← Environmental Law Center← Centro de Derecho Ambiental
Res. 11957-2021 Sala Constitucional · Sala Constitucional · 25/05/2021
OutcomeResultado
The Constitutional Chamber granted the consolidated challenges and annulled Law No. 9544 reforming the Judicial Branch pension and retirement regime, finding both procedural defects in the legislative process and substantive constitutional violations.La Sala Constitucional declaró con lugar las acciones acumuladas y anuló la Ley No. 9544 que reformaba el régimen de jubilaciones y pensiones del Poder Judicial, por presentar vicios de procedimiento legislativo y vicios de fondo contrarios a la Constitución Política.
SummaryResumen
The Constitutional Chamber consolidated multiple unconstitutionality challenges filed by judicial unions, professional associations, a cooperative, and individual employees against Law No. 9544, which amended the judicial branch pension and retirement system. Petitioners alleged procedural defects—failure to consult the Supreme Court under Article 167 of the Constitution and improper use of Article 208 Bis of the Legislative Assembly Regulations—and substantive defects: violation of acquired pension rights, undermining of organic and functional judicial independence, infringement of social security rights, and discrimination relative to other public pension regimes. The majority granted the challenges and annulled the law. Justice Garro Vargas dissented on methodology, arguing that the international instruments cited by the majority serve only as interpretive aids, not as direct benchmarks for constitutional review.La Sala Constitucional acumuló múltiples acciones de inconstitucionalidad promovidas por asociaciones gremiales, sindicatos, cooperativas y empleados del Poder Judicial contra la Ley No. 9544, que reformó el régimen de jubilaciones y pensiones de los servidores judiciales modificando los artículos 224, 224 Bis, 226, 227, 236, 236 Bis y 239 de la Ley Orgánica del Poder Judicial. Los accionantes alegaron vicios de procedimiento —principalmente la omisión de consultar la reforma a la Corte Suprema conforme al artículo 167 constitucional y el uso irregular del artículo 208 Bis del Reglamento Legislativo— y vicios de fondo: violación de derechos adquiridos en pensiones, quebranto de la independencia judicial orgánica y funcional, afectación del derecho a la seguridad social y discriminación. La mayoría declaró con lugar las acciones y anuló la ley. La magistrada Garro Vargas salvó el voto en cuanto al método de control, advirtiendo que los tratados internacionales invocados por la mayoría operan solo como parámetro hermenéutico, no como parámetro directo de constitucionalidad.
Key excerptExtracto clave
"Modifying any of these elements without the corresponding technical support could cause all other elements to become misaligned, to the detriment of the Fund itself and all its beneficiaries." "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) of the Constitutional Jurisdiction Law, yet it is not contrary to it, since it allows guaranteeing the effectiveness of Art. 7 of the Constitution. That function of controlling such conformity is distinct from the function the Chamber exercises under Art. 10 of the Constitution—constitutional review—and from that established in Art. 48 of the Constitution—jurisdictionally guaranteeing constitutional rights and fundamental rights established in international human rights instruments." "When this Chamber exercises its function of constitutional review, it is not appropriate for it to resort to treaties and use them as if they actually formed part of the constitutional benchmark. Such instruments, and only if duly ratified, may be erected as a conformity parameter for legal and infra-legal norms, pursuant to Art. 7 of the Constitution and Art. 73(d) of the Constitutional Jurisdiction Law.""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." "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."
Pull quotesCitas destacadas
"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."
"There can be no genuine judicial independence if the salaries and pensions of judges and court officers are not commensurate with their responsibilities, which are more demanding than those of any other official performing a purely administrative public function."
Resultando — argumentos de los accionantes
"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."
Resultando — argumentos de los accionantes
"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."
"The independence of the Judicial Branch, both organic and functional, is a sine qua non condition for the exercise of the jurisdictional function, which is extremely delicate since it falls to the judge to decide on the only possible interpretation of the law, the Constitution, and the conventionality benchmark."
Resultando — argumentos de los accionantes
"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."
Resultando — argumentos de los accionantes
"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."
"When this Chamber exercises its function of constitutional review, it is not appropriate for it to resort to treaties and use them as if they actually formed part of the constitutional benchmark."
Voto salvado, Magistrada Anamari Garro Vargas — Sobre el plexo normativo
"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."
Voto salvado, Magistrada Anamari Garro Vargas — Sobre el plexo normativo
"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."
"Modifying any of these elements without the corresponding technical support could cause all other elements to become misaligned, to the detriment of the Fund itself and all its beneficiaries."
Voto salvado, Magistrada Anamari Garro Vargas
"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."
Voto salvado, Magistrada Anamari Garro Vargas
Full documentDocumento completo
File No.: 18-007819-0007-CO Resolution: 2021011957 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at seventeen hours zero minutes on the twenty-fifth of May, two thousand twenty-one.
Consolidated actions for unconstitutionality (acciones de inconstitucionalidad acumuladas), brought by Mario Alberto Mena Ayales, of legal age, married twice, retired judicial employee, holder of national identity card (cédula) 1-0525-0562, resident of San José, in his capacity as President of the Asociación Nacional de Empleados Judiciales; Juan Carlos Sebiani Serrano, holder of national identity card 1-0782-0001, in his capacity as President of the Asociación Nacional de Profesionales del Poder Judicial; Hernán Campos Vargas, holder of national identity card number 1-0519-0160, as Secretary General of the Sindicato de Trabajadores y Trabajadoras del Poder Judicial (SITRAJUD); Yesenia Paniagua Gómez, holder of national identity card number 1-0845-0494, in her capacity as President of the Asociación de Profesionales en Psicología del Poder Judicial; Álvaro Rodríguez Zamora, holder of national identity card number 1-0477-0319, in his capacity as President of the Sindicato Asociación de Investigadores en Criminalística y Afines; Johnny Mejías Ávila, holder of national identity card 9-0044-0592, in his capacity as President of the Board of Directors, and Óscar Enrique Umaña Chacón, holder of national identity card number 3-0272-0995, as General Manager, both of the Cooperativa de Ahorro y Crédito de Servidores Judiciales, Responsabilidad Limitada (Coopejudicial, R. L.); Damaris Molina González, holder of national identity card 2-0269-0487, in her capacity as President of the Asociación Nacional de Jubilados y Pensionados del Poder Judicial; Jorge Luis Morales García, holder of national identity card number 2-0399-0222, in his capacity as Secretary General of the Sindicato de la Judicatura (SINDIJUD); Ana Luisa Meseguer Monge, holder of national identity card 9-0030-0193, as President of the Asociación Costarricense de Juezas; Carlos Álvarez Casasola, holder of national identity card number 1-396-124, in his capacity as President of the Caja de Préstamos y Descuentos de los Empleados del Poder Judicial (CAPREDE); Adriana Orocú Chavarría, holder of national identity card No. 3-0317-0898, in a personal capacity and in her capacity as President of the Asociación Costarricense de la Judicatura; Ingrid Fonseca Esquivel, holder of national identity card 1-0698-0988; Freddy Arias Robles, holder of national identity card 1-0727-0493; German Esquivel Campos, holder of national identity card number 1-0965-0647; Yerma Campos Calvo, holder of national identity card number 1-0607-0534; Maribel Bustillo Piedra, holder of national identity card number 1-0683-0430; Pedro Valverde Díaz, holder of national identity card 1-0634-0537; Juan Carlos Cubillo Miranda, holder of national identity card number 5-0219-0266; Maykel Coles Ramos, holder of national identity card 2-0452-0646; Alonso Hernández Méndez, holder of national identity card number 1-1145-0746; Ana Lucía Vásquez Rivera, holder of national identity card 1-0690-0133; Estrella Soto Quesada, holder of national identity card 2-0345-0973; Mario Alberto Sáenz Rojas, holder of national identity card number 1-0644-0873; Paula Esmeralda Guido Howell, holder of national identity card 1-0675-0975; Danilo Eduardo Ugalde Vargas, holder of national identity card 4-0143-0612, in his capacity as special judicial representative (apoderado especial judicial) of Eduardo Sancho González, holder of national identity card No. 1-0380-0073; Rosa Iris Gamboa Monge, holder of national identity card number 3-0120-0928; Magda Lorena Pereira Villalobos, holder of national identity card 4-0105-0076; Alejandro López Mc Adam, holder of national identity card number 6-0106-0565; Lupita Chaves Cervantes, holder of national identity card 1-0596-0893; Milena Conejo Aguilar, holder of national identity card 1-0624-0446; Francisco Segura Montero, holder of national identity card number 1-0546-0928; Jorge Rojas Vargas, holder of national identity card number 2-0310-0070; Álvaro Fernández Silva, holder of national identity card number 1-0288-0592; Luis Fernando Solano Carrera, holder of national identity card 1-0455-0325; Alfredo Jones León, holder of national identity card number 1-0467-0555; Rodrigo Montenegro Trejos, holder of national identity card number 4-0075-0723; Alfonso Chaves Ramírez, holder of national identity card 1-0357-0392; Anabelle León Feoli, holder of national identity card 1-0466-0883; Ana Virginia Calzada Miranda, holder of national identity card number 1-0434-0791; Eva María Camacho Vargas, holder of national identity card 4-0113-0745; Rafael Ángel Sanabria Rojas, holder of national identity card number 3-0249-0099; Mario Alberto Houed Vega, holder of national identity card 1-0376-0780; Rolando Vega Robert, holder of national identity card number 1-0503-0990; Adrián Vargas Benavides, holder of national identity card 4-0105-0889; and Óscar Luis Fonseca Montoya, holder of national identity card 4-0080-0442; seeking a declaration of unconstitutionality of Law No. 9544, entitled "Reform of the Régimen de Jubilaciones y Pensiones of the Judicial Branch, as set forth in Law No. 7333, Ley Orgánica del Poder Judicial (Organic Law of the Judicial Branch) of May 5, 1993, and its Amendments," in toto and, specifically, against Articles 224, 224 Bis, 226, 227, 236, 236 Bis, and 239 and Transitorio VI of the Ley Orgánica del Poder Judicial, as amended by Law No. 9544 of April 24, 2018, as well as Art. 208 Bis of the Reglamento Interno de la Asamblea Legislativa. The Attorney General of the Republic (Procurador General de la República), the President of the Legislative Assembly, and the President of the Supreme Court of Justice appear as intervening parties.
Background:
It considers it important to take into account the negative opinion (dictamen negativo) issued by the Corte Plena in response to the hearing concerning the text approved in committee, indicating that a negative opinion was being issued because the bill affects the structure, organization, and functioning of the Judicial Branch (Poder Judicial), with respect to the following aspects: a) the renewal of Judicial Branch personnel is affected because the institution would retain aging employees who continue working solely because of the reduction their income would suffer if they retired; b) judicial employees are compelled to choose between retiring to rest or assessing their financial situation, forcing them to seek new sources of income to maintain ordinary expenses and those particular to old age; c) there are legal restrictions on retired persons seeking other employment, and it is a reality that after the age of 40 there are limitations on re-entering the workforce; d) the Judicial Branch loses competitiveness in the labor market, to the detriment of the quality of the administration of justice; e) the salaries for these positions are lower because of the contribution to the pension and retirement fund (régimen de pensiones y jubilaciones), which is four times greater than the contribution required by other pension schemes, a fact that further hinders the recruitment of human resources and affects the public service; f) employees contributed at a rate higher than that of other schemes with the expectation of receiving a pension that would allow them to meet 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 the elderly, who constitute the weaker party and require greater protection from the State; h) a tax is imposed at a stage of life when a person is most vulnerable, when they require greater medical attention and special care, even though during their working life they contributed to the scheme with the expectation of having the resources earmarked for facing this stage, and if this bill were enacted, that life plan would be thwarted; i) an important social impact would result because upon retirement people lose a significant portion of their income yet retain a pre-established level of expenses, and this undermines the objective of a pension system, which is to ensure that a person has sufficient income throughout post-working life, especially when they continue to have other elderly persons or minors in their care and under their financial support—an impact that affects not only the economic sphere but also health.
It states that judicial employees cannot be compared, much less equated, with other State employees, either in terms of responsibilities, functions, salaries, or retirement rights, given that the two groups find themselves in factually different circumstances. It considers that the institutional and functional independence of the Judicial Branch presents itself as a condition sine qua non for the exercise of the jurisdictional function, which is an exceedingly delicate function since it falls to the Judge to decide on the sole and possible interpretation of the law, the Constitution, and the standard of conventionality (parámetro de convencionalidad), which would be impossible without the requisite independence. It adds that such independence would be illusory if it did not necessarily entail adequate remuneration and retirement rights commensurate with the functions and responsibilities involved, both for the judge properly speaking and for the personnel who assist and support the judge in that function; consequently, in matters of remuneration and retirement, Judicial Branch employees cannot be equated with those of the public sector.
It further adds that the need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies the fact that the pension of judicial employees is not identical to that of the rest of the public administrative sector; what is decided with the force of res judicata (cosa juzgada) in judicial proceedings has transcendental effects on legal certainty and on the law in force in a society and, therefore, on social peace.
It states that judicial independence in a Constitutional State under the Rule of Law (Estado Constitucional de Derecho) has an institutional dimension vis-à-vis the other branches of government, 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 with respect to the hierarchical superiors within the Judicial Branch itself; therefore, no Rule of Law exists if the Judicial Branch—including all of its employees—does not possess genuine and effective independence. It 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).
It argues that the requirement for courts to be independent and impartial confers upon the Judicial Branch a particular and specific nature, distinct from that of other State institutions, because it grants the Judicial Branch a shield of protection against political interference, protection from which those other institutions do not benefit. Since it is the Judicial Branch that administers justice and since justice must be impartial and free from any external pressure, economic pressure—whether through salary or through the amount and conditions of the retirement benefits of judges and other judicial auxiliaries—plays a transcendental role in achieving genuine and effective independence of the Judicial Branch.
The challenged Law violates Article 167 of the Constitution: it considers this to be so because the law contains a series of provisions affecting the organization and functioning of the Judicial Branch and, therefore, there was an obligation to refer the respective bill to the Supreme Court of Justice as required by Article 167 of the Constitution. It notes that Article 239 of the law creates a Board of Directors of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which the law defines as a Judicial Branch body with functional, technical, and administrative independence, empowered to exercise the faculties and attributions granted to it by law, and which is assigned a series of competences such as increasing employee contributions to the Pension Fund and considering retirement applications, thereby producing a modification in the structure of the Judicial Branch.
It notes that Article 239 creates, ex novo, an administrative body and situates it within the structure of the Judicial Branch, with specific competences and attributions, while simultaneously withdrawing and eliminating competences and attributions previously granted—by formal law—to the Superior Council of the Judicial Branch (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva, and Departamento Financiero Contable).
It considers that Article 240 is in the same situation as Article 239, because it regulates matters relating to the administrative organization of the Judicial Branch regarding the composition and appointment of the members of the Board of Directors of the Judicial Branch Pension and Retirement Fund, their terms of office, the designation of the person to preside over it, and the requirements for membership in that Board, among other matters. It argues that the Corte Plena is required to issue regulations governing the election of the members of that Administrative Board, thereby imposing upon it a competence it does not currently hold. It notes that the Legislative Assembly was obligated to consult the bill with the Judicial Branch, in accordance with the provisions of Article 167 of the Constitution, given that the legislation modifies the administrative organization of the Judicial Branch through the creation of a new administrative body and the elimination of competences of the Superior Council (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 branch of government.
It notes that it must be recalled that what was approved on first reading by the Legislative Plenary on 30 October 2017, published in Supplement No. 268 to the Digital Gazette No. 212 of 9 November 2017, was a substitute text introduced by motion under Article 137 of the Rules of the Legislative Assembly; this substitute text was never referred to the Supreme Court of Justice as required. It reiterates that the procedural defect identified in the legislative procedure for approving the challenged law—resulting from the failure to consult the Supreme Court of Justice regarding the substitute text approved on first reading—must be declared unconstitutional, given that this procedural omission violated the provisions of Article 167 of the Constitution, since that law affects the administrative organization of the Judicial Branch through the creation of a new administrative body within its structure, granting it substantial competences in matters of pensions and retirement, in addition to suppressing competences previously granted by law to the Superior Council of the Judicial Branch (Corte Suprema de Justicia, Dirección de Gestión Humana, Dirección Ejecutiva, and Departamento Financiero Contable).
It adds that the procedural defect of failure to consult the Corte Plena regarding the text introduced on first reading could not have been cured during second reading even if the bill had been approved by a qualified majority, since such ratification would only have applied had it involved the approval of a text that was required to be consulted with the Judicial Branch—by reason of its effect on the organization, structure, and functioning of the Judicial Branch, as in this case—and had the Judicial Branch been consulted and the Legislative Assembly then persisted in approving the bill in departure from the technical opinion rendered by the judicial body. It indicates that in this case the situation is different, since it involved the approval on first reading of an unconsulted text, in contravention of the provisions of Article 167 of the Constitution; consequently, that procedural defect is irremediable and incurable.
It argues that while the prior text approved by the Special Committee at the session of 27 July 2017 was indeed referred to the Court for consultation, the fact that the Corte Plena expressed disagreement with that text by resolution adopted at session No. 27 of 7 August 2017, Article XXX, made a qualified vote by the Plenary mandatory, pursuant to the provisions of Article 167 of the Constitution—which was likewise not obtained. It notes that this defect also invalidates the challenged law on procedural grounds, since the challenged law was approved by 31 votes when it required at least 38.
The unconstitutionality of the challenged law by reason of the late publication of the substitute text approved on first reading: it notes that subparagraph h of point 2, "Motions on the Merits," of the procedure followed in the approval of the challenged law, established that the publication of substitute texts was mandatory, as may be inferred from the following verbatim text: "h.- If during consideration of the bill in committee a motion for a substitute text is approved, or when the committee agrees to changes that substantially modify the bill, the Chair of the Committee shall request that the Legislative Directorate agree to its publication in the Official Gazette La Gaceta for the purpose of safeguarding the Constitutional Principle of Publicity, and consideration of the bill shall be suspended…".
It argues that the rules established by the Legislative Plenary for processing the challenged bill under a special procedure (procedimiento especial) via Article 208 bis of the Reglamento Legislativo are of mandatory and strict compliance, given that this involves a procedure far more restrictive than the ordinary one, in which, in particular, the democratic principle (principio democrático) and the principle of public notice (principio de publicidad) must be observed. It further argues that the absence of publication constitutes an essential procedural defect (vicio esencial) in and of itself, and therefore the fact that a substitute text (texto sustitutivo) is published after its approval on first reading (primer debate) does not have the legal force to cure the identified defect. It states that this position has been upheld by the jurisprudence of the Constitutional Chamber (Sala) when examining the bill known as "Ley de Solidaridad Tributaria," which was processed under legislative file (expediente legislativo) No. 18261, and that in judgment number 2012-004621 of 16:00 hours on April 10, 2012, the relevant portion stated that "…from a reading of the substantive motions (mociones de fondo) approved by the special committee (comisión especial), this Constitutional Tribunal finds, unanimously, that there was an essential defect in the legislative procedure of an evident and manifest nature that violated the principles of public notice and equality by omitting their publication, given that, taken together, they produced a substantial modification of the original text." It adds that the substitute text approved on first reading by the Legislative Plenary on October 30, 2017 was published in Alcance 268 to Gaceta Digital No. 212 of November 9, 2017, while the legislative referral (consulta legislativa) was filed on November 1, 2017.
It further adds that, in other words, not only was that text published belatedly—after being approved on first reading—but at the time the legislative referral was submitted to the Sala it had not yet been published, thereby also producing an additional violation of the principle of public notice and, consequently, of an essential step in the legislative procedure. It further states that the publication of the substitute text of the bill should have taken place before its approval on first reading, since by having done so afterwards, the democratic principle was violated by preventing citizens from learning of the substitute text of the bill prior to its approval. It indicates that, as a result, the belated publication produces the same effects as the absence of publication on the legislative procedure, given that the purpose of publication is for the population to know, prior to its approval, the final text of the bill, so that it may properly scrutinize parliamentary work—a right of the citizenry that was rendered nugatory in the processing of the challenged provision, implying that it was approved with an essential defect in the legislative procedure, which cannot be validated by the subsequent publication of the text approved on first reading.
It adds that, consequently, by failing to observe, in strict compliance, the special procedure established via Article 208 bis of the Reglamento de la Asamblea Legislativa in the processing of the challenged law—given that the substitute text was published after its approval on first reading and after several legislators (diputados) had filed the corresponding legislative referral—the democratic principle and the principle of public notice were grossly violated, and the belated publication of the final approved text did not have the legal force to validate the spurious procedure through which the challenged law was approved. It concludes by requesting that ley número 9544 be declared unconstitutional for violation of Article 167 of the Constitución Política, the democratic principle, and the principle of public notice.
"When, by reason of grounds for disqualification, challenge (recusación), self-recusal (excusa), or any other ground, a court officer must withdraw from hearing a specific matter, the vacancy shall be filled as follows:
(…)
The President of the Sala Constitucional states that, consequently and in accordance with the transcribed provision, by operation of law, it falls to him to exercise the Presidency of the Sala Constitucional in order to resolve the recusal motions (inhibitorias) on record in the case file (expediente). He recalls that this Court has a dual role as supervisor of the constitutionality of norms of any nature and of acts subject to Public Law (Article 10 of the Constitución Política)—that is, as guarantor of the principle of constitutional supremacy and as adjudicator of violations of the Fundamental Rights established in the Constitution and in international instruments (Article 48 ibid.)—so as to ensure their direct and immediate enforceability; and that, to achieve those ends, the Sala resolves and hears matters brought before it in a single instance, with jurisdiction over the entire national territory, since it is the only specialized tribunal in this field (Article 11, paragraph 2 of the Ley de la Jurisdicción Constitucional).
He adds that constitutional jurisdiction, unlike ordinary or common jurisdiction, must be governed by its own particular rules so as to prevent any petitioner or respondent authority from removing justices from hearing a specific and particular matter, in contravention of the general principles of law of non-waivability of jurisdiction (irrenunciabilidad de las competencias), the hermetic completeness of the legal order (plenitud hermética del ordenamiento jurídico), and the natural judge (juez natural). 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; that normative text, in its Article 31, recognizes the distinctive character of Constitutional Jurisdiction by stipulating that, in matters of grounds for disqualification (impedimentos), self-recusals (excusas), and challenges (recusaciones), "[…] it shall be governed by its own rules 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 Constitución Política), pursuant to which no one may be tried by an ad hoc tribunal or one specially appointed for the case "[…] but exclusively by the tribunals established in accordance with this Constitution." He notes that the constitutional judge cannot be regarded as a mere public official or as a judge of ordinary legality, and that in his primary role as supervisor of the constitutionality of the norms of the legal order, the constitutional judge is daily confronted with situations where an inconveniently broad interpretation of the notion of direct interest—such as, for example, tax matters, social security matters, or electoral matters, to name only a few—would compel him to step aside from hearing matters that are inherent to his function, yet he should not for that reason be required to recuse himself or be challenged in each of those subject areas, since doing so would undermine his role as supreme judge of the Constitución Política.
He argues that the regime of self-recusals, recusal motions, and challenges applicable to the Justices of the Sala Constitucional is an extraordinarily exceptional regime and, consequently, the simple self-recusals, recusal motions, and challenges regulated in ordinary procedural legislation are not applicable to it. He states that the declarations made by alternate Justices (Magistradas suplentes) Sánchez Navarro and Monge Pizarro as active contributors (cotizantes activos) to said Fund reveal the direct interest they hold in the resolution of these proceedings; for her part, Justice Garro Vargas maintained that her brother is a contributor to the Poder Judicial pension scheme and that, consequently, whatever is decided will personally affect her direct relative. He maintains that precisely this direct interest in the matter submitted for their consideration obliges the Presidency of the Sala Constitucional, in the terms set forth and as a highly restrictive ground, to deem alternate Justices Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas disqualified from hearing these proceedings.
He adds that, in this case, all of the full justices (Magistrados propietarios) and alternate justices appointed to exercise the powers of this Sala have grounds for a recusal motion, which would result in the impossibility of constituting a Sala with 7 justices to resolve the matter; nonetheless, the Sala is constitutionally obligated to decide the matters submitted to it, and circumstances such as those now arising—the absence of the full and alternate justices necessary to constitute the Sala—cannot nullify that obligation or relieve this Court from fulfilling it. He notes that the Sala, on previous occasions, has been confronted with similar situations in which it has ruled, insofar as relevant, as follows:
"Therefore, the legal order must be integrated in order to extract the rule that will allow this Sala to be constituted with the members necessary to resolve the matters under its charge. The key is found in Article 14 of the Ley de la Jurisdicción Constitucional (…). This provision allows the Sala to integrate the legal order with the principles of Constitutional Law, Public Law, Procedural Law, and even International or Community Law, in order to resolve legal gaps (lagunas legales) such as the one now arising. For that integration, account must also be taken of the special and particular nature of constitutional jurisdiction, to which only those principles and rules of ordinary law that are not incompatible with that nature may be applied. Moreover, on other occasions this Sala has already applied the aforementioned article in order to integrate the rules that govern it, in particular with regard to the acceptance of recusal motions by full justices (Magistrados propietarios) and their authorization to hear a specific matter.
Thus, in the ruling issued at fifteen hours thirty minutes on the seventeenth of May of nineteen ninety-one, handed down in case file number 91-000778-0007-CO, it applied the aforementioned Article 14 of the Ley de la Jurisdicción Constitucional and held that: '…we find ourselves confronted with a rule formulated by a text of constitutional rank, but one that lacks the implementing rules that make its practical application possible; in such a case, so that the rule does not remain a dead letter, the Judge must elaborate the necessary rules therefor, which in this instance are more constructive rules than objective norms. The Judge must eliminate the "blind spots of jurisdictional review and ensure full application of the legal norm." This is a clear reference to the unavoidable duty of this Sala to hear the matters placed under its control. Likewise, Article 29, subparagraph 2) of the Ley Orgánica del Poder Judicial provides a solution when a ground for disqualification covers both full and alternate justices, a situation that would make resolving the case impossible.
Under the rule established therein, full justices are required by operation of law to hear those matters, without incurring any disciplinary liability therefor. This constitutes, then, a normative justification (causa de justificación normativa) that relieves of all liability—including criminal liability—those full justices who hear a matter in which all of the alternate justices, or at least those necessary to constitute the Sala, have some ground for disqualification or impediment precluding them from hearing that same matter, which is both logical and necessary, since otherwise there would be a material impossibility for the Sala to resolve the case in question. A state of necessity thus arises that makes it impossible to apply the provision of Article 6 of the Ley de la Jurisdicción Constitucional regarding the substitution of full justices who have a ground for disqualification, challenge, or impediment, with the result that the particular interest must yield to the public interest in the name of the existence of constitutional jurisdiction.
Consequently, in this case it is not possible to accept the recusal motion filed by the full justices of this Sala, since doing so would place this Court in a material impossibility of resolving the matter and, therefore, the appropriate course of action is to deny the recusal motion filed by the full justices named herein and to authorize those necessary to constitute the Sala in order to be able to hear this matter" (see ruling of 13 hours 58 minutes of January 9, 2013, handed down in case file No. 12-006848-0007-CO; in the same vein, among others, ruling of 9 hours 04 minutes of August 16, 2013, handed down in case file No. 12-011335-0007-CO; ruling of 15 hours 57 minutes of January 29, 2016, issued in case file No. 16-000620-0007-CO; ruling of 8 hours 42 minutes of September 7, 2017, handed down in case file No. 17-006076-0007-CO; and ruling of 10 hours 40 minutes of February 27, 2018, issued in case file No. 17-017148-0007-CO).
He argues that, pursuant to the provisions of the transcribed ruling, Article 14 of the Ley de la Jurisdicción Constitucional, and Article 29, subparagraph 2) of the Ley Orgánica del Poder Judicial, full justices are required by operation of law to hear those matters without incurring any disciplinary liability therefor. He states that the foregoing constitutes, then, a normative justification that relieves of all liability—including criminal liability—the justices who hear a matter in which the alternate justices necessary to constitute the Court have some ground for disqualification or impediment precluding them from hearing that same matter. He concludes by noting that, by virtue of the foregoing considerations and in application of the general principles of law of non-waivability of jurisdiction, the hermetic completeness of the legal order, and the natural judge, the appropriate course of action is to authorize, by operation of law, Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Justice Nancy Hernández López, and alternate Justices José Paulino Hernández Gutiérrez and Marta Eugenia Esquivel Rodríguez to hear these proceedings.
He concludes by deeming alternate Justices Ileana Sánchez Navarro, Lucila Monge Pizarro, and Anamari Garro Vargas disqualified from hearing these proceedings, and ordering that the processing of the case file continue.
"Under the provisions of the transcribed ruling, as well as those set forth in Article 14 of the Ley de la Jurisdicción Constitucional and numeral 29, paragraph 2), of the Ley Orgánica del Poder Judicial—supra Considerandos I and III—it falls to the full justices, by operation of law, to hear those matters, and they bear no disciplinary liability for doing so. This constitutes, therefore, a normative justification that relieves of all liability, including criminal liability, the justices who hear a matter in which the alternate justices, who are needed to constitute the Tribunal, have some ground for recusal or impediment to hearing the same matter." It was ordered that, in light of the foregoing and in application of the general principles of law of the non-waivability of jurisdictional competences (Irrenunciabilidad de las competencias), the hermetic completeness (plenitud hermética) of the legal order, and the natural judge (juez natural), the appropriate course of action is to deny Justice Araya García's recusal request at this time.
