a first debate, which has been recognized by the Constitutional Chamber itself, when in its pronouncement No. 2005-398, issued at 12 hours 10 minutes on January 21, 2005, it reiterated its position when analyzing the bill called "Ley de Solidaridad Tributaria" and in its ruling No. 2012-004621 issued at 16:00 hours on April 10, 2012, stated:

“This Constitutional Court warns that when the Legislative Assembly, via a procedural motion under Article 208 bis of the Regulations, creates a special procedure, its application and observance must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it will always be an exception. The duty of the various legislative bodies to adhere, zealously and scrupulously, to the previously designed special procedure prevents any infringement of the principles of legal certainty. Consequently, before a special and fast legislative procedure, the previously established terms, stages, and requirements must be subject to a restrictive and rigorous interpretation.

(…)

Consequently, from reading the content of the substantive motions approved in the special committee, this Constitutional Court estimates, unanimously, that there was an essential defect in the legislative procedure of an evident and manifest nature that violated the principles of publicity and equality by omitting its publication, given that, collectively, they caused a substantial modification of the original text (our emphasis)." More recently, it reiterated its criterion in ruling No. 2017-19636 issued at 9:15 hours on December 6, 2017, as follows:

“In this sense, these circumstances and the obligation to publish bills are contained in the principle of publicity that must serve as a vector of legitimacy for any representative body of popular sovereignty.

(…)

Now then, the jurisprudence of this Chamber has been decisive in assigning significant weight to the principle of publicity as a substantial requirement within the legislative process, regarding ordinary law and constitutional amendment (…)." Note, esteemed Magistrates, that the unpublished text, which became Law No. 9544, varied aspects such as retirement age, years of service, worker contribution, years of service, the transitory period, among others, hence the imperative need to fulfill the requirement of publicity, as all these aspects are of clear public interest, because public resources of the Judicial Branch were under discussion and, yet, without any justification, they were not duly communicated to the general population and particularly to the judicial population. He points out that we are facing infringements of the legislative procedure that result in the unconstitutionality of Law No. 9544; this unconstitutional law has generated violations of his represented parties' fundamental rights to a dignified, proportional, and reasonable retirement, in accordance with their life project and their employment contract, for which reason it is requested that the ongoing unconstitutionality actions be declared with merit, due to the violations committed by the Legislative Assembly in the procedure for approving the law reforming the Retirement and Pension System of the Judicial Branch. He adds that there are also defects of constitutionality in the publication, because a text different from the one consulted was approved, this because the finally approved text was not consulted with the Judicial Branch, as stipulated by Article 167 of the Political Constitution. He adds that it is evident from the legislative file that the bill voted on in the first debate contained substantial changes, such as worker contribution, retirement age, years of service, functions withdrawn from the Consejo Superior, transitory provisions, among others, compared to the bill recommended by the Committee and which was the last one consulted with the Judicial Branch on July 27, 2017; therefore, that voted-on bill turns out to be a substitute text introduced through a motion and was not duly consulted with the Full Court (Corte Plena), thereby contravening the provisions of constitutional Article 167, so that, in his view, it is not correct to affirm that the Supreme Court of Justice was consulted on the bill that became a law of the Republic, because the last text consulted was the affirmative opinion of the corresponding Committee, but it underwent the already indicated changes. He points out that the foregoing necessitates an analysis of the constitutional implications contained in the aforementioned Article 167 and the serious transgression that the absence of consultation with the Judicial Branch regarding the bill that became Law No. 9544 entails. He adds that there is a violation of Article 167 of the Political Constitution, which he considers to be another of the most serious defects facing the approval of Law 9544, violating the human rights of his represented parties, since that numeral was not observed, which establishes:

“For the discussion and approval of bills relating to the organization or operation of the Judicial Branch, the Legislative Assembly must consult the Supreme Court of Justice; to depart from its criterion, the vote of two-thirds of all members of the Assembly is required” (emphasis not in the original).

He considers that, from the transcribed norm, the following aspects of utmost relevance for this action are highlighted: the constitutional precept is clear in indicating that they must be consulted, that is, it is not an optional but a mandatory duty of the Legislative Assembly to consult the Judicial Branch on all those bills related to its organization or operation, from which it follows that not only those bills related specifically to the administration of justice function of the Judicial Branch must be consulted, but also everything related to its organization, and not only its performance in the judiciary, since the norm does not make such a distinction. He adds that it is also important to note from this article that, in order to depart from the criterion of the Judicial Branch (which becomes binding for this type of bill), the Legislative Assembly requires the vote of two-thirds of its members, that is, a qualified majority. He indicates that this leads to the study of the correct understanding between the organization and the operation of the Judicial Branch when in the presence of the mandatory consultation established in Article 167 of the Political Constitution. He points out that the bill contained norms directly related to the organization of the Judicial Branch; an organizational reform that involves not only the Judicature sector but also the Auxiliary Justice field and the entire administrative apparatus that supports the Administration of Justice of the country, as it is noted that functions are removed from the Full Court, the Consejo Superior, the Executive Directorate, the Audit Office, the Human Resources Management, and the Financial Accounting Department, all of the Judicial Branch, to create a Fund Administration Board as an organ of the Judicial Branch over which the Full Court has no competence as the superior body of the Judicial Branch. He states that it is not correct to affirm that only bills related to the functions and competencies of the Judicial Branch must be consulted, because from the constitutional text, the word "or" appears as a disjunctive conjunction, which creates a separation between the two terms "organization" and "operation" and makes them exclusive and alternative to one another. He believes that, in this way, the operation of the Judicial Branch should not be analyzed as the sole aspect protected by Article 167 of the Political Constitution, but rather that the constitutional norm contemplated both scenarios; therefore, a bill must be consulted both when it refers to organizational aspects that include internal and administrative matters of the Judicial Branch, as well as those functions that are sought to be regulated or competencies arising from new legislative reforms. He indicates that this is how it was understood by the minority of the Magistrates who, in their dissenting vote in ruling No. 2018-005758, issued at 15:40 hours on April 12, 2018, referred to the topic as follows:

"However, in the opinion of the undersigned, such interpretation of the constitutional numeral, restricted solely to the jurisdictional function, derives neither from the text of the Fundamental Charter nor from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it should be noted that, with respect to the first three rulings, what the majority asserts in its vote cannot be inferred from them. Thus, in Ruling No. 1998-5958 issued at 14:54 on August 19, 1998, what is developed is only the term 'operation' - of the binomial 'organization or operation' - of the Judicial Branch, without referring to the topic of the organization of that Branch of the Republic" (Emphasis not in the original).

In addition to the foregoing, he indicates that this pronouncement points out that the concept of organization of the Judicial Branch has not been developed by the Constitutional Chamber, and the pure operation, which has indeed been the subject of analysis by that Constitutional Court, should not be confused. He argues that, in this scenario, it is clear that what must be analyzed by the Constitutional Chamber is what relates to the organizational part of the Judicial Branch that is being affected by the entry into force of Law 9544, and that, in addressing the regulation of aspects inherent to the organization of the Judicial Branch, the mandatory consultation regulated in Article 167 of the Political Constitution is required, which, as already well indicated, does not differentiate between aspects of operation or organization of the Judicial Branch, but rather contemplates the scenarios independently, and when faced with bills concerning and involving both operation and organization, the prior consultation, which is lacking in this matter, is required. He points out that, in support of this thesis, it is pertinent to transcribe an excerpt from the already indicated dissenting vote:

"Certainly, it is evident that what was expressed was limited to examining matters related to the exercise of jurisdictional competencies of the Courts of Justice, since it was on that particular aspect that the consultation focused. But the Chamber did not say that this is the only instance in which consultation under Article 167 of the Political Constitution is mandatory, but rather what it said is that, in that case, it is mandatory, without referring to other cases where it also is, such as matters concerning the organization and administrative competencies of the Judicial Branch, the particularities of the jurisdictional function versus the purely administrative function, even though judges and judicial auxiliaries are also public officials" (emphasis not in the original).

In any case, he argues that this Constitutional Court, in the majority vote of the aforementioned Optional Legislative Consultation, also does not fail to recognize that administrative aspects form part of the operation of the Judicial Branch, as is the case with the Retirement and Pension Fund of the Judicial Branch, which forms part of the internal domain of each judicial office. In that ruling, the Chamber mentioned:

"From the preceding discussion, as well as from the text of the recently transcribed norm, it is possible to further specify the conditions under which a bill cannot be transferred to one of the full legislative committees. Indeed, the matters that mandatorily require a consultation with the Supreme Court of Justice are those referring 'to the organization or operation of the Judicial Branch,' where the term 'Operation' alludes not only to the aspects of the internal administrative regime of judicial offices but also to the procedural matters governing the processing of the various matters submitted to those courts, so it is mistaken to think that this consultation only needs to be carried out when strictly dealing with procedural matters" (our emphasis).

And in its pronouncement number 2008-5179 issued at 11:00 hours on April 4, 2018, it referred to it as transcribed:

“The majority of this Constitutional Court considers that a bill deals with such matters when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional or administrative bodies attached to the Judicial Branch, or alternatively creates, substantially modifies, or eliminates materially jurisdictional or administrative functions." He argues that the preceding transcripts reflect that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect impact on the jurisdictional function, obligate the Legislative Assembly to present the consultation under the terms expressed in Article 167 of the Political Constitution. This being a natural consequence not only of Article 167, but also because other constitutional norms, such as numerals 9, 154, and 177 of the Magna Carta, safeguard judicial independence. He adds that, having clarified the scope of constitutional Article 167, it is evident that the Legislative Assembly omitted to carry out the respective consultation with the Judicial Branch, without said aspects having been previously included in the texts consulted with the Supreme Court of Justice, thus incurring a violation of the duty imposed in the constitutional precept, and consequently, the procedure followed prior to the approval of the modified opinion is null and void from a constitutional standpoint and must be so declared, the foregoing because the Retirement and Pension Fund of the Judicial Branch is an intrinsic part of its functional and organizational activity. He points out that the genesis and nature of the Retirement and Pension Fund of the Judicial Branch dates back to the 1930s, when legislators, concerned about the social and political budgetary stability required by the Judicial Branch, thought that one of the essential aspects for achieving such security was that judicial officials could have a future after their work that would allow them to ensure a dignified life in accordance with what each judicial official gave in service to the country, given their labor so sensitive to Costa Rican institutionality. It is for this reason that the Fund responds to criteria of stability, independence, preparation, and suitability; it forms part of the employment contract of each judicial servant and is a way to incentivize qualified personnel to work for the institution, with the aim of promoting the permanence of trained and qualified personnel, whereby the reduction of retirement benefits represents a disincentive for the entry of valuable professionals who, considering the economic result of a future assessment, would prefer to pursue their professional career in another labor field. This is how it was understood by the Full Court when, in its session No. 27 of August 7, 2017, Article XXX, when it referred to the consultation made by the Legislative Assembly, indicating:

"On the other hand, the renewal of personnel who manage to stay is affected. The Judicial Branch would have elderly officials who remained working solely because of the decrease their income would suffer upon retirement. The judicial population would be at a crossroads where, although it is true that they desire to opt for that right and are motivated to retire and rest, they find themselves placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal or acquired expenses prior to the pension, and those natural due to age-related reasons. However, that process also has its restrictions; from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired persons from seeking other work, and socially it is a reality that after the age of forty, there are factual limitations regarding labor re-entry.

It has great relation to the structure and operation, as it reduces the Judicial Branch's competitiveness in the labor market to the detriment of the quality of the Administration of Justice. The salary for positions is diminished by the contribution to the retirement and pension system, which is four times greater than the contribution of other systems.

This hinders the recruitment of human resources and is detrimental to the public service.

Furthermore, the regulation of the Pension and Retirement Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial) should not be assessed solely from an economic perspective, since we are dealing with fundamental rights—non-waivable—associated with every worker who, during their working years, contributed a higher percentage than the general rate to a regime with the expectation of having a pension that allows them to meet their needs and enjoy, together with their environment, their retirement years peacefully and with quality of life.

The imposition of this new tax burden affects vulnerable population groups—such as older adults, harming the weakest party, the one that precisely requires greater protection from the State.

The proposed tax is imposed at a time in the retired person's life when they are most vulnerable, close to or already of advanced age. It cannot be overlooked that it is at this stage where people generally require more medical care, special care, among other things, and that during their working life, some contributed more or less, according to their income, to the regime with the expectation of having the resources foreseen to face this process, and if this Bill were approved, that life plan would be cut short.

It would cause a significant social impact since people in retirement lose, suddenly, an important part of their income, but maintain a status of pre-established expenses, which becomes a repercussion, not only economic, but also on their health, being contrary to the objective foreseen for a pension system, which is to have sufficient income during post-working life, a scenario within which it is important to remember that on many occasions, the retired person continues to have under their care and support other older adults or minors.

Corollary, regarding the Bill processed under file number 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch." It adds that the Constitutional Chamber itself (Sala Constitucional) has viewed the Pension and Retirement Fund of the Judicial Branch as part of the structure and functioning of the Judicial Branch, forming an internal part of the institution, of each judicial employee, of their life project, and of their families, and in that sense, see what was stated in judgment No. 2018-005758, of 3:40 p.m. on April 12, 2018:

"What is clear is that the creation of the Judicial Branch pension regime was key to the stability of the administrative and judicial career of its servants and officials and came to be a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. It allowed, together with this, to give stability to judges and other servants and officials while active and inactive, which made the judicial career attractive to many jurists and thereby favored the stability and specialization of many officials in different branches of the judicial apparatus (…)" It indicates that, in this way, always, since its creation, the Fund was conceived within the life project of all judicial employees, since the existence of the Pension and Retirement Fund of the Judicial Branch responds to criteria of stability, independence, preparation, and suitability; it is an element that promotes the permanence of trained and qualified personnel in the institution. It argues that, it being clear that the Pension and Retirement Fund of the Judicial Branch is an intrinsic element of the employment contract and of the future expectation that each judicial employee and their families have, it constitutes an internal element of the Judicial Branch's organization and, as such, the constitutional consultation already studied should have been mandated. It considers that such a drastic modification suffered, with nullities in the legislative procedure, can only come to the granting of this remedy due to the violations of the fundamental rights of its represented persons. It indicates that this, coupled with the unconstitutionality arising from the lack of a qualified majority with which Bill No. 19922 was voted, makes Law 9544 violative of the fundamental rights of judicial employees since it did not have two-thirds of the members of the Legislative Assembly for its approval. In this sense, it points out that there is an absence of a qualified majority to depart from the binding opinion of the Judicial Branch and proceed with the approval of the law; an opinion of the Supreme Court that was negative on three occasions when it was consulted about the bill to reform the Pension and Retirement Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial), with the Court being emphatic in indicating its negative position regarding such reform, which automatically obliged the Legislative Assembly to enact Law 9544 with the requirement of a qualified majority, that is, that those votes be carried out with at least two-thirds of the votes of the 57 Deputies of the Legislative Assembly; however, as is clear from the legislative file, the vote in the first debate of the bill did not reach the total of two-thirds of the Deputies. It adds that Article 208 bis of the Assembly's Regulations establishes that the only bills submitted to an abbreviated and special procedure, which can be voted with a simple majority, are those regarding which there is no negative mandatory consultation; a scenario that does not occur in this case, since the unconstitutionality and violation of the human rights of its represented persons has occurred because Article 208 bis of the Assembly's Regulations was applied to Law 9544, provided only for matters whose required vote is a simple majority, without noticing that, in this matter, a vote adopted by a qualified majority was required, because the Full Court had expressed a negative opinion regarding the bill. It indicates that, from legislative file 19922, it is clearly evident that the qualified majority established by the Political Constitution as mandatory in these types of cases was not achieved in either of the two votes. Thus, in the first debate that took place in extraordinary session No. 14 of October 30, 2017, the Plenary approved the affirmative report issued by the Special Commission with 31 votes in favor and 7 against; and in the second debate, which took place in ordinary session No. 163 of April 19, 2018, it was approved with 34 votes in favor and 9 against, despite the requirement being 38 votes in favor to comply with constitutional observance. It considers that it is evident that in the lawmaking process, the need for a qualified majority in the vote, according to constitutional Article 167, was breached, and therefore this action must be declared with merit. It adds that another of the violations within the legislative procedure followed in file 19922 and subsequent Law No. 9544, is the transgression of constitutional Article 9 which contemplates the Principle of Independence of Powers. It recalls that the Chamber has pointed out that it is part of judicial independence for judicial employees to have dignified economic sufficiency. In judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, already cited, that body stated:

"In that sense, it was a success of the legislator to provide guarantees and incentives to the Costa Rican administration of justice, because only in this way could the rule of law that emerged from the Second Republic be materialized, which would depend for its success on a robust regime of legality and no longer—as was said—on the force of arms, a path that most countries of the world, especially Latin American ones, had opted for. If this, which was already granted almost eighty years ago, is not respected, the Principle of Progressivity of Human Rights, Article 26 of the American Convention on Human Rights (Convención Americana de Derechos Humanos), is violated." And in that same ruling (vote No. 2008-5179), it went on to say:

"On this point, it is important to clarify that the functional independence of the Judicial Branch, established in Articles 9 and 102, reinforced in Article 154, all of the Political Constitution, necessarily implies the power of said Branch of the Republic to give itself its own organization, in order to prevent, especially, the intrusion of political interests in its function. And this organizational independence, both administrative and jurisdictional, is what is also protected in constitutional numeral 167.

(…)

Precisely, one of those characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is Independence, in its double aspect, both of the Judicial Branch itself considered, and of the judge and other auxiliaries of the jurisdictional function. (…) This implies an extremely delicate function and a great responsibility which could not be carried out if the functional independence of the Judicial Branch and of the judges who comprise it is not guaranteed. And, in this sense, there cannot be true independence if the salaries and pensions and retirements of judges and justice auxiliaries are not in accordance with their responsibilities, much graver than those of any other official who exercises a merely administrative public function. Hence, both can in no way be equated, neither in responsibilities nor in functions, nor salaries, nor in retirement rights." It argues that, according to what has been transcribed, it is evident that the Judicial Branch has been granted independence and separation of powers through the Political Constitution, in Articles 9 and 154, so any bill that affects its structure and activity must be obligatorily consulted to that institution. It adds that, in the specific case, the intrusion into the independence of the Judicial Branch by the Legislative Assembly is constituted by the creation of the Administrative Board of the Fund (Junta Administrativa del Fondo), established in Articles 239 and 240 of Law 9544. It points out that the creation of a structure within the Judicial Branch but independent from it in every sense, which modifies the competencies and functions of both the Full Court and the Superior Council, constitutes an intrusion into the independence and separation of Powers established in Articles 9 and 154 of the Political Constitution. It points out that the independence of the Judicial Branch was breached despite the fact that the Original Constituent Assembly expressed its intention to guarantee it, at the budgetary, political, and functional levels, by promulgating norms such as Articles 9, 154, 167, and 177 of the Political Constitution, which were ignored by the Legislative Assembly. It argues that, with the violative and null proceeding of the Legislative Assembly in not carrying out the mandatory consultation established in Article 167 of the Political Constitution, the principles of independence and separation of powers established in numerals 9 and 154 of the Political Constitution were violated, and therefore the Constitutional Chamber is requested to grant this action and declare the unconstitutionality of the norm approved under the absolutely null procedure already mentioned. It points out that the Pension and Retirement Fund of the Judicial Branch is not only part of the retirement regime but also of the employment contract, so there is a modification of it for those who have contributed to the Pension and Retirement Fund of the Judicial Branch for 20 years or more. It indicates that its represented persons are suffering the automatic application of a transitional provision so severe and never before applied to any group with consolidated legal situations in retirement matters, and it considers that this norm represents a disincentive for valuable professionals to continue working at the institution, who, attending to the economic result of a future evaluation, would prefer to pursue their professional career in another work environment. It indicates that its represented persons made a life project given the working conditions that were offered to them and that, within these, was the enjoyment of a dignified retirement through the Pension and Retirement Fund of the Judicial Branch upon the reasonable fulfillment of years and age, that being the moment in which they could retire with a dignified income, after having given an entire productive life in the service of the community and the Judicial Branch, it now not being reasonable or proportional, that a few years from reaching the fulfillment of requirements established by the legislator, these are varied without a technical study that supports the appropriateness of the new measures to be applied. It adds that the Judicial Branch would have officials of advanced age, who remained working solely due to the drastic variation in the service time they would have to fulfill, even though they no longer have the physical and intellectual capacities required by the judicial function. It points out that the judicial population would be at a crossroads where, although it is true, they have the desire to opt for that right and the motivation to retire to rest, they are placed in a condition in which, due to the application of an arbitrary, unfounded transitional norm, without the support of a technical study, the life project of those who placed their legitimate trust and good faith in the institution as employer and in the expectation of having a dignified retirement through the Pension and Retirement Fund of the Judicial Branch, for which they have contributed for many years, giving a significant portion of their monthly salary, is truncated, which implies a variation in the conditions of the employment contract that 20 years or more ago were agreed upon between the plaintiffs, their represented persons, and the Judicial Branch. It indicates that the Pension and Retirement Fund of the Judicial Branch should not be assessed solely from the economic perspective since one is dealing with fundamental rights—non-waivable—associated with every worker, who during their working years contributed a higher percentage than the general rate to a regime with the expectation of having a pension that allows them to meet their needs and enjoy, together with their environment, their retirement years peacefully and with quality of life, so that going from being a short time away from retiring, to currently having a dozen or more pending years of work applied to them, all due to the automatic application of an unconstitutional norm, is clearly arbitrary, irrational, disproportionate, violative of the principles of equality and equal bearing of public burdens to the detriment of the plaintiffs and their represented persons. It warns that in the case under study, not only is the discussion of a right to retirement at issue, but that membership in and eventual enjoyment of a retirement charged to the Pension and Retirement Fund of the Judicial Branch forms part of the employment contract and the working conditions that were established at the time for their represented persons, which have been maintained for 20, 25, and 28 years of service, it being contrary to the law of the Constitution and human rights that they receive such a drastic modification as was established in Transitory VI of Law 9544, therefore it would be contrary to the right to work and to retirement established in Article 73 of the Political Constitution, determined as non-waivable rights, for which they have expected and contributed a significant part of their salary. It indicates that for this reason, it is requested that the unconstitutionality of said norm be declared and that those who appear in the actions, as well as their represented persons, be allowed to retire under the conditions prior to said reform, given the amount of time they have remained in the regime in question, with certain contractual conditions. It indicates that, taking a recount of the modifications that have been made to other pension regimes in the country, it can be observed that there has never been such a drastic modification as the one that has been made to the retirements and pensions of the Judicial Branch, with the entry into force of Law 9544. It argues that while it is understood that there is no right to the immutability of the legal system, the truth is that in the reforms of other regimes, transitional norms have been created that have allowed their entry into force in a reasoned, staggered, and proportional manner. It indicates that all legal reforms to the retirement regimes made in Costa Rica, whether of the first pillar or of other substitute ones existing in the country, have had transitional norms that allow gradualness in their application, respecting acquired rights, consolidated legal situations, and allowing the entry of the reform to the population in a way that does not violate their fundamental rights, arguing that even the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) itself in 1994 allowed a staggered transitoriness, respectful of human rights. It points out that only Law 9544 is the one that, arbitrarily and without technical support, establishes a minimum period of 18 months to enjoy a retirement under the conditions prior to the entry into force of said law; a moment at which practically only those who were close to fulfilling the retirement conditions would have the right, which becomes disproportionate, irrational, and extremely burdensome for the legal sphere of the plaintiffs and specifically of their represented persons. It adds that Article 33 is violated regarding the transitional modifications of the contested Law with respect to the other retirement regimes of the country because people who have more than 20 years of service are in an unequal situation because in other regimes, people in equal conditions have had a staggered transitional period that was not granted to judicial employees. It warns that judicial employees have gone from having an expectation of prompt retirement, to having to work more than a decade to then receive a retirement that does not correspond to even 50% of their salary, even though they have contributed a substantial sum of their monthly salary income for more than 20 years. It considers that it is completely discriminatory and violative of fundamental rights to directly affect such a vulnerable population, and with scarce sources of work in the country, since it must be taken into account that due to their age and time of service, it is no longer easy for them to seek other work alternatives. It indicates that workers have the right to a dignified retirement, but with the new parameters, irreparable damage is being caused to judicial workers, as well as a breach of constitutionality, because the fundamental rights to equality, proportionality, and reasonableness are harmed. It states that within the legislative file, it was not proven that there was a danger to the Fund's finances in allowing the group of people who were 10 years or less away to acquire the retirement right, so Transitory VI becomes arbitrary and violative of the rights of its represented persons. It indicates that Constitutional Courts of other countries have recognized the right to a differentiated treatment that people who are close to acquiring retirement requirements have when legislative modifications have occurred. It states that, if they already have more than 20 years of judicial service, it is difficult to make the decision to resign due to the gross extension of those terms and given the large amount of money that these people have invested in the Fund, since it was incorporated into their working conditions as an expectation of enjoying a determined future that is now being varied without any technical or legal support. It indicates that for this reason, it is necessary to differentiate, by means of a transitory provision, the different conditions of active persons, and requests the Chamber to apply comparative law and adopt the position of other tribunals in accordance with the principle of progressivity of human rights. It points out that another difference in treatment has occurred in Transitory II in relation to those who work at the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), for whom an unrestricted right to recognition of their retirement conditions was declared, even though they are in the presence of repealed regulations, regardless of the time it might take them to fulfill those requirements. It indicates that this Transitory provision reveals the unequal treatment that is being given, within the same law, to its represented persons and the workers of the Supreme Electoral Tribunal, for whom their legal situations are in fact being respected and they are even allowed the transfer to another retirement regime much less confiscatory than that of the Judicial Branch Fund. It points out that in view of the fact that Transitory VI is contrary to the Principle of Equality enshrined in Article 33 of the Political Constitution, the Chamber is requested to declare the unconstitutionality of said transitory norm and to restore the plaintiffs and their represented persons to a legal situation of equality with respect to the other retirement groups in the country. It adds that regarding Transitory VI, there is no legal basis that supports the 18-month period granted for the application of the new Reform; a period that is irrational and capricious, because there is no legal basis or technical criterion that supports it. It indicates that this is a radical change to the working conditions under which their represented persons signed on as employees of the Judicial Branch. It recalls that Costa Rica, being a State of Law (Estado de Derecho), and legal certainty (seguridad jurídica) is the means of covering social, economic, and individual needs; it is the trust granted by all citizens for the norms to be applied, and that they be valid and in accordance with Law, and not as with the Reform to the Pension Fund, which besides being unconstitutional, does not respect the basic principles of the State of Law, which is why it raises its disagreement with Law 9544. It argues that Transitory VI violates the Principle of Social Security and transgresses the rights of its represented persons because an almost non-existent period was granted for the conservation of consolidated legal situations. It recalls that, on repeated occasions, the Constitutional Chamber has indicated the possibility of modifying the retirement right but under proportional conditions, and not as in this case by setting a capricious transitory period, without any legal or technical basis. It recognizes that the Chamber has pointed out that the right to retirement is not unrestricted since it can be subjected to certain limitations, but it also indicated in its judgment No. 5758-2018, that these variations were permitted as long as they are established by a formal law, are reasonable, and do not affect its essential content, which, in its opinion, is clearly not respected in the specific case since Law No. 9544 essentially changes all the retirement conditions to which some of the plaintiffs and their represented persons were entitled, because they had an expectation for many years and now the conditions of time served, salary, mandatory contribution amount change, the income that would be received as a retirement substantially changes, and above all, the remaining service time changes despite the fact that the majority have more than 25 years of service to the institution. It recalls that these retirement modifications are incorporated through a law that is vitiated by unconstitutionality, which has defects in its legislative procedure, and therefore it cannot be taken into account as a legal means for the incorporation of such retirement modifications. It states that, respectfully, it is brought to the Chamber's attention that the affirmation that the questioned transitory norm is not unconstitutional because it was fixed on parameters and requirements based on the opinion of experts who were received by the Special Commission that issued a report on legislative file number 19922 is not correct, because in reality there is no technical support within the file that determines that the reasonable and necessary period for the variation of retirement conditions is 18 months, so that lacking technical support, transitory norm VI becomes an unconstitutional norm for not complying with objective parameters for granting and restricting the retirement conditions of the plaintiffs and their represented persons. It states that there is a technical absence of a transitory norm that introduces the new retirement conditions approved by Law No. 9544, in an abrupt, non-progressive manner, and to the detriment of acquired rights and consolidated legal situations. It points out that there is an absence of technical studies that justify an 18-month period as a transitory norm, and the International Labor Organization has indicated the need to have adequate technical criteria to be able to make a variation in a pension regime. It indicates that this Transitory provision is violative of the human rights of those who already had a very near prospect of retirement, and therefore it requests that it be declared as such and that its grantors and the plaintiffs be granted the right to a dignified retirement. It indicates that Transitory VI also harms reasonableness and proportionality and needs to be adjusted in order to protect the fundamental rights of this judicial population, since the harm imposed on them, going from a few months to more than ten years in the majority of cases to acquire a retirement right, which besides, is now ruinous, despite having contributed for so many years to the Pension and Retirement Fund of the Judicial Branch, is too great. It requests that the rights to retirement, to work, to non-confiscation, and equality of its represented persons be safeguarded, that their fundamental rights be restored, and that the unconstitutionality of said norm be declared, for not having the technical support that this type of legislative restrictions requires. It points out that Article 26 of the American Convention on Human Rights establishes that the States Parties undertake to adopt measures, both internally and through international cooperation, especially economic and technical, to progressively achieve the full effectiveness of the rights that derive from the economic, social, and educational, scientific, and cultural norms contained in the Charter of the Organization of American States, reformed by the Protocol of Buenos Aires, to the extent of available resources, by legislative means or other appropriate means. It argues that this norm finds a similar one in the Protocol to the Convention on Economic, Social Rights of San Salvador, which in Article 1 provides that the States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both internally and through cooperation among States, especially economic and technical, to the maximum of available resources, and taking into account their degree of development, in order to progressively achieve, and in accordance with internal legislation, the full effectiveness of the rights recognized in that Protocol. It also indicates that in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Executive Decree No. 38513-RE (Decreto Ejecutivo N° 38513-RE), in its Article 2, it points out that each of the States Parties undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized therein by all appropriate means, including particularly the adoption of legislative measures, as well as they undertake to guarantee the exercise of the rights enunciated therein, without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It recalls that, among social rights is the right to work—protected by the Political Constitution in Article 56—and with it to a retirement, which alludes to a fundamental right that belongs to the worker for the simple fact of being a person and having contributed to the legally corresponding regime for a period of time. It points out that the right to retirement—survival protection—corresponds to a social security right that has been ratified, not only by different international instruments but also by national legal norms, and implies that, having certain conditions, these cannot be varied to the detriment of the human rights of those who hold the right or the consolidated legal situation.

It states that the Costa Rican State has the obligation to respect the rights and consolidated legal situations of judicial personnel, especially its represented parties, to pursue the progressive development of human rights, and this is not evident in Law 9544, which is completely contrary to those constitutional principles. It considers that Transitorio VI is not a progressive human rights norm because it did not respect the enormous number of years that its represented parties have belonged to and contributed to the system, a benefit that should have been safeguarded with a reasonable, fair transitory provision supported by technical and objective criteria. It recalls that the Chamber is called upon to guard and protect fundamental rights, since without judicial protection or procedural guarantees there are no fundamental rights, and therefore requests that it proceed in that manner with respect to its represented parties, granting the filed actions and declaring the unconstitutionality of Law No. 9544, especially Transitorio VI. It adds that the Chamber, in other matters, has ordered the Costa Rican State to apply and observe the principle of progressivity of human rights, and therefore requests that this be applied to those who come before this Court so that they may be restored to the full enjoyment of their fundamental rights to work, to a pension (jubilación), to a dignified life, and to non-confiscation, and that Transitorio VI not be applied because it is unconstitutional. It reiterates the request that the consolidated actions be granted, that it be declared that the approval procedure for Law 9544 has nullity defects that render the regulation unconstitutional, and also that the unconstitutionality of its Transitorio VI be declared because it is repressive and lacks technical support to justify it.

162.- In a resolution issued at 9:31 a.m. on May 10, 2019, the following was resolved: “Having reviewed the filings submitted to the Secretariat of this Chamber between April 1 and April 12, 2019, by which CRISIAM DIONISIA WONG VEGA, identity card number 0107420019, ENRIQUETA ROJAS AGUILAR, identity card number 0502230794, LIGIA VANESSA VÍQUEZ GÓMEZ, identity card number 0108240057, ZULAY MARJORIE CAMPOS HERNÁNDEZ, identity card number 0108360391, LUIS ROBERTO MADRIGAL ZAMORA, identity card number 0107230460 in his capacity as SECRETARY GENERAL OF THE PUBLIC DEFENSE UNION (SINDICATO DE LA DEFENSA PÚBLICA) and KAROL MARÍA MONGE MOLINA, identity card number 0110710254 in her capacity as special judicial representative of ADALGISA GUILLEN FLORES, holder of identity card number 5-0210-0201, ADOLFO SOTO MUÑOZ, holder of identity card number 3-0300-0050, ADRIÁN ARROYO ACOSTA, holder of identity card number 1-0903-0887, ADRIÁN COTO PEREIRA, holder of identity card number 3-0307-0351, ADRIÁN RODOLFO BARQUERO MONGE, holder of identity card number 3-0339-0441, ADRIANA ÁLVAREZ BRICEÑO, holder of identity card number 1-0639-0343, ADRIANA SOTO GONZÁLEZ, holder of identity card number 1-0844-0124, ADRIANA STELLER HERNÁNDEZ, holder of identity card number 1-0803-0253, ALBA BARRIOS SALDAÑA, holder of identity card number 7-0103-0498, ALBERTH SOLANO ABARCA, holder of identity card number 1-0762-0577, ALBERTO MORA MORA, holder of identity card number 1-1023-0353, ALCIONI VÁSQUEZ RETANA, holder of identity card number 1-0643-0891, ALEJANDRA PÉREZ CORDERO, holder of identity card number 1-1030-0994, ALEJANDRO ALCIONE CASTRO LAO, holder of identity card number 1-0836-0068, ALEJANDRO FONSECA ARGUEDAS, holder of identity card number 1-0771-0399, ALEJANDRO SOLANO ROJAS, holder of identity card number 1-0519-0729, ALEXANDER MIGUEL FONSECA PRADO, identity card number 1-0779-0738, ALEXANDER PICADO GAMBOA, holder of identity card number 1-0935-0908, ALEXANDER TENORIO CAMPOS, holder of identity card number 5-0202-0075, ALEXANDER VIACHICA ESPINOZA, holder of identity card number 1-0777-0115, ALEXANDRA MADRÍZ SEQUEIRA, holder of identity card number 1-0870-0450, ALEXANDRA MORA STELLER, holder of identity card number 2-0485-0404, ALEXANDRA VILLEGAS VELÁZQUEZ, holder of identity card number 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, holder of identity card number 7-0103-0253, ALEYDA MOJICA MARÍN, holder of identity card number 6-0229-0409, ALFREDO SALAZAR VENEGAS, holder of identity card number 1-0867-0065, ALICIA MELÉNDEZ LEIVA, holder of identity card number 5-0238-0070, ALLAN CRUZ VILLALOBOS, holder of identity card number 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, holder of identity card number 2-0443-0555, ALMA CUNNINGHAM ARANA, holder of identity card number 7-0066-0882, ALONSO ROMERO FALLAS, holder of identity card number 1-0860-0327, ÁLVARO ÁLVAREZ GUTIÉRREZ, holder of identity card number 5-0234-0995, ÁLVARO ENRIQUE GONZÁLEZ QUIRÓS, holder of identity card number 3-0334-0081, ÁLVARO JUSTO QUIRÓS SÁNCHEZ, holder of identity card number 1-0669-0209, ÁLVARO ORTUÑO MÉNDEZ, holder of identity card number 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, holder of identity card number 1-0828-0553, ANA CRISTINA LIZANO RODRÍGUEZ, holder of identity card number 1-0693-0522, ANA ISABEL MOYA CHACÓN, holder of identity card number 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, holder of identity card number 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, holder of identity card number 5-0248-0978, ANA PATRICIA ROBLES MARTÍNEZ, holder of identity card number 7-0102-0421, ANA RUTH ORTEGA CHAVARRÍA, holder of identity card number 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, holder of identity card number 1-0745-0116, ANA SONIA FUENTES GÓMEZ, holder of identity card number 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, holder of identity card number 2-0496-0746, ANAIS CAROLINA BOLAÑOS ZELEDÓN, holder of identity card number 1-0902-0620, ANAYANCI RODRÍGUEZ QUESADA, holder of identity card number 1-0734-0966, ANDREA SOTO DÍAZ, holder of identity card number 4-0161-0797, ANDRÉS MÉNDEZ BONILLA, holder of identity card number 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, holder of identity card number 1-0779-0938, ÁNGELA ROBLES SIBAJA, holder of identity card number 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNÁNDEZ, holder of identity card number 7-0107-0369, ARMANDO AGÜERO ARAYA, holder of identity card number 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, holder of identity card number 3-0325-0085, ARMANDO EMILIO JIMÉNEZ VARGAS, holder of identity card number 6-0233-0378, ARSENIO MORA BARBOZA, holder of identity card number 1-0850-0664, ARTURO FAERRON MONTOYA, holder of identity card number 5-0247-0765, AURA YANES QUINTANA, holder of identity card number 6-0209-0198, AUREA BARBOZA CASTILLO, holder of identity card number 5-0233-0938, BERNY VALVERDE JIMÉNEZ, holder of identity card number 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, holder of identity card number 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, holder of identity card number 1-0747-0521, BONN1E PATRICIA TORRES ROSALES, holder of identity card number 1-0750-0985, BRENDA ALPÍZAR JARA, holder of identity card number 1-0752-0082, CARLOS ABRAHAM CAMPBELL, holder of identity card number 7-0098-0511, CARLOS AGUILAR ORTIZ, holder of identity card number 1-0706-0717, CARLOS ALBERTO CHACÓN CHINCHILLA, holder of identity card number 1-0865-0136, CARLOS ALBERTO QUESADA HERNÁNDEZ, holder of identity card number 7-0077-0276, CARLOS ARNOLDO BERMÚDEZ AGUILAR, holder of identity card number 1-0915-0817, CARLOS BERMÚDEZ CHAVES, holder of identity card number 1-0880-0378, CARLOS ENRIQUE TORRES ACUÑA, holder of identity card number 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, holder of identity card number 1-0748-0121, CARLOS FALLAS Solís, holder of identity card number 1-0851-0582, CARLOS GONZÁLEZ MARTÍNEZ, holder of identity card number 3-0279-0596, CARLOS HUMBERTO HERRERA SOLÍS, holder of identity card number 1-0837-0484, CARLOS LUIS CORRALES JIMÉNEZ, holder of identity card number 2-0428-0157, CARLOS LUIS FRUTOS VÁSQUEZ, holder of identity card number 6-0157-0030, CARLOS LUIS GARCÍA APARICIO, holder of identity card number 1-0860-0752, CARLOS LUIS GUTIÉRREZ BARQUERO, holder of identity card number 6-0164-0434, CARLOS LUÍS VÁSQUEZ MEDINA, holder of identity card number 7-0086-0146, CARLOS MONGE NAVARRO, holder of identity card number 6-0251-0166, CARLOS PORRAS MORERA, holder of identity card number 5-0247-0389, CARLOS VENEGAS AVILES, holder of identity card number 1-0899-0725, CARLOS ALBERTO PÁEZ RODRÍGUEZ, holder of identity card number 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, holder of identity card number 1-0903-553, CARMELINA TAYLOR TAYLOR, holder of identity card number 7-0068-0562, CAROLINA CHACÓN MEJÍA, holder of identity card number 1-0741-0425, CATALINA ESPINOZA SÁENZ, holder of identity card number 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, holder of identity card number 6-0198-0289, CINTHIA MAGALY VEGA CÉSPEDES, holder of identity card number 4-0161-0385, CHIREY TAPIA MARTINEZ, holder of identity card number 1-0912-0363, CRISTIAN CORRALES RODRÍGUEZ, holder of identity card number 2-0473-0323, CRISTIAN GÓMEZ SOLÍS, holder of identity card number 3-0333-0388, CRUZ PORRAS BOLAÑOS, holder of identity card number 5-0213-0606, DANIA ARIAS SANDOVAL, holder of identity card number 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, holder of identity card number 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, holder of identity card number 1-0820-0013, DÉBORA RIVERA ROMERO, holder of identity card number 1-0702-0210, DELIA BAYLEY BLAKE, holder of identity card number 7-0106-0462, DENIA ZÚÑIGA ROSALES, holder of identity card number 5-0255-0075, DENNIS MADRIGAL QUESADA, holder of identity card number 1-0772-0406, DERRIL VILLEGAS SALAZAR, holder of identity card number 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, holder of identity card number 1-0844-0663, DIDIER JOSÉ MONTEALEGRE BEJARANO, holder of identity card number 1-0998-0884, DIEGO RODRÍGUEZ ZUMBADO, holder of identity card number 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, holder of identity card number 2-0403-0367, DINORAH FLORES VILLALOBOS, holder of identity card number 1-0762-0614, DIXON LI MORALES, holder of identity card number 1-0839-0369, DONALDO BERMÚDEZ RODRÍGUEZ, holder of identity card number 6-0260-553, DONY DANIEL SOLANO ARAYA, 6-0270-0431, DORIS ROJAS GUZMÁN, holder of identity card number 1-0760-0176, DYALA LINKIMER VALVERDE, holder of identity card number 2-0394-0312, EDDIE JOSÉ DÍAZ SOLÓRZANO, holder of identity card number 5-0202-0075, EDDY JAVIER RODA ABARCA, holder of identity card number 1-0607-0953, EDGAR GERARDO MORA ROMERO, holder of identity card number 5-0294-0965, EDUARDO BRICEÑO CABALCETA, holder of identity card number 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, holder of identity card number 1-738-0392, EDUARDO FALLAS BRENES, holder of identity card number 1-0588-0355, EDUARDO GÓMEZ VARGAS, holder of identity card number 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, holder of identity card number 8-0066-0926, EDUARDO MOYA ROJAS holder of identity card number 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, holder of identity card number 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, holder of identity card number 2-0484-0865, EDWIN HERRERA CAMBRONERO, holder of identity card number 1-0578-0466, EDWIN MATA ELIZONDO, holder of identity card number 1-0801-0067, EIBOR PANIAGUA MARÍN, holder of identity card number 3-0323-0494, EIDY ARAYA DÍAZ, holder of identity card number 7-0080-0880, ELIAS APU VARGAS, holder of identity card number 7-0088-0345, ELISANDRO TREJOS CHÁVES, holder of identity card number 1-0871-0722, ELIZABETH BOLAÑOS MENA, holder of identity card number 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, holder of identity card number 2-0505-0891, ELMER ORTIZ OBANDO, holder of identity card number 2-0513-0201, ELPIDIO CALDERÓN CHAVES, holder of identity card number 6-0211-0169, ELVÍN VARGAS SALAZAR, holder of identity card number 6-0164-0923, EMILCE MILEIDY GARCÍA SOLANO, holder of identity card number 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, holder of identity card number 1-0905-0693 EMMA LÓPEZ RAMÍREZ, holder of identity card number 6-0300-0418, ERICK ANTONIO MORA LEÍVA, holder of identity card number 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, holder of identity card number 1-0990-0489, ERICK CASTRO ZAMORA, holder of identity card number 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, holder of identity card number 1-0617-0454, ERICK LEWIS HERNÁNDEZ, holder of identity card number 4-0157-0803, ERICK RODRÍGUEZ MORA, holder of identity card number 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, holder of identity card number 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, holder of identity card number 1-0921-0625, ERIKA LEIVA DÍAZ, holder of identity card number 1-0905-0024, ERIKA MORALES CUBILLO, holder of identity card number 1-0885-0266, ERIKA VILLALOBOS SOLANO, holder of identity card number 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, holder of identity card number 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, holder of identity card number 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, holder of identity card number 6-0237-0005, ESTHER JIMÉNEZ AVILÉS, holder of identity card number 1-0835-0109, EUGENIA ARIAS QUESADA, holder of identity card number 3-0287-0420, EUNICE OBANDO SOLANO, holder of identity card number 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, holder of identity card number 1-0377-0039, EVERALDO ALFARO FERLINI, holder of identity card number 1-0771-0854, EZEQUIEL ÁLVAREZ CABEZAS, holder of identity card number 1-1046-0548, FABIÁN GORDIANO MONTERO MONTERO, holder of identity card number 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, holder of identity card number 1-0822-0756, FIORELLA PÉREZ FONSECA, holder of identity card number 5-0300-0115, FLOR BRENES HERNÁNDEZ, holder of identity card number 1-0886-0825, FLOR MARÍA MURILLO VINDAS, holder of identity card number 2-0458-0802, FLORA MARÍA CORDERO ROJAS, holder of identity card number 6-0225-0890, FLORIBEL CAMPOS SOLANO, holder of identity card number 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, holder of identity card number 2-0497-0271, FLORIBETH PALACIOS ALVARADO, holder of identity card number 6-0221-0749, FLOR Y ROCÍO CAMPOS SANDOVAL, holder of identity card number 2-0414-0476, FRANCINI DELGADO LEÓN, holder of identity card number 4-0168-0486, FRANCISCO JOSÉ BONILLA GUZMÁN, holder of identity card number 1-0640-0491, FRANCISCO MURILLO ZÚÑIGA, holder of identity card number 1-0602-0162, FRANÇOISE RODRÍGUEZ CORONADO, holder of identity card number 1-0944-0235, FRANK GARCÍA MORAGA, holder of identity card number 5-0298-0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, holder of identity card number 1-0900-0131, FRANZ EDUARDO VEGA ZÚÑIGA, holder of identity card number 3-0292-0396, FRESSIA REVELES GÓMEZ, holder of identity card number 1-0922-0486, GABRIEL BARRANTES PALAFOX, holder of identity card number 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, holder of identity card number 1-0725-0918, GAUDY AGUILAR ALFARO, holder of identity card number 1-0935-0817, GERARDO ALVARADO CHAVES, holder of identity card number 2-0378-0401, GERARDO CERVANTES FONSECA, holder of identity card number 3-0278-0929, GERARDO SÁNCHEZ RIVERA, holder of identity card number 1-0741-0686, GERMAN ESQUIVEL CAMPOS, holder of identity card number 1-0965-0647, GIAN JAVIER MUIR YOWNG, holder of identity card number 3-0300-0955, GILBERTO MORA MOLINA, holder of identity card number 2-0534-0866, GINA RAMÓN FERNÁNDEZ, holder of identity card number 1-0791-0967, GINETHE RETANA UREÑA, holder of identity card number 1-0765-0153, GINNETH DURÁN CORRALES, holder of identity card number 1-0689-0187, GINNETTE AMADOR GODOY, holder of identity card number 8-0051-0937, GIOVANNY GONZÁLEZ HERNÁNDEZ, holder of identity card number 1-0956-0895, GISELLE GUTIÉRREZ SOTO, holder of identity card number 2-0408-0809, GISELLE ROJAS ROJAS, holder of identity card number 2-0507-0474, GLADYS NÜÑEZ RIVAS, holder of identity card number 5-0185-0742, GLORIA ESTELA ÁNGULO SMITH, holder of identity card number 1-0728-0619, GREIVIN HERNÁNDEZ CÓRDOBA, holder of identity card number 2-0445-0438, GUADALUPE VEGA SEQUEIRA, holder of identity card number 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, holder of identity card number 1-0760-0343, GUILLERMO ROSALES MORA, holder of identity card number 1-0731-0037, GUILLERMO VALVERDE MONGE, holder of identity card number 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, holder of identity card number 6-0222-0170, GUSTAVO RODRÍGUEZ TENCIO, holder of identity card number 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, holder of identity card number 7-0075-0104, HANNIA VANESSA RAMÍREZ PICADO, holder of identity card number 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, holder of identity card number 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, holder of identity card number 5-0242-0405, HAZEL ALFARO GONZÁLEZ, holder of identity card number 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, holder of identity card number 1-0869-0832, HÉCTOR SANTAMARÍA VÍQUEZ, holder of identity card number 1-0908-0937, HEIDY ARAYA PINEDA, holder of identity card number 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, holder of identity card number 1-0819-0354, HELLEN VANESSA ARIAS FATJÓ, holder of identity card number 1-0788-0682, HENRY CAMACHO ESQUIVEL, holder of identity card number 4-0156-0291, HENRY MOODIE FEDRICK, holder of identity card number 7-0112-0315, HENRY TIJERINO ESPINOZA, holder of identity card number 5-0250-0209, HERNÁN VÁSQUEZ CASTAÑEDA, holder of identity card number 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, holder of identity card number 1-0826-0702, IGNACIO GERARDO LÉPIZ SALAZAR, holder of identity card number 4-0164-0654, ILEANA MARÍA LEAL ZÚÑIGA, holder of identity card number 6-0196-0131, ILSE MARÍA GONZÁLEZ DOSMAN, holder of identity card number 6-0240-0588, INDIRA ALFARO CASTILLO, holder of identity card number 2-0462-0902, INEL GIBBONS GÓMEZ, holder of identity card number 7-0109-0072, INGRID ÁNGULO SÁNCHEZ, holder of identity card number 5-0285-0560, INGRID ARAYA LEANDRO, holder of identity card number 1-0949-0945, INGRID SANÓU KARLSON, holder of identity card number 1-0593-0629, INOCENCIO GÓMEZ OBANDO, holder of identity card number 5-0186-0272, IRENE BLANCO MORALES, holder of identity card number 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, holder of identity card number 1-0635-0364, IVÁN GRANADOS BARQUERO, holder of identity card number 3-0325-0944, IVÁN PÉREZ PÉREZ, holder of identity card number 7-0087-0308, IVANNIA AGUILAR ARRIETA, holder of identity card number 1-0823-0346, IVANNIA MEDINA RAMÍREZ, holder of identity card number 1-0911-0387, IVANNIA PATRICIA MORALES LÓPEZ, holder of identity card number 1-0879-0108, IVANNIA VALERIO VILLALOBOS, holder of identity card number 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, holder of identity card number 1-0841-0091, IVETH LORENA DUARTE CERDAS, holder of identity card number 1-0877-0005, IVETH TORRES GONZÁLEZ, holder of identity card number 5-0235-0765, IVONNE VALVERDE SANABRIA, holder of identity card number 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, holder of identity card number 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, holder of identity card number 5-0308-0930, JAVIER ALFARO VALERIO, holder of identity card number 1-0660-0072, JAVIER FRANCISCO DELGADO CARAZO, holder of identity card number 5-0257-0789, JAVIER QUESADA QUESADA, holder of identity card number 1-0739-0219, JAVIER VINDAS ROCHA, holder of identity card number 1-0749-0307, JEANNETTE BARBOZA CASCANTE, holder of identity card number 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, holder of identity card number 1-0910-0476, JENNIFER STEPHENSON STERLING, holder of identity card number 7-0096-0630, JENNY ARCE CÓRDOBA, holder of identity card number 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, holder of identity card number 3-0313-0291, JENNY NÚÑEZ SALAZAR, holder of identity card number 6-0280-0719, JEREMY EDUARTE ALEMÁN, holder of identity card number 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, holder of identity card number 1-0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, holder of identity card number 1-0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, holder of identity card number 1-0881-0675, JHONNY ALFARO NAVARRETE, holder of identity card number 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, holder of identity card number 1-0787-0155, JOHANNA CHAVES LEÓN, holder of identity card number 1-0897-0130, JOHN PALADINO JIMÉNEZ, holder of identity card number 1-0941-0472, JOHNNY ÁLVAREZ SANDÍ, holder of identity card number 7-0078-0010, JONATHAN GAMBOA VALLADARES, holder of identity card number 2-0495-0512, JONATHAN GOÑI CHAVES, holder of identity card number 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, holder of identity card number 1-0973-0613, JORGE AGUILAR PÉREZ, holder of identity card number 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, holder of identity card number 1-0753-0847, JORGE ANTONIO CHACÓN COREA, holder of identity card number 1-0762-0236, JORGE CONTRERAS LACAYO, holder of identity card number 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, holder of identity card number 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, holder of identity card number 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, holder of identity card number 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, holder of identity card number 1-0612-0417, JORGE MARIO ROJAS MEJIAS, holder of identity card number 2-0500-0326, JORGE ROBLES ZÚÑIGA, holder of identity card number 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, holder of identity card number 1-0778-0897, JOSÉ EFRAÍN SANDERS QUESADA, holder of identity card number 1-0740-0038, JOSÉ ALBERTO RIVERA OLIVARES, holder of identity card number 1-0793-0076, JOSÉ ALEXANDER MORA GARCÍA, holder of identity card number 1-0706-0010, JOSÉ ALONSO RODRÍGUEZ VARGAS, holder of identity card number 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACÓN, holder of identity card number 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, holder of identity card number 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, holder of identity card number 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, holder of identity card number 1-0670-0201, JOSÉ GILBERTO ROJAS CHACÓN, holder of identity card number 1-0684-0910, JOSÉ LUIS BADILLA CUADRA, holder of identity card number 2-0449-0004, JOSÉ LUIS BENAVIDES UMAÑA, holder of identity card number 1-0714-0628, JOSÉ LUIS PERAZA ÁLVAREZ, holder of identity card number 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, holder of identity card number 1-0873-0458, JOSÉ MAURICIO FONSECA UMAÑA, holder of identity card number 1-0921-028, JOSÉ RAFAEL ROJAS LÓPEZ, holder of identity card number 1-0772-0917, JOSÉ RAMÓN HIDALGO HIDALGO, holder of identity card number 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMÍREZ, holder of identity card number 3-320-980, JOSÉ RUBÉN DIMAS PORTILLO, holder of identity card number 7-0070-0864, JUAN CARLOS ARIAS AGUILAR, holder of identity card number 1-0408-0344, JUAN CARLOS CAMPOS MARÍN, holder of identity card number 1-0838-0041, JUAN CARLOS LEAL VEGA, holder of identity card number 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, holder of identity card number 2-0448-0967, JUAN CARLOS QUESADA QUESADA, holder of identity card number 1-0796-0215, JUAN CARLOS SALAS VARELA, holder of identity card number 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, holder of identity card number 1-0922-0112, JUAN JOSÉ ACUÑA PASTRANA, holder of identity card number 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, holder of identity card number 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, holder of identity card number 2-0486-0526, JUAN LUIS SÁNCHEZ ALVARADO, holder of identity card number 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, holder of identity card number 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, holder of identity card number 5-0215-0175, KAREN JACKELYN THOMAS SMITH, holder of identity card number 7-0096-0607, KARIN AGUILAR MOLINARI, holder of identity card number 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, holder of identity card number 1-0910-0203, KARLA SANCHO VARGAS, holder of identity card number 1-0779-0289, KAROLINA RIVERA ESPINOZA, holder of identity card number 2-0514-0769, KATTIA CAMPOS ZÚÑIGA, holder of identity card number 1-0707-0725, KATTIA CORDERO SOLANO, holder of identity card number 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, holder of identity card number 1-0984-0078, KATTIA MARÍA VARGAS PÉREZ, holder of identity card number 1-0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, holder of identity card number 1-0646-0777, KATTIA MORALES NAVARRO, holder of identity card number 1-0801-0141, KATTIA SABORÍO CHAVERRI, holder of identity card number 2-0453-0781, KATTIA CECILIA MARÍN MIRANDA, holder of identity card number 1-0784-0554, KATTIA VARGAS SALAS, holder of identity card number 1-0793-0718, KATTYA MERCEDES MONGE PACHECO, holder of identity card number 3-0337-0036, KRISIA FUMERO ARAYA, holder of identity card number 1-0324-0912, LAURA PATRICIA CHACÓN MORA, holder of identity card number 1-0708-0472, LEDA GINETTE SOLANO BARRA, holder of identity card number 6-0166-0755, LEONARDO BRENES GÓMEZ, holder of identity card number 1-0921-0927, LIDIA ISABEL VÁSQUEZ VALLEJOS, holder of identity card number 5-0265-0923, LIGIA CASTILLO CASTILLO, holder of identity card number 1-0344-0861, LILLIAM MARÍA GARITA SHARPE, holder of identity card number 7-0074-0805, LILLIANA ROJAS MORA, holder of identity card number 7-0111-0674, LILLIANA SABORÍO SABORÍO, holder of identity card number 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, holder of identity card number 2-0497-0272, LIZETH BARAHONA CASTILLO, holder of identity card number 7-0097-0842, LIZETH ROGERS ROGERS, holder of identity card number 7-0101-0960, LIZETTE BRENES ARCE, holder of identity card number 1-0715-0167, LIZZETH CRUZ TORRES, holder of identity card number 1-0615-0237, LORELEY CERDAS ÁVILA, holder of identity card number 1-0723-0311, LORENA RODRÍGUEZ SALAS, holder of identity card number 1-0744-0409, LOURDES ANGULO JIMÉNEZ, holder of identity card number 5-0257-0944, LUCRECIA ROJAS ROJAS, holder of identity card number 3-0272-0321, LUIS ÁLVAREZ VINDAS, holder of identity card number 2-0417-0295, LUIS ÁNGEL MATAMOROS ARIAS, holder of identity card number 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, holder of identity card number 1-0793-0256, LUÍS DIEGO CHAVARRÍA GARCÍA, holder of identity card number 1-0948-0118, LUIS DIEGO ZARATE MORALES, holder of identity card number 1-0993-0395, LUIS ENRIQUE ARROYO ACUÑA, holder of identity card number 1-0626-0336, LUIS ENRIQUE LEÓN RODRÍGUEZ, holder of identity card number 5-0313-0263, LUIS FALLAS PIVA, holder of identity card number 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, holder of identity card number 1-0884-0317, LUIS FERNANDO RODRÍGUEZ ARTAVIA, holder of identity card number 2-0467-0324, LUIS FERNANDO SOLÍS VILLEGAS, holder of identity card number 1-0576-0916, LUIS FERNANDO SUÁREZ JIMÉNEZ, holder of identity card number 1-0738-0178, LUÍS GERARDO MARTÍNEZ GARCÍA, holder of identity card number 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, holder of identity card number 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, holder of identity card number 1-0784-0409, LUIS GUILLERMO COTO QUESADA, holder of identity card number 3-0242-0147, LUÍS GUILLERMO VÁSQUEZ UREÑA, holder of identity card number 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, holder of identity card number 5-0240-0795, LUÍS MANUEL RAMÍREZ SOLÍS, holder of identity card number 2-0435-0895, LUIS MATAMOROS CARVAJAL, holder of identity card number 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, holder of identity card number 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, holder of identity card number 1-0802-0480, LUIS RODRIGO GUTIÉRREZ ARGUEDAS, holder of identity card number 1-0940-0199, LUIS RODRÍGUEZ CRUZ, holder of identity card number 7-0090-0234, LUIS VÁSQUEZ VALLEJOS, holder of identity card number 5-0247-0313, MAGALIE VARGAS JOHNSON, holder of identity card number 7-0090-0188, MALCO MONTOYA RAMÍREZ, holder of identity card number 5-0262-0199, MANFRED QUESADA SÁNCHEZ, holder of identity card number 6-0268-0546, MANUEL ALEJANDRO TORRES CASTRO, holder of identity card number 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, holder of identity card number 1-0708-0291, MANUEL ERNESTO DURÁN CASTRO, holder of identity card number 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, holder of identity card number 6-0231-0761, MANUEL OREAMUNO ZEPEDA, holder of identity card number 1-0859-0237, MANRIQUE MORALES MONTIEL, holder of identity card number 6-0271-0224, MARCELA ZUÑIGA JIMÉNEZ, holder of identity card number 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, holder of identity card number 1-0518-0695, MARCO ANTONIO CARRIÓN HERNÁNDEZ, holder of identity card number 1-0817-0932, MARCO ANTONIO HERRERA CHARRAUN, holder of identity card number 1-0870-0028, MARCO BADILLA BERMÚDEZ, holder of identity card number 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, holder of identity card number 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, holder of identity card number 1-0801-0273, MARCO VINICIO PORRAS MORALES, holder of identity card number 2-0429-0412, MARCO VINICIO RODRÍGUEZ ARAGÓN, holder of identity card number 2-0485-0423, MARCONY ARBUROLA VALVERDE, holder of identity card number 5-0246-0169, MARGARITA CERDAS VEGA, holder of identity card number 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELÁSQUEZ, holder of identity card number 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, holder of identity card number 1-0968-0625, MARÍA AUXILIADORA SOTO RIVERA, holder of identity card number 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, holder of identity card number 1-0539-0560, MARÍA DE LA CRUZ ARROYO BRAVO, holder of identity card number 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRÍGUEZ, holder of identity card number 1-0700-0492, MARÍA DE LOS ÁNGELES CHAVES VARGAS, holder of identity card number 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, holder of identity card number 5-0248-0031, MARÍA DEL CARMEN VÁSQUEZ VALLEJOS, holder of identity card number 5-0233-0377, MARÍA ELENA MOLINA SABORÍO, holder of identity card number 6-0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, holder of identity card number 1-0612-0629, MARÍA ISABEL VILL EGAS NÚÑEZ, holder of identity card 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, holder of identity card 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, holder of identity card 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, holder of identity card 3-0274-0283, MARÍA MARGOTH CASTRO SALAZAR, holder of identity card 2-0454-0319, MARÍA MARITZA PIZARRO COREA, holder of identity card 5-02825-0080, MARÍA TERESA BENAVIDES ARGUELLO, holder of identity card 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, holder of identity card 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, holder of identity card 1-0820-0799, MARIANO RODRÍGUEZ FLORES, holder of identity card 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, holder of identity card 7-0120-0576, MARIO ANGULO SALAZAR, holder of identity card 1-1014-0171, MARIO MIRANDA DE LA O, holder of identity card 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, holder of identity card 5-0241-0198, MARITZA VALVERDE CORDERO, holder of identity card 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, holder of identity card 1-0604-0812, MARJORIE SANABRIA ROJAS, holder of identity card 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, holder of identity card 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, holder of identity card 1-0607-0484, MARLENY RAMÍREZ GAMBOA, holder of identity card 4-0150-0093, MARLON ARIAS QUIRÓS, holder of identity card 1-0120-0929, MARLYN CASTRO ALVARADO, holder of identity card 9-0076-0447, MARLYN ELENA QUESADA QUESADA, holder of identity card 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, holder of identity card 1-0692-0673, MARTÍN HERNÁNDEZ SERRANO, holder of identity card 1-0726-0721, MARVIN ÁNGULO DÍAZ, holder of identity card 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, holder of identity card 3-0258-0595, MAUREEN BOLAÑOS ROJAS, holder of identity card 1-0784-0631, MAUREEN SILES MATA, holder of identity card 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, holder of identity card 1-1003-0126, MAUREEN IONG UREÑA, holder of identity card 1-0815-0990, MAUREN VENEGAS MÉNDEZ, holder of identity card 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, holder of identity card 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, holder of identity card 1-0783-0049, MAURICIO RETANA GONZÁLEZ, holder of identity card 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, holder of identity card 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, holder of identity card 7-0087-0424, MAYRA GISELLA GONZÁLEZ, SÁNCHEZ, holder of identity card 1-0567-0766, MELANIA GÓMEZ ACUÑA, holder of identity card 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, holder of identity card 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, holder of identity card 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, holder of identity card 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, holder of identity card 7-0072-0678, MIGUEL OVARES CHAVARRÍA, holder of identity card 1-1006-0605, MINOR ANCHÍA VARGAS, holder of identity card 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, holder of identity card 6-0217-0066, MINOR MONGE CAMACHO, holder of identity card 1-0676-0442, MINOR RIVAS TORRENTES, holder of identity card 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, holder of identity card 3-0316-0212, MIXCY CHAVES MENDOZA, holder of identity card 5-0309-0547, MOISÉS ALVARADO CHACÓN, holder of identity card 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, holder of identity card 5-0247-0582, NATACHA PIZARRO SOTO, holder of identity card 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, holder of identity card 2-0443-0931, NELSON PÉREZ GUADAMUZ, holder of identity card, 1-0901-0416, NIDIA CASTRO CONEJO, holder of identity card 1-0776-0726, NILLS ROJAS JARA, holder of identity card 7-0102-0481, NUBIA AGUILAR CAMACHO, holder of identity card 1-0582-0179, NURIA QUESADA ZAMORA, holder of identity card 1-0619-0414, OLDEMAR CERDAS JUÁREZ, holder of identity card 5-0252-0491, OLGA MURILLO ESPINOZA, holder of identity card 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, holder of identity card 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, holder of identity card 2-0459-0740, OMAR BRENES CAMPOS, holder of identity card 1-0889-0754, ORLANDO CASTRILLO VARGAS, holder of identity card 1-0730-0335, OSBALDO ROSALES CHACÓN, holder of identity card 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, holder of identity card 4-0154-0227, OSVALDO LÓPEZ MORA, holder of identity card 1-0926-0995, OSVALDO RODRÍGUEZ FLORES, holder of identity card 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, holder of identity card 3-0301-0666, PABLO MACEO SOTO, holder of identity card 7-0112-0501, PABLO ROLDÁN UMAÑA, holder of identity card 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, holder of identity card 4-0161-0248, PATRICIA FALLAS MELÉNDEZ, holder of identity card 1-0660-0570, PATRICIA RIVERA SANDOVAL, holder of identity card 1-0782-0780, PATRICIA WO CHINO MOK, holder of identity card 7-0094-0757, PAULO HUMBERTO MENA QUESADA, holder of identity card 3-0331-0109, PEDRO ARCE GONZÁLEZ, holder of identity card 2-0385-0931, PEDRO BONILLA PICADO, holder of identity card 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, holder of identity card 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, holder of identity card 2-0490-0234, RAFAEL DAVID VEGA SEGURA, holder of identity card 1-0791-0159, RAFAEL NAVARRETE BRENES, holder of identity card 7-0104-0669, RAFAEL UREÑA BARRIOS, holder of identity card 1-0915-0224, RAMÓN ANGULO ROLDÁN, holder of identity card 1-0554-0410, RANDALL RODRÍGUEZ ULATE, holder of identity card 1-0783-0793, RANDY MARTÍN TREJOS MORALES, holder of identity card 1-0758-0892, RAQUEL RAMÍREZ BONILLA, holder of identity card 1-0997-0349, RASHID BEIRUTE GRANADOS, holder of identity card 5-0243-0570, RAYVAN MC LEOD BÍGSBY, holder of identity card 7-0132-0768, REBECA GUARDIA MORALES, holder of identity card 1-0808-0973, REBECCA ARTAVIA BRUNO, holder of identity card 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, holder of identity card 1-0548-0407, RICARDO CALDERÓN VALVERDE, holder of identity card 9-0098-0557, RICARDO GARCÍA MOLINA, holder of identity card 4-0170-0018, RITA CASTRO ABARCA, holder of identity card 2-0456-0750, RITA MARÍA QUIRÓS OBANDO, holder of identity card 1-0758-0598, ROBERTO CARLOS PÉREZ VARGAS, holder of identity card 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, holder of identity card 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, holder of identity card 1-0813-0303, ROCÍO PICADO VARGAS, holder of identity card 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, holder of identity card, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, holder of identity card 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, holder of identity card 1-0706-0332, RODRIGO CASTRO SOLÍS, holder of identity card 7-0101-0028, RODRIGO CHAVES CALVO, holder of identity card 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, holder of identity card 1-0903-0505, ROELIS REYES PICHARDO, holder of identity card 5-0273-0355, ROGER JIMÉNEZ FAJARDO, holder of identity card 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, holder of identity card 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, holder of identity card 1-0538-0903, RONALD SOLÍS JIMÉNEZ, holder of identity card 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, holder of identity card 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, holder of identity card 4-0125-0931, ROSE MARY LAWRENCE MORA, holder of identity card 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, holder of identity card 1-0852-0854, ROSIBEL BRENES ALVARADO, holder of identity card 4-0162-0518, ROSIBEL BRENES REYES, holder of identity card 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, holder of identity card 1-0698-0291, ROXANA GÓMEZ BARQUERO, holder of identity card 9-0075-0148, ROXANA HIDALGO VEGA, holder of identity card 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, holder of identity card 1-0652-0137, ROXANA MESÉN FONSECA, holder of identity card 1-0850-0833, ROY FERNANDO VARGAS NARANJO, holder of identity card 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, holder of identity card 1-0971-0856, SABAS GARCÍA LEAL, holder of identity card 5-0220-0011, SANDRA PÉREZ OBANDO, holder of identity card 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, holder of identity card 5-0219-0232, SAUL RETANA LÓPEZ, holder of identity card 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, holder of identity card 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, holder of identity card 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, holder of identity card 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, holder of identity card 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, holder of identity card 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, holder of identity card 2-0497-0859, SHIRLEY VÁSQUEZ CASTAÑEDA, holder of identity card 6-0234-0401, SILVIA CASCANTE RUEDA, holder of identity card 6-0241-0939, SILVIA CHINCHILLA PORRAS, holder of identity card 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, holder of identity card 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, holder of identity card 1-0791-0964, SILVIA ESPINOZA ACEVEDO, holder of identity card 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, holder of identity card 1-0977-0164, SILVIA PALMA ELIZONDO, holder of identity card 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, holder of identity card 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, holder of identity card 1-0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, holder of identity card 7-0091-0008, SONIA ISABEL GAMBOA ROJAS holder of identity card 2-0346-0839, SONIA RAMÍREZ THORPE, holder of identity card 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, holder of identity card 5-0222-0182, STEVEN PICADO GAMBOA, holder of identity card 1-0982-0768, SUGEY FONSECA PORRAS, holder of identity card 1-1073-0434, SUGEY QUESADA VALERIN, holder of identity card 7-0116-0302, SUSANA ALFARO SOTO, holder of identity card 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, holder of identity card 1-0825-0973, TERESITA BOLAÑOS ROJAS, holder of identity card 1-0685-0508, TONY ACUÑA PANÍAGUA, holder of identity card 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, holder of identity card 5-0222-0486, VANESSA VILLALOBOS MONTERO, holder of identity card 2-0484-0081, VANLLY CANTILLO GAMBOA, holder of identity card 1-0874-0062, VERA VARGAS BARRANTES, holder of identity card 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, holder of identity card 1-0730-0506, VÍCTOR FERNÁNDEZ VARGAS, holder of identity card 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, holder of identity card 1-0703-0316, VICTORIA OVIEDO SOTO, holder of identity card 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, holder of identity card 1-0642-0719, WAIMAN HIN HERRERA, holder of identity card 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, holder of identity card 7-0082-0466, WALTER GONZÁLEZ FALLAS, holder of identity card 1-0818-0248, WALTER GUEVARA LARA, holder of identity card 6-0180-0728, WILBERT KIDD ALVARADO, holder of identity card 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, holder of identity card 1-0923-0060, WILLIAM CALDERÓN NAVARRO, holder of identity card 6-0212-0756, WILLIAM MATTHEWS SALAS, holder of identity card 7-0084-0745, WILLIAM MORA DURÁN, holder of identity card 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, holder of identity card 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, holder of identity card 5-0237-0488, XARY BRICEÑO ALVAREZ, holder of identity card 7-0085-0762, XINIA BARRIENTOS ARROYO, holder of identity card 1-0976-0204, XINIA MARÍA ZAMORA OVARES, holder of identity card 3-0294-0379, XINIA VEGA GUZMÁN, holder of identity card 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, holder of identity card 1-0870-0973, YARMILA ULATE YOUNG, holder of identity card 1-0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, holder of identity card 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, holder of identity card 1-0664-0089, YENSY CAMPOS BARBOZA, holder of identity card 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, holder of identity card 1-1404-0477, YESENIA PANIAGUA GÓMEZ, holder of identity card 1-0845-0494, YESENIA ZAMORA BADILLA, holder of identity card 1-0991-0793, YORLENDA SPENCE THOMAS, holder of identity card 7-0103-0835, YORLENY CHING CUBERO, holder of identity card 7-0119-0457, YORLENY FERRETO SOLANO, holder of identity card 4-0155-0255, YORLENY SALAZAR NARANJO, holder of identity card 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, holder of identity card 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, holder of identity card 5-0262-0980 and YURLY ARGUELLO ARAYA, holder of identity card 1-0870-0756, request that they be considered as coadjuvants (coadyuvantes) in this action; it is resolved: Article 83 of the Ley de Jurisdicción Constitucional states that within the fifteen days following the first publication of the notice referred to in paragraph 2 of Article 81, the parties appearing in matters pending as of the date the action was filed, or those with a legitimate interest, may appear within this action, in order to coadjuvate (coadyuvar) in the allegations that might justify its appropriateness or inappropriateness, or to expand, as the case may be, the grounds of unconstitutionality in relation to the matter that concerns them.

In the specific case, the petitioners appeared within the legal term and request to be considered as coadjuvants because they believe that, by reason of their status as judicial officials, they have a legitimate interest in bringing an action against the challenged law. They consider that the legal amendment made through Law No. 9544 is detrimental to the conditions for opting for a pension in the Judicial Branch. Consequently, and given that the first publication of the notice occurred on March 21, 2019, it is appropriate to accept them as coadjuvants in this matter. The interested parties are warned that—regarding the effects of the coadjuvancy—since the coadjuvant is not a principal party to the proceeding, they will not be directly harmed or benefited by the judgment; that is, the effectiveness of the judgment does not extend to the coadjuvant directly and immediately, nor does res judicata affect them, nor do the immediate effects of the execution of the judgment reach them, because through coadjuvancy, the jurisdictional authority cannot be compelled to issue a ruling in their favor, as they were not a principal party in the proceeding. What can affect them, however, not by virtue of their condition as coadjuvant but as anyone else, is the erga omnes effect of the ruling. A judgment in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior trial where this can be recognized. The hearings granted to the Office of the Attorney General of the Republic (Procuraduría General de la República), the President of the Board of Directors of the Legislative Assembly, and the President of the Supreme Court of Justice are deemed responded to, in the resolution issued at 1:05 p.m. on February 22, 2019." 163.- By resolution issued at 9:31 a.m. on May 10, 2019, the Presidency of the Constitutional Chamber assigned this action to Magistrate Hernández López, to whom it corresponds by assignment.

164.- In a brief filed on May 16, 2019, Karol Monge Molina appeared and stated that in the filing brief for the prior coadjuvancy, the following coadjuvants were included, but they were not incorporated into the resolution of 9:31 a.m. on May 10, 2019: CARLOS ALBERTO SOLANO PÉREZ, ID number 6-0211-0367; CARLOS CALDERÓN BARRIOS, ID number 3-0335-0644; CARLOS DARIO ÁLVAREZ ARRIETA, ID number 2-0463-0645; CARLOS QUIRÓS TENORIO, ID number 1-0895-0474; CESAR AUGUSTO BARRANTES ARRIETA, ID number 1-0934-0951; EIMY ESPINOZA ANCHÍA, ID number 6-0260-0919; ELMER HERNÁNDEZ CASTILLO, ID number 5-0247-0005; FREDDY CHAJUD TORRES, ID number 6-0164-0694; GERALD HUERTAS ORTEGA, ID number 1-0926-0977; GERARDO MONGE BLANCO, ID number 1-0720-0430; GREGORIO JOSÉ HERNÁNDEZ SANDÍ, ID number 1-1016-0149; HALLEN CORDOBA CHAVES, ID number 5-0271-0887; ILEANA RIVERA BLANDÓN, ID number 1-0822-0815; JAVIER ALVARADO SORO, ID number 2-0391-0190; JAVIER LEAL DINARTE, ID number 5-0268-0217; JORGE ANTONIO CORDERO CHACON, ID number 1-1019-0604; KAREN ALFARO VARGAS, ID number 1-0808-0716; KATIA MARCELA SABORIO SOTO, ID number 4-0137-0134; KATTIA VARGAS NAVARRO, ID number 1-0701-0539; KATTIA VARGAS VEGA, ID number 1-0810-0668; LUIS EDUARDO RODRÍGUEZ QUIRÓS, ID number 1-0605-0013; MABEL MURILLO ARCE, ID number 2-0443-0636; MARCELA MADRIZ ARCE, ID number 3-0271-0457; MARÍA VALENTINA CARMIOL YALICO, ID number 1-0744-0771; MARIO CAMACHO CAMPOS, ID number 1-0845-0638; MARLENE ACEVEDO MONTES, ID number 6-0152-0743; MARVIN DURAN PEREIRA; OMAR AGÜERO ROJAS, ID number 6-0152-0077; RALOXS ALVARADO CASCANTE, ID number 1-0873-0410; RODNEY GEORJANNY EARL BROWN, ID number 1-0930-0027; RONALD ABARCA SOLANO, ID number 3-0282-0138; SANDRA GÓMEZ AGUILAR, ID number 3-0262-0507; SANTIAGO ALFONSO ARAYA GUTIERREZ, ID number 1-0826-0278; SHIRLEY ROJAS BARRANTES, ID number 5-0240-0923; TERESA JIMÉNEZ ROJAS, ID number 6-0172-0033; VICTOR HUGO CHAVES CHAVARRÍA, ID number 2-0443-0030; and WILKIN PORRAS ALVAREZ, ID number 1-0772-0252. She requests that, due to this omission, the said order be supplemented and that the coadjuvancy be deemed filed in favor of these persons. She adds that, due to an involuntary error, the ID numbers of some of the coadjuvants were incorrectly stated and, therefore, she requests that the following be read correctly: AMANDO AGÜERO ARAYA (read AMANDO and not ARMANDO) 6-0212-0007; CARLOS PORRAS MORERA 1-0752-0459; DONALDO BERMÚDEZ RODRÍGUEZ 6-0250-0554; KRISIA FUMERO ARAYA 3-0324-0912; LIGIA CASTILLO CASTILLO 3-0344-0861; LUIS FERNANDO SUAREZ JIMENEZ 1-0738-0178; MARÍA ISABEL VILLEGAS NÚÑEZ 1-0665-0648; TANIA MARÍA PÉREZ BARRANTES 1-0825-0973; WALTER GONZALEZ FALLAS 1-0818-0243; JOSÉ RUBÉN DIMAS PORTILLO 8-0070-086. She requests that the following persons also be included as coadjuvants: AUGUSTO FEDERICO LEONHARDES ZAMORA, of legal age, married, judicial employee, resident of Desamparados, San José, ID number 6-0156-0657; ROGER GERARDO AGUILAR CEDEÑO, of legal age, married, Investigator of the Public Defense, resident of San José, Desamparados, ID number 1-0583-0279; ROCÍO RAMÍREZ LEITÓN, of legal age, widow, Social Worker, resident of San José, Moravia, ID number 1-0544-0163; XINIA FERNÁNDEZ VARGAS, of legal age, divorced, Social Worker, resident of Cartago, Central Canton, ID number 1-0593-0681; and EVELYN PIEDRA VILLAFUERTE, of legal age, divorced, Public Accountant, resident of San José, Pérez Zeledón, ID number 1-0931-0261. She indicates that she makes this request because, for health reasons, these persons were unable to sign the respective Special Power of Attorney in her favor (which is attached to this act), along with the entire group of coadjuvants, so that she could represent them in this matter.

165.- In a brief filed with the Secretariat of the Chamber on September 2, 2019, Wilkko Retana Álvarez, of legal age, judicial official, resident of Cartago, ID number 1-0737-0795, appeared to file a late coadjuvancy in this action of unconstitutionality against the conditions established in Law 9544 for opting for retirement. He requests that, despite the provisions of Article 83 of the Law of Constitutional Jurisdiction, if the Chamber deems it appropriate, the arguments and grounds he raises in this filing be considered so that there are more arguments to resolve in accordance with the Political Constitution. He indicates that according to the regulations that have governed the Retirement and Pension Regime of the Judicial Branch, from 1937 to 2018, one of the indispensable requirements for retiring was to have at least 30 years of service, but now, with the reform of Law 9544, substantial changes occurred that raised that requirement to 35 years of service and an age set at 65 years. He argues that during that time frame—1937 to 2018—several reforms occurred in the Retirement and Pension Regime of the Judicial Branch, the most burdensome being in Law 7302 of July 15, 1992, General Regime of Pensions Charged to the National Budget (Marco), in Transitory Provision III, regarding the percentage to be granted in the replacement rate, such as the possibility of deducting from the retirement age one year for every two years of service and contributions made to the Public Administration, and establishing that within a period of 5 years, counted from the entry into force of the law, persons with a right could retire under the original terms contemplated in Law No. 7302 Creation of the General Regime of Pensions Charged to the National Budget, Law of Other Special Regimes and Reform to Law No. 7092 of April 21, 1988, and its reforms, Income Tax Law of July 8, 1992. He adds that a second major reform occurred on January 1, 1994, with the comprehensive reform to the Organic Law of the Judicial Branch, which maintained the 30 years of service, increased the average salary to 24 salaries, and raised the age to sixty years. He indicates that subsequently, another reform occurred on June 26, 1996, in which 24 salaries were established for averaging, 62 years of age, and 30 years of service. He states that the last major reform occurred with Law 9544, challenged herein, on May 22, 2018, whereby the average salary corresponds to 82% of the last 20 years of salaries updated with the CPI, the age was increased to 65 years, and the service time was established at 35 years. He argues that, from a constitutional point of view, workers throughout their working life cannot and should not be subjected to major reforms that affect, in any way, their retirement or pension, as this lies in the legal stability protected by the Political Constitution. He acknowledges that, although changes in legislation can be made, the truth is that such changes cannot and should not be extreme or gross, since these are constitutional principles that allow, in a regular democratic regime, for the protection of the constitutional rights and principles of citizens and inhabitants. He points out that the Political Constitution itself permits and authorizes regulation in a manner consistent with those constitutional principles and rights, and even to tailor it for those persons who have worked a certain period of time, so that their constitutional rights are covered, not for all workers, but in relation to those determined under constitutional scrutiny, that is, those workers who have sufficient time to be protected. He indicates that to determine that time, different parameters can be established, such as those who have two-thirds of their working life with respect to the time necessary to opt for retirement; that is, if before the last reform—May 22, 2018—it was set at 30 years of service, two-thirds would be 20 years, or perhaps, why not set it at 23 years, 24 years, 25 years, 27 years of service, for example. He points out that, in this case under study, the Constitutional Chamber, in his view, could use the reforms that have occurred over recent years to resolve in accordance with the Political Constitution, and for example, take the date of the reform that occurred on July 15, 1992, under Law 7302; that is, to grant protection to workers who began working for the Judicial Branch before that date, because these workers have endured several imposing reforms in the regulation of the chapter on retirements and pensions of the Judicial Branch, but even so, that law even gave protection to workers who joined earlier, and who currently work in the Judicial Branch, for the purpose of benefiting from Transitory Provision III, which established what was known as the 2 for 1. He argues that if the Chamber can determine that this parameter falls within the constitutional framework, it would succeed in protecting and finding resonance in constitutional rights and principles, and thus tailor Law 9544 such that workers and judicial servants who began working before July 15, 1992, could retire under the protection of the provisions established in Title IX of Law No. 7333 of May 5, 1993. He states that these persons, as of May 22, 2018, would have 25 years, 10 months, and 7 days of working for the institution. He considers that this would be a reasonable service time, and the parameter of the date July 15, 1992, would have a just and reasonable motivation because judicial servants would not have to endure several extreme and gross reforms. He considers it plausible and consistent with constitutional law that, faced with the scenario presented in this action of unconstitutionality, in order to find support and protection in the Political Constitution, the effects of the reform contained in Law 9544 be tailored so that workers are not affected in their working life, specifically at the moment of opting for retirement or a pension, and that it be resolved to tailor Law 9544 in the sense that workers and judicial servants who began working before July 15, 1992, may retire under the protection of the provisions established in Title IX of Law No. 7333 of May 5, 1993. He indicates that, for reflection, he wishes to recount the cases that have arisen as a result of Law No. 9544, in which officials have had to retire for better service due to permanent disability, in order to show the reality of the application of the new rules: 1) according to minutes of the Superior Council, article XXIV, of session number 053-2019 of June 1, 2019, in which Expert 2 (Office of Social Work) was retired with a service time of 18 years and 11 months, with a last earned salary of ¢2,405,133.87, and her retirement amount was set at ¢915,931.72 colones gross, but with deductions resulted in ¢736,091.18 colones; 2) the second example is found in article XLV of Superior Council session number 051-2019 of June 4, 2019, in which a Judicial Communications Technician was retired with a service time of 18 years and 3 months, with a last earned salary of ¢966,599.25 colones, his retirement amount was set at ¢338,129.37 colones, and with deductions it came to ¢275,075.44 colones. He recalls that any worker may be subject to a retirement for better service due to permanent disability. He concludes by requesting that he be considered a coadjuvant, even if late, and above all, that his arguments be taken into account and evaluated.

166.- By brief received at the Secretariat of the Chamber at 11:50 a.m. on September 10, 2019, the plaintiffs Mario Mena Ayales, in his capacity as legal representative of the National Association of Judicial Employees (ANEJUD), and Juan Carlos Sebiani Serrano, in his capacity as legal representative of the National Association of Professionals of the Judicial Branch (ANPROJUD), filed a motion for Swift Dispatch (Pronto Despacho) requesting that the judgments relevant to these proceedings be issued, considering that the case files are ready for judgment. They formulate a respectful request to the Chamber that this action of unconstitutionality and those accumulated to it be resolved and the final judgment be issued.

167.- In a document filed with the Secretariat of the Chamber on October 4, 2019, Magistrate Hernández López raised a request for recusal. She states that, in this matter, the Chamber is being consulted on the constitutionality of the Law Reforming the Pensions and Retirements of the Judicial Branch, and within the proceeding, a ground for disqualification that she raised jointly with her fellow Magistrates was recently rejected. She indicates that, notwithstanding the foregoing, and in order to generate the greatest possible transparency in this case, she deems it her duty to submit to the Presidency of the Chamber the following situation, which she considers must be assessed prior to her intervention in this case. She indicates that it is widely known that around the processing of the reform project of the Judicial Branch pension regime, numerous voices were raised, even within the Legislative Assembly itself, expressing their concern and even displeasure regarding the attitude of the Court and the possibility that the Magistrates benefited by the current retirement and pension regime would be the ones who held in their hands the decision on the constitutional validity of that regime. She points out that, unlike her colleagues, she considered at the time that such expressions merited a response from her, so on October 24, 2016, she sent a letter to the Legislative Assembly and, particularly, to Franklin Corella of the Partido Acción Ciudadana, expressing her views on the matter raised. She states that therein, she clearly affirmed that her intention was to respect the will of the Legislative Assembly and that she had no doubt that the Assembly's actions on this issue would be respectful of the Constitution, adding that she would not object to whatever that body decided to impose through a law of the Republic. She indicates that, without a doubt, the foregoing can be interpreted by an impartial observer as a submission to what that body determines. She adds that, in reaction to that note, the press media reproduced her acceptance of the changes defined by the Legislative Assembly, as recorded in this excerpt from an article in the newspaper La Nación of October 31, 2016, which stated:

"(Magistrate) Hernández, who is a member of the Constitutional Court, asserts that she will not express her opinion nor will she resolve any consultation related to the reforms to the Judicial Branch pension regime, as she considers that she would be directly benefited or harmed. 'It is clear that if any case concerning Judicial Branch pensions reaches the Constitutional Chamber, I will file the respective recusal, hoping it is admitted. On the matter, I have full confidence that the Legislative Assembly will make informed decisions that are respectful of the Constitution and the law regarding the Judicial Branch pension regime,' expressed Magistrate Hernández in a note addressed to legislator Franklin Corella of the PAC. (The highlighting is not from the original). The President of the Constitutional Chamber, Ernesto Jinesta, also announced on Friday that he will abstain from judging any consultation regarding the cuts to luxury pensions promoted by the Legislative Assembly or the Government." She states that, furthermore, months later on February 5, 2017, the same newspaper records a Deputy's impression of her favorable position regarding what the Assembly decides on the issue of the Judicial Branch pension regime, and there it is made clear that public opinion recognizes that she has already taken a position on this issue:

"Although said action has no direct relation to the laws approved last year, a decision by the Constitutional Chamber would make clear the opinion of the magistrates regarding high pensions. Consulted on this, Ottón Solís, Deputy of the Partido Acción Ciudadana (PAC), highlighted that there are magistrates who can be considered 'bastions of ethics, who understand that they should not defend their own interests, such as Nancy Hernández.' He asserted that there are others who do go after their own, 'like the presiding magistrate of the Court,' who opposes the cuts." She states that, for any reasonable observer, said action can be interpreted as an advance legal opinion, in this case, of acceptance of the Law challenged in the present case file; in fact, a good number of people consider that she has pronounced in favor of the constitutional correctness of what the Legislative Assembly has done, and with this, the degree of her impartiality regarding this conflict is called into question. She indicates that it is precisely in this type of case that a sense of prudence and care regarding appearances that may be perceived by people must prevail. She adds that, in that same sense, the so-called "Bangalore Principles of Judicial Conduct" issued by the United Nations on judicial conduct, state in the comments related to the issue of the duty of impartiality, that the assessment of its existence must be made taking into account the perception of a reasonable observer; and similarly, other concepts reaffirm this idea and that expressed above on the issue of the importance of appearances, such as, for example, the notions of "sense of grievance or injustice," "reasonable perception," or "the offering of guarantees that dismiss any legitimate doubt regarding impartiality" that could erode confidence in justice. Now, she points out that the arguments of this filing and the pretensions set forth are not novel for the Presidency of this Chamber, much less inaccessible. She states that, during the processing of the Legislative Consultation of the law here challenged, followed under case file 17-017148-0007-CO, the recusal of Magistrate Jinesta Lobo was accepted, over the rest of the recusals of the permanent members of the Court at that time, as will be explained below, it being a necessary preamble to state that, originally, the full Chamber at that time filed its recusal, which was accepted by the Presidency; however, subsequent recusals by the Substitute Magistrates enabled by lottery forced the Presidency of the Constitutional Chamber to again enable the full Court that had already been separated, with only one exception: Magistrate Jinesta Lobo. She argues that, in the case of Magistrate Jinesta Lobo's recusal request, filed on November 21, 2017, he based his filing on the following:

"As is publicly and notoriously known, since, in the Full Court Session of June 20, 2016, the issue of reforming the Judicial Branch retirement and pension regime was addressed, and as I announced at that moment and through a public communiqué in subsequent days, from that moment on I would recuse myself from hearing and resolving any matter, even from regimes other than that of the Judicial Branch, where a reform thereof was discussed [...] None of the other permanent Magistrates is in my situation, such that my recusal carries greater weight, having previously been separated in 446 matters heard by the Constitutional Chamber." She argues that Magistrate Jinesta Lobo's words resonated with the Presidency of this Chamber, because indeed, through a resolution of the Presidency at 10:40 a.m. on February 27, 2018, it was decided to again enable Magistrates Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado, and Substitute Magistrate José Paulino Hernández Gutiérrez, keeping Magistrate Jinesta Lobo separated. She indicates that from the analysis of the resolution in question, it is clear that the additional reasons put forth by Magistrate Jinesta Lobo were what kept him disqualified from hearing, at that time, the Legislative Consultation, which today—now a Law of the Republic—is being challenged. She states that, for this reason, she requests that the present recusal be accepted in the same sense that Magistrate Jinesta Lobo's recusal was accepted, due to his generic statements on the issue of Judicial Branch pensions, inasmuch as she considers that hers, also generic, and of practically similar conditions to those set forth by Magistrate Jinesta Lobo—likewise published in media outlets—place her in the same circumstances as Magistrate Jinesta Lobo. She points out that, as Magistrate Jinesta Lobo considered at that time, she considers that in her specific case, weighty reasons can be extracted that are different from those held by the rest of the members of this Chamber, which warrant her separation from hearing the present case. She argues that, now, this type of question, where the recusal of a Magistrate is accepted during the processing of a proceeding as a result of public statements made by one of the members of this Court, is not novel for the Presidency of this Chamber. Thus, for example, during the processing of the Legislative Consultation processed under case file 18-016546-0007-CO, Magistrate Cruz Castro filed the following motion:

"By virtue of the fact that it has been public knowledge that the undersigned Magistrate has pronounced on issues related to the 'Law for the Strengthening of Public Finances' project, legislative file No. 20,580. All of which can be interpreted as my having already anticipated an opinion on some of the arguments that may be the subject of the optional consultation of constitutionality of this project, I file the recusal in this case file. [...]" She states that the foregoing recusal motion was accepted by the Presidency through a resolution at 8:50 a.m. on November 2, 2018. She points out that while it is true, the previous procedural acts were specific to the processing of a Legislative Consultation, the truth of the matter is that this action of unconstitutionality concerns facts and norms that, at the time, were consulted when they formed part of a bill, and that are now a Law of the Republic. In that sense, she argues that the scope of this filing is also not novel for the Presidency of this Chamber. She adds that, as previously indicated, Magistrate Cruz Castro filed a recusal motion during the processing of the Legislative Consultation of the "Law for the Strengthening of Public Finances" project, in accordance with the scope previously described, which was accepted at that time by the Presidency; now, Magistrate Cruz Castro himself again filed a recusal motion in the processing of several actions of unconstitutionality (19-0004931-0007-CO, 19-006416-0007-CO, 19-008080-0007-CO and 19-008087-0007-CO), filed against several norms of the "Law for the Strengthening of Public Finances," arguing identically the same arguments from the recusal filed in the Legislative Consultation (18-016546-0007-CO) as described in previous paragraphs, and that motion was accepted by the current Presidency, held by Magistrate Fernando Castillo Víquez, through a resolution at 10:41 a.m. on May 24, 2019. She argues that, on another note, during the processing of the Legislative Consultation of the project on reforms to the Judicial Branch retirement and pension regime (17-017148-0007-CO), she, in her capacity as Magistrate, filed a recusal motion based on facts similar to the present filing, and on that occasion, the Presidency, through a resolution at 10:05 a.m. on March 22, 2018, rejected the request to separate her from hearing the case in question, since, in accordance with the arguments set forth by Magistrate Fernando Cruz Castro:

"What Magistrate Hernández López expressed does not constitute an opinion in which she pronounces on the particular content of the consultation. She only expresses her confidence in the decisions adopted by the parliament on the issue of the Judicial Branch retirement regime. The Magistrate's statements do not contain any specific pronouncement on the issues that are the subject of this consultation. Under the particular conditions in which the permanent magistrates hear this matter, by legal imperative, Magistrate Hernández López's statements do not compromise her impartiality." She considers it incomprehensible that the arguments she has been making to be separated from hearing the aforementioned consultation, and now this action of unconstitutionality, are not of merit to grant her recusal, when the facts she presents here are of the same nature as those that gave rise to the separation of Magistrates Jinesta Lobo and Cruz Castro, in the sense that these gave their generic opinions (and these were reproduced in various media outlets) on the reform of the pension regime (in the case of the former) and retirements of the Judicial Branch, and the reform of the Law for the Strengthening of Public Finances (in relation to the latter), just as she did. She indicates that one cannot lose sight of the fact that the new Reform to the Civil Procedure Code included among the grounds for impediment (see Article 12, subparagraph 13 of the Civil Procedure Code) the fact that the judge "expressed, outside their functions, an opinion in favor of or against any of the parties," which is a condition not provided for in the Civil Procedure Code in force since 1989. She argues that in the case of the Legislative Consultation on the bill to reform the Judicial Branch retirement and pension regime (17-017148-0007-CO), she stated regarding the legislative work that, "On the matter, I have full confidence that the Legislative Assembly will make informed decisions that are respectful of the Constitution and the law regarding the Judicial Branch pension regime"; words that refer to or opine on one of the parties to the proceeding (no less than giving a vote of confidence), in that case, the legislators who ultimately consulted the bill before this Chamber. She asks it be noted, in this particular case, that her words expressed about the bill—while the Legislative Consultation on the reforms to the Judicial Branch retirement and pension regime was pending—were perceived by the parties as an opinion, to such an extent that even Deputy Ottón Solís Fallas expressed: "Consulted on this, Ottón Solís, Deputy of the Partido Acción Ciudadana (PAC), highlighted that there are magistrates who can be considered 'bastions of ethics, who understand that they should not defend their own interests, such as Nancy Hernández.' He asserted that there are others who do go after their own, 'like the presiding magistrate of the Court who opposes the cuts.'" Due to the foregoing, she considers that it cannot be validly asserted that the image of impartiality of the Court has not already been compromised, or that there are no substitute magistrates with a lower level of conflict who can guarantee the parties to the proceeding and the Court due impartiality. She points out that, in this specific case, the opinion of then-Deputy Ottón Solís and the publications in various media outlets previously described, in her view, constitute another ground for impediment, in accordance with the scope of the new Civil Procedure Code, described in subparagraph 16 of Article 12, which establishes the following:

"ARTICLE 12.- Grounds for impediment. The following are grounds for impediment:

16.

The existence of circumstances giving rise to justified doubts regarding her impartiality or objectivity." She adds that by reason of this last-cited reform of the Civil Procedure Code, and the analysis of the recusal petitions previously described that were accepted by the Presidency of this Chamber, and especially, in order to assure the plaintiff parties "the offering of guarantees that dispel any legitimate doubt regarding impartiality," capable of eroding confidence in the justice system, this recusal petition is filed. Finally, she states that she clearly understands the crossroads this issue represents for the Chamber and its legitimacy, and, precisely for that reason, she considers it of the utmost importance to state her reasons and inform the Presidency of the Chamber so that the appropriate decision may be made regarding the ground invoked.

168.- By resolution issued at 9:42 a.m. on October 10, 2019, the Presidency of the Constitutional Chamber, exercised by Magistrate Fernando Castillo Víquez, rejected the prior petition filed by Magistrate Hernández López and ordered that she remain authorized to hear this matter, and to continue processing the case file.

169.- On November 14, 2019, Mario Mena Ayales appeared in his capacity as legal representative of the National Association of Judicial Employees (Asociación Nacional de Empleados Judiciales, ANEJUD) to file a motion for recusal against Magistrate of the Constitutional Chamber Nancy Hernández López and states that, as shown in the record, by resolution issued at 9:07 a.m. on February 13, 2019, for the hearing of this unconstitutionality action, the Court was composed of Magistrates Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, Jorge Araya García and alternate magistrates José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez. He indicates that Magistrate Hernández López filed a new recusal petition and considers that, based on this Magistrate's words, it follows that she has compromised her role as adjudicator of the constitutional oversight body, considering that it is not suitable for her to issue a ruling via a judgment in a matter in which she has already, in advance, expressed her position openly and directly regarding the interests of the Legislative Branch, which creates a legal and moral impediment that consequently obligates her to withdraw from hearing and voting on the unconstitutionality of the Law. He adds that notwithstanding the above, the Presidency of the Constitutional Chamber rejected the new recusal petition filed by Magistrate Hernández López, and regarding this, he states that the immediate separation of Judge Nancy Hernández López from hearing the matters assigned to her with respect to case file 18-007819-0007-CO is legal, necessary, proportional, and correct because she advanced an opinion, not only before the members of the Constitutional Chamber in the cited resolutions, but through social networks and other media outlets. He considers that the magistrate gave her premature opinion regarding the substantive issue being discussed in this case file and this, without any doubt, violates the principles of objectivity, impartiality, and independence of the Judge and reveals a subjective and unilateral position in favor of Parliament. He concludes by requesting that, in accordance with the foregoing and in application of Article 8 of the American Convention on Human Rights and Article 8(3) of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), Magistrate Hernández López be deemed separated from hearing case file number 18-007819-0007-CO as the legal impediment for such task exists by virtue of her advancement of an opinion.

170.- In a resolution of the Presidency of the Constitutional Chamber issued at 2:52 p.m. on November 26, 2019, a hearing was granted to Magistrate Nancy Hernández regarding the recusal filed against her by the National Association of Judicial Employees.

171.- By means of a brief added to this case file on November 28, 2019, Magistrate Hernández López appears to state that the arguments in the recusal filed by the National Association of Judicial Employees are the same arguments that she timely presented in her own recusal petition. She warns that she has been the target of a campaign of harassment and discrediting by ANEJUD, which she considers to be in violation of her independence as a Judge of the Republic and which has gone from constant insults to the violation of her right to privacy. She indicates that they accuse her of being a "traitor," "Judas," "squire of the President of the Chamber," and other things that insinuate the existence of interests extraneous to adherence to legality, that is, illegitimate interests, that motivate her voting line, both in the case of the reforms to the pension regime of the Judicial Branch and the Law known as the Fiscal Plan. She argues that the insults and insinuations are minor compared to the violation of her personal privacy and, in that sense, she points out that while she was on sick leave due to surgery for a matter that was delicate and sensitive for her, those filing the recusal against her took advantage of that circumstance to exert pressure, trying to remove her from the process and claiming that the time she was going to be away from her duties constituted an improper delay in the case file; statements they made not only in writing via an express petition in the case file, but also in the meeting they requested with the President of the Chamber on the subject, according to the very minutes of the meeting that were drawn up and sent by electronic mail. She indicates that there is no record in the case file of that information about her health problems that caused her prolonged sick leave, such that this information could only be obtained in an unethical manner at the very least, since it was not formally obtained or requested. She considers it to be part of the stalking and harassment to which she has been subjected, and that information became known, either because they had access to her sick leave document, which is handled confidentially—only for administrative purposes—or because they are going around investigating her personal life, which is extraneous to the process and represents an undue intrusion into her private life. She adds that thanks to those statements, other parties with access to the case file know that she had a health problem, which is an aspect she considers sensitive. She points out that privacy regarding the fact of whether or not she is ill is a right she holds as a person, and the fact that this information became known outside the sphere of her privacy and strictly legal responsibilities in that regard, to be used against her—even during her convalescence—to pressure her in the case file and in a meeting held with the President of the Chamber, she considers an undue and unnecessary pressure that has affected her spirits and psychological state. She adds that, from her perspective, the sick leave of a public official is data that can be used for official purposes only and accessed by the persons responsible for its processing and verification. She indicates that, in her case, it was not a public and well-known fact, and there are many sick leaves of members of this Court that have never been the subject of this type of handling, even in cases where the associations represented here have intervened. She adds that in the petition where they request her removal from the process, they also submitted a request for prompt dispatch that she has already brought to the attention of the full Chamber. She indicates that she does not understand how an aspect that is beyond her control, such as an unexpected breakdown in health, is intended to be used against her to claim a delay in the case file. She considers that the constant insults on social networks and the events described as a whole demonstrate a hostility against her that constitutes a pattern of undue pressures or interference in the process. She argues that this recusal, after she had voluntarily filed her own recusal petition in a timely manner, is one more step within the described pattern. She points out that regardless of the positions she may hold as a judge or a person, whether shared or not, with the exception of this case, in the hundreds of thousands of cases she has had to hear in her career, respect had always been present; the norm is to attack the argument, not the person; by contrast, the strategy of those recusing her is entirely the opposite: to attack the person. She indicates that the case law of the Inter-American Court on Human Rights and the Bangalore Principles state that the judge has the right to work in an environment free from pressure. She adds that the basic principles relating to the independence of the judiciary have clearly stated that "2. Judges shall adjudicate the matters that come before them impartially, on the basis of facts and in accordance with the law, without any restriction and without influences, inducements, pressures, threats or undue interferences, whether direct or indirect, from any sector or for any reason" (the underlining is not in the original).

She argues that none of the cited rules have been respected in this process. She requests the President of the Chamber to reconsider the recusal petition originally filed and that she be removed from hearing this process.

172.- In a brief submitted to the Secretariat of the Chamber on December 5, 2019, Jorge Luis Morales García appears in his capacity as General Secretary and attorney-in-fact of the Judiciary Union (Sindicato de la Judicatura, SINDIJUD), to file a motion for recusal against Magistrates Nancy Hernández López, Paul Rueda Leal, and Fernando Castillo Víquez, all members of the Constitutional Chamber. He states that, firstly, it should be emphasized that regardless of their agreement or not with the Chamber's resolutions, they respect and defend the principle of judicial independence as a bulwark of democracy and an essential element for the Social and Democratic State governed by the Rule of Law. He states that for this reason they do not share the position taken by ANEJUD in this process, as regards the attack on constitutional judges in a personal manner and against the principle of judicial independence, as Magistrate Nancy Hernández López has argued. He states that they totally and emphatically distance themselves from that position, which they consider places them, as intervenors in this process, in an uncomfortable position which obliges them to file the recusal, invoking what Magistrate Hernández López stated regarding the impairment of the principle of impartiality in its objective and subjective aspects. He indicates that the magistrate provided some publications, of which the first one seems particularly relevant to them, where it is clearly observed that the alluded references are directed not only at Magistrate Nancy, but equally at Magistrates Paul Rueda Leal and Fernando Castillo Víquez, since although their names are not expressly mentioned, the publication is delimited with visual content of three photographs, one of each of them, and with the express reference in the text of the publication that literally reads: "And this is the case of these 3 magistrates of the Constitutional Chamber …," that is, there is no doubt that it refers to those mentioned by name. He states that the principle of Judicial Independence and its complement of impartiality of the adjudicator are basic principles in the protection of the fundamental rights of the citizenry, essential for the functioning of the Rule of Law and for the democratic guarantee, to such an extent that they are generally recognized at the level of Human Rights regulations. He adds that the Universal Declaration of Human Rights recognizes as fundamental the principle that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him (Article 19 of the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations on December 10, 1948). He indicates that this citation is fundamental for the purposes of interest here, as it clearly shows that the intervention of Magistrate Nancy Hernández López, before a member of Congress, indeed establishes a condition of doubt or impairment to her impartiality, as she herself has repeatedly acknowledged during this process, since her statements, at the very least, would create in a reasonable observer an appearance of such a nature, ".. to achieve parliamentary approval or avoid parliamentary censure," but it also applies in this case where an organization could be undermining that independence and thus affecting impartiality through personal attacks directed at magistrates that could cast doubt on their objectivity when resolving this matter. He considers that, as Magistrate Nancy Hernández López states in her response, in her specific case reasons converge that justify her separation from the present process in light of subjective and objective considerations that call her impartiality into question and would affect the principle of judicial independence. He adds that Magistrate Nancy Hernández López has acknowledged being within the scenario described in the "Commentary on the Bangalore Principles of Judicial Conduct," which in its section 2.5.1, as relevant, literally states: "The judge actually has a predisposition or bias concerning a party …". He states that, as has been referenced, in a clearly justified manner, the cited Magistrate Hernández López sees in the conduct developed by one of the parties involved in this process a direct attack on her judicial independence. He argues that on this aspect, commentary 92 of the cited Bangalore Principles states: "Actual bias must be personal and directed against a party as an individual or as a representative of a group. For a judge to be disqualified on the ground of bias, there must be objective evidence that he cannot hear the case impartially: Would a reasonable observer, knowing all the circumstances, have doubts about the judge's impartiality?". He indicates that, in this case, given the direct confession of the person questioned, it is clearly demonstrated that the attitude of one of the parties involved in this process has so prejudiced the Magistrate, regarding the publications in which she is questioned as a direct attack on her judicial independence; given this acknowledgment, this point of accreditation requires no further proof; it is determinant, not only that in her case that "actual bias" referred to in the cited international instrument exists, but that, as will be considered below, this situation is also extendible, by way of the "reasonable apprehension of bias," to the other two Magistrates against whom, on this occasion, the recusal is filed. He adds that Commentary 81 of the Bangalore Principles of Judicial Conduct states in this regard:

"The commonly accepted criterion for disqualification is a reasonable apprehension of bias. Various formulae have been applied to determine whether bias may be apprehended. The formulae have ranged from 'a high probability' of bias to 'a real likelihood', 'a substantial possibility' and 'a reasonable suspicion' of bias. The apprehension of bias must be reasonable and be held by reasonable, fair-minded and informed persons who consider the matter and obtain the relevant information. The relevant test is the question: 'What conclusion would such a person reach, examining the matter realistically and practically, and having thought it through? Would they think that it is more probable than not that the judge, consciously or unconsciously, will not decide fairly?' (...) The hypothetical reasonable observer of the judge's conduct is posited to emphasize that the test is objective, is based on the need for public confidence in the judiciary, and is not based solely on the assessment by other judges of a colleague's capacity or performance." He states that in this specific case, it is clear that, given the notorious fact that one of the judges composing the Constitutional Court expressly refers to the existence of an "actual bias," due to the statements of one of the parties to the process in terms she qualifies as a direct attack on her independence as a judge, a "reasonable observer" —how would they assess the situation of the other two Magistrates who are in an identical position regarding that attack, since it was jointly directed at the three judges? Does this situation affect public confidence? He says that in support of this aspect, it must be stated that his represented party, as a party to this process, does not have real confidence that Magistrates Paul Rueda Leal and Fernando Castillo Víquez can disregard that type of statement and keep their judgment impartial, just as Magistrate Hernández López has also assessed it and has expressly acknowledged it; indeed, this is an objective element that demonstrates the capacity that ANEJUD's conduct could have to affect the situation of impartiality of Judges Rueda Leal and Castillo Víquez. He states that, whatever option is taken in this case, indisputably from the perspective of a "reasonable observer," in the case of Magistrates Paul Rueda Leal and Fernando Castillo Víquez there exists a "reasonable apprehension of bias" that warrants their corresponding recusal, under the terms established in Commentary 90 a) of the Bangalore Principles of Judicial Conduct. He notes that the citation made in the resolution of this Constitutional Chamber issued at 9:42 a.m. on October 10, 2019, of the "Commentary on the Bangalore Principles of Judicial Conduct," commentary 100, is imprecise and, therefore, unacceptable. He indicates that what was stated in said resolution by the here-recused Magistrate Fernando Castillo Víquez, as President of the Chamber upon rejecting the recusal petition of Magistrate Nancy Hernández López was:

"Regarding the Bangalore Principles of Judicial Conduct, cited by Magistrate Hernández López, commentary 100 specifies that 'Certain circumstances may make it necessary to set aside the principle [of impartiality] discussed above. [Especially] in courts of last resort that have few judges and important constitutional and appellate functions that cannot be delegated to other judges' (The highlighting is not in the original). The Costa Rican constitutional jurisdiction, due to the characteristics described in the preceding whereas clause, falls under this latter exceptional scenario provided for by the very principles." He asserts that the citation is not correct, that it makes an expansive and improper interpretation of the commentary; the original text with its context provides:

"Aspects that do not constitute 'economic interest' 99. Economic interest does not extend to shares or interests that a judge may have, for example, in mutual or common investment funds, deposits that a judge may keep in financial institutions, mutual savings associations or credit unions, or government bonds held by the judge, unless the legal proceeding could substantially affect the value of those shares or interests. Nor is disqualification appropriate if the judge is a mere customer carrying on ordinary business with a bank, insurance company, credit card company or other similar companies that are parties to a proceeding in which no special dispute or transaction affecting the judge is pending. The fact that an educational, charitable or civic organization in which the judge's spouse, relative or child serves as a director, officer, advisor or in another capacity holds financial interests does not mean, depending on the circumstances, that the judge has an economic interest in that organization. Similarly, in proceedings with very secondary and remote financial consequences at the time of judgment, it is to be expected that the corresponding test will generally not result in disqualification. However, in such cases it may be prudent for the judge to inform the parties of any of those circumstances and record the matter in open court so that the parties, and not just the lawyers, are informed. Sometimes lay clients are more suspicious and less trusting than the judge's professional colleagues. The above taking into account that disqualification of a judge will not be necessary if another court cannot be constituted to hear the case or when, due to urgent circumstances, the judge's non-participation could produce a serious denial of justice.

Commentary Doctrine of necessity 100. Certain extraordinary circumstances may make it necessary to set aside the principle discussed above. The doctrine of necessity allows a judge who would otherwise have to abstain or would be recused to hear and decide a case when, by not doing so, an injustice could result. This may happen when there is no other judge reasonably available who is not equally disqualified or if a postponement or unfinished trial would cause very serious problems or if the court could not be constituted to hear the corresponding matter and decide it if the judge in question did not participate. Certainly, such cases will be of rare and special occurrence. Nonetheless, they may arise from time to time in courts of last resort that have few judges and important constitutional and appellate functions that cannot be delegated to other judges." He indicates that, as can be seen, there are two things to note about the citation made in the commentary resolution: first, the clear reference that these are "extraordinary circumstances" is omitted; additionally, the phrase "the principle discussed above" is substituted with the "principle of impartiality." He indicates that this practically excepts constitutional jurisdiction from respecting the human right of being judged by an impartial judge. He points out that this interpretation, at the outset, is indeed very difficult to accept, even incoherent with the normal functioning of the Constitutional Chamber, since, precisely, for hearing this action, the definitive separation of Magistrate Cruz Castro is acknowledged, as was that of Jinesta Lobo in his day. That is, he indicates that it is left to whim whether or not the protection of the principle of impartiality is given content, which truly contravenes the principle of prohibition of arbitrariness, also developed within the scope of the case law of the Constitutional Chamber. He states that from the perspective of his represented party, and that is why the broad citation of the commentary was made, what is stated in number 100 must be seen in relation to principle 2.5.3 "The judge, or some member of his family, has an economic interest in the outcome of the matter in dispute," precisely in order to establish the possibility that in such scenarios, "exceptionally," even when the judge has an economic interest, he could remain hearing the case to avoid serious harm to the parties. He argues that, indeed, this aspect is reinforced if one considers the format used by the document containing the "Commentary on the Bangalore Principles of Judicial Conduct," where the value is stated and then the principles are broken down, the value being "impartiality"; that is, what is noted as an exception is not the "value," but one of the principles derived from it. He states that along the same lines, it should be noted that the interpretation made by Magistrate Castillo Víquez would not withstand a confrontation with the condemnation suffered by Costa Rica in the case of Mauricio Herrera against the Costa Rican State, since on that occasion the Inter-American Court of Human Rights held:

"172. As has been proven, in the criminal proceeding against journalist Mauricio Herrera Ulloa, the cassation appeal was filed on two occasions (supra para. 95. r and 95. w). The Court observes that the four permanent judges and the alternate judge who composed the Third Chamber of the Supreme Court of Justice when deciding the cassation appeal filed by Mr. Félix Przedborski's lawyer against the acquittal on May 7, 1999, were the same ones who decided on January 24, 2001, the cassation appeals filed against the conviction by the defense lawyer of Mr. Mauricio Herrera Ulloa and special representative of the newspaper 'La Nación,' and by Messrs. Herrera Ulloa and Vargas Rohrmoser, respectively (supra para. 95. y).

173. When the Third Chamber of the Supreme Court of Justice resolved the first cassation appeal, it annulled the appealed judgment and ordered the case to be remitted to the competent court for new proceedings, based on the fact that, inter alia, 'the reasoning of the judgment is not presented as sufficient to rationally dismiss the existence of direct or eventual malice (regarding the crimes charged)' (supra para. 95. s).

174. The judges of the Third Chamber of the Supreme Court of Justice should have abstained from hearing the two cassation appeals filed against the conviction of November 12, 1999, because, this Court considers, that when resolving the cassation appeal against the acquittal of May 29, 1998, the same judges had analyzed part of the merits, and did not only rule on matters of form. 175. For the foregoing reasons, the Court concludes that the judges of the Third Chamber of the Supreme Court of Justice, when resolving the two cassation appeals filed against the conviction, did not fulfill the requirement of impartiality. Consequently, in the present case, the State violated Article 8.1 of the American Convention in relation to Article 1.1 thereof, to the detriment of Mr. Mauricio Herrera Ulloa." (Inter-American Court of Human Rights, Case of Herrera Ulloa v. Costa Rica, Judgment of July 2, 2004).

He indicates that it is clear that, in that case, it was not sufficient that the Third Cassation Chamber was the only Court that had that function and that the high International Tribunal determined that even in such scenarios, the fundamental Human Right of impartiality of the adjudicator must be guaranteed. Regarding this particular point, he points out that it is evident that the magistrates here recused already took part in a resolution of this Constitutional Chamber where they issued an opinion on the consultation on constitutionality that gave rise precisely to the text that is now being challenged through the unconstitutionality action filed by his represented party, this situation adding to what has already been stated in order to consider them duly recused and disqualified from issuing a substantive decision in this matter, in protection of the principle of impartiality, on which the Chamber has already pronounced itself. He argues that the position of Magistrate Hernández López is understood and clearly supported, who honestly and transparently has pointed out a circumstance that, indeed, affects other magistrates and his represented party as co-intervenors in this process that, due to circumstantial reasons, were called into this process by virtue of the joinder of processes. He states that the claims raised in this case, belonging to a collective he represents, now find themselves in the predicament of having to be decided by judges, as is the case of Magistrate Nancy, who have seen themselves attacked by one of the parties on an essential element of the adjudicator, such as the principle of Judicial Independence. He adds that, in this case, because it has been the subject of specific discussion within this process, it is impossible to ignore the case of Magistrates Paul Rueda Leal and Fernando Castillo Víquez, who have also been the target of those same attacks by one of the plaintiffs in the process and, definitively, such type of challenge means that their final decision may be conditioned by the implications that this attack generates. He considers that this establishes a cloud of doubt over the objectivity that said adjudicators could have when issuing the final decision, his represented party as a party in this process being unable to have confidence that their decisions will be made with disregard for that attack, thereby generically damaging the invoked value of impartiality.

It requests that the recusal motion filed against magistrates Hernández López, Rueda Leal, and Castillo Víquez be granted, considering that they are subject to a legal and conventional impediment to continue hearing this matter; consequently, that they be removed and the respective substitutes assigned by turn be appointed as soon as possible, given the urgency of resolving this unconstitutionality action, since the vacatio of the reform has already expired and, as of December 2019, concrete impacts would be occurring to the rights of persons who had expectations of retiring under the previous legislation, should the arguments of unconstitutionality outlined be upheld.

173.- In a resolution of the Presidency of the Constitutional Chamber at 8:44 a.m. on December 5, 2019, the recusal motion filed by the President of ANEJUD against Magistrate Hernández López was rejected, she was declared qualified, and it was ordered to continue processing the case file.

174.- By means of a resolution of the Acting Presidency of the Constitutional Chamber, exercised by Magistrate Luis Fernando Salazar Alvarado, at 8:50 a.m. on December 10, 2019, a hearing was granted to Magistrate Hernández López and to Magistrates Castillo Víquez and Rueda Leal so that they could address the recusal motion filed by the representative of SINDIJUD.

175.- In a document filed on December 11, 2019, Magistrate Nancy Hernández appears to state that she rejects the recusal motion filed because it is based practically on the same arguments that she duly presented in her recusal motion (inhibitoria) in this case file, which was rejected, such that no legal impediment applies to her. She adds that she refers to the brief she filed justifying her recusal motion.

176.- By means of a document filed with the Secretariat of the Chamber on December 11, 2019, Magistrate Fernando Castillo Víquez appears in response to the hearing granted to him to address the recusal motion that was filed against him by the general secretary of the Judiciary Union (Sindicato de la Judicatura, SINDIJUD). He indicates that, from reading said document, the only argument raised to request his removal from this matter lies in the existence of a publication made by ANEJUD in which reference is made to his person and which, in his opinion, generates a reasonable assumption of predisposition and therefore affects the principle of impartiality. He considers that accepting the thesis raised by the petitioner would be extremely dangerous, since whenever a person with an interest in a case filed before the Chamber does not want a proprietary magistrate to participate in its resolution, it would suffice for them to raise some type of questioning against said magistrate to request their removal, under the argument that such judge would not comply with the principle of impartiality. He argues that this is a situation that cannot be accepted in any way in a Constitutional State of Law, as it would lead to creating a “Court à la Carte” according to the interests of the parties; a situation that would cause not only harm to the principle of independence of the constitutional Judge, but also eventual changes in the jurisprudential line of the Chamber on relevant issues for the country, thus violating the principle of legal certainty. He adds that the questionings that a social organization makes regarding the different positions taken by the magistrates of this Court are part of the exercise of freedom of expression inherent to a democratic, open society, where one of the characteristics is the free circulation of information and expressions, which require the respect of all its members. He considers that the recusal motion filed must be rejected.

177.- Magistrate Rueda Leal appears in a brief filed with the Secretariat of the Chamber on December 12, 2019, to rule on the recusal motion filed against him by the general secretary and general attorney-in-fact of the Judiciary Union (SINDIJUD). He notes that the grounds supporting the recusal motion are not attributable to his own actions but refer solely to the fact of having been the subject of publications—which the party recusing him qualifies as questionings or attacks—by one of the plaintiffs in this proceeding. He adds that the arguments set forth in the recusal motion regarding his impartiality and independence by virtue of such publications constitute a mere assumption. He adds that while he has been aware of several public statements about his person by some unions or their members, it is no less true that he has also publicly indicated that he respects their freedom of expression, a pillar of the democratic system; hence, his impartiality and independence in the exercise of his position are in no way undermined by critical comments that some may make regarding a jurisdictional ruling. He states that it seems disastrous for the Judiciary for a judge to be removed from a proceeding simply for having been the subject of some public statement against them; if the request made were granted, it would undoubtedly risk opening a loophole for parties to, through the broadcasting of insults, at their whim, freely remove any judge or change the composition of a collegiate court. He argues that, for the foregoing reasons, he does not share the arguments of the person recusing him and considers that there is no ground that makes it impossible for him to resolve the sub iúdice.

178.- By means of a brief filed on December 13, 2019, Jorge Luis Morales García appears in his capacity as General Secretary and general attorney-in-fact of the Judiciary Union (SINDIJUD), and notes that, having seen the statements of those challenged by the recusal motion filed, some considerations must be made that he requests be taken into account when resolving this recusal motion. He states that, firstly, it is not he who argues the existence of an attack on the judicial independence of the magistrates, but that this was an express, concrete, and forceful statement by Magistrate Nancy Hernández, it being she who brought this important and decisive concept, enshrined in the Commentary on the Bangalore Principles of Judicial Conduct, into the arena. He adds that it is also said instrument of international law that defines the scope of a “reasonable assumption of predisposition,” based, in this case, not on the critical comment of one of the intervening parties, nor on the exercise of freedom of expression by the parties, but on the express acknowledgment by Magistrate Nancy Hernández López that, in her case, it qualifies as a “real predisposition” in light of the literal wording of the international instrument invoked. He states that one issue expressly raised in the initial brief filed by his represented party, which all the recused parties sidestepped, consists of the fact that each and every one of them already issued an opinion regarding the resolution of this proceeding when they addressed the legislative consultation during the processing of this law, and that fact alone would be sufficient reason to grant, in light of the value of impartiality and in accordance with the parameters defined by international regulations, their removal from hearing this proceeding, in order to adequately ensure, and in light of the requirements of human rights, impartiality as a guarantee of the Administration of Justice. He indicates that, for the foregoing reasons, he considers the recusal motion filed to be appropriate, and that the allegations of those challenged are not acceptable.

179.- In a resolution at 8:15 a.m. on January 22, 2020, the Acting Presidency of the Constitutional Chamber, exercised by Magistrate Luis Fernando Salazar Alvarado, rejected the recusal motion filed by the representative of the Judiciary Union against Magistrates Castillo Víquez, Rueda Leal, and Magistrate Hernández López, ordering that they be declared qualified to hear this proceeding and that the processing of the case file be continued.

180.- On February 4, 2020, Danilo Eduardo Ugalde Vargas appears in his capacity as special judicial attorney-in-fact to report a new fact and to present an analysis of the arguments provided by the authorities consulted by the Chamber and those put forward by some coadjuvant parties. He indicates that, for the first time, the Inter-American Court of Human Rights, in the judgment of the case Muelles Flores v. the State of Peru, ruled on the right to social security and, in particular, the right to a pension autonomously, under Article 26 of the American Convention on Human Rights, that is, as part of the commitment of States to adopt measures to progressively achieve the full effectiveness of the rights derived from the economic, social, educational, scientific, and cultural norms derived from the Charter of the Organization of American States. He indicates that said Court recognized for the first time in the jurisprudence of the inter-American justice system that social security and pensions are included within human rights as autonomous and justiciable rights, having a basis in the OAS Charter in Articles 3.j and 45.b. He indicates that from the various statements in the judgment, it can be deduced that the purpose of the right to social security is to ensure that persons have a decent life, health, and economic level in their old age, or in the face of events that deprive them of their ability to work—that is, in relation to future events that could affect the level and quality of their lives. The Court concludes that social security is a right that seeks to protect the individual from future contingencies, which, if they occur, would cause harmful consequences for the person, and therefore measures must be adopted to protect them. He states that it also indicated that the old-age pension is a kind of deferred salary for the worker, an acquired right after an accumulation of contributions and completed working time. He adds that the Inter-American Court stated that the United Nations Committee on Economic, Social and Cultural Rights considered, in General Comment No. 19 on the right to social security, that this right encompasses obtaining and maintaining social benefits, whether in cash or in kind, without discrimination, in order to obtain protection in various circumstances, particularly due to lack of work-related income because of old age, including in that observation that the right to social security includes the right not to be subjected to arbitrary or unreasonable restrictions on existing social coverage, whether in the public or private sector, as well as the right to equality in the enjoyment of sufficient protection against social risks and contingencies. He adds that the Inter-American Court considered that said observation contained the following elements of social security: availability, social risks and contingencies, adequate level, accessibility, and relationship with other rights. He indicates that the Court considers that the nature and scope of the obligations deriving from the protection of social security include aspects that have immediate enforceability, as well as aspects that have a progressive nature, imposing the obligation of non-regression with respect to the realization of rights achieved. He adds that for the Court, when the payment of an ongoing pension is suppressed, it causes older adults to feel a detriment to their dignity, since in their lives the pension constitutes the sole or main source of income to meet basic needs, and that said situation of non-payment of the pension implied anguish, insecurity, and uncertainty regarding the future of an older adult due to the lack of economic resources for subsistence, which affects their quality of life and personal integrity. He states that the Court has pointed out that one of the benefits derived from social security, including the right to an old-age pension, forms part of the right to property and must therefore be protected against arbitrary interference by the State; a right that is incorporated into the pensioner's assets. He indicates that the first contribution of this judgment is that it ratifies that the right to social security, to retirement, and to a pension are human rights, and it therefore falls to the Chamber to restore the enjoyment of those rights when they have been violated or breached by the enactment of Ley 9544. He points out that, based on the functions held by the Chamber under Article 48 of the Political Constitution, he requests that the nullity of Ley 9544 and of the processing of bill No. 19,922 be recognized in relation to the norms challenged by his clients, because they are contrary to the human rights to social security, retirement, a pension, and the right to property, which were grossly infringed by establishing taxes in the form of imposts, charges, and special and solidarity contributions, which limited the enjoyment of previously declared and currently enjoyed rights that are part of those expressly recognized by the Inter-American Court of Human Rights, such as: a) that social security must be exercised in such a way as to guarantee conditions to ensure life, health, and a decent economic level for persons; b) that pensions constitute a kind of deferred salary for the worker, an acquired right after an accumulation of contributions and completed working time; c) that the right to social security, retirement, or a pension must not be subjected to arbitrary or unreasonable restrictions on existing social coverage, whether in the public or private sector; d) that social security as a social protection system implicitly carries an obligation of progressivity, meaning that States have the concrete and constant obligation to advance, as expeditiously and efficiently as possible, toward the full effectiveness of said right, to the extent of their available resources, through legislative or other appropriate means; e) as a right related to the principle of progressivity, it is also considered that there is an obligation of non-regression with respect to the realization of rights achieved, by virtue of which the conventional obligations of respect and guarantee, as well as the adoption of domestic law measures that are fundamental to achieve their effectiveness, and f) that the pension and retirement fit within a broad concept of private property, encompassing material and intangible things alike, so that from the moment a worker pays their contributions to a pension fund and ceases to provide services to the institution, to avail themselves of the retirement regime provided by law, they acquire the right for their pension to be governed, in the terms and conditions provided in the original law, by the proprietary effects derived from that legal act. He indicates that if one analyzes the rights and principles present in International Human Rights Treaties concerning the concept and scope of social security, retirement, and a pension—which were recognized for the first time by the Inter-American Court of Human Rights (CIDH) as autonomous and justiciable human rights in the judgment of Muelles Flores v. Peru—and contrasts them, in light of the reform to the pension and retirement regime of the Judiciary introduced by Ley N°9544, one reaches the inescapable conclusion that the reform, by which the right to retirement or a pension could be limited during the enjoyment stage to 45% of the original amount granted, is clearly contrary to the human rights derived from social security, retirement, and a pension enshrined in the international conventions cited in that jurisprudence of the CIDH. Therefore, they cannot be sustained as valid norms within the legal system, and it is the Constitutional Chamber that is called upon to annul said law. In accordance with the above, he considers it clear that Articles 236 and 236 bis of Ley N°9544 are contrary to international conventional law insofar as they constitute regressive norms regarding social security, retirement, and a pension, because they breach the acquired rights of pensioners who receive deferred salaries in their working inactivity, having contributed and acquired a retirement right under the Judiciary regime, by imposing arbitrary and unreasonable restrictions on pensions in the course of payment, disguised as taxes, but in any case affecting the right to property of the former officials of the Judiciary who availed themselves of their right to retire before the reform introduced by Ley N°9544. He indicates that Articles 236 and 236 bis of Ley N°9544 not only breach the international human rights order but are also contrary to what is set forth in our Political Constitution, according to the criteria reiterated by the Constitutional Chamber when analyzing international norms that expand the spectrum of rights under local law. He adds that in Costa Rica, the content of Article 73 of the Political Constitution must be considered, and that the principle of progressivity of social security and social insurance, within which pensions and retirements are found, is present in the Costa Rican constitutional order, and that the arguments put forward by the Attorney General's Office (Procuraduría General de la República) and the Presidency of the Board of Directors of the Legislative Assembly when addressing the hearing granted by the Constitutional Chamber within this Unconstitutionality Action are openly contrary to the principle of progressivity, to acquired rights, and to pension or retirement rights as part of the retired persons' right to property, in the terms established by the CIDH in the judgment of Muelles Flores v. Peru. He recalls that the principle of non-regression of social security is an adequate parameter for analyzing the violation of human rights, especially when there is some recognition of legal and institutional instruments aimed at ensuring, at different levels, the protection of rights or the equality and interdependence of all related categories of rights. He points out that the prohibition of regression of social rights implies that laws must not worsen the regulatory situation of the right in force, from the viewpoint of the scope and breadth of the enjoyment of social rights. He indicates that in the case of social rights, the principle of non-regression of a legal norm implies that there is a presumption of invalidity or unconstitutionality of the norm that restricts rights, transferring to the State the burden of demonstrating the reasonableness, proportionality, suitability, necessity, and/or proportionality of the norm being challenged. He indicates that, in the specific case, shielded by the scarcity of the State's financial resources, an attempt is being made to justify that retirees with pensions in the course of payment see their right to receive a current benefit limited by up to 45%, developing new theoretical and unconstitutional formulations where exaggerated, growing taxes are established to reduce the budgets for the payment of Judiciary pensions. He warns that in the processing of bill No. 19,922, it was not demonstrated that the changes were the only way for the survival or sustainability of the regime, without justifying the regression of the norms being imposed insofar as they establish contributions in the form of taxes and a maximum contribution limit of 55% of the amount declared at the time of granting. He opposes the reports rendered by the Legislative Assembly and the Attorney General's Office and concludes by requesting that the Unconstitutionality Action be granted and that Articles 236 and 236 bis of Ley N°9544 be declared null for being contrary to the International Conventions that protect the human rights cited by the Inter-American Court of Human Rights in the resolution of Muelles Flores v. Peru.

181.- In a brief filed on April 15, 2020, Substitute Magistrate Marta Esquivel appears to recuse herself from hearing this proceeding because the Legislative Assembly appointed a titular magistrate to the position she was occupying, so her appointment ceased and the reason for her qualification to hear this case disappeared. She requests that the case file be sent to the Presidency of the Chamber to resolve accordingly.

182.- In a resolution of the Presidency of the Constitutional Chamber at 9:00 a.m. on April 15, 2020, Substitute Magistrate Marta Esquivel was deemed recused from hearing this matter, and Magistrate Anamari Garro Vargas was declared qualified to hear this matter.

183.- On April 24, 2020, Titular Magistrate Anamari Garro Vargas requests that she be recused (inhibida) from hearing this case file because her brother is a Superior Labor Judge and contributes to the Judiciary Regime, and also because her maternal aunt is a pensioner of this regime. She considers that whatever is resolved here directly affects the sphere of both relatives, to whom she is linked by consanguinity, and therefore there is a direct interest in the resolution of the proceeding, which is why she had been removed from hearing this case file on August 3, 2018. She indicates that now, having been appointed titular magistrate of this Court, the previous circumstances are reinforced because she is now an active contributor to that regime since February 12, 2020. She indicates that for this reason, she requests to be recused from hearing this action.

184.- In a resolution of the Presidency of the Constitutional Chamber at 9:57 a.m. on April 27, 2020, the petition filed by Magistrate Anamari Garro was rejected, and she was declared qualified to hear this matter, ordering that the processing of the case file be continued.

185.- In a document dated April 28, 2020, Magistrate Anamari Garro requests reconsideration of the previous resolution that rejected her request and that she be recused from hearing this case file.

186.- On May 4, 2020, Magistrate Garro Vargas files a document supplementing the petition she filed for reconsideration of the rejection of the recusal motion (inhibitoria) she presented.

187.- By means of a brief filed with the Secretariat of the Chamber on May 14, 2020, the plaintiff Danilo Eduardo Ugalde Vargas appears in his capacity as special judicial attorney-in-fact for the following persons: Alfredo Jones León, Rodrigo Montenegro Trejos, Alfonso Chaves Ramírez, Anabelle León Feoli, Ana Virginia Calzada Miranda, Eva María Camacho Vargas, Rafael Ángel Sanabria Rojas, Mario Alberto Houed Vega, Rolando Vega Robert, Adrián Vargas Benavidez, Eduardo Sancho González, Rosa Iris Gamboa Monge, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Jorge Rojas Vargas, Álvaro Fernández Silva, Luis Fernando Solano Carrera, and Oscar Luis Fonseca Montoya, and requests that, by connection (conexidad), the unconstitutionality of Articles 1, 2 subsection d), 4 subsection b), 5, and 7 of Ley No. 9796 be declared. He indicates that on December 20, 2019, in Alcance N°286, Gaceta N°243, Ley N° 9796 was published, which was processed under legislative file N° 21.035, by which the resources from the special and solidarity contribution on the special pension regimes contained in Articles: 3 of Ley Nº 9383, the Framework Law for the Special Contribution of Pension Regimes of July 29, 2016; 236 bis of Ley Nº 8, the Organic Law of the Judiciary of November 29, 1937; and 71 of Ley Nº 2248, the Law on Pensions and Retirements of the National Teaching Staff of September 5, 1958, which contemplate the regimes of the Judiciary and the National Teaching Staff, are redesigned and redistributed. He indicates that this Ley N°9796, known as the “Law to redesign and redistribute the resources of the special solidarity contribution,” affects that type of contribution of several first-pillar special public regimes, including that of the Judiciary, recently reformed by Article 236 bis of Ley N°9544, which they have challenged as unconstitutional for violation of constitutional norms and principles, both in form and in substance; defects that occurred in the law-making process according to the Unconstitutionality Action filed by this representation on behalf of 21 pensioners of the Judiciary regime, processed under case file 18-014168-0007-CO, accumulated to this case file Nº 18-007819-0007-CO. He states that there is connection or consequence between the provisions of Article 236 bis of Ley N°8, reformed and introduced by Ley N°9544, and Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Ley N°9796, because they are norms regulating the same factual situation: obligating pensioners and retirees to contribute larger amounts, due to a reduction in the exempted amount, and as a consequence thereof, increasing the amounts of the special solidarity contribution that their clients must pay. He considers that a favorable judgment annulling numeral 236 bis, introduced by Ley N°9544 in reforming the Organic Law of the Judiciary, would be ineffective if Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of the referenced Ley N°9796 remain in force. He recalls that Article 89 of the Law of Constitutional Jurisdiction establishes that a judgment declaring the unconstitutionality of a norm or law shall also declare that of the other precepts thereof whose annulment is evidently necessary by connection or consequence. He argues that, regarding the assumptions necessary for an annulment by connection or consequence to exist, the Constitutional Chamber, in judgment 2001-04026, at 2:53 p.m. on May 16, 2001, stated:

“It must be remembered that the annulment of a norm by connection proceeds exceptionally when it is imposed as an unavoidable consequence of the favorable judgment, since otherwise it could not deploy its effects if another norm exists in the legal system that maintains the regulation whose unconstitutionality was declared by this Court, such that, in the final instance, the plaintiff’s claim would not be satisfied. Hence the identity that both normative hypotheses must maintain in relation to the matter discussed in the corresponding action. That is, it is not enough that the reasoning developed in a given judgment is equally applicable to another situation to seek the annulment of the latter by connection: at most, this could lead to the filing of another action invoking the precedents already set by jurisprudence, but can never produce its automatic annulment within the same judicial proceeding in which the precedent was set. In the specific case, the analysis of the arguments outlined in the action has made it evident that the plaintiff's disagreement refers, as already seen, to the normative provision that provides for nullity if the formalities prescribed for the registration of shareholders' meeting agreements are not observed, and the substantive analysis of the action must be focused on that object.” He indicates that the aforementioned Law would fully enter into force on June 20, 2020, and contains norms regulating the same factual situation, that is, obligating pensioners and retirees to contribute larger amounts due to a reduction in the exempted amount and, as a consequence thereof, increases the amounts of the special solidarity contribution that their clients must pay.

It argues that, in support of the consideration that there is a connection, it must be taken into account that the Constitutional Chamber resolved, since the year 2000, in judgment 2000-11036 at 2:00 p.m. on December 13, 2000, that:

"Now, Article 89 of the Law of Constitutional Jurisdiction provides that 'The judgment declaring the unconstitutionality of a norm or law or general provision shall also declare that of the other precepts thereof, or of any other law or provision whose annulment is evidently necessary by connection or consequence, as well as that of the challenged application acts.' In this regard, it must be borne in mind that this Chamber has already indicated in reiterated jurisprudence that this norm 'does not imply an indiscriminate power to annul norms whose constitutionality has not been discussed in the process, but rather it is an obligation for the Chamber whose purpose is to prevent that, once an unconstitutionality has been declared, another norm or norms subsist that render the effects of the estimatory ruling nugatory or from whose non-annulment serious incongruencies would derive within the legal system, and specifically, in the regulation of the same matter, which this Chamber, given its nature as a Constitutional Court, and by its integrating function of the legal order, must annul insofar as it is evidently necessary, as a consequence of the granting of the action, or by connection – juridical or logical – with the questioned point.' (Resolution No. 989-93 at 3:27 p.m. on February 23, 1993)." It considers that, from the transcribed considerations, it clearly emerges that the claim of its represented parties can only be satisfied by annulling Article 236 bis of Law No. 8, introduced by Law No. 9544, and, by connection, Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796, which modified it since December 5, 2019. It indicates that the objective of the bill at its inception, according to the affirmative majority opinion of the Permanent Ordinary Commission on Social Affairs of the Legislative Assembly of September 4, 2019, was:

a. "The initiative in its base text proposes lowering the amount of the exempt base, for the mandatory and solidarity contribution, of the pension regimes of the National Teachers Union, the Judiciary, and the Ministry of Labor, which will allow a considerable group of pensioners who are currently exempt to make the mentioned contribution, and in the future, with the redesign of the exempt base for the payment of the solidarity contribution below the maximum pension cap, agreed upon for all special regimes, it is possible to give extended content over time to the solidarity contribution. ..." b. "Furthermore, it establishes that above eight (8) of the lowest salaries according to the relevant Public Administration (be it the Judiciary, the Executive Branch, the Supreme Electoral Tribunal, the National Teachers Union, the Ministry of Labor and Social Security, etc.), the percentages of deductions for the solidarity contribution would be applied. That is, up to that amount, the pension or retirement would be exempt. This is a modification that falls upon all present and future pension and retirement caps, established in current legislation." c. "... to eliminate the specific destination because, in the end, what will cease to be paid with the increase in the solidarity contribution constitutes a saving for the State. This is because the pensions are not self-financed, but rather mostly constitute public debt, so it would already be contributing to the treasury with the saving." In summary, it points out that bill No. 21,305 sought to resize and increase the special solidarity contribution, similar to the one that already exists in the Organic Law of the Judiciary in its Article 236 bis, but by lowering the exempted amounts (it is reduced from 10 base salaries of the lowest paid salary to 6 base salaries), to collect a greater amount of resources, in the regimes charged to the National Budget or Framework Law, and including the Judiciary and the National Teachers Union, with the purpose of allocating them to contribute to public finances. It adds that the object or purpose of the law that was conceived with bill No. 21,305 and that resulted in Law No. 9796, was to set a lower contribution floor or base (exempt amount) than what existed (for pensioners of the National Teachers Union and the Framework Law, it goes from 10 to 8 salaries), and in the case of the Judiciary, the solidarity contribution is decreased from 10 base salaries of the lowest paid salary in said Branch to 6, in such a way that the number of people and the amount of the contribution is increased, through this type of solidarity contribution; a decrease that, as can be seen, has the purpose of contributing to public finances. It adds that, in accordance with the very text of the norm accused of unconstitutionality by connection, Law No. 9796 was issued, according to its Article 1, with the objective of:

"... contributing to the public finances of the country by applying a redesign of the maximum pension caps and the pension exempt from the special solidarity contribution established on the special pension regimes contained in Articles 3 of Law No. 9383, Framework Law on Special Contribution of Pension Regimes, of July 29, 2016; 236 bis of Law No. 8, Organic Law of the Judiciary, of November 29, 1937, and in Article 71 of Law No. 2248, Law of Pensions and Retirements of the National Teachers Union, of September 5, 1958, which contemplate the regimes of the Judiciary and the National Teachers Union, respectively." It adds that, according to the legislator itself, the special and solidarity contribution increases its collection by redesigning the maximum pension caps and the exempt pension, that is, the condition of the pensioners and retirees of the Judiciary, whose pension amounts exceed the exempt amount, becomes more burdensome, as they must contribute a larger portion of their monthly pensions, hence, with the reform introduced by Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796, these have an evident connection with the norm challenged as unconstitutional within this action, so that even if the unconstitutionality of Article 236 bis of Law No. 8 is declared and the special and solidarity contribution is annulled, if Law No. 9796 is not also annulled, the special solidarity contribution would remain in force in the legal system, subsisting another norm that would render the effects of the estimatory ruling nugatory. It indicates that the text of the bill and subsequently Law No. 9796, created new mechanisms for the definition of the maximum pension caps, establishing a base in each of the pension regimes regulated in the National Teachers Union, the Judiciary, and others such as the general pension regime charged to the National Budget as well as special pension regimes; however, the exempt amounts of the special, solidarity, and redistributive contribution that had previously been set by Article 236 bis of Law No. 8, reformed by Law No. 9544, at 10 base salaries of the lowest paid position in the Judiciary are modified and now limited to 6 base salaries, which undoubtedly establishes a line of connection between the norm challenged as unconstitutional and the new norm 9796. It adds that the objective of Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796, was to increase collection and capture new taxpayers from whom the special, solidarity, and redistributive contribution is deducted. It states that, in the case of the retirees and pensioners of the Pension and Retirement Fund of the Judiciary, pensions with a monthly amount greater than up to ¢2,544,800 (exactly two million five hundred forty-four thousand eight hundred colones), would be exempt from the payment of this contribution and from that amount onward, the retirements would be taxed with the payment of the special solidarity and redistributive contribution. It warns that, with this purpose, Law No. 9796 reforms Article 236 bis of the Organic Law of the Judiciary which speaks of the special solidarity and redistributive contribution, now setting it at 6 base salaries. It indicates that in the case of the Judiciary which owns and administers a Pension and Retirement Fund for its collaborators, the most serious thing is that there is no guarantee that the amounts withheld for the special and solidarity contribution will be allocated to the fund itself, since Article 1 of Law No. 9796 defines that the objective is to contribute to public finances. It adds that the purpose indicated by Law No. 9796 could be contrary to what was ordered by the Constitutional Chamber itself in judgment 1999-05236 at 2:00 p.m. on July 7, 1999, in which it was indicated that the special solidarity contribution must go to the pension fund (social security), by stating specifically:

"For the plaintiffs, the transcribed table shows what they call 'fiscal voracity'. The argument, as presented for examination, is also not admissible, because this Chamber has already indicated that this type of contribution to the regime is not assimilable to a tax. Now, the questioned provision indicates that this contribution will be made 'in favor of the State', but given the special circumstances surrounding the regulation under examination, the Chamber understands that what the norm expresses is that the contribution is in favor of the retirement and pension regime, since there is no justification for a contribution that has been provided to swell that fund, to have to enter the coffers of the Public Treasury as such, that is, to the single fund of the State. It should be remembered that the jurisprudence of this Court has been consistent in indicating that these contributions, by their nature, do not constitute taxes, in the terms that the Political Constitution provides in Articles 18 and 121 subsection 13), and if that is so, but rather a special contribution for a social security system that must be financed, in principle, in equal parts by the workers, the employers, and the State, it would be a legal misunderstanding for a contribution to be provided in favor of only one of these three subjects, because such a manner of proceeding would result in a lawful means to circumvent the obligations that the Political Constitution has devised; that is, by this route, the State could easily transfer the burden of its contribution to the rest of the obligated parties (servants and employers), thus emptying the content of constitutional provision 73. In accordance with the foregoing, obliging one of the involved parties to contribute in favor of another, injures numeral 73 of the Political Charter, it being constitutionally admissible, however, that this contribution that the legislator has established by law, has as its sole purpose that of nourishing the social security fund; that is, the contribution that is questioned in the action is conceived, solely, to favor the regime of the obligated taxpayers, but under no circumstance can those funds enter the State's coffers, with the character of current income and to satisfy current expenses other than the burdens of the retirement and pension system. In accordance with the foregoing, the unconstitutionality of the phrase contained in Article 70 that literally states: 'shall contribute in favor of the State...' is clear. In all other respects, the action is inadmissible." (Underlining and emphasis not in the original) It adds that Law No. 9796 and Article 236 bis of the Organic Law of the Judiciary would also be unconstitutional, insofar as both norms broke the equilibrium in the financing of pension funds established in Article 73 of the Political Constitution and that has been repeatedly recognized by the Constitutional Chamber, because when it is a special contribution for a social security system that must be financed, in principle, in equal parts among the workers, the employers, and the State, it being a legal misunderstanding, which makes it unconstitutional, for a contribution to be provided in favor of one of these three subjects in a more burdensome and disproportionate manner than for the other two. It states that, in this case, the pensioners and retirees of the Judiciary would have to contribute up to 55% of their pension income, while the contribution of the employer (Judiciary) and the State remains unchanged. It insists that Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796 that reforms Article 236 bis), are connected with the norm challenged in this action insofar as they decrease the exempt base, increase the number of taxpayers and the amount of the contribution for pensioners who previously contributed in smaller proportions, as it has the same unconstitutional substrate as Article 236 bis of Law No. 8. It adds that, with the purpose of clearly showing the effect produced by Law No. 9796 in aggravating the condition of the pensioners and retirees of the Judiciary, due to the reform introduced by Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796 to Article 236 bis of the Organic Law of the Judiciary, it provides a summary of the legal modifications and the real effects on the ongoing pensions of its represented parties: a) in Article 1, the object of the law is defined and it is indicated, in what is relevant, that Law No. 9796 will modify Article 236 bis of the Organic Law of the Judiciary, introduced by Law No. 9544, and that the object of the law is to contribute to the public finances of the country; b) in Article 2 subsection d) of said Law No. 9796, it is indicated that it will apply to various pension regimes, including the one regulated by Law No. 8 known as the Organic Law of the Judiciary, therefore, regarding the scope of that law, there is connection with Article 236 bis of Law No. 8, Organic Law of the Judiciary; c) in Article 4, the maximum and universal amount of pension exempt from the special solidarity contribution is regulated, and the maximum limit of the exempt pension for the pensioners and retirees of the Judiciary is expressly modified, going from 10 base salaries of the lowest paid position to 6 salaries of the lowest paid position in said Branch; d) in Article 5, a maximum limit of deductions for the pensions and retirements of the Judiciary of 55% is established, as indicated by Article 236 bis of Law No. 8, Organic Law of the Judiciary; that is, there is an evident connection or consequence in both norms, so both must be annulled; e) in Article 7, subsection a) of Article 236 bis of Law No. 8, Organic Law of the Judiciary, is reformed and established that on the excess of six (6) base salaries of the lowest paid position by the Judiciary, the percentages of the special solidarity contribution will be applied; that is, the calculation base of the pension exempt from the special and solidarity contribution is decreased, which was previously at 10 base salaries and is set at 6 base salaries, the connection being evident and manifest with Article 236 bis of Law No. 8, Organic Law of the Judiciary. It states that it is very clear that there is no technical support in the legislative file, except the evident intention for the pensioners of the National Teachers Union, the Treasury, and the Judiciary to have a very similar exempt base. It adds that by decreasing the minimum exempt base from 10 base salaries of the lowest paid position in the Judiciary to 6 base salaries, the maximum amount of exempt pension is decreased by 40%, going from ¢4,258,000.00 to ¢2,554,800.00, considering that the lowest paid salary in the Judiciary is the sum of ¢425,800.00 at the date of filing this document with the Chamber. It adds that an example of the connection or consequence is found in the impact generated by the modification of Article 236 bis of the Organic Law of the Judiciary by Law No. 9796. It adds that the amount of the special solidarity contribution for a pensioner or retiree with an assigned monthly benefit of ¢6,000,000, under Article 236 bis) of Law No. 8, Organic Law of the Judiciary, would be ¢643,575.00, which represented 10.73% of the nominal pension amount; however, it clarifies that applying the articles of Law No. 9796, said percentage increases from 10.73% to 24.95%, that is, it goes from ¢643,575.00 to an amount of ¢1,497,059.06, thereby increasing by ¢516,476.51. It adds that this Law No. 9796 that reforms Article 236 bis of the Organic Law of the Judiciary, makes the special and solidarity contribution much more burdensome for the pensioners and retirees of the Judiciary, who receive amounts higher than the sum of ¢2,554,800.00, and hence the connection or consequence between Article 236 bis of Law No. 8 and Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796 is evident and manifest. It states that the special solidarity contribution of the pensioners of the Judiciary, when the reform of Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796 enters into force in June 2020, will produce a significant effect by modifying the minimum exempt base from 10 base salaries of the lowest paid position in the Judiciary to 6 salaries, thereby abruptly increasing the special and solidarity contribution, and this implies that all pensions greater than ¢5,500,000 will be reduced by 55%, leaving the holder the enjoyment of only 45% of the nominal pension amount, that is, it not only replicates the special solidarity contribution, but aggravates it to the detriment of the retiree and pensioner. It adds that the changes indicated in Law No. 9796 have no technical support in the legislative file, but do have criteria for public spending control, even though in the case of the Judiciary there is a true fund. It points out that for a pensioner with a monthly benefit of ¢6,000,000, upon the entry into force of Law No. 9796, the special solidarity contribution increases, going from ¢643,575 to ¢1,497,059, because by lowering the exempt base from 10 base salaries (¢4,258,000.00) to 6 base salaries (¢2,554,800.00), the amount to be contributed in a special and solidarity manner nominally increases by ¢516,476.51. It indicates that bill No. 21,305 prior to the approval of Law No. 9769, did not have actuarial studies that could determine what the economic projections would be to collect with that new tax burden. It points out that, for judicial pensioners, a mandatory contribution of 13% has been set to contribute to the maintenance of the Fund and also a special solidarity and redistributive contribution that maintains a contribution scale from 35% up to 55%, warning that there is also a lack of a technical study to determine whether those two contributions could or could not be considered as a double tax burden for the pensioners and retirees and as a confiscatory act of the amounts earned. It indicates that the requirement for complete and serious technical studies derives from Convention 102 of the ILO and is enshrined in the constitutional jurisprudence of this Chamber (See judgment 2379-96 of the Constitutional Chamber). It states that, prior to the approval of Law No. 9769, the principle of necessary reasonableness and proportionality was violated because, in the absence of determinative technical studies, what is done is to make a simple political decision, freely, with illicit confiscation. It indicates that the Constitution obliges safeguarding the assets and economic income of workers, which extends to passive servants. It adds that although the cap of the principle of 55% of affectation to the gross amount is respected, the truth of the matter is that for the deputies they are transforming that limit into a goal, that is, what is sought, little by little, with various laws, is simply to affect to the maximum possible extent, without due technical justification, as reflected in Article 5 of Law No. 9796, a principle that was also adopted by Article 236 bis of Law No. 8, Organic Law of the Judiciary. It considers that consolidated legal situations are injured, with manifest violation of Article 34 of the Political Constitution. It adds that the prevailing doctrine on acquired rights is not ignored (there is no right to the immutability of the legal system), given that in these cases it is a consolidated legal situation, which, once again, Law No. 9796 disregards. It adds that the principle of the prohibition of double taxation is disrespected because the solidarity contribution is such only formally because financially it is a simple levy that will go to strengthen public finances and implies directly taxing income, in a double manner, because it is already taxed by the income tax. It points out that these pensions are among the most heavily taxed that exist because, as indicated above, deductions are made for the pension fund, for income tax, for health insurance, the solidarity contribution, and the financing for the Administrative Board. It argues that both Article 236 bis accused of unconstitutionality and Articles 1, 2 subsection b), 4 subsection b), 5, and 7 of Law No. 9796, which are connected, present a clear violation of the Inter-American Convention on the Human Rights of Older Persons, approved by Law 9394 of September 8, 2016, and are far from reinforcing the legal rights of older adults so that they continue to enjoy a full pension and help from the State, independent and autonomous, with health, security, integration, and participation in the economic, social, cultural, and political spheres, because such norms worsen the quality of life of the pensioners of the Judiciary, who, relying on a legitimate expectation, took retirement, without expecting that by subsequent actions of the State, the net pension amount would be reduced by 55% by paying contributions and the special and solidarity contribution which, together, undoubtedly become mandatory payment taxes. It argues that, for the reasons stated and because there is an evident connection between Article 236 bis of Law No. 8, introduced by Law No. 9544, and Articles 1, 2 subsections b), 4 subsection b), 5, and 7 of Law No. 9796, it requests that the indicated norms be annulled, because one is a reflection of the other, insofar as they regulate the special and solidarity contribution of the retirees and pensioners of the Judiciary and also because both are unconstitutional by violating the principles and norms of international treaties and conventions and the Political Constitution, which protect the fundamental right to retirement.

188.- By resolution at 8:44 a.m. on June 2, 2020, the Presidency of the Constitutional Chamber rejected the motions filed by Magistrate Garro Vargas, and she was declared qualified to hear this action of unconstitutionality. It was ordered to continue with the processing of the case file.

189.- On June 9, 2020, Magistrate Garro Vargas files a motion before the Full Chamber of the Constitutional Chamber with a request for recusal so that it is heard there and that the nullity be ordered of the resolution of the Presidency of the Chamber at 9:00 a.m. on April 15, 2020, in which it was ordered to separate substitute magistrate Marta Esquivel from hearing this action and she was declared qualified to do so.

190.- On June 10, 2020, Magistrate Castillo Víquez files a request for recusal to hear the motion filed by Magistrate Garro Vargas before the Full Chamber of the Chamber, considering that it is appropriate because he has signed the resolutions regarding which Magistrate Garro has requested reconsideration and/or review. He sends the proceedings to the Acting Presidency of the Chamber so that what is legally appropriate is resolved.

191.- On June 11, 2020, Magistrate Garro Vargas files an addition to the request she filed to be recused from hearing this case file.

192.- In a resolution of the Acting Presidency of the Constitutional Chamber at 1:00 p.m. on June 29, 2020, the recusal formulated by Magistrate Castillo Víquez was rejected, so he, in his capacity as Titular President of the Chamber, must resolve what is legally appropriate regarding the motion filed by Magistrate Garro Vargas, as well as regarding the related matters presented subsequently.

193.- By resolution of the Presidency of the Constitutional Chamber at 3:15 p.m. on July 6, 2020, the request for recusal regarding the motion directed to the Full Chamber of the Chamber formulated by Magistrate Garro Vargas was rejected and it was ordered to continue with the processing of the case file.

194.- Through a document filed with the Secretariat of the Chamber on July 21, 2020, Jorge Eduardo Cartín Elizondo appears in his capacity as General Secretary of the Union of Workers of the Judiciary (Sindicato de Trabajadores y Trabajadoras del Poder Judicial) and states that between May 29 and June 15, both of 2018, the Unions and other Guild Associations of the Judiciary filed actions of unconstitutionality against the reform of the retirement and pension fund of the Judiciary, as can be seen from case files 18-009275-0007-CO, 18-008202-0007-CO, and 18-008591-0007-CO, all accumulated to case file 18-007819-0007-CO. He indicates that, as of the date of filing this document, the different indicated actions of unconstitutionality have not been resolved, thus leaving pending the legal situation of persons who have met the requirements to retire or draw a pension as established by the previous regulation that was reformed by the regulations challenged through the mentioned actions of unconstitutionality. He points out that different requests for interim measures have been filed that to date have not been resolved, causing harm to workers of the Judiciary. He states that Article 25, in relation to 1, 2, and 8 of the American Convention on Human Rights, establishes the state obligation to offer the person a recourse that is effective to protect any violated fundamental right. He considers that there has been a violation of access to prompt and complete justice and access to an effective recourse, given that, within access to justice, there is a significant obstacle for the enforceability of economic, social, and cultural rights, such as the lack of adequate judicial mechanisms for their protection, as well as falling into the error that by instituting such recourses, this mandate is fulfilled and that, in that way, not resolving or resolving what is appropriate can be deferred in time in an unjustified and exaggerated manner, as in this matter where two years ago the actions of unconstitutionality were filed and to date they remain inexplicably shelved. He adds that the judicial actions typified by the internal legal system of the country, especially when dealing with resolutions of the Constitutional Court, must seek the protection of classic civil and political rights; however, the lack of effectiveness of the recourses created by the internal legal order of the States to protect economic, social, and cultural rights violates the norms of international human rights instruments that enshrine the right to access such recourses, and consequently, to obtain a resolution within a prudently adequate time. He indicates that these norms establish, ultimately, the right of the holder of a right to have an action for its protection, but above all that this action generate the proper results of a judicial judgment. He adds that the recognition of rights imposes the creation of judicial actions or of another type, that allow their holder to claim before a judicial authority or another with similar independence, given the lack of compliance with their obligation by the obligated subject, with the consequent resolution by the courts, of the arguments put forward by the party that considers a fundamental right (or several as in this case) has been violated. Therefore, he points out that the recognition of rights is also the recognition of a field of power for their holders and in that sense, it can act as a way to re-establish balances in the framework of markedly unequal social situations. In this way, he explains that the recognition of economic, social, and cultural rights leads to recognizing the need to have adequate and effective mechanisms for claiming these rights of an individual and collective nature, the issue of judicial recourses of a collective nature or class actions in matters of social rights being an important aspect. He points out that these rights have a clear collective dimension and their violation usually occurs as an affectation of more or less determined groups or collectives, as in this matter, because as indicated in the actions of unconstitutionality filed, the rights of the collective of workers of the Judiciary have been seriously affected, but no less so has judicial independence been affected by the reform questioned as unconstitutional.

It is emphasized that the various mechanisms for accessing justice of a collective nature allow for the oversight of public policies by diverse social actors, especially groups or communities affected by structural situations that violate their rights, as in this matter, the incidence of the Executive and Legislative Branches on the pension conditions for Judges of the Republic; a matter that evidently should be the purview of the Judicial Branch to resolve, without interference from the other branches of the Republic, and a similar case occurs with persons working as prosecutors of the Republic, not to mention the officers of the Judicial Investigation Agency (Organismo de Investigación Judicial) or the Public Defense. Thus, collective amparo actions, tutela actions, class actions, declaratory judgment actions (acciones declarativas de certeza), unconstitutionality actions (acciones de inconstitucionalidad), and the public civil action (acción civil pública) act as avenues for the social control of policies and, at the same time, serve to activate accountability processes and systems of checks and balances among the very organs of the State. Despite what has been indicated, despite having evidenced a series of formal and substantial violations, both to the very law to be observed, such as the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa) when issuing norms, and to constitutional norms and principles evidenced in the actions filed, it is considered that this exercise of control has been denied to date by the inertia that the Constitutional Chamber (Sala Constitucional) of the Judicial Branch of Costa Rica has inexplicably demonstrated. In these actions, environmental organizations, user groups, indigenous peoples, women's and human rights organizations, or public officials empowered to represent collective actors, as is the case of unions and different associations of workers within the Judicial Branch, have managed to influence, through the actions of judicial bodies in very diverse ways, the orientation of social policies, a possibility and exercise of right that has been denied due to the failure of prompt and complete justice, as well as, up to this point, by lacking an effective remedy (recurso efectivo). It points out that this type of action has driven discussion processes on various public policies regarding social security reform guidelines; massive pension and salary reduction policies; policies for providing medications for HIV/AIDS; quota systems for the Afro-descendant population in the field of education; the distribution of budget allocations for public education; the exclusion of social sectors from the scope of food assistance plans; practices of discrimination against immigrants in access to social services and housing plans; and the failure to comply with social policies for the population displaced in an armed conflict. It states that these actions, moreover, have contributed to overseeing companies providing public services in order to protect users' rights, or private companies and groups conducting economic activities with environmental effects; they have also served to demand information and require participation mechanisms in the processes prior to policy formulation, or the granting of concessions for potentially harmful economic activities. It argues that the validity of adequate mechanisms for claiming social rights, but above all, as has been persistently emphasized, their resolution, is a central issue to consider in the judicial reform agenda in the region to strengthen access to jurisdiction and social and political participation in the realm of justice, as well as for the oversight of state policies and the actions of private actors, whose actions impact the exercise of those basic rights. Within this framework, it recalls that the Inter-American Human Rights System has recognized the importance of developing effective and suitable judicial remedies (recursos judiciales efectivos e idóneos) for the protection of economic, social, and cultural rights, and has begun to outline standards regarding the formulation and implementation of adequate mechanisms for the enforcement of these rights, as discussed below. It adds that the American Convention establishes the right to a specific judicial guarantee, aimed at effectively protecting persons against the violation of their human rights; basically, Article 25 of the instrument enshrines the right to have simple, rapid, but above all effective remedies against the violation of fundamental rights, for it would be a Pyrrhic victory to be able to file all the unconstitutionality actions deemed necessary if they are not going to be resolved, as in this case. Thus, it points out that the American Convention requires: a) The state obligation to create a simple and rapid remedy, primarily of a judicial nature, although other remedies are admissible to the extent that they are effective, for the protection of "fundamental rights" contained in the Convention, the Constitution, or the law; b) Concomitantly with the previous state obligation, this international human rights instrument requires that the remedy be effective, that it not remain in a desk drawer, sleeping the sleep of the just; c) It also stipulates the need for the victim of the violation to be able to file it; d) It requires the State to ensure that the remedy will be considered; again, this obligation is paired with the effectiveness of the unconstitutionality actions filed; e) It points out that the remedy must be able to be directed even against acts committed by public authorities, therefore the remedy is also capable of being directed against acts committed by private subjects; f) It commits the State to develop the judicial remedy; and g) It establishes the obligation of state authorities to comply with the decision issued from the remedy. Now, it argues that these state obligations emanate from the linkage between the scopes of Articles 2, 25, and 1.1 of the American Convention; the foregoing inasmuch as Article 2 of the ACHR requires the State to adopt measures, including legislative ones, to guarantee the rights established by that instrument that were not yet guaranteed, which includes the right to an effective remedy in case of individual or collective impacts to economic, social, and cultural rights. It states that the States Parties are obliged, by Articles 25 and 1.1 of the American Convention, to establish a system of simple and rapid domestic remedies, and to give them effective application; if they de facto do not do so, as this violation is materializing with the lack of resolution of these actions filed by the Constitutional Chamber of the Judicial Branch of Costa Rica, a violation of Articles 25, 1.1, and 2 of the ACHR is incurred. 3. Thus, it points out that it is thereby evidenced that the American Convention postulates the obligation to provide simple, rapid, but above all effective remedies against the violation of human rights. It indicates that it is possible to pause, briefly, then, on the scope of such characteristics of the guarantee. It adds that in accordance with the jurisprudence of the Inter-American Human Rights System, it is possible to establish that the concept of "effectiveness" of the remedy presents two aspects. One of them, of a normative nature, the other of an empirical nature. It points out that effectiveness is linked to the so-called "suitability" (idoneidad) of the remedy and represents its potential "to establish whether a violation of human rights has been incurred and to provide what is necessary to remedy it" and its capacity to "give results or responses to human rights violations"; a topic that has been analyzed by the Inter-American Court of Human Rights (Corte IDH) since its first pronouncements, an example of which is found in the Velásquez Rodríguez Case. It points out that the analysis is situated on the plane of the normative design of the remedy: it must offer the possibility of raising the violation of a human right as an object and achieving adequate remedies for these violations. It adds that the Inter-American Commission (Comisión Interamericana) has also outlined standards aimed at characterizing a remedy as effective, and in this sense, in its merits report in the Case of Loren Riebe et al., the Commission established that for the purpose of determining the simplicity, rapidity, and effectiveness of the amparo filed by the three priests against the decision of the Mexican State to expel them from its territory, the following should be taken into account: a) the possibility of the remedy to determine the existence of violations of fundamental rights; b) the possibility of remedying them; c) the possibility of repairing the harm caused and allowing the punishment of those responsible. It highlights that there the IACHR reached the conclusion that there has been a violation of Article 25 of the ACHR, taking into account, among other issues, the scope of the judicial review of the administrative expulsion decision. For its part, in other cases, this issue has been analyzed by the Inter-American Commission also referring to the virtuality of Article 8 of the ACHR. It adds that regarding the second aspect of the "effective" remedy, reference is made to the empirical type, which relates to the political and institutional conditions that allow a legally provided remedy to be capable of "fulfilling its purpose" or "obtaining the result for which it was conceived." Thus, in this second sense, a remedy is not effective when it is "illusory," because it proves very burdensome for the victim, or because the State has not ensured its proper application by its judicial authorities. Thus, the Inter-American Court has highlighted, time and again, that: "Those remedies that, due to the general conditions of the country or even due to the particular circumstances of a given case, prove to be illusory cannot be considered effective. This can occur, for example, when their uselessness has been demonstrated by practice, because the Judicial Branch lacks the independence necessary to decide impartially or because the means to execute its decisions are lacking; or because of any other situation that constitutes a framework of denial of justice (denegación de justicia), as occurs when unjustified delay is incurred in the decision; or, for any reason, the alleged injured party is not permitted access to the judicial remedy." It adds that regarding independence when resolving, it must be remembered that a Magistrate of the Constitutional Chamber has been recused, has openly stated that she would not deviate from what the Legislative Assembly decided in this regard concerning the reform of the pension and retirement regime of the Judicial Branch. It indicates that in another case, the petitioners alleged the violation of the right to judicial guarantees and to effective judicial protection (protección judicial efectiva) due to the violation of the reasonable time for adopting a decision on the merits, in the processing of the amparo action they had filed with a view to guaranteeing their fundamental rights; the complete lack of effectiveness of the amparo action for the protection of fundamental rights was thus argued. It indicates that in this case, there has been more than two years of waiting without the question posed to the Chamber being resolved. It states that undoubtedly social rights have a collective dimension and, therefore, their violation usually presents itself as an impact on more or less determined groups or collectives, which is the specific case under study of a collective of workers of the Judicial Branch of Costa Rica. In this way, it indicates that an essential component of the enforceability of rights in the justice system is the possibility of having this type of actions representing public or collective interests, whatever their procedural design, included in Article 25 of the American Convention, and intimately linked with the right of association and participation in public affairs, insofar as it involves the type of suitable and effective judicial remedies for the protection of this type of rights. Within this framework, the Inter-American Human Rights System has begun to outline standards on judicial protection mechanisms that guarantee collective litigation and, in particular, on the scope of the state obligation to ensure this type of claim procedures in national judicial systems. It argues that the aforementioned scenarios necessarily demand the design and implementation of collective litigation mechanisms, which are those cases in which the ownership of a right corresponds to a plural or collective subject, or in which the right necessarily requires forms of collective exercise; cases in which, in order to claim judicial protection, it is necessary that someone can invoke the group or collective impact, and not just the individual impact. In a similar vein, it is necessary that someone be in a position to claim a remedy of a collective nature, and not just one that is exhausted in its individual scope. It argues that in this particular matter, we are faced with the unconstitutionality actions filed by different unions and guilds of the Judicial Branch in the proper exercise of protecting their economic and social rights from a collective perspective, hence the need for this matter to be resolved to decide subsequent admissibility from the legal perspective of their rights, those which have been violated by the reform under question. It concludes that Article 25 of the American Convention establishes the state duty to create a simple, rapid, and effective remedy for the protection and guarantee of human rights; thus, the organs of the Inter-American Human Rights System have begun to outline standards in relation to the scope of such obligation regarding economic, social, and cultural rights, and despite the vast jurisprudence of the Inter-American System, the Constitutional Chamber of the Judicial Branch of Costa Rica has ignored and shelved (engavetado) the various unconstitutionality actions that the Unions and different Associations of workers of the Judicial Branch have filed against the illegitimate reform to the pension and retirement fund of the Judicial Branch. It adds that both the Inter-American Commission and the Inter-American Court have identified the need to provide procedural measures that allow the immediate safeguarding of social rights, even though the merits of the issue may require a more prolonged analysis over time. The Inter-American Commission has identified certain essential characteristics that these measures must have to be considered suitable in light of the American Convention. Thus, it has postulated that they must be simple, urgent, informal, accessible remedies processed by independent organs; that they must be able to be processed as individual remedies and as collective injunctive relief (medidas cautelares colectivas) in order to safeguard the rights of a determined or determinable group; that broad active standing must be guaranteed in their regard; that they must possess the possibility of accessing national judicial bodies in the face of fear of partiality in the actions of local justice; and, finally, that the application of these protection measures must be provided for in consultation with the affected parties. However, it points out that the Constitutional Chamber has ignored the requests for injunctive relief (medidas cautelares) that the Unions and Associations of the Judicial Branch have filed against the application of the illegitimate reform of the pension and retirement fund of the Judicial Branch. It states that in recent times, the Inter-American Court and the Inter-American Commission have recognized the need to protect economic, social, and cultural rights, no longer only in their individual dimension, but also in their collective aspect. Within this framework, the Inter-American Human Rights System has begun to outline standards on judicial protection mechanisms aimed at guaranteeing collective litigation and especially, in relation to the scope of the obligation of States to provide this type of claim procedures; however, it indicates that the Constitutional Chamber of the Judicial Branch in Costa Rica has ignored this possibility, making null and void their right to have the unconstitutionality actions filed resolved within a reasonable time, despite the clear evolution the Inter-American System has undergone in this matter, as it has expressly recognized the collective dimension of certain rights and the need to outline and put into practice legal mechanisms with a view to fully guaranteeing this dimension. In this way, it indicates that the greater scopes that the organs of the Inter-American Human Rights System have recognized for the guarantee provided in Article 25 of the ACHR are evidenced, in order to contemplate within its framework the effective judicial protection (tutela judicial efectiva) of collective rights. It indicates that the jurisprudence of the Inter-American Human Rights System is firm and settled when demanding the effective validity of the right to effective judicial protection of economic, social, and cultural rights. In this respect, for example, the Inter-American Court has recognized the need for States to design and implement effective legal claim mechanisms for the protection of essential social rights, such as workers' rights; mechanisms that do not remain in the possibility of appealing, but in effective resolution, its reasoning and justification. At the same time, it indicates that the IACHR has determined that the right to effective judicial protection requires compliance with judicial injunctive decisions, so the failure to comply with these measures can also entail the violation of this right. It adds that the Inter-American Commission has also outlined a relevant standard regarding the limits of the actions required of victims in order to achieve compliance with judicial orders in their favor; thus, it has stated that States must guarantee the fulfillment of said judicial decisions immediately and without requiring the affected parties to pursue additional compliance actions, whether in the criminal, administrative, or any other sphere. It adds that the importance of resolving matters brought to the attention of the Constitutional Court, in this case, is of such magnitude that even the Inter-American Court has considered that to speak of "effective judicial remedies" it is not enough for final decisions to be issued in proceedings that decide the safeguarding of the rights at stake, since the enforcement stage of such decisions must also be understood as an integral part of the right to effective judicial protection. At the same time, the Court has held that in the case of judgments in amparo actions, given the particular nature of the protected rights, the State must comply with them in the shortest possible time, adopting all necessary measures to that effect. On this point, it argues that the Court is emphatic in affirming that budgetary norms cannot justify a prolonged delay in the compliance with judicial decisions that safeguard human rights; however, it alleges that in this particular case, it has not even been possible to reach the stage of effective judicial resolution, so human rights are openly being violated, as has already been extensively argued in the unconstitutionality actions filed. It concludes by respectfully requesting that the unconstitutionality actions accumulated in file 18-007819-0007-CO be resolved so as not to see further violated the human rights that assist judicial officials, as well as persons who are already retired or pensioned.

195.- In a brief submitted to the Chamber's Secretariat on July 21, 2020, the petitioner Danilo Eduardo Ugalde Vargas appears to state that between the date this proceeding began and the time he presents this document, 4 of his represented parties, older adults and pensioners of the Judicial Branch, have passed away, specifically Messrs. Eduardo Sancho González, Alfonso Chaves Ramírez, Rosa Iris Gamboa Monge and Óscar Luis Fonseca Montoya; that is, of the 21 petitioners who initiated this proceeding seeking constitutional justice for being directly affected by Law 9544, 4 have passed away, representing 19.5% of his total represented parties. He indicates that because his represented parties are older adults, with an average age exceeding 65 years, he requests the special protection provided by Article 51 of the Constitution and various international instruments, also recognized in different rulings of the Constitutional Chamber, in order for this file to be given prompt dispatch. He recalls that these regulations guarantee the right of older adults to be heard with due guarantees and within a reasonable time, including through the adoption of procedural adjustments in all judicial and administrative proceedings at any stage, which is why he requests that the issuance of the final resolution in this proceeding be expedited. He argues that his represented parties have the right to receive special attention from judicial authorities, as a reasonable means of promoting their effective protection, respect for their economic and retirement rights, all guaranteed in the Social State of Law (Estado Social de Derecho) regulated by the Political Constitution. He concludes by requesting prompt dispatch so that a judgment may be issued, urgently, in the unconstitutionality action being processed in this file.

196.- By means of a brief submitted on July 24, 2020, Álvaro Rodríguez Zamora appears in his capacity as General Secretary of the Union National Association of Criminalistics Investigators (Sindicato Asociación Nacional de Investigadores en Criminalística), to point out that despite the time that has elapsed since the various unconstitutionality actions that have been accumulated to this file were filed, to date no judgment has been issued, and thereby, the legal situation of persons who have met the requirements to retire or receive a pension as established by the previous regulations is left pending. He indicates that several requests for injunctive relief have also been filed, which have likewise not been resolved, causing serious prejudice to the workers of the Judicial Branch. He indicates that he requests prompt dispatch of this file, considering that a violation of access to prompt and complete justice as well as access to an effective remedy (recurso efectivo) has occurred. He points out that even when the right to file remedies is recognized, these are meaningless if they are not resolved promptly. He reiterates the claims raised in the various unconstitutionality actions and requests that they be resolved promptly so as not to see further violated the rights that assist judicial officials, as well as those who are already retired and pensioned.

197.- As stated supra, by means of a resolution at 9 hours 31 minutes on May 10, 2019, the hearings granted to the Office of the Attorney General (Procuraduría General de la República), the Supreme Court of Justice (Corte Suprema de Justicia), and the Legislative Assembly were deemed answered.

198.- In the interlocutory judgment of the Full Court of the Constitutional Chamber number 2020-015544 at 12 hours 10 minutes on August 20, 2020, the motion for nullity filed before the full court, against a previous resolution that had dismissed the motion for recusal (solicitud de inhibitoria) filed by Magistrate Garro Vargas, was rejected by majority.

199.- By means of an interlocutory resolution of this Court at 12 hours 30 minutes on August 20, 2020, several motions for prompt dispatch filed by some of the petitioners were acknowledged; requests that were rejected due to the existence of objective and reasonable grounds justifying the processing given to the file.

200.- By means of a brief submitted to the Chamber's Secretariat on October 30, 2020, Danilo Eduardo Ugalde Vargas, of known qualities in the case file, appears to point out that he is providing evidence to demonstrate that the pension cap (tope de pensión) and the special, solidarity, and redistributive contribution (contribución especial, solidaria y redistributiva), which affects the retirements and pensions of the Judicial Branch, incorporated in Law 9545 published in the Official Gazette La Gaceta No. 89 of May 22, 2018, and the modification of the referred cap incorporated in Law 9796 published in the Official Gazette La Gaceta No. 243 of December 20, 2019, are not based on actuarial technical studies and do not comply with the principles of reasonableness and proportionality. He adds that in judgment No. 01625-2010 at 9 hours 30 minutes on January 27, 2010, the Constitutional Chamber indicated that the establishment of a cap on retirements and pensions per se is not unconstitutional, as long as it respects the principles of proportionality and reasonableness and is based on technical studies. He adds that in judgment No. 05758-2018 at 15 hours 40 minutes on April 12, 2018, of this Court, when evacuating the non-binding judicial review (consulta facultativa) of the draft Law for Comprehensive Reform of Various Pension Regimes and Related Regulations, legislative file 19922, the Chamber outlined that the State may establish regressive measures for retirements and pensions, in this case, the establishment of a cap and a special, solidarity, and redistributive contribution, provided that the public authorities bear the burden of proving that the cuts are justified in light of the set of socioeconomic rights, and that if regressive measures for the right to retirement and pension are to be adopted, a technical study must be available. He adds that, due to the jurisprudential line the Chamber has been maintaining, ratified even by recent judgments, on September 7, 2018, they filed an unconstitutionality action against Law 9544, published in the Official Gazette La Gaceta No. 89 of May 22, 2018, "REFORM OF THE JUDICIAL BRANCH RETIREMENT AND PENSION REGIME CONTAINED IN LAW 7333, ORGANIC LAW OF THE JUDICIAL BRANCH, OF MAY 5, 1993, AND ITS REFORMS". He indicates that, from that opportunity, they demonstrated with arguments that the budget assumptions that the Chamber has been developing are not met, in the sense that there is no technical study that recommends establishing the special, solidarity, and redistributive contribution as a way to improve the actuarial situation of the regime in the long term, nor is there technical foundation determining the percentages or whether these, or the established parameters, prove to be reasonable and proportional as parameters of constitutionality or whether the application of that contribution becomes confiscatory. He states that, according to the indicated judgments, and being clear that, as the Chamber said, it is up to the State to prove that technical studies do exist that support the establishment of the cap and the corresponding special, solidarity, and redistributive contribution; nonetheless, for the sake of celerity, procedural economy, and to obtain prompt and complete justice, he reports that some of the petitioners have taken it upon themselves to request Dr. José Antonio Cordero Peña, Director of the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica, which is the entity responsible for the actuarial study prepared at the request of the Judicial Branch with a cut-off date of December 31, 2015, that served as the basis for processing draft Law 19,922, which resulted in Law 9544, to inform whether, in the documents that make up the final products of that actuarial study, the development of studies, analyses, formulas, projections, and charts, among others, is recorded, that support the establishment of a cap and a special, solidarity, and redistributive contribution, adhering to the principles of reasonableness and proportionality; a cap and contribution that were ultimately incorporated into Law 9544 whose constitutionality they are challenging. He indicates that official letters signed by Mr. Alfredo Jones León, who was the one who made the request to the IICE, are provided, digitally signed and duly certified. He adds that Dr. Cordero Peña, in official letter No. IICE-182-2020 of October 5, 2020, provided his response to the sent official letter, and from reading that document, it is concluded that the IICE did not develop the actuarial-technical analyses that would allow technically grounding the special, solidarity, and redistributive contribution; therefore, adhering to the principles of reasonableness and proportionality, the establishment of the cap and the special, solidarity, and redistributive contribution, incorporated in Law 9544, lacks technical foundation. He adds that, considering that the indicated response needed to be deepened in some aspects for a better understanding of the questions raised, Mr. Alfredo Jones León (one of the petitioners), sent a new official letter to the IICE on October 7, 2020, requesting the expansion of the initially received response. He adds that on October 28, 2020, official letter No. IICE-209-2020 was received from Dr. Cordero Peña, and from the detailed analysis of the content of this communication, the following conclusions are drawn for the Chamber's consideration:

• a)The IICE did not recommend, in the actuarial study it developed, caps or special and solidarity contribution rates to apply to judicial retirements and pensions, not only because no administrative body of the Judicial Branch or the Legislative Assembly requested it, but also because it did not do so ex officio.

It limited itself to informing the Legislative Assembly via official communication IICE-186-2017 of August 18, 2017, that the brackets of the solidarity contribution included in the majority opinion in addition to the ordinary contribution act in favor of the actuarial solvency of the Fund recommended by them (which is logical), but it did not analyze or delve into, using actuarial techniques, whether the ceiling from which the contribution is applied and its brackets have any technical basis.

• b)In the study submitted to the Judicial Branch, the IICE analyzed the actuarial situation of its Retirement Fund as of December 31, 2015, and proposed scenarios to achieve the respective actuarial balance.
• c)The criterion for establishing the maximum ceiling indicated on page 9), point 5 of "Product 5: Results of the Actuarial Balance of current and future participants, under the framework of a new regulatory proposal by the Instituto de Investigaciones en Ciencias Económicas," arose from mutual agreement between the IICE and the administrative bodies of the Judicial Branch; it was not a recommendation from the IICE to the Judicial Branch, nor was it technically defined.
• d)The scale or brackets of the special solidarity and redistributive contribution approved by the Legislative Assembly in Law 9544 were proposed by the Deputies and not by the IICE.
• e)No administrative body of the Judicial Branch, nor any Commission or the Plenary of the Legislative Assembly, requested the IICE to analyze, from an actuarial standpoint, the weight of the special solidarity and redistributive contribution in the actuarial balance it recommended, particularly in scenarios or frameworks IICE_3 and IICE_4 of the actuarial study delivered to the Judicial Branch.
• f)Finally, the IICE does not provide the certification requested for the pages of the actuarial study delivered to the Judicial Branch, where the development of the studies, analyses, formulas, projections, charts, among others, that support the establishment of the ceiling and brackets of the special, solidarity, and redistributive contribution applied to retirement benefits and pensions payable by the Fondo de Jubilaciones y Pensiones del Poder Judicial, should be recorded, because they do not exist.

It adds that, based on the foregoing and from the two communications received from the IICE, it reiterates that they undoubtedly acknowledge that they did not develop the necessary technical studies to serve the Legislative Assembly in substantiating the ceiling and special solidarity and redistributive contribution, now challenged as unconstitutional; furthermore, it points out that they acknowledge that at no time did they technically recommend to any body of the Legislative Assembly the establishment of a ceiling or the brackets of the special, solidarity, and redistributive contribution that were ultimately incorporated into Law 9544. It argues that, therefore, since said law lacks technical studies and is not grounded in the principles of reasonableness and proportionality, in accordance with what this Chamber has developed in its jurisprudence, it becomes unconstitutional. It adds that, as stated in an attached document signed by MBA Miguel Ovares Chavarría, Head of the Macro Proceso Financiero Contable del Poder Judicial, dated October 22, 2020, the Fondo de Jubilaciones y Pensiones del Poder Judicial possessed, as of September 30, 2020, assets of ¢613,076,510,586 (six hundred thirteen billion, seventy-six million, five hundred ten thousand, five hundred eighty-six colones), against which retirement and pension allocations are paid on a biweekly basis. It indicates that the Fund's situation is completely different from that of other retirement and pension systems charged to the national budget, which do not possess a fund to meet their obligations, given that the amounts corresponding to the allocations they must pay month by month are budgeted year by year in the national budget. It points out that, on the other hand, and as stated in the case file, in a brief submitted to the Chamber on May 14, 2020, they requested, according to the arguments presented, the unconstitutionality by connection of Articles 1, 2 subsection d), 4 subsection b), 5, and 7 of Law 9796, which reduced the ceiling of judicial retirement benefits and pensions from 10 to 6 times the lowest salary paid in the Judicial Branch; a new ceiling used to calculate the special, solidarity, and redistributive contribution as of June 20, 2020. It argues that, in turn, by brief of June 2, 2020, they filed the corresponding active joinder to the unconstitutionality action brought by Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L., against Articles 1, 2 subsection d), 4 subsection b), 5, and 7 of the Law to redesign and redistribute the resources of the special, solidarity, and redistributive contribution, -Law number 9796 of December 5, 2019, published in the Official Gazette La Gaceta No. 243 of December 20, 2019, processed under File No. 20-00771 5-0007-CO. It states that, regarding what is relevant in the cited brief, it is important to refer to the section entitled "DE LA INCONSTITUCIONALIDAD POR LA FORMA" (ON UNCONSTITUTIONALITY DUE TO FORM), in which its represented parties set forth the arguments for why they believe Law 9796 is unconstitutional, for lacking technical actuarial studies, failing to comply with the principles of reasonableness and proportionality; on the contrary, it considers that, with the evidence provided - a certification signed by MBA Miguel Ovares Chavarría, Head of the Macro Proceso Financiero Contable del Poder Judicial - it is demonstrated that this concerns a solid Fund, specific to the judicial system, tripartite, and not exclusively charged to the national budget. It argues that, for these reasons, it reiterates the claim raised by its represented parties so that the unconstitutionality of the ceiling and the special, solidarity, and redistributive contribution affecting retirees and pensioners of the Fondo de Jubilaciones y Pensiones Judiciales, which was incorporated into Laws 9544 and 9796, be declared.

201.- In a brief filed with the Secretariat of the Chamber on February 3, 2021, Jorge Luis Morales García appears in his capacity as general secretary and general proxy with judicial and extrajudicial representation of Sindicato de la Judicatura (SINDIJUD), to request prompt dispatch of this unconstitutionality action filed on May 22, 2018. He states that the Sindicato de la Judicatura, SINDIJUD, is a trade union group that includes, among its members, both active Judicial Branch personnel and retirees who, in their time, served as judges of the Republic, hence the collective interest held by the group, representing persons who, due to their age, are classified as older adults. He argues that, of the total 49 plaintiffs, 19 qualify as older adults by age, among whom 3 are deceased, namely: Alfonso Eduardo Chaves Ramírez, deceased August 11, 2019, Eduardo Sancho González on December 16, 2019, and Oscar Luis del Socorro Fonseca Montoya on June 12, 2020. He considers that the unjustified delay in resolving this Unconstitutionality Action is violating fundamental rights of older adults who, by institutional policy, have been defined as requiring privileged and expeditious treatment in handling their matters. He argues that the demands raised in this action relate to essential aspects of life, particularly the economic capacity for the maintenance of older adults, in a stage of life where these resources are vital for meeting the needs for medications and care specific to this age. He acknowledges that the Constitutional Chamber has a large workload, but it must be taken into account that this unconstitutionality action is approaching 3 years since being initiated; even during its processing, a reform to the law challenged here has occurred, meaning the legislative procedure, which is slow and cumbersome, processed a reform to this law and has also processed another reform to the complementary retirement regime that directly affects the interests of the plaintiffs here, whereby the situation of uncertainty generated by the delay in resolving this action makes the future situation of the claimants here very uncertain. He requests that an oral hearing be convened for the issuance of the conclusions of this process and that, as provided in Article 86 of the Ley de la Jurisdicción Constitucional, the judgment be issued within the month following the hearing. He asks that a recent resolution of this same Constitutional Chamber be taken into account, which stated:

"(...) In light of all the foregoing, it is inferred that the Chamber did not observe, in this case, the provisions and principles that must be applied regarding older adults who access the justice administration system, since neither from the report rendered by the Presidency of this Chamber, nor from the procedural history followed by the action and the amparo linked to it, is it possible to infer their implementation in this specific case. On the contrary, what is concluded is that both processes were treated similarly to those normally heard by the Chamber, when the truth is that, as indicated before, when the parties are older adults, as with any population in a state of vulnerability, differentiated treatment is required. The foregoing because it is observed that this Chamber took more than three years to resolve the unconstitutionality action to which the appellant's amparo was linked, which, furthermore, has not yet been resolved, while the Constitutional Chamber did not apply the respective regulations for vulnerable populations, specifically for older adults in the specific case. The delay has occurred both in the resolution of the unconstitutionality action, which already has a final resolution, and in the resolution of the appellant's initial amparo, which still awaits its final resolution" (Sala Constitucional de la Corte Suprema de Justicia, resolution number 20309-2020 of 9 hours on October 22, 2020).

202.- In interlocutory judgment No. 2021-002513 of 9 hours 10 minutes on February 9, 2021, the previous prompt dispatch request was addressed and rejected, reiterating the arguments that, in a similar sense, were set forth in interlocutory resolution No. 2020-015545 of 12 hours 30 minutes on August 20, 2020. Likewise, the request for an oral hearing was rejected as unnecessary given that this action can be analyzed, evaluated, and resolved under evident principles and norms, as well as in the jurisprudence of this Chamber, in addition to the fact that the oral hearing in processes submitted to the knowledge of this Court is optional.

203.- In a brief filed with the Secretariat of the Chamber on February 24, 2021, the plaintiff Mario Alberto Sáenz Rojas appears to point out that this unconstitutionality action has been pending for more than 2 years, for which reason he requires prompt dispatch, considering that the timeframe to define the legal situation of the plaintiffs has become excessive and unreasonable to the detriment of their interests. He indicates that, in his specific case, if the Chamber were to rule in favor of people like him, he could have retired as of June 2020. He points out that he is a chronic patient diagnosed with arterial hypertension, diabetes mellitus, and hypertensive heart disease, which are risk factors in the Covid-19 pandemic and place him in a vulnerable situation regarding the transmission of the SARS-Cov-2 virus since he works attending to users of judicial services. He adds that, in addition to the above, starting in the second half of 2020, a series of laws were approved that have come to directly harm him, such as the new regulations like the ROP, since, if he had been able to retire in June 2020, he would have been given the full amount, but now, if the Chamber rules in his favor, it would be delivered divided into more than 240 monthly installments, bringing his life project to a point of crisis, all without going into detail about the emotional damage he has suffered during this time. He requests that, through the figure of prompt dispatch, this unconstitutionality action be resolved.

204.- In a brief filed with the Secretariat of the Chamber on February 25, 2021, Jorge Luis Morales García appears in his capacity as general secretary and general proxy with judicial and extrajudicial representation of Sindicato de la Judicatura (SINDIJUD), to request revocation of what was resolved by the Chamber at 9 hours 10 minutes on February 9, 2021, specifically regarding the denial to conduct an oral hearing for this matter. He believes that what was resolved on that point does not correspond to the content of Article 10 of the Ley de la Jurisdicción Constitucional, since, in his opinion, this provision is rather the clear, forceful, literal, and specific normative foundation that supports the legitimacy of his represented party's request for the oral hearing. From the reading of that article, he considers that the Constitutional Chamber is compelled by law, in a "necessary" manner, to order the hearing for conclusions that is requested, believing that the hearing would be optional for other matters within the Court's competence, but not in the case of an unconstitutionality action. He requests that, in view of the literal wording of Article 10, the scheduling of the requested hearing be undertaken, in order to comply with due process of law and the right to a hearing that the Chamber itself has indicated is an integral part of due process. He concludes by requesting that the procedure be corrected and what was resolved be revoked, scheduling the hearing requested to issue the conclusions of the case, as provided in Article 10 of the Ley de la Jurisdicción Constitucional.

205.- In interlocutory judgment number 2021-004979 of 9 hours 20 minutes on March 10, 2021, the Constitutional Chamber addressed the prompt dispatch request filed by Mario Alberto Sáenz Rojas and the appeal for revocation filed by Jorge Luis Morales García against the denial to conduct an oral hearing. Regarding the prompt dispatch request, it was ordered to adhere to what was resolved in interlocutory judgment No. 2021-002513 of 9 hours 10 minutes on February 9, 2021. Regarding the appeal for revocation, it was stated that provision 11 of the Ley de la Jurisdicción Constitucional establishes that no appeal shall be admissible against the judgments, orders, or decrees of the Constitutional Jurisdiction, therefore the request is not admissible and is declared unfounded.

206.- By means of documents delivered to the Secretariat of the Chamber on April 21, 2021, Justices Araya García, Salazar Alvarado, and Hernández Gutiérrez, filed a request for recusal from hearing this unconstitutionality action in view of the fact that they claim to be associates of Cooperativa de Ahorro y Crédito de los Servidores Judiciales (COOPEJUDICIAL R.L.), which is an entity that appears as a plaintiff in this unconstitutionality process, therefore they consider that they have an impediment to hear this process. Substitute Justice Hernández Gutiérrez adds that he is also an associate of ACOJUD, which is an association that is a plaintiff in this process, therefore he believes he has another additional ground for recusal.

207.- In a brief filed with the Secretariat of the Chamber on April 21, 2021, Justice Garro Vargas requests that she be recused from hearing this action in view of the fact that her brother, Fabrizio Garro Vargas, is a Superior Labor Judge and therefore contributes to the Régimen de Jubilaciones y Pensiones del Poder Judicial, and is also a member of the Asociación Costarricense de la Judicatura (ACOJUD), which is an organization that appears as a plaintiff in this process. She believes that the foregoing reasons justify her recusal and requests that the case file be sent to the Presidency of the Chamber for the corresponding resolution.

208.- In a resolution at 11 hours 03 minutes on April 21, 2021, the Presidency of the Constitutional Chamber rejected the recusal request raised by Justice Salazar Alvarado and declared him qualified to hear this unconstitutionality action.

209.- By means of a resolution from the Presidency of the Constitutional Chamber at 11 hours 30 minutes on April 21, 2021, the recusal request from Justice Hernández Gutiérrez was rejected, and he is declared qualified to hear this process.

210.- The Presidency of the Constitutional Chamber, in a resolution at 11 hours 58 minutes on April 21, 2021, rejected the recusal request raised by Justice Garro Vargas and declared her qualified to hear this matter.

211.- In a resolution at 12 hours 12 minutes on April 21, 2021, the Presidency of the Constitutional Chamber rejected the recusal request raised by Justice Araya García and declared him qualified to continue hearing this process.

212.- By means of a resolution from the Investigating Justice at 17 hours on April 23, 2021, both the Director and the President of the Board of Directors of the Junta Administradora de Pensiones y Jubilaciones del Poder Judicial were ordered, as evidence for a better resolution, to send to this Court the latest actuarial report conducted on the Fondo de Jubilaciones y Pensiones del Poder Judicial.

213.- In a resolution from the Investigating Justice at 17 hours 05 minutes on April 23, 2021, and as evidence for a better resolution, the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica was requested to inform and clarify to the Chamber whether the "Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial (effective period 2016-2018)" took into consideration the gender variant of the contributing person; otherwise, the reasons for such a decision had to be indicated.

214.- In a brief filed with the Secretariat of the Chamber on April 30, 2021, Juan Andrés Robalino Herrera appears in his capacity as Director of the Instituto de Investigaciones en Ciencias Económicas, to respond to the evidence for a better resolution that was requested of his represented entity. He reports that this Institute prepared the document called: "Producto 6 Informe Final: 'Recopilación E Informe Final: Conclusiones y Recomendaciones' (Versión Final)," as the final report of the project "Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial"; a document that was delivered to the Judicial Branch and can be consulted at the web address of the Judicial Branch page:

https://fjp.poder-judicial.go.cr/index.php/2013-08-08-15-26-57/estudios-actuariales-fondo-de-jubilaciones/category/352-productos. He argues that on page 57 of the aforementioned document, the Compendio Resumen #4 appears, in which the 4 regulatory frameworks developed by the IICE are described; a compendium in which it can be observed that frameworks IICE_3 and IICE_4 propose a difference of 2 years in favor of women in the minimum age requirements for service retirement, so that both framework IICE_3 and framework IICE_4 proved to be solvent from an actuarial standpoint. He adds that in the same Compendio Resumen #4, a difference of 2 years in favor of women in the requirements for ordinary old-age retirement and age retirement is established for framework IICE_1; however, framework IICE_1 proved to be insolvent. He argues that the project "Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial" was developed under a Specific Agreement signed between the Judicial Branch and the Universidad de Costa Rica in February 2016. He states that the First Clause of the Specific Agreement indicates the members of the IICE team, the executive team (counterpart from the Judicial Branch), and the technical-actuarial team (the latter designated by the Judicial Branch to review the documentation delivered by the IICE). For his part, he argues that the executive team was composed of officials from the Judicial Branch and also included representation from the unions of that Branch. He adds that all products delivered by the IICE to the Judicial Branch had the approval of the executive team and the technical-actuarial team; he argues that, in other words, all products, as well as the methodology and approaches used in the preparation of said products, were duly approved by the teams designated by the Judicial Branch to follow up on the project, and in strict compliance with the terms of the Specific Agreement signed between the Judicial Branch and the Universidad de Costa Rica.

215.- In response to the hearing granted as evidence for a better resolution, Arnoldo Hernández Solano appears in his capacity as President of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, by brief filed with the Secretariat of the Chamber on May 6, 2021, and indicates that he provides this Court with the latest actuarial study report conducted on the Fondo de Jubilaciones y Pensiones del Poder Judicial with data from the 2020 period. He highlights that version 4.1 of this report was authorized in session No. 14-2021, article III of March 24, 2021, of that Administrative Board, which was submitted to the Superintendencia de Pensiones on March 25, 2021, via official communication No. 0351-2021. He adds that this report is in the process of final review and authorization of its results, in accordance with the powers that the legislator decided to grant to the Consejo Nacional de Supervisión del Sistema Financiero and the Superintendencia de Pensiones.

216.- In a brief filed with the Secretariat of the Chamber on May 6, 2021, Oslean Vicente Mora Valdez appears in his capacity as Interim Director of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, to indicate that on April 28, through official communication No. 0438-2021, the latest actuarial study conducted on the Fondo de Jubilaciones y Pensiones del Poder Judicial regime with data as of the close of the 2020 period was submitted to the Constitutional Chamber as an annex, thereby complying with the instruction issued by this Court. He argues that said official communication was signed by the President of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial but submitted to the Chamber by him in his capacity as Director of that Board. He points out that there are no additional recapitulations that need to be added to address the evidence requested by this Chamber, therefore the requirement made of his represented entity is satisfied.

217.- The edicts referred to in the second paragraph of Article 81 of the Ley de la Jurisdicción Constitucional were published in numbers 57, 58 and 59 of the Boletín Judicial, of the 21st, 22nd and 25th of March, all of 2019.

218.- The hearing indicated in Articles 10 and 85 of the Ley de la Jurisdicción Constitucional is dispensed with, based on the power granted to the Chamber by provision 9 ibidem, considering this resolution sufficiently grounded in evident principles and norms, as well as in the jurisprudence of this Court.

219.- The legal requirements have been met in the proceedings.

Drafted by Justice Hernández López and Justices Castillo Víquez and Araya García, as indicated in each considering section according to the majority or minority criteria of this judgment; and,

Considering:

PRELIMINARY AND ADMISSIBILITY ASPECTS.

I.- Drafted by Justice Hernández López. Regarding the composition of the Court. - Nine additional unconstitutionality actions (18-007820-000-CO, 18-008202-0007-CO, 18-008267-0007-CO, 18-008292-0007-CO, 18-008591-0007-CO, 18-013217-0007-CO, 18-009275-0007-CO, 18-14168-0007-CO and 19-001720-0007-CO) were consolidated with this unconstitutionality action number 18-007819-0007-CO; likewise, several joinders were accepted, resulting in a total of ten case files. During the processing of the file, different grounds for recusal arose, raised both by the sitting justices and substitute justices, as they are mostly officials or retirees of the Judicial Branch, as well as several requests for recusal. All these procedures were duly processed and resolved by the Presidency of the Constitutional Chamber, as the law indicates, with the Court finally composed to hear this process as follows: 1) Sitting Justice Fernando Castillo Víquez according to resolution of 8 hours 15 minutes on January 22, 2020; 2) Sitting Justice Paul Rueda Leal according to resolution of 8 hours 15 minutes on January 22, 2020; 3) Sitting Justice Nancy Hernández López by resolution of 8 hours 15 minutes on January 22, 2020; 4) Sitting Justice Luis Fernando Salazar Alvarado according to resolution of 12 hours 35 minutes on March 5, 2019; 5) Sitting Justice Jorge Araya García according to resolution of 12 hours 35 minutes on March 5, 2019; 6) Sitting Justice Anamari Garro Vargas according to resolution of 8 hours 44 minutes on June 2, 2020 and; 7) Substitute Justice José Paulino Hernández Gutiérrez according to resolution of 8 hours 16 minutes on February 13, 2019. Thus, with the Chamber duly constituted to hear this unconstitutionality action, it proceeds to take up and analyze the claims filed.

II.- Drafted by Justice Hernández López.

Regarding the amicus curiae briefs filed.—In a resolution of the Presidency of the Chamber at 9:31 a.m. on May 10, 2019, the amicus curiae briefs filed with the Secretariat of the Tribunal between April 1 and 12, 2019—within the period provided by law—were admitted on behalf of the following persons who so requested: CRISIAM DIONISIA WONG VEGA, identity card number 0107420019, ENRIQUETA ROJAS AGUILAR, identity card number 0502230794, LIGIA VANESSA VÍQUEZ GÓMEZ, identity card number 0108240057, ZULAY MARJORIE CAMPOS HERNÁNDEZ, identity card number 0108360391, LUIS ROBERTO MADRIGAL ZAMORA, identity card number 0107230460, in his capacity as SECRETARIO GENERAL DEL SINDICATO DE LA DEFENSA PÚBLICA, and KAROL MARÍA MONGE MOLINA, identity card number 0110710254, in her capacity as special judicial representative (apoderada especial judicial) of ADALGISA GUILLEN FLORES, holder of identity card number 5-0210-0201, ADOLFO SOTO MUÑOZ, holder of identity card number 3-0300-0050, ADRIÁN ARROYO ACOSTA, holder of identity card 1-0903-0887, ADRIÁN COTO PEREIRA, holder of identity card 3-0307-0351, ADRIÁN RODOLFO BARQUERO MONGE, holder of identity card 3-0339-0441, ADRIANA ÁLVAREZ BRICEÑO, holder of identity card 1-0639-0343, ADRIANA SOTO GONZÁLEZ, holder of identity card 1-0844-0124, ADRIANA STELLER HERNÁNDEZ, holder of identity card 1-0803-0253, ALBA BARRIOS SALDAÑA, holder of identity card 7-0103-0498, ALBERTH SOLANO ABARCA, holder of identity card 1-0762-0577, ALBERTO MORA MORA, holder of identity card 1-1023-0353, ALCIONI VÁSQUEZ RETANA, holder of identity card 1-0643-0891, ALEJANDRA PÉREZ CORDERO, holder of identity card 1-1030-0994, ALEJANDRO ALCIONE CASTRO LAO, holder of identity card 1-0836-0068, ALEJANDRO FONSECA ARGUEDAS, holder of identity card 1-0771-0399, ALEJANDRO SOLANO ROJAS, holder of identity card 1-0519-0729, ALEXANDER MIGUEL FONSECA PRADO, identity card number 1-0779-0738, ALEXANDER PICADO GAMBOA, holder of identity card 1-0935-0908, ALEXANDER TENORIO CAMPOS, holder of identity card 5-0202-0075, ALEXANDER VIACHICA ESPINOZA, holder of identity card 1-0777-0115, ALEXANDRA MADRÍZ SEQUEIRA, holder of identity card 1-0870-0450, ALEXANDRA MORA STELLER, holder of identity card 2-0485-0404, ALEXANDRA VILLEGAS VELÁZQUEZ, holder of identity card 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, holder of identity card 7-0103-0253, ALEYDA MOJICA MARÍN, holder of identity card 6-0229-0409, ALFREDO SALAZAR VENEGAS, holder of identity card 1-0867-0065, ALICIA MELÉNDEZ LEIVA, holder of identity card 5-0238-0070, ALLAN CRUZ VILLALOBOS, holder of identity card 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, holder of identity card 2-0443-0555, ALMA CUNNINGHAM ARANA, holder of identity card 7-0066-0882, ALONSO ROMERO FALLAS, holder of identity card 1-0860-0327, ÁLVARO ÁLVAREZ GUTIÉRREZ, holder of identity card 5-0234-0995, ÁLVARO ENRIQUE GONZÁLEZ QUIRÓS, holder of identity card 3-0334-0081, ÁLVARO JUSTO QUIRÓS SÁNCHEZ, holder of identity card 1-0669-0209, ÁLVARO ORTUÑO MÉNDEZ, holder of identity card 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, holder of identity card 1-0828-0553, ANA CRISTINA LIZANO RODRÍGUEZ, holder of identity card 1-0693-0522, ANA ISABEL MOYA CHACÓN, holder of identity card 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, holder of identity card 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, holder of identity card 5-0248-0978, ANA PATRICIA ROBLES MARTÍNEZ, holder of identity card 7-0102-0421, ANA RUTH ORTEGA CHAVARRÍA, holder of identity card 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, holder of identity card 1-0745-0116, ANA SONIA FUENTES GÓMEZ, holder of identity card 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, holder of identity card 2-0496-0746, ANAIS CAROLINA BOLAÑOS ZELEDÓN, holder of identity card 1-0902-0620, ANAYANCI RODRÍGUEZ QUESADA, holder of identity card 1-0734-0966, ANDREA SOTO DÍAZ, holder of identity card 4-0161-0797, ANDRÉS MÉNDEZ BONILLA, holder of identity card 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, holder of identity card 1-0779-0938, ÁNGELA ROBLES SIBAJA, holder of identity card 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNÁNDEZ, holder of identity card 7-0107-0369, ARMANDO AGÜERO ARAYA, holder of identity card 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, holder of identity card 3-0325-0085, ARMANDO EMILIO JIMÉNEZ VARGAS, holder of identity card 6-0233-0378, ARSENIO MORA BARBOZA, holder of identity card 1-0850-0664, ARTURO FAERRON MONTOYA, holder of identity card 5-0247-0765, AURA YANES QUINTANA, holder of identity card 6-0209-0198, AUREA BARBOZA CASTILLO, holder of identity card 5-0233-0938, BERNY VALVERDE JIMÉNEZ, holder of identity card 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, holder of identity card 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, holder of identity card 1-0747-0521, BONN1E PATRICIA TORRES ROSALES, holder of identity card 1-0750-0985, BRENDA ALPÍZAR JARA, holder of identity card 1-0752-0082, CARLOS ABRAHAM CAMPBELL, holder of identity card 7-0098-0511, CARLOS AGUILAR ORTIZ, holder of identity card 1-0706-0717, CARLOS ALBERTO CHACÓN CHINCHILLA, holder of identity card 1-0865-0136, CARLOS ALBERTO QUESADA HERNÁNDEZ, holder of identity card 7-0077-0276, CARLOS ARNOLDO BERMÚDEZ AGUILAR, holder of identity card 1-0915-0817, CARLOS BERMÚDEZ CHAVES, holder of identity card 1-0880-0378, CARLOS ENRIQUE TORRES ACUÑA, holder of identity card 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, holder of identity card 1-0748-0121, CARLOS FALLAS Solís, holder of identity card 1-0851-0582, CARLOS GONZÁLEZ MARTÍNEZ, holder of identity card 3-0279-0596, CARLOS HUMBERTO HERRERA SOLÍS, holder of identity card 1-0837-0484, CARLOS LUIS CORRALES JIMÉNEZ, holder of identity card 2-0428-0157, CARLOS LUIS FRUTOS VÁSQUEZ, holder of identity card 6-0157-0030, CARLOS LUIS GARCÍA APARICIO, holder of identity card 1-0860-0752, CARLOS LUIS GUTIÉRREZ BARQUERO, holder of identity card 6-0164-0434, CARLOS LUÍS VÁSQUEZ MEDINA, holder of identity card 7-0086-0146, CARLOS MONGE NAVARRO, holder of identity card 6-0251-0166, CARLOS PORRAS MORERA, holder of identity card 5-0247-0389, CARLOS VENEGAS AVILES, holder of identity card 1-0899-0725, CARLOS ALBERTO PÁEZ RODRÍGUEZ, holder of identity card 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, holder of identity card 1-0903-553, CARMELINA TAYLOR TAYLOR, holder of identity card 7-0068-0562, CAROLINA CHACÓN MEJÍA, holder of identity card 1-0741-0425, CATALINA ESPINOZA SÁENZ, holder of identity card 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, holder of identity card 6-0198-0289, CINTHIA MAGALY VEGA CÉSPEDES, holder of identity card 4-0161-0385, CHIREY TAPIA MARTINEZ, holder of identity card 1-0912-0363, CRISTIAN CORRALES RODRÍGUEZ, holder of identity card 2-0473-0323, CRISTIAN GÓMEZ SOLÍS, holder of identity card 3-0333-0388, CRUZ PORRAS BOLAÑOS, holder of identity card 5-0213-0606, DANIA ARIAS SANDOVAL, holder of identity card 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, holder of identity card 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, holder of identity card 1-0820-0013, DÉBORA RIVERA ROMERO, holder of identity card 1-0702-0210, DELIA BAYLEY BLAKE, holder of identity card 7-0106-0462, DENIA ZÚÑIGA ROSALES, holder of identity card 5-0255-0075, DENNIS MADRIGAL QUESADA, holder of identity card 1-0772-0406, DERRIL VILLEGAS SALAZAR, holder of identity card 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, holder of identity card 1-0844-0663, DIDIER JOSÉ MONTEALEGRE BEJARANO, holder of identity card 1-0998-0884, DIEGO RODRÍGUEZ ZUMBADO, holder of identity card 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, holder of identity card 2-0403-0367, DINORAH FLORES VILLALOBOS, holder of identity card 1-0762-0614, DIXON LI MORALES, holder of identity card 1-0839-0369, DONALDO BERMÚDEZ RODRÍGUEZ, holder of identity card 6-0260-553, DONY DANIEL SOLANO ARAYA, 6-0270-0431, DORIS ROJAS GUZMÁN, holder of identity card 1-0760-0176, DYALA LINKIMER VALVERDE, holder of identity card 2-0394-0312, EDDIE JOSÉ DÍAZ SOLÓRZANO, holder of identity card 5-0202-0075, EDDY JAVIER RODA ABARCA, holder of identity card 1-0607-0953, EDGAR GERARDO MORA ROMERO, holder of identity card 5-0294-0965, EDUARDO BRICEÑO CABALCETA, holder of identity card 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, holder of identity card 1-738-0392, EDUARDO FALLAS BRENES, holder of identity card 1-0588-0355, EDUARDO GÓMEZ VARGAS, holder of identity card 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, holder of identity card 8-0066-0926, EDUARDO MOYA ROJAS, holder of identity card 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, holder of identity card 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, holder of identity card 2-0484-0865, EDWIN HERRERA CAMBRONERO, holder of identity card 1-0578-0466, EDWIN MATA ELIZONDO, holder of identity card 1-0801-0067, EIBOR PANIAGUA MARÍN, holder of identity card 3-0323-0494, EIDY ARAYA DÍAZ, holder of identity card 7-0080-0880, ELIAS APU VARGAS, holder of identity card 7-0088-0345, ELISANDRO TREJOS CHÁVES, holder of identity card 1-0871-0722, ELIZABETH BOLAÑOS MENA, holder of identity card 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, holder of identity card 2-0505-0891, ELMER ORTIZ OBANDO, holder of identity card 2-0513-0201, ELPIDIO CALDERÓN CHAVES, holder of identity card 6-0211-0169, ELVÍN VARGAS SALAZAR, holder of identity card 6-0164-0923, EMILCE MILEIDY GARCÍA SOLANO, holder of identity card 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, holder of identity card 1-0905-0693, EMMA LÓPEZ RAMÍREZ, holder of identity card 6-0300-0418, ERICK ANTONIO MORA LEÍVA, holder of identity card 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, holder of identity card 1-0990-0489, ERICK CASTRO ZAMORA, holder of identity card 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, holder of identity card 1-0617-0454, ERICK LEWIS HERNÁNDEZ, holder of identity card 4-0157-0803, ERICK RODRÍGUEZ MORA, holder of identity card 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, holder of identity card 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, holder of identity card 1-0921-0625, ERIKA LEIVA DÍAZ, holder of identity card 1-0905-0024, ERIKA MORALES CUBILLO, holder of identity card 1-0885-0266, ERIKA VILLALOBOS SOLANO, holder of identity card 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, holder of identity card 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, holder of identity card 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, holder of identity card 6-0237-0005, ESTHER JIMÉNEZ AVILÉS, holder of identity card 1-0835-0109, EUGENIA ARIAS QUESADA, holder of identity card 3-0287-0420, EUNICE OBANDO SOLANO, holder of identity card 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, holder of identity card 1-0377-0039, EVERALDO ALFARO FERLINI, holder of identity card 1-0771-0854, EZEQUIEL ÁLVAREZ CABEZAS, holder of identity card 1-1046-0548, FABIÁN GORDIANO MONTERO MONTERO, holder of identity card 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, holder of identity card 1-0822-0756, FIORELLA PÉREZ FONSECA, holder of identity card 5-0300-0115, FLOR BRENES HERNÁNDEZ, holder of identity card 1-0886-0825, FLOR MARÍA MURILLO VINDAS, holder of identity card 2-0458-0802, FLORA MARÍA CORDERO ROJAS, holder of identity card 6-0225-0890, FLORIBEL CAMPOS SOLANO, holder of identity card 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, holder of identity card 2-0497-0271, FLORIBETH PALACIOS ALVARADO, holder of identity card 6-0221-0749, FLOR Y ROCÍO CAMPOS SANDOVAL, holder of identity card 2-0414-0476, FRANCINI DELGADO LEÓN, holder of identity card 4-0168-0486, FRANCISCO JOSÉ BONILLA GUZMÁN, holder of identity card 1-0640-0491, FRANCISCO MURILLO ZÚÑIGA, holder of identity card 1-0602-0162, FRANÇOISE RODRÍGUEZ CORONADO, holder of identity card 1-0944-0235, FRANK GARCÍA MORAGA, holder of identity card 5-0298-0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, holder of identity card 1-0900-0131, FRANZ EDUARDO VEGA ZÚÑIGA, holder of identity card 3-0292-0396, FRESSIA REVELES GÓMEZ, holder of identity card 1-0922-0486, GABRIEL BARRANTES PALAFOX, holder of identity card 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, holder of identity card 1-0725-0918, GAUDY AGUILAR ALFARO, holder of identity card 1-0935-0817, GERARDO ALVARADO CHAVES, holder of identity card 2-0378-0401, GERARDO CERVANTES FONSECA, holder of identity card 3-0278-0929, GERARDO SÁNCHEZ RIVERA, holder of identity card 1-0741-0686, GERMAN ESQUIVEL CAMPOS, holder of identity card 1-0965-0647, GIAN JAVIER MUIR YOWNG, holder of identity card 3-0300-0955, GILBERTO MORA MOLINA, holder of identity card 2-0534-0866, GINA RAMÓN FERNÁNDEZ, holder of identity card 1-0791-0967, GINETHE RETANA UREÑA, holder of identity card 1-0765-0153, GINNETH DURÁN CORRALES, holder of identity card 1-0689-0187, GINNETTE AMADOR GODOY, holder of identity card 8-0051-0937, GIOVANNY GONZÁLEZ HERNÁNDEZ, holder of identity card 1-0956-0895, GISELLE GUTIÉRREZ SOTO, holder of identity card 2-0408-0809, GISELLE ROJAS ROJAS, holder of identity card 2-0507-0474, GLADYS NÜÑEZ RIVAS, holder of identity card 5-0185-0742, GLORIA ESTELA ÁNGULO SMITH, holder of identity card 1-0728-0619, GREIVIN HERNÁNDEZ CÓRDOBA, holder of identity card 2-0445-0438, GUADALUPE VEGA SEQUEIRA, holder of identity card 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, holder of identity card 1-0760-0343, GUILLERMO ROSALES MORA, holder of identity card 1-0731-0037, GUILLERMO VALVERDE MONGE, holder of identity card 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, holder of identity card 6-0222-0170, GUSTAVO RODRÍGUEZ TENCIO, holder of identity card 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, holder of identity card 7-0075-0104, HANNIA VANESSA RAMÍREZ PICADO, holder of identity card 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, holder of identity card 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, holder of identity card 5-0242-0405, HAZEL ALFARO GONZÁLEZ, holder of identity card 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, holder of identity card 1-0869-0832, HÉCTOR SANTAMARÍA VÍQUEZ, holder of identity card 1-0908-0937, HEIDY ARAYA PINEDA, holder of identity card 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, holder of identity card 1-0819-0354, HELLEN VANESSA ARIAS FATJÓ, holder of identity card 1-0788-0682, HENRY CAMACHO ESQUIVEL, holder of identity card 4-0156-0291, HENRY MOODIE FEDRICK, holder of identity card 7-0112-0315, HENRY TIJERINO ESPINOZA, holder of identity card 5-0250-0209, HERNÁN VÁSQUEZ CASTAÑEDA, holder of identity card 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, holder of identity card 1-0826-0702, IGNACIO GERARDO LÉPIZ SALAZAR, holder of identity card 4-0164-0654, ILEANA MARÍA LEAL ZÚÑIGA, holder of identity card 6-0196-0131, ILSE MARÍA GONZÁLEZ DOSMAN, holder of identity card 6-0240-0588, INDIRA ALFARO CASTILLO, holder of identity card 2-0462-0902, INEL GIBBONS GÓMEZ, holder of identity card 7-0109-0072, INGRID ÁNGULO SÁNCHEZ, holder of identity card 5-0285-0560, INGRID ARAYA LEANDRO, holder of identity card 1-0949-0945, INGRID SANÓU KARLSON, holder of identity card 1-0593-0629, INOCENCIO GÓMEZ OBANDO, holder of identity card 5-0186-0272, IRENE BLANCO MORALES, holder of identity card 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, holder of identity card 1-0635-0364, IVÁN GRANADOS BARQUERO, holder of identity card 3-0325-0944, IVÁN PÉREZ PÉREZ, holder of identity card 7-0087-0308, IVANNIA AGUILAR ARRIETA, holder of identity card 1-0823-0346, IVANNIA MEDINA RAMÍREZ, holder of identity card 1-0911-0387, IVANNIA PATRICIA MORALES LÓPEZ, holder of identity card 1-0879-0108, IVANNIA VALERIO VILLALOBOS, holder of identity card 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, holder of identity card 1-0841-0091, IVETH LORENA DUARTE CERDAS, holder of identity card 1-0877-0005, IVETH TORRES GONZÁLEZ, holder of identity card 5-0235-0765, IVONNE VALVERDE SANABRIA, holder of identity card 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, holder of identity card 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, holder of identity card 5-0308-0930, JAVIER ALFARO VALERIO, holder of identity card 1-0660-0072, JAVIER FRANCISCO DELGADO CARAZO, holder of identity card 5-0257-0789, JAVIER QUESADA QUESADA, holder of identity card 1-0739-0219, JAVIER VINDAS ROCHA, holder of identity card 1-0749-0307, JEANNETTE BARBOZA CASCANTE, holder of identity card 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, holder of identity card 1-0910-0476, JENNIFER STEPHENSON STERLING, holder of identity card 7-0096-0630, JENNY ARCE CÓRDOBA, holder of identity card 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, holder of identity card 3-0313-0291, JENNY NÚÑEZ SALAZAR, holder of identity card 6-0280-0719, JEREMY EDUARTE ALEMÁN, holder of identity card 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, holder of identity card 1-0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, holder of identity card 1-0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, holder of identity card 1-0881-0675, JHONNY ALFARO NAVARRETE, holder of identity card 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, holder of identity card 1-0787-0155, JOHANNA CHAVES LEÓN, holder of identity card 1-0897-0130, JOHN PALADINO JIMÉNEZ, holder of identity card 1-0941-0472, JOHNNY ÁLVAREZ SANDÍ, holder of identity card 7-0078-0010, JONATHAN GAMBOA VALLADARES, holder of identity card 2-0495-0512, JONATHAN GOÑI CHAVES, holder of identity card 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, holder of identity card 1-0973-0613, JORGE AGUILAR PÉREZ, holder of identity card 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, holder of identity card 1-0753-0847, JORGE ANTONIO CHACÓN COREA, holder of identity card 1-0762-0236, JORGE CONTRERAS LACAYO, holder of identity card 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, holder of identity card 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, holder of identity card 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, holder of identity card 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, holder of identity card 1-0612-0417, JORGE MARIO ROJAS MEJIAS, holder of identity card 2-0500-0326, JORGE ROBLES ZÚÑIGA, holder of identity card 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, holder of identity card number 1-0778-0897, JOSÉ EFRAÍN SANDERS QUESADA, holder of identity card 1-0740-0038, JOSÉ ALBERTO RIVERA OLIVARES, holder of identity card 1-0793-0076, JOSÉ ALEXANDER MORA GARCÍA, holder of identity card 1-0706-0010, JOSÉ ALONSO RODRÍGUEZ VARGAS, holder of identity card 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACÓN, holder of identity card 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, holder of identity card 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, holder of identity card 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, holder of identity card 1-0670-0201, JOSÉ GILBERTO ROJAS CHACÓN, holder of identity card 1-0684-0910, JOSÉ LUIS BADILLA CUADRA, holder of identity card 2-0449-0004, JOSÉ LUIS BENAVIDES UMAÑA, holder of identity card 1-0714-0628, JOSÉ LUIS PERAZA ÁLVAREZ, holder of identity card 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, holder of identity card 1-0873-0458, JOSÉ MAURICIO FONSECA UMAÑA, holder of identity card 1-0921-028, JOSÉ RAFAEL ROJAS LÓPEZ, holder of identity card 1-0772-0917, JOSÉ RAMÓN HIDALGO HIDALGO, holder of identity card 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMÍREZ, holder of identity card 3-320-980, JOSÉ RUBÉN DIMAS PORTILLO, holder of identity card 7-0070-0864, JUAN CARLOS ARIAS AGUILAR, holder of identity card 1-0408-0344, JUAN CARLOS CAMPOS MARÍN, holder of identity card 1-0838-0041, JUAN CARLOS LEAL VEGA, holder of identity card 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, holder of identity card 2-0448-0967, JUAN CARLOS QUESADA QUESADA, holder of identity card 1-0796-0215, JUAN CARLOS SALAS VARELA, holder of identity card 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, holder of identity card 1-0922-0112, JUAN JOSÉ ACUÑA PASTRANA, holder of identity card 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, holder of identity card 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, holder of identity card 2-0486-0526, JUAN LUIS SÁNCHEZ ALVARADO, holder of identity card 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, holder of identity card 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, holder of identity card 5-0215-0175, KAREN JACKELYN THOMAS SMITH, holder of identity card 7-0096-0607, KARIN AGUILAR MOLINARI, holder of identity card 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, holder of identity card 1-0910-0203, KARLA SANCHO VARGAS, holder of identity card 1-0779-0289, KAROLINA RIVERA ESPINOZA, holder of identity card 2-0514-0769, KATTIA CAMPOS ZÚÑIGA, holder of identity card 1-0707-0725, KATTIA CORDERO SOLANO, holder of identity card 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, holder of identity card 1-0984-0078, KATTIA MARÍA VARGAS PÉREZ, holder of identity card 1-0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, holder of identity card 1-0646-0777, KATTIA MORALES NAVARRO, holder of identity card 1-0801-0141, KATTIA SABORÍO CHAVERRI, holder of identity card 2-0453-0781, KATTIA CECILIA MARÍN MIRANDA, holder of identity card 1-0784-0554, KATTIA VARGAS SALAS, holder of identity card 1-0793-0718, KATTYA MERCEDES MONGE PACHECO, holder of identity card 3-0337-0036, KRISIA FUMERO ARAYA, holder of identity card 1-0324-0912, LAURA PATRICIA CHACÓN MORA, holder of identity card 1-0708-0472, LEDA GINETTE SOLANO BARRA, holder of identity card 6-0166-0755, LEONARDO BRENES GÓMEZ, holder of identity card 1-0921-0927, LIDIA ISABEL VÁSQUEZ VALLEJOS, holder of identity card 5-0265-0923, LIGIA CASTILLO CASTILLO, holder of identity card 1-0344-0861, LILLIAM MARÍA GARITA SHARPE, holder of identity card 7-0074-0805, LILLIANA ROJAS MORA, holder of identity card 7-0111-0674, LILLIANA SABORÍO SABORÍO, holder of identity card 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, holder of identity card 2-0497-0272, LIZETH BARAHONA CASTILLO, holder of identity card 7-0097-0842, LIZETH ROGERS ROGERS, holder of identity card 7-0101-0960, LIZETTE BRENES ARCE, holder of identity card 1-0715-0167, LIZZETH CRUZ TORRES, holder of identity card 1-0615-0237, LORELEY CERDAS ÁVILA, holder of identity card 1-0723-0311, LORENA RODRÍGUEZ SALAS, holder of identity card 1-0744-0409, LOURDES ANGULO JIMÉNEZ, holder of identity card 5-0257-0944, LUCRECIA ROJAS ROJAS, holder of identity card 3-0272-0321, LUIS ÁLVAREZ VINDAS, holder of identity card 2-0417-0295, LUIS ÁNGEL MATAMOROS ARIAS, holder of identity card 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, holder of identity card 1-0793-0256, LUÍS DIEGO CHAVARRÍA GARCÍA, holder of identity card 1-0948-0118, LUIS DIEGO ZARATE MORALES, holder of identity card 1-0993-0395, LUIS ENRIQUE ARROYO ACUÑA, holder of identity card 1-0626-0336, LUIS ENRIQUE LEÓN RODRÍGUEZ, holder of identity card 5-0313-0263, LUIS FALLAS PIVA, holder of identity card 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, holder of identity card 1-0884-0317, LUIS FERNANDO RODRÍGUEZ ARTAVIA, holder of identity card 2-0467-0324, LUIS FERNANDO SOLÍS VILLEGAS, holder of identity card 1-0576-0916, LUIS FERNANDO SUÁREZ JIMÉNEZ, holder of identity card 1-0738-0178, LUÍS GERARDO MARTÍNEZ GARCÍA, holder of identity card 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, holder of identity card 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, holder of identity card 1-0784-0409, LUIS GUILLERMO COTO QUESADA, holder of identity card 3-0242-0147, LUÍS GUILLERMO VÁSQUEZ UREÑA, holder of identity card 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, holder of identity card 5-0240-0795, LUÍS MANUEL RAMÍREZ SOLÍS, holder of identity card number 2-0435-0895, LUIS MATAMOROS CARVAJAL, holder of identity card 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, holder of identity card 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, holder of identity card 1-0802-0480, LUIS RODRIGO GUTIÉRREZ ARGUEDAS, holder of identity card 1-0940-0199, LUIS RODRÍGUEZ CRUZ, holder of identity card 7-0090-0234, LUIS VÁSQUEZ VALLEJOS, holder of identity card 5-0247-0313, MAGALIE VARGAS JOHNSON, holder of identity card 7-0090-0188, MALCO MONTOYA RAMÍREZ, holder of identity card 5-0262-0199, MANFRED QUESADA SÁNCHEZ, holder of identity card 6-0268-0546, MANUEL ALEJANDRO TORRES CASTRO, holder of identity card 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, holder of identity card 1-0708-0291, MANUEL ERNESTO DURÁN CASTRO, holder of identity card 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, holder of identity card 6-0231-0761, MANUEL OREAMUNO ZEPEDA, holder of identity card 1-0859-0237, MANRIQUE MORALES MONTIEL, holder of identity card 6-0271-0224, MARCELA ZUÑIGA JIMÉNEZ, holder of identity card 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, holder of identity card 1-0518-0695, MARCO ANTONIO CARRIÓN HERNÁNDEZ, holder of identity card 1-0817-0932, MARCO ANTONIO HERRERA CHARRAUN, holder of identity card 1-0870-0028, MARCO BADILLA BERMÚDEZ, holder of identity card 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, holder of identity card 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, holder of identity card 1-0801-0273, MARCO VINICIO PORRAS MORALES, holder of identity card 2-0429-0412, MARCO VINICIO RODRÍGUEZ ARAGÓN, holder of identity card 2-0485-0423, MARCONY ARBUROLA VALVERDE, holder of identity card 5-0246-0169, MARGARITA CERDAS VEGA, holder of identity card 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELÁSQUEZ, holder of identity card 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, holder of identity card 1-0968-0625, MARÍA AUXILIADORA SOTO RIVERA, holder of identity card 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, holder of identity card 1-0539-0560, MARÍA DE LA CRUZ ARROYO BRAVO, holder of identity card 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRÍGUEZ, holder of identity card 1-0700-0492, MARÍA DE LOS ÁNGELES CHAVES VARGAS, holder of identity card 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, holder of identity card 5-0248-0031, MARÍA DEL CARMEN VÁSQUEZ VALLEJOS, holder of identity card 5-0233-0377, MARÍA ELENA MOLINA SABORÍO, holder of identity card 6- n\n0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, bearer of identity card 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ, bearer of identity card 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, bearer of identity card 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, bearer of identity card 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, bearer of identity card 3-0274- 0283, MARÍA MARGOTH CASTRO SALAZAR, bearer of identity card 2-0454- 0319, MARÍA MARITZA PIZARRO COREA, bearer of identity card 5-02825- 0080, MARÍA TERESA BENAVIDES ARGUELLO, bearer of identity card 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, bearer of identity card 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, bearer of identity card 1-0820-0799, MARIANO RODRÍGUEZ FLORES, bearer of identity card 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, bearer of identity card 7-0120-0576, MARIO ANGULO SALAZAR, bearer of identity card 1-1014-0171, MARIO MIRANDA DE LA O, bearer of identity card 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, bearer of identity card 5-0241-0198, MARITZA VALVERDE CORDERO, bearer of identity card 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, bearer of identity card 1-0604-0812, MARJORIE SANABRIA ROJAS, bearer of identity card 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, bearer of identity card 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, bearer of identity card 1-0607-0484, MARLENY RAMÍREZ GAMBOA, bearer of identity card 4-0150-0093, MARLON ARIAS QUIRÓS, bearer of identity card 1-0120-0929, MARLYN CASTRO ALVARADO, bearer of identity card 9-0076-0447, MARLYN ELENA QUESADA QUESADA, bearer of identity card 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, bearer of identity card 1-0692- 0673, MARTÍN HERNÁNDEZ SERRANO, bearer of identity card 1-0726-0721, MARVIN ÁNGULO DÍAZ, bearer of identity card 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, bearer of identity card 3-0258-0595, MAUREEN BOLAÑOS ROJAS, bearer of identity card 1-0784-0631, MAUREEN SILES MATA, bearer of identity card 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, bearer of identity card 1-1003-0126, MAUREEN IONG UREÑA, bearer of identity card 1-0815-0990, MAUREN VENEGAS MÉNDEZ, bearer of identity card 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, bearer of identity card 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, bearer of identity card 1-0783-0049, MAURICIO RETANA GONZÁLEZ, bearer of identity card 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, bearer of identity card 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, bearer of identity card 7-0087-0424, MAYRA GISELLA GONZÁLEZ, SÁNCHEZ, bearer of identity card 1-0567-0766, MELANIA GÓMEZ ACUÑA, bearer of identity card 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, bearer of identity card 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, bearer of identity card 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, bearer of identity card 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, bearer of identity card 7-0072-0678, MIGUEL OVARES CHAVARRÍA, bearer of identity card 1-1006-0605, MINOR ANCHÍA VARGAS, bearer of identity card 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, bearer of identity card 6-0217-0066, MINOR MONGE CAMACHO, bearer of identity card 1-0676-0442, MINOR RIVAS TORRENTES, bearer of identity card 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, bearer of identity card 3-0316-0212, MIXCY CHAVES MENDOZA, bearer of identity card 5-0309-0547, MOISÉS ALVARADO CHACÓN, bearer of identity card 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, bearer of identity card 5-0247-0582, NATACHA PIZARRO SOTO, bearer of identity card 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, bearer of identity card 2-0443-0931, NELSON PÉREZ GUADAMUZ, bearer of identity card, 1-0901-0416, NIDIA CASTRO CONEJO, bearer of identity card 1-0776-0726, NILLS ROJAS JARA, bearer of identity card 7-0102-0481, NUBIA AGUILAR CAMACHO, bearer of identity card 1 -0582-0179, NURIA QUESADA ZAMORA, bearer of identity card 1-0619-0414, OLDEMAR CERDAS JUÁREZ, bearer of identity card 5-0252-0491, OLGA MURILLO ESPINOZA, bearer of identity card 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, bearer of identity card 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, bearer of identity card 2-0459-0740, OMAR BRENES CAMPOS, bearer of identity card 1-0889-0754, ORLANDO CASTRILLO VARGAS, bearer of identity card 1-0730-0335, OSBALDO ROSALES CHACÓN, bearer of identity card 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, bearer of identity card 4-0154-0227, OSVALDO LÓPEZ MORA, bearer of identity card 1- 0926-0995, OSVALDO RODRÍGUEZ FLORES, bearer of identity card 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, bearer of identity card 3-0301-0666, PABLO MACEO SOTO, bearer of identity card 7-0112-0501, PABLO ROLDÁN UMAÑA, bearer of identity card 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, bearer of identity card 4- 0161-0248, PATRICIA FALLAS MELÉNDEZ, bearer of identity card 1-0660- 0570, PATRICIA RIVERA SANDOVAL, bearer of identity card 1-0782- 0780, PATRICIA WO CHINO MOK, bearer of identity card 7-0094- 0757, PAULO HUMBERTO MENA QUESADA, bearer of identity card 3-0331 -0109, PEDRO ARCE GONZÁLEZ, bearer of identity card 2-0385-0931, PEDRO BONILLA PICADO, bearer of identity card 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, bearer of identity card 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, bearer of identity card 2-0490-0234, RAFAEL DAVID VEGA SEGURA, bearer of identity card 1-0791-0159, RAFAEL NAVARRETE BRENES, bearer of identity card 7-0104-0669, RAFAEL UREÑA BARRIOS, bearer of identity card 1-0915-0224, RAMÓN ANGULO ROLDÁN, bearer of identity card 1-0554-0410, RANDALL RODRÍGUEZ ULATE, bearer of identity card 1-0783-0793, RANDY MARTÍN TREJOS MORALES, bearer of identity card 1-0758-0892, RAQUEL RAMÍREZ BONILLA, bearer of identity card 1-0997-0349, RASHID BEIRUTE GRANADOS, bearer of identity card 5-0243- 0570, RAYVAN MC LEOD BÍGSBY, bearer of identity card 7-0132- 0768, REBECA GUARDIA MORALES, bearer of identity card 1-0808-0973, REBECCA ARTAVIA BRUNO, bearer of identity card 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, bearer of identity card 1-0548-0407, RICARDO CALDERÓN VALVERDE, bearer of identity card 9-0098-0557, RICARDO GARCÍA MOLINA, bearer of identity card 4-0170-0018, RITA CASTRO ABARCA, bearer of identity card 2-0456- 0750, RITA MARÍA QUIRÓS OBANDO, bearer of identity card 1-0758- 0598, ROBERTO CARLOS PÉREZ VARGAS, bearer of identity card 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, bearer of identity card 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, bearer of identity card 1-0813-0303, ROCÍO PICADO VARGAS, bearer of identity card 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, bearer of identity card, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, bearer of identity card 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, bearer of identity card 1-0706-0332, RODRIGO CASTRO SOLÍS, bearer of identity card 7-0101-0028, RODRIGO CHAVES CALVO, bearer of identity card 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, bearer of identity card 1-0903-0505, ROELIS REYES PICHARDO, bearer of identity card 5-0273-0355, ROGER JIMÉNEZ FAJARDO, bearer of identity card 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, bearer of identity card 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, bearer of identity card 1-0538-0903, RONALD SOLÍS JIMÉNEZ, bearer of identity card 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, bearer of identity card 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, bearer of identity card 4-0125-0931, ROSE MARY LAWRENCE MORA, bearer of identity card 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, bearer of identity card 1-0852-0854, ROSIBEL BRENES ALVARADO, bearer of identity card 4-0162-0518, ROSIBEL BRENES REYES, bearer of identity card 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, bearer of identity card 1-0698-0291, ROXANA GÓMEZ BARQUERO, bearer of identity card 9-0075-0148, ROXANA HIDALGO VEGA, bearer of identity card 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, bearer of identity card 1-0652-0137, ROXANA MESÉN FONSECA, bearer of identity card 1-0850-0833, ROY FERNANDO VARGAS NARANJO, bearer of identity card 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, bearer of identity card 1- 0971-0856, SABAS GARCÍA LEAL, bearer of identity card 5-0220-0011, SANDRA PÉREZ OBANDO, bearer of identity card 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, bearer of identity card 5-0219-0232, SAUL RETANA LÓPEZ, bearer of identity card 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, bearer of identity card 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, bearer of identity card 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, bearer of identity card 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, bearer of identity card 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, bearer of identity card 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, bearer of identity card 2-0497- 0859, SHIRLEY VÁSQUEZ CASTAÑEDA, bearer of identity card 6-0234-0401, SILVIA CASCANTE RUEDA, bearer of identity card 6-0241-0939, SILVIA CHINCHILLA PORRAS, bearer of identity card 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, bearer of identity card 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, bearer of identity card 1-0791-0964, SILVIA ESPINOZA ACEVEDO, bearer of identity card 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, bearer of identity card 1-0977-0164, SILVIA PALMA ELIZONDO, bearer of identity card 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, bearer of identity card 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, bearer of identity card 1- 0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, bearer of identity card 7-0091-0008, SONIA ISABEL GAMBOA ROJAS bearer of identity card 2-0346-0839, SONIA RAMÍREZ THORPE, bearer of identity card 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, bearer of identity card 5-0222-0182, STEVEN PICADO GAMBOA, bearer of identity card 1-0982-0768, SUGEY FONSECA PORRAS, bearer of identity card 1-1073-0434, SUGEY QUESADA VALERIN, bearer of identity card 7-0116-0302, SUSANA ALFARO SOTO, bearer of identity card 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, bearer of identity card 1-0825-0973, TERESITA BOLAÑOS ROJAS, bearer of identity card 1-0685-0508, TONY ACUÑA PANÍAGUA, bearer of identity card 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, bearer of identity card 5-0222-0486, VANESSA VILLALOBOS MONTERO, bearer of identity card 2-0484-0081, VANLLY CANTILLO GAMBOA, bearer of identity card 1-0874-0062, VERA VARGAS BARRANTES, bearer of identity card 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, bearer of identity card 1- 0730-0506, VÍCTOR FERNÁNDEZ VARGAS, bearer of identity card 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, bearer of identity card 1-0703-0316, VICTORIA OVIEDO SOTO, bearer of identity card 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, bearer of identity card 1-0642-0719, WAIMAN HIN HERRERA, bearer of identity card 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, bearer of identity card 7-0082-0466, WALTER GONZÁLEZ FALLAS, bearer of identity card 1-0818-0248, WALTER GUEVARA LARA, bearer of identity card 6- 0180-0728, WILBERT KIDD ALVARADO, bearer of identity card 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, bearer of identity card 1-0923-0060, WILLIAM CALDERÓN NAVARRO, bearer of identity card 6-0212-0756, WILLIAM MATTHEWS SALAS, bearer of identity card 7-0084-0745, WILLIAM MORA DURÁN, bearer of identity card 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, bearer of identity card 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, bearer of identity card 5-0237-0488, XARY BRICEÑO ALVAREZ, bearer of identity card 7-0085-0762, XINIA BARRIENTOS ARROYO, bearer of identity card 1-0976-0204, XINIA MARÍA ZAMORA OVARES, bearer of identity card 3-0294-0379, XINIA VEGA GUZMÁN, bearer of identity card 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, bearer of identity card 1-0870-0973, YARMILA ULATE YOUNG, bearer of identity card 1- 0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, bearer of identity card 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, bearer of identity card 1-0664-0089, YENSY CAMPOS BARBOZA, bearer of identity card 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, bearer of identity card 1-1404-0477, YESENIA PANIAGUA GÓMEZ, bearer of identity card 1-0845-0494, YESENIA ZAMORA BADILLA, bearer of identity card 1-0991-0793, YORLENDA SPENCE THOMAS, bearer of identity card 7-0103-0835, YORLENY CHING CUBERO, bearer of identity card 7-0119-0457, YORLENY FERRETO SOLANO, bearer of identity card 4-0155-0255, YORLENY SALAZAR NARANJO, bearer of identity card 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, bearer of identity card 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, bearer of identity card 5-0262-0980 and YURLY ARGUELLO ARAYA, bearer of identity card 1-0870-0756.

That resolution provided that, in view of the fact that the first publication of the notice occurred on March 21, 2019, in accordance with the provisions of Article 83 of the Law of Constitutional Jurisdiction, the appropriate course was to recognize these individuals as coadjuvants in this matter.

Furthermore, on May 16, 2019, Karol Monge Molina appeared in her capacity as special judicial attorney-in-fact for the individuals mentioned above, to request a correction of the resolution issued at 9:31 a.m. on May 10, 2019, given that it did not include the following individuals who had requested to be recognized as coadjuvants in the brief filed on April 12: ALLEN CORDOBA CHAVES (Hallen) with ID 5-0271-0887; CARLOS ALBERTO SOLANO PÉREZ ID 6-0211-0367; CARLOS CALDERÓN BARRIOS with ID 3-0335-0644; CARLOS DARIO ÁLVAREZ ARRIETA ID 2-0463-0645: CARLOS QUIRÓS TENORIO 1-0895-0474: CESAR AUGUSTO BARRANTES ARRIETA 1-0934-0951; EIMY ESPINOZA ANCHÍA 6-0260-0919; ELMER HERNÁNDEZ CASTILLO 5-0247-0005; FREDDY CHAJUD TORRES 6-0164-0694; GERALD HUERTAS ORTEGA 1-0926-0977; GERARDO MONGE BLANCO 1-0720-0430; GREGORIO JOSÉ HERNÁNDEZ SANDÍ 1-1016-0149; JAVIER ALVARADO SORO 2-0391-0190; JAVIER LEAL DINARTE 5-0268-0217; JORGE ANTONIO CORDERO CHACON 1-1019-0604; KAREN ALFARO VARGAS 1-0808-0716; KATIA MARCELA SABORIO SOTO 4-0137-0134; KATTIA VARGAS NAVARRO 1-0701-0539; KATTIA VARGAS VEGA 1-0810-0668; LUIS EDUARDO RODRÍGUEZ QUIRÓS 1-0605-0013; MABEL MURILLO ARCE 2-0443-0636; MARCELA MADRIZ ARCE 3-0271-0457; MARÍA VALENTINA CARMIOL YALICO 1-0744-0771; MARIO CAMACHO CAMPOS 1-0845-0638; MARLENE ACEVEDO MONTES 6-0152-0743; MARVIN DURAN PEREIRA; OMAR AGÜERO ROJAS 6-0152-0077; RALOXS ALVARADO CASCANTE 1-0873-0410; RODNEY GEORJANNY EARL BROWN 1-0930-0027; RONALD ABARCA SOLANO 3-0282-0138; SANDRA GÓMEZ AGUILAR 3-0262-0507; SANTIAGO ALFONSO ARAYA GUTIERREZ 1-0826-0278; SHIRLEY ROJAS BARRANTES 5-0240-0923; TERESA JIMÉNEZ ROJAS 6-0172-0033; VICTOR HUGO CHAVES CHAVARRÍA 2-0443-0030; and WILKIN PORRAS ALVAREZ 1-0772-0252. Consequently, this omission is hereby corrected and they are recognized as coadjuvants with the warnings made in the resolution issued at 9:31 a.m. on May 10, 2019. Likewise, the data of the following coadjuvants that were also erroneously included in the cited resolution are hereby corrected, so that they read correctly as follows: AMANDO AGÜERO ARAYA (read AMANDO and not ARMANDO) 6-0212-0007; CARLOS PORRAS MORERA 1-0752-0459; DONALDO BERMÚDEZ RODRÍGUEZ 6-0250-0554; KRISIA FUMERO ARAYA 3-0324-0912; LIGIA CASTILLO CASTILLO 3-0344-0861; LUIS FERNANDO SUAREZ JIMENEZ 1-0738-0178; MARÍA ISABEL VILLEGAS NÚÑEZ 1-0665-0648; TANIA MARÍA PÉREZ BARRANTES 1-0825-0973; WALTER GONZALEZ FALLAS 1-0818-0243; JOSÉ RUBÉN DIMAS PORTILLO 8-0070-086.

In that filing of May 16, 2019, Ms. Karol Monge Molina also requests that the following individuals be recognized as coadjuvants: AUGUSTO FEDERICO LEONHARDES ZAMORA, of legal age, married, judicial employee, resident of Desamparados de San José, ID 6-0156-0657; ROGER GERARDO AGUILAR CEDEÑO, of legal age, married, Investigator for the Public Defense, resident of San José, Desamparados, identity card 1-0583-0279; ROCÍO RAMÍREZ LEITÓN, of legal age, widow, Social Worker, resident of San José, Moravia, identity card 1-0544-0163; XINIA FERNÁNDEZ VARGAS, of legal age, divorced, Social Worker, resident of Cartago, Central canton, identity card 1-0593-0681; and EVELYN PIEDRA VILLAFUERTE, of legal age, divorced, Public Accountant, resident of San José, Pérez Zeledón, identity card 1-0931-0261, arguing that, for health reasons, these individuals were unable to sign the respective Special Judicial Power of Attorney at that time together with the entire group of coadjuvants who appeared. In view of the fact that this petition on behalf of these individuals was filed on May 16, 2019, that is, after the deadline established in Article 83 of the Law of Constitutional Jurisdiction, the appropriate course is its rejection for having been filed untimely.

Finally, on September 2, 2019, Wilkko Retana Álvarez, a judicial official, with ID 1-0737-0795, appeared to state that he was filing a late coadjuvancy in this action of unconstitutionality against the conditions established in Law 9544 for opting for retirement. This coadjuvancy petition is also rejected for having been filed untimely, that is, after the deadline established in the cited Article 83.

III.- Magistrate Hernández López writes. The standing rules in actions of unconstitutionality in relation to the claimants.- Article 75 of the Law of Constitutional Jurisdiction regulates the requirements that determine the admissibility of actions of unconstitutionality, demanding the existence of a matter pending resolution in an administrative or judicial venue in which the unconstitutionality is invoked; a requirement that is not necessary in the cases provided for in the second and third paragraphs of that article, that is, when due to the nature of the norm there is no individual or direct injury; when it is based on the defense of diffuse interests (intereses difusos) or those that concern the community as a whole; or when it is filed by the Procurador General de la República, the Contralor General de la República, the Fiscal General de la República, or the Defensor de los Habitantes, in these latter cases, within their respective spheres of competence. According to the first of the scenarios provided for by paragraph 2 of Article 75 of the Law of Constitutional Jurisdiction, the challenged norm must not be susceptible to concrete application, which would later allow the challenge of the applicative act and its consequent use as a base matter. Secondly, the possibility is foreseen of seeking recourse in defense of "diffuse interests," which are those whose ownership belongs to groups of people not formally organized, but united around a determined social need, a physical characteristic, their ethnic origin, a determined personal or ideological orientation, the consumption of a certain product, etc. The interest, in these cases, is spread out, diluted (diffuse) among an unidentified plurality of subjects. This Chamber has listed various rights to which it has given the qualifier of "diffuse," such as the environment, cultural heritage, the defense of the country's territorial integrity, the proper management of public spending, and the right to health, among others. On the other hand, the enumeration made by the Constitutional Chamber is not exhaustive. Finally, when paragraph 2 of Article 75 of the Law of Constitutional Jurisdiction speaks of interests "that concern the community as a whole," it refers to the legal rights explained in the preceding lines, that is, those whose ownership rests with the very holders of sovereignty, in each one of the inhabitants of the Republic. It is therefore not a matter of any person being able to appear before the Constitutional Chamber in protection of any interests (actio popularis), but rather that every individual can act in defense of those rights that affect the entire national community, without it being valid in this field either to attempt any exhaustive enumeration. Based on the foregoing, it is clear that the claimants possess sufficient standing to challenge the constitutionality of the contested norms. It should be noted that, given the large number of consolidated actions, there is a diversity of claimants since some have standing based on the provisions of Article 75, paragraph two, because they appear in defense of an interest that concerns the community of judicial employees as a whole, and others file actions of unconstitutionality based on prior matters that are pending resolution. In that sense, the first group of claimants appearing in defense of guild interests are those corresponding to actions of unconstitutionality number 18-007819-0007-CO (which is the main file to which the remaining 9 actions were consolidated) filed on behalf of the Asociación Nacional de Empleados Judiciales (ANEJUD); number 18-007820-0007-CO filed on behalf of the Asociación Nacional de Profesionales del Poder Judicial (ANPROJUD); number 18-008202-0007-CO filed on behalf of the Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD) and the Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD); number 18-008267-0007-CO filed on behalf of the Sindicato Asociación de Investigadores en Criminalística y Afines; number 18-008292-0007-CO filed on behalf of the Cooperativa de Ahorro y Crédito de Servidores Judiciales R.L (COOPEJUDICIAL R.L.); number 18-008591-0007-CO filed on behalf of the Asociación Nacional de Investigadores en Criminalística y Afines (ANIC), the Asociación Nacional de Jubilados y Pensionados del Poder Judicial (ASOJUPEN), the Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD), and the Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD); number 18-009275-0007-CO filed on behalf of the Sindicato de la Judicatura (SINDIJUD), the Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD), the Asociación Costarricense de Juezas, the Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD), and the Caja de Préstamos y Descuentos de los Empleados Judiciales (CAPREDE); number 18-013217-0007-CO filed on behalf of the Asociación Costarricense de la Judicatura (ACOJUD). The other claimants who file actions of unconstitutionality in their personal capacity, according to the provisions of Article 75, paragraph one of the Law of Constitutional Jurisdiction, and who have amparo appeals that are pending resolution, are those contained in the action of unconstitutionality; in number 18-014168-0007-CO and in number 19-001720-0007-CO. The Chamber considers that all the claimants involved are perfectly legitimized to bring action - with the exceptions that will be stated - in light of the provisions of paragraphs 1 and 2 of Article 75 of the Law of Constitutional Jurisdiction. In addition to the foregoing, the objections of unconstitutionality raised indeed concern matters whose constitutionality is appropriate to review through this channel. Furthermore, the claimants met the requirements stipulated in numerals 78 and 79 of the procedural Law. In conclusion, the consolidated actions of unconstitutionality are admissible, and therefore, the subject matter and the merits of the case must be immediately discussed, with the exceptions set forth below.

IV.- Magistrate Hernández López writes. Regarding the partial admissibility of action 19-001720-007-CO. In action of unconstitutionality 19-001720-007-CO, the petitioner uses amparo appeal 18-17019-007-CO as the base trial. It must be remembered that Article 75 of the Law of Constitutional Jurisdiction, as an admissibility requirement for the action of unconstitutionality, demands, apart from the existence of a base trial in which the unconstitutionality claimed in the action is alleged, that there also exists a connection between both proceedings, that is, the base trial and the action of unconstitutionality, and that it is a reasonable means of protecting the right of the person under protection. In that sense, regarding the filed action of unconstitutionality, there is a series of arguments raised to protect the community of employees, officials, pensioners, and retirees, which have no relation to her specific situation and therefore, must be rejected for reasons of admissibility. They can only be admitted, in her case, because it involves a particular claim, not based on any diffuse interest, but rather, on the contrary, since it concerns the scenario regulated in the first paragraph of Article 75 of the Law of Constitutional Jurisdiction, claims that are not directly related to her specific situation cannot be accepted, because they would not be reasonable means of protecting her right. In that sense, in the case of action of unconstitutionality 19-1720, the claims that do not affect the situation of the claimant, who is a judicial official stating she joined the Public Prosecutor's Office on January 2, 1988, are declared inadmissible. In that sense, the issues related to the claimed "membership" in ILO Convention 102 (Article 29 subsection a), according to which she believes there is a right of "membership" from having contributed for 20 years in a determined regime, do not affect her. Likewise, the claims that seek to protect the generality of employees, officials, pensioners, and retirees, which have no relation to her specific situation, must be rejected as inadmissible, among these, those that seek to protect judicial employees who, in her opinion, will receive lower pensions than the pensions of the IVM regime of the CCSS and those who are in categories different from her own, such as those who have received salaries below 1.5 million colones over the last 20 years, who she indicates make up 62% of the employees of the Poder Judicial. In action of unconstitutionality 18-14168-007-CO, although it is an action in which the claimants appear in their personal capacity, based on the standing granted to them by the first paragraph of Article 75 of the Law of Constitutional Jurisdiction, since there are amparo actions serving as the base for their action, the entire action is admitted, because the challenges do have a direct relationship and connection with their situation, such that if upheld, they would be reasonable means of protecting their right.

V.- Magistrate Hernández López writes. Regarding the omission to consult the Caja Costarricense de Seguro Social and the State Banks on the bill processed in file No. 19.922. Some of the claimants argue that even though the legislation establishes new functions, powers, and obligations for dependencies of the Caja Costarricense de Seguro Social and the State Banks, regarding their lending possibilities by subjecting them to percentage investment obligations, the Asamblea Legislativa did not consult them so they could pronounce on the articles of the bill that could eventually affect them, estimating that this violates the Constitution. On this point, it must be taken into account that this Tribunal has repeatedly resolved that standing to defend autonomy, through the action of unconstitutionality, is the responsibility of the respective public entity. Thus, for example, in judgment number 2008-017295 at 2:48 p.m. on November 19, 2008, it held that "only the autonomous institution affected by the omission in the legislative process is the one with standing to bring action" (in the same vein, judgment number 2008-014190 at 10:00 a.m. on September 24, 2008). It must be said that in a case where a possible violation of the autonomy of the Caja Costarricense de Seguro Social was alleged, this Chamber insisted that "(…) the jurisprudential line of this Tribunal is clear in establishing that, when the defense of institutional interests is alleged in an action of unconstitutionality, one is faced with a scenario of individual and direct injury, for which reason it must be their own legal representatives and not a third party who appear before this Chamber in their defense (see, in this regard, judgments numbers 2009-00305 at 3:13 p.m. on January 14, 2009, 2008-017295 at 2:48 p.m. on November 19, 2008, 2016-01669 at 9:30 a.m. on February 3, 2016, and 2017-008159 at 9:15 a.m. on June 2, 2017, among others). The Procuraduría General de la República has pronounced in the same sense in its response to this action, that is, in the sense that the claimants lack standing to bring these particular claims. To this effect, the Procuraduría General de la República states:

"The claimants maintain that during the legislative process, the CCSS and the State Banks should have been granted a hearing, since their autonomy was affected by attributing functions, powers, and obligations to them without first seeking their opinion.

On this aspect, we must point out that the defense of the autonomy of the CCSS and the State Banks must be undertaken by those institutions, not by the trade union organizations of the Poder Judicial, nor by former officials of that Branch.

It is evident then that, on this point, there is a lack of standing by the claimants to raise the objections they formulate. This Chamber has already so resolved on other occasions. By way of example, in judgment n.° 14651-2017 at 9:30 a.m. on September 13, 2017, it indicated the following:

"it must be pointed out that this Constitutional Tribunal has repeatedly indicated that the defense of an institution's autonomy must be brought before this instance by that same entity and not by a third party (Votos Nos. 2008-014190 at 10:00 hrs. on September 24, 2008, 2008-017295 at 2:48 hrs. on November 19, 2008, 2016-01669 at 9:30 hrs. on February 3, 2016, and 2017-008159 at 9:15 hrs. on June 2, 2017. In the sub judice case, the claimant acts in his capacity as representative of a corporation, for which reason he lacks standing to act in defense of municipal autonomy." The referred judgment is clear in its proposition and refers to various precedents that the claimant may consult." Based on the foregoing, the reasons of unconstitutionality raised by the claimants for the possible violation of the autonomy of the CCSS and the State Banks are inadmissible." In line with the arguments cited above, it must be said that the Law governing this Jurisdiction authorizes the promotion of an action of unconstitutionality against norms that have negative effects on the claimants' own fundamental rights, and in the case under study, whether the Caja Costarricense de Seguro Social or the state banks were consulted or not does not directly affect the promoters of this action in their rights, because the individuals directly affected by the alleged procedural defect are not the workers themselves, but rather the institution which is argued not to have been consulted, that is, properly the Caja Costarricense del Seguro Social which is constitutionally responsible for the administration of social insurance, in accordance with the provisions of Article 73 of the Political Constitution, as well as the State Banks in defense of their autonomy; consequently, only said institutions may legitimately raise that unconstitutionality before this Chamber. In this manner, as the promoters lack standing to bring action on this point, the action is unfounded regarding these allegations.

VI.- Magistrate Hernández López writes. Subject matter of the challenge.- The claimants challenge Law number 9544 called "Reform of the Retirement and Pension Regime of the Poder Judicial," contained in Law number 7333, which is the Organic Law of the Poder Judicial of May 5, 1993, and its Reforms, a challenge made in toto, and specifically against articles: 224, 224 bis, 226, 227, 236, 236 bis, and 239, as well as against Transitory Provision VI of the Organic Law of the Poder Judicial, reformed through Law No. 9544 of April 24, 2018. Furthermore, the claimants raise unconstitutionality against Article 208 bis of the Internal Regulations of the Asamblea Legislativa. The norms are challenged regarding the legislative procedure and regarding the merits or content of the law.

VII.- Magistrate Hernández López writes. Background and reasons that led to the issuance of Law 9544.- Before analyzing the reasons that led to the issuance of the reform to the regulations governing the pension regime of the Poder Judicial, it is important to understand the context of the different pension regimes and their characteristics, and in which of them that of the Poder Judicial is located, in order to understand the universe of systems that our country has and the specific characteristics of the regime under analysis. Thus, according to the Superintendencia de Pensiones, in our country, pension regimes are classified into three broad categories: basic pension regimes, complementary regimes, and non-contributory regimes. The Pension Regime of the Poder Judicial is funded by a tripartite contribution (contribution from workers, the employer, and the State). Among the basic regimes that our country has, are:

For their part, the complementary regimes are:

For its part, the Dirección Nacional de Pensiones del Ministerio de Trabajo y Seguridad Social administers the following regimes:

(classification appearing on pages 230 and 231, Volume 1, of the legislative file) Through Law No. 34 of July 9, 1939, the Pension and Retirement Fund for judicial employees was established; later it became part of the Organic Law of the Poder Judicial No. 8 of November 29, 1937, constituting Title XI: "Of Judicial Retirements and Pensions." In the years (1959, 1961, 1962, 1963, 1964, 1971, 1983), several reforms were made to its articles, regarding age requirements and years of service for retirement, as well as the determination of beneficiaries. Subsequently, with Law No. 7333 of May 5, 1993, the Organic Law of the Poder Judicial No. 8 was comprehensively reformed, and the title corresponding to Judicial Retirements and Pensions became IX; later Law 7605 of May 2, 1996, reformed several articles of this title, seeking the sustainability of the Fund.

In the years 2012 and 2013, as a result of revelations made by actuarial studies regarding the actuarial deficit, the Poder Judicial began an internal process aimed at drafting a reform proposal to reverse the actuarial deficit that had been evidenced. In this process, the guild organizations presented their opinion and proposals to the Corte Suprema de Justicia, as recorded in session No. 12-2013 held at 9:00 a.m. on March eighteenth, 2013 (see Integrated Legal-Economic Report AL-DEST-ITS-307-2016, page 225 and following, Volume I, legislative file).

As can be seen from the statement of motives visible on page 2 of legislative file No. 19.922, which was given the title "Bill for the Comprehensive Reform of the Various Pension Regimes and Related Regulations," the promotion of that initiative arose from the interest of several legislative blocs to "(…) carry out a comprehensive reform of the entire pension regime, with the objective of eliminating abusive provisions, rationalizing spending, giving stability to the various special pension regimes and the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense de Seguro Social. The foregoing, based on the principles of solidarity, equality, redistributive justice, and efficiency, which are pillars within our social state governed by the rule of Law." Likewise, that statement provides that "the bill intends to make the modifications and additions necessary to those special regimes, in order to correct situations that are detrimental to their sustainability. Similarly, modifications are made to all related regulations that are necessary to correct the problems detected. Situations such as pension payments to deceased persons, disproportionate increases, luxury pensions, lifetime benefits (beneficios vitalicios), lack of supervision and control, among many other shortcomings, are what this initiative seeks to correct. Under the above considerations, it should be noted that the desire is to eliminate or modify those provisions that do not correspond to the country's fiscal reality, as well as disproportionate benefits that are not consistent with our financial situation. The concern for the country's finances is also noted, stating: "the desire is to eliminate or modify those provisions that do not correspond to the country's fiscal reality, as well as disproportionate benefits that are not consistent with our financial situation." "The foregoing, through a comprehensive study of pension regimes, instead of processing separate initiatives, which, while very laudable, in the totality of cases correct specific situations. We are convinced that to assist the public treasury and the sustainability of these regimes, it is necessary to carry out structural reforms that will have a greater impact on their financial health.

The deputies signing this bill are convinced that the sustainability of many pension regimes rests in our hands, and we consider it an unavoidable duty to attack all those inconsistencies that may be causing harm to the financial stability of a particular regime." As is evident from the legislative file, the intention of the bill was to cover several pension regimes, among them it was expressly stated that it was necessary to "include within this proposal the Pension and Retirement Fund for Employees of the Poder Judicial and present a solid and responsible proposal given the situation it is going through." The proponents of the bill state specifically regarding this regime that "as legislators, our concern lies fundamentally in the need to review and, if applicable, limit the benefits received by the members of said regime, which is characterized by not having a cap on the pensions granted, by allowing judicial employees to retire at sixty years of age, enjoying a retirement equal to the average salary of the last twenty-four best ordinary monthly salaries, among other aspects that jeopardize the balance of the regime. Many judicial employees retire at early ages, and in some cases enjoy 'luxury pensions,' which produce a latent danger and a risk to the sustainability of the Fund in question, making evident the great differences that exist between the pension regimes in our country. Furthermore, the disproportion of different pensions of judicial employees has been exposed, which obliges us to carefully analyze this situation and seek a serious and responsible solution (…) and make the necessary reforms so that it can adapt to the social and economic reality of our country, and endow it with the sustainability it needs to succeed and provide it with funds for its proper functioning." "During the year 2012, results of actuarial studies were presented that have generated a real alert about the need to apply adjustments to this legislation with the purpose of reversing actuarial imbalances that have been evidenced and that have created the concern to review this regime and make the necessary reforms so that it can adapt to the social and economic reality of our country, and endow it with the sustainability it needs to succeed and provide it with funds for its proper functioning." From the legislative file, it is observed that the initial bill was aimed at reforming all pension regimes; however, subsequently, the Legislative Branch focused on processing the reform of the Retirement and Pension Regime of the Poder Judicial separately. Thus, it can be verified that in ordinary session No.

15 of the Special Commission Responsible for Hearing and Ruling on the Bill “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922”, presented a motion for a new substitute text as a result of which the name of the bill is formally changed to be called “Reforma del Título IX de la Ley Orgánica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales No. 7333 del 5 de mayo de 1993 y sus reformas” (folios 1674 and 1717 of Volume 7 of the legislative file); a substitute text motion that was approved with 7 deputies in favor and 1 against (folio 1731 volume 7).

It is important to add that prior to the presentation of this reform bill, the Superintendencia de Pensiones (SUPEN) had expressed its concern about the unsustainability of the Pension Regime of the Poder Judicial (see Revista de Pensiones No. 23 SUPEN September 2014 p. 16). Among the aspects noted, it indicates:

Investment: SUPEN criticizes that the Poder Judicial invests everything in instruments issued by public sector entities (and until maturity) because it generates a high concentration risk and limits the possibility of achieving higher returns at reasonable risks.

Sustainability: for the benefits to pensioners until their extinction, the fund requires 764,889.6 million; however, it only has 369,065.2 million accumulated, that is, barely 48.2% of what is needed. For its part, the reserve in formation of the Fondo de Jubilaciones y Pensiones del Poder Judicial as of March 31, 2014, is zero. Furthermore, in the last two years, the growth rate of new pensioners began to accelerate and exceeded 5% annually.

Privileges: on average, a pension from the Poder Judicial Regime is five times higher and its members retire 20 years earlier than in the IVM (Régimen de Invalidez, Vejez y Muerte). In addition, the benefit corresponds to the average salary of the last 24 months, which is equivalent to nearly 100% of the salary received. In the event of death, the spouse receives the full amount of the benefit that the retiree had been enjoying. It also allows officials to retire with a full pension at age 55. (see folio 241, Volume 1 of the legislative file) SUPEN suggested that any change had to be based on an actuarial study with a reasonable degree of certainty, and on the effectiveness of the measures to achieve the actuarial balance of the regime in the long term (folio 264 volume 2 of the legislative file).

The Consejo Superior del Poder Judicial, in official communication 5211-DE-2016 (folio 683 volume 3 of the legislative file) notes that, in session of December 6, 2007, article XLII, they had agreed that actuarial studies would be carried out every two years and that in 2014 they arranged to hire a company represented by Eduardo Melinsky, who had conducted the previous study, but the contract could not be executed because that professional was not affiliated with the Colegio de Ciencias Económicas de Costa Rica, which was a requirement of the contracting process since Mr. Melinsky is a mathematical actuary residing in another country. Subsequently, another unsuccessful tender was held, which led them to seek the alternative of using the collaboration agreement that the Institution has signed with the Universidad de Costa Rica, so that it could work with the technical team of the Poder Judicial and to evaluate the current financial solvency of the Fund and its projection. In Agreement R-CONV-005-2016 subscribed between the Poder Judicial and the Universidad de Costa Rica, it is recorded that there will be several interdisciplinary teams between the parties. In the case of the Poder Judicial on the Executive Team, a representative of the Gremios del Poder Judicial will participate (folios 689 and 1154); for the first time, representation was given to the workers in an actuarial study. In an appearance before the Commission, Licenciado Hernández Solano stated:

"For the first time in an actuarial study, representation is given to the workers, on this occasion with the UCR study, for the first time.

There is a technical committee within the Poder Judicial and a technical committee within the UCR, they are the ones who analyze all the parts of the five phases that the UCR-Poder Judicial agreement has. The Executive Committee within the Poder Judicial is the one that endorses each phase, the test, consults with the Technical Committee and ultimately we give approval." "On behalf of the institution, there is an executive team... The Head of the Financial Accounting Department of the guilds is part of this technical team. Why does the institution make that decision? Well, because experience had shown us that, in previous processes, the guilds' challenges to the study would come at the end of the study, and then we would enter into internal conflict, which was not healthy. In this way, we considered it important to incorporate the union representative as part of this executive team, and he actively participates and reviews the products, as part of the rest of the team that is formed." (folio 1325 volume 6 of the legislative file) There, the conditions of each product were agreed upon and the agreement was communicated to the Special Legislative Commission responsible for hearing and ruling on the bill "Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222" (folio 775 folio 4 legislative file) "In the process, observations were made, I even want to tell you that the Auditoría Judicial also participated in this review process, and there were observations on the part of Mr. Arnoldo, at the time union representative, on the part of the Audit Office, they were forwarded to the IICE, they gave us a response, in some cases they corrected the products because this process occurs in a preliminary version for discussion or for evaluation and then, satisfied with that correction, approval and approval were given" (folio 2335 volume 10 legislative file) At folio 843 of the legislative file, the previous actuarial study by Melinsky, Pellegrinelli y Asociados S.A is provided, which at folio 939 notes among its recommendations that by the year 2026 a critical year is foreseen with a significant actuarial deficit of 50% of the constitutive capitals of the benefits in course. It points out that "substantive and effective measures are required aimed at reducing the actuarial deficit and substantially postponing the critical year." It adds that in order to take adjustment measures, it must be kept in mind that this is an ongoing pension regime where the following concepts must be made compatible:

Benefits in course Time of service provided by active employees Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, required average equilibrium premium) Legal Contributive capacity of the members Budgetary capacities of the Poder Judicial Budgetary capacities of the Poder Ejecutivo It adds: "any legal analysis must take into account that the adjustments indicated are necessary in order to improve the situation of actuarial deficit and critical year, which implies an Institutional Risk that endangers the assets of all collective and passive members who make up the pension regime of the Employees and Officials of the Poder Judicial. (the highlighting is not from the original) "That is to say, the basic legal element to take into account is that the individual rights recognized by current law must be considered rights in expectation subject to the collective right regarding the feasibility of the benefits to the mass of members, not only as to their impact in the scope of the Poder Judicial but due to their potential effect on the National Budget." In this way, taking into consideration Convenio 102-OIT ratified by Costa Rica and recent jurisprudence, in accordance with the working meetings, it is considered that the changes should not affect those who are within 18 months of reaching their retirement benefit at the time of the approval of the modifications." The organizations of judicial employees undertook the task of hiring their own mathematical actuary to comment on the 2012 study by Melinsky, Pellegrinelli y Asociados S.A, in which it is indicated that he coincides with the majority of the recommendations given in that report; however, it presents a difference regarding the critical year in which the Fondo de Jubilaciones could have problems, which changes from 2026 to 2050. (see folios 1053 et seq. volume 5 of the legislative file) The difference between the actuarial criteria and the time elapsed (several years) justified the aforementioned decision of the Poder Judicial to agree on a new study with the School of Economics of the Universidad de Costa Rica, mentioned above. To wait for the result of those studies, the Commission responsible for the reforms in the Asamblea Legislativa agreed to several extensions to the period agreed upon for ruling, awaiting those products (see folios 1186, 1224 volume 5 of the legislative file) "considering also that technical studies are indispensable for any proposal on the matter and without technical support, there would be a risk that any modification could be declared unconstitutional, which is why the following modification to extend the deadline for the Special Commission studying the reform of the law in question is proposed..." (folios 1224, 1230 et seq. volume 5 of the legislative file) In the appearance of the Executive Director of the Poder Judicial (volume 1322 et seq. volume 6 of the legislative file), she points out that since the last actuarial study by Melinsky, the actuarial deficit situation went from 2.48 million million "to a scenario that is around 5 billion million." Faced with the question from Deputy Piszk Feinzilber: "Would I understand correctly, if I interpret that the situation is worse than we had imagined?", the Executive Director's answer is: "Yes. Four years have passed from 2012 to date. Decisions have not been made and the situation has worsened." (folios 1338 and 1339 volume 6 of the legislative file) Deputy Piszk Feinzilber adds:

"What I want is for it to be very clear here is that our concern is not based on a whim" ... but on the fact that it is crystal clear that as long as decisions are not made, the situation will continue to worsen." "I know and we had even committed to waiting for a complete actuarial study to make decisions of order, I do not know if the correct word is numerical or it is not numerical, but regarding contributions, but well, I think it is crystal clear that there is concern on our part, that the Court must be aware of this, that here, well, it is all Costa Ricans who are going to have to pay, if this continues to drag on, and from that point of view, we evidently as legislators, who have to make a decision..." (folio 1343 same volume) In the same vein, Deputy Guerrero stated: "To reiterate what Álvaro Ramos said. This is not an issue against, it is in favor of the working class. That substitute text improves but does not sustain the health of the regime. A regime that will end up in the national budget of the Republic, if health is desired, a regime that also does not guarantee the pension expectation of the people who are currently contributing or will have to contribute double; the same as the employer and the same as the State. That is, it goes to the central budget..." (folio 1754 volume 8 legislative file) Starting from folio 1321, the appearance of Dr. Max Soto Jiménez of the Institute of Economic Research of the Universidad de Costa Rica and part of his team is recorded; he informs the Commission in advance that among the findings, the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of the accumulated reserves and is 36% of the present value of the entire liability of the regime, and that the substitute text being discussed in the Commission is insufficient to guarantee the sustainability of the Poder Judicial's pension regime. (see folio 1352 volume 7 legislative file). That conclusion is repeated in the delivery of product #3 from the IICE, which indicates that the proposed substitute text improves the situation but does not serve to guarantee the sustainability of the regime. (folios 1600 et seq., particularly folios 1633, 1634, volume 7 of the legislative file). That version included observations from the counterpart teams (folio 1601 same volume) As a reaction to the technical study, the Commission presents a new substitute text for the reform bill on 3-29-2017 (see folios 1673 et seq. same volume), which is approved (folios 1731 et seq. same volume) In volume 10 (folios 2274 and 2275), the intervention of Dr. José Antonio Cordero Peña of the IICE is recorded, in the same vein regarding the seriousness of the fund's situation and the need to take measures:

"In reality, it is evident that the fund at this moment is insolvent... If we continue as things are at this moment, what will happen is that the people who retire in the coming years are going to eat up the fund's resources of future generations, and see how curious, since we are all so long-lived, they are also going to eat up the funds of those who will finance them when they are ninety years old, when they are ninety, ninety-five years old, someone will have to come and tell them, look, you know what, your pension will no longer be feasible, similar to what happened to some members of private pension funds in Chile." From the minutes, a clear intention of the majority of the members of the Commission to wait for the totality of the IICE's products can be deduced. For this reason, the deadline for analyzing the bill was extended several times and several substitute texts were made, likewise, to rule in adherence to the technical criteria, as is evident from the following statements:

"Well, first of all, I do not understand why the colleagues from the Frente Amplio want to review a vote of more than thirty-eight votes that is intended to extend the deadline...

Secondly, I want it to be very clear here that it was never, never said that a ruling would be made without having the actuarial studies from the Universidad de Costa Rica.

At all times, this commission stated that it would rule with technical criteria, with responsible criteria, and with the actuarial numbers. Now I also have to say that there is enormous concern here and a demand that we make from here to the Court, because since September of last year, they have been telling us that the actuarial study will be in November, later they tell us it will be in January, later they tell us not until April, and today they tell us not until June." (folio 1810 volume 8 of the legislative file) On the other hand, in the appearance, Lic. Álvaro Ramos Chaves, Superintendent of the Superintendencia de Pensiones (SUPEN) (see folios 1692 et seq. same volume), and among the observations he makes, he proposes as a suggestion to help reduce the actuarial deficit of 5 billion million, the possibility of introducing a special solidarity contribution, progressive with some ceiling to lower it to one million million colones, and an Administrative Board that would be an organ attached to the Poder Judicial with maximum deconcentration and instrumental legal personality, which would be financed with a payment by all of 5 per 1000 on salaries and pensions. Likewise, he recommends an 18-month transition for the new legislation, in accordance with national jurisprudence (folio 1711 same volume). Later, he submits a written report at folios 1852 et seq. on the consulted substitute text) At folio 1861 of volume 8 of the legislative file, the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE) delivers its report IICE_4, and among the conclusions, it points out that from the comparison of the current text governing pensions, the substitute text, and the bill sent by the Court, none of the scenarios guarantees long-term actuarial solvency. Regarding what is relevant, Conclusion 3 states:

"From the comparison of the different results obtained in each of the Normative Frameworks (Current vs. Substitute Text vs. Corte Plena), it is evidenced that:

-the main indicators of actuarial solvency quantified here (the Actuarial Balance and the respective 'Insolvency Level' indicator at a 100-year term) under the CORTE PLENA Framework improve with respect to those obtained under the CURRENT FRAMEWORK; but not enough to be able to objectively and technically rigorously establish actuarial solvency in the long term.

-the difference between those same two indicators of actuarial solvency (the Actuarial Balance and the respective 'Insolvency Level' indicator at a 100-year term) calculated under the CORTE PLENA FRAMEWORK with respect to those calculated under the SUBSTITUTE TEXT FRAMEWORK is not significant. In neither of those two quantified normative frameworks could long-term actuarial solvency be verified." (folio 1895 same volume) At folios 2155 et seq. of Volume 9 of the legislative file, product IICE-6 Final Report: "Recopilación e Informe Final: Conclusiones y recomendaciones" is recorded, which reiterates that under the scenario current as of 12/31/15, the Fund cannot guarantee its promises in the long term (Conclusion #2), just as the bill presented by the Corte Suprema and that of the Gremios del Poder Judicial are not viable from the point of view of the Regime's solvency (Conclusions #1, #4, #8). Likewise, it points out that under the normative framework Substitute Text of 12/31/15, the Fund cannot guarantee the promises in the long term (Conclusion #3). Scenarios IICE_3 and IICE_4 do pass the actuarial solvency test (Conclusions #8 and #9), just as scenarios IICE-3 and IICE-4 do not generate burdens for the State.

For its part, at folios 2570 et seq. of Volume 11 of the legislative file, it is recorded that the Ruling Commission, after hearing the Final Report of the IICE, decided to incorporate some of the variables contained in Normative Framework IICE-4. Among these:

a- Age for ordinary old-age retirement: 65 years b- Age for early retirement due to time of service: 60 years for women and 62 years for men.

c- Time of Service: 35 years, minimum 20 years worked in the service of the Poder Judicial.

d- Percentage of retirement amount: 85% of the average of the last 240 salaries.

e- Percentage of pension amount for widowhood, children: 80% f- Maximum pension cap: 10 times the lowest salary being paid in the Poder Judicial.

g- Minimum Pension: one third of the official's last salary.

h- Worker contribution: 15% i- Employer contribution: 14.36% j- State contribution: equal to the IVM (Régimen de Invalidez, Vejez y Muerte CCSS) k- Special, Solidarity, and Redistributive Contribution: 50% on the excess over the maximum cap (10 base salaries) l- The administration of the Fund: not assumed by the Fondo de Pensiones y Jubilaciones del Poder Judicial m- Incentive for postponing old-age retirement: not contemplated in the model.

That text ruled on was consulted with the Corte Suprema de Justicia (folio 2625, 2759 et seq.) and was published in La Gaceta Digital 147, Alcance 189 of August 4, 2017 (consulted majority opinion) and in La Gaceta Digital 148 Alcance 190 August 7, 2017 (minority opinion) (see folio 2866 Volume 12 of the legislative file) The majority and minority opinions were consulted with the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, which had prepared proposals IICE_1 through IICE_6. In official communication IICE-186-2017 (folio 2942 et seq. of Volume 12 of the legislative file), it is indicated, regarding the bill ruled on by the majority, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution of 50%, the worker contribution with a differentiated scale, and the early retirement age with gender differences, act in favor of the fund's actuarial solvency. While in the case of the minority opinion (folios 2945 et seq. same volume) which was in favor of:

Using a lower reference salary, calculated as the average of the last 10 years adjusted by the CPI. On this point, it is indicated that this calculation modality is less favorable for the fund's actuarial solvency, and that its effect must be analyzed together with other characteristics and parameters such as age for ordinary or service retirement, worker contribution, solidarity and transitional contribution. 85% of the reference salary with an 11% worker contribution. In this regard, it points out that an 11% worker contribution should be associated with a retirement or pension that does not exceed 72.5% of the reference salary calculated with the last 120 salaries adjusted by the CPI, in order to maintain actuarial solvency. An age of 62 years for men and 60 for women is proposed, and no minimum age is established for early or service-based retirement. Regarding this, it is pointed out that in this scenario, even with a contribution of 15% on salaries, retirements, and pensions, the fund is insolvent if a benefit of 85% of the reference salary is maintained. It adds that "the analyses conducted by IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous test of actuarial solvency." In particular, it points out:

" i. If the worker contribution remains at 11% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 3 million million colones, and the actuarial insolvency would be greater than 30% of the promises.

ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 1.7 million million colones, while the actuarial insolvency would be greater than 17% of the promises.

Solidarity contribution of 20% of the excess over the maximum cap defined for retirements and pensions, which is set at 10 base salaries. This percentage may be increased to 50% "if so recommended by an actuarial study and approved by the Junta Administrativa del Fondo." Regarding this proposal, the IICE notes that reducing the contribution to 20% loses part of the equalizing effect of said contribution. Transitory V. Transitory V proposed by the Minority Opinion extends the benefits of the current law for 10 additional years beyond the 18 months that are recognized as an acquired right; although the benefit is established as 100% of the reference salary of 120 salaries adjusted by the CPI, the transitory provision does not contemplate gradualness, so its effect on solvency approximates that of the transitory provision of the Corte Plena bill, analyzed in Product 4 of the actuarial study. Given that it is a longer period with less gradualness, it is less favorable relative to Transitory IV of the Majority Opinion in terms of its impact on the fund's actuarial solvency. Employer contribution. It is proposed that the employer contribution of the Poder Judicial (currently 14.36% of the salaries and wages of the members) "shall be proportionally adjusted in accordance with the increases that the Junta Administrativa agrees as a contribution from judicial employees...". "The IICE team considers the previous clause totally inconvenient." "The position is that the guarantee of solvency should not rest on state contributions and in this way avoid a further deterioration of the country's already delicate fiscal situation." Credit operations: It was proposed to authorize the Junta Administradora to carry out credit operations with the Fund's income, directly or through a financial institution. On this topic, the IICE team stated: "...the eventual participation of the fund in credit operations must be analyzed with great care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which entail expenses and also risks that must be adequately assessed." After these observations and the legislative discussion, modifications were made to the bill, in most cases, to adapt them to the criteria issued by IICE, others to incorporate positions given during the legislative discussion.

The described background is necessary to understand the origin of many of the proposals that were approved and that are challenged in this action.

VIII.- Written by Magistrate Hernández López. On the analysis methodology of the action. - To facilitate the study of the challenged regulations, in the following recitals, the arguments presented by the plaintiffs will be analyzed, dividing the analysis into two main parts in accordance with the approaches presented to the Chamber: a) claims of unconstitutionality due to the form or procedure of the law's formation; and b) reasoning regarding the substance of the matter.

ARGUMENTS OF FORM RELATED TO VIOLATIONS OF PARLIAMENTARY PROCEDURE DURING THE PROCESSING OF THE BILL THAT GAVE RISE TO THE CHALLENGED LAW.

IX.- Written by Magistrate Hernández López. On the constitutionality of article 208 bis of the Reglamento de la Asamblea Legislativa (now 234 bis). Some of the plaintiffs challenge the constitutionality of article 208 bis of the Reglamento de la Asamblea Legislativa -now article 234 bis following the reform that regulation underwent on March 4, 2019-, insofar as that numeral allows the Asamblea Legislativa to apply special procedures for the approval of bills, without previously clearly defining the rules to be followed, considering that the use of these special procedures violates the democratic principle, the principle of legal certainty, the principle of political participation, the principle of representation, as well as the deputies' right of amendment. This group of plaintiffs believes that the omission to regulate in advance the special procedures that will be applied to a bill renders such principles nugatory and limits the necessary participation by all deputies, therefore considering that article 208 bis of the Reglamento de la Asamblea Legislativa is unconstitutional, as is its application or use for the approval of a bill. On this topic, the Chamber has had the opportunity to rule on various occasions, and the common denominator of the jurisprudential criteria has been the recognition of the power that the legislator has to self-regulate its organization and functioning as a Power of the Republic, but also to establish the different legislative procedures they will use in the formation of the law (article 121 subsection 22 in relation to article 9, both of the Constitución Política).

In this regard, the Chamber has indicated that the power to issue the internal regulations of the Legislative Assembly, as well as to reform or interpret them, is part of the "interna corporis" of the intrinsic regulations given by the Parliament itself in use of its most essential powers which, in turn, constitutes one of the basic guarantees derived from the democratic principle: the self-determination of the Parliament regarding its internal actions (see judgment number 8408-99 of 3:24 p.m. on November 3, 1999, and judgment number 2008-07687 of 2:50 p.m. on May 7, 2008, among others); a competence that has been previously recognized by this Court:

"The positivization of the democratic principle in Article 1 of the Constitution constitutes one of the pillars, the core, so to speak, upon which our republican system rests, and in that character of supreme value of the Constitutional Rule of Law State, it must have direct efficacy over the rest of the sources of the infra-constitutional legal order and obviously over the Regulations, from which it follows that the Parliament's power to dictate the norms of its own internal governance (interna corporis) is not only provided for by the Political Constitution in its Article 121, subsection 22), but is consubstantial to the democratic system and specific to the Legislative Assembly as a constitutional power, pursuant to Title IX of the Fundamental Charter, and consequently, ignoring or altering that power would constitute a serious violation of the democratic organization that governs the country [...] The object pursued by the attribution of the competence to self-organize the Assembly is that through it, its procedures of action, organization, and functioning are regulated, and consequently, its internal organization is a matter proper to that competence and, therefore, there is no obstacle to establishing other types of reasonable majorities, on occasion of its exercise, as long as the principles of equality and non-discrimination are respected" (judgment number 0990-92 of 4:30 p.m. on April 14, 1992, and in the same sense, judgment number 1311-99 of 4:42 p.m. on February 23, 1999).

The Chamber has likewise indicated that the Legislative Assembly is free and autonomous to establish its own norms, respecting the fundamental values among which the democratic principle stands out, which, in the context of a fundamentally political and deliberative body, also means the protection of the rights of minorities as a guiding criterion to avoid abuses or the dictatorship of the majorities, without prejudice to the respect that the decisions of the majority must merit, but taking into account that minorities have the right to be heard and to participate with their vote in decision-making, particularly in those acts that, due to their transcendence, configure the essence and reason for being of the representative regime. It must be kept in mind that, by protecting the rights of minorities, a fundamental criterion of democratic coexistence is established, extensive to the entire legal order (externa corporis), without losing sight of the fact that respect for the minority is a fundamental principle of the Costa Rican constitutional order that derives from the very concept of democracy, it being understood that the democracy of Costa Rica is based on a continuous contrast of organized opinions that concretize the principle: "government of the majority with participation of the minority, within a regime of freedom and equality" (see in this sense judgment number 990-92 of 4:30 p.m. on April 14, 1992). For the Chamber, "(…) The object pursued by the attribution of the competence to self-organize the Assembly is that through it, its procedures of action, organization, and functioning are regulated, and consequently, its internal organization is a matter proper to that competence and, therefore, there is no obstacle to establishing other types of reasonable majorities, on occasion of its exercise, as long as the principles of equality and non-discrimination are respected" (see judgment number 990-92 of 4:30 p.m. on April 14, 1992).

Thus, the criterion of this Court is that it is constitutionally valid, possible, and necessary for the Legislative Assembly to issue its regulatory norms, which include the determination of the procedures it deems pertinent for the law-making process; procedures that, as stated, must be respectful of the principles in force in the Costa Rican democracy and the fundamental rights of individuals. Now, specifically regarding the petitioners' questioning of the constitutionality of Article 208 bis of the Regulations of the Legislative Assembly (now 234 bis), it must be indicated that this is not the first time this questioning has been raised before the Chamber, and on previous occasions when this Court has had to analyze the matter, it has stated, in what is relevant, the following:

"IV.- ON THE CONSTITUTIONALITY OF ARTICLE 208 BIS OF THE REGULATIONS OF THE LEGISLATIVE ASSEMBLY. Through judgment number 2008-07687 of 2:50 p.m. on May 7, 2008, this Chamber ruled on the constitutionality of Article 208 bis of the Regulations of the Legislative Assembly, an opportunity in which the majority of the Court, at that time, considered the following:

"V.- CONDITIONS UNDER WHICH THE PROJECT TO ADD AN ARTICLE 208 BIS TO THE REGULATIONS OF THE LEGISLATIVE ASSEMBLY IS SUBSTANTIALLY IN CONFORMITY WITH THE LAW OF THE CONSTITUTION. A) Respect for the democratic principle and free political participation of minorities: This Constitutional Court understands that the project to add Article 208 bis to the Regulations of the Legislative Assembly is in conformity with the Law of the Constitution, as long as it is provided or interpreted that the procedural motion (moción de orden) established therein must be approved by a vote of no less than two-thirds of the total members of that body, since establishing or providing special procedures for the processing of reforms to the Regulations and certain legislative bills involves a reform or modification of the Regulations, that is, of the ordinarily provided procedures, so that to comply with what is established in numeral 121, subsection 22), of the Political Constitution and, above all, to be consistent with the democratic principles and the participation of minorities in making a fundamental or transcendental decision, such a qualified or aggravated majority must be required, which implies obtaining a legislative consensus in which different political-party or ideological orientations concur, for its respect. To the above, it must be added that the observance of the requirements established in interpretative agreement No. 4084 of June 10, 1999 – as it concerns the exercise of the power of reform – guarantees such principles, as this Chamber set forth in Ruling No. 8408 of 3:24 p.m. on November 3, 1999, partially transcribed in the third recital (considerando) of this judgment. B) Observance of the principle of legal certainty (principio de seguridad jurídica): In order to adjust the addition project to the constitutional principle of legal certainty and to avoid any surprise factor, this Court assumes that it must be provided or understood that the motion that reforms the regulations, by establishing a special procedure, must indicate in a sufficiently explicit, clear, and precise manner the various phases or stages in the substantiation of that special iter, so that just as two-thirds of the total members of the Legislative Assembly are required for its determination, the democratic principle and the free political participation of minorities are also respected.

…VII.- COROLLARY. In merit of the foregoing, it is necessary to answer the legislative consultation formulated in the sense that the project to add Article 208 bis to the Regulations of the Legislative Assembly is not unconstitutional, as long as it is understood that the procedural motion (moción de orden) to establish a special procedure must be approved by two-thirds of the total members of the Legislative Assembly and that it must explicitly, clearly, and precisely establish the phases or stages of the special procedure provided" (see judgment number 2008-07687 of 2:50 p.m. on May 7, 2008, number 2008-009579 of 2:11 p.m. on June 11, 2008, and number 2011-015749 of 9:32 a.m. on November 16, 2011, among others).

From the foregoing, it is deduced then that Article 208 bis of the Regulations of the Legislative Assembly constitutes a mechanism to process legislative bills through the special law-making procedures it regulates, constitutionally valid insofar as the procedural motion (moción de orden) proposed to decree a special procedure for a specific legislative bill is approved by two-thirds of the total members of the Legislative Assembly and explicitly, clearly, and precisely establishes the phases or stages of the special procedure decided to be applied. And this is so because, as stated supra, the exercise of the power of internal regulation is a matter that exclusively concerns the Parliament, the sole topic addressed by Article 208 bis of the Regulations of the Legislative Assembly (today 234 bis) being precisely of a regulatory nature, that is, the setting of the guidelines for the legislative procedure; and from this perspective then, the Chamber reiterates its criterion that Article 208 bis of the Regulations of the Legislative Assembly is constitutional (see in this sense judgment number 8408-99 of 3:24 p.m. on November 3, 1999, and number 2005-00398 of 12:10 p.m. on January 21, 2005, among others). Based on what has been said, for the Chamber, the application of Article 208 bis of the Regulations of the Legislative Assembly to parliamentary proceedings is not unconstitutional, as long as it is understood that the procedural motion (moción de orden) for a special procedure complies with what was indicated supra regarding the prevalence of respect for the principles in force in the Costa Rican democracy and the fundamental rights of individuals (see in this sense judgment number 2008-004569 of 2:30 p.m. on March 26, 2008). Thus, contrary to the petitioners' criterion, based on what has been said, the existence of special procedures protected under Article 208 bis of the Regulations of the Legislative Assembly (now 234 bis) and their use in the processing of some legislative bills that conform to the guidelines enumerated in that article is not harmful to the principles of democracy, political participation, representation, and amendment (enmienda), to the extent that the decision to use a special procedure is adopted by two-thirds of the deputies, since approval by that qualified majority implies the protection of the rights of minorities as a guiding criterion to avoid abuses or the dictatorship of the majorities, but at the same time, without prejudice to the respect that the decisions of the majority must merit, allowing minorities to exercise the right to be heard and to participate with their vote in decision-making, particularly in this type of acts that, due to their transcendence, pertain to the essence and reason for being of the representative regime. Consequently, the Chamber reiterates its position that Article 208 bis of the Regulations of the Legislative Assembly, now Article 234 bis, is constitutional under the indicated assumptions.

X.- Authored by Justice Hernández López. On the use of Article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly for the processing of legislative file No. 19.922. The petitioners argue that, pursuant to the provisions of Article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly, the Assembly applied a special legislative procedure to a matter that, in their view, should not have been processed via that procedure because, due to the topic, content, and socio-economic consequences of the bill processed under file No. 19.922, the approval of the bill required a qualified majority and the thorough, better-studied compliance that the ordinary law-making procedure implies. This specific topic has already been subject to this Chamber's review in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, in which the Discretionary Legislative Consultation filed by several deputies regarding the bill processed under legislative file No. 19.922 was heard, and in what is relevant, this Court provided the following:

"(…) Now, from the foregoing, it is evident that the questioned procedure was created based on the provisions of numeral 208 bis of the Regulations of the Legislative Assembly, which establishes the possibility that, by means of a procedural motion (moción de orden) approved by two-thirds of the votes of all members of the Legislative Assembly, special procedures may be created for legislative bills whose approval requires an absolute majority, provided that the democratic principle and the right of amendment (derecho de enmienda) are respected, and it does not involve the approval of administrative contracts, sale of State assets, opening of State monopolies, or international agreements. Thus, this norm seeks to guarantee that legislative bills of interest to the Parliament can be processed without major setbacks, by establishing rules that facilitate their development, as long as the guarantees provided by the same numeral are respected. Having clarified the foregoing, it must then be analyzed whether the special procedure approved by the Legislative Assembly in ordinary session number 37 of June 30, 2016, in application of the provisions of Article 208 bis of the Regulations of the Legislative Assembly, presents or not the defects indicated by the consultants (...) (judgment 2018-005758 of 3:40 p.m. on April 12, 2018).

To perform this analysis, in that judgment, almost the entirety—only as it pertained to that consultation—of the procedure via Article 208 bis that the deputies approved for the processing of the bill in legislative file No. 19.922 was transcribed. For purposes of this unconstitutionality action (acción de inconstitucionalidad), it is indispensable to transcribe it in full so that it serves as a theoretical context for the analysis of the arguments raised by the petitioners. As derived from legislative file No. 19.922, pages 87 and 90, on June 30, 2016, a Procedural Motion (Moción de Orden) was presented in the Plenary in which the following was expressly indicated:

"From several deputies:

So that, in accordance with the provisions of Article 208 bis of the Regulations of the Legislative Assembly, the following special procedure is applied to Legislative File No. 19.922, 'Law for the comprehensive reform of the various pension regimes and related regulations'.

Considering

• 1)That the motion submitted for the consideration of the Legislative Plenary, grounded in Article 208 bis of the Regulations of the Legislative Assembly, finds in turn a constitutional basis which is, ultimately, the legislator's powers to self-regulate legislative procedures in light of the provisions of Article 121, subsection 22), of the Political Constitution.
• 2)That the procedural motion (moción de orden) provided must be approved by a vote of no less than two-thirds of the total members of the Legislative Plenary, which will allow the recording of the fundamental or transcendental decision-making, through a qualified or aggravated majority that implies obtaining a legislative consensus in which different political-party or ideological orientations concur, for its respect.
• 3)That the referred motion provides in a detailed manner the special procedures that the legislative initiative must comply with at all times, defining explicitly, clearly, and precisely the various phases or stages in the substantiation of that special iter, always respecting the principles in conformity with the Law of the Constitution, such as respect for the democratic principle and political participation, following in this procedure the doctrine that the Constitutional Chamber has already defined by establishing: 'The positivization of the democratic principle in Article 1 of the Constitution constitutes one of the pillars, the core, so to speak, upon which our republican system rests, and in that character of supreme value of the Constitutional Rule of Law State, it must have direct efficacy over the rest of the sources of the infra-constitutional legal order and obviously over the Regulations, from which it follows that the Parliament's power to dictate the norms of its own internal governance [...] is not only provided for by the Political Constitution... The object pursued with the attribution of the competence to self-organize the Assembly is that through it, its procedures of action, organization, and functioning are regulated, and consequently, its internal organization is a matter proper to that competence and, therefore, there is no obstacle to establishing other types of reasonable majorities, on occasion of its exercise, as long as the principles of equality and non-discrimination are respected' (judgment number 0990-92, of sixteen hours thirty minutes on April fourteenth, nineteen ninety-two, and in the same sense judgment number 1311-99).

I. PROCEEDINGS IN COMMITTEE

1. CREATION OF A SPECIAL COMMITTEE:

a.- A special committee is created, which shall be responsible for issuing a report (dictaminar) on File No. 19.922, 'Law to rationalize public spending,' which shall be composed of the following deputies: 3 from the Partido Liberación Nacional, 2 from the Partido Acción Ciudadana, 1 from the Partido Frente Amplio, 1 from the Partido Unidad Social Cristiana, 1 from the Partido Movimiento Libertario, and 1 from the fractions of one or two Deputies.

b.- This committee shall have a period of up to four calendar months, counted from its installation, to render the respective reports, and this period may only be extended once, for a maximum period of 7 calendar days, by means of a procedural motion (moción de orden) approved by two-thirds of the members of the Legislative Assembly.

2.- SUBSTANTIVE MOTIONS (MOCIONES DE FONDO):

a.- The motions shall be heard in ascending order of the articles, giving priority processing to substitute text motions. When there are several substantive motions (mociones de fondo) on the same article, they shall be heard in order of presentation.

b.- The proponent of the substantive motion (moción de fondo) may speak on it for a period of five minutes. One Deputy in favor and one against may also take the floor for a period of five minutes each, for each motion.

c.- For the defense of review motions (mociones de revisión), only the proposing deputy may take the floor for five minutes. Motions heard in the last session of the Committee prior to the expiration of the period must be reviewed in that same session. If the review is granted, the matter shall return to the state it was in before voting on the issue that gave rise to it.

d.- Only the Deputy members of the Committee may present procedural motions (mociones de orden), except in the case of appeal motions on the admissibility of substantive motions (mociones de fondo) by the Presidency of the Committee. No Deputy may present more than two procedural motions (mociones de orden) per session. To address these motions, the proposing Deputy may take the floor for a period of up to five minutes; the use of the floor may not be yielded in whole or in part. Regarding procedural motions (mociones de orden) processed by the committee, a review motion (moción de revisión) may be filed, on which no one may take the floor.

e.- The Deputies may appeal the resolutions of the Presidency of the Committee issued regarding this legislative file, immediately after they are issued, for which they shall have a maximum period of five minutes for their defense. In the event of multiple proponents, they may justify their appeal for up to five minutes jointly. If several appeal motions are filed on the same resolution, the proponents may justify them for a period not exceeding five minutes jointly; the use of the floor shall be exercised according to the order of presentation of the appeal motions, and the vote on them shall be taken in a single act. The presidency may take the floor for a period of five minutes.

f.- If, upon expiration of the period to issue a report, substantive motions (mociones de fondo) remain pending to be heard, the period shall be deemed extended by two business days, a period in which the Presidency of the Committee shall schedule the subsequent sessions necessary for hearing the pending motions. During these sessions, the motions shall be submitted to a vote without any discussion.

g.- The review motions (mociones de revisión) that must be heard during this extension shall also not be debated. Motions heard during the last session must be reviewed in that same session, so that all actions taken become final in that session. Once the hearing of motions is concluded, the Presidency shall grant the floor for discussion on the merits to the Deputies who so request, for a period of up to ten minutes. The use of the floor may not be yielded in whole or in part. In any case, the Presidency shall deem the bill discussed no later than 11:30 p.m. on the session subsequent to the start of the discussion on the merits, and shall submit the bill to a vote. However, the Presidency may deem the bill discussed at the moment no Deputy requests the use of the floor.

h.- If, during the consideration of the file in its committee proceedings, a substitute text motion is approved, or when the committee agrees to changes that substantially modify the legislative bill, the Presidency of the Committee shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity, and the consideration of the bill shall be suspended, also proceeding to make the corresponding consultations. If, after eight business days, no response is received to the mandatory consultations referred to in this subsection h), it shall be understood that the consulted body has no objection to make to the bill.

i.- The reports, majority and minority, shall be presented to the Secretariat of the Directorate within 2 business days following the finalization of the vote on the bill in Committee.

j.- One business day after the closing of the period established in this motion for the presentation of the reports, the bill shall be included in the Order of the Day of the Plenary. Before beginning the consideration of the matter, the Presidency of the Legislative Assembly must make the report(s) known to the deputies by the means it deems most opportune. The committee reports shall necessarily include the text of the recommended legislative bill.

3. EXTENSION OF THE PERIOD TO ISSUE A REPORT:

a.- The committee deputies may agree, by means of a procedural motion (moción de orden), to request, on a single occasion, from the Plenary of the Legislative Assembly the extension of the period to issue a report for up to 7 calendar days.

b.- This request must be presented by means of a procedural motion (moción de orden) and shall be heard by the Plenary of the Legislative Assembly with priority over any matter at the time of its presentation, and its approval shall require an affirmative vote of the absolute majority of the deputies present.

4- ORDINARY AND EXTRAORDINARY SESSIONS:

a.- The sessions of this special committee shall have priority over any other permanent, permanent special, or special committee.

b.- This committee shall meet every Monday, Tuesday, Wednesday, Thursday, and Friday from 9:00 a.m. to 12:00 p.m. On Fridays, Saturdays, and Sundays, the Committee may meet from 9:30 a.m. to 11:30 p.m.; however, the committee may modify the schedule established here by agreement taken by the absolute majority of the total members of the Committee.

c.- The Presidency of the Committee may convene all the extraordinary sessions it deems necessary with a minimum of 24 hours' notice.

d.- The sessions of this committee shall be deemed de-convened when the Legislative Plenary agrees to meet extraordinarily at the same time.

e.- In matters not provided for here, the norms and procedures of the Permanent and Special Committees shall apply as pertinent.

II.- Proceedings in the Plenary 1.- Special Committee: For all purposes, the Special Committee created by means of this procedural motion (moción de orden) shall be deemed enabled until the final processing of this bill.

2.- Start of proceedings in the Plenary:

a.- The proceedings in the Plenary shall begin with a general explanation of the text by the report authors. For each report, the signatories may take the floor for a period that, individually or jointly, does not exceed ten minutes.

b.- Once the explanation of the Reports is concluded, the discussion of the bill shall begin.

3.- Substantive Motions (Mociones de Fondo):

a.- Substantive motions (mociones de fondo) shall be received only when they are presented to the Directorate during the first two sessions of discussion of the bill. In the second of those sessions, Deputies may present motions until the time that session ends. The Presidency shall make them known to the Deputies by the means it deems most opportune.

b.- The Presidency of the Legislative Assembly shall determine the admissibility of the substantive motions (mociones de fondo) according to the rules provided in this motion. Likewise, it shall determine their joint discussion, for which it shall group them by deputy. It shall also proceed to group for discussion in a single act identical or reasonably equivalent motions from different Deputies, in which case they shall be grouped by content, regardless of who proposed them. As a general rule, each Deputy may present a single substantive motion (moción de fondo) per article, whether to modify, add, or delete it in its entirety. For "complex" articles, the rules provided below shall be followed. If the article contains several modifications, abrogations, or additions, a single motion may be presented for each modification, abrogation, or addition. In this case, it shall be understood that it is a complex article in the terms indicated by the Constitutional Chamber in judgment No. 3220-00, in which it established that the rule of a single presentation of a motion per modification, abrogation, and addition "may imply that with respect to a single complex article, because it refers to several topics or contains various subsections, the deputy may exercise their right of amendment (derecho de enmienda) with respect to each of such topics or subsections (...)" (Ruling 3220-2000, recital (considerando) XII). Thus, in application of the principle in dubio pro libertate and pro homine, as well as for the benefit of the right of amendment (derecho de enmienda), a complex article is understood as one that regulates within it more than one matter (more than one purpose or theme) or that possesses an enumeration or detail of various contents. In this assumption, articles are included that contain several subsections, a list of definitions, or several paragraphs in which it precisely reforms, repeals, or adds other laws, matters, or regulates different provisions of the same legislative bill.

Each Deputy may present a single motion to introduce one or several new chapters, or a substitute text.

Each Deputy may present a single motion per article of the bill, to add either an article, a paragraph, or a new subsection.

c.- When one or several Deputies present identical or reasonably equivalent motions, they shall be admitted by the Presidency so that they are discussed in a single act, although voted on individually.

d.- When similar motions are presented by the same Deputy, these must be grouped to be discussed in a single act and shall be voted on individually.

e.- When motions are presented that add a new legal institution and others that develop it, the Presidency of the Legislative Assembly shall group these motions, hearing first the substantive motion (moción de fondo) that includes the legal institution, so that if that motion is rejected, those subsequent motions aimed at establishing the qualities of said institution shall be rejected due to accessoriness, by reason of their effective connection. These motions must be voted on individually without any discussion. This rejection is based on the fact that the Committee expressed itself contrary to the creation of the institution, making it irrelevant to subsequently discuss its characteristics. (Ruling 3220-2000. Constitutional Chamber of the Supreme Court of Justice).

f.- Motions whose content is unconnected to the bill shall not proceed.

The content of motions that align with the essential purpose of the bill shall be understood as related (conexo), as the Constitutional Chamber (Sala Constitucional) has repeatedly held.

g.- Once the deadline for submitting substantive motions has expired, the Presidency of the Assembly shall determine the admissibility of the motions in accordance with the rules established herein. In the same resolution, it shall group the motions to be discussed in a single proceeding.

The Presidency may suspend the processing of the file until the respective resolution is issued. Likewise, the Presidency shall make such motions known to the deputies by the means it deems most opportune.

h.- Once the resolution issued by the Presidency on admissibility is final, the substantive motions shall be immediately referred to the Reporting Committee (Comisión Dictaminadora) for its consideration, which must render a report to the Plenary within eight calendar days following receipt of the motions.

i.- To meet the established deadline, the Committee shall consider non-business days as enabled for the purpose of considering the referred motions.

j.- The substantive motions shall be considered in the Committee following the ascending numerical order of the articles.

k.- The substantive motions presented shall be considered as dispensed from reading. Copies of the motions forwarded by the Legislative Plenary must be delivered to each Deputy member of the Committee.

l.- The mover or movers of the motion may speak to the motion for a period of 5 minutes, either individually or jointly. One Deputy in favor and one against may also speak for a period of 5 minutes each.

m.- Identical motions from several Deputies that have been grouped by the Presidency of the Legislative Assembly shall be discussed in a single proceeding, so that all Deputy movers of the different motions may speak within a single five-minute period, whether only one of them addresses the motions or several do. One Deputy in favor and one against may also speak for a period of 5 minutes. Once the motions have been discussed, each one shall be voted on individually. At this stage, the act of the Presidency of the Committee of putting the motions previously grouped by the Presidency of the Legislative Assembly up for discussion is not appealable. The same procedure shall apply to motions from a single Deputy that have been grouped.

n.- Motions for revision (mociones de revisión) may only be submitted by the Deputies who are members of the Reporting Committee (Comisión Dictaminadora). For the defense of the revision, the proposing Deputy or Deputies may speak for a period not exceeding 2 minutes individually or jointly.

o.- Once the deadline to render the report has expired, if motions remain pending consideration, the deadline to render the report shall be automatically extended, the pending motions shall be considered as discussed, and the Committee shall proceed to vote on them one by one. Motions for revision (mociones de revisión) that must be considered during the extension shall also not be discussed. The motions considered during the last session must be revised in that same session, so that all proceedings become final in that session.

p.- Only the Deputies who are members of the Committee may present procedural motions (mociones de orden). No Deputy may present more than two procedural motions (mociones de orden) per session. To address these motions, the proposing Deputy or Deputies may speak for a period that, individually or jointly, does not exceed two minutes.

q.- Deputies may appeal the resolutions of the Presidency of the Committee, issued in relation to this file, immediately after they are issued, for which purpose they shall have a period of five minutes. In any case, if there are several appellants against a single resolution, they shall exercise their right to speak for a total of up to thirty minutes jointly. Each Deputy shall have the right, within that general time limit, to speak for up to five minutes each. The right to speak shall be exercised according to the order of presentation of the appeal motions, and their vote shall be taken in a single proceeding.

4.- Motions for Reiteration (Mociones de Reiteración):

a.- Motions for reiteration (mociones de reiteración) shall be received in two sessions, counted from the moment the Presidency announces to the Plenary that the Report of the Reporting Committee (Comisión Dictaminadora) on the substantive motions has been received. These motions may be submitted by the Deputies up until the time the second session ends. For the purpose of receiving motions, and if that second session is an ordinary session, the Presidency of the Legislative Assembly may extend its conclusion beyond the scheduled time. The Presidency shall make the admitted motions known to the Deputies by the means it deems most opportune.

The Presidency of the Legislative Assembly shall determine the admissibility of the motions for reiteration (mociones de reiteración) according to the rules set forth in this motion. Likewise, it shall determine their joint discussion, for which purpose it shall group them by Deputy, except when they are from several legislators and are identical or reasonably equivalent, in which case it shall group them by their content regardless of their proponent. The Presidency shall make them known to the Deputies by the means it deems most opportune.

The Presidency of the Legislative Assembly shall determine the admissibility of the motions for reiteration (mociones de reiteración) according to the rules set forth in this motion. Likewise, it shall determine their joint discussion, for which purpose it shall group them by Deputy, except when they are from several legislators and are identical or reasonably equivalent, in which case it shall group them by their content regardless of their proponent. The Presidency shall make them known to the Deputies by the means it deems most opportune. A Deputy may present a single substantive motion per article, whether to modify, add to, or delete it in its entirety, even in the case of "complex" articles as provided below. If the article contains several modifications, abrogations, or additions, a single motion may be presented for each modification, abrogation, or addition. In this case, it shall be understood as a complex article in the terms indicated by the Constitutional Chamber (Sala Constitucional) in judgment No. 3220-00, which established that the rule of a single presentation of a motion per modification, abrogation, and addition "may imply that with respect to a single complex article, because it refers to several subjects or contains various subsections, the deputy may exercise his right of amendment (derecho de enmienda) with respect to each one of such subjects or subsections (...)" (Voto 3220-2000, considerando XII).

Each Deputy may present a single motion for reiteration (moción de reiteración) whose underlying substantive motion intends to introduce one or several new chapters, or a substitute text.

Each Deputy may present a single motion for reiteration (moción de reiteración) per article of the bill, whose underlying substantive motion intends to add either a new article, paragraph, or subsection.

b.- When one or several Deputies present identical or reasonably equivalent motions, they shall be admitted by the Presidency to be discussed in a single proceeding, although voted on individually.

c.- When similar motions are presented, they must be grouped to be discussed in a single proceeding and shall be voted on individually.

d.- When motions are presented that add a new legal institution (instituto jurídico) and others that develop it, the Presidency of the Legislative Assembly shall group these motions, considering first the substantive motion that includes the legal institution (instituto jurídico), so that if that motion is rejected, those subsequent motions aimed at establishing the characteristics of said institution shall be rejected due to their accessory nature, by reason of their effective relatedness (conexidad). A rejection that is based on the fact that the Plenary pronounced itself against the creation of the institution, making it irrelevant to subsequently discuss its characteristics. (Voto 3220-2000. Constitutional Chamber of the Supreme Court of Justice).

e.- The reiteration of motions whose content is unrelated (inconexo) to the bill shall not be admissible. The content of motions that align with the essential purpose of the bill or committee report to which they are presented shall be understood as related (conexo), as the Constitutional Chamber (Sala Constitucional) has repeatedly held.

f.- Once the deadline for submitting motions for reiteration (mociones de reiteración) has expired, the Presidency shall determine the admissibility of the motions in accordance with the rules established herein. In the same resolution, it shall group the motions to be considered in a single proceeding. For this purpose, it may suspend the processing of the file until the respective resolution is issued. Likewise, the Presidency shall make such motions known to the Deputies by the means it deems most opportune.

g.- The motions for reiteration (mociones de reiteración) shall be considered in the Plenary following the ascending numerical order of the articles. In the event that motions rejected in Committee and that were not discussed are reiterated, they shall have priority in being considered by the Plenary over the motions that did receive discussion in Committee.

h.- The motion for reiteration (moción de reiteración) is a procedural motion (moción de orden) and its movers shall have a period that, individually or jointly, does not exceed five minutes. If approved, the Plenary shall be considered converted into a Committee of the Whole (Comisión General) to consider the attached substantive motion, for which all Deputies who so request may speak for up to a period of five minutes each.

i.- Motions for reiteration (mociones de reiteración) and revision (revisión) shall be considered dispensed from reading. In any case, the Presidency of the Legislative Assembly shall instruct the Secretariat of the Directorate to provide the legislators, on the internal network, with the immediacy required by the case, a compendium of the motions for reiteration admitted and the order in which they shall be considered.

5.- Other procedures and motions:

a.- Only one motion seeking to return the bill to Committee may be presented per session. Only the mover or movers shall speak for a period not exceeding five minutes individually or jointly.

b.- Only five procedural motions (mociones de orden) other than those for reiteration shall be processed per session. To defend these motions, the mover or movers shall have the right to speak for a period not exceeding five minutes individually or jointly. Both in the procedure followed in the Plenary and in Committee, motions intended to alter or modify the order of the day shall not be receivable.

c.- The deputy has the right to request a revision (revisión) of the declarations, agreements, and resolutions adopted by the Assembly. The revision is admissible only once and must be requested no later than immediately before the approval of the respective minutes at the following session. However, in the case of decrees and agreements definitively approved at the end of a period of ordinary or extraordinary sessions, the revision must be presented in the same session in which such approval was made. If the Assembly grants the revision, the matter shall return to the stage it was in before the question that gave rise to it was voted on.

The motions for revision (mociones de revisión) shall be considered at the place occupied by the matter whose revision is requested; the Presidency shall determine the opportune moment for the consideration of the revision within the respective chapter.

When the Assembly considers the revision of a matter of any nature, the deputy who requested it may speak to address it for a non-extendable period of two minutes, except in the case of the revision of motions for reiteration (mociones de reiteración), which shall be considered without any discussion.

d.- Deputies may appeal the resolutions of the Presidency of the Legislative Assembly, issued in relation to this file, immediately after they are issued, for which purpose they shall have a period of five minutes. In any case, if there are several appellants against a single resolution, they shall exercise their right to speak for a total of up to ten minutes jointly. Each Deputy shall have the right, within that general time limit, to speak for up to five minutes each. The right to speak shall be exercised according to the order of presentation of the appeal motions, and their vote shall be taken in a single proceeding.

e.- In any case, both the Presidency of the Legislative Assembly and the Reporting Committee (Comisión Dictaminadora) may continue with the processing of the file when, due to material impossibility, the technical secretariat does not have the minutes ready, with their approval remaining pending for the moment they become available.

6.- Discussion and Voting of the Bill a.- Once the consideration of motions for reiteration is concluded, the discussion on the merits shall continue, for which purpose each Deputy may speak for a period of 15 minutes in the first debate and 10 minutes in the second debate.

b.- Once the report on substantive motions processed by the Reporting Committee (Comisión Dictaminadora) is received, the Legislative Plenary shall have twenty sessions to consider the motions for reiteration (mociones de reiteración) and discuss the bill on its merits.

c.- If, upon expiration of the sessions, motions for reiteration (mociones de reiteración) or substantive motions attached to approved reiterations remain pending consideration, the Presidency shall allocate the necessary subsequent sessions for the consideration of the pending motions. During these sessions, the motions shall be submitted to a vote without any discussion. The motions for revision (mociones de revisión) that must be considered during this extension shall also not be discussed. Once the consideration of the motions is concluded, the Presidency shall grant the floor for the discussion on the merits to the Deputies who request it for a period of up to ten minutes in both first and second debate. In any case, the Presidency shall consider the bill discussed no later than 11:30 p.m. of the session following the start of the discussion on the merits and shall submit the bill to a vote. However, the Presidency may consider the bill discussed at the moment no Deputy requests the floor.

7.- Extraordinary Sessions of the Plenary.

The Legislative Plenary shall hold extraordinary sessions on Mondays, Tuesdays, and Wednesdays starting at 9:00 a.m. until 12:30 p.m. to consider this bill.

8.- Extraordinary and Ordinary Sessions of the Committee The Reporting Committee (Comisión Dictaminadora) shall hold extraordinary sessions solely for the consideration of this bill on Mondays, Tuesdays, and Thursdays 5 minutes after the conclusion of the Plenary session, and on Wednesdays 5 minutes after the conclusion of the sessions of the Committees with Full Legislative Power. Furthermore, it shall hold sessions every day starting at 9:30 a.m. until 12:30 p.m. On Fridays, Saturdays, and Sundays, the Committee shall hold sessions from 9:30 a.m. until 11:30 p.m., with the Committee being able to modify the established schedule of sessions by agreement adopted by an absolute majority. The sessions of this Committee shall be considered deconvened when the Legislative Plenary agrees to hold extraordinary sessions in the morning. In any case, it may continue to hold sessions thirty minutes after the conclusion of the Plenary session, whether ordinary or extraordinary." (see folio 52 of legislative file No. 19.922).

In legislative file No. 19.922, it can be observed that the previous procedural motion was considered in ordinary session No. 37 of the Plenary of the Legislative Assembly on June 30, 2016, and was approved by 39 deputies in favor and 10 against, with the following being stated textually at the time of voting:

"Those who agree that it be processed under article 208 bis according to the motion presented to file 19.922 for the pensions of the Judicial Branch (Poder Judicial) in the terms explained and contained in the motion shall indicate so by standing. Forty-nine ladies and gentlemen deputies present; for its approval, thirty-eight votes are required. Thirty-nine deputies in favor, ten against, approved" (folio 90 of legislative file No. 19.922).

In judgment number 2018-005758 of 3:40 p.m. on April 12, 2018, the Chamber analyzed the questions of constitutionality that, at that time, were raised by the consulting deputies and which referred to the following:

• a)that during the processing of the bill in Committee, only the deputies who were part of that body could raise procedural motions (mociones de orden); b) that the approved procedure established that the legislators could only present one substantive motion per each article of the bill, for the purpose of adding or deleting a new paragraph or subsection; c) that substantive motions would be receivable only when presented to the Legislative Directorate during the first 2 sessions of discussion of the bill, with each deputy having only 5 minutes to defend them. The consulting persons stated - at that time when they filed the consultation - that the effects of the aforementioned situations implied an injury to the principles of equality, reasonableness, and proportionality, democratic participation, as well as the right of amendment (derecho de enmienda). Upon analyzing these arguments in the referred judgment, the Chamber stated the following:

"From the foregoing, it is clear that in legislative file number 19.922, a broad procedure for the presentation of motions was established, which, although it indeed provides for some particularities regarding the number of motions, defense time, and the moment in which they may be raised, the truth is that this does not necessarily entail an injury to the principles and rights invoked by the consultants. In that sense, the fact that it is provided that during the proceedings in Committee, only the legislators who are part of it may present procedural motions (mociones de orden), does not imply a violation of the principles of equality and democracy, nor of the right of amendment, because it is the deputies who are members of the Committee who know which issues should be raised through this type of motion, since they are the ones who have been present during this stage of the legislative process and, therefore, have greater knowledge about the procedural aspects of the Committee, such as, for example, granting a hearing to certain organizations; besides, the member deputies are not in the same condition as the non-members, hence the invocation of the principle of equality is inappropriate, for the elementary reason that they are not in the same situation or condition. Note that the Rules of Procedure of the Legislative Assembly prevent deputies who are not members of Committees with Full Legislative Power, Permanent, and Special Committees from presenting motions for revision (mociones de revisión) (see articles 3, 4, 5 subsections 5) and 6), 6 and 7 of the Rules of Procedure of the Legislative Assembly). Likewise, limiting the number of motions that can be presented, the time available to defend them, as well as the moments in which they can be raised, is not unconstitutional, insofar as it responds to the rules established for the particular legislative file, based on article 208 bis, and whose purpose is to expedite its development and avoid unnecessary delays in the processing of a procedure that deals with a matter of relevance. On the other hand, it should be noted that from the study of the legislative file, it is clearly evident that both in the Committee and in the Plenary, the deputies had the opportunity to extensively discuss different aspects related to the legislative file that were of interest to them, even being able to bring in representatives of various institutions such as the School of Economic Sciences of the University of Costa Rica, the Superintendency of Pensions, the Judicial Branch (Poder Judicial), among others, through procedural motions (mociones de orden). Similarly, it is evident that during the sessions of the Legislative Plenary on September 4 and 5, 2017, substantive motions were presented whose admissibility was resolved by the Presidency of the Directorate through a resolution read in session number 67 on September 19, 2017, and which were subsequently discussed in the Plenary sessions on September 20 and 28, 2017. Finally, it is considered proven that by resolution of the Presidency of the Directorate, adopted in session number 78 on October 11, 2017, the admissibility of the motions for reiteration (mociones de reiteración) raised by the deputies was resolved, and these were analyzed by the Plenary in the sessions of October 17, 18, 24, 25, and 30, 2017. Now then, the Chamber considers that from the foregoing, it is clearly evident that the deputies had the opportunity to exercise the right of amendment of the consulted bill, as well as to raise the procedural, substantive, and reiteration motions they deemed pertinent, hence it is considered that there has been no injury whatsoever to the principles and rights mentioned by the consultants." Thus, in relation to the issues stated above, which were already analyzed in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, and are now reiterated in this action, the petitioners must abide by what was stated therein, since the Chamber considers that there is no new reason or argument in relation to those specific points that would imply a modification of the criteria already expressed and, therefore, consequently, regarding those specific extremes, the procedure provided for in article 208 bis of the Rules of Procedure of the Legislative Assembly (now 234 bis), conforms to the Law of the Constitution. In addition to the foregoing, it must be remembered that the Chamber has been emphatic that it should not interfere with the Parliament's right of self-regulation, unless the Law of the Constitution is violated, that is, the set of constitutional values, principles, and norms. In this way, the powers of the Chamber in this matter are exercised under the perspective of an arbitrator, who moderates and contains excesses but does not interfere with an intrinsic constitutional power granted to another constitutional body, so that only in the face of evident or gross violations of the constitutional principles governing parliamentary law would its intervention be legitimate (see judgments of this Chamber numbers 2019-002284 of 9:15 a.m. on February 8, 2019, 2007-018139 of 3:30 p.m. on December 18, 2007, and 2000-03220 of 10:30 a.m. on April 18, 2000, among others).

XI.- Drafted by Magistrate Castillo Víquez. Regarding other allegations relating to the application of article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly to legislative file 19.922. Now then, it should be noted that the actions of unconstitutionality under study go beyond what was raised by the Congresspersons in the Discretionary Consultation that gave rise to judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018. In this sense, the petitioners indicate that the motion to process legislative file 19.922 under the abbreviated procedure of article 208 bis (now 234 bis) was introduced on June 30, 2016, in Ordinary Session No. 37 of the Legislative Plenary and affirm that, although authorization was sought to apply a procedure that is exceptional and rigorous, when making the proposal, it was not subjected to the procedure established for raising this type of proposition; a procedure that is also extraordinary and formal. In this sense, it is the petitioners' opinion that there is injury to the parliamentary procedure due to the following:

• a)the proposal was introduced as if it were a "procedural motion (moción de orden)" when this is not appropriate for this type of proposal; b) the proposal was included in the space for Second Debates of the Plenary, despite it being a matter of "Interna Corporis," and therefore should have been seen in the first part of the Plenary session, which refers to matters of internal regime; c) action was taken contrary to articles 121 subsection 22) and 124 of the Political Constitution and 35, 153, 205 (now 231), 207 (now 233), 208 (now 234), and 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly.

Since the petitioners have alleged this, the Chamber must proceed to analyze these arguments, and for this purpose, it is essential to transcribe the articles of the Rules of Procedure of the Legislative Assembly mentioned by the petitioning party in order to understand what is being argued:

"Article 35.- Order of the session and Parliamentary Agenda The order of the plenary session is as follows:

1. Discussion and approval of the minutes.

2. Suspension of rights and guarantees, in accordance with subsection 7) of article 121 of the Political Constitution.

3. Matters of the Internal Regime.

4. Matters of control, oversight, and other political content, which shall be processed in the following order:

• a)Correspondence report.
• b)Appointments, resignations, and swearings-in referred to in subsections 3), 8), and 12) of article 121 of the Political Constitution.
• c)Permits and authorizations established in subsections 5) and 6) of article 121 of the Political Constitution.
• d)Matters provided for in subsections 9), 10), and 24) of article 121 of the Political Constitution and the appointments and reports of investigative and special committees of subsection 23) of article 121 of the Political Constitution.
• e)Appeals referred to in article 28 of these Rules.
• f)Resources of insistence referred to in article 203 of these Rules.
• g)Matters provided for in subsections 16) and 21) of article 121 of the Political Constitution.
• h)Propositions of the deputies.
• i)Other matters not included in the preceding sub-subsections, at the President's discretion.

5. Discussion of bills, which shall be considered in the following order:

• a)Third debates, referred to in subsection 7 of article 195 and in article 168 of the Political Constitution.
• b)Second debates.
• c)First debates.

If sixty minutes have elapsed from the consideration of the matters indicated in subsections 1, 2, 3, and 4, without exhausting them, their discussion shall be suspended to immediately consider the bills pursuant to subsection 5. During these first sixty minutes, bills shall not be considered.

Matters that, by constitutional or regulatory provision, must be considered within a specific period, shall be included in the corresponding point of the order of the session, in a place of preference, until their final processing.

The Parliamentary Agenda shall be constituted by all the matters that the Plenary is competent to hear and decide. For the purpose of their ordering, these shall be placed in the corresponding chapter of the order of the session in the following manner:

a. Unanimous affirmative committee reports.

b. Affirmative majority committee reports.

c. The respective committee reports shall be ordered according to the chronological order of their presentation before the Department of the Secretariat of the Directorate.

(The preceding subsection thus amended through session No. 145 of February 21, 2012) d. Projects dispensed from all procedures shall be processed in the manner provided for unanimous affirmative committee reports, and shall be considered as presented on the date the motion of dispensation was approved.

(Thus amended through Agreement No. 6040 of December 10, 2001)".

"Article 153.- Procedural Motion (Moción de Orden) At any stage of the debate, procedural motions may be presented, unless these Rules expressly prevent it. These motions shall be considered immediately after being presented and accepted as such by the President. To explain the content of the motion, the mover or movers shall have a period that, individually or jointly, does not exceed five minutes.

(Modified through session No. 5020, of November 8, 1999)" "Article 205.- Procedure for parliamentary agreements Projects for the issuance of agreements concerning the internal regime of the Assembly, as well as draft agreements that must be adopted, in use of the powers enumerated in subsections 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23), and 24) of article 121 of the Political Constitution, must be submitted in writing, signed by the deputy or deputies who initiate or accept them; or by the relevant Minister, when the project is an initiative of the Executive Branch. Likewise, they must be read by the Secretariat." The Assembly will hear and resolve them, without adhering to the procedures set forth in the preceding article.

However, the Presidency shall order that the bill be referred for study to a Commission specially appointed for the case, setting a reasonable time limit of no fewer than three business days to report, when the matter is complex or when so provided by this Rules of Procedure.

(Its numbering was updated by session No. 31 of March 4, 2019, which transferred it from former article 205 to 231)” “Article 208.- Prohibition of individual exception (Inderogabilidad singular) Except in cases where the Rules of Procedure itself expressly so establishes, motions aimed at its non-application to specific cases shall not be admissible.

(Its numbering was updated by session No. 31 of March 4, 2019 , which transferred it from former article 208 to 234)” “Article 208 bis.-Special Procedures (Procedimientos Especiales) By means of a motion of order, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures for processing amendments to its Rules of Procedure and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the vote required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment.

(Thus added by agreement No. 6231-04-05 of March 8, 2005).

(Its numbering was updated by session No. 31 of March 4, 2019 , which transferred it from former article 208 bis to 234 bis)”.

Article 207 is transcribed below and not in the usual order, for the reasons that will be stated hereafter:

“Article 207.- Amendments to the Rules of Procedure (Reformas al Reglamento) Any total or partial amendment to this Rules of Procedure, as well as the interpretation of any of its provisions, requires, for its approval, two-thirds of the votes of the total membership of the Assembly.

Amendments shall be carried out through the procedure established in article 124 of the Political Constitution.

(Its numbering was updated by session No. 31 of March 4, 2019 , which transferred it from former article 207 to 233)” As evidenced by the National System of Current Legislation (Sistema Nacional de Legislación Vigente, SINALEVI) and as affirmed by the plaintiffs, former article 207 of the Rules of Procedure of the Legislative Assembly, which now corresponds to numeral 233, was interpreted through parliamentary agreement No. 4084, adopted at session No. 24 of June 10, 1999, and published in La Gaceta No. 129 of July 5, 1999; according to which:

“Single Article.—The processing of bills for the total or partial amendment of the Rules of Procedure of the Legislative Assembly shall be carried out in accordance with the following provisions:

1. The processing of bills for the total or partial amendment of the Rules of Procedure of the Legislative Assembly shall begin with the reading of the bill. Subsequently, a maximum of fifteen minutes shall be granted to the proponents to provide a general explanation of the text.

2. Once the explanations are concluded, the hearing of substantive motions (mociones de fondo) shall proceed. These motions shall be heard directly by the Plenary.

3. Motions shall be discussed in the order of their presentation. However, the President may establish the order of discussion of the motions in accordance with the provisions of articles 124 and 163 of the Rules of Procedure.

4. Each deputy shall have the right to speak for fifteen minutes per motion.

5. Once the hearing of substantive motions is concluded, each deputy may speak for one hour to address the substance of the bill.

6. When the complexity of the bill or the number of motions presented warrants it, the President may order, at any stage of the debate, that the bill be referred to a Commission specially appointed for the case. In this case:

• a)The motions presented shall be discussed in the order of their presentation. The President of the Commission shall have the powers referred to in numeral 3.
• b)The Commission must report to the Plenary within the reasonable period set by the President of the Assembly, which may not be less than three days. The Commission may request from the President of the Assembly, on one occasion only, an extension of the period. If the President denies the extension, an appeal may be made to the Plenary, which shall definitively resolve as established in article 156 of the Rules of Procedure.
• c)If, upon the expiration of the period for rendering the report, or its extension, there are still motions pending to be heard, these shall be put to a vote without any discussion.

7. Once the report is rendered, new substantive motions shall only be admitted when they are presented to the Board of Directors (Directorio) during the six business days following the date on which the Commission's report was rendered.

8. The substantive motions shall be referred to the Commission that reported, which must render a report to the Plenary within the three business days following the expiration of the period referred to in the preceding numeral. If, upon the expiration of the period for rendering the report, there are still motions pending to be heard, these shall be put to a vote without any discussion. The motions determined by the Commission shall be incorporated into the text.

9. Substantive motions rejected by the Commission may be reiterated by their proponents before the Plenary, if it constitutes itself as a committee of the whole (comisión general) to hear them. The motion to constitute the Plenary as a committee of the whole shall be put to a vote, after an explanation of the matter by the proponent for a maximum of ten minutes. 10. Once the bill is approved, it shall be published in the Diario Oficial”.

This agreement was challenged before this Chamber through unconstitutionality action number 04-001310-0007-CO on the grounds that its text had not been duly presented as a draft agreement, nor published, or exempted from procedural steps (dispensado de trámites) (article 177 of the Rules of Procedure), and therefore the plaintiffs considered that, in this specific case, there was a non-application of the provisions of legislative procedure (articles 205 of the Rules of Procedure and 124 of the Political Constitution), which is expressly prohibited in regulatory numeral 208. When analyzing the matter, the Chamber issued judgment number 2004-014986 at 12 hours 17 minutes of December 24, 2004, which dismissed the aforementioned unconstitutionality action, stating, in pertinent part, the following:

“(…) It is thus clear that the action of the Legislative Assembly is in accordance with law, by virtue of the provisions of the constitutional norms and article 207 of the Rules of Procedure of the Legislative Assembly itself, which allows, through legislative agreement, the interpretation of the norms of the Parliamentary Statute. So, in the approval of agreements such as the one challenged, the self-regulatory power (potestad autonormativa) is being exercised in one of its sub-aspects: the interpretation of internal norms, which derives directly from the provisions of article 121, subsection 22) of the Constitution, in relation to articles 9 and 124 of the same body of norms, which enshrine the exclusive authority of the Legislative Assembly to establish its own rules of procedure for its internal governance through a qualified vote. It is not a matter of the power to legislate, established in article 121, subsection 1) of the Political Constitution, in one of its forms: authentic interpretation of laws. By virtue of the foregoing, it is appropriate to dismiss the first constitutional objection raised by the plaintiffs regarding the violation of article 121, subsection 1) of the Fundamental Charter (…) In the specific case, agreement number 4084 is not unconstitutional, since it was adopted by the Legislative Assembly in accordance with the power of self-regulation it holds by virtue of the provisions of article 121, subsection 22) of the Political Constitution, and because –as will be seen below– the procedure established for the total or partial amendment, or interpretation of the Rules of Procedure of the Legislative Assembly is carried out in accordance with the pertinent constitutional and regulatory norms. Likewise, as explained by the President of the Legislative Assembly, the challenged agreement was adopted in accordance with the requirements of the Political Constitution and the internal regulations themselves, that is, after extensive debate and broad participation by the legislators, who proposed a series of substantive motions that resulted in amendments to the bill, culminating in approval by a unanimous vote of the deputies present at the session of June 10, 1999, i.e., with the vote of forty-eight deputies, surpassing the required majority –visible at folios 52 to 53 of the file-. By virtue of the foregoing, the other claim of unconstitutionality alleged by the plaintiffs must be rejected, with respect to the disrespect of essential legislative procedures, since from its proposal by the Legislative Board of Directors, the process of its discussion and final approval by unanimity was carried out safeguarding the democratic principle; it is an agreement linked to the internal regulations of the Legislative Assembly that depends exclusively on the will of the legislators. Likewise, it must be added that the constitutional and regulatory procedures for its approval were fully complied with (…). It is thus that there is no constitutional or regulatory norm that specifies the procedure to be followed for hearing bills for the amendment or interpretation of the Rules of Procedure of the Legislative Assembly, so diverse parliamentary practices have occurred, which have allowed the presentation and discussion of an unlimited number of substantive motions directly in the Legislative Plenary, without a fixed period for this, and various rules for the use of the floor have also been applied. In this sense, the President of the Legislative Assembly is correct in pointing out that if the legislator does not provide for or eliminates obscure regulations or legislative practices, it incurs an evasion or non-compliance with its constitutionally assigned duties; therefore, in search of a solution to this situation, the Legislative Plenary –not its Board of Directors– adopted the challenged interpretation unanimously (after extensive debate in which everyone had the opportunity to participate), which sought to define the procedure to be followed for legislative amendments and interpretations, in order to ensure the processing and presentation of these bills. Therefore, it is congruent with the parliamentary legal order that an interpretive agreement such as the one challenged fills the gaps present in legislative procedures, this action not being contrary to constitutional or regulatory procedures, quite the opposite, by way of interpretation a legislative agreement is adopted in strict adherence to the constitutional norm -article 124-, which precisely delimits and integrates the written and unwritten norms that have formed the procedure for the amendment or interpretation of the Rules of Procedure of the Legislative Assembly. (…) It is thus, as can well be affirmed, that this interpretation owes itself more than to a social reality, to a need for legal certainty in legislative procedures, so that these are clear, consensual, and do not obey passing political opportunities. In this way, legislative agreement 4084 is not a literal interpretation of articles 205 and 207 of the Rules of Procedure of the Legislative Assembly, since that would not solve the practical problems that arise in the processing of bills for the amendment and interpretation of the Assembly's internal regulations. However, it cannot be considered an innovative activity –creating new norms–, as the plaintiffs denounce, given that what is done is an integration of all the elements in an interpretation, within the existing legal framework, that is, it orders and systematizes the practice and regulatory norms applicable to amendments to the Rules of Procedure of the Legislative Assembly, –respecting in full– the powers of the legislators (right of amendment, free and broad participation in parliamentary debate), issued in accordance with the power of self-regulation of the legislators (articles 121 subsection 22) and 124 of the Political Constitution). It is not a matter of superimposing provisions from other extraordinary or external procedures onto the internal parliamentary regulations, so that the approved procedural norms do not overlap, do not have priority, and are not above the existing norms; they are complementary norms that fill a deficiency in the norms.

X.- Note how the referral to the regulatory norms is clear in the procedure for processing bills for the amendment and interpretation of the Rules of Procedure of the Legislative Assembly established in legislative agreement number 4084. Core aspects of the procedure followed up to this day in the discussion of proposals for these bills have been respected and maintained, as will be seen below. First, the agreement does not refer to article 124 of the Constitution, but to article 124 of the Rules of Procedure, which is the one that authorizes the Presidents of permanent ordinary, permanent special, and special legislative commissions to discuss in ascending order the substantive motions presented to a bill. Second, the basic principles established in article 124 of the Fundamental Charter are not disrespected; quite the contrary, with the challenged interpretive agreement, the proposals for amendments to the rules of procedure shall follow the proper procedure of legislative agreements, which in simplified form is as follows: the proposal is presented by one or several deputies; it is read, unless the Legislative Assembly approves a motion to exempt from procedural steps (dispensa), by the affirmative vote of two-thirds of the deputies present; the President of the Assembly has the option of allowing its discussion directly in the Plenary or sending it to a special commission, which is given a period of no less than three days to render its report; the draft legislative agreement is heard in the Chapter on Internal Governance (Régimen Interior). In this procedure, deputies may present new motions or reiterate those rejected in commission, with the latter taking priority over the former. The deputy has the right to speak for fifteen minutes on each motion, which are approved by an absolute majority of the deputies present. To address the substance of the proposal, each legislator has a period of sixty minutes. Third, participation and debate are not being restricted; the procedure is practically maintained unchanged, with the sole exception that legislators are now allowed to reiterate substantive motions in the plenary, in the event that the bill is analyzed by a special commission. Consequently, the action must also be dismissed with respect to the alleged creation of a new legislative procedure.

XI.- ON RESPECT FOR DEMOCRATIC PRINCIPLES IN THE PROCEDURE ESTABLISHED IN LEGISLATIVE AGREEMENT NUMBER 4084. Finally, we refer to the alleged violation of democratic principles. The regulation of the organization, functioning, and procedures of an organ vital to the existence of the democratic system is a topic of utmost importance. Therefore, the internal regulations of the Legislative Assembly must be inspired by democratic values and principles, in such a way as to foster and achieve institutional balances between the majority party and the opposition, and emerging forces; among the organs of the State and especially with the Executive Branch; between mechanisms for agreeing and rules for disagreeing; between the possibility of adopting political decisions and the guarantee of an effective and responsible opposition; and between the power to legislate and other functions that the Political Constitution imposes on Parliament, in particular the function of political control, all of which had already been considered by this Court previously, as indicated in judgment number 0990-92, in the citation transcribed in Considerando III.- of this judgment. Thus, among the fundamental principles that must be respected for legislative agreements to be carried out (without this implying an exhaustive and closed list), are the participation of the various political groups that make up Parliament, under conditions of equality and freedom, in addition to the due publicity of the matters being processed, so that they are the product of dialectic between the majorities and minorities. The aim is that through legislative procedures, the democratic principle is fulfilled: the integration of diverse political interests, which justifies certain matters being reserved for Parliament (the case of the imposition of sanctions and the establishment of taxes, for example).

XII.- Agreement 4048 is not contrary to democratic principles, since it does not restrict the participation of deputies and the debate on motions, by guaranteeing the right of amendment, the use of the floor in defense of motions, and the right of majorities for decision-making. In this way, the agreement is more favorable and grants greater guarantees in respect of the democratic principles that should inform legislative procedures, since motions that could not be heard by the Commission due to the expiration of the time limit may be voted on without discussion, and even, in case of rejection, may be reiterated in the Plenary. Previously, motions were rejected because it was interpreted that the Plenary was incompetent due to time; now, by way of interpretation, an advance is made in the observance of democratic principles. By analyzing and discussing motions in ascending order and by order of presentation, manipulations that inhibit the scrutiny and analysis of controversial issues –as the plaintiffs affirm– are not possible, because the parameter used for discussion is objective, in order to avoid situations of privilege, so that the norm seeks to give equal treatment to all deputies. Based on these considerations, the alleged violation of democratic principles lacks support, and must –consequently– be dismissed” (judgment number 8408-99 at 15:24 hours of November 3, 1999)”.

From the foregoing, it is then clear that agreement 4084 is valid and constitutional, it being understood that the interest held by the legislator with that agreement was to better order and clarify the work procedure and, for this Court, it respected democratic principles since it did not restrict the participation of the female deputies and male deputies nor the debate on motions, the right of amendment was guaranteed, the use of the floor in defense of motions, and the right of majorities for decision-making. Now then, precisely in that same line of ordering legislative work, it is noted that, subsequently, in the plenary session of the Legislative Assembly No. 47 of Thursday, July 29, 2004, and as a kind of complement along the same lines as the previous agreement, this other was approved:

“Deputy Vargas Fallas, female deputies and male deputies, you may observe that today's order of the day (orden del día) is perhaps different from previous days.

We had spoken with the Fraction (Fracción) leaders to reorder the order of the day somewhat, especially in the chapter on Internal Governance (Régimen Interno). You may note that in the matters of Internal Governance, the amendments to the Rules of Procedure of the Legislative Assembly appear first, since several months ago a motion of alteration (moción de alteración) was approved that placed these draft agreements thus in the order of the day.

Next, there were about thirty motions of order of all kinds: motions of order, motions of postponement (mociones de posposición), motions to exempt from procedural steps (mociones de dispensa de trámites), extensions for special commissions, and others, which this Presidency took it upon itself to instruct the Secretariat of the Board of Directors so that in the chapter on internal governance and following the amendments to the Rules of Procedure, motions may be placed by type, by kind of motions.

In point a) I mentioned amendments to the Rules of Procedure, point b) motions of order. Within the motions of order, the motions of postponement that are indicated there as none would appear. Then, the motions of order pursuant to article 153; then, the extensions for special commissions and; lastly, the motions to exempt from procedural steps. This is so that each of the male deputies and female deputies know where the different motions of order will be placed in the chapter on internal governance.

Regarding the motion presented by Deputy Vargas Fallas some weeks ago, this Presidency, in the use of the powers granted by article 153 and, duly advised by the advisory body of the Secretariat of the Board of Directors, placed Deputy Vargas Fallas's motion, not as a motion of order, Deputy, but as a proposition by deputies since the content was not about the order, but rather about the substance in the procedural steps that the Special Commission referred to in this motion is processing.

So, Deputy, as with the postponements, the same as the one we just considered for the aircraft overflight permit, I also request that in order to hear it in the future we may propose the postponement.

You will see, male deputies and female deputies, that no motion of postponement appears. The reason for not appearing is that, since motions of postponement are a motion that has the same effect as a motion of alteration, but only for the day being processed, this Presidency considers that a motion of postponement that has been presented but has not been discussed or voted on the day itself, should be archived, and the deputy who wishes, in the future, to propose a new motion of postponement should do so the next day, in order to clean up the agenda in the chapter on Internal Governance.

Thus clarified, then know that as of today the Secretariat of the Board of Directors will have clear instructions so that the order of the day be structured in the manner that appears today in the order of the day.

Thank you, male deputies and female deputies”.

From both agreements, then, an intention of the legislator to order its work, to favor greater clarity and transparency in its function of legislating, and to ultimately give practical content to the democratic principle can be interpreted. It is known that the primary purpose of the order of the day is to contribute to the parliamentary procedure, ordering the matters that must be addressed in a session, without distinction of the period in which it is, whether ordinary or extraordinary, and, therefore, in this succession of ideas, it is logical that one would want to prepare it with the greatest possible clarity and precision, always under the assumption that the arrangement of the order of the day is an activity pertaining to the “interna corporis” of the Legislative Assembly, this being so determined in the Rules of Procedure, which in this regard indicates article 35: “... The Parliamentary Agenda (Agenda Parlamentaria) shall be constituted by all matters that the Plenary is competent to hear and decide...” and which the Chamber has recognized as part of the self-determination proper to Parliament; now then, this, yes, always provided that, as stated, the internal regulations of the Legislative Assembly respect democratic values and principles, in such a way as to foster and achieve institutional balances between the majority parties, the opposition, the emerging forces, and the minorities, all in the interest of allowing the exercise of the democratic principle, of participation, and of representation.

The plaintiffs allege that if parliamentary agreements No. 4084 adopted at session No. 24 of June 10, 1999, and the one issued at Session No. 47 of Thursday, July 29, 2004, are in force and are integrated into the Rules of Procedure of the Legislative Assembly as interpretive agreements thereof, then their observance becomes mandatory, from which the legislator's intention to process via the procedure of 208 bis, legislative file 19.922 would not escape, bearing in mind that the Rules of Procedure of the Assembly is a parameter of constitutionality and that the approval of a special procedure to process a specific file -such as 208 bis (now 234 bis)- implies an amendment to the rules of procedure. However, they allege that the fact that in ordinary session No. 37 of the Legislative Plenary of June 30, 2016, the proposal was presented to give fast-track processing to legislative file 19.922, without submitting it to the Plenary for consideration -following the order and form established both in the rules of procedure and in the indicated interpretations-, results in a substantial violation of the procedure. They add that article 205, now 231 of the Rules of Procedure, establishes that bills for the issuance of agreements concerning the internal governance of the Assembly -which is the case under study since the approval of a special procedure to process a file is an agreement concerning the internal governance of the Assembly-, must be presented in writing, signed by the deputy or deputies who initiate or support them, and must be read by the Secretariat; agreements that, furthermore, aim to amend the rules of procedure via the path allowed by 208 bis. Secondly, the agreements indicated above -No. 4084 adopted at session No. 24 of June 10, 1999, and the one issued at Session No. 47 of Thursday, July 29, 2004- establish the manner in which such types of proposals will be arranged in the order of the day, and, lastly, article 35 of the rules of procedure establishes that the plenary session begins with: 1) Discussion and approval of the minutes; 2) Suspension of rights and guarantees, in accordance with subsection 7) of article 121 of the Political Constitution and 3) Matters of Internal Governance, it being precisely at this point of the agenda where the proposal in question should have been placed, which was not respected in the case under study since in legislative file 19.922 said proposition was introduced to the Plenary on June 30, 2016, without any prior notice, was not presented in writing, was not read by the Secretariat, nor subjected to the corresponding procedure, and moreover, all this was done without respecting the principle of parallelism of forms according to which things are undone in the same way they are made. They add that the proposition was not included within the legislative session in the space corresponding to internal governance, despite the fact that its hearing and processing should have been heard in the first part of the session in safeguard of the democratic principle, of the constitutional rule of publicity, and in protection of the rights of legislators, to discussion, to broad democratic participation, and to representation. On the contrary, it is observed that the proposal was heard in the second part of the legislative session despite that being the moment established for the first and second debates of bills, which they consider diminishes the possibility for all minority deputies to exercise their rights and, in general, for the Plenary to carry out its work within reasonable periods, in a measured manner and in accordance with the importance of its work as well as the responsibility assigned to them.

XII.- Drafted by Judge Castillo Víquez. On the application of article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly to legislative file 19.922. In the sub judice, some of the plaintiffs allege that a defect in the legislative procedure has been configured, in that in ordinary plenary session No. 37 of June 30, 2016, a motion of order was heard -via article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly-, with the intention of creating a special procedure for the processing of legislative file No. 19.922 and such motion of order was heard in the so-called “Second Part of the Session” of the Plenary. The plaintiffs allege, first, that it is not possible to approve a special procedure by means of a “motion of order” (moción de orden), since, according to the provisions of article 207 of the Rules of Procedure of the Legislative Assembly, amendments to such body of norms are carried out through “agreements” (acuerdos). They add that the Rules of Procedure of the Legislative Assembly, in its article 153, allows motions of order, “unless this Rules of Procedure expressly prohibits it”. Furthermore, they add that article 35 of the Rules of Procedure of the Legislative Assembly establishes a rigorous order in the “order of the day” of the Legislative Plenary, in which it reserves for the first part of the session, among other matters, the internal governance of the Legislative Assembly, and reserves the second part for the discussion of the first and second debates of bills in progress. Therefore, according to what they affirm, articles 35, 205, and 207 of the Rules of Procedure of the Legislative Assembly have been infringed, in relation to the interpretation made by the Presidency of the Legislative Assembly through agreement number 4084, adopted at session No.

24 of June 10, 1999, and published in La Gaceta number 129 of July 5, 1999.

This Court considers that, in the present case, a substantial or essential defect in the legislative procedure that would cause the unconstitutionality of the challenged regulations has not materialized. The first thing that must be indicated is that it is Article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly itself that expressly provides that, by means of a “motion of order, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures to process reforms to its Regulations and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the vote required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment” (emphasis not in the original). That is, we are not in the presence of a non-application of the Regulations of the Legislative Assembly for the specific case, but rather before a special procedure established by the parliamentary Statute itself. Likewise, as already indicated in this same judgment, this Court has already repeatedly resolved that the cited Article 208 bis (now 234 bis) is compatible with the Law of the Constitution (values, principles, and norms). In accordance with the provisions of that article, as well as with the jurisprudence of this Court, the regularity or constitutional validity of the special procedures for processing bills, approved based on the referenced Article 208 bis (now 234 bis), derives from the fact that the corresponding motion of order is approved by a qualified majority, is applied to bills whose approval requires an absolute majority—with the exceptions contemplated in that same article—and, in its structuring, the democratic principle is respected and the right of amendment is safeguarded. Aspects that have been fulfilled in the case at hand. In fact, when hearing, at the time, the optional legislative consultation of constitutionality (case file 17-017148-0007-CO) formulated regarding the then bill for the approval of the “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa,” legislative file 19,922, this Court had the opportunity to analyze the special procedure approved for this particular case and, finally, concluded, by means of vote 2018-005758 at 3:40 p.m. on April 12, 2018, that it respected the constitutional principles of equality, reasonableness, proportionality, and democratic participation, as well as the right of amendment. Nor does a substantial defect in the legislative procedure arise from the fact that a special procedure was applied through a motion of order. In the first place, it is the same Article 234 bis that expressly establishes that the special procedure can be applied by means of a motion of order. Secondly, note that by carrying out the respective harmonization of norms and, consequently, joining Article 234 bis with Article 153 of the same regulatory body, we find that in motions of order, only the proponent may speak for up to five minutes, whether individually or jointly. In the case at hand, as recorded on folios 87 and 88 of the legislative file[1], the president of the Legislative Assembly, departing from the provisions of the regulations, gave the floor to Deputy Mr. Edgardo Araya to express his opposition. The logic that the floor is not granted in motions of order has a rationale, as they are designed to influence the parliamentary procedure, reserving the discussion for when the substantive motions or the general debate on the bill are heard, hence it is incorrect to maintain that in the application of this regulation the essential components of the democratic principle or political pluralism are violated, specifically the right to speak, etc., so for this reason this grievance must also be rejected.

Finally, the fact that the respective motion of order, to approve the cited special procedure, was heard or discussed in the second part of the session, and not in the first part, does not constitute—in the judgment of this Chamber—a substantial or essential defect in the legislative procedure that determines its unconstitutionality. It must be reiterated, regarding the issue of defects and nullities in the parliamentary procedure, that invalidating defects are those that have the characteristic of being substantial and that refer to the breach of the essential elements of the democratic principle or political pluralism or involve omissions of a requirement demanded by the Law of the Constitution. In which case, the relevant matter in the sub judice, from the constitutional standpoint, is that such an agreement was voted by a qualified majority, as well as that there existed the possibility to speak in favor of the motion—in this case the president even allowed speaking against it—and not that such a motion was heard, discussed, and voted on in the first or second part of the session. Moreover, in a correct interpretation of Article 153 of the Regulations of the Legislative Assembly, and given the nature of the motion of order—which influences the parliamentary procedure—and the particularity of Parliamentary Law—a necessary channel to translate the result of political negotiation into legislative agreements—the term debate must be understood in its broad, and not restricted, sense and, consequently, at any time during the session. Ergo, this Court considers that, regarding this point, a procedural irregularity is not configured that constitutes a violation of an essential stage of the legislative procedure capable of invalidating it.

XIII.- Justice Castillo Víquez continues writing. Some claimants also allege that the procedure approved for the bill processed under file 19,922 via Article 208 bis established a series of rules that had to be strictly complied with, but this was not done, and thereby procedures were violated, such as the publications of the motions for substitute text, the deadlines for issuing an opinion on the bill, among others. By applying the procedure of 208 bis, the participation of deputies, the Judicial Branch, and other actors was restricted, and despite the fact that rules were established, these were not complied with. That procedure eliminated and unduly restricted the participation and representation of the legislators, as well as their right of amendment, which violates the democratic principle. By establishing that only substantive motions would be received in the plenary during the first two days of discussion of the bill, the participation of third parties in the law-making process was restricted. As explained supra, the alleged defects do not have the character of being substantial and, consequently, do not have the force to invalidate the parliamentary procedure. On the issue of publication, a broad approach will be made in the subsequent recitals. Finally, with regard to the restriction on the participation of the deputies and third parties in the law-making procedure, this Court, upon validating this type of special procedure authorized by the Parliamentary Statute, logically could not maintain a contrary position, in the sense that it is unconstitutional because the deputies and third parties have a more limited space to participate in the law-making process, given that, by acting in that direction, one would fall into a contradiction of logical reasoning. That is, if 208 bis—today 234 bis—is constitutional, the fact that participation is more bounded is also constitutional.

XIV.- Justice Castillo Víquez writes. Regarding the non-compliance with the special rules set for the processing of the Bill of Legislative File No. 19,922. In the actions of unconstitutionality under study, the claimants accuse that another violation has occurred relating to the fulfillment of the requirements of the Regulations of the Legislative Assembly and, above all, of the rules that were approved when the fast-track procedure was decided—via 208 bis, now 234 bis—for legislative file No. 19,922 by the Plenary of the Legislative Assembly on June 30, 2016, and in which, for what is relevant, the following can be read:

“(…) So that, in accordance with the provisions of Article 208 bis of the Regulations of the Legislative Assembly, the following special procedure be applied to Legislative File No. 19,922, 'Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa' (…)

• 3)That the referenced motion provides in a detailed manner the special procedures, which the bill must comply with at all times, defining explicitly, clearly, and precisely the various phases or stages in the substantiation of that special path, always respecting the principles consistent with the Law of the Constitution, such as respect for the democratic principle and political participation, following in this procedure the doctrine that the Constitutional Chamber has already defined (…)

Observe that the motion itself provides—in a detailed manner—the rules that must be complied with at all times, in the processing of the bill, and warns about the respect that must prevail in relation to the principles of the Law of the Constitution, as well as the doctrine established by the Constitutional Chamber. Notwithstanding the foregoing, the claimants argue that this regulatory context was not fully complied with by the legislators and, in this regard, affirm that specifically the obligation to publish each and every one of the texts that were being attached and approved in legislative file No. 19,922 was disregarded, despite the fact that such an obligation was established as one of the rules of the 208 bis procedure agreed on June 30, 2016, and that, regarding this specific point, provided:

“(…)

h-If during the hearing of the file in its committee proceedings, a motion for substitute text is approved, or when the committee agrees to changes that substantially modify the bill, the Presidency of the Committee shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity and the hearing of the bill shall be suspended, also proceeding (sic) to make the corresponding consultations. If after eight business days no response is received to the mandatory consultations referred to in this subsection h), it shall be understood that the consulted body has no objection to the bill (…).

Prior to the analysis of the claim raised by the claimants in relation to the violation of the principle of publicity, it is necessary to recount what occurred in legislative file 19,922 to clarify the situation, as well as to understand the scope of what is alleged by the claimants. In this regard, it is observed on folio 41 that, on April 5, 2016, by several Deputies, the bill processed under legislative file No. 19,922 called “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa” was submitted for the consideration of the Legislative Assembly, which contained 4 chapters with which it intended to reform the following: a) Chapter I contained “Modifications and Additions to the General Pension Regime Charged to the National Budget”, Law No. 7302 known as “Ley Marco de Pensiones”; b) Chapter II regulated “Expiration and Cap of Pension Rights of Law No. 148”, better known as the Ley de Pensiones de Hacienda; c) Chapter III provided “Reforms to Other Laws” such as the Organic Law of the National Banking System and its Reforms, Law No. 7605 that repeals the pension regime for deputies, the Ley de Protección del Trabajador No. 7983, the Ley del Régimen Privado de Pensiones Complementarias No. 7523, and Law No. 4573 Criminal Code; d) finally, its Chapter IV regulated the reform to the Organic Law of the Judicial Branch No. 7333. Upon receipt of said Bill on that date, the President of the Legislative Assembly ordered it to be referred to the Standing Committee on Social Affairs for the issuance of the corresponding opinion, as well as to transfer the original bill to the Department of Archives, Research, and Processing for its publication. According to an order of this department dated June 8, 2016, the original bill was sent to the National Printing Office for its respective publication in the Official Gazette La Gaceta (folio 43). Meanwhile, at the ordinary session of the Legislative Plenary on June 30, 2016, a motion of order was presented that, as stated in the previous recital, was introduced to be heard in the second part of the legislative session for hearing Second Debates; a motion by several deputies so that, in accordance with the provisions of Article 208 bis of the Regulations of the Legislative Assembly, the special procedure be applied to that file. As already indicated, this proposal was approved on June 30, 2016, in the terms in which it was presented, with a vote of 39 deputies in favor and 10 deputies against. Note that, in that session, the President of the Legislative Assembly clarified “that the base text will be that of file No. 19,651 which is incorporated as a motion for substitute text, signed by all factions, whereby at the moment the Article 208 bis procedure begins for file 19,922, the motion for substitute text that uses as a base the bill that had been presented by various organizations of the Judicial Branch will be heard. That is the base text that would occupy the discussion of bill 19,922, which would also be establishing its permanence for four months in the respective committee…”. Now, in accordance with that legislative decision, from that moment on, said legislative file would be processed in accordance with the procedural rules approved in that session and as authorized by Article 208 bis of the Regulations of the Legislative Assembly. Regarding the publication of this bill which, as stated supra, was processed on June 8, 2016, by the Department of Archives, Research, and Processing, it must be indicated that this was made effective in Supplement number 110 of the Official Gazette La Gaceta No. 126 of Thursday, June 30, 2016; however, it must be noted that the text that was published was the one that had originally been submitted for the consideration of the Legislative Assembly on April 5, 2016, and which—as can be deduced from the legislative file—corresponded to the one presented by a group of deputies. It is important to highlight here that, precisely on the day such publication was made, was the day on which it was approved in the Legislative Plenary to process the legislative file via 208 bis of the regulations, as well as that the base text with which the Special Committee would work would not be the one contained in file No. 19,922, but rather the one in file No. 19,651, which was incorporated as a motion for substitute text, signed by all factions, and which was then a different version from the one published that day; a version which, as was clarified by the President of the Legislative Assembly at that time—June 30, 2016—corresponded to the bill presented by several deputies in common agreement with the guilds of the Judicial Branch, which was being processed under legislative file No. 19,651 called “Ley de Reforma al Título IX de la Ley Orgánica del Poder Judicial No. 8 of November 29, 1937, and its reforms,” and whose bill corresponded solely and exclusively to the legislator's interest in modifying the Judicial Branch's Retirement and Pension System and not in relation to other regulations as the original bill of file No. 19,922 did. Having clarified the foregoing, it is noted that later, on July 5, 2016, the cited legislative file (No. 19,922, whose content was now that of No. 19,651) was received by the Standing Committee on Social Affairs so that it could continue its proceedings there; subsequently, on the following September 5, at ordinary session No. 065 of the Legislative Plenary, the committee was appointed, and it was called “Comisión Especial encargada de conocer y dictaminar el proyecto denominado 'Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo Nº 19,922'” (folio 116, 133, and 137), despite the fact that, as noted supra, the objective of the Plenary was now only to reform the Judicial Branch's Retirement and Pension System. Said Special Committee was installed on the following September 13, and on that same date, at its ordinary session No. 1, motion No. 2 (3-01 CE) by several deputies was heard to formalize what had already been decided on the previous June 30, that is, to take as the basis for discussion the substitute text that was contained in file No. 19,651 as had been ordered in the Plenary when it was approved to process the file via 208 bis of the regulations; a motion that was approved unanimously by the members of the Special Committee (see folio 1957 of legislative file No. 19,922). As can be deduced from the legislative file, and as stated by some claimants, this new text approved by the Special Committee on September 13, 2016, was certainly not published, and so this Chamber recorded it in advisory opinion number 2018-005758 at 3:40 p.m. on April 12, 2018, upon hearing the Optional Legislative Consultation that was filed in relation to this bill, in which the following was pointed out in this regard:

“XII.- Regarding the alleged violation of the principle of publicity. The consultants argue that the substitute text approved by the Special Committee at the session of September 13, 2016, was not published, which, in their view, contravenes the principle of publicity, as well as the rules set by the special procedure approved for file number 19,922. In this regard, from the evidence provided by the executive director of the Legislative Assembly on March 12, 2018, it follows that, although the mentioned document was not published, the fact is that said substitute text had no impact, given that the substitute text approved was a different one, so the principle of publicity was not affected. It must be kept in mind that publicity is not an end in itself, as this Court has held in advisory opinion number 2018-003851, when it established the following:

“Certainly, as was pointed out in judgment No. 2006-009567, the omission of publication constitutes an essential defect that invalidates the legislative process due to its relevance for the purposes of the democratic principle. That said, in light of what was stated in judgment No. 2013-008252, it becomes necessary to note that the principle of publicity is not an end in itself, but rather its importance lies in, on one hand, guaranteeing transparency, and, on the other, enabling the participation of interested subjects. As stated in judgment No. 2013-008252 just transcribed: '…Such quality potentiates at the constitutional level the fundamental purpose of publicity: to promote the intervention of the citizenry in the fundamental decisions of the State. If this end is not violated and it is noted that a true obstruction to popular participation has not occurred, then an error in the publication cannot, by itself, constitute an essential defect in the legislative procedure.' (The underlining is added). Mutatis mutandis, if the publication is carried out at a different procedural moment, it must be assessed whether a true obstruction to popular participation has occurred or whether the transparency of the legislative procedure has been seriously affected, for the purpose of determining the existence of a substantial defect in the legislative procedure; if that is not the case, one would not be in the presence of a defect of such type.” Thus, a violation of the principle of publicity does not arise, as argued in the initial brief of this legislative consultation, since a true obstruction to popular participation has not occurred or the transparency of the parliamentary procedure has been seriously affected. Therefore, the argument raised is dismissed” (the highlights are from the original) (see judgment number 2018-005758 at 3:40 p.m. on April 12, 2018).

Thus, up to this point, the Chamber maintains the criterion expressed supra and, therefore, no additional reference will be made on the point, so the claimants must abide by what was resolved therein regarding the actions of the Legislative Assembly up to that specific procedural moment in relation to this second substitute text of legislative file No. 19,922, which, as stated, corresponds to the one approved by the Special Committee on September 13, 2016, which was later abandoned for another text, that is, it was not the text finally approved, so its omission of publication had no impact.

XV.- Justice Castillo Víquez continues writing: Now, continuing with the processing of file No. 19,922 in relation to the subject matter under study regarding the publication of its substitute texts, it must be indicated that the Special Committee appointed to study and issue an opinion on the bill continued with the analysis of the text—recall that it was the content in file No. 19,651—and during the months of September 2016 to March 2017, it received in different hearings various people linked to issues related to the bill so that they could appear before the Committee and present their positions, and among them, representatives of the Full Court, the administrative area, as well as different guilds, all from the Judicial Branch, were received, as well as personnel from the Ministry of Finance, the Superintendency of Pensions, the University of Costa Rica, among others. It is recorded in the legislative file that on March 29, 2017, the appearances of the last guests of the Special Committee concluded, and upon resuming the discussion of the bill, the Deputy President of that Special Committee stated—as recorded in minutes visible on folio 1716—that on Monday, March 27, 2017, a new substitute text had been circulated “in a meeting of all advisors and all offices,” as well as that it was discussed that day and it was announced that said text would be heard at the session of the following March 29. Furthermore, it is observed in the minutes visible in legislative file No. 19,922 that, on that date—March 29, 2017—motion No. 1-15 by several deputies was presented in the Special Committee so that the reading of the motion for substitute text and its content be dispensed with, which was approved, and immediately thereafter, the discussion on the merits of the motion for substitute text began, being approved in that same session with 7 deputies in favor and 1 against (folio 1731 Volume 7), with the recommendation of some deputies that this new text be published (folio 1731 and 1733 Volume 7). In this way, so that it is clear what happened, it must be indicated then that, on that date—March 29, 2017—a third text was introduced, which is new, and which was approved in the Special Committee as the substitute text with which it would work from that moment on. After this, it is observed that on April 4, 2017, at ordinary session No. 16 of the Special Committee, some deputies presented a new motion in which they stated that, with the new text approved on March 29, 2017, the agreement that existed to work on the basis of the substitute text that had been admitted on September 13, 2016, was breached, so they asked that the text that had been accepted on September 13, 2016, be once again considered the base working text of the Special Committee (folio 1751); a motion that was rejected, ordering that the substitute text approved on March 29, 2017, would be the one kept under study and as the working basis of that Special Committee. It is noted that after this, via email sent on April 17, 2017, and through official communication AL-20035-OFI-0033-2017 of that date, signed by the President of that Special Committee, that substitute text was sent to the Executive Director of the Legislative Assembly so that the corresponding publication in the Official Gazette La Gaceta could be carried out (folio 1767 Volume 8). Now, notwithstanding the foregoing, it is observed that at session No. 17 of April 18, 2017, the Special Committee approved a motion to return to the base text that had been approved on September 13, 2016 (folio 1776 Volume 8); however, given that the day before, the bill had been ordered to be sent for publication, that session could not be held because the rules approved for processing the file via Article 208 bis were very clear in establishing that when a bill was sent for publication, the hearing of file No. 19,922 was suspended. In accordance with the above, the Department of Studies, References, and Technical Services, through report AL-DEST-CJU-027-2017 of April 20, 2017, stated that the motion presented at session No. 17 of April 18, 2017, to return to the previous base text was not admissible and, therefore, the vote on that motion was not valid, so, based on the report of the cited department, that session was annulled, rendering the agreements approved therein null (folio 1973 Volume 8); consequently, the base substitute text for discussion continued to be the third one, the one approved by the Special Committee on March 29, 2017. In the meantime, it follows from the legislative file that in Supplement No. 91 of Thursday, April 27, 2017, that substitute text approved on March 29, 2017, was published (folio 2126), now called “Reforma del Título IX de la Ley Orga´nica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales, N° 7333 of May 5, 1993, and its Reforms,” given that it must be kept in mind that, since June 30, 2016, the legislator's intention to approve a bill that reformed only the Judicial Branch's Retirement and Pension System and not several at once, as was contained in the original text of legislative file No. 19,922, was clear. Continuing with the study of the legislative file, it is observed that at the ordinary session of the Special Committee No. 19 of June 27, as well as at No. 20 of July 19, both dates in 2017, a motion was presented—each one of those days—so that the document that had been approved at ordinary session No. 1 of this Committee on September 13, 2016, be accepted as the base text for discussion; a motion that was finally rejected on July 19, 2017 (folio 2284 Volume 9) and, therefore, the working text continued to be the third one, the one approved on March 29, 2017. After this, at extraordinary session of the Special Committee No. 22 of July 26, 2017, a motion was approved according to which, as a result of the study carried out by the University of Costa Rica, a new text would be drafted adhering to the technical criteria of the report from the Institute for Research in Economic Sciences of the University of Costa Rica (IICE), and, based on this decision, on the following July 27, some deputies presented a motion for substitute text in order to modify the one under discussion and, in its place, to have this new document as the base (folio 2407 Volume 10); a new substitute text that was approved that same day, at the extraordinary session of the Special Committee No. 23 of July 27, 2017, and furthermore, at that session, the Affirmative Majority Opinion was issued, and a motion to publish it was also approved (folio 2450 Volume 10). It is recorded in the report rendered to the Chamber by the President of the Legislative Assembly, as well as on folio 2866 of the legislative file, that this Affirmative Majority Opinion was published in Supplement No. 189 of Friday, August 4, 2017, and, likewise, that in Supplement No. 190 of Monday, August 7, 2017, the Minority Opinion was published. It is worth clarifying that this new text was number 4 added to legislative file No. 19,922 and was consulted with the Supreme Court of Justice 2625 and 2759 et seq.

It is observed that, subsequently, at the session of the Legislative Plenary No. 6 of September 4, 2017, the discussion on the merits of legislative file No.

19.922 in the First Debate stage, for which the explanation of the reports (dictámenes) was carried out and the first day was counted for the presentation of substantive motions (mociones de fondo), it being the case that these, in accordance with the provisions of article 208 bis approved for the processing of this file (expediente), could be presented in the sessions of September 4 and 5, 2017, suspending the discussion of the bill until the Presidency of the Legislative Assembly determined the admissibility of the substantive motions (mociones de fondo) presented to the affirmative majority report (dictamen afirmativo de mayoría) (folio 3177). In ordinary session No. 067 of September 19, 2017, the Presidency of the Legislative Assembly communicated resolution No. 02-17-18 of September 18, previous, by which it was ordered: a) to admit all of the 102 substantive motions (mociones de fondo) presented to file No. 19.922 for conforming to the rules provided in subsection 3) of point II of motion 208 bis; b) to group identical motions to be discussed in a single act although voted on individually; and c) another motion presented by a deputy who was not a member of the Special Reporting Commission (Comisión Especial Dictaminadora) was declared inadmissible. Likewise, the transfer of the motions to said Special Commission was carried out (folio 3195 and 3198), it being observed in the legislative file that these motions were discussed there in session No. 25 of September 20, 2017 (3210 and 3461); a session that began at 17:29 hours (folio 3471 of Volume 14) and concluded at 22:31 hours (folio 3600 Volume 15), it being the case that, in that single session, all were heard and analyzed. The minutes drawn up in that session were approved in the Special Commission in the following session, the extraordinary session No. 26 of September 25, 2017; a date on which the first report on motions via article 137 regarding file No. 19.922 processed by the Special Commission was delivered to the Secretariat of the Directorio, and in which it was recorded that 102 motions were processed, with numbers 2, 3, 5, 10, 23, 27, 31, 32, 37, 41, 44, 45, 50, 61, 64, 71, 78, 84, 86, 89, 91, 94, 96, and 98 being approved (folio 3208), it also being ordered that the file be sent to the Drafting Committee (Comisión de Redacción) so that the corresponding adjustments could be made there in relation to what was approved on September 20, previous (folio 3611 Volume 15 of the legislative file). For its part, it is recorded that, on September 27, 2017, the Presidency of the Legislative Assembly announced the receipt of the Report on Substantive Motions from the Reporting Commission, counting that as the first session—of the 2 established—to present motions for reiteration (mociones de reiteración) in accordance with the adopted procedure of 208 bis (folio 3612), as well as that the second and final session for the receipt of those motions would be the following September 28 (folio 3621 of Volume 15). It is evident from the legislative file that in the ordinary session of the Legislative Plenary of September 28, 2017 (folio 3623 of Volume 15), the discussion of the first debate of bill No. 19.922 was restarted and a motion was approved to postpone all items on the agenda in order to hear that file (folio 3630 of Volume 15). As is evident from the legislative file, as of this date there is no record of the existence of any document or motion suggesting publication of the text. Subsequently, in resolution No. 03-17-18 of October 11, 2017, from the Presidency of the Legislative Assembly, it was communicated that 65 motions for reiteration (mociones de reiteración) were presented during the period enabled for that purpose, but one was withdrawn, leaving 64, of which 57 are admitted and 7 were deemed not admitted; identical ones were grouped to be discussed in a single act although voted on individually and the hearing of such motions continued but without any warning to order the publication of the document (folio 3635 and 3663 of Volume 15). In extraordinary session No. 010 of October 17, 2017, the Legislative Plenary continued the discussion on the merits in the First Debate stage of file No. 19.922 with the hearing of the motions for reiteration (mociones de reiteración), counting as the first session for this purpose (folio 3673 of Volume 15); it continued with this in the second extraordinary session No. 011 of the Plenary on October 18, 2017 (folio 3781 of Volume 16); in the third extraordinary session No. 012 of the Plenary on October 24, 2017 (folio 3834 of Volume 16); in the fourth extraordinary session No. 013 of the Plenary on October 25, 2017 (folio 3907 of Volume 16) and, finally, in the fifth extraordinary session No. 014 of the legislative Plenary corresponding to October 30, 2017 (folio 4000 of Volume 17), the text of the Affirmative Majority Report (Dictamen Afirmativo de Mayoría) accepted by the Special Commission on July 27, 2017, and which corresponded to the fourth text that was integrated into legislative file No. 19.922, was approved in First Debate; a text that, as stated supra, had received modifications through the substantive motions (mociones de fondo) admitted by the Special Commission and, subsequently, underwent additional variations through the motions for reiteration (mociones de reiteración) that were admitted by the Legislative Plenary and which culminated in the consensus text that was approved in First Debate.

Up to this point, and returning to the claim of the petitioners regarding the lack of publication of the different bills contained in legislative file No. 19.922, it must be remembered that, by this date—October 30, 2017, and as has already been stated—2 publications of the substitute texts (textos sustitutivos) that were being heard by the Special Commission charged with issuing the report (dictamen) on the bill had been carried out: the first publication was made in Supplement (Alcance) 110 of La Gaceta of Thursday, June 30, 2016, and corresponded to the original bill presented on April 5, 2016, to which legislative file number 19.922 was assigned; and the second publication, visible in Digital Gazette (Gaceta Digital) No. 147, Supplement (Alcance) No. 189 of August 4, 2017, where the Affirmative Majority Report (Dictamen Afirmativo de Mayoría) of the Special Commission was published. Additionally, in Digital Gazette (Gaceta Digital) No. 148, Supplement (Alcance) No. 190 of August 7, 2017, the Minority Report (Dictamen de Minoría) of the Special Commission was published. In relation to the foregoing, one cannot disregard the obligation that was established as one of the rules of the 208 bis procedure agreed upon on June 30, 2016, and which, regarding this specific point of publication, provided:

“(…)

h-If, during the hearing of the file in its committee stage, a substitute text motion (moción de texto sustitutivo) is approved or when the committee agrees on changes that substantially modify the bill, the Presidency of the Committee shall request the Legislative Directorio (Directorio Legislativo) to agree on its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity (Principio Constitucional de Publicidad), and the hearing of the bill shall be suspended, also proceeding (sic) to make the corresponding consultations. If after eight business days no response is received to the mandatory consultations referred to in this subsection h), it shall be understood that the consulted body has no objection to the bill (…)”.

From the foregoing, the legislator's decision is very clear: any approved substitute text motion (moción de texto sustitutivo)—obviously understood to be different from the previous one being studied—or any change that substantially modified the bill, had to be published in the Official Gazette La Gaceta, and for this purpose, it was the obligation of the President of the Special Commission to request that the Legislative Directorio (Directorio Legislativo) agree on its publication in order to safeguard the constitutional principle of publicity (principio de publicidad). In this specific case, it is alleged that the text modified with the substantive motions (mociones de fondo) that were accepted, and the subsequent text, further varied with the admitted motions for reiteration (mociones de reiteración), were not published again despite the fact that they consider that substantial modifications to the bill that ultimately ended up being approved in first debate occurred without any publication being made prior to that. The publication occurred after the motions and modifications were approved in first debate. The document was published in Digital Gazette (Gaceta Digital) No. 212, Supplement (Alcance) No. 268 of November 9, 2017 (see folio 4368 of Volume 18 of the legislative file). Specifically, the appellants allege a defect (vicio) in the parliamentary procedure, given that in the session of July 27, 2017, the Special Commission approved a substitute text (texto sustitutivo) and, in accordance with point 2, subsection h), of the rules governing the special procedure, the processing of the bill was not suspended for the period of eight business days; rather, the cited parliamentary body met and issued the report (dictamen) on the bill (see folio 2417 of the legislative file). The majority of this Court is not unaware that the pinpointed defect (vicio) indeed occurred. However, for the reasons set forth below, such defect (vicio) does not have sufficient force to invalidate the procedure followed in this case, much less the final parliamentary act, that is, the law being challenged in the accumulated actions.

Although this Court, in the advisory opinion (opinión consultiva) that resolved the optional constitutional review (consulta de constitucionalidad facultativa) regarding the Tax Solidarity bill—No. 004621-2012—established that the deputies had to strictly and scrupulously conform to the procedure designed in accordance with provision 208 bis—now 234 bis—it is true that such a stance cannot have an absolute character. Consequently, it must be borne in mind that not every defect (vicio) in the designed special procedure entails a substantial defect (vicio sustancial) in the procedure, since these refer to core aspects of the latter associated with the democratic principle, its essential components, and the right of amendment. Having established the above, the defect (vicio) alleged has to do with what is termed in Costa Rican Parliamentary Law as the waiting period (plazo de espera), an institute of parliamentary procedure that is provided for in different stages of the parliamentary iter. In the judgment of the majority of this Court, the defect (vicio) invoked does not have the merit to be subsumed within the essential or substantial ones, nor even within a relative one, given that substantial steps of the parliamentary procedure have not been violated by it; it is rather a defect of little importance.

Furthermore, if the majority of this Court, when a breach of the principle of constitutional rigidity has been invoked, has established the doctrine that violations of the procedure of constitutional article 195 must be substantial and, consequently, not every violation of what that provision stipulates entails the nullity of the constitutional reform, we would be wrong to follow a different path when dealing with the violation of a norm provided in the special procedure. Logic demands that the same reasoning must apply, for if under the highest-ranking norm—the constitutional norm—it is required that the defect (vicio) be substantial, under the lower-ranking norm—the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa) and the motion governing the special procedure—the defect (vicio) must also have that characteristic.

There is another element that must be kept in mind in sub lite, and that is that the Special Commission had a deadline to issue its report (dictamen) by July 31, such that it was materially impossible to suspend the hearing of the bill for eight business days on July 27, especially since it was not plausible to presume that the Plenary would grant a new extension to the preparatory body in the event it had requested one. Faced with this scenario, the alternative chosen by the Special Commission is the one that best conforms to the very rules within the special procedure for several reasons. In the first place, it guarantees the continuity of the parliamentary procedure; otherwise, if it agreed to suspend the procedure of the bill, the consequence thereof is that it would lose the competence (competencia) to issue its report (dictamen) on it or to adopt any other parliamentary act. And finally, it is the one that best conforms to what was provided in advisory opinion (opinión consultiva) No. 004621-2012, which found a procedural defect (vicio de procedimiento) in a bill precisely because the special committee heard motions when its deadline had already expired, that is, when it no longer had competence (competencia). Hence, for the reasons indicated, what is appropriate is to dismiss the claim that the pinpointed defect (vicio) causes the unconstitutionality of the challenged law.

XVI.Justice Castillo Víquez writes. Regarding the alleged injury related to the timing of the publication of the substitute texts (textos sustitutivos) of the bill from file number 19.922. The existence of a defect (vicio) in the legislative procedure is alleged, insofar as it is asserted that the obligation to publish each and every one of the texts that were being attached to and approved within legislative file No. 19.922 was not duly fulfilled, despite the fact that such obligation was established as one of the rules of the special procedure approved on June 30, 2016, pursuant to article 208 bis (now 234 bis) of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa). It particularly questions the alleged late publication of the fourth substitute text (texto sustitutivo), with the modifications introduced to it through a series of ordering and reiteration motions. That is, it does not question an absolute omission to publish such text, but rather that it was published after being voted on in the first debate, but before being approved in the second debate.

In the judgment of the Court, regarding this particular point, an essential infringement of the legislative procedure has also not been established, due to a violation of the principle of publicity (principio de publicidad). It must be reiterated, first, that in this case the mentioned publication was indeed carried out, but what is questioned is an alleged late or untimely publication of the text in question. For which reason, it must be remembered that this Chamber has admitted that the lack of publication, at a specific procedural moment, does not always constitute an invalidating defect (vicio) of the legislative procedure. In this regard, this Court has indicated:

"The Chamber does not consider that this circumstance injures the principle of publicity (principio de publicidad), typical of the legislative procedure: this principle, in the first place, is not satisfied by a single act, such as, for example, the publication of the proposal, but rather is carried out in the different phases of the procedure, and in the very publicity (publicidad) to which the work of the legislative bodies is subject. Moreover, the court observes that once the proposal was admitted (in the case on which this opinion is based), and the report (dictamen) of the Committee referred to in subsection 3) of article 195 was rendered, it was published, as was customary. Consequently, the Chamber arrives at the conclusion that the lack of publication of the constitutional reform proposal at issue here does not constitute a defect (vicio) that invalidates the procedure." (See ruling (voto) no. 11560-2001).