It was stated that the manifest interest in this matter—whether arising from his first recusal request or any other ground—is irrelevant from the moment that, by operation of law—numeral 29, paragraph 2), of the Ley Orgánica del Poder Judicial—he is obligated to hear this action. It was further noted that it is not possible to allow "supervening" (sobrevinientes) grounds to override that integration, since accepting them in this particular case would lead to the extreme situation of being unable to constitute a Tribunal and the Chamber being unable to fulfill the competences constitutionally assigned to it; consequently, the appropriate course of action is to declare him enabled to hear this matter, and accordingly his recusal request is denied and the case file is ordered to continue its processing.
"Given the statements made by Justice Cruz Castro and noting that, in his capacity as President of the Consejo Superior del Poder Judicial—a respondent authority in this proceeding—he submitted the report requested in the ruling issued in connection with this amparo action (amparo), the appropriate course of action is to consider him withdrawn from hearing this matter" (ruling issued at 8:14 a.m. on October 18, 2018—expediente No. 18-010635-0007-CO—; ruling issued at 2:39 p.m. on November 13, 2018—expediente No. 18-013211-0007-CO—; ruling issued at 2:51 p.m. on November 13, 2018—expediente No. 18-013203-0007-CO—; ruling issued at 2:59 p.m. on November 13, 2018—expediente No. 18-013194-0007-CO—; and ruling issued at 10:21 a.m. on November 15, 2018—expediente No. 18-008535-0007-CO—).
It is resolved that, in light of the provisions of the resolution quoted above, and given the statements of Justice Cruz Castro in his capacity as President of the Supreme Court of Justice—concerning the same ratio decidendi, namely the Retirement and Pension System (Régimen de Jubilaciones y Pensiones) of the Judiciary—the appropriate course is to recuse him from hearing this matter. In turn, with regard to the recusal request (inhibitoria) filed by substitute Justice (magistrado suplente) José Paulino Hernández Gutiérrez, it is noted that he is correct in that the situation described would result in his being recused from this matter; however, Justice Araya García is already sitting on the Court for this case, which results in the absence of one Justice needed to constitute the Court given the recusal of permanent Justice (magistrado titular) Cruz Castro, one substitute Justice already appointed to the case file—Marta Esquivel Rodríguez—and the remaining 9 substitute Justices having recused themselves.
It is noted that the Court is constitutionally required to resolve the matters submitted to it, and that circumstances such as those now arising—the absence of one Justice needed to constitute the Court given the recusal of a permanent Justice, two substitute Justices already appointed to the case file, and the remaining ten substitute Justices having recused themselves—do not nullify that obligation or relieve this Court of fulfilling it. It further notes that the Court, on previous occasions, has confronted similar situations in which, pursuant to Art. 14 of the Ley de la Jurisdicción Constitucional and section 29, subsection 2) of the Ley Orgánica del Poder Judicial, it determined that Permanent Justices (Magistrados Propietarios) are required by operation of law to hear those matters, without incurring disciplinary liability for doing so, which thereby constitutes a legal justification that releases from all liability—including criminal liability—those Justices who hear a matter in which the substitute Justices necessary to constitute the Court have grounds for recusal or disqualification from that same matter.
Consequently, it is resolved that, in light of the foregoing considerations and in application of the general principles of law of non-waivability of jurisdiction (irrenunciabilidad de las competencias), the completeness of the legal order (plenitud hermética del ordenamiento jurídico), and the natural judge (juez natural), the appropriate course is to deny the motion filed by substitute Justice José Paulino Hernández Gutiérrez due to the absence of one Justice needed to constitute the Court, and, by operation of law, he is deemed authorized to hear this case. It is concluded that the Court, for the hearing of this constitutional challenge (acción de inconstitucionalidad), is constituted by Justices Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo. Salazar Alvarado, Jorge Araya García, and substitute Justices José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez, who on that date was sitting on the Constitutional Court by virtue of having been designated, by lottery draw, to temporarily fill the vacant seat on the Court at that time.
"Article 224.- Judicial employees with twenty or more years of service in the Judiciary may retire under an ordinary retirement benefit 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 (IPC) as 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." The petitioner (accionante) maintains that this article violates the principles of proportionality and reasonableness (principios de proporcionalidad y razonabilidad), inasmuch as the retirement age and the number of years the employee must work are increased while the percentage of pension (pensión) income the employee will receive relative to his or her working salary is reduced. The petitioner adds that the right to retirement (derecho de jubilación) constitutes the economic benefit obtained after working and contributing to a given scheme for a specified period, whose purpose is to guarantee a dignified life for the person after he or she withdraws from the labor market due to age or disability; a right that derives from Article 73 of the Constitución Política and is acquired from the moment the person fulfills all the requirements established by applicable legislation.
The petitioner emphasizes that the right to retirement is not unrestricted, as it may be subject to certain limitations, provided those limitations are established by formal law, are reasonable, and do not affect its essential content. The petitioner notes that the Court has held that the legislature has the authority to impose restrictions on the right to retirement when it can be demonstrated that certain situations endanger the sustainability of a scheme and thereby undermine the very nature of the system (see ruling No. 2379-96). The petitioner considers that Articles 224, 224 bis, and 227 of the challenged law (ley impugnada) are unconstitutional because, after applying the legally established deductions (rebajos), the pension amount will fall below 55% of the last salary drawn, which constitutes a ruinous figure that also violates the principles of proportionality and reasonableness, since the retirement age and the number of years the employee must work are increased while the percentage of pension income relative to the working salary is reduced.
The petitioner argues that the method for calculating the pension and all the applied deductions leave the pension at an amount that constitutes "a ruinous, impoverishing, and undignified reduction not only for persons serving as judges of the Republic but for all persons working in the Poder Judicial" (see the dissenting opinion (voto salvado) of Justice Cruz Castro in ruling 5758-2018). The petitioner states that the right of judges (judicial employees (servidores judiciales)) to a fair retirement pension forms part of the human right to social security and the right to retirement. The petitioner maintains that, in this matter, the challenged provisions violate the right to a fair pension because the deductions are excessive, disproportionate, and unreasonable; not even the percentages applied to income tax reach the levels set by the challenged law. The petitioner argues that, in this regard, the maximum income tax rate for corporations is 30% and 15% for individuals without lucrative activities; with respect to retirees, the State also has limits on its taxing power — a pension is a retiree's income, and for that reason the tax obligations imposed on retirees must be governed by the principles of reasonableness and proportionality that apply to the tax rates set for wages and earnings.
The petitioner warns that the fact that a person retires does not authorize the State to impose a contribution in pension matters that exceeds the tax ceilings applicable to salaried workers and legal entities, and that these percentages — from the challenged law — establish illegitimate inequalities or forms of discrimination, since the percentage of this contribution far exceeds the taxes levied on legal entities and on individuals. The petitioner states that these determinations must take into account the contribution made by the judicial employee throughout his or her entire working life, which averages 11% per month of gross salary. The petitioner argues that this failure to give adequate weight to the contribution percentage paid by judicial workers in order to eventually obtain their right to a pension violates the parameters of reasonableness, generality, and proportionality that govern the imposition of tax burdens within a rule-of-law state (Estado de Derecho).
The petitioner argues the unconstitutionality of Articles 236 and 236 bis in relation to Article 224. On this point, the petitioner notes that the change in the parameters for accessing the right to retirement — contained in Article 224 of the challenged law — together with the subjection to a special contribution and the applicable percentages — contained in Articles 236 and 236 bis of the law — constitute a constitutional defect (vicio de constitucionalidad), by reason of violation of the principles of equality, proportionality, and reasonableness. The petitioner states that the change in the conditions for retirement substantially reduces the percentage of pension a retiree will receive and, in addition, subjects the pension to what is termed a "special, solidarity-based and redistributive contribution (contribución especial, solidaria y redistributiva)." The petitioner notes that the drastic reduction in the pension amount violates the principle of equality because only retirees and pensioners of the Poder Judicial are subjected to that solidarity contribution, and not the beneficiaries of other pension schemes; this is a very particular imposition on a specific sector — a vulnerable group within society — namely, retirees and pensioners.
The petitioner considers this to be discriminatory and a violation of Article 33 of the Constitución Política in the terms defined by the Court in ruling No. 2003-005374, where it held that "a violation of the general principle of equality will exist when, for a legal differentiation, no reasonable justification can be found arising from the nature of things or from other adequate grounds, or when, from the perspective of justice, such regulation must be characterized as arbitrary." The petitioner maintains that it is not justifiable to subject a particularly vulnerable sector of the population — namely, retirees and pensioners — exclusively to that special contribution. The petitioner adds that the challenged provisions also violate the principle of proportionality and the non-confiscation principle (principio de no confiscación), since the percentages applied for that so-called "special contribution" are manifestly disproportionate, ranging from 35% to 55%, which means that the pensioner retains at most a right to 55% of his or her retirement or pension entitlement; not even the maximum percentages applied to income tax reach the levels applied to Poder Judicial pensioners.
The petitioner further adds that the challenged provisions violate the principle of reasonableness because they amount, in substance, to a form of double taxation (doble imposición): on the one hand, retirees and pensioners must pay 13% of their pension (pursuant to Article 236 of the law) and, on the other hand, they are also subject to payment of "that special contribution" (pursuant to Article 236 bis of the same law), which ranges from 35% to 55% of the established ceiling. The petitioner indicates that the labels given to the contribution do not exempt it from the limits to which it must conform, pursuant to the constitutional principle of non-confiscation (no confiscatoriedad). The petitioner further alleges that Articles 224, 224 bis, 227, 236, and 236 bis violate the constitutional principle of unity of the social security system (principio de unidad de la seguridad social). The petitioner recalls that the guiding principles of social security are constructed through the harmonious interpretation of Article 73 of the Constitución Política, Article 25.1 of the Universal Declaration of Rights, Article 16 of the American Declaration of the Rights and Duties of Man, and Article 9(2) of the Protocolo de San Salvador, and they are: universality (universalidad), solidarity (solidaridad), unity (unidad), and equality (igualdad).
The petitioner notes that the principle of unity is the one that regards the social security system as a whole, requiring the system to operate according to consistent and coordinated criteria, to grant similar benefits or entitlements to different categories of persons protected under its scheme, and to establish uniform burdens. The petitioner notes that this principle emphasizes the need for congruence 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 covered by the scheme does not violate the principle of equality. The petitioner indicates that this means that several institutions may participate in the administration of the social security system, provided that the benefits they grant are similar — that is, equal for all beneficiaries of the social security system considered as a whole.
The petitioner adds that, likewise, within a given social security benefit — for example, the retirement and pensions scheme (régimen de jubilaciones y pensiones) — all contributors must be subject to the same burdens and entitled to the same benefits; otherwise, the principle of equality before public burdens (igualdad ante las cargas públicas), which derives from Article 33 of the Constitución Política, would also be violated. The petitioner notes that the challenged provisions discriminate between workers subject to the social security scheme administered by the Caja Costarricense de Seguro Social and the retirement scheme (régimen jubilatorio) for judicial employees, and that, within that framework, the burdens borne by Poder Judicial workers far exceed those borne by workers affiliated with the Caja Costarricense de Seguro Social scheme: for example, in the case of the contribution to the Fondo de Jubilaciones y Pensiones del Poder Judicial, the difference is nearly 9 percentage points to the detriment of Poder Judicial workers, even though both categories are entitled to bear the same burdens.
The petitioner indicates that judicial workers should be subject to the same tax burdens as those borne by persons affiliated with the social security scheme administered by the Caja Costarricense de Seguro Social, so as not to violate the principle of equality that permeates the entire social security system. The petitioner contends that, in this regard, it is therefore not possible for the burdens on judicial workers to be greater than those borne by persons affiliated with the Caja's pension scheme, given that both groups are in the same factual situation: they are workers required to contribute to the social security scheme in order to obtain, at the end of their careers, a dignified pension on equal terms. The petitioner argues that, in the case of pension schemes, all their beneficiaries, without any differentiation whatsoever, must be subject to the same burdens and receive the same benefits, so as not to violate the principle of equality that permeates the entire social security system.
The petitioner notes that, in this matter, the challenged provisions grant those who retire under the scheme administered by the Caja an advantage over judicial employees, since the latter pay 9 additional percentage points per month in contributions, even though the pension percentage, in both cases, is approximately 55% of the last salary drawn. The petitioner summarizes this point by stating that the challenged provisions, insofar as they establish discriminatory contributions for Poder Judicial workers relative to those covered under the Caja's pension scheme, are unconstitutional for violation of the constitutional principle of unity of the social security system. The petitioner alleges the unconstitutionality of Article 239. The petitioner notes that this provision delegates to a subordinate authority the possibility of modifying the initial parameters established in the same law with respect to eligibility requirements, the benefit profile, and the contributions and payments of judicial employees, as well as the retirements and pensions provided for in the law — thereby incurring a clear violation of Articles 9 and 28 of the Constitución Política in relation to Article 30 of the Convención Americana de Derechos Humanos and Article 121, paragraph 13, of the Constitución Política.
It recalls that consistent constitutional jurisprudence has held that the regime of fundamental rights and freedoms is a matter subject to the statutory reservation (reserva de la ley); it argues that, for this reason, a subject such as human experimentation (experimentación con seres humanos) — which implicates rights as important and essential as life, health, dignity, and privacy — requires regulation by statute, not only because it falls within the system of freedoms guaranteed by Article 28 of the Constitución Política, but also because it constitutes a substantive principle forming part of the democratic system, 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 further argues that the principle of statutory reservation not only guarantees freedom vis-à-vis other citizens, but also constitutes a check against public authority (voto 1635-90 of 17 hours of November 14, 1990) which, in the case of clinical human experimentation, for example, requires that its regulation, authorization, limitation, and oversight come from the legislative chamber, which is the body responsible for protecting or restricting the fundamental rights of citizens (voto 1668-10 of 15 hours 12 minutes of January 27, 2010).
It points out that Article 239 of the challenged statute grants a decentralized body (órgano desconcentrado) of the Judicial Branch the power to regulate and potentially restrict the fundamental right to a pension and to social security (seguridad social); therefore, such regulatory changes to the pension rights of judicial employees (servidores judiciales) may only be made by a formal statute approved by the Asamblea Legislativa, and not through administrative acts (actos administrativos) issued by a decentralized body of the Judicial Branch. It holds that the challenged provision violates not only Article 28 but also Article 9 of the Constitución Política, inasmuch as it delegates the exercise of legislative authority (potestad legislativa) to a decentralized body of the Judicial Branch; it delegates to the Junta Administradora del Fondo de Pensiones the power to modify specific aspects of the challenged statute.
It adds that the challenged provision also violates Article 30 of the American Convention on Human Rights (Convención Americana de Derechos Humanos), which requires that restrictions on fundamental rights may only be imposed by a formal statute approved by a parliamentary body: in the present case, the Junta Administradora del Fondo de Pensiones is authorized to modify the initial parameters of the statute, which constitutes a clear restriction on the pension rights of judicial employees. It further argues that Article 121, paragraph 13 of the Constitución Política is also violated, since this provision authorizes an administrative body to modify the rate of a tax (tributo) — which is, as a matter of law, the employees' contribution to a pension scheme (régimen de pensiones) — a matter reserved exclusively to formal legislation under the cited constitutional provision. It argues a violation of Article 167 of the Constitución Política.
In this regard, it notes that the final text approved by the Asamblea received only 31 votes, when 38 votes were required in order to depart from the adverse opinion issued by the Corte Plena through agreement number XXX of session number 27 of August 7, 2017, rendered in response to the mandatory referral submitted by the legislative body. It states that the challenged statute, having failed to obtain a qualified majority vote (votación calificada), violates the second paragraph of Article 167 of the Constitución Política. It concludes by requesting that the court declare, in its judgment, that Articles 224, 224 bis, 227, 236, and 236 bis of Ley No. 9544 are unconstitutional as contrary to the constitutional principles and provisions cited in this action.
"(…) the Parliamentary Statute (Estatuto Parlamentario) contains a normative gap, as it does not regulate the procedure or the grounds for declaring the nullity of parliamentary acts.
That said, the defect may reside in the final parliamentary act itself, constituting a substantive invalidating defect (vicio de fondo invalidante), which may be challenged through the constitutional processes for the defense of the Constitution (…). The other scenario — the subject of the consultation — is when the defect lies in parliamentary acts or omissions relating to parliamentary procedures, which, under certain circumstances (when it involves the violation of a substantial requirement or formality prescribed in the Constitution or, where applicable, established in the Reglamento de la Asamblea Legislativa, Article 73, paragraph c) of the Ley de la Jurisdicción Constitucional), would invalidate the final parliamentary act" (underlining and bold are in the original).
They consider that this Legal Opinion makes it clear that, in cases of substantial violations of procedure, the final parliamentary act is invalid from the perspective of Constitutional Law. They indicate that, in the proceedings for the formation of Ley 9544, the legislative due process (debido proceso legislativo) was violated in a substantive sense and, therefore, in their view, the law is unconstitutional, requesting that it be so declared (see sentencia No. 3220-00 de las 10 horas 30 minutos del 18 de abril de 2000).
"It is considered to concern the structure and functioning of the Poder Judicial (…) based on the powers set forth in artículos 167 of the Constitución Política and 59, subsection 1) of the Ley Orgánica del Poder Judicial, it is considered that the consulted text does affect the structure, organization, and functioning of the Poder Judicial, and in that regard the Asamblea Legislativa must take into account what Corte Plena has stated in relation to each aspect of the Bill under consultation, unless a qualified majority is obtained to depart from that binding opinion.
This has been communicated to the Legislative Branch in other consulted bills, such as those addressed in Corte Plena sessions numbered 57-14 of December 8, 2014, artículo XVIII; 13-15 of March 23, 2015, artículo XXXVII; 2-16 of January 18, 2016, artículo XVIII; and 14-17 of May 30, 2017, artículo XIX, among others, in which Corte Plena has deemed it necessary to indicate the impact of the bills on the internal structure of the Poder Judicial.
As a corollary, with respect to the bill processed under expediente nº 19922, a negative opinion must be issued, as it affects the structure, organization, and functioning of the Poder Judicial (…) It was agreed: 1.) To acknowledge the presentation by the Legal Director. 2.) To adopt the report on the consulted bill and bring it to the attention of the Legislative Plenary and the Special Committee Responsible for Examining and Reporting on the Bill entitled: 'Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, Expediente Legislativo Nº 19.922,' hereinafter referred to as: 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 submitted, with the express indication that this Corte issues a negative opinion and opposes the consulted bill, as it affects the organization, structure, and functioning of the Poder Judicial. 3.) To acknowledge the statements made by Magistradas Rojas, Arias and Magistrado Gamboa" (bold text is from the filing).
They argue that, in the exercise of the independence enshrined in artículo 9 of the Constitución Política, Corte Plena issued an agreement determining that, in effect, the matter of pensions related to legislative file number 19.922 and, therefore, Ley 9455, does affect the organization and functioning of this Branch of the Republic. They recall that artículos 152 and 153 of the Constitución Política establish that the Poder Judicial is exercised by Corte Plena and that it is responsible for resolving matters within its jurisdiction in an absolute manner, but more precisely, artículo 59 of the Ley Orgánica del Poder Judicial expands upon that explanation, indicating in its subsection 1) that among its functions is the duty to inform the other Branches of Government of the matters on which it must be consulted. They argue that the foregoing regulatory framework, as a parameter of constitutionality, derives from artículo 167 of the constitution, and that Corte Plena not only issued a negative opinion on the bill, but also determined that the content of Ley 9544 should have been mandatorily consulted, as stated in Sesión Nº 27, of August 7, 2017, artículo XXX, where it indicated, as stated:
"It is considered to concern the structure and functioning of the Poder Judicial (…)." They add that the foregoing is expanded upon by the content of artículo 59, subsections 21) and 22) of the Ley Orgánica del Poder Judicial: pursuant to subsection 21), Corte Plena must issue directives on the scope of the rule in pursuit of the principle of prompt and effective justice (justicia pronta y cumplida), clearly applicable to all administrative legislation on pensions and retirements in the Poder Judicial; and furthermore, pursuant to subsection 22), this is a constitutional mandate. They state that, for the foregoing reasons, Corte Plena has already, in exercise of its self-regulatory powers, determined that matters pertaining to pensions and retirements of the Poder Judicial do indeed relate to the structure and functioning of the Poder Judicial, and that any reform bill is therefore subject to mandatory consultation (emphases in the filing).
They state that, having considered the position of the Judicial Government (Gobierno Judicial) exercised by Corte Plena independently from the other Branches, the resolutions of the Tribunal Constitucional that, in their view, can help further substantiate the argument they defend regarding the mandatory nature of the consultation established in artículo 167 of the constitution are now of interest. They recall that in sentencia No. 2008-005179 de las 11 horas del 4 de abril de 2008, the Sala stated that:
"The majority of this Constitutional Tribunal holds that a bill concerns such matters when its articles contain explicit provisions ordering the creation, substantial modification, or suppression of strictly jurisdictional bodies (órganos estrictamente jurisdiccionales) or bodies of an administrative nature attached to the Poder Judicial, or when it creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions. It must be taken into consideration 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 legislature's freedom of configuration or design, which has no limit other than constitutional law" (emphasis added by the memorial).
Based on the cited ruling, they consider that it is perfectly clear that the creation, modification, or suppression (emphasis in original) of an administrative body attached to the Poder Judicial is directly related to the organization and/or functioning of that Branch. They therefore hold that what is stipulated in Articles 239 and 240 of Ley 9544, by creating a body of the Poder Judicial (the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) and eliminating functions from another body (the Consejo Superior del Poder Judicial), produced a modification in the structure of the Poder Judicial, in its organization and administration, and that for this reason the consultation required under constitutional Article 167 should have been carried out. They add that, on this point, there is another ruling in which the Sala explained and clarified that purely administrative matters — and not only jurisdictional ones — are directly related to the organization and functioning of this independent Branch of the Republic (emphasis in original), as set forth in ruling No. 2001-13273 of 11:44 a.m. on December 21, 2001, in which, when resolving a mandatory legislative constitutional consultation (consulta legislativa de constitucionalidad) concerning a bill to reform the Criminal Code insofar as it modified aspects relating to the organization or functioning — purely administrative — of the Archivo Judicial, the Court unanimously held the following:
"In the same manner, [the bill] modifies the scope of functions of the Archivo Judicial, increasing the volume of data it must record. All of the foregoing undoubtedly entails the modification of various rules concerning the functioning and organization of the Poder Judicial. Despite this, the Asamblea Legislativa failed to carry out the corresponding consultation with the Corte Suprema de Justicia (at least none appears in the certified copy of the case file submitted by the Speaker of the Directorio), and those matters had not previously been included in the texts consulted with the Corte Suprema de Justicia; the Sala therefore holds that a violation occurred of the duty imposed by Article 167 of the Constitución Política with respect to the judicial independence recognized by the constituent assembly to the Poder Judicial, and in that sense it must be understood that the proceedings conducted prior to the approval of the amended committee report (dictamen) are null and void from a constitutional standpoint and must be so declared" (emphasis in original).
They indicate that this ruling has several important points that must be mentioned in connection with matters of an administrative nature within the Poder Judicial — not exclusively jurisdictional — that are indeed directly related to its organization and functioning. They note that the reform in question concerned a modification to the scope of functions of the Archivo Judicial, as it sought to increase the volume of data that had to be recorded (bearing in mind that information is also recorded on individuals who have not had criminal cases and who use that information — the criminal record (hoja de delincuencia) — for employment purposes, for example), which has nothing to do, strictly speaking, with jurisdictional activity. They argue that, in this way, it is clear and evident that the creation of a body within the Poder Judicial, such as the Junta Administrativa del Fondo de Jubilaciones y Pensiones, which simultaneously and additionally strips powers from another body of great importance within the Poder Judicial — namely, the Consejo Superior — is absolutely and directly related to the organization and functioning of the Poder Judicial.
They consider that resolving the matter otherwise would call into question the independence established in Articles 9, 10, 153, 154, and 156 of the Constitución Política. They note that, for the foregoing reasons, Ley 9544 contains an insurmountable procedural defect in the legislative process followed and, consequently, a failure to comply with what is established in Article 126 of the Reglamento de la Asamblea and, plainly, in Article 167 of the Constitución Política, by failing to consult the Poder Judicial regarding the bill that was voted on in the first reading (primer debate) — thereby rendering it unconstitutionally unconsulted (inconstitucionalmente inconsulto) (underlined in original). They insist that the substitute text (texto sustitutivo) of the bill finally approved by the Comisión Especial at the session of July 27, 2017, was indeed consulted with the Corte Suprema de Justicia; however, that text was not the one ultimately approved in the first reading, but rather a new substitute text that had not been previously consulted, despite being directly related to the organization, structure, and functioning of the Poder Judicial.
They state that the Sala, in other rulings and in response to different realities or contexts, has resolved matters related to the mandatory consultation established in Article 167 of the Constitución Política, and that it is therefore necessary to be clear about the purpose and aim of each consultation in order to avoid erroneous interpretations. They reiterate that, in ruling 2008-005179 of 11:00 a.m. on April 4, 2008, cited above, the majority of the Sala:
"(…) holds that a bill concerns such matters when its articles contain explicit provisions ordering the creation, substantial modification, or suppression of strictly jurisdictional bodies or bodies of an administrative nature attached to the Poder Judicial, or when it creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions (…)." and they further state that in that ruling a distinction is drawn between strictly jurisdictional bodies and those of an administrative nature, and that in the present case — as in the action of unconstitutionality (acción de inconstitucionalidad) being brought — materially administrative functions are created or eliminated, such as the administration of the retirement and pension fund (fondo de jubilaciones y pensiones), the new rules and the new body created, and new responsibilities for the Poder Judicial (in addition to the elimination of the Consejo Superior's prior functions). They likewise recall ruling number 2001-013273 of 11:44 a.m. on December 21, 2001, also cited above in Voto 2018-005758, in which it was stated that:
"In the same manner, [the bill] modifies the scope of functions of the Archivo Judicial, increasing the volume of data it must record. All of the foregoing undoubtedly entails the modification of various rules concerning the functioning and organization of the Poder Judicial (…)." They argue that in that specific ruling it was analyzed that the function of the Archivo Judicial cannot be considered as inherent to the judiciary, but rather as an auxiliary body, and is therefore an eminently administrative body. They note that the Ley Orgánica del Poder Judicial establishes in Article 81, paragraph 12) — now repealed by Ley 9544 — that the Consejo Superior shall be the body responsible for administering the retirement and pension fund; and they ask what difference exists between the administrative activity (from the perspective of administrative law) carried out by the Consejo Superior as administrator of the pension fund, and that of the Archivo Judicial (under the authority of the Consejo Superior) as administrator of information of an administrative nature used both in judicial proceedings and in the administrative sphere — such as naturalizations, insurance policies (pólizas), admission to Colegios Profesionales, or purely international matters pertaining to the owners of the information contained in that database, which must be subject to the administrative legislation on personal data protection, Ley No. 8968 and its regulations.
They consider that there is no difference, and for that reason they hold that, in the case of the reform to the retirement and pension fund imposed by Ley 9544, the bill voted on in the first reading should have been consulted — all the more so given that it introduced more sweeping changes than the example used in Voto 2001-013273 of 11:44 a.m. on December 21, 2001, since Ley 9544 eliminates legal powers granted in the Ley Orgánica del Poder Judicial to the Consejo Superior, but also creates, ex novo, new functions as well as new bodies and new obligations for Corte Plena, all of which modifies the organization and functioning of the Poder Judicial. They maintain that the rulings analyzed and cited in Voto 2018-005758 support the need to carry out that mandatory consultation; and for that reason they affirm that it cannot be maintained that when the content and obligations arising from constitutional Article 167 make reference to the organization and functioning of the Poder Judicial, they refer solely and exclusively to the impact on the jurisdictional function and not on the administrative function.
They note that there are other rulings mentioned in ruling number 2018-005758 of 3:40 p.m. on April 12, 2018, that are important to take into account — for example, ruling number 1998-005958 of 2:54 p.m. on August 19, 1998, in which the Sala analyzed the term "funcionamiento" — without developing the meaning of the term "organización" — and which, in their view, is indispensable to the constitutional challenges they are raising:
"(…) the matters that mandatorily require a consultation with the Corte Suprema de Justicia are those that concern 'the organization or functioning of the Poder Judicial,' where the term 'funcionamiento' refers not only to aspects of the internal administrative regime of judicial offices (despachos judiciales), but also to the procedural rules governing the processing of the various matters submitted to those courts" (emphasis in original).
They note that, as the Sala indicated in that ruling, the matters that must mandatorily be consulted are those relating to organization and functioning, as derived from constitutional Article 167, and that the ruling immediately proceeds to analyze the term "funcionamiento" while setting aside an analysis of what should be understood by "organización" — an analysis that is carried out in rulings 2008-005179 and 2001-13273, since in that particular case it was not necessary, primarily because the mandatory legislative constitutional consultation on the bill to "Add a new Chapter IV, entitled 'On the habeas data remedy,' to Title III of the Ley de la Jurisdicción Constitucional," legislative file number 12.827, concerned a specific impact on the jurisdictional function of the Poder Judicial, not on the properly administrative function as is the case with Ley 9544 (emphasis in original). They argue that another relevant ruling is number 2001-013273, mentioned in ruling number 2018-005758, according to which:
"(…) the matters that mandatorily require consultation with the Supreme Court of Justice are those that concern 'the organization or functioning of the Judicial Branch,' where the term 'functioning' refers not only to aspects of the internal administrative regime of the judicial offices, but also to the procedural matters that govern the processing of the various cases submitted to those courts. And, in Costa Rica, constitutional jurisdiction is unquestionably judicial, given that both the Political Constitution and the Law of Constitutional Jurisdiction place this Chamber within the structure of the Court" (emphasis in original).