Along these same lines, in the cited ruling (voto) no. 2018-005758, this Chamber indicated that:

"It must be borne in mind that publicity (publicidad) is not an end in itself, as this Court held in advisory opinion (opinión consultiva) number 2018-003851, when it established the following:

'Certainly, as indicated in judgment (sentencia) No. 2006-009567, the omission of publication constitutes an essential defect (vicio esencial) that invalidates the legislative process due to its relevance for the purposes of the democratic principle. However, in light of what was indicated in judgment (sentencia) No. 2013-008252, it becomes necessary to warn that the principle of publicity (principio de publicidad) is not an end in itself, but rather its importance lies in, on the one hand, guaranteeing transparency, and, on the other, enabling the participation of interested subjects. As stated in the recently transcribed judgment (sentencia) No. 2013-008252 "...Such quality potentiates at the constitutional level the fundamental purpose of publicity (publicidad): to promote the intervention of the citizenry in the fundamental decisions of the State. If this purpose is not undermined and it is observed that a true obstruction to popular participation has not occurred, then an error in the publication cannot, by itself, constitute an essential defect (vicio esencial) of the legislative procedure." (The underlining is added). Mutatis mutandis, if the publication is carried out at a different procedural moment, it must be assessed whether a true obstruction to popular participation has occurred or the transparency of the legislative procedure has been seriously affected, for the purposes of determining the existence of a substantial defect (vicio sustancial) in the legislative procedure; if that is not the case, one would not be in the presence of a defect (vicio) of such type.' (the highlighting does not correspond to the original).

In which case, the Chamber considers that in the instant case, with the accused late or untimely publication of the substitute text (texto sustitutivo), a true obstruction to popular participation has not occurred, nor has the transparency of the parliamentary procedure been seriously affected, since, as the General Prosecutor's Office (Procuraduría General de la República) rightly indicates, it is 'public and notorious that the union organizations of the Judicial Branch actively followed the entire legislative process that culminated in the approval of law No. 9544, a process which was also given extensive journalistic coverage, so it is not possible to affirm that there was any serious omission in the publicity (publicidad) of the bill that could justify the annulment of said law' (see folio 14 of the report of the General Prosecutor's Office (Procuraduría General de la República)).

Additionally, regarding the foregoing, the petitioners state that the substitute text (texto sustitutivo) approved in the Special Commission on July 27, 2017, had substantial changes, for which reason its publication was necessary in accordance with the rules set forth in the special procedure according to provision 208 bis—now 234 bis—of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa). It has been a foundational thesis of the Constitutional Chamber (Sala Constitucional) that whomever invokes a breach of unconstitutionality bears the burden of argument. The foregoing means that it is not enough to invoke unconstitutionality or to state that there is a defect of unconstitutionality, but rather one must make a minimum logical development, explaining what the defect (vicio) consists of. In this regard, this Court stated in judgment (sentencia) No. 0184-1995, the following:

"This matter offers an important basis for the analysis of what could be called the 'burden of argument': a norm that is facially contrary to the Constitution shifts the burden of argument to those who maintain that in reality there is no conflict between that norm and the Political Constitution; the opposite occurs if an action is brought against a norm that upon first examination does not appear contrary to the Constitution, in which hypothesis it is the petitioner who must advance the arguments that convince regarding the unconstitutionality." Even more so, in a later judgment (sentencia)—004239-2014—the issue of the burden of argument and the duty of the petitioners to demonstrate the alleged infringement is developed more broadly. It establishes the following:

"IV.- Regarding the lack of concreteness of the arguments of unconstitutionality. The Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in its article 3, provides that 'The Political Constitution shall be deemed infringed when this results from the comparison of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles.' However, for this Court to deem the infringement established and to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whomever promotes an action of unconstitutionality has the burden of demonstrating how that provision infringes the constitutional norm or principle and, additionally, must indicate why the claim should be sustained. This is termed by this Chamber as the burden of argument, that is, that 'a norm that is facially contrary to the Constitution shifts the burden of argument to those who maintain that in reality there is no conflict between that norm and the Political Constitution; the opposite occurs if an action is brought against a norm that upon first examination does not appear contrary to the Constitution, in which hypothesis it is the petitioner who must advance the arguments that convince regarding the unconstitutionality' (see judgment (sentencia) number 0184-95 of 16:30 hours on January 10, 1995).

In a later judgment (sentencia), this Chamber stated, regarding the lack of concreteness of the arguments of unconstitutionality in matters of actions of unconstitutionality, the following:

'The action of unconstitutionality is filed with the argument that the challenged Executive Decree (Decreto Ejecutivo) is harmful, injures, and infringes the fundamental rights to a healthy and ecologically balanced environment, the right to health, and the international commitments signed with the Kyoto Protocol. Despite the opportunity granted to the petitioners, it is confirmed what the General Prosecutor's Office (Procuraduría General de la República) indicates, that there is no concrete analysis of the provisions of the challenged Executive Decree (Decreto Ejecutivo) that are considered unconstitutional, but rather it is limited to establishing discrepancies in a generic and abstract manner against the entirety of the Regulations, furthermore against all activities carried out by the Sugar Mills and Haciendas, since they maintain that they cause inconveniences in the quality of life and health of the surrounding inhabitants, without specifying which constitutional arguments must be taken into account against each of the provisions or groups of norms of the challenged Regulations. […] The first paragraph of article 78 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) establishes the obligation to authenticate the writs for filing actions of unconstitutionality, insofar as it is deemed necessary that there be arguments put forth by a legal professional, which this Court does not rule out are the result of a serious study of the technical and scientific substance of a given matter, given the diversity and universality of the norms of the legal system. Unlike the processes of guarantees, that is, habeas corpus and amparo remedies, which any interested party can directly file before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that injure them in their private sphere (although not always as in environmental cases), in the processes for the defense of the Political Constitution (such as the action of unconstitutionality), the legislator entrusted the authenticating attorney with a task whose demand is even greater, more elaborated and exhaustive if you will, that must be captured in the filing brief by reason of their professional office, to demonstrate to the Court the injury to the constitutional norm by a lower-ranking norm, undermining the principle of constitutional supremacy contained in article 10 of the Political Constitution. Precisely, the material and formal drafting of the Law, as well as of other secondary provisions, involves an extremely costly process for the State, in which organized civil society has participated in many ways, for or against, and whose formation, approval, and promulgation procedures should not be analyzed lightly. In this sense, this Chamber must recognize that there is reduced space for this Court to remedy the manifest deficiencies of the legal professionals who authenticate the writs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the actions of unconstitutionality.' (Judgment (Sentencia) number 005285-2012 of 15:03 hours on April 25, 2012).

In this case, this Court considers that despite the opportunity granted to the petitioner, there is no concrete analysis of the provisions of the challenged Executive Decree (Decreto Ejecutivo) that are considered unconstitutional, but rather it is limited to establishing the discrepancies in a generic and abstract manner against the Regulations and the activities carried out by sugar producers, the haciendas, and the farms of the country—especially those located in Cañas, Carrillo, and Liberia, all in the province of Guanacaste—since they maintain that they cause problems in the quality of life, health of the inhabitants, and environmental damage. They consider that due to the activity they carry out, an environmental impact assessment (estudio de impacto ambiental) should be required of them, since the only thing the challenged decree proposes—in its provision 12—is the possibility of issuing a technical opinion by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC), and they consider that the ten-calendar-day period established for such purposes is insufficient; however, they do not establish what the technical reasons are for the public authority to require a period greater than that established in the norm. Moreover, they oppose the restriction that the Ministry of Health and the municipalities have to suspend a burn that fails to comply with the conditions and requirements specified in the permit if the Ministry of Agriculture and Livestock does not jointly intervene under the terms of article 19 of the questioned Decree. Furthermore, they object that there are no technical studies to establish whether the biomass fossil fuel boilers exceed or do not exceed the emission levels of boilers, under the terms provided in the Boilers Regulations (Reglamento de Calderas). Notwithstanding the foregoing considerations, they make them without there being concreteness in the constitutional arguments that must be taken into account against each of the provisions or groups of norms of the challenged Regulations. Likewise, the active coadjuvants Gad Amit Kaufman and Carolina Rugeles Quijano also do not provide additional elements that would allow the establishment of the legal reasons that substantiate their position regarding the unconstitutionality of the cited decree, since they limit themselves to citing national and international doctrine, the laws, the International Treaties and Agreements signed by Costa Rica, and the judgments (sentencias) issued by this Court that they consider the Regulations in question contradict, without establishing an exhaustive analysis to demonstrate the injury to the constitutional norm by the lower-ranking Decree in question. For which reason, as with the partially transcribed precedents, this Chamber considers that it is not possible for it to remedy the manifest deficiency of the legal professional who authenticated the present action, without exposing the impartiality and analysis that this action of unconstitutionality must have and, therefore, the present action of unconstitutionality must be declared without merit." Finally, regarding the burden of argument and specifically applied to an alleged defect (vicio) in the legislative procedure, in ruling (voto) number 011499-2013, the following is stated:

"VII.- Regarding the defects (vicios) of the procedure. The petitioner Guillermo Sanabria Ramírez, in his capacity as representative of the Association Chamber of Patent Holders of Costa Rica (Asociación Cámara Patentados de Costa Rica), accuses that during the legislative procedure for the approval of the Law for the Regulation and Commercialization of Alcoholic Beverages, No. 9047, formal defects (vicios formales) were incurred that invalidate said law. First, he alleges that the then bill was substantially modified through the approval of substantive motions (mociones de fondo), via article 137 of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa), which were not published in a timely manner, such that the principle of publicity (principio de publicidad) was breached. Second, and in accordance with the foregoing, he maintains that the published original text is different from the approved law, such that there was an excess in the right of amendment without a final publication that matches what was finally approved. For his part, petitioner Gerardo Darío Schreiber also considers that violations occurred in the procedure for approving law No. 9047, as substantial changes were made to the bill that were not published.

Regarding this grievance, the General Prosecutor's Office (Procuraduría) is of the opinion that the petitioners omitted to indicate and specify the injuries to constitutional rights produced by the acts they claim as unpublished; that is, they did not pinpoint the specific impact caused by the non-publication of the reports (dictámenes) they point out, as well as each of the motions invoked. The General Prosecutor's Office (Procuraduría) clarifies that the then bill processed in legislative file No. 17.410 (Regulatory Law for Alcoholic Beverages) was duly published, both its original text, in La Gaceta No. 145, Supplement (Alcance) No. 31, of July 28, 2009, and the substitute text (texto sustitutivo) that the petitioners accuse as unpublished, a publication that was made in Official Gazette La Gaceta No. 6 of January 11, 2010. Furthermore, regarding the non-publication of a second Committee Report (Dictamen de Comisión), via article 154 of the Regulations, which according to the petitioners' opinion introduced substantial changes to the bill after reviewing the report (dictamen) that is branded as unpublished and the substitute text (texto sustitutivo), the General Prosecutor's Office (Procuraduría) did not appreciate differences of a substantial nature that made such publication indispensable. The advisory body explains that regarding the motions listed by the petitioners, these do not represent substantial changes to the bill in question, which from its original text and later through the substitute text (texto sustitutivo) provided express regulation on the points indicated.

The Procuraduría argues that the set of motions, as well as the issuance of the opinions that are criticized as unpublished, occurred on a date prior to the referral of the bill for advisory review to this very Constitutional Chamber, and that by reason of what was resolved on that occasion (judgment number 2012-2675), the bill was again modified in accordance with the observations of this Chamber. The amended text, based on the revisions made in light of what was resolved by this Court, was duly published in La Gaceta No. 95 of May 17, 2012, and therefore no defect whatsoever is noted that violates the principle of publicity that is alleged to have been infringed.

Now, as to this sole procedural defect alleged by the claimant (lack of publication), the Chamber finds that the Procuraduría General de la República is correct in each of its assessments and, therefore, the dismissal of the action with respect to this complaint is warranted. As this Court has held, the recognition of the principle of publicity as a substantial element of the legislative procedure has been a constant in constitutional jurisprudence (see, among others, judgment number 2006-009567 of July 5, 2006). This principle guarantees broad debate, facilitating contact both with public opinion in general and with those who, in particular, might have an interest (by reason of their economic activities) in learning about and even participating in the deliberation of the matter. Likewise, the publicity of parliamentary proceedings is essential given the representative character of the national community held by the Asamblea Legislativa, since sovereignty resides in the people and the deputies are merely their representatives, as provided in Article 105 of the Constitution (see judgment number 2000-03220 of 10:30 a.m. on April 18, 2000).

As the Chamber correctly stated in the cited judgment number 2000-03220, the legislator has the possibility of introducing modifications and variations to the original bill through the exercise of its right of amendment. Regarding such changes, constitutional jurisprudence has differentiated between amendments that require new publication and those that do not; this depends on whether such a change constitutes a substantial modification of the original bill. See what was indicated by this Court in the aforementioned judgment number 2000-03220: "Article 101 of the Ley de la Jurisdicción Constitucional does not clearly determine which defects in the law-making procedure, if detected, produce invalidity from a constitutional standpoint. To define this, it is necessary to relate this provision to the rule contained in subsection c) of numeral 73 of the Law governing this Jurisdiction, which provides that – in actions of unconstitutionality – and in principle, in the ordinary legislative process, the defects controllable by the Chamber are those referring to the violation of any 'substantial' requirement or proceeding provided for in the Constitution or, where applicable, established in the Reglamento de la Asamblea Legislativa. From the foregoing derives the need for the Constitutional Chamber itself, in each particular case, to establish which requirements or proceedings prove to be 'essential,' to the point of invalidating the procedure for the drafting of a specific norm due to its non-compliance, since it is clear that a reading of the provision in the opposite sense leads to the conclusion that not every violation of the procedure for the drafting of formal law constitutes a substantial defect, and clearly, with consequences regarding its constitutionality (…)". Thus, an essential defect of the legislative procedure – contrary to the principle of publicity – will exist when the new publication of the bill is omitted in those cases where the amendment or amendments made cause a substantial modification of the original text (see in the same sense, judgment number 2012-004621 of 4:00 p.m. on April 10, 2012, among others).

In the sub iudice, this Court finds that the text published in La Gaceta No. 145, Alcance No. 31, of July 28, 2009 is the bill originally presented by then-Deputy Oscar Núñez Calvo, relating to legislative file No. 17.410, where at that time the then bill "Ley Reguladora de Bebidas con contenido alcohólico" was being processed. Subsequently, the substitute text was also brought to the attention of the general public through publication in Diario La Gaceta No. 6 of January 11, 2010 (see La Gaceta Digital website). In that same vein, as the Procuraduría states, the motions alluded to by the claimants and the issuance of the opinions criticized as unpublished occurred prior to the referral of the bill for optional advisory review to this very Constitutional Chamber, a bill that, by reason of what was resolved on that occasion (judgment number 2012-2675), was again modified in accordance with the observations made by this Chamber. This amended text was duly published in La Gaceta No. 95, Alcance Digital No. 63 of May 17, 2012 (see La Gaceta Digital website), and therefore no defect whatsoever is indeed noted that violates the principle of publicity alleged to have been infringed, since the bill was duly published in its amended and final version.

Thus, we see how – on at least three different occasions – the text of the bill in question was published in the Diario Oficial La Gaceta in order to give publicity to the base text as well as to the changes that occurred throughout the legislative iter after this Chamber ruled on the bill in the optional advisory review filed. The most important publication, without a doubt, is that of May 17, 2012, since the text published at that time contained each of the modifications made by the legislators in light of what was indicated by this Court in the optional advisory review, in addition to the changes made prior to the bill itself. Ergo, with this third and final publication of the then bill, any other deficiency that could have existed in the prior phases of the parliamentary procedure was cured, especially considering that a comparison between the text published on this last occasion (May 17, 2012) and the final text that was published as Law of the Republic in La Gaceta No. 152 of August 8, 2012, shows that both texts maintain absolute coherence and similarity in their most important normative postulates.

In any case, the Chamber also agrees with the Procuraduría General de la República's opinion that the claimants Sanabria Ramírez and Darío Schreiber did not substantiate in any way what harm or grievance the lack of publication of the changes made to the original text caused them. In the case of claimant Sanabria Ramírez, this Court finds that he merely limited himself to transcribing the original text of some provisions of the bill and, immediately following each article, the wording that, in his opinion, had been modified in the new substitute text; however, he did not justify or explain why the publication of each of those changes was necessary. For his part, the claimant Darío Schreiber also failed to elaborate on the grounds and reasons that this Chamber finds lacking when stating the grievance of lack of publication. The foregoing leads us to conclude that, in this case, what the Procuraduría General de la República indicates is confirmed, in the sense that there is no specific analysis of the reasons why it was deemed necessary to publish each of the changes and modifications made to the bill, or at least the most relevant ones. In this grievance, both claimants limit themselves to outlining generic and abstract discrepancies against the publications that, in their judgment, should have occurred during the legislative process, but they do not explain why such publications were necessary.

As stated in judgment number 2012-002675 of 11:52 a.m. on February 24, 2012 (which resolved the Consulta Facultativa de Constitucionalidad filed regarding the then bill "Ley para la regulación y comercialización de bebidas con contenido alcohólico"), this Court has reiterated jurisprudence establishing that this body rules only on what is expressly consulted and reasoned, but not in the abstract. For instance, in the recent vote number 2013-000992 of 2:30 p.m. on January 23, 2013, this Chamber explained the following:

"Regarding the lack of specificity of the arguments of unconstitutionality. In particular, regarding the presentation of the grounds clearly and precisely – Article 78 of the Ley de la Jurisdicción Constitucional – the Chamber has indicated that: 'The first paragraph of Article 78 of the Ley de la Jurisdicción Constitucional establishes the obligation to authenticate the briefs filing actions of unconstitutionality, since it is deemed necessary that there exist arguments put forth by a legal professional, which this Court does not rule out as responding to a serious study of the technical and scientific background of a specific matter, given the diversity and universality of the norms of the legal system. Unlike guarantee proceedings, that is, habeas corpus and amparo remedies, which any interested party can directly file before the constitutional jurisdiction in defense of their fundamental rights (…) in proceedings for the defense of the Political Constitution (such as the action of unconstitutionality), the legislator entrusted the authenticating attorney with a task whose requirement is even greater, more elaborate and exhaustive if you will, which must be set forth in the initial brief by reason of his/her professional office, to demonstrate to the Court the harm to the constitutional norm by a norm of lower rank, undermining the principle of constitutional supremacy contained in Article 10 of the Political Constitution. Precisely, the material and formal drafting of the Law, as well as of other secondary provisions, involves a process that is extremely costly for the State, in which organized civil society has participated in many ways, for or against, and whose processes of formation, approval, and promulgation should not be analyzed lightly. In this sense, this Chamber must recognize that there is limited room for this Court to remedy the manifest failures of the legal professionals who authenticate the briefs in this constitutional jurisdiction, without compromising the impartiality and analysis owed to each action of unconstitutionality' (the underlining does not correspond to the original).

In that same vein, the Chamber's precedents have addressed what could be called the 'burden of argumentation': a norm that on its face is contrary to the Constitution shifts the burden of argumentation to those who maintain that there is in fact no conflict between that norm and the Political Constitution; the opposite occurs if an action is brought against a norm that on initial examination does not appear contrary to the Constitution, in which case it is the claimant who must advance arguments convincing of its unconstitutionality" (see judgment number 0184-95 of 4:30 p.m. on January 10, 1995).

In accordance with this line of reasoning, there is no alternative but to dismiss this sole grievance as presented by the claimants Sanabria Ramírez and Darío Schreiber, first, because there was adequate and timely publication of the different texts prior to the approval of Law No. 9047 and, second, because even if a lack of publication of some relevant text had been demonstrated, the promoting party did not set forth the grounds why they considered it indispensable to publish the modifications of interest to them. Consequently, the action is declared without merit as to this point." In the sub lite, after analyzing the actions of unconstitutionality filed one by one, it is found that this Court's requirements are not met; for example: the claimant Campos expresses, at most, that a novel element is introduced, such as the creation of the Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, in support of her thesis that advisory review by the Corte Suprema de Justicia was necessary in accordance with numeral 167 of the Carta Fundamental. The active coadjuvant Monge Molina merely states that the text approved in the Special Commission on July 27, 2017, had substantial changes, such as: worker contribution, retirement age, years of service, functions removed from the Consejo Superior, transitory provisions, without providing an argumentation on what those changes consisted of.

As can be observed, without much effort, the claimants do not provide minimum arguments for the grievance to be upheld, and therefore, following this Court's precedents, the grievance on this point must be rejected.

XVII.- Judge Hernández López writes. Regarding the obligation established in Article 167 of the Political Constitution. In the claimants' opinion, the bill processed under file number 19.922 was not properly submitted for advisory review by the Poder Judicial as provided in Article 167 of the Political Constitution, even though, in their view, it affects or modifies the administrative organization of the Poder Judicial, which will produce direct effects on the justice administration service it provides, as well as on the independence constitutionally guaranteed to that branch and to the judges responsible for dispensing justice. To begin the analysis of this point, it is necessary to start from what Article 167 of the Political Constitution establishes:

"ARTICLE 167.- For the discussion and approval of bills referring to the organization or functioning of the Poder Judicial, the Asamblea Legislativa must consult the Corte Suprema de Justicia; to depart from its opinion, the vote of two-thirds of the total members of the Asamblea shall be required." From this numeral, for the purposes of this action of unconstitutionality, the phrase "organization and functioning of the Poder Judicial" is of interest, since it is the task of the Constitutional Chamber, in this context, to decipher its content in order to verify its scope and whether or not this obligates the Asamblea Legislativa to carry out that consultation regarding the subject matter of legislative file 19.922 that finally resulted in the issuance of Law 9544 amending the Régimen de Jubilaciones y Pensiones del Poder Judicial. The matter has not been without debate, but the majority of the Chamber has been consistent in establishing that the concept of "organization and functioning" referred to in the cited article concerns aspects related to the jurisdictional function of the Poder Judicial, considering that a bill concerns such matters when it contains, in its text, explicit provisions that order the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Poder Judicial, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions, taking into account that the constitutional provision under discussion harmonizes two fundamental aspects: on the one hand, the independence of the Poder Judicial, and on the other, the exercise of the legislator's freedom of configuration, which has no limit other than the Law of the Constitution. Furthermore, from Article 167 of the Political Constitution, two main lines of work of the Poder Judicial definitely emerge: on the one hand, everything related to its organization and functioning in its essential function, which is the jurisdictional function and the administration of justice, but on the other hand also, and no less important, everything related to its organization and functioning from an administrative standpoint. The Poder Judicial definitely performs both functions in both areas, and precisely for that reason its function should not be classified as solely jurisdictional, because to perform the latter, it indisputably must carry out administrative work related to its budgetary situation, management of its human and material resources, organizational climate, personnel rotation, among other aspects that are not strictly the function of administering justice, but which lay the groundwork for it to be carried out. From this perspective, then, and regarding the advisory review that the deputies submitted to this Court in November 2017 regarding the bill contained in legislative file 19.922, it is worth mentioning that in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, in which that optional legislative advisory review was heard, this Chamber stated:

"(…) this Court considers that the subject matter of legislative file number 19.922 does not fall within the scenarios established by Article 167 of the Political Constitution and, therefore, there was no obligation to conduct an advisory review with the Corte Suprema de Justicia. In that sense, it is established that, although the questioned bill creates a body attached to the Poder Judicial, namely the Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial, which assumes the functions previously granted to the Consejo Superior del Poder Judicial, the fact is that these elements refer to matters that are characteristic of the Fondo de Jubilaciones y Pensiones del Poder Judicial, that is, typically administrative functions that have no impact, at least directly, on the jurisdictional function of the Poder Judicial, which is precisely what constitutional numeral 167 protects. We are not, then, before the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Poder Judicial, nor does it create, ex novo, substantially modify, or eliminate materially jurisdictional or administrative functions. Note that the new body – the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial – forms part of the Poder Judicial's structure, and its functions are typically administrative, namely the administration of the cited Fund, which is not subsumable within the constitutional requirement of modifications to the organization and functioning of the Corte Suprema de Justica that pertain to its typical, exclusive function, i.e., the jurisdictional function and those essential administrative functions that support its primary function. In any case, and without prejudice to the foregoing, it is necessary to mention that folio 2625 of the legislative file shows that, in response to a motion approved on July 27, 2017, by the Special Commission, through official letter number AL -20035-OFI-0043-2017 of July 31, 2017, the head of the Área de Comisiones of the Asamblea Legislativa granted a hearing to the Poder Judicial regarding the affirmative majority opinion, with the Corte Suprema de Justicia proceeding to issue its opinion through official letter number SP-253-17 of August 10, 2017, as verified from the review of folios 2759 to 2807 of the legislative file. In that sense, it is clear, then, that the Poder Judicial was able to issue its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, even before it was known to the Plenary. By virtue of the foregoing, the Chamber considers that the defect alleged by the consulting parties is not present." XVIII.- Judge Hernández López writes. Regarding the Advisory Review to the Poder Judicial of the Bill contained in legislative file 19.922. In the Reglamento de la Asamblea Legislativa, there are two provisions that must be mentioned when citing Article 167 of the Political Constitution, as they establish the procedure to follow for conducting the advisory review referred to in the constitutional provision. In that sense, Article 126 of the Reglamento de la Asamblea Legislativa provides the following:

"ARTICLE 126.- Mandatory constitutional advisory reviews When a bill is discussed or a motion is approved within a commission which, according to Articles 88, 97, 167, and 190 of the Political Constitution, must be submitted for advisory review, the respective consultation shall be carried out by the President. The advisory reviews of the commissions shall be considered as made by the Asamblea itself and, as relevant, the provisions of Article 157 of this Reglamento shall apply." For its part, that cited Article 157 establishes the following:

"ARTICLE 157.- Institutional advisory reviews When in the discussion of a bill the Asamblea determines that the Tribunal Supremo de Elecciones, the Universidad de Costa Rica, the Poder Judicial, or an autonomous institution must be consulted, and the Commission has not done so, consideration of the bill shall be suspended, proceeding to carry out the corresponding consultation. If after eight business days no response to the advisory review referred to in this article has been received, it shall be understood that the consulted body has no objection to the bill. In the event that the consulted body, within said term, makes observations on the bill, it shall automatically go to the respective commission, if the Asamblea accepts said observations. If it rejects them, respecting what the Political Constitution determines, the matter shall continue its ordinary course." From legislative file 19.922, it appears that the Special Commission Charged with Examining and Issuing an Opinion on the Bill "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922," in ordinary session No. 01 of September 13, 2016, unanimously approved a procedural motion for the text to be submitted for advisory review to the Corte Suprema de Justicia (folios 168 and 169 of Volume 1 of legislative file No. 19.922). Through official letter CE208-BI-02-2016 of September 14, 2016, the acting Head of the Área of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa, with instructions from the President of the cited Special Commission, submitted an advisory review directed to the President of the Corte Suprema de Justicia regarding the substitute text of file No. 19.922 (folio 172 of Volume 1 of the legislative file). In turn, the cited bill was transferred for study by the Magistrates of the Corte Suprema de Justicia, and the report rendered was heard in the session of Corte Plena No. 29-16 of September 26, 2016, article XVIII, being communicated to the Asamblea Legislativa through official letter SP-288-16 of September 28, 2016, with the express indication that the consulted bill affects the organization and functioning of the Poder Judicial (folio 284 Volume 2 of the legislative file). Subsequently, in Ordinary Session No. 15 of March 29, 2017, the Special Commission Charged with Examining and Issuing an Opinion on the Bill "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922," approved a third substitute text, and the President of that Special Commission issued instructions for an advisory review to be carried out; therefore, through official letter AL-20035-OFI-0029-2017 of April 17, 2017, the Head of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa sent to the President of the Corte Suprema de Justicia an advisory review of the substitute text approved in the session of March 29, 2017 (folio 1757 of Volume 8 of the legislative file). In turn, Corte Plena, in session No. 9-17 of April 24, 2017, article XXIX, heard the advisory review submitted to it, and through official letter SP-118-17 of April 26, 2017, signed by the Secretary General of the Corte Suprema de Justicia, agreed to inform the Special Legislative Commission that Corte Plena issued a negative opinion on the consulted bill, while also considering that it affects the organization and functioning of the Poder Judicial (folio 1829 Volume 8 of the legislative file). In addition to the foregoing, it appears from legislative file No. 19.922 that on July 27, 2017, the Deputies of the Special Commission presented a new substitute text which, in extraordinary session No. 23 of that date -July 27, 2017-, was approved and an opinion issued with 8 deputies in favor and 1 against (folio 2449 of Volume 10 of the legislative file); motions were also approved to conduct several advisory reviews, including one to the Corte Suprema de Justicia, which was submitted through official letter AL-20035-OFI-0043-2017 of July 31, 2017, in which the Head of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa sent to the President of the Corte Suprema de Justicia a consultation regarding the Dictamen Afirmativo de Mayoría approved in that Commission on July 27, 2017 (folio 2625 of Volume 11 of the legislative file). In turn, Corte Plena, in session 26-17 of August 7, 2017, article XXX, heard the advisory review submitted by the cited Special Commission on the Dictamen Afirmativo de Mayoría and, for the third time, issued a negative opinion regarding the bill and indicated that the bill processed under file No. 19.922 affects the organization, structure, and functioning of the Poder Judicial; a decision communicated to the Asamblea Legislativa through official letter SP-253-17 of August 10, 2017 (folio 2759 of Volume 12 of the legislative file). Based on the foregoing, regardless of whether some of the claimants consider that the Corte Suprema de Justicia was not formally consulted on the content of the bill processed in legislative file No. 19.922, the fact of the matter is that, in the judgment of this Court, the Corte Suprema was indeed consulted on 3 occasions and was indeed able to issue its opinion on those 3 occasions, as stated in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018:

"(…) it is necessary to mention that folio 2625 of the legislative file shows that, in response to a motion approved on July 27, 2017 by the Special Commission, through official letter number AL -20035-OFI-0043-2017 of July 31, 2017, the head of the Área de Comisiones of the Asamblea Legislativa granted a hearing to the Poder Judicial regarding the affirmative majority opinion, with the Corte Suprema de Justicia proceeding to issue its opinion through official letter number SP-253-17 of August 10, 2017, as verified from the review of folios 2759 to 2807 of the legislative file. In that sense, it is clear, then, that the Poder Judicial was able to issue its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, even before it was known to the Plenary. By virtue of the foregoing, the Chamber considers that the defect alleged by the consulting parties is not present." Certainly, the Chamber has considered that the Corte Suprema de Justicia was able to issue its opinion, and from the study of the legislative file, it has been duly demonstrated that the Comisión de Asuntos Jurídicos sent 3 official letters through which an advisory review was made to the Corte Suprema de Justicia: 1) official letter CE208-BI-02-2016 of September 14, 2016 (folios 169 and 172 of Volume 1); 2) official letter AL-20035-OFI-0029-2017 of April 17, 2017 (folio 1757 of Volume 8); and 3) official letter AL-20035-OFI-0043-2017 of July 31, 2017 (folio 2625 of Volume 11). Now, as regards this action of unconstitutionality, having overcome the question of whether the consultation was carried out, because the answer is more than evident that it was, the claimants' subsequent claim is that this Chamber should analyze the matter regarding the response provided by the Corte Suprema de Justicia to the Asamblea Legislativa, specifically regarding the negative opinion issued by that Branch of the Republic and the consequences derived from that opinion, because they consider that Law 9544 challenged here suffers from a defect in the legislative procedure that must be analyzed through the channel of subsequent constitutional review. Recall that in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, through which the Consulta Legislativa Facultativa filed regarding legislative file No. 19.922 was heard, the Chamber conducted a prior constitutional review and issued an opinion referring to the constitutional validity of a bill that, at that time, was still pending final approval; a pronouncement whose object was to carry out, within the constitutional and regulatory framework, only an analysis of the issues consulted in relation to the legislative procedure that was being carried out as of that date of the consultation.

XIX.- Judge Hernández López writes. Regarding the negative opinion issued by the Corte Suprema de Justicia in relation to legislative file No. 19.922.- According to what the claimants affirm, and as has been demonstrated from the study of legislative file No.

19,922, the Supreme Court of Justice issued 3 responses to the consultations put to it regarding the bill, and on all 3 occasions it rendered a negative opinion, indicating each time that it opposed it because the “organization and functioning” of the Judiciary was being affected, given that the bill sought the creation of an Administrative Board of the Judiciary’s Retirement and Pension Fund, as an organ of the Judiciary that would have complete functional, technical, and administrative independence to exercise the powers and authorities conferred on it by law, which would be granted the functions and powers that, at the time the opinion was issued, were the competences of the Full Court and the Superior Council, noting further that this Board would have instrumental legal personality to exercise the authorities assigned to it by Law, as well as to exercise the judicial and extrajudicial representation of the Fund. Within the Full Court’s thesis, it was affirmed that this regulation relating to the Administrative Board would affect the organization and functioning of the Judiciary since it would eliminate the competence of the Superior Council regarding the technical, functional, and administrative powers over the Retirement and Pension Fund and would transfer them to the Administrative Board. In addition, the Court pointed out that it would have an impact on the organization and functioning in that it would suppress the power of Government that the Full Court possessed regarding the definition of the Fund’s investment policy and regulation. The representative of the Supreme Court of Justice stated that this reform established a Board as an organ of maximum deconcentration with its own budget, which would imply that all the investment that the Judiciary had made up to that date in specialized personnel and in the development of a computer system that serves as the basis for the Fund’s operation would be wasted. The Supreme Court added that while the idea of specializing the persons who administer the Fund is understood, and that they may have all the independence and objectivity that the mandate requires, that collegial body considered that this can be achieved with minimal deconcentration, noting that this figure does not permit the superior to take over (avocarse) the administrative acts relating to the Fund, nor could the conduct of the Administrative Board be reviewed or substituted. Likewise, the Full Court warned that this Board would be removed from orders, instructions, or circulars, meaning it would have total independence from the Judiciary. In addition to the foregoing, the Full Court argued that the bill has to do with the structure and functioning of the Judiciary because the renewal of personnel will be affected, given that there would be older employees who would remain working solely because of the decrease their income would suffer if they were to retire, given that the life project of all judicial employees is directly affected since the bill means a decrease in retirement, even though they have met all the legal requirements to fully enjoy the retirement right. The Supreme Court of Justice argued that the judicial population would be at a crossroads because, while there is the desire to opt for the right and the motivation to retire to rest, it is also true that they would find themselves in a condition in which they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to retirement, and those natural due to age; a process that also has its restrictions because the Organic Law of the Judiciary prohibits retired persons from seeking other employment, and socially it is a reality that after 40 years of age, there are factual limitations regarding labor re-entry. The Full Court stated that the bill has a significant relationship with the structure and functioning since it reduces the Judiciary’s competitiveness in the labor market, to the detriment of the quality of the Administration of Justice; the salary for positions will be diminished by the contribution to the pension and retirement regime, which is 4 times greater than the contribution of other regimes, making it difficult to attract human resources and harming the public service. Based on these arguments, all visible in the legislative record, the Supreme Court of Justice communicated to the Legislative Assembly its negative opinion and opposition to the bill being processed in legislative record No. 19,922; an opinion that was also presented verbally before the Special Commission responsible for processing the bill at the different hearings granted to the Supreme Court of Justice and attended by various representatives of the Judiciary.

XX.Drafted by Magistrate Castillo Víquez. Regarding the organization and functioning of the Judiciary in relation to the Instrumental Legal Personality of the Administrative Board of the Judiciary’s Retirement and Pension Fund.- In relation to what has been analyzed in the 3 preceding considerandos, the claimants also affirm that the creation of the Administrative Board of the Judiciary’s Retirement and Pension Fund affects the organization and functioning of the Judiciary, and therefore they ask the Chamber to so declare. In order to analyze this allegation, we must begin with the content of Article 239, which provides:

“Article 239.- The Administrative Board of the Judiciary’s Retirement and Pension Fund is created as an organ of the Judiciary, which shall have complete functional, technical, and administrative independence to exercise the powers and authorities conferred on it by law.

The Board is responsible for:

• a)Administering the Pension and Retirement Fund of the Employees of the Judiciary.
• b)Studying, hearing, and resolving the retirement and pension applications submitted to it.
• c)Collecting the contributions corresponding to the Fund and exercising the necessary collection actions.
• d)Attending to the applications for re-entry to remunerative work by disabled retirees.
• e)Performing actuarial studies with the periodicity established in the regulations issued for that purpose by the National Council for Supervision of the Financial System (Conassif) and the Superintendency of Pensions (Supén).
• f)Investing the Fund’s resources, in accordance with the law and with the regulations issued for that purpose by the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• g)Complying with the legislation and regulations issued by both the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• h)Issuing rules for the appointment, suspension, removal, and sanction of personnel; as well as approving the annual operational plan, the operating budget, its modifications, and its annual liquidation.
• i)All other authorities assigned to it by law and its regulations.

Based on the results of the actuarial studies, and with authorization from the Superintendency of Pensions, the Administrative Board may modify the initial parameters established in this law regarding eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime.

The Board shall have instrumental legal personality to exercise the authorities that the law assigns to it, as well as to exercise the judicial and extrajudicial representation of the Fund.

It shall be financed through a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions charged to the Fund. These resources will be used to pay the per diem allowances of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses. Idle resources shall be invested in accordance with the provisions of Article 237 of this law” (As reformed by Article 1 of Law No. 9544 of April 24, 2018).

Thus, as is evident from Article 239 of Law 9544 cited above, it created the Administrative Board of the Judiciary’s Retirement and Pension Fund as an organ of the Judiciary that shall have complete functional, technical, and administrative independence to exercise the powers and authorities conferred on it by law, and that this Board shall have instrumental legal personality to exercise the authorities that the law assigns to it, as well as to exercise the judicial and extrajudicial representation of the Fund. It must be noted that, on this subject, the Chamber has accepted as constitutionally correct the figure of instrumental legal personality -organ-person-, understanding that it is not a matter of attributing a competence exclusively to a lower organ to the detriment of the competence of the hierarchically superior organ, but rather of attributing that competence to a new legal person who is created and who will be, as is evident from its functions and legal composition, attached to a superior organ which, in the specific case, would be the Judiciary. In that sense, the Chamber has thus understood that a deconcentrated organ to the maximum degree with instrumental legal personality is, in reality, an organ-person in the strict legal sense of the concept (see in this sense judgment No. 4681-97 of 14 hours 42 minutes of August 14, 1997, 2004-08474 of 15 hours 11 minutes of August 4, 2004, and 2005-015716 of 14 hours 55 minutes of November 16, 2005, among others). Likewise, this Tribunal has indicated that it is valid, in light of Constitutional Law, to confer instrumental legal personality on a deconcentrated organ for the purpose of managing its own budget and thus carrying out, in a more efficient manner, the public function it is called to perform. Precisely, this budgetary personification allows it to administer its resources independently of the Budget of the public entity to which it belongs, even though it remains subordinate to it in all aspects not specific to the function given to it by deconcentration and those derived from its instrumental legal personality (see in this sense judgment No. 2001-11657 of 14 hours 43 minutes of November 14, 2001).

Observe that in this aspect the claimants allege that, despite the Supreme Court of Justice having rendered a negative opinion regarding the bill processed in legislative record 19,922, and definitively having an impact on the organization and functioning of the Judiciary, the Legislative Assembly continued with the processing of the record, omitting to take into account that the consequence of that position expressed by the Judiciary necessarily implied that the bill had to be approved by a qualified majority. In advisory opinion No. 2018-005758 of 15 hours 40 minutes of April 12, 2018, we expressed the following:

“III. REGARDING THE MANDATORY CONSULTATION TO THE SUPREME COURT OF JUSTICE. It is alleged that the Framework Law of Pensions was processed and approved by the Legislative Assembly without the mandatory consultation being made to the Supreme Court of Justice and to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), in accordance with the provisions of Articles 167 and 190 of the Political Constitution. The alleged violation of procedure for not having consulted the former was already known to this Chamber in judgment number 0846-92, of thirteen hours thirty minutes of March twenty-seventh, nineteen ninety-two; in which the unnecessary nature of the consultation was indicated because the referenced Law does not affect judicial employees at all:

\"In this regard, it is of no interest to rule on the mandatory consultation to the Court, given that the latter, on the occasion of the consultation evacuated regarding the bill for the Organic Law of the Judiciary, accepted the modification of the retirement age for its employees to sixty years, as the bill indicates; and with a similar rule and without prejudice to similar reservations to guarantee rights acquired in good faith.\" Furthermore, said consultation is mandatory only when it concerns the \"organization and functioning\" of the Judiciary, functioning that is referred to the jurisdictional function, having as its objective guaranteeing the independence of the Judiciary; this procedure does not refer to the granting of benefits for judicial employees, as is the matter under study, and therefore the consultation is unnecessary.” “Regarding the second argument, the Chamber considers that the pension regime for judicial employees challenged here does not modify the legal regime by which the Supreme Court of Justice administers justice, nor does it reorder the number or the competences of the existing courts. Nor can an merely indirect effect be alleged against the rule, which would be caused by a change in the general budget of the Judiciary, which in turn could have an impact on the jurisdictional function. A second-degree effect such as this is not a criterion of sufficient constitutional importance to invalidate an act of the Legislative Branch”.

It is worth adding that to determine if, as is affirmed, the Judiciary’s Pension Fund is part of its structure and functioning and therefore part of the protection of its functional independence, it is necessary to go back to its origins. As is known, the creation of the Judiciary’s Pension Fund was created by Law No. 34 of July 9, 1939. The discussion that would give rise to this system began to take shape several years earlier, in 1933. Before this date, there existed a General Law of Pensions issued in 1912, and extended in 1925, which established a single system of contributions for the employees of the Public Administration—understood in a broad sense—; however, in the case of Magistrates, the usual practice was that they received an amount set for each specific case by agreement of the Full Court, once they decided to retire, in a manner similar to a leave with full pay.

From the legislative records and historical documents, it is gleaned that at the beginning of June 1933, however, an event brought the precariousness of the existing system to the forefront: the death of Magistrate Tomás Fernández Bolandi. The loss of someone considered a great legal scholar had a profound impact on the Costa Rican legal world, and highlighted the helplessness in which the families of the highest judicial employees were left. Indeed, within a few months, the Full Court began to receive successive notes, signed by both judges and officials, referring to the economic hardships in which the family of said Magistrate had been left; and very soon the need to create an independent pension system arose, to prevent that type of economic distress.

While this concern was growing, Congress approved a new General Law of Pensions in 1935, which kept the contribution system introduced in 1925 in force; however, no mention was made in that text of judicial employees—which contrasts with the specificity with which it included, among others, the victims of the disturbances in San Ramón in 1931, the families of those fallen in the Costa Rican-Panamanian war of 1921, and even the surviving relatives of the National Campaign of 1856—. Thus, the impression was created that it was the legislator's intention that the Judiciary have its own regime; however, such an aspiration was not realized either upon the approval of the Organic Law of the Judiciary in November 1937.

It was necessary to wait until June 1938 for a bill to enter the legislative process to add the necessary provisions for the birth of the independent pension regime to said Law; but the pace at which this bill advanced came to increase after the death of Magistrate Antonio Álvarez Hurtado in November of that same year. This new death underscored the need to create this system, and various judicial employees again manifested this through notes addressed to the Full Court.

Thus, in July 1939, Law No. 34 was finally issued, which—as indicated—reformed the Organic Law to add the provisions related to the pension fund. Explicitly, also, the new legal text provided that judicial employees could not be required to continue contributing—under the terms of Law No. 115 of August 11, 1925—to any other pension regime. That is to say, there is no doubt that the legislator's intention at that moment was to keep the Judiciary's system completely independent and separate from the others.

The birth of the fund, as seen, originated in a very particular historical situation and was part of the trend of political decisions on this topic in the 19th century—in our country—, tending towards specializing pension regimes rather than unifying them. From the regulations issued for war pensions after the 1856 conflict, and the creation of the first Teachers' Pension Fund in 1886 (through Law No. 21 of June 11 of that year), the predominant current was the separation of pension regimes. For example, the General Law of Pensions of 1912 previously referred to did not affect the Teachers' Fund, which in turn underwent reforms in 1916 that expanded its solidarity nature, but never affected its independence.

Nor was this the spirit that inspired the birth of the Disability, Old Age, and Death (Invalidez, Vejez y Muerte, IVM) regime managed by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). Created by Law No. 17 of October 22, 1943, and operational starting in 1947, it was conceived as a subsidiary regime, since its coverage was initially limited to public employees over 65 years of age who were not contributing to another system. Even in the same period, other special pension systems were created: the Treasury regime (1943), the National Registry regime (1939), the Communications regime (1940), the MOPT regime (1944), the INCOFER regime (1939), and even the Musicians and Military Bands regime (1935). All antecedents indicate that the various regimes were intended to coexist with one another, with the IVM covering by default those who were not affiliated with another system. The expansion of IVM coverage began in 1960, gradually encompassing all social sectors.

What is clear is that the creation of the Judiciary’s pension regime was key to the stability of the administrative and judicial career of its employees and officials, and became a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. It allowed, along with the latter, to provide stability to judges and other employees and officials while active and inactive, which made the judicial career attractive to many jurists and thereby favored the stability and specialization of many officials in different branches of the judicial apparatus, but clearly, it was not created as an intrinsic element of judicial independence (a core aspect of the constitutional protection of Article 167 when it speaks of “structure and functioning”), which is constitutionally based on other factors, such as the existence of a career that guarantees objectivity in the selection of judges, based on criteria of suitability and stability, the economic and political independence of the organ, among others; but the legislator could well have opted for a single regime for all public employees or workers in general, without it being possible to affirm that this detracts from the organ's independence.

What is part of judicial independence is that judges have dignified economic sufficiency, both active and inactive, regardless of whether the pension regime is specific to judges or not. In fact, not all countries have particular regimes for judges, but the most consolidated democracies do take pains to care for the judiciary as a key piece of the stability of the Rule of Law. Countries that have bet on the force of law and not of arms for their stability depend on the quality of judges to have a quality democracy, since they are the strategic guardians of the rule of law. In the case of our country, as the State of the Nation has well pointed out, the Judiciary has the particularity of being a conglomerate of institutions highly relevant to the rule of law (Prosecutor's Office, Judicial Police, Public Defense, and Judiciary) and it was its strength that largely allowed the development and consolidation of democracy in the 20th century in our country. The first State of Justice report states this when noting:

“The Judiciary has been key to Costa Rican democracy.” “The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it.” In that sense, it was a success for the legislator to endow the Costa Rican justice administration system with guarantees and incentives, because only thus could the rule of law that emerged from the Second Republic be realized, which would depend for its success on a robust regime of legality and no longer—as was said—on the force of arms, a path chosen by the majority of the world's countries, especially Latin American ones.

Nevertheless, it cannot be affirmed—from the perspective of the majority of the Chamber—that the Judiciary’s pension regime is part of the essential content of judicial independence or that it affects its structure and functioning, although, as was said, it has historically functioned as its necessary complement and for the good of Costa Rican democracy, it must be ensured that it is as stable and dignified as possible.

Now, in view of the foregoing, this Tribunal considers that the subject matter of legislative record number 19,922 does not fall within the assumptions established by Article 167 of the Political Constitution and, consequently, there was no obligation to conduct a consultation with the Supreme Court of Justice. In that sense, it is established that, although the challenged bill creates an organ attached to the Judiciary, such as the Administrative Board of the Judiciary’s Pension and Retirement Fund, which assumes the functions previously granted to the Superior Council of the Judiciary, the truth is that those elements refer to aspects that are specific to the Judiciary’s Retirement and Pension Fund, that is, typically administrative functions and that have no impact, at least directly, on the jurisdictional function of the Judiciary, which is precisely what constitutional numeral 167 protects. We are not, therefore, dealing with the creation, substantial variation, or suppression of strictly jurisdictional organs or of an administrative nature attached to the Judiciary or that creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions. Note that the new organ – the Administrative Board of the Judiciary’s Retirement and Pension Fund - is part of the structure of the Judiciary, whose functions are typically administrative, i.e., the administration of the cited Fund, which is not subsumable under the constitutional requirement of modifications to the organization and functioning of the Supreme Court of Justice that pertain to its typical, exclusive function, i.e., the jurisdictional one and those essential administrative ones that support its primary function. In any case, and without detracting from the foregoing, it is necessary to mention that on folio 2625 of the legislative record, it is recorded that, in response to a motion approved on July 27, 2017, by the Special Commission, through official letter number AL -20035-OFI-0043-2017 of July 31, 2017, the head of the Commissions Area of the Legislative Assembly granted a hearing to the Judiciary regarding the affirmative majority report, with the Supreme Court of Justice proceeding to issue its opinion through official letter number SP-253-17 of August 10, 2017, as verified from the study of folios 2759 to 2807 of the legislative record. In that sense, it is clear then that the Judiciary was indeed able to issue its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, even before it was known by the Plenary. By virtue of the foregoing, the Chamber considers that the defect alleged by the consulting parties is not present.” (the highlighting does not correspond to the original) For the majority of this Tribunal, there are no reasons that justify varying the opinion already expressed in that advisory opinion, in the sense that the subject matter of legislative record No. 19,922 and which was finally approved as Law No. 9544, does not fall within the assumptions established or contemplated by Article 167 of the Political Constitution and, consequently, there was neither a constitutional obligation to conduct a consultation with the Supreme Court of Justice, nor—as a corollary—was there an obligation for the cited bill to be approved by two-thirds of the total members of the Legislative Assembly, given the Supreme Court of Justice’s negative opinion on the bill. Ergo, the unconstitutionality action regarding this point must also be dismissed.

XXI.- Drafted by Magistrate Castillo Víquez. Regarding the organization and functioning of the Judiciary in relation to the Principle of Judicial Independence. Finally, some of the claimants argue that the impact of Law 9544 on the organization and functioning of the Judiciary extends to the Principle of Judicial Independence and that it is affected by several factors: a) by the creation of the Administrative Board; b) by the elimination of the functions that the Full Court and the Superior Council had in relation to the administration of the Retirement and Pension Fund; c) because the Judiciary was stripped of the competence to give itself its own organization, thereby altering the protective shield that this principle grants it against intrusion by the Political Power; d) because the system of checks and balances was altered and the Legislative Branch committed an intrusion into the Judiciary by making changes to the rules governing its administrative structure with an impact on the budget; e) that despite the fact that the Original Constituent gave clear signs of its intention to guarantee the independence of the Judiciary, both at the budgetary level and in terms of organization or functioning, the legislative procedure that resulted in Law 9544 challenged here has resulted in a violation of the provisions of Articles 9, 11, 152, 154, 167, and 177 of the Political Constitution. Certainly, the Chamber in judgment No. 2008-005179 of 11 hours of April 4, 2008, stated that it had to be taken into consideration that constitutional Article 167 harmonizes two fundamentally important aspects: on the one hand, the independence of the Judiciary, and, on the other, the exercise of the legislator's freedom of configuration or conformation, which has no other limit than Constitutional Law, specifying that the ordinary legislator enjoys a broad freedom of conformation of the social, economic, and political reality, through the exercise of the legislative power, which resides originally in the people and is constitutionally delegated to the Legislative Assembly due to its nature as a representative political organ (Articles 105 and 121, subsection 1, of the Political Constitution), and that this legislative power can only have the limits established by the constituent and, in general, the block of constitutionality, such that to avoid an undue limitation of the freedom of legislative configuration, any provision that establishes a condition or limit that aggravates it must be interpreted in its fair and reasonable terms, to facilitate its exercise. The Chamber indicated on that occasion that an important barrier established by the constituent to legislative discretion is constituted, precisely, by constitutional numeral 167, in order to maintain the independence of the Judiciary by providing for a mandatory consultation on bills relating to the organization and functioning that concern that Branch of the Republic, and also provided that this limit must be interpreted in its true dimension, so that it operates when the bill substantially, objectively, and certainly refers to such matters, otherwise the ordinary legislator's freedom of configuration is limited, unnecessarily and unjustifiably.

Based on this contextual framework set forth by the Chamber in the referenced judgment and upon appreciating the integral content of Law 9544, this Court, as the supreme interpreter of Constitutional Law and guardian of constitutional supremacy (articles 10 of the Political Constitution and 1 of the Law of Constitutional Jurisdiction), considers that, in the specific case, the challenged regulations, seen as a whole and in the sum of each of the arguments raised by the plaintiffs, do not entail an impact on the organization and functioning of the Judicial Branch. First, it must be recalled that the Chamber has sustained a solid criterion to the effect that mandatory institutional consultations, such as that of Article 167 of the Political Constitution, would be improper when a bill is of a national or general nature (see judgments number 2018-019511 of 21:45 on November 23, 2018, 2012-002675 of 11:52 on February 24, 2012, and 2008-004569 of 14:30 on March 26, 2008); however, as explained in the preceding considering paragraph, with the approval and entry into force of the challenged law, the majority of this Court concludes that there is no impact on those aspects in the terms of Article 167 of the Constitution. The fact that it creates an Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) does not per se entail the creation of an organ that substantially varies the administrative functions of the Judicial Branch; the same occurs with the elimination of those functions that the Supreme Court of Justice and the Superior Council had in relation to the matter, hence it did not fall under the assumption of article 167 of the Constitution. That is, essential administrative competencies connected to the jurisdictional function were not being removed. Even, as is well known, the administration of the aforementioned fund is financed with a parafiscal contribution of 5 per 1000 colones from salaries, pensioners, and retirees. We are not, therefore, facing an ex novo creation that substantially varies the administrative functions of the Full Court and suppresses others from it, as well as doing the same with the Superior Council. In this regard, the Chamber itself has indicated in judgment number 2008-004569 of 14:30 on March 26, 2008, that a reinforced law could be considered necessary when the attributed or transferred competencies entail a substantial variation of the purposes and tasks of the entity which, in this case, would be the highest representative of the Judicial Branch, the Full Court, which is the situation we are in.

It is important to remember that the concept of judicial independence has two dimensions: the individual (also called personal or subjective) and the institutional (relating to the Judicial Branch). For the purposes of this action, it is important to take into account that a transcendental element to prevent the principle of judicial independence from becoming nugatory is to understand that it encompasses several facets beyond the organic, institutional, and functional, and can also be viewed from the individual dimension, relating to the worker of the Judicial Branch in relation to all the factors that surround them and which, in turn, allow for guaranteeing the full and effective fulfillment of that principle vis-à-vis the institution. From this perspective, a very important part of this judicial independence is the budgetary allocation that has been guaranteed to the Judicial Branch at the constitutional level, it being necessary to remember that the legislators who—in their time—approved the reform to Article 177 of the Political Constitution had the vision of securing for this Branch of the Republic a minimum budget of 6% of the ordinary revenues of the Republic with which it could perform the functions and powers that have been conferred upon it, thereby preventing the determination of the budget from becoming an instrument of political intervention in the jurisdictional function and, with it, a mechanism to cast adrift the independence of this Branch of the Republic. In this regard, the Chamber stated it very clearly in judgment No. 2018-005758 of 15:40 on April 12, 2018, when it stated:

"What is indeed part of judicial independence is that judges have dignified economic sufficiency, whether active or inactive, regardless of whether the pension regime (régimen de pensiones) is specific to judges or not. In fact, not all countries have particular regimes for judges, but the most consolidated democracies do strive to care for the judiciary as a key piece of the stability of the Rule of Law (Estado de Derecho). The countries that have bet on the force of law and not of arms for their stability depend on the quality of the judges to have quality democracy, as these are the strategic guardians of the rule of law. In the case of our country, as the State of the Nation report has well noted, the Judicial Branch has the particularity of being a conglomerate of institutions very relevant to the rule of law (Prosecutor's Office, Judicial Police, Public Defense, and Judicature) and it was its strength that largely permitted the development and consolidation of democracy in the 20th century in our country. Thus, the first report on the State of Justice records when stating:

'The Judicial Branch has been key to Costa Rican democracy.' 'The fact that Costa Rica has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it.' In that sense, it was a success of the legislator to endow the Costa Rican justice administration with guarantees and incentives, because only in this way could the rule of law that emerged from the Second Republic materialize, which would depend for its success on a robust regime of legality and no longer—as was said—on the force of arms, the path that the majority of the world's countries, especially Latin American ones, had chosen." The Chamber has also stated that:

"(...) What is clear is that the creation of the Judicial Branch pension regime was key to the stability of the administrative and judicial career of its servants and officials, and came to be a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. It allowed, together with the latter, providing stability to judges and other servants and officials whether active or inactive, which made the judicial career attractive to many jurists and thereby favored the stability and specialization of many officials in different branches of the judicial apparatus, but clearly, it was not created as an intrinsic element of judicial independence (a core aspect of the constitutional protection of Article 167 when it speaks of 'structure and functioning'), which is constitutionally based on other factors, such as the existence of a career that guarantees objectivity in the selection of judges, based on criteria of suitability and stability, the economic and political independence of the organ, among others; but the legislator could well have opted for a single regime for all public employees or workers in general, without it being possible to affirm that this diminishes the independence of the organ" (see judgment number 2018-005758 of 15:40 on April 12, 2018).

In relation to the foregoing, it is important to mention that this Court, in judgment number 2018-005758 of 15:40 on April 12, 2018, further stated:

"However, it cannot be affirmed—from the perspective of the majority of the Chamber—that the Judicial Branch pension regime is part of the essential content of judicial independence or that it affects its structure and functioning, although yes, as was said, it has historically functioned as its necessary complement and for the good of Costa Rican democracy, care must be taken to ensure it is as stable and dignified as possible." From this opinion, it is interesting to highlight that, while it is true, the majority of the Chamber considers that the Judicial Branch Retirement and Pension Regime—understood as a whole, as a social security system that seeks to guarantee, to the judicial population, protection against contingencies derived from old age, disability, or death through the recognition of a retirement, pension, and benefits determined by Law through funds collected and designated for this purpose—as an instrument, is of great relevance for its strengthening, this does not mean that it is a condition without which an independent Judicial Branch cannot exist.

In this sense, it is one thing to recognize the role that the Judicial Branch's pension regime has played in strengthening the stability of the judicial career and the Judicial Branch as such, and quite another that the existence of an autonomous pension regime is a necessary condition for judicial independence to exist. Not all countries have an autonomous pension regime for their judges and officials, and it cannot be said that this per se implies that they are not justice administrations that enjoy independence. In our country, the Supreme Electoral Tribunal itself, which enjoys independence in the exercise of its competencies, does not have its own autonomous pension regime for its judges, and no one could affirm that this violates its independence insofar as it acts as a jurisdictional organ. Thus, the fact that it is advisable to protect the pensions of judges and judicial personnel in general and to protect the Judicial Branch from negative influences and intervention by external factors such as political power, organized crime, criminal groups, among others, does not mean that the legislator's initiative to make changes to its pension regime, based on actuarial studies and the appearance of technical experts during the legislative process, signifies a hollowing out of the essential content of judicial independence.

Nor does the Chamber consider that they are detrimental to its economic independence, protected under Article 157 of the Constitution, because the 6% constitutional minimum ceiling for the administration of justice is not affected by the challenged law. The Legislative Assembly has respected that percentage for the Judicial Branch and even, for more than 15 years, has assigned it a higher one, considering new assignments and functions that have been given to it through legal reforms. In any case, it is not demonstrated in the case file that the 6% allocation is affected by the public resources destined for the Judicial Branch Retirement Fund.

According to the preceding considerations, a qualified majority was not required for its approval, and given that the bill under legislative file No. 19.922 was approved in the First Debate with 31 deputies in favor and 7 against (folio 4173 Volume 17 of the legislative file), while in the Second Debate it was approved with 34 deputies in favor and 9 against (folios 4437, 4608, and 4637 Volume 18 of the legislative file), it is not considered that the alleged defect against the principle of judicial independence occurs.

ARGUMENTS OF UNCONSTITUTIONALITY IN RELATION TO SUBSTANTIVE ASPECTS OF LAW NO. 9544.- XXII.- Drafted by Justice Hernández López. The plaintiffs raise different substantive claims for which they consider Law 9544 to be unconstitutional and, even though the entire law is challenged, the truth of the matter is that the main arguments are directed against Articles 224, 224 bis, 226, 227, 236, 236 bis, 239, Transitory Provision II, and Transitory Provision VI of Law 9544. As has been stated, the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) that was contained in Title IX of the Organic Law of the Judicial Branch was completely reformed by that Law 9544, which contains 4 chapters corresponding to the following topics: Chapter I "Benefits (Prestaciones)"; Chapter II "Transfer of Contributions"; Chapter III "The Fund" and Chapter IV "The Administration". Additionally, it contains a section of 6 Transitory Provisions. To facilitate the analysis of the substantive arguments raised in this action of unconstitutionality, the Chamber will proceed to divide the work according to the chapters of the law, and it will be in each one of them where the issues will be assessed, making the connection with the corresponding articles. However, the Court does consider it essential, prior to that, to make reference to some general concepts that have an impact on the entire subsequent analysis, so it is advisable to have them as the basis and context from which the Chamber starts to make its decision.

A.- GENERAL ELEMENTS RELEVANT TO THE SUBSTANTIVE DECISION IN THIS CASE.

XXIII.- Drafted by Justice Hernández López. On the right to enjoy a retirement (jubilación). This Court has clearly stated that the model of the Social State of Law (Estado social de Derecho) and the concept of social security that our Political Constitution adopts includes—as one of its elements—the right in favor of working people to obtain a retirement after fulfilling certain normatively established conditions. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional regulations, to which are added health insurance, the different types of contributory retirements, as well as non-contributory ones, among others. In this sense, judgment 2018-19030 of November 14, 2018, which served as the basis for resolving several claims in retirement matters, clearly set forth the characteristics that this Chamber has specifically defined for this right:

"IV.- On the right to retirement. Retirement constitutes the economic benefit obtained after working and contributing to a determined regime for a determined period, the purpose of which is to guarantee a dignified life for the person after concluding their stage as a worker. This Court has held repeatedly that the right to a pension must be categorized as a fundamental right, derived from Article 73 of the Political Constitution, and which is acquired from the moment the person fulfills all the requirements established by the corresponding legislation. Likewise, the existence of different regimes has been recognized, such as Collective Capitalization, in which the periodic contributions of the members create a common fund from which the payment of the participants' pensions will be met, or Individual Capitalization, in which the periodic contributions do not come from a group of people but from an individual, who, through their contributions to the fund, aims to guarantee the payment of their pension when they meet the requirements for obtaining it. Finally, there is the pension regime charged to the National Budget, in which the financing of retirements and pensions is charged to the national budget. Now, regarding the general topic of the right to a pension, in judgments number 1147-90 of 16:00 on September 21, 1990, 487-94 of 16:06 on January 25, 1994, and 2010-1625 of 9:30 on January 27, 2010, the Court expressed, in what is relevant, the following:

'III.- In the first place, the Chamber declares that there does exist a constitutional and fundamental right to retirement in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which:

"Article 33 All persons are equal before the law and no discrimination contrary to human dignity may be made" "Article 73 Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of compulsory contributions from the State, employers, and workers, in order to protect the latter against the risks of illness, disability, maternity, old age, death, and other contingencies that the law determines..." This conclusion is confirmed in a series of international human rights principles and norms, which have not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also direct constitutional protection that practically equates them to those expressly enshrined by the Constitution itself, pursuant to Article 48 thereof (reformed by Law No. 7128 of August 18, 1989); among these rights, specifically, those recognized in Articles 25, 28, 29, and 30—thus corrected the ones invoked in the action—of the Social Security Convention, No. 102 of the ILO, which establish:

"Article 25 Every Member for which this part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following articles of this part" "Article 28 The benefit shall consist of a periodic payment, calculated as follows..." "Article 29 1. The benefit mentioned in Article 28 shall be guaranteed, in the contingency covered, at least:

• a)to persons protected who have fulfilled, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence..." "2. When the provision of the benefit mentioned in paragraph 1 is conditional upon the completion of a minimum period of contribution or employment, a reduced benefit shall be guaranteed at least:" "a) To persons protected who have completed, before the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment..." "Article 30 "The benefits mentioned in Articles 28 and 29 shall be granted throughout the entire contingency" Other international texts also recognize either specifically the right to retirement—by age or old age—(e.g., Art. 16 American Declaration of the Rights and Duties of Man; 22 and 25 Universal Declaration of Human Rights; 31 International American Charter of Social Guarantees; 5 Convention on Equal Treatment in Social Security, No. 118 ILO), or, in general, the Right to Social Security, within which retirement is universally understood to be included (e.g., Art. 11 American Declaration of the Rights and Duties of Man; and Art. 9 International Covenant on Economic, Social and Cultural Rights).

IV.- As can be seen, in both classes of said norms, the fundamental right of every worker to retirement is recognized, and old age is clearly alluded to, in what is of interest, as the "contingency" determining the right to the benefit—retirement—. The objection of the Attorney General's Office is not understood by this, when it states that the provisions of Convention No. 102 ILO only protect "workers who suffer a contingency within their employment relationship, which is not the case of the petitioner..." (f. 62 fte.); thus giving, it seems, an incomprehensible sense of abnormality to the expression, certainly without any explanation.' (...)

"II. This Chamber has already addressed the matter raised on other occasions (constitutional and fundamental right to retirement and pension in favor of every worker), there being sufficient elements and jurisprudence that authorize its hearing in accordance with the second paragraph of Article 9 of the Law of Constitutional Jurisdiction.

III.By resolutions number 6124-93, of fourteen hours thirty minutes, and 6125-93, of fourteen hours thirty-three minutes, both of November twenty-third of the current year, two actions of unconstitutionality were heard whose claims were the same as those invoked by the plaintiffs herein. In resolution number 1147-90, of sixteen hours on September twenty-first, nineteen hundred ninety, the Chamber considered that the pension or retirement constitutes a fundamental right with constitutional and international recognition that:

"belongs to and must be recognized for every human being under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution." Thus, it is recognized in Articles 25, 28, 29, and 30 of the Social Security Convention, Number 102 of the I.L.O., 16 of the American Declaration of the Rights and Duties of Man, 22 and 25 of the Universal Declaration of Human Rights, 31 of the International American Charter of Social Guarantees, 5 of the Convention on Equal Treatment in Social Security, Number 118 of the I.L.O., 9 of the International Covenant on Economic, Social and Cultural Rights, an international sphere that, in accordance with Article 7 of the Constitution, is integrated into our legal system.

IV.Membership in a specific pension or retirement regime is acquired from the moment contributions begin to be made to said regime, but not the concrete right to retirement, which is acquired when the interested party fulfills all the requirements established by law, (...)"

(...).

" IV. The right to retirement and the Social State of Law (Estado Social de Derecho). Articles 50, 56, and 74 of the Political Constitution configure 'the model of a social and democratic State of Law' (Res. 9255 of 16:03 on August 25, 2004). As part of this same model, the principle of social solidarity acts as a guiding axis of the State's internal policy, because the Social State of Law 'entails an orientation of our political regime toward social solidarity, that is, toward equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination' (Res. 13205 of 15:13 on September 27, 2005). Consequently, and based on the Social State of Law, 'our Political Constitution contemplates a set of benefit-conferring rights relating to the protection of... workers' (ibid), as is the case with the right to retirement. (...)". (Judgment 2018-19030 of November 14, 2020) XXIV.- Drafted by Justice Hernández López. The limitations and regulation of the scope of the right to a retirement recognized in favor of working people. On the subject of the right to retirement, this Court has also emphasized the power of the State to regulate, order, and limit the scope of the cited right. In the same judgment 2018-19030, recently cited, it was stated:

"V.- The right to a pension is not an absolute right. Like any other fundamental right, the right to a pension is not unrestricted, as it can be subjected to certain limitations, provided that these are established through a formal law, are reasonable, and do not impede its exercise. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to a pension when it can be proven that certain situations exist, such as inequalities or privileges, that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such. On this matter, in vote number 2379-96 of 11:06 on May 17, 1996, the following was established:

II.- ON THE RIGHT TO RETIREMENT.- In repeated rulings, a pension or retirement has been recognized as a fundamental right in favor of the worker. See, for all, the pronouncement of this Chamber number 1147-90 of sixteen hours on September twenty-first, nineteen hundred ninety, in which it was established:

"In the first place, this Chamber declares that there does exist a constitutional and fundamental right to retirement in favor of every worker, in general; a right that, as such, belongs to and must be recognized for every human being under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Political Constitution..." However, in the same pronouncement cited, it was established that said right is not absolute and may be subject to conditions and limitations:

"In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for by the norms that recognize and guarantee them and are, in addition, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which can be called proportionality and which is generally included as a sine qua non condition of the limitations and restrictions to such rights authorized exceptionally by the very texts that enshrine them." From the foregoing, it is clear that within the entire universe of limitations, conditions, and restrictions that the fundamental right to retirement may suffer, there will be a group of them from which it can be predicated that they are constitutionally valid provided that they meet two conditions, namely: a) that they come from the texts that recognize said rights and guarantees, and b) that they are necessary for the very exercise of the right in accordance with its nature and purpose. It is also correct to conclude that—by imperative of the structural logic of our legal system—the first of the conditions just mentioned can be expanded to include limitations and conditions that come from texts of a higher hierarchy or even of the same rank, as occurs in this case with the limitations that may arise from the Political Constitution itself, understood not only as a grouping of norms but as a set of integrated regulations and principles aspiring to harmony (...)".

Such concepts were endorsed by a majority of the Chamber when the legislative consultation regarding the bill of law that ultimately became the Law 9544 discussed here was discharged. In that pronouncement (judgment 2018-005758), it was reaffirmed:

"(...) It should be noted that the right to retirement is not unrestricted, as it can be subjected to certain limitations, provided that these are established through a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement when it can be proven that certain situations exist that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such."

And later, it concluded that:

"Now, from the foregoing, it is clearly inferred that the right to retirement can be subjected to limitations, just like any other fundamental right. The above entails that there is no right of the person to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, for if this were not the case, conditions could be created that make the system financially unsustainable, which would finally lead to the right to retirement being severely affected, or to its exercise not being entirely possible given the lack of funds that prevent the payment to the interested party of the amount of their retirement (...)" From what has been said, it is concluded that the thesis that the State, through its competent authorities, may adjust the specific conditions of exercise of the right to retirement enjoyed by workers is settled in the jurisprudence of this Chamber, not only through the establishment of requirements to be met for its effective enjoyment but through the precise modification of the characteristics of that enjoyment, in order to balance the sustainability of said regime and respecting the requirement that the changes "be established through a formal law, be reasonable, and not affect its essential content." (see judgment 2018-5758 recently cited). Thus, in the remainder of this judgment, we proceed to review the changes made to the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) through formal law number 9544 issued by the Legislative Assembly, to determine whether the state authorities have exceeded such parameters, all according to the topics and the specific argumentation offered by the various plaintiffs.

B. CLAIMS RELATING TO CHAPTER I, TITLED "BENEFITS (PRESTACIONES)," OF TITLE IX "JUDICIAL BRANCH RETIREMENT AND PENSION REGIME (RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL)" OF THE ORGANIC LAW OF THE JUDICIAL BRANCH XXV.- Drafted by Justice Hernández López.

Regarding the reasonableness and proportionality of the eligibility requirements and the benefits established in Chapter I “Benefits,” as amended by Law Number 9544.— To explain their allegation of the supposed violation of the principles of reasonableness and proportionality occurring with the enactment of the challenged Law Number 9544, some of the petitioners point out that the eligibility conditions and retirement benefits do not heed the technical studies that were contributed to the legislative file, while another group of them acknowledges that the Legislature relied on technical studies, but disregarded more suitable options, thereby affecting the reasonableness of its decision.

In this regard, we have that the “benefits” chapter of Law 9544 incorporates the modification of the requirements under which judicial servants can obtain the right to retirement and the financial amount thereof, as provided by Article 224 of that legal text:

“Article 224- Judicial servants with twenty or more years of service in the Judicial Branch may qualify for an ordinary retirement pension equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned during their working life, updated according to the consumer price index (CPI), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked for at least thirty-five years.” For its part, Article 224 bis regulates the conditions for obtaining an early retirement, in the following terms:

“Article 224 bis- Servants with twenty or more years of service in the Judicial Branch may qualify for an early retirement if the age or number of years of service cited in the preceding article is not met. This shall be calculated as follows:

• a)If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement pension shall be calculated in proportion to the servant's age:
• 1)Women must have reached at least sixty years of age and men at least sixty-two years of age.
• 2)The calculation shall be made by multiplying the pension obtained according to the provisions of Article 224 for the calculation of the ordinary retirement pension, by the servant's age, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement pension.
• b)If retirement occurs when the servant reaches sixty-five or more years of age, but before completing thirty-five years of service, the retirement pension shall be granted in proportion to the years worked, provided the number of years served is not less than twenty. To set it, the amount of the ordinary retirement pension indicated in Article 224 shall be multiplied by the number of years served and the product shall be divided by thirty-five; the result shall be the amount of the early retirement pension.” The contrast between the current law and the former one, in the matters addressed by the articles cited above, yields the following:
• a)Regarding age, with the new (challenged) text, the age for ordinary retirement is, at a minimum, 65 years. The text of the repealed rule required a minimum of 62 years of age, (repealed Article 224) which shows an increase of 3 years in the minimum retirement age.
• b)Regarding the number of years of service, the new (challenged) text provides the obligation to have at least 35 years of service. In contrast, the repealed rule required having worked at least 30 years in the “public administration” (repealed Article 224). The general requirement for years of service was increased by 5 years, as can be seen.
• c)To this, it must be added that it is now required to demonstrate 20 or more years of service worked within the Judicial Branch. In the former text, it was required to have worked for the Judicial Branch for the last 10 years before retirement (repealed Article 231).
• d)Regarding the amount of the retirement benefit. In the new (challenged) rule, the gross amount of the ordinary retirement pension is defined as eighty-two percent (82%) of the average salary of the last 20 years of ordinary monthly salaries earned during their working life. In contrast, in the former legal text, the gross amount of the ordinary retirement pension was defined as one hundred percent (100%) of the average of the last 24 best ordinary monthly salaries earned in the service of the Judicial Branch.

On the other hand, regarding early retirement, the changes are summarized as follows:

• a)Regarding retirement by length of service: the (challenged) text allows obtaining early retirement without having the required age (65 years) provided the required years of service (35 years) have been completed. That said, a minimum age is set for this type of retirement by years of service, which differs according to sex, and will be 62 years for men and 60 years for women. In the prior legislation, the possibility of early retirement upon completing the required years of service (30 years) also existed, without requiring a minimum age, and without making a distinction between men and women. (repealed Article 225) b) Regarding retirement upon reaching the age. The current (challenged) text also allows early retirement by age, that is, without having the required length of service (35 years) but provided the age established for ordinary retirement (65 years) has been met and -in addition- there is a minimum length of service of twenty years worked within the Judicial Branch. The prior legislation also contemplated this possibility of retirement by age, for which the condition of being at least 60 years of age and having at least ten years of service had to be met (repealed Art. 225) c) Regarding the amount of the early retirement benefit. For both cases of early retirement (by years of service or by age), the method of calculating the reference amount is linked to the new method of calculating the gross retirement amount set forth in Article 224 of the challenged law.

In the third place, it is observed that the pensions of those who become permanently disabled have not been affected in their particular structure, but rather the disagreement is linked to the variation suffered by the challenged Article 224, which establishes the mechanism for determining the gross amount of the ordinary pension, on which -in turn- the pension that may correspond to persons affected by this contingency will depend.

The petitioners warn that it is precisely with this reformulation of requirements and benefits established in the challenged Articles 224 and 224 bis that the fundamental problems, in their view, contained in Law 9544 begin, because the retirement age and the number of years the official must work are increased, while the sum they will receive as a retirement pension relative to the salary they were earning upon retiring is reduced, to which is added the application of all legally established deductions, which generates that the amount to be received is in many cases less than 55 percent of the last salary received, which is clearly ruinous. Thus, they indicate an injury to the principles of reasonableness and proportionality since -for some of them- the Legislative Assembly departed from the technical criteria and chose to adopt a system lacking foundation or support, while another group affirms that, although technical criteria were heeded, less harmful, more reasonable, and proportionate options that were raised during the course of the legislative process were set aside.

XXVI.- Justice Hernández López continues drafting. The respondents called to this proceeding indicated the following regarding the injury to the proportionality and reasonableness of the new design. The Office of the Attorney General of the Republic states in its report that the need to make the disputed changes in the Judicial Branch pension regime derives directly from the actuarial studies on which said reform was based. In other words, increasing the retirement age and the number of contribution years and reducing the economic benefits for retirees was not a decision adopted at the whim of the legislator, but rather is the result of the regime's situation, which was reflected in the aforementioned actuarial studies, concluding that the changes made have the necessary technical support to affirm their conformity with Constitutional Law. It points out that the issue was already the subject of specific analysis by this Chamber in the legislative consultation of constitutionality that gave rise to decision number 2018-5758, extensively mentioned. It finally explains on this point that the new text of Article 236 of the LOPJ expressly provides that deductions may not exceed 55 percent of the gross amount of the established retirement pension; all this, added to the existence of technical studies on which action was taken, means that the modifications do not violate the principles of reasonableness and proportionality.

In the report rendered by the President of the Legislative Assembly, it was indicated: “It must be understood then, that the law under analysis does not respond to arbitrary or capricious criteria -a situation already analyzed by the Honorable Constitutional Chamber-, and therefore it does not imply any violation of the constitutional principles of reasonableness and proportionality,” referring to the fact that the Special Commission that issued the opinion on the bill took the referenced technical study into account, as well as that it had the participation of the Technical Committee created by the Judicial Branch, and also referring to the fact that in decision number 2018-005758 of 15 hours 40 minutes on April 12, 2018, the Chamber had indicated that such technical studies were available.

The Vice President of the Supreme Court of Justice, in her report, indicates that in relation to the percentage established in Article 224 of Law Number 9544, it is necessary to take into account that judicial servants, at the moment of qualifying for their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund with a worker contribution of 13% according to Article 236 of that same regulatory body, unlike other retirement and pension regimes; therefore, the amount of their retirement pension would be diminished and, in addition, other deductions must be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial servants, as well as from the retirement pensions and pensions covered by the fund, which could be seen as confiscatory (Article 40 of the Constitution) or a violation of the principle of non-retroactivity of the law (Article 34 of the Political Constitution) since there exist acquired and consolidated patrimonial rights under a previous law. The Vice President of the Judicial Branch also mentions that according to the report approved by the Full Court in session number 26-17 of August 7, 2017, article XXX,

“(...) this Court has been and shall be respectful of the technical studies issued to procure the sustainability of the Fund; however, it cannot be overlooked that we are in the presence of fundamental rights, and it is for this reason that the reform also merits a study adhering to actuarial technique but also with a human rights perspective.

In that sense, it is worth highlighting that ILO Recommendation No. 43, ‘Recommendation concerning Invalidity, Old-Age and Survivors' Insurance,’ in point 13), subsections a) and b), states that:

"(a) To guarantee workers a life in old age free from want, the pension should cover their essential needs. It is appropriate, therefore, that the pension guaranteed to any pensioner who has completed a determined qualifying period be fixed with due regard to the cost of living.

(b) In schemes with contributions proportional to wages, insured persons who have had paid into their account the contributions corresponding to the average duration of active working life should obtain a pension corresponding to their social situation during the professional activity period. For this purpose, the pension guaranteed to insured persons who have credited thirty effective years of contribution should not be less than half of the insured salary from entry into the insurance or during a determined period immediately preceding the settlement of the pension (Our emphasis).

It is clear then that both ILO Convention No. 102 and ILO Recommendation No. 43 concur in establishing that retirement and pension must satisfy the essential needs of persons in their old age, so the amount must be set taking into account the ‘cost of living and social situation during the professional activity period.’ That is to say, the standard of living that the worker had during their active professional life must be respected.

The need to make reforms to the Retirement and Pension Fund in order to procure sustainability is not unknown, but these must be vested with suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the pension cap established in Article 234 of the Organic Law of the Judicial Branch. The foregoing is in agreement with what was stated by the Inter-American Commission on Human Rights when, in analyzing the admissibility of the case ‘Admissibility and Merits, National Association of Former Servants of the Peruvian Social Security Institute et al. v. Peru’ (1), it outlined that the mentioned Article 26 does not exclude the possibility that a State may impose certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual impact on the right (in this case, to retirement and pension) in relation to the collective implications of the measure.” XXVII.- Justice Araya García drafts. This Tribunal considers that, as the Attorney General's Office and the Presidency of the Legislative Assembly point out, both the issue of the absence of technical criteria to support the decisions of the reform implemented in the Judicial Branch Retirement and Pension Regime, and the fact that a more favorable option for the fund participants regarding eligibility requirements and the method of calculating retirement benefits was passed over, were already addressed when this Tribunal had the opportunity to analyze the legislative texts with the wording that finally became the law of the republic. In decision 2018-5758, which answered the cited constitutional consultation, it was stated on that aspect:

“ XIX.- Regarding the lack of studies to set the pension calculation. The consultants consider that Article 224 of the bill is contrary to numeral 73 of the Political Constitution. They argue that the questioned article provides that the pension calculation shall be obtained from the average of the salaries of the last 20 years earned by the worker, without having technical studies regarding what the real impact on the fund's reserves will be. They add that the study that served as a basis was the one issued by the University of Costa Rica, but in it, the last 120 salaries (10 years) were set as the limit for the pension calculation, so they consider that the Special Commission exceeded itself in its appreciations, given that, without technical foundation, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. Likewise, they consider it illegitimate that the annual percentage of the Fund's investment returns is taken as absolute at 3%, without considering that the real returns were higher. Concerning the first of the arguments, the Chamber considers, after analyzing the record, that the alleged defect is dismissed, because on folio 2942 of the legislative file, official letter number IICE-186-2017 of August 18, 2017, is recorded, in which the director of the Institute of Economic Sciences Research of the University of Costa Rica endorses the parameter established by Article 224 of the bill, stating the following on this matter:

“a. Reference salary for calculating the retirement or pension amount In the Article 224 to be reformed, the Majority Opinion calculates the reference salary (SR) as the average of the last 20 years (SR20), updated with the consumer price index calculated by INEC, while the IICE_3 and IICE_4 frameworks calculate it as the average of the last 10 years (SR10), adjusted by the same index. It was estimated that the average salary of the last 20 years, adjusted for inflation, is 4.8% lower than the average salary of the last 10 years for new pensioners, given the merit scale in force in the Judicial Branch. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulation, acts in favor of the actuarial solvency of the retirement and pension fund, an aspect we will refer to in the following subsection.

b. Worker contribution and member benefit (…)

Now then, the Majority Opinion proposes a benefit of 85% of a reference salary of 240 months (instead of 120 months), with a worker contribution that, as commented, consists of a differentiated scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale were already noted, which, being left to the discretion of the Administrative Board of the Judicial Branch itself, also runs the risk of being set, in practice, closer to 11% than to 15% which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between this contribution and the benefit that fund members receive. In this case, the team considers that a single contribution of 13% (applied to active workers, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority Opinion sets the employer contribution at 14.36% (Article 236, subsection 2), unlinking it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by IICE.” In that sense, upon verifying that, contrary to what is stated in the initial brief, there is indeed a technical criterion that endorses the parameter set by the bill regarding the reference salary for the pension calculation, the Tribunal dismisses the existence of the alleged defect.

On the other hand, regarding the second of the arguments of the consultants, the Chamber considers that, at heart, what is questioned is whether the parameters that served as the basis for setting the requirements to obtain the pension right were suitable or not, a point which does not imply that the norm is unconstitutional, as the consultants consider, hence the defect is deemed non-existent.” In a similar manner, it had been stated earlier in the same decision:

“XV.- Regarding the alleged violation of the principle of judicial independence. (…) The Chamber considers that the foregoing complies with what is established by international doctrine, to the effect that it is the public authorities who bear the burden of proving that cuts are justified in light of the set of socioeconomic rights, and that if an administration needs to adopt regressive measures for the right to pension and retirement, it must have a technical study regarding the effects these may have on the rights of the affected persons and the regime, as well as that no less burdensome measures could have been taken, a situation that is met in this case, taking into account the analyses performed by the University of Costa Rica in the actuarial studies of the Judicial Branch Retirement and Pension Fund. (…) Thus, in light of the foregoing, the Chamber does not consider the alleged defect to be present.” And it added a little further on:

“XVII.- Regarding the changes in the requirements to obtain the pension right. The consultants consider that Article 224 of the bill harms the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension relative to the salary they were earning is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of fulfilling the requirements to acquire the pension right may do so under the provisions of Law No. 7333. The questioned norms provide the following: (…) It is worth noting that the right to retirement is not unrestricted, as it may be subjected to certain limitations, provided these are established by formal law, are reasonable, and do not affect its essential content. Thus, this Chamber has held that the legislator has the power to establish restrictions on the right to retirement when it can be proven that certain situations exist that jeopardize the sustainability of a regime and, therefore, threaten the nature of the system itself. On this matter, in vote number 2379-96 of 11:06 a.m. on May 17, 1996, the following was established:

(…)

Now then, from the foregoing, it is clearly deduced that the right to retirement, like any other fundamental right, may be subjected to limitations. The foregoing entails that a person does not have a right to retire under specific conditions, as these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, because if this were not so, conditions could be created that would make the system financially unsustainable, which would finally lead to the right to retirement being severely affected, or its exercise being not entirely possible, given the inexistence of funds to prevent the payment to the interested party of the amount of their retirement pension. Given this panorama, the Chamber considers that the questioned norms are not unconstitutional, insofar as their purpose is precisely to guarantee the permanence of the Judicial Branch Retirement and Pension Regime, for which parameters and requirements were set based on the opinion of experts who were received by the Special Commission that issued the opinion on legislative file number 19,922, as well as technical studies that verified the existence of a problem that could affect the sustainability of the mentioned Regime, and for which they issued a series of recommendations. In that sense, upon confirming that the variation of requirements provided by numeral 224 and the term set by Transitory Provision VI of the bill have the ultimate purpose of guaranteeing the retirement right of judicial servants, the Chamber dismisses the alleged defect.” (decision 2018-5758).

In view of the foregoing and given the lack of novel evidentiary elements provided by the petitioners on these aspects, the Tribunal holds it as proven -in the first place- that the unsustainability of the Judicial Branch Retirement and Pension Fund was a real fact at the time when both the Supreme Court of Justice and the Legislative Assembly decided to initiate a process of reforming the institution's retirement regime, supported by a technical assessment that operated as a technical input to attack the financial problems that threatened the Fund. In the second place, the Chamber reaffirms what was stated in decision 2018-5758, in relation to the validity and constitutional pertinence of the changes made in the eligibility conditions, as well as in the determination of the benefits covered by the Fund, on the understanding that such adjustments fall within the legitimate constitutional framework of the legislator's action in retirement matters as was explained in said text. In the third place, it is also reaffirmed what was stated in decision 2018-5758 regarding the existence of adequate technical support that underpins the text that finally became the law of the republic, insofar as the final parameters established were indeed technically endorsed as was explained in detail in the recently cited decision 2018-5758.

XXVIII.- Justice Araya García continues drafting. Notwithstanding the foregoing, the petitioners reiterate the lack of constitutional reasonableness and proportionality of the decision taken and specifically maintain that the technical report offered the legislators options more favorable to the economic interests of the fund participants that left the purpose of the legislation intact, but despite this, such option was not enacted into law, thereby violating the condition of suitability that forms part of the constitutionality reasonableness parameter. On this matter, the Chamber observes that the Judicial Branch formalized Agreement R-CONV-005-2016 with the Institute of Economic Sciences Research (IICE) of the University of Costa Rica, so that it would conduct an actuarial study to determine the solvency of the Judicial Branch Retirement and Pension Fund. Regarding what is of interest, clear and compelling evidence emerged from this study regarding the unsustainability of the current configuration of said fund, and for that reason, four proposals for new “normative frameworks” were offered (IICE frameworks 1, 2, 3, and 4) as a technical exercise to assess different possibilities for rearranging the variables incident to the operation of the pension regime in question. Of these, according to the technical study itself, numbers 1 and 2 do not possess solvency and sustainability characteristics and were included to show how the different values of the variables affected the final result. For that reason, and as the petitioners point out, the technical report recommended two possible technically viable combinations to the Assembly: IICE framework 3 and IICE framework 4, for the modification of the regime; however, this Chamber does not share the interested parties' conclusion that the foregoing implied for the legislator an exclusive choice between those two alternatives: first, because neither of them aspired to be “the best possible option” but rather were only presented as viable options for the modification; second, because it was clear that they did not exhaust the technically valid and acceptable possibilities for combining eligibility and benefit variables (as finally occurred, as will be discussed); and third, because the choice of either of the two options (IICE 3 OR IICE 4) or the construction of a different one necessarily imposed upon the legislators a trade-off and balance among the distinct variables related to contributions, eligibility conditions, and benefits to be received. Thus, for example, on the same shared basis of general eligibility requirements (65 years of age and 35 years of service); method of calculating the reference salary (average of the last 10 years worked); existence of a maximum retirement payment cap of 10 times the base salary of the Judicial Branch, and a solidarity contribution for those receiving high retirement pensions, IICE framework 3 proposed, for an ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a worker contribution (contributions from active workers and retirees) that was lower (on the order of 11%), while IICE4 proposed providing a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution (on the order of 15%). Faced with this state of affairs, the option adopted by the Legislative Assembly is not arbitrary, as it consisted of constructing -with the contributed technical elements- an intermediate proposal between the originally recommended IICE3 and IICE4 frameworks. That is to say, on the same common basis of requirements from the cited frameworks, concerning age and service conditions; the retirement amount cap; and the establishment of a solidarity contribution for retirement pensions above this latter, the Assembly defined, for the ordinary old-age retirement, a retirement payment of 82% of the reference salary (9 and a half percentage points higher than the 72.5% proposed in IICE framework 3, but 3 percentage points lower than the 85% set in IICE framework 4). Similarly, the worker contribution percentage was set at 13% (that is, 2 percentage points more than the 11% of IICE framework 3, but 2 percentage points less than the 15% established in IICE4). It is worth indicating that similar considerations can be made in relation to the cases of early pensions and disability pensions.

However—and this is where the arguments of several of the appellants appear to focus—the Legislative Assembly changed the formula for calculating the reference salary (salario de referencia), setting it at the average of the last 240 salaries (20 years worked) as opposed to the average of the last 120 salaries (10 years) used in the IICE3 and IICE4 frameworks; according to the technical authority itself, this change implied a 4.8% decrease in the average salary that would serve as a reference for determining the retirement payment.

With this picture, it must then be determined whether this set of actions by the Assembly falls within the realm of unreasonableness for being unsuitable, and the majority of the Court concludes that the alleged defect does not exist, because it was precisely an intermediate choice between the two recommended frameworks, a choice for which it has not been proven that it entailed a substantial and relevant worsening of the conditions for fund participants, compared to those offered in the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this case file precise and reliable data to affirm that—with all conditions weighed—a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, while simultaneously offering clearly and overwhelmingly higher levels of protection for the fundamental rights at stake. To this must be added the fact that, precisely, the legislator's task consists of weighing the different interests and needs at play and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in its judgment, best suits the pursued state purpose. That is its role as representatives of the people, and this Chamber must not substitute that competence or the power to develop, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). Finally, it bears repeating that the normative proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which noted the technical propriety of that finally adopted design through report IICE-186-2017, found at folios 2942 and following of the legislative record, as explained in judgment 18-5758 of this Chamber, cited supra.

As indicated in Considerando VI of this judgment, the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE), in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. It particularly notes, regarding the project endorsed by the majority, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution of 50%, the worker contribution with a differentiated scale, and the early retirement age with differences by gender, act in favor of the fund's actuarial solvency. Whereas, in the case of the minority opinion (folios 2945 and following, same volume), which was in favor of:

Using a lower reference salary (salario de referencia), calculated on the average of the last 10 years adjusted for the CPI. On this point, it is indicated that this calculation method is less favorable for the fund's actuarial solvency, and its effect must be analyzed in conjunction with other characteristics and parameters such as the age for ordinary or service-based retirement, worker contribution, solidarity contribution, and transitional provision. 85% of the reference salary (salario de referencia) with a worker contribution of 11%. In this regard, it notes that the 11% worker contribution should be associated with a retirement or pension not exceeding 72.5% of the reference salary (salario de referencia) calculated with the last 120 salaries adjusted for the CPI, in order to maintain actuarial solvency. An age of 62 for men and 60 for women is proposed, and no minimum age is established for early or service-based retirement. In this regard, it is noted that, in this scenario, even with a contribution of 15% on salaries, retirements, and pensions, the fund is insolvent if a benefit of 85% of the reference salary (salario de referencia) is maintained. It adds that "the analyses conducted by the IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous test of actuarial solvency." In particular, it notes:

" i. If the worker contribution remains at 11% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 3 million million colones, and the actuarial insolvency would be greater than 30% of the promises.

ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 1.7 million million colones, while the actuarial insolvency would be greater than 17% of the promises.

Solidarity contribution of 20% of the excess over the maximum cap defined for retirements and pensions, set at 10 base salaries. This percentage may be increased to 50% "if so recommended by an actuarial study and approved by the Fund's Administrative Board (Junta Administrativa del Fondo)." Regarding this proposal, the IICE notes that by reducing the contribution to 20%, part of the equalizing effect of said contribution is lost. Transitional Provision V. The Transitional Provision V proposed by the Minority Opinion extends the benefits of the current law for 10 additional years beyond the 18 months recognized as an acquired right; although the benefit is established as 100% of the reference salary (salario de referencia) of 120 salaries adjusted for the CPI, the transitional provision does not contemplate gradualism, such that its effect on solvency approximates that of the transitional provision of the Full Court project, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less gradualism, it is less favorable relative to Transitional Provision IV of the Majority Opinion regarding its impact on the fund's actuarial solvency. Employer contribution. It is proposed that the employer contribution of the Judicial Branch (currently 14.36% of the wages and salaries of the affiliates) "shall be adjusted proportionally according to the increases that the Administrative Board agrees upon as the contribution of judicial employees…." "The IICE team finds the preceding clause entirely inadvisable." "The position is that the guarantee of solvency should not rest on the state contribution and thereby prevent further deterioration of the country's already delicate fiscal situation." Credit operations: It was proposed to authorize the Administrative Board to conduct credit operations with the Fund's income directly or through a financial institution. On this topic, the IICE team stated: "…the eventual participation of the fund in credit operations must be analyzed with extreme care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which imply expenses and also risks that must be adequately assessed." After these observations and the legislative discussion, modifications were made to the bill, in most cases, to adapt them to the criteria issued by the IICE, and in others to incorporate positions raised during the legislative discussion.

The claimants argue that regressive measures cannot exist in economic, social, and cultural rights, among which pension systems would be included. However, as the Committee on Social Rights of the Council of Europe and other Constitutional Courts, such as the Colombian one, have pointed out, it is possible to adopt regressive measures in the realm of Economic, Social, and Cultural Rights (DESC), when they pursue a legitimate and relevant purpose, such as the improvement of another right or the general level of coverage of services that guarantee their effectiveness, or serve to avoid more burdensome measures and are technically supported. Thus, the constitutional conformity of measures that cut or modify conditions regarding pensions requires that, prior to the determination and as an inescapable part of its justification, there must be technical support regarding the effects of the measures, and the affected parties must have been heard because it concerns the income they receive on an ongoing basis, as a means of subsistence and upon which a large part of their life project and their right to a dignified old age is based.

According to Inter-American doctrine and jurisprudence, in cases of regressivity of DESC, it is necessary to verify the legitimacy of the purpose that the norm seeks to achieve, whether the restriction of rights is "suitable" or "adequate," successively whether it is "necessary" or "indispensable," and, finally, whether it is "proportionate" in the strict sense or "balanced." The purpose that the norm seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important purpose. The norm in question "(…) cannot have just any purpose, but must be oriented toward protecting values that have express constitutional support, either because the Charter considers them objective values of the legal order (…). This means that these measures must not only be admissible but must seek the realization of constitutionally important objectives." Likewise, it must be verified whether the means provided in the norm to achieve the pursued purpose are adequate or not to effectively achieve that purpose, or, in other words, "(…) the protective effect of the measure in relation to the interest or value one wishes to favor must be clearly demonstrated." There must be no other means to achieve the pursued purpose with the same efficacy that are less onerous in terms of sacrificing the constitutional rights susceptible to limitation in each case, or, in other words, "(…) that there is no other means that can lead to the end and that sacrifices to a lesser extent the constitutional principles affected by the use of those means." What is sought in this step is to verify that the reduction or deterioration in the legal patrimony of persons, that is, the affectation of constitutional principles and rights, is not greater than the benefit that said affectation is capable of generating. In the words of the Inter-American Court, it must be verified whether "(…) the restriction of the affected rights is equivalent to the benefits that the provision generates.

If the harm produced on the legal patrimony of citizens is greater than the constitutional benefit that the norm is capable of achieving, then it is disproportionate (…)".

The Inter-American Court has also held that in economic matters, and more specifically regarding budgetary issues and resource appropriation, the legislator has broad freedom of configuration, which is why, in these cases, any proportionality judgments made must have a light intensity, which is precisely the category of rights under analysis.

As proven from the legislative record, the Judicial Branch pension system had an actuarial deficit of more than 5 thousand million million at the time of the legislative discussion, which endangered the patrimony of all the collective and passive affiliates that make up the pension regime for Employees and Officials of the Judicial Branch (Régimen Previsional de los Empleados y Funcionarios del Poder Judicial) and the public finances, since the State would have to assume that deficit in its budget at a precarious time for public finances. That is, there was not only a legitimate need to intervene, but also a legal obligation to protect the balance of the fund, upon which thousands of people and families depend, as well as the adequate safeguarding of public finances.

By way of example, what was stated by Dr. Max Soto Jiménez of the Institute for Economic Research of the University of Costa Rica (folio 1321) and part of his team, who advanced to the Commission that among the findings, the Institute for Research in Economic Sciences of the University of Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of the accumulated reserves and is 36% of the present value of the regime's total liability, and that the substitute text being discussed in the Commission is insufficient to guarantee the sustainability of the Judicial Branch pension regime. (see folio 1352, volume 7, legislative record) Likewise (folios 2274 and 2275, volume 10), the intervention of Dr. José Antonio Cordero Peña of the IICE is recorded, in the same sense regarding the seriousness of the fund's situation and the need to take measures:

"In reality, it is evident that the fund, at this moment, is insolvent… If we continue as things are at this moment, what is going to happen is that the people who retire in the coming years; will consume the fund's resources of future generations and, see how curious, as we are all so long-lived, they will also consume the funds of those who will finance them when they are ninety years old, when they are ninety, ninety-five years old, someone will have to come and tell them, look, you know what, your pension will no longer be feasible, similar to what happened to some affiliates of private pension funds in Chile." That situation was recognized not only by the actuarial report of the University of Costa Rica, but years before by the cited Melinsky report, and by the Judicial Branch authorities themselves during the hearings, as well as the Judicial Branch unions themselves that participated during the legislative process and also formed part of the Judicial Branch technical teams that participated in the preparation of the 6 products of the IICE and endorsed the studies' recommendations, now challenged in this action.

Indeed, as indicated in Considerando VI of this judgment, in Agreement R-CONV-005-2016 signed between the Judicial Branch and the University of Costa Rica, it is recorded that the unions or trade unions of the Judicial Branch would have a representative on the Executive Team (folio 689 and 1154). In a hearing before the Commission, Mr. Hernández Solano stated:

"For the first time in an actuarial study, representation is given to the workers, on this occasion with the UCR study, for the first time.

There is a technical committee within the Judicial Branch and a technical committee within the UCR; they are the ones who analyze all the parts of the five phases that the UCR-Judicial Branch agreement has. The Executive Committee within the Judicial Branch is the one that endorses each phase, tests it, makes queries with the Technical Committee, and at the end of the day we give the approval." (emphasis not in original) "On behalf of the institution, there is an executive team… The Head of the Financial Accounting Department of the unions is part of this technical team. Why does the institution make that decision? Well, because experience had shown us that in previous processes, the unions' questioning of the study would come at the end of the study, and then we would enter into unhealthy internal conflict. In this way, we considered it important to incorporate the union representative as part of this executive team, and they participate actively and review the products, as part of the rest of the team as constituted." (folio 1325, volume 6 of the legislative record) There, the conditions of each product were agreed upon, and the agreement was communicated to the Special Legislative Commission tasked with hearing and issuing an opinion on the bill "Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222" (folio 775, folio 4, legislative record) "In the process, observations were made; I even want to tell you that the Judicial Audit also participated in this review process, and there were observations by Mr. Arnoldo, at the time a union representative, by the Audit; they were transferred to the IICE, they gave us a response; in some cases, they corrected the products because this process occurs in a preliminary version for discussion or assessment, and then, satisfied with that correction, approval and endorsement were given" (folio 2335, volume 10, legislative record) (emphasis not in original) At folios 843 of the legislative record, the prior actuarial study by Melinsky, Pellegrinelli y Asociados S.A. is provided, which at folio 939 indicates among its recommendations that for the year 2026 a critical year is foreseen with a significant actuarial deficit of 50% of the constitutive capitals of the ongoing benefits. It notes that "substantive and effective measures are required aimed at reducing the actuarial deficit and substantively postponing the critical year." It adds that, in order to take adjustment measures, it must be kept in mind that it is an ongoing pension regime where the following concepts must be reconciled:

Ongoing benefits Time of service rendered by active employees Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, required average equilibrium premium) Legal Contributory capacity of the affiliates Budgetary capacities of the Judicial Branch Budgetary capacities of the Executive Branch It adds: "any legal analysis must take into account that the adjustments indicated are necessary in order to improve the actuarial deficit situation and critical year, which implies an Institutional Risk that endangers the patrimony of all the collective and passive affiliates that compose the pension regime for Employees and Officials of the Judicial Branch." (emphasis not in original) "That is, the basic legal element to take into account is that the individual rights recognized by the current law must be considered rights in expectation, subject to the collective right regarding the feasibility of the benefits to the mass of affiliates, not only regarding its impact within the Judicial Branch sphere but also due to its potential effect on the National Budget." In the hearing of the Executive Director of the Judicial Branch (volume 1322 and following, volume 6 of the legislative record), she notes that since the last actuarial study by Melinsky, the actuarial deficit situation went from 2.48 million million "to a scenario around 5 thousand million million." When asked by Deputy Piszk Feinzilber: "Would I understand correctly, if I interpret that the situation is worse than we had imagined?", the Executive Director's response is: "Yes. Four years have passed from 2012 to date. Decisions have not been made, and the situation has worsened." (folios 1338 and 1339, volume 6 of the legislative record) Deputy Piszk Feinzilber adds:

"What I want is to make it very clear here is that our concern is not based on a whim" … but rather on it being abundantly clear that as long as decisions are not made, the situation will continue to worsen." "I know, and we had even committed ourselves to waiting until there was a complete actuarial study to make decisions of order, I don't know if the correct word is numerical or not numerical, but regarding contributions, but well, I believe it is abundantly clear that there is concern on our part, that the Court must be aware of this, that here, well, it is all Costa Ricans who are going to have to pay, if this thing continues to drag on, and from that point of view, we evidently, as legislators, who have to make a decision…" (folio 1343, same volume) In the same vein, Deputy Guerrero indicated: "To reiterate what Álvaro Ramos said. This is not a topic against the working class, it is in favor of it. That substitute text improves but does not sustain the health of the regime. A regime that will end up in the national budget of the Republic, if one wants health, a regime that, moreover, does not guarantee the pension expectation of the people who are currently contributing or will have to start contributing double; the same as the employer and the same as the State. That is, it goes to the central budget…" (folio 1754, volume 8, legislative record) On the other hand, as indicated supra, the majority of the Chamber considers that, given the proven public necessity and legitimacy of the authorities' intervention, the means provided in the challenged regulations to achieve the pursued purpose are adequate to effectively achieve that purpose. As indicated supra, the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE), in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. As explained, the legislator adopted an intermediate choice between the two recommended frameworks, a choice for which it has not been proven that it entailed a substantial and relevant worsening of the conditions for fund participants, compared to those offered in the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this case file other technical studies or expert reports of the same level or equivalent that, with precise and reliable data, allow affirming that—with all conditions weighed and not just the selected ones—a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, while simultaneously offering clearly and overwhelmingly higher levels of protection for the fundamental rights at stake. Precisely, the legislator's task consists of weighing the different interests and needs at play and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in its judgment, best suits the pursued state purpose. That is its role as representatives of the people, and this Chamber must not substitute that competence or the power to develop, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). As the Inter-American Court has rightly pointed out, in economic and budgetary matters or resource appropriation, the legislator has broad freedom of configuration, which is why in these cases, any proportionality judgments made must have a light intensity, which is precisely the category of rights under analysis, where a balance must be sought between individual and collective rights to overcome the existing danger of affecting the patrimony of all the collective affiliates that compose the pension regime for Employees and Officials of the Judicial Branch, putting at risk the sustainability of current and future beneficiaries and potentially the finances of the State, which would have to assume the present and future pensioners and retirees if the regime could not be balanced.

The claimants provide a series of examples of hypothetical impacts on how disproportionate the measures are for various sectors, but they do not provide an actuarial study that allows refuting the one existing in the legislative record, which does take into account all the variables at play (not just the selected ones), which must be evaluated comprehensively. Likewise, with the actions filed, they seek to return to the scenario before the reform, one technically discarded expressly by the IICE in its various studies and which indeed has the capacity to affect or endanger the sustainability of the Judicial Branch pension regime, as was proven by the Melinsky study and that of the University of Costa Rica. Likewise, the evidence for a better resolution requested by this Chamber from the Administrative Board of the Judicial Branch Pension Fund (Junta Administradora del Fondo de Pensiones del Poder Judicial) (see judicial record), demonstrates that the measures adopted by the legislator have been suitable for restoring solvency to the Fund, which has had a substantial recovery in the years the challenged regulations have been in force.

In conclusion, in the judgment of the majority of this Chamber, the Legislative Assembly did not infringe the constitutional principles of reasonableness and proportionality by taking elements from the IICE3 and IICE4 normative frameworks and from the hearings of the authorities of SUPEN and the Ministry of Finance, and constructing with them a normative framework to adjust all the needs at play and fulfill the purpose of remedying the recognized problems suffered by the Judicial Branch Retirement and Pension Fund and thus avoid more serious harm to the interests of the union members and the public interest, so that on this point the action must be dismissed. Indeed, at the time of issuing this judgment, it has been verified that the regime's actuarial deficit has been significantly reduced, which demonstrates that the measures adopted were necessary, proportionate, and suitable.

XXIX.- Drafted by Judge Hernández López. Regarding the principles of equality and unity of social security and the provisions of Chapter I "Benefits" of Ley 9544. The claimants allege a violation of the principle of equality and the unity of social security in relation to the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) and affirm that, although part of the intention of the reform introduced by Ley 9544 was to make the Judicial Branch Retirement and Pension Regime equal to, or at least as close as possible to, that regime, what was done instead was to considerably distance judicial employees from the system of the Costa Rican Social Security Fund and from any other social security regime existing in the country. They note that with the reform introduced by Ley 9544, Judicial Branch workers are left paying additional amounts in at least 3 items that workers in the country who are affiliated with the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund do not have. This concerns the payment by Judicial Branch retirees of: 1) 5 per 1000 for administration expenses to be paid to the Fund’s Administrative Board (Junta de Administración del Fondo) and that, in principle, would represent approximately 0.41%, borne by active workers as well as by retirees and pensioners; an amount that was not previously paid because the Fund's administration was handled by the Superior Council of the Judicial Branch and the Full Court, as part of legally assigned functions; 2) 13% contribution to the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial), which would mean that active employees, retirees, and pensioners contribute. In this case, the difference in the contribution is much higher for affiliates of the Judicial Branch Regime, despite both categories—Judicial Branch Regime and IVM Regime—having the right to bear the same burdens; 3) 5% contribution for health insurance to be paid by retirees or pensioners, while pensioners under the IVM regime do not contribute for this item.

The interested parties argue that the sum of the 3 previous items would imply that when the 82% is deducted from the gross retirement amount, the latter would finally be a real amount of 66.83%; in contrast, in the case of workers affiliated with the Disability, Old Age, and Death Regime of the CCSS, they allege that although it is true that the basic pension amount ranges between 43% and 52.5% as a gross pension amount, it is also true that this regime has 2 additional incentives added to that basic amount: a) 0.0833% for each additional month contributed beyond the 240th monthly contribution and b) the postponement benefit, which is 2.9326% for women and 2.7993% for men. Thus, they indicate that for workers affiliated with the Disability, Old Age, and Death Regime of the CCSS (RIVM), in the case of a woman who retires at age 65 with 35 years of service in the RIVM, the basic pension amount would range between 60.9266% and 70.4266%, and in the case of a man with those conditions, it would be between 60.7933% and 70.2933%, meaning that, according to their claim, when contrasting these percentages with the basic amount for judicial employees of 66.83%, it is observed that persons affiliated with the Disability, Old Age, and Death Regime would be in a better situation. For this reason, they consider it is more than evident that, in light of these data, far from having equalized both regimes, what was done instead was to place affiliates of the Judicial Branch Regime in a disadvantageous situation compared to those belonging to the CCSS regime and, thereby, they believe the right to equality and the principle of unity of social security are harmed.

XXX. Continues drafted by Judge Hernández López

The intervenors stated the following: The Supreme Court of Justice generally indicated that a respectful request was made to the legislature that special care must be taken with the reductions imposed so that they do not become confiscatory, without losing sight of the fact that an ordinary pension set at 85% —a percentage indicated by the text consulted with the Court at that time— which bears the legal charges of 15% contribution to the Fund —which was the percentage contained in the text consulted at that time—, 5% to the CCSS (Caja Costarricense de Seguro Social) Regime, and 15% for income tax, so it already suffered a 50% reduction —according to those calculations—, which the retired person received when they were actively working, without also taking into account that the calculation was not made at that time based on the current salary but rather on a proration of the last 20 years of work. The Office of the Attorney General of the Republic (Procuraduría General de la República) did not render a specific report regarding this particular point but, in general terms, its representative stated that in accordance with Article 73 of the Political Constitution, the administration and governance of social insurance corresponds to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), which implies, in principle, that it would correspond to that institution (independently of the law and even with prevalence over it), to establish the conditions that should prevail in the different social security regimes, this being the situation that prevails in the general disability, old-age, and death regime, which is administered under the conditions established, by regulatory means, by the Board of Directors of the Costa Rican Social Security Fund. They argue that, despite the foregoing, in Costa Rica various special pension regimes, substituting the general one, have been created through legislation, the existence of which has been repeatedly endorsed by the Constitutional Chamber (Sala Constitucional), citing as an example judgment number 846-92 of 13 hours 30 minutes on March 27, 1992, in which it was held that the existence of special retirement or pension regimes is not contrary to the Constitution, provided that the contribution of the State as such is equal for all regimes, including those of private enterprise, and that the contribution of the State as an employer, in the various regimes, is not higher than that imposed on other employers, including private employers, nor, in any case, lower than that of all servants or workers. Its representative added that the Office of the Attorney General of the Republic has indicated that the Legislative Assembly has not only the possibility, but the duty, to adopt the necessary measures to guarantee the sustainability of the various special pension regimes substituting the general one through the approval of the laws required to achieve that objective, and that, along these lines, the Office of the Attorney General has maintained that the administration of any social security regime requires flexibility to adequately direct the limited resources available and that this flexibility is affected when the legislator —or whoever has the competence to make changes in the rules governing the matter— is inhibited from modifying both the initial conditions and the benefits in course. They argue that, based on the above, it is not possible to admit that the rules that established the conditions of a given regime be petrified, as this could even lead to the collapse of a country's social security system, which would harm not only people who have already attained pensioner status, but also those who have justified expectations of obtaining economic benefits from social security in the future (when some of the protected contingencies arise). For her part, the President of the Legislative Assembly stated that we are in the presence of different regimes, which is legally feasible, it being relevant that within each regime clear rules are observed, adjusted to acceptable constitutional and legal parameters, and, to that extent, there would be no infringement of the principle of unity of social security, which cannot be equated to its homogenization.

XXXI.- Magistrate Hernández López continues drafting. This Chamber recalls that the content of the principle of equality established in Article 33 of the Political Constitution means that it is prohibited to make differences between two or more persons who are in the same legal situation or in identical conditions, without being able to claim equal treatment when the conditions or circumstances are unequal, agreeing in principle to equal treatment for equal situations and enabling different treatment for different situations and personal categories. It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but to determine whether a distinction is truly justified, one must analyze whether the reason producing it is reasonable, that is, whether, taking into account the particular circumstances of the case, different treatment is justified (see in this regard judgment No. 5061-94 of 17 hours 34 minutes on September 6, 1994). Hence, not in all cases must equal treatment be given, disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of objective and reasonable justification, which requires an assessment of its purpose and effects, such that there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. All that has been stated means that equality before the law cannot imply material equality or real and effective economic equality (see judgment No. 1770-94 of 9 hours 18 minutes on April 15, 1994).

Based on the foregoing, in the Chamber's opinion, the appellants are not correct regarding this claim, first because there is no evidentiary evidence that the legislator's intention was directed at homogenizing the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) with the CCSS Disability, Old-Age, and Death Regime, which is totally different in its nature, in the number of contributors, employer contributions, worker beneficiaries, etc., and because —even if that were true— the final result of the legislator is clear as to their will that there be an exclusive regime for Judicial Branch workers, which is consistent with the inclination that emerges from the plaintiffs to keep their regime in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and the IICE's own technical studies, to promote the necessary conditions for the Judicial Branch Retirement and Pension Regime to continue functioning and to be robust and solvent. Now, it is clear to this Court that this decision to maintain a special retirement regime, independent and different from the basic one, entails an associated cost and gives rise to consequences that must be assumed by its members, which by the mere fact of being different do not necessarily imply discrimination, violation of the principle of equality, or the principle of unity of social security. From this perspective, the establishment of different contribution amounts and charges for the regimes, obligations or not to continue contributing after acquiring the right to retirement, and diverse conditions for granting the right to a person, is the result of the need to take into account the particularities and plurality of factors related to working conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits sought upon retirement, or in attention to the social and economic policies that may intervene at a given moment. On this matter, the Chamber considers that, if the primary purpose of the constitution-maker was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of regimes, provided that, as the Office of the Attorney General indicated, criteria of equality regarding state contributions are met. Thus, it is constitutionally acceptable that there is a difference between the pension regime of the Costa Rican Social Security Fund and that of the Judicial Branch, as their enactment responds to different needs and conditions that make their simple comparison inappropriate in terms of reductions, worker contributions, and benefit profiles, without also weighing the differences in the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. It is also worth adding that it is public and notorious, having been publicly reported by the authorities of that institution themselves, that the Costa Rican Social Security Fund's pension regime presents significant threats to its financial stability and that, in response to this, changes in eligibility requirements and the benefit profile are being considered, so that also from this point of view, the comparison proposed by the plaintiffs loses weight and relevance to serve as support for a declaration of unconstitutionality for inequality, as requested. Thus, the Chamber does not consider that Law 9544 has violated the principles of equality and unity of social security in the terms raised in these actions of unconstitutionality. Consequently, the claim must be dismissed.

XXXII.- Magistrate Araya García drafts. Regarding the impact on the fundamental right to retirement derived from the changes in the eligibility conditions in Chapter I "Benefits" of Law 9544 for Judicial Branch workers to retire. At this point, the plaintiffs argue that the fundamental right to retirement is being rendered nugatory by having increased the retirement age, above all by now requiring a minimum of 20 years of service in the Judicial Branch to be able to retire under the Judicial Branch regime, as in many cases judicial servants would be forced to work beyond 65 years of age to be able to qualify for a pension. Additionally, they explain that, with the reform, it is not only that the years of service in the Judicial Branch have been extended by 5 years —from 30 to 35 years— but that particular situations are being generated that they consider harmful to fundamental rights: a) for example, a person who began working in the Judicial Branch at age 20, to be able to retire in accordance with the requirements established in Law 9544, will now have to work 45 years, greatly exceeding the 30 years of contributions indicated by ILO (International Labour Organization) Conventions 102 and 128; b) by now requiring at least 20 years of service in the Judicial Branch but also requiring 35 total years of working in the public sector, any person who begins working in the Judicial Branch after 46 years of age could not receive a pension until after exceeding 65 years; c) in the case of a Judicial Branch worker who dies before completing those 20 years of minimum service in that institution, the beneficiaries could not opt for an orphan's or survivor's pension because that requirement is not met; d) new rules for obtaining a retirement cannot be imposed equally on a person who is 5 or 10 years from retiring, as on a person who is starting work or is 30 years from retiring at the time a reform comes into force; e) the Law prior to 9544 established that upon completing 30 years of service —which implies an amount greater than the 300 quotas required by the IVM (Disability, Old-Age, and Death) regime of the Costa Rican Social Security Fund— the person could request early retirement regardless of age, so they had been working and projecting their life in the near future, but now, by changing the retirement system so drastically, that same person will have to complete 5 more years of service but also reach 65 years of age to obtain a full pension —now greatly reduced— since early retirement seems not to be an option because it considerably reduces income; e) in the case of a Judicial Police officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker —just to give some examples— who previously could receive a pension upon reaching 55 years of age after 30 years of service, they must now be forced to work ten more years to reach 65 years of age, despite the fact that in their daily work they carry an enormous emotional burden, which could affect —in an extremely negative way— the new landscape to which they are being abruptly subjected by having to work 10 more years. The plaintiffs argue that all these changes, and others derived from the application of Law 9544, were made without technical-scientific studies, not accounting-type studies like the IICE products, but demographic and sociological studies that allow determining, with certainty, the possibility that Judges of all matters processed by the Judicial Branch, as well as Judicial Police officers, administrative personnel, Prosecutors, Public Defenders, among others, can continue working —by having to extend their years of service to retire due to the reform— without affecting public service, but above all without causing damage to their physical and mental health. Here they highlight that many of these judicial servants, being very close to obtaining their retirement, already had a retirement plan for which they had been preparing for several years and now, with the reform, they have to modify it, those plaintiffs considering that this harms the expectation of finishing a judicial career. They add that, in addition to the above, for the cases of people who will have to work beyond 65 years of age in order to obtain the right to retirement, what is indicated in Conventions of the International Labour Organization is being breached, which indicate that the retirement age cannot exceed 65 years, as provided by ILO Convention No. 102 in its Article 26, paragraph 2, as well as ILO Convention 128 in its Article 15, which, as relevant, states:

"The prescribed age shall not exceed sixty-five years, but a higher age may be prescribed by the competent authority, taking into account appropriate demographic, economic and social criteria, justified by statistical data.

3. If the prescribed age is equal to or higher than sixty-five years, that age shall be reduced, under prescribed conditions, for persons who have been working in occupations deemed by national legislation as arduous or unhealthy for the purposes of old-age benefit".

XXXIII.Magistrate Araya García drafts. On this issue, there is no specific opinion issued by the Office of the Attorney General, which in its report reiterates the power of the legislator to make the necessary adjustments so that the pension funds are sustainable and can thus provide the promised benefits to all their participants. The same applies to the Legislative Assembly, which considers that the decision taken was based on the technical studies provided. The Supreme Court explained that on this topic, it refers to what was indicated to the Legislative Assembly within the legislative file, in the sense that all these changes represent a disincentive for the entry of valuable professionals into the Judicial Branch who, taking into account the economic result of a future assessment, would prefer to pursue their professional career in another work environment, as the judicial, prosecutorial, Public Defense, and general staff career is affected. In addition to this, it pronounced, indicating that the renewal of the staff who manage to remain in the Judicial Branch will be affected, so that there will be elderly officials who will continue working solely out of necessity and the decrease their income would suffer in the event of retiring; the judicial population will be at a crossroads because they desire to opt for retirement and have the motivation to retire to rest, but they are placed in a condition in which they must assess their economic situation. It also argued that all this reduces the competitiveness of the Judicial Branch in the labor market and this will affect the quality of the Administration of Justice. It further considered that the regulation of the Judicial Branch Retirement and Pension Fund should not be assessed solely from an economic perspective because we are dealing with inalienable fundamental rights associated with a worker who, during their years of service, has contributed to a regime with the expectation of having a decent retirement that allows them to satisfy their needs and enjoy quality of life in their retirement years, but now, the imposition derived from the new law will affect vulnerable population groups even though it is a group that requires greater protection from the State.

XXXIV.Magistrate Araya García drafts. It is asserted that the reform has imposed on the present and future participants of the fund a set of eligibility conditions that severely hinder their possibilities of enjoying an adequate retirement when they cease their work as judges, police officers, prosecutors, public defenders, and judicial workers in general. In this regard, the Court notes that the allegations of harm to the right to an appropriate and fair retirement are constructed by making a comparison between the previous system (which the plaintiffs seem to endorse) and the system introduced by Law 9544. Therefore, it is worth recalling what the changes were —regarding eligibility— that the regime underwent with the regulatory change, starting with the ordinary retirement, whose age was increased by 3 years and the years of service, which increased by 5 years; the number of those years that must have been worked for the Judicial Branch was also modified, going from being "the last 5 years" (repealed Article 231) to a minimum of 20 years worked within the Judicial Branch. Regarding early retirement, the changes are summarized as follows: early retirement with proportional payment for completion of years of service was changed, going from 30 years of service to 35, provided that a minimum retirement age is met, which was set at 62 years for men and 60 years for women; likewise, early retirement with proportional payment for completion of age was modified, going from 60 years and at least 10 years of service (repealed Article 225) to 65, with a requirement of at least 20 years of service in the Judicial Branch according to the currently valid text. In addition, the amount of the retirement payment was adjusted downward, going from 100 percent of the average of the last 24 salaries to being 82 percent of the average of the last 240 salaries.

Regarding such variations, the plaintiffs elaborate a series of examples of situations that they consider unjust and contrary to international regulations, but the truth is that the examples presented are not sufficient to make a decision to annul the rule as requested, because it happens that no real and current data on age profiles at entry to the Judicial Branch is provided in order to verify, for example, what the behavior of the fund participants has been regarding the use of the early retirement figure, or whether the case of the person entering the service of the Judicial Branch at age 46 repeats itself with sufficient frequency to conclude that the system, as a whole, becomes openly unjust by requiring more years of service specifically in the Judicial Branch; likewise, nor regarding years of service, are technical data provided capable of disproving the actuarial report, which would suggest that a large number of people would have to stay well beyond 65 years to complete the 20 years of effective service within the Judicial Branch. Neither is it valid to compare the supposed expectations of obtaining early retirement under the previous law with the conditions for acquiring ordinary retirement in the new regime because this is incongruous, as they are qualitatively different cases. It cannot be lost sight of that the logic that currently underpins pension regimes such as the one under analysis aims to achieve —over time— sufficient economic conditions to provide protection to participants when their work capacity is affected by the effects of old age or another contingency; and that is the reason why state authorities must set parameters that ensure sufficient utilization of labor and productive potential and the assurance of dignified conditions for when that potential declines due to age. Thus, for the Court, the centrality of this issue is that the modifications to eligibility in the different modalities respond to a need for a compromise between the particular conditions of the work carried out by the Judicial Branch and the need for the pension system for the protection of its servants when they reach old age to be financially sustainable as a whole, over time.

As stated, the Chamber shares the thesis that the creation of a separate retirement regime for the Judicial Branch has been a key piece for the relevant role that this body has fulfilled within the social and democratic State of Law in our country; however, this cannot serve to petrify a situation that, as has been demonstrated, financially threatened the stability of the Judicial Branch fund, the rights of its beneficiaries, and of the Costa Rican State itself, which has provided a good part of the funds to build said regime. In this way, in the face of the economic emergency that imposed a modification, the changes made represented —for the generality of the participants who have made a judicial career and aspire to an ordinary retirement— a delay of 3 years with respect to the requirements of the previous law, and a delay of 5 years in the vast majority of other cases, for those who aspire to early retirement. As is clear, the design could not take into account all the possible particularities that may arise in specific cases, but as indicated, in the generality of cases, the modifications of 3 and 5 years respectively are supported by technical studies, and for the generality of people, it is not an acute aggravation of their eligibility situation. It is clear that the general hypothesis proposed by the plaintiffs that judicial workers in general, and solely because of working in that institution, are subjected to a burden and wear clearly differentiable from other groups of workers, is not supported by evidence provided in the case file, nor is there any demonstration that the examples offered reach such a degree of reiteration that they affect the overall fairness of the system with such magnitude that it can be said that the fundamental rights of the generality of its participants have been harmed, which does not mean that there are no groups within the generality of workers that do require special measures due to the type of work they have, but this requires specific technical studies for each group and determination of their actuarial impact on the system. The variables contained in the actuarial study that served as the basis for the challenged reform, in addition to being a comprehensive study, is a study that assesses the effects over 100 years of the variables analyzed. Specific examples, without projection or comprehensiveness, the Chamber believes do not have the weight to disprove technical evidence of this magnitude. To refute this evidence, an equivalent actuarial report is required.

Let us add to this that the original design that was modified by Law 9544 dates from 1993, that is, from a date prior to the substantive paradigm shift that occurred with the enactment of the Worker Protection Law (Ley de Protección al Trabajador) number 7983 of February 16, 2000. With this latter law, the general pension design of the Costa Rican State for the protection of workers in their old age was rethought, and a three-pillar system was established, the first being the basic pension regime (in this case, the Judicial Branch Retirement and Pension Regime) financed on a tripartite basis between the worker, the employer, and the State; a second pillar constituted by a complementary pension regime of individual account financed by the worker and the employer; and finally, a third pillar made up of the worker's long-term savings plans. Thus, that complementarity freed the basic regimes from the task of providing, by themselves, broad and complete benefits, since the needs of retirees will be met with resources from the three cited sources. For this reason, and facing the need to review the characteristics of the basic regime applicable in the Judicial Branch to achieve its sustainability, the attempt to adapt it to the new system makes sense, so that the final sum of all pillars can be the achievement of sufficient economic benefits to achieve a dignified basic retirement and which —depending on the effort made by the interested party themselves— can be increased to assimilate it more or less to the standard of living enjoyed during their active working life. In this way, a possible verification, in some specific case or small group of cases, of some gap or seemingly unjust solution for being incomplete, within this basic regime and its normal operation, cannot —by itself— become a reason to dismantle the entire structure without properly verifying at the same time —which the plaintiffs have not done— the impossibility of the general social security system, as a whole, to provide a solution that appropriately addresses the rights of those affected. In conclusion, it is appropriate to dismiss the claim raised, insofar as it has not been technically demonstrated that the changes in the eligibility conditions have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, along with the other components of the pension system, to the achievement of their right to a dignified old age. In fact, had the reform not been made, the rights of all the beneficiaries of the Regime would be affected in a more burdensome way for them and for public finances. Likewise, returning to the conditions of the previous law, which would be the consequence of annulling the challenged regulation, would imply returning to the unsustainability of the regime. Nor has it been demonstrated in the case file that the conditions of the Costa Rican Social Security Fund regime, which has been publicly announced to itself have financial sustainability problems, is a better technical alternative than the one adopted by the legislator, since, in this aspect, no technical studies supporting that thesis have been provided either.

XXXV.- Magistrate Hernández López drafts. Regarding the infringement of the principle of judicial independence with the changes in the conditions for the retirement of judicial servants. A group of the plaintiffs has raised, as part of their claims, the existence of a harm to the principle of judicial independence with the issuance of the challenged Law number 9544. One aspect of their arguments concerns the alleged impact on the Constitutional Article 167 and, in general, the independence that the Political Constitution attributes to the Judicial Branch as an institution. Such claims were analyzed extensively when reviewing the procedural claims and, in particular, the alleged harm to the cited Article 167 of the Fundamental Charter. However, it remains to rule on the allegations referring to the impact on the guarantee of independence of the specific task of judging that the State must ensure, in line not only with our Fundamental Charter but with the provisions contained in various international instruments on human rights ratified and in force in our country. The issue has been raised by the plaintiffs as an indirect impact on the independence that judges must enjoy in their work of resolving disputes adhering only to the law, since it is maintained that the changes brought about in their retirement regime affect their working conditions, making them more susceptible to undue pressures.

XXXVI.- Magistrate Hernández López continues drafting.

The Court begins by recognizing that, indeed, two dimensions have been defined for the concept of judicial independence: the institutional (relating to the Judicial Branch) and the individual (also called personal or subjective), which seeks to make visible and monitor the subjective dimension, relating to the figure of the judge (understood in a general sense as equivalent to adjudicator) and in relation to all the factors that surround them and which, in turn, guarantee the full and effective fulfillment of the principle. In this line of thought, judicial independence refers primarily to the function of the judge as a public servant to carry out their work of safeguarding and realizing objective Law, without subordination or submission to anything other than the Law and the Law, free from orders or instructions from third parties, whether these be private individuals, public bodies, or other jurisdictional bodies. But, in addition, the principle encompasses the conditions surrounding this work, such as being subject to a professional career ladder or a disciplinary and sanctioning regime, and aspects of a personal and economic nature must also be included. The Chamber has opted for this approach, as demonstrated in resolution 2018-5758, which issued the advisory opinion precisely on the text that became the discussed Law 9544. There it was stated:

"What is part of judicial independence is that judges have dignified economic sufficiency, both while active and inactive, regardless of whether the pension regime is specific to judges or not. In fact, not all countries have particular regimes for judges, but the most consolidated democracies do take pains to care for the judiciary as a key piece of the stability of the Rule of Law. Countries that have bet on the force of law and not of arms for their stability depend on the quality of judges to have quality democracy, because these are the strategic guardians of the rule of law. In the case of our country, as the State of the Nation has rightly pointed out, the Judicial Branch has the particularity of being a conglomerate of institutions that are very relevant for the rule of law (Prosecutor's Office, Judicial Police, Public Defense, and Judiciary) and its strength was what largely allowed the development and consolidation of democracy in the 20th century in our country. Thus, the first State of the Justice report states:

"The Judicial Branch has been key to Costa Rican democracy." "The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust system of justice administration and without the recent efforts to modernize it." In that sense, it was a success of the legislator to endow the Costa Rican justice administration with guarantees and incentives, because only in this way could the rule of law that emerged from the Second Republic be materialized, which would depend for its success on a robust regime of legality and no longer -as was said- on the force of arms, a path that most countries in the world had chosen, especially Latin American ones." Furthermore, this jurisprudential position clearly coincides with the main international sources on human rights, as exemplified in the so-called "Basic Principles on the Independence of the Judiciary" adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, whose eleventh principle states:

"Conditions of service and tenure. 11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law." It is thus demonstrated that aspects related to pensions and retirements could eventually affect the stability of the judiciary, and for this reason it is constitutionally appropriate for this Chamber to review what the legislator has done from this perspective. In this regard, what was already stated in judgment 2018-5758 must be reiterated:

"(...) What is clear is that the creation of the Judicial Branch pension regime was key to the stability of the administrative and judicial career of its servants and officials and became a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. Together with it, it allowed stability for judges and other servants and officials while active and inactive, which made the judicial career attractive to many jurists and thereby favored the stability and specialization of many officials in different branches of the judicial apparatus, but clearly, it was not created as an intrinsic element of judicial independence ( a core aspect of the constitutional protection of Article 167 when it speaks of 'structure and functioning'), which is constitutionally based on other factors, such as the existence of a career that guarantees objectivity in the selection of judges, based on criteria of suitability and stability, the economic and political independence of the body, among others; but the legislator could well have opted for a single regime for all public employees or workers in general, without it being possible to affirm that this diminishes the independence of the body"

And it added that:

"However, it cannot be affirmed -from the perspective of the majority of the Chamber- that the Judicial Branch pension regime is part of the essential content of judicial independence or that it affects its structure and functioning, although, as stated, it has historically functioned as its necessary complement and, for the good of Costa Rican democracy, it must be ensured that it is as stable and dignified as possible." (underlining not in original) XXXVII.- Justice Hernández López continues writing. From what has been stated, the question that arises is whether, as the plaintiffs maintain, the changes and reforms introduced to the Judicial Branch Retirement and Pension Regime actually put at risk the dignity and conditions of service of the administrators of Costa Rican justice, such that it can be said that independence in the exercise of their duty to impart justice is undoubtedly affected. For the Court, the answer to this question is negative, understanding that -as is maintained throughout this decision- the changes made were necessary precisely to achieve the sustainability of the special retirement and pension regime for judicial servants, and whose debacle would have truly meant a serious threat to the economic stability of the administrators of justice. Equally important for dismissing the claim is the fact that the legislatively established modifications are not the result of unfounded whims of the legislators, but were adopted based on technical criteria, with broad participation of the interested parties, and were neither untimely nor capricious and are based on technical criteria. In this regard, the Chamber considers that the new pension system, as the first pillar of the broader social security framework that covers the administrators of justice similarly to other workers, assures them a space of economic security. For all these reasons, it is appropriate to declare the action without merit in this aspect as well.

C. CLAIMS RELATED TO CHAPTER III TITLED "THE FUND" OF TITLE IX "JUDICIAL BRANCH RETIREMENT AND PENSION REGIME" OF THE ORGANIC LAW OF THE JUDICIAL BRANCH

XXXVIII.Justice Araya García writes. Claims related to the legally ordered deductions from retirement and pension payments. Law 9544 includes a chapter called "the Fund" which contains the rules relating to its financing and other provisions regarding the monies it comes to administer. The plaintiffs consider that two norms in said chapter, numerals 236 and 236 bis, are unconstitutional, as will be explained. As for the first, its text states:

"Article 236- The Judicial Branch Retirement and Pension Fund shall have the following revenues:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial servants, as well as of the retirements and pensions payable by the Fund, a percentage that shall be withheld in the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its servants.
• 3)A State contribution that shall be a percentage on salaries and wages equal to that established for the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund (CCSS).
• 4)The returns and other benefits produced or that the Fund may come to generate or obtain.

In no case shall the sum of the mandatory contribution and the special, solidarity, and redistributive contribution and, in general, the totality of deductions applied by law to all retirees and pensioners of the Judicial Branch Retirement and Pension Fund, represent more than fifty-five percent (55%) of the total gross amount of the pension that legally corresponds to the beneficiary. In cases where this sum exceeds fifty-five percent (55%) of such, it shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained with the mandatory contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund." The norm includes a tripartite contribution in which the State as such participates (under conditions of equality with that contributed to the CCSS regime), the State as employer (Judicial Branch), and a third contribution of 13 percent called "worker contribution" charged to the participants of the Fund, that is, active workers, retirees, and pensioners. Also added is a rule for current and future beneficiaries of the fund (retirees and pensioners) consisting of setting a cap of 55 percent of the gross amount of the retirement or pension as the maximum sum for legal deductions. This creates a floor of 45 percent of the gross retirement amount, which shall be the minimum amount received after all legal deductions have been made. It is interesting to note that for the general case of retirement or pension payable by the fund, the current sum of the applicable legal deductions includes -both for active workers and for retirees and pensioners- the 13 percent contribution to the Fund; the corresponding health insurance currently set at 5.25 percent; a 0.50 percent fund administration fee; and a variable percentage depending on the amount of the gross retirement amount for the payment of the salary tax established in Income Tax Law number 7092. The plaintiffs explain that, according to the discussed Article 236, the totality of deductions applied by law to all retirees and pensioners of the Judicial Branch Retirement and Pension Fund may not represent more than fifty-five percent (55%) of the total gross amount of the pension that legally corresponds to the beneficiary, which for them means that the maximum retirement amount that a judicial servant could aspire to would, in certain cases, be less than 45% of the last salary, since this numeral allows deductions to reach up to 55% of the retirement benefit, with which they consider that what the retiree or pensioner would finally receive would be a ruinous figure that, in addition, violates the principles of proportionality and reasonableness because it is also not related to the increase in retirement age and the number of years the worker must work to finally obtain a retirement much lower than the last salary they earned. The plaintiffs consider that the new form of calculating the retirement and all the applied deductions reduce it to such a degree that it becomes "a ruinous, pauperizing, and undignified reduction not only for people who serve as judges of the Republic but for all people who work in the Judicial Branch," completely contrary to international law instruments that point out that States must guarantee judges remuneration "commensurate with the importance of the function they perform and the demands and responsibilities it entails," but also provide adequate pensions and retirement conditions, equally adjusted to the responsibility of the position and the job in which they served during their professional life. They further add that this norm is questionable because it allows the calculation of deductions to be made up to the maximum limit of 55% of the fixed gross retirement amount and not with respect to the gross salaries used as the basis for calculating the retirement. On this matter, they consider that Law 9,544 authorizes confiscating up to 55% of the pension amount in the course of payment, without technical studies having been available to support the reasonableness and proportionality of the measure upon its enactment, which implies that, from the constitutional point of view, the questioned law is unconstitutional for not meeting the necessary parameters in the law-making process that the Chamber has considered indispensable.

XXXIX.- Justice Araya García writes. The Attorney General's Office stated that, in accordance with that norm, it is not possible for the amount of legal deductions applied to a judicial official's pension to exceed 55% of the gross amount of the benefit; if that were to occur, it would no longer be a problem of the norm's constitutionality, but of its application, which it considers is not reviewable through the constitutional jurisdiction channel. It refers again to the fact that the reasonableness, proportionality, and justice of the legislative reform to a pension regime must have as a parameter the data produced by technical studies, where the magnitude of the changes to be made must be reflected, and in this case, the Attorney General's Office considers that the changes made to the Judicial Branch's pension regime have the necessary technical backing to affirm their conformity with Constitutional Law. The Supreme Court of Justice pronounced itself, indicating that for the deductions authorized for a retirement, Recommendation No. 43 of the International Labour Organization must be taken into account, according to which the retirement or pension must satisfy the essential needs of people in their old age, so the amount must be set taking into account the "cost of living and the social situation during the period of professional activity," that is, the standard of living that the working person had during their active professional life must be respected. It also noted that the contribution to the fund was increased to 13%, maintaining that percentage for the contribution that retired and pensioned persons must make, unlike other retirement regimes where once a person is retired or pensioned, they cannot continue contributing; a condition that must be assessed in an integral manner with the rest of the articles where amounts are also established that reduce the approved percentage for retirement due to deductions for contributions, special, solidarity, and redistributive contributions, in addition to income tax. For her part, the President of the Legislative Assembly refers in general terms to this being one of the reforms introduced to the Judicial Branch Retirement and Pension Regime that is based on the technical studies carried out and, therefore, was not an arbitrary decision of the legislator.

XL. Justice Araya García writes. To decide on this claim, the Chamber takes into consideration that the plaintiffs resort, for their argumentation, to a parameter whose legitimacy and validity they fail to properly substantiate. Thus, simply affirming that the retirement amount becomes ruinous and injurious to the dignity of retirees because the benefit can be reduced beyond 55 percent of the last salary received or the reference salary, cannot have the virtue of convincing this Court of the unconstitutionality of the challenged reform. To begin with, it is observed that the use of the concept of "the last salary" seems to seek to closely link the retirement benefit with the last income level of the retiree, such that a reduction of that level by more than 50 percent would represent an excessive decrease in their available resources; however, in the first place, our pension systems, including that of the Judicial Branch, have never used the last salary as equivalent to the retirement payment, so the plaintiffs should have started by demonstrating that constitutionally the use of such a parameter is appropriate in this case, which has not happened. The closest approximation to this arises from the invocation of the text of ILO Recommendation No. 43, as was raised at the time by the Supreme Court of Justice during the processing of the legislative bill, in the sense that the retirement should be set taking into account the "cost of living and the social situation during the period of professional activity," but this Chamber observes that, apart from the fact that it was only recommended to "take into account" the social situation of the retiree during their working life, consulting the official website of the International Labour Organization on the internet (www.ilo.org) allows affirming that such recommendation and its criteria were issued in 1933, but were subsequently withdrawn by agreement of the International Labour Conference in 2004, understanding that its developments had been addressed with the issuance of ILO Convention 128 of 1967 (not ratified by our country), and whose text closely follows the line established in ILO Convention 102 of 1952 (this one duly ratified by Costa Rica), which has in fact been used by the Chamber in deciding these issues. Based on the foregoing, the Court does not consider that said ILO Recommendation No. 43 and its contents constitute a valid source for resolving the present case, compared to the provisions of Convention 102 of the cited organization, which does form part of our legal system, with all of which the cited recommendation loses support even as a guide for defining the scope of legislative effects on retirement payments. Secondly, the plaintiffs speak of high percentages of impact regarding the last salary, but -apart from what has been said about such a parameter- the truth is that no technical evidence is provided regarding the actual impact and effect of the challenged legal reform, given that all deductions except one are pre-existing to the reform, and the only nominal changes that the Chamber appreciates are: the shift from 11 to 13 percent in the worker quota and the charge of 5 per thousand (that is, 0.5%) for attending to the Fund's administration expenses, so that -in its essence- the deduction structure is not greatly different from that applicable to the fund participants during their working life, nor compared to the previous legal situation that the plaintiffs vindicate; consequently, it was incumbent upon the plaintiffs to demonstrate that such modifications generated a serious decrease in the real income of those affected, but such evidence is lacking. Thirdly, the plaintiffs additionally indicate at this point that the impact originates from applying that deduction structure to an already greatly diminished gross retirement amount, consisting of barely 82 percent of the reference salary calculated by averaging the salaries of the last 20 years, instead of the last 10 years as suggested by the technical studies. However, this brings us back to the claims related to the conditions for the constitutional validity of determining a benefit system that is consistent with the need for the Fund to be sustainable over time, precisely for the general benefit of all who participate in it, which has been endorsed by this Chamber in the preceding recitals, understanding that this is, in this case, a constitutionally legitimate exercise of legislative powers. In fourth and final place, it is worth noting that a claim like the one raised on this point (delivery of retirements qualified as "ruinous, pauperizing, and undignified") cannot be based on abstract elaborations referring solely to deduction percentages, because this omits the fact that "ruin," "pauperization," and "indignity" do not operate in the abstract but are verified in reality against the insufficiency of the payments and the actual amounts received; with this, it is meant to emphasize that speaking abstractly of deductions of 50 or 55 percent on the last salary could include, for example, cases of salaries between 4 and 6 million colones which, reduced by half, leave the beneficiary with a net retirement sum of around 2 to 3 million colones monthly, which -in light of this Court's experience and barring proof to the contrary- cannot be openly considered insufficient to live a dignified old age in our country.

In conclusion, this aspect of the claim relating to the excess of deductions with respect to the last salary must be denied for not constituting a violation of constitutional rights.

XLI. Justice Araya García writes. A different response must be given to the case that some of the plaintiffs raise around this same topic, for they point to the constitutional invalidity of the norm contained in the final part of Articles 236 and 236 bis of the Organic Law of the Judicial Branch, as amended by the discussed Law, since -this time- they claim that a maximum cap of 55 percent on deductions with respect to the gross retirement amount is regulated, which they consider excessive and injurious to the fundamental right to retirement. On the specific topic, this Chamber had the opportunity to define its position in recent judgment number 2020-19274 of 4:30 p.m. on October 7, 2020, in which it stated in its operative part:

"By majority, the accumulated unconstitutionality actions are partially granted. Consequently, the contribution percentage and the special contribution established in Laws No. 9380 and No. 9383, both dated July 29, 2016, are annulled, insofar as they exceed 50% of the gross pension amount that corresponds to the retired or pensioned person. However, in accordance with Article 91 of the Constitutional Jurisdiction Law, to avoid serious dislocations of security, justice, or social peace, the Chamber grades and dimensions the effect of this resolution, so that, from the month following the notification of this judgment, the Tax Administration must make the corresponding adjustment in accordance with this judgment, so that the tax burden on the amount of retirements and pensions does not exceed 50% of the gross amount received by the retiree or pensioner. Justice Castillo Víquez gives different reasons. Justices Rueda Leal, Hernández López, and Garro Vargas dissent and declare said accumulated actions without merit for different reasons. As for Laws No. 9381 of July 29, 2016, and No. 9388 of August 10, 2016, by unanimity, the actions are declared without merit. Justices Rueda Leal, Hernández López, and Garro Vargas give different reasons. On other matters, by unanimity, the actions are declared without merit. By unanimity, accumulated actions No. 17-007660-0007-CO and No. 17-005794-0007-CO are flatly rejected, as they did not offer clear and precise argumentation of the reasons for acting against the norms subject to this action. Justices Cruz Castro and Hernández López add separate notes. Justice Rueda Leal issues a particular vote regarding the following aspects: 1) Declares inadmissible the unconstitutionality actions assigned file numbers 17-004865-0007-CO and 17-007660-0007-CO, because the amparo appeals that served as the prior matter were filed when the contested laws had not yet been applied to the protected parties. 2) Declares the action without merit regarding Laws No. 9380 and 9383, since they are neither contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they violate the international protection enjoyed by older adults. In this regard, he considers that, according to the express text of Article 67 of ILO Convention C102 of 1952 -Social Security (Minimum Standards) Convention-, the pension or retirement can be reduced as long as 40% of a reference salary is respected; however, from the arguments of the plaintiffs, an evident and automatic violation of that percentage is not apparent, since Laws 9380 and 9383 establish a limit of 55% with respect to the total gross amount of the pension. Furthermore, the exempt minimum contained in Law No. 9383 and the 55% limit on deductions of the largest pensions subjected to a gradual scale of impact, guarantee more than dignified pensions for older adults. 3) Declares the action without merit regarding Laws No. 9381 and 9388, since he considers it constitutionally valid that, in accordance with the principle of social solidarity, when a pension regime is in a crisis of financial sustainability, the conditions of the pensions or retirements with greater benefits be modified to resolve that situation, provided that the adjustments are aimed at safeguarding the regime's sustainability and respect the principles of reasonableness and proportionality, as well as the human dignity of older adults. 4) As for the rest of the aspects, he gives separate reasons. Justice Garro Vargas adds a note. Communicate this pronouncement to the Legislative, Executive, and Judicial Branches. Summarize this pronouncement in the Official Gazette La Gaceta and publish it in full in the Judicial Bulletin. Notify.-" From the foregoing pronouncement, the majority of the Court concludes that, for Costa Rican Constitutional Law, it is not acceptable for the reduction of gross retirement amounts to exceed a maximum of 50 percent established in said judgment. From the above, it is evident that Articles 236 and 236 bis of the Organic Law of the Judicial Branch, as amended by the contested Law 9544, are unconstitutional, since both set 55 percent as the maximum cap for legal deductions, which exceeds the maximum established by this Court in the cited judgment by 5 percentage points. As relevant, it was noted:

"X.- Regarding the allegation of non-confiscation raised in the actions. The principle of non-confiscation is not expressly established in the Political Constitution, but must be implicitly derived from the relationship of Articles 18, 45, and 50 of the Magna Carta, as a limit to the State's taxing power. The Chamber, in delimiting the principle of non-confiscation, has established its intrinsic relationship with some fundamental rights, but preferentially with the right to property, especially when dealing with material as well as immaterial rights. Thus, in Judgment No. 1993-05749 of 2:33 p.m. on November 9, 1993, this Chamber established:

"The state can take a proportional part of the income generated by the individual to cover its expenses, provided it does not annul property as such, as would be the case if the tax completely absorbed the income. If the Constitution (sic) protects the right of property to the integral patrimony, it cannot be recognized and admitted that other provisions destroy it. Thus, to be constitutional, taxes must not distort other fundamental rights; the Constitution ensures the inviolability of private property, as well as its free use and disposal, and prohibits confiscation; therefore, a taxation measure that goes beyond what is reasonable and proportionate cannot be permitted. The tax is a means of economic policy, which must be harmonized with public spending and the economic situation, and its limit is the taxpayer's ability to pay. The ordering of taxes must be based on the principles of generality and equitable distribution of public burdens. The application of the principle of equality refers to the proportionality of taxes, with unequal quotas being necessary to produce equal sacrifices, so that there is relative equality with respect to the capacity to pay, that is, the economic capacity of the subject who must pay must be considered." If the Constitution in Article 45 establishes that property is inviolable, and in Article 40 that no one shall be subjected to a penalty of confiscation, it is beyond doubt that the tax cannot be such that it renders those guarantees illusory. What we must understand by "substantial part of the property or income" is something that cannot be established in an absolute manner; the component of discretion or reasonableness must be assessed in each specific case, circumstantially, according to the factual needs, the demands of time and place, and the economic-social purpose of each tax. But it can be established as a principle that a levy is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or if the tax absorbs a substantial part of the taxed transaction, and it will be up to the Judge, in each case, to analyze these circumstances, which will, logically, be variable, and the correct approach is to analyze those situations concretely." Similarly, that doctrine is repeated in other rulings of this Chamber, in which it has defined the principle of confiscation; for example, in No. 1995-554, of 4:45 p.m. on January 31, 1995 - reaffirmed by the cited Ruling No. 2003-5276, of 2:54 p.m. on June 18, 2003 - among others. From the foregoing, the premise is clear that taxes must not denature other fundamental rights, especially when the Political Constitution establishes the inviolability of private property, as well as its free use and disposition, and the prohibition of confiscation. This latter interdiction must be understood as the impossibility of stripping a person, through a disproportionate penalty or exaction, of all or a significant part of their assets, due to a violation of a legal duty or through taxes, to transfer them to State property without any compensation. It must be affirmed that it is incumbent upon this Chamber to determine, regarding this principle, whether the challenged regulations have confiscatory reach, understood as meaning that the tax authority exceeds its bounds by levying a portion of the property (or a right) of the taxpayer that would be protected as a fundamental right.

It is worth noting that the issue involves an exercise of balancing public powers and fundamental rights, the intensity of the exercise of the tax authority over property, since it would have the principle of non-confiscation as a limit. In this sense, progressivity in taxes finds its basis in the need to address the principles of ability to pay and non-confiscation. What might be confiscatory for some may not be for others, clearly according to their ability to pay. Tax justice must have a close link with the principle of reasonableness and proportionality, especially in the matter at hand, where the maxim must be fulfilled that we must all contribute to public expenses, but in accordance with the possibilities of each tax debtor. While it must rightly be affirmed that the tax obligation should not exhaust the capacity to generate income and property, it is imperative also to reaffirm that taxes cannot absorb a part of social security benefits, especially when these are covered by international law, even when as an economic benefit from the State they have not entered (or should have entered) the individual's estate. In this regard, it must be recognized that the monetary benefit received by the pensioner is susceptible to being taxed; there is a limit - as indicated supra - on the amount. Thus, as the plaintiffs affirm based on the principle of non-confiscation, it cannot be permitted that taxes absorb what they argue is the property of individuals, and which this Chamber understands as the economic benefit received derived from the right to a pension, and which allows concluding that the money that has effectively entered the individual sphere of the beneficiary would be private property that could not be retroactively reached by the challenged regulations. However, the problem lies in the deduction that, in excess (at least up to 5%), has been made on the economic benefit that the State should not have made, which by right corresponds to the pensioners and retirees, especially if that part has been recognized as their right to a pension. With this, we refer to the extra 5%, regarding all the taxes that the pensioner or retiree must pay.

Now, specifically, the problem of constitutional relevance lies in the fact that with the special, solidarity, and redistributive contribution, it is denoted that this is done through staggered deductions made on a gross amount, which then return to the State's single fund (pursuant to Article 4 of Law No. 9383, to finance the pension regime and the non-contributory regime of the C.C.S.S.). To this is added the contribution percentage of pensioners, retirees, and active employees, which is done pursuant to the regulation, gradually and proportionally according to the salary or pension amounts involved (from 9% to 16%), according to paragraph 2 of Article 11 of Law No. 7302, reformed by Law No. 9380. And as previously indicated, other taxes are included in these reductions, such as the income tax levied on the gross amount. That is, in those cases where the regulations under analysis apply, they clearly produce an effect of stripping the economic benefit from the pensioner, through an exaction that affects a part of their income (by at least up to 5%), through the application of taxes to transfer them to State property without any compensation. This Court recognizes that the impact this has on the economic position of the older adult, especially from one moment to the next, is not something easy to assimilate, particularly when the accustomed economic inflow is abruptly reduced by more than 55%, all of which produces a considerable regression in the economic situation of the older adult. It has been alleged that these reductions contravene a margin of dignity and adequacy of the older adult in old age, and that from what was stated supra, the scrutiny of these regulations must conclude that by failing to comply with Convention No. 102 of the International Labour Organization, it fails in its duty to provide a full pension amount.

There is no doubt for this Court, as stated earlier, that when the State demands payment of taxes from taxpayers, this demand must meet certain standards. In this sense, as discussed previously, these would be international parameters legally binding on the Costa Rican State, which it cannot ignore or attempt to annul if there is a superior norm that offers greater protection, especially in favor of the human person. With this provision, the State has first recognized the plaintiffs' right to a pension according to the legal system it promulgates, in which case they are entitled to receive an economic benefit as holders of the right, that is, an amount of the benefit without discrimination as corresponds to them. Similarly, that amount would be subject to certain conditions that the regulatory framework must meet, for which it would be unlawful for the State to step outside them.

This Chamber understands, from the filing brief of the plaintiffs Ramos Valverde and Pacheco Salazar, as well as the co-plaintiffs Vargas Aguilar and others, that the challenge is against the special contribution itself, the confiscatory impact on those incomes that diminishes the dignity or adequacy of the economic benefits. On this point, according to official data, it is important to bring up the comparison of the economic benefits offered between the national regimes, insofar as the Hacienda pension regime is compared with other regimes, some without and others with a contribution fund. Furthermore, the Ministry of Labor and Social Security, as well as the National Director of Pensions, seek to demonstrate, based on the table transcribed below, that there are important differences between the non-contributory regime, the basic contributory pension regime (both administered by the Costa Rican Social Security Fund), and the pay-as-you-go or budget-based pension regime, which remains comparatively better positioned. The foregoing without forgetting that it depends 90% on the National Budget. This is evidenced as follows (visible in the report at folios 3795-3814 of the case file):

*Average pension amount taking into consideration the 18,700 individuals who would not be subject to the special, solidarity, and redistributive contribution.

It is observed from the above that, despite establishing a comparison between a basic regime such as that of the Costa Rican Social Security Fund, regarding the pension amount taken as an example for the plaintiff Ramos Valverde from the Hacienda Regime modified by the challenged legislation, the amounts received still show a better economic position by more than 2.3 times. However, the authorities compare it with the Regime of the Costa Rican Social Security Fund, thereby comparing different systems, one where there is a constituted fund, with its respective contribution mechanisms, fund investments, and reserves, which is not under examination, but evidently is not the same as the "pure" pay-as-you-go system based on the National Budget, as the plaintiffs rightly argue and the authorities explain. Although the authorities demonstrate that in the Hacienda Regime the pensioner's economic benefit improves, it is a system that operates without a formally constituted fund, which compared to one protected under the basic national scheme supported by the Costa Rican Social Security Fund and other substitute schemes, that argument leaves aside an aspect of real relevance, which is the level of salary contributions made into the system for a fund, an investment portfolio, as happens with others, such as those of the National Teachers' Union, the Judicial Branch, among others, which is not being taken into account.

On the other hand, it is illustrated that within the same Hacienda Regime, the higher pensions improve the average of those that would not exceed the contributory base of the challenged regulation, whose average amount of ¢464,641.20 would still be exceeded by 7.55 times. The comparison uses as benchmarks a universe of pensioners (18,700) below ten reference salaries against an individual benchmark, a comparison intended to demonstrate the State's reaction, which must be analyzed in greater depth. Precisely, a special, solidarity, and redistributive contribution of pensioners and retirees is designed to produce a significant decrease in income for a small group of retirees, motivated by a context of significant contraction of the national economy, which demanded a review of the pension system and the need to delimit certain pensions. But the foregoing, it is alleged, affects the customary economic benefit that was being received by the pensioners and retirees, so it needs to be demonstrated that there is a reasonable and proportional justification regarding the totality of the economic benefit intended to be affected, despite the fact that through this legislation, an income is reduced above the limits established in the standards that the country itself committed to with Convention No. 102 of the International Labour Organization.

What must be analyzed about the regulations is the reasonableness of the percentages and the effect they have, especially because the pension value is applied to the gross item, which means that various coercive exactions operate on the pension, which would exceed the total permissible costs of taxation, and it must be questioned whether a violation of the principle of non-confiscation occurs insofar as it is contrary to the right established in the Convention, as it exceeds 50%. In that sense, it would be necessary to determine if, in its application, due to its consequences or effects, there would be an unconstitutionality in the technical reasonableness and proportionality. This Chamber considers that all of the foregoing produces a significant reduction of that net part of the benefit, after applying the percentages of the corresponding contributions and the amounts of the contribution they must pay. But, with these other corresponding payments, as this Chamber established supra, all taxes considered together cannot exceed 50%, such as taxes (impuestos), fees (tasas), contributions (contribuciones), pension contributions (cotizaciones), income taxes (rentas), and legal deductions, since this would not only breach the principle of community solidarity, but also the constitutional principles of reasonableness and proportionality; in addition, as a parameter, the violation of paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization.

Regarding the requirement to pay more tax, it must be said that the design of the challenged provisions starts from a fixed parameter composed of ten times the lowest base salary paid in the Public Administration, according to the Public Administration salary scale issued by the Civil Service Directorate General. That is, there is a minimum exempt amount quantified by the legislation, which is expanded as the established base salary decreases. If the gross amount of the pensioner exceeds that amount, the law orders the application of a staggered and progressive levy contained in the provision.

Thus, Article 3 of Law No. 9383 establishes the following:

"a) On the excess of the amount resulting from ten times the lowest base salary paid in the Public Administration, according to the Public Administration salary scale issued by the Civil Service Directorate General, and up to twenty-five percent (25%) of said sum, they shall contribute twenty-five percent (25%) of such excess.

• b)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute thirty-five percent (35%) of such excess.
• c)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty-five percent (55%) of such excess.
• e)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute sixty-five percent (65%).
• f)On the excess of the preceding margin, they shall contribute seventy-five percent (75%)." As can be seen, the regulation contemplates a cumulative and progressive contribution where the total tax will depend on the pension amount that exceeds the different brackets established by the provision (which would maintain a relationship with the ability to pay). As stated supra, the base parameter for this imposition is established on the amount composed from ten (10) base salaries, subsequently increased by 25%, to finally tax the differences between the pensions that fall within the base parameter and the higher one. In this way, it progresses according to the gross pension amount of the respective interested party, and it will depend on whether the sum falls within a bracket, and if it surpasses it, it falls into another exaction. Thus, 25%, 35%, 45%, 55%, 65%, and 75% would be applied, respectively, according to each bracket concerning the differences.

The importance of the preceding explanation is because the regulation taxes an excess over the ten minimum salaries indicated supra, increasing the tax obligation of the levy as the pension amount exceeds the previously defined excess, which means that the higher the amount received, the greater the contributory obligation will be. The problem with the regulation has to do with the cumulative and increased effect it has with this and other taxes of a similar nature (which tax gross income), given that the challenged regulation concludes that in no case may the special, solidarity, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) with respect to the totality of the gross pension amount to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%), with respect to the totality of the gross pension amount, the special contribution shall be readjusted in such a way that the sum is equal to fifty-five percent (55%) with respect to the totality of the gross pension amount." In this way, it establishes a total levy of up to fifty-five percent (55%), which would be exceeding what is permitted in subsection 2) of Article 71 of the International Labour Organization Convention, which sets the costs of pensions at 50%, with the help of taxes and contributions from the community considered in its entirety, not solely from workers and pensioners and retirees. This implies that the tax debtor, in this case, the pensioner, would be contributing even more in taxes with the income tax, which would imply greater costs and deductions in their case, including a greater sacrifice demanded by society.

For the reasons stated, the majority of this Chamber considers that the action must be granted on this point, as will be recorded in the operative part of the ruling." Consequently, the final part of Articles 236 and 236 bis of the Organic Law of the Judicial Branch, reformed by the challenged Law, must be partially annulled, but solely and exclusively regarding those 5 percentage points of excess over 50 percent established by this Chamber with respect to the maximum limit for legal deductions on gross retirement or pension amounts.

XLII.-. Drafted by Judge Hernández López. Regarding the special, solidarity, and redistributive contribution created by Article 236 bis of the Organic Law of the Judicial Branch. As regards Article 236 bis of the Organic Law of the Judicial Branch, added by the challenged Law number 9544, the plaintiffs indicate that it likewise generates an unjust and unconstitutional reduction in the income of a group of retirees and pensioners. At the time the actions known here were filed, the text of the cited provision was the following:

"Article 236 bis- Special, solidarity, and redistributive contribution of pensioners and retirees. In addition to the common contribution established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be established shall contribute in a special, solidarity, and redistributive manner, in accordance with the following table:

• a)On the excess of the limit established in Article 225 and up to twenty-five percent (25%) of said limit, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess of the preceding margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess of the preceding margin, they shall contribute fifty-five percent (55%).

In no case may the sum of the special, solidarity, and redistributive contribution and the totality of the deductions applied by law to all pensioners and retirees of the Judicial Branch Pensions and Retirement Fund represent more than fifty-five percent (55%) with respect to the totality of the gross pension amount to which the beneficiary is entitled by right. For cases in which this sum exceeds fifty-five percent (55%) with respect to the totality of the gross pension amount, the special contribution shall be readjusted in such a way that the sum is equal to fifty-five percent (55%) with respect to the totality of the gross pension amount.

The resources obtained from the special, solidarity, and redistributive contribution established in this law shall enter the Judicial Branch Pensions and Retirement Fund." In the regulation, an additional economic burden was contemplated in favor of the fund, borne by those retirees and pensioners who received retirement or pension payments above the limit of 10 base salaries established in Article 225 of the Organic Law of the Judicial Branch as the maximum limit payable by the Judicial Branch Pensions and Retirement Fund. In this way, it is valid to affirm that the special solidarity contribution had an intrinsically transitory character, insofar as it would only be applicable to those who had acquired the status of retirees and pensioners under the previous pension design that did not set a limit on the payment of retirement amounts. It is therefore this legal text, which formed part of the original design of the aforementioned contribution, that will be analyzed in the following recitals, making two caveats: first, that Article 7 of Law Number 9796 of December 5, 2019, reformed subsection a) of the recently cited Article 236 bis to provide that the application of the special, redistributive, and solidarity contribution shall apply to all gross retirement or pension amounts exceeding six (6) base salaries of the lowest salary paid in the Judicial Branch, thereby modifying the original design of the law, since it maintained the maximum limit (equivalent to 10 base salaries) as the maximum payment for retirement amounts established in Article 225; and second, that as a result of that variation in the design of the special contribution established in Article 236 bis of the Organic Law of the Judicial Branch, some plaintiffs raised within these actions a request for a declaration of unconstitutionality by connection against Law Number 9796 lastly cited, but that claim will not be the subject of consideration or analysis here, but rather in the respective case file, according to the reasons that will be stated later.

XLIII.-. Drafting continues by Judge Hernández López. The plaintiffs' claims regarding Article 236 bis of the Organic Law of the Judicial Branch refer to the fact that the establishment of a "special, solidarity, and redistributive contribution" constitutes an additional reduction that they deem excessive, disproportionate, and unreasonable, since it does not take into account that throughout their working life, the judicial employee had been contributing to the regime, on average, 11% monthly on the gross salary, and that this contribution, increased by two percentage points, will continue to be made after acquiring the right to retirement or to a pension in cases where it applies. They also consider that this "new" contribution being created is contrary to the principle of equality, is confiscatory, and constitutes double taxation because judicial employees are being subjected to making two different payments for the same purpose, which is to strengthen the Judicial Branch Pensions and Retirement Fund. In addition to the above, they consider that fundamental rights of older adults are violated because these new burdens considerably modify the amounts of money they used to receive, with the consequent economic harm this represents to their financial obligations.

XLIV. Drafting continues by Judge Hernández López. The informants within these unconstitutionality actions stated the following on this aspect: the Procuraduría General de la República and the Presidency of the Legislative Assembly agree in denying the unconstitutionality of the creation of a special, solidarity, and redistributive contribution, since the concept is not novel, it has been used in the past and has been endorsed by this Chamber, for example, in ruling 1996-3256. For that reason, nothing opposes the legislator establishing a type of special contribution within the design of a pension regime. Regarding the principle of equality, they also do not consider that any injury exists because not only do contributions exist in other special regimes, but the Judicial Branch pensions and retirement regime cannot be compared in this aspect with that of the CCSS, since their characteristic conditions and benefits are different, and one cannot claim to take from each what suits a specific group of employees or former employees. Likewise, they reject the existence of double taxation because the contribution to the fund imposed on all beneficiaries of the Judicial Branch Pensions and Retirement Regime is one thing, and the solidarity and redistributive contribution imposed solely on retirees and pensioners receiving economic benefits exceeding ten times the base salary of the lowest-paid position in the Judicial Branch is another; a contribution that is also proportional and progressive, and has a different nature from that of the contribution, so it is not considered contrary to the Political Constitution. The Vice President of the Supreme Court of Justice stated that her represented party, from the very first moment, opposed the wording of the norm contained in Article 236 bis because this contribution, now called a solidarity contribution, is already implemented in the current regime - at that time -, since retirees and pensioners of the Judicial Branch continue contributing to the regime the same percentage as active working persons, which at that time was 11%, considering that any additional solidarity contribution should start from that already contributed percentage, recalling that furthermore, retirees and pensioners of the Judicial Branch also had to contribute to the CCSS sickness and maternity insurance, which corresponded to 5%, in addition to paying income tax between 10% and 15% given the range of their retirement or pension. In addition to this, she indicates that the Corte Plena stated that this solidarity contribution could not exceed 20% considering the 11% already contributed, since, otherwise, the totality of the deductions would be confiscatory and would violate the international and constitutional regulations established in the matter, pointing out that for this reason, a respectful request was made to the legislature that special care must be taken with the reductions imposed so that they do not become confiscatory.

XLV.- Drafted by Judge Hernández López. The constitutionality of the legal figure of the special, solidarity, and redistributive contribution in general. This Court has stated on previous occasions that the so-called special, solidarity, and redistributive contribution is not assimilable to a tax (tributo) and does not constitute one in the terms provided by the Political Constitution in Articles 18 and 121 subsection 13), since it is conceived exclusively to favor the regime of the obligated taxpayers, but under no circumstances may those monies enter the State coffers as current revenue to satisfy expenses other than the burdens of the retirement and pension system (see in that sense ruling number 5236-99 of 2:00 p.m. on July 7, 1999). It has also been affirmed that this type of contribution is a legal obligation born from a system that contemplates the contribution of the employees who are affiliated, and that this act of establishing the contribution must indeed be controlled, in such a way that it is possible to analyze, in a judicial venue, the respect for the established legal procedure and the reasonableness in establishing the contribution (see ruling number 5236-99 of 2:00 p.m. on July 7, 1999).

Thus, the special, solidarity, and redistributive contribution established in this numeral 236 bis of the Organic Law of the Judicial Branch is not a novel mechanism that the legislator is using to try to strengthen a retirement and pension regime; on the contrary, it has already been used in other systems, as was done in Law number 7268, which is the Reform of the National Teachers' Pension Regime, and this Court, in the unconstitutionality action number 3683-M-93, had analyzed that contribution and considered the following:

"III.- REGARDING THE CONTRIBUTION CONTEMPLATED IN ARTICLE 12.- The contributions, both the general and the special, established as a charge on pensioners and retirees in article 12 of Law number 7268, have constitutional legitimacy, as they are, in the first place, measures founded on the social nature of the retirement right, which are inscribed within the principles that make up the Social State of Law enshrined in Article 50 of the Constitution, and in the second place because, due to that indisputable social nature, the retirement right requires an active and predominant participation of the State for its effective realization, so that although it could not be eliminated or entirely neglected, it can indeed be limited, conditioned, and restricted to the extent that the State—society—finds itself materially impeded from contributing to its effective realization beyond a certain level, such limitations having to be accepted insofar as their purpose is precisely to ensure the survival and the effective exercise of the retirement right for all workers and, specifically, the materialization of the retirement right for all members of the National Teachers' Pension Regime. For further elaboration, one may cite the resolution of this Chamber number 1925-91 of twelve o'clock on September twenty-seventh, nineteen ninety-one, in which it was stated:

"1) Nature of the contribution to the regime: The first aspect being consulted is to elucidate whether or not the contributions established in this article of the bill are a tax. The object of this analysis, the pension and retirement regime, corresponds to the modality called contributory, in which a fund is constituted with the contributions of the workers, the employers or bosses, and the State to cover the cost of the benefits, once the worker retires. It corresponds to the Law to define, in accordance with the special characteristics of each pension or retirement system, the amount of the contributions corresponding to each of the three parties. As indicated in the consultation, the Supreme Court of Justice, in a resolution of three o'clock in the afternoon on August 12, 1987, declared unfounded the unconstitutionality action filed against the power of the Costa Rican Social Security Fund to determine the quotas and benefits of social insurance. This Chamber shares what was expressed therein and finds no reason whatsoever to vary that criterion, which it makes its own, declaring that the contribution referred to in article 12 of the bill, by its nature and effects, is not a tax, as has been pointed out by the most qualified constitutional jurisprudence and doctrine." Also, in judgment number 1341-93 of ten hours thirty minutes on March twenty-ninth, nineteen ninety-three, the question was heard again and the criterion issued on the matter was reiterated, stating the following:

VII.- CONTRIBUTION TO THE RETIREMENT AND PENSION FUND AND CONFISCATION.- It is also alleged, in the various retirement regimes, that requiring the beneficiaries thereof to contribute to the Fund is a violation of fundamental rights, because it implies granting retroactive effect to Law 7268 or 7302, as the case may be, and, ultimately, that the measure is confiscatory. This Chamber, through Vote No. 1925-91 of 12:00 o'clock on September 27, 1991, stated that the contributions collected pursuant to article 12 of Law 7268 do not constitute a tax, because the regime is structured according to the modality called contributory, in which a fund is constituted with the contributions of the workers and beneficiaries, the employers or bosses, and the State, to cover the cost of the benefits; and it corresponds to the Law to define, in accordance with the special characteristics of each pension or retirement system, the amount of the contributions that each one must make. This criterion was expressed by the Chamber, in the optional Legislative Consultation, during the approval process of Law 7268 and in which article 12 specifically was consulted. The Chamber pointed out that the contribution is the payment of a legal obligation, an essential condition for the existence of the regime itself, and that its basis is the strengthening of the Fund, for the protection and benefit of the contributors themselves. The setting of the contribution, within the limits indicated by the same Law, must obey technical, actuarial criteria, to define the real cost of the system, in such a way that "the only way in which the titular subjects of a pension or retirement can enjoy it fully is by covering the proportional cost that corresponds to them of the total system" (Cf. indicated ruling) and the reason for the law is thus appropriate to the Christian principle of social justice (Art. 74 of the Political Constitution) and proportionate to the duty to contribute to the extent of the benefit obtained. Under that same point of view, it was concluded that the contribution is not confiscatory. The Chamber finds no reasons to modify the expressed criterion and, as far as this aspect of the amparo action is concerned, it is appropriate to declare it unfounded, maintaining its jurisprudence (Article 9 of the Law of Constitutional Jurisdiction)." Based on the foregoing, the special, solidarity, and redistributive contribution challenged in this unconstitutionality action must be understood as a constitutionally valid limitation on the right to retirement, arising from the social nature of that right, and therefore it is not unconstitutional in itself, nor in relation to the objectives pursued by its creation.

XLVI.-. Drafted by Justice Hernández López. Regarding the creation of the special, solidarity, and redistributive contribution as a power of the Legislative Branch.- The plaintiffs argue that, in accordance with the provisions of article 121 subsection 13 of the Political Constitution, the Legislative Assembly lacks the competence to create special, solidarity, and redistributive contributions in favor of a specific fund, given that said subsection indicates "to establish national taxes and contributions," recalling that the legislator's freedom of configuration is limited by the Law of the Constitution. Notwithstanding the foregoing, the Chamber considers that they are not correct in this claim because, as stated, the special, solidarity, and redistributive contribution is not configured as a tax, but rather as a parafiscal charge (carga parafiscal), founded on the social nature of the retirement right, which is inscribed within the principles that make up the Social State of Law enshrined in Article 50 of the Constitution, for which reason it is constitutionally valid, and furthermore because, as stated, it is invested with an indisputable social nature protected by the State through the adoption of measures necessary for the effective realization of the social right to which it is directed, for which reason its imposition is valid precisely to ensure the survival and the effective exercise of the retirement right for all workers of the Judicial Branch.

Likewise, it must be recalled that, for the Chamber, measures such as the special, solidarity, and redistributive contribution—as contributions to social security—are parafiscal contributions (contribuciones parafiscales), imposed in the exercise of a power of imperium of the State for the fulfillment of social or economic purposes and which can only be created through a formal law.

On the subject of the parafiscal contribution, constitutional jurisprudence, following doctrine, has considered that parafiscal contributions are figures that belong to general taxation. By way of example, see judgments 4785-93 and 6478-96. In this last case, the following was established:

"II.- On the merits: the plaintiff challenges the employer pecuniary obligation established by article 5 of the Organic Law of the Banco Popular y de Desarrollo Comunal, which is transcribed below, in the pertinent part:

'Article 5º.- The Capitalized Labor Fund shall be formed by:

• a)A contribution of 1/2% monthly on the remunerations, whether salaries or wages, that must be paid by private entrepreneurs, the Branches of the State, and all public institutions; and (...)', alleging violation of the right to private property and freedom of commerce. Regarding the alleged harms, it must be recalled that the amount charged to employers to constitute part of the obligatory savings of their employees consists of a parafiscal contribution, in the terms and with the consequences that this Court has defined:

"This special legal configuration necessarily implies that the contributions, both those of the producers and those of third parties, including the State, which make up the Fund (subsection a) article 2° idem), are true contributions with clear economic and social purposes, known in the doctrine of Tax Law as 'parafiscal contributions', which are imposed by the State but do not appear in the general budget of income and expenses, which is why they receive the aforementioned denomination. The same doctrine of Financial Law defines the figure as 'tributes established in favor of public or semi-public, economic or social entities, to ensure their autonomous financing'. This means, therefore, that the parafiscal contribution does not constitute a figure distinct from general taxation.(...)" In all the cases of this type of contribution analyzed by constitutional jurisprudence, we find a common denominator, which is that we are facing a contribution that the State coercively imposes to achieve a specific economic or social end for a group of people who have common interests (farmers, professionals, cooperative members, workers, etc.).

Now then, the protection of article 34 of the Fundamental Charter is not affected by the creation of the challenged solidarity contribution, insofar as it does not govern retroactively, but rather from the effective date of the law that creates it, a circumstance that it shares with taxes in general.

The fact that the Legislative Assembly created a special tribute is invoked as a violation, when, in accordance with numeral 121, subsection 13, of the Fundamental Charter, this constitutional body is only attributed the power to establish national taxes and approve municipal ones. This grievance must be rejected for several reasons. First, what is created in this case is a parafiscal contribution, that is, a tribute that is destined for an economic and social purpose, in this case to cover the administrative expenses of the Board that is created, which constitutionally and doctrinally is more than justified. Secondly, it is logical that if a group of workers has a special retirement and pension regime, forming a fund separate from the general regime—the disability, old age, and death regime administered by the Costa Rican Social Security Fund—it is reasonable and proportional that active workers, retirees, and pensioners contribute to the maintenance of the body whose competence is its administration. Finally, if the Legislative Assembly has the power to create taxes with general scope, this does not prevent it from creating parafiscal contributions, when objective and reasonable motives exist for their creation.

XLVII. Drafted by Justice Hernández López. The special, solidarity, and redistributive contribution and the claim of double taxation for the same purpose.- The plaintiffs argue that the special, solidarity, and redistributive contribution created in favor of the Judicial Branch Pension and Retirement Fund implies for the judicial servant, but also for the judicial retiree or pensioner, a double taxation because, in addition to being obliged to continue contributing 13% of their income to the fund, they are now also obliged to contribute between 35% and 55%, which they consider unconstitutional. The Attorney General's Office of the Republic considers that there is no double taxation in this case, because a distinction must be made between the contribution to the fund imposed on all beneficiaries of the Judicial Branch Pension and Retirement Regime, and the so-called special, solidarity, and redistributive contribution imposed only on retirees and pensioners who receive economic benefits that exceed the established cap of ten times the base salary of the lowest paid position in the Judicial Branch; a contribution that is also proportional and progressive, and has a different nature from that of the regular contribution, so it is not considered contrary to the Political Constitution. The Vice President of the Supreme Court of Justice did not rule on the specific point but—as reviewed above—maintains the unconstitutionality of the special contribution as such, understanding that there is already a high burden on retirees and pensioners who must continue contributing 13 percent of the gross retirement or pension amount. For the Court, the figure of the special, solidarity, and redistributive contribution is not constitutionally configured as a double taxation, because in its original design (prior to the reform operated by Law number 9796) it addresses a purpose separate from that pursued by the general contribution imposed on all beneficiaries of the Judicial Branch Pension and Retirement Regime to achieve its sustainability and normal functioning. Unlike this general contribution, the Court is clear that the cited norm 236 bis sought to levy the sums exceeding the maximum retirement or pension cap to be paid by the regime, set by article 225 of the Organic Law of the Judicial Branch at 10 times the base salary of the lowest paid position in the Judicial Branch, in the understanding that such excesses occurred in a finite and determinable group of pensions and retirements granted according to the rules of the previous regime (whether being in course of payment or those declared but suspended in their enjoyment) and, therefore, were clearly temporary in their application and not supportable with the contribution scheme established for the new design. Thus, the levy constituted in the questioned article 236 bis to tax the excesses was required, but not to contribute to the sustainability of the normal budgeted outflows in the new regime, but rather to avoid the imbalance caused by the Fund's legal duty to attend to certain outflows inherited from the previous regime and exorbitant to the new design. Under this criterion, then, there is no double taxation from a constitutional perspective, because the purpose of the two levies is clearly differentiated, the 13 percent contribution being a permanent charge with the purpose of financially sustaining the fund and ensuring its benefits, while the special and solidarity contribution of article 236 bis is specific and temporary in its own conception (at least before the reform operated by 9796) and was aimed at mitigating the economic impact of assuming the burden of the retirements and pensions from the previous regime, both those that are in the process of being paid and those already declared at the time but pending their effective enjoyment by the beneficiaries. At this point, the Court repeats the caveat that it knows of and is clear about the existence of and the changes operated with the issuance of the already cited Law 9796, and that what is set forth here is valid for the original wording of norm 236 bis of the Organic Law of the Judicial Branch and for the objections that the plaintiffs made with respect to said text.

It is also not superfluous to likewise recall that the power to legislate in general and in tax matters in particular is not limited by the existence or preparation of technical studies; one cannot then pretend that the legislator must have a specific technical study as a condition to exercise its discretionary power in this matter, since that is contrary to the nature and purposes of the legislative body, as designed in our Political Constitution. In the case under study, the burden imposed has—as has been analyzed—a valid purpose, it is directed at taxing an indisputable economic capacity, and it is progressive in its design. Furthermore, it only becomes confiscatory when it exceeds 50% of the charges that a person must bear on their pension or retirement, as explained supra.

In conclusion, the Court considers that article 236 bis of the Organic Law of the Judicial Branch does not configure a constitutionally prohibited case of double taxation.

XLVIII. Drafted by Justice Araya García. Regarding the claim of lack of reasonableness and proportionality of the special, solidarity, and redistributive contribution established in article 236 bis of the Organic Law of the Judicial Branch.- The plaintiffs claim that the special, solidarity, and redistributive contribution violates the principles of reasonableness and proportionality because it broadly affects the sums that Judicial Branch Pension and Retirement Regime retirees ultimately receive, seeing their payments reduced not only by the 13 percent contribution to the Fund but also by percentages from 35 to 55 percent on excess amounts, without there being any reason or justification for it and solely with the purpose of preventing persons who earned their right to receive a high pension from receiving such sums, which are considered luxurious without being so in any way.

XLIX.- Drafted by Justice Araya García. From the reports received on this aspect, it can be extracted that the Attorney General's Office of the Republic points out that, in light of the validity that the Chamber has given to the existence of special contributions imposed on pensioners of certain regimes, it is clear that nothing opposes, within the constitutional framework, the legislator imposing a contribution on the members of the Judicial Branch Pension and Retirement Regime, provided that this contribution is progressive and proportional. The Vice President of the Supreme Court of Justice reported that, also in this aspect, the Court considered said contribution unconstitutional because it is a tax burden that had to respect constitutional principles such as legal reserve, proportionality, economic capacity, non-confiscatory nature, among others; further pointing out that a respectful request was made to the Legislative Branch to take special care with the reductions imposed so that they do not become confiscatory, since, in addition to that solidarity contribution, the ordinary retirement was being set at 85%—so indicated the bill at that time—, to which reductions such as the contribution to the Fund of 15%—as indicated by the bill—, 5% for health insurance, 15% for income tax, and, when adding up all these items, the retired person almost reached 50% less in relation to what they earned while active in the workforce, without taking into account also that the calculation was not made at that time based on the current salary but with a proration of the last 20 years of work. The representative of the Judicial Branch further added that this situation was no stranger to the retirements and pensions already granted and being enjoyed, since these have levies ranging from 31% to 35% of the total right, which, added to the lowest percentage of the solidarity quota of 35%, totaled 60% which could be confiscatory, disproportionate, and ultimately, contrary to constitutional principles.

L.- Drafted by Justice Araya García. To address this claim, the Court refers to what was said in previous recitals regarding the nature and purpose of the special, solidarity, and redistributive contribution, according to the original design of article 236 bis of the Organic Law of the Judicial Branch, and recalls the fact that it is a charge for those retirement and pension payments elevated to the new system put into operation with the reform. It also especially stresses that regarding the maximum ceiling of deductions that the plaintiffs challenge as a key element for the lack of reasonableness and proportionality in the special contribution, such question was defined supra, by majority, in line with what was said in judgment number 2020-19274 cited above, in that the percentage of legal deductions—in cases where they are constitutionally appropriate—cannot exceed 50 percent of the gross pension amount. In addition to the foregoing, and in view of the fact that in the claim against the reasonableness and proportionality of the special contribution, the concept of the "last salary" or the "income level at the moment of retirement" is used as a parameter, this Court must reaffirm what it has expressed regarding the insufficiency of the actions filed in constitutionally justifying the choice of such parameter to contrast the reductions.

LI.- Drafted by Justice Araya García. Having stated the foregoing, it is appropriate then to analyze whether the structure of the reductions in itself generates any unreasonableness or disproportionality of constitutional magnitude that must be corrected by this Court, taking into account that, as has been sustained by this Chamber, in this type of discussions about the amounts to be received, what is at stake is not the constitutional right to receive a retirement or a pension, since the latter does not consist of the right to receive a specific amount of money, and therefore the amounts to be paid can be adjusted according to the State's financial possibilities and the social security designs, provided that the dignity of the person is not affected nor is the possibility of enjoying their other fundamental rights and, in general, of leading a dignified life impeded. In principle, the observation is made that this special charge, according to the design discussed in the actions, sought to levy the excesses over the cap set in article 225 of the Organic Law of the Judicial Branch, namely, ten times the minimum salary paid in the Judicial Branch, which was established for the year 2020 at 433,800 colones. In this way, the application of the special, solidarity, and redistributive contribution would have begun to be deducted on excesses of payments exceeding 4,330,800 colones, thus fulfilling the proposed purpose of balancing, with extraordinary income, the equally extraordinary expenses that the fund would have to face; this necessity was clearly set forth in the study and technical proposal used as a basis for the legislation by the Legislative Assembly, as can be seen in folio 1984 of the legislative file that gathers the summary tables of the four regulatory frameworks proposed by the IICE and which explain—in the paragraph on additional income—the necessity of a solidarity contribution for those payments above the proposed cap and it was clarified that it was a single percentage. On the other hand, the necessity and suitability of said measure become even more apparent when it is verified that the Assembly excluded from the final text the sums corresponding to abandoned judicial deposits that were added in the technical proposal as additional resources in the cited recommended regulatory frameworks. One must also take into account that what was approved was a progressive scale that, in this revenue-collection matter, is much more protective for those affected, with which—in the Chamber's opinion—the requirement of proportionality in a strict sense is satisfied. The plaintiffs insist on the fact that the reductions could reach such a magnitude as to deprive retirees and pensioners of the possibility of living a dignified life, but the truth is that, in this aspect, the arguments set forth in judgment 2020-19274 are fully applicable, which considered, by majority, that the reduction of retirement amounts by up to 50 percent is not in itself unconstitutional; rather, the interested parties must demonstrate that the remaining sums actually received are insufficient to meet their basic needs as older persons and to maintain a standard of living that can objectively be considered dignified. In the specific case, and with the original cap indicated above, the recipients of the lowest retirements or pensions within the group affected by this special, solidarity, and redistributive contribution, would have to receive 50 percent of the gross amount; that is, in the worst-case reduction scenario for them due to increases in legal contributions of any type, the minimum they would receive would be 2,150,000 colones. It was incumbent upon the plaintiffs to clearly demonstrate that said sum is generally insufficient to appropriately cover the average needs of a retired or pensioned person in our country. One must take into account, furthermore, that, in accordance with the social security system derived from the validity of the Worker Protection Law, retirees will have additional sums derived from their funds in the other two pillars. From what has been set forth, it is concluded that there is also no vice of unconstitutionality in the original design of the special, solidarity, and redistributive contribution contained in the original text of article 236 bis of the Organic Law of the Judicial Branch.

On the other hand, some plaintiffs question that, to finance the Board of Administration of the Judicial Branch Pension and Retirement Fund, a deduction of five per thousand of the salaries earned by judicial servants, as well as from the retirements and pensions covered by the Fund, was created, considering that said Board and the charge it entails are unjustifiable, as well as harmful to the fundamental rights of the Fund's members. In relation to this topic, it must be said that under the prior Law 7333, the Fund did not need to incur any administration expenses because that work was carried out by the Superior Council and the Full Court, which did not generate any cost for its members; however, due to several questions that arose in relation to this point from the Comptroller General of the Republic and the Superintendency of Pensions, during the sessions of the Special Commission that analyzed bill No. 19922—which culminated in the enactment of Law No. 9544—, the representatives of both institutions stated to the legislators the need for the Judicial Branch Fund to have its own administration mechanism and not be linked to the hierarchical authorities of the Judicial Branch or the Superior Council. Thus, in an appearance before that Commission on November 16, 2016, the Comptroller General of the Republic stated that the Judicial Branch needed a body to administer the fund, expressing concern about how it would be financed, pointing out that it was an issue that had to be incorporated into any bill under analysis. For her part, in an appearance before said Commission on March 29, 2017, the Superintendent of Pensions stated to the deputies that it was necessary to create a Board to administer the Judicial Branch Pension and Retirement Fund because it is a matter of good corporate governance practices, independent of any technical study, further affirming that in the Judicial Branch there was an overload on the Fund's Manager because they were, at the same time, Head of the Judicial Branch and Head of the Superior Council, making it necessary to create that body, suggesting not only that the model of the National Teachers' Pension Board (JUPEMA) be used, but also that it be financed with a deduction of five per thousand of the salaries earned by judicial servants, as well as from the retirements and pensions covered by the Fund; a suggestion that had already been previously made by that Superintendency in similar terms, as can be seen in folio 266 of the legislative file. The deputies decide to follow the recommendation to create the Board based on the JUPEMA model and adopt, as a reference, article 106 of Law No. 2248, which is the National Teachers' Pensions and Retirements Law, which provides:

"Article 106.- Financing.

To fulfill its functions, the Board shall receive a commission for administrative expenses, which shall arise from deducting, from each of its insured members, five per thousand (5 x 1000) of the salaries and pensions of the Regime under its charge.

With this deduction, a Special Administration Fund shall be constituted, which must be kept, both accounting-wise and physically, separate from the Capitalization Fund.

This special fund shall be administered with the utmost prudence and frugality." Thus, as is clearly evident from the foregoing, the creation of the Administrative Board of the Judicial Branch Retirement and Pension Fund in the terms set forth in Article 239 of the challenged Law 9544 was inspired by a similar existing model in the country, meaning it is not an experimental creation of the legislature but actually has a justification that is valid and reasonable for this Court and, therefore, the arguments made in this regard by some plaintiffs must be rejected.

The established payment is not contrary to the Law of the Constitution, since, as expressed supra, said parafiscal contribution is among those tax burdens that cannot exceed 50% of the gross amount of the retirements and pensions to be paid. Stated differently, what is relevant is that, as indicated supra, the sum of the total burdens on retirees and pensioners cannot total more than 50% of the pension or retirement. Hence, as long as that vital minimum is maintained for the person, the alleged violation does not occur. Furthermore, it must be taken into account that this five per thousand constitutes the source of financing for the Board created for the Administration of the special regime, all of which constitutes a benefit for the persons belonging to the special regime, since, to the extent that said special regime is administered with technical-actuarial criteria, its sustainability over time is guaranteed. For this, it is necessary to finance the expenses that the BOARD must incur. Nor are specific data provided demonstrating that the administration of pensions could be done with a lesser amount, which is indispensable for determining whether the provision exceeds the principles of reasonableness and proportionality, for which reason the argument cannot be accepted in the manner in which it has been presented, but this item must indeed be weighed together with the other burdens, as indicated.

LII.- Authored by Magistrate Hernández López. Regarding the acquired rights and consolidated legal situations of judicial retirees and pensioners in relation to the special, solidarity, and redistributive contribution. Some plaintiffs allege that the special, solidarity, and redistributive contribution also constitutes a violation of Article 34 of the Political Constitution. They assert that, in accordance with the analysis of the constituent process, acquired patrimonial rights or consolidated legal situations, by virtue of the application of a law in force, cannot be undermined by a subsequent law because the consolidated legal situation has become included within the person’s patrimony, and touching it is to breach the constitutional principle of patrimonial intangibility enshrined in Article 45 of the Political Constitution. In light of the above, they allege that it is precisely that constitutional prohibition which has been breached in Law Number 9544, as its provisions affect consolidated legal situations, to the detriment of the Judicial Branch's retirees and pensioners, their acquired patrimonial rights (pensions and retirements in the process of payment or previously declared) and consolidated legal situations in the form of pension and retirement benefits with constitutional protection under Articles 73 and 74. Another group of plaintiffs assert that acquired rights and consolidated legal situations are also violated for those active employees who, for many years, have been contributing to the Judicial Branch Retirement and Pension Regime and now, when they were closer to retiring, the rules of the game are abruptly changed to the extreme that, to obtain the right to retirement, they will now have to work many more years, reach a greater age, and in return receive a lesser retirement benefit. The plaintiffs also state that the introduction of this new item to be deducted from the pensions and retirements of judicial employees implies a novel change in conditions that, according to their claims, causes a considerable decrease in the net amount to be received by the beneficiaries, without taking into account that these are persons in a condition of vulnerability.

LIII.- Continues authored by Magistrate Hernández López. The Office of the Attorney General of the Republic rejects the existence of any injury to Article 34 of the Political Constitution. It asserts that the clear jurisprudence of this Chamber is conclusive regarding the non-existence of a fundamental right to a determined fixed benefit and that it can be varied over time if circumstances require it and provided the right to retirement is respected, citing rulings 1993-2379 and 1993-3250 which analyzed special contributions imposed within the retirement and pension regime of the National Teachers' System. For its part, the Supreme Court of Justice pronounced generally on the special, solidarity, and redistributive contribution in the terms already indicated above, in the sense that the pension must satisfy the essential needs of persons in their old age stage, thus the amount must be set taking into consideration the cost of living and the social situation during the period of professional activity, that is, that the standard of living the working person had during their active professional life must be respected. Meanwhile, the President of the Legislative Assembly stated that regarding the expectation of rights concerning the pension or retirement regime, they must abide by the legislation in force and constitutional precedents, it being understood that the modification of a specific regime is feasible and does not per se imply a constitutional violation.

LIV. Continues authored by Magistrate Hernández López. Faced with the plaintiffs’ argument, the Chamber considers that no weighty legal criteria have been provided that make it necessary to reconsider its extensive jurisprudence in which it has held the non-existence of an affectation to Article 34 of the Constitution with the establishment of special contributions such as the one created in Law Number 9544. As the Attorney General’s Office rightly maintains, Law 9544 is not eliminating the right to retirement or pension for persons for whom it has already been declared and who are enjoying it, and in accordance with settled jurisprudence, it also cannot be said that these persons have an acquired right to the amount of the retirement benefit they are receiving. On that point, the Court has been conclusive in that there is no right that the benefit derived from the right to a pension be for a specific amount (see, in that sense, ruling 2020-19274 itself, just mentioned). Nor is it a matter of the regulatory provisions of the retirement system being petrified, because the Chamber has also admitted that it is valid that, as necessary and always complying with respect for fundamental rights, the modifications required to adjust the system be made. Thus, it is not considered that the mere fact that the obligation to contribute a special, solidarity, and redistributive contribution in this case was decreed is injuring any acquired right of the retirees or pensioners in the terms claimed. Nor are the legal situations of persons for whom the right has not yet been declared affected, since it must be recalled that the so-called right of membership that this Court has identified jurisprudentially gives rise, in favor of the contributors, to a simple expectation of obtaining the right to retirement, as they have not generated consolidated situations or acquired rights at the time the new law enters into force, so the latter governs said situation in the state in which it finds it, it being clear then that the provision (Constitutional Article 34) refers to subjective legal situations already consolidated, not to those that constitute mere expectations, since these, as the right has not been perfected, are indisputably subject to the future regulations introduced by law. Consequently, regarding this point, the action is declared without merit.

LV.- Authored by Magistrate Hernández López. Regarding the special, solidarity, and redistributive contribution in relation to the rights of older adults. The plaintiffs consider that the integrated application of provisions 236 and 236 bis of the Organic Law of the Judicial Branch to the retired older adults and beneficiaries of the Judicial Branch Retirement and Pension Regime is abusive and arbitrary because it aggravates their socioeconomic conditions and has implied an abrupt decrease in their income, which violates national and international regulations for the protection of older adults, their right to quality of life, and to enjoy a dignified old age. They consider that the constitutional rights enshrined in Articles 50, 51, and 73 of the Political Constitution are violated to the detriment of older adults, despite the fact that numeral 51 of the Constitution has established special protection for them. They affirm that such special protection was embodied, for example, in the Integral Law for the Older Adult, Number 7935, whose first article establishes as its objective guaranteeing older adults equality of opportunities and a dignified life in all spheres, as well as promoting the integral and inter-institutional care of older adults by public and private entities, and also ensuring the proper functioning of programs and services aimed at this population, guaranteeing the protection and social security of older adults. They also add the existence of international instruments that reaffirm that special protection, such as the Protocol of San Salvador, the San José Charter on the Rights of Older Persons in Latin America and the Caribbean, and, recently, the Inter-American Convention on Protecting the Human Rights of Older Persons.

LVI.- Continues authored by Magistrate Hernández López. In their reports on this point, the intervenors in this proceeding stated the following: the Supreme Court of Justice reiterated the need for the protection of this group based on the content of ILO Recommendation No. 43, in that it is necessary to guarantee workers an old age without deprivation, that the pension should cover essential needs, and that the amount should be set taking into account the "cost of living and the social situation during the period of professional activity." The Office of the Attorney General of the Republic, in its response, does not specifically refer to this claim but subsumes it into its opinion regarding the validity of the special, solidarity, and redistributive contribution, emphasizing that it involves additional charges only for those retirees and pensioners who receive high sums, with the aim of redistributing the burden for the maintenance of the fund. The Legislative Assembly also did not present concrete arguments on this point and framed them within its opinion on the special, solidarity, and redistributive contribution.

LVII.- Continues authored by Magistrate Hernández López. This Court addresses this claim by recalling that, as the plaintiffs indicate, the protection of older adults forms part of the set of principles that shape a social state of law, such as what our Political Constitution intended to establish. In this line, it has been indicated, for example, in Ruling Number 2007-13584 of 3:15 p.m. on September 19, 2007:

"I.- (…) For its part, this Constitutional Court has indicated that, in accordance with said provision, the Costa Rican State has a dual duty of, first, creating an adequate regulatory framework in order to provide special protection for those groups of persons, which constitutes a true fundamental right. Second, it is incumbent upon it to respect and ensure respect for such rights through the corresponding administrative agencies and courts of justice. Likewise, it has been concluded that, from the consecration of the Social State of Law derivable from the provisions contained in Articles 50 and following of the Fundamental Charter, it is possible to extract obligations for public authorities, precisely in the pursuit of the greatest well-being of 'all the inhabitants of the country,' among whom the Law of the Constitution specially points to children, mothers, the elderly, and persons in a state of destitution. Thus, the Social State, consecrated in our Political Constitution, develops in its normative content a relevant and obligatory protection and state intervention in social matters in favor of those especially vulnerable sectors of the population that, due to their condition, so require; such is the case—undoubtedly—of the elderly, senior citizens, or older adults" To the above must be added the international obligations set forth in the Inter-American Convention on Protecting the Human Rights of Older Persons, ratified by Costa Rica through Law No. 9394 of September 8, 2016, through which it is sought to ensure the recognition and full enjoyment of the exercise, under conditions of equality, of all human rights and fundamental freedoms of older adults (see in this sense Ruling Number 2018-006290 of 9:20 a.m. on April 20, 2018). Said regulation provides a legal framework of higher rank from which the State is responsible for taking concrete actions to protect this sector of the population, and the Chamber, in its jurisprudence, has protected the interests and rights of older adults whom it has determined to be in a situation of special vulnerability, which is in accordance with the Judicial Branch's policy of prioritizing the attention of this group of the population and providing it services with special consideration, as well as preferential treatment (see, in a similar sense, among others, Ruling Number 2007-013584 of 3:15 p.m. on September 19, 2007).

LVIII.- Authored by Magistrate Araya García. In analyzing the situation the plaintiffs raise, the Court considers that the design of the special, solidarity, and redistributive contribution contemplated in Article 236 bis of the Organic Law of the Judicial Branch does not generate any affectation to the fundamental rights of older persons insofar as a specific percentage is safeguarded as a hard core of the pension that cannot be affected, according to what has been expressed by the majority, by a percentage greater than 50%. In previous recitals, the alleged injuries to the normative set of fundamental rights have been dismissed, as it has been indicated that the regulations established in Law Number 9544 to provide sustainability to the Judicial Branch Retirement and Pension Regime do not infringe upon the right to retirement; similarly, when analyzing the reasonableness and proportionality of the special contribution, it was concluded that the levy it fixes is reasonable and proportionate given that it operates only for a group of persons who, at the time the law was enacted, received sums higher than the ceiling set for the appropriate sustainability of the fund. Equally, that levy is progressive so that, within the taxed group, those receiving the highest sums must contribute more to the fund's sustainability. It was also explained above that the specific amounts that have been the object of the special levy, given their high magnitude, leave in the hands of the affected retirees and pensioners a remaining sum regarding which the plaintiffs have not been able to demonstrate, not even indicatively, its manifest insufficiency to provide economic support for a dignified life and the enjoyment of the human rights that comprise the assets of older persons, even more so taking into account that precisely in attention to constitutional and conventional obligations, the State—in a broad sense—has been building a support structure in various spheres to ensure precisely that dignity in old age, not only for retirees but for all older persons. In conclusion, as stated, no concrete affectation has been demonstrated to the possibilities of effective enjoyment of fundamental rights and the possibility of living a dignified life, recognized in favor of older persons by normative instruments of varying rank and by the Chamber's jurisprudence, therefore, accordingly, the action must be declared without merit on this point as well.

D. CLAIMS RELATED TO CHAPTER IV TITLED "THE ADMINISTRATION" OF TITLE IX "RETIREMENT AND PENSION REGIME OF THE JUDICIAL BRANCH" OF THE ORGANIC LAW OF THE JUDICIAL BRANCH LIX.- Authored by Magistrate Hernández López. General observations on Chapter IV called "the administration" following the reforms effected by Law Number 9544. Law Number 9544 reformed Chapter IV of Title IX of the Organic Law of the Judicial Branch, which now consists of 5 articles ranging from 239 to 242, including a 240 bis. Said regulation entrusts the administration of the Judicial Branch Retirement and Pension Fund to an Administrative Board of the Fund, which will be responsible for carrying out that function, as well as others granted to it in this law. In this chapter, the functions, powers, and obligations of this new body are determined, as well as matters relating to the role that the Superintendence of Pensions (SUPEN) and the National Council for the Supervision of the Financial System (CONASSIF) will exercise in relation to this body. Regarding this chapter, the plaintiffs raise various aspects they consider injurious to the Law of the Constitution and which are specifically focused on Article 239 as it relates to the creation of the Administrative Board. As for the majority of such claims, this Court refers to what was said when analyzing the objections related to the legislative procedure, since they concern an alleged infringement of the constitutional competencies and the autonomy of the Supreme Court of Justice as one of the supreme powers of the Republic. One substantive issue remains, however, which is analyzed next.

LX.- Authored by Magistrate Hernández López. Regarding the claim of infringement of the principle of legal reserve in some attributions of the Administrative Board of the Judicial Branch Retirement and Pension Fund. The plaintiffs argue that Article 239 of the Organic Law of the Judicial Branch, reformed by Law Number 9544, sets competencies for the Administrative Board of the Fund that violate the principle of legal reserve. The relevant text of that provision states:

"Article 239- The Administrative Board of the Judicial Branch Retirement and Pension Fund is created as a body of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the faculties and attributions granted to it by law.

(…)

Based on the results of actuarial studies, and with authorization from the Superintendence of Pensions, the Administrative Board may modify the initial parameters established in this law regarding the eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and of the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime." (underlining not in the original) It is claimed that, in view of the normative text, the Board may make decisions without legal parameters and that these may generate direct affectations to the exercise of fundamental rights, such that there is a violation of the principle of legal reserve. In its report, the Attorney General's Office indicates that, indeed, the regime for the exercise of fundamental rights can only be modified by the Legislative Assembly in application of the cited principle of legal reserve. It points out that the cited provision admits an interpretation in conformity with the Political Constitution in the sense that the changes the Board can make are those carried out within the parameters that have been established by the legislator. The Supreme Court of Justice did not make a specific pronouncement on the subject but indicated that the Board is an atypical figure that subjects the Supreme Court to an adjustment in its functioning to ensure its proper operation.

LXI.- Continues authored by Magistrate Hernández López. On this point, this Chamber notes that indeed the principle of legal reserve must be respected when the State intends to set a limitation on the fundamental rights recognized in favor of persons. This principle inherently has a fundamental rank for the constitution of a democratic regime, as has been widely recognized by the Court's jurisprudence (see, among many, Rulings Number 2002-01764 of 2:37 p.m. on February 20, 2002, Number 2008-017305 of 2:59 p.m. on November 19, 2008, and Number 2009-013605 of 2:56 p.m. on August 26, 2009). This Court has also indicated that the principle of legal reserve not only guarantees freedom vis-à-vis other citizens but constitutes a guarantee of control against public power, since, precisely, the regulatory regulation of an activity that impacts a multiplicity of fundamental rights requires a normative framework of legal rank, such that fundamental rights cannot be removed from the public debate generated in the Legislative Assembly, the Public Administration lacking legitimacy to regulate the exercise of fundamental rights, which is set forth in the General Law of Public Administration when it indicates that "The legal regime of fundamental rights shall be reserved to Law, without prejudice to the corresponding Executive Regulations." When reviewing against that legal framework the powers that have been granted in the discussed paragraph of Article 239 of the Organic Law of the Judicial Branch, the Chamber considers that what is provided therein contravenes the principle of legal reserve and is therefore unconstitutional. It should be noted that in addition to its function of administering the Judicial Branch Retirement and Pension Fund, this Board will have the power to modify practically all the parameters established in the Law, namely: the eligibility requirements, benefit profile, as well as the contribution percentages of judicial employees and of the retirements and pensions provided for in the law. Now, there is no discussion in this proceeding regarding the fact that the described activities directly affect the way in which the beneficiaries enjoy their constitutional right to retirement. In particular, the Chamber finds unacceptable the modification, by way of a Board agreement, of the eligibility requirements and the benefit profile, which undoubtedly form a fundamental part of that right to retirement that is sought to be guaranteed with the legislative intervention through the reform. Furthermore, no elaboration is needed in this case on the validity and possibility that the legislator may delegate to the Board—through the establishment of margins—the modification of the essential elements of the regime, because what is true and evident is that the challenged Law Number 9544 did not provide for such a mechanism in the legal text; on the contrary, matters such as the eligibility conditions, the benefit profile, and the burdens for the Fund's participants were established with precision and without options, so the fact that in the same legislative reform the Assembly provided for the possibility of their modification without references to minimums or maximums and attending only to the Board's own assessments regarding actuarial studies is openly unconstitutional. It cannot be forgotten that—as explained—such legislative determinations modulate the exercise of a constitutional right such as the right to retirement for working persons, meaning that an unrestricted delegation to an administrative body so that—if necessary—it can render existing legal provisions ineffective, is alien to the powers of the Legislative Assembly and disregards its constitutional obligations derived from the due respect for the principle of legal reserve. For the foregoing, the position of the Attorney General's Office proposing a conforming interpretation is untenable, because in this case there are no margins of determination that have been provided for by the Legislator within which the Board could specify its attributions. The necessary conclusion of the foregoing is that there is a constitutional violation in granting an administrative body the determination of the conditions and modalities for the exercise of their constitutional right to retirement, for which reason the paragraph of Article 239 of the Organic Law of the Judicial Branch that states: "Based on the results of actuarial studies, and with authorization from the Superintendence of Pensions, the Administrative Board may modify the initial parameters established in this law regarding the eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and of the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime" must be eliminated as unconstitutional.

E. CLAIMS RELATED TO THE TRANSITORY PROVISIONS CONTAINED IN LAW NUMBER 9544.

LXII.- Authored by Magistrate Hernández López. Description of the transitory provisions included in Law Number 9544. The reform introduced by Law Number 9544 contains 6 transitory provisions: I and III refer to the deadlines within which, on the one hand, the Administrative Board of the Judicial Branch Retirement and Pension Fund should be integrated, and on the other, the General Regulations of the Judicial Branch Retirement and Pension Regime should be issued. Transitory provision number IV clarifies that the resources from worker, employer, and State contributions that, as of the date Law 9544 entered into force, are being administered by the Superior Council of the Judicial Branch, as well as the returns and other benefits they have produced, will continue to form part of that fund. For its part, Transitory V states that credit operations with resources from the Judicial Branch Retirement and Pension Fund that had been agreed upon by the Superior Council prior to the Law would remain in force until their maturity and would not be subject to renewal. Transitory provisions II and VI are those challenged in this claim of unconstitutionality and will be analyzed below.

LXIII.- Authored by Magistrate Hernández López. Regarding the claim against Transitory II of Law No. 9544.- Transitory provision II of Law Number 9544 stipulates the following:

"TRANSITORY II- For the persons functioning at the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333 Organic Law of the Judicial Branch, of May 5, 1993, and its reforms, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, the present reform shall not be applied to their detriment, and their rights acquired in good faith must be respected at all times. However, they are empowered to request, under the terms provided in Articles 226 and 234 of this law, the return of the worker, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, so that they may transfer to the Disability, Old Age, and Death Pension Regime administered by the Costa Rican Social Security Fund (CCSS), if they so wish." The plaintiffs argue that discriminatory treatment is given to the detriment of judicial employees regarding the treatment of acquired rights compared to the officials of the Supreme Electoral Tribunal who contribute to the Judicial Branch Pension and Retirement Regime. They contrast the different treatment the legislator made in relation to the issue of acquired rights, since, without any objective reason to justify it, a differentiated and advantageous treatment was provided for those employees who, belonging to the Judicial Branch Pension and Retirement Regime, work at the Supreme Electoral Tribunal, since they were declared to have an unrestricted right of membership to that regime, but based on the repealed regulations, regardless of the time it might take them to meet those requirements.

It is argued that the transitional provision is completely discriminatory by distinguishing among the members (afiliados) of the Judicial Branch Retirement and Pension Fund (Régimen de Jubilaciones y Pensiones del Poder Judicial), such that some of them are those who work for the Judicial Branch and others are those who work for the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), but the latter will have greater benefits than the others. In relation to this differentiation, the plaintiffs question the necessity of this difference, therefore requesting that the unconstitutionality of Transitory Provision II of Law No. 9544 be declared for violation of the principle of equality and non-discrimination contained in Article 33 of the Political Constitution (Constitución Política). Regarding this specific aspect, there is no pronouncement from the reporting parties in this action.

LXIV.- Magistrate Hernández López continues writing. The issue raised here was reviewed by the Chamber on the occasion of the optional legislative consultation (consulta legislativa facultativa) presented at the time by members of the Legislative Assembly in relation to the bill that gave rise to Law No. 9544. In judgment 2018-5758, in which a response was given to said consultation, the Chamber stated the following:

“XX.- Regarding Transitory Provision II of the consulted bill. Finally, the consultants believe that Transitory Provision II of the consulted bill is contrary to constitutional numeral 33, insofar as it establishes a privilege for the officials of the Supreme Electoral Tribunal. Said provision states the following:

TRANSITORIO II- The officials of the Supreme Electoral Tribunal referred to in Article 242 of Law No. 7333, Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), of May 5, 1993, and its amendments, who have contributed to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, this reform shall not be applied to their detriment and their acquired rights of good faith shall be respected at all times. However, they are authorized to request, under the terms set forth in Articles 226 and 234 of this law, the return of the worker, state, and employer contributions made to the Judicial Branch Retirement and Pension Fund, so that they may transfer to the Disability, Old Age, and Death Regime (Régimen de Pensiones, Invalidez, Vejez y Muerte), administered by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS), if they so desire.

Prior to analyzing the alleged defect, the Chamber considers it necessary to refer to the concepts of acquired rights and consolidated legal situations. On this matter, in judgment No. 2765-97 of 3:03 p.m. on May 20, 1997, it was provided, in what is relevant, the following:

“The concepts of ‘acquired rights’ and ‘consolidated legal situations’ appear closely related in constitutional doctrine. It is fair to state that, in general terms, the first denotes that consummated circumstance in which a thing –material or immaterial, be it a previously foreign good or a previously non-existent right– has entered (or impacted upon) the patrimonial sphere of the person, such that the person experiences a verifiable advantage or benefit. For its part, the ‘consolidated legal situation’ represents not so much a patrimonial gain, but a state of affairs fully defined in terms of its legal characteristics and its effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not that these effects still endure or not, but that –by virtue of a legal mandate or a judgment that has so declared– a clear and defined rule has already emerged in legal life, connecting a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person’s situation is given by a logical proposition of the type ‘if…, then…M’, that is to say: if the conditioning fact has occurred, then the ‘consolidated legal situation’ implies that, necessarily, the conditioned effect must also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects –making it intangible– the situation of the one who obtained the right or enjoys the situation, for reasons of equity and legal certainty.” Now, from the study of the questioned provision, it is clear that it does not present the alleged defect, because, contrary to what the consultants seem to understand, it does not seek to create a differentiated situation in favor of the officials of the Supreme Electoral Tribunal with respect to the other contributors to the Fund, but solely to protect those rights acquired in good faith. In that sense, the transitory provision does not provide in any way that the reform made to the Judicial Branch Pension and Retirement Regime (Régimen de Pensiones y Jubilaciones del Poder Judicial) is not applicable to the officials to whom it refers, since they will also be affected by it, proof of this being the fact that the article itself grants them the possibility of transferring to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, should they so desire. By virtue of the foregoing, the Chamber dismisses that the questioned numeral grants the servants of the Supreme Electoral Tribunal an acquired right to remain under the current conditions of the Judicial Branch Pension and Retirement Regime, therefore the consultants’ allegation is dismissed.” (2018-5758 of April 12, 2018) This time, those who bring the claim represent a large number of the participants of the Judicial Branch Retirement and Pension Fund and provide reasons and arguments to maintain that, contrary to what the Chamber understood at that time, the text does create a different treatment that merits being reviewed again as it is understood to contravene the principle of equality.

LXV.- Magistrate Hernández López writes. On Transitory Provision II of Law 9544 and the principles of equality and non-discrimination. As a first important element to support this decision, one must keep in mind what Article 242 of the Organic Law of the Judicial Branch No. 7333 provided prior to its reform, since the challenged Transitory Provision II refers to that numeral:

“ARTICLE 242.- The Magistrates of the Supreme Electoral Tribunal and the Director of the Civil Registry who before their election have been lawyer judicial officials, with a service of more than five years, may remain protected under the Retirement and Pension Plan of this Law, and the time they serve in those bodies shall be computed as if it were served in the Judicial Branch. Those officials shall continue contributing in the manner required by Article 236 of this Law. Said Magistrates shall have the same benefits as the Magistrates of the Supreme Court of Justice, and the Director of the Registry, the benefits indicated for judges, under equal circumstances. The State, in those cases, must pay for those officials the quota indicated by subsection 2) of the cited Article 236, on the sum allocated in the general expenditure budget to cover their salaries in the Supreme Electoral Tribunal and in the Civil Registry. This quota shall be deposited as indicated in the referred subsection 2).” The review of the background shows that this provision was included in the general reform carried out in 1993 to the Organic Law of the Judicial Branch and covered an exceptional case for those lawyer judicial officials who, with at least five years of service in the Judicial Branch and contribution to the Judicial Branch retirement and pension regime, were appointed as Magistrates of the Supreme Electoral Tribunal or to the position of Director of the Civil Registry. That exception consisted of opening the option for the aforementioned public servants to remain as participants in the Judicial Branch Retirement and Pension regime –to which they had been contributing for at least five years– provided they continued paying their corresponding quota, and it was established that they would have the same benefits as the Judicial Branch Magistrates and those of a judge for the case of the Director of the Civil Registry. The State was also ordered to budget and deposit the corresponding monies for its contribution, according to the salaries received in the Supreme Electoral Tribunal. It is concluded from that text that whoever opted at that time to remain as participants in the Judicial Branch regime, did so under the same terms and conditions as the other participants, that is, on the one hand, “(t)hose officials shall continue contributing in the manner required by Article 236 of this Law…” in the words of the provision, and on the other, regarding the regime’s benefits, it was ordered that: “Said Magistrates shall have the same benefits as the Magistrates of the Supreme Court of Justice, and the Director of the Registry, the benefits indicated for judges, under equal circumstances” Now, upon the issuance of Law No. 9544, which extensively modified the Judicial Branch Retirement and Pension regime, the Legislative Branch, among other things, increased the burdens on the participants and reduced the benefits to be received, all in favor of the regime’s sustainability. And a Transitory Provision II was also introduced where it keeps open the possibility granted in 1993 for the aforementioned servants to transfer their quotas to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, or to remain as participants in the Judicial Branch regime; however, if they decided to remain as participants in the Judicial Branch Fund, a condition is added that does not exist for the other participants of the Fund and which is that they would have in their favor the fact that: “this reform shall not be applied to their detriment and their acquired rights of good faith shall be respected at all times.” It is on this last point that the plaintiffs find a discriminatory provision, because they maintain that for them, as judicial servants, Transitory Provision VI of Law No. 9544 governs, which defines the situation of active judicial officials who have been contributing to the Fund and in which it is delineated who remains covered by the repealed law (that is, those to whom the new regulation will not be applied to their detriment) and to whom the new regulation will be applied without attenuations:

“TRANSITORIO VI- Judicial servants who meet the requirements to acquire the right to the pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the protection of the provisions established in the aforementioned text.” It is concluded from the above that –for purposes of determining the applicable regulation, two separate categories of active servants participating in the fund were created: one composed of judicial servants who “meet the requirements to acquire the right to the pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law” and who may retire with the requirements of the previous regime, and the other composed of the other judicial servants who do not meet that condition, for whom the application of the new regulation proceeds. However, the interested parties affirm, the servants mentioned in Article 242 of the repealed Law who decide to remain in the Judicial Branch Retirement and Pension regime will receive a different treatment since they were placed in a different third category reflected in the phrase of Transitory Provision II of Law No. 9544: “this reform shall not be applied to their detriment and their acquired rights of good faith shall be respected at all times” LXVI.- Magistrate Hernández López continues writing. In the terms set forth, the Chamber concludes that the provision is not necessarily unconstitutional but it is confusing and, therefore, must be interpreted according to what was established in the Chamber’s established precedent contained in judgment No. 2018-5758, because there the Court understood that there could be no difference in treatment in favor of the servants mentioned in Article 242 of the Organic Law of the Judicial Branch, since:

“…contrary to what the consultants seem to understand, it does not seek to create a differentiated situation in favor of the officials of the Supreme Electoral Tribunal with respect to the other contributors to the Fund, but solely to protect those rights acquired in good faith. In that sense, the transitory provision does not provide in any way that the reform made to the Judicial Branch Pension and Retirement Regime is not applicable to the officials to whom it refers, since they will also be affected by it, proof of this being the fact that the article itself grants them the possibility of transferring to the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, should they so desire.” (Cited Judgment No. 2018-5758) Thus, then, the majority of this Court agrees that the correct interpretation of the phrase “this reform shall not be applied” would lead to the understanding that it refers to persons who have consolidated their right to retirement or pension, but not when the active person has not met the retirement requirements, since the reforms introduced in the challenged law apply in their entirety to the latter. Hence, the persons who fall into this last scenario are in the same conditions as the active workers of the Judicial Branch, and therefore there is no violation of the principle of equality.

Furthermore, it should be noted that the mere mention and reference to acquired rights in the cited Transitory Provision II is not constitutionally illegitimate or contrary to the principle of equality if it is understood that said expression must be comprehended in the context and sense described in the relevant recital (considerando) of judgment 2018-5758, that is to say, that the servants mentioned in the discussed Transitory Provision II enjoy acquired rights as participants in the Judicial Branch Retirement and Pension Fund, but with the same scope and on an equal footing with the other participants who work directly for the Judicial Branch. Therefore, the simple affirmation that the servants mentioned in the disputed Transitory Article II will have their acquired rights respected has not created a different category compared to the other participants of the fund, because by constitutional imperative, all participants without exception, as the case may be and even if it is not expressly stated, must have their acquired rights respected under the terms and conditions that this Court has indicated through its jurisprudence, for pension matters. In that specific sense, the mere mention in the abstract of the respect of acquired rights for one group of participants does not at all entail a real change in their rights and obligations that distinguishes them from the other participants, just as was stated in legislative consultation 2018-5758.

LXVII.- Magistrate Castillo Víquez writes. On the claim against Transitory Provision VI of Law No. 9544. As explained supra, the other transitional provision of Law No. 9544 that the plaintiffs challenge is Transitory Article VI, which establishes:

“TRANSITORIO VI.- Judicial servants who meet the requirements to acquire the right to the pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the protection of the provisions established in the aforementioned text.” The plaintiffs argue that this is a disproportionate and arbitrary provision, and that the fixed 18 months constitute an unreasonable period that the Chamber at some point established and which has now been adopted by the legislator without a technical study to justify it. They believe that consolidated rights and acquired rights are harmed, and they maintain that legal certainty is violated and trust in the system is broken; that it harms people’s expectations and the life plan of those who were close to retiring and harms solidarity, which is a principle related to social security. They also believe that it contradicts Article 224 of the same law, because in that article an acquired right is recognized for servants with 20 or more years of service in the Judicial Branch, while this transitory provision does not recognize that period for workers with more than 20 years of service and, instead, it grants it only to those who have 28 years and 6 months at the time the law enters into force. The Attorney General’s Office (Procuraduría) indicated that the right to enjoy retirement is acquired when all the requirements provided in the regulation are met and before that, what exists is a simple expectation of a right that is not assimilable to a consolidated legal situation. It is affirmed that the Chamber has said that a period of 18 months is sufficient so that the modification of the conditions does not affect the individual who meets the requirements within that period, and the so-called right of belonging (derecho de pertenencia) is nothing more than a simple expectation that exclusively applies to those who manage to reach the requirements within the 18 months. Transitory Provision VI implies that the changes were not untimely or sudden. The Legislative Assembly indicates that, dealing with the expectation of rights concerning a pension or retirement regime, they must abide by the legislation in force and constitutional precedents, understanding that the modification of a specific regime is feasible and does not imply, in itself, a constitutional violation. The granted period meets the required parameters to guarantee the eventual rights of the persons who meet the requirements set forth in the regulation and that, with this, a sudden modification of the norm is not carried out. The Supreme Court of Justice stated that in its responses to the Assembly, it always expressed the need for a gradualness in the implementation of the regulatory change to respect the valid expectations of persons with more years of service.

LXVIII.- Magistrate Castillo Víquez continues writing. The issue of the possible unconstitutionality of the challenged Transitory Provision VI of Law 9544 was also analyzed as part of the response given to the Legislative Assembly on the occasion of the consultation made on what was then Bill No. 19922 for the reform of the Judicial Branch Retirement and Pension regime. In judgment No. 2018-5758, cited many times, the Chamber said:

“XVII.- On the changes in the requirements to obtain the pension right. The consultants consider that Article 224 of the bill harms the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension, in relation to the salary they earned, is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the pension right may do so under the protection of what was established by Law No. 7333. The questioned provisions state the following:” Article 224- Judicial servants with twenty or more years of service in the Judicial Branch may qualify for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (CPI), defined by the National Institute of Statistics and Censuses (Instituto Nacional de Estadística y Censos, INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years.

TRANSITORIO VI- Judicial servants who meet the requirements to acquire the right to the pension as established by the text of Title IX of Law No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the protection of the provisions established in the aforementioned text.

Before entering into an analysis of the substance of the allegation raised, it must be kept in mind that the retirement right constitutes the economic benefit obtained after working and contributing to a specific regime for an established period, and whose purpose is to guarantee a dignified life for the person after they withdraw from the labor market due to age or disability. This right, which derives from constitutional numeral 73, is obtained from the moment in which the person meets all the requirements established by the legislation in force, because at that moment the factual situation that the regulation envisions for granting the benefit occurs. It should be noted that the right to retirement is not unrestricted, since it can be subjected to certain limitations, provided these are established through a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement, when it can be proven that certain situations exist that jeopardize the sustainability of a regime and, therefore, threaten the nature of the system as such. On this matter, in vote No. 2379-96 of 11:06 a.m. on May 17, 1996, the following was established: […]

On the other hand, the Chamber has also held that there is a substantial difference between the right of belonging to a specific pension regime, and the concrete right to enjoy a pension. On this matter, in vote No. 98-6491 of 9:45 a.m. on September 10, 1998, the following was provided on this matter:

• A)ON THE MODIFICATION OF THE AGE AND TIME OF SERVICE TO RETIRE: When addressing the topic of acquired rights in pension matters, the Chamber has insisted in previous pronouncements on a core difference between the right of belonging to the regime and the concrete right to enjoy the pension. On these two nuances of the acquired right to retirement, the Chamber indicated:

"In this sense, it is necessary to observe that this right ceases to be a mere expectation and is acquired from the moment one enters the retirement regime, at least as a general right of belonging to it, and from the instant in which the beneficiary meets the factual conditions provided to receive the benefit, as a right to the current benefit, without it being necessary that they have claimed it, much less that the recognition has been declared or that they have begun to receive it... in the same way that the right to inheritance is acquired at the moment of the decedent's death, not at the opening of the probate proceeding, nor, much less, at the adjudication of the inheritance right or the delivery of the assets to the heir." (judgment No. 1147-90 of 4:00 p.m. on September 21, 1990).

I.- In the first of the cases, the right of belonging to a retirement regime holds a greater degree of abstraction and consists, in essence, of the right for the pension regime specific to the institution in which one works to remain, as well as its defining elements or conditions. The right to belong to the regime means the right not to be excluded, for its general parameters to be maintained, such as that the contribution be tripartite—a condition which, by the way, in similar proportions is in itself a constitutional right, without prejudice to the state contribution being equal in all regimes—. By its characteristics, this right is acquired by the mere entry into it, however, as already stated, its consequences are much more restricted than those that will be explained for the case of the concrete right to the pension.

II.The concrete right to enjoy retirement is that which has traditionally been used as an example to explain the concept of acquired right. In those same terms, it was always considered that it was born at the moment the worker met the requirements demanded by the law in force at that moment to access the retirement benefit. A consequence of this reasoning and of the difference in degree that has been made is that indicated in resolution No. 6124-93 of 2:30 p.m. on November 23, 1993:

"As for the effective enjoyment thereof, it is a right that cannot be limited, conditioned, or suppressed irrationally in any way, when the right as such has been acquired, thus constituting an absolute right of enjoyment. However, the same does not happen with the expectation of workers who contribute to a specific regime, so it is only upon meeting all the legal requirements –age, years of paying the quotas, amount, etc.– that said right is obtained." Thus, belonging to a specific pension or retirement regime is acquired from the moment one begins to contribute in said regime, but the concrete right to retirement is acquired when the interested person meets all the requirements established by law, and not before, as the plaintiffs claim, considering that the modification of the conditions to obtain this right is unconstitutional. They hold a right to belonging to a pension regime, which in this case is the Treasury regime (régimen de Hacienda), since what the challenged regulation –the Framework Pension Law (Ley Marco de Pensiones), No. 7302– did was unify the different existing regimes and create a "common framework," without in the least altering the pension belonging regime of public employees. Indeed, it is recognized that such regimes are regulated by law, which can be modified or repealed by virtue of another law, and to claim that the requirements can never be modified would imply creating a limitation on each existing pension and retirement regime, which has constitutional rank regarding its creation in general, but not regarding the specifications in particular. (In this same sense, see pronouncements No. 1341-93, of 10:30 a.m. on March 29, 1993 and 3063-95 of 3:30 p.m. on June 13, 1995).

Now, from what has been stated, it is clearly inferred that the right to retirement can be subjected to limitations, just like any other fundamental right. The foregoing implies that the person does not have a right to retire under specific conditions, as these can be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds that prevent the payment of the amount of the interested party’s retirement. Faced with this scenario, the Chamber considers that the questioned provisions are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Judicial Branch Pension and Retirement Regime, for which parameters and requirements were fixed based on the opinion of experts who were received by the Special Commission that reviewed legislative file No. 19,922, as well as technical studies that verified the existence of a problem that could affect the sustainability of the mentioned Regime, and for which they issued a series of recommendations. In that sense, having verified that the variation of requirements provided by numeral 224 and the period fixed by Transitory Provision VI of the bill have the ultimate purpose of guaranteeing the retirement right of the judicial servants, the Chamber dismisses the alleged defect.” LXIX.- Magistrate Castillo Víquez continues writing. In the previous quote, this Court precisely addressed the claim that the plaintiffs now reiterate in relation to the reasonableness and proportionality of Transitory Provision VI as it set the period at 18 months to meet requirements and retire or obtain a pension under the repealed regime. The basis of the reasoning on that occasion rested on the difference between the right to the effective enjoyment of retirement –which is only acquired upon meeting the established requirements– and the right of belonging held by the participants in the regime who have not met requirements, which constitutes only an expectation regarding the conditions of enjoyment established. Because of this, the changes made to the regime’s structure can be applied to all those who only hold a right of belonging, provided that such a decision is justified against the purpose and objectives of the regime and the proposed modifications, that is, that it appears reasonable and proportionate.

Regarding this last aspect, it is deemed appropriate to reinforce the arguments previously given by this Chamber, since the claimants insist on attacking that transition period because they understand that 18 months is an unreasonable, arbitrary, and unfair period for a number of people who, by days or weeks, were left out of the possibility of retiring despite having a great many years of service or the retirement age.

In this context, the majority of the Chamber begins by emphasizing the fact that the setting of the 18-month period as a transition period finds its basis in the specific jurisprudence of this Court regarding the issue of changes in pension regimes, as has been held—among several—in judgment number 1993-5476 of 6:03 p.m. on October 27, 1993, which addressed the claim of a person who alleged acquired rights to retire under the rules of a repealed regime. In its decision, it explained on the specific topic:

“II. (…) Within this order of ideas, it is important to indicate that the specific conditions of the regime, among which are the requirements of age and time worked, can vary in the future and may affect beneficiaries who lack more than 18 months to meet the requirements of the regulation being modified, but their right to belong to the regime and to retire under the same general conditions of the regime cannot be modified because it has been consolidated as an acquired right. The 18-month period, during which the modification of the specific conditions of the regime cannot affect the administered party who was projected to meet the requirements to receive a pension during that period, has been reiterated by the Chamber in several of its pronouncements, with the aim of protecting the beneficiary of a specific pension regime from sudden changes in the specific requirements necessary to obtain the concrete recognition of the retirement benefit; changes that can aggravate the conditions for obtaining the pension, when the interested party lacked only a few months to acquire the concrete right to the benefit, based on the modified regulation.” (the highlighting is not from the original) Thus, by ordering the application of the prior regime to those who met the requirements within an 18-month period, the legislator has been guided by the position of this Court on this specific topic of the appropriate period to balance the need for reform and updating of retirement and pension regimes with the necessary protection of a certain group of contributors against “…sudden changes in the specific requirements necessary to obtain the concrete recognition of the retirement benefit; changes that can aggravate the conditions for obtaining the pension, when the interested party lacked only a few months to acquire the concrete right to the benefit, based on the modified regulation” according to the Court’s own expression. The foregoing counts in favor of the constitutional validity of the measure taken by the legislator, therefore, a declaration of unconstitutionality in this case requires the provision of elements of judgment that succeed in demonstrating the lack of proportionality and reasonableness of using the 18-month period established by constitutional jurisprudence as from the effective date of the reform, for the extension of the scope of coverage of the prior pension regime.

In the specific case, however, the claimants fail to fulfill the task described above, and rather, the characteristics of the reform support what was done by the legislator, since, in the first place, the Chamber has weighed the magnitude of the changes that occurred with respect to the eligibility conditions, to conclude that their variation not only has a technical basis in actuarial schemes, as explained when addressing that issue, but that—additionally—the changes introduced do not represent—in general terms—an extremely abrupt and broad change with respect to what was previously required. Take as an example the case of an ordinary retirement of a contributor who has only worked in the Judicial Branch, where it is observed that to retire ordinarily under the new regime, the employee who entered at an age between 18 and 30 must work 3 years more than under the previous system, while for an entry age above 30, the required permanence as an active worker increases by 5 years compared to the previous retirement system. A similar situation is observed for the general cases of early retirement, whose comparison allows concluding that, in the vast majority of cases, the obligation of permanence as an active worker increases by 5 years compared to the previous retirement system; the Chamber only finds one exception in the case of early retirement for years of service, because the previous regulation did not contain a minimum retirement age, whereas now a minimum age of 60 years for women and 62 years for men is required, in which case, although the changes may exceed 7 years, it is no less true that the minimum limits (60 and 62 years for women and men respectively) do not in themselves signify an excessive requirement in terms of human dignity and effort. In short, from all the foregoing data, the Court understands that the change operated in the eligibility requirements is not disproportionate as proposed by the claimants, and therefore a transition regime different from the one chosen by the legislator was not constitutionally necessary.

Add to the foregoing that, contrary to what is held in some of the challenge briefs, the technical studies did contemplate the need for a brief transition system, in the interest of the sustainability of the discussed reform. In this regard, in the four options developed by the technical authority, and in particular in scenarios IICE 3 and IICE 4 (from which the guidelines for the final text of the reform were taken), it is specified that the sustainability calculations include the assumption that the modifications will be applied generally to all contributors, excluding only those who had more than 28 years of service on the date the change entered into force. This can be verified with the presentations and documents provided to the legislative file and visible on folios 2218 and 2230, so that the final legislative decision to recognize only contributors with 28 and a half years of service the possibility of retiring under the prior regime was indeed part of the necessary technical requirements that were taken into account to design the modifications that would provide financial support to the Judicial Branch Retirement and Pension Fund.

Likewise, the 18-month period was amply supported by the technical criterion, not only for reasons of legal certainty in accordance with constitutional jurisprudence, but also for reasons of actuarial solvency. Thus, in his appearance, the Superintendent of Pensions, Dr. Alvaro Ramos (see folio 1691 and following of the legislative file), referred to the need to make an 18-month transition in respect of constitutional jurisprudence (see folio 1711). In the same vein, the Procuraduría General de la República (folio 2115) and the Universidad de Costa Rica (folios 2264, 2265, and 2942 and following) expressed themselves, pointing out:

“The last frameworks recommended here, those of 3 and 4, contemplate exclusively what you have pointed out regarding 18 months” (Dr. Max Soto Jiménez) Basically the IICE frameworks, specifically, moved to try to model as closely as possible to eighteen months. In reality, to be sincere, at the modeling level it will be two years. That is, for those who have 28 years of seniority and above, the mathematical model assumed that a transitional provision would be respected for them, meaning, it was not measured in a completely precise way, but that is due to the modeling of life probabilities themselves, they are held for something, not for every half year and there are reasonings.

If one is theoretical, one can dedicate half a year to that, but let us say, to answer you, it was stimulated as closely as possible and the simulation assumed that for all those with more than twenty-eight years of seniority, their right to maintain their pension under the current regime would be respected.

It is what you see there when it says ‘participation with years of service, greater than or equal to twenty-eight’. When translating it into the regulation, what I would recommend—and we recommend—is to vote it at eighteen months, what the Constitutional Chamber dictated.” (Dr. Ronald Cartín Carranza) Deputy Pisk: Just to be clear. Despite that window for those with more than twenty-eight years, you recommend that this enter into force for everyone. Regardless of the years worked, it enters into force at eighteen months. Is that correct? Perfect.

Dr. Max Soto Jiménez: Those who retire within the following eighteen months, maintain the right under the current law.” (…)

“logically, a transitional provision exceeding 18 months negatively affects the actuarial solvency of the fund” (folio 2945) In another aspect related to this topic, some claimants have pointed out an infringement of Convention 157 of the International Labour Organization. Regarding this, it must first be indicated that said instrument has not been ratified by our country, therefore its value as a parameter for this Chamber will depend on whether its content has established clear and specific guidelines—validated by a good number of States—on the specific topic assessed here, namely, guidelines to protect rights “in course of acquisition.” However, the text of the convention does not include any provision that allows the Chamber to understand that the Costa Rican State has acted against the international trend in the protection of human rights, given that the aforementioned instrument is limited to regulating conditions so that States may grant recognition and protection to workers who, for different reasons, have accumulated rights under the protection of various state legislations. The foregoing is not applicable to the specific case, so this claim must be dismissed.

Finally, some of the claimants have mentioned within this specific claim the existence of an injury to the American Convention on Human Rights, pointing out that the Inter-American Court of Human Rights, as interpreter of said instrument, has already set the minimum conditions required of States for the respect of the right to social security in the sphere of the Inter-American Human Rights System. The interested parties refer that in the case “Muelle Flores v. Peru,” certain guidelines were established that are contradicted by the issuance of Ley 9544 in general, and in particular by transitional provision VI, with which the conventional rights of persons with less than 28 years and six months of service on the date the reform entered into force are affected. On the topic, the review of the text of the cited decision allows the Chamber to conclude that said judgment contains relevant elements for the interpretation of the fundamental right to social security, but that they are not relevant or pertinent to the resolution of this claim or of this process in general. In the aforementioned judgment, the Inter-American Court of Human Rights resolved the case of a person already retired, for whom the corresponding periodic sum they had been receiving ceased to be paid, due to the privatization of the public company that covered said payment. The case turned out to be even more serious, because the interested party obtained from the Peruvian justice system at least two final judgments in his favor, and yet, at the time of filing his complaint before the international justice body, he had not succeeded in making the resumption of the effective payment of his retirement effective. The Inter-American Court of Human Rights set out the factual essence of the case as follows:

“191. (…(T)he Court notes that the present case is not about the obligations of progressivity derived from Article 26 of the Convention, but instead refers to the lack of material realization of the right to a pension, as an integral part of the right to social security, of Mr. Muelle Flores, due to the failure to comply with and execute judgments issued in his favor at the domestic level within the framework of the privatization of the state company, carried out after his retirement. Mr. Muelle Flores acquired his right to a pension under a contribution system administered by the State, that is, he acquired the right to receive a pension after having made contributions over several years. The legality of his incorporation into said system was confirmed at the domestic level (supra para. 74)” And subsequently, it issues a valuable summary of its effort to review and interpret the different sources it deemed pertinent to its task of delimiting the right to social security in the specific case:

“192. In this regard, based on the criteria and constituent elements of the right to social security, and taking into account the facts and particularities of the present case, the obligations of the State in relation to the right to a pension are the following: a) the right to access a pension upon reaching the legal age for it and the requirements established in national regulations, for which a social security system must exist that functions and guarantees the benefits. This system must be administered or supervised and audited by the State (in the event it is administered by private entities); b) guarantee that the benefits are sufficient in amount and duration, allowing the retiree to enjoy adequate living conditions and sufficient access to health care, without discrimination; c) there must be accessibility to obtain a pension, meaning that reasonable, proportionate, and transparent conditions must be provided to access it. Likewise, the costs of contributions must be affordable and beneficiaries must receive information about the right in a clear and transparent manner, especially if a measure is taken that could affect the right, such as, for example, the privatization of a company; d) retirement pension benefits must be guaranteed in a timely manner and without delays, taking into consideration the importance of this criterion in elderly persons; and e) effective mechanisms for claims against a violation of the right to social security must be available, in order to guarantee access to justice and effective judicial protection, which also encompasses the material realization of the right through the effective execution of favorable decisions issued at the domestic level.” (the bold highlighting is not in the original) As can be observed, none of the points cited by the international court has been disregarded by the Costa Rican legislator in its effort to generate general measures for the modification and adjustment of the retirement and pension regime of the Judicial Branch; on the contrary, it clearly respects the situation of persons who had already acquired the right to the enjoyment of their retirement or pension for having met the established requirements, and on the other hand, it ensures the timely financing of an old-age retirement for those who still have yet to meet the legally established conditions.

In conclusion, the Chamber understands from the foregoing that there are no elements of judgment that allow asserting that the period established in transitional provision VI of Ley 9544 is unreasonable or disproportionate with respect to the purpose intended by the provision, and rather, the legislative decision is justified in the face of the changes made. Likewise, there is no infringement of conventional rights to declare, and therefore the action must be dismissed on this aspect.

LXX.- Authored by Judge Hernández López. Regarding the request for a declaration of unconstitutionality by connection of Ley número 9796 of December 5, 2019.- A group of the claimants within this process requests the declaration of unconstitutionality by connection of Ley número 9796 of December 5, 2019, because they estimate that it seriously injures their constitutional rights. They explain that after the approval of Ley número 9544 and the filing of these unconstitutionality proceedings, Ley número 9796 was published on December 20, 2019, in the Official Gazette La Gaceta, which was processed under legislative file number 21.035 and whose effective date was June 20, 2020. In that law, the special and solidarity contribution contained in the provisions of the various special pension regimes is redesigned, and in particular, Article 236 bis of the Judicial Branch Retirement and Pension Fund is modified, according to the text approved in Ley número 9544 challenged in this process. They point out an evident connection between that Ley número 9796, known as the “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria,” and what is provided by the discussed Article 236 bis of Law No. 8, reformed and introduced by Law No. 9544, because they are norms that regulate the same factual situation, that is, to obligate the pensioners and retirees of the Judicial Branch to pay a greater special solidarity contribution, given that the exempt amount has been reduced. They add that Ley 9796 increases collection by redesigning the maximum pension ceilings and the exempt pension, meaning that the condition of the Judicial Branch pensioners and retirees whose pension amounts exceed the exempt amount becomes more burdensome, since they must contribute a greater part of their monthly pensions, and they recount that this new law modified the exempt amounts of the special, solidarity, and redistributive contribution that had previously been established by Article 236 bis of Ley 9544 at 10 base salaries of the lowest-paid position in the Judicial Branch, and it is now limited to 6 base salaries, so that, in the case of the retirees and pensioners of the Judicial Branch Pension and Retirement Fund, the exempt base is reduced by 40% and the amount of the exemption drops from ¢4,258,000.00 to ¢2,554,800.00. With the foregoing, an evident constitutional injury by connection is realized with respect to what is discussed within this action, and the rights of the retirees, already unconstitutionally diminished by Article 236 bis of Ley 9544, are further affected.

In the criteria of the Court, the described request must be denied, based on the following reasons: the competence granted to the Chamber to annul norms by connection is contained in Article 89 of the Ley de la Jurisdicción Constitucional, which states:

“Article 89.- The judgment that declares the unconstitutionality of a legal norm or general provision shall also declare that of the other precepts thereof, or of any other law or provision whose annulment is evidently necessary by connection or consequence, as well as that of the application acts challenged.” From the cited text, it is inferred that the fundamental prerequisite for the application of this power within an unconstitutionality action is the need to ensure the relevance of the judgment that upholds and declares an unconstitutionality of a legal norm or general provision, allowing the Chamber to encompass other legal precepts that were not challenged but whose permanence within the legal order and evident connection with the discussed norms threatens to perpetuate the constitutional injury that is intended to be remedied by the initiated proceeding.

But the foregoing is not what occurs in this case, where the challenge raised against Article 236 bis of Ley 9544—of which Ley 9796 is a reform—was dismissed because it was understood that the original design of that norm, according to the text approved with Ley 9544, does not generate constitutional injuries that the Chamber must declare. Therefore, the prerequisite of the cited Article 89 is not met, and the request for unconstitutionality by connection must be dismissed.

Additionally, it is procedurally improper for this Court to undertake, within this process, an individualized and separate assessment of the constitutionality of Ley número 9796, and specifically of Articles 1, 2, 3, 4, and 7, which refer to the special solidarity contribution established for the pensioners and retirees of the Judicial Branch, both because—as explained—the claim against Article 236 bis has been dismissed, and because the recently cited Law introduces an important and substantial change in the design of the special, solidarity, and redistributive contribution mechanism, compared to the premises that at the time supported the issuance of Ley número 9544. Regarding such changes brought about by Ley 9796, there has not been an appropriate debate in this process, therefore, the Chamber should not issue a criterion on the issue, taking into account that several unconstitutionality actions are already being processed in this venue specifically directed against the different precepts of Ley número 9796, within which the different arguments on the topic may be broadly discussed and assessed by the parties. In conclusion, for the exposed reasons, the request for a declaration of unconstitutionality by connection of Ley número 9796 must be rejected, referring the interested parties to process their disagreement through the mechanisms established in the law in the respective file.

LXXI. Authored by Judge Castillo Víquez. Regarding the legislator’s omission to include a gender perspective in Article 224 of Ley 9544.- It is questioned in the accumulated actions that there is discrimination on the part of the legislator by not considering gender in the challenged legislation. The Procuraduría General de la República, upon answering the hearing granted in this unconstitutionality action, affirmed that this type of differentiation is only justified when technical studies suggest the need for differentiated treatment, and that the Chamber so resolved in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, further pointing out that, in any case, Article 224 bis of Ley 9544, related to the topic of early pension, does make a distinction between men and women regarding the retirement age; a distinction that is very similar to that provided in the Disability, Old-Age, and Death Regime of the Caja Costarricense de Seguro Social, since it allows the retirement of women at age 60 and men at age 62. For her part, the Vice President of the Supreme Court of Justice, in her report to the Chamber, stated that in relation to Article 224 of Ley 9544, in the report rendered before the second consultation to the Supreme Court of Justice, the text of the current norm did not make a gender differentiation, as other pension regimes do; an omission widely analyzed in the discussion of the third consultation and in which a special call was made to observe the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, which in its numeral 11, paragraph 1) subsection e) states that States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure the right to social security, particularly in cases of retirement for disability or old age, and to what is established in Article 71 of the Political Constitution regarding special protection for women at work. The President of the Legislative Assembly pointed out that, given that this claim regarding that numeral 224 of Ley 9544 does not address gender criteria is an aspect that had already been analyzed by the Chamber, the claim should be rejected. In relation to the topic, this Court, when analyzing the Facultative Legislative Consultation in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, certainly ruled, stating:

“(…)

From the reading of the previously cited norms, it is clear that they establish the requirements that every employee must meet in order to obtain a pension covered by the Pension and Retirement Regime of the Judicial Branch. However, in the criteria of this Chamber, the fact that a gender-based differentiation is not made in the terms mentioned by the consulting parties does not entail a vice of unconstitutionality, because it must be taken into account that the requirements for obtaining a retirement benefit obey objective criteria that are established based on technical studies, which establish requirements such as age and the number of quotas that a person must meet to guarantee the sustainability of a pension regime, regardless of the gender of the contributor. It must be kept in mind that the consulting parties do not provide technical studies to support the alleged unconstitutionality, in a way that objectively justifies making the differentiation that is missed, which does not mean that, in the future, this Court, through a posteriori constitutionality review, cannot analyze the grievance raised based on pertinent technical studies that might be provided. On the other hand, the studies mentioned in the consultation refer to other assumptions that are not admissible, as they have to do, among other things, with working hours, income, etc. Finally, it cannot be overlooked that, contrary to what is alleged in the consultation, the IICE, in official letter No. 186-2017 of August 18, 2017, clearly and precisely establishes the following:

“c. Required age for retirement and differences by gender.

The guidelines established for the retirement age in the Majority Opinion are the same as those used in IICE_3 and IICE_4 frameworks: 65 years for ordinary retirement. For retirement by service, a gender difference analogous to that established in the IVM regime of the CCSS is established: 62 years for men, and 60 years for women. The IICE team does not consider it necessary to establish additional distinctions based on gender.” By virtue of the foregoing, the Court considers that the alleged vice is not present.” In another order of ideas, it must be kept in mind that there is no absolute fundamental right, except in the case of not being subjected to cruel, inhuman, and degrading treatment, hence it is valid from a constitutional perspective to establish differentiated—or equal—treatment when there is an objective and reasonable justification, with this achieving a legitimate constitutional purpose. It must be remembered that the principle of equality implies, as the Constitutional Chamber has recognized in multiple resolutions, that all persons who are in the same situation must be treated equally. On the other hand, “The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases equal treatment must be given, disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But moreover, the cause of justification for the act considered unequal must be evaluated in relation to the purpose and its effects, in such a way that there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. That is to say, that equality must be understood based on the circumstances that concur in each specific case in which it is invoked, so that the universal application of the law does not prohibit contemplating different solutions in different situations, as diverse treatment. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality” (see votes No. 1770-94 and 1045-94).

The point is to determine whether this differential treatment is based on constitutionally legitimate purposes, whether it is objective, that is, whether it is supported by a different factual assumption, whether it is based on relevant differences (tertium comparationis), whether there is proportionality between the constitutional purpose and the differential treatment that has been made, and the motive and content of the act, and whether that treatment is suitable to achieve the pursued end.

In the first assumption, the differential treatment presupposes that it is based on constitutionally legitimate objectives, which entails three consequences in the pursued purpose. In the first place, laws cannot pursue ends that contradict the Law of the Constitution or the norms found in international Human Rights instruments. In the second place, when ends not constitutionally protected are pursued, but which do not contradict its values and principles, the differential treatment must be strictly monitored in relation to the factual assumptions that justify it and the purpose it pursues.

Finally, when a constitutionally protected purpose is pursued, differential treatment will be valid as long as it respects the criteria of reasonableness, proportionality, and is necessary.

The Constitutional Chamber, in vote No. 4883-97, expressed the following regarding this principle:

“The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of possible legally relevant differentiating elements that may exist; or what amounts to the same thing, not every inequality necessarily constitutes discrimination. Equality, as this Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But furthermore, the cause of justification for the act considered unequal must be evaluated in relation to its purpose and its effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is to say, equality must be understood in light of the circumstances that concur in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for different situations, with diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality.’ (Judgment number 6832-95 of 4:15 p.m. on December 13, 1995).” (The boldface does not correspond to the original).

There are justified and objective reasons to provide equal treatment between men and women regarding the retirement age. In the first place, such a legal mandate seeks a legitimate constitutional purpose, such as the effective enjoyment of a fundamental right to retirement and a pension and guaranteeing a sector of the population access, in broader terms, to social security - article 73 of the Fundamental Charter -. Secondly, this equalization is not an arbitrary act, lacking in reasonableness and proportionality; quite the contrary, it is based on actuarial studies - it corresponds to scenario two - and seeks thereby to close loopholes. In the third place, this equalization seeks to correct an actuarial deficit that a special retirement and pension regime has, since otherwise, if this measure and others established in the challenged legal regulations were not adopted, the logical and necessary consequence would be the non-sustainability of the cited regime in the medium term, with the consequent harm to retirees, pensioners, and active workers. It must be borne in mind that as of May 20 of the current year, active workers, based on gender, are distributed into 6577 women and 6919 men, that is, the former represent almost 50% of the judicial workforce, so differential treatment would necessarily have a negative impact on the sustainability of the regime, which must necessarily be compensated based on actuarial studies. No less important for the majority of the Tribunal is the argument that the global trend in retirement and pension regimes is toward the equalization of the age between men and women. The reason for this trend finds justification, among other reasons, in the fact that nowadays women have joined the labor force in a very significant way and have a longer life expectancy than men. To cite just a few examples, we see the trend in Europe, whose countries' economies are far superior to ours, is to achieve an equalization of the retirement age between men and women by the year 2040. Faced with the phenomenon of population aging and the cost of retirement and pension regimes, the trend has been not only to increase the retirement age but also to equalize it between women and men. As stated in a document from ECLAC, based on one from the European Commission, The 2015 pension adequacy report: current and future income adequacy in old age in the EU, Vol I, Table 4.5, p. 185, currently in Europe the retirement ages are the same for men and women in a large number of countries. In cases where the difference persists, the process of equalization is underway. It is stated that, in 2020, in the vast majority of countries, the equalization of the retirement age is a reality, and by 2040, in practically all of them. If the European Union, with all its economic power, does not have sufficient resources to sustain this type of differentiation, much less can a country with a weaker economy do so. It should be noted that this is the trend followed by our general retirement and pension regime - the IVM -, in which the retirement age between men and women has been equalized at 65 years of age in a context of population aging and an increase in life expectancies, elements that the majority of this Tribunal finds highly relevant and, logically, supported by actuarial studies, just as the legislator did when enacting the norm that is here challenged as contrary to Constitutional Law. Finally, the claimants, as was noted in the advisory opinion, do not provide technical studies justifying that differential treatment in the retirement age between men and women is justified. It must be reiterated once again that when a violation of the principle of equality is alleged – in this case because women are not in the same position as men –, the person alleging such a violation bears the burden of proof, and in a case of such magnitude, through actuarial studies that allow reconciling two objectives: the appropriateness of differential treatment without affecting the financial sustainability of the pension regime. Such argumentation is absent from the unconstitutionality actions, hence, for the reasons noted, it is appropriate to declare them without merit.

LXXII. Drafted by Magistrate Hernández López. Regarding the questions raised about the technical actuarial criteria provided in Products IICE_1 through 6. In relation to the Actuarial Study of the Judicial Branch Retirement and Pension Fund conducted by the Institute for Research in Economic Sciences of the University of Costa Rica, some claimants question specific aspects of methodology and regarding the samples used, the assessments made of the data, the parameters used, among others, to argue that it is not a suitable study to justify the reforms that were introduced in Law 9544; however, as clearly emerges from the case file, such arguments were not accompanied by technical evidence that would justify the assertions, much less did they offer any other equivalent and comprehensive study capable of refuting the conclusions reached by the Institute for Research in Economic Sciences of the University of Costa Rica, upon which the legislator enacted Law 9544, challenged here, so the appeal is declared without merit on this point.

LXXIII. Drafted by Magistrate Hernández López. Regarding the right to a survivors' pension. - In accordance with the International Labour Organization (ILO), Social Protection is a human right, essential for achieving sustainable development, comprised of sets of basic social security guarantees, defined at the national level, that ensure protection aimed at preventing or alleviating poverty, vulnerability, and social exclusion. In turn, social security consists of the welfare and economic systems that cover the risks to which certain persons, mainly workers, are subject, in order to repair or, at least, mitigate the damages, losses, and misfortunes of which they may be involuntary victims or victims without bad faith (see judgment number 2007-017971 of 2:51 p.m. on December 12, 2007). Of interest for this section, it is worth saying that, for the ILO, social security is "the protection which society provides for its members, through a series of public measures, against the economic and social distress that otherwise would be caused by the stoppage or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age and death; the provision of medical care; and the provision of subsidies for families with children" (see Introduction to Social Security. ILO. Geneva, 1987, p. 3). Social security is an essential instrument for creating social cohesion, it contributes to guaranteeing social peace and social integration, it forms an indispensable part of governments' social policy, and it is an important tool for preventing and alleviating poverty; administered correctly, it increases productivity by providing medical assistance, income security, and social services, and although it represents a cost for businesses, it is also an investment in people and, at the same time, a support for them (see Social Security: A New Consensus. ILO. Geneva, 2002, pp. 1 and 2). Within the group of benefits contained in social security in Costa Rica are "survivors' pensions," which are those that - upon prior fulfillment of the legally established requirements - can be granted to the family members who survive the active worker who dies, regardless of whether the cause of death is illness, work-related accident, or other causes. Thus, "survivors" in the context of social security refer to the worker's partner and their orphans, their protection acquiring special relevance because, precisely when an important part of a family's support is lost due to death, it becomes indispensable to guarantee their dependents the ability to continue having, at least, the minimum conditions necessary to survive while they manage to adapt to the new situation, and it is there that social protection policies make sense insofar as they contribute to preventing and reducing poverty and inequality, promoting social inclusion and respect for human dignity; they contribute to providing people with a dignified and full life in the terms set forth in Article 2 of the Comprehensive Law for the Elderly, No. 7935 of October 25, 1999. According to doctrine, the survivors' benefits branch of social security was originally conceived within a traditional family life model, composed of husband, wife, and children, in which the married woman stayed at home attending to domestic chores and raising the children, while the person responsible for supporting the family was the husband and father. Within that context, if the man died, his widow and orphans would be deprived of their support, exposed to multiple vicissitudes such as poverty, lack of minimum living conditions, impossibility of access to health and education, among others, and that is why survivors' pensions were devised as part of social security. Subsequently, with the incorporation of women into working life and the modification of the traditional family scheme, those survivors' benefits have become "family benefits or benefits for dependents," which, although they continue to be intended mainly for the partner of the deceased worker and orphans, are not necessarily aimed at providing them with basic support but rather come to collaborate with the economic contribution that the deceased insured person generated in their family nucleus, so that the family can continue to maintain a certain standard of living according to the one they usually enjoyed; a contribution that is of great relevance especially when considering that there may be small children or persons with disabilities, whose economic needs are usually very significant. In Costa Rica, the legislation regulating this matter has been based on the principles established in Conventions 102 and 128 as well as Recommendation 131, both of the International Labour Organization, and the Judicial Branch has been no exception, as its Organic Law has included this type of protection. In that sense, and before the reform by Law 9544 challenged here was approved, in the event of the death of an active Judicial Branch employee, the former Article 230 of the Organic Law of the Judicial Branch No. 7333 provided:

"Article 230. Officials and employees who have served for less than ten years shall not be entitled to retirement, nor shall their relatives be entitled to a pension, except in the case provided for in Article 228. However, if the death of the employee occurs as a result of the exercise of their duties—regardless of the time served by the employee— in addition to the compensation legally due, their beneficiaries shall be entitled to a temporary and proportional pension, within the conditions that this Law provides for such cases." As clearly emerges from a reading of the norm, Law 7333 regulated the possibility that, in the event an active Judicial Branch worker died, but had 10 or more years of service for the institution, their relatives would be entitled to a pension regardless of the causes of death, also establishing the possibility that, if the death occurred as a consequence of the exercise of their duties and the worker had less than 10 years of service, the beneficiary relatives would be entitled to a temporary and proportional pension, according to what is provided by Law for such cases. It is evident that the norm established broad social protection for the dependents of the deceased in accordance with the most basic principles established in the matter by the International Labour Organization, in terms of constituting a measure in favor of those persons against the uncertainty and risks of life that can result in harm to present and future well-being, as there is no doubt that a person's socioeconomic conditions potentiate inequalities, vulnerability, and poverty. It should be noted that, according to the former Article 224 - of Law 7333 -, to obtain retirement under regular conditions, a judicial worker had to have 30 years of service, and therefore the norm transcribed supra provided that officials and employees who had served for less than ten years would not be entitled to retirement; however, the legislator, with adequate social foresight, and anticipating the exceptional life situations that may occur, understood the need to protect the relatives and provided that, once 10 years of service had been exceeded, in the event of the death of the active worker, their dependents would indeed be entitled to a proportional survivors' pension. It is indisputable that this provision is of great relevance in a Democratic and Social State of Law, in addition to the fact that death is an undeniable and integral part of the life cycle, so it can occur at any time; however, it takes on special relevance in the case of the Judicial Branch because many of its employees, due to their duties, are subject to serious risks that can bring it about, and, for this reason, that legislator also provided in that norm that if the death of the employee occurred as a result of the exercise of their duties, in that case the worker's length of service would not matter, because even if it were less than 10 years, their beneficiaries were entitled to a temporary and proportional pension, within the conditions that the Law provided for such cases. It is more than evident that the legislator not only had a broad social and fundamental rights-guaranteeing perspective but also understood the transcendence of social protection as a mechanism to shield people against eventual risks in the life cycle, as a determining aspect in society to promote productivity, decent work, and the structural transformation of national economies in order to reduce poverty, social exclusion, and inequality, and strengthen social cohesion and political stability. Notwithstanding the foregoing, with the reform introduced to the Organic Law of the Judicial Branch through Law 9544 challenged here, the situation changes radically, as argued in unconstitutionality action No. 18-009275-0007-CO, in which the claimants argue that it "renders nugatory that right for future beneficiaries such as those who acquire the right to a survivors' pension (spouses, partners, dependent parents) or an orphan's pension, disabled or incapable persons who depend on the deceased person, because these, if the employee does not complete 20 years of service at the time of death, regardless of whether they had served 30, 35 or 40 years in another public sector institution, would be left helpless, uncovered in said contingency," considering that "the foregoing is inconceivable within the Social State of Law" and cite as an example the case of "a person who begins working for the Judicial Branch at age 50, this person must wait until age 70 to be able to retire and, even worse, if they died before reaching those years, their survivors would not receive any pension," also indicating that the most serious aspect of this radical change of conditions for survivors is that it was done without having technical criteria to justify it and without offering much analysis by the Legislative Branch. To understand the scope of the claimants' allegation, what is provided in numerals 228 and 229 of Law 9544 - challenged here - which regulate matters related to survivors' pensions, must be observed:

"Article 228- The following have the right to a survivors' pension:

• a)The surviving spouse of the deceased employee or retiree who is financially dependent on the deceased, at the time of death.
• b)The partner who is financially dependent at the time of the retiree's death, who has cohabited for at least three years prior to the death and both had legal capacity to marry, according to civil legislation.
• c)The divorced or judicially or de facto separated spouse, former partner, who is receiving a maintenance pension at the date of death, declared by final judicial judgment, or who demonstrates that they were receiving financial assistance from the deceased.

The following have the right to an orphan's pension:

• 1)Children who, at the time of the deceased's death, were financially dependent on them, according to the following rules:

1.1) Single minors.

1.2) Those over eighteen years of age but under twenty-five years of age, who are pursuing studies recognized by the Ministry of Public Education (MEP), the National Learning Institute (INA), or other institutions at the discretion of the Administrative Board.

1.3) Adults who, prior to the deceased's death, are disabled and incapable of performing paid work.

In the absence of entitled beneficiaries by widowhood, common-law marriage, or orphanhood, the parents have the right to a pension if, at the time of the deceased's death, they were financially dependent on them.

"Article 229- The amount of the survivors' pension benefits in cases of widowhood, common-law marriage, orphanhood, or ascendants shall be proportional to the pension amount the pensioner was receiving at the time of death, and in their entirety, this amount shall not be greater than eighty percent (80%) of what corresponded to the deceased. In the event of the death of an active employee, the amount of the pension for widowhood, common-law marriage, orphanhood, or ascendants shall be proportional to the pension amount the deceased would have received according to the fulfillment of requirements at the time of the contingency, and in their entirety, this amount shall not be greater than eighty percent (80%) of what would have corresponded to the deceased.

The proportions for benefits due to widowhood, common-law marriage, orphanhood, and ascendants shall be those stipulated in the regulations of the Regime.

Every survivors' pension shall expire upon the death of the beneficiary, except for what is provided in this article for the pension corresponding to children.

Benefits that expire shall proportionally accrue to those of the other beneficiaries that remain in force, at their request and provided they require it, prior social work study and approval by the Administrative Board of the Fund.

(Thus amended by Article 1 of Law No. 9544 of April 24, 2018) From a reading of both numerals, it is observed that the claimants' assertion makes sense when considering the case of an active Judicial Branch employee who dies and who constituted a support for the persons who survive them, because it should be noted that, under the rule established in the cited numeral 229 - currently in force -, in the event of the death of an active employee, the amount of the pension for those who are beneficiaries "shall be proportional to the pension amount the deceased would have received according to the fulfillment of requirements at the time of the contingency, and in their entirety, this amount shall not be greater than eighty percent (80%) of what would have corresponded to the deceased." The foregoing means that, as the claimants mention, only those dependents of an employee who had 20 or more years of service in the Judicial Branch may be beneficiaries of a survivors' pension, because the norm requires that the deceased be in a position to meet the requirements established in the preceding Article 224, or what is the same, that they had 20 or more years of service in the Judicial Branch; a norm that, furthermore, does not contemplate any possibility of a benefit for their dependents in the event that the death of the active worker was a consequence of the exercise of their duties in the institution. In addition to the foregoing, as the claimants rightly state, the norm was modified to pass to this new wording without there being any technical support to justify it, and, in that sense, it suffices to review the legislative file to which this Tribunal has had access to verify that there is no accredited technical basis in the file or in the testimonies of the technical experts, in relation to the survivors' pension, that justifies the difference being created between the previous Law 7333 and the reform. The Chamber has been able to verify that none of the 6 IICE Products that served as support for the legislator to issue Law 9544 contemplate any technical justification for rolling back social protection in this matter; a regression that is evidently contrary to the fundamental rights-guaranteeing principles that must be protected by this Constitutional Tribunal because, despite the fact that progressivity must prevail in this matter, in the specific case there was a regression without foundation, by changing the conditions for the survivors of working persons with 10 or more years of service in the Judicial Branch to 20 or more years of working in the institution. In addition to the foregoing, for the Chamber, such a burdensome distinction between the previous system and the current one makes the reformed norm unreasonable, and therefore lacking in a content of justice, and, in that sense, it must be recalled that this Chamber has pointed out in the past that if "the distinction established by a norm produces a situation of injustice, such a norm is not reasonable and, therefore, the content of the principle of equality enshrined in Article 33 of the Constitution is violated" (judgment number 2001-03192 of 10:10 a.m. on April 25, 2001). It is considered that the foregoing is so because, as can be observed, faced with two equal situations - death of an active male or female worker of the Judicial Branch -, Law 9544 challenged here gives them completely different treatment from that contained in Law 7333, despite the fact that almost 30 years have passed between the enactment of one law and the other, and the logical assumption is that societies advance in a positive and progressive manner, not the reverse. The real situation in which persons who could derive benefits under these circumstances have been placed is harmful to fundamental rights, openly contrary to what is provided by Article 51 of the Constitution, according to which the family, as a natural element and foundation of society, has the right to the protection of the State, highlighting with special relevance the case of the mother, the child, the elderly, and persons with disabilities. The foregoing means that, even though the State has the obligation to adopt the measures that are necessary to guarantee that protection, and included among them is, without a doubt, the recognition of social benefits derived from active workers in the Judicial Branch who have children or dependent persons who are members of that essential nucleus, the truth of the matter is that, based on Article 229 of Law 9544, they are left in utter helplessness if that active employee did not have 20 or more years of working for the Judicial Branch, in clear detriment compared to the previous system that protected workers with 10 years of service, or even less, if the death resulted from the exercise of their duties in the Judicial Branch, despite the fact that the death of an active working person generally refers to highly exceptional situations, which when they occur involve very few people, and that precisely for that reason, the recognition of a pension to their survivors would not imply a large-scale impact on the Judicial Branch Retirement and Pension Fund. Thus, the appropriate course of action is to maintain the 10-year requirement that Article 230 of Law 7333 established, such that the repeal of that norm, Consequently, it must be understood that the survivors' pension corresponds to the dependents of the active working person of the Judicial Branch who, at the time of the contingency, had 10 or more years of working in the Judicial Branch, and, in the event that the death occurred as a result of the exercise of their duties, whatever the length of service had been, the beneficiaries shall be entitled to a temporary and proportional pension in accordance with what the law provides, in addition to the compensation established by the regulations governing the matter, because, as already indicated, the amount of the pension seeks to replace the assistance that the deceased person provided to the persons who depended on them, so that they are not left in a situation of indigence or helplessness.

LXXIV.- Drafted by Magistrate Hernández López. Regarding the arguments raised in relation to ILO Convention 102. Our country signed Parts II and V through X of ILO Convention 102 (Social Security) on March 16, 1972. This Convention refers to various topics, among them: medical care (Part II), sickness cash benefits (Part III), unemployment benefits (Part IV), Old-Age benefits (Part V), employment injury benefits (Part VI), family benefits (Part VII), maternity benefits (Part VIII), Invalidity benefits (Part IX), survivors' benefits (Part 10). It has been known as the "Social Security (Minimum Standards) Convention," and it is the one that stipulates the minimum standards in that field, of mandatory observance for all those countries that have signed and ratified it, as is the case of Costa Rica, within the various possibilities it offers.

Regarding the scope of the term "residence," as indicated by the Convention in its Article 1.1. (b), it means ordinary residence in the territory of the Member, and the term "resident" designates a person ordinarily residing in the territory of the Member, such that, as the Chamber rectified in judgment number 2000-002091 of 8:30 a.m. on March 8, 2000, only by mistake can one speak of residence as belonging to a pension regime. Part XII of the Convention establishes the obligation of equality of treatment for residents with respect to nationals in Article 68, which, as relevant, states:

"Article 68 1. Non-national residents shall have the same rights as national residents. However, special provisions may be prescribed for non-nationals and for nationals born outside the territory of the Member, with respect to benefits or portions of benefits financed exclusively or predominantly from public funds, and with respect to transitional schemes. 2. In contributory social security systems whose protection covers employees, protected persons who are nationals of another Member that has accepted the obligations of the corresponding Part of the Convention shall have, with respect to said Part, the same rights as the nationals of the Member concerned.

However, the application of this paragraph may be conditioned on the existence of a bilateral or multilateral agreement providing for reciprocity." For its part, regarding old-age benefits, Articles 25, 27, 28, and 29 indicate distinct and mutually exclusive ways of securing old-age benefits: categories of employees (contribution); categories of the economically active population; and residents whose resources do not exceed certain limits:

"Article 25:

Every Member for which this Part of the Convention is in force shall guarantee to the persons protected the provision of old-age benefits, in accordance with the following Articles of this Part." "Article 27:

The persons protected shall comprise:

(a) either prescribed categories of employees, constituting in total not less than 50 per cent of all employees; (b) or prescribed categories of the economically active population, constituting in total not less than 20 per cent of all residents; (c) or all residents whose resources during the contingency do not exceed prescribed limits, in accordance with the provisions of Article 67; (d) or, where a declaration has been made by virtue of Article 3, prescribed categories of employees, constituting in total not less than 50 per cent of all employees working in industrial undertakings employing twenty persons or more." "Article 28:

The benefit shall be a periodical payment, calculated as follows:

(a) where protection covers categories of employees or categories of the economically active population, in accordance with the provisions of Article 65 or Article 66; (b) where protection covers all residents whose resources during the contingency do not exceed prescribed limits, in accordance with the provisions of Article 67." "Article 29.

1. The benefit specified in Article 28 shall be guaranteed, in the contingency covered, at least: (a) to the persons protected who have completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contribution or of employment, or of twenty years of residence; (b) when in principle all the economically active persons are protected, to the persons protected who have completed a prescribed qualifying period of contribution and in respect of whom, during the active period of their life, contributions have been paid at a prescribed average annual amount." As can be observed, subsection (a) of this Article 29 contemplates two assumptions corresponding to two of the systems: either by contribution, or by residence, and this concept clearly has a relationship with the fact of residing in a place for a determined time according to the very terms of the Convention. In any case, the argument of residence for the purposes of this convention is irrelevant because nowhere does the ILO attempt to establish rules for the survival of persons' rights in cases of a change in prior regulations. On this matter, it must be clear that, in the referred judgment (2000-002091), the Chamber was emphatic in pointing out that, although the cited Convention has a higher rank than the law in accordance with what is determined by Article 7 of the Constitution, it is also true that because of the very breadth with which international conventions are drafted for the sake of their greater flexibility, it is each country, in accordance with its own economic and social conditions, that determines which of the factual assumptions contemplated in the respective convention conforms to its own reality, and, therefore, how it can or what internal measures –prescribed rules in the language of Convention 102– it must define to comply with or adjust to the regulations it committed to respect before the international community. Under this scheme, specifically regarding the term "residence," it must be understood to mean habitual residence in the territory of the Member and the term "resident" designates the person who habitually resides in the territory of the Member, being, in the opinion of this Court, this and only this, the interpretation that can be given to it. As mentioned, and in accordance with the same judgment indicated, what is important here is not the term "residence," but rather that, in Costa Rica, the fundamental right that every person has to retirement is recognized; a right which this Court has also constantly insisted upon in that, like any other right, it is subject to conditions and limitations, the latter only insofar as they are provided for by the norms that recognize and guarantee them, and are also reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose (see judgment 2000-002091 of 8:30 a.m. on March 8, 2000). In this matter, it cannot be ignored that Costa Rica is at the forefront in social security matters because it goes beyond the requirements of the signed convention to establish a minimum associated with the right to retirement or pension and, therefore, this turns out to be what is truly important, not the thesis of some claimants who seek to re-establish old criteria of the Chamber that were maintained in judgments numbers 5261-95, 6842-99, and 673-00, setting aside what is important, which is the recognition by the Costa Rican legal order and the protection it has in practice, of the right to retirement, with all the legal guarantees that surround it. It must be clear that what the Convention seeks is to ensure that persons receive an old-age benefit under the terms of Articles 28 and 65, 66, or 67, according to each of the 3 cases indicated in the norms, but it is not required that specific regulations be maintained, and that is why it has been called the "social security convention," insofar as its purpose is to stipulate the minimum standards in that field that the countries that have signed it commit to enacting, it being that, in the case of Costa Rica, this has been respected and work is being done to ensure that this right to retirement and pension can be enjoyed by the majority of persons who meet the requirements for it. In that sense, therefore, it is clear that the employees of the Judicial Branch are not being left without an old-age benefit, which is what the Convention requires, since the new law maintains them. What varies are conditions for determining when they receive it. Consequently, with the content of the challenged Law 9544, no violation is being caused to the rights recognized by the Convention, as alleged by the claimant party, nor is it appropriate for the Chamber to vary the interpretation that has been given to it in judgment number 2000-002091.

It is also alleged that Article 65 of this Convention establishes that the amount of the retirement benefit must be based on gross earnings and not on the retirement amount. However, as is evident from the record, the truth of the matter is that the argument is not developed, that is, it is not substantiated, and that reason alone is sufficient to reject it, although from the text of the unconstitutionality action where it is mentioned, its relationship or applicability to the subject under discussion is not observed.

Finally, it is alleged that foreign residents are left in better conditions than nationals; an argument regarding which an adequate development or reasonable substantiation of the concept intended to be conveyed to the Court is also not made, and this omission is sufficient reason for its rejection. However, as was well specified supra, the Convention seeks equity between nationals and residents in identical conditions regarding the matters regulated in the convention, because again, what matters here is the recognition and protection made in the country of the fundamental right to a pension and retirement. The Chamber considers that isolated conditions cannot be abstracted from their context and extrapolated to a pension regime that must be evaluated integrally and that has conditions different from the assumptions regulated in the Convention, but which, as has been assessed in this judgment, is observed to comply with the parameters set forth by that international instrument. Consequently, claims related to these arguments must be rejected.

LXXV.- Drafted by Magistrate Hernández López. Regarding the allegation of the lack of appropriate demographic and sociological studies to support the reform carried out with Law 9544. A portion of the claimants argues that the legislator's decision to extend the retirement age for judicial servants should have been supported by a technical study of a sociological and demographic nature that could have determined, with certainty, the possibility that Judges of all the areas processed by the Judicial Branch, as well as judicial police, administrative personnel, Prosecutors, Public Defenders, among others, can work without affecting the service, but above all their physical and mental health, by extending the years of service to retire, questioning the decision adopted in this regard in Law 9544 without having that type of technical criterion. To assess this argument, it is essential to start from the objective for which the legislator proposed the reform to the Regime of the Retirement and Pension Fund of the Judicial Branch, which consisted of the need to adopt measures to recover the actuarial balance of that Fund in order to make it solvent for a period of 100 years, this because the situation was at a very high-risk level for its active contributing members, as well as for the retirees and pensioners it serves; present and future risk with the aggravating factor that if the necessary measures were not adopted, it could become a burden for the State through the Disability, Old-Age, and Death Regime of the CCSS or through the national budget. For this reason, given the imminence of the decisions to be adopted from an actuarial point of view, logically the technical studies and reports that were required were aimed at achieving the proposed objective, for which reason various actors intervened to request the Institute for Research in Economic Sciences of the University of Costa Rica to prepare an Actuarial Study of the Retirement and Pension Fund of the Judicial Branch that subsequently served as the basis for the Legislative Assembly to enact the challenged Law 9544. Now then, the foregoing does not mean that, in order to adopt measures in relation to a retirement and pension fund, only actuarial technical studies are sufficient; however, the decision on the design of such regimes ultimately is a matter belonging to the legislator's freedom of configuration. From this perspective, it is possible that in some cases of special retirement and pension funds, or in some workplaces, particular situations could exist in relation to some group of workers that, due to the type of work they perform, require conditions of access to the regime, membership, pension, or retirement that could not be applied to the generality of its members and that, for that reason, other types of technical studies of a demographic, social, or other kind could be required—such as those claimed—that would allow the legislator to adopt more balanced decisions in attention to that particular group of persons, including what in other countries has been called "pre-retirement"; however, it is reiterated that this is a power of the legislator and not of this Court. In this sense even, it can be observed at folio 1706 of the legislative file in which it is recorded that, in response to a question from a deputy to the Superintendent of Pensions at that time, regarding a population with special needs due to their workload, the response given was that, as a recommendation, "it is that you create a pre-retirement fund and do not put it in the ordinary fund, because of course, if you modify the conditions of the ordinary fund to attend to a subgroup with special needs, you affect the entire fund just for one subgroup. On the other hand, if you create a pre-retirement fund separate from the main fund, you can have that population and absorb the cost of that population." Thus, because the claim raised in this respect—relative to the absence of other types of technical studies—escapes the proper competencies of this Court, it must be said that, insofar as this Chamber is concerned, that omission for the specific case of Law 9544 is not considered injurious to the Law of the Constitution, leaving the door open for the legislator so that, in the future, if deemed necessary, it has that possibility.

LXXVI.- Drafted by Magistrate Hernández López. Regarding the principle of mutability in social security matters. A sector of the claimants argues that they understand the scope of the principle of mutability of the legal order because it responds to realities, but they also affirm that mutability must make it flexible, adaptable, and suitable to regulate life in society, considering that Law 9544 does not allow this to be applied because, in a single bubble of identical legal effects, officials who have very dissimilar personal circumstances are placed, assuming the burden of the reform under equal conditions. In relation to this principle, it must be recalled that this Chamber has repeatedly indicated that no one has a right to the immutability of the legal order, that is, that the rules never change (see judgment number 6134-98 of 5:24 p.m. on August 26, 1998) and in the case of special retirement and pension regimes, the legislator has full power to make the modifications it deems pertinent to give sustainability to the regime, but furthermore because these are solidarity systems that are built with the contributions of workers, employers, and the State in the legally established proportion, so that in order to guarantee compliance with basic principles of security and social protection, it is the competence, but also the obligation, of the legislator to adopt the measures necessary to maintain actuarial balance in these regimes, and this implies that the mutability of the legal order in this matter is aimed at satisfying the interest of the community and not the particular interests that some of its members might have. Recall that, even in this matter, in attention to the social ends it protects, it might be possible that some modification that could be considered regressive could eventually occur, but that would be valid to the extent that it is by law, is justified by technical criteria, and attends to parameters of reasonableness and proportionality. From this perspective, then, this argument is inappropriate, and it is considered that, in the specific case, the mutation of the legal order that has operated in the Retirement and Pension Fund of the Judicial Branch from the challenged reform conforms to the Law of the Constitution because it is aimed at achieving an objective that is of a social, solidarity-based, and collective nature: guaranteeing the solvency of that Fund for 100 more years for the benefit of its current and future members.

LXXVII.- Drafted by Magistrate Castillo Víquez. Regarding the absence of regulations governing benefits for postponement of the retirement right. It is recorded in the case file that a sector of the claimants questions the modifications introduced to the Retirement and Pension Regime of the Judicial Branch through Law 9544, for lacking specific norms granting benefits to the workers of the Judicial Branch who decide to postpone their retirement, which has indeed been established and regulated for other pension regimes existing in the country, as is the case of the IVM of the CCSS. On this point, it is opportune to mention what Article 25 of the IVM Regulations provides, according to which:

"Article 25. The insured person who meets the requirements to be entitled to the enjoyment of an old-age pension shall be entitled to an additional pension for postponement of retirement, as of the date on which they have met the legal and regulatory requirements. This additional pension shall consist of 0.1333% per month on the average salary calculated according to Article 23°.

The amount of the additional pension for postponement of retirement added to the amount of the ordinary pension calculated according to Article 24° of these Regulations may not exceed 125% of the indicated average salary or income." Note that this benefit for postponement translates into an economic recognition for the worker who, for personal, professional, or any other type of reasons, decides not to avail themselves of their right to retirement or pension at the time it would correspond to them, but rather decides to remain active, working.

The majority of this Court considers that within the range of fundamental rights recognized in the Costa Rican legal order is the right to retirement, as has been explained in its jurisprudence. Notwithstanding this, it is not possible to deduce from that fundamental right, nor from any other, that there is a fundamental right to the postponement of retirement, hence everything related to this is a matter of legislative policy—in the cases of special regimes—or concerns the constitutional competencies corresponding to the CCSS—in the case of the IVM regime—, so the fact that a special or general regime does not contemplate this assumption does not entail an unconstitutionality of that omission. Neither is the argument that the principle of equality is violated acceptable, given that in the case of the IVM regime this benefit is provided for, while in the Pension and Retirement regime of the Judicial Branch it is not, for the elementary reason that they are different regimes, of a different nature, with different retirement profiles—retirement age, contribution amount, calculation of retirement, etc.—, hence it is not possible to deduce an infringement of the right to equality, given that the persons belonging to the general regime are not in the same situation as the persons in the special regime, nor are the actuarial projections in one and the other regime the same. It must be kept in mind that the right to equality before the law does not mean that the legislator must treat persons who are in regimes that, in some non-substantial aspects, have certain similar characteristics in the same way, because not every inequality has such magnitude or intensity that it injures its essential core; for such an event to occur, it must be a case of odious discrimination, which implies in itself or through its effects a violation of a fundamental right, a situation that does not arise in the sub judice. Finally, it must be kept in mind that unconstitutionality by omission occurs in those cases where the legislature fails to carry out an express mandate that is in the Fundamental Charter or it involves a relative omission, that is, those cases in which a differentiated treatment is given to groups that are in the same position without there being an objective and reasonable justification and the realization of a constitutional purpose is not sought, a situation that does not occur in the sub judice, as explained supra.

In judgment 10653-2019, this Court expressed the following regarding unconstitutionality by omission:

"II.- ON UNCONSTITUTIONALITY BY OMISSION. Given that, in the sub judice, the configuration of an alleged unconstitutionality by omission is accused, it is relevant to refer to what has been resolved by this Chamber on the subject of legislative omissions and their control by this Constitutional Court. Thus, for example, recently, in Vote No. 2018-018592 of 09:20 a.m. on November 7, 2018, this Chamber reiterated:

'(…) This Chamber, in Judgment No. 2005-05649 of 2:39 p.m. on May 11, 2005, defined the most relevant features of the so-called unconstitutionality by omission, provided for in Article 73, subsections (a) and (f), of the Law of Constitutional Jurisdiction, under the following terms:

'(…) The Law of the Constitution, that is, the set of constitutional principles, values, and precepts contained in the Magna Carta, can be infringed by public powers and individuals through active or omissive conduct. For the particular case of the Legislative Assembly, that power of the State breaches the block of constitutionality by action when it dictates unconstitutional laws or when, during the legislative procedure for their issuance, it incurs in substantial defects of such a nature that merit their annulment. The Legislative Assembly infringes by omission the parameter of constitutionality when, in the face of an express or tacit mandate from the original constituent power or the reforming power to dictate a law that develops a constitutional content or clause, it does not do so—absolute omission—or when despite having dictated a law, this turns out to be discriminatory, by omission, by not regulating the situation of a specific sector or group of the population or of the potential recipients it should have comprised or encompassed—relative omission—. In both instances, this Constitutional Court has sufficient competencies and express regulatory authorization to exercise constitutionality control and declare an eventual unconstitutionality of the omissive conduct (…)'.

It is specified therein that this is a specific type of unconstitutionality, to which any figure cloaked in an omissive form cannot be redirected, as highlighted by the Chamber's Vote No. 2010-8600 of 3:08 p.m. on May 12, 2010:

'(…) Although this Constitutional Court is empowered to act as a negative legislator, with the power to annul from the legal order all those norms it considers unconstitutional, the truth is that it is prevented from acting as a positive legislator creating norms. On the other hand, even though this Chamber is competent to hear legislative omissions as established in Article 73 of the Law of Constitutional Jurisdiction, it is important to clarify that not every normative omission can be challenged through this means. In this sense, only those omissions that occur as a consequence of an express and direct mandate contained in the Political Constitution can be subject to constitutionality control via the action. Now then, in the specific case, the claimant complains that the norms do not indicate what the procedure is for the designation of worker representatives in the case of a collective conflict, but the omission challenged by the acting party does not come from an express mandate of the constituent power; rather, it is an omission that the party claims to find in the text of the article, without the duty to legislate in the sense explained by the claimant coming from the Political Constitution. Likewise, since this is a Court that acts as a negative legislator, it is clear that an eventual favorable ruling, with the consequent elimination of the norm, would not repair the omission indicated by the petitioner, so the action filed in those terms lacks utility and is therefore manifestly improper. As in this case, what is challenged is not the text of the norms themselves, but what—in the claimant's opinion—they omit, this Court cannot rule in order to supplant competencies of other organs or powers. Under such circumstances, the action is inadmissible in this respect. (…)'.

In this way, the Chamber has endeavored to ensure that the technical figure of unconstitutionality by omission is not distorted through arguments by means of which the modification of certain legislative texts is sought in favor of specific interests. Evidently, that a text has a specific content and omits another is a simple hermeneutical generality, which only in the specific cases defined by the Chamber since Judgment No. 2005-5649 comes to configure the assumption of unconstitutionality by omission. That is, only when the gap implies the infringement of an express constitutional mandate is it possible to exercise the control in question. The admissibility of an action of unconstitutionality by omission requires demonstrating that the Constitution demands, for the full enforceability of its precepts, an action by the Legislative or Executive Power, with a determined content." LXXVIII.- Drafted by Magistrate Hernández López. Regarding the questioning that the Disability State Assessment Commission of the Costa Rican Social Security Fund is the entity that determines whether a worker is entitled to an early pension due to illness. Some claimants question that it is the Disability State Assessment Commission of the Costa Rican Social Security Fund that determines whether a worker can be entitled to an early pension due to illness and not the Forensic Medicine Department of the Judicial Branch, as had always been the case in the institution, and they argue that this is irrational because, in addition to subjecting the persons who must be evaluated to long waiting lists due to the backlog that Commission handles, ultimately, within social security processes, the Forensic Medical Council is the last instance of review of the actions of the medical assessment body of the CCSS, so they consider that Article 227 of Law 9544 is contrary to the Law of the Constitution. Regarding this point, it must be noted that within the freedom of configuration that the legislator has, the definition of this type of competencies is a matter of opportunity and convenience inherent to its powers of creating Law, considering that there is no violation of fundamental rights with this decision and, therefore, this argument is rejected.

LXXIX.- Drafted by Magistrate Castillo Víquez. Regarding the conservation of rights in the course of acquisition included in ILO Convention 157. A group of claimants allege that the absence of gradualness criteria for the application of Law 9544 injures the principle of conservation of rights in the course of acquisition that is included in ILO Convention 157, because persons with many years of contributing to the Retirement and Pension Fund of the Judicial Branch, while they do not have an acquired right, had rights in the course of acquisition, and therefore, they should have been given a different and superior treatment than a simple expectation of right, and they mention that, in this sense, the Constitutional Court of Colombia recognized in judgment number T-235 of 2002 that "the substitution of one norm for another requires the necessity of a transitional regime. The existence of transitory norms is indispensable in the designation on social security in pensions because there are rights in the course of acquisition." On this matter, in the first place, it must be indicated that, as can be observed on the official website of the International Labour Organization and the information visible at the link: https://www.ilo.org/dyn/normlex/es/f?=1000:11210:0::NO:11210:P11210_COUNTRY_ID:102599, Convention 157 of that Organization has not been ratified by Costa Rica and, therefore, it is a proposal that is not binding for the legislator. As far as this Constitutional Court is concerned, it must be said that, while Articles 6 and 7 of this Convention, which regulate matters relating to the system of conservation of rights in the course of acquisition, can serve as parameters of interpretation, it is also true that, on this point, the Chamber is not subject to the need to carry out any interpretation because the situation is very clear, since there are technical criteria that gave support to the decision adopted by the legislator in Law 9544 and because, furthermore, the Chamber observes that the Legislative Assembly has complied with the minimum parameters in social security matters required by the so-called "Social Security Convention" or Convention 102, which is the one that stipulates the minimum standards in that field, mandatorily requiring compliance for all those countries that have signed and ratified it, as is the case of Costa Rica, within the various possibilities it offers. Consequently, this claim must be rejected.

LXXX.- Drafted by Magistrate Hernández López. Regarding the employment contract of persons working in the Judicial Branch: Among the substantive arguments that have been raised against the reforms introduced by the challenged Law 9544, it is argued that, with them, a modification of the employment contract of persons who began working under the retirement conditions contained in Law 7333 has taken place and that this implies a radical change that injures their fundamental rights.

It should be recalled that in the public employment labor relationship, and provided there is due justification, the working conditions under which the servants perform may be modified for the sake of the need to improve the service and satisfy the public interest; therefore, the servant must adjust to the regulations as they are issued. In the case under study, it has been technically more than demonstrated that, in order to strengthen the Judicial Branch’s Retirement and Pension Fund and give it sustainability for the next 100 years, it was necessary to implement the modifications set forth in Law 9544, which redound to the benefit of the workers themselves and, therefore, it is not accurate to consider that such reforms imply a change in the employment contract of the judicial servants, who are obligated as beneficiaries of the fund to the measures necessary for its sustainability.

LXXXI. – Judge Hernández López writes. Regarding the modification to the salary structure due to Law 9544: As of the reforms introduced by Law 9544 regarding the new amounts to be contributed to the Judicial Branch’s Retirement and Pension Fund, both for active servants and for those already retired or pensioned, several questions have been raised concerning the new conformation of the salary structure, considering it to be harmful to the fundamental rights of the Judicial Branch’s workers, but likewise, of the retirees and pensioners regarding the components of their pecuniary benefit. Regarding this topic, one must not lose sight of the fact that the objective of the reform is to restore the actuarial solvency of the Fund and make it sustainable for the next 100 years; an objective that, besides being of institutional and state interest, will bring the greatest benefits for its members, such that the reforms introduced by Law 9544 are justified, even if this entails increasing the contributions of the members of that Fund, whether active and retired or pensioned, which was accepted by the various guilds of Judicial Branch workers, being aware of the need for the reforms. For these reasons, if on account of the modifications introduced, the amount of the contribution to the fund has been increased and an item has been introduced to pay for the Fund’s administration, this does not have the capacity to violate any fundamental right, given that the final objective justifies it and, as has been accredited, it has been supported by technical studies. Consequently, regarding this point, the claims that have been formulated are rejected.

LXXXII. – DIFFERENT REASONS OF JUDGE CASTILLO VÍQUEZ. – Regarding the hard core of the right to retirement or pension. The doctrine of the hard core or essential content of human rights arose in Germany based on the provisions of Article 19 of its Constitution. Now, although there is no general agreement on what comprises the essential content of a fundamental right, the methods that the Spanish Constitutional Court has used in its jurisprudence are useful for its determination. In that sense, in judgment number STC 11/1981 of April 8, 2011, the Court defined the essential content as “that part of the content of a right without which it loses its peculiarity, or, put another way, what makes it recognizable as a right belonging to a specific type. It is also that part of the content that is inescapably necessary for the right to allow its holder the satisfaction of those interests for whose attainment the right is granted… the essential content is exceeded or disregarded when the right is subjected to limitations that make it impracticable, that go beyond what is reasonable, or that strip it of the necessary protection.” From the foregoing, it follows that the first of the methods refers to the legal nature of the right, pre-existing at the moment it is regulated by the legislator, such that the faculties and possibilities of action necessary for the holder make the content of the right recognizable, and if the legislator deprives it of said faculties, leaving it unrecognizable and denaturing it, such action is contrary to the Law of the Constitution. On the other hand, the second method corresponds to the legal interests that must be protected insofar as they give foundation to the right, such that the content is harmed when the right is subjected to limitations that prevent its practice, make it difficult beyond the limit of reasonableness, or strip it of the necessary protection.

The right to retirement, like any other right, has a hard core that is unavailable to the legislator, such that the latter cannot impose limitations that impede the real exercise of the right. In light of this, it is not possible to establish contributions that result in the person receiving an amount for retirement or pension that does not allow them to have a dignified life and satisfy their needs, since, in this case, the fundamental right is denatured. In that sense, in the study *Pensions at a Glance*, the Organisation for Economic Co-operation and Development (an organization that groups 34 countries and whose purpose is the growth of the economic and social well-being of people in the world) explains that, in the vast majority of the countries analyzed in that research, there is a progressive contribution system, where workers with an average income generally pay more taxes than the pensioner who had an average income during their time as an active worker, given that the latter now receives a lower income for retirement or pension. Likewise, in those countries, people who earn an income equal to the average active worker for retirement or pension will pay a greater contribution than other retirees or pensioners, since it is presumed that during their time as a worker they received an income that was above the general average. In the cited study, it is mentioned, by way of example, that in Germany an average worker pays a 37% contribution, while the pensioner who received an average salary during their time as a worker will contribute 18%, and in the case of one who has a retirement or pension equal to the income of an average worker, they pay 30%. Finally, in said research, it is provided that the contributions paid by retirees range from 0 to 40%.

Now, although in accordance with the provisions of Conventions 102 and 128, and Recommendation 131 of the International Labour Organization, the hard core of the right to retirement or pension can be established, respectively, at 40%, 45%, or 55% of the gross amount the person receives for said concept, I consider that, based on the provisions of Article 29 of the American Convention on Human Rights – which authorizes the States Parties to recognize greater rights than those found in International Human Rights Instruments – the Inter-American Convention on Protecting the Human Rights of Older Persons, as well as in application of the principles of reasonableness and proportionality, it is necessary to set the hard core of the right to retirement or pension at 50% of the aforementioned amount, such that the legislator, in the exercise of the taxing power, cannot exceed that percentage through the establishment of tax contributions, non-tax contributions, or other types of charges – such as deductions for special solidarity and remunerative contributions, taxes, and other burdens. To determine the amount of the 50% tax burden, the salary tax that has affected the worker during their working life must be taken into account, given that this is calculated on the gross amount of their salary, so the contributions to their retirement regime have already been taxed; if it were not so, it would be a type of double taxation, since the contribution is also included when taxing the salary, so it is necessary that this be taken into account when establishing the amount of the tax burden on the retirement and pension. It should be clarified that the aforementioned percentage – 50% – responds to the fact that retirees constitute a vulnerable group, requiring special protection; hence, any deduction from their retirement greater than the previously established amount leads to its denaturing, thus violating the special protection that the Constitution itself grants to older adults in Article 51, and that established in international Human Rights instruments, such as the recently approved Inter-American Convention on Protecting the Human Rights of Older Persons, which, among other things, establishes the obligation of the signatory States to protect a series of rights of this population, such as: access to housing, health, education, equality and non-discrimination based on age, independence, dignity in old age, social security, and freedom of expression, among others. It must be borne in mind, following the doctrine established by this Court, in the sense that international Human Rights instruments, once the Law approving them is enacted, have full force in the country, without the need to await their ratification and entry into force in accordance with the rules that the instrument itself establishes for this, for the elemental reason that their final recipient is the person, that is, the inhabitants of the Republic, so the State of Costa Rica is obliged to respect their content, object, and purpose – see judgment No. 7498-2000, among others. In this analysis, one must not lose sight of the fact that ILO Convention 102 was approved by Law No. 4736 of March 29, 1971 – Convention 128 has not been approved or ratified – while the Inter-American Convention on Protecting the Rights of Older Persons was approved by Law No. 9394, ratified by the Executive Branch by means of Executive Decree No. 39973-RE, which means that between the entry into force of the former and the latter, there is a very long lapse of time – almost forty-five years – during which the vision, interpretation, and application of the norms of International Human Rights Law have undergone significant evolution, above all from the use of the principles *pro libertatis* and *pro homine*, a situation that this Court cannot overlook, so the application of the norms found in the ILO Conventions cannot be interpreted or applied disregarding this reality and the promulgation of other International Human Rights Instruments that protect the rights of older adults, especially since Convention 102 limits itself to establishing: minimum standards of social security. Nor can this Court set aside what is expressed in ILO Recommendation No. 43 concerning the General Principles of Insurance against Invalidity, Old-Age, and Death, adopted at the 17th Session of the International Labour Conference on June 29, 1993, in the sense that the pension must cover essential needs, must take into account the cost of living, and guarantee a pension that corresponds to the social situation of the retiree during the period of professional activity, and even the pension of persons who have credited thirty effective years of contributions must not be less than half of the salary insured from entry into the insurance or during the determined period immediately preceding the settlement of the pension. Thus, it is necessary to make a harmonious and evolutionary interpretation between the two international Human Rights instruments – the ILO Convention and the Convention – and thereby guarantee a minimum of the retirement that allows the older adult to enjoy a dignified life, that is, to have sufficient income to realize the rights granted by the Convention, a situation that is more certain when the contributions of the worker, the employer, and the State are in harmony or in a logical and reasonable relationship with what the retiree or pensioner receives monthly for retirement.

Also forming part of the hard core of the right to retirement is that which cannot be affected by the State in the exercise of the taxing power, what has been called “the core of contributions” that the worker, their employer, and the State have made to the retirement system during their entire life as an active worker and their contributions as a retiree or pensioner to the respective regime, when they are required to continue contributing to the pension regime, as well as the respective earnings. To this must be added their contributions to the second and third pillars of the retirement and pension regime, that is, to the mandatory pension regime and the complementary voluntary retirement and pension regime, since this constitutes their lifelong savings to procure a dignified old age, besides which, for a significant number of active workers, those contributions were duly taxed by salary taxes and other tax burdens, since the latter are calculated on the gross salary, and not on the net amount earned. Regarding the contribution of the State as employer and as State, it is not possible to maintain that because of those contributions the taxing power has no limits or must be more intense, for the elemental reason that all retirement and pension regimes start from a fundamental pillar enshrined in Article 73 of the Political Constitution, namely: the system of compulsory contribution by the State, employers, and workers; therefore, regardless of whether it is a pay-as-you-go or a capitalization regime, whether in its collective or individual modality, the contributions of the State as employer and as such form part of the necessary resources for the worker to obtain a retirement or pension. Hence, the argument that since the State makes a certain contribution in its dual capacity, the taxing power is more elastic is fallacious. Besides, this argument goes against a constitutional principle, namely that of legitimate expectations (confianza legítima). That is, the active worker contributes a sum of money to social security on the understanding that what the State contributes in its dual capacity will be respected; otherwise, we would be endorsing that what the State originally guaranteed the worker throughout their entire working life, once retired or pensioned, is taken away through the exercise of the taxing power. As is well known, legitimate expectations is a concept coined in German Law (*Vertrauensschutz*), where it has constitutional rank, derived from the principle of legal certainty and, in other legal systems, also from the principle of good faith. This principle is of old date. Indeed, the Court of Justice of the European Communities (CJEC), despite it not being set out in the Constitutive Treaties, recognized it in 1973 in matters of public administration (Case 81/1972 of June 5). For its correct interpretation and application, according to doctrine, certain requirements are demanded: 1) that there be an action by the community authorities that justifies the legitimate expectations of the affected persons (and, in this sense, it is possible that either a legal or illegal measure that confers benefits, administrative practices, promises made, erroneous information supplied, surprising regulatory changes, etc., may exist); 2) The expectations of the person, which have a subjective basis, must, as the case may be, be recognized and considered by an external observer and thus be capable of acquiring an objective basis and dimension, such that they become what the Court calls “founded hopes” not contrary to Community Law; and 3) it is necessary that in the weighing of the interests of the affected person against the public interest present, the latter is not preponderant. As can be observed, if the State as employer and as such makes a contribution to a retirement or pension regime to finance the retirements and pensions of active workers, there is a founded expectation on their part that those resources will be used for that purpose, hence it is not legitimate and in accordance with the principles of legal certainty and good faith that the State, through the use of the taxing power, later takes back those resources and diminishes the amount of the retirement or pension. Moreover, in this case, the weighing between the public interest and the interest of the person is not affected, given that the requirement of the State’s contribution in its dual capacity is due to an express constitutional mandate; therefore, acting in the opposite direction would entail violating the Law of the Constitution (principles, values, and norms) and, consequently, affecting public interests – the right to social security that all workers have.

Finally, and although it is not the object of these unconstitutionality actions, excepting the case of the contribution that retirees and pensioners can be required to make to continue contributing to the sustainability of their regime, differentiated treatment could not be given to retirees and pensioners of other retirement and pension regimes who receive an amount equal to or less than the maximum retirement or pension amount granted by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) in relation to the taxes paid by retirees and pensioners of this latter regime, for the elemental reason that these retired and pensioned persons receive a reasonable and necessary income to meet their basic needs, much less could these retired and pensioned persons – from all regimes – be taxed when it turns out that active workers are not subject to those taxes because they do not fall within the hypothesis provided by the norm for the taxable event to occur in the various taxes, parafiscal contributions, etc., or impose taxes greater than those paid by active workers – with the exception of the contribution to the respective regime.

Finally, and without detriment to the foregoing, it is convenient to clarify that the criterion mentioned above for establishing the hard core of the right to retirement is not applicable for setting the caps on retirements and pensions, as these are different matters, although related to each other, besides the fact that the matter of caps has its own rules, which are defined based on actuarial or technical studies, criteria of reasonableness and proportionality, the logical and necessary relationship that must exist between the contribution made by the worker and the employer to the respective regime and the amount of the retirement, and the concretization of the principle of social solidarity.

LXXXIII. – NOTE BY JUDGE CASTILLO VÍQUEZ. The reasons that led the Presidency of this Court to enable, initially, and then to reject, the various motions filed by Judge Garro Vargas are set out with crystal clarity in various resolutions issued in Unconstitutionality Action No. 18-007819-0007-CO. Thus, in the resolution of 9:57 a.m. on April 27, 2020, the Presidency stated the following:

V.- The status of Judge Garro Vargas changed since the resolution of her first motion. As she herself indicates, as of February 12, 2020, she is a proprietary judge of this Chamber, and, in that capacity, she was enabled to hear this action – *supra* resultando 12. This situation, an enabled proprietary judge who, being a substitute judge, had been previously removed from the case file, formulates a new motion for recusal, has already been analyzed in this case file. Thus, this Presidency has resolved that:

“Judge Jorge Araya García, in his capacity as a substitute judge, had already filed a motion for recusal, in terms similar to those recently transcribed, which was, at the time, accepted by the Acting Presidency of the Chamber – *supra* resultando 6. As Judge Araya García correctly points out, as of November 1, 2018, he assumed the position as proprietary judge of this Chamber, which gives rise to the filing of this new motion.

V.- For the resolution of this motion, Article 29, subsection 2), of the Organic Law of the Judicial Branch establishes that:

‘When, due to impediment, recusal, excuse, or other reason, a servant must be separated from hearing a specific matter, their absence shall be filled as follows:

[…]

2.- The Magistrates, by the substitute judges called for that purpose. The members of collegiate courts shall substitute for one another and, in the event that the cause covers all or the majority, by their substitutes. When the cause covers proprietary and substitute judges, the case must be heard by the proprietary judges, notwithstanding the cause and without disciplinary liability regarding them.’ Likewise, what is provided in the resolution of 2:40 p.m. on August 3, 2018 – *supra* resultando 9, by which the other proprietary judges of this Chamber were enabled, is fully applicable, which provided the following:

‘According to the provisions of the transcribed resolution, as well as what is established in Article 14 of the Law of Constitutional Jurisdiction and numeral 29, subsection 2), of the Organic Law of the Judicial Branch – *supra* Considerandos I and III, it is the duty of the Proprietary Magistrates to hear those matters by legal imperative, without them incurring disciplinary liability for this. The foregoing constitutes, therefore, a normative justification defense that releases from all liability, including criminal, the Magistrates who hear a matter in which the Substitute Magistrates, necessary to form the Court, have some cause for recusal or impediment to hear the same matter.’ By virtue of the considerations made and in application, furthermore, of the general principles of Law of the non-waivability of competences, the hermetic plenitude of the legal system, and the natural judge, the appropriate course is to reject the motion for recusal of Judge Jorge Araya García. The situation that Judge Araya García sets forth at this time, the manifest interest in this matter since his first motion for recusal, or any other cause, are irrelevant from the moment that, by legal imperative – transcribed numeral 29, subsection 2), of the Organic Law of the Judicial Branch – he is obliged to hear this action. It is not possible to admit that ‘supervening’ causes – *supra* resultando 4 – come to undermine said composition; accepting them, in this particular case, would lead to the extreme of not being able to form a Tribunal and the Chamber not fulfilling the competences that, constitutionally, have been assigned to it. Consequently, the appropriate course is to declare him enabled to hear this matter” (Resolution of 3:05 p.m. on November 6, 2018, issued in this case file).

VI.- As all the judges of this Chamber, both proprietary and substitute, have some reason for recusal for the purposes of forming the Tribunal – *supra* resultandos – it is not assessed which judge might have a ‘privileged’ reason for separation, such as their relatives, but rather the norms provided in the legal system to form the Tribunal. Numeral 29, subsection 2), of the Organic Law of the Judicial Branch, not cited by Judge Garro Vargas, is clear in indicating how the Chamber must be composed in a situation like the one described: ‘When the cause covers proprietary and substitute judges, the case must be heard by the proprietary judges, notwithstanding the cause and without disciplinary liability regarding them.’ The situation of Judge Garro Vargas changes from the moment she becomes a proprietary member of this Tribunal and, consequently, her legal and constitutional duty is to be part of this Chamber for this case. Removing the natural judge from hearing a matter assigned to her office can, rather, affect the administration of justice, and it is only justified under serious causes and reasons. In addition to the transcribed norm, it would be contrary to due process for a case to be judged by an incompetent or *ad hoc* tribunal, as this is one of the scopes of the so-called principle of ‘natural judge,’ ‘regular judge,’ or ‘ordinary judge,’ whose foundation is found in Article 35 of the Constitution. By virtue of the foregoing and the right of the non-waivability of competences, the hermetic plenitude of the legal system, and the natural judge, the appropriate course is to reject the motion filed by Judge Anamari Garro Vargas.” Subsequently, by resolution of 8:44 a.m. on June 2, 2020, the Presidency further clarified the reasons why Judge Garro Vargas was enabled to hear that unconstitutionality action:

V.- Regarding the alleged omission in the resolution of April 27, 2020 (II.- a). Judge Garro Vargas points out that the resolution of April 27, 2020, is omissive and did not analyze all her arguments, since, contrary to what was indicated, she did refer to Article 29, subsection 2), of the Organic Law of the Judicial Branch. Judge Garro Vargas, in her motion for recusal, stated the following:

‘As is well known, the norms governing the grounds for impediments to hear a matter in constitutional jurisdiction are contemplated, in order of precedence, in Articles 4, 6, and 14 of the Law of Constitutional Jurisdiction (LJC), Articles 25 and 31 of the Organic Law of the Judicial Branch (LOPJ), and Article 12 of the Code of Civil Procedure (CPC).’ In this part of her motion, it is that Article 29, subsection 2), of the Organic Law of the Judicial Branch ‘was not cited by Judge Garro Vargas.’ For this Presidency, such numeral is comprised within the norms to be applied ‘in case of impediment, recusal, or excuse’ (Article 6 of the Law of Constitutional Jurisdiction). For the foregoing, there has been no omission on the part of the Presidency in analyzing the arguments of Judge Garro Vargas, and, on the contrary, it was a clarification made regarding the applicable norms.

VI.- Regarding the additional grounds for recusal of Judge Garro Vargas and the interpretation of Article 29, subsection 2), of the Organic Law of the Judicial Branch (II.- b and c). Judge Garro Vargas disagrees with the interpretation made by the Presidency of Article 29, subsection 2), of the Organic Law of the Judicial Branch. She considers that by using the article ‘the’ it refers to a determined, concrete, and specific ‘cause,’ not in generic terms. In her case, ‘there is a summation of interests that aggravate my personal situation,’ which are those of her brother and maternal aunt, already mentioned. She believes that if the reason for her enablement is that she is now a proprietary judge, ‘the disqualification of a proprietary Magistrate who has causes for recusal different from those that Substitute Magistrates and/or proprietary judges have would never be appropriate, and that does not seem reasonable.’ The manner in which this Tribunal, and not just the Presidency as will be seen, applies the cited numeral is not shared by Judge Garro Vargas. However, there are no reasons to reconsider or modify the position, reiterated over the years, for the specific case of Judge Garro Vargas.

There are two issues, intertwined, that must be addressed. On one hand, the grounds for recusal that Judge Garro Vargas has; just as all the judges, proprietary and substitute, of this Tribunal have cause for separation, and they have so indicated in the case file. On the other hand, given this circumstance, how the Tribunal must be composed.

The Law of Constitutional Jurisdiction provides that:

‘Article 4.- […] The Constitutional Chamber is composed of seven proprietary magistrates and twelve substitutes, all elected by the Legislative Assembly in the manner provided for by the Constitution. Its organic and disciplinary regime is that established in this Law and in the Organic Law of the Judicial Branch.

The Constitutional Chamber is not subject to the vacation plan established in the Organic Law of the Judicial Branch, and, consequently, it shall set the dates on which its members will take vacations, so that there is always a majority of proprietary magistrates.’ ‘Article 7.- It corresponds exclusively to the Constitutional Chamber to resolve on its own competence, as well as to hear the incidental questions that arise before it and the connected preliminary questions.’ For its part, the Organic Law of the Judicial Branch establishes, in what is relevant, the following:

‘Article 31.- In the absence of an express rule on impediments, excuses, and recusals, the provisions of the Code of Civil Procedure shall be followed, in any matter, except in constitutional jurisdiction, which shall be governed by its own norms and principles.’ ‘Article 29.- When, due to impediment, recusal, excuse, or other reason, a servant must be separated from hearing a specific matter, their absence shall be filled as follows: […] 2.- The Magistrates, by the substitute judges called for that purpose. The members of collegiate courts shall substitute for one another and, in the event that the cause covers all or the majority, by their substitutes.’ When the ground for recusal covers both proprietary judges (propietarios) and substitute judges (suplentes), the case must be heard by the proprietary judges, notwithstanding the ground for recusal and without disciplinary liability for them." From the transcribed norms, it is clear that the ordinary legislator provided that cases brought before this Court be resolved by the "proprietary judges (magistrados propietarios)" and only exceptionally by the substitute judges. The titular judges, the natural judge (juez natural) - Article 35 of the Political Constitution -, are the ones called upon to establish the precedents and the jurisprudential lines of this Court, which constitutes a guarantee of legal certainty for the justiciable party. Likewise, the ordinary legislator granted this jurisdiction the competence to resolve incidental questions, such as the integration of the Court, according to its own norms and principles developed over more than 30 years, which will be seen below. Finally, the civil procedural norms, such as Article 16 of the Civil Procedure Code - infra Considerando VIII - are of supplementary application in this jurisdiction.

Article 29, subsection 2), of the Organic Law of the Judicial Branch, as explained in the resolution whose reconsideration is requested by Judge Garro, is the solution that our legal system provides when the proprietary and substitute judges cannot hear a specific matter, in which case, in application of the principle of the natural judge, it will be the proprietary judges who hear it. The application of this norm to the judges of the Constitutional Chamber is not novel. Thus, to cite only a few of them, by resolutions at 10:15 a.m. on March 24, 2005 - File No. 04-011833-007-CO - and at 1:14 p.m. on March 3, 2008 - File No. 08-001177-0007-CO - the Presidency of this Court enabled one or more proprietary judges to hear those processes. Even recently, the Chamber itself, no longer the Presidency, reaffirmed this position:

"According to the provisions of the transcribed resolution, as well as that established in Article 14 of the Law of Constitutional Jurisdiction and numeral 29, subsection 2), of the Organic Law of the Judicial Branch - 'When the ground for recusal covers both proprietary judges and substitute judges, the case must be heard by the proprietary judges, notwithstanding the ground for recusal and without disciplinary liability for them' -, it corresponds to the proprietary judges to hear these matters by legal imperative, without disciplinary liability reaching them for this. The foregoing constitutes, then, a normative ground of justification that frees from all liability, including criminal liability, the judges who hear a matter in which the substitute judges, necessary to integrate the Court, have any ground for inhibition or impediment from hearing the same matter" (Judgment No. 2019-010861 at 9:20 a.m. on June 14, 2019).

In these exceptional cases, such as the present one where all proprietary and substitute judges have grounds for inhibition, the particular interest must yield to the public interest in the interests of the existence of the constitutional jurisdiction. "Privileged" grounds for recusal or "additional reasons" cannot weigh when practically all the members of the Court are inhibited from hearing the case and, by legal imperative, its hearing corresponds to the proprietary judges.

See, for example, File No. 17-006076-0007-CO, in which Judge Esquivel Rodríguez raised three recusals, all of them for different and objective reasons, which were rejected; or my case, where I formulated a second recusal for different and objective reasons, as did Judge Hernández Gutiérrez, and it was rejected.

Even in this file, Judge Hernández López raised, after her enablement, a recusal that was resolved in the following terms:

"The 'conflict', regardless of its degree, of all the constitutional judges, proprietary and substitute, of this Chamber was expressed in the recusals that each and every one of us formulated. Whether it is a greater or lesser degree is totally irrelevant, from the moment the court for this case was formed - supra resultandos 4 and 5 -, applying the provisions of numeral 29, subsection 2) of the Organic Law of the Judicial Branch, without entering into this type of assessment" (Resolution at 9:42 a.m. on October 10, 2019).

In the resolution of April 27, 2020, the Presidency did not ignore the existence of "additional reasons" of Judge Garro Vargas, such as that her brother and maternal aunt also have an interest in this action. Rather, the appointment of Judge Garro Vargas as a proprietary judge of this Court is an objective condition that yields before her personal interests. Note that the enablement of substitute judge Marta Esquivel Rodríguez, whose recusal was also accepted at the time, was not capricious or because she had fewer grounds for recusal than the rest of the substitute judges, but rather it was because "she currently forms part of the Constitutional Chamber, by virtue of having been designated, by lottery, to temporarily occupy the position that is vacant in the Court" (resolution at 9:07 a.m. on February 13, 2019). That position, as already stated, is occupied by Judge Garro Vargas, so, given the request of Judge Marta Esquivel Rodríguez, as the objective reason for which she formed part had disappeared, not her ground for recusal, the provisions of numeral 29, subsection 2), of the Organic Law of the Judicial Branch were applied and Judge Garro Vargas was enabled.

VII.- Regarding the reference to Judge Araya García (II.-d). Judge Garro Vargas maintains that her situation is different from that of Judge Araya García, as she has two additional grounds for recusal, so the cases cannot be assimilated. The reference made in the resolution of April 27, 2020, to the situation of Judge Jorge Araya García was to exemplify the case of a substitute judge who is recused and later appointed proprietary and enabled to hear the case; the same objective condition as Judge Garro Vargas, and at no time to compare or rank the personal or family interests of both in the case. Situations that, as already stated, yield before the public interest and the need to form the Court, by legal imperative, based on the provisions of Article 29, subsection 2), of the Organic Law of the Judicial Branch.

VIII.- Regarding the norms of the Civil Procedure Code (III. b). It is recalled that Article 4, paragraph 2, of the Law of Constitutional Jurisdiction provides that the organic regime of this Court is that established in that legislative body and the Organic Law of the Judicial Branch, in particular Articles 31 and 29, subsection 2), and that civil provisions, such as numeral 16 of the Civil Procedure Code, are supplementary, complementary norms for this jurisdiction. Note, moreover, as has been insisted upon throughout this resolution, that the enablement of Judge Garro Vargas was the product of an objective condition, such as her appointment as a proprietary judge of this Chamber. Finally, regarding the notification that Judge Garro Vargas finds lacking, she is not a party in this process, so judges are not usually notified of the resolutions issued in this file, except when judges have been challenged and they have indicated a means for receiving notifications. In any case, the lack of communication of the resolution would be a matter of its efficacy and not its validity - Articles 140 and 334 of the General Law of Public Administration. Nevertheless, this resolution will be communicated to Judge Garro Vargas.

IX.- Conclusion. The reconsideration of Judge Garro Vargas, whether as a formal appeal or an informal request, against the resolution of April 27, 2020, is inadmissible, according to Article 11 of the Law of Constitutional Jurisdiction and the precedents of this Chamber. Nor is the annulment of the aforementioned resolution appropriate, as no serious errors are observed in it, nor in the assessment of the facts, nor in the way the Court was constituted for this case: there was no omission in the analysis of the arguments of Judge Garro Vargas; the appointment of Judge Garro Vargas as a proprietary judge of this Court is an objective condition that yields before her personal interests, as this Court has repeatedly ruled in the case of other judges; and that objective condition makes it necessary to apply Article 29, subsection 2), of the Organic Law of the Judicial Branch; not the supplementary norms of the Civil Procedure Code.

Finally, in my note to Resolution No. 2020-015544, at 12:10 on August 20, 2020, I specified the following:

"A.- CONSTITUTIONAL JURISDICTION IS A SPECIAL JURISDICTION There is no doubt that the constitutional jurisdiction is different from the rest of the ordinary jurisdictions. Being the guardian of the principles of constitutional supremacy and the normative value of the Constitution, and guaranteeing the effective protection of fundamental rights, gives it a singular connotation. Regarding the mission of the Constitutional Chamber, this Court, in judgment No. 76-92 at 4:30 p.m. on January 15, 1992, established, in what is relevant, the following:

'I) The transcendence that decisions such as those in this case acquire, and the incidence they necessarily have on the actions of the country's public bodies, merits that the Chamber formulate a brief reflection, by way of a prologue, in relation to the mission that has been entrusted to it, by virtue of the constitutional norm that creates it and the Law of Constitutional Jurisdiction on which its work is based. The work of the Constitutional Court, as the most qualified doctrine highlights, is a defense - sometimes dramatic - of human rights, and, on occasions, the development and evolution of these toward clearer and more defined forms.' One must not lose sight that the design of the constitutional jurisdiction responds to the object of the constitutional legal disputes it is called upon to hear. On the one hand, we have the constitutional processes for the defense of the Constitution – an unconstitutionality action (acción de inconstitucionalidad), a consultation of constitutionality (consulta de constitucionalidad), a judicial consultation of constitutionality (consulta judicial de constitucionalidad), and conflicts of constitutional competences (conflictos de competencias constitucionales)-, designed for those disputes in which the violation of the constitutional principles of constitutional supremacy and the normative value of the Constitution is alleged, as well as fundamental rights, in this case, being enshrined by the Fundamental Charter and the International Human Rights Instruments in force in the Republic, in which case they are under the umbrella of the cited principles, in addition to the principle of constitutional rigidity. On the other hand, the constitutional guarantee processes - habeas corpus, amparo, amparo against private parties, amparo regarding the right of reply - when a violation of the fundamental rights that are enshrined in the Political Constitution or in the International Human Rights Instruments in force in the Republic is invoked in the legal dispute.

Without intending to be extensive, the particularity of this jurisdiction lies, among other things, in:

a.- It is a single-instance jurisdiction.

b.- It is a jurisdiction in which the jurisprudence and precedents of the Constitutional Chamber have erga omnes effects, except for itself.

c.- In view of the interests at stake, there is an ex officio procedural impulse, so the principle of party presentation is severely diminished; even in habeas corpus and unconstitutionality actions, withdrawal is not admissible (see, among others, judgments numbers 687-91 and 511-93).

d.- Finally, this Court has considered that the nature of the action is that of a complaint, in which there are no parties, given the extremely high interests at stake (see the resolution at 8:15 a.m. on November 4, 2005). The foregoing implies that, as a matter of principle, the acceptance of recusals and challenges in the constitutional jurisdiction must be very exceptional.

B.- THE INADMISSIBILITY OF THE NULLITY REQUEST Article 4, paragraph 2, of the Law of Constitutional Jurisdiction provides that the organic regime of this Court is that established in that legislative body and the Organic Law of the Judicial Branch. This last normative text, in its Article 31, recognizes the peculiarity of the Constitutional Jurisdiction by stipulating that in matters of impediments, excuses, and recusals '(...) it shall be governed by its own norms and principles.' It must be noted that one of the principles of Constitutional Procedural Law (Article 14 of the Law of Constitutional Jurisdiction) is that of the natural judge (Article 35 of the Political Constitution), according to which, no one may be judged by an ad hoc court or one specially appointed for the case '(...) but exclusively by the courts established in accordance with this Constitution.' For its part, Article 14 of the Law of Constitutional Jurisdiction establishes that the Constitutional Chamber and its jurisdiction are subject only to the Constitution and the Law. In the absence of an express provision, the following shall apply:

- the principles of Constitutional Law, as well as those of general Public and Procedural Law or, as the case may be, those of International or Community Law; - the General Law of Public Administration, - the Contentious-Administrative Procedure Code.

- And the Procedural Codes.

In the Law of Constitutional Jurisdiction, there is an express norm, since Article 11, second and last paragraph, establishes that there shall be no appeal against the judgments, orders with the character of judgments (autos), or decrees (providencias) of the constitutional jurisdiction. Ergo, it is not possible to invoke the second sentence of Article 14. Now, reviewing the legislative background of the Law of Constitutional Jurisdiction, we find the following element of judgment that helps us resolve the question in the terms and scope of a correct interpretation and application of the legal system. Let us see what we find in legislative file No. 10.273:

-TEXT RECOMMENDED BY THE COMMISSION APPOINTED BY THE EXECUTIVE BRANCH stated the following:

'Article 4: The judgments and orders with the character of judgments correspond to the Chamber in plenary session to issue, the others correspond to the President or, as the case may be, to the Judge designated for the instruction.

Against the resolutions issued by the Chamber in the processing and decision of the amparo, no appeal shall be admissible, except for a claim for liability when applicable. Nor shall any appeal lie against those of the president or the instructing judge, without prejudice to the power of the Chamber to revoke or modify them at any time or when resolving the appeal.

The judgments issued by the Chamber may only be clarified or added to at the request of a party if requested within three days.' (Folio 695).

-COMMENTS OF EDUARDO ORTIZ ORTIZ on the cited text:

'Art. 5 second paragraph. This paragraph can be greatly simplified and clarified with the following wording:

"Art. 5, second paragraph: 'There shall be no appeals against the judgments, orders with the character of judgments, or decrees of the constitutional jurisdiction."' It seems very inconvenient to me the power of the Constitutional Chamber to revoke or modify ex officio the resolutions of the President or Instructing Judge. It is a principle of procedural instability that should be suppressed.' (Folio 920).

Although it is true that in the subsequent folios of the cited legislative file we do not find any discussion on the opinion expressed by Professor Ortiz Ortiz, it is true that his comment resonated with the members of the legislative commission, proof of which is that the wording originally proposed by the Executive Branch was abandoned, eliminating the power of the Plenary of the Constitutional Chamber to revoke or modify ex officio the resolutions of its president or instructing judge. As is well known, the only case where an appeal against the president of the Constitutional Chamber is admitted, which is found in the Law of Constitutional Jurisdiction, is in Article 80, in its second paragraph, when it establishes that if compliance with what was ordered is not given, the president will deny the processing of the action. From this last resolution, revocation may be requested within three days, in which case the president will elevate the matter to the knowledge of the Constitutional Chamber so that it decides what is appropriate. In legislative file No. 10.273, on Article 80, it did not provoke any discussion.

It must be borne in mind that the request of Judge Garro Vargas does not accord with the summary nature of constitutional guarantee processes nor with the objectivity of constitutional defense processes. Even if we resort to the Civil Procedure Code, we have the norm that establishes - Article 17 - that the resolutions issued concerning recusal and challenge have no appeal whatsoever.

Finally, the filed nullity request is also not admissible, because the scenarios in which the Chamber has admitted this type of request have two necessary requirements: an erroneous assessment of the facts and harm to the parties due to the error. As stated in one of the questioned resolutions: a) not even the parties are empowered to raise a reconsideration of a resolution that resolved recusals, as is what is raised here; even if it is informally and not properly as an appeal; and b) that the Chamber can effectively, even ex officio, annul a resolution or judgment issued by the Court as long as it contains serious errors; a situation that does not occur in this case. In the sub-lite, the nullity request is motivated by an erroneous interpretation and application of the regulations, a point very different from that established by this Court. If this position were admitted, the logical and necessary consequence would be the absolute paralysis of the constitutional jurisdiction, for the elementary reason that any person dissatisfied with a resolution of this Court would file a nullity request invoking an erroneous interpretation and application of the legal norms.

Thus, for the reasons given in the interlocutory resolution and these that I add, I conclude that the request of Judge Garro Vargas is manifestly inadmissible.

C.- ON THE SUBSTANTIVE ARGUMENTS OF THE APPELLANT There are two central arguments presented by Judge Garro Vargas against the resolutions of the Presidency. Specifically, that the body was already integrated, in accordance with Article 16 of the Civil Procedure Code, which incorporates the procedural institute of the perpetuity of subjective jurisdiction (perpetuidad de la competencia subjetiva). The second, that there is an erroneous interpretation and application of procedural norms regarding recusals, which entails the nullity of the questioned resolutions. Regarding both arguments, it is necessary to be clear that the constitutional jurisdiction is a special jurisdiction and, consequently, is governed by its own rules regarding recusals and challenges. This follows from the harmonious interpretation of the norms that regulate the matter. Indeed, as set forth supra, from Articles 4, paragraph 2, 7, 14 of the Law of Constitutional Jurisdiction, as well as numeral 31 of the Organic Law of the Judicial Branch, the norms to be applied are those of the special jurisdiction, and not those of the other jurisdictions that are regulated in the norms of the Rite, and, when the latter must be applied, logically an exegesis or interpretation must be made that satisfies parameters of logic and legal technique. Of capital importance is Article 31 of the Organic Law of the Judicial Branch, which establishes clearly and precisely that the constitutional jurisdiction has its peculiarity, since in matters of impediments, excuses, and recusals '(...) it shall be governed by its own norms and principles.' (The bold does not correspond to the original). Starting from this idea, it is clear that the procedural norms apply only in those situations where there are no norms and principles in the constitutional jurisdiction, in the principles of Constitutional Law, as well as those of general Public and Procedural Law or, as the case may be, those of International or Community Law, the General Law of Public Administration, and the Contentious-Administrative Procedure Code. Now, since the factual scenario of when both proprietary and substitute judges have a ground for recusal is not regulated in the Law of Constitutional Jurisdiction, nor in the other supplementary normative sources in accordance with numeral 14 of the Law of Constitutional Jurisdiction, we must necessarily resort to numeral 29, subsection b), of the Organic Law of the Judicial Branch; but first of all, it is important to bring up the legislative background of Article 31 of the Organic Law of the Judicial Branch. Reviewing legislative file No. 10.753, which gave rise to Law No. 7333, which comprehensively reformed the Organic Law, we find that the current wording was not included in the opinion that the respective commission sent to the Legislative Plenary; the Plenary sends it back to the drafting commission for it to take into account the observations of the Supreme Court of Justice. It is in the report that the Supreme Court of Justice sends to the Legislative Assembly that the current wording is proposed, and in the sub-commission of the Ordinary Permanent Commission of Government and Administration that studied the bill, at folio No. 2673, the intervention of Judge Mora Mora appears, who expresses the following in the session of the cited body on May 27, 1992:

'Regarding (sic) Article 31.- What it brings is an exception regarding the Constitutional Jurisdiction, which I think is fine as it is.

The regime of impediments, excuses, and recusals of constitutional jurisdictions has always been different, because the intention is that Judges never shield themselves behind an impediment or an excuse to avoid resolving, and rather oblige them to resolve and be very restrictive regarding (sic) matters of impediments and excuses or recusals.

As the Constitution serves as the roof for the entire Legal System of a given country, easily following the traditional systems of impediments, excuses, and recusals, constitutional judges could avoid committing themselves by resolving matters brought before them, and that is why restrictive criteria regarding that are intended.

That exception that had been left out in the original wording is saved at this moment, and it seems to me convenient to accept the Court's criterion in this case.' (The bold does not correspond to the original). As is easily inferred from the text of the norm and its legislative background, in the constitutional jurisdiction, the constitutional Judges are called upon to resolve the questions presented, and the regime of recusals and excuses is extremely exceptional. Reviewing the origin of this norm, we undertook the task of reviewing the minutes of the Supreme Court of Justice. In minute 68-91 of the Full Court held on November 12, 1991, we find that it was Judge Piza Escalante who asked that the first paragraph of Article 31 of the Organic Law of the Judicial Branch be modified. Article X literally states:

'Judge Piza takes the floor to propose that the text of the first paragraph of Article 31 be modified as follows:

"In the absence of an express rule on impediments, excuses, and recusals, the provisions of the Civil Procedure Code shall apply, in any matter, except in the Constitutional Jurisdiction, which shall be governed by its own norms and principles." Judge Piza continues to speak to reiterate that his proposal returns to the classic rule that in the Constitutional Jurisdiction there are no excuses or recusals, because what is at stake is the Law, and that is how it was before in the Amparo and Habeas Corpus Laws and the provisions that regulated the unconstitutionality appeal, besides the fact that its rules are different from those of other Jurisdictions. The speaker adds that he makes this proposal because the Legislative Assembly did not leave an express rule in the Law of Constitutional Jurisdiction, and because, as it is an autonomous matter, one resorts to the general principles of the matter itself; for it has its own tradition and doctrine, with rules different from the others.

Judge Rodríguez took the floor to support Judge Piza's proposal, as it does not seem right to him that, because of the problems the Chamber has had, it should be subject to the rules of impediments, excuses, and recusals provided for other Jurisdictions, and as an example he cited some cases of some national importance.

Judge Piza's proposal was put to a vote, and it was accepted unanimously, except for Judge Zamora, who voted negatively, considering that the situation is provided for in the norm intended to be modified.' There is no doubt that the position of the Supreme Court of Justice resonated with the deputies and, consequently, they recognized by Law of the Republic the special nature of the Constitutional Jurisdiction, which in matters of recusals and challenges follows its own rules and principles.

Regarding the first grievance, it is clear that Judge Garro Vargas's condition changed since the resolution of her first recusal request as a substitute, given that she is now a proprietary judge. Similar to the case of Judge Araya García, whose recusal had been accepted when he was a substitute and, once appointed proprietary, was enabled for this case. That is, there is an objective condition in both cases, for which they are enabled to integrate the Court.

As all the judges of this Chamber, both proprietary and substitute, have some reason for recusal in order to form the Court - the Law does not speak of the same cause for recusal -, it is not assessed which judge might have a 'privileged' reason for separation, such as her relatives - brother and maternal aunt -, but rather the norms provided in the legal system to form the Court, such as 29, subsection 2) LOPJ. Regarding the ratio legis of Article 29 of the LOPJ, in judgment No. 2020-009188, the Constitutional Chamber established, conducting a historical analysis, that the current wording of numeral 29 of the Organic Law of the Judicial Branch was introduced by Law No. 7728 of December 15, 1997, which is a Law issued, according to the expression of Judge González Álvarez, to couple or make the necessary adjustments to adapt the structure of the Judicial Branch to the requirements of the new Criminal Procedure Code (see folio 105 of legislative file 12.992). In that reform to the Organic Law, in what is relevant, the sentence that is fundamental in the resolution of this question is introduced, when the following is stated: "When the ground for recusal covers both proprietary judges and substitute judges, the case must be heard by the proprietary judges, notwithstanding the ground for recusal and without disciplinary liability for them." Before this reform, this rule did not exist. Now, reviewing both the aforementioned legislative file and the minutes of the Full Court Nos. 3, 4, 5, 6, 8, 10, 11, 13, 15, 18, 20, 21, 24, 25, 29, 30, and 43 of the year 1997, we do not find any explanation of the reasons for introducing this norm into numeral 29 of the cited Organic Law. Having discarded the historical method, what corresponds is to make an interpretation of the regulations following other methods of interpretation, such as the literal, the teleological, and the systematic. But before analyzing in detail Articles 29 and 32 of the Organic Law of the Judicial Branch, we must bear in mind what, with accuracy, CABANELLAS reminds us '(...) that we must not distinguish where the law does not distinguish' or the legal aphorism '(...) when the law is clearly conceived, one must abide by its letter, and not distort it, under the pretext of penetrating its spirit.' (CABANELLAS, Guillermo, Compendio de Derecho Laboral, Tomo I, Buenos Aires, Bibliográfica Omeba, 1968, p. 234). The norm is categorical, in the sense that the judge bears no disciplinary liability whatsoever, that is, it is not the Presidency that enables the judge, it is the Law, and it exempts him from all liability. From the logical interpretation of this norm, we can extract several necessary conclusions without needing to strain the text. Firstly, when a ground for recusal covers proprietary and substitute judges, the case must be heard by the proprietary judges, that is, the norm categorically excludes the substitute judges and orders - note that the verb in imperative "must" (deberá) is used - that the matter be heard by the proprietary judges. Secondly, having excluded the substitute judges by legal imperative, they cannot form the Court as long as there are sufficient proprietary judges and the scenario of the cited subsection of 29 of the Organic Law of the Judicial Branch applies, even if a proprietary judge subsequently invokes another or other grounds for recusal.

And, finally, to include an alternate (suplente) who was excluded by law when there are sufficient proprietary judges (magistrados propietarios) because a ground for disqualification (causal) applies to them that also applies to the proprietary judges, would be to go against the legal text and to configure the Court contrary to the legal system. Based on this reasoning, it becomes irrelevant in this latter scenario whether the proprietary judge has additional grounds for disqualification, since it is legally impossible to include an alternate because the Law prohibits it; the Presidency of the Chamber has so interpreted it at different historical moments, as was made known to Judge Garro Vargas in one of the resolutions she challenges. Following reasoning contrary to that which the Presidency of this Court has established throughout its historical development would lead to a situation of paralysis and violation of the fundamental rights of those seeking justice, especially the right to effective judicial protection (tutela judicial efectiva). Indeed, if it is not possible to reinstate the alternates and in the hypothetical case that a motion of recusal (inhibitoria) is accepted for a proprietary judge under the argument that they have more grounds for recusal, the logical consequence would be that a fully constituted Court would never exist to resolve the constitutional legal controversy, with the consequent violation of the fundamental right, as well as the paralysis of the Court in a specific case. It will be said, contrary to what we are affirming, that the alternates could resolve the matter when a proprietary judge has additional grounds for recusal. However, this solution is contrary to the Law, since when a ground for disqualification covers both proprietary and alternate judges, the legal norm is clear that the matter must be resolved by the former, and never by the latter. It will be said, then, that the proper course is to apply Article 32 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial); however, this solution has two insurmountable objections. The scenario of missing proprietary and alternate judges is regulated by numeral 32 of the Organic Law of the Judicial Branch, which provides, in relevant part, as follows:

"Article 32.- Temporary vacancies shall be filled in the following manner:

1.- That of the President of the Court, by the Vice President or the Judge designated by the Court; those of the presidents of the Chambers, by the Judge with the greatest length of service in the respective court or, if equal in length of service, by the one with the oldest degree date in the Bar Association Registry (Catálogo del Colegio de Abogados). This latter rule shall apply in the Superior Courts or in any other collegiate court.

2.- Those of the other Judges, by alternate Judges, chosen by lot by the President of the Court. If the number of alternates is insufficient, the Legislative Assembly (Asamblea Legislativa) shall be requested, following the procedure for the selection of alternate Judges, to appoint those necessary for the case...".

As can be observed, the factual premise of the norm is when for some reason there are no judges and, in the event that there are not enough alternates, the Legislative Assembly must be requested, following the procedure for the selection of alternate judges, to appoint those necessary for the case. Consider the situation experienced by the Second Chamber of the Supreme Court of Justice (Sala Segunda de la Corte Suprema de Justicia) in which there were no alternates, since the Legislative Assembly had not appointed them, as mandated by Article 164 of the Fundamental Charter (Carta Fundamental), and a proprietary judge, for some justified reason – for example, an incapacity due to health reasons; it is under these circumstances that numeral 32, which we are commenting on, must be applied. The reason is elementary, since courts of justice - the Chambers of the Supreme Court of Justice - function with a structural and functional quorum of all their members; unlike other Courts around the world, for example: the Supreme Court of the United States of America or the European Constitutional Courts, in which the figure of the alternate judge or co-judge exists, however they function with a structural and functional quorum not of all their members, but a lower one, in the case of the Supreme Court of the United States with seven of its nine members and in the case of the Spanish Constitutional Court with eight of its twelve members. It can easily be concluded that this norm cannot be applied in the sub judice case, since in the scenario we are analyzing, there are alternate judges. Furthermore, it would be extremely serious if, in constitutional jurisdiction, the appointment of one or several ad-hoc judges by the Legislative Assembly were permitted; even more so when what is being challenged is a Law of the Republic approved by that fundamental organ of the State, which would evidently violate the principle of the natural judge (juez natural) - Article 35 of the Fundamental Charter - and the right to effective judicial protection, which, besides having to be prompt and fulfilled, must also be in accordance with the Law of the Constitution - values, principles, and norms. From all we have stated, the logical and necessary consequence is that it is the proprietary judges who must vote on the consolidated actions of unconstitutionality (acciones de inconstitucionalidad acumuladas); otherwise, the Court would be sine die disintegrated, with consequent harm to the plaintiffs.

One must also bear in mind an essential element of constitutional jurisdiction, which is the fact that the precedents and jurisprudence of the Constitutional Chamber (Sala Constitucional) are binding erga omnes, except for itself, meaning there is a clear tendency in the regulations governing it that it should be the proprietary judges who define and establish its major jurisprudential lines. The reason is simple and elementary; it is the only way to guarantee that the precedents and their jurisprudence will be maintained for a long time, which is consistent with a fundamental principle of the legal system, that of legal certainty (seguridad jurídica). A jurisprudential line or precedent will hardly be maintained over time if the rule of law is established by a Court composed of alternates or one where the alternate defines the matter due to the dissenting vote (voto salvado) of three of its proprietary members.

In these exceptional cases, like the present one, where all the titular judges (magistrados titulares) and alternates have a ground for disqualification, the particular interest must yield to the public interest for the sake of the stability of the constitutional jurisdiction. "Privileged" grounds or "additional reasons" cannot weigh when practically all members of the Court are disqualified (inhibidos) from hearing the case and, by mandate of Law, the titular judges are responsible for its hearing. This is why the application of 29.2) of the Organic Law of the Judicial Branch applies. In short, it is irrelevant under the scenario of Article 29.2 whether the grounds for disqualification or recusal (recusación) are one, two, or fifty. It is the Law that mandates how the Court is to be composed, as the Presidency of the Chamber has understood at different times, and in one of the resolutions challenged, precedents were cited to Judge Garro Vargas.

LXXXIV.- DOCUMENTATION SUBMITTED TO THE CASE FILE (EXPEDIENTE). The parties are warned that, if they have submitted any document on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not withdrawn within this period will be destroyed, pursuant to the provisions of the "Regulation on the Electronic Case File before the Judicial Branch (Reglamento sobre Expediente Electrónico ante el Poder Judicial)", approved by the Full Court (Corte Plena) in session No. 27-11 of August 22, 2011, Article XXVI and published in the Judicial Bulletin (Boletín Judicial) number 19 of January 26, 2012, as well as the agreement approved by the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), in session No. 43-12 held on May 3, 2012, Article LXXXI.-.

Therefore (Por Tanto):

Admissibility (Admisibilidad):

By unanimity, the following are rejected outright (se rechazan de plano):

• a)the grievances regarding procedural defects (vicios de procedimientos) referring to the violation of the autonomy of the State banks and the autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) due to lack of standing (falta de legitimación).
• b)the analysis of the grievance regarding the declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) of Law 9796 of December 5, 2019, as it is a matter for analysis in action of unconstitutionality 20-007715-0007-CO.

Regarding action of unconstitutionality 19-1720-0007-CO, the claims that seek to protect the generality of servants, officials, pensioners, and retirees are rejected outright due to lack of standing, in accordance with Article 75 paragraph 1) of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), on those topics in which the plaintiff cannot derive protection or amparo of her right because it is not a reasonable means to protect her right.

Legislative Procedural Defects (Vicios de procedimiento legislativo):

By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the consolidated actions are declared without merit (sin lugar) regarding the alleged procedural defects. Judge Castillo Víquez gives additional reasons regarding the violation of the principle of publicity (principio de publicidad). Judges Hernández López and Garro Vargas append separate notes. Regarding the issue of the alleged defects of the session of the Special Commission (Comisión Especial) of July 27, 2017, Judge Garro Vargas gives different reasons.

Judges Salazar Alvarado and Hernández Gutiérrez dissent (salvan el voto) and declare that the challenged law presents the essential procedural defect consisting of the lack of consultation with the Judicial Branch regarding the text approved by Parliament by absolute majority and not qualified majority, which affects it in its entirety (Article 167, of the Political Constitution), for affecting its organization, structure, functioning, and independence, a reason for which they deem it unnecessary to analyze other procedural and substantive defects raised by the plaintiffs; except those in which it is required to take a position so that there is a fully concurring vote (voto de toda conformidad) (Article 60.2, Civil Procedure Code).

Regarding the substantive grievances (agravios de fondo):

The consolidated actions of unconstitutionality are partially granted (se declaran parcialmente con lugar) and consequently, it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the percentage of contributions (cotizaciones) and the special solidarity and redistributive contribution (contribución especial solidaria y redistributiva) are annulled to the extent they exceed 50% of the gross pension amount corresponding to the retired or pensioned person. However, in accordance with Article 91 of the Law of Constitutional Jurisdiction, to avoid serious dislocations of security, justice, or social peace, the Chamber calibrates and dimensions the effects of this resolution, so that, starting from the month following the notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, in such a way that the tax burdens on the amount of the retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner. Judge Castillo Víquez gives different reasons. Judge Garro Vargas, for her own reasons, grants this part of the action of unconstitutionality, ordering the partial annulment of the provisions in Articles 236 and 236 bis of the Organic Law of the Judicial Branch; likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution regarding that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). Judge Hernández Gutiérrez gives additional reasons. Judge Rueda Leal and Judge Hernández López dissent (salvan el voto) and declare this part without merit, as they did in judgment No. 2020-19274 of 4:30 p.m. on October 7, 2020, inasmuch as, according to the express text of Article 67 of ILO Convention C102 of 1952 concerning Social Security (Minimum Standards), the pension or retirement may be reduced provided that 40% of a reference salary is respected, which does not appear to be automatically and evidently transgressed by the content of the challenged norms.

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the paragraph contained in Article 239 of the Organic Law of the Judicial Branch, as amended by the challenged Law number 9544, which states: "Based on the results of the actuarial studies, and with the authorization of the Superintendence of Pensions (Superintendencia de Pensiones), the Administrative Board (Junta Administrativa) may modify the initial parameters established in this law regarding the eligibility requirements, the benefit profile, as well as the contributions and quotas of the judicial servants and of the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime," is declared unconstitutional and consequently annulled.

Third. By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the phrase "(...) this reform shall not be applied to their detriment (no les será aplicada en su perjuicio)", contained in Transitory Provision II of Law 9544 of April 24, 2018, is interpreted to mean that it refers exclusively to persons who have consolidated the right to retirement or the right to a pension.

Fourth: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the requirement of 20 years of service demanded for the purpose of obtaining the survivor's pension (pensión por sobrevivencia) arising from Article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, according to Article 230 of Law 7333 of May 5, 1993, in the version prior to the reform.

The consolidated actions of unconstitutionality are declared without merit, and consequently, it is ordered:

First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez) regarding the allegations relating to the omission of taking into account gender differentiation in the retirement age between women and men, the actions are declared without merit. Judges Salazar Alvarado and Hernández Gutiérrez declare this part of the action without merit, solely for reasons of form given the absence of technical studies. Judge Garro Vargas gives different reasons. Judge Rueda Leal and Judge Hernández López dissent and partially grant the consolidated actions due to the existence of an unconstitutional omission in Law 9544, by not contemplating gender criteria to set a differentiated age so that women who contribute to the Judicial Branch Retirement and Pension System can retire or receive a pension with a shorter length of service.

Judge Hernández López also dissents and partially grants the consolidated actions inasmuch as:

• a)she considers it contrary to the Law of the Constitution to exclude from the benefits granted by Law 7333 those persons who, at the time of the enactment of Law 9544 challenged here, had 25 years or more of contributing to the Judicial Branch Retirement and Pension Fund.
• b)due to the existence of an unconstitutionality by omission in the challenged Law 9544, because the legislator does not give the same treatment before the law to Judicial Branch workers regarding the possibility of having incentives to postpone their right to retirement, according to the characteristics of their own regime.

Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the consolidated actions are declared without merit on all other claimed grounds.

Judges Castillo Víquez and Rueda Leal and Judges Hernández López and Garro Vargas append separate notes.

The declaration of the unconstitutional provisions, with the exception of what is indicated in the first point of the substantive grievances of this operative part - which takes effect starting from the month following the notification of the judgment - has declaratory and retroactive effects to the date of entry into force of the law, all without prejudice to rights acquired in good faith and consolidated legal situations. Notify the Legislative and Judicial Branches and the Administrative Board of the Judicial Branch Retirement and Pension System (Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial). Summarize this pronouncement in the Official Gazette La Gaceta (Diario Oficial La Gaceta) and publish it in full in the Judicial Bulletin. Notify.

Fernando Castillo V.

President Paul Rueda L.

Nancy Hernández L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

José Paulino Hernández G.

Additional reasons of Judge Castillo Víquez, in relation to the principle of publicity In addition to the reasons given in the judgment to reach the conclusion that there are no procedural defects in relation to the non-publication of the substitute text, I consider that the Regulation of the Legislative Assembly (Reglamento de la Asamblea Legislativa) only requires publication of the bill (proyecto de ley), not of the motions or substitute texts approved in the various parliamentary bodies (see Articles 115 to 117, 121, and 130 of the Regulation of the Legislative Assembly). Furthermore, the committee reports (dictámenes) on the bill are only published if the reporting committee so agrees (see Articles 83 and 131 of the Regulation of the Legislative Assembly), which confirms that, unless an express norm of the Parliamentary Statute so authorizes, neither motions nor substitute texts must be published in the official gazette La Gaceta. An additional reason for continuing within this line of reasoning is that, seeing things from another perspective, the publication of substitute texts approved within parliamentary bodies is futile, for the elementary reason that it would only make sense when novel concepts or regulations are introduced in them, an action prohibited by the Law of the Constitution – due to violation of the principle of connection (principio de conexidad) – or when the parliamentary body so agrees for a specific purpose or a purpose necessary for parliamentary work. On the other hand, the Chamber has admitted that the lack of publication, at a given procedural moment, does not always constitute an invalidating defect of the legislative procedure. In this regard, it stated: "The Chamber does not consider that this circumstance harms the principle of publicity, typical of the legislative procedure: this principle, in the first place, is not satisfied by a single act, such as, for example, the publication of the proposal, but is carried out in the different phases of the procedure, and in the very publicity to which the work of the legislative bodies is subjected. Furthermore, the court observes that once the proposal was admitted (in the case on which this opinion is based), and the report of the Commission referred to in subsection 3) of Article 195 was issued, it was published, as was customary. Consequently, the Chamber concludes that the failure to publish the constitutional reform proposal at issue here does not constitute a defect that invalidates the procedure." (See vote No. 11560-2001).

Furthermore, it must be borne in mind that the principle of publicity in the parliamentary procedure is not exhausted in the publication of the bill, but goes much further, since the Legislative Assembly, as a plural and democratic body, is subject to it at all its stages. In accordance with the foregoing, the Political Constitution, in its numeral 117, states that the sessions of the Legislative Assembly are public, unless for very qualified reasons of general convenience they are agreed to be secret by a vote of no less than two-thirds of the deputies present. This publicity of parliamentary work does not only refer to the right that the inhabitants of the Republic have to attend the galleries of the Legislative Assembly, which can only be cleared by the president of the Legislative Assembly when, by their signs of approval or disapproval – shouting, whistling, banging, or any other disorderly demonstration – the work of the Assembly is interrupted (see Article 27, subsection 12 of the Regulation of the Legislative Assembly) - the same occurs in the case of Permanent Commissions with Full Legislative Authority (Comisiones Permanentes con Potestad Legislativa Plena), where their presidents also have this power (see Article 56, subsection j of the Regulation of the Legislative Assembly) - but also to the right that mass media have to report on parliamentary work through various channels – radio, television, Internet, print press, etc. – and even the interest of political parties with parliamentary representation and deputies that their interventions – oral, written, or otherwise – be disseminated by all media, thereby fulfilling a double purpose: on the one hand, citizen control over the activity carried out by the members of Parliament, crucial in any democratic system, and on the other, the accountability, in this case immediately, of the deputies to the citizenry. Thus, the act of publishing the bill is one of the many manifestations that the principle of publicity has in the parliamentary procedure.

On the other hand, requiring the publication of substitute texts undermines one of the essential characteristics of Parliamentary Law: its ductility or flexibility, which negatively affects parliamentary work and, in some cases, can lead to the derailment of negotiated political agreements. And, it even goes against the purpose of Parliamentary Law. As is well known, the purpose of this Law is to allow Parliament to exercise its powers (legislative, self-regulatory, political control, integrative, jurisdictional, and administrative), especially: to be the channel through which the Legislative Assembly adopts, in a timely, democratic, and sovereign manner and in strict adherence to the principle of political pluralism, the fundamental political decisions, which are translated into final parliamentary acts, be they a legislative decree (decreto legislativo) or a legislative agreement (acuerdo legislativo). One must not lose sight of the fact that, due to parliamentary dynamics, political agreements within Parliament enjoy constant precariousness until they materialize, not only because there is an opportune and specific moment for their realization but also because of the permanent tension in which political actors find themselves due to the large number of political variables they handle at the same time, meaning that the longer the time to concretize the political agreement, the greater the chances of it breaking down. Hence the need for its timely and, in some cases, immediate execution, since political reality constantly changes and can ruin what was agreed. For this reason, when the Legislative Assembly is obligated, under the pretext of observing the principle of publicity in the parliamentary procedure, to publish substitute texts or motions in the official gazette La Gaceta, which implies a significant delay in the adoption of the political decision given the time such publication takes, it undermines the very nature of the parliamentary body and its dynamics, against one of the characteristics and purposes of Parliamentary Law, all of which is nonsensical in an essentially political body – some maintain that the functioning of the Chamber is a reflection of the continuation of the electoral contest on a different plane – such as the Legislative Assembly.

Fernando Castillo V.

Judge Case File No. 18-007819-0007-CO Resolution No. 2021011957 Note of Judge Rueda Leal. In the sub iudice case, I clarify that, aside from my dissenting vote, while I share the Majority's criterion regarding dismissing the claims made by the plaintiff parties, I find it fundamental to set forth the following particular clarifications regarding the reasoning to arrive at such a conclusion.

1- Regarding judgment No. 2018005758 of 3:40 p.m. on April 12, 2018, cited in the main vote.

This resolution is constantly cited in the main pronouncement of this proceeding, hence I consider it opportune to note what I stated on that occasion:

"XXII.- Note of Judge Rueda Leal. Concerning the publicity of the substitute text of September 13, 2016, I concur with the majority vote, since according to reiterated constitutional jurisprudence – which I deem entirely inappropriate to make exceptions to (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, among many other judgments) –, facultative consultations of constitutionality (consultas facultativas de constitucionalidad) are restricted to analyzing what is specifically questioned by the consultants, without the Chamber, through this procedural route, extending constitutional control motu proprio to other matters. Thus, regarding the claim raised, the reasoning outlined in this pronouncement responds to the cited jurisprudential line and is correct, therefore I subscribe to it.

On the other hand, I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension system. The right to a pension can be modified or limited due to public interest reasons supported by technical studies, such as the very viability of the system or fund, provided that such modifications do not affect its minimum content. In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides the fact that one cannot fail to notice the essential differences between the historical moment when it was agreed (year 1952) and the current situation, in which phenomena such as the significant increase in life expectancy and a lower birth rate definitively must be considered for the sake of a pension system based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center (Centro Centroamericano de Población) of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). In turn, the total fertility rate per woman dropped from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). In the same vein, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, and falls to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR)".

2.- Regarding the unsustainability of the Judicial Branch Retirement and Pension System (Régimen de Pensiones y Jubilaciones del Poder Judicial) and the need to reform it.

In this regard, I note that, faced with the imminent problem of insolvency of the Judicial Branch Retirement and Pension System, the legislator was under the obligation to take the necessary measures to guarantee its sustainability. Likewise, it is fundamental to consider that the principles of sustainability and social solidarity are inherent in any social pension system, and therefore must be weighed when assessing the constitutionality of the provisions that reformed the system. In this sense, I reiterate my dissenting vote to judgment No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I also cited in my dissenting vote to judgment No. 2020019274 of 4:30 p.m. on October 7, 2020):

"Dissenting vote of Judge Rueda Leal. With the customary respect, I dissent on three specific topics, as I express below.

(…)

Regarding the nature of the pension or retirement, I stated the following in judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018:

"…I clarify that the right to a pension is a subjective right that is conditioned by the sustainability of the pension system. The right to a pension can be modified or limited due to public interest reasons supported by technical studies, such as the very viability of the system or fund, provided that such modifications do not affect its minimum content.

In this sense, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, besides which one cannot fail to note the essential differences between the historical moment when it was agreed upon (year 1952) and the current juncture, in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitively be considered for the sake of a pension regime based on the principle of social solidarity and, I repeat, financial sustainability. Thus, according to the Central American Population Center of the UCR, life expectancy at birth in Costa Rica was 59.61 years in 1952 (men 58.52 / women 60.76), rising to 79.04 in 2010 (men 76.49 / women 81.71). Meanwhile, the total fertility rate per woman fell from 6.46 in 1952 to 1.83 in 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html and http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html). Similarly, according to the World Bank, life expectancy at birth in Costa Rica was 60.58 years in 1960 and reached 79.61 in 2015, while the fertility rate (births per woman) in Costa Rica was 6.5 children in 1960, falling to 1.8 in 2015 (see https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR and https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” The legal nature of this type of retirement or pension –which is not of individual capitalization– derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for such an assertion is found in the Political Constitution:

“ARTICLE 50.- The State shall procure the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. (…)

ARTICLE 74.- The rights and benefits referred to in this Chapter are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law may indicate; they shall be equally applicable to all factors concurrent in the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity.” As stated, this constitutional normativity has been developed by the Chamber to delineate the principle of solidarity. A good example of that development is the following:

“III.- On the principle of solidarity. An adequate reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not based on utilitarian individualism, but rather on a conception of man within the framework of the society in which he operates. The Political Constitution of 1949 starts from the notion that the human being cannot develop integrally on his own, but rather requires the participation of all other members of society. In fact, constitutional numeral 50 expressly imposes as one of the fundamental duties of the Costa Rican State the pursuit of an adequate distribution of wealth, an objective that cannot be achieved without the concurrence of its inhabitants. In other words, to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who possess less. The foregoing is a fundamental right of persons occupying lower strata, and a duty of all, mainly those most benefited by the economic system. Wealth in a society is not produced solely by those who own the means of production, but also by those who contribute to it with their labor, with their work. Consequently, the benefits produced by the market must be redirected so that they do not rebound solely in favor of certain social classes. Relating this principle to that of social justice, positivized in ordinal 74 of the Constitution, according to which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community, we have that the constituent sought to foster a society where solidarity was the general rule of coexistence; where the realization of small sacrifices in favor of great social goals was above individual interests; this is what is normally known as a social and democratic State governed by the rule of law (Estado social y democrático de Derecho). It could thus be affirmed that solidarity among members of the collectivity is a principle of constitutional rank, which would validly legitimize the imposition of certain burdens in favor of a just redistribution of wealth. (See in this same sense the rulings of this Chamber numbers 1441-92, 5125-93)” (Ruling No. 3338-99 of 6:45 p.m. on May 5, 1999).

Based on these premises, I consider that the analysis of the action of unconstitutionality (acción de inconstitucionalidad) must be carried out from another perspective, different from the one adopted by the majority vote. Indeed, I verify that the ruling evaluated only partially the legal elements relevant to the decision, since it focused solely on the objection of the claimant party, related to the principle of non-retroactivity (irretroactividad), without further reflection on the elements necessary for a pension regime to be sustainable and in accordance with the principle of social solidarity. In my opinion, a comprehensive and all-encompassing analysis of the legal question raised must be carried out, in order to avoid an inadequate extension of constitutional principles, as happened in this case with the principle of non-retroactivity. In other words, the Chamber should have first analyzed the nature of a pension regime and then examined the issue of the principle of non-retroactivity.

In the sub examine, I consider that a pension regime would only be constitutionally valid insofar as it was sustainable and respected the principle of social solidarity. In other words, if the legislator conceived an unsustainable regime, without some type of provision to maintain its budgetary balance, or openly regressive, then such a regime would be unconstitutional specifically with regard to such omission for failing to comply with the indicated postulates.

From the foregoing, I derive that the principle of social solidarity and that of the sustainability of the regime are inherent in every social pension regime from the moment of its creation and must be taken into account when interpreting the articles of such regimes, since they constitute tools that make it viable in the long term and enable the fulfillment of the social State governed by the rule of law.

The necessity for the regime to be sustainable is not an element available to the legislator, but a requirement also imposed by material reality. Such reality could not be denied even in the majority vote, which had to yield to the hypothesis that a pension regime might collapse:

“For this Court, only in an extraordinary case –a financial debacle of the State or of the respective retirement and pension regime–, duly proven –technique of the control of determining facts (control de los hechos determinantes)–, would it be possible to modify the original conditions under which the retirement or pension was granted, a scenario that is not present in this case despite the fiscal crisis through which the central government is passing –a fiscal deficit exceeding 3% of GDP and which could reach 7%–, since if adequate and effective measures are adopted to reduce the cited deficit in the short term, it is possible to comply with the constitutional principle of financial balance enshrined in constitutional numeral 176.” In other words, the majority criterion would accept legislation contrary to the principle of non-retroactivity in the event of a “debacle.” I consider such a contradiction unnecessary because I start from the premise that sustainability is an inherent principle of every solidarity-based pension regime and obliges its participants –all of them– to contribute to its maintenance. Indeed, the sustainability of the regime permeates the legal nature of the pensions and retirements linked to it. The hypothetical case raised by the majority of this Chamber clearly exemplifies such a link. The satisfaction of the pension or retirement is conditioned by the sustainability of the pension regime. If the regime becomes insolvent, as in the case of the “debacle,” then all participants in it will see their claims frustrated. Hence, it is feasible –even necessary– to modify the conditions of all pensions or retirements, provided that the modifications aim to protect the sustainability of the regime and respect the principle of reasonableness and proportionality. Compliance with the latter guarantees, for example, that such rights will not be emptied of content by a subsequent reform.

(…)

I conclude this argument by noting that constitutional article 34 does protect property rights that have already been received by the beneficiaries of a regime. In that sense, new legislation could not be enacted to seek the recovery of what was paid justly based on the repealed legislation.” 3.- Regarding Considerando XV.

In relation to the defect that the processing of the bill was not suspended for the period of eight business days according to the special procedure, I note that I indeed signed ruling No. 2012004621 of 4:00 p.m. on April 10, 2012, in which it was highlighted: “The duty of the various legislative bodies to adhere, zealously and scrupulously, to the previously designed special procedure (…) Consequently, before a special and fast legislative procedure, the previously established timeframes, stages, and requirements must be subject to a restrictive and rigorous interpretation, whereby the margin of flexibility admissible in ordinary procedures, through extensive interpretations, decreases notably to avoid an exception to the exception and, in general, a departure from the iter created, exceptionally, by an aggravated majority.” (Emphasis not in original). Precisely, the fact that the referred margin decreases notably does not mean that there is no margin at all. Now, in the sub lite, according to the reasoning of the majority vote, we are not facing a defect of such magnitude as to sustain a lack of constitutional relevance, with which I agree, since, I reiterate, even in the special procedures in question, although with less room, constitutional review always allows a distinction between substantial defects and those that are not.

4.- With respect to Considerandos XLV, XLVI, and XLVII.

Regarding the nature of the special, solidarity-based, and redistributive contribution, the final wording of the majority vote cites jurisprudence, according to which it is not assimilable to a tax, and concludes that it is a constitutionally valid limitation on the right to retirement, arising from the social character of that right. It then mentions that it is not a tax, but a parafiscal charge. It also indicates that, as a contribution to social security, it is a parafiscal contribution imposed by the State in the exercise of its power of imperium, which can only be created through a formal law. Likewise, it points out that it is a tax destined for an economic and social purpose.

In this regard, I must mention that, for the purposes of this action of unconstitutionality, my position is that the special, solidarity-based, and redistributive contribution is of a parafiscal nature and constitutes a type of tax. Precisely, its payment is mandatory for those who fall under the assumption of the norm and, in accordance with numeral 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), the resources obtained from it go to the Judicial Branch Retirement and Pension Fund, that is, to the same fund to which the taxpayers belong. Moreover, this type of contribution must be legally authorized, so the Legislative Assembly is competent to establish the tax and define its elements.

On the other hand, although it is alleged that there is double taxation with the general contribution and the special, solidarity-based, and redistributive contribution, I clarify that the latter progressively taxes only the highest pensions and retirements, thereby aiming to provide sustainability to the regime to which they belong. In that sense, I consider that a priori this does not constitute double taxation, but rather the establishment of an additional tax burden on those who have greater economic capacity. Although both components form part of the income of the Judicial Branch Retirement and Pension Fund, it is no less true that they are based on different assumptions: on one hand, there is the general contribution of the pensioner or retiree to the regime, and on the other, the contribution that those with the highest pensions must pay. In that sense, numeral 71.1 of ILO Convention C102 –Convention concerning Social Security (minimum standard)– stipulates that the cost of the benefits granted in application of that convention and the administration costs thereof “shall be borne collectively by way of social security contributions or taxation, or both, in a manner which avoids hardship for persons of small means and takes into account the economic situation of the Member and of the classes of protected persons.” In other words, that international instrument enables the financing of the regime by two means simultaneously, so that persons of lower income are not burdened with excessively onerous charges. Ergo, it is appropriate, besides the general contribution of working and retired persons, to impose a parafiscal tax burden destined to tax solely the highest pensions and retirements that were granted in light of much more beneficial prior conditions.

In addition, I must clarify that, for the purposes of varying the conditions of a pension regime and assigning special contributions to correct a situation of insolvency, it is indeed necessary to demonstrate, through technical studies, the insolvency of the regime and the suitability of the corrective measures. The foregoing is essential, unless the benefits are provided for in absolutely and manifestly unconstitutional norms, in which case the magnitude of the defect merits the suppression of the provision without recognizing rights. In this sense, legal provisions that are blatantly unlawful from their foundation cannot be perpetuated, for example, such as a lifetime pension for the sons and daughters of legislators or receiving absurd and exorbitant benefits. In these latter scenarios, I have affirmed that their effects should rightly be considered as non-existent for the legal system from the very moment of their creation. On this topic, I gave different reasons in ruling No. 2020019274 of 4:30 p.m. on October 7, 2020, in these terms:

“V.- Different reasons regarding the substantive claims related to Laws No. 9381 and 9388. Before addressing the substantive allegations, it is important to be clear that what these norms do is eliminate the 30% annual increase that a restricted group of pensioners had been enjoying, and change it for one based on the increase in the cost of living. Precisely, the crux of the matter consists of defining whether such a reform is in accordance with the Law of the Constitution.

In the first place, I estimate that the 30% annual increase that some persons under the regime known as Hacienda-Diputados enjoyed, in itself signifies a gross and impossible-to-justify abuse, an injury to the constitutional order of such overwhelming magnitude, that from its very genesis it configures what I term ‘a non-existent legal norm’ for reasons of unconstitutionality, in application mutatis mutandi of the doctrine of the non-existent legal act for reasons of legality, a stance held by a relevant sector of legal science.

As occurs in the sub examine, thanks to the particular gravity of the violation of the constitutional order regarding the especially excessive privilege that has been conferred upon a specific group (nothing less than a 30% annual increase in pensions without any consideration of the state of the economy and the real value of the pension granted), I consider that we are not dealing with the mere nullity of a regulation due to an ordinary jurisdictional declaration of unconstitutionality, but rather that, in this extraordinary situation, the reestablishment of the constitutional order demands a much more drastic action than simple nullity. Non-existence designates a deeply gross unconstitutionality of the challenged norm (even, in another process, it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element at the very moment of the norm's emergence –the object of the action– is noted.

Precisely, due to that extreme defect in the norm's own genesis, it is improper to preserve the effects derived from manifestly unconstitutional, unreasonable legal provisions lacking any justification, such as the economic favors granted against the most basic elements of social justice and the sustainability of a pension regime. These are provisions blatantly unconstitutional at their base, thanks to which the excessive privileges granted by them must be considered as legally non-existent.

The foregoing becomes even more evident and notorious given the harsh economic reality of the country and the conditions of the other regimes. Hence, a legal reform that changes that fixed revaluation method for one based on objective criteria, such as the increase in the cost of living, not only amends an excessive and definitively unconstitutional privilege due to violation of the principle of sound management of public funds, but also contributes to social justice.

Following the same line of my dissenting vote (voto salvado) in ruling No. 2018-19030 of 5:15 p.m. on November 14, 2018 (which I cited supra) and the reasoning I developed above regarding the principle of non-retroactivity, I consider that sustainability is an inherent principle of every solidarity-based pension regime. Hence, I deem it constitutionally valid, in accordance with the principle of social solidarity, for burdens to be imposed and the conditions of the highest pensions or retirements to be modified, provided that the adjustments aim to safeguard the sustainability of the pension regime and, in addition, respect both the principle of reasonableness and proportionality, as well as the fundamental right to human dignity of older adults. Note that, as a thesis of principle, it is valid that, through a pension or retirement increase mechanism, the beneficiary's pension maintains its value in real terms in relation to purchasing power and the vicissitudes of the passage of time, but not that the pension or its increase methodology serve as an instrument to unjustifiably and whimsically enrich a few persons.

In the sub lite, it cannot be unreasonable or disproportionate to eliminate a grotesque and excessive privilege such as the 30% annual increase. On the contrary, what is entirely unreasonable and disproportionate is to safeguard an increase of such magnitude for a restricted group of persons. It is important to underline that, concerning the amounts of the pensions, as I indicated in the preceding considerando, the legislator, through other norms, set minimums exempt from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts for older adults, especially in the cases of those who benefited from 30% annual increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of the beneficiaries safeguard the dignity of the person while being proportional, reasonable, and justified, a purported immutability of the legal system by appealing to consolidated legal situations is unsustainable, as these must yield before the principles of social solidarity and sound management of public funds. Based on the foregoing, the legislator has the freedom to regulate the readjustment mechanisms for pensions of regimes that are in a sustainability crisis or grant openly disproportionate and grotesque privileges.” Likewise, I must specify that, as I stated in my dissenting vote regarding Considerando XLI of this pronouncement, the 50% ceiling established by the Majority as the maximum limit for contributions and deductions was based on a forced interpretation of numeral 71.2 of ILO Convention C102, since article 67 of that international instrument is the one that applies to reductions in pensions.

In this sense, ordinal 71.2 regulates:

“2. The total of social security contributions payable by the protected employees shall not exceed 50 per cent of the total of the resources allocated to the protection of employees and their wives and children. In order to ascertain whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefit and benefit in respect of employment accidents and occupational diseases, if the latter are provided by a special branch.” For its part, ordinal 67 of the convention stipulates:

“Article 67 With regard to any periodical payment to which this Article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or according to a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other means of the family of the beneficiary exceed prescribed substantial amounts or substantial amounts fixed by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and the other means, after deduction of the substantial amounts referred to in subparagraph (b), shall be sufficient to maintain the family of the beneficiary in health and decency, and shall be not less than the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid under the Part concerned exceeds by at least 30 per cent the total amount of benefits which would be obtained by applying the provisions of Article 66 and the following provisions:

(i) Article 15, subparagraph (b), for Part III; (ii) Article 27, subparagraph (b), for Part V; (iii) Article 55, subparagraph (b), for Part IX; (iv) Article 61, subparagraph (b), for Part X.

SCHEDULE TO PART XI. PERIODICAL PAYMENTS TO STANDARD BENEFICIARIES Part \t Contingency \t Standard beneficiary \t Percentage III \t Sickness \t Man with wife and two children \t 45 IV \t Unemployment \t Man with wife and two children \t 45 V \t Old age \t Man with wife of pensionable age \t 40 VI \t Employment injury:

\t \t \t \t \t Incapacity for work \t Man with wife and two children \t 50 \t \t Invalidity \t Man with wife and two children \t 50 \t \t Survivors \t Widow with two children \t 40 VIII \t Maternity \t Woman \t 45 IX \t Invalidity \t Man with wife and two children \t 40 X \t Survivors \t Widow with two children \t 40 Consequently, as can be observed from reading the cited numerals, in the final wording given by the Majority, the legal-normative meaning of numeral 71.2 is unnecessarily changed to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of ordinal 67 of the international instrument, which specifically regulates matters concerning the limitations that may be imposed on pensions. In addition, note that article 71.2 refers to the percentage of social security contributions payable by employees in relation to the total resources allocated to said protection; that is, such norm regulates “employees” (economically active population), but not “pensioners or retirees.” Starting from the foregoing, consistent with the line I have been maintaining, it is not evident that numerals 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the barrier of 40% of a reference wage, contemplated in ordinal 67 of ILO Convention C102. Observe, furthermore, that the 55% limit, set in articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% is related to a reference wage, such that it is in the sphere of the application of the legal norm where it must be assessed whether, in any specific matter, the barrier contained in the international instrument is superimposed on the parameter provided for in the legislation.

Based on the foregoing, I dissent from the assertion of the final version of the Majority ruling to the effect that the contribution only becomes confiscatory insofar as it exceeds 50% of the burdens that a person must bear on their pension or retirement, since, as I indicated supra, I estimate that the parameter is another and its automatic and evident transgression is not evident from the content of numerals 236 and 236 bis of the Organic Law of the Judicial Branch.

5.- Regarding Considerandos L and LI.

In these considerandos, it is asserted that the social security contributions and contributions cannot exceed 50% of the gross amount of the pension in accordance with the provisions of ruling No. 2020-19274; however, concerning this point, I reiterate my position that the 55% ceiling regulated in ordinals 236 and 236 bis of the Organic Law of the Judicial Branch is not unconstitutional per se. There, I also addressed the possibility of imposing, besides the mandatory contribution to the regime, an additional special contribution on the highest pensions. Consequently, I refer to the reasoning set forth in the preceding section regarding these topics.

Now, it is important to mention that Law No. 9544, when adding article 236 bis, stated that the special contribution applied to the excess over the sum of ten base salaries (salarios base) of the lowest-paid position in the Judicial Branch (at the time the law entered into force, on pensions exceeding ¢4,138,000.00 according to the salary index, see https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial). However, it is worth clarifying that subsection a) of this norm was subsequently reformed by Law No. 9796 of December 5, 2019, and set the contribution based on the excess over the sum of six base salaries of the lowest-paid position in the Judicial Branch (in the first half of 2021, on pensions exceeding ¢2,602,800.00 according to the salary index https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

In addition, Law No. 9544 regulated the application of the special contribution in a staggered manner: “a) On the excess over the limit established in article 225 and up to twenty-five percent (25%) of said limit, they shall contribute thirty-five percent (35%) of such excess. b) On the excess over the preceding margin and up to a further twenty-five percent (25%), they shall contribute forty percent (40%) of such excess. c) On the excess over the preceding margin and up to a further twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess. d) On the excess over the preceding margin and up to a further twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess. e) On the excess over the preceding margin, they shall contribute fifty-five percent (55%).” Hence, the exempt amount and the staggered contribution set on pensions exceeding four million colones guarantee sums that are more than dignified for the satisfaction of the needs of pensioned and retired persons, including older adults. Likewise, I consider that the special contribution is progressive and gradual on the highest pensions, without this, together with other contributions, charges, and deductions, being able to exceed 55% of the total gross amount of the pension.

In that regard, not only was it not demonstrated that the amount of the pension prevented the pensioners from living with dignity or that it was insufficient, but, additionally, it falls within the scope of application of the legal norm to assess whether, in any specific matter, the barrier contemplated in the international instrument (paragraph 67 of Convention C102 of the ILO) is superimposed on the parameter set forth in the legislation.

I likewise reiterate that the special contribution imposed on the highest pensions constitutes a measure in accordance with the principle of social solidarity and, furthermore, is reasonable in view of the imminent insolvency problem presented by the Pension and Retirement Regime of the Judicial Branch.

Finally, I do not consider that the deduction of five per thousand (5 per 1000) from the salaries and pensions allocated to finance the operation of the Administrative Board of the Judicial Branch Retirement and Pension Fund is openly disproportionate or unreasonable. In the same manner, if any of the parties considers that it exceeds the maximum ceiling for quotas, contributions, and deductions, it may file the corresponding claims so that these may be adjusted.

6.- Regarding recital LIV.

Regarding this recital, I must emphasize that constitutional paragraph 34 embodies the principle of non-retroactivity and the protection of acquired rights and consolidated legal situations:

“ARTICLE 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.” With respect to what is regulated in this ordinal, the Chamber stated in judgment No. 2765-97 at 3:03 p.m. on May 20, 1997, “The concepts of “acquired rights” and “consolidated legal situations” are closely related in constitutionalist doctrine. It is possible to affirm that, in general terms, the former denotes that consummated circumstance in which a thing—material or immaterial, whether a previously foreign good or a previously non-existent right—has entered (or affected) the patrimonial sphere of the person, such that the latter experiences a verifiable advantage or benefit. For its part, the “consolidated legal situation” represents not so much a patrimonial increase, but rather a state of affairs fully defined in terms of its legal characteristics and its effects, even if these have not yet been extinguished. What is relevant regarding the consolidated legal situation, precisely, is not that those effects still persist or not, but rather that—by virtue of a legal mandate or a judgment that has so declared it—a clear and defined rule has already emerged in legal life, connecting a factual premise (conditional fact) with a given consequence (conditioned effect). From this perspective, the person’s situation is given by a logical proposition of the ‘if…, then…’ type, that is: if the conditional fact has occurred, then the ‘consolidated legal situation’ implies that the conditioned effect must necessarily also occur. In both cases (acquired rights or consolidated legal situations), the legal order protects—rendering it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty.” In this regard, it seems important to me to specify that the sums received before the entry into force of Law No. 9544 do constitute acquired rights and, in fact, the challenged norms do not affect them since they have already entered the patrimonial legal sphere of the pensioned persons. However, it is inadmissible to maintain that the pensions they have received constitute an acquired right to receive the same amount in future months, since they are not consummated circumstances and, evidently, have not yet entered the person’s patrimonial sphere.

Now, regarding the alleged violation of consolidated legal situations, even though, as a matter of principle, the conditions under which persons retired or became pensioned must be respected, this does not mean that the highest benefits cannot be subjected to progressive tax charges aimed at correcting some insolvency situation of the regime and thereby contributing to its sustainability. Likewise, changing the conditions for opting for retirement for active civil servants is not illegitimate either, because they only have an expectation of a pension or retirement, except when they are close to acquiring the right (within the following 18 months, as endorsed by the Chamber’s jurisprudence and indicated in recital LXIX of this judgment).

7.- Regarding recitals LV, LVI, LVII, and LVIII.

These recitals address the allegations of the plaintiff parties in that they accuse that the application of norms 236 and 236 bis of the Organic Law of the Judicial Branch to retired older adults and beneficiaries of the Judicial Branch Retirement and Pension Regime is abusive and arbitrary, since it aggravates their socioeconomic conditions and has implied an abrupt decrease in their income, which injures national and international regulations concerning the protection of older adults, their right to quality of life, and to enjoy a dignified old age.

Regarding these points, I refer to the considerations developed by me in the previous points concerning general and special contributions, as well as other charges. I reiterate that the 50% bounded by the Majority as the maximum limit of contributions and deductions was based on a forced interpretation of paragraph 71.2 of Convention C102 of the ILO, since Article 67 of that international instrument is the one that applies to reductions in pensions. In that sense, it is not evident that paragraphs 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% barrier of a reference salary, contemplated in ordinal 67 of Convention C102 of the ILO. It should also be observed that the 55% limit, set in Articles 236 and 236 bis of the Organic Law of the Judicial Branch, is related to the gross amount of the pension, while the conventional 40% is related to a reference salary, so it is in the scope of the application of the legal norm where it must be assessed whether, in any specific matter, the barrier contained in the international instrument is superimposed on the parameter provided in the legislation.

Moreover, there is no support for affirming that the questioned provisions violate the international protection that older adults enjoy, since not only are measures being taken to safeguard the sustainability of the regime, but also, in principle, sufficient income is being guaranteed to the pensioned and retired persons. In this sense, I reiterate that the exempted amount from the special contribution and its staggered levy on pensions of more than four million colones contemplates sums more than dignified for satisfying the needs of an older adult.

8.- Regarding recital LXX.

As for my criterion for considering inadmissible the claim for declaration of unconstitutionality by connection of Law No. 9796 of December 5, 2019, I limit my argumentation to the reasoning set forth by the majority vote with the exception of what is proposed in the last paragraph, since non-compliance with the budget assumption of Article 89 cited entails a more than sufficient reason to dismiss this aspect of the action.

9.- Concerning recital LXXX.

In relation to this recital, I clarify that elucidating whether or not there were changes in the employment contracts of Judicial Branch civil servants is a matter properly to be ventilated in the ordinary jurisdiction, but not in an unconstitutionality action.

Paul Rueda L.

Res. No. 2021011957 Dissenting vote of Magistrate Rueda Leal in relation to recital XLI. In the sub examine, the unconstitutionality of Law No. 9544 is accused, insofar as it amended ordinal 236 of the Organic Law of the Judicial Branch and added paragraph 236 bis to that normative body. It is reproached that both ordinals established a maximum ceiling of 55% for deductions with respect to the gross retirement amount, which they deem excessive and contrary to the fundamental right to retirement.

The challenged norms have the following content:

“Article 236- The Judicial Branch Retirement and Pension Fund shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees, as well as of the retirements and pensions payable by the Fund, a percentage that shall be withheld from the corresponding periodic payment.
• 2)An employer contribution from the Judicial Branch of fourteen point thirty-six percent (14.36%) on the salaries and wages of its employees.
• 3)A State contribution that shall be a percentage of the salaries and wages equal to that established for the Disability, Old-Age, and Survivors' Regime of the Caja Costarricense de Seguro Social (CCSS).
• 4)The returns and other benefits that the Fund produces or may come to generate.

In no case shall the sum of the mandatory contribution and the special, solidarity-based, and redistributive contribution and, in general, the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund, represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the mandatory contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund.

Article 236 bis- Special, solidarity-based, and redistributive contribution of pensioners and retirees In addition to the common quota established in the previous article, pensioners and retirees whose benefits exceed the amounts to be set shall contribute in a special, solidarity-based and redistributive manner, in accordance with the following table:

• a)On the excess over the ceiling established in Article 225 and up to twenty-five percent (25%) of said ceiling, they shall contribute thirty-five percent (35%) of such excess.
• b)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty percent (40%) of such excess.
• c)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute forty-five percent (45%) of such excess.
• d)On the excess over the previous margin and up to an additional twenty-five percent (25%), they shall contribute fifty percent (50%) of such excess.
• e)On the excess over the previous margin, they shall contribute fifty-five percent (55%).

In no case shall the sum of the special, solidarity-based, and redistributive contribution and the totality of deductions applied by law to all pensioners and retirees of the Judicial Branch Retirement and Pension Fund represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.

The resources obtained from the special, solidarity-based, and redistributive contribution established in this law shall enter the Judicial Branch Retirement and Pension Fund.” Regarding the maximum percentage of deductions from pensions, the Majority vote partially transcribes what was provided in judgment No. 202019274 at 4:30 p.m. on October 7, 2020. In addition, it indicates that ordinals 236 and 236 bis of the Organic Law of the Judicial Branch (amended by the challenged Law No. 9544) are unconstitutional, as both set 55% as the maximum ceiling for legal deductions, which exceeds by 5 percentage points the maximum established in the cited resolution. Likewise, it annuls the percentage of quotas and the special contribution insofar as it exceeds 50% of the gross amount of the pension due to the retired or pensioned person.

However, I respectfully depart from the Majority’s criterion and dismiss the appeal based on these reasonings.

As I indicated in my dissenting vote to judgment No. 202019274 at 4:30 p.m. on October 7, 2020, the percentage established by the Majority as the maximum limit for contributions and deductions (50%) was based on a forced interpretation of paragraph 71.2 of Convention C102 of the ILO, since Article 67 of that international instrument is the one that applies to reductions in pensions. On that occasion, I stated:

“III.- Dissenting vote regarding the substantive claims related to Laws Nos. 9380 and 9383. The legal premise of the majority vote, on which most of its line of argument is based, starts from the assumption that Article 71.2 of the ILO Convention C102 of 1952 -Social Security (Minimum Standards) Convention- is applicable to pensioners and retirees. Said provision states:

"2. The total of insurance contributions borne by the protected employees shall not exceed 50 percent of the total resources allocated to the protection of employees and the spouses and children of these. To determine whether this condition is met, all benefits provided by the Member, in application of this Convention, may be considered as a whole, except family benefits and, in the case of employment injury and occupational diseases, if these latter depend on a ‘special’ branch." Since the norm refers to "employee," the majority is obliged to specify the meaning of that term, given that, evidently, it only alludes to active workers. In this regard, the principal vote of this proceeding states:

"It remains to be determined whether 'employee' means only the worker before acquiring the right to the pension due to the advent of the formal and substantive conditions of the right, or whether it is possible to understand that employee also refers to another type of beneficiary of the system. In the Chamber's criterion, a broader interpretation must be given that includes not only the active worker, to admit that, in effect, the pensioner or retiree would be included in this concept. In fact, even anticipating what will be said later, this position is compatible, from a legal and economic point of view, with the fact that the pensioner or retiree receives a deferred salary that they built with their contributions throughout their working life. It cannot even be ignored that, in the Committee of Experts' document, the concept of employees evolves when it refers to 'insured persons.' Thus, said concept must be assimilated to both obligated parties, as potential and current insured persons: pensioner and employee. Note that the cited study emphasizes that there is no straitjacket for States; on the contrary, the approach must respond to national contexts, and the evolution of systems cannot be ruled out in order to agree on a solidarity-based financing system and good governance within the framework and evolution of human rights, as will be discussed further below. If the provision seeks to achieve a balance, it is perfectly tenable that it should include all those who receive a pecuniary sum as a result of the agreed benefit, because in that sense, it distributes that burden among all participants, which is what the international norm really seeks to establish. This interpretation would replicate positively with the already cited Committee of Experts. Consequently, it must be understood that 'employee' or 'insured person' has a broad meaning, and that it is not a term that excludes pensioned or retired persons." Based on the foregoing, the Chamber, in the principal vote, concludes that Laws Nos. 9380 and 9383 violate the second paragraph of paragraph 71 of ILO Convention No. 102 by establishing a ceiling greater than 50%. Likewise, the majority considers that the 5% excess set by the legislator implies a violation of the hard core of the right to retirement or pension, to the extent that the benefits were reduced in proportions greater than those permitted by international labor law.

Regarding the above, the undersigned dissents from this hermeneutics, because it rests on an erroneous premise stemming from a technical confusion regarding basic legal notions.

Firstly, ordinal 71.2 of ILO Convention C102 of 1952 -Social Security (Minimum Standards) Convention-, refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, the employee, according to the referenced norm, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of employees and the spouses and children of these, that is, of the total resources financed through the other contributions (from the employer and the State).

Now, it is indubitable that the express text of the Convention’s norm regulates "employees"; that is, the economically active population, without it being possible to validly infer from any ILO study the conclusion reached by the majority that it also applies to "pensioners." The most serious aspect of the foregoing is that the Chamber, through jurisprudential means, changes the positive text of a conventional norm ratified by Costa Rica through the competent instances. In this way, it changes the legal-normative meaning of the provision contained in the international instrument for the purpose of forcibly adapting it to the specific case, which notoriously concerns a matter alien to the object of the sub lite—the salary—thus ignoring the existence of other norms of the ILO Convention that punctually and concretely regulate matters concerning pensions and the limitations that can validly be imposed on them for the sake of the system's financial stability and social solidarity. In this regard, Part XI "Calculation of Periodical Payments," contains the following provision:

"Article 67 With respect to any periodic payment to which this Article applies:

(a) the amount of the benefit shall be determined according to a prescribed scale or according to a rule set by the competent public authorities, in conformity with prescribed rules; (b) the amount of the benefit may be reduced only to the extent that the other resources of the beneficiary's family exceed appreciable sums prescribed or set by the competent authorities, in conformity with prescribed rules; (c) the total of the benefit and the other family resources, after deducting the appreciable sums referred to in subparagraph (b) above, shall be sufficient to ensure the family healthy and proper living conditions, and shall not be less than the amount of the benefit calculated in conformity with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed fulfilled if the total amount of benefits paid, for the part in question, exceeds by at least 30 percent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:

(i) subparagraph (b) of Article 15, for Part III; (ii) subparagraph (b) of Article 27, for Part V; (iii) subparagraph (b) of Article 55, for Part IX; (iv) subparagraph (b) of Article 61, for Part X.

SCHEDULE ANNEXED TO PART XI.- PERIODIC PAYMENTS TO STANDARD BENEFICIARIES Parts \t Contingencies \t Standard Beneficiaries \t Percentage \n\n\n\nIII \t Sickness \t Man with spouse and two children \t 45 \n\n\n\nIV \t Unemployment \t Man with spouse and two children \t 45 \n\n\n\nV \t Old Age \t Man with spouse of pensionable age \t 40 \n\n\n\nVI \t Employment Injury and Occupational Diseases:

\t \t \n\n\n\n \t Incapacity for work \t Man with spouse and two children \t 50 \n\n\n\n \t Invalidity \t Man with spouse and two children \t 50 \n\n\n\n \t Survivors \t Widow with two children \t 40 \n\n\n\nVIII \t Maternity \t Woman \t 45 \n\n\n\nIX \t Invalidity \t Man with spouse and two children \t 40 \n\n\n\nX \t Survivors \t Widow with two children \t 40 (The emphasis does not correspond to the original).

Ergo, according to the literal and explicit text of the Convention, for the old-age pension to be able to be reduced and, in this way, in principle ensure the family healthy and proper living conditions, such benefit must reach at least 40 percent of a reference salary.

As for this point, there is indeed an ILO study. Precisely, at the International Labor Conference, 76th Session 1989, "The protection of old age through social security, general study of the Committee of Experts on the application of conventions and recommendations," it was indicated:

"Level of benefits 130. Under the schedule annexed to Part XI of Convention No. 102 relating to periodical payments, the old-age benefit for a standard beneficiary - a man with a spouse of pensionable age' - must reach 40 percent of a reference wage2. This percentage rises to 45 percent under the schedule annexed to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten units if the benefits are guaranteed at least to protected persons who have completed a qualifying period of less than thirty years of contribution or employment, or twenty years of residence normally taken into consideration by the Conventions (paragraphs 1, 3 and 4, Article 29 of Convention No. 102 and paragraphs 1, 3 and 4, Article 18 of Convention No. 128). As for Recommendation No. 131, it advocates a percentage of 55 percent3 (paragraph 221, and recommends in its paragraph 23 that national legislation set the minimum amount of old-age benefits, in order to ensure a minimum standard of living." (The emphasis does not correspond to the original).

In this way, I consider that the premise from which the majority vote starts becomes false, so inexorably the conclusions derived from it are erroneous.

Now, the Sole Article of Law No. 9380 of July 29, 2016, called "Contribution Percentage for Pensioners and Active Employees for Special Pension Regimes," regulates:

"In no case shall the totality of deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity-based, and redistributive contribution, represent more than fifty-five percent (55%) of the total amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." For its part, ordinal 3 in fine of Law No. 9383 of July 29, 2016, called "Framework Law for Special Contribution of Pension Regimes," stipulates:

"In no case shall the sum of the special, solidarity-based, and redistributive contribution and the totality of deductions applied to all pensioners and retirees covered by this law represent more than fifty-five percent (55%) of the total gross amount of the pension that the beneficiary is entitled to by right. For cases in which this sum exceeds fifty-five percent (55%) of the total gross amount of the pension, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension." This limit of 55% of the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the plaintiffs' arguments that its application automatically violates the 40% barrier of a reference salary under the terms of Article 67 of that international instrument. In that sense, such a reference salary, in the case of Costa Rica, could be referred to the average of salaries used to calculate the amount of a person's pension, which is in accordance with ordinal 65 of that regulation. Note that the 55% parameter of the challenged laws is related to the gross amount of the pension, while the conventional 40% is related to a reference salary, so these are limits used differently. Consequently, it will be in the scope of the application of the legal norm that it must be assessed whether in any specific matter, probably concerning very high pensions, the conventional barrier is superimposed on the legal parameter.

In addition, the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the salary scale issued by the General Directorate of Civil Service) and the 55% limit on deductions from the highest pensions (contemplated by both Law No. 9380 and Law No. 9383) subjected to a gradual scale of affectation, guarantee more than dignified pensions for older adults. In the above sense, I do not observe arguments demonstrating that the staggered contribution and the imposed charges are openly unreasonable or affect the core of the pension right, so I rule out any manifest affectation of the human dignity of the beneficiary persons.

Regarding the above, it is not possible to affirm that the questioned provisions violate the international protection that older adults enjoy, since not only is the sustainability of the regime being guaranteed, but also sufficient income to reasonably satisfy a dignified standard of living.

Thus, I consider that, with the elements provided in the case file, Laws Nos. 9380 and 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscation, nor do they violate the special protection that older adults enjoy.

Similarly, even though a violation of the principle of administrative responsibility is alleged, it is no less true that the questioned norms do not exempt public entities from liability when they cause any injury to persons, so prima facie I dismiss this allegation.

(…)

In the sense expressed, if a pension financed largely or totally with public funds is unreasonably high (with disproportionate amounts and increments), it is justified that through laws the adjustment of such benefits be sought in order to safeguard the right to a dignified existence for all pensioners. As long as the imposition of contributions and charges on old-age pensions and retirements respects the percentage conventionally established (Article 67 of ILO Convention 102), there would a priori be no violation of Constitutional Law. It must be taken into consideration that, as accepted by the majority of the Chamber, the country's economic situation is complicated and the sustainability of the pension regime is compromised, so that, in consideration of the principle of social solidarity, it is essential that those who are in a better position contribute progressively according to their economic capacity. The approach to the contribution must be understood based on solidarity with the sustainability of the regime and the less favored persons, rather than the maintenance of disproportionate privilege situations in favor of a group of persons. For that reason, precisely, it is not considered contrary to the principle of non-retroactivity that contribution amounts be increased for pensioned or retired persons, provided that the guarantees and limits set forth in this dissenting vote are respected.

Now, the majority cites provisions of the Protocol of San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights relating to the right of persons to lead a dignified life in their old age, and considers that the 40% percentage, contemplated in ordinal 67 itself of ILO Convention 102, is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectation.

Nonetheless, as I indicated above, the provision of the international instrument that is applicable to the specific case is precisely that Article 67, endorsed by the ILO, and not subsection 71.2, as it is forcefully interpreted by the majority in the main judgment. Likewise, it bears repeating that the exempt minimum contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the salary scale issued by the Dirección General de Servicio Civil, which, according to the Procuraduría General de la República, was ¢2,602,500.00 for the first half of 2017) and the 55% limit on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383), subjected to a gradual scale of impact on larger pensions, guarantee more than dignified pensions for older adults.

Finally, even though there are ILO recommendations suggesting half the salary as a pension in cases where thirty effective years of contributions are accredited, it is no less true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other, ILO Convention 102 (whose binding nature is unquestionable) does expressly contemplate a percentage that must be respected for the purposes of the pension in old-age cases (40% of a reference salary), hence the direct application of the international instrument in the *sub lite* is appropriate.

Based on the foregoing, I declare the actions without merit insofar as they pertain to Laws No. 9380 and 9383.” Precisely, in accordance with the position set forth above, the provision of ILO Convention C102 applicable to this type of matter is Article 67, and not subsection 71.2.

In this regard, sections 67 and 71.2 state:

“Article 67 With respect to any periodical payment to which this Article applies:

(a) the rate of the benefit shall be determined according to a prescribed scale or a scale fixed by the competent public authorities in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other means of the family of the beneficiary exceed prescribed substantial amounts or substantial amounts fixed by the competent public authorities in conformity with prescribed rules; (c) the total of the benefit and the other means, after deduction of the substantial amounts referred to in subparagraph (b), shall be sufficient to maintain the family of the beneficiary in health and decency, and shall be not less than the benefit calculated in accordance with the provisions of Article 66; (d) the provisions of subparagraph (c) shall be deemed to be satisfied if the total amount of benefits paid under the Part concerned exceeds by at least 30 per cent. the total amount of benefits which would be obtained by applying the provisions of Article 66 and the following provisions:

(i) Article 15, subparagraph (b), for Part III; (ii) Article 27, subparagraph (b), for Part V; (iii) Article 55, subparagraph (b), for Part IX; (iv) Article 61, subparagraph (b), for Part X.

SCHEDULE ANNEXED TO PART XI. PERIODICAL PAYMENTS TO STANDARD BENEFICIARIES

(…)

“Article 71.

(…)

2. The total of insurance contributions borne by the employees protected shall not exceed 50 per cent. of the total of the financial resources allocated to the protection of employees and their wives and children. In order to ascertain whether this condition is fulfilled, all the benefits provided by the Member in application of this Convention may be taken together, except family benefits and employment injury benefits, if the latter are provided by a special branch.” As can be deduced from reading the cited articles, this Chamber, in judgment No. 202019274 of 4:30 p.m. on October 7, 2020, unnecessarily altered the legal-normative meaning of subsection 71.2 to adapt it to the specific case and set a maximum percentage of 50%, thus ignoring the existence of section 67 of the international instrument, which specifically regulates matters pertaining to the limitations that can be imposed on pensions. Note, furthermore, that Article 71.2 refers to the percentage of insurance contributions borne by employees in relation to the total resources allocated to that protection; that is, such provision regulates “employees” (economically active population) and not “pensioners or retirees.” Based on the foregoing, consistent with the line I have maintained, I declare these arguments without merit, since there is no evidence that sections 236 and 236 bis of the Ley Orgánica del Poder Judicial cited above automatically exceed the barrier of 40% of a reference salary, established in section 67 of ILO Convention C102. Note that the 55% parameter of the challenged laws refers to the gross amount of the pension, while the conventional 40% refers to a reference salary; therefore, it falls within the scope of the application of the legal norm to assess whether, in any specific matter, the barrier established in the international instrument overrides the parameter set in the legislation. Consequently, I do not observe arguments demonstrating that the contributions, charges, and deductions are openly unreasonable or affect the core of the right to a pension.

Paul Rueda L.

Partial Dissenting Opinion of Judge Hernández López.

The pension received by a specific person represents the economic sustenance that allows them to carry out their life project when they no longer work and reach old age, after having met the legal requirements in force. It is a fundamental right, as determined by constitutional jurisprudence, and is inescapably linked to the exercise of their other fundamental rights and freedoms and their quality of life.

By the exclusive decision of the Costa Rican legislator, a solidarity model was adopted to build its pension scheme across different regimes—for several generations of workers, in the case of the Poder Judicial for more than 70 years—and in that scheme, the basis is that through its regulation, the State does not seek economic advantage, but rather, according to our current social contract, seeks to invest in certain values or legal assets that impact a specific community in society in a certain way, called social rights. There are other social or welfare rights distinct from the right to a pension, such as social security, free education up to certain levels, or social programs in general, where the State takes fiscal revenue and distributes it without its criterion being merely financial; that is, not everyone contributes the same, nor receives the same.

The commitment of the Costa Rican State to social rights arises from the constitutional text itself (among others, Articles 56 et seq.) and from various international human rights instruments incorporated into it—even with a higher rank by virtue of Article 48 of the Constitución Política and Judgment 1995-02313 of this Chamber, insofar as they better protect the right. Among its supranational protection, we can highlight the text of the International Covenant on Civil and Political Rights, whose implementation protocol was recently approved in our country, and the American Convention on Human Rights. Both instruments develop the progressive realization clause of Economic, Social, and Cultural Rights, among these Article 2 of the International Covenant on Economic, Social and Cultural Rights, hereinafter ICESCR, Article 26 of the American Convention on Human Rights or Pact of San José, and the Additional Protocol to the American Convention on Human Rights or Protocol of San Salvador, among others, in their Articles 1 and 2.

Based on current national and international regulations and jurisprudence, it is recognized that social rights are indivisible and interdependent with other fundamental rights, which makes them fully enforceable and binding for public authorities (on the principle of indivisibility, see Airey v. Ireland, ECHR). In times of economic crisis, public authorities are obliged to prevent the crisis from becoming a human rights crisis, or an excuse for not fulfilling them. In this sense, the most recognized international doctrine has indicated that regressive measures regarding social rights are, in principle, inadmissible and that it is the public authorities who bear the burden of proving that the cuts are justified in light of the full set of socioeconomic rights. Particularly, it has been emphasized that, in the event that an administration must adopt regressive measures in terms of the right to a pension, a technical study must be prepared on the impact it will have on the rights of those affected, as well as demonstrating that there are no less burdensome measures that could have been taken. (Federation of employed pensioners of Greece (IKA-ETAM) v. Greece, Complaint No. 76/2012) In addition, and given that the issue occupies attention in the countries where a Social State has been most intensely developed, the European Committee of Social Rights of the Council of Europe has adopted several decisions on pension cuts, and the case of Greece and its economic crisis has been especially analyzed. In them, the cited body has set limits on the adjustments imposed by the so-called “troika,” pointing out that the State is obliged to comply with the Social Charter of 1961 and that any decision on pensions “must reconcile the general interest with individual rights, including the legitimate expectations” of individuals “regarding the stability of the applicable rules.” The European Committee of Social Rights of the Council of Europe and other Constitutional Courts have endorsed regressive measures in ESC rights when they pursue a legitimate and relevant aim, such as the improvement of another right or the general level of service coverage that guarantees its effectiveness, or serves to avoid more burdensome measures. Thus, the constitutional conformity of measures cutting or modifying pension conditions requires that, prior to the determination and as an unavoidable part of its reasoning, there must be technical support on the effects of the measures, and those affected must have been heard because it concerns the income they are currently receiving as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.

The measures adopted by the legislator in the reform of the Poder Judicial pensions, as stated in the judgment—in the part I have signed—, are based on technical studies on which the legislator relied to make the necessary adjustments to protect the economic equilibrium of the pension fund and thus protect the rights of the fund's community and thereby each of its members. To the extent that the challenged reforms are supported by these technical studies, I have considered, with the majority, that they are constitutionally sustainable; however, in those aspects where they deviate from the technical studies or were omitted (as in the case of the differences between women and men for the ordinary pension, that is, without a gender perspective), I have separated myself from the majority opinion, precisely because of the lack of a technical criterion supporting the adopted measures. In the case of the transitory provision affecting those with more than 25 years of contributions, I have also separated myself, precisely because it lacks technical support or a justification compared to less burdensome measures that were present in the legislative record.

To determine if a regressive measure is legitimate, in accordance with Inter-American jurisprudence and the most current doctrine, first, it is necessary to verify the legitimacy of the purpose that the norm aims to achieve; subsequently, one must analyze whether the restriction of rights is “suitable” or “adequate,” successively whether it is “necessary” or “indispensable,” and, finally, whether it is “proportional” in the strict sense or “balanced.” In the specific case, the measure may be legitimate insofar as it pursues a constitutionally legitimate aim (restoring economic equilibrium to the fund), but in my opinion, it is not proportionate, as will be seen.

As the jurisprudence of the Inter-American Court of Human Rights and the most current doctrine on the matter have indicated, in addition to ensuring that a legitimate aim is pursued, it must be verified whether the means provided in the norm to achieve the pursued goal are adequate or not for effectively achieving said goal or, in other words, “(...) the protective effect of the measure in relation to the interest or value that one wishes to favor must be clearly demonstrated.” The jurisprudence of the Inter-American Court also indicates that there must be no other means to achieve the pursued goal with the same efficiency that are less onerous or burdensome in terms of the sacrifice of the constitutional rights susceptible to limitation in each case, or, in other words, “(...) that there is no other means that can lead to the goal and that sacrifices to a lesser extent the constitutional principles affected by the use of those means.” It is here where, in the case of persons with 25 years or more of contributing to the regime, it seems to me that the measures are contrary to the Constitución Política, since in the record, there was a less burdensome technical proposal for making the transition to the new rules in a staggered manner, and despite this, the legislator, without any technical support, departed from other technically supported options and opted for a more burdensome measure, as was the 18-month transition. It is true that there is no immutability of the legal system, and it is also true that this Constitutional Chamber has said that an 18-month transition is sufficient; however, in all the cases where it has said so, no alternative, less burdensome proposal existed for the affected persons. That is, the 18 months have been applied as a palliative when no technically viable transitional proposal exists, so as not to leave unprotected those persons who were close to the retirement deadlines, in order to not disproportionately affect their life projects. However, that is not the case under study, since in the record, there were technically sustainable proposals that were less burdensome and that were discarded without a technical justification. It is there that I consider a disproportion occurs, by its effects, in not protecting persons with 25 years or more of contributions, which makes the impugned regulations unconstitutional and unconventional in their transitional measures regarding this group of people. I have not considered it so for persons with a period of less than 25 years, because their level of proximity to the right to retirement is not comparable.

The Inter-American Court has indicated that if the damage produced to the legal rights of citizens is greater than the constitutional benefit that the norm is capable of achieving, then it is disproportionate (...)”.

Likewise, regarding the intensity that the proportionality test must have, the Court has held that in economic matters, and more specifically in matters related to budget and resource appropriation, the legislator has broad freedom of configuration, which is why, in these cases, any eventual proportionality tests conducted must have a low intensity. However, when the way in which resources are allocated threatens other rights of greater constitutional relevance, for example, the vital minimum or human dignity, the test must be strict. In the case under study, persons with 25 years or more of contributing to the Poder Judicial pension regime were, in my opinion, unnecessarily affected, since a more proportionate, staggered technical alternative existed not to do so, this was discarded by another, without any technical justification for doing so being evident in the legislative record, which seems to me to detract from the criterion of proportionality, and therefore from reasonableness, from the measure in question, and for that reason, I have partially dissented in this sense.

Regarding postponement, I have dissented, considering the existence of an unconstitutionality by omission in the challenged Law 9544, due to the fact that the legislator has not given the same treatment under the law to Poder Judicial workers regarding the possibility of having incentives to postpone their right to retirement, according to the characteristics of their own regime. I consider that this omission violates the Right of the Constitution to the detriment of judicial servants, since, if the legislator's intention has been to try to equalize—as far as possible—the conditions under which the different pension regimes operate, it is more than evident that in the challenged Law 9544, this circumstance has not been taken into account in relation to this specific point.

It is evident in the case file that a sector of the plaintiffs challenges the modifications introduced to the Régimen de Jubilaciones y Pensiones del Poder Judicial through Law 9544, for lacking specific rules granting benefits to male and female workers of the Poder Judicial who decide to postpone their retirement, something that has been established and regulated for other pension regimes existing in the country, such as the case of the Régimen de Invalidez, Vejez y Muerte (IVM) of the Caja Costarricense de Seguro Social. On this point, it is opportune to mention what Article 25 of the IVM Regulation provides, according to which:

"Article 25. The insured person who meets the requirements to be entitled to receive an old-age pension shall be entitled to an additional pension for postponed retirement, from the date on which they have met the legal and regulatory requirements. This additional pension shall consist of 0.1333% per month on the average salary calculated according to Article 23.

The amount of the additional pension for postponed retirement added to the amount of the ordinary pension calculated according to Article 24 of this Regulation may not exceed 125% of the indicated average salary or income." Note that this benefit for postponement translates into an economic recognition for the worker who, due to personal, professional, or any other conditions, decides not to avail themselves of their right to retirement or pension at the time it would correspond to them, choosing to remain active in their duties and continue working in the institution. Upon making an objective analysis of the situation, there is no doubt that this recognition that would be granted under such circumstances not only constitutes an element in favor of the working person but also—and probably to a greater extent—a benefit for the Fund, given that they will continue to actively contribute and, therefore, will continue to generate wealth for it, unlike retirees or pensioners who are in a passive situation vis-à-vis the fund, causing a reduction of its economic assets. From this perspective, in my judgment, what would be convenient is that a Fund like that of the Poder Judicial, besides having possibilities for early retirement that rather harm it, should have the option of offering its members incentives for postponement as certainly exist in other retirement regimes, since they constitute compensatory measures for the benefit of the Fund and of the workers.

Note that in the original bill with which legislative file No. 19,922 began, which was called “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa,” included in Article 235 Ter, final paragraph, an incentive for postponement according to which:

“(...)

The monthly amount corresponding to the old-age pension shall be obtained in the following manner:

a) …

b) …

• c)In the event that the requirements to opt for the old-age pension are met and the worker does not avail themselves of it, the amount obtained shall be increased by 0.5% of the reference salary, for each additional quarter postponed.” As can be deduced from the preceding quotation, the benefit for postponing retirement consisted of, for each additional quarter that the worker delayed their retirement, the reference salary being increased by 0.5%; however, in addition to the above, in that bill, Article 244 was included, which established:

“Article 244.- Working persons of the Poder Judicial who meet or exceed the age and time-of-service requirements to avail themselves of retirement, but who postpone its enjoyment, acquire the right to be paid from the resources of the Fondo de Jubilaciones the equivalent of one month's salary, for each complete year postponed.” Note that this was an additional benefit intended to incentivize people not to avail themselves of retirement and to be able to continue working but, at the same time, receiving some type of recognition for that decision. Likewise, it must be indicated that in the bill processed under legislative file No. 19,651, which was called “Ley de Reforma del Título IX de la Ley Orgánica del Poder Judicial No. 8 of November 29, 1937, and its reforms,” an incentive for postponement was included, with the following being expressly stated in the statement of motives:

“Incentive for postponed retirement We also introduce this possibility, and with it, we seek that people who meet the requirements to avail themselves of retirement remain working in the Poder Judicial for a longer time, so that the Fund does not have to assume the payment of the retirement at that time. In exchange, the person who postpones the date on which they attain the retirement right obtains, as an incentive, the equivalent of one salary for each complete year postponed; that money will be paid from the Fondo de Jubilaciones at the time they avail themselves of retirement, achieving with this procedure a saving of twelve annual disbursements that the Fund would have to make if the person had availed themselves of their right at the time they met the requirements.” In the body of the bill's text, that incentive was recognized in Article 244, which established:

“Article 244.- Working persons of the Poder Judicial who meet or exceed the age and time-of-service requirements to avail themselves of retirement, but who postpone its enjoyment, acquire the right to be paid from the resources of the Fondo de Jubilaciones the equivalent of one month's salary, for each complete year postponed.” Such possibilities of including an incentive for postponing the retirement benefit were eliminated in successive drafts, and in the justification of the Dictamen Afirmativo de Mayoría issued by the Comisión Especial on July 27, 2017, it was expressly indicated that:

“The Comisión Dictaminadora consciously and responsibly incorporated into the approved text the variables established by the IICE_4 Normative Framework, with the purpose of not putting at risk the present or future sustainability of the Poder Judicial Pension and Retirement Regime, and strictly relying on the technical recommendation issued by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica. Hence, the following variables regulated in the approved text adhere to those contained in the IICE_4 Normative Framework; these are:

(...)

m- Incentive for postponed old-age retirement: not contemplated in the model” As deduced from the above, the legislator omitted including the cited incentive based on the argument that it had not been incorporated into the technical study conducted by the Instituto de Investigación en Ciencias Económicas of the Universidad de Costa Rica; however, they could well have requested that said study be expanded in that sense in order to add it to this specific regime, especially considering that their original intention was aimed at achieving a unification of the different retirement and pension systems that exist in the country.

This being the case, because Law 9544 did not contemplate such type of incentives even though the ordinary legislator had the power to have included it and the mandate to regulate this type of social provisions for the benefit of workers—both at an individual and collective level to favor the Fund—, I believe that Law 9544 contains an unconstitutionality by omission that affects the right to equal treatment before the law.

Regarding the dissenting opinion on the percentage reduction of the solidarity tax, I refer to the reasons given in the opinion issued in judgment No. 2020-19274 of 4:30 p.m. on October 7, 2020, in which I considered, together with Judge Rueda, that according to the express text of Article 67 of ILO Convention C102 of 1952 – Convention concerning Minimum Standards of Social Security, the pension or retirement can be reduced as long as 40% of a reference salary is respected, something for which there is no evidence it is automatically and evidently transgressed by the content of the challenged norms.

Nancy Hernández L. Judge Note by Judge Hernández López Regarding the violation of the principle of publicity, as stated in the operative part (Por tanto) of the judgment, I join the note by Judge Garro Vargas. Regarding the final note of a general nature, I dispense with it.

Nancy Hernández L. Judge Partial Dissenting Opinion of Judge Rueda Leal and Judge Hernández López, with wording by the latter. On the legislator's omission to include a gender perspective in Article 224 of Law 9544.- From a constitutional point of view, in order to comply with the principle of equality, the conditions of structural disadvantage faced by women must be counteracted through differentiated positive measures that include a gender perspective, in all aspects of productive life.

In this matter, besides the mandatory compliance with the constitutional precept of Article 33 of the Constitución Política, the country has committed itself, through various international human rights treaties, to generate proactive actions to reduce the inequality gap that exists in practice. Apart from the above, in various studies, it has been recognized that our country continues to maintain a patriarchal system in which women are the first to solve the care of infants, older adults, persons with disabilities, and other family members, working on average 13.5 more hours per week at home compared to men, among others, which translates into a greater burden and wear and tear resulting from inequality in the distribution of family and domestic responsibilities due to the roles socially assigned to them and which they often carry out in parallel to their formal work (see, among others, the Encuesta Nacional de Uso del Tiempo (ENUT) of 2017).

As indicated above, our country has signed the main human rights treaties, among which those in the specific area of protecting women stand out, such as CEDAW, or the Convention on the Elimination of All Forms of Discrimination against Women, the Convention of Belém do Pará, from which it derives, in our opinion, the need to recognize the contribution made by women, through unpaid work, to the well-being of households, families, and the economic development of the country, especially when the inequity in the distribution and use of time between women and men is proven to be a determining factor of inequalities at work and in employment, which operates as a barrier to the full development of women. On this issue, the United Nations Committee on the Elimination of Discrimination against Women, in General Recommendation No.

27 regarding older women and the protection of their human rights, notes that there are multiple forms of discrimination that women face as they age, and this explains the content of the obligations that States parties must assume with respect to aging with dignity and the rights of older women, for which policy recommendations are formulated to incorporate responses to the concerns of older women into national strategies, development initiatives, and positive measures, so that these women can participate fully in society, without discrimination and on an equal footing with men. This situation is aggravated by retirement, especially in those countries where legislation does not contemplate different retirement ages for women and men; a positive discrimination that aims to offer a solution for the female collective. On this subject, it should be noted that the basis for defending an earlier retirement age for women is to compensate them for the traditional burden of domestic work and child-rearing, which causes them to participate less than men in the labor market (56% versus 83% in the region) and, when they do, it is in many cases by bearing a greater burden but with lower pay. From this perspective, the difference in retirement age -as an affirmative measure- is justified by the requirement to ensure effective and complete equality between men and women, compensating for the disadvantages they suffer throughout their working and professional lives, since women are the most exposed to the negative effects of those dynamics, typical of the labor market, that end up punishing women mostly. This positive discrimination measure that tends to recognize a difference in retirement age between men and women finds its basis in multiple international instruments, duly approved and ratified by Costa Rica, such as those cited supra and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, among others, which establish the need to fulfill the real right to equality between men and women, and by which, States like Costa Rica commit to adopting all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure them the same rights that men hold. On this matter, the CEDAW Committee has repeatedly insisted that women have been and continue to be subject to various forms of discrimination based on the fact of being a woman, taking into account that the gender discrimination in employment they suffer throughout their lives has a cumulative impact in old age, forcing them to live with disproportionately low, or even non-existent, incomes and pensions compared to men. For that Committee, it is not enough to guarantee women treatment identical to that of men; the biological differences between women and men and the differences that society and culture have created must also be taken into account, so that, in certain circumstances, non-identical treatment of women and men will be necessary to balance those differences, since achieving the objective of substantive equality also requires an effective strategy aimed at correcting the insufficient representation of women and a redistribution of resources as well as power between men and women. Consequently, as stated supra, an affirmative action in favor of women is to establish a difference in retirement age, as a special measure that recognizes the additional working hours performed by Costa Rican women in general and the workers of the Judicial Branch, specifically; working hours that produce physical and mental wear and tear throughout women's lives and that become more clearly visible when they reach an advanced age as their paid working life comes to an end. The Office of the Attorney General of the Republic, in responding to the hearing granted in this unconstitutionality action, affirmed that this type of differentiation is only justified when technical studies suggest the need for differentiated treatment and that the Chamber resolved it thus in judgment No. 2018-005758 of 15 hours 40 minutes of April 12, 2018, further noting that, in any case, article 224 bis of Law 9544, related to the issue of early pension, does make a distinction between men and women regarding the retirement age; a distinction that is very similar to that provided for in the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund, since it allows women to retire at 60 years of age and men at 62 years of age. For her part, the Vice President of the Supreme Court of Justice, in her report to the Chamber, stated that in relation to article 224 of Law 9544, in the report rendered before the second consultation to the Supreme Court of Justice, the text of the current norm did not make a gender distinction as other pension regimes do; an omission widely analyzed in the discussion of the third consultation and in which a special call was made to observe the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, which in its numeral 11, subsection 1) subparagraph e) states that States parties shall adopt all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure the right to social security, particularly in cases of retirement due to disability or old age, and to what is established in article 71 of the Political Constitution regarding special protection for women at work. The President of the Legislative Assembly noted that given that this allegation that numeral 224 of Law 9544 does not address gender criteria is an aspect that was already analyzed by the Chamber, the claim should be rejected. In relation to the topic, certainly this Tribunal, when analyzing the Optional Legislative Consultation in judgment No. 2018-005758 of 15 hours 40 minutes of April 12, 2018, ruled stating:

“(…)

From the reading of the aforementioned norms, it is clear that these establish the requirements that every server must meet in order to obtain a pension from the Pension and Retirement Regime of the Judicial Branch. Now, in the opinion of this Chamber, the fact that a differentiation based on gender is not made in the terms mentioned by the consultants does not entail a vice of unconstitutionality, since it must be taken into account that the requirements to obtain a retirement benefit obey objective criteria that are set based on technical studies, which establish requirements such as the age and the number of contributions a person must fulfill to guarantee the sustainability of a pension regime, regardless of the contributor's gender. It must be kept in mind that the consultants do not provide technical studies to support the alleged unconstitutionality, in such a way that making the differentiation that is missed is objectively justified, which does not mean that, in the future, this Tribunal, through a posteriori control of constitutionality, will not analyze the grievance raised based on pertinent technical studies that may be provided. On the other hand, the studies mentioned in the consultation refer to other assumptions that are not admissible, since they have to do, among other things, with working hours, income, etc. Finally, it cannot be ignored that, contrary to what is alleged in the consultation, the IICE, in official letter no. 186-2017 of August 18, 2017, establishes clearly and precisely the following:

“c. Age required for retirement and differences by gender.

The guidelines established for retirement age in the Majority Opinion are the same as those used in the IICE_3 and IICE_4 frameworks: 65 years for ordinary retirement. For service-based retirement, a gender difference analogous to that established in the IVM regime of the CCSS is set: 62 years for men, and 60 years for women. The IICE team does not consider it necessary to establish additional distinctions based on gender”.

By virtue of the foregoing, the Tribunal considers that the alleged vice is not present”.

Despite what was said supra by this Tribunal, it must be remembered -as has been noted- that pronouncements such as the one issued when resolving the legislative consultation, in addition to referring only to the specific topics consulted, do not shield the effects or content of the adopted norms from future questioning -in subsequent judicial or constitutional control-; additionally, the Chamber's pronouncement within the framework of a legislative consultation has the characteristic of analyzing the draft of a regulation in abstract, without, as is logical, it having been applied, which does not prevent this Tribunal from, a posteriori, exercising control of constitutionality if the implementation of a norm reveals injuries to the constitutional order and, consequently, a claim of unconstitutionality is filed. Added to the above, the Chamber -like any Constitutional Tribunal- is the body appointed by the constituent power to ensure the supremacy of the Constitution through the mechanisms and procedures established in the Law of Constitutional Jurisdiction and in accordance with rule 13 of the Law of Constitutional Jurisdiction, the jurisprudence and precedents of the constitutional jurisdiction are binding erga omnes, except for itself. Control of constitutionality is constrained to ensuring that solutions are adopted safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multi-ethnic and pluricultural republic, whose Government is popular, representative, participatory, alternative and responsible), all of which implies an active exercise of weighing and optimizing the various principles, rights, and constitutional values at stake; therefore, ensuring that it does not fall into a paper Constitution where the social rights of constitutional rank cannot be effective is a fundamental task of this Chamber, strictly within what the framework of its powers allows it (see in this sense judgment number 2018-019511 of 21 hours 45 minutes of November 23, 2018). In relation to the topic under analysis in this Considering, at the time that consultation was formulated, there was not sufficient certainty of the practical effects that the regulations could cause, which today, as a Law of the Republic, can be observed, so it is now, on the occasion of this action, that it falls to the constitutional judge to carry out the exercise of weighing or optimizing to resolve the collision between principles, values, and precepts brought to its attention regarding the omission incurred by the legislator in applying the gender perspective in article 224 of Law 9544, and given that the function of the constitutional jurisdiction is constrained to ensuring that solutions are adopted safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the organization and political structures contemplated in the Fundamental Law, this is the moment in which it is appropriate to make such an assessment and consider that, precisely, in application of those principles and values that the Constitutional Judge must protect, the claimants are right in considering that article 224 is unconstitutional for not having incorporated gender criteria in its content regarding the ordinary pension.

It is also important to mention that the Institute of Research in Economic Sciences of the University of Costa Rica was requested as evidence for a better decision, to inform and clarify whether in the “Actuarial Study of the Pension and Retirement Fund of the Judicial Branch (period of validity 2016-2018)” the gender variant of the contributor was taken into consideration as part of the technical studies; if not, to indicate the reasons for such decision. In response to such concern of the Tribunal, the Director of the Institute of Research in Economic Sciences of the University of Costa Rica informed the Chamber that, in Summary Compendium #4 in which the 4 normative frameworks developed by the IICE are described, it can be observed that the IICE_3 and IICE_4 frameworks propose a difference of 2 years in favor of women in the minimum age requirements for service-based retirement -which is the one contemplated in article 224 bis-, so that, in both the IICE_3 framework and the IICE_4 framework, it turned out to be solvent, from an actuarial point of view, to grant an early retirement to women who had reached at least 60 years of age and to men who were at least 62 years of age. That official also informed this Tribunal that, in the same Summary Compendium #4, a difference of 2 years in favor of women is established for the IICE_1 framework in the requirements for ordinary old-age retirement and age-based retirement -which is the one contemplated in article 224- but the IICE_1 framework turned out to be insolvent under that assumption. Thus, it has therefore been demonstrated that the gender perspective was indeed integrated into the study prepared by the University of Costa Rica for the hypothesis of early retirement contemplated in article 224 bis, but not for the assumption of ordinary retirement in numeral 224, both of Law 9544 challenged here; in this last case, the argument for omitting it was that, had it been included, the results yielded by the IICE_1 framework showed that the Fund would be insolvent. Despite the importance of the issue, that omission was replicated by the legislator when it did not include the gender perspective in the assumption of article 224 of Law 9544 under study; a numeral that will probably be the one most used in the future because it is evident that a large number of judicial servers will opt for ordinary retirement since it will be the one that, in principle, will grant better conditions. Likewise, returning to the actuarial study, it is also observed that despite the Institute of Research in Economic Sciences having the inputs for it, it did not make other calculations or proposals for the assumption of ordinary retirement -which is the one contemplated in article 224 of Law 9544- with the inclusion of the gender perspective; a study that, in addition to having been able to complete the picture, could have yielded data according to which, including gender protection, the Fund would have been solvent. Consequently, it has been demonstrated that even though the ordinary legislator had the mandate to develop the topic including the principles and values of Constitutional Law, among which the gender perspective is found, it did not do so and, therefore, article 224 under study contains an unconstitutionality by omission that gives rise to declaring the appeal with merit in relation to that norm, since it did not set a differentiated age so that women who contribute to the Pension and Retirement Regime of the Judicial Branch can retire under ordinary conditions. By reason of the foregoing, we estimate that what was appropriate was to order the duty of the Legislative Assembly to correct that omission, always relying on the due technical criterion that would allow the age difference that is set to, in turn, guarantee the sustainability of the pension and retirement fund, so that the conditions to support the difference between men and women that is established would also be assessed with the set of charges and deductions that already exist for all active and retired contributors, in order to respect the parameters of reasonableness, proportionality, and non-confiscation.

Paul Rueda Leal Nancy Hernández L.

Magistrado Magistrada Note from judges Salazar Alvarado and Hernández Gutiérrez on the omission alleged in article 224, drafted by the former.

Given that the undersigned judges agreed to integrate and take a position with the other members of the Chamber, when necessary to make the vote fully conforming, we declare the action without merit solely regarding the reasons of form, since the claimants did not provide technical studies that refuted those that served as support for omitting a gender perspective in the reform of article 224, carried out through Law No. 9544 of April 24, 2018, reforming the Pension and Retirement Regime of the Judicial Branch.

Luis Fdo. Salazar A.

José P. Hernández G.

Dissenting vote of judges Salazar Alvarado and Hernández Gutiérrez, drafted by the former.

The undersigned judges dissent, and consider that it is necessary to approach the problem of the accumulated actions from the perspective that in the legislative procedure a gross, manifest, and evident violation of article 167 of the Political Constitution was incurred, and that, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called “Reform of the Pension and Retirement Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms”.

It should begin by noting that the Special Commission in charge of processing legislative file No. 19,922 informed the Full Court of the respective draft laws that were being approved, to comply with the provisions of the cited numeral 167. The consultations to the Supreme Court of Justice occurred on three occasions; namely:

• a)The draft law was consulted to the Supreme Court of Justice and the report rendered was known in the Full Court session No. 29-16 of September 26, 2016, article XVIII, communicated to the Legislative Assembly, through official letter SP-288-16 of September 28, 2016, with the express indication that the consulted draft law affects the organization and functioning of the Judicial Branch.
• b)On a second occasion, the Full Court in session No. 9-17 of April 24, 2017, article XXIX, knew of the consultation that was posed to it and through official letter SP-118-17 of April 26, 2017, in which the Special Legislative Commission was informed that the Full Court had issued a negative opinion on the consulted draft law, because it affects the organization and functioning of the Judicial Branch.
• c)On a third occasion, the Full Court in session No. 26-17 of August 7, 2017, article XXX, knew of the consultation posed by the Special Commission on the Affirmative Majority Opinion, and the negative opinion was issued indicating that the draft law processed under file No. 19,922 affects the organization, structure, and functioning of the Judicial Branch; a decision communicated to the Legislative Assembly through official letter SP-253-17 of August 10, 2017.

In each and every one of the consultations formulated, the Full Court established that they were draft laws that affected its organization and functioning, so that, based on that negative opinion, in accordance with article 167 of the Political Constitution, and the principles of coordination, mutual respect, and equality, which inform the relations between constitutional organs, between two powers of the State [system of checks and balances], the law had to be approved by a qualified majority. Furthermore, it should be mentioned that the last of the drafts, which was the Affirmative Majority Opinion accepted by the Special Commission on July 27, 2017, was not the final one. On the contrary, the text of the draft was subject to substantive motions and reiteration accepted by the Special Commission, on which the Legislative Plenary subsequently voted in the First Debate, in the extraordinary session No. 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative file). Thus, the text voted on by the Legislative Plenary in the First Debate was the modified text maintaining some of the points on which the Full Court had issued its negative opinion, among them, the installation of an Administrative Board of the Pension and Retirement Fund of the Judicial Branch to the detriment of the competences of the Superior Council of the Judicial Branch. But in addition, it must be indicated that it contained other substantial changes to the draft law, among them those that worsened some conditions for judicial officials, for the enjoyment and exercise of the right to pension and retirement, a situation on which the Full Court had to rule -with respect to article 167 of the Constitution- due to its relevance in Constitutional Law. These modifications were voted on in the First Debate, and were approved in the Second Debate. The foregoing, without having made the institutional consultation on the draft approved in Commission and which was subsequently voted on by the Plenary in the extraordinary session No. 14 of October 30, 2017.

Although the Legislative Assembly considered it unnecessary to consult the Judicial Branch on the final text, approved in the Special Commission on July 27 and the subsequent modifications made by substantive motions and reiteration, and to continue with the legislative process following the Chamber's criterion in Judgment No. 2018-005758 of 15:40 hours of April 12, 2018, given that those modifications to the pension regime of the Judicial Branch did not affect the structure and functioning of the Judicial Branch, nor the essential content of judicial independence, this is not admissible for the undersigned judges, as will be developed later. Furthermore, there is a pattern of worsening conditions for the officials of the Judicial Branch that can be listed from some provisions that were modified by the substantive and reiteration motions that were embodied in the text approved in the Commission, which implied a substantial change in the previously consulted draft. As indicated, this last text was approved in the First Debate on October 30, 2017, according to which, with a comparative exercise, some of the following substantial modifications of consideration are observed, for example:

• a)In article 224, the worsening was set at 85% of the average of the last twenty years of ordinary monthly salaries earned in the employment sphere, and it is modified to set it at 82% of the average of the last twenty years of ordinary monthly salaries.
• b)In article 229, the survivorship regime suffered a similar decrease, where due to the death of the active server, the amount for widowhood, common-law marriage, or orphanhood would decrease from 85% to 80%.
• c)In article 227, a similar situation occurs for the permanent incapacity (disability) of the official from 85% to 83%.
• d)Regarding the income of the pension and retirement fund of the Judicial Branch, it is evident that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial servers, and of the retirements and pensions covered by the fund, was established. Finally, it was approved at a fixed thirteen percent (13%), which implies that the floor or base of the worker contribution could not be lowered to the lower percentage of eleven percent. While the upper extreme is eliminated, the fixed percentage eliminated the decrease in favor of the judicial employee, who historically has been contributing a significant sum to the fund.

Thus, contrary to the criterion of the majority of the Chamber, which relies significantly on the doctrine of Judgment No. 2018-005758 of 15:40 hours of April 12, 2018, a precedent on which the undersigned subscribed a dissenting vote together with judge Cruz Castro, we consider that Law No. 9544 called “Reform of the Pension and Retirement Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms”, contains the substantial vice of the legislative procedure, due to the violation of the constitutional norm that imposes the constitutional consultation, based on the arguments presented below.

A.- Text of the law not consulted to the Supreme Court of Justice.

At the base of the discussion, as is well affirmed in the majority vote, is the determination of whether, under the provisions of article 167 of the Political Constitution, the legislative organ was or was not obliged to consult the cited draft law to the Judicial Branch, a duty that, moreover, has been incorporated in articles 126 and 157 of the Rules of the Legislative Assembly, in which the procedure to be observed for this purpose is stipulated. From the constitutional text, it is inferred that the mandatory consultation to the Supreme Court of Justice is only such if the draft law refers to the organization or functioning of the Judicial Branch. So, the crux of the matter is what is to be understood by “organization or functioning of the Judicial Branch”.

In this regard, the majority vote maintains that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers -only- to the affectation of the jurisdictional function, and not the administrative one proper. In support of this position, Judgments No. 1998-5958 of 14:54 of August 19, 1998, No. 2001-013273 of 11:44 hours of December 21, 2001, and No. 2008-5179 of 11:00 hours of April 4, 2008, are cited. Likewise, in relation to the specific topic of the Pension and Retirement Fund of the Judicial Branch and the obligation of the Legislative Assembly to consult the Supreme Court of Justice on draft laws that deal with it, the majority vote cites Judgments No. 1995-3063 of 15:30 of June 13, 1995, and No. 2002-4258 of 9:40 of May 10, 2002, based on which it concludes that, in those cases, the Legislative Assembly is not obliged to consult the draft law to the Supreme Court of Justice, under the terms set forth in article 167 of the Constitution. However, in the opinion of the undersigned, such interpretation of the constitutional numeral, restricted solely to the jurisdictional function, is not derived either from the text of the Fundamental Charter or from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it is noteworthy that, with respect to the first three judgments, what is sustained by the majority in its vote cannot be inferred from them. Thus, in Judgment No. 1998-5958 of 14:54 of August 19, 1998, what is developed is only the term “functioning” -of the binomial “organization or functioning”- of the Judicial Branch, without referring to the topic of the organization of that Power of the Republic. Specifically, in the citation made from that vote, the Chamber clearly indicates that “…the matters that preceptively require a consultation to the Supreme Court of Justice are those that refer \"to the organization or functioning of the Judicial Branch\", where the term \"functioning\" alludes not only to the aspects of internal administrative regime of judicial offices but also to procedural issues that govern the substantiation of the diverse matters submitted to these courts”, thereby making it evident that the topic of organization -which is the one of interest here- was not developed in said resolution, simply because the case did not require it, since it dealt with the preceptive legislative consultation on constitutionality regarding the draft of “Addition of a new Chapter IV, called “Of the habeas data appeal”, to Title III of the Law of Constitutional Jurisdiction, law No. 7185 of October 19, 1989”, which was processed in legislative file number 12,827, where the topic under discussion was that the reform affected the jurisdictional function of the Judicial Branch. That this is so is clear from the very text of the judgment that is not cited with due breadth in the majority vote: “…the matters that preceptively require a consultation to the Supreme Court of Justice are those that refer \"to the organization or functioning of the Judicial Branch\", where the term \"functioning\" alludes not only to the aspects of internal administrative regime of judicial offices but also to procedural issues that govern the substantiation of the diverse matters submitted to these courts.” And, in Costa Rica, the constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Law of Constitutional Jurisdiction integrate this Chamber within the structure of the Court.” Having made the citation in its context, it cannot be inferred that the Chamber has restricted the binomial “organization or functioning” merely to the jurisdictional aspect, but rather, in the cited case, this Constitutional Court only referred to the aspect of the jurisdictional function of the Judicial Branch, because that was the issue under discussion, without excluding, nor referring to, the topic of the administrative organization of said Branch of the Republic. The same can be said in relation to Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, to which the majority alludes. It concerns an optional legislative consultation of constitutionality regarding the bill for the “Modification of the Penal Code, Law number 4573 and its reforms,” legislative file number 14.158. Again, it involved a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case, the Chamber did not develop this latter topic either, as it was superfluous. This is why the substantive discussion centered and concluded on the aspects of the jurisdictional function of the Judicial Branch: “…said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules for the functioning and organization of the Judicial Branch, understood not merely as provisions regulating the creation of courts of justice or jurisdictional competences, but even those that provide for the manner of exercising said competences, that is, on the way in which the Judicial Branch carries out its jurisdictional function, including properly procedural norms.” Certainly, it is evident that what was expressed was limited to examining matters related to the exercise of the jurisdictional competences of the Courts of Justice, given that this particular aspect was the subject of that consultation. But the Chamber did not say that this is the only extreme in which the consultation of numeral 167 of the Political Constitution is mandatory; rather, it said that, in that case, it is mandatory, without referring to other cases in which it also is, such as matters concerning the administrative organization and competences of the Judicial Branch.

A separate comment is warranted by Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, since here, unlike the reading made by the majority, it is indeed established that matters relating to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited Article 167 of the Constitution. On that occasion, this Constitutional Court, as the ultimate interpreter of the Political Constitution, when referring to the terms “organization or functioning” of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for the mandatory consultation to that Branch of the Republic by the Legislative Assembly, considered “…that a bill concerns such extremes when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions…”. This is not a change of criteria by this Court on the matter, but rather, within the jurisprudential line already established, a greater determination of the terms “organization or functioning” used by Article 167 of the Political Constitution to establish the cases in which bills in the legislative pipeline must be consulted—mandatorily—to the Supreme Court of Justice. This judgment did not, in any way, expand the cases of mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it was clearly determined there that in those cases, but only in these, the consultation is mandatory. Thus, it is understood that, in that same judgment, it was expressed: “[i]t should be noted that such exegesis is necessary in order to maintain the balance of powers, without privileging one constitutional body or another, so that each can exercise its functions independently and separately as required by the constitutional text itself (Article 9 of the Constitution). In other terms, the clarification of such concepts avoids any collision, overreach, or exacerbation of the respective functions, in order to maintain the balance and containment of powers, because the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms used by the original constituent, by the Full Court, could lead to certain matters that, in a strict sense, are not related to the organization and functioning of the Judicial Branch, unjustifiably requiring a reinforced law, thereby unnecessarily slowing down or hindering the legislative function. On the other hand, the non-application of the constitutional norm by the Legislative Assembly, by mistakenly considering that the bill does not concern the organization and functioning of the Judicial Branch, could cause harm to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it is concluded that everything related to the matter of the organization and functioning of the Judicial Branch, but only and strictly this—to maintain the balance between functional independence and budgetary autonomy of the Judicial Branch, on one hand, and the freedom of configuration of the ordinary legislator, on the other—is what obliges the legislative body to make the consultation to the Supreme Court of Justice, without it being possible to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect impact on the jurisdictional function, oblige the legislative body to raise the consultation in the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the impact upon or modification of the administrative organization of the Judicial Branch in general—and not only matters pertaining to jurisdictional or judicial bodies in the strict sense—also affects the Administration of Justice service it provides, and the independence constitutionally guaranteed to that Branch and to judges as officials called to impart justice.

On the other hand, Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, which are cited in the majority opinion as a basis for concluding that bills relating to the specific topic of the Pension and Retirement Fund of the Judicial Branch do not need to be consulted to the Supreme Court of Justice, also do not have the virtue of providing the foundation that, in relation to this matter, the majority of the Chamber asserts they have.

In the first of said judgments, the Chamber heard accumulated unconstitutionality actions filed against the General Pensions Law, Law No. 7302 of July 8, 1992. This Court, on that occasion, only affirmed that, in the case of the General Pensions Law, there was no constitutional obligation to consult the respective bill to the Judicial Branch, for the simple reason that said bill does not affect judicial servants; and, therefore, it does not fall within what is prescribed by Article 167 of the Political Constitution. Likewise, in the cited opinion, it is indicated that functioning refers to the jurisdictional function, but it makes no allusion whatsoever to the topic of the organization of the Judicial Branch, which is what is at issue here.

Similarly, in Judgment No. 2002-4258 of 9:40 a.m. on May 10, 2002, the Chamber heard accumulated unconstitutionality actions filed against Article 4 of Law No. 7605, of May 2, 1996, insofar as it amends Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch, No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulations of the Costa Rican Social Security Fund. The Chamber dismissed, among other alleged issues, the violation of Article 167 of the Political Constitution, due to the fact that the amendment to the pension regime of judicial servants that was challenged had no relationship with the organization or functioning of the Judicial Branch, for the definition of which it referred to what was said in this regard in Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, which, as already stated, only referred to the term of the functioning of the Judicial Branch, without making any reference to the topic of its organization. Such that, unlike the opinion expressed by the majority, said judgments do not exclude the matter relating to the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation to the Supreme Court of Justice, but only insofar as the respective bill has no direct relationship with the “organization or functioning of the Judicial Branch,” topics which, certainly, were not involved in the actions that were filed before this Chamber and that were resolved in the cited judgments. With this, the matter concerning the Pension and Retirement Fund of the Judicial Branch is not excluded from the mandatory consultation to the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation, but rather it will depend on whether the bill in question contains or does not contain regulations relating to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case in order to establish the mandatory nature or not of said consultation.

At this point, it is important to clarify that the functional independence of the Judicial Branch, established in Article 9, and reinforced in Article 154, both of the Political Constitution, necessarily implies the power of said Branch of the Republic to establish its own organization, in order to avoid, especially, the intrusion of political interests into its function. And this organizational independence, both administrative and jurisdictional, is what is also protected in constitutional numeral 167. In this sense, in the opinion of the undersigned, it is a serious conceptual error to confuse or assimilate the jurisdictional function in a broad sense, including the auxiliary function to the jurisdictional, with the strictly administrative function. The jurisdictional function is a special function, different from the administrative function performed by officials of the Executive Branch or the decentralized sector. The Administration of Justice is one thing, and Public Administration is something very different, given the particularities of the jurisdictional function compared to the merely administrative function. Precisely, one of those characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is independence, in its dual aspect: both of the Judicial Branch considered in itself, and of the judge and other auxiliaries of the jurisdictional function. It is enough to understand the delicate task carried out by the judges of the Republic, with the collaboration of the officials who assist and aid them in their functions and without whom the former could not properly exercise their function, to bear in mind that they decide the cases submitted to their cognizance with the force of res judicata; that is, they decide what the truth is with the force of legal authority in each case, without their decision, once that condition is reached, being, in principle, subject to review. This implies an extremely delicate function and great responsibility, which could not be carried out if the functional independence of the Judicial Branch and the judges that comprise it is not guaranteed. And, in this sense, there can be no true independence if the salaries and the pensions and retirements of judges and auxiliaries of justice are not commensurate with their responsibilities, far more serious than those of any other official exercising a merely administrative public function. Hence, both cannot, in any way, be equated, neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights.

There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional Rule of Law in modern societies. This is because, unlike decisions made in the Legislative and Executive Branches, the decisions of the Judicial Branch, in exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata. This not only implies great responsibility, but also the need for a series of principles and guarantees that allow for the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organically and functionally, presents itself as a sine qua non condition for the exercise of that delicate function. It is the judge's responsibility to decide on the sole and possible interpretation of the law, the Constitution, and the conventionality control parameter, which would be impossible without proper independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and retirement rights commensurate with their functions and responsibilities, both for the judge proper and for the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, they cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in exercising the jurisdictional function justifies, around the topic of the action, that the retirement or pension of judicial servants not be the same as that of the rest of the administrative public sector. What is decided with the force of res judicata in judicial proceedings has transcendental effects on legal certainty and the law in force in a society; and, therefore, on social peace. In all this, judicial independence plays a leading role, because in a Constitutional Rule of Law; that is, in a Democratic State, that principle has an institutional projection onto the Judicial Branch proper, vis-à-vis any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even vis-à-vis the hierarchs of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch—including all its servants—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, Article 8.1 establishes:

“Article 8. Judicial Guarantees.

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation made against him, or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.” Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law. But for that independence to be real, it must be not only organizational and functional, but also economic. That economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the draft ordinary budget must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the fiscal year. The intention of the original Constituent, with the enactment of this norm—which establishes a tied constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary justice personnel have adequate remuneration for the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function implies for judicial servants, which do not apply to public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of judges and auxiliary personnel, as well as the pension and retirement regime applicable to them, must bear a strict relationship to the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, the economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional Rule of Law. Thus, one way to guarantee the independence of the Judicial Branch, of the Judges of the Republic, and of the auxiliaries of justice is with a dignified retirement or pension, commensurate with their constitutional functions.

In the explanatory statement that led to the enactment of the Judicial Retirements and Pensions Law, as an addition to the Organic Law of the Judicial Branch, Deputy Teodoro Picado Michalski, on June 2, 1938, expressed:

“The Judicial Branch is one of the three main supports upon which the Government of the Republic rests; and it is from its servants, who exercise very delicate functions for the very life of Society, that greater knowledge, probity, and work are demanded than from other employees. And that is surely why, when judicial servants are asked for complete dedication, for many years, to the extremely important task of administering justice, —with the noble purpose of ensuring their subsistence when they reach old age or when, due to physical ailments, they can no longer work— that the enactment of a law that contemplates this difficult situation of the officials and employees of the Judicial Branch has been urged before Congress, in different legislative periods.” It should not be overlooked that judges and judicial officials in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions affecting the rest of public officials, which makes it of a completely different nature. The regulations applying to administrative officials across the entire public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the end of the employment relationship. But also the principle of equality, enshrined in Article 33 of the Political Constitution, implies the prohibition of treating unequal persons as equals, because from that derives discrimination contrary to Constitutional Law. In the case of judges and judicial officials, there exist objective, reasonable, justified conditions, grounded in the very nature of the jurisdictional function exercised, to give them different treatment from the rest of the public servants of the different administrations, which, far from incurring discrimination, upholds the principle of equality regulated in the cited constitutional numeral. This means that if a differentiated retirement regime exists for the jurisdictional sector, this does not arise from an arbitrary, subjective, or whimsical decision by the legislator, but from the specific and different nature of the jurisdictional function that, objectively and constitutionally, justifies it.

The foregoing not only derives from our own Political Constitution and the values and principles that inform it, but is also contained in various international instruments. Thus, for example, in the “Basic Principles on the Independence of the Judiciary,” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, principle 11 states the following:

“11. The law shall guarantee the permanence in office of judges for the established periods, their independence and their security, as well as adequate remuneration, pensions, and conditions of service and retirement.” With which, the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate remuneration, pensions, and conditions of service and retirement, proportionate to the complexity and difficulty of the jurisdictional function they exercise. This must also be understood to extend to auxiliary justice officials, as, otherwise, such independence would be impossible.

Similarly, in the “European Charter on the Statute for Judges,” adopted in Strasbourg, between July 8 and 10, 1998, in order to achieve real and effective independence of the Judicial Branch and the officials who administer justice, as well as their collaborators and auxiliaries, paragraphs 6.1 and 6.4 establish the following:

“6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined so as to shield him/her from pressures intended to influence his/her decisions and, in general, his/her judicial conduct, thereby altering his/her independence and impartiality.

6.4 In particular, the statute shall ensure that a judge who has reached the legal age for cessation of his/her functions, after having performed them professionally for a specified period, receives payment of a retirement pension, the amount of which shall be as close as possible to his/her last remuneration for judicial activity.” The cited instrument seeks to achieve a truly and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. In such a way that adequate remuneration and pensions for judges and auxiliaries of justice, in the terms expressed therein, constitutes the due and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.

Also, the “Statute of the Ibero-American Judge,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32, echoes the same principles already cited, by establishing:

“Art. 32. Remuneration.

Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” And, in Article 33, it provides:

“Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that, upon concluding their years of service due to retirement, illness, or other legally foreseen contingencies or in case of personal, family, or property damages derived from the exercise of the office, they shall receive a dignified pension or adequate compensation.” It must be borne in mind that retirement and pension form part of the Economic, Social, and Welfare Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification, and accession by the United Nations General Assembly, in its resolution 2200 A (XXI), of December 16, 1966. These regulations have also been welcomed in Report No. 1 of November 23, 2001, issued by the Consultative Council of European Judges (CCJE), when examining the topic of the independence and irremovability of judges. Regarding the topic of judges' salaries, said Council recommended:

“…it is generally important (and especially in the case of new democracies) to establish specific legal provisions guaranteeing judges' salaries protected against reductions and ensuring de facto ‘an increase in salaries in line with the cost of living.’” These recommendations are fully applicable to the topic of judges' and judicial servants' pensions and retirements in general, as they are intimately related to the principle of independence of the Judicial Branch, as has already been set forth.

But not only in the international sphere has this matter been regulated in the stated terms; it has also been the subject of regulation internally within the Judicial Branch, with considerations similar to those stated.

Indeed, the Full Court approved the Statute of Justice and Rights of the Users of the Judicial System, in whose Articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets. Article 24, relating to the material conditions of judicial independence, establishes that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget items,” which is intimately related to the provisions of the already cited Article 177 of the Political Constitution, regarding the constitutional allocation of a minimum percentage of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the cited Statute also enshrines, as do the international instruments examined, the principle of the irreducible salary of the judge: “Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation has its foundation in the independence of the Judicial Branch, which must also be extended to the topic of the pension or retirement of judges and auxiliary justice personnel, as otherwise, the principle of judicial independence would not be possible.

Respect for judicial independence, which is one of the aims pursued by Article 167 of the Constitution, was also the subject of express regulation in the Statute, Article 20, by providing that “[t]he other Branches of the State and, in general, all national or international authorities, institutions, and bodies must respect and make effective the independence of the judiciary.” And, precisely, the unconsulted intrusion of the legislative body into the organization and functioning of the Judicial Branch, whether creating, modifying, or suppressing bodies or competences, judicial or administrative, is constitutionally inadmissible, as this constitutes a flagrant violation of the principle of judicial independence.

Finally, it should be noted that the independence of the Judicial Branch is a principle that has a particular and specific nature, distinct from that of the other Branches of the State, as it constitutes a protective shield against the intrusion of political power, from which the other Branches of the State are not protected. This is because the Judicial Branch is the one that administers justice, and this must be impartial and free from any external pressure. And, at this point, economic pressure, whether through salary or stipend, or through the amount and conditions of the retirement or pension of judges and other auxiliaries of justice, plays a transcendent role in achieving real and effective independence of the Judicial Branch.

Based on the preceding considerations, it is therefore appropriate to examine the content of the law in order to determine whether or not it affects the organization or the functioning of the Judicial Branch, in the terms expressed.

In this order of ideas, as when the legislative consultation related to the bill for the Comprehensive Reform of Various Pension Regimes and Related Regulations, now approved by Law No. 9544 of April 24, 2018, known as the “Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms,” was heard, the reasons for the dissenting opinion are maintained.

That legislative consultation was resolved by Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018, in which it addressed the various complaints regarding Article 239 of the law now in question. On that occasion, the legislative process was reviewed insofar as it creates a Administrative Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which it defines as a body of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions that the law grants it, a body that is granted functional independence and assigned a series of powers, among others, to increase the worker contribution to the Pension Fund and to hear retirement applications, which entails a modification in the structure of the Judicial Branch. Likewise, powers are subtracted from the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial); and, in addition, in Article 240 of the bill, the Full Court is given the obligation to issue regulations for the election of the members of that Administrative Board, thus assigning it a power that it does not currently have. The aforementioned articles of the Law provide:

"Article 239- The Administrative Board of the Judicial Branch Retirement and Pension Fund is created as a body of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the powers and attributions granted to it by law.

It is the responsibility of the Board:

• a)To administer the Pension and Retirement Fund of the Judicial Branch Employees (Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial).
• b)To study, hear, and resolve the retirement and pension applications submitted to it.
• c)To collect the contributions corresponding to the Fund and exercise the necessary collection actions.
• d)To attend to requests for re-entry into remunerative work by disabled retirees.
• e)To carry out actuarial studies with the periodicity established in the regulations issued for this purpose by the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero, Conassif) and the Superintendency of Pensions (Superintendencia de Pensiones, Supén).
• f)To invest the resources of the Fund, in accordance with the law and with the regulations issued for this purpose by the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• g)To comply with the legislation and regulations issued by both the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• h)To issue the rules for the appointment, suspension, removal, and sanctioning of personnel; as well as to approve the annual operational plan, the operating budget, its modifications, and its annual liquidation.
• i)All other attributions assigned to it by law and its regulations.

Based on the results of the actuarial studies, and with authorization from the Superintendency of Pensions, the Administrative Board may modify the initial parameters established in this law regarding eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial servants and the retirements and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime.

The Board shall have instrumental legal personality to exercise the attributions that the law assigns to it, as well as to exercise the judicial and extrajudicial representation of the Fund.

It will be financed by a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial servants, as well as from the retirements and pensions payable by the Fund. These resources will be used to pay the per diems of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses. Idle resources will be invested in accordance with the provisions of Article 237 of this law.

Article 240- The Administrative Board shall be composed of three members who shall be democratically elected by the judicial collective, as well as three members appointed by the Full Court, with a gender perspective in both cases. Each full member shall have a substitute to replace them in their absences, who must meet the same requirements as the full member.

The members of the Board shall hold their positions for five years, after which they may be re-elected, all in accordance with the regulations to be issued for this purpose by the Full Court, following a hearing granted to the trade union organizations of the Judicial Branch.

In the first ordinary session, the Board shall designate the person who will preside over the sessions; this designation shall be made for a period of one year, and must alternate each year between the representatives of the judicial collective and the Full Court. In addition, a person shall be designated to substitute for them in case of absence. The presiding person shall have a casting vote in case of a tie.

The members of the Administrative Board shall not receive any per diem but shall have the necessary leave to attend the sessions. To be a member of the Board, the following requirements must be met, which must be documented and demonstrated before the Superintendency of Pensions (Supén):

• a)Hold a university degree in careers related to the administration of a pension fund and be incorporated into the respective professional association, when applicable.
• b)Be of recognized and proven honorability.
• c)Possess knowledge and at least five years of experience in professional or managerial activities relevant to the administration of a pension fund, so that all members of this body possess skills, competencies, and knowledge that allow them to analyze the risks affecting the Board and the Fund.

The following may not be members of the Board:

• 1)Persons against whom a final criminal court judgment has been issued in the last ten years for the commission of an intentional crime.
• 2)Persons who in the last ten years have been disqualified from holding an administration or management position in the Public Administration or in entities supervised by the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras, Sugef), the General Superintendency of Insurance (Superintendencia General de Seguros, Sugese), the Superintendency of Securities (Superintendencia de Valores, Sugeval), and the Superintendency of Pensions (Supén).

The composition of the body must guarantee the equal representation of both sexes, ensuring that the difference between the total number of men and women is not greater than one." From the reading of the transcribed Article 239, it is clear that it creates a new body within the structure of the Judicial Branch, called "Administrative Board of the Judicial Branch Retirement and Pension Fund," which is granted complete functional, technical, and administrative independence to exercise the powers, competencies, and attributions granted to it by law, listed in subsections a), b), c), d), e), f), g), h) and i), of the article itself, for the fulfillment of its duties, for which it shall have instrumental legal personality. Thus, an administrative body is created ex novo and attached within the structure of the Judicial Branch, with specific competencies and attributions; and, concomitantly, competencies and attributions previously granted—by formal law—to the Superior Council of the Judicial Branch are subtracted and eliminated. This circumstance alone, for the reasons stated, obliges the legislative body to necessarily consult the bill with the Judicial Branch, under the terms set forth in Article 167 of the Political Constitution, since it modifies the administrative organization of the Judicial Branch, with the creation of a new administrative body, and the suppression of competencies of the Superior Council in favor of that newly created body, which clearly affects the independence of that Branch of the Republic.

The same can be said in relation to Article 240 of the law, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, regarding the composition and appointment of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, their term of office, the designation of the person to preside over it, and the requirements to be a member of that Board, among others. It should be noted that even though the Full Court is empowered, by the Ley Orgánica del Poder Judicial, to issue the internal regulations necessary for the proper functioning of the Judicial Branch, the fact that, through the law, it is imposed the obligation to regulate matters concerning the term of office of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Supreme Court of Justice, implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. At first glance, the cited regulation removes from the President of the Supreme Court of Justice, and consequently, from the President of the Superior Council of the Judicial Branch, the power granted by the Ley Orgánica del Poder Judicial to administer the Pension and Retirement Fund of the Judicial Branch, precisely in accordance with the investment policies established by the Full Court, as currently contemplated in Article 81, subsection 12.

Notwithstanding the foregoing, the substitute text of the bill, which was adopted by the Special Commission in the session of July 27, 2017, was not consulted with the Supreme Court of Justice, despite containing a series of regulations that affect the organization and functioning of the Judicial Branch. However, as stated in the majority opinion, at folio 2625 of the legislative file (expediente legislativo) it is recorded that, in response to a motion approved on July 27, 2017, by the Special Commission, by official letter number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Committee Area of the Legislative Assembly granted a hearing to the Judicial Branch regarding the affirmative majority report, based on which the Supreme Court of Justice issued its opinion through official letter number SP-253-17 of August 10, 2017, as recorded at folios 2759 to 2807 of the legislative file. This means, then, that the Judicial Branch was indeed consulted and expressed its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, which occurred even before said text was known by the Plenary.

Despite this, said text was not the one approved in the First Debate by the Legislative Plenary on October 30, 2017, published in Alcance N° 268 to Gaceta Digital N° 212 of November 9, 2017, since the one approved is a substitute text introduced by motion via Article 137 of the Reglamento de la Asamblea Legislativa. This latter text was not consulted with the Supreme Court of Justice, as was appropriate, according to the analysis supra, pursuant to the provisions of Article 167 of the Political Constitution.

As argued by the petitioners, a constitutional violation was incurred in the legislative procedure. In this regard, it should be noted that this Constitutional Court has jurisdiction to hear and rule on defects in the formation of laws when any substantial requirement or procedure provided for in the Constitution or in the Reglamento de la Asamblea Legislativa is breached. This is in accordance with Article 73, subsection c), of the Ley de la Jurisdicción Constitucional, which states:

"Article 73.- An action of unconstitutionality may be brought:

…

• c)When in the formation of laws or legislative agreements any substantial requirement or procedure provided for in the Constitution or, where appropriate, established in the Regulations […] of the Legislative Assembly is violated.

…".

Thus, according to the Ley de la Jurisdicción Constitucional, if what is being analyzed is a formal law approved by the Legislative Assembly, it would be a case of a posteriori control of laws or legislative agreements, through the examination of the legislative file, to determine that no essential defect was incurred in the law-making procedure. Therefore, the defect detected in the legislative procedure of Law No. 9544, called "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Ley Orgánica del Poder Judicial of May 5, 1993, and its Reforms," must be declared due to the omission to consult the Supreme Court of Justice on the substitute text approved in the First Debate, since this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative body within its structure, granting it substantial competencies in pension and retirement matters; and, at the same time, suppressing competencies previously granted by law to the Superior Council of the Judicial Branch (Articles 239 and 240 of the bill).

This Chamber, in support of the above, in Judgment No. 2001-13273, at 11:44 a.m. on December 21, 2001, when resolving a legislative consultation of constitutionality on a bill to reform the Criminal Code, insofar as it modifies aspects related to the organization or functioning—merely administrative—of the Judicial Archive, held unanimously that:

"In the same manner, they modify the scope of functions of the Judicial Archive, increasing the amount of data it must record. All of the above undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the above, the Legislative Assembly omitted to carry out the respective consultation with the Supreme Court of Justice (at least it does not appear in the certified copy of the file sent by the President of the Board of Directors), without said aspects having previously been included in the texts consulted with the Supreme Court of Justice, therefore the Chamber considers that a violation of the duty imposed in Article 167 of the Political Constitution was incurred regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense it must be understood that the procedure followed prior to the approval of the amended report is null and void from the constitutional point of view and must be declared as such." It should be noted from the foregoing that the identified defect was not remedied in the second debate, even if the Law had been approved by a qualified majority, because this would only be the case if it involved the approval of a text whose mandatory consultation with the Judicial Branch was required, because it affects its organization, structure, and functioning—as in this case—, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it, departing from the technical opinion of the judicial body. None of this occurred in the legislative procedure, since Law No. 9544 of April 24, 2018, did not even obtain the qualified vote in the second debate, and even worse, the approved text was without institutional consultation. The crux of the problem before us is really the approval—in the First Debate—of an unconsulted text, in contravention of the provisions of Article 167 of the Political Constitution, a procedural defect that is insurmountable and irremediable. This is because, although it is true that the substitute text of the bill adopted by the Special Commission in the session of July 27, 2017, was consulted with the Supreme Court of Justice, this text was not the one finally approved in the First Debate, but instead a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been explained. And even more so, although the previous text approved by the Special Commission in the session of July 27, 2017, was indeed consulted with the Court, since the latter expressed disagreement with the text, a qualified vote by the Plenary was mandatory under the terms of Article 167 of the Constitution, which was also not done.

It is worth remembering that the purpose of institutional consultation is the protection of judicial independence, which is much more complex than reducing it to the protection of a jurisdictional forum. The mandatory institutional consultation must be timely, because otherwise, it would be a paper obligation that would not provide the true safeguards that the constitutional text seeks to establish between equal Branches of the Republic. Upholding a contrary position, and permanently, by the majority of the Court will not be sustainable over time, because even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is so mostly, relative to the citizen guarantees that the Constituent Power sought to ensure in Article 167, and later improved with the reform of Article 177 of the Political Constitution.

The Full Court, in Session No. 27 of August 7, 2017, Article XXX, when responding to the consultation by the Legislative Assembly on the Affirmative Majority Report approved by the aforementioned Special Commission, ordered:

"It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial employees since it means a reduction in their retirement, even when they have met all the legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding quotas; the payment of income tax; contributions both to the Pension and Retirement Fund of the Judicial Branch and to the system of the Caja Costarricense del Seguro Social and another series of burdens that, if the text is approved as proposed by the ruling Commission, would result in confiscatory actions.

It cannot be ignored that the creation and nature of the Pension and Retirement Fund of the Judicial Branch responds to criteria of stability, independence, preparation, and suitability, as established by Article 192 of the Political Constitution, with the aim of promoting the permanence of trained and qualified personnel in the institution, and the reduction in retirement enjoyment represents a disincentive for the entry of valuable professional persons, who, considering the economic result of a future assessment, would prefer to pursue their professional career in another labor field.

The judicial, prosecutorial, Public Defense career, and staff in general, having more burdens on their salary—four times more than in other regimes—would receive a lesser benefit.

On the other hand, the renewal of the staff that manages to remain is affected. The Judicial Branch would have elderly civil servants who remained working solely because of the reduction their income would suffer if they retired.

The judicial population would be at a crossroads, where, although it is true, there is a desire to opt for that right and the motivation to retire and rest, they are placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal or pre-pension acquired expenses, and the natural ones due to reasons of age. However, this process also has its restrictions; from the legal point of view, the Ley Orgánica del Poder Judicial prohibits retired persons from opting for another job, and socially it is a reality that after the age of forty there are factual limitations regarding labor re-incorporation.

It has a great relationship with structure and functioning, since competitiveness is reduced for the Judicial Branch in the labor market, to the detriment of the quality of the Administration of Justice. The salary for positions is diminished by the contribution to the pension and retirement regime, which is four times higher than the contribution to other regimes. This hinders the recruitment of human resources and harms the public service.

Furthermore, the regulation of the Pension and Retirement Fund of the Judicial Branch should not be assessed solely from an economic perspective, because we are faced with fundamental—inalienable—rights associated with every worker, who during their working years contributed a percentage higher than the general one to a regime with the expectation of having a pension that allows them to meet their needs and enjoy their retirement years peacefully and with quality of life, together with their environment.

The imposition of this new tax burden affects vulnerable population groups—such as older adults—harming the weakest party, precisely the one that requires greater protection from the State.

The proposed tax is imposed at a time in the retired person's life when they are most vulnerable, nearing or already in old age. It cannot be overlooked that it is at this stage where people generally require greater medical care, special care, among others, given that during their working life, some to a lesser or greater extent, depending on the income received, contributed to the regime with the expectation of having the resources foreseen to face this process, and if this Bill is approved, that life plan would be truncated.

It would cause a significant social impact, since people in retirement unexpectedly lose an important part of their income, but retain a status of pre-established expenses, which becomes a repercussion not only economic but also on their health, being contrary to the intended objective for a pension system, which is to have sufficient income during life after work, a scenario in which it is important to remember that on many occasions, the retired person continues to have other older adults or minors under their care and maintenance.

Taking into account the observations raised regarding the Bill processed under file 19922 (20035), which find adherence and support in the actuarial study carried out by the IICE and based on the powers that Articles 167 of the Political Constitution and 59 subsection 1) of the Ley Orgánica del Poder Judicial estimate that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Legislative Assembly must take into account what was stated by the Full Court in relation to each aspect of the Bill under consultation, unless there is a qualified majority to depart from said binding opinion.

This has been communicated to that Legislative Branch in other consulted bills such as those seen in Full Court Sessions numbers 57-14 of December 8, 2014, Article XVIII; 13-15 of March 23, 2015, Article XXXVII; 2-16 of January 18, 2016, Article XVIII and 14-17 of May 30, 2017, Article XIX, among others, in which the Full Court has deemed it necessary to point out the impact of the Bills on the internal structure of the Judicial Branch.

As a corollary, regarding the Bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch." The final part of the cited constitutional article (167) literally states that "to depart from the opinion of the latter [The Court], the vote of two-thirds of the total members of the Legislative Assembly shall be required"; and this final text—not consulted in any case—was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). And, for the second debate, it did not obtain the qualified majority, reaching thirty-four votes (folios 4437, 4608, and 4637 of the legislative file).

B.- The legal and social dynamics that informed the reform of Article 177, Constitutional. It is necessary to address the majority opinion, which we consider with respect—but with equal vehemence—the reasons why it is considered to use a lax interpretation of the obligation of institutional consultation established in Article 167, Constitutional, in addition to what was previously stated. It is clear that, in general, the constitutional doctrine underlying institutional consultation is based on similar reasons: to guarantee that the legislator has first-hand the best information to legislate, that is, to have the specific technical opinion. It involves the recognition by the Constituent Power of institutional autonomies, as well as, to its highest degree, the defense of the independence corresponding to a Branch of the State or a fundamental constitutional body of the State. In complex legislative procedures, such as those where the Judicial Branch has a conflicting opinion, it is when a qualified majority of legislators is most required to promote those significant changes in legislation through a true consensus.

Although this Chamber, in some of its judgments, has established that institutional consultation does not apply to bills of a national or general nature, this jurisprudential criterion alone cannot suffice to dismiss the need to burden the legislative procedure in the Legislative Assembly when it concerns the qualified majority established in Article 167, Constitutional. This must be dimensioned not only referring to matters that relate to the institutional autonomy of the Judicial Branch, but especially to those referring to the direct or indirect impact on judicial independence, which is guaranteed in the Constitution, through the fundamental organic structure of the State. This is especially so if, as in the case before us, there have been various defects in the legislative procedure, referred to later.

It is clear that criteria for denying institutional consultation based on considering a bill to be of a national or general nature cannot be used indiscriminately, especially because under that classification a large number of bills that have an impact on the national budget would fall; in this situation, a vast majority would have a national impact used to establish the defense of public objectives viewed from economistic criteria. On the contrary, this minority considers that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental body of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent effects on the judicial function (which is universal and has full jurisdiction over all legal disputes), which expresses the fundamental control functions, as much and more than those of semi-autonomous and autonomous institutions, because it relates to the functional specialty and independence of a branch of the Republic. The absolute weight of the fundamental institutionality of the State must set the criteria for the examination and scrutiny that this Constitutional Court must conduct, so that it cannot be examined on the same terms as other autonomous institutions, since evidently the consequences are very different for the State and the population in general. It suffices to cite Judgment No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

"…in general, the judicial function is universal and has full jurisdiction over all legal disputes that arise in the country. Universality refers to the jurisdiction over all disputes submitted to the Courts of Justice, and even those not contained therein or in the law by the principle of hermeneutic plenitude (Article 153 of the Political Constitution). Universality presupposes jurisdiction over all individuals in dispute, including in accordance with the general principles of Public International Law and Private International Law. The Judicial Branch has jurisdiction to decide definitively on all disputes, channeling matters in accordance with the respective procedure of the procedural iter, concluding, generally, with a judgment—the normal way of ending the process—with the status of res judicata, which is an expression of the power and function of full, universal jurisdiction, and which implies the prohibition of reopening the same dispute for discussion, to prevent the perpetuation of conflicts and their threat to peaceful coexistence in society.

It is the tombstone that prohibits reopening the discussion on the same facts.

The Constituent Power of course assigned a concrete field of action to the Judicial Branch so that it functions with independence, which is nourished by and participates in all Western thought, inspired by the principles of impartiality and justice, it simply cannot be compared to or assimilated with that of the minor entities of the State; on the contrary, it is clear that Article 167 of the Political Constitution is situated in consideration of the institutional importance and its functional autonomy in the grand scheme of the State.

Earlier in this same ruling, it was also established that:

“This leads to the principle of functional legality, which entails the exercise of the constitutional competencies of the State, the achievement of the essential objectives of each branch without extending to those of the other independent and equal-ranking Branches, and by each exercising the functions of checks and balances it is possible to control and limit the other Branches, as authorized by the Political Constitution. In accordance with the distribution of the fundamental functions of the State, when the Legislative Branch enacts laws, it is subject to the supremacy of the Political Constitution and to the limits enshrined by the Political Constitution, which definitively conditions its regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could not fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the fundamental Charter; finally, the Judicial Branch could not rule against the grain of the norms applicable to a specific case, except for a conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Political Constitution, remaining subject to them. In accordance with Articles 10 and 152 et seq. of the Political Constitution, it must ensure the regularity of all legislation, and therefore could not apply invalid or unconstitutional norms, since coupled with the fundamental function of imparting justice, it must ensure that no action or omission violates the essential principles of any social and democratic Rule of Law State, among them: the principles of legality, normative hierarchy, and respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch ultimately interprets and applies the Political Constitution, having the control of constitutionality of norms and omissions—the monopoly of rejection—when legislation is contrary to it, and when it violates fundamental rights, because naturally it is the ultimate guarantor of the principle of legality, the ultimate defender of the aims and objectives of the State and of the realization, through Law case by case, of the well-being of the human being.” Now then, the ruling addresses the generalities of the Fund and its legal development from the beginning of the last century, in line with Ruling No. 2018-5758 of 15:40 hours on April 12, 2018, to explain the legal development of social security and the pension regime of the Judicial Branch. However, reference should have been made to the fact that the shortcomings of the system also served as a spur at the constitutional level, since there were others that were conceived to guarantee greater institutional stability and in favor of judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the country's institutionality, that which was obtained with the reform of Article 177 of the Constitution, with which the economic independence of the Judicial Branch was guaranteed. It is therefore worth stating that if the institutional and social dynamics of that time were important, even more so were those of the amendment to the Political Constitution, which are not negligible at all, since they were aimed at strengthening the Judicial Branch, and with equal weight, producing protection within the body of officials. The economic and legal dynamics say as much or more, because despite the legal achievements and due to the number of problems that existed in the period prior to the constitutional reform, a substantial improvement of that economic independence of the Judicial Branch was conceived from within the Full Court, and was accepted by the Legislative Assembly, in the Political Constitution itself. There is no doubt that the protections that the derived Constituent Power established in the reform are equally distributed over the stability of the judicial body of officials. Thus, limitations were contemplated in facilities and infrastructure, providing better work tools, improvement of salaries, more resources for the Retirement and Pension Regime of the Judicial Branch, among others. The claims of the petitioners should have found an echo in this route of the unconstitutionality action, some of which are enumerated at the beginning of this dissenting vote. Judicial independence is defended with the tools precisely provided by the Constituent Power, within which the most consolidated democracies in the world dedicate themselves to producing instruments of protection for judicial and economic independence, one of them being the qualified vote in the event that a bill affects the organization and functioning of the Judicial Branch.

In Ruling No. 2006-07965 of 16:58 hours on May 31, 2006, this Chamber established that:

“VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the Judicial Branch is responsible, par excellence, for the exclusive exercise of the jurisdictional function—as was noted in the preceding recital—the truth is that it also exercises, exceptionally or extraordinarily, functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to one organ or entity, nor does it possess a typical content that characterizes it, since, as doctrine has rightly pointed out, it is easier to describe the public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and necessitates an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, promptly and fully. This is what has been called the 'public service of administration of justice.' Thus, the auxiliary administrative support or apparatus that allows judges and courts to issue their resolutions makes up said service, with which the concept is referred to the administrative profiles of the jurisdictional function, such as the organization and functioning of the courts, logistics—supply and provisions—the efficient and effective management, handling, or administration of judicial offices to avoid undue or unjustified delays in the processing of the case, the administrative function exercised by the administrative organs of the Judicial Branch (e.g., administrative resolutions of the Full Court, the Superior Council of the Judicial Branch, the Judicial Inspection Tribunal, the Judicial Council, and, in general, the various administrative departments—Executive Directorate, Procurement Office, Personnel, etc.—) and auxiliary bodies attached to it, such as the repressive police exercised through the Judicial Investigation Agency, the exercise of public prosecution by the Public Prosecutor's Office, and the provision of free defense by means of the Public Defense. However, while that materially administrative function is deployed by the apparatus or organization supporting or backing the jurisdictional one, it must be understood in a strictly exceptional sense, that is, only that which is necessary and suitable to contribute to the exercise of the materially jurisdictional function is admissible, and no other. By reason of the foregoing, by application of the constitutional principle of the reservation or exclusivity of jurisdiction, it is required that the Judicial Branch must use and allocate the majority of its resources to the exercise of a materially jurisdictional function.

VII.- AUTONOMY AND ECONOMIC INDEPENDENCE OF THE JUDICIAL BRANCH. One of the great historical achievements of the Costa Rican Constitutional Rule of Law State was the economic autonomy of the Judicial Branch achieved by way of the partial reform to the Political Constitution of November 7, 1949, through Law No. 2122 of May 22, 1957. This law added a second paragraph to the original version of Article 177 of the Political Constitution, which provided the following:

'(…)

In the draft budget, the Judicial Branch shall be assigned a sum of no less than six percent of the ordinary revenues calculated for the fiscal year. However, when this sum proves to be greater than that required to cover the fundamental budgeted needs of that Branch, the aforementioned department shall include the difference as an excess, with a national investment plan, for the Legislative Assembly to determine what corresponds (…)'.

This partial reform to the Constitution strengthened, in a manner consistent with Article 9 which proclaims the separation of functions, the independence of that Branch of the Republic. The constitutional amendment originated from the proposal formulated on September 6, 1956, by the then Magistrate Evelio Ramírez to the Full Court, a collegiate body that approved it in the session held that same day. In the justification of the constitutional modification—which would later become the statement of motives for the reform in the legislative procedure—Magistrate Evelio Ramírez insisted on the need to assign the Judicial Branch a minimum or 'sum of no less than six percent of the ordinary revenues calculated for the fiscal year,' to overcome the lamentable situation of that Branch of the Republic having received in the seven years preceding 1956 only an average percentage of 2.75% in relation to the General Income Budget. The manifest purpose of the Magistrate who promoted the constitutional reform and of the Full Court in accepting his proposal was to have greater financial resources to diversify and strengthen the different jurisdictional orders, increase the number of courts and tribunals and the personnel necessary to meet the demand for the service, reform and improve processes, provide adequate infrastructure and material resources to the courts and tribunals, improve the salaries of those engaged in the delicate and difficult task of administering justice and their retirement or pension regime, all for the sake of seeking a more prompt and full justice. In that sense, Magistrate Evelio Ramírez made considerations such as the following:

'(…) the Supreme Court of Justice, knowing better than anyone the true needs of the Judicial Branch, would prepare its own draft Budget taking into account the factors that, in its judgment, require economic variations within an honest, rational, and fair criterion. And it would not only attend to the proper installation of its numerous offices—which today present an almost ruinous appearance throughout the Nation—but would also supply them with typewriters, adequate furniture, and other material means, indispensable for working with the greatest possible efficiency. Furthermore, all judicial servants could be paid more equitably (…) The same Retirement and Pension Fund—whose stability is seriously threatened—could be reinforced from that global allocation (…) The average percentage that has corresponded to the Judicial Branch in the last seven years has been 2.75 percent, in relation to the General Income Budget (…) Experience has demonstrated that the indicated percentage is entirely insufficient for the adequate functioning of the Judicial Branch. To realize this, it suffices to note the inadequate buildings occupied by almost all the courts of the Republic, the slowness with which the various judicial matters are processed, due to the scarce number of courts and the personnel of those currently operating, the insufficient number of typewriters and other furniture that are of imperative necessity, the low salaries of judicial servants, etc. etc. (…)’.

For its part, the special legislative commission appointed to issue an opinion on the bill to reform Article 177 of the Constitution, in the first legislature, in its report of October 9, 1956 (visible at folios 20-21 of the legislative file), considered the following:

‘This constitutional reform—with which the autonomy of the Judicial Branch will be definitively strengthened in the economic aspect—will make it possible in the future for an adequate solution to be found to the many problems currently confronting said Branch due to the limitation of the economic resources assigned to it in the national budgets. These problems date back a long time and worsen day by day as a consequence of the growth and development of the population, which increasingly demands more justice administration services. The judicial offices do not have sufficient personnel to attend to the many problems arising daily and, in material terms, they are, with very few exceptions, housed in totally inadequate premises and without sufficient furniture or equipment (…) The remunerations of judicial servants, on the other hand, are so meager that the judicial career offers no stimulus or incentive whatsoever to those who wish to begin in it, and this drives away in many cases elements of vocation and capabilities who could, under other conditions, provide their services as Mayors, Judges, or Magistrates’.

Consequently, the guiding idea that inspired the constitutional reform of 1957 was to strengthen the organization and functioning of the Judicial Branch, so that it would efficiently and effectively exercise its essential function of dispensing or administering justice. Under this understanding, any provision of the ordinary legislator tending to attach to the organization of the Judicial Branch organs that exercise materially administrative competencies alien to or that do not pertain to the jurisdictional function is unconstitutional, insofar as it violates financial autonomy and, consequently, the independence of the Judicial Branch, by diverting the use and employment, even if in a small percentage, of the minimum budget guaranteed to it for other purposes. It can be affirmed, then, that the second paragraph of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees an effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and obtain prompt and full justice.” The affirmation that essential administrative competencies of organization and those connected to the jurisdictional function are not being withdrawn is very relative, if, as explained above, an organizational aspect and the administration of personnel of the Judicial Branch are being modified. With this, the history of the constitutional amendment is ignored, where it was indeed contemplated as a justification for passing the reform to Article 177. The majority affirms that it concerns the same essential content of a legal institution, but by doing so, the law eliminates the administration of the pensions in the Superior Council of the Judicial Branch, to grant it to an Administrative Board of the Retirement and Pension Fund of the Judicial Branch. It is true that it remains within the Judicial Branch, but now in a deconcentrated organ, which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156 of the Constitution). There is a schism that produces an effect on the organization of the Judicial Branch, if you will, in a broad sense, on the capacity to organize itself, on the management and administration of the fund, for the exercise of social security rights of the personnel of the Judicial Branch, which, it is worth saying, is contrary to the criterion of the Full Court, due to the omission to conduct an institutional consultation, and for ignoring its opinion against the principle of functional legality of a Branch of the Republic. It should be remembered that the reform of Article 177 of the Constitution came attributed with the vision of reinforcing judicial independence, including that of its officials, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly incorporated later in the Political Constitution of 1949, did not go so far as to explicitly include the lifetime tenure (irreductibilidad) of judicial officials' salaries, as in other latitudes, yet it did work in our country because it allows the Judicial Branch to enjoy the rates of judicial independence that Costa Rica has enjoyed comparatively on a global level, which is clearly the fruit of the economic independence of the Judicial Branch. This has been in part thanks to the recognition of the public employment regime that was consolidated throughout the republican life of this country.

Ruling No. 1996-03575 of 11:18 hours on July 12, 1996, indicated regarding:

“… the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—are the most capable of determining their needs and knowing their particular conditions.” By Ruling No. 1998-005795 of 16:12 hours on August 11, 1998, which established that:

“From the provisions of Article 154 of the Political Constitution—which says—:

'The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence do not impose upon it other responsibilities than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which comprises both the organ or institution as a whole, and the Judge in the knowledge of matters submitted to his judgment. In relation to this official, it must also be recognized that there exists a double protection to his investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is toward the external and the internal, in the sense that he is protected from influences and incidences—both external and internal—that may have one sense or another in the decision of a specific case submitted to his knowledge, so that they rule with strict adherence to the provisions of the applicable norms; in other terms, the judge is protected so that neither the parties involved in the process, third parties, superior judges in grade, 'influential' members of the Branches of the State, even the Judicial Branch, can influence his decision, therefore much less would there be room for the obligation—imposed by the superior in grade—to rule on a specific case in a determined manner or to coerce the judge in that sense. The guarantee of independence of the judges, more than a guarantee for these officials—which indeed it is—constitutes a guarantee for private individuals (parties to the process), in the sense that their cases will be decided with strict adherence to the Constitution and the laws.” By Ruling No. 1998-005798 of 16:21 hours on August 11, 1998, this Chamber established that:

“The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154 (sic). Also, the American Convention on Human Rights, an international normative instrument of direct application in our country, refers to the subject. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that:

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

2.- ...' The independence of the Judicial Organ is posed toward the external. The Judicial Organ is independent vis-à-vis the other Branches of the State, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is asserted that a Judicial Branch is independent, the same must be predicated of its judges, since they are the ones who must make the function entrusted to the former a reality; it is to this independence that I will refer below. The independence that truly must be of interest—without detracting from the importance of that of the Judicial Organ—is that of the judge, related to the specific case, since that is the one that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch helps the judges who comprise it to also be independent, but it may well be that the Organ as a whole has its independence normatively guaranteed, but its members are not independent, for multiple reasons.” This is no small thing, since the organization and administration of the judicial function must not only be limited to the jurisdictional part as the majority understands it, but this is complemented by other organizational functions, which should be respected for it as a Branch of the Republic. As was stated above, the amendment to the Political Constitution contemplated not only the jurisdictional aspects, but also the operational ones of the Judicial Branch, so it would be contemplated by the original Constituent Power in Article 167, because from within the Full Court in 1956, and in the Legislative Assembly of 1957, it adopted, since that foundational era of the Second Republic, responding to the needs of officials in their salaries and pension regime, a core precept for Costa Rican democracy.

It is evident that the Pension and Retirement Fund of the Judicial Branch formed an essential part of the economic independence of the Judicial Branch of that era, and must continue to be so in ours, according to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The derived Constituent Power, by accepting the vision of the Full Court, took a decisive step to receive the management independently and autonomously from the rest of the political powers, which in turn allowed said management and governance to be carried out within the legal and constitutional purposes of the administration of justice. Nor can it be affirmed, as the majority says, that the recognition of the constitutional percentage of 6% was smooth and without any problem; on the contrary, what is characteristic of it is that the relationship between branches has been rocky, rough, abrupt, so that every budget has been obtained with great effort or timely negotiation by the representatives and authorities of the Judicial Branch. In fact, the Constituent Power foresaw such a possibility of negotiation and consideration by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Political Constitution, with the 6% of the ordinary revenues of the fiscal year of the Republic, is an aspect that has served as a stimulus for the legislator to use the orbit of the Judicial Branch as an aggregating factor for administrative institutions alien to the judicial function. Precisely, Ruling No. 2006-07965 of 16:58 hours on May 31, 2006, cited above, concludes with the declaration of unconstitutionality of norms of the Notarial Code, for establishing an organ of an administrative nature such as the Directorate of Notaries within the Judicial Branch in violation of the constitutional principles of separation of functions, reservation or exclusivity of jurisdiction, independence, and financial autonomy of the Judicial Branch, and the right to prompt and full justice of the inhabitants of the Republic.

In continuity with Ruling No. 2017-09551 of 11:40 hours on June 21, 2017, it was also indicated that:

“For all these reasons we must recognize that in order to rationally organize work, with effectiveness, efficiency, simplicity, and speed, every primary function must be accompanied by the other functions—not primary ones of the constitutional organ—and be aligned with the primary function; it is thus that it must be recognized that both the legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, insofar as behind the fundamental function is the administrative function of personnel, public agents and servants, etc. Evidently, in the Costa Rican context it would be a serious contradiction to go against a long legislative tradition of entrusting attributions to a single Branch (which does not exist in other latitudes), but thinking of guaranteeing those horizontal controls in an independent Judicial Branch.” Therefore, if matters related to the pensions and retirements of the Judicial Branch were included as part of that economic independence of the Judicial Branch as a substantive issue since 1956, it is for the undersigned an additional reason to seek the application of Article 167 of the Political Constitution, since the change of scheme for a deconcentration of the administrative organ came to be modified by a subsequent law. This sets the bad precedent that, in the future, transitory majorities in the Legislative Assembly venture into other aspects of the management of the personnel of the Judicial Branch.

Another reason is that a reinforced majority guarantees not only judicial independence from the institutional point of view, but also for the person of the judge individually considered, in which the economic, social, and cultural rights, established through a social security and pension regime, are affected. It cannot be denied that the Judicial Branch forms part of a whole, the 'State,' its strategic and key position within its organization must also be felt, with the public functions of its officials that are highly specialized and attached to the Law, as was described before in the antecedents of this Tribunal, and whose function is ultimate in the resolution of conflicts and as their peacemaker. This clearly has a cost and sacrifice for its personnel, which must be compensated by the 'State,' but even more so in a functional democracy like the Costa Rican one, which must assume not only the economic part of its sustainment but also its protection.

Judicial independence has as its aim to guarantee judicial impartiality, which is shared with the majority of the Tribunal, although not with the clarity that this minority would desire, since the problem of the reform of Article 177 of the Political Constitution crystallized the deeply felt need to protect in general terms the institutionality and the administration—also—of everything related to the personnel of the Judicial Branch, which should be jealously safeguarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed with, in the face of the regressive effects of legislation that may occur in the future. The constant rule of the importance of protecting the part of the remuneration and matters related to the pension regime of judges, of their officials, in the most important legal systems of the world must be brought up.

In this way, the undersigned magistrates consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the lack of consultation with the Judicial Branch on the text approved by Parliament by an absolute majority and not a qualified one, which affects it in its entirety (Article 167 of the Political Constitution), for affecting its organization, structure, functioning, and independence; and, with this, it is contrary to the Law of the Constitution. By reason of the foregoing, it is inconsequential—for the undersigned judges—to proceed to analyze the rest of the substantive allegations made by the petitioners against the substantial content of the law, except in those instances in which it was required to take a position so that there would be a fully concurring vote (Article 60.2 of the Civil Procedure Code), which is reflected in the ruling of the majority of this Chamber.

Luis Fdo. Salazar A. José Paulino Hernández G.

File No. 18-007819-0007-CO Res. No. 2021-11957 of 17:00 hours on May 25, 2021 Additional reasons of Magistrate HERNANDEZ GUTIERREZ On the special, solidarity-based, and redistributive contribution to be borne by retirees and pensioners I.- Initial clarification.

I.First, I must once again warn that from my perspective, these consolidated actions must be dismissed on purely procedural grounds, that is, for essential flaws in the legislative process, as set forth in my joint vote with Magistrate Salazar Alvarado. This circumstance would make it unnecessary for me to address the other issues raised by the plaintiffs. However, given the need to create a majority and issue a conforming vote, I have had to concur with my opinion and vote to resolve certain specific issues, among them, the issue of the special, solidarity-based, and redistributive contribution that "additionally" burdens the retirees and pensioners of the Judicial Branch, of the Administration of Justice. In this regard, I deem it appropriate to set forth the following complementary nuances and clarifications.

II.Second, it is worth recalling that the competence that the Constitution (CP) confers on this Chamber in Article 10 by way of an unconstitutionality action is carried out by confronting the text of the challenged norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles (Article 3, in relation to Article 2, subsection b], of the Ley de la Jurisdicción Constitucional), and it is agreed upon objectively and in complete abstraction from the case motivating the intervention (Cf. Sala Constitucional, judgment # 1147-90 of 4:00 p.m. on September 21, 1990, Considerando II, paragraph 2).

III.Third, it should be noted that in my aforementioned joint separate vote, my position is established to the effect that a fundamental right to retirement or a pension in the judiciary and the Costa Rican Administration of Justice does exist, understood in the same terms as the Chamber established in the foundational judgment #1147-90:

"III. First, the Chamber declares that there does exist a constitutional and fundamental right to retirement (jubilación), for all workers, in general; a right which, as such, belongs to and must be recognized for every human being, under conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, according to which: … This conclusion is confirmed in a series of international human rights principles and norms, which have not only the higher rank over ordinary law conferred by Article 7 of the Constitution, but also direct constitutional protection that practically equates them to those expressly enshrined by the Fundamental Charter itself, pursuant to Article 48 thereof, (reformed by Law No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29 and 30—thus correcting those invoked in the action—of Convention No. 102 of the ILO concerning Social Security, which establish: […] Other international texts also recognize, either specifically the right to retirement —by age or old age— (e.g., Article 16 of the American Declaration of the Rights and Duties of Man; Articles 22 and 25 of the Universal Declaration of Human Rights; Article 31 of the International American Charter of Social Guarantees; Article 5 of Convention No. 118 of the ILO concerning Equality of Treatment in Social Security); or, in general, the Right to Social Security, within which retirement is universally understood to be included (e.g., Article 11 of the American Declaration of the Rights and Duties of Man; and Article 9 of the International Covenant on Economic, Social and Cultural Rights)."

IV.The distinctive features of jurisdictional work that derive from Articles 9, 153, and 154 CP, Article 8 of the American Convention on Human Rights [ACHR], and Article 5 of the Ley Orgánica del Poder Judicial [LOPJ], account for an essential, foundational function, in the context of the Social and Democratic Constitutional State, distinct from the other functions of the State, but which cohabits with them in a relationship of mutual collaboration and cooperation. From judicial independence in general, and economic independence in particular, which is guaranteed to the Judicial Branch, emerges its power to design and promote a retirement regime in accordance with that reality, which not only guarantees permanence in the position, rectitude, objectivity, neutrality, and impartiality, for the active worker, servant, or official, but also, and very especially, protects them during old age, them or their closest loved ones in situations of disadvantage or vulnerability, against certain social contingencies.

V.The existence and constitutional validity of a separate regime has been recognized by this Chamber in its jurisprudence, as evidenced, for example, by that same Judgment #1147-90, Considerandos VI and VII. In its recent advisory opinion #2018-005758, it referred to the transcendence and importance of persons working in the Judiciary and its auxiliary bodies having a Retirement and Pension Regime, in the following terms:

"VI.- … What is clear is that the creation of the pension regime of the Judicial Branch was key to the stability of the administrative and judicial career of its servants and officials, and came to be a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. It allowed, together with the latter, to provide stability to judges and other servants and officials whether active or inactive, which made the judicial career attractive for many jurists and thus favored the stability and specialization of many officials in different branches of the judicial apparatus, but clearly, it was not created as an intrinsic element of judicial independence (the core aspect of the constitutional protection of Article 167 when it speaks of "structure and functioning"), which is constitutionally based on other factors, such as the existence of a career that guarantees objectivity in the selection of judges, based on criteria of suitability and stability, the economic and political independence of the body, among others; but the legislator could well have opted for a single regime for all public employees or workers in general, without it being possible to assert that this reduces the independence of the body. … What is indeed part of judicial independence is that judges have dignified economic sufficiency, whether active or inactive, regardless of whether the pension regime is specific to judges or not. In fact, not all countries have particular regimes for judges, but the most consolidated democracies do take great care to safeguard the judiciary as a key piece of the stability of the Rule of Law. Countries that have bet on the force of law and not of arms for their stability depend on the quality of judges to have a quality democracy, as they are the strategic guardians of the rule of law. In the case of our country, as the State of the Nation has rightly pointed out, the Judicial Branch has the particularity of being a conglomerate of institutions highly relevant to the rule of law (Prosecutor's Office, Judicial Police, Public Defense, and Judiciary) and it was its strength that largely allowed the development and consolidation of democracy in the 20th century in our country. Thus, the first report of the State of Justice states by indicating: […] In that sense, it was a success for the legislator to provide guarantees and incentives to the Costa Rican administration of justice, because only in this way could the rule of law that emerged from the Second Republic be materialized, which would depend for its success on a robust regime of legality and no longer—as was said—on the force of arms, the path chosen by the majority of the world's countries, especially Latin American ones. Nevertheless, it cannot be asserted—from the perspective of the majority of the Chamber—that the pension regime of the Judicial Branch is part of the essential content of judicial independence or that it affects its structure and functioning, although it has, as stated, historically functioned as its necessary complement and for the good of Costa Rican democracy, it must be ensured that it is as stable and dignified as possible. …" (italics are not in the original).

VI.Certainly, the majority opinion reached different conclusions. However, from my perspective, the doctrine, norms, values, and principles underlying said opinion favor that singularity as part of the autonomy of the jurisdiction, of the Judicial Branch, and it is the position that conforms to the precedents and the classic, basic doctrine of the Court (Cf. Judgment # 846-92 of 1:30 p.m. on March 27, 1992, Considerando B, and # 3063-95 of 3:30 p.m. on June 13, 1995). The International Covenants and Instruments on Human Rights and their progressive interpretation cited in that joint vote are clear evidence of the need to enjoy and have a separate regime, which serves as a guarantee of stability for those who choose the sacred ministry of serving the Judiciary, so that they may dedicate and direct their serene strength and clarity of spirit to the fulfillment of the duties inherent to the seriousness of Justice, the most jealous and highest function of the State, as expressed by the distinguished Italian jurist PIERO CALAMANDREI, with no concerns other than those of the exercise of said office.

VII.In matters of Economic, Social, and Cultural Rights, the State's commitment is the adoption of measures "to achieve progressively the full effectiveness of the rights deriving from the economic, social and educational, scientific, and cultural norms contained in the Charter of the Organization of American States, reformed by the Protocol of Buenos Aires, to the extent of available resources, by legislative means or other appropriate means." (Article 26 ACHR; italics not in original); while Article 2, concerning the duty to adopt provisions of Domestic Law, stipulates: "If the exercise of the rights and freedoms mentioned in Article 1 is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional procedures and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights and freedoms." As part of that progression, development, advancement, and non-regression, the Inter-American Convention on the Protection of the Human Rights of Older Persons was enacted, which Costa Rica approved under Law # 9394 of September 8, 2016, and ratified by Decreto Ejecutivo #39973 of October 12, 2016; its set of norms recognizes the right of persons to age actively, with dignity, security, and protection, and imposes on the State the obligation to guarantee its enjoyment and exercise. If the country fulfilled that duty to create the regime, if it has existed since 1937, what it has today is a negative obligation of non-regression, on the one hand, and on the other, a positive task of guaranteeing the enjoyment and exercise of the right itself.

VIII.Inflows or funding sources of the Fund. According to the LOJP, the Pension and Retirement Fund of the Judicial Branch [FPJ or the Fund], has the following inflows: i) a worker contribution of 13% of the salaries earned by judicial servants; ii) a 13% contribution on retirements and pensions; iii) an employer contribution of 14.36% on the salaries and wages of servants, and iv) a State contribution on salaries or wages equal to that established for the Disability, Old Age, and Death Regime of the Caja Costarricense de Seguro Social (Article 236). In addition to that ordinary or common contribution, on retirees and pensioners, by subsequent Law # 9697 of December 5, 2019, called "Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria", a special, solidarity-based, and redistributive contribution is established [or was established] and burdens them when benefits exceed the maximum limit provided by law, in accordance with the respective table (Articles 236 bis and 225); it is clarified that in no case may the sum of that contribution and all deductions legally applied to all pensioners and retirees of the Fund represent more than 55% of the total gross amount of the pension; and it is specified that the resources obtained from that contribution shall flow into the Fund; it is also specified that this new special contribution aims to achieve the sustainability of pensions; the elimination of inequalities in the social benefits of pensions and retirements, as well as "in" the tax burdens, and to give sustainability to the pension system.

IX.Concerning the issue of the funding sources of social security schemes and their responsible parties, in general, note that this has generated disputes and controversies since its origins. For one sector of the doctrine, this should be the responsibility of its beneficiaries only; others indicate that insofar as social security benefits are a prolongation of salary over time, as part of it, the contributions must be paid by the employer. To resolve the dilemma and create the system, in some legislations, an agreement was reached that it should be shared between workers and employers. Thus arose the system of contributions as a mechanism to finance social security. Later, it was given a mandatory, tax-like character, charged to the national budget, and was classified as a special, specific tax, tax exaction, or parafiscal levy, as opposed to a general one, intended to satisfy human need regardless of its cause or circumstance. Costa Rican social security follows this model.

X.In our context, when social insurances were established for the benefit of manual and intellectual workers, it was provided that they would be regulated by the "system of forced contribution by the State, employers, and workers" (Article 70 CP). This distribution of the contribution to the social security budget, also known as a contribution, is an obligation of a legal nature, ope lege, that burdens specific, determined subjects. There is no doubt that its amount or the sources from which it comes should be reviewed with some frequency, whether to improve the regime regarding benefits for its creditors or beneficiaries, or to maintain its existence and financial soundness. And nothing excludes that the legislator, within that freedom of configuration, may indeed create new funding sources aimed at guaranteeing sustainability and that these burden other subjects or taxpayers. But these, insofar as they are different from those envisioned by the original framers, are subject to the entire legal framework for their constitutional validity and legitimacy, as the Chamber has established in its jurisprudential doctrine. Within this latter category falls the special solidarity and redistributive contribution, which is a special, parafiscal levy, intended for a specific purpose; it is not a general tax, which are those directed at satisfying general needs of the nation, of the country (Article 121, subsection 13] CP).

XI.In this specific case, by express definition of the aforementioned Law #9697, the contribution is presented as a technique devised by the legislator to: i) eliminate inequalities in benefits or entitlements; ii) eliminate inequalities in tax burdens; iii) bring new contributions for the sustainability of the Fund (Article 3). From our perspective, the contribution created in Law # 9544, assuming its own constitutional validity, as the Chamber has established in its precedents (judgment # 846-92 of 1:30 p.m. on March 27, 1992), is incompatible with the constitutional principles of reasonableness, proportionality, and the prohibition of arbitrariness, insofar as its imposition is not the result of specific prior technical studies that serve both as justification and as a limit on the exercise of power.

XII.This is not a matter of "establishing national taxes and contributions," referred to in the CP (Articles 70 and 121, subsection 13), where discretionality and legislative freedom of initiative prevail. They are specific, targeted legislative measures that concern a determined sector of the population, aimed at guaranteeing the solvency and sustainability of the Fund; as such, they must be based on a technical, actuarial, economic study that highlights what those real needs are and what measures are possible to implement and who is responsible for them. The catalog of these measures must pass the test of reasonableness, suitability, and constitutional appropriateness for their substantial validity and conformity with the Political Charter, as this Chamber has established in its abundant jurisprudence. In this sense, in the classic and foundational judgment # 1739-92 of 11:45 a.m. on July 1, 1992, it was stated:

"I- … c) But a further step was taken in the Anglo-American jurisprudential tradition, by extending the concept of due process to what in that tradition is known as substantive due process of law, which, in reality, although it does not refer to any procedural matter, constituted an ingenious mechanism devised by the Supreme Court of the United States to assert its jurisdiction over the Federated States, in line with the Fourteenth Amendment to the Federal Constitution, but which among us, especially lacking that need, would simply equate to the principle of reasonableness of laws and other public norms or acts, or even private ones, as a requirement for their own constitutional validity, in the sense that they must conform, not only to the concrete norms or precepts of the Constitution, but also to the sense of justice contained therein, which implies, in turn, the fulfillment of fundamental requirements of equity, proportionality, and reasonableness, the latter understood as suitability to achieve the proposed ends, the assumed principles, and the values presupposed in the Law of the Constitution. Hence, laws and, in general, norms and acts of authority require for their validity, not only to have been enacted by competent bodies and due procedures, but also to pass substantive review for their concordance with the supreme norms, principles, and values of the Constitution (formal and material), such as those of order, peace, security, justice, liberty, etc., which are configured as standards of reasonableness. That is, a norm or a public or private act is only valid when, in addition to its formal conformity with the Constitution, it is reasonably founded and justified in accordance with the constitutional ideology. In this way, it is sought not only that the law not be irrational, arbitrary, or capricious, but also that the selected means have a real and substantial relationship with their object. A distinction is then made between technical reasonableness, which is, as stated, the proportionality between means and ends; legal reasonableness, or the adequacy to the Constitution in general, and especially, to the rights and freedoms recognized or assumed thereby; and finally, reasonableness of the effects on personal rights, in the sense of not imposing on those rights other limitations or burdens than those reasonably derived from the nature and regime of the rights themselves, nor greater than those essential for them to function reasonably in the life of society. …" It is precisely this technical study that must determine the depth of the measures, their necessity, timeliness, advisability, suitability, scope, amount, and the taxable persons called upon to bear them. Of course, the political discretionality enjoyed by the legislator, in this case, is limited by reasons of justice, logic, timeliness, and advisability, in addition to fundamental rights, and the dignity of persons (cf. Articles 15 to 19 of the Ley General de Administración Pública - LGAP). And this is because that measure, insofar as it affects the beneficiaries of the Fund themselves, a specific group of persons, must ponder its implications, assess and weigh the impact that its implementation may suppose on their acquired rights, on their patrimony. Of course, this right, like all Human Rights, must have minimum guarantees aimed at preserving its hard core, its essential content, so that its holder may enjoy and exercise the right itself.

XIII.If, due to the complexity of parliamentary dynamics, it is not possible to gather that technical study in a timely manner, or if it proves insufficient, there are regulatory precedents that demonstrate the existence of other, less invasive techniques, less harmful to the fundamental rights of persons; the technique used in social security matters consists of creating a type of band system, of limits, within which (from and to) the body or entity responsible for the implementation and administration of the Fund may set the concrete measures, the ceilings, after specific actuarial, financial, or economic studies that determine them.

XIV.It has also been said that there was urgency, haste, in adopting the financial measures under challenge, to prevent the Fund from becoming insolvent within a short period, and that the idea was to guarantee its soundness. In this sense, it must be borne in mind that satisfying those ends is as legitimate and responsible as it is commendable, but it is not exempt from ex post jurisdictional control to determine its legitimacy. Urgency produces an empowerment of public power, an increase in the authorities' faculties, but it does not generate or create a zone of immunity that did not previously exist. The rights of persons limit the exercise of those powers, and empower their review by the jurisdiction.

XV.It must be remembered that for elementary reasons of legal certainty and legitimate expectations, the guarantees of Article 34 CP are directed, in the first place, at the legislator, at legislative work. There is no doubt that those who enter the regime, the Fund, and contribute periodically during their active working life, through the payment of a determined contribution, in exchange for a determined or determinable counter-performance, to be enjoyed once the right is acquired, have the right to have the amount of that benefit respected, in terms equal or identical to the promised benefit. The confidence generated during the formation or consolidation period cannot be altered or disregarded through the implementation of measures that have the effect of, or result in, a hollowing out of the essential content of the fundamental right involved.

XVI.In this case, the contribution is presented and offered as a new funding source. However, the Law establishing it indicates that it seeks to create a more egalitarian, more equitable system within the regime. That is, it is an instrument designed to level out differences; it aims to eliminate inequalities in benefits or entitlements, and in tax burdens or contributions. This is the true object and purpose that drives the exercise of that reforming power of the legislator; its intrinsic purpose is to cut back the highest benefits, to lower their amount, in pursuit of that equalization. But that mechanism does not necessarily favor the least advantaged, those who receive less, as it does not increase the amount of the promised benefits. What is obvious, what is evident, is that it does generate the opposite effect. As is well known, equality operates among equals; never among unequals. If, to achieve that alleged equality or leveling, an additional contribution duty is introduced, "in addition to," as the law qualifies it (Article 236 bis), it is necessary to have technical studies that modulate the exercise of that power, that highlight the necessary balance that must exist between the sustainability of the Fund, the need to be addressed, and the enjoyment and exercise of the ongoing benefits. Otherwise, one falls into legislative arbitrariness, into confiscatory behavior, by setting a cap and depriving of the enjoyment of a substantive portion of the benefit, without objective justification; if this justification does not exist or is absent, the measure becomes materially an expropriatory, disproportionate operation, due to its effects and impact on the finances of the retired or pensioned person who duly contributed in proportion to their higher income. The way to correct inequalities of origin, insofar as possible, cannot be at the expense of, or with the sacrifice and excessive reduction of, the fundamental rights of some of the entitled persons. Those who today enjoy a benefit under certain conditions acquired it under the protection of a regime existing at a specific historical moment; their role has been limited to complying with pre-established conditions or requirements. Therefore, the changes and improvements that one wishes to introduce to the regime, for the benefit of all, must be respectful of those rights, by an elementary principle of legal certainty, whose first addressee and the one called to ensure its effectiveness and respect is precisely the legislator. From this core principle derives another of equal nature and hierarchy, that of good faith and its corollary of legitimate expectations, which not only protect those rights but also limit the exercise of that immeasurable power.

XVII.The ideal system of a retirement regime, to which there seems to be an aspiration, which presupposes the equality of all in everything, must inspire the creation of a new model, directed at setting the conditions for the enjoyment and exercise of future retirees or pensioners. But the correction of the current one must be approached and agreed upon with respect for those rights and guarantees of the entitled persons or beneficiaries. The aspiration to achieve the effectiveness of rights, as indicated by the Charter of the United Nations, in its Article 55, subsection c), approved by Costa Rica, under Law # 142 of August 6, 1945, in relation to Article 2 of the ACHR, the duty of solidarity, good faith, human dignity, are principles that limit the exercise of power, in protection of the legitimate expectations of those who acquired and consolidated their right under the protection of a determined regime.

XVIII.This Chamber, from its early judgments, established the relationship or similarity existing, at least from genus to species, between salary and pension. In judgment #1147-90 it was stated:

"X.- On the other hand, the Chamber observes that the challenged provision of Article 240 of the Ley Orgánica del Poder Judicial is the only one of the various retirement schemes in force in Costa Rica that imposes the loss of the right due to vices, moral failings, or criminal responsibilities of the beneficiary; whereby it also becomes unconstitutional for violating the principle and right of equality, without discrimination, recognized, in general, by Article 33, and, especially, by Articles 57 and 68 of the Constitution, the latter regarding matters of salary and working conditions, of which retirement (jubilación) is either a species or justifies an analogous application of its rules and mandates; a principle and right of equality without discrimination, as was said, invariably recognized by Constitutions and by international human rights instruments, both as a fundamental right in itself and as a necessary criterion for the interpretation and application of all other rights, fundamental or not (see citations in Considerando V above)." Later, in judgment # 10513-2011 of 3:01 p.m. on August 10, 2011, it expressly established that retirement or pension replaces salary. This implies, on the one hand, that the guarantees and protective norms that the latter enjoys permeate the former, among them, the intangibility or lifetime tenure (irreductibilidad) that does appear explicitly enshrined in some foreign constitutional texts that even served as consultation and inspiration to the Framers of 1949, regarding judicial independence. So, between one income and another, there must be a reasonable equivalence respectful of persons' rights and inherent dignity. The pension or retirement must also serve so that those who have dedicated their lives to judicial service, to the judiciary, enjoy during their retirement period, during their old age, an income that allows them to live with dignity, to age under adequate economic conditions, proportionally identical to those they had as active workers or servants. Social security in general, embedded in the Chapter on Social Rights and Guarantees, forms one of the norms that best delineate the transformation of the liberal Rule of Law State into a Social or Welfare State, by placing the person, whether in their individual version or as a group [family], at the base, at the center of the duties of public powers (Cf. judgment #846-92). But that change, that transition, does not mean a rupture of the former, but rather an effort to perfect it, as scholars of Constitutional Law point out today. The need to protect their dignity, before, during, and after their existence, obliges the adoption and design of adequate and timely retirement systems.

As has already been stated, this right is not unlimited; like any other right it is subject to conditions and limitations:

“VII.— In any case, this Chamber considers that the right to retirement (jubilación), in general or in the special regimes referred to, cannot normally be conditioned on the conduct of its holder, whether such conduct occurs before or after its consolidation as an acquired right. In reality, it is not ignored that the right to retirement, like any other right, is subject to conditions and limitations, but both only insofar as they are provided for in the norms that recognize and guarantee them and are, furthermore, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than the expression of a well-known principle of Human Rights Law, which may be called proportionality, and which is generally recognized as a sine qua non condition of the limitations and restrictions on such rights exceptionally authorized by the very texts that enshrine them; a principle that is listed, for example, in Articles 29.2 and 30 of the Universal Declaration of Human Rights, 29 and 30 of the American Convention on Human Rights, 5 of the International Covenant on Civil and Political Rights, and 4 and 5 of the International Covenant on Economic, Social and Cultural Rights. In such cases of reasonableness and proportionality would obviously fall the conditions established in Articles 237 and 239 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), to which the challenged Article 240 expressly refers; and would also fall, even in the absence of an express text, for example, the suspension of retirement when the beneficiary returns to paid active service, and while he or she remains so, or the loss of the rights of the heirs in events such as the children reaching the age of majority or the marriage of the surviving spouse.” (Judgment # 1147-90).

However, from my perspective, the reductions or limitations must be agreed upon based on technical studies, due to the basic requirements of the principles of constitutional reasonableness and proportionality.

JOSE PAULINO HERNANDEZ G.

MAGISTRATE File: 18-007819-0007-CO Decision No. 2021-011957 DISSENTING VOTES AND NOTES OF MAGISTRATE GARRO VARGAS Index I.— Note on the defects in the legislative procedure. The constitutionality of Art. 234 bis of the RAL II.— Different reasons regarding the defects alleged in the session of the special commission of July 27, 2017 III.— Own reasons regarding the unconstitutionality of the special solidarity and redistributive contribution insofar as it exceeds 50% of the gross amount of the pension or retirement IV.— Different reasons regarding the allegations relating to the omission to take into account the differentiation in the retirement age between women and men

V. Separate Note

A.— On the composition of the Chamber B.— On the alleged connectedness C.— On the 18-month period provided in Transitory Provision VI D.— On the regulatory plexus I.— NOTE ON THE DEFECTS IN THE LEGISLATIVE PROCEDURE. THE CONSTITUTIONALITY OF ART. 234 BIS OF THE RAL In the case sub lite, I concurred with the majority of this Chamber regarding the dismissal of the action of unconstitutionality (acción de inconstitucionalidad) in relation to the alleged defects in the legislative procedure.

However, I have deemed it necessary to record a note in which I outline my reasoning regarding the argued defects and, specifically, on the application of a special procedure regulated through the provisions of current Art. 234 bis of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa, RAL) (originally the ordering of this special procedure was contemplated in Art. 208 bis, even when Law No. 9544 of April 24, 2018, "Reform of the Organic Law of the Judicial Branch (LOPJ)," was approved; however, in 2019, a reform to the RAL was approved that moved the numbering in question).

In this specific case, first, the constitutionality of Art. 234 bis of the RAL was questioned. Said numeral provides the following:

"Article 234 bis.—Special Procedures By means of a procedural motion (moción de orden), approved by two-thirds of its votes, the Legislative Assembly may establish special procedures to process reforms to its Regulations and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the voting required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment." Regarding the constitutionality of said procedure, there are numerous precedents from this Court that endorse its constitutionality (see considering clause (considerando) IX of this judgment). The foregoing, starting from the recognition of the self-determination of the Legislative Assembly to regulate its internal corporis as expressly contemplated in Art. 121, subsection 22 of the Political Constitution, which literally provides that it corresponds exclusively to the Legislative Assembly itself "to adopt the Regulations for its internal regime. Once adopted, it may not be modified except by a vote of no less than two-thirds of the total of its members." Therefore, in line with the referred constitutional provision, the Legislative Assembly is autonomous in the regulation of its special legislative procedures as long as it is approved by a vote of no less than two-thirds of its members and, additionally, the special procedure respects the essential values and principles that must be fulfilled in all parliamentary procedures, such as the democratic principle —the ultimate foundation of the RAL itself and the special procedures authorized in light thereof—, political pluralism, the protection of minorities, representativeness, the functional rights of the legislators, as well as the guarantees of participation, publicity, and transparency.

It is appropriate, for these purposes, to reiterate what this Chamber has indicated regarding the use of this mechanism to approve special procedures for certain bills:

"This Constitutional Court understands that the bill to add Article 208 bis to the Regulations of the Legislative Assembly is in accordance with the Law of the Constitution, provided that it is provided or interpreted that the procedural motion (moción de orden) therein provided must be approved by a vote of no less than two-thirds of the total of the members of that body, since establishing or providing special procedures for the processing of the reform of the Regulations and certain bills, implies a reform or modification of the Regulations, that is, of the ordinarily provided procedures, so that in order to comply with what is established in numeral 121, subsection 22), of the Political Constitution and, above all, to be consistent with the democratic principles and the participation of minorities in making a fundamental or transcendental decision, such a qualified or aggravated majority must be required, which implies obtaining a legislative consensus in which different political-party or ideological orientations concur for its respect. To the foregoing, it must be added that the observance of the requirements established in interpretive agreement No. 4084 of June 10, 1999 —as it concerns the exercise of the power of reform— guarantees such principles, as this Chamber stated in Decision (Voto) No. 8408 of 3:24 p.m. on November 3, 1999, partially transcribed in the third considering clause of this judgment. B) Observance of the principle of legal certainty: In order to adjust the bill of addition to the constitutional principle of legal certainty and to avoid any surprising factor, this Court assumes that it must be provided or understood that the motion that reforms the regulations, when establishing a special procedure, must indicate in a sufficiently explicit, clear, and precise manner the various phases or stages in the substantiation of that special proceeding (iter especial), so that as two-thirds of the total members of the Legislative Assembly are required for its determination, the democratic principles and principles of political and free participation of minorities are also respected." (Advisory Opinion 398-2005, regarding the bill to add an Art. 208 bis to the RAL. See also judgments numbers 2007-2901, 2007-9699, 2008-07687).

Thus, in the precedents of this Court, it has been made clear that this possibility is legitimate under the condition that the motion in question to authorize a special procedure in light of Art. 234 bis of the RAL is approved by a vote of no less than two-thirds of the total members of that body and that, additionally, the principle of legal certainty is respected; in such a way that, when adopting a special procedure, the motion must be explicit, clear, and precise regarding the various phases or stages in the substantiation of this special proceeding. This, although singular due to the shortening of certain time periods (plazos) and the introduction of some limits or guidelines in the processing, must necessarily be consistent with the respect for the abovementioned constitutional principles.

Now then, in this specific case, the use of the special procedure of Art. 234 bis of the RAL was questioned due to the content of the bill under examination —a point that was rejected by the majority of this Court upon interpreting that the content of the reform does not affect judicial independence— and not due to the procedure that was itself approved, which in any case was examined in Advisory Opinion No. 2018-5758 —in which I did not participate— dismissing a defect on this matter. On that occasion, it was affirmed that the approved special procedure was respectful of the constitutional principles of equality, reasonableness, proportionality, democratic participation, and the right of amendment. On this occasion, the manner in which the procedural motion (moción de orden) was approved is also questioned. Regarding this, I also concur with what was resolved by the majority in considering clause XII of this vote, rejecting that there was any defect in the parliamentary procedure.

Additionally, the claimants alleged the unconstitutionality of the parliamentary process due to the late publication of the substitute text (texto sustitutivo) approved in the first debate. Regarding this grievance, it is appropriate to note two aspects.

In the first place, the procedure approved by the motion of Art. 234 bis did not foresee that, in this specific case, there would be successive publications after the report (dictamen) of the bill in committee, so that, in light of the approved procedure, it was not required at that stage of the parliamentary procedure —consideration of substantive motions in the Plenary— that a new publication of the bill be made prior to its vote in the first debate. Hence, no infringement of the special procedure approved for this singular bill is noted. Recall that the special procedure motion ordered the following:

"If during the consideration of the file in its processing in committee, a motion for a substitute text is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta (Diario Oficial La Gaceta)." (Highlighting does not correspond to the original).

Consistent with the foregoing, it must be said that the obligation to carry out new publications of the bill, due to the introduction of substitute texts or substantial changes in its content, was foreseen for the stage under the responsibility of the Special Advisory Committee (Comisión Especial Dictaminadora). Therefore, in itself, the special procedure did not contemplate this obligation for the processing in the Plenary. In any case, such omission was not questioned by the claimants. In the second place, as reflected in the majority vote, from the analysis carried out of the briefs filing the corresponding actions of unconstitutionality, it was not possible to determine what those supposed substantial changes in the bill were that, in the opinion of the claimants, warranted a new publication because it was, according to them, a true substitute text.

Due to the characteristics of this constitutional review process, the claimants bear the argumentative burden, so that if there is no identification of what the supposed substantial changes in the bill were, this Court would be wrong to substitute what it is up to the claimants to demonstrate in order to affirm the unconstitutionality of a specific law.

For what has been stated, I concur with the majority of this Court regarding the dismissal of these aspects of the action of unconstitutionality. But I have indeed considered it necessary to make the caveat that every parliamentary procedure approved in light of Art. 234 bis must be respectful of the constitutional principles listed herein, because although it is a special procedure —which by its nature cannot be applied with the rigor of the ordinary procedure, since otherwise it loses its specificity— it must respect and not neutralize the cardinal principles of the parliamentary procedure indicated.

II.— DIFFERENT REASONS REGARDING THE DEFECTS ALLEGED IN THE SESSION OF THE SPECIAL COMMISSION OF JULY 27, 2017 In the action of unconstitutionality processed in file No. 18-14168-007-CO, it was questioned that the Special Commission (Comisión Especial) appointed to hear the bill, prior to the corresponding report, approved a new substitute text that was not analyzed or discussed extensively in the session of July 27, 2017. In that same session, as noted, the bill was reported on. The claimants allege that according to the motion approved to process said file, pursuant to the procedure authorized by the then Art. 208 bis of the RAL, it was foreseen that, upon the approval of a substitute text, the processing of the bill had to be suspended. The claimants questioned that, consequently, the extraordinary session of the Special Commission was vitiated by nullity, since the bill was technically and legally in suspension until the text was published in the Official Gazette La Gaceta.

As I noted supra, the text of the motion that regulated the legislative procedure applied to this specific bill provided, on this specific point, the following:

"h- If during the consideration of the file in its processing in committee, a motion for a substitute text is approved or when the committee agrees on changes that substantially modify the bill, the Committee Chair shall request the Legislative Directorate to agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Publicity and the consideration of the bill shall be suspended, also proceeding (sic) to make the corresponding consultations. If after eight business days no response is received to the mandatory consultations referred to in this subparagraph h), it shall be understood that the consulted body has no objection to make to the bill." (Highlighting does not correspond to the original).

Now then, from the careful review of the parliamentary proceeding, it was possible to verify that on July 27, 2017, the deputies of the Special Commission presented and approved a new text that was subsequently reported on with the affirmative vote of eight legislators and one vote against. Subsequently, motions were approved to publish the text and carry out institutional consultations with the Supreme Court of Justice (Corte Suprema de Justicia), the Attorney General's Office (Procuraduría General de la República), the Ministry of Finance (Ministerio de Hacienda), the Central Bank (Banco Central), among other institutions, and, additionally, the unions of the Judicial Branch (Poder Judicial). Subsequently, it was not until September 4, 2017, that the discussion of the bill began in its processing in the Plenary, opening, from that moment on, the possibility of presenting substantive motions (mociones de fondo).

The claimants' reproach focuses precisely on the fact that in the session of July 27, 2017, upon approving the motion for a substitute text, what was appropriate was to suspend the period to publish and carry out consultations and, only after that, to issue the corresponding report.

However, after reviewing the process in question, I consider that this did not imply an invalidating defect of the parliamentary procedure. It is not that it is an unimportant defect, as is held in the majority vote, but rather that it did not translate into an effective injury to the democratic principle, nor to the guarantees of participation and transparency that were intended to be fulfilled with the process approved in the specific case. In considering clause XV of the judgment, the proceeding that occurred regarding the approval of a fourth substitute text is explained, which was based on the technical criteria of the report from the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica. The approval of said substitute text, introduced in committee in the session of July 27, 2017, implied, according to the rules of the procedure approved in light of Art. 208 bis of the RAL, that the committee itself had to agree to the publication of the text in the Official Gazette La Gaceta, suspend consideration of the bill, and carry out the pertinent consultations. This was not strictly fulfilled in the specific case, since, as was verified, in the referred session the new substitute text was approved and the bill was reported on. The reason for the foregoing is based on the expiration of the period granted to the committee to render the corresponding report. Now then, the fact that the session had not been suspended on that occasion did not translate into an essential defect of the parliamentary procedure. It is possible to affirm the foregoing based on the verification that the bill and the respective reports were indeed sent for publication in the Official Gazette La Gaceta, the corresponding consultations were indeed carried out, and the consideration of the bill under analysis was de facto suspended. Note that the discussion on the merits did not begin until September 4, 2017, that is, two months later, a date from which the possibility opened to make the substantive motions that the legislators deemed pertinent and move forward with the parliamentary process.

Therefore, based on the factual framework set forth and the verification that the purposes conceived in the procedure were fulfilled, namely, to provide a waiting period to publicize the text, carry out the corresponding consultations, and provide a margin of analysis to include the motions that the deputies deemed appropriate, it could not be concluded that an invalidating defect of the parliamentary process has occurred here. It is necessary to point out that the suspension contemplated in the motion for the special procedure is not an end in itself, but rather it responded to a higher purpose, which was to guarantee the democratic principle itself and sufficient publicity of the parliamentary procedure, which, as was verified, was fulfilled.

Consequently, based on the foregoing reflections, I consider that in the case sub examine, an essential defect in the legislative procedure did not materialize.

III.— OWN REASONS REGARDING THE UNCONSTITUTIONALITY OF THE SPECIAL SOLIDARITY AND REDISTRIBUTIVE CONTRIBUTION INSOFAR AS IT EXCEEDS 50% OF THE GROSS AMOUNT OF THE PENSION OR RETIREMENT The undersigned magistrate, for her own reasons, declares partially with merit this aspect of the action of unconstitutionality, ordering the partial annulment of the provisions in Arts. 236 and 236 bis of the LOPJ; likewise, she warns that the unconstitutionality she declares affects the excesses of the special solidarity contribution with respect to that 5% and not the rest of the deductions applied by law to all pensioners and retirees of the Pension and Retirement Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial).

In the first place, it is necessary to point out that in judgment No. 2020-19274, which is invoked as the pivot of the decision (considering clause XLI of this judgment), I dissented and made the following considerations:

"OWN CONSIDERATIONS On this matter, the majority of this Chamber considered that —as part of the protection of the right to social security and the principles of reasonableness and proportionality— for the levies established in Laws Numbers 9383 and 9380 to be compatible with the Law of the Constitution (principles of reasonableness and proportionality), it is necessary that they be adjusted to what is established in Art. 71, paragraph 2 of ILO Convention No. 102, as well as the Inter-American Convention on Protecting the Human Rights of Older Persons (Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores), in that they must not exceed 50% of the gross amount corresponding to the retiree or pensioner.

I must state that I share several of the premises subscribed to by the majority, such as the unavoidable protection of the essential core of the fundamental rights invoked, that is, social security and the right to retirement. Also, the need to observe the international obligations acquired by virtue of the approval and ratification of international instruments on economic, social, and labor rights, as well as the duty to guarantee specific protection for older persons. However, I differ from the conclusions reached by that majority, for the reasons I will explain below.

In the first place, it cannot be ignored that what was stated by the Acting Minister of Finance (Ministro a.i. de Hacienda) is reasonable, in the sense that the purpose of the challenged regulations is for the State to have greater income to meet its expenses for the payment of benefits of the special pension regimes and thus contribute to their financial sustainability in the short, medium, and long term, as well as for the contributions on the pension and salary amounts to be made gradually and in solidarity, so that people receiving higher incomes contribute proportionally more and those receiving less do so in a smaller percentage. Furthermore, I accept what was reported by the PGR, when it affirms that the special solidarity contribution created by Law No. 9383 is not excessive or unreasonable, especially if one takes into account that it applies only after the economic benefit received by the pensioner exceeds the equivalent of 10 times the lowest base salary paid by the Public Administration. The amount of that salary, for the first semester of 2017, amounted to 260,250.00 colones, so the special solidarity contribution began to be paid from 2,602,500.00 colones. In other words, pensioners whose economic benefit does not exceed that amount are not subject to the special solidarity contribution that is requested to be annulled. Likewise, as the PGR highlighted, the special solidarity contribution questioned in this action is staggered or progressive, which allows affirming that the legislator respected the constitutional principle of proportionality.

On the other hand, I consider it pertinent to examine the challenged norms in detail. Note that the contribution established by Law No. 9380, called 'Contribution Percentage for Pensions and Active Employees for the Special Regimes of Pensioners and Active Employees for the Special Pension Regimes,' establishes that the contribution for active employees, pensions, and the State shall be 9% of the respective salary or pension amount received, and that the Executive Branch could increase the contribution percentage up to a maximum of 16% 'when technical studies so recommend.' So the norm itself establishes a guarantee of reasonableness and proportionality for the establishment of the respective contribution amounts. These will be established based on technical studies and, additionally, said contributions must be made proportionally, according to the salary or pension amounts in question, starting from the base of 9% for the lowest amounts, up to reaching the highest percentage, in accordance with the increase of the respective pension or salary. So that norm, prima facie, is not contrary to the Law of the Constitution; which does not imply, of course, that each administered party may challenge in the ordinary channels of legality the respective contribution amount, when he or she considers that the conditions of legitimacy of the correlative administrative act that imposed a specific contribution amount are not met.

Now then, this contribution amount is questioned together with that of the special solidarity contributions, regulated in Law No. 9383 of July 29, 2016, called 'Framework Law for Special Contribution of the Pension Regimes.' From the careful analysis of said norm, it is necessary to highlight several aspects:

The special, solidarity, and redistributive contribution foreseen in the norm is provided for pension regimes that do not have their own operational fund, therefore they fall on the National Budget (Presupuesto Nacional). The contribution established in this norm begins to be paid from an amount that exceeds ten times the lowest base salary paid by the Public Administration, according to the salary scale of the Public Administration issued by the General Directorate of Civil Service (Dirección General de Servicio Civil). This, as reported by the PGR, means that the amount will begin to be paid from a pension amount of 2,602,500.00 colones. In other words, pensions below this amount are not subject to the payment of the solidarity contribution. The amounts of these contributions are staggered, according to the excesses in pension that exceed the sum resulting from ten times the lowest base salary paid in the Public Administration (see Art. 3, subparagraphs a-f). In no case may the sum of the special contribution and the totality of the deductions applied to all pensioners and retirees covered by this law represent more than 55% of the totality of the gross pension amount that rightfully corresponds to the beneficiary. For cases in which this sum exceeds 55% of the totality of the gross pension amount, the special contribution shall be readjusted so that the sum equals 55% of the totality of the gross pension amount. It was foreseen that the resources obtained from the special contribution would enter the single state treasury (caja única del Estado); but the Executive Branch had to guarantee that said resources were allocated for the timely payment of the special pension regimes charged to the National Budget. The contribution is applied prospectively, so it does not affect amounts for pensions already received by their beneficiaries.

Based on the analysis of the challenged norms, the following can be concluded: This type of contribution does not affect money already entered into the beneficiaries' patrimony. The amount that remains unaffected or free from this solidarity contribution —2,602,500.00 colones— is at first glance reasonable to amply guarantee the right to a dignified and decent old age for salaried workers, once retired from active working life (Art. 17 of the Inter-American Convention on the Protection of the Human Rights of Older Persons, Law No. 9394). Furthermore, as required by the International Covenant on Economic, Social and Cultural Rights (ICESCR), solidarity contributions —as a way of understanding a limitation on the right to retirement— are compatible with the nature of this right and its purpose —to offer a dignified old age—; but it also aims 'to promote the general welfare in a democratic society' (Art. 4 ICESCR). Note that the reason for the contribution is to redirect it to the payment of pensions that have been paid with National Budget amounts, that is, to avoid what has been a burdensome charge for the State. So these specific contributions on pensions that do not have their own fund have the purpose of being reinvested to guarantee the payment of the pensions themselves and to pursue the general interest of the beneficiaries of these pensions. I cannot ignore here what was reported by the authorities of the MTSS and DNP: that the remunerations for pensions charged to the National Budget reach 10% of that item; that is, for every 100 colones paid to the pensioners of these regimes, 90 colones are covered by taxes on the rest of the Costa Ricans —or through debt— and only 10 colones are received from the contributions of active officials as well as from the retirees.

Therefore, in this specific pension regime, it is imperative to take corrective measures in order to watch over and protect the general interests, without diminishing the essential core of the right to retirement that —in the challenged norms— is respected, since the amount that remains untouched is absolutely reasonable, if what is intended is to face the retirement period with dignity and decorum.

In parallel, regarding the reductions applied by the special solidarity contribution, it is worth noting that the examined norms establish caps that must be respected on the pension (55% of the total gross amount of the pension). As has been said, the amounts reduced under this heading are staggered, depending on the actual amount received as a pension. However, establishing a maximum cap on the sum of the reductions does not mean that —automatically— all pensioners will have up to 55% of their pension reduced, because this will depend, correlatively, on the income they receive from pension payments. That is, the norm does establish ranges, depending on the amount of the pension received, and not in all cases will it necessarily be reduced up to 55% as the limit on the sum of reductions to be applied.

Personally, I have departed from the majority’s opinion by considering that, in the specific case of the particular pensions that are financed with the National Budget, the 55% cap is neither unreasonable nor disproportionate, taking into account all the elements examined and detailed supra.

Secondly, I do not consider that the provision of art. 71 of ILO Convention 102 applies. Note that said Convention contains specific norms relating to old-age benefits (arts. 25-30), which state that the benefit or periodic payment shall be calculated in accordance with the provisions of arts. 65, 66, and 67, which establish the minimum payment amounts for these benefits. Additionally, art. 71 cannot be seen in isolation from its general context, specifically, the first paragraph, which states the following:

“1. The cost of the benefits granted in application of this Convention and the administrative costs of such benefits shall be borne collectively by way of insurance contributions or taxation, or both, in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the classes of persons protected” (highlighted text does not correspond to the original).

That norm illustrates and contextualizes that these provisions are envisaged as minimums so as not to affect persons with more modest economic resources, a reason that leads me to exclude their application to these pensions that exceed 2,602,500.00 colones. In these cases, without much effort, it can be observed that the replacement rate and the amount received are far superior to the minimum amount of old-age benefits established in the ILO Convention. Therefore, I consider that these norms invoked by the majority are not applicable to the case under examination.

Note that the very name of the Convention, which dates back to 1952, indicates that it concerns “minimum standards.” For that reason, the State of Costa Rica would not be breaching any international obligation by legislatively authorizing the application of these solidarity contributions. Likewise, the application of international instruments must be carried out with the utmost rigor; therefore, I do not consider legitimate the forced assimilation made by the majority of the Court when stating that where the text says “wage earner” it should also be understood to include pensioners.

Merely as a useful element in the hermeneutical sphere, it is pertinent to mention that the ILO itself issued Recommendation 202, “Concerning National Floors of Social Protection, 2012,” with the purpose of providing “guidance to Members to establish social protection floors adapted to each country’s circumstances and levels of development, as part of comprehensive social security systems.” In this instrument, within the framework of strategies for the extension of social security, the aim is to implement social protection floors that progressively ensure higher levels of social security for the greatest number of people possible, according to the guidance of the ILO norms relating to this matter. Thus, it is observed that the purpose of these instruments is to ensure minimums of social security. Said Recommendation recognizes the possibility of taxing pensions for the sake of the sustainability of the pension regimes themselves. Thus, for example, Art. 1, paragraph 3, recognizes a series of principles. In my judgment, those relevant to examining the question are the following:

“Recognizing that it is the general and primary responsibility of the State to give effect to this Recommendation, Members should apply the following principles: (…) h) solidarity in financing, associated with the pursuit of an optimal balance between the responsibilities and interests among those who finance and benefit from social security schemes; j) sound, responsible and transparent financial management and administration; k) financial, fiscal and economic sustainability, taking due account of social justice and equity; (…)” (highlighted text does not correspond to the original).

Likewise, when establishing national social protection floors, the Recommendation suggests the following:

“11. 1) Members should consider using a variety of methods to mobilize the necessary resources to ensure the financial, fiscal and economic sustainability of national social protection floors, taking into account the contributory capacity of different population groups. Such methods, applied individually or in combination, may include giving effect to tax and contribution obligations, reprioritizing expenditure, or creating a broader and sufficiently progressive revenue base. 2) For the purpose of applying these methods, Members should consider the need to adopt measures to prevent fraud, tax evasion and non-payment of contributions” (highlighted text does not correspond to the original).

Based on the foregoing, I consider that the challenged norms seek to safeguard minimums of social security for the most vulnerable and lowest-income sectors. Not so for pensions that amply exceed these social security floors. Even, as seen, the ILO’s own recommendations point towards considering mechanisms precisely to ensure the financial, fiscal, and economic sustainability of national social protection floors, taking precisely into account the contributory capacity of different population groups. Therefore, the application of a norm that is designed to guarantee minimums of social security cannot be assimilated to retired persons who receive pension amounts that amply exceed these social security standards.

Moreover, as has been examined, these measures, besides guaranteeing minimums of social security by leaving a high amount of the pension untouched, also pursue the very sustainability of the national fiscal regime, since, as has already been said, these pensions do not have their own financing fund but are paid mostly with amounts derived from the National Budget. This appears to be a practical application of the very principle recommended by the ILO of “solidarity in financing, associated with the pursuit of an optimal balance between the responsibilities and interests among those who finance and benefit from social security schemes.” For all the foregoing, I consider that in the specific case, the norm invoked by the majority of this Chamber is not applicable, insofar as it is intended to safeguard minimums of social security for low salary amounts and seeks to prevent an excessive tax burden from falling on these persons, stripping them of a reasonable and appropriate amount to lead a dignified life. The logic of said regulation does not extrapolate to the specific case, in which, rather, the principles of reasonableness and proportionality must be observed and safeguarded. These principles, in my view, are fully respected insofar as they ensure an amount that, at first glance, appears sufficient for a dignified old age, responds to a need for solidarity and equity due to the deficiencies in the sustainability of this pension regime that relies on the National Budget, and establishes staggered contribution percentages matched to the pension amounts received. Furthermore, as explained in the majority vote, it is a legislative measure that finds reasonable financial and technical support.

Consequently, I consider that this aspect of the unconstitutionality action must be dismissed for the reasons invoked.” In the specific case, I am not contradicting myself, since as is evident from a careful reading of my arguments, the assessment made was confined to the specific pension regime examined on that occasion. As I highlighted in that vote, the Minister of Finance reported that the special pensions charged to the “Presupuesto General de Gastos de la Administración Pública” —like those— do not possess their own “fund” and do not earn capitalization; this is because the income from state, worker, and employer contributions is much lower than the outlays derived from the payment of retirement benefits. Likewise, they are paid from taxes and/or through monies obtained from loans, which generate interest payments for the State, with implications for indebtedness. For every 100 colones in the regime, 90 colones must be financed with taxes or debt, since there are 60,000 pensioners and only 20,000 contributors. Likewise, the authorities of the Ministerio de Trabajo y Seguridad Social (MTSS), as well as the Dirección Nacional de Pensiones (DNP), explained that, in that specific system, the special solidarity contribution system aimed to eliminate privileges in favor of a group of pensioners who currently pay less than 10% of the amount they receive, and the remaining 90% of their pension is paid by the rest of Costa Ricans through taxes or public indebtedness. Therefore, I must clarify that the arguments from the unconstitutionality action cited above, in which I dismissed the unconstitutionality of the 55%, do not apply to the case now under examination, due to the diverse nature of the regime and the specific technical studies that motivated the legislation under analysis.

It must be clear that I share the premise that the right to retirement is not an absolute right, but rather admits limitations by virtue of a superior interest that encompasses the generality of the system’s beneficiaries, but such limitations must be reasonable and find support that provides them with adequate grounding. In the case under analysis, due to the very characteristics of the Régimen de Jubilaciones y Pensiones del Poder Judicial and the specific social burdens borne by retired persons affiliated with this regime, as well as the specific technical studies provided, I consider that a cap of 55% on deductions with respect to the gross retirement amount is indeed unreasonable and disproportionate. I do agree, however, with the reasons provided by the majority for considering that the figure of the special, solidarity, and redistributive contribution is not in itself unconstitutional for being a parafiscal contribution with a clear purpose of economic and social interest (recitals XLV, XLVI, XLVII, L, LI, LIV, and LVIII), but it does become confiscatory insofar as it exceeds 50% of the burdens a person must bear regarding the effective enjoyment of their pension or retirement.

In the sub examine, according to what was reported by the Vice President of the Corte Suprema de Justicia, pensioners of the Régimen de Jubilaciones y Pensiones del Poder Judicial have several burdens that are not contemplated for other funds. Thus, we have that pensioners of the Poder Judicial Fund, unlike other regimes, do continue contributing for life to the Fund itself. In this regard, and as relevant, arts. 235 and 236 of the LOPJ regulate the following:

“Art. 235- With the contributions of judicial employees, the State, and the Poder Judicial, the Board shall form a Fund, which shall increase with the returns produced by its investments.

Art. 236- The Fondo de Jubilaciones y Pensiones del Poder Judicial shall have the following income:

• 1)A worker contribution of thirteen percent (13%) of the salaries earned by judicial employees, as well as of the retirements and pensions paid by the Fund, a percentage that shall be withheld in the corresponding periodic payment”.

In this regard, it must be clarified that the support of pensioners for the sustainability of the Poder Judicial’s own fund is not something novel included in the law challenged here, because the following was already contemplated previously:

“Art. 236.- To meet the payment of retirements and pensions, a Fund is created that shall be formed with the following income:

1.- Nine percent (9%) of all salaries of active employees, as well as of the retirements and pensions paid by the Fund. This percentage shall be withheld monthly. For reasons of necessity of the Fund and based on actuarial studies, the Court may increase this percentage up to fifteen percent (15%)”.

Consequently, it is observed that historically, pensioners of the Fondo de Pensiones del Poder Judicial continue contributing to and enlarging the Regime itself.

What is indeed novel is that, in addition to the upkeep of the Fund, the regulation under analysis introduced a reduction for the maintenance of the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial. In this regard, art. 239 orders that the Board shall be financed by a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions paid by the Fund. Additionally, pensioners and retirees must continue paying their contribution to the Sistema de Enfermedad of the Caja Costarricense de Seguro Social and, in applicable cases, pay the income tax and the special, solidarity, and redistributive contribution for pensioners and retirees of the Fund.

In addition to the foregoing, it is necessary to bring up the technical studies that served as input for the establishment of a percentage of the special, solidarity, and redistributive contribution, specifically the “Producto número 6, Informe Final: Recopilación e informe final: conclusiones y recomendaciones. Versión final” regarding the project “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” from July 2017 (visible on the page https://fjp.poder-judicial.go.cr/index.php/2013-08-08-15-26-57/estudios-actuariales-fondo-de-jubilaciones/category/352-productos and evidence for better resolution requested by this Court). In said technical input, several scenarios of possible regulatory frameworks were evaluated, the purpose of which was always to provide stability and solvency to the Fondo de Pensiones del Poder Judicial. Those scenarios included the possibility of regulating precisely the “contribución solidaria adicional” —according to the terminology of that study— at 50% of the maximum ceiling for retirement or pension. Said report, explicitly evaluating a possible problem of confiscatory nature, stated that its calculations were based on a scenario in which the total deductions must not exceed 50% of the gross benefit of the retiree or pensioner. Textually, said report states the following:

“in any case, to prevent the issue of confiscatory nature from becoming an obstacle to the necessary reform of this regime, it can be established that the special solidarity contribution shall be applied, together with the other normative deductions (regular contribution on benefits, income tax, and CCSS health fee), without the total deductions exceeding the equivalent of 50% of the gross benefit of the retiree or pensioner” (Highlighted text does not correspond to the original. See folio 72 of the report).

From the above extract, it is possible to conclude that the report itself doubted the proportionality of the measure but opted to establish the calculation at a maximum of 50%, an amount that served to illustrate the scenarios in question and build the regulatory proposal that was finally approved.

Consequently, if that was the value suggested in the technical study and there are no elements illustrating the reasonableness for why said percentage was raised by an additional 5%, I consider that said excess percentage must be declared unconstitutional for being unreasonable (lacking support to legitimize it).

It is also necessary to highlight that the resources obtained from the special, solidarity, and redistributive contribution have as their purpose their re-entry into the Fondo de Jubilaciones itself, so it appears unreasonable to establish a cap of up to 55% on the total sum of reductions to apply without technical support. It must be taken into consideration that the persons affiliated with this Fondo de Pensiones y Jubilaciones already have a fixed contribution of 13% of their pension or retirement to the fund itself, which does not occur, as was examined, with other pension regimes. In my opinion, the situation of this pension regime, in which historically each retired or pensioned person contributes to the fund’s sustainability, cannot be equated with one that is mostly financed with national budget funds and regarding which I concluded that the 55% cap is not unconstitutional.

Finally, I consider that by declaring the unconstitutionality of that excess 5%, which departs from the technical study, the other items examined here should not be affected, namely, the 13% contribution to the fund, the financing and administrative expense amounts of the Junta Administrativa del Fondo, the health insurance, or the income tax, but the percentage pertaining to the special, solidarity, and redistributive contribution of pensioners and retirees regulated in art. 236 bis of the LOPJ should be reduced.

Consequently, from my perspective, and in this I do agree with the majority of this Court, the sum of the deductions to apply to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial may not exceed 50% of the total gross amount of the pension to which the beneficiary is entitled (arts. 236 and 236 bis of the LOPJ).

IV.- DIFFERENT REASONS REGARDING THE ALLEGATIONS RELATING TO THE OMISSION TO TAKE INTO ACCOUNT THE DIFFERENTIATION IN RETIREMENT AGE BETWEEN WOMEN AND MEN To examine this grievance of the claimants, in the sense that it is discriminatory not to have contemplated a gender criterion for the recognition of ordinary retirements in the Régimen de Jubilaciones y Pensiones del Poder Judicial, it is first necessary to examine the context and the motivation that drove the legislators to adopt this regulatory framework.

As evidenced by the vote of the majority of this Chamber, since the years 2012 and 2013, the results of actuarial studies that revealed the serious deficit of the Fondo de Pensiones del Poder Judicial were made known. This prompted internal mobilization with proposals to reverse said problem. Likewise, the bill, from its origins, demonstrated the interest in carrying out a comprehensive reform of this specific regime with the purpose of eliminating abusive provisions, rationalizing spending, and providing stability or equilibrium. All this based on the principles of solidarity, equality, redistributive justice, and efficiency, which are pillars within the Estado Social de Derecho. Precisely, the objective of the bill was to correct situations that were detrimental to the sustainability of the pension regimes, considering that there was an unavoidable duty to attack all those inconsistencies that were causing damage to the financial stability of the regime. The goal was to present a solid and responsible proposal in the face of the extremely dramatic situation that was occurring, making the measures necessary to guarantee the pension expectation of the persons who were and are contributing to said regime. Note that in the processing of the bill, the explicit intention to overcome a severe actuarial deficit is observed, which, in the absence of concrete measures, worsened the situation and made the intervention of the Poder Legislativo urgent (see the statements of the Executive Director of the Poder Judicial in the legislative file; recital VII of the majority judgment). In this regard, the urgent need to make structural adjustments to the Fondo de Pensiones del Poder Judicial due to its actuarial unviability and the insolvency towards which it was heading was verified. In the statement of motives of the bill processed in legislative file No. 19,922, the following was announced:

“The proponents consider it of utmost importance to include the Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial within this proposal and to present a solid and responsible proposal in the face of the situation it is experiencing.

As legislators, our concern lies fundamentally in the need to review and, if applicable, limit the benefits received by the members affiliated with said regime, which is characterized by not having a cap for the pensions granted, by allowing judicial employees to take their pension at sixty years of age, enjoying a retirement equal to the average salary of the last twenty-four best ordinary monthly salaries, among other aspects that put the equilibrium of the regime at risk.

Many judicial employees retire at early ages, and in some cases enjoy “luxury pensions,” which produce a latent danger and a risk to the sustainability of the aforementioned Fund, making manifest the great differences that exist between the pension regimes that exist in our country; furthermore, the disproportion of different judicial employee pensions has been made evident, which obliges us to analyze this situation carefully and seek a serious and responsible solution.

During the year 2012, results of actuarial studies were presented that generated a real alert about the need to apply adjustments to this legislation, with the purpose of reversing actuarial imbalances that have become evident and that have created the concern to review this regime and make the necessary reforms so that it can adapt to the social and economic reality of our country, and endow it with the sustainability it needs to succeed and nourish it with funds for its proper functioning.” (Highlighted text does not correspond to the original).

Consequently, it is verified that it was urgent to adopt decisions to guarantee the sustainability of the regime. Thus, within the framework of that context, and because it concerns a specific pension regime, all beneficiaries, both men and women, had to bear and assume an additional burden for the benefit of the Fund itself and of the community that depends on it. Therefore, the need to postpone the retirement age was agreed upon. In general, all contributing persons, both men and women, saw a personal sacrifice in the measures agreed upon in order to achieve their own pension or retirement (years of service, age, retirement amounts, special contributions, etc.), but that personal sacrifice was designed with a view to guaranteeing the sustainability of the fund for the benefit not only of their subjective right (to continue enjoying the pension or retirement), but to safeguard the fundamental rights of the entire community affiliated with this specific regime, so that it would be robust and solvent.

Now, the question is whether it is constitutionally required that the legislator provide for a specific differentiation in this matter. My answer is no. Neither the Constitución Política nor the international instruments subscribed to by our country and invoked by the claimants require this specific solution to guarantee the fundamental right to retirement or to social security in favor of women.

Indeed, from a comparison between the current regulation and the previous one, it is possible to infer that a differentiated age between men and women for obtaining an ordinary pension was not foreseen either. The current norm orders the following:

“Article 224- Judicial employees with twenty or more years of service in the Poder Judicial may take an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned during their working life, updated according to the consumer price index (CPI), defined by the Instituto Nacional de Estadística y Censos (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years.” (Thus amended by Article 1 of Law No. 9544 of April 24, 2018. Highlighted text does not correspond to the original.)

While the corresponding predecessor article regulated it in the following sense:

“Article 224.- Judicial employees may take a retirement equal to the average salary of the last twenty-four best ordinary monthly salaries, earned in the service of the Poder Judicial, provided they have reached sixty-two years of age and the number of years worked for the Administración Pública is at least thirty. In no case may the amount of the retirement exceed the equivalent of the income of a deputy, understanding income as per diem allowances and representation expenses.” (Highlighted text does not correspond to the original.)

From a careful review of that provision, it is clear that it did not contemplate the distinction that the claimants now miss. In fact, the eventual declaration of unconstitutionality would in no way remedy the situation they demand and would not benefit the condition of women, because the previously valid norm, as can be seen, did not contemplate gender differences regarding the retirement age either, but equally required the age of 62 years.

Now, this does not mean that the legislator was not in a position to conduct a specific analysis of the sex-based situation. Moreover, it is indeed on record that this variable was evaluated in the corresponding required technical studies; however, when introducing the distinctions demanded by the claimants, the result was the fund’s insolvency. In the aforementioned study “Producto número 6, Informe Final: Recopilación e informe final: conclusiones y recomendaciones. Versión final” relating to the project “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” from July 2017, there were several analysis scenarios (Current Regulatory Framework, Substitute Text, Corte Plena Proposal, and IICE_1 Framework) in which the age difference between men and women for obtaining an ordinary retirement was contemplated, setting the age for men at 65 years and for women at 62 years. However, none of those proposals guaranteed the actuarial solvency of the fund, and rather, in the IICE_3 and IICE_4 Framework scenarios (in which no distinction was made between men and women by age or years contributed), it was concluded that the Fund would have actuarial solvency and could guarantee its promises in the long term using only the resources allocated by the framework in question (that is, it would be self-sufficient) and would only become insolvent in a “pessimistic” economic-financial scenario. Those inputs were precisely the ones that ultimately served for the proposal approved in the Comisión Especial in charge of studying and ruling on the bill. Indeed, during the parliamentary proceedings, it was explained that the text ruled upon was based on the actuarial study requested by the Corte Suprema de Justicia from the IICE and is aligned with the recommendations set out in the final report rendered by that instance. The justification of the ruling incorporated part of the presentation by the Institute’s representatives during the hearing scheduled in session number 20 of July 19, 2017, which, as relevant, noted the following:

“If we look here, we can see that in the current framework, there was, as had been initially discussed with you on another occasion, a deficit of five point thirty-six million million colones, and an insolvency indicator that basically far exceeded the five percent established generally by actuaries as the minimum required level to indicate that solvency exists. A fund, in this case, is considered solvent if it has a deficit of less than five percent, in terms of the deficit-to-actuarial liability ratio. When that deficit exceeds that level, the fund is considered insolvent.

Obviously when there is no deficit it is definitively solvent, but in these particular cases, the current framework, the substitute text, and the one from the Corte Plena all indicate that there is a deficit, and none of these three schemes passes or meets the solvency tests, as we can observe. The substitute text and Corte Plena schemes generate some amendments that are definitively insufficient to resolve the problems generated by the framework currently in force. (…)

Here we have a summary of the differences between the various frameworks that the institute developed. Basically, four frameworks are presented there. Of those four frameworks, only the last two appearing in the last two columns on the right, the IICE 3 and IICE 4 frameworks, are solvent, as we shall see further on. (…)

Obviously, in order to achieve solvency, it is necessary to reduce the promises, basically reduce the percentage with which each person retires, and increase the contributions, because otherwise it is impossible to achieve a process that generates solvency. (…)

We are going to present the results of the Institute's frameworks. We see that the IICE 3 and IICE 4 frameworks meet the solvency standards, generating a deficit-to-actuarial-liability ratio of three point ninety-eight percent, in the case of the IICE 3 framework, and one point fifty-five percent in the IICE 4 framework. This is perhaps the most important thing. They are, then, alternatives that are relatively self-sufficient and that generate solvency scenarios. Obviously, they require a sacrifice on the part of the members, but without that sacrifice it would be impossible to achieve solvency results. We have some slightly more specific results for the IICE 3 and IICE 4 frameworks, and here we present the solvency result excluding income from judicial deposits or abandoned processes. We see that even in that case, this framework maintains its solvency standard, and the IICE 4 framework does as well. In that case, it meets the solvency conditions for the base economic scenario. For the optimistic economic scenario, it also maintains the solvency conditions both including and excluding those additional revenues that had been mentioned at some point. Some final considerations. The frameworks under discussion, which were evaluated—both the current framework, the substitute text, and the Corte Plena framework—are insolvent. The adjustments of the frameworks, the substitute text and the Corte Plena text, do not resolve the insolvency of the current framework. The IICE 3 and IICE 4 frameworks are solvent with or without the additional revenues resulting from abandoned processes. The IICE 3 and IICE 4 frameworks propose adjustments in age and years of service required, and calculations of the reference salary. A cap is established for retirement pensions. There are adjustments in the contribution percentage of the participants, and furthermore, a solidarity contribution is established on the excess over the cap by retirees and pensioners. The IICE 3 and IICE 4 frameworks do not generate additional burdens for the government.

The current framework is insolvent at this moment. It is necessary to make adjustments soon in order to avoid a deterioration of the actuarial situation that is already in force. That is, even more so, from before, because these are data as of December 31, 2015.” (Highlighting does not correspond to the original).

Subsequently, the legislators justified the reason why they opted mostly for the proposal made by the IICE, explaining, for these purposes, the following:

“The approved text is technically supported by the IICE_4 Normative Framework, which is one of the models recommended by the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) in its actuarial study, and was chosen by the Dictaminating Committee for the following reasons:

• a)It guarantees that the Fund can indeed guarantee its promises in the long term with the resources assigned by the Framework in question; furthermore, the actuarial deficit is estimated at 0.15 (million million) colones, a figure representing approximately 1.69% of the total actuarial liability for future benefits to current and future participants (active members and retirees/pensioners), b) It guarantees that the Fund would successfully pass a rigorous actuarial solvency test, and consequently, it can be affirmed that the Fund would be in a state of “approximate actuarial balance,” c) It does guarantee the payment of pension and retirement benefits in the long term using only the resources assigned by the Framework in question, that is, the Pension and Retirement Fund of the Poder Judicial would be self-sufficient.
• d)The IICE_4 Normative Framework does guarantee the lowest actuarial deficit of all the proposed models, by virtue of the fact that, compared to the rest of the models proposed by the Institute for Research in Economic Sciences of the University of Costa Rica, under the analysis of the base/intermediate and optimistic scenarios, it shows the lowest actuarial deficit figures (-0.14 million million), and even, in the optimistic scenario, instead of a deficit it shows a surplus of (0.66 million million), without any insolvency.
• e)The IICE_4 Normative Framework does establish the most favorable retirement amount percentage of all the models studied, setting it at 85% of the average of 240 ordinary monthly salaries, which evidently is more favorable for the servants of the Poder Judicial, in contrast to the 72.5% retirement amount percentage recommended by the IICE_3 Normative Framework. The foregoing is consistent with what was indicated by the Institute for Research in Economic Sciences in Product 6: “Final Report, conclusions and recommendations” of the actuarial study, textually stated in section 6.4 Final Assessment and Statement on the actuarial solvency of the Normative Frameworks presented, as follows: “Under the premise that the Fund must guarantee by itself the benefits it promises (without creating additional burdens for the Government of Costa Rica or the rest of Costa Rican workers), the recommendation of this IICE report to the Poder Judicial consists of choosing between one of these two normative frameworks (IICE_3 Framework or IICE_4 Framework). These normative frameworks are only insolvent in a ‘Pessimistic’ financial economic scenario. Now, it is also very important to keep in mind that the Institute for Research in Economic Sciences of the UCR expressly points out in Product No. 5 of the actuarial study, in relation to the IICE_4 Normative Framework, what the recommended adjustments to the benefit profile of the Pension and Retirement Regime of the Poder Judicial imply, and that under this model: “the minimum requirements to qualify for old-age retirement are being increased even further; and the promised benefit amounts are being reduced”2 The IICE_4 Normative Framework establishes a series of variables that must be complied with in strict adherence to the designed proposal, in order to guarantee the necessary solvency for the Pension and Retirement Fund of the Poder Judicial in the long term. The Dictaminating Committee, consciously and responsibly, incorporated into the approved text the variables established by the IICE_4 Normative Framework, with the purpose of not putting at risk the present or future sustainability of the Pension and Retirement Regime of the Poder Judicial and to base itself strictly on the technical recommendation issued by the Institute for Research in Economic Sciences of the University of Costa Rica.” (Highlighting does not correspond to the original).

Consequently, based on the technical inputs that provide reasonableness to the regulation under analysis, the legislator could not have been required to come and approve an additional benefit in favor of women, but to the detriment of the original purpose of the bill, namely, to provide solidity to the Pension and Retirement Fund of the Poder Judicial. Indeed, it seems somewhat contradictory to ask the legislator to carry out a technical assessment that includes the difference by sex, when the one already carried out did contemplate this variable and indicated that this difference caused the Fund's insolvency.

In this regard, the Procuraduría General de la República (PGR), when responding to the hearing granted in this constitutional challenge action (acción de inconstitucionalidad), affirmed that this type of differentiation is only justified when technical studies suggest the need for differentiated treatment, which was set forth by the Sala in advisory opinion No. 2018-5758. In accordance with the foregoing, and having verified that the technical study ruled out this possibility, I adhere to the thesis that the situation analyzed is not discriminatory or harmful to the fundamental rights of women.

Furthermore, no technical elements were provided or accredited that would detract from the inputs that served as support for the approval of this specific regulation, and, as already stated supra, by virtue of the previous normative scenario, what would be attempted with this constitutional challenge action is to legislate in a specific manner that, in addition to lacking technical support, would go against the original purpose of the bill, which is to give sustainability to the Pension and Retirement Regime of the Poder Judicial.

Everything examined up to now does not mean that the decision adopted cannot be subsequently changed by the legislator himself by virtue of a new scenario—better actuarial and solvency conditions pointing towards a situation of financial strength of the Pension Fund. The foregoing, with the purpose of granting differentiated treatment based on sex and as a measure of positive discrimination in favor of women, which, should the case arise, could also be compatible with Constitutional Law, as long as the unequal treatment is not to the detriment of the social and economic conditions of the women themselves.

However, in the scenario of approval of the regulation under analysis, no other combination of variables was envisioned that would empower the legislator to infer a different proposal. It should be remembered, as noted supra, that in a context of the fund's precariousness, it involved the adoption of a combination of measures that entailed a sacrifice for the persons affiliated with this regime, such that modifying any of these components could upset the harmony of the adopted model, to the detriment not only of women, but of all beneficiaries of the system, present and future.

V. SEPARATE NOTE A.- On the integration of the Sala

Regarding the integration of the Court to resolve these constitutional challenge actions, I must warn that I timely filed my motions for recusal (inhibitoria), first as a substitute magistrate and then as a full magistrate.

The first motions were accepted, but were subsequently rendered ineffective by the Presidency of the Sala, with the purpose of integrating me into the Court so that I could hear on the merits the files accumulated to constitutional challenge action No. 18-7819-007-CO. Precisely for this reason, I filed the second ones, but they were rejected.

By virtue of such a situation, I raised my challenges before the Presidency and the Plenary of the Constitutional Chamber (Sala Constitucional); however, they were dismissed, and, therefore, I have had to concur in the resolution of this matter. Nevertheless, I consider it appropriate to place on record the considerations made by myself in judgment No. 2020-015544, in which precisely the Plenary refused to hear on the merits my challenges regarding the manner in which the Chamber was integrated for the resolution of these constitutional challenge actions. In the referenced vote, I recorded the following conclusions:

“The correct interpretation of Art. 29 LJC must be that, when the same ground for recusal covers both the full and substitute Magistrates, the case is authorized to be heard by the full Magistrates. But, if there are additional or different grounds, a specific and concrete analysis of the ground raised must be carried out, under penalty of distorting the clear wording of the aforementioned article.

The literal wording of the norm is a limit to the interpretative capacity of the judge (see resolutions drafted by Magistrate Rueda Leal, 2016-16967, 2018-7208, and 2018-14090). Therefore, the constitutional judge, when making interpretations, also when it comes to carrying out the due conformation of the body, is limited by the normative framework that regulates this jurisdiction, under penalty of contravening the democratic system.

I consider that the literal wording of Art. 29 LOPJ is being distorted by a practice and interpretation of the Presidency of the Chamber, since, in the face of any motions for recusal—without a particular analysis—it applies said numeral indistinctly, ignoring the need to carry out a concrete examination of each situation, which ensures an appropriate integration of the Court itself.

In strict application of the principle of perpetuity of jurisdiction, the Presidency of the Constitutional Chamber could not unilaterally disregard the provisions of Art. 16 CPC, which orders, also for the constitutional jurisdiction, the invariability of the conformation of the Court to hear a specific case.

Since the Court was already formed to hear the constitutional challenge action, it was not possible to go back, much less to disassemble the body in order to enable me, since, much earlier, I was already separated and disqualified from hearing this process; and, furthermore, the reasons for which I had been separated still subsisted.

Two clarifications are necessary. First, what has been raised differs substantially from a recusal motion (recusación) by virtue of eventual criminal or disciplinary complaints. The assumptions of direct interest (grounds previously set forth by a Magistrate in a process, which compromise their impartiality for the resolution of a matter) cannot be assimilated to the recusals filed against a specific Magistrate with the evident purpose of separating them from hearing a particular process.

Second, substitutions cannot be assimilated to a disassembly of the body: the principle of perpetuity of jurisdiction is not broken when some substitute Magistrate fortuitously hears a specific case because they are designated to integrate the court for a specific period, and the cause of the substitution is the leave, disability, or vacation of a full Magistrate. In such cases, evidently, it is not a matter of the disassembly of the body or disrespect for the principle of perpetuity of jurisdiction, but rather there is a mere temporary substitution for the mentioned reasons.

Ultimately, based on the foregoing, I consider that this motion should have been admitted and merited being resolved as a nullity as a matter of law (nulidad de pleno derecho), given that in the challenged resolutions there are nullities in the appreciation of the normative framework that governs the Constitutional Jurisdiction.

After the deliberation in which I participated, I continue to consider that the resolution of the Presidency of the Constitutional Chamber issued in this file, at 09:00 hrs. on April 15, 2020, by which it disassembled the body and declared me enabled to hear the process, is null. Indeed, respect for hermeneutic canons and normative rigor point to that resolution being null as a matter of law for violating Arts. 25, 29.2, 31 of the LOPJ; 4 and 14 of the LJC; and the principle of perpetuity of jurisdiction, expressly regulated in Art. 16 CPC.

I must finally state that it is evident that all my actions have been guided by the principle of good faith.” Considerations that I must repeat in this resolution on the merits, to place on record my disagreement regarding the manner in which this Court was integrated to resolve the constitutional challenge actions under examination.

B.- On the alleged connection (conexidad) The plaintiffs questioned an alleged defect in the principle of connection (principio de conexidad) in the processing of the bill. They challenge that originally it was a general project that sought to reform several pension regimes, but subsequently, the parliamentary process focused exclusively on the reform of the Pension and Retirement Regime of the Poder Judicial.

On this matter, it is observed that in the majority judgment and in my dissenting vote (voto salvado), an extensive reference is made to the statement of reasons of the bill. From the spirit of the parliamentary initiative, the legislator's motivation to apply adjustments to the specific Pension and Retirement Regime of the Poder Judicial is palpable, with the purpose of presenting a “solid and responsible proposal in light of the situation it is going through.” Indeed, there was much transparency in this regard, in the sense that it was necessary to review and, if necessary, limit the benefits that members were receiving, enumerating situations that, from the perspective of the bill's promoters, were problematic, such as: the absence of a cap on pensions, the possibility of retiring at sixty years of age, and the retirement amounts. These conditions, in the proponents' judgment, implied “a latent danger and a risk to the sustainability of the fund in question.” Indeed, it can also be observed that statements as forceful as the following were made:

“the disproportion of different pensions of judicial servants has been brought to light, which obliges us to analyze this situation carefully and seek a serious and responsible solution” as well as “to make the necessary reforms so that it can adapt to the social and economic reality of our country and endow it with the sustainability it needs to succeed and nourish it with funds for its adequate functioning.” Now, as evidenced in the majority judgment, the initial project was aimed at reforming all pension regimes; however, later, the Legislative Power focused on processing the reform of the Pension and Retirement Regime of the Poder Judicial separately and specifically (see Considering VII). While I consider that the legal technique employed is not the most suitable, I understand that the principle of connection has not been harmed in the processing of the bill under analysis, since, as was evidenced, the original purpose did include the reform of the specific regime of the Poder Judicial. It is true that part of the bill was cut off by excluding other regimes, and it could be considered that there was eventually some harm to the principle of connection, but it was not substantial. Indeed, the truth is that, as was verified, the purpose of the bill did clearly include the intention to regulate the Pension and Retirement Regime of the Poder Judicial, so if during the parliamentary process it was decided to focus in a specialized and specific manner on this concrete regime, what occurred does not harm this specific bill.

C.- On the 18-month period provided in transitional provision VI I agree with the considerations made by the majority of this Chamber regarding the constitutionality of the eighteen-month period provided in transitional provision VI of Law No. 9544 as a term to meet requirements and retire or receive a pension under the previous regulatory framework (see considering LXIX). This period was set in accordance with the Constitutional Chamber's own jurisprudence, which has deemed it reasonable for defining acquired rights in pension matters (see, for example, votes numbers 846-1992, 06491-1998, 3551-2014, 12606-2014, 1214-2015, and 2655-2015, among others).

However, the foregoing does not mean that eventually a longer period might also be compatible with the Political Constitution. In that sense, from my perspective, it should not be understood that this eighteen-month period is necessarily the constitutionally mandated one for these regulatory situations, since it could eventually be longer. It should be remembered that the Chamber has indicated that there is no strict right to the constitutionalization of time periods, which is precisely what I affirm in the sub lite case.

Now, what happens is that in the specific case, this period is considered reasonable, not only because it is supported by this Chamber's own jurisprudence, but also by the technical studies that served as input for the construction of the final legislative decision. It should be noted that this period was indeed one of the technical requirements to design and implement the corresponding modifications in order to seek to provide financial support to the Pension and Retirement Regime of the Poder Judicial and to expedite the implementation of the measures. Consequently, in this specific normative proposal, two criteria were combined: on the one hand, the jurisprudence of this Chamber on the matter, and on the other, the technical foundation and the motivation around which the approval of this regulation revolved, namely, the actuarial solvency of the fund. In this regard, the IICE's technical study made the following assessments regarding a possible extension of the transitional period to two years:

“An increase in the ‘transitional period’ postpones the adjustments and therefore negatively affects the Fund's income. To adequately assess the effect of an increase in this transitional period, a complete actuarial analysis would be necessary.

On the other hand, a decision in this direction may induce administrators and political agents to undertake efforts to include successively larger groups, so that in the end a two-year ‘transitional period’ would end up becoming a transitional period of five, six, or even more years.

Finally, the extension of the transitional period postpones part of the adjustments, so the profitability and solvency analysis of the Fund may create the impression that the adjustments that were actually made did not take effect.” (Highlighting does not correspond to the original).

As can be easily concluded, the technical study advised against extending the transitional period to two years. In accordance with the foregoing, it is necessary to reiterate that the normative design is anchored in a series of variables that sought to give solidity to the Pension and Retirement Fund of the Poder Judicial. Therefore, modifying any of these elements without the corresponding technical support could cause all the other elements to become misaligned, to the detriment of the Fund itself and all its beneficiaries.

D.- On the normative framework In previous notes (see judgments 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316), I have made some considerations regarding the exercise of constitutionality review and international instruments as a standard of assessment. In this regard, in what is relevant and in summary, I indicated the following:

“The function of controlling the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text but only in Art. 73.d) LJC, but it is not contrary to it, since it allows guaranteeing the effectiveness of Art. 7 CP. That function of controlling said conformity is a function distinct from that exercised by the Chamber by reason of Art. 10 CP—constitutionality review—and from that established in Art. 48 CP—jurisdictionally guaranteeing constitutional rights and those of a fundamental nature established in international instruments on human rights.

When this Chamber exercises its function of constitutionality review, it is not appropriate for it to draw on treaties and use them as if they formed part of the constitutionality standard. Such instruments, and only if duly ratified, can stand as a standard of conformity of legal and infra-legal norms with themselves, by reason of the provisions of Art. 7 CP and 73.d) LJC. This is consistent with a systematic interpretation of the Constitution and the LJC and with respect for the separation of powers, a fundamental principle of any democratic State governed by the Rule of Law.” (Highlighting does not correspond to the original votes).

In the specific case, the majority judgment makes references to the criteria of the European Committee of Social Rights of the Council of Europe, to the jurisprudence of other Constitutional Courts such as that of Colombia, and of the Inter-American Court of Human Rights itself. Indeed, when examining the issue of judicial independence, allusion is made to the “Basic Principles on the Independence of the Judiciary” adopted during the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Likewise, an invocation is made of Convention No. 128 and Recommendation No. 131 concerning Invalidity, Old-Age and Survivors' Benefits of 1967. I consider that the mention of such instruments is entirely pertinent if it is understood that it is for hermeneutical purposes and not as elements that integrate the constitutionality review standard.

Anamari Garro Vargas 1 [1] In this regard, folios 87 and 88 of the legislative file state the following:

f. 87 “I inform the ladies and gentlemen deputies that there is a motion that has been presented to add to the file that the substitute text established for the discussion of this proposal is the file….

Excuse me, I clarify that the base text will be that of file 19,651, which is incorporated with a substitute text motion, signed by all the factions, whereby at the moment the processing of Article 208 bis of file 19,922 begins, the substitute text motion will be made known, which uses as a basis the bill that had been presented by various organizations of the Poder Judicial.

That is the base text that would occupy the discussion of bill 19,922, which would also have its permanence established for four months in the respective committee, in the special committee that is formed, which will give time for it to return…, for the report and the actuarial study being conducted by the University of Costa Rica for the Pension Fund of the Poder Judicial to be received.

Under discussion, the motion.

The floor is given to Deputy Edgardo Araya Sibaja.

Deputy Edgardo Vinicio Araya Sibaja:

Thank you very much, fellow president, fellow deputies.

I just want to place our contrary position on record, our negative position on this fast-track motion, via 208 bis, that is intended to be approved for project 19,922, which to this day continues to be a project that regulates all pension systems, those charged to the budget in the case of Hacienda and others, and also includes those of the Poder Judicial.

We vote against it, because what the Frente Amplio has said is that when there is a fast track, the qualified majority is required for the text to enter that procedure, that fast-track path.

but what might be resolved on the merits of that text cannot be controlled.

And a simple majority could change the text that, let's say, had been agreed upon when it entered the fast-track procedure.

We put it to you this way a few hours ago to the Judicial Branch unions that were there, who met in the Office of the President of the Assembly where several of us deputies were present.

And the Judicial Branch unions said: Well, if file 19,922 is only going to keep its number and if the new text to be incorporated into 19,922 is exactly the one currently in file 19,651, which was the one presented by the unions, the unions said they had no major objections.

But as of today….

President Antonio Álvarez Desanti:

I ask you please to be silent so we can hear the presentation by Mr. Edgardo, which is also important to have on the record what he is stating and what was stated by the Judicial Branch unions.

Deputy Edgardo Araya Sibaja:

In that way, the representatives of all the Judicial Branch unions were informed by this deputy of the risks involved in the fast-track procedure, of the risks involved in the fact that one thing is the text that will go in, but there is no guarantee that this text will be the one that comes out.

And in that sense we said it, because they asked this deputy to sign the substitute motion for that file 19,922 to attest that it was the complete file 19,651—for those in the gallery, we are talking about Judicial Branch pensions, Judicial Branch pensions.

Well, at this moment the substitute motion is under review, so we have not signed anything, but we clearly told them that we did not commit to voting for this fast-track motion because we did not know it; we only learned of this fast-track motion a few hours ago.

And the problem with that fast-track motion—this is no small matter—is that they are complex motions regulating a series of steps, a series of procedures.

And if we cannot think carefully about whether it is a motion drafted in the heat of the moment, in haste, the risk we run is that later there could be significant procedural violations that could even affect the validity of that procedure.

That is why, and I want to absolutely state for the record the position of the bench at this moment for those reasons—because we do not have a clear text, what text we are really going to discuss now in file 19,922, and because we lack clarity on that motion which we only learned of about four hours ago and which requires a more adequate study—this legislative fraction will vote against that fast-track text which…, that fast-track motion, I reiterate, the risk we face is that there is no political guarantee at this moment that the text the unions believe is going in is the same one that will come out.

Thank you, Mr. President.

President Antonio Alvarez Desanti:

The motion has been sufficiently discussed.

I ask the lady and gentlemen deputies to take their seats in order to proceed to vote on it.

I ask that the doors be opened so that the deputies who are in the Hall of Former Presidents and near the corridor may return.

….

There are forty-nine lady and gentlemen deputies present.

I will repeat so that we are clear, today this motion we are voting on was discussed with the Judicial Branch unions, with representatives of the Judicial Branch administration, who agreed and it remains in the terms I indicated to them.

There is a substitute motion being added to the file so that the basis for discussion is the original text of file 19,651, which was the proposed amendment to Judicial Branch pensions, presented by a significant number of deputies of this Legislative Assembly, drafted within the Judicial Branch.

That would be the base text with which that commission would work for a period of four months to await the arrival of the actuarial study report being prepared by the University of Costa Rica, a period during which there will be sufficient time to receive in hearing the different organizations and the Judicial Branch authorities so that the reform to the Judicial Branch pension system may be enacted.

That is what this motion intends.

Consequently, there are forty-nine lady and gentlemen deputies in the session hall.

I ask that the doors be closed.

Those in favor of giving file 19,922 the procedure under Article 208 bis, according to the motion presented, for Judicial Branch pensions under the terms explained and recorded in the motion, will so indicate by standing. Forty-nine lady and gentlemen deputies present; for its approval, thirty-eight votes are required.

Thirty-nine deputies in favor, ten against, approved." (A motion for review was subsequently presented and was rejected by 40 deputies) Observations of SALA CONSTITUCIONAL voted by ballot Classification prepared by SALA CONSTITUCIONAL of the Judicial Branch. Its reproduction and/or distribution for profit is prohibited.

It is a faithful copy of the original - Taken from Nexus.PJ on: 09-05-2026 04:24:07.

Sala Constitucional Clase de asunto: Acción de inconstitucionalidad Control constitucional: Sentencia estimatoria Analizado por: SALA CONSTITUCIONAL Sentencia con Voto Salvado Sentencia con nota separada Indicadores de Relevancia Sentencia relevante Sentencia clave Sentencias Relacionadas Sentencia con datos protegidos, de conformidad con la normativa vigente Contenido de Interés:

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

NO APLICA.

Tema: PODER JUDICIAL Subtemas:

NO APLICA.

Tema: ACCIÓN DE INCONSTITUCIONALIDAD Subtemas:

NO APLICA.

011957-21. Acciones de inconstitucionalidad acumuladas, contra los arti´culos 224, 224 Bis, 226, 227, 236, 236 Bis y 239 y el Transitorio VI de la Ley Orga´nica del Poder Judicial, reformados mediante Ley No. 9544 de 24 de abril de 2018, asi´ como el artículo 208 Bis del Reglamento Interno de la Asamblea Legislativa.

Admisibilidad:

Por unanimidad, se rechazan de plano:

• a)los agravios de vicios de procedimientos referidos a la violación de la autonomía de los bancos del Estado y de la autonomía de la Caja Costarricense de Seguro Social por falta de legitimación.
• b)el análisis del agravio sobre la declaratoria de inconstitucionalidad por conexidad de la ley 9796 del 5 de diciembre de 2019, por ser motivo de análisis en la acción de inconstitucionalidad 20-007715-0007-CO.

En cuanto a la acción de inconstitucionalidad 19-1720-0007-CO, se rechazan de plano por falta de legitimación, de conformidad con el artículo 75 párrafo 1) de la Ley de la Jurisdicción Constitucional, los reclamos que buscan tutelar a la generalidad de servidores, funcionarios, pensionados y jubilados, en aquellos temas en los que la accionante no puede derivar una tutela o amparo de su derecho por no ser medio razonable para amparar su derecho.

Vicios de procedimiento legislativo:

Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declaran sin lugar las acciones acumuladas en cuanto a los alegados vicios de procedimiento. El magistrado Castillo Víquez da razones adicionales en cuanto a la violación del principio de publicidad. Las magistradas Hernández López y Garro Vargas ponen notas separadas. En cuanto al tema de los vicios alegados de la sesión de la Comisión Especial del 27 de julio de 2017, la magistrada Garro Vargas da razones diferentes.

Los magistrados Salazar Alvarado y Hernández Gutiérrez salvan el voto y declaran que la ley impugnada presenta el vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes; excepto aquellos en los que se requiera tomar posición para que exista voto de toda conformidad (artículo 60.2, Código Procesal Civil).

En cuanto a los agravios de fondo:

Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El magistrado Castillo Víquez da razones diferentes. La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declara inconstitucional y en consecuencia se anula el párrafo contenido en el artículo 239 de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 impugnada, que dice: "Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen".

Tercero. Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se interpreta la frase "(...) la presente reforma no les será aplicada en su perjuicio", contenida en el Transitorio II de la Ley 9544 de 24 de abril de 2018, en el sentido de que se refiere exclusivamente a las personas que han consolidado el derecho a la jubilación o el derecho a la pensión.

Cuarto: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declara inconstitucional el requisito de los 20 años de servicio exigido para efectos de obtener la pensión por sobrevivencia que se deriva del artículo 229 de la Ley 9544 de 24 de abril de 2018, en cuyo caso se mantiene vigente el requisito de 10 años para adquirir ese derecho, según el artículo 230 de la Ley 7333 de 5 de mayo de 1993 en la versión anterior a la reforma.

Se declaran sin lugar las acciones de inconstitucionalidad acumuladas, y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) en cuanto a los alegatos relativos a la omisión de tomar en cuenta la diferenciación de género en la edad de jubilación entre mujeres y hombres, se declara sin lugar las acciones. Los magistrados Salazar Alvarado y Hernández Gutiérrez declaran sin lugar este extremo de la acción, únicamente por razones de forma ante la ausencia de estudios técnicos. La magistrada Garro Vargas da razones diferentes. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran parcialmente con lugar las acciones acumuladas por la existencia de una omisión inconstitucional en la Ley 9544, al no contemplar criterios de género para fijar una edad diferenciada a fin de que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial se puedan jubilar o pensionar con un tiempo menor de servicio.

La magistrada Hernández López también salva el voto y declara con lugar parcialmente las acciones acumuladas por cuanto:

• a)considera que es contrario al Derecho de la Constitución excluir de los beneficios que otorgaba la Ley 7333 a las personas que, al momento de promulgarse la Ley 9544 aquí impugnada, contaban con 25 años o más de cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial.
• b)por la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, debido a que el legislador no le da el mismo trato frente a la ley, a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declaran sin lugar las acciones acumuladas en todos los demás extremos reclamados.

Los magistrados Castillo Víquez y Rueda Leal y las magistradas Hernández López y Garro Vargas consignan notas separadas.

La declaratoria de las inconstitucionalidades, con excepción de lo indicado en el punto primero de los agravios de fondo de esta parte dispositiva -que rige partir del mes siguiente de la notificación de la sentencia- tienen efectos declarativos y retroactivos a la fecha de vigencia de la ley, todo sin perjuicio de los derechos adquiridos de buena fe y situaciones jurídicas consolidadas. Comuníquese a los Poderes Legislativo y Judicial y a la Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.

Admisibilidad:

Por unanimidad, se rechazan de plano:

• a)los agravios de vicios de procedimientos referidos a la violación de la autonomía de los bancos del Estado y de la autonomía de la Caja Costarricense de Seguro Social por falta de legitimación.
• b)el análisis del agravio sobre la declaratoria de inconstitucionalidad por conexidad de la ley 9796 del 5 de diciembre de 2019, por ser motivo de análisis en la acción de inconstitucionalidad 20-007715-0007-CO.

En cuanto a la acción de inconstitucionalidad 19-1720-0007-CO, se rechazan de plano por falta de legitimación, de conformidad con el artículo 75 párrafo 1) de la Ley de la Jurisdicción Constitucional, los reclamos que buscan tutelar a la generalidad de servidores, funcionarios, pensionados y jubilados, en aquellos temas en los que la accionante no puede derivar una tutela o amparo de su derecho por no ser medio razonable para amparar su derecho.

Vicios de procedimiento legislativo:

Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declaran sin lugar las acciones acumuladas en cuanto a los alegados vicios de procedimiento. El magistrado Castillo Víquez da razones adicionales en cuanto a la violación del principio de publicidad. Las magistradas Hernández López y Garro Vargas ponen notas separadas. En cuanto al tema de los vicios alegados de la sesión de la Comisión Especial del 27 de julio de 2017, la magistrada Garro Vargas da razones diferentes.

Los magistrados Salazar Alvarado y Hernández Gutiérrez salvan el voto y declaran que la ley impugnada presenta el vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes; excepto aquellos en los que se requiera tomar posición para que exista voto de toda conformidad (artículo 60.2, Código Procesal Civil).

En cuanto a los agravios de fondo:

Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El magistrado Castillo Víquez da razones diferentes. La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declara inconstitucional y en consecuencia se anula el párrafo contenido en el artículo 239 de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 impugnada, que dice: "Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen".

Tercero. Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se interpreta la frase "(...) la presente reforma no les será aplicada en su perjuicio", contenida en el Transitorio II de la Ley 9544 de 24 de abril de 2018, en el sentido de que se refiere exclusivamente a las personas que han consolidado el derecho a la jubilación o el derecho a la pensión.

Cuarto: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declara inconstitucional el requisito de los 20 años de servicio exigido para efectos de obtener la pensión por sobrevivencia que se deriva del artículo 229 de la Ley 9544 de 24 de abril de 2018, en cuyo caso se mantiene vigente el requisito de 10 años para adquirir ese derecho, según el artículo 230 de la Ley 7333 de 5 de mayo de 1993 en la versión anterior a la reforma.

Se declaran sin lugar las acciones de inconstitucionalidad acumuladas, y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) en cuanto a los alegatos relativos a la omisión de tomar en cuenta la diferenciación de género en la edad de jubilación entre mujeres y hombres, se declara sin lugar las acciones. Los magistrados Salazar Alvarado y Hernández Gutiérrez declaran sin lugar este extremo de la acción, únicamente por razones de forma ante la ausencia de estudios técnicos. La magistrada Garro Vargas da razones diferentes. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran parcialmente con lugar las acciones acumuladas por la existencia de una omisión inconstitucional en la Ley 9544, al no contemplar criterios de género para fijar una edad diferenciada a fin de que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial se puedan jubilar o pensionar con un tiempo menor de servicio.

La magistrada Hernández López también salva el voto y declara con lugar parcialmente las acciones acumuladas por cuanto:

• a)considera que es contrario al Derecho de la Constitución excluir de los beneficios que otorgaba la Ley 7333 a las personas que, al momento de promulgarse la Ley 9544 aquí impugnada, contaban con 25 años o más de cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial.
• b)por la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, debido a que el legislador no le da el mismo trato frente a la ley, a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declaran sin lugar las acciones acumuladas en todos los demás extremos reclamados.

Los magistrados Castillo Víquez y Rueda Leal y las magistradas Hernández López y Garro Vargas consignan notas separadas.

La declaratoria de las inconstitucionalidades, con excepción de lo indicado en el punto primero de los agravios de fondo de esta parte dispositiva -que rige partir del mes siguiente de la notificación de la sentencia- tienen efectos declarativos y retroactivos a la fecha de vigencia de la ley, todo sin perjuicio de los derechos adquiridos de buena fe y situaciones jurídicas consolidadas. Comuníquese a los Poderes Legislativo y Judicial y a la Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.

CO02/22 ... Ver más Sentencias Relacionadas Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 075- Asunto previo en vía judicial o administrativa pendiente de resolución Subtemas:

NO APLICA.

ARTÍCULO 75 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…De acuerdo con el primero de los supuestos previstos por el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional, la norma cuestionada no debe ser susceptible de aplicación concreta, que permita luego la impugnación del acto aplicativo y su consecuente empleo como asunto base. En segundo lugar, se prevé la posibilidad de acudir en defensa de "intereses difusos", que son aquellos cuya titularidad pertenece a grupos de personas no organizadas formalmente, pero unidas a partir de una determinada necesidad social, una característica física, su origen étnico, una determinada orientación personal o ideológica, el consumo de un cierto producto, etc. El interés, en estos casos, se encuentra difuminado, diluido (difuso) entre una pluralidad no identificada de sujetos. Esta Sala ha enumerado diversos derechos a los que les ha dado el calificativo de "difusos", tales como el medio ambiente, el patrimonio cultural, la defensa de la integridad territorial del país, el buen manejo del gasto público, y el derecho a la salud, entre otros. Por otra parte, la enumeración que ha hecho la Sala Constitucional no es taxativa. Finalmente, cuando el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional habla de intereses "que atañen a la colectividad en su conjunto", se refiere a los bienes jurídicos explicados en las líneas anteriores, es decir, aquellos cuya titularidad reposa en los mismos detentadores de la soberanía, en cada uno de los habitantes de la República. No se trata por ende de que cualquier persona pueda acudir a la Sala Constitucional en tutela de cualesquiera intereses (acción popular), sino que todo individuo puede actuar en defensa de aquellos bienes que afectan a toda la colectividad nacional, sin que tampoco en este campo sea válido ensayar cualquier intento de enumeración taxativa…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTÍCULO 73 DE LA CONSTITUCIÓN POLÍTICA. LEGITIMACIÓN PARA DEFENDER LA AUTONOMÍA POR VÍA DE ACCIÓN DE INCONSTITUCIONALIDAD. “…Sobre el particular debe tomarse en cuenta que este Tribunal ha resuelto, en forma reiterada, que la legitimación para defender la autonomía, por la vía de acción de inconstitucionalidad, le compete al ente público respectivo. Así, por ejemplo, en la sentencia número 2008-017295 de las 14 horas y 48 minutos del 19 de noviembre del 2008 dispuso que “sólo la institución autónoma afectada por la omisión en el trámite legislativo es la que se encuentra legitimada para accionar” (en el mismo sentido la sentencia número 2008-014190 de las 10 horas del 24 de septiembre de 2008). Debe decirse que en un caso donde se alegaba una posible violación a la autonomía de la Caja Costarricense de Seguro Social, esta Sala insistió en que“(…) la línea jurisprudencial de este Tribunal es clara al establecer que, cuando en una acción de inconstitucionalidad se alega la defensa de intereses institucionales, se está ante un supuesto de lesión individual y directa, razón por la cual deben ser sus propios representantes legales y, no un tercero, quienes acudan ante esta Sala en su defensa (ver en este sentido las sentencias números 2009-00305 de las 15 horas 13 minutos del 14 de enero de 2009, 2008-017295 de las 14 horas 48 minutos del 19 de noviembre de 2008, 2016-01669 de las 9 horas 30 minutos del 03 de febrero de 2016 y 2017-008159 de las 9 horas 15 minutos del 2 de junio de 2017, entre otras)…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 121- Atribuciones de la Asamblea Legislativa Subtemas:

NO APLICA.

ARTÍCULO 121 INCISO 22 DE LA CONSTITUCIÓN POLÍTICA. “…la Sala ha tenido la oportunidad de pronunciarse en diversas oportunidades y el común denominador del criterio jurisprudencial ha sido el reconocimiento de la potestad con la que cuenta el legislador para auto regular su organización y funcionamiento como Poder de la República, pero también para establecer los distintos procedimientos legislativos que utilizarán en la formación de la ley (artículo 121 inciso 22 en relación con el artículo 9, ambos de la Constitución Política). Al respecto, la Sala ha señalado que, la potestad de emitir el reglamento interno de la Asamblea Legislativa, como la de reformarlo o la de interpretarlo, son parte de la "interna corporis" de las regulaciones intrínsecas dadas por el propio Parlamento en uso de sus potestades más esenciales que, a su vez, constituye una de las garantías básicas derivadas del principio democrático: la autodeterminación del Parlamento sobre su accionar interno…” CO02/22 ARTÍCULO 195 DE LA CONSTITUCIÓN POLÍTICA. “…si la mayoría de este Tribunal, cuando se ha invocado el quebranto al principio de rigidez constitucional, ha sentado la doctrina que las vulneraciones al procedimiento del 195 constitucional han de ser sustanciales y, por consiguiente, no toda violación a lo que dispone ese numeral conlleva la nulidad de la reforma constitucional, mal haríamos en seguir una vía distinta, cuando se trata de la vulneración a una norma que se dispone en el procedimiento especial. La lógica impone que se debe dar el mismo razonamiento, pues si en la normativa de mayor rango -la norma constitucional- se exige que el vicio debe ser sustancial, en la normativa de menor rango - el Reglamento de la Asamblea Legislativa y la moción que norma el procedimiento especial- también el vicio ha de tener esa característica…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 195- Reforma parcial de la Constitución Política Subtemas:

NO APLICA.

ARTÍCULO 195 DE LA CONSTITUCIÓN POLÍTICA. “…si la mayoría de este Tribunal, cuando se ha invocado el quebranto al principio de rigidez constitucional, ha sentado la doctrina que las vulneraciones al procedimiento del 195 constitucional han de ser sustanciales y, por consiguiente, no toda violación a lo que dispone ese numeral conlleva la nulidad de la reforma constitucional, mal haríamos en seguir una vía distinta, cuando se trata de la vulneración a una norma que se dispone en el procedimiento especial. La lógica impone que se debe dar el mismo razonamiento, pues si en la normativa de mayor rango -la norma constitucional- se exige que el vicio debe ser sustancial, en la normativa de menor rango - el Reglamento de la Asamblea Legislativa y la moción que norma el procedimiento especial- también el vicio ha de tener esa característica…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Publicidad.

Subtemas:

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PRINCIPIO DE PUBLICIDAD. “…A juicio de Tribunal, respecto de este extremo en particular, tampoco se ha configurado una infracción esencial al procedimiento legislativo, por violación al principio de publicidad. Debe reiterarse, en primer lugar, que en este caso sí se realizó la mencionada publicación, pero se cuestiona una presunta publicación tardía o extemporánea de tal texto en cuestión. Por lo que debe recordarse que esta Sala ha admitido que no siempre, la falta de publicación, en un determinado momento procesal, constituye un vicio invalidante del procedimiento legislativo…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 167- Restricciones a la potestad legislativa en materia de organización y funcionamiento del Poder Judicial Subtemas:

NO APLICA.

ARTÍCULO 167 DE LA CONSTITUCIÓN POLÍTICA. “…Además de lo anterior, definitivamente del artículo 167 de la Constitución Política, se desprenden dos grandes líneas de trabajo del Poder Judicial: por un lado, todo lo relativo a su organización y funcionamiento en su función esencial que es la jurisdiccional y la administración de justicia, pero por otro lado también, y no menos importante, todo lo que tiene que ver con su organización y funcionamiento desde el punto de vista administrativo. Definitivamente el Poder Judicial desempeña ambas atribuciones en los dos ámbitos y precisamente por ello su función no debe ser clasificada como únicamente jurisdiccional pues para realizar ésta, indiscutiblemente debe realizar trabajo administrativo que tiene que ver con todo lo relacionado a su situación presupuestaria, al manejo de sus recursos humanos y materiales, al clima organizacional, a la rotación de personal, entre otros aspectos que no son propiamente función de administración de justicia, pero que sientan las bases para que ésta se pueda realizar…” CO02/22 ... Ver más Contenido de Interés:

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

NO APLICA.

PRINCIPIO DE INDEPENDENCIA JUDICIAL. “…Es importante recordar que el concepto de independencia judicial tiene dos dimensiones: la individual (también llamada personal o subjetiva) y la institucional (relativa al Poder Judicial). A los efectos de esta acción, es importante tomar en cuenta que un elemento trascendental para evitar que el principio de independencia judicial se haga nugatorio, es comprender que éste abarca varias facetas más allá de la orgánica, institucional y funcional y puede ser visualizado también desde la dimensión individual, relativa al trabajador (a) del Poder Judicial en relación con todos los factores que le rodean y que, a su vez, permiten garantizar el cumplimiento pleno y efectivo de ese principio de cara a la institución…” “… Desde esta perspectiva, una parte muy importante de esta independencia judicial, es la asignación presupuestaria que se le ha garantizado al Poder Judicial a nivel constitucional, debiendo recordarse que los legisladores que -en su momento- aprobaron la reforma al artículo 177 de la Constitución Política, tuvieron la visión de asegurarle a este Poder de la República, un presupuesto mínimo del 6% de los ingresos ordinarios de la República con el cual pudiera desempeñar las funciones y potestades que le han sido conferidas, evitándose con ello que la determinación del presupuesto se convirtiera en un instrumento de intervención política en la función jurisdiccional y, con ello, en un mecanismo para dejar a la deriva la independencia de este Poder de la República…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 157- Integrantes de la Corte Suprema de Justicia Subtemas:

NO APLICA.

ARTÍCULO 157 DE LA CONSTITUCIÓN POLÍTICA. “…Tampoco estima la Sala que resultan lesivas de su independencia económica, tutelada en el 157 de la Constitución, porque el 6 % Constitucional como techo mínimo para la administración de justicia, no se ve afectado con la ley impugnada. Al Poder Judicial, la Asamblea Legislativa le ha respetado ese porcentaje e incluso, desde hacer más de 15 años le asigna uno mayor, considerando nuevas asignaciones y funciones que se le han dado mediante reformas legales. En todo caso, no se demuestra en el expediente que la asignación del 6% se vea afectada por los recursos públicos que se destinan al Fondo de Jubilaciones del Poder Judicial…” CO02/22 ... Ver más Contenido de Interés:

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

NO APLICA.

PRINCIPIO DE IGUALDAD. “…De allí que no 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, sólo es lesionada cuando una desigualdad está desprovista de una justificación objetiva y razonable lo cual obliga a una valoración de su 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. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTICULO 73 DE LA CONSTITUCIÓN POLÍTICA. “…De ese modo es constitucionalmente aceptable que exista una diferencia entre el régimen de pensiones de la Caja Costarricense del Seguro Social y el del Poder Judicial, por responder su promulgación a distintas necesidades y condiciones que tornan impropia su comparación simple en términos de rebajas, aportes obreros y perfil de beneficios, sin sopesar también las diferencias entre el número de cotizantes, topes, cobertura de derechos adquiridos y otras condiciones que los hacen diferentes. También cabe agregar que es público y notorio, por haber sido informado públicamente por las propias autoridades de esa institución, que el régimen de pensiones de la Costarricense del Seguro Social presenta importantes amenazas en su estabilidad financiera y que en respuesta a ello, se están considerando cambios en las requisitos de elegibilidad y al perfil de beneficios de modo que también desde este punto de vista, la comparación que plantean los accionantes pierde peso y relevancia para servir de sustento a una declaración de inconstitucionalidad por desigualdad, como lo pide…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 056- Trabajo Subtemas:

NO APLICA.

ARTÍCULO 56 DE LA CONSTITUCIÓN POLÍTICA. “…De este modo, establece un gravamen total hasta de un cincuenta y cinco por ciento (55%), lo cual, estaría superando lo permitido en el inciso 2), del artículo 71, del Convenio de la Organización Internacional del Trabajo, que fija el establecimiento de los costos de las pensiones en un 50%, con ayuda de los impuestos y contribuciones de la comunidad considerada en su totalidad, no solo de los trabajadores y pensionados y jubilados. Esto implica que el deudor tributario, en este caso, el pensionado, estaría aportando aún más impuestos con el de la renta, que implicaría mayores costos y deducciones en su caso, incluso un mayor sacrificio exigido por la sociedad…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 034- Irretroactividad de la ley Subtemas:

NO APLICA.

ARTÍCULO 34 DE LA CONSTITUCIÓN POLÍTICA. “…Ahora bien, no se afecta la protección del artículo 34 de la Carta Fundamental con la creación de la contribución solidaria impugnada, en cuanto ésta no rige retroactivamente, sino a partir de la vigencia de la ley que la crea, circunstancia que comparte con los tributos en general…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 121- Atribuciones de la Asamblea Legislativa Subtemas:

NO APLICA.

ARTÍCULO 121 INCISO 13 DE LA CONSTITUCIÓN POLÍTICA. “…Se invoca como violación el hecho de que la Asamblea Legislativa haya creado un tributo especial, cuando, de conformidad con el numeral 121, inciso 13, de la Carta Fundamental únicamente se le atribuye a este órgano constitucional el establecer los impuestos nacionales y aprobar los municipales. Este agravio debe ser rechazado por varios motivos. Primero, lo que se crea en este caso es una contribución parafiscal, sea un tributo que se destina a una finalidad económica y social, en este caso a sufragar los gastos administrativos de Junta que se crea, lo que constitucional y doctrinariamente está más que justificado. En segundo término, resulta lógico de si un grupo de trabajadores tienen un régimen especial de jubilaciones y pensiones, conformando un fondo separado del régimen general -el de invalidez, vejez y muerte que administra la Caja Costarricense del Seguro Social-, resulta razonable y proporcional que los trabajadores activos, los jubilados y pensionados contribuyan al mantenimiento del órgano que tiene como competencia su administración. Finalmente, si la Asamblea Legislativa tiene la potestad de crear tributos con alcance general, ello no impide que pueda crear contribuciones parafiscales, cuando existen motivos objetivos y razonables para su creación…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 034- Irretroactividad de la ley Subtemas:

NO APLICA.

ARTÍCULO 34 DE LA CONSTITUCIÓN POLÍTICA. “…el Tribunal ha sido concluyente en cuanto a que no existe un derecho a que la prestación derivada del derecho a la pensión lo sea por un monto específico (ver en ese sentido la propia sentencia 2020-19274 recién mencionada). Tampoco se trata de que se petrifiquen las normas regulatorias del sistema de jubilación porque la Sala también ha admitido que es válido que, conforme sea necesario y siempre cumpliéndose con el respeto de los derechos fundamentales, se hagan las modificaciones que sean necesarias para ajustar el sistema. Así las cosas, no se considera que el sólo hecho de que se hubiera decretado la obligación de aportar una contribución especial, solidaria y redistributiva en este caso esté lesionando algún derecho adquirido de los jubilados o pensionados en los términos en que lo alegan. Tampoco se lesionan situaciones jurídicas de las personas a las que todavía no se les ha declarado el derecho pues debe recordarse que el denominado derecho de pertenencia que este Tribunal ha identificado jurisprudencialmente, hace surgir en favor de los cotizantes un simple expectativa de obtener el derecho a la jubilación, ya que no han generado situaciones consolidadas ni derechos adquiridos en el momento de entrar en vigencia la nueva ley, así que ésta entra a regular dicha situación en el estado en que se encuentre, siendo claro entonces que la norma (art. 34 constitucional) se refiere a las situaciones jurídicas subjetivas ya consolidadas, no así a las que configuran meras expectativas, pues estas, al no haberse perfeccionado el derecho, están indiscutiblemente sujetas a las futuras regulaciones que la ley introduzca…” CO02/22 ... Ver más Contenido de Interés:

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

NO APLICA.

PRINCIPIO DE RESERVA LEGAL. “…este Tribunal que el principio de reserva legal no sólo garantiza la libertad frente al resto de los ciudadanos, sino que constituye una garantía de control frente al poder público pues, precisamente, la regulación reglamentaria de una actividad que incide en una multiplicidad de derechos fundamentales, requiere de un marco normativo de rango legal, de manera tal que los derechos fundamentales no pueden quedar sustraídos del debate público que se genera en la Asamblea Legislativa, siendo que la Administración Pública carece de legitimidad para regular el ejercicio de los derechos fundamentales, lo cual está recogido en la Ley General de la Administración Pública cuando se indica que “El régimen jurídico de los derechos fundamentales estará reservado a la Ley, sin perjuicio de los Reglamentos Ejecutivos correspondientes”…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 033- Igualdad ante la ley Subtemas:

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ARTÍCULO 33 DE LA CONSTITUCIÓN POLÍTICA. SOBRE LA IGUALDAD EN LA EDAD DE RETIRO ENTRE HOMBRES Y MUJERES. “…Hay razones justificadas y objetivas para dar un trato igualitario entre hombres y mujeres en lo referente a la edad de retiro. En primer lugar, se busca con tal mandato legal un fin constitucional legítimo, como lo son el disfrute efectivo de un derecho fundamental a la jubilación y a la pensión y el garantizar a un sector de la población el acceso, en términos más amplios, a la seguridad social -artículo 73 de la Carta Fundamental-. En segundo término, esa equiparación no es un acto arbitrario, carente de razonabilidad y de proporcionalidad; todo lo contrario, está basada en estudios actuariales -responde al escenario dos- y se busca con ello cerrar portillos. En tercer lugar, con dicha equiparación se busca corregir un déficit actuarial que tiene un régimen de jubilaciones y pensiones especial, pues de lo contrario, de no adoptarse esta medida y otras que se establecen en la normativa legal impugnada, la consecuencia lógica y necesaria sería la no sostenibilidad en el mediano plazo del citado régimen, con el consecuente perjuicio para jubilados, pensionados y trabajadores activos…No menos importante para la mayoría del Tribunal es el argumento de que la tendencia mundial en los regímenes de jubilaciones y pensiones es hacia la equiparación de la edad entre hombre y mujeres. La razón de esa tendencia encuentra, entre otras razones, justificación de que hoy en día es que la mujer se ha incorporado a la fuerza laboral de manera muy significativa y que tiene una expectativa de vida mayor a la de los hombres…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTÍCULO 73 DE LA CONSTITUCIÓN POLÍTICA. PENSIONES POR SOBREVIVENCIA. “…La seguridad social es un instrumento esencial para crear cohesión social, contribuye a garantizar la paz social y la integración social, forma parte indispensable de la política social de los gobiernos y es una herramienta importante para evitar y aliviar la pobreza; administrada correctamente aumenta la productividad al proporcionar asistencia médica, seguridad de ingresos y servicios sociales y aunque representa un costo para las empresas, es también una inversión en las personas y, a la vez, un apoyo para éstas (ver Seguridad Social: un nuevo consenso. OIT. Ginebra, 2002, p. 1y 2). Dentro del grupo de prestaciones contenidas por la seguridad social en Costa Rica, se encuentran las “pensiones por sobrevivencia” que son aquéllas que -previo cumplimiento de los requisitos legalmente establecidos- pueden ser otorgadas a los familiares que sobreviven al trabajador o trabajadora activa que fallece, independientemente de que la causa de la muerte sea por enfermedad, accidente laboral u otros. De este modo, los “sobrevivientes” en el contexto de la seguridad social, hacen referencia a la pareja del trabajador o trabajadora y a sus huérfanos, adquiriendo especial relevancia su protección porque, justamente, al perderse por muerte una parte importante del sostén de una familia, se hace indispensable garantizar a sus deudos el continuar contando, al menos, con las condiciones mínimas necesarias para sobrevivir mientras se logran acomodar a la nueva situación y es ahí donde cobran sentido las políticas de protección social en la medida en que contribuyen a prevenir y reducir la pobreza, la desigualdad, promover la inclusión social y el respeto por la dignidad humana; que contribuyen a dotar a las personas de una vida digna…” CO02/22 ... Ver más Contenido de Interés:

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

NO APLICA.

DERECHO A LA INMUTABILIDAD EN MATERIA DE SEGURIDAD SOCIAL. “…En relación con este principio debe recordarse que esta Sala en reiteradas ocasiones ha señalado que nadie tiene derecho a la inmutabilidad del ordenamiento, es decir, a que las reglas nunca cambien (ver sentencia número 6134-98 de las 17 horas 24 minutos de 26 de agosto de 1998) y tratándose de regímenes especiales de jubilaciones y pensiones, el legislador cuenta con plena potestad de realizar las modificaciones que estime pertinentes para darle sostenibilidad al régimen, pero además porque se trata de sistemas solidarios que se van construyendo con el aporte de trabajadores, patronos y el Estado en la proporción legalmente establecida, de manera que a efecto de garantizar el cumplimiento de principios básicos de la seguridad y protección social, es competencia, pero además obligación del legislador, el adoptar las medidas que sean necesarias para mantener el equilibrio actuarial en esos regímenes y ello implica, que la mutabilidad del ordenamiento en esta materia, está dirigida a satisfacer el interés de la colectividad y no los intereses particulares que pudieren tener algunos de sus miembros. Recuérdese que, inclusive, en esta materia, en atención a los fines sociales que tutela, pudiere ser posible que eventualmente se diera alguna modificación que pudiere considerarse regresiva, pero ello sería válido en la medida en que sea por ley, esté justificado en criterios técnicos y atienda parámetros de razonabilidad y proporcionalidad…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 074- Irrenunciabilidad de los derechos sociales Subtemas:

NO APLICA.

ARTÍCULO 74 DE LA CONSTITUCIÓN POLÍTICA. DERECHO A LA JUBILACIÓN Y A LA POSTERGACIÓN. “…el derecho a la jubilación, tal y como se ha explicado en su jurisprudencia. No obstante ello, no es posible deducir de ese derecho fundamental, ni de ningún otro, que haya un derecho fundamental a la postergación de la jubilación, de ahí que todo lo relativo a esto es un asunto de política legislativa- en los casos de los regímenes especiales- o que atañe a las competencias constitucionales que corresponden a la CCSS -en el supuesto de régimen del IVM-, por lo que el hecho de que en un régimen especial o general no se contemple este supuesto, no conlleva una inconstitucionalidad de esa omisión. Tampoco es de recibo el argumento que se vulnera el principio de igual, toda vez que en el caso del régimen del IVM sí está previsto este beneficio, mientras que en el régimen de Pensiones y Jubilaciones del Poder Judicial no, por la elemental razón de que se trata de regímenes diferentes, de distinta naturaleza, de perfiles jubilatorios diferentes – edad de retiro, monto de cotización, cálculo de la jubilación, etc.-, de ahí que no es posible deducir un quebranto al derecho de igual, toda vez que las personas que pertenecen al régimen general no se encuentran en la misma situación de las personas que están en régimen especial, ni las proyecciones actuariales en uno y otro régimen son iguales. Hay que tener presente que el derecho a la igualdad ante la ley no significa que el legislador debe tratar de manera igual a las personas que están en regímenes que, algunos aspectos no sustanciales, tienen ciertas características similares, lo anterior porque no toda desigualdad tiene tal magnitud o intensidad que lesione su núcleo esencial, para que tal hecho acontezca es necesario que se trate de una discriminación odiosa, que suponga en sí misma o por sus efectos una violación a un derecho fundamental, situación que no se presenta en el sub judice…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTÍCULO 73 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. INCONSTITUCIONALIDAD POR OMISIÓN. “…Finalmente, hay que tener presente que la inconstitucionalidad por omisión se da en aquellos casos que se omite realizar por parte del legislativo un mandato expreso que está en la Carta Fundamental o se trata de una omisión relativa, es decir, aquellos casos en los cuales de da un trato diferenciado a grupos que están en la misma posición sin que haya una justificación objetiva y razonable y no se busca la concretización de un fin constitucional…” CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: PENSIÓN Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS SEPARADAS: Magistrados: Castillo Víquez, Hernández López, Garro Vargas, Rueda Leal, Salazar Alvarado, Hernández Gutiérrez.

VICIOS DE PROCEDIMIENTO LEGISLATIVO:

Ø El magistrado Castillo Víquez da razones adicionales en cuanto a la violación del principio de publicidad.

Ø Las magistradas Hernández López y Garro Vargas ponen notas separadas. En cuanto al tema de los vicios alegados de la sesión de la Comisión Especial del 27 de julio de 2017, la magistrada Garro Vargas da razones diferentes.

Ø Los magistrados Salazar Alvarado y Hernández Gutiérrez salvan el voto y declaran que la ley impugnada presenta el vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes; excepto aquellos en los que se requiera tomar posición para que exista voto de toda conformidad (artículo 60.2, Código Procesal Civil).

EN CUANTO A LOS AGRAVIOS DE FONDO:

Ø El magistrado Castillo Víquez da razones diferentes.

Ø La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales.

Ø El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n. 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

SE DECLARAN SIN LUGAR LAS ACCIONES DE INCONSTITUCIONALIDAD ACUMULADAS.

· Los magistrados Salazar Alvarado y Hernández Gutiérrez declaran sin lugar este extremo de la acción, únicamente por razones de forma ante la ausencia de estudios técnicos.

Ø La magistrada Garro Vargas da razones diferentes.

Ø El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran parcialmente con lugar las acciones acumuladas por la existencia de una omisión inconstitucional en la Ley 9544, al no contemplar criterios de género para fijar una edad diferenciada a fin de que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial se puedan jubilar o pensionar con un tiempo menor de servicio.

Ø La magistrada Hernández López también salva el voto y declara con lugar parcialmente las acciones acumuladas por cuanto:

• a)considera que es contrario al Derecho de la Constitución excluir de los beneficios que otorgaba la Ley 7333 a las personas que, al momento de promulgarse la Ley 9544 aquí impugnada, contaban con 25 años o más de cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial.
• b)por la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, debido a que el legislador no le da el mismo trato frente a la ley, a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen.

Ø Los magistrados Castillo Víquez y Rueda Leal y las magistradas Hernández López y Garro Vargas consignan notas separadas.

CO02/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 8. JURISPRUDENCIA CIDH Tema: SENTENCIAS SALA CONSTITUCIONAL - CORTE IDH Subtemas:

Caso contencioso.

“…Finalmente, algunos de los accionantes han mencionado dentro de este reclamo concreto, la existencia de una lesión a la Convención Americana Sobre Derechos Humanos, señalando que ya la Corte Interamericana de Derechos Humanos, como intérprete de dicho instrumento, fijó las condiciones mínimas exigidas a los Estados para el respeto del derecho a la seguridad social en el ámbito del sistema americano de Derechos Humanos. Refieren los interesados que en el caso “Muelle Flores contra Perú” se dejaron establecidas unas pautas que se ven contradichas con la emisión de la Ley 9544 en general y en particular con la disposición transitoria VI con la que se afectan derechos convencionales de las personas con menos de 28 años y seis meses de servicio a la fecha de entrada en vigencia de la reforma. Sobre el tema, la revisión de texto de la decisión citada permite a la Sala concluir que dicha sentencia contiene elementos relevantes para la interpretación del derecho fundamental a la seguridad social, pero que no resultan relevantes ni pertinentes para la solución de este reclamo ni de este proceso en general. En la sentencia mencionada, la Corte Interamericana de Derechos Humanos resolvió el caso de una persona ya jubilada, a quien se le dejó de pagar la suma periódica correspondiente que había venido percibiendo, debido a la privatización de la empresa pública que cubría dicho pago. El caso resultó más grave aún, por cuanto el interesado obtuvo por parte de la justicia peruana, al menos dos sentencias firmes en su favor y sin embargo, al momento de plantear su queja ante el órgano de justicia internacional, no había logrado que se hiciera efectiva la reanudación del pago efectivo de su jubilación. Finalmente, algunos de los accionantes han mencionado dentro de este reclamo concreto, la existencia de una lesión a la Convención Americana Sobre Derechos Humanos, señalando que ya la Corte Interamericana de Derechos Humanos, como intérprete de dicho instrumento, fijó las condiciones mínimas exigidas a los Estados para el respeto del derecho a la seguridad social en el ámbito del sistema americano de Derechos Humanos. Refieren los interesados que en el caso “Muelle Flores contra Perú” se dejaron establecidas unas pautas que se ven contradichas con la emisión de la Ley 9544 en general y en particular con la disposición transitoria VI con la que se afectan derechos convencionales de las personas con menos de 28 años y seis meses de servicio a la fecha de entrada en vigencia de la reforma. Sobre el tema, la revisión de texto de la decisión citada permite a la Sala concluir que dicha sentencia contiene elementos relevantes para la interpretación del derecho fundamental a la seguridad social, pero que no resultan relevantes ni pertinentes para la solución de este reclamo ni de este proceso en general. En la sentencia mencionada, la Corte Interamericana de Derechos Humanos resolvió el caso de una persona ya jubilada, a quien se le dejó de pagar la suma periódica correspondiente que había venido percibiendo, debido a la privatización de la empresa pública que cubría dicho pago. El caso resultó más grave aún, por cuanto el interesado obtuvo por parte de la justicia peruana, al menos dos sentencias firmes en su favor y sin embargo, al momento de plantear su queja ante el órgano de justicia internacional, no había logrado que se hiciera efectiva la reanudación del pago efectivo de su jubilación…” 11957-21 CO11/22 ... Ver más Resolución: 2021011957 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las diecisiete horas cero minutos del veinticinco de mayo de dos mil veintiuno.- Acciones de inconstitucionalidad acumuladas, promovidas por Mario Alberto Mena Ayales, mayor, casado dos veces, jubilado judicial, con cédula 1-0525-0562, vecino de San José, en su condición de Presidente de la Asociación Nacional de Empleados Judiciales; Juan Carlos Sebiani Serrano, portador de la ce´dula de identidad 1-0782-0001, en su calidad de Presidente de la Asociacio´n Nacional de Profesionales del Poder Judicial; Herna´n Campos Vargas, con ce´dula de identidad número 1-0519-0160 como Secretario General del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD); Yesenia Paniagua Gome´z, con ce´dula número 1-0845-0494 en su calidad de Presidenta de la Asociacio´n de Profesionales en Psicologi´a del Poder Judicial; A´lvaro Rodri´guez Zamora, ce´dula de identidad número 1-0477-0319, en su condicio´n de Presidente del Sindicato Asociacio´n de Investigadores en Criminali´stica y Afines; Johnny Meji´as A´vila, con ce´dula de identidad 9-0044-0592, en su calidad de Presidente del Consejo de Administracio´n y O´scar Enrique Uman~a Chaco´n, ce´dula de identidad número 3-0272-0995, como Gerente General, ambos de la Cooperativa de Ahorro y Cre´dito de Servidores Judiciales, Responsabilidad Limitada (Coopejudicial, R. L.); Damaris Molina Gonza´lez, con ce´dula de identidad 2-0269-0487, en su condicio´n de Presidenta de la Asociacio´n Nacional de Jubilados y Pensionados del Poder Judicial; Jorge Luis Morales Garci´a, ce´dula de identidad número 2-0399-0222, en su calidad de Secretario General del Sindicato de la Judicatura (SINDIJUD); Ana Luisa Meseguer Monge, portador de la ce´dula de identidad 9-0030-0193, como Presidenta de la Asociacio´n Costarricense de Juezas; Carlos A´lvarez Casasola, ce´dula de identidad número 1-396-124, en su condicio´n de Presidente de la Caja de Pre´stamos y Descuentos de los Empleados del Poder Judicial (CAPREDE); Adriana Orocu´ Chavarri´a, ce´dula de identidad No. 3-0317-0898, de forma personal y en su condicio´n de Presidenta de la Asociacio´n Costarricense de la Judicatura; Ingrid Fonseca Esquivel, portadora de la ce´dula de identidad 1-0698-0988; Freddy Arias Robles, con ce´dula de identidad 1-0727-0493; German Esquivel Campos, ce´dula de identidad número 1-0965-0647; Yerma Campos Calvo, con ce´dula de identidad número 1-0607-0534; Maribel Bustillo Piedra, ce´dula de identidad número 1-0683-0430; Pedro Valverde Di´az, ce´dula de identidad 1-0634-0537; Juan Carlos Cubillo Miranda, ce´dula de identidad número 5-0219-0266; Maykel Coles Ramos, portador de la ce´dula de identidad 2-0452-0646; Alonso Herna´ndez Me´ndez, con ce´dula de identidad número 1-1145-0746; Ana Luci´a Va´squez Rivera, ce´dula de identidad 1-0690-0133; Estrella Soto Quesada, portadora de la ce´dula de identidad 2-0345-0973; Mario Alberto Sa´enz Rojas, ce´dula de identidad número 1-0644-0873; Paula Esmeralda Guido Howell, ce´dula de identidad 1-0675-0975; Danilo Eduardo Ugalde Vargas, portador de la ce´dula de identidad 4-0143-0612, en su condicio´n de apoderado especial judicial de Eduardo Sancho Gonza´lez, ce´dula de identidad No. 1-0380-0073; Rosa Iris Gamboa Monge, ce´dula de identidad número 3-0120-0928; Magda Lorena Pereira Villalobos, con ce´dula de identidad 4-0105-0076; Alejandro Lo´pez Mc Adam, portador de la ce´dula de identidad número 6-0106-0565; Lupita Chaves Cervantes, ce´dula de identidad 1-0596-0893; Milena Conejo Aguilar, con ce´dula de identidad 1-0624-0446; Francisco Segura Montero, ce´dula de identidad número 1-0546-0928; Jorge Rojas Vargas, con ce´dula de identidad número 2-0310-0070; A´lvaro Ferna´ndez Silva, ce´dula número 1-0288-0592; Luis Fernando Solano Carrera, ce´dula de identidad 1-0455-0325; Alfredo Jones Leo´n, ce´dula de identidad número 1-0467-0555; Rodrigo Montenegro Trejos, portador de la ce´dula de identidad número 4-0075-0723; Alfonso Chaves Rami´rez, ce´dula de identidad 1-0357-0392; Anabelle Leo´n Feoli, ce´dula de identidad 1-0466-0883; Ana Virginia Calzada Miranda, con ce´dula de identidad número 1-0434-0791; Eva Mari´a Camacho Vargas, con ce´dula de identidad 4-0113-0745; Rafael A´ngel Sanabria Rojas, ce´dula de identidad número 3-0249-0099; Mario Alberto Houed Vega, portador de la ce´dula de identidad 1-0376-0780; Rolando Vega Robert, ce´dula de identidad número 1-0503-0990; Adria´n Vargas Benavides, con ce´dula de identidad 4-0105-0889 y Óscar Luis Fonseca Montoya, portador de ce´dula de identidad 4-0080-0442; para que se declare la inconstitucionalidad de la Ley Nu´mero 9544 denominada “Reforma del Re´gimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orga´nica del Poder Judicial de 5 de mayo de 1993, y sus Reformas” in Toto y, en específico, contra los arti´culos 224, 224 Bis, 226, 227, 236, 236 Bis y 239 y el Transitorio VI de la Ley Orga´nica del Poder Judicial, reformados mediante Ley No. 9544 de 24 de abril de 2018, asi´ como el artículo 208 Bis del Reglamento Interno de la Asamblea Legislativa. Intervienen el Procurador General de la República, el Presidente de la Asamblea Legislativa y el Presidente de la Corte Suprema de Justicia.

Resultando:

1.- Por escrito recibido en la Secretaría de la Sala a las 11 horas 24 minutos del 22 de mayo de 2018, se presenta la acción de inconstitucionalidad número 18-007819-0007-CO suscrita por Mario Alberto Mena Ayales en su condición de Presidente de la Asociación Nacional de Empleados Judiciales, contra la Ley número 9544 in toto. Señala que su representada se encuentra legitimada a partir de lo dispuesto en el párrafo 2 del artículo 75 de la Ley de la Jurisdicción Constitucional, ello por cuanto actúa en defensa de los intereses corporativos y colectivos de sus miembros o asociados al considerar que las normas impugnadas, restringen abusivamente el régimen de pensiones de los servidores judiciales, lo que considera que lesiona gravemente los intereses de sus asociados en materia de pensiones. Como hechos relevantes para la decisión de esta acción de inconstitucionalidad, menciona: a) el texto sustitutivo aprobado en la Comisión de la Asamblea Legislativa el 13 de septiembre de 2016, fue publicado en La Gaceta y consultado oportunamente al Poder Judicial; b) ese texto sustitutivo no fue el que se aprobó en primer debate por el Plenario Legislativo el 30 de octubre de 2017 publicado en el Alcance No. 268 a la Gaceta Digital No. 212 de 9 de noviembre de 2017, ya que el que finalmente se aprobó en primer debate fue un texto sustitutivo introducido por moción vía artículo 137 del Reglamento de la Asamblea Legislativa; c) el texto finalmente aprobado por el Plenario Legislativo fue publicado cuando ya se había aprobado el proyecto en primer debate e inclusive varios diputados habían formulado la respectiva consulta legislativa ante la Sala; d) este último texto no fue consultado a la Corte Suprema de Justicia según el artículo 167 Constitucional porque contenía normas que se referían a la organización y funcionamiento del Poder Judicial. Señala que existen violaciones constitucionales de procedimiento en la Ley impugnada: 1) aduce que en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 de la Consulta Legislativa Facultativa de Constitucionalidad del proyecto “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo No. 19922, la Sala sostiene que cuando la Constitución se refiere a la organización y funcionamiento del Poder Judicial, sólo produce una afectación de la función jurisdiccional, y no de la propiamente administrativa (ver votos 1998-005958, 2001-013273 y 2008-005179). 2) El voto de mayoría citado (2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018), concluyó que la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia en los términos dispuestos en el artículo 167 de la Constitución Política. 3) Considera que esta interpretación es jurídicamente errónea en relación con los alcances del artículo 167 de la Constitución Política y señala que, en ninguna de las sentencias citadas, se deduce lo que sostiene la mayoría de la Sala. Agrega que en el Voto 5958-1998 se desarrolla el término “funcionamiento” dejando por fuera el contenido del término “organización” del Poder Judicial. 4) Argumenta que la sentencia 2001-013273 que se refiere al proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa, por lo que la Sala tampoco desarrolló ahí este último tema por resultar innecesario, pero en cuanto modificaba aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo por unanimidad que al modificarse el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar, implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial y a pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia, sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que la Sala estimó que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial. 5) La tercera sentencia número 5179-2008 de las 11 horas del 4 de abril de 2008 sí establece que lo relativo a la organización administrativa del Poder Judicial está incluida dentro de la consulta obligatoria que estipula el artículo 167 de la Constitución Política. 6) En ese sentido, agrega que, al referirse a los términos de “organización o funcionamiento”, la Sala dijo “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…”. 7) Sintetiza señalando que la propia jurisprudencia de la Sala ha considerado que lo relativo a la organización administrativa del Poder Judicial y no sólo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167 de la Constitución Política. Añade que la afectación o modificación de la organización administrativa del Poder Judicial, en general, y no sólo lo relativo a los órganos jurisdiccionales o judiciales en sentido estricto, también tiene efectos directos en el servicio de administración de justicia que presta y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios encargados de impartir justicia. 8) En la sentencia 3063-1995 la Sala conoció unas acciones de inconstitucionalidad acumuladas contra la Ley Marco de Pensiones en la que se afirmó que no era necesario consultar al Poder Judicial porque ese proyecto de ley no afectaba a los funcionarios judiciales. 9) En la sentencia 4258-2002 en la que se conocieron acciones de inconstitucionalidad en contra del artículo 4 de la Ley número 7605 de 2 de mayo de 1996 en cuanto reforma los artículos 224, 226 y 236 incisos 1) y 2) de la Ley Orgánica del Poder Judicial que es Ley número 7333 de 5 de mayo de 1993; y por conexidad y consecuencia el artículo 33 inciso a) del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, señala que la Sala desechó la alegada violación al artículo 167 de la Constitución Política porque la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho sobre el particular en la sentencia 3063-1995 citada, que se había referido al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. 10) Concluye indicando que las sentencias precitadas no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la organización y funcionamiento del Poder Judicial; temas que indica, no estaban involucrados en las acciones conocidas en las sentencias citadas. Manifiesta que los artículos 9 y 154 de la Constitución Política, garantizan la independencia funcional del Poder Judicial, la que implica la potestad de ese Poder de darse su propia organización con el fin de evitar la intromisión de intereses políticos en el ejercicio de su función. Agrega que el artículo 167 de la Constitución tutela la independencia organizativa, tanto administrativa como jurisdiccional y por ello considera que es necesario no confundir ni asimilar la función jurisdiccional en sentido amplio -incluida la función auxiliar en la jurisdiccional-, con la función estrictamente administrativa. Manifiesta que la función jurisdiccional es especial y diferente de la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Señala que es evidente que la función de administrar justicia es muy distinta de la función que ordinariamente ejerce la administración pública, dadas las particularidades y características propias de ambas funciones, a pesar de que los jueces y los auxiliares judiciales sean también funcionarios públicos. Agrega que uno de los elementos esenciales de la función jurisdiccional lo constituye la independencia para ejercerla, la cual se manifiesta en una doble vertiente, tanto desde el ángulo del Poder Judicial en sí mismo considerado, como la del Juez y demás auxiliares de la función jurisdiccional. Recuerda que el elemento diferenciador del acto jurisdiccional y, por ende, de la función jurisdiccional, lo constituye el hecho de que sólo sus resoluciones pasan en autoridad de cosa juzgada material, con lo cual se declara la verdad legal para el caso concreto y esto implica no sólo una gran responsabilidad sino también la necesidad de rodear la función jurisdiccional de una serie de principios y garantías que permitan el adecuado ejercicio de esa función. Añade que esa garantía constitucional no la tiene ningún otro acto estatal, además de que el Poder Judicial es el único órgano autorizado para controlar la validez de los actos de las demás instituciones estatales, por medio de la jurisdicción contencioso-administrativa (control de legalidad) o de la Sala Constitucional (control de constitucionalidad y convencionalidad). Señala que lo anterior implica que los funcionarios judiciales ejercen una función sumamente delicada y tienen una gran responsabilidad, la cual no podría llevarse a cabo si no se garantizare la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Afirma, dentro de este orden de ideas, que no puede existir una auténtica independencia judicial si los salarios y las pensiones de los jueces y auxiliares de justicia no están acordes con sus responsabilidades, más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. Manifiesta que tampoco puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial, responde a criterios de estabilidad, independencia, preparación e idoneidad, como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución, por lo que la disminución del goce jubilatorio representa un desestímulo para el ingreso de personas profesionales valiosas que, atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral. Indica que es claro que se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que, teniendo más cargas en su salario-de 4 veces más que en otros regímenes-recibirían un beneficio menor. Considera importante tomar en cuenta el dictamen negativo de la Corte Plena al contestar la audiencia sobre el texto aprobado en Comisión, indicando que se emitía criterio negativo pues el proyecto incide en la estructura, organización y funcionamiento del Poder Judicial, en cuanto a los siguientes aspectos: a) se afecta la renovación del personal del Poder Judicial porque se contaría con personas funcionarias de edad avanzada que se mantienen laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse; b) se obliga a la población judicial a escoger entre retirarse a descansar o valorar su situación económica, obligándola a buscar nuevas fuentes de ingresos para mantener gastos normales y los propios de la edad; c) hay restricciones legales para las personas jubiladas de optar por otro trabajo y porque es una realidad que después de los 40 años hay limitaciones para la reincorporación laboral; d) se le resta competitividad al Poder Judicial en el mercado laboral con perjuicio para la calidad de la administración de justicia; e) el salario de los puestos es menor por el aporte al régimen de pensiones y jubilaciones que es 4 veces mayor que la contribución de otros regímenes, lo que además dificulta la captación del recurso humano y se afecta el servicio público; f) que se contribuyó en un porcentaje superior a un régimen con la expectativa de contar con una pensión que le permita satisfacer sus necesidades y gozar de un retiro tranquilo y con calidad de vida; g) la imposición de la nueva carga tributaria afecta a grupos de población vulnerable como son los adultos mayores que son parte más débil y que requieren mayor protección por parte del Estado; h) que se impone un impuesto en un momento de la vida en donde la persona está más vulnerable, en el que requiere mayores atenciones médicas, cuidados especiales, a pesar de que durante su vida laboral cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este proyecto de ley, se vería truncado dicho plan de vida; i) se causaría un impacto social importante porque las personas en su retiro pierden una parte importante de sus ingresos pero conservan un estatus de gastos preestablecidos y esto afecta el objetivo de un sistema de pensiones que es que la persona cuente con ingresos suficientes durante la vida posterior a la laboral, máxime cuando continúan teniendo bajo su cuidado y manutención a otras personas adultas mayores o a menores de edad y esto afecta la parte económica pero también la salud. Manifiesta que los funcionarios judiciales no pueden compararse ni mucho menos equipararse con los restantes funcionarios del Estado, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios, dado que unos y otros se encuentran en situaciones de hecho diferentes. Considera que la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de la función jurisdiccional que es muy delicada pues corresponde al Juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Agrega que esa independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función; por ello, en materia de remuneración y jubilación, los servidores del Poder Judicial no pueden equipararse con los del sector público. Agrega que la necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica que la pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo; lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad y, por ende, en la paz social. Manifiesta que la independencia judicial en un Estado Constitucional de Derecho, tiene una proyección institucional frente a los otros Poderes, lo que también implica, necesariamente, la independencia personal y funcional de la figura del Juez, no sólo en relación con esos otros Poderes del Estado, sino incluso, frente a los jerarcas del Poder Judicial, por lo que no existe un Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. Manifiesta que la independencia judicial es una garantía institucional establecida a nivel constitucional, así como también en la Convención Americana de Derechos Humanos que la consagra como un derecho humano en la medida en que garantiza que las personas deben ser juzgadas por un tribunal independiente e imparcial (artículo 8.1 de esa Convención). Aduce que la necesidad de que los tribunales sean independientes e imparciales, le otorga al Poder Judicial una naturaleza particular y específica, distinta al de las otras instituciones del Estado porque le confiere un escudo de protección contra la intromisión del poder político, de lo que no están protegidas aquéllas. Al ser el Poder Judicial el que administra justicia y en vista de que ésta debe ser imparcial y libre de cualquier presión externa, se tiene que la presión económica ya sea por salario o por el monto y condiciones de la jubilación de los jueces y demás auxiliares de justicia, juega un papel trascendental en la consecución de una independencia real y efectiva del Poder Judicial. La Ley impugnada vulnera el artículo 167 de la Constitución Política: considera que esto es así porque contiene una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial y por ello, existía una obligación de consultar el respectivo proyecto a la Corte Suprema de Justicia según lo dispone el artículo 167 constitucional. Señala que el artículo 239 de la ley, crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la que define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le otorga, asignándosele una serie de competencias como elevar el aporte obrero al Fondo de Pensiones, conocer solicitudes de jubilación, con lo que se produce una modificación en la estructura del Poder Judicial. Señala que en ese artículo se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas, siendo que, a la vez, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal-, al Consejo Superior del Poder Judicial (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva y Departamento Financiero Contable). Considera que el artículo 240 se encuentra en igual situación que el 239 porque regula temas relativos a la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para ser miembro de esa Junta, entre otros. Argumenta que a la Corte Plena se le impone la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administrativa, fijándole así una competencia que actualmente no tiene. Señala que la Asamblea Legislativa estaba obligada a consultar el proyecto al Poder Judicial, de conformidad con lo estipulado en el artículo 167 de la Constitución Política, dado que esa normativa modifica la organización administrativa del Poder Judicial con la creación de un nuevo órgano administrativo y la supresión de competencias del Consejo Superior (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva y Departamento Financiero Contable) en favor de ese órgano de nueva creación, que afecta la independencia de ese Poder de la República. Señala que debe recordarse que lo aprobado en primer debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance No. 268 a la Gaceta Digital No. 212 del 9 de noviembre de 2017, fue un texto sustitutivo, introducido por moción vía artículo 137 del Reglamento de la Asamblea Legislativa; texto éste último que no fue consultado a la Corte Suprema de Justicia conforme correspondía. Reitera que, el vicio detectado en el procedimiento legislativo de aprobación de la ley impugnada, por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en primer debate, se debe declarar inconstitucional, dado que esa omisión procedimental violó lo establecido en el artículo 167 de la Constitución Política por cuanto esa ley afecta la organización administrativa del Poder Judicial debido a la creación de un nuevo órgano administrativo dentro de su estructura, otorgándole competencias sustanciales en materia de pensiones y jubilaciones, además de que suprime competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva y Departamento Financiero Contable). Añade que el vicio de falta de consulta a la Corte Plena del texto introducido en primer debate, no podría haberse subsanado en segundo debate aunque el proyecto hubiera sido aprobado por una mayoría calificada dado que, tal convalidación, solo hubiera operado si se hubiera tratado de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico vertido por el órgano judicial. Indica que, en este caso, la situación es diversa pues se trató de la aprobación en primer debate de un texto inconsulto, en contravención con lo dispuesto en el artículo 167 de la Constitución Política; en consecuencia, ese vicio procedimental resulta insalvable e insubsanable. Argumenta que si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber manifestado la Corte Plena disconformidad con ese texto según la resolución tomada en la sesión No. 27 del 7 de agosto de 2017, Artículo XXX, se hacía obligatoria una votación calificada por el Pleno, al tenor de lo establecido en el artículo 167 de la Constitución Política, lo que tampoco se hizo. Señala que ese vicio también invalida la ley impugnada por un vicio procedimental dado que la ley impugnada fue aprobada por 31 votos cuando requería al menos 38. La inconstitucionalidad de la ley impugnada por publicación tardía del texto sustitutivo aprobado en primer debate: señala que el inciso h del punto 2 “Mociones de Fondo” del procedimiento seguido en la aprobación de la ley impugnada, establecía que la publicación de los textos sustitutivos era obligatoria, lo cual se desprende, que a la letra dice: “h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto…”. Señala que las reglas que acordó el Plenario Legislativo para la tramitación por un procedimiento especial del proyecto de ley impugnado, vía artículo 208 bis del Reglamento Legislativo, resultan de obligado y estricto cumplimiento, dado que se trata de un procedimiento mucho más restrictivo que el ordinario, donde, de modo particular, deben respetarse los principios democrático y de publicidad. Añade que la falta de publicación es un vicio esencial per se, por lo que el hecho de que un texto sustitutivo sea publicado luego de su aprobación en primer debate, no tiene la virtud de subsanar el vicio apuntado. Manifiesta que esto ha sido sostenido por la jurisprudencia de la Sala al analizarse el proyecto denominado “Ley de Solidaridad Tributaria” que se tramitó en el expediente legislativo No. 18261, siendo que en sentencia número 2012-004621 de las 16 horas del 10 de abril de 2012 en lo que interesa, se dijo que “…de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original”. Añade que el texto sustitutivo aprobado en primer debate por el Plenario Legislativo el 30 de octubre de 2017 fue publicado en el Alcance 268 a la Gaceta Digital No. 212 del 9 de noviembre de 2017, en tanto que la consulta legislativa fue planteada el 1 de noviembre de 2017. Agrega que, en otros términos, no sólo ese texto fue publicado en forma extemporánea, luego de ser aprobado en primer debate, sino que al momento de la presentación de la consulta legislativa ante la Sala no había sido publicado, con lo cual se produjo, también, otra violación al principio de publicidad y, por ende, a un trámite esencial del procedimiento legislativo. Agrega que la publicación del texto sustitutivo del proyecto de ley debió haberse realizado antes de su aprobación en primer debate ya que, al haberse hecho con posterioridad, se violó el principio democrático al impedir a la ciudadanía conocer el texto sustitutivo del proyecto de previo a su aprobación. Indica que, en consecuencia, la publicación tardía surte los mismos efectos que la falta de publicación sobre el procedimiento legislativo, dado que la finalidad de aquella es que la población conozca, de previo a su aprobación, el texto final del proyecto de ley, de manera que pueda fiscalizar debidamente la labor parlamentaria; derecho de la ciudadanía que se hizo nugatorio en el caso de la tramitación de la norma impugnada, lo que implica que ésta fue aprobada con un vicio esencial en el procedimiento legislativo, el cual no puede ser convalidado por la publicación posterior del texto aprobado en primer debate. Añade que, en consecuencia, al no haberse observado, de forma estricta, el procedimiento especial establecido vía artículo 208 bis del Reglamento de la Asamblea Legislativa en la tramitación de la ley impugnada, por haberse publicado el texto sustitutivo luego de su aprobación en primer debate y luego de que varios diputados formularon la respectiva consulta legislativa, se violaron groseramente los principios democrático y de publicidad, sin que la publicación tardía del texto final aprobado, tuviera la virtud jurídica de convalidar el procedimiento espurio mediante el cual se aprobó la ley impugnada. Finaliza solicitando que se declare que la ley número 9544 es inconstitucional por violación del artículo 167 de la Constitución Política, del principio democrático y del principio de publicidad de la ley.

2.- Los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, señalaron que en vista de que en esta acción de inconstitucionalidad se impugna la Ley No. 9544 de 24 de abril de 2018 “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial contenido en la Ley No. 7333 Ley Orgánica del Poder Judicial de 5 de mayo de 1993 y sus reformas, consideran que les asiste motivo para separarse del conocimiento de este asunto habida cuenta de que lo que se resuelva, les atañe de forma directa y por ello remitieron los autos a la Presidencia a.i. de la Sala, para que se resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

3.- El Magistrado suplente José Paulino Hernández Gutiérrez. presenta documento en el que se separa de conocer este asunto indicando que, en ese momento, se desempeñaba en propiedad como Juez del Tribunal Contencioso Administrativo, así como también por cuanto es Magistrado Suplente de la Sala Constitucional, considerando que lo que se decida en este caso concreto, podría tener incidencia en la expectativa que tiene como Juez de acogerse a su pensión futura bajo el régimen de pensiones del Poder Judicial. Con sustento en estas razones, decide apartarse de intervenir en el conocimiento y resolución de esta acción de inconstitucionalidad.

4.- La Magistrada suplente Marta Esquivel Rodríguez presenta escrito en el que indica que se separa de conocer este asunto por cuanto se desempeña como Jueza Laboral y Magistrada Suplente de la Sala Constitucional, considerando que lo que se decida en este caso concreto, podría tener incidencia en la expectativa que tiene como jueza, de acogerse a su pensión futura bajo el régimen de jubilaciones y pensiones del Poder Judicial, razón por la cual se aparta de intervenir en el conocimiento y resolución de esta acción de inconstitucionalidad.

5.- Vista la razón de los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y el Magistrado suplente José Paulino Hernández Gutiérrez así como la magistrada suplente Marta Esquivel Rodríguez, referente al motivo por el que estiman se les debe inhibir de conocer este proceso, mediante resolución de las 10 horas 40 minutos del 5 de junio de 2018, la Presidencia a.í. de la Sala Constitucional dispuso tenerlos por separados del conocimiento del asunto y comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

6.- Mediante oficio agregado al expediente electrónico el 11 de junio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6161 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y el Magistrado suplente José Paulino Hernández Gutiérrez así como la Magistrada suplente Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez y Ana María Picado Brenes.

7.- El Magistrado suplente Alejandro Delgado Faith presenta documento el 12 de junio de 2018 mediante el cual manifiesta que, en vista de que su socio, el Dr. Rube´n Herna´ndez Valle, es el abogado director de esta acción de inconstitucionalidad, decide presentar gestión de inhibitoria por lo que solicita que se le separe del conocimiento del expediente, advirtiendo que hace esa petición a pesar de no haber participado, ni directa ni indirectamente, en la preparacio´n y/o discusio´n de la accio´n, así como también afirmando no tener relacio´n alguna con las partes o intere´s directo en el fondo del asunto. Argumenta que plantea su solicitud de separarse del conocimiento de este expediente en respeto a las partes y a los principios de la correcta Administracio´n de Justicia y la transparencia.

8.- Mediante documento agregado a este expediente el 13 de junio de 2018, se apersona la Magistrada suplente Ana María Picado Brenes para manifestar que debe inhibirse de conocer este asunto debido a que es beneficiaria del régimen de jubilaciones y pensiones del Poder Judicial desde julio de 2016 cuando se acogió a su jubilación, señalando que por ello tiene interés directo en lo que se resuelva en esta acción de inconstitucionalidad. Argumenta que las variaciones contempladas en la ley que se impugna respecto al régimen anterior con el que ella se pensionó, le perjudican a nivel personal y familiar pues tiene una hija menor de edad y un joven autista, quienes dependen de su persona, con lo cual la disminución del monto real de la jubilación, va en detrimento de su hogar. Argumenta que tomó la decisión de acogerse a la jubilación no sólo por cumplir con los requisitos establecidos en el régimen vigente, sino también porque le convenían los términos en que se aprobó dicha jubilación; es decir, le convenía el porcentaje aprobado así como el monto en que se fijó su jubilación. Manifiesta que, no obstante lo anterior, tanto el aumento de la cuota mensual que le correspondería pagar al Fondo de Jubilaciones como el Impuesto Solidario que regulan la ley actual, le perjudican seriamente porque van en detrimento del monto mensual que percibe por concepto de jubilación. Considera que por tales razones es procedente su inhibitoria, por lo que remite los autos a la Presidencia a.í. de la Sala para que se resuelva sobre el motivo invocado para su separación, en concordancia con lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

9.- En oficio presentado en la Secretaría de la Sala el 13 de junio de 2018 se apersona la Magistrada suplente Alicia Salas Torres para señalar que en aras de los principios de transparencia y probidad que deben regir la función de los jueces así como al principio de imparcialidad que es el fundamento de la función jurisdiccional, considera que le asiste la obligación de presentar su inhibitoria del conocimiento de esta acción de acuerdo con lo dispuesto en los artículos 6 de la Ley de la Jurisdicción Constitucional, 31 de la Ley Orgánica del Poder Judicial, 49 y 51 del Código Procesal Civil, por existir un interés directo -en su caso-, en lo que se resuelva en esta acción. Indica que es funcionaria jubilada del Poder Judicial y actualmente magistrada suplente, siendo que su situación y su derecho adquirido se encuentra regulado directamente en el articulado sobre jubilaciones de la Ley Orgánica del Poder Judicial y su reforma, que está siendo impugnado en esta acción. Agrega que además depende económicamente en forma absoluta del Fondo de Pensiones y Jubilaciones por lo que lo que se resuelva en esta acción, le puede afectar directamente ya que la normativa accionada es la que regula su jubilación y cualquier cambio que se diera, le puede afectar. En razón de lo anterior, solicita que se remitan los autos a la Presidencia de la Sala para que se resuelva sobre el motivo invocado para su separación, en concordancia con lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

10.- Mediante escrito presentado en este expediente el 14 de junio de 2018, se apersona Mauricio Chacón Jiménez en su condición de Magistrado suplente para señalar que, por ser funcionario judicial con más de 27 años de carrera en condición de Juez, se ve obligado a presentar su inhibitoria para participar en la admisión, discusión y decisión de esa acción de inconstitucionalidad pues lo que se llegue a decidir repercute directamente sobre sus expectativas jubilatorias. Indica que, en aplicación de lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional, solicita al Presidente de la Sala que se disponga lo que estime procedente.

11.- Se apersona Jorge Araya García en su condición de Magistrado suplente de la Sala Constitucional mediante documento presentado el 14 de junio de 2018, para indicar que, de conformidad con el artículo 6 de la Ley de la Jurisdicción Constitucional, presenta formalmente inhibitoria para integrar el Tribunal que conocerá esta acción de inconstitucionalidad. Señala que ha ocupado el cargo de Magistrado suplente de esta Sala desde diciembre de 2005, siendo que desde esa fecha y hasta enero del 2012, le correspondió integrar el tribunal por períodos de tiempo extensos, cotizando y, en consecuencia, contribuyendo a la formación del Fondo de Jubilaciones y Pensiones del Poder Judicial. Añade que, en su condición de Magistrado suplente y por no ser funcionario judicial regular en ese momento, la única opción real de jubilarse a esa fecha, sería por el régimen de pensiones y jubilaciones de la Caja Costarricense de Seguro Social; sin embargo, no tendría derecho a que se le devuelva el monto de las cuotas con las que ha contribuido a la formación del Fondo de Jubilaciones y Pensiones del Poder Judicial desde diciembre de 2005. Advierte que la Ley No. 9544 que se está impugnando en esta acción, contiene una disposición normativa, expresa y puntual -artículo 234- que a todas luces le beneficia, generando un interés directo ya que le permitiría trasladar sus cuotas del Fondo de Jubilaciones y Pensiones del Poder Judicial a la Caja Costarricense de Seguro Social, con la finalidad de que esas cuotas se le computen dentro del Régimen de Invalidez, Vejez y Muerte, para el mismo propósito de cómputo de cuotas y tener, de esa manera, una expectativa de jubilación más digna. Concluye solicitando a la Presidencia de la Sala Constitucional a.í., que se le tenga por inhibido de conocer esta acción de inconstitucionalidad debido a las razones indicadas y dentro del marco de una total transparencia ética; valores esenciales que deben acompañar la actuación de todo juez constitucional.

12.- En documento presentado el 15 de junio de 2018, se apersona Hubert Fernández Argüello en su condición de Magistrado suplente para señalar que estima que le asiste motivo de inhibitoria dentro de esta acción de inconstitucionalidad por cuanto es cotizante del Fondo de Jubilaciones y Pensiones del Poder Judicial desde 1990. Manifiesta que, en esa condición, lo que se decida en este asunto, podría incidir en sus derechos e intereses como parte de ese régimen jubilatorio, lo que en su criterio encuadra en el supuesto del inciso 1) del artículo 49 del Código Procesal Civil.

13.- Se apersona Rónald Salazar Murillo en su condición de Magistrado suplente de la Sala Constitucional, mediante documento aportado el 28 de junio de 2018, para señalar que actualmente se encuentra jubilado por el Régimen de Jubilaciones y Pensiones del Poder Judicial y que, por esa razón, debe inhibirse del conocimiento de este proceso debido a que le afecta de manera directa, solicitando que así se declare y se llame a integrar a quien corresponda.

14.- En resolución de la Presidencia a.í. de la Sala Constitucional de las 8 horas 50 minutos del 29 de junio de 2018, y vista la razón de los Magistrados y Magistradas suplentes Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez y Ana María Picado Brenes, se dispuso tenerlos por separados del conocimiento de este proceso y comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución, según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

15.- Mediante oficio agregado al expediente electrónico el 03 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6233 efectuado para la sustitución de los Magistrados y Magistradas Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez, Alejandro Delgado Faith y Ana María Picado Brenes por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que la Sala originalmente había pedido 7 suplentes y únicamente hay 3 disponibles, por lo que el sorteo se realizó con los suplentes que hay disponibles, resultando seleccionadas las Magistradas suplentes: Ileana Isabel Sánchez Navarro, María Lucila Monge Pizarro y Anamari Garro Vargas.

16.- Mediante oficio presentado el 4 de julio de 2018 se apersona la Magistrada suplente Lucila Monge Pizarro para manifestar que, en ese momento, se desempeñaba en propiedad como Jueza 5 en el Tribunal de Apelación de Sentencia Penal de Guanacaste y como Magistrada Suplente de la Sala Constitucional, de modo tal que lo que se decida en este caso concreto, podría tener incidencia en la expectativa de una eventual jubilación y por ello estima que le asiste motivo para separarse del conocimiento de este asunto a fin de resguardar la garantía de imparcialidad del juzgador. Pide que se remitan los autos a la Presidencia a.i. de la Sala para que se resuelva sobre el motivo invocado para su separación, en concordancia con lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

17.- El 4 de julio de 2018 se apersona la Magistrada suplente Ileana Sánchez para manifestar que se desempeña como Jueza 4 del Tribunal Contencioso Administrativo, así como también que es cotizante activa, por 20 años, del Régimen de Pensiones del Poder Judicial, indicando que, por estarse impugnando ese régimen, podría resultar afectada al no contar, a la fecha, con un derecho declarado a su favor respecto de aquél. Considera necesario inhibirse del conocimiento de esta acción por tener un interés directo en lo que se resuelva, pidiendo que pasen los autos a la Presidencia a.i. de la Sala para que se resuelva lo correspondiente.

18.- El 9 de julio de 2018 se apersona la Magistrada suplente Anamari Garro Vargas para solicitar que se le tenga por inhibida para conocer esta acción de inconstitucionalidad por cuanto su hermano es Juez Superior de Trabajo y por tanto cotizante para el Régimen del Poder Judicial, así como también su tía materna, la señora María Eugenia Vargas Solera, es pensionada de ese Régimen. Indica que se ve obligada a presentar esta solicitud en razón de que lo que se resuelva en esta acción, afecta directamente a la esfera de ambos parientes a quienes la une un vínculo de consanguinidad en primero y segundo grado, respectivamente. Recuerda que las normas que rigen los motivos de impedimentos para conocer de un asunto en la jurisdicción constitucional, están contempladas, en orden de prelación, en los artículos 4, 6 y 14 de la Ley de la Jurisdicción Constitucional (LJC), artículos 25 y 31 de la Ley Orgánica del Poder Judicial (LOPJ) y artículo 49 del Código de Procedimientos Civiles (CPC). Indica que la Ley de la Jurisdicción Constitucional -artículos 4 y 14-, hacen reenvío a la Ley Orgánica del Poder Judicial siendo que el numeral 31 de ésta, es sólo para cuando falte regla expresa, lo cual ocurre en este asunto pues versa sobre una acción de inconstitucionalidad, debiendo tenerse presente que los motivos de inhibitoria no sólo atienden a las partes procesales sino también al objeto del proceso; en este caso, señala que, los efectos de la declaratoria de inconstitucionalidad de las normas impugnadas, o bien, el rechazo de la acción, tendrían una incidencia directísima en la esfera de cada uno de los parientes mencionados. Añade que, por su parte, lo dispuesto en el artículo 14 de la Ley de la Jurisdicción Constitucional, hace un nuevo reenvío al CPC y a los principios generales del derecho. Añade que, por disposición de la LJC, la LOPL y el CPC, existen motivos de impedimento que, en su criterio, le aplican como sería el artículo 49 incisos 2 y 6 del CPC: el primer inciso habla de hermanos y tíos (as) carnales y; el segundo se refiere a cualquiera de los ascendientes consanguíneos por lo que ahí, incluye a su tía materna. Argumenta que, el fundamento para resolver esta solicitud de inhibitoria, es la existencia de un interés directo, de sus inmediatos parientes, en el caso y en los puntos concretos objeto de estudio de esta acción de inconstitucionalidad; es decir, no es el interés directo del Magistrado (a) que hace la solicitud, sino el interés directo de sus inmediatos parientes y afirma que esta posición se ha acogido cuando los intereses no son de la esfera personal del pariente, sino de la institución en la que labora y cuando el vínculo no era tan cercano (ver resolución de la Sala Constitucional dictada en el expediente No. 17-017148-0007-CO). Afirma que es evidente que tiene claros y patentes motivos de impedimento para conocer de este asunto, establecidos en las leyes y en la jurisprudencia de la Sala, por lo que solicita que se remitan los autos a la Presidencia de la Sala para que se resuelva sobre los motivos alegados y se tenga por acogida esta solicitud de inhibitoria de acuerdo con lo establecido en el artículo 6 de la Ley de la Jurisdicción Constitucional, normativa y jurisprudencia existente en la materia.

19.- En resolución del Presidente de la Sala Constitucional -Magistrado Castillo Víquez- de las 14 horas 40 minutos del 3 de agosto de 2018, se analizó la situación de los Magistrados propietarios y suplentes que fueron separados del conocimiento de esta acción de inconstitucionalidad y, en ese sentido, se recordó que los propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado y los suplentes José Paulino Hernández Gutiérrez y Marta Esquivel Rodríguez, se encontraban separados. También se señaló que por resolución de las 8 horas 50 minutos del 29 de junio de 2018, se tuvo por separados a los suplentes Alicia Salas Torres, Alejandro Delgado Faith, Rónald Salazar Murillo, Hubert Fernández Argüello, Jorge Araya García, Mauricio Chacón Jiménez y Ana María Picado Brenes, señalando además que estaba pendiente de conocerse la inhibitoria de las Magistradas suplentes Ileana Sánchez Navarro, Lucila Monge Pizarro y Anamari Garro Vargas. Indica que ninguno de los 5 Magistrados propietarios nombrados para ese momento, ni 9 de los 12 Magistrados suplentes, pueden conocer las 3 inhibitorias planteadas por ellas. Recuerda que el artículo 29 inciso 2) de la Ley Orgánica del Poder Judicial dispone, en lo que interesa:

“Cuando, por impedimento, recusación, excusa u otro motivo, un servidor tenga que separarse del conocimiento de un asunto determinado, su falta será suplida del modo siguiente:

(…)

2.- Los Magistrados, por los suplentes llamados al efecto. Los miembros de los tribunales colegiados se suplirán unos a otros y, en caso de que a todos o a la mayoría les cubra la causal, por sus suplentes. Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”.

Manifiesta el Presidente de la Sala Constitucional que, en consecuencia y de conformidad con la norma transcrita, por imperio de ley, le corresponde ejercer la Presidencia de la Sala Constitucional para resolver las solicitudes de inhibitorias que constan en el expediente. Recuerda que este Tribunal tiene un doble papel de contralor de la constitucionalidad de las normas de cualquier naturaleza y de los actos sujetos al Derecho Público (artículo 10 de la Constitución Política), esto es, de garante del principio de la supremacía constitucional y de juzgador de las infracciones a los Derechos Fundamentales establecidos en la Constitución y los instrumentos internacionales (artículo 48 ibídem), para velar por su eficacia directa e inmediata, siendo que, para el logro de esos fines, la Sala resuelve y conoce de los asuntos interpuestos en una sola instancia y con competencia para todo el territorio nacional, por tratarse del único Tribunal especializado en la materia (artículo 11, párrafo 2 de la Ley de la Jurisdicción Constitucional). Agrega que la jurisdicción constitucional, a diferencia de la jurisdicción ordinaria o común, debe regirse por sus propias y particulares normas para evitar que cualquier recurrente o autoridad recurrida pueda separar a los Magistrados del conocimiento de un asunto concreto y determinado, en contra de los principios generales del Derecho de la irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural. Agrega que el artículo 4, párrafo 2 de la Ley de la Jurisdicción Constitucional dispone que el régimen orgánico de este Tribunal es el establecido en ese cuerpo legislativo y la Ley Orgánica del Poder Judicial; texto normativo que en su artículo 31 reconoce la peculiaridad de la Jurisdicción Constitucional al estatuir que en materia de impedimentos, excusas y recusaciones “(…) se regirá por sus propias normas y principios”. Añade que uno de los principios del Derecho Procesal Constitucional (artículo 14 de la Ley de la Jurisdicción Constitucional) lo constituye el del juez natural (artículo 35 de la Constitución Política), de acuerdo con el cual, nadie puede ser juzgado por un tribunal ad hoc o especialmente nombrado para el caso “(…) sino exclusivamente por los tribunales establecidos de acuerdo con esta Constitución”. Señala que el juez constitucional no puede ser considerado como un simple funcionario público o un juez de la legalidad ordinaria y en su rol primordial de contralor de la constitucionalidad de las normas del ordenamiento jurídico, el juez constitucional se ve, diariamente, confrontado a resolver situaciones donde una interpretación inconvenientemente amplia de la noción de interés directo como sería, por ejemplo, la materia tributaria, la de seguridad social o la electoral, para mencionar solo algunas de estas, lo obligaría a separarse de conocer de asuntos consustanciales a su función y no por esto debe inhibirse o ser recusado en cada una de estas materias ya que, se desvirtuaría su labor como juez supremo de la Constitución Política. Argumenta que el régimen de excusas, inhibitorias y recusaciones de los Magistrados de la Sala Constitucional es un régimen excepcionalísimo y, por consiguiente, no le son aplicables las simples recusaciones, inhibitorias y excusas regulados en la legislación procesal ordinaria. Manifiesta que las declaraciones hechas por las Magistradas suplentes Sánchez Navarro y Monge Pizarro como cotizantes activos de dicho Fondo, ponen de manifiesto el interés directo que ostentan en la resolución de este proceso; por su parte, la Magistrada Garro Vargas sostuvo que su hermano es cotizante del régimen del Poder Judicial por lo que, lo que se resuelva afecta de manera personal a su pariente directo. Sostiene que, precisamente ese interés directo en el punto sometido a su conocimiento, obliga a la Presidencia de la Sala Constitucional, en los términos expuestos y como causal muy restrictiva, a tener por separados del conocimiento de este proceso a las Magistradas suplentes Ileana Sánchez Navarro, Lucila Monge Pizarro y Anamari Garro Vargas. Añade que, en este caso, a la totalidad de los Magistrados titulares y suplentes designados para ejercer las competencias de esta Sala, les asiste causal de inhibitoria, lo cual daría como resultado la imposibilidad de integrar una Sala con 7 Magistrados para su resolución; no obstante, la Sala está obligada constitucionalmente a resolver los asuntos sometidos a su conocimiento sin que circunstancias como las que ahora se presentan -falta de los Magistrados titulares y suplentes necesarios para integrar Sala- enerve esa obligación o releve a este Tribunal de su cumplimiento. Señala que la Sala, en anteriores oportunidades, se ha visto confrontada a situaciones similares en las cuales ha dispuesto, en lo que interesa, lo siguiente:

“De modo que se deberá integrar el ordenamiento jurídico para extraer la regla que sirva para que esta Sala se integre con los miembros necesarios para dar solución a los asuntos a su cargo. La clave se encuentra establecida en el artículo 14 de la Ley de la Jurisdicción Constitucional (…). Esta norma permite a la Sala integrar el ordenamiento jurídico con los principios del Derecho Constitucional, del Derecho Público, del Derecho Procesal y, aún, del Derecho Internacional o Comunitario, a fin de resolver lagunas legales como la que ahora se presenta. Para esa integración se debe tener presente, además, la naturaleza especial y particular de la jurisdicción constitucional a la que solo se le pueden aplicar los principios y normas del derecho común que no sean incompatibles con esa naturaleza. Además, ya en otras ocasiones esta Sala ha aplicado el referido artículo a fin de integrar las normas que la regulan, en particular, sobre la aceptación de inhibitorias de los Magistrados propietarios y su habilitación para conocer de un determinado asunto. Así, en la resolución de las quince horas treinta minutos del diecisiete de mayo de mil novecientos noventa y uno, dictada en el expediente número 91-000778-0007-CO, aplicó el citado artículo 14 de la Ley de la Jurisdicción Constitucional y dispuso que: “…nos encontramos ante una norma formulada por un texto de valor constitucional, pero a la que le faltan las reglas que posibilitan su puesta en práctica, en cuyo supuesto para que la norma no sea letra muerta, el Juez debe elaborar las reglas necesarias para ello, que en esta ocasión se trata más bien de reglas constructivas que de normas objetivas. El Juez debe hacer desaparecer los “ángulos muertos del control jurisdiccional y asegurar una aplicación plena de la norma jurídica”. Lo cual es una clara referencia al insoslayable deber de esta Sala de conocer los asuntos puestos bajo su control. Asimismo, el artículo 29 inciso 2) de la Ley Orgánica del Poder Judicial prevé una solución cuando una causal de inhibitoria cubre tanto a Magistrados propietarios como suplentes, situación que imposibilitaría resolver el caso. Según la regla allí establecida, corresponde a los Magistrados propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria alguna por ello. Ello constituye, entonces, una causa de justificación normativa que libera de toda responsabilidad, incluida la penal, a los Magistrados propietarios que conozcan de un asunto en el cual todos los suplentes, o al menos los necesarios para integrar Sala, tengan alguna causal de inhibitoria o impedimento para conocer de ese mismo asunto, lo cual resulta lógico y necesario, pues, de lo contrario, existiría una imposibilidad material para que la Sala resuelva el caso en cuestión. Se produce, por ende, un estado de necesidad que hace imposible la aplicación de lo preceptuado en el artículo 6 de la Ley de la Jurisdicción Constitucional con respecto a la sustitución de los Magistrados propietarios a quienes les asiste una causal de inhibitoria, recusación o impedimento, con lo cual el interés particular debe ceder ante el interés público en aras de la existencia de la jurisdicción constitucional. En consecuencia, en este caso no es posible aceptar la inhibitoria planteada por los Magistrados propietarios de esta Sala, en razón de que ello implicaría colocar a este Tribunal en imposibilidad material de resolverlo y, por ello, lo procedente es denegar la inhibitoria planteada por los Magistrados propietarios que se dirán y habilitar a los que resulten necesarios para conformar Sala a fin de poder conocer este asunto” (ver resolución de las 13 horas 58 minutos del 9 de enero de 2013 dictada en el expediente No. 12-006848-0007-CO; en el mismo sentido, entre otras, resolución de las 9 horas 04 minutos del 16 de agosto de 2013 dictada en el expediente No. 12-011335-0007-CO; resolución de las 15 horas 57 minutos del 29 de enero de 2016 emitida en el expediente No. 16-000620-0007-CO; resolución de las 8 horas 42 minutos del 7 de septiembre de 2017 dictada en el expediente No. 17-006076-0007-CO y resolución de las 10 horas 40 minutos del 27 de febrero de 2018 emitida en el expediente No. 17-017148-0007-CO).

Argumenta que, según lo dispuesto en la resolución transcrita, en el artículo 14 de la Ley de la Jurisdicción Constitucional y el 29 inciso 2) de la Ley Orgánica del Poder Judicial, corresponde a los Magistrados propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Manifiesta que lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los Magistrados que conozcan de un asunto en el cual los Magistrados suplentes que son necesarios para integrar el Tribunal, tengan alguna causa de inhibitoria o impedimento para conocer del mismo asunto. Concluye señalando que en virtud de las consideraciones hechas y en aplicación de los principios generales del Derecho de la irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural, lo procedente es habilitar, por imperio de ley, a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, a la Magistrada Nancy Hernández López y a los Magistrados suplentes José Paulino Hernández Gutiérrez y Marta Eugenia Esquivel Rodríguez para el conocimiento de este proceso. Finaliza teniendo por separadas del conocimiento de este proceso a las Magistradas suplentes Ileana Sánchez Navarro, Lucila Monge Pizarro y Anamari Garro Vargas, disponiéndose continuar con la tramitación del expediente.

20.- El 6 de noviembre de 2018 el Magistrado Jorge Araya García presenta formal inhibitoria para conocer de esta acción de inconstitucionalidad indicando que desde diciembre del 2005 y hasta el 31 de octubre de 2018, ocupó el cargo de Magistrado suplente de la Sala Constitucional, desempeñándose ahí en numerosas ocasiones incluso por períodos extensos, por lo cual estuvo cotizando y contribuyendo a la formación del Fondo de Jubilaciones y Pensiones del Poder Judicial. Agrega un elemento adicional para considerar que le asiste un nuevo motivo de inhibitoria y es que el 31 de octubre del 2018 fue formalmente electo por la Asamblea Legislativa de Costa Rica como Magistrado Propietario de la Sala Constitucional; cargo que aceptó y juró el 1 de noviembre de 2018, por lo que en virtud de las previsiones de la Ley Orgánica del Poder Judicial, tiene la obligación de cotizar desde entonces para el referido régimen de pensiones y jubilaciones, no así para el régimen que administra la Caja Costarricense de Seguro Social que era para el cual cotizaba cuando no ejercía el cargo de Magistrado suplente y se encontraba en condición de trabajador independiente. Manifiesta que ante la cantidad de cuotas cubiertas en el régimen administrado por la seguridad social, la opción real de jubilación que tendría a futuro es a través de dicho régimen y por medio del régimen del Poder Judicial toda vez que, de conformidad con el primer párrafo del artículo 234 de la Ley Orgánica del Poder Judicial, existe una alta posibilidad de que llegado el momento de la jubilación, adolezca de los requisitos establecidos y carezca de la posibilidad de acceder a la jubilación bajo el Régimen de Jubilaciones y Pensiones del Poder Judicial; por el contrario, estaría ante un perjuicio patrimonial al impedírsele acceder a las cuotas cotizadas a este último régimen, o ante la altísima onerosidad que significaría su habilitación, a la cual, ciertamente, no se encuentra obligado. Añade que, sin embargo, el segundo párrafo del mismo artículo 234, sí establece la posibilidad de que ante un retiro sin que se haya cumplido aún las condiciones de la jubilación para dicho régimen, se trasladen las cuotas cotizadas al régimen de la Caja Costarricense de Seguro Social, lo cual se haría mediante una liquidación actuarial. Manifiesta que, en ese sentido, esa norma contiene una previsión que le resulta favorable y en la que tiene un evidente interés directo, además de que se trata de un elemento diferenciador a la condición de los demás Magistrados propietarios de la Sala pues la norma de referencia le permitiría, al momento de una futura jubilación, trasladar sus cuotas del Régimen de Jubilaciones y Pensiones del Poder Judicial al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. Indica que, de tal manera, siendo que el Título IX de la Ley Orgánica del Poder Judicial se encuentra cuestionado mediante esta acción de inconstitucionalidad, tanto por razones de fondo como de forma, y que la norma de cita contiene una disposición que le beneficia, estima que le asiste motivo para separarse del conocimiento de esta acción toda vez que, lo que finalmente se resuelva, incide de manera directa en sus intereses y derechos. Argumenta que, por tal razón, solicita a la Presidencia de la Sala, declarar que se encuentra inhibido para el conocimiento de esta acción de inconstitucionalidad.

21.- En resolución del Presidente de la Sala Constitucional de las 15 horas 05 minutos del 6 de noviembre de 2018, se conoció la nueva solicitud de inhibitoria formulada por el Magistrado Jorge Araya García toda vez que, a partir del 1 de noviembre de 2018, asumió el cargo como Magistrado propietario de la Sala y ello originó que presentara esa nueva gestión. Sobre el particular, se señala que resulta de plena aplicación lo dispuesto en la resolución de las 14 horas 40 minutos del 3 de agosto de 2018 dictada en este expediente, por la cual se habilitó a los otros magistrados propietarios de la Sala:

“Según lo dispuesto en la resolución transcrita, así como lo establecido en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial -supra Considerandos I y III-, corresponde a los Magistrados Propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los Magistrados que conozcan de un asunto en el cual los Magistrados Suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto”.

Se dispuso que en virtud de lo anterior y en aplicación de los principios generales del Derecho de la Irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural, lo procedente es rechazar la gestión de inhibitoria del Magistrado Araya García en este momento. Aduce que el interés manifiesto en este asunto, desde su primera gestión de inhibitoria o cualquier otra causal, son irrelevantes desde el momento que, por imperativo de ley -numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial-, está en la obligación de conocer esta acción. Se agrega que no es posible admitir que causales “sobrevinientes”, vengan a enervar dicha integración pues aceptarlas, en este caso particular, llevaría al extremo de no poder conformar un Tribunal y que la Sala no cumpla las competencias que, constitucionalmente, le han sido asignadas; en consecuencia, lo procedente es declararlo habilitado para el conocimiento de este asunto, por lo que se le rechaza la gestión planteada al Magistrado Araya García y se ordena continuar con la tramitación del expediente.

22.- Mediante escrito presentado el 12 de febrero de 2019 se apersona Fernando Cruz Castro para señalar que, en junio del 2018, junto a otros Magistrados, presentó en este expediente una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Manifiesta que, aunque dicha inhibitoria fue aceptada, posteriormente mediante resolución de las 10 horas 40 minutos del 5 de junio de 2018, y de las 14 horas 40 minutos del 3 de agosto de 2018, todos los Magistrados que inicialmente habían presentado la inhibitoria, fueron habilitados nuevamente para el conocimiento de esta acción con fundamento en el principio de irrenunciabilidad de las competencias. Señala que, no obstante lo anterior, desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y, por ello, considera que ahora tiene una razón nueva para solicitar la inhibitoria. Argumenta que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad. Señala que, en este caso, se está frente a la misma situación pues no puede participar en la votación de este proceso debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo de esta acción ya que la normativa está relacionada con el Poder Judicial. Argumenta que, por esa razón, presenta esta nueva inhibitoria y remite los autos a la Presidencia de la Sala para que resuelva lo que corresponda de conformidad con lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

23.- En documento presentado en el 13 de febrero de 2019, se apersona el Magistrado suplente José Paulino Hernández Gutiérrez para manifestar que se separa del conocimiento de este asunto debido a que, mediante resolución de las 14 horas 40 minutos del 3 de agosto de 2018, el Magistrado Presidente del Tribunal dispuso habilitarlo por imperio de ley para el conocimiento de este proceso. Indica que en aquél momento se encontraba nombrado en una plaza vacante en el Tribunal; sin embargo, al haber designado la Asamblea Legislativa a un Magistrado titular en la plaza vacante que estaba ocupando, cesó su nombramiento y desapareció -por causa sobreviniente- el motivo de la habilitación, solicitando que se pasen los antecedentes del caso a la Presidencia de la Sala para que proceda conforme a derecho.

24.- Mediante resolución de la Presidencia de la Sala Constitucional de las 9 horas 07 minutos del 13 de febrero de 2019, se conoce solicitud de inhibitoria del magistrado Fernando Cruz Castro debido a que ocupa el cargo de Presidente de la Corte Suprema de Justicia desde agosto del 2018. Manifiesta que, en casos similares, la Presidencia de la Sala Constitucional ha dispuesto:

“Dadas las manifestaciones del Magistrado Cruz Castro y visto que, en su cara´cter de Presidente del Consejo Superior del Poder Judicial, autoridad recurrida en este proceso, rindio´ el informe solicitado en la resolucio´n de curso de este amparo, lo procedente es tenerlo por separado del conocimiento de este asunto” (resolucio´n de las 8 horas 14 minutos del 18 de octubre de 2018 -expediente No. 18-010635-0007-CO-; resolucio´n de las 14 horas 39 minutos del 13 de noviembre de 2018 -expediente No. 18-013211-0007-CO-; resolucio´n de las 14 horas 51 minutos del 13 de noviembre de 2018 -expediente No. 18-013203-0007-CO-; resolucio´n de las 14 horas 59 minutos del 13 de noviembre de 2018 -expediente No. 18-013194-0007-CO-; y resolucio´n de las 10 horas 21 minutos del 15 de noviembre de 2018 -expediente No. 18-008535-0007-CO-).

Se resuelve que, visto lo dispuesto en la resolucio´n transcrita, las manifestaciones del Magistrado Cruz Castro en su condicio´n de Presidente de la Corte Suprema de Justicia y al tratarse de la misma ratio decidendi -sea el Re´gimen de Jubilaciones y Pensiones del Poder Judicial-, lo procedente es tenerlo por separado del conocimiento de este asunto. Por su parte, en lo que se refiere a la solicitud de inhibitoria planteada por el Magistrado suplente José Paulino Hernández Gutiérrez, se indica que lleva razón en cuanto a que la situación expuesta daría como resultado el tenerlo por separado del conocimiento de este asunto; no obstante, el Magistrado Araya García ya está integrando la Sala para este caso, lo que se traduce en la ausencia de un magistrado para conformar el Tribunal ante la inhibitoria del magistrado titular Cruz Castro, una magistrada suplente ya nombrada en el expediente -Marta Esquivel Rodríguez- y los restantes 9 magistrados suplentes inhibidos. Se indica que la Sala esta´ obligada constitucionalmente a resolver los asuntos sometidos a su conocimiento, sin que circunstancias como las que ahora se presentan -ausencia de un magistrado para conformar el Tribunal ante la inhibitoria de un magistrado titular, dos magistrados suplentes ya nombrados en el expediente y los restantes diez magistrados suplentes inhibidos- enerve esa obligacio´n o releve a este Tribunal de su cumplimiento. Agrega que la Sala, en anteriores oportunidades, se ha visto confrontada a situaciones similares en la que, de acuerdo a lo establecido en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2) de la Ley Orgánica del Poder Judicial ha determinado que corresponde a los Magistrados Propietarios el conocimiento de esos asuntos por imperativo de ley sin que les alcance responsabilidad disciplinaria por esto, lo que constituye entonces una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los Magistrados que conozcan de un asunto en el cual los magistrados suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto. En consecuencia, se resuelve que, en virtud de las consideraciones hechas y en aplicacio´n, adema´s, de los principios generales del Derecho de la irrenunciabilidad de las competencias, de la plenitud herme´tica del ordenamiento juri´dico y del juez natural, lo procedente es rechazar la gestio´n planteada por el magistrado suplente Jose´ Paulino Herna´ndez Gutie´rrez debido a la ausencia de un magistrado para integrar el Tribunal, y, por imperio de ley, se le tiene por habilitado para el conocimiento de este proceso. Se concluye que el Tribunal, para el conocimiento de esta accio´n de inconstitucionalidad, queda integrado por los magistrados Fernando Castillo Vi´quez, Paul Rueda Leal, Nancy Herna´ndez Lo´pez, Luis Fdo. Salazar Alvarado, Jorge Araya Garci´a y los magistrados suplentes Jose´ Paulino Herna´ndez Gutie´rrez y Marta Esquivel Rodri´guez, quien en esa fecha integraba la Sala Constitucional en virtud de haber sido designada, por sorteo, para ocupar, temporalmente, la plaza que se encontraba vacante en el Tribunal en ese momento.

25.- Sobre la Acción de Inconstitucionalidad No. 18-007820-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002481 de las 9 horas 40 minutos del 13 de febrero de 2019, se ordenó acumular la acción de inconstitucionalidad número 18-007820-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

26.- Mediante escrito presentado en la Secretaría de la Sala a las 11 horas 35 minutos del 22 de mayo de 2018, se apersona Juan Carlos Sebiani Serrano en su condición de Presidente de la Asociación Nacional de Profesionales del Poder Judicial de Costa Rica, para plantear acción de inconstitucionalidad contra los artículos 224, 224 bis, 227, 236 y 236 bis de la Ley número 9544. En primer lugar, y con sustento en lo dispuesto en el artículo 91 de la Ley de la Jurisdicción Constitucional, solicita que se suspenda la vigencia de la ley impugnada en esta acción y que se disponga transitoriamente, que se mantiene en vigor el texto derogado, ello en aras de evitar graves dislocaciones a la justicia y a la paz social por considerar que la puesta en vigencia de la normativa impugnada, podría producir un éxodo acelerado de los más competentes funcionarios judiciales en vista de que la nueva ley provocará una disminución drástica en el monto de la jubilación y eso a futuro, en su criterio, afectará al colectivo judicial emocionalmente, lo que incide en su calidad de vida actual así como eventualmente en el rendimiento y servicio público, poniendo en grave situación la administración de justicia y la paz social de los costarricenses. Señala que la legitimación para presentar esta acción de inconstitucionalidad proviene del párrafo 2 del artículo 75 de la Ley de la Jurisdicción Constitucional en cuanto actúa en defensa de los intereses corporativos y colectivos de su representada toda vez, que, según indica, se está en presencia de “una norma que afecta directamente la esfera de acción del ente y de sus integrantes” dado que una de las finalidades de la asociación que representa es la defensa de los intereses de sus miembros que consisten en la posibilidad de obtener una pensión justa y digna al jubilarse como servidores del Poder Judicial. Manifiesta que las normas impugnadas, en cuanto restringen abusivamente el régimen de pensiones de los servidores judiciales, lesionan gravemente los intereses de sus asociados en materia de jubilaciones y pensiones, por lo que considera que su representada está legitimada para incoar esta acción. Inicia su referencia al fondo del asunto señalando como hechos relevantes: 1) que la jubilación será igual al 82% de los últimos 20 años de salarios mensuales ordinarios devengados en su vida laboral por el trabajador, siempre que hayan cumplido 65 años de edad y trabajado al menos 35 años (artículo 224); 2) del monto de jubilación deberá aportar un 13% al Fondo de Jubilaciones y Pensiones del Poder Judicial (artículo 236); 3) se impone como monto máximo de rebajos 55% para que la jubilación o pensión quede en un 45% de la totalidad del monto bruto de la jubilación o pensión (segundo párrafo del artículo 236); 4) el monto máximo de los rebajos se realiza sobre el monto de la jubilación o pensión y no sobre el monto de salario, lo que es significativamente menor y con ello, menor el monto a recibir por el servidor judicial; 5) el artículo 65 del convenio 102 de la OIT establece que la cuantía de la prestación de la jubilación debe ser sobre las ganancias brutas y no sobre el monto de la jubilación, lo cual no es el límite que se aplicó en la norma impugnada; 6) la contribución adicional sobre los excesos del tope establecido (10 veces el salario base del puesto más bajo pagado en el Poder Judicial) por montos que van desde el 35% al 55% (artículo 236 y 236 bis); 7) el texto final aprobado por la Asamblea Legislativa recibió 31 votos, cuando requería al menos 38 para poder separarse del criterio negativo vertido por la Corte Plena mediante el acuerdo número XXX de la sesión número 27 del 7 de agosto del 2017 según lo exige el artículo 167 de la Constitución Política. El accionante plantea la inconstitucionalidad de los artículos 224, 224 bis y 227 de la Ley No. 9544. Indica que el artículo 224 de la ley impugnada, dispone lo siguiente:

“Artículo 224.- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años”.

Considera el accionante que este artículo lesiona los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar, pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Añade que el derecho de jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo establecido y cuyo fin es garantizar una vida digna a la persona luego de que por razones de edad o invalidez se retira del mercado de trabajo; derecho que se deriva del numeral 73 constitucional y se adquiere a partir del momento en que la persona cumple con todos los requisitos establecidos por la legislación vigente. Destaca que el derecho a la jubilación no es irrestricto ya que puede ser sometido a determinadas limitaciones siempre y cuando éstas sean establecidas mediante una ley formal, sean razonables y no afecten su contenido esencial. Señala que la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación cuando se logre comprobar que existen ciertas situaciones que ponen en peligro la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal (ver sentencia número 2379-96). Considera que los artículos 224, 224 bis y 227 de la ley impugnada, son inconstitucionales por cuanto, luego de aplicados los rebajos establecidos legalmente, el monto de la pensión será inferior al 55% del último salario, lo que constituye una cifra ruinosa que, además, viola los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Argumenta que la forma de cálculo de la pensión y todos los rebajos aplicados, dejan la pensión en un monto tal que se constituye en “una reducción ruinosa, pauperizante e indigna no solo para las personas que se desempeñan como jueces de la República sino para todas las personas que trabajan en el Poder Judicial” (ver voto salvado del Magistrado Cruz Castro en sentencia 5758-2018). Señala que el derecho a una jubilación o pensión justa de los jueces (servidores judiciales), se constituye en parte del derecho humano a la seguridad social y el derecho a la jubilación. Manifiesta que, en este asunto, las normas recurridas transgreden el derecho a una pensión justa por ser excesivos los rebajos, desproporcionados e irrazonables; ni siquiera los porcentajes aplicados al impuesto sobre la renta, son tan elevados a los porcentajes establecidos en la ley impugnada. Argumenta que, en ese sentido, el límite máximo de renta a las empresas es del 30% y el 15% a personas físicas sin actividades lucrativas, frente a los jubilados el Estado tiene también límites para su potestad impositiva; la pensión para un jubilado es su ingreso y, por esa razón, las obligaciones tributarias que se le imponen, deben regirse por los principios de razonabilidad y proporcionalidad que rigen para las tasas impositivas que se fijan para salarios y ganancias. Advierte que, el hecho de que una persona se jubile, no autoriza al Estado para imponer una cuota en materia de pensiones que supere los límites tributarios de los asalariados y de las personas jurídicas, de manera que estos porcentajes -de la ley impugnada- establecen desigualdades o discriminaciones ilegítimas pues el porcentaje de esta contribución supera, sobradamente, el impuesto a las personas jurídicas y a las personas físicas. Manifiesta que estas determinaciones deben tomar en cuenta la contribución que ha hecho el funcionario judicial durante toda su vida laboral que, en promedio, es el 11% mensual sobre el salario bruto. Arguye que esta falta de ponderación adecuada del porcentaje de contribución que pagan los trabajadores judiciales para efectos de obtener eventualmente su derecho a la pensión, violenta los parámetros de razonabilidad, generalidad y proporcionalidad que rige, dentro de un Estado de Derecho, la imposición de cargas tributarias. Argumenta la inconstitucionalidad de los artículos 236 y 236 bis en relación con el artículo 224. Sobre el particular, señala que el cambio en los parámetros para acceder al derecho de jubilación (contenido en el artículo 224 de la ley impugnada) unido a la sujeción a una contribución especial y los porcentajes aplicados (contenidos en el artículo 236 y 236 bis de la ley) configuran un vicio de constitucionalidad, por violación de los principios de igualdad, de proporcionalidad y de razonabilidad. Manifiesta que el cambio en las condiciones para la jubilación disminuye sustancialmente el porcentaje de pensión a recibir por un jubilado pero, además, se somete a la pensión a lo que se denomina como “contribución especial, solidaria y redistributiva”. Señala que la drástica disminución en el monto de la pensión viola el principio de igualdad por cuanto solo se somete a los jubilados y pensionados del Poder Judicial a esa contribución solidaria y no a los beneficiarios de otros regímenes de pensiones; se trata de una imposición muy particular a un sector especial, un grupo de la sociedad vulnerable, como lo son los jubilados y pensionados. Considera que lo anterior resulta discriminatorio y violatorio del artículo 33 de la Constitución Política en los términos en que la Sala lo definió en la sentencia número 2003-005374 cuando indicó que “existirá una violación a la máxima general de igualdad, cuando para una diferenciación de la ley, no cabe hallar un fundamento razonable resultante de la naturaleza de las cosas o de otras causas adecuadas, o cuando desde la perspectiva de la justicia deba caracterizarse de arbitraria tal regulación”. Manifiesta que no resulta justificable que un sector de la población particularmente vulnerable, como lo son los jubilados y pensionados, sean sometidos exclusivamente a esa contribución especial. Agrega que las normas impugnadas violan también el principio de proporcionalidad y el principio de no confiscación por cuanto los porcentajes aplicados para esa denominada “contribución especial” resultan evidentemente desproporcionados, dado que oscilan entre un 35% y un 55%, lo que significa que el pensionado queda con derecho máximo a un 55% de su derecho de jubilación o pensión; ni siquiera los porcentajes máximos aplicados al impuesto de la renta, resultan tan elevados como los aplicados a los pensionados del Poder Judicial. Añade que las normas impugnadas violan el principio de razonabilidad por cuanto se trata, en el fondo, de una doble imposición ya que, por un lado, los jubilados y pensionados deben pagar un 13% de su pensión (conforme al artículo 236 de la ley), pero además, por otro lado, están sujetos al pago de “esa contribución especial” (conforme al artículo 236 bis de la misma ley) que va desde un 35% hasta un 55% sobre el tope establecido. Indica que las denominaciones que se le den a la contribución, no lo eximen de los límites a los que deben sujetarse, conforme al principio constitucional de no confiscatoriedad. Agrega violación de los artículos 224, 224 bis, 227, 236 y 236 bis del principio constitucional de unidad de la seguridad social. Recuerda que los principios rectores de la seguridad social se construyen mediante la interpretación armónica de los artículos 73 de la Constitución Política, 25.1 de la Declaración Universal de Derechos, 16 de la Declaración Americana de Derechos y Deberes del Hombre y 9 inciso 2) del Protocolo de San Salvador y son: universalidad, solidaridad, unidad e igualdad. Señala que el principio de unidad es aquél que considera el sistema de seguridad social como un todo por lo que exige que el sistema funcione con criterios congruentes y coordinados, que otorgue prestaciones o beneficios similares para las diferentes categorías de personas protegidas bajo su régimen, así como establezca cargas uniformes. Señala que este principio enfatiza que debe existir una congruencia en la gestión de las diferentes entidades que participan en la administración del sistema de seguridad social y los beneficios otorgados por ellas, de modo que, la multiplicidad de instituciones o de sujetos sometidos al régimen, no vulnere el principio de igualdad. Indica que lo anterior significa que pueden existir varias instituciones que participen en la administración del sistema de seguridad social, a condición de que los beneficios otorgados por ellas, sean semejantes, es decir, igual para todos los beneficiarios del sistema de seguridad social considerado como un todo. Añade que, asimismo, dentro de una determinada prestación de la seguridad social -por ejemplo el régimen de jubilaciones y pensiones-, todos sus cotizantes deben estar sujetos a las mismas cargas y a ser beneficiarios de las mismas prestaciones, de lo contrario, se violaría también el principio de igualdad ante las cargas públicas que deriva del numeral 33 de la Constitución Política. Señala que las normas impugnadas, discriminan entre los trabajadores sujetos al régimen de seguridad social administrado por la Caja Costarricense de Seguro Social y el régimen jubilatorio de los servidores judiciales, siendo que, dentro de ese orden de ideas, las cargas de los trabajadores del Poder Judicial, exceden en mucho las que soportan los trabajadores afiliados al régimen de la Caja Costarricense de Seguro Social: por ejemplo, en el caso de la cuota para el Fondo de Jubilaciones y Pensiones del Poder Judicial, la diferencia es de casi 9 puntos porcentuales en perjuicio de los trabajadores del Poder Judicial a pesar de que ambas categorías tienen derecho a soportar las mismas cargas. Indica que los trabajadores judiciales deberían estar sujetos a las mismas cargas tributarias que soportan los afiliados al régimen de seguridad social administrado por la Caja Costarricense de Seguro Social, a fin de no violar el principio de igualdad que permea todo el sistema de la seguridad social. Aduce que, en ese sentido, no es posible, por tanto, que las cargas de los trabajadores judiciales sean mayores que las que soportan los afiliados al régimen de pensiones de la Caja, dado que unos y otros se encuentran en la misma situación de hecho: son trabajadores obligados a cotizar al régimen de seguridad social para obtener, al final de su carrera, una pensión digna en igualdad de condiciones. Argumenta que, en el caso de los regímenes de pensiones, todos sus beneficiarios, sin diferenciación alguna, deben estar sujetos a las mismas cargas y recibir los mismos beneficios a fin de no violar el principio de igualdad que permea todo el sistema de la seguridad social. Señala que, en este asunto, las normas impugnadas le otorgan a quienes se pensionan bajo el régimen administrado por la Caja, una ventaja respecto de los servidores judiciales, en cuanto éstos pagan 9 puntos porcentuales más de cuota mensual, a pesar de que el porcentaje de la pensión, en ambos casos, ronda alrededor del 55% del último salario devengado. Resume este punto indicando que las normas impugnadas en cuanto fijan cuotas discriminatorias a los trabajadores del Poder Judicial respecto de los cobijados bajo el régimen de pensiones de la Caja, devienen inconstitucionales por violación del principio constitucional de unidad de la seguridad social. Alega la inconstitucionalidad del artículo 239. Señala que este numeral delega la posibilidad de modificar los parámetros iniciales establecidos en la misma ley respecto de los requisitos de elegibilidad, al perfil de beneficios, así como a los aportes y cotizaciones de los servidores judiciales, y de las jubilaciones y pensiones previstos en la ley, con lo cual incurre en clara violación de los artículos 9 y 28 de la Constitución Política en relación con el artículo 30 de la Convención Americana de Derechos Humanos y el artículo 121 inciso 13 constitucional. Recuerda que reiterada jurisprudencia constitucional ha considerado que el régimen de los derechos y libertades fundamentales es materia de reserva de la ley; aduce que por esta razón, un tema como la experimentación con seres humanos que incluye derechos tan importantes y esenciales como la vida, la salud, la dignidad y la intimidad de los seres humanos, exige su regulación mediante una ley, no sólo porque se encuentra previsto dentro del sistema de libertad que garantiza el artículo 28 constitucional, sino que, además, se trata de un principio material que forma parte del régimen democrático, lo cual es condición que le da un rango intrínsecamente fundamental (ver sentencias 2002-001764 de las 14 horas 37 minutos del 20 de febrero de 2002, 2008-017305 de las 14 horas 58 minutos del 19 de noviembre del 2008 y 2009-013605 de las 14 horas 56 minutos del 26 de agosto de 2009). Añade que el principio de reserva legal no sólo garantiza la libertad frente al resto de los ciudadanos, sino que constituye una garantía de control frente al poder público (voto 1635-90 de las 17 horas del 14 de noviembre de 1990) que, por ejemplo, en el caso de la experimentación clínica con seres humanos, exige que su regulación, autorización, limitación y control, provenga de la cámara legislativa que es a quien le corresponde proteger o intervenir los derechos fundamentales del ciudadano (voto 1668-10 de las 15 horas 12 minutos del 27 de enero de 2010). Señala que el artículo 239 de la ley impugnada, le otorga a un órgano desconcentrado del Poder Judicial, la potestad de regular y restringir eventualmente el derecho fundamental a la pensión y a la seguridad social; por tanto, estos cambios regulatorios del derecho a la pensión de los servidores judiciales, sólo puede hacerse mediante una ley formal aprobada por la Asamblea Legislativa y no mediante la emisión de actos administrativos por parte de un órgano desconcentrado del Poder Judicial. Considera que la norma impugnada viola no sólo el artículo 28 sino también el 9 de la Constitución Política dado que delega el ejercicio de la potestad legislativa en un órgano desconcentrado del Poder Judicial; se delega en la Junta Administradora del Fondo de Pensiones, la modificación de aspectos puntuales de la ley impugnada. Agrega que la norma impugnada también viola el numeral 30 de la Convención Americana de Derechos Humanos, el cual exige que las restricciones a los derechos fundamentales sólo pueden realizarse por ley formal aprobada por un órgano parlamentario: en el presente caso se autoriza a la Junta Administradora a modificar los parámetros iniciales de la ley, lo cual implica una restricción evidente al derecho a la pensión de los servidores judiciales. Añade que también se viola el artículo 121 inciso 13 de la Constitución por cuanto esta norma autoriza a un órgano administrativo a modificar la tarifa de un tributo como es, jurídicamente, la contribución de los servidores a un régimen de pensiones, lo cual es privativo de la ley formal según la norma constitucional citada. Argumenta violación del artículo 167 de la Constitución Política. En este sentido, señala que el texto final aprobado por la Asamblea recibió sólo 31 votos cuando requería de 38 para poder apartarse del criterio negativo vertido por la Corte Plena mediante el acuerdo número XXX de la sesión número 27 del 7 de agosto de 2017 al evacuar la respectiva consulta formulada por el órgano legislativo. Manifiesta que la ley impugnada, al no haber obtenido votación calificada, vulnera el segundo párrafo del artículo 167 de la Constitución Política. Finaliza solicitando que en sentencia se declare que los artículos 224, 224 bis, 227, 236 y 236 bis de la Ley No. 9544, son inconstitucionales por ser contrarios a los principios constitucionales y normas citados en esta acción.

27.- Los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el magistrado suplente José Paulino Hernández Gutiérrez y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

28.- En resolución de la Presidencia de la Sala Constitucional de las 10 horas 50 minutos del 5 de junio del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

29.- Mediante oficio agregado al expediente electrónico la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6160 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Mauricio Chacón Jiménez, Anamari Garro Vargas, Ileana Sánchez Navarro, Jorge Araya García, Rónald Salazar Murillo, Alejandro Delgado Faith y Hubert Fernández Argüello.

30.- El 12 y 14 de junio de 2018, los Magistrados suplentes Alejandro Delgado Faith y Mauricio Chacón Jiménez formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

31.- En resolución de las 8 horas 40 minutos del 14 de junio de 2018 la Presidencia de la Sala Constitucional dispuso tener por separados a los Magistrados suplentes Mauricio Chacón Jiménez y Alejandro Delgado Faith, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

32.- El 15, 19, 21 y 28 de junio de 2018, los Magistrados suplentes Hubert Fernández Argüello, Anamari Garro Vargas, Ileana Sánchez y Rónald Salazar Murillo, por su orden, plantearon solicitud de inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal número 18-007819-0007-CO.

33.- La Presidencia de la Sala Constitucional en resolución de las 10 horas 32 minutos del 28 de junio de 2018, tuvo por separados a los anteriores 4 Magistrados suplentes del conocimiento de este proceso y dispuso que se comunicara lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución, según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

34.- Mediante oficio agregado al expediente electrónico el 3 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6232 efectuado para la sustitución de los Magistrados y Magistradas Anamari Garro Vargas, Rónald Salazar Murillo, Hubert Fernández Argüello e Ileana Sánchez Navarro, manifestándose que debido a que la Sala originalmente había pedido 4 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que hay disponibles, siendo seleccionados Ana María Picado Brenes, Alicia María Salas Torres y María Lucila Monge Pizarro.

35.- El 4 de julio de 2018, las Magistradas suplentes Alicia Salas Torres, Lucila Monge Pizarro y Ana María Picado Brenes presentan solicitud de inhibitoria en términos similares a los que plantearon en el expediente original 18-007819-0007-CO.

36.- La Presidencia de la Sala Constitucional en resolución de las 13 horas 02 minutos del 4 de julio de 2018, dispuso tenerlas por separadas del conocimiento de este proceso.

37.- Mediante resolución de la Presidencia de la Sala Constitucional de las 13 horas 48 minutos del 4 de julio de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado y José Paulino Hernández Gutiérrez, y se dispuso continuar con la tramitación del expediente.

38.- Se apersona el Magistrado Fernando Cruz Castro mediante escrito presentado el 12 de febrero de 2019 para manifestar que en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

39.- Mediante resolución de las 12 horas 44 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo-, y con sustento en resolución de las 14 horas 40 minutos del 3 de agosto de 2018, dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocerlo a la Magistrada suplente Marta Eugenia Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

40.- El 13 de febrero de 2019 se apersona el Magistrado suplente José Paulino Hernández Gutiérrez para manifestar que se separa del conocimiento de este asunto por cuanto la Asamblea Legislativa ha designado al Magistrado titular en la plaza en la que se encontraba laborando y, por ende, al cesarse su nombramiento, ha desaparecido la causa sobreviniente por la cual se le había habilitado en la resolución de las 13 horas 48 minutos del 4 de julio del 2018. Solicita que se pasen los antecedentes del caso a la Presidencia de la Sala para que se proceda conforme a Derecho.

41.- La Presidencia de la Sala Constitucional en resolución de las 8 horas 04 minutos del 13 de febrero de 2019 y con sustento en las consideraciones externadas en el expediente principal en la resolución de las 14 horas 40 minutos del 3 de agosto de 2018, dispuso rechazar la gestión planteada por el Magistrado suplente José Paulino Hernández Gutiérrez, le declara habilitado para conocer el asunto, y continuar con la tramitación del expediente.

42.- Sobre la Acción de Inconstitucionalidad No. 18-008202-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002483 de las 10 horas del 13 de febrero de 2019 se ordenó acumular la acción de inconstitucionalidad número 18-008202-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

43.- Mediante escrito presentado en la Secretaría de la Sala a las 10 horas 45 minutos del 29 de mayo de 2018, se apersonan Hernán Campos Vargas, mayor, casado, jubilado judicial, con cédula número 1-519-160, vecino de Coronado, en su condición de Secretario General del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD) y Yesenia Paniagua Gómez, mayor, soltera, empleada judicial, portadora de la cédula 1-845-494, vecina de Zapote, en su calidad de Presidenta de la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD), para presentar acción de inconstitucionalidad en contra de la Ley 9544 publicada en La Gaceta No. 89 del 22 de mayo de 2018. Consideran que esa ley es contraria a las normas y principios constitucionales, supra constitucionales o convencionales al haberse presentado en el proceso de su formación una serie de violaciones al debido proceso legislativo, trámites o procedimientos en la formación de la ley establecidos tanto en la Constitución Política como en el Reglamento de la Asamblea Legislativa en sus artículos 116, 117, 121, 126 así como el procedimiento establecido por el Plenario Legislativo para la tramitación del proyecto vía 208 bis; ambas normativas consideradas como interna corporis y delimitadoras del debido proceso legislativo, lo que es parámetro de constitucionalidad según lo que indica el artículo 73 inciso c) de la Ley de la Jurisdicción Constitucional, contrariando además lo establecido en los artículos 9, 105, 119, 152, 153, 154 y 167 de la Constitución Política. Consideran que además se vulneran los principios: Democrático, de Publicidad, de Razonabilidad y Proporcionalidad, Interdicción de la Arbitrariedad, Debido Proceso y Seguridad Jurídica. Solicitan que, de acuerdo con lo establecido en el artículo 81 de la Ley de la Jurisdicción Constitucional, se suspenda la vigencia de la ley impugnada en esta acción, ello por cuanto, al entrar en vigor la Ley 9544 aquí cuestionada, podría generar la salida inmediata de personal especializado en las diferentes áreas que componen el Poder Judicial, lo que podría comprometer el buen desarrollo de la administración de justicia, trastocando otros derechos fundamentales como la justicia pronta y cumplida, en detrimento de la paz social costarricense. Añaden que la entrada en vigencia de la ley cuestionada, implica también un aumento del 2% en el rebajo de sus salarios, jubilaciones y pensiones para subir el aporte obrero al fondo de pensiones y pasar de un 11% a un 13%, lo que, sin una previsión o a través de un aumento escalonado, pone en peligro la estabilidad económica de las personas que laboran en el Poder Judicial, o de las que están jubiladas y pensionadas (debe recordarse la dificultad para el Gobierno en aumentar un 1% del aporte obrero al fondo del IVM). Piden que, con la intención de evitar perjuicios innecesarios, de manera cautelar, se mantenga la aplicación de la normativa que deroga la ley cuestionada y, con ello, mientras se resuelve esta acción, no se afecte a las personas con derecho a jubilarse o pensionarse. En cuanto a la legitimación de sus representadas, afirman que la Sala ha sido reiterativa en el hecho de que los entes representativos de intereses gremiales o corporativos, tienen legitimación para incoar directamente acciones de inconstitucionalidad, lo cual se contempla además en el artículo 75 párrafo segundo de la Ley de la Jurisdicción Constitucional en tanto se actúe en defensa de los intereses corporativos y colectivos de sus miembros o asociados. Señalan que la frase contenida en ese numeral que dispone “intereses que atañen a la colectividad en su conjunto”, hace referencia a la legitimación que ostentan respecto de los grupos corporativos que representan en su condición de Secretario General del Sindicato, el primero y Presidenta de la Asociación, la segunda, actuando en defensa de los derechos e intereses de las personas que conforman la base asociativa de ambas entidades, siendo que esta acción resulta de capital importancia a efectos de proteger los derechos e intereses específicos de la colectividad que representan por las graves consecuencias de aprobar una ley que infringe aspectos de forma y fondo, contrariando el Derecho de la Constitución, perjudicando de manera directa a todos los agremiados en sus intereses gremiales, profesionales, laborales y personales. Añaden que la ley impugnada de inconstitucional -en su totalidad-, disminuye de manera abusiva y agresiva el régimen de pensiones de las personas que laboran en el Poder Judicial, lesionando de esa manera gravemente los intereses de sus asociados en materia de pensiones. Relación de hechos por los cuales consideran que la Ley No. 9544 impugnada, es inconstitucional: inician su análisis manifestando que la Ley Orgánica del Poder Judicial (LOPJ) No. 7333 de 5 de mayo de 1993, establecía en sus artículos 81 incisos 12, 13, 14 y 15 -derogados por la Ley 9544- y 235, que el Consejo Superior del Poder Judicial era el órgano encargado de administrar el Fondo de Jubilaciones y Pensiones del Poder Judicial -artículos 67 y 81 inciso 16 y, en su artículo 59 incisos 21 y 22, disponía que le corresponde a Corte Plena emitir las directrices sobre alcances de normas en procura de una justicia pronta y cumplida, así como ejercer las funciones que la Constitución le otorgue. Manifiestan que en sesión de Corte Plena No. 026 del 7 de agosto de 2017, artículo XXX, ese órgano colegiado determinó que los aspectos relacionados con el Fondo de Jubilaciones y Pensiones del Poder Judicial, conocidos en el expediente legislativo No. 19.922, sí afectaban el funcionamiento y la organización del Poder Judicial. Manifiestan que el texto de la Ley 9544 en su Capítulo IV, a partir del artículo 239, crea un nuevo órgano dentro del Poder Judicial, con una conformación diferente a la del Consejo Superior, otorgándole nuevas funciones y obligaciones al Poder Judicial y eliminándole funciones a ese Consejo; cambios que tienen que ver con la organización y funcionamiento de este Poder de la República. Señalan que el artículo 167 constitucional establece la obligatoriedad de consultar los proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial e indican que, en caso de que la consulta reciba una respuesta negativa por parte del Poder Judicial, se obliga al Poder Legislativo a que, para apartarse de dicho criterio, debe contar con una votación de, al menos, 2 terceras partes de los 57 diputados y diputadas, ello relacionado con el artículo 119 constitucional. Manifiestan que la Comisión Dictaminadora conoce y aprueba un texto sustitutivo dentro del expediente legislativo indicado antes, esto el 13 de septiembre de 2016; texto que nunca fue publicado, contraviniendo lo establecido en los artículos 116, 117 y 121 del Reglamento de la Asamblea Legislativa, así como el trámite acordado por el Plenario para tramitar el proyecto 19.922 vía 208 bis. Agregan que el Poder Legislativo cumplió con la obligación constitucional de realizar la consulta al Poder Judicial en relación con el proyecto dictaminado por la Comisión Especial el 27 de julio de 2017 siendo que, la respuesta a esa consulta, fue negativa y, por tanto, ello obligaba a que las subsiguientes votaciones se realizaran con al menos 2 terceras partes de los votos de los 57 Diputados y Diputadas de la Asamblea Legislativa. Advierten que la votación en primer debate del proyecto no alcanzó el total de las 2 terceras partes de los y las Diputadas, siendo que, además, el proyecto votado en primer debate, contenía cambios respecto del proyecto dictaminado por la Comisión y que fue el último consultado a la Corte Plena el 27 de julio de 2017; por tanto, ese proyecto votado, resulta ser un texto sustitutivo introducido mediante moción y que no fue debidamente consultado a Corte Plena, contraviniéndose con ello lo establecido en el artículo 167 constitucional. Manifiestan que, ese proyecto inconsulto, luego de votado en primer debate el 30 de octubre de 2017, fue publicado en el Alcance 268 a la Gaceta Digital No. 212 hasta el 9 de noviembre de 2017, contrariando el principio democrático y de publicidad. Argumentan que el 1 de noviembre de 2017, antes de que se publicara ese proyecto votado de forma inconsulta, se plantea por parte de un grupo de Legisladores y Legisladoras, una consulta facultativa de constitucionalidad sobre el proyecto que derivó en la Ley 9544. Añaden que, en el segundo debate del expediente número 19.922 donde finalmente se aprobó la Ley 9544, nuevamente el Plenario Legislativo incumple con el requerimiento de una votación igual o superior a las 2 terceras partes de todos los Diputados y Diputadas. Los accionantes plantean, como argumentos de la inconstitucionalidad, los siguientes: 1) debe tomarse en cuenta el criterio de la Procuraduría General de la República, Opinión Jurídica OJ-054-2007 de 21 de junio de 2007, respecto de la no publicación de un proyecto de ley que, como en el caso concreto, tiene relación con la organización o funcionamiento del Poder Judicial, considerando que ello ocasiona una vulneración de tipo sustancial. Indican que, sobre el particular, en esa Opinión Jurídica se hizo un análisis de las nulidades de tipo parlamentario y sus consecuencias al no encontrar una regulación expresa en el Reglamento de la Asamblea Legislativa y, haciendo uso de lo indicado en el artículo 73 inciso c) de la Ley de la Jurisdicción Constitucional, en lo que interesa, se señaló:

“(…) el Estatuto Parlamentario presenta un vacío normativo, pues no regula el procedimiento ni los supuestos para declarar la nulidad de las actuaciones parlamentarias.

Ahora bien, tenemos que el vicio puede estar residenciado en el acto parlamentario final, constituyendo un vicio de fondo invalidante, el cual puede ser atacado a través de los procesos constitucionales de defensa de la Constitución (…). El otro supuesto, objeto de la consulta, es cuando el vicio se encuentra en las actuaciones y omisiones parlamentarias referentes a los procedimientos parlamentarios, el cual, sí tiene ciertas características (cuando se trate de la violación de algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento de la Asamblea Legislativa, artículo 73, inciso c de la Ley Jurisdicción Constitucional), invalidaría el acto parlamentario final” (subrayado y negrita son del original).

Consideran que en esta Opinión Jurídica queda claro que, en caso de violaciones sustanciales al procedimiento, resulta inválido el acto parlamentario final desde la perspectiva del Derecho de la Constitución. Indican que, en el trámite en la formación de la Ley 9544, se infringió el debido proceso legislativo desde el punto de vista sustancial y, por tanto, en su criterio, la ley resulta inconstitucional, solicitando que así se declare (ver sentencia No. 3220-00 de las 10 horas 30 minutos del 18 de abril de 2000). 2) Eliminación de funciones al Consejo Superior e Incumplimiento de lo establecido en el artículo 167 de la Constitución Política. Argumentan que la Ley Orgánica del Poder Judicial establecía en sus artículos 81 incisos 12, 13, 14 y 15 (derogados por la Ley 9544) y 235 que, antes de la reforma establecida en la Ley 9544, el Consejo Superior del Poder Judicial era el órgano encargado de administrar el Fondo de Jubilaciones y Pensiones, ello en el entendido de que ese Consejo es un órgano de Corte Plena según lo establecido en el numeral 67 y 81 inciso 16) al que le corresponde “administrar” el Poder Judicial. Indican que, al derogar el articulado que establecía la potestad de ente administrador del Fondo de Jubilaciones y Pensiones del Poder Judicial, evidentemente se está frente a una variación a la “organización y funcionamiento” de este Poder de la República. Consideran que esta eliminación de funciones al Consejo Superior del Poder Judicial, genera por sí sola la obligatoriedad de realizar la consulta establecida en el artículo 167 de la Constitución Política, ello con las consecuencias en caso de una respuesta negativa a la consulta indicada. 3) Creación de un nuevo órgano dentro del Poder Judicial. Argumentan que en la Ley 9544 que cuestionan de inconstitucional por incumplimiento grave de aspectos en el íter del procedimiento parlamentario en su aprobación, se tiene que el artículo 239 crea una nueva y diferente figura para administrar el fondo de pensiones y jubilaciones en el Poder Judicial; figura que es muy diversa al sistema que venía funcionando antes de esa reforma. Argumentan que este nuevo “órgano” es creado a lo interno del Poder Judicial, pero indicándose que con absoluta independencia funcional, técnica y administrativa, pero no habla ni determina la ley que va a tener ningún tipo de desconcentración, ni mínima ni máxima. Añade que, pese a lo anterior, como lo determina el artículo 83 de la Ley General de la Administración Pública, este nuevo órgano estará plenamente subordinado a Corte Plena, y por tanto, resulta ser responsable de la actividad desplegada por este nuevo “órgano”, tal y como lo indican los artículos 191 y siguientes de la Ley General de la Administración Pública. Argumentan que así va a existir un órgano con una independencia absoluta dentro del Poder Judicial que, en caso de cualquier conducta lícita o ilícita que genere daños a terceros, va a generar una responsabilidad solidaria y objetiva del Poder Judicial y, por ende, se preguntan si ello no va a ser considerado como una reforma que afecta la organización o funcionamiento del Poder Judicial?. Añaden que, al crearse un órgano dentro del Poder Judicial encargado de administrar el fondo con completa independencia funcional, técnica y administrativa, se deja la posibilidad de intervención por parte de la Corte al mínimo o, convirtiéndose en casi nula, de manera tal que se mantiene la responsabilidad subsidiaria y objetiva de Corte pero, sin posibilidad de ejercer un control por parte de Corte Plena, lo que es muy diferente a lo que operaba en el caso del Consejo Superior, de ahí que esta variación administrativa sí debió consultarse de manera obligatoria como indican, lo han venido sosteniendo. Indican que esa norma otorga una serie de competencias a este nuevo órgano del Poder Judicial, como la de administrar el fondo de jubilaciones y pensiones, realizar estudios actuariales, dictar normas para la administración del personal a su cargo, así como conocer solicitudes de jubilación, esto entre otras atribuciones establecidas en el artículo 239 de cita, pero importante y relacionado con la responsabilidad del Poder Judicial, este órgano va a ser el encargado de determinar las inversiones (artículo 240 bis Ley 9544). Recuerdan que en el caso del Consejo Superior, éste administró el fondo pero sin la independencia que la Ley 9544 otorga a la nueva Junta Administradora. Advierten que, hasta ahora, se tiene a un nuevo órgano dentro del Poder Judicial creado por esta Ley con nuevas atribuciones a lo interno de este Poder de la República y crea mayores responsabilidades al Poder Judicial. 4) Conformación de la nueva Junta Administradora. Manifiestan que, aunado a lo anteriormente señalado, el artículo 240 de la Ley 9544 establece que esta nueva Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, estará conformada por 3 miembros elegidos por el colectivo judicial y 3 miembros designados por Corte Plena, con lo cual, además de la creación del nuevo órgano, de otorgarle novedosas atribuciones así como nuevas y mayores responsabilidades al Poder Judicial (todo en modificación y afectación a la organización y funcionamiento), también viene la nueva ley a imponer nuevas funciones tanto al colectivo judicial como a la misma Corte Suprema de Justicia, variando así la organización y funcionamiento del Poder Judicial pues ahora es la Corte Plena la encargada de determinar cuáles personas (3) van a representar al “patrono” en esta nueva figura legal creada, lo que consideran motivo claro y suficiente para generar la obligatoriedad de haber consultado el proyecto, así como de atenerse y cumplir los requerimientos que produce un dictamen negativo como el que emitió la Corte Suprema de Justicia. Consideran que para aclarar la situación lo mejor posible, debe verse que esto es el funcionamiento y organización del Poder Judicial. 5) ¿Qué se debe entender como funcionamiento y organización del Poder Judicial?. Indican que, para comprender qué debe entenderse por organización y funcionamiento del Poder Judicial, debe partirse del análisis del acuerdo de Corte Plena adoptado en la Sesión 9-17 del 24 de abril de 2017, artículo XXIX que hizo referencia al proyecto de ley número 19.922 que culminó con la ley viciada de inconstitucionalidad No. 9544 y, en el que Corte Plena concluyó que el proyecto de ley consultado, si incide en la organización y funcionamiento del Poder Judicial, de conformidad con lo estipulado en el artículo 167 de la Constitución Política. Añaden que, en el acuerdo tomado en sesión No. 27 del 7 de agosto de 2017, artículo XXX, al evacuarse la consulta de la Asamblea Legislativa sobre el Dictamen Afirmativo de Mayoría respecto de la reforma al Fondo de Jubilaciones y Pensiones del Poder Judicial modificado por Ley 9544, la Corte Plena determinó, en lo que interesa, que:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial (…) con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 8 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente nº 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial (…) Se acordó: 1.) Tener por hecha la exposición de la Directora Jurídica. 2.) Acoger el informe sobre el proyecto de ley consultado y hacerlo de conocimiento del Plenario Legislativo y de la Comisión Especial Encargada de Conocer y Dictaminar el Proyecto de Ley denominado: “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo Nº 19.922” en adelante denominado: Reforma del Título IX de la Ley Orgánica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales de la Asamblea Legislativa, en respuesta a la consulta formulada, con la indicación expresa de que esta Corte emite criterio negativo y se opone al proyecto de ley consultado, pues incide en la organización, estructura y funcionamiento del Poder Judicial. 3.) Tener por hechas las manifestaciones de las Magistradas Rojas, Arias y el Magistrado Gamboa” (la negrita es del memorial).

Aducen que en función del ejercicio de independencia consagrado en el artículo 9 de la Constitución Política, Corte Plena emite un acuerdo donde determina que, efectivamente, el tema de pensiones relacionado con el expediente legislativo número 19.922 y, por ende la Ley 9455, sí afecta la organización y funcionamiento de este Poder de la República. Recuerdan que los artículos 152 y 153 de la Constitución Política establecen que el Poder Judicial lo ejerce la Corte Plena y que le corresponde resolver de los asuntos de su competencia de manera absoluta pero, con mayor claridad, el artículo 59 de la Ley Orgánica del Poder Judicial, amplía esa explicación, señalando en su inciso 1) que dentro de sus funciones está el deber de informar a los otros Poderes del Estado por cuáles asuntos debe ser consultada. Argumentan que la anterior normativa, como parámetro de constitucionalidad, surge del artículo 167 constitucional, siendo que la Corte Plena emitió criterio no solamente negativo al proyecto, sino en cuanto a que efectivamente el contenido de la Ley 9544 debió ser obligatoriamente consultado, así en Sesión Nº 27, del 7 de agosto de 2017, Artículo XXX donde indicó, como se dijo:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial (…)”.

Agregan que lo anterior se amplía con el contenido del artículo 59 incisos 21) y 22) de la Ley Orgánica del Poder Judicial: según el 21) debe emitir las directrices sobre alcances de la norma en procura del principio de justicia pronta y cumplida, aplicable claramente a toda la legislación administrativa sobre pensiones y jubilaciones en el Poder Judicial, pero que, además, según el 22) es un mandato constitucional. Manifiestan que, por lo anterior, ya Corte Plena en uso de sus facultades autorregulativas determinó que los asuntos propios de pensiones y jubilaciones del Poder Judicial sí tienen que ver con la estructura y funcionamiento del Poder Judicial y por tanto resulta de consulta obligatoria cualquier proyecto de reforma (destacados son del memorial). Manifiestan que, vista la posición del Gobierno Judicial ejercido por la Corte Plena de manera independiente respecto de otros Poderes, interesan ahora las resoluciones del Tribunal Constitucional que, en su criterio, pueden ayudar a fundamentar aún más el argumento que defienden de la obligatoriedad de la consulta establecida en el artículo 167 constitucional. Recuerdan que en la sentencia No. 2008-005179 de las 11 horas del 4 de abril de 2008, la Sala señaló que:

“La mayoría de este Tribunal Constitucional estima que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas. Debe tomarse en consideración que la norma constitucional de comentario armoniza dos aspectos de carácter fundamental, por una parte la independencia del Poder Judicial y por otra el ejercicio de la libertad de configuración o conformación del legislador, la cual no tiene otro límite que el Derecho de la Constitución” (destacados del memorial).

A partir del citado voto, consideran que se ve con meridiana claridad que la creación, variación o supresión (destacados del original) de un órgano administrativo adscrito al Poder Judicial, tiene que ver de manera directa con la organización y/o funcionamiento de este Poder. Estiman entonces que, lo estipulado en los artículos 239 y 240 de la Ley 9544, al crear un órgano del Poder Judicial (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) y eliminar funciones a otro (Consejo Superior del Poder Judicial), produjo una modificación en la estructura del Poder Judicial, a su organización y administración, debiéndose de esa manera, hacer la consulta según lo establece el artículo 167 constitucional. Agregan que, sobre el particular, hay otra resolución en la que la Sala explicó y aclaró, como aspectos de tipo meramente administrativo y no solamente de tipo jurisdiccional, tienen relación directa con la organización y funcionamiento de este Poder independiente de la República (destacados del original), según sentencia No. 2001-13273 de las 11 horas 44 minutos del 21 de diciembre de 2001 en la cual, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal en cuanto modifica aspectos relativos a la organización o funcionamiento -mera administrativa- del Archivo Judicial, sostuvo por unanimidad, los siguiente:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia judicial reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado” (el resaltado es del original).

Indican que esta sentencia tiene varios puntos de importancia que es necesario mencionar en relación con aspectos de tipo administrativo en el Poder Judicial (no exclusivamente jurisdiccional) y que sí tienen relación directa con su organización y funcionamiento. Señalan que la reforma trataba de una modificación en el ámbito de funciones del Archivo Judicial pues se pretendía el aumento en la cantidad de datos que se debía registrar (no olvidar que se registra información también de personas que no han tenido causas penales y que utilizan esa información -hoja de delincuencia- para aspectos laborales, por ejemplo), lo cual nada tiene que ver con la actividad jurisdiccional, estrictamente hablando. Argumentan que, de esta manera, resulta claro y evidente que la creación de un órgano a lo interno del Poder Judicial, como es el caso de la Junta Administrativa del Fondo de Jubilaciones y Pensiones, pero que, además y al mismo tiempo, elimina potestades a otro órgano de suma importancia en el Poder Judicial como lo es el Consejo Superior, guarda absoluta y directa relación con la organización y funcionamiento del Poder Judicial. Consideran que resolver de otra manera pone en entredicho la independencia establecida en los artículos 9, 10, 153, 154 y 156 de la Constitución Política. Señalan que, por lo anterior, la Ley 9544 presenta un insalvable vicio en el procedimiento legislativo seguido y, por ende, un incumplimiento a lo establecido en el artículo 126 del Reglamento de la Asamblea y evidentemente al 167 de la Constitución Política, al no haber consultado al Poder Judicial respecto del proyecto que fuera votado en primer debate convirtiéndolo así en un texto inconstitucionalmente inconsulto (subrayado del original). Insisten en cuanto a que el texto sustitutivo del proyecto de ley finalmente dictaminado por la Comisión Especial en la sesión del 27 de julio de 2017, sí fue consultado a la Corte Suprema de Justicia; sin embargo, dicho texto no fue el que, finalmente, se aprobó en primer debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial. Manifiestan que, la Sala, en otras sentencias y obedeciendo a diferentes realidades o contextos, ha resuelto aspectos relacionados con la consulta obligatoria establecida en el artículo 167 de la Constitución Política, por lo que debe tenerse claro el motivo y finalidad de cada consulta para no caer en interpretaciones equivocadas. Reiteran que, en la sentencia 2008-005179 de las 11 horas del 4 de abril de 2008 citada supra, la mayoría de la Sala:

“(…) estima que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas (…)”.

y manifiesta además que ahí se hace una diferenciación entre órganos estrictamente jurisdiccionales y los de naturaleza administrativa, siendo que, en ese caso, se crea o elimina (como el caso que se presenta en esta acción de inconstitucionalidad), funciones materialmente administrativas como lo es la administración del fondo, las nuevas reglas y el nuevo órgano creado, así como nuevas responsabilidades del Poder Judicial (además de la eliminación de las anteriores funciones del Consejo Superior). Igualmente, recuerdan la sentencia número 2001-013273 de las 11 horas 44 minutos del 21 de diciembre de 2001, también citada supra, en la que se dijo que “De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial (…).

Argumentan que, en esa sentencia en concreto, se analizó que la función del Archivo Judicial no puede considerarse como propia de la Judicatura, pero sí como un órgano auxiliar y, por ello, es un órgano eminentemente administrativo. Señalan que la Ley Orgánica del Poder Judicial establece en el artículo 81 inciso 12) -ahora derogado por la Ley 9544-, que el Consejo Superior va a ser el órgano encargado de la administración del fondo de jubilaciones y pensiones, entonces, qué diferencia existe entre la actividad administrativa (desde la perspectiva del derecho administrativo) desplegada por el Consejo Superior como administrador del fondo de pensiones, y la del Archivo Judicial (siendo el Consejo Superior su superior) como administrador de la información de carácter administrativa utilizada tanto en procesos judiciales como en el ámbito administrativo -caso de las naturalizaciones, pólizas, incorporación a Colegios Profesionales, o asuntos puramente internacionales atinentes a los dueños de la información contenida en esa base de datos que debe estar sometida a la legislación administrativa de Protección de Datos Personales Ley No. 8968 y su reglamento-. Consideran que no hay diferencia y, por ello, estiman que, en el caso de la reforma al Fondo de Jubilaciones y Pensiones impuesta por la Ley 9544, el proyecto votado en primer debate, debió consultarse, máxime al introducir variaciones más agresivas que el ejemplo utilizado del Voto 2001-013273 de las 11 horas 44 minutos del 21 de diciembre de 2001, ello por cuanto, la Ley 9544 elimina potestades legales otorgadas en la Ley Orgánica del Poder Judicial al Consejo Superior, pero además crea ex novo, nuevas funciones así como nuevos órganos y nuevas obligaciones a Corte Plena, todo modificando la organización y funcionamiento del Poder Judicial. Sostienen que, en las resoluciones analizadas y citadas en el Voto 2018-005758, se respalda la necesidad de realizar esa consulta obligatoria; por ello, afirman que no pueden sostener que cuando el contenido y obligaciones generadas a partir del artículo 167 constitucional, hacen referencia a la organización y funcionamiento del Poder Judicial, se refiera de manera exclusiva y excluyente a la afectación de la función jurisdiccional y no a la función administrativa. Señalan que hay otras sentencias mencionadas en la número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, que son importantes de tomar en cuenta, por ejemplo, la número 1998-005958 de las 14 horas 54 del 19 agosto de 1998 en la que la Sala entró a analizar el término “funcionamiento” -sin desarrollar el contenido del término “organización”-, y que, en su criterio, resulta indispensable para los cuestionamientos de inconstitucionalidad que están planteando:

“(…) los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran “a la organización o funcionamiento del Poder Judicial”, donde el término “funcionamiento” alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados” (destacados son del original).

Advierten que, según lo indicó la Sala en esa sentencia, los asuntos que obligatoriamente deben ser consultados, son los que se refieren a la organización y funcionamiento, lo que se extrae del artículo 167 constitucional y de inmediato entra a analizar el término “funcionamiento”, dejando de lado el análisis de lo que debe entenderse por “organización”; análisis que si se hace en las sentencias 2008-005179 y 2001-13273, ello por cuanto -en este caso concreto- no fue necesario, fundamentalmente debido a que la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data” al Título III de la Ley de la Jurisdicción Constitucional”, expediente legislativo número 12.827, se refería a una afectación en concreto de la función jurisdiccional del Poder Judicial, no a la función propiamente administrativa como lo es en el caso de la Ley 9544 (destacados del original). Argumentan que otro Voto es el número 2001-013273 mencionado en la sentencia número 2018-005758, según el cual:

“(…) los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieren “a la organización o funcionamiento del Poder Judicial”, donde el término “funcionamiento” alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte” (destacados del original).

Indica que ahí, nuevamente, se deja sin analizar, por innecesario en ese caso concreto, el aspecto de la “organización”, por ello no debe interpretarse de manera restrictiva el derecho de la Constitución en detrimento de la “organización” del Poder Judicial pues, como se indica en el Voto 2008-005179, debe evitarse toda intromisión indebida en dichos aspectos y ello se logra mediante el procedimiento establecido en el artículo 167:

“Debe tomarse en consideración que la norma constitucional de comentario armoniza dos aspectos de carácter fundamental, por una parte la independencia del Poder Judicial y por otra el ejercicio de la libertad de configuración o conformación del legislador, la cual no tiene otro límite que el Derecho de la Constitución”.

Agregan que quedan 2 Votos que ameritan mención: el número 1995-003063 de las 15 horas 30 minutos del 13 de junio de 1995 y el número 2002-004258 de las 9 horas 40 minutos del 10 de mayo de 2002 que, por tratar sobre el tema de Fondo de Pensiones y Jubilaciones del Poder Judicial, podría prestarse a mala interpretación. Añaden que la sentencia No. 1995-003063 resolvió acción de inconstitucionalidad contra la Ley Marco de Pensiones No. 7302 de 8 de julio de 1992 y, en ese caso, el Tribunal Constitucional recurriendo a lo indicado en el Voto 846-92 de las 13 horas 30 minutos del 27 de marzo de 1992, determinó que no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley porque no afectaba a los servidores judiciales y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167 de la Constitución Política. Argumentan que en ese Voto se determina la improcedencia de la acción en ese caso concreto, pero con fundamento en que no afecta a los empleados judiciales, y no por tratarse de un asunto relacionado con pensiones del Poder Judicial. Manifiestan que, además, si hacen una interpretación pro homine y pro libertate, caso contrario -como la Ley 9544- si hubiese afectado a los empleados judiciales, sí habría afectado el funcionamiento (no la organización que de nuevo se queda sin analizar), y por tanto si habría necesidad de esa consulta obligatoria, como lo es el caso de esta acción en la cual consideran que claramente se ven seriamente afectadas las personas que laboran en el Poder Judicial. Además, estiman que hay otro asunto, el de los aspectos laborales, que requieren la obligatoria consulta pues el artículo 156 constitucional establece que Corte Plena es el Superior de todos los funcionarios y empleados en el ramo judicial. Por otra parte, en lo que se refiere a la sentencia No. 2002-004258 de las 9 horas 40 minutos del 10 de mayo de 2002, indican que ahí la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4 de la Ley No. 7605 de 2 de mayo de 1996 en cuanto reforma los artículos 224, 226 y 236 incisos 1) y 2) de la Ley Orgánica del Poder Judicial No. 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33 inciso a) del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. Manifiestan que ahí, el Tribunal Constitucional descartó, entre otros temas alegados, la violación al artículo 167 de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la sentencia No. 1995-003063 de las 15 horas 30 minutos del 13 de junio de 1995. Añaden que este fundamento jurisprudencial -sentencia No. 1995-003063-, en la número 2002-004258, solamente hace referencia al término funcionamiento del Poder Judicial pero no al tema de su organización, el que ha sido definido de mejor manera en la sentencia número 2001-13273 del caso del Archivo Judicial, donde si consideró necesaria la consulta establecida en el artículo 167 constitucional. Estiman que, a partir de los Votos 2008-005179 y 2001-13273, se desprende que aspectos propiamente administrativos sí tienen que ver con la organización y funcionamiento del Poder Judicial y, por tanto, el proyecto que finaliza con la Ley 9544, sí debió ser consultado a Corte Plena en atención a lo preceptuado por el artículo 167 constitucional. Señalan que, en el caso de las otras resoluciones, de ellas no se extrae que la materia de jubilaciones y pensiones del Poder Judicial, deba ser excluida de la obligatoriedad de la consulta indicada, pero además el caso no resulta idéntico, pues en esta acción bajo estudio, sí hubo una modificación a la organización y funcionamiento del Poder Judicial, al eliminar potestades al Consejo Superior y, al mismo tiempo, crear un órgano al Poder Judicial. Recuerdan que ya Corte Plena indicó que ese tema si generaba la necesidad de la consulta por tener relación con la organización y funcionamiento del Poder Judicial. Señalan que la independencia funcional del Poder Judicial, reconocida en el artículo 9 y reforzada en el artículo 154, ambos de la Constitución Política, conlleva intrínsecamente -según el Derecho Administrativo como desde la perspectiva del Derecho de la Constitución-, la potestad del Poder Judicial representado por Corte Plena de darse su propia organización y que está siendo afectada con la imposición -creación- de un nuevo órgano denominado Junta de Administración del Fondo de Pensiones y Jubilaciones, pero además de eliminar potestades a otro órgano -Consejo Superior- y otorgar nuevas responsabilidades, todo sin haber dado la respectiva audiencia -en el caso del proyecto votado en primer y segundo debate- y posterior observancia de lo establecido en el artículo 167 constitucional al haber emitido Corte Plena criterio negativo (sobre el proyecto dictaminado en Comisión y que exigió una votación de al menos 2 terceras partes de todos los diputados y diputadas), todo con la finalidad de evitar, en especial, la intromisión de intereses políticos en su función, siendo que esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167 constitucional. Consideran que, por lo dicho, no se debe incurrir en el error de confundir o asimilar la función jurisdiccional en sentido amplio incluyendo la función auxiliar, con la función estrictamente administrativa; error que fue salvado en los votos analizados números 2008-005179 y 2001-013273, así como en el acuerdo de Corte Plena. 6) Incumplimiento del quórum de votación. Señalan que la normativa impugnada es inconstitucional por omisión de requisitos de forma o violación al debido proceso parlamentario, pero además hay otro aspecto que vicia aún más de inconstitucional el procedimiento de aprobación de la ley aquí cuestionada, y es que, según manifiestan, el texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 (que no fue el votado en primer debate), fue debidamente consultado a la Corte Suprema de Justicia y, al haber emitido un criterio negativo o disconforme, cambió o aumentó la cantidad de Diputados y Diputadas que debieron votar afirmativamente para aprobar la Ley, aumentando a 2 tercios de los 57 Diputados y Diputadas. Aducen que, pese a esa obligación, la votación recibida fue de 31 Diputados y Diputadas en primer debate, incumpliendo con ese requisito constitucional lo establecido en los artículos 119 y 167 Constitucionales. 7) Consulta obligatoria por parte de la Asamblea Legislativa sobre el proyecto dictaminado de 27 de julio de 2017. Señalan que los textos sustitutivos anteriores al votado en primer debate por el Plenario de la Asamblea Legislativa, fueron consultados a la Corte Suprema de Justicia, cumpliendo con el mandato de los artículos 167 constitucional y 126 del Reglamento de la Asamblea Legislativa respecto de la consulta obligatoria, siendo contrario al Derecho de la Constitución que ello no se diera con respecto al texto finalmente votado en primer debate y, posteriormente, en segundo debate. Argumentan que el resultado de moción aprobada el 27 de julio de 2017 -dictamen afirmativo de mayoría- por parte de la Comisión Especial que conocía del expediente 19.922, según oficio número AL-20035-OFI-0043-2017 de 31 de julio de 2017, fue puesto en conocimiento mediante audiencia conferida al Poder Judicial. Ahora bien, cuanto a este punto, los accionantes se cuestionan que, si no era obligatoria la consulta, ¿por qué la hizo el Poder Legislativo en los anteriores textos al votado en primer debate?. Manifiestan que no tienen ningún otro tipo de consulta que deba hace el Legislativo al Judicial en la formación de una ley, por tanto, al haber hecho la consulta, el Legislativo se obligó de manera automática a seguir lo establecido en el artículo 167 en relación con el 119, ambos de la Constitución Política. Manifiestan que, producto de la obligatoria consulta mencionada a la moción aprobada el 27 de julio de 2017 -oficio número AL-20035-OFI-0043-2017 de 31 de julio de 2017-, la Corte Suprema de Justicia emitió criterio, como consta en el oficio número SP-253-17 de 10 de agosto de 2017; criterio que es negativo o disconforme con el texto dictaminado, por lo que se agrava así el quórum de votación para requerir 2 tercios de los 57 Diputados y Diputadas. Sostienen que si hubo consulta, el Legislativo se debe atener a lo que respondió el Poder Judicial y a sus consecuencias. Consideran que lo anterior es evidencia clara de que, antes de la votación en primer debate, sí se cumplió con la obligación constitucional y el Poder Judicial fue debidamente consultado, emitiendo criterio negativo con relación al texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, todo ello antes de que dicho texto “final” fuera conocido por el Plenario, lo que cambia el requerimiento inicial al tramitarse en vía rápida -208 bis del Reglamento de la Asamblea Legislativa- y obliga entonces a que la votación requiera 38 votos. Indican que, para agravar más el vicio, el proyecto consultado sufre cambios en el plenario y esta vez no es consultado al Poder Judicial -vicio de inconstitucionalidad-, pero además se vota un proyecto inconsulto que, si se quiere subsanar indicando que el dictamen de mayoría de la Comisión sí se consultó, entonces debido al criterio negativo del Poder Judicial, no podía aprobarse con menos de 38 votos -vicio de inconstitucionalidad-. Estiman que se está frente a una paradoja: si se decide que hubo consulta -proyecto dictaminado en Comisión-, debió votarse con 38 votos mínimo y ello no fue así. Agregan que, si dicen que no hubo consulta por innecesaria -proyecto votado en primer y segundo debate-, cómo se justifican las anteriores consultas obligatorias?, siendo que, ni siquiera, se publicó el proyecto, sino 8 días después de votado en primer debate. Insisten en que el texto aprobado e inconsulto en primer debate por el Plenario Legislativo el 30 de octubre de 2017, es un texto sustitutivo introducido por moción vía artículo 137 del Reglamento de la Asamblea Legislativa, publicado en el Alcance No. 268 a la Gaceta Digital No. 212 de 9 de noviembre de 2017. Señalan que ese último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo dicho supra, al tenor de lo dispuesto en el artículo 167 en relación con el 119, ambos de la Constitución Política, en cuanto a la organización y funcionamiento del Poder Judicial, estimando que con ello se vicia de inconstitucional el procedimiento, contrariando el Derecho de la Constitución. Añaden que, dentro del mismo procedimiento regulado en el Reglamento de la Asamblea, el artículo 126 establece esa obligatoriedad en este tipo de consultas; obligatoriedad que genera la necesidad de respetar el procedimiento de votación agravado producto de la emisión de un criterio negativo como se había dado en este caso. 8) Falta de publicidad del texto sustitutivo aprobado por la Comisión Especial en sesión del 13 de septiembre de 2016. Indican que otro de los vicios gravísimos del procedimiento legislativo incumplido y que cargan de inconstitucional la aprobación atropellada de la Ley 9544, es que el texto sustitutivo del proyecto de ley, aprobado por la Comisión Especial en sesión del 13 de septiembre de 2016, no fue publicado. Argumentan que el procedimiento legislativo tendiente a aprobar una ley, es una ordenación jurídicamente necesaria y preestablecida de una sucesión de actos que deben realizarse en una secuencia temporal determinada y que, por tanto, resulta jurídicamente obligatoria. Añaden que, además de ese incumplimiento de lo que establece su interna corporis, la Asamblea no debe perder de vista que es un órgano representativo y no soberano, que además de cumplir con el íter procedimental previamente aprobado por ella misma, debe observar el Derecho de la Constitución y uno de los primordiales derechos es el de la publicidad que es producto directo de su carácter representativo. Recuerdan que la publicidad de los proyectos de ley se convierte en la única forma en que la actividad de los representantes populares, trasciende a la ciudadanía, operando así como una garantía constitucional que impide que el Parlamento actúe de espaldas a la ciudadanía, del pueblo, del soberano que les ha elegido y delegado en ellos su potestad de legislar; de este modo, la Asamblea Legislativa es un enlace entre el Estado y la comunidad política, pero teniendo claro que la soberanía reside en el pueblo, como lo establece el artículo 105 de la Constitución Política. Indican que, por lo anterior, se requiere cumplir con el principio de publicidad ya que su actuación (formación de la ley en este caso), debe necesariamente proyectarse hacia la comunidad ya que el pueblo debe tener conocimiento de lo que se pretende modificar y las condiciones en que se plantea esa modificación; sin embargo, se tiene que el proyecto elaborado por los Gremios del Poder Judicial en representación del colectivo judicial, plasmado en el texto sustitutivo aprobado el 13 de septiembre de 2016, nunca fue puesto en conocimiento mediante la obligatoria publicación. Consideran que, por esa razón, se está frente a un vicio esencial, aunado al hecho de que la norma aprobada por el Plenario que regula el procedimiento 208 bis para conocer el proyecto 19.922, previene de la obligatoriedad de la publicación, y al no hacerse, se atropella nuevamente el debido proceso legislativo o el obligatorio cumplimiento de la forma en el proceso de formación de las leyes. Advierten que, ni siquiera, existe una moción de dispensa de publicación del proyecto bajo análisis, pues de conformidad con las reglas previamente establecidas según el procedimiento legislativo aprobado por el plenario legislativo para la tramitación del expediente número 19.922 en Sesión Ordinaria No. 37 del 30 de junio de 2016 y con base en lo dispuesto en el artículo 208 bis del Reglamento de la Asamblea Legislativa, esa publicación deviene en obligatoria, tal y como se desprende del inciso h del punto 2 “Mociones de Fondo” del procedimiento en cuestión:

“h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto…” (destacados del memorial).

Consideran que no hay una interpretación diferente que se pueda dar a la clara literalidad de la norma aprobada para la tramitación del proyecto vía 208 bis del Reglamento de la Asamblea Legislativa, ya que el texto aprobado se constituyó como una nueva situación a analizar y discutir en el seno de la Comisión nombrada a ese efecto. Agregan que la no publicación, además de todo lo expuesto, contraviene las reglas preestablecidas para la tramitación vía rápida indicada, lo que en su criterio, violenta el debido proceso legislativo. Argumentan que, ciertamente, ese tampoco fue el texto que aprobó finalmente la Comisión Especial el 27 de julio de 2017 pero que sí fue publicado en el Alcance No. 189 de la Gaceta Digital No. 147 del 4 de agosto de 2017, lo que no elimina de ninguna manera el requerimiento de observar el principio de publicidad así como tampoco la obligación de observar las reglas acordadas en el Plenario Legislativo para la tramitación por procedimiento especial del proyecto en el trámite de formación de la Ley 9544, vía artículo 208 bis del Reglamento Legislativo. Puntualizan que no se debe pasar por alto que se está frente a un procedimiento mucho más restrictivo que el ordinario en el proceso de formación de la ley en el que deben tutelarse -de manera más puntillosa-, principios como el democrático y el de publicidad. Aducen que el hecho de que el texto en cuestión -el no publicado- no fuese el que finalmente fue aprobado por Comisión Especial el 27 de julio de 2017 -texto que sí fue debidamente publicado-, no subsana el vicio de no publicación del primer texto sustitutivo. Argumentan que esa posición garantista de la obligatoriedad en la publicación, ha sido sostenida por la propia Sala al evacuar Consultas Legislativas Facultativas de Constitucionalidad presentadas con respecto a la aprobación del proyecto de ley denominado Ley de Solidaridad Tributaria, expediente legislativo No. 18.261, emitiéndose la sentencia No. 2012-004621 de las 16 horas del 10 de abril de 2012:

“VIII.- Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del artículo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398-2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.

VIII.- VICIO ESENCIAL DEL PROCEDIMIENTO DE CARÁCTER EVIDENTE Y MANIFIESTO AL OMITIRSE LA PUBLICACION DE UN NUMERO SIGNIFICATIVO DE MOCIONES DE FONDO APROBADAS EN LA COMISION ESPECIAL QUE, EN CONJUNTO, MODIFICARON SUSTANCIALMENTE EL PROYECTO ORIGINAL. (…) De conformidad con el apartado I.2.h. del procedimiento especial aprobado ex artículo 208 bis “Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad”. En la presente consulta, es evidente que el abundante número de mociones de fondo aprobadas, en su conjunto, produjeron un cambio sustancial del proyecto original, (…) Tales mociones de fondo, ciertamente, versan sobre la materia regulada por el proyecto original y debidamente publicado, pero, su sumatoria, produce un cambio sustancial (…) Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original” (destacados son del memorial).

Argumentan que, a partir de lo anterior, el omitir la publicación indicada en el procedimiento especial establecido vía artículo 208 bis del Reglamento de la Asamblea Legislativa, en la tramitación del proyecto de la hoy Ley 9544 -por cuanto se omitió la publicación del texto sustitutivo que fue aprobado por la Comisión Especial el 13 de septiembre de 2016-, implica que se incurrió en un vicio esencial contrario al debido proceso legislativo para la formación de la ley, con violación del principio democrático y de publicidad, sin que la sustitución, en definitiva, de dicho texto, pueda convalidar el procedimiento. Agregan que hay otro voto de interés de la Sala, el número 2015-001241 de las 11 horas 31 minutos del 28 de enero de 2015, en el que se declaran inconstitucionales varios artículos de la Ley de Impuesto a las Personas Jurídicas No. 9024 de 23 de diciembre de 2011, por violación del principio de publicidad:

“Del análisis anterior y, particularmente de lo resaltado, se desprende que el texto sustitutivo no publicado introdujo dos sanciones que inmovilizan cualquier sociedad, tales como la no emisión de certificaciones de personería jurídica y la cancelación de inscripción de documentos a los morosos. En tal sentido se aprecia, igualmente, que en el texto sustitutivo se aprobaron cuestiones esenciales del impuesto, relativas a las sanciones, que no estaban previstas en el proyecto de ley original y que, por lo tanto, ameritaban garantizar el principio constitucional de publicidad. (…), en la formación de la ley en cuestión se violentaron requisitos o trámites sustanciales relativos a la publicidad del proyecto, principio que, como se ha venido reiterando, es básico en un Estado Constitucional de Derecho, más aún, cuando de materia tributaria se trata. En efecto, la omisión de realizar una nueva publicación del proyecto de ley, a fin de garantizar la publicidad del texto, así como, procurar la más amplia participación ciudadana e institucional, violentó un aspecto esencial en el procedimiento parlamentario, cuya omisión acarrea un vicio de inconstitucionalidad sobre el procedimiento legislativo” (resaltados del memorial).

Reiteran que, el texto no publicado en el proceso de la formación de la Ley 9544, variaba aspectos como edad de retiro, años de servicio, aporte obrero, años trabajados a tomar en consideración para el cálculo de la pensión o jubilación, de ahí la necesidad imperiosa de cumplir el requerimiento de la publicidad. Indican que si bien la anterior cita se refiere a una reforma tributaria y el Régimen de Jubilaciones y Pensiones del Poder Judicial no tiene ese matiz, lo cierto del caso es que es un tema que sí fue de interés para el país pues se mantuvo pendiente, y así se le dio cobertura por los medios de comunicación, siendo que, en cuanto a esta acción bajo estudio, el tema es de sumo interés para un grupo considerable de la población como es el de los empleados judiciales, siendo que, además, la ciudadanía en general tiende derecho a saber y conocer las razones por las cuales determinados sectores, grupos, sujetos, actividades, bienes y servicios, van a tener uno u otro sistema de pensión, cuál va a ser por ejemplo el aporte o participación económica del Estado como Patrono, además de los eventuales transitorios, sobre todo cuando está de por medio dinero público, con qué montos de pensiones iban a quedar los empleados judiciales, cuánto dinero del erario iba a seguir contribuyendo el Estado, si se limitaban y qué tanto lo que han mal denominado “pensiones de lujo” y quienes iban a ser los encargados de seguir administrando los dineros provenientes de este fondo. Argumentan que todos esos son aspectos que guardan un claro interés público y, sin embargo, sin justificación, no fueron debidamente comunicados a la población en general y, en particular, a la población judicial mediante la obligada publicación del proyecto aprobado el 13 de septiembre de 2016. Indican que otro voto relevante sobre el tema lo es el 2017-019636 de las 9 horas 15 minutos del 6 de diciembre de 2017, según el cual:

“En tal sentido, estas circunstancias y la obligación de publicar los proyectos de ley está contenido en el principio de publicidad que debe servir como vector de legitimidad de todo órgano representativo de la soberanía popular. En tal sentido, los parlamentos y sus actos son de gran valor y trascendencia para la vida democrática de los países, y deben permitirse ventilar sus actuaciones con transparencia y de cara al público, al ser éstos los centros políticos y jurídicos de una Nación, y el lugar primario en el que una sociedad desarticulada debe modularse. Ahora bien, la jurisprudencia de esta Sala ha sido decisiva al asignarle un peso importante al principio de publicidad como un requisito sustancial dentro del trámite legislativo, en lo que se refiere a la ley ordinaria y a la enmienda constitucional. (…).

Por otra parte, con claridad meridiana esta Sala ha explicado los alcances de la obligación de publicar proyectos de ley. Por resolución de la Sala No. 2002-3458” (destacados son del memorial).

Señalan que el ejercicio democrático y de transparencia de la publicación de los proyectos de ley no puede reducirse a interpretar que es un mero “trámite”, el que puede eventualmente obviarse y nada pasa. Consideran que la Asamblea Legislativa debe tener claro que su labor, ejercida por delegación del soberano, tiene que rendir cuentas, ser transparente y sujeta a escrutinio del pueblo, de ahí que no puede resolverse a la ligera que un texto sustitutivo al no publicarse, no causa mayor inconveniente en la formación de una ley. 9) Incumplimiento del procedimiento establecido en el Reglamento de la Asamblea Legislativa al omitir la publicación del proyecto. Argumentan que el artículo 116 del Reglamento de la Asamblea Legislativa establece la obligatoriedad de publicación de todo proyecto de ley, sin excepciones, con el que se puede publicar cualquier otro documento que el Presidente de la Asamblea considere. Añaden que el artículo 117 del mismo cuerpo normativo establece que al formar expediente original, el Departamento de Archivo enviará una copia para su debida publicación y es que todo esto guarda relación con el artículo 121 también del citado Reglamento, pues para poder incluir un proyecto de ley en el orden del día, deben haber transcurrido 5 días hábiles desde que se publicó en el Diario Oficial. Señalan que se tiene un proyecto de ley aprobado por la Comisión Especial en sesión del 13 de septiembre de 2016 que, para poder ser incluido en el orden del día de la Comisión Dictaminadora, debió ser publicado, pero no lo fue. Consideran que, evidentemente, se violentó y de manera grosera, el debido proceso legislativo o procedimiento en la formación de la Ley 9544, una interpretación contraria a lo indicado, vendría a abrir el portillo para que textos originales o sustitutivos que sean posteriormente modificados por otros textos sustitutivos no se tengan que publicar, violentando principios como el democrático y el de publicidad, pero sobre todo que se pueda obviar lo establecido en los artículos 116, 117 y 121 del Reglamento de la Asamblea Legislativa. Afirman que la falta de publicación es un vicio esencial en sí mismo considerado, por lo que el hecho de que, con posterioridad, dicho texto fuera sustituido por otro que sí se publicó, no tiene la virtud de subsanar el vicio evidenciado (destacados del memorial). 10) Publicación tardía del texto sustitutivo del proyecto de ley aprobado en Primer Debate por el Plenario Legislativo. Argumentan que otro vicio gravísimo relacionado con la publicación de proyectos y lo antes dicho, es que en el expediente legislativo No. 19.922, el texto sustitutivo aprobado en primer debate por el Plenario Legislativo el 30 de octubre de 2017, se publicó en el Alcance 268 a la Gaceta Digital No. 212 el 9 de noviembre de 2017. Además señalan que, el 1 de noviembre de 2017 se plantea por parte de un grupo de legisladores y legisladoras, consulta de constitucionalidad sobre el proyecto que derivó en la Ley 9544; o sea, que al presentar dicha consulta facultativa ante la Sala Constitucional, todavía no se había publicado el proyecto, a pesar de que ya había sido votado en primer debate, violentando con ello un trámite esencial del procedimiento legislativo pues la publicación del texto sustitutivo del proyecto de ley, debió haberse producido antes de su aprobación en primer debate. Afirman que haberlo hecho en las condiciones indicadas, violenta el principio democrático al impedir a la ciudadanía conocer, de previo a su aprobación, el texto sustitutivo del proyecto, debiendo analizarse qué sentido puede tener publicar de manera retroactiva un proyecto que ya fue votado en primer debate?. Consideran que esa publicación tardía tiene los mismos efectos de la no publicación pues impidió que la población conociera, de previo a su aprobación, el texto final del proyecto de ley y que pudiera fiscalizar debidamente la labor legislativa; posibilidad que se impidió por lo que es un vicio esencial en el procedimiento legislativo que no puede ser subsanado por la publicación posterior. Estiman que, nuevamente ese grupo de Diputados y Diputadas, olvidó que el ejercicio de su función es, o fue delegada por el soberano, a quien debe respetar y mantener informado, así como rendirle cuentas pues no puede votarse un proyecto de ley sin que el soberano sepa qué se va a votar. Finalizan solicitando que la Ley 9544 sea declarada inconstitucional en su totalidad por violaciones flagrantes al debido proceso legislativo o procedimiento de formación de la ley, así como también por ser contrario a los principios, normas y jurisprudencia constitucional.

44.- El 1 de junio de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández y la Magistrada suplente Marta Esquivel, plantean inhibitoria en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO, por considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad.

45.- En resolución de la Presidencia a.í. de la Sala Constitucional de las 11 horas 05 minutos del 5 de junio del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y a los suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

46.- Mediante oficio agregado al expediente electrónico el 11 de junio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6157 efectuado para la sustitución de los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, y la Magistrada Hernández López así como también del Magistrado suplente José Paulino Hernández Gutiérrez y de la Magistrada suplente Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Anamari Garro Vargas, Alejandro Delgado Faith, Rónald Salazar Murillo, Ana María Picado Brenes, Hubert Fernández Argüello, Alicia María Salas Torres y Jorge Araya García.

47.- El 13 de junio de 2018, las Magistradas suplentes Ana María Picado Brenes y Alicia Salas Torres, formularon solicitud de inhibitoria; igualmente lo hicieron los Magistrados suplentes Jorge Araya García el 14 de junio de 2018; Hubert Fernández Argüello el 15 de junio siguiente; Anamari Garro Vargas el 19 de junio posterior y Rónald Salazar Murillo el 28 de junio de 2018, todos en términos similares a lo que plantearon en el expediente principal número 18-007819-0007-CO.

48.- En resolución de las 9 horas 42 minutos del 28 de junio de 2018 la Presidencia a.i. de la Sala Constitucional dispuso tener por separados a los Magistrados suplentes Anamari Garro Vargas, Rónald Salazar Murillo, Ana María Picado Brenes, Hubert Fernández Argüello, Alicia Salas Torres y Jorge Araya García, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

49.- Mediante oficio agregado al expediente electrónico el 3 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6229 efectuado para la sustitución de los Magistrados y Magistradas Anamari Garro Vargas, Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Jorge Araya García y Ana María Picado Brenes, manifestándose que, debido a que la Sala originalmente había pedido 6 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que hay disponibles, siendo seleccionados Ileana Sánchez Navarro, María Lucila Monge Pizarro y Mauricio Chacón Jiménez.

50.- El 4 de junio de 2018 se apersonan los Magistrados suplentes Alicia Salas Torres, Ileana Sánchez Navarro, Lucila Monge Pizarro y Mauricio Chacón Jiménez y cada uno presenta solicitud de inhibitoria en este expediente, en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

51.- La Presidencia a.i. de la Sala Constitucional en resolución de las 9 horas 13 minutos del 5 de julio de 2018, tuvo por separados a las Magistrados suplentes Ileana Sánchez Navarro, Lucila Monge Pizarro y al Magistrado suplente Mauricio Chacón Jiménez del conocimiento de este proceso y dispuso que se comunicara lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

52.- Mediante resolución de la Presidencia a.i. de la Sala Constitucional de las 9 horas 50 minutos del 5 de julio de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado y José Paulino Hernández Gutiérrez, y se dispuso continuar con la tramitación del expediente.

53.- En resolución de la Presidencia de la Sala de las 11 horas 25 minutos de 5 de julio de 2018, se le solicitó a la Presidenta de la Asamblea Legislativa que, en el plazo de 3 días, remitiera a este Tribunal el expediente legislativo que corresponde a la aprobación de la Ley No. 9544 publicada en el Diario Oficial La Gaceta No. 89 de 22 de mayo de 2018.

54.- En documento de 12 de febrero de 2019, se apersona el Magistrado Fernando Cruz Castro para manifestar que en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

55.- Mediante resolución de las 12 horas 52 minutos del 12 de febrero de 2019, y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo-, tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitado para conocerlo al Magistrado Jorge Araya García, disponiéndose continuar con la tramitación del expediente.

56.- Se apersona el Magistrado suplente José Paulino Hernández Gutiérrez en documento presentado el 13 de febrero de 2019, para manifestar que se separa del conocimiento de este asunto por cuanto la Asamblea Legislativa ha designado al Magistrado titular en la plaza en la que se encontraba laborando y, por ende, al cesarse su nombramiento, ha desaparecido la causa sobreviniente por la cual se le había habilitado en la resolución de las 9 horas 50 minutos del 5 de julio del 2018. Solicita que se pasen los antecedentes del caso a la Presidencia de la Sala para que se proceda conforme a Derecho.

57.- La Presidencia de la Sala Constitucional en resolución de las 8 horas 10 minutos del 13 de febrero de 2019 y con sustento en las consideraciones externadas en el expediente principal en la resolución de las 14 horas 40 minutos del 3 de agosto de 2018, se dispuso tener por separado del conocimiento de este caso al Magistrado suplente José Paulino Hernández Gutiérrez, se declaró habilitada para conocerlo a la Magistrada suplente Marta Esquivel Rodríguez, y que se continuara con la tramitación del expediente.

58.- Sobre la Acción de Inconstitucionalidad No. 18-008267-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002482 de las 9 horas 41 minutos del 13 de febrero de 2019, se ordenó acumular la acción de inconstitucionalidad número 18-008267-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

59.- Mediante escrito presentado en la Secretaría de la Sala a las 10 horas 05 minutos del 30 de mayo de 2018, se apersona Álvaro Rodríguez Zamora, mayor, divorciado, jubilado, con cédula 1-477-319, vecino de Tres Ríos, en su condición de Presidente del Sindicato Asociación de Investigadores en Criminalística y Afines, para plantear acción de inconstitucionalidad en contra de la Ley 9544 in toto y el artículo 208 bis del Reglamento Interno de la Asamblea Legislativa. Solicita que, de manera interlocutoria, se suspenda la vigencia de la Ley impugnada en esta acción y se ponga transitoriamente en vigor el texto derogado, ello para evitar graves dislocaciones a la justicia y a la paz social al considerar que la entrada en vigencia de la normativa impugnada, pueda producir un éxodo acelerado de los más competentes funcionarios judiciales, lo que colocaría a la administración de justicia en una grave situación. Manifiesta que la legitimación para presentar este proceso se fundamenta en lo dispuesto en el artículo 75 párrafo 2 de la Ley de la Jurisdicción Constitucional en cuanto actúa en defensa de los intereses corporativos y colectivos de sus miembros o asociados. 1) Argumenta que el texto sustitutivo aprobado el 13 de septiembre de 2016, no fue publicado aunque posteriormente fue aprobado por la Comisión Especial el 27 de julio de 2017 y publicado el 4 de agosto de 2017; sin embargo, ese texto no fue el que se aprobó en primer debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance No. 268 a la Gaceta Digital No. 212 del 9 de noviembre de 2017 ya que, el que finalmente se aprobó en primer debate, fue un texto sustitutivo introducido por moción vía artículo 137 del Reglamento de la Asamblea Legislativa. Argumenta que el texto finalmente aprobado por el Plenario Legislativo, fue publicado cuando ya se había aprobado el proyecto en primer debate e, inclusive, varios diputados ya habían formulado la respectiva consulta legislativa ante este Tribunal. 2) Señala que este último texto no fue consultado a la Corte Suprema de Justicia -como considera que correspondía- según lo dispuesto en el artículo 167 de la Constitución Política porque contenía normas que se referían a la organización y funcionamiento del Poder Judicial. Aduce que la ley impugnada fue tramitada al amparo de un procedimiento legislativo ad-hoc por el Plenario en aplicación del artículo 208 bis del Reglamento Interno de la Asamblea Legislativa. 3) Inicia su alegato de las violaciones constitucionales que considera que contiene la Ley 9544, haciendo referencia al principio democrático y señala que es ahí donde se encuentra el fundamento del control de los vicios de los procedimientos parlamentarios, tanto de legislativo propiamente dicho como el de formación de los actos legislativos. Aduce que, en una democracia, el único mecanismo viable para determinar cuál es la voluntad ciudadana en cada caso, es abrir las puertas del diálogo, de la discusión pausada con apertura hacia las ideas de los otros pues, de lo contrario, se corre el riesgo de caer en una especie de “tiranía democrática” con violación flagrante del principio democrático; principio que debe necesariamente ser respetado por el procedimiento legislativo para que las leyes no sean el producto de la voluntad de unos pocos en perjuicio de las necesidades, inquietudes y aspiraciones de la mayoría. Argumenta que la jurisprudencia de la Sala ha definido el principio democrático en varias sentencias (2008-007687 de las 14 horas 50 minutos del 7 de mayo de 2008 y 2007-002901 de las 17 horas 30 minutos del 28 de febrero de 2007), como:

“(…) el parámetro que permite deducir el grado de proximidad que alcanza una determinada sociedad, en un momento histórico determinado, respecto del ideal y de su vocación, por acercarse al máximo posible al mismo. Como mínimo, el principio democrático exige respecto de los principios de participación y representación política -incluyendo todo lo que concierne al respeto de las minorías- base de nuestro sistema político. (…) son inconstitucionales las violaciones del procedimiento que constituyan lesiones al principio democrático, dirección ineludible de la actividad parlamentaria. Asimismo, constituyen infracciones sustanciales, los trámites legislativos que por acelerados o impetuosos, provoquen debates que quedan ayunos de un proceso reposado en calidad y reflexión, que además, adolezca de una amplia proyección de la actividad legislativa, tal como lo garantiza el artículo 117 de la Constitución Política. Además, se han considerado vicios sustanciales del procedimiento, la omisión de publicación y la omisión de realizar las consultas obligatorias establecidas constitucionalmente. En cuanto al primer aspecto, al ser la Asamblea Legislativa un órgano representativo de la comunidad nacional, la publicidad de los procedimientos parlamentarios es esencial, pues la soberanía reside en el pueblo y los diputados solamente son sus representantes (artículo 105 constitucional), por ello su actividad debe, necesariamente, trascender a toda la comunidad, a tal punto que algunos especialistas en Derecho constitucional lo definen como un órgano de publicidad” (ver sentencia número 2012-002675 de las 11 horas 52 minutos del 24 de febrero de 2012).

Argumenta que este principio impone a la elaboración de la ley y de los procedimientos parlamentarios, 3 requisitos básicos: 1) la regla de la mayoría, 2) la participación de las minorías y 3) la publicidad de los debates. Añade que, en cuanto a la participación de las minorías en el procedimiento legislativo, la jurisprudencia de la Sala ha precisado que “…el principio democrático, que en el contexto de un cuerpo fundamentalmente político y deliberante significa, también, la protección de los derechos de la minoría como criterio rector para evitar los abusos o la dictadura de las mayorías (…) El respecto a la minoría es un principio fundamental de nuestro ordenamiento constitucional, que proviene del concepto mismo de “democracia”, entendiendo que la nuestra se basa sobre un continuo contraste de opiniones organizadas que concreta el principio “gobierno de la mayoría con participación de la minoría, dentro de un régimen de libertad e igualdad” (ver sentencia 990-92 de las 16 horas 30 minutos del 14 de abril de 1992). Agrega que el principio democrático exige, en suma, que en la toma de las decisiones de los órganos legislativos se de participación a todos los implicados en condiciones de igualdad y libertad, garantizándose con eso que las diferentes fuerzas políticas representadas en el Parlamento puedan expresar y defender sus opiniones con el fin de influir en la decisión final. Aduce que, en última instancia, lo que el procedimiento legislativo persigue, es asegurar el cumplimiento del principio democrático dentro de una sociedad que lo ha adoptado como propio de sus instituciones políticas; principio que se constituye en el parámetro que permite establecer el grado de proximidad que alcanza una determinada sociedad, en un momento histórico determinado, respecto del ideal de una democracia perfecta, así como la intensidad de su vocación por acercarse lo máximo posible a él. 4) Ahora bien, en relación con lo anterior, hace referencia al principio de publicidad y manifiesta que una democracia sin publicidad no se puede concebir pues hace imposible el control político sobre los actos de los gobernantes, siendo que, dentro de los procedimientos parlamentarios, este principio tiene capital importancia y se articula en una serie importante de disposiciones constitucionales y reglamentarias. Argumenta que, en primer término, la regla es que las sesiones -tanto de las Comisiones como del Pleno- son públicas, salvo casos muy calificados, siendo que éstas últimas son retransmitidas en vivo por una estación concesionaria de la propia Asamblea Legislativa, salvo que se hayan declarado privadas; con ello se garantiza que todo el pueblo pueda tener conocimiento, de primera mano, acerca de los asuntos que se debaten en el órgano legislativo. Señala que las votaciones son públicas y si algún diputado lo solicita, se pueden hacer nominalmente y razonando el voto; las actas de sus sesiones son documentos públicos, al alcance de cualquier ciudadano que lo solicite, de forma que los afectados pueden presentar objeciones u observaciones a los proyectos de ley que se tramitan en el seno legislativo. Recuerda que la jurisprudencia de la Sala ha precisado que:

“no cabe duda a la Sala que el Reglamento de la Asamblea Legislativa, mediante la determinación de períodos de intervención de los diputados, tanto en el Plenario como en las comisiones, potencia una amplia participación de todos los sectores en el debate parlamentario y, además, cuando se ocupa de la participación proporcional de las minorías, no hace otra cosa, más que desarrollar lo que la Constitución Política garantiza en torno a los grupos cuantitativamente menores, también representados en su seno. Al ser la Asamblea Legislativa un órgano representativo de la comunidad nacional, la publicidad de los procedimientos parlamentarios es esencial, pues la soberanía reside en el pueblo y los diputados solamente son sus representantes (artículo 105 constitucional), por ello su actividad debe, necesariamente, trascender a toda la comunidad, a tal punto que algunos especialistas en Derecho constitucional lo definen como un órgano de publicidad. La proyección de la actividad parlamentaria hacia el exterior es una garantía constitucional (artículo 117 de la Constitución Política); de allí que las disposiciones del Reglamento que instrumentalizan esa proyección y la forma de hacerla efectiva, deba calificarse como un Derecho constitucional aplicado y su desconocimiento, como una violación esencial” (ver sentencia número 2000-003220 de las 10 horas 30 minutos del 18 de abril de 2000).

Agrega que la jurisprudencia de la Sala ha establecido que “la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático” (ver sentencia número 2006-009567 de las 16 horas 10 minutos del 5 de julio de 2006). Por su parte, señala que según la sentencia No. 2013-008252 de las 9 horas del 21 de junio de 2013, “deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados” “(…) Tal cualidad potencia a nivel constitucional el propósito fundamental de la publicidad: promover la intervención de la ciudadanía en las decisiones fundamentales del Estado. Si este fin no resulta vulnerado y se advierte que no se ha dado una verdadera obstaculización a la participación popular, entonces un error en la publicación no puede llegar a configurar por sí solo un vicio esencial del procedimiento legislativo” (ver sentencia No. 2013-008252 de las 9 horas del 21 de junio de 2013). Indica que, mutatis mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo; de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo (ver en tal sentido la sentencia No. 2018-003851 de las 11 horas 51 minutos del 7 de marzo de 2018). Manifiesta que, por tal razón, cuando durante el iter legislativo se violan los contenidos esenciales de tales principios, se producen vicios esenciales que son susceptibles de ser fiscalizados por medio de los diferentes procesos de control de constitucionalidad. Añade que la jurisprudencia de la Sala Constitucional ha precisado que “los requisitos o trámites sustanciales” de que habla la ley de la jurisdicción constitucional, son aquellos que exige la Constitución de modo expreso y más o menos acabado, puesto que hay que suponer que al precisarlos la Constitución y reservarlos para sí, insoslayablemente han de calificarse como ‘sustanciales” y los que, establecidos en el Reglamento Legislativo son deducibles del principio democrático (en general o en sus diversas manifestaciones particulares, como, por ejemplo, el pluralismo político o el principio de publicidad (ver sentencia 1994-003513 de las 8 horas 57 minutos del 15 de julio de 1994). Considera que en el procedimiento de aprobación de la Ley 9544, se ha vulnerado el principio democrático y el principio de publicidad y, en esa línea, manifiesta que el texto sustitutivo en la Comisión aprobado el 13 de septiembre de 2016 no fue publicado y aunque posteriormente el texto fue aprobado por la Comisión el 27 de julio de 2017 y publicado el 4 de agosto de 2017, lo cierto del caso es que, el dictamen aprobado en primer debate, fue publicado hasta el 9 de noviembre de 2017 cuando ya el proyecto se había aprobado en primer debate e, inclusive, ya la Sala conocía una consulta legislativa de constitucionalidad promovida por varios diputados. Argumenta que no puede ignorarse que la moción que regulaba el procedimiento de aprobación de la ley impugnada, establecía que el texto sustitutivo se debía publicar; por lo tanto, en la tramitación de la ley impugnada se produjo una transgresión a lo establecido en materia de publicidad en la moción que regulaba el procedimiento pues debe tomarse en cuenta que, por tratarse de la aplicación del artículo 208 bis del Reglamento Interno de la Asamblea Legislativa, esa moción constituía el Reglamento que regulaba la tramitación de ese proyecto de ley, pudiéndose concluir, sin mayor esfuerzo, que la exigencia reglamentaria de publicar los textos sustitutivos constituía un requisito esencial de ese procedimiento legislativo específico. Manifiesta que, dado que se trataba de un procedimiento legislativo abreviado, con mayor rigor debía respetarse el principio de publicidad de las normas discutidas o aprobadas. Indica que la debilidad de un procedimiento abreviado requiere una aplicación más rigurosa de la exigencia de publicidad, sin admitir una convalidación por la inobservancia de un requisito tan importante como la publicidad. Advierte que la publicidad de los proyectos de ley es la única forma en que la actividad de los representantes populares trasciende a toda la población pues representa la proyección de la actividad parlamentaria hacia el exterior, operando como una garantía constitucional que impide que el Parlamento actúe de espaldas a la ciudadanía. Argumenta que la falta de publicación de los citados dictámenes, acarrearon la nulidad de la Ley 6955 por 3 razones: 1) la norma que regulaba el procedimiento así lo exigía; 2) se trataba de textos sustitutivos que tenían que publicarse antes de discutirse y aprobarse ya fuera en Comisión o en el Plenario Legislativo; 3) la falta de publicación no permitió el conocimiento de la población del texto que se estaba discutiendo ese momento, impidiendo además que la ciudadanía pudiera realizar manifestaciones sobre lo que pretendía el Parlamento con el proyecto de ley, con lo cual se violó el principio democrático. Manifiesta que, en este caso, no se cuestiona si se omitió la publicación de unas normas que no variaban la esencia del proyecto pues lo importante es que, en este asunto, se omitió totalmente la publicidad durante el desarrollo de un procedimiento legislativo abreviado, con lo cual se violentaron frontalmente el principio de publicidad y el principio democrático que rige el procedimiento parlamentario. 5) Aduce que se ha dado una violación del artículo 208 bis del Reglamento Interno de la Asamblea Legislativa, lo que, a su vez, ha producido la vulneración de diversos principios constitucionales. Señala que en relación a la naturaleza del Derecho Parlamentario y los límites de la competencia de la Sala en materia de procedimiento legislativo, la Sala ha establecido nítidamente que:

“La misión fundamental de los Parlamentos es la de adoptar decisiones con la participación del conjunto de fuerzas políticas que representan los diversos sectores de la sociedad civil. El Derecho Parlamentario cumple una función instrumental a ese fin -aunque tiene también una función política-, de facilitar y ordenar ese proceso. Este derecho tiene la característica de que surge producto de la “interna corporis”, de la capacidad de auto normatividad y dinámica propia de los parlamentos. Su límite, desde luego, está en la Constitución, en los principios y valores del régimen ideológico en el que opera. Por esa razón esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar aquellos vicios sustanciales, que violen los principios valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad auto normativa y funcional del Parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado Ad hoc” (ver sentencia número 2007-009699 de las 10 horas del 4 de julio del 2007) (los resaltados son del memorial).

Agrega que la Sala también ha precisado que:

“la autodeterminación del Parlamento sobre su accionar interno -reconocida en forma reiterada por este Tribunal-, “interna corporis”, es una de sus potestades esenciales expresamente reconocida por la Constitución Política en su artículo 121 inciso 22), y que resulta consustancial al sistema democrático. El objeto perseguido con la atribución de la competencia para auto organizarse de la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna dentro de los parámetros que exigen los principios, democrático, de igualdad y no discriminación, con todos sus derivados (…) estima la Sala que no debe interferir con el derecho de autorregulación del Parlamento, salvo que, según se expuso, se viole alguno de los principios señalados, que en este caso concreto, implicarían la afectación del derecho de enmienda, entendido como el mecanismo de participación que tienen los diputados para influir durante el proceso formativo de la ley…El Parlamento tiene derecho en ejercicio de su propia potestad de autorregulación, de conciliar o equilibrar, frente a situaciones concretas, no sólo el derecho de enmienda, sino también los otros principios de rango constitucional que también vinculan su actuar, como el de respeto a las mayorías y el de razonabilidad, es decir, que la armonización de todos y cada uno de los principios constitucionales que deben coexistir durante el procedimiento legislativo, es una competencia propia del Parlamento y concretamente del Director del debate y de los diputados, y cabe suponer que tales funciones se realizan con apego al ordenamiento y sus principios” (ver sentencia número 2005-007961 de las 17 horas 50 minutos del 21 de junio de 2005) (los resaltados son del memorial).