It is noted that there, once again, the aspect of "organization" was left unanalyzed, as it was unnecessary in that specific case; therefore, the constitutional right must not be interpreted restrictively to the detriment of the "organization" of the Judicial Branch, since, as stated in Voto 2008-005179, any undue interference in those matters must be avoided, and this is achieved through the procedure established in article 167:
"It must be taken into consideration that the constitutional provision 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 legislature's freedom of configuration or design, which has no limit other than the Law of the Constitution." They add that there are 2 rulings that merit mention: number 1995-003063, issued at 3:30 p.m. on June 13, 1995, and number 2002-004258, issued at 9:40 a.m. on May 10, 2002, which, because they deal with the subject of the Judiciary's Pension and Retirement Fund, could lend themselves to misinterpretation. They add that judgment No. 1995-003063 resolved an action of unconstitutionality against the General Pension Framework Act No. 7302 of July 8, 1992, and in that case the Constitutional Chamber, relying on what was stated in Voto 846-92 issued at 1:30 p.m. on March 27, 1992, determined that there was no constitutional obligation to consult the Judiciary on the bill because it did not affect judicial employees and therefore did not fall within the scope of article 167 of the Political Constitution.
They argue that in that ruling the court found the action inadmissible in that specific case, but on the basis that the law did not affect judicial employees — not because the matter concerned Judiciary pensions. They state that, moreover, if a pro homine and pro libertate interpretation is applied, the contrary situation — as with Ley 9544 — if it had affected judicial employees, it would have affected the functioning (not the organization, which again goes unanalyzed), and therefore the mandatory consultation would have been required, as is the case in the action under review, in which they consider that the persons working in the Judiciary are clearly and seriously affected. They further find that there is another matter — that of labor issues — which requires the mandatory consultation, since article 156 of the Constitution establishes that the Full Court (Corte Plena) is the superior body of all officials and employees in the judicial branch.
On the other hand, regarding judgment No. 2002-004258 issued at 9:40 a.m. on May 10, 2002, they indicate that in that case the Chamber heard consolidated actions of unconstitutionality filed against article 4 of Act 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 Judiciary No. 7333 of May 5, 1993, as well as, by connection and consequence, against article 33, subsection a), of the Invalidity, Old Age, and Death Regulations of the Caja Costarricense de Seguro Social. 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 for judicial employees that was challenged bore no relation to the organization or functioning of the Judiciary, for the definition of which it referred to what was said in judgment No. 1995-003063 issued at 3:30 p.m. on June 13, 1995.
They add that this jurisprudential foundation — judgment No. 1995-003063 — in number 2002-004258 refers only to the term "functioning" of the Judiciary but not to the subject of its organization, which has been better defined in judgment number 2001-13273 concerning the Archivo Judicial case, where the consultation established in article 167 of the Constitution was indeed deemed necessary. They consider that, based on Votos 2008-005179 and 2001-13273, properly administrative matters do relate to the organization and functioning of the Judiciary, and therefore the bill that culminated in Ley 9544 should have been consulted with Corte Plena pursuant to article 167 of the Constitution. They note that, in the case of the other rulings, none of them can be read to exclude the subject matter of Judiciary retirements and pensions from the mandatory consultation requirement; furthermore, the present case is not identical, because in the action under review there was indeed a modification to the organization and functioning of the Judiciary, by eliminating powers from the Superior Council (Consejo Superior) and, at the same time, creating a new body within the Judiciary.
They recall that Corte Plena had already indicated that this subject did give rise to the need for consultation because it related to the organization and functioning of the Judiciary. They note that the functional independence of the Judiciary, recognized in article 9 and reinforced in article 154, both of the Political Constitution, carries intrinsically — both under Administrative Law and from the perspective of Constitutional Law — the power of the Judiciary as represented by Corte Plena to determine its own organization, and that this power is being affected by the imposition — creation — of a new body called the Board of Administration of the Pension and Retirement Fund (Junta de Administración del Fondo de Pensiones y Jubilaciones), and furthermore by the elimination of powers from another body — the Consejo Superior — and the granting of new responsibilities, all without having provided the corresponding hearing — in the case of the bill voted on in first and second reading — and without subsequent observance of what is established in article 167 of the Constitution, given that Corte Plena issued a negative opinion (on the bill reported out of Committee, which required a vote of at least two-thirds of all members of the Legislative Assembly), all of this with the purpose of preventing, in particular, the intrusion of political interests in the Judiciary's function, since it is this organizational independence — both administrative and jurisdictional — that is also protected under article 167 of the Constitution.
They consider that, for the foregoing reasons, no error should be made in confusing or assimilating the jurisdictional function in the broad sense, including the auxiliary function, with the strictly administrative function; an error that was corrected in the analyzed rulings numbered 2008-005179 and 2001-013273, as well as in the agreement of Corte Plena.
They add that, in addition to this failure to comply with what its own interna corporis establishes, the Assembly must not lose sight of the fact that it is a representative body, not a sovereign one, and that beyond fulfilling the procedural path (íter procedimental) previously approved by itself, it must observe Constitutional Law, one of the primary rights of which is the principle of public disclosure (publicidad), which is a direct product of its representative character. They recall that the public disclosure of bills becomes the only means by which the activity of the people's representatives reaches the citizenry, thereby operating as a constitutional guarantee that prevents Parliament from acting with its back turned 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 Asamblea Legislativa serves as a link between the State and the political community, while making clear that sovereignty resides in the people, as established by artículo 105 of the Constitución Política.
They indicate that, for the foregoing reasons, compliance with the principle of public disclosure is required, since its actions (the formation of law in this case) must necessarily project outward to the community, given that the people must have knowledge of what is intended to be modified and the conditions under which that modification is being proposed; nevertheless, it is the case that the bill drafted by the Gremios del Poder Judicial on behalf of the judicial collective, as embodied in the substitute text (texto sustitutivo) approved on 13 de septiembre de 2016, was never brought to public attention through the mandatory publication. They consider that, for this reason, an essential procedural defect (vicio esencial) is present, compounded by the fact that the rule approved by the Plenario governing procedure 208 bis for considering bill 19.922 expressly requires the mandatory publication, and by failing to carry it out, due legislative process (debido proceso legislativo) — or the obligatory observance of form in the law-making process — is once again violated.
They warn that not even a waiver motion (moción de dispensa) for the publication of the bill under analysis exists, since, in accordance with the rules previously established under the legislative procedure approved by the legislative plenary for the processing of expediente número 19.922 at Sesión Ordinaria No. 37 of 30 de junio de 2016, and based on the provisions of artículo 208 bis of the Reglamento de la Asamblea Legislativa, that publication is mandatory, as is evident from subsection h of point 2 "Mociones de Fondo" of the procedure in question:
"h.- If, during the consideration of the case file (expediente) in committee proceedings, a substitute-text motion (moción de texto sustitutivo) were approved, or when the committee agrees on changes that substantially modify the bill, the Chair of the Committee shall request that the Legislative Board (Directorio Legislativo) agree to publish it in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Public Notice (Principio Constitucional de Publicidad), and consideration of the bill shall be suspended…" (emphasis added by the petitioners' brief).
They contend that no alternative interpretation can be given to the clear and plain language of the rule approved for processing the bill via Article 208 bis of the Rules of the Legislative Assembly (Reglamento de la Asamblea Legislativa), since the approved text constituted a new situation to be analyzed and discussed within the Special Committee (Comisión Especial) appointed for that purpose. They further contend that the failure to publish, in addition to everything stated above, contravenes the pre-established rules for the expedited procedure indicated, which in their view violates legislative due process (debido proceso legislativo). They argue that this was also not the text that the Special Committee ultimately approved on July 27, 2017, but that it was published in Supplement No. 189 of Gaceta Digital No. 147 of August 4, 2017, which in no way eliminates the requirement to observe the principle of public notice, nor the obligation to observe the rules agreed upon by the Legislative Plenary (Plenario Legislativo) for processing the bill through special procedure in the legislative formation of Ley 9544, via Article 208 bis of the Legislative Rules.
They emphasize that it must not be overlooked that this involves a procedure far more restrictive than the ordinary one in the law-making process, in which principles such as the democratic principle and the principle of public notice must be safeguarded—more punctiliously so. They argue that the fact that the text in question—the unpublished one—was not the text ultimately approved by the Special Committee on July 27, 2017—a text that was duly published—does not cure the defect of failing to publish the first substitute text. They contend that this rights-protective position on the mandatory nature of publication has been upheld by the Constitutional Chamber (Sala Constitucional) itself when ruling on Optional Legislative Consultations on Constitutionality (Consultas Legislativas Facultativas de Constitucionalidad) filed with respect to the approval of the bill known as Ley de Solidaridad Tributaria, legislative case file No. 18.261, resulting in judgment No. 2012-004621 of 16:00 hours of April 10, 2012:
"VIII.- This Constitutional Tribunal notes that when the Legislative Assembly, by way of a procedural motion under Article 208 bis of the Rules, creates a special procedure, compliance with and observance of that procedure 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, one that is consented to by a qualified majority (mayoría calificada), 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 (seguridad jurídica) (emphasized by this Tribunal in Voto No. 398-2005 of 12:10 hrs. of January 21, 2005) and the democratic principle. Consequently, in the face of a special and expedited legislative procedure, the deadlines, stages, and requirements previously established must be subject to a restrictive and rigorous interpretation, such that the degree of flexibility admissible with respect to ordinary procedures—through expansive interpretations—diminishes considerably in order to prevent an exception to the exception and, in general, a departure from the procedural course created, exceptionally, by a supermajority (mayoría agravada).
VIII.ESSENTIAL PROCEDURAL DEFECT OF AN EVIDENT AND MANIFEST CHARACTER RESULTING FROM THE FAILURE TO PUBLISH 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 pursuant to Article 208 bis, "If, during the consideration of the case file in committee proceedings, a substitute-text motion were approved, or when the committee agrees on changes that substantially modify the bill, the Chair of the Committee shall request that the Legislative Board agree to publish it in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Public Notice." In the present consultation, it is evident that the large number of substantive motions (mociones de fondo) approved, taken together, produced a substantial change to the original bill, (…) Such substantive motions do, admittedly, concern the subject matter regulated by the original and duly published bill, but their combined effect produces a substantial change (…) Consequently, from reading the content of the substantive motions approved in the special committee, this Constitutional Tribunal unanimously finds that there was an essential procedural defect (vicio esencial) of an evident and manifest character that breached the principles of public notice and equality by failing to publish them, since, taken together, they produced a substantial modification of the original text" (emphasis added by the petitioners' brief).
They argue that, on the basis of the foregoing, the failure to effect the publication specified in the special procedure established via Article 208 bis of the Rules of the Legislative Assembly, in the processing of the bill that became Ley 9544—in that the publication of the substitute text approved by the Special Committee on September 13, 2016 was omitted—constitutes an essential defect contrary to legislative due process in law formation, in violation of the democratic principle and the principle of public notice, and that the ultimate substitution of said text cannot validate the procedure. They further note that there is another ruling of the Chamber of interest, No. 2015-001241 of 11 hours 31 minutes of January 28, 2015, in which several articles of the Legal Entities Tax Law (Ley de Impuesto a las Personas Jurídicas) No. 9024 of December 23, 2011 were declared unconstitutional for violation of the principle of public notice:
"From the foregoing analysis and, in particular, from what has been highlighted, it follows that the unpublished substitute text introduced two sanctions that immobilize any company: the non-issuance of certificates of legal representation and the cancellation of the registration of documents for those in arrears. In this regard, it is likewise apparent that the substitute text approved essential aspects of the tax pertaining to sanctions that were not provided for in the original bill and that, therefore, warranted guaranteeing the constitutional principle of public notice. (…) in the formation of the law in question, substantial requirements or procedural steps relating to the publicity of the bill were violated—a principle that, as has been repeatedly stated, is fundamental in a Constitutional State of Law, all the more so when tax matters are at issue. Indeed, the failure to make a new publication of the bill, in order to guarantee publicity of the text and to ensure the broadest possible public and institutional participation, violated an essential aspect of the parliamentary procedure, the omission of which entails an unconstitutionality defect (vicio de inconstitucionalidad) in the legislative process" (emphasis added by the petitioners' brief).
They reiterate that the unpublished text in the process of forming Ley 9544 altered aspects such as retirement age, years of service, worker's contribution (aporte obrero), and years worked to be taken into account for calculating the pension or retirement benefit, hence the imperative need to comply with the publication requirement. They note that while the foregoing quotation refers to a tax reform and the Retirement and Pension System of the Judiciary (Régimen de Jubilaciones y Pensiones del Poder Judicial) does not carry that dimension, the fact of the matter is that it was indeed a topic of national interest, as it remained pending and received coverage accordingly by the media; and that, with respect to the action under review, the matter is of the utmost interest to a considerable segment of the population—namely, judicial employees—and, moreover, that the general public has a right to know and be informed of the reasons why certain sectors, groups, individuals, activities, goods, and services will be governed by one or another pension system, what the State's contribution or financial participation as Employer will be, as well as the eventual transitional provisions, especially when public funds are at stake: what pension amounts judicial employees would receive, how much of the public treasury (erario) the State would continue to contribute, whether and to what extent what have been improperly called "luxury pensions" would be limited, and who would be responsible for continuing to manage the funds from this fund.
They argue that all of these are matters of clear public interest, yet without justification they were not duly communicated to the general public and, in particular, to the judicial workforce through the mandatory publication of the bill approved on September 13, 2016. They note that another relevant ruling on the subject is No. 2017-019636 of 9 hours 15 minutes of December 6, 2017, according to which:
"In this regard, these circumstances and the obligation to publish bills are encompassed within the principle of public notice, which must serve as a vector of legitimacy for every representative body of popular sovereignty. In this sense, parliaments and their acts are of great value and transcendence to the democratic life of nations, and must conduct their proceedings with transparency and in full public view, as they are the political and legal centers of a Nation and the primary forum in which a fragmented society must be shaped. Now, the jurisprudence of this Chamber has been decisive in assigning significant weight to the principle of public notice as a substantial requirement within the legislative process, with respect to both ordinary legislation and constitutional amendment. (…).
Furthermore, this Chamber has explained with utmost clarity the scope of the obligation to publish bills. By ruling No. 2002-3458 of the Chamber" (emphasis added by the petitioners' brief).
They argue that the democratic exercise of transparency in the publication of bills cannot be reduced to the interpretation that it is a mere "formality" that can eventually be bypassed without consequence. They consider that the Asamblea Legislativa must understand that its work, carried out by delegation from the sovereign, must be accountable, transparent, and subject to public scrutiny, and that it therefore cannot be lightly concluded that a substitute text (texto sustitutivo), by not being published, causes no significant inconvenience in the formation of a law. 9) Failure to comply with the procedure established in the Reglamento de la Asamblea Legislativa by omitting the publication of the bill. They argue that Article 116 of the Reglamento de la Asamblea Legislativa establishes the mandatory publication of every bill, without exceptions, and that any other document the President of the Asamblea deems appropriate may also be published alongside it.
They add that Article 117 of the same body of rules provides that, upon forming the original file, the Departamento de Archivo shall send a copy for proper publication, and that all of this is connected to Article 121 of the same Reglamento, since in order to include a bill on the agenda (orden del día), five business days (días hábiles) must have elapsed since its publication in the Diario Oficial. They note that a bill was approved by the Comisión Especial in session on September 13, 2016, which, in order to be included on the agenda of the Comisión Dictaminadora, should have been published but was not. They consider that legislative due process (debido proceso legislativo)—that is, the procedure for the formation of Ley 9544—was clearly and egregiously violated; a contrary interpretation would open the door to a loophole (portillo) by which original texts or substitute texts subsequently modified by other substitute texts would not need to be published, thereby violating principles such as the democratic principle (principio democrático) and the principle of public notice (principio de publicidad), and above all enabling the bypassing of what is established in Articles 116, 117, and 121 of the Reglamento de la Asamblea Legislativa.
They affirm that the failure to publish is a fundamental defect (vicio esencial) in itself, so the fact that the text was subsequently replaced by another that was published does not have the effect of curing the identified defect (emphasis in the original submission). 10) Late publication of the substitute text of the bill approved in first reading (primer debate) by the Plenario Legislativo. They argue that another extremely serious defect related to the publication of bills and the foregoing is that, in legislative file (expediente legislativo) No. 19.922, the substitute text approved in first reading by the Plenario Legislativo on October 30, 2017, was published in Alcance 268 to Gaceta Digital No. 212 on November 9, 2017. They further note that on November 1, 2017, a group of legislators filed a constitutional consultation (consulta de constitucionalidad) regarding the bill that gave rise to Ley 9544; that is, at the time that optional consultation was submitted to the Sala Constitucional, the bill had still not been published, despite having already been voted on in first reading, thereby violating an essential step in the legislative procedure, since the publication of the substitute text of the bill should have occurred before its approval in first reading.
They affirm that doing so under those conditions violates the democratic principle by preventing citizens from knowing the substitute text of the bill prior to its approval, and they question what meaning can be ascribed to publishing retroactively a bill that has already been voted on in first reading. They consider that this late publication has the same effect as non-publication, since it prevented the public from knowing, prior to its approval, the final text of the bill, and from properly scrutinizing the legislative work—a possibility that was denied, making it a fundamental defect in the legislative procedure that cannot be cured by subsequent publication. They consider that, once again, that group of Deputies forgot that the exercise of their function was delegated by the sovereign, whom they must respect, keep informed, and to whom they must be accountable, since a bill cannot be voted on without the sovereign knowing what is to be voted on.
They conclude by requesting that Ley 9544 be declared unconstitutional in its entirety due to flagrant violations of legislative due process and the procedure for the formation of law, as well as for being contrary to constitutional principles, rules, and case law.
"(…) the standard that makes it possible to gauge the degree of proximity that a given society, at a particular historical moment, has achieved with respect to the ideal and its vocation to approach it as closely as possible. At a minimum, the democratic principle demands respect for the principles of political participation and representation—including everything pertaining to the respect for minorities—which form the basis of our political system. (…) procedural violations that constitute infringements of the democratic principle, the inescapable guiding direction of parliamentary activity, are unconstitutional. Likewise, legislative procedures that, by virtue of their accelerated or impetuous pace, give rise to debates bereft of a measured process of quality and reflection, and which also suffer from insufficient outreach of legislative activity, as guaranteed by Article 117 of the Constitución Política, constitute substantial defects.
Furthermore, the omission of publication and the failure to carry out constitutionally mandated consultations have been considered substantial procedural defects. As to the first aspect, since the Asamblea Legislativa is a body representative of the national community, the openness (publicidad) of parliamentary proceedings is essential, for sovereignty resides in the people and legislators are merely their representatives (Article 105 of the Constitución Política); accordingly, its activity must necessarily reach the entire community, to such an extent that some constitutional law scholars define it as a 'body of openness'" (see judgment number 2012-002675 of 11:52 a.m. on February 24, 2012).
He argues that this principle imposes three basic requirements on the enactment of legislation and parliamentary procedures:
"the Constitutional Chamber (Sala) has no doubt that the Reglamento de la Asamblea Legislativa, by establishing time limits for interventions by members of the Legislative Assembly (diputados) — both in Plenary sessions (Plenario) and in committees — promotes broad participation by all sectors in parliamentary debate; and furthermore, when it addresses the proportional participation of minorities, it does nothing other than implement what the Political Constitution guarantees with regard to quantitatively smaller groups that are also represented within it. Because the Legislative Assembly is a representative body of the national community, the public nature of parliamentary proceedings is essential, since sovereignty resides in the people and the members of the Legislative Assembly are merely their representatives (Article 105 of the Constitution); for this reason, the Assembly's activities must necessarily reach 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 Reglamento de la Asamblea Legislativa that give effect to that projection and the manner in which it is made effective must be classified as applied constitutional law, and any disregard of them as an essential violation" (see ruling No. 2000-003220 of 10:30 a.m. on April 18, 2000).
It adds that the jurisprudence of the Constitutional Chamber has established that "the omission of publication constitutes an essential procedural defect (vicio esencial) that invalidates the legislative process due to its relevance to the democratic principle (principio democrático)" (see ruling No. 2006-009567 of 4:10 p.m. on July 5, 2006). It also notes that, according to ruling No. 2013-008252 of 9:00 a.m. on June 21, 2013, "it is necessary to note that the principle of publicity (principio de publicidad) 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 parties." "(…) This quality elevates to the constitutional level the fundamental purpose of publicity: promoting citizen involvement in fundamental decisions of the State. If this aim is not harmed and it is apparent that there has been no genuine obstruction of popular participation, then an error in publication cannot, by itself, constitute an essential procedural defect in the legislative process" (see ruling No. 2013-008252 of 9:00 a.m. on June 21, 2013).
It states that, mutatis mutandis, if publication is carried out at a different procedural stage, it must be assessed whether a genuine obstruction of 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 process; if that is not the case, no defect of such nature would be present (see, in that regard, ruling No. 2018-003851 of 11:51 a.m. on March 7, 2018). It states that, for this reason, when the essential content of such principles is violated during the legislative process (iter legislativo), essential procedural defects arise that are susceptible to review through the various processes of constitutional review. It adds that the jurisprudence of the Constitutional Chamber has clarified that "the substantial requirements or procedures" referred to by the law governing constitutional jurisdiction are those expressly and more or less fully required by the Constitution, since it must be assumed that, having been specified in the Constitution and reserved exclusively to it, they must inescapably be classified as 'substantial'; as well as those established in the Reglamento Legislativo that 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 of 8:57 a.m. on July 15, 1994).
It considers that, in the process of approving Ley 9544, the democratic principle and the principle of publicity have been violated, and in that vein, it states that the substitute text (texto sustitutivo) approved in committee 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 committee report (dictamen) approved in the first reading (primer debate) was not published until November 9, 2017 — by which time the bill had already been approved in the first reading and the Constitutional Chamber was even already aware of a legislative constitutional-review referral (consulta legislativa de constitucionalidad) filed by several members of the Legislative Assembly. It argues that it cannot be ignored that the motion (moción) governing the procedure for approval of the challenged law required publication of the substitute text; therefore, the processing of the challenged law entailed a violation of the publication requirements established in the motion governing the procedure, bearing in mind that, as this involved the application of Article 208 bis of the Reglamento Interno de la Asamblea Legislativa, that motion constituted the regulation governing the processing of that bill; it can thus be concluded, without great difficulty, that the regulatory requirement to publish substitute texts constituted an essential requirement of that specific legislative procedure.
It states that, given that this was an abbreviated legislative procedure, the principle of publicity with respect to the texts discussed or approved was required to be observed with even greater rigor. It indicates that the weakness of an abbreviated procedure demands a more rigorous application of the publicity requirement, without admitting convalidation (convalidación) for failure to observe a requirement as important as publicity. It notes that the publication of bills is the only way in which the activities of the people's representatives reach the entire population, since it represents the projection of parliamentary activity outward, operating as a constitutional guarantee that prevents Parliament from acting with its back turned to the citizenry. It argues that the failure to publish the aforementioned committee reports resulted in the nullity of Ley 6955 for three reasons:
"The fundamental mission of Parliaments is to adopt decisions with the participation of the full range of political forces representing the various sectors of civil society. Parliamentary Law serves an instrumental function toward that end — though it also serves a political function — of facilitating and ordering that process. This body of law has the characteristic of arising from the interna corporis — from the self-regulatory capacity (auto normatividad) and autonomous dynamics of parliaments. Its limit, of course, is found in the Constitution, in the principles and values of the ideological system within which it operates. For this reason, this Constitutional Chamber has recognized that its role in matters of legislative procedure is solely to declare those substantial defects that violate the applicable constitutional principles and values, since otherwise it would be undermining Parliament's self-regulatory and functional capacity (interna corporis), distorting its role as guardian of constitutional supremacy into something resembling a kind of ad hoc senate" (see ruling No. 2007-009699 of 10:00 a.m. on July 4, 2007) (emphasis in the original brief).
It further adds that the Constitutional Chamber has also clarified that:
"Parliament's self-determination over its internal actions — recognized repeatedly by this Tribunal — the interna corporis, is one of its essential powers expressly recognized by the Political Constitution in Article 121, paragraph 22), and is inherent to the democratic system. The purpose pursued by granting the Assembly the power to self-organize is to regulate its procedures of action, organization, and functioning and, consequently, its internal organization within the parameters required by the democratic, equality, and non-discrimination principles, together with all their derivatives (…) the Constitutional Chamber considers that it must not interfere with Parliament's right of self-regulation, unless, as stated above, one of the aforementioned principles is violated, which in this specific case would entail an infringement of the right of amendment (derecho de enmienda), understood as the mechanism of participation available to members of the Legislative Assembly to influence the legislative formation process…Parliament has the right, in the exercise of its own self-regulatory power, to reconcile or balance — in the face of specific situations — not only the right of amendment, but also the other constitutional-rank principles that also bind its actions, such as respect for majorities and the principle of reasonableness; that is, the harmonization of each and every one of the constitutional principles that must coexist during the legislative process is a competence of Parliament itself, and specifically of the presiding officer of the debate and of the members of the Legislative Assembly, and it may be assumed that such functions are carried out in conformity with the legal order and its principles" (see ruling No. 2005-007961 of 5:50 p.m. on June 21, 2005) (emphasis in the original brief).
It states that, within the parliamentary legal order, the Internal Rules of the Legislative Assembly (Reglamento Interno de la Asamblea Legislativa, RIAL) constitute the technical instrument through which the political process is transformed into a legal process, and that for this reason the RIAL must be flexible, since it forms the dynamic core of that legal order whose purpose is to absorb and rationalize the tensions and demands of the political process that takes place in Parliament. It notes that the concept of flexibility of the RIAL must be combined with that of stability, in the sense that the RIAL constitutes a factor in the institutionalization of the political forces operating in Parliament, meaning that it responds to permanent demands in which the parliamentary legal order finds its reason for being and operating — demands that refer, for example, to the requirement that the majority act without preventing the minorities from carrying out their function, and that those minorities, in turn, must operate without usurping the functional powers of the majority.
It summarizes by stating that the limits on the Legislative Assembly's power to self-regulate consist in the unrestricted observance of the constitutional principles that underpin and legitimize the legislative procedure: the democratic principle, the principle of publicity, and the constitutional principle of legal certainty (seguridad jurídica). It refers to the limits on constitutional review of the "interna corporis" and states that the jurisdiction of constitutional courts to review the constitutional legitimacy of the "interna corporis" does not imply a violation of the principle of sovereignty and independence of Parliament, since such review is exercised in connection with the external expression of Legislative Power, whose activity, within a constitutional State governed by the rule of law with a rigid constitution, is subject to constitutional review. It recalls that Parliamentary Law in the modern pluralist democratic State is governed by the dialectical tension between majority and minority, so that its guiding principle can no longer be the guarantee of spheres exempt from Executive Power interference, but rather the realization of the superior value of political pluralism, guaranteeing respect for minorities and the openness of debates; however, it must not be lost sight of that legislative power is not programmatic, as opposed to administrative power, which is considered rule-bound.
It adds that constitutional review cannot invade the intangible sphere belonging to Parliament for the deployment of the substantive principles enshrined in the Constitution, under the pretext of reviewing the formative process (íter formativo) of parliamentary procedures, especially the legislative one. It states that, consequently, only when a defect is of such gravity as to undermine one of the essential elements through which the democratic principle is articulated within parliamentary procedures may the constitutional jurisdiction review 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. It argues that, in the specific case at hand, Article 208 bis of the RIAL violates the democratic principle. It indicates that there is an evident and substantial difference between an amendment to the Rules that seeks to organize and adapt the Assembly's day-to-day functioning to the times (two-party system to multi-party system) so that the Legislative Power is more effective in regulating situations that arise in the country, and the power to amend a specific article in order to process a particular bill.
It notes that the Constitution does not regulate the procedure for amending the RIAL, and that the RIAL itself is therefore the normative instrument that governs the procedures for amending the interna corporis; however, such procedures must conform to Constitutional Law in order to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure. It notes that, derived from its self-regulatory power set forth in Article 121, paragraph 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 amendments to its Rules and bills, in the terms established in Article 208 bis, without the rules of the procedure to be followed being defined in advance — constitutes a clear violation of the principle of legal certainty and of the democratic principle, given that legislators (diputados) have the right to know, in advance and with sufficient prior notice, the procedure to which they will be subject in the processing of a given bill, so as to be able to exercise the corresponding mechanisms of participation and oversight.
It considers that the Legislative Assembly's failure to adequately regulate the special procedures contemplated in the provision in question infringes the democratic principle; indeed, the establishment of special procedures for processing certain bills must conform to Constitutional Law in order to guarantee legal certainty, the right of representation, and the protection of the democratic principle within the legislative procedure, and also so that the mechanisms of participation and oversight may be exercised efficiently and effectively. It asserts that leaving to the discretion of a majority the procedure to be applied in each specific case, without it being made known in advance to all members of Parliament, causes harm to the democratic principle to the detriment of the minorities, insofar as nothing guarantees that, under the proposed scenario, the minorities will not be adversely affected in the exercise of the constitutional rights of their representatives in Congress.
It states that what occurred in the procedure approved for consideration of the challenged law constitutes a clear example of the foregoing, since, being a point of order (moción de orden), it does not in principle need to be publicized with sufficient advance notice, regardless of its complexity. It adds that amendments to modify it are likewise inadmissible, since any modification would have to take the form of a new proposal — for which the other parliamentary blocs are given an extremely short, almost immediate, period of time — and once the motion is approved by the majority, the minorities have no choice but to submit to the limited participation granted to them under the procedure created; this evidently violates the right of amendment (derecho de enmienda) and, consequently, the democratic principle. It argues that every legislator holds the constitutional right to participate in the lawmaking process and thereby to influence the final content of the law.