Manifiesta que, dentro del ordenamiento parlamentario, el Reglamento Interno de la Asamblea Legislativa (RIAL) constituye el instrumento técnico por medio del cual el proceso político se transforma en proceso jurídico y por ello debe ser elástico pues constituye el núcleo dinámico de ese ordenamiento cuya finalidad es absorber y racionalizar las tensiones y las demandas del proceso político que se genera en el Parlamento. Señala que el concepto de flexibilidad del RIAL, debe combinarse con el de estabilidad en el sentido de que éste constituye un factor de institucionalización de las fuerzas políticas que operan en el Parlamento, lo que significa que responde a exigencias permanentes en las que el ordenamiento parlamentario encuentra su razón de ser y operar; exigencias que se refieren, por ejemplo, a que la mayoría actúe sin impedir a las minorías desarrollar su función, y éstas, por su parte, deben desenvolverse sin usurpar los poderes funcionales de la mayoría. Resume diciendo que los límites a la potestad de auto normarse de la Asamblea Legislativa, los constituye el respeto irrestricto de los principios constitucionales que fundamentan y legitiman el procedimiento legislativo: el principio democrático, el principio de publicidad y el principio constitucional de seguridad jurídica. Hace referencia a los límites al control de constitucionalidad de la “interna corporis” y manifiesta que la competencia de los tribunales constitucionales para controlar la legitimidad constitucional de la “interna corporis”, no implica violación del principio de la soberanía e independencia del Parlamento, pues tal control se ejercita en función de la manifestación externa del Poder Legislativo cuya actividad, dentro de un Estado de Derecho con Constitución rígida, está sujeta al contralor de constitucionalidad. Recuerda que el Derecho Parlamentario en el Estado democrático pluralista moderno está presidido por la tensión dialéctica mayoría-minoría, por lo que su principio rector no puede seguir siendo la garantía de unos ámbitos exentos de injerencias del Poder Ejecutivo, sino más bien la realización del valor superior del pluralismo político, garantizando la realización de los valores del respeto a las minorías y la publicidad de los debates; sin embargo, no se puede perder de vista que la potestad legislativa no es programada, en contraposición a la administrativa que se considera reglada. Añade que el control de constitucionalidad no puede invadir esa esfera intangible que tiene el Parlamento para desplegar los principios materiales consagrados en la Constitución, so pretexto de controlar el íter formativo de los procedimientos parlamentarios, especialmente, el legislativo. Manifiesta que, por consiguiente, sólo cuando el vicio revista tal gravedad que atente contra alguno de los contenidos esenciales en que se articula el principio democrático dentro de los procedimientos parlamentarios, puede la jurisdicción constitucional controlar la constitucionalidad de la interna corporis y siempre a condición de que los vicios imputados no sean subsanables por otros medios jurídicos al alcance del propio órgano legislativo. Argumenta que, en el caso concreto, el artículo 208 bis del RIAL, viola el principio democrático. Indica que es evidente que existe una diferencia sustancial entre una reforma del Reglamento, que busca ordenar y ajustar a los tiempos (bipartidismo-multipartidismo) en su quehacer cotidiano para que el Poder Legislativo sea más efectivo en la regulación de las situaciones que acontecen en el país, y la potestad de reformar un artículo específico para tramitar un proyecto de ley determinado. Señala que la Constitución no regula el procedimiento de reforma del RIAL por lo que este mismo reglamento es el instrumento normativo que regula los procedimientos de reforma de la “interna corporis”; sin embargo, tales procedimientos deben ser conformes con el Derecho de la Constitución, con el fin de garantizar la seguridad jurídica, el derecho de representación y la tutela del principio democrático dentro del procedimiento legislativo. Señala que derivada de su potestad de autorregulación contemplada en el artículo 121 inciso 22) de la Constitución Política, la Asamblea Legislativa tiene la potestad para establecer procedimientos especiales; sin embargo, éstos deben ser definidos de manera expresa y detallada, ya que, de lo contrario, aceptar la posibilidad de que la Asamblea aplique procedimientos especiales a la tramitación de reformas a su Reglamento y proyectos de ley, en los términos establecidos en el artículo 208 bis, sin que de previo se definan las reglas del procedimiento a seguir, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues los diputados tienen el derecho de conocer, previamente y con suficiente antelación, el procedimiento al cual se van a sujetar en la tramitación de un determinado proyecto de ley a fin de ejercer los mecanismos de participación y control correspondientes. Considera que la omisión de la Asamblea Legislativa en regular adecuadamente los procedimientos especiales que contempla la norma en cuestión, infringe el principio democrático; en efecto, el establecimiento de procedimientos especiales para tramitar determinados proyectos de ley, debe ser acorde con el Derecho de la Constitución, con el fin de garantizar la seguridad jurídica, el derecho de representación y la tutela del principio democrático dentro del procedimiento legislativo, pero que también se puedan ejercer los mecanismos de participación y control con eficiencia y eficacia. Afirma que dejar al arbitrio de una mayoría el procedimiento que se quiera aplicar en cada caso concreto, sin que de antemano sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio democrático en perjuicio de las minorías, en el tanto nada garantiza que, bajo el panorama propuesto, las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso. Manifiesta que lo sucedido en el procedimiento aprobado para conocer la ley impugnada, constituye un claro ejemplo de lo señalado ya que por tratarse de una moción de orden, en principio, no requiere ser publicitada con suficiente antelación, independientemente de su complejidad. Agrega que tampoco proceden las mociones para modificarla ya que tendría que tratarse de una propuesta nueva, para lo cual las otras fracciones cuentan con un tiempo sumamente corto, casi inmediato y una vez aprobada la moción por las mayorías, las minorías no tienen otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado; evidentemente esto violenta el derecho de enmienda y, por ende, el principio democrático. Argumenta que todo diputado ostenta el derecho constitucional de participar en el proceso de formación de la ley y así, influir en el contenido definitivo de ésta. Aduce que ciertamente la Asamblea Legislativa tiene potestad para disponer su reglamentación como sería establecer procedimientos especiales; no obstante, considera que el mecanismo jurídico que autoriza el artículo 208 bis del RIAL, resulta lesivo del principio de seguridad jurídica, del derecho de participación política, del de representación, así como del principio democrático y del derecho de enmienda de los diputados, en el tanto la omisión de reglamentar tales procedimientos con la antelación y la participación necesaria por parte de todos los diputados, hace nugatorios tales principios. En su criterio, el artículo 208 bis del RIAL viola el principio democrático cuyo respeto resulta esencial para cualquier examen de la conformidad o disconformidad con la Constitución, de cualquier norma o acto. Advierte que, sobre el particular, la Sala ha expresado de forma unánime que:

“lo que el procedimiento legislativo pretende es asegurar el cumplimiento del principio democrático dentro de una sociedad que lo ha adoptado como propio de sus instituciones políticas. Como mínimo, el principio democrático exige respecto de los principios de participación y representación política -incluyendo todo lo que concierne al respeto de las minorías- base de nuestro sistema político. (…) A partir de las anteriores observaciones, puede decirse que son inconstitucionales las violaciones del procedimiento que constituyan lesiones al principio democrático, dirección ineludible de la actividad parlamentaria. Asimismo, constituyen infracciones sustanciales, los trámites legislativos que por acelerados o impetuosos, provoquen debates que quedan ayunos de un proceso reposado en calidad y reflexión, que además, adolezca de una amplia proyección de la actividad legislativa, tal como lo garantiza el artículo 117 de la Constitución Política. Además, se han considerado vicios sustanciales del procedimiento, la omisión de publicación y la omisión de realizar las consultas obligatorias establecidas constitucionalmente” (ver sentencia número 2012-002675 de las 11 horas 52 minutos del 24 de febrero del 2012) (el resaltado es del memorial).

Argumenta que, en este caso, la norma impugnada permite que determinados proyectos de ley puedan ser tramitados mediante un procedimiento ad-hoc por acuerdo tempestivo de las mayorías y sin tomar en cuenta la participación de las minorías en cuanto a la determinación de sus regulaciones concretas. Considera que el artículo 208 bis del RIAL también transgrede el principio de publicidad y en ese sentido recuerda que el procedimiento de aprobación de la ley impugnada se creó mediante una moción de orden, las cuales, según el artículo 153 del Reglamento, pueden ser presentadas en cualquier momento del debate, procediendo a su discusión inmediatamente; no requieren ser anunciadas más que en el mismo momento de su presentación, lo que resulta insuficiente para que sea analizado previamente a su adopción por parte de todos los diputados. Estima que dejar al arbitrio de una mayoría el procedimiento que se quiera aplicar en cada caso concreto, sin que, de antemano, sea puesto en conocimiento de la totalidad de los miembros del Parlamento, causa una lesión al principio de publicidad en perjuicio de las minorías, en el tanto nada garantiza que, bajo el régimen y aplicación del artículo 208 bis del Reglamento Legislativo, las minorías no se vean afectadas en cuanto al ejercicio de los derechos constitucionales de sus representantes en el Congreso; una vez aprobada la moción por las mayorías, las fracciones minoritarias no tienen otra opción que sujetarse a la limitada participación que se les concedió en el procedimiento creado. Manifiesta que al amparo del artículo 208 bis del RIAL, la creación de un procedimiento ad-hoc para la tramitación de un determinado proyecto de ley no se publicita, sino que simplemente se lee en el Plenario y se vota de inmediato, sin que ni los diputados ni la ciudadanía tengan la posibilidad de estudiarlo, eventualmente hacerle observaciones para modificarlo así como garantizar que se respeten los derechos de los diputados a presentar mociones y que no se produzca una omisión de los derechos de las minorías durante su tramitación. Añade que el artículo 208 bis del RIAL viola el principio de seguridad jurídica y dentro de esa óptica, no cabe ninguna duda en cuanto a que, cuando el legislador no establece de manera clara las reglas procedimentales para aplicar lo pretendido en el artículo 208 bis, u olvida establecer regulaciones o prácticas legislativas idóneas al efecto, incurre en una evasión o incumplimiento de sus deberes constitucionalmente asignados. Manifiesta que la introducción de la norma citada al Reglamento en los términos en que se aprobó, supone que cada vez que las mayorías lo decidan discrecionalmente pueden, por vía de moción de orden, darle un trámite de excepción al proyecto de ley que se discute, quedando su conocimiento sujeto a procedimientos no establecidos en el Reglamento; todo lo cual desemboca en una situación de completa inseguridad jurídica. Considera que el artículo 208 bis del RIAL en los términos en que está redactado, supone que cada vez que las mayorías lo decidan discrecionalmente pueden, por medio de una moción de orden, establecer una regulación procedimental de excepción a un determinado proyecto de ley en trámite y que su discusión y eventual aprobación quede sujetos a procedimientos no establecidos en el Reglamento, todo lo cual produce una situación de inseguridad jurídica tanto para los diputados como para la propia Asamblea Legislativa, como institución parlamentaria. Resume diciendo que el artículo 208 bis del Reglamento de la Asamblea Legislativa, constituye un elemento de ruptura total con los principios señalados y permite que, mediante una moción aprobada por 2 tercios de los diputados, el Poder Legislativo pueda atentar contra su condición de órgano que garantiza la representación popular, según el diseño estructurado en el Título Noveno de la Constitución Política de 1949, en detrimento sustancial del principio democrático, del principio de publicidad y del principio de seguridad jurídica. Finaliza solicitando que se declare que el artículo 208 bis del Reglamento Interno de la Asamblea Legislativa es contrario al principio constitucional de seguridad jurídica, al principio democrático y al principio constitucional de publicidad, así como también que, en consonancia con lo anterior, la Ley 9544 in toto es inconstitucional por haberse tramitado al amparo de una normativa inconstitucional, así como también por violar el principio democrático y el principio de publicidad.

60.- El 1 de junio de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández y la Magistrada suplente Marta Esquivel, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

61.- En resolución de la Presidencia a.i. de la Sala -dictada por el Magistrado Jorge Araya García- de las 11 horas 15 minutos del 5 de junio de 2018 se dispuso tener por separados del conocimiento del asunto a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López, el Magistrado suplente José Paulino Hernández Gutiérrez así como la Magistrada suplente Marta Esquivel Rodríguez y comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

62.- Mediante oficio agregado al expediente electrónico el 11 de junio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6159 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez, por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Hubert Fernández Argüello, Alejandro Delgado Faith, Lucila Monge Pizarro y Anamari Garro Vargas.

63.- El 12 de junio de 2018 el Magistrado suplente Alejandro Delgado Faith y la Magistrada suplente Lucila Monge Pizarro; el 14 de junio de 2018 los Magistrados suplentes Mauricio Chacón Jiménez y Jorge Araya García; el 15 de junio de 2018 el Magistrado suplente Hubert Fernández Argüello; el 19 de junio de 2018 la Magistrada suplente Anamari Garro, el 21 de junio de 2018, la Magistrada suplente Lucila Monge Pizarro la reitera, y el 28 de junio de 2018 el Magistrado suplente Rónald Salazar Murillo, presentaron gestión de inhibitoria solicitando que se les separe del conocimiento de este expediente en términos iguales a como lo hicieron en el principal, número 18-007819-0007-CO.

64.- En resolución de la Presidencia a.i. de la Sala Constitucional -ejercida por la Magistrada suplente Ana María Picado- de las 8 horas 52 minutos del 10 de julio de 2018 y vista la razón de los Magistrados y Magistradas suplentes Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Hubert Fernández Argüello, Alejandro Delgado Faith, Lucila Monge Pizarro y Anamari Garro Vargas, se dispuso tenerlos por separados del conocimiento de este proceso y comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

65.- Mediante oficio agregado al expediente electrónico el 17 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6276 efectuado para la sustitución de los Magistrados y Magistradas suplentes Rónald Salazar Murillo, Mauricio Chacón Jiménez, Jorge Araya García, Alejandro Delgado Faith, Hubert Fernández Argüello, Lucila Monge Pizarro y Anamari Garro Vargas por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que la Sala originalmente había pedido 7 suplentes y únicamente hay 3 disponibles, por lo que el sorteo se realizó con los suplentes disponibles, resultando seleccionadas las Magistradas suplentes: Ileana Isabel Sánchez Navarro, Ana María Picado Brenes y Alicia Salas Torres.

66.- En oficios presentados en la Secretaría de la Sala el 18 de julio de 2018 se apersonan las Magistradas suplentes Alicia Salas Torres, Ileana Sánchez Navarro y Ana María Picado Brenes, presentan solicitud de inhibitoria en los mismos términos en que lo hicieron en el expediente principal número 18-007819-0007-CO.

67.- Mediante resolución de la Presidencia de la Sala Constitucional de las 14 horas 32 minutos del 3 de agosto de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, así como a los Magistrados suplentes José Paulino Hernández Gutiérrez y Marta Eugenia Esquivel Rodríguez para el conocimiento de este proceso. Además, se tuvo por separadas del conocimiento de este proceso a las Magistradas suplentes Ileana Sánchez Navarro, Ana María Picado Brenes y Alicia Salas Torres, disponiéndose continuar con la tramitación del expediente.

68.- Se apersona el Magistrado Fernando Cruz Castro mediante escrito presentado el 12 de febrero de 2019 para manifestar que en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

69.- Mediante resolución de la Presidencia de la Sala Constitucional -ejercida por el Magistrado Fernando Castillo- de las 13 horas del 12 de febrero de 2019, se conoce solicitud de inhibitoria del magistrado Fernando Cruz Castro y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se le tuvo por separado del conocimiento de este asunto y se declaró habilitado para conocer de este asunto al Magistrado suplente Jorge Araya García, disponiéndose continuar con la tramitación del expediente.

70.- En documento presentado el 13 de febrero de 2019, se apersona el Magistrado suplente José Paulino Hernández Gutiérrez para manifestar que se separa del conocimiento de este asunto por cuanto la Asamblea Legislativa ha designado al Magistrado titular en la plaza en la que se encontraba laborando y, por ende, al cesarse su nombramiento, ha desaparecido la causa sobreviniente por la cual se le había habilitado en la resolución de las 13 horas 48 minutos del 4 de julio del 2018. Solicita que se pasen los antecedentes del caso a la Presidencia de la Sala para que se proceda conforme a Derecho.

71.- La Presidencia de la Sala Constitucional en resolución de las 8 horas 16 minutos del 13 de febrero de 2019 y con sustento en las consideraciones externadas en la resolución de las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal (18-007819-0007-CO), se dispuso rechazar la gestión planteada por el Magistrado suplente José Paulino Hernández Gutiérrez y se le declara habilitado para conocer el presente asunto, disponiéndose además continuar con la tramitación del expediente.

72.- Sobre la Acción de Inconstitucionalidad No. 18-008292-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002484 de las 10 horas 01 minuto del 13 de febrero de 2019 se ordenó acumular la acción de inconstitucionalidad número 18-008292-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

73.- En escrito presentado en la Secretaría de la Sala a las 13 horas 20 minutos del 30 de mayo de 2018, se apersona Johnny Mejía Ávila, mayor, casado dos veces, abogado, vecino de Ciudad Colón de Mora de San José, con cédula de identidad número 9-044-592, en su condición de Presidente del Consejo de Administración y Óscar Enrique Umaña Chacón, mayor, casado una vez, licenciado en Administración de Negocios, con cédula número 3-0272-0995, vecino de Cartago, en su condición de Gerente General, ambos en representación de la Cooperativa de Ahorro y Crédito de Servidores Judiciales R.L. denominada Coopejudicial R.L. y manifiestan que plantean acción de inconstitucionalidad contra los artículos 224, 224 bis, 236 y 236 bis y Transitorio V de la Ley Orgánica del Poder Judicial reformados por la Ley número 9544 del 22 de mayo de 2018. Manifiestan que cuentan con legitimación para presentar esta acción de inconstitucionalidad como cooperativa que representa a todos sus asociados base, y por considerar que están en presencia de la defensa de intereses difusos de una colectividad que además recoge los intereses en general de sus asociados, ya sean funcionarios activos así como jubilados del Poder Judicial. En consecuencia, señalan que la legitimación que les asiste se desprende del artículo 75 párrafo 2 de la Ley de la Jurisdicción Constitucional. a) Manifiestan que el Fondo de Jubilaciones y Pensiones de la Corte Suprema de Justicia es autónomo, data de 1939, por lo que es anterior incluso al Régimen de Pensiones de la Caja Costarricense de Seguro Social y lo que aporta el patrono es lo que aporta cualquier otro en un régimen tripartita, no es un régimen con cargo al presupuesto nacional, es autosustentable y, al día de hoy, no tiene déficit financiero alguno. b) Manifiestan que, para impulsar la reforma al régimen de pensiones (Ley al día de hoy), se ha justificado que podría existir un déficit, utilizando como base un estudio actuarial que indicó que, si a 100 años no hay cambios en la forma como se administra el Fondo, estaría dentro de lo posible la generación de un déficit de aproximadamente cinco mil millones de colones, pero a la fecha de presentar esta acción, tal situación no existe. Agrega que el Fondo de Jubilaciones del Poder Judicial ha venido operando como un fondo, incluso si se quiere, en alguna forma, sustitutivo al de la Caja Costarricense de Seguro Social para los funcionarios judiciales, al no depender de éste ni del Estado, sino que es autónomo y autosuficiente. Argumentan que en el Poder Judicial solo hay 41 pensiones de más de 5 millones de colones, lo cual en un régimen de pensiones autónomo en el cual los funcionarios cotizan 4 veces más que el régimen de la CCSS durante toda la vida laboral y ya de pensionados cotizan el 11 por ciento de la jubilación, bien administrado, es difícil que zozobre. Añaden que el 70% de las jubilaciones que es el grueso, no rebasan el millón y medio de colones, concentrándose éstas entre los ¢350.000,00 y el ¢1.000.000,00 de colones, sin que se deje de lado que se cotiza 4 veces más que cualquier otro régimen de jubilaciones. Argumentan que, por esas razones, no es cierto que existan pensiones de lujo en el Poder Judicial y que éste sea un problema que se ha querido achacar al fondo. c) Manifiestan que, en el proyecto que se conoció como sustitutivo, hoy Ley de la República, se indica que las personas que ya están jubiladas deben pagar hasta un 35% de contribución solidaria al régimen; es decir, hoy día el jubilado del Poder Judicial contribuye con el 13% al Fondo, más el 5,5% a la CCSS, más el impuesto de renta que es de alrededor un 15%, lo cual hace que sea un régimen en el cual los jubilados del Poder Judicial aportan mucho más que los de otros regímenes. Agregan que, si además el jubilado judicial debe aportar el 35%, se está hablando de un porcentaje superior al 60% de la jubilación, lo que sería pauperizar las pensiones existentes porque se les quita más del 60% de la jubilación, lo cual evidentemente sería confiscatorio, aún cuando la Ley lo limitó a un 55%; a todo esto, debe agregarse además ¢5000 colones por cada ¢1000 para sostener el costo de la Junta Administradora del Fondo. Manifiestan que cualquier reforma al Fondo de Jubilaciones del Poder Judicial implica indefectiblemente una afectación a más de 16000 familias que, de una u otra forma, dependen y/o dependerán de ese Fondo. d) Señalan que una de las preocupaciones más grandes es que al tomarse como texto sustitutivo al proyecto de la Superintendencia de Pensiones, elaborado a parchonazos con el estudio actuarial que la Corte Suprema de Justicia había contratado a una empresa argentina llamada Melinsky & Pelligrinelli y Asociados, así como el estudio actuarial del Instituto de Investigación de Ciencias Económicas de la Universidad de Costa Rica, se llega a conclusiones distorsionadas de la realidad y del futuro inmediato. Argumentan que la Superintendencia de Pensiones siempre ha manifestado, y lo ha hecho enfáticamente desde el 2014, que desea unificar los regímenes de pensiones con miras a que se vayan sustituyendo por planes de capitalización individuales -como se hizo en Chile con el desastroso resultado que eso tuvo-, a pesar de que según afirman, eso implica modificación a derechos consolidados de los jubilados y afectación a derechos humanos fundamentales como lo es el derecho a la jubilación, además de que tiene visos de confiscatoriedad en sus patrimonios. Sobre motivos por los cuales plantean esta acción de inconstitucionalidad: 1) indican que la Ley Orgánica del Poder Judicial No. 7333 en su título IX regulaba el Régimen de Pensiones y Jubilaciones del Poder Judicial que es anterior al de la CCSS y auto sostenible; sin embargo, mediante Ley 9544 publicada en el Alcance 106 del Diario Oficial La Gaceta número 89 del 22 de mayo de 2018, se reformó esa Ley Orgánica del Poder Judicial del 5 de mayo de 1993 publicada en el Alcance de La Gaceta No. 124 de 1 de julio de 1993, convirtiéndose así en Ley el proyecto contenido en el expediente legislativo número 19.922, ello a partir del texto sustitutivo de la SUPEN. Argumentan que esa ley introduce cambios drásticos en el régimen anterior, transgrediendo en forma absoluta derechos y situaciones consolidadas en favor de los funcionarios judiciales activos y de los jubilados del régimen. Señalan que entre los cambios o diferencias importantes que se dan, se tiene:

• 1)se pasa de un cálculo de los últimos mejores 24 salarios a 240 salarios actualizados con índices de IPC e INEC.
• 2)se pasa de una edad de jubilación de 62 a 65 años o de 30 años a 35 servicio.
• 3)las personas ahora se jubilan con un 82% del promedio de los salarios.

Manifiestan que el cambio que puede verse a simple vista, es enorme, en detrimento de los funcionarios judiciales activos, debiendo tomarse en cuenta -por mencionar sólo un factor-, el enorme estrés y carga de trabajo a la que es sometido el funcionario judicial. Agregan que, en cuanto al artículo 224 bis, se tiene que son reglas totalmente nuevas que vienen a castigar de manera grosera, la pensión anticipada. Argumentan que los cambios se pueden esquematizar en el siguiente cuadro:

Reformas al Régimen de Jubilaciones y Pensiones del Poder Judicial Rubro Reforma Afectación Cálculo de la Jubilación 82% últimos 240 salarios Futuros jubilados Edad Jubilación Ordinaria 65 años Futuros jubilados Años de servicio (jubilac ordin) 35 años Futuros jubilados Edad mínima (jubil. anticipada) 62 años hombre y 60 años mujer Futuros jubilados Tope a las pensiones 4 millones de colones Futuros jubilados Contribución solidaria 35% a 55% de forma escalonada sobre el exceso al tope de pensión Jubilados actuales Cotización al Fondo 13% Servidores activos y jubilados (actuales y futuros) Señalan que otro tema que consideran totalmente confiscatorio es lo que se menciona en los artículos 236 y 236 bis de la Ley 9544:

“Artículo 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos:

• 1)Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente.
• 2)Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores.
• 3)Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS).
• 4)Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo.

En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución obligatoria establecida en la presente ley ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial.

(Así reformado por el artículo 1° de la ley N° 9544 del 24 de abril de 2018) Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%).

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

Señalan que esta modificación al régimen anterior, lo que hizo fue subir los porcentajes de contribución al régimen y esto, en su criterio, convierte a esta ley en totalmente confiscatoria, desproporcionada e injusta. Añaden que, en lo que se refiere al Transitorio VI, que dispone:

“TRANSITORIO VI.- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

• 2)Consideran que este período de transición entre la ley que introduce la reforma y la reforma, es muy corto y se hace desproporcionado, irracional y arbitrario, conculcando derechos consolidados de los funcionarios judiciales que deseen acogerse a su jubilación. En ese sentido, piden que se piense en una persona que tenga más de 25 años de trabajar y que, con la ley anterior, le quedaban 5 años para jubilarse pero que, con la reforma, ahora le faltan 10 años para llegar a los 35 años, es decir, se le duplica el tiempo de servicio para poder pensionarse con los derechos de la ley reformada. Consideran además que el tiempo del transitorio para poder aplicar por la ley reformada, debería ser mucho más amplio, por lo menos de 10 años. Estiman que la reforma al régimen de pensiones del Poder Judicial, contraviene de manera flagrante el principio de seguridad entendida como “la confianza que los ciudadanos pueden tener en la observancia y el respeto de las situaciones derivadas de la aplicación normas válidas y vigentes”, no siendo otra cosa más que la confianza de todo ciudadano en los ordenamientos válidos y vigentes, de forma tal que no puedan darse quebrantos a este sistema que diluya sus derechos. Agregan que uno de los principios fundamentales de todo ordenamiento jurídico constitucional democrático es la seguridad jurídica debido a la necesidad de que los ciudadanos sepan, en todo momento, a qué atenderse en sus relaciones con el Estado y con los demás particulares; debe entenderse como la confianza que los ciudadanos pueden tener en la observancia y respeto de las situaciones derivadas de la aplicación de normas válidas y vigentes, se asienta sobre el concepto de predictibilidad, de manera que cada uno sepa de antemano las consecuencias jurídicas de sus propios comportamientos. Añaden que este parámetro de constitucionalidad que impide la irretroactividad de normas sobre derechos de residencia (conforme al convenio 102 de la OIT) en regímenes de pensiones, forma parte del ordenamiento jurídico y, de esta manera, significa protección y confianza en todos los ciudadanos que mantengan períodos de estancia en regímenes de pensiones. Argumentan que, en el caso de la reforma del Fondo de Jubilaciones y Pensiones del Poder Judicial, esta variable se agrava pues se trata de un fondo obligatorio al que deben someterse los trabajadores del sector, independientemente de su voluntad, o sea, es el camino a través del cual el Estado ha decidido que se proteja su derecho fundamental a un retiro digno y justo. Añaden que, en este marco de ideas, las variaciones que impone el proyecto, quebrantan esa confianza y seguridad de los funcionarios judiciales en atención a la abrumadora diferencia que se plantea en las reformas, aumentando la edad de retiro, monto de la cotización y cálculo de la pensión. 3) Indican que, aunado a lo anterior, en su criterio, la aplicación de la nueva legislación resulta abusiva y arbitraria (otra de las finalidades del principio de seguridad jurídica), en el tanto agrava las condiciones socioeconómicas de los trabajadores judiciales a su antojo y sin reparo en sus derechos y expectativas, esto por cuanto se trata de un régimen obligatorio que, liberado de cualquier control de seguridad jurídica, permitiría la variación de condiciones de las formas más indiscriminadas, independientemente de la voluntad de los trabajadores. Señalan que esta obligatoriedad en el régimen, obliga al Estado a ser mucho más celoso en las variaciones que se hagan de este tipo de regímenes que, en el caso concreto, implican la estabilidad y futuro de más de 16.000 familias costarricenses. Advierten que en el caso de los funcionarios activos que están cerca de su jubilación y los jubilados, la situación es sumamente gravosa ya que han elaborado un proyecto de vida, adquiriendo compromisos económicos a largo o mediano plazo y, de repente, contando con esa seguridad jurídica ven, de forma abrupta, modificadas sus condiciones con afectaciones severas en su esfera patrimonial que, en el caso de las personas jubiladas, se ve aumentada por una angustia, frustración e impotencia de poder hacer algo al respecto, en la época de su vida en que deberían estar tranquilos y seguros con su jubilación, tras toda una vida de entrega y trabajo para la institución. Advierten que la propia Sala Constitucional ha reconocido el derecho a la jubilación como un derecho fundamental integrado dentro del derecho a la seguridad social: “(…) La Sala ha señalado reiteradamente que este derecho supone que los poderes públicos mantendrán un régimen público de seguridad social para todos los ciudadanos en el más alto rango, de manera que garantice la asistencia y brinde las prestaciones sociales suficientes ante situaciones de necesidad para preservar la salud y la vida. El ámbito subjetivo de aplicación del derecho de la seguridad social incorpora el principio de universalidad, pues se extiende a todos los ciudadanos, con carácter de obligatoriedad. El ámbito objetivo asume el principio de generalidad, en tanto protege situaciones de necesidad, no en la medida en que éstas hayan sido previstas y aseguradas con anterioridad, sino en tanto se produzcan efectivamente. Además, incorpora los principios de suficiencia de la protección, según módulos cuantitativos y cualitativos y de automaticidad protectora, lo que se traduce en la adecuada e inmediata protección en materia de enfermedad, invalidez, vejez y muerte (…). En consecuencia, los principios del Derecho a la Seguridad Social, son, los de universalidad, generalidad, suficiencia de la protección y solidaridad social” (ver sentencia número 3483-2003 de las 14 horas con 05 minutos del 2 de mayo del 2003). 4) Argumentan que la Sala Constitucional también se ha pronunciado sobre la importancia de establecer claramente varios principios constitucionales como son la solidaridad, la intangibilidad relativa del patrimonio, la proporcionalidad y razonabilidad. Alegan que el principio de solidaridad se ve gravemente afectado por la Ley impugnada ya que ésta, a un sector específico de la población -el afectado por la Ley en su totalidad-, le varía las circunstancias con una reforma no progresiva, sino disruptiva, que genera pobreza así como menoscabo patrimonial. Aducen que la Sala es contundente al reconocer el derecho constitucional y fundamental a la jubilación a favor de todo trabajador, que pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna (sentencia número 1997-000184 de las 9 horas 42 minutos del 10 de enero de 1997) y ha manifestado además que “el derecho a la jubilación no puede limitarse, condicionarse o suprimirse irrazonablemente o desproporcionadamente, no importa si por circunstancias anteriores o posteriores a su adquisición, consolidación, reconocimiento o goce efectivo. En este sentido, es preciso observar que ese derecho deja de ser una simple expectativa y se adquiere desde que se ingresa al régimen jubilatorio, al menos como derecho general de pertenencia al mismo, y desde el instante en que el beneficiario se encuentra en las condiciones de hecho previstas para recibir el beneficio, como derecho a la prestación actual, sin que sea necesario que la haya reclamado, ni mucho menos declarado el reconocimiento o comenzado a percibirla. (…)” (ver sentencia 1147-90 de las 16 horas del 21 de septiembre de 1990). Consideran que, así las cosas, el derecho a la jubilación como derecho humano en las condiciones que lo han venido disfrutando los jubilados, no puede modificarse por haberse constituido en derecho adquirido; pero además, la reforma debió haberse hecho de forma razonada, proporcionada y no de forma disruptiva, abrupta, desproporcionada y abusiva de los derechos de los funcionarios judiciales y de los jubilados del régimen. 5) Añaden que la Ley que solicitan que se declare inconstitucional, en su criterio, además es violatoria de los principios de razonabilidad y proporcionalidad por cuanto, primero rebaja el salario que será tomado para establecer el monto de la pensión (aumenta la edad y el tiempo de servicio) y una vez establecido el monto de la jubilación, es sobre ese monto y no sobre el salario bruto usado para el cálculo de la jubilación, que se aplican todos los rebajos y contribuciones especiales, llegando a alcanzar éstos hasta un 45% del monto bruto de la jubilación, lo que hace que estos rebajos y contribuciones especiales, sean irrazonables y absolutamente desproporcionados, contrariando los tratados de derechos humanos y de derecho internacional, suscrito por Costa Rica. Reconocen que existe el principio de mutabilidad del ordenamiento, pero éste debe ser progresivo, proporcionado y razonable, sobre el cual la Sala ha señalado “(…) que nadie tiene un “derecho a la inmutabilidad del ordenamiento”, es decir, a que las reglas nunca cambien. Por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; lo que significa es que -como se explicó- si se ha producido el supuesto condicionante, una reforma legal que cambie o elimine la regla no podrá tener la virtud de impedir que surja el efecto condicionado que se espera bajo el imperio de la norma anterior. Esto es así porque, se dijo, lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla” (ver sentencia número 2765-97 de las 15 horas 03 minutos del 20 de mayo de 1997). 6) Manifiestan que, en su criterio, la reforma es inconstitucional en sus artículos 224, 224 bis, 236 y 236 bis por cuanto modifican situaciones consolidadas de los funcionarios activos y jubilados del Poder Judicial, quienes ven menoscabados sus derechos de una forma abrupta a través de una reforma disruptiva, desproporcionada e irrazonable, generándose una desmejora en el cálculo de los salarios base para determinar su jubilación, incrementa el tiempo de servicio, la edad de jubilación y los montos de los rebajos y contribuciones especiales por encima de cualquier otra carga impositiva en el ordenamiento costarricense, calculando además el límite máximo de rebajos en un 55% de la jubilación bruta y no de los salarios brutos utilizados como base para el cálculo de la jubilación. Insisten en que la reforma es desproporcionada, irrazonable, abrupta y que coloca en situación de abierto menoscabo patrimonial a sus integrantes, afectando la continuidad de proyectos de vida, la dignidad del trabajador y la seguridad jurídica. 7) Añaden que el artículo 40 de la Constitución Política contiene el principio de no confiscación que, en la materia tributaria es donde se ha conseguido su mayor desarrollo, y que constituye un límite al ejercicio del poder tributario, vinculado con los principios de capacidad contributiva y progresividad, al igual que representa un mecanismo de protección del derecho a la propiedad privada. Manifiestan que, en el caso concreto, el proyecto del expediente legislativo No. 19.922 tiene contenido de confiscatoriedad en el patrimonio de los servidores judiciales jubilados y de los que se jubilarán. Señalan que la reforma impone condiciones confiscatorias en cuanto al cálculo de la pensión, toda vez que ya no será sobre un 100% de los salarios devengados en los últimos 24 meses, sino que pasa a ser el 82% sobre los últimos 240 salarios; es decir, una diferencia de cálculo de 18 años y un porcentaje de diferencia de 18%, siendo que, al resultado de ese residuo, debe aplicarse una cotización aumentada en un 2%, más las cargas de ley por renta, fondo de pensiones (porque se sigue cotizando), y CCSS, quedando un disponible por debajo del 53% de la base de cálculo. Consideran que esta variación es confiscatoria y contraria a la Constitución ya que somete a los funcionarios activos y a los jubilados del Poder Judicial a una pena de confiscación, prohibida expresamente por el artículo 40 constitucional señalado. Señalan que las medidas propuestas por la reforma llevan un rebajo en las condiciones de la pensión de los trabajadores judiciales de cerca de un 50% por ciento de su derecho. Indican que la reforma, como ha quedado plasmada en la Ley impugnada, vulnera el artículo 40 constitucional, impone una pena confiscatoria, especialmente a los ya jubilados del Poder Judicial aunque también a los activos, que además resulta lesiva del principio de igualdad y de la capacidad contributiva, pidiendo que sea declarada inconstitucional. 8) Aunado a lo dicho hasta acá, consideran que el Transitorio VI de la Ley impugnada, también es inconstitucional por estimarlo lesivo de los principios de igualdad, razonabilidad y proporcionalidad. Recuerdan que, según ese Transitorio, los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la jubilación según lo establecía el texto del título IX de la Ley 7333 de 5 de mayo de 1993, dentro de los 18 meses posteriores a la promulgación de esa Ley 9544, podrán pensionarse al amparo de las disposiciones establecidas en la Ley anterior 7333. Argumentan que, en Costa Rica, para el análisis del derecho a la jubilación, es esencial la comprensión y el dimensionamiento que se ha realizado del Convenio 102 de la OIT, el cual ha sido de amplia discusión en el país y en la Sala Constitucional. En tal sentido, manifiestan que hay 3 fallos de la Sala que deben ser mencionados: 5261-95 de las 15 horas 27 minutos del 26 de septiembre de 1995; 6842-99 de las 8 horas 45 minutos del 3 de septiembre de 1999 y 2000-000673 de las 9 horas 48 minutos del 25 de enero de 2000, los que, junto con criterios de la Procuraduría General de la República, giran en torno al concepto de residencia que establece el Convenio 102 en el numeral 29 sobre la forma en la que se interpreta el concepto de residencia; concepto que, en un primer momento, se integró de manera progresiva y respetuosa de los derechos de los trabajadores, de forma tal que la residencia se entendió como un lapso que permite mantener las condiciones de un trabajador en un régimen de seguridad social, siendo que, superado ese plazo, no le serían aplicables las variaciones que se dieren. Aducen que ese criterio progresivo, respetuoso de los derechos humanos y consciente del principio de razonabilidad y proporcionalidad, permitió que muchas reformas debieran de respetar tales plazos o estancias y que no pudieran ser violentados, como es el caso de la Ley 7531 referida al régimen de pensiones de los maestros. Añaden que, pese a esta circunstancia, la Sala Constitucional aclaró su criterio en el año 2000 y lo hizo indicando que el término “residencia” hace referencia a las disposiciones generales del mismo tratado en el que refiere residencia como lo establece el numeral b: “el término residencia significa la residencia habitual en el territorio del Miembro y el término residente designa la persona que reside habitualmente en el territorio del Miembro” (destacados son del memorial de la acción). Señalan que este abordaje de la Sala Constitucional estableció que la pertenencia a un régimen por el período de 20 años, no tenía protección supra constitucional en el tratado, sino que se trataba de un concepto destinado a la ubicación territorial. Indican que alguna corriente de pensamiento constitucional costarricense ha querido imponer la obligatoriedad a la Sala de razonar las diferencias de criterio que este principio pudiera ocasionar, ya que se venía interpretando el artículo 29 del Convenio 102 de la OIT de manera progresiva y proteccionista hasta el año 99, y en el 2000 se dio una variación de criterio que eliminó la protección de la estancia por más de 20 años en regímenes jubilatorios. Agregan que el Convenio 102 de la OIT procura la tutela de los trabajadores como cotizantes de regímenes de seguridad social -por ejemplo fondos de pensiones-; protección que se dimensiona de acuerdo a una serie de condicionamientos de cada trabajador para adecuar, de la manera, más racional y proporcional sus derechos frente al Estado, e incluso, frente a otros trabajadores, de forma tal que existan plazos y términos que diferencian entre distintos tipos de permanencia y estancia en regímenes. Estiman necesario citar este artículo:

“Artículo 29 1. 1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

(a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia; (…)” Aducen que el numeral 29.1.a) garantiza la prestación (o pensión) cuando se hayan cumplido 30 años o 20 años de residencia; sin embargo, se cuestionan qué debe entenderse por 20 años de residencia y, sobre todo, cómo impacta esto en la garantía para el trabajador beneficiado con esta disposición?. Sobre el particular, aducen que lo que establece este término es un plazo razonable de protección para el trabajador y que lo diferencia de otros, en virtud de la permanencia a un sitio, a un lugar o territorio (usando la misma terminología del convenio) que le permite tener garantizada su prestación (pensión). Indican que, sobre el particular, le proponen a la Sala que, en atención a la no vinculatoriedad de sus fallos, se analice con detalle, de manera progresiva, razonable y proporcional el contenido del término residente y cómo al comprender el dimensionamiento temporal que establece esta norma, puede descubrir una protección por pertenencia, ligamen o estancia que no debe soslayarse; caso contrario, un extranjero residente por 20 años, podría ver garantizada su prestación en un régimen de pensiones por su “residencia” por 20 años en el país a diferencia de un nacional en la misma condición. Consideran que esta diferencia odiosa no la procura el convenio, por el contrario, lo que establece es un parámetro de irretroactividad consciente de que 2 décadas implican una vinculación al sistema distinto a cualquier otro. Añaden que, en caso de que la Sala Constitucional sostenga sus posiciones respecto del término residencia y la forma de interpretarlo, debe razonarse sobre un segundo factor de inconstitucionalidad del Transitorio VI que sería por quebrando del principio de razonabilidad y proporcionalidad. 9) Consideran necesario hacer referencia al principio de supremacía constitucional que, para muchos, es una expresión del Poder Constitucional sobre la Ley ordinaria, de manera tal que la Constitución como Super Ley, es superior a todo el ordenamiento ordinario, siendo que su naturaleza y contenido solo puede ser variado por un procedimiento complejo denominado especial agravado. Aducen que, dentro de ese principio, se encuentra el de razonabilidad, como un sub principio, cuya finalidad será un parámetro de valoración de los actos jurídicos y su existencia debe ser orientada a respetar los valores expresados en la Constitución. Sobre el particular, recuerdan que la Sala ha señalado que el principio de supremacía constitucional “impone la observancia preceptiva del principio de razonabilidad y proporcionalidad, bajo el cual se deben examinar las disposiciones dictadas por el Legislador” (ver sentencia 1749-2001 de las 14 horas 33 minutos del 7 de marzo de 2001). Argumenta que, en esta materia, dicho principio exige que las normas tengan por fin la prevención del denominado “conflicto u oposición de intereses” para asegurar la imparcialidad de los servidores de la Administración; asimismo, los medios que utilice el Estado para evitar el mencionado conflicto no deben colocar a su destinatario en una situación tal que haga nugatorio el goce de sus derechos fundamentales. Afirman que, así las cosas, las leyes deben ser instrumentos o medios adecuados (razonables) a los fines establecidos en la Constitución; la necesidad de cualquier acto de ajustarse al sentido constitucional es la que permite hablar del principio de razonabilidad derivado del principio de supremacía de la Constitución, con lo cual, cuando el jurista ubica una norma que no está conforme con los principios constitucionales, es claro que deberá hacer el juicio sobre su razonabilidad en aras de determinar su irregularidad o no con la Constitución de acuerdo con las exigencias del principio de supremacía constitucional. Indican que la razonabilidad está determinada para evitar aquellos actos abusivos del Estado que contravengan los principios establecidos en la Constitución; así entonces, la supremacía constitucional se convierte en un garante de la Constitución Política, no sólo como conjunto de normas de jerarquía superior, sino como un orden de principios que refleja el sentir social de determinado pueblo. Señalan que, partiendo de que el principio de razonabilidad tiene rango constitucional y no puede estar exento de análisis en cada decisión de Estado o formación de ley, se debe entender que la disposición del Transitorio VI arremete de manera flagrante, directa y grosera contra dicho principio, sobre todo en cuanto a la idoneidad de la medida y en ese sentido afirman que, cuando la medida solamente procura palearse, afectando los derechos de unos pocos, resulta inidónea y por lo tanto, desproporcionada. 10) Argumentan que la reforma al régimen de pensiones del Poder Judicial partió de la antesala de un informe actuarial que señala la no viabilidad del régimen desde la perspectiva económica; informe que, basado en rendimientos pesimistas lejanos de la realidad del fondo de los últimos 10 años -en los que superó los rendimientos del 3%-, refiere a una realidad matemática que en la lógica de la reforma, demuestra falencia del régimen y además negligencia en su control. Manifiestan que esta negligencia o descuido en la creación o administración de un fondo inviable, tiene relación directa con el Estado y sus intendencias que no procuraron resolver, alertar y tomar las medidas correspondientes en tiempo; medidas que, en su criterio, en la lógica de la reforma, son imperativas, siendo esa imperatividad solamente asumida por los trabajadores, nunca por los administradores del fondo o el Estado y, por ello, la medida resulta inidónea ya que con opciones distintas que comprendan al Estado, se puede lograr la viabilidad del fondo. Estiman que la idoneidad de la medida cae en el test de razonabilidad cuando se pueden procurar otras que, balanceando sus efectos, pueda procurar el mismo resultado deseado, señalando que este es el primer defecto del que adolece la reforma y el Transitorio VI. Añaden que, además, debe analizarse la medida propiamente dicha en cuanto a su inidoneidad y falta de proporcionalidad en sentido estricto. Reconocen que el tema de pensiones no ha sido pacífico en Costa Rica así como también que el ordenamiento responde a realidades en las cuales la mutabilidad lo hace flexible, adaptable y conveniente para regular la vida; sin embargo, estiman que ese principio de mutabilidad del ordenamiento jurídico no puede ser ciego al principio de razonabilidad y proporcionalidad, siendo que, en el caso del Transitorio de cita, consideran que existe una diferenciación odiosa, irrazonable y sobre todo desproporcionada entre las personas que tienen 18 meses para adquirir su derecho a la pensión y los demás, lo que hace que se encierre funcionarios que tienen un día de trabajo y otros que tienen 28 años, 3 meses y 29 días de trabajar para la institución, en una sola “burbuja” de efectos jurídicos idénticos, con lo cual, personas en condiciones considerablemente distintas, deberán asumir la reforma con el mismo peso. Agregan que también, considerar en una misma variable a diferentes tipos de trabajadores en condiciones de permanencia a un régimen tan disímiles, con diferencias de hasta por décadas, es contrario también al principio de igualdad que tiene un correlativo en el principio de razonabilidad. Señalan que la relación del principio de razonabilidad y el principio de igualdad plantea como problema esencial el discernimiento de una decisión normativa y cómo ésta permitiría que un tratamiento desigual sea razonable; interrogante que consideran que está sin resolver en el Transitorio VI pues su fundamento es inconsistente, o incluso gravoso, en forma desproporcionada, para un sector de la población judicial, sin que exista gradualidad alguna que permita aplicar la normativa de una manera respetuosa a los estadíos de permanencia al régimen. 11) Consideran que estos derechos deben y tienen que estar por encima del principio “pro régimen” del que tanto se habla en estos días y que deshumaniza la realidad y finalidad propia de la pensión. Consideran que el principio pro régimen no sólo puede entenderse respecto de las medidas para palear negligencias o deficiencias de sus administradores, sino de cómo esas medidas deben ser soportadas por el mayor responsable de estas negligencias; por el contrario, la normativa y el transitorio en un afán de sostener un régimen que soslaya las responsabilidades estatales, impone el soporte a un grupo o generación de trabajadores que deben soportar condiciones que incluso, entre ellos, son tan disímiles que pueden ser separados por décadas. Manifiestan que, en el caso del Transitorio VI, la diferenciación que contiene es gravosa y desmedida porque los sujetos que comprende, son considerablemente disímiles en atención al tiempo de pertenencia al régimen, de ahí que los efectos redunden en desproporcionados -en sentido estricto y contrarios a la Constitución-. Consideran que no puede el legislador, dejando de lado las evidentes falencias y negligencias del fondo de pensiones, dimensionar su solución sobre la espalda de una sola generación de trabajadores y distribuir los efectos entre los sectores relacionados, dentro de éstos el mismo Estado cuya responsabilidad objetiva dejó de lado el control y regulación de este régimen, siendo que la reforma se planteó urgente. Indican que, en esa línea de razonamiento, las propuestas gremiales para la reforma, mantenían la posibilidad de un transitorio escalonado de manera necesaria, idónea -entendiendo la idoneidad en la tríada de efectos para el Estado, administración y trabajadores- y proporcional. 12) Señalan que además de lo dicho, aún más drásticas resultan las medidas cuando se complementan con el artículo 226 que establece la obligatoriedad de laborar al menos los últimos 20 años al servicio del Poder Judicial, lo que hace aún más gravosa la situación a los funcionarios que están por encima de las 2 décadas. Consideran que un transitorio escalonado, que aplique la reforma de manera gradual según los años de estancia en el régimen, se convierte en una modalidad respetuosa de principios constitucionales, por lo que piden que se declare que el Transitorio VI de la reforma, es contrario al Convenio 102 de la OIT y al principio de razonabilidad en relación con el de igualdad. Finalizan solicitando que se declare que los artículos 224, 224 bis, 236, 236 bis y Transitorio VI de la Ley Orgánica del Poder Judicial reformados por la Ley 9544 del 22 de mayo de 2018, sean declarados inconstitucionales, así como también que, mientras se resuelve esta acción de inconstitucionalidad, se suspenda la entrada en vigencia de la ley impugnada, así como cualquier rebajo o ajuste en los salarios y pensiones de los funcionarios activos y jubilados del Poder Judicial que se incluya en la nueva normativa.

74.- El 5 de junio de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

75.- En resolución de la Presidencia a.i. de la Sala Constitucional -Magistrado Araya García- de las 11 horas 25 minutos del 5 de junio del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

76.- Mediante oficio agregado al expediente electrónico el 11 de junio de 2018 la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo # 6155 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Anamari Garro Vargas, Ileana Sánchez Navarro, Alicia Salas Torres, Alejandro Delgado Faith, Lucila Monge Pizarro, Mauricio Chacón Jiménez y Ana María Picado Brenes.

77.- El 12 de junio de 2018, la Magistrada suplente Lucila Monge Pizarro; el 13 de junio siguiente las Magistradas suplentes Ana María Picado Brenes y Alicia Salas Torres; el 14 de junio siguiente el Magistrado suplente Mauricio Chacón Jiménez; el 19 de junio posterior la Magistrada suplente Anamari Garro Vargas y el 21 de junio siguiente, las Magistradas suplentes Ana María Picado y Lucila Monge Pizarro (quienes reiteran la gestión) e Ileana Sánchez Navarro, formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal número 18-007819-0007-CO.

78.- En resolución de las 9 horas 36 minutos del 28 de junio de 2018, la Presidencia a.i. de la Sala Constitucional -ejercida por el Magistrado Delgado Faith-, dispuso tener por separadas a las Magistradas suplentes Lucila Monge Pizarro, Ana María Picado Brenes, Alicia Salas Torres, Anamari Garro Vargas e Ileana Sánchez Navarro y al Magistrado suplente Mauricio Chacón Jiménez, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

79.- Mediante oficio agregado al expediente electrónico el 3 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6227 efectuado para la sustitución de los Magistrados y Magistradas suplentes Anamari Garro Vargas, Ileana Sánchez Navarro, Alicia Salas Torres, Lucila Monge Pizarro, Mauricio Chacón Jiménez y Ana María Picado Brenes, manifestándose que debido a que la Sala originalmente había pedido 6 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que hay disponibles, siendo seleccionados Jorge Araya García, Hubert Fernández Argüello y Rónald Salazar Murillo.

80.- Los Magistrados suplentes Alicia Salas Torres (quien la reitera), Hubert Fernández Argüello y Rónald Salazar Murillo plantearon -el 4 de julio de 2018- inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal 18-007819-0007-CO.

81.- La Presidencia a.i. de la Sala Constitucional ejercida por el Magistrado Jorge Araya García, en resolución de las 13 horas 25 minutos del 4 de julio de 2018, tuvo por separados a los Magistrados suplentes Fernández Argüello y Salazar Murillo del conocimiento de este proceso.

82.- Mediante resolución de la Presidencia a.í. de la Sala Constitucional -Magistrado Jorge Araya- de las 14 horas 10 minutos del 4 de julio de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, disponiéndose continuar con la tramitación del expediente.

83.- Se apersona el Magistrado Fernando Cruz Castro mediante escrito presentado el 12 de febrero de 2019 para manifestar que en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

84.- Mediante resolución de las 13 horas 08 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo-, y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocer de este asunto a la Magistrada suplente Marta Eugenia Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

85.- Sobre la Acción de Inconstitucionalidad No. 18-008591-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002485 de las 10 horas 02 minutos del 13 de febrero de 2019, se ordenó acumular la acción de inconstitucionalidad 18-008591-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

86.- Por escrito recibido en la Secretaría de la Sala a las 11 horas 55 minutos del 4 de junio de 2018, se presenta la acción de inconstitucionalidad número 18-008591-0007-CO suscrita por Damaris Molina González, mayor, divorciada, jubilada judicial, vecina de Moravia, con cédula número 2-0269-0487, en su condición de Presidenta de la Asociación Nacional de Jubilados y Pensionados del Poder Judicial (ASOJUPEN); Álvaro Rodríguez Zamora, mayor, divorciado, jubilado judicial, con cédula de identidad 1-477-319, vecino de Cartago, en su condición de Secretario General del Sindicato Asociación Nacional de Investigadores en Criminalística y Afines (ANIC); Yesenia Paniagua Gómez, mayor, soltera, empleada judicial, portadora de la cédula 1-845-494, vecina de Zapote, en su condición de Presidenta de la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD) y Hernán Campos Vargas, mayor, casado, jubilado judicial, cédula de identidad 1-519-160, vecino de Coronado, en su calidad de Secretario General del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD); contra los artículos 224, 224 bis y 236 bis de la Ley 9544 publicada en La Gaceta No. 89 del 22 de mayo de 2018 por considerarlos contrarios a la Constitución Política conforme explican de seguido. Solicitan la suspensión de la vigencia de la Ley impugnada, así como también que se mantenga vigente la normativa que fue derogada. Argumentan que se encuentran legitimados para presentar esta acción de inconstitucionalidad al amparo de lo dispuesto en el artículo 75 párrafo 2) en tanto actúan en defensa de los intereses corporativos y colectivos de los miembros o asociados de sus representados. Señalan que la acción es de capital importancia a efecto de proteger los derechos e intereses específicos de la colectividad que representan al considerar que existen graves consecuencias derivadas de aprobar una ley que -en su criterio- infringe aspectos de forma y fondo, contrariando el Derecho de la Constitución, perjudicando de manera directa a todas las personas agremiadas en sus intereses profesionales, laborales y personales. Añaden que los artículos impugnados disminuyen de manera abusiva y agresiva el régimen de pensiones de las personas que laboran en el Poder Judicial, lesionando gravemente -en su criterio-, los intereses de sus asociados en materia de pensiones. 1) Señalan que los artículos 224 y 224 bis de la Ley 9544, establecen que, en el cálculo del monto para la jubilación, se deben tomar en cuenta los últimos 240 salarios y que el monto de la jubilación debe ser el 82% del cálculo anterior. Argumentan que la Sala Constitucional ha sido clara en cuanto a que, para reformar un régimen de jubilaciones, se requieren los respectivos estudios técnicos como interdicción de la arbitrariedad. Aducen que para determinar la solvencia del Fondo de Pensiones y Jubilaciones del Poder Judicial, se encomendó a la Universidad de Costa Rica y al Instituto de Investigaciones en Ciencias Económicas (en adelante IICE), ello como producto del convenio entre el Poder Judicial y la Universidad de Costa Rica R-CONV-005-2016, la realización de un estudio con tal propósito. Manifiestan que dicho convenio estableció que, en la realización del estudio, participarían al menos 4 personas, disponiéndose quienes serían, así como también que en caso de realizar cambios a ese equipo, se debía comunicar a la contraparte del Poder Judicial; situación que se echa de menos. Indican que de los estudios emitidos por el IICE -como órgano consultor contratado-, no se desprende que se requiera, para la sostenibilidad del fondo, el utilizar los últimos 240 salarios de referencia, sino que recomienda sean solo 120, así como tampoco se desprende que se requiera otorgar como porcentaje del cálculo antes indicado, un 82%, sino que recomienda otorgar un 85%. En relación con el oficio IICE-186-2017, advierten que se trata de un documento que es: a) suscrito de manera exclusiva por el señor José Antonio Cordero Peña, no lo suscribe ni respalda ninguna otra persona; b) está dirigido a la señora Nery Agüero Montero; c) no constituye una ampliación del estudio compuesto por 6 productos realizado por el IICE; d) hace referencia tangencial a los productos IICE_3 y IICE_4 y a ningún otro producto entregado a Corte según acuerdo con la UCR; e) los productos IICE que son 6, deben verse, analizarse y valorarse en su totalidad para emitir un criterio como el que se hace en los IICE_5 y IICE 6. 2) Agregan que, para la sostenibilidad financiera del fondo, la recomendación del estudio oficial producto de los IICE (6 en total) fue que los años de salarios fueran 10 años (120 salarios) y no 20 (240 salarios), por lo que consideran que el ampliar esos requisitos -sin necesidad o justificación técnica-, violenta principios como el de proporcionalidad y razonabilidad. Indican que, para la sostenibilidad financiera del fondo, la recomendación del estudio oficial producto de los IICE (6 en total), fue que el porcentaje del anterior cálculo fuera del 85%, por lo que rebajar ese monto a un 82% sin necesidad o justificación técnica, violenta principios como el de proporcionalidad y razonabilidad. Argumentan que, dentro del estudio realizado por el IICE (6 productos en total) se cometen errores que generan que se aplique como rendimiento real de las inversiones del Fondo de Jubilaciones y Pensiones del Poder Judicial, para los próximos 100 años, un 3% anual y, en tal sentido: a) no se toma en consideración más que 3 años actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial (2013-2014 y 2015); b) la contratación exigía tomar en consideración al menos 10 años actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial; c) establece un rendimiento real del 3% para los próximos 100 años sin tomar en cuenta las proyecciones del Banco Central de Costa Rica para los rendimientos reales que los ubica entre un 9% y un 10% para los próximos años; d) no contiene un criterio o fundamento científico para aplicar un rendimiento real si no solamente apreciaciones subjetivas. Señalan que para la sostenibilidad financiera del fondo, la recomendación del estudio oficial producto de los IICE (6 en total) es que, sobre el monto que supere del tope a las pensiones y jubilaciones en curso, se rebajará un 50%; sin embargo, nuevamente sin contar con fundamento técnico científico, el Legislativo en el artículo 236 bis de la Ley 9544, de manera inexplicable aplica rebajos menores lo que, atendiendo criterios actuariales, desmejora los rendimientos del fondo. Argumentan que la Sala Constitucional en sentencia número 2017-011714 de las 12 horas del 26 de julio de 2017, determinó que para poder hacer las variaciones en un régimen de pensiones, se debe contar con criterio técnico adecuado, como también lo ha sostenido la OIT. Añaden que a pesar de que con esa obligación se limita la posible discreción porque se requieren criterios técnicos, la redacción de los artículos 224 y 224 bis de la Ley 9544 impugnada, carecen de fundamento técnico, llamando así a la interdicción por arbitrariedad. Manifiestan que lo anterior se evidencia en el hecho de que para imponer una jubilación del 82% del cálculo que resulte del promedio de los últimos 240 salarios (20 años de salarios), se carece de un estudio técnico que lo justifique. Reiteran que, de las recomendaciones surgidas del estudio actuarial compuesto por 5 productos preliminares y 1 final -sin que se hable de algún producto extraordinario- no se desprende dicha recomendación, en esas condiciones, para mantener la solvencia actuarial del fondo. Indican que tampoco se ha justificado cuál es el impacto real sobre las reservas del fondo subir de los 10 años propuestos a 20, sin saber cuál es la necesidad de ese aumento de años, pues el estudio que sirve de base a las diputadas y diputados y que fuera emitido por el IICE de la UCR a lo largo de los 6 productos entregados al Poder Judicial, estableció como límite para el cálculo de la pensión 10 años de salarios recibidos (120 últimos salarios) y no los últimos 20 años de salarios recibidos (240 salarios). 3) Manifiestan que, de esta manera, se resolvió esa ampliación para dicho cálculo por parte de la Asamblea Legislativa en palmaria arbitrariedad y extralimitación, lesionándose con ello los derechos fundamentales a una pensión digna, además de normas, principios y jurisprudencia constitucionales respecto del control de constitucionalidad (ausencia de criterio técnico). Añaden que en cada uno de los diferentes productos entregados, el equipo del IICE que realizó el estudio y las recomendaciones finales, estuvo conformado “como mínimo” por 4 personas, de modo que cualquier documento “extraordinario” -como el oficio IICE-186-2017-, no forma parte del producto final; sin embargo, para la redacción final de los artículos 224 y 224 bis, los miembros del Poder Legislativo se fundaron en un documento que no es producto de un estudio técnico, sino que es la posición individual de una persona, por lo que es improcedente tener como estudio técnico un oficio -número IICE-186-2017-, tratándose de un reporte que no debe considerarse como el resultado final, sino solo un paso para el producto final. Aducen que no se puede fundamentar, argumentar o hacerse un análisis objetivo si se toma en consideración sólo los productos IICE 3 y IICE 4 pues debe verse y analizarse el estudio contratado completo desde la perspectiva que ofrece el IICE 6. Señalan que ese oficio IICE-186-2017 hace referencia tangencial a los productos IICE_3 y el IICE_4, indicando incluso que esos estudios demostraron una adecuada solvencia del fondo. Indican que si no se puede hacer un análisis objetivo de solo 2 productos de un todo final y se evidencia la solvencia del fondo con el cálculo de los 120 salarios, no entienden porqué la Asamblea Legislativa sube a 240 últimos salarios sin apoyo técnico. Añaden que en el cuadro que contiene el producto denominado IICE_6, en lo que se denomina “escenario económico optimista”, se presenta un rendimiento real del 4% y, en ese panorama, se produce un superávit de 0.43 millón de millones. Indican que como este tema no tiene sustento técnico, no puede regularse a la ligera o a la libre, y hacerlo vicia de inconstitucionalidad la Ley 9544 por el principio constitucional de interdicción de la arbitrariedad. Señalan que el fundamento ilegítimo que se tuvo para que el artículo 224 impugnado estableciera una jubilación o pensión del 82% del monto del resultado del cálculo que resulte del promedio de los últimos 240 salario (20 años de salarios), fue un documento generado a partir de una consulta a una persona en particular y no al equipo del IICE que hace la Comisión Especial encargada de dictaminar el proyecto del que surge la Ley 9544; documento que consiste en el Oficio IICE-186-2017 de 18 de agosto de 2017 y suscrito de manera exclusiva por el señor José Antonio Cordero Peña, el que no debe ni puede considerarse como un instrumento técnico aceptable para ampliar de 120 a 240 años de salarios para pasar a calcular de un 85% a un 82%. Manifiestan que ese documento no puede equipararse con el estudio técnico realizado por el equipo que fue contratado por parte del Poder Judicial y, ni siquiera, es una ampliación de aquél estudio. Aducen que no se hace referencia a la validez que pudiera llegar a tener un oficio realizado y suscrito solamente por una persona que, ni siquiera, se encuentra en el grupo mínimo de personas que deben participar en la confección del estudio contratado. Advierten que ese oficio es una opinión personal del señor José Antonio Cordero Peña, dirigido a la señora Nery Agüero Montero, o sea, que ni siquiera fue dirigido a Corte Plena ni como copia. Argumentan que, en consecuencia, dicho documento no puede ni debe considerarse una ampliación a ningún estudio técnico capaz de ofrecer sustento a la normativa impugnada. Añaden que el suscriptor de ese oficio no indicó cuáles miembros del equipo del IICE, supuestamente le acompañan en la posición que ahí se plasma; tampoco fue firmado por esas personas, con lo cual, el documento adolece de aspectos objetivos que pudieran darle la suficiente fortaleza como para contradecir en los productos IICE 3, 4 y sobre todo el 6 en relación con el porcentaje a recibir como jubilación (85%) del resultado del cálculo de los últimos 120 salarios (10 años) y que ya así resultaba solvente el fondo de jubilaciones de cita. Añaden que, aunque se quiera asimilar el oficio IICE-186-2017 del 18 de agosto de 2017 con una ampliación a esos estudios, o a un estudio válido nuevo, en realidad no lo es y no resulta un criterio científico, técnico y objetivo para justificar que el Poder Legislativo, sin contar con un estudio técnico real, haya disminuido en un 3% el monto a recibir por concepto de pensión o jubilación, y haya aumentado en 10 años, el cálculo de los últimos salarios para el cálculo de ese porcentaje final de pensión. Indican que los informes técnicos presentados por el IICE del 1 al 6 demostraron cómo, con el cálculo de los últimos 120 salarios o 10 años de salario, se cumplía con ese requerimiento de solvencia actuarial así como con el 85% del monto resultante de dicho cálculo para otorgar la pensión o jubilación final. Argumentan que es contrario a los principios constitucionales de proporcionalidad y razonabilidad que la Asamblea Legislativa, sin justificación técnica, viniera a “agravar” esos requisitos de manera arbitraria, sin sustento técnico, pero sobre todo sin necesidad pues la finalidad de la reforma se cumplía con 120 últimos salarios de cálculo y entregando una jubilación del 85% de ese cálculo. Consideran que es arbitrario y contrario a los principios de razonabilidad y proporcionalidad el imponer un porcentaje menor y mayor número de años o salarios percibidos para calcular la jubilación o pensión final. 4) Manifiestan que, en atención al principio de proporcionalidad, es imprescindible que exista un análisis objetivo que demuestre que son medidas necesarias, que están técnica y científicamente sustentadas como lo exige la OIT; lo que no es otra cosa más que determinar si la reforma resulta idónea y necesaria como respuesta a la situación actual y real de las condiciones actuariales sobre sostenibilidad del fondo, no constituyéndose entonces para las personas que trabajan en el Poder Judicial, en una carga o imposición desproporcionada. Argumentan que, en ese sentido, el acto o reforma aquí cuestionada, debe ser apropiado para la realización de los fines que en él subyacen (principio de adecuación) y no existir un medio alternativo menos gravoso para alcanzar el mismo fin; caso contrario, se estaría frente a la inobservancia de ese principio fundamental. Indican que a los cuestionamientos planteados supra, debe tomarse en cuenta la información que pueda suministrar el Consejo Superior en cuanto al rendimiento real del fondo durante los años 2016, 2017 y lo que iba del 2018, que superan el 6% real, con lo que se evidencia aún más la decisión arbitraria e innecesaria del Poder Legislativo de subir los años para el cálculo a 240 y bajar el porcentaje a un 82% que ya había sido recomendado por el estudio técnico de la UCR. Consideran que las medidas adoptadas en la Ley 9544, son exageradas, desproporcionadas e irrazonables, lo que hacen que la decisión sea inidónea, desproporcionada e inconstitucional. Señalan que en la reforma contenida en la Ley 9544 existen una gama de medios alternativos para normar el tema, sin causar el grave perjuicio a las personas que laboran en el Poder Judicial, como podría ser que la Junta Administrativa, con sustento en estudios técnicos recientes y objetivos, pueda variar esos aspectos. Recuerdan que la Sala ha sostenido que cuando un medio es alternativo y menos gravoso, el no utilizarlo, traerá consigo la declaración de inconstitucionalidad de la medida implementada por violar el principio de proporcionalidad en sentido amplio, cuando se demuestre que, acudiendo a ese medio alternativo, se pueden lograr los mismos niveles de eficacia en la obtención del resultado que se busca con la medida más gravosa; situación que no se respeta en la normativa cuestionada. Insisten en que se pudieron adoptar medidas menos gravosas pues el fin de sostenimiento actuarial del fondo estaba garantizado -en las recomendaciones de los 6 productos emitidos por el IICE-. Consideran que esta reforma quebranta el principio de proporcionalidad en perjuicio de las personas trabajadoras del Poder Judicial. 5) Recuerdan que prevalece el principio constitucional de la mínima intervención según el cual, se debe impone la menor cantidad posible de restricciones a los derechos fundamentales. Añaden que la proporcionalidad resulta de una comparación entre el grado de realización u optimización del fin constitucional y la intensidad de la intervención “necesaria” en el derecho de la población o un grupo de ella, como es el caso de las personas trabajadoras del Poder Judicial, siendo que, si esta relación se cumple, la intervención en el derecho habrá superado el examen de la ponderación y no será inconstitucional. Recuerdan que ese test de proporcionalidad operaría también para reducir los márgenes de discrecionalidad en la limitación del contenido de los derechos fundamentales, una interdicción de la arbitrariedad. Consideran que la razonabilidad y la proporcionalidad son 2 principios que se encuentran casi fusionados; así el test de razonabilidad es un análisis de proporcionalidad que está directamente vinculado con el valor superior “justicia”. Añaden que, para la Sala, la razonabilidad es parámetro de constitucionalidad frente a la ley, incluso frente a la aplicación normativa de tipo especial resultado de una interpretación utilizando un método lógico sistemático de la ideología, no solo de la Constitución Política, sino de todo el ordenamiento jurídico. Agregan que además exige la idoneidad de la consecuencia jurídica en relación con la finalidad perseguida (relación con la proporcionalidad): en este caso, la reforma al régimen de pensiones del Poder Judicial como respuesta a una necesidad imperiosa respecto de su sostenibilidad actuarial (ver sentencias 3929-95 de las 15 horas 24 minutos del 18 de julio de 1995, 2000-010826 de las 14 horas 59 minutos del 6 de diciembre del 2000 y 5236-99 de las 14 horas del 7 de julio de 1999, entre otras). 6) Manifiestan que otro punto débil del estudio, es porqué el IICE para la investigación realizada al Poder Judicial estableció como promedio un porcentaje de rendimiento real de un 3% para los próximos años; en tanto, la Escuela de Matemática de la misma Universidad de Costa Rica en el estudio actuarial realizado a la CCSS para el régimen de IVM, estableció ese promedio en un porcentaje del 4% para los próximos 100 años. Indican que ese es un aspecto que no se ha podido determinar y que es de conocimiento público, por lo que consideran que debería la Sala cuestionarse esa diferencia como punto de partida, y cual fue el sustento técnico para determinar un rendimiento eral tan bajo?. Señalan que sobre el particular, se tienen que se han venido presentando tasas de rendimiento reales en el país superiores al 4%, llegando inclusive en algunos casos al 7%, entonces, se cuestionan cuál es el fundamento científico para usar de base un 3% para el estudio en el Poder Judicial?. Señalan que esta pregunta no tiene respuesta en el informe realizado, siendo de vital importancia que se explique técnica y científicamente a que se debe la utilización de ese supuesto pues la diferencia de un punto porcentual en cuanto a rendimientos reales, hace la diferencia para que se tengan que aplicar unos u otros criterios de sostenibilidad del fondo. Agregan que, para un estudio se tomó en consideración solamente los últimos 7 años aunque para el cálculo a realizar, se indica que solamente puede aplicar información del 2013 al 2015, o sea, solo 3 años, pese a que en el convenio UCR. IICE-Poder Judicial se determinó que debía tomar en cuenta los últimos años (2005 al 2015). Añaden que si se toma la información “real” del año 2000 al 2017, se puede observar que el fondo ha mantenido un rendimiento real de más del 4,57% y por ello no parece justificable, de ninguna manera, utilizar como base real un rendimiento del 3% para los próximos 100 años. Indican que la tasa real que se muestra en el cuadro No. 3 del punto 4.2 del IICE_6 es un 4.9% de rendimiento real; sin embargo, ahí mismo se concluye que el promedio de la tasa anual de rendimiento real de inversiones a largo plazo en colones esperada para los años venideros, estará en un rango de 4% +/-1%, lo cual manifiestan que es incorrecto pues en el informe el rendimiento real no es de un 4% sino de casi un 5% real, sea que la tasa anual de rendimiento real de inversiones a largo plazo en colones esperada para los años venideros, estará en un rango de 5% +/- 1% o entre el 4% y el 6%, lejos del 3% promedio que se les quiso vender. Recuerdan que dejar de tomar en consideración un 0.9% significa millones de colones que se dejaron de tomar en cuenta para hacer los cálculos, proyecciones y recomendaciones que están cuestionando, y que quedaron plasmadas en el artículo 224 de la Ley 9544. Señalan que en el mismo estudio IICE_6 en el punto sobre Compendio Resumen #7ª, se tiene que en lo que denominan “escenario económico optimista”, presentan un rendimiento real del 4% y en ese panorama, se produce un superávit de 043 mil millones a 100 años plazo; situación que permite hacer proyecciones menos groseras que las plasmadas en la Ley 9544 como, por ejemplo, suplir el aporte obrero solamente en un 1% y no en un 2%, aplicar criterios sobre género y que las mujeres puedan acceder a una jubilación a una edad menor que los hombres, que la edad siguieran siendo 60 años aunque los laborados fueran 35 pero con posibilidad de retiros anticipados menos castigados que los establecidos en la Ley 9544, sobre todo al existir la posibilidad de que la Junta Administradora, previos estudios técnicos, pudiera variar esos rangos como lo establece el párrafo 3 del artículo 239 de la Ley 9455. Añaden que en el punto 4.1 del IICE_6 sobre rendimientos reales, establece como parámetro la “Curva de Rendimiento Soberana” que, al 17 de mayo de 2016, establecía que a 10 años plazo, esa inversión supera el 8% real y no un 3%. Señalan que el dato de “Curva de Rendimiento Soberana” al 23 de mayo de 2018, establecía que a un plazo de 10 años, produciría una tasas de rendimientos reales del 10%. Indican que si se eliminan los rendimientos del 2010 al 2014 y se utilizaran rendimientos del 2016, 2017 y lo del 2018 al momento de presentar la acción, se vería como la conclusión alcanzada en el párrafo final del punto 4.3 del IICE_6 variaría significativamente, alcanzando incluso más que un 5% de rendimientos anuales. Señala que también se dispuso en la normativa impugnada que los puestos que se creen con salarios inferiores, al momento de la jubilación van a bajarse sus ingresos pues nunca deberá superar 10 veces ese nuevo salario. Agregan que, además, a las jubilaciones y pensiones en curso, deberá readecuarse el rebajo sobre el “nuevo” tope establecido, o sea, que se pasaría a sufrir un rebajo mayor. 7) Indica que todo esto crea una enorme incerteza jurídica, pero a efectos del Frente Gremial del Poder Judicial y de las personas accionantes, lo realmente importante es que, a fin de cuentas, el artículo 236 bis no respetó el resultado de los estudios actuariales indicados, además de que también se rebajará un 50% como “aporte solidario”, ofreciendo ese artículo una fórmula bastante distinta y ayuna de cualquier sustento técnico. Argumenta que tampoco se da explicación o el fundamento del porqué disminuye el aporte solidario que deben hacer las pensiones más altas o que sobre pasen el tope impuesto. Indican que debió establecerse en la Ley un aporte solidario sobre el exceso del tope impuesto en un 50% como el IICE recomendó, no a cuenta gotas como se hizo en el 236 bis. Señala que al no haberse hecho de esa manera, vicia de inconstitucionalidad la norma referida al aporte solidario y una de las principales metas que se tuvo para la promulgación de la ley se desvanece. Añaden que no están en contra del resto de la normativa contenida en la Ley 9544 y en ese sentido, señalan que los topes impuestos a las futuras pensiones, así como la conformación de la nueva Junta Administradora, que fueron aspectos de suma importancia para la promulgación de esta ley, quedarían incólumes. Finaliza señalando que la Junta Administradora siempre guardará la posibilidad de variar los parámetros que establecerían nuevamente los artículos 224 y 225 de la Ley 7333, eso sí, contando con los estudios técnicos correspondientes como lo establece el tercer párrafo del artículo 239 de la Ley 9544. Reiteran sus pretensiones para que, en atención a las violaciones flagrantes que se dan al Derecho de la Constitución, se declaren inconstitucionales los artículos 224, 224 bis y 236 bis de la Ley 9544.

87.- El 12 de junio de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández Gutiérrez y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

88.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Araya García- de las 8 horas 55 minutos del 14 de junio del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

89.- Mediante oficio agregado al expediente electrónico el 19 de junio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6195 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Alicia Salas Torres, Lucila Monge Pizarro, Ileana Sánchez Navarro, Jorge Araya García, Ana María Picado Brenes, Alejandro Delgado Faith y Mauricio Chacón Jiménez.

90.- El 20 de junio de 2018 el Magistrado suplente Mauricio Chacón Jiménez; el 21 de junio siguiente las Magistradas suplentes Ana María Picado Brenes, Ileana Sánchez Navarro y Lucila Monge Pizarro, y el 22 de junio posterior la Magistrada suplente Alicia Salas Torres, formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

91.- En resolución de las 8 horas 25 minutos del 28 de junio de 2018 la Presidencia de la Sala Constitucional -Magistrado Araya García-, dispuso tener por separado al Magistrado suplente Mauricio Chacón Jiménez, y a las Magistradas suplentes Ana María Picado Brenes, Ileana Sánchez Navarro, Lucila Monge Pizarro y Alicia Salas Torres, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

92.- Mediante oficio agregado al expediente electrónico el 3 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6230 efectuado para la sustitución de los Magistrados y Magistradas suplentes Alicia Salas Torres, Lucila Monge Pizarro, Ileana Sánchez Navarro, Mauricio Chacón Jiménez y Ana María Picado Brenes, manifestándose que debido a que la Sala originalmente había pedido 5 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que había disponibles, siendo seleccionados Anamari Garro Vargas, Hubert Fernández Argüello y Rónald Salazar Murillo.

93.- Los Magistrados suplentes Hubert Fernández Argüello y Rónald Salazar Murillo plantearon -el 4 de julio de 2018- y la Magistrada Suplente Anamari Garro Vargas -el 9 de julio siguiente-, inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal 18-007819-0007-CO.

94.- La Presidencia de la Sala Constitucional ejercida por el Magistrado Jorge Araya, en resolución de las 8 horas 50 minutos del 10 de julio de 2018, tuvo por separados a los Magistrados suplentes Fernández y Salazar Murillo, así como a la Magistrada suplente Garro Vargas del conocimiento de este proceso, y dispuso remitir el expediente a la Presidencia de la Corte Suprema de Justicia para lo que corresponda.

95.- Mediante resolución de la Presidencia de la Sala Constitucional -Magistrado Jorge Araya García- de las 9 horas 40 minutos del 10 de julio de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, disponiéndose continuar con la tramitación del expediente.

96.- Se apersona el Magistrado Fernando Cruz Castro mediante escrito presentado el 12 de febrero de 2019 para manifestar que en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

97.- Mediante resolución de las 13 horas 15 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo-, y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocer de este asunto a la Magistrada suplente Marta Eugenia Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

98.- Sobre la Acción de Inconstitucionalidad No. 18-009275-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002486 de las 10 horas 03 minutos del 13 de febrero de 2019 se ordenó acumular esta acción de inconstitucionalidad número 18-009275-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

99.- Por escrito recibido en la Secretaría de la Sala a las 11 horas 14 minutos del 15 de junio de 2018, se presenta la acción de inconstitucionalidad número 18-009275-0007-CO suscrita por Jorge Luis Morales García, mayor, casado, funcionario judicial, vecino de Alajuela, portador de la cédula de identidad número 2-399- 222, en su condición de Secretario General del Sindicato de la Judicatura (SINDIJUD); Yesenia Paniagua Gómez, mayor, soltera, empleada judicial, portadora de la cédula de identidad número 1-845-494, vecina de Zapote, en su calidad de Presidenta de la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD); Ana Luisa Meseguer Monge, mayor, casada, funcionaría judicial, portadora de la cédula de identidad número 9-0030-0193, vecina de San José, como Presidenta de la Asociación Costarricense de Juezas; Hernán Campos Vargas, mayor, casado, jubilado judicial, portador de cédula de identidad N° 1-519-160, vecino de Coronado, en su condición de Secretario General del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD) y Carlos Álvarez Casasola, mayor, casado en terceras nupcias, jubilado judicial, con cédula de identidad 1-396-124, vecino de Turrialba, en su calidad de Presidente de la Caja de Préstamos y Descuentos de los Empleados del Poder Judicial (CAPREDE); en contra de los artículos 224, 224 bis, 226 y Transitorio VI, todos de la Ley 9544, publicada en la Gaceta número 89 del 22 de mayo de 2018, por resultar contraria a las normas y principios constitucionales y supra constitucionales o convencionales, debido a que en el proceso de su formación se presenta el vicio de falta de sustento técnico requerido para reformas a regímenes de jubilaciones y pensiones, así como también por violentar los principios constitucionales de Proporcionalidad y Razonabilidad, Interdicción de la Arbitrariedad, Seguridad Jurídica, así como lo establecido en los Convenios 102, 118, 128, 157 de la Organización Internacional del Trabajo. Argumentan que la legitimación con la que cuentan para presentar esta acción de inconstitucionalidad proviene del artículo 75 párrafo 2) de la Ley de la Jurisdicción Constitucional, toda vez que acuden en defensa de los intereses de sus agremiados al considerar que los artículos impugnados, disminuyen de manera abusiva y agresiva el régimen de jubilaciones y pensiones de las personas que laboran en el Poder Judicial, lesionando gravemente los intereses de sus asociados en materia de jubilaciones y pensiones y, por ello, en su criterio, las Asociaciones y Sindicatos que representan, se encuentran legitimados para incoar la presente acción de inconstitucionalidad en defensa de los legítimos derechos e intereses de sus asociados y afiliados. 1) Argumentan que la Ley 9544 en sus artículos 224, 224 bis y 226, establecen que: a) para jubilarse bajo el régimen de jubilaciones y pensiones del Poder Judicial, se debe haber servido al menos 20 años en dicha institución, contrario sensu, quien no cumple ese requisito no puede jubilarse; b) quienes resulten sobrevivientes a una persona que labore menos de 20 años en el Poder Judicial, sin importar los años de servicio en otras instituciones públicas, no tienen derecho a pensión alguna; c) se debe cumplir con el requisito de tener 65 años de edad y 35 años de servicio para optar por una jubilación o pensión completas. 2) Agregan que, la Ley 9544, en su transitorio VI establece el derecho adquirido a pensionarse bajo los términos de la ley 7333 del 5 de mayo de 1993 a las personas que cumplan con los requisitos de dicha ley dentro de los 18 meses posteriores a la promulgación de la ley 9544; sin embargo, señalan que no existe criterio técnico-científico desde el punto de vista de la sostenibilidad actuarial del fondo, que justifique un determinado tiempo para el reconocimiento de ese derecho adquirido, ni de 18 meses, ni de 20 o 25 años de servicio para que ese grupo de personas trabajadoras puedan jubilarse bajo el régimen establecido en la Ley 7333. Añaden que tampoco existe criterio técnico-científico -desde el punto de vista de la sostenibilidad actuarial del fondo-, que determine cuáles serían las consecuencias, si es que las hay, en el caso de un transitorio para que las personas con 20 o 25 años de cotizar para el fondo, puedan jubilarse bajo el régimen establecido en la Ley 7333. 3) Señalan que la Ley 9544 es contradictoria, concretamente lo establecido en el artículo 224 con el transitorio VI, pues en el primero se determina la admisibilidad (en perjuicio de la persona trabajadora con menos de 20 años de servicio en el Poder Judicial) de derechos adquiridos luego de 20 años de servicio, en tanto, el transitorio VI establece que ese derecho adquirido solamente se aplicará a las personas con 28 años y 6 meses de servicio al momento de promulgar la ley 9544 (nuevamente en perjuicio de la persona trabajadora, esta vez con 20 años o más de servicio en el Poder Judicial), lo anterior sin contar con sustento o fundamento técnico-científico. 4) Manifiestan que el artículo 224 de la Ley 9544, tampoco respeta criterios obligatorios de género. 5) Indican que el oficio IICE-186-2017 fue suscrito de manera exclusiva por el señor José Antonio Cordero Peña, no lo suscribe ni respalda ninguna otra persona; oficio que además está dirigido a la señora Nery Agüero Montero, y no constituye una ampliación del estudio compuesto por 6 productos realizado por el IICE. Argumentan que ese oficio hace referencia tangencial a los productos IICE_3 y IICE_4 y a ningún otro producto entregado a Corte según acuerdo con la UCR; los productos IICE -que son 6-, deben verse, analizarse y valorarse en su totalidad para emitir un criterio como el que se hace en los IICE_5 y MCE 6. 6) Consideran que la Ley 9544 desaplica de manera palmaria algunas obligaciones preestablecidas en los Convenios 102 y 128 de la Organización Internacional del Trabajo; convenios debidamente suscritos por Costa Rica para regular específicamente aspectos relacionados con el Derecho Humano a una jubilación, a la pensión justa y en condiciones dignas. Manifiestan que el artículo 25 del Convenio 102 de la OIT establece:

"Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte” Por su parte, aducen que el Convenio 128 en su artículo 14 establece:

“Todo Miembro para el cual esté en vigor la presente parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte " Manifiestan que esta obligación para el Estado Costarricense, también encuentra fundamento en los artículos 1, 2 y 26 de la Convención Americana Sobre Derechos Humanos, así como el artículo 9 del Protocolo Adicional a la Convención Americana sobre Derechos Económicos, Sociales y Culturales, "Protocolo de San Salvador”; todo en relación con lo establecido en los artículos 7, 50 y 73 de la Constitución Política. Aducen que la Sala ha analizado el tema del derecho fundamental a la jubilación en el Voto número 1147-90 de las 16 horas del 21 de septiembre de 1990, el que consideran un verdadero progreso en un Estado Social de Derecho:

“(...) la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución (...)" (los resaltados son del memorial de la acción).

Indican que el derecho a la jubilación no sólo constituye un derecho fundamental previsto en la Constitución Política, sino que, atendiendo el principio erga omnes aplicado a la jurisprudencia constitucional, según artículo 13 de la Ley de la Jurisdicción Constitucional, se está frente a un Derecho Humano, lo que representa mayores implicaciones por cuanto, en estricto apego al principio de progresividad en el reconocimiento de los derechos humanos, en el momento en que la Sala Constitucional reconoció el derecho a la jubilación como un Derecho Humano, no puede emitirse criterio alguno en contraposición de este reconocimiento, todo sin dejar de lado la jerarquía supraconstitucional de los Derechos Humanos. Agregan que, el razonamiento de la Sala Constitucional en el Voto 1147-90 antes indicado, no se limita al reconocimiento del Derecho Humano a la jubilación del trabajador y, en ese sentido, esa sentencia indicó, adicionalmente:

"Esa conclusión (del derecho a la jubilación como un Derecho Humano) se confirma en una serie de principios y normas internacionales de derechos humanos, que tienen, no sólo el rango superior a la ley ordinaria que les confiere el artículo 7 de la Constitución, sino también un amparo constitucional directo que prácticamente los equipara a los consagrados expresamente por la propia Carta Fundamental al tenor del artículo 48 de la misma, (reformado por la Ley No. 7128 de 18 de agosto de 1989); entre esos derechos, concretamente, los reconocidos en los artículos 25, 28, 29 y 30- asi corregidos los que se invocan en la acción- del Convenio sobre la Seguridad Social, No. 102 de la OIT, en los cuales se establece: " Artículo 25 Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte"" Artículo 28 La prestación consistirá en un pago periódico, calculado en la forma siguiente... "" Artículo 29 1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos: a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia..." Indican que del extracto citado resulta evidente que la Sala Constitucional reconoció el contenido del artículo 29 del convenio 102 de la OIT, no sólo como una norma supra legal (en virtud de tratarse de un instrumento internacional) sino además como un artículo que es objeto de amparo constitucional directo, equiparándolo con un derecho fundamental reconocido en nuestra Carta Magna. Argumentan que, a partir de este razonamiento, la Sala Constitucional señala directamente que existe un derecho fundamental que puede derivarse de los artículos 25, 28, 29 y 30 del convenio 102 de la OIT; interpretación conjunta con lo dispuesto por el artículo 73 de la Constitución Política, el cual de su ubicación en el capítulo de "garantías sociales" de la Constitución y de los instrumentos internacionales aludidos, se desprende claramente su sentido y la intención del Constituyente de consagrarlo como un derecho de la persona trabajadora. Resumen diciendo que de la normativa Constitucional y Supra Constitucional hasta aquí indicada, se tiene que el Estado debe velar porque toda persona y, en el caso concreto, las personas trabajadoras y concretamente del Poder Judicial, reciban una pensión o jubilación justa, siendo que, incluso, los convenios 102 y 128 de la OIT, presentan panoramas ante los cuáles debe darse una jubilación disminuida o parcial, pero debe otorgarse. Manifiestan que, tanto la jurisprudencia constitucional como los Convenios 102 y 128 de la OIT, determinan el derecho a la jubilación como un derecho humano inalienable e imprescriptible por esa propia naturaleza de todo ser humano; sin embargo, aducen que los artículos 224 y 224 bis de la Ley 9544, establecen limitaciones, con posibilidad incluso de hacer nugatorio ese derecho a la jubilación digna y justa. Manifiestan que la Ley 9544 establece en sus artículos 224, 224 bis y 226 párrafo 1), que los servidores judiciales con 20 años o más de servicio en el Poder Judicial, podrán acogerse a una pensión completa o parcial según sea el caso; contrario sensu, los trabajadores que laboren menos de 20 años para el Poder Judicial, sin importar cuantos años hayan laborado para otras instituciones, ni tampoco la edad que tengan, no pueden ejercer su derecho a una pensión justa y digna (destacados del memorial de la acción). 7) Aducen que, como agravante de lo anterior, esa norma también viene a perjudicar a posibles futuros beneficiarios, como quienes adquieren derecho a pensión por sobrevivencia (conyugues, compañeros, padres dependientes) o por orfandad, personas inválidas o incapaces que dependan de la persona fallecida pues, las personas en las condiciones indicadas que dependan de la persona fallecida que era servidora del Poder Judicial, sin importar la cantidad de años laborados de la persona trabajadora en otras instituciones públicas pero con menos de 20 años de servicio en el Poder Judicial, quedarían absolutamente desprotegidas. Indican que esto resulta inconcebible dentro del Estado Social de Derecho, contrario a los artículos 50 y 51 constitucionales así como a la normativa y jurisprudencia dictada en la materia. Consideran que solamente el crear la posibilidad de que una persona que haya servido en el Poder Judicial menos de 20 años, se quede sin la expectativa de jubilación o pensión -según sea el caso-, resulta inconstitucional. 8) Manifiestan que, de ninguno de los 6 productos entregados por el IICE, se desprende la necesidad y menos aún, la justificación técnico-científica para pasar o aumentar los 5 años que exigía el artículo 231 de la Ley Orgánica del Poder Judicial, o los 10 años establecidos en los artículos 226 y 230 de ésta (derogados por la Ley cuestionada 9544) de servicio en el Poder Judicial, para obtener la jubilación a los 20 años que exigen los artículos 224, 224 bis y 226 de la Ley 9544. Agregan que, para la modificación de regímenes de pensiones en Costa Rica, la Sala ha establecido la obligatoriedad de contar con criterios técnicos y, en ese sentido, en la sentencia número 2017-011714 de las 12 horas del 26 de julio de 2017, determinó que ese resulta ser un requisito sine qua non para fundamentar cualquier reforma, como también ha sido sostenido por la Organización Internacional del Trabajo. Indican que, pese a esa obligación de tener que contar con criterios técnicos, la redacción de los artículos 224, 224 bis y 226 de la Ley 9544 publicada en La Gaceta número 89 del 22 de mayo de 2018, carece de fundamento técnico para aumentar de forma desmedida, injustificada y arbitraria los años de servicio (20) en aras de poder optar por una jubilación o pensión, llamando así a interdicción por arbitrariedad. En su condición de accionantes se plantean: ¿Cuál es el fundamento técnico-científico, desde el punto de vista de la sostenibilidad actuarial que sustenta este aumento desproporcionado?; y señalan que esta reforma, injustificada desde el punto de vista técnico científico, viene a hacer nugatorio el Derecho Humano a la Jubilación de las personas trabajadoras o directamente afectadas, pero también hace nugatorio ese derecho para futuros beneficiarios, como quienes adquieren derecho a pensión por sobrevivencia (conyugues, compañeros, padres dependientes) o por orfandad, personas inválidas o incapaces que dependan de la persona fallecida, pues éstas, si el servidor no cumple 20 años de servicio al momento del fallecimiento, sin importar si había servido 30, 35 o 40 años en otra institución del sector público, quedarían desamparadas, descubiertas en dicha contingencia. Argumentan que, por su parte, el artículo 231 derogado, en este punto era bastante más benigno pues solo exigía 5 años de servicio en el Poder Judicial; de esta manera, para modificar esos parámetros se requería, indudable y constitucionalmente, de un estudio técnico-científico del que se adolece y se preguntan: ¿Cuál es el beneficio o perjuicio desde el punto de vista de sustentabilidad actuarial para el fondo pero, sobre todo, ¿Cómo va a afectar esa norma a la población judicial?, lo cual tampoco tiene estudio técnico. Añaden que, aunque se contara con un criterio técnico, es absolutamente inválido para una norma infra constitucional, el hacer nugatorio el derecho a una jubilación o pensión justa, tal y como lo hacen los artículos 224, 224 bis y 226 de la Ley 9544, de ahí la inconstitucionalidad que consideran que contienen. 9) Añaden que, además, los artículos cuestionados de inconstitucionalidad, con ese agravante de exigir para la jubilación o pensión 20 años de servicio mínimo en el Poder Judicial, contienen otra posibilidad impensable, cuál es el extender la totalidad de los años de servicio de manera injustificada. Manifiestan que, según lo expuesto, una persona puede haber servido en otras instituciones hasta sumar más de 35 años de trabajo continuo, pero con menos de 20 en el Poder Judicial y, aún así, no podrá jubilarse, pese a haber cumplido el requisito para una jubilación adelantada, según el artículo 224 bis de la Ley 9544. Añaden que, en el caso de una persona que ingresó a laborar al Poder Judicial con 50 años, deberá esperar hasta los 70 años para poder jubilarse y, peor aún, si falleciera antes de cumplir esos años, sus sobrevivientes no recibirían pensión alguna; si ingresó a los 50 años a laborar en el Poder Judicial y no cumpliera el requisito para jubilarse dentro de los 18 meses posteriores a la publicación de la Ley 9544, deberá esperar a cumplir 70 años para jubilarse. Consideran que dependiendo de los cargos, podría no ser un problema pensionarse de 70 años o más, pero en el caso de servidores con funciones bastante más pesadas, como un policía administrativo que ingrese por méritos propios a edad madura al Organismo de Investigación Judicial, definitivamente va a resultar muy perjudicado con esta imposibilidad de pensionarse hasta después de laborar 20 años dentro del Poder Judicial. Estiman que la redacción de los artículos 224, 224 bis y 226 de la Ley 9544, al imponer 20 años de servicio obligatorio en el Poder Judicial, como requisito de cualquier jubilación o pensión, ello sin contar con criterios técnicos-científicos, crea violaciones flagrantes al Derecho Humano de la jubilación y la pensión. 10) Consideran que, además, crea otros posibles efectos igualmente inconstitucionales, principalmente por esa carencia de referencias o fundamentos técnico- científicos y es que, podría generar que se deba trabajar más allá de la edad establecida por los Convenios de la OIT, 102 y 128 respecto del límite para la edad de jubilación que determina en 65 años. 11) Añaden que, otro derecho que se ve impedido de realizarse, resulta ser uno otorgado por el artículo 224 bis, que es contradictorio en sí mismo, pues indica que una persona que labora en el Poder Judicial puede jubilarse de manera anticipada si cumple con 35 años de servicio (no indica que sea en el Poder Judicial); sin embargo, nuevamente dice ese artículo que, para ello, debe haber laborado al menos 20 años en el Poder Judicial. Sobre el particular manifiestan que, así las cosas, una persona que ingresa al sector público de 20 años de edad y a los 40 años de edad obtiene un puesto en el Poder Judicial, no puede adelantar su pensión luego de 35 años de servicio como indica el artículo 224 bis, al impedir paradójicamente ese mismo artículo el ejercicio del derecho por no tener los 20 años de servicio en el Poder Judicial, impidiéndose esa posibilidad pese a que ya ha cotizado más de los 30 años que establecen los Convenios de la OIT 102 y 128, además de haber cumplido uno de los requisitos establecidos en el 224 bis, como es tener 35 años como trabajador activo para el servicio público. Argumentan que, de esa manera, sin contar con criterios técnicos que justifiquen la barbaridad plasmada, sin ofrecer mayor análisis por parte del Legislativo, los artículos 224, 224 bis y 226 de la Ley 9544, al imposibilitar el ejercicio del derecho fundamental, humano, a una jubilación y pensión justa y digna a las personas por el hecho de haber laborado menos de 20 años en el Poder Judicial, vienen a contrariar el Derecho Internacional de los Derechos Humanos, así como la misma Constitución Política, su ideología y naturaleza. Argumentan que, una vez expuesta la inconstitucionalidad -que en su criterio existe- de los artículos 224, 224 bis y 226 de la ley 9544 por impedir que pueda jubilarse una persona con menos de 20 años de laborar para el Poder Judicial, estiman que hay otros vicios de inconstitucionalidad en la redacción de esos dos artículos 224 y 224 bis de la Ley 9544 y es que los Convenios de la OIT 102 y 128, vienen a establecer la obligación del Estado de garantizar que la persona trabajadora pueda obtener el beneficio de una jubilación o pensión justa y digna al haber cotizado para un determinado régimen solamente por 10 o 15 años (la jubilación evidentemente sería parcial). Manifiestan que los artículos 28 y 29 del Convenio 102 de la OIT establecen en lo conducente, en relación con el derecho a una jubilación justa y digna, lo siguiente:

"Artículo 28. La prestación consistirá en un pago periódico, calculado en la forma siguiente:

(a) cuando la protección comprenda a categorías de asalariados o a categorías de la población económicamente activa, de conformidad con las disposiciones del articulo 65 o con las del artículo 66; (...)” “Artículo 29.

1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

(a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia; 2. Cuando la concesión de la prestación mencionada en el párrafo 1 esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida, por lo menos:

(a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación de quince años de cotización o de empleo; o (b) cuando en principio estén protegidas todas las personas económicamente activas, a las personas protegidas que hayan cumplido un período de calificación prescrito de cotización y en nombre de las cuales se haya pagado, durante el periodo activo de su vida, la mitad del promedio anual de cotizaciones prescrito a que se refiere el apartado b) del párrafo 1 del presente artículo.

3. Las disposiciones del párrafo 1 del presente artículo se considerarán cumplidas cuando se garantice una prestación calculada de conformidad con la parte XI, pero según un porcentaje inferior en diez unidades al indicado en el cuadro anexo a dicha parte para el beneficiario tipo, por lo menos a las personas que hayan cumplido, de conformidad con reglas prescritas, diez años de cotización o de empleo, o cinco años de residencia.

4. Podrá efectuarse una reducción proporcional del porcentaje indicado en el cuadro anexo a la parte XI cuando el período de calificación correspondan te a la prestación del porcentaje reducido sea superior a diez años de cotización o de empleo, pero inferior a treinta años de cotización o de empleo. Cuando dicho período de calificación sea superior a quince años se concederá una pensión reducida, de conformidad con el párrafo 2 del presente artículo 5. Cuando la concesión de la prestación mencionada en los párrafos 1, 3 o 4 del presente artículo esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida, en las condiciones prescritas, a las personas protegidas que, por el solo hecho de la edad avanzada a que hubieren llegado cuando las disposiciones que permitan aplicar esta parte del Convenio se hayan puesto en vigor, no hayan podido cumplir las condiciones presentas de conformidad con el párrafo 2 del presente articulo, a menos que, de conformidad con las disposiciones de los párrafos 1, 3o 4 de este artículo, se conceda una prestación a tales personas a una edad más elevada que la normal" (los destacados son del memorial).

Manifiestan que, exactamente en igual sentido se tiene el contenido del artículo 18 del Convenio 128 también de la OIT y recuerda que los Convenios 102 y 128 de la OIT, establecen que por período de calificación se debe entender período de cotización. Agregan que, como se puede ver, el “eliminar" o hacer nugatorio el derecho fundamental a una jubilación digna a las personas con menos de 20 años de servir al Poder Judicial (aunque tengan más de 35 años de servicio público por ejemplo), ya no hablando de una jubilación o pensión completa sino parcial en el caso de haber cotizado 10 o 15 años en determinado régimen, viene a conculcar Derechos Humanos, siendo que, en esos casos la Ley 9544 ordena que las personas con menos de 20 años de servir en el Poder Judicial, no pueden acceder a una jubilación o sus supervivientes a una pensión, ello en contraposición a lo establecido en los convenios 102 y 128 de la OIT suscritos por el país respecto de la obligatoriedad de velar por que toda persona trabajadora reciba una jubilación o pensión justas, pero también respecto de la posibilidad de que, con menos cotizaciones (15 o 10), pueda recibir una jubilación parcial. Indican que, para evidenciar aún más esta violación a Convenios Internacionales, se habla de una cotización de 10 o 15 años, pero llaman la atención en cuanto a que no se habla ni se puede interpretar que habla de que sean esos 10 o 15 años de cotización a un determinado régimen, sino que quien llegue a los 65 años, si ha cotizado al menos diez años para el Régimen de Pensiones y Jubilaciones del Poder Judicial, se le debe garantizar una prestación (pensión) evidentemente reducida; sin embargo, de la redacción de los artículos 224 y 224 bis ello no es posible, estimando que lo anterior nuevamente viene a constituirse -en su criterio- como una flagrante violación al Derecho de la Constitución. Argumentan que, la redacción e interpretación de estos Convenios de la OIT, artículos 29 del 102 y 18 del 128 no resulta sencilla; sin embargo, determinan que quien haya cumplido con 30 años de cotizar o laborar ya adquiere el derecho a jubilarse, y quién haya laborado durante 20 años en determinado territorio, adquiere el derecho a jubilarse bajo las reglas de ese territorio y en caso de que no se alcancen esos 30 años pero si 15 o 10 años de cotizar, deberá calcularse una jubilación (prestación) reducida (por anticipada). 12) Aducen que en atención al Control de Convencionalidad que es de obligatorio acatamiento en el sistema jurídico costarricense, las normas contenidas en los artículos 224, 224 bis y 226 de la Ley 9544, resultan contrarias al Sistema Internacional de los Derechos Humanos. Indican que, se dan cuenta que una persona para jubilarse en el Poder Judicial, deberá laborar bastante más allá de 30 años, pudiendo una persona que ingrese a laborar a los 18 años tener que trabajar 47 años para recibir una jubilación sin reducciones por adelantar la jubilación; peor aún, si la persona laboró en otra institución estatal desde los 18 años pero ingresó al Poder Judicial a los 40 años, no va a poder adelantar su jubilación sino hasta servir 20 años en el Poder Judicial, sea a los 44 años de servicio y, ni hablar del problema para su familia, en caso de que esa persona muera antes de cumplir esos 20 años de servicio en el Poder Judicial. Consideran que todas estas situaciones hacen nugatorio el Derecho Humano a la jubilación y en ese sentido estiman que la Ley 9544 vulnera Derechos Humanos plasmados en Instrumentos Internacionales pues el Convenio 102 de la OIT en su artículo 26 inciso 2, así como el Convenio 128 también de la OIT en su articulo 15 inciso 2, indican que no se puede superar la edad de retiro más allá de los 65 años y en los ejemplos citados, para poder alcanzar una jubilación del Poder Judicial, se tendría que superar esa edad; lo que se dispuso en la Ley 9544 sin contar con un estudio técnico, no de tipo contable como lo son los productos cuestionados del IICE, sino de tipo sociológico que determine, a ciencia cierta, la posibilidad de que Jueces Penales, Jueces de Familia, Agrarios, Civiles, Contencioso Administrativos y de todas las materias que tramita el Poder Judicial, así como Policías Judiciales, personal administrativo, Fiscales, Defensores Públicos, entre otros, pueden laborar sin afectar el servicio, pero sobre todo su salud física y mental, al extender los años de servicio para pensionarse. Consideran que no se trata de extender simple o solamente cinco años el servicio bajo el argumento del principio pro fondo, pues con la reforma que trae aparejada la Ley 9544 se tiene que una persona que ingresó a laborar al Poder Judicial de 20 años, para poder jubilarse deberá ahora trabajar 45 años, sobrepasando con creces los 30 años de cotización que indican los Convenios 102 y 128 de la OIT y ello, sin contar con estudio técnico en las condiciones indicadas, que no son simplemente las contables que es a las que se les ha dado más importancia. Señalan que esas condiciones no pueden anteponerse el Principio Pro Fondo -que no es un principio de raigambre constitucional sino legal- a la normativa internacional indicada, sobre todo en evidente ausencia de criterios técnico-científicos que determinen cuál es la edad máxima en la que una persona puede ejercer las funciones judiciales del Poder Judicial que, valga indicar, presenta una gran cantidad de situaciones y posibilidades diferentes entre las personas que laboran en esta institución (Policías, Fiscales, Jueces de las diferentes materias, Defensores Públicos y personal Administrativo), tanto por salud física y mental, como por el peligro de que, al rebajar de manera tan drástica, como lo hace la Ley 9544, los derechos de jubilación y pensión, se exponga al personal peligrosamente a la tentación de la corrupción. Indican que tampoco puede sobreponerse ese principio legal al Derecho Humano a una jubilación o pensión justa, luego de haber finalizado una carrera judicial en el ámbito que sea, y donde las fuerzas lo permitan, sin detrimento de la salud y una vejez digna del sector judicial. Señalan que los artículos 224, 224 bis y 226 de la ley 9544, establecen primero que para jubilarse se requiere tener al menos 20 años de servicio en el Poder Judicial, pero además debe cumplir con 35 años en total de laborar en el sector público; en consecuencia, cualquier persona que ingrese a laborar después de los 46 años al Poder Judicial, se debe pensionar de más de 65 años, siendo que, en aplicación del anterior requisito, se incumple lo indicado en los Convenios de la OIT: 102 en su artículo 26 y 128 en su artículo 15, pero sobre todo debe verse que no existe el estudio técnico requerido para determinar contablemente esa necesidad y, menos, esa “posibilidad” física y mental de la población, aún cuando son aspectos requeridos, según lo establecido en el artículo 15 del convenio 128 de la OIT que indica:

“La edad prescrita no deberá exceder de sesenta y cinco años, pero una edad más elevada podrá ser prescrita por la autoridad competente, habida cuenta de criterios demográficos, económicos y sociales apropiados, justificados por datos estadísticos.

3. Si la edad prescrita fuera igual o superior a sesenta y cinco años, esa edad deberá ser reducida, en las condiciones prescritas, para las personas que hayan estado trabajando en labores consideradas por la legislación nacional como penosas o insalubres a los efectos de la prestación de vejez” (los destacados son del memorial).

• 13)Argumentan que el estudio cuestionado del IICE resulta ser de carácter económico, pero sobre todo es incompleto pues analiza la sostenibilidad del fondo y, se reitera, cuestionado desde el punto de vista contable, pero no se cuenta con un estudio demográfico y sociológico respecto de las posibilidades reales de que, las personas que laboran en el Poder Judicial, puedan extender la edad de retiro sin perjudicar su salud física y mental. Aducen que, siendo la reforma ayuna de informes de tipo demográficos y sociales apropiados, justificados por datos estadísticos exigidos por la normativa internacional sobre Derechos Humanos, deviene en inconstitucional, estimando además que la promulgación de la Ley 9544 se hizo de forma atropellada e inconsulta. Argumentan que, antes de obtener el derecho a la jubilación o pensión, existe un derecho adquirido subjetivo o, como mínimo, una expectativa legítima, entonces se cuestionan cuál es el fundamento técnico-científico para determinar un plazo de 18 meses establecido en el Transitorio VI ley 9544, y no otro como serían 20 años de cotizar al fondo. Consideran que, en el tema del derecho a jubilarse bajo los términos de una ley derogada, existe bastante material para su legítima justificación. 14) Señalan que es interesante el trato que el tema ha recibido por parte del Tribunal Constitucional Colombiano en la Sentencia número T-235 de 2002 que, sobre la justificación de los regímenes de transición en materia de jubilaciones indicó que “la sustitución de una norma por otra exige la necesidad de un régimen de transición. La existencia de normas transitorias es indispensable en la designación sobre seguridad social en pensiones porque hay derechos en vía de adquisición”. Argumentan que esa cita se refiere a personas con un cierto número de cotizaciones aportadas al fondo al momento del cambio de legislación, a las que consideran que debe darse un trato diferente y superior a una simple expectativa de derecho. Manifiestan que la sentencia número T- 631 de 2002 también del Tribunal Constitucional Colombiano indicó que “se ha considerado que la situación de las personas que se van acercando por edad o tiempo de servicio a las contempladas en la ley para acceder a la pensión de vejez, no es la misma de aquellas que apenas inician una vida laboral, llevan pocos años de servicio o su edad está bastante lejos de la exigida. Estas situaciones de orden táctico justifican un trato diferente” (los destacados son del memorial). Aducen que bajo estas circunstancias no se pueden imponer por igual nuevas reglas para la jubilación a una persona que está a 10 años de jubilarse, que a una persona que está iniciando labores o que se encuentra a 30 años de jubilarse al momento de que entre a regir una reforma, ello desde todo punto de vista y por diferentes circunstancias. En ese sentido, destacan que la ley derogada por la Ley 9544 establecía que, al cumplir 30 años de servicio (que implica un monto superior a las 300 cuotas que exige el régimen IVM de la Caja Costarricense de Seguro Social), la persona podía solicitar una jubilación anticipada sin importar la edad y, bajo esa perspectiva, venía trabajando y proyectando la vida a futuro cercano; sin embargo, al cambiar de manera tan drástica el sistema de jubilaciones, esa misma persona debe pensar ahora que la edad mínima de retiro, pensando en recibir la jubilación completa, será de 65 años y, por ello, se pasa de un régimen donde se podía jubilar luego de 30 años de servicio sin importar la edad, a un régimen en el cual debe esperar a los 65 años, lo que significa para una persona que inicia labores a los 20 años, tener que trabajar 45 años de su vida y, si se quiere adelantar la jubilación, debe sufrir una reducción económica sumamente drástica, a la ya muy recortada jubilación. Indican que, en el caso del Poder Judicial, si un Policía Judicial, un Juez Penal, un Fiscal, un Patólogo o un Trabajador Social -solo para poner algunos ejemplos- se pensionaban de 55 años luego de 30 años de servicio, para obligarlos a laborar diez años más, debe necesariamente contarse con estudios técnico-científicos que determinen esa posibilidad, ello por cuanto no puede perderse de vista que puestos como los de esos ejemplos, tienen en su trabajo diario una enorme carga emocional que podría afectar -de manera sumamente negativa- el tener que laborar 10 años más. Consideran que la posición del Tribunal Constitucional Colombiano, es de interés en relación al punto expuesto y, específicamente en sentencia número C-789 de 2002, en cuanto dispuso: “la creación de un régimen de transición constituye un mecanismo de protección para que los cambios producidos por un tránsito legislativo no afecten desmesuradamente a quienes, si bien no han adquirido el derecho a la pensión, por no haber cumplido los requisitos para ello, tienen una expectativa legitima de adquirir ese derecho” (los destacados son del memorial). 15) Manifiestan que, si se trae a colación los ejemplos de puestos antes indicados, al contratar a nuevo personal, éste podrá valorar de la conveniencia de iniciar su carrera judicial con esas condiciones, pero, si se tienen 20 años o más de servicio judicial, resulta más difícil tomar la decisión de renunciar por la ampliación grosera de esos plazos, de ahí que consideran la necesidad de diferenciar -mediante un transitorio- las diferentes condiciones de las personas activas, así como atemperar este tema, echando mano a lo establecido en los Convenios de la OIT 102 y 128 respecto de lo que se busca tutelar con los 20 años de “residencia" y, entender que este término no se refiere fríamente a 20 años de vivir en un lugar (criterio simplemente geográfico desarraigado del criterio “pertenencia”), sino que hace referencia a 20 años de aporte a un régimen determinado; aporte que otorga el derecho a jubilarse bajo las reglas de ese determinado régimen, no simplemente por vivir en un determinado país, sino por pertenecer y haber cotizado a determinado régimen y no a otro, durante esos 20 años. Ahora bien, en relación con la jurisprudencia constitucional en Costa Rica y lo establecido en el transitorio VI de la Ley 9544, manifiestan que la Sala, en la sentencia 1147-90 de las 16 horas del 21 de septiembre de 1990, como intérprete supremo de la Constitución, indicó que el derecho a la jubilación del trabajador como un Derecho Humano, no es irrestricto, pero las condiciones y limitaciones a imponer deben resultar necesarias y justificadas técnicamente:

“En realidad, no se ignora que el de jubilación, como cualquier otro derecho, está sujeto a condiciones y limitaciones, pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten, además, razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin" (los destacados son del memorial).

Advierten que, en esta acción, no se indica ni se argumenta que un régimen de jubilaciones y pensiones resulte inmutable; por el contrario, destacan que el argumento esgrimido en la acción está encaminado a respaldar la posibilidad de modificaciones en el tiempo pero el asunto es que las reformas que puedan venir a perjudicar las condiciones según las cuales un sector de cotizantes ha venido aportando en espera de jubilarse, no se varíen sin tomar en cuenta la conservación de los derechos en vías de adquisición pues, claramente para personas con 20 años o más de servicio, se estaría legislando en contra de principios como el de legitima confianza y de seguridad jurídica. Aducen que, en el contexto lógico de la restricción al derecho a la jubilación del trabajador, el Tribunal Constitucional indicó -de manera atinada en su criterio- que el derecho se adquiere en el momento en que se ingresa el régimen, de la siguiente forma:

“Ya se dijo que el derecho a la jubilación no puede limitarse, condicionarse o suprimirse irrazonable o desproporcionadamente, no importa si por circunstancias anteriores o posteriores a su adquisición, consolidación, reconocimiento o goce efectivo. En este sentido, es preciso observar que ese derecho deja de ser una simple expectativa y se adquiere desde que se ingresa al régimen jubilatorio, al menos como derecho general de pertenencia al mismo (...)” (los resaltados son del memorial).

Resaltan que este Tribunal Constitucional ha reconocido, como un derecho adquirido, la pertenencia a un régimen particular de pensiones, lo que genera una adecuada tutela al Derecho Humano a una jubilación o pensión digna, por lo anterior consideran que no existe antinomia entre el principio de "residencia” regulado en diferentes Convenios de la OIT y el de “pertenencia" desarrollado por la Sala Constitucional, que además se encuentra fuera de discusión, pues esos mismos Convenios de la OIT hablan de la conservación de los derechos en vías de adquisición; aquí el punto es determinar, mediante los respectivos estudios técnico-científicos, cuál va a ser el plazo para esa conservación de derechos en vía de adquisición. Reiteran que los Convenios de la OIT hablan de residencia -entendiéndola como tiempo (20 años) durante el cual una persona trabajadora vive (y aporta las cuotas) en un determinado país (con un determinado régimen jubilatorio)-, por ello, consideran que la interpretación del criterio “pertenencia” que hace la Sala Constitucional, resulta acertada y, en ese sentido, manifiesta que el voto de cita continúa indicando:

"Esto es así, porque desde el momento en que se ingresa al régimen jubilatorio el trabajador queda protegido, no sólo por las reglas y criterios legales y reglamentarios del propio régimen en sí, sino también por las normas y principios constitucionales que consagran su derecho a la jubilación o lo rodean de las especiales garantías de la Ley Fundamental, entre ellos el que prohíbe dar a los primeros efecto retroactivo en perjuicio de persona alguna, o de sus derechos adquiridos o de situaciones jurídicas consolidadas" (el resaltado es del memorial).

Indican que es claro que este Voto viene a identificar -de manera clara- lo que se debe entender por derecho de pertenencia a un determinado régimen de jubilaciones y no a otro; sin embargo, debe ahora hacerse mención a dos Votos donde este Tribunal Constitucional realizó una correcta interpretación de lo que debía entenderse por el termino de “residencia” establecido en los artículos 29 del Convenio 102 de la OIT y 18 del Convenio 128 también de la OIT, ello en referencia a las sentencias número 6842-99 de las 8 horas 45 minutos del 3 de septiembre de 1999 y número 673-2000 de las 9 horas 48 minutos del 21 de enero del 2000, en las cuales, en resumen, se indicó que al haber pertenecido durante 20 años a un régimen determinado, se adquiría el derecho de jubilarse en las condiciones establecidas en él, aunque posteriormente éstas varíen. 16) Aducen que, extrapolando lo anterior a la situación de las personas que laboran en el Poder Judicial, al haber cumplido 20 años de cotizar para el régimen establecido en la Ley Orgánica del Poder Judicial recién derogado por la Ley 9544, se consolidó un derecho en vías de adquisición a jubilarse o pensionarse bajo las condiciones establecidas en el régimen derogado. Resaltan que, interesante comparación análoga se puede hacer siguiendo el criterio de los 20 años para consolidar la situación jurídica y, es que la Ley 9544 establece en sus artículos 224, 224 bis y 226 que para tener el derecho subjetivo a pensionarse se debe haber servido -cotizado al fondo- durante 20 años y, en tal sentido, consideran que ello significa, ni más ni menos, que es justamente lo indicado por la Sala Constitucional en los Votos antes analizados: que transcurridos 20 años cotizando bajo un régimen de jubilaciones y pensiones, se consolida de manera “automática" ese derecho de “pertenencia" desarrollado por la Sala Constitucional. Consideran que, siguiendo esta línea, debería aplicarse igual criterio respecto de las personas que, al momento de publicarse la nueva ley, tenían 20 años o más de cotizar al régimen derogado y, de esa manera, tienen consolidada la conservación de sus derechos en vías de adquisición; por tanto, deben éstas jubilarse cuando cumplan los requisitos de la Ley 7333 bajo los parámetros de esa legislación. Añaden que no se debe dejar de analizar el contenido del Voto 2091-00 de las 8 horas 30 minutos del 8 de marzo de 2000, en el cual la Sala Constitucional viene a modificar el criterio de residencia, dejándolo parcialmente vacío, eso sí se debe aclarar que mantienen el criterio del derecho adquirido, o al menos no se elimina esa posibilidad. Argumentan que esta sentencia lo que hace es variar la interpretación del término “residencia” para que se entienda como el lugar donde se vive o, en otras palabras, como se analiza en el Voto 2018-5758 de las 15 horas 40 minutos del 12 de abril de 2018, a un concepto estrictamente geográfico o territorial, sin que se elimine la posibilidad de que, efectivamente, se pueda consolidar una expectativa legítima, incluso un derecho adquirido, tal y como en resumidas cuentas la Ley 9544 reconoce en el transitorio VI. Aducen que, viendo estas 2 posiciones, la segunda, o sea ver el concepto “residencia" como un aspecto meramente geográfico, pareciera muy simple y vacío, sobre todo cuando se toma en cuenta que la discusión relativa a la aplicación o conculcación de un Derecho Humano como lo que se analiza en esta acción, demanda un análisis bastante más profundo. Señalan que deben tomarse en cuenta los artículos 29 y 18 de los Convenios 102 y 128 de la OIT, en cuanto señalan que la prestación deberá garantizarse, en la contingencia cubierta, por lo menos a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia. Recuerdan que, en ambos instrumentos internacionales, al mencionar “residencia”, se debe entender “la residencia habitual”. Consideran que, hasta acá, no hay mayor discusión con el contenido del Voto 2091-00 de la Sala Constitucional; sin embargo, el cuestionamiento que se hace es a la interpretación estrictamente normativa que se da a ese término y que consideran contraria a los principios Pro Omine y Pro Libértate. Señalan que cuando los Convenios indicados hablan de residencia y ésta se refiere al lugar donde se vive, debe contextualizarse la norma como bien lo hizo este Tribunal en las primeras resoluciones, pues evidentemente se hace para diferenciar los regímenes en los que la persona trabajadora puede haber laborado durante su vida laboral activa, en diferentes países dentro de los miembros que suscribieran este Convenio, dentro de los que se encuentra Costa Rica, y así, el que una persona tenga o haya tenido 20 años de laborar en Costa Rica, no significa que por ese hecho adquiere el derecho de jubilación con ese “requisito“ de residencia como dato “geográfico" (20 años de residencia en el país); lo que significa es que se crea, con esa norma de los 20 años de residencia, una expectativa legítima, un derecho en vías de adquisición como indica la OIT, incluso, un derecho subjetivo y, por tanto, se puede escoger en caso dado, jubilarse bajo las reglas del territorio donde haya laborado durante esa cantidad de años. Aducen que, un ejemplo de lo indicado, es un trabajador que laboró 20 años en el Poder Judicial de Costa Rica y posteriormente laboró 10 años o más pero menos de 20 en otro país, de manera tal que esa persona puede escoger el jubilarse bajo las condiciones establecidas en el Poder Judicial de Costa Rica, donde residió (laboró) 20 años; ahora, si esta persona que laboró 20 años en el Poder Judicial de Costa Rica, finalizó la relación laboral aquí el 1 de febrero de 2018 (fecha en la que estaba vigente la Ley 7333 y no la 9544) y el resto de años laboró en otro país y, decide jubilarse con el sistema para el que laboró 20 años (criterio de residencia) ¿Se jubila bajo la regulación establecida en la Ley 9544 que no regía cuando dejó de laborar en Costa Rica?. Consideran que, jurídicamente la respuesta debe ser negativa y se debe jubilar bajo las condiciones del régimen al que cotizó esos 20 años. Estiman que, de esa manera, no puede interpretarse -de manera tan fría y acrítica- el término “residencia” y excluirlo de la estrecha relación que tienen con el término “pertenencia” desarrollado por el Tribunal Constitucional pues, aducen que, para proteger a este segundo, es que se aplica el primero.

Indican que el artículo 29 del Convenio 10 de la OIT, señala:

“1. La prestación mencionada en el articulo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

(a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia” (lo resaltado es del memorial).

Aducen que, en igual sentido, debe verse el artículo 18 del Convenio 128 de la OIT. Manifiestan que lo primero que se debe tener claro es que, al indicar 30 años de cotización o de empleo, se hace referencia a cotizaciones en diferentes regímenes durante esos 30 años, pero que no alcanzan 20 años en uno determinado, así, entonces y aún con esa cantidad de años, no se alcanza la residencia en ningún régimen y, por tanto, en cumplimiento de la obligación establecida en los artículos 25 del Convenio 102 y 14 del Convenio 128 de la OIT, el Estado miembro debe garantizar la prestación (jubilación o pensión). 17) Señalan que corresponde ahora determinar lo que significa “período de calificación” que, según el artículo 1 inciso f) del Convenio 102 de la OIT, significa: “la expresión período de calificación significa un período de cotización, un período de empleo, un período de residencia o cualquier combinación de los mismos, según pueda ser prescrito”; en igual sentido, señalan el artículo 1 del Convenio 128 también de la OIT. Manifiestan que, entonces, no se debe descontextualizar la normativa indicada al interpretar fríamente residencia sola o simplemente como el lugar donde se vive, pues bajo ese argumento y la interpretación puramente normativa, se tendría que, al vivir 20 años en Costa Rica, se podría solicitar la jubilación, lo que en su criterio deviene en una interpretación incorrecta y el período de calificación entonces pueden ser los 20 años de residencia (geográfica, sí, pero en el entendido del abrigo de determinado sistema de jubilaciones), como también pueden ser los 30 años de cotización en diferentes regímenes, sin alcanzar los 20 años en uno en concreto. Argumentan que, en resumen, el período de residencia no es otra cosa que un período de ‘‘PERTENENCIA” a un determinado régimen, por haber cotizado en éste durante determinado tiempo, que no es otro que el tiempo de residencia en el país y de cotización en un determinado régimen en esa zona o área geográfica regida bajo determinada ley. 17) Añaden que otra normativa internacional de interés aquí es el Convenio de la OIT 157, sobre la conservación de los derechos en materia de seguridad social, siendo que, en ese Convenio en su artículo 6, se establece la necesidad de que los Estados desarrollen un sistema de conservación de los derechos en curso de adquisición, sea como derechos adquiridos o como expectativas legítimas. Añaden que el artículo 7 del Convenio indicado habla de la necesidad de conservación de derechos en curso de adquisición, previendo la totalización de los “períodos de seguro”; por su parte, el artículo 1 inciso J de este Convenio, aclara que la expresión “Períodos de Seguro” designa períodos de cotización, empleo o residencia, según se definan o reconozcan como períodos de seguro por la legislación bajo la cual se hayan cumplido. Aducen que la anterior explicación, para reiterar la necesidad de no ver el término “residencia" como simplemente los años que se reside en un lugar determinado, sino como una medida en cantidad de años laborando bajo determinado régimen y, durante los cuales, ha cotizado por 20 años; por tanto, esa persona trabajadora ha adquirido el derecho de jubilarse bajo esas reglas de ese país concreto. Indican que, por lo anterior, cuando los Convenios 102 y 128 hablan de residencia, hacen referencia a la “pertenencia” a un determinado régimen en un determinado país, siendo que, si es por un período de 20 años, crea la expectativa legítima o incluso el derecho subjetivo adquirido de pensionarse bajo las reglas establecidas en ese sistema jubilatorio; de ahí que, la primera interpretación dada al término por parte del Tribunal Constitucional, es la correcta. Manifiestan que, para fundamentar aún más la situación jurídica que pretenden defender, se tiene que en ninguno de los Convenios de la OIT bajo análisis -102, 128 y 157-, se habla de manera concreta del término “pertenencia”, y ello obedece a que la forma en que es abordado el derecho de una persona trabajadora de acogerse a un determinado régimen y no a otro, según su conveniencia, es utilizando el término de “residencia", el que consideran que se puede asimilar al de pertenecer a determinado régimen durante un tiempo determinado (20 años) y, de esa manera, se crea el derecho subjetivo de ser cobijado por las condiciones establecidas en ese régimen. En otras palabras, aducen que los artículos 29 del Convenio 102 y 17 del Convenio 128, ambos de la OIT, deben entenderse en el sentido de que, para efectos de la jubilación o pensión cuando se haya laborado bajo el amparo de diferentes regímenes, ésta debe garantizarse con las reglas de uno en concreto (residencia), por lo menos a las personas protegidas que hayan cumplido antes de la contingencia con 20 años de residencia, que claramente no es simplemente residir en un determinado lugar geográficamente hablando, sino haber cotizado en el régimen vigente en ese lugar donde geográficamente se labora. Manifiestan que, de esa manera, resulta jurídicamente correcto por sus efectos positivos frente al administrado (principios pro omine y pro libértate), entender que al haber cotizado en determinado sistema durante 20 años o más, se adquiere el derecho subjetivo a jubilarse o pensionarse bajo estas reglas, tanto es así que es justamente el plazo contemplado -aunque para efectos negativos al administrado-, en los artículos 224, 224 bis y 236 de la Ley 9544; artículos que afirman cuestionar por hacer nugatorio el derecho a jubilación antes de cumplir esos 20 años. Manifiestan que, en ese mismo orden de ideas, se tiene que en el Estudio General de la Comisión de Expertos en Aplicación de Convenios y Recomendaciones OIT Ginebra, en relación con la protección de la vejez por la seguridad social, Conferencia Internacional del Trabajo, 76 reunión 1989, específicamente en los párrafos 105 y 127, se indica respecto de esa interpretación relacionada con el término "residencia", lo siguiente:

“A este respecto, procede señalar que las medidas indicadas en el artículo 30 antes mencionado deben adoptarse en el plano interno, por consiguiente, no se trata de medidas que resulten necesarias en el plano internacional para garantizar la conservación de los derechos en curso de adquisición en el caso de trasladar la residencia de un país a otro (...) La cuestión de la conservación de los derechos en curso de adquisición se plantea también cuando el asegurado está sujeto o depende de varios regímenes de seguridad social durante su vida laboral (...). Se trata en este caso de la coordinación interna de diferentes legislaciones de seguridad social, cada una de las cuales exige el cumplimento de un período de calificación” (los resaltados son del memorial).

Añaden que, como se ve con meridiana claridad, el término “residencia" según la misma Organización Internacional del Trabajo, no debe descontextualizarse y analizarse fría y exclusivamente como “lugar de residencia” o desde un punto de vista “geográfico" pues la conservación de los derechos en vías de adquisición se refiere a situaciones muy particulares, como es el cambio de residencia, o el cambio de un régimen de jubilación a otro, especialmente en el caso de los países en que existe pluralidad de sistemas, o como en el caso bajo estudio cuando se requiera hacer de una reforma y determinar a quienes afecta y quienes entran en el período de transición en la conservación de los derechos en vías de adquisición. Advierten que la Organización Internacional del Trabajo, al hacer referencia a la conservación de los derechos en vías de adquisición, no se refiere a la imposibilidad de los sistemas jubilatorios en modificar sus condiciones a futuro, pero si a la obligatoriedad de observar la conservación indicada; de esa manera, si un trabajador ha cotizado en determinado territorio por 20 años y ello le hace acreedor al derecho a jubilarse bajo ese régimen (conservación de los derechos en vías de adquisición), con igual razón quien ha trabajado en Costa Rica, cotizando para el régimen de jubilaciones y pensiones del Poder Judicial durante 20 años y sufre una reforma, mantienen el derecho de jubilarse bajo dicho régimen; obviamente en ambos casos al cumplir con los requisitos señalados según ese régimen donde cotizó ya los 20 años. Indican que debe analizarse lo dicho por la O.I.T. en la Conferencia Internacional del Trabajo, 67ª reunión 1981, en cuanto a la conservación de los derechos de los trabajadores migrantes en materia de Seguridad Social (Revisión del Convenio No. 148) OIT, Ginebra, que en su página 25, dispone:

“La adquisición del derecho a las prestaciones de seguridad social no está sometida a las mismas condiciones en las diferentes legislaciones de seguridad social. En efecto, en algunas de ellas el derecho se adquiere al terminar o a medida que cumplen los períodos de calificación en materia de seguro, de empleo, de actividad profesional o de residencia. Cuando dichos períodos se han cumplido, el derecho se mantiene hasta la fecha de realización de la contingencia, bien durante un límite de tiempo determinado, bien sin limitación de duración, a veces con la condición de que el interesado cumpla nuevos períodos de calificación, con vistas a mantener o a recuperar el derecho. Por el contrario, según otras legislaciones, en las contingencias que justifican la concesión de prestaciones, el derecho depende exclusivamente de la residencia del demandante en el territorio de país considerado teniendo o no en cuenta su nacionalidad, pero sin ninguna condición de previo periodo de calificación, o a reserva de una condición de residencia muy reducida” (los resaltados son del memorial).

Indican que, a pesar de que la Organización Internacional del Trabajo no lo manifiesta de manera explícita a través de sus convenios, de los textos recién transcritos que han servido de base para la normativa citada, se deduce que efectivamente los Estados Miembros tienen la obligación de respetar la conservación de derechos en vías de adquisición, circunscritos a una realidad muy particular, cual es el cambio de residencia o de régimen determinado en el cuál se ha venido cotizando para una jubilación o pensión. 18) Añaden que, de la mano con lo expuesto hasta aquí, un aspecto constitucionalmente cuestionable respecto de la Ley 9544, es la inobservancia a un régimen de transición adecuado y justo para las personas trabajadoras del Poder Judicial que, si bien es cierto, no habían adquirido el derecho a pensionarse por no tener 30 años de servicio o 62 años de edad (requisitos de la Ley 7333 derogada), tampoco pueden ubicarse en una posición de “simple expectativa" para todos los grupos de personas que laboran para el Poder Judicial. Consideran que la Ley 9544 establece un derecho adquirido pero, de manera arbitraria, fija el período de beneficio en 18 meses, sin contar con criterios técnicos que lo justifiquen. Indican que no se está en discusión de si existe o no un “derecho adquirido”, o de si se está frente a una "expectativa legítima”, pues la situación jurídica consolidada existe, tal y como bien se entiende del Transitorio VI de la Ley 9544, que estableció un régimen de transición. Recuerdan que el artículo 34 de la Constitución Política establece que ninguna ley podrá afectar situaciones jurídicas consolidadas, por ello, para la población laboral del Poder Judicial, resulta fundamental determinar el criterio técnico-científico que sirvió de base para determinar esa transición temporal en 18 meses y no en 10 años (20 de servicio). Aducen que el artículo 30 del Convenio 128 de la OIT establece:

“La legislación nacional deberá, bajo condiciones prescritas, prever la conservación de los derechos en curso de adquisición respecto de las prestaciones contributivas de invalidez, vejez y sobrevivientes” (los resaltados son del memorial) Añaden que, respecto de lo indicado, el producto IICE_6 en el punto 8 sobre consideraciones finales, concretamente en cuanto al punto b) sobre el “transitorio” determina esa posibilidad entre los dos y cinco años (no 18 meses); sin embargo, por los efectos que tendrían sobre la solvencia (si resultarían considerables o no para su aplicación), la conclusión textualmente señala:

“Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo” Consideran que lo anterior indica, sin lugar a dudas, que el tema del transitorio y sus implicaciones actuariales no fue analizado para determinar, con base técnico- científica, si era o no viable -desde la perspectiva de la sostenibilidad actuarial- que fue para lo que se contrataron los servicios del IICE, esa posibilidad de un transitorio de 5 o 10 años (20 o 25 años de servicio y no 28 años y 6 meses) y, de esa manera se afectara a la menor cantidad posible de personas trabajadoras del Poder Judicial con derechos en vías de adquisición. Sostienen que, por tal razón, la Asamblea Legislativa, de manera infundada, arbitraria y antojadiza, tomó una decisión de crear ese derecho adquirido o situación consolidada, solamente a las personas que estaban a un año y medio de cumplir alguno de los requisitos de la Ley derogada 7333. Añaden que, incluso, se puede ver que dicho informe IICE_6 entra a "suponer" sobre aspectos absolutamente subjetivos, como que otorgar un transitorio de 5 años o más generaría que los actores ampliaran ese período de transición -de manera infundada técnica y científicamente-; incluso indica que la aplicación de un transitorio podría venir a “atrasar” o posponer los ajustes, pudiendo “dar la impresión” de que éstos no dieron los resultados queridos. Indican que, entonces, para "no dar esa impresión", es mejor no hacer el estudio y afectar -sin mayor justificación- las situaciones jurídicas consolidadas de personas con 20 años de laborar para el Poder Judicial. Señalan que debe recordarse lo indicado en el producto IICE_6, en el punto 8 sobre consideraciones finales, concretamente en cuanto al punto b) sobre el “transitorio" en el que se determina esa posibilidad entre los 2 y 5 años; sin embargo, por los efectos que éstos tendrían sobre la solvencia (si resultarían considerables o no para su aplicación), la conclusión dijo que “para valorar adecuadamente el efecto de un aumento de este transitorio sería necesario realizar un análisis actuarial completo”. Así las cosas, afirman entonces que no existe estudio que explique técnica y científicamente, el por qué 18 meses y no 20 años como transitoriedad y en aras de afectar a la menor cantidad de personas trabajadoras posible. 19) Aducen que 18 meses resultan ser un mínimo que se ha venido considerando; sin embargo, dada la gravedad en las reformas realizadas por parte de la Asamblea Legislativa, en atención a los principios constitucionales de proporcionalidad y de razonabilidad, ese mínimo debió justificarse, así como el por qué se tomó una decisión y no otra menos gravosa si, en ambos casos, se podría conseguir igual fin, sea la solvencia actuarial. 20) Recuerdan que el Producto IICE_6 establece que, en un panorama positivo, habría un superávit de 0.43 millón de millones -según compendio resumen #7ª- y de 0.65 millón de millones según el compendio resumen #7b- por lo que estos panoramas presentan la posibilidad de aplicar un transitorio similar al establecido en la reforma normativa de los Regímenes Especiales de Pensiones con cargo al presupuesto para contener el gasto de pensiones Ley 9388 que, en su Transitorio III establece dicho plazo de transición en 5 años. Añaden que, no obstante lo anterior, esta posibilidad se cerró a las personas que tienen 25 años o más de trabajar en el Poder Judicial pues no existe un estudio técnico-científico que determine si, actuarialmente, ello era posible o, incluso, si esa posibilidad se podía aplicar a las personas que, al momento de entrar a regir la reforma, cumplieran 20 o más años de servicio al Poder Judicial. 20) Indican que, por lo anterior, al causarse una afectación tan gravosa, debe contarse con un documento técnico-científico que dé sustento a la aplicación de un transitorio que cobije solamente a las personas que, al entrar en vigencia la nueva ley, tuvieran 28 años y 6 meses de servicio; caso contrario, esa decisión deviene en inconstitucional por carecer de un estudio técnico al respecto y, por tanto, en su criterio, resulta violatoria al principio de interdicción de la arbitrariedad, entre otros de raigambre constitucional como lo han venido manifestando. Argumentan que, resumidamente, lo que se cuestiona es la ausencia del criterio técnico-científico para determinar el alcance temporal a las personas beneficiarias de ese derecho, pues en ninguna de las partes del estudio actuarial realizado por el IICCE (1 a 6), existe una justificación que determine por qué esa situación jurídica y porqué decide el legislador que alcance o cobije solamente a las personas que se encuentren a 18 meses de cumplir con alguno de los requisitos de la ley derogada al momento de publicación de la Ley 9544. Estiman de importancia resaltar que el legislador sí reconoce un derecho subjetivo adquirido a jubilarse bajo el régimen derogado, solamente que establece el plazo de ese derecho, en un período sumamente corto, perjudicando de esa manera a un considerable grupo de personas que han construido el sistema bajo expectativas legítimas que ahora no se cumplirán y, en consecuencia, en su criterio, consideran que existe un abuso arbitrario de imponer condiciones perjudiciales, sin criterios técnicos, primando la idea de perjudicar al sector laboral del Poder Judicial. 21) Aunado a lo anterior, consideran que también se da una violación a principios de género relacionados con la edad para pensionarse, ello por cuanto, el artículo 224 de la Ley 9544 establece que, para obtener la jubilación o pensión “completa”, las personas que trabajan en el Poder Judicial deben cumplir dos requisitos: 35 años de servicio y 65 años de edad; norma que no hace diferencia alguna para recibir dicho beneficio entre hombres y mujeres, pero que, además, está en evidente contradicción con lo establecido en el artículo 71 de la Constitución Política. Argumentan que se está frente a un claro ejemplo de discriminación positiva. Señalan que el Poder Legislativo, materializó por la vía de creación de la norma, una discriminación estructural en contra de la población femenina que labora dentro del Poder Judicial pues el artículo 224 de la Ley 9544 no hace ninguna distinción, por edad o tiempo de servicio en razón de género. Señalan que, en cuanto a ese tema, la OIT ha señalado que el trabajo femenino debe abordarse con medidas específicas, como lo disponen la Constitución de la OIT, el Convenio 100 sobre Igualdad de Remuneración, el Convenio 111 sobre Discriminación en el Empleo y la Ocupación, el Convenio 156 sobre los Trabajadores con Responsabilidades Familiares y el Convenio 183 sobre la Protección de la Maternidad. Agregan que, además, entratándose de normativa internacional sobre Derechos Humanos, se suma la Resolución Relativa a la Promoción de la Igualdad de Género, la Igualdad de Remuneración y la Protección de la Maternidad, la Resolución Relativa a la Igualdad de Género como Eje del Trabajo Decente, así como también -y no menos importante- otros Instrumentos Internacionales de Derechos Humanos como la propia Carta de las Naciones Unidas, las conclusiones alcanzadas por el Consejo Económico y Social de las Naciones Unidas con relación a la integración de la perspectiva de género, la Convención Sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW), la Plataforma de Acción de Beijing (1995 y su seguimiento) y los Objetivos del Desarrollo del Milenio; instrumentos todos que promueven la definición de puntos focales en la tutela de los derechos de las mujeres dentro del ámbito laboral. Argumentan que, en Costa Rica, el Instituto Nacional de Estadística y Censo (INEC) ha señalado que la tasa efectiva de tiempo invertido en trabajo doméstico en Costa Rica es de 5 horas y 14 minutos diarios frente a 1 hora y 22 minutos de los hombres (según INEC 2006-2011). Señalan que, por su parte, la OIT (Informe 2016) ha establecido que, en el mundo, las mujeres invierten 2 veces y medio más en trabajo doméstico que los hombres, según los datos internos de trabajo familiar y doméstico. Manifiestan que, todos esos argumentos, obligan al Legislador a que, en caso de no aplicar criterios de género, como lo es el caso de la edad o los años de servicio establecidos en el artículo 224 de la Ley 9544, deba contar con respaldo técnico-científico que lo avale. Argumentan que, en este caso, en ninguno de los productos contratados y entregados por el MCE (1 a 6) al Poder Judicial, se establece la justificación del por qué no se da el trato especial al caso de las mujeres trabajadoras del Poder Judicial, tal y como la normativa constitucional e Internacional indicada manda. Consideran que debe anotarse lo que se indica en el oficio IICE-186-2017 -cuestionado supra-, en su página 3, punto c en el que se consignó expresamente: “El equipo del IICE no considera necesario establecer distinciones adicionales por concepto de género”. Afirman que es un tremendo argumento para eliminar la inclusión de criterios de tipo “género” dentro de la ley, pero sobre todo para obviar la aplicación directa del “copiada”, pues el señor indicado adjunta solamente una copia a su archivo personal, tal y como se desprende de esa misma nota. 22) Aducen que el documento IICE-0186-2017 no puede, ni debe, considerarse una ampliación a ningún estudio técnico capaz de ofrecer sustento a la normativa aquí impugnada, y reiteran lo dicho líneas atrás en cuanto a que ese documento -suscrito por el señor José Antonio Cordero Peña- no fue avalado por ningún miembro de los que, con anterioridad, realizaron y suscribieron los productos oficialmente entregados (IICE 1 a 6); oficio que estaba dirigido a la señora Nery Agüero Montero de manera exclusiva y personal por el señor Cordero Peña. Advierten que, si bien es cierto, en el párrafo segundo de dicha nota se indica que el equipo del IICE estudió la propuesta del Dictamen Afirmativo de Mayoría, debe resaltarse que la propuesta del Dictamen de Minoría también tomó como referencia los marcos IICE 3 e IICE 4. Agregan que en ese oficio de cita no se indica "cuáles" miembros del equipo del IICE, supuestamente, le acompañan en esa posición, pues fueron varias las personas que participaron en esos productos (IICE 3 y 4), pero más importante, que debe haber una participación mínima que no consta en esa nota personal que suscribe el señor Cordero Peña. Añaden que, además de no indicar quiénes participan, lo cierto es que ese oficio tampoco es rubricado o suscrito por parte de ninguna otra persona, de manera que, aunque no hubiesen sido mencionados, al menos lo habrían firmado o suscrito (respaldado), por lo que adolece de aspectos objetivos que puedan dar la suficiente fortaleza a ese documento como para venir a contrariar el Derecho de la Constitución y el Principio del Control de Convencionalidad. Indican que, por esos motivos, aunque se quiera asimilar el oficio IICE-186-2017 del 18 de agosto de 2017 con una ampliación a aquéllos estudios IICE, o a un estudio válido nuevo, lo cierto del caso es que no lo es y no resulta un criterio científico, técnico y objetivo para justificar que el Poder Legislativo, sin contar con un estudio técnico real, haya dejado de aplicar los criterios por género requeridos, entre otros. Señalan que, si a pesar de lo anterior, se quiere otorgar alguna fuerza a ese documento, éste sigue careciendo de la justificación técnico- científica para excluir los obligados criterios sobre género. En razón de lo dicho sobre este punto de género, también consideran que el artículo 224 de la Ley 9544, es inconstitucional. Finalizan el memorial solicitando que, al considerar que existen violaciones flagrantes al Derecho de la Constitución, se declaren inconstitucionales los artículos 224, 224 bis y 226 de la Ley 9544, así como el transitorio VI, todos de la Ley 9544 y, en su caso, se dimensione como corresponde, determinando la conservación de los derechos en vías de adquisición de los trabajadores del Poder Judicial, de manera que las personas que, al momento de la publicación de la Ley 9544, hayan cumplido 20 años o más de cotizar para el régimen de jubilaciones y pensiones del Poder Judicial, se puedan pensionar o jubilar bajo los parámetros que establecía la Ley 7333 del 5 de mayo de 1993, publicada en alcance 24 de la Gaceta N° 124 del 1 de julio de 1993.

100.- El 21 de junio de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández Gutiérrez y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

101.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Araya García- de las 9 horas 30 minutos del 20 de junio del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

102.- Mediante oficio agregado al expediente electrónico el 22 de junio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6205 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Rónald Salazar Murillo, Ana María Picado Brenes, Alicia Salas Torres, Mauricio Chacón Jiménez, Ileana Sánchez Navarro, Hubert Fernández Argüello y Alejandro Delgado Faith.

103.- El 22 de junio de 2018 la Magistrada suplente Alicia Salas Torres; el 27 de junio siguiente el Magistrado suplente Mauricio Chacón Jiménez; el 28 de junio posterior los Magistrados suplentes Rónald Salazar Murillo, Hubert Fernández Argüello y las Magistradas suplentes Ileana Sánchez Navarro y Ana María Picado, formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

104.- En resolución de las 11 horas 23 minutos del 28 de junio de 2018 la Presidencia de la Sala Constitucional -Magistrado Araya García-, dispuso tener por separados a los Magistrados y Magistradas suplentes Sánchez Navarro, Chacón Jiménez, Fernández Argüello, Salas Torres, Salazar Murillo y Picado Brenes, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

105.- Mediante oficio agregado al expediente electrónico el 3 de julio de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6231 efectuado para la sustitución de los Magistrados y Magistradas suplentes Rónald Salazar Murillo, Alicia Salas Torres, Hubert Fernández Argüello, Ileana Sánchez Navarro, Mauricio Chacón Jiménez y Ana María Picado Brenes, manifestándose que debido a que la Sala originalmente había pedido 6 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que había disponibles, siendo seleccionados Anamari Garro Vargas, Lucila Monge Pizarro y Jorge Araya García.

106.- La Magistrada suplente Lucila Monge Pizarro -el 4 de julio de 2018- y la Magistrada suplente Anamari Garro Vargas -el 9 de julio siguiente-, presentan inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal 18-007819-0007-CO.

107.- La Presidencia de la Sala Constitucional ejercida por el Magistrado Jorge Araya García, en resolución de las 8 horas 05 minutos del 10 de julio de 2018, tuvo por separadas a las Magistradas suplentes Garro Vargas y Monge Pizarro del conocimiento de este proceso, y dispuso remitir el expediente a la Presidencia de la Corte Suprema de Justicia para lo que corresponda.

108.- Mediante resolución de la Presidencia de la Sala Constitucional -Magistrado Jorge Araya García- de las 9 horas 45 minutos del 10 de julio de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, disponiéndose continuar con la tramitación del expediente.

109.- El 21 de julio de 2018 se apersonan los accionantes para presentar recusación en contra del Magistrado suplente Alejandro Delgado Faith y manifiestan que el 12 de abril de 2018, la Sala Constitucional integrada por los jueces titulares Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, José Paulino Hernández Gutiérrez y Alejandro Delgado Faith, emitieron la sentencia No. 2018-005758 en la cual resolvieron la consulta legislativa presentada por miembros de la Asamblea en cuanto al proyecto de ley número 19.922 de reforma integral a los diversos regímenes de pensiones y normativa conexa y que, posteriormente, el 22 de mayo de 2018 se convirtió en la Ley 9544 aquí impugnada, la cual se publicó en La Gaceta No. 89 del 22 de mayo de 2018; Magistrados que ya emitieron criterio sobre la constitucionalidad de la normativa que ahora se impugna. Indican que, en esta acción de inconstitucionalidad, los Magistrados propietarios y los suplentes que ocupan plaza vacante, se inhibieron de su conocimiento y, de acuerdo con el procedimiento establecido en la Ley Orgánica del Poder Judicial, se efectuó el primer sorteo número 6205, siendo uno de los designados el suplente Alejandro Delgado Faith quien, ya ha emitido criterio sobre la constitucionalidad del proyecto de ley que dio origen a la normativa que ahora se reclama como inconstitucional. Argumentan que si bien es cierto, todos los Magistrados y la Magistrada titulares que ya han intervenido, estarían en la misma situación que el suplente Delgado Faith, también es lo cierto que el debido proceso consagrado en el artículo 29 inciso 2) de la Ley Orgánica del Poder Judicial establece que para garantizar lo más adecuadamente posible el principio de imparcialidad del juzgador, en los casos en que la causal concurra en los titulares y suplentes, los primeros serán rehabilitados conforme dicha normativa y, por esa razón, aducen que plantean esta recusación para la separación del conocimiento de este asunto en relación con el Magistrado suplente Alejandro Delgado Faith y que sea sustituido por el suplente que corresponda según el sorteo, considerando que la imparcialidad de este Magistrado está comprometida al haber emitido criterio en cuanto al fondo. Aducen que la Sala Constitucional en resolución número 2018-007210 de las 9 horas 40 minutos del 9 de mayo de 2018, denegó una solicitud de recusación parecida a ésta; sin embargo, estima que los supuestos que se invocan en esa resolución y en los precedentes que se citan, no resultan aplicables en cuanto a la situación que subyace en este caso. Argumentan que el motivo de la recusación en este proceso es, concretamente, el haber emitido criterio, no en un caso “similar” como se aduce en el precedente aludido, sino en el mismo asunto, es decir, se está ante un supuesto de identidad de sujetos (el colectivo judicial que es afectado por la legislación), objeto (el texto legislativo que en definitiva fue sancionado como ley) y causa (cuestionamientos sobre su constitucionalidad) que hace incompatible la posibilidad de la intervención del mismo magistrado, en este caso suplente, por cuanto ya ni siquiera existe duda sobre la forma en que podría resolver, sino que su criterio ha sido ya expresamente consagrado y expuesto en una resolución del mismo Tribunal Constitucional. Manifiesta que no es posible sustraerse, en ese supuesto, a la circunstancia cierta y notoria de que ya el Estado costarricense fue objeto de una condenatoria ante un Tribunal Constitucional por violar precisamente el principio de imparcialidad del juzgador, en una situación evidentemente idéntica, como fue lo que aconteció con la Sala Tercera de la Corte Suprema de Justicia en el caso Herrera Ulloa vs. Costa Rica, según sentencia del 2 de julio de 2004. Enfatizan que, en aquél supuesto, no fue óbice para la Corte Interamericana de Derechos Humanos, el que la citada Sala Tercera fuera un único Tribunal especializado, con la jurisdicción en todo el país, para tolerar que la misma integración de titulares resolviera en una misma causa, siendo determinante que dicho proceder viola la garantía convencional consagrada en el artículo 8.1 de la Convención; motivo por el cual, dentro de otros aspectos, se generó la condenatoria en contra del Estado costarricense, considerando que por ello resulta muy pertinente y provechoso tener en consideración la literalidad de lo dispuesto en aquélla ocasión. Añaden que, el Poder Judicial, incluida la Sala Constitucional como órgano estatal, no estaría exenta de cumplir las obligaciones que impone al Estado costarricense el Derecho Internacional de los Derechos Humanos, concretamente el debido proceso que dimana de la Convención Americana y específicamente en lo que se refiere al principio de imparcialidad. Manifiestan que conforme al artículo 11 párrafo 2 de la Ley de la Jurisdicción Constitucional, las resoluciones de esta sede no tienen ulterior recurso; sin embargo, ello no implica que sus decisiones no pueden generar, tal y como quedó claro en la resolución de la Corte Interamericana, responsabilidad para el Estado costarricense. Consideran que tanto para el ordenamiento jurídico nacional como internacional, el principio de resguardo de la imparcialidad del juzgador es determinante, tanto que, a nivel de la legislación nacional, se contemplan sanciones a nivel administrativo, e incluso penal, contra el funcionario que atente contra ese principio. Añaden que, en este caso, no es que pretendan arbitrariamente separar a los Magistrados de la Sala del conocimiento de esta causa, sino que, lo que acontece es que, como administrados -que incluso representan los intereses de una colectividad a la que se deben-, no podrían permitir que un magistrado que ya emitió criterio al respecto, vuelva a hacerlo, sobre todo cuando el ordenamiento jurídico así como el debido proceso legal, establecen un mecanismo para apartar al Magistrado Delgado Faith y que, en su lugar, resuelva una persona que no ha externado criterio respecto del objeto de la causa. Indican que la separación de un Magistrado que ya ha emitido criterio, no sobre un asunto similar o parecido, sino sobre el mismo objeto procesal, debe ser procedente aunque no esté contemplado expresamente en la Ley de la Jurisdicción Constitucional, pues pese a que exista esa omisión legislativa, ciertamente la Convención Americana de Derechos Humanos, conforme lo ha resuelto la misma Sala, estaría por encima incluso de la misma Constitución Política en la materia específica de la concesión de derechos humanos; así indudablemente que el principio de imparcialidad debe ser garantizado al amparo de la legislación tanto nacional, como convencional. Indican que si no se procediera de esa forma, se estaría haciendo un trato discriminatorio pues la Sala Constitucional ha integrado su procedimiento aplicando el artículo 29 inciso 2 de la Ley Orgánica del Poder Judicial, ante la invocación de las inhibitorias, tanto de titulares como suplentes, revirtiendo la competencia a los originales cuando éstos últimos se han inhibido también. En ese sentido, señalan que, si la Ley de la Jurisdicción Constitucional no regula expresamente lo relacionado a la forma de implementar el principio de imparcialidad del juez constitucional, tendría que recurrirse a las normas supletorias que correspondan. Estiman que, en el caso concreto, el Juez Natural estaría constituido por el Tribunal Constitucional que se integre de conformidad con la normativa establecida en el numeral 29 inciso 2) de la LOPJ, siendo que, la sustitución del Magistrado suplente Delgado Faith, daría pleno cumplimiento a la garantía del juez imparcial consagrado en el artículo 8.1 de la Convención Americana de Derechos Humanos que tiene fuerza superior a la Constitución Política. Argumentan que los artículos 72 y 87 de la LJC no establecen ninguna norma específica sobre la integración de la Sala respecto de supuestos en que se discuta un mismo objeto procesal, lo que obviamente debe resolverse conforme a las normas de inhibitoria, recusación y excusa, que son los institutos procesales establecidos para el resguardo del principio de imparcialidad, siendo que, una interpretación que pretendiera hacer recaer en esas normas la posibilidad de que un Magistrado que haya resuelto el mismo punto específico lo vuelva a hacer sin someterse a lo establecido en el artículo 19 inciso 2) de la LOPJ, estaría vulnerándose la garantía establecida en el artículo 8 inciso 1 de la Convención Americana de Derechos Humanos y, por ende, sería inconstitucional. Solicitan que se tenga a la vista la sentencia No. 2018-005758 de las 14 horas 40 minutos del 12 de abril de 2018. Finalizan pidiendo que se proceda a la separación del Magistrado Delgado Faith del conocimiento de esta acción de inconstitucionalidad en aras de garantizar la garantía procesal de juzgamiento de imparcialidad del juzgador.

110.- En escrito agregado al expediente el 13 de agosto de 2018 se apersona el Magistrado suplente Alejandro Delgado Faith para hacer referencia a la recusación interpuesta por los representantes de los promoventes, mediante la cual solicitan que se le separe del conocimiento del presente asunto. Argumenta que, según los intervinientes, por haber participado en voto 2018-5758 de las 14 horas 40 minutos del 12 de abril de 2018, ya emitió criterio en asunto idéntico y, consecuentemente, consideran que su criterio e independencia se encuentran comprometidos para conocer de la presente acción. Señala que la jurisdicción constitucional, a diferencia de la ordinaria o común, debe regirse por sus propias y particulares normas en aras de evitar que cualquier recurrente o autoridad accionada, pueda separar a los Magistrados del conocimiento de un asunto concreto y determinado, en contra de los principios generales del derecho de la irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural. Señala que el artículo 4, párrafo 2°, de la Ley de la Jurisdicción Constitucional dispone que el régimen orgánico de la Sala es el ahí establecido, así como en la Ley Orgánica del Poder Judicial. Por su parte, aduce que este último texto normativo, en su artículo 31, reconoce la peculiaridad de la Jurisdicción Constitucional al estatuir que, en materia de impedimentos, excusas y recusaciones "(…) se regirá por sus propias normas y principios". Continúa señalando que, debe advertirse, que uno de los principios del Derecho Procesal Constitucional (artículo 14 de la Ley de la Jurisdicción Constitucional), lo constituye el del juez natural (artículo 35 de la Constitución Política) según el cual, nadie puede ser juzgado por un tribunal ad hoc o especialmente nombrado para el caso "(…) sino exclusivamente por los tribunales establecidos de acuerdo con esta Constitución". Señala que el juez constitucional no puede ser considerado como un simple funcionario público o un juez de la legalidad ordinaria; en su rol primordial de contralor de la constitucionalidad de las normas del ordenamiento jurídico, el juez constitucional se ve -diariamente- confrontado a resolver situaciones en las cuales la noción de interés directo podría tener interpretaciones inconvenientemente amplias que lo podrían obligar a separarse de conocer de asuntos consustanciales a su función; sin embargo, no por ello, debe inhibirse o ser recusado en cada una de estas materias, ya que con ello se desvirtuaría su labor como juez supremo de la Constitución Política. Aduce que, al respecto, la propia Sala ha señalado que: "(...) Entre los principios del Derecho Procesal Constitucional pueden tenerse por vigentes y aplicables los desarrollados en forma generalizada por la doctrina, jurisprudencia y legislación comparadas, en el sentido de que en esta materia no caben recusaciones ni excusas- léase por motivos de simple recusación o excusa-, de manera que sus funcionarios sólo son separados- sea, excusarse o ser recusados o separados- cuando los tengan de impedimento, este mismo rigurosamente considerado en función de los fines, naturaleza y alcances de la Justicia Constitucional, para la cual prácticamente se reducen a uno sólo central: el interés directo del funcionario o sus inmediatos parientes en el caso y puntos concretos sometidos a su conocimiento". Manifiesta que no puede dejar de señalar que, si se considera que se le debe de separar del conocimiento de esta acción, con los mismos argumentos habría que separar a los demás magistrados que votaron el asunto de referencia y aunque los intervinientes hacen una diferenciación entre los magistrados titulares y los suplentes, esa distinción no es de recibo porque, cuando un magistrado suplente es llamado al conocimiento de un asunto, le corresponden las mismas obligaciones y deberes que al resto del pleno. Añade que, en concordancia con lo señalado, es del criterio de que no le asiste motivo alguno que comprometa independencia, máxime si se considera que no es funcionario judicial, ni lo ha sido y, por lo tanto, no se ve beneficiado, ni directa ni indirectamente, de lo que se resuelva en este asunto; no obstante, aduce que se atiene a lo que resuelva el Presidente de la Sala.

111.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Fernando Castillo- de las 10 horas 42 minutos del 16 de agosto de 2018, se rechazó la solicitud de recusación planteada por la parte accionante respecto del Magistrado Delgado Faith y se le declaró habilitado para conocer este asunto, disponiéndose además continuar con la tramitación del expediente.

112.- El 12 de febrero de 2019 se apersona el Magistrado Fernando Cruz Castro para manifestar que, en este expediente, y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que, desde agosto de 2018, ocupa el cargo de Presidente de la Corte Suprema de Justicia y, por ello, considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

113.- Mediante resolución de las 13 horas 21 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo- y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocer a la Magistrada suplente Marta Eugenia Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

114.- Sobre la Acción de Inconstitucionalidad No. 18-013217-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002487 de las 10 horas 04 minutos del 13 de febrero de 2019 se ordenó acumular esta acción de inconstitucionalidad 18-013217-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

115.- Por escrito recibido en la Secretaría de la Sala a las 12 horas 29 minutos del 23 de agosto de 2018, se presenta la acción de inconstitucionalidad número 18-013217-0007-CO interpuesta por Adriana Orocú Chavarría, mayor, casada, Jueza, con cédula 3-0317-0898, vecina de San José, en su condición personal y como Presidenta con facultades de apoderada generalísima de la Asociación Costarricenses de la Judicatura (ACOJUD); Ingrid Fonseca Esquivel, mayor, Jueza, portadora de la cédula número 1-0698- 0988l; Freddy Arias Robles, mayor, con cédula de identidad 1-727-493, Juez; Germán Esquivel Campos, mayor de edad, con número de cédula 1-0965-0647, Juez; Yerma Campos Calvo, mayor, Jueza, portadora de la cédula 1-0607-0534; Maribel Bustillo Piedra, mayor de edad, cédula 1-683-0430, Jueza; y los funcionarios y funcionarias judiciales: Pedro Valverde Díaz, mayor, con cédula 1-0634-0537; Juan Carlos Cubillo Miranda, mayor, cédula de identidad 5-0219-0266; Maíkel Coles Ramos, mayor, con número de cédula 2-0452-0646; Alonso Hernández Méndez, mayor, cédula de identidad 1-1145-0746; Ana Lucía Vásquez Rivera, mayor, cédula 1-0690-0133; Estrella Soto Quesada, mayor, cédula número 2-345-973; Mario Alberto Sáenz Rojas, mayor, cédula 1-0644, 0873; Paula Esmeralda Guido Howell, mayor, con cédula número 1-0675-0975; en contra de la "Ley que reforma el Régimen de Jubilaciones y Pensiones del Poder Judicial, (contenido en la ley 7333, de 5 de mayo de 1993 y sus reformas)" aprobada mediante Ley número 9544 del 24 de abril del 2018, publicada en La Gaceta número 89, del 22 de mayo de 2018. Como medida cautelar, solicitan que se suspenda la eficacia de la Ley 9544 impugnada en esta acción para evitar graves dislocaciones a la justicia y a la paz social, esto por cuanto está causando un grave daño a los funcionarios judiciales ya que creó una pensión menor a la prevista por el régimen de Invalidez, Vejez y Muerte (IVM) de la CCSS, así como también ha producido una gravísima reducción de los salarios de los actuales servidores que está generando la renuncia de decenas de funcionarios judiciales y gestiones de cambio de régimen de pertenencia de las pensiones, lo que al final daña el servicio público de administración de justicia. Indican que sustentan esta acción de inconstitucionalidad en un recurso de amparo interpuesto por los Jueces indicados al inicio, y funcionarios y funcionarias judiciales, en el que alegan que, con la aprobación y aplicación de la Ley 9544, se ocasiona una seria lesión al derecho de jubilación y al derecho a la igualdad; amparo en el que hicieron formal invocación de la inconstitucionalidad de esa normativa, como medio razonable para amparar sus derechos fundamentales, según lo dispuesto en el artículo 79 de la Ley de la Jurisdicción Constitucional. Argumentan que los jueces que están accionando en este expediente, son miembros la Asociación Costarricense de la Judicatura (ACOJUD) y, por ende, además de la legitimación incidental o indirecta -con sustento en el amparo de cita-, alegan la legitimación que tiene ACOJUD para presentar esta acción de inconstitucionalidad -de manera directa-, en ejercicio del derecho otorgado por el artículo 75 párrafo 2 de la Ley de la Jurisdicción Constitucional por cuanto se trata de la defensa del interés corporativo que atañe a la asociación profesional de los Jueces y Juezas del Poder Judicial, en favor de los derechos constitucionales de sus agremiados. Consideran que la drástica disminución en el monto de la pensión o jubilación, causa la desigualdad objetiva respecto de los pensionados bajo el régimen de Invalidez, Vejez y Muerte de la CCSS, quienes obtendrán una pensión mayor pero cotizan menos; además de la drástica reducción de los salarios de las personas juzgadoras con ocasión del alto porcentaje fijado en la ley y demás cargas aplicadas al régimen de pertenencia de pensiones implementado en la ley impugnada. Aducen que la ACOJUD es una entidad corporativa que tiene como uno de sus fines la defensa de los intereses de sus agremiados, lo cual le faculta para interponer esta acción de inconstitucionalidad de manera directa, con el fin de restablecer los derechos constitucionales a la retribución salarial y a obtener una pensión justa y equitativa, acorde al cargo y responsabilidad desempeñadas, en relación con los numerales 9, 11, 33, 57, 153 y 177 párrafo 3 de la Constitución Política. Argumentan que la ley que se impugna afecta de manera directa, los derechos de los asociados y por tratarse de una norma auto-ejecutiva (auto-aplicativa), no necesita ninguna otra para ser eficaz, ni siquiera un reglamento administrativo, de modo que ya se está aplicando y está causando daño directo, por lo que estiman que la ACOJUD tiene legitimación procesal activa.

Los accionantes alegan que en relación con la Ley 9544, hay motivos de inconstitucionalidad tanto por la forma y por el fondo. En cuanto a la forma, A) en primer lugar, aducen que se ha omitido plantear consultas a las instituciones autónomas y a los bancos del Estado. Sobre el particular, citan lo dispuesto en el artículo 190 constitucional:

“ARTÍCULO 190.- Para la discusión y aprobación de proyectos relativos a una institución autónoma, la Asamblea Legislativa oirá previamente la opinión de aquélla." Aducen que sobre la relevancia de la obligación de la consulta constitucional relativa a las instituciones autónomas -como la CCSS-, la Sala ha señalado en lo conducente, lo siguiente:

"(…) La simple consulta obligatoria dispuesta finalmente en el articulo 190 (…) convierte a la institución consultada en una suerte de organismo auxiliar de la Asamblea para la toma de una decisión que corresponde a ésta en exclusiva (artículo 121 constitucional). No es la consulta, sin embargo, una mera formalidad procesal, carente de sentido o finalidad sustantiva, puesto que con ella se persigue una finalidad tocante a la idoneidad o calidad de la ley para obtener los resultados concretos que se quiere lograr con ella. De tal manera que la consulta debe hacerse en oportunidad procesal tal que la Asamblea tenga oportunidad real de escuchar la opinión consultiva, es decir, de atenderla y considerarla; dicho de otro modo, lo que explica y justifica el artículo 190 es que la Asamblea cuente realmente con una oportunidad suficiente, durante el proceso, para conocer y apreciar la opinión consultiva antes de tomar una decisión. Se trata, por otra parte, de una opinión que se pide sobre un proyecto determinado, que no es otro que el que ha sido sometido al conocimiento legislativo mediante el ejercicio de la iniciativa. La consecuencia de la opinión puede ser la enmienda del proyecto, caso en el cual (sobre todo si esto ocurre en el llamado usualmente "trámite de Comisión") implica que la consulta no versa necesariamente sobre el "proyecto definitivo”, por el contrario, la consulta en tal supuesto, habría conducido la voluntad legislativa a configurar un texto diverso del originalmente presentado.

4. Todo lo expresado anteriormente se refiere, pues, a la infracción que se comete por haber trascendido durante el procedimiento legislativo los límites del derecho de enmienda, alterando materialmente el texto del proyecto de un modo esencial. Violación a la que se suma, como se ha visto, una transgresión inevitable de lo dispuesto en el artículo 190, dado que en el caso, concreto el llamado "proyecto definitivo", siendo materialmente diverso, no fue tampoco consultado. Debe quedar claro, eso sí, que, si no se hubiera producido esta segunda infracción, este hecho habría saneado el vicio que ya invalidaba la producción de la Ley No. 7013. Por todo lo antes expuesto, procede declarar inconstitucional y por ende absolutamente nula la disposición normativa de que es objeto esta acción" (ver sentencia de la Sala Constitucional número 1633-93 de las 14 horas 33 minutos del 13 de abril de 1993).

Argumentan los accionantes que la ley denominada "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas", que se convirtió en Ley N° 9544 de 22 de mayo de 2018, reformó en su artículo 1º el numeral 226 de la Ley Orgánica del Poder Judicial que establece funciones y competencias a departamentos de la Caja Costarricense de Seguro Social en orden al traspaso de cuotas del Régimen de Invalidez, Vejez y Muerte que administra este órgano constitucional para engrosar el del Poder Judicial. Agregan que, adicionalmente, el artículo 234, reformado por la Ley N° 9544, dispone en lo conducente:

"Artículo 234- Las personas que hayan laborado en el Poder Judicial y que hayan cesado en el ejercicio de sus cargos sin haber obtenido los beneficios de jubilación o pensión no tendrán derecho a que se les devuelva el monto de las cuotas con que han contribuido a la formación del Fondo de Jubilaciones y Pensiones.

Sin embargo, sí tendrán derecho a que el monto de las cuotas obreras, patronales y estatales con que han contribuido a la formación del Fondo de Jubilaciones y Pensiones del Poder Judicial se trasladen mediante una liquidación aduanal a la Caja Costarricense de Seguro Social (CCSS), o ala institución administradora del régimen básico en el que se les vaya a otorgar la jubilación o pensión. (...)" (los resaltados son del memorial).

Manifiestan que, a partir de ambas normas, se concluye claramente la posibilidad de que un funcionario del Estado que haya cotizado al Régimen de Invalidez, Vejez y Muerte de la CCSS, traslade el monto de sus cuotas de ese fondo de pensiones general tutelado por la Constitución Política en su artículo 73, al Régimen del Poder Judicial, siendo que la CCSS tiene la nueva obligación de girar el monto de esas cotizaciones (obrero, patronal y estatal) mediante una liquidación actuarial, a favor del Fondo del Poder Judicial. Agregan que, por otra parte, los artículos 227 y 233 reformados por el supra citado artículo 1º de la Ley N° 9455, también dispone en el párrafo 1º, en lo conducente, que:

"Artículo 227- El servidor judicial que se incapacite de modo permanente para el desempeño de su cargo o empleo, así declarado por la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social (CCSS) o por la instancia que esa institución designe, y hubiera laborado por cinco años o más para el Poder Judicial, será separado de su puesto con una jubilación permanente. (...)" (los resaltados son del memorial) "Articulo 233- Se le suspenderá el goce del beneficio a la persona jubilada, durante el tiempo que esté percibiendo cualquier otro sueldo del Estado, sus instituciones y de las municipalidades.

Esta limitación no se aplicará cuando imparta lecciones en las instituciones de educación superior.

Cuando el beneficio haya sido acordado por invalidez y la persona desee reincorporarse al sector laboral, deberá solicitar el permiso respectivo y contar con la aprobación por parte de la Comisión Calificadora del Estado de la Invalidez o de la instancia que la Caja Costarricense de Seguro Social (CCSS) designe, siempre que la nueva actividad sea diferente a aquella por la cual se le declaró inválido" (los resaltados son del memorial).

Argumentan que, con esta nueva normativa, se le atribuyeron competencias a la "Comisión Calificadora del Estado de Invalidez de la Caja Costarricense del Seguro Social” sin que se le haya consultado a la CCSS sobre la conveniencia y oportunidad respectiva, y se facultó el traslado de cuotas del Régimen General de Pensiones que administra la Caja Costarricense del Seguro Social, conforme lo dispone la Constitución Política. Consideran que la ley impugnada es nula por inconstitucional porque estiman que la consulta a la CCSS era obligatoria, a la luz de los artículos 73, 74, 188, 189 y 190 de la Constitución Política pero en el trámite legislativo, no se consultó a la CCSS ninguno de los textos sustitutivos aprobados por la Comisión Especial -el 13 de septiembre del 2016 y el 29 de marzo del 2017-, ni tampoco del texto sustitutivo final aprobado el 29 de julio del 2017, que fuera dictaminado con criterio afirmativo de mayoría publicado en el Diario Oficial La Gaceta, Alcance N° 189 del 4 de agosto de 2017; incumpliéndose así la regla de la consulta obligatoria exigida en los anteriores mandatos constitucionales pese a que esas propuestas normativas incidían en las competencias constitucionalmente asignadas a este órgano constitucional. Refieren que la normativa aprobada en el seno legislativo, cambió la organización y competencias de la CCSS como institución autónoma, teniéndose en consideración además que, con la reforma introducida por la Ley impugnada, se puede afectar de manera directa y perjudicial el fondo de pensiones y jubilaciones que administra la Caja Costarricense del Seguro Social. Argumentan que, por los mismos motivos, se acusa de inconstitucional del Transitorio II de la Ley número 9544 que dispone:

"TRANSITORIO II.- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N.° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean" (resaltados del memorial) Argumentan que, nuevamente, se da un directo y grave quebranto de los artículos 73, 74, 188, 189 y 190 de la Constitución Política, en vulneración de la autonomía de la CCSS como institución que tutela el Régimen de Seguridad Social protegido por la Constitución. Manifiestan que, además, en la Ley 9544 se da una inconstitucionalidad por omisión de la consulta obligatoria a los bancos del Estado y, en tal sentido, aducen que partiendo del artículo 190 de la Carta Fundamental, se acusa el mismo vicio que el recién analizado, sólo que ahora porque la omisión de consulta se dio en relación a los bancos del Estado que, por norma constitucional, son instituciones autónomas. Señalan que, con la modificación del artículo 240 bis, introducida por la Ley N° 9544 aquí impugnada, se afectó la autonomía de los bancos estatales, toda vez que esta norma dispone en su párrafo segundo lo siguiente:

"(…) Dicha Junta está autorizada para colocar los recursos del Fondo de Jubilaciones y Pensiones del Poder Judicial, en las siguientes posibilidades de inversión:

• a)Hasta un veinticinco por ciento (25%) del Fondo, en operaciones de crédito por intermedio de instituciones bancarias del Estado, cooperativas, cajas de ahorro, asociaciones y sindicatos de servidores, jubilados o pensionados del Poder Judicial, que cuenten con la plataforma que Íes permita administrar dichos recursos y estén supervisadas y autorizadas por la Superintendencia General de Entidades Financieras (Sugef), lo anterior para financiar préstamos para construcción o mejoramiento de vivienda y otros de carácter social para sus asociados, según el reglamento que al efecto debe dictarse, así como para la compra de terrenos, ampliación, remodelación, reforzamiento y construcción de edificios destinados al Poder Judicial, conforme a la reglamentación que se emita al efecto.
• b)Al menos un treinta por ciento (30%) del Fondo, en títulos emitidos por el sector público.
• c)En instrumentos financieros emitidos por fideicomisos:
• 1)Con entidades Financieras, públicas o privadas, para colocar recursos destinados a préstamos personales de microempresas y vivienda.
• 2)Con entidades financieras, públicas o privadas, para la participación en el desarrollo de provectos productivos v de infraestructura de interés nacional o social” (los resaltados son del memorial).

Argumentan que esta norma establece graves limitaciones a la autonomía administrativa que, constitucionalmente, ejercen los bancos del Estado bajo la égida de los artículos 188, 189 y 190 Constitucionales; nótese que las reglas nuevas limitan sus posibilidades de crédito sometiéndolos a obligaciones porcentuales de inversión que afectan directamente su autonomía. Añaden que debe tenerse en consideración que, las decisiones en esta materia, son técnicas y están protegidas por el régimen de autonomía bancaria y, sin embargo, nada de lo regulado ni sus alcances jurídicos, financieros, contables ni de otra índole, fue consultado a las entidades bancarias que conforman el Sistema Bancario Nacional; razón por la cual esta omisión hace que la totalidad de la ley sea nula, por inconstitucional, al quebrantar, una vez más, el mandato del numeral 190 de la Constitución Política. B) Consideran que, por la forma, además de lo señalado supra, la Ley 9544 contiene vicios de inconstitucionalidad al haberse dado violación al procedimiento legislativo. En ese sentido, indican que, sobre la base de la consideración de que el Reglamento de la Asamblea Legislativa es un parámetro de constitucionalidad y, además, de que tiene rango constitucional conforme a lo dispuesto en el artículo 121 inciso 22) de la Constitución Política y el artículo 73 de la Ley de la jurisdicción Constitucional, su incumplimiento en el trámite legislativo de los proyectos de ley, acuerdos y demás asuntos de su competencia en el seno legislativo, se traduce en una grosera violación al bloque de constitucionalidad que los hace inconstitucionales y, por lo tanto, absolutamente nulos. Señalan que este Reglamento de la Asamblea Legislativa y sus reformas, regulan el procedimiento constitucional para la aprobación de las leyes que están tutelados bajo la protección de los artículos 73, 105,106, 119,121, 123, 124, 129, 167, 188, 189, 190 Constitucionales. Indican que, con base en el contenido y mandato del Reglamento de la Asamblea Legislativa, vigente al momento del trámite legislativo de la que hoy es la Ley número 9544, se hacen las siguientes alegaciones de inconstitucionalidad, por cuanto los diputados desatendieron sus mandatos: 1) violación del artículo 121 inciso 22) de la Constitución Política y artículos 35, 153, 205, 208 y 208 bis del Reglamento de la Asamblea Legislativa porque se aprobó el procedimiento del artículo 208 bis en la segunda parte de la sesión. Recuerdan que el artículo 121 inciso 22) constitucional tutela la competencia de la Asamblea Legislativa de regular su propio régimen interno y, en desarrollo de esta potestad auto normativa el propio Reglamento de la Asamblea Legislativa en su "TITULO VI" relativo a "Reformas al Reglamento", en su artículo 207, dispone:

"ARTICULO 207. Reformas al Reglamento.

Toda reforma total o parcial a este Reglamento, así como la interpretación de cualquiera de sus disposiciones requiere, para ser aprobada, los dos tercios de votos de la totalidad de los miembros de la Asamblea.

Las reformas deberán realizarse mediante el procedimiento establecido en el artículo 124 de la Constitución Política." Recuerdan que la violación o incumplimiento del reglamento legislativo, causa la nulidad -por inconstitucionalidad- de la ley, al tratarse de un parámetro de constitucionalidad en los términos en que está establecido en el artículo 73 de la Ley de la Jurisdicción Constitucional, que dispone en su literalidad:

“Artículo 73. Cabrá la acción de inconstitucionalidad:

(...)

• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa" (los resaltados son del memorial).

Argumentan que, en el caso concreto, la inconstitucionalidad acusada ocurrió porque -de manera directa- se vulneró el artículo 207 del Reglamento Legislativo, siendo que este vicio hace nula la Ley N° 9544, esto por cuanto en la sesión plenaria ordinaria N° 37 del 30 de junio de 2016, se conoció una moción de orden -vía artículo 208 bis-, con la intención de crear un procedimiento especial para la tramitación del expediente 19.922 que se titulaba: "Ley para racionalizar el gasto público"; tal moción de orden fue conocida en la denominada "Segunda Parte de la Sesión” del Plenario. Añaden que, además, no es posible aprobar un procedimiento especial por medio de una moción de orden. Consideran que para la comprensión de lo anterior, se debe recordar que el artículo 207 dispone:

''Trámite de acuerdos parlamentarios Los proyectos, para la emisión de acuerdos concernientes al régimen interior de la Asamblea, asi como los proyectos de acuerdo que deban tomarse, en uso de las atribuciones enumeradas en los incisos 2), 3), 5), 6), 7), 8), 9), 10) 12), 16), 21), 22^ 23) y 24) del artículo 121 de la Constitución Política, deberán presentarse por escrito, firmados por el diputado o los diputados que los inicien o acojan; o por el Ministro del ramo, cuando el proyecto sea de iniciativa del Poder Ejecutivo. Asimismo, deberán ser leídos por la Secretaría. La Asamblea los conocerá y resolverá, sin ajustarse a los trámites previstos en el artículo anterior (....)" (los resaltados son del memorial).

Informan que la anterior disposición normativa fue interpretada por la Presidencia de la Asamblea Legislativa mediante acuerdo número 4084, adoptado en la sesión número 24 del 10 de junio de 1999 y publicado en La Gaceta N° 129 del 5 de julio de 1999; ocasión en la que estableció un procedimiento riguroso para la reforma o modificación del Reglamento de la Asamblea Legislativa, no sólo en resguardo de los principios democráticos, sino que la publicidad, la transparencia, de las mayorías y minorías parlamentarias, al tener posibilidad de presentar mociones que podrán ser escuchadas, luego de lo cual votadas y hasta recurridas por todos los diputados integrantes de la Asamblea Legislativa, sin discriminación ni limitación alguna (resaltado del memorial). Añaden que, en ese sentido, si bien el artículo 208 establece el principio de la “inderogabilidad singular” en tanto dispone que: "Salvo en los casos en que el propio Reglamento lo establezca expresamente, no serán admisibles las mociones tendientes a su inaplicación a casos concretos"; en el "artículo 208 bis “Procedimientos Especiales", se regula la excepción al principio anterior, en los siguientes términos:

"Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda" (Así adicionado mediante acuerdo No. 6231-04-05 de 8 de marzo de 2005) (el resaltado es del memorial).

Señalan que las reformas al Reglamento Legislativo se llevan a cabo mediante "acuerdos", de manera que el procedimiento especial del artículo 208 bis no puede aprobarse por mociones de orden porque es una reforma al Reglamento de la Asamblea Legislativa. En ese sentido, recuerdan que ese cuerpo normativo, en su artículo 153, permite las mociones de orden, “salvo que este Reglamento lo impida expresamente"; y es que, conforme lo dispone el artículo 35 de ese reglamento, se establece un orden riguroso en el "orden del día" del Plenario Legislativo en el que reserva para la primera parte de la sesión, entre otros asuntos, el régimen interno de la Asamblea Legislativa o, lo que es lo mismo, la interna corporis de la Asamblea, cabalmente en resguardo de la regla constitucional de la publicidad y tutela de los derechos de los propios legisladores, como lo son el derecho al voto, a la discusión, a la enmienda y participación democrática en forma amplia, pública y transparente, y se reservó la segunda parte -en exclusiva- para la discusión de los primeros y segundos debates de los proyectos de ley en trámite. Manifiestan que, en este sentido, debe tenerse en cuenta que, en atribución de sus potestades de dirección otorgadas bajo el amparo del artículo 27 del mismo reglamento, en el Acta de la Sesión Plenaria N° 047 del 29 de julio del 2004, el Presidente de la Asamblea Legislativa, dictó una resolución -cuyo criterio no fue apelado y por lo tanto se encuentra vigente-, según la cual, la Presidencia instruyó a la Secretaria del Directorio para que en el capítulo de régimen interno y de seguido a las reformas al Reglamento, puedan ubicarse las mociones por tipo, por especie de mociones: en el punto a) reformas al Reglamento y en el punto b) mociones de orden, siendo que, dentro de las mociones de orden aparecerían las mociones de posposición que ahí se indican que no hay, luego las mociones de orden conforme el Artículo 153, después las prórrogas de comisiones especiales y, por último, las mociones de dispensa de trámites, esto para que cada uno de los señores diputados y señoras diputadas sepan dónde se van a ir ubicando las distintas mociones de orden en el capítulo de régimen interno, indicándose que a partir de ese momento, la Secretaria del Directorio tendrá instrucciones claras para que el orden del día sea estructurado de la forma que aparecía en ese momento en el orden del día. Manifiestan que, en el caso bajo estudio, para poder visualizar correctamente lo ocurrido, se puede consultar el orden del día del Plenario Legislativo para esa Sesión Ordinaria N° 37 del día 30 de junio de 2016, para conocimiento de los propios diputados de la forma en que estaba distribuida la agenda parlamentaria, constatándose de forma sorpresiva, que se presentó la moción de orden, que ni siquiera fue tramitada -por el principio de paralelismo de las formas- dentro del régimen interno, ya que para el expediente 19.922, se estaba derogando tácitamente el Reglamento Legislativo, con una grave afectación a los sectores interesados al legislarse a espaldas del pueblo costarricense, transgrediendo los más sagrados principios democráticos que lo han caracterizado. Argumentan que el conocimiento y tramitación de la moción vía 208 bis del Reglamento de la Asamblea en relación al expediente N° 19.922, debió ser conocida en la "Primera Parte de la Sesión", ello en resguardo de la regla constitucional de la publicidad y tutela de los derechos de los legisladores -como lo es el derecho de voto, discusión y participación democrática de forma amplia, pública y transparente-. Por el contrario, señalan que haberlo hecho en la "Segunda Parte de la Sesión", transgrede el artículo 121 inciso 22) constitucional, toda vez que, de manera directa, se vulneró el artículo 207 del Reglamento Legislativo. Aducen que la Presidencia de la Asamblea Legislativa, en concurso con los Jefes de Fracción proponentes de las mociones de orden, no se ajustaron al Reglamento Legislativo -con tal de aprobar las mociones 208 bis tramitadas en esa ocasión-, ni a lo dispuesto por la Ley de la Jurisdicción Constitucional que en su artículo 73 inciso c) condiciona la legitimidad constitucional de las leyes y acuerdos legislativos al cumplimiento sustancial de lo previsto "... en el Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa". Resaltan que, en este caso, lo violado fue el "procedimiento legislativo" en razón del principio del paralelismo de las formas, toda vez que, vía moción 208 bis al proyecto 19.922, se trasgredió de manera flagrante el trámite y normativa interna establecida por los propios legisladores, cabalmente en resguardo de los principios democráticos, respeto de las minorías, publicidad, transparencia, en relación al trámite del acuerdo legislativo que implica la aprobación de dicho procedimiento especial. Manifiestan que, a partir de lo anterior, se acusa el vicio de procedimiento que genera la nulidad absoluta de todo lo actuado por infringir los principios democráticos de transparencia, participación, paralelismo de las formas, seguridad jurídica, confianza legítima, que deben ser respetados sin violación alguna por parte de la Asamblea Legislativa, siendo que, en este caso concreto, lo actuado por los legisladores no cumplió lo dispuesto en los artículos 35, 205 y 207 del Reglamento Legislativo, ni en la interpretación vigente de la Presidencia, vulnerándose así los principios democráticos, de transparencia, participación y respeto a las mayorías legislativas y minorías legislativas (artículo 121 inciso 22 de la Constitución Política). Añaden que, por estas razones, solicitan que se declare la inconstitucionalidad de la Ley número 9544 por haber sido aprobada mediante un procedimiento legislativo viciado, en contravención directa y constante del Reglamento de la Asamblea Legislativa, conforme lo señalado, estimando que esa aprobación nula del procedimiento previsto por el artículo 208 bis, permitió que naciera a la vida jurídica la ley que creó un régimen jubilatorio desigual, desproporcionado, confiscatorio y que hace nugatorio el derecho a la jubilación que, en su criterio, ni siquiera es conforme con el mínimo establecido en el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. 2) Inconstitucionalidad por omisión de la votación calificada necesaria para la aplicación del procedimiento del artículo 208 bis del Reglamento de la Asamblea Legislativa. Recuerdan que este reglamento prevé diversos trámites legislativos como sería delegar la potestad legislativa en Comisiones Legislativas Plenas, el procedimiento abreviado, la vía del artículo 41 bis del Reglamento y, finalmente, los procedimientos especiales, con fundamento en el artículo 208 bis del reglamento. Argumentan que, en relación a este último supuesto, se trata de una regulación concreta para cada caso, excepcional a los otros supuestos, cuya definición requiere del consenso de los integrantes ya que, para su instauración, se requiere de mayoría calificada, condiciona que el diseño que se apruebe debe respetar los principios democráticos -de participación y publicidad-, resguardar los derechos de los diputados, y finalmente, no resulta posible su aplicación para los proyectos y asuntos que deban aprobarse mediante mayoría calificada -esto es mínimo 38 votos-. Advierten que este es el espíritu del legislador cuando aprobó el numeral 208 bis del Reglamento de la Asamblea Legislativa; nótese que la Comisión Especial que conoció las mociones de fondo presentadas al proyecto "Adición de un artículo 208 bis al Reglamento de la Asamblea Legislativa, expediente legislativo N° 15.751", rindió dictamen unánime afirmativo, exponiendo los motivos considerados para avalar ante el Plenario la propuesta que aclaró de manera contundente el tema de la mayoría de votación, como elemento determinante de la aplicación del procedimiento legislativo especial -vía moción 208 bis- al disponer clara y diáfana, lo siguiente:

"Por tales motivos se considera oportuno incorporar un nuevo artículo 208 bis al Reglamento de la Asamblea Legislativa, con el cual se busca que en aquellos casos en donde confluya la voluntad de la mayoría de los legisladores, sea esta decisión mayoritaria la que marque los parámetros que en cada caso se deban seguir, eso sí exceptuando de forma expresa de este procedimiento los proyectos de ley que para su aprobación requieran 38 votos, así como aquellos que tengan que ver con la aprobación de contratos administrativos, la venta de activos del Estado o apertura de sus monopolios, y los tratados y convenios internacionales" (El resaltado es del memorial).

Agregan que, sobre la base de las anteriores discusiones, la Asamblea Legislativa aprobó el acuerdo N° 6231-04-05 el día 8 de marzo de 2005, cuyo texto final y actualmente vigente, dispuso:

"ARTÍCULO ÚNICO: - Agréguese un artículo 208 bis, al Reglamento de la Asamblea Legislativa, que dirá lo siguiente:

Artículo 208 bis. - Procedimientos Especiales Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda" (los resaltados son del memorial).

Argumentan que la inconstitucionalidad que se acusa en relación a la Ley número 9544 se da porque se aplicó el artículo 208 bis del Reglamento de la Asamblea, previsto únicamente para asuntos cuya votación requerida es la mayoría simple (mitad más uno de los legisladores presentes), sin advertir que, en este asunto, se requería de una votación adoptada por mayoría calificada (mínimo 38 votos a favor del total de los legisladores electos), por haber manifestado Corte Plena criterio negativo a los textos sustitutivos adoptados por la Comisión Especial. Recuerdan que, al tenor del mandato del numeral 167 de la Constitución Política, para separarse del criterio de Corte, los legisladores debían de votar este asunto con mayoría calificada de 38 votos. Señalan que, mediante oficio SP-118-17 del 26 de abril del 2017, se puso en conocimiento de la Comisión Especial designada para el análisis y trámite del expediente legislativo número 19.922, el acuerdo adoptado por Corte Plena en el Artículo XXIX de la sesión ordinaria número 8-17 del 24 de abril del 2017, en el que se manifestaba su criterio negativo, en ese momento, respecto del segundo texto sustitutivo adoptado por la indicada Comisión en la sesión ordinaria número 15 del 29 de marzo de 2017. Por su parte, aducen que mediante oficio SP-253-17 del 10 de agosto del 2017, Corte Plena comunicó al Directorio Legislativo, el criterio negativo adoptado en el Artículo XXX de la sesión ordinaria número 26-17, celebrada el 7 de agosto de 2017, en esta ocasión respecto del tercer texto sustitutivo aprobado y dictaminado por la Comisión Especial en la sesión número 23 del 27 de julio del 2017. Indican que, en ambos criterios de la Corte Suprema de Justicia, expresamente se consideró que los textos sustitutivos propuestos sí incidían de manera directa en la organización y funcionamiento de este Poder de la República, motivo por el cual se manifestaban en contra de esos proyectos. Aunado a lo anterior, argumentan que, en el artículo 239 de la Ley número 9544 aquí impugnada, se modificó la estructura interna del Poder Judicial en tanto se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa para ejercer las facultades y atribuciones que le otorga la ley. Señalan que, conforme al contenido de ese artículo, la Junta Administrativa se inserta en el Poder Judicial, como órgano "dependiente" de Corte Plena, pero además la ley le dota de personalidad jurídica suficiente para la administración del fondo, lo cual le faculta para actuar en representación del Poder Judicial en lo que refiere a las acciones del Fondo de Jubilaciones y Pensiones de este Poder. Indican que esta tarea, antes de la reforma, la tenía el Consejo Superior en los términos del artículo 81 inciso 12) de la Ley Orgánica del Poder Judicial, sólo que sin dotación de esta personería jurídica instrumental. Consideran que la anterior modificación sí incide en la competencia y organización del Poder Judicial porque crea una dependencia interna, y porque a esta Junta Administrativa le otorgaron autonomía jurídica instrumental frente a la Corte, que le excluye de las acciones propias de acción del superior jerarca, en este caso, de Corte, en los términos de lo dispuesto en los numerales 102 y 83 de la Ley General de la Administración Pública, a tal punto que se dota de representación judicial y extrajudicial para actuar en nombre de este Poder Judicial; fenómeno jurídico que no se había dado hasta este momento. Señalan que, además del yerro en la aplicación de un trámite legislativo especial al tenor del 208 bis del Reglamento de la Asamblea en un asunto que excede de la competencia de ese numeral toda vez que se requería de una votación calificada y no simple, se revisó la votación dada en el Plenario Legislativo a este asunto y se comprobó que el proyecto 19.922 se votó con una mayoría simple, en ambas votaciones: en el primer debate que se dio en la sesión extraordinaria número 14 del 30 de octubre del 2017, el Plenario aprobó el dictamen afirmativo rendido por la Comisión Especial con 31 votos a favor y 7 en contra; y en el segundo debate que se hizo en la sesión ordinaria número 163 del 19 de abril del 2018, se aprobó con 34 votos a favor y 9 en contra, todo lo anterior a pesar de que lo requerido era una votación de 38 votos a favor para ser constitucionalmente válida la votación. Manifiestan que el artículo 167 constitucional, previó la consulta previa y de alguna manera vinculante, a la Corte Suprema de Justicia, en relación a la "discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial”; criterio que sólo puede ser desatendido por los legisladores mediante votación calificada, esto es, de los dos tercios del total de los legisladores, a saber, con un mínimo de 38 votos. Argumentan que, en este sentido, para ellos no existe la menor duda de que la Sala Constitucional ha entendido que es necesaria la consulta al Poder Judicial en los términos del artículo 167 de la Constitución Política cuando se reforme su organización administrativa y no sólo lo concerniente a la función jurisdiccional. Consideran que es pertinente tener como referencia las consideraciones externadas por la Sala Constitucional, al entender:

"... que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explicitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas..." (Sentencia número 2008-5179 de las 11:00 horas del 04 de abril del 2008) (los resaltados son del memorial).

Advierten que no se cumplió el requisito constitucional establecido en el artículo 167 constitucional de la votación calificada para poder separarse del criterio negativo externado por Corte en su último dictamen, estimando que con ello se vulneró ese numeral así como la regla prevista en el 208 bis del Reglamento por cuanto, según dicen, se requería mayoría calificada para desatender el criterio de Corte, lo que en su criterio es un vicio insalvable y causa la nulidad de la ley por inconstitucional. Aunado a lo anterior, señalan que el Plenario Legislativo aprobó un texto inconsulto ya que el texto final, base de la discusión en el plenario, fue el tercer texto sustitutivo, aprobado y dictaminado por la Comisión especial en la sesión ordinaria número 23 del 27 de julio del 2017, respecto del cual no se hizo la consulta previa obligada a la Corte Suprema de Justicia posterior al dictamen afirmativo de mayoría, por lo que estiman que la Ley 9544 resulta inconstitucional en cuanto a este extremo también. 3) Inconstitucionalidad por omisión al no publicar el texto finalmente aprobado. Sobre este punto argumentan los accionantes que, ni la Comisión Especial encargada del trámite y análisis del proyecto de ley en expediente número 19.922, ni el Plenario Legislativo, publicaron los textos sustitutivos en la forma en que lo previó el procedimiento especial determinado para este asunto; en consecuencia, consideran que se configura la inconstitucionalidad de la ley aprobada (9544) por vicio en el trámite legislativo en los términos establecidos en el artículo 73 inciso c) de la Ley de la Jurisdicción Constitucional en relación con el artículo 121 inciso 22) de la Constitución Política. Señalan que en la sesión número 037 del 30 de junio del 2016, en el Plenario Legislativo se conoció y aprobó la Moción de Orden según la cual, en aplicación del numeral 208 bis del Reglamento de la Asamblea Legislativa, con votación a favor de 49 votos y 1 en contra, se aprobó un procedimiento especial o vía rápida para el trámite, discusión y dictamen del proyecto de ley tramitado en el expediente 19.922 denominado "Ley para Racionalizar el Gasto Público"; asimismo, se dispuso la creación de una Comisión Especial a la que se le delegó tal tarea. Resaltan que, en el numeral 2 inciso h) del indicado acuerdo, expresamente se estableció la obligación -para la indicada Comisión- de publicar cualquier texto sustitutivo que aprobase en el trámite de la discusión, en los siguientes términos:

"h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto" (los resaltados son del memorial).

Añaden que el 5 de septiembre de 2016, se integró la Comisión Especial del "expediente legislativo 20.035, Encargada de conocer y dictaminar el proyecto: "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normas Conexas, Expediente No. 19.922”. Argumentan que en la primera sesión de esta Comisión Especial, la número 1 del 13 de septiembre del 2016, mediante votación unánime, se sustituyó el texto base de discusión -ahora tendente únicamente a la modificación integral del Título IX de la Ley Orgánica del Poder Judicial, número 8 del 29 de noviembre de 1937 y sus reformas-; texto que nunca se publicó en La Gaceta, ello a pesar de haberse variado sustancialmente el texto, lo cual es un hecho de simple constatación entre el documento original base según definición del Plenario y el sustituido por la Comisión Especial. Reiteran que este texto no fue publicado, como lo ordenaba la moción 208 bis que estableció su trámite; primera omisión de publicación en relación al primer texto sustitutivo aprobado en la Comisión Especial. Agregan que, posteriormente, en la sesión ordinaria número 15 del miércoles 29 de marzo de 2017, esa Comisión Especial aprobó el segundo texto sustitutivo; ocasión en la que se trató de una propuesta preparada por la SUPEN, siendo que -este segundo texto sustitutivo- tampoco se publicó en los términos exigidos en el inciso h) del artículo 2 de la moción de orden del 208 bis del Reglamento de la Asamblea Legislativa, que dispuso las reglas de su trámite. En este sentido, consideran que las palabras de la ex diputada Piszk Feinzilber en relación a este punto, son ilustrativas:

"Primero que nada, don Jorge yo no lo estaba distrayendo, levanté la mano y no creo que eso sea suficiente razón.,. claro que sí.

En segundo lugar, al haber un texto sustitutivo y esto tiene que quedar muy claro, hay que consultar nuevamente a los involucrados. Yo no veo cuál es el problema. Esto no sé si habrá que publicarlo o no publicarlo, pero evidentemente como aquí todos estamos trabajando de buena fe, habrá que publicarlo y habrá que llamar nuevamente a los sectores interesados para que se pronuncien.

Aquí nadie está trabajando por debajo de la mesa ni mucho menos. Gracias" (Los resaltados son del memorial).

Sostienen que, de las propias palabras de la Diputada Piszk Feinzilber se concluye la falta de publicación del primer texto y, en consecuencia, no fue aplicado lo dispuesto en la moción 208 bis de manera expresa, con lo cual consideran que se transgredió el artículo 121 inciso 22) constitucional, así como también los principios constitucionales de publicidad y debido proceso que debieron seguirse de manera expresa. Añaden que, a pesar de las advertencias de la legisladora, tampoco se publicó este segundo texto sustitutivo (segunda omisión de publicación en relación al segundo texto sustitutivo aprobado en la Comisión Especial). Reiteran que no consta en el expediente legislativo, a pesar de haberse ordenado, expresamente en el segundo caso, que se haya cumplido con tal publicación; no hay evidencia en ese sentido. Añaden que, finalmente, en la sesión ordinaria número 23 celebrada el 27 de julio del 2017, la Comisión Especial aprobó moción de orden número 1-23 para dispensar de lectura el texto sustitutivo presentado; de seguido también aprobó la moción de orden número 2-23 que consistió en la aprobación del texto sustitutivo y, de inmediato, se dictaminó de manera afirmativa con 8 votos y 1 en contra. Advierten que, nuevamente, se omitió la publicación de este tercer texto sustitutivo aprobado -y en este caso también dictaminado- por la Comisión, debiendo tomarse en cuenta que lo que se publicó fueron los dictámenes de la Comisión Dictaminadora, no el texto sustitutivo, con lo cual, nuevamente se violentó lo dispuesto por la Constitución Política y el Reglamento Legislativo en cuanto al trámite que debía seguir el expediente 19.922. Llaman la atención en cuanto a que lo publicado en el Alcance N° 189 del día 4 de agosto de 2017, fue el Dictamen Afirmativo de Mayoría, aprobado el 27 de julio de 2017, y el de Minoría se publicó en el Alcance Nº 190 del día 7 de agosto de 2017. Hacen notar nuevamente que ninguno de los textos sustitutivos que aprobó la Comisión Especial fue publicado conforme lo disponía de manera expresa el procedimiento especial creado vía moción 208 bis; ni siquiera el tercero que fue dictaminado sin las consultas que la Constitución ordena en los artículos 167 y 190, lo cual estiman que se constituye en una transgresión al principio de publicidad que rige los trámites legislativos y que es necesario para advertir a la totalidad de la población sobre la propuesta en discusión que, en tal medida, es expresión del principio de seguridad jurídica. Consideran que no se pudo subsanar el vicio por el hecho de publicar el texto sustitutivo después de ser aprobado en primer debate, porque el requisito de publicación debe permitir a todos los costarricenses conocer el proyecto de ley para manifestarse y opinar, como es su derecho constitucional protegido por el artículo 124 de la Constitución y el artículo 208 bis del Reglamento de la Asamblea Legislativa, en relación con el artículo 73 c) de la Ley de la Jurisdicción Constitucional. Argumentan que, en relación a este extremo, en la sentencia número 2012-004621 de las 16 horas del 10 de abril de 2012, la Sala Constitucional indicó:

"VII- Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del artículo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398- 2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.

VIIL- VICIO ESENCIAL DEL PROCEDIMIENTO DE CARÁCTER EVIDENTE Y MANIFIESTO AL OMITIRSE LA PUBLICACIÓN DE UN NÚMERO SIGNIFICATIVO DE MOCIONES DE FONDO APROBADAS EN LA COMISIÓN ESPECIAL QUE, EN CONJUNTO, MODIFICARON SUSTANCIALMENTE EL PROYECTO ORIGINAL. De otra parte, los diputados consultantes manifiestan que, pese a lo estipulado en el apartado l.2.h., del procedimiento legislativo especial, durante su trámite se omitió publicar una serie de cambios realizados al proyecto que mermaron la expectativa total del salario escolar que se encuentra exento del pago del impuesto de la renta comprende tanto a los trabajadores públicos como a los privados.

Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original" (los resaltados son del memorial).

En consecuencia, y aplicando lo anterior al caso concreto, consideran los accionantes que se violaron los numerales 121 inciso 22) y 124 de la Constitución Política y el artículo 208 bis de la Asamblea Legislativa, lo que hace que la Ley número 9544 sea absolutamente nula en su totalidad. Adicional a los planteamientos de inconstitucionalidad por la forma, los accionantes plantean otros argumentos por los cuales consideran que la Ley 9544 es inconstitucional por el fondo. Hacen referencia a violaciones a los principios de razonabilidad, proporcionalidad y de igualdad. Aducen que las deducciones aprobadas por esta ley son totalmente gravosas, irrazonables y confiscatorias, además de lesivas al principio de igualdad para quienes se desempeñan en el Poder Judicial. En primer lugar se refieren a los principios de razonabilidad y proporcionalidad. A) Análisis sobre las modificaciones a los elementos sustanciales del régimen: añaden que con la reforma introducida al Régimen de Jubilaciones y Pensiones del Poder Judicial mediante Ley 9544, se produjo una desproporción y, en consecuencia, un trato desigual e irracional contra los servidores activos, pensionados y jubilados que cotizan a dicho régimen, en comparación con las personas que cotizan para el Régimen de Invalidez, Vejez y Muerte. Indica que a esa conclusión se llega luego de hacer un análisis comparativo del perfil de beneficios para ambos regímenes del que, sin lugar a dudas, ahora el Régimen de Jubilaciones y Pensiones del Poder Judicial resulta ser desproporcionado e irrazonable por sus efectos en relación con las altísimas cargas que se impone a sus cotizantes y “beneficiarios” -muy por encima de las personas que cotizan al IVM- y a quienes se les exige la pertenencia y permanencia a un régimen durante toda la vida laboral con el Poder Judicial. Señalan que, en el caso de los empleados judiciales, con estas reformas que se han hecho, al momento en que se jubilan o se pensionan, los beneficios a obtener son muy inferiores y esto es así porque un 62% del colectivo laboral del Poder Judicial percibirá un ingreso incluso menor que si hubiese cotizado al IVM y el resto de empleados, aún y cuando en el Régimen del Poder Judicial nominalmente puedan percibir una pensión o jubilación mayor, porcentualmente es inferior y esto se repite por las altísimas y gravosas cargas que se imponen en este régimen en comparación con el IVM. Añade que con la reforma introducida mediante la Ley 9544 se aumentó la edad de retiro hasta los 65 años de edad, con un mínimo de 35 años de servicio y con un monto bruto de jubilación equivalente al 82% de los últimos 240 salarios recibidos, siendo que, con tales modificaciones, en principio, se “pretendía” equiparar los requisitos del Régimen de Jubilaciones y Pensiones del Poder Judicial con el Régimen de Invalidez, Vejez y Muerte; sin embargo, en el primero los montos de cotización son 4 veces superiores al segundo y los beneficios son mucho menores. En tal sentido, recuerdan que el artículo 224 de la Ley 9544 establece que:

"Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años" (los resaltados son del memorial).

Por su parte, mencionan el artículo 5 del Reglamento del Seguro de Invalidez, Vejez y Muerte de la CCSS, según el cual:

"Tiene derecho a pensión por vejez el asegurado que alcance los 65 años de edad, siempre que haya contribuido a este Seguro con al menos 300 (trescientas) cuotas" (los resaltados son del memorial).

A partir de lo anterior, aducen que, con meridiana claridad, se puede observar una primera diferencia entre ambos regímenes, ya que, al comparar los requisitos de elegibilidad y cantidad de cotizaciones, se tiene que a los trabajadores del Poder Judicial se les solicitan dos para poder acceder a una jubilación ordinaria: a) cumplir 65 años de edad (mismo requisito que en IVM) pero, b) con un total de 420 cotizaciones (35 años). Argumentan que, a diferencia de las personas que cotizan para el IVM donde se requiere únicamente de 300 cotizaciones, a los empleados del Poder Judicial se les solicita cotizar un 40% más para poder acceder a una jubilación en su modalidad ordinaria. Manifiestan que el planteamiento de este vicio de inconstitucionalidad se basa primordialmente en el informe técnico actuarial elaborado por el señor Esteban Bermúdez, quien funge como actuario del Fondo de Jubilaciones y Pensiones del Magisterio y que, a petición de la Asociación Costarricense de la Judicatura (ACOJUD), elaboró un informe técnico, el que ha sido aportado a la Sala. Añaden que, con la reforma introducida al Régimen de Jubilaciones y Pensiones del Poder Judicial mediante la Ley N° 9544 aquí impugnada, se produce una desproporción y, en consecuencia, un trato desigual e irracional para las personas que cotizan a dicho Régimen, en comparación con las personas que lo hacen para el Régimen de Invalidez, Vejez y Muerte. Argumentan que, de seguido, se hará un análisis comparativo del perfil de beneficios para ambos regímenes del que se puede concluir que, para la gran mayoría de las personas que cotizan al Régimen del Poder Judicial, resulta desproporcional e irracional el hecho de tener que pertenecer a un régimen en el que durante toda su vida laboral realizan aportes muy superiores a las personas que cotizan al IVM y; sin embargo, al finalizar su vida laboral, reciben beneficios muy inferiores, lo cual es así por cuanto, con la reforma introducida mediante la Ley 9544, se aumentó la edad de retiro hasta los 65 años de edad, con un mínimo de 35 años de servicio y con un monto bruto de jubilación, equivalente al 82% de los últimos 240 salarios recibidos. Indican que lo anterior equipara requisitos para obtener el derecho a la jubilación en ambos regímenes; sin embargo, tiene el agravante en cuanto a que, los montos de cotización para el Fondo de Jubilaciones y Pensiones del Poder Judicial, son cuatro veces superiores al IVM y los beneficios son mucho menores. Agregan que al comparar los requisitos de elegibilidad y cantidad de cotizaciones, se tiene que a los trabajadores del Poder Judicial se les solicita dos requisitos para poder acceder a una jubilación ordinaria y son 65 años de edad igual que en IVM, pero con un total de 420 cotizaciones (35 años), lo cual es una importante diferencia en relación con las personas que cotizan para el IVM donde se requiere únicamente de 300 cotizaciones; es decir, a los empleados del Poder Judicial se les solicita cotizar un 40% más que a los empleados del IVM, para poder acceder a una jubilación en su modalidad ordinaria. Añaden a lo anterior que, para calcular la asignación mensual en el Régimen de Jubilaciones y Pensiones del Poder Judicial, se toma en cuenta el salario promedio de los últimos 20 años (mismo requisito que en IVM) y, a ese promedio se le aplica un 82%, siendo el resultado el monto de la jubilación bruta, tal y como lo que establece el propio artículo 224 de la Ley 9544. Indican que, por su parte, en el IVM, se calcula la asignación mensual de acuerdo con lo que establece el artículo 5 del Reglamento del Seguro de Invalidez, Vejez y Muerte en concordancia con los artículos 24 y 25 de ese mismo reglamento:

"Artículo 24: El monto de la pensión por invalidez, vejez o muerte de un trabajador activo comprende una cuantía básica como porcentaje del salario o ingreso promedio indicado en el artículo anterior, por los primeros 20 (veinte) años cotizados (240 -doscientas cuarenta-cuotas aportadas) o los que se tuvieren en caso de invalidez o muerte, siempre y cuando se cumpla con los requisitos de los artículos 6o y 18° de este Reglamento.

Para ubicar al asegurado en el nivel que se indica en la tabla siguiente, se tomará el salario o ingreso promedio de los últimos sesenta meses cotizados o los disponibles en los casos de invalidez y muerte, actualizados por inflación:

Salario o ingreso promedio real Cuantía Básica Menos de dos salarios mínimos 52,5% De dos a menos de tres salarios mínimos 51,0% De tres a menos de cuatro salarios mínimos 49,4% De cuatro a menos de cinco salarios mínimos 47,8% De cinco a menos de seis salarios mínimos 46,2% De seis a menos de ocho salarios mínimos 44,6% De ocho y más salarios mínimos 43,0% Tanto en el caso de vejez como de invalidez se incluye una cuantía adicional equivalente al 0,0833% sobre el salario o ingreso promedio de referencia por cada mes cotizado en exceso de los primeros 240 meses” (los destacados son del memorial).

Ahora bien, agregan que, a diferencia del sistema elegido en la Ley número 9544, el régimen de IVM establece un beneficio por postergación de la pensión o jubilación en los términos del numeral 25 del Reglamento, que representa un porcentaje adicional en el monto de la pensión, lo cual hace en los siguientes términos:

"Artículo 25. El asegurado que cumpla los requisitos para tener derecho al disfrute de pensión por vejez, tendrá derecho a una pensión adicional por postergación del retiro, a partir de la fecha en que haya cumplido los requisitos legales y reglamentarios. Esta pensión adicional consistirá en el 0,1333% por mes sobre el salario promedio calculado según el articulo 23°.

El monto de la pensión adicional por postergación del retiro sumado al monto de la pensión ordinaria calculada según el artículo 24° de este Reglamento, no podrá exceder del 125% del salario o ingreso promedio indicado." Señalan que al comparar ambas maneras de cálculo para la asignación del monto mensual en cada uno de los regímenes analizados, se concluye que en el régimen del Poder Judicial se toma en cuenta el promedio de las últimas 240 cotizaciones y de ahí se aplica un 82% para determinar la asignación bruta de la jubilación; mientras tanto, para el IVM, se toma en consideración una cuantía básica que oscila entre el 43% y el 52,5% y, a este porcentaje, se le agrega un 0,0833% por cada mes cotizado a partir de la cotización mensual número 240, esto último como una bonificación por antigüedad al haberse cotizado más allá de las 240 cuotas exigidas como mínimo, además de un monto adicional por postergación, en caso de ser mujer si hubiera alcanzado la edad de retiro a los 63 años y 2 meses, y en caso de ser hombre a los 63 años y 3 meses. Argumentan que, de esta manera, si en el Poder Judicial una persona cumple el requisito de edad (65 años) y el requisito de años de servicio (35 años), tendrá derecho a una jubilación ordinaria obtenida de aplicar un 82% al promedio de los últimos 240 salarios; por su parte, en las mismas condiciones, si una persona que cotizó para el IVM cumple el requisito de edad (65 años) y ha cotizado durante 35 años, tendrá derecho a una jubilación ordinaria obtenida al aplicarle al promedio de los últimos 240 salarios, una cuantía básica que oscila entre el 43% y el 52,5%, más un 0,0833% por cada mes cotizado de más, después de las 240 cotizaciones, es decir, tendrá derecho a un 14,994%, como una bonificación por antigüedad al haber aportado 180 cuotas de más, además de un 2,9326% en caso de ser mujer y un 2,7993% en caso de ser hombre producto del reconocimiento por postergación. Señalan que, en primera instancia, pareciera que el monto del 82% que establece la reforma al Poder Judicial, es superior a los montos dados por el IVM; sin embargo, todos los pensionados del Poder Judicial poseen tres gastos que no poseen los pensionados del IVM y son los que hacen que la reforma aplicada se convierta en desproporcional en comparación con el IVM; gastos o deducciones adicionales que consisten en: a) la cotización a la Junta Administradora de Pensiones (cinco por mil de la pensión) de acuerdo con lo que regula el artículo 239 reformado, que indica: "...Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, asi como de las jubilaciones y las pensiones a cargo del Fondo...”; b) la cotización al fondo una vez jubilado del 13% y de lo que se encuentran exonerados los pensionados del IVM. Sobre el particular, el artículo 236 inciso 1) de la Ley 9455 indica: “El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos 1) Un aporte obrero de un 13% de los sueldos que devenguen los servidores judiciales, asi como de las jubilaciones y pensiones a cargo del fondo ..."; c) la cotización al Régimen de Salud administrado por la CCSS ( 5%), el cual no es aplicado a los pensionados del IVM ya que reglamento IVM en su artículo 3 establece que: "El costo del aseguramiento en el Seguro de Salud para los pensionados del Seguro de Invalidez, Vejez y Muerte será asumido en su totalidad por el Fondo de Pensiones de Invalidez, Vejez y Muerte, la Junta Directiva será quien determine el porcentaje por aplicar con base en las recomendaciones actuariales". Manifiestan que, a partir de lo anterior, se puede desprender que del 82% que se le asigna a un trabajador del Poder Judicial sin la penalización del artículo 224 bis, se le deberá reducir en un 0.41% (cinco por mil del 82%), más un 10.66% (13% de cotización) y un 4.1% (5% de la cotización al Seguro de Enfermedad y Maternidad), finalizando el monto neto en un 66.83% a los 65 años con 35 años de servicio, debiendo recordarse además que, para ambos regímenes según su monto de pensión, también aplicaría el impuesto de la renta. Indican que, por el otro lado, si un trabajador del IVM se pensiona con 35 años de servicio, su cuantía aumenta por dos razones: la primera es la bonificación de antigüedad (exceso de las 240 cotizaciones) que llegarían a un 14,994% (180 cotizaciones sobre las 240 multiplicadas por 0,0833%) y, la segunda otra razón es la bonificación por postergación, siendo que en caso de ser mujer hubiera alcanzado la edad de retiro a 63 años y 2 meses y de un hombre a los 63 y 3 meses. En otras palabras, argumentan que si el trabajador es una mujer postergó 22 meses y si es un hombre 21 meses, lo que les acredita según el artículo 25 del Reglamento del IVM un 0,1333%, y esto significa que su cuantía aumentaría un 2,9326% en caso de una mujer y un 2,7993% en caso de hombre, por lo que dependiendo de sus últimos salarios, su cuantía base variaría entre un 43% y un 52,5% más las bonificaciones por antigüedad y postergación; es decir, la cuantía en igualdad de condiciones de retiro para una mujer que se retire a los 65 años con 35 años de servicio en el IVM rondaría entre un 60,9266% y 70,4266% y en el caso de un hombre ésta variaría entre un 60,7933% y un 70,2933%. Manifiestan que las diferencias apuntadas se pueden verificar comparativamente en el siguiente cuadro que toma en consideración el Régimen de Pensiones y Jubilaciones del Poder Judicial, previo a la reforma alegada aquí de inconstitucional, así como también con la reforma y su comparación con el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social que es un régimen de contenido mínimo de la seguridad social para los trabajadores en los términos indicados por la Sala Constitucional en su sentencia número 846-92 de las 13 horas 30 minutos del 27 de marzo de 1992, permitiendo la existencia de otros regímenes en el país:

Con régimen anterior (derogado según reforma del año 1993) Con régimen Ley 9544 (nueva ley acá impugnada) Con Régimen CCSS Fondo se nutre de aportes:

Fondo se nutre de aportes:

Fondo se nutre de aportes:

- Servidor activo, pensionado y/o jubilado: del 9% al 15%, fijado últimamente en 11% - Patrono: según lo definiera Corte - Estado: 1,24% No hay aporte extra porque el fondo lo administraba el Consejo Superior - Servidor activo, pensionado y/o jubilado: 13% - Patrono 14.36% - Estado: 1.24% Aporte de 5 colones por cada 1000 de salario para financiar los gastos de la Junta de Administración creada para la administración del Fondo - Servidor activo únicamente: 3% - Patrono: 5.08% - Estado: 1.24% No hay aporte extra porque el fondo lo administra la CCSS Condiciones para la jubilación:

Presentaba 3 marcos diferentes:

Opción A:

- 30 años de servicio - pensión de hombres y mujeres a los 62 años - 100% cálculo sobre el salario de los últimos mejores 24 salarios, que con las cargas que se imponen a los pensionados y jubilados se convierte en un 84% (sin contar el pago del impuesto sobre la renta) Opción B:

- con 60 años de edad pero no de servicio: cálculo se hacía con los años de servicio dividido entre 30, porcentaje que se aplicaba a los últimos 24 mejores salarios y a este monto se le aplicaban las rebajas del 11% de cotización y 5% de seguro, lo que es igual a 66% y el pago del impuesto sobre la renta.

Opción C:

- con 30 años de servicio pero no cumple la edad (60 años): cálculo se hacía con la edad del servidor que se divide entre 60, porcentaje que se aplicaba a los últimos 24 mejores salarios; monto al que además se aplicaban las rebajas del 11% de cotización y 5% de seguro lo que es igual a 66% y el pago del impuesto sobre la renta Condiciones para la jubilación:

- 35 años de servicio en la institución - pensión de hombres y mujeres a los 65 años - 82% del promedio de los últimos 20 años de servicio (240 salarios) y que con las cargas que se imponen a los pensionados y jubilados se convierte en 66.83% (sin contar con el pago del impuesto sobre la renta) - Servidores judiciales cotizan un 40% más que el IVM de CCSS - No hay reconocimiento por antigüedad ni por postergación Condiciones para la jubilación:

- años de servicio - 65 años de edad - con 300 cuotas -82% del promedio de salario de 20 años de servicio (240 salarios sin carga social adicional), con una cuantía básica entre el 43% y el 52.5% - Hay reconocimiento por antigüedad (bonificaciones) y por postergación, a partir de la cotización 240, con un total de 420 cuotas (35 años), que se traduce en un 0.0833% por cada mes adicional cotizado - mujer: con 63 años 2 meses - hombres: con 63 años 2 meses Tope: regula mínimo a recibir - ninguna pensión puede ser inferior a la tercera parte del último sueldo del servidor, que señale el presupuesto de gastos del Estado, para el año en qu se hiciere el pago Tope: regula máximo a percibir:

Hasta 10 veces el salario más bajo del Poder Judicial Tope:

¢1.548.189,00 colones Obligaciones de los pensionados y jubilados:

- cotización al régimen: 11% (con posibilidad de llegar al 15%) - pago del seguro de enfermedad de la CCSS (5%) - pago de impuesto sobre la renta Obligaciones de los pensionados y jubilados:

- cotización al régimen: 13% - pago del seguro de enfermedad de la CCSS (5%) - pago del impuesto sobre la renta - aporte solidario a partir de la superación de tope: del 35% al 55% Pensionados y jubilados del régimen de la CCSS:

- no se contribuye al régimen - no se paga seguro por enfermedad - no se paga impuesto sobre la renta Pensión proporcional:

- mínimo 10 años de servicio para la institución, por un lapso de tiempo: la mitad del tiempo servido Pensión proporcional:

Opción A:

- si cumple 35 años de servicio, pero no tiene 65 años de edad, como mínimo se fija: hombres con 62 años y mujeres con 60 años - la pensión a recibir por las mujeres oscila entre el 61.68% y el 65.79% según la edad; monto al que hay que restarle las contribuciones al régimen, seguro, financiamiento de costos de administración y renta - la pensión a percibir por los hombres oscila entre el 63.74 % y el 65.79% según la edad; monto al que hay que restarle las contribuciones al régimen, seguro, financiamiento de costos de administración y renta Opción B:

- con 65 años de edad pero no los 35 de servicio a la institución, pero mínimo 20 años de servicio a la institución - no permite traslado de régimen del Poder Judicial al IVM de la CCSS - si permite traslado de régimen pero al momento en que se vaya a pensionar o jubilar y el monto en exceso se pasa al ROP Pensión proporcional:

No hace reconocimiento por antigüedad No hace reconocimiento por antigüedad Sí hace reconocimiento por antigüedad Señalan que la normativa que regula el nuevo Régimen de Jubilaciones y Pensiones del Poder Judicial y el anterior cuadro, evidencian lo siguiente: A) que con el sistema anterior los servidores judiciales no recibían el 100% del salario como se ha divulgado falsamente a la opinión pública. Indican que del cálculo de la operación resultante del promedio de los salarios base, al igual que a hora, se le hacían importantes rebajas en aplicación del principio de solidaridad: el 11% de la contribución al régimen, el 5% para el seguro de enfermedad, sin contar lo correspondiente al pago del impuesto sobre la renta. Aducen que este presupuesto se daba únicamente si el servidor cumplía los presupuestos de edad (62 años) y años de servicio para la institución (30 años), siendo que, a partir de ahí, disminuían considerablemente los porcentajes en los supuestos de sólo cumplir alguno de los presupuestos (edad o años de servicio). B) con la reforma de la Ley 9544, a simple vista pareciera que el monto del 82% que establece como base de cálculo de la pensión o jubilación de los servidores judiciales, es superior a los montos dados por el IVM; sin embargo, todos los pensionados del Poder Judicial poseen 3 gastos que no tienen los pensionados del IVM -además del cálculo de impuesto sobre la renta- y son los que hacen que la reforma aplicada se convierta en desproporcional en comparación con el IVM. Añaden que, así las cosas, se puede desprender que del 82% que se le asigna a un trabajador, sin la penalización del artículo 224 bis, el monto se reduciría en un 0.41% (cinco por mil del 82% por gastos de financiamiento para la Junta de Administración), un 10.66% (13% de cotización al régimen) y un 4.1% (5% de la cotización al Seguro de Enfermedad y Maternidad), finalizando el monto neto en un 66.83% a los 65 años con 35 años de servicio, recordando que para ambos regímenes también aplicaría el impuesto de la renta, según el monto de pensión. Argumentan que, con la ejecución del régimen del Poder Judicial en los presupuestos de 35 años de servicio y 65 años de edad, la persona percibiría un ingreso neto del 66.83%, para el cual se le impone una cotización del 40% más que en el IVM, ello a pesar de que el IVM es una garantía de contenido mínimo del derecho a la jubilación, en los términos y indicados por el Alto Tribunal Constitucional. Consideran que es más que evidente que este cálculo no pasa el tamiz de razonabilidad, ni de igualdad, si se comparan las cargas indicadas frente al régimen mínimo de la Caja Costarricense del Seguro Social al que, no obstante exigirse al servidor una contribución del 3%, éste recibe una pensión entre el 43% y el 52.5% del promedio de los últimos 240 salarios, con posibilidad de recibir bonificaciones por postergación, por cada mes que atrase la pensión y/o jubilación, sin que tengan ninguna contribución adicional que pagar. Estiman que, la comparación de ambos regímenes, demuestra a simple vista lo irrazonable y desproporcionado del régimen de pensiones y jubilaciones impuesto a los servidores judiciales pues según la Ley impugnada, los servidores judiciales cotizan el 40% más que los trabajadores afiliados al IVM de la Caja Costarricense del Seguro Social; sin embargo, con todas las contribuciones y rebajas que se le imponen a los empleados judiciales, terminarán percibiendo menos que los que pertenecen al IVM, y esto sin contar el aporte para el financiamiento de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial.

Cuantía Régimen Poder Judicial (RJPPJ) vrs Régimen de CCSS (RIVM) 65 años con 35 años de servicio Estimación de Pensión RJPPJ RIVM Cuantía Base 82 % 43 % a un 52,5% Menos: Contribución al Fondo 10.66 % No tiene Menos: Gasto administrativo 0,41 % No tiene Menos: Cotización a salud 4,1 % No tiene Más: Bonificación por antigüedad No tiene 14.994% Más Bonificación por postergación No tiene 2.9325% si es mujer 2,7993% si es hombre Total de la cuantía 66.83% 60.9266% a un 70.4266% a mujer 60.7933% a un 70.2933% a hombre Manifiestan que, en atención a lo anterior, hay casos en donde la pensión del IVM sería superior a la del Régimen de Jubilaciones y Pensiones del Poder Judicial ya que el primero otorgaría una cuantía mayor neta y sería justamente en el caso de aquellas personas con 5 o menos salarios mínimos en los últimos 5 años de servicio que, al momento de presentar esta acción y según información de la página de la CCSS, es de ¢251.801,00; es decir, con base en el artículo 24 del Reglamento del IVM, serían aquellas personas con un promedio salarial en los últimos 5 años inferior al ¢1.259.005,00. Reseñan que, al ser 20 años un horizonte tan largo para referenciar el monto de la pensión, éste realmente refleja los salarios de la vida laboral de un trabajador, logrando que la pensión sea acorde a lo aportado, pero una vez que esta metodología brinda un promedio mucho más bajo que los últimos salarios -ya que normalmente a lo largo de la vida laboral de una persona ésta recibe promociones o ascensos de categorías u otros cambios laborales y salariales-, sería erróneo hacer una referencia al último salario de la persona sin conocer su pasado salarial. Manifiestan que, a pesar de esto, lo que si se puede observar es que, en la actualidad y de acuerdo con datos oficiales suministrados por el Departamento de Gestión Humana del Poder Judicial, cerca del 62% de los trabajadores ganan menos de dicho salario -¢1.259.005,00-, lo que hace pensar que un porcentaje de trabajadores muy superior a ese porcentaje, tendría montos de jubilación menores a los que otorgaría el IVM si se toma en cuenta que el monto de referencia sería el promedio de los últimos 240 salarios y no el salario actual. Señalan que en los siguientes cuadros comparativos de la asignación mensual bruta y neta de ambos regímenes, visualizan claramente la disminución en las asignaciones netas otorgadas a los cotizantes bajo el Régimen de Jubilaciones y Pensiones del Poder Judicial, aún y cuando éstas aportan 4 veces más que los del régimen del IVM.

Cuadro Nº 1 Salario Promedio de ¢500.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢500.000 82% ¢410.000 ¢20.500 ¢55.350 ¢ 0 ¢334.150 IVM (mujer) (hombre) ¢500.000 ¢500.000 70,4226% 70,2893% ¢352.133 ¢351.466 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢352.133 ¢351.466 Diferencia:

Mujer Hombre - ¢17.983 - ¢17.316 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 52,5% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 52,5% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 2 Salario Promedio de ¢750.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢750.000 82% ¢615.000 ¢30.750 ¢83.025 ¢ 0 ¢501.225 IVM (mujer) (hombre) ¢750.000 ¢750.000 68,922% 68,789% ¢516.950 ¢515.950 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢516.950 ¢515.950 Diferencia:

Mujer Hombre - ¢15.725 - ¢14.725 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 51% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 51% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 3 Salario Promedio de ¢1.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢1.000.000 82% ¢820.000 ¢41.000 ¢110.700 ¢ 0 ¢668.300 IVM (mujer) (hombre) ¢1.000.000 ¢1.000.000 67,3226% 67,1893% ¢673.266 ¢671.933 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢673.266 ¢671.266 Diferencia:

Mujer Hombre - ¢4.966 - ¢3.633 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 49,4% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 49,4% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 4 Salario Promedio de ¢1.500.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢1.500.000 82% ¢1.230.000 ¢61.500 ¢166.050 ¢ 44.650 ¢957.800 IVM (mujer) (hombre) ¢1.500.000 ¢1.500.000 70,4226% 70,2893% ¢961.900 ¢959.900 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 16.290 ¢ 16.090 ¢945.610 ¢943.810 Diferencia:

Mujer Hombre + ¢12.190 + ¢13.990 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 46,2% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 46,2% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 5 Salario Promedio de ¢2.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢2.000.000 82% ¢1.640.000 ¢82.000 ¢221.400 ¢ 106.150 ¢1.230.450 IVM (mujer) (hombre) ¢2.000.000 ¢2.000.000 60,9226% 60,7893% ¢1.218,532 ¢1.215.866 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 42.930 ¢ 42.530 ¢1.175.602 ¢1.173.336 Diferencia:

Mujer Hombre + ¢54.848 + ¢57.114 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 6 Salario Promedio de ¢3.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢3.000.000 82% ¢2.460.000 ¢123.000 ¢332.100 ¢ 229.150 ¢1.775.750 IVM (mujer) (hombre) ¢3.000.000 ¢3.000.000 60,9226% 60,7893% ¢1.548.189 ¢1.548.189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92.378 ¢ 92.378 ¢1.455.810 ¢1.455.810 Diferencia:

Mujer Hombre + ¢329.940 + ¢329.940 1. El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) 2. Con este salario promedio, el Régimen del IVM pone un tope a la pensión de ¢1.548.189.00, el cual se ajusta cada semestre.

Cuadro Nº 7 Salario Promedio de ¢4.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢4.000.000 82% ¢3.280.000 ¢164.000 ¢442.800 ¢ 352.150 ¢2.321.050 IVM (mujer) (hombre) ¢4.000.000 ¢4.000.000 60,9226% 60,7893% ¢1.548.189 ¢1.548.189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92.378 ¢ 92.378 ¢1.455.810 ¢1.455.810 Diferencia:

Mujer Hombre + ¢865.240 + ¢865.240 1. El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) 2) Con este salario promedio, el Régimen del IVM pone un tope a la pensión de ¢1.548.189.00, el cual se ajusta cada semestre.

A partir de la comparación anterior, concluyen lo siguiente: a) queda en evidencia que, sobre aquellos salarios cuyo promedio mensual de los últimos 20 años sea inferior a ¢1.5 millones de colones, existe un cuantioso perjuicio económico para los empleados del Poder Judicial, ya que los cotizantes bajo este régimen deben, mes a mes, aportar 4 veces más que los cotizantes al IVM, siendo los beneficios otorgados bajo el Régimen del Poder Judicial, muy inferiores a los del IVM; b) que el Régimen del Poder Judicial realmente es más gravoso que el Régimen del IVM; el primero tiene como referentes a personas que cumplan los requisitos de 65 años de edad y de 35 años de servicio pero no puede dejarse por fuera que en la institución hay muchos funcionarios que ingresan a trabajar desde muy jóvenes, incluso a los 18 años de edad, por lo que si se compara esta situación con los beneficios que recibiría en el IVM, las diferencias serían aún mayores y, en consecuencia, el perjuicio al pertenecer al Régimen del Poder Judicial, sería también mayor, sin que se pueda dejar de lado que éste no contempla dentro de su normativa, incentivos por antigüedad ni postergación, tal y como si lo tiene el IVM. Así, a manera de ejemplo, indican que si una persona ingresa al Poder Judicial a los 18 años y permanece hasta los 65 años (fecha en que puede acogerse a la jubilación), habrá cotizado un total de 47 años para el fondo, pero tendría los mismos beneficios que un funcionario que ingrese a laborar a los 30 años de edad, o sea, sus cotizaciones servirían para subsidiar a las personas que laboren durante menos tiempo para la institución y, en consecuencia, coticen menos para el fondo. Consideran que es claro que el Régimen de Jubilaciones y Pensiones del Poder Judicial, requiere ajustes que le permitan garantizar las actuales y futuras asignaciones al punto de que fue el propio colectivo judicial -representado por lo que se denominó el “Frente Gremial”-, el que desde hace ya varios años planteó la importancia de realizar dichos ajustes y, por esto, se propuso un proyecto de ley equilibrado que se ajustara al requerimiento de todos los intervinientes. Aducen que, no obstante lo anterior, la normativa cuestionada se excedió, no sólo en la aplicación de restrictores para evitar las llamadas pensiones de lujo -que no fueron eliminadas-, sino además en establecer porcentajes de cotización que, en comparación con el régimen básico del IVM, van en detrimento de la gran mayoría del colectivo judicial, siendo que, una vez más, los que en mayor medida salen perjudicados son quienes perciben menor ingreso salarial, en contravención de los principios rectores que deben sustentar los regímenes de pensiones, a saber, la igualdad y solidaridad. Argumentan que, a partir de los cuadros anteriores, no sólo se refleja la desproporción y poca razonabilidad entre ambos regímenes (IVM y PJ), sino además que las personas con salarios más bajos dentro del escalafón de puestos del Poder Judicial, son las que se ven más afectadas con la aplicación de la Ley 9544, ya que sus aportes son superiores a los del IVM, pero obteniendo menores beneficios, con lo cual, sus aportes lo que hacen es sostener las jubilaciones y pensiones más elevadas, según se aprecia a partir del cuadro 5, observándose que las asignaciones dadas por el Régimen del Poder Judicial, serían mayores a las otorgadas por el IVM, dentro de esos rangos salariales (como promedio de los últimos 240 salarios mensuales), que dicho sea de paso, son los menos, ya que según los datos otorgados por el Departamento de Gestión Humana mediante el oficio N° DGH-475-2018 fechado 13 de junio de 2018 (se está consiguiendo este documento), el 71,40% de los empleados del Poder Judicial tienen actualmente un salario inferior a los 2 millones de colones, mientras que el 27,65% tienen salarios que oscilan entre los 2 y los 4 millones de colones y únicamente el 0,84% de los empleados (Alta Gerencia), supera los 4 millones de colones. Argumentan que, además, debe de tomarse en cuenta que, aún y cuando el 27,65% de los empleados del Poder Judicial (puestos profesionales, dentro de los que se encuentran Jueces, Fiscales y Defensores Públicos) tiene salarios superiores que se ubican entre los 2 y los 4 millones de colones, al momento de aplicar el promedio de los últimos 240 salarios, dicho monto se reduciría considerablemente; hecho que hace ver que, dentro del rango que supera los beneficios otorgados por el IVM, solo se encuentran los llamados “Puestos Gerenciales” del Poder Judicial, los cuales ascienden a menos de 50 puestos, de los más de 13.000 que conforman la planilla del Poder Judicial. Señalan que, de esta manera, la reforma impuesta -que aquí se alega de inconstitucional- fue impulsada porque 35 personas reciben pensiones entre 4 y 8 millones de colones, pero debe verse la situación de los demás funcionarios del Poder Judicial:

• a)solo un 1% son pensiones de ¢5 a ¢8 millones de colones; b) solo el 3% de las pensiones y Jubilaciones del Poder Judicial superan los ¢4 millones de colones; c) un 2% son pensiones de ¢4 millones a ¢5 millones de colones; d) un 23% recibe una pensión entre ¢2 y ¢3 millones de colones; e) un 21% de un ¢1.500.000 a ¢2 millones de colones; f) un 53% entre ¢375.000 y ¢1.500.000 de colones.

Argumentan que, aún y cuando se estableció un tope a las pensiones de la institución de ¢4 millones de colones y una contribución solidaria entre el 35% y el 55%, estas medidas aplican únicamente para quienes se desempeñan como Magistrados y puestos de alta Gerencia Administrativa (tales como la Secretaria de la Corte, miembros del Consejo Superior, Director Ejecutivo), a quienes se les garantiza un mínimo de pensión de ¢4 millones de colones pero con una contribución solidaria entre el 35% al 55% del excedente a tal suma. Advierten que no hay normas de protección respecto de los servidores de la institución con salarios inferiores y menos para quienes tengan los ingresos más bajos, siendo que el legislador no entendió que los cambios aprobados en la Ley impugnada, no afectan a quienes se desempeñen en aquellos altos puestos -porque a éstos se les garantiza un mínimo de pensión por un alto monto-, sino que, en realidad, esta ley a quienes perjudica es a la generalidad y a la mayoría de los servidores judiciales, los que representan el 97% de la población judicial, que ven reducidos sustancialmente y de manera grosera, sus salarios y el monto de la pensión y/o jubilación, en comparación con las cargas que se les imponen. Indican que, por otra parte, el artículo 224 bis de la Ley 9544, establece una penalización en caso de querer optar por una jubilación anticipada en dos sentidos: a) por tiempo de servicio y b) por edad: así haber cumplido 35 años de servicio pero no los 65 años de edad con una edad mínima de 60 años en relación a las mujeres y de 62 años en relación a los hombres, genera el siguiente efecto:

“El cálculo se hará multiplicando la pensión obtenida según lo establecido en el artículo 224 para el cálculo de la jubilación ordinaria, por la edad del servidor y el producto se dividirá entre sesenta y cinco; el resultado de esta operación constituirá el monto de la jubilación anticipada”.

Argumentan que el porcentaje del 82% establecido para la pensión en el artículo 224 -aplicable únicamente a los supuestos de cumplimiento de los presupuestos de la edad del servidor (65 años) y los años de servicio (35 años de servicio)-, se reduciría de la siguiente manera:

Cuantía por pensión anticipada EDAD Mujeres Hombres 60 75,69% No aplica 61 76,95% No aplica 62 78,21% 78,21% 63 79,47% 79,47% 64 80,73% 80,73% Aducen que estas pensiones poseen las mismas deducciones indicadas, es decir, su cuantía disminuye un 18,5%: con ocasión de la cotización al fondo 13%, el 5 por mil para el financiamiento de la Junta Administrativa y la contribución al seguro de salud (del 5%) al tenor de lo cual, en estos casos, la cuantía neta en caso de anticipo por edad, quedaría de la siguiente manera:

Cuantía neta por pensión anticipada (con rebajas y contribuciones establecidas en la Ley) EDAD Mujeres Hombres 60 61,68% No aplica 61 62,71% No aplica 62 63,74% 63,74% 63 64,76% 64,76% 64 65,79% 65,79% Indican que es importante señalar que estas diferencias entre ambos regímenes, aumentan cuando el trabajador decide postergar su retiro: por ejemplo, si una persona empieza a laborar a los 18 años de edad y alcanza los 35 años de servicio a los 53 años, no podría retirarse por ninguno de los dos regímenes, o sea, ni por el Régimen del Poder Judicial ni por el Régimen de Invalidez, Vejez y Muerte de la CCSS, siendo que si es funcionario del Poder Judicial podría retirarse a los 60 años si es mujer con 42 años de servicio o, 62 si es hombre con 44 años de trabajo. Argumentan que, en razón de los años de servicio para el Poder Judicial -que superan en creces los establecidos como presupuesto básico para la pensión ordinaria-, siempre habría penalización en caso de un retiro anticipado, de modo que se pensionaría con un 61,68% neto del salario de referencia (75,69% bruto) en caso de ser mujer, o con 63,74% neto (78,21%) en caso de ser hombre. Agregan que, ante la situación anterior, en el IVM una mujer se pensionaría con una bonificación del 22% más la cuantía base que rondaría entre 43% y un 52,5%, es decir, según sus salarios la pensión rondaría un 65% a un 74,5% del salario de referencia -igualmente a los 60 años de edad- , y en el caso de un hombre a los 62 años de edad, tendría una pensión que rondaría entre los 67% y 76,5%. Manifiestan que la diferencia entre los regímenes del Poder Judicial y el IVM aumenta aún más si el trabajador decide retirarse a los 65 años de edad ya que, para el Régimen del Poder Judicial alcanzaría la pensión completa es decir un 66.83% neto (82% bruto), y en el IVM por la postergación sería de un 71,79% para el menor de los rangos en caso de los hombres, y de una mujer sería de un 73%. Indican que la anterior confrontación evidencia la desigualdad de trato, en general, con el sector laboral del Poder Judicial, dada la evidente sobrecarga que se le impone a los empleados judiciales en relación con el resto de funcionarios que cotizan para el IVM del Seguro Social, en franca violación del principio de igualdad, estimando que se vulnera flagrantemente el artículo 33 de la Constitución porque los funcionarios del Poder Judicial recibirán una pensión menor que los beneficiarios del régimen de IVM de la CCSS, pero cotizan 4 veces más que los segundos. Estiman que esta desigualdad no tiene ninguna justificación por motivos de orden público. Insisten en cuanto a que la manera como el legislador diseñó y modificó el Régimen de Pensiones y Jubilaciones del Poder Judicial, afecta no sólo el salario de los empleados judiciales, sino también el monto de la pensión y/o jubilación, considerando en que existe una grave afectación de los citados principios constitucionales de razonabilidad y progresividad en el reconocimiento de los derechos fundamentales. Denotan que, además de lo anterior, se impuso el cálculo del impuesto sobre la renta de la pensión y/o jubilación sobre el monto bruto, es decir, sin haber hecho las deducciones correspondientes a las múltiples cargas que se imponen a este monto -aportación al régimen de pensiones y/o jubilaciones y al seguro social así como al financiamiento de la Junta de Administración-, y repiten que esas cargas no las tienen los pensionados de otros regímenes. Argumentan que esto agrava aún más la situación, no sólo para los servidores activos, sino también para los pensionados y/o jubilados del Poder Judicial, siendo que estos últimos se encuentran en una situación vulnerable por su edad y por estar en una etapa en la cual difícilmente se puede encontrar otra fuente de financiamiento para su sostenimiento personal y de su familia. Advierten que no se puede olvidar que para el cálculo del impuesto sobre la renta, la regla general es que se hace luego de hacer las deducciones de ley, esto es, sobre el ingreso líquido no bruto. Consideran que los diputados aprobaron un sistema que afectó a toda la colectividad de la institución (Poder Judicial), siendo que, en las clases y puestos con menor retribución salarial, es en los que se hace más evidente la desproporción de la fórmula de cálculo de la pensión y/o jubilación en el Régimen de Jubilaciones y Pensiones del Poder Judicial. Manifiestan que, en consecuencia, el régimen aprobado, según se ha explicado, no atiende a las variables y principios que rigen la materia de seguridad social, como se acredita en las conclusiones del estudio realizado por el actuario matemático Esteban Bermúdez, esto en comparación con las obligaciones y los beneficios del Régimen de Jubilaciones y Pensiones del Poder Judicial en relación con el Régimen de Invalidez, Vejez y Muerte que administra la Caja Costarricense del Seguro Social (IVM). Informan que las conclusiones a las que se llegó en el estudio realizado por el actuario matemático Esteban Bermúdez, son las siguientes:

Conclusión 1. La fórmula de cálculo de pensión del Poder Judicial no posee reconocimientos por antigüedad como lo son la bonificación y la postergación, lo que no estimula al trabajador a laborar más tiempo y esto genera un aumento de los pasivos de fondo y montos de pensión más bajos; además que, para alcanzar un derecho de pensión ordinario en el Régimen del Poder Judicial, se requiere un 40% de cotizaciones, lo que es mucho mayor que en el Régimen del IVM, y que se traduce en 10 años más de servicio.

Conclusión 2. Aproximadamente el 62% de los trabajadores del Poder Judicial poseen salarios inferiores a ¢1.259.005,00 colones, lo que generaría en esta población derechos jubilatorios inferiores a los que otorga el Régimen IVM, esto si se toma en cuenta que éste sea el salario promedio de los últimos 240 meses.

Conclusión 3. La Reforma del Régimen del Poder Judicial genera pensiones similares a las del Régimen del IVM; sin embargo, para los salarios más bajos del Poder Judicial, estas pensiones podrían llegar a ser menores que las obtenidas por los trabajadores del Régimen del IVM, por lo que la reforma no es ni atractiva, ni competitiva, ni rentable para estos trabajadores.

Conclusión 4. Con la estructura actual de otorgamiento de pensión se incentiva el retiro anticipado -antes de los 62 años-, lo que genera un aumento en los pasivos actuariales del Fondo de Pensiones y Jubilaciones del Poder Judicial.

Conclusión 5. Una cotización tripartita del 28,6% para el Régimen del Poder Judicial y de un 13% para el obrero, son 281,5% y 338,5% mayores respectivamente a sus similares del Régimen del IVM, aunque para la mayoría de trabajadores judiciales su pensión será inferior a la otorgada por la CCSS; es decir, no existe una relación, o bien ésta es desproporcionada entre el monto cotizado y monto de pensión a otorgar.

Manifiestan que se rompen los principios de solidaridad -tanto inter generacional como intra generacional- al momento en que el trabajador puede retirar los dineros, como si no existiese el apoyo a las poblaciones pensionadas. Añaden que, además, por la naturaleza parafiscal de las cotizaciones, éstas no pueden ser consideradas parte del patrimonio del trabajador sino de la colectividad, con un fin definido, por lo que el traslado de cotizaciones a un fondo privado e individual es contrario al fin para el cual fueron creadas las cotizaciones. Señalan que el experto Esteban Bermúdez Aguilar, actuario matemático que hizo el estudio al que se están refiriendo, dijo:

"Para finalizar este análisis, la unión de los bajos o similares beneficios que otorga la actual reforma junto con la posibilidad trasladar cotizaciones IVM con la respectiva privatización de la diferencia de cotización al ser trasladadas al ROP, abre una posibilidad siniestra donde los trabajadores al alcanzar las cotizaciones necesarias en el IVM, decidan renunciar al Poder Judicial, laborar independientemente y cotizar en el IVM por un plazo determinado tiempo, solicitar traslado y así acceder a una pensión por IVM, pero como ROP mayor, generándole una pensión complementaria mayor a costa del debilitamiento el fondo del RJPPJ".

Además, señalan que el indicado profesional advirtió que "(A)ctualmente el IVM, no exige mínimos de pertenencia en ese régimen para trasladar cotizaciones". Manifiestan que es evidente que, el régimen de Jubilaciones y Pensiones del Poder Judicial definido en la Ley número 9544, premia con una mejor pensión relativa a los salarios más altos, mientras que otorga pensiones de menor cuantía a los salarios más bajos de la mayoría de trabajadores del Poder Judicial, estableciéndose así un beneficio mucho menor que si hubiesen cotizado para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social -según los cuadros insertos-, para los puestos más bajos del Poder Judicial; y se mantiene una condición de privilegio para los puestos de alta gerencia de la institución. Consideran que lo anterior rompe los principios de la seguridad social de la redistribución y solidaridad de las pensiones, entendido como la manera en que un régimen de pensiones distribuye los montos ahorrados entre sus afiliados, de tal modo que sea considerada justa o conveniente; en el caso concreto, consideran que se ha creado un régimen desigual y discriminatorio. Aducen que tal y como fue diseñado este sistema por los legisladores en la Ley número 9544, la redistribución de los montos ahorrados favorece al sector con mayores ingresos de los afiliados al Régimen de Jubilaciones y Pensiones del Poder Judicial, que son la minoría de los trabajadores y ronda apenas un 1% del colectivo de la institución. Indican que por resolución número 2017-015272 de la Sala Constitucional de las 9 horas 30 minutos del 25 de septiembre de 2017, fue admitida una acción de inconstitucionalidad (número 17-006076-0007-CO) contra el artículo 1 de la sesión No. 26 de 11 de agosto de 2008 y el artículo XIV de la sesión extraordinaria No. 32 de 8 de noviembre de 2010, por los cuales se aumentó los salarios de la alta jerarquía del Poder Judicial, que es una de las causas principales de la salida de fondos del Régimen del Poder Judicial, provocando una crisis y desestabilización en el Régimen de Pensiones y Jubilaciones de este Poder de la República. Argumentan que, en su criterio, la propuesta aprobada en la Ley número 9544, resulta violatoria de todos los principios del Derecho de la Constitución que rigen el derecho a la pensión y que deberían darle sustento a la reforma, a saber, los principios de igualdad, justicia redistributiva, solidaridad y eficiencia que, a su vez, son expresión de la concepción y modelo de Estado Social y Democrático de Derecho que define el orden constitucional costarricense. Añaden que las anteriores consideraciones están referenciadas en el informe técnico elaborado por el señor Esteban Bermúdez, quien funge como actuario del Fondo de Jubilaciones y Pensiones del Magisterio Nacional; estudio que se hizo a petición de la Asociación Costarricense de la Judicatura (ACOJUD) y que se aporta a la Sala. B) De la falta de proporcionalidad en sentido estricto de la normativa aprobada en la Ley 9544. No se atendieron criterios técnicos. Advierten que, al momento de iniciarse el trámite y discusión de las reformas al Régimen de Jubilaciones y Pensiones del Poder Judicial, ninguna de las propuestas existentes en el seno legislativo contaba con estudio técnico sino que estaba en trámite el procedimiento para la contratación de los estudios actuariales al Instituto de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica; sin embargo, aclaran que el estudio actuarial realizado por este Instituto de la Universidad de Costa Rica, no analizó ninguno de los textos sustitutivos que adoptó -en primer orden- la Comisión Especial para discusión, ni tampoco el finalmente votado por el Plenario Legislativo, y que hoy es la Ley número 9544. Aclaran que el estudio actuarial únicamente atendió a los anteriores factores del sostenimiento económico, financiero y contable del fondo, no así a las consecuencias que su aprobación causaría a los servidores y cotizantes del régimen, en total desatención de los principios constitucionales y del Derecho de la Constitución que rigen esta materia, a saber, de solidaridad, redistribución justa, igualdad (incluyendo acciones positivas para atender a la desigualdad de género) y no discriminación, siendo que, bajo esta premisa, hizo su propia propuesta de reforma. Anotan que, en sesión ordinaria número 23 celebrada el 27 de julio del 2017, la Comisión Especial Legislativa confirió audiencia al Instituto de Investigaciones de Ciencias Económicas, a fin de intentar justificar la última propuesta (tercer texto sustitutivo) finalmente aprobado y dictaminado por esa Comisión en la misma sesión y, en su respuesta, el Instituto de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica (IICE), advirtió de ciertos cambios en los elementos esenciales, una vez más, para atender únicamente a la sostenibilidad del régimen. Argumentan que prevaleció únicamente la supuesta solidez económica del fondo, que no es tal, a costa de las gravosas contribuciones de quienes están adscritos a este régimen, pero no se atendieron las quejas acerca del efecto dañino que la reforma tendría contra el 62% de los funcionarios del Poder Judicial; porcentaje que consideran que es conservador por la base de cálculo para la pensión en la Ley impugnada, de manera que podría ser mayor. Añaden que estas restricciones y limitaciones no responden a los criterios de utilidad, menor afectación y proporcionalidad en sentido estricto que son los criterios de evaluación y ponderación del régimen de limitación de los derechos fundamentales conforme al desarrollo que ha hecho la Sala Constitucional, sobre todo a partir de sus sentencias 3550-92 del 24 de noviembre de 1992 y 4205-96 del 20 de agosto de 1996; en consecuencia, estiman que ese es un motivo más por el cual esta reforma es excesiva y arbitraria. Destacan que lo más grave de todo es que esta reforma no cumple la finalidad que -supuestamente- motivó su creación que era la modificación del régimen para hacerlo sostenible, fuerte y eliminar las pensiones de lujo; al contrario, afirman que se afectó a la generalidad del colectivo de trabajadores del Poder Judicial que ahora ven rebajados sustancialmente sus salarios, pensiones y jubilaciones, manteniéndose igual las pensiones de lujo. Recuerdan que tanto la Sala Constitucional como la Organización Internacional del Trabajo sostienen el criterio de que, para modificar el sistema de pensiones, hay que contar con criterios técnicos; sin embargo, a pesar de ello, los artículos 224 y 224 bis de la reforma impugnada, no cuentan con ellos para aumentar el límite del cálculo de la pensión de 10 a 20 años. Argumentan que, sobre el particular, la Sala Constitucional ha anulado leyes por carecer de criterios técnicos: en las sentencias número 2011-6805 del 27 de mayo del 2011 en que se anuló el inciso k) del artículo 131 de la Ley de Tránsito por Vías Públicas Terrestres; número 2011-13393 del 5 de octubre del 2011 que anuló el inciso ñ) del artículo 132 de la Ley de Tránsito por Vías Públicas Terrestres; y la número 2011-13436 del 5 de octubre del 2011 anuló el artículo 3.7 del Decreto Ejecutivo 35748-MP-MINAET-MIVAH. Añaden que esos razonamientos permitieron a la Sala Constitucional declarar que las leyes pueden ser anuladas si sufren de ese vicio de la irracionalidad y desproporción entre medios y fines, siendo que, los criterios que se deducen de los casos judiciales para declarar inconstitucional una ley, son los siguientes:

• a)la regulación no satisface un interés público imperativo; b) de varias opciones válidas, debe seleccionarse la que menos restrinja el derecho regulado; c) la restricción debe ser proporcionada al fin que la motiva y debe restringirse a cumplir ese fin (proporcionalidad de la regulación); d) la restricción debe ser excepcional por estar motivada en un imperativo social.

Argumentan que el respeto de estos criterios permite valorar posteriormente la constitucionalidad de las normas regulatorias puesto que la limitación impuesta por ley, será la mejor alternativa de otras más gravosas para los derechos de los ciudadanos. Recuerdan que en la sentencia número 08858-98 de las 16 horas con 33 minutos del 15 de diciembre de 1998, la Sala Constitucional desarrolló esos conceptos respecto de las normas de carácter general, en los siguientes términos:

"Así, un acto limitativo de derechos es razonable cuando cumple con una triple condición: [cuando] es necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad -o de un determinado grupo- mediante la adopción de una medida de diferenciación. Es decir, que, si dicha actuación no es realizada, importantes intereses públicos van a ser lesionados. Si la limitación no es necesaria, tampoco podrá ser considerada como razonable, y por ende constitucionalmente válida. La idoneidad, por su parte, importa un juicio referente a si el tipo de restricción a ser adoptado cumple o no con la finalidad de satisfacer la necesidad detectada. La idoneidad de la medida nos indicaría que pueden existir otros mecanismos que en mejor manera solucionen la necesidad existente, pudiendo algunos de ellos cumplir con la finalidad propuesta sin restringir el disfrute del derecho en cuestión. Por su parte, la proporcionalidad nos remite a un juicio de necesaria comparación entre la finalidad perseguida por el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea de entidad marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. De los dos últimos elementos, podría decirse que el primero se basa en un juicio cualitativo, en cuanto que el segundo parte de una comparación cuantitativa de los dos objetos analizados" (los destacados son del memorial).

Destacan que ha sido la propia Sala Constitucional la que desarrolló el principio de razonabilidad, reconociéndole el rango constitucional en los términos de la sentencia número 3057-2014 de las 14 horas 30 minutos del 05 de marzo de 2014 en que razonó:

"El principio de proporcionalidad deriva del Estado de Derecho y constituye un límite a su actuación. Todos los órganos y entes del Estado están sometidos a éste (...) Por esto, el principio de proporcionalidad, aunque no se establezca en forma expresa en la Constitución Política, ha sido reconocido por la jurisprudencia de esta Sala como un principio de rango constitucional, integrado en el Derecho de la Constitución, vinculante para todos los intervinientes, tanto en la fase de creación de la norma como en las etapas de interpretación y aplicación a los casos concretos. El juicio de proporcionalidad implica en primer término un análisis o valoración de la adecuación o idoneidad, así, una ley es adecuada cuando por medio de ella se puede coadyuvar a alcanzar el fin deseado; en segundo lugar, un análisis sobre la necesidad, esto es, una ley es necesaria cuando el legislador no hubiera podido elegir otro medio, igualmente efectivo que implicara una restricción o limitación menor del derecho fundamental y por último, un examen de la proporcionalidad en sentido estricto o prohibición de exceso de la restricción. (...) En ese sentido, la proporcionalidad está íntimamente ligada con la razonabilidad de las normas, siendo uno de sus componentes. La propia jurisprudencia constitucional ha señalado como sus componentes los de legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto, considerando que: "... La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada debe ser apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, debe la autoridad competente elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aparte del requisito de que la norma sea apta y necesaria, lo ordenado por ella no debe estar fuera de proporción con respecto al objetivo pretendido, o sea, no le sea "exigible" al individuo. (...) (Sentencia de esta Sala número 03933-98, de las nueve horas cincuenta y nueve minutos el doce de junio de mil novecientos noventa y ocho). Así, un acto limitativo de derechos es razonable cuando cumple con una triple condición: es necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base fáctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad -o de un determinado grupo- mediante la adopción de una medida de diferenciación. Es decir, que, si dicha actuación no es realizada, importantes intereses públicos van a ser lesionados. Si la limitación no es necesaria, tampoco podrá ser considerada como razonable, y por ende constitucionalmente válida. La idoneidad, por su parte, importa un juicio referente a si el tipo de restricción a ser adoptado cumple o no con la finalidad de satisfacer la necesidad detectada. La idoneidad de la medida nos indicaría que pueden existir otros mecanismos que en mejor manera solucionen la necesidad existente, pudiendo algunos de ellos cumplir con la finalidad propuesta sin restringir el disfrute del derecho en cuestión. Por su parte, la proporcionalidad nos remite a un juicio de necesaria comparación entre la finalidad perseguida por el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea de entidad marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. De los dos últimos elementos, podría decirse que el primero se basa en un juicio cualitativo, en cuanto que el segundo parte de una comparación cuantitativa de los dos objetos analizados (ver sentencia número 8858-98 de las 16 horas con 33 minutos del 15 de diciembre de 1998)".

Señalan que estas reglas son similares a las desarrolladas por el Tribunal Constitucional Alemán que ha definido 3 conceptos básicos para analizar la constitucionalidad de las leyes no fundada en el conflicto directo con alguna norma del texto constitucional, y que ha establecido que no es posible promulgar leyes que restrinjan los derechos humanos, si no existen medios apropiados para lograr un fin legítimo deben preverse los efectos menos restrictivos, los medios deben ser proporcionados al fin:

“PROPORCIONALIDAD. El principio de proporcionalidad como el concepto de orden objetivo de valores ...es crucial para la comprensión del Derecho Constitucional alemán. La proporcionalidad juega un papel similar al de la Doctrina del debido proceso legal Americana. La Ley Básica no contiene una referencia explícita a la proporcionalidad, pero la Constitución la considera como un elemento indispensable de un estado basado en el Estado de Derecho. La Corte consistentemente invoca el principio de proporcionalidad al determinar si la legislación y otros actos gubernamentales se conforman a los valores y principios de la Ley Básica. En mucho de su trabajo, la Corte menos preocupada por interpretar la Constitución -esto es, definir el significado del texto documentado- que en aplicar una prueba de medios y fines para determinar si un particular derecho ha sido sobrecargado a la luz de ciertos hechos dados. De hecho, el abordaje Alemán no es tan diferente de la metodología frecuentemente empleado por la Suprema Corte de los Estados Unidos en casos de derechos fundamentales.

En su versión alemana, el razonamiento de proporcionalidad es un proceso de tres pasos. Primero, siempre el Parlamento promulga una ley restringiendo un derecho básico, los medios empleados deben ser apropiados (eignung) al cumplimiento de un fin legitimo. Porque, como en la Ley Básica, los derechos están limitados por deberes y son frecuentemente limitados por fines y valores especificados en el texto, la Corte Constitucional recibe una guía considerable para determinar la legitimidad de un propósito estatal. El lenguaje escaso de la Constitución de los Estados Unidos, por contraste, frecuentemente alienta a la Suprema Corte a confiar en argumentos filosóficos no textuales -para determinar la validez de un propósito estatal que incide sobre un derecho constitucional-. Segundo. Los medios empleados para obtener el fin válido deben tener los efectos menos restrictivos (Erforderiichkit) sobre un valor constitucional. Este criterio es aplicado flexiblemente y debe cumplir la norma de racionalidad. Tal como es aplicado por la Corte Constitucional, es menos que el “escrutinio estricto” y más que el criterio de “racionalidad mínima” del derecho Constitucional Americano. Finalmente, los medios deben ser proporcionados al fin. La carga sobre el derecho no debe ser excesivo en relación con los beneficios asegurado por los objetivos estatales (Zumutbarkeit). Este criterio trifurcado de proporcionalidad parece completamente compatible con, si no exigido por, el principio de concordancia práctica” (Donald P. Komers. The Constitutional Jurisprudence of the Federal Republic of Germany. Duke University Press. Durham and London. 1997. Página 46) (los destacados son del memorial).

Señalan que la Sala Constitucional ha adoptado estos criterios del Tribunal Constitucional Alemán en una sentencia sobre el irrespeto a los límites de velocidad en la que señaló:

“… La doctrina alemana hizo un aporte importante al tema de la "razonabilidad” al lograr identificar de una manera muy clara, sus componentes: legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto, ideas que desarrolla afirmando que “...La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada deber ser apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, debe la autoridad competente elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aparte del requisito de que la norma sea apta y necesaria, lo ordenado por ella no debe estar fuera de proporción con respecto al objetivo pretendido, o sea, no le sea "exigible" al individuo..." (sentencia de esta Sala número 3933-98 de las 9 horas 59 minutos del 12 de junio de 1998)” (ver sentencia número 2000- 08744 de las 14 horas con 47 minutos del 4 de octubre del 2000) (los destacados son del memorial).

Concluyen que la Sala Constitucional ha definido estos conceptos de racionalidad y proporcionalidad de una manera amplia, referidos a posibles excesos legislativos en la regulación de las libertades y, por ello, estiman que la reforma no cumple estos criterios de razonabilidad y proporcionalidad porque creó una pensión más baja para el 62% de los funcionarios del Poder Judicial, sin un criterio técnico que lo justifique y en total contravención de los principios constitucionales que rigen el derecho a la pensión. También consideran que la Ley 9544 es inconstitucional en cuanto al fondo porque vulnera el principio de igualdad y no discriminación: a) En relación con este punto, argumentan que esa normativa no atiende a diferenciación de género en el diseño del régimen de pensiones y jubilaciones, en grave y directa violación del principio de la discriminación positiva. Señalan que el artículo 224 de la Ley Orgánica del Poder Judicial, reformada mediante la Ley número 9544, exige la misma edad a los hombres y las mujeres servidoras judiciales para acceder a la pensión ordinaria, estableciendo para ambos, la edad cumplida de los 65 años. Consideran que, con esta medida, los legisladores equiparon 2 grupos que están en franca situación desigual en razón del género, y con esto se incumple el principio de igualdad que no sólo obliga a atender igual las situaciones iguales así como diferenciar lo que es diferente, sino también, establecer acciones positivas ante situaciones de desventaja. Consideran que no atender a las especiales situaciones socio-económicas y laborales de la mujer que trabaja en el Poder Judicial, contraviene el derecho fundamental a la igualdad real, el derecho a la salud y a la dignidad humana, consagrados en los artículos 33 y 21 de la Constitución Política, al no aprobar el legislador, medidas de acción positiva (discriminación positiva) para paliar la situación desigual de mujeres frente a los hombres. Señalan que, la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW), ratificada por el Gobierno de Costa Rica mediante Ley número 6968 del 2 de octubre de 1984, y vigente a partir de su publicación, definió el concepto discriminación contra la mujer en los siguientes términos:

"Artículo 1:

A los efectos de la presente Convención, la expresión "discriminación contra la mujer" denotará toda distinción, exclusión o restricción basada en el sexo que tenga por objeto o por resultado menoscabar o anular el reconocimiento, goce o ejercicio por la mujer, independientemente de su estado civil, sobre la base de la igualdad del hombre y de la mujer, de los derechos humanos y las libertades fundamentales en las esferas política, económica, social, cultural y civil o en cualquier otra esfera" (los resaltados son del memorial).

Por su parte, recuerdan que el artículo 2 de esa Convención, prescribe:

"Los Estados Partes condenan la discriminación contra la mujer en todas sus formas, convienen en seguir, por todos los medios apropiados y sin dilaciones, una política encaminada a eliminar la discriminación contra la mujer y, con tal objeto, se comprometen a:

a...

• b)Adoptar medidas adecuadas, legislativas y de otro carácter, con las sanciones correspondientes, que prohíban toda discriminación contra la mujer.
• c)...
• d)Abstenerse de incurrir en todo acto o práctica de discriminación contra la mujer y velar porque las autoridades e instituciones públicas actúen de conformidad con esta obligación.

e)…

• f)Adoptar todas las medidas adecuadas, incluso de carácter legislativo, para modificar o derogar leyes, reglamentos, usos y prácticas que constituyen discriminación contra la mujer.

f)... " (los resaltados son del memorial).

Y en el mismo sentido, mencionan el artículo 11 de esa Convención:

"1- Los Estados Partes adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo a fin de asegurar, en condiciones de igualdad entre hombres y mujeres los mismos derechos, en particular:

(...)

• e)El derecho a la seguridad social, en particular en casos de jubilación, desempleo, enfermedad, invalidez, vejez u otra incapacidad para trabajar, así como el derecho a vacaciones pagadas.

(...)" (los resaltados son del memorial).

En igual sentido, argumentan que la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém Do Para", en el artículo 6, reconoció que el derecho de toda mujer a una vida libre de violencia incluye, se traduce entre otros, a "...ser libre de toda forma de discriminación"; dicho de otra manera, toda forma de discriminación -como lo es el no reconocimiento de su condición desventajosa que afecta el derecho de igualdad-, es una forma sancionada de violencia (los destacados son del memorial). Indican que, tratándose del derecho jubilatorio, se impone el establecimiento de una edad diversa para el reconocimiento de la pensión ordinaria a las mujeres en relación a los hombres, lo cual tiene como fundamento el respeto a la igualdad de derechos entre éstos, ya que cuando se habla de derechos de las mujeres y su defensa y desarrollo, es necesario reconocer que las distintas tareas asignadas a las mujeres, las ubican en una posición de mayor vulnerabilidad y, por ende, para enfrentar esa realidad, se ha recurrido a la utilización de lo que la doctrina estadounidense ha llamado acción positiva o acción afirmativa “affirmative action”, que no es otra cosa que la aplicación de políticas o acciones para favorecer a ciertos grupos minoritarios o que, históricamente, hayan sufrido discriminación, con el principal objetivo de buscar el equilibrio. Manifiestan que, en este sentido, el estudio de Solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial, nunca contempló como probable la distinción más clara en favor de las mujeres y así lo contestó oficialmente el Director del Instituto de Investigaciones en Ciencias Económicas de la UCR (IICE), José Antonio Cordero Peña, mediante oficio IICE-176-2017, a la Msc. Jeannette Arias Meza, Jefa de la Secretaría Técnica de Género y Acceso a la Justicia del Poder Judicial. Señalan que en el Informe Final: “Recopilación e informe Final: Conclusiones Recomendaciones, Producto 6”, del IICE del 23 de mayo del 2017, se reconoce que de acuerdo a las bases de datos del Poder Judicial 2010-2015, las mujeres tienen una participación menor en el total de jubilados pues en el año 2014 -que se usa como referencia-, las mujeres representaron un 32% de los jubilados, lo que refleja las barreras de acceso al trabajo remunerado en general, de manera que las que logran acceder a un régimen formal de pensiones, deben de soportarlo en condiciones de desigualdad. Aducen que, en conclusión, queda claro que la equiparación de condiciones jubilatorias de hombres y mujeres en el artículo 224 de la Ley Orgánica del Poder Judicial, reformada mediante Ley 9544, claramente violenta los artículos 21 y 33 de la Constitución Política, así como los citados convenios internacionales porque desconoce las diferencias existentes en las condiciones laborales de las mujeres y, al asimilar los requisitos jubilatorios entre hombres y mujeres, provoca una afectación real a éstas, por cuanto son ellas quienes realizan una jornada adicional de trabajo no remunerado, al tener asignado socialmente el rol de cuidadoras y encargadas de crianza, con las consecuencias que eso tiene en su desarrollo integral y su salud. Sobre el particular, hacen referencia a los siguientes estudios sobre la situación de la mujer en Costa Rica, los cuales consideran que son documentos objetivos que justifican y respaldan la real situación laboral diferenciada en relación con la de los hombres:

• a)Encuesta Nacional de Uso del Tiempo. Estudios generales. Año 2017. INEC.
• b)Estudio sobre Incapacidades en el Poder Judicial. Período 2013-2014, oficio número UICC-128-14 del 12 de junio del 2014, Departamento de Gestión Humana del Poder Judicial.
• c)Estudio: "Las mujeres en el trabajo. Tendencias 2016". OIT.
• d)Análisis de Situación de Salud en Costa Rica. Ministerio de Salud. Dirección de Vigilancia, marzo 2014.

Por otra parte, b) argumentan que la normativa transitoria contenida en la Ley 9544 es discriminatoria al no prever la progresividad en su aplicación. Señalan que la modificación al régimen adoptada en la Ley 9544 es drástica y gravosa para los servidores del Poder Judicial pues, de manera tajante, se modificaron todos sus elementos de manera sustancial, siendo que, además, no previó una graduación o gradualidad en su implementación, como consideran que debió haberse hecho, a fin de evitar gravísimas afectaciones, lo que estiman que ya se está viendo en la práctica con las consecuencias para la generalidad de los servidores y, en una menor proporción, en relación al 3% de los que están en el rango de las pensiones mayores a los ¢4 millones de colones. Así, estiman que el legislador debió de haber previsto de medidas de gradualidad, como propusieron los gremios del Poder Judicial a la Asamblea Legislativa, a fin de compensar el sacrificio adicional que tiene que hacer la clase trabajadora con este nuevo régimen. Indican que la Contralora General de la República se pronunció en ese sentido cuando indicó a los diputados integrantes de la Comisión Especial, e insistió, en la necesidad de adoptar medidas de sanación y prevención para garantizar la sostenibilidad del régimen, conforme a la realidad socio-económica del país y de las finanzas del Estado, sin que esto se tradujera en un debilitamiento del Poder Judicial -en lo que se refiere al sistema de retribución de los servidores judiciales y claro está, y del sistema de pensiones de la institución-, aclarando que tales cambios “... serán graduales porque estos temas son complejos. Como le decía a don Johnny, uno no puede pretender tener idealmente a todos en el mismo régimen de un año para otro, es muy complejo y requiere gradualidad y proporcionalidad” (ver Acta de Sesión Ordinaria número 8 de la Comisión Especial, celebrada el 16 de noviembre del 2016) (los resaltados son del memorial). Consideran que el no haber previsto la progresividad en la ejecución de estos cambios al sistema de pensiones y jubilaciones del Poder Judicial, ocasiona un daño especial en una colectividad del 62%; grave y especial daño que ya está generando el cumplimiento irrestricto de esta ley a los servidores del Poder Judicial toda vez que, de un día para otro, vieron reducidos sus salarios de manera significativa, no sólo por el aumento en la cotización al régimen sino también por el financiamiento de la Junta de Administración. Añaden que, en ese sentido, con base en el estudio actuarial elaborado por la Universidad de Costa Rica -que en su producto 5 dio varios criterios de los cuales el IICE_3 y el IICE_4, no sólo sustentables sino también con superávit-, mediante oficio 222- P-2017 del 27 de julio del 2017, el Msc. Carlos A. Montero Zúñiga, integrante del Consejo Superior y Coordinador del Equipo Técnico del Poder Judicial, le requirió a la Comisión Especial que se contemplara la progresividad en la aplicación de la nueva normativa a determinar y aprobar, en los siguientes términos:

"1. El Poder Judicial recibió a satisfacción, de manera formal, el Estudio Aduanal del Fondo de Jubilaciones y Pensiones elaborado por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, que se desarrolló con la participación del conglomerado gremial del Poder Judicial como parte del Comité Ejecutivo que aprobó los productos elaborados por la Universidad de Costa Rica.

2. El estudio plantea dos marcos de solvencia actuaríal IICE_3 e IICE_4, los cuales, a su vez, se desarrollaron en tres escenarios, sea el pesimista con una tasa de rendimiento del 2%, normal del 3% y el optimista del 4%.

En los escenarios optimistas no sólo se supera el déficit, sino que se alcanza un superávit actuarial.

3. Conforme oficio No. 0406-FC-2017 suscrito por la Máster Floribel Campos Solano, Jefe del Departamento de (sic) Financiero Contable que adjunto del año 2000 a la fecha, el Fondo de Jubilaciones y Pensiones ha obtenido rendimientos reales del 4.64%.

Todo lo anterior, demuestra que es posible trabajar con los escenarios del 4% y que el superávit que se produce compense la introducción de graduaciones que atenúan el impacto negativo de las eventuales reformas en las personas servidoras judiciales".

Indican que este requerimiento lo reiteró en el señor Carlos A. Montero Zúñiga en oficio 223-P- 2017 del 27 de julio del 2017; oficios aportados a la Sala como prueba. Acusan que, no obstante, no se atendió el contenido de esos oficios en acatamiento de principios superiores -constitucionales- de la menor afectación del derecho, igualdad y solidaridad. Por otra parte, c) consideran que se da un trato discriminatorio en perjuicio de los servidores judiciales en lo que se refiere al tratamiento de los derechos adquiridos, frente a los funcionarios del Tribunal Supremo de Elecciones que cotizan al Régimen de Pensiones y Jubilaciones del Poder Judicial. Sobre el particular, señalan que contrasta el distinto tratamiento que hace el legislador en relación al tema de los derechos adquiridos, para determinar la aprobación de la Ley que se impugna. Aducen que, conforme al mandato del artículo 129 de la Constitución Política, las leyes aprobadas por la Asamblea Legislativa "... son obligatorias y surten efectos desde el día en que ellas designen; a la falta de este requisito, diez días después de su publicación en el Diario Oficial". Argumentan que, en este caso, conforme lo dispuso de manera expresa la Ley 9544 al final, -sin articulado alguno-, los legisladores dispusieron su vigencia inmediata a partir de su publicación, lo que se hizo en La Gaceta número 89 del 22 de mayo de 2018. Señalan que en el Transitorio VI, se dispuso la siguiente previsión:

“TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

Manifiestan que, sin ninguna razón objetiva que lo justifique, se dispuso un tratamiento diferenciado para aquellos servidores que, perteneciendo al Régimen de Pensiones y Jubilaciones del Poder Judicial, trabajen en el Tribunal Supremo de Elecciones, ello por cuanto a esos funcionarios les declaró un derecho irrestricto de pertenencia a aquel régimen, pero sobre la base de la normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos.

“TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N.° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean” Argumentan que la Asociación que representan y quienes accionan en su conjunto, consideran que esta norma transitoria es totalmente discriminatoria, al distinguir entre los miembros del Régimen de Jubilaciones y Pensiones del Poder Judicial, si laboran para este Poder (el Judicial) o, bien, si trabajan para el Tribunal Supremo de Elecciones; en ese sentido se cuestionan si la normativa anterior es la misma, ¿porqué crear esta odiosa diferencia?. En razón de estos argumentos, piden declarar la inconstitucionalidad del Transitorio II de la Ley número 9544 por grosera violación del principio de igualdad contenido en el artículo 33 de la Constitución Política.

A partir de los argumentos planteados en esta acción de inconstitucionalidad, concluyen lo siguiente:

• 1)es inconstitucional la reforma aprobada por la Ley 9544 por haber violado directamente la Constitución Política al haber sido aprobada sin haber consultado a la CCSS, al Poder Judicial, ni a los bancos del Estado.
• 2)es inconstitucional la reforma aprobada por la Ley 9544 por haber violado directamente la Constitución Política al haber sido aprobada sin una mayoría calificada de 38 votos al tratarse de una reforma al Poder Judicial, según lo dispone el artículo 167 de la Constitución Política.
• 3)es inconstitucional la reforma aprobada por la Ley 9544 por no haberse publicado en el Diario Oficial La Gaceta el texto finalmente aprobado, ni ninguno de los anteriores textos sustitutivos, en aplicación del trámite aprobado según lo dispone el artículo 208 bis del Reglamento de la Asamblea Legislativa.
• 4)es inconstitucional la reforma aprobada por la Ley 9544 por sus efectos (art. 3 de la LJC) toda vez que las pensiones de los servidores judiciales serán menores que las del Régimen de IVM de la CCSS, por efecto de cargas desmedidas, arbitrarias y abusivas.
• 5)es inconstitucional la reforma aprobada por la Ley 9544 por falta de proporcionalidad en sentido estricto, porque es abiertamente desproporcionada, confiscatoria y desigual al establecer un régimen que en la mayoría del colectivo del Poder Judicial (62%), es inferior al mínimo del Régimen de IVM de la Caja Costarricense del Seguro Social y, sin embargo, ser excesivas las cargas que se imponen, tanto a servidores activos como pensionados y/o jubilados, de hasta 4 veces más en relación con los cotizantes del IVM.
• 6)es inconstitucional la reforma aprobada por la Ley 9544 en lo que refiere al tratamiento de los derechos adquiridos en relación con funcionarios del Tribunal Supremo de Elecciones que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial.
• 7)es inconstitucional la reforma aprobada por la Ley 9544 porque no atiende a diferenciación de género, en grave y directa violación del principio de la discriminación positiva.
• 8)es inconstitucional la reforma aprobada por la Ley 9544 por discriminatoria, al no prever la progresividad en su aplicación.

Finalizan solicitando que se declare la inconstitucionalidad de la Ley 9544 en los términos en que lo han planteado y que la Sala así lo declare.

116.- Los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como el Magistrado suplente José Paulino Hernández y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

117.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Araya García- de las 9 horas 35 minutos del 13 de septiembre del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y a los suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

118.- Mediante oficio agregado al expediente electrónico el 20 de septiembre de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6446 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Anamari Garro Vargas, Hubert Fernández Argüello, Mauricio Chacón Jiménez, Jorge Araya García, Lucila Monge Pizarro, Ileana Sánchez Navarro y Ana María Picado Brenes.

119.- El 24 de septiembre de 2018 la Magistrada suplente Anamari Garro Vargas; el 2 de octubre siguiente los Magistrados suplentes Ileana Sánchez Navarro, Hubert Fernández Argüello, Mauricio Chacón Jiménez y Lucila Monge Pizarro; el 3 de octubre posterior la Magistrada suplente Ana María Picado y el 4 de octubre siguiente el Magistrado suplente Jorge Araya García, formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

120.- En resolución de las 13 horas 55 minutos del 5 de octubre de 2018 la Presidencia de la Sala Constitucional -Magistrado Delgado Faith-, dispuso tener por separados del conocimiento de este proceso a los Magistrados y Magistradas suplentes Chacón Jiménez, Sánchez Navarro, Fernández Argüello, Monge Pizarro, Picado Brenes, Araya García y Garro Vargas, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

121.- Mediante oficio agregado al expediente electrónico el 12 de octubre de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6514 efectuado para la sustitución de los Magistrados y Magistradas suplentes Anamari Garro Vargas, Ileana Sánchez Navarro, Hubert Fernández Argüello, Mauricio Chacón Jiménez, Lucila Monge Pizarro, Ana María Picado Brenes y Jorge Araya García, manifestándose que debido a que la Sala originalmente había pedido 7 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que había disponibles, siendo seleccionados Alejandro Delgado Faith, Alicia Salas Torres y Rónald Salazar Murillo.

122.- El Magistrado suplente Rónald Salazar Murillo -el 16 de octubre de 2018- y la Magistrada Suplente Alicia Salas Torres -el 23 de octubre siguiente-, presentan inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal 18-007819-0007-CO.

123.- La Presidencia de la Sala Constitucional ejercida por el Magistrado Delgado Faith, en resolución de las 14 horas 10 minutos del 23 de octubre de 2018, tuvo por separados a los Magistrados suplentes Salazar Murillo y Salas Torres del conocimiento de este proceso, y dispuso remitir el expediente a la Presidencia de la Corte Suprema de Justicia para lo que corresponda.

124.- Mediante resolución de la Presidencia de la Sala Constitucional -Magistrado Delgado Faith- de las 14 horas 42 minutos del 23 de octubre de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado y al suplente José Paulino Hernández Gutiérrez, disponiéndose continuar con la tramitación del expediente.

125.- El 12 de febrero de 2019 se apersona el Magistrado Fernando Cruz Castro para manifestar que, en este expediente y en todos los demás que se han acumulado al principal número18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

126.- Mediante resolución de las 13 horas 29 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo- y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitado para conocer de este asunto al Magistrado Jorge Araya García, disponiéndose continuar con la tramitación del expediente.

127.- El 13 de febrero de 2019 el Magistrado suplente José Paulino Hernández presenta documento en el que manifiesta que se separa del conocimiento de este expediente debido a que la Asamblea Legislativa designó Magistrado titular en la plaza en la que se encontraba laborando y, por ello, argumenta que al cesar su nombramiento, ha desaparecido el motivo de su habilitación por causa sobreviniente, pidiendo que pasen los autos a la Presidencia de la Sala para lo que corresponda.

128.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Castillo Víquez- de las 8 horas 25 minutos del 13 de febrero de 2019, se tuvo por separado del conocimiento de este caso al Magistrado suplente José Paulino Hernández y se habilitó para conocerlo a la Magistrada suplente Marta Esquivel, disponiéndose continuar con la tramitación del expediente.

129.- Sobre la Acción de Inconstitucionalidad No. 18-014168-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-002488 de las 10 horas 05 minutos del 13 de febrero de 2019 se ordenó acumular la acción de inconstitucionalidad número18-014168-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

130.- Por escrito recibido en la Secretaría de la Sala a las 10 horas 37 minutos del 7 de septiembre de 2018, se presenta la acción de inconstitucionalidad número 18-014168-0007-CO interpuesta por Danilo Eduardo Ugalde Vargas, mayor, vecino de San José, abogado, con cédula de identidad N° 4-0143-0612, en su condición de Apoderado Especial Judicial de los siguientes jubilados y pensionados: 1) Eduardo Sancho González, cédula de identidad N° 1-0380-0073; 2) Rosa Iris Gamboa Monge, cédula de identidad N° 3-0120-0928; 3) Magda Lorena Pereira Villalobos, cédula de identidad N° 4-0105-0076; 4) Alejandro López Mc Adam, cédula de identidad N° 6- 0106-0565; 5) Lupita Chaves Cervantes, cédula de identidad N° 1-0596-0893; 6) Milena Conejo Aguilar, cédula de identidad N° 1-0624-0446; 7) Francisco Segura Montero, cédula de identidad N° 1-0546-0928; 8) Jorge Rojas Vargas, cédula de identidad N° 2-0310-0070; 9) Álvaro Fernández Silva con cédula de identidad N° 1-0288- 0592; 10) Luis Fernando Solano Carrera, cédula de identidad N° 1-0455-0325; 11) Alfredo Jones León, cédula de identidad N° 1-0467-0555; 12) Rodrigo Montenegro Trejos, cédula de identidad N° 4-0075-0723; 13) Alfonso Chaves Ramírez, cédula de identidad N° 1-0357-0392; 14) Anabelle León Feoli, cédula de identidad N° 1- 0466-0883; 15) Ana Virginia Calzada Miranda, cédula de identidad N° 1-0434-0791; 16) Eva María Camacho Vargas, cédula de identidad N° 4-0113-0745; 17) Rafael Ángel Sanabria Rojas, cédula de identidad N° 3-0249-0099; 18) Mario Alberto Houed Vega, cédula de identidad N° 1-0376-0780; 19) Rolando Vega Robert, cédula de identidad N° 1-0503-0990; 20) Adrián Vargas Benavides, cédula de identidad N° 4-0105-0889; y 21) Óscar Luis Fonseca Montoya, cédula de identidad N° 4-0080- 0442; contra los artículos 236 inciso 1) y penúltimo párrafo, artículo 236 bis y artículo 239, todos de la Ley 9544 que reforma la Ley Orgánica del Poder Judicial. Manifiestan que, en su criterio, esas disposiciones normativas son inconstitucionales porque, en el proceso de formación de esas normas, el legislador incurrió en graves violaciones que infringen, por la forma y por el fondo, la supremacía de las normas y principios constitucionales, el Derecho Internacional o Comunitario vigente en el país, su uniforme interpretación y aplicación, así como los derechos y libertades fundamentales consagrados en la Constitución Política y en los instrumentos internacionales de derechos humanos también vigentes en el país (articulo 1 de la Ley de la Jurisdicción Constitucional), concretamente los artículos 9, 18, 21, 28 párrafo segundo, 33, 34, 39, 40, 41, 45, 50, 51, 53, 56, 57, 73, 74, 121:13, 105, 119, 123, 124, 129, 154, 167 y 177 de la Constitución Política, así como también en contra de derechos constitucionales y convencionales de las personas mayores; violación a la protección de una remuneración digna contenida en la Declaración Universal de los Derechos Humanos, artículo 3; Convención Interamericana de los Derechos Humanos de las Personas Mayores artículos 3 incisos c), f) y g), 6, 7 y 17; Convención Americana sobre Derechos Humanos "Pacto de San José de Costa Rica", artículo 24; aplicación indebida de Convenios Internacionales sobre Seguridad Social; violación del contenido en los artículos del 25 al 30, 66 y 67 del Convenio No 102 de la Organización Internacional del Trabajo (OIT) denominado Convenio Relativo a la Norma Mínima de la Seguridad Social, así como también contra normas de la Ley de la Jurisdicción Constitucional. Manifiesta que la legitimación para accionar se fundamenta en Recursos de Amparo que se tramitan en la Sala Constitucional, bajo los siguientes números de expedientes: 1) Eduardo Sancho González, cédula de identidad N° 1-1038-0073, expediente N° 18-008528-0007-CO; 2) Rosa Iris Gamboa Monge, cédula de identidad N° 3-0120- 0928, expediente N° 18-008529-0007-CO; 3) Magda Pereira Villalobos, cédula de identidad N° 4-0105-0076, expediente N° 18-008530-0007-CO; 4) Alejandro Arturo López Me Adam, cédula N° 6-0106-0565, expediente N° 18-008531-0007-CO; 5) Liliana Lupita Chaves Cervantes, cédula de identidad N° 1-0596-0893, expediente N° 18-008532-0007-CO; 6) Milena Conejo Aguilar, cédula de identidad N° 1-0624- 0446, expediente N° 18-008533-0007-CO; 7) Francisco Antonio Segura Montero, cédula de identidad N° 1-0546-0928, expediente N° 18-008534-0007-CO; 8) Jorge Rojas Vargas, cédula de identidad N° 2-0310-0070, expediente N° 18-008535- 0007-CO; 9) Álvaro Fernández Silva, cédula de identidad N°1-0288-0592, expediente N° 18-008536-0007-CO; 10) Luis Fernando Solano Carrera, cédula de identidad N° 1-0455-0325, expediente N° 18-008537-0007-CO; 11) Alfredo Jones León, cédula de identidad N° 1-0467-0555, expediente N° 18-008538-0007-00; 12) Rodrigo Montenegro Trejos, cédula de identidad N° 4-0075-0723, expediente N° 18-008539-0007-CO; 13) Alfonso Chaves Ramírez, cédula de identidad N° 1- 0357-0392, expediente N° 18-008540-0007-00; 14) Anabelle León Feoli, cédula de identidad 1-0466-0883, expediente N° 18-008541-0007-CO; 15) Ana Virginia Calzada Miranda, cédula de identidad N° 1-0434-0791, expediente N° 18-008542- 0007-CO; 16) Eva María Camacho Vargas, cédula de identidad N° 4-0113-0745, expediente N° 18-008543-0007-CO; 17) Rafael Ángel Sanabria Rojas, cédula de identidad N° 3-0249-0099, expediente N° 18-008544-0007-CO; 18) Mario Alberto Houed Vega, cédula de identidad N° 1-0376-0780, expediente N° 18-008588-0007- CO; 19) Rolando Vega Robert, cédula de identidad N° 1-0503-0990, expediente N° 18-008616-0007-CO; 20) Adrián Vargas Benavides, cédula de identidad N° 4- 0105-0889, expediente N° 18-008617-0007-CO; y 21) Óscar Luis Fonseca Montoya, cédula de identidad N° 4-0080-0442, expediente N° 18-010902-0007-CO. Solicita que, con fundamento en lo dispuesto por el artículo 75 de la Ley de la Jurisdicción Constitucional, se tengan como asuntos pendientes los Recursos de Amparo que se tramitan bajo los expedientes indicados; expedientes en los cuales se ha invocado la inconstitucionalidad de las normas impugnadas como un medio razonable de proteger los derechos constitucionales de los accionantes. Manifiesta que las normas cuya constitucionalidad se cuestiona, producen efectos que lesionan -de manera directa e inmediata- los derechos fundamentales de cada uno de sus representados, por lo que, como medida cautelar, solicita la suspensión inmediata de los rebajos que se prevé que se harán en las jubilaciones o pensiones de sus representados; en consecuencia, solicita que se mantengan las condiciones imperantes antes de la entrada en vigencia de la Ley 9544, hasta tanto no se resuelva esta acción de inconstitucionalidad, con fundamento en lo dispuesto por los artículos 30 inciso a), 41, 81 y 82 de la Ley de la Jurisdicción Constitucional. Aduce que, lo anterior se fundamenta además en que el Consejo Superior del Poder Judicial, mediante el artículo VI de la Sesión 46-18 de 22 de mayo del 2018, ordenó la aplicación individual de los rebajos de aporte obrero (13%), comisión de gastos de administración (5/1000) y la contribución especial solidaria y redistributiva, conforme lo dispuso la Ley 9.544, por lo que a sus representados se les aplicaría tales deducciones. Manifiesta que, previo a hacer los planteamientos de inconstitucionalidad, es conveniente resaltar que el Poder Judicial, como Poder del Estado de Derecho, cuenta con independencia funcional, económica y administrativa; por su parte, la jurisprudencia de la Sala Constitucional ha declarado que Costa Rica es un Estado Social de Derecho y que su Gobierno es popular, representativo, participativo, alternativo y responsable, que lo ejerce el pueblo y tres poderes distintos e independientes entre sí. Añade que, como Poder de la República, de conformidad con las normas, principios y valores fundamentales de la Constitución, la función jurisdiccional le corresponde en forma exclusiva al Poder Judicial (ver sentencias número 1148-90 de las 17 horas del 21 de septiembre de 1990, número 6829-93 de las 8 horas 33 minutos del 24 de diciembre de 1993, número 5484-94 de las 18 horas 54 minutos del 21 de septiembre de 1994 y número 1018-97 de las 14 horas 45 minutos del 18 de febrero de 1997 de la Sala Constitucional). Por su parte, señala que la independencia económica de la Administración de Justicia, está garantizada en el artículo 177 de la Constitución Política al establecer en dicha norma que, el proyecto de presupuesto ordinario de la República, deberá asignar al Poder Judicial no menos de un 6% de los ingresos ordinarios calculados para el año económico, lo que incluye, entre otros rubros, el pago del salario para los servidores, y la contribución estatal y patronal para el pago de las jubilaciones o pensiones. Señala que la intención del legislador con la promulgación de esa norma en el año de 1957 -que establece un egreso constitucional atado para el Poder Judicial-, es garantizar, entre otras cosas, que los servidores actuales y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, dentro de lo que debe considerarse las jubilaciones o pensiones. Manifiesta que las motivaciones de la reforma al artículo 177 de la Constitución, dejó claro que la ratio legis era, por un lado ampliar la independencia funcional del Poder Judicial a nivel presupuestario, así como garantizar constitucionalmente que los sueldos, salarios, jubilaciones y pensiones del personal del Poder Judicial, se diferenciaran de los otros servidores públicos al dotarlos de recursos suficientes -al menos inicialmente- para mantener salarios dignos y pensiones y jubilaciones, financiados por la propia asignación presupuestaria que requería la Corte con la finalidad de que eso le permitiera: “...ejercer su cometido, libre de toda preocupación por su estabilidad económica”, en los términos que lo planteó el Presidente de la República en el año 1956. Indica que merece especial atención el hecho de que los proponentes y diputados que finalmente aprobaron la reforma al artículo 177 de la Constitución, tuvieron como visión que del presupuesto del 6% de los ingresos ordinarios de la República, se financiara el Fondo de Pensiones, sustituyendo con ello la obligación del Estado de aportar un 10% por ciento anual del total de sueldos y salarios pagados a su personal, como una garantía de independencia. Señala que la norma constitucional de comentario, tanto desde su formulación y nacimiento como en la actualidad, previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional, lo cual debe verse en toda su amplitud ya que, los salarios de los juzgadores y del personal auxiliar así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial; de allí que la independencia económica, personal, funcional, orgánica e institucional, sea esencial en un Estado Constitucional de Derecho. Argumentan que, así las cosas, una forma de garantizar la independencia del Poder Judicial, es dotarlo de los recursos suficientes para pagar todas las remuneraciones derivadas de las relaciones de servicio, así como también las jubilaciones y pensiones, acorde con sus funciones constitucionalmente asignadas, lo que lleva a la ineludible conclusión de que, a diferencia de los demás sistemas de pensiones generales, especiales o sustitutivos, el Fondo de Jubilaciones y Pensiones del Poder Judicial tiene una naturaleza constitucional derivada no sólo del artículo 73, sino reforzada por la reforma del párrafo 3 del artículo 177 Constitucional. Indica que, en este punto, se está de acuerdo con la sentencia N° 5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018 de la Sala Constitucional en cuanto señala:

“En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho, es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia." Manifiesta que, de conformidad con lo hasta aquí comentado, cualquier legislación que se tramite en torno a la creación, modificación, variación sustancial o supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien, que cree, modifique sustancialmente o elimine esas funciones, como se hizo en el proyecto de Ley N° 19.922, deberá cumplir con el trámite de consulta preceptiva del artículo 167 de la Constitución Política; requisito esencial para cumplir con el principio de rango constitucional de independencia económica, financiera y administrativa del Poder Judicial. Argumenta que, en abono a la existencia del principio constitucional de independencia y de un régimen especial de jubilaciones y pensiones, considera necesario citar la exposición de motivos que dio lugar a la promulgación de la Ley N°34 de 9 de junio de 1939, denominada Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, cuando el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que, por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar, -que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa- difícil situación de los funcionarios y empleados del Poder Judicial” (Los destacados son del memorial).

Manifiesta que, la cita anterior, posiblemente provenga de la misma fuente que inspiró la reforma del artículo 177 Constitucional, mediante la Ley N° 2122, la cual tuvo exactamente las mismas motivaciones que las expresadas por el Diputado Picado en relación con el tema de las especiales condiciones de responsabilidad del servidor judicial y la necesaria independencia que se viene desarrollando, en la sentencia N° 5857-2018 de las 15 horas 40 minutos del 12 de abril de 2018 de la Sala Constitucional, que en lo que interesa señala lo siguiente:

"No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que, si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican (los resaltados son del memorial).

Argumenta que, de acuerdo con la cita anterior, la independencia de aparato judicial es fundamental en un Estado Democrático, donde cada Poder Constitucional tiene especiales condiciones en relación con los otros Poderes del Estado, y en el caso del Poder Judicial, esa independencia se erige como una condición estructural derivada de la propia Constitución, pero también requiere independencia personal y funcional de la figura del administrador de justicia, en relación con esos otros Poderes del Estado, e incluso, frente a los jerarcas del Poder Judicial. Añade que, además, la independencia del funcionario judicial no solo tiene una cobertura constitucional (Art. 154) sino que dentro de los principios convencionales dicha función reviste de gran importancia y en ese sentido lo ha reconocido la Corte Interamericana de Derechos Humanos, en el Caso Poblete Vilches y Otros Vs. Chile en sentencia del 8 marzo del 2018, en la cual se indicó, en lo que interesa:

“195. La Corte resalta que el derecho a ser juzgado por un juez o tribunal imparcial es una garantía fundamental del debido proceso, debiéndose garantizar que el juez o tribunal en el ejercicio de su función como juzgador cuente con la mayor objetividad para enfrentar el juicio. Este Tribunal ha establecido que la imparcialidad exige que el juez que interviene en una contienda particular se aproxime a los hechos de la causa careciendo, de manera subjetiva, de todo prejuicio y, asimismo, ofreciendo garantías suficientes de índole objetiva que inspiren la confianza necesaria a las partes en el caso, así como a los ciudadanos en una sociedad democrática. La imparcialidad del tribunal implica que sus integrantes no tengan un interés directo, una posición tomada, una preferencia por alguna de las partes y que no se encuentren involucrados en la controversia. Ello puesto que el juez debe aparecer como actuando sin estar sujeto a influencia, aliciente, presión, amenaza o intromisión, directa o indirecta, sino única y exclusivamente conforme a -y movido por- el Derecho." Indica que ello es así, por cuanto, la Convención Americana de Derechos Humanos, dispone en su numeral 8.1:

“Artículo 8. Garantías Judiciales.

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, fiscal o de cualquier otro carácter” (los destacados son del memorial).

Agrega que, en concordancia con la Convención Americana de Derechos Humanos, el Pacto Internacional de Derechos Civiles y Políticos indica en su Artículo 14):

"1. Todas las personas son iguales ante los tribunales y cortes de justicia. Toda persona tendrá derecho a ser oída públicamente y con las debidas garantías por un tribunal competente, independiente e imparcial. establecido por la ley, en la substanciación de cualquier acusación de carácter penal formulada contra ella o para la determinación de sus derechos y obligaciones de carácter civil…” (los resaltados son del memorial).

Argumenta que, todo lo dicho, tiene sustento además en diversos instrumentos internacionales de derechos humanos; y así, por ejemplo, en 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 de Naciones Unidas en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dispuso:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas” (los destacados son del memorial).

Aduce que, de esta forma, la Organización de las Naciones Unidas recomienda a todos los países del mundo asociados a ella que las normas jurídicas deben garantizar a los jueces, remuneraciones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad, dificultad e importancia para la democracia, lo que debe entenderse que cubre toda la organización de la administración de justicia tanto en lo jurisdiccional como en lo administrativo. Añade que, de igual modo, en la “Carta Europea sobre el Estatuto de los Jueces", adoptada en Estrasburgo entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se estableció lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del /de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resoluciones y en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al /a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a titulo profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial” (los destacados son del memorial).

Indica que el citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente durante su actividad laboral y, hasta en su pasividad, donde se propone retribuciones lo más aproximadas a su último salario, lo que es una garantía a favor de la ciudadanía, de modo tal que la adecuada remuneración y pensión de los servidores actuales y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad. Argumenta que también, 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, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“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” (los destacados son del memorial).

Y, en el artículo 33, se dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada” (los destacados son del memorial).

Señala que tenerse presente que, la jubilación y la pensión, en el caso de los funcionarios judiciales, forma parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidas, en su resolución N° 2200 A (XXI) de 16 de diciembre de 1966; regulaciones que también fueron acogidas en 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, y que con respecto al tema de los salarios de los jueces, recomendó:

“...es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto el “aumento de los salarios en función del coste de vida”” (los destacados son del memorial).

Añade que los criterios de protección de los salarios y pensiones de los funcionarios judiciales que se hacen en estas recomendaciones, resultan ser de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial; regulaciones que no sólo se han dado en el ámbito internacional, sino que también ha sido objeto de reglamentación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas. Indica que, sobre el particular, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas, como principios derivados de los Artículos 9, 154 y 177 constitucionales. Aduce que en el artículo 24 de ese Estatuto, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias…”, lo cual afirma que está íntimamente relacionado con lo dispuesto en el artículo 177 de la Constitución Política, en cuanto a la asignación constitucional de los recursos necesarios en los presupuestos de la República, para garantizar la independencia económica del Poder Judicial. Argumenta que, asimismo, el artículo 49 del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez:

"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" (los destacados son del memorial).

Señala que el respeto a la independencia judicial, principio democrático, equilibrio de Poderes, que es uno de los fines que persiguen los artículos 9, 154 y 167 de la Carta Magna, también fue objeto de regulación expresa en el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, artículo 20, al disponer que:

“Los otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”.

Señala que, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible por constituir esto una flagrante violación al principio de independencia judicial, salvo que se cumplan los procedimientos, los que se constituyen como verdaderos contra pesos para que el Legislativo no realice cambios en las normas que rigen la Administración de Justicia. Indica que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta a la de los otros Poderes del Estado ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado, siendo esto una consecuencia de que sea el Poder Judicial el que administra justicia, y por ende, la justicia debe ser objetiva, imparcial y libre de cualquier presión externa. Sobre el particular, argumenta que la presión económica que se deriva de la Ley 9544 que se impugna, resulta inadecuada porque desarticula el principio del equilibrio de los poderes públicos con un resultado nocivo para la independencia real y efectiva del Poder Judicial. Manifiesta que es importante destacar la reseña histórica sobre la creación del Fondo de Jubilaciones y Pensiones del Poder Judicial que se incluyó en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 mediante la cual se evacuó la consulta facultativa de constitucionalidad del proyecto de ley 19.922, siendo que han pasado más de 79 años desde su creación, cuenta con un patrimonio que, al 30 de junio de 2018, era de ¢515.690.192,035 millones de colones, así como con 3193 jubilados, 747 pensionados y 13367 servidores activos.

• A)En lo que a la Inconstitucionalidad por la forma se refiere, aduce que se acusa la violación a los siguientes principios y normas constitucionales: principio de independencia funcional y económico del Poder Judicial que se deriva de los artículos 9,49,73,154,167 y 177 de la Constitución Política; principio de independencia de poderes y democrático a partir de los artículos 1, 9, 105, 119, 123, 124, 154 y 167 de la Constitución Política; principio independencia de la organización o funcionamiento del Poder Judicial que surge de los artículos 9, 154, 167 y 177 de la Constitución Política; principio de publicidad deducido a partir de artículos 105, 123 y 124 de la Constitución Política; principio de razonabilidad técnica que surge de los artículos 39, 41 y 74 de la Constitución Política; y violación a los límites de la competencia de la Asamblea Legislativa para establecer contribuciones especiales, derivado del artículo 121.13 de la Constitución Política. Indica que, de seguido, presenta las consideraciones que le llevan a establecer que, en el proceso de formación de la Ley 9.544, se incurrió en vicios de forma que atentan contra la Constitución Política:
• a)Violación a los Principios de Independencia Funcional y Económica del Poder Judicial: derivado de los artículos 9, 154, 167 y 177 de la Constitución Política: argumenta que, en su criterio, un ejemplo claro y evidente de intromisión en la independencia del Poder Judicial por parte de la Asamblea Legislativa, lo constituye la creación de la Junta Administrativa del Fondo, establecida en los artículos 239 y 240 de la Ley 9544. Señala que en esos numerales se crea un órgano extraño a la estructura del Poder Judicial, afectando la organización o funcionamiento de este Poder, alterando las competencias y funciones de su máxima autoridad -como lo es la Corte Plena-, y al que se le encarga la administración del Fondo de Jubilaciones y Pensiones, derogándose los incisos 12 al 15 del artículo 81 de la Ley Orgánica del Poder Judicial. Manifiesta que con estas disposiciones se transfieren competencias de la Corte Plena, del Consejo Superior y demás instancias administrativas del Poder Judicial, a la Junta Administrativa del Fondo que se crea en la Ley 9544, otorgándosele a esta independencia funcional, técnica y administrativa, pero además se le confiere personería jurídica instrumental y se le encarga la Administración del Fondo de Jubilaciones y Pensiones. Añade que, con la aprobación de la Ley 9544, el Poder Legislativo modificó radicalmente- a pesar del criterio negativo de la Corte Suprema de Justicia-, las funciones a cargo de la Corte Plena y del Consejo Superior contenidas en la Ley Orgánica vigente antes de la reforma, por lo que se puede concluir que hubo una lesión directa a la independencia, constitucionalmente otorgada por los artículos 9, 11, 152, 154, 167 y 177 de la Constitución Política, al Poder Judicial. Argumenta que la Ley N° 9.544 incluyó en su contenido, temas reservados y propios de la organización o funcionamiento del Poder Judicial, lo que implica una grave intromisión en las competencias del órgano de máxima jerarquía del Poder Judicial (art. 152 constitucional), con franca violación de la consulta obligatoria preceptuada en el artículo 167 de la Constitución Política. Afirma que la Asamblea Legislativa desatendió el criterio negativo de la Corte Suprema de Justicia cuando se le consultó sobre el dictamen de la Comisión Especial, sin las formalidades de una consulta perceptiva, ello a pesar de que, por la naturaleza del proyecto de ley y la invasión de funciones del Poder Judicial -equivalente a una intervención policial-, el órgano legislativo estaba obligado a consultar -necesariamente- el proyecto de reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial N° 19.922, en los términos dispuestos en el artículo 167 de la Constitución Política, ya que las disposiciones allí contenidas, modificaban sustancialmente la organización o funcionamiento del Poder Judicial. Argumenta que la intromisión de la reforma que se impugna en la organización o funcionamiento del Poder Judicial es tan evidente, que le elimina al Consejo Superior la competencia que le otorgaba la Ley Orgánica para administrar el Fondo, precisamente de acuerdo con las políticas de inversión establecidas por la propia Corte Plena, tal y como estaba contemplado en el artículo 81, inciso 12 de esa Ley Orgánica, hoy ilegítimamente derogado. Acusa que, en concreto, en el proceso de formación de la Ley 9.544, se incurrió en violaciones a la Constitución Política:
• 1)se quebrantó la independencia del Poder Judicial pese a que el Constituyente Originario dio muestras claras de su intención de garantizarla para los Jueces de la República y de los auxiliares de justicia, tanto a nivel presupuestario, de organización o funcionamiento, al promulgar normas como los artículos 9, 154, 167 y 177 de la Constitución Política, que fueron desconocidas por la Asamblea Legislativa.
• 2)se quebranta la independencia económica del Poder Judicial garantizada en el artículo 177 de la Constitución Política en cuanto dispone que, del presupuesto ordinario de la República, se deberá asignar al Poder Judicial, no menos de un 6% de los ingresos ordinarios calculados para el año económico, lo que incluye el pago del salario para los trabajadores activos, y de las jubilaciones y/o pensiones para los pasivos.
• 3)en abono a lo indicado en la conclusión anterior, considera que el sistema de remuneración para empleados judiciales activos y jubilados, tiene amparo constitucional en las disposiciones del artículo 177 de la Constitución Política y, en consecuencia, constituyen elementos esenciales de la organización o funcionamiento del Poder Judicial, lo que implica que el proyecto de ley que se tramitó bajo el expediente N°19.922, tendiente a modificar las prestaciones de los jubilados y pensionados del Poder Judicial, así como el perfil de beneficios de los empleados activos, mandatoriamente debió ser consultado preceptivamente a la Corte Plena, por el mandato constitucional establecido en el artículo 167 de la Constitución.
• 4)el Fondo de Jubilaciones y Pensiones del Poder Judicial tiene rango constitucional dado que el propio legislador quiso que los integrantes de ese Poder tuvieran un salario y una pensión o jubilación acorde con las responsabilidades de las funciones que desempeñaban, argumentando que, además, el Fondo existe desde antes de la promulgación de la Constitución Política de 1949 pues se creó mediante Ley N° 34 del 9 de junio de 1939, que adicionó a la Ley Orgánica del Poder Judicial vigente en ese momento el sistema de jubilaciones y pensiones para los funcionarios y servidores judiciales, considerando que, por esa razón, la modificación que se quiera hacer del Fondo, requiere del cumplimiento de un proceso reglado constitucionalmente en el cual, entre otros, se ordena una consulta preceptiva conforme al numeral 167 de la Constitución Política, el cual afirma que no se observó en el caso concreto.
• b)Violación al artículo 167 de la Constitución Política por omitirse la Consulta Preceptiva del Proyecto de Ley N°19.922 a la Corte Suprema de Justicia: Indica que, entre los temas más controvertidos en el proceso de reforma del Título IX de la Ley Orgánica del Poder Judicial por medio del proyecto de ley del expediente legislativo No 19.922, se encuentra el definir si debió ser consultado o no a la Corte Plena, en virtud de lo dispuesto por el artículo 167 de la Constitución Política. Argumenta que, para intentar dar una explicación coherente, se han desarrollado por parte de la Asamblea Legislativa -y otros actores en la formación de la ley-, teorías a favor de la consulta preceptiva y otras en sentido contrario, todo en función de la valoración previa que se hace del alcance de los términos constitucionales de “organización o funcionamiento”; sin embargo, aduce que desde ahora deja zanjada esa disyuntiva y afirma que, debido al contenido de la ley cuya constitucionalidad se cuestiona, por ser una modificación a la Ley Orgánica del Poder Judicial y en virtud del principio de independencia judicial consagrado constitucionalmente, el proyecto de ley debió consultarse a la Corte Plena, cumpliendo el rito que impone el canon 167 de la Constitución Política. Añade que la Asamblea Legislativa y, en particular, la Comisión Especial designada para tramitar dicho proyecto de ley, estaban obligados por disposición expresa y preceptiva del artículo 167 constitucional, a consultar el proyecto de ley antes de ser dictaminado y la votación requerida para separarse del criterio de la Corte Suprema de Justicia era de una mayoría calificada de todos los diputados. No obstante lo anterior, argumenta que, en el caso concreto, esas situaciones no ocurrieron en la forma ordenada por la Constitución Política y, en consecuencia, la reforma promulgada que se impugna, resulta inconstitucional. Recuerda que el artículo 167 de la Constitución Política señala expresamente, lo siguiente:

“Para la discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial, deberá la Asamblea Legislativa consultar a la Corte Suprema de Justicia; para apartarse del criterio de ésta, se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea” Resalta que la norma citada es clara al indicar que se requiere efectuar la consulta obligada a la Corte Suprema de Justicia para la discusión y aprobación de proyectos de ley cuando éstos afecten la organización, así como también que, para apartarse del criterio vertido por la Corte Suprema de Justicia, se requiere el voto de las dos terceras partes del total de miembros de la Asamblea Legislativa; lo anterior, afirma, en virtud del principio de independencia de poderes que rige en el país, siendo que, por ello, en cuanto a la organización o funcionamiento del Poder Judicial, está incluida la facultad constitucional de autorregularse, por la autonomía que deriva de los artículos 9 y 154 constitucionales, de manera que si la organización interna jurisdiccional y administrativa han sido reguladas por leyes que responden a la iniciativa del propio Poder Judicial, las modificaciones a ese orden interno que está protegido por la División y la Independencia de los Poderes de la República, deben ser consultados para que no exista intromisión indebida que infrinja la Constitución Política. Añade que, en relación con el alcance de los términos que contiene el artículo 167 constitucional, se debe indicar que la interpretación sesgada de la sentencia N°5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018 que analizó la Consulta Legislativa Facultativa No. 17-017148-0007-CO, merece un análisis aparte para lograr ubicar los alcances que la propia Sala Constitucional le ha dado a los términos “organización o funcionamiento”, lo que no tendría sentido si en su interpretación se desvinculan de los principios de rango constitucional de independencia y separación de poderes, que recogen los artículos 9, 154, 167 y 177 de la Constitución Política.

• c)Alcance de los términos “organización o funcionamiento” y la violación al artículo 167 de la Constitución Política: Indica que la Sala Constitucional, a partir de diversas resoluciones, ha venido interpretando los términos “organización o funcionamiento" en función de cada una de las particulares situaciones jurídicas que se han sometido a su conocimiento, tal es el caso de las sentencias 1995-3063 de las 15 horas 30 minutos del 13 de junio de 1995 y 2002-4258 de las 9 horas 40 minutos del 10 de mayo de 2002, que se citan en la sentencia N° 5758-18 citada mediante el cual se evacua la Consulta de Constitucionalidad del Proyecto N° 19.922. De acuerdo con la lectura de dichas sentencias concluye que:
• 1)se puede excluir la materia concerniente al Fondo de la consulta obligatoria a la Corte Suprema de Justicia, cuando lo consultado se refiera a otros regímenes de pensiones y jubilaciones especiales o generales que no afecten al colectivo cubierto por el Fondo de Jubilaciones y Pensiones del Poder Judicial, por ello la afectación estará determinada por el nivel de impacto del tema sobre la organización o funcionamiento.
• 2)no se debe confundir la función jurisdiccional en sentido amplio, con la función estrictamente administrativa de administración de justicia; la función jurisdiccional es una función especial y diferente a la función administrativa de otros funcionarios públicos, y una cosa es la Administración de Justicia y, otra muy distinta, la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa, aún cuando los jueces y los auxiliares judiciales sean también funcionarios públicos.
• 3)finalmente considera importante indicar que la Ley Marco de Pensiones no pudo tener ningún impacto sobre el Poder Judicial ya que, expresamente, el ordinal 2) de la Ley N° 7302 indica que: “Esta ley no será aplicable a las personas cubiertas por el Régimen de Invalidez, Vejez y Muerte, que administra la Caja Costarricense de Seguro Social ni a los regímenes de Pensiones y Jubilaciones del Magisterio Nacional ni al Poder Judicial..." (los destacados son del memorial).

Aduce que, si se buscan antecedentes de la Sala Constitucional sobre los alcances del artículo 167 constitucional, se debe recurrir a sentencias donde se haya analizado -en forma concreta- los términos “organización o funcionamiento”, al amparo del principio que los nutre, como lo es la independencia y separación de poderes. Señala que, en esta búsqueda, ubicó la sentencia número 2008-5179 de las 11:00 horas del 04 de abril del 2008, citada por la sentencia 5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018, en la que, considera, se aborda integralmente el alcance de ambos términos en función del principio de independencia y división de poderes y funciones, al indicar en forma expresa:

"... que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas..." (los destacados son del memorial).

Considera que, lo dicho por la Sala, coincide plenamente con el alcance y contenido del artículo 167 constitucional en el tanto, se preservan los principios esenciales de independencia y división de poderes cuando se obliga al Poder Legislativo a realizar consultas de los proyectos de ley que afecten su organización o funcionamiento. Añade que la sentencia N° 2008-5179 de las 11:00 horas del 04 de abril del 2008 de la Sala Constitucional, explica los supuestos de consulta obligatoria de una manera precisa, al resaltar que el Poder Judicial goza de independencia funcional, administrativa y económica otorgada por Constitución Política, según lo dispuesto en los artículos 9 y 177. Estima que el proyecto de ley No. 19.922 en el que se tramitaron las reformas al Título IX del Fondo de Jubilaciones y Pensiones del Poder Judicial, debió consultarse a la Corte Suprema de Justicia formalmente, tal y como se desprende de la lectura del texto del artículo 167 constitucional, esto por cuanto ese proyecto contiene normas que tienen relación directa con la organización o funcionamiento del Poder Judicial, toda vez que le eliminó funciones a la Corte Plena, al Consejo Superior, a la Dirección Ejecutiva, a la Auditoría, la Dirección de Gestión Humana y al Departamento Financiero Contable, todos del Poder Judicial, para crear una Junta Administradora del Fondo como un órgano del Poder Judicial -sobre el cual no tiene ninguna competencia la Corte Plena como instancia superior de este Poder-, lo cual a su vez estima que crea un conflicto de índole constitucional porque se invaden las competencias y funciones que la Constitución Política le confiere al Poder Judicial, en virtud de los principios -de tal rango- de la división de poderes, de la independencia de los poderes y del principio democrático. Indica que el texto correcto de la Constitución Política es “organización o funcionamiento”; la letra “o” es una conjunción disyuntiva, siendo que, juntos los dos vocablos, forman una entidad que se constituye en un sistema técnico de gestión institucional, en el que se establece una estructura orgánica con sus competencias y las relaciones de coordinación y control entre los órganos (organización), que se complementa con el ámbito del ejercicio de las funciones y competencias a través de los órganos con alto grado de autonomía. Así dice que, para el caso del artículo 167, los términos “organización o funcionamiento” son alternativos, lo que denota equivalencia, significando que los dos conceptos se refieren a una misma cosa por ser parte integrante de una sola entidad y por ello estima que es un error creer que son dos cosas diferentes con un trato discriminatorio. Agrega que, en la sentencia N° 2008-5179 de las 11:00 horas del 04 de abril del 2008, el Tribunal Constitucional hizo un análisis de mayor alcance de los términos “organización o funcionamiento” que emplea el artículo 167 de la Constitución Política para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa, deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia; por ello allí claramente se determinó que, en los casos donde haya variación o supresión de órganos jurisdiccionales o administrativos -los cuales normalmente están regulados en su Ley Orgánica, leyes especiales o leyes codificadas- la consulta es obligatoria, como un medio para mantener el principio constitucional de equilibrio de poderes entre el Judicial y el Legislativo. Indica que, en su criterio, así se entiende de la relacionada sentencia cuando se expresa, lo siguiente:

“...cabe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9 de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el provecto no versa sobre organización v funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial” (los destacados son del memorial).

En este sentido, considera que no hay la menor duda de que la Sala Constitucional ha entendido que, lo relativo a la organización administrativa del Poder Judicial, y no sólo lo concerniente a la afectación -directa o indirecta- de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167 de la Constitución Política, por la integración del principio constitucional de independencia a dichos conceptos. Aduce que dicha forma lógica de interpretación tiene sentido, no sólo por ser una derivación natural del artículo 167, sino también de otras normas constitucionales como lo son los numerales 9, 154 y 177 de la Constitución Política. Aduce que la interpretación anterior no podría ser de otra manera ya que, la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto-, repercute en el servicio de Administración de Justicia que presta y en la independencia que, constitucionalmente, se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia. Agrega que, respecto del tema de la independencia funcional u organizativa del Poder Judicial, la Sentencia N°5857-2018 de las 15 horas 40 minutos del 12 de abril de 2018 de la Sala, es conteste con el contenido de la sentencia N° 2008-5179 de las 11:00 horas del 04 de abril del 2008 que señaló acertadamente, en lo que interesa, lo siguiente:

“En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa, aun cuando los jueces y los auxiliares judiciales sean también funcionarios públicos. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no pude haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios” (los destacados son del memorial).

Argumenta que, de acuerdo con el fallo anteriormente transcrito, es claro, contundente y preciso que, cualquier disposición que afecte el funcionamiento del Poder Judicial -entendido éste como el mandato de administrar justicia ya sea por los jueces o los órganos que los auxilian- se considera parte de la organización o funcionamiento de la competencia exclusiva que le ha otorgado la Constitución Política en los artículos 9 y 154, por lo que, cualquier reforma que pudiera afectar la independencia y separación de poderes, presente o futura de los jueces actuales, futuros o ya pensionados, debe ser consultada obligatoriamente a la Corte Plena, con la finalidad de garantizar y cumplir con un principio constitucional de equilibrio racional de poderes -entre el Legislativo y el Judicial-. Añade que, aunque resulta de perogrullo, debe tenerse presente que, tanto el Poder Judicial como sus servidores, por la especial labor que realizan, deben estar revestidos en forma permanente de independencia desde su contratación como empleados activos hasta el momento de la baja laboral -como pensionados o jubilados-, por lo que cualquier cambio a la Ley Orgánica del Poder Judicial que recoge las normas que garantizan dicha independencia, debe ser consultado por la Asamblea Legislativa, en forma previa, y de acuerdo con los procedimientos de formación de leyes que se derivan de los principios constitucionales y supra constitucionales tales como el principio democrático, de publicidad en la formación de las leyes, derecho de enmienda e independencia de Poderes. Indica que, conteste con el postulado anterior, en la sentencia N° 5857-2018 de las 15 horas 40 minutos del 12 de abril de 2018, de manera precisa y acertada se indicó que:

"...Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema objeto de esta consulta, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho, es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano” (el destacado es del memorial).

Argumenta que, en efecto, debe partirse de que el derecho de jubilación o pensión, así como el salario, en el caso de los trabajadores activos, tienen rango constitucional como derecho fundamental e incluso como derecho humano, de acuerdo con la sentencia N°1147-90 de las 16 horas del 21 de septiembre de 1990 de la misma Sala Constitucional, que declaró que el derecho a la pensión o jubilación es un derecho constitucional, fundamental y humano, que tiene una protección especial por las normas constitucionales y de los Convenios Internacionales, lo que en el caso del Poder Judicial, se encuentra especialmente agravado en cuanto a su modificación, por el hecho de existir un principio adicional denominado independencia. Añade que, en resumen, de acuerdo con los propios antecedentes, en la sentencia N° 1995-3063 de las 15 horas 30 minutos del 13 de junio de 1995, la Sala resolvió que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo por la sencilla razón de que, dicho proyecto, no afectaba a los servidores judiciales al excluirlos expresamente el texto de la Ley N° 7302; y en el caso de la sentencia N° 2002-4258 de las 9 horas 40 minutos del 10 de mayo de 2002, la Sala descartó la violación al artículo 167 de la Constitución Política por el hecho de que, la reforma al Régimen de Jubilaciones y Pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, y solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. Agrega que, finalmente, en la sentencia 2008-5179 de las 11:00 horas del 04 de abril del 2008 -a diferencia de las dos sentencias anteriores-, no excluyó la materia relativa al Fondo de la Consulta Preceptiva a la Corte Suprema de Justicia per se, sino que, esa condición de exclusión de consulta se mantendrá cuando el proyecto de ley no tenga relación directa con la “organización o funcionamiento” del Poder Judicial. Afirma que, todo proyecto de reforma de ley que afecte el Fondo y, por ende, a sus servidores judiciales activos, jubilados o pensionados, encuadra dentro de la definición de los conceptos “organización o funcionamiento del Poder Judicial” del artículo 167 Constitucional, por lo que considera que, en aplicación del principio constitucional de independencia y equilibrio de poderes, la Asamblea Legislativa debió consultar obligatoriamente el contenido de cualquier proyecto, como el relacionado con el N° 19.922 que reformó el Título IX de la Ley Orgánica del Poder Judicial, aquí impugnado.

• d)Violación al principio democrático, artículos 1, 9, 105, 119, 123 y 124 de la Constitución Política y obligación de la Asamblea Legislativa de consultar el proyecto de ley N ° 19.922 a la Corte Suprema de Justicia: indica que, como ya ha quedado dicho, en su criterio, en el caso del Poder Judicial, la consulta preceptiva que se encuentra prevista en el artículo 167 de la Constitución Política, obliga a la Asamblea Legislativa a requerir el criterio de este supremo Poder cuando se está discutiendo un proyecto de ley que afecte la organización o el funcionamiento del Poder Judicial, y agrega, “o su independencia constitucional” como indica que lo señaló supra al afirmar que los cambios al Título IX de la Ley Orgánica del Poder Judicial que se derivaron de la reforma, afectaron la independencia y la organización o funcionamiento del Poder Judicial, quebrantándose con ello el principio supraconstitucional denominado “principio democrático”, el cual pretende mantener un justo equilibrio entre los poderes del Estado y garantizar el derecho de enmienda de la normativa que afecte aquellas instituciones que, constitucionalmente, tienen una protección especial, como el caso del Poder Judicial. Añade que el principio democrático fue desarrollado por el legislador en el artículo 157 del Reglamento disponiendo que, cuando en la discusión de un proyecto se determine que debe ser consultado al Poder Judicial, y no lo hubiera hecho la Comisión, se suspenderá el conocimiento del proyecto, procediéndose a hacer la consulta correspondiente. Señala que el principio democrático se define como la exigencia de la sujeción de los actos de los gobernantes a la supremacía de la Constitución y, en consecuencia, limita a los legisladores en cuanto a su discrecionalidad legislativa. Aduce que, al respecto, la Sala Constitucional en la sentencia número 2006-003671 de las 14 horas 30 minutos del 22 de marzo de 2006, aplica de manera efectiva el contenido de dicho principio al resolver que:

“… Hasta este punto, sin embargo, considera la Sala que la discusión de este proyecto estuvo ayuna de la suficiente oportunidad de reflexión y debate, por lo que contraviene rasgos esenciales del principio democrático… procedimiento impidió que se diera un debate efectivo y acorde con el principio democrático” Señala que el procedimiento parlamentario es una garantía, no tiene una finalidad en sí misma, sino que cumple una función instrumental y de garantía. Agrega que, una vez planteada la consulta, si transcurridos 8 días hábiles no se recibiere respuesta, se tendrá por entendido que el organismo consultado, no tiene objeción que hacer al proyecto, y caso de que el organismo consultado, hiciera observaciones al proyecto, éste pasará automáticamente a la Comisión para su respectivo trámite; respecto de las Consultas Preceptivas, la Constitución Política exige votaciones calificadas cuando se acuerde apartarse del criterio negativo del organismo consultado. Indica que, en el caso concreto, habiendo señalado la Corte Plena que el proyecto de ley N° 19.922 afectaba la organización o funcionamiento e independencia del Poder Judicial, resulta evidente que el proyecto de ley debía ser consultado en forma preceptiva, por lo que una vez hecha dicha solicitud de criterio de la Corte Plena y haberse respondido de manera negativa, para la aprobación del proyecto se requerían 38 votos. Señala que, en el caso bajo estudio, en la Sesión Ordinaria del Plenario Legislativo N°163, realizada el 19 de abril del 2018, cuando se le dio Segundo Debate al proyecto de ley, éste fue aprobado por una escuálida votación de 34 votos a favor y 9 en contra, incumpliéndose, en consecuencia, el mandato constitucional. Añade que, otro aspecto esencial en la formación de las leyes lo constituye la forma y el momento en que deben realizarse las consultas institucionales cuando, por mandato legislativo, se debe cumplir este requisito que no es meramente formal sino sustancial y de validez para que la nueva legislación que está en formación, pueda desplegar sus efectos en concordancia con la Constitución Política. Añade que, pese a la existencia de una obligación constitucional de consulta a la Corte Plena, lo cierto es que el texto finalmente consultado y el tiempo en que se hizo la consulta (después de aprobado un dictamen por la Comisión Especial), quebrantaron también el principio de democrático por cuanto, el proyecto consultado a la Corte Plena, fue publicado en el Diario Oficial con posterioridad y ni siquiera fue el texto del proyecto de ley, sino un dictamen afirmativo de la Comisión Especial, el cual sufrió grandes modificaciones antes de ser aprobado en primer y segundo debate. Manifiesta que la Comisión Especial que tramitó el Proyecto de Ley N° 19.922, solicitó un criterio a la Corte Suprema de Justicia sobre el proyecto de reforma indicado, mediante el oficio AL-20035-OFI-0043-2017 del 31 de julio de 2017, pero dicha consulta fue sobre un dictamen afirmativo de mayoría, diferente al proyecto que finalmente se aprobó en Primer Debate en la sesión extraordinaria del Plenario Legislativo N°14 del 30 de octubre 2017. Recuerda que el artículo 126 del Reglamento de la Asamblea Legislativa, dispone:

"Cuando en el seno de una comisión se discuta un proyecto o se apruebe una moción que, de acuerdo con los artículos 88, 97, 167 y 190 de la Constitución Política, deban ser consultados la consulta respectiva la efectuará el presidente. Las consultas de las comisiones se considerarán como hechas por la propia Asamblea y, en lo pertinente, se aplicará lo dispuesto en el artículo 157 de este Reglamento" (el destacado es del memorial).

Manifiesta que, de acuerdo con lo anterior, la Presidencia de la Comisión Especial debió ordenar la Consulta Preceptiva a la Corte Suprema de Justicia e indicar que se formulaba al amparo del artículo 167 constitucional y de conformidad con lo indicado por los artículos 126 y 157 del Reglamento; sin embargo, esa consulta de índole constitucional, no se formuló. Indica que, mediante el oficio AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Comisión Especial formuló una consulta institucional, sin formalidad alguna, sobre el dictamen afirmativo de mayoría, pero ese procedimiento no puede suplir la Consulta Preceptiva Constitucional. Manifiesta que, ante la consulta institucional que formuló la Asamblea Legislativa, en la respuesta que brinda la Secretaria General de la Corte Suprema de Justicia mediante el oficio N° SP 252-17 de 10 de agosto de 2017, se estableció en forma clara que el dictamen afirmativo de mayoría que reformaba la Ley Orgánica del Poder Judicial, sí contenía normas que afectaban la organización o funcionamiento de ese Poder, por lo que se rendía un informe negativo. Indica que, en sus conclusiones y en lo que interesa, se indicó:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aún y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundarla en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contarla con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral. Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que, durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalarla incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial” (los destacados son del memorial).

Considera que se confirman violaciones en el procedimiento de formación de la Ley 9.544 cuando se confronta lo ocurrido en el trámite del expediente legislativo N°19.922 con las actas de la Corte Plena, encontrándose la siguiente relación de hechos:

• 1)por oficio N° AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa realizó una consulta institucional al Poder Judicial, no preceptiva, con respecto al dictamen afirmativo de mayoría de la Comisión Especial del proyecto que reforma al régimen de jubilaciones y pensiones del Poder Judicial.
• 2)la consulta del dictamen afirmativo de la Comisión Especial no cumplía con el requisito constitucional pues no se consultó un proyecto de ley en formación en su versión final, sino un simple dictamen afirmativo de mayoría.
• 3)en respuesta a la consulta, la Corte Suprema de Justicia emitió su criterio negativo mediante el oficio N° SP-253-17 del 10 de agosto de 2017, indicando que no estaba de acuerdo con el proyecto de ley consultado por cuanto afectaba la organización o funcionamiento del Poder Judicial.
• 4)en el Acta de Corte Plena N° 26-17 del 7 de agosto de 2017, Artículo N° XXX, en respuesta a la consulta institucional, se tomó el siguiente acuerdo que textualmente indica: “Se acordó: 1.) Tener por hecha la exposición de la Dirección Jurídica. 2.) Acoger el informe sobre el proyecto de ley consultado y hacerlo de conocimiento del Plenario Legislativo y de la Comisión Especial Encargada de Conocer y Dictaminar el Proyecto de Ley denominado: 'Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo N° 19.922', en adelante denominado: Reforma del Título IX de la Ley Orgánica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales de la Asamblea Legislativa, en respuesta a la consulta formulada, con la indicación expresa de que esta Corte emite criterio negativo y se opone al proyecto de ley consultado, pues incide en la organización, estructura y funcionamiento del Poder Judicial. 3.) Tener por hechas las manifestaciones de las Magistradas Rojas, Arias y el Magistrado Gamboa” (los resaltados son del memorial).
• 5)con posterioridad a la consulta institucional realizada al Poder Judicial del proyecto de ley dictaminado del 27 de julio de 2017, se realiza la publicación de éste en el Alcance N°189 de 4 de agosto de 2017, lo cual es absurdo si se considera que la finalidad de la publicación es publicitar un proyecto en formación, para que sea conocido por terceros que puedan cooperar con el proceso de formación de la Ley; publicar un dictamen afirmativo de una comisión, no es lo mismo que publicar un proyecto que admite enmiendas y cambios antes de ser aprobado por una comisión, sobre todo cuando el trámite siguiente se hará por un procedimiento abreviado al amparo del artículo 208 bis) del Reglamento, que fue acordado por el Plenario Legislativo, en la sesión ordinaria N°37 de 30 junio de 2016.
• 6)informa a la Sala que, el dictamen afirmativo de mayoría de fecha 27 de julio de 2017 consultado a la Corte Plena, no fue el texto exacto, votado en Primer Debate de la sesión extraordinaria del Plenario Legislativo N°14 del 30 de octubre 2017, ya que se observan cambios a lo largo de todo el articulado introducidos entre el 27 de julio y el 30 de octubre ambos del 2017, lo que obligaba a la Asamblea Legislativa a formular una nueva consulta por cuanto, dichos cambios, fueron allegados al proyecto con mociones de fondo vía artículo 137 del Reglamento, lo que se erige como una nueva violación constitucional del procedimiento legislativo, seguido en el proceso de aprobación de la Ley 9.544.

Manifiesta que, otro aspecto relevante en el procedimiento seguido por la Asamblea Legislativa para tramitar el proyecto de ley N° 19.922, es que la propia asesoría jurídica de la Asamblea Legislativa, al emitir el Informe Integrado Jurídico-Económico sobre el texto sustitutivo al Expediente N° 19.922, N°AL-DEST-ITS-307-2016 de fecha 22 de septiembre 2016 “LEY DE REFORMA DEL TÍTULO IX DE LA LEY ORGÁNICA DEL PODER JUDICIAL No 8 DE 29 DE NOVIEMBRE DE 1937 Y SUS REFORMAS”, recomendó realizar la consulta preceptiva a la Corte Plena por mandato del numeral 167 Constitucional y advirtió que, en caso de formularse y que fuera negativa, la votación subsecuente en el Plenario Legislativo era de 38 votos del total de diputados. Señala que, concretamente, se indicó:

“... PROCEDIMIENTO LEGISLATIVO Votación De conformidad con el articulo 119 de la Constitución Política, este proyecto para su aprobación requiere de mayoría absoluta de los votos presentes.

Debe tenerse presente que, acorde con el articulo 167 constitucional si los diputados se aparten del criterio de la Corte Suprema de Justicia; para la aprobación de este proyecto de ley se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea.

Delegación Este proyecto de ley de conformidad con el articulo 124 de la Constitución Política NO es delegable para conocimiento de una Comisión con Potestad Legislativa Plena. La reforma planteada al artículo 243 de la Ley Orgánica del Poder Judicial estable el impuesto sobre la renta aplicable a las personas trabajadoras activas y a las jubiladas, deducción que se plantea sobre el ingreso bruto resultante, una vez aplicadas las demás deducciones obligatorias de ley.

Consultas 1. Preceptivas ° Corte Suprema de Justicia 2. Facultativas ° Procuraduría General de Costa Rica ° Superintendencia de Pensiones ° Ministerio de Hacienda ...” (los destacados son del memorial).

Añade que la recomendación técnica fue más allá y advirtió que, dentro del procedimiento legislativo, debía considerarse que, en caso de votación en el plenario del proyecto de ley N° 19.922 y de acuerdo con el artículo 119 de la Constitución Política, se requería mayoría absoluta de los votos presentes pero, conforme al artículo 167 constitucional, si los diputados se apartasen del criterio de la Corte Suprema de Justicia, se requería una votación agravada de dos terceras partes del total de diputados. Argumenta que, en relación con el expediente N°19.922, se tiene que al proyecto se le dio votación en Primer Debate en la Sesión Extraordinaria del Plenario Legislativo N°14 del 30 de octubre 2017, siendo aprobado únicamente con 31 votos a favor; y el Segundo Debate en la Sesión Ordinaria N°163 del Plenario Legislativo del 18 de abril de 2018 en la cual el proyecto de ley fue aprobado con la concurrencia de 34 votos a favor y 9 en contra, rechazando también en esa oportunidad una moción para la revisión de la votación anterior. Argumenta que, al tenor de lo dispuesto en el artículo 167 constitucional y 157 del Reglamento de la Asamblea Legislativa, para aprobar en Segundo Debate el proyecto de ley del expediente indicado y que se refería a la modificación el Título IX de la Ley Orgánica del Poder Judicial, se requería de una votación calificada, es decir, al menos 38 votos del total de los diputados, siendo evidente con ello que, en el proceso de formación de la ley, se quebrantó la regla constitucional el artículo 167 de la Constitución Política, lo que implica que, en su criterio, la acción de inconstitucionalidad debe ser declarada con lugar.

• e)Violación al principio de publicidad al tramitar el proyecto de ley N°19.922, artículos 105, 123 y 124 de la Constitución Política: manifiesta que, en la tramitación del proyecto de ley bajo estudio, la Asamblea Legislativa acordó realizar un procedimiento abreviado, diferente del trámite ordinario que normalmente se utiliza para legislar, siendo que el fundamento jurídico de dicha decisión fue el artículo 208 bis del Reglamento de la Asamblea Legislativa. Indica que, como regla general, ese Reglamento establece en dicho numeral, la inderogabilidad singular por medio de mociones de los procedimientos ahí establecidos para la tramitación de las leyes y, como excepción a dicha regla, dispone de una fórmula especial para establecer procedimientos mediante los cuales se reforme dicho Reglamento o se sancionen proyectos de ley que requieran mayoría absoluta, exceptuando, la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales, sin importar la votación requerida para su aprobación. Considera que la excepción del artículo 208 bis del Reglamento, se ha convertido en una regla de procedimiento legislativo, pues cada vez que la mayoría lo decida, podrían darle un trámite de excepción a un proyecto de ley, lo que a su juicio genera inseguridad jurídica y un quebranto al principio democrático de rango constitucional establecido como regla a respetar por parte de los legisladores. Añade que en el proyecto de ley N°19.922, por mayoría de las dos terceras partes de sus miembros, la Asamblea Legislativa decidió establecer un procedimiento especial para su tramitación, al amparo del artículo 208 bis y definieron una serie de reglas que debían cumplirse. Aduce que al estar en presencia de un procedimiento de excepción y, no de regla general, el cumplimiento al pie de la letra de lo establecido en la moción para darle trámite expedito al proyecto de reforma de las pensiones de Poder Judicial, era condición sine qua non para respetar los principios de certeza jurídica, democrático y de enmienda; es decir, que una vez aprobada la moción para darle vía rápida a un proyecto de ley, todos los diputados deberían haberse ajustado a una limitada participación y al cumplimiento exacto de los pasos procedimentales que se acuerdan por excepción al amparo del artículo 208 bis citado pero, como se podrá observar en la tramitación del proyecto de ley, ello no ocurrió y se violaron algunos procedimientos tales como las publicaciones de las mociones de texto sustitutivo, los plazos para dictaminar el proyecto, entre otras. Aclara que para el proyecto de Ley N° 19.922 no era posible aplicar el procedimiento establecido en el artículo 208 bis del Reglamento pues era evidente que se estaba haciendo una reforma legislativa que afectaba la organización o funcionamiento del Poder Judicial, lo que a su vez implicaba que, en caso de oposición de la Corte Plena, se requería de una votación de las dos terceras partes del total de los miembros de la Asamblea; no obstante, lo anterior, la Asamblea Legislativa en la Sesión Ordinaria del Plenario Legislativo N°37 del 30 de junio de 2016, estableció el procedimiento que se iba aplicar para la tramitación del proyecto N°19.922 según lo dispuesto por el artículo 208 bis) del Reglamento, definiendo para este caso particular una serie de restricciones y limitaciones, tanto para los diputados como para las instituciones consultadas, tal y como se describe a continuación:

“Moción de orden de varios diputados y diputadas: Para que de conformidad con lo establecido en el artículo 208 bis del Reglamento de la Asamblea Legislativa, se le aplique el siguiente procedimiento especial al Expediente Legislativo N°19.922, "Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa" (...)

2.-MOCIONES DE FONDO:

(...)

h- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto.

(...)

4- SESIONES ORDINARIAS Y EXTRAORDINARIAS:

(...)

3- Mociones de Fondo: a.- Las mociones de fondo serán de recibo únicamente cuando sean presentadas al Directorio durante las dos primeras sesiones de discusión del proyecto. En la segunda de esas sesiones los Diputados podrán presentar mociones hasta la hora en que finalice ésta. La Presidencia las dará a conocer a los Diputados por el medio que considere más oportuno.

b - La Presidencia de la Asamblea Legislativa determinará la admisibilidad de las mociones de fondo según las reglas dispuestas en esta moción. Igualmente, determinará su discusión conjunta, para lo cual las agrupará por diputado. Igualmente procederá a agrupar para su discusión en un solo acto las mociones idénticas o razonablemente equivalentes, pero de distintos Diputados, en cuyo caso serán agrupadas por su contenido, independientemente de quién las haya propuesto. Como regla general, cada Diputado podrá presentar una única moción de fondo por artículo, ya sea para modificarlo, adicionarlo o suprimirlo en su integridad. Para los artículos “complejos” se seguirán las reglas que se dispone de seguido. Si el artículo contiene varias modificaciones, abrogaciones o adiciones, podrá presentarse una única moción porcada modificación, abrogación o adición…

c.- Cuando uno o varios Diputados presenten mociones idénticas o razonablemente equivalentes, serán admitidas por la Presidencia para que sean discutidas en un solo acto, aunque votadas individualmente...” (los destacados son del memorial).

Añade que, de acuerdo con el procedimiento establecido para tramitar el proyecto de ley N° 19.922, por aplicación del artículo 208 bis del Reglamento, se puede concluir que se restringió la participación de los diputados, del Poder Judicial y otros actores, y pese a que se establecieron reglas para la publicación de los proyectos, éstas se incumplieron. Considera que es tan restrictivo el procedimiento aprobado por la moción 208 bis para la tramitación del proyecto de ley N° 19.922, que da la impresión de que el poder político que quería ejercer la Asamblea Legislativa, estaba por encima de los criterios técnicos, racionales y constitucionales que demandan este tipo de reformas, sobre todo si se considera la independencia propia del Poder Judicial, según su esencia que emana del artículo 9 de la Constitución Política. Aduce que, lo afirmado encuentra plena confirmación cuando en el informe afirmativo de mayoría de fecha 27 de julio del 2017, la Comisión Especial encargada de dictaminar el proyecto de ley indicó, en el último párrafo antes de la recomendación del Plenario Legislativo, lo siguiente: "...Dada la alta trascendencia fiscal, financiera y el impacto que tiene la aprobación de este proyecto de ley en pro de la garantía de la sostenibilidad financiera y adecuada administración del régimen de jubilaciones y pensiones del Poder Judicial; esta comisión rinde DICTAMEN AFIRMATIVO DE MAYORIA...". Manifiesta que, en este sentido, queda claro que la aplicación de un procedimiento abreviado vía artículo 208 bis) del Reglamento, en su criterio, es contrario a la Constitución Política por cuanto el propio texto de la norma 208 bis), podría ser inconstitucional cuando se utilice para la tramitación de un proyecto de ley como el N° 19.922. Indica que no se puede olvidar que la propia Sala Constitucional lo ha indicado en diversos fallos, así:

“El principio democrático. Nuestro voto minoritario da la razón al accionante, por los mismos fundamentos ya expresados en los votos salvados a la sentencia número 2005-398, 2008-07687 y 2007-2901 de 17:30 hrs. de 28 de febrero de 2007, partiendo del principio democrático, cuyo respeto resulta esencial para cualquier examen de la conformidad o disconformidad con la Constitución, de cualquier norma o acto. Sobre el particular, esta Sala ha expresado, en forma unánime, que: / “lo que el procedimiento legislativo pretende es asegurar el cumplimiento del principio democrático dentro de una sociedad que lo ha adoptado como propio de sus instituciones políticas. Por ser la democracia perfecta un ideal inalcanzable, el principio democrático se constituye en el parámetro que permite deducir el grado de proximidad que alcanza una determinada sociedad, en un momento histórico determinado, respecto del ideal y de su vocación, por acercarse al máximo posible al mismo. Como mínimo, el principio democrático exige respeto de los principios de participación y representación política -incluyendo todo lo que concierne al respeto de las minorías - base de nuestro sistema político. Este último se desdobla en aspectos tales como la legitimidad de los medios empleados para la designación de los diversos representantes y-no menos importante la posibilidad de oponerse, mediante el uso de medios legítimos, a la voluntad mayoritaria por parte de los grupos que representan las minorías. A partir de las anteriores observaciones, puede decirse que son inconstitucionales las violaciones del procedimiento que constituyan lesiones al principio democrático, dirección ineludible de la actividad parlamentaria. Asimismo, constituyen infracciones sustanciales, los trámites legislativos que por acelerados o impetuosos, provoquen debates que quedan ayunos de un proceso reposado en calidad y reflexión, que. además, adolezca de una amplia proyección de la actividad legislativa, tal como lo garantiza el artículo 117 de la Constitución Política. Además, se han considerado vicios sustanciales del procedimiento, la omisión de publicación y la omisión de realizar las consultas obligatorias establecidas constitucionalmente. En cuanto al primer aspecto, al ser la Asamblea Legislativa un órgano representativo de la comunidad nacional, la publicidad de los procedimientos parlamentarios es esencial, pues la soberanía reside en el pueblo y los diputados solamente son sus representantes (articulo 105 constitucional), por ello su actividad debe, necesariamente, trascender a toda la comunidad, a tal punto que algunos especialistas en Derecho constitucional lo definen como un órgano de publicidad" (ver sentencia número 2012-002675 de 11 horas y 52 minutos del 24 de febrero del 2012) (los destacados son del memorial).

Añade que, consta en el expediente legislativo, que la Comisión Especial rindió dictamen afirmativo de mayoría; no obstante, de previo a su aprobación, se presentó un texto sustitutivo que no fue analizado y ni discutido ampliamente en la sesión de la Comisión del 27 de julio de 2017, en que se dictaminó con la participación de los diputados y diputadas presentes, por lo que de acuerdo con la moción aprobada para tramitar dicho expediente vía artículo 208 bis), implicaba que se debió suspender el trámite y publicar nuevamente el texto sustitutivo para salvaguardar el principio constitucional de Publicidad y el principio Democrático a fin de permitir la participación de las partes interesadas. Agrega que, también, se debieron formular nuevamente las consultas institucionales correspondientes, sobre todo las preceptivas, de acuerdo con lo establecido en el inciso h) del punto 2) del procedimiento definido por el Plenario, para cumplir con el procedimiento regulado en el artículo 167 constitucional. Indica que, por lo anterior, la sesión extraordinaria de la Comisión Especial del lunes 27 de julio de 2017, se encuentra viciada de nulidad puesto que el proyecto -técnica y jurídicamente- se encontraba en suspenso hasta tanto no se publicara el texto del proyecto en el Diario Oficial La Gaceta -lo que nunca ocurrió-, toda vez que lo que finalmente se publicó fue el dictamen afirmativo de mayoría en el Alcance del Diario Oficial La Gaceta N° 189 de 4 de agosto de 2017, quebrantándose lo dispuesto en el inciso h) del punto 2) del procedimiento de vía rápida, artículo 208 bis), aprobado por el Plenario Legislativo -sesión N°37 del 30 de junio de 2016-, siendo que su desaplicación constituye una violación directa al debido proceso legislativo que también tiene amparo constitucional. Indica que, al respecto, la Sala Constitucional en la Sentencia 2002-03458 ha establecido que:

“La publicación de la Gaceta de los proyectos discutidos en ¡a Asamblea Legislativa es un instrumento que puede propiciar la participación popular en la adopción de las grandes decisiones nacionales, además de constituir una garantía de transparencia de la función de creación de la Ley".

Añade que, debido a lo anterior, se resaltan los siguientes aspectos que considera como causa fundamental para que se declare la inconstitucionalidad de la Ley N° 9.544, por vicios en el debido procedimiento legislativo, violación del principio democrático, el derecho de enmienda y el principio de publicidad en la formación de las leyes, en los siguientes términos:

• a)la tramitación del proyecto de Ley N° 19.922 carece de transparencia y publicidad, lo que quebranta los principios establecidos en el artículo 124 de la Constitución Política; b) como consecuencia primaria, se eliminó y restringió -indebidamente- la participación y representación de los legisladores (artículos 1, 9, 105, 123 y 124 de la Constitución Política); c) la tramitación del proyecto de ley transgredió el principio democrático (artículos 1, 9, 105, 123 y 124 de la Constitución Política); d) la tramitación del proyecto -por medio de la aplicación del procedimiento establecido en el artículo 208 bis) del Reglamento- no es clara y violenta los principios constitucionales democrático y derecho de enmienda toda vez que restringió la participación de terceros en el proceso de formación de la ley al establecer que únicamente se recibirán mociones de fondo en el Plenario durante los dos primeros días de discusión del proyecto; e) la Comisión Especial no respetó los alcances del acuerdo para tramitar el proyecto de ley conforme con el procedimiento del artículo 208 bis) del Reglamento de cita.

Indica que el principio de publicidad es inherente al concepto de representación y tiende a establecer los canales de comunicación entre representantes y representados, permitiéndole a los gobernados dar seguimiento al proceso parlamentario, no sólo en el control de la legalidad del procedimiento sino también en la protección de los valores e intereses fundamentales de la comunidad; permite entonces al administrado tener un control en los procedimientos para el respeto de los valores fundamentales y, transparencia. Aduce que, en ese sentido, al disponer un procedimiento especial, diferente, excepcional y más célere, en todo momento la Comisión Especial y el Plenario Legislativo debieron ajustarse, sujetarse y limitarse al cumplimiento de ese procedimiento especial previamente diseñado y evitar al máximo cualquier infracción a los principios de la seguridad jurídica y democrático. Manifiesta que, en esta línea de pensamiento y, si el texto sustitutivo del proyecto de ley N° 19.922 dictaminado por la Comisión Especial en sesión del 13 de setiembre de 2016, no fue publicado en el Diario Oficial La Gaceta de previo a su aprobación -como quedó demostrado en el expediente de la consulta legislativa facultativa de algunos Diputados (expediente judicial N° 17-017148-0007-CO)-, es claro que se está en presencia de un vicio del procedimiento que se estrella contra el principio constitucional de publicidad. Señala que, en este sentido, la sentencia N° 2018-5758 de las 15 horas 40 minutos del 12 de abril de 2018 indicó:

“Del estudio del iter legislativo, ha quedado establecido, que el texto sustitutivo del proyecto de ley en consulta, aprobado por la Comisión Especial en sesión del 13 de setiembre de 2016, no fue publicado, tal y como lo plantean los diputados consultantes y quedó debidamente acreditado por la prueba rendida por el Director Ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018. Por otra parte, de conformidad con las reglas fijadas por el procedimiento especial aprobado por la Asamblea Legislativa para el expediente número 19.922, en Sesión Ordinaria N° 37 del 30 de junio de 2016. con base en lo dispuesto en el artículo 208, bis, del Reglamento de la Asamblea Legislativa, esa publicación era obligatoria, lo cual se desprende claramente del inciso h, del punto 2, "Mociones de Fondo", del procedimiento en cuestión, que a la letra dice: “h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto...” (los destacados son del memorial).

Agrega que, en igual sentido, la sentencia N° 2002-003671 de las 11 horas 19 minutos del 19 de abril del 2002, señaló:

“...Lo anterior debe suceder además en un clima de publicidad y transparencia que permita a las personas y grupos de intereses, enterarse adecuadamente de las iniciativas en discusión, y acudir ante sus representantes a exigirles cumplir con su mandato en forma eficaz. Este clima de diálogo y publicidad debe caracterizar la actuación parlamentaria en todos sus ámbitos, y se torna imprescindible en casos de reformas o producción de normas complejas, extensas o de marcada relevancia para la vida del habitante...” (los destacados son del memorial).

Indica que sólo esta omisión en la publicación del proyecto de ley aprobado por la Comisión Especial, quebranta el principio constitucional de publicidad y, por ende, acarrea la inconstitucionalidad de la Ley N° 9.544 por existir vicios en el proceso abreviado de formación; permitir que estos yerros pasen inadvertidos, indicando que no son relevantes y por ende no afectan la constitucionalidad de la ley resultante, es permitir que se legisle sin transparencia y a la luz del principio de publicidad. Agrega que, respecto de la publicación de los proyectos en el Diario Oficial La Gaceta, la Sala Constitucional en Sentencia N° 2002-03458 de las 15 horas 54 minutos del 16 de abril del 2002, ha indicado lo siguiente:

“La publicación de la Gaceta de los proyectos discutidos en la Asamblea Legislativa es un instrumento que puede propiciar la participación popular en la adopción de las grandes decisiones nacionales, además de constituir una garantía de transparencia de la función de creación de la Ley”.

Argumenta que, en consonancia con el alegato que está planteando, la Sala Constitucional ha indicado en situaciones similares:

“Lo anterior ya ha sido sostenido por esta Sala, al evacuar las Consultas Legislativas Facultativas de Constitucionalidad presentadas con respecto a la aprobación del proyecto de ley denominado “Ley de Solidaridad Tributaria”, que se tramitó en el expediente legislativo No. 18.261, ocasión en la que, por Sentencia No. 2012-004621 de las 16:00 horas del 10 de abril de 2012, dijo: / Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del artículo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398-2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada” (ver sentencia 2012-004621 de las 16:00 horas del 10 de abril de 2012) Manifiesta que las violaciones al procedimiento legislativo abreviado aprobado por la Asamblea Legislativa, no acaban allí sino que el expediente legislativo revela que el texto del proyecto de ley cuyo texto sustitutivo fue aprobado en Primer Debate por el Plenario Legislativo -con cambios sustanciales-, el 30 de octubre de 2017, fue publicado en forma tardía en el Alcance 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, mientras que desde el 1º de noviembre del 2017, ya se había formulado una consulta legislativa que ingresó el 1º de noviembre del 2017 a la Sala Constitucional, tal y como quedó reseñado en la Sentencia N° 2018-5758, al indicarse que:

“Del expediente legislativo N° 19.922, se desprende que el texto sustitutivo aprobado en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, fue publicado en el Alcance 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, en tanto esta consulta fue planteada el 1 de noviembre de 2017. Es decir, que no solo dicho texto fue publicado en forma extemporánea, luego de ser aprobado en Primer Debate, sino que al momento de la presentación de la consulta ante este Sala no habla sido publicado, con lo cual se produjo, también, otra violación al principio de publicidad; y, por ende, a un trámite esencial del procedimiento legislativo...” (los destacados son del memorial).

Argumenta que, en ese estado de cosas, comparte plenamente el precedente de la Sala Constitucional en la sentencia N° 2018-5758 de las 15 horas 40 minutos del 12 de abril de 2018 en el sentido de que, el principio constitucional de publicidad, obliga a que un texto sustitutivo de un proyecto de ley deba ser publicado antes de su aprobación en Primer Debate ya que, al hacerse con posterioridad, viola, asimismo, el principio democrático al impedir a la ciudadanía, conocer, de previo a su aprobación, el texto sustitutivo del proyecto, sobre todo cuando se estableció un procedimiento abreviado, especial y célere para tramitar el proyecto de Ley. Manifiesta que, por ello, celebra que se haya indicado en la citada sentencia N° 2018-5758, que:

“Tal como se indica en el voto de mayoría, el texto sustitutivo en la Comisión, aprobado el 13 de setiembre del 2016, no fue publicado. Aunque posteriormente, el texto fue aprobado por la Comisión el 27 de julio del 2017 y publicado el 04 de agosto del 2017; y aunque luego el texto aprobado en primer debate fue publicado hasta el 9 de noviembre del 2017. En este contexto, no puede ignorarse que la moción que norma el procedimiento de aprobación del proyecto consultado señala que se debe publicar en caso de que haya un texto sustitutivo. Por lo tanto, se trató en esta hipótesis de una transgresión a lo indicado en la moción que norma el procedimiento (por demás, por tratarse de la aplicación del articulo 208 bis hace que dicha moción haga las veces de normas reglamentarias en ese proyecto en concreto), siendo que cualquier tipo de publicación normada, es un requisito esencial. Por tratarse de un procedimiento legislativo abreviado, con mayor rigor debe respetarse el principio de publicidad de las normas discutidas o aprobadas. La debilidad de un procedimiento abreviado requiere una aplicación más rigurosa de la exigencia de publicidad, sin admitir una convalidación respecto de un requisito tan importante como la publicidad. Por otro lado, la publicidad de los proyectos de ley es la única forma en que la actividad de los representantes populares trasciende a toda la población. Es la proyección de la actividad parlamentaria hacia el exterior, operando como una garantía constitucional que impide que el parlamento actuó de espaldas a la ciudadanía. A diferencia de otros asuntos en donde he considerado que la falta de publicación no ha sido un vicio esencial, en este caso considero que lo es, por tres razones: porque la norma que regula el procedimiento así lo indica, porque se trata de un texto sustitutivo. y además porque, la falta de publicación no permitió el conocimiento de la población del texto que se estaba discutiendo en ese momento, impidiendo, además, que la ciudadanía pudiera realizar manifestaciones sobre lo que pretendía el parlamento con el proyecto de ley. En este caso, tampoco se discute si se omitió la publicación de unas normas que no variaban la esencia del proyecto, es que, en este asunto, se omitió, totalmente, la publicidad durante el desarrollo de un procedimiento legislativo abreviado, que como lo expresé, debilita totalmente los principios constitucionales que rigen el procedimiento parlamentario” (los destacados son del memorial).

Manifiesta que más preocupación causa que no fue una única violación sino que fueron varias omisiones en las publicaciones que ordenó el propio Plenario Legislativo al aprobar la moción de tramitar el expediente N° 19.922 con fundamento en el procedimiento “express” del ordinal 208 bis) del Reglamento el cual indicó, Punto 2) literal h):

“h- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el provecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto” (los destacados son del memorial).

Considera que, el hecho de que el Plenario Legislativo defina un procedimiento especial para tramitar una reforma a la Ley Orgánica del Poder Judicial en Sesión Ordinaria N° 37 del 30 de junio de 2016, y que se incumplan las reglas de publicar los textos, constituye una clara lesión al principio de seguridad jurídica y al principio democrático, pues esa sería la única forma en que los diputados conocieran -previamente y con suficiente antelación-, el procedimiento al cual se iban a sujetar y así ejercer los mecanismos de participación y control correspondientes. Aunado a lo anterior, argumenta que la falta de publicación del texto sustitutivo en la tramitación del proyecto N°19.922, afectó directamente al personal activo y pensionado o jubilado del Poder Judicial, sobre todo si se considera que el proyecto de ley inicial con el que arranca la discusión de la reforma del Titulo IX de la Ley Orgánica del Poder Judicial, es un texto presentado por diversas organizaciones del Poder Judicial, como expresamente fue reconocido por el Presidente de la Asamblea Legislativa Álvarez Desanti en el párrafo 7 de la página 18 de la citada Acta Ordinaria N°37 de 30 junio de 2016, cercenándose con esa omisión, cualquier participación de diputados y ciudadanos en defensa de sus intereses. Indica que, concretamente, en dicha sesión, el presidente de la Asamblea Legislativa indicó:

“...Disculpen, aclaro que el texto base será el del expediente 19.651, que se incorpora con una moción de texto sustitutivo, firmada por todas las fracciones, con lo cual en el momento en que inicie el trámite de artículo 208 bis del expediente 19.922, se conocerá la moción de texto sustitutivo que utiliza como base el proyecto de ley que había sido presentado por diversas organizaciones del Poder Judicial”.

Estima que así queda demostrado que el apetito de la Asamblea Legislativa por modificar el Régimen de Jubilaciones y Pensiones del Poder Judicial, fue mayor que el cumplimiento del debido proceso legislativo y el respeto a las normas constitucionales en las que se asienta el principio de publicidad y democrático, generándose con esta actitud la inconstitucionalidad de la ley N°9.544.

• f)Violación al principio de razonabilidad técnica por la insuficiencia de estudios técnicos y actuariales que sustenten la imposición de un tributo denominado contribución especial, solidaria y redistributiva (artículos 28 párrafo segundo, 39, 41 y 74 de la Constitución Política): indica que los estudios técnicos que existen son insuficientes, carecen de precisión en la definición de los parámetros para establecer la contribución especial, solidaria y redistributiva, así como lo demás relativo a las otras normas aprobadas por la Asamblea Legislativa mediante la Ley N° 9.544 del 22 de mayo de 2018; esos estudios técnicos insuficientes, no permiten concluir que las medidas tomadas -en la ley que se impugna- son para preservar el fondo, para corregir situaciones de desequilibrio y que no se generen minusvalías para los pensionados que hagan nugatorio el disfrute del derecho jubilatorio. Indica que, en ese sentido, la Ley N° 9.544 de 22 de mayo de 2018, no tiene ningún estudio económico o actuarial que demuestre que los ahorros que se obtendrán con la aplicación de la contribución especial solidaria y el aumento de la contribución ordinaria de un 11% a un 13%, permitirán equilibrar actuarialmente el fondo; tampoco existe un estudio actuarial o económico que demuestre que las afectaciones a los pensionados y jubilados, son proporcionales o racionales al derecho a la jubilación que fue declarado a los beneficiarios y, más bien, se convierten en medidas que resultan confiscatorias. Argumenta que, en el estudio realizado por la compañía Melínsky, Pellegrinelli y Asoc. S.A. denominado “Informe Final de la Valuación Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial al 31.12.2011”, no se menciona absolutamente nada sobre una contribución especial solidaria y redistributiva, por lo que no se podría válidamente indicar que dicho estudio actuarial sirvió de base para establecer una contribución especial solidaria. Por su parte, aduce que en el estudio realizado por la Universidad de Costa Rica, denominado Proyecto: “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, Producto 6 Informe Final, Recopilación e informe final: Conclusiones y Recomendaciones, con fecha Julio 4, 2017, Cuidad Universitaria Rodrigo Facio”, se señala en relación con la contribución especial, solidaria y redistributiva lo siguiente:

"... Preocupaciones en cuanto a la confiscatoriedad de la contribución solidaria de un 50% sobre el monto en que la jubilación excede al tope de 4 millones de colones.

Antes de tomar decisiones en relación con este tema es necesario estudiar primero si realmente la contribución solidaria genera problemas de confiscatoriedad. Este estudio debe realizarse con base en montos efectivos de jubilación o pensión al momento actual según los datos de que disponga el Poder Judicial.

Segundo es necesario realizar un estudio sobre la jurisprudencia existente en cuanto a la confiscatoriedad que pueda surgir de la contribución solidaria propuesta. En este sentido, convendría investigar la experiencia y resoluciones judiciales sobre temas similares en otros regímenes de jubilación y pensión. ...

En todo caso, para evitar que el tema de confiscatoriedad se convierta en un escollo para la necesaria reforma a este régimen, se puede establecer que la contribución solidaria sea aplicada, junto con las demás deducciones normativas (aporte regular sobre beneficios, impuesto de renta, cuota al seguro de salud de la CCSS), sin que el total de deducciones supere el equivalente a 50% del beneficio bruto del jubilado o pensionado”.

Reitera que no existe un estudio técnico que recomiende establecer la contribución especial solidaria y redistributiva, como una forma de mejorar la situación actuarial del régimen en el largo plazo, tampoco existe fundamento técnico que determine los porcentajes o, si estos porcentajes o parámetros establecidos, resultan ser razonables y proporcionales, como parámetros de constitucionalidad o, si por el contrario, la aplicación de dicha contribución deviene en confiscatoria. Manifiesta que, lo único que existe, es una especie de “treta parlamentaria”, recomendada por la Universidad de Costa Rica para camuflar la contribución especial solidaria, en el bosque del total de las deducciones, para que no se note el efecto confiscatorio. Indica que, al respecto, la misma Sala ha señalado de manera tajante que la ausencia de estudios que no describen adecuadamente la situación fáctica o la viabilidad técnica de una medida que adopte la Asamblea Legislativa, no resulta ser un problema de fondo sino de forma, que se erige como un vicio de carácter esencial no subsanable del procedimiento legislativo, como efectivamente ocurre -en su criterio- en el caso de la contribución especial, solidaria y redistributiva, tal y como se reseñó la sentencia N° 2014-18836 de las 16 horas 20 minutos del 18 de noviembre de 2014:

“Al respecto, cabe indicar que, contrario a lo que los consultantes plantean, la falta de estudios técnicos previos de los que adolece el proyecto de ley en cuestión no es un problema de fondo, sino que constituye un vicio de carácter esencial del procedimiento legislativo, tal y como esta Sala lo ha establecido reiteradamente en su jurisprudencia. Así, en una de las más recientes sentencias sobre el tema, esta Sala afirmó:

"El proyecto de ley en discusión carece de estudios técnicos que acrediten no sólo la situación táctica, sino también la viabilidad técnica, así como la razonabilidad y proporcionalidad como parámetros de constitucionalidad, principios que debe observar toda norma jurídica, principalmente cuando se trata de afectar recursos públicos como sucede en el caso concreto.

Lo anterior permite a este Tribunal coincidir con la posición de los diputados y diputadas consultantes en el sentido que no existe en el expediente legislativo un estudio técnico que analice y determine la posibilidad de reducir la protección ambiental en aplicación del principio de objetivación de la tutela ambiental, a pesar de que existen tanto instituciones como expertos en la temática ambiental que podrían haber elaborado el estudio técnico que se echa de menos en el proyecto de ley.

En virtud de lo expuesto, procede evacuar la consulta señalando la existencia de vicios esenciales de inconstitucionalidad en el trámite del proyecto, en los términos del articulo 101 de la Ley de la Jurisdicción Constitucional”.

Manifiesta que lo que se extrae del estudio de la UCR citado por el dictamen afirmativo de mayoría de fecha 27 de julio de 2017, es una preocupación por considerar ese rubro (contribución especial, solidaria y redistributiva), como confiscatorio e irracional, indicándose que se podría aplicar “... siempre que no supere una disminución del 50% del monto de la pensión junto con las demás deducciones que de por sí se les aplican a las jubilaciones y pensiones...”. Añade que, de acuerdo con lo anterior, la Ley 9.544 vía tributos, autoriza confiscar hasta un 55% del monto de pensión en curso de pago, sin que para su promulgación se haya contado con estudios técnicos que respaldaran la razonabilidad y proporcionalidad de la medida, lo que implica que, desde el punto de vista constitucional, la ley cuestionada es inconstitucional por no cumplir con los parámetros necesarios en el proceso de formación de las leyes y que la Sala ha considerado como indispensables. Manifiesta que, de esta manera, se procura no sólo que la ley no sea irracional, arbitraria o caprichosa, sino además que los medios seleccionados tengan una relación real y sustancial con su objeto; se distingue entonces entre razonabilidad técnica, que es, como se dijo, la proporcionalidad entre medios y fines; razonabilidad jurídica, o la adecuación a la Constitución, en general, y en especial, a los derechos y libertades reconocidos o supuestos por ella; y finalmente, razonabilidad de los efectos sobre los derechos personales, en el sentido de no imponer a esos derechos otras limitaciones o cargas que las razonablemente derivadas de la naturaleza y régimen de los derechos como tales, ni mayores que las indispensables para que funcionen razonablemente en la vida de la sociedad. Aduce que, para determinar si la norma efectivamente transgredió el debido proceso sustantivo (razonabilidad) y si por ello resulta inconstitucional, lo que procede es analizar si la disposición se subordina a la Constitución Política, se adecúa sus preceptos a los objetivos que pretende alcanzar, y da soluciones equitativas con un mínimo de Justicia (ver en ese sentido la sentencia N° 2001-11543 de las 15 horas del 7 de noviembre del 2001).

• g)Incompetencia de la Asamblea Legislativa para crear contribuciones especiales artículo 121.13) de la Constitución Política: indica que el artículo 236 bis) de la Ley N° 9.544 establece una: “contribución, especial y solidaria” a las pensiones del Fondo cuyas prestaciones superen el monto que resulta de 10 veces el salario del puesto más bajo pagado en el Poder Judicial; disposición que crea e impone una “contribución” que califica de “especial", “solidaria” y “redistributiva”; la Real Academia define la palabra “especial” como: “Singular o particular, que se diferencia de lo común o general”. Argumenta que, de conformidad con lo dispuesto por el artículo 121, literal 13) de la Constitución Política, le corresponde a la Asamblea Legislativa, en forma exclusiva pero limitada, establecer los impuestos y contribuciones nacionales y autorizar las municipales. Añade que, de acuerdo con la Real Academia, el verbo “establecer” tiene, entre otros, los siguientes significados: “fundar, instituir, ordenar, mandar, decretar”; por su parte, la palabra “contribución” se define en la RAE como: “cuota o cantidad que se paga para algún fin, y principalmente la que se impone para las cargas del Estado”, y finalmente la palabra “nacionales” aunque no está definida como tal, se recurre al término “nacional” que, para la RAE significa: “Perteneciente o relativo a una nación”. Indica que, de la lectura del artículo 121 inciso 13) indicado, se colige con meridiana claridad que el legislador originario, le otorgó potestades a la Asamblea Legislativa para “establecer" los “impuestos" y las “contribuciones" "nacionales", pero entonces, considera que cabe preguntarse si imponer una “contribución especial” se encuentra dentro de las atribuciones de la Asamblea Legislativa?. Aduce que, apresurando una respuesta, parece que no pues, la contribución especial a la que se obliga a los pensionados del Fondo de Jubilaciones y Pensiones del Poder Judicial, no es nacional pues no afecta a todos los ciudadanos de un Estado, sino que, de manera singular, afecta a un grupo especial, determinado y particular de personas que se encuentran en estado de pensionados o jubilados por el régimen del Poder Judicial. Señala que, justificando lo anterior, se recurre a las propias sentencias de la Sala Constitucional que, de manera reiterada, ha afirmado que el “Poder Tributario” es una potestad soberana del Estado por medio de la cual puede exigir contribuciones a personas o bienes y conceder exenciones, así como también que dicho poder no reconoce más limitaciones que las que se originan en la propia Constitución Política (ver sentencias de la Sala Constitucional 6455-1994 de las 18 horas 18 minutos del 2 de noviembre de 1994; 5398-1994 de las 15 horas 27 minutos del 20 de septiembre de 1994). Manifiesta que, de manera concreta, en la sentencia N°2004-5015 de las 14 horas 53 minutos del 12 de mayo de 2004, la Sala Constitucional indicó:

“A partir de dicha norma, que desarrolla la reserva de Ley prevista en el artículo 121 inciso 13 de la Constitución Política, para el establecimiento de “impuestos y contribuciones nacionales”, se entiende que es únicamente la Asamblea Legislativa la que, mediante el procedimiento para la creación de la Ley formal, puede establecer los elementos esenciales de los tributos nacionales: el sujeto pasivo, la base imponible, el hecho generador y el porcentaje del gravamen. El sujeto pasivo que es la obligada al cumplimiento de las prestaciones tributarias (articulo 15 del Código de Normas y Procedimientos Tributarios); el hecho generador que es el presupuesto establecido por la Ley para tipificar el tributo y cuya realización origina el nacimiento de la obligación (articulo 31 ibídem); la base imponible como aquella a partir de la cual se calculará el importe de la obligación tributaria; y la tarifa del tributo, es decir, al porcentaje de la base imponible que deberá ser cancelada por parte del sujeto pasivo. Sobre el principio de reserva legal en materia tributaria, esta Sala la definió en sentencia número 4785-93, de las ocho horas treinta y nueve minutos del treinta de setiembre de mil novecientos noventa y tres..." Argumenta que, tanto el poder tributario como el principio de reserva de ley, tienen como límite el propio texto de la Constitución Política en cuanto la posibilidad de establecer impuestos y contribuciones nacionales, pero al amparo de los principios tributarios que también deben tener tutela constitucional, tales como:

• a)que los tributos son prestaciones en dinero y pueden ser impuestos, tasas y contribuciones especiales, que el Estado exige; b) que el impuesto es un tributo cuya obligación tiene como hecho generador una situación independiente de toda actividad estatal relativa al contribuyente; c) que la tasa es el tributo cuya obligación tiene como hecho generador la prestación efectiva o potencial de un servicio público individualizado en el contribuyente; d) que la contribución especial es el tributo cuya obligación tiene como hecho generador beneficios derivados de la realización de obras públicas o de actividades estatales.

Añade que, reconociendo que la potestad de la Asamblea Legislativa está limitada a las contribuciones nacionales y que éstas están referidas a la realización de obras públicas, evidentemente escapa a la competencia de la Asamblea Legislativa, establecer contribuciones especiales, solidarias y redistributivas a los pensionados o jubilados del Poder Judicial, por ser contrario al artículo 121:13) de la Constitución Política. Indica que, aunado a lo anterior, debe destacarse que la potestad soberana tributaria, o sea la posibilidad de exigir contribuciones a las personas -no reconoce más limitaciones que las que se originan en la propia Constitución Política- (sentencia de la Sala Constitucional 6455-1994 de las 18 horas 18 minutos del 2 de noviembre de 1994), implica que la Asamblea Legislativa no tiene poder tributario para imponer contribuciones que no sean nacionales, o sea, que al amparo del artículo 121 inciso 13 de la Constitución Política no se podrían establecer “contribuciones especiales, solidarias y redistributivas” para un régimen especial particular pues ello, según su criterio, es contrario a la competencia otorgada por el legislador originario toda vez que la contribución especial que se regula en el artículo 236 bis de la Ley N°9.544, solo afecta a un grupo de pensionados, de un régimen particular, lo que quebranta también el principio de isonomía tributaria, en los términos definidos por la Sala Constitucional en la sentencia N° 6.455-1994 de las 18 horas 18 minutos del 2 de noviembre de 1994 al indicar que:

“La potestad soberana del Estado de exigir contribuciones a personas o bienes que se hallan en su jurisdicción o bien de conceder excepciones- no reconoce más limitaciones que las que se originan en la propia Constitución Política. Esa potestad de gravar es el poder de sancionar normas jurídicas de las que se derive o pueda derivar, la obligación de pagar un tributo o de respetar un limite tributario y entre los principios constitucionales de la Tributación, se encuentran inmersos el Principio de Legalidad o bien de Reserva de Ley, el de Igualdad o Isonomía, de Generalidad y de No Confiscación. Los tributos deben emanar de una Ley de la República, no crear discriminaciones en perjuicio de sujetos pasivos, deben abarcar integralmente a todas las personas o bienes previstas en la ley y no sólo a una parte de ellas y debe cuidarse de no ser de tal identidad, que viole la propiedad privada (artículos 33, 40, 45, 121 inciso 13.) de la Constitución Política).-“...” En este sentido cabe recordar que nuestro ordenamiento jurídico reconoce la potestad tributaria del Estado a nivel constitucional, de manera que corresponde a la Asamblea Legislativa la facultad de "Establecer los impuestos y contribuciones nacionales, ...” (articulo 121 inciso 13) de la Constitución Política)...”.

Indica que, de acuerdo con los propios límites contenidos en la Constitución Política, en el tanto autoriza a la Asamblea Legislativa para establecer únicamente contribuciones nacionales de alcance general y basados en el principio de igualdad, se puede concluir que, por ser la contribución que se ordena en el artículo 236 bis de la Ley N° 9.544 de carácter “especial”, “solidaria” y “redistributiva”, en su criterio es inconstitucional por violación del artículo 121 literal 13) de la Constitución Política. Añade que, por lo expuesto, acusa la inconstitucionalidad por cuestiones de forma de la Ley N° 9.544 de 22 de mayo de 2018, "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas11” y solicita que en sentencia se declare con lugar la acción de inconstitucionalidad y, en consecuencia, se anule la ley cuestionada y se elimine del ordenamiento jurídico.

• B)En lo que a la Inconstitucionalidad por el fondo se refiere, aduce que en este aparte se acusa la violación a los siguientes principios y normas constitucionales y convencionales: derechos constitucionales y convencionales de las personas mayores; artículos 50, 51 y 53 de la Constitución Política; violación a la protección a una remuneración digna contenida en la Declaración Universal de los Derechos Humanos, artículo 3, Convención Interamericana de los Derechos Humanos de las Personas Mayores artículos 3 incisos c), f) y g), 6, 7 y 17; Convención Americana sobre Derechos Humanos "Pacto de San José de Costa Rica", artículo 24; aplicación indebida de Convenios Internacionales sobre Seguridad Social, y los derechos constitucionales contenidos en los artículos 21, 51, 56 y 57 de la Constitución Política; violación del contenido en los artículos del 25 al 30, 66 y 67 del Convenio No 102 de la Organización Internacional del Trabajo (OIT) denominado Convenio relativo a la norma mínima de la seguridad social; violación al principio de las situaciones jurídicas consolidadas; artículo 34 de la Constitución Política; violación a los principios de proporcionalidad y razonabilidad, artículos 28 párrafo segundo, 41 y 74 de la Constitución Política; violación al principio de no confiscación; artículo 40 de la Constitución Política; violación al principio de la responsabilidad administrativa y de la intangibilidad del patrimonio; artículos 34, 41 y 45 Constitución Política; violación al principio de irretroactividad la doctrina de la supervivencia del derecho abolido; articulo 34 de la Constitución Política. Manifiesta que, a continuación, detalla las violaciones que, en su criterio, han generado la promulgación de las normas de la Ley 9.544 y que, mediante esta acción, se impugnan. Indica que las normas cuestionadas están produciendo grave afectación económica, así como individual, para cada uno de sus representados.
• a)violación a los derechos constitucionales y convencionales de las personas mayores; artículos 50 y 51 de la Constitución Política; violación a la protección a una remuneración digna contenida en la Declaración Universal de los Derechos Humanos, artículo 3, Convención Interamericana de los Derechos Humanos de las Personas Mayores artículos 3 incisos c), f) y g), 6, 7 y 17; Convención Americana sobre Derechos Humanos "Pacto de San José de Costa Rica", artículo 24: manifiesta que las normas impugnadas atentan contra los fines proteccionistas que otorgan los instrumentos jurídicos de seguridad social en Costa Rica para las personas “adultas mayores”, entre otros recursos, por medio de las pensiones. Señala que las normas cuestionadas crean un sistema que somete a quienes adquirieron ese derecho hace muchos años, a una desprotección económica inmediata, pues se rebajan de manera abrupta y arbitraria, los montos percibidos de un mes al otro y, así las cosas, las normas acusadas de inconstitucionales, en su criterio, presentan una clara violación a la Convención Interamericana de los Derechos Humanos de las Personas Mayores, aprobada por la Ley 9394 del 8 de setiembre de 2016, en la cual se refuerzan los derechos jurídicos de los adultos mayores para que sigan disfrutando de una ayuda plena, independiente y autónoma, con salud, seguridad, integración y participación en las esferas económica, social, cultural y política. Agrega que la Declaración Universal de Derechos Humanos dispone que toda persona que trabaja, tiene derecho a una remuneración que, en el caso de los jubilados y pensionados que cotizan toda la vida laboral para un régimen de pensiones, les da el derecho de percibir una prestación económica por los servicios prestados, según lo dispone en su artículo 3:

“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”.

Indica que, con la ley de reforma aprobada y ahora cuestionada, se está violentando la finalidad de la protección que promueve la Declaración Universal de Derechos Humanos y, lejos de velar porque los fondos y los regímenes de pensiones mantengan el poder adquisitivo, más bien se está promoviendo la disminución desproporcionada de las pensiones y jubilaciones al establecer una contribución solidaria que va de un 35% a un 55%, sin ningún sustento técnico que indique que esos porcentajes son los que deben aplicarse y, sin considerar que se está en presencia de una población que sobrepasó, en su mayoría, los 65 años de edad, además de que en algunos casos son personas con problemas de salud que utilizan la mayor parte de sus ingresos en el pago de médicos y medicamentos, bienes y servicios que no provee el seguro universal de salud. Añade que tampoco se estaría garantizando la protección y la seguridad social de los jubilados y pensionados pues, si se materializa la aplicación de la contribución solidaria y el aumento en la contribución ordinaria, la disminución en los montos de las pensiones y jubilaciones pondría en peligro el sustento económico de los hogares que dependen de ese ingreso. Aduce que, en ese sentido, ha sostenido la Sala Constitucional en la sentencia N° 633-94 de las 15 horas 18 minutos del 31 de enero de 1994, que para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales y que la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición, y prohíbe la confiscación:

“El Estado puede tomar parte de la renta que genera el particular, para sufragar los gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Constitución protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución, asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación” (ver en el mismo sentido votos 554-95 de las 16 horas 45 minutos del 31 de enero de 1995 y 5749-93- de las 14 horas 33 minutos del 9 de noviembre de 1993).

Considera que las normas impugnadas son inconstitucionales ya que se desprotege a los jubilados y pensionados, suprimiéndoles sus ingresos -previamente otorgados y declarados-, lo que atenta contra la calidad de vida y el derecho fundamental a una vejez digna. Agrega que, en forma práctica, puede indicar que el cambio que introduce la Ley N° 9.544, tiene implicaciones sociales, económicas y familiares para los jubilados y pensionados, siendo algunas situaciones que se han identificado, las siguientes:

• 1)la contribución especial, solidaria, aplicada en conjunto con las otras deducciones preexistentes y nuevas implican que el ingreso real de una familia se puede reducir en un 55%, con respecto al mes inmediato anterior; 2) las obligaciones civiles de los jubilados y pensionados que representa para esta acción, se ponen en riesgo ante la insuficiencia de recursos que genera la reforma de manera intempestiva, es decir, subrepticiamente los presupuestos familiares para la atención de enfermedades y gastos médicos, que son usuales en las personas jubiladas y pensionadas, también se ven groseramente afectados con el consecuente riesgo para los ex funcionarios del Poder Judicial; 3) desde el punto de vista social, el esquema contributivo de la reforma pone en vilo a las familias afectadas en el tanto los ingresos mensuales se disminuyen y se verán obligadas a ajustar las actividades económicas y sociales, al nuevo presupuesto.

Manifiesta que, como consecuencia de la aplicación de los artículos 236 párrafo 1) y 236 bis) de la Ley N° 9.544 -aquí impugnados-, se lesionan groseramente los derechos constitucionales consagrados en los artículos 50, 51 y 73 de la Constitución Política. Indica que, sobre la tutela de los jubilados, pensionados y adultos mayores, el numeral 51 de la Constitución ha determinado una especial protección para éstos; numeral que ha sido dotado de un extraordinario contenido por la Sala Constitucional, la que, como intérprete supremo de la Constitución, ha determinado una especial protección a jubilados, pensionados y adultos mayores, vinculado con el libre desarrollo de su personalidad y el rol del Estado Constitucional. Arguye que esa especial protección se ha visto reforzada con la promulgación, por parte de la Asamblea Legislativa, de la Ley Integral para la Persona Adulta Mayor del 25 de octubre de 1999, Ley N° 7935, cuyo artículo 1° establece como objetivo, el garantizar a las personas adultas mayores, igualdad de oportunidades y vida digna en todos los ámbitos, así como impulsar la atención integral e interinstitucional de las personas adultas mayores por parte de las entidades públicas y privadas, y también velar por el funcionamiento adecuado de los programas y servicios destinados a esta población, garantizar la protección y la seguridad social de las personas adultas mayores. Además, señala que en la jurisprudencia constitucional se evidencia la utilización de instrumentos de carácter de “soft law” para reafirmar esa especial protección como el Protocolo de San Salvador, la Carta de San José sobre los Derechos de las Personas Mayores de América Latina y el Caribe y, recientemente, la Convención Interamericana sobre la Protección de las Personas Adultas Mayores, incluso de previo a su aprobación por parte de la Asamblea Legislativa. Aduce que interesa resaltar que la Sala Constitucional en la sentencia N° 9676-2001, indicó en lo que interesa:

“(...) DE LA ESPECIAL PROTECCIÓN GENERADA A FAVOR DE LAS PERSONAS DE LA TERCERA EDAD (ARTÍCULO 51 DE LA CONSTITUCIÓN POLÍTICA).

(…) queda claro que la protección especial por parte del Estado para esos grupos de personas se constituye en un verdadero derecho fundamental, exigible en las correspondientes dependencias administrativas y tribunales de justicia.

Es así, como a partir del concepto del Estado social de Derecho, es posible derivar obligaciones para las autoridades, precisamente en aras a la búsqueda del mayor bienestar de todos los habitantes del país, dentro de los cuales, el Derecho de la Constitución señala de manera especial a los niños, a las madres, al anciano y personas desvalidas. Es a partir del establecimiento de un de Estado Social, derivable de las disposiciones contenidas en los artículos 50 y siguientes de la Carta Fundamental, que de manera inmediata se genera la obligada intervención estatal en materia social, en la que ha de obrar en determinado sentido y orientación: a favor de aquellos sectores especiales de la población que, por su condición, asi lo requieren; y tal es el caso -sin duda alguna- de los ancianos, denominados como personas de la tercera edad, o personas adultas mayores. Hasta hace poco, no se contaba con una normativa tendente a garantizar en una forma más adecuada, la especial protección y tutela estatal que requiere el adulto mayor de nuestro país; sin embargo, recientemente, la Asamblea Legislativa promulgó la Ley Integral para la persona adulta mayor, número 7935, de diecinueve de octubre de mil novecientos noventa y nueve, con la que se pretende a) Garantizar a las personas adultas mayores, igualdad de oportunidades y vida digna en todos los ámbitos (…)” (los resaltados son del memorial).

Agrega que, en igual sentido, la sentencia N° 2007-13584 de las 15 horas 15 minutos del 19 de septiembre del 2007, dispuso:

“(...) I.- SOBRE LA CALIDAD DE VIDA DE LAS PERSONAS ADULTAS MAYORES. Nuestra Constitución Política, consagra una protección especial para las personas adultas mayores, la cual se desprende, expresamente, de lo dispuesto en el articulo 51 de la Constitución Política, que dispone lo siguiente:

[...]