It contends that the Legislative Assembly certainly has the power to establish its own regulation, such as setting up special procedures; however, it 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 legislators, insofar as the failure to regulate such procedures with the necessary advance notice and participation by all legislators renders those principles ineffective. In its view, Article 208 bis of the RIAL violates the democratic principle, respect for which is essential to any examination of the conformity or non-conformity with the Constitution of any rule or act. It warns that, on this point, the Court has unanimously stated:
"what the legislative procedure seeks to ensure is compliance with the democratic principle within a society that has adopted it as its own political institution. At a minimum, the democratic principle requires observance of the principles of political participation and representation — including everything that concerns respect for minorities — which are the foundation 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. Similarly, legislative proceedings that, by virtue of being accelerated or rushed, give rise to debates that lack a measured process of quality and reflection, and that moreover suffer from a lack of broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution, constitute substantial infringements. Furthermore, the omission of publication and the failure to carry out constitutionally mandated consultations have been considered substantial procedural defects." (see ruling number 2012-002675 of 11 hours 52 minutes of 24 de febrero del 2012) (emphasis in the brief).
It is argued that, in this case, the challenged provision allows certain bills to be processed through an ad-hoc procedure established by a timely agreement of the majority, without taking into account minority participation in determining its specific rules. It is further considered that Article 208 bis of the RIAL also violates the principle of publicity (principio de publicidad), and in that regard it is recalled that the procedure used to approve the challenged law was created by means of a point-of-order motion (moción de orden); under Article 153 of the Reglamento, such motions may be introduced at any point during debate and must immediately be taken up for discussion. They need be announced only at the very moment they are introduced, which is insufficient to allow all legislators (diputados) to analyze them prior to their adoption. It is maintained that leaving to the discretion of a majority the procedure to be applied in each specific case—without prior notice to all members of Parliament—causes harm to the principle of publicity to the detriment of the minorities, insofar as nothing guarantees that, under the regime and application of Article 208 bis of the Reglamento Legislativo, the minorities will not be adversely affected as regards the exercise of the constitutional rights of their representatives in Congress.
Once the motion has been approved by the majority, the minority blocs (fracciones minoritarias) have no choice but to submit to the limited participation granted to them under the procedure established. It is stated that under Article 208 bis of the RIAL, the creation of an ad-hoc procedure for the processing of a given bill is not publicly announced but is simply read aloud in the Plenary (Plenario) and immediately put to a vote, without legislators or citizens having the opportunity to study it, to potentially submit observations in order to modify it, or to guarantee that the legislators' right to introduce motions is respected and that minority rights are not disregarded during the processing of the bill. It is further argued that Article 208 bis of the RIAL violates the principle of legal certainty (principio de seguridad jurídica), and from that standpoint there is no doubt that when the legislature fails to clearly establish the procedural rules for implementing the intent of Article 208 bis, or neglects to establish appropriate legislative regulations or practices to that end, it engages in an evasion or failure to fulfill its constitutionally assigned duties.
It is stated that the introduction of the cited provision into the Reglamento in the terms in which it was approved means that every time the majority decides at its discretion, it may—by means of a point-of-order motion—subject the bill under discussion to an exceptional procedure, leaving its consideration subject to procedures not established in the Reglamento; all of which results in a situation of complete legal uncertainty. It is considered that Article 208 bis of the RIAL, as currently worded, means that every time the majority discretionarily decides to do so, it may, by means of a point-of-order motion, establish an exceptional procedural rule for a specific bill in progress and subject its discussion and eventual approval to procedures not established in the Reglamento, thereby producing a situation of legal uncertainty both for legislators and for the Legislative Assembly (Asamblea Legislativa) itself as a parliamentary institution.
In summary, it is stated that Article 208 bis of the Reglamento de la Asamblea Legislativa constitutes a complete break with the aforementioned principles and allows the Legislative Branch (Poder Legislativo)—by means of a motion approved by two-thirds of the legislators—to undermine its condition as the body that guarantees popular representation, as designed in Title Nine of the Constitución Política of 1949, to the substantial detriment of the democratic principle, the principle of publicity, and the principle of legal certainty. In conclusion, it is requested that Article 208 bis of the Reglamento Interno de la Asamblea Legislativa be declared contrary to the constitutional principle of legal certainty, the democratic principle, and the constitutional principle of publicity, and that, consistent with the foregoing, Ley 9544 in toto be declared unconstitutional for having been processed under an unconstitutional provision and for violating the democratic principle and the principle of publicity.
They state that the change that is readily apparent is enormous, to the detriment of active judicial officials—bearing in mind, to mention just one factor, the enormous stress and workload to which judicial officials are subjected. They add that, regarding Article 224 bis, entirely new rules have been introduced that harshly penalize early retirement. They argue that the changes can be summarized in the following table:
Reforms to the Retirement and Pension Scheme of the Poder Judicial
| Item | Reform | Those Affected |
|---|---|---|
| Pension Calculation | 82% of 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 |
| Pension Cap | 4 million colones | Future retirees |
| Solidarity contribution | 35% to 55% on a graduated scale on the excess above the pension cap | Current retirees |
| Fund Contribution | 13% | Active and retired officials (current and future) |
They indicate that another matter they consider entirely confiscatory is what is set forth in Articles 236 and 236 bis of Law 9544:
"Article 236- The Retirement and Pension Fund of the Poder Judicial shall have the following revenues:
In no case shall the sum of the mandatory contribution and the special, solidarity, and redistributive contribution, and in general, the total of all legally applicable deductions applied to all pensioners and retirees of the Retirement and Pension Fund of the Poder Judicial, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled by right. In cases where 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 equals fifty-five percent (55%) of the total gross amount of the pension.
The funds obtained through the mandatory contribution (contribución obligatoria) established in this law shall be deposited into the Fondo de Jubilaciones y Pensiones del Poder Judicial.
(As amended by Article 1 of Law N° 9544 of April 24, 2018)
Article 236 bis — Special, Solidarity-Based, and Redistributive Contribution of Pensioners and Retirees In addition to the regular contribution (cotización común) established in the preceding article, pensioners and retirees (pensionados y jubilados) whose pension benefits (prestaciones) exceed the amounts to be established shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following schedule:
In no case shall the sum of the special, solidarity-based, and redistributive contribution and all deductions (deducciones) applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial exceed fifty-five percent (55%) of the total gross pension amount (monto bruto de la pensión) to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be adjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.
The funds obtained through the special, solidarity-based, and redistributive contribution established in this law shall be deposited into the Fondo de Jubilaciones y Pensiones del Poder Judicial." They indicate that this amendment to the previous regime merely increased the contribution percentages to the regime and that, in their view, this makes the law entirely confiscatory, disproportionate, and unjust. They further note that, with regard to TRANSITORIO VI, which provides:
"TRANSITORIO VI.— Judicial employees (servidores judiciales) who meet the requirements to acquire the right to a pension as established by the text of Title IX of Ley N.º 7333 of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions set forth in that text." 2) They contend that this transition period (período de transición) between the law introducing the reform and the reform itself is far too short, rendering it disproportionate, irrational, and arbitrary, thereby infringing upon the consolidated rights (derechos consolidados) of judicial officers who wish to retire. In that regard, they ask that one consider a person who has worked for more than 25 years and who, under the previous law, had 5 years remaining until retirement but who, under the reform, now needs 10 more years to reach the 35-year threshold — in other words, the required length of service to retire under the reformed law is doubled.
They further contend that the transitional period (transitorio) for being able to apply under the reformed law should be considerably longer — at least 10 years. They believe the reform to the Poder Judicial pension scheme (régimen de pensiones) blatantly contravenes the principle of legal certainty (seguridad jurídica), understood as "the confidence that citizens may place in the observance and respect of situations arising from the application of valid and in-force legal rules," which is nothing other than every citizen's confidence in valid and in-force legal orders, such that no breach of this system that would erode their rights may be permitted. They add that one of the fundamental principles of every democratic constitutional legal order is legal certainty, given the need for citizens to know at all times what to expect in their relations with the State and with other private parties; it must be understood as the confidence that citizens may place in the observance and respect of situations arising from the application of valid and in-force rules, and it rests upon the concept of predictability, so that each person knows in advance the legal consequences of their own conduct.
They further argue that this constitutional standard — which bars the retroactive application of rules governing qualifying-period rights (derechos de residencia) (conforme al convenio 102 de la OIT) in pension schemes — forms part of the legal order and thus represents protection and confidence for all citizens who maintain contribution periods (períodos de estancia) in pension schemes. 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 to which workers in the sector must belong 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, the changes imposed by the bill undermine the confidence and legal certainty of judicial officers, given the overwhelming difference entailed by the reforms: increases to the retirement age, the contribution amount, and the pension calculation method.
They warn that the Sala Constitucional itself has recognized the right to retirement (derecho a la jubilación) as a fundamental right integrated within the right to social security (derecho a la seguridad social): "(…) The Sala has repeatedly held that this right entails that public authorities shall maintain a public social security scheme for all citizens at the highest level, in a manner that guarantees assistance and provides sufficient social benefits in situations of need in order 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 on a mandatory basis. The objective scope assumes the principle of generality, insofar as it protects situations of need, not to the extent that such situations have been previously anticipated and insured, but insofar as they actually materialize.
It further incorporates the principles of adequacy of protection, according to quantitative and qualitative standards, and of automatic protection, translating into adequate and immediate protection in matters of illness, disability, old age, and death (…). Accordingly, the principles of the Right to Social Security are: universality, generality, adequacy of protection, and social solidarity" (see ruling número 3483-2003 de las 14 horas con 05 minutos del 2 de mayo del 2003).
In this regard, it must be noted that this right ceases to be a mere expectation and is acquired from the moment of entry into the retirement scheme (régimen jubilatorio), at least as a general right of membership therein, and from the moment the beneficiary meets the factual conditions established for receiving the benefit, as a right to the current benefit, without it being necessary to have claimed it, let alone to have had it declared, recognized, or begun to receive it. (…)" (see ruling 1147-90 de las 16 horas del 21 de septiembre de 1990). They contend that, accordingly, the right to retirement as a human right — under the conditions that retired persons have been enjoying it — cannot be modified because it has become a vested right (derecho adquirido); but moreover, the reform should have been carried out in a reasoned and proportionate manner, and not in a disruptive, abrupt, disproportionate, and abusive manner with respect to the rights of judicial officers and of retirees under the scheme.
Therefore, the constitutional precept does not consist of the idea that, once born into legal existence, the rule connecting the fact to the effect cannot be modified or even abolished by a subsequent rule; what it means is that — as explained — if the conditioning premise has occurred, a legislative amendment changing or eliminating the rule will not have the power to prevent the expected conditioned effect from arising under the prior rule. This is so because, as stated, what is relevant is that the state of affairs the person enjoyed was already defined as to its elements and effects, even if those effects are still being produced or have not yet begun to be produced. Accordingly, what the person has a right to is the consequence, not the rule" (see ruling número 2765-97 de las 15 horas 03 minutos del 20 de mayo de 1997).
They consider this variation to be confiscatory and contrary to the Constitution, as it subjects active employees and retirees (jubilados) of the Poder Judicial to a confiscatory penalty (pena de confiscación) expressly prohibited by Article 40 of the Constitution as cited above. They note that the measures proposed by the reform entail a reduction of approximately 50% in the pension rights of judicial workers. They indicate that the reform, as embodied in the challenged Law, violates Article 40 of the Constitution, imposes a confiscatory penalty — particularly on those already retired from the Poder Judicial, though also on active employees — and that it is likewise harmful to the principle of equality (principio de igualdad) and contributory capacity (capacidad contributiva), and they request that it be declared unconstitutional. 8) In addition to the foregoing, they consider Transitorio VI of the challenged Law to also be unconstitutional, as they deem it harmful to the principles of equality, reasonableness, and proportionality (razonabilidad y proporcionalidad).
They recall that, pursuant to that Transitorio, judicial employees (servidores judiciales) who meet the requirements to acquire the right to retirement under the provisions of Title IX of Ley 7333 of May 5, 1993, within the 18 months following the enactment of Ley 9544, may retire under the provisions established in the prior Ley 7333. They argue that, in Costa Rica, for the analysis of the right to retirement (jubilación), it is essential to understand and appreciate the scope that has been given to ILO Convention 102 (Convenio 102 de la OIT), which has been widely discussed in the country and before the Sala Constitucional. In this regard, they state that there are 3 rulings of the Sala that must be mentioned: 5261-95 of 15 hours 27 minutes of September 26, 1995; 6842-99 of 8 hours 45 minutes of September 3, 1999; and 2000-000673 of 9 hours 48 minutes of January 25, 2000, which, together with opinions of the Procuraduría General de la República, revolve around the concept of residence established by ILO Convention 102 in Article 29 concerning the manner in which the concept of residence is interpreted; a concept that, at first, was integrated progressively and in a manner respectful of workers' rights, such that residence was understood as a period of time that allows the conditions of a worker to be maintained within a social security scheme (régimen de seguridad social), and that, once that period was exceeded, any subsequent changes would not be applicable to that worker.
They argue that this progressive approach, respectful of human rights and mindful of the principles of reasonableness and proportionality, meant that many reforms were required to respect such periods or terms of participation, which could not be disregarded, as was the case with Ley 7531 concerning the pension scheme for teachers. They add that, notwithstanding this, the Sala Constitucional clarified its position in the year 2000, indicating that the term "residence" refers to the general provisions of the same treaty, in which residence is defined as set forth in subparagraph b: "the term 'residence' means ordinary residence in the territory of the Member, and the term 'resident' designates a person who ordinarily resides in the territory of the Member" (emphases are from the written pleading (memorial) of the action). They note that this approach by the Sala Constitucional established that membership in a scheme for a period of 20 years did not enjoy supra-constitutional protection under the treaty, but rather that this was a concept intended to denote territorial location.
They indicate that a certain school of Costa Rican constitutional thought has sought to impose on the Sala the obligation to explain the differences in interpretation that this principle might produce, given that Article 29 of ILO Convention 102 had been interpreted in a progressive and protectionist manner through 1999, and that in 2000 there was a change in approach that eliminated the protection afforded by more than 20 years of participation in retirement schemes (regímenes jubilatorios). They add that ILO Convention 102 seeks to protect workers as contributors to social security schemes — for example, pension funds (fondos de pensiones) — and that this protection is calibrated according to a series of conditions specific to each worker, so as to align, in the most rational and proportionate manner, their rights vis-à-vis the State and even vis-à-vis other workers, such that there exist periods and terms that differentiate among various types of participation and membership in schemes. They consider it necessary to cite the following article:
"Article 29 1. 1. The benefit (prestación) referred to in Article 28 must be guaranteed, in the covered contingency, at least:
(a) to protected persons who have completed, before the contingency occurs, in accordance with prescribed rules, a qualifying period (período de calificación) which may consist of thirty years of contribution (cotización) or employment, or twenty years of residence; (…)" They argue that section 29.1(a) guarantees the benefit (or pension) when thirty years or twenty years of residence have been completed; however, they question what is to be understood by twenty years of residence and, above all, how this affects the guarantee for the worker benefiting from this provision. On this point, they argue that what this term establishes is a reasonable period of protection for the worker, which distinguishes that worker from others by virtue of permanence in a place, location, or territory (using the same terminology as the convention), which allows the worker's benefit (pension) to be guaranteed.
They indicate that, in this regard, they propose to the Sala Constitucional 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 that by understanding the temporal dimension established by this rule, a form of protection based on belonging, connection, or stay may be discovered—one that must not be overlooked; otherwise, a foreign national residing for twenty years in the country could have his or her benefit guaranteed under a pension scheme (régimen de pensiones) by reason of twenty years of "residence" in the country, unlike a national in the same situation. They consider that this invidious distinction is not what the convention seeks; on the contrary, what it establishes is a parameter of non-retroactivity (irretroactividad), conscious that two decades imply a connection to the system unlike any other.
They add that, in the event that the Sala Constitucional upholds its positions regarding the term "residence" and how to interpret it, a second ground of unconstitutionality of Transitorio VI must be reasoned—one based on a violation of the principles of reasonableness and proportionality.
They argue that, in this area, said principle requires that rules aim to prevent what is called a "conflict or opposition of interests" so as to ensure the impartiality of public servants; likewise, the means used by the State to prevent such conflicts must not place their addressees in a situation that renders the enjoyment of their fundamental rights illusory. They affirm that, accordingly, laws must be appropriate (reasonable) instruments or means to the ends established in the Constitution; the need for any act to conform to constitutional meaning is what permits reference to the principle of reasonableness derived from the principle of constitutional supremacy, such that when a jurist identifies a provision that does not conform to constitutional principles, it is clear that a judgment must be made as to its reasonableness in order to determine whether it is irregular or not under the Constitution, in accordance with the requirements of the principle of constitutional supremacy.
They indicate that reasonableness is determined so as to prevent those abusive acts of the State that contravene the principles established in the Constitution; thus, constitutional supremacy becomes a guarantor of the Constitution, not only as a set of rules of superior rank, but as an order of principles reflecting the social will of a given people. They note that, starting from the premise that the principle of reasonableness has constitutional status and cannot be exempt from analysis in every State decision or law-making process, it must be understood that the provision of Transitorio VI strikes in a flagrant, direct, and egregious manner against said principle, particularly with regard to the suitability (idoneidad) of the measure, and in that sense they affirm that when the measure only seeks to mitigate harm by affecting the rights of a few, it is unsuitable and therefore disproportionate.
They consider that the suitability of the measure fails the reasonableness test when other measures are available that, by balancing their effects, could achieve the same desired result—noting that this is the first deficiency from which the reform and Transitorio VI suffer. They add that, furthermore, the measure itself must be analyzed as to its unsuitability and lack of proportionality in the strict sense. They acknowledge that the matter of pensions has not been uncontroversial in Costa Rica, and also that the legal order responds to realities in which mutability renders it flexible, adaptable, and convenient for regulating social life; however, they consider that this principle of mutability of the legal order cannot be blind to the principles of reasonableness and proportionality. In the case of the transitional provision in question, they consider that there is an invidious, unreasonable, and above all disproportionate differentiation between persons who have eighteen months remaining to acquire their pension entitlement and others who do not—which results in lumping together officials who have worked for one day alongside those who have worked twenty-eight years, three months, and twenty-nine days for the institution, all within a single "bubble" of identical legal effects, such that persons in considerably different circumstances must bear the weight of the reform equally.
They add that treating different categories of workers who belong to the scheme for periods that differ by decades as a single variable is also contrary to the principle of equality, which has a correlative in the principle of reasonableness. They note that the relationship between the principle of reasonableness and the principle of equality raises as its essential problem the discernment of a normative decision and how it would allow unequal treatment to be reasonable—a question they consider unresolved in Transitorio VI, since its rationale is inconsistent, or even disproportionately burdensome, for one segment of the judicial workforce, with no gradation whatsoever that would allow the rule to be applied in a manner respectful of the various levels of tenure in the scheme.
They consider that the legislature cannot, setting aside the evident deficiencies and negligence of the pension fund, confine its solution to the shoulders of a single generation of workers and distribute the effects among the related sectors, including the State itself—whose objective liability set aside the oversight and regulation of this scheme—given that the reform was presented as urgent. They indicate that, following this line of reasoning, the trade union proposals for the reform maintained the possibility of a phased transitional provision that would be necessary, suitable—understanding suitability in terms of the triad of effects on the State, administration, and workers—and proportional.
75. In a resolution by the Acting President (Presidencia a.i.) of the Constitutional Chamber—Justice Araya García—issued at 11:25 a.m. on June 5, 2018, regular Justices Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, Salazar Alvarado, and Substitute Justices Hernández Gutiérrez and Esquivel Rodríguez were removed from consideration of this matter, with an order that the relevant notice be communicated to the President of the Supreme Court of Justice so that their substitution could proceed pursuant to article 6 of the Ley de la Jurisdicción Constitucional.
76. By means of a memorandum added to the electronic case file (expediente electrónico) on June 11, 2018, the President of the Supreme Court of Justice sent the results of lottery #6155 conducted for the substitution of Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Justice Nancy Hernández López, and Substitute Justices José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez, who had recused themselves from hearing this action for unconstitutionality (acción de inconstitucionalidad). It was reported that the substitute Justices selected were: 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 Justice Lucila Monge Pizarro; on June 13 following, Substitute Justices Ana María Picado Brenes and Alicia Salas Torres; on June 14 following, Substitute Justice Mauricio Chacón Jiménez; on June 19 following, Substitute Justice Anamari Garro Vargas; and on June 21 following, Substitute Justices Ana María Picado and Lucila Monge Pizarro (who reiterated the motion) and Ileana Sánchez Navarro, filed recusal motions (inhibitorias) in this case file in the same terms as they had done in the principal case number 18-007819-0007-CO.
78. In a resolution issued at 9:36 a.m. on June 28, 2018, the Acting President of the Constitutional Chamber—Justice Delgado Faith—ordered the removal from consideration of Substitute Justices Lucila Monge Pizarro, Ana María Picado Brenes, Alicia Salas Torres, Anamari Garro Vargas, and Ileana Sánchez Navarro, and Substitute Justice Mauricio Chacón Jiménez, and ordered that the relevant notice be communicated to the President of the Supreme Court of Justice so that their substitution could proceed pursuant to article 6 of the Ley de la Jurisdicción Constitucional.
79. By means of a memorandum added to the electronic case file on July 3, 2018, the President of the Supreme Court of Justice sent the results of lottery #6227 conducted for the substitution of Substitute Justices Anamari Garro Vargas, Ileana Sánchez Navarro, Alicia Salas Torres, Lucila Monge Pizarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes, noting that because the Chamber had originally requested 6 substitutes and only 3 were available, the lottery was conducted with the available substitutes, and that Jorge Araya García, Hubert Fernández Argüello, and Rónald Salazar Murillo were selected.
80. Substitute Justices Alicia Salas Torres (who reiterated her motion), Hubert Fernández Argüello, and Rónald Salazar Murillo filed—on July 4, 2018—recusal motions to hear this action for unconstitutionality in the same terms as they had done in the principal case file 18-007819-0007-CO.
81. The Acting President of the Constitutional Chamber, Justice Jorge Araya García, in a resolution issued at 1:25 p.m. on July 4, 2018, removed Substitute Justices Fernández Argüello and Salazar Murillo from consideration of this proceeding.
82. By means of a resolution of the Acting President of the Constitutional Chamber—Justice Jorge Araya—issued at 2:10 p.m. on July 4, 2018, and based on the ruling issued at 2:40 p.m. on August 3, 2018, in principal case file number 18-007819-0007-CO, Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared enabled to hear this action for unconstitutionality, with an order to continue processing the case file.
83. Justice Fernando Cruz Castro entered an appearance before the Chamber by means of a brief filed on February 12, 2019, to state that in this case file and in all others consolidated (acumulados) with the principal case number 18-007819-0007-CO, he, together with other Justices, had submitted a recusal motion on the grounds that the reform to the Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial was being challenged. He argues that, although said recusal was initially accepted, all the Justices were subsequently enabled on the basis of the principle of non-waivability of jurisdictional powers (irrenunciabilidad de las competencias). He further 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 in which he has been named as a respondent party or intervening party in his capacity as President of the Supreme Court of Justice, he has requested recusal because he has considered it improper to act as a judge in a matter in which he has been called as a party in that capacity, finding that the above-referenced case files present the same situation, since he cannot participate in the vote on those actions given that, as President of the Court, he will be called upon to report on the merits, as the provisions at issue relate to the Judicial Branch.
He argues that, for this reason, he files this recusal motion and requests that the record be remitted to the President of the Constitutional Chamber for a ruling in accordance with the provisions of article 6 of the Ley de la Jurisdicción Constitucional.
84. By means of a resolution issued at 1:08 p.m. on February 12, 2019, the President of the Constitutional Chamber—Justice Fernando Castillo—and based on the ruling issued at 2:40 p.m. on August 3, 2018, in principal case file number 18-007819-0007-CO, removed Justice Fernando Cruz Castro from consideration of this matter and declared Substitute Justice Marta Eugenia Esquivel Rodríguez enabled to hear this matter, ordering the continuation of the processing of the case file.
85. Regarding Action for Unconstitutionality No. 18-008591-0007-CO. In interlocutory resolution of the full Chamber number 2019-002485, issued at 10:02 a.m. on February 13, 2019, it was ordered that action for unconstitutionality 18-008591-0007-CO be consolidated with the case that remained as principal case file number 18-007819-0007-CO, and that it be treated as an expansion thereof, on account of the evident connection between the claims raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved.
They state that said agreement provided that at least 4 persons would participate in carrying out the study, with their identities specified therein, and that any changes to that team had to be communicated to the counterpart of the Poder Judicial, a requirement that was not met. They indicate that the studies issued by the IICE—as the contracted advisory body—do not support the conclusion that, for the fund's sustainability, the last 240 reference salaries must be used; rather, they recommend only 120; nor do they support a grant of 82% of the aforementioned calculation as the applicable percentage; rather, they recommend 85%. With respect to official memorandum (oficio) IICE-186-2017, they note that it is a document that: a) was signed exclusively by Mr. José Antonio Cordero Peña, with no other person signing or endorsing it; b) is addressed to Ms. Nery Agüero Montero; c) does not constitute an addendum to the study comprising 6 products prepared by the IICE; d) makes only a tangential reference to products IICE_3 and IICE_4, and to no other product delivered to the Corte pursuant to the agreement with the UCR; e) the 6 IICE products must be viewed, analyzed, and assessed in their entirety in order to issue an opinion such as the one set forth in IICE_5 and IICE_6.
They state that, for the fund's financial sustainability, the official study recommendation arising from the IICE products (6 in total) is that a 50% reduction shall apply to the portion of current pensions and retirement benefits that exceeds the cap; however, once again without a technical-scientific basis, the legislature, in Article 236 bis of Ley 9544, inexplicably applies smaller reductions which, under actuarial criteria, diminishes the fund's returns. They argue that the Sala Constitucional, in judgment No. 2017-011714 of 12:00 noon on July 26, 2017, determined that, in order to make changes to a pension scheme, adequate technical opinion (criterio técnico) must be available, as the ILO (OIT) has also maintained. They add that, although that obligation limits the possible discretion because technical opinions are required, Articles 224 and 224 bis of the challenged Ley 9544 lack a technical basis, thereby giving rise to the prohibition of arbitrariness.
They state that this is evidenced by the fact that, in order to impose a retirement pension of 82% of the calculation resulting from the average of the last 240 salaries (20 years of salaries), there is no technical study to justify it. They reiterate that the recommendations arising from the actuarial study comprising 5 preliminary products and 1 final product—without reference to any extraordinary product—do not support such a recommendation, under those conditions, for maintaining the actuarial solvency (solvencia actuarial) of the fund. They indicate that no justification has been provided for the actual impact on the fund's reserves of raising the reference period from the proposed 10 years to 20 years, nor is the necessity for that increase in years apparent, since the study that served as the basis for the members of the Asamblea Legislativa (diputadas y diputados) and which was issued by the IICE of the UCR across the 6 products delivered to the Poder Judicial established a cap of 10 years of received salaries (last 120 salaries), and not the last 20 years of received salaries (240 salaries), for the pension calculation.
They allege that no objective analysis can be made if only products IICE_3 and IICE_4 are considered in isolation, since the entire contracted study must be viewed and analyzed from the perspective offered by IICE_6. They note that memorandum IICE-186-2017 makes only a tangential reference to products IICE_3 and IICE_4, even indicating that those studies demonstrated adequate solvency of the fund. They indicate that, if an objective analysis cannot be made of only 2 products out of a final whole, and the fund's solvency is demonstrated by the calculation based on 120 salaries, they cannot understand why the Asamblea Legislativa raises the figure to the last 240 salaries without technical support. They add that the table contained in the product designated IICE_6, under what is called the "optimistic economic scenario," presents a real rate of return of 4% and, under that scenario, produces a surplus of 0.43 million million.
They indicate that, since this matter has no technical foundation, it cannot be regulated carelessly or arbitrarily, and doing so taints Ley 9544 with unconstitutionality under the constitutional principle of prohibition of arbitrariness. They state that the illegitimate basis used for the challenged Article 224 to establish a retirement pension of 82% of the amount resulting from the calculation based on the average of the last 240 salaries (20 years of salaries) was a document generated from a consultation with one particular individual and not with the IICE team—a consultation made by the Special Committee (Comisión Especial) tasked with issuing a ruling on the bill that gave rise to Ley 9544; that document consists of memorandum IICE-186-2017 of August 18, 2017, signed exclusively by Mr. José Antonio Cordero Peña, which cannot and must not be considered an acceptable technical instrument for expanding the salary reference period from 120 to 240 salaries and for reducing the applicable percentage from 85% to 82%.
They state that that document cannot be equated with the technical study conducted by the team contracted by the Poder Judicial, nor does it even constitute an addendum to that study. They allege that no reference is made to whatever validity a document prepared and signed solely by one person—who is not even part of the minimum group of persons required to participate in the preparation of the contracted study—could have. They note that memorandum IICE-186-2017 is a personal opinion of Mr. José Antonio Cordero Peña, addressed to Ms. Nery Agüero Montero, meaning that it was not even addressed to Corte Plena, nor copied to it. They argue that, consequently, that document cannot and must not be considered an addendum to any technical study capable of providing a basis for the challenged provisions.
They add that the signatory of that official letter did not indicate which members of the IICE team allegedly share the position set forth therein; nor was the document signed by those persons, meaning the document lacks objective elements that could give it sufficient weight to contradict, in IICE products 3, 4, and especially 6, the percentage to be received as a retirement pension (jubilación) (85%) resulting from the calculation of the last 120 salaries (10 years)—a calculation that already demonstrated the solvency of the pension fund (fondo de jubilaciones) in question. They further add that, even if one wished to treat official letter IICE-186-2017 of August 18, 2017 as an extension of those studies, or as a valid new study, it is in fact neither, and does not constitute a scientific, technical, or objective basis to justify the Asamblea Legislativa—without a genuine technical study—having reduced by 3% the amount to be received as a pension or retirement pension (pensión o jubilación), and having extended by 10 years the salary calculation period used to determine that final pension percentage.