Por su parte, este Tribunal Constitucional ha indicado que, de conformidad con dicha norma, el Estado costarricense tiene un deber dual de, en primer término, crear un marco normativo adecuado con el fin de brindar una protección especial para esos grupos de personas, lo que constituye un verdadero derecho fundamental. En segundo término, le corresponde respetar y hacer respetar, a través de las correspondientes dependencias administrativas y tribunales de justicia, tales derechos. Asimismo, se ha concluido que, a partir de la consagración del Estado Social de Derecho derivable de las disposiciones contenidas en los artículos 50 y siguientes de la Carta Fundamental, es posible extraer obligaciones para las autoridades públicas, precisamente, en aras de la búsqueda del mayor bienestar de “todos los habitantes del país”, dentro de los cuales, el Derecho de la Constitución señala de manera especial a los niños, a las madres, al anciano y a las personas desvalidas. Así, el Estado Social, consagrado en nuestra Constitución Política, desarrolla en su contenido normativo una relevante y obligada protección e intervención estatal en materia social a favor de aquellos sectores especialmente vulnerables de la población que, por su condición, así lo requieran; tal es el caso -sin duda alguna- de los ancianos, personas de la tercera edad o personas adultas mayores” (los resaltados son del memorial).

Indica que, para la Sala, el Estado costarricense tiene un deber dual de, en primer término, crear un marco normativo adecuado con el fin de brindar una protección especial para esos grupos de personas, a saber, jubilados, pensionados, adultos mayores o personas de la tercera edad, lo que constituye un verdadero derecho fundamental; en segundo término, le corresponde respetar y hacer respetar, a través de las correspondientes dependencias administrativas y tribunales de justicia, tales derechos.

Considera que, en atención a lo anterior, la aplicación de las normas impugnadas resulta abusiva y arbitraria (otra de las finalidades del principio de seguridad jurídica) en el tanto agrava las condiciones socioeconómicas de los jubilados y pensionados del Poder Judicial, a su antojo y sin reparo en sus derechos y expectativas, esto por cuanto se trata de un régimen de pensiones cuya adscripción es obligatoria que, liberado de cualquier control de seguridad jurídica, permitiría la variación de condiciones de las formas más indiscriminadas, independientemente de la voluntad de los trabajadores. Así las cosas, recuerda que la idea de seguridad jurídica compromete a todos los poderes del Estado pero obliga especialmente al Poder Judicial, y a la magistratura constitucional, que básicamente es un poder de control; es la última seguridad que prevé el sistema jurídico-político, siendo que para que la jurisdicción constitucional cumpla confiablemente sus papeles en materia de seguridad jurídica, tienen que conjugarse determinados factores, como ser una judicatura imparcial e idónea, técnica y éticamente hablando. Señala que la protección constitucional a las personas jubiladas y pensionadas y adultos mayores, se amplía en Costa Rica con la existencia de normas convencionales que, de manera más clara y precisa, establecen una protección más efectiva para las personas que tienen ese perfil dentro de la comunidad. Indica que las temáticas de las personas adultas mayores, son una cuestión de derechos fundamentales que ha sido tutelados por diferentes instrumentos normativos a nivel constitucional, convencional y supranacional, lo que demuestra una protección multinivel y, en tal sentido, argumenta que la labor de los jueces en la jurisdicción constitucional, en aplicación e interpretación de los derechos de los adultos mayores, juega un rol fundamental pues manifiesta que son los Estados los principales garantes de la protección de los derechos con fundamento en los principios de subsidiaridad y complementariedad. Señala que se debe ser enfático en que el artículo 236 bis) de la Ley 9.544, lo que establece es un tributo que se ha calificado como una contribución especial y solidaria, que es contraria a las disposiciones contenidas en los artículos 3 incisos c), f) y g), 6, 7 y 17 en la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, firmada por el Estado costarricense el 15 de junio de 2015 y debidamente aprobada por Costa Rica el 12 de octubre de ese mismo año, de forma que, por sí misma y de conformidad con el artículo el 10 de la Constitución Política y los artículos 3, 48, 88, 89, 91 y 92 de la Ley de la Jurisdicción Constitucional, dicha convención reconoce un elenco de derechos a este grupo poblacional respecto del cual, la Sala se encuentra en la obligación de dar protección, respeto y garantía. Sobre el particular, argumenta que, en la sentencia N° 14-18301 se indicó en lo que interesa:

“(…). La Sala ha protegido en su jurisprudencia los intereses y derechos de las personas adultas mayores, por encontrarse en una situación de especial vulnerabilidad. En el sub-lite, este Tribunal es del criterio que la falta de reparación de la calle frente a la vivienda del amparado afecta de manera directa sus derechos fundamentales, pues por su condición de avanzada edad requiere de una vía accesible y de fácil tránsito para poder desplazarse, ya sea a pie o en vehículo. Habiéndose comprobado la situación denunciada, lo propio es acoger el amparo en cuanto a este extremo”.

Argumenta que el artículo 17 en plena consonancia con los principios que informan los artículos 50 y 73 de la Constitución Política, refiere al derecho a la seguridad social como uno de los derechos fundamentales de los jubilados, pensionados y las personas adultas mayores, de donde deviene la garantía de recibir ingresos para una vida digna e independencia económica a través de los sistemas de seguridad social. Manifiesta que, contar con seguridad económica, es imprescindible para disfrutar un envejecimiento en condiciones de dignidad e independencia; la capacidad de disponer de una cantidad de recursos económicos, regulares y suficientes en la vejez, es fundamental para garantizar una buena calidad de vida, lo que es un derecho tutelado por las normas citadas, tanto del Convenio como por la Constitución Política, por lo que la Ley N° 9.544 -en su criterio-, se vuelve inconstitucional cuando atenta contra la dignidad del pensionado y jubilado. Recuerda que el objetivo principal de los programas o sistemas de jubilaciones y pensiones consiste en proteger a la población del riesgo de pérdida de ingresos en la vejez, siendo que la protección puede brindarse en el marco de un esquema contributivo (financiado principalmente con los aportes y contribuciones de trabajadores y empleadores), o no contributivo (financiado con impuestos o rentas generales estatales). Aduce que, en los sistemas contributivos, el fundamento o razón de ser de la protección se basa en el derecho al descanso, merecido por la aportación a la actividad productiva realizada durante un largo período de tiempo y se establece como una contraprestación debido a los años de productividad y de servicio, a diferencia de otros empleados. Señala que en la vejez se incrementan las probabilidades de experimentar un deterioro económico como el sufrido por sus representados con la aplicación de la Ley N° 9.544, cuyo impacto pone en riesgo la supervivencia de las personas jubiladas, pensionadas y adultas mayores, así como de sus derechos ampliamente reconocidos por los instrumentos internacionales. Manifiesta que la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores es un instrumento que contempla una serie de definiciones y alcance de los derechos de las personas mayores, así como principios convencionales, entre ellos: la promoción y defensa de los derechos humanos y libertades fundamentales del adulto mayor, la valorización del adulto mayor, su papel en la sociedad y contribución al desarrollo, la dignidad, independencia, protagonismo y autonomía del adulto mayor, la igualdad y no discriminación, entre otros, la cual fue aprobada el 5 de junio del 2015 en la 45 Sesión de la Asamblea de la Organización de Estados Americanos. Menciona que, en el ámbito del derecho supranacional y, en particular modo, a nivel comunitario europeo, esta temática ha encontrado reconocimiento en la Carta de Derechos Fundamentales de la Unión Europea (2000) -comúnmente denominada Carta de Niza- cuyo artículo 25 determina:

“La Unión reconoce y respeta el derecho de las personas mayores a llevar una vida digna e independiente y a participar en la vida social y culturar. Además, el artículo 21.1 reconoce el principio de no discriminación determinado: “Se prohíbe toda discriminación, y en particular la ejercida por razón de sexo, raza, color, orígenes étnicos o sociales, características genéticas, lengua, religión o convicciones, opiniones políticas o de cualquier otro tipo, pertenencia a una minoría nacional, patrimonio, nacimiento, discapacidad, edad u orientación sexual” Aduce que, igualmente, destaca la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores que, en su artículo 31, establece que el acceso a la justicia contempla tres aspectos: el primero comprende el acceso propiamente dicho mediante el cual la persona puede interponer sus acciones para obtener protección judicial sin obstáculos ni discriminación; un segundo aspecto es el derecho a lograr un pronunciamiento del aparato judicial que tutele esos derechos o resuelva el conflicto mediante una sentencia o cualquier otra decisión debidamente motivada y como tercera dimensión, lograr que esa resolución sea cumplida y ejecutada. Indica que, en Costa Rica, este principio de igualdad y no discriminación, se encuentra tutelado en el artículo 33 de la Constitución Política, el cual dispone que "Todo hombre es igual ante la ley y no podrá hacerse discriminación alguna contraria a la dignidad humana". Recuerda que, además, el país ha suscrito una serie de instrumentos de Derecho Internacional de los Derechos Humanos que regulan esta temática como la Convención Americana sobre Derechos Humanos, artículo 24; la Convención Interamericana sobre Protección de los Derechos Humanos de las Personas Adultas en su artículo 3 inciso d); la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores que define en su artículo 2 la discriminación por edad en la vejez. Argumenta que, por su parte, la Sala Constitucional ha determinado que el principio de igualdad y no discriminación resulta lesionado en aquellos supuestos en que se dé un tratamiento diferente a personas que se encuentren en una misma situación o categoría.

• b)violación en la aplicación indebida de convenios internacionales sobre seguridad social, y los derechos constitucionales contenidos en los artículos 21, 51, 56 y 57 de la Constitución Política; violación del contenido en los artículos del 25 al 30, 66 y 67 del convenio No. 102 de la Organización Internacional del Trabajo (OIT) denominado Convenio Relativo a la Norma Mínima de la Seguridad Social: argumenta que las normas jurídicas impugnadas gravan las pensiones del Poder Judicial con un tributo que el legislador ha dado en llamar “Contribución Especial y Solidaria" que, por su naturaleza, resulta ser contraria a la Constitución Política y al Convenio 102 de la OIT, que habiendo sido incorporado al ordenamiento jurídico costarricense, es una norma mínima de la Seguridad Social y nunca puede ser interpretada como un máximo de aspiraciones para el país, en materia de pensiones, como considera que parece entenderlo la Asamblea Legislativa. Manifiesta que otro aspecto medular es que ningún Convenio Internacional en materia de Seguridad Social, Trabajo o Protección a la Vejez, podría ir en contra del principio de expansión y progresividad de los derechos sociales, como en apariencia fue aplicado en el proyecto de Ley N°19922. Destaca que todas las cuantías que hacen referencia al Convenio 102, están basadas en las ganancias (ingresos que recibe el trabajador activo) de un trabajador activo, que se encuentra en alta laboral y nunca en montos de pensión o jubilación, los que ya se encuentran disminuidos al momento de declararse el derecho; entonces, estima que es absolutamente arbitrario asumir que el Convenio 102 de la OIT, permite, promueve o autoriza, el rebajo de prestaciones por pensión en curso de pago.

Manifiesta que es impensable que, amparado a una norma mínima de Seguridad Social como lo es el Convenio 102 de la OIT, se pretenda justificar que las pensiones podrán ser reducidas en un 55% del monto bruto (párrafo segundo del 236 de la Ley N° 9.544); es decir, que únicamente se le garantice a la persona el disfrute de un 45% de la pensión bruta. Señala que en el análisis de las pensiones por vejez, los artículos del 25 al 30, 66 y 67 del Convenio No. 102 de la OIT, se refieren a porcentajes del salario del trabajador para el otorgamiento de una pensión, no se refiere a que las prestaciones en curso de pago (pensiones), o al hecho de que éstas fueron rebajadas al momento del otorgamiento y que puedan ser nuevamente disminuidas. Añade que tampoco autoriza dicho Convenio, que las pensiones en curso de pago, sean gravadas nuevamente con tributos especiales para contribuir al fondo -denominados contribuciones especiales y solidarias- entre otras, que impliquen como resultado final que se disminuye el monto bruto de la pensión en curso en un 55%, por lo que estima que las normas impugnadas, son contrarias al Convenio 102. Argumenta que cualquier norma legal que se dicte reduciendo pensiones en curso, como las normas impugnadas de la Ley N° 9.544, deviene en inconstitucional pues se trata de derechos jubilatorios y de pensión, que se han erigido como situaciones jurídicas consolidadas y han sido catalogados como derechos constitucionales y fundamentales por la propia Sala Constitucional y, en consecuencia, tienen un fuero de protección especial; es decir, en su criterio, pretender ajustar las normas que rigen las pensiones y jubilaciones del Poder Judicial al contenido del Convenio 102 de la OIT, como lo profesa la Ley N° 9.544, es promover la desprotección económica, social y de salud de los pensionados, jubilados y los adultos mayores, lo que es contrario, a las disposiciones del artículo 51 constitucional. Recuerda que las temáticas relacionadas con adultos mayores, cuentan con protección de los derechos constitucionales fundamentales que atañen a esa población y, por ello, tales derechos encuentran tutela en diferentes niveles de protección -constitucional, convencional y supranacional- a través de mecanismos con multinivel de protección para los adultos mayores, caracterizado por catálogos de derechos fundamentales “bill of rights", siendo los órganos jurisdiccionales los encargados de su protección.

Aunado a lo anterior, manifiesta que los adultos mayores tienen una serie de derechos inalienables por la sola condición de seres humanos; sin embargo, la doctrina diferencia entre personas adultas que son autosuficientes y aquellos que no lo son, pues en este último supuesto el grado de vulnerabilidad se acrecienta y puede ser múltiple, por lo que el nivel de protección que deben brindar las autoridades estatales y jurisdiccionales es mayor.

• c)Violación al principio de las situaciones jurídicas consolidadas, artículo 34 de la Constitución Política: argumenta que el principio de la eficacia de las normas en el tiempo se ha denominado “irretroactividad”, el cual, en Costa Rica, se encuentra tutelado en el artículo 34 de la Constitución Política, siendo que la doctrina clásica considera -genéricamente- que una norma o regla de derecho es retroactiva, o se aplica retroactivamente, cuando afecta un derecho individual, sin embargo, aduce que estas definiciones clásicas omiten la referencia al origen del derecho, así como que toda situación jurídica ha de tener sustento en una norma. Manifiesta que, desde su perspectiva, una norma será retroactiva o se aplicaría retroactivamente cuando desconozca situaciones jurídicas concretas, perfeccionadas conforme a la ley anterior, y no será retroactiva cuando la ley mantenga situaciones jurídicas, pese a haber sido reformada. Indica que en Costa Rica, la Procuraduría General de la República ha mantenido una posición cambiante que interesa destacar, así como también estima necesario mencionar la doctrina del Tribunal Constitucional Español sobre esta materia. En cuanto a la opinión de la Procuraduría General de la República sobre derechos adquiridos (doctrina española), aduce que, para definir el sentido del principio de irretroactividad de la ley como lo dispone el artículo 34 de la Constitución Política, se tiene conocimiento de que ese ente, en otras ocasiones, ha indicado que en materia del monto dinerario de las pensiones, no se aplica la irretroactividad, y lo hace fundamentándose en una sentencia de la jurisprudencia española. Aduce que, es criterio de sus representados, que tales conclusiones de la Procuraduría, se hicieron en contra de sus propios antecedentes y sin reparar en lo que se establece en el artículo 9.3 original de la Constitución Española; norma en la que únicamente se incluye la irretroactividad de las disposiciones sancionatorias, no favorables o restrictivas de derechos individuales. Es decir, señala que en la Constitución Española no se incluye el precepto como lo conoce el Ordenamiento Jurídico costarricense. Indica que el Profesor Garrido Falla enseña que la disposición equivalente al artículo 34 de la Constitución Política, se encuentra en el artículo 2.3 del Código Civil Español que dispone que "las leyes no tendrán efecto retroactivo” y alude a la complicación de interpretar el sentido de la parte final del artículo 9 de la Constitución, al señalar que la Constitución garantiza la irretroactividad de las normas restrictivas de derechos individuales y cita jurisprudencia del Tribunal Constitucional Español para concluir con la afirmación siguiente:

“Pero la retroactividad será inconstitucional sólo cuando se trata de disposiciones sancionatorias, no favorables, o en la medida que restrinja derechos individuales” (los destacados son del memorial).

En síntesis, manifiesta que la Constitución Española no se refiere a los derechos adquiridos con una norma equivalente a la de Costa Rica, siendo que para el Profesor Garrido Falla “es de suponer que los constituyentes la soslayaron...”, de manera que la valorización que se haga de instituciones constitucionales que no son equivalentes, resulta inexacta o incompleta y a veces hasta contradictoria. Añade que la Procuraduría General de la República, en el Dictamen C-063-93 del 5 de mayo de 1993, concluyó como derivación de la doctrina de Eduardo Ortiz Ortiz, que:

“Por lo tanto el derecho subjetivo se debe entender como una situación jurídica que genera un beneficio para cumplir o llenar las necesidades del derechohabiente”; “De acuerdo a lo expuesto se puede expresar que el derecho adquirido no admite incertidumbre ni eventualidad, no es una expectativa, sino más bien implica certidumbre o firmeza en su situación jurídica”; Precisamente, esa condición de certidumbre genera para el derechohabiente, la garantía del Ordenamiento Jurídico del cumplimiento del deber jurídico de la Administración de satisfacer sus necesidades en el curso de la relación de servicio que les vincula, específicamente, aquellos cuyo efecto es un beneficio patrimonial”.

Luego, indica que el Dictamen se refiere a las situaciones consolidadas y cita la Sentencia de Corte Plena, entonces encargada del control de constitucionalidad, dictada en sesiones extraordinarias del 9 de noviembre de 1982 y del 4 de marzo de 1982, para indicar: “…y es obvio que una situación jurídica no llega a consolidarse con un sentencia judicial que declare o reconozca un derecho controvertido, sino también al amparo de una norma de ley que establezca o garantice determinadas consecuencias en favor del titular de ese derecho; consecuencias que una ley posterior no puede desconocer sin incurrir en el vicio de inconstitucionalidad por infracción del artículo 34 de la Constitución Política”.

Manifiesta que este criterio de la Procuraduría se ha reiterado en el tiempo, por ejemplo, en el dictamen C-320-2006 del 9 de agosto del 2006, al expresar:

“Con fundamento en aquellos límites constitucionales, puede afirmarse entonces que en relación con los efectos de la ley en el tiempo, la regla general es la irretroactividad, entendida como el fenómeno, según el cual, la ley nueva rige todos los hechos y actos que se produzcan a partir de su vigencia, pues obviamente, si una situación jurídica se ha consolidado completamente bajo la ley antigua, no existe un conflicto de leyes, como tampoco cuando los hechos y situaciones que deben ser regulados se generan durante la vigencia de la ley nueva. La necesidad de establecer cuál es la ley que debe regir un determinado asunto, se presenta -como en este caso- cuando un hecho tiene nacimiento bajo la ley antigua, pero sus efectos o consecuencias se producen bajo la nueva o cuando se realiza un hecho jurídico bajo la ley antigua, pero la ley nueva señala nuevas condiciones para el reconocimiento de sus efectos.

La fórmula general que emana del artículo 34 constitucional para solucionar los anteriores conflictos, obviamente es la irretroactividad de la ley, ya que ella garantiza que se respeten los derechos patrimoniales legítimamente adquiridos bajo la ley anterior, sin perjuicio de que se afecten las meras expectativas de derecho, cuando se trata de situaciones jurídicas en curso, es decir, que no han generado situaciones consolidadas ni derechos adquiridos en el momento de entrar en vigencia la nueva ley; así que ésta entra a regular dicha situación en el estado en que se encuentre, sin perjuicio de que se respete lo ya surtido bajo la ley antigua.

Esto es, cuando se trata de simples expectativas, la nueva ley es de aplicación inmediata.

Aquel efecto general inmediato de la nueva ley no desconoce la Constitución, pues por consistir su aplicación respecto de situaciones jurídicas que aún no se han consolidado, no tiene el alcance de desconocer derechos adquiridos ni mucho menos situaciones jurídicas consolidadas. Es claro entonces que la norma (art. 34 constitucional) se refiere a las situaciones jurídicas subjetivas ya consolidadas, no así a las que configuran meras expectativas, pues estas, por no haberse perfeccionado el derecho, están indiscutiblemente sujetas a las futuras regulaciones que la ley introduzca”.

Indica que interesa mencionar las actas de la Asamblea Nacional Constituyente de 1949 sobre las situaciones jurídicas consolidadas y, en ese sentido, considera que la Procuraduría no debió acudir a la doctrina ajena cuando pudo haber investigado la fuente por excelencia de la Constitución Política, como lo son los debates de la Asamblea Nacional Constituyente. Recuerda que la fracción del Partido Social Demócrata presentó un proyecto de Constitución que, luego de ser discutido, fue desechado por aquélla Asamblea en la Sesión No. 52 del 8 de abril de 1949, acordándose que se utilizaría la Constitución Política de 1871 como base de discusión, siendo que en ésta, el tema de la irretroactividad de la ley, se trató en el artículo 26, que disponía, concretamente, que la “ley no tiene efectos retroactivos”. Señala que aquella Asamblea Nacional empezó el análisis de esa materia en el Acta No. 103 en la que la fracción Social Demócrata presentó una moción para que el artículo 26 se leyera así:

"La ley solo puede tener efecto retroactivo:

1. En perjuicio de derechos patrimoniales adquiridos, mediante una ley extraordinaria dictada por causa de manifiesto interés público. Cuando la retroactividad implique expropiación, se aplicará lo dicho sobre esa materia.

2. En materia penal, cuando la ley posterior favorezca al reo, aunque exista sentencia ejecutoriada, salvo el caso de delitos propios de funcionarios públicos o de delitos electorales.

3. En materia procesal, pero sin alterar la validez de las actuaciones anteriores”.

Aduce que el constituyente Vargas Fernández, fundamentándose en la doctrina de don Alberto Brenes Córdoba, propuso modificar la declaración inicial de la moción anterior para que se leyera “La ley no tiene efecto retroactivo en perjuicio de derechos adquiridos o situaciones jurídicas consolidadas. Sin embargo, se podrán exceptuar los siguientes casos: ...”; la fracción Social Demócrata decidió retirar su moción, quedando pendiente de discusión la del Diputado Vargas Fernández y se abrió un complicado debate. Indica que esa primera sesión en la que se vio el que hoy es el artículo 34 constitucional, se levantó sin haberse resuelto el tema y en el Acta 113 se retomó la discusión, los Diputados Baudrit González y Fournier presentaron una nueva moción que se iniciaba diciendo: “La ley no tiene efecto retroactivo en perjuicio del patrimonio particular ya consolidado...” y el Diputado Baudrit González, al explicar su contenido explicó diciendo “...principié enunciando lo referido al patrimonio particular consolidado, o sea a los bienes propios llegados ya, a manos de su propietario. Creo que sólo a esa materia y campo debe referirse la no retroactividad de las leyes puesto que contempla la garantía que hace inviolable la propiedad”. Manifiesta que luego de un largo debate con la participación de un nutrido grupo de Constituyentes, la moción de los Diputados Baudrit González y Fournier fue desechada; de seguido, presentaron mociones los Diputados Fournier, González Herrán y Desanti, las cuales fueron desechadas y, después de esos intentos de formar criterio mayoritario, presentó una moción el Diputado Rojas Espinoza y se levantó la sesión. Agrega que en el Acta 114 continúa la discusión del tema de la retroactividad de la ley, conociéndose una nueva moción del Diputado Rojas Espinoza, modificando el inciso 1) de las excepciones al principio de que la ley no tiene efecto retroactivo, en cuya discusión el proponente afirma que: “...era bien sabido que la ley no tiene efecto retroactivo, ya que su acción se dirige al futuro y no puede entrar a contemplar hechos pasados” y el Constituyente Castro Sibaja agregó que la excepción del inciso primero es "...inaceptable e improcedente, por los peligros que pueden significar leyes retroactivas que vengan a alterar el patrimonio adquirido o a variar sustancialmente situaciones jurídicas definitivas...” y terció el Diputado Leiva con el párrafo del Acta en el que se expresa: "Agregó que, si el compañero Rojas Espinoza adicionaba su moción en el sentido de que la retroactividad de la ley no puede afectar derechos patrimoniales adquiridos, absolutamente consolidados, la votaría con mucho gusto" y el Diputado Arias Bonilla señaló: “...que la retroactividad de la ley no puede afectar situaciones jurídicas consolidadas, lo que significaba respeto hacia el patrimonio adquirido de los costarricenses. Realmente en ninguna forma se puede ir contra un derecho patrimonial consolidado”. Indica que por fin interviene el Diputado Baudrit Solera para decir que: “Considera que con solo decir lo que con tanto propiedad afirma don Alberto (Brenes Córdoba), se soluciona el problema: “La ley no tiene efecto retroactivo en perjuicio de derechos patrimonial adquiridos o de situaciones jurídicas consolidadas” y con este texto, la Asamblea Nacional Constituyente aprobó el artículo 34, que luego en el procedimiento de depuración de la redacción, quedó con el texto actual, sea: “A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”. Considera que el resultado del análisis del proceso constituyente, resulta ser contundente: los derechos patrimoniales adquiridos o las situaciones jurídicas consolidadas, por virtud de la aplicación de una ley vigente, no pueden ser vulnerados por una ley posterior, porque ello implicaría, entre otros efectos, que la situación jurídica consolidada ha quedado incluida dentro del patrimonio de la persona y tocarlo es quebrantar el principio, también constitucional, de la intangibilidad patrimonial consagrado en el artículo 45 de la Constitución Política. Señala que es precisamente aquella prohibición constitucional la que ha sido quebrantada en la Ley N° 9.544, pues sus normas afectan situaciones jurídicas consolidadas, en perjuicio de sus representados (personas en particular), de sus derechos patrimoniales adquiridos (pensiones y jubilaciones en curso de pago previamente declaradas en firme) y situaciones jurídicas consolidadas en forma de beneficios de pensión y jubilación con tutela constitucional de los artículos 73 y 74. Manifiesta que resulta interesante traer a colación el principio de irretroactividad a la luz de las sentencias del Tribunal Constitucional Español y para ello, manifiesta que la Constitución Española de 1978 establece en su artículo 9 las denominadas garantías jurídicas, siendo de especial relevancia para la especie, las disposiciones del punto 3) de dicho artículo, según el cual, “la Constitución garantiza el principio de legalidad, la jerarquía normativa, la publicidad de las normas, la irretroactividad de las disposiciones sancionadoras no favorables o restrictivas de derechos individuales, la seguridad jurídica, la responsabilidad y la interdicción de la arbitrariedad de los poderes públicos”. Resalta que la formulación de la Constitución Española, en relación con el principio de irretroactividad de la ley, es diferente al costarricense, ya que el artículo 34 de la Constitución Política dispuso que la ley no tendrá efecto retroactivo en perjuicio de la persona o sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas; es decir, se establecen tres bienes jurídicos tutelados en la protección contra la irretroactividad. Manifiesta que, procurando armonizar ambos textos constitucionales, se puede decir que la garantía de irretroactividad en España es más restringida y tiene como límite primario los “derechos individuales” de la persona; en el caso de Costa Rica, las limitaciones impuestas por el constituyente al legislador, en cuanto al efecto retroactivo de las normas o actos, se expande además de los derechos de la “persona” (derechos primarios), a los “derechos patrimoniales adquiridos” o “situaciones jurídicas consolidadas”. Argumenta que, de acuerdo con lo anterior, no son comparables o eventualmente compatibles, las jurisprudencias del Tribunal Constitucional Español en materia de irretroactividad en el medio costarricense, salvo cuando se haga la precisión anterior, de que lo que denomina la jurisprudencia española “derechos individuales”, correspondería en Costa Rica a derechos de la “persona” y que se expande a los “derechos patrimoniales adquiridos” o “situaciones jurídicas consolidadas”, so pena de incurrir en errores conceptuales graves. Argumenta que, teniendo presente dicha diferenciación, se puede afirmar que la doctrina de la jurisprudencia española del Tribunal Constitucional, se ha decantado por proteger -en materia de seguridad social-, los derechos individuales declarados previamente por leyes anteriores ante los cambios futuros que sufran esas leyes que impliquen modificaciones de aquellos derechos para personas que aún no se acogen a un determinado seguro, pensión o jubilación. Aduce que, dicho de otra forma, si una ley anterior sirvió de base para otorgar una pensión o seguro social, es modificada posteriormente, aquellas personas que tenían un derecho individual constituido, un derecho patrimonial declarado o una situación jurídica consolidada, quedarán a salvo de la modificación, y en consecuencia se verán afectados los ciudadanos que eran cotizantes del seguro o régimen de pensión, cuyos derechos no fueron previamente constituidos. Argumenta que según la sentencia 27/1981 del Tribunal Constitucional Español, una reforma legal a un sistema de seguridad social de prestaciones mutualistas, será constitucional cuando se procura conseguir el principio de “unidad”, sin afectar situaciones jurídicas consolidadas, sin suprimir o reducir prestaciones ya consolidadas y sin disminuir prestaciones percibidas o devengadas. Manifiesta que, llevando las definiciones del Tribunal Constitucional Español a los alcances de la Ley N° 9.544, se debe decir que las modificaciones que allí se establecen, en cuanto a los montos de las pensiones o jubilaciones, tendientes a modificar “derechos individuales”, derechos de la “persona”, “derechos patrimoniales adquiridos” o “situaciones jurídicas consolidadas”, solo podrán afectar a los afiliados que no hayan consolidado su situación jurídica por cuanto no han cumplido los requisitos y se encuentra en curso de adquisición de ellos, quedando claramente fuera de los alcances de la nueva ley (Ley N°9.544), los pensionados con prestaciones en curso de pago, pues respecto de ellos existen derechos patrimoniales adquiridos o situaciones jurídicas consolidadas, previamente existentes; es decir, en su criterio, la garantía constitucional de irretroactividad supone, en cuanto al régimen de pensiones de la Ley Orgánica del Poder Judicial, que todos aquellos pensionados, con pensiones en curso o con derecho que se constituya dentro de los 18 meses posteriores a la promulgación de la Ley N° 9.544 como “derechos de pensión a una prestación actual”, no podrán verse afectados por la “contribución especial, solidaria y redistributiva” (en el tanto pase el tamiz de la constitucionalidad); siendo diferente la situación de quienes se pensionen con posterioridad a dicho plazo de 18 meses, pues lo haría al amparo de la nueva Ley N° 9.544 que sí establece -para los pensionados y jubilados- el tope en el monto de las prestaciones y la citada contribución especial. Argumenta que, cuando estén en pugna los cambios normativos con la irretroactividad, por estarse en presencia de un“ perjuicio para la persona”, o “derechos patrimoniales adquiridos”, o “situaciones jurídicas consolidadas”, aparece como paladín de la disputa el principio constitucional de la seguridad jurídica que, de manera equilibrada, permite promover en el orden jurídico, la justicia y la igualdad en libertad, lo que significa que en aras de la seguridad jurídica, resultan intangibles a una reforma no favorable o perjudicial a las personas, en el caso concreto los pensionados - accionantes, que han adquirido derechos personales, patrimoniales o situaciones jurídicas consolidadas, antes de la promulgación y entrada en vigencia de la Ley N° 9.544. Manifiesta que, aunque nadie niega que el ordenamiento jurídico es dinámico y cambiante, siempre tendrá como límite el perjuicio a las personas o derechos patrimoniales adquiridos o las situaciones jurídicas consolidadas, cuando introduzca normas no favorables, en aras de un bien superior como lo es la seguridad jurídica del ciudadano. Indica que, por ello, es evidente que los artículos 236 y 236 bis de la Ley N° 9.544, resultan inconstitucionales por violación del principio de irretroactividad del artículo 34 de la Constitución Política, en el tanto perjudican la situación jurídica consolidada, los derechos patrimoniales de los accionantes que son pensionados desde hace años o incluso para aquellos que, al amparo de la legislación recién derogada, consolidan sus derechos dentro de los 18 meses posteriores a la promulgación de la citada ley.

• d)Violación a los principios de proporcionalidad y razonabilidad, artículos 28 párrafo segundo, 41 y 74 de la Constitución Política: señala que las normas jurídicas impugnadas en esta acción, son inconstitucionales por cuanto establecen una carga económica a los jubilados y pensionados del Régimen del Poder Judicial que les obliga a cotizar con un 13% como contribución al Fondo, toda vez que impone la obligación a los pensionados de pagar un tributo llamado “contribución especial” con porcentajes que considera confiscatorios y que corren entre el 35% y el 55% de los montos que superen la base exenta que resulta ser 10 veces el salario más bajo pagado por el Poder Judicial, el cual se ha fijado en la suma de ¢413.800.00; y, además, porque pone una carga adicional de un 5 por 1.000 para el financiamiento de un órgano externo, ajeno al Poder Judicial, denominado Junta Administrativa del Fondo, la cual se crea en esta Ley. Indica que la Constitución Política contiene un conjunto de derechos individuales que desempeñan una función garantista del patrimonio económico de los individuos frente a la potestad de los poderes públicos de imponerle cargas económicas; de modo que frente al deber de los costarricenses de contribuir para los gastos públicos establecido en los artículos 18 y 121 inciso 13), 33 (igualdad), 34 (irretroactividad de la ley), 40 (no confiscación) y 45 (intangibilidad patrimonial e inviolabilidad de la propiedad privada), esas normas, principios y valores constitucionales tutelan los derechos fundamentales del individuo frente a cualquier exacción patrimonial establecida coactivamente por los poderes públicos, cuando la única razón es la arbitrariedad. Manifiesta que la Sala Constitucional desarrolló, en la década de los 90, varias definiciones sobre la razonabilidad como parámetro de constitucionalidad, resaltándose algunos otros conceptos como la razonabilidad técnica, jurídica de igualdad y en el fin; además agregó a sus razonamientos, los aportes realizados por las sentencias de la Corte Suprema de Justicia de los Estados Unidos y la doctrina alemana, que logró determinar la legitimidad, idoneidad, necesidad y proporcionalidad como componentes de la razonabilidad y a modo de ejemplo, cita la sentencia número 5236-1999 y la número 2000-2858l; por su parte, en cuanto a la proporcionalidad se hace eco del contenido de la sentencia N°5758-2018 afirmando que ahí se señalan las razones por las cuales se considera que el artículo del 236 bis se considera inconstitucional. Manifiesta que luego de reconocer que la razonabilidad es un parámetro de constitucionalidad, y aplicando el marco conceptual indicado a este asunto, se tiene que el legislador ordinario, mediante el artículo 236 bis de la Ley N°9.544, definió que un grupo de aproximadamente 130 personas tendrían que cotizar en forma adicional pagando el tributo de la contribución ordinaria que pagan todos los activos y pensionados, en el tanto de hasta un 55% del monto de pensión en curso de pago. Aduce que aquel acto legislativo, que pretendía por razones fiscales y de finanzas públicas, disminuir las pensiones para correlativamente aumentar los ingresos al fondo, debe ser analizado para determinar si dicha medida es legal, idónea, necesaria, legítima y proporcional. Señala que el artículo 121 inciso 13) de la Constitución Política, atribuye a la Asamblea Legislativa la competencia para establecer los impuestos y contribuciones nacionales y autorizar los municipales, creando un criterio diferenciador en el elemento territorial así: los tributos nacionales los establece, los de los gobiernos locales los autoriza; diferencia que está abundantemente tratada por la jurisprudencia constitucional. Indica que el artículo 4 del Código de Normas y Procedimientos Tributarios aborda el desarrollo legal de aquél inciso constitucional; norma tributaria que abarca aspectos que podrían estar en conflicto con la Constitución Política, como cambiar el calificativo de la “contribución nacional" para convertirla en “contribución especial”, y también incluye las tasas que son tributos pero no son impuestos ni contribuciones, la clasificación tripartita es, prácticamente, universal en el derecho tributario. Aunado a lo anterior, aduce que si las contribuciones nacionales o especiales son una modalidad de tributo que tienen como hecho generador el beneficio que el contribuyente obtiene de la realización de una obra pública o de actividades estatales, también es lo cierto que la llamada “Contribución Solidaria Especial” no califica bajo ninguna nominación tributaria y ello implicaría que la Asamblea Legislativa carece de competencia para aprobar leyes que crean esas contribuciones puesto que no responden a lo que el inciso 13) del artículo 121 constitucional define; en consecuencia, la contribución solidaria especial que se estableció en el artículo 236 bis de la Ley 9.544 es, por su naturaleza, abiertamente inconstitucional en su criterio. Por otra parte, señala que el artículo 236 bis de la Ley N°9.544 es un acto limitativo de derechos al establecer una contribución especial y solidaria, considerándose idóneo -por los precursores de la ley- para equilibrar actuarialmente el Fondo así como limitar el gasto fiscal que implica mantener operando dicho Fondo; sin embargo, argumenta que en realidad, el artículo 236 bis de la Ley N°9.544 es inidóneo, por cuanto restringe los derechos de los pensionados, estableciendo una contribución especial, solidaria y redistributiva, que aporta poco o nada al equilibrio actuarial del Fondo o a la limitación del gasto público, por ello no alcanza efectivamente el objetivo pretendido, según las actas de la Comisión Especial, pero además, la afectación a los derechos individuales de los pensionados, es de tal magnitud que implica que están obligados a contribuir hasta en un 55% de su monto nominal de pensión en perjuicio directo de situaciones jurídicas consolidadas y sus derechos a la dignidad, independencia, protección especial del Estado, autonomía económica. Considera que el Estado, por medio de la Asamblea Legislativa, tenía diversas opciones para alcanzar el objetivo pretendido al promulgarse la Ley N° 9.544; sin embargo, optó por aquella que lesionó de manera más directa y grosera la esfera jurídica de todos los cotizantes al Fondo, activos y pensionados. Añade que, sin perjuicio de lo anterior, el legislador ordinario optó por tomar la medida más atropellada y gravosa, imponiendo tributos exorbitantes a los pensionados, al obligarlos a contribuir en forma especial, solidaria y redistributiva, pero no sin antes aumentar la contribución ordinaria también y obligarlos a financiar la operación de una Junta Administrativa, creada dentro de la estructura del Poder Judicial. Considera que, indudablemente, la decisión no solo afectó, sino que atropelló la esfera jurídica de los pensionados y activos, a quienes se les incrementó la cotización y se les pauperizó sus pensiones futuras, todo ello de un día para otro. Considera que al promulgarse la Ley N°9.544, el objetivo pretendido por el acto legislativo estaba constitucionalmente restringido y, pese a ello, burlaron esas disposiciones para promulgar la Ley en cuestión. Recuerda que, de acuerdo con lo dispuesto por los artículos 9, 154 y 177, existe una separación de poderes entre la Asamblea Legislativa y el Poder Judicial; sin embargo, al emitirse la citada ley, dicha independencia no se respetó, pues se crearon órganos para la administración del Fondo de Jubilaciones y Pensiones del Poder Judicial, afectando la organización o funcionamiento de dicho Poder, sin realizar las consultas preceptivas que ordenaba el artículo 167 de la Constitución Política. Pero, además, señala que la intromisión del Legislativo, que constitucionalmente está prohibida, fue de tal magnitud, que quebrantó los principios constitucionales de independencia y, por ende la división de poderes. Añade que, otro aspecto que impide la legitimidad de la norma cuestionada, se encuentra en el artículo 121 inciso 13 de la Constitución Política, pues dicha norma le atribuye a la Asamblea Legislativa potestad para establecer los impuestos y contribuciones nacionales y autorizar los municipales, pero no la autoriza para fijar contribuciones especiales. Agrega que, para el caso de los pensionados, la Ley N° 9.544 perseguía limitar los montos de pensión estableciendo una contribución especial y solidaria en el artículo 236 bis, y lo hizo imponiendo una limitación sumamente gravosa, que impide que los pensionados a quienes representa, puedan disfrutar plenamente de sus pensiones con tranquilidad así como el ejercicio de sus derechos establecidos en los Convenios Internacionales para las personas adultas mayores o pensionados. Indica que no se encuentra un beneficio mayor para la colectividad, puesto que disminuir las pensiones mediante una contribución especial y solidaria, no resuelve el problema actuarial ni financiero del régimen, pero sí trastoca groseramente los derechos individuales de sus representados, quienes verán limitado su derecho al disfrute de una pensión, así como la garantía de autonomía económica en la edad adulta, y la independencia económica y social, todo ello por un acto legislativo que no cumplió con las cuatro condiciones indispensables para demostrar su razonabilidad, aunado al hecho de que los artículos de la Ley que se impugna, no resultan ser necesarios, idóneos, legítimos ni proporcionales. Considera que resulta ser irracional y desproporcionado, establecer a través de las normas impugnadas, tributos tan altos que sobrepasan casi al doble el monto máximo del impuesto de renta que pagarían las actividades lucrativas de la empresa privada, cuyo porcentaje está establecido en un 30% de los ingresos gravables, mientras que el artículo impugnado permite una deducción de hasta un 55% del monto bruto de la pensión. Recuerda que, frente a los jubilados, el Estado también tiene límites para su potestad impositiva, debiendo tenerse presente que, la pensión para un jubilado es su único ingreso y por esta razón, las obligaciones tributarias que se le imponen, deben regirse por los principios de universalidad, razonabilidad y proporcionalidad que rigen para las tasas impositivas que se fijan para salarios y ganancias (ver en tal sentido sentencia N°5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018). Manifiesta que, en línea con lo anterior, la Sala Constitucional en la Sentencia N°654-93 de las 15 horas del 21 de febrero de 1993, dispuso que no puede congelarse el monto de lo que, por causa de pensión, obtiene un funcionario, precisamente porque lo recibe a título de remuneración de servicios pasados, y en el caso de sus representados, con la aplicación de la contribución especial, se está congelando la jubilación o pensión, lo que a criterio del alto Tribunal según dicha sentencia, sería inconstitucional. Aduce que interesa destacar lo resuelto por la Sala en la sentencia de cita:

"... La jubilación es un derecho del funcionario, no una gracia. Podría decirse que constituye la cara pasiva de la relación de servicio. Y, en consecuencia, las notas fundamentales inherentes al derecho al salario también lo son de la jubilación. En un entorno económico aquejado de inflación no sería razonable congelar un salario de veinte mil colones al mes, valga el ejemplo porque tal es el "tope" fijado por la disposición tachada de inconstitucional, en especial cuando salarios similares si gozan de periódicos reajustes, según lo dispone el artículo en mención. Tampoco, entonces puede congelarse el monto de lo que, por causa de pensión, obtiene un funcionario; precisamente porque lo recibe a título de remuneración de servicios pasados. A cambio de sus servicios el funcionario activo recibe un salario. Pasado a la inactividad continúa recibiendo una remuneración, pero esta vez por servicios ya rendidos...“(los destacados son del memorial).

Argumenta que las normas impugnadas dejan la jubilación o pensión, según sea el caso, en un monto tal que se constituye “en una reducción ruinosa, pauperizante e indigna" (ver minoría en la sentencia N°5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018), si se considera que el derecho a una jubilación o pensión justa de los jubilados y pensionados, se constituye en parte del derecho humano a la seguridad social y el derecho a la jubilación, para las personas de la tercera edad, calificados así por las leyes dictadas por el Estado Costarricense, para crear los regímenes de retiro. Resumiendo su argumento en cuanto a este punto, afirma que el artículo 236 bis de la Ley N° 9.544 es:

• 1)violatorio del principio de igualdad por cuanto se está sometiendo a dicha contribución especial, solidaria y redistributiva únicamente a los jubilados y pensionados, cuya asignación mensual supere el tope que fija ex novo la ley, sea de cuatro millones cien mil colones mensuales (4.100.000,00) excluyendo a los servidores y funcionarios activos del Poder Judicial, cuyas jubilaciones o pensiones sean inferiores a ese monto. Considera entonces que se trata de una imposición muy particular a un sector especial, un grupo de la sociedad tan vulnerable, como los demás jubilados y pensionados del Poder Judicial, pues se afecta únicamente a 130 personas, en tanto en el régimen hay más de 3.900 jubilados o pensionados, es decir, la reforma se aplica a un tres por ciento del universo. Manifiesta que, lo anterior, resulta discriminatorio en los términos en que la Sala lo definió mediante sentencia N° 2003-005374 cuando indicó que: “existirá una violación a la máxima general de igualdad, cuando para una diferenciación de la ley, no cabe hallar un fundamento razonable resultante de la naturaleza de las cosas o de otras causas adecuadas, o cuando desde la perspectiva de la justicia deba caracterizarse de arbitraria tal regulación" Así no resulta justificable que, un sector de la población particularmente vulnerable, como lo son los 130 pensionados, sean sometidos a esa contribución especial.
• 2)violatorio del principio de no confiscación por cuanto los porcentajes aplicados para esa denominada “contribución especial” resultan evidentemente desproporcionados al rondar entre un 35% y un 55%, permitiendo que a cada jubilado y pensionado se le rebaje hasta un 55% del monto bruto de la pensión; porcentaje que es superior al monto máximo del impuesto sobre la renta para personas físicas y jurídicas; confiscación que el informe de la Universidad de Costa Rica recomendó “camuflar” para que no se notaran esos efectos.
• 3)violatorio del principio de razonabilidad por cuanto se trata, en el fondo, de una doble imposición: por un lado los pensionados deben pagar un 13% de su pensión para contribuir con el Fondo (según el artículo 236 impugnado), pero además están sujetos al pago de esa contribución especial, solidaria y redistributiva (conforme al 236 bis) que va desde un 35 % hasta un 55 %, que también tiene como objetivo contribuir al Fondo, siendo que, las denominaciones que se le den a la contribución, no lo eximen de los límites a los que deben estar sujetos conforme al marco del ordenamiento jurídico.

Manifiesta que, el hecho de que una persona se jubile, no deja en libertad al Estado para imponer una obligación impositiva que supere los límites tributarios de los asalariados, así que, en estos porcentajes, se evidencian desigualdades o discriminaciones ilegítimas pues el porcentaje de esta contribución supera, sobradamente, el impuesto a las personas jurídicas y a las personas físicas; estas determinaciones deben tomar en cuenta la contribución que ha hecho el funcionario judicial durante toda su vida laboral que, en promedio, es el 11 % mensual sobre el salario bruto (ver en ese sentido la sentencia N°5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018). Agrega que, con respecto a la solidaridad, se debe decir que, por el momento, el límite máximo de la solidaridad lo determinan las tasas de impuesto sobre la renta que, para las personas físicas, está tasado en un máximo de 15%; sin embargo, con la reforma al Fondo, el límite máximo tasado es de un 55% de deducción, sin que apliquen a todas las jubilaciones y pensiones, sino sólo aquellas que superen el tope establecido. Advierte que la solidaridad no es sólo una obligación de los jubilados, es de toda la población.

• e)Violación al principio de no confiscación, artículo 40 de la Constitución Política: recuerda que el artículo 40 de la Constitución Política, señala:

“Artículo 40.- Nadie será sometido a tratamientos crueles o degradantes ni a penas perpetuas, ni a la pena de confiscación. Toda declaración obtenida por medio de violencia será nula”.

Indica que el principio de no confiscación en la materia tributaria se ha considerado un principio constitucionalizado al poseer las características propias de los principios y constituir uno de los fundamentos en los cuales se sustentan los sistemas tributarios, toda vez que la confiscación -en el Derecho Administrativo- es una de las potestades ablatorias reales que poseen los Estados para privar a los particulares de sus bienes, sin justa indemnización, que lesiona el derecho a la propiedad privada con grave perjuicio al administrado. Por su parte, aduce que el principio de no confiscación constituye un límite al ejercicio del poder tributario, vinculado con los principios de capacidad contributiva y progresividad, al igual que representa un mecanismo de protección del derecho a la propiedad privada. Señala que la Ley 9.544 tiene contenido de confiscación en el patrimonio de los jubilados y pensionados, impone condiciones en cuanto aumenta en el porcentaje de contribución ordinaria al Fondo, más las cargas de ley por renta, más una contribución especial, estimando que esta variación es confiscatoria y contraria al sistema constitucional. Estima que el enfoque contenido en el artículo 40 de la Constitución Política es correcto, se trata de una sanción, y en el caso concreto es entendible cuando se parte de lo vulnerable de la población jubilada, de lo que es una pensión, así como lo que representa para la persona jubilada. Estima pertinente hacer alusión a la siguiente cita:

"El tema de la tercera edad es un tema invisible. Parecería que el envejecimiento, al igual que la muerte, es un problema de otros, nunca nuestro, a tal grado que en nuestra sociedad del siglo XXI existen dos grandes grupos desprotegidos: los niños y los ancianos. Se podría decir que, conforme envejecemos, nuestros derechos constitucionales también tienen fecha de caducidad... El envejecimiento no solo tiene efectos personales, como la disminución de las capacidades físicas y psíquicas, sino que también tiene una serie de efectos sociales que han obligado a los Estados a tomar decisiones de políticas públicas. ... Por cada día que el Estado atrasa la pensión a la persona de la tercera edad, esta debe vivir de la caridad o convertirse en un dependiente más de su familia, en especial si no tiene ahorros suficientes para superar la transición de trabajador activo a pensionado. Una vez que se acoge a la pensión no recibe salario, pero tampoco pensión, porque esta se encuentra en trámite. El Estado, en cambio, por cada día. mes o año que retarde el pago, puede utilizar esos dineros para solventar otras 'necesidades más apremiantes'. Prácticamente se trata de un enriquecimiento ilícito, pues cuando finalmente el Estado le da la pensión o la jubilación a la persona de la tercera edad, no hace ninguna indexación ni tampoco le paga intereses por el tiempo transcurrido.

En Costa Rica existe una doble injusticia. La edad promedio de vida de una persona es de 76 años; si se jubila a los 65, sabemos que prácticamente esa persona ha cotizado para un régimen de pensiones por treinta años y lo disfrutara a lo sumo diez. ... Se reconoce que el anciano tiene necesidades específicas y, sobre todo, que su dignidad no debe ser menoscabada, porque no se trata de una minoría sobreviviente, débil e improductiva, sino de seres humanos que ingresan en una nueva etapa de su vida. Por ello, se hace hincapié en la solución de problemas puntuales, como la salud, la calidad de vida, la educación, la independencia y la libertad, solo por mencionar algunas. ... Se disponía que el derecho a la pensión de retiro debía tener un mínimo equivalente a los ingresos previos, se establecía el principio de no discriminación por edad para acceder y mantener el trabajo, y nos interesa mencionar que la jubilación debía ser voluntaria y no forzosa” (Gilberth Armijo, Poder Económico y Discriminación Etaria: La Tutela del Adulto Mayor como Derecho Humano Emergente, en Anuario de Derecho Constitucional Latinoamericano. Montevideo, Uruguay. 2009) Añade que la reforma impugnada en esta acción, afecta en forma específica a los jubilados y pensionados judiciales a quienes, por el monto de los rebajos, contribuciones especiales, seguro de enfermedad e impuestos, de manera que el patrimonio de los jubilados tiende ineludiblemente a disminuir de forma progresiva y acelerada. Señala que la Corte Interamericana de los Derechos Humanos ha señalado que la edad es también una categoría protegida y que la prohibición por discriminación relacionada con la edad cuando se trata de las personas mayores, se encuentra tutelada por la Convención Americana (ver caso Poblete Vilches y otros vs Chile Sentencia del 8 de marzo de 2018). Considera que, por todas las razones expuestas, tal y como ha quedado plasmada la reforma en la Ley 9.544 que acusa de inconstitucional, efectivamente vulnera el artículo 40 de la Constitución Política porque se trata de una ley que impone una pena confiscatoria a los jubilados y pensionados del Poder Judicial, y en consecuencia -en su criterio- debe ser declarada inconstitucional.

• f)Violación al principio de la responsabilidad administrativa y de la intangibilidad del patrimonio, artículos 34, 41 y 45 Constitución Política: señala que las normas impugnadas quebrantan los principios y normas constitucionales de intangibilidad patrimonial; principio constitucional que exige que toda la lesión antijurídica por acción u omisión causada por el poder público en la esfera patrimonial o extra patrimonial del administrado, debe ser integralmente reparada, resarcida o indemnizada, independientemente que se trate de una acción lícita o ilícita -actividad formal- o de un funcionamiento normal o anormal, actuaciones y omisiones materiales. Aduce que la Sala Constitucional en la Sentencia N°5207-04 de las 14 horas 55 minutos de 18 de mayo de 2004, sostuvo:

“...El artículo 34 de la Constitución Política ampara los “derechos patrimoniales adquiridos” y las situaciones jurídicas consolidadas, los cuales solo pueden ser, efectiva y realmente, amparados con un sistema de responsabilidad administrativa de amplio espectro sin zonas inmunes o exentas cuando sean vulnerados por las administraciones públicas en el despliegue de su giro o desempeño público. EL numeral 41 ibidem, estatuye que ‘Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales (…)’, este precepto impone el deber al autor y responsable del daño de resarcir las lesiones antijurídicas efectivamente sufridas por los administrados como consecuencia del ejercicio de la función administrativa a través de conductas positivas por acción o negativas por misión de los entes públicos, con lo cual se convierte en la piedra angular a nivel constitucional para el desarrollo legislativo de un sistema de responsabilidad objetiva y directa en el cual el resarcimiento no depende del reproche moral y subjetivo a la conducta del funcionario público por dolo o culpa sino, única y exclusivamente, por habérsele infringido o recibido efectivamente, '(...) injurias o daños en su persona, propiedad o intereses morales (...)' esta es una lesión jurídica que no tiene el deber de soportar y, por consiguiente, debe serle resarcida. El numeral 41 de la Constitución Política establece un derecho fundamental resarcitorio a favor del administrado que haya sufrido una lesión antijurídica por un ente -a través de su funcionamiento normal o anormal o su conducta licita o ilícita- y la obligación correlativa, de éste de resarcirla o repararla de forma integral... se convierte así en un derecho instrumental para asegurar, forzosamente, el goce y ejercicio del derecho resarcitorio del damnificado cuando el sujeto obligado a la reparación incumpla voluntariamente con la obligación referida. El articulo 45 de la Carta Magna acoge el principio de la intangibilidad del patrimonio que ‘La propiedad es inviolable; a nadie puede privarse de la suya si no es por interés público legalmente comprobado, previa indemnización conforme a la ley (...)’ se reconoce, de esta forma, por el texto fundamental que los sacrificios especiales o las cargas singulares que el administrado no tiene el deber de soportar o tolerar, aunque devengan de una actividad licita...” (los destacados son del memorial).

Indica que los accionantes a quienes representa, han laborado al servicio del Poder Judicial por el tiempo necesario para cumplir con los requisitos del Régimen de Jubilación y, para ello, todos cotizaron de acuerdo con la Ley N° 7.333, se pensionaron bajo las condiciones dispuestas en ella, cumplieron con todos los requisitos exigidos y no obtuvieron nada fuera de la ley. Estima que no es posible que por supuestos malos manejos en las finanzas (aunque el problema es actuarial) del Estado -incluyendo el Fondo-, según lo argumentan funcionarios del Poder Ejecutivo y Legislativo en los medios de circulación nacional, ahora se quiera anclar la responsabilidad del descalabro del erario público en 130 personas jubiladas y pensionadas a quienes se les quiere menoscabar los ingresos de los beneficios de retiro, sin tomarse en cuenta que la mayoría son adultos mayores que dieron toda su vida laboral al Poder Judicial, y que el derecho lo adquirieron sin ninguna transgresión de normas y sin haber incurrido en ninguna actuación indebida. Señala que los jubilados y pensionados bajo el régimen del Poder Judicial no tienen por qué soportar la aplicación de una contribución especial, solidaria y redistributiva a la pensión que es desproporcionada y confiscatoria. Reitera que los jubilados y pensionados no tienen el deber de soportar las cargas públicas (artículo 18 y 33 de la Constitución Política), lo que significa que no debe imponérseles un sacrificio singular o especial como lo es la contribución especial y solidaria. Considera que las normas impugnadas en esta acción de inconstitucionalidad, quebrantan groseramente la Constitución Política, en cuanto imponen cargas confiscatorias al patrimonio previamente declarado con fundamento en la ley vigente en su momento, cumpliendo todos los requisitos de forma y fondo. Estima que el acervo patrimonial que constituye el monto de la pensión o jubilación de los accionantes que representa, es intangible, no susceptible a los cambios normativos futuros que impongan cargas adicionales por tratarse de situaciones jurídicas consolidadas. Añade que, en forma adicional, el acto material de disminución del monto de pensión, nunca fue notificado a cada uno de los pensionados, por lo que también se quebrantó el principio de razonabilidad que tiene amparo en los artículos 28 párrafo 2), 41 y 74 de la Constitución Política, en los términos que lo indicó la Sala Constitucional en el Voto 2002-4842 de las 16 horas con 12 minutos del 21 de mayo del 2002:

“... la Sala estima arbitrario, desde todo punto de vista, el hecho de que la Administración no le haya comunicado a la recurrente con anterioridad a la aplicación de la actuación impugnada la reducción de su salario, así como las razones que la motivaron, con lo cual la Administración violó el derecho al debido proceso de la adora. Asimismo, se considera que el rebajo que le practicó la autoridad recurrida a la promovente de 206.709.00 colones en el mes de agosto del 2001 vulnera los principios de la lógica y de razonabilidad y proporcionalidad, en tanto esa suma constituye la totalidad del salario mensual de la promovente. Lo anterior por cuanto, dicha actuación representa una situación confiscatoria que contradice, a toda luz, los principios que integran el Derecho de la Constitución...”.

• g)Violación al principio de irretroactividad, la doctrina de la supervivencia del derecho abolido, artículo 34 de la Constitución Política: manifiesta que las normas impugnadas en este proceso, atentan contra el principio constitucional derivado del numeral 34 de la Constitución Política denominado como “sobrevivencia de los derechos abolidos” cuando se está en presencia de situaciones jurídicas consolidadas; por ello se alega la aplicación y el respeto de la doctrina de la supervivencia del derecho abolido como corolario del principio de irretroactividad y que pretende que se respete la certeza de que un cambio en el ordenamiento jurídico, no puede tener la consecuencia de variar derechos adquiridos y situaciones jurídicas consolidadas. Aduce que la derogatoria de las normas, o el cambio de criterios normativos, no producen el efecto de derogar también los derechos desarrollados a favor de los ciudadanos al momento de estar vigentes esas normas. Indica que es el fenómeno jurídico que define la doctrina como la supervivencia del derecho abolido porque, para los actos o contratos en vigor, la ley derogada continúa vigente a fin de otorgar protección contra las nuevas normas jurídicas. Indica que la jurisprudencia constitucional ha señalado en sentencia número 2006-12239, en lo que interesa, lo siguiente:

“Principio de Irretroactividad. Este principio se traduce en la certidumbre de que un cambio en el ordenamiento no puede tener la consecuencia de provocar que, si se habla dado el presupuesto táctico con anterioridad a la reforma legal, ya no surja la consecuencia (provechosa, se entiende) que el interesado esperaba de la situación jurídica consolidada. Ciertamente nadie tiene un "derecho a la inmutabilidad del ordenamiento", es decir, a que las reglas nunca cambien, por eso, el precepto constitucional no consiste en que, una vez nacida a la vida jurídica, la regla que conecta el hecho con el efecto no pueda ser modificada o incluso suprimida por una norma posterior; sin embargo, una reforma que cambie o elimine la regla no podrá tenerla virtud de impedir que surja el efecto condicionado que se esperaba bajo el imperio de la norma anterior. Esto es así porque lo relevante es que el estado de cosas de que gozaba la persona ya estaba definido en cuanto a sus elementos y a sus efectos, aunque éstos todavía se estén produciendo o, incluso, no hayan comenzado a producirse. De este modo, a lo que la persona tiene derecho es a la consecuencia, no a la regla. Entonces, tal y como ha expresado la Sala en anteriores ocasiones, la derogación de las normas o el cambio de criterios normativos no producen el efecto de derogar también los derechos desarrollados a favor de los ciudadanos al momento de ser vigentes esas normas derogadas. Es el fenómeno jurídico que define la doctrina como la supervivencia del derecho abolido, porque, para los actos o contratos en vigor, la ley derogada continúa vigente para otorgar protección a esos actos y contratos contra las nuevas normas jurídicas. Pero, las nuevas situaciones jurídicas sí deberán regirse por el derecho actual y vigente por ser casos de innovación de derechos. En otros términos, el derecho abolido sigue protegiendo los actos y contratos y otros derechos adquiridos durante la vigencia de la ley. norma o acuerdo, lo que encuentra su fundamento de la relación de los artículos 34 y 129 de la Constitución”.

Indica que, en aplicación y respeto de la doctrina de la supervivencia del derecho abolido, las jubilaciones y pensiones del Poder Judicial que se obtuvieron al amparo de las disposiciones de la Ley N° 7.333 y sus reformas, deberían quedar incólumes para todos los que adquirieron ese derecho, pese al cambio legislativo que impone la Ley N° 9.544 pues, caso contrario, se estaría violando el artículo 34 de la Constitución Política y su correlacionado principio de irretroactividad.

Finaliza solicitando que, con fundamento en los argumentos expuestos en este memorial, se declare la inconstitucionalidad de la Ley 9544 de 22 de mayo de 2018 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333 Ley Orgánica del Poder Judicial de 5 de mayo de 1993 y sus reformas”, así como también que se anule del ordenamiento jurídico costarricense, quedando vigente el texto de la Ley anterior. Indica que, por quebrantar los principios constitucionales de no confiscación, igualdad, debido proceso, situaciones jurídicas consolidadas, principios de igualdad, intangibilidad del patrimonio, propiedad privada, proporcionalidad y razonabilidad, solicita que se declaren inconstitucionales y, en consecuencia se anulen del ordenamiento jurídico, las normas de la Ley 9.544 que reforma la Ley Orgánica del Poder Judicial, concretamente, las siguientes disposiciones: artículo 236 inciso 1) y penúltimo párrafo; artículo 236 bis y artículo 239.

131.- El 19 de septiembre de 2018, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así el Magistrado suplente José Paulino Hernández Gutiérrez y la Magistrada suplente Marta Esquivel Rodríguez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

132.- En resolución de la Presidencia de la Sala Constitucional -Magistrado Araya García- de las 9 horas 05 minutos del 20 de septiembre del 2018, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, y a los suplentes Hernández Gutiérrez y Esquivel Rodríguez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

133.- Mediante oficio agregado al expediente electrónico el 20 de septiembre de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6458 efectuado para la sustitución de los Magistrados y Magistradas Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes José Paulino Hernández Gutiérrez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Anamari Garro Vargas, Hubert Fernández Argüello, Alejandro Delgado Faith, Rónald Salazar Murillo, Ana María Picado Brenes, Lucila Monge Pizarro y Alicia Salas Torres.

134.- El 24 de septiembre de 2018 la Magistrada suplente Anamari Garro Vargas; el 27 siguiente la Magistrada suplente Alicia Salas Torres; el 2 de octubre posterior los Magistrados suplentes Hubert Fernández Argüello, Rónald Salazar Murillo y la Magistrada suplente Lucila Monge Pizarro; el 3 siguiente la Magistrada suplente Ana María Picado Brenes y el 9 de octubre posterior el Magistrado suplente Alejandro Delgado Faith, formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

135.- En resolución de las 8 horas 48 minutos del 17 de octubre de 2018 la Presidencia de la Sala Constitucional -Magistrado Jorge Araya García-, rechazó la gestión de inhibitoria planteada por el Magistrado suplente Delgado Faith, habilitándolo para conocer el expediente; además dispuso tener por separados del conocimiento de este proceso a los Magistrados y Magistradas suplentes Garro Vargas, Salas Torres, Fernández Argüello, Salazar Murillo, Monge Pizarro y Picado Brenes, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

136.- Mediante oficio agregado al expediente electrónico el 30 de octubre de 2018, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6571 efectuado para la sustitución de los Magistrados y Magistradas suplentes Anamari Garro Vargas, Alicia Salas Torres, Hubert Fernández Argüello, Rónald Salazar Murillo, Lucila Monge Pizarro y Ana María Picado Brenes, manifestándose que debido a que la Sala originalmente había pedido 6 suplentes y únicamente hay 3 disponibles, el sorteo se realizó con los suplentes que había disponibles, siendo seleccionados Mauricio Chacón Jiménez, Ileana Sánchez Navarro y Jorge Araya García.

137.- La Magistrada suplente Ileana Sánchez Navarro y el Magistrado suplente Mauricio Chacón Jiménez -el 31 de octubre de 2018-, presentan inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hicieron en el expediente principal 18-007819-0007-CO.

138.- La Presidencia de la Sala Constitucional ejercida por el Magistrado Araya García, en resolución de las 13 horas 48 minutos del 31 de octubre de 2018, tuvo por separados del conocimiento de este expediente a la Magistrada suplente Ileana Sánchez Navarro y al Magistrado suplente Mauricio Chacón Jiménez, y dispuso remitir el expediente a la Presidencia de la Corte Suprema de Justicia para lo que corresponda.

139.- Mediante resolución de la Presidencia de la Sala Constitucional -Magistrado Araya García- de las 14 horas 02 minutos del 31 de octubre de 2018 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, disponiéndose continuar con la tramitación del expediente.

140.- El 12 de febrero de 2019 se apersona el Magistrado Fernando Cruz Castro para manifestar que, en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

141.- Mediante resolución de las 13 horas 34 minutos del 12 de febrero de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo- y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocer de este asunto a la Magistrada suplente Marta Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

142.- Sobre la Acción de Inconstitucionalidad No. 19-001720-0007-CO. En resolución interlocutoria del Pleno de la Sala número 2019-005517 de las 9 horas 20 minutos del 27 de marzo de 2019 se ordenó acumular la acción de inconstitucionalidad 19-001720-0007-CO a la que quedó como expediente principal número 18-007819-0007-CO, y que se le tenga como una ampliación de ésta, ello por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas.

143.- Por escrito recibido en la Secretaría de la Sala a las 7 horas 59 minutos del 4 de febrero de 2019, se presenta la acción de inconstitucionalidad número 18-014168-0007-CO interpuesta por Mayra Campos Zúñiga, mayor, casada, abogada, Fiscala Adjunta del Ministerio Público y Catedrática de la Universidad de Costa Rica, vecina de Los Ángeles de San Rafael de Heredia, con cédula número 4-136-313; contra la totalidad de la Ley No. 9544 de 24 de abril de 2018 que reforma el Régimen de Jubilaciones y Pensiones del Poder Judicial contenido en la Ley Orgánica del Poder Judicial No. 7333 y específicamente contra los artículos 224 así como los Transitorios II y VI de esa Ley No. 9544. Indica que de acuerdo con lo dispuesto en el artículo 75 de la Ley de la Jurisdicción Constitucional, la legitimación para presentar esta acción proviene del recurso de amparo que interpuso, el cual se tramita bajo el expediente número 18-017019-00007-CO, y en el que se alega la inconstitucionalidad de las normas ahora cuestionadas, al cual se le dio curso mediante resolución de las 13 horas 08 minutos del 24 de enero del 2019 y que se encuentra pendiente de resolver. Manifiesta que es funcionaria judicial en el cargo de Fiscala Adjunta desde el 2 de enero de 1988 y a la fecha de presentar esta acción de inconstitucionalidad, tiene 28 años y 6 meses de servicio para el Poder Judicial. Manifiesta que, según el cálculo preliminar de su jubilación, ella adquiriría el derecho el 16 de julio del 2020 conforme a la ley 7333. Manifiesta que recibe un salario quincenal de un ¢1.468.153,45 colones y por efecto de la Ley que reformó el Régimen de Jubilaciones y Pensiones del Poder Judicial número 9544 del 24 de abril del 2018, se le hacen las siguientes rebajas mensuales adicionales: ¢ 288,421.66 (Fondo Pensiones del Poder Judicial Porcentaje Fijo) y ¢ 11,093.14 (Comisión Gastos Fondo de jubilaciones). Agrega que, además, debido a esta ley que ahora impugna, tendrá que cotizar para su pensión más que las personas funcionarias que cotizan para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social; hecho que considera abiertamente contrario al principio de igualdad declarado por el artículo 33 de la Constitución Política. Manifiesta que también deberá continuar cotizando para el régimen de pensiones del Poder Judicial aún después de pensionada, pero las personas que cotizan para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, no deberán cotizar una vez pensionados. Manifiesta que la anulación de la norma atacada en una acción de inconstitucionalidad, permitirá a la Sala Constitucional anular también los actos de aplicación individual como lo permiten los artículos 48 de la Constitución Política y 29 y siguientes de la Ley de la Jurisdicción Constitucional y, con ello, considera que se podría proteger su derecho al salario y a la pensión. Plantea los siguientes argumentos de inconstitucionalidad en cuanto a la normativa impugnada:

• 1)Vulnera el artículo 29 inciso a) del Convenio 102 de la Organización Internacional del Trabajo (O.I.T.) Derecho de pertenencia. Argumenta que ha cotizado por más de 28 años para un régimen de pensiones que le garantizaba la jubilación a los 30 años de servicio y 55 de edad; sin embargo, de forma intempestiva, con la normativa impugnada, se le modifican las reglas sin tomar en consideración los derechos adquiridos y la pertenencia a un régimen especifico. Añade que la propia Sala Constitucional, en el voto 6124-93 de las 14 horas 30 minutos del 23 de noviembre de 1993 ha reconocido que “...la pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen…”; ello supone el reconocimiento legítimo a una expectativa a jubilarse o pensionarse durante todo el tiempo en el que la persona cotiza para el régimen de pensiones. Indica que en el recurso de amparo número 99-03552-0007-CO-P en el que se conoció el conflicto presentado por una de las cotizantes del Régimen de Pensiones del Magisterio Nacional, el principal argumento que ahí se planteó fue que, durante más de 20 años, laboró para el Ministerio de Educación Pública y en ese período cotizó para el sistema bajo la Ley 2248; ley que posteriormente fue reformada por la No. 7268 y que, al momento de otorgarle su pensión, se hizo tomando como base la Ley 7531 que había entrado en vigencia en julio de 1995. Indica que, en ese asunto, la recurrente consideró que se estaban violando los derechos adquiridos bajo el amparo de la primera ley y se le otorgó audiencia a la Junta Nacional del Pensiones, la que de forma objetiva se allanó a las pretensiones de la recurrente admitiendo la existencia de derechos adquiridos. Manifiesta que al resolver el recurso planteado, la Sala reiteró la jurisprudencia sostenida en el Voto 1147-90 de las 16 horas 21 de septiembre de 1990, señalando que la pensión es un derecho fundamental y amparado en el Convenio 102 de la Organización Internacional del Trabajo, concretamente en el epígrafe 29 inciso a), considerando que la recurrente, por haber cotizado durante 20 años bajo la ley 2248, tenía un derecho adquirido a pensionarse con las disposiciones que establecía esa ley, a pesar de que ya no se encontraba vigente al momento en el que la recurrente solicitó el otorgamiento de su pensión. Sobre el particular, señala que la Sala dispuso:

“En el caso que nos ocupa, la recurrente cotizó veinte años bajo la ley 2248, como admite la Junta de Pensiones del Magisterio Nacional, adquiriendo el derecho a su jubilación conforme a esa ley, tal y como lo establece del Convenio 102 citado; aún cuando completara el resto del tiempo cuando estaba vigente la ley 7531 del trece de julio de mil novecientos noventa y cinco. En razón de lo anterior, acuerdo 3334 de la Junta de Pensiones del Magisterio Nacional y la resolución 2262-99 de la Dirección Nacional de Pensiones aplican retroactivamente dicha ley, en perjuicio de los derechos adquiridos de la recurrente, con violación de las prohibición de irretroactividad de la ley” (ver sentencia No. 6842-99 de las 8 horas 45 minutos del 03 de septiembre de 1999).

Indica que conforme con la jurisprudencia vinculante de la Sala Constitucional, el derecho a la pensión o jubilación es un derecho fundamental que se adquiere desde el momento en que se empieza a cotizar para el régimen específico de que se trate, que se concreta con el cumplimiento de los requisitos establecidos por el ordenamiento jurídico y que el acto que aprueba el beneficio posee carácter declarativo y no constitutivo, reconociendo además que existe un derecho de pertenencia cuando se ha cotizado por 20 o más años para un régimen específico. Aduce que, en su caso particular, queda claro que ha cotizado por más de más de 28 años para un régimen que le permitía jubilarse a los 30 años de servicio. Solicita que, con sustento en lo expuesto, lo estipulado en el Convenio citado y la jurisprudencia constitucional, se declare un derecho adquirido a su favor así como la pertenencia al régimen sobre el cual tenía la expectativa de jubilación.

• 2)Violación del principio de igualdad y respeto del derecho de pertenencia de las personas funcionarias del Tribunal Supremo de Elecciones que cotizan al Régimen de Pensiones y Jubilaciones del Poder Judicial, así como violación del principio de igualdad para las personas funcionarias del Poder Judicial. Indica que el artículo 33 de la Constitución Política de Costa Rica, así como el numeral 24 de la Convención Americana de Derechos Humanos, establecen el principio de igualdad como uno de los postulados fundamentales. Aduce que no cabe duda que, este principio y la no discriminación, poseen un carácter fundamental para la salvaguarda de los derechos fundamentales, tanto a nivel interno, como en el Derecho Internacional. Señala que desde el Sistema Interamericano de Derechos Humanos, se entiende por trato discriminatorio toda exclusión, restricción o privilegio que no sea objetivo y razonable, con lo cual se constituye una violación a los Derechos Humanos. Recuerda que la Sala Constitucional de Costa Rica, reiteradamente, ha sostenido que el principio de igualdad es uno de los bastiones fundamentales del ser humano y, por tanto, debe ser protegido celosamente. Al respecto, señala que en la sentencia número 5061-94 de las 17 horas 34 minutos del 6 de septiembre de 1994, se señaló la prohibición de hacer diferencias entre 2 o más personas que se encuentran en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales, reconociendo entonces, un trato igual a situaciones iguales y que se posibilita o autoriza un trato diferente, a situaciones y categorías personales diferentes. Argumenta que, ahondando sobre el tema, la Sala puntualizó: “Pero la exigencia de igualdad no legitima cualquier desigualdad para legitimar 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”. Añade que, en el mismo sentido, la sentencia número 1770-94 de las 9 horas 18 minutos del 15de abril de 1994 de la Sala Constitucional, reiteró que el principio de igualdad, “sólo es violado cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluado con relación con la finalidad y sus efectos, de tal forma que debe existir, necesariamente, una relación razonable de proporcionalidad entre fines y medios”. Añade que hay que destacar la violación de los derechos fundamentales a las personas funcionarias judiciales en el distinto tratamiento que hace el legislador respecto del tema de los derechos adquiridos en relación con los que trabajan para el Tribunal Supremo de Elecciones. Indica que conforme al mandato del artículo 129 de la Constitución Política, las leyes aprobadas por la Asamblea Legislativa “... son obligatorias y surten efectos desde el día en que ellas designen; a la falta de este requisito, diez días después de su publicación en el Diario Oficial”. Manifiesta que, en el caso de la Ley impugnada, conforme lo dispuso de manera expresa la Ley 9544 al final -sin articulado alguno-, los legisladores dispusieron su vigencia inmediata a partir de su publicación, la que se hizo en La Gaceta número 89 del 22 de mayo de 2018. Menciona que en el Transitorio VI de la citada Ley, se dispuso la siguiente previsión:

“TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N ° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

Sin embargo, considera que las razones objetivas que justificaron el derecho de pertenencia -conforme lo indicó anteriormente- son las mismas que deben justificar el trato igualitario para quienes laboran en el Poder Judicial, debiendo amparar a todas las personas servidoras que pertenecen al Régimen de Pensiones y Jubilaciones del Poder Judicial, así como para aquellas que trabajan en el Tribunal Supremo de Elecciones, reconociendo un derecho de pertenencia conforme a los límites razonables de 20 años de haber cotizado para el régimen. Aduce que el Transitorio estipula:

“TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N° 7333 Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean” (los destacados son del memorial).

Recuerda que desde hace más de 20 años, la Sala Constitucional de la Corte Suprema de Justicia, en el voto 2765-97 de las 15 horas 03 minutos del 20 de mayo de 1997, precisó el significado y alcances de algunos conceptos jurídicos fundamentales en el marco de la garantía consagrada en el artículo 34 de la Constitución Política, que dispone que “a ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”. Indica que en el pronunciamiento citado, la Sala expresó que un derecho adquirido existe cuando “una cosa -material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado en (o incidido sobre) la esfera patrimonial de la persona, de manera que esta experimenta una ventaja o beneficio constatable”; señalándose además que siempre se protege la buena fe, precisamente para garantizar la confianza legítima. Recuerda que el principio de la buena fe es de rango constitucional y obliga a que las autoridades públicas así como la misma ley, presuman la buena fe en las actuaciones particulares, pero además implica la obligación de las autoridades de actuar con buena fe en las relaciones jurídicas, y el derecho a esperar que los demás procedan de igual forma. Aduce que, en definitiva, es un principio que dispone el marco dentro del cual deben cumplirse las relaciones de los particulares con las autoridades públicas. Considera que la norma transitoria, en los términos en que se adoptó, es totalmente discriminatoria al distinguir entre los miembros del Régimen de Pensiones y Jubilaciones del Poder Judicial en cuanto a si laboran para el Poder Judicial o para el Tribunal Supremo de Elecciones y estima que no existe alguna razón, criterio de razonabilidad o, de proporcionalidad, que justifique la existencia de un trato desigual: a) argumenta que, en primer lugar, se trata de la modificación de una norma de la Ley Orgánica del Poder Judicial que era aplicable también a las personas que trabajan en el Tribunal Supremo de Elecciones, de manera que, la excepción, debe cubrir a todos a quienes se les aplicaba; b) en ambos casos se trata de funcionarios públicos; c) las funciones judiciales son evidentemente más desgastantes que las labores de ese otro órgano (TSE); d) la norma transitoria no ofrece alguna razón o justificación por la cual el régimen se mantiene para las personas funcionarias del Tribunal Supremo de Elecciones y no para los del Poder Judicial; e) no existe el menor cuestionamiento en cuanto a que las personas que laboran en el Poder Judicial, hayan actuado de buena fe. Señala que, si la normativa anterior es la misma, entonces ¿por qué crear esta odiosa diferenciación? Siendo que la ley no ofrece justificación alguna para el trato discriminatorio y violatorio del principio de igualdad. En cuanto a este punto, solicita a la Sala Constitucional realizar una interpretación conforme al Bloque de Constitucionalidad en el sentido de que el Transitorio II de la Ley número 9544, también es aplicable a las personas funcionarias del Poder Judicial, con 20 o más años de servicio, bajo los mismos argumentos planteados en el transitorio en cuanto literalmente indica: “no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe”.

• 3)No atiende a diferenciación de género en el diseño del Régimen de Pensiones y Jubilaciones establecido en la Ley número 9544, en grave y directa violación del principio de la discriminación positiva: señala que el artículo 224 de la Ley Orgánica del Poder Judicial, reformada mediante la Ley número 9544, exige la misma edad a los hombres y las mujeres servidoras judiciales para acceder a la pensión ordinaria, estableciendo para ambos, la edad cumplida de 65 años. Manifiesta que, con esta medida, los legisladores equipararon dos grupos que están en franca situación desigual, en razón del género, y con esto se incumple el principio de igualdad que no sólo obliga a atender igual las situaciones iguales y diferenciar lo que es diferente, sino también, establecer acciones positivas ante situaciones de desventaja. Manifiesta que no atender a las especiales situaciones socio-económicas y laborales de la mujer que trabaja en el Poder Judicial, contraviene el derecho fundamental a la igualdad real, el derecho a la salud y la dignidad humana, consagrados en los artículos 33 y 21 de la Constitución Política, al no aprobar el legislador, medidas de acción positiva (discriminación positiva) para paliar la situación desigual de éstas frente a los hombres. Recuerda que la Convención Sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW), ratificada por el Gobierno de Costa Rica mediante Ley número 6968 del 2 de octubre de 1984 y vigente a partir de su publicación, definió el concepto discriminación contra la mujer en los siguientes términos:

"Artículo 1:

A los efectos de la presente Convención, la expresión "discriminación contra la mujer" denotará toda distinción, exclusión o restricción basada en el sexo que tenga por objeto o por resultado menoscabar o anular el reconocimiento, goce o ejercicio por la mujer, independientemente de su estado civil, sobre la base de la igualdad del hombre y de la mujer, de los derechos humanos y las libertades fundamentales en las esferas política, económica, social, cultural y civil o en cualquier otra esfera" (los resaltados son del memorial).

Por su parte, indica que debe citarse el artículo 2 que prescribe:

“Los Estados Partes condenan la discriminación contra la mujer en todas sus formas, convienen en seguir, por todos los medios apropiados y sin dilaciones, una política encaminada a eliminar la discriminación contra la mujer y. con tal objeto, se comprometen a:

a...

• b)Adoptar medidas adecuadas, legislativas y de otro carácter, con las sanciones correspondientes, que prohíban toda discriminación contra la mujer.
• c)...
• d)Abstenerse de incurrir en todo acto o práctica de discriminación contra la mujer y velar porque las autoridades e instituciones públicas actúen de conformidad con esta obligación.
• f)Adoptar todas las medidas adecuadas, incluso de carácter legislativo, para modificar o derogar leyes, reglamentos, usos y prácticas que constituyen discriminación contra la mujer (…)” (los resaltados son del memorial).

Y en el mismo sentido, cita el artículo 11:

"1- Los Estados Partes adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo a fin de asegurar, en condiciones de igualdad entre hombres y mujeres los mismos derechos, en particular:

(...)

• e)El derecho a la seguridad social, en particular en casos de jubilación, desempleo, enfermedad, invalidez, vejez u otra incapacidad para trabajar, así como el derecho a vacaciones pagadas. (...)” (Los resaltados son del memorial) Agrega que, en igual sentido, la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém Do Para", en el artículo 6, reconoció que el derecho de toda mujer a una vida libre de violencia se traduce, entre otros, a "...ser libre de toda forma de discriminación". Manifiesta que, dicho de otra manera, toda forma de discriminación -como lo es el no reconocimiento de su condición desventajosa que afecta el derecho de igualdad-, es una forma sancionada de violencia. Añade que, tratándose del derecho jubilatorio, se impone el establecimiento de una edad diversa para el reconocimiento de la pensión ordinaria a las mujeres en relación a los hombres; diferenciación que tiene como fundamento el respeto a la igualdad de derechos entre éstos ya que, cuando se habla de derechos de las mujeres y su defensa y desarrollo, es necesario reconocer que las distintas tareas asignadas a las mujeres, las ubican en una posición de mayor vulnerabilidad y, por ende, para enfrentar esa realidad se ha recurrido a la utilización de lo que la doctrina estadounidense ha llamado acción positiva o acción afirmativa ("affirmative action"), que no es otra cosa que la aplicación de políticas o acciones para favorecer a ciertos grupos minoritarios o que históricamente hayan sufrido discriminación, con el principal objetivo de buscar el equilibrio. Señala que la propia Corte Interamericana de Derechos Humanos, en la Opinión Consultiva número 16, estableció la existencia de las denominadas “desigualdades reales”, lo que obliga a los Estados a adoptar medidas de compensación que contribuyan a reducir o eliminar los obstáculos y deficiencias que impidan o reduzcan la defensa eficaz de los intereses de la persona; lo propio ha hecho la Organización de las Naciones Unidas (ONU) al sostener que el principio de igualdad exige algunas veces que los Estados adopten acciones positivas para reducir o eliminar las condiciones que originan o facilitan la discriminación prohibida a los sectores en los que se evidencia una situación vulnerable, de allí que tanto las Naciones Unidas como la Comisión Interamericana, han reiterado la obligación de los Estados de otorgar, en situaciones concretas, preferencias en comparación con el resto de la población con el fin de corregir la discriminación de facto, existente. Manifiesta que, en el caso de la ley cuestionada, el legislador violó, por omisión, el Derecho de la Constitución al otorgar un trato paritario a 2 grupos que se encuentran en posiciones totalmente diversas. Por esa razón, solicita que, por omisión, se declare la inconstitucionalidad del artículo 224 de la Ley Orgánica del Poder Judicial, reformada mediante la Ley número 9544, al exigir la misma edad a los hombres y a las mujeres servidoras judiciales para acceder a la pensión ordinaria, estableciendo para ambos, la edad cumplida de los 65 años.
• 4)Normativa transitoria de vigencia del régimen anterior es discriminatoria al no prever la progresividad en su aplicación: señala que la modificación al régimen adoptada en la Ley número 9544, es drástica y gravosa para las personas servidoras del Poder Judicial pues, de manera tajante, se modificaron todos sus elementos de manera sustancial, en los términos indicados, sin preverse una graduación o gradualidad en su implementación, como debió haberse hecho, a fin de evitar gravísimas afectaciones, lo que ya se está viendo que está provocando la normativa impugnada en la generalidad de las personas servidoras activas, y en una menor proporción -cerca del 3%- en los pensionados o jubilados que están en el rango de montos mayores a los 4 millones de colones. Estima que el legislador debió de haber previsto medidas de gradualidad, como propusieron los gremios del Poder Judicial a la Asamblea Legislativa, a fin de compensar el sacrificio adicional que tiene que hacer la clase trabajadora con este nuevo régimen. Advierte que la Contralora General de la República, se pronunció en ese sentido cuando indicó a los diputados integrantes de la Comisión Especial e insistió en la necesidad de adoptar medidas de sanación y prevención para garantizar la sostenibilidad del régimen, conforme a la realidad socio-económica del país y de las finanzas del Estado, sin que esto se tradujera en un debilitamiento del Poder Judicial -en lo que refiere al sistema de retribución de las personas servidoras judiciales y del sistema de pensiones de la institución-, pero aclaró que tales cambios:

"... serán graduales porque estos temas son complejos. Como le decía a don Johnny, uno no puede pretender tener idealmente a todos en el mismo régimen de un año para otro, es muy complejo y requiere gradualidad y proporcionalidad” (ver Acta de sesión ordinaria número 8 de la Comisión Especial, celebrada el 16 de noviembre del 2016).

Considera que el no haber previsto la progresividad en la ejecución de estos cambios al sistema de pensiones y jubilaciones del Poder Judicial, genera una afectación especial en una colectividad del 62%, por el grave y especial daño que ya está ocasionando, el cumplimiento irrestricto de esta ley a las personas servidoras del Poder Judicial, quienes de un día para otro vieron reducidos sus salarios de manera significativa, no sólo por el aumento en la cotización al régimen, sino también por el financiamiento de la Junta de Administración. Manifiesta que, en ese sentido, con base en el estudio actuarial elaborado por la Universidad de Costa Rica -que en su producto 5 dio varios criterios de los cuales el IICE_3 y el IICE_4, no sólo sustentables sino también con superávit-, es que mediante oficio 222-P-2017 del 27 de julio del 2017, el Msc. Carlos A. Montero Zúñiga, integrante del Consejo Superior y Coordinador del Equipo Técnico del Poder Judicial, le requirió a la Comisión Especial contemplar la progresividad en la aplicación de la nueva normativa a determinar y aprobar, en los siguientes términos:

“1. El Poder Judicial recibió a satisfacción, de manera formal, el Estudio Actuarial del Fondo de Jubilaciones y Pensiones elaborado por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, que se desarrolló con la participación del conglomerado gremial del Poder Judicial como parte del Comité Ejecutivo que aprobó los productos elaborados por la Universidad de Costa Rica.

2. El estudio plantea dos marcos de solvencia actuarial IICE_3 e IICE_4, los cuales, a su vez, se desarrollaron en tres escenarios, sea el pesimista con una tasa de rendimiento del 2% normal del 3% y el optimista del 4%.

En los escenarios optimistas no sólo se supera el déficit, sino que se alcanza un superávit actuarial.

3. Conforme oficio No. 0406-FC-2017 suscrito por la Máster Floribel Campos Solano, Jefe del Departamento de (sic) Financiero Contable que adjunto del año 2000 a la fecha, el Fondo de Jubilaciones y Pensiones ha obtenido rendimientos reales del 4.64%.

Todo lo anterior, demuestra que es posible trabajar con los escenarios del 4% y que el superávit que se produce compense la introducción de graduaciones que atenúan el impacto negativo de las eventuales reformas en las personas servidoras judiciales” (Oficio 222-P-2017 y Oficio 0406-FC-2017).

Indica que este requerimiento lo reiteró en el señor Carlos A. Montero Zúñiga en oficio 223-P- 2017 del 27 de julio del 2017; no obstante, no se atendió al acatamiento de principios superiores -constitucionales- de la menor afectación del derecho, igualdad y solidaridad, según se ha explicado. En atención a este extremo, solicita que se declare la inconstitucionalidad de la normativa transitoria de vigencia del régimen anterior por considerar que es discriminatoria al no prever la progresividad en su aplicación.

• 5)Inconstitucionalidad por la omisión de consulta a instituciones autónomas: indica que se omitió efectuar consulta a la Caja Costarricense del Seguro Social de los textos sustitutivos 1 y 2, dictámenes y proyecto final con lo cual estima que se han vulnerado los artículos 73, 189, 190 de la Constitución Política. Argumenta que, en el caso concreto, la Ley denominada "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333 que es Ley Orgánica del Poder Judicial de 5 de mayo de 1993 y sus reformas” N° 9544 de 22 de mayo de 2018, en su artículo 1°, reformó el artículo 226 de la Ley Orgánica del Poder Judicial que establece funciones y competencias a dependencias de la CCSS en orden al traspaso de cuotas del Régimen de Invalidez, Vejez y Muerte que administra este órgano constitucional, para engrosar el del Poder Judicial, del siguiente modo:

“Artículo 226 - Para el cómputo del tiempo laborado no será necesario que los funcionarios hayan servido para el Poder Judicial consecutivamente ni en puestos de igual categoría. Se tomarán en cuenta todos los años de trabajo remunerado, debiendo el servidor haber servido al Poder Judicial al menos los últimos veinte años.

Se reconocerá, únicamente, el tiempo servido y cotizado en las dependencias o las Instituciones públicas estatales. En ningún caso, podrá computarse el tiempo servido en las instituciones de derecho público no estatales de base corporativa.

Si la prestación del servicio, por parte del funcionario, se dio a tiempos parciales, se reconocerá la proporción que corresponda respecto de ese salario.

Será admisible todo medio de prueba para comprobar el tiempo servido por el trabajador. Al valorar la prueba se tomará en consideración el principio in dubio pro fondo.

Si el interesado había cotizado en otros regímenes de pensiones establecidos por otra dependencia o por otra institución del Estado, el Fondo de Jubilaciones y Pensiones del Poder Judicial, al momento de otorgar la jubilación, tendrá derecho a exigir y la respectiva institución o dependencia estará obligada a girar el monto de esas cotizaciones (obrero, patronal y estatal) mediante una liquidación actuarial.

En el caso de que lo cotizado por el interesado, el patrono y el Estado no alcanzara el monto que corresponde al Fondo de Pensiones y Jubilaciones del Poder Judicial, el interesado deberá reintegrar a este la suma adeudada por las diferencias de cotización actualizadas al valor presente por el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC). Además, el interesado deberá cancelar el rendimiento real promedio que se haya obtenido sobre las sumas trasladadas, de haberlas invertido el Fondo de Jubilaciones y Pensiones del Poder Judicial durante el período reconocido” (los resaltados son del memorial).

Adicionalmente, señala que el artículo 234 reformado por la Ley N° 9544, dispone en lo conducente:

"Artículo 234- Las personas que hayan laborado en el Poder Judicial y que hayan cesado en el ejercicio de sus cargos sin haber obtenido los beneficios de jubilación o pensión no tendrán derecho a que se les devuelva el monto de las cuotas con que han contribuido a la formación del Fondo de Jubilaciones y Pensiones.

Sin embargo, sí tendrán derecho a que el monto de las cuotas obreras, patronales y estatales con que han contribuido a la formación del Fondo de Jubilaciones y Pensiones del Poder Judicial se trasladen mediante una liquidación actuarial a la Caja Costarricense de Seguro Social (CCSS), o a la institución administradora del régimen básico en el que se les vaya a otorgar la jubilación o pensión (...)” (los resaltados son del memorial).

Manifiesta que, de la literalidad de las normas transcritas se concluye claramente la posibilidad de que un funcionario del Estado que haya cotizado al Régimen de Invalidez, Vejez y Muerte de la CCSS, traslade el monto de sus cuotas de ese fondo de pensiones general -tutelado por la Constitución Política en su artículo 73- al Régimen del Poder Judicial; la CCSS tiene la nueva obligación de girar el monto de esas cotizaciones (obrero, patronal y estatal) mediante una liquidación actuarial a favor del Fondo del Poder Judicial. Añade que los artículos 227 y 233 -reformados por el supra citado artículo 1° de la Ley N° 9455-, también tienen relación con el tema, y disponen:

“Artículo 227- El servidor judicial que se incapacite de modo permanente para el desempeño de su cargo o empleo, así declarado por la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social (CCSS) o por la instancia que esa institución designe, y hubiera laborado por cinco años o más para el Poder Judicial, será separado de su puesto con una jubilación permanente. //(...)” (los resaltados son del memorial).

“Artículo 233- Se le suspenderá el goce del beneficio a la persona jubilada, durante el tiempo que esté percibiendo cualquier otro sueldo del Estado, sus instituciones y de las municipalidades.

Esta limitación no se aplicará cuando imparta lecciones en las instituciones de educación superior.

Cuando el beneficio haya sido acordado por invalidez y la persona desee reincorporarse al sector laboral, deberá solicitar el permiso respectivo y contar con la aprobación por parte de la Comisión Calificadora del Estado de la Invalidez o de la instancia que la Caja Costarricense de Seguro Social (CCSS) designe, siempre que la nueva actividad sea diferente a aquella por la cual se le declaró inválido” (los resaltados son del memorial).

Argumenta que, con esta normativa, se le atribuyeron competencias a la “Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social” sin que se le haya consultado sobre la conveniencia y oportunidad respectiva, así como también se facultó el traslado de cuotas del Régimen General de Pensiones que administra la Caja Costarricense del Seguro Social, conforme lo dispone la Constitución Política. Estima que, en razón de lo anterior, la ley impugnada es nula por inconstitucional toda vez que la consulta a la CCSS es obligatoria, a la luz de los artículos 73, 74, 188, 189 y 190 de la Constitución Política, siendo que, en el trámite legislativo de la referida ley, no se consultó a la CCSS ninguno de los textos sustitutivos aprobados por la Comisión Especial en el trámite legislativo, a saber el 13 de septiembre del 2016 y el 29 de marzo del 2017, ni tampoco del texto sustitutivo final aprobado el 29 de julio del 2017, que fuera dictaminado con criterio afirmativo de mayoría publicado en el Diario Oficial La Gaceta, Alcance N° 189 del 4 de agosto de 2017. Estima que, con lo anterior, se incumplió la regla de la consulta obligatoria exigida en los artículos constitucionales indicados, pese a que las anteriores propuestas normativas incidían en las competencias constitucionalmente asignadas a la CCSS como órgano constitucional. Argumenta que la normativa aprobada en el seno legislativo, cambió la organización y competencias de una institución autónoma, teniéndose en consideración además que, con la reforma introducida por la Ley impugnada, se puede afectar de manera directa y perjudicial el Fondo de Pensiones que administra la Caja Costarricense del Seguro Social. Aunado a lo anterior, considera la accionante que se da otra inconstitucionalidad por haberse omitido efectuar la consulta obligatoria a los bancos del Estado. En este sentido, aduce que, teniendo como base el mandato del artículo 190 de la Constitución Política, se acusa el mismo vicio que el analizado supra, sólo que ahora la omisión de consulta se dio en relación a los bancos del Estado que, por norma constitucional, son instituciones autónomas. Señala que ello es así debido a que, con la modificación del artículo 240 bis introducida por la Ley N° 9544, se afectó la autonomía de los bancos estatales, toda vez que esta norma dispone, lo siguiente:

“Dicha Junta está autorizada para colocar los recursos del Fondo de Jubilaciones y Pensiones del Poder Judicial, en las siguientes posibilidades de inversión:

• a)Hasta un veinticinco por ciento (25%) del Fondo en operaciones de crédito por intermedio de instituciones bancarias del Estado, cooperativas, cajas de ahorro, asociaciones y sindicatos de servidores, jubilados o pensionados del Poder Judicial, que cuenten con la plataforma que les permita administrar dichos recursos y estén supervisadas y autorizadas por la Superintendencia General de Entidades Financieras (SUGEF), lo anterior para financiar préstamos para construcción o mejoramiento de vivienda y otros de carácter social para sus asociados, según el reglamento que al efecto debe dictarse, así como para la compra de terrenos, ampliación, remodelación, reforzamiento y construcción de edificios destinados al Poder Judicial, conforme a la reglamentación que se emita al efecto.
• b)Al menos un treinta por ciento (30%) del Fondo, en títulos emitidos por el sector público.
• c)En instrumentos financieros emitidos por fideicomisos:
• 1)Con entidades financieras, públicas o privadas, para colocar recursos destinados a préstamos personales de microempresas y vivienda.
• 2)Con entidades financieras, públicas o privadas, para la participación en el desarrollo de provectos productivos y de infraestructura de interés nacional o social” (los resaltados son del memorial).

Aduce que esta norma establece graves limitaciones a la autonomía administrativa que constitucionalmente ejercen los bancos del Estado bajo la égida de los artículos 188, 189 y 190 Constitucionales y, en ese sentido, afirma que las reglas nuevas limitan sus posibilidades de crédito sometiéndolos a obligaciones porcentuales de inversión que afectan directamente su autonomía. Argumenta que debe tenerse en consideración que las decisiones en esta materia son técnicas y están protegidas por el régimen de autonomía bancaria; sin embargo, nada de lo regulado ni sus alcances jurídicos, financieros, contables ni de otra índole, fue consultado a las entidades bancarias que conforman el Sistema Bancario Nacional, razón por la cual, en su criterio, esta omisión hace que la totalidad de la ley sea nula, por inconstitucional, al quebrantar una vez más el mandato del numeral 190 de la Constitución Política. En razón de lo anterior, solicita que se declare la inconstitucional de la reforma aprobada por la Ley 9544, por haber violado directamente la Constitución Política al haber sido aprobada sin haber consultado a la CCSS, al Poder Judicial ni a los bancos del Estado.

• 6)Vicios de inconstitucionalidad por violación al procedimiento legislativo: manifiesta que, sobre la base de la consideración de que el Reglamento de la Asamblea Legislativa es un parámetro de constitucionalidad y, además, tiene rango constitucional, conforme a lo dispuesto en el artículo 121 inciso 22) de la Constitución Política y en el artículo 73 de la Ley de la jurisdicción Constitucional, su incumplimiento en el trámite legislativo de proyectos de ley, acuerdos y demás asuntos de su competencia del seno legislativo, se traduce en una grosera violación al bloque de constitucionalidad, y por ende, cualquier producto que no haya cumplido con la observancia al Reglamento, lo hace inconstitucional y por lo tanto, absolutamente nulo. Recuerda que este Reglamento (de la Asamblea Legislativa y sus reformas) regula el procedimiento constitucional para la aprobación de las leyes que están tuteladas bajo la égida de los artículos 73, 105,106, 119,121, 123, 124, 129, 167, 188, 189, 190 de la Constitución Política. Manifiesta que, con base en el contenido y mandato del Reglamento de la Asamblea Legislativa, vigente al momento del trámite legislativo de la que hoy es la Ley número 9544, es del criterio de que los diputados desatendieron las obligaciones que tenían en el trámite de ese proyecto de ley y, por ende, estima que existen las siguientes inconstitucionalidades: a) violación de los artículos 121 inciso 22) de la Constitución y artículos 35, 153, 205, 208 y 208 bis del Reglamento de la Asamblea Legislativa: señala que el artículo 121 inciso 22) constitucional tutela la competencia de la Asamblea Legislativa de regular su propio régimen interno y en desarrollo de esta potestad auto normativa, el "TITULO VI" relativo a "REFORMAS AL REGLAMENTO", en su artículo 207 dispone:

“ARTICULO 207. Reformas al Reglamento.

Toda reforma total o parcial a este Reglamento, así como la interpretación de cualquiera de sus disposiciones requiere, para ser aprobada, los dos tercios de votos de la totalidad de los miembros de la Asamblea.

Las reformas deberán realizarse mediante el procedimiento establecido en el artículo 124 de la Constitución Política”.

Indica que la violación o incumplimiento del reglamento legislativo, causa la nulidad por inconstitucionalidad de la ley por tratarse de un parámetro de constitucionalidad en los términos en que está establecido en el artículo 73 de la Ley de la Jurisdicción Constitucional, que dispone en su literalidad:

“Artículo 73. Cabrá la acción de inconstitucionalidad:

• a)(…)
• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa” (los resaltados son del memorial).

Manifiesta que la inconstitucionalidad acusada ocurrió porque de manera directa se vulneró el artículo 207 del Reglamento Legislativo y este vicio hace nula la Ley N° 9544, esto por cuanto, en la sesión plenaria ordinaria N° 37 de fecha 30 de junio de 2016, se conoció una moción de orden -vía artículo 208 bis- con la intención de crear un procedimiento especial para la tramitación del expediente 19.922 que se titulaba "Ley para racionalizar el gasto público”; moción de orden que fue conocida en la denominada "Segunda Parte de la Sesión" del Plenario, además de que no es posible aprobar un procedimiento especial por medio de una moción de orden. Señala que mejor comprensión de lo anterior, se debe recordar que el artículo 207 del citado reglamento, dispone en lo que interesa:

" Trámite de acuerdos parlamentarios Los proyectos, para la emisión de acuerdos concernientes al régimen interior de la Asamblea, así como los proyectos de acuerdo que deban tomarse, en uso de las atribuciones enumeradas en los incisos 2), 3), 5). 6), 7), 8). 9). 10), 12), 16), 21), 22), 23) y 24) del artículo 121 de la Constitución Política, deberán presentarse por escrito, firmados por el diputado o los diputados que los inicien o acojan; o por el Ministro del ramo, cuando el proyecto sea de iniciativa del Poder Ejecutivo. Asimismo, deberán ser leídos por la Secretaría. La Asamblea los conocerá y resolverá, sin ajustarse a los trámites previstos en el articulo anterior. (....)” (los destacados son del memorial).

Señala que la anterior disposición normativa fue interpretada por la Presidencia de la Asamblea Legislativa mediante acuerdo número 4084, adoptado en la sesión número 24 del 10 de junio de 1999 y publicado en La Gaceta N° 129 del 5 de julio de 1999; ocasión en la que estableció un procedimiento riguroso para la reforma o modificación del Reglamento de la Asamblea Legislativa, no sólo en resguardo de los principios democráticos, sino también de la publicidad, la transparencia, los derechos de las mayorías y minorías parlamentarias, ello para que se tuviera posibilidad de presentar mociones que puedan ser escuchadas, luego de lo cual votadas, y hasta recurridas, por todos los diputados integrantes de la Asamblea Legislativa, sin discriminación ni limitación alguna. Indica que las reformas al Reglamento Legislativo se llevan a cabo mediante "acuerdos", de manera que el procedimiento especial del artículo 208 bis no puede aprobarse por mociones de orden porque es una reforma al Reglamento de la Asamblea Legislativa. Recuerda que el Reglamento de la Asamblea Legislativa, en su artículo 153, permite las mociones de orden "salvo que este Reglamento lo impida expresamente", además que conforme lo dispone el artículo 35 del Reglamento Legislativo, se establece un orden riguroso en el "orden del día" del Plenario Legislativo en el que reserva, para la primera parte de la sesión entre otros asuntos, el régimen interno de la Asamblea Legislativa o, lo que es lo mismo, la interna corporis de la Asamblea, cabalmente en resguardo de la regla constitucional de la publicidad y tutela de los derechos de los propios legisladores, como lo son el derecho al voto, a la discusión, a la enmienda y participación democrática en forma amplia, pública y transparente; y se reservó la segunda parte -en exclusiva- para la discusión de los primeros y segundos debates de los proyectos de ley en trámite. Reitera que, el conocimiento y tramitación de la moción vía 208 bis del Reglamento de la Asamblea en relación al expediente N° 19.922, debió ser conocida en la “Primera Parte de la Sesión”, ello en resguardo de la regla constitucional de la publicidad y tutela de los derechos de los legisladores, como lo es el derecho de voto, discusión y participación democrática de forma amplia, pública y transparente; por el contrario, considera que haberlo hecho en la ”Segunda Parte de la Sesión" transgrede el artículo 121 inciso 22) Constitucional, toda vez que de manera directa se vulneró el artículo 207 del Reglamento Legislativo. Añade que la Presidencia de la Asamblea Legislativa, en concurso con los Jefes de Fracción proponentes de las mociones de orden, no se ajustaron al Reglamento Legislativo con tal de aprobar las mociones 208 bis tramitadas en esa ocasión, lesionando además lo dispuesto por la Ley de la Jurisdicción Constitucional que, en su artículo 73 inciso c), condiciona la legitimidad constitucional de las leyes y acuerdos legislativos al cumplimiento sustancial de lo previsto “... en el Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa”. Argumenta que, de esta manera, en el caso bajo estudio, lo violentado fue el "procedimiento legislativo" en razón del principio del paralelismo de las formas toda vez que, vía moción 208 bis, con el proyecto 19.922, se trasgredió de manera flagrante el trámite y normativa interna establecida por los propios legisladores, cabalmente en resguardo de los principios democráticos, respeto de las minorías, publicidad, transparencia, en relación al trámite del acuerdo legislativo que implica la aprobación de dicho procedimiento especial. Partiendo de lo dicho, acusa el vicio de procedimiento que genera la nulidad absoluta de todo lo actuado, por infringir los principios democráticos, de transparencia, participación, paralelismo de las formas, seguridad jurídica, confianza legítima, que deben ser respetados -sin violación alguna- por parte de la Asamblea Legislativa, por cuanto lo actuado por los legisladores no cumplió lo dispuesto en los artículos 35, 205 y 207 del Reglamento Legislativo, ni con la interpretación vigente de la Presidencia; vulnerando así los principios democráticos, de transparencia, participación y respeto a las mayorías legislativas y minorías legislativas del artículo 121 inciso 22) de la Constitución Política. Manifiesta que, por lo anterior, solicita que se declare la inconstitucionalidad de la Ley número 9544 por haber sido aprobada mediante un procedimiento legislativo viciado de inconstitucionalidad, en contravención directa y constante respecto del Reglamento de la Asamblea Legislativa. Reitera que ese trámite que se le dio a la citada Ley, es nulo por vulnerarse el procedimiento previsto por el artículo 208 bis, y porque a la vez, permitió la aprobación de una ley que creó un régimen jubilatorio desigual, desproporcionado, confiscatorio y que hace nugatorio el derecho a la jubilación, que ni siquiera es conforme con el mínimo establecido en el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. b) inconstitucionalidad por omisión de la votación calificada que era necesaria para la aplicación del procedimiento 208 bis del Reglamento Legislativo: señala que el Reglamento de la Asamblea Legislativa prevé diversos trámites legislativos como delegar la potestad legislativa en Comisiones Legislativas Plenas, el procedimiento abreviado y los procedimientos especiales del artículo 208 bis, siendo que, en relación a este último supuesto, se trata de una regulación concreta para cada caso, excepcional a los otros supuestos, cuya definición requiere del consenso de los integrantes ya que, para su instauración, se exige de mayoría calificada y condiciona que el diseño que se apruebe, debe respetar los principios democráticos -de participación y publicidad- y resguardar los derechos de los diputados, siendo que no resulta posible su aplicación para los proyectos y asuntos que deban aprobarse mediante mayoría calificada -esto es mínimo 38 votos; siendo éste el espíritu del legislador cuando aprobó el numeral 208 bis del Reglamento de la Asamblea Legislativa. Añade que la Comisión Especial que conoció las mociones de fondo presentadas al proyecto "Adición de un artículo 208 bis al Reglamento de la Asamblea Legislativa, expediente legislativo N° 15.751", rindió dictamen unánime afirmativo, exponiendo los motivos considerados para avalar ante el Plenario la propuesta, aclarando de manera contundente el tema de la mayoría de votación como elemento determinante de la aplicación del procedimiento legislativo especial -vía moción 208 bis- al disponer clara y diáfana lo siguiente:

"Por tales motivos se considera oportuno incorporar un nuevo artículo 208 bis al Reglamento de la Asamblea Legislativa, con el cual se busca que en aquellos casos en donde confluya la voluntad de la mayoría de los legisladores, sea esta decisión mayoritaria la que marque los parámetros que en cada caso se deban seguir, eso sí exceptuando de forma expresa de este procedimiento los proyectos de ley que para su aprobación requieran 38 votos así como aquellos que tengan que ver con la aprobación de contratos administrativos, la venta de activos del Estado o apertura de sus monopolios, y los tratados y convenios internacionales” (los resaltados son del memorial).

Manifiesta que, sobre la base de las anteriores discusiones, la Asamblea Legislativa aprobó el acuerdo N° 6231-04-05 el día 8 de marzo de 2005, cuyo texto final y actualmente vigente dispuso:

“ARTÍCULO ÚNICO: - Agréguese un articulo 208 bis, al Reglamento de la Asamblea Legislativa, que dirá lo siguiente:

Artículo 208 bis. - Procedimientos Especiales Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda” (los destacados son del memorial).

Indica que, de lo manifestado por los dictaminadores del proyecto de reforma del Reglamento de la Asamblea y aprobado por el Plenario Legislativo, se deduce claramente que los únicos proyectos a los cuales se les podría aplicar el artículo 208 bis -para establecer un procedimiento abreviado y especial- son aquellos que requieran únicamente una mayoría simple, así como la “aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios, y tratados y convenios internacionales”, sin importar en esta materia la votación requerida. Manifiesta que, en atención a lo anterior, la inconstitucionalidad que se acusa en relación a la Ley número 9544 es porque se aplicó el artículo 208 bis del Reglamento de la Asamblea, previsto únicamente para asuntos cuya votación requerida es la mayoría simple (mitad más uno de los legisladores presentes), sin advertir que, en este asunto, se requería de una votación adoptada por mayoría calificada (mínimo 38 votos a favor del total de los legisladores electos), ello por haber manifestado Corte Plena un criterio negativo a los textos sustitutivos adoptados por la Comisión Especial. Recuerda que, en este sentido, al tenor del mandato del numeral 167 de la Constitución Política, para separarse del criterio de Corte, los legisladores debían de votar este asunto con mayoría calificada de 38 votos. Argumenta que, en el artículo 239 de la Ley número 9544, se modificó la estructura interna del Poder Judicial, en tanto dispone en su literalidad:

“Artículo 239- Se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (CONASIF) y la Superintendencia de Pensiones (SUPEN).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley. siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley” (los resaltados son del memorial).

Señala que, conforme al contenido de esta disposición, esa Junta Administrativa se inserta en el Poder Judicial como órgano "dependiente" de Corte Plena; además, la ley le dota de personalidad jurídica suficiente para la administración del fondo, lo cual le faculta para actuar en representación del Poder Judicial en lo que refiere a las acciones del Fondo de Jubilaciones y Pensiones de este Poder. Advierte que la anterior modificación sí incide en la competencia y organización del Poder Judicial toda vez que crea una dependencia interna, además de que a esta Junta Administrativa le otorgaron autonomía jurídica instrumental frente a la Corte, que la excluye de cuestiones propias de acción del superior jerarca -en este caso de Corte- en los términos de lo dispuesto en los numerales 102 y 83 de la Ley General de la Administración Pública, a tal punto que se le dota de representación judicial y extrajudicial para actuar en nombre de este Poder (el Judicial); fenómeno jurídico que no se había dado hasta este momento. Señala que el numeral 167 constitucional previó la consulta previa y -de alguna manera- vinculante a Corte en relación a la “discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial”; criterio que sólo puede ser desatendido por los legisladores, mediante votación calificada, esto es, los dos tercios del total de los legisladores, a saber, con un mínimo de 38 votos. En este sentido, estima que no hay la menor duda de que la Sala Constitucional ha entendido que es necesaria la consulta al Poder Judicial en los términos del artículo 167 de la Constitución Política, cuando se reforme su organización administrativa y no sólo lo concerniente a la función jurisdiccional y en tal sentido, considera pertinente tener como referencia las consideraciones externadas por la Sala Constitucional en cuanto manifestó:

“... que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas...” (ver sentencia número 2008-5179 de las 11 horas del 4 de abril de 2008) (los resaltados son del memorial).

Considera que se violó el numeral 167 constitucional y la regla prevista en el 208 bis del Reglamento de la Asamblea Legislativa por cuanto se requería mayoría calificada para desatender el criterio de Corte; vicio que considera insalvable y causa la nulidad de la ley por inconstitucional. c) inconstitucionalidad por omisión, al no publicar el texto finalmente aprobado: argumenta que, ni la Comisión Especial encargada del trámite y análisis del proyecto de ley en expediente número 19.922, ni el Plenario Legislativo, publicaron los textos sustitutivos en la manera en que lo previó el procedimiento especial determinado para este asunto; así, en su criterio, se configura la inconstitucionalidad de la ley aprobada, por vicio en el trámite legislativo, en los términos establecidos en el artículo 73 inciso c) de la Ley de la Jurisdicción Constitucional en relación con el 121 inciso 22) de la Constitución Política. Señala que en la sesión número 037, del 30 de junio del 2016, se conoció y aprobó en el Plenario Legislativo la Moción de Orden según la cual, en aplicación del numeral 208 bis del Reglamento de la Asamblea Legislativa -con votación a favor de 49 votos y 1 en contra-, se aprobó un procedimiento especial o vía rápida para el trámite, discusión y dictamen del proyecto de ley tramitado en el expediente 19.922 "Ley para racionalizar el gasto público"; asimismo, se dispuso la creación de una Comisión Especial a la que se le delegó tal tarea, debiendo resaltarse que en el numeral 2 inciso h) del indicado acuerdo, expresamente se estableció la obligación -para la indicada Comisión- de publicar cualquier texto sustitutivo que aprobase en el trámite de la discusión, en los siguientes términos:

“h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto” (los resaltados son del memorial).

Agrega que el 5 de septiembre siguiente de 2016 se integró la Comisión Especial del “expediente legislativo 20.035 Encargada de conocer y dictaminar el proyecto: "Ley de reforma integral a los diversos regímenes de pensiones y normas conexas, Expediente No. 19.922"”, siendo que, desde la primera sesión de esta Comisión Especial -la número 1- del 13 de septiembre del 2016, mediante votación unánime, se sustituyó el texto base de discusión -ahora tendente únicamente a la modificación integral del Título IX de la Ley Orgánica del Poder Judicial, número 8, del 29 de noviembre de 1937 y sus reformas (primer texto sustitutivo del expediente legislativo número 19.922)-; texto base de discusión que nunca se publicó en La Gaceta a pesar de haberse variado sustancialmente, lo cual es un hecho de simple constatación entre el texto original base -según definición del Plenario- y el sustituido por la Comisión Especial. Reitera que este texto no fue publicado, como lo ordenaba la moción 208 bis que estableció su trámite y se trata de la primera omisión de publicarse en relación al primer texto sustitutivo aprobado en la Comisión Especial. Añade que, posteriormente, en la sesión ordinaria número 15 del miércoles 29 de marzo de 2017, la Comisión Especial aprobó el segundo texto sustitutivo, en esta ocasión, se trató de una propuesta preparada por la SUPEN, la cual tampoco se publicó en los términos exigidos en el inciso h) del artículo 2 de la moción de orden del 208 bis del Reglamento de la Asamblea Legislativa, que dispuso las reglas de su trámite. Agrega que, finalmente, en la sesión ordinaria número 23, celebrada el 27 de julio del 2017, la Comisión Especial aprobó moción de orden número 1-23 para dispensar de lectura el texto sustitutivo presentado; de seguido también aprobó la moción de orden número 2-23 que consistió en la aprobación del texto sustitutivo y de inmediato se dictaminó de manera afirmativa, con 8 votos y 1 en contra. Aduce que, nuevamente, se omitió la publicación de este tercer texto sustitutivo aprobado -y en este caso también dictaminado- por la Comisión. Advierte que lo que se publicó fueron los dictámenes de la Comisión Dictaminadora, no el texto sustitutivo, con lo cual, en su criterio, nuevamente se violentó lo dispuesto por la Constitución Política y el Reglamento Legislativo en cuanto al trámite que debía seguir el expediente 19.922l y recuerda que ese vicio no se pudo subsanar por el hecho de publicar el texto sustitutivo después de ser aprobado en primer debate, porque el requisito de publicación debe permitir a todos los costarricenses conocer el proyecto de ley de previo, para manifestase y opinar, como es su derecho constitucional protegido por el artículo 124 de la Constitución y el artículo 208 bis del Reglamento de la Asamblea Legislativa, en relación con el artículo 73 inciso c) de la Ley de la Jurisdicción Constitucional. Sobre el particular, menciona que en la sentencia número 2012-4621, la Sala Constitucional indicó, en lo que interesa:

"VII.- Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa, vía moción de orden del articulo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa y estricta. El procedimiento especial creado a través del articulo 208 bis, como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal, será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica (enfatizado por este Tribunal en el Voto No. 398-2005 de las 12:10 hrs. de 21 de enero de 2005) y democrático. Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.

VIII.- VICIO ESENCIAL DEL PROCEDIMIENTO DE CARÁCTER EVIDENTE Y MANIFIESTO AL OMITIRSE LA PUBLICACIÓN DE UN NÚMERO SIGNIFICATIVO DE MOCIONES DE FONDO APROBADAS EN LA COMISIÓN ESPECIAL QUE, EN CONJUNTO, MODIFICARON SUSTANCIALMENTE EL PROYECTO ORIGINAL. De otra parte, los diputados consultantes manifiestan que, pese a lo estipulado en el apartado 1.2.h., del procedimiento legislativo especial, durante su trámite se omitió publicar una serie de cambios realizados al proyecto que mermaron la expectativa total del salario escolar que se encuentra exento del pago del impuesto de la renta comprende tanto a los trabajadores públicos como a los privados.

Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original" (los resaltados son del memorial).

En consecuencia, estima que se violaron los numerales 121 inciso 22) y 124 de la Constitución Política y el artículo 208 bis de la Asamblea Legislativa, lo que -en su criterio- hace que la Ley número 9544 sea absolutamente nula en su totalidad y, por ello, solicita que se declare la inconstitucionalidad de la reforma aprobada por la Ley 9544 por no haberse publicado en el Diario Oficial La Gaceta, el texto finalmente aprobado, ni ninguno de los anteriores textos sustitutivos, en aplicación del trámite aprobado respecto del artículo 208 bis del Reglamento de la Asamblea Legislativa; igualmente, por haber violentado directamente la Constitución Política al haber sido aprobada sin una mayoría calificada de 38 votos debido a que se trató de una reforma al Poder Judicial, en los términos del artículo 167 de la Constitución Política.

• 7)Violación al principio de razonabilidad y proporcionalidad constitucionales: considera que existen varios motivos por los cuales se han vulnerado estos principios y que, en su criterio, ameritan la declaratoria de inconstitucionalidad de la ley impugnada. a) argumenta que las pensiones de las personas servidoras judiciales serán menores que las pensiones del régimen de IVM de la CCSS, por efecto de cargas desmedidas, arbitrarias y abusivas: acusa la inconstitucionalidad de la Ley 9544 por sus efectos, en su criterio, en los términos en que lo prevé el artículo 3 en relación con el 73 de la Ley de la Jurisdicción Constitucional, por cuanto las deducciones aprobadas por esta ley, son totalmente gravosas (irrazonables y confiscatorias además de lesivas al principio de igualdad) para quienes se desempeñan en el Poder Judicial. Indica que para una mejor comprensión, debe hacerse un análisis sobre las modificaciones a los elementos sustanciales del régimen y, en ese sentido, argumenta que, con la reforma introducida al Régimen de Jubilaciones y Pensiones del Poder Judicial (RJPPJ) mediante la Ley número 9544, se produjo una desproporción y, en consecuencia, un trato desigual e irracional contra las personas servidoras activas, así como también contra los pensionados y jubilados que cotizan a dicho régimen, en comparación con las personas que lo hacen para el Régimen de Invalidez, Vejez y Muerte de la CCSS. Señala que a esta conclusión se llega luego de hacer un análisis comparativo del perfil de beneficios para ambos regímenes, siendo que, sin lugar a dudas, el Régimen del Poder Judicial, ahora resulta desproporcionado e irrazonable por sus efectos, en relación con las altísimas cargas que se impone a sus cotizantes y "beneficiarios", las cuales están muy por encima de quienes cotizan al IVM de la CCSS, aunado al hecho de que a las personas del Poder Judicial se les exige la pertenencia y permanencia a un régimen durante toda su vida laboral en esa institución. Argumenta que para el caso del Régimen del Poder Judicial, al momento de la jubilación o la pensión, los beneficios a obtener son muy inferiores a los obtenidos en el IVM, afirmando que esto es así porque un 62 % del colectivo laboral del Poder Judicial, percibirá un ingreso incluso menor que si hubiese cotizado al IVM y el resto, aún y cuando en el Régimen del Poder Judicial nominalmente pueda percibir una pensión o jubilación mayor, porcentualmente es inferior, lo cual se repite por las altísimas y gravosas cargas que se imponen en este régimen, en comparación con el IVM. Añade que, con la reforma introducida mediante la Ley número 9544, se aumentó la edad de retiro hasta los 65 años de edad, con un mínimo de 35 años de servicio y con un monto bruto de jubilación equivalente al 82% de los últimos 240 salarios recibidos; con estas modificaciones, en principio, se equipararon los requisitos del Régimen del Poder Judicial al del IVM de la Caja Costarricense de Seguro Social. Argumenta que, no puede dejarse de observar que en el primero (Poder Judicial) los montos de cotización son 4 veces superiores al IVM y los beneficios son mucho menores, citando lo que establece el artículo 224 de la Ley 9544:

“Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años” (los resaltados son del memorial).

Por su parte, indica que el artículo 5 del Reglamento del Seguro de Invalidez, Vejez y Muerte establece que:

“Tiene derecho a pensión por vejez el asegurado que alcance los 65 años de edad, siempre que haya contribuido a este Seguro con al menos 300 (trescientas) cuotas” (los resaltados son del memorial).

Considera que, con meridiana claridad, se puede observar una primera diferencia entre ambos regímenes ya que, al comparar los requisitos de elegibilidad y cantidad de cotizaciones, se tiene que a los trabajadores del Poder Judicial se les solicita 2 requisitos para poder acceder a una jubilación ordinaria:

• a)Cumplir 65 años de edad (mismo requisito que en RIVM); b) ¿pero con un total de 420 cotizaciones (35 años)?

a diferencia de las personas que cotizan para el IVM donde se requiere únicamente de 300 cotizaciones; es decir, a los empleados del Poder Judicial se les solicita cotizar un 40% más que a los empleados del IVM para poder acceder a una jubilación en su modalidad ordinaria. Aunado a esto, menciona que, para calcular la asignación mensual en el Régimen del Poder Judicial, se toma en cuenta el salario promedio de los últimos 20 años (mismo requisito que en el IVM) y a ese promedio se le aplica un 82%, siendo el resultado el monto de la jubilación bruta, tal y como lo establece el propio artículo 224 de la Ley 9544; por su parte, el IVM calcula la asignación mensual de acuerdo con lo que establece el artículo 5 del Reglamento del Seguro de Invalidez, Vejez y Muerte antes mencionado, en concordancia con los artículos 24 y 25 de ese mismo reglamento, los cuales establecen:

"Artículo 24: El monto de la pensión por invalidez, vejez o muerte de un trabajador activo comprende una cuantía básica como porcentaje del salario o ingreso promedio indicado en el artículo anterior, por los primeros 20 (veinte) años cotizados (240 -doscientas cuarenta-cuotas aportadas) o los que se tuvieren en caso de invalidez o muerte, siempre y cuando se cumpla con los requisitos de los artículos 6° y 18° de este Reglamento. Para ubicar al asegurado en el nivel que se indica en la tabla siguiente, se tomará el salario o ingreso promedio de los últimos sesenta meses cotizados o los disponibles en los casos de invalidez y muerte., actualizados por inflación:

Salario o Ingreso promedio Real Cuantía Básica Menos de dos salarios mínimos 52,5% De dos a menos de tres salarios mínimos 51.0% De tres a menos de cuatro salarios mínimos 49.4% De cuatro a menos de cinco salarios mínimos 47.8% De cinco a menos de seis salarios mínimos 46.2% De seis a menos de ocho salarios mínimos 44.6% De ocho y más salarios mínimos 43.0% Tanto en el caso de vejez como de invalidez se incluye una cuantía adicional equivalente al 0,0833% sobre el salario o ingreso promedio de referencia por cada mes cotizado en exceso de los primeros 240 meses”.

Ahora bien, aduce que, a diferencia del sistema elegido en la Ley número 9544, el IVM establece un beneficio por postergación de la pensión o jubilación en los términos del numeral 25 del Reglamento, que representa un porcentaje adicional en el monto de la pensión, en los siguientes términos:

"El asegurado que cumpla los requisitos para tener derecho al disfrute de pensión por vejez, tendrá derecho a una pensión adicional por postergación del retiro, a partir de la fecha en que haya cumplido los requisitos legales y reglamentarios. Esta pensión adicional consistirá en el 0,1333% por mes sobre el salario promedio calculado según el artículo 23°.

El monto de la pensión adicional por postergación del retiro sumado al monto de la pensión ordinaria calculada según el artículo 24° de este Reglamento, no podrá exceder del 125% del salario o ingreso promedio indicado " Afirma que, al comparar ambas maneras de cálculo para la asignación del monto mensual en cada uno de los regímenes analizados, se concluye que en el Régimen del Poder Judicial se toma en cuenta el promedio de las últimas 240 cotizaciones y de ahí se aplica un 82% para determinar la asignación bruta de la jubilación; mientras que para el IVM, se toma en consideración una cuantía básica que oscila entre el 43% y el 52,5%, porcentaje al cual se le agrega un 0,0833% por cada mes cotizado a partir de la cotización mensual número 240, esto último como una bonificación por antigüedad al haberse cotizado más allá de las 240 cuotas exigidas como mínimo, además de un monto adicional por postergación -ya que en caso de ser mujer si hubiera alcanzado la edad de retiro a los 63 años y 2 meses y en caso de ser hombre a los 63 años y 3 meses-. Afirma entonces que, de esta manera, si en el Poder Judicial una persona cumple el requisito de edad (65 años) y el requisito de años de servicio (35 años), tendrá derecho a una jubilación ordinaria obtenida de aplicar un 82% al promedio de los últimos 240 salarios; por su parte, en las mismas condiciones, si una persona que cotizó para el IVM cumple el requisito de edad (65 años) y ha cotizado durante 35 años, tendrá derecho a una jubilación ordinaria obtenida al aplicarle al promedio de los últimos 240 salarios, una cuantía básica que oscila entre el 43% y el 52,5% más un 0,0833% por cada mes cotizado de más, después de las 240 cotizaciones, con lo cual, tendrá derecho a un 14,994% como una bonificación por antigüedad al haber aportado 180 cuotas de más, además de un 2,9326% en caso de ser mujer y un 2,7993% en caso de ser hombre como producto del reconocimiento por postergación. Aduce que las diferencias apuntadas se evidencian en el siguiente cuadro, que toma en consideración el Régimen de Pensiones y Jubilaciones del Poder Judicial, previo a la reforma alegada aquí de inconstitucional, así como también con la reforma y su comparación con el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social (que en los términos de la sentencia número 846-92 de la Sala Constitucional es un régimen de contenido mínimo de la seguridad social para los trabajadores permitiendo la existencia de otros regímenes en el país):

Con régimen anterior (derogado según reforma del año 1993) Con régimen Ley 9544 (nueva ley acá impugnada) Con Régimen CCSS Fondo se nutre de aportes:

Fondo se nutre de aportes:

Fondo se nutre de aportes:

- Servidor activo, pensionado y/o jubilado: del 9% al 15%, fijado últimamente en 11% - Patrono: según lo definiera Corte - Estado: 1,24% No hay aporte extra porque el fondo lo administraba el Consejo Superior - Servidor activo, pensionado y/o jubilado: 13% - Patrono 14.36% - Estado: 1.24% Aporte de 5 colones por cada 1000 de salario para financiar los gastos de la Junta de Administración creada para la administración del Fondo - Servidor activo únicamente: 3% - Patrono: 5.08% - Estado: 1.24% No hay aporte extra porque el fondo lo administra la CCSS Condiciones para la jubilación:

Presentaba 3 marcos diferentes:

Opción A:

- 30 años de servicio - pensión de hombres y mujeres a los 62 años - 100% cálculo sobre el salario de los últimos mejores 24 salarios, que con las cargas que se imponen a los pensionados y jubilados se convierte en un 84% (sin contar el pago del impuesto sobre la renta) Opción B:

- con 60 años de edad pero no de servicio: cálculo se hacía con los años de servicio dividido entre 30, porcentaje que se aplicaba a los últimos 24 mejores salarios y a este monto se le aplicaban las rebajas del 11% de cotización y 5% de seguro, lo que es igual a 66% y el pago del impuesto sobre la renta.

Opción C:

- con 30 años de servicio pero no cumple la edad (60 años): cálculo se hacía con la edad del servidor que se divide entre 60, porcentaje que se aplicaba a los últimos 24 mejores salarios; monto al que además se aplicaban las rebajas del 11% de cotización y 5% de seguro lo que es igual a 66% y el pago del impuesto sobre la renta Condiciones para la jubilación:

- 35 años de servicio en la institución - pensión de hombres y mujeres a los 65 años - 82% del promedio de los últimos 20 años de servicio (240 salarios) y que con las cargas que se imponen a los pensionados y jubilados se convierte en 66.83% (sin contar con el pago del impuesto sobre la renta) - Servidores judiciales cotizan un 40% más que el IVM de CCSS - No hay reconocimiento por antigüedad ni por postergación Condiciones para la jubilación:

- años de servicio - 65 años de edad - con 300 cuotas -82% del promedio de salario de 20 años de servicio (240 salarios sin carga social adicional), con una cuantía básica entre el 43% y el 52.5% - Hay reconocimiento por antigüedad (bonificaciones) y por postergación, a partir de la cotización 240, con un total de 420 cuotas (35 años), que se traduce en un 0.0833% por cada mes adicional cotizado - mujer: con 63 años 2 meses - hombres: con 63 años 2 meses Tope: regula mínimo a recibir - ninguna pensión puede ser inferior a la tercera parte del último sueldo del servidor, que señale el presupuesto de gastos del Estado, para el año en qu se hiciere el pago Tope: regula máximo a percibir:

Hasta 10 veces el salario más bajo del Poder Judicial Tope:

¢1.548.189,00 colones Obligaciones de los pensionados y jubilados:

- cotización al régimen: 11% (con posibilidad de llegar al 15%) - pago del seguro de enfermedad de la CCSS (5%) - pago de impuesto sobre la renta Obligaciones de los pensionados y jubilados:

- cotización al régimen: 13% - pago del seguro de enfermedad de la CCSS (5%) - pago del impuesto sobre la renta - aporte solidario a partir de la superación de tope: del 35% al 55% Pensionados y jubilados del régimen de la CCSS:

- no se contribuye al régimen - no se paga seguro por enfermedad - no se paga impuesto sobre la renta Pensión proporcional:

- mínimo 10 años de servicio para la institución, por un lapso de tiempo: la mitad del tiempo servido Pensión proporcional:

Opción A:

- si cumple 35 años de servicio, pero no tiene 65 años de edad, como mínimo se fija: hombres con 62 años y mujeres con 60 años - la pensión a recibir por las mujeres oscila entre el 61.68% y el 65.79% según la edad; monto al que hay que restarle las contribuciones al régimen, seguro, financiamiento de costos de administración y renta - la pensión a percibir por los hombres oscila entre el 63.74 % y el 65.79% según la edad; monto al que hay que restarle las contribuciones al régimen, seguro, financiamiento de costos de administración y renta Opción B:

- con 65 años de edad pero no los 35 de servicio a la institución, pero mínimo 20 años de servicio a la institución - no permite traslado de régimen del Poder Judicial al IVM de la CCSS - si permite traslado de régimen pero al momento en que se vaya a pensionar o jubilar y el monto en exceso se pasa al ROP Pensión proporcional:

No hace reconocimiento por antigüedad No hace reconocimiento por antigüedad Sí hace reconocimiento por antigüedad Indica que, de la normativa que regula el Régimen del Poder Judicial y el cuadro que antecede, en su criterio, se evidencian las siguientes premisas:

• a)que con el sistema anterior las personas servidoras judiciales no recibían el 100% del salario, como se ha divulgado falsamente en la opinión pública. Así, del cálculo de la operación resultante del promedio de los salarios base, al igual que ahora, se le hacían importantes rebajas en aplicación del principio de solidaridad: el 11% de la contribución al régimen, el 5% para el seguro de enfermedad, sin contar lo correspondiente al pago del impuesto sobre la renta; presupuesto que se daba únicamente si el servidor cumplía los presupuestos de edad (62 años) y años de servicio para la institución (30 años) y, a partir de ahí, disminuían considerablemente los porcentajes en los supuestos de sólo cumplir alguno de los presupuestos (edad o años de servicio).
• b)que con la reforma de la Ley número 9544, a simple vista pareciera que el monto del 82% que se establece como base de cálculo de la pensión o jubilación de las personas servidoras judiciales es superior a los montos dados por IVM; sin embargo, todos los pensionados del Poder Judicial poseen 3 gastos que no tienen los pensionados del IVM y son los que hacen que la reforma aplicada se convierta en desproporcional, en comparación con el IVM y que se refieren a: 1) una vez jubilada la persona, se debe cotizar al fondo un 13%, según lo exige el artículo 236 inciso 1) de la Ley número 9455 que indica: "El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos, 1) Un aporte obrero de un 13% de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y pensiones a cargo del fondo ..."; contribución a la que no se les obliga a los pensionados del IVM; 2) la cotización al Régimen de Salud administrado por la CCSS (5%), el cual no es aplicado a los pensionados del IVM ya que reglamento IVM, en su artículo 3 establece que: "El costo del aseguramiento en el Seguro de Salud para los pensionados del Seguro de Invalidez, Vejez y Muerte será asumido en su totalidad por el Fondo de Pensiones de Invalidez, Vejez y Muerte, la Junta Directiva será quien determine el porcentaje por aplicar con base en las recomendaciones actuariales"; 3) el cobro del 5 por mil para los gastos de la Junta de Administración, de acuerdo con lo que regula el artículo 239 reformado, que indica: "...Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo..."; y un gasto adicional 4) que es el cálculo del impuesto sobre la renta, siendo éste el único presupuesto que también aplica, cuando proceda en relación al monto, a los pensionados del IVM. Argumenta que, de lo anterior se desprende que el 82% que se le asigna a un trabajador, sin la penalización del artículo 224 bis, implicaría que el monto se reduciría en un 0.41% (cinco por mil del 82% por gastos de financiamiento para la Junta de Administración), un 10.66% (13% de cotización al régimen) y un 4.1% (5% de la cotización al Seguro de Enfermedad y Maternidad), finalizando el monto neto en un 66.83% a los 65 años con 35 años de servicio, recordando que, para ambos regímenes según su monto de pensión, también aplicaría el impuesto de la renta. Señala que, de esta manera, con la ejecución del régimen en los presupuestos de 35 años de servicio y 65 años de edad, la persona percibiría un ingreso neto del 66.83%, para lo cual, se le impone una cotización del 40% más que en el Régimen del IVM, el cual no se puede olvidar que es una garantía mínima del derecho a la jubilación, en los términos indicados por la Sala Constitucional. En su criterio, es más que evidente que este cálculo no pasa el tamiz de razonabilidad ni de igualdad si se comparan las cargas indicadas frente al régimen mínimo de la Caja Costarricense del Seguro Social, en el cual, a pesar de que se le exige al servidor una contribución del 3%, éste recibe una pensión entre el 43% y el 52.5% del promedio de los últimos 240 salarios, con posibilidad de recibir bonificaciones de postergación por cada mes que atrase la pensión y/o jubilación, además de que se trata de un régimen que no tiene ninguna contribución adicional. Argumenta que, esa comparación demuestra, a simple vista, lo irrazonable y desproporcionado del Régimen de Jubilaciones y Pensiones que ahora le ha sido impuesto a los servidores judiciales conforme a la ley impugnada, e insiste en que éstos cotizan el 40% más que los trabajadores afiliados al IVM de la Caja Costarricense del Seguro Social; sin embargo, con todas las contribuciones y rebajas que se imponen a los servidores del Poder Judicial, percibirán menos que los que pertenecen al IVM, y esto sin contar el aporte para el financiamiento de la Junta Administrativa del Fondo. Añade que, por el otro lado, si un trabajador perteneciente al IVM se pensiona con 35 años de servicio, su cuantía aumenta por dos razones: la primera es la bonificación de antigüedad (exceso de las 240) que llegarían a un 14.994% (180 cotizaciones sobre las 240 multiplicadas por 0,0833%) y la otra razón es la bonificación por postergación ya que en caso de ser mujer hubiera alcanzado la edad de retiro a 63 años y 2 meses y de un hombre a los 63 y 3 meses; en otras palabras, si el trabajador es una mujer y postergó 22 meses y si es un hombre 21 meses, les acredita -según el artículo 25 del Reglamento del IVM- un 0,1333% por cada mes trabajado, lo que significa que su cuantía aumentaría un 2,9326% en caso de una mujer y un 2,7993% en caso de hombre, de manera que, dependiendo de sus últimos salarios, su cuantía base variaría entre un 43% y un 52,5% más las bonificaciones por antigüedad y postergación, con lo cual, la cuantía en igual condiciones de retiro para una mujer que se retiraría a los 65 años con 35 años de servicio en el IVM rondaría entre un 60,9266% y 70,4266%, en caso de un hombre ésta variaría entre un 60,7933% y un 70,2933%. Como se muestra en el siguiente cuadro:

Cuantía Régimen Poder Judicial (RJPPJ) vrs Régimen de CCSS (RIVM) 65 años con 35 años de servicio Estimación de Pensión RJPPJ RIVM Cuantía Base 82 % 43 % a un 52,5% Menos: Contribución al Fondo 10.66 % No tiene Menos: Gasto administrativo 0,41 % No tiene Menos: Cotización a salud 4,1 % No tiene Más: Bonificación por antigüedad No tiene 14.994% Más Bonificación por postergación No tiene 2.9325% si es mujer 2,7993% si es hombre Total de la cuantía 66.83% 60.9266% a un 70.4266% a mujer 60.7933% a un 70.2933% a hombre Manifiesta que, lo anterior significa que hay casos donde la pensión del IVM es superior a la del Régimen del Poder Judicial ya que el IVM otorgaría neto, una cuantía mayor -según la tabla del artículo 24 del Reglamento IVM- y serían justamente aquellas personas con 5 o menos salarios mínimos en los últimos 5 años de servicio, que a la fecha, según información de la página de la CCSS, es de ¢251.801.00 colones; es decir, con base en el artículo 24 del reglamento del IVM, serían aquellas personas con un promedio salarial en los últimos 5 años inferior a los ¢1.259.005.00. Argumenta que, al ser un horizonte tan largo (20 años), para referenciar el monto de la pensión, éste realmente refleja los salarios de la vida laboral de un trabajador, logrando que la pensión sea acorde a lo aportado; pero a su vez, esta metodología brinda un promedio mucho más bajo que los últimos salarios, ya que normalmente a lo largo de la vida laboral de una persona, ésta recibe promociones o ascensos de categorías u otros cambios labores y salariales, por lo que sería erróneo hacer una referencia al último salario de la persona sin conocer su pasado salarial. Aduce que, a pesar de esto, lo que sí se puede observar es que, en la actualidad y de acuerdo con datos oficiales suministrados por el Departamento de Gestión Humana del Poder Judicial, cerca del 62% de los trabajadores ganan menos de dicho salario, (¢1.259.005.00), lo que hace pensar que un porcentaje de trabajadores muy superior a ese porcentaje, tendría montos de jubilación menores a los que otorgaría el IVM, si se toma en cuenta que el monto de referencia sería el promedio de los últimos 240 salarios y no el salario actual. Explica que en los siguientes cuadros comparativos de la asignación mensual bruta y neta de ambos regímenes, se visualiza claramente la disminución en las asignaciones netas otorgadas a los cotizantes bajo el Régimen del Poder Judicial, aún y cuando éstos aportan 4 veces más que los del Régimen del IVM.

Cuadro Nº 1 Salario Promedio de ¢500.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢500.000 82% ¢410.000 ¢20.500 ¢55.350 ¢ 0 ¢334.150 IVM (mujer) (hombre) ¢500.000 ¢500.000 70,4226% 70,2893% ¢352.133 ¢351.466 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢352.133 ¢351.466 Diferencia:

Mujer Hombre - ¢17.983 - ¢17.316 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 52,5% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 52,5% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 2 Salario Promedio de ¢750.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢750.000 82% ¢615.000 ¢30.750 ¢83.025 ¢ 0 ¢501.225 IVM (mujer) (hombre) ¢750.000 ¢750.000 68,922% 68,789% ¢516.950 ¢515.950 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢516.950 ¢515.950 Diferencia:

Mujer Hombre - ¢15.725 - ¢14.725 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 51% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 51% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 3 Salario Promedio de ¢1.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢1.000.000 82% ¢820.000 ¢41.000 ¢110.700 ¢ 0 ¢668.300 IVM (mujer) (hombre) ¢1.000.000 ¢1.000.000 67,3226% 67,1893% ¢673.266 ¢671.933 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢673.266 ¢671.266 Diferencia:

Mujer Hombre - ¢4.966 - ¢3.633 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 49,4% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 49,4% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 4 Salario Promedio de ¢1.500.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢1.500.000 82% ¢1.230.000 ¢61.500 ¢166.050 ¢ 44.650 ¢957.800 IVM (mujer) (hombre) ¢1.500.000 ¢1.500.000 70,4226% 70,2893% ¢961.900 ¢959.900 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 16.290 ¢ 16.090 ¢945.610 ¢943.810 Diferencia:

Mujer Hombre + ¢12.190 + ¢13.990 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 46,2% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 46,2% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 5 Salario Promedio de ¢2.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢2.000.000 82% ¢1.640.000 ¢82.000 ¢221.400 ¢ 106.150 ¢1.230.450 IVM (mujer) (hombre) ¢2.000.000 ¢2.000.000 60,9226% 60,7893% ¢1.218,532 ¢1.215.866 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 42.930 ¢ 42.530 ¢1.175.602 ¢1.173.336 Diferencia:

Mujer Hombre + ¢54.848 + ¢57.114 El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) Cuadro Nº 6 Salario Promedio de ¢3.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢3.000.000 82% ¢2.460.000 ¢123.000 ¢332.100 ¢ 229.150 ¢1.775.750 IVM (mujer) (hombre) ¢3.000.000 ¢3.000.000 60,9226% 60,7893% ¢1.548.189 ¢1.548.189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92.378 ¢ 92.378 ¢1.455.810 ¢1.455.810 Diferencia:

Mujer Hombre + ¢329.940 + ¢329.940 1. El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) 2. Con este salario promedio, el Régimen del IVM pone un tope a la pensión de ¢1.548.189.00, el cual se ajusta cada semestre.

Cuadro Nº 7 Salario Promedio de ¢4.000.000 colones 65 años de edad y 35 años de servicio Régimen Promedio últimos 240 salarios % Asignación bruta Enfermedad y Maternidad (5%) Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000 Impuesto de Renta Asignación Neta Poder Judicial ¢4.000.000 82% ¢3.280.000 ¢164.000 ¢442.800 ¢ 352.150 ¢2.321.050 IVM (mujer) (hombre) ¢4.000.000 ¢4.000.000 60,9226% 60,7893% ¢1.548.189 ¢1.548.189 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 92.378 ¢ 92.378 ¢1.455.810 ¢1.455.810 Diferencia:

Mujer Hombre + ¢865.240 + ¢865.240 1. El porcentaje del RIVM se obtiene de la siguiente forma:

0. Mujer: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,9326% (bonificación por postergación) 1. Hombre: 43% (cuantía básica) + 14,99% (bonificación por antigüedad) + 2,7993% (bonificación por postergación) 2) Con este salario promedio, el Régimen del IVM pone un tope a la pensión de ¢1.548.189.00, el cual se ajusta cada semestre.

Continúa indicando que, de la comparación anterior, se logra concluir lo siguiente:

• a)queda en evidencia que sobre aquellos salarios cuyo promedio mensual de los últimos 20 años sea inferior a los 1.5 millones de colones, existe un cuantioso perjuicio económico para los empleados del Poder Judicial, ya que los cotizantes bajo este régimen, deben mes a mes aportar 4 veces más que los cotizantes al IVM, siendo que los beneficios otorgados bajo el Régimen del Poder Judicial, son muy inferiores a los del Régimen del IVM; b) el Régimen de Jubilaciones y Pensiones del Poder Judicial es realmente más gravoso que el IVM en tanto el primero tiene como referentes a personas que cumplan los requisitos de 65 años de edad y 35 años de servicio; no obstante, no puede dejarse por fuera que en la institución hay muchas personas funcionarias que ingresan a trabajar desde muy jóvenes, incluso a los 18 años de edad, por lo que si se compara esta situación con los beneficios que recibiría en el IVM, las diferencias serían aún mayores y, en consecuencia, el perjuicio al pertenecer al Régimen del Poder Judicial sería también mayor ya que éste no contempla -dentro de su normativa- incentivos por antigüedad, ni postergación, tal y como si lo contempla del IVM. Indica que, a manera de ejemplo, puede indicarse que si una persona ingresa al Poder Judicial a los 18 años y permanece hasta los 65 años (fecha en que puede acogerse a la jubilación), habrá cotizado un total de 47 años para el fondo, pero tendría los mismos beneficios que un funcionario que ingrese a laborar a los 30 años de edad, o sea sus cotizaciones servirían para subsidiar a las personas que laboren durante menos tiempo para la institución y, en consecuencia, coticen menos para el fondo. Admite que el Régimen de Jubilaciones y Pensiones del Poder Judicial requería ajustes que le permitieran garantizar las actuales y futuras asignaciones y por ello fue el propio colectivo judicial -representado por lo que se denominó el “Frente Gremial”- el que planteó desde hacía varios años, la importancia de realizar dichos ajustes, proponiendo incluso un proyecto de ley equilibrado que se ajustara al requerimiento de todos los intervinientes; sin embargo, estima que el régimen aprobado, no atiende a las variables y principios que rigen la materia de seguridad social, como se acredita en las conclusiones del estudio realizado por el actuario matemático Esteban Bermúdez quien, concluyó:

Conclusión 1. La fórmula de cálculo de pensión del Poder Judicial no posee reconocimientos por antigüedad como lo son la bonificación y la postergación -lo que no estimula al trabajador a laborar más tiempo-, siendo que esto genera un aumento de los pasivos de fondo y montos de pensión más bajos; además de que, que para alcanzar un derecho de pensión ordinario el Régimen del Poder Judicial, se requiere un 40% de cotizaciones más que el IVM, es decir, 10 años más de servicio.

Conclusión 2. Aproximadamente el 62% de los trabajadores del Poder Judicial poseen salarios inferiores a ¢1.259.005.00 lo que generaría en esta población, derechos jubilatorios inferiores a los que otorga el IVM, lo anterior si se toma en cuenta que éste sea el salario promedio de los últimos 240 meses.

Conclusión 3. La Reforma del Régimen del Poder Judicial genera pensiones similares a las del Régimen del IVM; sin embargo, para los salarios más bajos del Poder Judicial, estas pensiones podrían llegar a ser menores que las del IVM, por lo que resulta que la reforma no sea ni atractiva, ni competitiva, ni rentable para estos trabajadores.

Conclusión 4. Con la estructura actual de otorgamiento de pensión, se incentiva el retiro anticipado antes de los 62 años, lo que genera un aumento en los pasivos actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial.

Conclusión 5. Una cotización tripartita del 28,6% para el Régimen del Poder Judicial y de un 13% para el obrero, son 281,5% y 338,5% mayores respectivamente a sus similares del IVM, aunque para la mayoría de trabajadores judiciales, su pensión será inferior a la otorgada por la CCSS; es decir, no existe una relación, o bien, ésta es desproporcionada entre el monto cotizado y monto de pensión a otorgar. Manifiesta que, así las cosas, se rompen los principios de solidaridad tanto inter generacional como intra generacional al momento en que el trabajador puede retirar los dineros, como si no existiese el apoyo a las poblaciones pensionadas; además, por su naturaleza parafiscal, las cotizaciones, no pueden ser consideradas parte del patrimonio del trabajador sino de la colectividad, con un fin definido, por lo que el traslado de cotizaciones a un fondo privado e individual, es contrario al fin por el cual estas cotizaciones fueron creadas.

Indica que, el experto Esteban Bermúdez Aguilar dijo:

"Para finalizar este análisis, la unión de los bajos o similares beneficios que otorga la actual reforma junto con la posibilidad trasladar cotizaciones IVM con la respectiva privatización de la diferencia de cotización al ser trasladadas al ROP, abre una posibilidad siniestra donde los trabajadores al alcanzar las cotizaciones necesarias en el IVM, decidan renunciar al Poder Judicial, laborar independientemente y cotizar en el IVM por un plazo determinado tiempo, solicitar traslado y así acceder a una pensión por IVM, pero como ROP mayor, generándole una pensión complementaria mayor a Acosta (sic) del debilitamiento el fondo del RJPPJ".

Agrega que ese profesional advirtió que "Actualmente el IVM, no exige mínimos de pertenencia en ese régimen para trasladar cotizaciones”. Manifiesta que, el régimen de Jubilaciones y Pensiones del Poder Judicial definido en la Ley número 9544, premia con una mejor pensión relativa a los salarios más altos y otorga pensiones de menor cuantía a los salarios más bajos de la mayoría de trabajadores del Poder Judicial, con lo cual, se establece así un beneficio mucho menor que si hubiesen cotizado para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social -según los cuadros insertos-, para los puestos más bajos del Poder Judicial y, se mantiene una condición de privilegio, para los puestos de alta gerencia de la institución. Argumenta que lo anterior rompe los principios de la seguridad social de la redistribución y solidaridad de las pensiones, entendido como el modo en que un régimen de pensiones distribuye los montos ahorrados entre sus afiliados, de tal manera que sea considera justa o conveniente; en consecuencia, considera que en el caso concreto, se ha creado un régimen desigual y discriminatorio. b) de la falta de proporcionalidad en sentido estricto de la normativa aprobada en la Ley 9544: considera que se da otra vulneración a los principios de razonabilidad y proporcionalidad por cuanto, al momento de iniciarse el trámite y discusión de las reformas al Régimen de Jubilaciones y Pensiones del Poder Judicial, ninguna de las propuestas existentes en el seno legislativo contaba con estudios técnicos, sino que estaba en trámite la ejecución de la contratación de los estudios actuariales al Instituto de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica; sin embargo, considera que debe aclararse que el trabajo actuarial realizado por este Instituto (de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica), no estudió ninguno de los textos sustitutivos que adoptó en primer orden la Comisión Especial para discusión, ni tampoco el finalmente votado por el Plenario Legislativo que hoy es la Ley número 9544. Advierte que ese estudio actuarial únicamente atendió a los anteriores factores del sostenimiento económico, financiero y contable del fondo, no así a las consecuencias que su aprobación causaría a los servidores y cotizantes del régimen, en total desatención de los principios constitucionales y del Derecho de la Constitución que rigen esta materia, a saber, solidaridad, redistribución justa, igualdad, siendo que, bajo esta premisa, hizo su propia propuesta de reforma. Anota que, en sesión ordinaria número 23, celebrada el 27 de julio del 2017, la Comisión Especial confirió audiencia al Instituto de Investigaciones de Ciencias Económicas a fin de intentar justificar la última propuesta (tercer texto sustitutivo) finalmente aprobada y dictaminada por esa Comisión en esa misma sesión; en su respuesta, el IICE advirtió de ciertos cambios en los elementos esenciales, una vez más, para atender únicamente a la sostenibilidad del régimen, con lo cual prevaleció únicamente la supuesta solidez económica del fondo -que no es tal- a costa de las gravosas contribuciones de quienes están adscritos a este régimen. Advierte que no se atendieron las quejas acerca del efecto dañino que la reforma tendría contra el 62% de las personas funcionarias del Poder Judicial; porcentaje que es conservador por la base de cálculo para la pensión en la ley impugnada, de manera que podría ser mayor. Argumenta que, estas restricciones y limitaciones no responden a los criterios de utilidad, menor afectación y proporcionalidad -en sentido estricto- que son los criterios de evaluación y ponderación del régimen de limitación de los derechos fundamentales, conforme al desarrollo que ha hecho la Sala Constitucional a partir de sus sentencias 3550-92, del 24 de noviembre de 1992 y 4205-96, del 20 de agosto de 1996, lo que hace a esta reforma -en su criterio- excesiva y arbitraria, siendo lo más grave de todo, que esa ley no cumple la finalidad que supuestamente movió a su adopción que era modificar el régimen para hacerlo sostenible, fuerte y eliminar las pensiones de lujo. Argumenta que, al contrario, se afectó a la generalidad de la colectividad del Poder Judicial, que ahora ven rebajados sustancialmente sus salarios, pensiones y jubilaciones; pero se mantuvieron las pensiones de lujo. Recuerda que, tanto la Sala Constitucional como la Organización Internacional del Trabajo, tienen el criterio de que, para modificar el sistema de pensiones, hay que contar con criterios técnicos; no obstante lo anterior, afirma que los artículos 224 y 224 bis de la reforma impugnada, no cuentan con ellos para aumentar el límite del cálculo de la pensión de 10 a 20 años. Advierte que, sobre el particular, la Sala Constitucional ha anulado leyes por carecer de criterios técnicos: sentencia número 2011-6805, del 27 de mayo del 2011 en que se anuló el inciso k) del artículo 131 de la Ley de Tránsito por Vías Públicas Terrestres; la sentencia número 2011-13393, del 5 de octubre del 2011 en la cual se anuló el inciso ñ) del artículo 132 de la Ley de Tránsito por Vías Públicas Terrestres; y la sentencia número 2011-13436 del 5 de octubre del 2011 en la que se anuló el artículo 3.7 del Decreto Ejecutivo 35748-MP-MINAET-MIVAH. Manifiesta que la Sala Constitucional ha declarado que las leyes pueden ser anuladas si sufren de ese vicio de la irracionalidad y desproporción entre medios y fines. Señala que los criterios que se deducen de los casos judiciales para declarar la inconstitucional de una ley son los siguientes:

• a)la regulación no satisface un interés público imperativo; b) de varias opciones válidas, debe seleccionarse la que menos restrinja el derecho regulado; c) la restricción debe ser proporcionada al fin que la motiva y debe restringirse a cumplir ese fin (proporcionalidad de la regulación); d) la restricción debe ser excepcional por estar motivada en un imperativo social.

Manifiesta que el respeto de estos criterios permite valorar posteriormente la constitucionalidad de las normas regulatorias puesto que, la limitación impuesta por ley, será la mejor alternativa de otras más gravosas para los derechos de los ciudadanos. Señala que en la sentencia número 08858-98, la Sala Constitucional desarrolló esos conceptos respecto de las normas de carácter general, en los siguientes términos:

"Así, un acto limitativo de derechos es razonable cuando cumple con una triple condición: [cuando] es necesario, idóneo y proporcional. La necesidad de una medida hace directa referencia a la existencia de una base táctica que haga preciso proteger algún bien o conjunto de bienes de la colectividad -o de un determinado grupo- mediante la adopción de una medida de diferenciación. Es decir, que, si dicha actuación no es realizada, importantes intereses públicos van a ser lesionados. Si la limitación no es necesaria, tampoco podrá ser considerada como razonable, y por ende constitucionalmente válida. La idoneidad, por su parte, importa un juicio referente a si el tipo de restricción a ser adoptado cumple o no con la finalidad de satisfacer la necesidad detectada. La idoneidad de la medida nos indicaría que pueden existir otros mecanismos que en mejor manera solucionen la necesidad existente, pudiendo algunos de ellos cumplir con la finalidad propuesta sin restringir el disfrute del derecho en cuestión. Por su parte, la proporcionalidad nos remite a un juicio de necesaria comparación entre la finalidad perseguida por el acto y el tipo de restricción que se impone o pretende imponer, de manera que la limitación no sea de entidad marcadamente superior al beneficio que con ella se pretende obtener en beneficio de la colectividad. De los dos últimos elementos, podría decirse que el primero se basa en un juicio cualitativo, en cuanto que el segundo parte de una comparación cuantitativa de los dos objetos analizados” (los resaltados son del memorial).

Manifiesta que la Sala Constitucional ha definido estos conceptos de racionalidad y proporcionalidad de una manera amplia, referidos a posibles excesos legislativos en la regulación de las libertades y, por ello, estima que la reforma no cumple estos criterios de razonabilidad y proporcionalidad, porque creó una pensión más baja para el 62% de las personas funcionarias del Poder Judicial, sin un criterio técnico que lo justifique y en total contravención de los principios constitucionales que rigen el derecho a la pensión. Finaliza el memorial solicitando que se declare la inconstitucionalidad de la reforma aprobada por la Ley 9544 por sus efectos (art. 3 de la LJC); porque las pensiones de los servidores judiciales serán menores que las pensiones del régimen de IVM de la CCSS, por efecto de cargas desmedidas, arbitrarias y abusivas; igualmente por falta de proporcionalidad en sentido estricto, toda vez que la ley impugnada es abiertamente desproporcionada, confiscatoria y desigual, al establecer un régimen que, en la mayoría del colectivo del Poder Judicial (62%), es inferior al mínimo del régimen de IVM de la Caja Costarricense del Seguro Social, y, sin embargo, ser excesivas las cargas que se imponen, tanto a servidores activos como pensionados y/o jubilados, de hasta cuatro veces más. Como pretensiones generales de esta acción de inconstitucionalidad, plantea:

• 1)por lo expuesto y según lo estipulado en los Convenios citados y la jurisprudencia constitucional invocada, solicita que se declare un derecho adquirido y la pertenencia al régimen sobre el cual tenía la expectativa de jubilación.
• 2)solicita a la Sala Constitucional realizar una interpretación conforme al Bloque de Constitucionalidad, en el sentido de que el Transitorio II de la Ley número 9544, también es aplicable a las personas funcionarias del Poder Judicial, con 20 o más años de servicio, en razón de que no puede ser aplicada en su perjuicio y, en todo momento, se les deberá respetar sus derechos adquiridos de buena fe.
• 3)pide que se declare la inconstitucionalidad, por omisión, del artículo 224 de la Ley Orgánica del Poder Judicial, reformada mediante la Ley número 9544, al exigir la misma edad a los hombres y las mujeres servidoras judiciales para acceder a la pensión ordinaria, estableciendo para ambos, la edad cumplida de los 65 años.
• 4)solicita que se declare la inconstitucionalidad de la normativa transitoria de vigencia del régimen anterior, es discriminatoria, al no prever la progresividad en su aplicación.
• 5)solicita que se declare la inconstitucionalidad de la reforma aprobada por la Ley 9544 por haber violado directamente la Constitución Política al haber sido aprobada sin haberse consultado a la CCSS, al Poder Judicial, ni a los bancos del Estado.
• 6)solicita se declare la inconstitucionalidad de la reforma aprobada por la Ley 9544, por no haber publicado en el Diario Oficial La Gaceta el texto finalmente aprobado, ni ninguno de los anteriores textos sustitutivos, en aplicación del trámite aprobado del articulo 208-bis del Reglamento de la Asamblea Legislativa; igualmente, por haber violado directamente la Constitución Política al haber sido aprobada sin una mayoría calificada de 38 votos a pesar de que se trataba de una reforma al Poder Judicial, artículo 167 de la Constitución Política.
• 7)solicita que se declare la inconstitucionalidad de la reforma aprobada por la Ley 9544 por sus efectos (art. 3 de la LJC), y porque las pensiones de los servidores judiciales, serán menores que las pensiones del régimen de IVM de la CCSS, ello por efecto de cargas desmedidas, arbitrarias y abusivas; igualmente, reitera por falta de proporcionalidad en sentido estricto, porque es abiertamente desproporcionada, confiscatoria y desigual, al establecer un régimen que, en la mayoría del colectivo del Poder Judicial (62%), es inferior al mínimo del régimen de IVM de la Caja Costarricense del Seguro Social, y, sin embargo, ser excesivas las cargas que se imponen, tanto a las personas servidoras activas como pensionadas y/o jubiladas, hasta cuatro veces más.

144.- El 6 de febrero de 2019, los Magistrados propietarios Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López y Luis Fernando Salazar Alvarado, así como los suplentes Jorge Araya García, Marta Esquivel Rodríguez y Mauricio Chacón Jiménez, plantean inhibitoria al considerar que les asiste interés directo en las resultas de esta acción de inconstitucionalidad (en términos iguales a cómo lo hicieron en el expediente principal 18-007819-0007-CO).

145.- En resolución de la Presidencia de la Sala Constitucional -Magistrado José Paulino Hernández- de las 9 horas 05 minutos del 11 de febrero del 2019, se tuvo por separados del conocimiento de este asunto a los Magistrados propietarios Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, Araya García, Esquivel Rodríguez y Chacón Jiménez, disponiéndose que se comunique lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según el artículo 6 de la Ley de la Jurisdicción Constitucional.

146.- Mediante oficio agregado al expediente electrónico el 19 de febrero de 2019, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6852 efectuado para la sustitución de los Magistrados y Magistradas Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, la Magistrada Nancy Hernández López y los Magistrados Suplentes Jorge Araya García, Mauricio Chacón Jiménez así como Marta Esquivel Rodríguez por haberse inhibido para el conocimiento de esta acción de inconstitucionalidad. Se informa que los Magistrados y Magistradas suplentes seleccionados son: Anamari Garro Vargas, Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Ileana Sánchez Navarro, Alicia Salas Torres, Ana María Picado Brenes y Rónald Salazar Murillo.

147.- El 19 de febrero de 2019 los Magistrados suplentes Rónald Salazar Murillo, Ileana Sánchez Navarro, Lucila Monge Pizarro, Anamari Garro Vargas; el 20 siguiente las Magistradas suplentes Alicia Salas Torres y Ana María Picado y el 22 posterior el Magistrado suplente José Paulino Hernández formularon inhibitoria en este expediente en iguales términos en que lo hicieron en el principal 18-007819-0007-CO.

148.- En resolución de las 10 horas 45 minutos del 22 de febrero de 2019 la Presidencia de la Sala Constitucional -Magistrado Delgado Faith-, dispuso tener por separados del conocimiento de este proceso a los Magistrados y Magistradas suplentes Rónald Salazar Murillo, Ileana Sánchez Navarro, Lucila Monge Pizarro, Anamari Garro Vargas, Alicia Salas Torres y Ana María Picado, así como comunicar lo pertinente a la Presidencia de la Corte Suprema de Justicia a efecto de que se proceda a su sustitución según lo dispuesto en el artículo 6 de la Ley de la Jurisdicción Constitucional.

149.- Mediante oficio agregado al expediente electrónico el 27 de febrero de 2019, la Presidencia de la Corte Suprema de Justicia envió el resultado del sorteo #6880 efectuado para la sustitución de los Magistrados y Magistradas suplentes Ileana Sánchez Navarro, Ana María Picado Brenes, Lucila Monge Pizarro, Alicia Salas Torres, José Paulino Hernández Gutiérrez, Rónald Salazar Murillo y Anamari Garro Vargas, manifestándose que debido a que la Sala originalmente había pedido 7 suplentes y únicamente hay 2 disponibles, el sorteo se realizó con los suplentes que habían, siendo seleccionados Hubert Fernández Argüello y Alejandro Delgado Faith.

150.-El 27 de febrero de 2019, el Magistrado suplente Hubert Fernández Argüello presentó inhibitoria para conocer esta acción de inconstitucionalidad en iguales términos en que lo hizo en el expediente principal 18-007819-0007-CO.

151.- La Presidencia de la Sala Constitucional ejercida por el Magistrado Delgado Faith, en resolución de las 12 horas 05 minutos del 05 de marzo de 2019, tuvo por separado del conocimiento de este expediente al Magistrado suplente Hubert Fernández Argüello y dispuso remitir el expediente a la Presidencia de la Corte Suprema de Justicia para lo que corresponda.

152.- Mediante resolución de la Presidencia de la Sala Constitucional -Magistrado Delgado Faith- de las 12 horas 35 minutos del 5 de marzo de 2019 y con sustento en lo resuelto por el Presidente de la Sala Constitucional -Magistrado Castillo Víquez- a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se declaró habilitados para conocer de esta acción de inconstitucionalidad a los Magistrados Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado y Jorge Araya García, disponiéndose continuar con la tramitación del expediente.

153.- El 8 de marzo de 2019 se apersona el Magistrado Fernando Cruz Castro para manifestar que, en este expediente y en todos los demás que se han acumulado al principal número 18-007819-0007-CO, presentó junto con otros Magistrados, una solicitud de inhibitoria por cuanto se impugna la reforma a la Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial. Aduce que, aunque dicha inhibitoria fue inicialmente aceptada, posteriormente, todos los Magistrados fueron habilitados con fundamento en el principio de irrenunciabilidad de las competencias. Argumenta que desde agosto de 2018 ocupa el cargo de Presidente de la Corte Suprema de Justicia y por ello considera que tiene una razón nueva para solicitar la inhibitoria. Agrega que, en otros procesos ante esta Sala en donde ha sido parte recurrida o interviniente en su calidad de Presidente de la Corte Suprema de Justicia, ha solicitado la inhibitoria pues ha considerado que resulta improcedente que actúe como juez en un asunto en donde ha sido llamado como parte en dicha calidad, estimando que, en los expedientes señalados supra, se está frente a la misma situación pues no puede participar en la votación de esas acciones debido a que, como Presidente de la Corte, será llamado a informar sobre el fondo ya que la normativa está relacionada con el Poder Judicial. Aduce que, por tal razón, presenta esta inhibitoria y pide que se remitan los autos a la Presidencia de la Sala Constitucional para que resuelva lo que corresponda de conformidad con lo dispuesto por el artículo 6 de la Ley de la Jurisdicción Constitucional.

154.- Mediante resolución de las 14 horas 48 minutos del 8 de marzo de 2019, el Presidente de la Sala Constitucional -Magistrado Fernando Castillo-, y con sustento en lo resuelto a las 14 horas 40 minutos del 3 de agosto de 2018 dictada en el expediente principal número 18-007819-0007-CO, se tuvo por separado del conocimiento de este asunto al Magistrado Fernando Cruz Castro y se declaró habilitada para conocer de este asunto a la Magistrada suplente Marta Esquivel Rodríguez, disponiéndose continuar con la tramitación del expediente.

155.- Por resolución de las 13 horas 05 minutos del 22 de febrero de 2019 y por haberse ordenado así en sentencia número 2019-003006 de las 9 horas 15 minutos del 22 de febrero de 2019, se da curso a esta acción y se le otorga audiencia al Procurador General de la República, al Presidente de la Asamblea Legislativa y al Presidente de la Corte Suprema de Justicia.

156.- El 12 de marzo de 2019 se apersona Patricia Solano Castro en su condición de Vicepresidenta del Poder Judicial y del Consejo Superior, para rendir el informe que le fuera solicitado en esta acción de inconstitucionalidad.

• I)Antecedentes: señala que la Asamblea Legislativa mediante el oficio número CE208-BID-02-2016 de 14 de septiembre de 2016, recibido el 19 siguiente, consultó el texto del proyecto de ley número 19.922 denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”. Argumenta que ese proyecto de ley se trasladó a estudio de los Magistrados Orlando Aguirre y Luis Guillermo Rivas, siendo que el informe se conoció en la sesión de Corte Plena número 29-16, celebrada el 26 de septiembre de 2016, artículo XXVIII, comunicado a la Asamblea Legislativa mediante oficio número SP-288-16 de la Secretaría General de la Corte del 28 de septiembre de 2016, con la indicación expresa de que el proyecto de ley consultado incide en la organización y funcionamiento del Poder Judicial. Agrega que, posteriormente, la Asamblea Legislativa en oficio número AL-20035-OFI-0029-2017 de 17 de abril de 2017, recibido ese día, consultó el texto sustitutivo del proyecto de ley citado, aprobado en sesión ordinaria número 15 del 29 de marzo de 2017. Manifiesta que en esa ocasión, el estudio le correspondió al ex Magistrado Carlos Chinchilla Sandí y el informe fue conocido en la sesión de Corte Plena número 9-17 celebrada el 24 de abril de 2017, artículo XXIX, en la que se acordó hacerlo del conocimiento de la Comisión Especial Expediente No. 19.922 de la Asamblea Legislativa , con la indicación expresa de que la Corte emitió criterio negativo y se opone al proyecto de ley consultado, debido a que incide en la organización y funcionamiento del Poder Judicial (el destacado es del oficio). Argumenta que el acuerdo fue comunicado a la Asamblea Legislativa mediante oficio de la Secretaría General de la Corte, número SP-118-17 del 26 de abril de 2017. Como último antecedente, indica que mediante oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, recibido ese día, el Poder Legislativo remitió consulta sobre el Dictamen Afirmativo de Mayoría del 27 de julio de 2017 respecto al texto del proyecto de ley de cita. Señala que el informe se conoció en la sesión de Corte Plena número 26-17 celebrada el 7 de agosto de 2017, artículo XXX y el acuerdo fue comunicado mediante oficio de la Secretaría General de la Corte Suprema de Justicia número SP-253-17 de 10 de agosto de 2017 y en esa oportunidad también se hizo la indicación expresa a la Asamblea Legislativa en los siguientes términos: “La Corte emite criterio negativo y se opone al proyecto de ley consultado, pues incide en la organización, estructura y funcionamiento del Poder Judicial” (el destacado es del informe).
• II)Sobre el fondo de la acción: a) respecto del artículo 224 de la Ley número 9544 que reforma el Régimen de Jubilaciones y Pensiones del Poder Judicial, argumenta que el texto de la norma vigente no hizo diferencia por género como sí lo hacen otros regímenes de pensiones; omisión ampliamente analizada en la discusión de la tercera consulta y en la que se hizo un especial llamado a observar lo dispuesto en la Convención sobre la Eliminación de todas las Formas de Discriminación contra la Mujer que, en su numeral 11 inciso 1) acápite e) señala que los Estados parte adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo, a fin de asegurar el derecho a la seguridad social, en particular, en casos de jubilación por invalidez o vejez y a lo establecido en el artículo 71 de la Constitución Política en cuanto a la protección especial a las mujeres en su trabajo. Por otra parte, en relación al porcentaje establecido, indica que es preciso tomar en cuenta que las personas servidoras judiciales, en el momento de acogerse a su jubilación, continúan contribuyendo al Fondo de Jubilaciones y Pensiones del Poder Judicial con un aporte obrero de un 13% según el artículo 236 de la normativa impugnada, a diferencia de otros regímenes de jubilaciones y pensiones, siendo por este motivo que el monto de su jubilación se vería disminuido y además se deben agregar otras deducciones como es el rebajo por concepto de gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, creado según el artículo 239 de la citada normativa, que establece una comisión por gastos administrativos de un 5 por 1000 de los sueldos que devengan las personas servidoras judiciales, así como de las jubilaciones y pensiones a cargo del fondo, lo que podría verse como confiscatorio (artículo 40 constitucional)l o violatorio al principio de irretroactividad de la ley (artículo 34 constitucional), al existir derechos patrimoniales adquiridos y consolidados por una ley anterior. Argumenta que, en relación con lo anterior, el informe aprobado por la Corte Plena en sesión número 26-17 de 7 de agosto de 2017, artículo XXX, señaló lo siguiente:

“Se reitera, esta Corte ha sido respetuosa y lo será de los estudios técnicos que se emitan para procurar la sostenibilidad del Fondo, no obstante, no puede obviarse que se está en presencia de derechos fundamentales y es por ello que también la reforma merece un estudio apegado a la técnica actuarial pero también con perspectiva de derechos humanos.

En ese sentido cabe destacar que la Recomendación nº 43 de la OIT “Recomendación sobre el seguro de invalidez, vejez y muerte”, en el punto 13) incisos a) y b) señala que:

“(a) Para garantizar a los trabajadores una vejez sin privaciones, la pensión debería cubrir las necesidades esenciales. Conviene, por consiguiente, que la pensión garantizada a todo pensionado que haya cumplido un período de prueba determinado se fije teniendo debidamente en cuenta el coste de vida.

(b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieren abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión (El destacado es nuestro).

Es claro entonces que tanto el Convenio nº 102 como la Recomendación nº 43 de la Organización Internacional del Trabajo son contestes al establecer que la jubilación y pensión deben satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el período de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa.

No se desconoce la necesidad de hacer reformas al Fondo de Jubilaciones y Pensiones, con el fin de procurar la sostenibilidad, pero estas deben responder revestirse de idoneidad y razonabilidad, tal y como lo indicó la Sala Constitucional en el voto nº 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial. Lo anterior es conteste con lo dicho por la Comisión Interamericana de Derechos Humanos cuando al analizar la admisibilidad del caso “Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y otras contra Perú” (1), esbozó que el artículo 26 mencionado, no es excluyente de la posibilidad de que un Estado imponga ciertas restricciones al ejercicio de los derechos incorporados en esa norma, siempre y cuando se haya hecho un análisis conjunto de la afectación individual del derecho (en este caso a la jubilación y la pensión) con relación a las implicaciones colectivas de la medida”.

• b)Manifiesta que, por otra parte, en lo que respecta al artículo 225 de la normativa impugnada, se establece un tope de jubilación que no podrá ser superior a 10 veces ni inferior a la tercera parte del salario base del puesto más bajo pagado en el Poder Judicial, de manera que no previó la norma que el tope impuesto se debía aplicar luego de que se realicen las deducciones de ley y las contribuciones que continúan haciendo las personas jubiladas para la sostenibilidad de fondo de jubilaciones del Poder Judicial, entre ellas los aportes y la comisión por gastos administrativos. Argumenta que, al igual que el punto anterior, eso fue discutido por la Corte Plena en la consulta del proyecto de ley número 19.922 y en lo que respecta a ese artículo, se indicó lo siguiente:

“El texto bajo estudio contempla en su artículo 225 que ninguna jubilación podrá ser superior a 10 veces el salario base del puesto más bajo pagado en el Poder Judicial; ni inferior a la tercera parte de esa misma referencia, lo que ronda el monto de cuatro millones treinta mil colones (¢4.030.000), sin embargo, no se indica que este monto será el tope impuesto, luego de que se realicen las deducciones de ley, incluida la renta. De no ser así, y de aplicarse las rebajas legales a la cantidad de cuatro millones, de acuerdo al Convenio nº 102 de la OIT, podría tomarse confiscatorio, ya que además del tope que se impone, se aplicarían los rebajos del once por ciento (11%) de cotización mensual que realizan los y las contribuyentes tanto activos como jubilados, cinco por ciento (5%) de Seguro de Maternidad y Enfermedad y entre el diez y quince por ciento (10 y 15%) del Impuesto sobre la Renta, lo que en el escenario más fatal podría ir desde un treinta y uno por ciento (31%) a un treinta y cinco por ciento (35%) del total del ochenta y cinco por ciento (85%) correspondiente a la jubilación ordinaria, lo que devendría en un rebajo de cerca de la mitad del haber jubilatorio, proceder contrario a las disposiciones convencionales que permitan una reducción de dicha prestación.

Véase que tanto el citado Convenio como la Recomendación No. 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación o pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el período de actividad profesional”. Es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa.

Ese cuadro normativo se estima, debe ser tomado en cuenta a la hora la imposición de topes y cargas impositivas al haber jubilatorio, con el fin de evitar futuras inconstitucionalidades que vengan en detrimento de la Ley que eventualmente pueda promulgarse y con ello poner en peligro la sostenibilidad del Fondo de Jubilaciones y Pensiones del Poder Judicial.

Ya la Sala Constitucional indicó en el voto nº 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial, señaló que de fijarse un tope a una jubilación o pensión es necesario fundamentarlo en criterios técnicos y actuariales. Al respecto señaló ese Tribunal Constitucional:

“En el presente caso, el legislador optó por establecer un tope como una medida de previsión social, la cual puede considerarse como válida y necesaria, según lo ya expuesto, para garantizar los fondos del sistema de pensiones sustentado en el principio de solidaridad social. Sin embargo, esa misma decisión carece de los requisitos de idoneidad y proporcionalidad en sentido estricto. Por un lado, si bien el trabajador subordinado o independiente cotiza durante toda su vida laboral un determinado porcentaje que afecta la totalidad de sus ingresos, no existe explicación alguna que justifique que sea ese tope y no otro distinto, o aquél en prioridad sobre aquellos otros, el que deba escogerse. Esa justificación es aún más necesaria e indispensable, cuando existen personas que habiendo cotizado el doble, triple, cuádruple o aun más veces que otras, a todas se les termina imponiendo el mismo monto máximo de jubilación. En tal sentido, se advierte que cuando el legislador fijó el ingreso del Diputado como parámetro del tope de los empleados del Poder Judicial, no indicó los motivos para escogerlo, explicación que debió de haber fundamentado en criterios técnicos y especialmente, actuariales que justificaran la decisión adoptada y no solamente en la necesidad de imponer un límite” (los destacados son del informe).

Informa que, se concluyó sobre ese artículo, que no es suficiente la imposición de un tope jubilatorio, únicamente por pretender poner un límite a las jubilaciones más altas, sino que éste debe ser idóneo y proporcional y deberse a una explicación técnica y jurídica que justifique la reducción de la prestación, esta debía ser suficiente en jubilaciones que nacen de aportaciones que sean tres o cuatro veces mayores al resto de las personas cotizantes, de lo contrario el tope nuevamente se tornaría inconstitucional y se corre el riesgo de que nuevamente se eche de menos tal presupuesto. Agrega que, para evitar eso, el informe propuso la adición de la frase “luego de las deducciones de ley y renta” con el fin de dar cumplimiento a la normativa convencional y análisis constitucional aplicable, pero eso fue omitido en la Ley 9544. Argumenta que para mejor valoración, interesa citar un extracto del informe que indica, en lo que interesa:

“(…) En relación con este impuesto solidario se estima que al ser una carga impositiva, se deben respetar los principios constitucionales que rigen en materia tributaria, como el principio de reserva de ley, proporcionalidad, capacidad económica, no confiscatoriedad, entre otros. Entre ellos, es de especial interés resaltar el principio de no confiscatoriedad en relación con el derecho a la propiedad y lo expuesto por la Sala Constitucional en la sentencia 2657-2001 de las quince horas quince minutos del cuatro de abril de dos mil uno, la cual indica que:

“IV. Sobre el argumento de que el tributo es confiscatorio: El Estado puede tomar parte proporcional de la renta que genera el particular, para sufragar sus gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Constitución protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así, para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación, por lo que no se puede permitir una medida de Tributación que vaya más allá de lo razonable y proporcionado (…) se considera confiscatorio el gravamen que exceda la capacidad económica o financiera del contribuyente, o bien, si el impuesto absorbe una parte sustancial de la operación gravada (…) (Resaltado del original).

De manera que se debe tener especial cuidado con las reducciones que se impongan a efecto de que resulten confiscatorias, pues como se indicó, además de esta contribución solidaria, no debe perderse de vista que como se explicó, una jubilación ordinaria fijada en un ochenta y cinco por ciento (85%), que soporta las cargas de ley del quince por ciento (15%) de contribución al Fondo, un cinco por ciento (5%) al Régimen de la CCSS y un quince por ciento (15%) por concepto de renta, ya sufre una disminución de un cincuenta por ciento (50%) del salario que percibía la persona jubilada cuando se encontraba activa laboralmente (esto sin tomar en cuenta que el cálculo no se está haciendo con base en el salario actual, sino con una prorrata de los últimos veinte años de labor).

Situación que tampoco es ajena a aquellas que ya se otorgan y se disfrutan, pues actualmente perciben gravámenes desde un treinta y uno (31) a un treinta y cinco por ciento (35%) del total del derecho, lo que sumado al porcentaje más bajo de cuota solidaria -veintinco por ciento (25%)-, arroja un total de sesenta por ciento (60%), lo que se torna confiscatorio y desproporcional, en consecuencia, inconvencional e inconstitucional (…)” (los destacados son del informe).

• c)Continúa señalando que con la entrada en vigencia del artículo 227 de la Ley 9544 se establece un traslado de competencias para el órgano encargado de realizar las valoraciones médicas de las personas que requieren acogerse a una jubilación por incapacidad permanente, siendo que esas valoraciones, con la normativa anterior, las realizaba la Medicatura Forense y ahora, con la entrada en vigencia de la Ley 9544, pasó a la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social; situación que ha generado un atraso en las valoraciones que tiene pendientes el Poder Judicial de personas servidoras judiciales que se encuentran incapacitadas, sin que en el momento en el que se discutía el proyecto de ley, el legislador previera realizar una consulta a la Caja Costarricense de Seguro Social sobre la capacidad operativa de la citada comisión para asumir esa nueva competencia. Informa que esto ha ocasionado que en el Poder Judicial existan actualmente personas servidoras judiciales con incapacidades médicas prolongadas y a la espera de una valoración por parte de la Comisión Calificadora de la Caja, sin que aún se resuelva su situación debido a las largas listas que tiene esa comisión. Señala que la Corte Plena en la sesión número 26-17 celebrada el 7 de agosto de 2017, artículo XXX, se había opuesto a ese cambio y en el informe aprobado se indicó lo siguiente:

“De esta regulación se considera innecesaria una remisión a un órgano de un ente descentralizado como es la Caja Costarricense de Seguro Social (CCSS), ya que la institución dispone de un organismo técnico especializado para este análisis, por lo que se debe referenciar a una instancia interna y no a la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social.

Nótese que el Régimen del Poder Judicial es también del llamado “Primer Pilar” y sustituye al de la CCSS, por lo que no es correcto desde el punto de vista orgánico, delegar esa función en una institución autonóma y descentralizada.

En todo caso, el Consejo Médico Forense, es la última instancia de revisión de las actuaciones del órgano médico calificador de la CCSS, dentro de los procesos judiciales de seguridad social, de manera que se considera por las razones dadas, que debe variarse el artículo en cuestión” (los destacados son del informe).

• d)En relación con el artículo 236 que define los ingresos del Fondo de Jubilaciones y Pensiones del Poder Judicial, manifiesta que es importante reiterar que la contribución se incrementó a un 13%, manteniendo ese porcentaje para el aporte que deben hacer las personas pensionadas y jubiladas, a diferencia de otros regímenes de jubilaciones donde una vez jubilada o pensionada, la persona no debe seguir cotizando. Argumenta que esa condición debe ser valorada de manera integral con el resto del articulado que se mencionó en los puntos anteriores y donde también se establecen montos que disminuyen el porcentaje aprobado para la jubilación con motivo de los rebajos por cotización, contribución especial, solidaria y redistributiva, que fueron establecidos en la norma impugnada, además del impuesto de la renta. Advierte que el Fondo de Jubilaciones y Pensiones del Poder Judicial tiene las mismas características de un fondo de la seguridad social (artículos 73 y 177 constitucionales) y su naturaleza ha sido analizada por parte de la Sala en el Voto número 2014-20474 de las 15 horas 45 minutos del 18 de diciembre de 2014, de la siguiente forma:

“III. Sobre la naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial.- Para este Tribunal el sistema de jubilación y pensión del Poder Judicial consiste en un “régimen de reparto”, en el que concurren contribuciones tanto de los trabajadores y ex servidores, como fondos públicos, dados los aportes del Poder Judicial como patrono, y el del Estado en sí. Ergo, la naturaleza de este régimen de previsión corresponde al campo, por un lado, del derecho de la seguridad social, y, por el otro, al derecho público en virtud de la naturaleza estatutaria de la relación de los servidores para con el Estado. Así las cosas, resulta evidente que el sistema en cuestión tiene exactamente las mismas características que un fondo de la seguridad social, como se colige de la lectura del numeral 73 de la Constitución Política (…)

En definitiva, el Fondo de Jubilaciones y Pensiones del Poder Judicial está constituido en beneficio de los trabajadores judiciales, que se sostiene financieramente merced a un sistema de contribución forzosa tripartito del Estado, Poder Judicial como patrono, junto con servidores y jubilados judiciales, y que tiene como fin proteger a estos últimos de contingencias como vejez, invalidez o muerte. Se presentan los elementos necesarios para considerar al Fondo de Jubilaciones y Pensiones del Poder Judicial como un sistema de seguridad social de reparto, lo que irremediablemente implica que debe regirse de acuerdo con lo estatuido en la Constitución Política y los principios que informan los regímenes de seguridad social (sentencia número 2011-10513, de las quince horas un minutos del diez de agosto de dos mil once. En el mismo sentido sentencia número 2012-004108, de las catorce horas treinta minutos del veintisiete de marzo de dos mil doce)”.

• e)El artículo 236 bis establece la “Contribución especial, solidaria y redistributiva de los pensionados y jubilados” siendo que la Corte, en un primer momento, sesión número 29-16 celebrada el 26 de septiembre de 2016, artículo XXVIII, se opuso a la forma en que se presentaba esa contribución en el primer texto consultado, indicando que:

“La Corte se opone a la redacción de esta norma. Se debe resaltar que este aporte, que hoy se denomina contribución solidaria, está implementado en el régimen actual: los jubilados y pensionados del Poder Judicial continúan cotizando al régimen el mismo porcentaje de las personas trabajadoras, actualmente de un 11%.

Cualquier aporte solidario adicional, debe partir de este porcentaje ya aportado. También se debe considerar que los jubilados y pensionados del régimen del Poder Judicial, además de este aporte obligatorio al Fondo de Jubilaciones y Pensiones del 11%, deben aportar al Seguro de Enfermedad y Maternidad de la CCSS, un 5% e igualmente pagar el impuesto sobre la renta, cuyos rangos alcanzan entre el 10% y 15%, según los topes definidos por el Ministerio de Hacienda.

Se destaca que quienes pertenecen al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social no siguen aportando al régimen ni pagan lo correspondiente al Seguro de Enfermedad y Enfermedad (sic).

Es por esto, que este aporte solidario no puede sobrepasar un 20%, considerando el 11% ya aportado, ya que de lo contrario, la totalidad de las deducciones serían confiscatorias y atentarían contra la normativa internacional y constitucional establecida en esta materia” (los destacados son del informe).

Agrega que, igualmente, en una segunda consulta en la sesión número 26-17 del 7 de agosto de 2017, artículo XXX, se reiteró que en relación al impuesto solidario se estimaba que al ser una carga impositiva se debían respetar los principios constitucionales que rigen la materia tributaria, como el principio de reserva de ley, proporcionalidad, capacidad económica, no confiscatoriedad, entre otros. Añade que también se indicó que, entre todos esos principios, es de especial interés resaltar el principio de no confiscatoriedad en relación con el derecho a la propiedad y lo expuesto por la Sala Constitucional en la sentencia 2657-2001 de las 15 horas 15 minutos del 4 de abril de 2001, que en lo que interesa, dispuso:

“IV. Sobre el argumento de que el tributo es confiscatorio: el Estado puede tomar parte proporcional de la renta que genera el particular, para sufragar sus gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Constitución protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así, para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación, por lo que no se puede permitir una medida de Tributación que vaya más allá de lo razonable y proporcionado. (…). Si la Constitución en su artículo 45 establece que la propiedad es inviolable, y en su artículo 40 que nadie será sometido a pena de confiscación, es indudable que el tributo no puede ser tal que haga ilusorias tales garantías. Pero sí se puede establecer como principio, que se considera confiscatorio el gravamen que exceda la capacidad económica o financiera del contribuyente, o bien, si el impuesto absorbe una parte sustancial de la operación gravada (…) (los resaltados son del informe).

Manifiesta que se hizo atenta instancia ante el legislativo de que se debía tener especial cuidado con las reducciones que se impongan a efecto de que no resulten confiscatorias pues, además de esta contribución solidaria, no debía perderse de vista que una jubilación ordinaria fijada en un 85% -porcentaje que indicaba el texto consultado en ese momento- que soporta las cargas de ley del 15 % -porcentaje que indicaba el texto consultado en ese momento- de contribución al Fondo, un 5% al Régimen de la CCSS y un 15% por concepto de renta, ya sufría una disminución del un 50% -según esos cálculos-, que percibía la persona jubilada cuando se encontraba activa laboralmente, sin tomar en cuenta además que el cálculo no se hizo en ese momento con base en el salario actual, sino con una prorrata de los últimos 20 años de labor. Manifiesta que, aunado a lo anterior, según menciona el informe rendido en aquella oportunidad, la situación tampoco era ajena a aquellas que ya se otorgan y se disfrutan pues, actualmente, perciben gravámenes desde un 31% a un 35% del total del derecho, lo que sumado al porcentaje más bajo de la cuota solidaria -25%-, arrojaba un total de 60%, lo que podría resultar confiscatorio y desproporcional, en consecuencia, contrario a lo estipulado en materia convencional e inconstitucional. Indica que es importante traer a colación el artículo 67 del Convenio No. 102 de la OIT en cuanto al monto de la prestación y a la advertencia que ahí se hace en cuanto a que el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes y no deberá ser inferior al monto de la prestación calculada según lo dispuesto en el artículo 66 de ese cuerpo normativo. Señala que también se debe tomar en cuenta la recomendación No. 43 de la OIT que es conteste al establecer que la pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el período de actividad profesional”; es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. Manifiesta que, por ello, se estimó que el cuadro normativo señalado debe ser tomado en cuenta a la hora de la imposición de topes y cargas impositivas al haber jubilatorio, con el fin de que estas se ajusten a la razonabilidad y proporcionalidad que señaló tanto la Sala Constitucional como la Organización Internacional del Trabajo (OIT).

• f)El artículo 239 crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, como un órgano del Poder Judicial con completa independencia funcional, técnica y administrativa y le asigna una serie de funciones que, anteriormente, correspondían al Consejo Superior del Poder Judicial, como administrador del Fondo de Jubilaciones y Pensiones del Poder Judicial, según los incisos 12, 13, 14 y 15 del artículo 81 de la Ley Orgánica del Poder Judicial, derogados por el artículo 2 de la Ley 9544. Argumenta que, así las cosas, se modifican algunas funciones del Consejo Superior del Poder Judicial y se crea una dependencia interna de la institución, que si bien ostenta personería jurídica instrumental, mantiene una relación orgánica con el Poder Judicial, o sea, continúa subordinada a éste en todos los aspectos no propios de la función que le fue encargada de manera desconcentrada, así como de los aspectos derivados de su personalidad jurídica instrumental y por ello debe entenderse como un órgano del Poder Judicial. Indica que la norma impugnada establece algunas competencias a la Corte Plena y al Consejo Superior del Poder Judicial como jerarcas institucionales que deben velar por el buen funcionamiento de sus dependencias y la eficiencia en la prestación del servicio; entre esas competencias, el artículo 240 le otorgó a la Corte Plena la competencia para el nombramiento de 3 miembros de la Junta Administradora, con sus respectivos suplentes, para ello se tuvo que activar todo el sistema interno de reclutamiento y selección por parte de las oficinas técnicas y definir en primera instancia la forma en que se llevaría a cabo el concurso respectivo que, a la fecha de rendir este informe, no se había logrado integrar por falta de postulantes y motivos ajenos a la institución. Agrega que el último párrafo de ese artículo 239 de la Ley impugnada, estableció una comisión por gastos administrativos, siendo que, en un inicio, ese dinero muy probablemente resulte insuficiente para cubrir los gastos administrativos más los salarios de la Junta Administrativa. Señala que por lo anterior, al momento de rendir este informe, resulta palpable la necesidad de que el Poder Judicial en su momento, brinde un razonable apoyo material a la Junta Administrativa; lo anterior en vista de que debe evitarse cualquier riesgo, entre ellos, el de que, por falta de previsión, se vea afectado el inicio del funcionamiento de este nuevo órgano. Manifiesta que es oportuno destacar que la Ley 9544 presenta muchas vaguedades que deberán ser suplidas vía reglamento, algunos -para ese momento- aprobados por la Corte Plena y que no deben desbordar esa Ley, con el riesgo de apartarse de la voluntad del legislador. Advierte que este problema fue señalado también durante la tramitación del expediente legislativo 19.922 que dio lugar a la Ley 9544, siendo que, en tal sentido, el Procurador de Hacienda señaló que la falta de claridad del artículo 240 sobre la Junta Administradora, puede corregirse reglamentariamente pero, en ese caso, se corre el riesgo de que el reglamento no refleje la intención del legislador (Opinión Jurídica 104-2017 de 16 de agosto de 2017). Indica que, lo anterior, debido a que existe una contradicción o choque de normas en relación a la regulación sobre el pago de las dietas a las personas que conforman la Junta Administradora, donde según el artículo 239 párrafo 5º con la comisión por gastos administrativos (5x 1000) se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y sus gastos administrativos; por su parte, el artículo 204 párrafo 4º a la vez dispone que “los miembros de la Junta Administradora no devengarán ninguna dieta” (los subrayados son del memorial). Informa que, por todo lo anterior, la Corte Plena en las sesiones citadas, emitió un criterio negativo y acordó que los textos consultados sobre el proyecto de ley número 19.922, sí afectaban el funcionamiento y organización del Poder Judicial, concluyendo en el acuerdo de la sesión número 26-17, celebrada el 7 de agosto de 2017, artículo XXX, en lo que interesa:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

(…) se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante (…).

Corolario, respecto del proyecto de Ley tramitado bajo el expediente nº19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial” (los destacados son del memorial).

Agrega que la Sala Constitucional en la sentencia número 2008-5179 de las 11 horas del 4 de abril del 2008, en relación a la afectación en el funcionamiento y organización del Poder Judicial, hizo un amplio análisis relacionado al referido artículo 167 Constitucional que, en lo que interesa, dispuso:

“(…)

De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equivocadamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial. La mayoría de este Tribunal Constitucional estima que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial y la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas (…). Un valladar importante, establecido por el constituyente, a la discrecionalidad legislativa, lo constituye precisamente, el ordinal 167 de la Constitución, en aras de mantener la independencia del Poder Judicial al disponer una consulta preceptiva de los proyectos de ley referidos a la organización y funcionamiento que le atañen a ese Poder de la República. No obstante, ese límite debe ser interpretado en su verdadera dimensión, de modo que opere cuando de manera sustancial, objetiva y cierta el proyecto de ley se refiere a tales materias, de lo contrario se limita, innecesaria e injustificadamente, la libertad de configuración del legislador ordinario, órganos o funciones jurisdiccionales o administrativas adscritas al Poder Judicial” (los destacados son del memorial).

Argumenta que, en razón de lo expuesto, el procedimiento para la aprobación de la Ley 9544 es el que establece el artículo 167 de la Constitución Política que refiere a la consulta obligatoria que debe hacer la Asamblea Legislativa a la Corte Suprema de Justicia cuando el proyecto de ley se refiera a la organización o funcionamiento del Poder Judicial y además, para apartarse del criterio de ésta, “se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea”; con ello el legislador garantizó el “principio democrático” que tiene como función que los proyectos de ley que se analizan bajo esas condiciones cuenten con suficiente “oportunidad de reflexión y debate” como lo ha señalado la Sala Constitucional en la sentencia número 3671-2006 de las 14 horas 30 minutos del 22 de marzo de 2006. Añade que, según los registros de la Secretaría General de la Corte Suprema de Justicia, posterior a la consulta presentada por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017 -Dictamen Afirmativo de Mayoría-, no se recibieron otras consultas de parte de la Asamblea Legislativa y el texto aprobado presentaba algunas modificaciones importantes en relación a la última consulta.

157.- La Procuraduría General de la República rindió su informe por medio de su Procurador General, Julio Jurado Fernández mediante escrito presentado en la Secretaría de la Sala a las 9 horas 20 minutos del 14 de marzo de 2019. Señala que, antes de abordar los reparos específicos planteados contra la reforma al régimen de pensiones del Poder Judicial operada por medio de la Ley No. 9544, debe indicarse que de conformidad con el artículo 73 de la Constitución Política, la administración y el gobierno de los seguros sociales corresponde a la Caja Costarricense de Seguro Social, lo que implica, en principio, que correspondería a esa institución (con independencia de la ley y aún con prevalencia sobre ella), establecer las condiciones que deberían privar en los diferentes regímenes de seguridad social. Aduce que esa es la situación que impera en el régimen general de invalidez, vejez y muerte, el cual se administra bajo las condiciones que establece, por vía reglamentaria, la Junta Directiva de la Caja Costarricense de Seguro Social. Aduce que, a pesar de lo anterior, en Costa Rica se han creado, por vía legislativa, diversos regímenes especiales de pensiones, sustitutivos del general, cuya existencia ha sido avalada reiteradamente por la Sala Constitucional, pudiendo citarse como ejemplo, la sentencia número 846-92 de las 13 horas 30 minutos del 27 de marzo de 1992, en la cual se dispuso que no es contrario a la Constitución la existencia de regímenes especiales de jubilación o pensión, a condición de que la contribución del Estado como tal sea igual para todos los regímenes, incluyendo los de la empresa privada y que la contribución del Estado como empleador, en los diversos regímenes, no sea superior a la que se impone a los demás empleadores, inclusive los patronos particulares, ni, en todo caso, inferior a la de todos los servidores o trabajadores. Añade que, partiendo de lo anterior, su representada ha indicado que la Asamblea Legislativa tiene no sólo la posibilidad, sino el deber, de adoptar las medidas necesarias para garantizar la sostenibilidad de los diversos regímenes especiales de pensiones sustitutivos del general, mediante la aprobación de las leyes que se requieran para el logro de ese objetivo. Agrega que, en esa línea, la Procuraduría ha sostenido que la administración de cualquier régimen de seguridad social requiere flexibilidad para orientar adecuadamente los recursos limitados de que dispone y que esa flexibilidad se afecta cuando se inhibe al legislador -o a quien tenga competencia para realizar cambios en las normas que regulan el tema- para modificar tanto las condiciones iniciales, como las prestaciones en curso. Argumenta que, partiendo de lo anterior, no es posible admitir que se petrifiquen las normas que establecieron las condiciones de un determinado régimen, pues ello podría llevar incluso al colapso del sistema de seguridad social de un país, lo cual perjudicaría no sólo a las personas que ya han alcanzado la condición de pensionados, sino también a quienes tienen expectativas justificadas de obtener en el futuro (cuando surja alguna de las contingencias protegidas) prestaciones económicas de la seguridad social. Manifiesta que en esa línea puede consultarse el dictamen C-147-2003 del 26 de mayo de 2003, reiterado en el C-181-2006 del 15 de mayo de 2006, en la OJ-021-2007 y en la OJ-082-2015 del 3 de agosto de 2015.

Sobre los reparos de constitucionalidad contra la reforma al Régimen de Pensiones del Poder Judicial operada mediante la Ley No. 9544, indica que, sin perjuicio de lo dicho supra en el sentido de que el legislador cuenta con la potestad para regular los diferentes regímenes de pensiones sustitutivos del general (incluyendo el régimen del Poder Judicial), es claro que el ejercicio de esa potestad debe respetar las normas y los principios constitucionales que rigen la materia. Manifiesta que, según los accionantes, la reforma al régimen de pensiones del Poder Judicial operada mediante la Ley No. 9544, presenta varios problemas de constitucionalidad, los cuales informa que ha agrupado en varios temas a los que se refiere de seguido.

• 1)Sobre la omisión de someter a consulta del Poder Judicial el proyecto de ley definitivo, a pesar de que la reforma al régimen de pensiones afecta la organización y funcionamiento de ese Poder: en relación con este extremo, pide tener presente lo dispuesto por el artículo 167 de la Constitución Política:

“Artículo 167.- Para la discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial, deberá la Asamblea Legislativa consultar a la Corte Suprema de Justicia; para apartarse del criterio de ésta, se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea” (los destacados son del memorial).

Argumenta que, en criterio de la Procuraduría, la reforma al régimen de pensiones del Poder Judicial, no afecta la “organización y funcionamiento” de ese Poder, por lo que no se estaría frente a uno de los supuestos en los que el trámite legislativo exija una consulta obligatoria, toda vez que ésta es necesaria cuando se legisla sobre el ejercicio de la función jurisdiccional, no cuando se pretende regular aspectos administrativos, como los relacionados con el régimen de pensión de los empleados judiciales. Indica que esa tesis la ha sostenido reiteradamente la Sala Constitucional, como en la sentencia No. 3063-95 de las 15 horas 30 minutos del 13 de junio de 1995 al pronunciarse sobre la posible inconstitucionalidad de la Ley Marco de Pensiones, en la dijo en lo que interesa:

“III. DE LA CONSULTA OBLIGADA A LA CORTE SUPREMA DE JUSTICIA. (…). Además dicha consulta resulta obligatoria únicamente entratándose de la “organización y funcionamiento” del Poder Judicial, funcionamiento que está referido a la función jurisdiccional, teniendo como objetivo garantizar la independencia del Poder Judicial; éste trámite no se refiere al otorgamiento de beneficios para los servidores judiciales, como es la materia en estudio, por lo que la consulta resulta innecesaria” (los destacados son del memorial).

Agrega que, por otra parte, podría pensarse que aún cuando la materia de pensiones no esté relacionada directamente con la función jurisdiccional del Poder Judicial, la modificación de las normas que rigen esa materia podría causar un impacto presupuestario que justifique, indirectamente, la obligatoriedad de la consulta a que se refiere el artículo 167 de la Constitución Política; aspecto sobre el que también existe un pronunciamiento específico de la Sala en el sentido de que la ausencia de consulta en tales circunstancias, no infringe la Constitución Política:

“(…) la Sala considera que el régimen de pensiones de los servidores judiciales aquí impugnado, no modifica el régimen jurídico por el que la Corte Suprema de Justicia imparte justicia, ni reordena el número o las competencias de los tribunales existentes. No puede tampoco alegarse contra la norma un efecto apenas indirecto, que sería causado por un cambio en el presupuesto general del Poder Judicial, que a su vez podría incidir sobre la función jurisdiccional. El efecto de segundo grado como sería éste, no es un criterio de importancia constitucional suficiente como para invalidar un acto del Poder Legislativo” (ver sentencia número 2002-004258 de las 9 horas 40 minutos del 10 de mayo de 2002) (los destacados son del memorial).

Señala que la tesis jurisprudencial expuesta ha sido la misma que esa Procuraduría, en funciones de órgano asesor objetivo de la Sala Constitucional, sugirió seguir en los informes rendidos en las acciones de inconstitucionalidad No. 2340-92 y 3631-96 en las que se dictaron respectivamente las sentencias números 3063-95 y 4258-2002 citadas. Agrega que también lo indicaron así en las opiniones jurídicas números 056-2016 del 26 de abril de 2016, 069-2016 del 12 de mayo de 2016, 075-2017 del 21 de junio de 2017 y 104-2017 del 16 de agosto de 2017. Manifiesta que, además, la Sala al evacuar la consulta de constitucionalidad planteada con respecto al proyecto de ley No. 19.922 que culminó con la aprobación de la Ley No. 9544, reiteró que la regulación del régimen de pensiones del Poder Judicial no forma parte de la organización y funcionamiento de ese Poder:

“…la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios, y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial, pero claramente, no fue creado como un elemento intrínseco de la independencia judicial (aspecto medular de la protección constitucional del 167 cuando habla de “estructura y funcionamiento”), la cual se sustenta constitucionalmente en otros factores, como la existencia de una carrera que garantiza la objetividad en la selección de los jueces, basada en criterios de idoneidad y estabilidad, la independencia económica y política del órgano, entre otros; pero bien pudo el legislador optar por un régimen único para todos los empleados públicos o trabajadores en general, sin que pudiera afirmarse que eso le resta independencia al órgano” (sentencia No. 5758-2018 de las 15 horas 40 minutos del 12 de abril de 2018) (los destacados son del memorial).

Argumenta que, en virtud de lo anterior y para el caso concreto, la Procuraduría no considera que se esté ante uno de los supuestos en los que resulte aplicable la consulta obligatoria prevista en el artículo 167 de la Constitución Política.

• 2)Respecto a la omisión de otorgar audiencia, durante el trámite legislativo, a la Caja Costarricense de Seguro Social y a los bancos del Estado: recuerda que los accionantes sostienen que durante el trámite legislativo debió otorgarse audiencia a la CCSS y a los bancos del Estado pues se afectó su autonomía al atribuirles funciones, competencias y obligaciones sin requerir de previo su parecer. Sobre este aspecto, indica que la defensa de la autonomía de la CCSS y de los bancos del Estado, debe ser hecha por esas instituciones, no por las organizaciones sindicales del Poder Judicial, ni por sus exfuncionarios. Considera la Procuraduría que, en cuanto a este tema, existe una falta de legitimación de los accionantes para plantear los reparos que formulan, lo cual también ha sido admitido por la Sala en algunas ocasiones como en la sentencia número 2017-014651 de las 9 horas 30 horas del 13 de septiembre de 2017, en la que se indicó, en lo que interesa:

“(…) este Tribunal Constitucional ha indicado que la defensa de la autonomía de una institución debe hacerla ante esta instancia esa misma entidad y no un tercero (votos Nos. 2008-014190 de las 10:00 hrs. del 24 de septiembre de 2008, 2008-017295 de las 14:48 hrs. del 19 de noviembre del 2008, 2016-01669 de las 9:30 hrs. del o3 de febrero de 2016 y 2017-008159 de las 9:15 hrs. del 2 de junio de 2017). En el sub judice, el accionante actúa en su condición de representante de una sociedad anónima, motivo por el cual, no se encuentra legitimado para actuar en defensa de la autonomía municipal” Argumenta que, partiendo de lo dicho, es criterio de la Procuraduría General que las razones de inconstitucionalidad planteadas por los accionantes por la posible violación de la autonomía de la CCSS y de los bancos del Estado, resulta inadmisible.

• 3)Sobre la violación al principio de publicidad: aduce que, según los accionantes, durante el trámite legislativo que culminó con la aprobación de la Ley No. 9544, se violó el principio de publicidad pues no se publicaron los textos sustitutivos utilizados durante dicho procedimiento. En relación con este aspecto manifiesta que la Sala analizó a profundidad, si la reforma al régimen de pensiones del Poder Judicial, respetó el principio de publicidad que debe observarse durante todo el trámite legislativo; análisis que se realizó con motivo de la consulta de constitucionalidad evacuada mediante sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 y en lo que interesa, esa resolución sostuvo:

“XII.-Sobre la alegada violación al principio de publicidad. Los(as) consultantes aducen que el texto sustitutivo aprobado por la Comisión Especial en la sesión del 13 de septiembre de 2016 no fue publicado, lo que, a su parecer, contraviene el principio de publicidad, así como las reglas fijadas por el procedimiento especial aprobado para el expediente número 19.922. Sobre el particular, de la prueba rendida por el director ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018, se desprende que, si bien el documento mencionado no fue publicado, lo cierto es que dicho texto sustitutivo no tuvo ninguna incidencia, toda vez que el texto sustitutivo aprobado fue otro, por lo que no se afectó el principio de publicidad. Hay que tener presente que la publicidad no es un fin en sí mismo, tal y como lo ha sostenido este Tribunal en la opinión consultiva número 2018-003851, cuando estableció lo siguiente:“Ciertamente, tal como se señaló en la sentencia N° 2006-009567, la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático. Ahora bien, a la luz de lo señalado en la sentencia N° 2013-008252, deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados. Como se dice en la sentencia N° 2013-008252 recién transcrita “…Tal cualidad potencia a nivel constitucional el propósito fundamental de la publicidad: promover la intervención de la ciudadanía en las decisiones fundamentales del Estado. Si este fin no resulta vulnerado y se advierte que no se ha dado una verdadera obstaculización a la participación popular, entonces un error en la publicación no puede llegar a configurar por sí solo un vicio esencial del procedimiento legislativo”. (El subrayado es agregado). Mutatis mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo; de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo”. Así las cosas, no se presenta una violación al principio de publicidad, tal y como aduce en el escrito inicial de esta consulta legislativa, pues no ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento parlamentario. Por lo anterior, se descarta el alegato planteado” (los destacados son del memorial).

Adicionalmente señala que es público y notorio que las organizaciones sindicales del Poder Judicial, siguieron activamente todo el trámite legislativo que culminó con la aprobación de la Ley N° 9544; trámite al cual se le otorgó además una amplia cobertura periodística, por lo que la Procuraduría considera que no es posible afirmar que hubo alguna omisión grave en la publicidad del proyecto que pudiese justificar la anulación de dicha ley.

• 4)Respecto a la posible inconstitucionalidad del artículo 208 bis, del Reglamento de la Asamblea Legislativa: menciona que, para los accionantes, el procedimiento legislativo especial que autoriza el artículo 208 bis del Reglamento de la Asamblea Legislativa, es inconstitucional por infringir el principio democrático, el de seguridad jurídica, el de participación política y el principio de representación. Indica que esa Procuraduría se ha pronunciado en varias ocasiones a favor de la validez constitucional del artículo 208 bis del Reglamento Legislativo; norma que prevé la posibilidad de dar un trámite especial a una iniciativa legislativa, siempre que para ello estén de acuerdo al menos 38 diputados. Aduce que, en esa línea, su representada ha sostenido que la posibilidad de otorgar ese trámite especial, por sí misma, no violenta el principio de inderogabilidad singular del reglamento, ni el principio democrático, en sus distintas manifestaciones. Señala que al contestar la audiencia conferida en la acción de inconstitucionalidad que se tramitó bajo el expediente N° 11-012867-0007-CO, su representada indicó, lo siguiente:

“… el artículo 208 bis fue adicionado al Reglamento de la Asamblea Legislativa mediante el mecanismo previsto para ese efecto, sea la moción de orden. Al adicionar el Reglamento, la Asamblea Legislativa ha ejercido su potestad reglamentaria, sin que pueda considerarse que dicho ejercicio violente el principio de inderogabilidad singular del Reglamento. El numeral 208 bis es conforme con el principio democrático y es expresión del parlamentarismo racionalizado. No puede olvidarse que luego de la Segunda Guerra Mundial los distintos ordenamientos han previsto la necesidad de dotarse de procedimientos especiales para hacer frente de una manera más célere, con reducción sobre todo de plazos, a situaciones y problemas trascendentes que desafían al Estado contemporáneo. Se parte de la necesidad de que el Parlamento contemporáneo responda con celeridad a los retos que se le presentan al Estado democrático. Esa capacidad de respuesta puede derivar del establecimiento de procedimientos especiales para ciertas materias o bien, de disponer reducciones de plazos o trámites más céleres en relación con el cauce normal legislativo, todo con el objeto de mantener el régimen democrático y los principios que lo rigen, los cuales se ven afectados cuando el Parlamento no es capaz de responder. Y este es el objeto propio del artículo 208 bis” (los destacados son del memorial).

Por su parte, recuerda que la Sala ha resuelto que el artículo 208 bis del Reglamento Legislativo, es constitucionalmente válido siempre que en cada caso concreto se respete el principio democrático, el de participación de las minorías y el de seguridad jurídica:

“V.- CONDICIONES BAJO LAS CUALES EL PROYECTO DE ADICION DE UN ARTICULO 208 BIS AL REGLAMENTO DE LA ASAMBLEA LEGISLATIVA RESULTA SUSTANCIALMENTE CONFORME CON EL DERECHO DE LA CONSTITUCIÓN. A) Respeto del principio democrático y de participación política y libre de las minorías: Este Tribunal Constitucional entiende que el proyecto de adición del artículo 208 bis al Reglamento de la Asamblea Legislativa resulta conforme con el Derecho de la Constitución, siempre y cuando se disponga o interprete que la moción de orden ahí dispuesta debe ser aprobada por votación no menor de las dos terceras partes del total de los miembros de ese órgano, puesto que, establecer o disponer procedimientos especiales para el trámite de la reforma al Reglamento y ciertos proyectos de ley, supone una reforma o modificación del Reglamento, esto es, de los procedimientos ordinariamente dispuestos, de modo que para cumplir con lo estatuido en el numeral 121, inciso 22), de la Constitución Política y, sobre todo, para ser congruentes con los principios democrático y de participación de las minorías en la toma de una decisión fundamental o trascendental, debe requerirse tal mayoría calificada o agravada que supone la obtención de un consenso legislativo en el que concurran, para su respeto, distintas orientaciones político-partidarias o ideológicas. A lo anterior, debe agregarse que la observancia de los recaudos establecidos en el acuerdo interpretativo No. 4084 del 10 de junio de 1999 –por tratarse del ejercicio del poder de reforma- garantiza tales principios, tal y como lo expuso esta Sala en el Voto No. 8408 de las 15:24 hrs. del 3 de noviembre de 1999, parcialmente transcrito en el considerando tercero de esta sentencia. B) Observancia del principio de seguridad jurídica: En aras de ajustar el proyecto de adición al principio constitucional de la seguridad jurídica y de evitar cualquier cualquier factor sorpresivo, este Tribunal asume que debe disponerse o entenderse que la moción que reforma el reglamento, al establecer un procedimiento especial, debe indicar de forma suficientemente explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial, de modo que como se requiere de las dos terceras partes del total de los miembros de la Asamblea Legislativa en su determinación, también, se respeten los principios democrático y de participación política y libre de las minorías” (ver sentencia n.° 398-2005 de las 12:10 horas del 21 de enero del 2005. En el mismo sentido puede consultarse la sentencia 7687-2008 del 7 de mayo del 2008 y la 4151-2012 del 27 de marzo del 2012) (los destacados son del informe).

En cuanto a este extremo, concluye que al no haber razones de peso para cambiar de criterio, esa Procuraduría considera que el artículo 208 bis del Reglamento Legislativo, no es inconstitucional por sí mismo.

• 5)Sobre la improcedencia de aplicar el artículo 208 bis del Reglamento Legislativo a un proyecto que requiere mayoría calificada: recuerda que el artículo 208 bis de la Asamblea Legislativa regula la posibilidad de otorgar un trámite especial a un proyecto de ley cuando, dos terceras partes de los miembros de ese órgano legislativo, lo acuerden así mediante la aprobación de una moción de orden; posibilidad que aplica en relación con proyectos de ley que requieran mayoría absoluta para su aprobación, lo que implica que, aquellos proyectos para los cuales se exige mayoría calificada, no pueden seguir un trámite de ese tipo. Añade que, en el caso de la reforma al régimen de pensiones del Poder Judicial ?como ya se expuso?, su representada estima que es una materia que no afecta la organización ni el funcionamiento del Poder Judicial por lo que no es necesario, dentro del trámite legislativo, realizar la consulta previa a la que se refiere el artículo 167 de la Constitución Política, ni reunir la mayoría calificada para la aprobación del proyecto de ley en caso de que el criterio del Poder Judicial haya sido negativo. Partiendo de lo anterior, afirma que la Procuraduría no observa vicio alguno en el hecho de que se haya utilizado el procedimiento del artículo 208 bis del Reglamento Legislativo para la aprobación de la Ley N° 9544 pues, en su criterio, para realizar una reforma al régimen de pensiones del Poder Judicial, basta con que la ley respectiva sea aprobada mediante mayoría absoluta.
• 6)Sobre la razonabilidad, proporcionalidad y justicia de la reducción de prestaciones y del aumento de la edad de retiro y del tiempo de servicios: indica que, según los accionantes, la reforma al régimen de pensiones del Poder Judicial viola los principios de razonabilidad, proporcionalidad y de justicia pues, por una parte, se aumenta la edad de retiro y el número de años de cotización, mientras que, por otra, se reducen las prestaciones económicas que ha de recibir el futuro jubilado; asimismo sostienen que, como producto de la reforma, una vez aplicados los rebajos establecidos, el monto de la pensión resulta inferior al 55% del último salario, lo que consideran excesivo. Sobre este tema, señala que la necesidad de realizar los cambios en el régimen de pensiones del Poder Judicial que se acusan de inconstitucionales, se derivan directamente de los estudios actuariales en que se fundamentó dicha reforma; en otras palabras, incrementar la edad de retiro y el número de años de cotización así como reducir las prestaciones económicas a favor de los jubilados, no es una decisión que haya sido adoptada por capricho del legislador, sino que es el resultado de la situación del régimen que se vio reflejada en los estudios actuariales mencionados. Agrega que este punto fue sometido a control de constitucionalidad mediante la consulta facultativa que se tramitó bajo el expediente número 17-017148-0007-CO y en esa oportunidad, la Sala resolvió que las reformas incorporadas al régimen de pensiones del Poder Judicial, en relación con las cotizaciones, la edad de retiro y la cuantía de las pretensiones, no son contrarias a la Constitución:

“… Los(as) consultantes aducen que los artículos 224 y 227 del proyecto ley lesionan el principio de independencia judicial, en el tanto la pensión que recibirán los juzgadores(as), luego de aplicados los rebajos establecidos legalmente, será inferior al 55 % del último salario, lo que constituye una cifra ruinosa. Asimismo, alegan que dicha situación hará que varios(as) servidores(as) opten por abandonar la judicatura, por lo que se presenta una medida indirecta de presión por parte de otro Poder de la República, que necesariamente influirá en el margen de libertad de los jueces, para que estos desistan de perseguir una verdadera carrera judicial. Dichas normas, disponen lo siguiente (…) Cabe mencionar que la normativa que se cuestiona se sustenta en los estudios actuariales que dan base al proyecto de ley. En ese sentido, en el oficio IICE-186-2017 del 18 de agosto de 2017 del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, se menciona sobre el tema en cuestión, lo siguiente:

“(…), el equipo del IICE considera más adecuado y conveniente establecer un aporte obrero único claramente definido y con un vínculo razonable entre el aporte y el beneficio que reciben los afiliados al fondo. En este caso, el equipo considera que un aporte único del 13% (aplicado a activos, jubilados y pensionados) sería compatible con un beneficio de 82% calculado sobre el salario de referencia de 240 meses Es importante destacar que el Dictamen de Mayoría fija el aporte patronal en 14,36% (artículo 236 inciso 2) desvinculándolo de incrementos proporcionales en el aporte obrero, aspecto que se apega a lo recomendado por el IICE.

(…)

d. Contribución especial, solidaria y redistributiva de los jubilados y pensionados.

En el artículo 236 bis el Dictamen de Mayoría propone una contribución solidaria –adicional aporte ordinario- que empieza en un 35% y llega hasta el 55% sobre el tope de la jubilación o pensión. El porcentaje aplicado varía en función de la magnitud del exceso sobre el tope.

El esquema planteado por el Dictamen de Mayoría actúa a favor del fondo respecto de los marcos IICE 3 e IICE 4 en ese aspecto, debido a que la contribución solidaria en el texto de mayoría se dispone como “adicional al aporte ordinario” mientras que en los marcos IICE 3 e IICE 4 el aporte ordinario se incluye en el 50% de la contribución solidaria, lo que la convierte (n esos marcos IICE_3 e IICE_4) en una contribución neta de 39% o 35 %, para aportes ordinarios de 11% y 15%, respectivamente”.

Considera la Sala que con lo anterior se cumple con lo establecido por la doctrina internacional, en el sentido de que son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas, situación que se cumple en este caso, tomando en cuenta los análisis efectuados por la Universidad de Costa Rica en los estudios actuariales del Fondo de Pensiones y Jubilaciones del Poder Judicial (Sentencia N° 5758-2018 de las 15:45 horas del 12 de abril del 2018) (los destacados son del informe).

Precisa que, de conformidad con el artículo 236 de la LOPJ, el total de las deducciones que por ley deben aplicarse al monto de la pensión, no pueden superar el 55% de su monto bruto; norma que, en lo que interesa, dispone que “En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión”. Indica que, atendiendo lo dispuesto en la norma parcialmente transcrita, no es posible que el monto de las deducciones legales que se apliquen a la pensión de un funcionario judicial, superen el 55% del monto bruto de la prestación y si ello llegare a ocurrir, ya no se estaría en presencia de un problema de constitucionalidad de la norma, sino de su aplicación, lo cual no es revisable en esta vía. Argumenta que, en síntesis, la razonabilidad, proporcionalidad y justicia de la reforma legislativa a un régimen de pensiones, debe tener como parámetro los datos que arrojen los estudios técnicos -que es donde se tiene que reflejar la magnitud de los cambios a realizar- y, en este caso, considera la Procuraduría que los cambios operados en el régimen de pensiones del Poder Judicial, cuentan con el respaldo técnico necesario para afirmar su ajuste al Derecho de la Constitución.

• 7)Sobre la presunta ausencia de estudios técnicos: en cuanto a este punto, los accionantes consideran que la reforma al régimen de pensiones del Poder Judicial careció de los estudios técnicos necesarios para justificar la procedencia de las variaciones que le fueron introducidas. Sobre el particular, indica que dentro de los límites a la potestad legislativa de configuración de los distintos regímenes especiales sustitutivos de pensiones, se encuentra el respeto que debe privar por los principios constitucionales de razonabilidad y proporcionalidad, así como el necesario ajuste de la ley a la prohibición de confiscatoriedad. Aduce que la mejor forma de evitar infracciones a esos principios constitucionales es fundamentando las reformas en estudios técnico-actuariales que evidencien la necesidad, la razonabilidad y la proporcionalidad de la iniciativa. Recuerda que, sobre el tema, la Sala Constitucional ha indicado que “ … esa posibilidad de modificación que tiene acordada a su favor el Estado, encuentra límites no sólo provenientes de la Constitución Política, sino del Derecho Internacional, entre los que se destacan los fijados en el Convenio número 102 de la Organización Internacional del Trabajo relativo a la norma mínima de seguridad social, que señala, en lo que aquí interesa, que las prestaciones concedidas en aplicación del citado Convenio y los gastos de administración se encuentren respaldados en estudios técnicos y no que sean implantados o modificados por una decisión política, arbitraria o antojadiza de la Administración, prestaciones entre las cuales se encuentra el monto de cotización para el régimen de pensiones por parte del empleado y el Estado como tal y como patrono y que obliga a fundamentar esas variaciones en estudios actuariales relacionados con la solvencia del régimen por afectar” (sentencia N° 2379-96 de las 11:06 horas del 17 de mayo de 1996) (los destacados son del informe). Aduce que, evidentemente, el legislador cuenta con cierto margen de discrecionalidad para regular las condiciones bajo las cuales deben operar los regímenes especiales de pensiones, pero ese margen no es absoluto, sino que debe encontrar respaldo en datos objetivos emanados de estudios técnicos. Indica que, en el caso de la reforma al régimen de pensiones del Poder Judicial realizada por medio de la Ley N° 9544, la Procuraduría considera que sí se fundamentó en estudios actuariales que fueron los que perfilaron los alcances de dicha reforma; estudios que fueron realizados por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica y, con base en ellos, fue que se establecieron los elementos básicos del régimen, como la cotización, el porcentaje de la contribución especial solidaria, el cálculo de las prestaciones, etc. Añade que, con respecto a la existencia de los estudios técnicos necesarios para respaldar la reforma, la Sala en la sentencia N° 5758-2018 de repetida cita, indicó lo siguiente:

“XIX.-Sobre la falta de estudios para fijar el cálculo de la pensión. Los(as) consultantes estiman que el artículo 224 del proyecto de ley es contrario al numeral 73 de la Constitución Política. Aducen que el artículo cuestionado dispone que el cálculo de la pensión se obtendrá del promedio de los salarios de los últimos 20 años devengados por la persona trabajadora, sin contar con estudios técnicos con respecto a cuál será el impacto real sobre las reservas del fondo. Agregan que el estudio que sirvió de base fue el emitido por la Universidad de Costa Rica, pero en este se fijó como límite para el cálculo de la pensión los últimos 120 salarios (10 años), por lo que estiman que la Comisión Especial se extralimitó en sus apreciaciones, toda vez que, sin fundamento técnico, varió el criterio de cálculo de los últimos 120 salarios a uno de 240 salarios. Asimismo, consideran que resulta ilegítimo que se tome como absoluto el porcentaje anual de los rendimientos en un 3%, de las inversiones del Fondo, sin tomar en cuenta que los rendimientos reales fueron mayores. En lo que atañe al primero de los alegatos, la Sala considera que tras analizar los autos, se descarta el vicio acusado, pues a folio 2942 del expediente legislativo consta el oficio número IICE-186-2017 del 18 de agosto de 2017, en el que el director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica avala el parámetro establecido por el artículo 224 del proyecto ley, al mencionar, sobre el particular, lo siguiente:

“a. Salario de referencia para el cálculo del monto de la jubilación o pensión En el artículo 224 a reformar, el Dictamen de Mayoría calcula el salario de referencia (SR) como el promedio de los últimos 20 años (SR20), actualizado con el índice de precios al consumidor calculado por el INEC, mientras que los marcos IICE_3 e IICE_4 lo calculan como el promedio de los últimos 10 años (SR10), ajustado por el mismo índice. Se estimó que el salario promedio de los últimos 20 años, ajustado por inflación, es un 4.8% menor que el salario promedio de los últimos 10 años para los nuevos pensionados, dada la escala de mérito vigente en el Poder Judicial. Esta diferencia entre el Dictamen de Mayoría y los marcos IICE, tomada en forma independiente de los otros componentes de la normativa propuesta, actúa a favor de la solvencia actuarial del fondo de jubilaciones y pensiones, aspecto al que haremos referencia en el inciso siguiente.

b. Aporte obrero y beneficio de los afiliados (…)

Ahora bien, el Dictamen de mayoría propone un beneficio del 85% de un salario de referencia de 240 meses (en vez de 120 meses), con un aporte obrero que, como se comentó, consiste en una escala diferencia entre 11% y 15%. Ya se señalaron problemas conceptuales y operacionales asociados a la aplicación de esa escala que, al quedar a criterio de la Junta Administradora del propio Poder Judicial, corre además el riesgo de fijarse en la práctica más cerca del 11% que del 15% lo que, combinado con un beneficio del 85% del salario de referencia, afecta negativamente la solvencia actuarial del fondo.

A este respecto, el equipo del IICE considera más adecuado y conveniente establecer un aporte obrero único claramente definido y con un vínculo razonable entre este aporte y el beneficio que reciben los afiliados al fondo. En este caso, el equipo considera que un aporte único de 13% (aplicado a activos, jubilados y pensionados) sería compatible con un beneficio de 82% calculado sobre el salario de referencia de 240 meses. Es importante destacar que el Dictamen de mayoría fija el aporte patronal en 14,36% (artículo 236, inciso 2), desvinculándolo de incrementos proporcionales en el aporte obrero, aspecto que se apega a lo recomendado por el IICE”.

En ese sentido, al constatar que, contrario a lo que se afirma en el escrito inicial, sí existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.

Por otra parte, en lo que respecta al segundo de los alegatos de los(as) consultantes, la Sala considera que, en el fondo, lo que se cuestiona es si los parámetros que sirvieron de base para fijar los requisitos para obtener el derecho de pensión eran los idóneos o no, extremo que no implica que la norma sea inconstitucional, tal y como estiman los(as) consultantes, de ahí que se considere que el vicio es inexistente” (los destacados son del informe).

Indica que, partiendo de lo expuesto, considera ese órgano asesor que sí existen los estudios técnicos que los accionantes echan de menos para cuestionar la validez de la reforma al régimen.

• 8)Respecto a la contribución especial, solidaria y redistributiva y la posible afectación a derechos adquiridos y al principio de igualdad: sobre este extremo, considera la Procuraduría que si bien es cierto, existe un derecho fundamental a la pensión ampliamente reconocido en la jurisprudencia de esa Sala, también lo es que ese Tribunal ha precisado que no existe un derecho a que la prestación derivada de ese derecho, lo sea por un monto específico, pues “… la pensión o jubilación puede variarse según las circunstancias, ya sea para recalificar el beneficio aumentándolo o disminuyéndolo, cuando el aporte de los beneficios no sea suficiente para cubrir su cuota en el costo del régimen...” (sentencias 1925-91 de las 12:00 horas del 27 de setiembre de 1991, 2379-96 de las 11:06 horas del 17 de mayo de 1996 y 3250-96 de las 15:27 horas del 2 de julio de 1996). Argumenta que, en el caso de las contribuciones especiales, la Sala en su sentencia número 3250-96 de las 15 horas 27 minutos del 2 de julio de 1996, indicó que tales contribuciones no son inconstitucionales por encontrar fundamento en la naturaleza social del derecho a la jubilación; naturaleza que se inscribe dentro de los principios que conforman el Estado Social de Derecho, recogidos por el artículo 50 de la Constitución Política. Indica que, en la resolución mencionada, la Sala ratificó la validez de una contribución impuesta a los pensionados del régimen del Magisterio Nacional, señalando lo siguiente:

“… la contribución que se fija a cargo de los pensionados del Régimen de Pensiones del Magisterio Nacional en el artículo 12, y la exclusión que de dicha contribución se hace como derecho adquirido en el transitorio I ambos de la Ley número 7268, no lesionan el artículo 34 de la Constitución Política, por formar parte del elenco de limitaciones que válidamente han formado parte el derecho fundamental a la jubilación que ostenta el accionante desde su ingreso y de las cuales no puede sustraerse porque las adquirió junto con él. (…) La forma en que el artículo 12 de la Ley 7268 regula la contribución a cargo de los pensionados del Régimen del Magisterio Nacional, no contraviene el artículo 45 de la Constitución Política, primero, porque respeta el principio de progresividad (única falta que se hizo notar al evacuar en su oportunidad la Consulta Legislativa y que el Parlamento se encargó de enmendar) con lo que deja prácticamente intacto un monto suficiente a juicio de la Sala para garantizar el efectivo disfrute del derecho a la jubilación, y segundo, porque los montos que se cobran por los distintos excesos que ocurran en casos concretos tienen un claro fin protectivo y uniformador en beneficio del grupo de personas para quienes fue establecido el régimen; es decir, están dirigidas al bienestar social de todos o bien de la gran mayoría de los miembros para los cuales se concibió el régimen. Ello puede conllevar que en algunos sistemas jubilatorios existan normas redistributivas para aquellos casos que pueden llamarse si se quiere, extraños a la razón de ser del régimen y que deben por lo tanto, sufrir un proceso de uniformación para asimilar los beneficios percibidos (en la medida de lo necesario y posible) a los que reciben la mayoría de los beneficiados del régimen, teniendo que hacer, en consecuencia, −si es su deseo seguir disfrutando de los beneficios del sistema− un mayor aporte por recibir una mayor contraprestación en relación con las personas que fueron tomadas en consideración al diseñarse el sistema −en este caso, los maestros−, quienes perciben un salario sustancialmente menor y, en consecuencia, lo es también su jubilación o pensión. Justo es pues −por el carácter solidario del régimen− fijar un monto máximo suficientemente alto que permita incluir los salarios superiores de los beneficiarios propios del fondo y someter a mayor exigencia participativa a los que estén por encima de él, por provenir siempre de obligaciones no contempladas dentro de las tomadas en consideración al fijar las bases del sistema.” Manifiesta que, partiendo de lo anterior, es claro que nada se opone, dentro del marco constitucional, a que el legislador imponga una contribución como la que contempla la ley cuestionada, siempre que esa contribución sea progresiva y proporcional, como ocurre en este caso. Por otra parte, indica que no estima ese órgano asesor de la Sala Constitucional que la contribución especial, solidaria y redistributiva impuesta a los beneficiarios del régimen de pensiones del Poder Judicial, viole el principio de igualdad al afectar solamente a los empleados judiciales, pues contribuciones del mismo tipo aplican en otros regímenes de pensiones, por ejemplo, en el del Magisterio Nacional (artículo 71 de la Ley N° 2248 de 5 de setiembre de 1958), y en los regímenes con cargo al presupuesto nacional (Ley N° 9383 del 29 de julio del 2016 y artículo 11 de la Ley Nº 7302 del 8 de julio de 1992). Manifiesta que, ciertamente, las cargas que soportan los servidores del Poder Judicial son distintas a las que soportan los afiliados al régimen general de invalidez, vejez y muerte de la CCSS; sin embargo, ello no hace que la contribución especial, solidaria y redistributiva a cargo de los funcionarios judiciales, vulnere el principio de igualdad ni el “principio de unidad de la seguridad social”, pues se trata de regímenes de pensiones distintos, con características diferentes, por lo que no se podría pretender tomar de cada uno lo que resulte más beneficioso para el interesado. Añade que la Procuraduría tampoco considera que se esté ante un supuesto de doble imposición, pues una cosa es la cotización al fondo que se impone a todos los beneficiarios del régimen de pensiones del Poder Judicial, y otra es la contribución solidaria y redistributiva que se impone solamente a los pensionados que reciben prestaciones económicas que superan diez veces el salario base del puesto más bajo pagado en el Poder Judicial; contribución que además es proporcional y progresiva, y tiene una naturaleza distinta a la de la cotización, por lo que no se estima que sea contraria a la Constitución Política.

• 9)Sobre la atribución conferida a la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial para modificar los requisitos de elegibilidad, beneficios, aportes y cotizaciones: señala que, según los accionantes, la posibilidad que le atribuye el artículo 239 de la LOPJ, reformado por la Ley Nº 9544 a la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial de modificar los parámetros iniciales establecidos en esa ley con respecto a los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones, infringe el principio de reserva legal que aplica en materia de regulación de derechos fundamentales. Al respecto, la Procuraduría General estima que la potestad otorgada a la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial para modificar los parámetros iniciales establecidos en esa ley, no es inconstitucional siempre que se interprete que dicha atribución solo puede ejercerse dentro de los márgenes establecidos actualmente en la ley o en aquellos que lleguen a establecerse en el futuro, ello debido a que el derecho a la pensión es un derecho fundamental, y el régimen jurídico de los derechos fundamentales está reservado a la ley, que es la llamada a definir sus contornos básicos, entre ellos, los requisitos de elegibilidad, el perfil de beneficios, la cuantía de los aportes y las cotizaciones, etc. Manifiesta que, de llegar a interpretarse que la Junta Administrativa puede, por ejemplo, incrementar el aporte del Estado como tal, y del Estado como patrono al Régimen del Poder Judicial, podrían llegar a infringirse los precedentes de la jurisdicción constitucional, según los cuales, los regímenes especiales de pensiones son constitucionalmente válidos siempre que los aportes del Estado sean los mismos con los que se contribuye al régimen general de Invalidez, Vejez y Muerte.
• 10)Respecto al plazo otorgado para la aplicación de la reforma a los funcionarios activos: indica que, en criterio de los accionantes, el transitorio VI de la Ley N° 9544, viola los derechos adquiridos de los empleados judiciales pues sólo respeta el derecho a jubilarse con la normativa anterior a las personas que, a la entrada en vigencia de esa ley, tuviesen 28 años y 6 meses de servicio, lo que desconoce el derecho de los empleados con una antigüedad de 20 años o más. Argumenta que, sobre el punto, se debe indicar que el artículo 34 de la Constitución Política establece que a ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas. Añade que, en el caso de la pensión o jubilación, el derecho a disfrutarla se adquiere cuando se cumplen todos los requisitos previstos en la normativa que rige la materia; requisitos dentro de los que se encuentran la edad, los años de servicio, etc. Afirma que, antes de que se cumplan esos requisitos, lo que existe es una simple expectativa de derecho, que no es asimilable -siquiera- a una situación jurídica consolidada. Argumenta que, a pesar de lo anterior, la Sala Constitucional ha validado que para proteger al eventual beneficiario de un determinado régimen especial de jubilación o pensión de cambios repentinos que pueden agravar los requisitos para obtener el reconocimiento de la prestación, si el legislador así lo estima conveniente y decide regularlo por derecho transitorio, es suficiente el plazo de 18 meses para que la modificación de las condiciones específicas no afecten al administrado que cumpla los requisitos dentro de ese lapso. Refiere que, mediante su sentencia N° 846-92 de las 13 horas 30 minutos del 27 de marzo de 1992, refiriéndose al entonces proyecto de ley de Creación del Régimen General de Pensiones con Cargo del Presupuesto Nacional, la Sala dispuso −entre otras cosas− que: "−en sus artículos transitorios− reconoce la conservación de la situación jubilatoria de los servidores que hubieran cumplido los requisitos para gozar del beneficio, y además lo extiende a los que pertenezcan o hayan pertenecido a los regímenes excluidos para adquirirlo, en un lapso de dieciocho meses, el cual parece razonablemente suficiente para garantizar cualesquiera eventuales derechos de buena fe". Señala que, con ello, la Sala consideró que no sólo se garantizaba el derecho de las personas que al entrar en vigencia la ley tuvieran cumplidos los requisitos para jubilarse o pensionarse al amparo de la legislación que se pretendía modificar, sino que lo extendió a los que se ubicaran en una edad cercana que les permitiría hacerlo (18 meses posteriores a la reforma), ello siempre y cuando se hubiesen cumplido los supuestos de hecho que dichas normas establecían, a pesar de su derogatoria. (véase también la sentencia N° 5476-93 de 18 horas 03 minutos del 27 de octubre de 1993). Argumenta que lo anterior acredita que, en el país, se reconoce a nivel constitucional únicamente el "derecho adquirido" a la jubilación cuando se han cumplido todos los requisitos exigidos al efecto, mientras que el mal denominado "derecho de pertenencia" −que no es más que una simple expectativa−, queda reducido exclusivamente a quienes a pocos meses posteriores a una reforma (al menos 18 meses), lleguen a alcanzar aquellos requisitos necesarios para recibir el beneficio concreto según la normativa modificada, lo cual es así sólo cuando el propio legislador, por introducción expresa de normas transitorias, lo haya dispuesto de esa manera. Afirma que, más allá de eso, ese derecho de pertenencia es una simple expectativa que se extingue con la reforma o derogación introducida por la nueva normativa que sea promulgada. Argumenta que si bien la jurisprudencia constitucional ha reconocido que, en el caso de los regímenes contributivos de pensión, la cotización origina un “derecho de pertenencia”, ello no hace inmodificable las reglas del sistema. Manifiesta que, en este caso, el transitorio VI de la Ley N° 9544 dispone que “Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del Título IX de la Ley N°7333 del 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”; disposición que, –aún cuando es facultativa para el legislador (por lo que podría no existir sin que ello implique infracción constitucional alguna)- permite afirmar que los cambios en el régimen no fueron intempestivos ni repentinos, por lo que la Procuraduría no comparte las razones de inconstitucionalidad aducidas por los accionantes.
• 11)Sobre el respeto a criterios obligatorios de género: aduce que, según los accionantes, el artículo 224 de la LOPJ, reformado por la Ley N° 9544, no respeta criterios obligatorios de género, aparte de que otorga pensiones relativas más altas a quienes tienen salarios mayores, y de menor cuantía a quienes ostentan un salario más bajo, lo cual rompe los principios de redistribución y solidaridad de las pensiones y hace al régimen desigual y discriminatorio. En lo que se refiere a la posible inconstitucionalidad del artículo 224 de la LOPJ por no aplicar criterios obligatorios de género, indica que ese tipo de diferenciaciones solo se justifican cuando los estudios técnicos sugieran la necesidad de un tratamiento diferenciado, lo que inclusive fue resuelto por la Sala al conocer la consulta facultativa de constitucionalidad planteada dentro del expediente N° 19922 que culminó con la aprobación de la Ley N° 9544, señalándose lo siguiente:

“… a criterio de esta Sala el hecho de que no se haga una diferenciación por razón de género en los términos que mencionan los (as) consultantes, no conlleva un vicio de inconstitucionalidad, pues debe tomarse en cuenta que los requisitos para obtener un beneficio jubilatorio obedecen a criterios objetivos que se fijan a partir de estudios técnicos, que establecen requisitos como la edad y el número de cuotas que una persona debe cumplir para garantizar la sostenibilidad de un régimen de pensiones, con independencia del género del cotizante. Hay que tener presente que los (as) consultantes no aportan estudios técnicos para sostener la inconstitucionalidad alegada, de forma tal que se justifique de forma objetiva hacer la diferenciación que se echa de menos, lo cual no significa que, en un futuro, este Tribunal, por medio del control a posteriori de constitucionalidad, no analice el agravio planteado con base en estudios técnicos pertinentes que se lleguen a aportar” (sentencia N° 5758-2018 de las 15 horas 45 minutos del 12 de abril del 2018) (los destacados son del informe).

Apunta que, en todo caso, el artículo 224 bis de la LOPJ relacionado con el tema de la pensión anticipada, sí hace distinción entre hombres y mujeres con respecto a la edad de retiro; distinción que resulta muy similar a la prevista en el régimen de invalidez, vejez y muerte de la CCSS, pues se permite el retiro de las mujeres a los 60 años y de los hombres a los 62. Por otra parte, en lo que se refiere al argumento de que la reforma al régimen de pensiones del Poder Judicial es desigual y discriminatoria por otorgar prestaciones relativamente más altas a quienes tienen salarios mayores, señala que la reforma, en su totalidad, atendió los criterios técnicos emanados del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, por lo que un reparo como el que se plantea, solo sería susceptible de ser acogido si se demuestra, técnicamente, la discriminación que se acusa, lo cual afirma que no se ha hecho. Advierte además que la creación de la contribución especial, solidaria y redistributiva a la que se refiere el artículo 236 bis de la LOPJ, tendió precisamente a que los pensionados con mayores ingresos, aportaran más recursos al fondo para el sostenimiento solidario del régimen.

Conclusión: con fundamento en lo expuesto, la Procuraduría General de la República sugiere a la Sala Constitucional, declarar sin lugar las acciones acumuladas a las que se refiere este informe y afirma que, en el caso del artículo 239 de la LOPJ, su representada considera que las potestades otorgadas a la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial para modificar los parámetros iniciales establecidos en esa ley con respecto a los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones, no es inconstitucional siempre que se interprete que dicha atribución solo puede ejercerse dentro de los márgenes previstos en la ley o de los que en el futuro llegaran a establecerse.

158.- Rinde su informe Carolina Hidalgo Herrera en su calidad de Diputada y Presidenta de la Asamblea Legislativa -en ese momento-, mediante documento presentado en la Secretaría de la Sala el 18 de marzo de 2019 y señala que en lo que a la legitimación se refiere, de conformidad con lo dispuesto en el artículo 75 párrafo segundo, no es necesario el caso previo pendiente de resolución cuando por la naturaleza del asunto no exista lesión individual y directa o se trate de la defensa de intereses difusos o que atañen a la colectividad en su conjunto, por lo que, en el caso concreto, no se cuestiona la legitimación de los accionantes. De seguido hace referencia a los alegatos de forma planteados en la acción.

• 1)Sobre la alegada violación al principio de publicidad (artículo 117 de la Constitución Política de Costa Rica): indica que, según los accionantes, se transgredió el principio de publicidad durante la tramitación del expediente legislativo No. 19.922 porque se omitió publicar un texto sustitutivo aprobado por la Comisión Especial, lo que consideran que conlleva una desaplicación del procedimiento especial que fuera acordado por la Asamblea Legislativa para conocer esta iniciativa de conformidad con el artículo 208 bis del Reglamento y, por tanto, estiman que es un vicio esencial al procedimiento legislativo. Manifiesta que este punto ya fue conocido y abordado por la Sala Constitucional en la resolución número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, en la que se dispuso:

“XII.-Sobre la alegada violación al principio de publicidad. Los(as) consultantes aducen que el texto sustitutivo aprobado por la Comisión Especial en la sesión del 13 de septiembre de 2016 no fue publicado, lo que, a su parecer, contraviene el principio de publicidad, así como las reglas fijadas por el procedimiento especial aprobado para el expediente número 19.922. Sobre el particular, de la prueba rendida por el director ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018, se desprende que, si bien el documento mencionado no fue publicado, lo cierto es que dicho texto sustitutivo no tuvo ninguna incidencia, toda vez que el texto sustitutivo aprobado fue otro, por lo que no se afectó el principio de publicidad. Hay que tener presente que la publicidad no es un fin en sí mismo, tal y como lo ha sostenido este Tribunal en la opinión consultiva número 2018-003851, cuando estableció lo siguiente:

“Ciertamente, tal como se señaló en la sentencia N° 2006-009567, la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático. Ahora bien, a la luz de lo señalado en la sentencia N° 2013-008252, deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados. Como se dice en la sentencia N° 2013-008252 recién transcrita “…Tal cualidad potencia a nivel constitucional el propósito fundamental de la publicidad: promover la intervención de la ciudadanía en las decisiones fundamentales del Estado. Si este fin no resulta vulnerado y se advierte que no se ha dado una verdadera obstaculización a la participación popular, entonces un error en la publicación no puede llegar a configurar por sí solo un vicio esencial del procedimiento legislativo”. (El subrayado es agregado). Mutatis mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo; de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo”.

Así las cosas, no se presenta una violación al principio de publicidad, tal y como aduce en el escrito inicial de esta consulta legislativa, pues no ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento parlamentario. Por lo anterior, se descarta el alegato planteado” (2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018).

Aduce que, en vista de que los accionantes no aportan ningún elemento nuevo o diferente a los ya alegados por los diputados en la consulta legislativa que sirvió de base a la resolución de cita, no se encuentra motivo razonable para considerar una conclusión distinta a lo dicho por la Sala en la referida sentencia. Manifiesta que, a pesar de lo anterior, para la Presidencia de la Asamblea es importante indicar que el principio de publicidad fue ampliamente garantizado por su representada durante el conocimiento y votación del expediente legislativo No. 19.922 y, en tal sentido, informa que el texto actualizado de la iniciativa fue publicado en las siguientes ocasiones: 1) Alcance número 110 del jueves 30 de junio de 2016 https://www.imprentanacional.go.cr/pub/2016/06/30/ALCA110_30_06_2016.pdfAlcance número 189 del viernes 4 de agosto de 2017- https://www.imprentanacional.go.cr/pub/2017/08/04/ALCA189_04_08_2017.pdf correspondiente al texto base de la iniciativa; 2) Alcance número 190 del lunes 7 de agosto de 2017 https://www.imprentanacional.go.cr/pub/2017/08/07/ALCA190_07_08_2017.pdf correspondiente al texto dictaminado por la Comisión Especial; 3) Alcance número 268 del jueves 9 de noviembre de 2017 2016 https://www.imprentanacional.go.cr/pub/2017/11/09/ALCA268_09_11_2017.pdf correspondiente al texto aprobado en primer debate. Añade que, de cara a la finalización de las etapas donde es posible introducir modificación y luego de consolidado el texto, la Asamblea Legislativa siempre procedió con su publicación, lo que prueba que se respetó, en todo momento, el principio de publicidad y se permitió la plena participación popular de quienes defendían y adversaron la iniciativa. Manifiesta que, en la última etapa, luego de votado en primer debate, es decir, desde la última publicación realizada luego de la votación en primer debate y hasta la votación definitiva del expediente legislativo en segundo debate, transcurrieron casi 5 meses durante los cuales la ciudadanía pudo argumentar e influenciar a favor o en contra a los diputados, fuera para votarlo a favor, votarlo en contra, o recurrir al mecanismo de reenvío a comisión (moción artículo 154). Argumenta que, en un sentido similar, la Sala Constitucional se ha pronunciado diciendo:

“Ciertamente, tal como se señaló en la sentencia No. 2006-009567, la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático. Ahora bien. A la luz de lo señalado en la sentencia No. 2013-008252, deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados (…) Mutatis Mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo, de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo” (resolución 2018-003851 de la Sala Constitucional de las 11 horas 41 minutos del 7 de marzo de 2018).

Manifiesta que, asimismo, la ciudadanía también pudo tener acceso a los diferentes textos actualizados, los dictámenes y los informes del departamento de Servicios Técnicos relacionado con la tramitación del expediente legislativo 19.922; hoy incluso, afirma que toda esa información continúa siendo de acceso a público por medio del sitio web de la Asamblea Legislativa: http://www.asamblea.go.cr/CentrodeInformación/Consultas_SIL/SitePages/ConsultaProyectos.aspx, por lo tanto, en cuanto a este aspecto, estima que los alegatos planteados deben ser rechazados por el fondo.

• 2)Sobre la falta de consulta al Poder Judicial del texto aprobado en Primer Debate en transgresión del artículo 167 de la Constitución Política: aduce que, los accionantes, en sus diferentes escritos, alegan que existió un vicio sustancial al procedimiento porque la Asamblea Legislativa omitió realizar la consulta obligatoria al Poder Judicial del texto aprobado en primer y segundo debate del expediente legislativo No. 19.922, en clara transgresión de la obligación establecida en el artículo 167 de la Constitución Política. Indica que, sobre esto, de nuevo, señala que idéntico reclamo fue atendido por la Sala Constitucional en la resolución que conoció sobre la consulta facultativa de constitucionalidad interpuesta contra el expediente legislativo 19.922; momento en el cual los Magistrados y Magistradas señalaron:

“Ahora bien, con vista en lo expuesto anteriormente, este Tribunal considera que la materia sobre la que versa el expediente legislativo número 19.922 no se encuentra dentro de los supuestos fijados por el artículo 167 de la Constitución Política y, por ende, no existía la obligación de realizar una consulta a la Corte Suprema de Justicia. En ese sentido, se establece que, si bien el proyecto cuestionado crea un órgano adscrito al Poder Judicial como es la Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial, el cual asume las funciones que anteriormente le estaban otorgadas al Consejo Superior del Poder Judicial, lo cierto es que dichos elementos se refieren a extremos que son propios del Fondo de Jubilaciones y Pensiones del Poder Judicial, sea funciones típicamente administrativas y que no tienen incidencia, al menos directamente, sobre la función jurisdiccional del Poder Judicial, que es, precisamente, lo que protege el numeral 167 constitucional. No estamos, pues, ante la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas. Nótese que el nuevo órgano –la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial- forma parte de la estructura del Poder Judicial, cuya funciones son típicamente administrativas, sea la administración del citado Fondo, lo que no es subsumible en la exigencia constitucional de modificaciones a la organización y el funcionamiento de la Corte Suprema de Justica que atañen a su función típica, exclusiva, sea la jurisdiccional y aquellas administrativas esenciales que dan soporte a su función primaria. En todo caso y sin demérito de lo anterior, es necesario mencionar que en el folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017 por la Comisión Especial, mediante oficio número AL -20035-OFI-0043-2017 del 31 de julio de 2017, la jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, procediendo la Corte Suprema de Justicia a emitir su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según se comprueba del estudio de los folios 2759 a 2807 del expediente legislativo. En ese sentido, es claro entonces que el Poder Judicial sí pudo emitir su opinión con respecto al texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, incluso antes de que éste fuera conocido por el Plenario. En virtud de lo expuesto, la Sala considera que no se presenta el vicio acusado por los(as) consultantes” (resolución 2018-005758 de las 15 horas 40 minutos del 12 de abril 2018).

Manifiesta que, dado que los accionantes no aportan ningún elemento nuevo o diferente a los ya alegados por los diputados en la consulta legislativa que sirvió de base a la resolución antes mencionada, no se encuentra motivo razonable para considerar una conclusión distinta a lo dicho por la Sala Constitucional; por lo tanto, este aspecto alegado en esta acción de inconstitucionalidad, debe ser rechazado por el fondo.

• 3)Sobre la votación requerida para la aprobación definitiva del expediente 19.922 y el incumplimiento del artículo 167 de la Constitución Política: argumenta que, en concordancia con el punto anterior, los accionantes alegan que existe un vicio esencial al procedimiento legislativo porque el proyecto “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, fue dado como “aprobado” en segundo debate a pesar de haber recibido una votación a favor menor a los 38 requeridos según dispone en el artículo 167 de la Constitución Política y para esto, los accionantes señalan que la Corte Suprema de Justicia se había pronunciado en forma negativa en contra de esta iniciativa mediante el oficio SP 288-16 de 28 de septiembre de 2019, señalando una serie de aspectos que debían corregirse y enmendarse. Manifiesta que, sobre el particular, reitera lo resuelto por la Sala Constitucional en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 en cuanto a que se considere que la materia sobre la que versó el expediente legislativo 19.922 no se encuentra dentro de los supuestos fijados por el artículo 167 de la Constitución Política dado que no existe la obligación constitucional de realizar la consulta, tampoco existe el requisito constitucional para que el proyecto deba ser aprobado por una mayoría calificada. Indica que, como consta en el acta de la sesión ordinaria del Plenario de la Asamblea Legislativa número 163 del 19 de abril de 2018, el Proyecto de Ley que fuera conocido bajo el expediente legislativo No. 19.922, fue votado de forma afirmativa por 34 diputados y diputadas, y solamente 9 en contra; de este modo y conforme con el artículo 119 de la Constitución Política, fue correcto que la Presidencia lo diera por aprobado en Segundo Debate. En consecuencia, considera que este aspecto alegado por los accionantes, debe ser rechazado por el fondo.
• 4)Sobre la transgresión al artículo 208 bis como un vicio sustancial al procedimiento dentro del expediente legislativo No. 19.922: recuerda que los accionantes alegan que no era posible la aplicación del procedimiento especial al expediente legislativo 19.922 porque, de conformidad con el artículo 167 de la Constitución Política y el criterio negativo formulado por la Corte Suprema de Justicia por medio del Oficio SP 288-16 de 28 de septiembre de 2016, esta iniciativa requería una mayoría calificada para su aprobación. Señala que el artículo 208 bis es claro en indicar que este tipo de procedimientos abreviados no pueden ser aplicados a iniciativas que requieren para su aprobación definitiva de una mayoría calificada; no obstante, como se explicó en los dos apartados anteriores, estima que los accionantes se equivocan en la consideración de que dicho procedimiento requería de consulta obligatoria a la Corte Suprema de Justicia, por lo cual, siendo que se establece que no es aplicable el artículo 167 de la Constitución Política al proyecto de ley en cuestión, en su criterio no existe motivo por el cual deba calificarse la votación y, por tanto, no es posible la nulidad alegada por los accionantes. En consecuencia, argumenta que este aspecto alegado debe ser rechazado por el fondo.
• 5)Sobre la omisión de realizar el trámite de consulta previa a la Caja Costarricense de Seguro Social y a los bancos del Estado de conformidad con el artículo 190 de la Constitución Política de Costa Rica: recuerda que, según los accionantes, el proyecto en cuestión debió haber sido consultado de forma obligatoria a la CCSS y a los bancos del Estado porque las reformas introducidas en los artículos 226, 234, 227, Transitorio II y 240 bis establecen nuevas obligaciones y afectan las competencias de las instituciones autónomas indicadas. En el caso del artículo 226, indican los accionantes que éste le atribuye una nueva obligación a la CCSS de devolver las cuotas aportadas por un servidor judicial; sin embargo, manifiesta que esto no es cierto porque dicha obligación ya estaba contemplada en el mismo artículo antes de la entrada en vigencia de la Ley No. 9544, específicamente en el artículo 231 de la Ley 7333, por lo cual, estima que no es cierto que la Ley No. 9544 venga a modificar o alterar las competencias otorgadas a la CCSS. Argumenta que, prueba de lo anterior, es el criterio sostenido por la Procuraduría General de la República en el dictamen C-294-2008 de 25 de agosto de 2008, en el que se indica, en lo que interesa:

“II.- Rubros que deben ser trasladados del Régimen de Pensiones que los recibió al Régimen del Poder Judicial Considera este Órgano Asesor que del artículo 231 de la Ley Orgánica del Poder Judicial se colige, claramente, que en caso de que un funcionario del Poder Judicial haya cotizado para otro régimen público de pensiones, este último está obligado a girar al régimen del Poder Judicial tanto las cuotas aportadas por esa persona, como los dineros depositados por el Estado para efecto de la pensión.

Ya esta Procuraduría en el dictamen C-265-2004, del 10 de setiembre de 2004, se había pronunciado sobre el tema del traspaso de cotizaciones realizadas a un régimen de pensiones distinto a aquel que otorgaría la pensión. En esa oportunidad indicamos lo siguiente:

“…es criterio de esta Procuraduría que si un servidor ha hecho cotizaciones para un régimen de pensiones determinado, y se declara su derecho a obtener una pensión por un régimen distinto, el primero de ellos está obligado a traspasar los fondos con los que presuntamente iba a otorgar un beneficio que en definitiva no otorgó.

El fundamento para gestionar el traslado de fondos (aparte de las disposiciones concretas que pueda tener cada régimen para ello) se encuentra en los principios elementales de justicia, lógica y conveniencia a que se refiere el artículo 16 de al Ley General de la Administración Pública. Ciertamente, no es justo, lógico, ni conveniente, que un régimen de pensiones se quede con dineros que otro echará de menos para otorgar un beneficio que el primero no llegó a conferir (…)

En todo caso, cabe indicar que el traspaso de fondos no consiste en el simple traslado de las cotizaciones hechas por el interesado. En ese sentido, debe tenerse presente que en materia de pensiones, la contribución al régimen (sea al general o a cualesquiera de los sustitutos) es tripartita, pues la realizan tanto el trabajador, como su patrono y el Estado. Por esa razón, los fondos que se trasladen deben comprender, en principio, esos tres tipos de cotizaciones".

En la situación en estudio, consideramos que la respuesta a la consulta que se nos plantea no podría ser distinta a la que se dio en el asunto al que se acaba de hacer mención, pues se trata de una situación muy similar, con la particularidad, incluso, de que en este caso existe una norma expresa, de rango legal, que ordena el traslado de las sumas aportadas en su momento por el Estado.

III.- CONCLUSIÓN Con fundamento en lo expuesto, considera esta Procuraduría que de conformidad con el artículo 231 de la Ley Orgánica del Poder Judicial, cuando un funcionario de ese Poder haya cotizado para otro régimen público de pensiones, éste último está obligado a trasladar al Régimen de Pensiones del Poder Judicial tanto las cuotas aportadas por esa persona, como los dineros depositados por el Estado para efecto de la pensión” Por lo tanto, argumenta que este aspecto alegado en la acción de inconstitucionalidad, debe ser rechazado por el fondo. Añade que, en este mismo sentido, los accionantes alegan que el artículo 234 y el Transitorio II establecidos en la ley bajo análisis, le imponen la obligación a la CCSS de devolver los montos cotizados y por eso son del criterio de que debió ser consultada aquella institución. Argumenta que, contrario al criterio de los accionantes, los artículos señalados le otorgan el derecho al cotizante de pedir el traslado de sus cuotas del Fondo de Jubilaciones del Poder Judicial hacia la Caja Costarricense del Seguro Social, lo cual estima que no es una obligación para la CCSS, sino para la Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial y, por lo tanto, siendo que no hay ninguna afectación para la CCSS, considera que este aspecto alegado en esta acción de inconstitucionalidad, carece de todo sentido y debe ser rechazado por el fondo. Por último, menciona que los accionantes alegan que los artículos 227 y 233 de la ley bajo estudio, afectan las competencias de la CCSS porque otorga a la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social, la responsabilidad de declarar incapacidades permanentes. Sobre este aspecto afirma que esta competencia no es otorgada por la Ley número 9544 sino que se fundamenta en el artículo 3 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, el artículo 7 del Reglamento de Invalidez, Vejez y Muerte y del Reglamento sobre la Calificación, Valoración y Dictamen del Estado de Invalidez, Vejez y Muerte de la CCSS, por lo tanto, en su opinión, no hay ninguna afectación para la CCSS, con lo cual este aspecto alegado en la acción de inconstitucionalidad, carece de todo sentido y debe ser rechazado por el fondo. Por otra parte, recuerda que según los accionantes, el artículo 240 bis de la ley en discusión, incluye graves limitaciones a la autonomía administrativa de los bancos y, por esto, debieron ser consultados de forma obligatoria; no obstante ese dicho, argumenta que la norma en cuestión no establece ninguna limitación para los bancos del Estado y advierte que, conforme lo dispone el artículo, el sujeto de las obligaciones y de las autorizaciones indicadas es la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial en cuanto establece expresamente que:

"La Junta Administradora, bajo su responsabilidad, invertirá los recursos acumulados del Fondo de Jubilaciones y Pensiones del Poder Judicial, en las mejores condiciones de mercado, de manera tal que prevalezcan los criterios de seguridad, liquidez y rentabilidad.

Dicha Junta está autorizada para colocar los recursos del Fondo de Jubilaciones y Pensiones del Poder Judicial, en las siguientes posibilidades de inversión: ..." Por lo tanto, considera que este aspecto alegado en la acción de inconstitucionalidad, debe ser rechazado por el fondo.

Ahora bien, en lo que se refiere a los planteamientos de inconstitucionalidad por el fondo que hacen los accionantes, se pronuncia de seguido.

• 1)Sobre la inconstitucionalidad del artículo 208 bis del Reglamento de la Asamblea Legislativa por la supuesta violación del Principio Democrático, Publicidad y Seguridad Jurídica: El accionante, Álvaro Rodríguez Zamora (Expediente 18-008267-0007-00), alega en su escrito inicial que el artículo 208 bis del Reglamento de la Asamblea Legislativa es inconstitucional porque deja al arbitrio de una mayoría parlamentaria la posibilidad de establecer un procedimiento especial y específico para el conocimiento y votación definitiva de un proyecto de ley por medio de una moción de orden, siendo que, en su criterio, esta discrecionalidad parlamentaria constituye una lesión al Principio Democrático porque deja a las minorías parlamentarias desprotegidas en cuanto a la afectación que ésta produce al ejercicio de sus potestades constitucionales como legisladores, alegando además que al conocerse como una moción de orden, no requiere ser publicada o deja algún tiempo prudencial de espera para su estudio, e impide el derecho de enmienda de las minorías dado que no es posible presentar mociones para modificarla, señalando finalmente que al ser un procedimiento "Ad-hoc", se viola el Principio de Seguridad Jurídica ya que las reglas dispuestas en la moción de orden, no corresponden a normas previamente establecidas en el Reglamento Legislativo. Manifiesta la informante que idénticos argumentos ya han sido analizados por el Tribunal Constitucional en, al menos, las siguientes resoluciones: a) 2005-00398 de las 12 horas 10 minutos del 21 de enero del 2005; b) 2005-02235 de las 16 horas del 27 de marzo de 2012; c) 2005-05909 de las 15 horas con 15 minutos del 18 de mayo del 2005; d) 2007-02958 de las 9 horas y 23 minutos del 2 de marzo del 2007; e) 2007-9699 de las 10 horas del 4 de julio de 2007; f) 2007-002901 de las 17 horas 30 minutos del 28 de febrero de 2007; g) 2008-07687 de las 14 horas con 50 minutos del 7 de mayo de 2008; y h) 4151-2012 las 14 horas con 37 minutos del 2 de marzo del 2005. Informa que, en la última ocasión, la Sala Constitucional -por mayoría de sus miembros- estableció:

“V.- CONDICIONES BAJO LAS CUALES EL PROYECTO DE ADICION DE UN ARTICULO 208 BIS AL REGLAMENTO DE LA ASAMBLEA LEGISLATIVA RESULTA SUSTANCIALMENTE CONFORME CON EL DERECHO DE LA CONSTITUCIÓN. A) Respeto del principio democrático y de participación política y libre de las minorías: Este Tribunal Constitucional entiende que el proyecto de adición del artículo 208 bis al Reglamento de la Asamblea Legislativa resulta conforme con el Derecho de la Constitución, siempre y cuando se disponga o interprete que la moción de orden ahí dispuesta debe ser aprobada por votación no menor de las dos terceras partes del total de los miembros de ese órgano, puesto que, establecer o disponer procedimientos especiales para el trámite de la reforma al Reglamento y ciertos proyectos de ley, supone una reforma o modificación del Reglamento, esto es, de los procedimientos ordinariamente dispuestos, de modo que para cumplir con lo estatuido en el numeral 121, inciso 22), de la Constitución Política y, sobre todo, para ser congruentes con los principios democrático y de participación de las minorías en la toma de una decisión fundamental o trascendental, debe requerirse tal mayoría calificada o agravada que supone la obtención de un consenso legislativo en el que concurran, para su respeto, distintas orientaciones político-partidarias o ideológicas. A lo anterior, debe agregarse que la observancia de los recaudos establecidos en el acuerdo interpretativo No. 4084 del 10 de junio de 1999 —por tratarse del ejercicio del poder de reforma- garantiza tales principios, tal y como lo expuso esta Sala en el Voto No. 8408 de las 15:24 horas. del 3 de noviembre de 1999, parcialmente transcrito en el considerando tercero de esta sentencia. B) Observancia del principio de seguridad jurídica: En aras de ajustar el proyecto de adición al principio constitucional de la seguridad jurídica y de evitar cualquier factor sorpresivo, este Tribunal asume que debe disponerse o entenderse que la moción que reforma el reglamento, al establecer un procedimiento especial, debe indicar de forma suficientemente explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial, de modo que como se requiere de las dos terceras partes del total de los miembros de la Asamblea Legislativa en su determinación, también, se respeten los principios democrático y de participación política y libre de las minorías.

VI.- OTROS EXTREMOS CONSULTADOS. Finalmente, en lo relativo a la conveniencia de la norma, así como la compatibilidad con el resto del texto normativo es un asunto que deberá ser analizado por la Asamblea Legislativa, toda vez que /a integración y relación sistemática de las normas de su Reglamento también forma parte de su potestad auto-normativa, en su vertiente interpretativa o hermenéutica. En igual sentido tampoco corresponde a la Sala determinar si el proyecto consultado es complejo o no para ser enmarcado en la excepción del artículo 205, ya que, lo anterior constituye un juicio valorativo que excede la competencia de este Tribunal, y que en todo caso sería revisable ante el Plenario de la Asamblea Legislativa” (4151-2012 de la Sala Constitucional).

Reitera los argumentos dados por la Sala Constitucional en la sentencia antes citada y dado que no existen nuevos argumentos o elementos que no fueran considerados por ese Tribunal en su jurisprudencia, considera que no es necesario ampliar en su análisis, añadiendo que, conforme con el criterio de mayoría, este alegato de inconstitucionalidad debe ser rechazado por el fondo.

• 2)En cuanto a que el cambio en los parámetros para acceder al derecho de jubilación (artículo 224) unido a una contribución especial y porcentajes aplicados en los artículos 236 y 236 bis, configuran una violación a los principios de igualdad, proporcionalidad y razonabilidad; que se somete la pensión a una contribución especial, solidaria y retributiva y que el cambio en las condiciones se hizo de manera abrupta, no progresiva y en perjuicio de los derechos adquiridos y situaciones jurídicas consolidadas; que se lesiona el principio de igualdad, por cuanto se somete a los jubilados y pensionados del Poder Judicial a dicha contribución solidaria, pero no así a los beneficiarios de otros regímenes de pensiones y que existe una doble imposición por parte de los jubilados y pensionados del Poder Judicial, por un lado el porcentaje de aporte al fondo y por otro el porcentaje de la contribución especial: aduce que, en cuanto al tema de la contribución especial, la Sala Constitucional en sentencia N° 3250-96 de las 15 horas 27 minutos del 2 de julio de 1996, indicó:

“... la contribución que se fija a cargo de los pensionados del Régimen de Pensiones del Magisterio Nacional en el artículo 12, y la exclusión que de dicha contribución se hace como derecho adquirido en el transitorio I ambos de la Ley número 7268, no lesionan el artículo 34 de la Constitución Política, por formar parte del elenco de limitaciones que válidamente han formado parte el derecho fundamental a la jubilación que ostenta el accionante desde su ingreso y de las cuales no puede sustraerse porque las adquirió junto con él. (...) La forma en que el artículo 12 de la Ley 7268 regula la contribución a cargo de los pensionados del Régimen del Magisterio Nacional, no contraviene el artículo 45 de la Constitución Política, primero, porque respeta el principio de progresividad (única falta que se hizo notar al evacuar en su oportunidad la Consulta Legislativa y que el Parlamento se encargó de enmendar) con lo que deja prácticamente intacto un monto suficiente a juicio de la Sala para garantizar el efectivo disfrute del derecho a la jubilación, y segundo, porque los montos que se cobran por los distintos excesos que ocurran en casos concretos tienen un claro fin protectivo y uniformador en beneficio del grupo de personas para quienes fue establecido el régimen; es decir, están dirigidas al bienestar social de todos o bien de la gran mayoría de los miembros para los cuales se concibió el régimen. Ello puede conllevar que en algunos sistemas jubilatorios existan normas redistributivas para aquellos casos que pueden llamarse si se quiere, extraños a la razón de ser del régimen y que deben por lo tanto, sufrir un proceso de uniformación para asimilar los beneficios percibidos (en la medida de lo necesario y posible) a los que reciben la mayoría de los beneficiados del régimen, teniendo que hacer, en consecuencia, -si es su deseo seguir disfrutando de los beneficios del sistema- un mayor aporte por recibir una mayor contraprestación en relación con las personas que fueron tomadas en consideración al diseñarse el sistema -en este caso, los maestros-, quienes perciben un salario sustancialmente menor y, en consecuencia, lo es también su jubilación o pensión. Justo es pues -por el carácter solidario del régimen- fijar un monto máximo suficientemente alto que permita incluir los salarios superiores de los beneficiarios propios del fondo y someter a mayor exigencia participativa a los que estén por encima de él, por provenir siempre de obligaciones no contempladas dentro de las tomadas en consideración al fijar las bases del sistema”.

Afirma que, en igual sentido, la Procuraduría General de la República señaló en Opinión Jurídica N° OJ-104-2017, con respecto al numeral 236 bis del proyecto de ley tramitado bajo Expediente N° 20.035, en lo que interesa:

“...que es claro que nada se opone, dentro del marco constitucional, a que el legislador imponga una contribución como la que contempla el proyecto de ley en estudio, siempre que esa contribución sea progresiva y proporcional”.

Argumenta que ya se hizo referencia a la posibilidad jurídica de la existencia de regímenes de pensiones distintos y procedencia de contribuciones especiales.

• 3)Que se infringe el principio de unidad de la seguridad social por cuanto las cargas que soportan los trabajadores del Poder Judicial exceden las que soportan los trabajadores afiliados al régimen de la Caja Costarricense del Seguro Social: indica que, en relación a la existencia de distintos regímenes, la Procuraduría General de la República en Opinión Jurídica número OJ-125-2004 del 07 de octubre del 2004, señaló:

“IV.- Coexistencia de varios y distintos regímenes de jubilaciones y pensiones en Costa Rica.

Pese a que la tendencia que domina actualmente es la "homogeneización" del régimen de previsión social en materia de prestaciones económicas por concepto de jubilaciones y pensiones —muestra de ello es la Ley N° 7302 de 15 de julio de 1992, comúnmente denominada Ley Marco de Pensiones-, lo cierto es que las condiciones o supuestos de jubilación no se regularon razonadamente de la misma manera para todos los servidores públicos; esto debido a que en el empleo público se incorporan personas que integran un conjunto enormemente "heterogéneo". Esa diversidad, siempre que sea razonable, no constituye una discriminación contraria a la Constitución, pues como bien lo ha admitido e/ Tribunal Constitucional Español (SSTC 7/1984 y 68/1989, AATC 734/1988 y 1101/1988), la igualdad o desigualdad establecida por el legislador entre cuerpos de funcionarios, que son estructuras creadas por el derecho, es el resultado de su misma configuración jurídica.

Debe considerarse además que la edad de la jubilación prescrita en cada régimen especial, así como el período de calificación —sea de cotización, empleo o residencia-, no han sido y no tienen por qué ser siempre las mismas para todos los regímenes existentes. Esto es así porque su determinación depende de una pluralidad de factores que, normalmente tienen que ver con la mayor o menor necesidad de efectivos que la Administración y sus distintos componentes tiene y con criterios de política social y económica, tales como combatir el desempleo o, por el contrario, reducir el déficit público retrasando la edad en que empiezan a pagarse las pensiones; razones todas ampliamente discutibles en el plano político, pero que pueden ser perfectamente legítimas en el plano jurídico.

Al evacuar una consulta legislativa sobre el proyecto de la Ley Marco de Pensiones y Jubilaciones, la Sala en su resolución No. 846-92 de las 13:30 horas del 27 de marzo de 1992, expresó lo siguiente respecto a la diversidad de regímenes jubilatorios:

“B).- Consultan en igual sentido la procedencia constitucional de regímenes especiales, entendiendo por tales sistemas jubilatorios distintos al de la Caja Costarricense de Seguro Social, la admisión de normas distintas en todo o algunos de los extremos que se han de tomar en cuenta y, en el supuesto de que se consideraren viables los regímenes, si sería procedente establecer en los extremos jubilatorios reglas distintas, por ejemplo, por edades, tiempo de cotización, etc. Considera la Sala que, si el fin primordial del constituyente fue mantener los seguros sociales para fortalecer la seguridad social, no hay razón para cuestionar la existencia de pluralidad de regímenes. Se parte de que e/ constituyente pretendió un mínimo de protección a los trabajadores, dejando la puerta abierta para que en un futuro se regulara sobre nuevos sistemas de seguridad social, que es el fruto de un proceso histórico en el que la situación actual es consecuencia de acciones o deficiencias dadas en el pasado y, a su vez, es origen de las acciones que se dar n en el futuro. La seguridad social, esto es, el sistema público de cobertura de necesidades sociales, individuales y de naturaleza económica desarrollado a partir de la acción histórica de la previsión social, estructurada en nuestro país sobre la base de las pensiones y jubilaciones, de la mano de la intervención tutelar del Estado en el ámbito de las relaciones de trabajo, ha llegado a convertirse con el tiempo, sin la menor reserva, en una de las señas de identidad principales del Estado social o de bienestar. Por ello, no puede extrañar que en el índice o agenda de las cuestiones esenciales que impregnan la política social del Estado moderno, en lo que se refiera a los seguros, se encuentren diferentes regímenes de jubilaciones y pensiones. Al existir diferentes regímenes, es lógico que cada uno tenga sus propias reglas y criterios legales para el otorgamiento del derecho constitucional a la jubilación y a la pensión; sin que por ello pueda siquiera pensarse que tal coexistencia sea inconstitucional..." Con base en todo ello, la Sala llegó a determinar que no es inconstitucional que existan regímenes jubilatorios diversos, a reserva que se cumplan ciertos requisitos esenciales, como la repartición de las cargas en igualdad de condiciones, aspecto que no se cuestiona en esta acción. Pero como lo ha dicho la Sala en la anterior transcripción resaltada, "es lógico que cada uno (de los regímenes) tenga sus propias reglas y criterios legales para el otorgamiento del derecho constitucional a la jubilación". Esto es, que la especialidad de las normas, que tengan como objeto garantizar la existencia misma del régimen, no tienen que ser necesariamente idénticas en esa variedad de regímenes que pueden existir” (Véase al respecto la sentencia N°4899-97 de las 13:42 horas del 22 de agosto de 1997, y en sentido similar la 5347-97 de las 13:00 horas del 5 de setiembre de 1997, así como la N°2001-10860 de las 08:39 horas del 26 de octubre del 2001).

Manifiesta que es importante aclarar que se está en presencia de regímenes distintos -lo cual es jurídicamente factible-, siendo relevante que, dentro de cada régimen, se atienda a reglas claras y ajustadas a los parámetros constitucionales y legales aceptables y, en ese tanto, no existiría infracción al principio de unidad de la seguridad social, la cual considera que no puede aparejarse a la homogenización de los regímenes.

• 4)Que el numeral 239 viola el principio de reserva de ley en materia de regulación de derechos fundamentales, en el tanto se delegó en la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial la posibilidad de modificar los parámetros iniciales establecidos en la misma ley respecto requisitos de elegibilidad, perfil de beneficios, aportes, cotizaciones, jubilaciones y pensiones: en relación con este punto, señala que la Procuraduría General de la República en Opinión Jurídica N° OJ-104-2017 señaló:

"Consideramos que la norma recién transcrita debe interpretarse en el sentido de que la Junta Administrativa del Fondo está facultada para modificar los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y cotizaciones, pero sólo dentro de los márgenes previstos en la ley. Incluso, estimamos que lo ideal sería que la norma lo indique así expresamente. Lo anterior debido a que -como ya indicamos- las características básicas de un régimen de pensiones sustitutivo del Régimen General deben establecerse mediante normas de rango legal. De llegar a interpretarse que la Junta Administrativa (integrada mayoritariamente por funcionarios judiciales) puede incrementar el aporte del Estado como tal, y del Estado como patrono al Régimen del Poder Judicial, podrían llegar a infringirse los precedentes de la jurisdicción constitucional, según los cuales, los regímenes especiales de pensiones son constitucionalmente válidos siempre que los aportes del Estado sean los mismos con los que se contribuye al Régimen General de Invalidez, Vejez y Muerte”.

Argumenta que, así las cosas, las modificaciones que válidamente puede realizar el Fondo de Jubilaciones y Pensiones del Poder Judicial, deben darse únicamente dentro del marco previsto por la ley bajo análisis y el principio de reserva de ley.

• 5)Que el transitorio VI de la Ley N° 9544 establece que el derecho adquirido solamente se aplicará a las personas con 28 años y 6 meses de servicio al momento de su promulgación, en perjuicio de los trabajadores con 20 años o más de servicio en el Poder Judicial: en relación con el tema de derechos adquiridos, estima conviene señalar que el Tribunal Constitucional señaló en sentencia número 2765-97 de las 15 horas 03 minutos del 20 de mayo de 1997, lo siguiente:

"Los conceptos de 'derechos adquiridos' y 'situaciones jurídicas consolidadas' aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa -material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la 'situación jurídica consolidada' representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que —por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a /a vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica de/tipo 'si..., entonces.. .M, vale decir si se ha dado el hecho condicionante, entonces la 'situación jurídica consolidada' implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege —tornándola intangible — la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

Afirma que, en igual sentido, la Procuraduría General de la República señaló en OJ-104-2017 del 16 de agosto del 2017, lo siguiente:

“El artículo 34 de la Constitución Política establece que a ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas.

En el caso de la pensión o jubilación, el derecho a disfrutarla se adquiere cuando se cumplen todos los requisitos previstos en la normativa que rige la materia, requisitos dentro de los que se encuentran la edad, los años de servicio, etc. Antes de que se cumplan esos requisitos lo que existe es una simple expectativa de derecho, que no es asimilable, siquiera, a una situación jurídica consolidada”.

Manifiesta que, tratándose de expectativa de derechos referente al régimen de pensiones o jubilaciones, deben atenerse a la legislación vigente y precedentes constitucionales, entendiendo que la modificación a un régimen específico es factible y no implica, en sí misma, una vulneración constitucional.

• 6)Que el transitorio VI de la Ley N° 9544 establece un plazo demasiado corto para que la ley despliegue sus efectos, lo que afecta los intereses de los funcionarios judiciales que desean acogerse a la jubilación: indica que la Procuraduría General de la República señaló, con respecto al principio de irretroactividad de la ley y el alcance de la modificación de la norma, que:

"El artículo 34 de la Constitución Política establece que a ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas.

En el caso de la pensión o jubilación, el derecho a disfrutarla se adquiere cuando se cumplen todos los requisitos previstos en la normativa que rige la materia, requisitos dentro de los que se encuentran la edad, los años de servicio, etc. Antes de que se cumplan esos requisitos lo que existe es una simple expectativa de derecho, que no es asimilable, siquiera, a una situación jurídica consolidada.

A pesar de lo anterior, la Sala Constitucional ha validado que para proteger al eventual beneficiario de un determinado régimen especial de jubilación o pensión de cambios repentinos que puedan agravar los requisitos para obtener el reconocimiento de la prestación si el legislador así lo estima conveniente y decide regularlo por derecho transitorio es suficiente el plazo de al menos 18 meses para que la modificación de las condiciones específicas no afecten al administrado que cumpla los requisitos dentro de ese lapso.

Al respecto, la Sala Constitucional, mediante su sentencia n.° 846-92 de las 13:30 horas del 27 de marzo de 1992, refiriéndose al entonces proyecto de ley de creación del Régimen General de Pensiones con Cargo del Presupuesto Nacional, dispuso -entre otras cosas- que: "-en sus artículos transitorios- reconoce la conservación de la situación jubilatoria de los servidores que hubieran cumplido los requisitos para gozar del beneficio, y además lo extiende a los que pertenezcan o hayan pertenecido a los regímenes excluidos para adquirirlo, en un lapso de dieciocho meses, el cual parece razonablemente suficiente para garantizar cualesquiera eventuales derechos de buena fe". Con ello, la Sala consideró que no sólo se garantizaba el derecho de las personas que, al entrar en vigencia la ley, tuvieran cumplidos los requisitos para jubilarse o pensionarse al amparo de la legislación que se pretendía modificar, sino que lo extendió a los que se ubicaran en una edad cercana que les permitiría hacerlo (18 meses posteriores a la reforma), ello siempre y cuando se hubiesen cumplido los supuestos de hecho que dichas normas establecían, a pesar de su derogatoria. (Véase también la sentencia n.° 5476-93 de 18:03 horas del 27 de octubre de 1993 de esa misma Sala).

Lo anterior acredita que en nuestro medio se reconoce a nivel constitucional únicamente el derecho adquirido" a la jubilación cuando se han cumplido todos los requisitos exigidos al efecto, mientras que el mal denominado "derecho de pertenencia" -que no es más que una simple expectativa- queda reducido exclusivamente a quienes a pocos meses posteriores a la reforma instaurada (al menos 18 meses), lleguen a alcanzar aquellos requisitos necesarios para recibir el beneficio concreto según la normativa modificada. Y esto último es así, sólo cuando el propio legislador, por introducción expresa de normas transitorias, lo haya dispuesto de esa manera. Más allá de eso, ese derecho de pertenencia es una simple y llana expectativa que se extingue con la reforma o derogación introducida por la nueva normativa que sea promulgada. Si bien la jurisprudencia constitucional ha reconocido que en el caso de los regímenes contributivos de pensión, la cotización origina un "derecho de pertenencia", ello no hace inmodificable las reglas del sistema.

En este caso, el proyecto de ley en estudio dispone, en su transitorio VI, que tos servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del Título IX de la Ley N°7333 del 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto". Esa disposición -aun cuando es facultativa para el legislador, por lo que podría no existir sin que ello implique infracción constitucional alguna- permite afirmar que los cambios en el régimen no van a ser aplicados de manera intempestiva o repentina” (OJ-104-2017 del 16 de agosto del 2017).

Manifiesta que, por lo anterior, el plazo otorgado en el transitorio bajo análisis, atiende a los parámetros requeridos para garantizar los eventuales derechos de las personas que cumplan con los requisitos dispuestos en la normativa y que con ello no se realice una modificación súbita a la norma, por lo que considera que el reclamo debe ser rechazado.

• 7)Que el numeral 224 de la Ley N° 9544 infringe los principios de proporcionalidad, razonabilidad y justicia por cuanto aumenta la edad de retiro y el número de años que el funcionario debe laborar pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario devengado: manifiesta que en el Voto No. 732-2001, la Sala Constitucional señaló lo siguiente:

“V.- DEL PRINCIPIO DE RAZONABILIDAD COMO PARÁMETRO CONSTITUCIONAL. La jurisprudencia constitucional ha sido clara y conteste en considerar que el principio de razonabilidad constituye un parámetro de constitucionalidad ... Para realizar el juicio de razonabilidad la doctrina estadounidense invita a examinar, en primer término, la llamada "razonabilidad técnica" dentro de la que se examina la norma en concreto (ley, reglamento, etc.). Una vez establecido que la norma elegida es la adecuada para regular determinada materia, habrá que examinar si hay proporcionalidad entre el medio escogido y el fin buscado. Superado el criterio de "razonabilidad técnica" hay que analizar la "razonabilidad jurídica". Para lo cual esta doctrina propone examinar a) razonabilidad ponderativa, que es un tipo de valoración jurídica a la que se concurre cuando ante la existencia de un determinado antecedente (ej. ingreso) se exige una determinada prestación (ej tributo), debiendo en este supuesto establecerse si la misma es equivalente o proporcionada; b) la razonabilidad de igualdad, es el tipo de valoración jurídica que parte de que ante iguales antecedentes deben haber iguales consecuencias, sin excepciones arbitrarias; c) razonabilidad en el fin, en este punto se valora si el objetivo a alcanzar, no ofende los fines previstos por el legislador con su aprobación. Dentro de este mismo análisis, no basta con afirmar que un medio sea razonablemente adecuado a un fin; es necesario, además, verificar la índole y el tamaño de la limitación que por ese medio debe soportar un derecho personal. De esta manera, si al mismo fin se puede llegar buscando otro medio que produzca una limitación menos gravosa a los derechos personales, el medio escogido no es razonable...”.

Añade que, en este sentido, el Tribunal Constitucional en la sentencia que analizó la consulta facultativa de constitucionalidad sobre el expediente legislativo 19.922, señaló:

"Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Ante dicho panorama, la Sala considera que las normas cuestionadas no resulta inconstitucionales, en el tanto su fin es, precisamente, garantizar la permanencia del Régimen de Pensiones y Jubilaciones del Poder Judicial, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19.922, así como de estudios de naturaleza técnica que constataron la existencia de una problemática que puede llegar a afectar la sostenibilidad del Régimen mencionado, y para lo cual emitieron una serie de recomendaciones. En ese sentido, al comprobar que la variación de requisitos dispuesta por el numeral 224 y el plazo fijado por el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado” (sentencia 2018-005758).

Amén de lo anterior, argumenta que lo alegado por los recurrentes, ya fue objeto de análisis por la Sala Constitucional en torno a la existencia de parámetros técnicos (razonabilidad) para dar fundamento a la reforma analizada.

• 8)Ausencia de estudios técnicos científico y económico que justifiquen las modificaciones: señala que la Sala Constitucional en la sentencia dictada al conocer la consulta facultativa de constitucionalidad sobre el expediente legislativo 19.922, señaló con respecto al tema, lo siguiente:

"En ese sentido, al constatar que, contrario a lo que se afirma en el escrito inicial, si existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.

Por otra parte, en lo que respecta al segundo de los alegatos de los(as) consultantes, la Sala considera que, en el fondo, lo que se cuestiona es si los parámetros que sirvieron de base para fijar los requisitos para obtener el derecho de pensión eran los idóneos o no, extremo que no implica que la norma sea inconstitucional, tal y como estiman los(as) consultantes, de ahí que se considere que el vicio es inexistente” (sentencia 2018-005758).

Señala que en las actas de discusión en comisión del expediente legislativo número 19.922, se indica que el estudio técnico del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, contó con participación del Comité Técnico que creó el Poder Judicial, debiendo entenderse entonces que la ley bajo análisis no responde a criterios arbitrarios o antojadizos —situación ya analizada por la Sala Constitucional-, por lo que no supone vulneración alguna a los principios constitucionales de razonabilidad y proporcionalidad.

• 9)Que el numeral 224 la Ley N° 9544 no responde a criterios obligatorios de : indica que con respecto a este tema la Sala Constitucional en la sentencia N° 05758-2018 del 12 de abril del 2018, señaló:

"De la lectura de las normas antes citadas, se desprende que en éstas se establecen los requerimientos que todo servidor debe cumplir para poder obtener una pensión a cargo del Régimen de Pensiones y Jubilaciones del Poder Judicial. Ahora bien, a criterio de esta Sala el hecho de que no se haga una diferenciación por razón de género en los términos que mencionan los(as) consultantes, no conlleva un vicio de inconstitucionalidad, pues debe tomarse en cuenta que los requisitos para obtener un beneficio jubilatorio obedecen a criterios objetivos que se fijan a partir de estudios técnicos, que establecen requisitos como la edad y el número de cuotas que una persona debe cumplir para garantizar la sostenibilidad de un régimen de pensiones, con independencia del género del cotizante. Hay que tener presente que los(as) consultantes no aportan estudios técnicos para sostener la inconstitucionalidad alegada, de forma tal que se justifique de forma objetiva hacer la diferenciación que se echa de menos, lo cual no significa que, en un futuro, este Tribunal, por medio del control a posteriori de constitucionalidad, no analice el agravio planteado con base en estudios técnicos pertinentes que se lleguen a aportar. Por otra parte, los estudios que se mencionan en la consulta hacen referencia a otros supuestos que no resultan de recibo, pues tienen que ver, entre otras cosas, con jomadas, ingresos, etc. Finalmente, no se puede dejar de lado que, contrario a lo que se alega en la consulta, el IICE, en el oficio n.° 186-2017 del 18 de agosto de 2017, establece de forma clara y precisa lo siguiente:

"c. Edad requerida para la jubilación y diferencias por género Los lineamientos establecidos para edad de jubilación en el Dictamen de Mayoría son los mismos que se utilizaron en los marcos IICE _3 e IICE 4: 65 años para la jubilación ordinaria. Para la jubilación por servicio se establece una diferencia de género análoga a la establecida en el régimen IVM de la CCSS: 62 años para los hombres, y 60 años para mujeres. El equipo del IICE no considera necesario establecer distinciones adicionales por concepto de género".

En virtud de lo anterior, el Tribunal considera que no se presenta el vicio alegado”.

Manifiesta que el alegato planteado -según el cual el artículo 224 de la ley impugnada no atiende a criterios de género-, se refiere a un tema que ya fue analizado por la Sala Constitucional, sin conllevar vicio de constitucionalidad alguno y por ende estima que debe rechazarse. Finaliza manifestando que, de acuerdo con lo informado, la acción de inconstitucionalidad debe ser declarada sin lugar por no existir violación a principios constitucionales, ni haberse vulnerado los artículos 9, 11, 28, 33, 34, 40, 50, 51, 65, 73, 74, 121 incisos 13) y 22), 152, 154, 167, 177, 188, 189 y 190 de la Constitución Política.

159.- El 1 de abril de 2019 se apersona Luis Roberto Madrigal Zamora en su condición de Secretario General del Sindicato de la Defensa Pública (SINDEPU) y manifiesta que mediante resolucio´n de las 13 horas 05 minutos del 22 de febrero de 2019, publicada en el Boleti´n Judicial No. 57 del 21 de marzo de 2019, se puso en conocimiento de las partes interesadas y de todas aquellas personas que figuran como partes en asuntos pendientes en los que se discuta la aplicacio´n de las normas impugnadas o aquellos con intere´s legi´timo, sobre las acciones de inconstitucionalidad que se tramitan bajo el expediente número 18-007819-0007-CO interpuestas por Mario Mena Ayales y otros, para que se declare la inconstitucionalidad de la Ley 9544; aviso que se realiza a efecto de que los interesados, pudieran coadyuvar en cuanto a la procedencia de dichas acciones. Indica que, de conformidad con lo establecido en el arti´culo 75 de la Ley de la Jurisdiccio´n Constitucional, por actuar como Secretario General del Sindicato de la Defensa Pu´blica, se encuentra legitimado para representar los derechos e intereses colectivos de todos los miembros de esa agrupación. Manifiesta que las acciones de inconstitucionalidad interpuestas cuestionan la Ley 9544 que reformó el re´gimen de jubilaciones y pensiones de los empleados judiciales. Señala que, revisando la documentacio´n existente, se observa que efectivamente se ha violado el procedimiento para la aprobacio´n de leyes y de consulta correspondiente, por lo cual considera que es procedente decretar su inconstitucionalidad. Añade que el Sindicato de la Defensa Pu´blica esta´ conformado por personas trabajadoras de la Defensa Pu´blica que es una dependencia del Poder Judicial -de conformidad con los arti´culos 150 al 159 de la Ley Orga´nica del Poder Judicial-, por lo que existe un intere´s legi´timo en que se les tome como parte del proceso debido a que lo que eventualmente se resuelva, tendri´a efectos juri´dicos sobre ese colectivo. Manifiesta que, por ese motivo, en su condicio´n de Secretario General del Sindicato de la Defensa Pública (SINDEPU), se adhiere en todos sus extremos y pretensiones a las acciones de inconstitucionalidad interpuestas y solicita que se les tenga como parte interesada, en coadyuvancia, por representar intereses colectivos. Igualmente pide que se declaren con lugar las acciones de interpuestas y se decrete la inconstitucionalidad de las normas impugnadas.

160.- En documento presentado en la Secretaría de la Sala el 12 de abril de 2019, se apersonan Enriqueta Rojas Aguilar, ce´dula 5-223-794, Crissiam Wong Vega, ce´dula de identidad 01-0742-019, Ligia Vanesa Víquez Go´mez, con ce´dula 01-0824-0057 y Zulay Campos Herna´ndez, portadora de la ce´dula 1-836-391 y solicitan que, en su condicio´n de afectadas directas con la promulgacio´n de la Ley nu´mero 9544 que reforma la Ley Orga´nica del Poder Judicial, se les tenga adheridas a las acciones de inconstitucionalidad que se tramitan en este expediente y que puedan coadyuvar en sus argumentaciones. Señalan que el interés legítimo que tienen en esta acción proviene de su condición de funcionarias judiciales desde hace más de 20 años de manera ininterrumpida. Consideran que la modificacio´n legal que se realiza en detrimento de las condiciones para optar por una jubilacio´n o pensio´n en el Poder Judicial, les afecta directamente y, en tal virtud, estiman que les cobija el derecho de apersonarse a este proceso y acusar la inconstitucionalidad de la Ley 9544. Añaden que, con la promulgacio´n y entrada en vigencia de la Ley 9544 que reformó la Ley Orga´nica del Poder Judicial, consideran que se han transgredido varias normas establecidas en la Constitucio´n Política en sus numerales 9, 28, 33, 34, 39, 40, 41, 45, 50, 51, 53, 73, 74, 167 y 173, así como los Convenios Internacionales ratificados por el país como la Convencio´n Americana de Derechos Humanos en su numeral 8, inciso a); Convencio´n Interamericana Para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "CONVENCION DE BELEM DO PARA, en sus numerales 7, 8 y siguientes; así como la Convencio´n sobre la Eliminacio´n de Todas las Formas de Discriminacio´n contra la Mujer en sus artículos 11 y siguientes. Argumentan que se adhieren a esta acción de inconstitucionalidad pero además, consideran necesario ampliar los argumentos por los cuales también se puede cuestionar la constitucionalidad de los artículos 224, 224 bis. Señalan que la Constitución Política reconoce el derecho a la jubilacio´n como un derecho humano, considerando que tales artículos establecen una carga impositiva que hace nugatorio ese derecho consagrado en la Constitucio´n Política y, por ende, se lesiona groseramente sus derechos fundamentales. Indican que esos numerales modifican la fórmula, condiciones y requerimientos para optar por el derecho a la jubilacio´n; nuevos para´metros que incluyen una forma de realizar el cálculo de la pensio´n que corresponde a la suma de los últimos 240 salarios, lo que estiman que incide -de manera perniciosa- en el resultado del monto de la jubilacio´n, al cual, además, se le debe restar un porcentaje adicional que termina reduciendo el monto de la jubilacio´n al extremo de que el funcionario terminará obteniendo un monto mensual inferior al 55% de su salario. Recuerdan que el derecho a la jubilacio´n es un derecho fundamental y, por ende, el deterioro de la jubilacio´n, constituye un detrimento de ese derecho humano en contraposicio´n de lo establecido en la Constitucio´n Poli´tica en los artículos 33 y 71, así como en convenios internacionales pudiéndose citar el artículo 18 apartado 102 de la OIT. Estiman que esta reforma impone una carga impositiva excesiva, desproporcional y que desmejora el porcentaje del monto final de la jubilacio´n, lo que consideran que definitivamente se convierte en una reforma con resultados confiscatorios desde la perspectiva del monto final por concepto de jubilacio´n versus el u´ltimo salario del trabajador en su condicio´n activa. Manifiestan que conocen la existencia y vigencia del principio de no inmutabilidad legal; sin embargo, consideran que este principio no puede aplicarse de forma irrestricta, debie´ndose respetar el principio de proporcionalidad consagrado en la Constitucion Politica, pues, en la pra´ctica con la reforma se logra la reduccio´n de hasta en un 50% del monto que recibirá el jubilado en relación con el salario que tenía antes de declararse aquel derecho. Estiman que la reforma también es abusiva, pues a los funcionarios que habían laborado ma´s de 20 an~os en el Poder Judicial, y que habían cotizado durante todo ese tiempo, se les ofreci´an condiciones de una jubilación completamente distintas a las actuales, aunado a que, con la reforma, no solamente se aumenta la edad de retiro sino que aumentan las cargas econo´micas referidas a la cotizacion, pero se les ofrece beneficios que son desventajosos y que quedan más reducidos que los otorgados por otros regi´menes de pensiones en los cuales, se cotiza porcentajes significativamente ma´s bajos que los del Poder Judicial. y al final obtienen un monto de jubilación similar al que se obtiene en el Poder Judicial con esa reforma, todo lo cual estiman que se ha aprobado en detrimento de los derechos que tienen de optar por una jubilación digna, decorosa y acorde a las cuotas que durante tantos años se han cotizado para acceder a tal derecho humano, constitucionalmente reconocido. Consideran que estas modificaciones que establece la nueva legislación, no solo resultan desmedidas, sino que varían aspectos de carácter esencial sobre un derecho que, constitucionalmente, se encuentra reconocido como un derecho humano, y que el Estado solamente podría cambiar respetando los límites del principio de proporcionalidad en su ma´s estricta concepción; situación que no se da en la especie pues la reforma incorpora tantas cargas impositivas a la jubilación que ésta se ve muy desmejorada y empobrecida. Manifiestan que además, el artículo 224 de la reforma que establece los requisitos legales para optar por la jubilación, omite toda distinción entre la edad de un hombre y una mujer para optar por ese derecho, haciendo referencia únicamente al rango de edad y al tiempo laborado para alcanzar la jubilación, equiparando la edad entre hombres y mujeres, sin ninguna distinción de género. Recuerdan que, históricamente, a la mujer se le ha recargado con las labores dome´sticas, la crianza y educacio´n de los hijos así como todo tipo de labores propias del hogar que, aunadas a las labores a realizar durante la jomada de trabajo, constituyen una carga "extra" por la cual no obtiene remuneracio´n ni reconocimiento alguno, siendo que esas labores y cargas, no las soportan los hombres. Señalan que, sin duda alguna, todas estas labores más pesadas del hogar, la familia y dema´s trabajos dome´sticos, que constituyen una jornada extra con la que se ha recargado a la mujer, también es una forma de violencia, sufrida durante siglos, y que obedece a las relaciones de poder histo´ricamente desiguales entre hombres y mujeres. Señalan que no puede perderse de vista que las mujeres, adema´s de contar con ese plus del trabajo dome´stico impuesto por una tradicio´n patriarcal, es a quienes les corresponde la maternidad, sin que sea un secreto que muchas de ellas deben asumir solas ese rol como madres solteras y jefas de hogar, con el consiguiente desgaste fisico, emocional e integral que estas labores generan junto a la labor de la jornada ordinaria en el trabajo; aspectos que, al momento de dictarse una ley en la que se involucra mujeres, no pueden ser ajenos ni extran~os, de ahí que muchas legislaciones a nivel mundial, conscientes de estas cargas dome´sticas que durante an~os y siglos ha arrastrado la mujer por su sola condicio´n, han optado por reconocer una disminucio´n en la edad de las mujeres para optar por el derecho a la jubilacio´n. Manifiestan que esas legislaciones modernas, democra´ticas y comprometidas con una equiparacio´n de las relaciones entre hombres y mujeres, son las que realizan una distincio´n entre la edad de la jubilacio´n por razones de género, lo que se echa de menos en Costa Rica a pesar de que el país ha firmado y ratificado Convenios Internacionales. mostrando preocupación y reconocimiento de las diferentes formas de violencia contra la mujer, y ha asumido el compromiso de implementar mecanismos efectivos para evitar toda forma de violencia contra la mujer, incluso mecanismos a nivel legal. Estiman que negar la posibilidad de que la mujer alcance el derecho a la jubilacio´n a una edad ma´s temprana, sin duda constituye una forma de invisibilizar y desconocer en la mujer, aquél recargo de labores domésticas que durante siglos ha arrastrado, pero igualmente constituye una forma de discriminacio´n contra la mujer y en este caso, contra la funcionaria judicial de manera concreta, ya que en el país existen otros regi´menes de pensión que sí hacen la distincio´n a favor de las mujeres respecto de la edad, pero que esta reciente reforma legal que cuestionan, niega tal posibilidad, al equiparar los requisitos para hombres y mujeres. Argumentan que ello constituye una transgresio´n a Convenios Internacionales como la Convencio´n Belem do Para´ (artículos 7 y 8), así como la Convencio´n sobre todas las formas de discriminacio´n contra la mujer (artículos 11 y siguientes), las cuales han sido ratificadas por Costa Rica. Añaden que la diferencia visible en el artículo 224 bis que regula la posibilidad de una jubilacio´n anticipada, en cuanto reza que las mujeres deben haber cumplido al menos 60 an~os y los hombres al menos 62 an~os, no se considera suficiente para cumplir con los para´metros exigidos por el control de convencionalidad dado que se encuentra referida a una forma de jubilacio´n distinta a la ordinaria, aunado al hecho de que ese numeral establece otros lineamientos al momento de tasar el monto correspondiente a la suma que se obtendra´ por concepto de salario correspondiente a la jubilacio´n, y estos lineamientos, en su criterio, son ma´s groseros que los utilizados en el caso del retiro ordinario, con lo cual ello también implica una sancio´n de cara´cter pecuniario al imponer otros para´metros de ca´lculo de la pensio´n. Finalizan solicitando a la Sala Constitucional que se admita esta gestio´n y que se les tenga como partes interesadas directas en este proceso. Igualmente piden que se declare con lugar esta acción y que se disponga la inconstitucionalidad de la Ley 9544.

161.- En escrito presentado el 22 de abril de 2019 se apersona Karol Monge Molina en su condición de apoderada especial judicial de ADALGISA GUILLEN FLORES, mayor, soltera, Secretaría, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0210-0201, ADOLFO SOTO MUÑOZ, mayor, casado, Empleado Judicial, vecino de Cartago, central, portador de la cédula de identidad número 3-0300-0050, ADRIAN ARROYO ACOSTA, mayor, casado, Abogado, vecino de San José Hatillo, portador de la cédula de identidad, 1- 0903-0887, ADRIAN COTO PEREIRA, mayor, divorciado, Abogado, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0307-0851, ADRIAN RODOLFO BARQUERO MONGE, mayor, casado, Contador, vecino de Cartago, Central, portador de la cédula de identidad 3-0339-0441, ADRIANA ALVAREZ BRICEÑO, mayor, divorciada, Técnica Judicial, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad, 1-0639- 0343, ADRIANA SOTO GONZÁLEZ, mayor, divorciada, Abogada, vecina de Heredia, Santa Barbara, portadora de la cédula de identidad 1-O844- 0124, ADRIANA STELLER HERNÁNDEZ, mayor, casada, Administradora, vecina de Heredia. San Rafael, portadora de la cédula de identidad 1- 0803-0253, ALBA BARRIOS SALDAÑA, mayor, casada, Técnica Judicial 1, vecina de Limón, Talamanca, portadora de la cédula de identidad 7-0103- 0498, ALBERTH SOLANO ABARCA, mayor, soltero, Criminólogo, vecino de San José, Aserrí, portador de la cédula de identidad 1-0762-0577, ALBERTO MORA MORA, mayor, casado, Perito Judicial, vecino de Cartago, La Unión, portador de la cédula de identidad 1-1023-0353, ALCIONI VASQUEZ RETANA, mayor, casado, Administrador, vecino de San José, Hatillo, portador de la cédula de identidadl-0643-0891, ALEJANDRA PEREZ CORDERO, mayor, soltera, Abogada, vecina de , Guanacaste Liberia, portadora de la cédula de identidad l-l 030-0994, ALEJANDRO ALCIONE CASTRO LAO, mayor, casado, Administrador, vecino de San José, San Francisco, portador de la cédula de identidad 1-0836 0068, ALEJANDRO FONSECA ARGUEDAS, mayor, casado, Administrador de Negocios, San José, Calle Blancos, portador de la cédula de identidad l 0771-0399, ALEJANDRO SOLANO ROJAS, mayor, casado, Técnico Judicial vecino de Limón, Centro, portador de la cédula de identidad 1-0519-0729. ALEXANDER MIGUEL FONSECA PRADO, mayor, casado, Informático vecino de Alajuela, Cantón Central, cédula de identidad 1-0779-0738, ALEXANDER PICADO GAMBOA, mayor, soltero, Abogado, vecino de San José, Aserrí, portador de la cédula de identidad 1-0935-0908, ALEXANDER TENORIO CAMPOS, mayor, soltero, Administrador Público, vecino de San José, Desamparados, portador de la cédula de identidad 5-0202-0075 ALEXANDER VIACHICA ESPINOZA, mayor, soltero, Investigador, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0777-O115 ALEXANDRA MADRÍZ SEQUEIRA, mayor, divorciada, Administradora vecina de San José, Desamparados, portadora de la cédula de identidad 1-0870-0450, ALEXANDRA MORA STELLER mayor, casada, Administradora, vecino de Alajuela, Central, portadora de la cédula de identidad 2-0485-0404, ALEXANDRA VILLEGAS VELAZQUEZ, mayor, casada, Coordinadora Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, mayor, divorciado, Conductor de Reos, vecino de Limón, Central, portador de la cédula de identidad 7-0103-0253, ALEYDA MOJICA MARIN, mayor, casada, Trabajadora Social, vecina de Puntarenas, Central, portadora de la cédula de identidad 6-0229-0409, ALFREDO SALAZAR VENEGAS, mayor, casado, Coordinador, vecino de San José, Central, portador de la cédula de identidad 1-0867-0065, ALICIA MELENDEZ LEIVA, mayor, unión libre, Técnico Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0238-0070, ALLAN CRUZ VILLALOBOS, mayor, casado, Criminólogo, vecino de Cartago, Oreamuno, portador de la cédula de identidad 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, mayor, casado, Empleado Judicial, vecino de Alajuela, Central, portador de la cédula de identidad 2-0443-0555, ALLEN CORDOBA CHAVES, mayor, casado, Jefe de Investigación, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0271-0887, ALMA CUNNINGHAM ARANA, mayor, divorciada, Técnica Administrativa, vecina de San José, San Cayetano, portadora de la cédula de identidad 7-0066-0882, ALONSO ROMERO FALLAS, mayor, soltero, Investigador Judicial, vecino de San José, Curridabat, portador de la cédula de identidad 1-0860-0327, ALVARO ÁLVAREZ GUTIÉRREZ, mayor, casado, Oficial de Seguridad, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0234-0995, ALVARO ENRIQUE GONZALEZ QUIROS, mayor, divorciado, Abogado, vecino de Cartago, Central, portador de la cédula de identidad 3-0334-0081, ALVARO JUSTO QUIROS SÁNCHEZ, mayor, divorciado, Abogado, vecino de Heredia, Mercedes Norte, portador de la cédula de identidad 1-0669-0209, ALVARO ORTUÑO MÉNDEZ, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, mayor, casada, Administradora, vecina de San José, Alajuelita, portadora de la cédula de identidad 1-0828~0553, ANA CRISTINA LIZANO RODRÍGUEZ, mayor, casada, Trabajadora Social, vecina de San José, Guadalupe, portadora de la cédula de identidad 1-0693- 0522, ANA ISABEL MOYA CHACON, mayor, casada, Abogada, vecina de Cartago, Oreamuno, portadora de la cédula de identidad 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, mayor, casada, Psicóloga, vecina de Heredia, Central, portadora de la cédula de identidad 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, mayor, divorciada, Coordinadora Judicial, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 5-0248- 0978, ANA PATRICIA ROBLES MARTÍNEZ, mayor, casada, Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7- 0102-0421, ANA RUTH ORTEGA CHAVARRIA, mayor, soltera, Empleada Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, mayor, viuda, Trabajadora Social, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0745-0116, ANA SONIA FUENTES GÓMEZ, mayor, divorciada, Empleada Judicial, vecina de Cartago, Central, portadora de la cédula de identidad 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, mayor, casada, Técnico Judicial, vecina de Alajuela, Tambor, portadora de la cédula de identidad 2-0496-0746, ANA YANCY ZUÑIGA FERNÁNDEZ, mayor, casada, Asistente Administrativa, vecino de Guanacaste, Santa Cruz, portador de la cédula de identidad 1-0855-091 19, ANAIS CAROLINA BOLAÑOS ZELEDÓN, mayor, unión libre, Psicóloga, vecina de Heredia, San Isidro, portadora de la cédula de identidad 1-0902- 0620, ANAYANCI RODRÍGUEZ QUESADA, mayor, casada, Microbióloga, vecina de Heredia, Barva, portadora de la cédula de identidad 1-0734-0966. ANDREA SOTO DÍAZ, mayor, casada, Técnica Judicial, vecina de Heredia Central, portadora de la cédula de identidad 4-0161-0797, ANDRES MÉNDEZ BONILLA, mayor, divorciado, Administrador, vecino de San José, Desamparados, portador de la cédula de identidad 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, mayor, divorciado, Abogado, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0779-0938, ANGELA ROBLES SIBAJA, mayor, casada, Empleada Judicial, vecina de Heredia. San Francisco, portadora de la cédula de identidad 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNANDEZ, mayor, casado, Administrador, vecino de San José, Desamparados, portador de la cédula de identidad, 7-0107-0369, ARMANDO AGÚERO ARAYA, mayor, casado, Empleado Judicial, vecino de Alajuela, Central, portador de la cédula de identidad 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, mayor, casado, Investigador Judicial, vecino de Cartago, Corralillo, portador de la cédula de identidad 3-0325-0085, ARMANDO EMILIO JIMENEZ VARGAS, mayor, casado, Auditor Supervisor, vecino de Alajuela, San Ramón, portador de la cédula de identidad 6-0233-0378, ARSENIO MORA BARBOZA, mayor, casado, Perito Judicial, vecino de San José, Puriscal, portador de la cédula de identidad 1-0850-0664, ARTURO FAERRON MONTOYA, mayor, soltero, Perito Judicial, vecino de San José, Desamparados, portador de la cédula de identidad 5-0247-0765, AURA YANES QUINTANA, mayor, soltera, Administradora, vecina de Cartago, Central, portadora de la cédula de identidad 6-0209-0198, AUREA BARBOZA CASTILLO, mayor, casada, Técnica Administrativa, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0233-0938, BERNY VALVERDE JIMENEZ, mayor, casado, Perito Judicial, vecino de San José, Puriscal, portador de la cédula de identidad 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, mayor, divorciada, Abogada, vecina de Guanacaste, Nicoya, portadora de la cédula de identidad 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, mayor, casada, Trabajadora Social, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0747- 0521, BONNIE PATRICIA TORRES ROSALES, mayor, soltera, Coordinadora Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 1-0750-0985, BRENDA ALPÍZAR JARA, mayor, divorciada, Administradora, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-0752- 0082, CARLOS ABRAHAM CAMPBELL, mayor, soltero, Custodio de Detenidos, vecino de Limón, Central, portador de la cédula de identidad 7-0098-0511, CARLOS AGUILAR ORTIZ, mayor, soltero, Asistente Administrativo, vecino de San José, Curridabat, portador de la cédula de identidad 1-0706-0717, CARLOS ALBERTO CHACON CHINCHILLA, mayor, casado, Informático, vecino de Alajuela, Central, portador de la cédula de identidad 1-0865-0136, CARLOS ALBERTO QUESADA HERNANDEZ, mayor, soltero, Técnico Administrativo 2, vecino de Limón, Central, portador de la cédula de identidad 7-0077-0276, CARLOS ALBERTO SOLANO PEREZ, mayor, casado, Comunicador Judicial, vecino de Puntarenas, Golfito, portador de la cédula de identidad 6-0211-0367, CARLOS ARNOLDO BERMUDEZ AGUILAR, mayor, divorciado, Informático, vecino de San José. Coronado, portador de la cédula de identidad 1-0915-0817, CARLOS BERMUDEZ CHAVES, mayor, casado, Abogado, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 1-0880-0378, CARLOS CALDERÓN BARRIOS, mayor, casado, Abogado, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0335- 0644, CARLOS DARIO ÁLVAREZ ARRIETA, mayor, divorciado, Abogado, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0463- 0645, CARLOS ENRIQUE TORRES ACUÑA, mayor, soltero, Oficial de Seguridad, vecino de San José, Desamparados, portador de la cédula de identidad 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, mayor, casado, vecino de Cartago, San Nicolás, portador de la cédula de identidad 1-0748-0121, CARLOS FALLAS SOLIS, mayor, casado, Licenciado en Informática, vecino de San José, Desamparados, portador de la cédula de identidad 1-0851-0582, CARLOS GONZALEZ MARTÍNEZ, mayor. casado, Custodio de Detenidos, vecino de Cartago, Central, portador de la cédula de identidad 3-0279-0596, CARLOS HUMBERTO HERRERA SOLIS, mayor, casado, Abogado, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0837-0484, CARLOS LUIS CORRALES JIMENEZ, mayor, casado, Administrador, vecino de Alajuela, Naranjo, portador de la cédula de identidad 2-0428-0157, CARLOS LUIS FRUTOS VASQUEZ, mayor, casado, Empleado Judicial, vecino de San José, Puriscal, portador de la cédula de identidad 6-01 57-0030, CARLOS LUIS GARCIA APARICIO, mayor, casado, Auditor, vecino de San José, Central, portador de la cédula de identidad 1-0860-0752, CARLOS LUIS GUTIERREZ BARQUERO, mayor, casado, Empleado Judicial, vecino de San José, Coronado, portador de la cédula de identidad 6-0164-0434, CARLOS LUIS VASQUEZ MEDINA, mayor, casado, Empleado Judicial, vecino de Limón, Guácimo, portador de la cédula de identidad 7_0086-0146, CARLOS MONGE NAVARRO, mayor, unión libre, Empleado Judicial, vecino de San José, Peréz Zeledón, portador de la cédula de identidad 6-0251-0I66,CARLOS PORRAS MORERA, mayor, casado, Oficial de Investigación, vecino de San José, Tibás, portador de la cédula de identidad 5-0247-0389, CARLOS QUIRÓS TENORIO, mayor, casado, Técnico, vecino de Alajuela, San Ramón, portador de la cédula de identidad 1-0895-0474, CARLOS VENEGAS AVILES, mayor, casado, Abogado, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-0899-0725, CARLOS ALBERTO PAEZ RODRÍGUEZ, mayor, casado, Técnico Administrativo, vecino de San José, Hatillo 4, portador de la cédula de identidad 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, mayor, vecino de San José, Coronado, portador de la cédula de identidad 1-0903- 0553, CARMELINA TAYLOR TAYLOR, mayor, casada, Técnica Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0068-0562, CAROLINA CHACON MEJIA, mayor, soltera, Secretaria, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0741-0425, CATALINA ESPINOZA SAENZ, mayor, divorciada, Evaluadora, vecina de Alajuela, Central, portadora de la cédula de identidad 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, mayor, divorciado, Técnico en Comunicaciones, vecino de Puntarenas, Corredores, portador de la cédula de identidad 6-0198-0289, CESAR AUGUSTO BARRANTES ARRIETA, mayor, casado, Fiscal Auxiliar, vecino de Alajuela, Central, portador de la cédula de identidad 1-0934-0951, CINTHIA MAGALY VEGA CÉSPEDES, mayor, soltera, Técnica Coordinadora, vecina de Heredia, Santa Bárbara, portadora de la cédula de identidad 4-0161-0385, CHIREY TAPIA MARTINEZ, mayor, casada, Técnico Administrativo, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-0912-0363, CRISTIAN CORRALES RODRIGUEZ, mayor, divorciado, Guía Canino, vecino de Alajuela, Naranjo, portador de la cédula de identidad 2-0473-0323, CRISTIAN GÓMEZ SOLIS, mayor, casado, Contador Público, vecino de San José, Desamparados, portador de la cédula de identidad 3-0333-0388, CRUZ PORRAS BOLAÑOS, mayor, divorciada, Trabajadora Social, vecina de Cartago, La Unión, portadora de la cédula de identidad 5-02 13-0606, DANIA ARIAS SANDOVAL, mayor, casada, Licenciada en Contaduría, vecina de San José, Zapote, portadora de la cédula de identidad 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, mayor, casado, Químico, vecino de Heredia, San Rafael, portador de la cédula de identidad 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, mayor, casado, Técnico Especializado, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0820-0013, DEBORA RIVERA ROMERO, mayor, casada, Trabajadora Social, vecina de San José, Coronado, portadora de la cédula de identidad. 1-0702-0210, DELIA BAYLEY BLAKE, mayor, casada. Técnica Administrativa, vecina de San José, Goicoechea, portadora de la cédula de identidad 7-0106-0462, DENIA ZUÑIGA ROSALES, mayor, casada, Empleada Judicial, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 5-0255-0075, DENNIS MADRIGAL QUESADA, mayor, soltero, Administrador, vecino de San José, Central, portador de la cédula de identidad, 1-0772-0406, DERRIL VILLEGAS SALAZAR, mayor, casado, Técnico Especializado, vecino de San José, Coronado, portador de la cédula de identidad 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, mayor, casada, Criminóloga, vecina de San José, Tibás, portadora de la cédula de identidad 1-0844-0663, DIDIER JOSE MONTEALEGRE BEJARANO, mayor, casado, Ingeniero Industrial, vecino de Alajuela, Central, portador de la cédula de identidad 1- 0998-0884, DIEGO RODRÍGUEZ ZUMBADO, mayor, casado, Estadístico, vecino de Heredia, Barva, portador de la cédula de identidad 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, mayor, casada, Administradora, vecina de Alajuela, San Mateo, portadora de la cédula de identidad 2~0403-0367, DINORAH FLORES VILLALOBOS, mayor, viuda, Empleada Judicial, vecina de San José, Curridabat, portadora de la cédula de identidad 1-0762-0614, DIXON LI MORALES, mayor, soltero, Ingeniero Industrial, vecino de Heredia, San Francisco, portador de la cédula de identidad 1-0839-0369, DONALDO BERMUDEZ RODRÍGUEZ, mayor, casado, Investigador Judicial, vecino de Puntarenas, El Roble, portador de la cédula de identidad 6-0260- 0554, DONY DANIEL SOLANO ARAYA, mayor, casado, Criminalista, vecino de San José, Pérez Zeledón, portador de la cédula de identidad, 6-0270- 0431, DORIS ROJAS GUZMÁN, mayor, casada, Coordinadora Judicial 1, vecina de San José, Goicoechea, portadora de la cédula de identidad, 1- 0760-0176, DYALA LINKIMER VALVERDE, mayor, soltera, Auditora, vecina de San José, Moravia, portadora de la cédula de identidad 2-0394-0312, EDDIE JOSE DIAZ SOIORZANO, mayor, casado, Abogado, vecino de Guanacaste, Tilarán, portador de la cédula de identidad 5-0202-0075, EDDY JAVIER RODA ABARCA, mayor, casado, Abogado, vecino de San Josè, Moravia, portador de la cédula de identidad 1-0607-0953, EDGAR GERARDO MORA ROMERO, mayor, casado, Coordinador Judicial, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0294-0965, EDUARDO BRICEÑO CABALCETA, mayor, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-738-0392, EDUARDO FALLAS BRENES, mayor, unión libre, Jefe de Investigación 3, vecino de Alajuela, Central, portador de la cédula de identidad 1-0588- 0355, EDUARDO GÓMEZ VARGAS, mayor, casado, Empleado Judicial, vecino de Heredia, portador de la cédula de identidad 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, mayor, divorciado, Físico, vecino de Heredia, Barva, portador de la cédula de identidad 8-0066-0926, EDUARDO MOYA ROJAS, mayor, soltero, Ingeniero en Computación, vecino de San José, Central, portador de la cédula de identidad 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, mayor, casado, Abogado, vecino de Cartago, Central, portador de la cédula de identidad 3-033 1 -03 13, EDWARD RODRÍGUEZ GONZÁLEZ, mayor, divorciado, Fiscal Auxiliar, vecino de Alajuela, San Ramón, portador de la cédula de identidad 2-0484-0865, EDWIN HERRERA CAMBRONERO, mayor, casado, Empleado Judicial, vecino de Cartago, Central, portador de la cédula de identidad 1-0578-0466, EDWIN MATA ELIZONDO, mayor, soltero, Abogado, vecino de San José, Central, portador de la cédula de identidad 1-0801-0067, EIBOR PANIAGUA MARÍN, mayor, soltero, Jefe de Investigación, vecino de Cartago, Turrialba, portador de la cédula de identidad, 3-0323-0494, EIDY ARAYA DÍAZ, mayor, soltera, Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0080-0880, EIMY ESPINOZA ANCHÍA, mayor, divorciada, Coordinadora Judicial, vecina de Puntarenas, Golfito, portadora de la cédula de identidad 6-0026-0919, ELIAS APU VARGAS, mayor, soltero, Oficial de Seguridad, vecino de Guanacaste, Liberia, portador de la cédula de identidad, 7-0088-0345, ELISANDRO TREJOS CHÁVES, mayor, divorciado, Informático, vecino de San José, Moravia, portador de la cédula de identidad 1-0871-0722, ELIZABETH BOLAÑOS MENA, mayor, casada, Administradora, vecina de San José, Goicoechea, portadora de la cédula de identidad 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, mayor, casada, Administradora, vecina de San José, Central, portadora de la cédula de identidad 2-0505-0891, ELMER HERNÁNDEZ CASTILLO, mayor, casado, Administrador, vecino de Guanacaste, Santa Cruz, portador de la cédula de identidad 5-0247-0005, ELMER ORTIZ OBANDO, mayor, casado, Abogado, vecino de San José, Desamparados, portador de la cédula de identidad 2-0513-0201, ELPIDIO CALDERON CHAVES, mayor, soltero, Ingeniero Informático, vecino de San José, Hatillo, portador de la cédula de identidad 6-021 1-0169, ELVIN VARGAS SALAZAR, mayor, divorciado, Licenciado en Contaduría, vecino de San José, Alajuelita, portador de la cédula de identidad 6-0164-0923, EMILCE MILEIDY GARCIA SOLANO, mayor, casada, Psicóloga , vecina de San José, Aserrí, portadora de la cédula de identidad 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, mayor, divorciado, Abogado, vecino de San José, Aserrí, portador de la cédula de identidad 1-0905-0693 EMMA LÓPEZ RAMÍREZ, mayor, casada, Administradora, vecina de Cartago, Central, portadora de la cédula de identidad 6-0300-0418, ERICK ANTONIO MORA LEIVA, mayor, casado, Economista, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, mayor, casado, Abogado, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 1-0990-0489, ERICK CASTRO ZAMORA, mayor, divorciado, Perito Judicial, vecino de San José, Tibás, portador de la cédula de identidad, 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, mayor, casado, Informático, vecino de Limón, Central, portador de la cédula de identidad 1-0617-0454, ERICK LEWIS HERNÁNDEZ, mayor, casado, Informático, vecino de Heredia, San Francisco, portador de la cédula de identidad, 4-0157-0803, ERICK RODRÍGUEZ MORA, mayor, unión libre, Perito Judicial, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, mayor, casada, Gestora de Capacitación, vecina de Heredia, Santa Bárbara, portadora de la cédula de identidad, 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, mayor, divorciada, Licenciada en Administración, vecina de Heredia, Barva, portadora de la cédula de identidad 1-0921-0625, ERIKA LEIVA DÍAZ, mayor, casada, Empleada Judicial, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0905-0024, ERIKA MORALES CUBILLO, mayor, casada, Coordinadora Judicial, vecina de Puntarenas, Central, portadora de la cédula de identidad 1-0885-0266, ERIKA VILLALOBOS SOLANO, mayor, casado, Informática, vecina de Alajuela, San Rafael, portadora de la cédula de identidad 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, mayor, soltero, Técnico Especializado, vecino de Cartago, Juan Viñas, portador de la cédula de identidad 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, mayor, soltero, Criminòlogo, vecino de Heredia, Central, portador de la cédula de identidad 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, mayor, soltera, Coordinadora Judicial, vecina de Puntarenas, Comedores, portadora de la cédula de identidad 6- 0237-0005, ESTHER JIMÉNEZ AVILES, mayor, casada, Trabajadora Social, vecina de Puntarenas, Central, portadora de la cédula de identidad 1-0835-0109, EUGENIA ARIAS QUESADA, mayor, soltera, Informática vecino de Cartago, Central, portador de la cédula de identidad 3-0287-0420 EUNICE OBANDO SOLANO, mayor, soltera, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 7-0079-O1 52 EVA MARÍA ALVARADO RODRÍGUEZ, mayor, divorciada, Trabajadora Social, vecino de Alajuela, San Ramón, portador de la cédula de identidad 2-0377-0039, EVERALDO ALFARO FERLINI, mayor, casado, Criminalista vecino de San José, Coronado, portador de la cédula de identidad 1-0771 0854, EZEQUIEL ÁLVAREZ CABEZAS, mayor, casado, Empleado Judicial vecino de Heredia, Santo Domingo, portador de la cédula de identidad 1 1046-0548, FABIAN GORDIANO MONTERO MONTERO, mayor, casado Empleado Judicial, vecino de San José, Coronado, portador de la cédula de identidad 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, mayor divorciado, Administrador, vecino de San José, Central, portador de la cédula de identidad 1-0822-0756, FIORELLA PÉREZ FONSECA, mayor casada, Técnico Administrativo 1, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0300-0115, FLOR BRENES HERNANDEZ mayor, soltera, Secretaria, vecina de San José, Central, portadora de la cédula de identidad, 1-0886-0825, FLOR MARÍA MURILLO VINDAS, mayor, soltera, Trabajadora Social, vecina de Alajuela, Poás, portadora de la cédula de identidad 2-0458-0802, FLORA MARÍA CORDERO ROJAS mayor, soltera, Técnica en Comunicaciones, vecina de Puntarenas, Esparza portadora de la cédula de identidad 6-0225-0890, FLORIBEL CAMPOS SOLANO, mayor, casada. Administradora, vecina de San José, Curridabat portadora de la cédula de identidad 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, mayor, casada, Auditora, vecina de San José, Tibás, portadora de la cédula de identidad 2-0497-027 1, FLORIBETH PALACIOS ALVARADO mayor, casada, Abogada, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 6-0221-0749, FLORY ROCÍO CAMPOS SANDOVAL mayor, soltera, Secretaria, vecina de Alajuela, Central, portadora de la cédula de identidad 2-0414-0476, FRANCINI DELGADO LEON, mayor divorciada, Asistente Administrativa, vecina de Heredia, San Rafael portadora de la cédula de identidad 4-0168-0486, FRANCISCO .JOSE BONILLA GUZMÁN, mayor, divorciado, Criminalista, vecino de San José Desamparados, portador de la cédula de identidad 1-0640-0491 FRANCISCO MURILLO ZUÑIGA, mayor, soltero, Auxiliar de servicios, vecino de San José, Puriscal, portador de la cédula de identidad 1-0602-0162 FRANCOISE RODRÍGUEZ CORONADO, mayor, unión libre, Psicóloga, vecina de San José, Curridabat, portadora de la cédula de identidad 1-0944- 0235, FRANK GARCÍA MORAGA, mayor, casado, Custodio de Detenidos, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0298- 0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, mayor, soltero, Técnico Administrativo, vecino de Heredia, Santo Domingo, portador de la cédula de identidad, l-0900-Ol 31, FRANZ EDUARDO VEGA ZUÑIGA, mayor, casado, Médico Forense, vecino de Heredia, San Isidro, portador de la cédula de identidad, 3-0292-0396, FREDDY CHAJUD TORRES, mayor, soltero, Empleado Judicial, vecino de Puntarenas, Golfito, portador de la cédula de identidad 6-0164-0694, FRESSIA REVELES GÓMEZ, mayor, casada, Abogada, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 1-0922-0486, GABRIEL BARRANTES PALAFOX, mayor, casado, Oficial de Investigación, vecino de Heredia, Mercedes Norte, portador de la cédula de identidad 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, mayor, divorciada, Psicóloga, vecina de San José, Escazú, portadora de la cédula de identidad 1-O725- 0918, GAUDY AGUILAR ALFARO, mayor, casada, Informática, vecina de Guanacaste, Liberia, pOIÍadOI8 de la cédula de identidad 1-0935-0817, GERALD HUERTAS ORTEGA, mayor, divorciado, Técnico Especializado 5, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0926- 0977, GERARDO ALVARADO CHAVES mayor, casado, Planificador, vecino de Alajuela, Atenas, portador de la cédula de identidad 2-0378-0401, GERARDO CERVANTES FONSECA, mayor, casado, Perito Judicial, vecino de Cartago, Central, portador de la cédula de identidad 3-0278-0929, GERARDO MONGE BLANCO, mayor, casado, Abogado, vecino de San José, Coronado, portador de la cédula de identidad 1-0720-0430, GERARDO SÁNCHEZ RIVERA, mayor, soltero, Perito Judicial, vecino de Heredia, San Rafael, portador de la cédula de identidad 1-0741-0686, GERMAN ESQUIVEL CAMPOS, mayor, casado, Abogado, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0965-0647, GIAN JAVIER MUIR YOWNG, mayor, soltero, Informático, vecino de Alajuela, San Rafael, portador de la cédula de identidad 3-0300-0955, GILBERTO MORA MOLINA, mayor, divorciado, Oficial de Investigación, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0534-0866, GINA RAMÓN FERNÁNDEZ, mayor, casada, Trabajadora Social, vecina de Heredia, Santo Domingo, portadora de la cédula de identidad 1-0791- 0967, GINETHE RETANA UREÑA, mayor, casada, Administradora, vecina de San José, Central, portadora de la cédula de identidad 1-0765-0153, GINNETH DURAN CORRALES, mayor, casada, Abogada, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0689-0187, GINNETTE AMADOR GODOY, mayor, casada, Química, vecina de Heredia, Santa Bárbara, portadora de la cédula de identidad 8-0051-0937, GIOVANNY GONZALEZ HERNANDEZ, mayor, soltero, Investigador Judicial, vecino de San José, Goicoechea, portador de la cédula de identidad 1- 0956-0895, GISELLE GUTIÉRREZ SOTO, mayor, casada, Química, vecina de Heredia, Santo Domingo, portadora de la cédula de identidad 2-0408- 0809, GISELLE ROJAS ROJAS, mayor, soltera, Secretaria, vecina de Alajuela, San Carlos, portadora de la cédula de identidad 2-0507-0474, GLADYS NÚÑEZ RIVAS , mayor, soltera, Microbióloga, vecina de San José, Goicoechea, portadora de la cédula de identidad 5-0185-0742, GLORIA ESTELA ANGULO SMITH, mayor, viuda, Abogada, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-0728-0619, GREGORIO JOSÉ HERNÁNDEZ SANDÍ, mayor, casado, Técnico Judicial, vecino de San José, Turrubares, portador de la cédula de identidad 1- 1016-0149, GREIVIN HERNÁNDEZ CÓRDOBA, mayor, divorciado, Oficial de Investigación, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0445-0438, GUADALUPE VEGA SEQUEIRA, mayor, casada, Administradora, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, mayor, casado, Investigador Judicial, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-0760-0343, GUILLERMO ROSALES MORA, mayor, casado, Licenciado en Química, vecino de San José, Moravia, portador de la cédula de identidad 1-0731-0037, GUILLERMO VALVERDE MONGE, mayor, casado, Investigador Judicial, vecino de San José, Acosta, portador de la cédula de identidad 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, mayor, casado, Licenciado en Derecho, vecino de Heredia, Barva, portador de la cédula de identidad 6-0222-0170,GUSTAVORODRIGUEZ TENCIO, mayor, casado, Técnico Especializado, vecino de San José, Santa Ana, portador de la cédula de identidad 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, mayor, casada, Técnico Judicial 2, vecino de Limón, Central, portador de la cédula de identidad 7-0075-0 1 04, HANNIA VANESSA RAMÍREZ PICADO, mayor, divorciada, Administradora de Empresas, vecino de San José, Escazú, portador de la cédula de identidad 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, mayor, unión libre, Técnico en Comunicaciones, vecino de Guanacaste Nicoya, portador de la cédula de identidad 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, mayor, unión libre, Oficial de Comunicación, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0242-0405, l-IAZEL ALFARO GONZÁLEZ, mayor, casada, Salud Ocupacional, vecino de Alajuela, El Coyol, portador de la cédula de identidad 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, mayor, soltera, Abogada, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0869-0832, HÉCTOR SANTAMARÍA VIQUEZ, mayor, casado, Chofer, vecino de Alajuela, El Carmen, portador de la cédula de identidad 1-0908-0937, HEIDY ARAYA PINEDA, mayor, casada, abogada, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, mayor, casada, Abogada, vecina de Limón, Central, portadora de la cédula de i d e n t i d a d 1 - 0 8 1 9 - 0 3 5 4 , Hellen Vanessa Arias Fatjó, mayor, divorciada, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0788-0682, HENRY CAMACHO ESQUIVEL, mayor, casado, Administrador, vecino de Heredia, San Rafael, portador de la cédula de identidad 4~0156-0291, HENRY MOODIE FEDRICK, mayor, casado, Técnico Judicial, vecino de Limón, Central, portador de la cédula de identidad 7-01 12-031 5, HENRY TIJERINO ESPINOZA, mayor, casado, Empleado Judicial, vecino de Alajuela, San Antonio, portador de la cédula de identidad 5-0250-0209, HERNÁN VASQUEZ CASTAÑEDA, mayor, casado, Técnico Especializado, vecino de San José, Zapote, portador de la cédula de identidad 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, mayor, casado, Fiscal Auxiliar, vecino de Alajuela, Los Chiles portador de la cédula de identidad 1-0826-0702, IGNACIO GERARDO LEPIZ SALAZAR, mayor, soltero, Contador, vecino de Heredia, San Pablo, portador de la cédula de identidad 4-0164-0654, ILEANA MARÍA LEAL ZUÑIGA, mayor, casada, Técnico Judicial 3, vecina de Puntarenas Central, portadora de la cédula de identidad 6-0196-0131, ILEANA RIVERA BLANDÓN, mayor, soltera, Psicóloga, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 1-0822-0815, ILSE MARÍA GONZÁLEZ DOSMAN, mayor, casada, Coordinadora Judicial, vecina de Puntarenas, Esparza, portadora de la cédula de identidad 6-0240-0588, INDIRA ALFARO CASTILLO, mayor, soltera, Ingeniera en Sistemas, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 2-0462-0902, INEL GIBBONS GÓMEZ, mayor, casada, Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0109-0072, INGRID ANGULO SANCHEZ, mayor, soltera, Técnico Administrativo 2, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0285-0560, INGRID ARAYA LEANDRO, mayor, unión libre, Psicóloga, vecina de Cartago, Dulce Nombre, portadora de la cédula de identidad 1-0949-0945, INGRID SANOU KARLSON, mayor, divorciada, Microbióloga, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0593-0629, INOCENCIO GÓMEZ OBANDO, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 5-0186-0272, IRENE BLANCO MORALES, mayor, soltera, Administradora, vecina de San José, San Francisco, portadora de la cédula de identidad 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, mayor, casado, Investigador, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 1-0635-0364, IVÁN GRANADOS BARQUERO, mayor, soltero, Administrador, vecino de Cartago, San Rafael, portador de la cédula de identidad 3-0325-0944, IVÁN PÉREZ PÉREZ, mayor, unión libre, Custodio de Detenidos, vecino de Limón, Central, portador de la cédula de identidad 7-0087-0308, IVANNIA AGUILAR ARRIETA, mayor, casada, Administradora, vecina de Cartago, El Guarco, portadora de la cédula de identidad 1-0823-0346, IVANNIA MEDINA RAMIREZ, mayor, soltera, Empleada Judicial, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 1-091 1-0387, IVANNIA PATRICIA MORALES LÓPEZ, mayor, divorciada, Técnica de Sala, vecina de San José, Hatillo, portadora de la cédula de identidad 1-0879-0108, IVANNIA VALERIO VILLALOBOS, mayor, casada, Profesional 2, vecina de Heredia, San Isidro, portadora de la cédula de identidad 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, mayor, vecina de San José, portadora de la cédula de identidad 1-0841-0091, IVETH LORENA DUARTE CERDAS, mayor, divorciada, Perito Judicial, vecina de Limón, Central, portadora de la cédula de identidad 1-0877-0005, IVETH TORRES GONZÁLEZ, mayor, unión libre, Empleada Judicial, vecina de Guanacaste, Santa Cmz, portadora de la cédula de identidad 5-0235- O765, IVONNE VALVERDE SANABRIA, mayor, casada, Profesional 2, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, mayor, divorciado, Criminólogo, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, mayor, casado, Administrador, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0308-0930, JAVIER ALFARO VALERIO, mayor, casado, Auditor, vecino de Heredia, Belén, portador de la cédula de identidad 1-0660-0072, JAWER ALVARADO SORO, mayor, casado, Coordinador Judicial, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0391-0190,JAVIER FRANCISCO DELGADO CARAZO, mayor, casado, Investigador, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0257-0789, JAVIER LEAL DINARTE, mayor, casado, Investigador Judicial, vecino de Guanacaste, Santa Cruz, portador de la cédula de identidad 5-0268-0217, JAVIER QUESADAQUESADA, mayor, casado, Jefe de Investigación 3,vecino de San José, Central, portador de la cédula de identidad 1-0739-0219, JAVIER WNDAS ROCHA, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-0749-0307, JEANNETTE BARBOZA CASCANTE, mayor, casada, Psicóloga, vecina de Alajuela, Central, portadora de la cédula de identidad 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, mayor, casado, Criminalista, vecino de Cartago, La Unión, portador de la cédula de identidad 1-O910-0476, Jennifer Stephenson Sterling, mayor, divorciada, empleada Judicial, vecina de Limón, Guápiles, portadora de la cédula de identidad 7-0096-0630, JENNY ARCE CÓRDOBA, mayor, casada, Administradora, vecina de Cartago, Dulce Nombre, portadora de la cédula de identidad 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, mayor, casada, Arquitecta, vecina de Cartago, Guadalupe, portadora de la cédula de identidad 3-0313-0291, JENNY NÚÑEZ SALAZAR, mayor, casada, Auxiliar Administrativo, vecina de Puntarenas, Corredores, portadora de la cédula de identidad 6-0280-0719, JEREMY EDUARTE ALEMÁN, mayor, casado, Empleado Judicial, vecino de Heredia, Central, portador de la cédula de identidad 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, mayor, divorciado, Perito Judicial, vecino de San José, Alajuelita, portador de la cédula de identidad 1-0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, mayor, soltera, Abogada, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 1-0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, mayor, casada, Administradora, vecina de Heredia, Flores, portador de la cédula de identidad 1-0881-0675, JHONNY ALFARO NAVARRETE, mayor, casado, Investigador, vecino de Heredia, Barva, portador de la cédula de identidad 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, mayor, divorciado, Ingeniero en Sistemas, vecino de San José, Santa Ana, portador de la cédula de identidad 1-0787-0155, JOHANNA CHAVES LEÓN, mayor, casada, Trabajadora Social, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0897-0130, JOHN PALADINO JIMÉNEZ, mayor, casado, Técnico Especializado, vecino de San José, Puriscal, portador de la cédula de identidad 1-0941-0472, JOHNNY ALVAREZ SANDÍ, mayor, divorciado, Auxiliar de Seguridad, vecino de Limón, Central, portador de la cédula de identidad 7-0078-0010, JONATHAN GAMBOA VALLADARES, mayor, casado, Criminalista, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 2-0495-0512, JONATHAN GOÑI CHAVES, mayor, casado, Jefe de Interpol, vecino de Heredia, San Rafael, portador de la cédula de identidad 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, mayor, soltero, Ingeniero en Sistemas, vecino de Heredia, San Pablo, portador de la cédula de identidad 1-0973-0613, JORGE AGUILAR PÉREZ, mayor soltero, Médico Forense, vecino de Heredia, Barva, portadora de la cédula de identidad 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, mayor, casado, Investigador, vecino de Heredia, Central, portador de la cédula de identidad 1-0753-0847, JORGE ANTONIO CORDERO CHACON, mayor, soltero, Administrador, vecino de San José, Santa Ana, portador de la cédula de identidad 1-1019-0604, JORGE ANTONIO CHACON COREA, mayor, unión libre, Empleado Judicial, vecino de San José, Coronado, portador de la cédula de identidad 1-0762-0236, JORGE CONTRERAS LACAYO, mayor, casado, Técnico Administrativo 1, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, mayor, casado, Investigador Judicial, vecino de Heredia, Flores, con la cédula de identidad 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, mayor, divorciado, Ingeniero en Sistemas, vecino de San José, Central, portador de la cédula de identidad 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, mayor, casado, Abogado, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, mayor, casado, Empleado Judicial, vecino de San José, Hatillo, portador de la cédula de identidad 1-0612-0417, JORGE MARIO ROJAS MEJIAS, mayor, casado, Administrador, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0500-0326, JORGE ROBLES ZÚÑIGA, mayor, viudo, Contador, vecino de Cartago, Central, portador de la cédula de identidad 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, mayor, casado en segundas nupcias, Administrador, vecino de Heredia, Heredia, portador de la cédula de identidad número 1-0778-0897, JOSÉ EFRAIN SANDERS QUESADA, mayor, casado, Abogado, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 1-0740-0038, JOSE ALBERTO RIVERA OLIVARES, mayor, casado, Abogado, vecino de Alajuela, San Carlos, portador de la cédula de identidad 1-0793-0076, JOSÉ ALEXANDER MORA GARCÍA, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-0706-0010, JOSE ALONSO RODRÍGUEZ VARGAS, mayor, casado, Oficial de Investigación, vecino de Alajuela, San Ramón, portador de la cédula de identidad 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACON, mayor, casado, Perito Judicial, vecino de Heredia, San Isidro, portador de la cédula de identidad 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, mayor, divorciado, Profesional en Informática, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-0670-0201, JOSÉ GILBERTO ROJAS CHACON, mayor, casado, Investigador Judicial, vecino de Cartago, Paraíso, portador de la cédula de identidad 1-0684- 0910, JOSÉ LUIS BADILLA CUADRA, mayor, divorciado, Técnico Judicial, vecino de Cartago, Turrialba, portador de la cédula de identidad, 2-0449- OOO4, JOSÉ LUIS BENAVIDES UMAÑA, mayor, soltero, Abogado, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0714-0628, JOSE LUIS PERAZA ÁLVAREZ, mayor, divorciado, Ingeniero Mecánico, vecino de Alajuela, Central, portador de la cédula de identidad 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, mayor, divorciado, Asistente Administrativo, vecino de San José, Alajuelita, portador de la cédula de identidad l-O873-0458, JOSÉ MAURICIO FONSECA UMAÑA, mayor, casado, Administrador, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0921- 028, JOSÉ RAFAEL ROJAS LÓPEZ, mayor, casado, Criminólogo, vecino de San José, Santa Ana, portador de la cédula de identidad 1-0772-09 1 7, JOSÉ RAMÓN HIDALGO HIDALGO, mayor, casado, Empleado Judicial, vecino de San José, Aserrí, portador de la cédula de identidad 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMIREZ, mayor, casado, Custodio de Detenidos, vecino de San José, Calle Blancos, portador de la cédula de identidad 3- 320-980, JOSÉ RUBÉN DIMAS PORTILLO, mayor, casado, Administrador, vecino de San José, Coronado, portador de la cédula de identidad, 8-0070-0864, JUAN CARLOS ARIAS AGUILAR, mayor, casado, Investigador Judicial, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0408-0344, JUAN CARLOS CAMPOS MARIN, mayor, casado, Investigador, vecino de Heredia, Santa Bárbara, portador de la cédula de identidad 1-0838-0041, JUAN CARLOS LEAL VEGA, mayor, casado, Administrador, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, mayor, casado, Investigador Judicial, vecino de Heredia, Belén, portador de la cédula de identidad 2-0448-0967, JUAN CARLOS QUESADA QUESADA, mayor, casado, Licenciado en Criminología, vecino de San José, Puriscal, portador de la cédula de identidad 1-0796-0215, JUAN CARLOS SALAS VARELA, mayor, divorciado, Técnico Administrativo 2, vecino de Limón, Central, portador de la cédula de identidad 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, mayor, soltero, Administrador, vecino de San José, Coronado, portador de la cédula de identidad 1-0922-0112, JUAN JOSE ACUÑA PASTRANA, mayor, casado, Coordinador Judicial, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, mayor, casado, Unidad Canina, vecino de Alajuela, Central, portador de la cédula de identidad 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, mayor, casado, Abogado, vecino de Alajuela, Central, portador de la cédula de identidad 2-0486-0526JUAN LUIS SÁNCHEZ ALVARADO, mayor, casado, Oficial de Investigación, vecino de Limón, Siquirres, portador de la cédula de identidad 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, mayor, divorciado, Investigador Judicial, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, mayor, casado, Chofer, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-02 l 5-0 l 75, KAREN ALFARO VARGAS, mayor, unión libre, Abogada, vecina de Alajuela, Orotina, portadora de la cédula de identidad 1-0808-0716, KAREN JACKELYN THOMAS SMITH, mayor, casada, Investigadora, vecina de Limón, Central, portadora de la cédula de identidad 7-0096-0607, KARIN AGUILAR MOLINARI, mayor, soltera, Abogada, vecina de Alajuela, Atenas, portadora de la cédula de identidad 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, mayor, divorciada, Secretaria, vecina de Heredia, Central, portadora de la cédula de identidad 1-09 l 0-0203, KARLA SANCHO VARGAS, mayor, soltera, Perito Judicial, vecina de San José, Zapote, portadora de la cédula de identidad 1-0779-0289, KAROLINA RIVERA ESPINOZA, mayor, soltera, Abogada, vecina de Heredia, Central, portadora de la Cédula de identidad 2-051 4-0769, KATTIA CAMPOS ZÚÑIGA, mayor, casada, Jefe Administrativo 4, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0707-0725, KATTIA CORDERO SOLANO, mayor, casada, Técnico Administrativo 2, vecina de Heredia, San Rafael, portadora de la cédula de identidad 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, mayor, Abogada, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0984-0078, KATIA MARCELA SABORIO SOTO, mayor, divorciada, Jefe Administrativo 4, vecina de Cartago, El Guarco, portadora de la cédula de identidad 4-0137-0134, KATTIA MARÍA VARGAS PEREZ, mayor, casada, Empleada Judicial, vecina de San José, Desamparados, portadora de la cédula de identidad 1- 0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, mayor, casada, Psicóloga, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-0646-0777, KATTIA MORALES NAVARRO, mayor, casada, Empleada Judicial, vecina de San José, Moravia, portadora de la cédula de identidad 1-0801-0141, KATTIA SABORIO CHAVERRI, mayor, casada, Química, vecina de Alajuela, Central, portadora de la cédula de identidad 2-0453- O781, KATTIA VARGAS NAVARRO, mayor, casada, Técnica Judicial, vecina de San José, Pérez Zeledón, portador de la cédula de identidad 1-070 1-0539, KATTIA VARGAS VEGA, mayor, divorciada, Empleada Judicial, vecina de Cartago, San Francisco, portadora de la cédula de identidad 1-0810-0668, KATTIA CECILIA MARÍN MIRANDA, mayor, casada, Secretaria, vecina de San José, Curridabat, portadora de la cédula de identidad 1-0784-0554, KATTIA VARGAS SALAS, mayor, casada, Técnica Judicial, vecina de Heredia, Mercedes Norte, portadora de la cédula de identidad 1-0793-07 18, KATTYA MERCEDES MONGE PACHECO, mayor, casada, Empleada Judicial, vecina de Cartago, Oreamuno, portadora de la cédula de identidad 3-0337-0036, KRISIA FUMERO ARAYA mayor, casada, Psicóloga, vecina de Cartago, Turrialba, portadora de la cédula de identidad 3-0324-0912, LAURA PATRICIA CHACON MORA, mayor, casada, Psicóloga, vecina de Heredia, San Isidro, portadora de la cédula de identidad 1-0708- 0 4 7 2 , Leda Ginette Solano Ibarra, mayor, divorciada, Administradora, vecina de Heredia, Barva, portadora de la cédula de identidad 6-0166-0755, LEONARDO BRENES GOMEZ, mayor, casado, Fiscal, vecino de Alajuela, Central, portador de la cédula de identidad 1- 0921-0927, LIDIA ISABEL VASQUEZ VALLEJOS, mayor, soltera, Técnico Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0265-0923, LIGIA CASTILLO CASTILLO, mayor, divorciada, Atención de Víctima, vecina de Cartago, La Pitahaya, portadora de la cédula de identidad 3-0344-0861, LILLIAM MARÍA GARITA SHARPE, mayor, soltera, Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0074-0805, LILLIANA ROJAS MORA, mayor, divorciada, Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-01 1 1-0674, LILLIANA SABORIO SABORÍO, mayor, divorciada, Administradora, vecina de Alajuela, Grecia, portadora de la cédula de identidad 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, mayor, soltera, Empleada Judicial, vecina de Alajuela, San Carlos, portadora de la cédula de identidad 2-0497-0272, LIZETH BARAHONA CASTILLO, mayor divorciada, Técnica Judicial 3, vecina de Limón, Central, portadora de la cédula de identidad 7-0097-0842, LIZETH ROGERS ROGERS, mayor casada, Empleada Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0101-0960, LIZETTE BRENES ARCE, mayor, casada Técnica Judicial, vecina de San José, Guadalupe, portadora de la cédula de identidad 1-0715-0167, LIZZETH CRUZ TORRES, mayor, divorciada Trabajadora Social, vecina de Heredia, Mercedes Norte, portadora de la cédula de identidad 1-0615-0237, LORELEY CERDAS ÁVILA, mayor casada, Microbióloga, vecina de Alajuela, Desamparados, portadora de la cédula de identidad 1-0723-0311, LORENA RODRÍGUEZ SALAS, mayor soltera, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0744-0409, LOURDES ANGULO JIMÉNEZ, mayor casada, Abogada, vecina de Guanacaste, Nicoya, portadora de la cédula de identidad 5-0257-0944, LUCRECIA ROJAS ROJAS, mayor, casada Auditora, vecina de Cartago, San Nicolas, portadora de la cédula de identidad 3-0272-0321, LUIS ÁLVAREZ VINDAS, mayor, casado, Investigador Judicial, vecino de Alajuela, Naranjo, portador de la cédula de identidad 2-0417-0295, LUIS ANGEL MATAMOROS ARIAS, mayor, divorciado, Custodio, vecino de San José, Hatillo, portador de la cédula de identidad 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, mayor, divorciado, Administrador, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0793-0256, LUIS DIEGO CHAVARRIA GARCÍA, mayor, casado, Abogado, vecino de San José, Aserrí, portador de la cédula de identidad 1-0948-01 18, LUIS DIEGO ZARATE MORALES, mayor, soltero, Técnico Administrativo, vecino de San José, Curridabat, portador de la cédula de identidad 1-0993-0395, LUIS EDUARDO RODRÍGUEZ QUIRÓS, mayor, divorciado, Profesional en Criminología, vecino de San José, San Sebastián, portador de la cédula de identidad 1-0605-0013, LUIS ENRIQUE ARROYO ACUÑA, mayor, divorciado, Ingeniero en Sistemas, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0626-0336, LUIS ENRIQUE LEÓN RODRIGUEZ, mayor, casado, Analista Criminal, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0313-0263, LUIS FALLAS PIVA, mayor, casado, Auxiliar Administrativo, vecino de Alajuela, Central, portador de la cédula de identidad 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, mayor, casado, Auxiliar Administrativo, vecino de Heredia, Santa Bárbara, portador de la cédula de identidad 1-0884-0317, LUIS FERNANDO RODRIGUEZ ARTAVIA, mayor, casado, Criminalista, vecino de Alajuela, San Carlos, portador de la cédula de identidad 2-0467- 0324, LUIS FERNANDO SOLIS VILLEGAS, mayor, divorciado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1- 0576-0916, LUIS FERNANDO SAEDWIN MATAREZ JIMÉNEZ, mayor, casado, Abogado, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-0738-0178, LUÍS GERARDO MARTINEZ GARCIA, mayor, unión libre, Oficial de Seguridad, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, mayor, unión libre, Perito Judicial, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, mayor, casado, Administrador, vecino de San José, Montes de Oca, portador de la cédula de identidad 1-0784-0409, LUIS GUILLERMO COTO QUESADA, mayor, soltero, Técnico en Mantenimiento, vecino de Cartago, La Unión, portador de la cédula de identidad 3-0242-0147, LUIS GUILLERMO VASQUEZ UREÑA, mayor, casado, Contador, vecino de San José, Aserrí, portador de la cédula de identidad 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, mayor, unión libre, Técnico Judicial, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0240-0795, LUIS MANUEL RAMIREZ SOLÍS, mayor, divorciado, vecino de Santa Bárbara de Heredia, portador de la cédula de identidad número 2-0435-0895, LUIS MATAMOROS CARVAJAL, mayor, casado, Empleado Judicial, vecino de Cartago, La Unión, portador de la cédula de identidad 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, mayor, soltero, Investigador, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0661-0772,LUIS RODRIGO CAMPOS GAMBOA, mayor, soltero, Abogado, vecino de Heredia, Central, portador de la cédula de identidad 1-0802-0480, LUIS RODRIGO GUTIERREZ ARGUEDAS, mayor, casado, Oficial de Investigación, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 1-0940-0199, LUIS RODRÍGUEZ CRUZ, mayor, casado, Empleado Judicial, vecino de Limón, Central, portador de la cédula de identidad 7-0090-0234, LUIS VASQUEZ VALLEJOS, mayor, soltero, Coordinador, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0247-0313, KATIA MARCELA SABORIO SOTO, mayor, divorciada, Jefe administrativo 4, vecina de Cartago, El Guarco , portadora de la cédula de identidad 4-0137-0134, MABEL MURILLO ARCE, mayor, casada, Secretaria, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 2-0443-0636, MAGALIE VARGAS JOHNSON, mayor, casada, Administradora, vecina de Limón, Central, portadora de la cédula de identidad 7-0090-0188, MALCO MONTOYA RAMÍREZ, mayor, casado, Auxiliar Administrativo, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0262-0199, MANFRED QUESADA SÁNCHEZ, mayor, casado, Jefe de Investigación 3, vecino de Alajuela, Palmares, portador de la cédula de identidad 6-0268- 0546, MANUEL ALEJANDRO TORRES CASTRO, mayor, casado, Administrador, vecino de San José, Moravia, portador de la cédula de identidad 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, mayor, casado, Técnico en Telemática, vecino de San José, Coronado, portador de la cédula de identidad 1-0708-0291, MANUEL ERNESTO DURAN CASTRO, mayor, casado, Empleado Judicial, vecino de San José, San Francisco, portador de la cédula de identidad 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, mayor, casado, Empleado Judicial, vecino de San José, Tibás, portador de la cédula de identidad 6-0231-0761, MANUEL OREAMUNO ZEPEDA, mayor, casado, Licenciado en Química, vecino de Heredia, Santo Domingo, portador de la cédula de identidad 1-0859-0237, MANRIQUE MORALES MONTIEL, mayor, divorciado, Empleado Judicial, vecino de Puntarenas, Central, portador de la cédula de identidad 6-027 1-0224, MARCELA MADRIZ ARCE, mayor, casada, Psicóloga, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 3-0271-0457, MARCELA ZUÑIGA JIMÉNEZ, mayor, casada, Administradora, vecina de Cartago, Los Ángeles, portadora de la cédula de identidad 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, mayor, divorciado, Técnico de Sala, vecino de San José, Zapote, portador de la cédula de identidad 1-0518-0695, MARCO ANTONIO CARRION HERNÁNDEZ, mayor, divorciado, Jefe de Investigación, vecino de San José, Central, portador de la cédula de identidad 1-0817- 0932, MARCO ANTONIO HERRERA CHARRAUN, mayor, casado, Productor Audiovisual, vecino de San José, Montes de Oca, portador de la cédula de identidad 1-0870-0028, MARCO BADILLA BERMUDEZ, mayor, casado, Investigador, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, mayor, divorciado, Oficial de Investigación, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0316-0545, MARCO v1N1c1o FUENTES SÁNCHEZ, mayor, casado, Abogado, vecino de Cartago, El Guarco, portador de la cédula de identidad 1-0801-0273, MARCO VINICIO PORRAS MORALES, mayor, soltero, Oficial de Investigación, vecino de Alajuela, Naranjo, portador de la cédula de identidad 2-0429-0412, MARCO VINICIO RODRIGUEZ ARAGÓN, mayor, casado, Ingeniero Civil, vecino de Alajuela, La Guácima, portador de la cédula de identidad 2-0485-0423, MARCONY ARBUROLA VALVERDE, mayor, casado, Oficial de Investigación, vecino de San José, Desamparados, portador de la cédula de identidad 5- 0246-0169, MARGARITA CERDAS VEGA, mayor, casada, Empleada Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELASQUEZ, mayor, divorciada, Empleada Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, mayor, soltera, Coordinadora Judicial 2, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0968-0625, MARIA AUXILIADORA SOTO RIVERA, mayor, casada, Técnica Judicial, vecino de San José, Moravia. portador de la cédula de identidad 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, mayor, divorciada, Criminóloga, vecina de San José, San Francisco, portadora de la cédula de identidad 1-0539- 0560, MARÍA DE LA CRUZ ARROYO BRAVO, mayor, soltera, Licenciada en Química, vecina de Alajuela, Atenas, portadora de la cédula de identidad 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRIGUEZ, mayor, casada, Microbióloga, vecina de San José, Pavas, portadora de la cédula de identidad 1-0700-0492, MARIA DE LOS ÁNGELES CHAVES VARGAS, mayor, divorciada, Jefe Administrativo, vecina de Heredia, San Rafael, portadora de la cédula de identidad 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, mayor, soltera, Coordinadora, vecina de Guanacaste, Nicoya, portadora de la cédula de identidad 5-0248-0031 MARÍA DEL CARMEN VASQUEZ VALLEJOS, mayor, soltera, Coordinadora Judicial, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 5-0233-0377, MARÍA ELENA MOLINA SABORIO, mayor soltera, Técnica Judicial 3, vecina de Puntarenas, Montes de Oro, portadora de la cédula de identidad 6-0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, mayor, soltera, Abogada, vecina de Alajuela, Grecia, portadora de la cédula de identidad 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ mayor, casada, Administradora, vecina de Heredia, San Francisco portadora de la cédula de identidad 1-0655-0648, MARÍA JOSE CHAVES GUZMÁN, mayor, casada, Empleada Judicial, vecina de San José, Moravia portadora de la cédula de identidad 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, mayor, soltera, Técnico Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0300-0346, MARIA LUCRECIA CHAVES TORRES, mayor, casada, Administradora vecina de San José, Moravia, portadora de la cédula de identidad 3-0274 0283, MARÍA MARGOTH CASTRO SALAZAR, mayor, casada, Abogada, vecina de Alajuela, El Coyol, portadora de la cédula de identidad 2-0454- 0319, MARÍA MARITZA PIZARRO COREA, mayor, soltera, Auxiliar Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-O2825- 0080, MARIA TERESA BENAVIDES ARGUELLO, mayor, divorciada, Administradora, vecina de Heredia, Santo Domingo, portadora de la cédula de identidad 1-0715-0688, MARÍA VALENTINA CARMIOL YALICO, mayor, divorciada, Investigadora, vecina de Guanacaste, Nicoya, portador de la cédula de identidad 1-0744-0771, MARÍA VERONICA SALAZAR PIZARRO, mayor, soltera, Secretaria, vecina de Limón, Rio Blanco, portadora de la cédula de identidad 1-0910-0807, MARIA ANTONIETA HERRERA CHARRAUN, mayor, casada, Contadora Publica, vecina de San José, Curridabat, portadora de la cédula de identidad 1-0820-0799, MARIANO RODRÍGUEZ FLORES, mayor, soltero, Administrador, vecino de San José, Acosta, portador de la cédula de identidad 1-0971-0033, MARIBEL LÓPEZ BERMUDEZ, mayor, casada, Administradora, vecina de Limón, Central, portadora de la cédula de identidad 7-0120-0576, MARIO ANGULO SALAZAR, mayor, soltero, Abogado, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-1014-0171, MARIO CAMACHO CAMPOS, mayor, divorciado, Jefe de Investigación, vecino de Puntarenas, Osa, portador de la cédula de identidad 1-0845-0638, MARIO MIRANDA DE LA O, mayor, casado, Técnico Especializado, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, mayor, soltera, Técnica Judicial, vecina de San José, Desamparados, portadora de la cédula de identidad 5-0241-0198, MARITZA VALVERDE CORDERO, mayor, soltera, Bibliotecóloga, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, mayor, soltera, Oficinista, vecina de San José, Central, portadora de la cédula de identidad 1-0604-0812, MARJORIE SANABRIA ROJAS, mayor, divorciada, Criminóloga, vecina de San José, Montes de Oca, portadora de la cédula de identidad 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, mayor, soltera, Notificadora, vecina de San José, Puriscal, portadora de la cédula de identidad 9-0073-0359, MARLENE ACEVEDO MONTES, mayor, casada, Empleada Judicial, vecina de Puntarenas, Golfito, portadora de la cédula de identidad 6-0152-0743, MARLENE ALPIZAR LÓPEZ, mayor, soltera, Administradora, vecina de San José, Tibás, portadora de la cédula de identidad 1-0607-0484, MARLENY RAMÍREZ GAMBOA, mayor, casada, Secretaria, vecina de Heredia, Barva, portadora de la cédula de identidad 4-0 150-0093, MARLON ARIAS QUIROS, mayor, casado, Abogado, vecino de Cartago, Central, portador de la cédula de identidad 1-0120-0929, MARLYN CASTRO ALVARADO, mayor, casado, Técnico Especializado, vecino de Puntarenas. Corredores, portador de la cédula de identidad 9-0076-0447, MARLYN ELENA QUESADA QUESADA, mayor, soltera, Licenciada en Administración, vecina de San José, San Pedro, portadora de la cédula de identidad 1-0620-0077, MARTA LADY ZUÑIGA SÁNCHEZ, mayor, casada, Técnica Administrativa, vecina de San José, Calle Blancos, portadora de la cédula de identidad 1-0692- 0673. MARTÍN HERNÁNDEZ SERRANO, mayor, divorciado, Informático, vecino de Alajuela, Central, portador de la cédula de identidad 1-0726-072 1 , MARVIN ANGULO DÍAZ, mayor, casado, Criminalista, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 1-0623-0439, MARVIN DURAN FERNANDEZ, mayor, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0258-0595, MARVIN DURAN PEREIRA, mayor, divorciado, Abogado, vecino de Cartago, Turrialba, portador de la cédula de identidad 3-0258-0595, MAUREEN BOLAÑOS ROJAS, mayor, soltera, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0784-0631, MAUREEN SILES MATA, mayor, casada, Administradora, vecina de San José, Moravia, portadora de la cédula de identidad 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ mayor, casada, Auxiliar Administrativo, vecina de San José, Alajuelita portadora de la cédula de identidad 1-1003-0126, MAUREEN IONG UREÑA mayor, casada, Abogada, vecina de San José, Moravia, portadora de la cédula de identidad 1-0815-0990, MAUREN VENEGAS MENDEZ, mayor casada, Jefe Administrativo 4. vecina de San José, Goicoechea, portadora de la cédula de identidad 3-0339-0814, MAURICIO CORRALES JIMÉNEZ mayor, casado, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA mayor, divorciado, Empleado Judicial, vecino de San José, Montes de Oca portador de la cédula de identidad 1-0783-0049, MAURICIO RETANA GONZALEZ, mayor, casado, Criminólogo, vecino de Cartago, El Guarco portador de la cédula de identidad 1-0919-01 11, MAX ALEXANDER LOPEZ LÓPEZ, mayor, casado, Custodio de Detenidos, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, mayor, en unión de hecho, empleada judicial vecina de San José, Tibás, portadora de la cédula de identidad 7-0087-0424 MAYRA GISELLA GONZALEZ, SANCHEZ, mayor, divorciada, Auxiliar Administrativo, vecina de Heredia, Mercedes Norte, portadora de la cédula de identidad 1-0567-0766, MELANIA GÓMEZ ACUÑA, mayor, soltera, Radioperadora, vecina de Cartago, Central, portadora de la cédula de identidad 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, mayor, casado, Empleado Judicial. vecina de Alajuela, San Carlos, portadora de la cédula de identidad 2-0530-0824, MICHAEL JIMENEZ UREÑA, mayor, casado, Ingeniero en Sistemas, vecino de San José, Aserrí, portador de la cédula de identidad 1-0881-0296, MIGUEL ANGEL AZOFEIFA LIZANO, mayor, divorciado, Empleado Judicial, vecino de Heredia, Central, portador de la cédula de identidad 1-0747-01 85, MIGUEL ANGEL MUÑOZ FLORES, mayor, soltero, Administrador, vecino de San José, Tibás, portador de la cédula de identidad 7-0072-0678, MIGUEL OVARES CHAVARRIA, mayor, soltero, Contador, vecino de San José, Central, portador de la cédula de identidad 1- 1 006-0605, MINOR ANCHÍA VARGAS, mayor, casado, Administrador, vecino de San José, Curridabat, portador de la cédula de identidad 1-0739-0416, MINOR ANTONIO JIMENEZ VARGAS, mayor, casado, Abogado, vecino de Alajuela, San Ramón, portador de la cédula de identidad 6-0217-0066, MINOR MONGE CAMACHO, mayor, divorciado, Criminòlogo, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0676-0442, MINOR RIVAS TORRENTES, mayor, casado, Oficial de Investigación, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0223-0870, MINOR ZÚÑIGA GONZALEZ, mayor, soltero, Empleado Judicial, vecino de Cartago, Central, portador de la cédula de identidad 3-0316-0212, MIXCY CHAVES MENDOZA, mayor, divorciada, Apoyo Jurídico, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0309-0547, MOISÉS ALVARADO CHACON, mayor, casado, Investigador, vecino de San José, Desamparados, portador de la cédula de identidad 1-0677-0216, NANCY VILLAWCENCIO ALEMÁN, mayor, casada, Contadora, vecina de Heredia, San Rafael, portadora de la cédula de identidad 5-0247-0582, NATACHA PIZARRO SOTO, mayor, divorciada, Coordinadora Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, mayor, soltera, Trabajadora Social, vecina de Alajuela, San Ramón, portador de la cédula de identidad 2-0443-0931, NELSON PÉREZ GUADAMUZ, mayor, casado, Empleado Judicial, vecino de Cartago, Paraíso, portador de la cédula de identidad, 1-0901-0416, NÍDIA CASTRO CONEJO, mayor, casada, Coordinadora, vecina de Heredia, Central, portadora de la cédula de identidad 1-0776-0726, NILLS ROJAS JARA, mayor, divorciado, Abogado, vecino de Alajuela, San Carlos, portador de la cédula de identidad 7-0102-0481, NUBIA AGUILAR CAMACHO, mayor, casada, Técnica Judicial, vecina de San José, Goicoechea, portadora de la cédula de identidad 1-0582-0179, NURIA QUESADA ZAMORA, mayor, soltera, Secretaria, vecina de San José, Pérez Zeledón, portadora de la cédula de identidad 1-06 19-0414, OLDEMAR CERDAS JUÁREZ, mayor, casado, Investigador, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0252-0491, OLGA MURILLO ESPINOZA, mayor, casada, Trabajadora Social. vecina de Alajuela, San Ramón, portadora de la cédula de identidad 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, mayor, viuda, Técnica Administrativa, vecina de San José, Tibás, portadora de la cédula de identidad 1-0775-0839, OLTVIER CORRALES RODRÍGUEZ, mayor, divorciado, Custodio de Detenidos, vecino de Alajuela, Naranjo, portador de la cédula de identidad 2-0459-0740, OMAR AGÚERO ROJAS, mayor, divorciado, Técnico Especializado s, vecino de Guanacaste, Santa Cruz, portador de la cédula de identidad 6-0152-077, OMAR BRENES CAMPOS, mayor, soltero, Empleado Judicial, vecino de San José, Central, portador de la cédula de identidad 1-0889-0754, ORLANDO CASTRILLO VARGAS, mayor, casado, Informático, vecino de Cartago, La Unión, portador de la cédula de identidad 1 - 0 7 3 0 - 0 3 3 5, Osbaldo Rosales Chacón, m a y o r , d i vo r c i a do, Administrador, vecino de Heredia, Central, portador de la cédula de identidad 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, mayor, casado, Abogado, vecino de Heredia. Barva. portador de la cédula de identidad 4-0154-0227, OSVALDO LÓPEZ MORA, mayor, casado, Abogado, vecino de San José, Desamparados, portador de la cédula de identidad 1- 0926-0995, OSVALDO RODRÍGUEZ FLORES, mayor, casado, Técnico en Comunicaciones, vecino de Limón, Matina, portador de la cédula de identidad 6-0251-0813, OSWALDO JOSÉ VASQUEZ MADRIGAL, mayor, casado, Empleado Judicial, vecino de Cartago, Central, portador de la cédula de identidad 3-0301-0666, PABLO MACEO SOTO, mayor, casado, Técnico en Comunicaciones, vecino de Limón, Central, portador de la cédula de identidad 7-0112-0501, PABLO ROLDAN UMAÑA, mayor, divorciado, Ingeniero Industrial, vecino de San José, Escazú, portador de la cédula de identidad 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, mayor, casada, Contadora, vecina de Heredia, Barva, portadora de la cédula de identidad 4- 0161-0248, PATRICIA FALLAS MELENDEZ, mayor, divorciada, Química, vecina de Cartago, Tres Ríos, portadora de la cédula de identidad 1-0660- 0570, PATRICIA RIVERA SANDOVAL, mayor, casada, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0782- 0780, PATRICIA WO CHING MOK, mayor, soltera, Secretaria, vecina de San José, Montes de Oca, portadora de la cédula de identidad 7-O094- 0757, PAULO HUMBERTO MENA QUESADA, mayor, casado, Administrador, vecino de Cartago, Central, portador de la cédula de identidad 3-0331-Ol 09, PEDRO ARCE GONZÁLEZ, mayor, casado, Jefe de Unidad, vecino de Alajuela, Atenas, portador de la cédula de identidad 2-0385-0931, PEDRO BONILLA PICADO, mayor, casado, Empleado Judicial, vecino de Puntarenas, Osa, portador de la cédula de identidad 6-Ol 60-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, mayor, casado, Abogado, vecino de San José, Coronado, portador de la cédula de identidad 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, mayor. casado, Empleado Judicial, vecino de Alajuela, El Roble, portador de la cédula de identidad 2-0490-0234, RAFAEL DAVID VEGA SEGURA, mayor, casado, Abogado, vecino de Puntarenas, Puerto Jiménez, portador de la cédula de identidad 1-0791-0159, RAFAEL NAVARRETE BRENES, mayor, casado, Jefe de Investigación, vecino de Limón, Central, portador de la cédula de identidad 7-0104-0669, RAFAEL UREÑA BARRIOS, mayor, divorciado, Técnico Administrativo, vecino de San José, San Francisco, portador de la cédula de identidad 1-0915-0224, RALOXS ALVARADO CASCANTE, mayor, casado, Supervisor de Seguridad, vecino de Alajuela, La Guácima, portador de la cédula de identidad 1-0873- 0410, RAMÓN ANGULO ROLDÁN, mayor, casado, Empleado Judicial, vecino de Heredia, Central, portador de la cédula de identidad 1-0554-0410, RANDALL RODRIGUEZ ULATE, mayor, casado, Empleado Judicial, vecino de Cartago, El Tejar, portador de la cédula de identidad 1-0783-0793, RANDY MARTÍN TREJOS MORALES, mayor, casado, Abogado, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 1-0758-0892, RAQUEL RAMIREZ BONILLA, mayor, casada, Administradora, vecina de San José, portadora de la cédula de identidad 1-0997-0349, RASHID BEIRUTE GRANADOS, mayor, separado de hecho, Coordinador Judicial, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0243- 0570, RAYVAN MC LEOD BIGSBY, mayor, casado, Auxiliar de Servicios, vecino de Limón, Central, portador de la cédula de identidad 7-01 02- 0768, REBECA GUARDIA MORALES, mayor, divorciada, Abogada, vecina de Heredia, Lagunilla, portadora de la cédula de identidad 1-0808-0973, REBECCA ARTAWA BRUNO, mayor, casada, Licenciada en Comunicación, vecina de Cartago, Tres Ríos, portadora de la cédula de identidad 1-0931- 0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, mayor, soltero, Ingeniero Informático, vecino de San José, Central, portador de la cédula de identidad 1-0548-0407, RICARDO CALDERÓN VALVERDE, mayor, casado, Investigador, vecino de San José, Pérez Zeledón, portador de la cédula de identidad 9-0098-0557, RICARDO GARCÍA MOLINA, mayor, soltero, Contador, vecino de Cartago, La Unión, portador de la cédula de identidad 4-Ol70-0018, RITA CASTRO ABARCA, mayor, casada, Contadora, vecina de Cartago, La Unión portadora de la cédula de identidad 2-0456- 0750, RITA MARÍA QUIRÓS OBANDO, mayor, soltera, Analista en Sistemas, vecino de San José, Zapote, portador de la cédula de identidad 1-0758- 0598, ROBERTO CARLOS PÉREZ VARGAS, mayor, divorciado, Oficial de Investigación, vecino de Cartago, Oreamuno, portador de la cédula de identidad 1-0897-0374, ROBERTO HAMBELANT ZELEDON, mayor, casado, Abogado, vecino de Limón, Central, portador de la cédula de identidad 7-01 17-0903, ROBERTO LÓPEZ ESPINOZA, mayor, casado, Empleado Judicial, vecino de San José, Hatillo, portador de la cédula de identidad 1-0813-0303, ROCÍO PICADO VARGAS, mayor, divorciada, Administradora, vecina de San José, San Pedro, portadora de la cédula de identidad 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, mayor, soltero, Administrador, vecino de San José, Barrio México, portador de la cédula de identidad, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, mayor, divorciado, Técnico en Comunicaciones, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0235-9378, RODNEY GEORJANNY EARL BROWN, mayor, casado, Profesional en Derecho, vecino de Limón, Pueblo Nuevo, portador de la cédula de identidad 1-0930-0027, RODRIGO CAMPOS ESQUIVEL, mayor, casado, Abogado, vecino de Guanacaste, Liberia, portador de la cédula de identidad 1-0706-0332, RODRIGO CASTRO SOLIS, mayor, casado, Empleado Judicial, vecino de San José, Moravia, portador de la cédula de identidad 7-OIOI -0028, RODRIGO CHAVES CALVO, mayor, casado, Administrador, vecino de San José, Central, portador de la cédula de identidad 7-01 14-0365, RODRIGO HERNÁNDEZ OBANDO, mayor, divorciado, Abogado, vecino de San José, Central, portador de la cédula de identidad 1-0903-0505, ROELIS REYES PICHARDO, mayor, divorciado, Criminólogo, vecino de Cartago, Central, portador de la cédula de identidad 5-0273-0355, ROGER JIMÉNEZ FAJARDO, mayor, divorciado, Empleado Judicial, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0244-0772, ROGER ULISES CAMPOS MUÑOZ, mayor, casado, Empleado Judicial, vecino de San José, San Sebastián, portador de la cédula de identidad 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, mayor, casado, Custodio de Detenidos, vecino de Limón, Pococí, portador de la cédula de identidad 1-0538-0903, RONALD ABARCA SOLANO, mayor, casado, Abogado, vecino de San José, Central, portador de la cédula de identidad 3-0282-0138, RONALD SOLÍS JIMÉNEZ, mayor, casado, Empleado Judicial, vecino de San José, Escazú, portador de la cédula de identidad 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, mayor divorciada, Investigadora Judicial, vecina de San José, Curridabat, portadora de la cédula de identidad 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, mayor, soltera, Administradora, vecino de Heredia, San Joaquín, portador de la cédula de identidad 4-0125-0931, ROSE MARY LAWRENCE MORA, mayor, divorciada, Abogada, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, mayor, divorciada, Periodista, vecina de San José, Central, portadora de la cédula de identidad 1-0852-0854, ROSIBEL BRENES ALVARADO, mayor, divorciada, Administradora de Empresas, vecina de Heredia, San Rafael, portadora de la cédula de identidad 4-0162-0518, ROSIBEL BRENES REYES, mayor, casada, Secretaria, vecina de Heredia, Central, portadora de la cédula de identidad 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, mayor, casada, Administradora, vecina de San José, Desamparados, portadora de la cédula de identidad 1-0698-0291, ROXANA GÓMEZ BARQUERO, mayor, casada, Empleada Judicial, vecina de Cartago, Central, portadora de la cédula de identidad 9-0075-0148, ROXANA HIDALGO VEGA, mayor, soltera, Administradora, vecina de San José, Zapote, portadora de la cédula de identidad 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, mayor, soltera, Empleada Judicial, vecina de Alajuela, Central, portadora de la cédula de identidad 1-0652-0137, ROXANA MESÉN FONSECA, mayor, casada, Trabajadora Social, vecina de San José, Moravia, portadora de la cédula de identidad 1-0850-0833, ROY FERNANDO VARGAS NARANJO, mayor, casado, Abogado, vecino de San José, Desamparados, portador de la cédula de identidad 1-0919-0152, RUTH LORENA SABORIO NÚÑEZ, mayor, casada, Coordinadora Judicial 3, vecina de San José, Calle Blancos, portadora de la cédula de identidad 1- 097 1-0856, SABAS GARCÍA LEAL, mayor, casado, Investigador, vecino de San José, Alajuelita, portador de la cédula de identidad 5-0220-0011, SANDRA GÓMEZ AGUILAR, mayor, soltera, Secretaria, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 3-0262-0507, SANDRA PÉREZ OBANDO, mayor, casada, Empleado Judicial, vecina de San José, Guadalupe, portadora de la cédula de identidad 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, mayor, viuda, Investigadora, vecina de Guanacaste, Nicoya, portador de la cédula de identidad 5-O2 19-0232, SANTIAGO ALFONSO ARAYA GUTIÉRREZ, mayor, divorciado, Abogado, vecino de Heredia, Central, portador de la cédula de identidad 1-0826-0278, SAUL RETANA LÓPEZ, mayor, casado, Agente de Protección, vecino de San José, Desamparados, portador de la cédula de identidad 1-0630-0113, SEIDY JIMÉNEZ BERMUDEZ, mayor, soltera, Administradora, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, mayor, casado, Arquitecto, vecino de San José, Santa Ana, portador de la cédula de identidad 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, mayor, soltera, Empleada Judicial, vecino de Limón, Central, portador de la cédula de identidad 7-0105-0414, SHIRLEY AZOFEIFA JIMENEZ, mayor, casada, Perito Judicial, vecina de San José, Pérez Zeledón, portadora de la cédula de identidad 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, mayor, soltera, Administradora, vecina de Limón, Central, portadora de la cédula de identidad 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, mayor, soltera, Administradora, vecina de Alajuela. San Carlos, portadora de la cédula de identidad 2-0497- 0859, SHIRLEY ROJAS BARRANTES, mayor, soltera, Abogada, vecina de Guanacaste, Santa Cruz, portadora de la cédula de identidad 5-0240-0923, SHIRLEY VASQUEZ CASTAÑEDA, mayor, casada, Técnica judicial, vecina de Heredia, Central, portadora de la cédula de identidad 6-0234-0401, SILWA CASCANTE RUEDA, mayor, casada, Analista, vecina de Heredia, Barva, portadora de la cédula de identidad 6-0241-0939, SILVIA CHINCHILLA PORRAS, mayor, casada, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, mayor, divorciada, Secretaria, vecina de San José, Hatillo, portadora de la cédula de identidad 6-0260-0388, SILVIA EMILIA MORA JIMENEZ, mayor, casada, Técnica Judicial 2, vecina de Cartago, La Unión, portadora de la cédula de identidad 1-O79 1-0964, SILVIA ESPINOZA ACEVEDO, mayor, casada, Técnico Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, mayor, casada, Empleada Judicial, vecina de San José, Tibás, portadora de la cédula de identidad 1-0977-0164, SILVIA PALMA ELIZONDO, mayor, casada, Abogada, vecina de San José, Montes de Oca, portadora de la cédula de identidad 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, mayor, casada. Técnica Judicial, vecina de Puntarenas, Corredores, portadora de la cédula de identidad 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, mayor, divorciada, Empleada Judicial, vecino de San José, Central, portador de la cédula de identidad 1 0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, mayor, divorciada Asistente Administrativo, vecina de Limón, Central, portadora de la cédula de identidad 7-O09 1-0008, SONIA ISABEL GAMBOA ROJAS, mayor, casada Profesional 1, vecina de Alajuela, San Carlos, portadora de la cédula de identidad 2-0346-0839, SONIA RAMÍREZ THORPE, mayor, casada Coordinadora Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, mayor, casada Trabajadora Social, vecina de Cartago, La Unión, portadora de la cédula de identidad 5-0222-0182, STEVEN PICADO GAMBOA, mayor, soltero Administrador, vecino de Heredia, Central, portador de la cédula de identidad 1-0982-0768, SUGEY FONSECA PORRAS, mayor, divorciada Administradora, vecina de San José, San Sebastián, portadora de la cédula de identidad 1-1073-0434, SUGEY QUESADA VALERIN, mayor, casada Secretaria, vecina de Limón , Central, portadora de la cédula de identidad 7-0116-0302, SUSANA ALFARO SOTO, mayor, soltera en unión libre Laboratorista Química, Vecina de Alajuela, Sarchí, portadora de la cédula de identidad 1-0944-0249, TANIA MARÍA PÉREZ BARRANTES, mayor, casada, Ingeniera en Sistemas, vecina de San José, Montes de Oca, portadora de la cédula de identidad 1-0825-0973, TERESA JIMÉNEZ ROJAS, mayor, casada, Coordinadora Judicial 2, vecina de Puntarenas, Golfito, portadora de la cédula de identidad 6-0172-0033, TERESITA BOLAÑOS ROJAS, mayor, soltera, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 1-0685-0508, TONY ACUÑA PANIAGUA, mayor, soltero, Secretario, vecino de San José, Pavas, portador de la cédula de identidad 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, mayor, casado, Coordinador Judicial, vecino de Guanacaste, Liberia, portador de la cédula de identidad 5-0222-0486, VANESSA VILLALOBOS MONTERO, mayor, casada, Psicóloga, vecina de Alajuela, San Ramón, portadora de la cédula de identidad 2-0484-0081, VANLLY CANTILLO GAMBOA, mayor, soltera, Abogada, vecina de San José, Curridabat, portadora de la cédula de identidad 1-0874-0062, VERA VARGAS BARRANTES, mayor, divorciada, Técnica Judicial 2, vecina de San José, Central, portador de la cédula de identidad 1-0818-0806, VÍCTOR ADRIAN RODRÍGUEZ MÉNDEZ, mayor, casado, Técnico Administrativo 2, vecino de Heredia, Santa Bárbara, portador de la cédula de identidad 1- 0730-0506, VICTOR FERNANDEZ VARGAS, mayor, unión libre, Criminalista, vecino de Heredia, Santo Domingo, portador de la cédula de identidad 1-0889-0754, VICTOR HUGO CHAVES CHAVARRÍA, mayor, casado, Abogado, vecino de Guanacaste, Santa Cruz, portador de la cédula de identidad 2-0443-0030, VÍCTOR MANUEL AZOFEIFA MONGE, mayor, unión libre, Investigador, vecino de San José, Goicoechea, portador de la cédula de identidad 1-0703-0316, VICTORIA OVIEDO SOTO, mayor, casada, Psicóloga, vecina de Alajuela, Central, portadora de la cédula de identidad 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, mayor, casado, Abogado, vecino de San José, Montes de Oca, portador de la cédula de identidad 1-0642-0719, WAIMAN HIN HERRERA, mayor, casada, Administradora, vecino de San José, Aserrí, portador de la cédula de identidad 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, mayor, soltero, Auxiliar, vecino de San José, Hatillo, portador de la cédula de identidad 7-0082-0466, WALTER GONZALEZ FALLAS, mayor, soltero, Abogado, vecino de San José, Desamparados, portador de la cédula de identidad 1-0818-0248, W ALTER GUEVARA LARA, mayor, casado, Abogado, vecino de Cartago, El Tejar, portador de la cédula de identidad 6- 0180-0728, WILBERT KIDD ALVARADO, mayor, casado, Economista, vecino de Cartago, La Unión, portador de la cédula de identidad 4-0149-0623, WILLIAM ALEJANDRO PERALTA VILLALTA, mayor, casado, Contador, vecino de Heredia, Santo Domingo, portador de la cédula de identidad 1-0923-0060, WILLIAM CALDERÓN NAVARRO, mayor, soltero, Abogado, vecino de Puntarenas, Corredores, portador de la cédula de identidad 6-0212-0756, WILLIAM MATTHEWS SALAS, mayor, casado, Oficial de Investigación, vecino de Cartago, Turrialba, portador de la cédula de identidad 7-0084-0745, WILLIAM MORA DURAN, mayor, casado, Investigador, vecino de San José, Acosta, portador de la cédula de identidad 1-0621-0390, WILKIN PORRAS ALVAREZ, mayor, casado, Empleado Judicial, vecino de San José, Guadalupe, portador de la cédula de identidad 1-0772-0252, w1LMAR ANTONIO JIMÉNEZ DíAZ, mayor, divorciado, Técnico en Comunicaciones, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0023-0406, WILMAR PÉREZ BERMUDEZ, mayor, divorciado, Empleada Judicial, vecino de Guanacaste, Nicoya, portador de la cédula de identidad 5-0237-0488, XARY BRICEÑO ALVAREZ, mayor, divorciada, Administradora, vecina de San José, Zapote, portadora de la cédula de identidad 7-0085-0762, XINIA BARRIENTOS ARROYO, mayor, soltera, Secretaria, vecina de San José, Central, portadora de la cedula de identidad 1-0976-0204, XINIA MARIA ZAMORA OVARES, mayor, casada, Empleada Judicial, vecina de Cartago, Turrialba, portadora de la cédula de identidad 3-0294-0379, XINIA VEGA GUZMÁN, mayor, casada, Empleada Judicial, vecina de Cartago, Central, portadora de la cédula de identidad 3- 0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, mayor, soltera, Administradora, vecina de Cartago, Central, portadora de la cédula de identidad 1-0870-0973. YARMILA ULATE YOUNG, mayor. casada, Abogada, vecina de Puntarenas, Corredores, portadora de la cédula de identidad 1- 0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, mayor, divorciado, Custodio de Detenidos, vecino de San José, Central, portador de la cédula de identidad 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, mayor, soltera, Secretaria, vecina de Heredia, San Pablo, portadora de la cédula de identidad 1-0664-0089, YENSY CAMPOS BARBOZA, mayor, casada, Técnica Judicial, vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0293-0434, YESENIA MARIA MELENDEZ VARELA, mayor, soltera, Bibliotecóloga, vecina de Cartago, Oreamuno, portadora de la cédula de identidad 1-1404-0477, YESENIA PANIAGUA GÓMEZ, mayor, soltera, Psicóloga, vecino de San José, Zapote, portadora de la cédula de identidad 1-0845-0494, YESENIA ZAMORA BADILLA, mayor, soltera, Informática, vecina de San José, Central, portadora de la cédula de identidad 1-0991-0793, YORLENDA SPENCE THOMAS, mayor, soltera, Técnica Judicial, vecina de Limón, Central, portadora de la cédula de identidad 7-0103-0835, YORLENY CHING CUBERO, mayor, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 7-0119-0457, YORLENY FERRETO SOLANO, mayor, divorciada, Abogada, vecina de Heredia, Central, portadora de la cédula de identidad 4-0155-0255, YORLENY SALAZAR NARANJO, mayor, soltera, Abogada, vecina de San José, Ciudad Colón, portadora de la cédula de identidad 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, mayor, casada, Empleada Judicial, vecina de San José, Central, portadora de la cédula de identidad 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, mayor, casada, Abogada. vecina de Guanacaste, Liberia, portadora de la cédula de identidad 5-0262-0980 y YURLY ARGUELLO ARAYA, mayor, casada, Jefe de Proceso, vecina de Heredia, San Isidro, portadora de la cédula de identidad 1-0870-0756, y manifiesta que, de conformidad con lo dispuesto en los artículos 81 y 83 de la Ley de Jurisdicción Constitucional y dentro del plazo previsto en la resolución de las 13 horas 05 minutos del 22 de febrero de 2019, que dio curso a las acciones de inconstitucionalidad acu muladas a las acciones n° 19-007819-0007-CO, tramitadas en los expedientes números 18-008202-0007-CO, 18-008267- 0007-CO, 18-008292-0007-CO, 18-008591-0007-CO, 18-013217-0007-CO, 18-014168-0007-CO, 18-007820-0007-CO y 18-9275-0007-CO, interpuestas por Mario Alberto Mena Ayales, en su condición de Presidente de la Asociación Nacional de Empleados Judiciales; Juan Carlos Sebiani Serrano, en su condición de Presidente de la Asociación Nacional De Profesionales del Poder Judicial, Hernán Campos Vargas, en su condición de Secretario Genera] del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (Sitrajud); Yesenia Paniagua Goméz, en su Calidad de Presidenta de la Asociación de Profesionales en Psicología del Poder Judicial; Alvaro Rodríguez Zamora, en su condición de Presidente del Sindicato Asociación de Investigadores en Criminalística y Afines, Johnny Mejías Ávila, en su condición de Presiden te del Consejo de Administración y Óscar Enrique Umaña Chacón, en su condición de Gerente General, ambos de la Cooperativa de Ahorro y Crédito de Servidores Judiciales, Responsabilidad Limitada (Coopejudicial, R. L.), Damaris Molina González, en su condición de Presidenta de la Asociación Nacional de Jubilados y Pensionados del Poder Judicial; Jorge Luis Morales Garcia, en su condición de Secretario General del Sindicato de la Judicatura (Sindijud); Ana Luisa Meseguer Monge, en su condición de Presidenta de la Asociación Costarricense de Juezas; Carlos Álvarez Casasola, en su condición de Presidente de la Caja de Préstamos y Descuentos de los Empleados del Poder Judicial (Caprede), Adriana Orocú Chavarría, de forma personal y en su condición de Presidenta de la Asociación Costarricense de la Judicatura; Ingrid Fonseca Esquivel, Freddy Arias Robles, German Esquivel Campos, Yerma Campos Calvo, Maribel Bustillo Piedra, Pedro Valverde Díaz, Juan Carlos Cubillo Miranda, Maykel Coles Ramos, Alonso Hernández Méndez, Ana Lucía Vásquez Rivera, Estrella Soto Quesada, Mario Alberto Sáenz Rojas, Paula Esmeralda Guido Howell, Danilo Eduardo Ugalde Vargas, en su condición de apoderado especial judicial de Eduardo Sancho González, Rosa Iris Gamboa Monge, Magda Lorena Pereira Villalobos, Alejandro López Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Jorge Rojas Vargas, Álvaro Fernández Silva, Luis Fernando Solano Carrera, Alfredo Jones León, Rodrigo Montenegro Trejos, Alfonso Chaves Ramirez, Anabelle León Feoli, Ana Virginia Calzada Miranda, Eva María Camacho Vargas, Rafael Ángel Sanabria Rojas, Mario Alberto Houed Vega, Rolando Vega Robert, Adrián Vargas Benavides y Oscar Luis Fonseca Montoya, se apersona a interponer COADYUVANCIA ACTIVA, dentro del plazo de ley conferido, por contar sus representados con asuntos pendientes a la fecha de la interposición de las acciones dichas, además de contar TODOS con interés legítimo, por la aplicación automática del Transitorio VI, contenido en la Ley n° 9544, Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley n° 7333, Ley Orgánica del Poder Judicial, de 05 de mayo de 1993 y sus reformas, esto por contar todos con más de VEINTE AÑOS DE COTIZACIÓN al Fondo de Jubilaciones y Pensiones del Poder Judicial. Argumenta que se coadyuva en las acciones cursadas pues la Ley No. 9544, su procedimiento de aprobación dentro del expediente No. 19.922 y específicamente el Transitorio VI, contenido en dicha ley, resulta contraria a lo dispuesto en los Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, artículo 26 de la Convención Americana de Derechos Humanos, artículo 14 del Pacto Internacional de Derechos Civiles y Políticos, artículo 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 9, ll, 18, 27, 28, 33, 34, 40, 41, 45, 50, 51, 65, 73, 74, 121, 152, 154, 156, 167, 177, 188, 189 y 190 siguientes y concordantes de la Constitución Política de Costa Rica, artículos 29, 30 y 31, 33, 35, 38, 44, 45, 46, 49, 50, 51, 53, de la Ley de Jurisdicción Constitucional, lo cual considera que es así con fundamento en lo siguiente. Como bien se indica en las acciones cursadas, las disposiciones y actuaciones de la Asamblea Legislativa, han dado origen a que se promulgue una Ley inconstitucional, precedida de un procedimiento parlamentario nulo. Por su parte, aduce que el Consejo Superior del Poder Judicial, mediante sus actos administrativos, puso en ejecución una ley inconvencional e inconstitucional y actuar sin tener la competencia para la aplicación de las competencias que se establecen en dicha ley, hace que se esté en presencia de inconstitucionalidades y transgresiones a los derechos y libertades fundamentales de los accionantes y de sus representados, tal y como lo señala el artículo 29 de la Ley de Jurisdicción Constitucional. Señala que se coadyuva a las acciones planteadas pues, en su criterio, la Ley 9544 es contraria a los Convenios 102, 118, 128 y 157 de la Organización Internacional del Trabajo, artículo 26 de la Convención Americana de Derechos Humanos, artículo 14 del Pacto Internacional de Derechos Civiles y Políticos, artículo 9 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 9, 11, 18, 27, 28, 33, 34, 40, 41, 45, 50, 51, 65, 73, 74, 121, 152, 154, 156, 167, 177, 188, 189 y 190 siguientes y concordantes de la Constitución Política de Costa Rica, artículo 208 bis del Reglamento de la Asamblea legislativa, así como a los principios Democrático, de Igualdad, Publicidad, Solidaridad, Seguridad Jurídica, Buena Fe, Confianza Legítima, Transparencia, Intangibilidad Relativa del Patrimonio, No Confiscatoriedad, Respeto a los derechos adquiridos y situaciones jurídicas consolidadas, conforme se expondrá. Aduce que hay razonamientos de inconstitucionalidad de forma y fondo. Manifiesta que, en cuanto al procedimiento, hay inconstitucionalidad en la publicación por haberse publicado un texto distinto del que fue aprobado. Indica que, como bien señalan los accionantes, el texto sustitutivo aprobado en la Comisión Dictaminadora del Expediente Legislativo No. 19.922 el 13 de septiembre del 2016, fue publicado en la Gaceta y consultado oportunamente al Poder Judicial; sin embargo, ese texto no fue el que se aprobó en primer debate por la Asamblea Legislativa el 30 de octubre de 2017, ni el que fue publicado en la Gaceta N° 268 del 9 de noviembre de 2017. Aduce que la anterior actuación de la Asamblea Legislativa es contraria a la moción aprobada a la luz del 208 bis del reglamento de la Asamblea Legislativa y, en consecuencia, contrario al derecho de la Constitución, pues no se observaron los procedimientos mínimos que requiere un procedimiento parlamentario especial como el que se siguió en el caso del expediente dicho. Señala que la ausencia de publicación del texto aprobado, trae consigo una violación al procedimiento legislativo que vicia de inconstitucional la Ley aprobada. Véase que dentro del procedimiento establecido para la aprobación de la Ley n° 9544 se dispuso expresamente: "h.- Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutiva o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes" (resaltado no es del original). Argumenta que del expediente 19922 es claro que, el texto aprobado, difiere sustancialmente de los publicados, por lo que, de acuerdo a la norma antes transcrita, era necesaria la publicación correspondiente a fin de dar certeza y garantía al Principio de Publicidad y de Participación, que se vieron vulnerados con la actuación de la Asamblea Legislativa, de aprobar una norma con vicios legislativos de inconstitucionalidad. Sobre el tema, el voto salvado de la sentencia N° 2018-005758, de las 15:40 horas del 12 de abril de 2018, dictada dentro de la Consulta Legislativa Facultativa de Constitucionalidad, dispuso: 'Ningún otro texto actualizado fue publicado ya que, ni la Comisión respectiva tomó ningún acuerdo para solicitárselo al Directorio Legislativo, ni lo hizo así la Presidenta de la Comisión propiamente. Por otra parte las mociones de orden en el Plenario Legislativo tendientes a aprobar su publicación, fueron sistemáticamente rechazadas por la mayoría de los señores y señoras diputadas, por todo lo mencionado no se llevó a cabo dicha publicación". Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original. Indica que, al no haberse observado, de forma estricta, el procedimiento especial establecido vía artículo 208 bis del Reglamento de la Asamblea Legislativa en la tramitación del proyecto de ley en consulta, por haberse omitido la publicación del texto sustitutiva del proyecto de ley en consulta aprobado por la Comisión Especial en sesión del 23 de setiembre de 2016, se incurrió en un vicio esencial en el procedimiento legislativo de formación de la ley, con violación del principio democrático y de publicidad, sin que la sustitución, en definitiva, de dicho texto, pueda convalidar el procedimiento. Manifiesta que en la nota separada de ese mismo voto, se dijo: “En este contexto, no puede ignorarse que la moción que norma el procedimiento de aprobación del proyecto consultado, señala que se debe publicar en caso de que haya un texto sustitutivo. Por lo tanto, se trató en esta hipótesis de una transgresión a lo indicado en la moción que norma el procedimiento (por lo demás, por tratarse de la aplicación del artículo 208 bis hace que dicha moción haga las veces de normas reglamentarias en ese proyecto en concreto), siendo que cualquier tipo de publicación normada, es un requisito esencial” (resaltado no es del original). Indica que, de esta manera, en el razonamiento de los Magistrados que disintieron del voto de mayoría, se señaló que, por tratarse de un procedimiento legislativo abreviado, con mayor rigor debe respetarse el principio de Publicidad ya mencionado. Aduce que, al estar en presencia de un procedimiento con dispensas del ordinario constitucional, no puede en ninguna medida utilizarse la figura de la convalidación o saneamiento, menos respecto de un requisito tan importante como la publicidad ante lo omisión que ocurrió en el expediente 1992, pues no solamente se omitió la publicación de unas normas que no variaban la esencia del proyecto, sino que se omitió totalmente el texto convertido en ley, lo que vicia de inconstitucional la Ley No. 9544, por no observarse los principios constitucionales que rigen el procedimiento parlamentario y el artículo 208 bis del Reglamento de la Asamblea Legislativa, así como el numeral 121 constitucional. Manifiesta que, en todo caso y aunque se quisiera pretender, aplicar la tesis del saneamiento y la convalidación, en este supuesto, se torna de imposible presencia, pues no se puede subsanar el vicio -por el hecho de publicar el texto sustitutivo después de ser aprobado en primer debate-, porque a fin de cumplir con el Principio de Publicidad, se debe permitir a todos los costarricenses conocer el proyecto de ley, cuando todavía es proyecto y no cuando ya cuenta con un primer debate, lo cual ha sido reconocido por la propia Sala Constitucional, cuando en su pronunciamiento N° 2005-398, de las 12 horas 10 minutos del 21 de enero de 2005, reiteró su posición al analizar esa Sala, el proyecto de ley denominado "Ley de Solidaridad Tributaria" y en su fallo N° 2012-004621 de las 16:00 horas del 10 de abril de 2012, indicó:

“Este Tribunal Constitucional advierte que cuando la Asamblea Legislativa vía moción de orden del artículo 208 bis del Reglamento, crea un procedimiento especial, la aplicación y observancia de éste debe ser absolutamente rigurosa g estricta. El procedimiento especial creado a través del artículo 208 bis. como tal, es una excepción a las reglas de los procedimientos legislativos ordinarios que es consentida por una mayoría calificada, pero, como tal será, siempre, una excepción. El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado, evita cualquier infracción a los principios de la seguridad jurídica Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa.