They state that the technical reports submitted by the IICE, products 1 through 6, demonstrated how, by calculating based on the last 120 salaries or 10 years of salary, the requirement of actuarial solvency (solvencia actuarial) was met, as was the requirement that the final pension or retirement pension amount equal 85% of the result of that calculation. They argue that it is contrary to the constitutional principles of proportionality (proporcionalidad) and reasonableness (razonabilidad) for the Asamblea Legislativa, without technical justification, to have "aggravated" those requirements in an arbitrary manner, without technical support, and above all without necessity, since the purpose of the reform was already achieved using the last 120 salaries as the calculation basis and granting a retirement pension 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 greater number of years or salaries earned for purposes of calculating the final retirement or pension benefit.
They consider that the measures adopted in Ley 9544 are excessive, disproportionate, and unreasonable, which renders the decision unsuitable, disproportionate, and unconstitutional. They note that the reform contained in Ley 9544 admits a range of alternative means of regulating the matter without causing serious harm to the workers of the Poder Judicial, such as allowing the Administrative Board (Junta Administradora), on the basis of recent and objective technical studies, to modify those parameters. They recall that the Sala has held that when an alternative and less burdensome means is available and not used, this will result in a declaration of unconstitutionality of the measure implemented, for violating the principle of proportionality in the broad sense, whenever it is shown that, by resorting to that alternative means, the same levels of effectiveness in achieving the sought-after result can be attained as with the more burdensome measure—a situation that is not respected in the challenged regulations.
They insist that less burdensome measures could have been adopted, since the objective of actuarial sustainability of the fund was guaranteed by the recommendations contained in the 6 products issued by the IICE. They consider that this reform violates the principle of proportionality to the detriment of the workers of the Poder Judicial.
They further 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 pension system (régimen de pensiones) of the Poder Judicial as a response to an urgent need regarding its actuarial sustainability (see judgments 3929-95 of 15 hours 24 minutes of July 18, 1995; 2000-010826 of 14 hours 59 minutes of December 6, 2000; and 5236-99 of 14 hours of July 7, 1999, among others).
They state that this question has no answer in the report that was prepared, and that it is of vital importance that a technical and scientific explanation be provided for why that assumption was used, since a difference of one percentage point in real returns makes the difference between applying one or another set of fund sustainability criteria. They add that, for one study, only the last 7 years were taken into account, although for the calculation to be performed, the report indicates that only data from 2013 to 2015 may be applied—that is, only 3 years—despite the fact that the UCR-IICE-Poder Judicial agreement established that the most recent available years (2005 to 2015) should be taken into account. They add that if the "actual" data from 2000 to 2017 is used, it can be observed that the fund has maintained a real return of more than 4.57%, and it therefore does not appear justifiable, in any way, to use 3% as the actual baseline real return for the next 100 years.
They indicate that the actual rate shown in Table No. 3 of point 4.2 of IICE_6 reflects a real return of 4.9%; however, that same point concludes that the average annual real rate of return on long-term investments in colones expected for the coming years will be in a range of 4% +/-1%, which they argue is incorrect, since in the report the real return is not 4% but nearly 5%—meaning that the expected average annual real rate of return on long-term investments in colones for the coming years should be in a range of 5% +/- 1%, or between 4% and 6%, far from the 3% average that was, in their view, being misrepresented to them. They recall that failing to account for 0.9% represents millions of colones that were not factored into the calculations, projections, and recommendations being challenged, which were incorporated into Article 224 of Ley 9544. They note that in the same IICE_6 study, in the section entitled Compendio Resumen #7ª, under what the study calls the "optimistic economic scenario," a real return of 4% is presented, and under that scenario a surplus of 043 billion is generated over a 100-year horizon; a situation that allows for less drastic projections than those reflected in Ley 9544—such as, for example, increasing the worker's contribution (aporte obrero) by only 1% rather than 2%, applying gender criteria so that women may access a retirement pension at a younger age than men, keeping the retirement age at 60 years even where 35 years of service had been completed but with the possibility of less heavily penalized early withdrawals than those established in Ley 9544, particularly in view of the possibility that the Administrative Board, upon obtaining prior technical studies, could modify those ranges as provided for in paragraph 3 of Article 239 of Ley 9455.
They add that in point 4.1 of IICE_6, concerning real returns, the Sovereign Yield Curve (Curva de Rendimiento Soberana) is established as a reference parameter, which, as of May 17, 2016, indicated that over a 10-year horizon that investment exceeds 8% in real terms, not 3%. They note that the Sovereign Yield Curve data as of May 23, 2018 indicated that over a 10-year horizon it would yield a real rate of return of 10%. They indicate that if the returns from 2010 to 2014 were excluded and returns from 2016, 2017, and 2018 up to the date of filing of the action were used, it would become evident that the conclusion reached in the final paragraph of point 4.3 of IICE_6 would change significantly, reaching even more than 5% in annual returns. They also note that the challenged regulations provide that positions created with lower salaries will result, upon retirement, in reduced income, as the pension must never exceed 10 times that new salary.
They add that, moreover, pensions and retirement pensions currently in payment must be readjusted to reflect the deduction (rebajo) under the "new" cap established, meaning that those beneficiaries would be subject to a greater deduction.
They argue that a solidarity contribution (aporte solidario) on the excess above the cap imposed at 50% should have been established in the Law, as IICE recommended, rather than the piecemeal approach taken in 236 bis. They further contend that, by failing to do so in that manner, the provision relating to the solidarity contribution is tainted with unconstitutionality, and one of the principal objectives behind the enactment of the law is thereby undermined. They add that they are not opposed to the remainder of the provisions contained in Ley 9544 and, in that regard, note that the caps imposed on future pensions, as well as the composition of the new Junta Administradora — both of which were aspects of utmost importance to the enactment of this law — would remain intact. They conclude by noting that the Junta Administradora will always retain the ability to modify the parameters that Articles 224 and 225 of Ley 7333 would once again establish, provided that the corresponding technical studies are conducted, as required by the third paragraph of Article 239 of Ley 9544. They reiterate their claims, requesting that, in view of the flagrant violations of constitutional law (Derecho de la Constitución), Articles 224, 224 bis, and 236 bis of Ley 9544 be declared unconstitutional.
87. On June 12, 2018, permanent Justices (Magistrados propietarios) Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado, together with alternate Justice (Magistrado suplente) José Paulino Hernández Gutiérrez and alternate Justice Marta Esquivel Rodríguez, filed recusals (inhibitorias), finding that they had a direct personal interest in the outcome of this constitutional challenge (acción de inconstitucionalidad) (in the same terms as they had done in the main case file (expediente) 18-007819-0007-CO).
88. In a ruling of the Presidency of the Sala Constitucional—Justice Araya García—issued at 8:55 a.m. on June 14, 2018, permanent Justices Cruz Castro, Castillo Víquez, Rueda Leal, Hernández López, and Salazar Alvarado, and alternate Justices Hernández Gutiérrez and Esquivel Rodríguez, were recused from hearing this matter, and it was directed that the relevant communication be sent to the Presidency of the Corte Suprema de Justicia so that their substitution be carried out pursuant to Article 6 of the Constitutional Jurisdiction Act (Ley de la Jurisdicción Constitucional).
89. By means of an official letter added to the electronic case file on June 19, 2018, the Presidency of the Corte Suprema de Justicia sent the result of draw (sorteo) #6195, conducted for the substitution of Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Luis Fernando Salazar Alvarado, Justice Nancy Hernández López, and alternate Justices José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez, who had recused themselves from hearing this constitutional challenge. The letter reported that the alternate Justices selected were: 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, alternate Justice Mauricio Chacón Jiménez; on the following June 21, alternate Justices Ana María Picado Brenes, Ileana Sánchez Navarro, and Lucila Monge Pizarro; and on the subsequent June 22, alternate Justice Alicia Salas Torres, each filed a recusal in this case file in the same terms as they had done in the main case 18-007819-0007-CO.
91. In a ruling issued at 8:25 a.m. on June 28, 2018, the Presidency of the Sala Constitucional—Justice Araya García—ordered that alternate Justice Mauricio Chacón Jiménez and alternate Justices Ana María Picado Brenes, Ileana Sánchez Navarro, Lucila Monge Pizarro, and Alicia Salas Torres be recused from this matter, and directed the relevant communication to the Presidency of the Corte Suprema de Justicia so that their substitution be carried out pursuant to Article 6 of the Constitutional Jurisdiction Act.
92. By means of an official letter added to the electronic case file on July 3, 2018, the Presidency of the Corte Suprema de Justicia sent the result of draw #6230, conducted for the substitution of alternate Justices Alicia Salas Torres, Lucila Monge Pizarro, Ileana Sánchez Navarro, Mauricio Chacón Jiménez, and Ana María Picado Brenes. The letter stated that because the Sala had originally requested 5 alternates and only 3 were available, the draw was conducted with those alternates who were available, resulting in the selection of Anamari Garro Vargas, Hubert Fernández Argüello, and Rónald Salazar Murillo.
93. Alternate Justices Hubert Fernández Argüello and Rónald Salazar Murillo—on July 4, 2018—and alternate Justice Anamari Garro Vargas—on the following July 9—filed recusals from hearing this constitutional challenge, in the same terms as they had done in the main case file 18-007819-0007-CO.
94. The Presidency of the Sala Constitucional, exercised by Justice Jorge Araya, in a ruling issued at 8:50 a.m. on July 10, 2018, recused alternate Justices Fernández and Salazar Murillo, as well as alternate Justice Garro Vargas, from hearing this proceeding, and ordered the case file sent to the Presidency of the Corte Suprema de Justicia for whatever action was appropriate.
95. By means of a ruling of the Presidency of the Sala Constitucional—Justice Jorge Araya García—issued at 9:40 a.m. on July 10, 2018, and based on the ruling issued by the President of the Sala Constitucional—Justice Castillo Víquez—at 2:40 p.m. on August 3, 2018, in the main case file number 18-007819-0007-CO, Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, and Luis Fernando Salazar Alvarado were declared eligible (habilitados) to hear this constitutional challenge, and continuation of the case file proceedings was ordered.
96. Justice Fernando Cruz Castro formally appeared before the Sala by way of a written submission filed on February 12, 2019, to state that in this case file and in all others consolidated with the main case number 18-007819-0007-CO, he and other Justices had filed a recusal request on the grounds that the legislation under challenge involves an amendment to the Judicial Branch Retirement and Pension Regime Act (Ley del Régimen de Jubilaciones y Pensiones del Poder Judicial). He argues that, although said recusal was initially accepted, all of the Justices were subsequently declared eligible based on the principle of non-waivability of jurisdictional competence (irrenunciabilidad de las competencias). He further argues that since August 2018 he has held the position of President of the Corte Suprema de Justicia, and therefore considers that he has a new ground for requesting recusal. He adds that in other proceedings before this Sala in which he has been named as a respondent or participating party in his capacity as President of the Corte Suprema de Justicia, he has requested recusal on the basis that it is improper for him to act as a judge in a matter in which he has been called as a party in that capacity; he considers that the case files referenced above present the same situation, since he cannot participate in the vote on those actions given that, as President of the Corte, he will be called upon to report on the merits because the legislation at issue is related to the Poder Judicial.
He argues that, for this reason, he is filing this recusal and requests that the record be referred to the Presidency of the Sala Constitucional for the appropriate resolution pursuant to Article 6 of the Constitutional Jurisdiction Act.
97. By means of a ruling issued at 1:15 p.m. on February 12, 2019, the President of the Sala Constitucional—Justice Fernando Castillo—relying on the ruling issued at 2:40 p.m. on August 3, 2018, in the main case file number 18-007819-0007-CO, recused Justice Fernando Cruz Castro from hearing this matter and declared alternate Justice Marta Eugenia Esquivel Rodríguez eligible to hear it, ordering continuation of the case file proceedings.
98. Regarding Constitutional Challenge No. 18-009275-0007-CO. In interlocutory ruling of the Full Court (Pleno) of the Sala number 2019-002486, issued at 10:03 a.m. on February 13, 2019, it was ordered that this constitutional challenge number 18-009275-0007-CO be consolidated with the case that remained as main case file number 18-007819-0007-CO, and that it be treated as an expansion of that case, given the evident connection between the claims raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved.
"Each Member for which this Part of the Convention is in force shall guarantee to the protected persons the granting of old-age benefits (prestaciones de vejez), in accordance with the following Articles of this Part." For its part, they argue that Convention 128 in its Article 14 provides:
"Each Member for which this Part of the Convention is in force shall guarantee to the protected persons the granting of old-age benefits, in accordance with the following Articles of this Part." They state that this obligation on the Costa Rican State also finds its basis in Articles 1, 2, and 26 of the American Convention on Human Rights (Convención Americana Sobre Derechos Humanos), as well as in Article 9 of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, "Protocolo de San Salvador"; all in relation to the provisions of Articles 7, 50, and 73 of the Constitution. They argue that the Sala has analyzed the subject of the fundamental right to retirement in Voto No. 1147-90 of 4:00 p.m. on September 21, 1990, which they consider a true milestone for a Social State of Law:
"(...) the Sala declares that there does exist a constitutional and fundamental right to retirement, in favor of every worker, in general; a right which, as such, belongs to and must be recognized for every human being, in conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution (...)" (emphasis in the original petition).
They indicate that the right to retirement not only constitutes a fundamental right provided for in the Constitution, but that, pursuant to the erga omnes principle applied to constitutional jurisprudence under Article 13 of the Ley de la Jurisdicción Constitucional, this right constitutes a Human Right, which carries greater implications insofar as, in strict adherence to the principle of progressivity in the recognition of human rights, from the moment the Sala Constitucional recognized the right to retirement as a Human Right, no ruling may be issued in opposition to that recognition, all without setting aside the supra-constitutional hierarchy of Human Rights. They add that the reasoning of the Sala Constitucional in Voto 1147-90, referred to above, is not limited to the recognition of the Human Right to the worker's retirement and that, in that regard, that ruling additionally stated:
"That conclusion (of the right to retirement as a Human Right) is confirmed by a series of international human rights principles and norms, which hold not only the higher rank than ordinary law conferred upon them by Article 7 of the Constitution, but also a direct constitutional protection that practically places them on a par with those expressly enshrined by the Constitution itself pursuant to Article 48 thereof, (as amended by Ley No. 7128 of August 18, 1989); among those rights, specifically those recognized in Articles 25, 28, 29 and 30—thus corrected as invoked in the action—of the Convention on Social Security, No. 102 of the ILO, which provide: 'Article 25 Each Member for which this Part of the Convention is in force shall guarantee to the protected persons the granting of old-age benefits, in accordance with the following Articles of this Part.' 'Article 28 The benefit shall consist of a periodical payment calculated as follows...' 'Article 29 1.
The benefit referred to in Article 28 shall be secured, in the contingency covered, at least: a) to the persons protected who have completed, prior to the contingency, in conformity with prescribed rules, a qualifying period which may consist of thirty years of contribution or employment, or twenty years of residence...'" They argue 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 its being an international instrument) but also as an article subject to direct constitutional protection (amparo constitucional), placing it on equal footing with a fundamental right recognized in our Magna Carta. They argue that, from this reasoning, the Constitutional Chamber directly indicates that a fundamental right can be derived from Articles 25, 28, 29, and 30 of ILO Convention 102; read together with Article 73 of the Political Constitution, from which — given its placement in the chapter on "social guarantees" of the Constitution and the aforementioned international instruments — its meaning and the Constituent Assembly's intention to enshrine it as a right of the worker are clearly discernible.
They summarize by stating that from the Constitutional and Supra-Constitutional norms indicated thus far, it follows that the State must ensure that every person, and in this specific case, workers — particularly those of the Judicial Branch — receive a fair pension or retirement benefit (jubilación), and that, indeed, ILO Conventions 102 and 128 contemplate scenarios in which a reduced or partial retirement benefit must be granted, but must nonetheless be granted. They state that both constitutional case law and ILO Conventions 102 and 128 establish the right to retirement as an inalienable and imprescriptible human right by virtue of the very nature of every human being; however, they contend that Articles 224 and 224 bis of Ley 9544 establish limitations that could even render that right to a dignified and fair retirement benefit nugatory. They state that Ley 9544 establishes in Articles 224, 224 bis, and 226, paragraph 1), that judicial employees 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 serve fewer than 20 years in the Judicial Branch — regardless of how many years they may have worked for other institutions or how old they are — cannot exercise their right to a fair and dignified pension (emphasis in the original writ of action).
"Article 28. The benefit shall consist of a periodical payment, calculated as follows:
(a) where protection is afforded to categories of employees or to categories of the economically active population, in accordance with the provisions of Article 65 or those of Article 66; (...)" "Article 29.
1. The benefit specified in Article 28 shall be secured at least:
(a) to protected persons who have completed, prior to the contingency, in conformity with prescribed rules, a qualifying period which may be thirty years of contribution or employment, or twenty years of residence; 2. Where the award of the benefit referred to in paragraph 1 is conditional on a minimum qualifying period of contribution or employment, a reduced benefit shall be secured at least:
(a) to protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period (período de calificación) of fifteen years of contributions (cotización) or employment; or (b) when, in principle, all economically active persons are covered, to protected persons who have completed a prescribed qualifying period of contributions and on whose behalf contributions have been paid, during the active period of their working life, amounting to at least half of the prescribed annual average of contributions referred to in subparagraph (b) of paragraph 1 of this article.
3. The provisions of paragraph 1 of this article shall be deemed to have been complied with when a benefit (prestación) calculated in accordance with Part XI is guaranteed—at a percentage ten units lower than that indicated in the schedule annexed to that Part for the standard beneficiary—to at least those persons who have completed, in accordance with prescribed rules, ten years of contributions or employment, or five years of residence.
4. A proportional reduction of the percentage indicated in the schedule annexed to Part XI may be made when the qualifying period corresponding to the benefit at the reduced percentage exceeds ten years of contributions or employment but is less than thirty years of contributions or employment. When such qualifying period exceeds fifteen years, a reduced pension (pensión) shall be granted in accordance with paragraph 2 of this article.
5. Where the award of the benefit referred to in paragraphs 1, 3, or 4 of this article is conditional upon completion of a minimum period of contributions or employment, a reduced benefit shall be guaranteed, under prescribed conditions, to protected persons who, solely by reason of the advanced age they had attained when the provisions enabling the application of this Part of the Convention entered into force, have been unable to satisfy the conditions prescribed pursuant to paragraph 2 of this article, unless, under the provisions of paragraphs 1, 3, or 4 of this article, a benefit is awarded to such persons at an age higher than the normal retirement age (emphases in the original brief).
The petitioners state that the content of Art. 18 of ILO Convention 128 is precisely to the same effect, and recall that ILO Conventions 102 and 128 establish that the qualifying period is to be understood as the contribution period. They add that, as can be seen, the act of "eliminating" or nullifying the fundamental right to a dignified retirement pension (jubilación) for persons with fewer than 20 years of service in the Poder Judicial—even if they have more than 35 years of public service, for example—and speaking not of a full retirement pension but a partial one in the case of having contributed 10 or 15 years to a given scheme (régimen), constitutes a violation of Human Rights; specifically, Ley 9544 in those cases provides that persons with fewer than 20 years of service in the Poder Judicial cannot access a retirement pension, nor can their survivors (supervivientes) access a pension, in contravention of the provisions of ILO Conventions 102 and 128 ratified by the country, which require that every worker receive a fair retirement pension, as well as the possibility that, with fewer contributions (15 or 10 years), a worker may receive a partial retirement pension.
They indicate that, to further illustrate this violation of International Conventions, the reference is to a contribution period of 10 or 15 years; however, they draw attention to the fact that this does not mean—nor can it be interpreted to mean—that those 10 or 15 years must be contributions to a specific scheme, but rather that any person who reaches age 65 and has contributed for at least ten years to the Régimen de Pensiones y Jubilaciones del Poder Judicial must be guaranteed an evidently reduced benefit (pension); however, from the wording of Articles 224 and 224 bis, this is not possible, and the petitioners consider that this situation once again constitutes—in their view—a flagrant violation of constitutional law.
They argue that the wording and interpretation of these ILO Conventions—Art. 29 of Convention 102 and Art. 18 of Convention 128—is not straightforward; nonetheless, they determine that a person who has completed 30 years of contributions or employment acquires the right to retire, that a person who has worked for 20 years in a given territory acquires the right to retire under the rules of that territory, and that if those 30 years are not reached but 15 or 10 years of contributions have been made, a reduced (early) retirement pension must be calculated. 12) They allege that, in light of the conventionality review (Control de Convencionalidad)—which is binding in the Costa Rican legal system—the provisions contained in Articles 224, 224 bis, and 226 of Ley 9544 are contrary to the International Human Rights System.
They indicate that they have come to realize that a person wishing to retire within the Poder Judicial would have to work well beyond 30 years: a person who begins working at age 18 could be required to work 47 years in order to receive a retirement pension without reductions for early retirement; even worse, if that person worked for another state institution from age 18 but joined the Poder Judicial at age 40, they will not be able to advance their retirement until they have served 20 years in the Poder Judicial—that is, after 44 years of total service—not to mention the problem for their family in the event that person dies before completing those 20 years of service in the Poder Judicial.
They consider that all of these situations nullify the Human Right to retirement and accordingly conclude that Ley 9544 violates Human Rights enshrined in International Instruments, given that ILO Convention 102 in Art. 26, paragraph 2, and ILO Convention 128 in Art. 15, paragraph 2, both state that the retirement age may not exceed 65 years, and in the examples cited, attaining a Poder Judicial retirement pension would require exceeding that age. This was established by Ley 9544 without a technical study—not an accounting-based study such as the IICE's questioned reports, but rather a sociological study that would definitively determine whether Criminal Court Judges, Family Court Judges, Agrarian Judges, Civil Judges, Administrative Litigation Judges, and judges across all subject-matter areas handled by the Poder Judicial, as well as Judicial Police officers, administrative staff, Prosecutors, Public Defenders, and others, are able to continue working without detriment to the service—and above all, to their physical and mental health—when their years of service required for retirement are extended.
They consider that this is not merely a matter of extending service by five years on the grounds of the pro fondo principle (Principio Pro Fondo), because under the reform introduced by Ley 9544, a person who joined the Poder Judicial at age 20 would now have to work 45 years in order to retire—far exceeding the 30 years of contributions stipulated by ILO Conventions 102 and 128—and this was done without a technical study conducted under the conditions described, which are not limited to purely accounting considerations, even though the latter have been given the greatest weight.
They note that the pro fondo principle—which is not a principle of constitutional rank but of statutory rank—cannot be allowed to override the international standards referred to, particularly in the evident absence of technical and scientific criteria to determine the maximum age at which a person can perform judicial functions within the Poder Judicial, which, it should be noted, encompasses a wide variety of situations and circumstances among those who work in that institution (Police officers, Prosecutors, Judges across various subject matters, Public Defenders, and Administrative staff), both from the standpoint of physical and mental health, and due to the risk that the drastic reduction of retirement and pension rights effected by Ley 9544 may dangerously expose personnel to the temptation of corruption. They further indicate that such a statutory principle cannot be allowed to override the Human Right to a fair retirement pension, following completion of a judicial career in whatever capacity, and for as long as one's strength allows, without detriment to health and with a dignified old age for those in the judicial sector.
They note that Articles 224, 224 bis, and 226 of Ley 9544 first establish that retiring requires at least 20 years of service in the Poder Judicial and, in addition, a total of 35 years of work in the public sector; consequently, any person who begins working at the Poder Judicial after the age of 46 would have to retire at more than 65 years of age, meaning that application of this requirement fails to comply with what is stipulated in ILO Conventions 102 in Art. 26 and 128 in Art. 15; but above all, it must be noted that no technical study exists to establish—from an accounting standpoint—that such a requirement is necessary, let alone to demonstrate that the population is physically and mentally capable of meeting it, even though those are aspects required under Art. 15 of ILO Convention 128, which states:
"The prescribed age shall not exceed sixty-five years; however, a higher age may be prescribed by the competent authority, having regard to appropriate demographic, economic, and social criteria, supported by statistical data.
3. If the prescribed age is sixty-five or older, that age shall be reduced, under prescribed conditions, for persons who have been engaged in work considered by national legislation to be arduous or unhealthy for the purposes of the old-age benefit" (emphases in the original brief).
These tactical circumstances justify different treatment" (emphasis in the petition). They contend that, under these circumstances, the same new retirement rules cannot equally be imposed on a person who is 10 years away from retirement as on a person who is just beginning work or who is 30 years away from retirement at the time a reform takes effect, and this holds true from every perspective and for a variety of reasons. In this regard, they highlight that the law repealed by Ley 9544 provided that, upon completing 30 years of service (which implies a total exceeding the 300 contributions required by the régimen IVM of the Caja Costarricense de Seguro Social), a person could apply for early retirement without regard to age, and on that basis had been working and planning their near-future life; however, with such a drastic change to the retirement system, that same person must now understand that the minimum retirement age — in order to receive the full retirement pension — will be 65, which means a shift from a regime under which one could retire after 30 years of service regardless of age to one under which the person must wait until age 65; for someone who begins working at age 20, this means having to work for 45 years of their life, and if they wish to retire earlier, they must absorb an extremely drastic reduction to an already significantly reduced retirement pension.
They indicate that, in the case of the Poder Judicial, if a Policía Judicial officer, a criminal-court judge (Juez Penal), a prosecutor (Fiscal), a pathologist, or a social worker — to cite just a few examples — used to retire at age 55 after 30 years of service, then requiring them to work an additional ten years must necessarily be supported by technical-scientific studies establishing that such an extension is feasible, given that positions such as those in the examples carry an enormous daily emotional burden that could be extremely negatively affected by having to work 10 more years. They consider the position of the Colombian Constitutional Court to be of interest with regard to this point, and specifically Sentencia número C-789 de 2002, in which it held: "the creation of a transitional regime constitutes a protective mechanism to ensure that the changes produced by a legislative transition do not unduly affect those who, although they have not yet acquired the right to a pension, by reason of not having met the requirements therefor, do have a legitimate expectation of acquiring that right" (emphasis in the petition).
Now, with respect to constitutional case law in Costa Rica and the provisions of Transitorio VI of Ley 9544, they state that the Sala, in Sentencia 1147-90 of 16:00 hours on September 21, 1990, acting as the supreme interpreter of the Constitution, held that the worker's right to a retirement pension, as a human right, is not unrestricted, but that the conditions and limitations that may be imposed must be necessary and technically justified:
"In truth, it is not overlooked that the right to retirement, like any other right, is subject to conditions and limitations; but such conditions and limitations apply only insofar as they are provided for by the norms that recognize and guarantee the right and are, moreover, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose" (emphasis in the petition).
They clarify that this action does not assert or argue that a retirement and pension system is immutable; on the contrary, the argument advanced in the action is aimed at supporting the possibility of modifications over time, but the point is that reforms that may harm the conditions under which a segment of contributors (cotizantes) has been making contributions in anticipation of retirement should not be enacted without taking into account the preservation of rights in the course of acquisition, since, clearly, for persons with 20 or more years of service, such legislation would run counter to principles such as legitimate trust (legítima confianza) and legal certainty (seguridad jurídica). They contend that, in the logical context of restrictions on the worker's right to a retirement pension, the Constitutional Court aptly held — in their view — that the right is acquired at the moment of entry into the regime, as follows:
"It has already been stated that the right to a retirement pension cannot be limited, conditioned, or suppressed in an unreasonable or disproportionate manner, whether by reason of circumstances arising before or after its acquisition, consolidation, recognition, or actual enjoyment. In this regard, it must be noted that this right ceases to be a mere expectation and is acquired from the moment of entry into the retirement regime (régimen jubilatorio), at least as a general right of membership in that regime (...)" (emphasis in the petition).
They emphasize that this Constitutional Court has recognized membership in a particular pension regime as a vested right, which generates adequate protection of the human right to a dignified retirement pension or pension; they therefore consider that there is no conflict (antinomia) between the principle of 'residence' governed by various ILO Conventions and the principle of 'membership' developed by the Sala Constitucional — a principle that is moreover beyond dispute, as those same ILO Conventions speak to the preservation of rights in the course of acquisition; the point here is to determine, by means of the appropriate technical-scientific studies, what the time period for such preservation of rights in the course of acquisition will be. They reiterate that the ILO Conventions speak of residence — understood as the period of time (20 years) during which a worker lives (and makes contributions) in a particular country (under a particular retirement regime) — and therefore consider that the Sala Constitucional's interpretation of the 'membership' criterion is correct; in that regard, they note that the cited ruling goes on to state:
"This is so because from the moment of entry into 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 the right to retirement or surround it with the special guarantees of the Fundamental Law, including the principle that prohibits giving the former retroactive effect to the detriment of any person, or of their vested rights or consolidated legal situations (situaciones jurídicas consolidadas)" (emphasis in the petition).
They indicate that it is clear that this Voto serves to identify — clearly — what is to be understood by the right of belonging (derecho de pertenencia) to a particular retirement scheme (régimen de jubilaciones) and not to another; however, mention must now be made of two Votos in which this Tribunal Constitucional rendered a correct interpretation of what was to be understood by the term "residence" as set forth in Articles 29 of Convenio 102 of the ILO (OIT) and 18 of Convenio 128, also of the ILO, namely the judgments numbered 6842-99 of 8:45 a.m. on September 3, 1999, and 673-2000 of 9:48 a.m. on January 21, 2000, in which, in summary, it was held that upon having belonged to a particular scheme for 20 years, one acquired the right to retire under the conditions established therein, even if those conditions were subsequently modified. 16) They argue that, extrapolating the foregoing to the situation of persons employed by the Poder Judicial, having completed 20 years of contributions to the scheme established in the Ley Orgánica del Poder Judicial — recently repealed by Ley 9544 — a right in the process of acquisition (derecho en vías de adquisición) to retire or receive a pension under the conditions established in the repealed scheme became consolidated.
They emphasize that an interesting analogous comparison can be drawn by applying the 20-year criterion for consolidating a legal situation: Ley 9544 provides in its Articles 224, 224 bis and 226 that in order to hold the subjective right (derecho subjetivo) to a pension, one must have served — contributed to the fund — for 20 years; in that regard, they consider this means nothing more and nothing less than what the Sala Constitucional stated in the Votos previously analyzed: that after 20 years of contributing under a retirement and pension scheme, the right of belonging previously developed by the Sala Constitucional is "automatically" consolidated. They consider that, following this line of reasoning, the same criterion should apply to persons who, at the time the new law was published, had 20 years or more of contributions to the repealed scheme and who have therefore consolidated the preservation of their rights in the process of acquisition; accordingly, those persons must retire when they meet the requirements of Ley 7333 under the parameters of that legislation.
They add that one must not fail to analyze the content of Voto 2091-00 of 8:30 a.m. on March 8, 2000, in which the Sala Constitucional modified the residence criterion, leaving it partially hollow, while clarifying that the criterion of the vested right (derecho adquirido) is maintained — or at least the possibility thereof 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 Voto 2018-5758 of 3:40 p.m. on April 12, 2018, as a strictly geographical or territorial concept, without eliminating the possibility that a legitimate expectation (expectativa legítima) — or even a vested right — may in fact become consolidated, as Ley 9544 ultimately recognizes in transitorio VI. They argue that, comparing these two positions, the second — that is, viewing the concept of "residence" as a purely geographical matter — seems very simple and hollow, especially when one takes into account that the discussion regarding the application or violation of a Human Right such as the one analyzed in this action demands a considerably deeper analysis.
They note that Articles 29 and 18 of Convenios 102 and 128 of the ILO must be taken into account, insofar as they provide that the benefit shall be guaranteed, in the covered contingency (contingencia), to at least those protected persons who, prior to the contingency, have completed, in accordance with prescribed rules, a qualifying period (período de calificación) which may consist of thirty years of contributions or employment, or twenty years of residence. They recall that, in both international instruments, when "residence" is mentioned, it must be understood as "habitual residence." They consider that, up to this point, there is no major disagreement with the content of Voto 2091-00 of the Sala Constitucional; however, the objection raised pertains to the strictly normative interpretation given to that term, which they consider contrary to the Pro Omine and Pro Libértate principles.
They note that when the cited Convenios speak of residence and this refers to the place where one lives, the provision must be read in context, as this Tribunal rightly did in its earlier rulings, since it is evidently intended to distinguish between the schemes under which a worker may have been employed throughout his or her active working life in different countries among those members that signed the Convenio — including Costa Rica — and thus, the fact that a person has worked or has had 20 years of working in Costa Rica does not mean that by that fact alone he or she acquires the retirement right based on that "requirement" of residence as a "geographical" datum (20 years of residence in the country); rather, what it means is that the 20-year residence provision creates a legitimate expectation, a right in the process of acquisition as the ILO indicates — indeed, a subjective right — and that, accordingly, one may, if the case arises, choose to retire under the rules of the territory where one worked for that number of years.
They argue that one example of the foregoing is a worker who worked 20 years in the Poder Judicial of Costa Rica and subsequently worked 10 years or more but fewer than 20 in another country, such that that person may choose to retire under the conditions established in the Poder Judicial of Costa Rica, where he or she resided (worked) for 20 years; now, if this person who worked 20 years in the Poder Judicial of Costa Rica ended the employment relationship here on February 1, 2018 (a date on which Ley 7333 was in force, not Ley 9544) and worked the remaining years in another country and decides to retire under the system for which he or she worked 20 years (the residence criterion) — does he or she retire under the regulation established in Ley 9544, which was not in force when he or she ceased working in Costa Rica? They consider that, legally, the answer must be negative, and that the person must retire under the conditions of the scheme to which he or she contributed for those 20 years.
They estimate that, accordingly, the term "residence" cannot be interpreted — in such a cold and uncritical manner — in isolation from its close relationship with the term "belonging" developed by the Tribunal Constitucional, since, they argue, it is to protect the latter that the former is applied.
They indicate that Article 29 of Convenio 10 of the ILO provides:
"1. The benefit referred to in Article 28 shall be guaranteed, in the covered contingency, to at least:
(a) protected persons who have completed, before the contingency, in accordance with prescribed rules, a qualifying period which may consist of thirty years of contributions or employment, or twenty years of residence" (emphasis in the original memorial).
They argue that, in the same vein, Article 18 of ILO Convention 128 must be read. They state that the first thing to be made clear is that, when referring to 30 years of contributions (cotización) or employment, the reference is to contributions made under different schemes during those 30 years without reaching 20 years under any one particular scheme; thus, even with that number of years, the required period of residence (residencia) under any scheme is not met, and therefore, in fulfillment of the obligation established in Article 25 of Convention 102 and Article 14 of Convention 128 of the ILO, the member State must guarantee the benefit (retirement pension (jubilación) or pension). 17) They indicate that it is now necessary to determine the meaning of "qualifying period (período de calificación)" which, pursuant to Article 1, subparagraph (f) of ILO Convention 102, means: "the expression qualifying period means a period of contribution, a period of employment, a period of residence, or any combination thereof, as may be prescribed"; in the same vein, they also cite Article 1 of ILO Convention 128.
They state that, accordingly, the referenced regulations must not be taken out of context by interpreting the term "residence" coldly and narrowly as merely the place where one lives, because under that argument and a purely normative interpretation, one would conclude that living in Costa Rica for 20 years would entitle a person to claim retirement, which in their view constitutes an incorrect interpretation; the qualifying period can therefore consist of 20 years of residence (geographic, yes, but understood as being covered by a particular retirement scheme), or equally of 30 years of contributions made under different schemes without reaching 20 years under any single one. They argue that, in summary, the period of residence is nothing other than a period of "MEMBERSHIP (PERTENENCIA)" in a particular scheme, by virtue of having contributed to it for a specified period of time, which is none other than the period of residence in the country and of contributions to a given scheme in that geographic area or zone governed by a specific law.
They indicate that, for the foregoing reasons, when Conventions 102 and 128 speak of residence, they refer to "membership" in a particular scheme in a particular country, such that, if that membership lasts for a period of 20 years, it creates a legitimate expectation or even an acquired subjective right (derecho subjetivo adquirido) to receive a pension under the rules established in that retirement system; hence, the initial interpretation given to that term by the Tribunal Constitucional is the correct one. They state that, to further substantiate the legal position they seek to defend, none of the ILO Conventions under analysis—102, 128, and 157—uses the term "membership" in concrete terms, and this is because the way in which a worker's right to opt into a particular scheme rather than another, according to their preference, is addressed by using the term "residence," which they consider may be equated with belonging to a specific scheme for a specified period of time (20 years) and, in that way, the subjective right to be covered by the conditions established in that scheme is created.
In other words, they argue that Articles 29 of Convention 102 and 17 of Convention 128, both of the ILO, must be understood to mean that, for purposes of retirement or pension where a worker has been employed under different schemes, the pension must be guaranteed under the rules of one specific scheme (residence), at least for protected persons who, prior to the contingency, have completed 20 years of residence, which clearly does not mean simply residing in a given geographic location, but rather having made contributions to the scheme in force in the place where one geographically works. They state that, in this manner, it is legally correct—given its positive effects for the individual (principles of pro omine and pro libertate)—to understand that having contributed to a particular system for 20 years or more confers the subjective right to retire or receive a pension under those rules, so much so that it is precisely the time frame contemplated—albeit for purposes adverse to the individual—in Articles 224, 224 bis, and 236 of Ley 9544; articles which they assert they challenge on the grounds that they render the right to retirement null and void before reaching those 20 years.
They state that, in that same vein, the General Survey of the Committee of Experts on the Application of Conventions and Recommendations, ILO Geneva, regarding old-age protection under social security, International Labour Conference, 76th Session 1989, specifically in paragraphs 105 and 127, states the following with respect to that interpretation of the term "residence":
"In this regard, it should be noted that the measures indicated in the aforementioned Article 30 must be adopted at the domestic level; consequently, these are not measures that are necessary at the international level to guarantee the maintenance of accruing rights in the event of a transfer of residence from one country to another (...) The question of the maintenance of accruing rights also arises when the insured person is subject to or dependent on several social security schemes during their working life (...). This involves the domestic coordination of different social security laws, each of which requires the completion of a qualifying period" (emphasis is that of the brief).
They add that, as is abundantly clear, the term "residence," according to the ILO itself, must not be taken out of context and analyzed coldly and exclusively as "place of residence" or from a "geographic" standpoint, since the maintenance of accruing rights refers to very particular situations, such as a change of residence or a change from one retirement scheme to another, especially in the case of countries where a plurality of systems exists, or as in the case under study when a reform is required and it must be determined who is affected by it and who falls within the transitional period in the maintenance of accruing rights. They note that the ILO, in referring to the maintenance of accruing rights, does not refer to the impossibility of retirement systems modifying their conditions going forward, but rather to the obligation to observe the indicated maintenance; accordingly, if a worker has contributed in a particular territory for 20 years and this entitles them to the right to retire under that scheme (maintenance of accruing rights), by the same reasoning a person who has worked in Costa Rica, contributing to the Poder Judicial's retirement and pension scheme for 20 years and who undergoes a reform, retains the right to retire under that scheme; obviously in both cases upon meeting the requirements specified under the scheme in which they have already contributed for 20 years.
They indicate that consideration must also be given to what the ILO stated at the International Labour Conference, 67th Session 1981, regarding the maintenance of the rights of migrant workers in the area of Social Security (Revision of Convention No. 148), ILO, Geneva, which on page 25 provides:
"The acquisition of the right to social security benefits is not subject to the same conditions under the different social security laws. Indeed, under some of them the right is acquired upon completion of, or progressively as, the qualifying periods in matters of insurance, employment, professional activity or residence are fulfilled. When those periods have been completed, the right is maintained until the date on which the contingency materializes, either for a specified period of time or without any time limit, sometimes on the condition that the person concerned completes new qualifying periods with a view to maintaining or recovering the right. On the other hand, under other laws, in the contingencies that justify the granting of benefits, the right depends exclusively on the claimant's residence in the territory of the country concerned, taking into account or not their nationality, but without any condition of a prior qualifying period, or subject to a very limited condition of residence" (emphasis is that of the brief).
They indicate that, although the ILO does not state so explicitly through its conventions, it follows from the texts just quoted—which have served as the basis for the cited regulations—that member States are indeed obligated to respect the maintenance of accruing rights, circumscribed to a very particular reality, namely the change of residence or of the particular scheme under which contributions have been made toward a retirement pension. 18) They add that, in keeping with what has been set out thus far, a constitutionally questionable aspect of Ley 9544 is the failure to observe an adequate and fair transitional arrangement (régimen de transición) for workers of the Poder Judicial who, while it is true that they had not yet acquired the right to retire because they lacked 30 years of service or 62 years of age (requirements under the now-repealed Ley 7333), cannot be placed in the position of a "mere expectation" for all groups of persons employed by the Poder Judicial.
They consider that Ley 9544 establishes an acquired right but, in an arbitrary manner, fixes the benefit period at 18 months, without relying on technical criteria to justify it. They indicate that what is not at issue is whether or not there is an "acquired right," or whether one is facing a "legitimate expectation," since the consolidated legal situation exists, as is properly understood from Transitorio VI of Ley 9544, which established a transitional arrangement. They recall that Article 34 of the Constitución Política establishes that no law may affect consolidated legal situations; therefore, for the Poder Judicial's workforce, it is essential to determine the technical and scientific criteria that served as the basis for setting that transitional period at 18 months rather than at 10 years (20 years of service). They argue that Article 30 of ILO Convention 128 establishes:
"National legislation shall, under prescribed conditions, provide for the maintenance of rights in course of acquisition in respect of contributory invalidity, old-age and survivors' benefits" (emphasis is that of the brief) They add that, with respect to what has been indicated, product IICE_6, under point 8 on final considerations — specifically point b) concerning the transitional provision (transitorio) — establishes that possibility at between two and five years (not 18 months); however, regarding the effects such a provision would have on solvency (whether those effects would be significant or not for its application), the conclusion expressly states:
"In order to properly assess the effect of an extension of this transitional provision, it would be necessary to carry out a full actuarial analysis." They hold that the foregoing indicates, beyond any doubt, that the subject of the transitional provision (transitorio) and its actuarial implications was never analyzed in order to determine, on a technical-scientific basis, whether it was or was not viable—from the standpoint of actuarial sustainability (sostenibilidad actuarial)—which was precisely the purpose for which the services of IICE were contracted, namely, that possibility of a 5- or 10-year transitional provision (i.e., 20 or 25 years of service rather than 28 years and 6 months), so as to affect the smallest possible number of workers of the Poder Judicial who held rights in the process of being acquired (derechos en vías de adquisición). They maintain that, for this reason, the Asamblea Legislativa, in an unfounded, arbitrary, and capricious manner, decided to create that vested right (derecho adquirido) or consolidated legal situation (situación consolidada) only for those persons who were one and a half years away from meeting any of the requirements of the repealed Ley 7333.
They add that one can even observe that said report IICE_6 ventures to "assume" matters that are entirely subjective, such as the claim that granting a transitional provision of 5 years or more would lead the parties to extend that transition period—without any technical or scientific basis—; it even states that the application of a transitional provision could end up "delaying" or postponing the adjustments, potentially "giving the impression" that those adjustments had not produced the desired results. They indicate that, therefore, in order to "avoid giving that impression," it is preferable not to conduct the study and to affect—without further justification—the consolidated legal situations of persons who have worked for the Poder Judicial for 20 years. They point out that reference must be made to what is stated in product IICE_6, under item 8 on final considerations, specifically with respect to item b) on the "transitional provision," where the possibility is set at between 2 and 5 years; however, given the effects these would have on solvency (whether they would be material or not for purposes of implementation), the conclusion stated that "in order to properly assess the effect of an extension of this transitional provision, a complete actuarial analysis would be necessary." In light of all the foregoing, they assert that no study exists that explains, on a technical and scientific basis, why 18 months and not 20 years was chosen as the length of the transitional period, with a view to affecting the smallest possible number of workers.
They consider it important to emphasize that the legislator does recognize a subjective vested right to retire under the repealed scheme, but sets the time frame for that right within an extremely short period, thereby harming a considerable group of persons who have built their participation in the system upon legitimate expectations that will now go unmet and, consequently, in their view, there exists an arbitrary abuse in imposing detrimental conditions without technical criteria, with the overriding aim of harming the working sector of the Poder Judicial.
They note that, on this subject, the ILO (OIT) has indicated that women's work must be addressed through specific measures, as provided for by the ILO Constitution, Convention No. 100 on Equal Remuneration, Convention No. 111 on Discrimination (Employment and Occupation), Convention No. 156 on Workers with Family Responsibilities, and Convention No. 183 on Maternity Protection. They add that, moreover, in the domain of international human rights law, there is also the Resolution Concerning the Promotion of Gender Equality, Pay Equity and Maternity Protection, the Resolution Concerning Gender Equality at the Heart of Decent Work, as well as—and no less importantly—other International Human Rights Instruments such as the United Nations Charter itself, the conclusions reached by the United Nations Economic and Social Council regarding the mainstreaming of a gender perspective, 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 identification of focal points for the protection of women's rights in the workplace.
They argue that, in Costa Rica, the Instituto Nacional de Estadística y Censo (INEC) has indicated that the effective rate of time devoted to domestic work in Costa Rica is 5 hours and 14 minutes per day for women compared to 1 hour and 22 minutes for men (according to INEC 2006-2011). They note that, for its part, the ILO (Informe 2016) has established that, worldwide, women invest 2.5 times more in domestic work than men, according to internal data on family and domestic work. They state that all of these arguments require the legislator, in cases where gender-based criteria—such as those of age or years of service established in Article 224 of Ley 9544—are not applied, to have technical-scientific support backing that decision. They argue that, in this case, none of the products contracted and delivered by the MCE (1 to 6) to the Poder Judicial provides a justification for why the special treatment required for female workers of the Poder Judicial is not given, as mandated by the aforementioned constitutional and international law.
They consider it necessary to note what is stated in official communication IICE-186-2017—challenged above—on page 3, item c, where it was expressly recorded: "The IICE team does not consider it necessary to establish additional distinctions on the basis of gender." They affirm that this is a remarkable argument for eliminating the inclusion of "gender" criteria from the law, but above all for bypassing the direct application of the "copied" [document], since the individual referenced attaches only a copy to his personal file, as can be inferred from that same communication.
Cordero Peña. They add that, in addition to failing to identify who participated, the fact remains that the communication is not countersigned or executed by any other person, so that even if those individuals had not been named, they would at least have signed or endorsed (backed) it; it therefore lacks the objective elements that would give the document sufficient weight to stand against Constitutional Law and the Principle of Conventionality Control (Principio del Control de Convencionalidad). They indicate that, for these reasons, even if one were to treat official communication IICE-186-2017 of August 18, 2017 as an extension of those IICE studies, or as a valid new study, the fact of the matter is that it is neither, and it does not constitute a scientific, technical, and objective basis for justifying the Poder Legislativo's failure—without possessing a genuine technical study—to apply the required gender criteria, among others.
They point out that, if, notwithstanding the foregoing, one wishes to grant some weight to that document, it still lacks the technical-scientific justification for excluding the mandatory gender-based criteria. By reason of what has been stated on this point regarding gender, they also consider Article 224 of Ley 9544 to be unconstitutional.
They conclude the petition (memorial) by requesting that, given the existence of flagrant violations of Constitutional Law, Articles 224, 224 bis, and 226 of Ley 9544, as well as Transitory Provision VI, all of Ley 9544, be declared unconstitutional, and that, where appropriate, the effects of the ruling be calibrated (se dimensione) accordingly, determining the preservation of the inchoate rights (derechos en vías de adquisición) of employees of the Poder Judicial, so that persons who, at the time of publication of Ley 9544, had completed 20 or more years of contributing to the retirement and pension system (régimen de jubilaciones y pensiones) of the Poder Judicial may retire or collect a pension under the parameters established by Ley 7333 of May 5, 1993, published in Supplement 24 of Gaceta N° 124 of July 1, 1993.
The plaintiffs allege that, with respect to Ley 9544, there are grounds of unconstitutionality both as to form and as to substance. With respect to form, A) first, they contend that the required consultations with autonomous institutions and state banks were omitted. On this point, they cite the provisions of Article 190 of the Constitution:
"ARTICLE 190.- For the deliberation and approval of bills relating to an autonomous institution, the Legislative Assembly shall first hear the opinion of that institution." They contend that, regarding the importance of the mandatory constitutional consultation obligation as it relates to autonomous institutions — such as the CCSS — the Court has held, in relevant part, as follows:
"(…) The simple mandatory consultation finally required under Article 190 (…) makes the consulted institution a kind of auxiliary body of the Assembly for the making of a decision that belongs exclusively to the Assembly (Article 121 of the Constitution). The consultation is not, however, a mere procedural formality devoid of meaning or substantive purpose, since its aim relates to the suitability or quality of the law in achieving the specific results sought by it. Accordingly, the consultation must be carried out at such a procedural stage that the Assembly has a genuine opportunity to hear the advisory opinion — that is, to attend to and consider it; in other words, what explains and justifies Article 190 is that the Assembly should genuinely have a sufficient opportunity, during the process, to become aware of and weigh the advisory opinion before reaching a decision. It is, furthermore, an opinion sought with respect to a specific bill, which is none other than the one submitted to legislative consideration through the exercise of legislative initiative (iniciativa).
The effect of the opinion may be the amendment of the bill, in which case (especially if this occurs during what is commonly called the 'committee stage' (trámite de Comisión)) it implies that the consultation does not necessarily concern the 'final bill'; on the contrary, in such a case the consultation would have led the legislative will to produce a text different from the one originally submitted.
4. Everything stated above refers, therefore, to the infringement committed by having exceeded, during the legislative procedure, the limits of the right of amendment (derecho de enmienda), materially altering the text of the bill in an essential manner. This violation is compounded, as noted, by an unavoidable transgression of the provisions of Article 190, since in the specific case the so-called 'final bill,' being materially different, was also not submitted for consultation. It must be made clear, however, that had this second infringement not occurred, this fact would have cured the defect that already invalidated the enactment of Ley No. 7013. For all the foregoing reasons, the normative provision that is the subject of this action must be declared unconstitutional and therefore absolutely null." (see ruling of the Constitutional Court number 1633-93 of 14 hours 33 minutes of April 13, 1993).
The plaintiffs argue that the law entitled "Reform of the Retirement and Pension Scheme of the Judiciary, contained in Ley N° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments," which became Ley N° 9544 of May 22, 2018, amended in its Article 1º Article 226 of the Ley Orgánica del Poder Judicial, which establishes functions and powers for CCSS departments in connection with the transfer of contributions from the IVM scheme — administered by this constitutional body — to augment the Judiciary's scheme. They add that, additionally, Article 234, as amended by Ley N° 9544, provides, in relevant part:
"Article 234- Persons who have worked for the Judiciary and who have left their positions without having obtained retirement pension or pension (jubilación o pensión) benefits shall not be entitled to a refund of the amount of the contributions they have made toward the formation of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones).
However, they shall be entitled to have the amount of the worker, employer, and state contributions (cuotas obreras, patronales y estatales) they have made toward the formation of the Fondo de Jubilaciones y Pensiones del Poder Judicial transferred by means of a customs liquidation (liquidación aduanal) to the CCSS, or to the institution administering the basic scheme under which their retirement pension or pension is to be granted. (...)" (emphasis in the original brief).
They state that, from both provisions, it is clearly concluded that there is a possibility for a State employee who has contributed to the IVM scheme of the CCSS to transfer the amount of their contributions from that general pension fund — protected by the Constitución Política in its Article 73 — to the Judiciary's scheme, with the CCSS thereby incurring the new obligation to remit the amount of those contributions (worker, employer, and state) by means of an actuarial transfer (liquidación actuarial), in favor of the Fondo del Poder Judicial. They add that, on the other hand, Articles 227 and 233 as amended by the aforementioned Article 1º of Ley N° 9455 also provide, in paragraph 1, in relevant part:
"Article 227- A judicial employee who becomes permanently unable to perform his or her position or job, as declared by the Disability Status Classification Board (Comisión Calificadora del Estado de Invalidez) of the CCSS or by the body that institution designates, and who has worked for the Judiciary for five years or more, shall be separated from his or her position with a permanent retirement pension. (...)" (emphasis in the original brief) "Article 233- Enjoyment of the benefit shall be suspended for the retired person for the duration of any period in which he or she is receiving any other salary from the State, its institutions, or municipalities.
This limitation shall not apply when the person is providing instruction at institutions of higher education.
When the benefit has been granted on grounds of disability and the person wishes to return to the labor market, he or she must request the relevant authorization and obtain approval from the Disability Status Classification Board or from the body that the CCSS designates, provided that the new activity is different from the one for which the person was declared disabled." (emphasis in the original brief).
They argue that, with this new regulation, powers were attributed to the "Disability Status Assessment Commission (Comisión Calificadora del Estado de Invalidez) of the Caja Costarricense del Seguro Social" without having consulted the CCSS regarding the appropriateness and timeliness thereof, and that the transfer of contributions from the General Pension Scheme (Régimen General de Pensiones) administered by the Caja Costarricense del Seguro Social, as provided by the Constitución Política, was authorized. They consider that the challenged law is null and void for being unconstitutional because they maintain that consultation with the CCSS was mandatory, in light of articles 73, 74, 188, 189, and 190 of the Constitución Política; however, during the legislative process, none of the substitute texts approved by the Special Commission (Comisión Especial)—on September 13, 2016, and March 29, 2017—were submitted to the CCSS for consultation, nor was the final substitute text approved on July 29, 2017, which was issued with an affirmative majority opinion published in the Official Gazette (Diario Oficial La Gaceta), Alcance N° 189 of August 4, 2017; thereby failing to comply with the mandatory consultation rule required by the aforementioned constitutional mandates, notwithstanding that those proposed regulations affected the constitutionally assigned powers of this constitutional body.
They state that the legislation approved within the legislature altered the organization and powers of the CCSS as an autonomous institution (institución autónoma), further noting that, with the amendment introduced by the challenged Law, the pension and retirement fund administered by the Caja Costarricense del Seguro Social could be directly and detrimentally affected. They argue that, for the same reasons, Transitorio II of Ley número 9544 is challenged as unconstitutional, which provides:
"TRANSITORIO II.— Officers of the Tribunal Supremo de Elecciones referred to in article 242 of Ley N.° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, who had made contributions to the Judicial Branch Pension and Retirement Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) prior to the entry into force of this law shall not have the present reform applied to their detriment, and their vested rights acquired in good faith shall be respected at all times. Nonetheless, they are authorized to request, under the terms set forth in articles 226 and 234 of this law, the refund of employee, state, and employer contributions made to the Judicial Branch Pension and Retirement Fund, so that they may transfer to the Pensions, Disability, Old Age, and Death Regime (Régimen de Pensiones, Invalidez, Vejez y Muerte), administered by the Caja Costarricense de Seguro Social (CCSS), if they so wish" (emphasis in the brief).
They argue that, once again, there is a direct and serious violation of articles 73, 74, 188, 189, and 190 of the Constitución Política, infringing upon the autonomy of the CCSS as the institution that oversees the Social Security Regime (Régimen de Seguridad Social) protected by the Constitution. They further state that Ley 9544 also contains an unconstitutionality due to the omission of the mandatory consultation with the State banks (bancos del Estado) and, in this regard, they argue that, starting from article 190 of the fundamental charter (Carta Fundamental), the same defect just analyzed is alleged, except that in this case the failure to consult concerned the State banks which, by constitutional mandate, are autonomous institutions. They note that, with the amendment to article 240 bis, introduced by Ley N° 9544 here challenged, the autonomy of the State banks was affected, given that this provision establishes in its second paragraph the following:
"(…) Said Board (Junta) is authorized to invest the resources of the Judicial Branch Pension and Retirement Fund in the following investment options:
They argue that this provision establishes serious limitations on the administrative autonomy (autonomía administrativa) that, constitutionally, the State banks exercise under the aegis of articles 188, 189, and 190 of the Constitution; it is worth noting that the new rules restrict their lending options by subjecting them to mandatory investment percentages that directly affect their autonomy. They add that it must be taken into consideration that decisions in this area are technical in nature and are protected by the banking autonomy regime (régimen de autonomía bancaria); yet none of the regulated matters, nor their legal, financial, accounting, or other implications, were submitted to the banking entities that make up the National Banking System (Sistema Bancario Nacional) for consultation; for which reason this omission renders the entirety of the law null and void for being unconstitutional, as it once again violates the mandate of article 190 of the Constitución Política.
They state that, based on the content and mandate of the Rules of the Legislative Assembly in force at the time of the legislative processing of what is today Ley número 9544, the following allegations of unconstitutionality are made, given that the deputies (diputados) failed to comply with their mandates: 1) violation of article 121, paragraph 22), of the Constitución Política and articles 35, 153, 205, 208, and 208 bis of the Rules of the Legislative Assembly because the procedure under article 208 bis was approved in the second part of the session. They recall that article 121, paragraph 22), of the Constitution protects the power of the Legislative Assembly (Asamblea Legislativa) to regulate its own internal regime and, in the exercise of this self-regulatory power, the Rules of the Legislative Assembly themselves, in their "TITLE VI" concerning "Amendments to the Rules," provide in article 207:
"ARTICLE 207. Amendments to the Rules.
Any total or partial amendment to these Rules, as well as the interpretation of any of its provisions, requires, in order to be approved, two-thirds of the votes of all members of the Assembly.
Amendments must be made through the procedure established in article 124 of the Constitución Política." They recall that the violation or non-compliance with the legislative rules causes the nullity—on grounds of unconstitutionality—of the law, given that such rules constitute a parameter of constitutionality in the terms established in article 73 of the Ley de la Jurisdicción Constitucional, which literally provides:
"Article 73. An action of unconstitutionality (acción de inconstitucionalidad) shall lie:
(...)
They argue that, in the specific case, the alleged unconstitutionality occurred because article 207 of the Legislative Rules was directly violated, and that this defect renders Ley N° 9544 null and void; this is because in ordinary plenary session (sesión plenaria ordinaria) N° 37 of June 30, 2016, a point of order (moción de orden)—via article 208 bis—was considered with the intention of creating a special procedure for the processing of case file (expediente) 19.922, entitled: "Ley para racionalizar el gasto público"; such point of order was considered in the so-called "Segunda Parte de la Sesión" ("Second Part of the Session") of the Plenary. They add that, furthermore, it is not possible to approve a special procedure by means of a point of order. They consider that, to understand the foregoing, it must be recalled that article 207 provides:
"Processing of parliamentary resolutions Bills for the issuance of resolutions concerning the internal affairs of the Assembly, as well as draft resolutions to be adopted in the exercise of the powers enumerated in paragraphs 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23), and 24) of article 121 of the Constitución Política, must be submitted in writing, signed by the deputy or deputies who introduce or adopt them; or by the Minister of the relevant branch, when the bill originates with the Executive Branch (Poder Ejecutivo). Likewise, they must be read aloud by the Secretariat. The Assembly shall consider and resolve them without adhering to the procedures set forth in the preceding article (....)" (emphasis in the brief).