(…)

Consecuentemente, de la lectura del contenido de las mociones de fondo aprobadas en la comisión especial, este 'Tribunal Constitucional estima, por unanimidad, que hubo un vicio esencial del procedimiento legislativo de carácter evidente y manifiesto que quebrantó los principios de publicidad y de igualdad al omitirse su publicación, dado que, en conjunto, provocaron una modificación sustancial del texto original (resaltado nuestro)".

Más recientemente, reiteró su criterio en el fallo n° 2017-19636 de las 9:15 horas del 06 de diciembre de 2017, de la siguiente forma:

“En tal sentido, estas circunstancias y la obligación de publicar los proyectos de ley está contenido en el principio de publicidad que debe servir como vector de legitimidad de todo órgano representativo de la soberanía popular.

(…)

Ahora bien, la jurisprudencia de esta Sala ha sido decisiva al asignarle un peso importante al principio de publicidad como un requisito sustancial dentro del trámite legislativo, en lo que se refiere a la ley ordinaria y a la enmienda constitucional (…)".

Observen señores Magistrados, que el texto no publicado y que se convirtió en la Ley n° 9544, variaba aspectos como edad de retiro, años de servicio, aporte obrero, años de servicio, el espacio transitorio, entre otros, de ahí la necesidad imperiosa de cumplir el requerimiento de la publicidad, pues todos esos son aspectos que guardan un claro interés público, por encontrarse en discusión, recursos públicos del Poder Judicial y, sin embargo, sin justificación alguna, no fueron debidamente comunicados a la población en general y en particular a la población judicial. Señala que se está ante infracciones al procedimiento legislativo que devienen en la inconstitucionalidad de la ley n° 9544; ley inconstitucional lo que ha generado que a sus representados se les violen sus derechos fundamentales a una jubilación digna, proporcional y razonable, de acuerdo su proyecto de vida y su contrato de trabajo, por lo que se solicita declarar con lugar las acciones de inconstitucionalidad cursadas, por las violaciones cometidas por la Asamblea Legislativa, en el procedimiento de aprobación que la ley de reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial. Agrega que también hay vicios de constitucionalidad en la publicación, por haberse aprobado un texto distinto al consultado, ello por cuanto, el texto finalmente aprobado, no fue consultado al Poder Judicial, conforme lo estatuye el artículo 167 de la Constitución Política. Añade que se desprende del expediente legislativo, que el proyecto votado en primer debate contenía cambios sustanciales, tales como aporte obrero, edad de retiro, años de servicio, funciones sustraídas al Consejo Superior, disposiciones transitorias, entre otros, respecto del proyecto dictaminado por la Comisión y que fue el último consultado al Poder Judicial, el 27 de julio de 2017; por tanto ese proyecto votado resulta ser un texto sustitutivo introducido mediante moción y no fue debidamente consultado a Corte Plena contraviniendo con ello lo establecido en el artículo 167 constitucional, de manera que, en su criterio, no es correcto afirmar que la Corte Suprema de Justicia si fue consultada del proyecto que terminó en ley de la República, pues el texto último consultado, fue el dictamen afirmativo de la Comisión correspondiente, pero sufrió los cambios ya señalados. Señala que, lo anterior, trae consigo un necesario análisis de las implicaciones constitucionales contenidas en el ordinal 167 ya dicho y la grave transgresión que significa la ausencia de la consulta al Poder Judicial, respecto del proyecto ya ley N° 9544. Agrega que hay violación a lo dispuesto en el artículo 167 de la Constitución Política, lo cual considera que es otro de los vicios más graves que enfrenta la aprobación de la ley 9544, violatoria de los derechos humanos de sus representados, toda vez que ese numeral fue inobservado, el cual establece:

“Para la discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial, deberá la Asamblea Legislativa consultar a la Corte Suprema de Justicia; para apartarse del criterio de ésta, se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea” (resaltado no es del original).

Considera que, de la norma transcrita, se rescatan los siguientes aspectos de suma relevancia para esta acción: el precepto constitucional es claro en indicar que deberán consultarse, es decir, no es una labor facultativa sino preceptiva de la Asamblea Legislativa, la consulta al Poder Judicial de todos aquellos proyectos que tengan relación con su organización o su funcionamiento, de lo cual se desprende que no solamente deben consultarse aquellos proyectos que tengan relación con el funcionamiento específicamente en la administración de justicia del Poder Judicial, sino también con todo lo que tenga que ver con su organización y no únicamente con su desempeño en la judicatura, pues la norma no hace tal distinción. Añade que también es importante rescatar de este articulado, que para poder separarse del criterio del Poder Judicial (el cual deviene en vinculante para este tipo de proyectos), la Asamblea Legislativa requerirá el voto a las dos terceras partes de sus miembros, sea, de mayoría calificada. Indica que ello lleva al estudio del correcto entendimiento entre la organización o el funcionamiento del Poder Judicial cuando se está en presencia de la consulta preceptiva establecida en el artículo 167 de la Constitución Política. Señala que el proyecto contenía normas que tienen relación directa con la organización del Poder Judicial; reforma organizativa que involucra no solo al sector de la Judicatura sino al ámbito Auxiliar de Justicia y a todo el aparato administrativo que le da soporte a la Administración de Justicia del país, pues véase que se eliminan funciones a la Corte Plena, al Consejo Superior, a la Dirección Ejecutiva, a la Auditoría, la Dirección de Gestión Humana y al Departamento Financiero Contable todos del Poder Judicial, para crear una Junta Administradora del Fondo como órgano del Poder Judicial y sobre el cual no tiene ninguna competencia la Corte Plena como instancia superior del Poder Judicial. Manifiesta que no es correcto afirmar que únicamente se deben consultar proyectos relacionados a las funciones y competencias del Poder Judicial, pues del texto constitucional se desprende la letra "o" como una conjunción disyuntiva, que hace una separación entre los dos vocablos "organización" y "funcionamiento" y los torna excluyentes y alternativos uno de otro. Estima que, de esta manera no debe analizarse el funcionamiento del Poder Judicial como el único aspecto tutelado por el artículo 167 de la Constitución Política, sino que la norma constitucional contempló los dos supuestos; entonces, debe consultarse el proyecto de ley tanto cuando se refiere a aspectos organizativos que incluyan cuestiones internas y administrativas del Poder Judicial, como también aquellas funciones que quieran regularse o competencias que devengan de nuevas reformas legislativas. Indica que de esta forma lo entendió la minoría de los Magistrados que en su voto salvado de la sentencia n° 2018-005758, de las 15:40 horas del 12 de abril de 2018, se refirieron al tema de la siguiente forma:

"Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva n i del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término funcionamiento" -del binomio "organización o funcionamiento"- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República" (Resaltado no es del original).

Además de lo dicho, indica que se señala en ese pronunciamiento que el concepto de organización del Poder Judicial no ha sido desarrollado por la Sala Constitucional y no debe confundirse el puro funcionamiento que si ha sido objeto de análisis por parte de ese Tribunal Constitucional. Aduce que, en este escenario, es claro que lo que debe analizarse por la Sala Constitucional, que es lo relativo a la parte organizativa del Poder Judicial que se está viendo afectada por la entrada en vigencia de la Ley 9544 y que en atención a regular aspectos propios de la organización del Poder Judicial, se requiere la consulta preceptiva regulada en el artículo 167 de la Constitución Política que, como bien ya se indicó, no hace diferencia entre aspectos de funcionamiento o de organización del Poder Judicial, sino que contempla los supuestos de manera independiente y de encontrarse ante proyectos de ley que se refieran e involucren tanto el funcionamiento como la organización, se requiere la consulta previa que se echa de menos en este asunto. Señala que en abono de esta tesis conviene transcribir un extracto del voto salvado ya indicado:

"Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó la consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 1671 de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial. las particularidades de la función jurisdiccional frente a la función meramente administrativa, aun cuando los jueces y los auxiliares judiciales sean también funcionarios públicos" (resaltado no es del original).

En todo caso, argumenta que este Tribunal Constitucional, en el voto de mayoría de la Consultativa Facultativa Legislativa ya mencionada, tampoco desconoce que, aspectos administrativos forman parte del funcionamiento del Poder Judicial, como es este caso del Fondo de Jubilaciones y Pensiones del Poder Judicial, que forma parte del fuero interno de cada despacho judicial. En esa sentencia la Sala mencionó:

"De la discusión precedente, así como del texto de la norma recién transcrita, es dable precisar aún más las condiciones dentro de las cuales no se puede trasladar un proyecto de ley a una de las comisiones legislativas plenas. En efecto, los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial', donde el término “Funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados de manera que es errado pensar, que únicamente se tenga que realizar esta consulta, cuando se esté estrictamente ante cuestiones procesales" (resaltado nuestro).

Y en su pronunciamiento número 2008-5179 de las 11:00 horas del 4 de abril del 2018, se refirió conforme se transcribe:

“La mayoría de este Tribunal Constitucional estima que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea o modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas".

Argumenta que, las transcripciones anteriores reflejan que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no solo lo concerniente a la afectación directa o indirecta, de la función jurisdiccional, obliga a la Asamblea Legislativa a plantear la consulta en los términos expresados en el artículo 167 de la Constitución Política. Esto por ser una derivación natural no solo del artículo 167, sino porque otras normas constitucionales como lo son los numerales 9, 154 y 177 de la Carta Magna, tutelan la independencia judicial. Añade que, aclarada la cobertura del artículo 167 constitucional, es evidente que la Asamblea Legislativa omitió efectuar la respectiva consulta al Poder Judicial, sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que se incurrió en una violación al deber impuesto en el precepto constitucional y en consecuencia, el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado, lo anterior por cuanto el Fondo de Jubilaciones y Pensiones del Poder Judicial, es una parte intrínseca de su actividad funcional y organizativa. Señala que la génesis y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial data de los años 30, cuando los legisladores preocupados por la estabilidad presupuestaria social y política que requería el Poder Judicial, pensaron en que uno de los extremos necesarios para obtener tal seguridad, era que los funcionarios judiciales, pudieran contar con un futuro posterior a su trabajo, que les permitirá asegurar una vida digna acorde a lo que cada funcionario judicial brindó al servicio del país, dada su labor tan sensible para la institucionalidad costarricense, siendo por ello, que el Fondo, responde a criterios de estabilidad, independencia, preparación e idoneidad; forma parte del contrato de trabajo de cada servidor judicial y es una forma de incentivar que personal calificado, labore para la institución, con el objeto de promover la permanencia de un personal formado y capacitado, por lo que la disminución del goce jubilatorio representa un desestímulo para el ingreso de personas profesionales valiosas que, atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral, siendo que, de esta forma lo entendió la Corte Plena cuando en su sesión n° 27 del 7 de agosto del 2017, artículo XXX, cuando se refirió a la consulta realizada por la Asamblea Legislativa, indicando :

"Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse. La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales - irrenunciables- asociados a toda persona trabajadora quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar Junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial" Agrega que la misma Sala Constitucional ha visualizado el Fondo de Jubilaciones y Pensiones del Poder Judicial como parte de la estructura y el funcionamiento del Poder Judicial, formando una parte interna de la institución, de cada persona servidora judicial, de su proyecto de vida y de sus familias y en ese sentido véase lo dicho en la sentencia n° 2018-005758, de las 15:40 horas del 12 de abril de 2018:

"Lo que está claro es que la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial (…)” Indica que, de esta manera, siempre, desde su creación, el Fondo fue concebido dentro del proyecto de vida de todas las personas servidoras judiciales, pues la existencia del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, es un elemento que promueve la permanencia de un personal formado y capacitado en la institución. Argumenta que, siendo claro que el Fondo de Jubilaciones y Pensiones del Poder Judicial, es un elemento intrínseco del contrato de trabajo y de la expectativa a futuro que tiene cada persona servidora judicial y sus familias, se constituye como un elemento interno de la organización del Poder Judicial y como tal debió preceptuarse la consulta constitucional ya estudiada. Considera que una modificación tan drástica sufrida, con nulidades en el procedimiento legislativo únicamente puede venir en el acogimiento de este recurso por las violaciones a los derechos fundamentales de sus representados. Indica que, esto aunado a la inconstitucionalidad devenida por la falta de mayoría calificada con la que se votó el proyecto de ley n° 19922, hace que la Ley 9544 sea violatoria de los derechos fundamentales de las personas servidores judiciales pues no se contó con las dos terceras partes de los miembros de la Asamblea Legislativa para su aprobación. En este sentido señala que hay ausencia de mayoría calificada para separarse del criterio vinculante del Poder Judicial y proceder con la aprobación de la ley; criterio de la Corte Suprema que fue negativo en tres ocasiones en que fue consultado acerca del proyecto de ley de reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial, siendo la Corte enfática en indicar su posición negativa respecto de tal reforma, lo que de manera automática, obligaba a la Asamblea legislativa, a promulgar la ley 9544 con el requisito de la mayoría calificada, es decir, que aquellas votaciones se realizaran con al menos dos terceras partes de los votos de los 57 Diputados y Diputadas de la Asamblea Legislativa; sin embargo, como se desprende del expediente legislativo, la votación en primer debate del proyecto no alcanzó el total de las dos terceras partes de los y las Diputadas. Añade que el artículo 208 bis del Reglamento de la Asamblea, establece que los únicos proyectos sometidos a un procedimiento abreviado y especial, que pueden ser votados con una mayoría simple, son aquellos respecto de los cuales, no se tenga una consulta preceptiva negativa; escenario que no acaece en la especie, pues la inconstitucionalidad y violación a los derechos humanos de sus representados, se ha dado porque a la Ley 9544, se le aplicó el artículo 208 bis del Reglamento de la Asamblea, previsto únicamente para asuntos cuya votación requerida es la mayoría simple, sin advertir que, en este asunto, se requería de una votación adoptada por mayoría calificada, por haber manifestado Corte Plena criterio negativo acerca del proyecto. Indica que, del expediente legislativo 19922 se desprende claramente que no se cumplió en ninguna de las dos votaciones con la mayoría calificada que establece la Constitución Política como obligatoria en este tipo de supuestos. Así en el primer debate que se dio en la sesión extraordinaria n° 14 del 30 de octubre del 2017, el Plenario aprobó el dictamen afirmativo rendido por la Comisión Especial, con 31 votos a favor y 7 en contra; y en el segundo debate, que se hizo en la sesión ordinaria n° 163 del 19 de abril del 2018, se aprobó con 34 votos a favor y 9 en contra, a pesar de que lo requerido era 38 votos a favor para cumplir con la observancia constitucional. Considera que es evidente que en el proceso de formación de leyes, se quebrantó la necesidad de contar con mayoría calificada en la votación, de acuerdo al artículo 167 constitucional, y por ende esta gestión debe ser declarada con lugar. Añade que otra de las vejaciones dentro del procedimiento legislativo seguido en el expediente 19922 y posterior Ley n° 9544, es la transgresión al artículo 9 constitucional que contempla el Principio de Independencia de Poderes. Recuerda que la Sala ha señalado que es parte de la independencia judicial el que las personas servidoras judiciales tengan una suficiencia económica digna. En la sentencia n° 2018-005758 de las 15:40 horas del 12 de abril de 2018, ya citada, dijo ese órgano:

"En ese sentido fue un acierto del legislador, dotar de garantías e incentivos a la administración de justicia costarricense, porque sólo así podía materializarse el estado de derecho que surgió de la Segunda República, el cual dependería para su éxito, de un robusto régimen de legalidad y no ya -como se dijo-, de la fuerza de las armas, camino por el que habían optado la mayoría de los países del mundo, especialmente los latinoamericanos. Si no se respeta esto que ya se otorgó desde hace casi ochenta años, se violenta el Principio de Progresividad de los Derechos Humanos, artículo 26 de la Convención Americana de Derechos Humanos ".

Y en ese mismo fallo (voto n° 2008-5179), se continuó diciendo:

"En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establece en el artículo, 9 y 102 reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar; en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167 Constitucional.

(…)

Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la Independencia, en su doble vertiente, tanto de Poder Judicial en si mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. (…) Esto implica una función sumamente delicada y una gran responsabilidad la cual no podría llevarse acabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no puede haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De ahí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades ni en funciones, ni salarios, ni en los derechos jubilatorios".

Aduce que, de acuerdo con lo transcrito, es evidente que se le ha otorgado a Poder Judicial, a través de la Constitución Política, en los artículos 9 y 154, independencia y separación de poderes, por lo que cualquier proyecto que afecte su estructura y actividad, debe ser consultado obligatoriamente a esa institución. Añade que, en el caso concreto, la intromisión en la independencia del Poder Judicial por parte de la Asamblea Legislativa, lo constituye la creación de la Junta Administrativa del Fondo, establecida en los artículos 239 y 240 de la Ley 9544. Señala que la creación de una estructura en el Poder Judicial pero independiente de éste en todo sentido, que modifica las competencias y funciones tanto de la Corte Plena, como del Consejo Superior, se constituye en una intromisión a la independencia y separación de Poderes establecida en los artículos 9 y 154 de la Constitución Política. Señala que se quebrantó la independencia del Poder Judicial pese a que el Constituyente Originario dejó plasmada su intención de garantizarla, tanto a nivel presupuestario, como político y funcional, al promulgar normas como los artículos 9, 154, 167 y 177 de la Constitución Política, que fueron desconocidas por la Asamblea legislativa. Argumenta que, con el proceder violatorio y nulo de la Asamblea Legislativa al no realizar la consulta preceptiva establecido en el articulo 167 de la Constitución Política, se violentaron los principios de independencia y separación de poderes establecidos en los numerales 9 y 154 de la Constitución Política por lo que se solicita la Sala Constitucional, acoger esta gestión y declarar la inconstitucionalidad de la norma aprobada bajo el procedimiento absolutamente nulo ya dicho. Señala que el Fondo de Jubilaciones y Pensiones del Poder Judicial, no sólo es parte del régimen jubilatorio sino también del contrato de trabajo, por lo que hay modificación de éste para quienes durante 20 años o más han cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial, durante veinte años o más. Indica que sus representados están sufriendo la aplicación automática de una disposición transitoria tan severa y nunca antes aplicada a ningún grupo con situaciones jurídicas consolidadas en materia jubilatoria, y estima que esa norma representa un desestímulo para continuar laborando en la institución para profesionales valiosos que, atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral. Indica que sus representados hicieron un proyecto de vida dadas las condiciones de trabajo que les fueron ofrecidas y, que dentro de éstas, se encontraba el disfrute a una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial cuando se diera el cumplimiento razonable de años y edad, siendo ese momento en el que se podrían retirar con un ingreso digno, después de haber otorgado toda una vida productiva al servicio de la comunidad y del Poder Judicial, no siendo ahora razonable ni proporcional, que a pocos años de llegar al cumplimiento de requisitos establecidos por el legislador, éstos sean variados sin un estudio técnico que respalde la procedencia de las nuevas medidas a aplicar. Agrega que el Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la variación drástica del tiempo de servicio que tendrían que cumplir, aun y cuando ya no cuenten con las capacidades físicas e intelectuales que requiere la función judicial. Señala que la población judicial estaría ante una encrucijada donde, si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición en la cual, por la aplicación de una norma transitoria infundada arbitraria y sin el respaldo de un estudio técnico, se ve truncado el proyecto de vida de quienes depositaron su confianza legítima y su buena fe en la institución como patrono y en expectativa tener una jubilación digna a través del Fondo de Jubilaciones y Pensiones del Poder Judicial, para la cual han cotizado durante muchos años, dando un aporte significativo a su salario mensual, lo que implica una variación a las condiciones del contrato de trabajo que hace 20 años o más se pactaron entre los accionantes, sus representados y el Poder Judicial. Indica que el Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica pues se está ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida, de manera que el pasar de estar a poco tiempo de jubilarse, a que actualmente se les apliquen una decena o más de años pendientes de laborar, todo por la aplicación automática de una norma inconstitucional, es a todas luces arbitrario, irracional, desproporcional, violatorio de los principios de igualdad y de sostenimiento de las cargas públicas en perjuicio de los accionantes y de sus representados. Advierte que en el caso bajo estudio, no solamente se está en la discusión de un derecho a la jubilación, sino que la pertenencia y eventual goce de una jubilación con cargo al Fondo de Jubilaciones y Pensiones del Poder Judicial, forma parte del contrato de trabajo y de las condiciones laborales que en su momento se establecieron para sus representados, las cuales se han mantenido durante 20, 25 y 28 años de servicio, siendo contrario al derecho de la Constitución y de los derechos humanos, que reciban una modificación tan drástica como la que se estableció el transitorio VI de la ley 9544, por lo que sería contraria al derecho al trabajo y a la jubilación establecida en el artículo 73 de la Constitución Política, determinándose como derechos irrenunciables, por los cuales se ha expectado y se ha cotizado en buena parte del salario. Indica que por esa razón se solicita que se declare la inconstitucionalidad de dicha norma y se permita a quienes figuran en las acciones, así como a sus representados, poder jubilarse con las anteriores condiciones a dicha reforma, dada la cantidad de tiempo que han permanecido al régimen en cuestión, con determinadas condiciones contractuales. Indica que haciéndose un recuento de las modificaciones que se han dado a otros regímenes de pensiones en el país, se puede observar que nunca se había dado una modificación tan drástica como la que se ha dado a para las jubilaciones y pensiones de Poder Judicial, con la entrada en vigencia de la ley 9544. Argumenta que si bien se entiende que no existe un derecho a la inmutabilidad del ordenamiento jurídico, lo cierto es que en las reformas de otros regímenes, se han creado normas transitorias que han permitido la entrada en vigencia de aquéllas de forma razonada, escalonada y proporcional. Indica que todas las reformas legales a los regímenes jubilatorios hechos en Costa Rica, sean del primer pilar o de otros sustitutivos existentes en el país, han contado con normas transitorias que permiten una gradualidad en su aplicación, respetándose derechos adquiridos, situaciones jurídicas consolidadas y permitiendo el ingreso de la reforma a la población de forma que no se violen sus derechos fundamentales, argumentando que hasta la propia Ley Orgánica del Poder Judicial en el año de 1994, permitió una transitoriedad escalonada, respetuosa de los derechos humanos. Señala que solo la Ley 9544 es la que, de forma arbitraria y sin sustento técnico, establece un plazo mínimo de 18 meses para gozar de una jubilación bajo las condiciones anteriores a la entrada en vigencia de dicha ley; momento en el que prácticamente sólo tendrían derecho quienes estuvieran cercanos al cumplimiento de las condiciones jubilatorias, lo que se torna desproporcionado, irracional y sumamente gravoso para la esfera jurídica de los accionantes y puntualmente de sus representados. Añade que se vulnera el artículo 33 en cuanto a las modificaciones transitorias de la Ley impugnada respecto a los demás regímenes jubilatorios del país porque las personas que cuentan con más de 20 años de servicio, están en una situación desigual porque en otros regímenes, personas en iguales condiciones han tenido un transitorio escalonado que no se le otorgó a los servidores judiciales. Advierte que los servidores judiciales han pasado de tener una expectativa de jubilación pronta, a tener que laborar más de una década para recibir luego una jubilación que no responde ni a un 50% de su salario, a pesar de que hay cotizado por más de 20 años una suma cuantiosa de su ingreso salarial mensual. Considera que es completamente discriminatorio y violatorio de los derechos fundamentales, afectar directamente a una población tan vulnerable y con escasas fuentes de trabajo el país, pues debe tomarse en cuenta que por su edad y tiempo de servicio, ya no les resulta fácil buscar otras alternativas de trabajo. Indica que los trabajadores tienen derecho a una jubilación digna pero con los nuevos parámetros se está ocasionando un daño irreparable para los trabajadores judiciales, así como un quebranto a la constitucionalidad, porque se lesionan los derechos fundamentales a la igualdad, proporcionalidad y razonabilidad. Manifiesta que dentro del expediente legislativo no se comprobó que existiera un peligro a las finanzas del Fondo, el permitir que el grupo de personas que estuviera a 10 años o menos pudieran adquirir el derecho jubilatorio, por lo que el Transitorio VI se vuelve arbitrario y violatorio de los derechos de sus representados. Indica que Tribunales Constitucionales de otros países han reconocido el derecho a un tratamiento diferenciado que tienen las personas que se encuentran cercanas a adquirir los requisitos jubilatorios cuando se han dado modificaciones legislativas. Manifiesta que, si ya se cuenta con más de 20 años de servicio judicial, resulta difícil tomar la decisión de renunciar por la ampliación grosera de esos plazos y dada la gran cantidad de dinero que estas personas han invertido en el Fondo, pues fue incorporado a sus condiciones de trabajo como una expectativa a gozar de un futuro determinado que ahora se está variando sin ningún sustento técnico ni jurídico. Indica que por eso es necesario diferenciar mediante un transitorio las diferentes condiciones de las personas activas, y solicita a la Sala que se aplique derecho comparado y se asuma la posición de otros tribunales en atención al principio de progresividad de los derechos humanos. Señala que otra diferencia de tratamiento se ha dado en el Transitorio II en relación con los que laboran en el Tribunal Supremo de Elecciones a quienes se les declaró un derecho irrestricto de reconocimiento de sus condiciones jubilatorias, aún y cuando se está en presencia de normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos. Indica que de ese Transitorio se desprende el tratamiento desigual que se está dando, dentro de la misma ley, para con sus representados y los trabajadores del Tribunal Supremo de Elecciones, a los cuales si se les están respetando sus situaciones jurídicas y se les permite incluso el traslado a otro régimen jubilatorio mucho menos confiscatorio que el del Fondo del Poder Judicial. Señala que en vista de que el Transitorio VI resulta contrario al Principio de Igualdad consagrado en el artículo 33 de la Constitución Política, se solicita a la Sala, declarar la inconstitucionalidad de dicha norma transitoria y restablecer a los accionantes y a sus representados a una situación jurídica de igualdad, respecto de los otros grupos jubilatorios del país. Agrega que en cuanto al Transitorio VI no existe ningún fundamento jurídico que respalde el plazo de 18 meses otorgado como para la aplicación de la nueva Reforma; plazo que resulta irracional y antojadizo, en razón de que no existe ningún fundamento legal o un criterio técnico que lo respalde. Indica que se trata de un cambio radical a las condiciones laborales con las que sus representados se suscribieron como servidores del Poder Judicial. Recuerda que Costa Rica, por ser un Estado de Derecho, y la seguridad jurídica es el medio de cobertura de las necesidades sociales, económicas e individuales; es la confianza otorgada por todos los ciudadanos para que sean aplicadas las normas, y que sean válidas y conforme a Derecho, y no como la Reforma al Fondo de Pensiones que además de ser inconstitucional, no respeta los principios básicos del Estado de Derecho, razón por la cual plantea la inconformidad con la Ley 9544. Argumenta que el transitorio VI violenta el Principio de Seguridad Social y transgrede los derechos de sus representados pues se otorgó un plazo casi inexistente para la conservación de situaciones jurídicas consolidadas. Recuerda que, en reiteradas ocasiones la Sala Constitucional ha indicado la posibilidad de modificar el derecho jubilatorio pero en condiciones proporcionadas, y no como en este caso al fijarse un plazo transitorio antojadizo, bajo ningún fundamento jurídico ni técnico. Reconoce que la Sala ha señalado que el derecho a la jubilación no es irrestricto ya que puede ser sometido a determinadas limitaciones, pero también indicó en su sentencia n° 5758-2018, que estas variaciones eran permitidas siempre y cuando sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial, lo que, en su criterio, a todas luces, no se respeta en el caso concreto toda vez que la ley N° 9544 cambia esencialmente todas las condiciones jubilatorias a las que tenían derecho algunos de los accionantes y sus representados, pues tenían una expectativa durante muchos años y ahora cambian las condiciones de tiempo servido, de salario, de aporte de cotizaciones forzosas, cambia sustancialmente el ingreso que se tendría por concepto de jubilación y sobre todo, cambia el tiempo de servicio faltante a pesar de que la mayoría cuenta con más de 25 años de servicio para la institución. Recuerda que estas modificaciones jubilatorias se incorporan mediante una ley que está viciada de inconstitucionalidad, que tiene vicios en su procedimiento legislativo, por lo que no puede tomarse en cuenta como medio legal para la incorporación de tales modificaciones jubilatorias. Manifiesta que, respetuosamente se hace ver a la Sala, que no es correcta la afirmación de que la norma transitoria cuestionada no resulta inconstitucional por haberse fijado en parámetros y requerimientos, a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19922, pues en realidad no existe un sustento técnico dentro del expediente que determine que el plazo razonable y necesario para la variación de las condiciones jubilatorias sea de 18 meses, de manera que no teniendo un sustento técnico la norma transitoria VI, se convierte en una norma inconstitucional por no cumplir con parámetros objetivos de otorgamiento y de restricción de las condiciones jubilatorias de los accionantes y de sus representados. Manifiesta que se está ante la ausencia técnica de una norma transitoria que introduce las nuevas condiciones jubilatorias aprobadas por la Ley n° 9544, de manera abrupta, no progresiva y en perjuicio de los derechos adquiridos y las situaciones jurídicas consolidadas. Señala que se está ante la ausencia de estudios técnicos que justifiquen un plazo de 18 meses como norma transitoria y la Organización Internacional de Trabajo ha indicado la necesidad de contar con el adecuado criterio técnico para poder realizar una variación en un régimen de pensiones. Indica que ese Transitorio es violatorio de los derechos humanos de quienes ya tenían un panorama muy cercano de jubilación y por ello pide que sea declarado de esa manera y que se otorgue a sus poderdantes y a los accionantes, el derecho a una jubilación digna. Indica que el Transitorio VI lesiona también la razonabilidad y la proporcionalidad y requiere ser ajustada a fin de tutelar los derechos fundamentales esta población judicial, pues es demasiado el perjuicio que se les impuso al pasar de unos meses, a más de diez años en la mayoría de los casos, para adquirir un derecho jubilatorio, que por demás, es ahora ruinoso, a pesar de haber cotizado durante tantos años al Fondo de Jubilaciones y Pensiones del Poder Judicial. Solicita que se resguarden los derechos a la jubilación, al trabajo, a la no confiscación e igualdad de sus representados, que se restablezcan sus derechos fundamentales y se declare la inconstitucionalidad de dicha norma, por no contar con el sustento técnico que requiere este tipo de restricciones legislativas. Señala que el artículo 26 de la Convención Americana de Derechos Humanos establece que los Estados Partes se comprometen a adoptar providencias, tanto a nivel interno como mediante la cooperación internacional, especialmente económica y técnica para lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales y sobre educación, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos, reformada por el Protocolo de Buenos Aires, en la medida de los recursos disponibles, por vía legislativa u otros medios apropiados. Aduce que esta norma encuentra una similar en el Protocolo a la Convención Derechos Económicos Sociales San Salvador que en el artículo 1 dispone que los Estados Partes en el presente Protocolo Adicional a la Convención Americana sobre Derechos Humanos se comprometen a adoptar las medidas necesarias tanto de orden interno como mediante la cooperación entre los Estados, especialmente económica y técnica, hasta el máximo de los recursos disponibles, y tomando en cuenta su grado de desarrollo, a fin de lograr progresivamente, y de conformidad con la legislación interín, la plena efectividad de los derechos que se reconocen en ese Protocolo. También indica que en el Protocolo Facultativo del Pacto Internacional de Derechos Económicos, Sociales y Culturales, Decreto Ejecutivo N° 38513-RE, en su artículo 2, señala que cada uno de los Estados Partes se compromete a adoptar medidas, tanto por separado como mediante la asistencia y la cooperación internacionales, especialmente económicas y técnicas, hasta el máximo de los recursos de que disponga, para lograr progresivamente por todos los medios apropiados, inclusive en particular la adopción de medidas legislativas, la plena efectividad de los derechos ahí reconocidos, así como también se comprometen a garantizar el ejercicio de los derechos que ahí se enuncian, sin discriminación alguna por motivos de raza, color, sexo, idioma, religión, opinión política o de otra índole, origen nacional o social, posición económica, nacimiento o cualquier condición social. Recuerda que, dentro de los derechos sociales se encuentra el derecho al trabajo -tutelado por la Constitución Política en el artículo 56- y con ello a una jubilación, la cual hace alusión a un derecho fundamental que le pertenece al trabajador por el simple hecho de ser persona y de haber cotizado para el régimen legalmente correspondiente, durante un periodo de tiempo. Señala que el derecho a la jubilación -protección de sobrevivencia- corresponde a un derecho de seguridad social que ha sido ratificado, no solo por diferentes instrumentos internacionales sino por normas jurídicas nacionales y que implica que, ya teniendo ciertas condiciones, éstas no pueden ser variadas en perjuicio de los derechos humanos de quienes ostentan el derecho o la situación jurídica consolidada. Manifiesta que el Estado costarricense tiene la obligación de respetar los derechos y situaciones jurídicas consolidadas del personal judicial, en especial de sus representados, de procurar el desarrollo progresivo de los derechos humanos y esto no se nota en la Ley 9544 que es completamente contrario a esos principios constitucionales. Considera que el Transitorio VI no es una norma progresiva de derechos humanos pues no respetó la enorme cantidad de años que han pertenecido y cotizado sus representados al régimen y cuyo beneficio debió haberse resguardado con un transitorio razonable, justo y sustentado en criterios técnicos y objetivos. Recuerda que la Sala se encuentra llamada a custodiar y tutelar los derechos fundamentales puesto que, sin tutela judicial o garantías procesales, no hay derechos fundamentales, por lo que pide que se proceda de esa forma para con sus representados, declarando con lugar las acciones interpuestas y declarando la inconstitucionalidad de la Ley No. 9544, especialmente del Transitorio VI. Añade que la Sala en otros temas ha ordenado al Estado costarricense aplicar y observar el principio de progresividad de los derechos humanos, por lo que solicita que así se aplique a quienes acuden a ese Tribunal con el fin de que se les restituya en el pleno goce de sus derechos fundamentales al trabajo, a la jubilación, a una vida digna, a la no confiscatoriedad y no se aplique el Transitorio VI por ser inconstitucional. Reitera la solicitud para que se declare con lugar las acciones acumuladas, se declare que el procedimiento de aprobación de la Ley 9544 tiene vicios de nulidad que hacen inconstitucional la normativa así como también que se declare la inconstitucionalidad de su Transitorio VI por ser represivo y no contar con sustento técnico que lo justifique.

162.- En resolución de las 9 horas 31 minutos del 10 de mayo de 2019, se resolvió, lo siguiente: “Vistos los escritos presentados en la Secretaría de esta Sala a las entre el 1° y el 12 de abril de 2019, por los cuales CRISIAM DIONISIA WONG VEGA, cédula de identidad 0107420019, ENRIQUETA ROJAS AGUILAR, cédula de identidad 0502230794, LIGIA VANESSA VÍQUEZ GÓMEZ, cédula de identidad 0108240057, ZULAY MARJORIE CAMPOS HERNÁNDEZ, cédula de identidad 0108360391, LUIS ROBERTO MADRIGAL ZAMORA, cédula de identidad 0107230460 en su condición de SECRETARIO GENERAL DEL SINDICATO DE LA DEFENSA PÚBLICA y KAROL MARÍA MONGE MOLINA, cédula de identidad 0110710254 en su condición de apoderada especial judicial de ADALGISA GUILLEN FLORES, portadora de la cédula de identidad 5-0210- 0201, ADOLFO SOTO MUÑOZ, portador de la cédula de identidad número 3- 0300-0050, ADRIÁN ARROYO ACOSTA, portador de la cédula de identidad, 1- 0903-0887, ADRIÁN COTO PEREIRA, portador de la cédula de identidad 3- 0307-0351, ADRIÁN RODOLFO BARQUERO MONGE, portador de la cédula de identidad 3-0339-0441, ADRIANA ÁLVAREZ BRICEÑO, portadora de la cédula de identidad, 1-0639- 0343, ADRIANA SOTO GONZÁLEZ, portadora de la cédula de identidad 1 -0844- 0124, ADRIANA STELLER HERNÁNDEZ, portadora de la cédula de identidad 1- 0803-0253, ALBA BARRIOS SALDAÑA, portadora de la cédula de identidad 7-0103- 0498, ALBERTH SOLANO ABARCA, portador de la cédula de identidad 1-0762-0577, ALBERTO MORA MORA, portador de la cédula de identidad 1-1023-0353, ALCIONI VÁSQUEZ RETANA, portador de la cédula de identidad 1-0643-0891, ALEJANDRA PÉREZ CORDERO, portadora de la cédula de identidad 1 -1030-0994, ALEJANDRO ALCIONE CASTRO LAO, , portador de la cédula de identidad 1-0836- 0068, ALEJANDRO FONSECA ARGUEDAS, portador de la cédula de identidad 1- 0771-0399, ALEJANDRO SOLANO ROJAS, portador de la cédula de identidad 1-0519-0729, ALEXANDER MIGUEL FONSECA PRADO, cédula de identidad 1-0779-0738, ALEXANDER PICADO GAMBOA, portador de la cédula de identidad 1-0935-0908, ALEXANDER TENORIO CAMPOS, portador de la cédula de identidad 5-0202-0075, ALEXANDER VIACHICA ESPINOZA, portador de la cédula de identidad 1-0777-0115, ALEXANDRA MADRÍZ SEQUEIRA, portadora de la cédula de identidad 1-0870-0450, ALEXANDRA MORA STELLER portadora de la cédula de identidad 2-0485-0404, ALEXANDRA VILLEGAS VELÁZQUEZ, portadora de la cédula de identidad 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, portador de la cédula de identidad 7-0103-0253, ALEYDA MOJICA MARÍN, portadora de la cédula de identidad 6-0229-0409, ALFREDO SALAZAR VENEGAS, portador de la cédula de identidad 1-0867-0065, ALICIA MELÉNDEZ LEIVA, portadora de la cédula de identidad 5-0238-0070, ALLAN CRUZ VILLALOBOS, portador de la cédula de identidad 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, portador de la cédula de identidad 2-0443-0555, ALMA CUNNINGHAM ARANA, portadora de la cédula de identidad 7-0066-0882, ALONSO ROMERO FALLAS, portador de la cédula de identidad 1-0860-0327, ÁLVARO ÁLVAREZ GUTIÉRREZ, portador de la cédula de identidad 5-0234-0995, ÁLVARO ENRIQUE GONZÁLEZ QUIRÓS, portador de la cédula de identidad 3-0334-0081, ÁLVARO JUSTO QUIRÓS SÁNCHEZ, portador de la cédula de identidad 1-0669-0209, ÁLVARO ORTUÑO MÉNDEZ, portador de la cédula de identidad 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, portadora de la cédula de identidad 1-0828-0553, ANA CRISTINA LIZANO RODRÍGUEZ, portadora de la cédula de identidad 1-0693- 0522, ANA ISABEL MOYA CHACÓN, portadora de la cédula de identidad 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, portadora de la cédula de identidad 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, portadora de la cédula de identidad 5-0248- 0978, ANA PATRICIA ROBLES MARTÍNEZ, portadora de la cédula de identidad 7- 0102-0421, ANA RUTH ORTEGA CHAVARRÍA, portadora de la cédula de identidad 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, portadora de la cédula de identidad 1-0745-0116, ANA SONIA FUENTES GÓMEZ, portadora de la cédula de identidad 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, portadora de la cédula de identidad 2-0496-0746, ANAIS CAROLINA BOLAÑOS ZELEDÓN, portadora de la cédula de identidad 1-0902- 0620, ANAYANCI RODRÍGUEZ QUESADA, portadora de la cédula de identidad 1-0734-0966, ANDREA SOTO DÍAZ, portadora de la cédula de identidad 4-0161-0797, ANDRÉS MÉNDEZ BONILLA, portador de la cédula de identidad 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, portador de la cédula de identidad 1-0779-0938, ÁNGELA ROBLES SIBAJA, portadora de la cédula de identidad 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNÁNDEZ, portador de la cédula de identidad, 7-0107-0369, ARMANDO AGÜERO ARAYA, portador de la cédula de identidad 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, portador de la cédula de identidad 3-0325-0085, ARMANDO EMILIO JIMÉNEZ VARGAS, portador de la cédula de identidad 6-0233-0378, ARSENIO MORA BARBOZA, portador de la cédula de identidad 1-0850-0664, ARTURO FAERRON MONTOYA, portador de la cédula de identidad 5-0247-0765, AURA YANES QUINTANA, portadora de la cédula de identidad 6-0209-0198, AUREA BARBOZA CASTILLO, portadora de la cédula de identidad 5-0233-0938, BERNY VALVERDE JIMÉNEZ, portador de la cédula de identidad 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, portadora de la cédula de identidad 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, portadora de la cédula de identidad 1-0747- 0521, BONN1E PATRICIA TORRES ROSALES, portadora de la cédula de identidad 1-0750-0985, BRENDA ALPÍZAR JARA, portadora de la cédula de identidad 1-0752- 0082, CARLOS ABRAHAM CAMPBELL, portador de la cédula de identidad 7-0098-0511, CARLOS AGUILAR ORTIZ, portador de la cédula de identidad 1-0706-0717, CARLOS ALBERTO CHACÓN CHINCHILLA, portador de la cédula de identidad 1-0865-0136, CARLOS ALBERTO QUESADA HERNÁNDEZ, portador de la cédula de identidad 7-0077-0276, CARLOS ARNOLDO BERMÚDEZ AGUILAR, portador de la cédula de identidad 1-0915-0817, CARLOS BERMÚDEZ CHAVES, portador de la cédula de identidad 1-0880-0378, CARLOS ENRIQUE TORRES ACUÑA, portador de la cédula de identidad 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, portador de la cédula de identidad 1-0748-0121, CARLOS FALLAS Solís, portador de la cédula de identidad 1-0851-0582, CARLOS GONZÁLEZ MARTÍNEZ, portador de la cédula de identidad 3-0279-0596, CARLOS HUMBERTO HERRERA SOLÍS, portador de la cédula de identidad 1-0837-0484, CARLOS LUIS CORRALES JIMÉNEZ, portador de la cédula de identidad 2-0428-0157, CARLOS LUIS FRUTOS VÁSQUEZ, portador de la cédula de identidad 6-0157-0030, CARLOS LUIS GARCÍA APARICIO, portador de la cédula de identidad 1-0860-0752, CARLOS LUIS GUTIÉRREZ BARQUERO, portador de la cédula de identidad 6-0164-0434, CARLOS LUÍS VÁSQUEZ MEDINA, portador de la cédula de identidad 7-0086-0146, CARLOS MONGE NAVARRO, portador de la cédula de identidad 6-0251-0166,CARLOS PORRAS MORERA, portador de la cédula de identidad 5-0247-0389, CARLOS VENEGAS AVILES, portador de la cédula de identidad 1-0899-0725, CARLOS ALBERTO PÁEZ RODRÍGUEZ, portador de la cédula de identidad 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, portador de la cédula de identidad 1-0903-553, CARMELINA TAYLOR TAYLOR, portadora de la cédula de identidad 7-0068-0562, CAROLINA CHACÓN MEJÍA, portadora de la cédula de identidad 1-0741-0425, CATALINA ESPINOZA SÁENZ, portadora de la cédula de identidad 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, portador de la cédula de identidad 6-0198-0289, CINTHIA MAGALY VEGA CÉSPEDES, portadora de la cédula de identidad 4-0161-0385, CHIREY TAPIA MARTINEZ, portadora de la cédula de identidad 1-0912-0363, CRISTIAN CORRALES RODRÍGUEZ, portador de la cédula de identidad 2-0473-0323, CRISTIAN GÓMEZ SOLÍS, portador de la cédula de identidad 3-0333-0388, CRUZ PORRAS BOLAÑOS, portadora de la cédula de identidad 5-0213-0606, DANIA ARIAS SANDOVAL, portadora de la cédula de identidad 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, portador de la cédula de identidad 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, portador de la cédula de identidad 1-0820-0013, DÉBORA RIVERA ROMERO, portadora de la cédula de identidad, 1-0702-0210, DELIA BAYLEY BLAKE, portadora de la cédula de identidad 7-0106-0462, DENIA ZÚÑIGA ROSALES, portadora de la cédula de identidad 5-0255-0075, DENNIS MADRIGAL QUESADA, portador de la cédula de identidad, 1-0772-0406, DERRIL VILLEGAS SALAZAR, portador de la cédula de identidad 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, portadora de la cédula de identidad 1-0844-0663, DIDIER JOSÉ MONTEALEGRE BEJARANO, portador de la cédula de identidad 1- 0998-0884, DIEGO RODRÍGUEZ ZUMBADO, portador de la cédula de identidad 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, portadora de la cédula de identidad 2-0403-0367, DINORAH FLORES VILLALOBOS, portadora de la cédula de identidad 1-0762-0614, DIXON LI MORALES, portador de la cédula de identidad 1-0839-0369, DONALDO BERMÚDEZ RODRÍGUEZ, portador de la cédula de identidad 6-0260-553, DONY DANIEL SOLANO ARAYA, 6-0270- 0431, DORIS ROJAS GUZMÁN, portadora de la cédula de identidad, 1-0760-0176, DYALA LINKIMER VALVERDE, portadora de la cédula de identidad 2-0394-0312, EDDIE JOSÉ DÍAZ SOLÓRZANO, portador de la cédula de identidad 5-0202-0075, EDDY JAVIER RODA ABARCA, portador de la cédula de identidad 1-0607-0953, EDGAR GERARDO MORA ROMERO, portador de la cédula de identidad 5-0294-0965, EDUARDO BRICEÑO CABALCETA, portador de la cédula de identidad 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, portador de la cédula de identidad 1-738-0392, EDUARDO FALLAS BRENES, portador de la cédula de identidad 1 -0588- 0355, EDUARDO GÓMEZ VARGAS, portador de la cédula de identidad 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, portador de la cédula de identidad 8-0066-0926, EDUARDO MOYA ROJAS portador de la cédula de identidad 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, portador de la cédula de identidad 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, portador de la cédula de identidad 2-0484-0865, EDWIN HERRERA CAMBRONERO, portador de la cédula de identidad 1 -0578-0466, EDWIN MATA ELIZONDO, portador de la cédula de identidad 1 -0801-0067, EIBOR PANIAGUA MARÍN, portador de la cédula de identidad, 3-0323-0494, EIDY ARAYA DÍAZ, portadora de la cédula de identidad 7-0080-0880, ELIAS APU VARGAS, portador de la cédula de identidad, 7-0088-0345, ELISANDRO TREJOS CHÁVES, portador de la cédula de identidad 1-0871-0722, ELIZABETH BOLAÑOS MENA, portadora de la cédula de identidad 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, portadora de la cédula de identidad 2-0505-0891, ELMER ORTIZ OBANDO, portador de la cédula de identidad 2-0513-0201, ELPIDIO CALDERÓN CHAVES, portador de la cédula de identidad 6-021 1-0169, ELVÍN VARGAS SALAZAR, portador de la cédula de identidad 6-0164-0923, EMILCE MILEIDY GARCÍA SOLANO, portadora de la cédula de identidad 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, portador de la cédula de identidad 1-0905-0693 EMMA LÓPEZ RAMÍREZ, portadora de la cédula de identidad 6-0300-0418, ERICK ANTONIO MORA LEÍVA, portador de la cédula de identidad 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, portador de la cédula de identidad 1-0990-0489, ERICK CASTRO ZAMORA, portador de la cédula de identidad, 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, portador de la cédula de identidad 1-0617-0454, ERICK LEWIS HERNÁNDEZ, portador de la cédula de identidad, 4-0157-0803, ERICK RODRÍGUEZ MORA, portador de la cédula de identidad 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, portadora de la cédula de identidad, 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, portadora de la cédula de identidad 1-0921-0625, ERIKA LEIVA DÍAZ, portadora de la cédula de identidad 1-0905-0024, ERIKA MORALES CUBILLO, portadora de la cédula de identidad 1-0885-0266, ERIKA VILLALOBOS SOLANO, portadora de la cédula de identidad 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, portador de la cédula de identidad 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, portador de la cédula de identidad 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, portadora de la cédula de identidad 6- 0237-0005, ESTHER JIMÉNEZ AVILÉS, portadora de la cédula de identidad 1- 0835-0109, EUGENIA ARIAS QUESADA, portador de la cédula de identidad 3-0287-0420, EUNICE OBANDO SOLANO, portadora de la cédula de identidad 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, portador de la cédula de identidad 1-0377-0039, EVERALDO ALFARO FERLINI, portador de la cédula de identidad 1-0771- 0854, EZEQUIEL ÁLVAREZ CABEZAS, portador de la cédula de identidad 1-1046-0548, FABIÁN GORDIANO MONTERO MONTERO, portador de la cédula de identidad 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, portador de la cédula de identidad 1-0822-0756, FIORELLA PÉREZ FONSECA, portadora de la cédula de identidad 5-0300-0115, FLOR BRENES HERNÁNDEZ, portadora de la cédula de identidad, 1-0886-0825, FLOR MARÍA MURILLO VINDAS, portadora de la cédula de identidad 2-0458-0802, FLORA MARÍA CORDERO ROJAS, portadora de la cédula de identidad 6-0225-0890, FLORIBEL CAMPOS SOLANO, portadora de la cédula de identidad 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, portadora de la cédula de identidad 2-0497-0271, FLORIBETH PALACIOS ALVARADO, portadora de la cédula de identidad 6-0221-0749, FLOR Y ROCÍO CAMPOS SANDOVAL, portadora de la cédula de identidad 2-0414-0476, FRANCINI DELGADO LEÓN, portadora de la cédula de identidad 4-0168-0486, FRANCISCO JOSÉ BONILLA GUZMÁN, portador de la cédula de identidad 1-0640-0491, FRANCISCO MURILLO ZÚÑIGA, portador de la cédula de identidad 1-0602-0162, FRANÇOISE RODRÍGUEZ CORONADO, portadora de la cédula de identidad 1-0944-0235, FRANK GARCÍA MORAGA, portador de la cédula de identidad 5-0298-0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, portador de la cédula de identidad, 1-0900-0131, FRANZ EDUARDO VEGA ZÚÑIGA, portador de la cédula de identidad, 3-0292-0396, FRESSIA REVELES GÓMEZ, portadora de la cédula de identidad 1-0922-0486, GABRIEL BARRANTES PALAFOX, portador de la cédula de identidad 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, portadora de la cédula de identidad 1-0725- 0918, GAUDY AGUI LAR ALFARO, portadora de la cédula de identidad 1-0935-0817, GERARDO ALVARADO CHAVES, portador de la cédula de identidad 2-0378-0401, GERARDO CERVANTES FONSECA, portador de la cédula de identidad 3-0278-0929, GERARDO SÁNCHEZ RIVERA, portador de la cédula de identidad 1-0741-0686, GERMAN ESQUIVEL CAMPOS, portador de la cédula de identidad 1-0965-0647, GIAN JAVIER MUIR YOWNG, portador de la cédula de identidad 3-0300-0955, GILBERTO MORA MOLINA, portador de la cédula de identidad 2-0534-0866, GINA RAMÓN FERNÁNDEZ, portadora de la cédula de identidad 1 -0791- 0967, GINETHE RETANA UREÑA, portadora de la cédula de identidad 1-0765-0153, GINNETH DURÁN CORRALES, portadora de la cédula de identidad 1-0689-0187, GINNETTE AMADOR GODOY, portadora de la cédula de identidad 8-0051-0937, GIOVANNY GONZÁLEZ HERNÁNDEZ, portador de la cédula de identidad 1- 0956-0895, GISELLE GUTIÉRREZ SOTO, portadora de la cédula de identidad 2-0408- 0809, GISELLE ROJAS ROJAS, portadora de la cédula de identidad 2-0507-0474, GLADYS NÜÑEZ RIVAS, portadora de la cédula de identidad 5-0185-0742, GLORIA ESTELA ÁNGULO SMITH, portadora de la cédula de identidad 1-0728-0619, GREIVIN HERNÁNDEZ CÓRDOBA, portador de la cédula de identidad 2-0445-0438, GUADALUPE VEGA SEQUEIRA, portador de la cédula de identidad 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, portador de la cédula de identidad 1-0760-0343, GUILLERMO ROSALES MORA, portador de la cédula de identidad 1-0731-0037, GUILLERMO VALVERDE MONGE, portador de la cédula de identidad 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, portador de la cédula de identidad 6-0222-0170, GUSTAVO RODRÍGUEZ TENCIO, portador de la cédula de identidad 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, portador de la cédula de identidad 7-0075-0104, HANNIA VANESSA RAMÍREZ PICADO, portador de la cédula de identidad 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, portador de la cédula de identidad 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, portador de la cédula de identidad 5-0242-0405, HAZEL ALFARO GONZÁLEZ, portador de la cédula de identidad 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, portador de la cédula de identidad 1-0869-0832, HÉCTOR SANTAMARÍA VÍQUEZ, portador de la cédula de identidad 1-0908-0937, HEIDY ARAYA PINEDA, portadora de la cédula de identidad 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, portadora de la cédula de identidad 1-0819-0354, HELLEN VANESSA ARIAS FATJÓ, portadora de la cédula de identidad 1-0788-0682, HENRY CAMACHO ESQUIVEL, portador de la cédula de identidad 4-0156-0291, HENRY MOODIE FEDRICK, portador de la cédula de identidad 7-0112-0315, HENRY TIJERINO ESPINOZA, portador de la cédula de identidad 5-0250-0209, HERNÁN VÁSQUEZ CASTAÑEDA, portador de la cédula de identidad 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, portador de la cédula de identidad 1-0826-0702, IGNACIO GERARDO LÉPIZ SALAZAR, portador de la cédula de identidad 4-0164-0654, ILEANA MARÍA LEAL ZÚÑIGA, portadora de la cédula de identidad 6-0196-0131, ILSE MARÍA GONZÁLEZ DOSMAN, portadora de la cédula de identidad 6-0240-0588, INDIRA ALFARO CASTILLO, portadora de la cédula de identidad 2-0462-0902, INEL GIBBONS GÓMEZ, portadora de la cédula de identidad 7-0109-0072, INGRID ÁNGULO SÁNCHEZ, portadora de la cédula de identidad 5-0285-0560, INGRID ARAYA LEANDRO, portadora ce la cédula de identidad 1-0949-0945, INGRID SANÓU KARLSON, portadora de la cédula de identidad 1-0593-0629, INOCENCIO GÓMEZ OBANDO, portador de la cédula de identidad 5-0186-0272, IRENE BLANCO MORALES, portadora de la cédula de identidad 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, portador de la cédula de identidad 1-0635-0364, IVÁN GRANADOS BARQUERO, portador de la cédula de identidad 3-0325-0944, IVÁN PÉREZ PÉREZ, portador de la cédula de identidad 7-0087-0308, IVANNIA AGUILAR ARRIETA, portadora de la cédula de identidad 1-0823-0346, IVANNIA MEDINA RAMÍREZ, portadora de la cédula de identidad 1-0911-0387, IVANNIA PATRICIA MORALES LÓPEZ, portadora de la cédula de identidad 1-0879-0108, IVANNIA VALERIO VILLALOBOS, portadora de la cédula de identidad 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, portadora de la cédula de identidad 1-0841-0091, IVETH LORENA DUARTE CERDAS, portadora de la cédula de identidad 1-0877-0005, IVETH TORRES GONZÁLEZ, portadora de la cédula de identidad 5-0235- 0765, IVONNE VALVERDE SANABRIA, portadora de la cédula de identidad 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, portador de la cédula de identidad 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, portador de la cédula de identidad 5-0308-0930, JAVIER ALFARO VALERIO, portador de la cédula de identidad 1-0660-0072, JAVIER FRANCISCO DELGADO CARAZO, portador de la cédula de identidad 5-0257-0789, JAVIER QUESADA QUESADA, portador de la cédula de identidad 1-0739-0219, JAVIER VINDAS ROCHA, portador de la cédula de identidad 1-0749-0307, JEANNETTE BARBOZA CASCANTE, portadora de la cédula de identidad 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, portador de la cédula de identidad 1-0910-0476, JENNIFER STEPHENSON STERLING, portadora de la cédula de identidad 7-0096-0630, JENNY ARCE CÓRDOBA, portadora de la cédula de identidad 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, portadora de la cédula de identidad 3-0313-0291, JENNY NÚÑEZ SALAZAR, portadora de la cédula de identidad 6-0280-0719, JEREMY EDUARTE ALEMÁN, portador de la cédula de identidad 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, portador de la cédula de identidad 1 -0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, portadora de la cédula de identidad 1 -0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, portador de la cédula de identidad 1-0881-0675, JHONNY ALFARO NAVARRETE, portador de la cédula de identidad 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, portador de la cédula de identidad 1-0787-0155, JOHANNA CHAVES LEÓN, portadora de la cédula de identidad 1-0897-0130, JOHN PALADINO JIMÉNEZ, portador de la cédula de identidad 1-0941-0472, JOHNNY ÁLVAREZ SANDÍ, portador de la cédula de identidad 7-0078-0010, JONATHAN GAMBOA VALLADARES, portador de la cédula de identidad 2-0495-0512, JONATHAN GOÑI CHAVES, portador de la cédula de identidad 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, portador de la cédula de identidad 1-0973-0613, JORGE AGUILAR PÉREZ, portador de la cédula de identidad 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, portador de la cédula de identidad 1-0753-0847, JORGE ANTONIO CHACÓN COREA, portador de la cédula de identidad 1-0762-0236, JORGE CONTRERAS LACAYO, portador de la cédula de identidad 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, portador de la cédula de identidad 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, portador de la cédula de identidad 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, portador de la cédula de identidad 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, portador de la cédula de identidad 1-0612-0417, JORGE MARIO ROJAS MEJIAS, portador de la cédula de identidad 2-0500-0326, JORGE ROBLES ZÚÑIGA, portador de la cédula de identidad 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, portador de la cédula de identidad número 1-0778-0897, JOSÉ EFRAÍN SANDERS QUESADA, portador de la cédula de identidad 1-0740-0038, JOSÉ ALBERTO RIVERA OLIVARES, portador de la cédula de identidad 1 -0793-0076, JOSÉ ALEXANDER MORA GARCÍA, portador de la cédula de identidad 1-0706-0010, JOSÉ ALONSO RODRÍGUEZ VARGAS, portador de la cédula de identidad 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACÓN, portador de la cédula de identidad 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, portador de la cédula de identidad 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, portador de la cédula de identidad 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, portador de la cédula de identidad 1-0670-0201, JOSÉ GILBERTO ROJAS CHACÓN, portador de la cédula de identidad 1-0684- 0910, JOSÉ LUIS BADILLA CUADRA, portador de la cédula de identidad, 2-0449-0004, JOSÉ LUIS BENAVIDES UMAÑA, portador de la cédula de identidad 1 -0714-0628, JOSÉ LUIS PERAZA ÁLVAREZ, portador de la cédula de identidad 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, portador de la cédula de identidad 1-0873-0458, JOSÉ MAURICIO FONSECA UMAÑA, portador de la cédula de identidad 1-0921- 028, JOSÉ RAFAEL ROJAS LÓPEZ, portador de la cédula de identidad 1-0772-0917, JOSÉ RAMÓN HIDALGO HIDALGO, portador de la cédula de identidad 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMÍREZ, portador de la cédula de identidad 3- 320-980, JOSÉ RUBÉN DIMAS PORTILLO, portador de la cédula de identidad, 7-0070-0864, JUAN CARLOS ARIAS AGUILAR, portador de la cédula de identidad 1-0408-0344, JUAN CARLOS CAMPOS MARÍN, portador de la cédula de identidad 1-0838-0041, JUAN CARLOS LEAL VEGA, portador de la cédula de identidad 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, portador de la cédula de identidad 2-0448-0967, JUAN CARLOS QUESADA QUESADA, portador de la cédula de identidad 1-0796-0215, JUAN CARLOS SALAS VARELA, portador de la cédula de identidad 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, portador de la cédula de identidad 1-0922-0112, JUAN JOSÉ ACUÑA PASTRANA, portador de la cédula de identidad 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, portador de la cédula de identidad 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, portador de la cédula de identidad 2-0486-0526, JUAN LUIS SÁNCHEZ ALVARADO, portador de la cédula de identidad 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, portador de la cédula de identidad 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, portador de la cédula de identidad 5-0215-0175, KAREN JACKELYN THOMAS SMITH, portadora de la cédula de identidad 7-0096-0607, KARIN AGUILAR MOLINARI, portadora de la cédula de identidad 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, portadora de la cédula de identidad 1-0910-0203, KARLA SANCHO VARGAS, portadora de la cédula de identidad 1-0779-0289, KAROLINA RIVERA ESPINOZA, portadora de la cédula de identidad 2-0514-0769, KATTIA CAMPOS ZÚÑIGA, portadora de la cédula de identidad 1-0707-0725, KATTIA CORDERO SOLANO, portadora de la cédula de identidad 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, portadora de la cédula de identidad 1-0984-0078, KATTIA MARÍA VARGAS PÉREZ, portadora de la cédula de identidad 1- 0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, portadora de la cédula de identidad 1-0646-0777, KATTIA MORALES NAVARRO, portadora de la cédula de identidad 1-0801-0141, KATTIA SABORÍO CHAVERRI, portadora de la cédula de identidad 2-0453-0781, KATTIA CECILIA MARÍN MIRANDA, portadora de la cédula de identidad 1-0784-0554, KATTIA V ARGAS SALAS, portadora de la cédula de identidad 1-0793-0718, KATTYA MERCEDES MONGE PACHECO, portadora de la cédula de identidad 3-0337-0036, KRISIA FUMERO ARAYA, portadora de la cédula de identidad 1-0324-0912, LAURA PATRICIA CHACÓN MORA, portadora de la cédula de identidad 1-0708- 0472, LEDA GINETTE SOLANO BARRA, portadora de la cédula de identidad 6-0166-0755, LEONARDO BRENES GÓMEZ, portador de la cédula de identidad 1- 0921-0927, LIDIA ISABEL VÁSQUEZ VALLEJOS, portadora de la cédula de identidad 5-0265-0923, LIGIA CASTILLO CASTILLO, portadora de la cédula de identidad 1-0344-0861, LILLIAM MARÍA GARITA SHARPE, portadora de la cédula de identidad 7-0074-0805, LILLIANA ROJAS MORA, portadora de la cédula de identidad 7-0111-0674, LILLIANA SABORÍO SABORÍO, portadora de la cédula de identidad 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, portadora de la cédula de identidad 2-0497-0272, LIZETH BARAHONA CASTILLO, portadora de la cédula de identidad 7-0097-0842, LIZETH ROGERS ROGERS, portadora de la cédula de identidad 7-0101-0960, LIZETTE BRENES ARCE, portadora de la cédula de identidad 1-0715-0167, LIZZETH CRUZ TORRES, portadora de la cédula de identidad 1-0615-0237, LORELEY CERDAS ÁVILA, portadora ce la cédula de identidad 1-0723-0311, LORENA RODRÍGUEZ SALAS, portadora de la cédula de identidad 1-0744-0409, LOURDES ANGULO JIMÉNEZ, portadora de la cédula de identidad 5-0257-0944, LUCRECIA ROJAS ROJAS, portadora de la cédula de identidad 3-0272-0321, LUIS ÁLVAREZ VINDAS, portador de la cédula de identidad 2-0417-0295, LUIS ÁNGEL MATAMOROS ARIAS, portador de la cédula de identidad 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, portador de la cédula de identidad 1-0793-0256, LUÍS DIEGO CHAVARRÍA GARCÍA, portador de la cédula de identidad 1-0948-0118, LUIS DIEGO ZARATE MORALES, portador de la cédula de identidad 1-0993-0395, LUIS ENRIQUE ARROYO ACUÑA, portador de la cédula de identidad 1-0626-0336, LUIS ENRIQUE LEÓN RODRÍGUEZ, portador de la cédula de identidad 5-0313-0263, LUIS FALLAS PIVA, portador de la cédula de identidad 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, portador de la cédula de identidad 1-0884-0317, LUIS FERNANDO RODRÍGUEZ ARTAVIA, portador de la cédula de identidad 2-0467- 0324, LUIS FERNANDO SOLÍS VILLEGAS, portador de la cédula de identidad 1- 0576-0916, LUIS FERNANDO SUÁREZ JIMÉNEZ, portador de la cédula de identidad 1-0738-0178, LUÍS GERARDO MARTÍNEZ GARCÍA, portador de la cédula de identidad 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, portador de la cédula de identidad 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, portador de la cédula de identidad 1-0784-0409, LUIS GUILLERMO COTO QUESADA, portador de la cédula de identidad 3-0242-0147, LUÍS GUILLERMO VÁSQUEZ UREÑA, portador de la cédula de identidad 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, portador de la cédula de identidad 5-0240-0795, LUÍS MANUEL RAMÍREZ SOLÍS, portador de la cédula de identidad número 2-0435-0895, LUIS MATAMOROS CARVAJAL, portador de la cédula de identidad 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, portador de la cédula de identidad 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, portador de la cédula de identidad 1-0802-0480, LUIS RODRIGO GUTIÉRREZ ARGUEDAS, portador de la cédula de identidad 1-0940-0199, LUIS RODRÍGUEZ CRUZ, portador de la cédula de identidad 7-0090-0234, LUIS VÁSQUEZ VALLEJOS, portador de la cédula de identidad 5-0247-0313, MAGALIE VARGAS JOHNSON, portadora de la cédula de identidad 7-0090-0188, MALCO MONTOYA RAMÍREZ, portador de la cédula de identidad 5-0262-0199, MANFRED QUESADA SÁNCHEZ, portador de la cédula de identidad 6-0268- 0546, MANUEL ALEJANDRO TORRES CASTRO, portador de la cédula de identidad 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, portador de la cédula de identidad 1-0708-0291, MANUEL ERNESTO DURÁN CASTRO, portador de la cédula de identidad 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, portador de la cédula de identidad 6-0231-0761, MANUEL OREAMUNO ZEPEDA, portador de la cédula de identidad 1-0859-0237, MANRIQUE MORALES MONTIEL, portador de la cédula de identidad 6-0271-0224, MARCELA ZUÑIGA JIMÉNEZ, portadora de la cédula de identidad 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, portador de la cédula de identidad 1-0518-0695, MARCO ANTONIO CARRIÓN HERNÁNDEZ, portador de la cédula de identidad 1-0817- 0932, MARCO ANTONIO HERRERA CHARRAUN, portador de la cédula de identidad 1-0870-0028, MARCO BADILLA BERMÚDEZ, portador de la cédula de identidad 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, portador de la cédula de identidad 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, portador de la cédula de identidad 1-0801-0273, MARCO VINICIO PORRAS MORALES, portador de la cédula de identidad 2-0429-0412, MARCO VINICIO RODRÍGUEZ ARAGÓN, portador de la cédula de identidad 2-0485-0423, MARCONY ARBUROLA VALVERDE, portador de la cédula de identidad 5-0246-0169, MARGARITA CERDAS VEGA, portadora de la cédula de identidad 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELÁSQUEZ, portadora de la cédula de identidad 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, portadora de la cédula de identidad 1-0968-0625, MARÍA AUXILIADORA SOTO RIVERA, portador de la cédula de identidad 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, portadora de la cédula de identidad 1-0539- 0560, MARÍA DE LA CRUZ ARROYO BRAVO, portadora de la cédula de identidad 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRÍGUEZ, portadora de la cédula de identidad 1-0700-0492, MARÍA DE LOS ÁNGELES CHAVES VARGAS, portadora de la cédula de identidad 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, portadora de la cédula de identidad 5-0248-0031, MARÍA DEL CARMEN VÁSQUEZ VALLEJOS, portadora de la cédula de identidad 5-0233-0377, MARÍA ELENA MOLINA SABORÍO, portadora de la cédula de identidad 6-0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, portadora de la cédula de identidad 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ, portadora de la cédula de identidad 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, portadora de la cédula de identidad 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, portadora de la cédula de identidad 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, portadora de la cédula de identidad 3-0274- 0283, MARÍA MARGOTH CASTRO SALAZAR, portadora de la cédula de identidad 2-0454- 0319, MARÍA MARITZA PIZARRO COREA, portadora de la cédula de identidad 5-02825- 0080, MARÍA TERESA BENAVIDES ARGUELLO, portadora de la cédula de identidad 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, portadora de la cédula de identidad 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, portadora de la cédula de identidad 1-0820-0799, MARIANO RODRÍGUEZ FLORES, portador de la cédula de identidad 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, portadora de la cédula de identidad 7-0120-0576, MARIO ANGULO SALAZAR, portador de la cédula de identidad 1-1014-0171, MARIO MIRANDA DE LA O, portador de la cédula de identidad 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, portadora de la cédula de identidad 5-0241-0198, MARITZA VALVERDE CORDERO, portadora de la cédula de identidad 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, portadora de la cédula de identidad 1-0604-0812, MARJORIE SANABRIA ROJAS, portadora de la cédula de identidad 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, portadora de la cédula de identidad 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, portadora de la cédula de identidad 1-0607-0484, MARLENY RAMÍREZ GAMBOA, portadora de la cédula de identidad 4-0150-0093, MARLON ARIAS QUIRÓS, portador de la cédula de identidad 1-0120-0929, MARLYN CASTRO ALVARADO, portador de la cédula de identidad 9-0076-0447, MARLYN ELENA QUESADA QUESADA, portadora de la cédula de identidad 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, portadora de la cédula de identidad 1-0692- 0673, MARTÍN HERNÁNDEZ SERRANO, portador de la cédula de identidad 1-0726-0721, MARVIN ÁNGULO DÍAZ, portador de la cédula de identidad 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, portador de la cédula de identidad 3-0258-0595, MAUREEN BOLAÑOS ROJAS, portadora de la cédula de identidad 1-0784-0631, MAUREEN SILES MATA, portadora de la cédula de identidad 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, portadora de la cédula de identidad 1-1003-0126, MAUREEN IONG UREÑA, portadora ce la cédula de identidad 1-0815-0990, MAUREN VENEGAS MÉNDEZ, portadora de la cédula de identidad 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, portador de la cédula de identidad 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, portador de la cédula de identidad 1-0783-0049, MAURICIO RETANA GONZÁLEZ, portador de la cédula de identidad 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, portador de la cédula de identidad 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, portadora de la cédula de identidad 7-0087-0424, MAYRA GISELLA GONZÁLEZ, SÁNCHEZ, portadora de la cédula de identidad 1-0567-0766, MELANIA GÓMEZ ACUÑA, portadora de la cédula de identidad 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, portadora de la cédula de identidad 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, portador de la cédula de identidad 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, portador de la cédula de identidad 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, portador de la cédula de identidad 7-0072-0678, MIGUEL OVARES CHAVARRÍA, portador de la cédula de identidad 1-1006-0605, MINOR ANCHÍA VARGAS, portador de la cédula de identidad 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, portador de la cédula de identidad 6-0217-0066, MINOR MONGE CAMACHO, portador de la cédula de identidad 1-0676-0442, MINOR RIVAS TORRENTES, portador de la cédula de identidad 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, portador de la cédula de identidad 3-0316-0212, MIXCY CHAVES MENDOZA, portadora de la cédula de identidad 5-0309-0547, MOISÉS ALVARADO CHACÓN, portador de la cédula de identidad 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, portadora de la cédula de identidad 5-0247-0582, NATACHA PIZARRO SOTO, portadora de la cédula de identidad 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, portador de la cédula de identidad 2-0443-0931, NELSON PÉREZ GUADAMUZ, portador de la cédula de identidad, 1-0901-0416, NIDIA CASTRO CONEJO, portadora de la cédula de identidad 1-0776-0726, NILLS ROJAS JARA, portador de la cédula de identidad 7-0102-0481, NUBIA AGUILAR CAMACHO, portadora de la cédula de identidad 1 -0582-0179, NURIA QUESADA ZAMORA, portadora de la cédula de identidad 1-0619-0414, OLDEMAR CERDAS JUÁREZ, portador de la cédula de identidad 5-0252-0491, OLGA MURILLO ESPINOZA, portadora de la cédula de identidad 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, portadora de la cédula de identidad 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, portador de la cédula de identidad 2-0459-0740, OMAR BRENES CAMPOS, portador de la cédula de identidad 1-0889-0754, ORLANDO CASTRILLO VARGAS, portador de la cédula de identidad 1-0730-0335, OSBALDO ROSALES CHACÓN, portador de la cédula de identidad 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, portador de la cédula de identidad 4-0154-0227, OSVALDO LÓPEZ MORA, portador de la cédula de identidad 1- 0926-0995, OSVALDO RODRÍGUEZ FLORES, portador de la cédula de identidad 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, portador de la cédula de identidad 3-0301-0666, PABLO MACEO SOTO, portador de la cédula de identidad 7-0112-0501, PABLO ROLDÁN UMAÑA, portador de la cédula de identidad 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, portadora de la cédula de identidad 4- 0161-0248, PATRICIA FALLAS MELÉNDEZ, portadora de la cédula de identidad 1-0660- 0570, PATRICIA RIVERA SANDOVAL, portadora de la cédula de identidad 1-0782- 0780, PATRICIA WO CHINO MOK, portadora de la cédula de identidad 7-0094- 0757, PAULO HUMBERTO MENA QUESADA, portador de la cédula de identidad 3-0331 -0109, PEDRO ARCE GONZÁLEZ, portador de la cédula de identidad 2-0385-0931, PEDRO BONILLA PICADO, portador de la cédula de identidad 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, portador de la cédula de identidad 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, portador de la cédula de identidad 2-0490-0234, RAFAEL DAVID VEGA SEGURA, portador de la cédula de identidad 1-0791-0159, RAFAEL NAVARRETE BRENES, portador de la cédula de identidad 7-0104-0669, RAFAEL UREÑA BARRIOS, portador de la cédula de identidad 1-0915-0224, RAMÓN ANGULO ROLDÁN, portador de la cédula de identidad 1-0554-0410, RANDALL RODRÍGUEZ ULATE, portador de la cédula de identidad 1-0783-0793, RANDY MARTÍN TREJOS MORALES, portador de la cédula de identidad 1-0758-0892, RAQUEL RAMÍREZ BONILLA, portadora de la cédula de identidad 1-0997-0349, RASHID BEIRUTE GRANADOS, portador de la cédula de identidad 5-0243- 0570, RAYVAN MC LEOD BÍGSBY, portador de la cédula de identidad 7-0132- 0768, REBECA GUARDIA MORALES, portadora de la cédula de identidad 1-0808-0973, REBECCA ARTAVIA BRUNO, portadora de la cédula de identidad 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, portador de la cédula de identidad 1-0548-0407, RICARDO CALDERÓN VALVERDE, portador de la cédula de identidad 9-0098-0557, RICARDO GARCÍA MOLINA, portador de la cédula de identidad 4-0170-0018, RITA CASTRO ABARCA, portadora de la cédula de identidad 2-0456- 0750, RITA MARÍA QUIRÓS OBANDO, portador de la cédula de identidad 1-0758- 0598, ROBERTO CARLOS PÉREZ VARGAS, portador de la cédula de identidad 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, portador de la cédula de identidad 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, portador de la cédula de identidad 1-0813-0303, ROCÍO PICADO VARGAS, portadora de la cédula de identidad 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, portador de la cédula de identidad, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, portador de la cédula de identidad 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, portador de la cédula de identidad 1-0706-0332, RODRIGO CASTRO SOLÍS, portador de la cédula de identidad 7-0101-0028, RODRIGO CHAVES CALVO, portador de la cédula de identidad 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, portador de la cédula de identidad 1-0903-0505, ROELIS REYES PICHARDO, portador de la cédula de identidad 5-0273-0355, ROGER JIMÉNEZ FAJARDO, portador de la cédula de identidad 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, portador de la cédula de identidad 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, portador de la cédula de identidad 1-0538-0903, RONALD SOLÍS JIMÉNEZ, portador de la cédula de identidad 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, portadora de la cédula de identidad 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, portador de la cédula de identidad 4-0125-0931, ROSE MARY LAWRENCE MORA, portadora de la cédula de identidad 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, portadora de la cédula de identidad 1-0852-0854, ROSIBEL BRENES ALVARADO, portadora de la cédula de identidad 4-0162-0518, ROSIBEL BRENES REYES, portadora de la cédula de identidad 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, portadora de la cédula de identidad 1-0698-0291, ROXANA GÓMEZ BARQUERO, portadora de la cédula de identidad 9-0075-0148, ROXANA HIDALGO VEGA, portadora de la cédula de identidad 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, portadora de la cédula de identidad 1-0652-0137, ROXANA MESÉN FONSECA, portadora de la cédula de identidad 1-0850-0833, ROY FERNANDO VARGAS NARANJO, portador de la cédula de identidad 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, portadora de la cédula de identidad 1- 0971-0856, SABAS GARCÍA LEAL, portador de la cédula de identidad 5-0220-0011, SANDRA PÉREZ OBANDO, portadora de la cédula de identidad 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, portador de la cédula de identidad 5-0219-0232, SAUL RETANA LÓPEZ, portador de la cédula de identidad 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, portadora de la cédula de identidad 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, portador de la cédula de identidad 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, portador de la cédula de identidad 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, portadora de la cédula de identidad 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, portadora de la cédula de identidad 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, portadora de la cédula de identidad 2-0497- 0859, SHIRLEY VÁSQUEZ CASTAÑEDA, portadora de la cédula de identidad 6-0234-0401, SILVIA CASCANTE RUEDA, portadora de la cédula de identidad 6-0241-0939, SILVIA CHINCHILLA PORRAS, portadora de la cédula de identidad 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, portadora de la cédula de identidad 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, portadora de la cédula de identidad 1-0791-0964, SILVIA ESPINOZA ACEVEDO, portadora de la cédula de identidad 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, portadora de la cédula de identidad 1-0977-0164, SILVIA PALMA ELIZONDO, portadora de la cédula de identidad 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, portadora de la cédula de identidad 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, portador de la cédula de identidad 1- 0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, portadora de la cédula de identidad 7-0091-0008, SONIA ISABEL GAMBOA ROJAS portadora de la cédula de identidad 2-0346-0839, SONIA RAMÍREZ THORPE, portadora de la cédula de identidad 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, portadora de la cédula de identidad 5-0222-0182, STEVEN PICADO GAMBOA, portador de la cédula de identidad 1-0982-0768, SUGEY FONSECA PORRAS, portadora de la cédula de identidad 1-1073-0434, SUGEY QUESADA VALERIN, portadora de la cédula de identidad 7-0116-0302, SUSANA ALFARO SOTO, portadora de la cédula de identidad 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, portadora de la cédula de identidad 1-0825-0973, TERESITA BOLAÑOS ROJAS, portadora de la cédula de identidad 1-0685-0508, TONY ACUÑA PANÍAGUA, portador de la cédula de identidad 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, portador de la cédula de identidad 5-0222-0486, VANESSA VILLALOBOS MONTERO, portadora de la cédula de identidad 2-0484-0081, VANLLY CANTILLO GAMBOA, portadora de la cédula de identidad 1-0874-0062, VERA VARGAS BARRANTES, portador de la cédula de identidad 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, portador de la cédula de identidad 1- 0730-0506, VÍCTOR FERNÁNDEZ VARGAS, portador de la cédula de identidad 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, portador de la cédula de identidad 1-0703-0316, VICTORIA OVIEDO SOTO, portadora de la cédula de identidad 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, portador de la cédula de identidad 1-0642-0719, WAIMAN HIN HERRERA, portador de la cédula de identidad 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, portador de la cédula de identidad 7-0082-0466, WALTER GONZÁLEZ FALLAS, portador de la cédula de identidad 1-0818-0248, WALTER GUEVARA LARA, portador de la cédula de identidad 6- 0180-0728, WILBERT KIDD ALVARADO, portador de la cédula de identidad 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, portador de la cédula de identidad 1-0923-0060, WILLIAM CALDERÓN NAVARRO, portador de la cédula de identidad 6-0212-0756, WILLIAM MATTHEWS SALAS, portador de la cédula de identidad 7-0084-0745, WILLIAM MORA DURÁN, portador de la cédula de identidad 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, portador de la cédula de identidad 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, portador de la cédula de identidad 5-0237-0488, XARY BRICEÑO ALVAREZ, portadora de la cédula de identidad 7-0085-0762, XINIA BARRIENTOS ARROYO, portadora de la cédula de identidad 1-0976-0204, XINIA MARÍA ZAMORA OVARES, portadora de la cédula de identidad 3-0294-0379, XINIA VEGA GUZMÁN, portadora de la cédula de identidad 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, portadora de la cédula de identidad 1-0870-0973, YARMILA ULATE YOUNG, portadora de la cédula de identidad 1- 0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, portador de la cédula de identidad 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, portadora de la cédula de identidad 1-0664-0089, YENSY CAMPOS BARBOZA, portadora de la cédula de identidad 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, portadora de la cédula de identidad 1-1404-0477, YESENIA PANIAGUA GÓMEZ, portadora de la cédula de identidad 1-0845-0494, YESENIA ZAMORA BADILLA, portadora de la cédula de identidad 1-0991-0793, YORLENDA SPENCE THOMAS, portadora de la cédula de identidad 7-0103-0835, YORLENY CHING CUBERO, portadora de la cédula de identidad 7-0119-0457, YORLENY FERRETO SOLANO, portadora de la cédula de identidad 4-0155-0255, YORLENY SALAZAR NARANJO, portadora de la cédula de identidad 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, portadora de la cédula de identidad 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, portadora de la cédula de identidad 5-0262-0980 y YURLY ARGUELLO ARAYA, portadora de la cédula de identidad 1-0870-0756, solicitan se les tengan como coadyuvantes en esta acción; se resuelve: El artículo 83 de la Ley de Jurisdicción Constitucional señala que en los quince días posteriores a la primera publicación del aviso a que alude el párrafo 2° del artículo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legítimo, podrán apersonarse dentro de ésta, a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa. En el caso concreto, los gestionantes se apersonaron dentro del término de ley y solicitan se les tengan como coadyuvantes por considerar que en razón de condición de funcionarios judiciales les asiste un interés legítimo en accionar en contra de la ley cuestionada. Estiman que la modificación legal que se realiza mediante la ley No. 9544 va en detrimento de las condiciones para optar por una pensión en el Poder Judicial. En consecuencia y siendo que la primera publicación del aviso se dio el 21 de marzo del 2019, lo procedente es tenerlos como coadyuvantes dentro de este asunto. Se advierte a los interesados que -en cuanto a los efectos de la coadyuvancia-, al no ser el coadyuvante parte principal del proceso, no resultaran directamente perjudicadas o beneficiadas por la sentencia, es decir, la eficacia de la sentencia no alcanza al coadyuvante de manera directa e inmediata, ni le afecta cosa juzgada, no le alcanzan, tampoco, los efectos inmediatos de ejecución de la sentencia, pues a través de la coadyuvancia no se podrá obligar a la autoridad jurisdiccional a dictar una resolución a su favor, por no haber sido parte principal en el proceso. Lo que si puede afectarle, pero no por su condición de coadyuvante, sino como a cualquiera, es el efecto erga omnes del pronunciamiento. La sentencia en materia constitucional, no beneficia particularmente a nadie, ni siquiera al actor; es en el juicio previo donde esto puede ser reconocido. Se tienen por contestadas las audiencias conferidas a la Procuraduría General de la República, al Presidente del Directorio de la Asamblea Legislativa y al Presidente de la Corte Suprema de Justicia, en la resolución de las 13:05 hrs. del 22 de febrero de 2019”.

163.- Mediante resolución de las 9.31 minutos del 10 de mayo del 2019, la Presidencia de la Sala Constitucional turna esta acción a la Magistrada Hernández López a quien por turno le corresponde.

164.- En escrito presentado el 16 de mayo de 2019 se apersona Karol Monge Molina y manifiesta que en el escrito de interposición de la coadyuvancia anterior, se incluyeron los siguientes coadyuvantes pero éstos no fueron incorporados en la resolución de las 9 horas 31 minutos del 10 de mayo del 2019: CARLOS ALBERTO SOLANO PÉREZ cédula 6-0211-0367; CARLOS CALDERÓN BARRIOS con cédula 3-0335-0644; CARLOS DARIO ÁLVAREZ ARRIETA cédula 2-0463-0645: CARLOS QUIRÓS TENORIO 1-0895-0474: CESAR AUGUSTO BARRANTES ARRIETA 1-0934-0951; EIMY ESPINOZA ANCHÍA 6-0260-0919; ELMER HERNÁNDEZ CASTILLO 5-0247-0005; FREDDY CHAJUD TORRES 6-0164-0694; GERALD HUERTAS ORTEGA 1-0926-0977; GERARDO MONGE BLANCO 1-0720-0430; GREGORIO JOSÉ HERNÁNDEZ SANDÍ 1-1016-0149; HALLEN CORDOBA CHAVES 5-0271-0887; ILEANA RIVERA BLANDÓN 1-0822-0815; JAVIER ALVARADO SORO 2-0391-0190; JAVIER LEAL DINARTE 5-0268-0217; JORGE ANTONIO CORDERO CHACON 1-1019-0604; KAREN ALFARO VARGAS 1-0808-0716; KATIA MARCELA SABORIO SOTO 4-0137-0134; KATTIA VARGAS NAVARRO 1-0701-0539; KATTIA VARGAS VEGA 1-0810-0668; LUIS EDUARDO RODRÍGUEZ QUIRÓS 1-0605-0013; MABEL MURILLO ARCE 2-0443-0636; MARCELA MADRIZ ARCE 3-0271-0457; MARÍA VALENTINA CARMIOL YALICO 1-0744-0771; MARIO CAMACHO CAMPOS 1-0845-0638; MARLENE ACEVEDO MONTES 6-0152-0743; MARVIN DURAN PEREIRA; OMAR AGÜERO ROJAS 6-0152-0077; RALOXS ALVARADO CASCANTE 1-0873-0410; RODNEY GEORJANNY EARL BROWN 1-0930-0027; RONALD ABARCA SOLANO 3-0282-0138; SANDRA GÓMEZ AGUILAR 3-0262-0507; SANTIAGO ALFONSO ARAYA GUTIERREZ 1-0826-0278; SHIRLEY ROJAS BARRANTES 5-0240-0923; TERESA JIMÉNEZ ROJAS 6-0172-0033; VICTOR HUGO CHAVES CHAVARRÍA 2-0443-0030; y WILKIN PORRAS ALVAREZ 1-0772-0252. Solicita que, debido a esa omisión, se adicione el auto dicho y se tenga la coadyuvancia como interpuesta en favor de estas personas. Agrega que, debido a un error involuntario, de manera errada se los números de cédula de algunos de los coadyuvantes y por ello, solicita que se lean de manera correcta, los siguientes: AMANDO AGÜERO ARAYA (léase AMANDO y no ARMANDO) 6-0212-0007; CARLOS PORRAS MORERA 1-0752-0459; DONALDO BERMÚDEZ RODRÍGUEZ 6-0250-0554; KRISIA FUMERO ARAYA 3-0324-0912; LIGIA CASTILLO CASTILLO 3-0344-0861; LUIS FERNANDO SUAREZ JIMENEZ 1-0738-0178; MARÍA ISABEL VILLEGAS NÚÑEZ 1-0665-0648; TANIA MARÍA PÉREZ BARRANTES 1-0825-0973; WALTER GONZALEZ FALLAS 1-0818-0243; JOSÉ RUBÉN DIMAS PORTILLO 8-0070-086. Solicita que, además, se incluya como coadyuvantes a las siguientes personas: AUGUSTO FEDERICO LEONHARDES ZAMORA, mayor, casado, empleado judicial, vecino de Desamparados de San José, cédula 6-0156-0657; ROGER GERARDO AGUILAR CEDEÑO, mayor, casado, Investigador de la Defensa Pública, vecino de San José, Desamparados, cédula de identidad 1-0583-0279; ROCÍO RAMÍREZ LEITÓN, mayor, viuda, Trabajadora Social, vecina de San José, Moravia, cédula de identidad 1-0544-0163; XINIA FERNÁNDEZ VARGAS, mayor, divorciada, Trabajadora Social, vecina de Cartago, cantón Central, cédula de identidad 1-0593-0681; y EVELYN PIEDRA VILLAFUERTE, mayor, divorciada, Contadora Pública, vecina de San José, Pérez Zeledón, cédula de identidad 1-0931-0261. Indica que plantea esta solicitud debido a que, por razones de salud, de estas personas, no pudieron firmar el respectivo Poder Especial Judicial a su favor (el que en este acto se adjunta), junto con todo el grupo de coadyuvantes, a fin de que pudiera representarlos en este asunto.

165.- En escrito presentado en la Secretaria de la Sala el 2 de septiembre de 2019 se apersona Wilkko Retana Álvarez, mayor de edad, funcionario judicial, vecino de Cartago, con cédula 1-0737-0795, para presentar coadyuvancia tardía en esta acción de inconstitucionalidad en contra de las condiciones establecidas en la Ley 9544 para optar por una jubilación. Pide que, a pesar de lo dispuesto en el artículo 83 de la Ley de la Jurisdicción Constitucional, si a bien lo tiene la Sala, se consideren los argumentos y motivos que plantea en esta gestión a fin de que existan más argumentos para resolver conforme a la Constitución Política. Indica que de acuerdo con la normativa que ha regulado el Régimen de Jubilaciones y Pensiones del Poder Judicial, durante los años 1937 a 2018, uno de los requisitos indispensables para jubilarse era tener al menos 30 años de servicio, pero ahora, con la reforma de la ley 9544, se dieron cambios sustanciales que elevó ese requisito a 35 años de servicio y una edad que se fijó en 65 años. Aduce que durante aquél rango de tiempo -1937 a 2018-, se dieron varias reformas en el Régimen de Jubilaciones y Pensiones en el Poder Judicial, siendo las más gravosas en la Ley 7302 Marco 15 julio 1992, Régimen General de Pensiones con Cargo al Presupuesto Nacional (Marco), en el Transitorio III, en o relativo al porcentaje a otorgar en la tasa de reemplazo, como la posibilidad de descontar de la edad de retiro un año por cada dos de los años servidos y cotizados para la Administración Pública, y estableciendo que dentro del plazo de 5 años, contado a partir de la entrada en vigencia de la ley, las personas que tuvieran derecho podrían pensionarse bajo los términos originales contemplados en la Ley No. 7302 Creación del Régimen General de Pensiones con Cargo al Presupuesto Nacional, Ley de Otros Regímenes Especiales y Reforma a la Ley N.° 7092 de 21 de abríl de 1988, y sus reformas, Ley del Impuesto sobre la Renta, de 8 de julio de 1992. Agrega que una segunda gran reforma se dio 01 de enero de 1994, con la reforma integral a la Ley Orgánica del Poder Judicial, la que mantuvo los 30 años de servicio, aumentó el salario promedio a 24 salarios y elevó la edad a sesenta años. Indica que posteriormente acaeció otra reforma el 26 de junio de 1996 en la que se establece en 24 salarios para promediar, 62 años de edad y 30 años de servicio. Manifiesta que la última gran reforma se da con la ley 9544 aquí impugnada el 22 de mayo de 2018, en que el salario promedio obedece al 82% de los últimos 20 años de salarios actualizados con el lPC, se aumentó a 65 años la edad, y el tiempo de servicio se establece en 35 años. Argumenta que, desde el punto de vista constitucional, los trabajadores a lo largo de su vida laboral, no pueden ni deben ser sometidos a grandes reformas que afecten, de modo alguno, su jubilación o pensión, pues ello radica en la estabilidad jurídica, que protege la Constitución Política. Reconoce que si bien se pueden realizar cambios en la legislación, lo cierto es que dichas cambios no pueden ni deben ser extremos o groseros, toda vez que ello son principios constitucionales que permiten, en un régimen democrático regular, proteger los derechos y principios constitucionales a los ciudadanos y habitantes. Señala que la propia Constitución Política, permite y autoriza regular, de modo que sea acorde con esos principios y derechos constitucionales, e incluso dimensionar para aquellas personas que tengan un tiempo determinado de laborar, para que queden cubiertos sus derechos constitucionales no para todos los trabajadores, sino en relación con aquellos que se determinen, bajo la lupa constitucional, es decir, aquellos trabajadores que tengan el tiempo suficiente para que sean protegidos. Indica que para determinar ese tiempo se pueden establecer diferentes parámetros como aquellos que tengan dos tercios de su vida laboral respecto al tiempo necesario para optar por la jubilación, esto es, si antes de la última reforma - 22 mayo de 2018- se fijaba en 30 años de servicio, los dos tercios serían 20 años, o bien, porqué no fijar en 23 años, 24 años, 25 años, 27 años de servicio, por ejemplo. Señala que, en este caso bajo estudio, la Sala Constitucional para resolver acorde con la Constitución Política, en su criterio, podría utilizar las reformas que se han dado a lo largo de los últimos años, y por ejemplo tomar la fecha de la reforma acaecida el 15 de julio de 1992, bajo la ley 7302; es decir, dar protección a los trabajadores que ingresaron a trabajar para el Poder Judicial antes de esa data, pues estos trabajadores hemos sufrido de varias reformas imponentes en la regulación del capitulo de jubilaciones y pensiones del Poder Judicial, pero aún así, incluso esa ley le dio protección a los trabajadores que ingresaron anteriormente, y que actualmente trabajan en el Poder Judicial, ello para efecto de poder beneficiarse del Transitorio III que establecía lo que se conoció como el 2 x 1. Argumenta que si la Sala logra determinar que ese parámetro se encuentra dentro del esquema constitucional, se lograría proteger y encontrar resonancia en los derechos y principios constitucionales, y así dimensionar en la ley 9544 que los trabajadores y servidores judiciales que ingresaron a laborar antes del 15 de julio de 1992, podrían pensionarse el amparo de las disposiciones establecidas en el Título IX de la Ley No. 7333 de 5 de mayo de 1993. Manifiesta que estas personas, al 22 de mayo de 2018, tendrían 25 años, 10 meses y 7 días de laborar para la institución. Considera que esto sería un tiempo de servicio razonable, y el parámetro de la fecha 15 de julio de 1992, tendría una motivación justa y razonable pues los servidores judiciales, no tendrían que soportar varias reformas extremas y groseras. Considera que es plausible y acorde al derecho de la Constitución, que ante el panorama presentado en esta acción de inconstitucionalidad, para encontrar sustento y protección en la Constitución Política, se dimensionen efectos de la reforma contenida en la Ley 9544, a fin de que los trabajadores no se vean afectados en su vida laboral, específicamente al momento de optar por una jubilación o pensión, y que se resuelva dimensionar la Ley 9544 en el sentido de que los trabajadores y servidores judiciales que ingresaron a laborar antes del 15 de julio de 1992, podrán pensionarse al amparo de las disposiciones establecidas en el Título IX de la Ley No.7333 de 5 de mayo de 1993. Indica que, para la reflexión, quiere relatar sobre los casos que se han dado a raíz de la Ley No. 9544 en los que los funcionarios se han tenido que jubilar para mejor servicio por incapacidad permanente, ello a fin de que se vea la realidad de la aplicación de las nuevas reglas: 1) según actas de Consejo Superior, artículo XXIV, de la sesión número 053-2019 del 1 de junio de 2019, en la que la perito 2 (oficina de Trabajo Social), fue jubilada con un tiempo de servicio de 18 años y 11 meses, con último salario devengado de ¢2.405.133,87 y se le fijó su monto de jubilación en ¢915.931,72 colones bruto pero con deducciones ¢736.091,18 colones; 2) el otro ejemplo, se encuentra en el artículo XLV de la sesión de Consejo Superior número 051-2019 del 04 de junio de 2019, en la que un Técnico de Comunicaciones Judiciales, fue jubilado con un tiempo de servicio de 18 años 3 meses, con último salario devengado de ¢ 966.599,25 colones, fijándose su monto de Jubilación en ¢338.129,37 colones, y con deducciones le quedó en ¢ 275.075,44 colones. Recuerda que cualquier trabajador puede ser objeto de un retiro para mejor servicio por incapacidad permanente. Finaliza solicitando que se le tenga como coadyuvante, aunque sea de forma tardía, y sobretodo que sus argumentos puedan ser tomados en cuenta y valorados.

166.- Por escrito recibido en la Secretaría de la Sala a las 11 horas 50 minutos del 10 de septiembre del 2019, los accionantes Mario Mena Ayales en su condición de representante legal de la Asociación Nacional de Empleados Judiciales (ANEJUD) y Juan Carlos Sebiani Serrano en su calidad de representante legal de la Asociación Nacional de Profesionales del Poder Judicial (ANPROJUD), interponen gestión de Pronto Despacho solicitando proceder al dictado de las sentencias que interesan en estos procesos al considerar que los autos ya se encuentran listos para sentencia. Formulan a la Sala una respetuosa solicitud para que esta acción de inconstitucionalidad y las que se le acumularon, sean resueltas y se dicte la sentencia final.

167.- En documento presentado en la Secretaría de la Sala el 4 de octubre de 2019, la Magistrada Hernández López plantea solicitud de inhibitoria. Manifiesta que, en este asunto, se consulta a la Sala su criterio sobre la constitucionalidad de la Ley de Reforma a las Pensiones y Jubilaciones del Poder Judicial y dentro del proceso le fue rechazada recientemente una causal de separación que se planteó en conjunto con los demás compañeros Magistrados. Indica que, no obstante lo anterior, y con el fin de generar la mayor transparencia posible en este caso, estima como su deber, someter a la Presidencia de la Sala, la siguiente situación que considera que debe valorarse, de previo a su intervención en este caso. Indica que es ampliamente conocido que alrededor de la tramitación del proyecto de reforma del régimen de pensiones del Poder Judicial, se alzaron numerosas voces, incluso dentro de la propia Asamblea Legislativa, que expresaron su inquietud y hasta su disgusto frente a la actitud de la Corte y la posibilidad de que los Magistrados beneficiados por el régimen actual de pensiones y jubilaciones, fueran quienes tenían en sus manos la decisión sobre la validez constitucional de ese régimen. Señala que, a diferencia de sus compañeros, consideró en su momento que dichas expresiones ameritaban una respuesta de su parte, por lo que el 24 de octubre de 2016, envió una carta a la Asamblea Legislativa y, particularmente, a Franklin Corella del Partido Acción Ciudadana, expresando sus criterios sobre lo planteado. Señala que ahí afirmó claramente que su intención era respetar la voluntad de la Asamblea Legislativa y que no dudaba de que las actuaciones de la Asamblea, en este tema, serían respetuosas de la Constitución, agregando que no objetaría lo que ese órgano decidiera imponer a través de una ley de la República. Indica que, sin duda, lo anterior puede interpretarse por un observador imparcial como un sometimiento a lo que ese órgano determine. Añade que, como reacción a dicha nota, los medios de prensa reprodujeron su anuencia a los cambios que definiera la Asamblea Legislativa, tal como queda recogido en este extracto de un artículo del Periódico la Nación del 31 dc octubre de 2016 que señaló:

"(La Magistrada) Hernández, quien integra el Tribunal constitucional, asegura que ella no expresará su parecer y tampoco resolverá ninguna consulta relacionada con las reformas al régimen de pensiones del Poder Judicial, pues considera que se vería directamente beneficiada o perjudicada. "Está claro que si llega algún caso de pensiones del Poder Judicial a la Sala Constitucional, presentaré la inhibitoria respectiva, esperando que sea admitida. Sobre el tema, tengo plena confianza en que la Asamblea Legislativa tomará decisiones informadas y respetuosas de la Constitución y la ley respecto al régimen de pensiones del Poder Judicial", expresó la magistrada Hernández en una nota dirigida al legislador Franklin Corella del PAC. (El destacado no es del original). El presidente de la Sala IV, Ernesto Jinesta, también anunció el viernes que se abstendrá de juzgar cualquier consulta sobre los recortes a las pensiones de lujo que impulsen la Asamblea Legislativa o el Gobierno”.

Manifiesta que, más aún, meses después el 5 de febrero de 2017, el mismo periódico recoge la impresión de un Diputado sobre su posición favorable a lo que decida la Asamblea en el tema del régimen de pensiones del Poder Judicial, y allí se deja claro que la opinión pública reconoce que ella ya tomó partido en este tema:

"Aunque dicha acción no tiene relación directa con las leyes aprobadas el año pasado, una decisión de la Sala IV dejaría clara la opinión de los magistrados sobre las pensiones altas.

Consultado sobre esto, Ottón Solís, diputado del Partido Acción Ciudadana (PAC), destacó que hay magistrados que pueden considerarse “baluartes de la ética, que comprenden que no deben defender intereses propios, como Nancy Hernández”. Aseguró que hay otros que sí van por lo suyo, “como la magistrada presidenta de la Corte”, quien se opone a los recortes”.

Manifiesta que, dicha actuación, para cualquier observador razonable, puede interpretarse como un adelantado de criterio jurídico, en este caso, de aceptación de la Ley accionada en el presente expediente, de hecho, una buena cantidad de personas consideran que se ha pronunciado en favor de la corrección constitucional de lo actuado por la Asamblea Legislativa y con ello queda en entredicho el grado de su imparcialidad frente a este conflicto. Indica que es justamente en este tipo de casos, que debe privar el sentido de la prudencia y el cuidado respecto de las apariencias que puedan ser percibidas por las personas.- Añade que, en ese mismo sentido los denominados "Principios de Bangalore sobre Conducta Judicial" emitidos por las Naciones Unidas sobre actuación judicial, señalan en los comentarios relacionados con el tema de la obligación de imparcialidad, que la valoración de su existencia debe realizarse tomando en cuenta la percepción de un observador razonable; e igualmente, otros conceptos reafirman esta idea y la expresada arriba sobre el tema de la importancia de las apariencias, como por ejemplo las nociones de "sensación de agravio o injusticia" , "percepción razonable" o bien "el ofrecimiento de garantías que descarten cualquier duda legítima respecto de la imparcialidad" que puedan erosionar la confianza en la justicia. Ahora bien, señala que los argumentos de la presente gestión y las pretensiones expuestas, no son novedosas para la Presidencia de esta Sala, ni mucho menos, inaccesibles. Manifiesta que, durante la tramitación de la Consulta Legislativa de la ley aquí accionada, seguida bajo el expediente 17-017148-0007-CO, se aceptó la inhibitoria del Magistrado Jinesta Lobo, sobre el resto de las inhibitorias de los integrantes propietarios del Tribunal para ese entonces, como se procede a explicar a continuación, siendo como preámbulo necesario exponer que, originalmente, el pleno de la Sala para aquel entonces, gestionó su inhibitoria, siendo ésta aceptada por la Presidencia; sin embargo, posteriores inhibitorias de las y los Magistrados Suplentes habilitados por sorteo, obligaron a la Presidencia de la Sala Constitucional a nuevamente habilitar al pleno del Tribunal que ya había sido separado, únicamente, con una excepción: El Magistrado Jinesta Lobo. Argumenta que, en el caso de la solicitud de inhibitoria del Magistrado Jinesta Lobo, interpuesta el 21 de noviembre de 2017, éste fundamentó su gestión en el siguiente sentido:

"Como es de conocimiento público y notorio, desde que, en la Sesión de Corte Plena de 20 de junio de 2016 se trató el tema de la reforma al régimen de jubilaciones y pensiones del Poder Judicial, tal y como lo anuncié en ese instante y mediante comunicado público en días posteriores, a partir de ese momento me inhibiría de conocer y resolver cualquier asunto, incluso de otros regímenes diversos al del Poder Judicial, donde se discutiera una reforma de los mismos […] Ninguno de los otros Magistrados propietarios se encuentra en mi situación, de modo que mi inhibitoria tiene un peso superior al habérseme separado, previamente, en 446 asuntos que conoce la Sala Constitucional " Argumenta que las palabras del Magistrado Jinesta Lobo tuvieron eco en la Presidencia de esta Sala, por cuanto efectivamente, mediante resolución de la Presidencia de las diez horas cuarenta minutos del veintisiete de febrero de dos mil dieciocho, se decidió habilitar nuevamente a los Magistrados Femando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado y al Magistrado Suplente, José Paulino Hernández Gutiérrez, manteniendo separado al Magistrado Jinesta Lobo. Indica que del análisis de la resolución en mención, es claro que las razones adicionales expuestas por el Magistrado Jinesta Lobo, fueron las que le mantuvieron inhabilitado para conocer en aquel entonces, de la Consulta Legislativa, que al día hoy -ya Ley de la República- se encuentra accionada. Manifiesta que, en razón de lo anterior, solicita que se acepte la presente inhibitoria, en el mismo sentido que fue aceptada la inhibitoria del Magistrado Jinesta Lobo, por sus manifestaciones genéricas sobre el tema de pensiones del Poder Judicial por cuanto estima que las de ella, también genéricas, y de condiciones prácticamente similares a las expuestas por el Magistrado Jinesta Lobo, -publicadas asimismo en medios de comunicación-, la colocan en las mismas circunstancias que el Magistrado Jinesta Lobo. Señala que, al igual que lo consideró el Magistrado Jinesta Lobo en aquel entonces, considera que en su caso en concreto, se pueden extraer razones de peso diferentes a las que ostentan el resto de los integrantes de esta Sala, que ameritan su separación del conocimiento del presente caso. Argumenta que, ahora bien, este tipo de cuestiones, donde se acepta la inhibitoria de un Magistrado o Magistrada durante la tramitación de un proceso, producto de manifestaciones públicas brindadas por alguno de los miembros de este Tribunal, no son novedosas para la Presidencia de esta Sala. Así por ejemplo, durante la tramitación de la Consulta Legislativa tramitada bajo el expediente l8-016546-0007-CO, el Magistrado Cruz Castro interpuso la siguiente gestión:

"En virtud de que ha sido de conocimiento público que, el suscrito Magistrado se ha pronunciado sobre temas relacionados con el proyecto "Ley de Fortalecimiento de los Finanzas Públicas", expediente legislativo N° 20.580. Todo lo cual puede ser interpretado como que ya he anticipado criterio sobre algunos de los argumentos que pueden estar siendo objeto de la consulta facultativa de constitucionalidad de este proyecto, presento la inhibitoria en este expediente. […] " Manifiesta que la anterior gestión de inhibitoria fue aceptada por la Presidencia mediante resolución de las ocho horas y cincuenta minutos del dos de noviembre de dos mil dieciocho. Señala que si bien es cierto, los anteriores actos procesales fueron propios de la tramitación de una Consulta Legislativa, lo cierto del caso es que, la presente acción de inconstitucionalidad, versa sobre hechos y normas, que en su ocasión fueron consultados cuando formaban parte de un proyecto de ley, y que ahora son Ley de la República. En ese sentido, aduce que los alcances de la presente gestión, tampoco son novedosos para la Presidencia de esta Sala. Añade que, como se indicó anteriormente, el Magistrado Cruz Castro interpuso gestión de inhibitoria durante la tramitación de la Consulta Legislativa del proyecto de "Ley de Fortalecimiento de los Finanzas Públicas", de conformidad con los alcances anteriormente descritos, la cual fue aceptada en aquel entonces por la Presidencia; ahora bien, el propio Magistrado Cruz Castro, interpuso nuevamente gestión de inhibitoria en la tramitación de varias acciones de inconstitucionalidad (19-0004931-0007-CO, l9-006416-0007- CO, 19-008080-0007-CO y 19-008087-0007-C0), incoadas en contra de varias normas de la "Ley de Fortalecimiento de los Finanzas Públicas", aduciendo en identidad, los mismos argumentos de la inhibitoria interpuesta en la Consulta Legislativa (18-016546-0007-CO) que lo descrito en párrafos anteriores, y esa gestión fue aceptada por la actual Presidencia del Magistrado Fernando Castillo Víquez, mediante resolución de las diez horas y cuarenta y uno minutos de veinticuatro de mayo de dos mil diecinueve. Argumenta que, en otro orden de ideas, durante la tramitación de la Consulta Legislativa del proyecto sobre las reformas al régimen de pensiones y jubilaciones del Poder Judicial (17-017148-0007-CO), ella en su condición de Magistrada, interpuso gestión de inhibitoria, partiendo de hechos similares a la presente gestión y en dicha ocasión, la Presidencia de la mediante resolución de las diez horas cinco minutos del veintidós de marzo de dos mil dieciocho, rechazó la solicitud de separarla del conocimiento del caso en cuestión, ya que, de conformidad con los argumentos expuestos por el Magistrado Fernando Cruz Castro "Lo que expresó la magistrada Hernández López no constituye una opinión en la que se pronuncie sobre el contenido particular de la consulta. Sólo expone su confianza en las decisiones que adopte el parlamento sobre el tema del régimen de jubilaciones del Poder Judicial. Las manifestaciones de la magistrada no contienen ningún pronunciamiento específico sobre los temas que son objeto de esta consulta. En las condiciones particulares en que los magistrados titulares conocemos de este asunto, por imperativo de ley, las manifestaciones de la magistrada Hernández López no compromete su imparcialidad”.

Considera que no resulta comprensible que, los argumentos que ha venido sosteniendo para ser separada del conocimiento de la consulta supracitada, y ahora de la presente acción de inconstitucionalidad, no sean de mérito para acoger su inhibitoria, cuando los hechos que pone aquí en conocimiento, son de la misma naturaleza a los que dieron a lugar a la separación de los Magistrados Jinesta Lobo y Cruz Castro, en el sentido de que estos brindaron sus opiniones genéricas (y estas fueron reproducidas en diversos medios de comunicación) sobre la reforma al régimen de pensiones (Para el caso del primero) y jubilaciones del Poder Judicial y la reforma de la Ley de Fortalecimiento de las Finanzas Públicas (en relación con el segundo), al igual que lo hizo ella. Indica que no se puede perder de vista que, la nueva Reforma al Código Procesal Civil, incluyó dentro de las causales de impedimento (ver artículo 12, inciso 13 del Código Procesal Civil), el hecho de que el juez o jueza haya “externado, fuera de sus funciones, opinión a favor o en contra de alguna de las partes", la cual es una condición que no estaba prevista en el Código Procesal Civil que estaba vigente desde 1989. Argumenta que en el caso de la Consulta Legislativa, sobre el proyecto de ley de las reformas al régimen de pensiones y jubilaciones del Poder Judicial (17-017148-0007-CO) , ella expuso sobre la labor legislativa que, "Sobre el tema, tengo plena confianza en que la Asamblea Legislativa tomará decisiones informadas y respetuosas de la Constitución y la ley respecto al régimen de pensiones del Poder Judicial"; palabras que hacen referencia u opinión de una de las partes del proceso (nada menos que dando un voto de confianza), en dicho caso, de las y los legisladores que finalmente consultaron ante esta Sala el proyecto de ley. Pide que se note, en el caso en particular, que sus palabras expresadas sobre el proyecto de ley -mientras se encontraba en trámite la Consulta Legislativa, de las reformas al régimen de pensiones y jubilaciones del Poder Judicial-, fueron percibidas por las partes como una opinión, a tal punto que, incluso el Diputado Ottón Solís Fallas. externó: "Consultado sobre esto Ottón Solís, diputado del Partido Acción Ciudadana (PA C), destacó que hay magistrados que pueden considerarse "baluartes de la ética, que comprenden que no deben defender intereses propios como Nancy Hernández”. Aseguró que hay otros que sí van por lo suyo, "como la magistrada presidenta de la Corte quien se opone a los recortes". Debido a lo anterior, estima que no puede afirmarse válidamente que no se ha comprometido ya, la imagen de imparcialidad del Tribunal, o que no hay magistrados o magistradas suplentes con un nivel menor de conflicto, que puedan garantizar a las partes del proceso y al Tribunal, la imparcialidad debida. Señala que, en el caso en concreto, la opinión del aquel entonces diputado Ottón Solis, y las publicaciones en varios medios de comunicación anteriormente descritas, en su criterio, configura otra causal de impedimento, de conformidad con los alcances del nuevo Código Procesal Civil, descritos en el inciso 16 del artículo 12, el cual establece lo siguiente:

“ARTICULO 12.- Causales de impedimento. Son causales de impedimento:

16. La existencia de circunstancias que den lugar a dudas justificadas respecto de su imparcialidad u objetividad”.

Añade que en razón de esta última reforma del Código Procesal Civil citada, y del análisis de las gestiones de inhibitorias anteriormente descritas y que fueron aceptadas por la Presidencia de esta Sala, y especialmente, con el fin de asegurar a las partes accionantes "el ofrecimiento de garantías que descarten cualquier duda legítima respecto de la imparcialidad", capaces de erosionar la confianza en la justicia, se interpone la presente gestión de inhibitoria. Finalmente, manifiesta que entiende con claridad la encrucijada que representa este tema para la Sala y su legitimidad y, precisamente por ello, es que considera de la máxima importancia, dejar expresadas sus razones e informar a la Presidencia de la Sala para que se resuelva lo procedente sobre la causal invocada.

168.- Mediante resolución de las 9 horas 42 minutos del 10 de octubre de 2019, la Presidencia de la Sala Constitucional ejercida por el Magistrado Fernando Castillo Víquez, rechazó la anterior gestión planteada por la magistrada Hernández López y se dispuso mantenerla habilitada para conocer de este asunto, así como continuar con la tramitación del expediente.

169.- El 14 de noviembre de 2019 se apersona Mario Mena Ayales en su condición de representante legal de la Asociación Nacional de Empleados Judiciales (ANEJUD) para plantear incidente de recusación contra la Magistrada de la Sala Constitucional Nancy Hernández López y manifiesta que según consta en autos, en resolución de las 9 horas 07 minutos del 13 de febrero de 2019, para el conocimiento de esta acción de inconstitucionalidad, el Tribunal quedó integrado por los Magistrados Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, Jorge Araya García y los suplentes José Paulino Hernández Gutiérrez y Marta Esquivel Rodríguez. Indica que la Magistrada Hernández López formuló nueva inhibitoria y considera que, a partir de las palabras de esta Magistrada, se deriva que ha comprometido su rol de juzgadora del órgano contralor de constitucionalidad, considerando que no conviene que emita criterio mediante una sentencia en un asunto en el que ya, de antemano, expresó su posición de forma abierta y directa a los intereses del Legislativo, lo cual le genera un impedimento legal y moral que consecuentemente la obliga a separarse de conocer y votar sobre la inconstitucionalidad de la Ley. Añade que no obstante lo anterior, la Presidencia de la Sala Constitucional rechazó la nueva inhibitoria presentada por la Magistrada Hernández López y sobre ello, manifiesta que resulta legal, necesario, proporcional y correcto, la separación inmediata de la Jueza Nancy Hernández López del conocimiento de los asuntos que le han sido asignados con respecto al expediente 18-007819-0007-CO por haber adelantado criterio, no sólo ante los integrantes de la Sala Constitucional en las resoluciones citadas, sino a través de redes sociales y otros medios de comunicación. Considera que la magistrada brindó su opinión prematura con respecto al tema de fondo que se discute en este expediente y esto, sin duda alguna, violenta los principios de objetividad, imparcialidad, e independencia del Juez y pone en evidencia una posición subjetiva y unilateral a favor del Parlamento. Finaliza solicitando que de conformidad con lo indicado y en aplicación del artículo 8 de la Convención Americana sobre Derechos Humanos y el artículo 8 inciso 3) de la Ley Orgánica del Poder Judicial, se tenga por separada a la Magistrada Hernández López de conocer el expediente número 18-007819-0007-CO por asistirle el impedimento legal para tal labor en virtud de su adelanto de criterio.

170.- En resolución de la Presidencia de la Sala Constitucional de las 14 horas 52 minutos del 26 de noviembre de 2019, se le otorgó audiencia a la Magistrada Nancy Hernández en relación con la recusación presentada en su contra por la Asociación Nacional de Empleados Judiciales.

171.- Mediante escrito agregado a este expediente el 28 de noviembre de 2019, se apersona la Magistrada Hernández López para manifestar que los argumentos de la recusación presentada por la Asociación Nacional de Empleados Judiciales son los mismos argumentos que ella presentó oportunamente en su inhibitoria. Advierte que ha sido objeto de una campaña de acoso y desprestigio de parte de la ANEJUD que estima violatoria de su independencia como Jueza de la República y que ha pasado del insulto constante a la violación de su derecho a la intimidad. Indica que la acusan de “traidora”, “judas”, “escudera del Presidente de la Sala” y otras que insinúan que existen intereses ajenos al apego a la legalidad, es decir, ilegítimos, que motivan su línea de votación, tanto en el caso de las reformas al régimen de pensiones del Poder Judicial como a la Ley conocida como Plan Fiscal. Argumenta que los insultos e insinuaciones son poca cosa comparada con la violación de su intimidad personal y, en ese sentido, señala que estando incapacitada por una cirugía de un tema para ella delicado y sensible, quienes le recusan aprovecharon esa circunstancia para presionar, tratando de sacarla del proceso y reclamar el tiempo que iba a estar fuera de sus funciones, como un atraso indebido del expediente; manifestaciones que hicieron no sólo por escrito mediante gestión expresa en el expediente, sino en la reunión que le solicitaron al Presidente de la Sala al respecto, según la propia minuta de la reunión que se levantó y remitió por correo electrónico. Indica que de esa información sobre sus problemas de salud que motivaron su incapacidad por un tiempo prolongado, no existe constancia en el expediente, de tal forma que esa información sólo puede obtenerse de forma antiética cuando menos, ya que no fue obtenida ni solicitada formalmente. Considera que es parte del acecho y acoso del que ha venido siendo parte, y esa información trascendió, ya sea porque tuvieron acceso a su documento de incapacidad que se maneja en forma confidencial -solo para fines administrativos-, o porque andan averiguando su vida personal, lo cual es ajeno al proceso y que representa una intromisión indebida en su vida privada. Añade que gracias a esas manifestaciones, otras partes con acceso al expediente conocen que tuvo un problema de salud, lo cual es un aspecto que considera sensible. Señala que la privacidad sobre el hecho de si está enferma o no, es un derecho que le asiste como persona y el hecho de que ese hecho trascendiera fuera de su ámbito de intimidad y de las responsabilidades estrictamente legales al respecto para ser utilizado en su contra -durante su convalecencia inclusive-, para presionar en el expediente y en reunión sostenida con el Presidente de la Sala, lo considera como una presión indebida e innecesaria que ha afectado su ánimo y estado psicológico. Añade que, desde su perspectiva, la incapacidad de un funcionario o funcionaria público, es un dato que puede ser utilizado para fines oficiales únicamente y accedido por las personas responsables de su tramitación y verificación. Indica que, en su caso no se trataba de un hecho público y notorio y existen muchas incapacidades de integrantes de este Tribunal, que nunca han sido objeto de este tipo de manejo, inclusive en casos en que han intervenido las asociaciones aquí representadas. Añade que en la gestión en la que piden sacarla del proceso, también presentaron un pronto despacho que ya puso en conocimiento del pleno de la Sala. Indica que no comprende cómo un aspecto que está fuera de su control como lo es un quebrando inesperado de salud, pretenda ser utilizado en su contra para reclamar un atraso en el expediente. Estima que los insultos constantes en redes sociales y los hechos descritos en su conjunto, demuestran una hostilidad en su contra que constituye un patrón de presiones o injerencia indebida en el proceso. Argumenta que esta recusación, luego de que ella se había inhibido oportunamente, es un paso más, dentro del patrón descrito. Señala que independiente de las posiciones que como jueza o persona pueda tener, se compartan o no, con excepción de este caso, en los cientos de miles de casos que le ha correspondido conocer en su carrera, siempre había mediado el respeto; lo normal es que se ataque el argumento, no la persona, en cambio la estrategia de quienes la recusan, es todo lo contrario, atacar a la persona. Indica que la jurisprudencia de la Corte Interamericana sobre Derechos Humanos y las reglas de Bangalore, señalan que el juez o jueza tiene derecho a trabajar en un ambiente libre de presiones. Agrega que los principios básicos relativos a la independencia de la judicatura han señalado con claridad que “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” (el subrayado no es del original).

Argumenta que ninguna de las reglas citadas se ha respetado en este proceso. Solicita al Presidente de la Sala que reconsidere la inhibitoria originalmente presentada y que se le separe del conocimiento de este proceso.

172.- En escrito entregado en la Secretaría de la Sala el 5 de diciembre de 2019, se apersona Jorge Luis Morales García en su condición de Secretario General y apoderado generalísimo del Sindicato de la Judicatura (SINDIJUD), para formular incidente de recusación en contra de los Magistrados Nancy Hernández López, Paul Rueda Leal y Fernando Castillo Víquez, todos miembros de la Sala Constitucional. Señala que, en primer lugar, debe resaltar que con independencia de la conformidad o no que tengan con las resoluciones de la Sala, son respetuosos y defienden el principio de independencia judicial como baluarte de la democracia y elemento esencial para el Estado Social y Democrático de Derecho. Señala que por tal razón no comparten la posición asumida por ANEJUD en este proceso, en cuanto al ataque a los jueces constitucionales en forma personal y atentando contra el principio de independencia judicial, como lo ha argumentado la magistrada Nancy Hernández López. Señala que se separan total y rotundamente de esa posición que considera que los coloca, como intervinientes en este proceso, en una posición incómoda con la cual se ven obligados a interponer la recusación invocando lo señalado por la magistrada Hernández López de afectación al principio de imparcialidad en su vertiente objetiva y subjetiva. Indica que la magistrada aportó unas publicaciones que, respecto de las cuales les parece particularmente relevante la primera de ellas en donde se observa claramente que las referencias aludidas van dirigidas no sólo a la magistrada Nancy, sino igualmente a los magistrados Paul Rueda Leal y Fernando Castillo Víquez, pues aunque no se alude expresamente a sus nombres, la publicación se acota con contenido visual de tres fotografías, una de cada uno de ellos y con la referencia expresa en el texto de la publicación que literalmente se lee: "Y este es el caso de estos 3 magistrados de la Sala Constitucional …", es decir, no existe ninguna duda de que se refiere a los referidos por nombre. Señala que el principio de Independencia Judicial y su complemento de imparcialidad del juzgador, son principios básicos en la protección de los derechos fundamentales de la ciudadanía, esenciales en el funcionamiento del Estado de Derecho y en la garantía democrática, tan es así que son generalmente reconocidos a nivel de las regulaciones de Derechos Humanos. Añade que la Declaración Universal de Derechos Humanos reconoce como fundamental el principio de que toda persona tiene derecho, en condiciones de plena igualdad, a ser oída públicamente y con justicia por un tribunal independiente e imparcial, para la determinación de sus derechos y obligaciones o para el examen de cualquier acusación contra ella en materia penal (artículo 19 de la Declaración Universal de Derechos Humanos, proclamada por la Asamblea General de las Naciones Unidas el 10 de diciembre de 1948). Indica que esta cita es fundamental para los efectos que aquí interesan, pues claramente pone en evidencia que la intervención de la Magistrada Nancy Hernández López, ante un miembro del Congreso, en efecto establece una condición de duda o menoscabo a su imparcialidad, tal y como ella misma lo ha reconocido en forma reiterada durante este proceso, pues sus manifestaciones, cuando menos, generarían en un observador razonable, una apariencia de tal orden,".. de lograr aprobación parlamentaria o evitar la censura parlamentaria", pero además también aplica en este caso en donde una organización podría estar socavando esa independencia y afectando así la imparcialidad a través de cuestionamientos personales dirigidos a los magistrados que podrían poner en duda su objetividad a la hora de resolver este asunto. Considera que, tal y como la expresa en su contestación la Magistrada Nancy Hernández López, en su caso concreto concurren razones que justifican su separación del presente proceso en orden a consideraciones subjetivas y objetivas que ponen en duda su imparcialidad y afectarían el principio de independencia judicial. Añade que la aquí Magistrada Nancy Hernández López ha reconocido estar en el supuesto del "Comentario relativo a los Principios de Bangalore sobre la conducta judicial", que en su punto 2.5.1, en lo pertinente, literalmente dispone: “El juez tenga realmente predisposición o prejuicios para con una parte …”. Señala que tal y como se ha venido referenciando, en forma claramente justificada, la citada Magistrada Hernández López, ve en la conducta desarrollada por una de las partes que intervienen en este proceso, un ataque directo a su independencia judicial. Aduce que sobre este aspecto en el comentario 92 de los citados Principios de Bangalore se expresa: "La predisposición real debe ser personal y dirigirse hacia alguna de las partes considerada individualmente o como representante de un grupo. Para que un juez sea descalificado a causa de su predisposición, debe existir una prueba objetiva de que no puede entender del caso imparcialmente: ¿Un observador razonable, conociendo todas las circunstancias, abrigaría dudas de la imparcialidad del juez?". Indica que, en este caso, ante la confesión directa de la interpelada, está claramente demostrado que la actitud de una de las partes intervinientes en este proceso ha indispuesto de tal forma a la Magistrada, considerando las publicaciones en que se le cuestiona, como un ataque directo a su independencia judicial; ante dicho reconocimiento este punto de acreditación no requiere mayor prueba, es determinante, no sólo que en su caso se da esa "predisposición real" a que se alude en el citado instrumento de carácter internacional, sino que, como se pasa a considerar de seguido, dicha situación también resulta extendible, por la vía de la “suposición razonable de que existe predisposición" a los otros dos Magistrados respecto de los cuales, en esta ocasión, se interpone la recusación. Añade que en el Comentario 81 de los Principios de Bangalore sobre la conducta judicial se dice al respecto:

"EI criterio generalmente aceptado para la descalificación es la suposición razonable de que exista predisposición. Se han aplicado diversas fórmulas para determinar si puede suponerse la existencia de predisposición o prejuicio. Las fórmulas han ido desde "una alta probabilidad" de predisposición a "una real probabilidad", 'una posibilidad sustancial" y "una sospecha razonable' de predisposición. La suposición de que naya predisposición debe ser razonable y abrigarla personas razonables, de mente ecuánime y bien informadas que planteen el asunto y obtengan la información necesaria. El diagnóstico pertinente consiste en la siguiente pregunta: “¿Qué conclusión sacaría esa persona al examinar el asunto en forma realista y práctica, y habiéndolo estudiado a fondo? ¿Pensaría esa persona que es más probable que improbable que el juez, de ƒorma consciente o inconsciente, no decida con justicia ?" (...) Se postula la existencia del hipotético observador razonable de la conducta del juez para recalcar que el diagnóstico es objetivo, se funda en la necesidad de confianza pública en la judicatura y no se basa únicamente en la evaluación que otros jueces hagan de la capacidad o desempeño de un colega”.

Manifiesta que en este caso concreto, es claro que, ante el hecho notorio de que una de las juezas integrantes del Tribunal Constitucional expresamente alude a la existencia de una "predisposición real", por la manifestación de una de las partes del proceso en términos que califica de directo ataque a su independencia como juez, un "observador razonable" ¿cómo valoraría la situación de los otros dos Magistrados que se encuentran en una idéntica posición ante ese ataque, pues el mismo fue conjunto para los tres jueces? ¿Afecta esta situación la confianza pública?. Dice que en abono a este aspecto debe decir que su representada como parte en este proceso, no sienten real confianza en cuanto a que los Magistrados Paul Rueda Leal y Fernando Castillo Víquez, puedan abstraerse de ese tipo de manifestaciones y mantener depurado su criterio, igualmente a como lo ha valorado la también magistrada Hernández López y lo ha reconocido expresamente, incluso este es un elemento objetivo que acredita la capacidad de afectación que la conducta de ANEJUD podría tener sobre la situación de imparcialidad de los jueces Rueda Leal y Castillo Víquez. Manifiesta que, cual sea la opción que se asuma en el presente caso, indiscutiblemente desde la perspectiva de un "observador razonable", en el caso de los Magistrados Paul Rueda Leal y Fernando Castillo Víquez existe la "suposición razonable de la existencia de predisposición" que amerita su correspondiente recusación, en los términos que establece el comentario 90 a) de los Principios de Bangalore sobre la conducta judicial. Acota que la cita que se hace en la resolución de esta Sala Constitucional de las 9:42 horas del 10 de octubre de 2019, del "Comentario relativo a los Principios de Bangalore sobre la conducta judicial", comentario 100, es imprecisa y, por ello, inaceptable. Indica que lo que se expresó en dicha resolución por parte del aquí recusado Magistrado Fernando Castillo Víquez, como Presidente de la Sala al rechazar la inhibitoria de la Magistrada Nancy Hernández López fue:

"Sobre los Principios de Bangalore sobre Conducta Judicial, citados por la magistrada Hernández López, el comentario 100 precisa que "Ciertas circunstancias pueden hacer necesario que se deje de lado el principio [de imparcialidad] examinado más arriba. [Especialmente] en los tribunales de última instancia que tienen pocos magistrados e importantes funciones constitucionales y de apelación que no pueden delegarse en otros jueces" (EI resaltado no es del original). La jurisdicción constitucional costarricense, por las características descritas en el considerando anterior, se encuentra en este último supuesto de excepción previsto por los mismos principios".

Afirma que no es correcta la cita, que hace una interpretación extensiva e improcedente del comentario, el texto original y con su contexto dispone:

"Aspectos que no constituyen "interés económico” 99. El interés económico no se extiende a los títulos o participación que un juez puede tener, por ejemplo, en fondos mutuos o comunes de inversión, a los depósitos que un juez puedo mantener en instituciones financieras, asociaciones de ahorro mutuo o mutuales de crédito, o a los títulos emitidos por el gobierno que posea el juez, a menos que el proceso judicial pueda afectar sustancialmente al valor de esos títulos o participación. Tampoco procede una descalificación si el juez es un simple cliente que realiza operaciones ordinarias con un banco, compañía de seguros, sociedad de tarjetas de crédito u otras empresas similares que sean parte de un juicio en el que no esté pendiente ninguna controversia o transacción especial que afecte al juez. El hecho de que una organización educativa, de caridad o cívica en la que se desempeñe el cónyuge, un pariente o hijo del juez como director, funcionario, asesor o en otra calidad posea títulos financieros no significa, dependiendo de las circunstancias, que el juez tenga un interés económico en esa organización. Del mismo modo, en los juicios con consecuencias financieras sumamente secundarias y remotas en el momento de la sentencia, cabe esperar que el diagnóstico correspondiente no se traduzca generalmente en la descalificación. Sin embargo, en esos casos puede ser prudente que el juez informe a las partes de cualquiera de esas circunstancias y deje constancia del asunto en una audiencia abierta de manera que las partes, y no solamente los abogados, estén informadas. A veces los clientes legos son más suspicaces y menos confiados que los colegas profesionales del juez. Lo anterior teniendo en cuenta que no será necesaria la descalificación de un juez si no puede constituirse otro tribunal para conocer del caso o cuando, por circunstancias urgentes, la no-participación del juez puede producir una denegación de justicia grave.

Comentario Doctrina de la necesidad 100. Ciertas circunstancias extraordinarias pueden nacer necesario que se deje de lado el principio examinado más arriba. La doctrina de la necesidad permite a un juez que de otro modo debería abstenerse o seria recusado conocer de una causa y fallarla cuando, de no hacerlo, pudiese producirse una injusticia. Esto puede suceder cuando no haya otro juez razonablemente disponible que no esté igualmente descalificado o si una postergación o juicio inconcluso causaría problemas muy graves o si el tribunal no pudiese constituirse para entender del asunto correspondiente y fallarlo si el juez en cuestión no participara . Por cierto, tales casos serán de rara y especial ocurrencia. No obstante, pueden surgir cada cierto tiempo en los tribunales de última instancia que tienen pocos magistrados e importantes funciones constitucionales y de apelación que no pueden delegarse en otros jueces" Indica que, como puede verse, hay dos cosas que apuntar a la cita que se realiza en la resolución de comentario: en primer término se omite la clara referencia a que se trata de "circunstancias extraordinarias", además se sustituye la frase "el principio examinado más arriba”, por el "principio de imparcialidad". Indica que, prácticamente exceptuando a la jurisdicción constitucional de respetar el derecho humano consistente en ser juzgado por un juez imparcial. Señala que dicha interpretación de entrada resulta realmente difícil de aceptar, incluso incoherente con el normal funcionamiento de la Sala Constitucional, pues, precisamente, para el conocimiento de la presente acción se reconoce incluso la separación definitiva del Magistrado Cruz Castro, así como en su momento de Jinesta Lobo. Es decir, indica que se deja librado al antojo el si se le da o no contenido a la tutela del principio de imparcialidad, lo que realmente contraría el principio de interdicción de la arbitrariedad, también desarrollado en el ámbito de la jurisprudencia de la Sala Constitucional. Manifiesta que desde la perspectiva de su representada y por eso se hizo la cita amplia del comentario, lo expresado en el número 100 debe de verse en relación al principio 2.5.3 "El juez, o algún miembro de su familia, tenga un interés económico en el resultado del asunto sujeto a controversia", precisamente en orden a que en dichos supuestos establecer la posibilidad de que "excepcionalmente", aún y cuando exista un interés económico del juez, se podría mantener en el conocimiento de la causa para evitar un grave perjuicio a las partes. Aduce que, en efecto, este aspecto, se ve reforzado si se atiende al formato empleado por el documento que contiene el "Comentario relativo a los Principios de Bangalore sobre la conducta judicial", en donde se enuncia el valor y luego se desglosan los principios, siendo el valor "imparcialidad”; es decir, lo que se apunta como una excepción no es al "valor", sino a uno de los principios que se deriva de éste. Manifiesta que en esta misma línea se debe acotar que la interpretación realizada por el Magistrado Castillo Víquez, no resistiría una confrontación con la condena sufrida por Costa Rica en el caso de Mauricio Herrera en contra del Estado Costarricense, pues en aquella oportunidad la Corte Interamericana de Derechos Humanos resolvió:

"172. Como ha quedado probado, en el proceso penal contra el periodista Mauricio Herrera Ulloa se interpuso el recurso de casación en dos oportunidades (supra párr. 95. r y 95. w). La Corte observa que los cuatro magistrados titulares y el magistrado suplente que integraron la Sala Tercera de la Corte Suprema de Justicia al decidir el 7 de mayo de 1999 el recurso de casación interpuesto por el abogado del señor Félix Przedborski contra la sentencia absolutoria, ƒueron los mismos que decidieron el 24 de enero de 2001 los recursos de casación interpuestos contra la sentencia condenatoria por el abogado defensor del señor Mauricio Herrera Ulloa y apoderado especial del periódico 'La Nación", y por los señores Herrera Ulloa y Vargas Rohrmoser; respectivamente (supra párr. 95. y).

173. Cuando la Sala Tercera de la Corte Suprema de Justicia resolvió el primer recurso de casación anuló la sentencia casada y ordenó remitir el proceso al tribunal competente para su nueva sustanciación, con base en que, inter alía, "la fundamentación de la sentencia no se presenta como suficiente para descartar racionalmente la existencia de un dolo directo o eventual (respecto a los delitos acusados)" (supra párr. 95. s).

174. Los magistrados de la Sala Tercera de la Corte Suprema de Justicia debieron abstenerse de conocer los dos recursos de casación interpuestos contra la sentencia condenatoria de 12 de noviembre de 1999 porque, considera esta Corte, que al resolver el recurso de casación contra la sentencia absolutoria de 29 de mayo de 1998, los mismos magistrados hablan analizado parte del ƒondo, y no solo se pronunciaron sobre la ƒorma. 175. Por las anteriores consideraciones, la Corte concluye que los magistrados de la Sala Tercera de la Corte Suprema de Justicia, al resolver los dos recursos de casación interpuestos contra la sentencia condenatoria, no reunieron la exigencia de imparcialidad. En consecuencia, en el presente caso el Estado violó el artículo 8.1 de la Convención Americana en relación con el articulo 1.1 de la misma, en perjuicio del señor Mauricio Herrera Ulloa". (Corte Interamericana de Derechos Humanos, Caso Herrera Ulloa Vs. Costa Rica, Sentencia de 2 de julio de 2004).

Indica que, es claro que en aquél caso, no resultó suficiente que la Sala Tercera de Casación fuera el único Tribunal que tenía dicho cometido y que el alto Tribunal Internacional determinó que aún en esos supuestos debía garantizarse el Derecho Humano fundamental de imparcialidad del juzgador. Sobre este particular, señala que es evidente que los aquí recusados ya intervinieron en una resolución de esta Sala Constitucional en donde emitieron criterio sobre la consulta de constitucionalidad que dio origen precisamente al texto que hoy se conoce mediante la acción de inconstitucionalidad planteada por su representada, abonándose dicha situación a lo ya expuesto para tenerlos por debidamente recusados e incapacitados para emitir una resolución de fondo en este asunto, en resguardo del principio de imparcialidad, sobre el cual la Sala ya se ha pronunciado. Argumenta que se entiende y se apoya claramente la posición de la Magistrada Hernández López, quien en forma honesta y transparente ha hecho ver una circunstancia que, en efecto, alcanza a otros magistrados y, a su representada como co intervinientes en este proceso que, por razones coyunturales, fueron llamados a este proceso en virtud de la acumulación de procesos. Manifiesta que las pretensiones que se plantean en este caso, son de un colectivo que representa, se ven ahora en el predicamento de que tengan que ser resueltas por jueces, como es el caso de la Magistrada Nancy, que se han visto atacados por una de las partes en un elemento esencial del juzgador como lo es el principio de la Independencia Judicial. Añade que, en este caso, por haber sido objeto de discusión específico dentro de este proceso, no es posible ignorar, el caso de los señores Magistrados Paul Rueda Leal y Fernando Castillo Víquez, quienes igualmente, han sido objeto de esos cuestionamientos, por uno de los accionantes del proceso y, definitivamente, tal tipo de interpelación, hace que su resolución final pueda estar mediatizada por las implicaciones que ese ataque genera. Considera que así se establece una nube de duda sobre la objetividad que podrían tener dichos juzgadores a la hora de emitir la resolución final, no pudiendo tener confianza su representada como parte en este proceso, en cuanto a que sus resoluciones se hagan con abstracción de ese ataque, lesionándose así en forma genérica el valor de imparcialidad invocado. Solicita que se acoja la recusación planteada contra los magistrados Hernández López, Rueda Leal y Castillo Víquez por considerar que les asiste un impedimento legal y convencional para seguir conociendo de este asunto; en consecuencia, que se les separe y se designe a los sustitutos respectivos que por turno corresponden, a la brevedad posible, dada la urgencia de que se resuelva esta acción de inconstitucionalidad, ello por cuanto la vacatio de la reforma ya se extinguió y a partir de diciembre del 2019 se estarían dando afectaciones concretas a los derechos de las personas que tendrían expectativas de jubilarse con la legislación anterior, en caso de acogerse los argumentos de inconstitucionalidad esbozados.

173.- En resolución de la Presidencia de la Sala Constitucional de las 8 horas 44 minutos del 5 de diciembre de 2019, se rechazó la solicitud de recusación planteada por el Presidente de ANEJUD en contra de la Magistrada Hernández López, se le declaró habilitada y se dispuso continuar con la tramitación del expediente.

174.- Mediante resolución de la Presidencia ai. de la Sala Constitucional ejercida por el Magistrado Luis Fernando Salazar Alvarado de las 8 horas 50 minutos del 10 de diciembre de 2019, se les otorgó audiencia a la Magistrada Hernández López, y a los Magistrados Castillo Víquez y Rueda Leal para que se refirieran a la recusación presentada por el representante de SINDIJUD.

175.- En documento presentado el 11 de diciembre de 2019 se apersona la Magistrada Nancy Hernández para señalar que rechaza la recusación presentada porque se basa prácticamente en los mismos argumentos que presentó oportunamente en su inhibitoria en este expediente, y que fue rechazada, de forma tal que no le asiste impedimento legal. Añade que remite al escrito presentado en el que justificó su inhibitoria.

176.- Mediante documento presentado en la Secretaría de la Sala el 11 de diciembre de 2019, se apersona el magistrado Fernando Castillo Víquez en atención a la audiencia que le fuera conferida para referirse a la recusación que fue interpuesta en su contra por el secretario general del Sindicato de la Judicatura (SINDIJUD). Indica que, de la lectura de ese documento, el único argumento que se plantea para solicitar su separación de este asunto, radica en la existencia de una publicación hecha por la ANEJUD en la que se hace referencia a su persona y que, a su parecer, genera una suposición razonable de que existe predisposición y por ende, se afecta el principio de imparcialidad. Considera que aceptar la tesis planteada por el accionante, resultaría sumamente peligroso toda vez que cuando una persona que tiene interés en un caso interpuesto ante la Sala, no quiera que un magistrado propietario participe en su resolución, bastaría con que planteara algún tipo de cuestionamiento en su contra para pedir su separación, bajo el argumento de que dicho juzgador no cumpliría con el principio de imparcialidad. Argumenta que ello es una situación que no puede aceptarse de ninguna forma en un Estado Constitucional de Derecho ya que conllevaría a crear un “Tribunal a la Carta” conforme los intereses de las partes; situación que provocaría no sólo una lesión al principio de independencia del Juez constitucional, sino además, eventuales cambios en la línea jurisprudencial de la Sala en temas relevantes para el país, vulnerándose así el principio de seguridad jurídica. Añade que los cuestionamientos que hace una organización social a las diferentes posiciones que asumen los magistrados de ese Tribunal, son parte del ejercicio de la libertad de expresión propios de una sociedad democrática, abierta, donde una de las características es la libre circulación de la información y de las expresiones, las cuales imponen el respeto de todos sus integrantes. Considera que la recusación planteada debe rechazarse.

177.- El Magistrado Rueda Leal se apersona en escrito presentado en la Secretaría de la Sala el 12 de diciembre de 2019 para pronunciarse en relación con la solicitud de recusación planteada en su contra por el secretario general y apoderado generalísimo del Sindicato de la Judicatura (SINDIJUD). Señala que los fundamentos que sustentan la recusación, no son atribuibles a actuaciones de su persona, sino que únicamente refieren al hecho de haber sido objeto de publicaciones -que quien lo recusa califica como cuestionamientos o ataques- por parte de uno de los accionantes de este proceso. Agrega que los argumentos expuestos en la recusación con respecto a su imparcialidad e independencia merced a tales publicaciones, constituye una mera suposición. Agrega que si bien ha tenido conocimiento de varias manifestaciones públicas sobre su persona por parte de algunos sindicatos o de sus miembros, no menos cierto es que también ha indicado públicamente que respeta la libertad de expresión de ellos, pilar del sistema democrático, de ahí que su imparcialidad e independencia en el ejercicio del cargo, en modo alguno, se ve menoscabada merced a los comentarios críticos que algunos emitan en relación con alguna resolución jurisdiccional. Manifiesta que le parece nefasto para el Poder Judicial que a un juez se le separe de un proceso por el simple hecho de haber sido objeto de alguna manifestación pública en su contra; de acogerse la solicitud formulada, sin lugar a duda, se corre el riesgo de abrir un portillo a las partes para que, a través de la propalación de insultos, a su antojo, remuevan libremente a cualquier persona juzgadora o cambien la conformación de un tribunal colegiado. Argumenta que, por las anteriores razones, no comparte los argumentos de quien le recusa y considera que no existe ninguna causal que le imposibilite resolver el sub iúdice.

178.- Mediante escrito presentado el 13 de diciembre de 2019 se apersona Jorge Luis Morales García en su condición de Secretario General y apoderado generalísimo del Sindicato de la Judicatura (SINDIJUD), y señala que, vistas las manifestaciones de los interpelados con la recusación formulada, debe hacer algunas consideraciones que pide que sean tomadas en cuenta a la hora de resolver esta recusación. Manifiesta que en primer lugar, no es él quien arguye la existencia de un ataque a la independencia judicial de los magistrados, sino que esa fue una expresa, concreta y contundente manifestación de la Magistrada Nancy Hernández, siendo ella quien trajo a la palestra este importante y determinante concepto, recogido en el Comentario a los Principios de Bangalore sobre la conducta judicial. Agrega que también es dicho instrumento de derecho internacional el que define los alcances de una “suposición razonable de predisposición”, fundada en este caso, no en el comentario crítico de uno de los intervinientes, ni en el ejercicio de la libertad de expresión de las partes, sino en el expreso reconocimiento de la Magistrada Nancy Hernández López que, en su caso califica como una “predisposición real” a la luz de la literalidad del documento internacional invocado. Manifiesta que un tema que expresamente se planteó en el escrito de interposición que planteó su representada, que soslayaron todos los recusados, consiste en que todos y cada uno de ellos ya emitieron criterio en cuanto a la resolución de este proceso al evacuar la consulta legislativa en la tramitación de esta ley y sólo ese hecho sería suficiente motivo para acoger, a la luz del valor de la imparcialidad y conforme a los parámetros definidos por la normativa internacional, para la separación de éstos del conocimiento de este proceso con el fin de asegurar adecuadamente y a la luz de las exigencias de los derechos humanos, la imparcialidad como garantía de Administración de Justicia. Señala que, por lo dicho, considera la procedencia de la recusación planteada así como también que los alegatos de los interpelados no son de recibo.

179.- En resolución de las 8 horas 15 minutos del 22 de enero de 2020, la Presidencia a.i. de la Sala Constitucional ejercida por el Magistrado Luis Fernando Salazar Alvarado, rechazó la solicitud de recusación planteada por el representante del Sindicato de la Judicatura en contra de los Magistrados Castillo Víquez, Rueda Leal y la Magistrada Hernández López, disponiendo que se les declara habilitados para conocer de este proceso así como también que se continuara con la tramitación del expediente.

180.- El 4 de febrero de 2020 se apersona Danilo Eduardo Ugalde Vargas en su condición de apoderado especial judicial para informar de un hecho nuevo así como también para presentar un análisis de los argumentos brindados por las autoridades consultadas por la Sala y los esgrimidos por algunos coadyuvantes. Indica que por primera vez en la Corte Interamericana de Derechos Humanos, en la sentencia del caso Muelles Flores contra el Estado de Perú, se pronunció sobre el derecho a la seguridad social y en particular, el derecho a la pensión de manera autónoma, al amparo del artículo 26 de la Convención Americana de Derechos Humanos, es decir, como parte del compromiso de los Estados de adoptar providencias para lograr progresivamente, plena efectividad de los derechos que se deriven de las normas económicas, sociales, educación, ciencia y cultura que se deriven de la Carta de las Organizaciones Sociales de la Organización de Estados Americanos. Indica que esa Corte reconoció por primera vez en la jurisprudencia del sistema de justicia americano que, dentro de los derechos humanos, se encuentra la seguridad social y las pensiones como derechos autónomos y justiciables por tener asidero en la Carta de la OEA en los artículos 3 j) y 45 b). Indica que de los distintos enunciados de la sentencia se deduce que el derecho a la seguridad social tiene como finalidad asegurar a las personas una vida, salud y niveles económicos decorosos en su vejez, o ante eventos que las priven de su posibilidad de trabajar, es decir, en relación con eventos futuros que podrían afectar el nivel y calidad de sus vidas. Concluye la Corte que la seguridad social es un derecho que busca proteger al individuo de contingencias futuras, que de producirse ocasionarían consecuencias perjudiciales para la persona, por lo que deben adoptarse medidas para protegerla. Manifiesta que también indicó que la pensión de vejez es una especie de salario diferido del trabajador, un derecho adquirido luego de una acumulación de cotizaciones y tiempo laboral cumplido. Agrega que la Corte Interamericana manifestó que el Comité de Derechos Humanos Sociales y Culturales de las naciones Unidas consideró en la Observación General No. 19 sobre el derecho a la seguridad social indicó que este derecho abarca el obtener y mantener prestaciones sociales, ya sea en efectivo o en especie, sin discriminación, con el fin de obtener protección, en diversas circunstancias, en particular por la falta de ingresos procedentes del trabajo debido a la vejez, incluyéndose en esa observación que el derecho a la seguridad social incluye el derecho a no ser sometido a restricciones arbitrarias o poco razonables de la cobertura social existente, ya sea del sector público o del privado, así como del derecho a la igualdad en el disfrute de una protección suficiente contra los riesgos e imprevistos sociales. Agrega que la Corte Interamericana consideró que aquella observación contenía los siguientes elementos de la seguridad social: disponibilidad, riesgos e imprevistos sociales, nivel de suficiencia, accesibilidad y relación con otros derechos. Indica que la Corte considera que la naturaleza y alcance de las obligaciones que derivan de la protección de la seguridad social, incluyen aspectos que tienen una exigibilidad inmediata, así como aspectos que tienen un carácter progresivo, imponiéndose la obligación de no regresividad frente a la realización de los derechos alcanzados. Agrega que para la Corte, cuando se suprime el pago de la pensión en curso, ocasiona que las personas adultas mayores sienten un menoscabo en su dignidad, pues en su vida la pensión constituye la única o principal fuente de ingresos para solventar las necesidades básicas y que dicha situación de impago de la pensión, implicaba una angustia, inseguridad e incertidumbre en cuanto al futuro de una persona adulta mayor por la ausencia de recursos económicos para la subsistencia, lo que afecta la calidad de vida y la integridad personal. Manifiesta que la Corte ha señalado que uno de los beneficios que derivan de la seguridad social, incluido el derecho a una pensión de vejez, forman parte del derecho de propiedad y por tanto deben estar protegidos contra la interferencia arbitraria del Estado; derecho que se incorpora al patrimonio del pensionado. Indica que el primer aporte de esta sentencia es que ratifica que el derecho a la seguridad social, a la jubilación y pensión son derechos humanos, por lo que le corresponde a la Sala reestablecer el goce de aquellos derechos cuando hayan sido violados o quebrantados con la promulgación de la Ley 9544. Señala que con sustento en las funciones que tiene la Sala a partir de lo dispuesto en el artículo 48 de la Constitución Política, solicita que se reconozca la nulidad de la Ley 9544 y de la tramitación del proyecto de ley No. 19.922 en relación con las normas cuestionadas por sus poderdantes, por ser contrarias a los derechos humanos a la seguridad social, la jubilación, la pensión y el derecho de propiedad, los cuales fueron groseramente conculcados al establecer tributos en forma de impuestos, cargas y contribuciones especiales y solidarias, que limitaron el goce de derechos previamente declarados y en disfrute que forman parte de los expresamente reconocidos por la Corte Interamericana de Derechos Humanos, como lo son: a) que la seguridad social deberá ser ejercida de modo tal que garantice condiciones para asegurar la vida, la salud y un nivel económico decoroso de las personas; b) que las pensiones constituyen una especie de salario diferido del trabajador, un derecho adquirido luego de una acumulación de cotizaciones y tiempo laboral cumplido; c) que el derecho a la seguridad social, la jubilación o la pensión no debe ser sometido a restricciones arbitrarias o poco razonables de la cobertura social existente, ya sea del sector público o del privado; d) que la seguridad social como sistema de protección social, lleva implícito una obligación de progresividad, lo que significa que los Estados, tienen la obligación concreta y constante de avanzar, lo más expedita y eficazmente posible hacia la plena efectividad de dicho derecho, en la medida de sus recursos disponibles, por vía legislativa u otros medios apropiados; e) como derecho relacional al principio de progresividad, también se considera que existe una obligación de no regresividad frente a la realización de los derechos alcanzados, en virtud de la cual, las obligaciones convencionales de respeto y garantía, así como de adopción de medidas de derecho interno que resultan fundamentales para alcanzar su efectividad, f) que la pensión y jubilación encuadra dentro de un concepto amplio de propiedad privada, que abarca cosas materiales o intangibles por igual, por lo que desde que un trabajador paga sus contribuciones a un fondo de pensiones y deja de prestar servidos a la institución, para acogerse al régimen de jubilaciones previsto en la ley, adquiere el derecho a que su pensión se rija, en los términos y condiciones previstas en la ley de origen, por los efectos patrimoniales que se deriva de ese acto jurídico. Indica que si se analizan los derechos y principios presentes en los Tratados Internacionales de los derechos humanos, en torno al concepto y alcance de la seguridad social, la jubilación y pensión, los cuales por primera vez fueron reconocidos por la CIDH, como derechos humanos autónomos y justiciables en la sentencia de Muelles Flores vs Perú y los contraponemos, a la luz de la reforma al régimen de pensiones y jubilaciones del Poder Judicial introducida por la Ley N°9544, se llega a la ineludible conclusión, de que la reforma, mediante la cual se podría limitar el derecho de jubilación o pensión, durante la etapa de disfrute a un 45% del monto original otorgado, es claramente contraria a los derechos humanos derivados de la seguridad social, jubilación y pensión recogidos por los convenios internacionales, que se citaron en aquella jurisprudencia de la CIDH, por lo que no se pueden sostener como normas vigentes dentro del ordenamiento, siendo la Sala Constitucional la llamada a anular dicha ley. De conformidad con lo indicado, considera que es claro que los artículos 236 y 236 bis de la Ley N°9544 resultan ser contrarios al derecho convencional internacional en cuanto, constituyen normas regresivas de la de la seguridad social, jubilación y pensión, por cuanto quebrantan los derechos adquiridos a pensionados que reciben salarios diferidos en la pasividad laboral, por haber contribuido y adquirido un derecho de retiro por el régimen del Poder Judicial al imponer restricciones arbitrarias y poco razonables, a las pensiones en curso de pago, disfrazadas de tributos, pero en todo caso afectado el derecho de propiedad de los ex funcionarios del Poder Judicial que se acogieron a su derecho jubilatorio antes de la reforma introducida por la Ley N°9544. Indica que los artículos 236 y 236 bis de la Ley N°9544 no solo quebrantan el ordenamiento internacional de los derechos humanos, sino que es contraria a lo dispuesto por nuestra Constitución Política, conforme el criterio reiterado por la Sala Constitucional al analizar normas internacionales que amplían el espectro de los derechos del ordenamiento local. Agrega que en Costa Rica hay que considerar el contenido del artículo 73 de la Constitución Política y que el principio de progresividad de la seguridad social y de los seguros sociales, dentro de los que se encuentran las pensiones y jubilaciones, está presente en el ordenamiento Constitucional de Costa Rica, y que los argumentos esgrimidos por la Procuraduría General de la República y la Presidencia del directorio de la Asamblea Legislativa al referirse a la audiencia conferida por la Sala Constitucional dentro de la presente Acción de inconstitucionalidad, son abiertamente contrarios al principio de progresividad, a los derechos adquiridos y de pensión o jubilación, como parte del derecho de propiedad de los jubilados, en los términos que ha dispuesto la CIDH en la sentencia de Mulles Flores vs Perú. Recuerda que el principio de no regresividad de la seguridad social es un parámetro adecuado para el análisis de la vulneración de los derechos humanos, especialmente cuando existe algún reconocimiento de instrumentos jurídicos e institucionales orientados a asegurar, a distintos niveles, la protección de los derechos o la equiparación y la interdependencia de todas las categorías de derechos relacionados. Señala que la prohibición de regresividad de los derechos sociales, implica que las leyes no deben empeorar la situación de regulación del derecho vigente, desde el punto de vista del alcance y amplitud del goce de los derechos sociales. Indica que en el caso de los derechos sociales, el principio de no regresividad de una norma legal supone que hay una presunción de invalidez o de inconstitucionalidad de la norma que restringe los derechos y transfiere al Estado la carga de demostrar la razonabilidad, proporcionalidad, idoneidad, necesidad y/o proporcionalidad de la norma que se cuestiona. Indica que, en el caso concreto, amparados a la escasez de recursos financieros del Estado, se pretende justificar que jubilados con pensiones en curso de pago, vean limitado su derecho a recibir una prestación actual hasta en un 45%, desarrollando nuevas formulaciones teóricas e inconstitucionales donde se establecen tributos exagerados, crecientes para disminuir los presupuestos para el pago de pensiones del Poder Judicial. Advierte que en la tramitación del proyecto No. 19.922 no se demostró que los cambios eran la única vía para la sobrevivencia o sostenibilidad del régimen, sin que se justifique la regresividad de las normas que se imponen en el tanto establecen contribuciones en forma de tributos así como el límite máximo de cotización de un 55% del monto declarado al momento del otorgamiento. Se opone a los informes rendidos por la Asamblea Legislativa y por la Procuraduría General de la República y finaliza solicitando acoger la Acción de inconstitucionalidad y declarar nulos los artículos 236 y 236 bis de la Ley N°9544 por ser contrarios a los Convenios Internacionales que tutelan los derechos humanos citados por la Corte Interamericana de Derechos Humanos en la resolución de Mulles Flores vs Perú.

181.- En escrito presentado el 15 de abril de 2020 se apersona la Magistrada Suplente Marta Esquivel para separarse del conocimiento de este proceso debido a que la Asamblea Legislativa designó magistrada titular en la plaza que estaba ocupando por lo que cesó su nombramiento y desapareció el motivo de su habilitación para conocer este caso. Solicita que se pasen a los autos a la Presidencia de la Sala para que se resuelva lo que corresponda.

182.- En resolución de la Presidencia de la Sala Constitucional de las 9 horas del 15 de abril de 2020, se tuvo por separada del conocimiento de este asunto a la magistrada suplente Marta Esquivel y se declaró habilitada para conocer este asunto a la Magistrada Anamari Garro Vargas.

183.- El 24 de abril de 2020, la magistrada titular Anamari Garro Vargas solicita que se le tenga inhibida de conocer este expediente por cuanto su hermano es Juez Superior de Trabajo y cotiza para el Régimen del Poder Judicial, así como también porque su tía materna, es pensionada de este régimen, considerando que lo que aquí se resuelva, afecta directamente a la esfera de ambos parientes a quienes le une un vínculo de consanguinidad, por lo que hay un interés directo en la resolución del proceso y por la cual hay se le había separado del conocimiento de este expediente el 3 de agosto de 2018. Indica que ahora, al haber sido designada magistrada titular de este Tribunal, las anteriores circunstancias se ven reforzadas por cuanto ahora es cotizante activa de ese régimen desde el 12 de febrero de 2020. Indica que por tal razón solicita que se le tenga inhibida para el conocimiento de esta acción.

184.- En resolución de la Presidencia de la Sala Constitucional de las 9 horas 57 minutos del 27 de abril de 2020, se rechazó la gestión planteada por la Magistrada Anamari Garro y se le declaró habilitada para conocer este asunto, disponiéndose continuar con la tramitación del expediente.

185.- En documento del 28 de abril de 2020, la Magistrada Anamari Garro solicita que se reconsidere la anterior resolución que rechazó su solicitud y que se le inhiba del conocimiento de este expediente.

186.- El 4 de mayo de 2020 la Magistrada Garro Vargas presenta documento con adición a la gestión que planteó para que se reconsiderara el rechazo de la inhibitoria que presentó.

187.- Mediante escrito presentado en la Secretaría de la Sala el 14 de mayo de 2020, se apersona el accionante Danilo Eduardo Ugalde Vargas en su condición de apoderado especial judicial de los sen~ores: Alfredo Jones Leo´n, Rodrigo Montenegro Trejos, Alfonso Chaves Rami´rez, Anabelle Leo´n Feoli, Ana Virginia Calzada Miranda, Eva Mari´a Camacho Vargas, Rafael A´ngel Sanabria Rojas, Mario Alberto Houed Vega, Rolando Vega Robert, Adria´n Vargas Benavidez, Eduardo Sancho Gonza´lez, Rosa Iris Gamboa Monge, Magda Lorena Pereira Villalobos, Alejandro Lo´pez Mc Adam, Lupita Chaves Cervantes, Milena Conejo Aguilar, Francisco Segura Montero, Jorge Rojas Vargas, A´lvaro Ferna´ndez Silva, Luis Fernando Solano Carrera y Oscar Luis Fonseca Montoya, y solicita que por conexidad se declare la inconstitucionalidad de los artículos 1, 2 inciso d), 4 inciso b), 5 y 7 de la Ley No. 9796. Señala que el pasado 20 de diciembre del 2019, en el Alcance N°286, Gaceta N°243, se publico´ la Ley N° 9796 que fue tramitada bajo el expediente legislativo N° 21.035, mediante la cual se redisen~a y redistribuyen los recursos de la contribucio´n especial y solidaria sobre los regi´menes de pensiones especiales contenidos en los arti´culos: 3 de la Ley Nº 9383 Ley Marco de Contribucio´n Especial de los Regi´menes de Pensiones de 29 de julio de 2016; 236 bis de la Ley Nº 8 Ley Orga´nica del Poder Judicial de 29 de noviembre de 1937 y 71 de la Ley Nº 2248 Ley de Pensiones y Jubilaciones del Magisterio Nacional de 5 de setiembre de 1958, que contemplan los regi´menes del Poder Judicial y el Magisterio Nacional. Indica que esa Ley N°9796, conocida como la “Ley para redisen~ar y redistribuir los recursos de la contribucio´n especial solidaria”, afecta ese tipo de contribucio´n de varios regi´menes especiales pu´blicos de primer pilar, incluido el del Poder Judicial, recie´n reformado por el arti´culo 236 bis de la Ley N°9544 que han acusado de inconstitucional por violacio´n de normas y principios constitucionales, tanto por la forma como por el fondo; vicios que se produjeron en el proceso de creacio´n de la ley de acuerdo con la Accio´n de Inconstitucionalidad presentada por esta representacio´n en favor de 21 pensionados del re´gimen de Poder Judicial y que se tramita bajo el expediente 18-014168- 0007-CO, acumulado a este expediente Nº 18-007819-0007-CO. Manifiesta que existe una conexidad o consecuencia entre lo dispuesto por el arti´culo 236 bis de la Ley N°8 reformado e introducido por la Ley N°9544, y los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796, por cuanto son normas que regulan la misma situacio´n fa´ctica: obligar a los pensionados y jubilados a cotizar montos mayores, por haberse disminuido el monto exonerado y como consecuencia de ello, aumentar los montos de contribucio´n especial solidaria, que debera´n aportar sus patrocinados. Considera que sería ineficaz una sentencia estimatoria que anule el numeral 236 bis introducido por la Ley N°9544 al reformar la Ley Orga´nica del Poder Judicial, si quedan vigentes los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la referida Ley N°9796. Recuerda que el arti´culo 89 de la Ley de la Jurisdiccio´n Constitucional establece que la sentencia que declare la inconstitucionalidad de una norma o ley, declarara´ tambie´n la de los dema´s preceptos de ella cuya anulacio´n resulte evidentemente necesaria por conexio´n o consecuencia. Argumenta que, en relacio´n con los supuestos necesarios para que exista anulacio´n por conexidad o consecuencia, la Sala Constitucional en la sentencia 2001-04026, de las 14 horas 53 minutos del 16 de mayo del 2001, indico´:

“Debe recordarse que la anulacio´n de una norma por conexidad procede excepcionalmente cuando ello se impone como consecuencia irremediable de la sentencia estimatoria, pues de lo contrario e´sta no podri´a desplegar sus efectos si existe en el ordenamiento otra norma que hace subsistir la regulacio´n cuya inconstitucionalidad fue declarada por este Tribunal, por lo que en u´ltima instancia no se veri´a satisfecha la pretensio´n del accionante. De ahi´ la identidad que deben guardar ambas hipo´tesis normativas en relacio´n con el asunto discutido en la correspondiente accio´n. Es decir, no basta que el razonamiento desarrollado en una determinada sentencia sea igualmente aplicable a otro supuesto para pretender la afectacio´n de este u´ltimo por vi´a de conexidad: a lo sumo, ello podri´a dar lugar a la interposicio´n de otra accio´n invocando los precedentes ya dictados por la jurisprudencia, pero nunca producir su anulacio´n automa´tica dentro del mismo proceso judicial en que se ha dictado el precedente. En el caso concreto, el ana´lisis de los argumentos esbozados en la accio´n ha dejado en evidencia que la disconformidad del accionante se refiere, como ya se vio, a la previsio´n normativa que dispone la nulidad en caso de que no sean observadas las formalidades dispuestas para el registro de los acuerdos de la asamblea de accionistas, y circunscrito a ese objeto debe ser enfocado el ana´lisis de fondo de la accio´n.” Indica que la anterior Ley entraría en plena vigencia el 20 de junio del 2020, y contiene normas que regulan la misma situacio´n fa´ctica, esto es, obligar a los pensionados y jubilados a cotizar montos mayores por haberse disminuido el monto exonerado y, como consecuencia de ello, aumentan los montos de contribucio´n especial solidaria que debera´n aportar sus patrocinados. Argumenta que en apoyo a la consideración de que existe conexidad, debe tomarse en cuenta que la Sala Constitucional resolvió, desde el an~o 2000, en la sentencia 2000-11036 de las 14 horas del 13 de diciembre de 2000, que:

“Ahora bien, el arti´culo 89 de la Ley de la Jurisdiccio´n Constitucional dispone que "La sentencia que declare la inconstitucionalidad de una norma o ley o disposicio´n general, declarara´ tambie´n la de los dema´s preceptos de ella, o de cualquier otra ley o disposicio´n cuya anulacio´n resulte evidentemente necesaria por conexio´n o consecuencia, asi´ como la de los actos de aplicacio´n cuestionados." Al respecto, debe tenerse presente que ya esta Sala ha sen~alado en reiterada jurisprudencia que esta norma "no implica una facultad indiscriminada para anular normas cuya constitucionalidad no haya sido discutida en el proceso, sino que se trata de una obligacio´n para la Sala que tiene como fin evitar que declarada una inconstitucionalidad, subsistan otra u otras normas que hagan nugatorios los efectos del fallo estimatorio o de cuya no anulacio´n se derivari´an incongruencias graves dentro del ordenamiento juri´dico, y especi´ficamente, en la regulacio´n de una misma materia, que esta Sala, dada su naturaleza de Tribunal Constitucional, y por su funcio´n integradora del orden juri´dico, debe anular en cuanto ello resulte evidentemente necesario, como consecuencia de la estimacio´n de la accio´n, o por la conexio´n –juri´dica o lo´gica- con el punto cuestionado." (Resolucio´n N° 989- 93 de las 15 horas 27 minutos del 23 de febrero de 1993).” Estima que, de las consideraciones transcritas se desprende con toda claridad que la pretensio´n de sus representados solo podra´ satisfacerse anulando el arti´culo 236 bis de la Ley N°8, introducido por la Ley N°9544 y, por conexidad los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N° 9796, que lo modificaron desde el 5 de diciembre del 2019. Indica que el objetivo del proyecto de ley en su nacimiento, de acuerdo con el dictamen afirmativo de mayoría de la Comisión Permanente Ordinaria de Asuntos Sociales de la Asamblea Legislativa de 4 de septiembre de 2019, fue:

a. “La iniciativa en su texto base propone bajar el monto de la base exenta, de la contribucio´n obligatoria y solidaria, de los regi´menes de pensiones del Magisterio Nacional, Poder Judicial y Ministerio de Trabajo, lo que permitira´ que un grupo considerable de pensionados que en este momento esta´n exentos, aporten la contribucio´n en mencio´n, y a futuro, con el redisen~o de la base exenta del pago de la contribucio´n solidaria por debajo del tope ma´ximo de pensio´n, acordado para todos los regi´menes especiales, se logra dar contenido extendido en el tiempo, a la contribucio´n solidaria. ...” b. “Adema´s, establece que por encima de los ocho (8) salarios ma´s bajos segu´n la Administracio´n Pu´blica que se trate (sea Poder Judicial, Poder Ejecutivo, el Tribunal Supremo de Elecciones, Magisterio Nacional, Ministerio de Trabajo y Seguridad Social, etc.) se estari´an aplicando los porcentajes de las deducciones por concepto de contribucio´n solidaria. Es decir, que hasta ese monto estari´a exenta la pensio´n o jubilacio´n. Esto es una modificacio´n que recae sobre todos los topes de pensiones y jubilaciones, presentes y futuras, establecidos en la legislacio´n vigente.” c. “... para eliminar el destino especi´fico en razo´n de que, al final, lo que se va a dejar de pagar con el aumento del aporte solidario, constituye un ahorro para el Estado. Esto porque las pensiones no son autofinanciadas, sino que constituyen en su mayori´a deuda pu´blica, por lo que ya se estari´a aportando al fisco con el ahorro.” En resumen, señala que el proyecto de ley N°21.305, pretendi´a redimensionar y aumentar la contribucio´n especial solidaria, similar a la que ya existe en la Ley Orga´nica de Poder Judicial en su arti´culo 236 bis, pero disminuyendo los montos exonerados (se rebaja de 10 salarios base del salario ma´s bajo pagado a 6 salarios base), para recaudar una mayor cantidad de recursos, en los regi´menes con cargo al Presupuesto Nacional o Ley Marco, e incluyen al Poder Judicial y el Magisterio Nacional, con el fin de destinarlos a contribuir con las finanzas pu´blicas. Añade que el objeto o finalidad de la ley que se gesto´ con el proyecto N°21.305 y que desemboco´ en la Ley N°9796, fue el fijar un piso o base de contribucio´n inferior (monto exonerado) a la que se teni´a (para los pensionados del Magisterio y Ley Marco se pasa de 10 a 8 salarios), y en el caso del Poder Judicial, la contribucio´n solidaria se disminuye de 10 salarios base ma´s bajo pagado en dicho Poder, a 6, de tal forma, que se aumenta el nu´mero de personas y el monto de la contribucio´n, a trave´s de este tipo de aporte solidario; disminucio´n que, como se ve, tiene como finalidad contribuir a las finanzas pu´blicas. Añade que, de conformidad con el propio texto de la norma que se acusa de inconstitucional por conexidad, la Ley N°9796 fue emitida de acuerdo con su arti´culo 1, con el objetivo de:

“... contribuir con las finanzas pu´blicas del pai´s aplicando un redisen~o de los topes de pensio´n ma´xima y de la pensio´n exenta de la contribucio´n especial solidaria establecida sobre los regi´menes de pensiones especiales contenidos en los arti´culos 3 de la Ley N.o 9383, Ley Marco de Contribucio´n Especial de los Regi´menes de Pensiones, de 29 de julio de 2016; 236 bis de la Ley N.o 8, Ley Orga´nica del Poder Judicial, de 29 de noviembre de 1937 y en el arti´culo 71 de la Ley N.o 2248, Ley de Pensiones y Jubilaciones del Magisterio Nacional, de 5 de setiembre de 1958, que contemplan los regi´menes del Poder Judicial y el Magisterio Nacional, respectivamente.” Añade que, de acuerdo con el propio legislador, la contribucio´n especial y solidaria, aumenta su recaudacio´n al redisen~ar los topes de pensio´n ma´xima y la pensio´n exenta, es decir, que la condicio´n de los pensionados y jubilados del Poder Judicial, cuyos montos de pensio´n superen el monto exento, se hace ma´s gravosa, pues debera´n contribuir con una mayor parte de sus pensiones mensuales, de ahi´ que con la reforma que introducen los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N° 9796, éstos tienen una evidente conexidad con la norma impugnada de inconstitucional dentro de esta accio´n, por lo que aunque se declare la inconstitucionalidad del arti´culo 236 bis de la Ley N°8 y se anule la contribucio´n especial y solidaria, de no anularse tambie´n la Ley N°9796, quedari´a vigente en el ordenamiento juri´dico la contribucio´n especial solidaria, subsistiendo otra norma que hari´a nugatorios los efectos del fallo estimatorio. Señala que el texto del proyecto y posteriormente la Ley N°9796, crearon nuevos mecanismos para la definicio´n de los topes de pensio´n ma´xima, estableciendo una base en cada uno de los regi´menes de pensiones que se regulan en el Magisterio Nacional, en el Poder Judicial y otros como el re´gimen general de pensiones con cargo al Presupuesto Nacional así como regi´menes especiales de pensiones; no obstante, se modifican los montos exentos de la contribucio´n especial, solidaria y redistributiva que anteriormente se habi´a fijado por el arti´culo 236 bis de la Ley N° 8, reformada por la Ley N°9544, en 10 salarios base del puesto ma´s bajo pagado en el Poder Judicial y ahora se limita a 6 salarios base, lo que indudablemente fija una li´nea de conexidad entre la norma impugnada de inconstitucional y la nueva norma 9796. Añade que el objetivo de los artículos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N° 9796, fue aumentar la recaudacio´n y captar nuevos contribuyentes a quienes se les rebaje la contribucio´n especial, solidaria y redistributiva. Manifiesta que, para el caso de los jubilados y pensionados del Fondo de Pensiones y Jubilaciones del Poder Judicial, las pensiones con un monto mensual mayor hasta ¢2.544.800 (dos millones quinientos cuarenta y cuatro mil ochocientos colones exactos), se encontrari´an exentas del pago de esta contribucio´n y a partir de ese monto, las jubilaciones seri´an gravadas con el pago de la contribucio´n especial solidaria y redistributiva. Advierte que, con esta finalidad, la Ley N°9796, reforma el arti´culo 236 bis de la Ley Orga´nica del Poder Judicial que habla de la contribucio´n especial solidaria y redistributiva, fija´ndolo ahora en 6 salarios base. Señala que en el caso del Poder Judicial que posee y administra un Fondo de Jubilaciones y Pensiones para sus colaboradores, lo ma´s grave, es que no existe garanti´a de que los montos que se retengan por contribucio´n especial y solidaria, vayan a destinarse para el propio fondo, pues el arti´culo 1 de la Ley N° 9796, define que el objetivo es contribuir con las finanzas pu´blicas. Añade que la finalidad indicada por la Ley N° 9796, podri´a ser contraria a lo dispuesto por la propia Sala Constitucional en la sentencia 1999-05236 de las 14 horas del 7 de julio de 1999 en la que se indico´ que la contribucio´n especial solidaria, debe ir al fondo de pensiones (seguridad social), al indicar en concreto:

“Para los accionantes la tabla transcrita muestra lo que denominan "voracidad fiscal". El argumento, tal y como es presentado a examen, tampoco resulta procedente, debido a que ya esta Sala ha indicado que ese tipo de contribucio´n al re´gimen no es asimilable al tributo. Ahora bien, la disposicio´n cuestionada sen~ala que esa cotizacio´n se hara´ "en favor del Estado", pero dadas las especiales circunstancias que rodean la normativa bajo examen, la Sala entiende que lo que la norma expresa es que la cotizacio´n lo es a favor del re´gimen de jubilaciones y pensiones, puesto que no existe justificacio´n para que una contribucio´n que ha sido prevista para engrosar a ese fondo, deba ingresar a las arcas del Tesoro Pu´blico como tal, es decir, a la caja u´nica del Estado. Recue´rdese que la jurisprudencia de este Tribunal ha sido conteste al indicar que estas cotizaciones, por su naturaleza, no constituyen tributos, en los te´rminos que la Constitucio´n Poli´tica preve´ en los arti´culos 18 y 121 inciso 13), y si no es asi´, sino de una contribucio´n especial para un sistema de seguridad social que deban financiar, en principio, por partes iguales los trabajadores, los patronos y el Estado, resultari´a un equi´voco juri´dico que se prevea una cotizacio´n en favor de uno de estos tres sujetos, pues tal manera de proceder desembocari´a en un medio li´cito para burlar las obligaciones que la Constitucio´n Poli´tica ha ideado; es decir, por esta vi´a podri´a el Estado fa´cilmente trasladar la carga de su aporte al resto de los obligados (servidores y patrones), vaciando de esta manera de contenido la disposicio´n 73 constitucional. De acuerdo con lo expuesto, el obligar a una de las partes involucradas a contribuir a favor de otra, lesiona el numeral 73 de la Carta Poli´tica, siendo constitucionalmente admisible, sin embargo, que esa cotizacio´n que el legislador ha establecido por ley, tenga como u´nica finalidad la de nutrir el fondo de seguridad social; es decir, el aporte que se cuestiona en la accio´n, esta´ concebido, u´nicamente, para favorecer el re´gimen de los contribuyentes obligados, pero bajo ninguna circunstancia esos dineros podra´n entrar a las arcas del Estado, con el cara´cter de ingreso corriente y para satisfacer gastos corrientes distintos de las cargas del sistema de jubilaciones y pensiones. De acuerdo con lo expuesto, resulta clara la inconstitucionalidad de la frase contenida en el arti´culo 70 que literalmente dispone: "cotizara´n en favor del Estado...". En lo dema´s, la accio´n resulta improcedente. ” (El subrayado y e´nfasis no es del original) Agrega que también resultari´a inconstitucional la Ley N°9796 y el arti´culo 236 bis de la Ley Orga´nica del Poder Judicial, en el tanto, ambas normas, quebraron el equilibrio en el financiamiento de los fondos de pensiones establecido en el arti´culo 73 de la Constitucio´n Poli´tica y que ha sido reiteradamente reconocido por la Sala Constitucional, pues cuando se trata de una contribucio´n especial para un sistema de seguridad social que deban financiar, en principio, por partes iguales entre los trabajadores, los patronos y el Estado, siendo un equi´voco juri´dico, que la hace inconstitucional, que se prevea una cotizacio´n en favor de uno de estos tres sujetos de forma ma´s gravosa y desproporcionada que para los otros dos. Manifiesta que, en este caso, los pensionados y jubilados del Poder Judicial, tendri´an que cotizar hasta el 55% de sus rentas pensioni´sticas, mientras que la cotizacio´n del patrono (Poder Judicial) y el Estado, se mantiene invariables. Insiste en que los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796 que reforma el arti´culo 236 bis), es conexa con la norma impugnada en la presente accio´n en cuanto, disminuye la base exenta, aumenta el nu´mero de contribuyentes y el monto de la contribucio´n para los pensionados que anteriormente contribui´an en menores proporciones, pues tiene el mismo sustrato inconstitucional del arti´culo 236 bis de la Ley N° 8. Añade que, con la finalidad de mostrar con claridad el efecto que se produce con la Ley N°9796 al agravar la condicio´n de los pensionados y jubilados del Poder Judicial, por la reforma que introducen los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796 al arti´culo 236 bis de la Ley Orga´nica del Poder Judicial, hace un resumen de las modificaciones legales y de los efectos reales sobre las pensiones en curso de sus representados: a) en el arti´culo 1 se define el objeto de la ley y se indica, en lo que interesa, que la Ley N°9796 modificara´ el arti´culo 236 bis de la Ley Orga´nica del Poder Judicial, introducido por la Ley N°9544 y que el objeto de la ley es contribuir a las finanzas pu´blicas del pai´s; b) en el arti´culo 2 inciso d) de dicha Ley N°9796 se indica que se aplicara´ a varios regi´menes de pensiones, incluido el regulado por la Ley N°8 conocida como Ley Orga´nica del Poder Judicial, por lo que, en cuanto al alcance de esa ley hay conexidad con el arti´culo 236 bis de la Ley N°8, Ley Orga´nica del Poder Judicial; c) en el arti´culo 4 se regula el monto ma´ximo y universal de pensio´n exenta de la contribucio´n especial solidaria y se modifica en forma expresa el li´mite ma´ximo de la pensio´n exenta de los pensionados y jubilados del Poder Judicial, pasando de 10 salarios base del puesto ma´s bajo pagado a 6 salarios del puesto ma´s bajo pagado en dicho Poder; d) en el arti´culo 5 se establece un li´mite ma´ximo de deducciones a las pensiones y jubilaciones del Poder Judicial del 55%, como lo indica el arti´culo 236 bis de la Ley N°8, Ley Orga´nica del Poder Judicial; es decir, existe una evidente conexidad o consecuencia en ambas normas, por lo que deben ser anuladas ambas; e) en el arti´culo 7 se reforma el inciso a) del arti´culo 236 bis de la N°8, Ley Orga´nica del Poder Judicial y establecio´ que sobre el exceso de seis (6) salarios base del puesto ma´s bajo pagado por el Poder Judicial se aplicara´ los porcentajes de contribucio´n especial solidaria; es decir, se disminuye la base de ca´lculo de la pensio´n exenta de la contribucio´n especial y solidaria, que antes estaba en 10 salarios base y se fija en 6 salarios base, siendo la conexidad evidente y manifiesta con el arti´culo 236 bis de la Ley N°8, Ley Orga´nica del Poder Judicial. Manifiesta que es muy claro que no existe sustento te´cnico en el expediente legislativo, excepto la evidente intencio´n de que los pensionados del Magisterio Nacional, Hacienda y Poder Judicial tengan una base exenta muy similar. Agrega que al disminuir la base mi´nima exenta de 10 salarios base del puesto ma´s bajo pagado en el Poder Judicial a 6 salarios base, se disminuye en un 40% el monto ma´ximo de pensio´n exonerada, pasando de ¢4.258.000,00 a ¢2.554.800,00 considerándose que el salario ma´s bajo pagado en el Poder Judicial es la suma de ¢425.800,00 a la fecha de presentar este documento en la Sala. Añade que un ejemplo de la conexidad o consecuencia, se encuentra en el impacto que genera la modificacio´n del arti´culo 236 bis de la Ley Orga´nica del Poder Judicial por la Ley N°9796. Agrega que el monto de la contribucio´n especial solidaria para un pensionado o jubilado con una prestacio´n mensual asignada de ¢6.000.000, al amparo del arti´culo 236 bis) de la Ley N°8, Ley Orga´nica del Poder Judicial sería de ¢643.575,00 que representaba un 10.73% del monto nominal de pensio´n; sin embargo, aclara que aplicando los arti´culos de la Ley N° 9796, dicho porcentaje aumenta de un 10.73% a un 24.95%, es decir, pasa de ¢643.575,00 a un monto de ¢1.497.059,06, incrementa´ndose por lo tanto en ¢516.476,51. Añade que esta Ley N° 9796 que reforma el arti´culo 236 bis de la Ley Orga´nica del Poder Judicial, hace mucho ma´s gravosa la contribucio´n especial y solidaria para los pensionados y jubilados del Poder Judicial, que reciben montos superiores a la suma de ¢2.554.800,00 y de ahi´ que es evidente y manifiesta la conexidad o consecuencia entre los arti´culos 236 bis de la Ley N°8 y los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796. Manifiesta que la contribucio´n especial solidaria de los pensionados del Poder Judicial, cuando entre a regir en junio de 2020 la reforma de los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796, va a producir un efecto importante al modificar la base mi´nima exenta de 10 salarios base del puesto ma´s bajo pagado en el Poder Judicial a 6 salarios, con lo cual se aumenta abruptamente la contribucio´n especial y solidaria y ello implica que todas las pensiones superiores a ¢5.500.000, seráan rebajadas en un 55%, queda´ndole al titular el disfrute de solamente un 45% del monto nominal de la pensio´n, es decir, no sólo replica la contribucio´n especial solidaria, sino que la agrava en perjuicio del jubilado y pensionado. Añade que los cambios indicados en la Ley N°9796 no tienen ningu´n amparo te´cnico en el expediente legislativo, pero si´ criterios del control del gasto pu´blico, ello aunque en el caso del Poder Judicial exista un verdadero fondo. Señala que para un pensionado con una prestacio´n mensual de ¢6.000.000, a partir de la entrada en vigencia de la Ley N°9796, la contribucio´n especial solidaria se incrementa, pasando de ¢643.575 a ¢1.497.059, pues al bajarse la base exenta de 10 salarios base (¢4,258.000,00) a 6 salarios base (¢2.554.800,00) y el monto a contribuir en forma especial y solidaria aumenta nominalmente en ¢516.476,51. Indica que el proyecto de ley N° 21.305 previo a la aprobacio´n de la Ley N° 9769, no conto´ con estudios actuariales que pudieran determinar cua´les seri´an las proyecciones econo´micas para recaudar con esa nueva carga impositiva. Señala que, para los pensionados judiciales, se ha fijado una cotizacio´n obligatoria del 13% para contribuir al sostenimiento del Fondo y además una contribucio´n especial solidaria y redistributiva que mantiene una escala de cotizacio´n de un 35% hasta un 55%, advirtiendo que tambie´n se carece de un estudio te´cnico que determine si esas dos cotizaciones podri´an considerarse o no, como una doble carga tributaria para los pensionados y jubilados y como un acto confiscatorio de los montos devengados. Indica que la exigencia de estudios te´cnicos completos y serios deriva del Convenio 102 OIT y esta´ recogida en la jurisprudencia constitucional de esa Sala (Ver sentencia 2379-96 de la Sala Constitucional). Manifiesta que, previo a la aprobacio´n de la Ley N° 9769, se violento´ el principio de la necesaria razonabilidad y proporcionalidad pues al no haber estudios te´cnicos determinantes lo que se hace es tomar una simple decisio´n poli´tica, a la libre, con confiscacio´n ili´cita. Indica que la Constitucio´n obliga a salvaguardar el patrimonio y los ingresos econo´micos de los trabajadores, lo que se extiende a los servidores pasivos. Añade que si bien se respeta el tope del principio del 55% de afectacio´n al monto bruto, lo cierto del caso es que para los diputados ese li´mite lo esta´n transformando en una meta, o sea, lo que se busca, poco a poco, con diversas leyes, es simplemente afectar al ma´ximo posible, sin la debida justificacio´n te´cnica, tal como se refleja en el arti´culo 5 de la Ley N°9796, principio que tambie´n fue recogido por el arti´culo 236 bis de la Ley N°8, Ley Orga´nica del Poder Judicial. Considera que se lesionan situaciones juri´dicas consolidadas, con manifiesta violacio´n al arti´culo 34 de la Constitucio´n Poli´tica. Añade que no se ignora la doctrina prevaleciente sobre los derechos adquiridos (no hay derecho a la inmutabilidad del ordenamiento), siendo que en estos casos se está frente a una situacio´n juri´dica consolidada, que nuevamente, desconoce la Ley N°9796. Agrega que se irrespeta el principio de interdiccio´n de una doble imposicio´n pues la contribucio´n solidaria es tal, sólo formalmente porque financieramente es un simple gravamen que ira´ a fortalecer las finanzas pu´blicas e implica gravar directamente el ingreso, de manera doble, porque ya esta´ gravado por el impuesto sobre la renta. Señala que estas pensiones son de las ma´s gravadas que existen pues, como se indico´ li´neas atra´s, se hacen rebajas para el fondo de pensiones, de impuesto sobre la renta, para el seguro de salud, la contribucio´n solidaria, y el financiamiento para la Junta Administrativa. Argumenta que, tanto el arti´culo 236 bis acusado de inconstitucional como los arti´culos 1, 2 inciso b), 4 inciso b), 5 y 7 de la Ley N°9796 que son conexos, presentan una clara violacio´n a la Convencio´n Interamericana de los Derechos Humanos de las Personas Mayores, aprobada por la Ley 9394 del 8 de setiembre de 2016, y están lejos de reforzar los derechos juri´dicos de los adultos mayores para que sigan disfrutando de una pensio´n plena y ayuda del Estado, independiente y auto´noma, con salud, seguridad, integracio´n y participacio´n en las esferas econo´mica, social, cultural y poli´tica, por cuanto tales normas desmejoran la calidad de vida de los pensionados del Poder Judicial, quienes atenidos a una confianza legi´tima, se acogieron a la jubilacio´n, sin esperar que por acciones posteriores del Estado, se viniera a reducir en un 55% el monto neto de pensio´n por estar pagando cotizaciones y la contribucio´n especial y solidaria que, en su conjunto, indudablemente se convierten en tributos de pago obligatorio. Aduce que, por las razones expuestas y por existir una conexidad evidente entre el arti´culo 236 bis de la Ley N°8, introducida por la Ley N°9544, y los arti´culos 1, 2 incisos b), 4 inciso b), 5 y 7 de la Ley N°9796, solicita que se anulen las normas indicadas, por ser una reflejo de la otra, en cuanto regulan la contribucio´n especial y solidaria de los jubilados y pensionados del Poder Judicial y adema´s por ser ambas inconstitucionales al violar los principios y normas de tratados y convenios internacionales y de la Constitucio´n Poli´tica, que protegen el derecho fundamental de la jubilacio´n.

188.- Mediante resolución de las 8 horas 44 minutos del 2 de junio de 2020, la Presidencia de la Sala Constitucional rechazó las gestiones planteadas por la Magistrada Garro Vargas y se le declaró habilitada para conocer de esta acción de inconstitucionalidad. Se dispuso continuar con el trámite del expediente.

189.- El 9 de junio de 2020 la Magistrada Garro Vargas presenta gestión al Pleno de la Sala Constitucional con solicitud de inhibitoria para que sea conocida ahí y que se ordene la nulidad de la resolución de la Presidencia de la Sala de las 9 horas del 15 de abril de 2020 en la que se dispuso separar del conocimiento de esta acción a la magistrada suplente Marta Esquivel y se le declaró habilitada a ella.

190.- El 10 de junio de 2020 el Magistrado Castillo Víquez presenta solicitud de inhibitoria para conocer la gestión que planteó la Magistrada Garro Vargas al Pleno de la Sala, ello por considerar que es procedente debido a que ha suscrito las resoluciones respecto de las cuales la Magistrada Garro ha solicitado reconsideración y/o revisión. Remite los autos a la Presidencia a.í. de la Sala para que se resuelva lo que en derecho corresponda.

191.- El 11 de junio de 2020 la Magistrada Garro Vargas presenta adición a la solicitud que presentó para que se le inhiba del conocimiento de este expediente.

192.- En resolución de la Presidencia a.í. de la Sala Constitucional de las 13 horas del 29 de junio de 2020, se rechazó la inhibitoria formulada por el Magistrado Castillo Víquez por lo que éste, en su condición de Presidente Titular de la Sala, deberá resolver lo que en derecho corresponda en cuanto a la gestión planteada por la magistrada Garro Vargas, así como respecto de las cuestiones atinentes presentadas con posterioridad.

193.- Mediante resolución de la Presidencia de la Sala Constitucional de las 15 horas 15 minutos de 6 de julio de 2020, se rechazó la solicitud de inhibitoria respecto de la gestión dirigida al Pleno de la Sala formulada por la magistrada Garro Vargas y se dispuso continuar con el trámite del expediente.

194.- Mediante documento presentado en la Secretaría de la Sala el 21 de julio de 2020, se apersona Jorge Eduardo Cartín Elizondo en su condición de Secretario General del Sindicato de Trabajadores y Trabajadoras del Poder Judicial y manifiesta que entre el día 29 de mayo y 15 de junio, ambos de 2018, los Sindicatos y otras Asociaciones Gremiales del Poder Judicial presentaron acciones de inconstitucionalidad en contra de la reforma al fondo de jubilaciones y pensiones del Poder Judicial, tal y como se desprende de expedientes 18-009275-0007-CO, 18-008202-0007-CO y 18-008591-0007-CO, todos acumulados al expediente 18-007819-0007-CO. Indica que, a la fecha de presentar este documento, no se han resuelto las diferentes acciones de inconstitucionalidad indicadas, con lo que se está dejando pendiente la situación jurídica de personas que han cumplido con los requisitos para jubilarse o pensionarse según lo establecía la anterior regulación que fuera reformada por la normativa que se impugna mediante las acciones de inconstitucionalidad mencionadas. Señala que se han presentado diferentes solicitudes de medidas cautelares que a la fecha no han sido resueltas, causando perjuicios a personas trabajadoras del Poder Judicial. Manifiesta que el artículo 25, en relación con el 1, 2 y 8 de la Convención Americana sobre Derechos Humanos, establece la obligación estatal de ofrecer a la persona un recurso que resulte efectivo para tutelar cualquier derecho fundamental conculcado. Estima que se ha dado una violación al acceso a una justicia pronta y cumplida y al acceso a un recurso efectivo, siendo que, dentro del acceso a la justicia se encuentra un obstáculo importante para la exigibilidad de los derechos económicos, sociales y culturales, como lo es la falta de mecanismos judiciales adecuados para su tutela, así como el caer en el error de que al instaurarse dichos recursos se cumple con este mandato y de esa manera el no resolver o resolver lo que corresponda puede diferirse en el tiempo de manera injustificada y exagerada, como en este asunto en donde hace dos años se presentaron las acciones de inconstitucionalidad y a la fecha se encuentran guardadas inexplicablemente. Añade que las acciones judiciales tipificadas por el ordenamiento jurídico interno del país, máxime tratándose de resoluciones del Tribunal Constitucional, deben pretender la protección de los derechos civiles y políticos clásicos; sin embargo, la falta de efectividad de los recursos creados por el orden jurídico interno de los Estados para tutelar los derechos económicos, sociales y culturales, vulnera las normas de los instrumentos internacionales de derechos humanos que consagran el derecho de acceder a tales recursos, y en consecuencia, a obtener una resolución en un tiempo prudencialmente adecuado. Indica que estas normas establecen, en definitiva, el derecho del titular de un derecho, a tener una acción para su tutela, pero sobre todo a que esa acción genere los resultados propios de la sentencia judicial. Añade que el reconocimiento de derechos impone la creación de acciones judiciales o de otro tipo, que permitan a su titular reclamar ante una autoridad judicial u otra con similar independencia, ante la falta de cumplimiento de su obligación por parte del sujeto obligado, con la consecuente resolución por parte de los tribunales, de los planteamientos argumentados por la parte que considera se ha violentado un derecho fundamental (o varios como en este caso). Por ello, señala que el reconocimiento de derechos es también el reconocimiento de un campo de poder para sus titulares y en ese sentido, puede actuar como una forma de restablecer equilibrios en el marco de situaciones sociales marcadamente desiguales. De esta manera, explica que el reconocimiento de derechos económicos, sociales y culturales conduce a reconocer la necesidad de contar con mecanismos adecuados y efectivos de reclamo de estos derechos de índole individual y colectiva, siendo un aspecto de importancia el tema de los recursos judiciales de naturaleza colectiva o acciones de clase en materia de derechos sociales. Señala que estos derechos tienen una clara dimensión colectiva y su vulneración suele presentarse como afectación de grupos o colectivos más o menos determinados, como en este asunto, pues como se indicó en las acciones de inconstitucionalidad presentadas, los derechos del colectivo de trabajadores del Poder Judicial se han visto seriamente afectados, pero no menos ha sido afectada la independencia judicial con la reforma cuestionada de inconstitucional. Destaca que los diversos mecanismos de acceso a la justicia de naturaleza colectiva, permiten la fiscalización de las políticas públicas por diversos actores sociales, en especial grupos o comunidades afectadas por situaciones estructurales que vulneran sus derechos, como en este asunto, la incidencia del Poder Ejecutivo y el Legislativo en las condiciones de pensión para Jueces y Juezas de la República; materia que evidentemente debe ser resorte de resolver al Poder Judicial, sin injerencia de los otros poderes de la República, y caso similar ocurre con las personas que laboran como fiscales de la República, ni que hablar de los oficiales del Organismo de Investigación Judicial o de la Defensa Pública. Así, las acciones de amparo colectivo, las acciones de tutela, acciones de clase, acciones declarativas de certeza, acciones de inconstitucionalidad, acción civil pública, actúan como vías para el control social de las políticas y al mismo tiempo sirven para activar procesos de rendición de cuentas y sistemas de freno y contrapeso entre los mismos órganos del Estado. Pese a lo indicado, pese a haber evidenciado una serie de violaciones formales y sustanciales, tanto a la ley propia a observar como lo es el Reglamento de la Asamblea Legislativa al emitir normas, como a normas y principios constitucionales evidenciados en las acciones planteadas, considera que ese ejercicio de control ha sido denegado hasta el momento por la inercia que inexplicablemente ha evidenciado la Sala Constitucional del Poder Judicial de Costa Rica. En estas acciones, organizaciones ambientales, de usuarios, pueblos indígenas, organizaciones de mujeres y de derechos humanos, o de funcionarios públicos legitimados para representar actores colectivos, como es el caso de los sindicatos y diferentes asociaciones de personas trabajadoras dentro del Poder Judicial, han logrado incidir a través de la actuación de instancias judiciales, de maneras muy diversas, en la orientación de políticas sociales, posibilidad y ejercicio de derecho que ha sido denegado por incumplimiento de justicia pronta y cumplida, así como hasta este momento, al carecer de un recurso efectivo. Señala que este tipo de acciones ha impulsado procesos de discusión de diversas políticas públicas con relación a los lineamientos de reformas de la seguridad social; de políticas masivas de reducción de pensiones y salarios; de políticas de provisión de medicamentos frente al HIV/SIDA; de sistemas de cupos para la población afrodescendiente en el ámbito de la educación; de la distribución de partidas presupuestarias para la educación pública; de la exclusión de sectores sociales del alcance de planes asistenciales alimentarios; de prácticas de discriminación de inmigrantes en el acceso a servicios sociales y planes de vivienda; y del incumplimiento de las políticas sociales para la población desplazada en un conflicto armado. Manifiesta que estas acciones, además, han contribuido a fiscalizar empresas que prestan servicios públicos a fin de tutelar los derechos de los usuarios, o empresas y grupos privados que realizan explotaciones económicas con efectos ambientales; también han servido para reclamar información y demandar mecanismos de participación en los procesos previos a la formulación de políticas, o al otorgamiento de concesiones de actividades económicas potencialmente nocivas. Argumenta que la vigencia de mecanismos adecuados de reclamo de derechos sociales, pero sobre todo como se ha venido insistiendo, en su resolución, resulta un tema central a considerar en la agenda de reformas judiciales en la región para fortalecer el acceso a la jurisdicción y la participación social y política en el ámbito de la justicia, así como para la fiscalización de las políticas estatales y de la actuación de actores privados, que impactan con sus acciones en el ejercicio de aquellos derechos básicos. En este marco, recuerda que el Sistema Interamericano de Derechos Humanos ha reconocido la trascendencia de desarrollar recursos judiciales efectivos e idóneos para la tutela de derechos económicos sociales y culturales y ha comenzado a trazar estándares en materia de la formulación y puesta en práctica de mecanismos adecuados de exigibilidad de estos derechos, como de seguido exponemos. Agrega que la Convención Americana instituye el derecho a una garantía judicial específica, destinada a proteger de manera efectiva a las personas frente a la violación de sus derechos humanos; básicamente el artículo 25 del instrumento consagra el derecho a contar con recursos sencillos, rápidos, pero sobre todo efectivos contra la vulneración de derechos fundamentales, pues victoria pírrica sería el poder interponer todas las acciones de inconstitucionalidad que se consideren necesarias, si éstas no se van a resolver como en este caso. De esa manera, señala que la Convención Americana exige: a) Obligación estatal de crear un recurso sencillo y rápido, primordialmente de carácter judicial, aunque otros recursos son admisibles en la medida en que sean efectivos, para la tutela de “derechos fundamentales” contenidos en la Convención, en la Constitución o en la ley; b) Concomitantemente con la anterior obligación estatal, este instrumento internacional de derechos humanos exige que el recurso sea efectivo, que no se quede en una gaveta de algún escritorio, durmiendo el sueño de los justos; c) Estipula además, la necesidad de que la víctima de la violación pueda interponerlo; d) Exige al Estado asegurar que el recurso será considerado, nuevamente esta obligación se apareja con la efectividad de las acciones de inconstitucionalidad planteadas; e) Señala que el recurso debe poder dirigirse aún contra actos cometidos por autoridades públicas, por lo que el recurso también es susceptible de ser dirigido contra actos cometidos por sujetos privados; f) Compromete al Estado a desarrollar el recurso judicial; y g) Establece la obligación de las autoridades estatales de cumplir con la decisión dictada a partir del recurso. Ahora, argumenta que estas obligaciones estatales emanan de la vinculación entre los alcances de los artículos 2, 25 y 1.1 de la Convención Americana; lo anterior en tanto y en cuanto, el artículo 2 de la CADH requiere que el Estado adopte medidas, incluidas las legislativas, para garantizar los derechos establecidos por ese instrumento que aún no lo estuviesen, lo cual incluye el derecho a un recurso efectivo en caso de afectaciones individuales o colectivas a derechos económicos, sociales y culturales. Manifiesta que los Estados Partes se encuentran obligados, por los artículos 25 y 1.1 de la Convención Americana, a establecer un sistema de recursos internos sencillos y rápidos, y a darles aplicación efectiva, si de facto no lo hacen, como se está materializando esta violación con la falta de resolución de estas acciones presentadas por parte de la Sala Constitucional del Poder Judicial de Costa Rica, se incurre en violación de los artículos 25, 1.1. y 2 de la CADH 3. De esa manera, señala que se evidencia así que la Convención Americana postula la obligación de proveer recursos sencillos, rápidos, pero sobre todo efectivos contra la vulneración de derechos humanos. Indica que es dable detenerse, brevemente, entonces, sobre los alcances de tales caracteres de la garantía. Añade que de acuerdo con la jurisprudencia del Sistema Interamericano de Derechos Humanos, es posible establecer que el concepto de "efectividad" del recurso presenta dos aspectos. Uno de ellos, de carácter normativo, el otro de carácter empírico. Señala que la efectividad se vincula con la llamada "idoneidad" del recurso y representa su potencial "para establecer si se ha incurrido en una violación a los derechos humanos y proveer lo necesario para remediarla" y su capacidad de "dar resultados o respuestas a las violaciones de derechos humanos"; tema que ha sido analizado por parte de la Corte IDH desde sus primeros pronunciamientos, ejemplo de ello lo encontramos en el Caso Velásquez Rodríguez. Señala que el análisis se sitúa en el plano del diseño normativo del recurso: éste debe brindar la posibilidad de plantear como objeto la vulneración de un derecho humano y lograr remedios adecuados frente a estas violaciones. Agrega que la Comisión Interamericana también ha delineado estándares tendientes a la caracterización de un recurso como efectivo y en este sentido, en su informe de fondo en el Caso Loren Riebe y otros, la Comisión estableció que al efecto de determinar la sencillez, rapidez y efectividad del amparo presentado por los tres sacerdotes contra la decisión del Estado mexicano de expulsarlos de su territorio, debía tenerse en cuenta: a) la posibilidad del recurso para determinar la existencia de violaciones a derechos fundamentales; b) la posibilidad de remediarlas; c) la posibilidad de reparar el daño causado y de permitir el castigo de los responsables. Destaca que ahí la CIDH llegó a la conclusión de que ha habido una vulneración al artículo 25 de la CADH, tomando en cuenta, entre otras cuestiones, el alcance de la revisión judicial de la decisión administrativa de expulsión. Por su parte, en otros casos tal cuestión ha sido analizada por la Comisión IDH haciendo referencia también, a la virtualidad del artículo 8 de la CADH. Agrega que en cuanto al segundo aspecto del recurso "efectivo", se hace referencia al de tipo empírico, este hace a las condiciones políticas e institucionales que permiten que un recurso previsto legalmente sea capaz de "cumplir con su objeto" u "obtener el resultado para el que fue concebido". De esa manera, en este segundo sentido, un recurso no es efectivo cuando es "ilusorio", debido a que resulte muy gravoso para la víctima, o debido a que el Estado no ha asegurado su debida aplicación por parte de sus autoridades judiciales. Así, la Corte IDH ha resaltado, una y otra vez, que: “No pueden considerarse efectivos aquellos recursos que, por las condiciones generales del país o incluso por las circunstancias particulares de un caso dado, resulten ilusorios. Ello puede ocurrir, por ejemplo, cuando su inutilidad haya quedado demostrada por la práctica, porque el Poder Judicial carezca de la independencia necesaria para decidir con imparcialidad o porque falten los medios para ejecutar sus decisiones; por cualquier otra situación que configure un cuadro de denegación de justicia, como sucede cuando se incurre en retardo injustificado en la decisión; o, por cualquier causa, no se permita al presunto lesionado el acceso al recurso judicial”. Agrega que en cuanto a la independencia al resolver, se debe recordar que una Magistrada de la Sala Constitucional, ha sido recusada, ha manifestado abiertamente que no se apartaría de lo que la Asamblea Legislativa decidió a este respecto de la reforma al régimen de pensiones y jubilaciones del Poder Judicial. Indica que en otro caso los peticionarios alegaron la vulneración del derecho a las garantías judiciales y a la protección judicial efectiva ante la violación del plazo razonable para la adopción de una decisión sobre el fondo, en el trámite de la acción de amparo que habían interpuesto con miras a garantizar sus derechos fundamentales; se arguyó así la falta de toda efectividad de la acción de amparo para la tutela de derechos fundamentales. Indica que en este caso se tiene más de dos años de espera sin que se resuelva el cuestionamiento que le ha sido planteado a la Sala. Manifiesta que indudablemente los derechos sociales tienen una dimensión colectiva y, por ello, su vulneración suele presentarse como afectación de grupos o colectivos más o menos determinados, que es el caso concreto bajo estudio de un colectivo de personas trabajadoras del Poder Judicial de Costa Rica. De esta manera, indica que un componente esencial de la exigibilidad de los derechos en la justicia es la posibilidad de contar con este tipo de acciones de representación de intereses públicos o colectivos, cualquiera sea su diseño procesal, comprendido en el artículo 25 de la Convención Americana, y vinculado íntimamente con el derecho de asociación y de participación en los asuntos públicos, en tanto se trata del tipo de recursos judiciales idóneos y efectivos para la tutela de este tipo de derechos. En este marco, el Sistema Interamericano de Derechos Humanos ha comenzado a delinear estándares sobre mecanismos de tutela judicial que garanticen el litigio colectivo y, en particular, sobre el alcance de la obligación estatal de asegurar este tipo de procedimientos de reclamo en los sistemas judiciales nacionales. Argumenta que los supuestos antes mencionados demandan necesariamente del diseño y puesta en práctica de mecanismos del litigio colectivo que son aquellos casos en los que la titularidad de un derecho, corresponde a un sujeto plural o colectivo, o en los que el derecho requiere necesariamente formas de ejercicio colectivo; casos en los que, a fin de reclamar protección judicial, es preciso que alguien pueda invocar la afectación grupal o colectiva, y no sólo la afectación individual. En sentido similar, es necesario que alguien esté en condiciones de reclamar un remedio de carácter colectivo, y no sólo uno que se agote en el alcance individual. Argumenta que en este asunto en particular se está frente a las acciones de inconstitucionalidad presentadas por diferentes sindicatos y gremios del Poder Judicial en el ejercicio propio de tutela de sus derechos económicos y sociales desde una perspectiva del colectivo, de ahí la necesidad de que este asunto se resuelva para decidir la procedencia posterior desde la perspectiva jurídica de sus derechos, los que han sido conculcados con la reforma que cuestiona. Concluye que el 25 de la Convención Americana establece el deber estatal de crear un recurso sencillo, rápido y efectivo para la protección y garantía de los derechos humanos; así los órganos del Sistema Interamericano de Derechos Humanos han comenzado a delinear estándares en relación con los alcances de tal obligación en materia de derechos económicos, sociales y culturales, y pese a la vasta jurisprudencia del Sistema Interamericano, la Sala Constitucional del Poder Judicial de Costa Rica ha hecho caso omiso y ha dejado engavetadas las diferentes acciones de inconstitucionalidad que los Sindicatos y diferentes Asociaciones de personas trabajadoras del Poder Judicial han interpuesto frente a la ilegítima reforma al fondo de pensiones y jubilaciones del Poder Judicial. Agrega que tanto la Comisión IDH como la Corte IDH han identificado la necesidad de proveer medidas procesales que permitan el resguardo inmediato de los derechos sociales, a pesar de que el fondo de la cuestión pueda llegar a demandar un análisis más prolongado en el tiempo. La Comisión Interamericana ha identificado determinadas características esenciales con las que estas medidas deben contar para ser consideradas idóneas a la luz de la Convención Americana. Así, ha postulado que debe tratarse de recursos sencillos, urgentes, informales, accesibles y tramitados por órganos independientes; que deben poder tramitarse como recursos individuales y como acciones cautelares colectivas a fin de resguardar los derechos de un grupo determinado o determinable; que debe garantizarse una legitimación activa amplia a su respecto; que deben ostentar la posibilidad de acceder a instancias judiciales nacionales ante el temor de parcialidad en el actuar de la justicia local; y, por último, que debe preverse la aplicación de estas medidas de protección en consulta con los afectados. Sin embargo, señala que la Sala Constitucional ha hecho caso omiso de las solicitudes de medida cautelar que los Sindicatos y Asociaciones del Poder Judicial hemos planteado frente a la aplicación de la ilegítima reforma del fondo de pensiones y jubilaciones del Poder Judicial. Manifiesta que en los últimos tiempos, la Corte IDH y la Comisión IDH han reconocido la necesidad de tutelar los derechos económicos, sociales y culturales, ya no sólo en su dimensión individual, sino también en su faz colectiva. En este marco, el Sistema Interamericano de DH ha comenzado a delinear estándares sobre los mecanismos de tutela judicial tendientes a garantizar el litigio colectivo y especialmente, en relación con el alcance de a obligación de los Estados de proveer este tipo de procedimientos de reclamo; sin embargo, indica que la Sala Constitucional del Poder Judicial en Costa Rica, ha hecho caso omiso a esta posibilidad haciendo nugatorio su derecho a que se resuelvan en un plazo razonable las acciones de inconstitucionalidad planteadas, pese a que el Sistema Interamericano ha atravesado una clara evolución en esta materia, en cuanto ha reconocido expresamente la dimensión colectiva de determinados derechos y la necesidad de esbozar y poner en práctica dispositivos jurídicos con miras a garantizar plenamente tal dimensión. De esta manera, indica que se evidencian los mayores alcances que los órganos del Sistema Interamericano de DH le han reconocido a la garantía prevista en el artículo 25 de la CADH, a fin de contemplar en su marco, la tutela judicial efectiva de derechos colectivos. Indica que, la jurisprudencia del Sistema Interamericano de DH se muestra firme y asentada a la hora de exigir la efectiva vigencia del derecho a la tutela judicial efectiva de derechos económicos, sociales y culturales. En este aspecto, por ejemplo, la Corte IDH ha reconocido la necesidad de que los Estados diseñen e implementen mecanismos jurídicos efectivos de reclamo para la tutela de derechos sociales esenciales, como los derechos de los trabajadores; mecanismos que no queden en la posibilidad de recurrir, sino en la efectiva resolución, su motivación y justificación. A la vez, indica que la CIDH ha determinado que el derecho a la tutela judicial efectiva requiere del acatamiento de las decisiones cautelares judiciales, por lo que el incumplimiento de estas medidas, también puede conllevar la vulneración de este derecho. Agrega que la Comisión Interamericana también ha delineado un estándar relevante en relación con los límites del accionar exigible a las víctimas a fin de lograr el acatamiento de las mandas judiciales a su favor; así ha manifestado que los Estados deben garantizar el cumplimiento de dichas decisiones judiciales de forma inmediata y sin requerirle a los afectados que impulsen acciones adicionales de acatamiento, sea en la órbita penal, administrativa o de ninguna otra índole. Añade que la importancia de la resolución de asuntos puestos en conocimiento del Tribunal Constitucional, en este caso, es de tal magnitud que inclusive la Corte IDH, ha considerado que para hablar de "recursos judiciales efectivos" no alcanza con que en los procesos se dicten resoluciones definitivas en las que se decida el resguardo de los derechos en juego ya que la etapa de ejecución de tales decisiones también debe ser entendida como parte integrante del derecho a la tutela judicial efectiva. A la vez, la Corte ha sostenido que en el caso de fallos en materia de acciones de garantía, atento a la particular naturaleza de los derechos protegidos, el Estado debe acatarlos en el menor tiempo posible, adoptando todas las medidas necesarias al efecto. En este punto, argumenta que la Corte es enfática al afirmar que las normas presupuestarias no pueden justificar una demora prolongada en el tiempo en el acatamiento de las decisiones judiciales que resguardan derechos humanos; sin embargo, aduce que en este caso en particular, ni siquiera se ha podido llegar a la etapa de resolución judicial efectiva, por lo que abiertamente se están vulnerando derechos humanos, tal y como han sido ya ampliamente argumentados en las acciones de inconstitucionalidad presentadas. Finaliza solicitando respetuosamente que sean resueltas las acciones de inconstitucionalidad acumuladas en el expediente 18-007819-0007-CO a efecto de no ver mayormente conculcados los derechos humanos que le asisten a las personas funcionarias judiciales, así como a las personas que ya se encuentran pensionadas o jubiladas.

195.- En escrito presentado en la Secretaría de la Sala el 21 de julio de 2020, se apersona el accionante Danilo Eduardo Ugalde Vargas para manifestar que entre la fecha de inicio de este proceso y el momento en que presenta este documento, 4 de sus representados, adultos mayores y pensionados del Poder Judicial, han fallecido, concretamente los señores Eduardo Sancho González, Alfonso Chaves Ramírez, Rosa Iris Gamboa Monge y Óscar Luis Fonseca Montoya; es decir, de los 21 accionantes que iniciaron este proceso en busca de justicia constitucional por ser afectados directamente con la Ley 9544, 4 han fallecido, lo que representa un 19,5% del total de sus representados. Indica que debido a que sus representados son adultos mayores, con una edad promedio superior a los 65 años, pide la especial tutela que dispone el artículo 51 de la Constitución y los diversos instrumentos internacionales, reconocida también en diferentes sentencias de la Sala Constitucional, ello a fin de que se le de pronto despacho a este expediente. Recuerda que esa normativa garantiza el derecho de las personas adultas mayores a ser oídos con las garantías debidas y dentro de un plazo razonable, incluso mediante la adopción de ajustes de procedimiento en todos los procesos judiciales y administrativos en cualquiera de sus etapas, por lo que solicita que se agilice el dictado de la resolución final en este proceso. Argumenta que sus representados tienen derecho a recibir una atención especial de parte de las autoridades judiciales, como medio razonable de promover su protección efectiva, el respeto de sus derechos económicos y jubilatorios, todos garantizados en el Estado Social de Derecho que regula la Constitución Política. Finaliza solicitando un pronto despacho para que se dicte sentencia, de manera urgente, en la acción de inconstitucionalidad que se tramita en este expediente.

196.- Mediante escrito presentado el 24 de julio de 2020 se apersona Álvaro Rodríguez Zamora en su condición de Secretario General del Sindicato Asociación Nacional de Investigadores en Criminalística, para señalar que a pesar del tiempo que ha transcurrido desde que se presentaron las diferentes acciones de inconstitucionalidad que se han acumulado a este expediente, a la fecha no se ha dictado sentencia y, con ello, se está dejando pendiente la situación jurídica de personas que han cumplido con los requisitos para jubilarse o pensionarse según lo establecía la anterior normativa. Indica que también se han presentado varias solicitudes de medidas cautelares que tampoco han sido resueltas, causando serios perjuicios a los trabajadores del Poder Judicial. Indica que solicita pronto despacho de este expediente al considerar que se ha dado una violación al acceso a la justicia pronta y cumplida así como al acceso a un recurso efectivo. Señala que aun cuando se reconozca el derecho a presentar recursos, estos no tienen sentido si no se resuelven con prontitud. Reitera las pretensiones planteadas en las diferentes acciones de inconstitucionalidad y solicita que sean resueltas con prontitud para no ver mayormente conculcados los derechos que les asisten a las personas funcionarias judiciales, así como a quienes ya se encuentran jubilados y pensionados.

197.- Conforme se consignó supra, mediante resolución de las 9 horas 31 minutos del 10 de mayo de 2019, se tuvo por contestadas las audiencias conferidas a la Procuraduría General de la República, a la Corte Suprema de Justicia y a la Asamblea Legislativa.

198.- En sentencia interlocutoria del Pleno de la Sala Constitucional número 2020-015544 de las 12 horas 10 minutos de 20 de agosto de 2020, se rechazó por mayoría la gestión de nulidad planteada ante el pleno, de una resolución anterior que había desestimado la solicitud de inhibitoria planteada por la Magistrada Garro Vargas.

199.- Mediante resolución interlocutoria de este Tribunal de las 12 horas 30 minutos de 20 de agosto de 2020 se conocieron varias gestiones de pronto despacho interpuestas por algunos de los accionantes; solicitudes que fueron rechazadas por existir motivos objetivos y razonables que justifican la tramitación que se le ha dado al expediente.

200.- Mediante escrito presentado en la Secretaría de la Sala el 30 de octubre de 2020 se apersona Danilo Eduardo Ugalde Vargas, de calidades conocidas en autos, para señalar que aporta prueba a fin de demostrar que el tope de pensión y la contribución especial, solidaria y redistributiva, que afecta a las jubilaciones y pensiones del Poder Judicial, incorporado en la Ley 9545 publicada en el Diario Oficial La Gaceta Nº 89 de 22 de mayo de 2018 y la modificación del referido tope incorporado en la Ley 9796 publicada en el Diario Oficial La Gaceta N° 243 del 20 de diciembre del 2019, no se fundamentan en estudios técnicos actuariales y no cumplen con los principios de razonabilidad y proporcionalidad. Añade que por sentencia Nº 01625-2010 de las 9 horas 30 minutos del 27 de enero de 2010, la Sala Constitucional indicó que el establecimiento de un tope a las jubilaciones y pensiones per se, no es inconstitucional, en el tanto respete los principios de proporcionalidad y razonabilidad y se fundamente en estudios técnicos. Agrega que en sentencia N°05758-2018 de las 15 horas 40 minutos de 12 de abril de 2018 de este Tribunal, al evacuar la consulta facultativa del proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, expediente legislativo 19922, la Sala reseñó que el Estado puede establecer medidas regresivas a las jubilaciones y pensiones, en este caso, el establecimiento de un tope y una contribución especial, solidaria y redistributiva, siempre que los poderes públicos soporten la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos y en caso de que se quiera adoptar medidas regresivas para el derecho a la jubilación y pensión, debe contarse con un estudio técnico. Añade que, debido a la línea jurisprudencial que ha venido sosteniendo la Sala, ratificada incluso con sentencias recientes, el 7 de septiembre de 2018, presentaron acción de inconstitucionalidad contra la Ley 9544, publicada en el Diario Oficial La Gaceta No 89 de 22 de mayo de 2018 "REFORMA DEL RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL CONTENIDO EN LA LEY 7333, LEY ORGÁNICA DEL PODER JUDICIAL, DE 5 DE MAYO DE 1993 Y SUS REFORMAS". Indica que, desde esa oportunidad, demostraron con argumentos que no se cumple con los presupuestos que ha venido desarrollando la Sala en el sentido de que no existe un estudio técnico que recomiende establecer la contribución especial, solidaria y redistributiva como una forma de mejorar la situación actuarial del régimen en el largo plazo, tampoco existe fundamento técnico que determine los porcentajes o si éstos, o los parámetros establecidos resultan ser razonables y proporcionales como parámetros de constitucionalidad o si la aplicación de esa contribución deviene en confiscatoria. Manifiesta que, de acuerdo con las sentencias señaladas, y teniendo claro que conforme lo dijo la Sala, corresponde al Estado probar que sí existen estudios técnicos que fundamentan el establecimiento del tope y la correspondiente contribución especial, solidaria y redistributiva; no obstante, en aras de la celeridad, economía procesal y de obtener justicia pronta y cumplida, informa que algunos de los accionantes se han permitido solicitar al Dr. José Antonio Cordero Peña, Director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE), que es el ente responsable del estudio actuarial elaborado a solicitud del Poder Judicial con corte al 31 de diciembre del 2015 que sirvió de base para tramitar el proyecto de Ley 19.922, que desembocó en la Ley 9544, que informe si en los documentos que conforman los productos finales de ese estudio actuarial, consta el desarrollo de los estudios, análisis, fórmulas, proyecciones y cuadros, entre otros, que fundamenten el establecimiento de un tope y contribución especial, solidaria y redistributiva, atendiendo a los principios de razonabilidad y proporcionalidad; tope y contribución que finalmente fueron incorporados en la Ley 9544 cuya constitucionalidad están cuestionando. Indica que se aporta oficios suscritos por el señor Alfredo Jones León, que fue quien realizó la gestión al IICE, firmados digital y debidamente certificados. Añade que el Dr. Cordero Peña en oficio Nº IICE-l82-2020 de 5 de octubre del 2020, brindó su respuesta al oficio enviado y de la lectura de ese documento se concluye que el IICE no desarrolló los análisis técnico-actuariales que permitieran fundamentar técnicamente la contribución especial, solidaria y redistributiva, por lo que, atendiendo a los principios de razonabilidad y proporcionalidad, el establecimiento del tope y la contribución especial, solidaria y redistributiva, incorporada en la Ley 9544, carece de fundamento técnico. Agrega que, al considerar que la respuesta indicada debía profundizarse en algunos aspectos, para una mejor compresión a las interrogantes planteadas, el señor Alfredo Jones León (uno de los accionantes), remitió al IICE el 7 de octubre del 2020 un nuevo oficio, solicitando la ampliación de la respuesta inicialmente recibida. Agrega que el 28 de octubre de 2020 se recibió del Dr. Cordero Peña, el oficio NO IICE-209-2020 y del análisis detallado del contenido de esta comunicación, se extraen las siguientes conclusiones para consideración de la Sala:

• a)El IICE no recomendó en el estudio actuarial que desarrolló, topes o tasas de contribución especial y solidaria a aplicar a las jubilaciones y pensiones judiciales, no sólo porque ninguna instancia administrativa del Poder Judicial ni de la Asamblea Legislativa lo solicitó, sino porque tampoco lo hizo de oficio. Se limitó a comunicar a la Asamblea Legislativa por oficio IICE-186-2017 de 18 de agosto del 2017, que los tramos de la contribución solidaria incluidos en el dictamen de mayoría adicionales al aporte ordinario, actúa a favor de la solvencia actuarial del Fondo por ellos recomendada (lo cual tiene lógica), pero no analizó ni profundizó desde la técnica actuarial, si el tope a partir del cual se aplica la contribución y los tramos de ésta, tienen algún fundamento técnico.
• b)El IICE en el estudio presentado al Poder Judicial, analizó la situación actuarial de su Fondo de Jubilaciones al 31 de diciembre del 2015 y planteó escenarios para lograr el respectivo balance actuarial.
• c)El criterio para establecer el tope máximo que se indica en la página 9), punto 5 del "Producto 5: Resultados del Balance Actuarial de participantes actuales y futuros, bajo el marco de una nueva propuesta normativa por parte del Instituto de Investigaciones en Ciencias Económicas", surgió de común acuerdo entre el IICE y las instancias administrativas del Poder Judicial, no fue una recomendación del IICE al Poder Judicial, ni tampoco fue definido técnicamente.
• d)La escala o tramos de la contribución especial solidaria y redistributiva que aprobó la Asamblea Legislativa en la Ley 9544, fue planteada por las señoras Diputadas y señores Diputados y no por el IICE.
• e)Ninguna instancia administrativa del Poder Judicial, ni ninguna Comisión o el Plenario de la Asamblea Legislativa, le solicitaron al IICE que analizará desde el punto de vista actuarial, el peso de la contribución especial solidaria y redistributiva en el balance actuarial que recomendó, particularmente en los escenarios o marcos IICE_3 y llCE_4 del estudio actuarial entregado al Poder Judicial.
• f)Finalmente, el IICE no facilita la certificación que se solicitó de las páginas del estudio actuarial entregado al Poder Judicial, en donde conste el desarrollo de los estudios, análisis, fórmulas, proyecciones, cuadros, entre otros, que fundamentan el establecimiento del tope y de los tramos de la contribución especial, solidaria y redistributiva que se aplica a las jubilaciones y pensiones a cargo del Fondo de Jubilaciones y Pensiones del Poder Judicial, por cuanto no existen.

Agrega que, por lo expuesto y a partir de las dos comunicaciones recibidas del IICE, reitera que ellos reconocen indubitablemente que no desarrollaron los estudios técnicos necesarios que sirvieran a la Asamblea Legislativa para fundamentar el tope y contribución especial solidaria y redistributiva, hoy cuestionada de inconstitucional; más aún, señala que reconocen que ellos en ningún momento le recomendaron técnicamente a instancia alguna de la Asamblea Legislativa, el establecimiento de un tope o los tramos de la contribución especial, solidaria y redistributiva, que finalmente se incorporaron en la Ley 9544. Argumenta que, por ello, al carecer dicha ley de estudios técnicos y no estar fundamentada en los principios de razonabilidad y proporcionalidad, de acuerdo con lo desarrollado por la Sala en su jurisprudencia, ésta deviene en inconstitucional. Añade que, conforme consta en documento adjunto suscrito por el MBA Miguel Ovares Chavarría, Jefe del Macro Proceso Financiero Contable del Poder Judicial, fechado 22 de octubre del 2020, el Fondo de Jubilaciones y Pensiones del Poder Judicial posee al 30 de septiembre del 2020, un patrimonio de ¢613.076.510.586 (seiscientos trece mil setenta y seis millones quinientos diez mil quinientos ochenta y seis mil colones), contra el cual se atienden las asignaciones por jubilación y pensión de manera quincenal. Indica que la situación que presenta el Fondo es totalmente diferente a la que se encuentra en otros sistemas de jubilación y pensión con cargo al presupuesto nacional, que no poseen un fondo para atender sus obligaciones, dado que año a año se presupuesta los montos correspondientes a las asignaciones que ellos deben cancelar mes a mes en el presupuesto nacional. Señala que, por otro lado, y según consta en el expediente, en escrito presentado ante la Sala el 14 de mayo del 2020, solicitaron conforme los argumentos expuestos, la inconstitucionalidad por conexidad de los artículos 1, 2 inciso d), 4 inciso b), 5 y 7 de la Ley 9796 que redujo el tope de las jubilaciones y pensiones judiciales, de 10 a 6 veces el salario más bajo que se paga en el Poder Judicial; nuevo tope que se utiliza para calcular la contribución especial, solidaria y redistributiva a partir del 20 de junio del 2020. Argumenta que, a su vez, por escrito de 2 de junio del 2020, presentaron la correspondiente coadyuvancia activa a la acción de inconstitucionalidad establecida por la Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L., contra los artículos 1, 2 inciso d), 4 inciso b), 5 y 7 de la Ley para rediseñar y redistribuir los recursos de la contribución especial, solidaria y redistributiva, -Ley número 9796 de 5 de diciembre del 2019, publicada en cl Diario Oficial La Gaceta N" 243 del 20 de diciembre del 2019, tramitada bajo el Expediente N" 20-00771 5-0007-CO. Manifiesta que, en lo que interesa del citado escrito, interesa hacer referencia al apartado denominado “DE LA INCONSTITUCIONALIDAD POR LA FORMA”, en el que sus representados, expusieron los argumentos del por qué estiman que la Ley 9796 es inconstitucional, por carecer de estudios técnicos actuariales, incumpliendo con los principios de razonabilidad y proporcionalidad; al contrario, considera que, con la prueba que aporta - certificación firmada por el MBA Miguel Ovares Chavarría, Jefe del Macro Proceso Financiero Contable del Poder Judicial-, se demuestra que se está ante un Fondo sólido, propio del sistema judicial, tripartito y sin cargo en exclusiva al presupuesto nacional. Aduce que, por tales razones, reitera la pretensión planteada por sus representados a fin de que se declare la inconstitucionalidad del tope y contribución especial, solidaria y redistributiva que afecta los jubilados y pensionados del Fondo de Jubilaciones y Pensiones Judiciales y que fue incorporada en las Leyes 9544 y 9796.

201.- En escrito presentado en la Secretaría de la Sala el 3 de febrero de 2021, se apersona Jorge Luis Morales García, en su condición de secretario general y apoderado generalísimo con la representación judicial y extrajudicial del Sindicato de la Judicatura (SINDIJUD), para solicitar pronto despacho de esta acción de inconstitucionalidad que fue interpuesta desde el 22 de mayo de 2018. Manifiesta que el Sindicato de la Judicatura, SINDIJUD, es una agrupación gremial que comprende, dentro de sus personas afiliadas, tanto a personal activo del Poder Judicial como a jubilados que, en su momento, ejercieron como juezas y jueces de la República, de ahí el interés colectivo que ostenta la agrupación, en representación de personas que, por su condición etaria se clasifican como adultos mayores. Aduce que, del total de 49 personas accionantes, por su edad 19 de ellas califican como adultos mayores dentro de las cuales hay 3 fallecidos, a saber: Alfonso Eduardo Chaves Rami´rez, fallecido el 11 de agosto de 2019, Eduardo Sancho Gonza´lez el 16 de diciembre de 2019 y Oscar Luis del Socorro Fonseca Montoya el 12 de junio de 2020. Considera que la demora injustificada en resolver la presente Acción de Inconstitucionalidad, está violentando derechos fundamentales de personas adultas mayores que, por política institucional, se ha definido tienen que tener un trato privilegiado y expedito en la atención de sus asuntos. Argumenta que las demandas planteadas en esta acción, tienen que ver con aspectos esenciales de la vida, particularmente con la capacidad económica para la manutención de los adultos mayores, en una etapa de la vida donde esos recursos son vitales para la satisfacción de las necesidades de medicamentos y atenciones propias de esta edad. Reconoce que la Sala Constitucional tiene una gran cantidad de trabajo pero debe tomarse en cuenta que esta acción de inconstitucionalidad está pronta a cumplir 3 años de haber sido iniciada, incluso en el ínterin de su tramitación, ha operado una reforma a la ley que aquí se cuestiona, es decir, el procedimiento legislativo que es lento y engorroso, tramitó una reforma a esta ley y ha tramitado también otra reforma al régimen de jubilaciones complementarias que afecta directamente los intereses de los aquí accionantes, con lo cual, la situación de incertidumbre que se ha generado con la tardanza en resolver esta acción, hace muy incierta la situación futura de los aquí reclamantes. Solicita que se convoque la comparecencia oral para la emisión de las conclusiones de este proceso y que, según lo dispone el artículo 86 de la Ley de la Jurisdicción Constitucional, se dicte la sentencia dentro del mes siguiente a la vista. Pide que se tome en cuenta una resolución reciente de esta misma Sala Constitucional que señaló:

“(...) A tenor de todo lo expuesto, se colige que la Sala no observó en este caso, las disposiciones y principios que deben aplicarse respecto de las personas adultas mayores que acceden al sistema de administración de justicia, pues ni del informe rendido por la Presidencia de esta Sala, ni del iter procesal que siguió la acción y el amparo vinculado a ésta, es posible inferir su implementación en la especie. Por el contrario, lo que se concluye es que ambos procesos fueron tratados de forma similar a los que normalmente conoce la Sala, cuando lo cierto es que, como se indicó antes, cuando las partes son adultos mayores, al igual que con cualquier población en estado de vulnerabilidad, se impone un trato diferenciado. Lo anterior por cuanto se observa que esta Sala tardó más de tres años en resolver la acción de inconstitucionalidad a la que estaba vinculada el amparo del recurrente, el cual además, aún no ha sido resuelto, en tanto, la Sala Constitucional no aplicó la normativa respectiva para poblaciones vulnerables, específicamente para los adultos mayores en el caso concreto. El atraso ha operado tanto en la resolución de la acción de inconstitucionalidad que ya cuenta con el dictado de resolución de fondo, como en la resolución del amparo inicial del recurrente que aún espera su resolución final” (Sala Constitucional de la Corte Suprema de Justicia, resolución número 20309-2020 de las 9 horas del 22 de octubre de 2020).

202.- En sentencia interlocutoria No. 2021-002513 de las 9 horas 10 minutos de 9 de febrero de 2021, se atendió y rechazó la anterior gestión de pronto despacho, reiterándose los argumentos que, en similar sentido, se dispusieron en la resolución interlocutoria No. 2020-015545 de las 12 horas 30 minutos de 20 de agosto de 2020. De igual manera, se rechazó la solicitud de audiencia oral al considerarse innecesaria en vista de que esta acción puede ser analizada, ser valorada y resolverse bajo principios y normas evidentes, así como en la jurisprudencia de propia Sala, aunado a que la vista oral en los procesos sometidos a conocimiento de este Tribunal, es facultativa.

203.- En escrito presentado en la Secretaría de la Sala el 24 de febrero de 2021, se apersona el accionante Mario Alberto Sáenz Rojas para señalar que esta acción de inconstitucionalidad tiene más de 2 años de instaurada por lo que requiere pronto despacho, ello al considerar que el plazo para definir la situación jurídica de las personas accionantes, se ha tornado desmedido e irrazonable en perjuicio de sus intereses. Indica que en su caso concreto, si la Sala le diera la razón a personas como él, se hubiera podido jubilar desde el mes de junio de 2020. Señala que es paciente crónico con diagnóstico de hipertensión arterial, diabetes mellitus y cardiopatía hipertensiva, los cuales son factores de riesgo ante la pandemia por covid 19 y que lo colocan en una situación de vulnerabilidad ante la transmisión del virus SARS-Cov-2 por cuanto se desempeña atendiendo personas usuarias de los servicios judiciales. Añade que, aunado a lo anterior, a partir del segundo semestre del 2020 se aprobaron una serie de leyes que han venido a perjudicarlo directamente como es el caso de la nueva normativa como el ROP, puesto que, si se hubiera podido jubilar en junio de 2020, se le hubiese entregado el monto completo, pero ahora, en caso de que la Sala falle a su favor, se entregaría dividido en más de 240 cuotas mensuales, con lo cual su proyecto de vida ha llegado a un punto de crisis, todo esto sin entrar a detallar el daño emocional que ha sufrido en este tiempo. Solicita que, mediante la figura del pronto despacho, se resuelva esta acción de inconstitucionalidad.

204.- En escrito presentado en la Secretaría de la Sala el 25 de febrero de 2021 se presenta Jorge Luis Morales García en su condición de secretario general y apoderado generalísimo con la representación judicial y extrajudicial del Sindicato de la Judicatura (SINDIJUD), para solicitar revocatoria a lo resuelto por la Sala a las 9 horas 10 minutos del 9 de febrero de 2021, específicamente en cuanto a la denegatoria de realizar vista oral para este asunto. Estima que lo resuelto en ese punto no se corresponde con el contenido del artículo 10 de la Ley de la Jurisdicción Constitucional, toda vez que, en su criterio, más bien ese numeral es el fundamento normativo, claro, contundente, literal y específico que respalda la legitimidad de la solicitud de su representada para la audiencia oral. A partir de la lectura de ese artículo, considera que la Sala Constitucional está compelida por ley, en forma “necesaria” a disponer la audiencia para conclusiones que se solicita, estimando que la audiencia sería facultativa para otros asuntos que son competencia del Tribunal, no así en el caso de la acción de inconstitucionalidad. Pide que, en vista del tenor literal de ese artículo 10, se proceda a realizar el señalamiento de la audiencia que se solicitó, a efectos de cumplir con el debido proceso legal y el derecho de audiencia que la propia ha señalado que es parte integrante del debido proceso. Finaliza solicitando que se corrija el procedimiento y se revoque lo resuelto, señalando la audiencia que se insta para emitir las conclusiones del caso, tal y como lo dispone el artículo 10 de la Ley de la Jurisdicción Constitucional.

205.- En sentencia interlocutoria número 2021-004979 de las 9 horas 20 minutos de 10 de marzo de 2021, la Sala Constitucional atiende gestión de pronto despacho interpuesta por Mario Alberto Sáenz Rojas y recurso de revocatoria planteado por Jorge Luis Morales García en contra de la denegatoria de realizar audiencia oral. En lo que se refiere a la solicitud de pronto despacho, se dispuso que se debía estar a lo resuelto en la sentencia interlocutoria No. 2021-002513 de las 9 horas 10 minutos de 9 de febrero de 2021. En cuanto al recurso de revocatoria se manifestó que el numeral 11 de la Ley de la Jurisdicción Constitucional, establece que no cabrá recurso alguno contra las sentencias, autos o providencias de la Jurisdicción Constitucional, por lo que la gestión no es atendible y se declara improcedente.

206.- Mediante documentos entregados en la Secretaría de la Sala el 21 de abril de 2021, los Magistrados Araya García, Salazar Alvarado y Hernández Gutiérrez, presentan solicitud de inhibitoria para conocer esta acción de inconstitucionalidad en vista de que aducen ser asociados de la Cooperativa de Ahorro y Crédito de los Servidores Judiciales (COOPEJUDICIAL R.L.) que es una entidad que figura como accionante en este proceso de inconstitucionalidad, por lo que consideran que les asiste impedimento para conocer de este proceso. El Magistrado Suplente Hernández Gutiérrez agrega que también es asociado de la ACOJUD que es una asociación accionante en este proceso, por lo que estima que le asiste otro motivo adicional de inhibitoria.

207.- En escrito presentado en la Secretaría de la Sala el 21 de abril de 2021, la Magistrada Garro Vargas solicita que se le inhiba del conocimiento de esta acción en vista de que su hermano, Fabrizio Garro Vargas, es Juez Superior de Trabajo por lo que cotiza para el Régimen de Jubilaciones y Pensiones del Poder Judicial, pero además es miembro de la Asociación Costarricense de la Judicatura (ACOJUD), que es una organización que figura como accionante en este proceso. Estima que los anteriores motivos justifican su inhibitoria y pide que se remitan los autos a la Presidencia de la Sala para que se resuelva lo que corresponda.

208.- En resolución de las 11 horas 03 minutos de 21 de abril de 2021, la Presidencia de la Sala Constitucional rechazó la solicitud de inhibitoria planteada por el Magistrado Salazar Alvarado y se le declaró habilitado para conocer esta acción de inconstitucionalidad.

209.- Mediante resolución de la Presidencia de la Sala Constitucional de las 11 horas 30 minutos de 21 de abril de 2021, se rechazó la gestión del Magistrado Hernández Gutiérrez de inhibitoria y se le declara habilitado para conocer este proceso.

210.- La Presidencia de la Sala Constitucional en resolución de las 11 horas 58 minutos de 21 de abril de 2021, rechazó la gestión de inhibitoria planteada por la Magistrada Garro Vargas y se le declaró habilitada para conocer este asunto.

211.- En resolución de las 12 horas 12 minutos de 21 de abril de 2021, la Presidencia de la Sala Constitucional rechazó la solicitud de inhibitoria planteada por el Magistrado Araya García y lo declaró habilitado para continuar conociendo de este proceso.

212.- Mediante resolución de Magistrada Instructora de las 17 horas de 23 de abril de 2021, se ordenó al Director y al Presidente de la Junta Directiva, ambos de la Junta Administradora de Pensiones y Jubilaciones del Poder Judicial, como prueba para mejor resolver, que remitieran a este Tribunal el último informe actuarial realizado al Fondo de Jubilaciones y Pensiones del Poder Judicial.

213.- En resolución de Magistrada Instructora de las 17 horas 05 minutos de 23 de abril de 2021, y como prueba para mejor resolver, se solicitó al Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, informar y aclarar a la Sala si en el “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial (período de vigencia 2016-2018)” se tomó en consideración la variante de género de la persona cotizante; caso contrario, se debía indicar los motivos de tal decisión.

214.- En escrito presentado en la Secretaría de la Sala el 30 de abril de 2021, se apersona Juan Andrés Robalino Herrera en su condición de Director del Instituto de Investigaciones en Ciencias Económicas, para atender la prueba para mejor proveer que le fuera solicitada a su representado. Informa que ese Instituto elaboró el documento denominado: “Producto 6 Informe Final: “Recopilación E Informe Final: Conclusiones y Recomendaciones” (Versión Final), como informe final del proyecto “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial”; documento que fue entregado al Poder Judicial, y puede consultarse en la dirección electrónica de la página del Poder Judicial:

https://fjp.poder-judicial.go.cr/index.php/2013-08-08-15-26-57/estudios-actuariales-fondo-de-jubilaciones/category/352-productos. Argumenta que en la página 57 del mencionado documento, aparece el Compendio Resumen #4 en el que se describen los 4 marcos normativos desarrollados por el IICE; compendio en el que puede observarse que los marcos IICE_3 e IICE_4, plantean una diferencia de 2 años a favor de las mujeres en los requisitos de edad mínima para la jubilación por servicio, de modo que tanto en el marco IICE_3 como el marco IICE_4, resultaron ser solventes desde el punto de vista actuarial. Añade que en el mismo Compendio Resumen #4 se establece para el marco IICE_1, una diferencia de 2 años a favor de las mujeres en los requisitos de jubilación por vejez ordinaria y de jubilación por edad; sin embargo, el marco IICE_1, resultó ser insolvente. Argumenta que el proyecto “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” fue desarrollado al amparo de un Convenio Específico suscrito entre el Poder Judicial y la Universidad de Costa Rica en febrero de 2016. Manifiesta que en la Cláusula Primera del Convenio Específico se indican las personas integrantes del equipo del IICE, del equipo ejecutivo (contraparte del Poder Judicial), y del equipo técnico-actuarial (este último designado por el Poder Judicial con el fin de revisar la documentación entregada por el IICE). Por su parte, aduce que el equipo ejecutivo estuvo formado por personas funcionarias del Poder Judicial y contó también con representación de los gremios de ese Poder. Añade que todos los productos entregados por el IICE al Poder Judicial, contaron con la aprobación del equipo ejecutivo y del equipo técnico-actuarial; argumenta que, en otras palabras, todos los productos, así como la metodología y enfoques utilizados en la elaboración de dichos productos, fueron debidamente aprobados por los equipos designados por el Poder Judicial para dar seguimiento al proyecto, y en estricto apego a los términos del Convenio Específico suscrito entre el Poder Judicial y la Universidad de Costa Rica.

215.- En atención a la audiencia otorgada como prueba para mejor resolver, se apersona Arnoldo Hernández Solano en su condición de Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, mediante escrito presentado en la Secretaría de la Sala el 6 de mayo de 2021, e indica que aporta a este Tribunal el último informe de estudio actuarial practicado sobre el Fondo de Jubilaciones y Pensiones del Poder Judicial con los datos del período 2020. Destaca que la versión 4.1 de este informe, fue autorizada en sesión N° 14-2021, artículo III del 24 de marzo 2021 de esa Junta Administradora, el cual fue remitido a la Superintendencia de Pensiones con fecha 25 de marzo de 2021, mediante oficio N°. 0351- 2021. Añade que dicho informe se encuentra en proceso de revisión y autorización final de sus resultados, conforme a las facultades que el legislador decidió otorgarle al Consejo Nacional de Supervisión del Sistema Financiero y a la Superintendencia de Pensiones.

216.- En escrito presentado en la Secretaría de la Sala el 6 de mayo de 2021 se apersona Oslean Vicente Mora Valdez en su condición de Director a.í. de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, para indicar que el 28 de abril anterior, mediante oficio No. 0438-2021, se remitió a la Sala Constitucional como un anexo, el último estudio actuarial practicado al régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial con datos al cierre del período 2020, dando con ello cumplimiento a la instrucción emanada de este Tribunal. Aduce que dicho oficio fue firmado por el Presidente de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial pero remitido a la Sala por él en su condición de Director de esa Junta. Señala que no existen recapitulaciones adicionales que se deban agregar para la atención de la prueba solicitada por esta Sala, por lo que se da por satisfecho el requerimiento que se le hiciera a su representada.

217.- Los edictos a que se refiere el párrafo segundo del artículo 81 de la Ley de la Jurisdicción Constitucional fueron publicados en los números 57, 58 Y 59 del Boletín Judicial, de los días 21, 22 y 25 de marzo, todos del 2019.

218.- Se prescinde de la vista señalada en los artículos 10 y 85 de la Ley de la Jurisdicción Constitucional, con base en la potestad que otorga a la Sala el numeral 9 ibídem, al estimar suficientemente fundada esta resolución en principios y normas evidentes, así como en la jurisprudencia de este Tribunal.

219.- En los procedimientos se ha cumplido las prescripciones de ley.

Redactan la Magistrada Hernández López y los Magistrados Castillo Víquez y Araya García, según se indica en cada considerando de acuerdo con los criterios de mayoría o minoría de esta sentencia; y,

Considerando:

ASPECTOS PRELIMINARES Y DE ADMISIBILIDAD.

I.- Redacta la Magistrada Hernández López. Sobre la integración del Tribunal. - A esta acción de inconstitucionalidad número 18-007819-0007-CO se le acumularon nueve acciones de inconstitucionalidad adicionales (18-007820-000-CO, 18-008202-0007-CO, 18-008267-0007-CO, 18-008292-0007-CO, 18-008591-0007-CO, 18-013217-0007-CO, 18-009275-0007-CO,18-14168-0007-CO y 19-001720-0007-CO), asimismo se aceptaron varias coadyuvancias, quedando conformada por diez expedientes en total. Durante la tramitación del expediente, surgieron diferentes causales de inhibitoria que fueron planteadas tanto por los magistrados y magistradas propietarios como por los magistrados y magistradas suplentes, por ser en su mayoría, funcionarios o jubilados del Poder Judicial, así como varias solicitudes de recusación. Todas esas gestiones fueron debidamente tramitadas y resueltas por la Presidencia de la Sala Constitucional, según lo indica la ley, quedando finalmente el Tribunal integrado para conocer de este proceso, de la siguiente manera: 1) Magistrado propietario Fernando Castillo Víquez según resolución de las 8 horas 15 minutos de 22 de enero de 2020; 2) Magistrado propietario Paul Rueda Leal de acuerdo con resolución de las 8 horas 15 minutos de 22 de enero de 2020; 3) Magistrada propietaria Nancy Hernández López por resolución de las 8 horas 15 minutos de 22 de enero de 2020; 4) Magistrado propietario Luis Fernando Salazar Alvarado de acuerdo con resolución de las 12 horas 35 minutos de 5 de marzo de 2019; 5) Magistrado propietario Jorge Araya García según resolución de las 12 horas 35 minutos de 5 de marzo de 2019; 6) Magistrada propietaria Anamari Garro Vargas de acuerdo con la resolución de las 8 horas 44 minutos de 2 de junio de 2020 y; 7) Magistrado suplente José Paulino Hernández Gutiérrez de acuerdo a la resolución de las 8 horas 16 minutos de 13 de febrero de 2019. Así las cosas, al estar la Sala debidamente conformada para el conocimiento de esta acción de inconstitucionalidad, se procede a entrar a conocer y analizar los reclamos interpuestos.

II.- Redacta la Magistrada Hernández López. Sobre las coadyuvancias presentadas.- En resolución de la Presidencia de la Sala de las 9 horas 31 minutos de 10 de mayo de 2019, se admitieron las coadyuvancias presentadas en la Secretaría del Tribunal entre el 1 y 12 de abril de 2019 -dentro del plazo previsto por la ley-, a favor de las siguientes personas que así lo solicitaron: CRISIAM DIONISIA WONG VEGA, cédula de identidad 0107420019, ENRIQUETA ROJAS AGUILAR, cédula de identidad 0502230794, LIGIA VANESSA VÍQUEZ GÓMEZ, cédula de identidad 0108240057, ZULAY MARJORIE CAMPOS HERNÁNDEZ, cédula de identidad 0108360391, LUIS ROBERTO MADRIGAL ZAMORA, cédula de identidad 0107230460 en su condición de SECRETARIO GENERAL DEL SINDICATO DE LA DEFENSA PÚBLICA y KAROL MARÍA MONGE MOLINA, cédula de identidad 0110710254 en su condición de apoderada especial judicial de ADALGISA GUILLEN FLORES, portadora de la cédula de identidad 5-0210- 0201, ADOLFO SOTO MUÑOZ, portador de la cédula de identidad número 3- 0300-0050, ADRIÁN ARROYO ACOSTA, portador de la cédula de identidad, 1- 0903-0887, ADRIÁN COTO PEREIRA, portador de la cédula de identidad 3- 0307-0351, ADRIÁN RODOLFO BARQUERO MONGE, portador de la cédula de identidad 3-0339-0441, ADRIANA ÁLVAREZ BRICEÑO, portadora de la cédula de identidad, 1-0639- 0343, ADRIANA SOTO GONZÁLEZ, portadora de la cédula de identidad 1 -0844- 0124, ADRIANA STELLER HERNÁNDEZ, portadora de la cédula de identidad 1- 0803-0253, ALBA BARRIOS SALDAÑA, portadora de la cédula de identidad 7-0103- 0498, ALBERTH SOLANO ABARCA, portador de la cédula de identidad 1-0762-0577, ALBERTO MORA MORA, portador de la cédula de identidad 1-1023-0353, ALCIONI VÁSQUEZ RETANA, portador de la cédula de identidad 1-0643-0891, ALEJANDRA PÉREZ CORDERO, portadora de la cédula de identidad 1 -1030-0994, ALEJANDRO ALCIONE CASTRO LAO, , portador de la cédula de identidad 1-0836- 0068, ALEJANDRO FONSECA ARGUEDAS, portador de la cédula de identidad 1- 0771-0399, ALEJANDRO SOLANO ROJAS, portador de la cédula de identidad 1-0519-0729, ALEXANDER MIGUEL FONSECA PRADO, cédula de identidad 1-0779-0738, ALEXANDER PICADO GAMBOA, portador de la cédula de identidad 1-0935-0908, ALEXANDER TENORIO CAMPOS, portador de la cédula de identidad 5-0202-0075, ALEXANDER VIACHICA ESPINOZA, portador de la cédula de identidad 1-0777-0115, ALEXANDRA MADRÍZ SEQUEIRA, portadora de la cédula de identidad 1-0870-0450, ALEXANDRA MORA STELLER portadora de la cédula de identidad 2-0485-0404, ALEXANDRA VILLEGAS VELÁZQUEZ, portadora de la cédula de identidad 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, portador de la cédula de identidad 7-0103-0253, ALEYDA MOJICA MARÍN, portadora de la cédula de identidad 6-0229-0409, ALFREDO SALAZAR VENEGAS, portador ce la cédula de identidad 1-0867-0065, ALICIA MELÉNDEZ LEIVA, portadora de la cédula de identidad 5-0238-0070, ALLAN CRUZ VILLALOBOS, portador de la cédula de identidad 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, portador de la cédula de identidad 2-0443-0555, ALMA CUNNINGHAM ARANA, portadora de la cédula de identidad 7-0066-0882, ALONSO ROMERO FALLAS, portador de la cédula de identidad 1-0860-0327, ÁLVARO ÁLVAREZ GUTIÉRREZ, portador de la cédula de identidad 5-0234-0995, ÁLVARO ENRIQUE GONZÁLEZ QUIRÓS, portador de la cédula de identidad 3-0334-0081, ÁLVARO JUSTO QUIRÓS SÁNCHEZ, portador de la cédula de identidad 1-0669-0209, ÁLVARO ORTUÑO MÉNDEZ, portador de la cédula de identidad 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, portadora de la cédula de identidad 1-0828-0553, ANA CRISTINA LIZANO RODRÍGUEZ, portadora de la cédula de identidad 1-0693- 0522, ANA ISABEL MOYA CHACÓN, portadora de la cédula de identidad 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, portadora de la cédula de identidad 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, portadora de la cédula de identidad 5-0248- 0978, ANA PATRICIA ROBLES MARTÍNEZ, portadora de la cédula de identidad 7- 0102-0421, ANA RUTH ORTEGA CHAVARRÍA, portadora de la cédula de identidad 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, portadora de la cédula de identidad 1-0745-0116, ANA SONIA FUENTES GÓMEZ, portadora de la cédula de identidad 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, portadora de la cédula de identidad 2-0496-0746, ANAIS CAROLINA BOLAÑOS ZELEDÓN, portadora de la cédula de identidad 1-0902- 0620, ANAYANCI RODRÍGUEZ QUESADA, portadora de la cédula de identidad 1-0734-0966, ANDREA SOTO DÍAZ, portadora de la cédula de identidad 4-0161-0797, ANDRÉS MÉNDEZ BONILLA, portador de la cédula de identidad 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, portador de la cédula de identidad 1-0779-0938, ÁNGELA ROBLES SIBAJA, portadora de la cédula de identidad 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNÁNDEZ, portador de la cédula de identidad, 7-0107-0369, ARMANDO AGÜERO ARAYA, portador de la cédula de identidad 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, portador de la cédula de identidad 3-0325-0085, ARMANDO EMILIO JIMÉNEZ VARGAS, portador de la cédula de identidad 6-0233-0378, ARSENIO MORA BARBOZA, portador de la cédula de identidad 1-0850-0664, ARTURO FAERRON MONTOYA, portador de la cédula de identidad 5-0247-0765, AURA YANES QUINTANA, portadora de la cédula de identidad 6-0209-0198, AUREA BARBOZA CASTILLO, portadora de la cédula de identidad 5-0233-0938, BERNY VALVERDE JIMÉNEZ, portador de la cédula de identidad 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, portadora de la cédula de identidad 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, portadora de la cédula de identidad 1-0747- 0521, BONN1E PATRICIA TORRES ROSALES, portadora de la cédula de identidad 1-0750-0985, BRENDA ALPÍZAR JARA, portadora de la cédula de identidad 1-0752- 0082, CARLOS ABRAHAM CAMPBELL, portador de la cédula de identidad 7-0098-0511, CARLOS AGUILAR ORTIZ, portador de la cédula de identidad 1-0706-0717, CARLOS ALBERTO CHACÓN CHINCHILLA, portador de la cédula de identidad 1-0865-0136, CARLOS ALBERTO QUESADA HERNÁNDEZ, portador de la cédula de identidad 7-0077-0276, CARLOS ARNOLDO BERMÚDEZ AGUILAR, portador de la cédula de identidad 1-0915-0817, CARLOS BERMÚDEZ CHAVES, portador de la cédula de identidad 1-0880-0378, CARLOS ENRIQUE TORRES ACUÑA, portador de la cédula de identidad 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, portador de la cédula de identidad 1-0748-0121, CARLOS FALLAS Solís, portador de la cédula de identidad 1-0851-0582, CARLOS GONZÁLEZ MARTÍNEZ, portador de la cédula de identidad 3-0279-0596, CARLOS HUMBERTO HERRERA SOLÍS, portador de la cédula de identidad 1-0837-0484, CARLOS LUIS CORRALES JIMÉNEZ, portador de la cédula de identidad 2-0428-0157, CARLOS LUIS FRUTOS VÁSQUEZ, portador de la cédula de identidad 6-0157-0030, CARLOS LUIS GARCÍA APARICIO, portador de la cédula de identidad 1-0860-0752, CARLOS LUIS GUTIÉRREZ BARQUERO, portador de la cédula de identidad 6-0164-0434, CARLOS LUÍS VÁSQUEZ MEDINA, portador de la cédula de identidad 7-0086-0146, CARLOS MONGE NAVARRO, portador de la cédula de identidad 6-0251-0166,CARLOS PORRAS MORERA, portador de la cédula de identidad 5-0247-0389, CARLOS VENEGAS AVILES, portador de la cédula de identidad 1-0899-0725, CARLOS ALBERTO PÁEZ RODRÍGUEZ, portador de la cédula de identidad 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, portador de la cédula de identidad 1-0903-553, CARMELINA TAYLOR TAYLOR, portadora de la cédula de identidad 7-0068-0562, CAROLINA CHACÓN MEJÍA, portadora de la cédula de identidad 1-0741-0425, CATALINA ESPINOZA SÁENZ, portadora de la cédula de identidad 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, portador de la cédula de identidad 6-0198-0289, CINTHIA MAGALY VEGA CÉSPEDES, portadora de la cédula de identidad 4-0161-0385, CHIREY TAPIA MARTINEZ, portadora de la cédula de identidad 1-0912-0363, CRISTIAN CORRALES RODRÍGUEZ, portador de la cédula de identidad 2-0473-0323, CRISTIAN GÓMEZ SOLÍS, portador de la cédula de identidad 3-0333-0388, CRUZ PORRAS BOLAÑOS, portadora de la cédula de identidad 5-0213-0606, DANIA ARIAS SANDOVAL, portadora de la cédula de identidad 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, portador de la cédula de identidad 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, portador de la cédula de identidad 1-0820-0013, DÉBORA RIVERA ROMERO, portadora de la cédula de identidad, 1-0702-0210, DELIA BAYLEY BLAKE, portadora de la cédula de identidad 7-0106-0462, DENIA ZÚÑIGA ROSALES, portadora de la cédula de identidad 5-0255-0075, DENNIS MADRIGAL QUESADA, portador de la cédula de identidad, 1-0772-0406, DERRIL VILLEGAS SALAZAR, portador de la cédula de identidad 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, portadora de la cédula de identidad 1-0844-0663, DIDIER JOSÉ MONTEALEGRE BEJARANO, portador de la cédula de identidad 1- 0998-0884, DIEGO RODRÍGUEZ ZUMBADO, portador de la cédula de identidad 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, portadora de la cédula de identidad 2-0403-0367, DINORAH FLORES VILLALOBOS, portadora de la cédula de identidad 1-0762-0614, DIXON LI MORALES, portador de la cédula de identidad 1-0839-0369, DONALDO BERMÚDEZ RODRÍGUEZ, portador de la cédula de identidad 6-0260-553, DONY DANIEL SOLANO ARAYA, 6-0270- 0431, DORIS ROJAS GUZMÁN, portadora de la cédula de identidad, 1-0760-0176, DYALA LINKIMER VALVERDE, portadora de la cédula de identidad 2-0394-0312, EDDIE JOSÉ DÍAZ SOLÓRZANO, portador de la cédula de identidad 5-0202-0075, EDDY JAVIER RODA ABARCA, portador de la cédula de identidad 1-0607-0953, EDGAR GERARDO MORA ROMERO, portador de la cédula de identidad 5-0294-0965, EDUARDO BRICEÑO CABALCETA, portador de la cédula de identidad 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, portador de la cédula de identidad 1-738-0392, EDUARDO FALLAS BRENES, portador de la cédula de identidad 1 -0588- 0355, EDUARDO GÓMEZ VARGAS, portador de la cédula de identidad 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, portador de la cédula de identidad 8-0066-0926, EDUARDO MOYA ROJAS portador de la cédula de identidad 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, portador de la cédula de identidad 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, portador de la cédula de identidad 2-0484-0865, EDWIN HERRERA CAMBRONERO, portador de la cédula de identidad 1 -0578-0466, EDWIN MATA ELIZONDO, portador de la cédula de identidad 1 -0801-0067, EIBOR PANIAGUA MARÍN, portador de la cédula de identidad, 3-0323-0494, EIDY ARAYA DÍAZ, portadora de la cédula de identidad 7-0080-0880, ELIAS APU VARGAS, portador de la cédula de identidad, 7-0088-0345, ELISANDRO TREJOS CHÁVES, portador de la cédula de identidad 1-0871-0722, ELIZABETH BOLAÑOS MENA, portadora de la cédula de identidad 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, portadora de la cédula de identidad 2-0505-0891, ELMER ORTIZ OBANDO, portador de la cédula de identidad 2-0513-0201, ELPIDIO CALDERÓN CHAVES, portador de la cédula de identidad 6-021 1-0169, ELVÍN VARGAS SALAZAR, portador de la cédula de identidad 6-0164-0923, EMILCE MILEIDY GARCÍA SOLANO, portadora de la cédula de identidad 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, portador de la cédula de identidad 1-0905-0693 EMMA LÓPEZ RAMÍREZ, portadora de la cédula de identidad 6-0300-0418, ERICK ANTONIO MORA LEÍVA, portador de la cédula de identidad 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, portador de la cédula de identidad 1-0990-0489, ERICK CASTRO ZAMORA, portador de la cédula de identidad, 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, portador de la cédula de identidad 1-0617-0454, ERICK LEWIS HERNÁNDEZ, portador de la cédula de identidad, 4-0157-0803, ERICK RODRÍGUEZ MORA, portador de la cédula de identidad 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, portadora de la cédula de identidad, 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, portadora de la cédula de identidad 1-0921-0625, ERIKA LEIVA DÍAZ, portadora de la cédula de identidad 1-0905-0024, ERIKA MORALES CUBILLO, portadora de la cédula de identidad 1-0885-0266, ERIKA VILLALOBOS SOLANO, portadora de la cédula de identidad 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, portador de la cédula de identidad 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, portador de la cédula de identidad 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, portadora de la cédula de identidad 6- 0237-0005, ESTHER JIMÉNEZ AVILÉS, portadora de la cédula de identidad 1-0835-0109, EUGENIA ARIAS QUESADA, portador de la cédula de identidad 3-0287-0420, EUNICE OBANDO SOLANO, portadora de la cédula de identidad 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, portador de la cédula de identidad 1-0377-0039, EVERALDO ALFARO FERLINI, portador de la cédula de identidad 1-0771- 0854, EZEQUIEL ÁLVAREZ CABEZAS, portador de la cédula de identidad 1-1046-0548, FABIÁN GORDIANO MONTERO MONTERO, portador de la cédula de identidad 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, portador de la cédula de identidad 1-0822-0756, FIORELLA PÉREZ FONSECA, portadora de la cédula de identidad 5-0300-0115, FLOR BRENES HERNÁNDEZ, portadora de la cédula de identidad, 1-0886-0825, FLOR MARÍA MURILLO VINDAS, portadora de la cédula de identidad 2-0458-0802, FLORA MARÍA CORDERO ROJAS, portadora de la cédula de identidad 6-0225-0890, FLORIBEL CAMPOS SOLANO, portadora de la cédula de identidad 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, portadora de la cédula de identidad 2-0497-0271, FLORIBETH PALACIOS ALVARADO, portadora de la cédula de identidad 6-0221-0749, FLOR Y ROCÍO CAMPOS SANDOVAL, portadora de la cédula de identidad 2-0414-0476, FRANCINI DELGADO LEÓN, portadora de la cédula de identidad 4-0168-0486, FRANCISCO JOSÉ BONILLA GUZMÁN, portador de la cédula de identidad 1-0640-0491, FRANCISCO MURILLO ZÚÑIGA, portador de la cédula de identidad 1-0602-0162, FRANÇOISE RODRÍGUEZ CORONADO, portadora de la cédula de identidad 1-0944-0235, FRANK GARCÍA MORAGA, portador de la cédula de identidad 5-0298-0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, portador de la cédula de identidad, 1-0900-0131, FRANZ EDUARDO VEGA ZÚÑIGA, portador de la cédula de identidad, 3-0292-0396, FRESSIA REVELES GÓMEZ, portadora de la cédula de identidad 1-0922-0486, GABRIEL BARRANTES PALAFOX, portador de la cédula de identidad 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, portadora de la cédula de identidad 1-0725- 0918, GAUDY AGUI LAR ALFARO, portadora de la cédula de identidad 1-0935-0817, GERARDO ALVARADO CHAVES, portador de la cédula de identidad 2-0378-0401, GERARDO CERVANTES FONSECA, portador de la cédula de identidad 3-0278-0929, GERARDO SÁNCHEZ RIVERA, portador de la cédula de identidad 1-0741-0686, GERMAN ESQUIVEL CAMPOS, portador de la cédula de identidad 1-0965-0647, GIAN JAVIER MUIR YOWNG, portador de la cédula de identidad 3-0300-0955, GILBERTO MORA MOLINA, portador de la cédula de identidad 2-0534-0866, GINA RAMÓN FERNÁNDEZ, portadora de la cédula de identidad 1 -0791- 0967, GINETHE RETANA UREÑA, portadora de la cédula de identidad 1-0765-0153, GINNETH DURÁN CORRALES, portadora de la cédula de identidad 1-0689-0187, GINNETTE AMADOR GODOY, portadora de la cédula de identidad 8-0051-0937, GIOVANNY GONZÁLEZ HERNÁNDEZ, portador de la cédula de identidad 1- 0956-0895, GISELLE GUTIÉRREZ SOTO, portadora de la cédula de identidad 2-0408- 0809, GISELLE ROJAS ROJAS, portadora de la cédula de identidad 2-0507-0474, GLADYS NÜÑEZ RIVAS, portadora de la cédula de identidad 5-0185-0742, GLORIA ESTELA ÁNGULO SMITH, portadora de la cédula de identidad 1-0728-0619, GREIVIN HERNÁNDEZ CÓRDOBA, portador de la cédula de identidad 2-0445-0438, GUADALUPE VEGA SEQUEIRA, portador de la cédula de identidad 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, portador de la cédula de identidad 1-0760-0343, GUILLERMO ROSALES MORA, portador de la cédula de identidad 1-0731-0037, GUILLERMO VALVERDE MONGE, portador de la cédula de identidad 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, portador de la cédula de identidad 6-0222-0170, GUSTAVO RODRÍGUEZ TENCIO, portador de la cédula de identidad 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, portador de la cédula de identidad 7-0075-0104, HANNIA VANESSA RAMÍREZ PICADO, portador de la cédula de identidad 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, portador de la cédula de identidad 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, portador de la cédula de identidad 5-0242-0405, HAZEL ALFARO GONZÁLEZ, portador de la cédula de identidad 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, portador de la cédula de identidad 1-0869-0832, HÉCTOR SANTAMARÍA VÍQUEZ, portador de la cédula de identidad 1-0908-0937, HEIDY ARAYA PINEDA, portadora de la cédula de identidad 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, portadora de la cédula de identidad 1-0819-0354, HELLEN VANESSA ARIAS FATJÓ, portadora de la cédula de identidad 1-0788-0682, HENRY CAMACHO ESQUIVEL, portador de la cédula de identidad 4-0156-0291, HENRY MOODIE FEDRICK, portador de la cédula de identidad 7-0112-0315, HENRY TIJERINO ESPINOZA, portador de la cédula de identidad 5-0250-0209, HERNÁN VÁSQUEZ CASTAÑEDA, portador de la cédula de identidad 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, portador de la cédula de identidad 1-0826-0702, IGNACIO GERARDO LÉPIZ SALAZAR, portador de la cédula de identidad 4-0164-0654, ILEANA MARÍA LEAL ZÚÑIGA, portadora de la cédula de identidad 6-0196-0131, ILSE MARÍA GONZÁLEZ DOSMAN, portadora de la cédula de identidad 6-0240-0588, INDIRA ALFARO CASTILLO, portadora de la cédula de identidad 2-0462-0902, INEL GIBBONS GÓMEZ, portadora de la cédula de identidad 7-0109-0072, INGRID ÁNGULO SÁNCHEZ, portadora de la cédula de identidad 5-0285-0560, INGRID ARAYA LEANDRO, portadora ce la cédula de identidad 1-0949-0945, INGRID SANÓU KARLSON, portadora de la cédula de identidad 1-0593-0629, INOCENCIO GÓMEZ OBANDO, portador de la cédula de identidad 5-0186-0272, IRENE BLANCO MORALES, portadora de la cédula de identidad 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, portador de la cédula de identidad 1-0635-0364, IVÁN GRANADOS BARQUERO, portador de la cédula de identidad 3-0325-0944, IVÁN PÉREZ PÉREZ, portador de la cédula de identidad 7-0087-0308, IVANNIA AGUILAR ARRIETA, portadora de la cédula de identidad 1-0823-0346, IVANNIA MEDINA RAMÍREZ, portadora de la cédula de identidad 1-0911-0387, IVANNIA PATRICIA MORALES LÓPEZ, portadora de la cédula de identidad 1-0879-0108, IVANNIA VALERIO VILLALOBOS, portadora de la cédula de identidad 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, portadora de la cédula de identidad 1-0841-0091, IVETH LORENA DUARTE CERDAS, portadora de la cédula de identidad 1-0877-0005, IVETH TORRES GONZÁLEZ, portadora de la cédula de identidad 5-0235- 0765, IVONNE VALVERDE SANABRIA, portadora de la cédula de identidad 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, portador de la cédula de identidad 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, portador de la cédula de identidad 5-0308-0930, JAVIER ALFARO VALERIO, portador de la cédula de identidad 1-0660-0072, JAVIER FRANCISCO DELGADO CARAZO, portador de la cédula de identidad 5-0257-0789, JAVIER QUESADA QUESADA, portador de la cédula de identidad 1-0739-0219, JAVIER VINDAS ROCHA, portador de la cédula de identidad 1-0749-0307, JEANNETTE BARBOZA CASCANTE, portadora de la cédula de identidad 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, portador de la cédula de identidad 1-0910-0476, JENNIFER STEPHENSON STERLING, portadora de la cédula de identidad 7-0096-0630, JENNY ARCE CÓRDOBA, portadora de la cédula de identidad 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, portadora de la cédula de identidad 3-0313-0291, JENNY NÚÑEZ SALAZAR, portadora de la cédula de identidad 6-0280-0719, JEREMY EDUARTE ALEMÁN, portador de la cédula de identidad 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, portador de la cédula de identidad 1 -0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, portadora de la cédula de identidad 1 -0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, portador de la cédula de identidad 1-0881-0675, JHONNY ALFARO NAVARRETE, portador de la cédula de identidad 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, portador de la cédula de identidad 1-0787-0155, JOHANNA CHAVES LEÓN, portadora de la cédula de identidad 1-0897-0130, JOHN PALADINO JIMÉNEZ, portador de la cédula de identidad 1-0941-0472, JOHNNY ÁLVAREZ SANDÍ, portador de la cédula de identidad 7-0078-0010, JONATHAN GAMBOA VALLADARES, portador de la cédula de identidad 2-0495-0512, JONATHAN GOÑI CHAVES, portador de la cédula de identidad 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, portador de la cédula de identidad 1-0973-0613, JORGE AGUILAR PÉREZ, portador de la cédula de identidad 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, portador de la cédula de identidad 1-0753-0847, JORGE ANTONIO CHACÓN COREA, portador de la cédula de identidad 1-0762-0236, JORGE CONTRERAS LACAYO, portador de la cédula de identidad 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, portador de la cédula de identidad 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, portador de la cédula de identidad 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, portador de la cédula de identidad 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, portador de la cédula de identidad 1-0612-0417, JORGE MARIO ROJAS MEJIAS, portador de la cédula de identidad 2-0500-0326, JORGE ROBLES ZÚÑIGA, portador de la cédula de identidad 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, portador de la cédula de identidad número 1-0778-0897, JOSÉ EFRAÍN SANDERS QUESADA, portador de la cédula de identidad 1-0740-0038, JOSÉ ALBERTO RIVERA OLIVARES, portador de la cédula de identidad 1 -0793-0076, JOSÉ ALEXANDER MORA GARCÍA, portador de la cédula de identidad 1-0706-0010, JOSÉ ALONSO RODRÍGUEZ VARGAS, portador de la cédula de identidad 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACÓN, portador de la cédula de identidad 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, portador de la cédula de identidad 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, portador de la cédula de identidad 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, portador de la cédula de identidad 1-0670-0201, JOSÉ GILBERTO ROJAS CHACÓN, portador de la cédula de identidad 1-0684- 0910, JOSÉ LUIS BADILLA CUADRA, portador de la cédula de identidad, 2-0449-0004, JOSÉ LUIS BENAVIDES UMAÑA, portador de la cédula de identidad 1 -0714-0628, JOSÉ LUIS PERAZA ÁLVAREZ, portador de la cédula de identidad 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, portador de la cédula de identidad 1-0873-0458, JOSÉ MAURICIO FONSECA UMAÑA, portador de la cédula de identidad 1-0921- 028, JOSÉ RAFAEL ROJAS LÓPEZ, portador de la cédula de identidad 1-0772-0917, JOSÉ RAMÓN HIDALGO HIDALGO, portador de la cédula de identidad 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMÍREZ, portador de la cédula de identidad 3- 320-980, JOSÉ RUBÉN DIMAS PORTILLO, portador de la cédula de identidad, 7-0070-0864, JUAN CARLOS ARIAS AGUILAR, portador de la cédula de identidad 1-0408-0344, JUAN CARLOS CAMPOS MARÍN, portador de la cédula de identidad 1-0838-0041, JUAN CARLOS LEAL VEGA, portador de la cédula de identidad 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, portador de la cédula de identidad 2-0448-0967, JUAN CARLOS QUESADA QUESADA, portador de la cédula de identidad 1-0796-0215, JUAN CARLOS SALAS VARELA, portador de la cédula de identidad 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, portador de la cédula de identidad 1-0922-0112, JUAN JOSÉ ACUÑA PASTRANA, portador de la cédula de identidad 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, portador de la cédula de identidad 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, portador de la cédula de identidad 2-0486-0526, JUAN LUIS SÁNCHEZ ALVARADO, portador de la cédula de identidad 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, portador de la cédula de identidad 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, portador de la cédula de identidad 5-0215-0175, KAREN JACKELYN THOMAS SMITH, portadora de la cédula de identidad 7-0096-0607, KARIN AGUILAR MOLINARI, portadora de la cédula de identidad 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, portadora de la cédula de identidad 1-0910-0203, KARLA SANCHO VARGAS, portadora de la cédula de identidad 1-0779-0289, KAROLINA RIVERA ESPINOZA, portadora de la cédula de identidad 2-0514-0769, KATTIA CAMPOS ZÚÑIGA, portadora de la cédula de identidad 1-0707-0725, KATTIA CORDERO SOLANO, portadora de la cédula de identidad 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, portadora de la cédula de identidad 1-0984-0078, KATTIA MARÍA VARGAS PÉREZ, portadora de la cédula de identidad 1- 0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, portadora de la cédula de identidad 1-0646-0777, KATTIA MORALES NAVARRO, portadora de la cédula de identidad 1-0801-0141, KATTIA SABORÍO CHAVERRI, portadora de la cédula de identidad 2-0453-0781, KATTIA CECILIA MARÍN MIRANDA, portadora de la cédula de identidad 1-0784-0554, KA TTIA V ARGAS SALAS, portadora de la cédula de identidad 1-0793-0718, KATTYA MERCEDES MONGE PACHECO, portadora de la cédula de identidad 3-0337-0036, KRISIA FUMERO ARAYA, portadora de la cédula de identidad 1-0324-0912, LAURA PATRICIA CHACÓN MORA, portadora de la cédula de identidad 1-0708- 0472, LEDA GINETTE SOLANO BARRA, portadora de la cédula de identidad 6-0166-0755, LEONARDO BRENES GÓMEZ, portador de la cédula de identidad 1- 0921-0927, LIDIA ISABEL VÁSQUEZ VALLEJOS, portadora de la cédula de identidad 5-0265-0923, LIGIA CASTILLO CASTILLO, portadora de la cédula de identidad 1-0344-0861, LILLIAM MARÍA GARITA SHARPE, portadora de la cédula de identidad 7-0074-0805, LILLIANA ROJAS MORA, portadora de la cédula de identidad 7-0111-0674, LILLIANA SABORÍO SABORÍO, portadora de la cédula de identidad 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, portadora de la cédula de identidad 2-0497-0272, LIZETH BARAHONA CASTILLO, portadora de la cédula de identidad 7-0097-0842, LIZETH ROGERS ROGERS, portadora de la cédula de identidad 7-0101-0960, LIZETTE BRENES ARCE, portadora de la cédula de identidad 1-0715-0167, LIZZETH CRUZ TORRES, portadora de la cédula de identidad 1-0615-0237, LORELEY CERDAS ÁVILA, portadora de la cédula de identidad 1-0723-0311, LORENA RODRÍGUEZ SALAS, portadora de la cédula de identidad 1-0744-0409, LOURDES ANGULO JIMÉNEZ, portadora de la cédula de identidad 5-0257-0944, LUCRECIA ROJAS ROJAS, portadora de la cédula de identidad 3-0272-0321, LUIS ÁLVAREZ VINDAS, portador de la cédula de identidad 2-0417-0295, LUIS ÁNGEL MATAMOROS ARIAS, portador de la cédula de identidad 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, portador de la cédula de identidad 1-0793-0256, LUÍS DIEGO CHAVARRÍA GARCÍA, portador de la cédula de identidad 1-0948-0118, LUIS DIEGO ZARATE MORALES, portador de la cédula de identidad 1-0993-0395, LUIS ENRIQUE ARROYO ACUÑA, portador de la cédula de identidad 1-0626-0336, LUIS ENRIQUE LEÓN RODRÍGUEZ, portador de la cédula de identidad 5-0313-0263, LUIS FALLAS PIVA, portador de la cédula de identidad 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, portador de la cédula de identidad 1-0884-0317, LUIS FERNANDO RODRÍGUEZ ARTAVIA, portador de la cédula de identidad 2-0467- 0324, LUIS FERNANDO SOLÍS VILLEGAS, portador de la cédula de identidad 1- 0576-0916, LUIS FERNANDO SUÁREZ JIMÉNEZ, portador de la cédula de identidad 1-0738-0178, LUÍS GERARDO MARTÍNEZ GARCÍA, portador de la cédula de identidad 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, portador de la cédula de identidad 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, portador de la cédula de identidad 1-0784-0409, LUIS GUILLERMO COTO QUESADA, portador de la cédula de identidad 3-0242-0147, LUÍS GUILLERMO VÁSQUEZ UREÑA, portador de la cédula de identidad 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, portador de la cédula de identidad 5-0240-0795, LUÍS MANUEL RAMÍREZ SOLÍS, portador de la cédula de identidad número 2-0435-0895, LUIS MATAMOROS CARVAJAL, portador de la cédula de identidad 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, portador de la cédula de identidad 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, portador de la cédula de identidad 1-0802-0480, LUIS RODRIGO GUTIÉRREZ ARGUEDAS, portador de la cédula de identidad 1-0940-0199, LUIS RODRÍGUEZ CRUZ, portador de la cédula de identidad 7-0090-0234, LUIS VÁSQUEZ VALLEJOS, portador de la cédula de identidad 5-0247-0313, MAGALIE VARGAS JOHNSON, portadora de la cédula de identidad 7-0090-0188, MALCO MONTOYA RAMÍREZ, portador de la cédula de identidad 5-0262-0199, MANFRED QUESADA SÁNCHEZ, portador de la cédula de identidad 6-0268- 0546, MANUEL ALEJANDRO TORRES CASTRO, portador de la cédula de identidad 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, portador de la cédula de identidad 1-0708-0291, MANUEL ERNESTO DURÁN CASTRO, portador de la cédula de identidad 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, portador de la cédula de identidad 6-0231-0761, MANUEL OREAMUNO ZEPEDA, portador de la cédula de identidad 1-0859-0237, MANRIQUE MORALES MONTIEL, portador de la cédula de identidad 6-0271-0224, MARCELA ZUÑIGA JIMÉNEZ, portadora de la cédula de identidad 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, portador de la cédula de identidad 1-0518-0695, MARCO ANTONIO CARRIÓN HERNÁNDEZ, portador de la cédula de identidad 1-0817- 0932, MARCO ANTONIO HERRERA CHARRAUN, portador de la cédula de identidad 1-0870-0028, MARCO BADILLA BERMÚDEZ, portador de la cédula de identidad 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, portador de la cédula de identidad 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, portador de la cédula de identidad 1-0801-0273, MARCO VINICIO PORRAS MORALES, portador de la cédula de identidad 2-0429-0412, MARCO VINICIO RODRÍGUEZ ARAGÓN, portador de la cédula de identidad 2-0485-0423, MARCONY ARBUROLA VALVERDE, portador de la cédula de identidad 5-0246-0169, MARGARITA CERDAS VEGA, portadora de la cédula de identidad 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELÁSQUEZ, portadora de la cédula de identidad 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, portadora de la cédula de identidad 1-0968-0625, MARÍA AUXILIADORA SOTO RIVERA, portador de la cédula de identidad 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, portadora de la cédula de identidad 1-0539- 0560, MARÍA DE LA CRUZ ARROYO BRAVO, portadora de la cédula de identidad 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRÍGUEZ, portadora de la cédula de identidad 1-0700-0492, MARÍA DE LOS ÁNGELES CHAVES VARGAS, portadora de la cédula de identidad 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, portadora de la cédula de identidad 5-0248-0031, MARÍA DEL CARMEN VÁSQUEZ VALLEJOS, portadora de la cédula de identidad 5-0233-0377, MARÍA ELENA MOLINA SABORÍO, portadora de la cédula de identidad 6- 0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, portadora de la cédula de identidad 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ, portadora de la cédula de identidad 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, portadora de la cédula de identidad 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, portadora de la cédula de identidad 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, portadora de la cédula de identidad 3-0274- 0283, MARÍA MARGOTH CASTRO SALAZAR, portadora de la cédula de identidad 2-0454- 0319, MARÍA MARITZA PIZARRO COREA, portadora de la cédula de identidad 5-02825- 0080, MARÍA TERESA BENAVIDES ARGUELLO, portadora de la cédula de identidad 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, portadora de la cédula de identidad 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, portadora de la cédula de identidad 1-0820-0799, MARIANO RODRÍGUEZ FLORES, portador de la cédula de identidad 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, portadora de la cédula de identidad 7-0120-0576, MARIO ANGULO SALAZAR, portador de la cédula de identidad 1-1014-0171, MARIO MIRANDA DE LA O, portador de la cédula de identidad 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, portadora de la cédula de identidad 5-0241-0198, MARITZA VALVERDE CORDERO, portadora de la cédula de identidad 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, portadora de la cédula de identidad 1-0604-0812, MARJORIE SANABRIA ROJAS, portadora de la cédula de identidad 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, portadora de la cédula de identidad 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, portadora de la cédula de identidad 1-0607-0484, MARLENY RAMÍREZ GAMBOA, portadora de la cédula de identidad 4-0150-0093, MARLON ARIAS QUIRÓS, portador de la cédula de identidad 1-0120-0929, MARLYN CASTRO ALVARADO, portador de la cédula de identidad 9-0076-0447, MARLYN ELENA QUESADA QUESADA, portadora de la cédula de identidad 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, portadora de la cédula de identidad 1-0692- 0673, MARTÍN HERNÁNDEZ SERRANO, portador de la cédula de identidad 1-0726-0721, MARVIN ÁNGULO DÍAZ, portador de la cédula de identidad 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, portador de la cédula de identidad 3-0258-0595, MAUREEN BOLAÑOS ROJAS, portadora de la cédula de identidad 1-0784-0631, MAUREEN SILES MATA, portadora de la cédula de identidad 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, portadora de la cédula de identidad 1-1003-0126, MAUREEN IONG UREÑA, portadora ce la cédula de identidad 1-0815-0990, MAUREN VENEGAS MÉNDEZ, portadora de la cédula de identidad 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, portador de la cédula de identidad 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, portador de la cédula de identidad 1-0783-0049, MAURICIO RETANA GONZÁLEZ, portador de la cédula de identidad 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, portador de la cédula de identidad 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, portadora de la cédula de identidad 7-0087-0424, MAYRA GISELLA GONZÁLEZ, SÁNCHEZ, portadora de la cédula de identidad 1-0567-0766, MELANIA GÓMEZ ACUÑA, portadora de la cédula de identidad 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, portadora de la cédula de identidad 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, portador de la cédula de identidad 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, portador de la cédula de identidad 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, portador de la cédula de identidad 7-0072-0678, MIGUEL OVARES CHAVARRÍA, portador de la cédula de identidad 1-1006-0605, MINOR ANCHÍA VARGAS, portador de la cédula de identidad 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, portador de la cédula de identidad 6-0217-0066, MINOR MONGE CAMACHO, portador de la cédula de identidad 1-0676-0442, MINOR RIVAS TORRENTES, portador de la cédula de identidad 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, portador de la cédula de identidad 3-0316-0212, MIXCY CHAVES MENDOZA, portadora de la cédula de identidad 5-0309-0547, MOISÉS ALVARADO CHACÓN, portador de la cédula de identidad 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, portadora de la cédula de identidad 5-0247-0582, NATACHA PIZARRO SOTO, portadora de la cédula de identidad 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, portador de la cédula de identidad 2-0443-0931, NELSON PÉREZ GUADAMUZ, portador de la cédula de identidad, 1-0901-0416, NIDIA CASTRO CONEJO, portadora de la cédula de identidad 1-0776-0726, NILLS ROJAS JARA, portador de la cédula de identidad 7-0102-0481, NUBIA AGUILAR CAMACHO, portadora de la cédula de identidad 1 -0582-0179, NURIA QUESADA ZAMORA, portadora de la cédula de identidad 1-0619-0414, OLDEMAR CERDAS JUÁREZ, portador de la cédula de identidad 5-0252-0491, OLGA MURILLO ESPINOZA, portadora de la cédula de identidad 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, portadora de la cédula de identidad 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, portador de la cédula de identidad 2-0459-0740, OMAR BRENES CAMPOS, portador de la cédula de identidad 1-0889-0754, ORLANDO CASTRILLO VARGAS, portador de la cédula de identidad 1-0730-0335, OSBALDO ROSALES CHACÓN, portador de la cédula de identidad 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, portador de la cédula de identidad 4-0154-0227, OSVALDO LÓPEZ MORA, portador de la cédula de identidad 1- 0926-0995, OSVALDO RODRÍGUEZ FLORES, portador de la cédula de identidad 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, portador de la cédula de identidad 3-0301-0666, PABLO MACEO SOTO, portador de la cédula de identidad 7-0112-0501, PABLO ROLDÁN UMAÑA, portador de la cédula de identidad 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, portadora de la cédula de identidad 4- 0161-0248, PATRICIA FALLAS MELÉNDEZ, portadora de la cédula de identidad 1-0660- 0570, PATRICIA RIVERA SANDOVAL, portadora de la cédula de identidad 1-0782- 0780, PATRICIA WO CHINO MOK, portadora de la cédula de identidad 7-0094- 0757, PAULO HUMBERTO MENA QUESADA, portador de la cédula de identidad 3-0331 -0109, PEDRO ARCE GONZÁLEZ, portador de la cédula de identidad 2-0385-0931, PEDRO BONILLA PICADO, portador de la cédula de identidad 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, portador de la cédula de identidad 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, portador de la cédula de identidad 2-0490-0234, RAFAEL DAVID VEGA SEGURA, portador de la cédula de identidad 1-0791-0159, RAFAEL NAVARRETE BRENES, portador de la cédula de identidad 7-0104-0669, RAFAEL UREÑA BARRIOS, portador de la cédula de identidad 1-0915-0224, RAMÓN ANGULO ROLDÁN, portador de la cédula de identidad 1-0554-0410, RANDALL RODRÍGUEZ ULATE, portador de la cédula de identidad 1-0783-0793, RANDY MARTÍN TREJOS MORALES, portador de la cédula de identidad 1-0758-0892, RAQUEL RAMÍREZ BONILLA, portadora de la cédula de identidad 1-0997-0349, RASHID BEIRUTE GRANADOS, portador de la cédula de identidad 5-0243- 0570, RAYVAN MC LEOD BÍGSBY, portador de la cédula de identidad 7-0132- 0768, REBECA GUARDIA MORALES, portadora de la cédula de identidad 1-0808-0973, REBECCA ARTAVIA BRUNO, portadora de la cédula de identidad 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, portador de la cédula de identidad 1-0548-0407, RICARDO CALDERÓN VALVERDE, portador de la cédula de identidad 9-0098-0557, RICARDO GARCÍA MOLINA, portador de la cédula de identidad 4-0170-0018, RITA CASTRO ABARCA, portadora de la cédula de identidad 2-0456- 0750, RITA MARÍA QUIRÓS OBANDO, portador de la cédula de identidad 1-0758- 0598, ROBERTO CARLOS PÉREZ VARGAS, portador de la cédula de identidad 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, portador de la cédula de identidad 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, portador de la cédula de identidad 1-0813-0303, ROCÍO PICADO VARGAS, portadora de la cédula de identidad 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, portador de la cédula de identidad, 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, portador de la cédula de identidad 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, portador de la cédula de identidad 1-0706-0332, RODRIGO CASTRO SOLÍS, portador de la cédula de identidad 7-0101-0028, RODRIGO CHAVES CALVO, portador de la cédula de identidad 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, portador de la cédula de identidad 1-0903-0505, ROELIS REYES PICHARDO, portador de la cédula de identidad 5-0273-0355, ROGER JIMÉNEZ FAJARDO, portador de la cédula de identidad 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, portador de la cédula de identidad 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, portador de la cédula de identidad 1-0538-0903, RONALD SOLÍS JIMÉNEZ, portador de la cédula de identidad 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, portadora de la cédula de identidad 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, portador de la cédula de identidad 4-0125-0931, ROSE MARY LAWRENCE MORA, portadora de la cédula de identidad 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, portadora de la cédula de identidad 1-0852-0854, ROSIBEL BRENES ALVARADO, portadora de la cédula de identidad 4-0162-0518, ROSIBEL BRENES REYES, portadora de la cédula de identidad 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, portadora de la cédula de identidad 1-0698-0291, ROXANA GÓMEZ BARQUERO, portadora de la cédula de identidad 9-0075-0148, ROXANA HIDALGO VEGA, portadora de la cédula de identidad 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, portadora de la cédula de identidad 1-0652-0137, ROXANA MESÉN FONSECA, portadora de la cédula de identidad 1-0850-0833, ROY FERNANDO VARGAS NARANJO, portador de la cédula de identidad 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, portadora de la cédula de identidad 1- 0971-0856, SABAS GARCÍA LEAL, portador de la cédula de identidad 5-0220-0011, SANDRA PÉREZ OBANDO, portadora de la cédula de identidad 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, portador de la cédula de identidad 5-0219-0232, SAUL RETANA LÓPEZ, portador de la cédula de identidad 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, portadora de la cédula de identidad 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, portador de la cédula de identidad 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, portador de la cédula de identidad 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, portadora de la cédula de identidad 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, portadora de la cédula de identidad 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, portadora de la cédula de identidad 2-0497- 0859, SHIRLEY VÁSQUEZ CASTAÑEDA, portadora de la cédula de identidad 6-0234-0401, SILVIA CASCANTE RUEDA, portadora de la cédula de identidad 6-0241-0939, SILVIA CHINCHILLA PORRAS, portadora de la cédula de identidad 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, portadora de la cédula de identidad 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, portadora de la cédula de identidad 1-0791-0964, SILVIA ESPINOZA ACEVEDO, portadora de la cédula de identidad 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, portadora de la cédula de identidad 1-0977-0164, SILVIA PALMA ELIZONDO, portadora de la cédula de identidad 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, portadora de la cédula de identidad 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, portador de la cédula de identidad 1- 0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, portadora de la cédula de identidad 7-0091-0008, SONIA ISABEL GAMBOA ROJAS portadora de la cédula de identidad 2-0346-0839, SONIA RAMÍREZ THORPE, portadora de la cédula de identidad 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, portadora de la cédula de identidad 5-0222-0182, STEVEN PICADO GAMBOA, portador de la cédula de identidad 1-0982-0768, SUGEY FONSECA PORRAS, portadora de la cédula de identidad 1-1073-0434, SUGEY QUESADA VALERIN, portadora de la cédula de identidad 7-0116-0302, SUSANA ALFARO SOTO, portadora de la cédula de identidad 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, portadora de la cédula de identidad 1-0825-0973, TERESITA BOLAÑOS ROJAS, portadora de la cédula de identidad 1-0685-0508, TONY ACUÑA PANÍAGUA, portador de la cédula de identidad 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, portador de la cédula de identidad 5-0222-0486, VANESSA VILLALOBOS MONTERO, portadora de la cédula de identidad 2-0484-0081, VANLLY CANTILLO GAMBOA, portadora de la cédula de identidad 1-0874-0062, VERA VARGAS BARRANTES, portador de la cédula de identidad 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, portador de la cédula de identidad 1- 0730-0506, VÍCTOR FERNÁNDEZ VARGAS, portador de la cédula de identidad 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, portador de la cédula de identidad 1-0703-0316, VICTORIA OVIEDO SOTO, portadora de la cédula de identidad 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, portador de la cédula de identidad 1-0642-0719, WAIMAN HIN HERRERA, portador de la cédula de identidad 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, portador de la cédula de identidad 7-0082-0466, WALTER GONZÁLEZ FALLAS, portador de la cédula de identidad 1-0818-0248, WALTER GUEVARA LARA, portador de la cédula de identidad 6- 0180-0728, WILBERT KIDD ALVARADO, portador de la cédula de identidad 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, portador de la cédula de identidad 1-0923-0060, WILLIAM CALDERÓN NAVARRO, portador de la cédula de identidad 6-0212-0756, WILLIAM MATTHEWS SALAS, portador de la cédula de identidad 7-0084-0745, WILLIAM MORA DURÁN, portador de la cédula de identidad 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, portador de la cédula de identidad 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, portador de la cédula de identidad 5-0237-0488, XARY BRICEÑO ALVAREZ, portadora de la cédula de identidad 7-0085-0762, XINIA BARRIENTOS ARROYO, portadora de la cédula de identidad 1-0976-0204, XINIA MARÍA ZAMORA OVARES, portadora de la cédula de identidad 3-0294-0379, XINIA VEGA GUZMÁN, portadora de la cédula de identidad 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, portadora de la cédula de identidad 1-0870-0973, YARMILA ULATE YOUNG, portadora de la cédula de identidad 1- 0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, portador de la cédula de identidad 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, portadora de la cédula de identidad 1-0664-0089, YENSY CAMPOS BARBOZA, portadora de la cédula de identidad 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, portadora de la cédula de identidad 1-1404-0477, YESENIA PANIAGUA GÓMEZ, portadora de la cédula de identidad 1-0845-0494, YESENIA ZAMORA BADILLA, portadora de la cédula de identidad 1-0991-0793, YORLENDA SPENCE THOMAS, portadora de la cédula de identidad 7-0103-0835, YORLENY CHING CUBERO, portadora de la cédula de identidad 7-0119-0457, YORLENY FERRETO SOLANO, portadora de la cédula de identidad 4-0155-0255, YORLENY SALAZAR NARANJO, portadora de la cédula de identidad 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, portadora de la cédula de identidad 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, portadora de la cédula de identidad 5-0262-0980 y YURLY ARGUELLO ARAYA, portadora de la cédula de identidad 1-0870-0756. En esa resolución se dispuso que en vista de que la primera publicación del aviso se dio el 21 de marzo del 2019, de conformidad con lo dispuesto en el artículo 83 de la Ley de la Jurisdicción Constitucional, lo procedente era tener como coadyuvantes a esas personas dentro de este asunto.

Por su parte, el 16 de mayo de 2019 se apersona Karol Monge Molina en su condición de apoderada especial judicial de las personas señaladas supra, para solicitar que se corrija la resolución de las 9 horas 31 minutos del 10 de mayo de 2019, en vista de que no se incluyó a las siguientes personas que habían solicitado que se les tuviera como coadyuvantes en el escrito que presentó el 12 de abril anterior: ALLEN CORDOBA CHAVES (Hallen) con cédula 5-0271-0887; CARLOS ALBERTO SOLANO PÉREZ cédula 6-0211-0367; CARLOS CALDERÓN BARRIOS con cédula 3-0335-0644; CARLOS DARIO ÁLVAREZ ARRIETA cédula 2-0463-0645: CARLOS QUIRÓS TENORIO 1-0895-0474: CESAR AUGUSTO BARRANTES ARRIETA 1-0934-0951; EIMY ESPINOZA ANCHÍA 6-0260-0919; ELMER HERNÁNDEZ CASTILLO 5-0247-0005; FREDDY CHAJUD TORRES 6-0164-0694; GERALD HUERTAS ORTEGA 1-0926-0977; GERARDO MONGE BLANCO 1-0720-0430; GREGORIO JOSÉ HERNÁNDEZ SANDÍ 1-1016-0149; JAVIER ALVARADO SORO 2-0391-0190; JAVIER LEAL DINARTE 5-0268-0217; JORGE ANTONIO CORDERO CHACON 1-1019-0604; KAREN ALFARO VARGAS 1-0808-0716; KATIA MARCELA SABORIO SOTO 4-0137-0134; KATTIA VARGAS NAVARRO 1-0701-0539; KATTIA VARGAS VEGA 1-0810-0668; LUIS EDUARDO RODRÍGUEZ QUIRÓS 1-0605-0013; MABEL MURILLO ARCE 2-0443-0636; MARCELA MADRIZ ARCE 3-0271-0457; MARÍA VALENTINA CARMIOL YALICO 1-0744-0771; MARIO CAMACHO CAMPOS 1-0845-0638; MARLENE ACEVEDO MONTES 6-0152-0743; MARVIN DURAN PEREIRA; OMAR AGÜERO ROJAS 6-0152-0077; RALOXS ALVARADO CASCANTE 1-0873-0410; RODNEY GEORJANNY EARL BROWN 1-0930-0027; RONALD ABARCA SOLANO 3-0282-0138; SANDRA GÓMEZ AGUILAR 3-0262-0507; SANTIAGO ALFONSO ARAYA GUTIERREZ 1-0826-0278; SHIRLEY ROJAS BARRANTES 5-0240-0923; TERESA JIMÉNEZ ROJAS 6-0172-0033; VICTOR HUGO CHAVES CHAVARRÍA 2-0443-0030; y WILKIN PORRAS ALVAREZ 1-0772-0252. En consecuencia, en este acto se corrige esa omisión y se les tiene como coadyuvantes con las advertencias que se hicieron en la resolución de las 9 horas 31 minutos del 10 de mayo de 2019. De igual manera, se procede a corregir los datos de los siguientes coadyuvantes que también fueron incluidos de manera errónea en la citada resolución, lo anterior a efecto de que se lean, de manera correcta, así: AMANDO AGÜERO ARAYA (léase AMANDO y no ARMANDO) 6-0212-0007; CARLOS PORRAS MORERA 1-0752-0459; DONALDO BERMÚDEZ RODRÍGUEZ 6-0250-0554; KRISIA FUMERO ARAYA 3-0324-0912; LIGIA CASTILLO CASTILLO 3-0344-0861; LUIS FERNANDO SUAREZ JIMENEZ 1-0738-0178; MARÍA ISABEL VILLEGAS NÚÑEZ 1-0665-0648; TANIA MARÍA PÉREZ BARRANTES 1-0825-0973; WALTER GONZALEZ FALLAS 1-0818-0243; JOSÉ RUBÉN DIMAS PORTILLO 8-0070-086.

En ese oficio de 16 de mayo de 2019, la señora Karol Monge Molina también solicita que se tenga como coadyuvantes a las siguientes personas: AUGUSTO FEDERICO LEONHARDES ZAMORA, mayor, casado, empleado judicial, vecino de Desamparados de San José, cédula 6-0156-0657; ROGER GERARDO AGUILAR CEDEÑO, mayor, casado, Investigador de la Defensa Pública, vecino de San José, Desamparados, cédula de identidad 1-0583-0279; ROCÍO RAMÍREZ LEITÓN, mayor, viuda, Trabajadora Social, vecina de San José, Moravia, cédula de identidad 1-0544-0163; XINIA FERNÁNDEZ VARGAS, mayor, divorciada, Trabajadora Social, vecina de Cartago, cantón Central, cédula de identidad 1-0593-0681; y EVELYN PIEDRA VILLAFUERTE, mayor, divorciada, Contadora Pública, vecina de San José, Pérez Zeledón, cédula de identidad 1-0931-0261, aduciendo que, por razones de salud, estas personas, no pudieron firmar en aquél momento el respectivo Poder Especial Judicial junto con todo el grupo de coadyuvantes apersonados. En vista de que esa gestión a favor de estas personas se planteó el 16 de mayo de 2019, es decir, después del plazo establecido en el artículo 83 de la Ley de la Jurisdicción Constitucional, lo que procede es su rechazo por haber sido interpuesta de manera extemporánea.

Finalmente, el 2 de septiembre de 2019 se apersona Wilkko Retana Álvarez, funcionario judicial, con cédula 1-0737-0795, para manifestar que presenta coadyuvancia tardía en esta acción de inconstitucionalidad en contra de las condiciones establecidas en la Ley 9544 para optar por una jubilación. Esta gestión de coadyuvancia también se rechaza por haber sido presentada extemporáneamente, es decir, después del plazo establecido en el artículo 83 citado.

III.- Redacta la Magistrada Hernández López. Las reglas de legitimación en las acciones de inconstitucionalidad en relación con los accionantes.- El artículo 75 de la Ley de la Jurisdicción Constitucional regula los presupuestos que determinan la admisibilidad de las acciones de inconstitucionalidad, exigiendo la existencia de un asunto pendiente de resolver en sede administrativa o judicial en el que se invoque la inconstitucionalidad; requisito que no es necesario en los casos previstos en los párrafos segundo y tercero de ese artículo, es decir, cuando por la naturaleza de la norma no haya lesión individual o directa; cuando se fundamente en la defensa de intereses difusos o que atañen a la colectividad en su conjunto; o cuando sea presentada por el Procurador General de la República, el Contralor General de la República, el Fiscal General de la República o el Defensor de los Habitantes, en estos últimos casos, dentro de sus respectivas esferas competenciales. De acuerdo con el primero de los supuestos previstos por el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional, la norma cuestionada no debe ser susceptible de aplicación concreta, que permita luego la impugnación del acto aplicativo y su consecuente empleo como asunto base. En segundo lugar, se prevé la posibilidad de acudir en defensa de "intereses difusos", que son aquellos cuya titularidad pertenece a grupos de personas no organizadas formalmente, pero unidas a partir de una determinada necesidad social, una característica física, su origen étnico, una determinada orientación personal o ideológica, el consumo de un cierto producto, etc. El interés, en estos casos, se encuentra difuminado, diluido (difuso) entre una pluralidad no identificada de sujetos. Esta Sala ha enumerado diversos derechos a los que les ha dado el calificativo de "difusos", tales como el medio ambiente, el patrimonio cultural, la defensa de la integridad territorial del país, el buen manejo del gasto público, y el derecho a la salud, entre otros. Por otra parte, la enumeración que ha hecho la Sala Constitucional no es taxativa. Finalmente, cuando el párrafo 2° del artículo 75 de la Ley de la Jurisdicción Constitucional habla de intereses "que atañen a la colectividad en su conjunto", se refiere a los bienes jurídicos explicados en las líneas anteriores, es decir, aquellos cuya titularidad reposa en los mismos detentadores de la soberanía, en cada uno de los habitantes de la República. No se trata por ende de que cualquier persona pueda acudir a la Sala Constitucional en tutela de cualesquiera intereses (acción popular), sino que todo individuo puede actuar en defensa de aquellos bienes que afectan a toda la colectividad nacional, sin que tampoco en este campo sea válido ensayar cualquier intento de enumeración taxativa. A partir de lo dicho, es claro que los actores ostentan legitimación suficiente para demandar la inconstitucionalidad de las normas impugnadas. Obsérvese que, dada la gran cantidad de acciones acumuladas, hay diversidad de actores pues unos cuentan con legitimación a partir de lo dispuesto en el artículo 75 párrafo segundo porque acuden en defensa de un interés que atañe a la colectividad de servidores judiciales en su conjunto, y otros presentan acciones de inconstitucionalidad con fundamento en asuntos previos que están pendientes de resolver. En ese sentido, el primer grupo de accionantes que acuden en defensa de intereses gremiales son los que corresponden a las acciones de inconstitucionalidad número 18-007819-0007-CO (que es el expediente principal al que se le acumularon las 9 acciones restantes) presentada a favor de la Asociación Nacional de Empleados Judiciales (ANEJUD); número 18-007820-0007-CO interpuesta a favor de la Asociación Nacional de Profesionales del Poder Judicial (ANPROJUD); la número 18-008202-0007-CO presentada a favor del Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD) y de la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD); la número 18-008267-0007-CO interpuesta a favor del Sindicato Asociación de Investigadores en Criminalística y Afines; la número 18-008292-0007-CO presentada en representación de la Cooperativa de Ahorro y Crédito de Servidores Judiciales R.L (COOPEJUDICIAL R.L.); la número 18-008591-0007-CO presentada a favor de la Asociación Nacional de Investigadores en Criminalística y Afines (ANIC), la Asociación Nacional de Jubilados y Pensionados del Poder Judicial (ASOJUPEN), la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD) y el Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD); la número 18-009275-0007-CO interpuesta a favor del Sindicato de la Judicatura (SINDIJUD), la Asociación de Profesionales en Psicología del Poder Judicial (APSIPJUD), la Asociación Costarricense de Juezas, el Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD) y la Caja de Préstamos y Descuentos de los Empleados Judiciales (CAPREDE); la número 18-013217-0007-CO presentada a favor de la Asociación Costarricense de la Judicatura (ACOJUD). Los otros accionantes que presentan acciones de inconstitucionalidad en su condición personal, según lo dispuesto en el artículo 75 párrafo primero de la Ley de la Jurisdicción Constitucional, y que cuentan con recursos de amparo que están pendientes de resolver, son los contenidos en la acción de inconstitucionalidad; en la número 18-014168-0007-CO y en la número 19-001720-0007-CO. La Sala considera que todos los actores involucrados se encuentran perfectamente legitimados para accionar -con las excepciones que se dirán- a la luz de lo que disponen los párrafos 1º y 2° del artículo 75 de la Ley de la Jurisdicción Constitucional. Aunado a lo anterior, las objeciones de inconstitucionalidad que se plantean, tratan en efecto, de materia cuya constitucionalidad procede revisar en esta vía. Además, los actores cumplieron los requisitos estipulados en los numerales 78 y 79 de la Ley de rito. En conclusión, las acciones de inconstitucionalidad acumuladas son admisibles, por lo que debe entrarse de inmediato a discutir el objeto y el fondo del asunto con las excepciones que de seguido se exponen.

IV.- Redacta la Magistrada Hernández López. En cuanto a la admisibilidad parcial de la acción 19-001720-007-CO. En la acción de inconstitucionalidad 19-001720-007-CO, la recurrente utiliza como juicio base el recurso de amparo 18-17019-007-CO. Hay que recordar que el artículo 75 de la Ley de la Jurisdicción Constitucional, como requisito de admisibilidad de la acción de inconstitucionalidad, exige, aparte de la existencia de un juicio base en el que se alegue la inconstitucionalidad que se reclama en la acción, que además exista una conexidad entre ambos procesos, es decir, el juicio base y la acción de inconstitucionalidad y que sea medio razonable de amparar el derecho de la tutelada. En ese sentido, en lo que respecta a la acción de inconstitucionalidad interpuesta, hay una serie de argumentos que vienen planteados para tutelar a la colectividad de servidores, funcionarios, jubilados y pensionados, que no tienen relación con su situación concreta y por lo tanto, deben ser rechazados por razones de admisibilidad. Únicamente pueden ser admitidos, en su caso, por tratarse de un reclamo particular, no basado en ningún interés difuso, sino que, por el contrario, tratándose del supuesto regulado en el párrafo primero del artículo 75 de la Ley de la Jurisdicción Constitucional, no pueden aceptarse reclamos que no estén directamente relacionados con su situación concreta, porque no serían medios razonables de tutelar su derecho. En ese sentido, se declaran inadmisibles, en el caso de la acción de inconstitucionalidad 19-1720, los reclamos que no se afectan la situación de la accionante que es una funcionaria judicial que indica haber ingresado a la Fiscalía el 2 de enero de 1988. En ese sentido, no le afectan los temas relativos a la reclamada “pertenencia” del Convenio 102 de la OIT (artículo 29 inciso a), según el cual estima que existe un derecho de “pertenencia” al cotizar durante 20 años en un determinado régimen. Asimismo, deben rechazarse por inadmisibles, los reclamos que pretenden tutelar a la generalidad de servidores, funcionarios, pensionados y jubilados, que no tienen relación con su situación concreta, entre éstos, los que pretenden tutelar a los servidores judiciales que a su juicio recibirán pensiones menores que las pensiones del régimen del IVM de la CCSS y los que se encuentran en categorías distintas a la suya, como los que han recibido salarios inferiores a 1,5 millones de colones durante los últimos 20 años, que señala, son el 62% de los servidores del Poder Judicial. En la acción de inconstitucionalidad 18-14168-007-CO, si bien se trata de una acción en que los accionantes vienen a título personal, con base en la legitimación que les otorga el párrafo primero del artículo 75 de la Ley de la Jurisdicción Constitucional, al existir amparos base de su acción, sí se admiten la totalidad de la misma, porque las impugnaciones sí guardan una relación y conexidad directa con su situación, de modo tal que de ser estimados, serían medios razonables de amparar su derecho.

V.- Redacta la Magistrada Hernández López. Sobre la omisión de consultar a la Caja Costarricense de Seguro Social y a los Bancos del Estado, el proyecto tramitado en el expediente No. 19.922. Algunos de los accionantes argumentan que aun cuando la normativa establece nuevas funciones, competencias y obligaciones a dependencias de la Caja Costarricense de Seguro Social, y de los Bancos del Estado, en cuanto a sus posibilidades de crédito al someterlos a obligaciones porcentuales de inversión, la Asamblea Legislativa no les formuló consulta para que se pronunciaran en relación con los artículos del proyecto que eventualmente les podría afectar, estimando que ello lesiona el Derecho de la Constitución. Sobre el particular debe tomarse en cuenta que este Tribunal ha resuelto, en forma reiterada, que la legitimación para defender la autonomía, por la vía de acción de inconstitucionalidad, le compete al ente público respectivo. Así, por ejemplo, en la sentencia número 2008-017295 de las 14 horas y 48 minutos del 19 de noviembre del 2008 dispuso que “sólo la institución autónoma afectada por la omisión en el trámite legislativo es la que se encuentra legitimada para accionar” (en el mismo sentido la sentencia número 2008-014190 de las 10 horas del 24 de septiembre de 2008). Debe decirse que en un caso donde se alegaba una posible violación a la autonomía de la Caja Costarricense de Seguro Social, esta Sala insistió en que“(…) la línea jurisprudencial de este Tribunal es clara al establecer que, cuando en una acción de inconstitucionalidad se alega la defensa de intereses institucionales, se está ante un supuesto de lesión individual y directa, razón por la cual deben ser sus propios representantes legales y, no un tercero, quienes acudan ante esta Sala en su defensa (ver en este sentido las sentencias números 2009-00305 de las 15 horas 13 minutos del 14 de enero de 2009, 2008-017295 de las 14 horas 48 minutos del 19 de noviembre de 2008, 2016-01669 de las 9 horas 30 minutos del 03 de febrero de 2016 y 2017-008159 de las 9 horas 15 minutos del 2 de junio de 2017, entre otras). En el mismo sentido se ha pronunciado la Procuraduría General de la República en su respuesta a esta acción, es decir, en el sentido de que los accionantes no tienen legitimación para interponer estos reclamos en particular. Al efecto, señala la Procuraduría General de la República:

“Sostienen los accionantes que durante el trámite legislativo debió otorgarse audiencia a la CCSS y a los bancos del Estado, pues se afectó su autonomía al atribuirles funciones, competencias y obligaciones sin requerir de previo su parecer.

Sobre este aspecto, debemos señalar que la defensa de la autonomía de la CCSS y de los bancos del Estado, debe ser hecha por esas instituciones, no por las organizaciones sindicales del Poder Judicial, ni por exfuncionarios de ese Poder.

Es evidente entonces que, en este aspecto, existe una falta de legitimación de los accionantes para plantear los reparos que formulan. Ya esa Sala lo ha resuelto así en otras ocasiones. A manera de ejemplo, en la sentencia n.° 14651-2017 de las 9:30 horas del 13 de setiembre del 2017, indicó lo siguiente:

"debe señalarse que reiteradamente este Tribunal Constitucional ha indicado que la defensa de la autonomía de una institución debe hacerla ante esta instancia esa misma entidad y no un tercero (votos Nos. 2008-014190 de las 10:00 hrs. del 24 de septiembre de 2008, 2008-017295 de las 14:48 hrs. del 19 de noviembre del 2008, 2016-01669 de las 9:3O hrs. del 03 de febrero de 2016 y 2017-008159 de las 9:15 hrs. del 2 de junio de 2017. En el sub judice, el accionante actúa en su condición de representante de una sociedad anónima, motivo por el cual no se encuentra legitimado para actuar en defensa de la autonomía municipal" La sentencia referida es clara en su planteamiento y remite a varios antecedentes que el actor puede consultan".

Partiendo de lo anterior, las razones de inconstitucionalidad planteadas por los accionantes por la posible violación de la autonomía de la CCSS y de los bancos del Estado resulta inadmisible.” En la línea de los argumentos supra citados, debe decirse que la Ley que rige esta Jurisdicción faculta para promover acción de inconstitucionalidad contra las normas que tengan efectos negativos en derechos fundamentales propios de los accionantes, y en el caso en estudio, el que se haya o no realizado la consulta a la Caja Costarricense de Seguro Social o a los bancos estatales, no afecta a los promoventes de esta acción en forma directa en sus derechos por cuanto, los afectados directos del alegado vicio de procedimiento no lo constituyen los trabajadores en sí, sino la institución a quien se arguye que no se le consultó, esto es propiamente a la Caja Costarricense del Seguro Social a la que constitucionalmente le corresponde la administración de los seguros sociales, de conformidad con lo dispuesto en el artículo 73 de la Constitución Política, así como a los bancos del Estado en defensa de su autonomía; en consecuencia, únicamente dichas instituciones podrán interponer legítimamente dicha inconstitucionalidad ante esta Sala. De esta manera, al no encontrarse los promoventes legitimados para accionar en este extremo, la acción es improcedente en cuanto a estos alegatos.

VI.- Redacta la Magistrada Hernández López. Objeto de la impugnación.- Los accionantes impugnan la Ley número 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial”, contenido en la Ley número 7333 que es la Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas, impugnación que se hace in toto, y en específico contra los artículos: 224, 224 bis, 226, 227, 236, 236 bis y 239, así como también contra el Transitorio VI de la Ley Orgánica del Poder Judicial, reformados mediante Ley No. 9544 de 24 de abril de 2018. Además, los accionantes plantean inconstitucionalidad en contra del Artículo 208 bis del Reglamento Interno de la Asamblea Legislativa. Las normas se impugnan en cuanto al procedimiento legislativo y en cuanto al fondo o contenido de la ley.

VII.- Redacta la Magistrada Hernández López. Antecedentes y motivos que propiciaron la emisión de la Ley 9544.- Antes de analizar los motivos que propiciaron la emisión de la reforma a la normativa que regula el régimen de pensiones del Poder Judicial, es importante entender el contexto de los distintos regímenes de pensiones y sus características y en cuál de ellos se ubica el del Poder Judicial, para entender el universo de sistemas que tiene nuestro país y las características específicas del régimen en análisis. Así, de acuerdo a la Superintendencia de Pensiones, en nuestro país, los regímenes de pensiones se clasifican en tres grandes categorías: los regímenes básicos de pensiones, los complementarios y los no contributivos. El régimen de Pensiones del Poder Judicial se nutre de una contribución tripartita (aporte de los trabajadores, el patrono y el Estado). Entre los regímenes básicos que tiene nuestro país, están:

Régimen de Invalidez Vejez y Muerte (CCSS) al que pertenece la mayoría de la población. Fondo de Capitalización Colectiva del Magisterio Nacional Fondo de Jubilaciones y Pensiones del Poder Judicial Fondo de Pensiones del Benemérito Cuerpo de Bomberos Regímenes Administrados por la Dirección Nacional de Pensiones Por su parte los regímenes complementarios son:

Fondo de Jubilaciones de los Empleados del Banco de Costa Rica Fondo de Garantías y Jubilaciones del Banco Crédito Agrícola de Cartago Fondo de Garantías y Jubilaciones del Banco Nacional de Costa Rica Fondo de Garantías y Jubilaciones del Banco Central de Costa Rica Fondo de Garantías y Jubilaciones del Instituto Costarricense de Electricidad Fondo de Garantías y Jubilaciones de la Refinadora Costarricense de Petróleo Fondo de Retiro (FRE-CCSS) Fondo de Garantías y Jubilaciones de los Empleados del Instituto Costarricense de Turismo Fondo de Jubilaciones y Pensiones de los Vendedores de Lotería Por su parte, la Dirección Nacional de Pensiones del Ministerio de Trabajo y Seguridad Social administra los siguientes regímenes:

Regímenes contributivos:

Empleados de Comunicaciones Excepciones, Ley No. 4 del 23-09 1940 y Ley 6611 del 13-08-1981 Músicos de Bandas Militares, Ley 15 del 15-12-1935 Hacienda y Diputados, Ley No. 148 del 23-08-1943, Ley No. 7013 del 18-11-1985. Reparto del Magisterio Nacional, Ley No. 2248 del 05-09-1958, Ley No. 7268 del 14-11-1991 y Ley 7531 del 10-07-1995. Obras públicas y Transportes, Ley No. 19 del 04-11-1944 Registro Nacional, Ley No. 5 del 16-09-1939 y reformas Empleados del Ferrocarril al Pacífico, Ley No. 264 del 23-08-1939 Ley Marco, Ley No. 7302 del 15-07-1992 Regímenes no contributivos Benemérito, Ley 3825 del 07-12-1966 Derecho Guardia Civil, Ley No. 1988 del 14-12-1955 Ley General de Pensiones (Gracia) Ley 14 del 02-12-1935. Premios Magón, Ley 6984 del 17-04-1985 Subsidio de desempleo Prejubilados Incop, Ley No. 8461 del 16-10-2008 Prejubilados de Incofer, Ley No. 8950 del 12-05-2011.

(clasificación que consta a folio 230 y 231 Tomo 1 del expediente legislativo) Mediante Ley No. 34 del 9 de julio de 1939 se constituyó el Fondo de Jubilaciones y Pensiones de los servidores y servidoras judiciales; luego éste pasó a formar parte de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937, constituyendo el título XI: “De las Jubilaciones y Pensiones Judiciales”.

En los años (1959, 1961,1962, 1963, 1964, 1971, 1983) se hicieron varias reformas a su articulado, en cuanto a requisitos de edad y años de servicio para jubilarse, así como la determinación de los beneficiarios. Posteriormente con la Ley No. 7333 de 5 de mayo de 1993 se reformó integralmente la Ley Orgánica del Poder Judicial No. 8 y el título correspondiente a las Jubilaciones y Pensiones Judiciales y el título correspondiente a las Jubilaciones y Pensiones Judiciales, pasó a ser el IX; posteriormente la Ley 7605 del 2 de mayo de 1996 reformó varios artículos de este título, buscando la sostenibilidad del Fondo.

En los años 2012 y 2013, producto de las revelaciones hechas por estudios actuariales en cuanto al déficit actuarial, el Poder Judicial inició un proceso interno tendente a elaborar una propuesta de reforma, para revertir el déficit actuarial que había quedado evidenciado. En dicho proceso, las organizaciones gremiales presentaron a la Corte Suprema de Justicia, según consta en la sesión No. 12-2013 celebrada a las 9 horas del dieciocho de marzo del 2013, su criterio y propuestas. (ver Informe Integrado Jurídico Económico AL-DEST-ITS-307-2016, folio 225 y ss Tomo I expediente legislativo).

Según se desprende de la exposición de motivos visible en folio 2 del expediente legislativo No. 19.922 al que se le asignó el título de “Proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, la promoción de esa iniciativa se dio ante el interés de varias bancadas legislativas de “(…) realizar una reforma integral a todo el régimen de pensiones, con el objetivo de eliminar disposiciones abusivas, racionalizar el gasto, dar estabilidad a los diversos regímenes especiales de pensiones y al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. Lo anterior, con fundamento en los principios de solidaridad, igualdad, justicia redistributiva y eficiencia, los cuáles son pilares dentro de nuestro estado social de Derecho”. Igualmente, aquella exposición dispone que “el proyecto pretende realizar las modificaciones y adiciones necesarias a esos regímenes especiales, con el fin de corregir situaciones que van en detrimento de la sostenibilidad de estos. De la misma forma se realizan modificaciones a toda aquella normativa conexa que resulta necesaria para subsanar los problemas detectados. Situaciones como el pago de pensión a fallecidos, aumentos desproporcionados, pensiones de lujo, beneficios vitalicios, falta de supervisión y control, entre muchas otras falencias, son las que pretende corregir la presente iniciativa. Bajo las consideraciones anteriores, cabe indicar que se desea eliminar o modificar aquellas disposiciones que no corresponden a la realidad fiscal del país, así como los beneficios desproporcionados que no resultan acordes con nuestra situación financiera. También consta la preocupación por las finanzas del país, al señalar: “se desea eliminar o modificar aquellas disposiciones que no corresponden a la realidad fiscal del país, así como beneficios desproporcionados que no resultan acordes con nuestra situación financiera”.

“Lo anterior, mediante un estudio integral de los regímenes de pensiones, en lugar de tramitar iniciativas separadas, que si bien resultan muy loables, en la totalidad de los casos vienen a corregir situaciones puntuales. Estamos convencidos que para coadyuvar con la hacienda pública y la sostenibilidad de estos regímenes, es necesario realizar reformas estructurales que vengan a significar un mayor impacto en la salud financiera de los mismos.

Las y los diputados que suscribimos el presente proyecto, estamos convencidos de que en nuestras manos se encuentra la sostenibilidad de muchos regímenes de pensiones y consideramos que es un deber ineludible atacar todas aquellas inconsistencias que puedan estar ocasionando un daño a la estabilidad financiera de un determinado régimen.” Como se desprende del expediente legislativo, la intención del proyecto era abarcar varios regímenes de pensiones, entre ellos se dijo expresamente que se debía “incluir dentro de esta propuesta al de (sic) Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial y presentar una propuesta sólida y responsable ante la situación que atraviesa”. Los proponentes del proyecto manifiestan específicamente en cuanto a este régimen que “como legisladores nuestra preocupación radica fundamentalmente, en la necesidad de revisar y, si es del caso, limitar los beneficios que reciben los afiliados a dicho régimen, el cual se caracteriza, por no tener un tope para las pensiones que se otorgan, por permitir que los servidores judiciales puedan acogerse a su pensión a los sesenta años de edad, disfrutando de una jubilación igual al salario promedio de los últimos veinticuatro mejores salarios mensuales ordinarios, entre otros aspectos que ponen en riesgo el equilibrio del régimen. Muchos de los servidores judiciales, se pensionan a edades tempranas, y en algunos casos disfrutan de “pensiones de lujo”, que producen un peligro latente y un riesgo a la sostenibilidad del Fondo en mención, haciendo patente las grandes diferencias que existen entre los regímenes de pensiones que existen en nuestro país, además se ha puesto en evidencia la desproporción de diferentes pensiones de servidores judiciales, lo cual nos obliga a analizar con detenimiento esta situación y buscar una solución seria y responsable (…) y realizarle las reformas necesarias para que pueda adaptarse a la realidad social y económica de nuestro país, y revestirlo de la sostenibilidad que necesita para salir avante y nutrirlo de fondos para sus (sic) funcionamiento adecuado”.

Durante el año 2012 se presentaron resultados de estudios actuariales que han generado una alerta real sobre la necesidad de aplicar ajustes a esta legislación con el propósito de revertir desequilibrios actuariales que han quedado en evidencia y que han creado la inquietud de revisar este régimen y realizarle las reformas necesarias para que pueda adaptarse a la realidad social y económica de nuestro país, y revestirlo de la sostenibilidad que necesita para salir avante y nutrirlo de fondos para su funcionamiento adecuado” A partir del expediente legislativo, se observa que el proyecto inicial estaba dirigido a reformar todos los regímenes de pensiones; sin embargo, posteriormente el Poder Legislativo se centró en tramitar por separado la reforma al Régimen de Jubilaciones y Pensiones del Poder Judicial. Así, se puede constatar que en la sesión ordinaria No. 15 de la Comisión Especial Encargada de Conocer y Dictaminar el Proyecto de Ley “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922”, presentó una moción de texto sustitutivo nuevo a partir del cual se cambia formalmente el nombre del proyecto para denominarse “Reforma del Título IX de la Ley Orgánica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales No. 7333 del 5 de mayo de 1993 y sus reformas” (folios 1674 y 1717 del Tomo 7 del expediente legislativo); moción de texto sustitutivo que fue aprobada con 7 diputados a favor y 1 en contra (folio 1731 tomo 7) .

Es importante agregar que de previo a la presentación de este proyecto de reforma la Superintendencia de Pensiones (SUPEN) había manifestado su preocupación por la insostenibilidad del Régimen de Pensiones del Poder Judicial (ver Revista de Pensiones No. 23 SUPEN setiembre 2014 p. 16 ). Entre los aspectos señalados se indica:

Inversión: Supen critica que el Poder Judicial invierta todo en instrumentos emitidos por entidades del sector público (y hasta el vencimiento) porque genera un alto riesgo de concentración y limita la posibilidad de lograr mayores rentabilidades a riesgos razonables.

Sostenibilidad: para los beneficios a los pensionados hasta su extinción, el fondo requiere 764,889,6 millones; no obstante, solamente dispone de 369,065.2 millones acumulados, es decir, apenas un 48.2% de lo necesario. Por su parte, la reserva en formación del Fondo de Jubilaciones y Pensiones del Poder Judicial al 31 de marso de 2014 es de cero. Además, en los dos últimos años, la tasa de crecimiento de nuevos pensionados comenzó a acelerarse y superó el 5% interanual.

Privilegios: en promedio una pensión del Régimen del Poder Judicial es cinco veces más alta y sus afiliados se jubilan 20 años antes que en el IVM (régimen de Invalidez, Vejez y Muerte). Además, el beneficio corresponde al salario promedio de los últimos 24 meses, lo cual equivales a cerca de 100% del salario recibido. En caso de muerte, el cónyuge recibe la totalidad del monto del beneficio que venía disfrutando el jubilado. También se permite que los funcionarios puedan retirarse con pensión completa a los 55 años. (ver folio 241, Tomo 1 del expediente legislativo) La Supen sugirió que cualquier cambio tenía que basarse en un estudio actuarial con un grado de certeza razonable, la efectividad de las medidas para alcanzar el equilibrio actuarial del régimen a largo plazo (folio 264 tomo 2 del expediente legislativo).

El Consejo Superior del Poder Judicial, en oficio 5211-DE-2016 (folio 683 tomo 3 del expediente legislativo) señala que, en sesión del 6 de diciembre de 2007, artículo XLII, habían acordado que los estudios actuariales serían cada dos años y que en el año 2014 dispusieron contratar a una empresa representada por Eduardo Melinsky que era quién había hecho el estudio anterior, pero no se pudo ejecutar el contrato por no estar adscrito ese profesional al Colegio de Ciencias Económicas de Costa Rica que era un requisito de la contratación ya que el señor Melinsky es un actuario matemático residente en otro país. Luego se dio otra licitación infructuosa, lo cual los hizo buscar la alternativa de utilizar el Convenio de colaboración que tiene firmado la Institución con la Universidad de Costa Rica, para que trabajara con el equipo técnico del Poder Judicial y que se evaluara la solvencia financiera actual del Fondo y su proyección. En el Convenio R-CONV-005-2016 suscrito entre el Poder Judicial y la Universidad de Costa Rica, consta que existirán varios equipos interdisciplinarios entre las partes. En el caso del Poder Judicial en el Equipo Ejecutivo, tendrá una participación un representante de los Gremios del Poder Judicial (folio 689 y 1154) por primera vez se dio representación a los trabajadores en un estudio actuarial. En comparecencia ante la Comisión el Licenciado Hernández Solano señaló:

“Por primera vez en un estudio actuarial se les da representación a los trabajadores, en esta ocasión con el estudio de la UCR, por primera vez.

Hay un comité técnico dentro del Poder Judicial y un comité técnico dentro de la UCR, ellos son los que analizan todas las partes de las cinco fases que tiene el convenio UCR-Poder Judicial. El Comité Ejecutivo dentro del Poder Judicial es el que avala cada fase, la prueba, le hace consultas con el Comité Técnico y al final de cuentas le damos la aprobación”.

“Por parte de la institución, hay un equipo ejecutivo… Está el Jefe del Departamento Financiero Contable de los gremios, formando parte de este equipo técnico. ¿Por qué toma la institución esa decisión? Bueno, porque la experiencia nos había demostrado que, en procesos anteriores, los cuestionamientos de los gremios al estudio, se venían a dar al final del estudio y entonces entrábamos en una conflictiva interna, que no era sana. De esta forma, consideramos importante incorporar al representante gremial, como parte de este equipo ejecutivo y participa activamente y revisa los productos, como parte del resto del equipo que está conformado.” (folio 1325 tomo 6 del expediente legislativo) Allí se pactaron las condiciones de cada producto y el acuerdo se comunicó a la Comisión Legislativa Especial encargada de conocer y dictaminar el proyecto de Ley “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222” (folio 775 folio 4 expediente legislativo) “En el proceso se daban observaciones, incluso quiero decirles que la Auditoría Judicial también participó en este proceso de revisión, y hubo observaciones por parte de don Arnoldo, en su momento representante gremial, por parte de la Auditoría, se le trasladaban al IICE, ellos nos daban una respuesta, en algunos casos corrigieron los productos porque este proceso se da en una versión preliminar para discusión o para valoración y luego, satisfechos con esa corrección se le daba la aprobación y visto bueno” ( folio 2335 tomo 10 expediente legislativo) A folios 843 del expediente legislativo, se aporta el estudio actuarial anterior de Melinsky, Pellegrinelli y Asociados S.A, que a folio 939 que entre sus recomendaciones señala, que para el año 2026 se visualiza un año crítico con un importante déficit actuarial del 50% de los capitales constitutivos de los beneficios en curso. Señala que “se requieren medidas sustantivas y efectivas tendentes a reducir el déficit actuarial y postergar sustantivamente el año crítico”. Agrega que a fin de tomar medidas de ajuste debe tenerse presente que se trata de un régimen previsional en curso donde deben ser compatibilizados los siguientes conceptos:

Beneficios en curso Tiempo de servicio prestado por los servidores en actividad Actuariales (reservas matemáticas requerida, déficit operativo, déficit actuarial, año crítico, prima media requerida de equilibrio) Legales Capacidad contributiva de los afiliados Capacidades presupuestarias del Poder Judicial Capacidades presupuestarias del Poder Ejecutivo Agrega. “todo análisis jurídico debe tener en cuenta que los ajustes que se señalan resultan necesarios a efectos de mejorar la situación de déficit actuarial y año crítico que implica un Riesgo Institucional que pone en peligro el patrimonio del conjunto de los afiliados colectivos y pasivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial. (lo resaltado no es del original) “Es decir que el elemento jurídico básico a tener en cuenta es que los derechos individuales reconocidos por la ley actual, deben considerarse derechos en expectativa supeditados al derecho colectivo respecto de la factibilidad de las prestaciones a la masa de afiliados no sólo en cuanto a su incidencia en el ámbito del Poder Judicial sino por su potencial efecto en el Presupuesto Nacional.” De esta manera tomando en consideración el Convenio 102-OIT ratificado por Costa Rica y la jurisprudencia reciente, de conformidad con las reuniones de trabajo, se considera que los cambios no deben afectar a quienes se encuentran dentro de los 18 meses de alcanzar su beneficio jubilatorio al momento de la sanción de las modificaciones.” Las organizaciones de servidoras y servidores judiciales se dieron a la tarea de contratar a un actuario matemático propio para que se refiriera al estudio de Melinsky, Pellegrinelli y Asociados S.A del 2012, en el cual se indica que coincide en la mayoría de las recomendaciones dadas en ese informe; no obstante, presenta una diferencia en cuánto al año crítico en que el Fondo de Jubilaciones podría tener problemas, que pasa del 2026 al 2050. (ver folios 1053 y ss tomo 5 del expediente legislativo) La diferencia entre los criterios actuariales y el tiempo transcurrido (varios años) justificaron la decisión supra citada del Poder Judicial de convenir un nuevo estudio con la Escuela de Economía de la Universidad de Costa Rica, supra mencionado. Para esperar el resultado de esos estudios la Comisión encargada de las reformas en la Asamblea Legislativa, acordó varias prórrogas al plazo acordado para dictaminar a la espera de esos productos (ver folios 1186, 1224 tomo 5 del expediente legislativo) “considerando además que los estudios técnicos son indispensables para cualquier propuesta sobre la materia y de no haber respaldo técnico se correría con el riesgo de que cualquier modificación pueda ser declarada inconstitucional, es que se propone la siguiente modificación de ampliación del plazo a la Comisión Especial que estudia la reforma a la ley en cuestión…” (folios 1224, 1230 y ss tomo 5 del expediente legislativo) En la comparecencia de la Directora Ejecutiva del Poder Judicial (tomo 1322 y ss tomo 6 del expediente legislativo) señala que desde el último estudio actuarial de Melinsky la situación del déficit actuarial pasó de 2.48 millones de millones “a un escenario que ronda los 5 mil millones de millones”. Ante la pregunta de la Diputada Piszk Feinzilber: “¿Entendería bien, si interpreto que la situación es peor de lo que habíamos imaginado?”, la respuesta de la Directora Ejecutiva es: “Si. Han transcurrido desde el 2012, hasta la fecha, cuatro años. No se han tomado decisiones y la situación ha empeorado”. (folios 1338 y 1339 tomo 6 del expediente legislativo) Agrega la Diputada Piszk Feinzilber:

“Yo lo que quiero es que quede aquí muy claro, es que la preocupación de nosotros no está basada ni en un capricho” … sino que en que está clarísimo que mientras no se tomen decisiones la situación va a ir empeorando”.

“Sé y nosotros incluso nos habíamos comprometido a que íbamos a esperar a que hubiese un estudio actuarial completo para tomar las decisiones de orden, no sé si la palabra correcta es numérico o no es numérico, pero en cuanto a aportes, pero bueno, creo que está clarísimo que existe una preocupación de nuestra parte, que la Corte debe ser consciente de eso, de que aquí, diay, son todos los costarricenses los que vamos a tener que pagar, si esta cosa se sigue alargando y desde ese punto de vista, nosotros evidentemente como legisladores, que tenemos que tomar una decisión…” ( folio 1343 mismo tomo) En el mismo sentido, la Diputada Guerrero indicó: “Reiterar lo que dijo Álvaro Ramos. Este no es un tema en contra, es a favor de la clase trabajadora. Ese texto sustitutivo mejora pero no sostiene la sanidad del régimen. Un régimen que va a terminar en el presupuesto nacional de la República, si se quiere la sanidad, un régimen además que no garantiza la expectativa de pensión de las personas que hoy están cotizando o tendrán que entrar a cotizar el doble; igual que el patrono e igual que el Estado. Es decir, va al presupuesto central…” (folio 1754 tomo 8 expediente legislativo) A partir del folio 1321 consta la comparecencia del Dr. Max Soto Jiménez del Instituto de Investigación Económicos de la Universidad de Costa Rica y parte de su equipo, adelanta a la Comisión que dentro de los hallazgos, el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (en adelante IICE) encontró que el déficit actuarial es 9.7 veces el monto de las reservas acumuladas y es un 36% del valor presente de todo el pasivo del régimen y que el texto sustitutivo que se discute en la Comisión es insuficiente para la garantizar la sostenibilidad del régimen de pensiones del Poder Judicial. (ver folio 1352 tomo 7 expediente legislativo). Esa conclusión se repite en la entrega del producto #3 del IICE que indica que el texto sustitutivo propuesto, mejora la situación, pero no sirve para garantizar la sostenibilidad del régimen. (folios 1600 y ss en particular folios 1633 1634, tomo 7 del expediente legislativo). Esa versión contó con las observaciones de los equipos contraparte (folio 1601 mismo tomo) Como reacción al estudio técnico, la Comisión presenta un nuevo texto sustitutivo del proyecto de reforma el 29-3-2017 (ver folios 1673 y ss mismo tomo), que se aprueba (folios 1731 y ss mismo tomo) A tomo 10 (folios 2274 y 2275) consta la intervención del Dr. José Antonio Cordero Peña del IICE, en el mismo sentido sobre la gravedad de la situación del fondo y la necesidad de tomar medidas:

“En realidad es evidente, que el fondo en este momento es insolvente…Si continuamos como están las cosas en estos momentos, lo que va a pasar es que las personas que se vayan jubilando los próximos años; van a comerse los recursos del fondo de las generaciones futuras y vean que curioso, como estamos todos tan longevos, también se van a comer los fondos los que van a financiar a ellos cuando tengan noventa años, cuando tengan noventa, noventa y cinco años, alguien va a tener que llegar a decirle, mire sabe qué, su pensión ya no va a ser factible, parecido como les pasó a algunos afiliados de fondos de pensión privados, en Chile.” De las actas se deduce una intención clara de la mayoría de los integrantes de la Comisión de esperar la totalidad de los productos del IICE, por esa razón se amplió varias veces el plazo de análisis del proyecto y se hicieron varios textos sustitutivos, asimismo, de dictaminar con apego al criterio técnico, según se desprende de las siguientes afirmaciones:

“Bueno, primero que nada no entiendo por qué los compañeros del frente Amplio quieren revisar una votación de más de treinta y ocho votos que lo que pretende es ampliar el plazo…

En segundo lugar, yo quiero que aquí quede muy claro que nunca, nunca se dijo que se iba a dictaminar sin tener los estudios actuariales de la Universidad de Costa Rica.

En todo momento esta comisión manifestó que iba a dictaminar con criterio técnico, con criterio responsable y con los números actuariales, ahora también tengo que decir que aquí hay una enorme preocupación y un reclamo que desde aquí le hacemos a la Corte, porque desde setiembre del año pasado nos vienen diciendo que el estudio actuarial está en noviembre, posteriormente nos dicen que está en enero, posteriormente nos dicen que hasta en abril y hoy nos dicen que está hasta junio.” (folio 1810 tomo 8 del expediente legislativo) Por otra parte, en la comparecencia el Lic. Álvaro Ramos Chaves, Superintendente de la Superintendencia de Pensiones (Supen) (ver folios 1692 y ss mismo tomo) y entre las observaciones que hace, propone como sugerencia para ayudar a reducir el déficit actuarial de 5 mil millones de millones, la posibilidad de introducir una contribución especial solidaria, progresiva con algún tope para bajarla a un millón de millones de colones y una Junta Administradora que sería un órgano adscrito al Poder Judicial con desconcentración máxima y personalidad jurídica instrumental, que se financie con un pago de todos de un 5x1000 sobre salarios y pensiones. Asimismo, recomienda una transición de 18 meses para la nueva legislación, de acuerdo a la jurisprudencia nacional (folio1711 mismo tomo). Luego rinde informe escrito a folios 1852 y siguientes sobre el texto sustitutivo consultado) A folio 1861 del tomo 8 del expediente legislativo el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE), entrega su informa IICE_4, y entre las conclusiones señala que de la comparación del texto vigente que rige las pensiones, el texto sustitutivo y el proyecto enviado por la Corte, ninguno de los escenarios garantía solvencia actuarial a largo plazo. En lo que interesa señala la Conclusión 3:

“De la comparación de los diferentes resultados obtenidos en cada uno de los Marcos Normativos (Vigente vs Texto Sustitutivo vs Corte Plena), se evidencia que:

-los principales indicadores de solvencia actuarial aquí cuantificados (el Balance Actuarial y el respectivo indicador de “Nivel de Insolvencia” a 100 años plazo) bajo el Marco CORTE PLENA, mejoran con respecto a los obtenidos bajo el MARCO VIGENTE; pero no lo suficiente como para poder establecer en forma objetiva y técnicamente rigurosa-, solvencia actuarial en el largo plazo.

-la diferencia entre esos mismos dos indicadores de solvencia actuarial (el Balance Actuarial respectivo indicador “Nivel de Insolvencia” a 100 años plazo) calculados bajo el MARCO CORTE PLENA con respecto los calculados bajo el MARCO TEXTO SUSTITUTIVO no es significativa. En ninguno de esos dos marcos normativos cuantificados, se pudo comprobar solvencia actuarial a largo plazo.” (folio 1895 mismo tomo) A folio 2155 y ss del Tomo 9 del expediente legislativo consta el producto IICE-6 Informe Final: “Recopilación e Informe Final: Conclusiones y recomendaciones”, que reitera que bajo el escenario vigente al 31/2/15 el Fondo no puede garantizar sus promesas en el largo plazo (Conclusión #2), así como que con el proyecto de ley presentado por la Corte Suprema y el de los Gremios del Poder Judicial no es viable desde el punto de vista de solvencia del Régimen (Conclusiones #1, #4, #8). Asimismo, señala que bajo el marco normativo Texto Sustitutivo del 31/12715 el Fondo no puede garantizar las promesas en el largo plazo. (Conclusión #3). Los escenarios IICE_3 y IICE_4, si pasan el test de solvencia actuarial (Conclusiones #8 y #9), así como que los escenarios IICE-3 y IICE-4, no generan cargas al Estado.

Por su parte a folios 2570 y ss del Tomo 11 del expediente legislativo, consta que la Comisión Dictaminadora, luego de conocer el Informe Final del IICE, decidió incorporar algunas de las variables contenidas en el Marco Normativo IICE-4. Entre éstas:

a- Edad para jubilación por veje ordinaria: 65 años b- Edad para jubilación anticipada por tiempo de servicio: 60 años mujeres y 62 años hombres.

c- Tiempo de Servicio: 35 años, mínimo 20 años laborados al servicio del Poder Judicial.

d- Porcentaje de monto de jubilación: 85% del promedio de los últimos 240 salarios.

e- Porcentaje de monto de pensión por viudez, hijos) 80% f- Tope de pensión máxima: 10 veces el salario más bajo que se esté pagando en el Poder Judicial.

g- Pensión Mínima: tercera parte del último sueldo del funcionario.

h- Cotización obrera: 15% i- Cotización patronal: 14,36% j- Cotización estatal: igual al IVM (Régimen Invalidez, Vejez y Muerte CCSS) k- Contribución Especial, Solidaria y Redistributiva: 50% sobre el excedente del tope máximo (10 salarios base) l- La administración del Fondo: no la asume el Fondo de Pensiones y jubilaciones del Poder Judicial m- Incentivo de postergación de la jubilación por vejez: nos e contempla en el modelo.

Ese texto dictaminado fue consultado a la Corte Suprema de Justicia (folio 2625, 2759 y ss) y fue publicado en La Gaceta Digital 147, Alcance 189 del 4 de agosto 2017 (dictamen de mayoría consultado) y en la Gaceta Digital 148 Alcance 190 7 agosto 2017 (dictamen de minoría) (ver folio 2866 Tomo 12 del expediente legislativo) El dictamen de mayoría y el de minoría fueron consultados al Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica que había elaborado las propuestas IICE_1 a IICE_6. En oficio IICE-186-2017 (folio 2942 y ss del Tomo 12 del expediente legislativo) se señala, en cuando al proyecto dictaminado por mayoría que los cambios en el cálculo del monto de la jubilación o pensión, en la edad requerida, en la contribución especial solidaria de 50%, el aporte obrero con escala diferenciada, edad de jubilación anticipada con diferencias por género, actúan a favor de la solvencia actuarial del fondo. Mientras que en el caso del dictamen de minoría (folios 2945 y ss mismo tomo) que estaba a favor de:

Utilizar un salario de referencia menor, calculado en el promedio de los últimos 10 años ajustado por el IPC. Sobre este punto se indica que esta modalidad de cálculo resulta menos favorable para la solvencia actuarial del fondo, y que su efecto debe analizarse en conjunto con otras características y parámetros como edad para jubilación ordinaria o por servicio, aporte obrero, contribución solidaria y transitorio. 85% de salario de referencia con una cotización obrera del 11%. Al respecto señala que la contribución obrera del 11% debería estar asociada a una jubilación o pensión que no exceda del 72.5% del salario de referencia calculado con los últimos 120 salarios ajustados por el IPC con el fin de mantener la solvencia actuarial. Se propone una edad de 62 años para hombres y 60 para mujeres y no se establece una edad mínima para la jubilación adelantada o por servicio. Al respecto se señala que en este escenario, aún con un aporte de 15% sobre salarios, jubilaciones y pensiones el fondo resulta insolvente si se mantiene un beneficio del 85% del salario de referencia. Agrega que “los análisis conducidos por el IICE revelan que la propuesta que surge del Dictamen de Minoría no pasa una prueba rigurosa de solvencia actuarial”. En particular se señala:

“ i. Si el aporte obrero se mantiene en el 11% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 3 millones de millones de colones, y la insolvencia actuarial sería superior al 30% de las promesas.

ii. Si el aporte obrero se incrementa al 15% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 1.7 millones de millones de colones mientras que la insolvencia actuarial sería mayor al 17% de las promesas.

Contribución solidaria del 20% del exceso sobre el tope máximo definido para jubilaciones y pensiones que se fija en 10 salarios base. Este porcentaje puede aumentarse al 50% “si así lo recomienda algún estudio actuarial y lo aprueba la Junta Administrativa del Fondo”. Respecto a esta propuesta, el IICE señala que al reducirse al 20% la contribución, se pierde parte del efecto equiparador de dicho aporte. Transitorio V. El Transitorio V propuesto por el Dictamen de Minoría prorroga los beneficios de la ley actual por 10 años adicionales a los 18 meses que se reconocen como derecho adquirido; si bien el beneficio se establece como 100% del salario de referencia de 120 salarios ajustados por el IPC, el transitorio no contempla gradualidad, de manera que su efecto en la solvencia se aproxima al del transitorio del proyecto de la Corte Plena, analizado en el Producto 4 del estudio actuarial. Dado que se trata de un período mayor y menor gradualidad, resulta menos favorable relativo al transitorio IV del Dictamen de Mayoría en cuanto a su incidencia en la solvencia actuarial del fondo. Aporte patronal. Se propone que el aporte patronal del Poder Judicial (actualmente de 14,36% de los sueldos y salarios de los afiliados) “se ajustará proporcionalmente conforme a los incrementos que la Junta Administrativa acuerde como aporte de los servidores y servidoras judiciales….”. “El equipo del IICE considera totalmente inconveniente la cláusula anterior.” “La posición es que la garantía de la solvencia no debe descansar en el aporte estatal y evitar en esa forma un mayor deterioro de la ya delicada situación fiscal del país.” Operaciones de crédito: Se propuso autorizar a la Junta Administradora para que con los ingresos del Fondo se realicen operaciones de crédito en forma directa o por intermedio de alguna institución financiera. Sobre este tema, el equipo del IICE manifestó: “…la eventual participación del fondo en operaciones de crédito debe analizarse con sumo cuidado. En particular, es necesario considerar que las operaciones de crédito requieren de infraestructura administrativa, personal especializado y experiencia, los cuales implican gastos y también riesgos que deben ser adecuadamente valorados.” Luego de estas observaciones y de la discusión legislativa, se hicieron modificaciones al proyecto de ley, en la mayoría de los casos, para adaptarlas al criterio emitido por IICE, otras para incorporar posiciones dadas durante la discusión legislativa.

Los antecedentes descritos son necesarios para entender el origen de muchas de las propuestas que fueron aprobadas y que están impugnadas en esta acción.

VIII.- Redacta la Magistrada Hernández López. Sobre la metodología de análisis de la acción. - Para facilitar el estudio de la normativa impugnada, en los considerandos siguientes se analizarán los argumentos expuestos por los accionantes, dividiéndose el análisis en dos grandes partes de conformidad con los planteamientos que se exponen a la Sala: a) alegatos de inconstitucionalidad por la forma o el procedimiento de formación de la ley; y b) razonamientos en cuanto al fondo del asunto.

ARGUMENTOS DE FORMA RELACIONADOS CON VIOLACIONES AL PROCEDIMIENNTO PARLAMENTARIO DURANTE LA TRAMITACIÓN DEL PROYECTO DE LEY QUE DIO ORIGEN A LA LEY IMPUGNADA.

IX.- Redacta la Magistrada Hernández López. Sobre la constitucionalidad del artículo 208 bis del Reglamento de la Asamblea Legislativa (ahora 234 bis). Una parte de los accionantes cuestionan la constitucionalidad artículo 208 bis del Reglamento de la Asamblea Legislativa -ahora artículo 234 bis a partir de la reforma que sufrió ese reglamento el 4 de marzo de 2019-, en tanto ese numeral permite que la Asamblea Legislativa aplique procedimientos especiales para la aprobación de proyectos de ley, sin que, de previo, se definan de manera clara las reglas a seguir, considerando que la utilización de esos procedimientos especiales infringe el principio democrático, el principio de seguridad jurídica, el principio de participación política, el principio de representación, así como también el derecho de enmienda de los diputados. Estima ese grupo de accionantes que la omisión de reglamentar con antelación los procedimientos especiales que vayan a ser aplicados a un proyecto de ley, hace nugatorios tales principios y limita la participación necesaria por parte de todos los diputados, considerando por ello que el artículo 208 bis del Reglamento de la Asamblea Legislativa, es inconstitucional, así como su aplicación o utilización para la aprobación de un proyecto de ley. Sobre este tema, la Sala ha tenido la oportunidad de pronunciarse en diversas oportunidades y el común denominador del criterio jurisprudencial ha sido el reconocimiento de la potestad con la que cuenta el legislador para auto regular su organización y funcionamiento como Poder de la República, pero también para establecer los distintos procedimientos legislativos que utilizarán en la formación de la ley (artículo 121 inciso 22 en relación con el artículo 9, ambos de la Constitución Política). Al respecto, la Sala ha señalado que, la potestad de emitir el reglamento interno de la Asamblea Legislativa, como la de reformarlo o la de interpretarlo, son parte de la "interna corporis" de las regulaciones intrínsecas dadas por el propio Parlamento en uso de sus potestades más esenciales que, a su vez, constituye una de las garantías básicas derivadas del principio democrático: la autodeterminación del Parlamento sobre su accionar interno (ver sentencia número 8408-99 de las 15 horas 24 minutos del 3 de noviembre de 1999 y número 2008-07687 de las 14 horas 50 minutos del 7 de mayo de 2008, entre otras); competencia que ha sido reconocida con anterioridad por este Tribunal:

"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, y en consecuencia ignorar o alterar esa potestad constituiría una violación grave a la organización democrática que rige al país [...] El objeto perseguido con la atribución de la competencia para autoorganizarse la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna es materia propia de esa competencia y por ende, no existe obstáculo para que, con ocasión de su ejercicio, sean establecidos otros tipos de mayorías razonables, en tanto se respeten los principios de igualdad y no discriminación" (sentencia número 0990-92 de las 16 horas 30 minutos del 14 de abril de 1992, y en el mismo sentido la sentencia la número 1311-99 de las 16 horas 42 minutos del 23 de febrero de 1999).

Igualmente ha señalado la Sala que la Asamblea Legislativa es libre y autónoma para establecer sus propias normas, respetando los valores fundamentales dentro de los que se destaca el principio democrático que, en el contexto de un cuerpo fundamentalmente político y deliberante significa también, la protección de los derechos de las minorías como criterio rector para evitar los abusos o la dictadura de las mayorías, sin perjuicio del respeto que las decisiones de la mayoría debe merecer, pero teniendo en cuenta que las minorías tienen el derecho de hacerse oír y de participar con su voto en la toma de decisiones, particularmente en aquellos actos que, por su trascendencia, configuran la esencia y razón de ser del régimen representativo. Debe tenerse presente que, al tutelarse los derechos de las minorías, se establece un criterio fundamental de convivencia democrática, extensivo a todo el ordenamiento jurídico (externa corporis), sin que pueda perderse de vista que el respeto a la minoría es un principio fundamental del ordenamiento constitucional costarricense que proviene del concepto mismo de democracia, entendiéndose que, la de Costa Rica, tiene su base en un continuo contraste de opiniones organizadas que concretan el principio: “gobierno de la mayoría con participación de la minoría, dentro de un régimen de libertad e igualdad” (ver en este sentido la sentencia número 990-92 de las 16 horas 30 minutos del 14 de abril de 1992). Para la Sala, “(…) El objeto perseguido con la atribución de la competencia para autoorganizarse la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna es materia propia de esa competencia y por ende, no existe obstáculo para que, con ocasión de su ejercicio, sean establecidos otros tipos de mayorías razonables, en tanto se respeten los principios de igualdad y no discriminación” (ver sentencia número 990-92 de las 16 horas 30 minutos del 14 de abril de 1992).

Así las cosas, el criterio de este Tribunal, es que es constitucionalmente válido, posible y necesario que la Asamblea Legislativa dicte su normativa regulatoria, la cual incluye la determinación de los procedimientos que estime pertinentes para el proceso de formación de la ley; procedimientos que, como se dijo, deben ser respetuosos de los principios vigentes en la democracia costarricense y de los derechos fundamentales de las personas. Ahora bien, específicamente en lo que se refiere al cuestionamiento de los accionantes sobre la constitucionalidad del artículo 208 bis del Reglamento de la Asamblea Legislativa (ahora 234 bis), debe indicarse que no es la primera vez que se plantea ese cuestionamiento a la Sala y en las anteriores ocasiones en que este Tribunal ha tenido que analizar el asunto, se ha manifestado, en lo que interesa, lo siguiente:

“IV.- SOBRE LA CONSTITUCIONALIDAD DEL ARTÍCULO 208 BIS DEL REGLAMENTO DE LA ASAMBLEA LEGISLATIVA. Mediante sentencia número 2008-07687 de las 14:50 horas del 7 de mayo del 2008, esta Sala se pronunció sobre la constitucionalidad del artículo 208 bis del Reglamento de la Asamblea Legislativa, oportunidad en la que, la mayoría del Tribunal, en aquella oportunidad consideró lo siguiente:

“V.- CONDICIONES BAJO LAS CUALES EL PROYECTO DE ADICION DE UN ARTICULO 208 BIS AL REGLAMENTO DE LA ASAMBLEA LEGISLATIVA RESULTA SUSTANCIALMENTE CONFORME CON EL DERECHO DE LA CONSTITUCIÓN. A) Respeto del principio democrático y de participación política y libre de las minorías: Este Tribunal Constitucional entiende que el proyecto de adición del artículo 208 bis al Reglamento de la Asamblea Legislativa resulta conforme con el Derecho de la Constitución, siempre y cuando se disponga o interprete que la moción de orden ahí dispuesta debe ser aprobada por votación no menor de las dos terceras partes del total de los miembros de ese órgano, puesto que, establecer o disponer procedimientos especiales para el trámite de la reforma al Reglamento y ciertos proyectos de ley, supone una reforma o modificación del Reglamento, esto es, de los procedimientos ordinariamente dispuestos, de modo que para cumplir con lo estatuido en el numeral 121, inciso 22), de la Constitución Política y, sobre todo, para ser congruentes con los principios democrático y de participación de las minorías en la toma de una decisión fundamental o trascendental, debe requerirse tal mayoría calificada o agravada que supone la obtención de un consenso legislativo en el que concurran, para su respeto, distintas orientaciones político-partidarias o ideológicas. A lo anterior, debe agregarse que la observancia de los recaudos establecidos en el acuerdo interpretativo No. 4084 del 10 de junio de 1999 –por tratarse del ejercicio del poder de reforma- garantiza tales principios, tal y como lo expuso esta Sala en el Voto No. 8408 de las 15:24 hrs. del 3 de noviembre de 1999, parcialmente transcrito en el considerando tercero de esta sentencia. B) Observancia del principio de seguridad jurídica: En aras de ajustar el proyecto de adición al principio constitucional de la seguridad jurídica y de evitar cualquier factor sorpresivo, este Tribunal asume que debe disponerse o entenderse que la moción que reforma el reglamento, al establecer un procedimiento especial, debe indicar de forma suficientemente explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial, de modo que como se requiere de las dos terceras partes del total de los miembros de la Asamblea Legislativa en su determinación, también, se respeten los principios democrático y de participación política y libre de las minorías..

…VII.- COROLARIO. En mérito de lo expuesto, se impone evacuar la consulta legislativa formulada en el sentido que el proyecto de adición del artículo 208 bis al Reglamento de la Asamblea Legislativa, no resulta inconstitucional, siempre y cuando se entienda que la moción de orden para establecer un procedimiento especial debe ser aprobada por las dos terceras partes del total de los miembros de la Asamblea Legislativa y que en la misma debe establecerse de forma explícita, clara y precisa las fases o etapas del procedimiento especial dispuesto” (ver sentencia número 2008-07687 de las 14 horas 50 minutos del 7 de mayo de 2008, número 2008-009579 de las 14 horas 11 minutos del 11 de junio de 2008, y número 2011-015749 de las 9 horas 32 minutos del 16 de noviembre de 2011, entre otras).

De lo anterior se deduce entonces que, el artículo 208 bis del Reglamento de la Asamblea Legislativa, constituye un mecanismo para tramitar proyectos de ley a través de los procedimientos especiales de formación de la ley que regula, constitucionalmente válido en el tanto y en el cuanto, la moción de orden que se proponga para decretar un procedimiento especial en un determinado proyecto de ley, sea aprobada por las dos terceras partes del total de los miembros de la Asamblea Legislativa y establezca de forma explícita, clara y precisa las fases o etapas del procedimiento especial que se decida aplicar. Y esto es así por cuanto, como se dijo supra, el ejercicio de la potestad de regulación interna es un asunto que incumbe de forma exclusiva al Parlamento, siendo que el tema único sobre el que versa el artículo 208 bis del Reglamento de la Asamblea Legislativa (hoy 234 bis) es precisamente de naturaleza regulatoria, sea la fijación de las pautas del procedimiento legislativo; y desde esta perspectiva entonces, la Sala reitera su criterio en el sentido de que el artículo 208 bis del Reglamento de la Asamblea Legislativa, es constitucional (ver en ese sentido la sentencia número 8408-99 de las 15 horas 24 minutos del 3 de noviembre de 1999 y la número 2005-00398 de las 12 horas 10 minutos del 21 de enero de 2005, entre otras). Con sustento en lo dicho, para la Sala, la aplicación del artículo 208 bis del Reglamento de la Asamblea Legislativa a los trámites parlamentarios, no resulta inconstitucional, siempre y cuando se entienda que la moción de orden para un procedimiento especial cumple con lo señalado supra respecto de la prevalencia del respeto a los principios vigentes en la democracia costarricense y a los derechos fundamentales de las personas (ver en ese sentido la sentencia número 2008-004569 de las 14 horas 30 minutos del 26 de marzo de 2008). Así las cosas, contrario al criterio de los accionantes, con sustento en lo dicho, la existencia de procedimientos especiales tutelados en el artículo 208 bis del Reglamento de la Asamblea Legislativa (ahora 234 bis) y su utilización en el trámite de algunos proyectos de ley que se adecuen a las pautas que enumera ese artículo, no resulta lesivo de los principios democrático, de participación política, de representación y de enmienda en la medida en que la decisión de utilizar un procedimiento especial, sea adoptada por las dos terceras partes de los diputados toda vez que la aprobación por esa mayoría calificada implica la protección de los derechos de las minorías como criterio rector para evitar los abusos o la dictadura de las mayorías pero, a la vez, sin perjuicio del respeto que las decisiones de la mayoría debe merecer, permitiéndose que las minorías ejerzan el derecho de hacerse oír y de participar con su voto en la toma de decisiones, particularmente en este tipo de actos que, por su trascendencia, hacen a la esencia y razón de ser del régimen representativo. En consecuencia, la Sala reitera su posición en el sentido de que el artículo 208 bis del Reglamento de la Asamblea Legislativa, ahora artículo 234 bis, es constitucional bajo los supuestos indicados.

X.- Redacta la Magistrada Hernández López. Sobre la utilización del artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa para el trámite en el expediente legislativo No. 19.922. Argumentan los accionantes que, al tenor de lo dispuesto en el artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa, ésta aplicó un trámite legislativo especial a un asunto al que, en su criterio, no le correspondía ser conocido vía ese procedimiento por cuanto, debido al tema, al contenido y a las consecuencias económico sociales del proyecto tramitado en el expediente No. 19.922, se requería que la aprobación del proyecto se diera por una mayoría calificada y con el cumplimiento reposado y mejor estudiado que implica el procedimiento normal de formación de la ley . Este tema en concreto, ya fue objeto de conocimiento de la Sala en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 en la que se conoció la Consulta Legislativa Facultativa interpuesta por varios diputados en relación con el proyecto tramitado en el expediente legislativo No. 19.922 y, en lo que interesa, este Tribunal dispuso, lo siguiente:

“(…) Ahora bien, de lo expuesto se denota que el procedimiento cuestionado fue creado con base en lo dispuesto por el numeral 208 bis del Reglamento de la Asamblea Legislativo, que establece la posibilidad de que mediante una moción de orden aprobada por dos tercios de los votos de la totalidad de miembros de la Asamblea Legislativa, se creen procedimientos especiales para proyectos de ley cuya aprobación requiera de mayoría absoluta, siempre y cuando se respeten el principio democrático y el derecho de enmienda, y no se trate de la aprobación de contratos administrativos, venta de activos del Estado, apertura de monopolios estatales o convenios internacionales. Así, con dicha norma, se busca garantizar que proyectos de ley de interés para el Parlamento puedan tramitarse sin mayores contratiempos, mediante el establecimiento de reglas que faciliten su desarrollo, siempre y cuando se respeten las garantías que el mismo numeral dispone. Aclarado lo anterior, debe entonces analizarse si el procedimiento especial aprobado por la Asamblea Legislativa en la sesión ordinaria número 37 de1 30 de junio de 2016, en aplicación de lo dispuesto por el artículo 208 bis del Reglamento de la Asamblea Legislativa, presenta o no los vicios señalados por los(as) consultantes (…) (sentencia 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018).

Para hacer este análisis, en dicha sentencia se transcribió casi la totalidad -sólo en lo que a esa consulta interesaba- del procedimiento vía 208 bis que aprobaron los diputados para el trámite que se le daría al proyecto del expediente legislativo No. 19.922. Para efectos de esta acción de inconstitucionalidad, se hace indispensable transcribirlo completo a fin de que sirva como contexto teórico para el análisis de los alegatos que se plantean por los accionantes. Según se desprende del expediente legislativo No. 19.922, folios 87 y 90, el 30 de junio de 2016 se presentó en el Plenario una Moción de Orden en la que se indicaba expresamente, lo siguiente:

“De varios diputados y diputadas:

Para que de conformidad con lo establecido en el artículo 208 bis del Reglamento de la Asamblea Legislativa, se le aplique el siguiente procedimiento especial al Expediente Legislativo Nº 19.922, “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa”.