They report that the foregoing regulatory provision was interpreted by the Presidency of the Legislative Assembly through resolution number 4084, adopted at session number 24 of June 10, 1999, and published in La Gaceta N° 129 of July 5, 1999; on that occasion, a rigorous procedure was established for the amendment or modification of the Rules of the Legislative Assembly, not only to safeguard democratic principles, but also the principles of publicity, transparency, and parliamentary majorities and minorities, given that all deputies of the Legislative Assembly, without discrimination or limitation, have the opportunity to submit motions that may be heard, then voted upon, and even challenged (emphasis in the brief). They add that, in that regard, while article 208 establishes the principle of singular non-derogability (inderogabilidad singular) by providing that: "Except in cases where the Rules themselves expressly provide otherwise, motions aimed at their non-application to specific cases shall not be admissible"; in "article 208 bis, 'Special Procedures,'" the exception to the foregoing principle is regulated in the following terms:
"By means of a motion of order (moción de orden), approved by two-thirds of its votes, the Legislative Assembly may establish special procedures for processing amendments to its Regulations and bills whose approval requires an absolute majority (mayoría absoluta), excluding 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 threshold 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) (emphasis in the original brief).
They argue that amendments to the Reglamento Legislativo are carried out by means of "agreements" (acuerdos), and therefore the special procedure of Article 208 bis cannot be approved through motions of order because it constitutes an amendment to the Reglamento de la Asamblea Legislativa. In that regard, they recall that that regulatory body, in its Article 153, permits motions of order, "unless this Reglamento expressly prohibits it"; and that, pursuant to Article 35 of that reglamento, a strict order is established for the "agenda (orden del día)" of the Legislative Plenary (Plenario Legislativo), which reserves for the first part of the session, among other matters, the internal affairs (régimen interno) of the Legislative Assembly — or, what amounts to the same thing, the interna corporis of the Assembly — precisely in order to safeguard the constitutional rule of transparency and the protection of the legislators' own rights, such as the right to vote, to debate, to amend, and to participate democratically in a broad, public, and transparent manner; and the second part was reserved — exclusively — for the first and second readings of pending bills.
They state that, in this regard, it must be taken into account that, in the exercise of its direction powers granted under Article 27 of the same reglamento, in the Minutes of Plenary Session (Sesión Plenaria) No. 047 of July 29, 2004, the President of the Legislative Assembly issued a ruling — whose criterion was not appealed and is therefore currently in force — by which the Presidency instructed the Secretary of the Governing Board (Directorio) to arrange, under the chapter on internal affairs and following the amendments to the Reglamento, the motions by type, by category of motion: under item a) amendments to the Reglamento and under item b) motions of order, with the motions of order to include postponement motions (mociones de posposición) — of which it is noted there are none — followed by motions of order pursuant to Article 153, then extensions of special committees (prórrogas de comisiones especiales), and finally, motions to waive procedural requirements (mociones de dispensa de trámites), so that each of the representatives (diputados and diputadas) would know where the various motions of order would be placed within the chapter on internal affairs, indicating that from that moment on, the Secretary of the Governing Board would have clear instructions for structuring the agenda in the manner it appeared at that point on the agenda.
They state that, in the case under review, in order to properly understand what occurred, one may consult the agenda of the Legislative Plenary for Ordinary Session (Sesión Ordinaria) No. 37 of June 30, 2016, to allow the representatives themselves to see how the parliamentary agenda was distributed, and it was noted with surprise that the motion of order was presented but was not even processed — under the principle of formal parallelism (principio de paralelismo de las formas) — within the chapter on internal affairs, since with respect to expediente 19.922, the Reglamento Legislativo was being tacitly repealed, causing serious harm to the affected sectors as legislation was enacted behind the backs of the Costa Rican people, transgressing the most fundamental democratic principles that have characterized it. They argue that the consideration and processing of the Article 208 bis motion under the Reglamento de la Asamblea Legislativa in connection with expediente No. 19.922 should have been taken up during the "First Part of the Session," in order to safeguard the constitutional rule of transparency and the protection of legislators' rights — such as the right to vote, to debate, and to participate democratically in a broad, public, and transparent manner.
On the contrary, they argue that having done so during the "Second Part of the Session" transgresses Article 121, paragraph 22) of the Constitution, insofar as Article 207 of the Reglamento Legislativo was directly violated. They contend that the Presidency of the Legislative Assembly, acting in concert with the legislative caucus leaders (Jefes de Fracción) who proposed the motions of order, did not comply with the Reglamento Legislativo — all in order to approve the Article 208 bis motions processed on that occasion — nor with the provisions of the Ley de la Jurisdicción Constitucional, which in its Article 73, paragraph c) conditions the constitutional legitimacy of laws and legislative agreements (acuerdos legislativos) upon substantial compliance with what is provided "... in the Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa." They emphasize that, in this case, what was violated was the "legislative procedure" by reason of the principle of formal parallelism, since, by means of an Article 208 bis motion applied to bill 19.922, the internal procedure and regulations established by the legislators themselves were flagrantly violated — precisely in order to safeguard the democratic principles of respect for minorities, transparency, and public accountability — with regard to the processing of the legislative agreement that entails the approval of said special procedure.
They state that, on the basis of the foregoing, a procedural defect is alleged that gives rise to the absolute nullity (nulidad absoluta) of all actions taken, for infringing upon the democratic principles of transparency, participation, formal parallelism, legal certainty (seguridad jurídica), and legitimate expectation (confianza legítima), which must be respected without any violation on the part of the Legislative Assembly; and that, in this specific case, the actions of the legislators did not comply with Articles 35, 205, and 207 of the Reglamento Legislativo, nor with the Presidency's current interpretation, thereby violating the democratic principles of transparency, participation, and respect for legislative majorities and minorities (Article 121, paragraph 22 of the Constitution). They add that, for these reasons, they request that Ley número 9544 be declared unconstitutional on the grounds that it was approved through a flawed legislative procedure, in direct and consistent contravention of the Reglamento de la Asamblea Legislativa as set forth above, and they consider that the null approval of the procedure prescribed by Article 208 bis allowed a law to come into legal existence that created an unequal, disproportionate, and confiscatory retirement system (régimen jubilatorio) that renders the right to retirement illusory — a right which, in their view, does not even meet the minimum standard established by the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense de Seguro Social.
They note that this reflects the intent of the legislature when it approved Article 208 bis of the Reglamento de la Asamblea Legislativa; it is worth noting that the Special Committee (Comisión Especial) that considered the substantive motions (mociones de fondo) submitted in connection with the bill "Addition of an Article 208 bis to the Reglamento de la Asamblea Legislativa, expediente legislativo No. 15.751" issued a unanimous affirmative opinion (dictamen), setting out the reasons considered in support of the proposal submitted to the Plenary, which clearly and unequivocally addressed the question of the voting majority as a determining element for the application of the special legislative procedure — by means of an Article 208 bis motion — by providing the following clear and explicit language:
"For these reasons, it is considered appropriate to incorporate a new Article 208 bis into the Reglamento de la Asamblea Legislativa, with the aim of ensuring that in those cases where the will of the majority of legislators converges, it is that majority decision that sets the parameters to be followed in each instance, expressly excluding from this procedure those bills whose approval requires 38 votes, as well as those relating 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 original brief.)
They add that, on the basis of the foregoing discussions, the Legislative Assembly approved Agreement No. 6231-04-05 on March 8, 2005, the final and currently in-force text of which provides:
"SOLE ARTICLE: — Add an Article 208 bis to the Reglamento de la Asamblea Legislativa, which shall read as follows:
Article 208 bis. — Special Procedures 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 Regulations and bills whose approval requires an absolute majority, excluding 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 threshold required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment." (Emphasis in the original brief.)
They argue that the unconstitutionality alleged in connection with Law No. 9544 arises because Article 208 bis of the Rules of the Legislative Assembly (Reglamento de la Asamblea) — a provision designed exclusively for matters in which the required vote is a simple majority (mayoría simple) (half plus one of the legislators present) — was applied without recognizing that, in this matter, a qualified majority (mayoría calificada) (a minimum of 38 votes in favor out of the total elected legislators) was required, given that Corte Plena had expressed a negative opinion on the substitute texts (textos sustitutivos) adopted by the Special Committee (Comisión Especial). They recall that, pursuant to the mandate of Article 167 of the Constitución Política, in order to depart from Corte Plena's opinion, the legislators were required to vote on this matter by a qualified majority of 38 votes.
They note that, through official communication SP-118-17 of April 26, 2017, the Special Committee designated for the analysis and processing of legislative file No. 19.922 was informed of the agreement adopted by Corte Plena in Article XXIX of ordinary session No. 8-17 of April 24, 2017, in which Corte Plena expressed its negative opinion, at that time, regarding the second substitute text adopted by said Committee in ordinary session No. 15 of March 29, 2017. They further argue that, through official communication SP-253-17 of August 10, 2017, Corte Plena communicated to the Legislative Directorate (Directorio Legislativo) the negative opinion adopted in Article XXX of ordinary session No. 26-17, held on August 7, 2017, on that occasion regarding the third substitute text approved and issued as a committee report (dictamen) by the Special Committee in session No. 23 of July 27, 2017.
They indicate that, in both opinions issued by the 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 Corte Plena declared itself opposed to those bills. In addition to the foregoing, they argue that Article 239 of Law No. 9544 — the law under challenge — modified the internal structure of the Judicial Branch insofar as it creates the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial as a body of the Judicial Branch, which will have full functional, technical, and administrative independence to exercise the powers and authority granted to it by law.
They note that, pursuant to the content of that article, the Junta Administrativa is embedded in the Judicial Branch as a body "subordinate" to Corte Plena, but the law also endows it with sufficient legal personhood (personalidad jurídica) to administer the fund, which authorizes it to act on behalf of the Judicial Branch with respect to the operations of this Branch's Retirement and Pension Fund. They indicate that this function, prior to the reform, was held by the Consejo Superior under the terms of Article 81, subsection 12) of the Ley Orgánica del Poder Judicial, but without the benefit of this instrumental legal standing (personería jurídica instrumental).
They consider that this modification does affect the jurisdiction and organization of the Judicial Branch because it creates an internal subordinate body and because the Junta Administrativa was granted autonomous instrumental legal standing vis-à-vis Corte Plena, which removes it from the actions proper to the chief hierarchical authority — in this case, Corte Plena — in the terms set forth in Articles 102 and 83 of the Ley General de la Administración Pública, to such an extent that it is endowed with judicial and extrajudicial representation to act on behalf of this Judicial Branch — a legal phenomenon that had not occurred until this point.
They indicate that, in addition to the error in applying a special legislative procedure under Article 208 bis of the Reglamento de la Asamblea to a matter that exceeds the scope of that provision — since a qualified majority rather than a simple majority was required — the vote cast in the Legislative Plenary (Plenario Legislativo) on this matter was reviewed and it was verified that bill 19.922 was voted on by a simple majority in both votes: in the first debate held during extraordinary session No. 14 on October 30, 2017, the Plenary approved the affirmative committee report issued by the Special Committee with 31 votes in favor and 7 against; and in the second debate held during ordinary session No. 163 on April 19, 2018, it was approved with 34 votes in favor and 9 against — all of the foregoing despite the fact that a vote of 38 votes in favor was required for the vote to be constitutionally valid.
They state that Article 167 of the Constitution provided for a prior and, in some sense, binding consultation with the Corte Suprema de Justicia regarding "the discussion and approval of bills relating to the organization or functioning of the Judicial Branch"; an opinion that legislators may disregard only by a qualified majority, that is, two-thirds of the total legislators, namely, a minimum of 38 votes. They argue that, in this regard, they have no doubt that the Sala Constitucional has understood that consultation with the Judicial Branch is required under the terms of Article 167 of the Constitución Política whenever its administrative organization — and not only matters concerning the jurisdictional function — is being reformed. They consider it pertinent to reference the considerations expressed by the Sala Constitucional, in its understanding that:
"... that a bill concerns such matters when its articles contain explicit provisions ordering the creation, substantial modification, or elimination of strictly jurisdictional or administrative bodies attached to the Judicial Branch, or when it creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions..." (Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008) (emphasis in the original memorial).
They warn that the constitutional requirement established in Article 167 of the Constitution — the qualified majority vote needed to depart from the negative opinion expressed by Corte Plena in its final committee report — was not met, and they contend that this violated that provision as well as the rule set forth in Article 208 bis of the Reglamento de la Asamblea, since, in their view, a qualified majority was required to disregard Corte Plena's opinion, which in their opinion constitutes an uncorrectable procedural defect (vicio) that renders the law unconstitutional and void. In addition to the foregoing, they indicate that the Legislative Plenary approved a text that had not been consulted, since the final text — which served as the basis for discussion in the plenary — was the third substitute text, approved and issued as a committee report by the Special Committee in ordinary session No. 23 of July 27, 2017, with respect to which the mandatory prior consultation with the Corte Suprema de Justicia following the majority affirmative committee report had not been conducted; accordingly, they submit that Law 9544 is unconstitutional on this ground as well.
They note that in session No. 037 of June 30, 2016, the Legislative Plenary received and approved the procedural motion (moción de orden) whereby, in application of Article 208 bis of the Reglamento de la Asamblea Legislativa, with a vote of 49 in favor and 1 against, a special or fast-track procedure (vía rápida) was approved for the processing, discussion, and committee review of the bill processed under file 19.922, entitled "Ley para Racionalizar el Gasto Público"; a Special Committee was also created and delegated this task.
They emphasize that Article 2, subsection h) of said agreement expressly established the obligation — for the said Committee — to publish any substitute text it approved in the course of deliberations, in the following terms:
"h.- If during the consideration of the file in committee proceedings a motion for a substitute text is approved, or when the committee agrees to changes that substantially modify the bill, the Chair of the Committee shall request that the Legislative Directorate agree to its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity, and consideration of the bill shall be suspended, also proceeding (sic) to conduct the corresponding consultations. If, after eight business days have elapsed, no response to the mandatory consultations referred to in this subsection h) has been received, it shall be understood that the consulted body has no objection to raise regarding the bill." (emphasis in the original memorial).
They add that on September 5, 2016, the Special Committee of "legislative file 20.035, Entrusted with reviewing and issuing a committee report on the bill: 'Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normas Conexas, Expediente No. 19.922'" was constituted. They argue that in the first session of this Special Committee, session No. 1 of September 13, 2016, by unanimous vote, the base text for discussion was replaced — now directed exclusively toward a comprehensive amendment of Title IX of the Ley Orgánica del Poder Judicial, No. 8 of November 29, 1937 and its amendments —; a text that was never published in La Gaceta, despite the fact that the text had been substantially modified, which is a fact readily apparent from a comparison of the original base document as defined by the Plenary and the one substituted by the Special Committee. They reiterate that this text was not published, as required by the procedural motion under Article 208 bis that governed its processing; this constitutes the first publication omission with respect to the first substitute text approved by the Special Committee.
They add that, subsequently, in ordinary session No. 15 of Wednesday, March 29, 2017, that Special Committee approved the second substitute text; on that occasion the proposal had been prepared by SUPEN, and — this second substitute text — was likewise not published in the terms required by subsection h) of Article 2 of the procedural motion under Article 208 bis of the Reglamento de la Asamblea Legislativa that established the rules for its processing. In this regard, they consider that the words of former legislator Piszk Feinzilber on this point are illustrative:
"First of all, don Jorge, I was not distracting you — I raised my hand, and I do not believe that is sufficient reason... of course it is.
Second, when there is a substitute text — and this must be made very clear — the relevant parties must be consulted again. I do not see what the problem is. I am not sure whether this will need to be published or not, but clearly, since we are all working in good faith here, it will need to be published and the interested sectors will need to be called upon again to express their views.
No one here is working under the table or anything of the sort. Thank you." (emphasis in the original memorial).
They maintain that, from the very words of Deputy Piszk Feinzilber, one may conclude that the first text was not published and, consequently, the provisions of motion 208 bis were not expressly applied, which they consider to be a violation of Article 121, paragraph 22) of the Constitution, as well as the constitutional principles of transparency (publicidad) and due process (debido proceso) that were required to be strictly observed. They add that, notwithstanding the legislator's warnings, this second substitute text (texto sustitutivo) was likewise not published—a second failure to publish with respect to the second substitute text approved by the Special Committee. They reiterate that, despite having been expressly ordered in the second instance, there is no evidence in the legislative file (expediente legislativo) that such publication was carried out; no evidence to that effect appears therein.
They further add that, finally, at ordinary session number 23 held on 27 July 2017, the Special Committee approved procedural motion (moción de orden) number 1-23 to waive the reading of the substitute text submitted; it then approved procedural motion number 2-23, consisting of approval of the substitute text, which was immediately reported out favorably by a vote of 8 in favor and 1 against. They note that, once again, publication of this third substitute text approved—and in this instance also reported out—by the Committee was omitted, and that it must be borne in mind that what was published were the committee reports (dictámenes) of the Reporting Committee, not the substitute text itself, thereby again violating the provisions of the Political Constitution and the Legislative Rules of Procedure (Reglamento Legislativo) regarding the procedure that legislative file 19.922 was required to follow.
They draw attention to the fact that what was published in Supplement (Alcance) N° 189 of 4 August 2017 was the Affirmative Majority Committee Report (Dictamen Afirmativo de Mayoría), approved on 27 July 2017, and that the Minority Report (Dictamen de Minoría) was published in Supplement Nº 190 of 7 August 2017. They again note that none of the substitute texts approved by the Special Committee was published as expressly required by the special procedure established through motion 208 bis—not even the third, which was reported out without the consultations that the Constitution mandates in Articles 167 and 190, which they consider to constitute a violation of the principle of transparency governing legislative proceedings and necessary to inform the entire population about the bill under discussion, as an expression of the principle of legal certainty (seguridad jurídica). They consider that the defect could not be remedied by publishing the substitute text after it was approved on first reading (primer debate), because the publication requirement must allow all Costa Ricans to learn about the bill and to express their views and opinions, as is their constitutional right protected by Article 124 of the Constitution and Article 208 bis of the Rules of Procedure of the Asamblea Legislativa (Reglamento de la Asamblea Legislativa), in relation to Article 73 c) of the Law on Constitutional Jurisdiction. They argue that, in relation to this point, in judgment number 2012-004621 of 4:00 p.m. on 10 April 2012, the Constitutional Chamber (Sala Constitucional) stated:
"VII- This Constitutional Tribunal notes that when the Asamblea Legislativa, by means of a procedural motion under Article 208 bis of the Rules of Procedure, creates a special procedure, compliance with and observance of that procedure must be absolutely rigorous and strict. The special procedure created through Article 208 bis, as such, is an exception to the rules governing ordinary legislative procedures, one consented to by a qualified majority, but, as such, it will always remain an exception. The duty of the various legislative bodies to adhere, zealously and scrupulously, to the previously designed special procedure forestalls any violation of the principles of legal certainty (emphasized by this Tribunal in Voto No. 398-2005 of 12:10 hrs. of 21 January 2005) and democracy. Consequently, in the face of a special and expedited legislative procedure, the time limits, stages, and requirements previously established must be subject to a restrictive and rigorous interpretation, given that the margin of flexibility admissible vis-à-vis ordinary procedures—through expansive interpretations—is notably diminished in order to prevent an exception to the exception and, in general, any departure from the path (iter) exceptionally created by a supermajority.
VIIL- ESSENTIAL PROCEDURAL DEFECT OF AN EVIDENT AND MANIFEST NATURE RESULTING FROM THE FAILURE TO PUBLISH A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMITTEE THAT, TAKEN TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. On the other hand, the consulting legislators state that, notwithstanding the provisions of section l.2.h. of the special legislative procedure, throughout its processing the publication of a series of changes made to the bill was omitted—changes that reduced the total expected amount of the school-year bonus (salario escolar) that is exempt from income tax (impuesto de la renta), covering both public and private sector workers.
Consequently, upon reading the content of the substantive motions approved in the special committee, this Constitutional Tribunal finds, unanimously, that there was an essential procedural defect of an evident and manifest nature that violated the principles of transparency and equality by virtue of the failure to publish those motions, given that, taken together, they caused a substantial modification of the original text" (emphasis in the memorial).
Accordingly, and applying the foregoing to the specific case at hand, the petitioners consider that Articles 121, paragraph 22) and 124 of the Political Constitution and Article 208 bis of the Rules of the Asamblea Legislativa were violated, rendering Ley número 9544 absolutely null and void in its entirety. In addition to their arguments of unconstitutionality on formal grounds, the petitioners raise other arguments supporting their position that Ley 9544 is unconstitutional on substantive grounds as well. They invoke violations of the principles of reasonableness (razonabilidad), proportionality (proporcionalidad), and equality (igualdad). They contend that the deductions approved by this law are entirely burdensome, unreasonable, and confiscatory, as well as prejudicial to the principle of equality for those serving in the Poder Judicial. First, they address the principles of reasonableness and proportionality.
They indicate that, in the case of judicial employees, under these reforms, at the time of retirement or pensioning, the benefits to be obtained are substantially inferior, and this is so because 62% of the Poder Judicial workforce will receive an income that is even lower than what they would have received had they contributed to the IVM, while the remaining employees, even if they may nominally receive a higher pension or retirement benefit under the Judiciary Scheme, will receive a proportionally lower benefit, a situation compounded by the extremely heavy and burdensome contributions imposed under this scheme compared with the IVM. They add that the reform introduced by Ley 9544 raised the retirement age to 65 years, with a minimum of 35 years of service and a gross retirement benefit equivalent to 82% of the last 240 monthly salaries received, and that with such modifications the intention was, in principle, to align the requirements of the Judiciary Retirement and Pension Scheme with those of the Disability, Old Age, and Death Insurance Scheme; however, in the former, contribution amounts are 4 times higher than in the latter, while the benefits are far lower. In this regard, they recall that Article 224 of Ley 9544 provides that:
"Judicial employees with twenty or more years of service in the Poder Judicial may avail themselves of an ordinary retirement benefit 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) as defined by the Instituto Nacional de Estadística y Censos (INEC), provided they have reached sixty-five years of age and have worked for at least thirty-five years" (emphasis in the memorial).
For their part, they cite Article 5 of the Regulations of the CCSS Disability, Old Age, and Death Insurance (Reglamento del Seguro de Invalidez, Vejez y Muerte de la CCSS), which provides:
"An insured person who reaches 65 years of age shall be entitled to an old-age pension, provided that person has contributed to this Insurance with at least 300 (three hundred) installments" (emphasis in the memorial).
Based on the foregoing, they argue that, with unmistakable clarity, a first difference between the two schemes can be observed, since, when comparing the eligibility requirements and number of contributions (cotizaciones), Poder Judicial workers are required to meet two conditions in order to access an ordinary retirement pension (jubilación ordinaria): a) reaching age 65 (the same requirement as under IVM) but, b) with a total of 420 contributions (35 years). They argue that, unlike persons who contribute to IVM, where only 300 contributions are required, Poder Judicial employees are required to contribute 40% more in order to access an ordinary retirement pension. They state that the constitutional challenge raised is based primarily on the actuarial technical report prepared by Mr. Esteban Bermúdez, who serves as actuary of the Fondo de Jubilaciones y Pensiones del Magisterio and who, at the request of the Asociación Costarricense de la Judicatura (ACOJUD), prepared a technical report that has been submitted to the Court.
They add that, with the reform introduced to the Régimen de Jubilaciones y Pensiones del Poder Judicial by Ley N° 9544, challenged herein, a disproportion arises and, consequently, an unequal and irrational treatment of persons contributing to that scheme (régimen) compared to those contributing to the Régimen de Invalidez, Vejez y Muerte. They argue that, as set out below, a comparative analysis of the benefits profile for both schemes leads to the conclusion that, for the vast majority of persons contributing to the Régimen del Poder Judicial, it is disproportionate and irrational to belong to a scheme in which, throughout their entire working lives, they make contributions far greater than those made by IVM contributors and, yet, upon the end of their working lives, receive far lower benefits — this being so because, under the reform introduced by Ley 9544, the retirement age was raised to 65 years of age, with a minimum of 35 years of service, and with a gross retirement benefit (monto bruto de jubilación) equivalent to 82% of the last 240 salaries received.
They indicate that the foregoing equalizes the requirements for obtaining the right to retire under both schemes; however, it carries the additional burden that the contribution amounts (montos de cotización) to the Fondo de Jubilaciones y Pensiones del Poder Judicial are four times higher than those to IVM, while the benefits are far lower. They add that, when comparing the eligibility requirements and number of contributions, Poder Judicial workers are required to meet two conditions in order to access an ordinary retirement pension: age 65, the same as under IVM, but with a total of 420 contributions (35 years), which represents a significant difference from persons contributing to IVM, where only 300 contributions are required; that is, Poder Judicial employees are required to contribute 40% more than IVM employees in order to access an ordinary retirement pension. They further add that, in order to calculate the monthly benefit (asignación mensual) under the Régimen de Jubilaciones y Pensiones del Poder Judicial, the average salary (salario promedio) of the last 20 years is taken into account (the same requirement as under IVM) and 82% is applied to that average, with the result being the gross retirement benefit amount, as established by Article 224 of Ley 9544 itself.
They indicate that, for its part, under IVM, the monthly benefit is calculated in accordance with Article 5 of the Reglamento del Seguro de Invalidez, Vejez y Muerte, read in conjunction with Articles 24 and 25 of that same regulation:
"Article 24: The amount of the disability, old-age, or death pension of an active worker comprises a basic benefit rate (cuantía básica) as a percentage of the salary or average income referred to in the preceding article, for the first 20 (twenty) years of contributions (240 — two hundred and forty — contribution installments paid) or such number as may be available in cases of disability or death, provided the requirements of Articles 6 and 18 of this Regulation are met.
In order to place the insured person at the level indicated in the following table, the real salary or average income of the last sixty months of contributions, or those available in cases of disability and death, updated for inflation, shall be used:
| Real salary or average income | Basic benefit rate |
|---|---|
| Less than two minimum wages | 52.5% |
| From two to less than three minimum wages | 51.0% |
| From three to less than four minimum wages | 49.4% |
| From four to less than five minimum wages | 47.8% |
| From five to less than six minimum wages | 46.2% |
| From six to less than eight minimum wages | 44.6% |
| Eight or more minimum wages | 43.0% |
In both old-age and disability cases, an additional benefit amount (cuantía adicional) equivalent to 0.0833% of the reference salary or average income per month of contributions in excess of the first 240 months is included." (emphasis in the original pleading).
Now, they add that, unlike the system chosen under Ley número 9544, the IVM scheme provides a benefit for deferral of pension or retirement under the terms of Article 25 of the Regulation, which represents an additional percentage in the pension amount, as set out below:
"Article 25. The insured person who meets the requirements to be entitled to an old-age pension (pensión por vejez) shall be entitled to an additional pension for deferral of retirement, from the date on which the legal and regulatory requirements have been met. This additional pension shall consist of 0.1333% per month of the average salary calculated pursuant to Article 23.
The amount of the additional pension for deferral of retirement, added to the amount of the ordinary pension calculated pursuant to Article 24 of this Regulation, may not exceed 125% of the salary or average income indicated therein." They indicate that, when comparing both methods of calculating the monthly amount assigned under each of the schemes analyzed, the conclusion is that under the Poder Judicial scheme, the average of the last 240 contributions is taken into account and 82% is then applied to determine the gross retirement benefit; whereas under IVM, a basic benefit rate ranging between 43% and 52.5% is considered and, to this percentage, 0.0833% per month of contributions beyond the 240th contribution is added — the latter serving as a seniority bonus (bonificación por antigüedad) for having contributed beyond the 240 installments required as the minimum — in addition to a further amount for deferral, in the case of a woman if she reached the retirement age at 63 years and 2 months, and in the case of a man at 63 years and 3 months.
They argue that, accordingly, if a Poder Judicial worker meets the age requirement (65 years) and the years-of-service requirement (35 years), that worker will be entitled to an ordinary retirement pension calculated by applying 82% to the average of the last 240 salaries; under the same conditions, if a person who contributed to IVM meets the age requirement (65 years) and has contributed for 35 years, that person will be entitled to an ordinary retirement pension calculated by applying to the average of the last 240 salaries a basic benefit rate ranging between 43% and 52.5%, plus 0.0833% for each additional month of contributions beyond 240, amounting to a 14.994% seniority bonus for having made 180 additional installments, plus 2.9326% in the case of a woman and 2.7993% in the case of a man as recognition for deferral. They indicate that, at first glance, it might appear that the 82% established by the reform for the Poder Judicial is higher than the amounts provided by IVM; however, all Poder Judicial retirees bear three costs that IVM retirees do not, and it is these costs that render the reform as applied disproportionate in comparison with IVM; these additional costs or deductions consist of: a) the contribution to the Junta Administradora de Pensiones (five per thousand of the pension) pursuant to the amended Article 239, which provides: "...It shall be financed by an administrative-cost levy consisting of a deduction of five per thousand from the salaries earned by judicial officers, as well as from the retirement pensions and pensions charged to the Fund..."; b) the contribution to the fund, once retired, of 13%, from which IVM pensioners are exempt.
In this regard, Article 236, paragraph 1) of Ley 9455 provides: "The Fondo de Jubilaciones y Pensiones del Poder Judicial shall have the following revenues: 1) An employee contribution of 13% of the salaries earned by judicial officers, as well as from the retirement pensions and pensions charged to the fund..."; c) the contribution to the Health Insurance scheme (Régimen de Salud) administered by CCSS (5%), which does not apply to IVM pensioners, since the IVM regulation in its Article 3 establishes that: "The cost of enrollment in the Health Insurance for IVM pensioners shall be borne in its entirety by the Fondo de Pensiones de Invalidez, Vejez y Muerte; the Board of Directors shall determine the applicable percentage based on actuarial recommendations." They state that, based on the foregoing, it can be inferred that from the 82% assigned to a Poder Judicial worker without the penalty provided under Article 224 bis, a deduction of 0.41% must be made (five per thousand of 82%), plus 10.66% (13% contribution) and 4.1% (5% contribution to the Seguro de Enfermedad y Maternidad), leaving the net amount (monto neto) at 66.83% at age 65 with 35 years of service, it also being noted that, for both schemes, income tax would likewise apply depending on the pension amount.