Considerando

• 1)Que la moción que se presenta a consideración del Plenario Legislativo fundamentada en el artículo 208 bis del Reglamento de la Asamblea Legislativa, encuentra a su vez una base constitucional que es en definitiva la potestades del legislador para autorregular los procedimientos legislativos a la luz de lo dispuesto en el artículo 121, inciso 22), de la Constitución Política 2) Que la moción de orden dispuesta debe ser aprobada por votación no menor de las dos terceras partes del total de los miembros del Plenario Legislativo, lo que permitirá registrar la toma de decisión fundamental o trascendental, mediante una mayoría calificada o agravada que supone la obtención de un consenso legislativo en el que concurran, para su respeto, distintas orientaciones político-partidarias o ideológicas.
• 3)Que la moción referida dispone de manera detallada los procedimientos especiales, que debe cumplir en todo momento la iniciativa de ley, definiendo de forma explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial respetando siempre los principios conformes con el Derecho de la Constitución, como son el respeto al principio democrático y de participación política, siguiendo en este procedimiento la doctrina que ya la Sala Constitucional ha definido al establecer "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 inter poder constitucional, a tenor del Título IX de la Carta Fundamental, y en consecuencia ignorar o alterar esa potestad constituiría una violación grave a la organización democrática que rige al país [...] El objeto perseguido con la atribución de la competencia para autoorganizarse la Asamblea, es la de que por su medio sean regulados sus procedimientos de actuación, organización y funcionamiento y en consecuencia su organización interna es materia propia de esa competencia y por ende, no existe obstáculo para que, con ocasión de su ejercicio, sean establecidos otros tipos de mayorías razonables, en tanto se respeten los principios de igualdad y no discriminación" (sentencia número 0990-92, de las dieciséis horas treinta minutos del catorce de abril de mil novecientos noventa y dos, y en el mismo sentencia la número 1311-99).

I. TRAMITE EN COMISIÓN

1. CREACIÓN DE UNA COMISIÓN ESPECIAL:

a.-Créase una comisión especial que se será la encargada de dictaminar el Expediente N° 19.922, "Ley para racionalizar el gasto público" que estará integrada por los siguientes diputados y diputadas: 3 del Partido Liberación Nacional, 2 del Partido Acción Ciudadana, 1 del Partido Frente Amplio, 1 del Partido Unidad Social Cristiana, 1 del Partido Movimiento Libertario y 1 de las fracciones de uno o dos Diputados.

b.-Esta comisión tendrá un plazo de hasta cuatro meses calendario contado a partir de su instalación para rendir los respectivos dictámenes y este plazo solamente podrá ser ampliado por una única vez, por un plazo máximo de 7 días naturales, mediante moción de orden aprobada por las dos terceras partes de miembros de la Asamblea Legislativa.

2.- MOCIONES DE FONDO:

a.- Las mociones se conocerán según el orden ascendente del articulado, dándole tramité prioritario a las mociones de texto sustitutivo. Cuando existan varias mociones de fondo sobre el mismo artículo, se conocerán por orden de presentación.

b. El proponente de la moción de fondo podrá referirse sobre esta, por un plazo de cinco minutos. También podrán hacer uso de la palabra un Diputado (a) a favor y uno en contra por un plazo de cinco minutos cada uno para cada moción.

c.- Para la defensa de las mociones de revisión podrá hacer uso de la palabra solo el diputado proponente por cinco minutos. Las mociones conocidas en la última sesión de la Comisión de previo al vencimiento del plazo, deberán revisarse en esa misma sesión. Si se concediere la revisión, el asunto volverá al estado en que se encontraba antes de votarse la cuestión que dio motivo a ella.

d- Únicamente los Diputados miembros de la Comisión podrán presentar mociones de orden, excepto entratándose de mociones de apelación sobre la admisibilidad de las mociones de fondo por parte de la Presidencia de la Comisión. Ningún Diputado podrá presentar más de dos mociones de orden por sesión. Para referirse a estas mociones el Diputado proponente podrá hacer uso de la palabra hasta por un plazo de cinco minutos, no podrá cederse total o parcialmente el uso de la palabra. En lo que respecta a las mociones de orden tramitadas por la comisión, se podrá interponer una moción de revisión sobre la que nadie podrá hacer uso de la palabra.

e- Los Diputados podrán apelar las resoluciones de la Presidencia de la Comisión que se dispongan respecto a este expediente legislativo, inmediatamente después de emitidas, para lo cual contará con un plazo máximo de cinco minutos para su defensa. En caso de ser varios proponentes podrán justificar su apelación hasta por cinco minutos en forma conjunta. De presentarse varias mociones de apelación, sobre la misma resolución, los proponentes podrán justificarla hasta por un plazo de que no exceda cinco minutos en forma conjunta, el uso de la palabra se ejercerá según el orden de presentación de las mociones de apelación, siendo que su votación se recibirá en un solo acto. La presidencia podrá hacer uso de la palabra por un plazo de cinco minutos.

f.- Si vencido el plazo para dictaminar quedarán pendientes de conocimiento mociones de fondo, se tendrá por ampliado el plazo por dos días hábiles, plazo en el cual la Presidencia de la Comisión destinará las sesiones subsiguientes necesarias para el conocimiento de las mociones pendientes. Durante estas sesiones, las mociones se someterán a votación sin discusión alguna.

g- Las mociones de revisión que deban conocerse durante esta prórroga, tampoco serán debatidas. Las mociones conocidas durante la última sesión deberán revisarse en esa misma sesión, de manera tal que todo lo actuado quedará en firme en esa sesión. Finalizado el conocimiento de las mociones, la Presidencia otorgará la palabra para la discusión por el fondo, a los Diputados que así lo soliciten, por un plazo de hasta diez minutos. No se podrá ceder total o parcialmente el uso de la palabra. En todo caso, la Presidencia dará por discutido el proyecto a más tardar a las 23:30 horas de la sesión subsiguiente al inicio de la discusión por el fondo, y someterá a votación el proyecto. No obstante, la Presidencia podrá dar por discutido el proyecto en el momento en que ningún Diputado solicite el uso de la palabra.

h-Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto.

i- Los dictámenes, de mayoría y de minoría, serán presentados ante la Secretaría del Directorio dentro de los 2 días hábiles siguientes a la firmeza de la votación del proyecto en Comisión.

j.- Un día hábil después del cierre del plazo establecido en esta moción para la presentación de los dictámenes, el proyecto se incluirá en el Orden del Día del Plenario. Antes de iniciarse el conocimiento del asunto, la Presidencia de la Asamblea Legislativa deberá poner el o los dictámenes en conocimiento de los diputados y diputadas por el medio que considere más oportuno. Los informes de la comisión necesariamente incluirán el texto del proyecto de ley recomendado.

3. PRORROGA DEL PLAZO PARA DICTAMINAR:

a.- Los diputados de la comisión podrán acordar mediante una moción de orden solicitar por una única ocasión al Plenario de la Asamblea Legislativa la ampliación del plazo para dictaminar hasta por 7 días naturales.

b.- Esta solicitud deberá ser presentada por medio de moción de orden y se conocerá por el Plenario de la Asamblea Legislativa con prioridad sobre cualquier asunto al momento de su presentación y requerirá para su aprobación una votación afirmativa la mayoría absoluta de los diputados presentes.

4- SESIONES ORDEINARIAS Y EXTRAORDINARIAS:

a.- Las sesiones de esta comisión especial tendrán prioridad sobre cualquier otra comisión permanente, permanente especial o especial.

b.- Esta comisión sesionará todos los días lunes, martes, miércoles, jueves y viernes a partir de las 9:00 hasta las 12:00 horas. Los días viernes, sábados y domingos, la Comisión podrá sesionar a partir de las 9:30 y hasta las 23:30 horas; sin embargo, la comisión podrá modificar el horario aquí establecido por acuerdo tomado por mayoría absoluta del total de miembros de Comisión.

c.- La Presidencia de la Comisión podrá convocar todas las sesiones extraordinarias que considere necesarias con un mínimo de 24 horas de antelación.

d.- Se tendrán por desconvocadas las sesiones de esta comisión cuando el Plenario Legislativo acuerde sesionar extraordinariamente en el mismo horario.

e.- En lo no previsto aquí, se aplicarán las normas y procedimientos de las Comisiones Permanentes y Especiales en lo que resulte pertinente.

II.- Del Trámite en el Plenario 1.- Comisión Especial: Para todos los efectos, se tendrá por habilitada la Comisión Especial creada mediante esta moción de orden, hasta la tramitación final de este proyecto.

2.- Inicio del trámite en Plenario:

a.- El trámite en Plenario iniciará con una explicación general del texto, por parte de los dictaminadores. Para cada dictamen, los firmantes podrán hacer uso de la palabra hasta por un plazo que, individualmente o en conjunto, no exceda de diez minutos.

b.- Concluida la explicación de los Dictámenes iniciará la discusión del proyecto.

3.- Mociones de Fondo:

a.- Las mociones de fondo serán de recibo únicamente cuando sean presentadas al Directorio durante las dos primeras sesiones de discusión del proyecto. En la segunda de esas sesiones los Diputados podrán presentar mociones hasta la hora en que finalice ésta. La Presidencia las dará a conocer a los Diputados por el medio que considere más oportuno.

b.- La Presidencia de la Asamblea Legislativa determinará la admisibilidad de las mociones de fondo según las reglas dispuestas en esta moción. Igualmente, determinará su discusión conjunta, para lo cual las agrupará por diputado. Igualmente procederá a agrupar para su discusión en un solo acto las mociones idénticas o razonablemente equivalentes, pero de distintos Diputados, en cuyo caso serán agrupadas por su contenido, independientemente de quién las haya propuesto. Como regla general, cada Diputado podrá presentar una única moción de fondo por artículo, ya sea para modificarlo, adicionarlo o suprimirlo en su integridad. Para los artículos “complejos” se seguirán las reglas que se dispone de seguido. Si el artículo contiene varias modificaciones, abrogaciones o adiciones, podrá presentarse una única moción por cada modificación, abrogación o adición. En este caso, se entenderá que se trata de un artículo complejo en los términos señalados por la Sala Constitucional en la sentencia No. 3220-00 en la que estableció que la regla de la presentación única de una moción por modificación, abrogación y adición "puede implicar que respecto a un único artículo complejo, por referirse a varios temas o contener diversos incisos, pueda el diputado ejercer su derecho de enmienda respecto a cada uno de tales temas o incisos (...)" (Voto 3220-2000, considerando XII). De esta forma, en aplicación del principio in dubio pro libertate y pro homine, así como en beneficio del derecho de enmienda, se tiene que un artículo complejo es aquel que regula dentro de sí más de un mismo asunto (más de una finalidad o temática) o que bien posee enumeración o detalle de varios contenidos. En dicho supuesto, se incluyen los artículos que contienen varios incisos, listado de definiciones o varios párrafos en los cuales precisamente reforme, derogue o adicione otras leyes, materias o regule distintas disposiciones del mismo proyecto de ley.

Cada Diputado podrá presentar una única moción para introducir uno o varios capítulos nuevos, o un texto sustitutivo.

Cada Diputado podrá presentar una única moción por artículo del proyecto, para adicionar ya sea un artículo o un párrafo o un inciso nuevo.

c.- Cuando uno o varios Diputados presenten mociones idénticas o razonablemente equivalentes, serán admitidas por la Presidencia para que sean discutidas en un solo acto, aunque votadas individualmente.

d.- Cuando se presenten mociones similares de un mismo Diputado, estas deberán agruparse para ser discutidas en un solo acto y serán votadas individualmente.

e.- Cuando se presenten mociones que adicionan un nuevo instituto jurídico y otras que lo desarrollan, la Presidencia de la Asamblea Legislativa agrupará estas mociones, conociéndose en primer lugar la moción de fondo que incluya el instituto jurídico, de manera tal que si es desechada esa moción aquellas mociones posteriores tendientes a establecer las cualidades de dicho instituto, serán rechazadas por accesoriedad, en razón de su efectiva conexidad. Estas mociones deberán votarse de manera individual sin discusión alguna. Este rechazo se sustenta en el hecho de que la Comisión se pronunció contrariamente a la creación del instituto, siendo irrelevante discutir con posterioridad los caracteres del mismo. (Voto 3220-2000. Sala Constitucional de la Corte Suprema de Justicia).

f.- No procederán las mociones cuyo contenido sea inconexo con el proyecto. Se entenderá como conexo el contenido de las mociones que concuerden con la finalidad esencial del proyecto de ley, tal y como lo ha sostenido en forma reiterada la Sala Constitucional.

g.- Vencido el plazo para la presentación de mociones de fondo, la Presidencia de la Asamblea determinará la admisibilidad de las mociones de conformidad con las reglas aquí establecidas. En la misma resolución realizará la agrupación de las mociones que deberán discutirse en un mismo acto.

La Presidencia podrá suspender el conocimiento del expediente hasta la emisión de la resolución respectiva. Igualmente, la Presidencia dará a conocer a los diputados tales mociones por el medio que considere más oportuno.

h.- Una vez firme la resolución emitida por la Presidencia sobre la admisibilidad, las mociones de fondo pasarán a conocimiento de la Comisión Dictaminadora de forma inmediata, la cual deberá rendir un informe al Plenario dentro de los ocho días naturales siguientes a la recepción de las mociones.

i.- Para cumplir con el plazo establecido, la Comisión tendrá por habilitados los días inhábiles con el objeto de que conozca las referidas mociones.

j.- Las mociones de fondo serán conocidas en la Comisión siguiendo el orden ascendente del articulado.

k.- Las mociones de fondo presentadas se tendrán por dispensadas de lectura. A cada Diputado miembro de la Comisión deberá entregársele las copias de las mociones remitidas por el Plenario Legislativo.

l.- El o los proponentes de la moción podrán referirse a la moción por un plazo de 5 minutos, ya sea individualmente o en conjunto. También podrá hacer uso de la palabra un Diputado a favor y uno en contra por un plazo de 5 minutos cada uno.

m.- Las mociones idénticas que sean de varios Diputados y hayan sido agrupadas por la Presidencia de la Asamblea Legislativa se discutirán en un solo acto, de manera que todos los Diputados proponentes de las distintas mociones podrán hacer uso de la palabra dentro de un solo plazo de cinco minutos, ya sea que solamente uno de ellos se refiera a las mociones o que lo hagan varios. También podrá hacer uso de la palabra un Diputado a favor y uno en contra por un plazo de 5 minutos. Una vez discutidas las mociones, se votaran de manera individual cada una de ellas. En esta instancia no es apelable el acto de la Presidencia de la Comisión de poner a discusión las mociones previamente agrupadas por la Presidencia de la Asamblea Legislativa. Igual procedimiento se aplicará para las mociones agrupadas a un solo Diputado.

n.- Las mociones de revisión solamente podrán ser presentadas por los Diputados miembros de la Comisión Dictaminadora. Para la defensa de la revisión podrá hacer uso de la palabra el o los Diputados proponentes por un plazo que de manera individual o conjuntamente no supere los 2 minutos.

o.- Vencido el plazo para rendir el informe, si quedaran mociones pendientes de conocimiento, se tendrá por ampliado automáticamente el plazo para rendir el informe, las mociones pendientes se tendrán por discutidas y procederá la Comisión a votar una por una. Las mociones de revisión que deban conocerse durante la prórroga tampoco serán discutidas. Las mociones conocidas durante la última sesión deberán revisarse en esa misma sesión, de manera tal que todo lo actuado quedará en firme en esa sesión.

p.- Únicamente los Diputados miembros de la Comisión podrán presentar mociones de orden. Ningún Diputado podrá presentar más de dos mociones de orden por sesión. Para referirse a estas mociones el o los Diputados proponentes podrán hacer uso de la palabra hasta por un plazo que de manera individual o conjunta no supere los dos minutos.

q.- Los Diputados podrán apelar las resoluciones de la Presidencia de la Comisión, que se emitan con efecto a este expediente, inmediatamente después de emitidas, para lo cual contará con un plazo de cinco minutos. En todo caso, de existir varios apelantes ante una sola resolución ejercerán el uso de la palabra hasta por treinta minutos en conjunto. Cada Diputado tendrá dentro de ese plazo general el derecho a hacer uso de la palabra hasta por cinco minutos cada uno. El uso de la palabra se ejercerá según el orden de presentación de las mociones de apelación, siendo que su votación se recibirá en un solo acto.

4.- Mociones de Reiteración:

a.- Las mociones de reiteración serán de recibo en dos sesiones que se contabilizarán desde el momento en el cual la Presidencia comunique al Plenario que se recibió el Informe de la Comisión Dictaminadora sobre las mociones de fondo. Estas mociones las podrán presentar los Diputados hasta la hora en que finalice la segunda sesión. Con el fin de recibir mociones, y de tratarse esa segunda sesión de una sesión ordinaria, la Presidencia de la Asamblea Legislativa podrá extender la finalización de la misma después de la hora citada. La Presidencia dará a conocer las mociones admitidas a los Diputados por el medio que considere más oportuno.

La Presidencia de la Asamblea Legislativa determinará la admisibilidad de las mociones de reiteración según las reglas dispuestas en esta moción. Igualmente, determinará su discusión conjunta, para lo cual las agrupará por diputado, con excepción de que sean de varios legisladores y resulten idénticas o razonablemente equivalentes en cuyo caso las agrupará por su contenido independientemente de su proponente. La Presidencia las dará a conocer a los Diputados por el medio que considere más oportuno.

La Presidencia de la Asamblea Legislativa determinará la admisibilidad de las mociones de reiteración según las reglas dispuestas en esta moción. Igualmente, determinará su discusión conjunta, para lo cual las agrupará por diputado, con excepción de que sean de varios legisladores y resulten idénticas o razonablemente equivalentes en cuyo caso las agrupará por su contenido independientemente de su proponente. La Presidencia las dará a conocer a los Diputados por el medio que considere más oportuno. El Diputado podrá presentar una única moción de fondo por artículo, ya sea para modificarlo, adicionarlo o suprimirlo en su integralidad aún tratándose de artículos "complejos" en el sentido que se dispone de seguido. Si el artículo contiene varias modificaciones, abrogaciones o adiciones, podrá presentarse una única moción por cada modificación, abrogación o adición. En este caso, se entenderá que se trata de un artículo complejo en los términos señalados por la Sala Constitucional en la sentencia No. 3220-00 en la que estableció que la regla de la presentación única de una moción por modificación, abrogación y adición "puede implicar que respecto a un único artículo complejo, por referirse a varios temas o contener diversos incisos, pueda el diputado ejercer su derecho de enmienda respecto a cada uno de tales temas o incisos (...)" (Voto 3220-2000, considerando XII).

Cada Diputado podrá presentar una única moción de reiteración cuya moción de fondo pretenda introducir uno o varios capítulos nuevos, o un texto sustitutivo.

Cada Diputado podrá presentar una única moción de reiteración por artículo del proyecto, cuya moción de fondo pretenda adicionar ya sea un artículo o un párrafo o un inciso nuevo.

b.- Cuando uno o varios Diputados presenten mociones idénticas o razonablemente equivalentes, serán admitidas por la Presidencia para que sean discutidas en un solo acto, aunque votadas individualmente.

c.- Cuando se presenten mociones similares, estas deberán agruparse para ser discutidas en un solo acto y serán votadas individualmente.

d.- Cuando se presenten mociones que adicionan un nuevo instituto jurídico y otras que lo desarrollan, la Presidencia de la Asamblea Legislativa agrupará estas mociones, conociéndose en primer lugar la moción de fondo que incluya el instituto jurídico, de manera tal que si es desechada esa moción aquellas mociones posteriores tendientes a establecer las cualidades de dicho instituto, serán rechazadas por accesoriedad, en razón de su efectiva conexidad. Rechazo que se sustenta en el hecho de que el Plenario se pronunció contrariamente a la creación del instituto, siendo irrelevante discutir con posterioridad los caracteres del mismo. (Voto 3220-2000. Sala Constitucional de la Corte Suprema de Justicia).

e.- No procederá la reiteración de mociones cuyo contenido sea inconexo con el proyecto. Se entenderá como conexo el contenido de las mociones que concuerden con la finalidad esencial del proyecto de ley o dictamen al cual se le presentan, tal y como lo ha sostenido en forma reiterada la Sala Constitucional.

f.- Vencido el plazo para la presentación de mociones de reiteración, la Presidencia determinará la admisibilidad de las mociones de conformidad con las reglas aquí establecidas. En la misma resolución realizará la agrupación de las mociones que deberán conocerse en un mismo acto. Para lo cual, podrá suspender el conocimiento del expediente hasta la emisión de la resolución respectiva. Igualmente, la Presidencia dará a conocer a los Diputados tales mociones por el medio que considere más oportuno.

g.- Las mociones de reiteración serán conocidas en el Plenario siguiendo el orden ascendente del articulado. En el caso que se reiteren mociones rechazadas en Comisión y que no fueron discutidas, tendrán prioridad al ser conocidas por el Plenario sobre las mociones que sí recibieron discusión en Comisión.

h.- La moción de reiteración es de orden y sus proponentes tendrán un plazo que de manera individual o conjunta no supere los cinco minutos. De ser aprobada, el Plenario se tendrá por convertido en Comisión General para conocer la moción de fondo adjunta, para la cual podrán hacer uso de la palabra todos los Diputados que así lo soliciten hasta por un plazo de cinco minutos cada uno.

i.- Las mociones de reiteración y revisión se tendrán por dispensadas de lectura. En todo caso, la Presidencia de la Asamblea Legislativa instruirá a la Secretaría del Directorio para que ofrezca a los legisladores dentro de la red interna, con la inmediatez del caso, un compendio de las mociones de reiteración admitidas y el orden en el cual serán conocidas.

5.- Otros trámites y mociones:

a.- Solamente podrá presentarse una moción que pretenda devolver el proyecto a Comisión por sesión. Únicamente hará uso de la palabra el o los proponentes por un plazo que de manera individual o conjunto no exceda los cinco minutos.

b.- Solamente se tramitarán cinco mociones de orden distintas a las de reiteración por sesión. Para defender estas mociones el o los proponentes tendrán el uso de la palabra por un plazo que de manera individual o conjunta no exceda los cinco minutos. Tanto en el procedimiento seguido en el Plenario así como en Comisión, no serán de recibo mociones tendientes a alterar o modificar el orden del día.

c.- El diputado tiene derecho a pedir revisión de las declaraciones, acuerdos y resoluciones que tome la Asamblea. La revisión cabe por una sola vez y debe solicitarse a más tardar inmediatamente antes de la aprobación del acta respectiva en la sesión siguiente. Sin embargo, cuando se tratare de decretos y acuerdos aprobados definitivamente al finalizar un período de sesiones ordinarias o extraordinarias, la revisión debe presentarse en la misma sesión en que se hizo tal aprobación. Si la Asamblea concediere la revisión, el asunto volverá al estado en que se encontraba antes de votarse la cuestión que dio motivo a ella.

Las mociones de revisión se conocerán en el lugar que ocupaba el asunto cuya revisión se pide, la Presidencia determinará el momento oportuno para el conocimiento de la revisión dentro del capítulo respectivo.

Cuando la Asamblea conozca la revisión de un asunto de cualquier naturaleza, el diputado que la hubiere pedido podrá hacer uso de la palabra para referirse a ella por un plazo improrrogable de dos minutos, salvo en el caso de la revisión de mociones de reiteración las cuales se conocerán sin discusión alguna.

d.- Los Diputados podrán apelar las resoluciones de la Presidencia de la Asamblea Legislativa, que se emitan con efecto a este expediente, inmediatamente después de emitidas, para lo cual contará con un plazo de cinco minutos. En todo caso, de existir varios apelantes ante una sola resolución ejercerán el uso de la palabra hasta por diez minutos en conjunto. Cada Diputado tendrá dentro de ese plazo general el derecho a hacer uso de la palabra hasta por cinco minutos cada uno. El uso de la palabra se ejercerá según el orden de presentación de las mociones de apelación, siendo que su votación se recibirá en un solo acto.

e.- En todo caso, tanto la Presidencia de la Asamblea Legislativa, así como de la Comisión Dictaminadora, podrán continuar con el conocimiento del expediente cuando por imposibilidad material la secretaría técnica no tenga listas las actas, quedando pendiente su aprobación para el momento en el cual se encuentren disponibles.

6.- Discusión y Votación del Proyecto a.- Finalizado el conocimiento de mociones de reiteración continuará la discusión por el fondo, para lo cual cada Diputado podrá hacer uso de la palabra por un plazo de 15 minutos en primer debate y de 10 minutos en segundo debate.

b.- Una vez recibido el informe de mociones de fondo tramitado por la Comisión Dictaminadora, el Plenario Legislativo dispondrá de veinte sesiones para conocer las mociones de reiteración y discutir por el fondo el proyecto de ley.

c.- Si vencidas las sesiones quedaran pendientes de conocimiento mociones de reiteración o mociones de fondo adjuntas a reiteraciones aprobadas, la Presidencia destinará las sesiones subsiguientes necesarias para el conocimiento de las mociones pendientes. Durante estas sesiones, las mociones se someterán a vocación sin discusión alguna. Las mociones de revisión que deban conocerse durante esta prórroga tampoco serán discutidas. Finalizado el conocimiento de las mociones, la Presidencia otorgará la palabra para la discusión por el fondo a los Diputados que así lo soliciten por un plazo de hasta diez minutos tanto en primero como en segundo debate. En todo caso, la Presidencia dará por discutido el proyecto a más tardar a las 23:30 horas de la sesión subsiguiente al inicio de la discusión por el fondo y someterá a votación el proyecto. No obstante la Presidencia podrá dar por discutido el proyecto en el momento en que ningún Diputado solicite el uso de la palabra.

7.- Sesiones Extraordinarias del Plenario.

El Plenario Legislativo sesionará extraordinariamente los días lunes, martes y miércoles a partir de las 9:00 horas y hasta las 12:30 horas para conocer este proyecto.

8.- Sesiones Extraordinarias y Ordinarias de Comisión La Comisión Dictaminadora sesionará de manera extraordinaria únicamente para el conocimiento de este proyecto los días lunes, martes y jueves 5 minutos después de finalizada la sesión de Plenario y los días miércoles 5 minutos después de finalizadas las sesiones de las Comisiones con Potestad Legislativa Plena. Además, sesionará todos los días a partir de las 9:30 y hasta las 12:30 medio día. Los días viernes, sábado y domingo, la Comisión sesionará a partir de las 9:30 horas y hasta las 23:30 horas, pudiendo la Comisión modificar el horario establecido de las sesiones por acuerdo tomado por mayoría absoluta. Se tendrá por desconvocadas las sesiones de esta Comisión cuando el Plenario Legislativo acuerde sesionar extraordinariamente en la mañana. En todo caso, podrá continuar sesionando treinta minutos de que finalice la sesión del Plenario, sea ordinaria o extraordinaria” (ver folio 52 del expediente legislativo No. 19.922).

En el expediente legislativo No. 19.922, se puede observar que la anterior moción de orden fue conocida en la sesión ordinaria No. 37 del Plenario de la Asamblea Legislativa del 30 de junio de 2016, siendo aprobada por 39 diputados a favor y 10 en contra, indicándose textualmente a la hora de votar, lo siguiente:

“Quienes estén de acuerdo con que se le dé trámite de artículo 208 bis según la moción presentada al expediente 19.922 para las pensiones del Poder Judicial en los términos explicados y que constan en la moción lo manifestarán poniéndose de pie. Cuarenta y nueve señoras y señores diputados presentes, para su aprobación se requiere de treinta y ocho votos. Treinta y nueve diputados a favor, diez en contra, aprobada” (folio 90 del expediente legislativo No. 19.922).

En la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, la Sala analizó los cuestionamientos de constitucionalidad que, en aquel momento, plantearon los diputados consultantes y que estaban referidos, a lo siguiente:

• a)que durante el trámite del proyecto en Comisión, sólo los (as) diputados(as) que formaban parte de ese grupo, podían plantear mociones de orden; b) que el procedimiento aprobado establecía que los (as) legisladores (as) únicamente podían presentar una moción de fondo por cada artículo del proyecto, a efectos de adicionar, o suprimir un párrafo o inciso nuevo; c) que las mociones de fondo serían de recibo únicamente cuando se presentaran al Directorio Legislativo durante las 2 primeras sesiones de discusión del proyecto, contando cada diputado (a) únicamente con 5 minutos para defenderlas. Manifestaron las personas consultantes -en ese momento en el que plantearon la consulta- que los efectos de las situaciones anteriormente citadas, implicaban una lesión a los principios de igualdad, razonabilidad y proporcionalidad, participación democrática, así como al derecho de enmienda. Al analizar la Sala esos planteamientos en la referida sentencia, se indicó lo siguiente:

“De lo expuesto se desprende que en el expediente legislativo número 19.922 se estableció un procedimiento amplio para la presentación de mociones, el cual, si bien efectivamente dispone algunas particularidades con respecto al número de mociones, tiempo de defensa y momento en que éstas puedan plantearse, lo cierto es que ello no conlleva necesariamente a una lesión de los principios y derechos invocados por los(as) consultantes. En ese sentido, el hecho de que se disponga que durante el trámite en Comisión únicamente los(as) legisladores(as) que forman parte de ésta puedan presentar mociones de orden, no implica una violación a los principios de igualdad y democrático, así como al derecho de enmienda, pues son los(as) diputados(as) que forman parte de la Comisión quienes saben cuáles son los temas que deben ser planteados por medio de este tipo de mociones, toda vez que son ellos quienes han estado presentes durante esta etapa del trámite legislativo y, por ende, tienen mayor conocimiento sobre los aspectos de procedimientos de la Comisión, como es por ejemplo, el otorgar audiencia a determinadas organizaciones; amén que los(as) diputados(as) miembros(as) no están en la misma condición que los(as) no miembros(as), de ahí que la invocación al principio de igualdad es improcedente, por la elemental razón de que no se encuentran en la misma situación o condición. Nótese que el Reglamento de la Asamblea Legislativa impide que diputados(as) no miembros(as) de las Comisiones con Potestad Legislativa Plena, Permanentes y Especiales puedan presentar mociones de revisión (véanse los artículos 3, 4, 5 incisos 5) y 6), 6 y 7 del Reglamento de la Asamblea Legislativa). De igual forma, el que se limite el número de mociones que pueden ser presentadas, el tiempo con que se cuenta para defenderla, así como los momentos en que pueden ser planteadas, no resulta inconstitucional, en el tanto ello responde a las reglas fijadas para el expediente legislativo particular, con base en el 208 bis, y que tienen como fin agilizar su desarrollo y evitar dilaciones innecesarias en la tramitación de un procedimiento que versa sobre un tema de relevancia. Por otra parte, cabe destacar que del estudio del expediente legislativo se desprende, con claridad, que tanto en la Comisión como en el Plenario, los(as) diputados(as) tuvieron la oportunidad de discutir ampliamente distintos aspectos relativos al expediente legislativo y que resultaban de su interés, pudiendo incluso traer a representantes de diversas instituciones como la Escuela de Ciencias Económicas de la Universidad de Costa Rica, la Superintendencia de Pensiones, el Poder Judicial, entre otros, mediante mociones de orden. De igual forma, se desprende que durante las sesiones del Plenario Legislativo del 4 y 5 de septiembre de 2017 se presentaron mociones de fondo cuya admisibilidad fue resuelta por la Presidencia del Directorio mediante resolución leída en la sesión número 67 del 19 de septiembre de 2017 y que, posteriormente, fueron discutidas en las sesiones del 20 y 28 de septiembre de 2017 del Plenario. Finalmente, se tienen por demostrado que mediante resolución de la Presidencia del Directorio, adoptada en la sesión número 78 del 11 de octubre de 2017, se resolvió sobre la admisibilidad de las mociones de reiteración planteadas por los(as) diputados(as), las cuales fueron analizadas por el Plenario en las sesiones del 17, 18, 24, 25 y 30 de octubre de 2017. Ahora bien, considera la Sala que de lo expuesto se desprende, con claridad, que los(as) diputados(as) tuvieron la oportunidad de ejercer el derecho de enmienda del proyecto consultado, así como de plantear las mociones de orden, fondo y reiteración que estimaran pertinentes, de ahí que se estime que no ha existido lesión alguna a los principios y derechos mencionados por los(as) consultantes”.

Así las cosas, en relación con los temas enunciados supra, que ya fueron analizados en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 y que ahora se reiteran en esta acción, deberán estarse los accionantes a lo que ahí se indicó toda vez que la Sala considera que no existe ningún motivo o argumento nuevo en relación con esos puntos en concreto, que implicara una modificación del criterio ya externado y, por tanto, en consecuencia, en cuanto a esos extremos puntuales, el procedimiento previsto en el artículo 208 bis del Reglamento de la Asamblea Legislativa (ahora 234 bis), se ajusta al Derecho de la Constitución. Aunado a lo anterior, debe recordarse que la Sala ha sido enfática en que no debe interferir con el derecho de autorregulación del Parlamento, salvo que se vulnere el Derecho de la Constitución, es decir, el conjunto de valores, principios y normas constitucionales. De esta forma, las potestades de la Sala en esta materia son ejercidas bajo la perspectiva de un árbitro, que modera y contiene excesos pero no interfiere con una potestad constitucional intrínseca otorgada a otro órgano constitucional, de modo que sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima su intervención (ver sentencias de esta Sala números 2019-002284 de las 9 horas 15 minutos del 8 de febrero de 2019, 2007-018139 de las 15 horas 30 minutos del 18 de diciembre de 2007 y 2000-03220 de las 10 horas 30 minutos del 18 de abril de 2000, entre otras).

XI.- Redacta el Magistrado Castillo Víquez. Sobre otros alegatos relativos a la aplicación del 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa al expediente legislativo 19.922. Ahora bien, obsérvese que las acciones de inconstitucionalidad bajo estudio, van más allá de lo que se planteó por los Congresistas en la Consulta Facultativa que dio origen a la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018. En ese sentido, los accionantes señalan que la moción para tramitar el expediente legislativo 19.922 por el procedimiento abreviado del artículo 208 bis (ahora 234 bis), se introdujo el 30 de junio de 2016 en Sesión Ordinaria No. 37 del Plenario Legislativo y afirman que, a pesar de que se pretendía la autorización para aplicar un procedimiento que es excepcional y riguroso, al hacer la propuesta no se sometieron al trámite establecido para plantear este tipo de proposiciones; procedimiento que, también, es extraordinario y formal. En ese sentido, es criterio de los accionantes, que hay lesión al procedimiento parlamentario por lo siguiente:

• a)la propuesta se introdujo como si se tratara de una “moción de orden” cuando ello no es lo procedente para este tipo de propuestas; b) la propuesta se incluyó en el espacio de los Segundos Debates del Plenario, a pesar de que se trata de un tema de “Interna Corporis” por lo que se debió ver en la primera parte de la sesión del Plenario que es la que se refiere a asuntos de régimen interno; c) se actuó en contra de los artículos 121 inciso 22) y 124 de la Constitución Política y 35, 153, 205 (ahora 231), 207 (ahora 233) , 208 (ahora 234) y 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa.

Al haberlo alegado los accionantes, la Sala debe proceder a hacer un análisis de estos argumentos, y para ello, se hace indispensable transcribir los artículos del Reglamento de la Asamblea Legislativa mencionados por la parte accionante a fin de poder comprender lo que se plantea:

“Artículo 35.- Orden de la sesión y Agenda Parlamentaria El orden de la sesión plenaria es el siguiente:

1. Discusión y aprobación del acta.

2. Suspensión de derechos y garantías, de conformidad con el inciso 7) del artículo 121 de la Constitución Política.

3. Asuntos del Régimen Interno.

4. Asuntos de control, fiscalización y demás contenido político, los cuales se tramitarán en el siguiente orden:

• a)Informe de correspondencia.
• b)Nombramientos, renuncias y juramentaciones referidos en los incisos 3), 8) y 12) del artículo 121 de la Constitución Política.
• c)Permisos y autorizaciones establecidos en los incisos 5) y 6) del artículo 121 de la Constitución Política.
• d)Asuntos previstos en los incisos 9), 10) y 24) del artículo 121 de la Constitución Política y los nombramientos e informes de las comisiones investigadoras y especiales del inciso 23) del artículo 121 de la Constitución Política.
• e)Apelaciones referidas en el artículo 28 de este Reglamento.
• f)Recursos de insistencia referidos en el artículo 203 de este Reglamento.
• g)Asuntos previstos en los incisos 16) y 21) del artículo 121 de la Constitución Política.
• h)Proposiciones de los diputados.
• i)Otros asuntos no comprendidos en los subincisos anteriores, a juicio del Presidente.

5. Discusión de proyectos de ley, los cuales se conocerán en el siguiente orden:

• a)Terceros debates, referidos en el inciso 7 del artículo 195 y en el artículo 168 de la Constitución Política.
• b)Segundos debates.
• c)Primeros debates.

Si transcurridos sesenta minutos de conocimiento de los asuntos indicados en los incisos 1, 2, 3 y 4, sin agotarlos, se suspenderá su discusión para conocer de inmediato los proyectos de ley conforme al inciso 5. Durante estos primeros sesenta minutos no se conocerán proyectos de ley.

Los asuntos que, por disposición constitucional o reglamentaria, deban ser conocidos en un plazo determinado, se incluirán en el punto del orden de la sesión correspondiente, en un lugar de preferencia, hasta su tramitación final.

La Agenda Parlamentaria estará constituida por todos los asuntos que al Plenario le compete conocer y decidir. Para efecto de su ordenamiento, estos se consignarán en el capítulo que corresponda del orden de la sesión en la siguiente forma:

a. Dictámenes unánimes afirmativos.

b. Dictámenes afirmativos de mayoría.

c. Los dictámenes respectivos se ordenarán según el orden cronológico de su presentación ante el Departamento de la Secretaría del Directorio.

(Así reformado el inciso anterior mediante sesión N° 145 del 21 de febrero del 2012) d. Los proyectos dispensados de todos los trámites se tramitarán en la forma prevista para los dictámenes unánimes afirmativos, y se tendrán como presentados en la fecha en que se aprobó la moción de dispensa.

(Así reformado mediante Acuerdo N° 6040 de 10 de diciembre del 2001)”.

“Artículo 153.- Moción de Orden En cualquier estado del debate podrán presentarse mociones de orden, salvo que este Reglamento lo impida expresamente. Estas mociones se conocerán inmediatamente después de presentadas y aceptadas como tales por el Presidente. Para explicar el contenido de la moción el o los proponentes tendrán un plazo que, individualmente o en conjunto, no exceda de cinco minutos.

(Modificado mediante sesión N° 5020, del 8 de noviembre de 1999)” “Artículo 205.- Trámite de acuerdos parlamentarios Los proyectos, para la emisión de acuerdos concernientes al régimen interior de la Asamblea, así como los proyectos de acuerdo que deban tomarse, en uso de las atribuciones enumeradas en los incisos 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23) y 24) del artículo 121 de la Constitución Política, deberán presentarse por escrito, firmados por el diputado o los diputados que los inicien o acojan; o por el Ministro del ramo, cuando el proyecto sea de iniciativa del Poder Ejecutivo. Asimismo, deberán ser leídos por la Secretaría. La Asamblea los conocerá y resolverá, sin ajustarse a los trámites previstos en el artículo anterior.

Sin embargo, la Presidencia ordenará que el proyecto pase a estudio de una Comisión especialmente nombrada para el caso, señalándose un término prudencial no menor de tres días hábiles para informar, cuando el asunto sea complicado o cuando así lo disponga este Reglamento.

(Corrida su numeración mediante sesión N° 31 del 4 de marzo del 2019, que lo traspasó del antiguo artículo 205 al 231)” “Artículo 208.- Inderogabilidad singular Salvo en los casos en que el propio Reglamento lo establezca expresamente, no serán admisibles las mociones tendientes a su inaplicación a casos concretos.

(Corrida su numeración mediante sesión N° 31 del 4 de marzo del 2019 , que lo traspasó del antiguo artículo 208 al 234)” “Artículo 208 bis.-Procedimientos Especiales Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda.

(Así adicionado mediante acuerdo No. 6231-04-05 de 8 de marzo de 2005).

(Corrida su numeración mediante sesión N° 31 del 4 de marzo del 2019 , que lo traspasó del antiguo artículo 208 bis al 234 bis)”.

Se transcribe el artículo 207 a continuación y no en el orden usual, por las razones que se dirán de seguido:

“Artículo 207.- Reformas al Reglamento Toda reforma total o parcial a este Reglamento, así como la interpretación de cualquiera de sus disposiciones requiere, para ser aprobada, los dos tercios de votos de la totalidad de los miembros de la Asamblea.

Las reformas deberán realizarse mediante el procedimiento establecido en el artículo 124 de la Constitución Política.

(Corrida su numeración mediante sesión N° 31 del 4 de marzo del 2019 , que lo traspasó del antiguo artículo 207 al 233)” Según se desprende del Sistema Nacional de Legislación Vigente (SINALEVI) y es así afirmado por los accionantes, el anterior artículo 207 del Reglamento de la Asamblea Legislativa, que ahora corresponde al numeral 233, fue interpretado mediante acuerdo parlamentario N° 4084, adoptado en la sesión N° 24 del 10 de junio de 1999 y publicado en La Gaceta N° 129 del 5 de julio de 1999; según el cual:

“Artículo único.—La tramitación de los proyectos de reforma total o parcial del Reglamento de la Asamblea Legislativa se hará de conformidad con las siguientes disposiciones:

1. El trámite de los proyectos de reforma total o parcial del Reglamento de la Asamblea Legislativa iniciará con la lectura del proyecto. Posteriormente, se concederá un máximo de quince minutos a los proponentes para que brinden una explicación general del texto.

2. Finalizadas las explicaciones, se procederá al conocimiento de las mociones de fondo. Estas mociones serán conocidas directamente por el Plenario.

3. Las mociones se discutirán en el orden de su presentación. No obstante, el Presidente podrá establecer el orden de discusión de las mociones de conformidad con lo dispuesto en los artículos 124 y 163 del Reglamento.

4. Cada diputado tendrá derecho a hacer uso de la palabra quince minutos por cada moción.

5. Finalizado el conocimiento de las mociones de fondo, cada diputado podrá hacer uso de la palabra por una hora para referirse al fondo del proyecto.

6. Cuando la complejidad del proyecto o el número de mociones presentadas lo amerite, el Presidente podrá ordenar, en cualquier estado del debate, que el proyecto pase a conocimiento de una Comisión, especialmente nombrada para el caso. En este caso:

• a)Las mociones que se presenten se discutirán en el orden de su presentación. El Presidente de la Comisión tendrá las facultades a que se refiere el numeral 3.
• b)La Comisión deberá informar al Plenario dentro del plazo prudencial que le fije el Presidente de la Asamblea, el cual no podrá ser inferior a tres días. La Comisión podrá solicitar al Presidente de la Asamblea, por una sola vez, una prórroga del plazo. Si el Presidente negare la prórroga, cabrá apelación ante el Plenario el cual resolverá en definitiva lo establecido en el artículo 156 del Reglamento.
• c)Si vencido el plazo para rendir el informe, o su prórroga, aún quedaren mociones pendientes de conocer, estas se someterán a votación, sin discusión alguna.

7. Una vez rendido el informe sólo se admitirán nuevas mociones de fondo cuando se presenten al Directorio durante los seis días hábiles siguientes a la fecha en que fue rendido el informe de la Comisión.

8. Las mociones de fondo pasarán a conocimiento de la Comisión que informó, la cual deberá rendir un informe al Plenario dentro de los tres días hábiles siguientes al vencimiento del plazo a que se refiere el numeral anterior. Si vencido el plazo para rendir el informe aún quedaren mociones pendientes de conocer, éstas se someterán a votación, sin discusión alguna. Se tendrán incorporadas al texto las mociones que determine la Comisión.

9. Las mociones de fondo rechazadas por la Comisión podrán ser reiteradas por sus proponentes ante el Plenario, si éste se convierte en comisión general para conocerlas. La moción para convertir el Plenario en comisión general se pondrá a votación, previa explicación del asunto que hará el proponente en un máximo de diez minutos. 10. Una vez aprobado el proyecto, se publicará en el Diario Oficial”.

Este acuerdo fue objeto de impugnación en esta Sala mediante la acción de inconstitucionalidad número 04-001310-0007-CO bajo el argumento de que su texto no había sido debidamente presentado como proyecto de acuerdo, ni publicado, o dispensado de trámites (artículo 177 del Reglamento), por lo que los accionantes consideraron que, para este caso en concreto, hubo desaplicación de las disposiciones de procedimiento legislativo (artículos 205 del Reglamento y 124 de la Constitución Política), lo cual está expresamente vedado en el numeral 208 reglamentario. La Sala al analizar el asunto, dictó la sentencia número 2004-014986 de las 12 horas 17 minutos del 24 de diciembre de 2004 que declaró sin lugar la citada acción de inconstitucionalidad, indicándose, en lo que interesa, lo siguiente:

“(…) Queda entonces claro que la actuación de la Asamblea Legislativa se encuentra ajustada a derecho, en virtud de lo dispuesto en las normas constitucionales y en el propio artículo 207 del Reglamento de la Asamblea Legislativa, que permite, por medio del acuerdo legislativo, interpretar las normas del Estatuto Parlamentario. De modo que en la aprobación de acuerdos como el impugnado, se está ejerciendo la potestad autonormativa en una de sus subvertientes: la interpretación de normas internas, que deriva directamente de lo dispuesto en el artículo 121 inciso 22) constitucional, en relación con los 9 y 124 de mismo cuerpo normativo, en los que se consagra la atribución exclusiva de la Asamblea Legislativa para darse el reglamento para su régimen interno mediante votación calificada. No se trata de la potestad de legislar, establecida en el artículo 121 inciso 1) de la Constitución Política, en uno de sus supuestos: interpretación auténtica de las leyes. En virtud de lo anterior, procede desestimar el primer reparo constitucional hecho por los accionantes, respecto de la violación del artículo 121 inciso 1) de la Carta Fundamental (…) En el caso concreto, el acuerdo número 4084 no es inconstitucional, toda vez que fue adoptado por la Asamblea Legislativa conforme a la potestad de autoregularse que tiene en virtud de lo dispuesto en el artículo 121 inciso 22) de la Constitución Política, y porque –como se verá a continuación-, el procedimiento establecido para la reforma total o parcial, o interpretación del Reglamento de la Asamblea Legislativa se hace acorde con las normas constitucionales y reglamentarias pertinentes. Asimismo, como lo explicó el Presidente de la Asamblea Legislativa, el acuerdo impugnado fue adoptado conforme los requerimientos de la Constitución Política y la propia reglamentación interna, es decir, tras un amplio debate y amplia participación de los legisladores, que propusieron una serie de mociones de fondo que se tradujeron en reformas al proyecto, lo que culminó con la aprobación por unanimidad de los diputados presentes en la sesión del diez de junio de mil novecientos noventa y nueve, sea con el voto de cuarenta y ocho diputados, sobrepasando la mayoría requerida –visible a folios 52 a 53 del expediente-. En virtud de lo anterior, debe rechazarse el otro reclamo de inconstitucionalidad alegado por los accionantes, en lo que respecta al irrespeto de trámites legislativos esenciales, ya que desde su propuesta por el Directorio Legislativo, el proceso de su discusión y aprobación final por unanimidad, se realizó en resguardo del principio democrático; se trata de un acuerdo vinculado a la reglamentación interna de la Asamblea Legislativa que depende exclusivamente de la voluntad de los legisladores. Asimismo, debe agregarse que se cumplieron a cabalidad los procedimientos constitucionales y reglamentarios para su aprobación (…). Es así como no existe norma constitucional ni reglamentaria que señale el trámite que debe seguirse para conocer de los proyectos de reforma o interpretación del Reglamento de la Asamblea Legislativa, por lo que se han dado algunas prácticas parlamentarias diversas, que han permitido la presentación y discusión de un número ilimitado de mociones de fondo directamente en el Plenario Legislativo, sin fijarse un plazo determinado para ello, y se han aplicado también diversas reglas del uso de la palabra. En este sentido lleva razón el Presidente de la Asamblea Legislativa al señalar que si el legislador no prevé o elimina regulaciones o prácticas legislativas oscuras, incurre en una evasión o incumplimiento de sus deberes constitucionalmente asignados; por ello, en busca de una solución a esta situación el Plenario Legislativo –no su Directorio- adoptó la interpretación impugnada por unanimidad (tras un amplio debate en el que todos tuvieron la oportunidad de participar), que pretendió definir el procedimiento a seguir para las reformas e interpretaciones legislativas, a fin de asegurar la tramitación y presentación de estos proyectos. Por ello, es congruente con el ordenamiento jurídico parlamentario que en un acuerdo interpretativo como el impugnado se llenen las lagunas que presentan los procedimientos legislativos, no constituyendo esta actuación contraria a los procedimientos constitucionales o reglamentarios, todo lo contrario, por vía interpretativa se adopta un acuerdo legislativa en estricto apego a la norma constitucional -artículo 124-, que precisamente delimita e integra las normas escritas y no escritas que han formado el procedimiento de la reforma o interpretación del Reglamento de la Asamblea Legislativa. (…) Es así, como bien puede afirmarse que esta interpretación obedece más que a una realidad social, a una necesidad de seguridad jurídica en los procedimientos legislativos, a fin de que éstos sean claros, consensuados y no obedezcan a oportunidades políticas pasajeras. De esta manera, el acuerdo legislativo 4084 no es una interpretación literal de los artículos 205 y 207 del Reglamento de la Asamblea Legislativa, ya que ello no daría solución a los problemas prácticos que se presentan en la tramitación de los proyectos de reforma e interpretación de la reglamentación interna de la Asamblea. Sin embargo, tampoco puede considerarse que se trata de una actividad innovativa –creativa de normas nuevas-, como lo denuncian los accionantes, dado que lo que se hace es una integración de todos los elementos en una interpretación, dentro del marco jurídico existente, es decir, se ordena y sistematiza la práctica y normas reglamentarias aplicables a las reformas al Reglamento de la Asamblea Legislativa, -respetándose en todo- las potestades de los legisladores (derecho de enmienda, libre y amplia participación en el debate parlamentario), dictado conforme a la potestad de autorregulación de los legisladores (artículos 121 inciso 22) y 124 de la Constitución Política). No se trata de la superposición de disposiciones de otros procedimientos extraordinarios ni externos a la reglamentación interna parlamentaria, de manera que las normas procedimentales aprobadas no se sobreponen, no tienen prioridad y no están por encima de las normas existentes; son normas un complemento que llena una deficiencia de las normas.

X.- Obsérvese como la remisión a las normas reglamentarias es clara en el procedimiento para la tramitación de los proyectos de reforma e interpretación del Reglamento de la Asamblea Legislativa establecido en el acuerdo legislativo número 4084. Se han respetado y mantenido aspectos medulares del procedimiento que se ha seguido hasta el día de hoy en la discusión de las propuestas de estos proyectos, como se verá de seguido. Primero, el acuerdo no remite al artículo 124 constitucional, sino al 124 del Reglamento, que es el que autoriza a los Presidentes de las comisiones legislativas permanentes ordinarias, permanentes especiales y especiales, a discutir en forma ascendente las mociones de fondo que se presentan a un proyecto de ley. Segundo, no se irrespetan los principios básicos que se establecen en el artículo 124 de la Carta Fundamental; todo lo contrario, con el acuerdo interpretativo cuestionado, las propuestas de reformas al reglamento seguirán el trámite propio de los acuerdos legislativos, que en forma simplificada es el siguiente: se presenta la propuesta por uno o varios diputados; se le da lectura, salvo que la Asamblea Legislativa apruebe una moción de dispensa, por el voto afirmativo de dos tercios de los diputados presentes; el Presidente de la Asamblea tiene opción de permitir su discusión directamente en el Plenario o enviarlo a una comisión especial, a la que se le fija un plazo no inferior de tres días para que rinda su dictamen; se conoce la propuesta de acuerdo legislativo en el Capítulo del Régimen Interior. En este trámite los diputados pueden presentar mociones nuevas o reiterar las desechadas en comisión, dándosele prioridad a éstas últimas sobre las primeras. El diputado tiene derecho de hacer uso de la palabra por quince minutos para referirse a cada moción, las cuales se aprueban por la mayoría absoluta de los diputados presentes. Para referirse al fondo de la propuesta, cada legislador cuenta con un plazo de sesenta minutos. Tercero, no se está restringiendo la participación y debate, prácticamente el procedimiento se mantiene invariable, con la única salvedad de que ahora se les permite a los legisladores reiterar las mociones de fondo en el plenario, cuando se da el supuesto de que el proyecto sea analizado por una comisión especial. En consecuencia, debe también desestimarse la acción en lo que respecta a la supuesta creación de un nuevo procedimiento legislativo.

XI.- DEL RESPETO DE LOS PRINCIPIOS DEMOCRÁTICOS EN EL PROCEDIMIENTO ESTABLECIDO EN EL ACUERDO LEGISLATIVO NÚMERO 4084. Por último, nos referimos a la alegada violación a los principios democráticos. La regulación de la organización, funcionamiento y procedimientos de un órgano vital para la existencia del sistema democrático es un tópico que reviste mayor importancia. Por ello, las regulaciones internas de la Asamblea Legislativa tienen que estar inspiradas en los valores y principios democráticos, de tal forma que se propicien y logren los equilibrios institucionales entre el partido mayoritario y la oposición, y las fuerzas emergentes; entre los órganos del Estado y en especial con el Poder Ejecutivo; entre los mecanismos para coincidir y las reglas para disentir; entre la posibilidad de adoptar decisiones políticas y la garantía de una oposición efectiva y responsable; y entre la potestad de legislar y otras atribuciones que la Constitución Política le impone al Parlamento, en particular la función del control político, todo lo cual ya había sido considerado por este Tribunal con anterioridad, como se indicó en la sentencia número 0990-92, en la cita transcrita en Considerando III.- de esta sentencia. Así, entre los principios fundamentales que debe respetarse para que los acuerdos legislativos se lleven a cabo (sin que esto implique una lista taxativa y cerrada), se encuentran la participación de los diversos grupos políticos que integran el Parlamento, en condiciones de igualdad y libertad, además de la debida publicidad de los asuntos que se tramitan, a fin de que sean producto de la dialéctica entre las mayorías y minorías. Se pretende con ello que a través de los procedimientos legislativos se cumpla el principio democrático: la integración de los diversos intereses políticos, lo que justifica que ciertas materias se reserven al Parlamento (caso de la imposición de sanciones y el establecimiento de los tributos, por ejemplo).

XII.- El acuerdo 4048 no es contrario a principios democráticos, toda vez que no restringe la participación de los diputados y el debate de las mociones, al garantizar el derecho de enmienda, el uso de la palabra en defensa de las mociones, y el derecho de las mayorías para la toma de decisiones. De esta manera, el acuerdo es más favorable y otorga mayores garantías en respeto de los principios democráticos que deben informar los procedimientos legislativos, toda vez que las mociones que no pudieron ser conocidas por la Comisión en razón del vencimiento del plazo, pueden ser votadas sin discusión, e incluso, en caso de rechazo, pueden ser reiteradas en el Plenario. Antes las mociones se rechazaban, porque se interpretó que el Plenario era incompetente en razón del tiempo; ahora, por vía de la interpretación se da un avance en la observación de los principios democráticos. Al analizarse y discutirse mociones en orden ascendente y por orden de presentación, no caben las manipulaciones, inhibitorias del escrutinio y el análisis de temas polémicos -como afirman los accionantes-, porque el parámetro utilizado para la discusión es objetivo, a fin de evitar situaciones de privilegio, de modo, que la norma pretende dar un trato igualitario a todos los diputados. Con fundamento en estas consideraciones, es que la alegada violación a los principios democráticos carece de sustento, debiendo –en consecuencia- ser desestimada” (sentencia número 8408-99 de las 15:24 horas del 03 de noviembre de 1999)”.

A partir de lo dicho supra, queda claro entonces que el acuerdo 4084 es válido y constitucional, entendiéndose que el interés que tuvo el legislador con ese acuerdo, fue ordenar y clarificar mejor el procedimiento de trabajo y, para este Tribunal, respetó los principios democráticos puesto que no restringió la participación de las señoras diputadas y señores diputados ni el debate de las mociones, se garantizó el derecho de enmienda, el uso de la palabra en defensa de las mociones, y el derecho de las mayorías para la toma de decisiones. Ahora bien, precisamente en esa misma línea de ordenar la labor legislativa, se tiene que, posteriormente, en la sesión plenaria de la Asamblea Legislativa No. 47 del jueves 29 de julio de 2004, y como una especie de complemento en la misma línea del anterior acuerdo, se aprobó este otro:

“Sen~or diputado Vargas Fallas, sen~oras diputadas y sen~ores diputados, ustedes podra´n observar que el orden del di´a de hoy esta´ tal vez distinto a los di´as anteriores.

Habi´amos conversado con los jefes de Fraccio´n para reordenar un poco el orden del di´a, sobre todo en el capi´tulo de Re´gimen Interno. Ustedes podra´n apreciar que en los asuntos de Re´gimen Interno aparecen en primer lugar las reformas al Reglamento de la Asamblea Legislativa, toda vez que hace varios meses se habi´a aprobado una mocio´n de alteracio´n que asi´ ubicaba estos proyectos de acuerdo en el orden del di´a.

A continuacio´n, habi´a cerca de unas treinta mociones de orden de toda naturaleza: mociones de orden, mociones de posposicio´n, mociones de dispensa de tra´mites, pro´rrogas de comisiones especiales, y otras, las cuales esta Presidencia se permitio´ instruir a la Secretari´a del Directorio para que en el capi´tulo de re´gimen interno y de seguido a las reformas al Reglamento puedan ubicarse las mociones por tipo, por especie de mociones.

En el punto a) mencione´ reformas al Reglamento, el punto b) mociones de orden. Dentro de las mociones de orden apareceri´an las mociones de posposicio´n que ahi´ se indican que no hay. Luego, las mociones de orden conforme el arti´culo 153; luego, las pro´rrogas de comisiones especiales y; en u´ltimo, las mociones de dispensa de tra´mites. Esto para que cada uno de los sen~ores diputados y sen~oras diputadas sepan do´nde se van a ir ubicando las distintas mociones de orden en el capi´tulo de re´gimen interno.

Sobre la mocio´n que presento´ el sen~or diputado Vargas Fallas, hace algunas semanas, esta Presidencia en el uso de las facultades que le da el arti´culo 153 y, debidamente asesorado por el cuerpo asesor de la Secretari´a del Directorio, ubico´ la mocio´n del diputado Vargas Fallas, no como una mocio´n de orden, diputado, sino como una proposicio´n de los diputados toda vez que el contenido no era por el orden, sino ma´s bien por el fondo en los tra´mites que la Comisio´n Especial que se sen~ala en esta mocio´n esta´ tramitando.

Asi´ que, sen~or Diputado, al igual que las posposiciones, igual tambie´n que la que vimos ahora para llegar al permiso o sobrevuelo de aeronave, les ruego tambie´n que para conocerla en el futuro podamos plantear la posposicio´n.

Ustedes vera´n, sen~ores diputados y sen~oras diputadas, que no aparece ninguna mocio´n de posposicio´n. La razo´n de no aparecer es que siendo las mociones de posposicio´n una mocio´n que tiene el mismo efecto de la mocio´n de alteracio´n, pero para el di´a que se esta´ tramitando nada ma´s, esta Presidencia considera que una mocio´n de posposicio´n que ha sido presentada, que no ha sido discutida, ni votada el propio di´a, deberi´a de archivarse y el diputado que desee, en el futuro, proponer una nueva mocio´n de posposicio´n la haga el di´a siguiente, para ir limpiando la agenda en el capi´tulo de Re´gimen Interno.

Asi´ aclarado, pues sepan ustedes que a partir de hoy la Secretari´a del Directorio tendra´ instrucciones claras para que el orden del di´a sea estructurado de la forma que aparece hoy en el orden del di´a.

Gracias, sen~ores diputados y sen~oras diputadas”.

A partir de ambos acuerdos entonces, se puede interpretar una intención del legislador de ordenar su trabajo, de favorecer una mayor claridad y transparencia en su función de legislar y de lograr, en definitiva, darle contenido práctico al principio democrático. Se sabe que el fin primordial del orden del día es coadyuvar con el procedimiento parlamentario, ordenando los asuntos que deben ser tratados en una sesión, sin distinción del periodo en que se esta´, ya sea ordinario o extraordinario, y, por ello, en esta sucesión de ideas, resulta lógico que se quiera elaborar con la mayor claridad y nitidez posible, siempre bajo el supuesto de que el acomodo del orden del día es una actividad propia de la “interna corporis” de la Asamblea Legislativa, ello por estar así´ determinado en el Reglamento, que al efecto indica el artículo 35: “... La Agenda Parlamentaria estara´ constituida por todos los asuntos que al Plenario le compete le compete conocer y decidir...” y que la Sala ha reconocido como parte de la auto determinación propia del Parlamento; ahora bien, eso sí, siempre y cuando, como se dijo, las regulaciones internas de la Asamblea Legislativa respeten los valores y principios democráticos, de tal forma que se propicien y se logren los equilibrios institucionales entre los partidos mayoritarios, la oposición, las fuerzas emergentes y las minorías, todo en aras de permitir el ejercicio del principio democrático, de participación y de representación.

Los accionantes alegan que si los acuerdos parlamentarios N° 4084 adoptado en la sesión N° 24 del 10 de junio de 1999 y el emitido en la Sesión No. 47 del jueves 29 de julio de 2004, están vigentes y se integran al Reglamento de la Asamblea Legislativa como acuerdos interpretativos de éste, se hace obligatorio entonces su observancia, a lo que no se escaparía la intención del legislador de darle trámite vía procedimiento 208 bis, al expediente legislativo 19.922, debiendo recordarse que el reglamento de la Asamblea es parámetro de constitucionalidad y que la aprobación de un procedimiento especial para tramitar un expediente en concreto -como el 208 bis (ahora 234 bis)- implica una modificación al reglamento. No obstante, alegan que el hecho de que en la sesión ordinaria No. 37 del Plenario Legislativo del 30 de junio de 2016, se presentara la propuesta para darle trámite rápido al expediente legislativo 19.922, sin someterla a conocimiento del Pleno -siguiendo el orden y la forma establecidos tanto en el reglamento como en las interpretaciones señaladas-, es resulta en una violación sustancial del procedimiento. Agrega que el artículo 205, hoy 231 del Reglamento, establece que los proyectos para la emisión de acuerdos concernientes al régimen interior de la Asamblea -el cual es el caso bajo estudio pues la aprobación de un procedimiento especial para tramitar un expediente es un acuerdo concerniente al régimen interior de la Asamblea-, deberán presentarse por escrito, firmados por el diputado o los diputados que los inicien o acojan y deberán ser leídos por la Secretaría; acuerdos que, además lo que pretenden es reformar el reglamento por la vía que permite el 208 bis. En segundo lugar, establecen los acuerdos señalados supra -N° 4084 adoptado en la sesión N° 24 del 10 de junio de 1999 y el emitido en la Sesión No. 47 del jueves 29 de julio de 2004-, la forma en que se acomodarán ese tipo de propuestas en el orden de día y, en último lugar, el artículo 35 del reglamento establece que la sesión plenaria inicia con: 1) Discusión y aprobación del acta; 2) Suspensión de derechos y garantías, de conformidad con el inciso 7) del artículo 121 de la Constitución Política y 3) Asuntos del Régimen Interno, siendo justamente en este punto de la agenda en el que debió colocarse la propuesta de cita, lo cual no se respetó en el caso en estudio ya que en el expediente legislativo 19.922 dicha proposición, fue introducida al Plenario el 30 de junio de 2016 sin ningún aviso previo, no fue presentado por escrito, no fue leído por la Secretaría ni sometido al trámite que le correspondía y además, todo ello se hizo sin respetarse el principio de paralelismo de las formas según el cual, las cosas se deshacen de la misma forma en que se hacen. Agregan que la proposición no se incluyó dentro de la sesión legislativa en el espacio correspondiente al régimen interno, a pesar de que su conocimiento y tramitación debió ser conocida en la primera parte de la sesión en resguardo del principio democrático, de la regla constitucional de publicidad, y en tutela de los derechos de los legisladores, a la discusión, a la participación democrática de forma amplia, y a la representación. Por el contrario, se observa que la propuesta se conoció en la segunda parte de la sesión legislativa a pesar de que ese es el momento establecido para los primeros y segundos debates de los proyectos, lo cual estima merman la posibilidad de todos los diputados de minoría de poder ejercer sus derechos y, en general, al Plenario de desarrollar sus labores de manera en plazos razonables, de modo pausado y acorde con la importancia de su trabajo así como también con la responsabilidad que se les ha asignado.

XII.- Redacta el Magistrado Castillo Víquez. Sobre la aplicación del artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa al expediente legislativo 19.922. En el sub judice, algunos de los accionantes alegan que se ha configurado un vicio del procedimiento legislativo, en tanto que en la sesión plenaria ordinaria nro. 37 del 30 de junio de 2016 se conoció una moción de orden -vía artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa-, con la intención de crear un procedimiento especial para la tramitación del expediente legislativo nro. 19.922 y tal moción de orden fue conocida en la denominada “Segunda Parte de la Sesión” del Plenario. Alegan los accionantes, en primer lugar, que no es posible aprobar un procedimiento especial por medio de una “moción de orden”, ya que, según lo dispuesto por el artículo 207 del Reglamento de la Asamblea Legislativa, las reformas a tal cuerpo normativo se llevan a cabo mediante “acuerdos”. Agregan, que el Reglamento de la Asamblea Legislativa, en su artículo 153, permite las mociones de orden, “salvo que este Reglamento lo impida expresamente”. Por otra parte, añaden que el artículo 35 del Reglamento de la Asamblea Legislativa establece un orden riguroso en el “orden del día” del Plenario Legislativo, en el que reserva para la primera parte de la sesión, entre otros asuntos, el régimen interno de la Asamblea Legislativa, y se reserva la segunda parte para la discusión de los primeros y segundos debates de los proyectos de ley en trámite. Por lo que, según afirman, se han infringido los artículos 35, 205 y 207 del Reglamento de la Asamblea Legislativa, en relación con la interpretación realizada por la Presidencia de la Asamblea Legislativa mediante acuerdo número 4084, adoptado en la sesión nro. 24 del 10 de junio de 1999 y publicado en La Gaceta número 129 del 5 de julio de 1999.

Estima este Tribunal que, en la especie, no se ha configurado un vicio sustancial o esencial del procedimiento legislativo que provoque la inconstitucionalidad de la normativa impugnada. Lo primero que debe indicarse es que es el propio artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa el que prevé, expresamente, que mediante “moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda” (el destacado no corresponde al original). Es decir, no estamos en presencia de una desaplicación del Reglamento de la Asamblea Legislativa para el caso concreto, sino ante un procedimiento especial establecido por el propio Estatuto parlamentario. Asimismo, como ya se indicó en esta misma sentencia, este Tribunal ya ha resuelto, de forma reiterada, que el citado artículo 208 bis (ahora 234 bis) es compatible con el Derecho de la Constitución (valores, principios y normas). En concordancia con lo dispuesto en tal numeral, así como en la jurisprudencia de este Tribunal, la regularidad o validez constitucional de los procedimientos especiales para tramitar proyectos de ley, aprobados con sustento en el referido artículo 208 bis (ahora 234 bis), deriva de que la correspondiente moción de orden sea aprobada por mayoría calificada, se aplique a proyectos de ley cuya aprobación requiera mayoría absoluta -con las excepciones que en ese mismo numeral se contemplan- y, en su estructuración, se respete el principio democrático y se salvaguarde el derecho de enmienda. Aspectos que se han cumplido en sub lite. De hecho, al conocer, en su momento, de la consulta legislativa facultativa de constitucionalidad (expediente 17-017148-0007-CO) formulada respecto del entonces proyecto de aprobación de la “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, expediente legislativo 19.922, este Tribunal tuvo oportunidad de analizar el procedimiento especial aprobado para este caso en particular y, finalmente, concluyó, mediante voto 2018-005758 de las 15:40 horas del 12 de abril de 2018, que este respetaba los principios constitucionales de igualdad, razonabilidad, proporcionalidad y participación democrática, así como al derecho de enmienda. Tampoco se da un vicio sustancial en el procedimiento legislativo por el hecho de que se haya aplicado un procedimiento especial a través de una moción de orden. En primer lugar, es el mismo numeral 234 bis que, de manera expresa, establece que el procedimiento especial se puede aplicar mediante una moción de orden. En segundo término, nótese que haciendo la respectiva armonización de normas y, por consiguiente, uniendo el numeral 234 bis con el 153 del mismo cuerpo normativo, tenemos que en las mociones de orden solo puede hablar hasta por cinco minutos el proponente, sea de manera individual o conjunta. En el sub lite, según consta a los folios 87 y 88 del expediente legislativo[1], el presidente de la Asamblea Legislativa, apartándose de lo dispuesto por la normativa, le dio el uso de la palabra al diputado don Edgardo Araya para expresar su oposición. La lógica de que en las mociones de orden no se conceda la palabra tiene una razón de ser, y que están diseñadas para incidir en el procedimiento parlamentario, reservando la discusión cuando se conozcan las mociones de fondo o el debate general del proyecto de ley, de ahí que resulta incorrecto sostener que en aplicación de esta normativa se violentan los componentes esenciales de principio democrático o del pluralismo político, específicamente el derecho al uso de la palabra, etc., por lo que por esta razón también debe rechazarse este agravio.

Finalmente, el que la respectiva moción de orden, para aprobar el citado procedimiento especial, se haya conocido o discutido en la segunda parte de la sesión, no así en la primera parte, no constituye -a juicio de esta Sala- un vicio sustancial o esencial del procedimiento legislativo que determine su inconstitucionalidad. Debe reiterarse, en cuanto al tema de vicios y nulidades en el procedimiento parlamentario, que los vicios invalidantes son aquellos que tienen la característica de sustanciales y que están referidos al quebranto de los elementos esenciales del principio democrático o del pluralismo político o suponen omisiones de un requisito que exige el Derecho de la Constitución. En cuyo caso, lo relevante en el sub judice, desde el punto de vista constitucional, es que tal acuerdo se haya votado por mayoría calificada, así como que exista la posibilidad de hablar a favor de la moción -en este caso el presidente incluso permitió hablar en contra-, y no que tal moción se haya conocido, discutido y votado en la primera o segunda parte de la sesión. Más aún, en una correcta interpretación del numeral 153 del Reglamento de la Asamblea Legislativa, y dada la naturaleza de la moción de orden –que incide en el procedimiento parlamentario- y la particularidad del Derecho Parlamentario -cauce necesario para traducir en acuerdos legislativos el resultado de la concertación política- debe de entenderse el término debate en su sentido amplio, y no restringido, y por consiguiente, en cualquier momento de la sesión. Ergo, considera este Tribunal que, en cuanto a este extremo, no se configura una irregularidad procesal que constituya una violación a un trámite esencial del procedimiento legislativo capaz de invalidarlo.

XIII.- Continúa redactando el Magistrado Castillo Víquez. Algunos accionantes alegan también que el procedimiento aprobado para el proyecto de ley tramitado bajo el expediente 19.922 vía artículo 208 bis, establecía una serie de reglas que debían ser cumplidas de manera estricta pero no se hizo así y con ello se vulneraron procedimientos como las publicaciones de las mociones de texto sustitutivo, los plazos para dictaminar el proyecto, entre otras. Al aplicarse el procedimiento del 208 bis, se restringió la participación de diputados, del Poder Judicial y de otros actores y a pesar de que se establecieron reglas, éstas no se cumplieron. Ese procedimiento eliminó y restringió indebidamente la participación y representación de los legisladores, así como también su derecho de enmienda, lo que vulnera el principio democrático. Al establecerse que solo se recibirían mociones de fondo en el plenario durante los dos primeros días de discusión del proyecto, se restringió la participación de terceros en el proceso de formación de la ley. Como se explicó supra, los vicios que se alegan no tienen el carácter de sustancial y, por consiguiente, no tienen la fuerza para invalidar el procedimiento parlamentario. Sobre el tema de publicación, se hará un abordaje amplio en los considerandos posteriores. Finalmente, en lo que atañe a la restricción en la participación de las diputadas y diputados y terceros en el procedimiento de la formación de la ley, es Tribunal, al validar el este tipo de procedimiento especial que autoriza el Estatuto Parlamentario, lógicamente, no podría sostener una postura contraria, en el sentido de que resulta inconstitucional por el hecho de que los (as) diputados (as) y terceros tienen un espacio más reducido para participar en el proceso de formación de la ley, toda vez que, de actuar en esa dirección se caería en un contradicción de razonamiento lógico. Es decir, si el 208 bis -hoy 234 bis- es constitucional también resulta constitucional el hecho de que la participación se más acotada.

XIV.- Redacta el Magistrado Castillo Víquez. Sobre el incumplimiento de las reglas especiales fijadas para la tramitación del Proyecto de Ley del Expediente No. 19.922. En las acciones de inconstitucionalidad bajo estudio, los accionantes acusan que se ha dado otra vulneración relativa al cumplimiento de las exigencias del Reglamento de la Asamblea Legislativa y, sobre todo, de las reglas que fueron aprobadas al decidirse el trámite rápido -vía 208 bis ahora 234 bis- al expediente legislativo No. 19.922 por parte del Plenario de la Asamblea Legislativa el 30 de junio de 2016 y, en las cuales, se puede leer, en lo que interesa, lo siguiente:

“(…) Para que de conformidad con lo establecido en el artículo 208 bis del Reglamento de la Asamblea Legislativa, se le aplique el siguiente procedimiento especial al Expediente Legislativo Nº 19.922, “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa”(…)

• 3)Que la moción referida dispone de manera detallada los procedimientos especiales, que debe cumplir en todo momento la iniciativa de ley, definiendo de forma explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial respetando siempre los principios conformes con el Derecho de la Constitución, como son el respeto al principio democrático y de participación política, siguiendo en este procedimiento la doctrina que ya la Sala Constitucional ha definido (…)

Obsérvese que la misma moción dispone -de manera detallada- las reglas que se deben cumplir en todo momento, en el trámite de la iniciativa de ley, y se advierte sobre el respeto que debe imperar en relación con los principios del Derecho de la Constitución, así como la doctrina sentada por la Sala Constitucional. No obstante lo anterior, los accionantes aducen que dicho contexto normativo no se cumplió a cabalidad por parte de los legisladores y, en tal sentido, afirman que específicamente se desatendió la obligación de publicar todos y cada uno de los textos que se fueron adjuntando y aprobando en el expediente legislativo No. 19.922, ello a pesar de que tal obligación fue sentada como una de las reglas del procedimiento 208 bis acordado el 30 de junio de 2016 y que, en cuanto a este punto en concreto, disponía:

“(…)

h-Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto (…).

Previo al análisis del reclamo planteado por los accionantes en relación con la vulneración al principio de publicidad, se hace necesario hacer un recuento de lo ocurrido en el expediente legislativo 19.922 que permita clarificar la situación, así como también para comprender el alcance de lo alegado por los accionantes. En tal sentido, se observa en el folio 41 que, en fecha 5 de abril de 2016, por parte de varios Diputados y Diputadas, se presentó a conocimiento de la Asamblea Legislativa el proyecto de ley tramitado bajo expediente legislativo Nº 19.922 denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, el cual contenía 4 capítulos con los cuales se pretendía reformar lo siguiente: a) en el Capítulo I contenía “Modificaciones y Adiciones al Régimen General de Pensiones con cargo al Presupuesto Nacional”, Ley No. 7302 conocida como “Ley Marco de Pensiones”; b) en el Capítulo II regulaba “Caducidad y Tope de Derechos de Pensión de la Ley No. 148”, mejor conocida como Ley de Pensiones de Hacienda; c) en el Capítulo III disponía “Reformas a Otras Leyes” como por ejemplo la Ley Orgánica del Sistema Bancario Nacional y sus Reformas, la Ley No. 7605 que deroga el régimen de pensiones de los diputados, la Ley de Protección del Trabajador No. 7983, la Ley del Régimen Privado de Pensiones Complementarias No. 7523 y Ley No. 4573 Código Penal; d) finalmente, en su Capítulo IV regulaba la reforma a la Ley Orgánica del Poder Judicial No. 7333. Recibido en esa fecha dicho Proyecto de Ley, el Presidente de la Asamblea Legislativa ordenó pasarlo a conocimiento de la Comisión Permanente de Asuntos Sociales para que se emitiera el dictamen correspondiente, así como trasladar el proyecto original al Departamento de Archivo, Investigación y Trámite para su publicación. Según auto de este departamento del 8 de junio de 2016, se procedió a remitir el proyecto original a la Imprenta Nacional para su respectiva publicación en el Diario Oficial La Gaceta (folio 43). Por su parte, en sesión ordinaria del Plenario Legislativo del 30 de junio de 2016, se presentó una moción de orden que, como se afirmó en el considerando anterior, se introdujo para ser conocida en la segunda parte de la sesión legislativa de conocimiento de Segundos Debates; moción de varios diputados y diputadas para que, de conformidad con lo establecido en el artículo 208 bis del Reglamento de la Asamblea Legislativa, se le aplicara a ese expediente el procedimiento especial. Como ya se ha indicado, tal propuesta fue aprobada el 30 de junio de 2016 en los términos en que se presentó, con una votación que obtuvo 39 diputados a favor y 10 diputados en contra. Obsérvese que, en esa sesión, el Presidente de la Asamblea Legislativa aclaró “que el texto base será el del expediente Nº 19.651 que se incorpora como una moción de texto sustitutivo, firmada por todas las fracciones, con lo cual en el momento en que inicie el trámite de artículo 208 bis del expediente 19.922, se conocerá la moción de texto sustitutivo que utiliza como base el proyecto de ley que había sido presentado por diversas organizaciones del Poder Judicial. Ese es el texto base que ocuparía la discusión del proyecto de ley 19.922, que además estaría estableciéndose su permanencia por cuatro meses en la comisión respectiva…”. Ahora bien, conforme con aquella decisión legislativa, a partir de ese momento dicho expediente legislativo sería tramitado de conformidad con las reglas de procedimiento aprobadas en esa sesión y conforme lo autoriza el artículo 208 bis del Reglamento de la Asamblea Legislativa. En relación con la publicación de este proyecto de ley que, como se dijo supra, se tramitó el 8 de junio de 2016 por el Departamento de Archivo, Investigación y Trámite, hay que indicar que ello se hizo efectivo en el Alcance número 110 del Diario Oficial La Gaceta Nº 126 del jueves 30 de junio de 2016; sin embargo, debe advertirse que el texto que se publicó fue el que originalmente se había sometido a conocimiento de la Asamblea Legislativa el 5 de abril de 2016, y que -según se desprende del expediente legislativo- correspondía al presentado por un grupo de diputados y diputadas. Aquí es importante resaltar que, justo el día en que se hizo tal publicación, fue el día en que se aprobó en el Plenario Legislativo, darle trámite al expediente legislativo vía 208 bis del reglamento, así como también que el texto base con el que trabajaría la Comisión Especial, no sería el que constaba en el expediente No. 19.922, sino el que estaba en el expediente Nº 19.651, que se incorporaba como una moción de texto sustitutivo, firmada por todas las fracciones y que se trataba entonces de una versión diferente a la que salió ese día publicada; versión que, según se aclaró por parte del Presidente de la Asamblea Legislativa en ese momento -30 de junio de 2016- correspondía al proyecto presentado por varios diputados y diputadas de común acuerdo con los gremios del Poder Judicial, la cual se estaba tramitando bajo el expediente legislativo No. 19.651 denominado “Ley de Reforma al Título IX de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937 y sus reformas”, y cuyo proyecto correspondía única y exclusivamente al interés del legislador de modificar el Sistema de Jubilaciones y Pensiones del Poder Judicial y no en relación con otras normativas como sí lo hacía el proyecto original del expediente No. 19.922. Aclarado lo anterior, se tiene que luego, el 5 de julio de 2016 se recibió el citado expediente legislativo (No. 19.922 cuyo contenido ahora era el No. 19.651) en la Comisión Permanente de Asuntos Sociales a fin de que continuara ahí con su trámite; posteriormente, el 5 de septiembre siguiente, en la sesión ordinaria No. 065 del Plenario Legislativo, se designó la comisión y se le llamó “Comisión Especial encargada de conocer y dictaminar el proyecto denominado “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo Nº 19.922” (folio 116, 133 y 137) , ello a pesar de que, como se advirtió supra, ahora el objetivo del Plenario era solamente reformar el Régimen de Jubilaciones y Pensiones del Poder Judicial. Tal Comisión Especial, se instala el 13 de septiembre siguiente, siendo que, en esa misma fecha, en su sesión ordinaria Nº 1, se conoció la moción Nº 2 (3-01 CE) de varios diputados para formalizar lo que ya se había decidido el 30 de junio anterior, es decir, que se tomara como base de discusión el texto sustitutivo que constaba en el expediente Nº 19.651 conforme se había dispuesto en el Plenario cuando se aprobó darle trámite al expediente por la vía del 208 bis del reglamento; moción que se aprobó por unanimidad de los miembros de la Comisión Especial (véase folio 1957 del expediente legislativo No. 19.922). Según se desprende del expediente legislativo, y conforme se manifiesta por algunos accionantes, ciertamente este nuevo texto aprobado por la Comisión Especial el 13 de septiembre de 2016, no fue publicado y así lo consignó esta Sala en la opinión consultiva número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 al conocer Consulta Legislativa Facultativa que se interpuso en relación con este proyecto de ley, en la cual, se señaló al respecto, lo siguiente:

“XII.- Sobre la alegada violación al principio de publicidad. Los(as) consultantes aducen que el texto sustitutivo aprobado por la Comisión Especial en la sesión del 13 de septiembre de 2016 no fue publicado, lo que, a su parecer, contraviene el principio de publicidad, así como las reglas fijadas por el procedimiento especial aprobado para el expediente número 19.922. Sobre el particular, de la prueba rendida por el director ejecutivo de la Asamblea Legislativa el 12 de marzo de 2018, se desprende que, si bien el documento mencionado no fue publicado, lo cierto es que dicho texto sustitutivo no tuvo ninguna incidencia, toda vez que el texto sustitutivo aprobado fue otro, por lo que no se afectó el principio de publicidad. Hay que tener presente que la publicidad no es un fin en sí mismo, tal y como lo ha sostenido este Tribunal en la opinión consultiva número 2018-003851, cuando estableció lo siguiente:

“Ciertamente, tal como se señaló en la sentencia N° 2006-009567, la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático. Ahora bien, a la luz de lo señalado en la sentencia N° 2013-008252, deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados. Como se dice en la sentencia N° 2013-008252 recién transcrita “…Tal cualidad potencia a nivel constitucional el propósito fundamental de la publicidad: promover la intervención de la ciudadanía en las decisiones fundamentales del Estado. Si este fin no resulta vulnerado y se advierte que no se ha dado una verdadera obstaculización a la participación popular, entonces un error en la publicación no puede llegar a configurar por sí solo un vicio esencial del procedimiento legislativo”. (El subrayado es agregado). Mutatis mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo; de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo”.

Así las cosas, no se presenta una violación al principio de publicidad, tal y como aduce en el escrito inicial de esta consulta legislativa, pues no ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento parlamentario. Por lo anterior, se descarta el alegato planteado” (los destacados son del original) (ver sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018).

Así las cosas, hasta acá la Sala mantiene el criterio vertido supra y, por ende, no se va a hacer alguna referencia adicional sobre el punto, por lo que los accionantes deberán estarse a lo ahí resuelto sobre lo actuado por la Asamblea Legislativa hasta ese momento procesal en concreto en relación con este segundo texto sustitutivo del expediente legislativo No. 19.922 que, como se dijo, corresponde al aprobado por la Comisión Especial el 13 de septiembre de 2016, que luego fue abandonado por otro texto, es decir, que no fue el texto finalmente aprobado, por lo que su omisión de publicación no tuvo ninguna incidencia.

XV.- Continúa redactando el Magistrado Castillo Víquez: Ahora bien, continuando con la tramitación del expediente Nº 19.922 en relación con tema objeto de estudio en cuanto a la publicación de sus textos sustitutivos, debe indicarse que la Comisión Especial designada para estudiar y dictaminar el proyecto de ley, continuó con el análisis del texto -recuérdese que era el contenido en el expediente No. 19.651- y durante los meses de septiembre de 2016 a marzo de 2017, recibió en diferentes audiencias a varias personas vinculadas con temas relativos al proyecto para que se apersonaran a la Comisión y expusieran sus posiciones, siendo que, entre ellos, se recibió a representantes de la Corte Plena, del área administrativa así como a diferentes gremios, todos del Poder Judicial, también a personal del Ministerio de Hacienda, de la Superintendencia de Pensiones, de la Universidad de Costa Rica, entre otros. Consta en el expediente legislativo que el 29 de marzo de 2017, finalizaron las comparecencias de los últimos invitados de la Comisión Especial y al retomarse la discusión del proyecto, el diputado Presidente de esa Comisión Especial manifestó -según consta en actas visibles en folio 1716-, que el lunes 27 de marzo de 2017 se había puesto a circular un nuevo texto sustitutivo “en reunión de todos los asesores y de todos los despachos”, así como también que ese día fue conversado y que se anunció que dicho texto se iba a conocer en la sesión del 29 de marzo siguiente. Además, se observa en actas visibles en el expediente legislativo No. 19.922 que, en esa fecha -29 de marzo de 2017-, se presentó en la Comisión Especial la moción No. 1-15 de varios diputados a fin de que se dispensara de lectura la moción de texto sustitutivo y su contenido, la cual se aprobó y acto seguido, se inició la discusión por el fondo de la moción de texto sustitutivo, quedando aprobada en esa misma sesión con 7 diputados a favor y 1 en contra (folio 1731 Tomo 7), ello con la recomendación de algunos diputados para que ese nuevo texto fuera publicado (folio 1731 y 1733 Tomo 7). De esta manera, a efecto de que quede claro lo ocurrido, debe indicarse entonces que, en esa fecha -29 de marzo de 2017-, se introdujo un tercer texto, que es nuevo, y que quedó aprobado en la Comisión Especial como el texto sustitutivo con el que se trabajaría a partir de ese momento. Luego de esto, se observa que el 4 de abril de 2017, en la sesión ordinaria No. 16 de la Comisión Especial, algunos diputados presentan una nueva moción en la que manifiestan que, con el nuevo texto aprobado el 29 de marzo de 2017, se incumplió el acuerdo que se tenía de trabajar sobre la base del texto sustitutivo que había sido admitido el 13 de septiembre de 2016, por lo que pedían que se volviera a tener como texto base de trabajo de la Comisión Especial, aquél que había sido acogido el 13 de septiembre de 2016 (folio 1751); moción que fue rechazada, disponiéndose que el texto sustitutivo aprobado el 29 de marzo de 2017, sería el que se mantendría bajo estudio y como base de trabajo de esa Comisión Especial. Se tiene que luego de ello, mediante correo remitido el 17 de abril de 2017, y a través del oficio AL-20035-OFI-0033-2017 de esa fecha, suscrito por el Presidente de esa Comisión Especial, se remitió ese texto sustitutivo al Director Ejecutivo de la Asamblea Legislativa para que se procediera a hacer la publicación correspondiente en el Diario Oficial La Gaceta (folio 1767 Tomo 8). Ahora bien, no obstante lo anterior, se observa que en sesión No. 17 del 18 de abril de 2017, la Comisión Especial aprobó una moción para regresar al texto base que fuera aprobado el 13 de septiembre de 2016 (folio 1776 Tomo 8); sin embargo, en vista de que el día anterior se había dispuesto enviar el proyecto a publicación, esa sesión no podía realizarse porque las reglas aprobadas para tramitar el expediente por la vía del artículo 208 bis eran muy claras al establecer que cuando se remitía un proyecto a publicación, el conocimiento del expediente No. 19.922 quedaba suspendido. En consonancia con lo anterior, el Departamento de Estudios, Referencias y Servicios Técnicos mediante informe AL-DEST-CJU-027-2017 de 20 de abril de 2017, manifestó que la moción presentada en la sesión No. 17 del 18 de abril de 2017 para volver al texto base anterior, no era admisible y, por ende, la votación de esa moción no era válida, entonces, con sustento en el informe del citado departamento, esa sesión fue anulada, quedando nulos los acuerdos ahí aprobados (folio 1973 Tomo 8); en consecuencia, el texto sustitutivo base de discusión seguía siendo el tercero, el aprobado por la Comisión Especial el 29 de marzo de 2017. Mientras tanto, se desprende del expediente legislativo que en el Alcance No. 91 del jueves 27 de abril de 2017, apareció publicado aquél texto sustitutivo aprobado el 29 de marzo de 2017 (folio 2126), denominado ahora “Reforma del Título IX de la Ley Orga´nica del Poder Judicial, de las Jubilaciones y Pensiones Judiciales, N° 7333 del 5 de mayo de 1993 y sus Reformas”, toda vez que debe tenerse presente que, desde el 30 de junio de 2016, quedó clara la intención del legislador de aprobar un proyecto de ley que reformara sólo el Sistema de Jubilaciones y Pensiones del Poder Judicial y no varios a la vez como estaba contenido en el texto original del expediente legislativo No. 19.922. Continuando con el estudio del expediente legislativo, se observa que en la sesión ordinaria de la Comisión Especial No. 19 del 27 de junio así como en la No. 20 del 19 de julio, ambas fechas del 2017, se presentó una moción -cada uno de esos días-, a fin de que se acogiera como texto base de discusión, el documento que había sido aprobado en la sesión ordinaria No. 1 de esa Comisión del 13 de septiembre de 2016; moción que finalmente fue rechazada el 19 de julio de 2017 (folio 2284 Tomo 9) y, por ende, el texto de trabajo continuaba siendo el tercero, el aprobado el 29 de marzo de 2017. Luego de esto, en sesión extraordinaria de la Comisión Especial No. 22 del 26 de julio de 2017, se aprueba una moción según la cual, a raíz del estudio que efectuaba la Universidad de Costa Rica, se elaboraría un nuevo texto apegado a los criterios técnicos del informe del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE), siendo que, con sustento en esta decisión, el 27 de julio siguiente, algunos diputados presentan una moción de texto sustitutivo a fin de que se modifique el que estaba en discusión y, en su lugar, se tenga éste como documento base (folio 2407 Tomo 10); nuevo texto sustitutivo que fue aprobado ese mismo día, en la sesión extraordinaria de la Comisión Especial No. 23 de 27 de julio de 2017, siendo que, además, en esa sesión se emitió el Dictamen Afirmativo de Mayoría, así como también se aprobó una moción para publicarlo (folio 2450 Tomo 10). Consta en el informe rendido a la Sala por parte de la Presidenta de la Asamblea Legislativa, así como también en el folio 2866 del expediente legislativo, que ese Dictamen Afirmativo de Mayoría fue publicado en el Alcance No. 189 del viernes 4 de agosto de 2017 y, de igual manera, que en el Alcance No. 190 del lunes 7 de agosto de 2017, se publicó el Dictamen de Minoría. Vale aclarar que este nuevo texto se trataba del número 4 agregado al expediente legislativo No. 19.922 y fue consultado a la Corte Suprema de Justicia 2625 y 2759 y ss.

Se observa que, posteriormente, en sesión del Plenario Legislativo No. 6 del 4 de septiembre de 2017, se inició la discusión por el fondo del expediente legislativo No. 19.922 en el trámite de Primer Debate, para lo cual se realizó la explicación de los dictámenes y se contabilizó el primer día para la presentación de mociones de fondo, siendo que éstas, de conformidad con las disposiciones del artículo 208 bis aprobadas para la tramitación de este expediente, podían ser presentadas en las sesiones del 4 y 5 de septiembre de 2017, suspendiéndose la discusión del proyecto de ley hasta que la Presidencia de la Asamblea Legislativa determinara la admisibilidad de las mociones de fondo presentadas al dictamen afirmativo de mayoría (folio 3177). En sesión ordinaria No. 067 del 19 de septiembre de 2017, la Presidencia de la Asamblea Legislativa comunicó la resolución No. 02-17-18 de 18 de septiembre anterior mediante la cual se dispuso: a) admitir la totalidad de las 102 mociones de fondo presentadas al expediente No. 19.922 por ajustarse a las reglas previstas en el inciso 3) del punto II de la moción 208 bis; b) agrupar las mociones idénticas para ser discutidas en un solo acto aunque votadas individualmente; y c) se declaró inadmisible otra moción presentada por un diputado que no era miembro de la Comisión Especial Dictaminadora. Igualmente se procedió a hacer el traslado de las mociones a dicha Comisión Especial (folio 3195 y 3198), observándose en el expediente legislativo que estas mociones fueron ahí discutidas en la sesión No. 25 del 20 de septiembre de 2017 (3210 y 3461); sesión que inició a las 17 horas 29 minutos (folio 3471 del Tomo 14) y concluyó a las 22 horas 31 minutos (folio 3600 Tomo 15), siendo que, en esa única jornada, todas fueron conocidas y analizadas. El acta que se levantó en esa sesión, fue aprobada en la Comisión Especial en la siguiente sesión, la extraordinaria No. 26 de 25 de septiembre de 2017; fecha en la que se hizo entrega en la Secretaría del Directorio del primer informe de mociones vía artículo 137 sobre el expediente No. 19.922 tramitadas por la Comisión Especial y en el que se hizo constar que se tramitaron 102 mociones, siendo aprobadas las números 2, 3, 5, 10, 23, 27, 31, 32, 37, 41, 44, 45, 50, 61, 64, 71, 78, 84, 86, 89, 91, 94, 96 y 98 (folio 3208), disponiéndose además que el expediente se remitiría a la Comisión de Redacción para que ahí se hicieran los ajustes correspondientes en relación con lo que se aprobó el 20 de septiembre anterior (folio 3611 Tomo 15 del expediente legislativo). Por su parte, consta que, el 27 de septiembre de 2017, la Presidencia de la Asamblea Legislativa anunció la recepción del Informe de Mociones de Fondo por parte de la Comisión Dictaminadora, contabilizándose esa como la primera sesión -de 2 establecidas- para presentar las mociones de reiteración de acuerdo con el procedimiento del 208 bis adoptado (folio 3612), así como también que la segunda sesión y final para la recepción de esas mociones, sería el 28 de septiembre siguiente (folio 3621 del Tomo 15). Del expediente legislativo se desprende que en la sesión ordinaria del Plenario Legislativo del 28 de septiembre de 2017 (folio 3623 del Tomo 15), se reinició la discusión del primer debate del proyecto No. 19.922 y se aprobó una moción a fin de que se pospusieran todos los asuntos del orden del día en aras de que se conociera ese expediente (folio 3630 del Tomo 15). Según se desprende del expediente legislativo, hasta esta fecha no consta la existencia de algún documento o moción que sugiriera publicar el texto. Posteriormente, en resolución No. 03-17-18 de 11 de octubre de 2017 de la Presidencia de la Asamblea Legislativa, se comunicó que se presentaron 65 mociones de reiteración durante el plazo habilitado para ello, pero una se retiró, quedando 64, de las cuales, 57 se admiten y 7 se tuvieron por no admitidas; se agruparon las idénticas para ser discutidas en un solo acto aunque votadas individualmente y se continuó con el conocimiento de tales mociones pero sin ninguna advertencia para ordenar la publicación del documento (folio 3635 y 3663 del Tomo 15). En sesión extraordinaria No. 010 del 17 de octubre de 2017, el Plenario Legislativo continuó la discusión por el fondo en el trámite de Primer Debate del expediente No. 19.922 con el conocimiento de las mociones de reiteración, contabilizándose como la primera sesión para ello (folio 3673 del Tomo 15); se continuó con ello en la segunda sesión extraordinaria No. 011 del Plenario el 18 de octubre de 2017 (folio 3781 del Tomo 16); en la tercera sesión extraordinaria No. 012 del Plenario del 24 de octubre de 2017 (folio 3834 del Tomo 16); en la cuarta sesión extraordinaria No. 013 del Plenario del 25 de octubre de 2017 (folio 3907 del Tomo 16) y, finalmente, en la quinta sesión extraordinaria No. 014 del Plenario legislativo correspondiente al 30 de octubre de 2017 (folio 4000 del Tomo 17), se aprueba en Primer Debate el texto del Dictamen Afirmativo de Mayoría aceptado por la Comisión Especial el 27 de julio de 2017, y que correspondía al cuarto texto que se integró al expediente legislativo No. 19.922; texto que, como se dijo supra, había recibido modificaciones por las mociones de fondo admitidas por la Comisión Especial y posteriormente, sufrió variaciones adicionales con las mociones de reiteración que fueron admitidas por el Plenario Legislativo y que culminó con el texto de consenso que se aprobó en Primer Debate.

Hasta este punto y volviendo al reclamo de los accionantes en cuanto a la falta de publicación de los diferentes proyectos contenidos en el expediente legislativo No. 19.922, debe recordarse que, para esta fecha -30 de octubre de 2017 y como ya se ha dicho-, se habían realizado 2 publicaciones de los textos sustitutivos que estaban siendo objeto de conocimiento por parte de la Comisión Especial encargada de emitir el dictamen del proyecto: la primera publicación se hizo en el Alcance 110 de La Gaceta del jueves 30 de junio de 2016 y correspondió al proyecto original presentado el 5 de abril de 2016 al que se le asignó el número de expediente legislativo 19.922; y la segunda publicación visible en la Gaceta Digital No. 147, Alcance No. 189 de 4 de agosto de 2017 en donde se publicó el Dictamen Afirmativo de Mayoría de la Comisión Especial. Adicionalmente, en Gaceta Digital No. 148, Alcance No. 190 de 7 de agosto de 2017 se publicó el Dictamen de Minoría de la Comisión Especial. En relación con lo dicho, no puede dejarse de lado la obligación que fue sentada como una de las reglas del procedimiento 208 bis acordado el 30 de junio de 2016 y que, en cuanto a este punto en concreto de la publicación, disponía:

“(…)

h-Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto (…)”.

A partir de lo anterior, es muy clara la decisión del legislador: cualquier moción de texto sustitutivo aprobada -obviamente entendiéndose que fuera diferente a la anterior que se estudiaba-, o cualquier cambio que modificara en forma sustancial el proyecto de ley, debía ser publicada en el Diario Oficial La Gaceta, y para ello, era obligación del Presidente de la Comisión Especial, solicitar al Directorio Legislativo que se acordara su publicación con el fin de salvaguardar el principio constitucional de publicidad. En el caso concreto, se alega que el texto modificado con las mociones de fondo que fueron aceptadas, y el texto posterior variado además con las mociones de reiteración admitidas, no se publicaron nuevamente a pesar de que, ellos estiman que se dieron modificaciones sustanciales del proyecto de ley que luego terminó siendo aprobado en primer debate sin que, previo a ello, se hiciera publicación alguna. La publicación se dio, luego de aprobadas las mociones y modificaciones en primer debate. El documento fue publicado en la Gaceta Digital No. 212, Alcance No. 268 de 9 de noviembre de 2017 (véase folio 4368 del Tomo 18 del expediente legislativo). Concretamente, los recurrentes alegan un vicio en el procedimiento parlamentario, en vista de que en la sesión del 27 de julio del 2017 la Comisión Especial aprobó un texto sustitutivo y, de conformidad, con el punto 2, inciso h), de la normativa que regula el procedimiento especial, no se suspendió el trámite del proyecto por el plazo de ocho días hábiles, sino que el citado órgano parlamentario sesionó y dictaminó el proyecto de ley (véase el folio 2417 del expediente legislativo). No desconoce la mayoría de este Tribunal que efectivamente se produjo el vicio puntualizado. Empero, por las razones que se exponen a continuación, tal vicio no tiene la fuerza suficiente para invalidar el procedimiento seguido en este caso y, mucho menos, el acto final parlamentario, sea la ley que se cuestiona en las acciones acumuladas.

Si bien este Tribunal, en la opinión consultiva que evacuó la consulta de constitucionalidad facultativa sobre el proyecto de ley de Solidaridad Tributaria -n.° 004621-2012-, estableció que los (as) diputados (as) se debían ajustar de manera estricta y escrupulosamente al procedimiento diseñado de conformidad con el numeral 208 bis -hoy 234 bis-, es lo cierto que tal postura no puede tener un carácter absoluto. Por consiguiente, hay que tener presente que no todo vicio al procedimiento especial diseñado conlleva un vicio sustancial del procedimiento, toda vez que estos se refieren a aspectos nucleares de este último asociado al principio democrático y sus componentes esenciales y al derecho de enmienda. Establecido lo anterior, el vicio que se alega tiene que ver con lo que se denomina en el Derecho Parlamentario costarricense como el plazo de espera, instituto del procedimiento parlamentario que está previsto en diferentes etapas del iter parlamentario. A juicio de la mayoría de este Tribunal, el vicio que se invoca no tiene el mérito para ser subsumido dentro de los esenciales o sustanciales, e incluso en uno relativo, toda vez que con él no se han vulnerado trámites sustanciales al procedimiento parlamentario; se trata más bien de un vicio de poca importancia.

A mayor abundamiento, si la mayoría de este Tribunal, cuando se ha invocado el quebranto al principio de rigidez constitucional, ha sentado la doctrina que las vulneraciones al procedimiento del 195 constitucional han de ser sustanciales y, por consiguiente, no toda violación a lo que dispone ese numeral conlleva la nulidad de la reforma constitucional, mal haríamos en seguir una vía distinta, cuando se trata de la vulneración a una norma que se dispone en el procedimiento especial. La lógica impone que se debe dar el mismo razonamiento, pues si en la normativa de mayor rango -la norma constitucional- se exige que el vicio debe ser sustancial, en la normativa de menor rango - el Reglamento de la Asamblea Legislativa y la moción que norma el procedimiento especial- también el vicio ha de tener esa característica.

Hay otro elemento que se debe tener presente en sub lite, y es que la Comisión Especial tenía plazo para dictaminar el 31 de julio, por lo que era materialmente imposible suspender el conocimiento del proyecto por ocho días hábiles el día 27 de julio, máxime que no era plausible presumir que el Plenario le daría una nueva prórroga al órgano preparatorio en el eventual caso de que la hubiese solicitado. Frente a este panorama, la alternativa que elige la Comisión Especial es la que mejor se ajusta a las propias normas que están en el procedimiento especial por varias razones. En primer lugar, garantiza la continuidad del procedimiento parlamentario; de lo contrario, si acordaba suspender el procedimiento del proyecto de ley, la consecuencia de ello es que perdía la competencia para dictaminarlo ni adoptar ningún otro acto parlamentario. Y, finalmente, es la que más ajusta a lo dispuesto en la opinión consultiva n.° 004621-2012, que encontró un vicio de procedimiento en un proyecto de ley precisamente porque la comisión especial conoció mociones cuando ya le había vencido el plazo, es decir, cuando ya no tenía competencia. De ahí que, por las razones apuntadas, lo que corresponde es descartar que el vicio apuntado cause la inconstitucionalidad de la ley impugnada.

XVI.Redacta el Magistrado Castillo Víquez. Sobre la lesión alegada en relación con el momento de publicación de los textos sustitutivos del proyecto de ley del expediente número 19.922. Se alega la existencia de un vicio del procedimiento legislativo, en tanto se afirma que no se cumplió, debidamente, la obligación de publicar todos y cada uno de los textos que se fueron adjuntando y aprobando en el expediente legislativo No. 19.922, a pesar de que tal obligación fue sentada como una de las reglas del procedimiento especial aprobado el 30 de junio de 2016, conforme el artículo 208 bis (ahora 234 bis) del Reglamento de la Asamblea Legislativa. Se cuestiona, en particular, la presunta publicación tardía del cuarto texto sustitutivo, con las modificaciones que le fueron introducidas mediante una serie de mociones de orden y de reiteración, Sea, no se cuestiona una omisión absoluta en publicar tal texto, sino el que se haya publicado luego de votarse en primer debate, pero antes de aprobarse en segundo debate.

A juicio de Tribunal, respecto de este extremo en particular, tampoco se ha configurado una infracción esencial al procedimiento legislativo, por violación al principio de publicidad. Debe reiterarse, en primer lugar, que en este caso sí se realizó la mencionada publicación, pero se cuestiona una presunta publicación tardía o extemporánea de tal texto en cuestión. Por lo que debe recordarse que esta Sala ha admitido que no siempre, la falta de publicación, en un determinado momento procesal, constituye un vicio invalidante del procedimiento legislativo. Al respecto, este Tribunal ha indicado:

“La Sala no estima que esta circunstancia lesione el principio de publicidad, típico del procedimiento legislativo: este principio, en primer lugar, no se satisface por un acto único, como, por ejemplo, la publicación de la proposición, sino que se realiza en las diferentes fases del procedimiento, y en la propia publicidad a que están sometidos los trabajos de los órganos legislativos. Además, observa el tribunal que ya admitida la proposición (en el caso sobre el que versa esta opinión), y rendido el dictamen de la Comisión a que se refiere el inciso 3) del artículo 195, éste se publicó, como se estilaba. Por consiguiente, arriba la Sala a la conclusión de que la falta de publicación de la proposición de reforma constitucional de que aquí se trata, no configura un vicio que invalide el procedimiento”. (Véase el voto nro. 11560-2001).

En esta misma línea, en el citado voto nro. 2018-005758, esta Sala indicó que:

“Hay que tener presente que la publicidad no es un fin en sí mismo, tal y como lo ha sostenido este Tribunal en la opinión consultiva número 2018-003851, cuando estableció lo siguiente:

“Ciertamente, tal como se señaló en la sentencia N° 2006-009567, la omisión de publicación constituye un vicio esencial que invalida el trámite legislativo debido a su relevancia a los efectos del principio democrático. Ahora bien, a la luz de lo señalado en la sentencia N° 2013-008252, deviene necesario advertir que el principio de publicidad no es un fin en sí mismo, sino que su importancia radica en, por un lado, garantizar la transparencia, y, por otro, posibilitar la participación de los sujetos interesados. Como se dice en la sentencia N° 2013-008252 recién transcrita “…Tal cualidad potencia a nivel constitucional el propósito fundamental de la publicidad: promover la intervención de la ciudadanía en las decisiones fundamentales del Estado. Si este fin no resulta vulnerado y se advierte que no se ha dado una verdadera obstaculización a la participación popular, entonces un error en la publicación no puede llegar a configurar por sí solo un vicio esencial del procedimiento legislativo”. (El subrayado es agregado). Mutatis mutandis, si la publicación se realiza en un momento procesal diferente, deberá valorarse si ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento legislativo, a los efectos de determinar la existencia de un vicio sustancial en el procedimiento legislativo; de no ser ese el caso, no se estaría en presencia de un vicio de tal tipo”. (el destacado no corresponde al original) En cuyo caso, considera la Sala que en la especie, con la acusada publicación tardía o extemporánea del texto sustitutivo no ha ocurrido una verdadera obstaculización a la participación popular o se ha afectado gravemente la transparencia del procedimiento parlamentario, pues, como bien indica la Procuraduría General de la República, es “público y notorio que las organizaciones sindicales del Poder Judicial siguieron activamente todo el trámite legislativo que culminó con la aprobación de la ley n.° 9544, trámite al cual se le otorgó además una amplia cobertura periodísticas, por lo que no es posible afirmar que hubo alguna omisión grave en la publicidad del proyecto que pudiese justificar la anulación de dicha ley” (véase folio 14 del informe de la Procuraduría General de la República).

Adicionalmente respecto de lo anterior, expresan los accionantes que texto sustitutivo aprobado en la Comisión Especial el 27 de julio del 2017 tenía cambios sustanciales, por lo que era necesario su publicación de acuerdo con las reglas fijadas en el procedimiento especial según el numeral 208 bis -hoy 234 bis- del Reglamento de la Asamblea Legislativa. Ha sido tesis de principio de la Sala Constitucional, que quien invoca un quebranto de inconstitucionalidad, le corresponde la carga de argumentación. Lo anterior significa que no basta con invocar la inconstitucionalidad o expresar que hay vicio de inconstitucionalidad, sino que debe hacer un desarrollo lógico mínimo, explicando en qué consiste en el vicio. Al respecto, ha expresado este Tribunal en la sentencia n.° 0184-1995, lo siguiente:

“Este asunto ofrece un importante supuesto para el análisis de lo que podría denominarse "carga de la argumentación": una norma que facialmente sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad.” Más aún, en una sentencia posterior -004239-2014, se desarrolla de forma más amplia el tema de la carga de argumentación y el deber de los accionantes de demostrar la infracción acusada. En él se establece:

“IV.- Sobre la falta de concreción de los argumentos de inconstitucionalidad. La Ley de la Jurisdicción Constitucional, en su artículo 3, dispone que “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”. Ahora bien, para que este Tribunal tenga por configurada la infracción y declarar la inconstitucionalidad de la norma o acto impugnado, con la consecuente anulación y expulsión del ordenamiento jurídico, quien promueva una acción de inconstitucionalidad tiene la carga de demostrar cómo esa disposición infringe la norma o principio constitucional y, además, debe indicar por qué debe estimarse la demanda. Ello es denominado por esta Sala como la carga de la argumentación, es decir, que “una norma que facialmente sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad ” (véase sentencia número 0184-95 de las 16:30 horas del 10 de enero de 1995).

En una sentencia posterior, esta Sala expuso, en cuanto a la falta de concreción de los argumentos de inconstitucionalidad en materia de acciones de inconstitucionalidad, lo siguiente:

“La acción de inconstitucionalidad se interpone con el argumento de que el Decreto Ejecutivo impugnado es nocivo, lesiona e infringe los derechos fundamentales a un ambiente sano y ecológicamente equilibrado, el derecho a la salud y a los compromisos internacionales suscritos con el Protocolo de Kyoto. Pese a la oportunidad otorgada a los accionantes, se confirma lo que indica la Procuraduría General de la República, de que no existe un análisis concreto de las disposiciones del Decreto Ejecutivo impugnado que se consideran inconstitucionales, sino que el mismo se limita a establecer discrepancias de forma genérica y en abstracto contra la totalidad del Reglamento, más aún contra toda actividad que desempeñan los ingenios Azucareros y Haciendas, pues sostienen que causan inconvenientes en la calidad de vida y en la salud de los habitantes circunvecinos, sin concretar qué argumentos de constitucionalidad se deben tomar en cuenta en contra de cada una de las disposiciones o grupos del normas del Reglamento impugnado. […] El párrafo primero del artículo 78 de la Ley de la Jurisdicción Constitucional establece la obligación de autenticar los escritos de interposición de acciones de inconstitucionalidad, toda vez que se estima necesario que existan argumentos esgrimidos por un profesional en Derecho, que no descarta este Tribunal responda a un serio estudio del fondo técnico y científico de una determinada materia, dada la diversidad y universalidad de las normas del ordenamiento jurídico. A diferencia de los procesos de garantías, es decir, los recursos de hábeas corpus y de amparo, que los puede interponer directamente cualquier interesado ante la jurisdicción constitucional en defensa de sus derechos fundamentales, generalmente contra actos u omisiones que le lesionan en su esfera particular (aunque no siempre como en los casos ambientales), en los procesos de defensa de la Constitución Política (como la acción de inconstitucionalidad), el legislador confió al abogado autenticante una labor cuya exigencia es aún mayor, si se quiere más elaborada y exhaustiva que debe plasmar en el libelo de interposición en razón de su oficio profesional, para demostrar al Tribunal la lesión a la norma constitucional por parte de una norma de menor rango, socavando el principio de supremacía constitucional contenida en el artículo 10 de la Constitución Política. Precisamente la elaboración material y formal de la Ley, así como de las demás disposiciones secundarias, suponen un proceso sumamente costoso para el Estado, en la que de muchas maneras para su elaboración ha participado la sociedad civil organizada a favor o en contra, y cuyos procedimientos de formación, aprobación y promulgación no debe analizarse a la ligera. En este sentido, debe reconocer esta Sala que existe un reducido espacio para este Tribunal para socorrer las ausencias manifiestas de los profesionales en derecho que autentican los escritos en esta jurisdicción constitucional, sin exponer la imparcialidad y análisis que se debe a cada una de las acciones de inconstitucionalidad.” (Sentencia número 005285-2012 de 15.03 horas de 25 de abril de 2012).

En este caso, considera este Tribunal, que pese a la oportunidad otorgada al accionante, no existe un análisis concreto de las disposiciones del Decreto Ejecutivo impugnado que se consideran inconstitucionales, sino que se limita a establecer las discrepancias de forma genérica y en abstracto contra el Reglamento y la actividad que desempeñan los productores azucareros, las haciendas y las fincas del país -en especial las ubicadas en Cañas, Carrillo y Liberia, todas de las provincia de Guanacaste-, pues sostiene que causan problemas en la calidad de vida, salud de los habitantes y daños ambientales. Considera que debido a la actividad que realizan debería exigírseles un estudio de impacto ambiental, pues lo único que plantea el decreto impugnado -en su numeral 12- es la posibilidad de emitir un criterio técnico por parte de Sistema Nacional de Áreas de Conservación (SINAC) y estima que el plazo de diez días naturales establecidos para tales efectos resulta insuficiente; sin embargo, no establece cuáles son las razones técnicas para que la autoridad pública requiera de un plazo mayor al establecido en la norma. Por otra parte, se opone a la restricción que tienen el Ministerio de Salud y las municipalidades para suspender una quema que incumpla las condiciones y requisitos especificados en el permiso si, en forma conjunta, no interviene el Ministerio de Agricultura y Ganadería en los términos del artículo 19, del Decreto cuestionado. Por otra parte, se manifiesta en contra de que no existan estudios técnicos para establecer si las calderas de quemas de combustibles fósiles biomásicos exceden o no los niveles de emisión de calderas, en los términos dispuestos en Reglamento de Calderas. No obstante las consideraciones anteriores, las realiza sin que exista concreción en los argumentos de constitucionalidad que se deben tomar en cuenta en contra de cada una de las disposiciones o grupos de normas del Reglamento impugnado. Asimismo, los coadyuvantes activos Gad Amit Kaufman y Carolina Rugeles Quijano, tampoco aportan elementos adicionales que permitan establecer las razones jurídicas que fundamentan su posición respecto a la inconstitucionalidad del decreto de cita, pues se limitan a citar doctrina nacional e internacional, las leyes, los Tratados y Convenios Internacionales suscritos por Costa Rica y las sentencias dictadas por este Tribunal que consideran que el Reglamento en cuestión contradice, sin establecer un análisis exhaustivo para demostrar la lesión de la norma constitucional por parte del Decreto en cuestión de menor rango. Razón por la cual, al igual que los antecedentes parcialmente trascritos, considera esta Sala que no le es posible socorrer la ausencia manifiesta del profesional en derecho que autenticó la presente acción, sin exponer la imparcialidad y análisis que debe tener esta acción de inconstitucionalidad y, por ende, debe declararse sin lugar la presente acción de inconstitucionalidad”.

Finalmente, en lo relativo a la carga de argumentación y aplicado específicamente a un supuesto vicio del procedimiento legislativo, en el voto número 011499-2013, se expresa lo siguiente:

“VII.- Sobre los vicios del procedimiento. El accionante Guillermo Sanabria Ramírez, en su condición de representante de la Asociación Cámara Patentados de Costa Rica, acusa que durante el procedimiento legislativo de aprobación de la Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico, Nº 9047, se incurrió en vicios formales que invalidan dicha ley. En primer lugar, alega que el entonces proyecto de ley fue modificado sustancialmente por medio de la aprobación de mociones de fondo, vía artículo 137 del Reglamento de la Asamblea Legislativa, las cuales no fueron publicadas oportunamente, de manera que se quebrantó el principio de publicidad. En segundo lugar, y en concordancia con lo anterior, sostiene que el texto original publicado es distinto a la ley aprobada, por lo que se dio un exceso en el derecho de enmienda sin una publicación final que concuerde con lo que finalmente se aprobó. Por su parte, el accionante Gerardo Darío Schreiber también estima que se produjeron violaciones en el procedimiento de aprobación de la ley Nº 9047, al haberse realizado cambios sustanciales al proyecto de ley que no fueron publicados.

En cuanto a este agravio, la Procuraduría es del criterio que los accionantes omitieron indicar y precisar las lesiones a derechos constitucionales que produce los actos que alegan como no publicados; es decir, no puntualizaron cuál es la afectación que produjo la no publicación de los dictámenes que señalan, así como cada una de las mociones que se invocan. La Procuraduría aclara que el entonces proyecto de ley tramitado en el expediente legislativo Nº 17.410 (Ley Reguladora de Bebidas con contenido alcohólico) fue debidamente publicado, tanto su texto base, en La Gaceta Nº 145, Alcance Nº 31, del 28 de julio de 2009, como el sustitutivo que los accionantes acusan como no publicado, publicación que se realizó en el Diario La Gaceta Nº 6 del 11 de enero de 2010. Además, en cuanto a la no publicación de un segundo Dictamen de Comisión, vía 154 del Reglamento, que según el criterio de los accionantes introdujo cambios sustanciales en el proyecto luego de revisado el dictamen que se tacha como no publicado y el texto sustitutivo, la Procuraduría no apreció diferencias de carácter sustancial que hicieran indispensable tal publicación. El órgano asesor explica que en cuanto a las mociones enunciadas por los accionantes, estas no representan cambios sustanciales en el proyecto de ley en mención, que desde su texto original y luego mediante el sustitutivo plantearon regulación expresa sobre los puntos señalados. Aduce la Procuraduría que el conjunto de mociones, así como la emisión de los dictámenes que se reprochan como no publicados, se dieron con fecha anterior a la remisión del proyecto a consulta a esta misma Sala Constitucional, y que con motivo de lo resuelto en esa oportunidad (sentencia número 2012-2675), el proyecto fue nuevamente modificado conforme a las observaciones de esta Sala. El texto modificado, con base en las enmiendas realizadas a la luz de lo resuelto por este Tribunal, fue debidamente publicado en La Gaceta Nº 95 del 17 de mayo de 2012, por lo que no se advierte vicio alguno que atente contra el principio de publicidad que se alega violentado.

Ahora bien, en cuanto a este único vicio procedimental aducido por la parte accionante (falta de publicación), estima la Sala que lleva razón la Procuraduría General de la República en cada una de sus apreciaciones y, por ende, procede la desestimatoria de la acción en cuanto a este agravio. Como lo ha sostenido este Tribunal, el reconocimiento del principio de publicidad como elemento sustancial del procedimiento legislativo ha sido una constante en la jurisprudencia constitucional (ver, entre otras, sentencia número 2006-009567 del 05 de julio de 2006). Este principio garantiza un amplio debate que facilita el contacto tanto con la opinión pública en general y como con quienes, en particular, pudieran tener interés (en razón de sus actividades económicas) en conocer y hasta participar en la deliberación del asunto. Asimismo, la publicidad de los procedimientos parlamentarios resulta esencial dado el carácter representativo de la comunidad nacional que ostenta la Asamblea Legislativa, toda vez que la soberanía reside en el pueblo y los diputados solamente son sus representantes, según lo dispone el artículo 105 constitucional (ver sentencia número 2000-03220 de las 10:30 horas del 18 de abril de 2000).

Como bien lo afirmó la Sala en la sentencia número 2000-03220 de cita, al legislador le asiste la posibilidad de introducir modificaciones y variaciones al proyecto original a través del ejercicio de su derecho de enmienda. En cuanto a tales cambios, la jurisprudencia constitucional ha diferenciado entre las enmiendas que requieren nueva publicación y las que no; ello dependerá de si tal cambio constituye una modificación sustancial o no del proyecto de ley original. Véase lo indicado por este Tribunal en la aludida sentencia número 2000-03220: “El artículo 101 de la Ley de la Jurisdicción Constitucional no determina con claridad cuáles vicios en el procedimiento de formación de las leyes, en caso de ser detectados, producen invalidez desde el punto de vista constitucional. Para definirlo, resulta necesario relacionar esta disposición con la norma contenida en el inciso c) del numeral 73 de la Ley que rige esta Jurisdicción, que prevé que – en acciones de inconstitucionalidad - y en principio, en el trámite de la ley ordinaria, 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. De lo anterior deriva la necesidad de que sea la propia Sala Constitucional, en cada caso particular, la que se encargue de establecer cuáles requisitos o trámites resultan "esenciales", al punto de invalidar el procedimiento para la elaboración de una determinada norma debido a su incumplimiento, ya que es claro que la lectura de la disposición en sentido contrario, conduce a la conclusión de que no toda violación al procedimiento, para la elaboración de la Ley formal, constituye un defecto sustancial, y claro está, con consecuencias respecto de la constitucionalidad de la misma (…)”. De este modo, existirá un vicio esencial del procedimiento legislativo -contrario al principio de publicidad- cuando se omita la nueva publicación del proyecto de ley en aquellos casos en que la enmienda o enmiendas efectuadas provoquen una modificación sustancial del texto original (ver en idéntico sentido, sentencia número 2012-004621 de las 16:00 horas del 10 de abril de 2012, entre otras).

En el sub iudice, aprecia este Tribunal que el texto publicado en La Gaceta Nº 145, Alcance Nº 31, del 28 de julio de 2009 es el proyecto originalmente presentado por el entonces Diputado Oscar Núñez Calvo, relativo al expediente legislativo Nº 17.410, donde en aquel momento se tramitaba el entonces proyecto de ley “Ley Reguladora de Bebidas con contenido alcohólico”. Posteriormente, el texto sustitutivo también fue puesto en conocimiento de la ciudadanía en general, esto mediante publicación en el Diario La Gaceta Nº 6 del 11 de enero de 2010 (véase sitio web La Gaceta Digital). En ese mismo orden de ideas, como lo expone la Procuraduría, las mociones aludidas por los accionantes así como la emisión de los dictámenes que se reprochan como no publicados, se dieron con anterioridad a la remisión del proyecto a consulta facultativa a esta misma Sala Constitucional, proyecto que con motivo de lo resuelto en esa oportunidad (sentencia número 2012-2675) fue nuevamente modificado conforme a las observaciones realizadas por esta Sala. Este texto modificado fue debidamente publicado en La Gaceta Nº 95, Alcance Digital Nº 63 del 17 de mayo de 2012 (véase sitio web La Gaceta Digital), por lo que efectivamente no se advierte vicio alguno que atente contra el principio de publicidad que se alega violentado, ya que el proyecto de ley fue debidamente publicado en su versión modificada y final.

Así las cosas, vemos como -en al menos tres oportunidades diferentes- el texto del proyecto de ley en cuestión fue publicado en el Diario Oficial La Gaceta a fin de dar publicidad al texto base así como a los cambios suscitados a lo largo del iter legislativo luego que esta Sala se pronunciara respecto al proyecto de ley en la consulta facultativa interpuesta. La publicación más importante, sin lugar a dudas, es la del 17 de mayo de 2012, toda vez que el texto publicado en ese momento contenía cada una de las modificaciones efectuadas por los legisladores a la luz de lo señalado por este Tribunal en la consulta facultativa, amén de los cambios realizados con anterioridad al mismo proyecto. Ergo, con esta tercera y última publicación del entonces proyecto de ley se subsanó cualquier otra deficiencia que hubiese podido existir en las fases previas del procedimiento parlamentario, sobre todo considerando que de la comparación entre el texto publicado en esta última oportunidad (17 de mayo de 2012) y el definitivo que salió publicado como Ley de la República en La Gaceta Nº 152 del 08 de agosto de 2012, se tiene que ambos textos guardan absoluta coherencia y similitud en sus postulados normativos más importantes.

En todo caso, la Sala también coincide con el criterio de la Procuraduría General de la República, en el sentido de que los accionantes Sanabria Ramírez y Darío Schreiber no fundamentaron en modo alguno cuál es el perjuicio o agravio que les produjo la falta de publicación de los cambios efectuados al texto original. En el caso del accionante Sanabria Ramírez, este Tribunal aprecia que solamente se limitó a transcribir el texto original de algunas normas del proyecto de ley y, de seguido a cada artículo, la redacción que en su opinión había sido modificada en el nuevo texto sustitutivo; sin embargo, no justificó ni motivó porqué era necesaria la publicación en cada uno de esos cambios. Por su parte, el accionante Darío Schreiber tampoco profundizó en los fundamentos y motivaciones que esta Sala extraña al momento de exponer el agravio de falta de publicación. Lo expuesto nos lleva a concluir que, en la especie, se confirma lo que indica la Procuraduría General de la República, en el sentido de que no existe un análisis concreto de las razones por las cuales se estima que se debían publicar cada uno de los cambios y modificaciones efectuadas al proyecto, o al menos, las más relevantes. En este agravio, ambos accionantes se limitan a esbozar discrepancias de forma genérica y abstracta contra las publicaciones que, en su criterio, debieron darse durante el trámite legislativo, mas no se motiva el porqué de que tales publicaciones fueran necesarias.

Como se dijo en la sentencia número 2012-002675 de las 11:52 horas del 24 de febrero de 2012 (que resolvió la Consulta Facultativa de Constitucionalidad planteada respecto al entonces proyecto de ley “Ley para la regulación y comercialización de bebidas con contenido alcohólico”), existe reiterada jurisprudencia de este Tribunal en el sentido de que este órgano se pronuncia solo sobre lo expresamente consultado y motivado, pero no en abstracto. Verbigracia, en el reciente voto número 2013-000992 de las 14:30 horas del 23 de enero de 2013, esta Sala explicó lo siguiente:

“Sobre la falta de concreción de los argumentos de inconstitucionalidad. En particular sobre la exposición de los fundamentos en forma clara y precisa -artículo 78 de la Ley de la Jurisdicción Constitucional- la Sala ha señalado que: “El párrafo primero del artículo 78 de la Ley de la Jurisdicción Constitucional establece la obligación de autenticar los escritos de interposición de acciones de inconstitucionalidad, toda vez que se estima necesario que existan argumentos esgrimidos por un profesional en Derecho, que no descarta este Tribunal responda a un serio estudio del fondo técnico y científico de una determinada materia, dada la diversidad y universalidad de las normas del ordenamiento jurídico. A diferencia de los procesos de garantías, es decir, los recursos de hábeas corpus y de amparo, que los puede interponer directamente cualquier interesado ante la jurisdicción constitucional en defensa de sus derechos fundamentales (…) en los procesos de defensa de la Constitución Política (como la acción de inconstitucionalidad), el legislador confió al abogado que autentica una labor cuya exigencia es aún mayor, si se quiere más elaborada y exhaustiva que debe plasmar en el libelo de interposición en razón de su oficio profesional, para demostrar al Tribunal la lesión a la norma constitucional por parte de una norma de menor rango, socavando el principio de supremacía constitucional contenida en el artículo 10 de la Constitución Política. Precisamente, la elaboración material y formal de la Ley, así como de las demás disposiciones secundarias, suponen un proceso sumamente costoso para el Estado, en la que de muchas maneras para su elaboración ha participado la sociedad civil organizada a favor o en contra, y cuyos procedimientos de formación, aprobación y promulgación no debe analizarse a la ligera. En este sentido, debe reconocer esta Sala que existe un reducido espacio para este Tribunal para socorrer las ausencias manifiestas de los profesionales en derecho que autentican los escritos en esta jurisdicción constitucional, sin exponer la imparcialidad y análisis que se debe a cada una de las acciones de inconstitucionalidad” (lo subrayado no corresponde al original) En ese mismo orden de ideas, los antecedentes de la Sala se han pronunciado sobre lo que podría denominarse "carga de la argumentación": una norma que facialmente sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad ” (véase sentencia número 0184-95 de las 16:30 horas del 10 de enero de 1995).

Conforme a este orden de ideas, no queda más que desestimar este único agravio por la forma que han planteado los accionantes Sanabria Ramírez y Darío Schreiber, primero debido a que sí hubo una adecuada y oportuna publicación de los diferentes textos previos a la aprobación de la Ley Nº 9047 y, segundo, porque aunque se hubiera evidenciado una falta de publicación de algún texto relevante, la parte promovente no expuso los fundamentos por los cuales consideraba indispensable publicar las modificaciones de su interés. En consecuencia, se declara sin lugar la acción en cuanto a este extremo”.

En el sub lite, después de analizar una a una las acciones de inconstitucionalidad incoadas, se consta que no se cumplen con las exigencias de este Tribunal, a manera de ejemplo: la accionante Campos expresa, a lo sumo, que se introduce un elemento novedoso, como es la creación de la Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial en apoyo a su tesis de que era necesario la consulta a la Corte Suprema de Justicia de conformidad con el numeral 167 de la Carta Fundamental. La coadyuvante activa Monge Molina se limita a expresar que el texto aprobado en la Comisión Especial el 27 de julio del 2017 tenía cambios sustanciales, tales como: aporte obrero, edad de retiro, años de servicio, funciones sustraídas al Consejo Superior, disposiciones transitorias, sin hacer una argumentación en qué consistían esos cambios.

Como puede observarse, sin necesidad de mucho esfuerzo, los accionantes no dan argumentos mínimos para que se acoja el agravio, por lo que, siguiendo los precedentes de este Tribunal, el agravio sobre este extremo debe ser rechazado.

XVII.- Redacta la Magistrada Hernández López. Sobre la obligación establecida en el artículo 167 de la Constitución Política. En criterio de los accionantes, el proyecto de ley que se tramitó bajo el expediente número. 19.922, no fue debidamente consultado al Poder Judicial según lo dispone el artículo 167 de la Constitución Política, pese a que, en su criterio, afecta o modifica la organización administrativa del Poder Judicial, lo cual va a producir efectos directos en el servicio de la administración de justicia que presta, así como en la independencia que constitucionalmente se garantiza a ese poder y a los jueces encargados de impartir justicia. Para iniciar el análisis de este punto, es necesario partir de lo que establece el artículo 167 de la Constitución Política:

“ARTÍCULO 167.- Para la discusión y aprobación de proyectos de ley que se refieran a la organización o funcionamiento del Poder Judicial, deberá la Asamblea Legislativa consultar a la Corte Suprema de Justicia; para apartarse del criterio de ésta, se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea” De ese numeral, a los efectos de esta acción de inconstitucionalidad, interesa la frase “organización y funcionamiento del Poder Judicial” toda vez que es labor de la Sala Constitucional, en este contexto, desentrañar su contenido a fin de verificar sus alcances y si éstos motivan o no la obligatoriedad para la Asamblea Legislativa de efectuar esa consulta en relación con la materia objeto del expediente legislativo 19.922 y que finalmente dio origen a la emisión de la Ley 9544 que modificó lo relativo al Régimen de Jubilaciones y Pensiones del Poder Judicial. El tema no ha sido pacífico pero la mayoría de la Sala ha sido conteste al establecer que el concepto de “organización y funcionamiento” al que hace referencia el artículo de cita, versa sobre aspectos relativos a la función jurisdiccional del Poder Judicial, estimándose que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado, normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas, debiendo tomarse en consideración que la norma constitucional de comentario armoniza dos aspectos de carácter fundamental, por una parte la independencia del Poder Judicial y, por otra, el ejercicio de la libertad de configuración o conformación del legislador, la cual no tiene otro límite que el Derecho de la Constitución. Además de lo anterior, definitivamente del artículo 167 de la Constitución Política, se desprenden dos grandes líneas de trabajo del Poder Judicial: por un lado, todo lo relativo a su organización y funcionamiento en su función esencial que es la jurisdiccional y la administración de justicia, pero por otro lado también, y no menos importante, todo lo que tiene que ver con su organización y funcionamiento desde el punto de vista administrativo. Definitivamente el Poder Judicial desempeña ambas atribuciones en los dos ámbitos y precisamente por ello su función no debe ser clasificada como únicamente jurisdiccional pues para realizar ésta, indiscutiblemente debe realizar trabajo administrativo que tiene que ver con todo lo relacionado a su situación presupuestaria, al manejo de sus recursos humanos y materiales, al clima organizacional, a la rotación de personal, entre otros aspectos que no son propiamente función de administración de justicia, pero que sientan las bases para que ésta se pueda realizar. Desde esta perspectiva entonces, y en relación con la consulta que efectuaron a este Tribunal los diputados y diputadas en noviembre de 2017 respecto del proyecto de ley contenido en el expediente legislativo 19.922, interesa mencionar que en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, en la que se conoció aquella consulta legislativa facultativa, esta Sala indicó:

“(…) este Tribunal considera que la materia sobre la que versa el expediente legislativo número 19.922 no se encuentra dentro de los supuestos fijados por el artículo 167 de la Constitución Política y, por ende, no existía la obligación de realizar una consulta a la Corte Suprema de Justicia. En ese sentido, se establece que, si bien el proyecto cuestionado crea un órgano adscrito al Poder Judicial como es la Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial, el cual asume las funciones que anteriormente le estaban otorgadas al Consejo Superior del Poder Judicial, lo cierto es que dichos elementos se refieren a extremos que son propios del Fondo de Jubilaciones y Pensiones del Poder Judicial, sea funciones típicamente administrativas y que no tienen incidencia, al menos directamente, sobre la función jurisdiccional del Poder Judicial, que es, precisamente, lo que protege el numeral 167 constitucional. No estamos, pues, ante la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas. Nótese que el nuevo órgano –la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial- forma parte de la estructura del Poder Judicial, cuya funciones son típicamente administrativas, sea la administración del citado Fondo, lo que no es subsumible en la exigencia constitucional de modificaciones a la organización y el funcionamiento de la Corte Suprema de Justica que atañen a su función típica, exclusiva, sea la jurisdiccional y aquellas administrativas esenciales que dan soporte a su función primaria. En todo caso y sin demérito de lo anterior, es necesario mencionar que en el folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017 por la Comisión Especial, mediante oficio número AL -20035-OFI-0043-2017 del 31 de julio de 2017, la jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, procediendo la Corte Suprema de Justicia a emitir su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según se comprueba del estudio de los folios 2759 a 2807 del expediente legislativo. En ese sentido, es claro entonces que el Poder Judicial sí pudo emitir su opinión con respecto al texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, incluso antes de que éste fuera conocido por el Plenario. En virtud de lo expuesto, la Sala considera que no se presenta el vicio acusado por los(as) consultantes”.

XVIII.- Redacta la Magistrada Hernández López. Sobre la Consulta al Poder Judicial del Proyecto de Ley contenido en el expediente legislativo 19.922. En el Reglamento de la Asamblea Legislativa, existen dos numerales que deben ser mencionados cuando se cita el artículo 167 de la Constitución Política toda vez que son los que establecen el procedimiento a seguir para realizar la consulta a la que se refiere el numeral constitucional. En ese sentido, dispone el artículo 126 del Reglamento de la Asamblea Legislativa, lo siguiente:

“ARTICULO 126.- Consultas constitucionales obligatorias Cuando en el seno de una comisión se discuta un proyecto o se apruebe una moción que, de acuerdo con los artículos 88, 97, 167 y 190 de la Constitución Política, deban ser consultados la consulta respectiva la efectuará el Presidente. Las consultas de las comisiones se considerarán como hechas por la propia Asamblea y, en lo pertinente, se aplicará lo dispuesto en el artículo 157 de este Reglamento”.

Por su parte, ese artículo 157 citado, establece lo siguiente:

“ARTICULO 157.- Consultas institucionales Cuando en la discusión de un proyecto la Asamblea determine que debe ser consultado el Tribunal Supremo de Elecciones, la Universidad de Costa Rica, el Poder Judicial o una institución autónoma, y no lo hubiera hecho la Comisión, se suspenderá el conocimiento del proyecto, procediéndose a hacer la consulta correspondiente. Si transcurridos ocho días hábiles no se recibiere respuesta a la consulta a que se refiere este artículo, se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto. En caso de que el organismo consultado, dentro del término dicho, hiciera observaciones al proyecto, éste pasará automáticamente a la comisión respectiva, si la Asamblea aceptara dichas observaciones. Si ésta las desechare, respetando lo que determina la Constitución Política, el asunto continuará su trámite ordinario”.

Del expediente legislativo 19.922 se desprende que la Comisión Especial Encargada de Conocer y Dictaminar el Proyecto de Ley “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922”, en sesión ordinaria No. 01 del 13 de septiembre de 2016, aprobó por unanimidad una moción de orden para que el texto fuera consultado a la Corte Suprema de Justicia (folios 168 y 169 del Tomo 1 del expediente legislativo No. 19.922). Mediante oficio CE208-BI-02-2016 de 14 de septiembre de 2016, la Jefa de Área a.í. de la Comisión de Asuntos Jurídicos de la Asamblea Legislativa y con instrucciones del Presidente de la Comisión Especial citada, planteó consulta dirigida a la Presidenta de la Corte Suprema de Justicia sobre el texto sustitutivo del expediente No. 19.922 (folio 172 del Tomo 1 del expediente legislativo). Por su parte, el proyecto de ley de cita se trasladó a estudio de los Magistrados de la Corte Suprema de Justicia y el informe rendido se conoció en la sesión de Corte Plena No. 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado, incide en la organización y funcionamiento del Poder Judicial (folio 284 Tomo 2 del expediente legislativo). Posteriormente, en Sesión ordinaria No. 15 del 29 de marzo de 2017, la Comisión Especial Encargada de Conocer y Dictaminar el Proyecto de Ley “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo No. 19.922”, aprueba un tercer texto sustitutivo y el Presidente de esa Comisión Especial, gira instrucciones para que se realice consulta, por lo cual, mediante oficio AL-20035-OFI-0029-2017 de 17 de abril de 2017, la Jefa de la Comisión de Asuntos Jurídicos de la Asamblea Legislativa, remite a la Presidenta de la Corte Suprema de Justicia, consulta del texto sustitutivo aprobado en la sesión del 29 de marzo de 2017 (folio 1757 del Tomo 8 del expediente legislativo). Por su parte, la Corte Plena en sesión No. 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017 suscrito por la Secretaria General de la Corte Suprema de Justicia, acordó hacer del conocimiento de la Comisión Especial Legislativa que Corte Plena emitió criterio negativo al proyecto de ley consultado, a la vez que estimó que incide en la organización y funcionamiento del Poder Judicial (folio 1829 Tomo 8 del expediente legislativo). Aunado a lo dicho, se desprende del expediente legislativo No. 19.922 que el 27 de julio de 2017, los Diputados de la Comisión Especial presentan un nuevo texto sustitutivo que, en sesión extraordinaria No. 23 de esa fecha -27 de julio de 2017-, se aprueba y se dictamina con 8 diputados a favor y 1 en contra (folio 2449 del Tomo 10 del expediente legislativo); aprobándose además mociones para hacer varias consultas, entre ellas a la Corte Suprema de Justicia, la que se planteó mediante oficio AL-20035-OFI-0043-2017 de 31 de julio de 2017 en el cual la Jefa de la Comisión de Asuntos Jurídicos de la Asamblea Legislativa, remitió al Presidente de la Corte Suprema de Justicia, consulta sobre el Dictamen Afirmativo de Mayoría aprobado en aquélla Comisión el 27 de julio de 2017 (folio 2625 del Tomo 11 del expediente legislativo). Por su parte, la Corte Plena en sesión 26-17 de 7 de agosto de 2017, artículo XXX, conoció la consulta planteada por la Comisión Especial de cita sobre el Dictamen Afirmativo de Mayoría y, por tercera vez, emitió criterio negativo respecto proyecto e indicando que el proyecto de ley tramitado bajo expediente No. 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017 (folio 2759 del Tomo 12 del expediente legislativo). A partir de lo anterior, independientemente de que algunos de los accionantes consideren que la Corte Suprema de Justicia no ha sido formalmente consultada sobre el contenido del proyecto de ley que se tramitó en el expediente legislativo No. 19.922, lo cierto del caso es que, en criterio de este Tribunal, la Corte Suprema sí fue consultada en 3 ocasiones y sí pudo emitir su opinión en esas 3 oportunidades, indicándose en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, lo siguiente:

“(…) es necesario mencionar que en el folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017 por la Comisión Especial, mediante oficio número AL -20035-OFI-0043-2017 del 31 de julio de 2017, la jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, procediendo la Corte Suprema de Justicia a emitir su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según se comprueba del estudio de los folios 2759 a 2807 del expediente legislativo. En ese sentido, es claro entonces que el Poder Judicial sí pudo emitir su opinión con respecto al texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, incluso antes de que éste fuera conocido por el Plenario. En virtud de lo expuesto, la Sala considera que no se presenta el vicio acusado por los(as) consultantes”.

Ciertamente, la Sala ha considerado que la Corte Suprema de Justicia pudo emitir su criterio y, a partir del estudio del expediente legislativo, ha quedado debidamente acreditado que la Comisión de Asuntos Jurídicos remitió 3 oficios mediante los cuales se hizo consulta a la Corte Suprema de Justicia: 1) oficio CE208-BI-02-2016 de 14 de septiembre de 2016 (folios 169 y 172 del Tomo 1); 2) oficio AL-20035-OFI-0029-2017 de 17 de abril de 2017 (folio 1757 del Tomo 8); y 3) oficio AL-20035-OFI-0043-2017 de 31 de julio de 2017 (folio 2625 del Tomo 11). Ahora bien, en lo que a esta acción de inconstitucionalidad se refiere, superado el cuestionamiento en cuanto a si se efectuó la consulta porque la respuesta es más que evidente en cuanto a que sí se hizo, la siguiente pretensión de los accionantes es que esta Sala entre a analizar lo relativo a la respuesta brindada por la Corte Suprema de Justicia a la Asamblea Legislativa, específicamente en cuanto al criterio negativo emitido por ese Poder de la República y las consecuencias derivadas de esa opinión, ello por cuanto consideran que la Ley 9544 aquí impugnada, adolece de un vicio de procedimiento legislativo que debe ser analizado por la vía del control de constitucionalidad posterior. Recuérdese que en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 mediante la cual se conoció la Consulta Legislativa Facultativa interpuesta en relación con el expediente legislativo No. 19.922, la Sala hizo un control de constitucionalidad previo y emitió una opinión referida a la validez constitucional de un proyecto que, para ese momento, aún estaba pendiente de aprobación definitiva; pronunciamiento cuyo objeto fue realizar dentro del marco constitucional y reglamentario, únicamente un análisis de los temas consultados en relación con el procedimiento legislativo que se estaba llevando a cabo a esa fecha de la consulta.

XIX.- Redacta la Magistrada Hernández López. Sobre el criterio negativo emitido por la Corte Suprema de Justicia en relación con el expediente legislativo No. 19.922.- Según lo afirman los accionantes y así ha quedado acreditado a partir del estudio del expediente legislativo No. 19.922, la Corte Suprema de Justicia emitió 3 respuestas a las consultas que se le plantearon en relación con el proyecto de ley y en las 3 ocasiones vertió criterio negativo, indicando las 3 veces que se oponía por cuanto se afectaba la “organización y funcionamiento” del Poder Judicial toda vez que el proyecto pretendía la creación de una Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, como un órgano del Poder Judicial que contaría con completa independencia funcional, técnica y administrativa para ejercer las facultades y atribuciones que le otorga la ley, a la cual se le otorgarían las funciones y potestades que, en el momento de emitirse el criterio, eran competencias de la Corte Plena y el Consejo Superior, señalando además que esa Junta contaría con personalidad jurídica instrumental para ejercer las atribuciones que la Ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo. Dentro de la tesis de la Corte Plena, se afirmó que esa regulación relativa a la Junta Administrativa, afectaría la organización y funcionamiento del Poder Judicial ya que eliminaría la competencia del Consejo Superior en cuanto a las potestades técnicas, funcionales y de administración del Fondo de Jubilaciones y Pensiones y se las trasladaría a la Junta Administrativa. Además, señaló la Corte que repercutiría en la organización y funcionamiento en cuanto suprimiría la potestad de Gobierno que poseía la Corte Plena en cuanto a la definición de la política de inversión y reglamentación del Fondo. Manifestó el representante de la Corte Suprema de Justicia que con esta reforma se establecía una Junta como un órgano de desconcentración máxima con presupuesto propio, lo que implicaría que toda la inversión que hasta esa fecha había realizado el Poder Judicial en personal especializado y en el desarrollo de un sistema informático que sirve de base para la operación del Fondo, se desaprovecharía. Agregó la Corte Suprema que si bien se entiende la idea de especializar las personas que administren el Fondo y que éstas puedan contar con toda la independencia y objetividad que el mandato requiere, ese órgano colegiado estimaba que eso se puede lograr con una desconcentración mínima, advirtiéndose que con esa figura no se permite que el superior se avoque los actos administrativos relativos al Fondo, ni tampoco podría revisarse o sustituirse la conducta de la Junta Administradora. Igualmente, la Corte Plena advirtió que esa Junta estaría sustraída de órdenes, instrucciones o circulares, es decir, contaría con total independencia del Poder Judicial. Aunado a lo anterior, la Corte Plena argumentó que el proyecto tiene que ver con la estructura y funcionamiento del Poder Judicial debido a que se va a afectar la renovación del personal debido a que se contaría con personas funcionarias de edad avanzada que se mantendrán laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse, toda vez que se incide directamente el proyecto de vida de todas las personas servidoras judiciales ya que el proyecto significa una disminución de la jubilación, aún y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Argumentó la Corte Suprema de Justicia que la población judicial estaría ante una encrucijada pues si bien se tiene el deseo de optar por el derecho y la motivación de retirarse a descansar, también es lo cierto que se vería colocada en una condición en la cual deberá valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la jubilación, y los naturales por razones propias de la edad; proceso que también tiene sus restricciones pues la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los 40 años, se tienen limitaciones fácticas en cuanto a la reincorporación laboral. Manifestó la Corte Plena que el proyecto tiene gran relación con la estructura y funcionamiento ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia; el salario de los puestos se verá disminuido por el aporte al régimen de pensiones y jubilaciones que es 4 veces mayor que la contribución de otros regímenes, lo que dificulta la captación del recurso humano y se ve perjudicado el servicio público. Con sustento en estos argumentos, visibles todos en el expediente legislativo, la Corte Suprema de Justicia comunicó a la Asamblea Legislativa su criterio negativo y oposición al proyecto que se tramitaba en el expediente legislativo No. 19.922; criterio que también fue expuesto de manera verbal ante la Comisión Especial encargada de tramitar el proyecto de ley en las diferentes audiencias otorgadas a la Corte Suprema de Justicia y a las que acudieron diferentes representantes del Poder Judicial.

XX.Redacta el Magistrado Castillo Víquez. Sobre la organización y funcionamiento del Poder Judicial en relación con la Personalidad Jurídica Instrumental de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial.- En relación con lo que se viene analizando en los 3 considerandos anteriores, los accionantes también afirman que la creación de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, afecta la organización y funcionamiento del Poder Judicial, por lo que piden a la Sala que así se declare. En aras de analizar este alegato, debe partirse del contenido del artículo 239, el cual dispone:

“Artículo 239.- Se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley” (Así reformado por el artículo 1° de la ley N° 9544 del 24 de abril de 2018).

Entonces, según se desprende del artículo 239 de la Ley 9544 citado, éste creó la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial que contará con completa independencia funcional, técnica y administrativa para ejercer las facultades y atribuciones que le otorga la ley, siendo que esa Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo. Debe indicarse que, sobre el tema, la Sala ha aceptado como constitucionalmente correcta la figura de la personería jurídica instrumental -órgano persona-, entendiéndose que no se trata de atribuir una competencia en forma exclusiva a un órgano inferior con perjuicio de la competencia del órgano superior jerárquico, sino más bien de atribuir esa competencia a una persona jurídica nueva que se crea y que estará, según se desprende de sus funciones y conformación jurídica, adscrita a un órgano superior que, en el caso concreto sería el Poder Judicial. En ese sentido, la Sala ha entendido entonces que un órgano desconcentrado en el grado máximo con personalidad jurídica instrumental, en realidad se trata de un órgano persona en estricto sentido jurídico del concepto (ver en ese sentido sentencia No. 4681-97 de las 14 horas 42 minutos del 14 de agosto de 1997, 2004-08474 de las 15 horas 11 minutos del 4 de agosto del 2004 y 2005-015716 de las 14 horas 55 minutos del 16 de noviembre de 2005, entre otras). Igualmente, este Tribunal ha señalado que resulta válido, a la luz del Derecho de la Constitución, conferir a un órgano desconcentrado personalidad jurídica instrumental para efectos de manejar su propio presupuesto y así llevar a cabo, en forma más eficiente, la función pública que está llamado a desempeñar. Precisamente esa personificación presupuestaria le permite administrar sus recursos con independencia del Presupuesto del ente público al que pertenece aún cuando continúa subordinado a éste en todos los aspectos no propios de la función que le fue dada por desconcentración y de los derivados de su personalidad jurídica instrumental (ver en ese sentido sentencia No. 2001-11657 de las 14 horas 43 minutos del 14 de noviembre del 2001).

Obsérvese que en este aspecto los accionantes alegan que, a pesar de que la Corte Suprema de Justicia vertió un criterio negativo en cuanto al proyecto de ley tramitado en el expediente legislativo 19.922, y de que definitivamente había incidencia sobre la organización y funcionamiento del Poder Judicial, la Asamblea Legislativa continuó con el trámite del expediente, omitiendo tomar en cuenta que la consecuencia de aquélla posición externada por el Poder Judicial implicaba necesariamente que el proyecto debía de ser aprobado con mayoría calificada. En la opinión consultiva n.° 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, expresamos lo siguiente:

“III. DE LA CONSULTA OBLIGADA A LA CORTE SUPREMA DE JUSTICIA. Se acusa que la Ley Marco de Pensiones fue tramitada y aprobada por la Asamblea Legislativa sin que se hiciera la consulta obligada a la Corte Suprema de Justicia y a la Caja Costarricense de Seguro Social, de conformidad con lo dispuesto en los artículos 167 y 190 de la Constitución Política. La alegada violación de procedimiento por no haberse consultado a la primera ya fue del conocimiento de esta Sala en sentencia número 0846-92, de las trece horas treinta minutos del veintisiete de marzo de mil novecientos noventa y dos; en que se señaló el carácter innecesario de la consulta por cuanto la Ley de referencia no afecta en absoluto a los servidores judiciales:

"Al respecto, carece de interés pronunciarse sobre la obligada consulta a la Corte, toda vez que ésta, con motivo de la evacuada sobre el proyecto de Ley Orgánica del Poder Judicial, acogió la modificación de la edad de jubilación de sus servidores a los sesenta años, como lo indica el proyecto; y con norma similar y sin perjuicio de reservas similares para garantizar los derechos adquiridos de buena fe." Además dicha consulta resulta obligatoria únicamente entratándose de la "organización y funcionamiento" del Poder Judicial, funcionamiento que está referido a la función jurisdiccional, teniendo como objetivo garantizar la independencia del Poder Judicial; éste trámite no se refiere al otorgamiento de beneficios para los servidores judiciales, como es la materia en estudio, por lo que la consulta resulta innecesaria.” “En cuanto al segundo argumento, la Sala considera que el régimen de pensiones de los servidores judiciales aquí impugnado, no modifica el régimen jurídico por el que la Corte Suprema de Justicia imparte justicia, ni reordena el número o las competencias de los tribunales existentes. No puede tampoco alegarse contra la norma un efecto apenas indirecto, que sería causado por un cambio en el presupuesto general del Poder Judicial, que a su vez podría incidir sobre la función jurisdiccional. El efecto de segundo grado como sería éste, no es un criterio de importancia constitucional suficiente como para invalidar un acto del Poder Legislativo”.

Cabe agregar que para determinar si, como se afirma, el Fondo de Pensiones del Poder Judicial es parte de su estructura y funcionamiento y por lo tanto de la protección de su independencia funcional, es necesario remontarse a sus orígenes. Como se sabe, la creación del Fondo de Pensiones del Poder Judicial se crea mediante Ley N° 34 del 9 de julio de 1939. La discusión que daría origen a este sistema comenzó a gestarse desde varios años atrás, en 1933. Antes de esta fecha, existía una Ley General de Pensiones emitida en 1912, y prorrogada en 1925, que establecía un sistema único de cotizaciones para los empleados de la Administración Pública—entendida esta en sentido amplio—; sin embargo, para el caso de los Magistrados, lo usual era que recibiesen un monto fijado para cada caso concreto por acuerdo de Corte Plena, una vez que decidían acogerse al retiro, en una modalidad semejante a la de un permiso con goce de salario.

De los expedientes legislativos y documentos históricos se extrae que a inicios de junio de 1933, sin embargo, un acontecimiento puso en el primer plano la precariedad del sistema vigente: el fallecimiento del Magistrado Tomás Fernández Bolandi. La pérdida de quien fue considerado gran erudito del Derecho tuvo un profundo impacto en el mundo jurídico costarricense, y puso de relieve el desamparo en que quedaban las familias de los más altos servidores judiciales. En efecto, al cabo de pocos meses la Corte Plena comenzó a recibir sucesivas notas, firmadas tanto por jueces como por funcionarios, en que se hacía referencia a las penurias económicas en que había quedado la familia de dicho Magistrado; y muy pronto se planteó la necesidad de crear un sistema de pensiones independiente, que impidiera ese tipo de apremios económicos.

Mientras se daba esta inquietud, el Congreso aprobó en el año 1935 una nueva Ley General de Pensiones, la cual mantuvo en vigencia el sistema de cotización introducido en 1925; empero, no se hizo en ese texto mención alguna de los empleados judiciales—lo que contrasta con la especificidad con la que incluía, entre otros, a los damnificados de los disturbios de San Ramón en 1931, a las familias de los caídos en la guerra tico—panameña de 1921, e incluso a la parentela sobreviviente de la Campaña Nacional de 1856—. Se creaba así la impresión de que era la intención del legislador que el Poder Judicial tuviese su propio régimen; sin embargo, tal aspiración no se concretó tampoco al aprobarse la Ley Orgánica del Poder Judicial en noviembre de 1937.

Hubo que esperar a junio de 1938 para que ingresase en la corriente legislativa un proyecto para adicionarle a dicha Ley las disposiciones necesarias para el nacimiento del régimen independiente de pensiones; pero el ritmo con el que avanzó este proyecto vino a incrementarse luego de producirse, en noviembre del mismo año, el fallecimiento del Magistrado Antonio Álvarez Hurtado. Este nuevo deceso vino a subrayar la necesidad de crear este sistema, y así lo manifestaron nuevamente varios empleados judiciales mediante notas dirigidas a la Corte Plena.

Así, en julio de 1939 se emitió finalmente la Ley N° 34, que—como se indicó—reformó la Ley Orgánica para adicionar las disposiciones relacionadas con el fondo de pensiones. De forma explícita, además, el nuevo texto legal dispuso que no se podía exigir a los servidores judiciales continuar contribuyendo—en los términos de la Ley N° 115 del 11 de agosto de 1925—a ningún otro régimen de pensiones. Es decir, no cabe duda de que la intención del legislador en aquel momento fue mantener al sistema del Poder Judicial completamente independiente y separado de los demás.

El nacimiento del fondo como se ve tuvo origen en una coyuntura histórica muy particular y fue parte de la tendencia de las decisiones políticas en este tema en el siglo XIX-en nuestro país-, tendentes a especializar los regímenes de pensiones en lugar de unificarlos. Desde la normativa emitida para pensiones de guerra luego del conflicto de 1856, y la creación del primer Fondo de Pensiones del Magisterio en 1886 (mediante la Ley N° 21 del 11 de junio de dicho año), la corriente predominante fue la de la separación de regímenes de pensiones. Por ejemplo, la Ley General de Pensiones de 1912 a la que previamente se hizo referencia, no afectó el Fondo del Magisterio, el cual a su vez sufrió reformas en 1916 que ampliaron su carácter solidario, pero nunca afectaron su independencia.

Tampoco fue este el espíritu que inspiró el nacimiento del régimen de Invalidez, Vejez y Muerte (IVM) a cargo de la Caja Costarricense de Seguro Social. Creado por la Ley N° 17 del 22 de octubre de 1943, y en funcionamiento a partir de 1947, estaba concebido como un régimen subsidiario, ya que su cobertura se limitaba inicialmente a los empleados públicos que rebasaran los 65 años, que no estuviesen cotizando a otro sistema. Inclusive, en la misma época se crearon otros sistemas especiales de pensiones: el régimen de Hacienda (1943), el del Registro Nacional (1939), el de Comunicaciones (1940), el del MOPT (1944), el de INCOFER (1939), e incluso el de Músicos y Bandas Militares (1935). Todos los antecedentes indican que los distintos regímenes estaban destinados a convivir entre sí, con el IVM cubriendo por descarte a quienes no estuviesen afiliados a otro sistema. La extensión de las coberturas del IVM comenzó en 1960, para ir abarcando gradualmente todos los sectores sociales.

Lo que está claro es que la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios, y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial, pero claramente, no fue creado como un elemento intrínseco de la independencia judicial ( aspecto medular de la protección constitucional del 167 cuando habla de “estructura y funcionamiento), la cual se sustenta constitucionalmente en otros factores, como la existencia de una carrera que garantiza la objetividad en la selección de los jueces, basada en criterios de idoneidad y estabilidad, la independencia económica y política del órgano, entre otros; pero bien pudo el legislador optar por un régimen único para todos los empleados públicos o trabajadores en general, sin que pudiera afirmarse que eso le resta independencia al órgano.

Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, independientemente de si el régimen de pensiones es específico para los jueces o no. De hecho no todos los países tienen regímenes particulares para los jueces, pero sí se esmeran las democracias más consolidadas de cuidar la judicatura como pieza clave de la estabilidad del Estado de Derecho. Los países que han apostado por la fuerza de la ley y no de las armas para su estabilidad, dependen de la calidad de los jueces para tener calidad de democracia, pues éstos son los guardianes estratégicos del estado de derecho. En el caso de nuestro país, como bien lo ha señalado el Estado de la Nación, el Poder Judicial tiene la particularidad de que es un conglomerado de instituciones muy relevantes para el estado de derecho ( Fiscalía, Policía Judicial, Defensa Pública y Judicatura) y fue su fortaleza la que permitió en gran parte el desarrollo y consolidación de la democracia en el siglo XX en nuestro país. Así consigna el primer informe del Estado de la Justicia al señalar:

“El Poder Judicial ha sido clave para la democracia costarricense.” “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.” En ese sentido fue un acierto del legislador, dotar de garantías e incentivos a la administración de justicia costarricense, porque sólo así podía materializarse el estado de derecho que surgió de la Segunda República, el cual dependería para su éxito, de un robusto régimen de legalidad y no ya -como se dijo-, de la fuerza de las armas, camino por el que habían optado la mayoría de los países del mundo, especialmente los latinoamericanos.

No obstante, no puede afirmarse -desde la perspectiva de la mayoría de la Sala-, que el régimen de pensiones del Poder Judicial, sea parte del contenido esencial de la independencia judicial o que afecte su estructura y funcionamiento, aunque sí, como se dijo, ha funcionado históricamente como su necesario complemento y por el bien de la democracia costarricense, debe velarse porque sea los más estable y digno posible.

Ahora bien, con vista en lo expuesto anteriormente, este Tribunal considera que la materia sobre la que versa el expediente legislativo número 19.922 no se encuentra dentro de los supuestos fijados por el artículo 167 de la Constitución Política y, por ende, no existía la obligación de realizar una consulta a la Corte Suprema de Justicia. En ese sentido, se establece que, si bien el proyecto cuestionado crea un órgano adscrito al Poder Judicial como es la Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial, el cual asume las funciones que anteriormente le estaban otorgadas al Consejo Superior del Poder Judicial, lo cierto es que dichos elementos se refieren a extremos que son propios del Fondo de Jubilaciones y Pensiones del Poder Judicial, sea funciones típicamente administrativas y que no tienen incidencia, al menos directamente, sobre la función jurisdiccional del Poder Judicial, que es, precisamente, lo que protege el numeral 167 constitucional. No estamos, pues, ante la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas. Nótese que el nuevo órgano –la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial- forma parte de la estructura del Poder Judicial, cuya funciones son típicamente administrativas, sea la administración del citado Fondo, lo que no es subsumible en la exigencia constitucional de modificaciones a la organización y el funcionamiento de la Corte Suprema de Justica que atañen a su función típica, exclusiva, sea la jurisdiccional y aquellas administrativas esenciales que dan soporte a su función primaria. En todo caso y sin demérito de lo anterior, es necesario mencionar que en el folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017 por la Comisión Especial, mediante oficio número AL -20035-OFI-0043-2017 del 31 de julio de 2017, la jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, procediendo la Corte Suprema de Justicia a emitir su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según se comprueba del estudio de los folios 2759 a 2807 del expediente legislativo. En ese sentido, es claro entonces que el Poder Judicial sí pudo emitir su opinión con respecto al texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, incluso antes de que éste fuera conocido por el Plenario. En virtud de lo expuesto, la Sala considera que no se presenta el vicio acusado por los(as) consultantes.” (el destacado no corresponde al original) Para la mayoría de este Tribunal no existen motivos que justifiquen variar el criterio ya vertido en dicha opinión consultiva, en el sentido que la materia sobre la que versó el expediente legislativo nro. 19.922 y que, finalmente, se aprobó como Ley nro. 9544, no se enmarca dentro de los supuestos fijados o contemplados por el artículo 167 de la Constitución Política y, por ende, ni existía la obligación constitucional de realizar una consulta a la Corte Suprema de Justicia, ni -como corolario- existía la obligación de que el citado proyecto se aprobara mediante dos terceras partes del total de los miembros de la Asamblea Legislativa, ante el criterio negativo de la Corte Suprema de Justicia sobre el proyecto. Ergo, también procede desestimar la acción de inconstitucionalidad respecto a este punto.

XXI.- Redacta el Magistrado Castillo Víquez. Sobre la organización y funcionamiento del Poder Judicial en relación con el Principio de Independencia Judicial. Finalmente, argumentan algunos de los accionantes que la incidencia de la Ley 9544 en la organización y funcionamiento del Poder Judicial, alcanza al Principio de Independencia Judicial y que éste se ve afectado por varios factores: a) por la creación de la Junta Administrativa; b) por la eliminación de las funciones que tenían Corte Plena y Consejo Superior en relación con la administración del Fondo de Jubilaciones y Pensiones; c) porque se le restó al Poder Judicial la competencia de darse su propia organización, alterándose con ello el escudo de protección que le otorga ese principio contra la intromisión el Poder Político; d) porque se alteró el sistema de contrapesos y el Poder Legislativo tuvo una invasión en el Poder Judicial al realizar cambios en las normas que rigen su estructura administrativa con incidencia en el presupuesto; e) que pese a que el Constituyente Originario dio muestras claras de su intención de garantizar la independencia al Poder Judicial, tanto a nivel presupuestario, como de organización o funcionamiento, con el procedimiento legislativo que dio como resultado la Ley 9544 aquí impugnada, se ha dado una vulneración de lo establecido en los artículos 9, 11, 152, 154, 167 y 177 de la Constitución Política. Ciertamente, la Sala en la sentencia No. 2008-005179 de las 11 horas del 4 de abril de 2008 manifestó que debía de tomarse en consideración que el artículo 167 constitucional, armoniza dos aspectos de carácter fundamental que son: por un lado la independencia del Poder Judicial y, por el otro, el ejercicio de la libertad de configuración o conformación del legislador, la cual no tiene otro límite que el Derecho de la Constitución, precisando que el legislador ordinario goza de una amplia libertad de conformación de la realidad social, económica y política, a través del ejercicio de la potestad legislativa, la cual reside originariamente en el pueblo y es constitucionalmente delegada en la Asamblea Legislativa por su carácter de órgano político representativo (artículos 105 y 121, inciso 1°, de la Constitución Política), siendo que esa potestad legislativa, únicamente, puede tener los límites que establece el constituyente y, en general, el bloque de constitucionalidad, de modo que para evitar una limitación indebida de la libertad de configuración legislativa, cualquier disposición que establezca una condición o límite que la agrave, debe ser interpretado en sus justos y razonables términos, para facilitar su ejercicio. Señaló la Sala en aquella ocasión que un valladar importante establecido por el constituyente a la discrecionalidad legislativa, lo constituye, precisamente, el ordinal 167 de la Constitución, en aras de mantener la independencia del Poder Judicial al disponer una consulta preceptiva de los proyectos de ley referidos a la organización y funcionamiento que le atañen a ese Poder de la República y dispuso además que ese límite debe ser interpretado en su verdadera dimensión, de modo que opere cuando de manera sustancial, objetiva y cierta el proyecto de ley se refiere a tales materias, de lo contrario se limita, innecesaria e injustificadamente, la libertad de configuración del legislador ordinario. Partiendo de este marco contextual que hizo la Sala en la referida sentencia y al apreciarse el contenido integral de la Ley 9544, este Tribunal como sumo interprete del Derecho de la Constitución y custodio de la supremacía constitucional (artículos 10 de la Constitución Política y 1° de la Ley de la Jurisdicción Constitucional), estima que, en el caso concreto, la normativa impugnada, vista en su conjunto y en la suma de cada uno de los alegatos planteados por los accionantes, no conlleva una incidencia en la organización y funcionamiento del Poder Judicial. En primer lugar debe recordarse que la Sala ha sustentado un criterio sólido en cuanto a que las consultas institucionales obligatorias como la del 167 de la Constitución Política, serían improcedentes cuando un proyecto es de carácter nacional o general (véanse sentencias número 2018-019511 de las 21 horas 45 minutos del 23 de noviembre de 2018, 2012-002675 de las 11 horas 52 minutos del 24 de febrero de 2012 y 2008-004569 de las 14 horas 30 minutos del 26 de marzo de 2008); sin embargo, tal y como se explicó en el considerando anterior, con la aprobación y entrada en vigencia de la ley impugnada, la mayoría de este Tribunal, concluye que no hay una afectación a esos extremos en los términos del artículo 167 constitucional. El hecho de que cree una Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial per se no conlleva la creación de un órgano que varíe sustancialmente las funciones de carácter administrativos del Poder Judicial; igual ocurre con la eliminación de esas funciones que tenían la Corte Suprema de Justicia y el Consejo Superior en relación con la materia, de ahí que no se estaba en el supuesto del numeral 167 de la Carta Fundamental. Es decir, no se estaban sustrayendo competencias administrativas esenciales conexas con la función jurisdiccional. Incluso, como es bien sabido, la administración del citado fondo se financia con una contribución parafiscal el 5 x 1000 colones de los salarios, pensionados y jubilados. No estamos, pues, ante la creación ex novo, que varía sustancialmente funciones de carácter administrativo de Corte Plena y que le suprime otras, así como también lo hace con el Consejo Superior. En tal sentido, la propia Sala ha señalado en sentencia número 2008-004569 de las 14 horas 30 minutos del 26 de marzo de 2008, que podría estimarse necesaria una ley reforzada cuando las competencias atribuidas o transferidas suponen una variación sustancial de los fines y cometidos del ente que, en este caso, sería el máximo representante del Poder Judicial que es Corte Plena, supuesto en el que nos encontramos.

Es importante recordar que el concepto de independencia judicial tiene dos dimensiones: la individual (también llamada personal o subjetiva) y la institucional (relativa al Poder Judicial). A los efectos de esta acción, es importante tomar en cuenta que un elemento trascendental para evitar que el principio de independencia judicial se haga nugatorio, es comprender que éste abarca varias facetas más allá de la orgánica, institucional y funcional y puede ser visualizado también desde la dimensión individual, relativa al trabajador (a) del Poder Judicial en relación con todos los factores que le rodean y que, a su vez, permiten garantizar el cumplimiento pleno y efectivo de ese principio de cara a la institución. Desde esta perspectiva, una parte muy importante de esta independencia judicial, es la asignación presupuestaria que se le ha garantizado al Poder Judicial a nivel constitucional, debiendo recordarse que los legisladores que -en su momento- aprobaron la reforma al artículo 177 de la Constitución Política, tuvieron la visión de asegurarle a este Poder de la República, un presupuesto mínimo del 6% de los ingresos ordinarios de la República con el cual pudiera desempeñar las funciones y potestades que le han sido conferidas, evitándose con ello que la determinación del presupuesto se convirtiera en un instrumento de intervención política en la función jurisdiccional y, con ello, en un mecanismo para dejar a la deriva la independencia de este Poder de la República. Al respecto, la Sala lo señaló de una forma muy clara en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018 al manifestar:

“Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, independientemente de si el régimen de pensiones es específico para los jueces o no. De hecho no todos los países tienen regímenes particulares para los jueces, pero sí se esmeran las democracias más consolidadas de cuidar la judicatura como pieza clave de la estabilidad del Estado de Derecho. Los países que han apostado por la fuerza de la ley y no de las armas para su estabilidad, dependen de la calidad de los jueces para tener calidad de democracia, pues éstos son los guardianes estratégicos del estado de derecho. En el caso de nuestro país, como bien lo ha señalado el Estado de la Nación, el Poder Judicial tiene la particularidad de que es un conglomerado de instituciones muy relevantes para el estado de derecho ( Fiscalía, Policía Judicial, Defensa Pública y Judicatura) y fue su fortaleza la que permitió en gran parte el desarrollo y consolidación de la democracia en el siglo XX en nuestro país. Así consigna el primer informe del Estado de la Justicia al señalar:

“El Poder Judicial ha sido clave para la democracia costarricense.” “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.” En ese sentido fue un acierto del legislador, dotar de garantías e incentivos a la administración de justicia costarricense, porque sólo así podía materializarse el estado de derecho que surgió de la Segunda República, el cual dependería para su éxito, de un robusto régimen de legalidad y no ya -como se dijo-, de la fuerza de las armas, camino por el que habían optado la mayoría de los países del mundo, especialmente los latinoamericanos”.

La Sala también ha señalado que:

“(…) Lo que está claro es que la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios, y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial, pero claramente, no fue creado como un elemento intrínseco de la independencia judicial ( aspecto medular de la protección constitucional del 167 cuando habla de “estructura y funcionamiento), la cual se sustenta constitucionalmente en otros factores, como la existencia de una carrera que garantiza la objetividad en la selección de los jueces, basada en criterios de idoneidad y estabilidad, la independencia económica y política del órgano, entre otros; pero bien pudo el legislador optar por un régimen único para todos los empleados públicos o trabajadores en general, sin que pudiera afirmarse que eso le resta independencia al órgano” (ver sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018).

En relación con lo anterior, es importante mencionar que este Tribunal, en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, señaló, además:

“No obstante, no puede afirmarse -desde la perspectiva de la mayoría de la Sala-, que el régimen de pensiones del Poder Judicial, sea parte del contenido esencial de la independencia judicial o que afecte su estructura y funcionamiento, aunque sí, como se dijo, ha funcionado históricamente como su necesario complemento y por el bien de la democracia costarricense, debe velarse porque sea los más estable y digno posible”.

De esta opinión interesa resaltar que, si bien es cierto, la mayoría de la Sala estima que el Régimen de Jubilaciones y Pensiones del Poder Judicial -entendido en un todo, como un sistema de seguridad social que busca garantizar, a la población judicial, el amparo contra las contingencias derivadas de la vejez, invalidez o muerte mediante el reconocimiento de una jubilación, pensión y prestaciones determinadas por Ley a través de fondos recolectados y designados para ello- como un instrumento, es de gran relevancia para su fortalecimiento, ello no significa que sea condición sin la cual no pueda existir un Poder Judicial independiente.

En ese sentido, una cosa es reconocer el papel que ha jugado el régimen de pensiones del Poder Judicial en el fortalecimiento de estabilidad de la carrera judicial y del Poder Judicial como tal, y otra que la existencia de un régimen de pensiones autónomo, sea una condición necesaria para que exista la independencia judicial. No todos los países tienen régimen de pensiones autónomo para sus jueces y funcionarios y no puede decirse que eso per sé implica que no son administraciones de justicia que gocen de independencia. En nuestro país, el propio Tribunal Supremo de Elecciones que goza de independencia en el ejercicio de sus competencias, no tiene un régimen de pensiones autónomo propio para sus jueces, y nadie podría afirmar que ello viola su independencia en cuanto actúa como órgano jurisdiccional. De tal forma que el hecho de que sea conveniente proteger las pensiones en general de jueces y personal judicial y proteger al Poder Judicial de influencias e intervención negativa de factores externos como podría ser el poder político, el crimen organizado, grupos delincuenciales, entre otros, ello no significa que, la iniciativa del legislador de realizar cambios a su régimen de pensiones, basado en los estudios actuariales y comparecencia de técnicos durante la tramitación legislativa, signifique un vaciamiento del contenido esencial de la independencia judicial.

Tampoco estima la Sala que resultan lesivas de su independencia económica, tutelada en el 157 de la Constitución, porque el 6 % Constitucional como techo mínimo para la administración de justicia, no se ve afectado con la ley impugnada. Al Poder Judicial, la Asamblea Legislativa le ha respetado ese porcentaje e incluso, desde hacer más de 15 años le asigna uno mayor, considerando nuevas asignaciones y funciones que se le han dado mediante reformas legales. En todo caso, no se demuestra en el expediente que la asignación del 6% se vea afectada por los recursos públicos que se destinan al Fondo de Jubilaciones del Poder Judicial.

Según las consideraciones anteriores, no se requería de mayoría calificada para su aprobación, y dado que el proyecto del expediente legislativo No. 19.922 se aprobó en Primer Debate con 31 diputados y diputadas a favor y 7 en contra (folio 4173 Tomo 17 del expediente legislativo), en tanto que en Segundo Debate se aprobó con 34 diputados y diputadas a favor y 9 en contra (folios 4437, 4608 y 4637 Tomo 18 del expediente legislativo), no se estima que se da el vicio alegado al principio de independencia judicial.

ARGUMENTOS DE INCONSTITUCIONALIDAD EN RELACIÓN CON ASPECTOS DE FONDO DE LA LEY Nº 9544.- XXII.- Redacta la Magistrada Hernández López. Los accionantes plantean diferentes reclamos de fondo por los cuales consideran que la Ley 9544 es inconstitucional y, aun cuando se impugna toda la ley, lo cierto del caso es que los principales argumentos se dirigen contra los artículos 224, 224 bis, 226, 227, 236, 236 bis, 239, Transitorio II y Transitorio VI de la Ley 9544. Como se ha venido señalando, el Régimen de Jubilaciones y Pensiones del Poder Judicial que estaba contenido en el Título IX de la Ley Orgánica del Poder Judicial, fue reformado completamente por esa Ley 9544, la que contiene 4 capítulos que corresponden a los siguientes temas: Capítulo I “Prestaciones”; Capítulo II “Traslado de Cotizaciones”; Capítulo III “El Fondo” y Capítulo IV “La Administración”. Además, contiene un apartado de 6 Disposiciones Transitorias. Para facilitar el análisis de los argumentos de fondo planteados en esta acción de inconstitucionalidad, la Sala procederá a dividir el trabajo de acuerdo con los capítulos de la ley y será en cada uno de ellos en donde se valorarán los temas, haciéndose la relación con los artículos correspondientes. No obstante, sí considera el Tribunal indispensable hacer, previo a ello, una referencia a algunos conceptos generales que tienen incidencia en todo el análisis posterior, por lo que es aconsejable tenerlos como la base y el contexto a partir de la cual, parte la Sala para tomar su decisión.

A.- ELEMENTOS GENERALES RELEVANTES PARA LA DECISION DE FONDO EN ESTE CASO.

XXIII.- Redacta la Magistrada Hernández López. Sobre el derecho a disfrutar de una jubilación. Este Tribunal ha señalado con claridad que el modelo de Estado social de Derecho y el concepto de seguridad social que adopta nuestra Constitución Política, incluye -como uno de sus elementos- el derecho en favor de las personas trabajadoras, de obtener una jubilación luego del cumplimiento de determinadas condiciones normativamente establecidas. Es ésta una de las formas de expresión del derecho fundamental a la seguridad social recogido en nuestra normativa constitucional, al que se suman el seguro de salud, los distintos tipos de jubilaciones contributivas, así como las no contributivas, entre otros. En este sentido la sentencia 2018-19030 del 14 de noviembre de 2018, que sirvió de base para resolver varios reclamos en materia jubilatoria, expuso con claridad las características que esta Sala ha definido en concreto para este derecho:

“IV.- Sobre el derecho a la jubilación. La jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo determinado, y cuyo fin es garantizar una vida digna para la persona, luego de que finalice su etapa como trabajador. Este Tribunal ha sostenido, en reiteradas ocasiones, que el derecho a la pensión debe ser catalogado como un derecho fundamental, que se deriva del numeral 73 de la Constitución Política, y que se adquiere a partir del momento en que la persona cumple con todos los requisitos establecidos por la legislación correspondiente. De igual forma, se ha reconocido la existencia de distintos regímenes, como el de Capitalización Colectiva, en el que con las contribuciones periódicas de los miembros se crea un fondo común a partir del cual se hará frente al pago de las pensiones de los participantes, o el de Capitalización Individual, en el cual las contribuciones periódicas no provienen de un grupo de personas, sino de un individuo, que por medio de sus aportes al fondo, pretende garantizar el pago de su pensión cuando cumpla los requisitos para su obtención. Finalmente, se encuentra el régimen de pensiones con cargo al Presupuesto Nacional, en el que el financiamiento de jubilaciones y pensiones están cargo del presupuesto nacional. Ahora bien, en cuanto al tema general del derecho a la pensión, en las sentencias números 1147-90 de las 16 horas del 21 de septiembre de 1990, 487-94 de las 16:06 del 25 de enero de 1994, y 2010-1625 de las 9:30 del 27 de enero de 2010, el Tribunal expresó, en lo que interesa, lo siguiente:

“III.- En primer lugar, la Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución, según los cuales:

“Artículo 33 Todo hombre es igual ante la ley y no podrá hacerse discriminación alguna contraria a la dignidad humana" “ Artículo 73 Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine..." Esa conclusión se confirma en una serie de principios y normas internacionales de derechos humanos, que tienen, no sólo el rango superior a la ley ordinaria que les confiere el artículo 7 de la Constitución, sino también un amparo constitucional directo que prácticamente los equipara a los consagrados expresamente por la propia Carta Fundamental, al tenor del artículo 48 de la misma, (reformado por la Ley No. 7128 de 18 de agosto de 1989); entre esos derechos, concretamente, los reconocidos en los artículos 25, 28, 29 y 30- así corregidos los que se invocan en la acción- del Convenio sobre la Seguridad Social, No. 102 de la OIT, en los cuales se establece:

" Artículo 25 Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte" " Artículo 28 La prestación consistirá en un pago periódico, calculado en la forma siguiente... " " Artículo 29 1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos:

• a)a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia...

"2. Cuando la concesión de la prestación mencionada en el párrafo 1 esté condicionada al cumplimiento de un período mínimo de cotización o de empleo, deberá garantizarse una prestación reducida por lo menos:

"a) A las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas un período de calificación de quince años de cotización o de empleo... " " Artículo 30 "Las prestaciones mencionadas en los artículos 28 y 29 deberán concederse durante todo el transcurso de la contingencia" Otros textos internacionales reconocen también, o específicamente el derecho a la jubilación -por edad o vejez- (p. ej. art.16 Declaración Americana de los Derechos y Deberes del Hombre; 22 y 25 Declaración Universal de Derechos Humanos; 31 Carta Internacional Americana de Garantías Sociales; 5o Convención sobre Igualdad de Trato en Materia de Seguridad Social, No. 118 OIT), o, en general, el Derecho a la Seguridad Social, dentro de la cual se tiene universalmente por comprendida la jubilación (p. ej. art.11 Declaración Americana de los Derechos y Deberes del Hombre; y 9? Pacto Internacional de Derechos Económicos, Sociales y Culturales).

IV.- Como se ve, en ambas clases de las normas dichas se reconoce el derecho fundamental de todo trabajador a su jubilación, y se alude claramente a la vejez, en lo que interesa, como la "contingencia" determinante del derecho a la prestación -jubilación-. No se entiende por esto la objeción de la Procuraduría General, cuando afirma que las disposiciones del Convenio No. 102 OIT solamente protegen "a los trabajadores que sufriesen una contingencia dentro de su relación laboral, que no es el caso del recurrente... (f. 62 fte.); dando así, al parecer, a la expresión un sentido incomprensible de anormalidad, por cierto que sin ninguna explicación.” (…)

“II. Esta Sala ya ha conocido del asunto planteado en otras oportunidades (derecho constitucional y fundamental a la jubilación y pensión a favor de todo trabajador), existiendo elementos suficientes, y jurisprudencia lo que faculta su conocimiento de conformidad con el párrafo segundo del artículo 9 de la Ley de la Jurisdicción Constitucional.

III.Por resoluciones número 6124-93, de las catorce horas treinta minutos y 6125-93, de las catorce horas treinta y tres minutos, ambas del veintitrés de noviembre del año en curso, se conoció de dos acciones de inconstitucionalidad cuyos alegatos eran los mismos que los accionantes invocan en esta. En resolución número 1147-90, de las dieciséis horas del veintiuno de setiembre de mil novecientos noventa, la Sala consideró que la pensión o jubilación constituye un derecho fundamental con reconocimiento constitucional e internacional que:

"pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminación alguna, de conformidad con los artículos 33 y 73 de la Constitución." Así, está reconocido en los artículos 25, 28, 29 y 30 del Convenio sobre la Seguridad Social, número 102 de la O.I.T., 16 de la Convención Americana de los Derechos y Deberes del Hombre, 22 y 25 de la Declaración Universal de Derechos Humanos, 31 de la Carta Internacional Americana de Garantías Sociales, 5 de la Convención sobre Igualdad de Trato en Materia de Seguridad Social, número 118 de la O.I.T., 9 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, ámbito internacional, que de conformidad con el artículo 7 Constitucional, está integrado a nuestro ordenamiento jurídico.

IV.La pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, no así el derecho concreto a la jubilación, que se adquiere cuando el interesado cumple con todos los presupuestos establecidos en la ley,(…)”

(…).

“ IV. El derecho a la jubilación y el Estado Social de Derecho. Los artículos 50, 56 y 74 de la Constitución Política configuran “el modelo de Estado social y democrático de Derecho” (Res. 9255 de las 16:03 horas del 25 de agosto del 2004). Como parte de este mismo modelo el principio de solidaridad social actúa como un eje orientador de política interna del Estado, porque el Estado Social de Derecho “entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables” (Res. 13205 de las 15:13 horas del 27 de septiembre del 2005). En forma consecuente y con sustento en el Estado Social de Derecho, “nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de… los trabajadores” (ibid), como es el caso del derecho de jubilación. (…)”. (Sentencia 2018-19030 del 14 de noviembre de 2020) XXIV.- Redacta la Magistrada Hernández López. Las limitaciones y regulación del alcance del derecho a una jubilación reconocido en favor de las personas trabajadoras. Sobre el tema del derecho a la jubilación, también ha enfatizado este Tribunal en la potestad que tiene el Estado de regular, ordenar y limitar los alcances del citado derecho. En la misma sentencia 2018-19030, recién citada se expuso:

“V.- El derecho a la pensión no es un derecho absoluto. Al igual que cualquier otro derecho fundamental, el derecho a la pensión no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no impidan su ejercicio. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la pensión, cuando se logre comprobar que existen ciertas situaciones, como desigualdades o privilegios, que ponen en riesgo la sostenibilidad de un régimen, y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente:

II.- SOBRE EL DERECHO A LA JUBILACIÓN.- En reiterados fallos se ha reconocido en la pensión o jubilación un derecho fundamental a favor del trabajador. Véase por todas el pronunciamiento de esta Sala número 1147-90 de las dieciséis horas del veintiuno de setiembre de mil novecientos noventa, en el que se estableció:

"En primer lugar, esta Sala declara que sí existe un derecho constitucional y fundamental a la jubilación, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano en condiciones de igualdad y sin discriminación alguna de conformidad con los artículos 33 y 73 de la Constitución Política..." Sin embargo, en el mismo pronunciamiento citado quedó establecido que dicho derecho no es absoluto y puede ser objeto de condiciones y limitaciones:

"En realidad no se ignora que el de jubilación, como cualquier otro derecho está sujeto a condiciones y limitaciones pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten además razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresión de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad y que se recoge en general como condición sine qua non de las limitaciones y restricciones a tales derechos autorizados excepcionalmente por los propios textos que los consagran.".

De lo transcrito queda claro que dentro de todo el universo de limitaciones, condicionamientos y restricciones que puede sufrir el derecho fundamental a la jubilación, habrá un grupo de ellas de las que podrá predicarse que son constitucionalmente válidas siempre que cumplan con dos condiciones, a saber: a) que provengan de los textos que reconocen dichos derechos y garantías, y b) que sean necesarias para el ejercicio mismo del derecho de acuerdo con su naturaleza y fin. Es correcto concluir además que -por imperativo de la lógica estructural de nuestro ordenamiento jurídico- la primera de las condiciones recién señaladas puede ampliarse para incluir limitaciones y condicionamientos que provengan de textos de superior jerarquía o bien del mismo rango, tal y como sucede en este caso con las limitaciones que puedan surgir de la propia Constitución Política, entendida ésta no sólo como una agrupación de normas, sino como un conjunto de regulaciones y principios integrados con aspiración de armonía (…)”.

Tales conceptos fueron refrendados por una mayoría de la Sala, al evacuarse la consulta legislativa sobre el proyecto de ley que finalmente se convirtió en la ley 9544 aquí discutida. En ese pronunciamiento (sentencia 2018-005758) se reafirmó:

“(…) Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal.” Y más adelante, concluyó que:

“Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación.(…)” De lo dicho, se concluye que resulta pacífica en la jurisprudencia de esta Sala, la tesis de que el Estado, a través de sus autoridades competentes, pueda ajustar las condiciones concretas de ejercicio del derecho de jubilación del que gozan los trabajadores, no solo a través del establecimiento de requisitos a cumplir para su efectivo disfrute, sino mediante la modificación precisa de las características de ese disfrute, con el fin de equilibrar la sostenibilidad de dicho régimen y respetando la exigencia de que los cambios “sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial.” (v. sentencia 2018-5758 recién citada). Así las cosas, en el resto de esta sentencia se procede a revisar los cambios operados en el régimen de Jubilaciones y Pensiones del Poder Judicial, mediante ley formal número 9544 emitida por la Asamblea Legislativa, para determinar si las autoridades estatales han excedido tales parámetros, todo ello según los temas y la argumentación concreta ofrecida por los diversos accionantes.

B. RECLAMOS RELATIVOS AL CAPITULO I TITULADO “PRESTACIONES” DEL TÍTULO IX “RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL” DE LA LEY ORGÁNICA DEL PODER JUDICIAL XXV.- Redacta la Magistrada Hernández López. Sobre la razonabilidad y proporcionalidad de los requisitos de elegibilidad y de las prestaciones establecidas en el Capítulo I “Prestaciones”, según la reforma operada por la Ley número 9544.- Para explicar su alegato sobre la supuesta vulneración de los principios de razonabilidad y proporcionalidad ocurridos con la emisión de la ley número 9544 cuestionada, algunos de los accionantes señalan que las condiciones de elegibilidad y las prestaciones jubilatorias no atienden a los estudios técnicos que se aportaron al expediente legislativo, mientras que otra parte de ellos, reconocen que el Legislativo se acuerpó en estudios técnicos, pero desdeñó opciones más idóneas con lo que se afectó la razonabilidad de su decisión.

Al respecto tenemos que el capítulo de “prestaciones” de la Ley 9544, recoge la modificación de los requisitos, bajo los cuales, los servidores judiciales pueden obtener el derecho a la jubilación y el monto económico de ella, según dispone el artículo 224 de ese texto legal:

“Artículo 224- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años”.

Por su parte, el artículo 224 bis regula las condiciones para obtener una jubilación anticipada, en los siguientes términos:

“Artículo 224 bis- Los servidores con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación anticipada si no se cumpliera con la edad o el número de años de servicio, citado en el artículo anterior. Esta se calculará de la siguiente forma:

• a)Si el retiro se produjera al cumplir treinta y cinco o más años de servicio, pero sin haber cumplido los sesenta y cinco años de edad, la jubilación se calculará en proporción a la edad del servidor:
• 1)Las mujeres deben haber cumplido al menos sesenta años y los hombres al menos sesenta y dos años.
• 2)El cálculo se hará multiplicando la pensión obtenida según lo establecido en el artículo 224 para el cálculo de la jubilación ordinaria, por la edad del servidor y el producto se dividirá entre sesenta y cinco; el resultado de esta operación constituirá el monto de la jubilación anticipada.
• b)Si el retiro se produjera al cumplir el servidor sesenta y cinco o más años de edad, pero antes de cumplir treinta y cinco años de servicio, la jubilación se acordará en proporción a los años laborados, siempre que el número de años servidos no sea inferior a veinte. Para fijarla, se multiplicará el monto de la jubilación ordinaria, indicado en el artículo 224 por el número de años servidos y el producto se dividirá entre treinta y cinco; el resultado será el monto de la jubilación anticipada”.

El contraste entre la ley actual y la anterior, en los temas abordados por los artículos arriba citados arroja lo siguiente:

• a)Respecto de la edad, con el nuevo texto (impugnado) la edad para la jubilación ordinaria es, como mínimo, 65 años. En el texto de la norma derogada se exigía como mínimo haber cumplido 62 años de edad, (artículo 224 derogado) lo que muestra un aumento de 3 años en cuanto a la edad mínima de jubilación.
• b)Respecto de la cantidad de años de servicio, el texto nuevo (impugnado) dispone la obligación de tener al menos 35 años de servicio. En cambio, la norma derogada requería haber trabajado al menos 30 años en la “administración pública” (artículo 224 derogado). El requisito general de años de servicio se aumentó en 5 años, según se aprecia.
• c)a esto, cabe sumar que se exige ahora demostrar 20 años o más de servicio laborados dentro del Poder Judicial. En el texto anterior, se requería haber laborado para el Poder Judicial los últimos 10 años antes de la jubilación (artículo 231 derogado).
• d)Respecto del monto de la prestación jubilatoria. En la norma nueva (impugnada) el monto bruto de jubilación ordinaria se define como el ochenta y dos por ciento (82%) del salario promedio de los últimos 20 años de salarios mensuales ordinarios devengados en su vida laboral. En cambio, en el texto legal anterior, el monto bruto de la jubilación ordinaria se definía como el cien por ciento (100%) del promedio de los últimos 24 mejores salarios mensuales ordinarios, devengados al servicio del Poder Judicial.

Por otra parte, en lo que respecta a la jubilación anticipada, los cambios se resumen así:

• a)respecto de la jubilación por tiempo de servicio: el texto (impugnado) permite obtener la jubilación anticipada sin contar con la edad requerida (65 años) siempre que se haya cumplido con los años de servicio (35 años). Eso sí, se fija una edad mínima para este tipo de retiro por años de servicio, que se diferencia según el sexo, y que será 62 años para hombres y 60 años para las mujeres. En la legislación anterior, también existía la posibilidad del retiro anticipado al cumplirse los años de servicio exigidos (30 años), sin exigirse una edad mínima, y sin hacerse distinción entre hombres y mujeres. (artículo 225 derogado) b) Respecto del retiro al cumplir la edad. También permite el texto actual (impugnado) el retiro anticipado por edad, es decir, sin contar con el tiempo de servicio exigido (35 años) pero siempre y cuando se haya cumplido con la edad establecida para la jubilación ordinaria (65 años) y -además- se cuente con un tiempo de servicio mínimo de veinte años laborados dentro el Poder Judicial. La legislación anterior contemplaba igualmente esta posibilidad de retiro por edad para lo cual había de cumplirse como con la condición de tener un mínimo de 60 años y contar con al menos diez años de servicio (art 225 derogado) c) Respecto del monto de la prestación jubilatoria anticipada. Para ambos casos de jubilación anticipada (por años de servicio o por edad) la forma de cálculo del monto de referencia a la nueva forma de cálculo del monto del monto bruto de jubilación recogido en el artículo 224 de la ley impugnada.

En tercer lugar, se observa que las pensiones de quienes se incapaciten de forma permanente, no se han visto afectadas en su particular estructura, sino que la inconformidad se vincula con la variación sufrida por el artículo 224 impugnado en el cual se establece el mecanismo para determinar el monto bruto de la pensión ordinaria, del cual -a su vez- dependerá la pensión que pueda corresponderle a las personas afectadas por la contingencia.

Los accionantes advierten que justamente con esa reformulación de requisitos y prestaciones establecidos en los artículos 224 y 224 bis impugnados, se marca el inicio de los problemas de fondo que, en su criterio, contiene la Ley 9544, pues se aumenta la edad de retiro y el número de años que el funcionario debe laborar, a la vez que se reduce la suma que recibirá por concepto de jubilación respecto del salario que devengaba al jubilarse, a lo cual se suma que la aplicación de todas las deducciones legalmente establecidas lo cual genera que el monto a recibir sea en muchos casos menor al 55 por ciento del último salario percibido lo cual es claramente ruinoso. Así las cosas, señalan una lesión de los principios de razonabilidad y proporcionalidad ya que -para algunos de ellos- la Asamblea Legislativa se apartó de los criterios técnicos y optó por acoger un sistema carente de fundamentación ni sustento, mientras que otro grupo afirma que, aunque se atendió a criterios técnicos, se dejó de lado opciones menos lesivas y más razonables y proporcionadas que se plantearon durante el curso de la tramitación legislativa.

XXVI.- Continúa redactando la Magistrada Hernández López. Los informantes llamados a este proceso indicaron lo siguiente sobre la lesión a la proporcionalidad y razonabilidad del nuevo diseño. La Procuraduría General de la República manifiesta en su informe que la necesidad de realizar los cambios disputados en el régimen de pensiones del Poder Judicial, se deriva directamente de los estudios actuariales en que se fundamentó dicha reforma. En otras palabras, incrementar la edad de retiro y el número de años de cotización y reducir las prestaciones económicas a favor de los jubilados, no fue una decisión adoptada por capricho del legislador, sino que es el resultado de la situación del régimen, lo cual se vio reflejado en los estudios actuariales mencionados, concluyendo que los cambios operados cuentan con el respaldo técnico necesario para afirmar su ajuste al Derecho de la Constitución. Señala que el tema ya fue objeto de análisis concreto por parte de la Sala en la consulta legislativa de constitucionalidad que dio origen a la sentencia número 2018-5758 ampliamente mencionada. Explica finalmente en este punto que el nuevo texto del 236 de la LOPJ dispone expresamente que las deducciones no podrán ser superiores al 55 por ciento del monto bruto de la jubilación o pensión fijada; todo ello, sumado a la existencia de estudios técnicos sobre los cuales se actuó, hacen las modificaciones no infrinjan los principios de razonabilidad y proporcionalidad.

En el informe rendido por la Presidenta de la Asamblea Legislativa, se indicó: “Debe entenderse entonces, que la ley bajo análisis no responde a criterios arbitrarios o antojadizos -situación ya analizada por la Honorable Sala Constitucional-, por lo que no supone vulneración alguna a los principios constitucionales de razonabilidad y proporcionalidad” haciendo referencia a que la Comisión Especial que dictaminó el proyecto, tomó en cuenta el referido estudio técnico así como también que contó con participación del Comité Técnico que creó el Poder Judicial, y refiriéndose también a que en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, la Sala había señalado que se contó con tales estudios técnicos.

La Vicepresidenta de la Corte Suprema de Justicia en su informe señala que en relación al porcentaje establecido en el artículo 224 de la Ley número 9544, es preciso tomar en cuenta que las personas servidoras judiciales en el momento de acogerse a su jubilación, continúan contribuyendo al Fondo de Jubilaciones y Pensiones del Poder Judicial con un aporte obrero de un 13% según el artículo 236 de ese mismo cuerpo normativo, a diferencia de otros regímenes de jubilaciones y pensiones, por ello el monto de su jubilación se vería disminuido y además se debe agregar otras deducciones como es el rebajo por concepto de gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial que establece una comisión por gastos administrativos de un cinco por mil de los sueldos que devengan las personas servidoras judiciales, así como de las jubilaciones y pensiones a cargo del fondo, lo que podría verse como confiscatorio (artículo 40 constitucional) o violatorio al principio de irretroactividad de la ley (artículo 34 de la Constitución Política) al existir derechos patrimoniales adquiridos y consolidados por una ley anterior. Menciona además la Vicepresidenta del Poder Judicial que según el informe aprobado por la Corte Plena en sesión número 26-17 de 7 de agosto de 2017, artículo XXX, “(…) esta Corte ha sido respetuosa y lo será de los estudios técnicos que se emitan para procurar la sostenibilidad del Fondo, no obstante, no puede obviarse que se está en presencia de derechos fundamentales y es por ello que también la reforma merece un estudio apegado a la técnica actuarial pero también con perspectiva de derechos humanos.

En ese sentido cabe destacar que la Recomendación nº 43 de la OIT “Recomendación sobre el seguro de invalidez, vejez y muerte”, en el punto 13), incisos a) y b) señala que:

"(a) Para garantizar a los trabajadores una vejez sin privaciones la pensión debería cubrir las necesidades esenciales. Conviene, por consiguiente, que la pensión garantizada a todo pensionado que haya cumplido un período de prueba determinado se fije teniendo debidamente en cuenta el coste de vida.

(b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieran abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión (El destacado es nuestro).

Es claro entonces que tanto el Convenio n° 102 como la Recomendación n° 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación y pensión deben satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de vida y la situación social durante el período de actividad profesional”. Es decir que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa.

No se desconoce la necesidad de hacer reformas al Fondo de Jubilaciones y Pensiones con el fin de procurar la sostenibilidad, pero estas deben responder revestirse de idoneidad y razonabilidad, tal y como lo indicó la Sala Constitucional en el voto n° 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial. Lo anterior es conteste con lo dicho por la Comisión Interamericana de Derechos Humanos cuando al analizar la admisibilidad del caso “Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras contra Perú” (1), esbozó que el artículo 26 mencionado, no es excluyente de la posibilidad de que un Estado imponga ciertas restricciones al ejercicio de los derechos incorporados en esa norma, siempre y cuando se haya hecho un análisis conjunto de la afectación individual del derecho (en este caso a la jubilación y la pensión) con relación a las implicaciones colectivas de la medida”.

XXVII.- Redacta el Magistrado Araya García. Este Tribunal estima que tal como la Procuraduría y la Presidencia de la Asamblea Legislativa apuntan, tanto la cuestión de la ausencia de criterios técnicos para fundar las decisiones de la reforma operada en el régimen de Jubilaciones y Pensiones del Poder Judicial, como el hecho de que se haya preterido una opción más favorable para los participantes del fondo en lo atinente a los requisitos de elegibilidad y la forma de cálculo de las prestaciones jubilatorias ya fue abordada cuando este Tribunal tuvo oportunidad de analizar los textos legislativos con la redacción que finalmente se convirtió en ley de la república. En la sentencia 2018-5758 que respondió la citada consulta constitucional se dijo sobre ese aspecto:

“ XIX.-Sobre la falta de estudios para fijar el cálculo de la pensión. Los(as) consultantes estiman que el artículo 224 del proyecto de ley es contrario al numeral 73 de la Constitución Política. Aducen que el artículo cuestionado dispone que el cálculo de la pensión se obtendrá del promedio de los salarios de los últimos 20 años devengados por la persona trabajadora, sin contar con estudios técnicos con respecto a cuál será el impacto real sobre las reservas del fondo. Agregan que el estudio que sirvió de base fue el emitido por la Universidad de Costa Rica, pero en este se fijó como límite para el cálculo de la pensión los últimos 120 salarios (10 años), por lo que estiman que la Comisión Especial se extralimitó en sus apreciaciones, toda vez que, sin fundamento técnico, varió el criterio de cálculo de los últimos 120 salarios a uno de 240 salarios. Asimismo, consideran que resulta ilegítimo que se tome como absoluto el porcentaje anual de los rendimientos en un 3%, de las inversiones del Fondo, sin tomar en cuenta que los rendimientos reales fueron mayores. En lo que atañe al primero de los alegatos, la Sala considera que, tras analizar los autos, se descarta el vicio acusado, pues a folio 2942 del expediente legislativo consta el oficio número IICE-186-2017 del 18 de agosto de 2017, en el que el director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica avala el parámetro establecido por el artículo 224 del proyecto ley, al mencionar, sobre el particular, lo siguiente:

“a. Salario de referencia para el cálculo del monto de la jubilación o pensión En el artículo 224 a reformar, el Dictamen de Mayoría calcula el salario de referencia (SR) como el promedio de los últimos 20 años (SR20), actualizado con el índice de precios al consumidor calculado por el INEC, mientras que los marcos IICE_3 e IICE_4 lo calculan como el promedio de los últimos 10 años (SR10), ajustado por el mismo índice. Se estimó que el salario promedio de los últimos 20 años, ajustado por inflación, es un 4.8% menor que el salario promedio de los últimos 10 años para los nuevos pensionados, dada la escala de mérito vigente en el Poder Judicial. Esta diferencia entre el Dictamen de Mayoría y los marcos IICE, tomada en forma independiente de los otros componentes de la normativa propuesta, actúa a favor de la solvencia actuarial del fondo de jubilaciones y pensiones, aspecto al que haremos referencia en el inciso siguiente.

b. Aporte obrero y beneficio de los afiliados (…)

Ahora bien, el Dictamen de mayoría propone un beneficio del 85% de un salario de referencia de 240 meses (en vez de 120 meses), con un aporte obrero que, como se comentó, consiste en una escala diferencia entre 11% y 15%. Ya se señalaron problemas conceptuales y operacionales asociados a la aplicación de esa escala que, al quedar a criterio de la Junta Administradora del propio Poder Judicial, corre además el riesgo de fijarse en la práctica más cerca del 11% que del 15% lo que, combinado con un beneficio del 85% del salario de referencia, afecta negativamente la solvencia actuarial del fondo.

A este respecto, el equipo del IICE considera más adecuado y conveniente establecer un aporte obrero único claramente definido y con un vínculo razonable entre este aporte y el beneficio que reciben los afiliados al fondo. En este caso, el equipo considera que un aporte único de 13% (aplicado a activos, jubilados y pensionados) sería compatible con un beneficio de 82% calculado sobre el salario de referencia de 240 meses. Es importante destacar que el Dictamen de mayoría fija el aporte patronal en 14,36% (artículo 236, inciso 2), desvinculándolo de incrementos proporcionales en el aporte obrero, aspecto que se apega a lo recomendado por el IICE”.

En ese sentido, al constatar que, contrario a lo que se afirma en el escrito inicial, sí existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.

Por otra parte, en lo que respecta al segundo de los alegatos de los(as) consultantes, la Sala considera que, en el fondo, lo que se cuestiona es si los parámetros que sirvieron de base para fijar los requisitos para obtener el derecho de pensión eran los idóneos o no, extremo que no implica que la norma sea inconstitucional, tal y como estiman los(as) consultantes, de ahí que se considere que el vicio es inexistente.” De similar manera, se había señalado anteriormente en la misma sentencia:

“XV.- Sobre la alegada violación al principio de independencia judicial. (…) Considera la Sala que con lo anterior se cumple con lo establecido por la doctrina internacional, en el sentido de que son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas, situación que se cumple en este caso, tomando en cuenta los análisis efectuados por la Universidad de Costa Rica en los estudios actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial. (…) Así, en atención a lo dispuesto anteriormente, la Sala no considera que se presente el vicio alegado.” Y agregó un poco más adelante:

“XVII.- Sobre los cambios en los requerimientos para obtener el derecho de pensión. Los(as) consultantes consideran que el artículo 224 del proyecto de ley lesiona los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar, pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Asimismo, cuestionan el transitorio VI del proyecto, que dispone que solamente aquellas personas que estén a 18 meses de cumplir los requisitos para adquirir el derecho de pensión, podrán hacerlo al amparo de lo establecido por la Ley N° 7333. Las normas cuestionadas disponen lo siguiente: (…) Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente:

(…)

Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Ante dicho panorama, la Sala considera que las normas cuestionadas no resultan inconstitucionales, en el tanto su fin es, precisamente, garantizar la permanencia del Régimen de Jubilaciones y Pensiones del Poder Judicial, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19.922, así como de estudios de naturaleza técnica que constataron la existencia de una problemática que puede llegar a afectar la sostenibilidad del Régimen mencionado, y para lo cual emitieron una serie de recomendaciones. En ese sentido, al comprobar que la variación de requisitos dispuesta por el numeral 224 y el plazo fijado por el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado.” (sentencia 2018-5758).

Visto lo anterior y dada la inexistencia de elementos de convicción novedosos aportados por los accionantes en estos aspectos, el Tribunal tiene por comprobado -en primer lugar- que la insostenibilidad del fondo de Jubilaciones y Pensiones del Poder Judicial era un hecho real al momento en que tanto la Corte Suprema de Justicia como la Asamblea Legislativa, deciden iniciar un proceso de reforma del régimen jubilatorio de la institución, apoyados en una valoración técnica que operara como insumo técnico para atacar los problemas financieros que amenazaban al Fondo. En segundo lugar, la Sala reafirma lo dicho en la sentencia 2018-5758, en relación con la validez y pertinencia constitucional de los cambios operados en las condiciones de elegibilidad, así como en la determinación de las prestaciones a cargo del Fondo, en el entendido de que tales ajustes se encuentran dentro del marco constitucional legítimo de acción del legislador en materia jubilatoria según se explicó en dicho texto. En tercer lugar, también se reafirma lo dicho en la sentencia 2018-5758 respecto de la existencia un adecuado sustento técnico que soporta al texto que finalmente se convirtió en ley de la república, en el tanto que los parámetros finales establecidos sí fueron avalados técnicamente según se explicó en detalle en la sentencia 2018-5758 recién citada.

XXVIII.-Continúa redactando el Magistrado Araya García. No obstante lo anterior, los accionantes reiteran la falta de razonabilidad y proporcionalidad constitucionales de la decisión tomada y sostienen concretamente que el informe técnico ofreció a los legisladores opciones más favorables para los intereses económicos de los participantes del fondo y que dejaban intacta la finalidad de la legislación pero, a pesar de ello, dicha opción no fue convertida en ley, con lo cual se infringió la condición de idoneidad que forma parte del parámetro de razonabilidad constitucional. Sobre el particular, la Sala observa que el Poder Judicial formalizó el Convenio R-CONV-005-2016 con el Instituto de Investigaciones en Ciencias Económicas (IICE) de la Universidad de Costa Rica, a fin de que realizara un estudio actuarial para determinar la solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial. En lo que interesa, de dicho estudio surgió evidencia clara y contundente sobre la insostenibilidad de la configuración vigente de dicho fondo, y por esa razón se ofrecieron cuatro propuestas de nuevos “marcos normativos” (marcos IICE 1, 2, 3, y 4) como ejercicio técnico para valorar distintas posibilidades de reacomodo de las variables incidentes en la operación del régimen previsional en cuestión. De ellos, según el propio estudio técnico, los números 1 y 2 no reúnen características de solvencia y sostenibilidad y se incluyeron para mostrar la forma en que los distintos valores de las variables afectaban el resultado final. Por esa razón, y como lo señalan los accionantes, el informe técnico recomendó a la Asamblea dos posibles combinaciones técnicamente viables: el marco IICE 3 y el marco IICE 4, para la modificación del régimen; sin embargo, no comparte la Sala conclusión de los interesados en el sentido de que lo anterior implicaba para el legislador, una elección exclusiva entre esas dos alternativas: primero, porque ninguna de ellas aspiraba ser “la mejor opción posible” sino que planteaban solamente como opciones viables para la modificación; segundo, porque quedaba claro que ellas no agotaban las posibilidades técnicamente válidas y aceptables de conjugación de variables de elegibilidad y beneficios (tal como al final resultó, según se dirá); y tercero porque la elección de cualquiera de las dos opciones (IICE 3 O IICE 4) o la construcción de alguna diferente, imponía necesariamente para los legisladores, un intercambio y equilibrio, entre las distintas variables relacionadas con aportes, condiciones de elegibilidad y beneficios a percibir. Así por ejemplo, sobre la misma base compartida de requisitos generales de elegibilidad (65 años de edad y 35 años de servicio); de forma de cálculo del salario de referencia (promedio de los últimos 10 años laborados); de existencia de un tope máximo de pago jubilatorio de 10 veces el salario base del Poder Judicial, y de una contribución solidaria para quienes recibieran jubilaciones altas, el marco IICE3, proponía para una jubilación ordinaria por vejez, un pago jubilatorio equivalente a un 72,5% del salario de referencia, a cambio de una contribución obrera (aportes de trabajadores activos y jubilados) que resultaba más baja (del orden del 11%) mientras que el IICE4 planteaba entregar un pago jubilatorio equivalente al 85% del salario de referencia, pero a cambio de una contribución obrera más alta (del orden de un 15%). Frente a ese estado de cosas, la opción acogida por la Asamblea Legislativa no resulta arbitraria pues consistió en construir -con los elementos técnicos aportados- una propuesta intermedia entre los marcos IICE3 e IICE4 originalmente recomendados. Es decir, sobre la misma base común de requisitos de los citados marcos, en cuanto a condiciones de edad y de servicio; de tope al monto jubilatorio y de establecimiento de una contribución solidaria para las jubilaciones por encima de este último, la Asamblea definió para la jubilación ordinaria por vejez- un pago jubilatorio del 82% del salario de referencia (9 puntos y medio porcentuales más alta que el 72,5% propuesto en el marco IICE3, pero 3 puntos porcentuales menor que el 85% fijado en el marco IICE4). De igual forma, se fijó el porcentaje de contribución obrera en 13% (es decir 2 puntos porcentuales más que el 11% del marco IICE3, pero 2 puntos porcentuales menos que el 15% establecido en el IICE4). Cabe indicar que parecidas consideraciones pueden realizarse en relación con los casos de las pensiones anticipadas y las pensiones por invalidez. Sin embargo -y en esto parecen centrarse los argumentos de varios de los recurrentes- la Asamblea Legislativa varió la fórmula de cálculo del salario de referencia, para fijarlo en el promedio de los últimos 240 salarios (20 años laborados) frente al promedio de los últimos 120 salarios (10 años) empleado en los marcos IICE3 e IICE4; dicho cambio, implicó, de acuerdo a la propia autoridad técnica, una disminución del 4,8 % en el salario promedio que serviría de referencia para fijar el pago jubilatorio.

Con ese cuadro, debe entonces determinarse si tal conjunto de actuaciones de la Asamblea, se ubica en el terreno de lo irrazonable por resultar inidóneas y la conclusión de la mayoría del Tribunal, es que el defecto acusado es inexistente, pues precisamente se trató de una elección intermedia entre los dos marcos recomendados, elección respecto de la que no se ha demostrado que haya implicado una desmejora sustancial y relevante de las condiciones de los participantes del fondo, frente a las ofrecidas en los marcos IICE3 o el IICE4, esto porque como se explicó, lo ocurrido fue un intercambio de unas ventajas por otras, siempre dentro los límites fijados en los marcos propuestos por el ente técnico, y sin que existan en este expediente datos precisos y fiables para afirmar que -valoradas todas las condiciones- existía una opción técnica disponible para el legislador, que generaría las mismas garantías de sostenibilidad que se buscaban para el fondo, pero ofreciendo a la vez niveles de protección clara y contundentemente mayores de los derechos fundamentales en juego. Hay que sumar a esto el hecho de que, precisamente, la labor del legislador consiste en sopesar los diferentes intereses y necesidades en juego y construir -dentro del espacio ofrecido por el marco técnico, pero también con fundamento en motivos de conveniencia y oportunidad- la estructura normativa que, según su criterio, resulte ser la que mejor se adapta a la finalidad estatal perseguida. Es esa su labor como representantes del pueblo y no debe esta Sala sustituir tal competencia ni la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial. Por último, cabe repetir que la propuesta normativa consensuada por la Asamblea Legislativa recibió el aval de la entidad técnica, quien señaló la propiedad técnica de ese diseño finalmente adoptado mediante el informe IICE-186-2017 que consta a folios 2942 y siguientes del expediente legislativo, tal como se explicó en la sentencia 18-5758 de esta Sala, citada supra.

Como se indicó en el considerando VI de esta sentencia el Instituto de Investigaciones en Ciencias Económicas (IICE) en el oficio IICE-186-2017 citado, se refiere a los cambios efectuados como técnicamente idóneos porque actúan a favor de la solvencia del fondo. Particularmente señala, en cuando al proyecto dictaminado por mayoría que los cambios en el cálculo del monto de la jubilación o pensión, en la edad requerida, en la contribución especial solidaria de 50%, el aporte obrero con escala diferenciada, edad de jubilación anticipada con diferencias por género, actúan a favor de la solvencia actuarial del fondo. Mientras que en el caso del dictamen de minoría (folios 2945 y ss mismo tomo) que estaba a favor de:

Utilizar un salario de referencia menor, calculado en el promedio de los últimos 10 años ajustado por el IPC. Sobre este punto se indica que esta modalidad de cálculo resulta menos favorable para la solvencia actuarial del fondo, y que su efecto debe analizarse en conjunto con otras características y parámetros como edad para jubilación ordinaria o por servicio, aporte obrero, contribución solidaria y transitorio. 85% de salario de referencia con una cotización obrera del 11%. Al respecto señala que la contribución obrera del 11% debería estar asociada a una jubilación o pensión que no exceda del 72.5% del salario de referencia calculado con los últimos 120 salarios ajustados por el IPC con el fin de mantener la solvencia actuarial. Se propone una edad de 62 años para hombres y 60 para mujeres y no se establece una edad mínima para la jubilación adelantada o por servicio. Al respecto se señala que, en este escenario, aun con un aporte de 15% sobre salarios, jubilaciones y pensiones el fondo resulta insolvente si se mantiene un beneficio del 85% del salario de referencia. Agrega que “los análisis conducidos por el IICE revelan que la propuesta que surge del Dictamen de Minoría no pasa una prueba rigurosa de solvencia actuarial”. En particular se señala:

“ i. Si el aporte obrero se mantiene en el 11% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 3 millones de millones de colones, y la insolvencia actuarial sería superior al 30% de las promesas.

ii. Si el aporte obrero se incrementa al 15% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 1.7 millones de millones de colones mientras que la insolvencia actuarial sería mayor al 17% de las promesas.

Contribución solidaria del 20% del exceso sobre el tope máximo definido para jubilaciones y pensiones que se fija en 10 salarios base. Este porcentaje puede aumentarse al 50% “si así lo recomienda algún estudio actuarial y lo aprueba la Junta Administrativa del Fondo”. Respecto a esta propuesta, el IICE señala que al reducirse al 20% la contribución, se pierde parte del efecto equiparador de dicho aporte. Transitorio V. El Transitorio V propuesto por el Dictamen de Minoría prorroga los beneficios de la ley actual por 10 años adicionales a los 18 meses que se reconocen como derecho adquirido; si bien el beneficio se establece como 100% del salario de referencia de 120 salarios ajustados por el IPC, el transitorio no contempla gradualidad, de manera que su efecto en la solvencia se aproxima al del transitorio del proyecto de la Corte Plena, analizado en el Producto 4 del estudio actuarial. Dado que se trata de un período mayor y menor gradualidad, resulta menos favorable relativo al transitorio IV del Dictamen de Mayoría en cuanto a su incidencia en la solvencia actuarial del fondo. Aporte patronal. Se propone que el aporte patronal del Poder Judicial (actualmente de 14,36% de los sueldos y salarios de los afiliados) “se ajustará proporcionalmente conforme a los incrementos que la Junta Administrativa acuerde como aporte de los servidores y servidoras judiciales….”. “El equipo del IICE considera totalmente inconveniente la cláusula anterior.” “La posición es que la garantía de la solvencia no debe descansar en el aporte estatal y evitar en esa forma un mayor deterioro de la ya delicada situación fiscal del país.” Operaciones de crédito: Se propuso autorizar a la Junta Administradora para que con los ingresos del Fondo se realicen operaciones de crédito en forma directa o por intermedio de alguna institución financiera. Sobre este tema, el equipo del IICE manifestó: “…la eventual participación del fondo en operaciones de crédito debe analizarse con sumo cuidado. En particular, es necesario considerar que las operaciones de crédito requieren de infraestructura administrativa, personal especializado y experiencia, los cuales implican gastos y también riesgos que deben ser adecuadamente valorados.” Luego de estas observaciones y de la discusión legislativa, se hicieron modificaciones al proyecto de ley, en la mayoría de los casos, para adaptarlas al criterio emitido por IICE, otras para incorporar posiciones dadas durante la discusión legislativa.

Los accionantes reclaman que no pueden existir medidas regresivas en derechos económicos sociales y culturales, dentro de los cuales estarían los sistemas de pensiones. No obstante, tal y como ha señalado el Comité de Derechos Sociales del Consejo de Europa y otros Tribunales Constitucionales como el Colombiano, es posible adoptar medidas regresivas en el ámbito de los Derechos económicos, sociales y culturales (DESC), cuando con ellas se persigue un fin legítimo y relevante, como el mejoramiento de otro derecho o del nivel general de cobertura de servicios que garanticen su efectividad o bien sirvan para evitar medidas más gravosas y estén técnicamente sustentadas. Así, la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas debe haberse escuchado a los afectados porque se trata del ingreso que reciben en curso, como medio de subsistencia y en el cual se basa la gran parte de su proyecto de vida y de su derecho a una vejez digna.

Conforme a la doctrina y Jurisprudencia Interamericana, en los supuestos de regresividad de los DESC, es necesario, verificar la legitimidad de la finalidad que la norma pretende alcanzar, si la restricción de derechos es “idónea” o “adecuada”, sucesivamente si es “necesaria” o “indispensable” y, por último, si es “proporcionada” en estricto sentido o “ponderada”. El fin que la norma pretende alcanzar no debe estar prohibido por la Constitución y debe ser además un fin necesario y constitucionalmente importante. La norma en cuestión “(…) no puede tener cualquier finalidad, sino que debe estar orientada a proteger valores que tengan un sustento constitucional expreso, ya sea por cuanto la Carta los considera valores objetivos del ordenamiento (…). Esto significa que estas medidas deben ser no sólo admisibles sino buscar la realización de objetivos constitucionalmente importantes”. Asimismo, se debe constatar si los medios previstos en la norma para lograr el fin perseguido son adecuados o no para alcanzar efectivamente dicho fin o, dicho de otro modo, “(…) el efecto protector de la medida en relación con el interés o valor que se quiere favorecer debe aparecer demostrado claramente”.

No deben existir otros medios para alcanzar con la misma eficacia el fin perseguido que sean menos onerosos en términos de sacrificio de los derechos constitucionales susceptibles de limitación en cada caso o, en otras palabras, “(…) que no exista otro medio que pueda conducir al fin y que sacrifique en menor medida los principios constitucionales afectados por el uso de esos medios”.

Lo que se busca en este paso es verificar que la reducción o el deterioro en el patrimonio jurídico de las personas, es decir, la afectación de principios y derechos constitucionales, no sea superior al beneficio que esa afectación está en capacidad de reportar. En palabras de la Corte Interamericana, se debe verificar si “(…) la restricción de los derechos afectados es equivalente a los beneficios que la disposición genera.

Si el daño que se produce sobre el patrimonio jurídico de los ciudadanos es superior al beneficio constitucional que la norma está en capacidad de lograr, entonces es desproporcionada (…)”.

La Corte Interamericana, asimismo, ha sostenido que en temas económicos y más concretamente en lo que tiene que ver con temas presupuestales y apropiación de recursos, el legislador tiene una amplia libertad de configuración, motivo por el cual, en estos casos, los eventuales juicios de proporcionalidad que se hagan, deben tener una intensidad leve, que es precisamente la categoría de derechos en análisis.

Como queda comprobado del expediente legislativo, el sistema de pensiones del Poder Judicial, tenía un déficit actuarial de más de 5 mil millones de millones al momento de la discusión legislativa, que ponía en peligro el patrimonio del conjunto de los afiliados colectivos y pasivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial y las finanzas públicas, ya que el Estado tendría que asumir presupuestariamente ese déficit en un momento precario para las finanzas públicas. Es decir, no sólo existía una necesidad legítima de intervenir, sino una obligación legal de proteger el equilibro del fondo, del cual dependen miles de personas y familias, sino también el adecuado resguardo de las finanzas públicas.

A manera de ejemplo lo señalado por el Dr. Max Soto Jiménez del Instituto de Investigación Económicos de la Universidad de Costa Rica (folio 1321) y parte de su equipo, adelanta a la Comisión que dentro de los hallazgos, el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (en adelante IICE) encontró que el déficit actuarial es 9.7 veces el monto de las reservas acumuladas y es un 36% del valor presente de todo el pasivo del régimen y que el texto sustitutivo que se discute en la Comisión es insuficiente para la garantizar la sostenibilidad del régimen de pensiones del Poder Judicial. (ver folio 1352 tomo 7 expediente legislativo).

Asimismo (folios 2274 y 2275 tomo 10) consta la intervención del Dr. José Antonio Cordero Peña del IICE, en el mismo sentido sobre la gravedad de la situación del fondo y la necesidad de tomar medidas:

“En realidad es evidente, que el fondo en este momento es insolvente…Si continuamos como están las cosas en estos momentos, lo que va a pasar es que las personas que se vayan jubilando los próximos años; van a comerse los recursos del fondo de las generaciones futuras y vean que curioso, como estamos todos tan longevos, también se van a comer los fondos los que van a financiar a ellos cuando tengan noventa años, cuando tengan noventa, noventa y cinco años, alguien va a tener que llegar a decirle, mire sabe qué, su pensión ya no va a ser factible, parecido como les pasó a algunos afiliados de fondos de pensión privados, en Chile.” Esa situación fue reconocida no sólo por el informe actuarial de la Universidad de Costa Rica, sino años antes por el informe de Melinsky citado, y por las propias autoridades del Poder Judicial durante las comparecencias, así como los propios gremios del Poder Judicial que participaron durante el proceso legislativo y además integraron los equipos técnicos del Poder Judicial que participaron en la elaboración de los 6 productos del IICE y avalaron las recomendaciones de los estudios, ahora impugnadas en esta acción.

En efecto, como se indicó en el Considerando VI de esta sentencia, en el Convenio R-CONV-005-2016 suscrito entre el Poder Judicial y la Universidad de Costa Rica, consta que los gremios o sindicatos del Poder Judicial, tendrían un representante en Equipo Ejecutivo, (folio 689 y 1154). En comparecencia ante la Comisión el Licenciado Hernández Solano señaló:

“Por primera vez en un estudio actuarial se les da representación a los trabajadores, en esta ocasión con el estudio de la UCR, por primera vez.

Hay un comité técnico dentro del Poder Judicial y un comité técnico dentro de la UCR, ellos son los que analizan todas las partes de las cinco fases que tiene el convenio UCR-Poder Judicial. El Comité Ejecutivo dentro del Poder Judicial es el que avala cada fase, la prueba, le hace consultas con el Comité Técnico y al final de cuentas le damos la aprobación”. (lo resaltado no es del original) “Por parte de la institución, hay un equipo ejecutivo… Está el Jefe del Departamento Financiero Contable de los gremios, formando parte de este equipo técnico. ¿Por qué toma la institución esa decisión? Bueno, porque la experiencia nos había demostrado que en procesos anteriores, los cuestionamientos de los gremios al estudio, se venían a dar al final del estudio y entonces entrábamos en una conflictiva interna, que no era sana. De esta forma, consideramos importante incorporar al representante gremial, como parte de este equipo ejecutivo y participa activamente y revisa los productos, como parte del resto del equipo que está conformado.” (folio 1325 tomo 6 del expediente legislativo) Allí se pactaron las condiciones de cada producto y el acuerdo se comunicó a la Comisión Legislativa Especial encargada de conocer y dictaminar el proyecto de Ley “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222” (folio 775 folio 4 expediente legislativo) “En el proceso se daban observaciones, incluso quiero decirles que la Auditoría Judicial también participó en este proceso de revisión, y hubo observaciones por parte de don Arnoldo, en su momento representante gremial, por parte de la Auditoría, se le trasladaban al IICE, ellos nos daban una respuesta, en algunos casos corrigieron los productos porque este proceso se da en una versión preliminar para discusión o para valoración y luego, satisfechos con esa corrección se le daba la aprobación y visto bueno” ( folio 2335 tomo 10 expediente legislativo) (lo resaltado no es del original) A folios 843 del expediente legislativo, se aporta el estudio actuarial anterior de Melinsky, Pellegrinelli y Asociados S.A, que a folio 939 que entre sus recomendaciones señala, que para el año 2026 se visualiza un año crítico con un importante déficit actuarial del 50% de los capitales constitutivos de los beneficios en curso. Señala que “se requieren medidas sustantivas y efectivas tendentes a reducir el déficit actuarial y postergar sustantivamente el año crítico”. Agrega que a fin de tomar medidas de ajuste debe tenerse presente que se trata de un régimen previsional en curso donde deben ser compatibilizados los siguientes conceptos:

Beneficios en curso Tiempo de servicio prestado por los servidores en actividad Actuariales (reservas matemáticas requerida, déficit operativo, déficit actuarial, año crítico, prima media requerida de equilibrio) Legales Capacidad contributiva de los afiliados Capacidades presupuestarias del Poder Judicial Capacidades presupuestarias del Poder Ejecutivo Agrega. “todo análisis jurídico debe tener en cuenta que los ajustes que se señalan resultan necesarios a efectos de mejorar la situación de déficit actuarial y año crítico que implica un Riesgo Institucional que pone en peligro el patrimonio del conjunto de los afiliados colectivos y pasivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial. (lo resaltado no es del original) “Es decir que el elemento jurídico básico a tener en cuenta es que los derechos individuales reconocidos por la ley actual, deben considerarse derechos en expectativa supeditados al derecho colectivo respecto de la factibilidad de las prestaciones a la masa de afiliados no sólo en cuanto a su incidencia en el ámbito del Poder Judicial sino por su potencial efecto en el Presupuesto Nacional.” En la comparecencia de la Directora Ejecutiva del Poder Judicial (tomo 1322 y ss tomo 6 del expediente legislativo) señala que desde el último estudio actuarial de Melinsky la situación del déficit actuarial pasó de 2.48 millones de millones “a un escenario que ronda los 5 mil millones de millones”. Ante la pregunta de la Diputada Piszk Feinzilber: “¿Entendería bien, si interpreto que la situación es peor de lo que habíamos imaginado?”, la respuesta de la Directora Ejecutiva es: “Si. Han transcurrido desde el 2012, hasta la fecha, cuatro años. No se han tomado decisiones y la situación ha empeorado”. (folios 1338 y 1339 tomo 6 del expediente legislativo) Agrega la Diputada Piszk Feinzilber:

“Yo lo que quiero es que quede aquí muy claro, es que la preocupación de nosotros no está basada ni en un capricho” … sino que en que está clarísimo que mientras no se tomen decisiones la situación va a ir empeorando”.

“Sé y nosotros incluso nos habíamos comprometido a que íbamos a esperar a que hubiese un estudio actuarial completo para tomar las decisiones de orden, no sé si la palabra correcta es numérico o no es numérico, pero en cuanto a aportes, pero bueno, creo que está clarísimo que existe una preocupación de nuestra parte, que la Corte debe ser consciente de eso, de que aquí, diay, son todos los costarricenses los que vamos a tener que pagar, si esta cosa se sigue alargando y desde ese punto de vista, nosotros evidentemente como legisladores, que tenemos que tomar una decisión…” ( folio 1343 mismo tomo) En el mismo sentido, la Diputada Guerrero indicó: “Reiterar lo que dijo Álvaro Ramos. Este no es un tema en contra, es a favor de la clase trabajadora. Ese texto sustitutivo mejora, pero no sostiene la sanidad del régimen. Un régimen que va a terminar en el presupuesto nacional de la República, si se quiere la sanidad, un régimen además que no garantiza la expectativa de pensión de las personas que hoy están cotizando o tendrán que entrar a cotizar el doble; igual que el patrono e igual que el Estado. Es decir, va al presupuesto central…” (folio 1754 tomo 8 expediente legislativo) Por otra parte, como se indicó supra, estima la mayoría de la Sala que, ante la comprobaba necesidad pública y legitimidad de intervención de las autoridades, los medios previstos en la normativa impugnada para lograr el fin perseguido son adecuados para alcanzar efectivamente dicho fin. Como se indicó supra, el Instituto de Investigaciones en Ciencias Económicas (IICE) en el oficio IICE-186-2017 citado, se refiere a los cambios efectuados como técnicamente idóneos porque actúan a favor de la solvencia del fondo. Como se explicó, el legislador adoptó una elección intermedia entre los dos marcos recomendados, elección respecto de la que no se ha demostrado que haya implicado una desmejora sustancial y relevante de las condiciones de los participantes del fondo, frente a las ofrecidas en los marcos IICE3 o el IICE4, esto porque como se explicó, lo ocurrido fue un intercambio de unas ventajas por otras, siempre dentro los límites fijados en los marcos propuestos por el ente técnico, y sin que existan en este expediente otros estudios técnicos o peritajes del mismo nivel o equivalentes que con datos precisos y fiables permitan afirmar que -valoradas todas las condiciones y no sólo las escogidas- existía una opción técnica disponible para el legislador, que generaría las mismas garantías de sostenibilidad que se buscaban para el fondo, pero ofreciendo a la vez niveles de protección clara y contundentemente mayores de los derechos fundamentales en juego. Precisamente, la labor del legislador consiste en sopesar los diferentes intereses y necesidades en juego y construir -dentro del espacio ofrecido por el marco técnico, pero también con fundamento en motivos de conveniencia y oportunidad- la estructura normativa que, según su criterio, resulte ser la que mejor se adapta a la finalidad estatal perseguida. Es esa su labor como representantes del pueblo y no debe esta Sala sustituir tal competencia ni la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial. Como bien ha señalado la Corte Interamericana, en temas económicos y presupuestales o de apropiación de recursos, el legislador tiene una amplia libertad de configuración, motivo por el cual en estos casos, los eventuales juicios de proporcionalidad que se hagan, deben tener una intensidad leve, que es precisamente la categoría de derechos en análisis, donde se debe buscar un equilibrios entre los derechos individuales y colectivos para superar el peligro que existía de afectar el patrimonio del conjunto de los afiliados colectivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial poniendo en riesgo la sostenibilidad de los actuales y futuros beneficiarios y potencialmente de las finanzas del Estado, que tenían que asumir a los pensionados y jubilados presentes y futuros si no se lograba equilibrar el régimen.

Los accionantes aportan una serie de ejemplos de afectaciones hipotéticas sobre lo desproporcionadas que resultan las medidas para varios sectores, pero no aportan un estudio actuarial que permita refutar el existente en el expediente legislativo, que sí toma todas las variables en juego (no sólo las seleccionadas), las cuales deben ser valoradas integralmente. Asimismo, con las acciones interpuestas buscan volver al escenario anterior a la reforma, técnicamente desechada expresamente por el IICE en sus diversos estudios y que sí tiene la capacidad de afectar o poner en peligro la sostenibilidad del régimen de pensiones del Poder Judicial como se comprobó con el estudio de Melinsky y el de la Universidad de Costa Rica. Asimismo, la prueba para mejor resolver solicitada por esta Sala a la Junta Administradora del Fondo de Pensiones del Poder Judicial ( ver expediente judicial), demuestra que las medidas adoptadas por el legislador, han sido idóneas para devolverle solvencia al Fondo que ha tenido una recuperación sustancial en los años de vigencia de la normativa impugnada.

En conclusión, a juicio de la mayoría de esta Sala, la Asamblea Legislativa no infringió los principios constitucionales de razonabilidad y proporcionalidad al tomar elementos de los marcos normativos IICE3 e IICE4 y de las comparecencias de las autoridades de la SUPEN y el Ministerio de Hacienda, y construir con ellos, un marco normativo para ajustar todas las necesidades en juego y cumplir la finalidad de remediar los reconocidos problemas que padecía el fondo de Jubilaciones y Pensiones del Poder Judicial y así evitar un daño más grave a los intereses de los agremiados y del interés público, de manera que en ese punto la acción debe desestimase. Incluso, al momento de dictarse la presente sentencia, se ha constatado que el déficit actuarial de régimen se ha reducido de manera significativa, lo que demuestra que las medidas adoptadas fueron necesarias, proporcionales e idóneas.

XXIX.- Redacta la Magistrada Hernández López. Sobre los principios de igualdad y unidad de la seguridad social y las disposiciones del Capítulo I “Prestaciones” de la Ley 9544. Los accionantes reclaman una vulneración del principio de igualdad y de unidad de la seguridad social en relación con el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social y afirman que, a pesar de que parte de la intención con la reforma introducida por la Ley 9544 era que el Régimen de Jubilaciones y Pensiones del Poder Judicial se igualara o, al menos, se acercara lo máximo posible a aquél régimen, más bien lo que se hizo fue alejar considerablemente a los servidores judiciales del sistema de la Caja Costarricense de Seguro Social y de cualquier otro régimen de seguridad social existente en el país. Señalan que con la reforma introducida por la Ley 9544, los trabajadores del Poder Judicial quedan cotizando montos adicionales en al menos 3 rubros que no tienen los trabajadores del país que están afiliados al Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social. Se trata del pago por parte de los jubilados del Poder Judicial de: 1) 5 x 1000 por gastos de administración que hay que pagar a la Junta de Administración del Fondo y que, en principio, representaría aproximadamente un 0,41%, a cargo de trabajadores activos como también por jubilados y pensionados; monto que no se pagaba antes porque la administración del Fondo se hacía por el Consejo Superior del Poder Judicial y Corte Plena, como parte de las funciones legalmente asignadas; 2) 13% de cotización al Régimen de Jubilaciones y Pensiones del Poder Judicial que representaría que se cotiza por los servidores activos, jubilados y pensionados. En este caso la diferencia del aporte es muy superior para los afiliados al Régimen del Poder Judicial, a pesar de que ambas categorías -Régimen del Poder Judicial y Régimen IVM- tienen derecho a soportar las mismas cargas; 3) 5% de cotización para el seguro de salud que se pagará por los jubilado o pensionados mientras que los pensionados por el régimen de IVM, no cotizan para este rubro.

Argumentan los interesados que la suma de los 3 rubros anteriores implicaría que cuando se rebaje del 82% del monto bruto de la jubilación, ésta última quedaría finalmente en un monto real de 66, 83%; en cambio, en el caso de los trabajadores afiliados al Régimen de Invalidez, Vejez y Muerte de la CCSS, aducen que si bien es cierto, la cuantía básica de la pensión oscila entre el 43% y el 52,5% como monto bruto de pensión, también es lo cierto que este régimen tiene 2 incentivos adicionales que se suman a esa cuantía básica: a) el 0,0833% por cada mes cotizado adicional a partir de la cuota mensual número 240 y b) el beneficio por postergación que es un 2,9326% en el caso de la mujer y un 2,7993 % en el caso del hombre. Así las cosas, indican que para trabajadores afiliados al Régimen de Invalidez, Vejez y Muerte de la CCSS (RIVM), en el caso de una mujer que se retire a los 65 años con 35 años de servicio en el RIVM, la cuantía básica de la pensión rondaría entre un 60,9266% y un 70, 4266%, y en el caso de un hombre con esas condiciones, estaría entre un 60,7933% y un 70,2933 %, siendo que, según afirman, al contrastarse estos porcentajes con la cuantía básica de los servidores judiciales de un 66, 83%, se observa que las personas afiliadas al Régimen de Invalidez, Vejez y Muerte quedarían en una mejor situación. Por esto, estiman que es más que evidente que, frente a estos datos, lejos de haberse equiparado ambos regímenes, más bien lo que se hizo fue colocar a afiliados al Régimen del Poder Judicial, en una situación de desventaja frente a los pertenecientes al régimen de la CCSS y, con ello, estiman que se lesiona el derecho a la igualdad y el principio de unidad de la seguridad social.

XXX.Continúa redactando la Magistrada Hernández López. Los intervinientes, señalaron lo siguiente: La Corte Suprema de Justicia de manera general indicó que se hizo atenta instancia ante el legislativo de que se debía tener especial cuidado con las reducciones que se impongan a efecto de que no resulten confiscatorias, sin que se perdiera de vista que una jubilación ordinaria fijada en un 85% -porcentaje que indicaba el texto consultado a la Corte en aquél momento- que soporta las cargas de ley del 15% de contribución al Fondo -que era el porcentaje contenido en el texto consultado en aquél momento-, un 5% al Régimen de la CCSS y un 15% por concepto de renta, por lo que ya sufría una disminución de un 50% -según esos cálculos-, que percibía la persona jubilada cuando se encontraba activa laboralmente, sin tomar en cuenta además que el cálculo no se hizo en ese momento con base en el salario actual sino con una prorrata de los últimos 20 años de labor. La Procuraduría General de la República no rinde informe específico en cuanto a este punto en concreto pero, en términos generales, su representante manifestó que de conformidad con el artículo 73 de la Constitución Política, la administración y el gobierno de los seguros sociales corresponde a la Caja Costarricense de Seguro Social, lo que implica, en principio, que correspondería a esa institución (con independencia de la ley y aún con prevalencia sobre ella), establecer las condiciones que deberían privar en los diferentes regímenes de seguridad social, siendo esa es la situación que impera en el régimen general de invalidez, vejez y muerte, el cual se administra bajo las condiciones que establece, por vía reglamentaria, la Junta Directiva de la Caja Costarricense de Seguro Social. Aduce que, a pesar de lo anterior, en Costa Rica se han creado, por vía legislativa, diversos regímenes especiales de pensiones, sustitutivos del general, cuya existencia ha sido avalada reiteradamente por la Sala Constitucional, pudiendo citarse como ejemplo, la sentencia número 846-92 de las 13 horas 30 minutos del 27 de marzo de 1992, en la cual se dispuso que no es contrario a la Constitución la existencia de regímenes especiales de jubilación o pensión, a condición de que la contribución del Estado como tal sea igual para todos los regímenes, incluyendo los de la empresa privada y que la contribución del Estado como empleador, en los diversos regímenes, no sea superior a la que se impone a los demás empleadores, inclusive los patronos particulares, ni, en todo caso, inferior a la de todos los servidores o trabajadores. Añadió su representante que la Procuraduría General de la República ha indicado que la Asamblea Legislativa tiene no sólo la posibilidad, sino el deber, de adoptar las medidas necesarias para garantizar la sostenibilidad de los diversos regímenes especiales de pensiones sustitutivos del general mediante la aprobación de las leyes que se requieran para el logro de ese objetivo, siendo que, en esa línea, la Procuraduría ha sostenido que la administración de cualquier régimen de seguridad social requiere flexibilidad para orientar adecuadamente los recursos limitados de que dispone y que esa flexibilidad se afecta cuando se inhibe al legislador -o a quien tenga competencia para realizar cambios en las normas que regulan el tema- para modificar tanto las condiciones iniciales, como las prestaciones en curso. Argumenta que, partiendo de lo anterior, no es posible admitir que se petrifiquen las normas que establecieron las condiciones de un determinado régimen, pues ello podría llevar incluso al colapso del sistema de seguridad social de un país, lo cual perjudicaría no sólo a las personas que ya han alcanzado la condición de pensionados, sino también a quienes tienen expectativas justificadas de obtener en el futuro (cuando surja alguna de las contingencias protegidas) prestaciones económicas de la seguridad social. Por su parte, la Presidenta de la Asamblea Legislativa manifestó que se está en presencia de regímenes distintos lo cual es jurídicamente factible, siendo relevante que dentro de cada régimen se atienda a reglas claras y ajustadas a los parámetros constitucionales y legales aceptables y, en ese tanto, no existiría infracción al principio de unidad de la seguridad social, lo cual no puede aparejarse a su homogenización.

XXXI.- Continúa redactando la Magistrada Hernández López. Esta Sala recuerda que el contenido del principio de igualdad establecido en el artículo 33 de la Constitución Política significa que 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, acordándose en principio, un trato igual a situaciones iguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Se ha indicado también que la exigencia de igualdad no deslegitima un trato diferenciado, pero para determinar si realmente se justifica una distinción, 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 (ver en este sentido la sentencia No. 5061-94 de las 17 horas 34 minutos del 6 de septiembre de 1994). De allí que no 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, sólo es lesionada cuando una desigualdad está desprovista de una justificación objetiva y razonable lo cual obliga a una valoración de su 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. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva (ver sentencia No. 1770-94 de las 9 horas 18 minutos del 15 de abril de 1994).

Con base en lo dicho, en criterio de la Sala, no llevan razón los recurrentes en cuanto a este reclamo primero porque no existen elementos probatorios de que la intención de legislador se dirigía a homogenizar el Régimen de Jubilaciones y Pensiones del Poder Judicial con el de Invalidez, Vejez y Muerte de la CCSS, el cual es totalmente diferente en su naturaleza, en cantidad de cotizantes, aportes patronales, obreros beneficiarios etc, y porque- aun cuando ello fuera cierto- el resultado final del legislador es claro en cuanto a su voluntad de que exista un régimen exclusivo para los trabajadores del Poder Judicial, lo cual es consecuente con la inclinación que se desprende de los accionantes de mantener vigente y proteger su régimen, así como también con la vocación de las autoridades superiores del Poder Judicial y de los propios estudios técnicos del IICE, de propiciar las condiciones necesarias para que el Régimen de Jubilaciones y Pensiones del Poder Judicial continúe funcionando y sea robusto así como solvente. Ahora bien, está claro para este Tribunal que esa decisión de mantener un régimen de jubilaciones especial, independiente y diferente al básico, conlleva un costo asociado y origina consecuencias que deben ser asumidas por sus afiliados, las cuales por el simple hecho de ser diferentes no necesariamente implican discriminación, vulneración del principio de igualdad o del principio de unidad de la seguridad social. Desde esta perspectiva, el que se establezcan montos de cotización y cargas diferentes para los regímenes, obligaciones o no de seguir cotizando luego de adquirido el derecho de jubilación, y condiciones diversas para que se le otorgue el derecho a una persona, es el resultado de la necesidad de tomar en cuenta las particularidades y pluralidad de factores que tienen que ver con las condiciones laborales y la configuración del conjunto de participantes en el fondo (o la disparidad en los aportes patronales), así como con las prestaciones que se pretenden obtener en el retiro, o bien en atención a las políticas sociales y económicas que puedan intervenir en un momento determinado. Sobre el particular, la Sala estima que, si el fin primordial del constituyente fue mantener los seguros sociales para fortalecer la seguridad social, no hay razón para cuestionar la existencia de pluralidad de regímenes, siempre que, como lo indicó la Procuraduría, se cumplan criterios de igualdad en la que hace a los aportes estatales. De ese modo es constitucionalmente aceptable que exista una diferencia entre el régimen de pensiones de la Caja Costarricense del Seguro Social y el del Poder Judicial, por responder su promulgación a distintas necesidades y condiciones que tornan impropia su comparación simple en términos de rebajas, aportes obreros y perfil de beneficios, sin sopesar también las diferencias entre el número de cotizantes, topes, cobertura de derechos adquiridos y otras condiciones que los hacen diferentes. También cabe agregar que es público y notorio, por haber sido informado públicamente por las propias autoridades de esa institución, que el régimen de pensiones de la Costarricense del Seguro Social presenta importantes amenazas en su estabilidad financiera y que en respuesta a ello, se están considerando cambios en las requisitos de elegibilidad y al perfil de beneficios de modo que también desde este punto de vista, la comparación que plantean los accionantes pierde peso y relevancia para servir de sustento a una declaración de inconstitucionalidad por desigualdad, como lo pide. Así las cosas, la Sala no considera que la Ley 9544 haya vulnerado los principios de igualdad y de unidad de la seguridad social en los términos planteados por en estas acciones de inconstitucionalidad. Por consiguiente, el reclamo debe declararse sin lugar.

XXXII.- Redacta el Magistrado Araya García. Sobre la afectación al derecho fundamental a la jubilación derivada de los cambios en las condiciones de elegibilidad en el Capítulo I “Prestaciones” de la Ley 9544 para que los trabajadores del Poder Judicial puedan jubilarse. En este punto, los accionantes argumentan que se está haciendo nugatorio el derecho fundamental a la jubilación al haberse aumentado la edad de retiro, sobre todo al exigirse ahora contar con un mínimo de 20 años de servicio en el Poder Judicial para poder jubilarse bajo el régimen del Poder Judicial, pues en muchos casos se obligaría a los servidores judiciales a laborar más allá de los 65 años para poder hacerse acreedor a una jubilación. Adicionalmente explican que, con la reforma, no se trata solamente de que se haya extendido 5 años el tiempo de servicio en el Poder Judicial -de 30 a 35 años-, sino que se están generando situaciones particulares que consideran lesivas de derechos fundamentales: a) por ejemplo, una persona que ingresó a laborar al Poder Judicial de 20 años, para poder jubilarse de conformidad con los requisitos establecidos en la Ley 9544, ahora deberá trabajar 45 años, sobrepasando con creces los 30 años de cotización que indican los Convenios 102 y 128 de la OIT; b) al exigirse ahora tener al menos 20 años de servicio en el Poder Judicial pero además cumplir con 35 años en total de laborar en el sector público, se tiene que cualquier persona que ingrese a laborar al Poder Judicial después de los 46 años de edad, se podría pensionar hasta después de superar los 65 años; c) en caso de un trabajador del Poder Judicial que falleciera antes de cumplir esos 20 años de servicio mínimo en esa institución, los beneficiarios no podrían optar por una pensión por orfandad o supervivencia debido a que no se cumple con ese requisito; d) no se pueden imponer por igual nuevas reglas para obtener la jubilación a una persona que está a 5 o 10 años de jubilarse, que a una persona que está iniciando labores o que se encuentra a 30 años de jubilarse al momento de que entre a regir una reforma; e) la Ley anterior a la 9544 establecía que al cumplirse 30 años de servicio -que implica un monto superior a las 300 cuotas que exige el régimen IVM de la Caja Costarricense de Seguro Social-, la persona podía solicitar una jubilación anticipada sin importar la edad, por lo que venía trabajando y proyectando la vida a futuro cercano, pero ahora, al cambiar de manera tan drástica el sistema de jubilaciones, esa misma persona deberá cumplir con 5 años más de servicio pero también llegar a los 65 años de edad para obtener una jubilación completa -ahora muy recortada- pues una jubilación anticipada pareciera no ser una opción debido a que reduce considerablemente el ingreso; e) en el caso de un Policía Judicial, un Juez Penal, un Fiscal, un Patólogo o un Trabajador Social -solo para poner algunos ejemplos- que antes se podían pensionar al cumplir 55 años de edad luego de 30 años de servicio, ahora se les debe obligar a laborar diez años más para cumplir con 65 años de edad, a pesar de que en su trabajo diario cuentan con una enorme carga emocional, lo que podría afectar -de manera sumamente negativa- el nuevo panorama al que se les está sometiendo de manera abrupta por tener que laborar 10 años más. Argumentan los accionantes que todos estos cambios, y otros más que se derivan de la aplicación de la Ley 9544, se hicieron sin contar con estudios técnico-científicos, pero no de tipo contable como los productos IICE, sino de tipo demográfico y sociológico que permitan determinar, a ciencia cierta, la posibilidad de que Jueces de todas las materias que tramita el Poder Judicial, así como Policías Judiciales, personal administrativo, Fiscales, Defensores Públicos, entre otros, puedan continuar laborando -al tener que extender los años de servicio para jubilarse por la reforma-, sin afectar el servicio público, pero sobre todo sin generar daños a su salud física y mental. Aquí resaltan que muchos de estos servidores judiciales, por encontrarse muy cerca de obtener su jubilación, ya tenían un plan de retiro para el que se habían venido preparando desde hacía varios años y ahora, con la reforma, tienen que modificarlo, considerando esos accionantes que ello lesiona la expectativa de finalizar una carrera judicial. Añaden que, además de lo anterior, para los casos de personas que tendrán que laborar más allá de los 65 años a fin de obtener el derecho a la jubilación, se está incumpliendo con lo indicado en Convenios de la Organización Internacional del Trabajo que indican que no se puede superar la edad de retiro más allá de los 65 años, como lo dispone el Convenio No. 102 de la OIT en su artículo 26 inciso 2, así como el Convenio 128 también de la OIT en su artículo 15, que en lo que interesa, señala:

“La edad prescrita no deberá exceder de sesenta y cinco años, pero una edad más elevada podrá ser prescrita por la autoridad competente, habida cuenta de criterios demográficos, económicos y sociales apropiados, justificados por datos estadísticos.

3. Si la edad prescrita fuera igual o superior a sesenta y cinco años, esa edad deberá ser reducida, en las condiciones prescritas, para las personas que hayan estado trabajando en labores consideradas por la legislación nacional como penosas o insalubres a los efectos de la prestación de vejez”.

XXXIII.Redacta el Magistrado Araya García. Sobre este tema no existe criterio específico emitido por parte de la Procuraduría, que en su informe reitera la potestad que tiene el legislador de realizar los ajustes necesarios para que los fondos previsionales sean sustentables y puedan así brindar los beneficios prometidos a todos sus participantes. Lo mismo ocurre con la Asamblea Legislativa, que considera que la decisión tomada estuvo fundada en los estudios técnicos aportados. La Corte Suprema explicó que en ese tema remite a lo señalado a la Asamblea Legislativa dentro del expediente legislativo, en el sentido de que todos estos cambios representan un desincentivo para el ingreso de personas profesionales valiosas al Poder Judicial que, atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral, al afectarse la carrera judicial, fiscal, de la Defensa Pública y del personal en general. Aunado a ello se pronunció indicando que se va a afectar la renovación del personal que logra permanecer en el Poder Judicial, de manera que se va a contar con personas funcionarias de edad avanzada que se van a mantener laborando únicamente por necesidad y la disminución que sus ingresos sufrirían en caso de jubilarse; la población judicial va a estar ante una encrucijada porque tiene el deseo de optar por la jubilación y la motivación de retirarse a descansar, pero está colocada en una condición en la que debe valorar su situación económica. Argumentó además que todo ello le resta competitividad al Poder Judicial en el mercado laboral y ello va a incidir en la calidad de la Administración de Justicia. Consideró además que la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica pues se está ante derechos fundamentales irrenunciables asociados a una persona trabajadora que durante sus años de servicio ha cotizado para un régimen con una expectativa de contar con una jubilación digna que le permitiera satisfacer sus necesidades y gozar en sus años de retiro de calidad de vida, pero ahora, la imposición derivada de la nueva ley, afectará grupos de población vulnerable a pesar de que se trata de un colectivo que requiere de mayor protección por parte del Estado.

XXXIV.Redacta el Magistrado Araya García. Se afirma que la reforma ha impuesto a los participantes presentes y futuros del fondo un conjunto de condiciones de elegibilidad que hacen que se obstaculicen gravemente sus posibilidades de disfrutar de una jubilación adecuada cuando cesen en sus labores como jueces, policías, fiscales, defensores y trabajadores judiciales en general. Al respecto nota el Tribunal que los alegatos de la lesión al derecho a una jubilación apropiada y justa, se construyen haciendo una comparación entre el sistema anterior (que los accionantes parecen avalar) y el sistema que se introdujo con la ley 9544. Por tanto, cabe recordar cuales fueron los cambios que -en materia de elegibilidad- sufrió el régimen con el cambio normativo, iniciando con la jubilación ordinaria cuya edad se aumentó en 3 años y los años de servicio que aumentaron en 5 años; también se modificó la cantidad de esos años que deben haberse laborado para el Poder Judicial que pasó de ser “los últimos 5 años” (artículo 231 derogado) a 20 años laborados dentro del Poder Judicial como mínimo. En lo referido a la jubilación anticipada, los cambios se resumen así: se varió la jubilación anticipada con pago proporcional por cumplimiento de años de servicio, pasando de 30 años de servicio a 35, siempre que se cumpla con una edad de retiro mínima se fijó en el caso de hombres, en 62 años y en el caso de mujeres en 60 años; igualmente se modificó la jubilación anticipada con pago proporcional por cumplimiento de la edad que pasó de 60 años y al menos 10 años de servicio (artículo 225 derogado) a 65, con una exigencia de al menos 20 años de servicio en el Poder Judicial según el texto actualmente vigente. Además, se reajustó a la baja el monto del pago jubilatorio que pasó del 100 por ciento del promedio de los últimos 24 salarios a ser el 82 por ciento del promedio de los últimos 240 salarios.

Sobre tales variaciones, los accionantes elaboran una serie de ejemplos de situaciones que consideran injustas y contrarias a la normativa internacional pero lo cierto es que los ejemplos planteados no resultan suficientes para tomar una decisión de anulación de la norma como la que se pide pues sucede que no se aportan datos reales y actuales por perfil de edades de ingreso al Poder Judicial como para verificar por ejemplo cuál ha sido el comportamiento de los participantes del fondo respecto del empleo de la figura de la jubilación anticipada, o bien si el caso de la persona que ingresa al servicio del Poder Judicial con 46 años, se repite con suficiente frecuencia como para concluir que el sistema, en su conjunto se torna abiertamente injusto al exigirle más años de servicio propiamente en el Poder Judicial; igualmente, tampoco en relación con los años de servicio, se aportan los datos técnicos capaces de desvirtuar el informe actuarial que harían entender que una gran cantidad de personas deberían quedarse mucho más allá de los 65 años para cumplir con los 20 años de servicio efectivo dentro del Poder Judicial. Tampoco resulta válido comparar las supuestas expectativas de alcanzar una pensión anticipada con la ley anterior, con las condiciones para adquirir la pensión ordinaria en el nuevo régimen porque ello resulta incongruente por tratarse de casos cualitativamente diferentes. No puede perderse de vista que la lógica que actualmente sustenta los regímenes previsionales como el que se analiza apunta a lograr -a lo largo del tiempo- condiciones económicas suficientes para brindar protección a los participantes cuando su capacidad laboral se vea afectada por los efectos de la vejez u otra contingencia; y esa es la razón por la que las autoridades estatales deben fijar parámetros que aseguren un suficiente aprovechamiento del potencial laboral y productivo y un aseguramiento de condiciones dignas para cuando ese potencial decline debido a la edad. De ese modo, para el Tribunal la centralidad de esta cuestión está en que las modificaciones para la elegibilidad en las distintas modalidades, responde a una necesidad de compromiso entre las condiciones particulares de las labores que lleva a cabo el Poder Judicial y la necesidad de que el sistema previsional para la protección de sus servidores cuando lleguen a la vejez, pueda ser sostenible financieramente como un todo, a través del tiempo.

Como se dijo, la Sala comparte la tesis de que la creación de un régimen de jubilaciones separado para el Poder Judicial ha sido una pieza clave para el relevante papel que este órgano ha cumplido dentro del Estado social y democrático de Derecho en nuestro país; sin embargo, ello no puede servir para petrificar una situación que, como se ha tenido por demostrado, amenazaba financieramente la estabilidad del fondo del Poder Judicial, los derechos de sus beneficiarios y del propio Estado costarricense, el cual ha provisto buena parte de los fondos para construir dicho régimen. De esa manera, frente a la emergencia económica que imponía una modificación, los cambios realizados representaron -para la generalidad de los participantes que han hecho carrera judicial y aspiran a una jubilación ordinaria- un retraso de 3 años respecto las exigencias de la ley anterior, y un retraso de 5 años en la gran mayoría de los demás casos, para aquellos que aspiran a una jubilación anticipada. Como es claro, el diseño no podría tomar en cuenta todas, las posibles particularidades que puedan darse en casos concretos, pero como se indicó, en la generalidad de los casos las modificaciones de 3 y 5 años respectivamente, están sustentadas en estudios técnicos y para la generalidad de personas no es una aguda agravación de su situación de elegibilidad. Está claro que la hipótesis general propuesta por los accionantes de que los trabajadores judiciales en general y solo por el hecho de laborar en esa institución, están sometidos a una carga y un desgaste claramente diferenciable de otros grupos de trabajadores, no se apoya en prueba aportada al expediente y tampoco existe demostración de que los ejemplos que se ofrecen alcanzan tal grado de reiteración que inciden en la justicia general del sistema con una magnitud tal que pueda decirse que se han lesionado derechos fundamentales de la generalidad de sus participantes, lo cual no quiere decir que no existan grupos dentro de la generalidad de trabajadores que sí requieran medidas especiales por el tipo de labor que tienen, pero ello requiere de estudios técnicos específicos para cada grupo y determinación de su impacto actuarial en el sistema. Las variables contenidas en el estudio actuarial que sirvió de base a la reforma impugnada, además de ser un estudio integral, es un estudio que valora los efectos en el tiempo a 100 años de las variables analizadas. Ejemplos específicos, sin proyección ni integralidad, estima la Sala no tienen el peso de desvirtuar una prueba técnica de esta magnitud. Para poder refutar esta prueba, se requiere un informa actuarial equivalente.

Agreguemos a esto que el diseño original que fue modificado por la ley 9544, data del año 1993, es decir, de una fecha anterior al cambio sustantivo de paradigma acontecido con la promulgación de la Ley de Protección al Trabajador número 7983 del 16 de febrero de 2000. Con esta última norma se repensó el diseño previsional general del Estado costarricense para la protección de las personas trabajadoras en su vejez y se estableció un sistema de tres pilares, siendo el primero el régimen básico de pensiones, (en este caso, el régimen de Jubilaciones y Pensiones del Poder Judicial) financiado de forma tripartita entre el trabajador, el patrono y el Estado; un segundo pilar constituido por un régimen de pensiones complementario de cuenta individual financiado por el trabajador y el patrono y finalmente un tercer pilar conformado por los planes de ahorro a largo plazo del trabajador. Así las cosas, esa complementariedad liberó a los regímenes básicos de la tarea de entregar, por sí mismos, prestaciones amplias y completas, pues las necesidades de los jubilados se atenderán con recursos de las tres fuentes citadas. Por esta razón, y frente a la necesidad de revisar las características del régimen básico aplicable en el Poder Judicial para lograr su sustentabilidad, cobra sentido el intento de adaptarlo al nuevo sistema, de modo que la suma final de todos los pilares pueda ser el logro de prestaciones económicas suficientes para lograr una jubilación básica digna y que, -según el empeño que ponga el propio interesado- pueda engrosarse para asimilarla más o menos a los niveles de vida disfrutados durante su vida laboral activa. De esa manera, una posible constatación, en algún caso o pequeños grupo de casos específicos, de algún vacío o solución aparentemente injusta por incompleta, a lo interno de este régimen básico y de su normal operación, no puede -por sí misma- convertirse en motivo para desarticular toda la estructura sin comprobarse debidamente al mismo tiempo -lo cual no han hecho los accionantes- la imposibilidad del sistema general de seguridad social, como un todo, de proveer una solución que atienda apropiadamente los derechos de los afectados. En conclusión, lo que procede es declarar sin lugar el reclamo planteado en tanto que los cambios en las condiciones de elegibilidad no se ha demostrado técnicamente que hayan afectado en forma desproporcionada el derecho de los participantes en el fondo de Jubilaciones y Pensiones del Poder Judicial, de obtener una jubilación que contribuya, junto con los demás componentes del sistema previsional, a la consecución de su derecho de una vejez digna. De hecho, de no haberse hecho la reforma, los derechos de todos los beneficiarios del Régimen se verían afectados en forma más gravosa para ellos y las finanzas públicas. Asimismo, volver a las condiciones de la ley anterior, lo cual sería la consecuencia de la anulación de la normativa impugnada, implicaría volver a la insostenibilidad del régimen. Tampoco se ha demostrado en el expediente que las condiciones del régimen de la Caja Costarricense de Seguro Social, que públicamente se ha anunciado que tiene a su vez, problemas de sostenibilidad financiera, sea una mejor alternativa técnica que la adoptada por el legislador, ya que, en este aspecto, tampoco se aportan los estudios técnicos que apoyen esa tesis.

XXXV.- Redacta la Magistrada Hernández López. Sobre la infracción al principio de independencia judicial con los cambios en las condiciones para la jubilación de los servidores judiciales. Un grupo de los accionantes ha planteado como parte de sus reclamos, la existencia de una lesión al principio de independencia judicial, con la emisión de la Ley número 9544 impugnada. Un aspecto de sus argumentos pasa por la presunta afectación del artículo 167 Constitucional y en general de la independencia que la Constitución Política le atribuye al Poder Judicial en cuanto institución. Tales reclamos se analizaron con amplitud al revisar los reclamos de procedimiento y en particular la supuesta lesión al citado artículo 167 de la Carta Fundamental. Sin embargo, resta pronunciarse sobre los alegatos referidos a la afectación de la garantía de independencia de la específica labor de juzgar que el Estado debe asegurar, en consonancia no solo con nuestra Carta Fundamental sino con las disposiciones contenidas en diversos instrumentos internacionales sobre derechos humanos ratificados y vigentes en nuestro país. El tema ha sido planteado por parte de los accionantes como una afectación indirecta a la independencia que deben disfrutar los juzgadores en su labor de la resolución de controversias apegados solo al derecho, pues se sostiene que los cambios propiciados en su régimen jubilatorio, afectan sus condiciones de trabajo, haciéndolos más susceptibles a presiones indebidas.

XXXVI.- Continúa redactando la Magistrada Hernández López. El Tribunal comienza reconociendo que efectivamente para el concepto de independencia judicial se han definido dos dimensiones: la institucional (relativa al Poder Judicial) y la individual (también llamada personal o subjetiva) que pretende hacer visible y vigilar la dimensión subjetiva, relativa a la figura del juez (entendido este término en sentido general como equivalente a juzgador) y en relación con todos los factores que le rodean y que, a su vez, permiten garantizar el cumplimiento pleno y efectivo del principio. En esta línea de pensamiento, la independencia judicial se refiere primordialmente a la función del juez como servidor público de realizar su labor de tutela y realización del Derecho objetivo, sin subordinación ni sumisión a otra cosa más que la Ley y el Derecho, ajeno a órdenes o instrucciones de terceros, sean estos particulares, órganos públicos u otros órganos jurisdiccionales. Pero, además, el principio abarca las condiciones que rodean esta labor como por ejemplo el estar sometido a un escalafón profesional o a un régimen disciplinario y sancionatorio, y también deben incluirse aspectos de carácter personal y económico. La Sala se ha decantado por este enfoque como se demuestra en la resolución 2018-5758 que evacuó la consulta precisamente sobre el texto que se convirtió en la ley 9544 discutida. Allí se dijo:

“Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, independientemente de si el régimen de pensiones es específico para los jueces o no. De hecho, no todos los países tienen regímenes particulares para los jueces, pero sí se esmeran las democracias más consolidadas de cuidar la judicatura como pieza clave de la estabilidad del Estado de Derecho. Los países que han apostado por la fuerza de la ley y no de las armas para su estabilidad, dependen de la calidad de los jueces para tener calidad de democracia, pues éstos son los guardianes estratégicos del estado de derecho. En el caso de nuestro país, como bien lo ha señalado el Estado de la Nación, el Poder Judicial tiene la particularidad de que es un conglomerado de instituciones muy relevantes para el estado de derecho ( Fiscalía, Policía Judicial, Defensa Pública y Judicatura) y fue su fortaleza la que permitió en gran parte el desarrollo y consolidación de la democracia en el siglo XX en nuestro país. Así consigna el primer informe del Estado de la Justicia al señalar:

“El Poder Judicial ha sido clave para la democracia costarricense.” “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.” En ese sentido fue un acierto del legislador, dotar de garantías e incentivos a la administración de justicia costarricense, porque sólo así podía materializarse el estado de derecho que surgió de la Segunda República, el cual dependería para su éxito, de un robusto régimen de legalidad y no ya -como se dijo-, de la fuerza de las armas, camino por el que habían optado la mayoría de los países del mundo, especialmente los latinoamericanos”.

Por lo demás, esta posición jurisprudencial coincide claramente las principales fuentes internacionales sobre derechos humanos, como se ejemplifica en los denominados “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, cuyo principio onceavo señala:

“Condiciones de servicio e inamovilidad. 11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas.” Resulta demostrado entonces que los aspectos relativos a las pensiones y jubilaciones, podrían llegar a incidir en la estabilidad de la judicatura y por ello resulta constitucionalmente apropiado que esta Sala pueda revisar lo actuado por el legislador desde esta perspectiva. En este aspecto de nuevo debe reiterarse lo que ya se expuso en la sentencia 2018-5758:

“(…) Lo que está claro es que la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios, y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial, pero claramente, no fue creado como un elemento intrínseco de la independencia judicial ( aspecto medular de la protección constitucional del 167 cuando habla de “estructura y funcionamiento), la cual se sustenta constitucionalmente en otros factores, como la existencia de una carrera que garantiza la objetividad en la selección de los jueces, basada en criterios de idoneidad y estabilidad, la independencia económica y política del órgano, entre otros; pero bien pudo el legislador optar por un régimen único para todos los empleados públicos o trabajadores en general, sin que pudiera afirmarse que eso le resta independencia al órgano” Y agregó que:

“No obstante, no puede afirmarse -desde la perspectiva de la mayoría de la Sala-, que el régimen de pensiones del Poder Judicial, sea parte del contenido esencial de la independencia judicial o que afecte su estructura y funcionamiento, aunque sí, como se dijo, ha funcionado históricamente como su necesario complemento y por el bien de la democracia costarricense, debe velarse porque sea los más estable y digno posible”. (el subrayado no está en el original) XXXVII.- Continúa redactando la Magistrada Hernández López. A partir de lo que ha sido expuesto, la interrogante que se plantea es si, como lo sostienen los accionantes, los cambios y reformas introducidos en el régimen de Jubilaciones y Pensiones del Poder Judicial, alcanza a poner en riesgo la dignidad y las condiciones de servicio de los administradores de justicia costarricense, como para decir que se afecta de forma indubitable la independencia en el ejercicio de su labor de impartir justicia. Para el Tribunal la respuesta a dicha cuestión es negativa, por entender que -tal y como se sostiene a lo largo de esta decisión- los cambios operados resultaban necesarios justamente para lograr el sostenimiento del régimen de jubilaciones y pensiones especial para los servidores judiciales y cuya debacle realmente hubiera significado una seria amenaza a la estabilidad económica de los administradores de justicia. Igual de importante para desechar el reclamo resulta ser el hecho de que las modificaciones legislativamente establecidas no resultan de arbitrios infundados de los legisladores, sino que fueron tomadas con fundamento en criterios técnicos, con amplia participación de las personas interesadas y no fueron ni intempestivos caprichosos y se basan en criterios técnicos. En ese aspecto, la Sala considera que el nuevo régimen previsional, en cuanto primer pilar del más amplio entramado de seguridad social que cubre a los administradores de justicia de forma similar a los demás trabajadores, les asegura un espacio de seguridad económica. Por todo ello, lo procedente es declarar sin lugar la acción también en este aspecto.

C. RECLAMOS RELATIVOS CAPITULO III TITULADO “EL FONDO” DEL TÍTULO IX “RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL” DE LA LEY ORGÁNICA DEL PODER JUDICIAL

XXXVIII.Redacta el Magistrado Araya García. Reclamos relacionados con los rebajos al pago por jubilación y pensión legalmente dispuestos. La Ley 9544, incluye un capítulo llamado “el Fondo” que recoge las reglas relativas a su financiamiento y otras disposiciones relativas a los dineros que llegue a administrar. Los accionantes, consideran que existen dos normas de dicho capítulo, los numerales 236 y 236 bis que son inconstitucionales según se explicará. En cuanto a la primera, su texto señala:

“Artículo 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos:

• 1)Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente.
• 2)Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores.
• 3)Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS).
• 4)Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo.

En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución obligatoria establecida en la presente ley ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

La norma recoge una contribución tripartita en la que participan el Estado como tal, (en condiciones de igualdad con lo aportado al régimen de la CCSS), el Estado como patrono (Poder Judicial) y un tercer aporte de un 13 por ciento llamado “aporte obrero” a cargo de los participantes del Fondo, es decir los trabajadores activos, los jubilados y los pensionados. Se agrega también una regla para los beneficiarios actuales y futuros del fondo (jubilados y pensionados) consistente en fijar un tope de 55 por ciento del monto bruto de la jubilación o pensión como suma máxima para las deducciones de origen legal. Con ello se crea un piso del 45 por ciento del monto bruto de la jubilación, que será el monto mínimo que se reciba, una vez hechas todas las deducciones legales. Interesa observar que para el caso general de la jubilación o pensión a cargo del fondo, la sumatoria actual de las deducciones de rango legal aplicables incluye -tanto para trabajadores activos como para jubilados y pensionados, el 13 por ciento de aporte al Fondo; lo correspondiente al seguro de salud que está fijado actualmente en un 5,25 por ciento; un 0,50 por ciento de cuota de administración del fondo y un porcentaje variable según el importe del monto bruto de jubilación, por pago del impuesto al salario establecido en la Ley del Impuesto sobre la Renta número 7092. Los accionantes explican que, según el artículo 236 discutido, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, no podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario, lo que para ellos significa que, el monto máximo de jubilación al que se podría aspirar por parte de un servidor judicial, sería en ciertos casos de menos de un 45% del último salario, toda vez que este numeral permite que entre unos y otros rebajos se llegue hasta el 55% de la prestación jubilatoria, con lo cual consideran que lo que finalmente recibiría el jubilado o pensionado, sería una cifra ruinosa que, además, viola los principios de proporcionalidad y razonabilidad por cuanto tampoco está en relación con el aumento en la edad de retiro y el número de años que el trabajador debe laborar para finalmente obtener una jubilación muy inferior al último salario que devengaba. Consideran los accionantes que la nueva forma de cálculo de la jubilación y todos los rebajos aplicados, la aminoran a tal grado que se constituye en “una reducción ruinosa, pauperizante e indigna no solo para las personas que se desempeñan como jueces de la República sino para todas las personas que trabajan en el Poder Judicial”, completamente contraria a los instrumentos de derecho internacional que apuntan a que los Estados deben garantizar a los jueces una remuneración “acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva” el cargo, pero también propiciar pensiones y condiciones de jubilación adecuadas, igualmente ajustadas a la responsabilidad del cargo y el puesto de trabajo en el que se desempeñó durante su vida profesional. Añaden además que esta norma es cuestionable porque permite que el cálculo de rebajos se haga hasta el límite máximo del 55% del monto bruto de jubilación fijado y no respecto de los salarios brutos utilizados como base para el cálculo de la jubilación. Sobre este particular, estiman que la Ley 9.544 autoriza confiscar hasta un 55% del monto de pensión en curso de pago, sin que para su promulgación se haya contado con estudios técnicos que respaldaran la razonabilidad y proporcionalidad de la medida, lo que implica que, desde el punto de vista constitucional, la ley cuestionada es inconstitucional por no cumplir con los parámetros necesarios en el proceso de formación de las leyes y que la Sala ha considerado como indispensables.

XXXIX.- Redacta el Magistrado Araya García. La Procuraduría General de la República manifestó que atendiendo lo dispuesto en esa norma, no es posible que el monto de las deducciones legales que se apliquen a la pensión de un funcionario judicial supere el 55% del monto bruto de la prestación; si ello llegare a ocurrir, ya no se estaría en presencia de un problema de constitucionalidad de la norma, sino de su aplicación, lo cual considera que no es revisable en la vía de la jurisdicción constitucional. Refiere nuevamente a que la razonabilidad, proporcionalidad y justicia de la reforma legislativa a un régimen de pensiones debe tener como parámetro los datos que arrojen los estudios técnicos, que es donde se tiene que reflejar la magnitud de los cambios a realizar y en este caso considera la Procuraduría que los cambios operados en el régimen de pensiones del Poder Judicial, cuentan con el respaldo técnico necesario para afirmar su ajuste al Derecho de la Constitución. La Corte Suprema de Justicia se pronunció indicando que para los rebajos que se autoricen para una jubilación, se debe de tener en cuenta la Recomendación No. 43 de la Organización Internacional del Trabajo según la cual, la jubilación o pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de la vida y la situación social durante el período de actividad profesional”, es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. Además señaló que la contribución para el fondo se incrementó a un 13%, manteniendo ese porcentaje para el aporte que deben hacer las personas pensionadas y jubiladas a diferencia de otros regímenes de jubilaciones donde una vez jubilada o pensionada la persona, no puede seguir cotizando; condición que debe ser valorada de manera integral con el resto del articulado en donde también se establecen montos que disminuyen el porcentaje aprobado para la jubilación con motivo de los rebajos por cotización, contribución especial, solidaria y redistributiva, además del impuesto sobre la renta. Por su parte, la Presidenta de la Asamblea Legislativa se refiere en términos generales a que se trata de una de las reformas introducidas al Régimen de Jubilaciones y Pensiones del Poder Judicial que se sustenta en los estudios técnicos efectuados y, por ende, no ha sido una decisión arbitraria del legislador.

XL. Redacta el Magistrado Araya García. Para decidir sobre este reclamo, la Sala toma en consideración que los accionantes recurren para su argumentación a un parámetro cuya legitimidad y validez omiten sustentar debidamente. De ese modo, el afirmar simplemente que el monto de la jubilación se torna ruinosa y lesiva de la dignidad de los jubilados porque la prestación puede reducirse más allá del 55 por ciento del último salario percibido o del salario de referencia, no puede tener la virtud de convencer a este Tribunal de la inconstitucional de la reforma impugnada. Para comenzar, se observa que con el uso del concepto de “el último salario” parece buscarse vincular estrechamente la prestación jubilatoria con el último nivel de ingreso del jubilado, de modo que una rebaja de ese nivel en más del 50 por ciento representaría una excesiva disminución de sus recursos disponibles; sin embargo, en primer lugar, nuestros sistemas previsionales, incluido el del Poder Judicial, no han empleado nunca el último salario como equivalente al pago por jubilación, de modo que debieron los accionantes iniciar demostrando que constitucionalmente el uso de tal parámetro resulta apropiado en este caso, lo cual no ha sucedido. La mayor aproximación a ello surge de la invocación del texto de la recomendación número 43 de la OIT, según se planteó en su momento por parte de la Corte Suprema de Justicia en el trámite del proyecto legislativo, en el sentido de que la jubilación debe fijarse tomando en cuenta el “coste de la vida y la situación social durante el período de actividad profesional”, pero esta Sala observa que, aparte de que se recomendaba únicamente “tomar en cuenta” la situación social del jubilado durante su vida laboral, la consulta del sitio oficial de la Organización Internacional del Trabajo en internet (www.ilo.org) permite afirmar que tal recomendación y sus criterios fueron emitidos en el año 1933, pero fueron retirados luego por acuerdo de la Conferencia Internacional del Trabajo en el año 2004, al entenderse que sus desarrollos habían sido atendidos con la emisión del Convenio 128 de la OIT de 1967 (no ratificado por nuestro país), y cuyo texto sigue de cerca la línea establecida en el Convenio 102 de la OIT de 1952 (este sí debidamente ratificado Costa Rica) el cual ha sido de hecho empleado por la Sala en la decisión de estos temas. A partir de lo anterior, no estima el Tribunal que dicha recomendación número 43 de la OIT y sus contenidos, resulten una fuente válida para la resolución del presente caso, frente a lo dispuesto por el Convenio 102 de la citada organización que sí forma parte de nuestro ordenamiento jurídico, con todo lo cual la citada recomendación pierde sustento incluso como guía para definir los alcances de las afectaciones legislativas a los pagos por jubilación. En segundo lugar, los accionantes hablan de altos porcentajes de afectación respecto del último salario, pero -aparte de lo dicho respecto de tal parámetro- lo cierto es que no se aporta prueba técnica referente al impacto y afectación real de la reforma legal impugnada, dado que todas las deducciones menos una, son preexistentes a la reforma, y los únicos cambios nominales que la Sala aprecia son: el paso del 11 al 13 por ciento en la cuota obrera y el cargo de un 5 por mil (es decir un 0,5%) para atender los gastos de administración del Fondo, de modo que -en su esencia- la estructura de los rebajos no es mayormente diferente de la aplicable a los participantes del fondo durante su vida laboral y tampoco frente a la situación legal anterior que los accionantes reivindican; de tal manera correspondía a los accionantes demostrar que tales modificaciones generaron una disminución grave en los ingresos reales de los afectados, pero se echan de menos tales pruebas. En tercer lugar, los accionantes indican adicionalmente en este punto que la afectación se origina en la aplicación de esa estructura de deducciones a un monto bruto de jubilación ya sumamente mermado, consistente en apenas el 82 por ciento del salario de referencia que se calcula promediando los salarios de los últimos 20 años, en vez de los últimos 10 años como lo sugerían los estudios técnicos. No obstante, ello nos coloca de regreso en los reclamos relacionados con las condiciones para la validez constitucional de la determinación de un sistema de beneficios que sea acorde con la necesidad de que el Fondo pueda ser sostenible en el tiempo, justamente en beneficio general de todos quienes participan de él, lo cual ha sido avalado por esta Sala en los considerandos anteriores, por entender que se trata en este caso, de un ejercicio constitucionalmente legítimo de las potestades legislativas. En cuarto y último lugar, no está demás señalar que un reclamo como el planteado en este punto, (entrega de jubilaciones calificadas de “ruinosa(s), pauperizante(s) e indigna(s)” no puede fundarse en elaboraciones abstractas referidas únicamente a porcentajes de rebajo, porque con ello se omite el hecho de que “la ruina”, “la pauperización” y “la indignidad”, no operan en abstracto sino que se verifican en la realidad frente a la insuficiencia de los pagos y las cantidades reales que se reciban; con esto se quiere remarcar que hablar en abstracto de deducciones de un 50 o 55 por ciento sobre el último salario podría incluir, por ejemplo, los casos de salarios entre los 4 y 6 millones de colones que, rebajadas a su mitad, dejan al beneficiario con una suma neta de jubilación de alrededor de 2 a 3 millones de colones mensuales, que -a la luz de la experiencia de este Tribunal y salvo demostración en contrario- no pueden estimarse abiertamente insuficientes para vivir una vejez digna en nuestro país.

En conclusión, este aspecto del reclamo relativo al exceso de deducciones respecto del último salario debe denegarse por no configurar lesión de derechos constitucionales.

XLI. Redacta el Magistrado Araya García. Una respuesta diferente debe darse al caso que algunos de los accionantes plantean alrededor de este mismo tema, pues apuntan a la invalidez constitucional de la norma contenida en la parte final de los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial reformada por la Ley discutida, ya que -esta vez- reclaman que se regula un tope máximo de un 55 por ciento de deducciones respecto del monto bruto de jubilación, lo cual estiman como excesivo y lesivo del derecho fundamental a la jubilación. Sobre el tema concreto, esta Sala tuvo oportunidad de definir su posición en la reciente sentencia número 2020-19274 de las 16:30 horas del 7 de octubre de 2020, en la que se expuso en su parte resolutiva:

“Por mayoría, se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas. En consecuencia, se anula el porcentaje de cotización y la contribución especial establecidos en las Leyes N° 9380 y N° 9383, ambas de fecha 29 de julio de 2016, en cuanto exceden el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91, de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia o la paz social, la Sala gradúa y dimensiona el efecto de esta resolución, de modo que, a partir del mes siguiente de la notificación de esta sentencia, la Administración Tributaria deberá realizar el ajuste correspondiente conforme a esta sentencia, de tal manera que la carga tributaria que pesa sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El Magistrado Castillo Víquez da razones diferentes. Los Magistrados Rueda Leal, Hernández López y Garro Vargas, salvan el voto y declaran sin lugar dichas acciones acumuladas por razones diferentes. En cuanto a las Leyes N° 9381 de 29 de julio de 2016 y N° 9388 de 10 de agosto de 2016, por unanimidad se declaran sin lugar las acciones. Los Magistrados Rueda Leal, Hernández López y Garro Vargas dan razones diferentes. En lo demás, por unanimidad, se declaran sin lugar las acciones. Por unanimidad, se rechazan de plano las acciones acumuladas N° 17-007660-0007-CO y N° 17-005794-0007-CO, en cuanto no ofrecieron argumentación clara y precisa de los motivos para accionar contra las normas objeto de esta acción. Los Magistrados Cruz Castro y Hernández López ponen notas separadas. El Magistrado Rueda Leal emite voto particular en cuanto a los siguientes aspectos: 1) Declara inamisible las acciones de inconstitucionalidad a las que se les asignó los números de expedientes 17-004865-0007-CO y 17-007660-0007-CO, por cuanto los recursos de amparo que sirvieron como asunto previo, fueron planteados cuando las leyes cuestionadas no habían sido aplicadas a las partes tuteladas. 2) Declara sin lugar la acción en cuanto a las leyes n.os 9380 y 9383, pues ni resultan contrarias a los principios de razonabilidad, proporcionalidad y no confiscatoriedad, ni transgreden la protección internacional de que gozan las personas adultas mayores. Al respecto, estima que, de acuerdo con el texto expreso del artículo 67 del de la OIT C102 de 1952 ­-Convenio sobre la seguridad social (norma mínima)-, la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia; sin embargo, de los argumentos de los accionantes no se desprende una transgresión evidente y automática de ese porcentaje, ya que las leyes 9380 y 9383 establecen un límite del 55% respecto de la totalidad del monto bruto de la pensión. Además, el mínimo exento que contiene la ley n.o 9383 y el límite del 55% de la deducciones de las mayores pensiones sometidas a una escala gradual de afectación, garantizan pensiones más que dignas para personas adultas mayores 3) Declara sin lugar la acción en cuanto a las leyes n.os 9381 y 9388, pues estima constitucionalmente válido que, conforme al principio de solidaridad social, cuando un régimen de pensiones se encuentra en crisis de sostenibilidad financiera se modifiquen las condiciones de las pensiones o jubilaciones con mayores beneficios para solventar esa situación, siempre y cuando los ajustes tengan como finalidad resguardar la sostenibilidad del régimen y se respeten el principio de razonabilidad y proporcionalidad, así como la dignidad humana de las personas adultas mayores. 4) En cuanto al resto de aspectos da razones separadas. La Magistrada Garro Vargas pone nota. Comuníquese este pronunciamiento a los Poderes Legislativo, Ejecutivo y Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.-“ Del anterior pronunciamiento concluye, la mayoría del Tribunal, que para del Derecho de Constitución costarricense, no resulta aceptable que la reducción de los montos brutos jubilatorios, exceda un máximo del 50 por ciento fijado en dicha sentencia. De lo anterior, resulta evidente que los artículos 236 y 236 bis, de la Ley Orgánica del Poder Judicial, reformados por la Ley 9544 impugnada, son inconstitucionales, pues ambos fijan un 55 por ciento como tope máximo de deducciones legales, lo cual excede en 5 puntos porcentuales, el máximo establecido por este Tribunal en la sentencia citada. En lo que interesa se señaló:

“X.- Sobre el alegato de la no confiscatoriedad alegada en las acciones. El principio de no confiscatoriedad, no está expresamente establecido en la Constitución Política, pero se debe derivar implícitamente de la relación de los artículos 18, 45 y 50, de la Carta Magna, como un límite a la potestad tributaria del Estado. La Sala, al delimitar el principio de no confiscatoriedad, ha establecido su relación intrínseca con algunos derechos fundamentales, pero con preferencia con el derecho a la propiedad, especialmente cuando se trata de derechos materiales como también inmateriales. Así, por Sentencia N° 1993-05749 de las 14:33 horas del 9 de noviembre de 1993, esta Sala estableció:

“El estado puede tomar parte proporcional de la renta que genera el particular, para sufragar sus gastos, pero siempre que no llegue a anular la propiedad como tal, como sería el caso de que el tributo absorba totalmente la renta. Si la Consitución (sic) protege el derecho de propiedad al patrimonio integral, no se puede reconocer y admitir que otras disposiciones lo destruyan. Así, para ser constitucionales, los tributos no deben desnaturalizar otros derechos fundamentales, la Constitución asegura la inviolabilidad de la propiedad privada, así como su libre uso y disposición y prohíbe la confiscación, por lo que no se puede permitir una medida de Tributación que vaya más allá de lo razonable y proporcionado. El impuesto es un medio de política económica, que debe armonizarse con el gasto público y la coyuntura económica, y su límite es la capacidad tributaria del particular. La ordenación de los impuestos debe basarse en los principios de generalidad y equitativa distribución de las cargas públicas. La aplicación del principio de igualdad, se refiere a la proporcionalidad de los impuestos, debiendo ser las cuotas desiguales para producir sacrificios iguales, de manera que exista una igualdad relativa respecto de la capacidad de pago, es decir, debe considerarse la capacidad económica del sujeto que debe pagar. Si la Constitución en su artículo 45 establece que la propiedad es inviolable, y en su artículo 40 que nadie será sometido a pena de confiscación, es indudable que el tributo no puede ser tal que haga ilusorias tales garantías. Lo que debemos entender por "parte sustancial de la propiedad o de la renta", es algo que no puede establecerse de manera absoluto; el componente de discrecionalidad o de razonabilidad debe valorarse en cada caso concreto, de manera circunstancial, según las necesidades de hecho, las exigencias de tiempo y lugar, y la finalidad económico-social de cada tributo. Pero sí se puede establecer como principio, que se considera confiscatorio el gravamen que exceda la capacidad económica o financiera del contribuyente, o bien, si el impuesto absorve (sic) una parte sustancial de la operación gravada, y corresponderá al Juez, en cada caso, analizar estas circunstancias, que serán, lógicamente, variables, y lo correcto es analizar esas situaciones en forma concreta”.

De igual manera, esa doctrina se repite en otras sentencias de esta Sala, en la que ha definido el principio de confiscatoriedad; por ejemplo, en la N° 1995-554, de las 16:45 horas del 31 de enero de 1995 -reiterada por la citada Sentencia N° 2003-5276, de las 14:54 horas del 18 de junio de 2003-, entre otras. De lo anterior, es clara la premisa de que los tributos no deben desnaturalizar otros derechos fundamentales, especialmente, cuando la Constitución Política establece la inviolabilidad de la propiedad privada, así como su libre uso y disposición, y la prohibición de la confiscación. Esta última interdicción debe ser entendida como la imposibilidad de despojar a una persona, mediante una pena o exacción desproporcionada, de la totalidad o de una parte importante de sus bienes, por violación a un deber legal o por tributos, para pasarlas a la propiedad del Estado sin indemnización alguna. Se debe afirmar, que corresponde a esta Sala determinar, en cuanto a este principio, si la normativa impugnada tiene alcances confiscatorios, entendido lo anterior, en razón de que la potestad tributaria se excede en gravar una porción de la propiedad (o de un derecho) del obligado tributario que estaría protegido como un derecho fundamental.

Cabe indicar, que el tema involucra un ejercicio de ponderación de potestades públicas y de derechos fundamentales, la intensidad del ejercicio de la potestad tributaria sobre la propiedad, pues tendría como límite el principio de no confiscatoriedad. En este sentido, la progresividad en los tributos encuentra su fundamento en la necesidad de abordar los principios de capacidad contributiva y el de no confiscatoriedad. Lo que para unos podría ser confiscatorio, para otro no, claramente según su capacidad contributiva. La justicia tributaria debe tener estrecho ligamen con el principio de razonabilidad y proporcionalidad, especialmente en el tema que nos ocupa, donde debe cumplirse la máxima de que todos debemos contribuir a los gastos públicos, pero de conformidad con las posibilidades de cada deudor tributario. Si bien con toda razón se debe afirmar que la obligación tributaria no debe agotar la capacidad para generar la renta y la propiedad, es imperativo reafirmar también que los tributos no pueden absorber una parte de las prestaciones de la seguridad social, especialmente cuando éstos se encuentran cubiertos por el derecho internacional, aun cuando como una prestación económica del Estado no han ingresado (o debió haber ingresado) al patrimonio individual. En tal sentido, se debe reconocer que la prestación de dinero que recibe el pensionado, es susceptible de ser gravada, existe un límite -como se ha indicado supra- en la cantidad. De este modo, como lo afirman los accionantes con fundamento en el principio de no confiscatoriedad, no se puede permitir que los tributos absorban, lo que ellos arguyen como la propiedad de las personas, y que la Sala, entiende como la prestación económica que se recibió derivada del derecho a la pensión, y que permite concluir que el dinero que efectivamente ha ingresado a la esfera individual del beneficiario, sería propiedad privada que no podría ser alcanzado retroactivamente por la normativa impugnada. Sin embargo, el problema radica en la deducción que, por demasía (al menos de hasta un 5%), se ha realizado sobre la prestación económica que no debió realizar el Estado, el que por derecho corresponde a los pensionados y jubilados, especialmente, si se ha reconocido esa parte como su derecho a la pensión. En esto nos referimos al 5% de más, respecto de todos los tributos que debe cancelar el pensionado o jubilado.

Ahora bien, en concreto, el problema de relevancia constitucional radica en que con la contribución especial, solidaria y redistributiva, se denota que esta se hace con deducciones escalonadas realizadas sobre un monto bruto, que luego regresan a la caja única del Estado (conforme al artículo 4, de la Ley N° 9383, a financiar el régimen de pensiones y el régimen no contributivo de la C.C.S.S.). A eso se le suma el porcentaje de cotización de pensionados, jubilados y servidores activos, el cual se hace conforme a la norma, de forma gradual de manera proporcional según los montos del salario o de la pensión de que se trate (de un 9% a un 16%), según el párrafo 2°, del artículo 11, de la Ley N° 7302, reformado por la Ley N° 9380. Y como se indicó anteriormente, a estas reducciones se le incluyen otros tributos, como la renta que grava el monto bruto. Es decir, en aquellos casos en que aplica la normativa bajo análisis, claramente produce un efecto de despojar la prestación económica al pensionado (a), mediante exacción que afecta una parte de sus ingresos (hasta en al menos un 5%), por la aplicación de tributos para pasarlas a la propiedad del Estado sin indemnización alguna. Reconoce este Tribunal, que el impacto que ello tiene en la posición económica del adulto mayor, sobre todo de un momento a otro, no supone algo fácil de asimilar, especialmente, cuando se precipita abruptamente la acostumbrada entrada económica en más de un 55%, todo lo cual produce una regresión considerable en la situación económica del adulto mayor. Se ha alegado que esos rebajos contravienen un margen de dignidad y adecuación del adulto mayor en la vejez, y que por lo dicho supra, con el escrutinio de estas normas debe concluirse en que al incumplir con el Convenio N° 102, de la Organización Internacional del Trabajo, falta al deber de proporcionar un monto integral de la pensión.

No cabe duda, para este Tribunal, como se ha dicho líneas atrás, que cuando el Estado exige a los contribuyentes el pago de impuestos, esta exigencia debe cumplir con ciertos estándares. En este sentido, como se discutió con anterioridad, se trataría de parámetros internacionales jurídicamente vinculantes para el Estado costarricense, sobre los cual no puede desconocer o pretender anular, si hay una norma superior que ofrece mayor protección, especialmente en favor de la persona humana. Con esta disposición, el Estado ha reconocido primero el derecho a la pensión de los accionantes conforme al ordenamiento jurídico que promulga, en cuyo caso tienen derecho a recibir una prestación económica como titular del derecho, es decir, un monto de la prestación sin discriminación conforme les corresponde. De igual manera, ese monto estaría sujeto a ciertas condiciones que debe cumplir el marco normativo, para lo cual sería ilícito para el Estado salirse de ellas.

La Sala comprende, del escrito de interposición de los accionantes Ramos Valverde y Pacheco Salazar, así como los coadyuvantes Vargas Aguilar y otros, que se impugna la contribución especial propiamente, la afectación confiscatoria sobre esos ingresos que demerita la dignidad o adecuación de las prestaciones económicas. Sobre este punto, según los datos oficiales, es importante traer a colación la comparación de las prestaciones económicas ofrecidas entre los regímenes nacionales, en el tanto se compara el régimen de pensiones de Hacienda, con otros regímenes, algunos sin y otros con un fondo de cotizaciones. Más aún, el Ministerio de Trabajo y Seguridad Social, así como la Directora Nacional de Pensiones, pretenden evidenciar, con base en la tabla que a continuación se transcribe, que existen diferencias importantes entre el régimen no contributivo, el régimen contributivo básico de pensiones (ambos administrados por la Caja Costarricense de Seguro Social), y el régimen de reparto o pensiones basado en el presupuesto nacional, el cual se sigue manteniendo aún mejor posicionado, comparativamente. Lo anterior sin olvidar que depende en un 90% del Presupuesto Nacional. Ello se evidencia, de la siguiente manera (visible en el informe folios 3795-3814 del expediente):

Régimen No Contributivo (Monto único mensual) Régimen IVM (Monto máximo mensual) Regímenes con cargo al Presupuesto (Pensión promedio) * Monto de Pensión mensual del accionante aplicando la totalidad de las deducciones de Ley y la Contribución Solidaria (enero 2017) ¢78.000,00 ¢1.527.477,00 ¢464.641.20 ¢3.508.509.44 *Monto promedio de pensión tomando en consideración las 18.700 personas que no estarían sujetas a la contribución especial solidaria y redistributiva.

Se observa de lo anterior, que a pesar de establecer una comparación entre un régimen básico como el de la Caja Costarricense de Seguro Social, respecto del monto de la pensión que se tomaría de ejemplo, del accionante Ramos Valverde del Régimen de Hacienda modificado por la legislación impugnada, los montos recibidos muestran aún un mejor posicionamiento económico en más de 2.3 veces. No obstante, las autoridades lo comparan con el Régimen de la Caja Costarricense de Seguro Social, con ello se comparan sistemas diferentes, uno donde si hay un fondo constituido, con sus respectivos mecanismos de cotización, inversión de fondos y reservas, que no está bajo examen, pero evidentemente, no es lo mismo que el de reparto “puro” basado en el Presupuesto Nacional, como bien lo argumentan los accionantes y lo explican las autoridades. Si bien, las autoridades demuestran que en el Régimen de Hacienda mejora la prestación económica del pensionado, es un sistema que opera sin un fondo formalmente constituido, que comparado con aquel protegido bajo el esquema básico nacional amparado a la Caja Costarricense de Seguro Social y otros sustitutivos, ese argumento deja de lado un aspecto de real relevancia como es el nivel de cotizaciones salariales que se hizo en el sistema para un fondo, cartera de inversiones, como sucede con otros, como el del Magisterio Nacional, Poder Judicial, entre otros, que no se está tomando en cuenta.

Por otra parte, se ilustra que dentro del mismo Régimen de Hacienda, las pensiones superiores mejoran el promedio de aquellas que no superarían la base contributiva de la norma impugnada, cuyo monto medio de ¢464.641.20 aún estaría superada en 7.55 veces. La comparación utiliza como referentes un universo de pensionistas (18700) por debajo de los diez salarios de referencia frente a un referente individual, comparación que pretende demostrar la reacción del Estado, que debe analizarse con mayor profundidad. Precisamente, se diseña una contribución especial, solidaria y redistributiva de los pensionados y jubilados, para producir una importante disminución de ingresos a un grupo pequeño de jubilados, motivado en un contexto de contracción significativa de la economía nacional, que exigía la revisión del sistema de pensiones y la necesidad de delimitar ciertas pensiones. Pero lo anterior, se alega, afecta la acostumbrada prestación económica que se venía recibiendo por parte de los (de las) pensionados (as) y jubilados (as), por lo que necesita demostrarse que existe una justificación razonable y proporcional sobre la totalidad de la prestación económica que se pretende afectar, pese a que mediante esa legislación se reduce un ingreso por encima de los límites establecidos en los estándares que el propio país se comprometió con el Convenio N° 102, de la Organización Internacional del Trabajo.

Lo que debe analizarse de la normativa es la razonabilidad de los porcentajes y el efecto que estos tienen, especialmente porque el valor de la pensión recae sobre el rubro en bruto, lo que supone que diversas exacciones coactivas operan sobre la pensión, los que superarían los costos totales permisibles de gravar, y se debe cuestionar si se produce la infracción al principio de no confiscatoriedad en el tanto que se encuentra en contra del derecho establecido en la Convención, en cuanto supera el 50%. En ese sentido, habría que determinar si en la aplicación, por las consecuencias o efectos habría una inconstitucionalidad en la razonabilidad técnica y en la proporcionalidad. La Sala estima que todo lo anterior produce una reducción significativa, de aquella parte neta de la prestación, luego de aplicar los porcentajes de las contribuciones que correspondan y los montos de la cotización que deban cancelar. Pero, con estos otros pagos que correspondan, conforme esta Sala estableció supra, todos los tributos considerados en conjunto no pueden superar el 50%, como impuestos, tasas, contribuciones, cotizaciones, rentas y deducciones de ley, pues ello no solo quebrantaría el principio de solidaridad comunitaria, sino que también los principios constitucionales de razonabilidad y proporcionalidad; además, como parámetro, de la infracción al párrafo 2°, del artículo 71, del Convenio N° 102, de la Organización Internacional del Trabajo.

En cuanto a la exigencia de tributar más, debe decirse que el diseño de las disposiciones impugnadas parte de un parámetro fijo compuesto de diez veces el salario base más bajo pagado en la Administración Pública, según la escala de sueldos de la Administración Pública emitida por la Dirección General de Servicio Civil. Es decir, existe un mínimo exento cuantificado por la legislación, que se amplía según baje el salario base fijado. Si el monto bruto del pensionado supera esa cuantía, la ley ordena aplicar un gravamen escalonado y progresivo contenido en la disposición.

Entonces, el artículo 3, de la Ley N° 9383, establece lo siguiente:

“a) Sobre el exceso del monto resultante de diez veces el salario base más bajo pagado en la Administración Pública, según la escala de sueldos de la Administración Pública emitida por la Dirección General de Servicio Civil y hasta por el veinticinco por ciento (25%) de dicha suma, contribuirán con el veinticinco por ciento (25%) de tal exceso.

• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta y cinco por ciento (55%) de tal exceso.
• e)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un sesenta y cinco por ciento (65%).
• f)Sobre el exceso del margen anterior contribuirán con un setenta y cinco por ciento (75%)”.

Como se ve, la norma contempla una contribución acumulativa y progresiva donde el tributo total dependerá del monto de la pensión que supere los diferentes tractos establecidos por la disposición (lo que mantendría relación con la capacidad contributiva). Como se dijo supra, el parámetro base para esta imposición se establece en el monto compuesto a partir de los diez (10) salarios base, posteriormente incrementado en un 25%, para finalmente gravar las diferencias entre las pensiones que quepan en el parámetro base y el superior. De este modo, se transita de conformidad con el monto bruto de la pensión del respectivo interesado, y dependerá si la suma se encuentra dentro de un tramo o tracto, y si lo supera, cae en otra exacción. Así, se aplicaría el 25%, 35%, 45%, 55%, 65%, y 75%, respectivamente, según cada tramo con respecto a las diferencias.

La importancia de la explicación anterior, es porque la norma grava un exceso de los diez salarios mínimos indicado supra, aumentando la obligación tributaria del gravamen conforme el monto de la pensión supera el exceso previamente definido, lo que significa que entre más es el monto percibido mayor será la obligación contributiva. El problema de la norma tiene que ver con el efecto acumulativo e incrementado que tiene con este y otros impuestos de similar naturaleza (que gravan la renta bruta), toda vez que la norma impugnada concluye en que en ningún caso la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión”. De este modo, establece un gravamen total hasta de un cincuenta y cinco por ciento (55%), lo cual, estaría superando lo permitido en el inciso 2), del artículo 71, del Convenio de la Organización Internacional del Trabajo, que fija el establecimiento de los costos de las pensiones en un 50%, con ayuda de los impuestos y contribuciones de la comunidad considerada en su totalidad, no solo de los trabajadores y pensionados y jubilados. Esto implica que el deudor tributario, en este caso, el pensionado, estaría aportando aún más impuestos con el de la renta, que implicaría mayores costos y deducciones en su caso, incluso un mayor sacrificio exigido por la sociedad.

Por lo expuesto, la mayoría de esta Sala estima que la acción debe declararse con lugar sobre este extremo, tal como se consignará en la parte dispositiva de la sentencia.” En consecuencia, deben anularse parcialmente la parte final de los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial, reformados por la Ley impugnada, pero única y exclusivamente en cuanto a esos 5 puntos porcentuales de exceso sobre 50 por ciento fijado por esta Sala respecto del tope máximo para deducciones legales sobre los montos brutos de jubilación o pensión.

XLII.-. Redacta la Magistrada Hernández López. Sobre la contribución especial solidaria y redistributiva creada por el artículo 236 bis de la Ley Orgánica del Poder Judicial. En lo que se refiere al artículo 236 bis de la Ley Orgánica del Poder Judicial, agregado por la ley número 9544 impugnada, los accionantes indican que genera igualmente una reducción injusta e inconstitucional de los ingresos de un grupo de jubilados y pensionados. Al momento de plantearse las acciones que aquí se conocen, el texto de citada disposición era el siguiente:

“Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados.

Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%).

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

En la norma se contemplaba una carga económica adicional en favor del fondo sufragada por aquellos jubilados y pensionados que recibieran pagos jubilatorios o de pensión por encima del tope de 10 salarios base fijado en el artículo 225 de la Ley Orgánica del Poder Judicial como tope máximo a pagar por parte del Fondo de Jubilaciones y Pensiones del Poder Judicial. De ese modo, es válido afirmar que la contribución especial solidaria tenía un carácter intrínsecamente transitorio, en tanto que solo sería aplicable a quienes hubieran obtenido la condición de jubilados y pensionados al amparo del diseño previsional anterior que no fijaba tope para el pago de montos jubilatorios. Será entonces este texto legal, que formaba parte del diseño original de la mencionada contribución, el que se analizará en los siguientes considerandos, haciendo dos advertencias: la primera, que el artículo 7 de la Ley número 9796 del 5 de diciembre de 2019, reformó el inciso a) del recién citado artículo 236 bis para disponer que la aplicación de la contribución especial redistributiva y solidaria se aplicará a todos los montos brutos de jubilación o pensión que superen los seis (6) salarios base del sueldo más bajo pagado en el Poder Judicial, con lo cual modificó el diseño original de la ley, pues mantuvo el tope máximo (equivalente a 10 salarios base) como máximo pago por montos jubilatorios establecido en el artículo 225; y la segunda, que a raíz de esa variación en el diseño de la contribución especial fijada en el artículo 236 bis de la Ley Orgánica del Poder Judicial, algunos accionantes plantearon dentro de estas acciones, una solicitud de declaratoria de inconstitucionalidad por conexidad contra la Ley número 9796 últimamente citada, pero ese reclamo no será objeto de consideración ni análisis aquí, sino en el expediente respectivo, ello según las razones que se dirán más adelante.

XLIII.-. Continúa redactando la Magistrada Hernández López. Los reclamos de los accionantes sobre el artículo 236 bis de la Ley Orgánica del Poder Judicial, hacen referencia a que el establecimiento de una “contribución especial, solidaria y redistributiva”, configura un rebajo adicional que estiman excesivo, desproporcionado e irrazonable, pues no toma en cuenta que durante toda su vida laboral, el servidor judicial había venido cotizando para el régimen, en promedio de un 11% mensual sobre el salario bruto y que esa cotización, aumentada en dos puntos porcentuales, la seguirá haciendo después de adquirir el derecho a la jubilación o bien a la pensión para los casos en que esta procede. Estiman además que esta “nueva” contribución que se crea, es contraria al principio de igualdad, resulta confiscatoria y constituye una doble imposición pues los servidores judiciales están siendo sometidos a efectuar dos pagos diferentes para un mismo fin, que es robustecer el Fondo de Jubilaciones y Pensiones del Poder Judicial. Aunado a lo anterior, estiman que, se vulneran derechos fundamentales de las personas adultas mayores porque con estas nuevas cargas se modifican considerablemente los montos de dinero que acostumbraban recibir, con el consiguiente perjuicio económico que ello representa en sus obligaciones financieras.

XLIV. Continúa redactando la Magistrada Hernández López. Los informantes dentro de estas acciones de inconstitucionalidad señalaron sobre este aspecto lo siguiente: la Procuraduría General de la República y la Presidencia de la Asamblea Legislativa coinciden negar la inconstitucionalidad de la creación de una contribución especial solidaria y redistributiva, pues el concepto no es novedoso, se ha empleado en el pasado y ha sido avalado por la Sala como por ejemplo en la sentencia 1996-3256. Por ese motivo nada se opone a que el legislador fije un tipo de contribución especial dentro del diseño de un régimen previsional. En lo tocante al principio de igualdad, tampoco estiman que exista ninguna lesión pues no solo existen contribuciones en otros regímenes especiales, sino que no puede compararse en este aspecto el régimen de jubilaciones y pensiones del Poder Judicial con el de la CCSS, pues sus condiciones características y prestaciones son distintas y no se puede pretender tomar de cada uno lo que convenga a un determinado grupo de servidores o exservidores. Igualmente, rechazan la existencia de una doble imposición pues una cosa es la cotización al fondo que se impone a todos los beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial, y otra es la contribución solidaria y redistributiva que se impone solamente a los jubilados y pensionados que reciben prestaciones económicas que superan diez veces el salario base del puesto más bajo pagado en el Poder Judicial; contribución que además es proporcional y progresiva, y tiene una naturaleza distinta a la de la cotización, por lo que no se estima que sea contraria a la Constitución Política. La Vicepresidenta de la Corte Suprema de Justicia manifestó que su representada, desde el primer momento, se opuso a la redacción de la norma contenida en el artículo 236 bis porque este aporte que ahora se llama contribución solidaria, ya está implementado en el régimen actual -en aquél momento-, toda vez que jubilados y pensionados del Poder Judicial, continúan cotizando al régimen el mismo porcentaje que las personas trabajadoras activas y que para aquélla época era de un 11%, estimando que cualquier aporte solidario adicional debía partir de ese porcentaje ya aportado, recordando que además los jubilados y pensionados del Poder Judicial también debían contribuir con el seguro de enfermedad y maternidad de la CCSS que correspondía a un 5%, además de pagar el impuesto sobre la renta entre el 10% y el 15% dado el rango de su jubilación o pensión. Además de ello, indica que la Corte Plena manifestó que este aporte solidario no podía sobrepasar un 20% considerando el 11% ya aportado, pues, de lo contrario, la totalidad de las deducciones serían confiscatorias y atentarían contra la normativa internacional y constitucional establecida en la materia, señalando que por ello se hizo atenta instancia ante el legislativo de que se debía tener especial cuidado con las reducciones que se impongan a efecto de que no resulten confiscatorias.

XLV.- Redacta la Magistrada Hernández López. La constitucionalidad de la figura jurídica de contribución especial, solidaria y redistributiva solidaria en general. Este Tribunal ha manifestado en ocasiones anteriores que la llamada contribución especial, solidaria y redistributiva no es asimilable al tributo y que no lo constituye en los términos previstos por la Constitución Política en los artículos 18 y 121 inciso 13), toda vez que está concebida únicamente para favorecer el régimen de los contribuyentes obligados, pero bajo ninguna circunstancia esos dineros podrán entrar a las arcas del Estado, con el carácter de ingreso corriente para satisfacer gastos distintos de las cargas del sistema de jubilaciones y pensiones (ver en ese sentido la sentencia número 5236-99 de las 14 horas del 7 de julio de 1999). Se ha afirmado también que este tipo de contribución es una obligación legal nacida a partir de un sistema que contempla el aporte de los servidores que están adscritos, siendo que ese acto de fijación de la contribución, sí debe ser controlado, de manera tal que es posible analizar, en sede jurisdiccional, el respeto al procedimiento legal establecido y la razonabilidad en la fijación del aporte (ver sentencia número 5236-99 de las 14 horas del 7 de julio de 1999). De tal forma, la contribución especial, solidaria y redistributiva que se establece en ese numeral 236 bis de la Ley Orgánica del Poder Judicial, no es un mecanismo novedoso que usa el legislador para intentar fortalecer un régimen de jubilaciones y pensiones; por el contrario, ya ha sido utilizado en otros sistemas como se hizo en la Ley número 7268 que es Reforma al Régimen de Pensiones del Magisterio Nacional, siendo que este Tribunal, en la acción de inconstitucionalidad número 3683-M-93, había analizado esa contribución y consideró, lo siguiente:

“III.- SOBRE LA CONTRIBUCION CONTEMPLADA EN EL ARTICULO 12.- Las contribuciones, tanto la general como la especial, establecidas a cargo de los pensionados y jubilados en el artículo 12 de la Ley número 7268, tienen legitimación constitucional, al tratarse en primer lugar de medidas fundadas en la naturaleza social del derecho de jubilación, que se inscriben dentro de los principios que conforman el Estado Social de Derecho recogidos por el artículo 50 Constitucional, y en segundo lugar porque, debido a esa indiscutible naturaleza social, el derecho de jubilación requiere una activa y predominante participación del Estado para su efectiva realización, por lo que aunque no podría ser eliminado o desatendido del todo, sí puede ser limitado, condicionado y restringido en la medida en que el Estado -la sociedad- se vea materialmente impedido de aportar a su efectiva concreción más allá de cierto nivel, debiendo aceptarse tales limitaciones por cuanto su fin es justamente asegurar la supervivencia y el efectivo ejercicio del derecho de jubilación a todos los trabajadores y en concreto la materialización del derecho de jubilación a todos los miembros del Régimen de Pensiones del Magisterio Nacional. A mayor abundamiento, puede citarse la resolución de esta Sala número 1925-91 de las doce horas del veintisiete de setiembre de mil novecientos noventa y uno, en la que se señaló:

"1) Naturaleza de la contribución al régimen: El primer aspecto que se consulta, es dilucidar si las contribuciones que se establecen en este artículo del proyecto son o no un tributo. El régimen de pensiones y jubilaciones objeto de este análisis, corresponde a la modalidad llamada contributiva, en el que se constituye un fondo con los aportes de los trabajadores, de los empleadores o patronos, y del Estado para sufragar el costo de los beneficios, una vez que el trabajador se acoge al retiro. Corresponde a la Ley definir, conforme a las especiales características de cada sistema de pensión o jubilación, el monto de las contribuciones que corresponde a cada una de las tres partes. Como lo indica la consulta, la Corte Suprema de Justicia en resolución de las quince horas del 12 de agosto de 1987, declaró sin lugar la acción de inconstitucionalidad interpuesta contra la facultad de la Caja Costarricense de Seguro Social para determinar las cuotas y prestaciones de los seguros sociales. Esta Sala comparte lo ahí expresado y no encuentra razón alguna para variar ese criterio, el que lo hace suyo, declarando que la contribución a que alude el artículo 12 del proyecto, por su naturaleza y efectos no es un tributo, como lo ha señalado la más calificada jurisprudencia y doctrina constitucionales”.

También en la sentencia número 1341-93 de las diez horas treinta minutos del veintinueve de marzo de mil novecientos noventa y tres, se volvió a conocer la cuestión y se reiteró el criterio emitido sobre el particular señalándose lo siguiente:

VII.- CONTRIBUCION AL FONDO DE JUBILACIONES Y PENSIONES Y CONFISCACION.- También se alega, en los distintos regímenes de retiro, que es violatorio a los derechos fundamentales exigirle a los beneficiarios de ellos, contribuir al Fondo, porque implica otorgarle efecto retroactivo a la Ley 7268 o 7302, según sea el caso y en último caso, confiscatoria la medida. Esta Sala mediante Voto No. 1925-91 de las 12:00 horas del 27 de setiembre de 1991 expresó que las contribuciones cobradas conforme al artículo 12 de la Ley 7268 no conforman un tributo, por estar estructurado el régimen según la modalidad llamada contributiva, en el que se constituye un fondo con los aportes de los trabajadores y beneficiarios, de los empleadores o patronos y del Estado, para sufragar el costo de los beneficios; y corresponde a la Ley definir, conforme a las especiales características de cada sistema de pensión o jubilación, el monto de las contribuciones que debe aportar cada quien. Este criterio lo externó la Sala, en la Consulta Legislativa facultativa, en el trámite de aprobación de la Ley 7268 y en la que fue consultado, concretamente, el artículo 12 referido. La Sala señaló que la contribución es el pago de una obligación legal, condición esencial para la existencia del régimen mismo y que tiene como fundamento el fortalecimiento del Fondo, para protección y beneficio de los propios contribuyentes. La fijación de la contribución, dentro de los límites que señala la misma Ley, debe obedecer a criterios técnicos, actuariales, para definir el costo real del sistema, de tal forma que "la única forma como los sujetos titulares de una pensión o jubilación puedan disfrutarla plenamente, es sufragando el costo proporcional que les corresponde del total del sistema" (Cf. fallo indicado) y la razón de ser de la ley, resulta así, adecuada al principio cristiano de justicia social (Art. 74 de la Constitución Política) y proporcionado al deber de contribuir en la medida del beneficio obtenido. Bajo ese mismo punto de vista, se concluyó que la contribución no resulta confiscatoria. La Sala no encuentra razones para modificar el criterio externado y en lo que atañe a este aspecto del amparo, procede declararlo sin lugar, manteniendo su jurisprudencia (Artículo 9 de la Ley de la Jurisdicción Constitucional)”.

A partir de lo dicho supra, la contribución especial, solidaria y redistributiva que se impugna en esta acción de inconstitucionalidad, debe ser entendida como una limitación constitucionalmente válida al derecho a la jubilación, surgida del carácter social de ese derecho y por ello no es inconstitucional en sí misma, ni en relación con los objetivos por los que se persigue con su creación.

XLVI.-. Redacta la Magistrada Hernández López. Sobre la creación de la contribución especial, solidaria y redistributiva como una potestad del Poder Legislativo.- Los accionantes argumentan que de conformidad con lo dispuesto en el artículo 121 inciso 13 de la Constitución Política, la Asamblea Legislativa no tiene competencia para crear contribuciones especiales, solidarias y redistributivas a favor de un fondo concreto, toda vez que en ese inciso se indica “establecer los impuestos y contribuciones nacionales”, recordando que la libertad de configuración del legislador, está limitada por el Derecho de la Constitución. No obstante lo anterior, considera la Sala que no llevan razón en este reclamo porque, como se dijo, la contribución especial, solidaria y redistributiva no está configurada como un impuesto, sino una carga parafiscal, fundada en la naturaleza social del derecho de jubilación, que se inscribe dentro de los principios que conforman el Estado Social de Derecho recogidos por el artículo 50 Constitucional por lo que es constitucionalmente válida, y además porque, como se dijo, se reviste de una indiscutible naturaleza social protegida por el Estado mediante la adopción de medidas necesarias para la efectiva realización del derecho social al que va dirigida, por lo que es válida su imposición justamente para asegurar la supervivencia y el efectivo ejercicio del derecho de jubilación a todos los trabajadores del Poder Judicial.

Igualmente, debe recordarse que, para la Sala, medidas como la contribución especial, solidaria y redistributiva -como aportaciones a la seguridad social-, son contribuciones parafiscales, impuestas en el ejercicio de una potestad de imperio del Estado para el cumplimiento de fines sociales o económicos y que solo se pueden crear a través de ley formal.

Sobre el tema de la contribución parafiscal, la jurisprudencia constitucional siguiendo la doctrina, ha considerado que las contribuciones parafiscales son figuras que pertenecen a la tributación general. A manera de ejemplo, ver las sentencias, 4785-93 y 6478-96. En este último caso se estableció lo siguiente:

“II.- Sobre el fondo: impugna el actor la obligación pecuniaria patronal que establece el artículo 5 de la Ley Orgánica del Banco Popular y de Desarrollo Comunal, que a continuación se transcribe, en lo conducente:

‘Artículo 5º.- El Fondo de Trabajo Capitalizado se formará por:

• a)Un aporte del 1/2% mensual sobre las remuneraciones, sean salarios o sueldos que deben pagar los empresarios particulares, los Poderes del Estado y todas las instituciones públicas; y (...)’, alegando violación del derecho de propiedad privada y la libertad de comercio. Sobre las lesiones acusadas, debe recordarse que el monto que se cobra a los patronos para constituir parte del ahorro obligatorio de sus empleados consiste en una contribución parafiscal, en los términos y con las consecuencias que ha definido este Tribunal:

“Esta especial configuración jurídica implica, necesariamente, que los aportes, tanto los de los productores, como los de terceros, incluyendo al Estado, que conforman el Fondo (inciso a) artículo 2° idem), sean verdaderas contribuciones con claros fines económicos y sociales, conocidas en la doctrina del Derecho Tributario, como ‘contribuciones parafiscales’, que son impuestas por el Estado pero no figuran en el presupuesto general de ingresos y gastos, por lo que recibe la denominación antes referida. La misma doctrina del Derecho Financiero define la figura como "tributos establecidos en favor de entes públicos o semipúblicos, económicos o sociales, para asegurar su financiación autónoma’. Quiere decir, lo anterior, que la contribución parafiscal no constituye una figura distinta de la tributación general.(...)" En todos los casos analizados por la jurisprudencia constitucional de este tipo de contribuciones, encontramos un denominador común, y es que estamos frente a una contribución que impone coactivamente el Estado para alcanzar un fin económico o social específico de un grupo de personas que tienen intereses en común (agricultores, profesionales, cooperativistas, trabajadores, etc.).

Ahora bien, no se afecta la protección del artículo 34 de la Carta Fundamental con la creación de la contribución solidaria impugnada, en cuanto ésta no rige retroactivamente, sino a partir de la vigencia de la ley que la crea, circunstancia que comparte con los tributos en general.

Se invoca como violación el hecho de que la Asamblea Legislativa haya creado un tributo especial, cuando, de conformidad con el numeral 121, inciso 13, de la Carta Fundamental únicamente se le atribuye a este órgano constitucional el establecer los impuestos nacionales y aprobar los municipales. Este agravio debe ser rechazado por varios motivos. Primero, lo que se crea en este caso es una contribución parafiscal, sea un tributo que se destina a una finalidad económica y social, en este caso a sufragar los gastos administrativos de Junta que se crea, lo que constitucional y doctrinariamente está más que justificado. En segundo término, resulta lógico de si un grupo de trabajadores tienen un régimen especial de jubilaciones y pensiones, conformando un fondo separado del régimen general -el de invalidez, vejez y muerte que administra la Caja Costarricense del Seguro Social-, resulta razonable y proporcional que los trabajadores activos, los jubilados y pensionados contribuyan al mantenimiento del órgano que tiene como competencia su administración. Finalmente, si la Asamblea Legislativa tiene la potestad de crear tributos con alcance general, ello no impide que pueda crear contribuciones parafiscales, cuando existen motivos objetivos y razonables para su creación.

XLVII. Redacta la Magistrada Hernández López. La contribución especial, solidaria y redistributiva y el reclamo por doble imposición para un mismo fin.- Los accionantes argumentan que la contribución especial, solidaria y redistributiva creada a favor del Fondo de Jubilaciones y Pensiones del Poder Judicial implica para el servidor judicial, pero también para el jubilado o pensionado judicial, una doble imposición pues además de estar obligado a mantenerse cotizando un 13% de sus ingresos para el fondo, ahora se le obliga también a cotizar entre un 35% y 55%, lo que estiman inconstitucional. La Procuraduría General de la República considera que no existe en este caso una doble imposición, pues debe distinguirse la cotización al fondo que se impone a todos los beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial, de la llamada contribución especial, solidaria y redistributiva que se impone solamente a los jubilados y pensionados que reciben prestaciones económicas que superan el tope establecido de diez veces el salario base del puesto más bajo pagado en el Poder Judicial; contribución que además es proporcional y progresiva, y tiene una naturaleza distinta a la de la cotización, por lo que no se estima que sea contraria a la Constitución Política. La Vicepresidenta de la Corte Suprema de Justicia no se pronunció sobre el punto en concreto pero -tal y como se reseñó arriba- sostiene la inconstitucionalidad de la contribución especial como tal, por entender que ya existe una alta carga sobre los jubilados y pensionados que deben seguir cotizando el 13 por ciento del monto bruto de jubilación o pensión. Para el Tribunal, la figura de la contribución especial, solidaria y redistributiva no se configura constitucionalmente como una doble imposición, pues en su diseño original (previo a la reforma operada por la ley número 9796) atiende a un fin separado de aquel perseguido por la cotización general impuesta a todos los beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial para lograr su sostenimiento y funcionamiento normal. A diferencia de esta cotización general, el Tribunal tiene claro que la citada norma 236 bis buscó gravar las sumas excedentes del tope máximo de jubilación o pensión a pagar por el régimen, fijado por el artículo 225 de la Ley Orgánica del Poder Judicial en 10 veces el salario base del puesto más bajo pagado en el Poder Judicial, en el entendido de que tales excesos se presentaban en un grupo finito y determinable de jubilaciones y pensiones otorgadas conforme a las reglas del anterior régimen (sea en curso de pago o las declaradas pero suspendidas en su disfrute) y por ello claramente temporales en su aplicación y no soportables con el esquema de aportación establecido para el nuevo diseño. De tal forma, el gravamen constituido en el artículo 236 bis cuestionado para gravar los excedentes resultaba requerido, pero no para contribuir al sostenimiento de los egresos normales presupuestados en el nuevo régimen, sino para evitar el desbalance ocasionado por el deber jurídico del Fondo, de atender ciertos egresos heredados del régimen anterior y exorbitantes al nuevo diseño. Bajo este criterio, no existe entonces una doble imposición desde la perspectiva constitucional, pues la finalidad de los dos gravámenes está claramente diferenciada, siendo la cotización del 13 por ciento una carga permanente y con la finalidad de sostener financieramente el fondo y asegurar sus prestaciones, mientras que el aporte especial y solidario del artículo 236 bis, resulta específico y temporal en su propia concepción, (al menos antes de la reforma operada por la 9796) y estaba dirigido a amainar el impacto económico de asumir la carga de las jubilaciones y pensiones del régimen anterior, tanto las que se encuentran en curso de pago, como aquellas ya declaradas en su momento, pero pendientes de su efectivo disfrute por parte de los beneficiarios. A esta altura el Tribunal repite la salvedad de que conoce y tiene clara la existencia y cambios operados con la emisión de la Ley 9796 ya citada, y que lo aquí expuesto vale para la redacción original de la norma 236 bis de la Ley Orgánica del Poder Judicial y para los reparos que respecto de dicho texto hicieron los accionantes.

No está por demás recordar igualmente que la potestad de legislar en general y en materia impositiva en particular no está limitada por la existencia o elaboración de estudios técnicos; no puede entonces pretenderse que el legislador deba tener un estudio técnico específico como condición para ejercer su potestad discrecional en esta materia, pues ello es contrario a la naturaleza y fines del órgano legislativo, tal y como está diseñado en nuestra Constitución Política. En el caso en estudio, la carga impuesta tiene -según se ha analizado- una finalidad válida, se dirige a gravar una capacidad económica indiscutible y es progresiva en su diseño. Además, solo resulta confiscatoria en cuanto exceda el 50% de las cargas que deba soportar una persona sobre su pensión o jubilación, tal como se explicó supra.

En conclusión, el Tribunal estima que el artículo 236 bis de la Ley Orgánica del Poder Judicial, no configura un supuesto de doble imposición constitucionalmente prohibido.

XLVIII. Redacta el Magistrado Araya García. Sobre el reclamo por falta de razonabilidad y proporcionalidad de la contribución especial, solidaria y redistributiva establecida en el artículo 236 bis de la Ley Orgánica del Poder Judicial.- Los accionantes reclaman que la contribución especial solidaria y redistributiva, lesiona los principios de razonabilidad y proporcionalidad porque afecta ampliamente las sumas que al final reciben los jubilados del régimen de Jubilaciones y Pensiones del Poder Judicial que ven reducidos sus pagos no solo con el 13 por ciento de cotización al Fondo sino con porcentajes del 35 al 55 por ciento sobre los excedentes, sin que exista ninguna razón o justificación para ello y solo con la finalidad de evitar que las personas que se ganaron su derecho a percibir una pensión alta reciban tales sumas que se consideran de lujo sin serlo en forma alguna.

XLIX.- Redacta el Magistrado Araya García. De los informes recibidos sobre este aspecto se extrae que la Procuraduría General de la República señala que en atención a la validez que ha dado la Sala a la existencia de contribuciones especiales impuestas a los pensionados de determinados regímenes, es claro que nada se opone, dentro del marco constitucional, a que el legislador imponga una contribución a los afiliados al Régimen de Jubilaciones y Pensiones del Poder Judicial, siempre que esa contribución sea progresiva y proporcional. La Vicepresidenta de la Corte Suprema de Justicia informó que también en este aspecto la Corte estimó inconstitucional dicha contribución pues trata de una carga impositiva que debía respetar los principios constitucionales como la reserva de ley, proporcionalidad, capacidad económica, no confiscatoriedad, entre otros; señalando además que al Poder Legislativo se le hizo atenta instancia para que tuviera especial cuidado con las reducciones que se impongan a efecto de que no resulten confiscatorias pues además de esa contribución solidaria, la jubilación ordinaria se estaba fijando en un 85% -en ese momento así lo señalaba el proyecto-, al que debía de agregársele rebajos como la contribución al Fondo de un 15% -según indicaba el proyecto-, el 5% de seguro de salud, un 15% por concepto de renta y, al sumar todos esos extremos, la persona jubilada ya casi se llegaba al 50% menos en relación con lo que ganaba mientras estaba activa laboralmente, sin tomar en cuenta además que el cálculo no se hizo en ese momento con base en el salario actual sino con una prorrata de los últimos 20 años de labor. Agregó además la representante del Poder Judicial que esta situación no era ajena para las jubilaciones y pensiones ya otorgadas y que se disfrutan pues éstas tienen gravámenes que van del 31% al 35 % del total del derecho, lo que sumado al porcentaje más bajo de la cuota solidaria de 35% arrojaba un total de un 60% que podría resultar confiscatorio, desproporcional y en definitiva, contrario a los principios constitucionales.

L.- Redacta el Magistrado Araya García. Para abordar este reclamo, el Tribunal se remite a lo dicho en considerandos anteriores sobre la naturaleza y finalidad de la contribución especial, solidaria y redistributiva, según el diseño original del artículo 236 bis de la Ley Orgánica del Poder Judicial y recuerda el hecho de que se trata de una carga para aquellos pagos jubilatorios y de pensiones elevadas al nuevo sistema puesto en operación con la reforma. También recalca especialmente que en lo referido al tope máximo de deducciones que los accionantes impugnan como elemento clave para de la falta de razonabilidad y proporcionalidad en la contribución especial, tal cuestión se definió supra, por mayoría, en consonancia con lo dicho en la sentencia número 2020-19274 arriba citada, en cuanto a que el porcentaje de deducciones legales -en los casos en que ellas procedan constitucionalmente- no puede exceder del 50 por ciento del monto bruto de pensión. Además de lo anterior, y en vista de que en el reclamo contra la razonabilidad y proporcionalidad de la contribución especial se emplea como parámetro el concepto del “último salario” o el “nivel de ingreso al momento de la jubilación”, debe reafirmarse lo expuesto por este Tribunal respecto a la insuficiencia de las acciones interpuestas en justificar constitucionalmente la elección de tal parámetro para contrastar los rebajos.

LI.- Redacta el Magistrado Araya García. Señalado lo anterior procede analizar entonces si la estructura de los rebajos en sí misma, genera alguna irrazonabilidad o desproporcionalidad de alcance constitucional que deba ser corregida por este Tribunal, teniendo en cuenta que, tal y como se ha venido sosteniendo por esta Sala, en este tipo de discusiones sobre los montos a percibir, no está en juego el derecho constitucional a recibir una jubilación o una pensión, pues éste último no consiste en el derecho a recibir un monto determinado de dinero y por ende los montos a pagar pueden ajustarse según las posibilidades financieras del Estado y los diseños previsionales, siempre que no se afecte la dignidad de la persona ni se le impida la posibilidad de disfrutar de sus demás derechos fundamentales y en general de llevar una vida digna. En principio, se hace la observación de que esta carga especial, según el diseño discutido en las acciones, buscaba gravar los excesos sobre el tope fijado en el artículo 225 de la Ley Orgánica del Poder Judicial, a saber, diez veces el salario mínimo pagado en el Poder Judicial, el cual se estableció para el año 2020 en 433 800 colones. De tal manera, la aplicación de la contribución especial, solidaria y redistributiva, habría iniciado a deducirse sobre excesos de los pagos superiores a los 4 330 800 colones, cumpliendo de esta forma con el fin propuesto de equilibrar con ingresos extraordinarios, los egresos igualmente extraordinarios que debería enfrentar el fondo; esta necesidad fue planteada con claridad en el estudio y propuesta técnica empleada como base para la legislación por parte de la Asamblea Legislativa, tal y como se observa en el folio 1984 del expediente legislativo que recoge los cuadros resumen de los cuatro marcos normativos propuestos por el IICE y que explican -en el párrafo de ingresos adicionales- la necesidad de una contribución solidaria para aquellos pagos por encima del tope propuesto y se aclaró que se trataba de un único porcentaje. Por otra parte, la necesidad e idoneidad de dicha medida se hace incluso más patente cuando se constata que la Asamblea excluyó del texto final, las sumas correspondientes a los depósitos judiciales abandonados que estaban sumados en la propuesta técnica como recursos adicionales en los citados marcos regulatorios recomendados. También hay que tomar en cuenta que lo aprobado fue una escala progresiva que, en esta materia recaudatoria resulta mucho más protectora para los afectados con lo que -en criterio de la Sala- se satisface la exigencia de proporcionalidad en sentido estricto. Los accionantes insisten en el hecho de que los reclamos puedan alcanzar una magnitud tal que priven a los jubilados y pensionados de la posibilidad de vivir una vida digna, pero lo cierto es que en este aspecto resultan plenamente aplicables los argumentos señalados en la sentencia 2020-19274, que estimó, por mayoría, que la reducción de montos jubilatorios hasta en un 50 por ciento no resulta en sí misma inconstitucional, sino que los interesados deben demostrar que las sumas remanentes efectivamente recibidas son insuficientes para satisfacer sus necesidades básicas como personas mayores y para mantener un nivel de vida que pueda objetivamente estimarse digno. En el caso concreto, y con el tope original arriba indicado, los receptores de las jubilaciones o pensiones más bajas dentro del grupo de las afectadas por esta contribución, especial, solidaria y redistributiva, tendrían que recibir un 50 por ciento del monto bruto; es decir, en el peor de los casos de rebajo para ellos debido a aumentos de contribuciones legales de cualquier tipo, el mínimo a recibir sería 2 150 000 colones. Correspondía a los accionantes demostrar con claridad que dicha suma resulta insuficiente de forma general, para cubrir apropiadamente las necesidades promedio de una persona jubilada o pensionada en nuestro país. Hay que tomar en cuenta, además que, de conformidad con el sistema previsional derivado de la vigencia de la Ley de Protección al Trabajador, los jubilados contarán con sumas adicionales derivadas de sus fondos en los otros dos pilares. De lo expuesto se concluye que tampoco existe ningún vicio de inconstitucionalidad en el diseño original de la contribución especial, solidaria y contributiva recogida en el texto original del artículo 236 bis de la Ley Orgánica del Poder Judicial.

Por otra parte, algunos accionantes cuestionan que, para financiar la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, se haya creado una deducción de un cinco por mil de los sueldos que devenguen los servidores (as) judiciales, así como de las jubilaciones y pensiones a cargo del Fondo, estimando que esa Junta y la carga que supone, resulta injustificable, así como lesiva de los derechos fundamentales de los miembros del Fondo. En relación con este tema debe decirse que al amparo de la Ley 7333 anterior, el Fondo no requería incurrir en ningún gasto de administración por cuanto esa labor se desarrollaba por el Consejo Superior y la Corte Plena, lo cual no generaba ningún costo para sus afiliados; sin embargo, debido a varios cuestionamientos que surgieron en relación con este punto por parte de la Contraloría General de la República y la Superintendencia General de Pensiones, durante las sesiones de la Comisión Especial que analizó el proyecto de ley No. 19922 -que culminó con la promulgación de la Ley No. 9544-, los representantes de ambas instituciones manifestaron a los legisladores la necesidad de que el Fondo del Poder Judicial contara con un mecanismo de administración propio y que no estuviera ligado a las autoridades jerárquicas del Poder Judicial o del Consejo Superior. Así, en comparecencia ante esa Comisión de 16 de noviembre de 2016, la Contralora General de la República manifestó que en el Poder Judicial se necesitaba un órgano que administrara el fondo, mostrando preocupación por la forma en qué se financiaría, señalado que se trataba de un tema que debía ser incorporado en cualquier proyecto de ley que se analizara. Por su parte, en comparecencia del Superintendente de Pensiones ante dicha Comisión el 29 de marzo de 2017, ese funcionario manifestó a los diputados que se necesitaba crear una Junta que administrara el Fondo de Jubilaciones y Pensiones del Poder Judicial debido a que es un tema de buenas prácticas de gobierno corporativo, independiente de cualquier estudio técnico, afirmando además que en el Poder Judicial había sobrecarga del Gerente del Fondo por cuanto era, a la vez, Jefe del Poder Judicial y Jefe del Consejo Superior, por lo que se hacía necesario crear ese órgano, sugiriendo no solo que se utilizara el modelo de la Junta de Pensiones del Magisterio Nacional (JUPEMA), sino también que se financiara con una deducción de un cinco por mil de los sueldos que devenguen los servidores (as) judiciales, así como de las jubilaciones y pensiones a cargo del Fondo; sugerencia que ya había sido previamente planteada por esa Superintendencia en términos similares, según puede observarse en folio 266 del expediente legislativo. Los diputados deciden atender la recomendación de crear la Junta a partir del modelo de JUPEMA y adoptan, como referencia, el artículo 106 de la Ley No. 2248 que es la Ley de Pensiones y Jubilaciones del Magisterio Nacional, que dispone:

“Arti´culo 106.- Financiamiento. Para atender el ejercicio de sus funciones, la Junta recibira´ una comisio´n por gastos administrativos, que surgira´ de deducir, a cada uno de sus asegurados, un cinco por mil (5 x 1000) de los salarios y pensiones del Re´gimen a su cargo.

Con esta deduccio´n, se constituira´ un Fondo Especial de Administracio´n, que debera´ llevarse, contable y fi´sicamente, separado del Fondo de Capitalizacio´n.

Este fondo especial sera´ administrado con la ma´xima prudencia y frugalidad”.

Así las cosas, como bien se desprende de lo dicho, la creación de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial en los términos en que se hizo en el artículo 239 de la Ley 9544 impugnada, se inspiró en un modelo similar existente en el país, por lo que no se trata de una creación experimental del legislador sino que en realidad cuenta con una justificación que es válida y razonable para este Tribunal y, por tanto, los alegatos formulados en este sentido por algunos accionantes, deben ser rechazados.

El pago que se establece no resulta contrario al Derecho de la Constitución, toda vez que, tal y como se expresó supra, dicha contribución parafiscal está dentro de aquellas cargas tributarias que no pueden exceder el 50% del monto bruto de las jubilaciones y pensiones que se deben pagar. Dicho de otra forma, lo relevante es que, conforme a lo señalado supra, la sumatoria de las cargas totales de los jubilados y pensionados, no pueden sumar más de un 50% de la pensión o jubilación. De ahí, en el tanto se le mantenga a la persona ese mínimo vital, no se da la alegada violación. Además, hay que tomar en cuenta que ese cinco por mil constituye la fuente de financiamiento de la Junta que se crea para la Administración del régimen especial, todo lo cual constituye un beneficio paras las personas que pertenecen al régimen especial, pues, en la medida dicho régimen especial se administre con criterios técnico-actuariales, su sostenibilidad en tiempo está garantizada. Para ello, es necesario que se financien los gastos en que debe incurrir la JUNTA. Tampoco se aportan datos concretos que demuestren que la administración de las pensiones se puede hacer con un monto menor, lo cual es indispensable para determinar si la norma rebasa los principios de razonabilidad y proporcionalidad, razón por la cual, no se puede acoger el argumento en la forma en que ha sido planteado, pero sí debe ponderarse ese rubro con las demás cargas, según lo señalado.

LII.- Redacta la Magistrada Hernández López. Sobre los derechos adquiridos y situaciones jurídicas consolidadas de los jubilados y pensionados judiciales en relación con la contribución especial, solidaria y redistributiva. Algunos accionantes alegan que existe también en la contribución especial, solidaria y redistributiva, una infracción al artículo 34 de la Constitución Política. Afirman que, de conformidad con el análisis del proceso constituyente, los derechos patrimoniales adquiridos o las situaciones jurídicas consolidadas, por virtud de la aplicación de una ley vigente, no pueden ser vulnerados por una ley posterior porque la situación jurídica consolidada ha quedado incluida dentro del patrimonio de la persona y tocarlo es quebrantar el principio, también constitucional, de la intangibilidad patrimonial consagrado en el artículo 45 de la Constitución Política. En atención a lo anterior, alegan que es precisamente aquella prohibición constitucional la que ha sido quebrantada en la Ley número 9544 pues sus normas afectan situaciones jurídicas consolidadas, en perjuicio de los jubilados y pensionados del Poder Judicial, de sus derechos patrimoniales adquiridos (pensiones y jubilaciones en curso de pago o previamente declaradas) y situaciones jurídicas consolidadas en forma de beneficios de pensión y jubilación con tutela constitucional de los artículos 73 y 74. Otro sector de accionantes afirman que también se vulneran derechos adquiridos y situaciones jurídicas consolidadas para aquéllos servidores activos que, durante muchos años, han estado cotizando para el Régimen de Jubilaciones y Pensiones del Poder Judicial y ahora, cuando estaban más cerca de jubilarse, se les cambia de manera abrupta las reglas del juego al extremo de que, para obtener el derecho a la jubilación, ahora tendrán que laborar muchos años más, cumplir mayor edad y a cambio recibir una menor prestación jubilatoria. Manifiestan además los accionantes que la introducción de este nuevo rubro para ser rebajado de las pensiones y jubilaciones de los servidores judiciales, implica un cambio novedoso de condiciones que provoca, según afirman, que se disminuya considerablemente el monto líquido a recibir para los beneficiarios, sin tomarse en cuenta que se trata de personas en condición de vulnerabilidad.

LIII.- Continúa redactando la Magistrada Hernández López. La Procuraduría General de la República rechaza la existencia de alguna lesión al artículo 34 de la Constitución Política. Afirma que la jurisprudencia clara de la Sala es contundente respecto de que no existe un derecho fundamental a una determina prestación fijada y que ella puede ser variada en el tiempo si las circunstancias lo requieren y siempre que se respete el derecho a la jubilación, y citan las sentencias 1993-2379 y 1993-3250 donde se analizaron contribuciones especiales impuestas dentro del régimen de jubilaciones y pensiones del Magisterio Nacional. Por su parte, la Corte Suprema de Justicia se pronunció en general sobre la contribución especial, solidaria y redistributiva en los términos ya arriba indicados, en el sentido de que la pensión debe satisfacer las necesidades esenciales de las personas en su etapa de vejez por lo que el monto debe ser fijado tomando en consideración el costa de vida y la situación social durante el período de actividad profesional, es decir, que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa. Por su parte, la Presidenta de la Asamblea Legislativa manifestó que tratándose de la expectativa de derechos referente al régimen de pensiones o jubilaciones, deben atenerse a la legislación vigente y precedentes constitucionales, entendiéndose que la modificación a un régimen específico es factible y no implica en sí misma una vulneración constitucional.

LIV. Continúa redactando la Magistrada Hernández López. Frente al planteamiento de los accionantes, la Sala estima que no se han aportado criterios jurídicos de peso que hagan necesario reconsiderar su amplia jurisprudencia en la que ha sostenido la inexistencia de afectación al artículo 34 Constitucional con el establecimiento de contribuciones especiales como la que se ha creado en la ley número 9544. Como bien sostiene la Procuraduría, la ley 9544 no está eliminando el derecho a la jubilación o a la pensión a las personas que ya se les declaró y que la están disfrutando y de acuerdo con la jurisprudencia asentada, tampoco se puede decir que estas personas tengan un derecho adquirido al monto de la prestación jubilatoria que están recibiendo. En ese punto, el Tribunal ha sido concluyente en cuanto a que no existe un derecho a que la prestación derivada del derecho a la pensión lo sea por un monto específico (ver en ese sentido la propia sentencia 2020-19274 recién mencionada). Tampoco se trata de que se petrifiquen las normas regulatorias del sistema de jubilación porque la Sala también ha admitido que es válido que, conforme sea necesario y siempre cumpliéndose con el respeto de los derechos fundamentales, se hagan las modificaciones que sean necesarias para ajustar el sistema. Así las cosas, no se considera que el sólo hecho de que se hubiera decretado la obligación de aportar una contribución especial, solidaria y redistributiva en este caso esté lesionando algún derecho adquirido de los jubilados o pensionados en los términos en que lo alegan. Tampoco se lesionan situaciones jurídicas de las personas a las que todavía no se les ha declarado el derecho pues debe recordarse que el denominado derecho de pertenencia que este Tribunal ha identificado jurisprudencialmente, hace surgir en favor de los cotizantes un simple expectativa de obtener el derecho a la jubilación, ya que no han generado situaciones consolidadas ni derechos adquiridos en el momento de entrar en vigencia la nueva ley, así que ésta entra a regular dicha situación en el estado en que se encuentre, siendo claro entonces que la norma (art. 34 constitucional) se refiere a las situaciones jurídicas subjetivas ya consolidadas, no así a las que configuran meras expectativas, pues estas, al no haberse perfeccionado el derecho, están indiscutiblemente sujetas a las futuras regulaciones que la ley introduzca. En consecuencia, en cuanto a este extremo, se declara sin lugar la acción.

LV.- Redacta la Magistrada Hernández López. Sobre la contribución especial, solidaria y redistributiva en relación con los derechos de las personas adultas mayores. Consideran los accionantes que la aplicación integrada de las normas 236 y 236 bis de la Ley Orgánica del Poder Judicial a los adultos mayores jubilados y beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial, resulta abusiva y arbitraria por cuanto agrava sus condiciones socioeconómicas y ha implicado una disminución abrupta de sus ingresos que lesiona normativa nacional e internacional de protección de adultos mayores, de su derecho a la calidad de vida y a disfrutar de una vejez digna. Consideran que se vulneran los derechos constitucionales consagrados en los artículos 50, 51 y 73 de la Constitución Política en perjuicio de personas adultas mayores, ello a pesar de que el numeral 51 de la Constitución ha determinado una especial protección para éstos. Afirman que tal protección especial se plasmó por ejemplo en la Ley Integral para la Persona Adulta Mayor número 7935, cuyo artículo primero establece como objetivo, el garantizar a las personas adultas mayores, igualdad de oportunidades y vida digna en todos los ámbitos, así como impulsar la atención integral e interinstitucional de las personas adultas mayores por parte de las entidades públicas y privadas, y también velar por el funcionamiento adecuado de los programas y servicios destinados a esta población, garantizar la protección y la seguridad social de las personas adultas mayores. Agregan además la existencia de instrumentos internacionales que reafirman esa especial protección como el Protocolo de San Salvador, la Carta de San José sobre los Derechos de las Personas Mayores de América Latina y el Caribe y, recientemente la Convención Interamericana sobre la Protección de las Personas Adultas Mayores.

LVI.- Continúa redactando la Magistrada Hernández López. En sus informes sobre el punto, los intervinientes en este proceso señalaron lo siguiente: la Corte Suprema de Justicia reiteró la necesidad de la protección de este colectivo con sustento en lo contenido en la Recomendación No. 43 de la OIT. en cuanto a que hay que garantizar a los trabajadores una vejez sin privaciones, que la pensión debería cubrir las necesidades esenciales y el monto debe ser fijado tomando en cuenta el “coste de vida y la situación social durante el período de actividad profesional”. La Procuraduría General de la República en su respuesta no se refiere de forma concreta a este reclamo, sino que lo subsume en su criterio respecto a la validez de la contribución especial, solidaria y redistributiva, enfatizando que se trata de cargas adicionales solamente para aquellos jubilados y pensionados que reciben sumas altas, con el fin de redistribuir las carga para el mantenimiento del fondo. La Asamblea Legislativa tampoco expuso argumentos concretos sobre este punto y los enmarcó dentro de su criterio sobre la contribución especial, solidaria y redistributiva.

LVII.- Continúa redactando la Magistrada Hernández López. Este Tribunal aborda este reclamo recordando que tal y como lo señalan los accionantes, la protección de las personas adultas mayores forma parte del conjunto de principios que dan forma a un estado social de Derecho, como el que nuestra Constitución Política quiso establecer. En esta línea, se ha señalado por ejemplo en la sentencia número 2007-13584 de las 15 horas 15 minutos del 19 de septiembre del 2007:

“I.- (…) Por su parte, este Tribunal Constitucional ha indicado que, de conformidad con dicha norma, el Estado costarricense tiene un deber dual de, en primer término, crear un marco normativo adecuado con el fin de brindar una protección especial para esos grupos de personas, lo que constituye un verdadero derecho fundamental. En segundo término, le corresponde respetar y hacer respetar, a través de las correspondientes dependencias administrativas y tribunales de justicia, tales derechos. Asimismo, se ha concluido que, a partir de la consagración del Estado Social de Derecho derivable de las disposiciones contenidas en los artículos 50 y siguientes de la Carta Fundamental, es posible extraer obligaciones para las autoridades públicas, precisamente, en aras de la búsqueda del mayor bienestar de “todos los habitantes del país”, dentro de los cuales, el Derecho de la Constitución señala de manera especial a los niños, a las madres, al anciano y a las personas desvalidas. Así, el Estado Social, consagrado en nuestra Constitución Política, desarrolla en su contenido normativo una relevante y obligada protección e intervención estatal en materia social a favor de aquellos sectores especialmente vulnerables de la población que, por su condición, así lo requieran; tal es el caso -sin duda alguna- de los ancianos, personas de la tercera edad o personas adultas mayores” A lo anterior deben sumarse las obligaciones internacionales fijadas en la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, ratificada por Costa Rica mediante Ley No. 9394 de 8 de septiembre de 2016, a través de la cual se busca asegurar el reconocimiento y pleno goce del ejercicio, en condiciones de igualdad, de todos los derechos humanos y libertades fundamentales de las personas adultas mayores (ver en ese sentido sentencia número 2018-006290 de las 9 horas 20 minutos del 20 de abril de 2018). Dicha normativa otorga un marco jurídico de rango superior a partir del cual le corresponde al Estado tomar acciones concretas en protección de este sector de la población, y Sala en su jurisprudencia, ha protegido los intereses y derechos de las personas adultas mayores de las que ha determinado en una situación de especial vulnerabilidad, lo cual es acorde con la política del Poder Judicial de priorizar la atención de este colectivo de la población y brindarle servicios con una especial consideración, así como trato preferencial (ver en sentido similar, entre otras, la sentencia número 2007-013584 de las 15 horas 15 minutos del 19 de septiembre de 2007).

LVIII.- Redacta el Magistrado Araya García. Al analizar la situación que los accionantes plantean, el Tribunal considera que el diseño de la contribución especial, solidaria y redistributiva contemplado en el artículo 236 bis de la Ley Orgánica del Poder Judicial, no genera ninguna afectación a los derechos fundamentales de las personas mayores en cuanto se resguarda un porcentaje determinado como núcleo duro de pensión que no pude ser afectado, según lo expresado por la mayoría, con un porcentaje mayor al 50%. En considerandos anteriores se han venido descartando las lesiones alegadas al conjunto normativo de los derechos fundamentales, pues se ha señalado que la normativa establecida en la Ley número 9544 para darle sostenibilidad al Régimen de Jubilaciones y Pensiones del Poder Judicial no infringe el derecho a la jubilación; igualmente, al analizar la razonabilidad y proporcionalidad de la contribución especial, se concluyó que el gravamen que fija es razonable y proporcionado dado que opera únicamente para un grupo de personas que al momento de promulgarse la ley, recibían sumas más altas que el tope fijado para la apropiada sostenibilidad del fondo. Igualmente, ese gravamen es progresivo de manera que, dentro del grupo gravado, quienes reciben las sumas más altas deben entregar más al sostenimiento del fondo. También se explicó más arriba, que los montos concretos que han sido objeto del gravamen especial, dada su alta cuantía, dejan en manos de los jubilados y pensionados afectados una suma remanente respecto de la cual los accionantes no han logrado demostrar, ni siquiera indiciariamente, su manifiesta insuficiencia para dar soporte económico a una vida digna y al disfrute de los derechos humanos que integran el haber de las personas mayores, más aun tomando en cuenta que precisamente en atención a las obligaciones constitucionales y convencionales, el Estado -en sentido lato- ha venido construyendo una estructura de soporte en diversos ámbitos para asegurar no solo a los jubilados sino a todas las personas mayores precisamente esa dignidad en la vejez. En conclusión, tal y como se afirmó, no se ha demostrado ninguna afectación concreta de las posibilidades de disfrute efectivo de derechos fundamentales y de la posibilidad de vivir una vida digna, reconocidas en favor de las personas mayores por los instrumentos normativos de diverso rango y por la jurisprudencia de la Sala por lo que, en consonancia, la acción declararse sin lugar también en este punto.

D. RECLAMOS RELATIVOS AL CAPITULO IV TITULADO “LA ADMINISTRACIÓN” DEL TÍTULO IX “RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL” DE LA LEY ORGÁNICA DEL PODER JUDICIAL LIX.- Redacta la Magistrada Hernández López. Observaciones generales sobre el capítulo IV denominado “la administración” luego de las reformas operadas por la Ley número 9544. La Ley número 9544 reformó el capítulo IV del Título IX de la Ley Orgánica del Poder Judicial, que ahora consta de 5 artículos que comprenden del 239 al 242 incluyendo un 240 bis. Dicha normativa entrega la administración del Fondo de Jubilaciones y Pensiones del Poder Judicial a una Junta Administrativa del Fondo que será la encargada de realizar aquella función, así como otras que se le otorgan en esta ley. En este capítulo se determinan las funciones, potestades y obligaciones de este nuevo órgano, así como lo relativo al papel que ejercerá la Superintendencia de Pensiones (SUPEN) y el Consejo Nacional de Supervisión del Sistema Financiero (CONASSIF) en relación con ese órgano. En cuanto a este capítulo, los accionantes plantean diversos aspectos que consideran lesivos del Derecho de la Constitución y que específicamente están enfocados hacia el artículo 239 en lo que se refiere a la creación de la Junta Administrativa. En cuanto a la mayoría de tales reclamos, este Tribunal remite a lo dicho al analizar las objeciones relativas al procedimiento legislativo, pues tienen que ver con una alegada infracción a las competencias constitucionales y la autonomía de la Corte Suprema de Justicia como uno de los supremos poderes de la República. Resta sin embargo un tema de fondo que se analiza de seguido.

LX.- Redacta la Magistrada Hernández López. Sobre el reclamo por la infracción del principio de reserva legal en algunas atribuciones de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial. Los accionantes plantean que el artículo 239 de la Ley Orgánica del Poder Judicial, reformado por la Ley número 9544, fija competencias a la Junta Administradora del Fondo, que lesionan el principio de reserva de ley. En lo que interesa el texto de dicha disposición señala:

“Artículo 239- Se crea la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

(…)

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.” (el subrayado no está en el original) Se reclama que, con vista del texto normativo la Junta podrá tomar decisiones sin parámetros legales y que pueden generar afectaciones directas al ejercicio de derechos fundamentales, de modo que existe una vulneración del principio de reserva de ley. En su informe la Procuraduría señala que, en efecto, el régimen de ejercicio de derechos fundamentales solo puede ser modificado por la Asamblea Legislativa en aplicación del citado principio de reserva legal. Señala que la disposición citada admite una interpretación conforme con la Constitución Política en el sentido de que los cambios que puede hacer la Junta son aquellos que se realicen dentro de los parámetros que hayan sido establecidos por el legislador. La Corte Suprema de Justicia no hizo pronunciamiento concreto sobre el tema, pero señaló que la Junta es una figura atípica que somete a la Corte Suprema a un ajuste en su funcionamiento para poder velar por su buen funcionamiento.

LXI.- Continúa redactando la Magistrada Hernández López. Sobre este punto, esta Sala apunta que efectivamente el principio de reserva legal debe ser respetado cuando el Estado pretende fijar una limitación de los derechos fundamentales reconocidos en favor de las personas. Dicho principio tiene en sí mismo un rango fundamental para la constitución de un régimen democrático, tal como ha sido reconocido ampliamente por la jurisprudencia del Tribunal (ver entre muchas, las sentencias número 2002-01764 de las 14 horas 37 minutos del 20 de febrero del 2002, número 2008-017305 de las 14 horas 59 minutos del 19 de noviembre del 2008 y número 2009-013605 de las 14 horas y 56 minutos del 26 de agosto de 2009). También ha señalado este Tribunal que el principio de reserva legal no sólo garantiza la libertad frente al resto de los ciudadanos, sino que constituye una garantía de control frente al poder público pues, precisamente, la regulación reglamentaria de una actividad que incide en una multiplicidad de derechos fundamentales, requiere de un marco normativo de rango legal, de manera tal que los derechos fundamentales no pueden quedar sustraídos del debate público que se genera en la Asamblea Legislativa, siendo que la Administración Pública carece de legitimidad para regular el ejercicio de los derechos fundamentales, lo cual está recogido en la Ley General de la Administración Pública cuando se indica que “El régimen jurídico de los derechos fundamentales estará reservado a la Ley, sin perjuicio de los Reglamentos Ejecutivos correspondientes”.

Al revisar contra ese marco jurídico las potestades que se le han dado en el párrafo discutido del artículo 239 de la Ley Orgánica del Poder Judicial, la Sala considera que lo allí dispuesto contraviene el principio de reserva de ley y por ello es inconstitucional. Obsérvese que además de su función de administrar el Fondo de Jubilaciones y Pensiones del Poder Judicial, esa Junta va a tener potestades de modificar prácticamente todos los parámetros establecidos en la Ley, a saber: los requisitos de elegibilidad, perfil de beneficios, así como los porcentajes de aportes de los servidores judiciales y de las jubilaciones y pensiones previstas en la ley. Ahora bien, no existe discusión en este proceso respecto del hecho de que las actividades descritas inciden directamente en la manera en que los beneficiarios disfrutan de su derecho constitucional a la jubilación. En especial, encuentra la Sala inaceptable la modificación por la vía de acuerdo de la Junta, de los requisitos de elegibilidad y el perfil de beneficios que sin duda alguna hacen parte fundamental de ese derecho de jubilación que se busca garantizar con la intervención legislativa a través de la reforma. No existe además necesidad de alguna elaboración en este caso sobre la validez y posibilidad de que el legislador pueda delegar en la Junta -a través del establecimiento de márgenes- la modificación de los elementos esenciales del régimen, porque lo cierto y evidente es que la ley número 9544 impugnada no dejó dispuesto tal mecanismo en el texto legal; por el contrario, temas como las condiciones de elegibilidad, el perfil de beneficios y las cargas para los participantes del Fondo, se dejaron establecidos con precisión y sin opciones, por lo que el hecho de que en la misma reforma legislativa la Asamblea haya dispuesto la posibilidad de su modificación sin referencias a mínimos o máximos y atendiendo solo a las valoraciones de la propia Junta respecto de estudios actuariales, resulta abiertamente inconstitucional. No puede olvidarse que -como se explicó- tales determinaciones legislativas modulan el ejercicio de un derecho constitucional como lo es el de jubilación de las personas trabajadoras, de modo que una delegación sin restricciones a un órgano administrativo para que -en caso necesario- pueda dejar sin efecto normas legales vigentes, resulta ajena a las potestades de la Asamblea Legislativa, y desatiende sus obligaciones constitucionales derivadas del respeto debido del principio de reserva legal. Por lo dicho, es inatendible la posición de la Procuraduría en cuanto plantea una interpretación conforme, pues en este caso no existen márgenes de determinación que hayan sido recogidos por el Legislador y dentro de las que Junta pudiera concretar sus atribuciones. La conclusión necesaria de lo expuesto es que existe una infracción constitucional al entregarse a un órgano administrativo la determinación de las condiciones y modalidades de ejercicio de su derecho constitucional a la jubilación por lo que debe eliminarse por inconstitucional el párrafo del artículo 239 de la Ley Orgánica del Poder Judicial, que dice: Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen”.

E. RECLAMOS RELACIONADOS CON LAS DISPOSICIONES TRANSITORIAS CONTENIDAS EN LA LEY NÚMERO 9544.

LXII.- Redacta la Magistrada Hernández López. Descripción de las disposiciones transitorias recogidas en la Ley número 9544. La reforma introducida en la Ley número 9544 contiene 6 disposiciones transitorias: la I y la III se refieren a los plazos en los cuales, por un lado, debería estar integrada la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, y por el otro, emitido el Reglamento General del Régimen de Jubilaciones y Pensiones del Poder Judicial. La disposición transitoria número IV aclara que continuarán formando parte de aquel fondo, los recursos por concepto de cotización obrera, patronal y del Estado que a la fecha de entrada en vigencia de la Ley 9544, estén siendo administrados por el Consejo Superior del Poder Judicial, así como los rendimientos y demás beneficios que éstos hayan producido. Por su parte, el transitorio V refiere que las operaciones de crédito con recursos del Fondo de Jubilaciones y Pensiones del Poder Judicial que hubieren sido acordadas por el Consejo Superior con anterioridad a la Ley, se mantendrían en vigencia hasta su vencimiento y no serán susceptibles de renovación. Las normas transitorias II y VI son las que se impugnan en esta acción de inconstitucionalidad y se analizarán a continuación.

LXIII.- Redacta la Magistrada Hernández López. Sobre el reclamo contra el Transitorio II de la Ley No. 9544.- La norma transitoria II de la Ley número 9544 estipula lo siguiente:

“TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N° 7333 Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean”.

Los accionantes argumentan que se da un trato discriminatorio en perjuicio de los servidores judiciales en lo que se refiere al tratamiento de los derechos adquiridos frente a los funcionarios del Tribunal Supremo de Elecciones que cotizan al Régimen de Pensiones y Jubilaciones del Poder Judicial. Contrastan el distinto tratamiento que hizo el legislador en relación al tema de los derechos adquiridos pues, sin ninguna razón objetiva que lo justifique, se dispuso un trato diferenciado y ventajoso para aquellos servidores que, perteneciendo al Régimen de Pensiones y Jubilaciones del Poder Judicial, trabajen en el Tribunal Supremo de Elecciones, pues a ellos se les declaró un derecho irrestricto de pertenencia a aquel régimen, pero sobre la base de la normativa derogada, sin importar el tiempo que durasen en cumplir aquellos requisitos. Se dice que la norma transitoria es totalmente discriminatoria al distinguir entre los afiliados del Régimen de Jubilaciones y Pensiones del Poder Judicial, de modo que algunos de ellos son los que laboran para el Poder Judicial y otros son los que trabajan para el Tribunal Supremo de Elecciones, pero estos últimos contarán con mayores beneficios que los otros. En relación con esa diferenciación, los accionantes se cuestionan la necesidad de esta diferencia solicitando entonces que se declare la inconstitucionalidad del Transitorio II de la Ley número 9544 por violación del principio de igualdad y no discriminación contenido en el artículo 33 de la Constitución Política. En relación con este específico aspecto no existe pronunciamiento por parte de los informantes en esta acción.

LXIV.- Continúa redactando la Magistrada Hernández López. La cuestión que aquí se plantea, fue revisada por la Sala con ocasión de la consulta legislativa facultativa presentada en su momento por integrantes de la Asamblea Legislativa en relación con el proyecto que dio origen a la Ley número 9544. En la sentencia 2018-5758, en la que se dio respuesta a dicha consulta, la Sala expuso lo siguiente:

“XX.- Sobre el transitorio II del proyecto de ley consultado. Finalmente, los(as) consultantes estiman que el transitorio II del proyecto consultado resulta contrario al numeral 33 constitucional, en tanto establece un privilegio para los(as) funcionarios(as) del Tribunal Supremo de Elecciones. Dicha norma dispone lo siguiente:

TRANSITORIO II- Las personas funcionarias del Tribunal Supremo de Elecciones a los que hacía referencia el artículo 242 de la Ley N.°7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas, que hayan cotizado al Fondo de Jubilaciones y Pensiones del Poder Judicial de previo a la entrada en vigencia de esta ley, la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe. No obstante, quedan facultados para solicitar, en los términos dispuestos en los artículos 226 y 234 de esta ley, la devolución de las cotizaciones obreras, estatales y patronales realizadas al Fondo de Jubilaciones y Pensiones del Poder Judicial, a fin de que puedan trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte, administrado por la Caja Costarricense de Seguro Social (CCSS), si así lo desean.

Previo a analizar el vicio cuestionado, la Sala considera necesario hacer referencia a los conceptos de derechos adquiridos y situaciones jurídicas consolidadas. Sobre el particular, en la sentencia número 2765-97 de las 15:03 del 20 de mayo de 1997, se dispuso, en lo que interesa, lo siguiente:

“Los conceptos de ‘derechos adquiridos’ y ‘situaciones jurídicas consolidadas’ aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la ‘situación jurídica consolidada’ representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante en cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo ‘si…, entonces…M, vale decir: si se ha dado el hecho condicionante, entonces la ‘situación jurídica consolidada’ implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege –tornándola intangible – la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

Ahora bien, del estudio de la norma cuestionada se desprende que no presenta el vicio alegado, pues, contrario a lo que parecen entender los(as) consultantes, ésta no pretende crear a favor de los(as) funcionarios(as) del Tribunal Supremo de Elecciones una situación diferenciada con respecto a los demás cotizantes del Fondo, sino únicamente tutelar aquellos derechos adquiridos de buena fe. En ese sentido, el transitorio no dispone de modo alguno que la reforma que se hace al Régimen de Pensiones y Jubilaciones del Poder Judicial no les sea aplicable a los(as) funcionarios(as) a los que hace referencia, pues éstos también se verán afectados por ésta, siendo prueba de ello el hecho de que el propio artículo les otorga la posibilidad de trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, en caso de que lo deseen. En virtud de lo anterior, la Sala descarta que el numeral cuestionado otorgue a los(as) servidores(as) del Tribunal Supremo de Elecciones un derecho adquirido a permanecer bajo las condiciones actuales del Régimen de Pensiones y Jubilaciones del Poder Judicial, por lo que se descarta el alegato de los(as) consultantes.” (2018-5758 del 12 de abril de 2018) Esta vez, quienes plantean el reclamo representan a gran cantidad de los participantes del Fondo de Jubilaciones y Pensiones del Poder Judicial y aportan razones y argumentos para sostener que, contrario a lo entendido por la Sala en aquel momento, el texto sí crea un tratamiento diferente que amerita ser revisado de nuevo por entender que contraviene el principio de igualdad.

LXV.- Redacta la Magistrada Hernández López. Sobre el Transitorio II de la Ley 9544 y los principios de igualdad y no discriminación. Como un primer elemento importante para sustentar esta decisión, debe tenerse presente lo que disponía el artículo 242 de la Ley Orgánica del Poder Judicial número 7333 previo a su reforma, toda vez que el transitorio II impugnado hace referencia a ese numeral:

“ARTICULO 242.- Los Magistrados del Tribunal Supremo de Elecciones y el Director del Registro Civil que antes de su elección hayan sido abogados funcionarios judiciales, con un servicio mayor de cinco años, podrán permanecer protegidos con el Plan de Jubilaciones y Pensiones de esta Ley, y el tiempo que sirvieren en esos organismos se les computará como si lo fuera en el Poder Judicial. Continuarán esos funcionarios contribuyendo en la forma que lo exige el artículo 236 de esta Ley. Dichos Magistrados tendrán los mismos beneficios que los Magistrados de la Corte Suprema de Justicia, y el Director del Registro, los beneficios señalados para los jueces, en igualdad de circunstancias. El Estado, en esos casos, debe pagar por esos funcionarios la cuota que señala el inciso 2 del artículo 236 citado, sobre la suma destinada en el presupuesto general de gastos para atender sus sueldos en el Tribunal Supremo de Elecciones y en el Registro Civil. Esta cuota será depositada conforme se indica en el referido inciso 2”.

La revisión de los antecedentes muestra que esta norma se incluyó en la reforma general realizada en el año 1993 a la Ley Orgánica del Poder Judicial y recogió un caso de excepción para aquellos abogados funcionarios judiciales que, con al menos cinco años de servicio en el Poder Judicial y cotización para el régimen de jubilaciones y pensiones del Poder Judicial, fueran nombrados como Magistrados del Tribunal Supremo de Elecciones o en el cargo de Director del Registro Civil. Esa excepción consistió en abrir la opción para que los citados servidores públicos pudieran mantenerse como participantes en el régimen de Jubilaciones y Pensiones del Poder Judicial -para el cual habían estado cotizando por al menos cinco años- siempre que siguieran pagando su cuota correspondiente y se estableció que tendrían los mismos beneficios de los Magistrados del Poder Judicial y de un juez para el caso del Director del Registro Civil. También se ordenó al Estado presupuestar y depositar los dineros correspondientes a su contribución, según los sueldos percibidos en el Tribunal Supremo de Elecciones. Se concluye de aquel texto que quienes optaran en su momento por permanecer como participantes del régimen del Poder Judicial, lo hacían en los mismos términos y condiciones que los demás participantes es decir, por una parte “(c)ontinuarán esos funcionarios contribuyendo en la forma que lo exige el artículo 236 de esta Ley…” en palabras de la norma, y por otra, en lo que se refiere a los beneficios del régimen, se ordenó que: “Dichos Magistrados tendrán los mismos beneficios que los Magistrados de la Corte Suprema de Justicia, y el Director del Registro, los beneficios señalados para los jueces, en igualdad de circunstancias” Ahora, al emitirse la Ley número 9544 donde se modificó extensamente el régimen de Jubilaciones y Pensiones del Poder Judicial, el Legislativo, y entre otras cosas, aumentó las cargas de los participantes y redujo los beneficios a percibir, todo en favor de la sostenibilidad del régimen. Y se introdujo además una norma transitoria II en donde mantiene abierta la posibilidad otorgada en 1993 para que los servidores supra citados puedan trasladar sus cuotas al régimen de Invalidez Vejez y Muerte de la Caja Costarricense del Seguro Social, o bien permanecer como participantes en el régimen del Poder Judicial; no obstante, si decidieran permanecer como participantes del Fondo del Poder Judicial, se agrega una condición que no existe para los demás participantes del Fondo y es que tendrían en su favor el hecho de que: “ la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe.”.

Es en este último punto donde los accionantes encuentran un disposición discriminatoria, pues sostienen que para ellos, como servidores judiciales, rige el transitorio VI de la Ley número 9544 que define la situación de los funcionarios judiciales activos que han venido cotizando del Fondo y en el que se deslinda quienes quedan cubiertos por la ley derogada (o sea aquellos a quienes la nueva normativa no les será aplicada en su perjuicio) y a quienes se les aplicará la nueva normativa sin atenuaciones:

“TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.” Se concluye de lo anterior que -para efectos de determinar la normativa aplicable, se crearon dos categorías separadas de servidores en activo participantes del fondo: una compuesta por los servidores judiciales que “ cumplan los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.º 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley” y que podrán jubilarse con los requisitos del régimen anterior, y la otra compuesta por los demás servidores judiciales que no cumplan esa condición, para quienes procede la aplicación de la nueva normativa. Sin embargo, afirman los interesados, los servidores mencionados en el artículo 242 de la Ley derogada que decidan permanecer en el régimen de Jubilaciones y Pensiones del Poder Judicial, recibirán un tratamiento distinto pues se les ubicó en una tercera categoría diferente reflejada en la frase del transitorio II de la Ley número 9544: “la presente reforma no les será aplicada en su perjuicio y en todo momento se les deberá respetar sus derechos adquiridos de buena fe” LXVI.- Continúa redactando la Magistrada Hernández López. En los términos expuestos, la Sala concluye que la norma no es necesariamente inconstitucional pero sí es confusa y por lo tanto, debe interpretarse según lo establecido en el precedente de la Sala establecido recogido en la sentencia número 2018-5758, pues allí el Tribunal entendió que no podía darse una diferencia de tratamiento en favor de los servidores mencionados en el artículo 242 de la Ley Orgánica del Poder Judicial, ya que:

“…contrario a lo que parecen entender los(as) consultantes, ésta no pretende crear a favor de los(as) funcionarios(as) del Tribunal Supremo de Elecciones una situación diferenciada con respecto a los demás cotizantes del Fondo, sino únicamente tutelar aquellos derechos adquiridos de buena fe. En ese sentido, el transitorio no dispone de modo alguno que la reforma que se hace al Régimen de Pensiones y Jubilaciones del Poder Judicial no les sea aplicable a los(as) funcionarios(as) a los que hace referencia, pues éstos también se verán afectados por ésta, siendo prueba de ello el hecho de que el propio artículo les otorga la posibilidad de trasladarse al Régimen de Pensiones, Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, en caso de que lo deseen.” (Sentencia número 2018-5758 citada) Así, pues, la mayoría de este Tribunal coincide en que la interpretación correcta de la frase “esta reforma no se aplicará” llevaría a entender que se refiere a las personas que han consolidado su derecho a la jubilación o la pensión, mas no así cuando la persona activa no ha cumplido los requisitos jubilatorios, pues a estos últimos se les aplica en toda su extensión las reformas introducidas en la ley que se impugnada, de ahí que las personas que caen en este último supuesto están en la mismas condiciones que los trabajadores activos del Poder Judicial, por lo que no hay un quebranto al principio de igualdad.

A mayor abundamiento, debe señalarse que la simple mención y referencia a derechos adquiridos en el citado transitorio II no resulta constitucionalmente ilegítima o contraria al principio de igualdad si se entiende que dicha expresión debe comprenderse en el contexto y sentido descritos en el considerando pertinente de la sentencia 2018-5758, es decir, que los servidores mencionados en el Transitorio II discutido gozan de derechos adquiridos como participantes en el Fondo de Jubilaciones y Pensiones del Poder Judicial, pero con el mismo alcance y en pie de igualdad con los demás participantes que laboran directamente para el Poder Judicial. Por ello, la simple afirmación de que a los servidores mencionados en el artículo transitorio II disputado se les respetarán sus derechos adquiridos, no ha creado una categoría diferente frente a los demás participantes del fondo, porque por imperativo constitucional a todos los participantes sin excepción, según sea el caso y aunque no se diga de forma expresa, se les deben respetar sus derechos adquiridos en los términos y condiciones que este Tribunal ha señalado a través de su jurisprudencia, para la materia previsional. En ese específico sentido, la mera mención en abstracto del respeto de los derechos adquiridos para un grupo de participantes no conlleva en absoluto un cambio real en sus derechos y obligaciones que los distinga de los demás participantes, tal y como se expuso en la consulta legislativa 2018-5758.

LXVII.- Redacta el Magistrado Castillo Víquez. Sobre el reclamo contra el Transitorio VI de la Ley número 9544. Según se explicó supra, la otra norma transitoria de la Ley número 9544 que los accionantes impugnan es el artículo Transitorio VI, que establece:

“TRANSITORIO VI.- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley No. 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto”.

Los accionantes argumentan que se trata de una disposición desproporcionada y arbitraria, y que los 18 meses fijados son un lapso irrazonable que en algún momento estableció la Sala y que ahora se adoptó por el legislador sin contar con estudio técnico que lo justifique. Estiman que se lesionan derechos consolidados y derechos adquiridos, y sostienen que se vulnera la seguridad jurídica y se quebranta la confianza en el sistema; que lesiona las expectativas de las personas y el proyecto de vida de los que estaban cerca de jubilarse y lesiona la solidaridad que es un principio relacionado con la seguridad social. Estiman que además se contradice con el artículo 224 de la misma ley pues en éste se reconoce un derecho adquirido a los servidores con 20 o más años de servicio en el Poder Judicial, en tanto que en este transitorio no se reconoce ese lapso a los trabajadores con más de 20 años de servicio y en su lugar, se los otorga únicamente a quienes cuentan con 28 años y 6 meses al momento de entrar en vigencia la ley. La Procuraduría señaló que el derecho a disfrutar la jubilación se adquiere cuando se cumplen todos los requisitos previstos en la normativa y antes de eso lo que hay es una simple expectativa de derecho que no es asimilable a una situación jurídica consolidada. Se afirma que la Sala ha dicho que es suficiente un plazo de 18 meses para que la modificación de las condiciones no afecte al administrado que cumpla con los requisitos dentro de ese plazo y el mal llamado derecho de pertenencia no pasa de ser una simple expectativa que exclusivamente a quienes lleguen a alcanzar los requisitos en los 18 meses. El Transitorio VI implica que los cambios no fueron intempestivos ni repentinos. La Asamblea Legislativa indica que, tratándose de la expectativa de derechos referentes a régimen de pensiones o jubilaciones, deben atenerse a la legislación vigente y precedentes constitucionales, entendiendo que la modificación a un régimen específico es factible y no implica, en sí misma, una vulneración constitucional. El plazo otorgado atiende a los parámetros requeridos para garantizar los eventuales derechos de las personas que cumplan con los requisitos dispuestos en la normativa y que con ello no se realice una modificación súbita a la norma. La Corte Suprema de Justicia expuso que en sus respuestas a la Asamblea siempre manifestó la necesidad de una gradualidad en la implementación del cambio normativo para respetar las expectativas válidas de las personas con más años de servicio.

LXVIII.- Continúa redactando el Magistrado Castillo Víquez. La cuestión de la posible inconstitucionalidad del transitorio VI de la Ley 9544 impugnado también fue analizada como parte de la respuesta dada a la Asamblea Legislativa con ocasión de la consulta realizada al entonces proyecto de ley número 19922 de reforma del régimen de Jubilaciones y Pensiones del Poder Judicial. En la sentencia número 2018-5758 tantas veces citada, la Sala dijo:

“XVII.- Sobre los cambios en los requerimientos para obtener el derecho de pensión. Los(as) consultantes consideran que el artículo 224 del proyecto de ley lesiona los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar, pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Asimismo, cuestionan el transitorio VI del proyecto, que dispone que solamente aquellas personas que estén a 18 meses de cumplir los requisitos para adquirir el derecho de pensión, podrán hacerlo al amparo de lo establecido por la Ley N° 7333. Las normas cuestionadas disponen lo siguiente:" Artículo 224- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años.

TRANSITORIO VI- Los servidores judiciales que cumplan con los requisitos para adquirir el derecho a la pensión según lo establecía el texto del título IX de la Ley N.° 7333, de 5 de mayo de 1993, dentro de los dieciocho meses posteriores a la promulgación de la presente ley, podrán pensionarse al amparo de las disposiciones establecidas en el mencionado texto.

Previo a entrar a analizar el fondo del alegato planteado, hay que tener presente que el derecho de jubilación constituye la prestación económica que se obtiene luego de laborar y cotizar para un determinado régimen por un plazo establecido, y cuyo fin es garantizar una vida digna a la persona luego de que por razones de edad o invalidez se retira del mercado de trabajo. Dicho derecho, que se deriva del numeral 73 constitucional, se obtiene a partir del momento en que la persona cumple con todos los requisitos establecidos por la legislación vigente, pues en ese momento se da la situación de hecho que prevé la norma para otorgarse el beneficio. Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente: […]

Por otra parte, la Sala también ha sostenido que existe una diferencia sustancial entre el derecho de pertenencia a un determinado régimen de pensiones, y el derecho concreto a disfrutar de una pensión. Sobre el particular, en el voto número 98-6491 de las 9:45 del 10 de septiembre de 1998, se dispuso sobre el particular lo siguiente:

• A)SOBRE LA MODIFICACION DE LA EDAD Y EL TIEMPO DE SERVICIO PARA JUBILARSE: Al tratar el tema de los derechos adquiridos en materia de pensiones, la Sala ha insistido en anteriores pronunciamientos en una diferencia medular entre el derecho de pertenencia al régimen y el derecho concreto a disfrutar de la pensión. Sobre estos dos matices del derecho adquirido a la jubilación señaló la Sala:

"En este sentido, es preciso observar que ese derecho deja de ser una simple expectativa y se adquiere desde que se ingresa al régimen jubilatorio, al menos como derecho general de pertenencia al mismo, y desde el instante en que el beneficiario se encuentra en las condiciones de hecho previstas para recibir el beneficio, como derecho a la prestación actual, sin que sea necesario que la haya reclamado, ni mucho menos declarado el reconocimiento o comenzado a percibirla... de la misma manera que el derecho a la herencia se adquiere en el momento de la muerte del causante, no en el de la apertura del juicio sucesorio, ni, mucho menos, en el de la adjudicación del derecho hereditario o de la entrega de los bienes al heredero." (sentencia Nº1147-90 de las 16:00 horas del 21 de setiembre de 1990).

I.- En el primero de los casos, el derecho de pertenencia a un régimen jubilatorio guarda un mayor grado de abstracción y consiste, en esencia, en el derecho a que permanezca el régimen de pensiones propio de la institución en que se labora, así como sus elementos o condiciones definitorias. El derecho a pertenecer al régimen significa a no ser excluido, a que se mantengan sus parámetros generales, como podría ser que la contribución sea tripartita —condición, que, por cierto, en proporciones similares es por sí misma un derecho constitucional, sin perjuicio de que la contribución estatal sea igual en todos los regímenes—. Por sus características, este derecho se adquiere por el solo ingreso a él, sin embargo, como ya se dijo, sus consecuencias son mucho más restringidas que las que se expondrán para el caso del derecho concreto a la pensión.

II.El derecho concreto a gozar de la jubilación es aquél que tradicionalmente se ha utilizado como ejemplo para explicar el concepto de derecho adquirido. En esos mismos términos siempre se consideró que nacía en el momento en que el trabajador cumplía los requisitos exigidos por la ley vigente en ese momento para acceder al beneficio jubilatorio. Consecuencia de este razonamiento y de la diferencia de grado que se ha hecho es la indicada en la resolución número 6124-93 de las 14:30 horas del 23 de noviembre de 1993:

"En cuanto al goce efectivo del mismo, es un derecho que no puede limitarse, condicionarse o suprimirse en forma irracional en modo alguno, cuando se ha adquirido el derecho como tal, constituyéndose así en un derecho absoluto de disfrute. Sin embargo, no sucede del mismo modo con la expectativa de los trabajadores que cotizan para un régimen determinado, de manera que es hasta que se cumple con todos los presupuestos de ley -edad, años de pagar las cuotas, monto, etc.- que se obtiene dicho derecho.

Así, la pertenencia a un régimen determinado de pensiones o jubilaciones se adquiere desde el momento en que se comienza a cotizar en dicho régimen, pero el derecho concreto a la jubilación se adquiere cuando el interesado cumple con todos los presupuestos establecidos por ley, y no antes, como lo reclaman los accionantes, al considerar que la modificación de las condiciones para obtener este derecho es inconstitucional. Los mismos ostentan un derecho a la pertenencia de un régimen de pensiones, que en este caso es el régimen de Hacienda, ya que lo que la normativa impugnada -Ley Marco de Pensiones, número 7302- lo que hizo fue unificar los diferentes regímenes existentes y crear un "marco común", sin alterar en lo más mínimo el régimen de pertenencia de pensión de los empleados públicos. En efecto, es reconocido que tales regímenes están regulados mediante ley, la cual puede ser modificada o derogada en virtud de otra ley, y pretender que los presupuestos no pueden ser modificados nunca implicaría crear una limitación a cada régimen de pensiones y jubilaciones ya existente, que tiene rango constitucional en cuanto a su creación en general, pero no en cuanto a las especificaciones en particular. (En este mismo sentido, ver los pronunciamientos número 1341-93, de las 10:30 horas del 29 de marzo de 1993 y 3063-95 de las 15:30 horas del 13 de junio de 1995).

Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Ante dicho panorama, la Sala considera que las normas cuestionadas no resultan inconstitucionales, en el tanto su fin es, precisamente, garantizar la permanencia del Régimen de Pensiones y Jubilaciones del Poder Judicial, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19.922, así como de estudios de naturaleza técnica que constataron la existencia de una problemática que puede llegar a afectar la sostenibilidad del Régimen mencionado, y para lo cual emitieron una serie de recomendaciones. En ese sentido, al comprobar que la variación de requisitos dispuesta por el numeral 224 y el plazo fijado por el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado.” LXIX.- Continúa redactando el Magistrado Castillo Víquez. En la cita anterior, este Tribunal abordó precisamente el reclamo que ahora reiteran los accionantes en relación con la razonabilidad y proporcionalidad de la disposición transitoria VI en cuanto fijó en 18 meses el plazo para cumplir requisitos y jubilarse o pensionarse con el régimen derogado. La base del razonamiento en esa ocasión se apoyó en la diferencia entre el derecho al disfrute efectivo de la jubilación -que solamente se adquiere con el cumplimiento de los requisitos establecidos- y el derecho de pertenencia que tienen los participantes en el régimen que no han cumplido requisitos y que constituye solamente una expectativa respecto de las condiciones de disfrute establecidas. Por esto, los cambios que se realicen en la estructura del régimen pueden aplicarse a todos los que solo ostentan un derecho de pertenencia, siempre que tal decisión se justifique frente a la finalidad y objetivos del régimen y de las modificaciones planteadas, es decir, que se presente como razonable y proporcionada. Sobre este último aspecto se estima apropiado reforzar los argumentos dados por esta Sala en su momento, pues los accionantes insisten en atacar ese plazo de transición por entender que 18 meses es un lapso irrazonable, arbitrario e injusto con una cantidad de personas que por días o semanas quedaron por fuera de la posibilidad de jubilarse a pesar de tener una gran cantidad de años servidos o bien, la edad para el retiro.

En este contexto, la mayoría de la Sala, inicia acentuando el hecho de que la fijación del plazo de 18 meses como plazo de transición, encuentra su fundamento en la jurisprudencia específica de este Tribunal para el tema de los cambios en los regímenes previsionales, tal y como se ha sostenido -entre varias- en la sentencia número 1993-5476 de las 18:03 horas del 27 de octubre de 1993 que conoció el reclamo de una persona que alegaba derechos adquiridos para jubilarse con las reglas de un régimen derogado. En su decisión se explicó sobre el tema concreto:

“II. (…) Dentro de este orden de ideas, es importante indicar que las condiciones específicas del régimen, entre las que se cuentan los requisitos de edad y tiempo laborado, si pueden variar en el futuro y podrán afectar a los beneficiarios que les falten más de 18 meses para cumplir con los requisitos de la normativa que se modifica, pero su derecho a pertenecer al régimen y a jubilarse en las mismas condiciones generales del régimen, no puede ser modificado por haberse consolidado como derecho adquirido. El plazo de los 18 meses, durante el cual la modificación de las condiciones específicas del régimen no puede afectar al administrado, que proyectaba cumplir con los requisitos para pensionarse durante ese plazo, ha sido reiterado por la Sala en varios de sus pronunciamientos, con el objeto de proteger al beneficiario de un determinado régimen de pensión, de cambios repentinos en los requisitos específicos necesarios para obtener el reconocimiento concreto del beneficio jubilatorio; cambios que pueden agravar las condiciones para obtener la pensión, cuando le faltaban al interesado pocos meses para adquirir el derecho concreto al beneficio, con base en la norma modificada.” (el destacado no es del original) De tal manera, al disponer la aplicación del régimen anterior a quienes cumplieran los requisitos en un plazo de 18 meses, el legislador se ha guiado por la posición de este Tribunal en este tema específico del lapso adecuado para equilibrar la necesidad de reforma y actualización de regímenes de jubilaciones y pensiones, con el necesario resguardo de cierto grupo de cotizantes en frente “…de cambios repentinos en los requisitos específicos necesarios para obtener el reconocimiento concreto del beneficio jubilatorio; cambios que pueden agravar las condiciones para obtener la pensión, cuando le faltaban al interesado pocos meses para adquirir el derecho concreto al beneficio, con base en la norma modificada” según la propia expresión del Tribunal. Lo anterior cuenta en favor de la validez constitucional de la medida tomada por el legislador, por lo que una declaración de inconstitucionalidad en este caso, requiere de la aportación de elementos de juicio que logren demostrar la ausencia de proporcionalidad y razonabilidad de emplear el plazo de 18 meses fijado por la jurisprudencia constitucional a partir de la vigencia de la reforma, para la extensión del ámbito de cobertura del régimen previsional anterior.

En el caso concreto sin embargo, no logran los accionantes cumplir con el cometido anteriormente descrito y más bien las características de la reforma apuntan a sostener lo actuado por el legislador, pues en primer término, la Sala ha sopesado la magnitud de los cambios ocurridos en lo que se refiere a las condiciones de elegibilidad, para concluir que su variación no solo tiene un sustento técnico en los esquemas actuariales, tal y como se explicó al abordar dicha cuestión, sino que -adicionalmente- los cambios introducidos no representan -en términos generales- un cambio extremadamente brusco y amplio respecto a lo que se exigía anteriormente. Tómese como ejemplo el caso de una jubilación ordinaria de un cotizante que solo ha laborado en el Poder Judicial, donde se aprecia que para jubilarse ordinariamente con el nuevo régimen, el servidor que ingresó con una edad entre los 18 y los 30 años, deberá laborar 3 años más que con el sistema anterior, mientras que para una edad de ingreso por encima de 30 años, la obligada permanencia como trabajador activo se eleva 5 años respecto del sistema jubilatorio anterior. Parecida situación se aprecia para los casos generales de retiro anticipado, cuya comparación permite concluir que, en la gran mayoría de los casos, la obligación de permanencia como trabajador activo se eleva en 5 años respecto del sistema jubilatorio anterior; solo encuentra la Sala una excepción en el caso del retiro anticipado por años de servicio, en razón de que la normativa anterior no contenía una edad mínima para el retiro, mientras que ahora se exige una edad mínima de 60 años para mujeres y 62 años para hombres, caso en el cual, sin bien los cambios pueden sobrepasar los 7 años no es menos cierto que los límites mínimos (60 y 62 años para mujeres y varones respectivamente) no significan en sí mismo una exigencia excesiva en términos de dignidad humana y esfuerzo. En fin, de todos los datos anteriores el Tribunal entiende que el cambio operado en los requisitos de elegibilidad, no resultan desproporcionados como se plantea por parte de los accionantes y por ende no hacían constitucionalmente necesario un régimen de transición diferente del que fue elegido por el legislador.

Agréguese a lo anterior que contrario a lo sostenido en algunos de los escritos de impugnación, los estudios técnicos sí contemplaron la necesidad de un sistema de transición breve, en aras de la sostenibilidad de la reforma discutida. Al respecto, en las cuatro opciones desarrolladas por la autoridad técnica, y en particular en los escenarios IICE 3 e IICE 4, (de los cuales se tomaron las guías para el texto final de la reforma) se especifica que los cálculos de sostenibilidad incluyen el supuesto de que las modificaciones se aplicarán de forma general a todos los cotizantes, excluyendo únicamente a quienes tuvieran más de 28 años de servicio a la fecha de entrada en vigor del cambio. Esto puede comprobarse con las exposiciones y documentos aportados al expediente legislativo y visibles en los folios 2218 y 2230, de modo que la decisión legislativa final de reconocerle únicamente a los cotizantes con 28 años y medio de servicio la posibilidad de jubilarse bajo el régimen anterior, sí formó parte de los requerimientos técnicos necesarios que se tomaron en cuenta para diseñar las modificaciones que darían sustento financiero al régimen de Jubilaciones y Pensiones del Poder Judicial.

Asimismo, el plazo de 18 meses estuvo ampliamente apoyado por el criterio técnico, no sólo por razones de seguridad jurídica de acuerdo a la jurisprudencia constitucional, sino también por razones de solvencia actuarial. Así, en su comparecencia el Superintendente de Pensiones, Dr. Alvaro Ramos (ver folio 1691 y ss del expediente legislativo), se refirió a la necesidad de hacer una transición de 18 meses en respeto a la jurisprudencia constitucional (ver folio1711). En el mismo sentido, se manifestó la Procuraduría General de la República (folio 2115) y la Universidad de Costa Rica (folios 2264, 2265 y 2942 y ss), al señalar:

“Los últimos marcos que se recomiendan aquí, es el 3 y 4, contemplan exclusivamente lo que usted ha señalado de 18“Los últimos marcos que se recomiendan aquí, es el 3 y 4, contemplan exclusivamente lo que usted ha señalado de 18 meses” (Dr. Max Soto Jiménez) Básicamente los marcos específicamente del IICE, se pasó a tratar de modelar lo más cercano posible a dieciocho meses. En realidad, para serles sincero, a nivel de modelamiento va a ser dos años. O sea, los que tienen 28 años de antigüedad para arriba, el modelo matemático asumió que a ellos se les iba a respetar un transitorio, es decir, no se midió en forma completamente precisa pero eso es por el mismo modelamiento de las probabilidades de vida, se tienen por algo, no para cada medio año y hay razonamientos.

Si uno es teórico, puede dedicarse medio año a eso, pero digamos para contestarle se estimuló lo más cercano posible y la simulación asumió que todos los que tengan más de veintiocho de antigüedad, a ellos sí se les iba a respetar el derecho de mantenerse su pensión con el régimen vigente.

Es lo que usted ve ahí cuando dice “ participación con años de servicio, mayor o igual a veintiocho”. A nivel de paasarlo a reglamento, lo que recomendaría -y recomendamos nosotros-es votarlo a dieciocho meses, lo que la Sala Constitucional dictó.” (Dr. Ronald Cartín Carranza) Diputada Pisk: Nada más para estar clara. A pesar de esa ventana a los que tienen más de veintiocho años, ustedes recomiendan que esto entre en vigencia para todos. Independientemente de los años laborados, entra en vigencia a los dieciocho meses. ¿Es así? Perfecto Dr. Max Soto Jiménez: Los que se pensionan dentro de los dieciocho meses siguientes, mantengan el derecho de la ley vigente:” (…)

“lógicamente, un transitorio superior a los 18 meses afecta negativamente la solvencia actuarial del fondo” (folio 2945) En otro aspecto relacionado con este tema, algunos accionantes han señalado una infracción al Convenio 157 de la Organización Internacional del Trabajo. Sobre ello debe indicarse primero que dicho instrumento no aparece ratificado por nuestro país, por lo que su valor como parámetro para esta Sala, va a depender de que en su contenido se hayan establecido lineamientos claros y específicos -validados por un buen número de Estado- sobre el tema concreto que aquí se valora a saber, guías para proteger los derechos “en proceso de adquisición”. Sin embargo, en el texto del convenio no se incluye ninguna disposición que permita a la Sala entender que el Estado costarricense ha actuado a contrapelo de la tendencia internacional en la protección de derechos humanos, dado que el mencionado instrumento se limita a regular condiciones para que los Estados puedan dar reconocimiento y protección a trabajadores que por diferentes razones han acumulado derechos al amparo de diversas legislaciones estatales. Lo anterior no resulta aplicable al caso concreto por lo que este reclamo debe descartarse.

Finalmente, algunos de los accionantes han mencionado dentro de este reclamo concreto, la existencia de una lesión a la Convención Americana Sobre Derechos Humanos, señalando que ya la Corte Interamericana de Derechos Humanos, como intérprete de dicho instrumento, fijó las condiciones mínimas exigidas a los Estados para el respeto del derecho a la seguridad social en el ámbito del sistema americano de Derechos Humanos. Refieren los interesados que en el caso “Muelle Flores contra Perú” se dejaron establecidas unas pautas que se ven contradichas con la emisión de la Ley 9544 en general y en particular con la disposición transitoria VI con la que se afectan derechos convencionales de las personas con menos de 28 años y seis meses de servicio a la fecha de entrada en vigencia de la reforma. Sobre el tema, la revisión de texto de la decisión citada permite a la Sala concluir que dicha sentencia contiene elementos relevantes para la interpretación del derecho fundamental a la seguridad social, pero que no resultan relevantes ni pertinentes para la solución de este reclamo ni de este proceso en general. En la sentencia mencionada, la Corte Interamericana de Derechos Humanos resolvió el caso de una persona ya jubilada, a quien se le dejó de pagar la suma periódica correspondiente que había venido percibiendo, debido a la privatización de la empresa pública que cubría dicho pago. El caso resultó más grave aún, por cuanto el interesado obtuvo por parte de la justicia peruana, al menos dos sentencias firmes en su favor y sin embargo, al momento de plantear su queja ante el órgano de justicia internacional, no había logrado que se hiciera efectiva la reanudación del pago efectivo de su jubilación. La Corte Interamericana de Derechos Humanos, expuso la esencia fáctica del caso así:

“191. (…(L)a Corte nota que el presente caso no versa sobre las obligaciones de progresividad derivadas del artículo 26 de la Convención, sino que se refiere a la falta de concretización material del derecho a la pensión, como parte integrante del derecho a la seguridad social, del señor Muelle Flores, debido a la falta de cumplimiento y ejecución de sentencias dictadas a su favor a nivel interno en el marco de la privatización de la empresa estatal, efectuado luego de su jubilación. El señor Muelle Flores adquirió su derecho a la pensión bajo un régimen de contribuciones administrado por el Estado, es decir que adquirió el derecho a recibir una pensión luego de haber realizado aportes durante varios años. La legalidad de su incorporación a dicho régimen fue confirmado a nivel interno (supra párr. 74)” Y seguidamente, emite un valioso resumen de su esfuerzo de revisión e interpretación de las distintas fuentes que estimó pertinentes a su tarea de delimitación del derecho a la seguridad social en el caso concreto:

“192. En este sentido, con base en los criterios y elementos constitutivos del derecho a la seguridad social, y tomando en cuenta los hechos y particularidades del presente caso, las obligaciones del Estado en relación con el derecho a la pensión son las siguientes: a) el derecho a acceder a una pensión luego de adquirida la edad legal para ello y los requisitos establecidos en la normativa nacional, para lo cual deberá existir un sistema de seguridad social que funcione y garantice las prestaciones. Este sistema deberá ser administrado o supervisado y fiscalizado por el Estado (en caso de que sea administrado por privados); b) garantizar que las prestaciones sean suficientes en importe y duración, que permitan al jubilado gozar de condiciones de vida adecuadas y de accesos suficiente a la atención de salud, sin discriminación; c) debe haber accesibilidad para obtener una pensión, es decir que se deberán brindar condiciones razonables, proporcionadas y transparentes para acceder a ella. Asimismo, los costos de las cotizaciones deben ser asequibles y los beneficiarios deben recibir información sobre el derecho de manera clara y transparente, especialmente si se tomara alguna medida que pueda afectar el derecho, como por ejemplo la privatización de una empresa; d) las prestaciones por pensión de jubilación deben ser garantizadas de manera oportuna y sin demoras, tomando en consideración la importancia de este criterio en personas mayores, y e) se deberá disponer de mecanismos efectivos de reclamo frente a una violación del derecho a la seguridad social, con el fin de garantizar el acceso a la justicia y la tutela judicial efectiva, lo cual abarca también la concretización material del derecho a través de la ejecución efectiva de decisiones favorables dictadas a nivel interno.” (el destacado en negrita no está en el original) Como puede observarse, ninguno de los puntos citados por el tribunal internacional ha sido desatendido por parte del legislador costarricense en su esfuerzo de generar medidas de orden general para la modificación y ajuste del régimen de jubilaciones y pensiones del Poder Judicial; al contrario, se respeta claramente la situación de las personas que ya habían adquirido el derecho al disfrute de su jubilación o pensión por haber cumplido con los requisitos fijados y por otra se asegura la oportuna financiación de una jubilación por vejez a aquellos a los quienes aún les falta cumplir con las condiciones legalmente fijadas.

En conclusión, la Sala entiende de lo expuesto que no existen elementos de juicio que permitan afirmar que el plazo establecido en el transitorio VI de la Ley 9544, es irrazonable o desproporcionado respecto de la finalidad que se pretende con la disposición, y más bien, la decisión legislativa resulta justificada frente a los cambios realizados. De igual forma, no hay infracción al derecho convencional que declarar y por ende la acción debe declararse sin lugar en este aspecto.

LXX.- Redacta la Magistrada Hernández López. Sobre la solicitud de declaratoria de inconstitucionalidad por conexidad de la Ley número 9796 de 5 de diciembre de 2019.- Un grupo de los accionantes dentro de este proceso solicita la declaratoria de inconstitucionalidad por conexidad de la la Ley número 9796 de 5 de diciembre de 2019 pues estima que lesiona gravemente sus derechos constitucionales. Explica que después de la aprobación de la Ley número 9544 y de la presentación de estos procesos de inconstitucionalidad, se publicó el 20 de diciembre del 2019, en el Diario Oficial la Gaceta, la Ley número 9796 que fue tramitada bajo el expediente legislativo número 21.035 y cuya fecha de entrada en vigencia fue el 20 de junio de 2020. En esa ley se rediseña la contribución especial y solidaria contenidas en las disposiciones de los diversos regímenes especiales de pensiones y en particular se modifica el artículo 236 bis del régimen de Jubilaciones y Pensiones del Poder Judicial, según texto aprobado en la ley número 9544 impugnada en este proceso. Señala una evidente conexidad entre esa Ley número 9796 conocida como la “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, y lo dispuesto por el discutido artículo 236 bis de la Ley N°8 reformado e introducido por la Ley N°9544, por cuanto son normas que regulan la misma situación fáctica, es decir, obligar a los pensionados y jubilados del Poder Judicial a pagar una mayor contribución especial solidaria, al haberse disminuido el monto exonerado. Añade que la ley 9796 aumenta la recaudación al rediseñar los topes de pensión máxima y la pensión exenta, es decir, que la condición de los pensionados y jubilados del Poder Judicial, cuyos montos de pensión superen el monto exento, se hace más gravosa, pues deberán contribuir con una mayor parte de sus pensiones mensuales y relata que esta nueva ley modificó los montos exentos de la contribución especial, solidaria y redistributiva que anteriormente se había fijado por el artículo 236 bis de la Ley 9544, en 10 salarios base del puesto más bajo pagado en el Poder Judicial y ahora se limita a 6 salarios base de modo que para el caso de los jubilados y pensionados del Fondo de Pensiones y Jubilaciones del Poder Judicial, la base exenta se disminuye en un 40% y el monto de la exoneración baja de ¢4.258.000,00 a ¢2.554.800,00. Con lo anterior, se concreta una evidente lesión constitucional por conexidad respecto de lo discutido dentro de esta acción, y se afectan más aun los derechos de los jubilados ya de por sí disminuidos inconstitucionalmente por el artículo 236 bis de la Ley 9544.

En criterio del Tribunal la gestión descrita debe denegarse, con fundamento en las siguientes razones: la competencia otorgada a la Sala para anular normas por conexidad está recogida en el artículo 89 de la Ley de la Jurisdicción Constitucional que señala:

“Artículo 89.- La sentencia que declare la inconstitucionalidad de una norma de ley o disposición general, declarará también la de los demás preceptos de ella, o de cualquier otra ley o disposición cuya anulación resulte evidentemente necesaria por conexión o consecuencia, así como la de los actos de aplicación cuestionados.” Del texto citado se colige que el presupuesto fundamental para la aplicación de esta facultad dentro de una acción de inconstitucionalidad es la necesidad de asegurar la relevancia de la sentencia que acoge acoja y declara una inconstitucionalidad de una norma de ley o disposición general, permitiendo a la Sala abarcar otros preceptos jurídicos que no fueron impugnados, pero cuya permanencia dentro del ordenamiento y evidente conexidad con las normas discutidas, amenaza con perpetuar la lesión constitucional que se pretende remediar con el proceso incoado.

Pero lo anterior no es lo que acontece en este caso en donde la impugnación planteada contra el artículo 236 bis de la Ley 9544 -y del cual la Ley 9796 es una reforma- fue declarada sin lugar por entenderse que el diseño original de esa norma, conforme al texto aprobado con la Ley 9544, no genera lesiones constitucionales que la Sala deba declarar. Por lo anterior, se incumple el presupuesto del artículo 89 citado y la solicitud de inconstitucionalidad por conexidad debe declararse sin lugar.

Adicionalmente, resulta procesalmente improcedente que este Tribunal entre a realizar dentro de este proceso, una valoración individualizada y separada de constitucionalidad de la Ley número 9796 y en concreto de los artículos 1, 2, 3, 4 y 7 que se refieren a la contribución especial solidaria fijada para los jubilados y pensionados del Poder Judicial, tanto porque -según se explicó- el reclamo contra el artículo 236 bis ha sido declarado sin lugar, como porque la recién citada Ley introduce un cambio importante y sustancial en el diseño del mecanismo de la contribución especial, solidaria y redistributiva, frente a los presupuestos que sustentaron en su momento la emisión de la Ley número 9544. Respecto de tales cambios propiciados por la Ley 9796 no ha existido un debate apropiado en este proceso por lo que, no debe la Sala emitir un criterio sobre la cuestión, tomando en cuenta que ya en esta sede ya se tramitan varias acciones de inconstitucionalidad específicamente dirigidas contra los diferentes preceptos de la Ley número 9796, dentro de las cuales podrá discutirse y valorarse por las partes con amplitud los distintos argumentos sobre el tema. En conclusión, por las razones expuestas, la solicitud de declaratoRria de inconstitucionalidad por conexidad de la Ley número 9796, debe rechazarse, remitiendo a las partes interesadas a gestionar su inconformidad a través de los mecanismos establecidos en la ley en el expediente respectivo.

LXXI. Redacta el Magistrado Castillo Víquez. Sobre la omisión del legislador de incluir la perspectiva de género en el artículo 224 de la Ley 9544.- Se cuestiona en las acciones acumuladas que hay una discriminación por parte de legislador a no considerar el género con la legislación impugnada. La Procuraduría General de la República al contestar la audiencia otorgada en esta acción de inconstitucionalidad, afirmó que este tipo de diferenciaciones solo se justifican cuando los estudios técnicos sugieran la necesidad de un tratamiento diferenciado y que la Sala lo resolvió así en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, señalando además que, en todo caso, el artículo 224 bis de la Ley 9544, relacionado con el tema de la pensión anticipada, sí hace distinción entre hombres y mujeres con respecto a la edad de retiro; distinción que resulta muy similar a la prevista en el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, pues se permite el retiro de las mujeres a los 60 años y de los hombres a los 62 años. Por su parte, la Vicepresidenta de la Corte Suprema de Justicia en su informe a la Sala manifestó que en relación con el artículo 224 de la Ley 9544, en el informe rendido ante la segunda consulta a la Corte Suprema de Justicia, el texto de la norma vigente no hizo diferencia por género como sí lo hacen otros regímenes de pensiones; omisión ampliamente analizada en la discusión de la tercera consulta y en la que se hizo un especial llamado a observar lo dispuesto en la Convención sobre la Eliminación de todas las Formas de Discriminación contra la Mujer, que en su numeral 11, inciso 1) acápite e) señala que los Estados parte adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo a fin de asegurar, el derecho a la seguridad social, en particular en casos de jubilación por invalidez o vejez y a lo establecido en el artículo 71 de la Constitución Política en cuanto a la protección especial a las mujeres en el trabajo. La Presidenta de la Asamblea Legislativa señaló que en vista de que este alegato respecto a que el numeral 224 de la Ley 9544 no atiende a criterios de género, es un aspecto que ya fuera analizado por la Sala, el reclamo debía ser rechazado. En relación con el tema, ciertamente este Tribunal al analizar la Consulta Legislativa Facultativa en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, se pronunció manifestando:

“(…)

De la lectura de las normas antes citadas, se desprende que en éstas se establecen los requerimientos que todo servidor debe cumplir para poder obtener una pensión a cargo del Régimen de Pensiones y Jubilaciones del Poder Judicial. Ahora bien, a criterio de esta Sala el hecho de que no se haga una diferenciación por razón de género en los términos que mencionan los(as) consultantes, no conlleva un vicio de inconstitucionalidad, pues debe tomarse en cuenta que los requisitos para obtener un beneficio jubilatorio obedecen a criterios objetivos que se fijan a partir de estudios técnicos, que establecen requisitos como la edad y el número de cuotas que una persona debe cumplir para garantizar la sostenibilidad de un régimen de pensiones, con independencia del género del cotizante. Hay que tener presente que los(as) consultantes no aportan estudios técnicos para sostener la inconstitucionalidad alegada, de forma tal que se justifique de forma objetiva hacer la diferenciación que se echa de menos, lo cual no significa que, en un futuro, este Tribunal, por medio del control a posteriori de constitucionalidad, no analice el agravio planteado con base en estudios técnicos pertinentes que se lleguen a aportar. Por otra parte, los estudios que se mencionan en la consulta hacen referencia a otros supuestos que no resultan de recibo, pues tienen que ver, entre otras cosas, con jornadas, ingresos, etc. Finalmente, no se puede dejar de lado que, contrario a lo que se alega en la consulta, el IICE, en el oficio n.° 186-2017 del 18 de agosto de 2017, establece de forma clara y precisa lo siguiente:

“c. Edad requerida para la jubilación y diferencias por género.

Los lineamientos establecidos para edad de jubilación en el Dictamen de Mayoría son los mismos que se utilizaron en los marcos IICE_3 e IICE_4: 65 años para la jubilación ordinaria. Para la jubilación por servicio se establece una diferencia de género análoga a la establecida en el régimen IVM de la CCSS: 62 años para los hombres, y 60 años para mujeres. El equipo del IICE no considera necesario establecer distinciones adicionales por concepto de género”.

En virtud de lo anterior, el Tribunal considera que no se presenta el vicio alegado”.

En otro orden de ideas, hay que tener presente de que no hay un derecho fundamental absoluta, salvo el caso de no ser sometido a tratos crueles, inhumanos y degradantes, de ahí que resulta válido desde la óptica constitucional establecer tratos diferenciados -o iguales- cuando hay una justificación objetiva y razonable, con esto alcanzar un fin constitucional legítimo. Hay que recordar, que 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 prohibe 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 sí 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 Nº 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).

Hay razones justificadas y objetivas para dar un trato igualitario entre hombres y mujeres en lo referente a la edad de retiro. En primer lugar, se busca con tal mandato legal un fin constitucional legítimo, como lo son el disfrute efectivo de un derecho fundamental a la jubilación y a la pensión y el garantizar a un sector de la población el acceso, en términos más amplios, a la seguridad social -artículo 73 de la Carta Fundamental-. En segundo término, esa equiparación no es un acto arbitrario, carente de razonabilidad y de proporcionalidad; todo lo contrario, está basada en estudios actuariales -responde al escenario dos- y se busca con ello cerrar portillos. En tercer lugar, con dicha equiparación se busca corregir un déficit actuarial que tiene un régimen de jubilaciones y pensiones especial, pues de lo contrario, de no adoptarse esta medida y otras que se establecen en la normativa legal impugnada, la consecuencia lógica y necesaria sería la no sostenibilidad en el mediano plazo del citado régimen, con el consecuente perjuicio para jubilados, pensionados y trabajadores activos. Hay que tener presente que al 20 de mayo del año en curso, los trabajadores activos en razón del género se distribuyen en 6577 mujeres y 6919 hombres, es decir, las primeras representan casi el 50% de la población judicial, por lo que un trato diferenciado tendría necesariamente un impacto negativo sobre la sostenibilidad del régimen, el cual necesariamente debe ser compensado con base en estudios actuariales. No menos importante para la mayoría del Tribunal es el argumento de que la tendencia mundial en los regímenes de jubilaciones y pensiones es hacia la equiparación de la edad entre hombre y mujeres. La razón de esa tendencia encuentra, entre otras razones, justificación de que hoy en día es que la mujer se ha incorporado a la fuerza laboral de manera muy significativa y que tiene una expectativa de vida mayor a la de los hombres. Por citar solo algunos ejemplos, vemos la tendencia en Europa, cuya economía de sus países son muy superior a la nuestra, es lograr una equiparación para el año 2040 en la edad de retiro entre hombre y mujeres. Frente al fenómeno de envejecimiento de la población y el costo de los regímenes de jubilaciones y pensiones, la tendencia ha sido no solo a aumentar la edad de retiro, sino la equiparación entre mujeres y hombres. Tal y como lo afirma un documento de la CEPAL, basado en un la European Commission, The 2015 pension adequacy report: current and future income adequacy in old age in the UE, Vol I, Tabla 4.5, pág 185, en la actualidad en Europa las edades jubilatorias son iguales para hombres y mujeres en un gran número de países. En los casos donde persiste la diferencia, se está en proceso de equiparación. Se afirma que, en el 2020, en la gran mayoría de países la equiparación de la edad de retiro es una realidad y, para el 2040, prácticamente en todos ellos. Si la Unión Europea, con todo su poder económico, no tiene los recursos suficientes para sostener este tipo de diferenciación, mucho menos lo puede hacer un país cuya economía en más débil. Nótese que esa es la tendencia que sigue nuestro régimen de jubilaciones y pensiones de carácter general -el IVM-, en el que se ha equiparado la edad de retiro entre hombre y mujeres a 65 años de edad en un contexto de envejecimiento de la población y un aumento de la expectativas de vida, elementos que para la mayoría de este Tribunal resulta a tomar muy en cuenta y, lógicamente, respaldados por estudios actuariales, tal y como lo ha hecho el legislador al promulgar la norma que aquí se invoca de contraria al Derecho de la Constitución. Finalmente, los accionantes, tal y como se hizo ver en la opinión consultiva, no aportan estudios técnicos que justifiquen que el trato diferenciado en la edad de retiro entre hombres y mujeres está justificado. Hay que reiterar una vez más que cuando se alega una violación al principio de igual – en este caso porque la mujer no está en la misma posición del hombre-, quien invoca tal violación le corresponde la carga de la prueba, y en un caso de tal envergadura, a través de estudios actuariales que permitan conciliar dos objetivo: la procedencia de trato diferenciado sin afectar la sostenibilidad financiera del régimen de pensiones. Tal argumentación está ausente en las acciones de inconstitucionalidad, de ahí que por razones apuntadas lo proceder es declararlas sin lugar.

LXXII. Redacta la Magistrada Hernández López. Sobre los cuestionamientos que se hacen a los criterios técnicos actuariales aportados en los Productos IICE_1 a 6. En relación con el Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial que efectuó el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, algunos accionantes cuestionan aspectos específicos de metodología y en cuanto a las muestras utilizadas, las valoraciones que se hizo de los datos, los parámetros utilizados, entre otros, para argumentar que no se trata de un estudio apto para justificar las reformas que fueron introducidas en la Ley 9544; sin embargo, como bien se desprende de autos, tales argumentaciones no fueron acompañadas por prueba técnica que justificara las afirmaciones ni mucho menos ofrecieron algún otro estudio equivalente e integral que pudiere desvirtuar las conclusiones a las que llegó el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica con sustento en las cuales el legislador promulgó la Ley 9544 aquí impugnada, por lo que se declara sin lugar el recurso en este extremo.

LXXIII. Redacta la Magistrada Hernández López. Sobre el derecho a la pensión por sobrevivencia. - De conformidad con la Organización Internacional del Trabajo (OIT), la Protección Social es un derecho humano, esencial para alcanzar un desarrollo sostenible, conformado por conjuntos de garantías básicas de seguridad social, definidos a nivel nacional, que aseguran una protección destinada a prevenir o aliviar la pobreza, la vulnerabilidad y la exclusión social. A su vez, la seguridad social consiste en los sistemas previsionales y económicos que cubren los riesgos a que se encuentran sometidas ciertas personas, principalmente los trabajadores, a fin de reparar o, al menos, mitigar los daños, perjuicios y desgracias de que puedan ser víctimas involuntarias o sin mala fe (ver sentencia número 2007-017971 de las 14 horas y 51 minutos del 12 de diciembre del 2007). De interés para este apartado, interesa decir que, para la OIT, la seguridad social es “la protección que la sociedad proporciona a sus miembros, mediante una serie de medidas públicas, contra las privaciones económicas y sociales que de otra manera derivarían de la desaparición o de una fuerte reducción de sus ingresos como consecuencia de enfermedad, maternidad, accidente del trabajo o enfermedad profesional, desempleo, invalidez, vejez y muerte; también la protección en forma de asistencia médica y de ayuda a las familias con hijos" (ver Introducción a la Seguridad Social. O.I.T. Ginebra, 1987, p. 3). La seguridad social es un instrumento esencial para crear cohesión social, contribuye a garantizar la paz social y la integración social, forma parte indispensable de la política social de los gobiernos y es una herramienta importante para evitar y aliviar la pobreza; administrada correctamente aumenta la productividad al proporcionar asistencia médica, seguridad de ingresos y servicios sociales y aunque representa un costo para las empresas, es también una inversión en las personas y, a la vez, un apoyo para éstas (ver Seguridad Social: un nuevo consenso. OIT. Ginebra, 2002, p. 1y 2). Dentro del grupo de prestaciones contenidas por la seguridad social en Costa Rica, se encuentran las “pensiones por sobrevivencia” que son aquéllas que -previo cumplimiento de los requisitos legalmente establecidos- pueden ser otorgadas a los familiares que sobreviven al trabajador o trabajadora activa que fallece, independientemente de que la causa de la muerte sea por enfermedad, accidente laboral u otros. De este modo, los “sobrevivientes” en el contexto de la seguridad social, hacen referencia a la pareja del trabajador o trabajadora y a sus huérfanos, adquiriendo especial relevancia su protección porque, justamente, al perderse por muerte una parte importante del sostén de una familia, se hace indispensable garantizar a sus deudos el continuar contando, al menos, con las condiciones mínimas necesarias para sobrevivir mientras se logran acomodar a la nueva situación y es ahí donde cobran sentido las políticas de protección social en la medida en que contribuyen a prevenir y reducir la pobreza, la desigualdad, promover la inclusión social y el respeto por la dignidad humana; que contribuyen a dotar a las personas de una vida digna y plena en los términos en que lo expone el artículo 2 de la Ley Integral para la Persona Adulta Mayor, Nº 7935 de 25 de octubre de 1999. De conformidad con la doctrina, la rama de prestaciones de sobrevivientes de la seguridad social fue concebida originalmente dentro de una forma de vida familiar tradicional, compuesta por esposo, esposa e hijos, en la cual la mujer casada permanecía en su hogar ocupándose de quehaceres domésticos y de la crianza de los hijos, mientras que, el encargado de dar sustento a la familia, era el marido y padre. Dentro de ese contexto, si el hombre fallecía, su viuda y los huérfanos quedarían privados de su sustento, expuestos a múltiples vicisitudes como la pobreza, carencia de condiciones mínimas de vida, imposibilidad de acceso a la salud y a la educación, entre otros, y por ello se ideó como parte de la seguridad social, las pensiones por sobrevivencia. Posteriormente, con la incorporación de la mujer a la vida laboral y la modificación del esquema tradicional de familia, aquellas prestaciones de sobrevivencia se han convertido en “prestaciones familiares o de personas a cargo”, las cuales, a pesar de que siguen estando destinadas principalmente a la pareja del trabajador o trabajadora fallecidos y a los huérfanos, no necesariamente van encaminadas a proveerles de sustento básico, sino que llegan a colaborar con el aporte económico que el asegurado (a) fallecido (a) generaba en su núcleo familiar, a efecto de que la familia pueda continuar manteniendo un cierto nivel de vida de acuerdo al que usualmente disfrutaba; aporte que es de gran relevancia sobre todo cuando se toma en cuenta que pudieren existir niños pequeños o personas con discapacidad, cuyas necesidades económicas suelen ser de gran magnitud. En Costa Rica, la legislación que regula esta materia se ha sustentado en los principios sentados en los Convenios 102 y 128 así como en la Recomendación 131, ambos de la Organización Internacional del Trabajo, sin que el Poder Judicial haya sido una excepción pues su Ley Orgánica ha incluido ese tipo de protección. En ese sentido y antes de aprobarse la reforma por Ley 9544 aquí impugnada, en caso de fallecimiento de un servidor activo del Poder Judicial, el otrora artículo 230 de la Ley Orgánica del Poder Judicial No. 7333, disponía:

“Artículo 230. Los funcionarios y empleados que hubieran servido menos de diez años, no tendrán derecho a jubilación ni sus parientes a pensión, salvo el caso previsto en el artículo 228. Sin embargo, si a causa del ejercicio de sus funciones se produjere la muerte del servidor—cualquiera que hubiera sido el tiempo servido por éste— además de las indemnizaciones que legalmente correspondan, sus beneficiarios tendrán derecho a una pensión temporal y proporcional, dentro de las condiciones que esta Ley prevé para esos casos”.

Como bien se desprende de la lectura de la norma, la Ley 7333 regulaba la posibilidad de que, en caso de que un trabajador activo del Poder Judicial falleciera, pero tuviera 10 o más años de servicio para la institución, sus parientes tendrían derecho a una pensión independientemente de las causas por las cuales se diera el deceso, estableciendo además la posibilidad de que, si la muerte se produjere como consecuencia del ejercicio de las funciones y el trabajador contaba con menos de 10 años de servicio, los parientes beneficiarios tendrían derecho a una pensión temporal y proporcional, según lo dispuesto por la Ley para esos casos. Es evidente que la norma establecía una amplia protección social a los deudos del fallecido en consonancia con los principios más básicos sentados en la materia por la Organización Internacional del Trabajo, en términos de constituirse en una medida a favor de aquéllos contra la incertidumbre y los riesgos de la vida que pueden derivar en afectaciones al bienestar presente y futuro pues no hay duda de que las condiciones socioeconómicas de una persona, potencian las desigualdades, la vulnerabilidad y la pobreza. Obsérvese que, según el anterior artículo 224 -de la Ley 7333-, para obtener la jubilación en condiciones regulares, un trabajador judicial debía contar con 30 años de servicio y por ello la norma transcrita supra disponía que los funcionarios y empleados que hubieran servido menos de diez años, no tendrán derecho a jubilación; sin embargo, el legislador con adecuada previsión social, y adelantándose a las situaciones excepcionales de la vida que pueden ocurrir, comprendió la necesidad de proteger a los parientes y dispuso que, superados 10 años de servicio, en caso de fallecimiento del trabajador o trabajadora activos, sus deudos sí tendrían derecho a una pensión proporcional por sobrevivencia. Es indiscutible que esta previsión es de gran relevancia en un Estado Democrático y Social de Derecho, además de que la muerte es parte innegable e integral del ciclo de la vida, por lo que se puede dar en cualquier momento; sin embargo, cobra especial relevancia en el caso del Poder Judicial pues muchos de sus empleados, en razón de sus funciones, se encuentran sometidos a serios riesgos que pueden acarrearla y, por esta razón, aquél legislador también dispuso en esa norma que si la muerte del servidor se produjere a causa del ejercicio de sus funciones, en ese supuesto no importaría el tiempo de servicio que tuviere el trabajador, pues aun cuando fuere menos de 10 años, sus beneficiarios tenían derecho a una pensión temporal y proporcional, dentro de las condiciones que disponía la Ley para esos casos. Es más que evidente que el legislador no sólo contaba con una amplia perspectiva social y garantista de derechos fundamentales, sino que también comprendía la trascendencia de la protección social como un mecanismo de blindar a las personas contra eventuales riesgos en el ciclo de la vida, como un aspecto determinante en la sociedad para impulsar la productividad, el trabajo decente, la transformación estructural de las economías nacionales a fin de reducir la pobreza, la exclusión social, la desigualdad, fortalecer la cohesión social y la estabilidad política. No obstante lo anterior, con la reforma introducida a la Ley Orgánica del Poder Judicial a través de la Ley 9544 aquí impugnada, la situación varía radicalmente, tal y como se argumenta en la acción de inconstitucionalidad No. 18-009275-0007-CO, en la cual los accionantes aducen que se “hace nugatorio ese derecho para futuros beneficiarios como quienes adquieren derecho a pensión por sobrevivencia (cónyuges, compañeros, padres dependientes) o por orfandad, personas inválidas o incapaces que dependan de la persona fallecida, pues estas, si el servidor no cumple 20 años de servicio al momento del fallecimiento, sin importar si había servido 30, 35 o 40 años en otra institución del sector público, quedarían desamparadas, descubiertas en dicha contingencia”, estimando que “lo anterior resulta inconcebible dentro del Estado Social de Derecho” y citan como ejemplo el caso de “una persona que ingrese a laborar al Poder Judicial de 50 años, ésta deberá esperar hasta los 70 años para poder jubilarse y peor aún si falleciera antes de cumplir esos años sus sobrevivientes no recibirían pensión alguna”, indicando además que lo más grave de este cambio radical de condiciones para los sobrevivientes es que se ha hecho sin contar con criterios técnicos que lo justifiquen y sin ofrecer mayor análisis por parte del Legislativo. Para comprender el alcance del alegato de los accionantes, debe observarse lo que disponen los numerales 228 y 229 de la Ley 9544 -aquí impugnada- que son los que regulan lo relativo a la pensión por sobrevivencia:

“Artículo 228- Tienen derecho a pensión por sobrevivencia:

• a)El cónyuge sobreviviente del servidor o jubilado fallecido que dependa económicamente del causante, al momento del fallecimiento.
• b)El compañero económicamente dependiente al momento del fallecimiento del jubilado, que haya convivido por lo menos tres años previos al deceso y tuvieran ambos aptitud legal para contraer nupcias, conforme la legislación civil.
• c)El cónyuge divorciado o separado judicialmente o de hecho, excompañero, que disfruta a la fecha del deceso de una pensión alimentaria, declarada por sentencia judicial firme o que demuestre que recibía una ayuda económica por parte del causante.

Tienen derecho a pensión por orfandad:

• 1)Los hijos que, al momento del fallecimiento del causante, dependían económicamente de este, de acuerdo con las siguientes reglas:

1.1) Solteros menores de edad.

1.2) Mayores de dieciocho años, pero menores de veinticinco años, que realicen estudios reconocidos por el Ministerio de Educación Pública (MEP), el Instituto Nacional de Aprendizaje (INA), u otras instituciones a criterio de la Junta Administradora.

1.3) Mayores de edad que, previo al fallecimiento del causante, se encuentren inválidos e incapaces para ejercer labores remuneradas.

En ausencia de los derechohabientes por viudez, unión de hecho u orfandad, tienen derecho a pensión los padres, si al momento de fallecer el causante dependían económicamente de este.

“Artículo 229- El monto de las prestaciones de pensión por sobrevivencia en los casos de viudez, unión de hecho, orfandad o ascendencia será proporcional al monto de pensión que recibía el pensionado al momento de fallecer, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que correspondía al causante. En caso de muerte de un servidor activo, la cuantía de la pensión por viudez, unión de hecho, orfandad o ascendencia será proporcional al monto de pensión que hubiera recibido el fallecido de acuerdo con el cumplimiento de requisitos en el momento de la contingencia, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que le hubiera correspondido al causante.

Las proporciones para los beneficios por viudez, unión de hecho, orfandad y ascendencia serán las que se estipulen en el reglamento del Régimen.

Toda pensión por sobrevivencia caducará por la muerte del beneficiario, a excepción de lo dispuesto en este artículo para la pensión que corresponde a los hijos.

Las asignaciones que caduquen acrecerán proporcionalmente las de los demás beneficiarios que se mantienen vigentes, a solicitud de ellos y siempre y cuando los requieran, previo estudio de trabajo social y aprobación de la Junta Administrativa del Fondo.

(Así reformado por el artículo 1° de la ley N° 9544 del 24 de abril de 2018) De la lectura de ambos numerales se observa que la afirmación de los accionantes cobra sentido cuando se piensa en el caso de un servidor o servidora activo del Poder Judicial que fallece y que constituía un sostén para las personas que le sobreviven pues obsérvese que, bajo la regla establecida en el numeral 229 de cita -actualmente vigente-, en caso de muerte de un servidor activo, la cuantía de la pensión para quienes resulten beneficiarios, “será proporcional al monto de pensión que hubiera recibido el fallecido de acuerdo con el cumplimiento de requisitos en el momento de la contingencia, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que le hubiera correspondido al causante”. Lo anterior significa que, tal y como lo mencionan los accionantes, sólo podrán ser beneficiarios con una pensión por sobrevivencia aquéllos deudos de un servidor que tuviere 20 años o más de servicio en el Poder Judicial, ello por cuanto la norma le exige al fallecido que estuviere en la posibilidad de cumplir con los requisitos establecidos en el artículo 224 anterior, o lo que es lo mismo, que tuviere 20 o más años de servicio en el Poder Judicial; norma que, además, no contempla ninguna posibilidad de beneficio para sus deudos en el caso de que la muerte de la persona trabajadora activa fuera consecuencia del ejercicio de sus funciones en la institución. Aunado a lo anterior, como bien lo afirman los accionantes, la norma se modificó para pasar a esta nueva redacción sin que exista algún sustento técnico que la justifique y, en ese sentido, basta con revisar el expediente legislativo al cual ha tenido acceso este Tribunal para comprobar que no existe ningún fundamento técnico acreditado en el expediente o en las comparecencias de los técnicos, en relación con la pensión por sobrevivencia, que justifique la diferencia que se está dando entre la Ley 7333 anterior y la reforma. La Sala ha podido comprobar que ninguno de los 6 Productos IICE que sirvieron de sustento al legislador para dictar la Ley 9544, contemplan alguna justificación técnica para retrotraer la protección social en esta materia; retroceso que evidentemente resulta contrario a los principios garantes de derechos fundamentales que deben ser tutelados por este Tribunal Constitucional pues a pesar de que en esta materia debe prevalecer la progresividad, en el caso concreto se retrocedió sin fundamento, al cambiar las condiciones para los sobrevivientes de personas trabajadoras con 10 años o más de servicio en el Poder Judicial, a 20 años o más de laborar en la institución. Aunado a lo anterior, para la Sala tal distinción tan gravosa entre el sistema anterior y el actual, hace que la norma reformada no sea razonable, por ende, carente de un contenido de justicia y, en ese sentido, debe recordarse que esta Sala ha señalado en el pasado que si “la distinción que establece una norma produce una situación de injusticia, tal norma no es razonable y, entonces, se quebranta el contenido del principio de igualdad recogido en el artículo 33 constitucional” (sentencia número 2001-03192 de las 10 horas 10 minutos del 25 de abril de 2001). Se estima que lo anterior es así porque, según se puede observar, frente a dos situaciones iguales -muerte de un trabajador o trabajadora activos del Poder Judicial-, la Ley 9544 acá impugnada, le da un tratamiento completamente diferente al que contenía la Ley 7333, ello a pesar de que entre la promulgación de una y otra ley han pasado casi 30 años y lo lógico es pensar que las sociedades vayan avanzando de manera positiva y progresista, no a la inversa. La situación real en la que han sido colocadas las personas que pudieren derivar beneficios en estas circunstancias, es lesiva de derechos fundamentales, abiertamente contraria a lo dispuesto por el artículo 51 constitucional según el cual, la familia, como elemento natural y fundamento de la sociedad, tiene derecho a la protección del Estado, destacando con especial relevancia el caso de la madre, el niño y la niña, las personas adultas mayores y las personas con discapacidad. Lo anterior significa que, aun cuando el Estado tiene la obligación de adoptar las medidas que sean necesarias para garantizar esa protección y dentro de ellas se encuentra, sin lugar a dudas, el reconocimiento de las prestaciones sociales derivadas de los trabajadores y trabajadoras activos en el Poder Judicial que tuvieren hijos o personas dependientes integrantes de aquél núcleo esencial, lo cierto del caso es que, con sustento en el artículo 229 de la Ley 9544, quedan en franco desamparo si aquél servidor (a) activo (a), no tenía 20 años o más de laborar para el Poder Judicial, en clara desmejora con el sistema anterior que tutelaba a los trabajadores con 10 años de servicio, o inclusive menos, si la muerte se derivó del ejercicio de sus funciones en el Poder Judicial, ello a pesar de que el fallecimiento de una persona trabajadora activa, generalmente refiere a situaciones excepcionalísimas, que cuando ocurren es de muy pocas personas y que precisamente por esa razón, el reconocimiento de la pensión a sus sobrevivientes, no implicaría una afectación de grandes dimensiones al Fondo de Jubilaciones y Pensiones del Poder Judicial. Así las cosas, lo que procede es mantener la vigencia de los 10 años que establecía el artículo 230 de la Ley 7333, de tal forma que la derogatoria de esa norma, En consecuencia, deberá entenderse que la pensión por sobrevivencia le corresponde a los deudos de la persona trabajadora activa del Poder Judicial que, al momento de la contingencia, tuviere 10 años o más de laborar en el Poder Judicial y, en el caso de que la muerte se produjere a causa del ejercicio de sus funciones, cualquiera que hubiera sido el tiempo de servicio, los beneficiarios tendrán derecho a una pensión temporal y proporcional de acuerdo a lo que disponga la ley además de las indemnizaciones establecidas por la normativa que regula la materia, ello por cuanto, como ya se indicó, el importe de la pensión pretende sustituir la ayuda que la persona fallecida otorgaba a las personas que de él dependían, de manera que no queden en una situación de indigencia o desamparo.

LXXIV.- Redacta la Magistrada Hernández López. Sobre los alegatos planteados en relación con el Convenio 102 de la OIT. Nuestro país suscribió las partes II y V a X del Convenio 102 de la OIT (Seguridad Social) el 16 de marzo de 1972. Este Convenio, se refiere a varios temas, entre éstos: asistencia médica (parte II), prestaciones monetarias por enfermedad (parte III), prestaciones de desempleo (parte IV), prestaciones de Vejez (Parte V), prestaciones de accidentes de trabajo y enfermedad profesional (parte VI), prestaciones familiares parte VII, prestaciones de maternidad (parte VIII), prestaciones de Invalidez (parte IX), prestaciones de sobrevivientes (parte 10). Ha sido conocido como "Convenio sobre la seguridad social", y es el que estipula las normas mínimas en ese campo, de acatamiento obligatorio para todos aquellos países que lo hayan suscrito y ratificado, como es el caso de Costa Rica, dentro de las diversas posibilidades que ofrece.

En cuanto a los alcances del término “residencia”, tal y como lo señala el Convenio en su artículo 1.1. (b), significa la residencia habitual en el territorio del Miembro, y el término “residente” designa la persona que reside habitualmente en el territorio del Miembro, de tal forma que, como lo rectificó la Sala en la sentencia número 2000-002091 de las 8 horas 30 minutos de 8 de marzo de 2000, sólo por error puede hablarse de residencia como pertenencia a un régimen de pensiones. La parte XII del Convenio establece la obligación de dar igualdad de trato a los residentes con respecto a los nacionales en el artículo 68 que en lo que interesa señala:

“Artículo 68 1. Los residentes no nacionales deberán tener los mismos derechos que los residentes nacionales. Sin embargo, podrán prescribirse disposiciones especiales para los no nacionales y para los nacionales nacidos fuera del territorio del Miembro, en lo que respecta a las prestaciones o partes de prestaciones financiadas exclusivamente o de manera preponderante con fondos públicos, y en lo que respecta a los regímenes transitorios. 2. En los sistemas de seguridad social contributivos cuya protección comprenda a los asalariados, las personas protegidas que sean nacionales de otro Miembro que haya aceptado las obligaciones de la parte correspondiente del Convenio deberán tener, respecto de dicha parte, los mismos derechos que los nacionales del Miembro interesado. Sin embargo, la aplicación de este párrafo podrá estar condicionada a la existencia de un acuerdo bilateral o multilateral que prevea la reciprocidad.” Por su parte, en cuanto a las prestaciones por vejez, los artículos 25, 27, 28 y 29 señalan distintas y excluyentes formas de asegurar prestaciones por vejez: categorías de asalariados (cotización); categorías de población económicamente activa; y residentes cuyos recursos no excedan ciertos límites:

“Artículo 25:

Todo Miembro para el cual esté en vigor esta parte del Convenio deberá garantizar a las personas protegidas la concesión de prestaciones de vejez, de conformidad con los artículos siguientes de esta parte”.

“Artículo 27:

Las personas protegidas deberán comprender:

(a) sea a categorías prescritas de asalariados que en total constituyan, por lo menos, el 50 por ciento de todos los asalariados; (b) sea a categorías prescritas de la población económicamente activa que en total constituyan, por lo menos, el 20 por ciento de todos los residentes; (c) sea a todos los residentes cuyos recursos durante la contingencia no excedan de límites prescritos, de conformidad con las disposiciones del artículo 67; (d) o bien, cuando se haya formulado una declaración, en virtud del artículo 3, a categorías prescritas de asalariados que en total constituyan, por lo menos, el 50 por ciento de todos los asalariados que trabajen en empresas industriales en las que estén empleadas, como mínimo, veinte personas”.

“Artículo 28:

La prestación consistirá en un pago periódico, calculado en la forma siguiente:

(a) cuando la protección comprenda a categorías de asalariados o a categorías de la población económicamente activa, de conformidad con las disposiciones del artículo 65 o con las del artículo 66; (b) cuando la protección comprenda a todos los residentes cuyos recursos durante la contingencia no excedan de límites prescritos, de conformidad con las disposiciones del artículo 67”.

“Artículo 29.

1. La prestación mencionada en el artículo 28 deberá garantizarse, en la contingencia cubierta, por lo menos: (a) a las personas protegidas que hayan cumplido, antes de la contingencia, de conformidad con reglas prescritas, un período de calificación que podrá consistir en treinta años de cotización o de empleo, o en veinte años de residencia; (b) cuando en principio estén protegidas todas las personas económicamente activas, a las personas protegidas que hayan cumplido un período de calificación prescrito de cotización y en nombre de las cuales se hayan pagado, durante el período activo de su vida, cotizaciones cuyo promedio anual alcance una cifra prescrita”.

Como puede observarse, el inciso a) de este numeral 29 contempla dos supuestos correspondientes a dos de los sistemas: sea por cotización, o bien, por residencia, y este concepto claramente tiene una relación con el hecho de residir en un lugar por un tiempo determinado según los propios términos del Convenio. En todo caso, el argumento de la residencia para efectos de este convenio es irrelevante porque por ninguna parte la OIT pretende establecer reglas para supervivencia de derechos de las personas, en los casos de cambio de normativa anterior. Sobre el particular, debe tenerse claro que, en la referida sentencia (2000-002091), la Sala fue enfática en señalar que, si bien el citado Convenio tiene rango superior a la ley de conformidad con lo que determina el artículo 7 constitucional, también lo es que por la misma amplitud con que están redactados los convenios internacionales en aras de su mayor flexibilidad, es cada país, de acuerdo con sus propias condiciones económicas y sociales, el que determina a cuál de los presupuestos de hecho que se contempla en el respectivo convenio se conforma su propia realidad y, por lo tanto, cómo puede o qué medidas internas –normas prescritas en el lenguaje del Convenio 102- debe definir para cumplir o ajustarse a la normativa a la cual se comprometió respetar ante la comunidad internacional. Bajo este esquema, específicamente en lo que al término “residencia” se refiere, debe entenderse que significa la residencia habitual en el territorio del Miembro y el término “residente” designa la persona que reside habitualmente en el territorio del Miembro, siendo en criterio de este Tribunal, ésta y sólo ésta, la interpretación que se le puede dar. Como se mencionó, y en concordancia con la misma sentencia señalada, lo importante acá no es el término “residencia”, sino que lo que interesa es que, en Costa Rica, se reconoce el derecho fundamental que toda persona tiene a la jubilación; derecho del que también se ha insistido por este Tribunal de manera constante en cuanto a que, como cualquier otro derecho, está sujeto a condiciones y limitaciones, unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan, y además resulten razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin (ver sentencia 2000-002091 de las 8 horas 30 minutos de 8 de marzo de 2000). En esta materia, no puede dejarse de lado que Costa Rica se encuentra a la vanguardia en materia de seguridad social pues va más allá de las exigencias del convenio suscrito para establecer un mínimo asociado al derecho a la jubilación o a la pensión y, por ende, esto resulta ser lo verdaderamente importante, no la tesis de algunos accionantes que pretenden restablecer viejos criterios de la Sala que se mantuvieron en las sentencias números 5261-95, 6842-99 y 673-00, dejando de lado lo que sí es importante que es el reconocimiento por parte del ordenamiento jurídico costarricense y la protección que en la práctica tiene, del derecho a la jubilación, con todas las garantías jurídicas que le rodean. Debe tenerse claro que lo que busca el Convenio es asegurar que las personas reciban una prestación por vejez en los términos de los artículos 28 y 65, 66 o 67, según cada uno de los 3 casos señalados en las normas, pero no se exige que deba mantenerse una normativa específica y por eso es que se le ha llamado "convenio sobre la seguridad social", por cuanto su finalidad es estipular las normas mínimas en ese campo que los países que lo han suscrito, se comprometen a promulgar, siendo que, en el caso de Costa Rica, eso se ha respetado y se trabaja para asegurar que este derecho a la jubilación y a la pensión, pueda ser disfrutado por la mayoría de las personas que cumplen con los requisitos para ello. En ese sentido entonces, es claro que los empleados del Poder Judicial no se están quedando sin prestación por vejez, que es lo que exige el Convenio, pues la nueva ley se las mantiene. Lo que varía son condiciones para determinar cuándo la reciben. En consecuencia, con el contenido de la Ley 9544 que se impugna, no se está dando ninguna vulneración a los derechos reconocidos por el Convenio, como se alega por la parte accionante y tampoco es procedente que la Sala varíe la interpretación que se ha dado de aquél en la sentencia número 2000-002091.

También se alega que el artículo 65 de este Convenio, establece que la cuantía de la prestación de jubilación debe ser sobre ganancias brutas y no sobre el monto de jubilación. No obstante, según se desprende de autos, lo cierto del caso es que no se desarrolla el argumento, es decir, no se fundamenta y basta esa razón para rechazarlo, aunque del texto de la acción de inconstitucionalidad en donde se menciona, no se observa su relación o aplicabilidad al tema en discusión.

Finalmente, se alega que los extranjeros residentes quedan en mejores condiciones que los nacionales; argumento respecto del cual tampoco se hace un desarrollo adecuado o una fundamentación razonable del concepto que se quiere transmitir al Tribunal y esa omisión es suficiente motivo para su rechazo. No obstante, como bien quedó especificado supra, el Convenio busca la equidad entre nacionales y residentes en idénticas condiciones en cuanto a los temas regulados en el convenio, porque nuevamente, lo que interesa acá es el reconocimiento y la tutela que se hace en el país del derecho fundamental a la pensión y a la jubilación. Estima la Sala que no pueden abstraerse unas condiciones aisladas de su contexto y extrapolarlas a un régimen de pensiones que debe valorarse integralmente y que tiene condiciones distintas a los supuestos regulados en el Convenio, pero que, conforme se ha valorado en esta sentencia, se observa que cumple con los parámetros sentados por ese instrumento internacional. En consecuencia, los reclamos relacionados con estos argumentos, deben ser rechazados.

LXXV.- Redacta la Magistrada Hernández López. Sobre el alegato de la falta de estudios demográficos y sociológicos apropiados para fundamentar la reforma realizada con la Ley 9544. Una parte de los accionantes argumenta que la decisión del legislador de extender la edad de jubilación para los servidores y servidoras judiciales, debió de haber contado con un estudio técnico de tipo sociológico y demográfico que pudiere haber determinado, a ciencia cierta, la posibilidad de que Jueces de todas las materias que tramita el Poder Judicial, así como policías judiciales, personal administrativo, Fiscales, Defensores Públicos, entre otros, pueden laborar sin afectar el servicio, pero sobre todo su salud física y mental, al extender los años de servicio para pensionarse, cuestionando la decisión adoptada al respecto en la Ley 9544 sin contarse con ese tipo de criterio técnico. Para valorar este argumento, es indispensable partir del objetivo por el cual el legislador se planteó la reforma al Régimen del Fondo de Jubilaciones y Pensiones del Poder Judicial y que consistió en la necesidad de adoptar medidas para recuperar el equilibrio actuarial de ese Fondo a fin de hacerlo solvente a un plazo de 100 años, ello por cuanto la situación estaba en un nivel de riesgo muy alto para sus miembros activos cotizantes, como también para los jubilados y pensionados a los que atiende; riesgo presente y futuro con el agravante de que si no se adoptaban las medidas necesarias, se podía convertir en una carga para el Estado a través del Régimen de Invalidez, Vejez y Muerte de la CCSS o por la vía de presupuesto nacional. Por tal razón, ante la inminencia de las decisiones a adoptar desde el punto de vista actuarial, lógicamente los estudios e informes técnicos que se requerían, estaban dirigidos a conseguir el objetivo propuesto, por lo que varios actores intervinieron para solicitar al Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, que elaborara un Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial que, posteriormente, sirvió como base para que la Asamblea Legislativa dictara la Ley 9544 aquí cuestionada. Ahora bien, lo anterior no quiere decir que para adoptar medidas en relación con un fondo de jubilaciones y pensiones, solamente sean suficientes estudios técnicos actuariales; sin embargo, la decisión, sobre el diseño de tales regímenes en definitiva, es materia propia de la libertad de configuración del legislador. Desde esta perspectiva, es posible que en algunos casos de fondos especiales de jubilación y pensión, o bien, en algunos centros laborales, pudieran existir situaciones particulares en relación con algún colectivo de trabajadores y trabajadoras que, por el tipo de labores que realizan, requieran condiciones de acceso al régimen, pertenencia, pensión o jubilación que no pudieren ser aplicadas a la generalidad de sus miembros y que, por esa razón, se podrían requerir otro tipo de estudios técnicos de tipo demográfico, social o de otra clase -como los que se reclama-, que permitieran al legislador adoptar decisiones más equilibradas en atención a ese grupo particular de personas, incluyendo lo que en otros países se ha llamado “prejubilación”; sin embargo, se reitera que ello es una potestad del legislador y no de este Tribunal. En tal sentido inclusive, se puede observar a folio 1706 del expediente legislativo en la que consta que, ante una pregunta de un diputado al Superintendente de Pensiones de ese momento, respecto de población con necesidades especiales por su carga laboral, la respuesta que brindó fue que, como recomendación, “es que haga un fondo de prejubilación y no lo meta en el fondo ordinario, porque claro, si usted modifica las condiciones del fondo ordinaria (sic) para atender un subgrupo con necesidades especiales, afecta todo el fondo solo por un subgrupo. En cambio, si usted crea un fondo de prejubilación separado del fondo principal, pueda tener esa población y acortar el costo de esa población”. Así las cosas, debido a que la pretensión que se plantea en este extremo -relativa a la ausencia de otro tipo de estudios técnico-s, escapa de las competencias propias de este Tribunal, debe decirse que, en lo que a esta Sala le compete, esa omisión para el caso concreto de la Ley 9544, no se considera lesiva del Derecho de la Constitución, quedando abierta la puerta para el legislador a fin de que, en un futuro, si lo considera necesario, cuente con esa posibilidad.

LXXVI.- Redacta la Magistrada Hernández López. Sobre el principio de mutabilidad en materia de seguridad social. Argumenta un sector de los accionantes que comprenden los alcances del principio de mutabilidad del ordenamiento jurídico por cuanto éste responde a realidades, pero también afirman que la mutabilidad debe hacerlo flexible, adaptable y conveniente para regular la vida en sociedad, considerando que la Ley 9544 no permite que ello se aplique pues, en una sola burbuja de efectos jurídicos idénticos, se coloca a funcionarios que tienen circunstancias personales muy disímiles asumiendo la carga de la reforma en igualdad de condiciones. En relación con este principio debe recordarse que esta Sala en reiteradas ocasiones ha señalado que nadie tiene derecho a la inmutabilidad del ordenamiento, es decir, a que las reglas nunca cambien (ver sentencia número 6134-98 de las 17 horas 24 minutos de 26 de agosto de 1998) y tratándose de regímenes especiales de jubilaciones y pensiones, el legislador cuenta con plena potestad de realizar las modificaciones que estime pertinentes para darle sostenibilidad al régimen, pero además porque se trata de sistemas solidarios que se van construyendo con el aporte de trabajadores, patronos y el Estado en la proporción legalmente establecida, de manera que a efecto de garantizar el cumplimiento de principios básicos de la seguridad y protección social, es competencia, pero además obligación del legislador, el adoptar las medidas que sean necesarias para mantener el equilibrio actuarial en esos regímenes y ello implica, que la mutabilidad del ordenamiento en esta materia, está dirigida a satisfacer el interés de la colectividad y no los intereses particulares que pudieren tener algunos de sus miembros. Recuérdese que, inclusive, en esta materia, en atención a los fines sociales que tutela, pudiere ser posible que eventualmente se diera alguna modificación que pudiere considerarse regresiva, pero ello sería válido en la medida en que sea por ley, esté justificado en criterios técnicos y atienda parámetros de razonabilidad y proporcionalidad. Desde esta perspectiva entonces, este alegato es improcedente y se considera que, en el caso concreto, la mutación del ordenamiento que ha operado en el Fondo de Jubilaciones y Pensiones del Poder Judicial a partir de la reforma impugnada, se ajusta al Derecho de la Constitución por cuanto está dirigida a conseguir un objetivo que es de carácter social, solidario y colectivo: garantizar la solvencia de aquel Fondo por 100 años más en beneficio de sus miembros actuales y futuros.

LXXVII.- Redacta el Magistrado Castillo Víquez. Sobre la ausencia de normativa que regule beneficios por postergación del derecho jubilatorio. Consta en autos que un sector de los accionantes cuestiona las modificaciones introducidas al Régimen de Jubilaciones y Pensiones del Poder Judicial a través de la Ley 9544, por carecer de normas específicas que otorguen beneficios a los trabajadores y trabajadoras del Poder Judicial que deciden postergar su jubilación, lo que sí se ha establecido y regulado para otros regímenes de pensiones que existen en el país como es el caso del IVM de la CCSS. Sobre este extremo, es oportuno mencionar lo que dispone el artículo 25 del Reglamento del IVM, según el cual:

"Artículo 25. El asegurado que cumpla los requisitos para tener derecho al disfrute de pensión por vejez, tendrá derecho a una pensión adicional por postergación del retiro, a partir de la fecha en que haya cumplido los requisitos legales y reglamentarios. Esta pensión adicional consistirá en el 0,1333% por mes sobre el salario promedio calculado según el articulo 23°.

El monto de la pensión adicional por postergación del retiro sumado al monto de la pensión ordinaria calculada según el artículo 24° de este Reglamento, no podrá exceder del 125% del salario o ingreso promedio indicado." Obsérvese que ese beneficio por postergación se traduce en un reconocimiento económico para el trabajador (a) que, por condiciones personales, profesionales o de cualquier tipo, decide no acogerse a su derecho a la jubilación o pensión en el momento en que le correspondería, sino que decide mantenerse activo, laborando.

La mayoría de este Tribunal considera que dentro de la gama de derechos fundamentales que están reconocidos en el ordenamiento jurídico costarricense, se encuentra el derecho a la jubilación, tal y como se ha explicado en su jurisprudencia. No obstante ello, no es posible deducir de ese derecho fundamental, ni de ningún otro, que haya un derecho fundamental a la postergación de la jubilación, de ahí que todo lo relativo a esto es un asunto de política legislativa- en los casos de los regímenes especiales- o que atañe a las competencias constitucionales que corresponden a la CCSS -en el supuesto de régimen del IVM-, por lo que el hecho de que en un régimen especial o general no se contemple este supuesto, no conlleva una inconstitucionalidad de esa omisión. Tampoco es de recibo el argumento que se vulnera el principio de igual, toda vez que en el caso del régimen del IVM sí está previsto este beneficio, mientras que en el régimen de Pensiones y Jubilaciones del Poder Judicial no, por la elemental razón de que se trata de regímenes diferentes, de distinta naturaleza, de perfiles jubilatorios diferentes – edad de retiro, monto de cotización, cálculo de la jubilación, etc.-, de ahí que no es posible deducir un quebranto al derecho de igual, toda vez que las personas que pertenecen al régimen general no se encuentran en la misma situación de las personas que están en régimen especial, ni las proyecciones actuariales en uno y otro régimen son iguales. Hay que tener presente que el derecho a la igualdad ante la ley no significa que el legislador debe tratar de manera igual a las personas que están en regímenes que, algunos aspectos no sustanciales, tienen ciertas características similares, lo anterior porque no toda desigualdad tiene tal magnitud o intensidad que lesione su núcleo esencial, para que tal hecho acontezca es necesario que se trate de una discriminación odiosa, que suponga en sí misma o por sus efectos una violación a un derecho fundamental, situación que no se presenta en el sub judice. Finalmente, hay que tener presente que la inconstitucionalidad por omisión se da en aquellos casos que se omite realizar por parte del legislativo un mandato expreso que está en la Carta Fundamental o se trata de una omisión relativa, es decir, aquellos casos en los cuales de da un trato diferenciado a grupos que están en la misma posición sin que haya una justificación objetiva y razonable y no se busca la concretización de un fin constitucional, situación que no se da en el sub judice, tal y como explicó supra.

En la sentencia 10653-2019 este Tribunal expresó sobre la inconstitucionalidad por omisión lo siguiente:

“II.- SOBRE LA INCONSTITUCIONALIDAD POR OMISIÓN. En tanto se acusa, en el sub judice, la configuración de una presunta inconstitucionalidad por omisión, resulta de relevancia remitir a lo resuelto por esta Sala respecto al tema de las omisiones legislativas y su control por parte de este Tribunal Constitucional. Así, por ejemplo, recientemente, en el voto No. 2018-018592 de las 09:20 horas del 07 de noviembre de 2018, esta Sala reiteró:

‘(…) Esta Sala, en la Sentencia No. 2005-05649 de las 14:39 hrs. de 11 de mayo del 2005, definió los rasgos más relevantes de la denominada inconstitucionalidad por omisión, prevista en el artículo 73, incisos a) y f), de la Ley de la Jurisdicción Constitucional, bajo los siguientes términos:

‘(…) El Derecho de la Constitución, esto es, el conjunto de principios, valores y preceptos constitucionales contenidos en la Carta Magna, pueden ser infringidos por los poderes públicos y los particulares mediante conductas activas u omisas. Para el supuesto particular de la Asamblea Legislativa, ese poder del Estado quebranta el bloque de constitucionalidad por acción cuando dicta leyes inconstitucionales o cuando, durante el procedimiento legislativo para su emisión, incurre en vicios sustanciales de tal entidad que ameritan su anulación. La Asamblea Legislativa infringe por omisión el parámetro de constitucionalidad cuando, ante un mandato expreso o tácito del constituyente originario o del poder reformador para que se dicte una ley que desarrolle un contenido o cláusula constitucional, no lo hace –omisión absoluta- o bien cuando a pesar de haber dictado una ley esta resulta discriminatoria, por omisión, al no regular la situación de un determinado sector o grupo de la población o de los eventuales destinatarios que debió comprender o abarcar –omisión relativa-. En sendos supuestos, este Tribunal Constitucional tiene competencias suficientes y habilitación normativa expresa para ejercer el control de constitucionalidad y declarar una eventual inconstitucionalidad de la conducta omisa (…)’.

Se precisa ahí que se trata de un tipo de inconstitucionalidad específica, a la cual no puede reconducirse cualquier figura revestida de forma omisiva, como lo puso también en evidencia el voto de la Sala No. 2010-8600 de las 15:08 hrs. de 12 de mayo del 2010:

‘(…) Si bien este Tribunal Constitucional se encuentra facultado para actuar como un legislador negativo, con la potestad de anular del ordenamiento jurídico todas aquellas normas que considere inconstitucionales, lo cierto es que se encuentra impedido para actuar como un legislador positivo creador de normas. Por otra parte, aún cuando esta Sala es competente para conocer de las omisiones legislativas conforme lo establece el artículo 73 de la Ley de la Jurisdicción Constitucional, es importante aclarar que no toda omisión normativa puede ser objeto de impugnación por esta vía. En ese sentido, solo aquellas omisiones que se producen como consecuencia de un mandato expreso y directo contenido en la Constitución Política pueden ser objeto de control de constitucionalidad por la vía de la acción. Ahora bien, en el caso concreto, el accionante reclama que las normas no indican cuál es el procedimiento para la designación de representantes de los trabajadores en caso de un conflicto colectivo, pero la omisión impugnada por la parte actora no proviene de un mandato expreso del constituyente, se trata más bien de una omisión que ésta dice encontrar en el texto del artículo, sin que el deber de legislar en el sentido explicado por el accionante provenga de la Constitución Política. Asimismo, al ser éste un Tribunal que actúa como legislador negativo, queda claro que una eventual sentencia estimatoria, con la consecuente eliminación de la norma, no repararía la omisión indicada por el promovente, por lo que la acción planteada en esos términos, carece de utilidad y por ende es manifiestamente improcedente. Como en este caso, lo impugnado no es en sí el texto de las normas, sino aquello que -a criterio del accionante- omiten, este Tribunal no puede pronunciarse con el fin suplantar competencias de otros órganos o poderes. Bajo tales circunstancias, la acción resulta inadmisible en cuanto a este extremo. (…)’.

De esta forma, la Sala ha procurado que no se desvirtúe la figura técnica de la inconstitucionalidad por omisión, a través de alegatos por medio de los cuales lo que se procura es la modificación de ciertos textos legislativos a favor de intereses puntuales. Evidentemente, que un texto tenga un contenido específico y omita otro, es una simple generalidad hermenéutica, que solo en los casos específicos que definió la Sala desde la Sentencia No. 2005-5649, llega a configurar el supuesto de la inconstitucionalidad por omisión. Es decir, solamente cuando el vacío implique la infracción de un mandato expreso constitucional, es posible ejercer el control en cuestión. La procedencia de una acción de inconstitucionalidad por omisión obliga a demostrar que la Constitución exige, para la plena exigibilidad de sus preceptos, una actuación del Poder Legislativo o Ejecutivo, con un contenido determinado”.

LXXVIII.- Redacta la Magistrada Hernández López. Sobre el cuestionamiento de que sea la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social la que determine si un trabajador (a) puede ser acreedor de una pensión anticipada por enfermedad.- Algunos accionantes cuestionan que sea la Comisión Calificadora del Estado de Invalidez de la Caja Costarricense de Seguro Social, la que determine si un trabajador (a) puede ser acreedor de una pensión anticipada por enfermedad y no la Medicatura Forense del Poder Judicial, como había sido siempre en la institución, y argumentan que ello es irracional porque además de que se sujeta a las personas que deben ser evaluadas a largas listas de espera debido al atraso que maneja esa Comisión, al final, dentro de los procesos de seguridad social, es el Consejo Médico Forense la última instancia de revisión de las actuaciones del órgano médico calificador de la CCSS, por lo que estiman que el artículo 227 de la Ley 9544, es contrario al Derecho de la Constitución. En cuanto a este punto debe señalarse que dentro de la libertad de configuración que tiene el legislador, la definición de este tipo de competencias es materia de oportunidad y conveniencia propia de sus potestades de creación de la Ley, considerándose que no existe ninguna vulneración de derechos fundamentales con esa decisión y por tanto, se rechaza este argumento.

LXXIX.- Redacta el Magistrado Castillo Víquez. Sobre la conservación de derechos en vía de adquisición incluidos en el Convenio 157 de la OIT. Un grupo de accionantes alegan que con la ausencia de criterios de gradualidad para la aplicación de la Ley 9544, se lesiona el principio de conservación de derechos en vía de adquisición que está incluido en el Convenio 157 de la OIT por cuanto las personas con muchos años de estar cotizando para el Fondo de Jubilaciones y Pensiones del Poder Judicial, si bien no tienen un derecho adquirido, contaban con derechos en vía de adquisición y por ende, se les debió de haber dado un trato diferente y superior a una simple expectativa de derecho y mencionan que, en ese sentido, el Tribunal Constitucional de Colombia reconoció en la sentencia número T-235 de 2002, que “la sustitución de una norma por otra exige la necesidad de un régimen de transición. La existencia de normas transitorias es indispensable en la designación sobre seguridad social en pensiones porque hay derechos en vía de adquisición”. Sobre el particular, en primer lugar, debe indicarse que según se puede observar en la página oficial de la Organización Internacional del Trabajo y la información visible en el link:https://www.ilo.org/dyn/normlex/es/f?=1000:11210:0::NO:11210:P11210_COUNTRY_ID:102599, el Convenio 157 de esa Organización, no ha sido ratificado por Costa Rica y, por ende, se trata de una propuesta que no es vinculante para el legislador. En lo que a este Tribunal Constitucional le corresponde, debe decirse que si bien, los artículos 6 y 7 de este Convenio que regulan lo relativo al sistema de conservación de los derechos en curso de adquisición, pueden servir como parámetros de interpretación, también es lo cierto que, en cuanto a este punto, la Sala no se encuentra sometida a la necesidad de realizar ninguna interpretación debido a que la situación es muy clara, pues existen criterios técnicos que dieron sustento a la decisión adoptada por el legislador en la Ley 9544 y porque además, la Sala observa que se han cumplido por parte de la Asamblea Legislativa los parámetros mínimos en materia de seguridad social exigidos por el llamado "Convenio sobre la seguridad social" o Convenio 102, que es el que estipula las normas mínimas en ese campo, de acatamiento obligatorio para todos aquellos países que lo hayan suscrito y ratificado, como es el caso de Costa Rica, dentro de las diversas posibilidades que ofrece. En consecuencia, este reclamo debe ser rechazado.

LXXX.- Redacta la Magistrada Hernández López. Sobre el contrato de trabajo de las personas que trabajan en el Poder Judicial: Dentro de los alegatos de fondo que se han planteado en contra de las reformas introducidas por la Ley 9544 aquí impugnada, se argumenta que, con ellas, ha operado una modificación del contrato de trabajo de las personas que ingresaron a laborar bajo las condiciones de jubilación que se contenían en la Ley 7333 y que ello implica un cambio radical que lesiona sus derechos fundamentales. Debe recordarse que en la relación laboral de empleo público, y siempre que exista la debida justificación, las condiciones laborales bajo las cuales se desempeñan los servidores, puedan ser modificadas en aras de la necesidad de mejorar el servicio y de satisfacer el interés público, por lo que el servidor se deberá de ajustar a la normativa que se vaya emitiendo. En el caso bajo estudio, técnicamente ha quedado más que demostrado que, en aras de fortalecer el Fondo de Jubilaciones y Pensiones del Poder Judicial y darle sostenibilidad por los próximos 100 años, era necesario realizar las modificaciones que se plasmaron en la Ley 9544, las cuales redundan en beneficios para los propios trabajadores y, por tanto, no es acertado considerar que tales reformas impliquen un cambio en el contrato de contrato de trabajo de los servidores y servidoras judiciales, quienes están obligados como beneficiarios del fondo a las medidas necesarias para su sostenibilidad.

LXXXI.- Redacta la Magistrada Hernández López. Sobre la modificación a la estructura salarial debido a la Ley 9544: A partir de las reformas introducidas por la Ley 9544 en relación con los nuevos montos a cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial, tanto para los servidores y servidoras activos como para los que ya se encuentran en condición de jubilados y pensionados, se han planteado varios cuestionamientos relativos a la nueva conformación de la estructura salarial, estimando que ello es lesivo de los derechos fundamentales de las personas trabajadoras del Poder Judicial, pero igualmente, de los jubilados y pensionados en cuanto a los componentes de su prestación pecuniaria. En relación con este tema, no puede perderse de vista que el objetivo de la reforma es restituir la solvencia actuarial del Fondo y hacerlo sostenible para los próximos 100 años; objetivo que, además de ser de interés institucional y estatal, va a reportar los mayores beneficios para sus miembros, por lo que las reformas introducidas por la Ley 9544 se justifican, aún cuando ello implique aumentar las cotizaciones de los asociados a ese Fondo, ya sean activos y jubilados o pensionados, lo cual fue aceptado por los diferentes gremios de trabajadores y trabajadoras del Poder Judicial al ser conscientes de la necesidad de las reformas. Por tales razones, si en razón de las modificaciones introducidas, se ha aumentado el monto de la cotización al fondo y se ha introducido un rubro para pagar la administración del Fondo, ello no tiene la virtud de vulnerar ningún derecho fundamental, toda vez que el objetivo final lo justifica y, como ha quedado acreditado, se ha sustentado en estudios técnicos. En consecuencia, en cuanto a este extremo, se rechazan los reclamos que han sido formulados.

LXXXII.- RAZONES DIFERENTES DEL MAGISTRADO CASTILLO VÍQUEZ. - Sobre el núcleo duro del derecho a la jubilación o pensión. La doctrina del núcleo duro o contenido esencial de los derechos humanos surge en Alemania con base en lo dispuesto por el artículo 19 de su Constitución. Ahora, si bien no existe un acuerdo a nivel general sobre que comprende el contenido esencial de un derecho fundamental, para su determinación resultan de utilidad los métodos que ha utilizado el Tribunal Constitucional español en su jurisprudencia. En ese sentido, en la sentencia número STC 11/1981 del 8 de abril de 2011, el Tribunal definió al contenido esencial como “aquella parte del contenido de un derecho sin el cual éste pierde su peculiaridad, o, dicho de otro modo, lo que hace que sea reconocible como derecho perteneciente a determinado tipo. Es también aquella parte del contenido que es ineludiblemente necesaria para que el derecho permita a su titular la satisfacción de aquellos intereses para cuya consecución el derecho se otorga… se rebasa o desconoce el contenido esencial cuando el derecho queda sometido a limitaciones que lo hacen impracticable, lo que resulta más allá de lo razonable o lo despojan de la necesaria protección”. De lo expuesto anteriormente, se desprende que el primero de los métodos se refiere a la naturaleza jurídica del derecho, preexistente al momento en que es regulado por el legislador, de manera que las facultades y posibilidades de actuación necesarias para el titular, hacen reconocible el contenido del derecho, de forma que si el legislador lo priva de dichas facultades, lo deja irreconocible y lo desnaturaliza, dicha actuación es contraria al Derecho de la Constitución. Por otra parte, el segundo método corresponde a los intereses jurídicos que deben ser protegidos en cuanto dan fundamento al derecho, de forma tal que el contenido se lesiona cuando el derecho es sometido a limitaciones que impiden su práctica, lo dificultan más allá del límite de lo razonable, o lo despojan de la necesaria protección.

El derecho a la jubilación, al igual que cualquier otro derecho, cuenta con un núcleo duro que resulta indisponible para el legislador, de forma tal que éste no puede imponer limitaciones que impidan el ejercicio real del derecho. En atención a ello, no resulta posible el establecimiento de contribuciones que conlleven a que la persona reciba un monto por concepto de jubilación o pensión que no le permita tener una vida digna y satisfacer sus necesidades, pues, en este caso, se desnaturaliza el derecho fundamental. En ese sentido, en el estudio Pensions at Glance, la Organización para la Cooperación y el Desarrollo Económico (Organismo que agrupa a 34 países, y que tiene como fin el crecimiento del bienestar económico y social de las personas en el mundo), explica que, en la gran mayoría de los países analizados en esa investigación, hay un sistema de contribuciones progresivas, donde los trabajadores con ingreso promedio pagan generalmente más impuestos que el pensionado que contaba con un ingreso promedio durante su época como trabajador activo, dado que estos últimos por concepto de jubilación o pensión reciben ahora un ingreso menor. Asimismo, en dichos países las personas que devengan por concepto de jubilación o pensión un ingreso igual al promedio del trabajador activo pagaran una contribución mayor que los demás jubilados o pensionados, toda vez que se presume que durante su época como trabajador recibía un ingreso que estaba por encima del promedio general. En el estudio de cita, se menciona, a modo de ejemplo, que en Alemania un trabajador promedio paga un 37 % de contribución, mientras que el pensionado que recibía un salario promedio en su época de trabajador contribuirá con un 18%, y en el caso del que posee una jubilación o pensión igual al ingreso de un trabajador promedio, paga un 30%. Finalmente, en dicha investigación, se dispone que las contribuciones que pagan los jubilados van entre un 0 hasta un 40%.

Ahora, si bien conforme lo dispuesto por los Convenios 102 y 128, y la Recomendación 131 de la Organización Internacional de Trabajo, el núcleo duro del derecho a la jubilación o pensión puede establecerse, respectivamente, en un 40%, 45% o 55% del monto bruto que recibe la persona por dicho concepto, considero que, con base en lo dispuesto por el artículo 29 de la Convención Americana sobre Derechos Humanos -que autoriza a los Estados partes a reconocer mayores derechos de los que se encuentran en los Instrumentos Internacionales de Derechos Humanos-, la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, así como en aplicación de los principios de razonabilidad y proporcionalidad, resulta necesario fijar el núcleo duro del derecho a la jubilación o pensión en un 50% del monto antes mencionado, de forma tal que el legislador, en el ejercicio de la potestad tributaria, no puede traspasar ese porcentaje mediante el establecimiento de contribuciones tributarias, no tributarias o de otra índole –tales como deducciones por concepto de contribuciones especiales solidarias y retributivas, impuestos y otras cargas-. Para determinar el monto de la carga tributaria del 50%, debe tomarse en cuenta el impuesto al salario que han afectado al trabajador durante su vida laboral, toda vez que este se calcula sobre el monto bruto de su salario, por lo que los aportes para su régimen jubilatorio ya han sido gravados; si no fuese así, se estaría ante una especie de doble imposición, pues al gravarse el salario también ello incluye al aporte, por lo que es necesario que este se tome en cuenta al momento de establecer el monto de la carga tributaria sobre la jubilación y pensión. Cabe aclarar que el porcentaje antes mencionado –el 50% - responde al hecho de que los jubilados constituyen un grupo vulnerable, que requiere de protección especial, de ahí que cualquier rebajo a su jubilación mayor al monto antes establecido, conlleva a que se le desnaturalice, vulnerándose así la protección especial que la propia Constitución les otorga en el artículo 51 a los adultos mayores, y la establecida en los instrumentos internacionales de Derechos Humanos, como la recién aprobada Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, que, entre otras cosas, establece la obligación de los Estados firmantes de proteger una serie de derechos de esta población, tales como: el acceso a vivienda, salud, educación, igualdad y no discriminación por razones de edad, independencia, dignidad en la vejez, seguridad social y libertad de expresión, entre otros. Hay que tener presente, siguiendo la doctrina sentada por este Tribunal, en el sentido que los instrumentos internacionales de Derechos Humanos una vez promulgada la Ley que los aprueba, tienen plena vigencia en el país, sin necesidad de esperar su ratificación y entrada en vigencia conforme a las reglas que el mismo instrumento establece para ello, por la elemental razón de que su destinatario final es la persona, sea los habitantes de la República, por lo que el Estado de Costa Rica está en la obligación de respetar su contenido, objeto y fin –véase la sentencia n.° 7498-2000, entre otras cosas-. En este análisis no se puede perder de vista que el Convenio 102 de la O.I.T. fue aprobado mediante Ley n.° 4736 de 29 de marzo de 1971 –el 128 no ha sido aprobado ni ratificado-, mientras que la Convención Interamericana sobre la Protección de los Derechos de las Personas Adultas Mayores fue aprobado mediante Ley n.° 9394, ratificado por el Poder Ejecutivo mediante decreto ejecutivo n.° 39973-RE, lo que supone que entre la entrada en vigencia del primero y el segundo hay un lapso de tiempo muy prolongando –casi cuarenta y cinco años- donde la visión, interpretación y aplicación de las normas del Derecho Internacional de los Derechos Humanos ha sufrido una importante evolución, sobre todo a partir de la utilización de los principios pro libertatis y pro homine, situación que no puede pasar por alto este Tribunal, por lo que la aplicación de las normas que se encuentran en los Convenios de la O.I.T. no pueden ser interpretadas ni aplicadas desconociendo esta realidad y la promulgación de otros Instrumentos Internacionales sobre Derechos Humanos que amparan los derechos de las personas adultas mayores, máxime que el Convenio 102 se limita a establecer: normas mínimas de la seguridad social. Tampoco puede dejar de lado este Tribunal lo que se expresa en la Recomendación n.° 43 de la O.I.T. sobre Principios Generales de Seguros de Invalidez, Vejez y Muerte, adoptado en 17° Reunión de C.I.T. el 29 de junio de 1993, en el sentido que la pensión debe cubrir las necesidades esenciales, debe tomar en cuenta el costo de vida y garantizar una pensión que corresponda a la situación social del jubilado durante el período de actividad profesional e, incluso, la pensión de las personas que tengan acreditados treinta años efectivos de cotización no debe ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante el periodo determinado que precede inmediatamente a la liquidación de la pensión. Así las cosas, se impone hacer una interpretación armoniosa y evolutiva entre los dos instrumentos internacionales de derechos humanos –el Convenio de la O.I.T y la Convención- y así garantizar un mínimo de la jubilación que le permita a la persona adulta mayor disfrutar de una vida digna, sea contar con ingresos suficientes para concretizar los derechos que le otorga la Convención, situación que resulta más cierta cuanto los aportes del trabajador, el patrono y el Estado están en armonía o en una relación lógica y razonable con lo que el jubilado o pensionado recibe mensualmente por concepto de la jubilación.

También forma parte del núcleo duro del derecho a la jubilación, el que no puede ser afectado por el Estado en ejercicio de la potestad tributaria, lo que se ha denominado como “el núcleo de aportes” que ha realizado el trabajador, su patrono y el Estado al sistema jubilatorio durante toda su vida como trabajador activo y sus aportes como jubilado o pensionado al respectivo régimen, cuando se le impone el seguir aportando al régimen de pensión, así como los respectivos rendimientos. A ello habría que agregar sus aportes al segundo y tercer pilar del régimen de jubilaciones y pensiones, sea al régimen obligatorio de pensiones obligatorias y al régimen de jubilaciones y pensiones complementario voluntario, toda vez que ello constituye su ahorro de toda la vida para procurarse una vejez digna, amén de que, en un importante número de trabajadores activos, esos aportes fueron oportunamente gravados por los impuestos al salario y demás cargas tributarias, ya que estos últimos se calculan sobre el salario bruto, y no sobre el neto devengado. En lo que atañe a la contribución del Estado como patrono y como Estado, no es posible sostener que a causa de esos aportes la potestad tributaria no tiene límites o debe ser más intensa, por la elemental razón de que todos los regímenes de jubilaciones y pensiones parten de un pilar fundamental que se encuentra consagrado en el artículo 73 de la Constitución Política, sea: el sistema de contribución forzosa del Estado, patronos y trabajadores, por lo que, indistintamente de que se trate de un régimen de reparto o de capitalización, sea en su modalidad colectiva o individual, los aportes del Estado como patrono y como tal forman parte de los recursos necesarios para que el trabajador obtenga una jubilación o pensión. De ahí que resulta falaz el argumento, en el sentido de que como el Estado hace un determinado aporte en su doble condición, la potestad tributaria es más elástica. Amén de que este argumento va en contra de un principio constitucional, como lo es el de confianza legítima. Es decir, el trabajador activo cotiza una suma de dinero para la seguridad social en el entendido de lo que aporta el Estado en su doble condición será respetado; de lo contrario, estaríamos avalando que lo que originalmente y durante toda su vida laboral el Estado le garantizó al trabajador, una vez jubilado o pensionado se le sustraiga mediante el ejercicio de la potestad tributaria. Como es bien sabido, la confianza legítima es un concepto acuñado en el Derecho Alemán (Vertrauensschutz), donde tiene rango constitucional, derivado del principio de seguridad jurídica y en otros ordenamientos jurídicos también del principio de buena fe. Este principio es de vieja data. En efecto, ya el Tribunal de Justicia de la Comunidad Europea (TJCE), pese a que no estaba recogido en los Tratados Constitutivos, lo reconoció en 1973 en materia de función pública (As. 81/1972 del 5 de junio). Para su correcta interpretación y aplicación, según la doctrina, se exigen de ciertos requisitos: 1) que haya una acción de las autoridades comunitarias que justifique las legítimas expectativas de los afectados (y, en este sentido, es posible tanto una medida legal como ilegal que confiera beneficios, prácticas administrativas, promesas realizadas, información errónea suministrada, cambios normativos sorpresivos, etc.), 2) Las expectativas de la persona que tiene una base subjetiva deben, en su caso, ser reconocidas y consideradas por un observador externo y ser capaces, de esa forma, de adquirir una base y dimensión objetiva de tal forma que se conviertan en lo que el Tribunal denomina “esperanzas fundadas” no contrarias al Derecho Comunitario; y 3) es preciso que en la valoración de los intereses de la persona afectada en contraposición con el interés público en presencia, este último no sea preponderante. Como puede observarse, si el Estado como patrono y como tal hacen un aporte a un régimen de jubilaciones o pensiones para financiar las jubilaciones y pensiones de los trabajadores activos, hay una expectativa fundada en él de que esos recursos serán utilizados para ese fin, de ahí que no resulta legítimo y acorde con los principios de seguridad jurídica y buena fe que luego el Estado, en uso de la potestad tributaria, retome esos recursos y desmejore el monto de la jubilación o pensión. Además, en este caso la ponderación entre el interés público y el interés de la persona no se ve afectado, toda vez que la exigencia del aporte del Estado en su doble condición es a causa de un expreso mandato constitucional, por lo que, actuar en sentido contrario, conllevaría vulnerar el Derecho de la Constitución (principios, valores y normas) y, por consiguiente, afectar los intereses públicos – el derecho a la seguridad social que tienen todos los trabajadores-.

Por último, y aunque no es objeto de estas acciones de inconstitucionalidad, exceptuando el caso de la contribución que sí se les puede exigir a los jubilados y pensionados de seguir contribuyendo a la sostenibilidad de su régimen, no se podría dar un trato diferenciador a los jubilados y pensionados de otros regímenes de jubilaciones y pensiones que reciben igual o menos que el monto de la jubilación o pensión máxima que otorga la Caja Costarricense de Seguro Social en relación con los tributos que pagan los jubilados y pensionados de este último régimen, por la elemental razón de que estas personas jubiladas y pensionadas reciben un ingreso razonable y necesario para llenar sus necesidades básicas, ni muchos menos gravar con impuestos a estas personas jubiladas y pensionadas –de todos los regímenes-, cuando resulta que los trabajadores activos no están sujetos a los tributos porque no caen en el supuesto de hecho que prevé la norma para que se dé el hecho generador en los distintos impuestos, contribuciones parafiscales, etc., o imponerles tributos superiores a los que pagan los trabajadores activos -con excepción de la contribución al régimen respectivo-.

Finalmente, y sin demérito de lo anterior, conviene aclarar que el criterio antes mencionado para el establecimiento del núcleo duro al derecho a la jubilación, no resulta aplicable para la fijación de los topes en materia de jubilaciones y pensiones, pues se tratan de asuntos distintos, aunque relacionados entre sí, amén de que lo relativo a los topes cuentan con sus propias reglas, los cuales se definen con base en estudios actuariales o técnicos, a criterios de razonabilidad y proporcionalidad, a la relación lógica y necesaria que debe existir entre la cotización que hace el trabajador y el patrono para el régimen respectivo y el monto de la jubilación, y a la concretización del principio de solidaridad social.

LXXXIII.- NOTA DEL MAGISTRADO CASTILLO VÍQUEZ. Las razones que llevaron a la Presidencia de este Tribunal a habilitar, en un primer momento, y, luego, a rechazar las diversas gestiones planteadas por la magistrada Garro Vargas están expuestas con meridiana claridad en diversas resoluciones dictadas en la acción de inconstitucionalidad No. 18-007819-0007-CO. Así, en la resolución de las 9:57 hrs. del 27 de abril de 2020, la Presidencia señaló lo siguiente:

V.- La condición de la magistrada Garro Vargas cambió desde la resolución de su primera gestión. Como ella misma lo indica desde el 12 de febrero de 2020 es magistrada titular de esta Sala y, en esa condición, se le habilitó para conocer de esta acción -supra resultando 12-. Esta situación, magistrado titular habilitado que, siendo suplente había sido separado previamente del expediente, formula nuevamente inhibitoria ya ha sido analizada en este expediente. Así, esta Presidencia ha resuelto que:

“El magistrado Jorge Araya García, en su condición de magistrado suplente, ya había planteado una inhibitoria, en términos similares a los recién transcritos, la cual fue, en su momento, aceptada por la Presidencia a.i. de la Sala -­supra resultando 6-. Como bien lo precisa el magistrado Araya García, a partir del 1° de noviembre de 2018, asumió el cargo como magistrado propietario de esta Sala, lo que origina la presentación de esta nueva gestión.

V.- Para la resolución de esta gestión, el artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial establece que:

“Cuando, por impedimento, recusación, excusa u otro motivo, un servidor tenga que separarse del conocimiento de un asunto determinado, su falta será suplida del modo siguiente:

[…]

2.- Los Magistrados, por los suplentes llamados al efecto. Los miembros de los tribunales colegiados se suplirán unos a otros y, en caso de que a todos o a la mayoría les cubra la causal, por sus suplentes. Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”.

Asimismo, resulta de plena aplicación lo dispuesto en la resolución de las 14:40 hrs. del 3 de agosto de 2018 -supra resultando 9-, por la cual se habilitaron a los otros magistrados propietarios de esta Sala, que dispuso lo siguiente:

“Según lo dispuesto en la resolución transcrita, así como lo establecido en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial -supra Considerandos I y III-, corresponde a los Magistrados Propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los Magistrados que conozcan de un asunto en el cual los Magistrados Suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto”.

En virtud de las consideraciones hechas y en aplicación, además, de los principios generales del Derecho de la irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural, lo procedente es rechazar la gestión de inhibitoria del magistrado Jorge Araya García. La situación que expone el magistrado Araya García en este momento, el interés manifiesto en este asunto, desde su primera gestión de inhibitoria, o cualquier otra causal, son irrelevantes desde el momento que, por imperativo de ley -numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial trascrito-, está en la obligación de conocer esta acción. No es posible admitir que causales “sobrevinientes” -supra resultando 4- vengan a enervar dicha integración; aceptarlas, en este caso en particular, llevaría al extremo de no poder conformar un Tribunal y que la Sala no cumpla las competencias que, constitucionalmente, le han sido asignadas. En consecuencia, lo procedente es declararlo habilitado para el conocimiento de este asunto” (Resolución de las 15:05 hrs. del 6 de noviembre de 2018 dictada en este expediente).

VI.- Al tener todos los magistrados de esta Sala, tanto titulares como suplentes, algún motivo de inhibitoria a efectos de conformar el Tribunal -supra resultandos- no se valora cuál magistrado podría tener un motivo “privilegio” de separación, como sus parientes, sino las normas dispuestas en el ordenamiento jurídico para conformar el Tribunal. El numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial, no citado por la magistrada Garro Vargas, es claro en indicar cómo debe conformarse la Sala en una situación como la descrita: Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”. La situación de la magistrada Garro Vargas cambia desde el momento en que ella es integrante titular de este Tribunal y, en consecuencia, su deber legal y constitucional es conformar esta Sala para este caso. Sacar al juez natural del conocimiento de un asunto asignado a su despacho, más bien puede afectar la administración de justicia, y únicamente se justifica bajo causales y razones graves. Además de la norma transcrita, sería contrario al debido proceso el juzgamiento de un caso por parte de un tribunal incompetente o ad hoc, por ser éste uno de los alcances del llamado principio de "juez natural", "juez regular" o "juez ordinario", cuyo fundamento se encuentra en el artículo 35 constitucional. En virtud de lo expuesto y del derecho de la irrenunciabilidad de las competencias, de la plenitud hermética del ordenamiento jurídico y del juez natural, lo procedente es rechazar la gestión planteada por la magistrada Anamari Garro Vargas”.

Posteriormente, por resolución de las 8:44 hrs. del 2 de junio de 2020, la Presidencia precisó, aún más, las razones por las cuales la magistrada Garro Vargas fue habilitada para conocer dicha acción de inconstitucionalidad:

V.- Sobre la supuesta omisión en la resolución del 27 de abril de 2020 (II.- a). La magistrada Garro Vargas señala que la resolución del 27 de abril de 2020 es omisa y no analizó todos sus argumentos por cuanto, contrario a lo indicado, sí se refirió al artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial. La magistrada Garro Vargas, en su gestión de inhibitoria señaló lo siguiente:

“Como es sabido, las normas que rigen los motivos de impedimentos para conocer de un asunto en la jurisdicción constitucional están contempladas, en orden de prelación, en los artículos 4, 6 y 14 de la Ley de la Jurisdicción Constitucional (LJC), artículos 25 y 31 de la Ley Orgánica del Poder Judicial (LOPJ) y el artículo 12 del Código Procesal Civil (CPC)”.

En este extremo de su gestión es que el artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial “no [fue] citado por la magistrada Garro Vargas”. Para esta Presidencia tal numeral está comprendido dentro de las normas a aplicar “en caso de impedimento, recusación o excusa” (artículo 6 de la Ley de la Jurisdicción Constitucional). Por lo anterior, no ha habido ninguna omisión por parte de la Presidencia al analizar los argumentos de la magistrada Garro Vargas y, por el contrario, fue una precisión hecha sobre las normas a aplicar.

VI.- Sobre los motivos adicionales de inhibitoria de la magistrada Garro Vargas y la interpretación del artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial (II.- b y c). La Magistrada Garro Vargas está en desacuerdo con la interpretación hecha por la Presidencia del artículo 29, inciso 2) de la Ley Orgánica del Poder Judicial. Considera que al utilizar el artículo “la” se trata de una determinada, concreta y específica “causal”, no en términos genéricos. En su caso, “hay una sumatoria de intereses que agravan mi situación personal”, que son las de su hermano y tía materna, ya mencionadas. Estima que si el motivo para su habilitación es que ahora es propietaria, “no cabría nunca la inhabilitación de un Magistrado propietario que tenga causales de inhibitoria distintas de las que tengan Magistrados suplentes y/o los propietarios y eso no parece razonable”.

La forma en que este Tribunal, y no solo la Presidencia como se verá, aplica el citado numeral no es compartida por la magistrada Garro Vargas. No obstante, no existen motivos que hagan reconsiderar o modificar la postura, reiterada a lo largo de los años, para el caso concreto de la magistrada Garro Vargas.

Son dos cuestiones, entrelazadas, a las que hay que referirse. Por un lado, los motivos de inhibitoria, que tiene la magistrada Garro Vargas; al igual que todos los magistrados, propietarios y suplentes, de este Tribunal tienen causal de separación y así lo han hecho ver en el expediente. Por otro lado, ante esta circunstancia, cómo debe integrarse el Tribunal.

La Ley de la Jurisdicción Constitucional dispone que:

“Artículo 4.- […]

La Sala Constitucional está formada por siete magistrados propietarios y doce suplentes, todos elegidos por la Asamblea Legislativa en la forma prevista por la Constitución. Su régimen orgánico y disciplinario es el que se establece en la presente y en la Ley Orgánica del Poder Judicial.

La Sala Constitucional no está sometida al plan de vacaciones establecido en la Ley Orgánica del Poder Judicial y, en consecuencia, fijará las fechas en que sus miembros tomarán vacaciones, de manera que haya siempre una mayoría de magistrados propietarios”.

“Artículo 7.- Le corresponde exclusivamente a la Sala Constitucional resolver sobre su propia competencia, así como conocer de las cuestiones incidentales que surjan ante ella y de las prejudiciales conexas”.

Por su parte, la Ley Orgánica del Poder Judicial establece, en lo que interesa, lo siguiente:

“Artículo 31.- A falta de regla expresa sobre impedimentos, excusas y recusaciones, se estará a lo dispuesto en el Código Procesal Civil, en cualquier materia, salvo en la jurisdicción constitucional la cual se regirá por sus propias normas y principios”.

“Artículo 29.- Cuando, por impedimento, recusación, excusa u otro motivo, un servidor tenga que separarse del conocimiento de un asunto determinado, su falta será suplida del modo siguiente:

[…]

2.- Los Magistrados, por los suplentes llamados al efecto. Los miembros de los tribunales colegiados se suplirán unos a otros y, en caso de que a todos o a la mayoría les cubra la causal, por sus suplentes. Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”.

De las normas transcritas se desprende que el legislador ordinario dispuso que los casos planteados ante este Tribunal fueran resueltos por los “magistrados propietarios” y sólo excepcionalmente por los magistrados suplentes. Los magistrados titulares, juez natural -artículo 35 de la Constitución Política-, son los llamados a sentar los precedentes y las líneas jurisprudenciales de este Tribunal que constituye una garantía de seguridad jurídica para el justiciable. Asimismo que el legislador ordinario otorgó a esta jurisdicción la competencia para resolver sobre las cuestiones incidentales, como es la integración del Tribunal, de acuerdo a sus propias normas y principios desarrollados por más de 30 años y que se verán a continuación. Finalmente que las normas procesales civiles, como el artículo 16 del Código Procesal Civil -infra Considerando VIII- son de aplicación supletoria en esta jurisdicción.

El artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial, como se explicó en la resolución cuya reconsideración solicita la magistrada Garro, es la solución que brinda nuestro ordenamiento jurídico cuando los magistrados titulares y suplentes no puedan conocer de un asunto determinado, en cuyo caso, en aplicación del principio del juez natural, serán los propietarios quienes conozcan. La aplicación de esta norma para los magistrados de la Sala Constitucional no es novedosa. Así, para citar solo algunas de ellas, por resoluciones de las 10:15 hrs. del 24 de marzo de 2005 -Expediente No. 04-011833-007-CO- y de las 13:14 hrs. del 3 de marzo de 2008 -Expediente No. 08-001177-0007-CO- la Presidencia de este Tribunal habilitó a uno o más magistrados titulares para conocer de esos procesos. Incluso, recientemente, la propia Sala, ya no la Presidencia, reafirmó esta postura:

“Según lo dispuesto en la resolución transcrita, así como lo establecido en el artículo 14 de la Ley de la Jurisdicción Constitucional y el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial -“Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos”-, corresponde a los magistrados propietarios el conocimiento de esos asuntos por imperativo de ley, sin que les alcance responsabilidad disciplinaria por esto. Lo anterior constituye, entonces, una causal de justificación normativa que libera de toda responsabilidad, incluida la penal, a los magistrados que conozcan de un asunto en el cual los magistrados suplentes, necesarios para integrar el Tribunal, tengan alguna causal de inhibitoria o impedimento para conocer del mismo asunto” (Sentencia No. 2019-010861 de las 9:20 hrs. del 14 de junio de 2019).

En estos casos excepcionales, como el presente en que todos los magistrados titulares y suplentes tienen causal de inhibitoria, el interés particular debe ceder ante el interés público en aras de la existencia de la jurisdicción constitucional. No pueden pesar causales “privilegiadas” o “motivos adicionales” cuando prácticamente todos los integrantes del Tribunal están inhibidos de conocer el caso y, por imperio de ley, le corresponde su conocimiento a los titulares.

Véase, por ejemplo el expediente No. 17-006076-0007-CO, en el que la magistrada Esquivel Rodríguez planteó tres inhibitorias, todas ellas por motivos distintos y objetivos, las cuales fueron rechazadas; o mi caso que formulé una segunda inhibitoria por motivos distintos y objetivos al igual que el magistrado Hernández Gutiérrez, y nos fuera rechazada.

Incluso, en este expediente, la magistrada Hernández López planteó, con posterioridad a su habilitación, una inhibitoria que fue resuelta en los siguientes términos:

“El “conflicto”, sin importar su grado, de todos los jueces constitucionales, titulares y suplentes, de esta Sala se plasmó en las inhibitorias que todos y cada uno formulamos. Si es un grado mayor o menor resulta totalmente irrelevante, desde el momento en que el tribunal para este caso quedó conformado -supra resultandos 4 y 5-, aplicando las disposiciones del numeral 29, inciso 2) de la Ley Orgánica del Poder Judicial, sin entrar en este tipo de valoraciones” (Resolución de las 9:42 hrs. del 10 de octubre de 2019).

En la resolución del 27 de abril de 2020, la Presidencia no desconoció la existencia de “motivos adicionales” de la magistrado Garro Vargas, como son el que su hermano y tía materna también tengan interés en esta acción. Sino que, la designación de la magistrada Garro Vargas como titular de este Tribunal es una condición objetiva que cede ante sus intereses personales. Nótese que la habilitación de la magistrada suplente Marta Esquivel Rodríguez, a quien también, en su momento, se le aceptó su inhibitoria, no fue antojadiza o porque ella tuviera menos causales de inhibitoria que el resto de magistrados suplentes, sino que lo fue por cuanto “actualmente integra la Sala Constitucional, en virtud de haber sido designada, por sorteo, para ocupar temporalmente, la plaza que se encuentra vacante en el Tribunal” (resolución de las 9:07 hrs. del 13 de febrero de 2019). Esa plaza, como ya se dijo es ocupada por la magistrada Garro Vargas por lo que, ante la gestión de la magistrada Marta Esquivel Rodríguez, al haber desaparecido la razón objetiva por la cual integraba, no su causal de inhibitoria, se aplicó lo dispuesto en el numeral 29, inciso 2), de la Ley Orgánica del Poder Judicial y se habilitó a la magistrada Garro Vargas.

VII.- Sobre la referencia al magistrado Araya García (II.-d). La magistrada Garro Vargas sostiene que su situación es distinta a la del magistrado Araya García, al tener dos causales de inhibitoria adicionales por lo que los casos no pueden asimilarse. La referencia que se hizo en la resolución del 27 de abril de 2020 a la situación del magistrado Jorge Araya García fue para ejemplificar el caso de un magistrado suplente inhibido que luego es nombrado titular y habilitado para conocer el caso; la misma condición objetiva de la magistrada Garro Vargas y, en ningún momento, para comparar o graduar los intereses personales o familiares de ambos en el caso. Situaciones que, como ya se dijo, ceden ante el interés público y la necesidad de conformar el Tribunal, por imperio de ley, con base en lo dispuesto en el artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial.

VIII.- Sobre las normas del Código Procesal Civil (III. b). Se recuerda que el artículo 4, párrafo 2°, de la Ley de la Jurisdicción Constitucional dispone que el régimen orgánico de este Tribunal es el establecido en ese cuerpo legislativo y la Ley Orgánica del Poder Judicial, en particular los artículos 31 y 29, inciso 2) y que las disposiciones civiles, como el numeral 16 del Código Procesal Civil son normas supletorias, complementarias, para esta jurisdicción. Nótese, además, como se ha insistido a lo largo de esta resolución, que la habilitación de la magistrada Garro Vargas fue producto de una condición objetiva como lo fue su designación como magistrada titular de esta Sala. Finalmente, sobre la notificación que echa de menos la magistrada Garro Vargas, ella no es parte en este proceso por lo que no suele notificarse a los magistrados las resoluciones que se dicte en este expediente; salvo cuando los magistrados han sido recusados y ellos han señalado medio para atender notificaciones. En todo caso, la falta de comunicación de la resolución sería un tema de su eficacia y no de su validez -artículos 140 y 334 de la Ley General de la Administración Pública-. No obstante, se procederá a comunicar la presente resolución a la magistrada Garro Vargas.

IX.- Conclusión. La reconsideración de la magistrada Garro Vargas, sea como un recurso formal o una gestión informal, contra la resolución del 27 de abril de 2020 es improcedente, de acuerdo al artículo 11 de la Ley de la Jurisdicción Constitucional y los precedentes de esta Sala. Tampoco procede la anulación de la mencionada resolución por cuanto no se aprecian errores graves en la misma ni en la apreciación de los hechos ni en la forma en que se constituyó el Tribunal para este caso: no hubo omisión en el análisis de los argumentos de la magistrada Garro Vargas; el nombramiento de la magistrada Garro Vargas como titular de este Tribunal es una condición objetiva que cede ante sus intereses personales, como lo ha dispuesto reiteradamente este Tribunal en el caso de otros magistrados; y esa condición objetiva hace necesario aplicar el artículo 29, inciso 2), de la Ley Orgánica del Poder Judicial; no así las normas supletorias del Código Procesal Civil.

Finalmente, en mi nota de la resolución No. 2020-015544, de las 12:10 del 20 de agosto de 2020, precisé lo siguiente:

“A.- LA JURISDICCIÓN CONSTITUCIONAL ES UNA JURISDICCIÓN ESPECIAL No hay duda de que la jurisdicción constitucional es diferente al resto de la jurisdicciones ordinarias. Ser el guardián de los principios de supremacía constitucional y del valor normativo de la Constitución y garantizar la tutela efectiva de los derechos fundamentales, le da una connotación singular. Sobre la misión de la Sala Constitucional, este Tribunal, en la sentencia n.° 76-92 de las 16:30 horas del 15 de enero de 1992, estableció, en lo que interesa, lo siguiente:

“I) La trascendencia que adquieren decisiones como las de este caso, y la incidencia que necesariamente tienen en la actuación de los órganos públicos del país, amerita que la Sala formule una breve reflexión, a manera de proemio, en relación con la misión que le ha sido encomendada, por virtud de la norma constitucional que la crea y la Ley de la Jurisdicción Constitucional en que fundamenta su quehacer. La labor del Tribunal Constitucional, como lo destaca la más calificada doctrina, es una defensa -dramática a veces- de los derechos humanos, y, en ocasiones el desarrollo y evolución de éstos hacia formas más claras y definidas”.

No hay que perder de vista que el diseño de la jurisdicción constitucional responde al objeto de las controversias jurídicas constitucionales que le corresponde conocer. Por un lado, tenemos los procesos constitucionales de defensa de la Constitución – acción de inconstitucionalidad, consulta de constitucionalidad, consulta judicial de constitucionalidad y conflictos de competencias constitucionales-, diseñados para aquellas controversias en las que se alega la violación de los principios constitucionales de la supremacía constitucional y el valor normativo de la Constitución, así como los derechos fundamentales, en este caso, al estar consagrados por la Carta Fundamental y los Instrumentos Internacionales de Derechos Humanos vigentes en la República, en cuyo caso están bajo la umbrela de los citados principios, además del principio de rigidez constitucional. Por el otro, los procesos constitucionales de garantías -habeas corpus, amparo, amparo contra particulares, amparo sobre el derecho de respuesta- cuando se invoca en la controversia jurídica una violación a los derechos fundamentales que están consagrados en la Constitución Política o en los Instrumentos Internacionales de Derechos Humanos vigentes en la República.

Sin ánimo de ser extensivo, la particularidad de esta jurisdicción está, entre otras cosas, en:

a.- Es una jurisdicción de única instancia.

b.- Es una jurisdicción en la que la jurisprudencia y los precedentes de la Sala Constitucional tiene efectos erga omnes, salvo para sí misma.

c.- En vista de los interés que están en juego, hay un impulso procesal de oficio, por lo que el principio dispositivo se ve severamente menguado; incluso en habeas corpus y en las acciones de inconstitucionalidad, no cabe el desistimiento (véanse, entre otros las sentencias números 687-91 y 511-93).

d.- Finalmente, este Tribunal ha considerado que la naturaleza de la acción es el de una denuncia, en la que no hay partes, dado los altísimos intereses que están en juego (véase la resolución 8:15 horas del 4 de noviembre del 2005). Lo anterior implica que, en tesis de principio, la aceptación de inhibitorias y recusaciones en la jurisdicción constitucional deber ser muy excepcional.

B.- LA INADMISIBILIDAD DE LA GESTIÓN DE NULIDAD El artículo 4, párrafo 2°, de la Ley de la Jurisdicción Constitucional dispone que el régimen orgánico de este Tribunal es el establecido en ese cuerpo legislativo y la Ley Orgánica del Poder Judicial. Este último texto normativo, en su artículo 31, reconoce la peculiaridad de la Jurisdicción Constitucional al estatuir que en materia de impedimentos, excusas y recusaciones “(…) se regirá por sus propias normas y principios”. Debe advertirse que uno de los principios del Derecho Procesal Constitucional (artículo 14 de la Ley de la Jurisdicción Constitucional) lo constituye el del juez natural (artículo 35 de la Constitución Política), de acuerdo con el cual, nadie puede ser juzgado por un tribunal ad hoc o especialmente nombrado para el caso “(…) sino exclusivamente por los tribunales establecidos de acuerdo con esta Constitución”. Por su parte, El artículo 14 de la Ley de la Jurisdicción Constitucional establece que la Sala Constitucional y su jurisdicción está sometida únicamente a la Constitución y a la Ley. A falta de disposición expresa, se aplicarán:

- los principios de Derecho Constitucional, así como los del Derecho Público y Procesal general o, en su caso, los del Derecho Internacional o Comunitario; - la Ley General de la Administración Pública, - El Código Procesal Contencioso-Administrativo.

- Y los Código Procesales.

En la Ley de la Jurisdicción Constitucional hay norma expresa, toda vez que el artículo 11, párrafo segundo y último, establece que no habrá recurso contra las sentencias, autos o providencias de la jurisdicción constitucional. Ergo, no es posible invocar la segunda oración del artículo 14. Ahora bien, revisando los antecedentes legislativo de la Ley de la Jurisdicción Constitucional encontramos el siguiente elemento de juicio que nos ayudan a resolver la cuestión en los términos y alcances de una correcta interpretación y aplicación del ordenamiento jurídico. Veamos lo que encontramos en el expediente legislativo n.° 10.273:

-TEXTO RECOMENDADO POR LA COMISIÓN NOMBRADA POR EL PODER EJECUTIVO decía lo siguiente:

“Artículo 4: Las sentencias y los autos con carácter de tales le corresponden dictarlas a la Sala en pleno, las demás le corresponden al Presidente o en su caso al Magistrado designado para la instrucción.

Contra las resoluciones que dicte la Sala en la tramitación y decisión del amparo, no cabrá recurso alguno, salvo la demanda de responsabilidad cuando corresponda. Tampoco cabrá contra las del presidente o el magistrado instructor, sin perjuicio de la potestad de la Sala para revocarlas o modificarlas en cualquier momento o al resolver el recurso.

Las sentencias que dicte la Sala solo podrán ser aclaradas o adicionadas a petición de parte si se solicitare dentro de tercero día”. (Folio 695).

-COMENTARIOS DE EDUARDO ORTIZ ORTIZ al citado texto:

“Art. 5 párrafo segundo. Este párrafo puede simplificarse y aclararse mucho con la siguiente redacción:

“Art. 5, párrafo segundo: “No habrá recursos contra las sentencias, autos o providencias de la jurisdicción constitucional.” Me parece muy inconveniente la potestad de la Sala Constitucional de revocar o modificar de oficio las resoluciones del Presidente o Magistrado Instructor. Es un principio de inestabilidad procesal que debe suprimirse.” (Folio 920).

Si bien es cierto que en los posteriores folios del citado expediente legislativo no encontramos ninguna discusión sobre el criterio externado por el profesor Ortiz Ortiz, es lo cierto que su comentario caló en los miembros de la comisión legislativa, prueba de ello es que se abandona la redacción originalmente propuesta por el Poder Ejecutivo, eliminándose la potestad del Pleno de la Sala Constitucional de revocar o modificar de oficio las resoluciones de su presidente o magistrado instructor. Como es bien sabido, el único caso donde se admite un recurso contra el presidente de la Sala Constitucional que se encuentra en la Ley de la Jurisdicción Constitucional, la tenemos en el artículo 80, en su segundo párrafo, cuando establece que si no se diere cumplimiento a lo ordenado, el presidente denegará el trámite de la acción. De esta última resolución podrá pedirle revocatoria dentro del tercero días, en cuyo caso el presidente elevará el asunto a conocimiento de la Sala Constitucional para que ésta decida lo que corresponda. En el expediente legislativo n.° 10.273, sobre el artículo 80, no suscito ninguna discusión.

Hay que tener presente que la gestión de la magistrada Garro Vargas no compagina con la naturaleza sumaria de los procesos constitucionales de garantía ni con la objetividad de los procesos constitucionales de defensa de la Constitución. Incluso si recurrimos al Código Procesal Civil, tenemos la norma que establece -artículo 17- que las resoluciones que se dicten con motivo de inhibitoria y recusación no tiene recurso alguno.

Finalmente, tampoco resulta procedente la gestión de nulidad incoada, pues los supuestos en los que la Sala ha admitido este tipo de gestión tienen dos requisitos necesarios: una errónea apreciación de los hechos y un perjuicio a causa del error para las partes. Tal y como se afirma en una de las resoluciones cuestionadas: a) ni siquiera las partes están facultadas para plantear reconsideración de una resolución que resolvió inhibitorias, como es lo aquí planteado; aunque sea de manera informal y no propiamente como un recurso; y b) que la Sala efectivamente puede, aún de oficio, anular una resolución o sentencia dictada por el Tribunal siempre y cuando contenga errores graves; situación que no se da en este caso. En el sub-lite se motiva la gestión de nulidad en una errónea interpretación y aplicación de la normativa, extremo muy diferente al establecido por este Tribunal. De admitirse esta tesitura, la consecuencia lógica y necesaria sería la paralización absoluta de la jurisdicción constitucional, por la elemental razón de que toda persona insatisfecha con una resolución de este Tribunal plantearía una gestión de nulidad invocando una errónea interpretación y aplicación de las normas jurídicas.

Así las cosas, por las razones que se dan en la resolución interlocutoria y estas que adiciono, concluyo que la gestión de la magistrada Garro Vargas es manifiestamente improcedente.

C.- SOBRE LOS ARGUMENTOS DE FONDO DE LA APELANTE Son dos los argumentos centrales que presenta la magistrada Garro Vargas contra las resoluciones de la Presidencia. Concretamente, que el órgano ya estaba integrado, de conformidad con el artículo 16 del Código Procesal Civil, que recoge el instituto procesal de la perpetuidad de la competencia subjetiva. El segundo, que hay una errónea interpretación y aplicación de las normas procesales en cuanto a las inhibitorias, lo que conlleva la nulidad de las resoluciones cuestionadas. Sobre ambos argumentos, es necesario tener claro que la jurisdicción constitucional es una jurisdicción especial y, por consiguiente, se rige por sus propias reglas en cuanto a inhibitorias y recusaciones. Así se desprende de la interpretación armónica de las normas que regula la materia. En efecto, tal y como se expuso supra, de los artículos 4, párrafo 2, 7, 14 de la Ley de la Jurisdicción Constitucional, así como el numeral 31 de la Ley Orgánica del Poder Judicial, por lo que las normas a aplicar son las de la jurisdicción especial, y no las otras jurisdicciones que están reguladas en la normativa del Rito y, cuando se tenga que aplicar esta última, lógicamente se tiene que hacer una exegesis o interpretación que satisfaga parámetros de lógica y de técnica jurídica. De importancia capital es el artículo 31 de la Ley Orgánica del Poder Judicial, que establece de forma clara y precisa que la jurisdicción constitucional tiene su peculiaridad, pues en materia de impedimentos, excusas y recusaciones “(…) se regirá por sus propias normas y principios”. (Las negritas no corresponden al original). Partiendo de esta idea, es claro que la normativa procesal se aplica, únicamente, en aquellos supuestos en los cuales no haya normas y principios en la jurisdicción constitucional, en los principios de Derecho Constitucional, así como los del Derecho Público y Procesal general o, en su caso, los del Derecho Internacional o Comunitario, la Ley General de la Administración Pública y el Código Procesal Contencioso-Administrativo. Ahora bien, al no regularse en la Ley de la Jurisdicción Constitucional el supuesto de hecho de cuando, tanto a los propietarios como a los suplentes tienen una causal de inhibitoria, ni tampoco en las otras fuentes normativas supletorias de conformidad con el numeral 14 de la Ley de la Jurisdicción Constitucional, tenemos que recurrir necesariamente al numeral 29, inciso b), de la Ley Orgánica del Poder Judicial; pero antes de todo, es importante traer a colación los antecedentes legislativos del artículo 31 de la Ley Orgánica del Poder Judicial. Revisando el expediente legislativo n. 10.753 que dio origen a la Ley n.° 7333, la que reformó de forma integral la Ley Orgánica, tenemos que la redacción actual no se incluyó en el dictamen que remitió la comisión respectiva al Plenario Legislativo; este lo devuelve nuevamente a la comisión dictaminadora para que tome en cuenta las observaciones de la Corte Suprema de Justicia. Es en el informe que remite la Corte Suprema de Justicia a la Asamblea Legislativa, que se propone la actual redacción y en la subcomisión de la Comisión Permanente Ordinaria de Gobierno y Administración que estudió el proyecto de ley a folio n.° 2673 aparece la intervención del magistrado Mora Mora, quien expresa lo siguiente en la sesión del citado órgano del 27 de mayo de 1992:

“El (sic) cuanto al artículo 31.- Lo que trae es una salvedad en cuanto a la Jurisdicción Constitucional que creo que está bien así.

El régimen de impedimentos, excusas y recusaciones de las jurisdicciones constitucionales siempre ha sido diferente, porque lo que se pretende es que los Magistrados nunca se vayan a escudar en un impedimento o de una excusa para dejar de resolver y más bien obligarlos de resolver y ser muy restrictivos en cuanto al (sic) asuntos de impedimentos y excusas o recusaciones.

Como la Constitución sirve de techo a todo el Sistema Jurídico de un determinado país, fácilmente siguiendo los sistemas tradicionales de impedimentos, excusas y recusaciones, los jueces constitucionales podrían no comprometerse resolviendo asuntos que le son llevados a ellos, y por eso es que se pretende que haya criterio restrictivos en cuanto a eso.

Esa salvedad que había sido dejada por fuera en la redacción original es salvada en este momento y me parece que resulta conveniente aceptar el criterio de la Corte en este caso”. (Las negritas no corresponden al original). Como fácilmente se infiere del texto de la norma y sus antecedentes legislativos, en la jurisdicción constitucional los Jueces constitucionales están llamados a resolver las cuestiones que se presentan, y el régimen de inhibitorias y excusas es excepcionalísimo. Revisando el origen de esta norma, nos dimos a la tarea de revisar las actas de la Corte Suprema de Justicia. En el acta 68-91 de la Corte Plena celebrada el 12 de noviembre de 1991 encontramos que fue el magistrado Piza Escalante quien pidió que se modificara el párrafo primero del artículo 31 de la Ley Orgánica del Poder Judicial. El artículo X dice textualmente:

“El Magistrado Piza hace uso de la palabra para proponer que se modifique el texto de párrafo primero del artículo 31 así:

‘A falta de regla expresa sobre impedimentos, excusas y recusaciones, se estará a lo dispuesto en el Código Procesal Civil, en cualquier materia, salvo en la Jurisdicción Constitucional, la cual se regirá por sus propias normas y principios’ Continúa en el uso de la palabra el Magistrado Piza para reiterar que con su propuesta se vuelve a la regla clásica de que en la Jurisdicción Constitucional no existen excusas ni recusaciones, porque lo que está en juego es la Ley, y así estaba antes en la Leyes de Amparo y de Hábeas Corpus y las disposiciones que regulaban el recurso de inconstitucionalidad, además de que sus reglas son distintas a las de las otras Jurisdicciones. Agrega el exponente que hace esas propuesta porque la Asamblea Legislativa no dejó en la Ley de la Jurisdicción Constitucional regla expresa, además de que por tratarse de una materia autónoma se acude a los principios generales de la propia materia; pues tiene tradición y doctrina propia, con reglas distintas a las demás.

El Magistrado Rodríguez hizo uso de la palabra para apoyar la propuesta del Magistrado Piza, pues no le parece que por los problemas que ha tenido la Sala se someta a las reglas de impedimentos, excusas y recusaciones previstas para las demás Jurisdicciones y como ejemplo citó algunos casos de alguna trascendencia nacional.

Se puso a votación la propuesta del Magistrado Piza, la se acogió en forma unánime, salvo el Magistrado Zamora que lo hizo de manera negativa por estimar que la situación está prevista en la norma que se pretende modificar”.

No hay duda de que la posición de la Corte Suprema de Justica caló en los señores diputados y, por consiguiente, reconocieron mediante Ley de la República la naturaleza especial de la Jurisdicción Constitucional, la que en materia de inhibitorias y recusaciones se sigue por sus propias reglas y principios.

En lo que atañe al primer agravio, es claro que la condición de la magistrada Garro Vargas cambió desde la resolución de su primera gestión de inhibitoria como suplente, dado que ahora es magistrada propietaria. Al igual que el caso del magistrado Araya García a quien siendo suplente se le había aceptado la inhibitoria y una vez nombrado propietario, se le habilitó para este caso. Es decir, hay una condición objetiva en ambos casos por los que se les habilita para integrar el Tribunal.

Al tener todos los magistrados de esta Sala, tanto titulares como suplentes, algún motivo de inhibitoria a efectos de conformar el Tribunal -la Ley no habla de la misma causa de inhibitoria-, no se valora cuál magistrado podría tener un motivo “privilegio” de separación, como sus parientes -hermano y tía materna-, sino las normas dispuestas en el ordenamiento jurídico para conformar el Tribunal como el 29, inciso 2) LOPJ. Sobre la ratio legis del artículo 29 de la LOPJ, en la sentencia n.° 2020-009188, la Sala Constitucional estableció, haciendo un análisis histórico, que la redacción actual del numeral 29 de la Ley Orgánica del Poder Judicial fue introducida mediante Ley n.° 7728 de 15 de diciembre de 1997, que es una Ley que se emite, según la expresión del magistrado González Álvarez para acoplar o hacer los ajustes necesarios para adecuar la estructura del Poder Judicial a los requerimientos del nuevo Código Procesal Penal (véase el folio 105 del expediente legislativo 12.992). En dicha reforma a la Ley Orgánica, en lo que interesa, se introduce la oración que resulta fundamental en la resolución de esta cuestión, cuando se afirma lo siguiente: “Cuando la causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, no obstante, la causal y sin responsabilidad disciplinaria respecto de ellos”. Antes de dicha reforma no existía esta regla. Ahora bien, revisando tanto el expediente legislativo supra citado, como las actas de la Corte Plena n.°s 3,4,5,6,8,10,11,13,15,18,20,21,24,25,29,30 y la 43 del año 1997, no encontramos ninguna explicación sobre los motivos para introducir esta norma al numeral 29 de la cita Ley Orgánica. Descartado el método histórico, lo que nos corresponde es hacer una interpretación de la normativa siguiendo otros métodos de interpretación, tales como el literal, el teleológico y el sistemático. Pero antes de analizar en detalle los artículos 29 y 32 de la Ley Orgánica del Poder Judicial, hay que tener presente lo que, con acierto, nos recuerda CABANELLAS “(…) de que no debemos distinguir donde la ley no distingue” o de aquel aforismo jurídico “(…) cuando la ley está concebida claramente hay que estar a su letra, y no desnaturalizarla, pretextando penetrar a su espíritu”. (CABANELLAS, Guillermo, Compendio de Derecho Laboral, Tomo I, Buenos Aires, Bibliográfica Omeba, 1968, pág. 234). La norma es categórica, en el sentido de que el magistrado no lo cabe responsabilidad disciplinaria alguna, es decir, quien habilita al magistrado no es la Presidencia, es la Ley y lo exime de toda responsabilidad. De la interpretación lógica de esta norma podemos extraer varias conclusiones necesarias sin necesidad de forzar el texto. En primer lugar, cuando una causal cubra a propietarios y suplentes, el caso deberá ser conocido por los propietarios, es decir, la norma excluye de forma tajante a los suplentes y ordena -nótese que se utiliza el verbo en imperativo deberá- que el asunto sea conocido por los propietarios. En segundo término, al haberse excluido por imperativo de Ley los suplentes, estos no pueden conformar el Tribunal en el tanto y cuanto haya propietarios suficientes y se esté en el supuesto del citado inciso del 29 de la Ley Orgánica del Poder Judicial, aun y cuando un propietario invoque posteriormente otra u otras causales de inhibitoria. Y, finalmente, el integrar a un suplente que fue excluido por ley cuando hay suficientes magistrados propietarios porque le asiste una causal que también la tiene los propietarios, sería ir en contra del texto legal y hacer una integración del Tribunal contraria al ordenamiento jurídico. A partir de esta argumentación resulta irrelevante en este último supuesto si al magistrado propietarios le asiste causales adicionales, ya que es jurídicamente imposible integrar a un suplente porque la Ley lo prohíbe; así lo ha interpretado la Presidencia de la Sala en distintos momentos históricos, tal y como se le hizo saber a la magistrada Garro Vargas en una de las resoluciones que ella impugna. Seguir una argumentación contraria a la que ha establecido la Presidencia de este Tribunal en su devenir histórico, conllevaría a una situación de parálisis y de vulneración de los derechos fundamentales de los justiciables, en especial a la tutela judicial efectiva. En efecto, si no es posible restituir a los suplentes y en el hipotético caso de que se le aceptara la inhibitoria a un magistrado propietario bajo el argumento de que tiene más motivos de inhibitoria, la consecuencia lógica sería que no existiría nunca un Tribunal integrado para resolver la controversia jurídica constitucional, con la consecuente violación del derecho fundamental, así como la paralización del Tribunal en un caso específico. Se nos dirá, en contra de lo que estamos afirmando, que los suplentes sí podrían resolver la cuestión cuando a un magistrado propietario le asisten causales adicionales. Empero, esta solución es contraria a la Ley, toda vez que cuando una causal cubre a propietarios y suplentes la norma legal es clara en el sentido que el asunto debe ser resuelto por los primeros, y nunca por los segundos. Se nos dirá, entonces, que lo que corresponde es aplicar el artículo 32 de la Ley Orgánica del Poder Judicial; empero, esta solución tiene dos objeciones insalvables. El supuesto de los faltantes de magistrados (as) -propietarios (as) y suplentes- los regula el numeral 32 de la Ley Orgánica del Poder Judicial, al disponer, en lo que interesa, lo siguiente:

“Artículo 32.- Las faltas temporales se llenarán del modo siguiente:

1.- Las del Presidente de la Corte, por el Vicepresidente o el Magistrado que la Corte designe; las de los presidentes de las Salas, por el Magistrado con mayor tiempo de servicio en el respectivo tribunal o, en igualdad de tiempo, por el de título más antiguo en el Catálogo del Colegio de Abogados. Esta última regla se aplicará en los Tribunales Superiores o en cualquier otro tribunal colegiado.

2.- Las de los demás Magistrados, por Magistrados suplentes, escogidos en sorteo por el Presidente de la Corte. Si el número de suplentes fuere insuficiente, se pedirá a la Asamblea Legislativa que, siguiendo el procedimiento para la selección de Magistrados suplentes, designe los que resulten necesarios para el caso...”.

Como puede observarse, el supuesto de hecho de la norma es cuando por algún motivo no hay magistrados (as) y, en el caso de que no haya suficientes suplentes, es que se debe pedir a la Asamblea Legislativa que, siguiendo el procedimiento para la selección de magistrados (as) suplentes, designe los que resulten necesarios para el caso. Piénsese en la situación que vivió la Sala Segunda de la Corte Suprema de Justicia en la que no había suplentes, toda vez que la Asamblea Legislativa no los había designado, tal y como impone el artículo 164 de la Carta Fundamental, y un magistrado propietario, por algún motivo justificado – verbigracia, una incapacidad por razones de salud-, es en estas circunstancias, que se debe aplicar el numeral 32 que estamos comentando. La razón es elemental, toda vez que los tribunales de justicia -las Salas de la Corte Suprema de Justicia- funcionan con un quorum estructural y funcional del total de sus miembros; a diferencias de otros Tribunales del mundo, por ejemplo: la Suprema Corte de los Estados Unidos de América o los Tribunales Constitucionales europeos en los que existe la figura del magistrado suplente o conjuez, empero funcionan con un quorum estructural y funcional no de todos sus miembros, sino uno inferior, en el caso de la Suprema Corte de los Estados Unidos con siete de sus nueve miembros (as) y en el caso del Tribunal Constitucional español con ocho de sus doce miembros (as). Fácilmente se puede concluir que esta norma no es posible aplicarla en el sub judice, toda vez que en el supuesto que estamos analizando sí hay magistrados (as) suplentes. Además, sería gravísimo que en la jurisdicción constitucional se permitiera la designación de un (a) o varios (as) magistrados (as) ad-hoc de la Asamblea Legislativa; más aún cuando lo que se cuestiona es una Ley de la República aprobada por ese órgano fundamental del Estado, lo que, evidentemente, vulneraría el principio de juez natural -artículo 35 de la Carta Fundamental- y el derecho a la tutela judicial efectiva, que además de que debe ser pronta y cumplida, también debe ser conforme al Derecho de la Constitución -valores, principios y normas-. De todo lo que llevamos dicho, la consecuencia lógica y necesaria es que sean los propietarios que voten las acciones de inconstitucionalidad acumuladas; de lo contrario, quedaría desintegrado sine die el Tribunal con el consecuente perjuicio para los accionantes.

Hay que tener presente también un elemento esencial de la jurisdicción constitucional, como lo es el hecho de que los precedentes y la jurisprudencia de la Sala Constitucional son vinculante erga omnes, salvo para sí misma, por lo que hay una clara tendencia en la normativa que la rige que sean los magistrados propietarios lo que definan y sienten sus grandes líneas jurisprudenciales. La razón es sencilla y elemental, es la única forma de garantizar que los precedentes y su jurisprudencia se mantendrán durante largo tiempo, lo que acorde con un principio fundamental del ordenamiento jurídico, como es el de la seguridad jurídica. Difícilmente se mantendrá en el tiempo una línea jurisprudencial o precedente si la regla de derecho la establece un Tribunal integrado por suplentes o uno donde el que define la cuestión es el suplente a causa del voto salvado de tres de sus integrantes propietarios.

En estos casos excepcionales, como el presente, en que todos los magistrados titulares y suplentes tienen una causal de inhibitoria, el interés particular debe ceder ante el interés público en aras de la estabilidad de la jurisdicción constitucional. No pueden pesar causales “privilegiadas” o “motivos adicionales” cuando prácticamente todos los integrantes del Tribunal están inhibidos de conocer el caso y, por imperio de Ley, les corresponde su conocimiento a los titulares. Por esto la aplicación del 29.2) Ley Orgánica del Poder Judicial. En pocas palabras, es irrelevante en el supuesto del artículo 29.2 si los motivos de inhibitoria o recusación son uno, dos o cincuenta. Es la Ley que impone como se integra el Tribunal, así lo ha entendido en distintos momentos la Presidencia de la Sala, y en una de la resoluciones cuestionadas se le citan antecedentes a la magistrada Garro Vargas.

LXXXIV.- 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:

Admisibilidad:

Por unanimidad, se rechazan de plano:

• a)los agravios de vicios de procedimientos referidos a la violación de la autonomía de los bancos del Estado y de la autonomía de la Caja Costarricense de Seguro Social por falta de legitimación.
• b)el análisis del agravio sobre la declaratoria de inconstitucionalidad por conexidad de la ley 9796 del 5 de diciembre de 2019, por ser motivo de análisis en la acción de inconstitucionalidad 20-007715-0007-CO.

En cuanto a la acción de inconstitucionalidad 19-1720-0007-CO, se rechazan de plano por falta de legitimación, de conformidad con el artículo 75 párrafo 1) de la Ley de la Jurisdicción Constitucional, los reclamos que buscan tutelar a la generalidad de servidores, funcionarios, pensionados y jubilados, en aquellos temas en los que la accionante no puede derivar una tutela o amparo de su derecho por no ser medio razonable para amparar su derecho.

Vicios de procedimiento legislativo:

Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declaran sin lugar las acciones acumuladas en cuanto a los alegados vicios de procedimiento. El magistrado Castillo Víquez da razones adicionales en cuanto a la violación del principio de publicidad. Las magistradas Hernández López y Garro Vargas ponen notas separadas. En cuanto al tema de los vicios alegados de la sesión de la Comisión Especial del 27 de julio de 2017, la magistrada Garro Vargas da razones diferentes.

Los magistrados Salazar Alvarado y Hernández Gutiérrez salvan el voto y declaran que la ley impugnada presenta el vicio esencial de procedimiento consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia, razón por la cual estiman innecesario entrar a analizar otros vicios de procedimiento y de fondo planteados por los accionantes; excepto aquellos en los que se requiera tomar posición para que exista voto de toda conformidad (artículo 60.2, Código Procesal Civil).

En cuanto a los agravios de fondo:

Se declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) se anula el porcentaje de cotizaciones y la contribución especial solidaria y redistributiva en cuanto excedan el 50% del monto bruto de la pensión que corresponde a la persona jubilada o pensionada. Sin embargo, de conformidad con el artículo 91 de la Ley de la Jurisdicción Constitucional, para evitar graves dislocaciones de la seguridad, la justicia, o la paz social, la Sala gradúa y dimensiona los efectos de esta resolución, de modo que, a partir del mes siguiente de la notificación de la sentencia, las autoridades competentes deberán realizar el ajuste correspondiente conforme a esta sentencia, de manera tal que las cargas tributarias que pesan sobre el monto de las jubilaciones y pensiones no exceda el 50% del monto bruto que recibe el jubilado o pensionado. El magistrado Castillo Víquez da razones diferentes. La magistrada Garro Vargas, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial. El magistrado Hernández Gutiérrez da razones adicionales. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran sin lugar este extremo, tal y como lo hicieron en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, por cuanto, según el texto expreso del artículo 67 del de la OIT C102 de 1952 Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas) se declara inconstitucional y en consecuencia se anula el párrafo contenido en el artículo 239 de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 impugnada, que dice: "Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen".

Tercero. Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se interpreta la frase "(...) la presente reforma no les será aplicada en su perjuicio", contenida en el Transitorio II de la Ley 9544 de 24 de abril de 2018, en el sentido de que se refiere exclusivamente a las personas que han consolidado el derecho a la jubilación o el derecho a la pensión.

Cuarto: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declara inconstitucional el requisito de los 20 años de servicio exigido para efectos de obtener la pensión por sobrevivencia que se deriva del artículo 229 de la Ley 9544 de 24 de abril de 2018, en cuyo caso se mantiene vigente el requisito de 10 años para adquirir ese derecho, según el artículo 230 de la Ley 7333 de 5 de mayo de 1993 en la versión anterior a la reforma.

Se declaran sin lugar las acciones de inconstitucionalidad acumuladas, y en consecuencia se dispone:

Primero: Por mayoría (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas y Hernández Gutiérrez) en cuanto a los alegatos relativos a la omisión de tomar en cuenta la diferenciación de género en la edad de jubilación entre mujeres y hombres, se declara sin lugar las acciones. Los magistrados Salazar Alvarado y Hernández Gutiérrez declaran sin lugar este extremo de la acción, únicamente por razones de forma ante la ausencia de estudios técnicos. La magistrada Garro Vargas da razones diferentes. El magistrado Rueda Leal y la magistrada Hernández López salvan el voto y declaran parcialmente con lugar las acciones acumuladas por la existencia de una omisión inconstitucional en la Ley 9544, al no contemplar criterios de género para fijar una edad diferenciada a fin de que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial se puedan jubilar o pensionar con un tiempo menor de servicio.

La magistrada Hernández López también salva el voto y declara con lugar parcialmente las acciones acumuladas por cuanto:

• a)considera que es contrario al Derecho de la Constitución excluir de los beneficios que otorgaba la Ley 7333 a las personas que, al momento de promulgarse la Ley 9544 aquí impugnada, contaban con 25 años o más de cotizar para el Fondo de Jubilaciones y Pensiones del Poder Judicial.
• b)por la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, debido a que el legislador no le da el mismo trato frente a la ley, a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen.

Segundo: Por mayoría (Castillo Víquez, Rueda Leal, Hernández López, Araya García y Garro Vargas), se declaran sin lugar las acciones acumuladas en todos los demás extremos reclamados.

Los magistrados Castillo Víquez y Rueda Leal y las magistradas Hernández López y Garro Vargas consignan notas separadas.

La declaratoria de las inconstitucionalidades, con excepción de lo indicado en el punto primero de los agravios de fondo de esta parte dispositiva -que rige partir del mes siguiente de la notificación de la sentencia- tienen efectos declarativos y retroactivos a la fecha de vigencia de la ley, todo sin perjuicio de los derechos adquiridos de buena fe y situaciones jurídicas consolidadas. Comuníquese a los Poderes Legislativo y Judicial y a la Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.

Fernando Castillo V.

Paul Rueda L.

Nancy Hernández L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

José Paulino Hernández G.

Razones adicionales del magistrado Castillo Víquez, en relación al principio de publicidad Además de las razones que se dan en la sentencia para llegar a la conclusión de que no hay vicios de procedimiento en relación con la no publicación del texto sustitutivo, considero que el Reglamento de la Asamblea Legislativa sólo exige la publicación del proyecto de ley, no de las mociones o textos sustitutivos que se aprueban en las diversas instancias parlamentarias (véanse los artículos 115 al 117, 121 y 130 del Reglamento de la Asamblea Legislativa). Más aún, sólo se publican los dictámenes del proyecto de ley si la comisión dictaminadora así lo acuerda (véanse los artículos 83 y 131 del Reglamento de la Asamblea Legislativa), lo que confirma que, salvo que así lo autorice una norma expresa del Estatuto Parlamentario, la aprobación de mociones ni de textos sustitutivos deben de publicarse en el diario oficial La Gaceta. Una razón adicional para seguir dentro de esta línea argumentativa es que, vistas las cosas desde otro prisma, resulta ociosa la publicación de los textos sustitutivos que se aprueban en el seno de los órganos parlamentarios, por la elemental razón de que ello sólo tendría sentido cuando se introduzcan conceptos o regulaciones novedosas en éstos, acción que prohíbe el Derecho de la Constitución – por violación al principio de conexidad-, o cuando así lo acuerde el órgano parlamentario con un fin específico o necesario para el trabajo parlamentario. Por otra parte, la Sala ha admitido que no siempre, la falta de publicación, en un determinado momento procesal, constituye un vicio invalidante del procedimiento legislativo. Al respecto indicó: “La Sala no estima que esta circunstancia lesione el principio de publicidad, típico del procedimiento legislativo: este principio, en primer lugar, no se satisface por un acto único, como, por ejemplo, la publicación de la proposición, sino que se realiza en las diferentes fases del procedimiento, y en la propia publicidad a que están sometidos los trabajos de los órganos legislativos. Además, observa el tribunal que ya admitida la proposición (en el caso sobre el que versa esta opinión), y rendido el dictamen de la Comisión a que se refiere el inciso 3) del artículo 195, éste se publicó, como se estilaba. Por consiguiente, arriba la Sala a la conclusión de que la falta de publicación de la proposición de reforma constitucional de que aquí se trata, no configura un vicio que invalide el procedimiento”. (Véase el voto n.° 11560-2001).

A mayor abundamiento, hay que tener presente que el principio de publicidad en el procedimiento parlamentario no se agota en la publicación del proyecto de ley, sino que va mucho más allá, toda vez que la Asamblea Legislativa, como órgano plural y democrático, en todas sus etapas, se encuentra sometida a él. Acorde con lo anterior, la Constitución Política, en su numeral 117, señala que las sesiones de la Asamblea Legislativa son públicas, salvo que por razones muy calificadas y de conveniencia general se acuerden que sean secretas por votación no menor de dos tercios de los diputados presentes. Esta publicidad del trabajo parlamentario no sólo está referido al derecho que tienen los habitantes de la República de asistir a las barras de la Asamblea Legislativa, las cuales sólo pueden ser despejadas por el presidente de la Asamblea Legislativa cuando por sus signos de aprobación o de improbación –gritos, silbidos, golpes o cualquier otra demostración desordenada- se interrumpa la labor de la Asamblea (véase el artículo 27, inciso 12 del Reglamento de la Asamblea Legislativa) -igual ocurre en el caso de las Comisiones Permanentes con Potestad Legislativa Plena, donde sus presidentes también cuentan con esta atribución (véase el artículo 56, inciso j del Reglamento de la Asamblea Legislativa)-, sino también al derecho que tienen los medios de comunicación colectiva de informar sobre el trabajo parlamentario por diversos canales –radio, televisión, Internet, prensa escrita, etc.-; e, incluso, el interés de los partidos políticos con representación parlamentaria y los (as) diputados (as) a que sus intervenciones –orales, escritas o de otra índole- se difundan por todos los medios, con lo que se cumple un doble propósito, por una parte, con el control ciudadano sobre la actividad que despliega los miembros del Parlamento, crucial en todo sistema democrático, y con la rendición de cuentas, en este caso de forma inmediata, de los diputados a la ciudadanía, por el otro. Así las cosas, el acto de publicación del proyecto de ley es una de tantas manifestaciones que tiene el principio de publicidad en el procedimiento parlamentario.

Por otra parte, al exigirse la publicación de los textos sustitutivos se atenta contra una de las características esenciales del Derecho parlamentario: su ductibilidad o flexibilidad, lo que incide negativamente en el trabajo parlamentario y, en algunos casos, puede llegar a abortar los acuerdos políticos que se concertan. E, incluso, va en contra de la finalidad del Derecho parlamentario. Como es bien sabido, la finalidad de este Derecho es permitirle al Parlamento ejercer sus atribuciones (legislativa, autonormativa, el control político, integrativa, jurisdiccional y administrativa), en especial: ser el cauce a través del cual la Asamblea Legislativa adopta en forma oportuna, democrática y soberana y en estricto apego del principio de pluralismo político, las decisiones políticas fundamentales, las que se traduce en los actos parlamentarios finales, sean éstos un decreto legislativo o un acuerdo legislativo. No debe perderse de vista que, por la dinámica parlamentaria, los acuerdos políticos en el seno del Parlamento gozan de una constante precariedad hasta tanto no se materialicen, no sólo porque hay un momento oportuno y específico para su concretización, sino a causa de la permanente tensión en que se encuentran los actores políticos debido a la gran cantidad de variables políticas que manejan en un mismo momento, lo que significa que, entre más prolongando sea el tiempo para concretizar el acuerdo político, mayores son las posibilidades de que se rompa. De ahí la necesidad de su ejecución oportuna y, en algunos casos inmediata, ya que la realidad política varía constantemente y puede dar al traste con lo pactado. Por tal motivo, cuando se le obliga a la Asamblea Legislativa, so pretexto de observar el principio de publicidad en el procedimiento parlamentario, la publicación de los textos sustitutivos o mociones en el diario oficial La Gaceta, lo que implica un atraso importante en la adopción de la decisión política dado el tiempo que se demora para ello, se atenta contra la naturaleza misma del órgano parlamentario y su dinámica, contra una de las características y finalidad del Derecho parlamentario, todo lo cual resulta un despropósito en un órgano esencialmente político –hay quienes sostienen que el funcionamiento de la Cámara es un reflejo de la continuación de la contienda electoral en un plano diferente-, como es la Asamblea Legislativa.

Fernando Castillo V.

Res. N° 2021011957 Nota del magistrado Rueda Leal. En el sub iudice, aclaro que, mención aparte de mi voto salvado, si bien comparto el criterio de la Mayoría en cuanto a desestimar los reclamos formulados por las partes accionantes, me parece fundamental exponer las siguientes precisiones particulares respecto de la motivación para arribar a tal conclusión.

1- Sobre la sentencia n.º 2018005758 de las 15:40 horas de 12 de abril de 2018 citada en el voto principal.

Esta resolución se cita de forma constante en el pronunciamiento principal de este proceso, de ahí que considero oportuno advertir lo que consigné en esa oportunidad:

“XXII.- Nota del Magistrado Rueda Leal. Concerniente a la publicidad del texto sustitutivo del 13 de setiembre de 2016, comulgo con el voto de mayoría, toda vez que conforme a reiterada jurisprudencia constitucional –que del todo estimo improcedente exceptuar (2017-019636, 2017-003262, 2016-018351, 2016-012413, 2015-001240, 2014-018836, 2012-013367, 2014-003969, 2013-013344, 2012-017705. 2012-015840, 2012-002675, 2011-015968, 2011-015655, 2011-014966, 2011-012611, 2011005274, 2011-005268, 2011-000992, 2011-000905, 2010-016202, 2010-012026, 2010-007630, 2000-010136, entre muchas otras sentencias)–, las consultas facultativas de constitucionalidad se restringen a analizar lo cuestionado por los consultantes de manera específica, sin que la Sala, en esta vía procesal, extienda el control de constitucional motu proprio a otros temas. Así, en lo atinente al reclamo planteado, el razonamiento esbozado en este pronunciamiento responde a la citada línea jurisprudencial y deviene correcto, por lo que lo suscribo.

Por otro lado, aclaro que el derecho a la pensión es un derecho subjetivo que se encuentra condicionado por la sostenibilidad del régimen de pensiones. El derecho a la pensión puede verse modificado o limitado ante motivos de interés público que estén sustentados en estudios técnicos, tales como la propia viabilidad del régimen o fondo, siempre y cuando tales modificaciones no afecten su contenido mínimo. En tal sentido, el Convenio 102 de la OIT debe ser examinado en su integralidad y conforme a los principios que lo informan, amén que no se pueden dejar de advertir las diferencias esenciales entre el momento histórico cuando aquel fue acordado (año 1952), con la coyuntura actual, en la que fenómenos como el importante aumento de la expectativa de vida y una menor tasa de natalidad, definitivamente deben ser considerados en aras de un régimen de pensiones basado en el principio de la solidaridad social y, repito, la sostenibilidad financiera. Así, de acuerdo con el Centro Centroamericano de Población de la UCR, la esperanza de vida al nacer en Costa Rica es de 59.61 años en el año 1952 (hombres 58.52 / mujeres 60.76), que pasa a 79.04 en el 2010 (hombres 76.49 / mujeres 81.71). Por su parte, la tasa global de fecundidad por mujer baja de 6.46 en el año 1952 a 1.83 en el 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html y http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html).En igual sentido, según el Banco Mundial, la expectativa de vida al nacer en Costa Rica es de 60.58 años en el año 1960 y alcanza 79.61 en el 2015, mientras que la tasa de fertilidad (nacimientos por cada mujer) en Costa Rica es de 6.5 hijos para el año 1960, y cae a 1.8 en el 2015 (ver https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR y https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR)”.

2.-Sobre la insostenibilidad del Régimen de Pensiones y Jubilaciones del Poder Judicial y la necesidad de reformarlo.

Al respecto, acoto que, ante el inminente problema de insolvencia del Régimen de Pensiones y Jubilaciones del Poder Judicial, el legislador se encontraba en la obligación de tomar las medidas necesarias para garantizar su sostenibilidad. Asimismo, es fundamental considerar que los principios de sostenibilidad y solidaridad social están ínsitos en todo régimen social de pensiones, por lo que deben ser ponderados al momento de valorar la constitucionalidad de las disposiciones que reformaron el régimen. En ese sentido, reitero mi voto salvado a la sentencia n.o 2018-19030 de las 17:15 horas de 14 de noviembre de 2018 (que también cité en mi voto salvado a la sentencia n.o 2020019274 de las 16:30 horas de 7 de octubre de 2020):

“Voto salvado del Magistrado Rueda Leal. Con el respeto acostumbrado, salvo el voto por tres temas concretos, según expreso de seguido.

(…)

En torno a la naturaleza de la pensión o jubilación manifesté lo siguiente en la sentencia n. 2018-5758 de las 15:40 horas del 12 de abril de 2018:

“…aclaro que el derecho a la pensión es un derecho subjetivo que se encuentra condicionado por la sostenibilidad del régimen de pensiones. El derecho a la pensión puede verse modificado o limitado ante motivos de interés público que estén sustentados en estudios técnicos, tales como la propia viabilidad del régimen o fondo, siempre y cuando tales modificaciones no afecten su contenido mínimo. En tal sentido, el Convenio 102 de la OIT debe ser examinado en su integralidad y conforme a los principios que lo informan, amén que no se pueden dejar de advertir las diferencias esenciales entre el momento histórico cuando aquel fue acordado (año 1952), con la coyuntura actual, en la que fenómenos como el importante aumento de la expectativa de vida y una menor tasa de natalidad, definitivamente deben ser considerados en aras de un régimen de pensiones basado en el principio de la solidaridad social y, repito, la sostenibilidad financiera. Así, de acuerdo con el Centro Centroamericano de Población de la UCR, la esperanza de vida al nacer en Costa Rica es de 59.61 años en el año 1952 (hombres 58.52 / mujeres 60.76), que pasa a 79.04 en el 2010 (hombres 76.49 / mujeres 81.71). Por su parte, la tasa global de fecundidad por mujer baja de 6.46 en el año 1952 a 1.83 en el 2010. (http://ccp.ucr.ac.cr/observa/CRindicadores/evida.html y http://ccp.ucr.ac.cr/observa/CRindicadores/tasas.html).En igual sentido, según el Banco Mundial, la expectativa de vida al nacer en Costa Rica es de 60.58 años en el año 1960 y alcanza 79.61 en el 2015, mientras que la tasa de fertilidad (nacimientos por cada mujer) en Costa Rica es de 6.5 hijos para el año 1960, y cae a 1.8 en el 2015 (ver https://datos.bancomundial.org/indicador/SP.DYN.TFRT.IN?locations=CR y https://datos.bancomundial.org/indicador/SP.DYN.LE00.IN?locations=CR).” La naturaleza jurídica de este tipo de jubilación o pensión –que no es de capitalización individual- se deriva del principio de solidaridad social, íntimamente vinculado con la vocación social del Estado costarricense. La base normativa de tal aseveración se encuentra en la Constitución Política:

“ARTÍCULO 50.- El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza. (…)

ARTÍCULO 74.- Los derechos y beneficios a que este Capítulo se refiere son irrenunciables. Su enumeración no excluye otros que se deriven del principio cristiano de justicia social y que indique la ley; serán aplicables por igual a todos los factores concurrentes al proceso de producción, y reglamentados en una legislación social y de trabajo, a fin de procurar una política permanente de solidaridad nacional.” Tal como se dijo, esta normativa constitucional ha sido desarrollada por la Sala con el fin de delinear el principio de solidaridad. Un buen ejemplo de ese desarrollo es el siguiente:

“III.- Sobre el principio de solidaridad. Una adecuada lectura de nuestro texto constitucional acarrea necesariamente la conclusión de que el sistema de derechos fundamentales en él establecido no se encuentra basado en el individualismo utilitarista, sino más bien en una concepción del hombre en el marco de la sociedad en la que se desenvuelve. La Constitución Política de 1.949 parte de la noción de que el ser humano no puede desarrollarse integralmente por sí solo, sino que para ello requiere de la participación de todos los otros miembros de la sociedad. De hecho, expresamente el numeral 50 constitucional impone como uno de los deberes fundamentales del Estado costarricense la búsqueda de una adecuada distribución de la riqueza, objetivo que no puede lograr sin el concurso de sus habitantes. En otras palabras, para lograr una más homogénea estratificación social, los individuos deben contribuir de acuerdo con sus posibilidades, en beneficio de quienes menos poseen. Lo anterior es un derecho fundamental de las personas que ocupan los estratos inferiores, y un deber de todos, principalmente los más beneficiados por el sistema económico. La riqueza en una sociedad no es producida apenas por quienes poseen los medios de producción, sino también por quienes contribuyen a ella con su mano de obra, con su trabajo. En consecuencia, los beneficios producidos por el mercado deben ser redireccionados a fin de que no rediten únicamente en favor de ciertas clases sociales. Relacionado este principio con el de justicia social, positivizado en el ordinal 74 de la Constitución, según el cual las personas deben colaborar recíprocamente en aras de preservar la dignidad humana de todos los miembros de la comunidad, tenemos que el constituyente buscó fomentar una sociedad donde la solidaridad fuera la regla general de convivencia; donde la realización de pequeños sacrificios en favor de grandes metas sociales estuviera por encima de los intereses individuales; es lo que normalmente se conoce como Estado social y democrático de Derecho. Podría así afirmarse que la solidaridad entre los miembros de la colectividad es un principio de rango constitucional, que legitimaría válidamente la imposición de ciertas cargas en favor de una justa redistribución de la riqueza. (Ver en este mismo sentido las sentencias de esta Sala números 1441-92, 5125-93)” (Sentencia n.° 3338-99 de las 18:45 horas del 5 de mayo de 1999).

A partir de estas premisas considero que el análisis de la acción de inconstitucionalidad debe efectuarse desde otra perspectiva, diferente a la acogida por el voto de mayoría. Efectivamente, verifico que la sentencia valoró solo de manera parcial los elementos jurídicos relevantes para la decisión, toda vez que únicamente se concentró en el reproche de la parte accionante, relacionado con el principio de irretroactividad, sin hacer mayor reflexión sobre los elementos necesarios para que un régimen de pensiones sea sostenible y conforme al principio de solidaridad social. En mi criterio debe efectuarse un análisis integral y comprehensivo de la cuestión jurídica planteada, a fin de evitar una extensión inadecuada de los principios constitucionales, como sucedió en este caso con el principio de irretroactividad. En otras palabras, la Sala debió primero analizar la naturaleza de un régimen de pensiones y luego examinar el tema del principio de irretroactividad.

En el sub examine, considero que un régimen de pensiones solo sería constitucionalmente válido en el tanto fuera sostenible y respetara el principio de solidaridad social. En otras palabras, si el legislador concibiera un régimen insostenible, sin algún tipo de previsión para mantener su equilibrio presupuestario, o abiertamente regresivo, entonces tal régimen sería inconstitucional específicamente en cuanto a tal omisión por incumplir los postulados indicados.

De lo anterior derivo que el principio de solidaridad social y el de sostenibilidad del régimen están ínsitos en todo régimen social de pensiones desde el momento de su creación y deben ser tomados en cuenta al interpretar el articulado de tales regímenes, toda vez que constituyen herramientas que lo hacen viable a largo plazo y posibilitan el cumplimiento del Estado Social de Derecho.

La necesidad de que el régimen sea sostenible no es un elemento disponible para el legislador, sino un requisito impuesto también por la realidad material. Tal realidad no pudo ser negada ni siquiera en el voto de mayoría, el cual tuvo que ceder ante la hipótesis de que un régimen de pensiones colapse:

“Para este Tribunal, sólo en un caso extraordinario –una debacle financiera del Estado o del respectivo régimen de jubilaciones y pensiones-, debidamente comprobada –técnica del control de los hechos determinantes-, sería posible modificar las condiciones originales en las que fue otorgada la jubilación o la pensión, escenario que no se está en el presente caso a pesar de la crisis fiscal por la cual atraviesa el gobierno central –déficit fiscal superior a un 3% del P.I.B. y que podría llegar a un 7% -, toda vez que si se adoptan las medidas adecuadas y efectivas para reducir el citado déficit en el corto plazo, es posible cumplir con el principio constitucional del equilibrio financiero consagrado en el numeral 176 constitucional.” En otras palabras, el criterio de mayoría sí aceptaría legislación contraria al principio de irretroactividad en caso de “debacle”. Considero innecesaria tal contradicción porque parto de que la sostenibilidad es un principio inherente a todo régimen solidario de pensiones y obliga a sus participantes –todos ellos- a contribuir en su mantenimiento. Efectivamente, la sostenibilidad del régimen permea la naturaleza jurídica de las pensiones y jubilaciones ligadas a él. El caso hipotético planteado por la mayoría de esta Sala ejemplifica claramente tal ligamen. La satisfacción de la pensión o jubilación se encuentra condicionada por la sostenibilidad del régimen de pensiones. Si el régimen deviene insolvente, como en el caso de la “debacle”, entonces todos los participantes en él verán frustradas sus pretensiones. De ahí que sea factible –incluso necesario- modificar las condiciones de todas pensiones o jubilaciones, siempre y cuando las modificaciones tengan por finalidad proteger la sostenibilidad del régimen y respeten el principio de razonabilidad y proporcionalidad. El acatamiento de este último garantiza, por ejemplo, que tales derechos no serán vaciados de contenido por una reforma posterior.

(…)

Finalizo este argumento acotando que el artículo 34 constitucional sí protege los derechos patrimoniales que ya han sido recibidos por los beneficiarios de un régimen. En ese sentido, no podría promulgarse legislación nueva para pretender la repetición de lo que fue pagado de manera justa con base en la legislación derogada”.

3.- Acerca del considerando XV.

En relación con el vicio de que no se suspendió el trámite del proyecto por el plazo de ocho días hábiles según el procedimiento especial, advierto que ciertamente suscribí la sentencia n.º 2012004621 de las 16:00 horas del 10 de abril de 2012, en la que se resaltó “El deber de las diversas instancias legislativas de ceñirse, celosa y escrupulosamente, al procedimiento especial previamente diseñado (…) Consecuentemente, ante un procedimiento legislativo especial y rápido, los plazos, etapas y requisitos previamente establecidos deben ser objeto de una interpretación restrictiva y rigurosa, siendo que el margen de flexibilidad admisible frente a los procedimientos ordinarios, a través de interpretaciones extensivas, decrece notablemente para evitar una excepción de la excepción y, en general, un apartamiento del iter creado, excepcionalmente, por una mayoría agravada.” (Destacado no corresponde al original). Justamente, el hecho de que el margen referido decrezca de modo notable no significa que del todo no haya margen. Ahora, en el sub lite, de acuerdo con el razonamiento del voto de mayoría no se está ante un vicio de tal magnitud como para sustentar una falta de relevancia constitucional, con lo que coincido, toda vez que, reitero, incluso en los procedimientos especiales en cuestión, aunque con menor espacio, el control de constitucionalidad siempre posibilita una distinción entre vicios sustanciales y los que no lo son.

4.- Con respecto a los considerandos XLV, XLVI y XLVII.

En cuanto a la naturaleza de la contribución especial, solidaria y redistributiva, la redacción final del voto de mayoría cita jurisprudencia, según la cual aquella no es asimilable al tributo, y concluye que es una limitación constitucionalmente válida al derecho a la jubilación, surgida del carácter social de ese derecho. Luego menciona que no es un impuesto, sino una carga parafiscal. También indica que, como aportación a la seguridad social, es una contribución parafiscal impuesta por el Estado en ejercicio de la potestad de imperio, que solo se puede crear a través de una ley formal. De igual forma señala que es un tributo destinado a una finalidad económica y social.

Al respecto, debo mencionar que, a los efectos de esta acción de inconstitucionalidad, mi posición es que la contribución especial, solidaria y redistributiva es de naturaleza parafiscal y configura un tipo de tributo. Precisamente, es de pago obligatorio para quienes se encuentren en el supuesto de la norma y, de acuerdo con el numeral 236 bis de la Ley Orgánica del Poder Judicial, los recursos que se obtengan de esta ingresan al Fondo de Jubilaciones y Pensiones del Poder Judicial, es decir, al mismo fondo al que pertenecen los contribuyentes. Además, este tipo de contribución debe ser habilitada legalmente, por lo que la Asamblea Legislativa es competente para estatuir el tributo y definir sus elementos.

Por otra parte, si bien se acusa que hay doble imposición con la cotización general y la contribución especial, solidaria y redistributiva, clarifico que esta última grava de modo progresivo solo las pensiones y jubilaciones más altas, con lo que se pretende dar sostenibilidad al régimen al que pertenecen. En ese sentido, considero que a priori no se trata de una doble imposición, sino del establecimiento de una carga tributaria adicional a quienes ostentan mayor capacidad económica. Si bien ambas figuras forman parte de los ingresos del Fondo de Jubilaciones y Pensiones del Poder Judicial, no menos cierto es que se basan en supuestos distintos: por un lado, está el aporte general del pensionado o jubilado al régimen y, por otro, la contribución que deben pagar quienes tienen las pensiones más altas. En ese sentido, el numeral 71.1 del convenio C102 de la OIT -Convenio sobre la Seguridad Social (norma mínima)- estatuye, que el costo de las prestaciones concedidas en aplicación de ese convenio y los gastos de administración de estas “deberán ser financiados colectivamente por medio de cotizaciones o de impuestos, o por ambos medios a la vez, en forma que evite que las personas de recursos económicos modestos tengan que soportar una carga demasiado onerosa y que tenga en cuenta la situación económica del Miembro y la de las categorías de personas protegidas”. En otras palabras, ese instrumento internacional posibilita la financiación del régimen por dos medios a la vez, a fin de que no se cargue a las personas de ingresos más bajos con cargas demasiado onerosas. Ergo, resulta procedente, amén del aporte general de las personas trabajadoras y pensionadas, imponer una carga tributaria parafiscal destinada a gravar únicamente las pensiones y jubilaciones más altas que fueron otorgadas a la luz de condiciones previas mucho más beneficiosas.

En adición, debo aclarar que, a los efectos de variar las condiciones de un régimen de pensiones y asignar contribuciones especiales para corregir alguna situación de insolvencia, sí resulta necesario demostrar mediante estudios técnicos la insolvencia de este y la idoneidad de las medidas correctivas. Lo anterior es imprescindible, salvo que se trate de beneficios dispuestos en normas absoluta y manifiestamente inconstitucionales, en cuyo caso la magnitud del vicio amerita la supresión de la disposición sin reconocer derechos. En este sentido, no se pueden perpetuar disposiciones legales palmariamente antijurídicas desde su base, verbigracia, como una pensión vitalicia a los hijos y las hijas de personas legisladoras o recibir beneficios absurdos y exorbitantes. En estos últimos supuestos, he afirmado que sus efectos deberían tenerse justamente como inexistentes para el ordenamiento desde el propio momento de su creación. Sobre este tema, di razones diferentes en la sentencia n.º 2020019274 de las 16:30 horas de 7 de octubre de 2020, en estos términos:

“V.- Razones diferentes en cuanto a los reclamos de fondo relacionados con las leyes n.os 9381 y 9388. Previo a conocer los alegatos de fondo, es importante tener claro que estas normas lo que hacen es eliminar el aumento del 30% anual que venían gozando un grupo restringido de personas pensionadas, y lo cambian por uno basado en el aumento del costo de la vida. Precisamente, el quid del asunto consiste en definir si tal reforma es conforme al Derecho de la Constitución.

En primer lugar, estimo que el aumento del 30% anual de que gozaban algunas personas del régimen conocido como Hacienda-Diputados, por sí mismo significa un abuso grosero e imposible de justificar, una lesión al orden constitucional de tan abrumadora magnitud, que desde su propia génesis configura lo que denomino “una norma jurídica inexistente” por razones de inconstitucionalidad, en aplicación mutatis mutandi de la doctrina del acto jurídico inexistente por cuestiones de legalidad, tesitura sostenida por un sector relevante de la ciencia jurídica.

Como acaece en el sub examine, merced a la particular gravedad de la violación al orden constitucional en cuanto al privilegio especialmente desbordado que se le ha conferido a un determinado grupo (nada menos que un aumento anual del 30% en las pensiones sin consideración alguna al estado de la economía y el valor real de la pensión conferida), considero que no se está ante la mera nulidad de una normativa a causa de una declaratoria jurisdiccional común de inconstitucionalidad, sino que, en esta situación extraordinaria, el restablecimiento del orden constitucional demanda una acción mucho más drástica que la simple nulidad. La inexistencia designa una inconstitucionalidad profundamente grosera de la norma impugnada (incluso, en otro proceso podría estar referido a un acto), un grado extremo de nulidad por motivos de inconstitucionalidad a partir del cual se advierte la ausencia de un elemento esencial en el momento propio del surgimiento de la norma objeto de la acción.

Justamente, debido a ese vicio extremo en la génesis propia de la norma, resulta improcedente preservar los efectos derivados de las disposiciones legales manifiestamente inconstitucionales, irrazonables y carentes de justificación alguna, como los favorecimientos económicos otorgados contra los elementos más básicos de la justicia social y la sostenibilidad de un régimen de pensiones. Se trata de disposiciones palmariamente inconstitucionales en su base, merced a lo cual los privilegios desmedidos por ellas otorgados deben tenerse como jurídicamente inexistentes.

Lo anterior se torna aún más evidente y notorio ante la cruda realidad económica del país y las condiciones de los demás regímenes. De ahí que una reforma legal que cambie ese método fijo de revalorización por uno sustentado en criterios objetivos, como el aumento del costo de la vida, no solo enmienda un privilegio desbordado y definitivamente inconstitucional por violación al principio del sano manejo de los fondos públicos, sino que, además, contribuye a la justicia social.

Siguiendo la misma línea de mi voto salvado en la sentencia n. o 2018-19030 de las 17:15 horas de 14 de noviembre de 2018 (el cual cité supra) y los razonamientos que desarrollé líneas arriba en cuanto al principio de irretroactividad, considero que la sostenibilidad es un principio inherente a todo régimen solidario de pensiones. De ahí que estimo constitucionalmente válido, conforme al principio de solidaridad social, que se impongan cargas y se modifiquen las condiciones de las pensiones o jubilaciones más altas, siempre y cuando los ajustes tengan como finalidad resguardar la sostenibilidad del régimen de pensiones y, en adición, se respeten tanto el principio de razonabilidad y proporcionalidad, como el derecho fundamental a la dignidad humana de las personas adultas mayores. Nótese que, como tesis de principio, es válido que, a través de un mecanismo de aumento de pensión o jubilación, la pensión de la persona beneficiada mantenga su valor en términos reales en relación con el poder adquisitivo y las vicisitudes con el paso del tiempo, mas no que la pensión o su metodología de incremento sirvan de instrumento para enriquecer de forma injustificada y antojadiza a unas pocas personas.

En el sub lite, no puede ser irrazonable ni desproporcionado que se elimine un privilegio grotesco y desmedido como lo fue el aumento al 30% anual. Por el contrario, lo que resulta del todo irrazonable y desproporcionado es resguardar un incremento de tal magnitud para un grupo restringido de personas. Es importante subrayar que, concerniente a los montos de las pensiones, tal y como lo indiqué en el considerando anterior, el legislador, por medio de otras normas, fijó mínimos exentos de las contribuciones especiales y una escala gradual de afectación progresiva, lo que, desde mi perspectiva, garantiza montos más que dignos a las personas adultas mayores, máxime en los casos de quienes se beneficiaron con aumentos anuales del 30% a lo largo del tiempo y tienen las pensiones más altas. En ese sentido, si las leyes que modifican las situaciones jurídicas de los beneficiarios salvaguardan la dignidad de la persona al tiempo que son proporcionales, razonables y justificadas, resulta insostenible una pretendida inmutabilidad del ordenamiento acudiendo a situaciones jurídicas consolidadas, pues estas deben ceder ante los principios de la solidaridad social y de sano manejo de los fondos públicos. A partir de lo anterior, el legislador tiene libertad para regular los mecanismos de reajuste de las pensiones de los regímenes que se encuentren en crisis de sostenibilidad u otorgan privilegios abiertamente desproporcionados y grotescos”.

Asimismo, debo precisar que, tal y como lo consigné en mi voto salvado al considerando XLI de este pronunciamiento, el 50% acotado por la Mayoría como límite máximo de contribuciones y deducciones se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica a las reducciones de las pensiones.

En este sentido, el ordinal 71.2 regula:

“2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una rama especial”.

Por su parte, el ordinal 67 del convenio estatuye:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 En consecuencia, como se puede observar de la lectura de los numerales citados, en la redacción que finalmente hace la Mayoría se le cambia de manera innecesaria el sentido jurídico-normativo al numeral 71.2 para adecuarlo al caso concreto y fijar un porcentaje máximo del 50%, obviando así la existencia del ordinal 67 del instrumento internacional que puntualmente regula lo atinente a las limitaciones que se les pueden imponer a las pensiones. En adición, nótese que el artículo 71.2 está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección; es decir, tal norma regula a los “asalariados” (población económicamente activa), pero no a los “pensionados o jubilados”.

Partiendo de lo anterior, de forma consecuente con la línea que he venido sosteniendo, no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial excedan automáticamente la barrera del 40% de un salario de referencia, contemplada en el ordinal 67 del convenio C102 de la OIT. Obsérvese, además, que el límite del 55%, fijado en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial está relacionado con el monto bruto de la pensión, mientras que el 40% convencional con un salario de referencia, por lo que es en el ámbito de la aplicación de la norma legal, donde se debe valorar si, en algún asunto concreto, la barrera contenida en el instrumento internacional se superpone al parámetro previsto en la legislación.

Con base en lo anterior, disiento de la afirmación de la versión final del de Mayoría en cuanto a que la contribución solo resulta confiscatoria en tanto exceda el 50% de las cargas que debe soportar una persona sobre su pensión o jubilación, pues, tal y como lo indiqué supra, estimo que el parámetro es otro y no consta su transgresión automática y evidente con el contenido de los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial.

5.-En cuanto a los considerandos L y LI.

En estos considerandos se asevera que las cotizaciones y contribuciones no pueden exceder el 50% del monto bruto de la pensión en concordancia con lo dispuesto en la sentencia n.º 2020-19274; sin embargo, atinente a este punto reitero mi tesitura de que el tope del 55% regulado en los ordinales 236 y 236 bis de la Ley Orgánica del Poder Judicial no es inconstitucional per se. Ahí, también abordé la posibilidad de imponer, amén de la contribución obligatoria al régimen, una contribución especial adicional a las pensiones más altas. Por consiguiente, remito a los razonamientos consignados en el apartado anterior en lo relativo a estos temas.

Ahora, es importante mencionar que la ley n.º 9544, al adicionar el artículo 236 bis, consignó que la contribución especial aplicaba sobre el exceso de la suma de diez salarios base del puesto más bajo pagado en el Poder Judicial (al momento de entrada en vigencia de esa ley, sobre las pensiones de más de ¢4.138.000,00 según el índice salarial, ver https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial). Sin embargo, no está de más aclarar que el inciso a) de esta norma posteriormente fue reformado por la ley n.º 9796 de 5 de diciembre de 2019 y fijó la contribución a partir del exceso de la suma seis salarios base del puesto más bajo pagado en el Poder Judicial (al primer semestre de 2021, sobre las pensiones de más de ¢ 2.602.800,00 según el índice salarial https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).

En adición, la ley n.º 9544 reguló la aplicación de la contribución especial de forma escalonada: “a) Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso. b) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso. c) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso. d) Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso. e) Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%)”.

De ahí que el monto exento y la contribución escalonada fijada a pensiones de más de cuatro millones de colones garantizan sumas más que dignas para la satisfacción de las necesidades de las personas pensionadas y jubiladas, incluso las adultas mayores. Asimismo, considero que la contribución especial es progresiva y gradual a las pensiones más altas, sin que esta, aunada a las demás contribuciones, cargas y deducciones, puedan exceder el 55% de la totalidad del monto bruto de la pensión. En ese sentido, no solo no se demostró que el monto de la pensión impidiera a las personas pensionadas vivir dignamente o que fuera insuficiente, sino que, otrosí, corresponde al ámbito de la aplicación de la norma legal valorar si, en algún asunto concreto, la barrera contemplada en el instrumento internacional (numeral 67 del convenio C102 de la OIT) se superpone al parámetro fijado en la legislación.

Igualmente reitero que la contribución especial impuesta a las pensiones más altas constituye una medida acorde al principio de solidaridad social y, además, es razonable ante el inminente problema de insolvencia que presentaba el Régimen de Pensiones y Jubilaciones del Poder Judicial.

Por último, no estimo que la deducción de un cinco por mil (5 por 1000) de los salarios y pensiones destinados a financiar el funcionamiento de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial sea abiertamente desproporcionada o irrazonable. De la misma manera, si alguna de las partes considera que excede el máximo de cotizaciones, contribuciones y deducciones podrá formular los reclamos correspondientes a los efectos de que estos se ajusten.

6.- En lo relativo al considerando LIV.

Sobre este considerando, debo subrayar que el numeral 34 constitucional recoge el principio de irretroactividad y la protección de los derechos adquiridos y las situaciones jurídicas consolidadas:

“ARTÍCULO 34.- A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas”.

En relación con lo regulado en este ordinal, la Sala señaló en la sentencia n.° 2765-97 de las 15:03 del 20 de mayo de 1997, “Los conceptos de “derechos adquiridos” y “situaciones jurídicas consolidadas” aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o beneficio constatable. Por su parte, la “situación jurídica consolidada” representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo “si…, entonces…M, vale decir: si se ha dado el hecho condicionante, entonces la “situación jurídica consolidada” implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege –tornándola intangible – la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

Al respecto, me parece importante precisar que las sumas recibidas antes de la entrada en vigor de la ley n.º 9544 sí constituyen derechos adquiridos y, de hecho, las normas cuestionadas no los afectan pues ya ingresaron a la esfera jurídica patrimonial de las personas pensionadas. No obstante, es improcedente sostener que las pensiones que han recibido configuren un derecho adquirido para recibir el mismo monto en los meses futuros, ya que no son circunstancias consumadas y, evidentemente, aún no han ingresado a la esfera patrimonial de la persona.

Ahora, en cuanto a la alegada transgresión a las situaciones jurídicas consolidadas, si bien, como tesis de principio, se deben respetar las condiciones en las que se pensionaron o jubilaron las personas, esto no significa que a las prestaciones más altas no se les puedan imponer cargas tributarias progresivas destinadas a corregir alguna situación de insolvencia del régimen y así contribuir con su sostenibilidad. De igual modo, el cambio de las condiciones para optar por la jubilación a las personas funcionarias que se encuentran activas tampoco resulta ilegítimo, porque ellas tan solo tienen una expectativa de pensión o jubilación, salvo cuando se hallen próximos a adquirir el derecho (dentro de los 18 meses siguientes, según lo ha avalado la jurisprudencia de la Sala y se indica en el considerando LXIX de esta sentencia).

7.- En cuanto a los considerandos LV, LVI, LVII y LVIII.

En estos considerandos se abordan los alegatos de las partes accionantes en tanto acusan que la aplicación de las normas 236 y 236 bis de la Ley Orgánica del Poder Judicial a los adultos mayores jubilados y beneficiarios del Régimen de Jubilaciones y Pensiones del Poder Judicial resulta abusiva y arbitraria, puesto que agrava sus condiciones socioeconómicas y ha implicado una disminución abrupta de sus ingresos, lo que que lesiona normativa nacional e internacional referida a la protección de adultos mayores, a su derecho a la calidad de vida y a disfrutar de una vejez digna.

Atinente a estos extremos, remito a las consideraciones desarrolladas por mi persona en los puntos anteriores relativos a las contribuciones generales y especiales, así como a las demás cargas. Reitero, que el 50% acotado por la Mayoría como límite máximo de contribuciones y deducciones se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica a las reducciones de las pensiones. En ese sentido, no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial excedan automáticamente la barrera del 40% de un salario de referencia, contemplada en el ordinal 67 del convenio C102 de la OIT. Obsérvese, además, que el límite del 55%, fijado en los artículos 236 y 236 bis de la Ley Orgánica del Poder Judicial está relacionado con el monto bruto de la pensión, mientras que el 40% convencional con un salario de referencia, por lo que es en el ámbito de la aplicación de la norma legal, donde se debe valorar si, en algún asunto concreto, la barrera contenida en el instrumento internacional se superpone al parámetro previsto en la legislación.

Por lo demás, carece de sustento afirmar que las disposiciones cuestionadas transgredan la protección internacional de que gozan las personas adultas mayores, ya que no solo se están tomando medidas para resguardar la sostenibilidad del régimen, sino también, en principio, se les está garantizando un ingreso suficiente a las personas pensionadas y jubiladas. En este sentido, reitero que el monto exento de la contribución especial y gravamen escalonado de esta a las pensiones de más de cuatro millones de colones contempla sumas más que dignas para la satisfacción de las necesidades de una persona adulta mayor.

8.- Respecto del considerando LXX.

En cuanto a mi criterio para considerar improcedente la pretensión de declaratoria de inconstitucionalidad por conexidad de la ley n.º 9796 de 5 de diciembre de 2019, limito mi argumentación a los razonamientos expuestos por el voto de mayoría con excepción de lo planteado en el último párrafo, toda vez que el incumplimiento del presupuesto del artículo 89 citado conlleva un motivo más que suficiente para declarar sin lugar este extremo de la acción.

9.- Concerniente al considerando LXXX.

En relación con este considerando, aclaro que dilucidar si hubo o no cambios en los contratos de trabajo de las personas funcionarias del Poder Judicial es una cuestión propia de ser ventilado en la vía común, mas no en una acción de inconstitucionalidad.

Paul Rueda L.

Res. N° 2021011957 Voto salvado del magistrado Rueda Leal en relación con el considerando XLI. En el sub examine, se acusa la inconstitucionalidad de la ley n.º 9544, en cuanto reformó el ordinal 236 de la Ley Orgánica del Poder Judicial y añadió el numeral 236 bis a ese cuerpo normativo. Se reprocha que en ambos ordinales establecieron un tope máximo del 55 % de deducciones respecto del monto bruto de jubilación, lo cual estiman excesivo y contrario al derecho fundamental a la jubilación.

Las normas impugnadas tienen este contenido:

“Artículo 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos:

• 1)Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente.
• 2)Un aporte patronal del Poder Judicial de un catorce coma treinta y seis por ciento (14,36%) sobre los sueldos y los salarios de sus servidores.
• 3)Un aporte del Estado que será un porcentaje sobre los sueldos y los salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (CCSS).
• 4)Los rendimientos y demás beneficios que produzca o pueda llegar a generar, obtener el Fondo.

En ningún caso, la suma de la contribución obligatoria y la contribución especial, solidaria y redistributiva y, en general, la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución obligatoria establecida en la presente ley ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial.

Artículo 236 bis- Contribución especial, solidaria y redistributiva de los pensionados y jubilados Además de la cotización común establecida en el artículo anterior, los pensionados y los jubilados, cuyas prestaciones superen los montos que se fijarán, contribuirán de forma especial, solidaria y redistributiva, de acuerdo con la siguiente tabla:

• a)Sobre el exceso del tope establecido en el artículo 225 y hasta por el veinticinco por ciento (25%) de dicho tope, contribuirán con el treinta y cinco por ciento (35%) de tal exceso.
• b)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta por ciento (40%) de tal exceso.
• c)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con el cuarenta y cinco por ciento (45%) de tal exceso.
• d)Sobre el exceso del margen anterior y hasta por un veinticinco por ciento (25%) más, contribuirán con un cincuenta por ciento (50%) de tal exceso.
• e)Sobre el exceso del margen anterior contribuirán con un cincuenta y cinco por ciento (55%).

En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial, podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.

Los recursos que se obtengan con la contribución especial, solidaria y redistributiva, establecida en la presente ley, ingresarán al Fondo de Jubilaciones y Pensiones del Poder Judicial”.

Atinente al porcentaje máximo de deducciones de las pensiones, el voto de la Mayoría transcribe parcialmente lo dispuesto en la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020. En adición, señala que los ordinales 236 y 236 bis de la Ley Orgánica del Poder Judicial (reformados por la ley n.º 9544 impugnada), son inconstitucionales, pues ambos fijan un 55% como tope máximo de deducciones legales, lo que excede en 5 puntos porcentuales el máximo establecido en la resolución citada. Asimismo, anula el porcentaje de cotizaciones y la contribución especial en cuanto supere el 50% del monto bruto de la pensión que le corresponde a la persona jubilada o pensionada.

No obstante, respetuosamente me separo del criterio de la Mayoría y declaro sin lugar el recurso con base en estos razonamientos.

Tal y como lo indiqué en mi voto salvado a la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020, el porcentaje establecido por la Mayoría como límite máximo de contribuciones y deducciones (50%) se basó en una interpretación forzada del numeral 71.2 del convenio C102 de la OIT, ya que el artículo 67 de ese instrumento internacional es el que aplica para las reducciones de las pensiones. En esa oportunidad manifesté:

“III.-Voto salvado en cuando a los reclamos de fondo relacionados con las leyes n.os 9380 y 9383. La premisa jurídica del voto de mayoría, sobre la que se basa la mayor parte de su línea argumentativa, parte de que el artículo 71.2 del convenio de la OIT C102 de 1952 -Convenio sobre la seguridad social (norma mínima)- resulta aplicable a los pensiones y jubilados. Tal disposición señala:

“2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una” rama especial”.

Como la norma se refiere a “asalariado”, la mayoría se ve obligada a precisar el significado de ese término, puesto que, evidentemente, solo alude a los trabajadores activos. En tal sentido, consigna el voto principal de este proceso:

“Faltaría por determinar si “asalariado” significa únicamente al trabajador antes de adquirir el derecho a la pensión por el advenimiento de las condiciones formales y sustantivas del derecho, o si es posible, entender que asalariado se refiere también a otro tipo de beneficiario del sistema. En criterio de la Sala, debe darse una interpretación más amplia que incluya no sólo (sic) al trabajador activo, para admitir que en efecto, el pensionado o jubilado estaría incluido en este concepto. De hecho, aunque adelantándose a lo que se dirá posteriormente, esta posición es compatible, desde un punto de vista jurídico y económico, en que el pensionado o jubilado recibe un salario diferido que construyó con sus cotizaciones a lo largo de su vida laboral. Incluso, no se puede dejar de considerar que en el documento del Comité de Expertos evoluciona el concepto de asalariados cuando se refiere a “asegurados”. Así, debe asimilarse, dicho concepto, a ambos obligados, como asegurados potenciales y actuales: pensionado y asalariado. Véase, que el estudio citado enfatiza que no hay una camisa de fuerza sobre los Estados, por el contrario, el abordaje debe responder a los contextos nacionales, y no se puede descartar la evolución de los sistemas para acordar un sistema solidario de financiamiento y buena gobernanza dentro del marco y evolución de los derechos humanos, como se dirá más abajo. Si la disposición busca lograr un equilibrio, es perfectamente atendible que debería incluirse a todos los que reciben una suma pecuniaria producto de la prestación acordada, pues en ese sentido, reparte aquella carga sobre todos los participantes, que es lo que realmente busca establecer la norma internacional. Esta interpretación replicaría positivamente con el Comité de Expertos, ya citado. En consecuencia, se debe entender que “asalariado” o “asegurado” tiene una acepción amplia, y que no es un término excluyente de las personas pensionadas o jubiladas”.

A partir lo citado, la Sala, en el voto principal, concluye que las leyes n.os 9380 y 9383 infringen el párrafo segundo del numeral 71 del Convenio n.o 102 de la OIT al establecer un tope mayor al 50%. Asimismo, la mayoría considera que el exceso del 5% fijado por el legislador implica una violación al núcleo duro del derecho a la jubilación o pensión, en la medida en que las prestaciones fueron reducidas en proporciones mayores a lo permitido por el derecho internacional del trabajo.

Sobre lo anterior, el infrascrito disiente de esta hermenéutica, porque se funda en una premisa errónea a partir de una confusión técnica en nociones jurídicas básicas.

Primeramente, el ordinal 71.2 del convenio de la OIT C102 de 1952 -Convenio sobre la seguridad social (norma mínima)-, está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección. Por ejemplo, en el caso de Costa Rica, el asalariado, de acuerdo con la norma referida, nunca debería cotizar a la Caja Costarricense de Seguro Social más del 50% del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de estos, esto es, del total de recursos que se financian por medio del resto de aportes (del patrono y el Estado).

Ahora, es indubitable que el texto expreso de la norma del convenio regula a los “asalariados”; es decir, a la población económicamente activa, sin que de algún estudio de la OIT válidamente se pueda inferir la conclusión a que llega la mayoría en cuanto a que también aplica a los “pensionados”.

Lo más grave de lo anterior consiste en que la Sala, por la vía jurisprudencial, varía el texto positivo de una norma convencional ratificada por Costa Rica a través de las instancias competentes. De este modo, le cambia el sentido jurídico-normativo a la disposición contenida en el instrumento internacional con el propósito de adecuarlo de manera forzada al caso concreto, que notoriamente versa sobre una materia ajena al objeto del sub lite -el salario-, obviando así la existencia de otras normas del convenio de la OIT, que de forma puntual y concreta regulan lo atinente a las pensiones y las limitaciones que de manera válida se les pueden imponer en aras de la estabilidad financiera y solidaridad social del sistema. Al respecto, la Parte XI “Cálculo de los pagos periódicos”, contiene la siguiente disposición:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 (El destacado no corresponde al original).

Ergo, según el texto literal y explícito del Convenio, para que la pensión por vejez pueda reducirse y, de esta forma, en principio se le asegure a la familia condiciones de vida sanas y convenientes, tal beneficio debe alcanzar como mínimo el 40 por ciento de un salario de referencia.

En cuanto a este punto, sí existe un estudio de la OIT. Precisamente, en la Conferencia Internacional del Trabajo 76ª reunión 1989, “La protección de la vejez por la seguridad social, estudio general de la Comisión de expertos en aplicación de convenios y recomendaciones”, se indicó:

“Nivel de las prestaciones 130. En virtud del cuadro anexo a la parte XI del Convenio núm. 102 relativo a los pagos periódicos, las prestaciones de vejez para un beneficiario tipo - hombre con cónyuge en edad de pensión' - deben alcanzar el 40 por ciento de un salario de referencia2. Dicho porcentaje se eleva al 45 por ciento en el cuadro anexo a la parte V del Convenio núm. 128. Ambos porcentajes pueden sin embargo reducirse en diez unidades como máximo si las prestaciones son garantizadas por lo menos a las personas protegidas que hayan cumplido un período de calificación de duración inferior a treinta años de cotización o de empleo, o de veinte años de residencia normalmente tomada en consideración por los Convenios (párrafos 1, 3 y 4, artículo 29 del Convenio núm. 102 y párrafos 1, 3 y 4, artículo 18 del Convenio núm. 128). En cuanto a la Recomendación núm. 131, preconiza un porcentaje de 55 por ciento3 (párrafo 221, y recomienda en su párrafo 23 que la legislación nacional fije el monto mínimo de las prestaciones de vejez, a fin de asegurar un nivel mínimo de vida.” (El destacado no corresponde al original).

De esta forma, estimo que la premisa de la que parte el voto de mayoría deviene falsa, por lo que inexorablemente las conclusiones derivadas de aquella resultan erradas.

Ahora, el artículo Único de la ley n.° 9380 del 29 de julio de 2016, denominada “Porcentaje de cotización de pensionados y servidores activos para los regímenes especiales de pensiones”, regula:

“En ningún caso, la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por el presente artículo, incluida la contribución especial, solidaria y redistributiva correspondiente, podrá representar más del cincuenta y cinco por ciento (55%), respecto de la totalidad del monto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión".

Por su lado, el ordinal 3 in fine de la ley n.° 9383 de 29 de julio de 2016, denominada “Ley marco de contribución especial de los regímenes de pensiones”, estatuye:

“En ningún caso, la suma de la contribución especial, solidaria y redistributiva y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el cincuenta y cinco por ciento (55%), respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma tal que la suma sea igual al cincuenta y cinco por ciento (55%) respecto de la totalidad del monto bruto de la pensión.” Este límite del 55% respecto de la totalidad del monto bruto de la pensión, en principio, es compatible con el Convenio 102 de la OIT, puesto que, de los argumentos de los accionantes no se infiere, que su aplicación automáticamente transgreda la barrera del 40% respecto de un salario de referencia en los términos del artículo 67 de tal instrumento internacional. En ese sentido, tal salario de referencia, en el caso de Costa Rica, podría estar referido al promedio de salarios utilizado para calcular el monto de la pensión de una persona, lo que resulta conforme al ordinal 65 de esa regulación. Obsérvese que el parámetro del 55% de las leyes cuestionadas está relacionado con el monto bruto de la pensión, mientras que el del 40% convencional con un salario de referencia, de manera que se trata de límites que emplean de manera diferente. Por consiguiente, será en el ámbito de la aplicación de la norma legal, que se deberá valorar si en algún asunto concreto, probablemente concerniente a pensiones muy altas, la barrera convencional se superpone al parámetro legal.

En adición, el mínimo exento que contiene la ley n.o 9383 (diez veces el salario base más bajo pagado por la Administración Pública, según la escala de sueldos emitidas por la Dirección General de Servicio Civil) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n.o 9380 como la ley n.o 9383) sometidas a una escala gradual de afectación, garantizan pensiones más que dignas a las personas adultas mayores. En el sentido anterior, no observo argumentos que demuestren que la contribución escalonada y las cargas impuestas sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión, por lo que descarto alguna afectación manifiesta a la dignidad humana de las personas beneficiarias.

Atinente a lo anterior, no es posible afirmar que las disposiciones cuestionadas transgreden la protección internacional de que gozan las personas adultas mayores, ya que no solo se está garantizando la sostenibilidad del régimen, sino también un ingreso suficiente para satisfacer de manera razonable un nivel digno de vida.

Así, considero que, con los elementos aportados a los autos, las leyes n.os 9380 y 9383 no resultan contrarias a los principios de razonabilidad, proporcionalidad y no confiscatoriedad, ni transgreden la protección especial de que gozan las personas adultas mayores.

De igual forma, aun cuando se acusa transgresión al principio de la responsabilidad administrativa, no menos cierto es que las normas cuestionadas no eximen de responsabilidad a las dependencias públicas cuando cometan alguna lesión a las personas, por lo que prima facie desestimo este alegado.

(…)

En el sentido expuesto, si una pensión financiada en buena medida o totalmente con fondos públicos es irrazonablemente alta (con montos e incrementos desproporcionados), se justifica que a través de leyes se procure el ajuste de tales prestaciones en aras de resguardar el derecho a una existencia digna de todas las personas pensionadas. En tanto la imposición de contribuciones y cargas a las pensiones y jubilaciones por vejez respete el porcentaje establecido convencionalmente (artículo 67 del convenio 102 de la OIT), a priori no existiría alguna transgresión al Derecho de la Constitución. Debe tomarse en consideración que, tal y como lo acepta la mayoría de la Sala, la situación económica del país es complicada y la sostenibilidad del régimen de pensiones se encuentra comprometida, por lo que, en atención al principio de solidaridad social, resulta imprescindible que quienes se encuentran en una mejor posición, contribuyan progresivamente conforme a su capacidad económica. El abordaje de la contribución debe comprenderse a partir de la solidaridad para con la sostenibilidad del régimen y las personas menos favorecidas, antes que el mantenimiento de situaciones de privilegio desproporcionadas a favor de un grupo de personas. Por eso, precisamente, no se considera contrario al principio de irretroactividad que se aumenten los montos de contribución de las personas pensionadas o jubiladas, siempre que se respeten las garantías y límites expuestos en este voto salvado.

Ahora, la mayoría cita disposiciones del Protocolo de San Salvador, la Carta de la Organización de Estados Americanos y la Declaración Universal de los Derechos Humanos relativas al derecho de las personas a llevar una vida digna en su vejez, y considera que el porcentaje del 40%, contemplado en el propio ordinal 67 del convenio 102 de la OIT, resulta contrario a la justicia, la equidad, la interdicción de la arbitrariedad y la confianza legítima. No obstante, según lo indiqué supra, la norma del instrumento internacional que resulta aplicable al caso concreto es justamente ese artículo 67, avalado por la OIT, mas no el numeral 71.2, como modo forzado es interpretado por la mayoría en la sentencia principal. Asimismo, no está de más reiterar que el mínimo exento que contiene la ley n.o 9383 (diez veces el salario base más bajo pagado por la Administración Pública según la escala de sueldos emitidas por la Dirección General de Servicio Civil, que de acuerdo con la Procuraduría General de la República era de ¢2.602.500,00 al primer semestre del año 2017) y el límite del 55% de las deducciones de las pensiones más altas (que contempla tanto la ley n.o 9380 como la ley n.o 9383) sometidas a una escala gradual de afectación en las pensiones mayores, garantizan pensiones más que dignas a las personas adultas mayores.

Por último, aun cuando existan recomendaciones de la OIT que sugieran la mitad del salario como pensión en los supuestos en que se acrediten treinta años efectivos de cotización, no menos cierto es que, por un lado, tales disposiciones no tienen carácter vinculante (precisamente por ser recomendaciones) y, por otro, el convenio 102 de la OIT (cuya obligatoriedad es incuestionable) sí contempla expresamente un porcentaje que se debe respetar a los efectos de la pensión en los casos de vejez (40% de un salario de referencia), de ahí que sea procedente la aplicación directa del instrumento internacional en el sub lite.

Con base en lo expuesto, declaro sin lugar las acciones en lo que corresponde a las leyes n.os 9380 y 9383”.

Precisamente, conforme con la tesitura supra expuesta, la norma del convenio C102 de la OIT que resulta aplicable a este tipo de asuntos es el artículo 67, mas no el numeral 71.2.

En este sentido, los ordinales 67 y 71.2 señalan:

“Artículo 67 Con respecto a cualquier pago periódico al que se aplique el presente artículo:

(a) el monto de la prestación deberá determinarse de acuerdo con una escala prescrita o según una regla fijada por las autoridades públicas competentes, de conformidad con reglas prescritas; (b) el monto de la prestación no podrá reducirse sino en la medida en que los demás recursos de la familia del beneficiario excedan de sumas apreciables prescritas o fijadas por las autoridades competentes, de conformidad con reglas prescritas; (c) el total de la prestación y de los demás recursos de la familia, previa deducción de las sumas apreciables a que se refiere el apartado b) anterior, deberá ser suficiente para asegurar a la familia condiciones de vida sanas y convenientes, y no deberá ser inferior al monto de la prestación calculada de conformidad con las disposiciones del artículo 66; (d) las disposiciones del apartado c) se considerarán cumplidas si el monto total de las prestaciones pagadas, para la parte en cuestión, excede, por lo menos, del 30 por ciento del monto total de las prestaciones que se obtendrían aplicando las disposiciones del artículo 66 y las disposiciones siguientes:

(i) apartado b) del artículo 15, para la parte III; (ii) apartado b) del artículo 27, para la parte V; (iii) apartado b) del artículo 55, para la parte IX; (iv) apartado b) del artículo 61, para la parte X.

CUADRO ANEXO A LA PARTE XI.-PAGOS PERIÓDICOS AL BENEFICIARIO TIPO Partes Contingencias Beneficiarios tipo Porcentaje III Enfermedad Hombre con cónyuge y dos hijos 45 IV Desempleo Hombre con cónyuge y dos hijos 45 V Vejez Hombre con cónyuge en edad de pensión 40 VI Accidentes del trabajo y enfermedades profesionales:

Incapacidad para trabajar Hombre con cónyuge y dos hijos 50 Invalidez Hombre con cónyuge y dos hijos 50 Sobrevivientes Viuda con dos hijos 40 VIII Maternidad Mujer 45 IX Invalidez Hombre con cónyuge y dos hijos 40 X Sobrevivientes Viuda con dos hijos 40 (…)

“Artículo 71.

(…)

2. El total de cotizaciones de seguro a cargo de los asalariados protegidos no deberá exceder del 50 por ciento del total de recursos destinados a la protección de los asalariados y de los cónyuges y de los hijos de éstos. Para determinar si se cumple esta condición, todas las prestaciones suministradas por el Miembro, en aplicación del presente Convenio, podrán ser consideradas en conjunto, a excepción de las prestaciones familiares y en caso de accidentes del trabajo y enfermedades profesionales, si estas últimas dependen de una rama especial”.

Como se puede desprender de la lectura de los numerales citados, la Sala, en la sentencia n.º 202019274 de las 16:30 horas de 7 de octubre de 2020, innecesariamente le cambió el sentido jurídico-normativo al numeral 71.2 para adecuarlo al caso concreto y fijar un porcentaje máximo del 50%, obviando así la existencia del ordinal 67 del instrumento internacional que puntualmente regula lo atinente a las limitaciones que se les pueden imponer a la pensiones. Nótese además, que el artículo 71.2 está referido al porcentaje de cotizaciones de seguro a cargo de los asalariados en relación con el total de recursos destinados a esa protección; es decir, tal disposición regula a los “asalariados” (población económicamente activa) y no a los “pensionados o jubilados”.

Partiendo de lo anterior, de forma consecuente con la línea que he sostenido, declaro sin lugar estos alegatos, por cuanto no consta que los numerales 236 y 236 bis de la Ley Orgánica del Poder Judicial citados supra excedan automáticamente la barrera del 40% de un salario de referencia, establecida en el ordinal 67 del convenio C102 de la OIT. Obsérvese que el parámetro del 55% de las leyes cuestionadas está referido al monto bruto de la pensión, mientras que el 40% convencional a un salario de referencia, por lo que corresponde al ámbito de la aplicación de la norma legal valorar si, en algún asunto concreto, la barrera establecida en el instrumento internacional se superpone al parámetro fijado en la legislación. En consecuencia, no observo argumentos que demuestren que las contribuciones, cargas y deducciones sean abiertamente irrazonables o afecten el núcleo del derecho de la pensión.

Paul Rueda L.

Voto salvado parcial de la Magistrada Hernández López.

La pensión que recibe una determinada persona representa el sustento económico que le permite realizar su proyecto de vida cuando ya no trabaja y alcanza la tercera edad, luego de que ha cumplido con los requisitos legales vigentes. Es un derecho fundamental, según ha determinado la jurisprudencia constitucional y está ineludiblemente ligado con el ejercicio de sus demás derechos y libertades fundamentales y su calidad de vida.

Por decisión exclusiva del legislador costarricense, se adoptó un modelo solidario para construir su esquema de las pensiones en distintos regímenes -desde hace varias generaciones de trabajadores, en el caso del Poder Judicial más de 70 años-, y en ese esquema, se parte de la base de que por medio de su regulación, el Estado no busca ventaja económica, sino que, de acuerdo a nuestro contrato social actual, procura hacer una inversión en ciertos valores o bienes jurídicos que impactan de determinada manera una colectividad en la sociedad, denominados derechos sociales. Existen otros derechos sociales o prestacionales distintos al derecho a la pensión, como la seguridad social, la educación gratuita hasta ciertos niveles, o los programas sociales en general, donde el Estado toma ingresos fiscales y los distribuye sin que el criterio de este sea meramente financiero, es decir, no todos dan igual, ni reciben igual.

El compromiso del estado costarricense con los derechos sociales nace del propio texto constitucional (entre otros artículos 56 y ss) y de varios instrumentos internacionales de derechos humanos a él incorporados –incluso con rango superior en virtud de lo señalado en el artículo 48 de la Constitución Política y la sentencia 1995-02313 de esta Sala en cuanto protejan de mejor manera el derecho. Entre su protección supranacional podemos resaltar el texto del Pacto Internacional de Derechos Civiles y Políticos cuyo protocolo de implementación fue recientemente aprobado en nuestro país y la Convención Americana sobre Derechos Humanos. Ambos instrumentos desarrollan la cláusula de progresividad de los Derechos Económicos Sociales y Culturales ( DESC), entre éstos el artículo 2º del Pacto Internacional de Derechos Económicos, Sociales y Culturales, en adelante PIDESC, el artículo 26 de la Convención Americana sobre Derechos Humanos o Pacto de San José y el Protocolo Adicional a la Convención Americana sobre Derechos Humanos o Protocolo de San Salvador, entre otros, en sus artículos 1º y 2º.

Con base en la normativa y jurisprudencia vigente, tanto nacional como internacional, es reconocido que los derechos sociales son indivisibles e interdependientes con los demás derechos fundamentales, lo que los hace plenamente exigibles y vinculantes para las autoridades públicas (sobre el principio de indivisibilidad ver Airey v Irlanda TEDH). En tiempos de crisis económica los poderes públicos están obligados a impedir que la crisis se convierta en una crisis de derechos humanos, o en una excusa para no cumplirlos. En ese sentido, la doctrina internacional más reconocida ha señalado que las medidas regresivas de los derechos sociales son, en principio, inadmisibles y que son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos. Particularmente, se ha acentuado en que, para el caso de que una administración deba adoptar medidas regresivas en términos del derecho a la pensión, se debe elaborar un estudio técnico del impacto que tendrá sobre los derechos de los afectados, así como demostrar que no existen medidas menos gravosas que pudieran haber sido tomadas. (Federation of employed pensioners of Greece (IKA-ETAM) v. Greece Complaint No. 76/2012) A su vez, y dado que el tema ocupa la atención en los países donde más intensamente se ha desarrollado un Estado Social, el Comité de Derechos Sociales del Consejo de Europa ha adoptado varias decisiones sobre el recorte de las pensiones y en especial se ha analizado el caso de Grecia y su crisis económica. En ellas, el citado órgano ha puesto límite a los ajustes impuestos por la denominada “troika”, señalando que el Estado está obligado a cumplir con la Carta Social de 1961y que cualquier decisión sobre pensiones “debe reconciliar el interés general con los derechos individuales, incluyendo las legítimas expectativas” de los individuos “sobre la estabilidad de las reglas aplicables”.

El Comité de Derechos Sociales del Consejo de Europa y otros Tribunales Constitucionales ha avalado medidas regresivas en los DESC cuando con ellas se persigue un fin legítimo y relevante, como el mejoramiento de otro derecho o del nivel general de cobertura de servicios que garanticen su efectividad o bien sirvan para evitar medidas más gravosas. Así, la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas debe haberse escuchado a los afectados porque se trata del ingreso que reciben en curso, como medio de subsistencia y en el cual se basa la gran parte de su proyecto de vida y de su derecho a una vejez digna.

Las medidas adoptadas por el legislador en la reforma a las pensiones del Poder Judicial, según consta en la sentencia -en la parte que he suscrito-, parte de estudios técnicos en los que se basó el legislador para hacer los ajustes necesarios para proteger el equilibrio económico del fondo de pensiones y así proteger los derechos de la colectividad del fondo y con ello de cada uno de sus asociados. En lo que las reformas impugnadas están apoyados en esos estudios técnicos, he considerado, con la mayoría, que son constitucionalmente sustentables, no obstante, en aquello que se apartan de los estudios técnicos o fueron omisos (como en el caso de las diferencias entre mujeres y hombres para la pensión ordinaria, es decir, sin perspectiva de género), me he separado del criterio de mayoría, precisamente por la falta de un criterio técnico que sustente las medidas adoptadas. En el caso del transitorio que afecta a quienes tienen más de 25 años de cotización, también me he apartado, precisamente porque no tiene un sustento técnico ni una justificación frente a medidas menos gravosas que constaban en el expediente legislativo.

Para determinar si una medida regresiva es legítima, de conformidad con la jurisprudencia interamericana y la doctrina más actualizada, en primer lugar, es necesario verificar la legitimidad de la finalidad que la norma pretende alcanzar; posteriormente se debe analizar si la restricción de derechos es “idónea” o “adecuada”, sucesivamente si es “necesaria” o “indispensable” y, por último, si es “proporcionada” en estricto sentido o “ponderada”.

En el caso concreto, la medida puede ser legítima en cuanto persigue un fin constitucionalmente legítimo( devolver el equilibrio económico al fondo), pero a mi juicio no es proporcionada, según se verá.

Como ha señalado la jurisprudencia de la Corte Interamericana de Derechos humanos y la doctrina más actualizada en la materia, además de asegurarse que se persiga un fin legítimo, se debe constatar si los medios previstos en la norma para lograr el fin perseguido son adecuados o no para alcanzar efectivamente dicho fin o, dicho de otro modo, “(…) el efecto protector de la medida en relación con el interés o valor que se quiere favorecer debe aparecer demostrado claramente”.

También se señala en la jurisprudencia de la Corte Interamericana que no deben existir otros medios para alcanzar con la misma eficacia el fin perseguido que sean menos onerosos o gravosos en términos de sacrificio de los derechos constitucionales susceptibles de limitación en cada caso o, en otras palabras, “(…) que no exista otro medio que pueda conducir al fin y que sacrifique en menor medida los principios constitucionales afectados por el uso de esos medios”. Es aquí dónde en el caso de las personas con 25 años o más de cotizar al régimen, me parece que las medidas son contrarias a la Constitución Política, ya que en el expediente constaba una propuesta técnica menos gravosa para hacer la transición a las nuevas reglas en forma escalonada, y a pesar de ello, el legislador, sin ningún sustento técnico, se aparta de otras opciones técnicamente sustentadas y opta por una medida más gravosa, como fue la de los 18 meses de transición. Es cierto que no existe una inmutabilidad del ordenamiento jurídico y también es cierto que la Sala Constitucional ha dicho que una transición de 18 meses es suficiente, no obstante, en todos los casos que lo ha dicho, no existía una propuesta alternativa menos gravosa para los y las personas afectadas. Es decir, los 18 meses se han aplicado como paliativo cuando no existe una propuesta transitoria técnicamente viable, para no dejar desamparadas a las personas que estaban cercanas a los plazos de jubilación con el fin de no afectar en forma desproporcioanada sus proyectos de vida. No obstante, ese no es el caso en estudio, ya que en el expediente existían propuestas técnicamente sustentables que eran menos gravosas y que fueron descartadas sin una justificación técnica. Allí es donde estimo que se da una desproporción, por sus efectos, en no tutelar a las personas con 25 años o más de cotización, que hace inconstitucional e inconvencional la normativa impugnada en sus medidas transitorias en cuanto a este grupo de personas. No lo he considerado así con las personas con un plazo menor a 25 años, porque su nivel de cercanía con el derecho a la jubilación no es comparable.

Ha señalado la Corte Interamericana que si el daño que se produce sobre el patrimonio jurídico de los ciudadanos es superior al beneficio constitucional que la norma está en capacidad de lograr, entonces es desproporcionada (…)” .

Asimismo, en cuanto a la intensidad que el juicio de proporcionalidad debe tener, la Corte ha sostenido que en temas económicos y más concretamente en lo que tiene que ver con temas presupuestales y apropiación de recursos, el legislador tiene una amplia libertad de configuración, motivo por el cual, en estos casos, los eventuales juicios de proporcionalidad que se hagan, deben tener una intensidad leve. Sin embargo, cuando la forma en la que se dispone de los recursos atenta contra otros derechos de mayor relevancia constitucional, verbigracia el mínimo vital o la dignidad humana, el juicio debe ser estricto. En el caso en estudio, las personas con 25 años o más de cotización al régimen de pensiones del poder judicial, fueron a mi juicio innecesariamente afectadas, ya que existiendo una alternativa técnica escalonada más proporcionada para no, ésta fue descartada por otra, sin que conste la justificación técnica para hacerlo en el expediente legislativo, lo que me parece le resta el criterio de proporcionalidad, y por lo tanto de razonabilidad, a la medida en cuestión y por esa razón, he salvado parcialmente el voto en este sentido.

En cuanto a la postergación, he salvado el voto, al considerar la existencia de una inconstitucionalidad por omisión en la Ley 9544 impugnada, ello debido a que el legislador no le ha dado el mismo trato frente a la ley a los trabajadores del Poder Judicial en cuanto a la posibilidad de tener incentivos para postergar su derecho a la jubilación, según las características de su propio régimen. Considero que esta omisión vulnera el Derecho de la Constitución en perjuicio de las personas servidoras judiciales por cuanto, si la intención del legislador ha sido la de ir tratando de equiparar -en lo posible- las condiciones bajo las cuales se desarrollan los diferentes regímenes de pensiones, resulta más que evidente que en la Ley 9544 impugnada, esa circunstancia no se ha tomado en cuenta en relación con este punto en concreto.

Consta en autos que un sector de los accionantes cuestiona las modificaciones introducidas al Régimen de Jubilaciones y Pensiones del Poder Judicial a través de la Ley 9544, por carecer de normas específicas que otorguen beneficios a los trabajadores y trabajadoras del Poder Judicial que deciden postergar su jubilación, lo que sí se ha establecido y regulado para otros regímenes de pensiones que existen en el país como es el caso del Régimen de Invalidez, Vejez y Muerte (IVM) de la Caja Costarricense de Seguro Social. Sobre este extremo, es oportuno mencionar lo que dispone el artículo 25 del Reglamento del IVM, según el cual:

"Artículo 25. El asegurado que cumpla los requisitos para tener derecho al disfrute de pensión por vejez, tendrá derecho a una pensión adicional por postergación del retiro, a partir de la fecha en que haya cumplido los requisitos legales y reglamentarios. Esta pensión adicional consistirá en el 0,1333% por mes sobre el salario promedio calculado según el articulo 23°.

El monto de la pensión adicional por postergación del retiro sumado al monto de la pensión ordinaria calculada según el artículo 24° de este Reglamento, no podrá exceder del 125% del salario o ingreso promedio indicado." Obsérvese que ese beneficio por postergación se traduce en un reconocimiento económico para el trabajador (a) que, por condiciones personales, profesionales o de cualquier tipo, decide no acogerse a su derecho a la jubilación o pensión en el momento en que le correspondería, escogiendo mantenerse activo en sus funciones y continuar laborando en la institución. Al hacerse un análisis objetivo de la situación, no cabe duda de que ese reconocimiento que se otorgaría bajo tales circunstancias, no sólo se constituye en un elemento a favor de la persona trabajadora sino también -y probablemente en mayor medida- un beneficio para el Fondo toda vez que seguirá cotizando activamente y, por tanto, le seguirá produciendo riqueza, al contrario que los jubilados o pensionados que están en una situación pasiva frente al fondo, produciéndole reducción de su haber económico. Desde esta perspectiva, en mi criterio, lo conveniente sería que un Fondo como el del Poder Judicial, además de contar con posibilidades de jubilación anticipada que más bien le perjudican, tuviere la opción de ofrecer a sus miembros, incentivos por postergación como ciertamente existen en otros regímenes jubilatorios, toda vez que constituyen medidas de compensación en beneficio del Fondo y de los trabajadores.

Obsérvese que en el proyecto de ley original con el cual inició el expediente legislativo No. 19.922 y que se denominaba “Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa”, incluyó en el artículo 235 Ter, párrafo final, un incentivo por postergación según el cual:

“(…)

El monto mensual correspondiente a la pensión por vejez se obtendrá de la siguiente manera:

a) …

b) …

• c)En caso de que se cumplan los requisitos para optar por la pensión por vejez y el trabajador no se acoja a esta, el monto obtenido se incrementará en un 0,5% del salario de referencia, por cada trimestre adicional postergado”.

Como se desprende de la cita anterior, el beneficio por postergar la jubilación consistía en que, por cada trimestre adicional en que el trabajador retrasara su jubilación, se incrementaba el salario de referencia en un 0,5%; no obstante lo anterior, adicionalmente, en ese proyecto de ley se incluyó el artículo 244 que establecía:

“Artículo 244.- Las personas trabajadoras del Poder Judicial, que alcancen o superen los requisitos de edad y tiempo de servicio para acogerse a una jubilación, pero que posterguen su disfrute, adquieren el derecho a que de los recursos del Fondo de Jubilaciones, se les cancele el equivalente a un mes de salario, por cada año completo postergado”.

Obsérvese que se trataba de un beneficio adicional que pretendía incentivar a las personas para que no se acogieran a la jubilación y pudieran continuar laborando pero, a la vez, recibiendo algún tipo de reconocimiento por esa decisión. Igualmente, debe indicarse que en el proyecto de ley que se tramitaba bajo el expediente legislativo No. 19.651 y que se denominaba “Ley de Reforma del Título IX de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937 y sus reformas”, se incluyó un incentivo por postergación, indicándose expresamente en la exposición de motivos, lo siguiente:

“Incentivo por postergación de la jubilación También introducimos esta posibilidad y con ella procuramos que las personas que alcancen los requisitos para acogerse a la jubilación, se mantengan laborando en el Poder Judicial por más tiempo, de modo que el Fondo no tenga que asumir a ese momento el pago de la jubilación. A cambio la persona que posterga la fecha en que alcanza el derecho jubilatorio, obtiene como incentivo el equivalente a un salario por cada año completo postergado, ese dinero se pagará con cargo al Fondo de Jubilaciones al momento en que se acoja a la jubilación, logrando con este procedimiento, un ahorro de doce erogaciones anuales que habría de hacer el Fondo, si la persona se hubiera acogido a su derecho en el momento en que alcanzó los requisitos”.

En el cuerpo del texto del proyecto, ese incentivo se reconocía en el artículo 244 en el que se establecía:

“Artículo 244.- Las personas trabajadoras del Poder Judicial, que alcancen o superen los requisitos de edad y tiempo de servicio para acogerse a una jubilación, pero que posterguen su disfrute, adquieren el derecho a que de los recursos del Fondo de Jubilaciones, se les cancele el equivalente a un mes de salario, por cada año completo postergado.” Tales posibilidades de incluir un incentivo por postergación del beneficio jubilatorio, fueron eliminadas en los sucesivos proyectos y en la justificación del Dictamen Afirmativo de Mayoría emitido por la Comisión Especial el 27 de julio de 2017, expresamente se indicó que:

“La Comisión Dictaminadora consciente y responsablemente incorporó en el texto aprobado, las variables que establece el Marco Normativo IICE_4, con la finalidad de no poner en riesgo la sostenibilidad presente, ni futura, del Régimen de pensiones y jubilaciones del Poder Judicial y basarse estrictamente en la recomendación técnica emitida por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica. De ahí que las siguientes variables reguladas en el texto aprobado, se apegan a las contenidas en el Marco Normativo IICE_4, estas son:

(…)

m- Incentivo de postergación de la jubilación por vejez: no se contempla en el modelo” Según se desprende de lo anterior, el legislador omitió incluir el citado incentivo bajo el argumento de que no se había incorporado en el estudio técnico que se hizo por el Instituto de Investigación en Ciencias Económicas de la Universidad de Costa Rica; sin embargo, bien pudo haber solicitado que ese estudio se ampliara en ese sentido en aras de agregarlo a este régimen específico, sobre todo si se toma en cuenta que su intención original estaba dirigida a lograr una unificación de los diferentes sistemas de jubilaciones y pensiones que existen en el país.

Así las cosas, debido a que la Ley 9544 no contempló ese tipo de incentivos aun cuando el legislador ordinario contaba con la potestad de haberlo incluido y con el mandato de regular este tipo de previsiones de carácter social en beneficio de los trabajadores -tanto a nivel individual como colectivo para favorecer al Fondo-, estimo que la Ley 9544 contiene una inconstitucionalidad por omisión que afecta el derecho a un trato igual ante la ley.

En cuanto al voto salvado sobre el porcentaje de rebajo del impuesto solidario, remito a las razones dadas en el voto emitido en la sentencia n.? 2020-19274 de las 16:30 horas de 7 de octubre de 2020, en la que consideré, en conjunto con el magistrado Rueda que según el texto expreso del artículo 67 del de la OIT C102 de 1952 ­Convenio sobre la Seguridad Social (norma mínima), la pensión o jubilación puede reducirse siempre y cuando se respete el 40% de un salario de referencia, lo que no consta que se vea transgredido automática y evidentemente con el contenido de las normas impugnadas.

Nancy Hernández L.

Nota de la Magistrada Hernández López En cuanto a la violación al principio de publicidad, tal y como consta en el por tanto de la sentencia, me sumo a la nota de la magistrada Garro Vargas. En cuanto a la nota final de carácter general, prescindo de la misma.

Nancy Hernández L.

Voto salvado parcial del Magistrado Rueda Leal y la Magistrada Hernández López con redacción de la segunda. Sobre la omisión del legislador de incluir la perspectiva de género en el artículo 224 de la Ley 9544.- Desde el punto de vista constitucional, en aras de cumplir con el principio de igualdad, las condiciones de desventaja estructural que enfrentan las mujeres deben contrarrestarse mediante medidas diferenciadas de carácter positivo que incluyan la perspectiva de género, en todos los aspectos de la vida productiva.

En esta materia, además del obligatorio cumplimiento del precepto constitucional del artículo 33 de la Constitución Política, el país se ha comprometido, mediante diversos tratados internacionales de derechos humanos, a generar acciones proactivas para reducir la brecha de desigualdad que existe en la práctica. Aparte de lo anterior, en distintos estudios se ha reconocido que nuestro país, sigue manteniendo un sistema patriarcal en el que las mujeres son las primeras en resolver el cuido de los infantes, adultos mayores, personas con discapacidad y otros miembros de la familia, que trabajan en promedio 13.5 horas más por semana en el hogar con respecto a los hombres, entre otros, lo cual se traduce en un mayor peso y desgaste producto de la desigualdad en la distribución de las responsabilidades familiares y domésticas debido a los roles que socialmente se les ha asignado y que llevan en muchas ocasiones paralelamente a su trabajo formal (ver entre otros Encuesta Nacional de Uso del Tiempo (ENUT) del 2017).

Como se indicó supra, nuestro país ha suscrito los principales tratados de derechos humanos, entre estos, destacan los de la materia específica de tutela de las mujeres como la CEDAW o Convencio´n para la Eliminacio´n de todas las formas de Discriminacio´n contra las Mujeres, la Convención Belén Do Pará, de los que se deriva, a nuestro juicio, la necesidad de reconocer el aporte que realizan las mujeres, por medio del trabajo no remunerado, al bienestar de los hogares, las familias y al desarrollo econo´mico del pai´s, sobre todo cuando está demostrada la inequidad en la distribucio´n y uso del tiempo entre mujeres y hombres como un factor determinante de las desigualdades en el trabajo y en el empleo, que opera como una barrera para el pleno desarrollo de las mujeres. Sobre este tema, el Comité para la Eliminación de la Discriminación contra la Mujer de las Naciones Unidas, en la Recomendacio´n General No. 27 sobre las mujeres de edad y la proteccio´n de sus derechos humanos, señala que existen mu´ltiples formas de discriminacio´n a las que se enfrentan las mujeres a medida que van envejeciendo, y ello explica el contenido de las obligaciones que deben asumir los Estados partes con respecto al envejecimiento con dignidad y los derechos de las mujeres de edad, por lo cual se formulan recomendaciones de política para incorporar las respuestas a las preocupaciones de las mujeres de edad en estrategias nacionales, iniciativas de desarrollo y medidas positivas, de manera que estas mujeres puedan participar plenamente en la sociedad, sin discriminacio´n y en pie de igualdad con los hombres. Esta situación se agrava con la jubilación, sobre todo en aquellos países en los que las legislaciones no contemplan diferentes edades de jubilación para mujeres y hombres; discriminación positiva que pretende ofrecer una solución para el colectivo femenino. Sobre este tema, debe señalarse que el fundamento para defender una edad de jubilacio´n ma´s temprana para las mujeres, es compensarlas o por la tradicional carga de labores dome´sticas y crianza de nin~os, que hacen que participen menos que los hombres en el mercado laboral (56% frente a 83% en la regio´n) y que, cuando lo hacen, sea en muchos casos soportando una mayor carga pero con un menor salario. Desde esta perspectiva, la diferencia en la edad jubilatoria -como medida afirmativa- se justifica por la exigencia de asegurar la efectiva y completa igualdad entre hombres y mujeres, compensando las desventajas que sufren ellas a lo largo de su vida laboral y profesional, toda vez que las mujeres son las ma´s expuestas a los efectos negativos de aquellas dina´micas, propias del mercado de trabajo, que terminan con castigar mayoritariamente a las mujeres. Esta medida de discriminación positiva que tiende a reconocer una diferencia en la edad jubilatoria entre hombres y mujeres, encuentra su fundamento en múltiples instrumentos internacionales, debidamente aprobados y ratificados por Costa Rica, como los citados supra y la Convención sobre la Eliminación de todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convencio´n Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer, entre otros, que establecen la necesidad de cumplir con el derecho real a la igualdad entre hombres y mujeres, y por el cual, Estados como Costa Rica se comprometen a adoptar todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo a fin de asegurarle los mismos derechos que ostentan los hombres. Sobre el particular, el Comité de la CEDAW ha insistido mucho en que la mujer ha sido y sigue siendo objeto de diversas formas de discriminación por el hecho de ser mujer, tomando en cuenta que la discriminacio´n de ge´nero en el empleo que sufren durante toda su vida, tiene un impacto acumulativo en la vejez, que las obliga a vivir con ingresos y pensiones desproporcionadamente bajos, o incluso inexistentes, en comparacio´n con los hombres. Para ese Comite´, no es suficiente garantizar a la mujer un trato ide´ntico al del hombre; tambie´n deben tenerse en cuenta las diferencias biolo´gicas que hay entre la mujer y el hombre y las diferencias que la sociedad y la cultura han creado, por lo que, en ciertas circunstancias, sera´ necesario que haya un trato no ide´ntico de mujeres y hombres para equilibrar esas diferencias pues el logro del objetivo de la igualdad sustantiva tambie´n exige una estrategia eficaz, encaminada a corregir la representacio´n insuficiente de la mujer y una redistribucio´n de los recursos así como también del poder entre el hombre y la mujer. En consecuencia, como se dijo supra, una acción afirmativa en favor de las mujeres es establecer una diferencia de edad para jubilarse, como una medida especial que reconozca las jornadas laborales adicionales que ejecutan las mujeres costarricenses en general y las trabajadoras del Poder Judicial, en especi´fico; jornadas laborales que producen un desgaste fi´sico y mental a lo largo de la vida de las mujeres y que se visibiliza de manera ma´s clara cuando estas alcanzan una edad avanzada al ir finalizando su vida laboral remunerada. La Procuraduría General de la República al contestar la audiencia otorgada en esta acción de inconstitucionalidad, afirmó que este tipo de diferenciaciones solo se justifican cuando los estudios técnicos sugieran la necesidad de un tratamiento diferenciado y que la Sala lo resolvió así en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, señalando además que, en todo caso, el artículo 224 bis de la Ley 9544, relacionado con el tema de la pensión anticipada, sí hace distinción entre hombres y mujeres con respecto a la edad de retiro; distinción que resulta muy similar a la prevista en el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social, pues se permite el retiro de las mujeres a los 60 años y de los hombres a los 62 años. Por su parte, la Vicepresidenta de la Corte Suprema de Justicia en su informe a la Sala manifestó que en relación con el artículo 224 de la Ley 9544, en el informe rendido ante la segunda consulta a la Corte Suprema de Justicia, el texto de la norma vigente no hizo diferencia por género como si lo hacen otros regímenes de pensiones; omisión ampliamente analizada en la discusión de la tercera consulta y en la que se hizo un especial llamado a observar lo dispuesto en la Convención sobre la Eliminación de todas las Formas de Discriminación contra la Mujer, que en su numeral 11, inciso 1) acápite e) señala que los Estados parte adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer en la esfera del empleo a fin de asegurar, el derecho a la seguridad social, en particular en casos de jubilación por invalidez o vejez y a lo establecido en el artículo 71 de la Constitución Política en cuanto a la protección especial a las mujeres en el trabajo. La Presidenta de la Asamblea Legislativa señaló que en vista de que este alegato respecto a que el numeral 224 de la Ley 9544 no atiende a criterios de género, es un aspecto que ya fuera analizado por la Sala, el reclamo debía ser rechazado. En relación con el tema, ciertamente este Tribunal al analizar la Consulta Legislativa Facultativa en la sentencia No. 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, se pronunció manifestando:

“(…)

De la lectura de las normas antes citadas, se desprende que en éstas se establecen los requerimientos que todo servidor debe cumplir para poder obtener una pensión a cargo del Régimen de Pensiones y Jubilaciones del Poder Judicial. Ahora bien, a criterio de esta Sala el hecho de que no se haga una diferenciación por razón de género en los términos que mencionan los(as) consultantes, no conlleva un vicio de inconstitucionalidad, pues debe tomarse en cuenta que los requisitos para obtener un beneficio jubilatorio obedecen a criterios objetivos que se fijan a partir de estudios técnicos, que establecen requisitos como la edad y el número de cuotas que una persona debe cumplir para garantizar la sostenibilidad de un régimen de pensiones, con independencia del género del cotizante. Hay que tener presente que los(as) consultantes no aportan estudios técnicos para sostener la inconstitucionalidad alegada, de forma tal que se justifique de forma objetiva hacer la diferenciación que se echa de menos, lo cual no significa que, en un futuro, este Tribunal, por medio del control a posteriori de constitucionalidad, no analice el agravio planteado con base en estudios técnicos pertinentes que se lleguen a aportar. Por otra parte, los estudios que se mencionan en la consulta hacen referencia a otros supuestos que no resultan de recibo, pues tienen que ver, entre otras cosas, con jornadas, ingresos, etc. Finalmente, no se puede dejar de lado que, contrario a lo que se alega en la consulta, el IICE, en el oficio n.° 186-2017 del 18 de agosto de 2017, establece de forma clara y precisa lo siguiente:

“c. Edad requerida para la jubilación y diferencias por género.

Los lineamientos establecidos para edad de jubilación en el Dictamen de Mayoría son los mismos que se utilizaron en los marcos IICE_3 e IICE_4: 65 años para la jubilación ordinaria. Para la jubilación por servicio se establece una diferencia de género análoga a la establecida en el régimen IVM de la CCSS: 62 años para los hombres, y 60 años para mujeres. El equipo del IICE no considera necesario establecer distinciones adicionales por concepto de género”.

En virtud de lo anterior, el Tribunal considera que no se presenta el vicio alegado”.

A pesar de lo dicho supra por este Tribunal, debe recordarse -como se ha señalado- que pronunciamientos como el emitido al resolverse la consulta legislativa, además de referirse solo a los temas puntuales consultados, no blinda de futuros cuestionamientos -en control judicial o constitucional posterior-, los efectos o contenido de las normas adoptadas; adicionalmente, el pronunciamiento de la Sala en el marco de una consulta legislativa tiene la característica de que analiza el proyecto de una normativa en abstracto, sin que, como es lógico, ésta se haya aplicado, lo que no obsta para que, a posteriori, este Tribunal llegue a ejercer control de constitucionalidad si la puesta en práctica de una norma revelare lesiones al orden constitucional y, consecuentemente, fuere interpuesto algún reclamo de inconstitucionalidad. Aunado a lo anterior, la Sala -como cualquier Tribunal Constitucional- es el órgano encargado por el constituyente para velar por la supremacía de la Constitución a través de los mecanismos y procedimientos establecidos en la Ley de la Jurisdicción Constitucional y de conformidad con la regla 13 de la Ley de la Jurisdicción Constitucional, la jurisprudencia y los precedentes de la jurisdicción constitucional son vinculantes erga omnes, salvo para sí misma. El control de constitucionalidad se encuentra constreñido a velar porque 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 activo de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego; entonces, vigilar que no se llegue a caer en una Constitución 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 (ver en tal sentido sentencia número 2018-019511 de las 21 horas 45 minutos del 23 de noviembre de 2018). En relación con el tema objeto de análisis en este Considerando, al momento de formularse aquella consulta, no existía certeza suficiente de los efectos prácticos que pudiera ocasionar la normativa que ya hoy, como Ley de la República, se pueden observar, por lo que es ahora, con ocasión de esta acción que le corresponde al juez constitucional realizar el ejercicio de ponderación u optimización para resolver la colisión entre principios, valores y preceptos que se pone en su conocimiento en cuanto a la omisión en que incurrió el legislador de aplicar en el artículo 224 de la Ley 9544, la perspectiva de género y en vista de que la función de la jurisdicción constitucional se constriñe a velar porque 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 la organización y las estructuras políticas contempladas en la Ley Fundamental, es este el momento en el que procede hacer tal valoración y considerar que, precisamente, en aplicación de esos principios y valores que debe tutelar el Juez Constitucional, llevan razón los accionantes al considerar que el artículo 224 resulta inconstitucional por no haber incorporado criterios de género en su contenido en cuanto a la pensión ordinaria.

También es importante mencionar que se solicitó como prueba para mejor resolver al Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, que informara y aclarara si en el “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial (período de vigencia 2016-2018)” se tomó en consideración la variante de género de la persona cotizante como parte de los estudios técnicos; caso contrario, que indicara los motivos de tal decisión. En respuesta a tal inquietud del Tribunal, el Director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica informó a la Sala que, en el Compendio Resumen #4 en el que se describen los 4 marcos normativos desarrollados por el IICE, se puede observar que los marcos IICE_3 e IICE_4, plantean una diferencia de 2 años a favor de las mujeres en los requisitos de edad mínima para la jubilación por servicio -que es la contemplada en el artículo 224 bis-, de modo que, tanto en el marco IICE_3 como el marco IICE_4, resultó ser solvente, desde el punto de vista actuarial, el otorgar una jubilación anticipada a las mujeres que hubieren cumplido al menos 60 años y a los hombres que tuvieren al menos 62 años. Ese funcionario informó también a este Tribunal que, en el mismo Compendio Resumen #4, se establece para el marco IICE_1 una diferencia de 2 años a favor de las mujeres en los requisitos de jubilación por vejez ordinaria y de jubilación por edad -que es la contemplada en el artículo 224- pero el marco IICE_1, resultó ser insolvente en ese supuesto. Así las cosas, ha quedado entonces demostrado que la perspectiva de género sí fue integrada en el estudio elaborado por la Universidad de Costa Rica para la hipótesis de la jubilación anticipada que se contempla en el artículo 224 bis, no así para el supuesto de la jubilación ordinaria del numeral 224, ambos de la Ley 9544 aquí impugnada; en este último caso, el argumento para omitirla fue que, de haberse incluido, los resultados que arrojaba el marco IICE_1, daban como resultado que el Fondo sería insolvente. No obstante la importancia del tema, esa omisión fue replicada por el legislador cuando no incluyó la perspectiva de género en el supuesto del artículo 224 de la Ley 9544 bajo estudio; numeral que probablemente será el que más se use a futuro porque es evidente que, una gran cantidad de servidores y servidoras judiciales, optarán por la jubilación ordinaria toda vez que será la que, en tesis de principio, otorgará mejores condiciones. Igualmente, de vuelta al estudio actuarial, también se observa que a pesar de que Instituto de Investigaciones en Ciencias Económicas contaba con los insumos para ello, no hizo otros cálculos o propuestas para el supuesto de la jubilación ordinaria -que es la que se contempla en el artículo 224 de la Ley 9544- con la inclusión de la perspectiva de género; estudio que, además de haber podido completar el panorama, podría haber arrojado datos según los cuales, incluyéndose la protección de género, el Fondo hubiere sido solvente. En consecuencia, ha quedado demostrado que aun cuando el legislador ordinario tenía el mandato de desarrollar el tema incluyendo los principios y valores del Derecho de la Constitución, entre los cuales se encuentra la perspectiva de género, no lo hizo y, por ende, el artículo 224 bajo estudio contiene una inconstitucionalidad por omisión que da lugar a que se declare con lugar el recurso en relación con esa norma toda vez que no fijó una edad diferenciada para que las mujeres que cotizan al Régimen de Jubilaciones y Pensiones del Poder Judicial, se puedan jubilar bajo condiciones ordinarias. En razón de lo anterior, estimamos que lo correspondía era disponer el deber de la Asamblea Legislativa de corregir esa omisión, siempre contando con el debido criterio técnico que permitiera que la diferencia de edad que se fije, garantice a su vez, la sostenibilidad del fondo de jubilaciones y pensiones, de modo que las condiciones para sustentar la diferencia entre hombres y mujeres que se establezca, fueran valoradas además con el conjunto de cargas y rebajos que ya existen para todos los cotizantes activos y jubilados, a fin de que se respeten los parámetros de razonabilidad, proporcionalidad y no confiscatoriedad.

Paul Rueda Leal Nancy Hernández L.

Magistrado Magistrada Nota de los magistrados Salazar Alvarado y Hernández Gutiérrez sobre la omisión acusada en el artículo 224, con redacción del primero.

Dado que los suscritos magistrados acordamos integrar y tomar posición con los demás miembros de la Sala, cuando fuere necesario para hacer el voto de toda conformidad, declaramos sin lugar la acción únicamente en cuanto a las razones de forma, toda vez que los accionantes no aportaron estudios técnicos que desvirtuaran los que sirvieron de sustento para omitir una perspectiva de género en la reforma al artículo 224, realizada mediante la Ley N°9544 de 24 de abril de 2018, de reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial.

Luis Fdo. Salazar A.

José P. Hernández G.

Voto salvado de los magistrados Salazar Alvarado y Hernández Gutiérrez, con redacción del primero.

Los suscritos magistrados salvamos el voto, y consideramos que es necesario abordar el problema de las acciones acumuladas desde la perspectiva de que en el procedimiento legislativo se incurrió en una violación grosera, manifiesta y evidente del artículo 167, de la Constitución Política, y que, por su relevancia, demanda la inconstitucionalidad de la totalidad de la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”.

Debe empezarse por señalar, que la Comisión Especial encargada para la tramitación del expediente legislativo N° 19.922, puso en conocimiento de la Corte Plena los respectivos proyectos de ley que se iban aprobando, para cumplir con lo establecido en el citado numeral 167. Las consultas a la Corte Suprema de Justicia ocurrieron en tres ocasiones; a saber:

• a)El proyecto de ley se consultó a la Corte Suprema de Justicia y el informe rendido se conoció en la sesión de Corte Plena N° 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa, mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado incide en la organización y funcionamiento del Poder Judicial.
• b)En una segunda ocasión, la Corte Plena en sesión N° 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017, en el que se puso en conocimiento de la Comisión Especial Legislativa que la Corte Plena había emitido el criterio negativo al proyecto de ley consultado, por incidir en la organización y funcionamiento del Poder Judicial.
• c)En una tercera ocasión, la Corte Plena en sesión N° 26-17 de 7 de agosto de 2017, artículo XXX, conoció de la consulta planteada por la Comisión Especial sobre el Dictamen Afirmativo de Mayoría, y se emitió el criterio negativo indicando que el proyecto de ley tramitado bajo expediente N° 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017.

En todas y cada una de las consultas formuladas, la Corte Plena estableció que se trataba de proyectos de ley que afectaban su organización y funcionamiento, de modo que, con base en ese criterio negativo, de conformidad con el artículo 167, de la Constitución Política, y los principios de coordinación, respeto mutuo e igualdad, que informa las relaciones entre órganos constitucionales, entre dos poderes del Estado [sistema de frenos y contrapesos, checks and balances], se debía aprobar la ley con mayoría calificada. Además, se debe mencionar que el último de los proyectos que fue el Dictamen Afirmativo de Mayoría aceptado por la Comisión Especial el 27 de julio de 2017, no fue ese el final. Por el contrario, el texto del proyecto fue objeto de mociones de fondo y reiteración aceptadas por la Comisión Especial, sobre las que votó posteriormente el Plenario Legislativo en Primer Debate, en la sesión extraordinaria N° 14 del 30 de octubre de 2017 (folios 4000, 4306 a 4327 del expediente legislativo). De este modo, el texto votado por el Plenario Legislativo en Primer Debate fue el texto modificado manteniendo algunos de los puntos sobre los cuales la Corte Plena había emitido su criterio negativo, entre ellos, la instalación de una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial en perjuicio de las competencias del Consejo Superior del Poder Judicial. Pero además, debe indicarse que contenía otros cambios sustanciales al proyecto de ley, entre ellos los que agravaron algunas condiciones para los funcionarios judiciales, para el goce y disfrute del derecho a la pensión y jubilación, situación que la Corte Plena debía pronunciarse -respecto del artículo 167, Constitucional- por su relevancia en el Derecho de la Constitución. Estas modificaciones fueron votadas en el Primer Debate, y quedaron aprobadas en el Segundo Debate. Lo anterior, sin haberse hecho la consulta institucional al proyecto aprobado en Comisión y que posteriormente fue votado por el Plenario en la sesión extraordinaria N° 14 del 30 de octubre de 2017.

Si bien, la Asamblea Legislativa consideró era innecesario hacer la consulta al Poder Judicial del texto final, aprobado en Comisión Especial del 27 de julio y las subsiguientes modificaciones realizadas por mociones de fondo y reiteración, y continuar con el trámite legislativo siguiendo el criterio de la Sala la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, dado que esas modificaciones al régimen de pensiones del Poder Judicial no afectaban la estructura y funcionamiento del Poder Judicial, ni el contenido esencial de la independencia judicial, ello no es de recibo para los suscritos juzgadores, como se desarrollará más adelante. Además, hay un patrón de agravamiento a las condiciones de los funcionarios del Poder Judicial que se pueden enumerar de algunas disposiciones que fueron modificadas por las mociones de fondo y de reiteración que quedaron plasmados en el texto aprobado en Comisión, que implicaban un cambio sustancial en el proyecto anteriormente consultado. Como se indicó, este último texto fue aprobado en Primer Debate el 30 de octubre de 2017, según el cual, con un ejercicio de comparación, se observan algunas de las siguientes modificaciones sustanciales de consideración, como por ejemplo las siguientes:

• a)En el artículo 224, se estableció el agravamiento de un 85% del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en la vía laboral, y se modifica para establecerlo en un 82% del promedio de los últimos veinte años de salarios mensuales ordinarios.
• b)En el artículo 229, similar disminución corrió el régimen por sobrevivencia, donde por la muerte del servidor activo la cuantía por viudez, unión de hecho u orfandad disminuiría de un 85% a un 80%.
• c)En el artículo 227, similar ocurre por la incapacidad permanente (invalidez) del funcionario de un 85% a un 83%.
• d)En lo que respecta a los ingresos del fondo de pensiones y jubilaciones del Poder Judicial, se evidencia que se establecía un aporte obrero de entre un once por ciento (11.00%) y un quince por ciento (15%) de los sueldos que devenguen los servidores judiciales, y de las jubilaciones y pensiones a cargo del fondo. Finalmente, quedó aprobado en un trece por ciento fijo (13%), lo que implica que el piso o base del aporte obrero no podría disminuirse al porcentaje menor del once por ciento. Si bien se elimina el extremo superior, el porcentaje fijo eliminó la disminución a favor del empleado judicial, quien históricamente viene aportando una suma importante al fondo.

De este modo, al contrario del criterio de la mayoría de la Sala, que se sustenta de forma importante en la doctrina de la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, antecedente en el cual los suscritos suscribimos un voto salvado junto al magistrado Cruz Castro, consideramos que la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, contiene el vicio sustancial del procedimiento legislativo, por la violación a la norma constitucional que impone la consulta constitucional, con base en los argumentos que se exponen a continuación.

A.- Texto de la ley no consultado a la Corte Suprema de Justicia.

A la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 157, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia sólo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de mayoría sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de mayoría cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados”, con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales”. Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó esa consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…”. No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no sólo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de mayoría como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la mayoría de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no puede haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema de la acción, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho; es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

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, fiscal o de cualquier otro carácter”.

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, 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. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en 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, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”.

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Ello debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resoluciones y en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”.

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, 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, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“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”.

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”.

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en 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, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “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”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”. Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido de la ley con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, al igual que cuando se conoció la consulta legislativa relacionada al proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, hoy aprobada por Ley N° 9544 de 24 de abril de 2018, denominada como “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”, se mantienen las razones del voto salvado. Esa consulta legislativa fue evacuada por Sentencia N° 2018-005758 a las 15:40 horas del 12 de abril de 2018, en la que abordó las diferentes quejas sobre el artículo 239, de la ahora ley en cuestión. En esa oportunidad, se revisó el trámite legislativo en cuanto crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le concede, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales de la Ley disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, de la ley, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio de la ley, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Conforme lo argumentan los accionantes, se incurrió en una violación constitucional en el procedimiento legislativo. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse sobre los vicios en la formación de las leyes cuando se quebrante algún requisito o trámite sustancial previsto en la Constitución o en el Reglamento de la Asamblea Legislativa. Esto es conforme al artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 73.- Cabrá la acción de inconstitucionalidad:

…

• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento […] de la Asamblea Legislativa.

…”.

De manera que, conforme a la Ley de la Jurisdicción Constitucional si lo que se analiza es una ley formal aprobada por la Asamblea Legislativa, se trataría del control posterior de las leyes o acuerdos legislativos, mediante el examen del expediente legislativo, para determinar que en el procedimiento de formación de la ley no se incurrió en algún vicio esencial. Por ello, el vicio detectado en el procedimiento legislativo de la Ley N° 9544, denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, debe declararse por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”.

Nótese por lo dicho, que el vicio apuntado no quedó subsanado, en segundo debate, aún si la Ley hubiera sido aprobado por mayoría calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Nada de esto ocurrió en el procedimiento legislativo, toda vez que la Ley N° 9544 del 24 de abril de 2018, no obtuvo siquiera la votación calificada en el segundo debate, y peor aún, el texto aprobado fue sin consulta institucional. El meollo del problema que nos ocupa, realmente, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

Conviene recordar, que la consulta institucional tiene como fin la protección de la independencia judicial, que es mucho más complejo que reducirlo a la protección de un fuero jurisdiccional. La consulta institucional obligatoria debe ser oportuna, pues de otro modo, sería una obligación de papel que no surtiría las verdaderas salvaguardias que el texto constitucional procura establecer entre iguales Poderes de la República. El sostenimiento de una tesitura contraria, y de modo permanente, por parte de la mayoría del Tribunal no podrá ser sostenible en el tiempo, pues aún en estas circunstancias de inflexión e implosión en la independencia funcional y presupuestaria del Poder Judicial, lo es mayoritariamente, al de las garantías ciudadanas que el Constituyente quiso garantizar en el 167, y luego, mejoró con la reforma al numeral 177, de la Constitución Política.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Mayoría, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”.

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con treinta y un votos (folios 4000 y 4173 del expediente legislativo). Y, para el segundo debate, no obtuvo la mayoría calificada, al alcanzar treinta y cuatro votos (folios 4437, 4608 y 4637 del expediente legislativo).

B.- Las dinámicas jurídicas y sociales que informaron la reforma al artículo 177, Constitucional. Es necesario abordar el criterio de la mayoría, el cual, consideramos con respeto -pero con igual vehemencia-, las razones por las que se considera que utilizan una laxa interpretación de la obligación de la consulta institucional establecida en el artículo 167, Constitucional, además de lo dicho anteriormente. Es claro que, en general, la doctrina constitucional de base para la consulta institucional se basa en similares razones: garantizar que el legislador tenga de primera mano la mejor información para legislar, es decir, cuente con el criterio técnico especifico. Se trata del reconocimiento del Constituyente de las autonomías institucionales, así como en su mayor grado, de la defensa de la independencia que le corresponde a un Poder del Estado u órgano constitucional fundamental del Estado. En los trámites de leyes complejos, como serían aquellas que tuvieran criterio encontrado del Poder Judicial, es cuando más se requiere que una mayoría calificada de los legisladores para promover aquellos cambios significativos en la legislación mediante un verdadero consenso.

Si bien esta Sala, en algunas de sus sentencias, ha establecido que no procede la consulta institucional en proyectos de ley que tienen un carácter nacional o general, este solo criterio jurisprudencial no puede bastarse para descartar la necesidad de agravar el procedimiento legislativo en la Asamblea Legislativa, cuando se trata de la mayoría calificada establecida en el numeral 167, Constitucional. Esto tiene que ser dimensionado no solo referidos a temas que tienen relación con la autonomía institucional del Poder Judicial, sino especialmente, a los referidos a la incidencia directa o indirecta en la independencia judicial, que se garantiza en la Constitución, a través de la estructura orgánica fundamental del Estado. Esto, especialmente, si como en el caso que nos ocupa, ha habido diversos vicios en el procedimiento legislativo, referidos más adelante.

Es claro, que criterios para negar la consulta institucional por considerar que un proyecto de ley sea de carácter nacional o general no puede ser utilizado de forma indiscriminada, especialmente porque con dicha calificación entraría gran cantidad de proyectos de ley que tengan incidencia en el presupuesto nacional, en esta situación una gran mayoría tendrían incidencia nacional que se ocupa para establecer la defensa de objetivos públicos vistos desde criterios economicistas. Al contrario, esta minoría estima que no aplica el criterio jurisprudencial citado por la mayoría, cuando se trata de proyectos de ley que podrían incidir en la organización del Poder Judicial, como órgano fundamental del Estado. Es claro que el escrutinio judicial debe ser más demandante, por los alcances más permanentes sobre la función judicial (que es universal y con plena jurisdicción sobre todas las controversias jurídicas), lo que expresa las funciones fundamentales de control, tanto y más que de las instituciones semi-autónomas y autónomas, porque tiene relación con la especialidad funcional e independencia de un poder de la República. El peso absoluto de la institucionalidad fundamental del Estado debe trazar los criterios del examen y escrutinio que debe hacer este Tribunal Constitucional, de modo que no se puede examinar en los mismos términos que se hace para otras instituciones autónomas, pues evidentemente las consecuencias son muy diferentes para el Estado y la población en general. Basta con señalar la Sentencia N° 2017-009551 de las 11:40 horas del 12 de junio de 2017, que estableció que:

“…en general, la función judicial es universal y tiene plena jurisdicción sobre todas las controversias jurídicas que se suscitan en el país. Universalidad se refiere a la competencia sobre todas las disputas que se sometan a los Tribunales de Justicia, y aun las que no figuran en ella o en la ley por el principio de plenitud hermenéutica (artículo 153 de la Constitución Política). Universalidad supone jurisdicción sobre todos los individuos en controversia, incluso de conformidad con los principios generales del Derecho Internacional Público y del Derecho Internacional Privado. El Poder Judicial tiene competencia para decidir definitivamente sobre todas las controversias, encausando las cuestiones de conformidad con el procedimiento respectivo del iter procesal, finalizando, por lo general, con una sentencia -forma normal de terminar el proceso- con el estado de cosa juzgada, que es una expresión del poder y función de la plena jurisdicción, universal, y que implica la prohibición de abrir de nuevo a la discusión la misma controversia, para evitar la perpetuación de los conflictos y su amenaza sobre la convivencia pacífica en sociedad. Es la lápida que prohíbe abrir de nuevo la discusión sobre los mismos hechos”.

El Constituyente por supuesto asignó un campo concreto de acción al Poder Judicial para que funciones con independencia, que se nutre y participa de todo el pensamiento occidental, inspirado en los principios de la imparcialidad y la justicia, sencillamente no se puede comparar, o asimilar a la de los entes menores del Estado, por el contrario, es claro que el artículo 167, de la Constitución Política, se ubica en consideración a la importancia institucional y su autonomía funcional en el gran esquema del Estado.

Anteriormente en esta misma sentencia, se estableció también que:

“Esto lleva al principio de legalidad funcional, que conlleva el ejercicio de las competencias constitucional del Estado, el logro de los objetivos torales de cada poder sin extenderse a los de los otros Poderes independientes y de igual rango, y al ejercer cada uno las funciones de peso y contrapeso es que pueden controlar y limitar a los otros Poderes, según lo autoriza la Constitución Política. De conformidad con la distribución de las funciones fundamentales del Estado, cuando el Legislativo dicta las leyes, está sujeto a la supremacía de la Constitución Política y a los límites consagrados por la Constitución Política, que condiciona definitivamente su regularidad y permanencia en el tiempo, además de no poder aplicarlas directamente; en cuanto al Poder Ejecutivo, no podría dejar de aplicar e implementar las disposiciones que le dicta el Poder Legislativo, ni dejar de observar las disposiciones de la Carta fundamental; finalmente, el Poder Judicial no podría resolver a contra-pelo de las normas aplicables a un caso concreto, salvo por el conflicto con el principio de jerarquía normativa, el principio de la supremacía de las normas, de las leyes, tratados y de la Constitución Política, quedando sujeto a éstas. De conformidad con los artículos 10 y 152 y siguientes de la Constitución Política debe velar por la regularidad de toda la legislación, por lo que no podría aplicar normativa inválida o inconstitucional, pues aunado a la función fundamental de impartir justicia, debe velar para que toda acción u omisión no vulnere los principios esenciales de todo Estado social y democrático de Derecho, entre ellos: los principios de legalidad, jerarquía normativa, el respeto de los derechos y libertades fundamentales de la población. En consecuencia, el Poder Judicial interpreta y aplica finalmente la Constitución Política, teniendo el control de constitucionalidad de las normas y omisiones -el monopolio del rechazo- cuando la legislación es contraria a ésta, así cuando vulneran los derechos fundamentales, porque naturalmente es el último garante del principio de legalidad, el defensor último de los fines y objetivos del Estado y de la realización, por el Derecho caso por caso, del bienestar del ser humano”.

Ahora bien, la sentencia aborda las generalidades del Fondo y su desarrollo legal a partir de los inicios del Siglo pasado, en sintonía con la Sentencia N° 2018-5758 de las 15:40 horas del 12 de abril de 2018, para explicar el desarrollo legal de la seguridad social y del régimen previsional del Poder Judicial. Sin embargo, se debió hacer referencia a que las falencias del sistema sirvieron de acicate también a nivel constitucional, pues hubo otras que se gestaron para garantizar mayor estabilidad institucional y a favor de la independencia judicial. De este modo, debe hacerse referencia a la materialización de una de las conquistas más importantes para la institucionalidad del país, la que se obtuvo con la reforma al artículo 177, Constitucional, con la que se garantizó la independencia económica del Poder Judicial. Cabe entonces plantear, que si las dinámicas institucionales y sociales de ese entonces fueron importantes, aún lo fueron más las de la enmienda a la Constitución Política, las que no son nada despreciables, pues estuvieron dirigidas a fortalecer el Poder Judicial, y con el mismo peso, producir protección dentro del funcionariado. Las dinámicas económicas y jurídicas dicen tanto o más, pues pese a las conquistas legales y por la cantidad de problemas que existían en la época previa a la reforma constitucional, se gestó desde el seno de la Corte Plena, y fue acogido por la Asamblea Legislativa, el mejoramiento sustancial de aquella independencia económica del Poder Judicial en la propia Constitución Política. No cabe duda que las protecciones que el Constituyente derivado estableció en la reforma, se distribuyen igualmente sobre la estabilidad del funcionariado judicial. Así, fueron contempladas las limitaciones en las instalaciones e infraestructura, dotar de mejores herramientas de trabajo, mejoramiento de los salarios, más recursos para el Régimen de Jubilaciones y Pensiones del Poder Judicial, entre otros. Los reclamos de los accionantes debieron encontrar eco en esta vía de la acción de inconstitucionalidad, las que al inicio de este voto salvado se enumeran algunas. La independencia judicial se defiende con las herramientas que precisamente dotó el Constituyente, dentro de la cual las democracias más consolidadas del mundo se dedican a producir los instrumentos de protección a la independencia judicial y económica, siendo una de ellas la votación calificada en caso de que un proyecto de ley incida en la organización y funcionamiento del Poder Judicial.

En la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, esta Sala estableció que:

“VI.- CARÁCTER EXCEPCIONAL DE LA FUNCIÓN MATERIALMENTE ADMINISTRATIVA DEL PODER JUDICIAL. Si bien al Poder Judicial le corresponde, por antonomasia, el ejercicio exclusivo de la función jurisdiccional –tal y como se señaló en el considerando anterior-, lo cierto es que, también, ejerce de forma excepcional o extraordinaria funciones de índole administrativo. En ese sentido, resulta menester apuntar que la función administrativa no está constitucional ni legalmente asignada de forma exclusiva a un órgano o ente y, tampoco, posee un contenido típico que la caracterice, puesto que, como bien ha apuntado la doctrina es más fácil describir a la administración pública que definir la función administrativa por su carácter heterogéneo. Resulta claro que el ejercicio de la función materialmente jurisdiccional, requiere y precisa de toda una infraestructura administrativa que permita ejercerla de consuno con el precepto constitucional, esto es, de forma pronta y cumplida. Esto es lo que se ha denominado el “servicio público de administración de justicia”. Así, el soporte o aparato administrativo auxiliar que le permite a los jueces y tribunales dictar sus resoluciones, conforman dicho servicio, con lo cual el concepto está referido a los perfiles administrativos de la función jurisdiccional, tales como la organización y funcionamiento de los tribunales, la logística, -avituallamiento y suministros-, el manejo, gestión o administración eficiente y eficaz de los despachos judiciales para evitar las dilaciones indebidas o injustificadas en la tramitación de la causa, la función administrativa ejercida por los órganos administrativos del Poder Judicial (v. gr. resoluciones administrativas de la Corte Plena, del Consejo Superior del Poder Judicial, del Tribunal de la Inspección Judicial, del Consejo de la Judicatura y, en general, de los diversos departamentos administrativos -Dirección Ejecutiva, Proveeduría, Personal, etc.-) y auxiliares adscritos a éste como la policía represiva ejercida a través del Organismo de Investigación Judicial, el ejercicio de la acción pública por el Ministerio Público y la provisión de una defensa gratuita por medio de la Defensa Pública. No obstante, si bien esa función materialmente administrativa es desplegada por el aparato u organización de apoyo o de soporte a la jurisdiccional, debe entenderse en un sentido estrictamente excepcional, es decir, resulta admisible aquella que sea, únicamente, necesaria e idónea para coadyuvar en el ejercicio de la función, materialmente, jurisdiccional y no otra. En razón de lo anterior, por aplicación del principio constitucional de la reserva o exclusividad de jurisdicción se impone que el Poder Judicial debe utilizar y destinar la mayoría de sus recursos al ejercicio de una función, materialmente, jurisdiccional.

VII.- AUTONOMÍA E INDEPENDENCIA ECONÓMICA DEL PODER JUDICIAL. Una de las grandes conquistas históricas del Estado Constitucional de Derecho costarricense, lo fue la autonomía económica del Poder Judicial lograda por vía de la reforma parcial a la Constitución Política del 7 de noviembre de 1949, mediante la Ley No. 2122 del 22 de mayo de 1957. Esta ley le adicionó a la versión original del artículo 177 de la Constitución Política un párrafo segundo, en el cual se dispuso lo siguiente:

“(…)

En el proyecto se le asignará al Poder Judicial una suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico. Sin embargo, cuando esta suma resultare superior a la requerida para cubrir las necesidades fundamentales presupuestadas por ese Poder, el departamento mencionado incluirá la diferencia como exceso, con un plan de inversión nacional, para que la Asamblea Legislativa determine lo que corresponda (…)”.

Esta reforma parcial a la Constitución fortaleció, de modo congruente con el ordinal 9° que proclama la separación de funciones, la independencia de ese Poder de la República. La enmienda constitucional partió de la propuesta formulada el 6 de septiembre de 1956 por el Magistrado de entonces Evelio Ramírez a la Corte Plena, órgano colegiado que la aprobó en la sesión celebrada ese mismo día. En la justificación de la modificación constitucional -que posteriormente pasaría a ser la exposición de motivos de la reforma en el procedimiento legislativo-, el Magistrado Evelio Ramírez, insistió en la necesidad de asignarle al Poder Judicial un mínimo o “suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico”, para superar la situación lamentable de ese Poder de la República al haber recibido en los siete años precedentes a 1956 tan solo un porcentaje promedio del 2.75% en relación con el Presupuesto General de Ingresos. El propósito manifiesto del Magistrado gestor de la reforma constitucional y de la Corte Plena al acoger su propuesta, fue contar con mayores recursos financieros para diversificar y fortalecer los distintos ordenes (sic) jurisdiccionales, incrementar el número de juzgados y tribunales y del personal necesario para atender la demanda del servicio, reformar y mejorar los procesos, dotar de una adecuada infraestructura y recursos materiales a los juzgados y tribunales, mejorar los salarios de quienes se dedican a la delicada y difícil tarea de administrar justicia y su régimen de jubilaciones o pensiones, todo en aras de procurar una justicia más pronta y cumplida. En ese sentido, el Magistrado Evelio Ramírez efectuó consideraciones tales como las siguientes:

“(…) la Corte Suprema de Justicia, conociendo mejor que nadie las verdaderas necesidades del Poder Judicial, elaboraría su propio anteproyecto de Presupuesto tomando en cuenta los factores que, a su juicio, exijan variaciones económicas dentro de un criterio honesto, racional y justo. Y no sólo atendería a la debida instalación de sus múltiples oficinas –que hoy ofrecen un aspecto casi ruinoso en toda la Nación-, sino que también les suministraría las máquinas de escribir, muebles adecuados y los demás medios materiales, indispensables para laborar con la mayor eficiencia posible. Además se podría pagar en forma más equitativa a todos los servidores judiciales (…) El mismo fondo de Jubilaciones y Pensiones –cuya estabilidad está seriamente amenazada- podría ser reforzado de esa partida global (…) El porcentaje promedio que ha correspondido al Poder Judicial en los últimos siete años, ha sido de un 2.75 por ciento, en relación con el Presupuesto General de Ingresos (…) La experiencia ha venido a demostrar que el indicado porcentaje resulta del todo insuficiente para el adecuado funcionamiento del Poder Judicial. Para darse cuenta de ello, basta reparar en los edificios inadecuados que ocupan casi todos los tribunales de la República, en la lentitud con que se tramitan los diversos asuntos judiciales, debido al escaso número de tribunales y del personal que tienen los que funcionan en la actualidad, en el insuficiente número de máquinas de escribir y de otros muebles que son de imperiosa necesidad, en las bajas dotaciones de los servidores judiciales, etc. etc. (…)”.

Por su parte, la Comisión legislativa especial nombrada para dictaminar el proyecto de reforma al artículo 177 de la Constitución, en primera legislatura, en su informe del 9 de octubre de 1956 (visible a folios 20-21 del expediente legislativo), estimó lo siguiente:

“Esta reforma constitucional –con la cual se afianzará definitivamente la autonomía del Poder Judicial en el aspecto económico hará posible que en el futuro encuentren solución adecuada los múltiples problemas que en la actualidad confronta dicho Poder por la limitación de los recursos económicos asignados a él en los presupuestos nacionales. Esos problemas vienen de muy atrás y se agravan día con día como consecuencia del crecimiento y desarrollo de la población que demanda cada vez más servicios de administración de justicia. Las oficinas judiciales no cuentan con personal suficiente para atender los muchos problemas a diario surgidos y en lo material, se hallan con muy pocas excepciones, alojadas en locales totalmente inadecuados y sin mobiliario ni equipos suficientes (…) Las remuneraciones de los servidores judiciales son, por otra parte, exiguas de tal modo que la carrera judicial no ofrece estímulo ni aliciente alguno a quienes deseen iniciarse en ella y esto aleja en muchos casos a elementos de vocación y capacidades que podrían prestar, en otras condiciones, sus servicios como Alcaldes, Jueces o Magistrados”.

Consecuentemente, la idea rectora que inspiró la reforma constitucional de 1957 lo fue fortalecer la organización y funcionamiento del Poder Judicial, para que ejerciera de forma eficiente y eficaz su función esencial de impartir o administrar justicia. Bajo esta inteligencia, cualquier disposición del legislador ordinario tendiente a adscribir en la organización del Poder Judicial órganos que ejercen competencias materialmente administrativas ajenas o que no atañen a la función jurisdiccional, resulta inconstitucional, en cuanto vulnera la autonomía financiera y, por consiguiente, la independencia del Poder Judicial, al desviar el uso y empleo, aunque lo sea en un pequeño porcentaje, del mínimo presupuestario garantizado a éste para otros fines. Se puede afirmar, entonces, que el párrafo 2° del artículo 177 de la Constitución Política, adicionado por la Ley No. 2122 del 22 de mayo de 1957, es una clara garantía institucional, puesto que, al consolidar la autonomía e independencia financiera del Poder Judicial garantiza un ejercicio efectivo, por parte de cualquier persona, del derecho fundamental establecido en el artículo 41 de la Constitución Política de acceder la jurisdicción y de obtener una justicia pronta y cumplida”.

La afirmación de que no se estén sustrayendo competencias administrativas esenciales de organización y conexas con la función jurisdiccional es muy relativo, si como se explicó atrás, se está modificando un aspecto organizativo y de la administración del personal del Poder Judicial. Con ello, se ignora la historia de la enmienda constitucional, donde sí fue contemplado como justificación para pasar la reforma al artículo 177. La mayoría afirma que se trata del mismo contenido esencial de un instituto jurídico, pero al hacerlo la ley elimina la administración de las pensiones en el Consejo Superior del Poder Judicial, para otorgarla a una Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. Es cierto, que se mantiene dentro del Poder Judicial, pero ahora en un órgano desconcentrado, lo que, evidentemente, toca una parte esencial del gobierno del Poder Judicial (artículos 152 y 156, Constitucionales). Hay un cisma que produce afectación a la organización del Poder Judicial, si se quiere en forma lata, en la capacidad de organizarse, en el manejo y administración del fondo, para el ejercicio de los derechos de la seguridad social del personal del Poder Judicial, que vale decir, es contrario al criterio de la Corte Plena, por la forma omisa de realizar una consulta institucional, y por ignorar su opinión en contra del principio de la legalidad funcional de un Poder de la República. Recuérdese que la reforma al artículo 177, Constitucional, venía atribuida con la visión de reforzar la independencia judicial, incluida la de sus funcionarios, dentro de la cual estaría incluida la administración de fondo de pensiones. De hecho, el reconocimiento de algo tan importante, que tímidamente fue incardinado posteriormente en la Constitución Política de 1949, no llegó tan lejos para incluir -explícitamente- la irreductibilidad de los salarios de los funcionarios judiciales, como en otras latitudes, sin embargo si funcionó en nuestro país porque le permite gozar de los índices de independencia judicial que Costa Rica ha disfrutado comparativamente a nivel global, que es fruto claramente de la independencia económica del Poder Judicial. Esto ha sido en parte gracias al reconocimiento del régimen de empleo público que se fue consolidando a lo largo de la vida republicana de este país.

La Sentencia N° 1996-03575 de las 11:18 horas del 12 de julio de 1996, indicó sobre:

“… 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”.

Por Sentencia N° 1998-005795 de las 16:12 horas del 11 de agosto de 1998, que estableció que:

“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 independecia (sic) de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constiuye (sic) 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”.

Por Sentencia N° 1998-005798 de las 16:21 horas del 11 de agosto de 1998, esta Sala estableció que:

“La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículoss 9 y 154 (sic). 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 Organo (sic) Judicial se plantea hacia lo externo. El Organo (sic) 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, a esta independencia es a la que me referiré de seguido. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Organo (sic) 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”.

Esto no es poca cosa, toda vez que la organización y administración de la función judicial no solo no debe limitarse a la parte jurisdiccional como lo entiende la mayoría, sino que esta está complementada por otras funciones de organización, que le deberían ser respetadas como Poder de la República. Como se dijo línea atrás, la enmienda a la Constitución Política contempló no solo los aspectos jurisdiccionales, también operativos del Poder Judicial, por lo que estaría contemplado por el Constituyente originario en el artículo 167, porque desde el seno de la Corte Plena en 1956, y en la Asamblea Legislativa de 1957, adoptó desde esa época fundacional de la Segunda República, responder a las necesidades de los funcionarios en sus salarios y régimen previsional, un precepto toral para la democracia costarricense.

Es evidente, que el Fondo de Pensiones y Jubilaciones del Poder Judicial formaba parte esencial de la independencia económica del Poder Judicial de aquella época, y debe seguir siendo en la nuestra, según la doctrina del desarrollo progresivo, evolutivo y no regresivo de los derechos sociales. El Constituyente derivado, al acoger la visión de la Corte Plena, tomó un paso decisivo para receptar la gestión de forma independiente y autónoma del resto de los poderes políticos, lo que a su vez, permitió que dicha gestión y gobierno se hiciera dentro de los fines legales y constitucionales de la administración de justicia. Tampoco se puede afirmar, como lo dice la mayoría, que el reconocimiento del porcentaje constitucional del 6% haya sido llano y sin problema alguno; por el contrario, lo propio de ello es que la relación entre poderes ha sido pedregoso, áspero, abrupto, de modo que todo presupuesto se ha obtenido con gran esfuerzo o negociación oportuna de los representantes y autoridades del Poder Judicial. De hecho que el Constituyente previó tal posibilidad de negociación y consideración al establecer una segunda posibilidad de las rentas adicionales para los planes de inversión, entre otras cosas. El artículo 177, de la Constitución Política, con el 6% de los ingresos ordinarios del ejercicio económico de la República es un aspecto que ha servido de estímulo para el legislador para utilizar la órbita del Poder Judicial como un factor agregador de instituciones administrativas ajenas a la función judicial. Precisamente, la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, antes citada, termina con la declaratoria de inconstitucionalidad de normas del Código Notarial, por establecer un órgano de naturaleza administrativa como la Dirección de Notariado dentro del Poder Judicial con violación a los principios constitucionales de separación de funciones, reserva o exclusividad de jurisdicción, independencia y autonomía financiera del Poder Judicial, y el derecho a una justicia pronta y cumplida de los habitantes de la República.

En continuidad con la Sentencia N° 2017-09551 de las 11:40 horas del 21 de junio del 2017, se indicó también que:

“Por todo ello debemos reconocer que con el objeto de organizar racionalmente el trabajo, con eficacia, eficiencia, simplicidad y celeridad, toda función primaria debe estar acompañada de las otras funciones -no primarias del órgano constitucional-, y estar alineadas hacia la función primaria; es así como debe reconocerse que, 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. Evidentemente, en el contexto costarricense sería un serio contrasentido transitar en contra de una larga tradición legislativa de confiar las atribuciones a un único Poder (que en otras latitudes no existe), pero pensando en garantizar esos controles horizontales en un Poder Judicial independiente”.

Entonces, si lo relacionado a las pensiones y jubilaciones del Poder Judicial fueron incluidos como parte de esa independencia económica del Poder Judicial como tema de fondo desde 1956, es para los suscritos una razón adicional para procurar la aplicación del artículo 167, de la Constitución Política, pues el cambio de esquema para una desconcentración del órgano administrador se vino a modificar por una ley posterior. Esto abre el mal antecedente de que, en el futuro, mayorías transitorias en la Asamblea Legislativa incursionen en otros aspectos del manejo del personal del Poder Judicial.

Otra razón es que una mayoría reforzada garantiza no solo la independencia judicial desde el punto de vista institucional, sino para la persona del juez y jueza individualmente considerado, en el que se afectan los derechos económicos, sociales y culturales, establecidos a través de un régimen de la seguridad social y previsional. No se puede negar que el Poder Judicial forma parte de un todo, el “Estado”, también se debe hacer sentir su posición estratégica y clave dentro de su organización, con las funciones públicas de sus funcionarios que son altamente especializadas y apegadas al Derecho, según se describía antes en los antecedentes de este Tribunal, y cuya función es última en la solución de los conflictos y como pacificador de ellos. Esto claramente tiene un costo y sacrificio para su personal, que debe ser compensado por el “Estado”, pero más en una democracia funcional como la costarricense, que debe asumir no sólo la parte económica de su sostenimiento, sino de su protección.

La independencia judicial tiene como fin garantizar la imparcialidad judicial, lo que se comparte con la mayoría del Tribunal, aunque no con la claridad que desearía esta minoría, toda vez que el problema de la reforma al artículo 177, de la Constitución Política, cristalizó la necesidad muy sentida de proteger en términos generales la institucionalidad y la administración -también- de todo lo relativo al personal del Poder Judicial, lo cual debería ser resguardado celosamente, y de las cuales no puede dispensarse la oposición jurídica de la cabeza del Poder Judicial, de frente a los efectos regresivos de la legislación que se puedan producir en un futuro. Se debe traer a colación, la regla constante de la importancia de proteger la parte de la remuneración y lo relativo al régimen de pensiones de los jueces y juezas, de sus funcionarios, en ordenamientos jurídicos más importantes del mundo.

De este modo, los suscritos magistrados consideramos que la Ley N° 9544 del 24 de abril de 2018, contiene vicios esenciales en el procedimiento legislativo que lo afectan en su totalidad, consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia; y, con ello, es contrario al Derecho de la Constitución. En razón de lo anterior, resulta inconducente -para los suscritos juzgadores- entrar a analizar el resto de los alegatos de fondo formulados por los accionantes contra el contenido sustancial de la ley, salvo en aquellos supuestos en los que se requirió tomar posición para que existiera voto de toda conformidad (artículo 60.2, del Código Procesal Civil), lo cual está reflejado en la sentencia de la mayoría de esta Sala.

Luis Fdo. Salazar A. José Paulino Hernández G.

Carpeta # 18-007819-0007-CO Res. # 2021-11957 de 17.00 horas de 25 de mayo de 2021 Razones adicionales del Magistrado HERNANDEZ GUTIERREZ Sobre la contribución especial, solidaria y redistributiva a cargo de los jubilados y pensionados I.- Precisión inicial. Que en primer término debo advertir una vez más que desde mi perspectiva, estas acciones acumuladas deben estimarse por razones puramente procesales, sea por vicios esenciales del procedimiento en la formación de la ley, tal cual ha quedado expuesto en mi voto conjunto con el Magistrado Salazar Alvarado. Esta circunstancia haría innecesario ocuparme de los demás temas planteados por los actores. Sin embargo, ante la necesidad de crear mayoría y hacer voto conforme, he debido concurrir con mi opinión y voto para resolver algunos temas concretos, entre esos, el tema de la contribución especial, solidaria y redistributiva que pesa “además” sobre los pensionados y jubilados del Poder Judicial, de la Administración de Justicia. En este sentido estimo oportuno dejar sentadas las siguientes matizaciones y precisiones complementarias.

II.- Que en segundo lugar valga recordar que la competencia que la Constitución (CP) en el artículo 10 confiere a esta Sala por vía de acción de inconstitucionalidad, se realiza a través 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 (artículo 3, en relación con el 2, letra b], de la Ley de la Jurisdicción Constitucional), y se acuerda objetivamente y con total abstracción del caso que motiva la intervención (Cfr. Sala Constitucional, sentencia # 1147-90 de 16.00 horas de 21 de septiembre de 1990, considerando II, párrafo 2).

III.- Que en tercer lugar debe advertirse que en mi precitado voto particular conjunto queda establecida mi postura en el sentido de que sí existe un derecho fundamental a la jubilación o pensión en la judicatura, y en la Administración de Justicia costarricense, entendido en los mismos términos que lo estableció la Sala en la sentencia básica #1147-90:

“III.- En primer lugar, la Sala declara que si´ existe un derecho constitucional y fundamental a la jubilacio´n, a favor de todo trabajador, en general; derecho que, como tal, pertenece y debe ser reconocido a todo ser humano, en condiciones de igualdad y sin discriminacio´n alguna, de conformidad con los arti´culos 33 y 73 de la Constitucio´n, segu´n los cuales: … Esa conclusio´n se confirma en una serie de principios y normas internacionales de derechos humanos, que tienen, no so´lo el rango superior a la ley ordinaria que les confiere el arti´culo 7 de la Constitucio´n, sino tambie´n un amparo constitucional directo que pra´cticamente los equipara a los consagrados expresamente por la propia Carta Fundamental, al tenor del arti´culo 48 de la misma, (reformado por la Ley No. 7128 de 18 de agosto de 1989); entre esos derechos, concretamente, los reconocidos en los arti´culos 25, 28, 29 y 30- asi´ corregidos los que se invocan en la accio´n- del Convenio sobre la Seguridad Social, No. 102 de la OIT, en los cuales se establece: […] Otros textos internacionales reconocen tambie´n, o especi´ficamente el derecho a la jubilacio´n -por edad o vejez- (p. ej. art.16 Declaracio´n Americana de los Derechos y Deberes del Hombre; 22 y 25 Declaracio´n Universal de Derechos Humanos; 31 Carta Internacional Americana de Garanti´as Sociales; 5o Convencio´n sobre Igualdad de Trato en Materia de Seguridad Social, No. 118 OIT), o, en general, el Derecho a la Seguridad Social, dentro de la cual se tiene universalmente por comprendida la jubilacio´n (p. ej. art.11 Declaracio´n Americana de los Derechos y Deberes del Hombre; y 9° Pacto Internacional de Derechos Econo´micos, Sociales y Culturales).”.

IV.- Las notas distintivas de la labor jurisdiccional que derivan de los artículos 9, 153 y 154 CP, 8 de la Convención Americana sobre Derechos Humanos [CADH], y 5 de la Ley Orgánica del Poder Judicial [LOPJ], dan cuenta de una función esencial, basilar, en el contexto del Estado Constitucional y Social de Derecho, distinta a las otras funciones del Estado, pero que cohabita con éstas en una relación de colaboración y cooperación mutua. De la independencia judicial en general, y la económica en particular que se garantiza al Poder Judicial, emerge la potestad de éste para diseñar y promover un régimen de retiro acorde con esa realidad, que no solo garantice permanencia en el puesto, rectitud, objetividad, neutralidad e imparcialidad, al trabajador (a), servidor (a) o funcionario (a) activo, sino y muy especialmente, que le proteja durante la vejez, a él (o ella) o a sus seres queridos más cercanos en situación de desventaja o vulnerabilidad, frente a determinadas contingencias sociales.

V.- La existencia y validez constitucional de un régimen propio ha sido reconocido por esta Sala en su jurisprudencia, como resulta por ejemplo de esa misma Sentencia #1147-90, considerandos VI y VII. En su reciente opinión consultiva #2018-005758, se refirió a la trascendencia e importancia de que las personas que laboran en la Judicatura y sus órganos auxiliares, dispongan de un régimen de Jubilaciones y Pensiones, en los siguientes términos:

“VI.- … Lo que está claro es que la creación del régimen de pensiones del Poder Judicial, fue clave para la estabilidad de la carrera administrativa y judicial de sus servidores y funcionarios, y vino a ser un complemento fundamental de la carrera judicial, como garantía de la independencia de la judicatura. Permitió junto con ésta, darle estabilidad a los jueces y demás servidores y funcionarios estando activos e inactivos, lo cual hizo atractiva la carrera judicial para muchos juristas y favoreció con ello la estabilidad y especialización de muchos funcionarios en distintas ramas del aparato judicial, pero claramente, no fue creado como un elemento intrínseco de la independencia judicial (aspecto medular de la protección constitucional del 167 cuando habla de “estructura y funcionamiento), la cual se sustenta constitucionalmente en otros factores, como la existencia de una carrera que garantiza la objetividad en la selección de los jueces, basada en criterios de idoneidad y estabilidad, la independencia económica y política del órgano, entre otros; pero bien pudo el legislador optar por un régimen único para todos los empleados públicos o trabajadores en general, sin que pudiera afirmarse que eso le resta independencia al órgano. … Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, independientemente de si el régimen de pensiones es específico para los jueces o no. De hecho no todos los países tienen regímenes particulares para los jueces, pero sí se esmeran las democracias más consolidadas de cuidar la judicatura como pieza clave de la estabilidad del Estado de Derecho. Los países que han apostado por la fuerza de la ley y no de las armas para su estabilidad, dependen de la calidad de los jueces para tener calidad de democracia, pues éstos son los guardianes estratégicos del estado de derecho. En el caso de nuestro país, como bien lo ha señalado el Estado de la Nación, el Poder Judicial tiene la particularidad de que es un conglomerado de instituciones muy relevantes para el estado de derecho ( Fiscalía, Policía Judicial, Defensa Pública y Judicatura) y fue su fortaleza la que permitió en gran parte el desarrollo y consolidación de la democracia en el siglo XX en nuestro país. Así consigna el primer informe del Estado de la Justicia al señalar: […] En ese sentido fue un acierto del legislador, dotar de garantías e incentivos a la administración de justicia costarricense, porque sólo así podía materializarse el estado de derecho que surgió de la Segunda República, el cual dependería para su éxito, de un robusto régimen de legalidad y no ya -como se dijo-, de la fuerza de las armas, camino por el que habían optado la mayoría de los países del mundo, especialmente los latinoamericanos. No obstante, no puede afirmarse -desde la perspectiva de la mayoría de la Sala-, que el régimen de pensiones del Poder Judicial, sea parte del contenido esencial de la independencia judicial o que afecte su estructura y funcionamiento, aunque sí, como se dijo, ha funcionado históricamente como su necesario complemento y por el bien de la democracia costarricense, debe velarse porque sea los más estable y digno posible. …” (las bastardillas no están en el original).

VI.- Ciertamente la opinión mayoritaria llegó a conclusiones diversas. Sin embargo, desde mi perspectiva, la doctrina, las normas, los valores y principios que fundamentan dicha opinión, favorecen esa singularidad como parte de la autonomía de la jurisdicción, del Poder Judicial, y es la postura que se aviene con los precedentes y la doctrina clásica y básica del Tribunal (Cfr. Sentencia # 846-92 de 13.30 horas de 27 de marzo de 1992, considerando B, y # 3063-95 de las 15.30 horas de 13 de junio de 1995). Los Convenios e Instrumentos Internacionales sobre Derechos Humanos y su interpretación progresiva que se citan en dicho voto conjunto, son clara muestra de la necesidad de gozar y disponer de un régimen propio, que sirva de garantía de estabilidad para quienes optan por el sagrado ministerio de servir a la Judicatura, de modo que puedan dedicar y destinar su fuerza serena y claridad de espíritu al cumplimiento de los deberes inherentes a la seriedad de la Justicia, la más celosa y alta función del Estado, tal cual lo expresó el insigne jurista italiano PIERO CALAMANDREI, sin más preocupaciones que las del ejercicio de dicho cargo.

VII.- En materia de Derechos Económicos, Sociales y Culturales, el compromiso del Estado es la adopción de medidas “para lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales y sobre educción, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos, reformada por el Protocolo de Buenos Aires, en la medida de los recursos disponibles, por vía legislativa u otros medios apropiados.” (artículo 26 CADH; la bastardilla no está en el original); mientras que el numeral 2, relativo al deber de adoptar disposiciones de Derecho Interno, estatuye: “Si el ejercicio de los derechos y libertades mencionados en el Artículo 1 no estuviere ya garantizado por disposiciones legislativas o de otro carácter, los Estados Partes se comprometen a adoptar, con arreglo a sus procedimientos constitucionales y a las disposiciones de esta Convención, las medidas legislativas o de otro carácter que fueren necesarias para hacer efectivos tales derechos y libertades.”. Como parte de esa progresión, desarrollo, avance, y no regresión, se promulgó la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, que Costa Rica aprobó según Ley # 9394 de 8 de septiembre de 2016, y ratificó mediante Decreto Ejecutivo #39973 de 12 de octubre de 2016; su plexo normativo reconoce el derecho que tienen las personas a envejecer activamente, con dignidad, seguridad y protección, e impone al Estado la obligación de garantizar su goce y disfrute. Si el país cumplió con ese deber de crear el régimen, si este ya existe desde 1937, lo que tiene hoy día es una obligación negativa de no regresión, por un lado, y por el otro, una tarea positiva de garantizar el goce y disfrute del derecho mismo.

VIII.- Ingresos o fuentes de financiamiento del Fondo. Que con arreglo a la LOJP, el Fondo de Pensiones y Jubilaciones del Poder Judicial [FPJ o el Fondo], tiene los siguientes ingresos: i) un aporte obrero del 13% de los sueldos que devenguen los servidores judiciales; ii) un 13% de las jubilaciones y pensiones; iii) un aporte patronal del 14,36% sobre los sueldos y los salarios de los servidores, y iv) un aporte del Estado sobre los sueldos o salarios igual al establecido para el Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social (artículo 236). Además de esa cotización ordinaria o común, sobre los jubilados y pensionados, por Ley posterior, # 9697 de 05 de diciembre de 2019, denominada “Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria”, se establece [o estableció] y pesa una contribución especial, solidaria y redistributiva, cuando las prestaciones superen el límite máximo previsto en la ley, de conformidad con la tabla respectiva (artículos 236 bis y 225); se aclara que en ningún caso la suma de esa contribución y la totalidad de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo, podrá representar más del 55% respecto de la totalidad del monto bruto de la pensión; y se precisa que los recursos que se obtengan de esa contribución, ingresarán a éste; también se precisa que ese nuevo aporte especial propende a lograr el sostenimiento de las pensiones; la eliminación de las desigualdades en los beneficios sociales de las pensiones y jubilaciones, así como “en” las cargas tributarias, y dar sostenibilidad al sistema de pensiones.

IX.- Que por lo que concierne al tema de las fuentes de financiamiento de los regímenes de seguridad social y sus responsables, en general, adviértase que este ha generado disputas y controversias desde sus orígenes. Para algún sector de la doctrina, este debe estar a cargo de sus beneficiarios únicamente; otros señalan que en el tanto las prestaciones de la seguridad social son una prolongación del salario en el tiempo, como parte de él, las cotizaciones tienen que ser pagadas por el patrono. Para resolver la disyuntiva y crear el sistema, en algunas legislaciones se llegó al acuerdo que debía repartirse entre trabajadores y patronos. Así surgió el sistema de las cotizaciones como mecanismo para financiar la seguridad social. Posteriormente se revistió de carácter obligatorio, impositivo, con cargo al presupuesto nacional, y se le calificó de impuesto especial, específico, exacción tributaria o tasa parafiscal, por contraposición al general, destinado a satisfacer la necesidad humana cualquiera que sea su causa o circunstancia. La seguridad social costarricense sigue este modelo.

X.- Que en nuestro medio al establecerse los seguros sociales en beneficio de los trabajadores manuales e intelectuales, se dispuso que estarán regulados por el “sistema de contribución forzosa del Estado, patronos y trabajadores” (artículo 70 CP). Esta distribución de la contribución al presupuesto de la seguridad social, también conocida como cotización, es una obligación de carácter legal, ope lege, que pesa sobre sujetos específicos, determinados. Ninguna duda cabe que su cuantía o las fuentes de donde provienen, deban revisarse con alguna frecuencia, sea para mejorar el régimen respecto de las prestaciones de sus acreedores o beneficiarios, sea para mantener su existencia y sanidad financiera. Y nada excluye que en efecto el legislador dentro de esa libertad de configuración pueda crear nuevas fuentes de financiamiento encaminadas a garantizar la sostenibilidad y que estas pesen sobre otros sujetos o contribuyentes. Pero éstas en cuanto distintas de las previstas por el constituyente originario están sometidas al bloque de juridicidad para su validez y legitimidad constitucional, conforme lo tiene establecido la Sala en su doctrina jurisprudencial. Dentro de esta última categoría entra la contribución solidaria especial y redistributiva, que es un tributo especial, parafiscal, destinado a un fin específico; no es un impuesto general, que son los que están dirigidos a satisfacer necesidades generales de la nación, del país (artículo 121, inciso 13] CP).

XI.- Que en este caso concreto, por expresa definición de la precitada Ley #9697, la contribución se presenta como una técnica ideada por el legislador para: i) eliminar desigualdades en los beneficios o prestaciones: ii) eliminar desigualdades en las cargas tributarias; iii) llevar nuevos aportes para el sostenimiento del Fondo (artículo 3). Desde nuestra perspectiva, la contribución creada en la Ley # 9544, supuesta su validez constitucional en sí mismo, según lo tiene establecido la Sala en sus precedentes (sentencia # 846-92 de 13.30 horas de 27 de marzo de 1992) es incompatible con los principios constitucionales de razonabilidad, proporcionalidad e interdicción de la arbitrariedad, en la medida que su imposición no es el resultado de estudios técnicos previos específicos que sirvan tanto de justificación como de límite al ejercicio del poder.

XII.- No se trata de “establecer los impuestos y contribuciones nacionales”, a que alude la CP (artículos 70 y 121 inciso 13) donde reina la discrecionalidad y libertad legislativa de iniciativa. Son medidas legislativas puntuales, específicas, que incumbe a un sector determinado de la población, encaminadas a garantizar la solvencia y sostenibilidad del Fondo; como tales deben partir de un estudio técnico, actuarial, económico, que ponga de relieve cuáles son esas necesidades reales y cuáles las medidas posibles a implementar y sus responsables. El catálogo de estas debe superar el test de razonabilidad, idoneidad, adecuación constitucional, para su validez sustancial y conformidad con la Carta Política, tal como lo tiene establecido esta Sala en su copiosa jurisprudencia. En este sentido en la clásica y básica sentencia # 1739-92 de 11.45 horas de 1 de julio de 1992, se expresó:

“I- … c) Pero aun se dio un paso más en la tradición jurisprudencial anglo-norteamericana, al extenderse el concepto del debido proceso a lo que en esa tradición se conoce como debido sustantivo o sustancial -substantive due process of law-, que, en realidad, aunque no se refiere a ninguna materia procesal, constituyó un ingenioso mecanismo ideado por la Corte Suprema de los Estados Unidos para afirmar su jurisdicción sobre los Estados federados, al hilo de la Enmienda XIV a la Constitución Federal, pero que entre nosotros, sobre todo a falta de esa necesidad, equivaldría sencillamente al principio de razonabilidad de las leyes y otras normas o actos públicos, o incluso privados, como requisito de su propia validez constitucional, en el sentido de que deben ajustarse, no sólo a las normas o preceptos concretos de la Constitución, sino también al sentido de justicia contenido en ella, el cual implica, a su vez, el cumplimiento de exigencias fundamentales de equidad, proporcionalidad y razonabilidad, entendidas éstas como idoneidad para realizar los fines propuestos, los principios supuestos y los valores presupuestos en el Derecho de la Constitución. De allí que las leyes y, en general, las normas y los actos de autoridad requieran para su validez, no sólo haber sido promulgados por órganos competentes y procedimientos debidos, sino también pasar la revisión de fondo por su concordancia con las normas, principios y valores supremos de la Constitución (formal y material), como son los de orden, paz, seguridad, justicia, libertad, etc., que se configuran como patrones de razonabilidad. Es decir, que una norma o acto público o privado sólo es válido cuando, además de su conformidad formal con la Constitución, esté razonablemente fundado y justificado conforme a la ideología constitucional. De esta manera se procura, no sólo que la ley no sea irracional, arbitraria o caprichosa, sino además que los medios seleccionados tengan una relación real y sustancial con su objeto. Se distingue entonces entre razonabilidad técnica, que es, como se dijo, la proporcionalidad entre medios y fines; razonabilidad jurídica, o la adecuación a la Constitución en general, y en especial, a los derechos y libertades reconocidos o supuestos por ella; y finalmente, razonabilidad de los efectos sobre los derechos personales, en el sentido de no imponer a esos derechos otras limitaciones o cargas que las razonablemente derivadas de la naturaleza y régimen de los derechos mismos, ni mayores que las indispensables para que funcionen razonablemente en la vida de la sociedad. …”.

Es justamente ese estudio técnico el que ha de determinar el calado de las medidas, su necesidad, oportunidad, conveniencia, idoneidad, alcance, cuantía y los sujetos pasivos llamados a soportarlas. Desde luego que la discrecionalidad política de que goza el legislador, en este caso está limitada por razones de justicia, lógica, oportunidad y conveniencia, además de los derechos fundamentales, y la dignidad de las personas (cfr. artículos 15 a 19 de la Ley General de Administración Público -LGAP). Y es que esa medida en tanto afecta a los mismos beneficiarios del Fondo, a un grupo de personas específicas, debe ponderar sus implicaciones, valorar y sopesar el impacto que su implementación pueda suponer en los derechos adquiridos de estos, en su patrimonio. Desde luego que este derecho al igual que todos los Derechos Humanos, debe tener unas garantías mínimas encaminadas a preservar su núcleo duro, su contenido esencial, de modo que su titular pueda gozar y disfrutar del derecho mismo.

XIII.- Si por la complejidad de la dinámica parlamentaria, no fuere posible hacer acopio oportunamente de ese estudio técnico, o si este fuere insuficiente, existen antecedentes normativos que demuestran la existencia de otras técnicas menos invasivas, menos lesivas de los derechos fundamentales de las personas; la técnica utilizada en materia de seguridad social consiste en crear una especie de sistema de bandas, de límites, dentro de las cuales (desde y hasta) el órgano o ente encargado de la implementación y administración del Fondo, pueda fijar las medidas concretas, los topes, previo los estudios actuariales, financieros o económicos específicos que las determinen.

XIV.- Se ha dicho igualmente que había urgencia, apuro, en adoptar las medidas financieras objeto de impugnación, para evitar que el Fondo entrara en insolvencia, dentro de un plazo cercano, y que la idea era garantizar su sanidad. En este sentido debe tenerse presente que satisfacer esos fines es tanto legítimo como responsable, además de loable, pero no está exento de control jurisdiccional ex post, para determinar su legitimidad. La urgencia produce un empoderamiento del poder público, un incremento de los potestades de la autoridad, pero no genera ni crea una zona de inmunidad que antes no existía. Los derechos de las personas limitan el ejercicio de esos poderes, y facultan para su revisión por la jurisdicción.

XV.- Hay que recordar que por elementales razones de seguridad jurídica y confianza legítima, las garantías del artículo 34 CP, van dirigidas en primer término al legislador, al quehacer legislativo. No hay duda que quienes ingresan al régimen, al Fondo, y contribuyen periódicamente durante su vida laboral activa, mediante el aporte de una cuota determinada, a cambio de una contraprestación determinada o determinable, a disfrutar una vez que se adquiera el derecho, tienen derecho a que se les respete la cuantía de ésta, en términos iguales o idénticos a la prestación prometida. La confianza generada durante el periodo de formación o consolidación, no puede ser alterada o desconocida, mediante la implementación de medidas que tengan como efecto o produzcan por resultado un vaciamiento del contenido esencial del derecho fundamental implicado.

XVI.- Que en este caso la contribución se presenta y ofrece como una fuente de financiamiento nueva. Sin embargo, la Ley que la establece señala que se busca crear a lo interno del régimen un sistema más igualitario, más equitativo. Es decir que se trata de un instrumento ideado para nivelar diferencias; se pretende eliminar desigualdades en las prestaciones o beneficios, y en las cargas tributarias o aportaciones. Es este el verdadero objeto y fin que anima el ejercicio de ese poder reformador del legislador; su finalidad intrínseca es la de recortar las prestaciones más altas, bajar su monto, en la búsqueda de esa igualación. Pero ese mecanismo no necesariamente favorece a los menos aventajados, a los que menos reciben, en cuanto no incrementa la cuantía de las prestaciones prometidas. Lo obvio, lo evidente, es que sí genera el efecto contrario. Como bien es sabido, la igualdad opera entre iguales; nunca entre desiguales. Si para lograr esa aducida igualdad o nivelación, se introduce un deber de contribución adicional, “además de”, lo califica la ley (artículo 236 bis), necesariamente se debe contar con estudios técnicos que modulen el ejercicio de esa potestad, que pongan de relieve el necesario equilibrio que debe existir entre la sostenibilidad del Fondo, la necesidad a atender, y el goce y disfrute de las prestaciones en curso. De lo contrario, se cae en la arbitrariedad legislativa, en la confiscatoriedad, al fijar un tope, y privar del disfrute de una cuota sustantiva de la prestación, sin una justificación objetiva; si esta justificación no existe o está ausente la medida deviene en una operación materialmente expropiatoria, desproporcionada, por sus efectos e impacto en las finanzas de la persona jubilada o pensionada que oportunamente cotizó en proporción a su mayor ingreso. La forma de corregir desigualdades de origen, en lo que cabe, no puede ser a costa o con sacrificio y merma desmedida de los derechos fundamentales de algunas de las personas titulares. Quienes hoy disfrutan de una prestación en determinadas condiciones, la adquirieron al amparo de un régimen existente en un momento histórico determinado; su rol se ha limitado a cumplir con las condiciones o requisitos preestablecidos. De modo que los cambios y mejoras que deseen introducirse al régimen, en beneficio de todos, deben ser respetuosos de esos derechos, por un elemental principio de seguridad jurídica, cuyo primer destinatario y llamado a velar por su efectividad y respeto, lo es precisamente el legislador. De este toral se deriva otro de igual naturaleza y jerarquía, como lo es el de buena fe y su corolario de la confianza legítima, que no solo protegen esos derechos sino que limitan el ejercicio de aquel poder inconmesurable.

XVII.- El sistema ideal de un régimen jubilatorio, al que pareciera aspirarse, que presupone la igualdad de todos en todo, ha de inspirar la creación de un modelo nuevo, encaminado a fijar las condiciones del goce y disfrute de los futuros jubilados o pensionados. Pero la corrección del actual debe abordarse y acordarse con respeto de esos derechos y garantías de las personas titulares o beneficiarias. La aspiración de lograr la efectividad de los derechos, tal cual lo señala la Carta de las Naciones Unidas, en su artículo 55, inciso c), aprobada por Costa Rica, según Ley # 142 de 6 de agosto de 1945, en relación con el artículo 2 de la CADH, el deber de solidaridad, la buena fe, la dignidad humana, son principios que limitan el ejercicio del poder, en protección de las legítimas expectativas de quienes adquirieron y consolidaron su derecho al amparo de un régimen determinado.

XVIII.- Esta Sala desde sus tempranas sentencias dejó establecida la relación o semejanza existente, al menos de género a especie, entre salario y pensión. En la sentencia #1147-90 se expresó:

“X.- Por otra parte, la Sala observa que la disposicio´n impugnada del arti´culo 240 de la Ley Orga´nica del Poder Judicial es la u´nica de los diversos regi´menes de jubilacio´n vigentes en Costa Rica que impone la pe´rdida del derecho por vicios, faltas de moralidad o responsabilidades penales del beneficiario; con lo cual deviene tambie´n en inconstitucional por violacio´n del principio y derecho de igualdad, sin discriminacio´n, reconocido, en general, por el arti´culo 33, y, en especial, por los 57 y 68 de la Constitucio´n, estos u´ltimos respecto de las materias del salario y de las condiciones del trabajo, de los cuales la jubilacio´n, o es una especie, o justifica una aplicacio´n analo´gica de sus reglas y mandatos; principio y derecho de igualdad sin discriminacio´n, como se dijo invariablemente reconocido por las Constituciones y por los instrumentos internacionales sobre derechos humanos, tanto como derecho fundamental en si´, cuanto como criterio necesario de interpretacio´n y aplicacio´n de todos los dema´s derechos, fundamentales o no (ver citas en Considerando V supra).”.

Más tarde en sentencia # 10513-2011 de 15.01 horas de 10 de agosto de 2011, expresamente estableció que la jubilación o pensión substituye el salario. Esto implica por un lado que las garantías y normas de protección de que goza éste, permean a la segunda, entre ellas, la intangibilidad o irreductibilidad que sí aparece explícitamente consagrada en algunos textos constitucionales extranjeros que incluso sirvieron de consulta e inspiración a los Constituyentes de 1949, a propósito de la independencia judicial. De modo que entre un ingreso y otro, debe mediar una razonable equivalencia respetuosa de los derechos de las personas y la dignidad inherente. La pensión o jubilación también ha de servir para que quienes han dedicado su vida al servicio judicial, a la judicatura, gocen durante el periodo de retiro, durante su vejez, de un ingreso que les permita vivir con dignidad, envejecer en condiciones económicas adecuadas, proporcionalmente idénticas a las que tenían como trabajadores (as) o servidores (a) activos. La seguridad social en general, incardinada en el Capítulo de los Derechos y Garantías Sociales, conforma una de las normas que mejor dibujan la transformación del Estado liberal de Derecho, en un Estado Social o de bienestar, al situar a la persona, sea en su versión individual o como grupo [familia], en la base, en el centro de los quehaceres de los poderes públicos (Cfr. sentencia #846-92). Pero ese cambio, esa transición, no significa una ruptura del primero, sino un esfuerzo por perfeccionarlo, como lo señalan hoy día los estudiosos del Derecho Constitucional. La necesidad de proteger su dignidad, antes, durante y después de su existencia, obliga a adoptar y diseñar sistemas de retiro adecuados y oportunos. Como ya se ha dicho, este derecho no es ilimitado; como cualquier otro derecho está sujeto a condiciones y limitaciones:

“VII.- En todo caso, la Sala considera que el derecho a la jubilacio´n, en general o en los regi´menes especiales aludidos, no puede ser normalmente condicionado a la conducta de su titular, ya sea e´sta anterior o posterior a su consolidacio´n como derecho adquirido. En realidad, no se ignora que el de jubilacio´n, como cualquier otro derecho, esta´ sujeto a condiciones y limitaciones, pero unas y otras solamente en cuanto se encuentren previstas por las normas que las reconocen y garantizan y resulten, adema´s, razonablemente necesarias para el ejercicio del derecho mismo, de acuerdo con su naturaleza y fin. Esto no es otra cosa que expresio´n de un conocido principio del Derecho de los Derechos Humanos, que puede denominarse de proporcionalidad, y que se recoge, en general, como condicio´n sine qua non de las limitaciones y restricciones a tales derechos autorizadas excepcionalmente por los propios textos que los consagran; principio que se encuentra enumerado, por ejemplo, en los arti´culos 29.2 y 30 de la Declaracio´n Universal de Derechos Humanos, 29 y 30 de la Convencio´n Americana sobre Derechos Humanos, 5o del Pacto Internacional de Derechos Civiles y Poli´ticos, y 4 y 5 del Pacto Internacional de Derechos Econo´micos, Sociales y Culturales. En tales supuestos de razonabilidad y proporcionalidad estari´an, obviamente, las condiciones establecidas en los arti´culos 237 y 239 de la propia Ley Orga´nica del Poder Judicial, a las que se remite expresamente el 240 impugnado; y lo estari´an, au´n a falta de texto expreso, por ejemplo, la suspensio´n de la jubilacio´n cuando el beneficiario se reintegre al servicio activo remunerado, y mientras lo este´, o la pe´rdida de los derechos causahabientes en eventos como la mayoridad de los hijos o el matrimonio del co´nyuge supe´rstite.” (Sentencia # 1147-90).

Sin embargo, desde mi perspectiva, las reducciones o limitaciones deben acordarse a partir de estudios técnicos, por exigencias básicas de los principios de razonabilidad y proporcionalidad constitucional.

JOSE PAULINO HERNANDEZ G.

Res. n.°2021-011957 VOTOS SALVADOS Y NOTAS DE LA MAGISTRADA GARRO VARGAS Índice I.- Nota sobre los vicios en el procedimiento legislativo. La constitucionalidad del art. 234 bis del RAL II.- Razones diferentes sobre los vicios alegados en la sesión de la comisión especial del 27 de julio de 2017 III.- Razones propias sobre la inconstitucionalidad de la contribución especial solidaria y redistributiva en cuanto exceda el 50% del monto bruto de la pensión o jubilacion IV.- Razones diferentes sobre los alegatos relativos a la omisión de tomar en cuenta la diferenciación en la edad de jubilación entre mujeres y hombres

V. Nota separada

A.- Sobre la integración de la Sala B.- Sobre la alegada conexidad C.- Sobre el plazo de 18 meses previsto en el transitorio VI D.- Sobre el plexo normativo I.- NOTA SOBRE LOS VICIOS EN EL PROCEDIMIENTO LEGISLATIVO. LA CONSTITUCIONALIDAD DEL ART. 234 BIS DEL RAL En el sub lite, coincidí con la mayoría de esta Sala respecto de la desestimatoria de la acción de inconstitucionalidad en relación con los alegados vicios en el procedimiento legislativo.

No obstante, he estimado necesario consignar una nota en la que perfilo mis razonamientos respecto de los argüidos vicios y, en concreto, sobre la aplicación de un procedimiento especial regulado a través de lo contemplado en el actual art. 234 bis del Reglamento de la Asamblea Legislativa (RAL) (originalmente la ordenación de este procedimiento especial estaba contemplada en el art. 208 bis, incluso cuando se aprobó la ley n.°9544 del 24 de abril de 2018 ?Reforma Ley Orgánica del Poder Judicial (LOPJ)?; sin embargo, en el año 2019 se aprobó una reforma al RAL que corrió la numeración en cuestión).

En el caso concreto, en primer lugar, se cuestionó la constitucionalidad del art. 234 bis del RAL. Dicho numeral dispone lo siguiente:

“Artículo 234 bis.-Procedimientos Especiales Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda”.

En relación con la constitucionalidad de dicho procedimiento existen numerosos antecedentes de este Tribunal que avalan su constitucionalidad (ver considerando IX de esta sentencia). Lo anterior, partiendo del reconocimiento de la autodeterminación de la Asamblea Legislativa para regular su interna corporis según lo contempla expresamente el art. 121 inciso 22 de la Constitución Política, el cual a la letra dispone que le corresponde exclusivamente a la propia Asamblea Legislativa “darse el Reglamento para su régimen interior. Este una vez adoptado, no se podrá modificar sino por votación no menor de las dos terceras partes del total de sus miembros”. Por lo tanto, en línea con la referida disposición constitucional, la Asamblea Legislativa es autónoma en la regulación de sus procedimientos legislativos especiales siempre y cuando se apruebe por una votación no menor de las dos terceras partes de sus miembros y, además, en el procedimiento especial se respeten los valores y principios esenciales que deben cumplirse en todos los procedimientos parlamentarios, tales como el principio democrático ?fundamento último del propio RAL y los procedimientos especiales que a la luz de este se autoricen?, el pluralismo político, la protección de las minorías, la representatividad, los derechos funcionariales de los legisladores, así como las garantías de participación, publicidad y transparencia.

Conviene, a tales efectos, reiterar lo que ha indicado esta Sala respecto de la utilización de este mecanismo para aprobar procedimientos especiales a determinados proyectos de ley:

“Este Tribunal Constitucional entiende que el proyecto de adición del artículo 208 bis al Reglamento de la Asamblea Legislativa resulta conforme con el Derecho de la Constitución, siempre y cuando se disponga o interprete que la moción de orden ahí dispuesta debe ser aprobada por votación no menor de las dos terceras partes del total de los miembros de ese órgano, puesto que, establecer o disponer procedimientos especiales para el trámite de la reforma al Reglamento y ciertos proyectos de ley, supone una reforma o modificación del Reglamento, esto es, de los procedimientos ordinariamente dispuestos, de modo que para cumplir con lo estatuido en el numeral 121, inciso 22), de la Constitución Política y, sobre todo, para ser congruentes con los principios democrático y de participación de las minorías en la toma de una decisión fundamental o trascendental, debe requerirse tal mayoría calificada o agravada que supone la obtención de un consenso legislativo en el que concurran, para su respeto, distintas orientaciones político-partidarias o ideológicas. A lo anterior, debe agregarse que la observancia de los recaudos establecidos en el acuerdo interpretativo No. 4084 del 10 de junio de 1999 –por tratarse del ejercicio del poder de reforma- garantiza tales principios, tal y como lo expuso esta Sala en el Voto No. 8408 de las 15:24 hrs. del 3 de noviembre de 1999, parcialmente transcrito en el considerando tercero de esta sentencia. B) Observancia del principio de seguridad jurídica: En aras de ajustar el proyecto de adición al principio constitucional de la seguridad jurídica y de evitar cualquier factor sorpresivo, este Tribunal asume que debe disponerse o entenderse que la moción que reforma el reglamento, al establecer un procedimiento especial, debe indicar de forma suficientemente explícita, clara y precisa las diversas fases o etapas en la sustanciación de ese iter especial, de modo que como se requiere de las dos terceras partes del total de los miembros de la Asamblea Legislativa en su determinación, también, se respeten los principios democrático y de participación política y libre de las minorías”. (Opinión consultiva 398-2005, respecto del proyecto de adición de un art. 208 bis al RAL. Ver también las sentencias números 2007-2901, 2007-9699, 2008-07687).

Así, en los antecedentes de este Tribunal, se ha puesto de manifiesto que esta posibilidad es legítima bajo la condición de que la moción en cuestión para autorizar un procedimiento especial a la luz del art. 234 bis del RAL sea aprobada por votación no menor de las dos terceras partes del total de los miembros de ese órgano y que, además, se respete el principio de seguridad jurídica; de forma tal que, al adoptarse un procedimiento especial, la moción debe ser explícita, clara y precisa de las diversas fases o etapas en la sustanciación de este iter especial. Este, aunque singular por el acortamiento de ciertos plazos y la introducción de algunos límites o pautas en la tramitación, necesariamente debe ser conteste con el respeto de los principios constitucionales supra mencionados.

Ahora bien, en el caso concreto se cuestionó la utilización del procedimiento especial del art. 234 bis del RAL por el contenido del proyecto de ley que estaba bajo examen ?punto que fue rechazado por la mayoría de este Tribunal al interpretarse que el contenido de la reforma no incide en la independencia judicial? y no por el procedimiento que en sí mismo fue aprobado, lo que en todo caso fue examinado en la opinión consultiva n.°2018-5758 ?de la cual no participé? descartándose un vicio sobre el particular. En aquella oportunidad se afirmó que el procedimiento especial aprobado era respetuoso de los principios constitucionales de igualdad, razonabilidad, proporcionalidad, participación democrática y el derecho de enmienda. En esta oportunidad se cuestiona además la forma en que se aprobó la moción de orden. Respecto de esto también coincido con lo resuelto por la mayoría en el considerando XII de este voto, rechazando que haya existido algún vicio en el procedimiento parlamentario.

Adicionalmente, los accionantes adujeron la inconstitucionalidad del trámite parlamentario por la publicación tardía del texto sustitutivo aprobado en primer debate. Sobre este agravio conviene advertir dos aspectos.

En primer lugar, el procedimiento aprobado por la moción del art. 234 bis no preveía que, en el caso concreto, hubiera sucesivas publicaciones luego del dictamen del proyecto de ley en comisión, por lo que, a la luz del procedimiento aprobado, no era exigible en esa etapa del procedimiento parlamentario ?conocimiento de mociones de fondo en el Plenario? que se realizara una nueva publicación de proyecto de ley de previo a su votación en primer debate. De ahí que no se advierta ninguna infracción al procedimiento especial aprobado para este singular proyecto de ley. Recuérdese que la moción de procedimiento especial ordenaba lo siguiente:

“Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta”. (Lo destacado no corresponde al original).

Conteste con lo anterior, se debe decir que la obligación de realizar nuevas publicaciones del proyecto de ley, por introducción de textos sustitutivos o cambios sustanciales en su contenido, estaba prevista para la etapa a cargo de la Comisión Especial Dictaminadora. Por tanto, en sí mismo, el procedimiento especial no contemplaba esta obligación para el trámite en Plenario. En todo caso tal omisión no fue cuestionada por los accionantes. En segundo lugar, tal y como se refleja en el voto de mayoría, del análisis realizado de los escritos de interposición de las correspondientes acciones de inconstitucionalidad, no fue posible determinar cuáles fueron esos supuestos cambios sustanciales en el proyecto de ley que, en criterio de los accionantes, ameritaban una nueva publicación por tratarse, según su dicho, de un verdadero texto sustitutivo.

Por las características de este proceso de control de constitucionalidad la carga argumentativa la tienen los accionantes, de modo que si no existe una identificación de cuáles fueron los supuestos cambios sustanciales en el proyecto de ley, mal haría este Tribunal suplantando lo que a los accionantes les corresponde demostrar para afirmar la inconstitucionalidad de una ley en concreto.

Por lo dicho, coincido con la mayoría de este Tribunal en relación con la desestimatoria de estos extremos de la acción de inconstitucionalidad. Pero sí he considerado necesario hacer la salvedad de que todo procedimiento parlamentario aprobado a la luz del art. 234 bis debe ser respetuoso de los principios constitucionales acá enumerados, pues aunque se trata de un procedimiento especial ?que por su naturaleza no se puede aplicar con la rigurosidad del procedimiento ordinario, pues de lo contrario pierde su especificidad? sí debe respetar y no neutralizar los principios cardinales del procedimiento parlamentario señalados.

II.- RAZONES DIFERENTES SOBRE LOS VICIOS ALEGADOS EN LA SESIÓN DE LA COMISIÓN ESPECIAL DEL 27 DE JULIO DE 2017 En la acción de inconstitucionalidad tramitada en el expediente n.°18-14168-007-CO se cuestionó que la Comisión Especial designada para conocer del proyecto de ley, previo al dictamen correspondiente, aprobó un nuevo texto sustitutivo que no fue analizado, ni discutido ampliamente en la sesión de 27 de julio de 2017. En esa misma sesión, como se apuntó, se procedió a dictaminar el proyecto de ley. Los accionantes reclaman que de acuerdo con la moción aprobada para tramitar dicho expediente, según el procedimiento autorizado mediante el entonces art. 208 bis del RAL, se tenía previsto que, ante la aprobación de un texto sustitutivo, se debía suspender la tramitación del proyecto de ley. Cuestionaron los accionantes que, en consecuencia, la sesión extraordinaria de la Comisión Especial estuvo viciada de nulidad, puesto que el proyecto de ley técnica y jurídicamente se encontraba en suspenso hasta tanto no se publicara el texto en el Diario Oficial La Gaceta.

Ta y como lo anoté supra, el texto de la moción que reguló el procedimiento legislativo que se aplicaba para este específico proyecto disponía, sobre este punto en concreto, lo siguiente:

“h-Si durante el conocimiento del expediente en su trámite en comisión fuese aprobada una moción de texto sustitutivo o cuando la comisión acuerde cambios que modifiquen en forma sustancial el proyecto de ley, la Presidencia de la Comisión solicitará al Directorio Legislativo acordar su publicación en el Diario Oficial La Gaceta con el fin de salvaguardar el Principio Constitucional de Publicidad y se suspenderá el conocimiento del proyecto, procediérrelose (sic) también a hacer las consultas correspondientes. Si transcurridos ocho días hábiles no se recibiere respuesta a las consultas obligatorias a que se refiere este inciso h), se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto”. (Lo destacado no corresponde al original).

Ahora bien, de la atenta revisión del iter parlamentario se pudo constatar que el 27 de julio de 2017 los diputados y diputadas de la Comisión Especial presentaron y aprobaron un nuevo texto que posteriormente se dictaminó con el voto afirmativo de ocho legisladores y un voto en contra. Seguidamente, se aprobaron mociones para publicar el texto y realizar consultas institucionales a la Corte Suprema de Justicia, a la Procuraduría General de la República, Ministerio de Hacienda, Banco Central, entre otras instituciones y, además, los gremios del Poder Judicial. Posteriormente, no fue sino hasta el 4 de setiembre de 2017 que se inició la discusión de proyecto de ley en su trámite en el Plenario, abriéndose, a partir de ese momento, la posibilidad de presentar las mociones de fondo.

El reproche de los accionantes se centra justamente en que en la sesión del 27 de julio de 2017, al aprobarse la moción de texto sustitutivo, lo que correspondía era suspender el plazo para publicar y realizar consultas y, hasta después de ello, realizar el dictamen atinente.

No obstante, luego de revisar el trámite en cuestión, estimo que ello no implicó un vicio invalidante del procedimiento parlamentario. No es que sea un vicio sin importancia, tal y como se sostiene en el voto de la mayoría, sino que no se tradujo en una efectiva lesión al principio democrático, ni a las garantías de participación y de transparencia que se pretendían cumplir con el trámite aprobado en el caso concreto. En el considerando XV de la sentencia se explica el iter ocurrido respecto de la aprobación de un cuarto texto sustitutivo, el cual estaba basado en los criterios técnicos del informe del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE). La aprobación de dicho texto sustitutivo, introducido en comisión en la sesión del 27 de julio de 2017, implicaba, según las reglas del procedimiento aprobado a la luz del art. 208 bis del RAL, que la propia comisión debía acordar la publicación del texto en el Diario Oficial La Gaceta, suspender el conocimiento del proyecto y realizar las consultas pertinentes. Ello no se cumplió rigurosamente en el caso concreto, pues, según se constató, en la referida sesión se aprobó el nuevo texto sustitutivo y se procedió a dictaminar el proyecto de ley. El motivo de lo anterior está sustentado en el vencimiento del plazo otorgado a la comisión para rendir el dictamen correspondiente. Ahora bien, el hecho de que no se hubiera suspendido la sesión en dicha oportunidad no se tradujo en un vicio esencial del procedimiento parlamentario. Lo anterior es posible afirmarlo a partir de la constatación de que el proyecto de ley y los respectivos dictámenes sí fueron enviados a publicación en el Diario Oficial La Gaceta, sí se realizaron las consultas correspondientes y se suspendió de facto el conocimiento del proyecto de ley bajo análisis. Obsérvese que la discusión por el fondo inició hasta el día 4 de setiembre de 2017, es decir dos meses después, fecha a partir de la cual se abrió la posibilidad de realizar las mociones de fondo que los legisladores estimaran pertinentes y seguir adelante con el trámite parlamentario.

Entonces, a partir del marco fáctico expuesto y de la constatación de que se cumplieron los propósitos ideados en el procedimiento, a saber, dar un plazo de espera para darle publicidad al texto, realizar las consultas correspondientes y dar margen de análisis para incluir las mociones que los diputados y las diputadas estimaran procedentes, no se podría concluir que acá se ha producido un vicio invalidante del trámite parlamentario. Es preciso señalar que la suspensión contemplada en la moción del procedimiento especial no es un fin en sí mismo, sino que ello respondía a un propósito superior como lo era garantizar el propio principio democrático y la suficiente publicidad del procedimiento parlamentario, lo cual, como se verificó, fue cumplido.

En consecuencia, a partir de las anteriores reflexiones, considero que en el sub examine no se configuró un vicio esencial en el procedimiento legislativo.

III.- RAZONES PROPIAS SOBRE LA INCONSTITUCIONALIDAD DE LA CONTRIBUCIÓN ESPECIAL SOLIDARIA Y REDISTRIBUTIVA EN CUANTO EXCEDA EL 50% DEL MONTO BRUTO DE LA PENSIÓN O JUBILACION La suscrita magistrada, por sus propias razones, declara con lugar este extremo de la acción de inconstitucionalidad, ordenando anular parcialmente lo dispuesto en los arts. 236 y 236 bis de la LOPJ; asimismo, advierte que la inconstitucionalidad que declara afecta los excesos de la contribución especial solidaria respecto de ese 5% y no el resto de las deducciones que se apliquen por ley a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial.

En primer lugar, resulta preciso señalar que en la sentencia n.°2020-19274 que se invoca como pivote de la decisión (considerando XLI de esta sentencia), salvé el voto y realicé las siguientes consideraciones:

“CONSIDERACIONES PROPIAS Sobre el particular, la mayoría de esta Sala consideró que —como parte de la protección al derecho a la seguridad social y principios de razonabilidad y proporcionalidad— para que los gravámenes establecidos en las Leyes números 9383 y 9380 sean compatibles con el Derecho de la Constitución (principios de razonabilidad y proporcionalidad) es necesario que sean ajustados a lo establecido en el art. 71 párrafo 2° del Convenio n.°102 de la OIT, así como la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, en cuanto no deben exceder el 50% del monto bruto que corresponda al jubilado o pensionado.

Debo manifestar que comparto varias de las premisas suscritas por la mayoría, tales como la ineludible protección del núcleo esencial de los derechos fundamentales invocados, sea, la seguridad social y el derecho a la jubilación. También la necesidad de observar las obligaciones internacionales adquiridas en virtud de la aprobación y ratificación de instrumentos internacionales en materia de derechos económicos, sociales, laborales, así como el deber de garantizar la protección específica para las personas adultas mayores. Sin embargo, difiero de las conclusiones a las que arriba esa mayoría, por las razones que de seguido explicaré.

En primer lugar, no se puede obviar que resulta razonable lo manifestado por el Ministro a.i. de Hacienda, en el sentido de que el propósito de la normativa impugnada es que el Estado cuente con mayores ingresos para enfrentar sus egresos por el pago de prestaciones de los regímenes especiales de pensiones y contribuir de esta manera con la sostenibilidad financiera de éstos en el corto, mediano y largo plazos, así como el que las cotizaciones sobre los montos de pensión y salarios se realice de manera gradual y solidaria, de forma que las personas que reciban ingresos más altos coticen proporcionalmente más y que quienes reciben menos lo hagan en menor porcentaje. Además, acojo lo informado por la PGR, cuando afirma que la contribución especial solidaria creada mediante la Ley n.°9383 no es excesiva ni irrazonable, sobre todo si se toma en cuenta que aplica solo después de que la prestación económica que recibe el pensionado supere el equivalente a 10 veces el salario base más bajo pagado por la Administración Pública. El monto de ese salario, para el primer semestre del año 2017, ascendía a 260.250.00 colones, por lo que la contribución especial solidaria se empezaba a pagar a partir de los 2.602.500,00 colones. En otras palabras, los pensionados cuya prestación económica no supere ese monto, no están afectos a la contribución especial solidaria que se solicita anular. Asimismo, según destacó la PGR, la contribución especial solidaria cuestionada en esta acción es escalonada o progresiva, lo que permite afirmar que el legislador respetó el principio constitucional de proporcionalidad.

Por otra parte, considero pertinente examinar en detalle las normas cuestionadas. Obsérvese que la cotización establecida Ley n.°9380, denominada “Porcentaje de cotización de pensiones y servidores activos para los regímenes especiales de pensionados y servidores activos para los regímenes especiales de pensiones”, establece que la cotización para los servidores activos, pensiones y el Estado será de un 9% del respectivo monto de salario o pensión que se reciba, y que el Poder Ejecutivo podría aumentar el porcentaje de cotización hasta un máximo de un 16% “cuando los estudios técnicos así lo recomienden”. De manera que la propia norma establece una garantía de razonabilidad y proporcionalidad para el establecimiento de los respectivos montos de cotización. Estos se establecerán con fundamento en estudios técnicos y, además, dichas cotizaciones deberán realizarse de manera proporcional, según los montos de salario o de pensión de que se trate, empezando por la base del 9% para los montos más bajos, hasta llegar al porcentaje más alto, de conformidad con el incremento de la pensión o de salario respectivo. Así que dicha norma, prima facie, no resulta contraria al Derecho de la Constitución; lo que no implica, claro está, que cada administrado pueda cuestionar en las vías ordinarias de legalidad el monto de cotización respectivo, cuando estime que no se cumplen con las condiciones de legitimidad del correlativo acto administrativo que impuso un monto de cotización en concreto.

Ahora bien, se cuestiona este monto de cotización sumado al de las contribuciones especiales solidarias, reguladas en la Ley n.°9383 de 29 de julio de 2016, denominada “Ley Marco de Contribución Especial de los Regímenes de Pensiones”. Del atento análisis de dicha norma es preciso resaltar varios aspectos:

La contribución especial, solidaria y redistributiva prevista en la norma está prevista para los regímenes de pensiones que no tienen un fondo propio operativo, por lo que recaen sobre el Presupuesto Nacional. La cotización establecida en esta norma se empieza a pagar a partir de un monto que excede diez veces el salario base más bajo pagado por la Administración Pública, según la escala de sueldos de la Administración Pública emitida por la Dirección General de Servicio Civil. Esto, según informó la PGR, significa que el monto se empezará a pagar a partir de un monto de pensión de 2.602.500,00 colones. En otras palabras, pensiones menores a este monto, no están sujetas al pago de la contribución solidaria. Los montos de estas contribuciones son escalonados, según los excesos en pensión que superen la suma resultante de diez veces el salario base más bajo pagado en la Administración Pública (ver art. 3, incisos a-f). En ningún caso la suma de la contribución especial y la totalidad de las deducciones que se apliquen a todos los pensionados y jubilados cubiertos por la presente ley podrá representar más del 55% respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario. Para los casos en los cuales esta suma supere el 55% respecto de la totalidad del monto bruto de la pensión, la contribución especial se reajustará de forma que la suma sea igual al 55% respecto de la totalidad del monto bruto de la pensión. Se tenía previsto que los recursos que se obtuviesen con la contribución especial ingresarían a la caja única del Estado; pero, el Poder Ejecutivo debía garantizar que dichos recursos se asignaran para el pago oportuno de los regímenes especiales de pensiones con cargo al Presupuesto Nacional. La contribución se aplica hacia el futuro, de manera que no afecta montos por concepto de pensiones ya recibidas por sus beneficiarios.

A partir del análisis de las normas cuestionadas se puede concluir lo siguiente: Este tipo de contribuciones no afectan dineros ya ingresados en el patrimonio de las personas beneficiarias. El monto que se deja incólume o libre de esta contribución solidaria —2.602.500,00 colones— es a simple vista razonable para garantizar sobradamente el derecho a una vejez digna y decorosa de los asalariados, una vez retirados de la vida laboral activa (art. 17 de la Convención Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores, Ley n.°9394). Además, como lo exige el Pacto Internacional de Derechos Económicos, Sociales y Culturales (PIDESC), las contribuciones solidarias —como una forma de entender una limitación al derecho a la jubilación— son compatibles con la naturaleza de este derecho y su finalidad —ofrecer una vejez digna—; pero también tiene por objeto “promover el bienestar general en una sociedad democrática” (art. 4 PIDESC). Obsérvese que el motivo de la contribución es redirigirlo al pago de pensiones que se vienen cancelando con montos del Presupuesto Nacional, esto es, para evitar lo que ha supuesto una onerosa carga para el Estado. De manera que estas específicas contribuciones sobre unas pensiones que no tienen un fondo propio, tienen como propósito ser reinvertidas para garantizar el pago de las propias pensiones y procurar el interés general de los beneficiarios de estas pensiones. No puedo obviar acá lo informado por las autoridades del MTSS y DNP: que las remuneraciones por concepto de pensiones con cargo al Presupuesto Nacional alcanzan un 10% de dicho rubro; es decir, de cada 100 colones pagados a los pensionados de estos regímenes, 90 colones se cubren con impuestos sobre el resto de los costarricenses —o bien a través de deuda— y solamente 10 colones se logran percibir de las cotizaciones de funcionarios activos como de los jubilados. Entonces, en este específico régimen de pensiones es imperioso tomar medidas correctivas en aras de velar y resguardar los intereses generales, sin demeritar el núcleo esencial del derecho a la jubilación que —en las normas impugnadas— es respetado, pues el monto que permanece incólume es absolutamente razonable, si lo que se pretende es enfrentar con dignidad y decoro el período de jubilación.

Paralelamente, en cuanto a las rebajas aplicadas por la contribución especial solidaria, cabe observar que en las normas examinadas se establecen topes que se deben respetar de la pensión (un 55% respecto de la totalidad del monto bruto de la pensión). Como se ha dicho, los montos rebajados por este concepto son escalonados, dependiendo del propio monto que se reciba por pensión. Ahora bien, el establecer un tope máximo de la sumatoria de las rebajas, no quiere decir que —automáticamente— a todas las personas pensionadas se les va a rebajar hasta el 55% de la pensión, porque esto dependerá, correlativamente, de los ingresos que reciben por pago de pensiones. Es decir, la norma sí establece rangos, dependiendo del monto de la pensión que reciba y no en todos los supuestos, necesariamente, se va a rebajar hasta un 55% como límite entre la sumatoria de rebajas a aplicar.

En lo personal me he apartado del criterio de la mayoría al considerar que, en el caso concreto de las específicas pensiones que son financiadas con el Presupuesto Nacional, el tope del 55% no resulta irrazonable ni desproporcionado, tomando en cuenta todos los elementos acá examinados y detallados supra.

En segundo lugar, no estimo que resulte de aplicación lo señalado en el art. 71 del Convenio 102 de la OIT. Nótese que dicho Convenio contempla normas concretas relativas a las prestaciones en vejez (arts. 25-30), las cuales refieren que la prestación o pago periódico se calculará de conformidad con las disposiciones de los arts. 65, 66 y 67 que establecen los montos mínimos de pago de estas prestaciones. Adicionalmente, el art. 71 no puede verse desvinculado de su contexto general, concretamente, el párrafo primero que señala lo siguiente:

“1. El costo de las prestaciones concedidas en aplicación del presente Convenio y los gastos de administración de estas prestaciones deberán ser financiados colectivamente por medio de cotizaciones o de impuestos, o por ambos medios a la vez, en forma que evite que las personas de recursos económicos modestos tengan que soportar una carga demasiado onerosa y que tenga en cuenta la situación económica del Miembro y la de las categorías de personas protegidas” (lo destacado no corresponde al original).

Esa norma nos ilustra y contextualiza que estas normas están previstas como mínimos para no afectar a las personas con recursos económicos más modestos, razón que me lleva a excluir su aplicación a estas pensiones que superan más de los 2.602.500,00 de colones. En estos casos, sin mayor esfuerzo, se puede observar que la tasa de reemplazo y el monto recibido es muy superior al monto mínimo de prestaciones por vejez establecidas en el Convenio de la OIT. Por eso estimo que estas normas invocadas por la mayoría no son de aplicación al caso bajo examen.

Obsérvese que el propio nombre del Convenio, que data del año 1952, indica que se trata de “normas mínimas”. Por dicha razón, el Estado de Costa Rica no estaría incumpliendo ninguna obligación de carácter internacional al autorizar legislativamente la aplicación de estas contribuciones solidarias. Asimismo, la aplicación de los instrumentos internacionales debe realizarse con sumo rigor, por lo que no considero legítimo la forzada asimilación que hace la mayoría del Tribunal al señalar que donde se dice “asalariado” deba entenderse incluidos, también, los jubilados.

Sólo como un elemento útil en el plano hermenéutico, es pertinente mencionar que la propia OIT dictó la Recomendación 202, “Sobre los pisos de protección social, 2012”, con el propósito de proporcionar “orientación a los Miembros para establecer pisos de protección social adaptados a las circunstancias y niveles de desarrollo de cada país, como parte de sistemas integrales de seguridad social”. En este instrumento, en el marco de estrategias de extensión de la seguridad social, se pretende poner en práctica pisos de protección social, que aseguren progresivamente niveles más elevados de seguridad social para el mayor número de personas posible, según las orientaciones de las normas de la OIT relativas a esta materia. Entonces, se observa que el propósito de estos instrumentos es procurar mínimos de seguridad social. Dicha Recomendación reconoce la posibilidad de gravar las pensiones en aras de la sostenibilidad de los propios regímenes de pensiones. Así, por ejemplo, el art. 1° inciso 3), reconoce una serie de principios. A mi juicio, los relevantes para examinar la cuestión son los siguientes:

“Reconociendo la responsabilidad general y principal del Estado de poner en práctica la presente Recomendación, los Miembros deberían aplicar los siguientes principios: (…)

• h)solidaridad en la financiación, asociada a la búsqueda de un equilibrio óptimo entre las responsabilidades y los intereses de aquellos que financian y se benefician de los regímenes de seguridad social; j) gestión financiera y administración sanas, responsables y transparentes; k) sostenibilidad financiera, fiscal y económica, teniendo debidamente en cuenta la justicia social y la equidad; (…)” (lo destacado no corresponde al original).

Igualmente, al establecer los pisos nacionales de protección social, la Recomendación sugiere lo siguiente:

“11.

• 1)Los Miembros deberían considerar una serie de métodos para movilizar los recursos necesarios a fin de asegurar la sostenibilidad financiera, fiscal y económica de los pisos de protección social nacionales, tomando en consideración la capacidad contributiva de los distintos grupos de población. Esos métodos, utilizados individualmente o en combinación, podrán consistir en hacer cumplir efectivamente las obligaciones tributarias y contributivas, redefinir las prioridades de gasto o crear una base de recaudación más amplia y suficientemente progresiva.
• 2)A los efectos de la aplicación de estos métodos, los Miembros deberían considerar la necesidad de adoptar medidas destinadas a prevenir el fraude, la evasión fiscal y el impago de las cotizaciones” (lo destacado no corresponde al original).

A partir de lo expuesto, estimo que las normas impugnadas lo que procuran es resguardar mínimos de seguridad social a sectores más vulnerables y de menores ingresos. No así para pensiones que superan sobradamente estos pisos de la seguridad social. Incluso, como se ha visto, las propias recomendaciones de la OIT apuntan a considerar mecanismos justamente para asegurar la sostenibilidad financiera, fiscal y económica de los pisos de protección social nacionales, tomando en cuenta, precisamente, la capacidad contributiva de los distintos grupos poblacionales. Por lo tanto, no se puede asimilar la aplicación de una norma, que está pensada para garantizar mínimos de seguridad social, a personas jubiladas que reciben por concepto de pensión montos que superan sobradamente estos estándares de seguridad social.

Por lo demás, como se ha examinado, estas medidas además de que garantizan los mínimos de seguridad social, al dejar incólume un elevado monto de la pensión, también persiguen la propia sostenibilidad del régimen fiscal nacional, pues, ya se ha dicho, estas pensiones no tienen un fondo propio de financiamiento, sino que se pagan mayoritariamente con montos derivados del Presupuesto Nacional. Esto pareciera una aplicación práctica del propio principio recomendado por la OIT de “solidaridad en la financiación, asociada a la búsqueda de un equilibrio óptimo entre las responsabilidades y los intereses de aquellos que financian y se benefician de los regímenes de seguridad social”.

Por todo lo expuesto, estimo que en el caso concreto no resulta de aplicación la norma invocada por la mayoría de esta Sala, en la medida que está prevista para resguardar mínimos de seguridad social a montos salariales que son bajos y lo que se procura es evitar que sobre estas personas recaiga un peso tributario excesivo que los despoje de un monto razonable y apropiado para llevar adelante una vida digna. La lógica de dicha normativa no se extrapola al caso concreto, en el que, más bien, se deben observar y resguardar los principios de razonabilidad y proporcionalidad. Dichos principios, en mi criterio, son plenamente respetados en la medida que aseguran un monto que a simple vista luce suficiente para tener una vejez digna, responde a una necesidad solidaria y de equidad por las deficiencias en el sostenimiento de este régimen de pensiones que recae sobre el Presupuesto Nacional y establece porcentajes de contribución escalonados aparejados a los montos de pensión que se reciben. Además que, como se explicó en el voto de mayoría, se trata de una medida legislativa que encuentra un razonable sustento financiero y técnico.

En consecuencia, considero que este extremo de la acción de inconstitucionalidad debe ser desestimado por las razones invocadas”.

En el caso concreto no me contradigo, pues como se desprende de la atenta lectura de mis planteamientos la valoración realizada estaba ceñida al específico régimen de pensiones examinado en aquella oportunidad. Como destaqué en dicho voto, el Ministro de Hacienda informó que las pensiones especiales con cargo al “Presupuesto General de Gastos de la Administración Pública” ?como aquellas? no poseen un “fondo” propio y no ganan capitalización; esto porque los ingresos por concepto de cotizaciones estatales, obreras y patronales son mucho menores que los egresos derivados del pago de los beneficios jubilatorios. Asimismo, son canceladas de los impuestos y/o por medio de dineros obtenidos de préstamos, que generan pago de intereses para el Estado, con implicaciones para el endeudamiento. Por cada 100 colones en el régimen, 90 colones deben financiarse con impuestos o deuda, pues existen 60.000 pensionados y solo 20.000 cotizantes. Asimismo, las autoridades del Ministerio de Trabajo y Seguridad Social (MTSS), así como la Dirección Nacional de Pensiones (DNP) explicaron que, en ese específico sistema, el sistema de contribución especial solidaria pretendía eliminar privilegios a favor de un grupo de pensionados que actualmente pagan menos del 10% del monto que reciben y el 90% restante de su pensión la paga el resto de los costarricenses a través de impuestos o mediante el endeudamiento público. Por lo tanto, debo aclarar que los argumentos de la acción de inconstitucionalidad supra citada, en la que descarté la inconstitucionalidad del 55%, no se aplican al caso que ahora se examina, debido a la diversa naturaleza del régimen y de los específicos estudios técnicos que motivaron la legislación bajo análisis.

Debe quedar claro que comparto la premisa de que el derecho a la jubilación no es un derecho absoluto, sino que admite limitaciones en virtud de un interés superior que engloba a la generalidad de beneficiarios del sistema, pero tales limitaciones deben ser razonables y encontrar un sustento que les confiera una adecuada fundamentación. En el caso bajo análisis, por las propias características del Régimen de Jubilaciones y Pensiones del Poder Judicial y por las específicas cargas sociales que pesan sobre las personas jubiladas adscritas a este régimen, así como también por los propios estudios técnicos aportados, considero que el tope de un 55% de deducciones respecto del monto bruto de la jubilación sí es irrazonable y desproporcionado. Coincido, eso sí, con las razones brindadas por la mayoría para estimar que la figura de la contribución especial, solidaria y redistributiva no es en sí misma inconstitucional por ser una contribución parafiscal con un claro propósito de interés económico y social (considerandos XLV, XLVI, XLVII, L, LI, LIV y LVIII), pero sí resulta confiscatoria en cuanto exceda el 50% de las cargas que debe soportar una persona respecto del efectivo goce de su pensión o jubilación.

En el sub examine, según lo informó la Vicepresidenta de la Corte Suprema de Justicia, los jubilados del Régimen de Jubilaciones y Pensiones del Poder Judicial tienen varias cargas que no están contempladas para otros fondos. Así, tenemos que los jubilados al Fondo del Poder Judicial, a diferencia de otros regímenes, sí siguen aportando de por vida al propio Fondo. Al respecto y en lo conducente los arts. 235 y 236 de la LOPJ regulan lo siguiente:

“Art. 235- Con las cotizaciones de los servidores judiciales, el Estado y el Poder Judicial, la Junta conformará un Fondo, el cual se incrementará con los réditos producidos por sus inversiones.

Art. 236- El Fondo de Jubilaciones y Pensiones del Poder Judicial tendrá los siguientes ingresos:

• 1)Un aporte obrero de un trece por ciento (13%) de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo, porcentaje que se retendrá en el pago periódico correspondiente”.

Al respecto, debe aclararse que el apoyo de las personas jubiladas con el sostenimiento del propio fondo del Poder Judicial no es algo novedoso incluido en la ley que acá se impugna, porque ya con anterioridad se tenía contemplado lo siguiente:

“Art. 236.- Para atender el pago de las jubilaciones y pensiones, créase un Fondo que será formado con los siguientes ingresos:

1.- El nueve por ciento (9%) de todos los sueldos de los servidores activos, así como de las jubilaciones y pensiones a cargo del Fondo. Este porcentaje se retendrá mensualmente. Por razones de necesidad del Fondo y con base en estudios actuariales, la Corte podrá aumentar este porcentaje hasta un quince por ciento (15%)”.

En consecuencia, se aprecia que históricamente los jubilados del Fondo de Pensiones de Poder Judicial siguen aportando y engrosando el propio Régimen.

Lo que sí resulta novedoso es que además del mantenimiento al Fondo, la normativa bajo análisis introdujo un rebajo para el sostenimiento de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial. Al respecto, el art. 239 ordena que la Junta se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Adicionalmente, los pensionados y jubilados deben seguir cancelando su cotización al Sistema de Enfermedad de la Caja Costarricense de Seguro Social y, en los casos en que corresponda, pagar el impuesto sobre la renta y la contribución especial, solidaria y redistributiva de los pensionados y jubilados del Fondo.

Además de lo anterior, se hace preciso traer a colación los estudios técnicos que sirvieron de insumo para el establecimiento de un porcentaje de la contribución especial, solidaria y redistributiva, concretamente el “Producto número 6, Informe Final: Recopilación e informe final: conclusiones y recomendaciones. Versión final” respecto del proyecto “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” del mes de julio del año 2017 (visible en la página https://fjp.poder-judicial.go.cr/index.php/2013-08-08-15-26-57/estudios-actuariales-fondo-de-jubilaciones/category/352-productos y prueba para mejor resolver solicitada por este Tribunal). En dicho insumo técnico se evaluaron varios escenarios de posibles marcos normativos cuyo propósito fue siempre dotar de estabilidad y solvencia al Fondo de Pensiones de Poder Judicial. En esos escenarios se incluyó la posibilidad de regular justamente la “contribución solidaria adicional” ?según la terminología de dicho estudio? en un 50% sobre el tope máximo de la jubilación o pensión. Dicho informe, evaluando expresamente un posible problema de confiscatoriedad, afirmó que sus cálculos estaban basados en un escenario en que el total de las deducciones no debe superar el 50% del beneficio bruto del jubilado o pensionado. Textualmente, dicho informe afirma lo siguiente:

“en todo caso para evitar que el tema de la confiscatoriedad se convierta en un escollo para la necesaria reforma a este régimen, se puede establecer que la contribución especial solidaria se aplicará, junto con las demás deducciones normativas (aporte regular sobre beneficios, impuesto de renta y cuota de salud de la CCSS) sin que el total de deducciones supere el equivalente a 50% del beneficio bruto del jubilado o pensionado” (Lo destacado no corresponde al original. Ver folio 72 del informe).

Del anterior extracto es posible concluir que el propio informe dudaba de la proporcionalidad de la medida, pero optó por establecer el cálculo en un máximo de un 50%, monto que sirvió para ilustrar los escenarios en cuestión y construir la propuesta normativa que finalmente se aprobó.

En consecuencia, si ese fue el valor sugerido en el estudio técnico y no hay elementos que ilustren la razonabilidad por la cual se subió dicho porcentaje hasta un 5% más, considero que dicho porcentaje en demasía debe declararse inconstitucional por irrazonable (carente de sustento que lo legitime).

Asimismo es necesario destacar que los recursos que se obtienen con la contribución especial, solidaria y redistributiva tienen como propósito su reingreso al propio Fondo de Jubilaciones, por lo que luce irrazonable establecer un tope de hasta de un 55% en la sumatoria de rebajas a aplicar sin sustento técnico. Debe tomarse en consideración que las personas adscritas a este Fondo de Pensiones y Jubilaciones ya de por sí tienen previsto un aporte fijo de un 13% de su pensión o jubilación al propio fondo, lo que no ocurre, como se examinó, con otros regímenes de pensiones. Según mi criterio, no se puede equiparar la situación de este régimen de pensiones, en el que históricamente cada persona jubilada o pensionada contribuye al sostenimiento del fondo, con uno que mayoritariamente se financia con los fondos del presupuesto nacional y respecto del cual concluí que no es inconstitucional el tope del 55%.

Finalmente considero que al declarar la inconstitucionalidad de ese 5% en demasía, que se aparta al estudio técnico, no se debe afectar los otros rubros acá examinados, a saber, aporte del 13% al fondo, los montos de financiamiento y de gastos administrativos de la Junta Administrativa del Fondo, el seguro de salud o el impuesto de la renta, pero sí cabe reducir el porcentaje atinente a la contribución especial, solidaria y redistributiva de los pensionados y jubilados regulada en el art. 236 bis de la LOPJ.

En consecuencia, desde mi perspectiva y en eso sí coincido con la mayoría de este Tribunal, la sumaria de las deducciones a aplicar a todos los pensionados y jubilados del Fondo de Jubilaciones y Pensiones del Poder Judicial no podrá ser superior a un 50% respecto de la totalidad del monto bruto de la pensión que por derecho le corresponda al beneficiario (arts. 236 y 236 bis de la LOPJ).

IV.- RAZONES DIFERENTES SOBRE LOS ALEGATOS RELATIVOS A LA OMISIÓN DE TOMAR EN CUENTA LA DIFERENCIACIÓN EN LA EDAD DE JUBILACIÓN ENTRE MUJERES Y HOMBRES Para examinar este agravio de los accionantes, en el sentido de que resulta discriminatorio que no se haya contemplado un criterio de género para el reconocimiento de las jubilaciones ordinarias en el Régimen de Jubilaciones y Pensiones del Poder Judicial, corresponde primero examinar el contexto y la motivación que impulsó a los legisladores a adoptar este marco regulatorio.

Tal y como lo evidencia el voto de la mayoría de esta Sala, desde los años 2012 y 2013 se dieron a conocer los resultados de los estudios actuariales que pusieron en evidencia el grave déficit del Fondo de Pensiones del Poder Judicial. Lo anterior motivó una movilización interna con propuestas para revertir dicha problemática. Igualmente, el proyecto de ley, desde sus orígenes, demostró el interés de realizar una reforma integral a este concreto régimen con el propósito de eliminar disposiciones abusivas, racionalizar el gasto y dar estabilidad o equilibrio. Todo esto con fundamento en los principios de solidaridad, igualdad, justicia redistributiva y eficiencia, que son pilares dentro del Estado Social de Derecho. Justamente el objetivo del proyecto de ley era corregir situaciones que iban en detrimento de la sostenibilidad de los regímenes de pensiones, considerándose que había un deber ineludible de atacar todas aquellas inconsistencias que estaban ocasionando un daño a la estabilidad financiera del régimen. La meta era presentar una propuesta sólida y responsable ante la situación tan dramática que se estaba presentando, haciéndose necesarias las medidas para garantizar la expectativa de pensión de las personas que estaban y están cotizando para dicho régimen. Nótese que en el trámite del proyecto de ley se observa la explícita intención de superar un severo déficit actuarial que, ante la ausencia de medidas concretas, agravó la situación y tornó urgente la intervención del Poder Legislativo (ver las declaraciones de la Directora Ejecutiva del Poder Judicial en el expediente legislativo; considerando VII de la sentencia de mayoría). Al respecto, se constató la necesidad apremiante de hacer ajustes estructurales al Fondo de Pensiones del Poder Judicial por su inviabilidad actuarial y la insolvencia a la que se dirigía. En la exposición de motivos del proyecto de ley tramitado en el expediente legislativo n.°19.922 se anunciaba lo siguiente:

“Los proponentes consideramos de suma importancia, incluir dentro de esta propuesta al de Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial y presentar una propuesta sólida y responsable ante la situación que atraviesa.

Como legisladores nuestra preocupación radica fundamentalmente, en la necesidad de revisar y, si es del caso, limitar los beneficios que reciben los afiliados a dicho régimen, el cual se caracteriza, por no tener un tope para las pensiones que se otorgan, por permitir que los servidores judiciales puedan acogerse a su pensión a los sesenta años de edad, disfrutando de una jubilación igual al salario promedio de los últimos veinticuatro mejores salarios mensuales ordinarios, entre otros aspectos que ponen en riesgo el equilibrio del régimen.

Muchos de los servidores judiciales, se pensionan a edades tempranas, y en algunos casos disfrutan de “pensiones de lujo”, que producen un peligro latente y un riesgo a la sostenibilidad del Fondo en mención, haciendo patente las grandes diferencias que existen entre los regímenes de pensiones que existen en nuestro país, además, se ha puesto en evidencia la desproporción de diferentes pensiones de servidores judiciales, lo cual nos obliga a analizar con detenimiento esta situación y buscar una solución seria y responsable .

Durante el año 2012 se presentaron resultados de estudios actuariales que han generado una alerta real sobre la necesidad de aplicar ajustes a esta legislación, con el propósito de revertir desequilibrios actuariales que han quedado en evidencia y que han creado la inquietud de revisar este régimen y realizarle las reformas necesarias para que pueda adaptarse a la realidad social y económica de nuestro país, y revestirlo de la sostenibilidad que necesita para salir avante y nutrirlo de fondos para sus funcionamiento adecuado”. (Lo destacado no corresponde al original).

En consecuencia, se verifica que era urgente adoptar decisiones para garantizar la sostenibilidad del régimen. Entonces, en el marco de dicho contexto, y por tratarse de un régimen de pensiones propio, todos los beneficiarios, tanto hombres como mujeres, debían soportar y asumir una carga adicional en beneficio del propio Fondo y de la colectividad que depende del mismo. Por lo tanto, se acordó la necesidad de postergar la edad de jubilación. En general, todas las personas cotizantes, tanto hombres como mujeres, vieron un sacrificio personal en las medidas acordadas en aras de lograr la pensión o la jubilación propia (años de servicio, edad, montos de la jubilación, contribuciones especiales, etc.), pero ese sacrificio personal se ideó con miras a garantizar la sostenibilidad del fondo en beneficio ya no solo de su derecho subjetivo (seguir gozando la pensión o la jubilación), sino en resguardo de los derechos fundamentales de toda la colectividad adscrita a este concreto régimen, en aras de que el mismo fuera robusto y solvente.

Ahora bien, la interrogante es si resulta constitucionalmente exigido que el legislador prevea una diferenciación específica en esta materia. Mi respuesta es que no. Ni la Constitución Política ni los instrumentos internacionales suscritos por nuestro país e invocados por los accionantes exigen esta específica solución para garantizar el derecho fundamental a la jubilación o a la seguridad social a favor de las mujeres.

Incluso, de una comparación entre la normativa vigente y la anterior es posible colegir que tampoco se preveía una edad diferenciada entre hombres y mujeres para la obtención de la pensión ordinaria. La actual norma ordena lo siguiente:

“Artículo 224- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años”. (Así reformado por el artículo 1° de la ley n.°9544 del 24 de abril de 2018. Lo destacado no corresponde al original.)

Mientras que el correspondiente artículo antecesor lo regulaba en el siguiente sentido:

“Artículo 224.- Los servidores judiciales podrán acogerse a una jubilación igual al salario promedio de los últimos veinticuatro mejores salarios mensuales ordinarios, devengados al servicio del Poder Judicial, siempre que hayan cumplido sesenta y dos años de edad y el número de años trabajados para la Administración Pública sea al menos de treinta. En ningún caso, el monto de la jubilación podrá exceder del equivalente al ingreso de un diputado, entendiéndose por ingreso las dietas y los gastos de representación”. (Lo destacado no corresponde al original).

De la atenta revisión de esa disposición se desprende que no contemplaba la distinción que ahora los accionantes echan de menos. Incluso, la eventual declaratoria de inconstitucionalidad en nada subsanaría la situación que demandan y no beneficiaría la condición de las mujeres, pues la norma anteriormente vigente, como se aprecia, tampoco contemplaba diferencias de género respecto de la edad de jubilación, sino que exigía por igual la edad de 62 años.

Ahora bien, eso no quiere decir que el legislador estuviera en la posibilidad de realizar un análisis concreto de la situación de sexo. Es más, sí consta que dicha variable fue evaluada en los correspondientes estudios técnicos requeridos; sin embargo, al introducir las distinciones que demandan los accionantes, el resultado era la insolvencia del fondo. En el supra mencionado estudio “Producto número 6, Informe Final: Recopilación e informe final: conclusiones y recomendaciones. Versión final” relativo al proyecto “Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial” del mes de julio del año 2017, hubo varios escenarios de análisis (Marco normativo vigente, Texto Sustitutivo, Propuesta de Corte Plena y Marco IICE­_1) en el que se contemplaba la diferencia etaria entre hombres y mujeres para obtener la jubilación ordinaria, fijándose la de los varones en 65 años y la de las mujeres en 62 años. Sin embargo, ninguna de dichas propuestas garantizaba la solvencia actuarial del fondo y, más bien, en los escenarios Marco IICE_3 y Marco IICE_4 (en los que no se distinguió entre hombres y mujeres por edad o años cotizados) se concluyó que el Fondo tendría solvencia actuarial y sí podría garantizar sus promesas en el largo plazo utilizando sólo los propios recursos asignados por el marco en cuestión (o sea sería autosuficiente) y únicamente resultarían insolventes en un escenario económico financiero “pesimista”. Dichos insumos fueron los que sirvieron finalmente para la propuesta que se aprobó en la Comisión Especial encargada de conocer y dictaminar el proyecto de ley. Incluso, en el trámite parlamentario se explicó que el texto dictaminado se basaba en el estudio actuarial solicitado por la Corte Suprema de Justicia al IICE y, está apegado a las recomendaciones plasmadas en el informe final rendido por dicha instancia. En la justificación del dictamen se incorporó parte la exposición de los representantes del Instituto durante la audiencia programada en la sesión número 20 del 19 de julio de 2017 que, en lo conducente, apuntaba lo siguiente:

“Si observamos aquí, podemos ver que en el marco vigente, se presentaba, según se había hablado inicialmente con ustedes en otra ocasión, un déficit de cinco punto treinta y seis millones de millones de colones, y un indicador de insolvencia que básicamente superaba con creces el cinco por ciento que se establece como a nivel general, por parte de los actuarios, como el nivel mínimo requerido para indicar que existe solvencia. Un fondo, en este caso, se considera que es solvente si tiene un déficit inferior al cinco por ciento, en términos de la relación déficit y pasivo actuarial. Cuando ese déficit excede ese nivel, se considera que el fondo es insolvente. Obviamente cuando no hay déficit definitivamente es solvente, pero en estos casos particulares, tanto el marco vigente como el texto sustitutivo, como el de la Corte Plena, los dos resultados indican que hay un déficit y ninguno de esos tres esquemas, sobrepasa o aprueba las pruebas de solvencia, según podemos observar. Los esquemas de texto sustitutivo y de Corte Plena, generan algunas enmiendas que definitivamente son insuficientes para resolver los problemas que genera el régimen vigente en este momento. (…)

Aquí tenemos un resumen de las diferencias entre los diferentes marcos que desarrolló el instituto. Básicamente ahí se presentan cuatro marcos. De esos cuatro marcos, solamente los últimos dos que aparecen en las últimas dos columnas de la derecha, los marcos, IICE 3 e IICE 4 son solventes, según vamos a ver más adelante. (…)

Obviamente con el fin de lograr la solvencia, es necesario reducir las promesas, básicamente reducir el porcentaje con el que cada persona se pensiona, y aumentar las cuotas, porque si no es imposible lograr un proceso que genere solvencia. (…)

Vamos a presentar los resultados de los marcos del Instituto. Vemos que los marcos IICE 3 e IICE 4 aprueban los estándares de solvencia, generando una relación déficit a pasivo actuarial del tres punto noventa y ocho por ciento, en el caso del marco IICE 3 y del uno punto cincuenta y cinco por ciento en el marco IICE 4. Esto es tal vez como lo más importante. Son entonces, alternativas que son relativamente auto suficiente y que generan escenarios de solvencia. Obviamente requieren un sacrificio por parte de los afiliados, pero sin ese sacrificio sería imposible conseguir resultados de solvencia. Tenemos algunos resultados un poco más específicos para los marcos IICE 3 e IICE 4 y aquí presentamos el resultado de solvencias excluyendo los ingresos de los depósitos judiciales o los procesos abandonados. Vemos que aún y en ese caso, este marco mantiene su estándar de solvencia, y el marco IICE 4 también. En ese caso, aprueba las condiciones de solvencia para el escenario económico básico. Para el escenario económico optimista también mantiene las condiciones de solvencia tanto incluyendo como excluyendo esos ingresos adicionales que en algún momento se habían comentado. Algunas consideraciones finales. Los marcos en discusión, que se evaluaron tanto el marco vigente como el texto sustitutivo, como el marco de la Corte Plena, son insolventes. Los ajustes de los marcos, el texto sustitutivo y el texto de la Corte Plena no resuelven la insolvencia del marco vigente. Los marcos IICE 3 e IICE 4 resultan solventes con o sin los ingresos adicionales, resultantes de procesos en abandono. Los marcos IICE 3 e IICE 4 plantean ajustes en edad y años de servicios requeridos, cálculos del salario de referencia. Se establece un tope para la jubilación en la pensión. Hay ajustes en el porcentaje de aporte de los participantes y además, se establece un aporte solidario sobre el exceso sobre el tope por parte de los jubilados y pensionados. Los marcos IICE 3 e IICE 4 no generan cargas adicionales al gobierno.

El marco vigente es insolvente en este momento. Es necesario realizar ajustes pronto con el fin de evitar un deterioro de la situación actuarial que está vigente ya. O sea, es más, desde antes porque estos son datos al 31 de diciembre del 2015”. (Lo destacado no corresponde al original).

Luego, los legisladores justificaron el motivo por el cual optaron mayoritariamente por la propuesta realizada por el IICE explicando, a tales efectos, lo siguiente:

“El texto aprobado, se respalda técnicamente en el Marco Normativo IICE_4, que es uno de los modelos recomendados por el Instituto de Investigaciones en Ciencias Económicas (IICE) en su estudio actuarial, y fue escogido por la Comisión Dictaminadora por las siguientes razones:

• a)Da garantía de que el Fondo sí puede garantizar sus promesas en el largo plazo con los recursos asignados por el Marco en cuestión, además, el déficit actuarial se estima en 0.15 (Millón de millones) de colones, cifra que representa aproximadamente el 1.69% del total del pasivo actuarial por los futuros beneficios a los participantes actuales y futuros (activos y jubilados/pensionados), b) Garantiza que el Fondo sí pasaría satisfactoriamente una prueba rigurosa de solvencia actuarial y consecuentemente, se puede afirmar que el Fondo estaría en un estado de “aproximado balance actuarial”, c) Sí garantiza el pago de los beneficios de pensión y jubilación, en el largo plazo utilizando sólo los propios recursos asignados por el Marco en cuestión, es decir, el Fondo de pensiones y jubilaciones del Poder Judicial sería autosuficiente.
• d)El Marco Normativo IICE_4 sí garantiza el déficit actuarial más bajo de todos los modelos propuestos, en virtud, de que en comparación con el resto de los modelos propuestos por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, bajo el análisis de los escenarios base/ intermedio y optimista muestra las cifras de déficit actuarial más baja (-0.14 Millones de millones) e incluso, en el escenario optimista, en lugar de déficit muestra un superávit de (0.66 Millones de millones), sin que haya insolvencia.
• e)El Marco Normativo IICE_4, sí establece el porcentaje de monto de jubilación más favorable de todos los modelos estudiados, y lo fija en un 85% del promedio de 240 salarios mensuales ordinarios, lo que evidentemente, es más favorable para las y los servidores del Poder Judicial, en contraposición al 72,5% de porcentaje de monto de jubilación que recomienda el Marco Normativo IICE_3. Lo anterior es concordante, con lo indicado por el Instituto de Investigaciones en Ciencias Económicas en el Producto 6: “Informe Final, conclusiones y recomendaciones” del estudio actuarial, textualmente se señala en el apartado 6.4 Valoración y Planteamiento final sobre la solvencia actuarial de los Marcos normativos presentados, lo siguiente: “Bajo la premisa de que el Fondo debe garantizar por sí mismo los beneficios que promete (sin crear cargas adicionales al Gobierno de Costa Rica o al resto de los trabajadores costarricenses), la recomendación del presente informe del IICE al Poder Judicial consiste en escoger entre una de estos dos marcos normativos (Marco IICE_3 o Marco IICE_4). Estos marcos normativos solamente resultan insolventes en un escenario económico financiero “Pesimista”. Ahora bien, es muy importante también tener presente que el Instituto de Investigaciones en Ciencias Económicas de la UCR, señala expresamente en el Producto No.5 del estudio actuarial, en relación al Marco Normativo IICE_4, lo que implican los ajustes que se recomiendan aplicar al perfil de beneficios del Régimen de Pensión y Jubilación del Poder Judicial, y que bajo este modelo: “se está aumentando aún más los requisitos mínimos para optar a la jubilación por vejez; y reduciendo los montos prometidos de beneficios”2 El Marco Normativo IICE_4, establece una serie de variables que deben ser acatadas en estricto apego a la propuesta diseñada, a fin de garantizar la solvencia necesaria al Fondo de Pensiones y Jubilaciones del Poder Judicial en el largo plazo. La Comisión Dictaminadora consciente y responsablemente incorporó en el texto aprobado, las variables que establece el Marco Normativo IICE_4, con la finalidad de no poner en riesgo la sostenibilidad presente, ni futura, del Régimen de pensiones y jubilaciones del Poder Judicial y basarse estrictamente en la recomendación técnica emitida por el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica”. (Lo destacado no corresponde al original).

En consecuencia, partiendo de los insumos técnicos que dotan de razonabilidad la normativa que se analiza, no se le podría haber exigido al legislador que viniera a aprobar un beneficio adicional a favor de las mujeres, pero en perjuicio del propósito originario del proyecto de ley, a saber, dotar de solidez al Fondo de Pensiones y Jubilaciones del Poder Judicial. Incluso, luce un tanto contradictorio solicitarle al legislador que realice una valoración técnica que incluya la diferencia por sexo, cuando el que ya se realizó sí contempló dicha variable y apuntaba a que esa diferencia provocaba la insolvencia del Fondo.

Al respecto, la Procuraduría General de la República (PGR), al contestar la audiencia otorgada en esta acción de inconstitucionalidad, afirmó que este tipo de diferenciaciones solo se justifican cuando los estudios técnicos sugieran la necesidad de un tratamiento diferenciado, lo que fue expuesto por la Sala en la opinión consultiva n.°2018-5758. En correspondencia con lo dicho, y al haberse constatado que el estudio técnico descartó esa posibilidad, me adhiero a la tesis de que la situación analizada no resulta discriminatoria o lesiva de los derechos fundamentales de las mujeres.

Por lo demás, no se aportaron ni se acreditaron elementos técnicos que desvirtúen los insumos que sirvieron de apoyo para la aprobación de esta concreta normativa y, como ya se dijo supra, en virtud del anterior escenario normativo, lo que se intentaría con esta acción de inconstitucionalidad es legislar en una forma específica que, además de no tener apoyo técnico, iría en contra del propósito originario del proyecto de ley, como lo es dar sostenibilidad al Régimen de Pensiones y Jubilaciones del Poder Judicial.

Todo lo examinado hasta ahora no quiere decir que la decisión adoptada pueda ser posteriormente cambiada por el propio legislador en virtud de un nuevo escenario ?mejores condiciones actuariales y de solvencia que apunten hacia una situación de fortaleza financiera del Fondo de Pensiones?. Lo anterior, con el propósito de otorgar un trato diferenciado en razón del sexo y como una medida de discriminación positiva a favor de las mujeres, lo cual, de darse el caso, podría también ser compatible con el Derecho de la Constitución, siempre y cuando el trato desigual no sea en detrimento de las condiciones sociales y económicas de las propias mujeres.

Sin embargo, en el escenario de aprobación de la normativa bajo análisis, no se vislumbró otra combinación de variables que facultara al legislador a inferir una propuesta diversa. Recuérdese, como se señaló supra, que en un contexto de precariedad del fondo, se trató de la adopción de una combinación de medidas que implicaron un sacrificio para las personas adscritas a este régimen, de manera que modificar alguno de estos componentes podría trastocar la armonía del modelo adoptado, en perjuicio ya no solo de las mujeres, sino de todos los beneficiarios del sistema, presentes y futuros.

V. NOTA SEPARADA A.- Sobre la integración de la Sala

Respecto de la integración del Tribunal para resolver estas acciones de inconstitucionalidad, debo advertir que de forma oportuna presenté mis gestiones de inhibitoria primero como magistrada suplente y luego como magistrada titular.

Las primeras pretensiones fueron aceptadas, pero posteriormente fueron dejadas sin efecto por parte de la Presidencia de la Sala, con el propósito de integrarme al Tribunal y para que yo conociera por el fondo los expedientes acumulados a la acción de inconstitucionalidad n.°18-7819-007-CO. Justamente por eso presenté las segundas, pero fueron rechazadas.

En virtud de tal situación elevé mis impugnaciones ante la Presidencia y el Pleno de la Sala Constitucional, no obstante fueron desestimadas y, por lo tanto, he debido concurrir en la resolución de este asunto. Sin embargo, estimo que corresponde dejar constancia de las consideraciones realizadas por mi persona en la sentencia n.°2020-015544 en la que justamente el Pleno rechazó conocer por el fondo mis impugnaciones respecto de la forma en que se integró la Sala para la resolución de estas acciones de inconstitucionalidad. En el referido voto consigné las siguientes conclusiones:

“La recta interpretación del art. 29 LJC debe ser que, cuando una misma causal cubra a los Magistrados titulares y suplentes, se autoriza que el caso sea conocido por los propietarios. Pero, de existir causales adicionales o diversas, se debe realizar un análisis específico y concreto de la causal planteada, so pena de tergiversar el claro enunciado del artículo mencionado.

La literalidad de la norma es un límite para la capacidad interpretativa del juez (ver resoluciones redactadas por el Magistrado Rueda Leal, 2016-16967, 2018-7208 y 2018-14090). Por eso el juez constitucional, al realizar interpretaciones, también cuando se trata de realizar la debida conformación del órgano, está limitado por el plexo normativo que regula esta jurisdicción, so pena de contrariar el sistema democrático.

Estimo que la literalidad del art. 29 LOPJ está siendo trastocada por una práctica e interpretación de la Presidencia de la Sala, pues, ante cualesquiera gestiones de inhibitoria –sin un análisis particular– aplica dicho numeral indistintamente, obviando la necesidad de realizar un examen concreto de cada situación, que asegure una integración apropiada del propio Tribunal.

En estricta aplicación del principio de la perpetuidad de la competencia, la Presidencia de la Sala Constitucional no podía unilateralmente desconocer lo dispuesto en el art. 16 CPC que ordena, también para la jurisdicción constitucional, la invariabilidad de la conformación del Tribunal para conocer un caso concreto.

Al estar ya conformado el Tribunal para conocer de la acción de inconstitucionalidad, no se podía retroceder, ni mucho menos desintegrar el órgano con el fin de habilitarme, puesto que, con mucha anterioridad, me encontraba separada e inhabilitada para el conocimiento de este proceso; y, además, subsistían las razones por las que se me había separado.

Es necesario hacer dos aclaraciones. En primer lugar, lo planteado se diferencia sustancialmente de una gestión por recusación, en virtud de eventuales denuncias penales o disciplinarias. No cabe asimilar los supuestos de interés directo (causales previamente expuestas por un Magistrado en un proceso, que comprometen su imparcialidad para la resolución de un asunto) con las recusaciones planteadas en contra de un determinado Magistrado con el evidente propósito de separarlo del conocimiento de un proceso en particular.

En segundo lugar, las sustituciones no se pueden asimilar a una desintegración del órgano: el principio de la perpetuidad de la competencia no se rompe cuando algún Magistrado suplente conoce fortuitamente de un caso concreto por ser designado para integrar durante un periodo concreto el tribunal y la causa de la sustitución es la licencia, la incapacidad o las vacaciones de un Magistrado propietario. En tales supuestos, evidentemente, no se trata de la desintegración del órgano o del irrespeto al principio de la perpetuidad de la competencia, sino que hay una mera sustitución temporal por las razones mencionadas.

En definitiva, a partir de lo expuesto, considero que esta gestión debió ser admitida y ameritaba ser resuelta como una nulidad de pleno derecho, dado que en las resoluciones impugnadas existen nulidades en la apreciación del plexo normativo que rige a la Jurisdicción Constitucional.

Luego de la deliberación en la que participé, sigo estimando que es nula la resolución de la Presidencia de la Sala Constitucional dictada en este expediente, al ser las 09:00 hrs. de 15 de abril de 2020, mediante la cual desintegró el órgano y me declaró habilitada para conocer del proceso. En efecto, el respeto a los cánones hermenéuticos y el rigor normativo apuntan a que esa resolución es nula de pleno derecho por violentar los arts. 25, 29.2, 31 de la LOPJ; 4 y 14 de la LJC; y el principio de la perpetuidad de la competencia, expresamente regulado en el art. 16 CPC.

Debo por último afirmar que es patente que todo mi actuar ha sido guiado por el principio de buena fe”.

Consideraciones que debo repetir en esta resolución de fondo, para dejar en evidencia mi disconformidad respecto de la forma en que fue integrado este Tribunal para resolver las acciones de inconstitucionalidad bajo examen.

B.-Sobre la alegada conexidad Los accionantes cuestionaron un presunto vicio al principio de conexidad en el trámite del proyecto de ley. Impugnan que originalmente se trataba de un proyecto general que procuraba reformar varios regímenes de pensiones, pero, con posterioridad, el trámite parlamentario se concentró exclusivamente en la reforma al Régimen de Pensiones y Jubilaciones del Poder Judicial.

Sobre el particular, se aprecia que en la sentencia de la mayoría y en mi voto salvado se hace una extensa referencia a la exposición de motivos del proyecto de ley. Del espíritu de la iniciativa parlamentaria es palpable la motivación del legislador de aplicar ajustes al específico Régimen de Pensiones y Jubilaciones del Poder Judicial, con el propósito de presentar una propuesta “sólida y responsable ante la situación que atraviesa”. Incluso al respecto hubo mucha transparencia en el sentido de que era preciso revisar y, si fuera del caso, limitar los beneficios que estaban recibiendo los afiliados, enumerando situaciones que, desde la perspectiva de los promotores del proyecto, resultaban problemáticas, tales como: la ausencia de tope a las pensiones, la posibilidad de acogerse a la pensión a los sesenta años y los montos de jubilación. Estas condiciones, a juicio de los proponentes, implicaba “un peligro latente y un riesgo a la sostenibilidad de fondo en mención”. Incluso, también se puede observar que se realizaron afirmaciones tan contundentes como las siguientes:

“se ha puesto en evidencia la desproporción de diferentes pensiones de servidores judiciales, lo cual nos obliga a analizar con detenimiento esta situación y buscar una solución seria y responsable” así como “realizarle las reformas necesarias para que pueda adaptarse a la realidad social y económica de nuestro país y revestirlo de la sostenibilidad que necesita para salir avante y nutrirlo de fondos para su funcionamiento adecuado”.

Ahora bien, tal y como se evidencia en la sentencia de mayoría, el proyecto inicial estaba dirigido a reformar todos los regímenes de pensiones; sin embargo, después, el Poder Legislativo se enfocó en tramitar por separado y de forma específica la reforma al Régimen de Pensiones y Jubilaciones del Poder Judicial (ver Considerando VII). Si bien estimo que la técnica jurídica empleada no es la más idónea, entiendo que no se ha visto lesionado el principio de conexidad en el trámite del proyecto de ley bajo análisis, pues, como se evidenció, el propósito originario sí incluía la reforma al específico régimen del Poder Judicial. Es verdad que se cercenó parte del proyecto de ley al excluir otros regímenes y se podría considerar que eventualmente existió alguna lesión al principio de conexidad, pero no fue sustancial. En efecto, lo cierto es que, tal y como se constató, el propósito del proyecto de ley sí incluía claramente la intención del proyecto de ley de regular el Régimen de Pensiones y Jubilaciones del Poder Judicial de manera que si durante el trámite parlamentario se optó por enfocarse de manera especializada y específica en este concreto régimen, lo acontecido no lesiona este concreto proyecto de ley.

C.- Sobre el plazo de 18 meses previsto en el transitorio VI Coincido con las consideraciones realizadas por la mayoría de esta Sala respecto a la constitucionalidad del plazo de dieciocho meses previsto en el transitorio VI de la ley n.°9544 como término para cumplir requisitos y jubilarse o pensionarse bajo el anterior marco regulatorio (ver considerando LXIX). Dicho plazo fue fijado atendiendo a la propia jurisprudencia de la Sala Constitucional, que lo ha estimado razonable para definir los derechos adquiridos en materia pensiones (ver por ejemplo los votos números 846-1992, 06491-1998, 3551-2014, 12606-2014, 1214-2015 y 2655-2015, entre otras).

No obstante, lo anterior no significa que eventualmente un plazo mayor también pueda ser compatible con la Constitución Política. En ese sentido, desde mi perspectiva, no debe entenderse que necesariamente ese plazo de dieciocho meses es el constitucionalmente obligado para estos supuestos regulatorios, pues eventualmente podría ser mayor. Recuérdese que la Sala ha señalado que no existe un derecho estricto a la constitucionalización de los plazos, que es justamente lo que afirmo en el sub lite.

Ahora bien, lo que sucede es que en el caso concreto ese plazo sí se estima razonable, ya no solo por ampararse en la propia jurisprudencia de esta Sala, sino también en los estudios técnicos que sirvieron de insumo para la construcción de la decisión legislativa final. Obsérvese que este plazo sí fue uno de los requerimientos técnicos para diseñar e implementar las modificaciones correspondientes en aras de procurar dar sustento financiero al Régimen de Jubilaciones y Pensiones del Poder Judicial y agilizar la implementación de las medidas. En consecuencia, en esta específica propuesta normativa se conjugaron dos criterios: por un lado, la jurisprudencia de esta Sala en la materia y, por otra, el fundamento técnico y la motivación respecto de la cual giró la aprobación de esta normativa, a saber, la solvencia actuarial del fondo. Al respecto, en el estudio técnico del IICE se realizaron las siguientes valoraciones sobre un eventual aumento del transitorio a dos años:

“Un aumento en el ‘transitorio’ pospone los ajustes y por lo tanto afecta negativamente los ingresos del Fondo. Para valorar adecuadamente el efecto de un aumento de este transitorio sería necesaria realizar un análisis actuarial completo.

Por otra parte, una decisión en esta dirección puede inducir a los administradores y agentes políticos a realizar gestiones para incluir a grupos sucesivamente más numerosos, de forma que al final un ‘transitorio’ de dos años terminaría transformándose en un transitorio de cinco, seis o incluso más años.

Finalmente, la ampliación del transitorio pospone parte de los ajustes, por lo que el análisis de rentabilidad y solvencia del Fondo pueden genera la impresión de que los ajustes que sí se realizaron no surtieron efecto”. (Lo destacado no corresponde al original).

Como se concluye con facilidad, el estudio técnico desaconsejó ampliar el plazo del transitorio a dos años. De conformidad con lo anterior se hace necesario reiterar que el diseño normativo está anclado en una serie de variables que procuraron dar solidez al Fondo de Pensiones y Jubilaciones del Poder Judicial. De manera que modificar alguno de estos elementos sin el correspondiente sustento técnico podría provocar que todos los demás elementos se desajusten en perjuicio del propio Fondo y de todos los beneficiarios.

D.- Sobre el plexo normativo 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, en la sentencia de mayoría se realizan referencias a los criterios del Comité de Derechos Sociales del Consejo de Europa, a la jurisprudencia de otros Tribunales Constitucionales como el de Colombia y de la propia Corte Interamericana de Derechos Humanos. Incluso, al examinar la temática de la independencia judicial, se hace alusión a los “Principios Básicos relativos a la independencia de la judicatura” adoptados durante el Sétimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente. Asimismo, se realiza la invocación del Convenio n.°128 y la Recomendación n.°131 sobre las prestaciones de invalidez, vejez y sobrevivientes de 1967. Estimo que la mención de tales instrumentos es del todo pertinente si se entiende que es para efectos hermenéuticos y no como elementos que integran el parámetro de control de constitucionalidad.

Anamari Garro Vargas 1 [1] Al respecto los folios 87 y 88 del expediente legislativo refieren lo siguiente:

f. 87 “Les informo a las señoras y señores diputados que hay una moción que ha sido presentada para agregar al expediente que se establece como texto sustitutivo para la discusión de esta propuesta el expediente….

Disculpen, aclaro que el texto base será el del expediente 19.651, que se incorpora con una moción de texto sustitutivo, firmada por todas las fracciones, con lo cual en el momento en que inicie el trámite del artículo 208 bis del expediente 19.922, se conocerá la moción de texto sustitutivo que utiliza como base el proyecto de ley que había sido presentado por diversas organizaciones del Poder Judicial.

Ese es el texto base que ocuparía la discusión del proyecto de ley 19.922, que además estaría estableciéndose su permanencia por cuatro meses en la comisión respectiva, en la comisión especial que se integra, lo cual dará tiempo para que regrese…, para que se tenga el informe y el estudio actuarial que está realizando la Universidad de Costa Rica para el fondo de pensiones del Poder Judicial.

En discusión la moción.

Tiene la palabra el señor Diputado Edgardo Araya Sibaja.

Diputado Edgardo Vinicio Araya Sibaja:

Muchas Gracias, compañero presidente, compañeros y compañeras diputados y diputadas.

Quiero nada más dejar constando nuestra posición contraria, nuestra posición negativa a esta moción de vía rápida, vía 208 bis, que se pretende aprobar al proyecto 19.922, que al día de hoy sigue siendo un proyecto que regula todos los sistemas de pensiones, los que son con cargo al presupuesto en el caso de los de Hacienda y otros y también incluye los del Poder Judicial.

Lo votamos en contra, porque lo que el Frente Amplio ha dicho es que cuando hay una vía rápida la mayoría calificada se requiere para que entre el texto en ese trámite en ese camino de vía rápida. pero lo que se vaya a resolver por el fondo de ese texto no se puede controlar.

Y una simple mayoría podría cambiar el texto que, digamos, se había consensuado cuando entró a la vía rápida.

Se lo planteamos así hace unas cuantas horas a los gremios del Poder Judicial que estaban ahí, que se reunieron en la Presidencia de la Asamblea donde estábamos varios diputados y diputadas.

Y los gremios del Poder Judicial dijeron: Bueno, si el expediente 19.922 lo único que se va a quedar es el número y que si del 19.922 se le va a incorporar como nuevo texto, exactamente el que hoy está en el expediente 19.651 que fue el que fue presentado por los gremios, los gremios dijeron que no tenían mayor problemas.

Per al día de hoy….

Presidente Antonio Álvarez Desanti:

Les ruego por favor hacer silencio para poder escuchar la exposición de don Edgardo que además, es importante para que conste en actas lo que está manifestando y lo que fue manifestado por los gremios del Poder Judicial.

Diputado Edgardo Araya Sibaja:

De esa manera los representantes de todos los gremios del Poder Judicial fueron clarificados por este diputado de los riesgos que implicaba la vía rápida, de los riesgos que implicaba que una cosa es el texto que va a entrar, pero que no hay garantía de que ese texto sea el que vaya a salir.

Y en ese sentido lo dijimos, porque así nos lo pidieron que firmara este diputado el texto sustitutivo de ese 19.922 para hacer constar que era el íntegro 19.651 para los que están en las barras estamos hablando de pensiones del Poder Judicial, pensiones del Poder Judicial.

Bueno, en este momento la moción de texto sustitutivo está en revisión, así que nosotros no hemos firmado nada pero les dijimos claramente que esta moción de vía rápida no nos comprometíamos a votarla porque no la conocíamos hasta hace pocas horas conocíamos esta moción de vía rápida.

Y el problema de esa moción de vía rápida, esto no es poca cosa, porque son mociones complejas que regulan una serie de pasos, una serie de procedimientos.

Y si no se logra pensar bien si es una moción hecha al calor, a la carrera, el riesgo que tenemos es que después puedan haber violaciones importantes de procedimiento que incluso puedan incidir en la validez de ese procedimiento.

Por eso es, y quiero dejar absolutamente sentada la posición de la bancada en este momento por esas razones, porque no tenemos un texto claro, cuál es el texto que realmente vamos a discutir ahora en el 19,922 y porque no tenemos claridad sobre esa moción que apensa conocimios hace unas cuatro noras y que requiere un estudio más adecuado de esta fracción legislativa va a votar en contra ese texto de vía rápida que …, esa moción de vía rápida que reitero el riesgo que tenemos es que no hay garantía política en ese momento que el texto que están pensando los gremios que está entrando es el mismo que va a salir.

Gracias compañero presidente.

Presidente Antonio Alvarez Desanti:

Suficientemente discutida la moción.

Ruego a las señoras y señores diputados ocupar sus curules para proceder a votarla.

Ruego abrir las puertas para que regresen los diputados que se encuentran en el Salón de Expresidentes y cerca del corredor.

….

Hay cuarenta y nueve señoras y señores diputados presentes.

Voy a repetir para que estemos claros, hoy esta moción que estamos votando la conversamos con los gremios del Poder Judicial, con representantes de la administración del Poder Judicial, quienes estuvieron de acuerdo y que queda en los términos que les indiqué.

Hay una moción de texto sustitutivo que se está agregando al expediente para que la base de discusión sea el texto original del expediente 19,651 que fue la propuesta de modificación a las pensiones del Poder Judicial, presentada por un número importante de diputados de esta Asamblea Legislativa, elaborado en el Poder Judicial.

Ese sería el texto base con el que trabajaría esa comisión en un plazo de cuatro meses para esperar la llegada del dictamen del estudio actuarial que está preparando la universidad de Costa Rica, plazo en el cual habrá tiempo suficiente para recibir en audiencia a las diferentes organizaciones y a las autoridades del Poder Judicial en aras de que pueda salir la reforma al régimen de pensiones del Poder Judicial.

Eso es lo que pretende esta moción.

Consecuentemente, hay cuarenta y nueve señoras y señores diputados en el salón de sesiones.

Ruego cerrar las puestas.

Quienes estén de acuerdo con que se le dé trámite de artículo 208 bis según la moción presentada al expediente 19,9222 para las pensiones del Poder Judicial en los términos explicados y que constan en la moción lo manifestarán poniéndose de pie. Cuarenta y nueve señoras y señores diputados presentes, para su aprobación se requieren treinta y ocho votos.

Treinta y nueve diputados a favor, diez en contra, aprobada”.

(Luego se presentó moción de revisión y fue rechazada por 40 diputados Observaciones de SALA CONSTITUCIONAL votado con boleta Clasificación elaborada por SALA CONSTITUCIONALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.