They indicate that, on the other hand, if an IVM worker retires with 35 years of service, the benefit amount increases for two reasons: the first is the seniority bonus (for contributions exceeding 240), which would amount to 14.994% (180 contributions above 240 multiplied by 0.0833%), and the second is the deferral bonus (bonificación por postergación), given that a woman would have reached the 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 deferred 22 months, and if a man, 21 months, which credits them under Article 25 of the Reglamento del IVM with 0.1333%, meaning that the benefit 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, the base benefit amount would range between 43% and 52.5% plus the seniority and deferral bonuses; that is, the benefit amount under equal retirement conditions for a woman retiring at age 65 with 35 years of service under IVM would be approximately between 60.9266% and 70.4266%, and in the case of a man it would range between 60.7933% and 70.2933%.
They state that the differences noted above can be verified comparatively in the following table, which takes into account the Régimen de Pensiones y Jubilaciones del Poder Judicial prior to the reform alleged herein to be unconstitutional, as well as after the reform, and compares it with the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social, which is a minimum-content social security scheme for workers in the terms indicated by the Sala Constitucional in its judgment No. 846-92 of 13:30 hours on March 27, 1992, allowing for the existence of other schemes in the country:
| With prior scheme (repealed pursuant to the 1993 reform) | With scheme under Ley 9544 (new law challenged herein) | With CCSS Scheme |
|---|---|---|
| Fund is funded by contributions: |
The fund is sustained by contributions:
The fund is sustained by contributions:
- Active employee (servidor activo), pension recipient (pensionado) and/or retiree (jubilado): from 9% to 15%, most recently set at 11% - Employer: as determined by the Corte - State: 1.24% No additional contribution because the fund was administered by the Consejo Superior - Active employee, pension recipient and/or retiree: 13% - Employer: 14.36% - State: 1.24% A contribution of 5 colones per 1,000 of salary to finance the operating costs of the Administrative Board (Junta de Administración) created to manage the Fund - Active employee only: 3% - Employer: 5.08% - State: 1.24% No additional contribution because the fund is administered by CCSS Conditions for retirement (jubilación):
Three different frameworks were presented:
Option A:
- 30 years of service - Pension for men and women at age 62 - 100% calculated on the best 24 most recent salaries, which, with the deductions imposed on pension recipients and retirees, becomes 84% (excluding income tax) Option B:
- At age 60 but without the required years of service: the calculation was performed using years of service divided by 30, a percentage applied to the best 24 most recent salaries; the 11% scheme contribution and 5% insurance deductions were applied to that amount, resulting in 66%, plus income tax.
Option C:
- With 30 years of service but without meeting the age requirement (60 years): the calculation was performed using the employee's age divided by 60, a percentage applied to the best 24 most recent salaries; from that amount, deductions of 11% for the scheme contribution and 5% for insurance were also applied, resulting in 66%, plus 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), which, with the deductions imposed on pension recipients and retirees, becomes 66.83% (excluding income tax) - Judicial employees (servidores judiciales) contribute 40% more than IVM of CCSS - No credit for seniority (antigüedad) or deferral (postergación) Conditions for retirement:
- Years of service - Age 65 - With 300 contribution payments (cuotas) - 82% of the average salary over 20 years of service (240 salaries with no additional social contribution), with a base benefit amount (cuantía básica) between 43% and 52.5% - Credit for seniority (seniority bonuses) and deferral is available, starting from the 240th contribution payment, up to a total of 420 contribution payments (35 years), translating to 0.0833% for each additional month contributed - Women: at 63 years and 2 months - Men: at 63 years and 2 months Cap (tope): regulates the minimum to be received - No pension may be less than one-third of the last salary of the employee as indicated in the State expenditure budget for the year in which the payment is made.
Cap: regulates the maximum to be received:
Up to 10 times the lowest salary in the Poder Judicial Cap:
¢1.548.189,00 Obligations of pension recipients and retirees:
- Contribution to the scheme: 11% (with the possibility of reaching 15%) - Payment of CCSS sickness insurance (5%) - Payment of income tax Obligations of pension recipients and retirees:
- Contribution to the scheme: 13% - Payment of CCSS sickness insurance (5%) - Payment of income tax - Solidarity contribution beyond the cap threshold: from 35% to 55% Pension recipients and retirees under the CCSS scheme:
- No contribution to the scheme - No sickness insurance payment - No income tax payment Proportional pension (pensión proporcional):
- Minimum of 10 years of service to the institution, for a set term: equal to half the time served Proportional pension:
Option A:
- If 35 years of service are completed but age 65 has not been reached, a minimum age is set: men at 62 and women at 60 - The pension to be received by women ranges between 61.68% and 65.79% depending on age; from that amount, contributions to the scheme, insurance, administration cost financing, and income tax must be deducted - The pension to be received by men ranges between 63.74% and 65.79% depending on age; from that amount, contributions to the scheme, insurance, administration cost financing, and income tax must be deducted Option B:
- At age 65 but without 35 years of service to the institution, with a minimum of 20 years of service to the institution - Does not allow transfer of the scheme from Poder Judicial to IVM of CCSS - Does allow scheme transfer, but only at the time of retirement, and the excess amount is transferred to the ROP Proportional pension:
No credit for seniority No credit for seniority Credit for seniority is available They indicate that the regulations governing the new Retirement and Pension Scheme of the Poder Judicial (Régimen de Jubilaciones y Pensiones del Poder Judicial, RJPPJ) and the preceding table demonstrate the following: A) that under the former system, judicial employees did not receive 100% of their salary, as has been falsely disseminated to the public. They indicate that the calculation resulting from the average of base salaries, just as now, was subject to significant deductions in application of the solidarity principle: the 11% contribution to the scheme, the 5% for sickness insurance, not to mention the corresponding income tax payment. They argue that this scenario only arose if the employee met the age requirement (62 years) and the years-of-service requirement for the institution (30 years), and that beyond those thresholds, the percentages were considerably reduced in the scenarios where only one of the requirements was met (age or years of service).
They argue that, with the Poder Judicial scheme applied under the conditions of 35 years of service and age 65, the individual would receive a net income of 66.83%, for which a contribution 40% higher than that of the IVM is imposed, even though the IVM represents a minimum-content guarantee of the right to retirement, under the terms indicated by the Supreme Constitutional Tribunal. They consider it more than evident that this calculation does not withstand the test of reasonableness or equality, when comparing the indicated burdens against the minimum scheme of the Caja Costarricense del Seguro Social, which, despite requiring a 3% employee contribution, provides a pension of between 43% and 52.5% of the average of the last 240 salaries, with the possibility of receiving deferral bonuses for each month that the pension and/or retirement is postponed, without any additional contribution to pay.
They estimate that the comparison of both schemes demonstrates at a glance how unreasonable and disproportionate the pension and retirement scheme imposed on judicial employees is, since according to the challenged Law, judicial employees contribute 40% more than workers affiliated with the IVM of the Caja Costarricense del Seguro Social; however, with all the contributions and deductions 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 Retirement and Pension Fund of the Poder Judicial.
Benefit Amount: Poder Judicial Scheme (RJPPJ) vs. CCSS Scheme (RIVM) 65 years of age with 35 years of service Pension Estimate
| RJPPJ | RIVM | |
|---|---|---|
| Base benefit amount | 82% | 43% to 52.5% |
| Less: Contribution to the Fund | 10.66% | None |
| Less: Administrative cost | 0.41% | None |
| Less: Health contribution | 4.1% | None |
| Plus: Seniority bonus | None | 14.994% |
| Plus: Deferral bonus | None | 2.9325% (women) / 2.7993% (men) |
| Total benefit amount | 66.83% | 60.9266% to 70.4266% (women) / 60.7933% to 70.2933% (men) |
They state that, in view of the foregoing, there are cases where the IVM pension would exceed that of the Retirement and Pension Scheme of the Poder Judicial, since the former would provide a higher net benefit amount, specifically in the case of those individuals with 5 or fewer minimum wages in the last 5 years of service which, at the time of filing this action and according to information from the CCSS website, amounts to ¢251.801,00; that is, based on article 24 of the IVM Regulations, these would be individuals with an average salary in the last 5 years below ¢1.259.005,00. They note that, since 20 years is such a long reference horizon for the pension amount, it truly reflects the salaries throughout a worker's working life, ensuring that the pension is commensurate with contributions; but once this methodology yields an average much lower than the most recent salaries—since normally throughout a person's working life they receive promotions or category upgrades or other employment and salary changes—it would be incorrect to reference the person's last salary without knowing their prior salary history.
They state that, despite this, what can be observed is that, currently and according to official data provided by the Human Resources Management Department of the Poder Judicial, approximately 62% of workers earn less than said salary—¢1.259.005,00—which suggests that a percentage of workers well above that figure would have retirement amounts lower than those provided by the IVM, if one takes into account that the reference amount would be the average of the last 240 salaries and not the current salary. They indicate that in the following comparative tables showing the gross and net monthly benefit amounts of both schemes, the reduction in net benefits granted to contributors under the Retirement and Pension Scheme of the Poder Judicial is clearly visible, even though they contribute 4 times more than those in the IVM scheme.
Table No. 1 Average Salary of ¢500.000 colones Age 65 and 35 years of service
| Scheme | Average of last 240 salaries | % | Gross benefit amount | Health and Maternity Insurance (5%) | Contributions and deductions to Pension Fund (13%) + 5 x 1000 | Income tax | Net benefit amount |
|---|---|---|---|---|---|---|---|
| Poder Judicial | ¢500.000 | 82% | ¢410.000 | ¢20.500 | ¢55.350 | ¢0 | ¢334.150 |
| IVM (women) | ¢500.000 | 70,4226% | ¢352.133 | ¢0 | ¢0 | ¢0 | ¢352.133 |
| IVM (men) | ¢500.000 | 70,2893% | ¢351.466 | ¢0 | ¢0 | ¢0 | ¢351.466 |
Difference:
| Women | Men | |
|---|---|---|
| -¢17.983 | -¢17.316 |
The percentage of RIVM is obtained as follows:
0. Woman: 52.5% (base benefit amount (cuantía básica)) + 14.99% (seniority bonus (bonificación por antigüedad)) + 2.9326% (deferral bonus (bonificación por postergación)) 1. Man: 52.5% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 2 Average Salary of ¢750.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit (asignación bruta) Sickness and Maternity (Enfermedad y Maternidad) (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax (Impuesto de Renta) Net benefit (asignación neta) Poder Judicial ¢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 calculated as follows:
0. Woman: 51% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 51% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 3 Average Salary of ¢1.000.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax Net benefit Poder Judicial ¢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 calculated as follows:
0. Woman: 49,4% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 49,4% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 4 Average Salary of ¢1.500.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax Net benefit Poder Judicial ¢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 calculated as follows:
0. Woman: 46,2% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 46,2% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 5 Average Salary of ¢2.000.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax Net benefit Poder Judicial ¢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 calculated as follows:
0. Woman: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 6 Average Salary of ¢3.000.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax Net benefit Poder Judicial ¢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 calculated as follows:
0. Woman: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) 2. With this average salary, the IVM scheme caps the pension at ¢1.548.189.00, which is adjusted every semester.
Table No. 7 Average Salary of ¢4.000.000 colones Age 65 and 35 Years of Service Scheme Average of the last 240 salaries % Gross benefit Sickness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income tax Net benefit Poder Judicial ¢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 calculated as follows:
0. Woman: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Man: 43% (base benefit amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) 2) With this average salary, the IVM scheme caps the pension at ¢1.548.189.00, which is adjusted every semester.
From the foregoing comparison, they draw the following conclusions: a) it is evident that, for those salaries whose monthly average over the last 20 years falls below ¢1.5 million colones, there is a substantial economic harm to Poder Judicial employees, since contributors (cotizantes) under this scheme must contribute, month after month, 4 times more than contributors to IVM, while the benefits granted under the Poder Judicial pension scheme (régimen) are far inferior to those of IVM; b) that the Poder Judicial scheme is in fact more burdensome than the IVM scheme; the former uses as its reference points persons who meet the requirements of age 65 and 35 years of service, but it cannot be overlooked that many officials in the institution begin working at a very young age, even as young as 18, so that if this situation were compared to the benefits that would be received under IVM, the differences would be even greater, and consequently the disadvantage of belonging to the Poder Judicial scheme would also be greater; nor can it be disregarded that this scheme does not include within its legal framework any seniority bonuses or deferral bonuses, as IVM does.
By way of example, they note that if a person joins Poder Judicial at age 18 and remains until age 65 (the date at which they may avail themselves of retirement (jubilación)), they will have contributed to the fund for a total of 47 years, yet would receive the same benefits as an official who begins working at age 30; in other words, their contributions would effectively subsidize persons who work for the institution for a shorter period of time and therefore contribute less to the fund. They consider it clear that the Poder Judicial Retirement Benefits and Pensions Scheme (Régimen de Jubilaciones y Pensiones del Poder Judicial) requires adjustments to ensure current and future benefit payments, to the point that it was the judicial community itself—represented by what was known as the "Frente Gremial"—that, several years ago, raised the importance of making such adjustments, which is why a balanced bill was proposed that would meet the requirements of all parties involved.
They further argue that, notwithstanding the foregoing, the challenged regulations went too far, not only in imposing restrictions designed to prevent the so-called luxury pensions (pensiones de lujo)—which were not eliminated—but also in establishing contribution rates that, compared to the basic IVM scheme, are detrimental to the vast majority of the judicial community; and that, once again, those most harmed are the employees with the lowest salaries, in contravention of the guiding principles that must underpin pension schemes, namely equality and solidarity. They argue that the foregoing tables reflect not only the disproportionality and lack of reasonableness between the two schemes (IVM and PJ), but also that the lowest-paid employees within the job classification scale (escalafón de puestos) of Poder Judicial are those most affected by the application of Ley 9544, since their contributions are higher than those required by IVM yet they receive fewer benefits; as a result, their contributions effectively subsidize the highest retirement benefits and pensions, as can be seen from Table 5, where it is observed that the benefit amounts granted by the Poder Judicial scheme would be higher than those granted by IVM only within those salary ranges (as an average of the last 240 monthly salaries)—which, incidentally, represent the minority of cases, since according to data provided by the Human Resources Department (Departamento de Gestión Humana) through official memorandum No. DGH-475-2018 dated June 13, 2018 (this document is being obtained), 71.40% of Poder Judicial employees currently earn a salary below 2 million colones, while 27.65% earn salaries ranging between 2 and 4 million colones, and only 0.84% of employees (Senior Management, Alta Gerencia) earn more than 4 million colones.
They further argue that it must also be taken into account that, even though 27.65% of Poder Judicial employees (professional positions (puestos profesionales), including Judges, Prosecutors, and Public Defenders) earn higher salaries in the range of 2 to 4 million colones, at the time of applying the average of the last 240 salaries that amount would be considerably reduced; a fact that shows that, within the salary range at which Poder Judicial scheme benefits exceed those granted by IVM, only the so-called "Puestos Gerenciales" (Managerial Positions) of Poder Judicial are found, amounting to fewer than 50 positions out of the more than 13,000 that make up the Poder Judicial payroll (planilla). They point out that, in this way, the reform enacted—which is alleged herein to be unconstitutional—was driven by the fact that 35 persons receive pensions between 4 and 8 million colones, but the situation of the remaining Poder Judicial officials must also be examined:
They argue that, even though a cap of ¢4 millones de colones was established on institutional pensions (pensiones) and a solidarity contribution (contribución solidaria) of between 35% and 55% was set, these measures apply exclusively to those serving as Magistrados and senior Administrative Management positions — such as the Court Secretary (Secretaria de la Corte), members of the Consejo Superior, and the Executive Director — who are guaranteed a minimum pension of ¢4 millones de colones but subject to a solidarity contribution of between 35% and 55% on the amount exceeding that sum. They warn that there are no protective provisions for lower-paid employees of the institution, and even fewer for those with the lowest incomes, since the legislature failed to recognize that the changes approved by the challenged Law do not affect those serving in those senior positions — because they are guaranteed a minimum pension at a high amount — but rather that, in reality, the law harms the general body and the majority of judicial employees (servidores judiciales), who represent 97% of the judicial workforce, and whose salaries and the amount of their pension and/or retirement pension (jubilación) are substantially and grossly reduced compared to the burdens imposed on them.
They indicate that, furthermore, article 224 bis of Ley 9544 establishes a penalty for those wishing to opt for early retirement (jubilación anticipada) in two respects: a) based on years of service and b) based on age: thus, having completed 35 years of service but not having reached age 65, with a minimum age of 60 for women and 62 for men, produces 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 pension (jubilación ordinaria) 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 pension." They argue that the 82% rate established for the pension in article 224 — applicable exclusively to cases where the employee meets both the age requirement (65 years of age) and the years-of-service requirement (35 years of service) — would be reduced as follows:
Early Retirement Pension Amount
| AGE | Women | Men |
|---|---|---|
| 60 | 75,69% | Not applicable |
| 61 | 76,95% | Not applicable |
| 62 | 78,21% | 78,21% |
| 63 | 79,47% | 79,47% |
| 64 | 80,73% | 80,73% |
They contend that these pensions carry the same deductions noted above — that is, their amount is reduced by 18.5%: owing to the 13% contribution (cotización) to the fund, the 5 per mil for the financing of the Administrative Board (Junta Administrativa), and the 5% health insurance contribution — as a result of which, in these cases, the net amount for age-based early retirement would be as follows:
Net Early Retirement Pension Amount (with reductions and contributions established by Law)
| AGE | Women | Men |
|---|---|---|
| 60 | 61,68% | Not applicable |
| 61 | 62,71% | Not applicable |
| 62 | 63,74% | 63,74% |
| 63 | 64,76% | 64,76% |
| 64 | 65,79% | 65,79% |
They indicate that it is important to note that these differences between the two schemes increase when the employee decides to defer retirement: for example, if a person begins working at age 18 and completes 35 years of service at age 53, they would be unable to retire under either scheme — neither the Poder Judicial scheme nor the CCSS IVM scheme — and if they are a Poder Judicial employee, a woman could retire at age 60 with 42 years of service, or a man at age 62 with 44 years of service. They argue that, given the years of service required for the Poder Judicial — which far exceed those established as the basic requirement for an ordinary pension — there would always be a penalty in the event of early retirement, so that the pension would amount to 61,68% net of the reference salary (salario de referencia) (75,69% gross) in the case of a woman, or 63,74% net (78,21%) in the case of a man.
They add that, under the IVM, a woman would receive a pension with a 22% bonus (bonificación) on top of the base amount, which would range between 43% and 52,5% — meaning that, depending on her salary, the pension would range from approximately 65% to 74,5% of the reference salary, likewise at age 60 — and that a man at age 62 would receive a pension ranging from approximately 67% to 76,5%. They state that the difference between the Poder Judicial scheme and the IVM increases even further if the employee decides to retire at age 65 because, under the Poder Judicial scheme, the full pension would amount to 66.83% net (82% gross), while under the IVM, due to the deferral (postergación), the pension would be 71,79% for the lower end of the range in the case of men, and 73% in the case of a woman. They indicate that the foregoing comparison reveals the inequality of treatment of the Poder Judicial workforce as a whole, given the evident overburden imposed on judicial employees relative to other civil servants who contribute to the CCSS IVM, in outright violation of the principle of equality, and they consider that article 33 of the Constitution is flagrantly violated because Poder Judicial employees will receive a lower pension than IVM-CCSS beneficiaries yet contribute 4 times more than the latter.
They consider that this inequality has no justification on grounds of public order. They insist that the manner in which the legislature designed and modified the Poder Judicial Retirement and Pension Scheme affects not only the salaries of judicial employees but also the amount of their pension and/or retirement pension, finding that there is a serious infringement of the aforementioned constitutional principles of reasonableness and progressiveness in the recognition of fundamental rights. They note that, in addition to the foregoing, the calculation of income tax on the pension and/or retirement pension was imposed on the gross amount — that is, without applying the deductions corresponding to the multiple charges levied on that amount (contributions to the pension and/or retirement scheme and to social security, as well as to the financing of the Administrative Board [Junta de Administración]) — and they reiterate that pensioners under other schemes do not bear those charges.
They argue that this further aggravates the situation, not only for active employees but also for retirees and/or pensioners of the Poder Judicial, the latter being in a vulnerable position due to their age and the fact that they are at a stage in life where it is very difficult to find another source of income to support themselves and their families. They warn that it must not be forgotten that, for the purpose of calculating income tax, the general rule is that it is calculated after applying the statutory deductions — that is, on net income, not gross income. They consider that the legislators approved a system that affected the entire staff of the institution (Poder Judicial), and that the disproportion in the pension and/or retirement calculation formula under the Poder Judicial Retirement and Pension Scheme is most evident in the lower-wage grades and positions. They state that, consequently, the approved scheme, as explained above, does not address the variables and principles governing social security matters, as is evidenced by the conclusions of the study conducted by actuarial consultant (actuario matemático) Esteban Bermúdez, in comparison with the obligations and benefits of the Poder Judicial Retirement and Pension Scheme relative to the Disability, Old Age, and Death Scheme administered by the Caja Costarricense del Seguro Social (IVM). They report that the conclusions reached in the study conducted by actuarial consultant Esteban Bermúdez are as follows:
Conclusion 1. The Poder Judicial pension calculation formula contains no seniority recognition mechanisms, such as seniority bonuses (bonificación) and deferral increments (postergación), which does not incentivize employees to work longer, thereby increasing the fund's liabilities and resulting in lower pension amounts; furthermore, to acquire an entitlement to an ordinary pension under the Poder Judicial scheme, a 40% contribution rate is required, which is far higher than under the IVM scheme and translates into 10 additional years of service.
Conclusion 2. Approximately 62% of Poder Judicial employees earn salaries below ¢1.259.005,00 colones, which would generate retirement entitlements for this population that are lower than those granted by the IVM scheme, assuming that figure represents the average salary for the last 240 months.
Conclusion 3. The reform of the Poder Judicial scheme generates pensions similar to those of the IVM scheme; however, for the lowest-paid Poder Judicial employees, these pensions could be lower than those received by IVM scheme workers, meaning the reform is neither attractive, nor competitive, nor financially worthwhile for these employees.
Conclusion 4. Under the current pension-granting structure, early retirement — before age 62 — is incentivized, which increases the actuarial liabilities (pasivos actuariales) of the Poder Judicial Retirement and Pension Fund.
Conclusion 5. A tripartite contribution (cotización tripartita) of 28.6% for the Poder Judicial scheme and 13% for the employee are, respectively, 281.5% and 338.5% higher than their counterparts in the IVM scheme, even though for the majority of judicial employees their pension will be lower than that granted by the CCSS; that is, there is no relationship — or the relationship is disproportionate — between the amount contributed and the pension to be granted.
They state that the principles of solidarity — both intergenerational and intragenerational — are broken at the point when employees are able to withdraw their funds, as if there were no support for retired populations. They add that, furthermore, given the parafiscal nature of contributions, these cannot be considered part of the employee's personal assets but rather of the collective, serving a defined purpose, so that the transfer of contributions to a private individual fund is contrary to the purpose for which those contributions were created. They note that expert Esteban Bermúdez Aguilar, actuarial consultant and author of the study being referenced, stated:
"To conclude this analysis, the combination of the low or similar benefits provided by the current reform together with the possibility of transferring IVM contributions — with the corresponding privatization of the contribution differential upon transfer to the ROP — opens a troubling possibility whereby employees, upon reaching the required IVM contribution threshold, may choose to resign from the Poder Judicial, work independently, contribute to the IVM for a set period of time, request a transfer, and thereby access an IVM pension but with a larger ROP component, generating a larger supplementary pension at the expense of weakening the RJPPJ fund." They further note that the aforementioned professional warned that "(C)urrently, the IVM does not require minimum membership periods in that scheme in order to transfer contributions." They state that it is evident that the Retirement and Pension Scheme of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial) established under Ley número 9544 rewards higher salaries with better pensions, while granting lower pension amounts to the lowest-paid majority of Judicial Branch workers—thereby providing a substantially smaller benefit than they would have received had they contributed to the Invalidity, Old Age, and Death Scheme (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social—as shown in the embedded tables—for the lowest-ranked positions in the Judicial Branch; and a condition of privilege is maintained for the institution's senior management positions.
They consider that the foregoing breaks the social security principles of pension redistribution and solidarity, understood as the manner in which a pension scheme distributes accumulated savings among its members in a way that is deemed fair or appropriate; in the specific case at hand, they consider that an unequal and discriminatory scheme has been created.
They argue that, as designed by the legislators in Ley número 9544, the redistribution of accumulated savings favors the highest-earning sector of members enrolled in the Retirement and Pension Scheme of the Judicial Branch, who constitute the minority of workers and amount to barely 1% of the institution's collective workforce.
They note that by resolution número 2017-015272 of the Sala Constitucional, handed down at 9:30 a.m. on September 25, 2017, an action of unconstitutionality (acción de inconstitucionalidad), número 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 senior hierarchy of the Judicial Branch were increased—one of the main causes of the outflow of funds from the Judicial Branch Scheme, thereby triggering a crisis and destabilization of the Retirement and Pension Scheme of this Branch of the Republic.
They argue that, in their view, the proposal approved in Ley número 9544 is in violation of all the principles of Constitutional Law governing the right to a pension and that should underpin the reform, namely the principles of equality, redistributive justice, solidarity, and efficiency, which are themselves expressions of the concept and model of the Social and Democratic Rule of Law (Estado Social y Democrático de Derecho) 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 (actuario) of the Fondo de Jubilaciones y Pensiones del Magisterio Nacional; a study prepared at the request of the Asociación Costarricense de la Judicatura (ACOJUD) and submitted to the Sala.
They warn that, at the time the proceedings and discussions concerning reforms to the Retirement and Pension Scheme of the Judicial Branch were initiated, none of the proposals before the legislature had been accompanied by a technical study; rather, the process for engaging actuarial studies from the Instituto de Investigaciones de Ciencias Económicas of the Universidad de Costa Rica was still underway. They clarify, however, that the actuarial study carried out by that Institute of the Universidad de Costa Rica did not analyze any of the substitute texts (textos sustitutivos) adopted—in the first instance—by the Special Committee (Comisión Especial) for deliberation, nor the text ultimately voted upon by the Legislative Plenary (Plenario Legislativo), which is now Ley número 9544.
They clarify that the actuarial study addressed only the prior factors relating to the economic, financial, and accounting sustainability of the fund, and not the consequences that its approval would have for the scheme's employees and contributors, in complete disregard of the constitutional principles and principles of Constitutional Law governing this subject matter, namely solidarity, just redistribution, equality (including affirmative measures to address gender inequality), and non-discrimination; and that, on the basis of this premise, the Institute put forward its own reform proposal.
They note that, at ordinary session número 23 held on July 27, 2017, the Special Legislative Committee granted a hearing to the Instituto de Investigaciones de Ciencias Económicas in order to attempt to justify the final proposal (third substitute text) that was ultimately approved and issued as a ruling by that Committee in the same session; and that, in its response, the Instituto de Investigaciones de Ciencias Económicas of the Universidad de Costa Rica (IICE) warned of certain changes to the essential elements, once again addressing only the sustainability of the scheme.
They argue that only the purported economic soundness of the fund—which they contend is not genuine—prevailed, at the expense of the burdensome contributions borne by those enrolled in this scheme; yet the complaints regarding the harmful effect the reform would have on 62% of Judicial Branch officials were not addressed—a percentage they consider to be conservative given the pension calculation basis in the challenged Law, and which could therefore be even higher.
They add that these restrictions and limitations do not meet the criteria of utility, minimal impairment, and strict proportionality, which are the criteria for evaluating and weighing the framework for limiting fundamental rights as developed by the Sala Constitucional, above all from its decisions 3550-92 of November 24, 1992, and 4205-96 of August 20, 1996; consequently, they consider this to be a further reason why the reform is excessive and arbitrary.
They emphasize that the most serious concern of all is that this reform fails to achieve the stated purpose that allegedly motivated its creation—namely, the modification of the scheme to make it sustainable and robust and to eliminate luxury pensions (pensiones de lujo); on the contrary, they assert that the reform has harmed the generality of the Judicial Branch workforce, who now see their salaries, pensions, and retirement benefits substantially reduced, while luxury pensions remain unchanged.
They recall that both the Sala Constitucional and the Organización Internacional del Trabajo hold the view that, in order to modify the pension system, technical criteria must be available; nonetheless, despite this, Articles 224 and 224 bis of the challenged reform lack such criteria for increasing the pension calculation ceiling from 10 to 20 years.
They argue that, in this regard, the Sala Constitucional has struck down laws for lacking technical criteria, as in decision número 2011-6805 of May 27, 2011, in which subsection k) of Article 131 of the Ley de Tránsito por Vías Públicas Terrestres was annulled; decision número 2011-13393 of October 5, 2011, which annulled subsection ñ) of Article 132 of the Ley de Tránsito por Vías Públicas Terrestres; and decision número 2011-13436 of October 5, 2011, which annulled Article 3.7 of Decreto Ejecutivo 35748-MP-MINAET-MIVAH.
They add that these lines of reasoning have allowed the Sala Constitucional to declare that laws may be annulled if they are tainted by the vice of irrationality and disproportion between means and ends, and that the criteria derived from case law for declaring a law unconstitutional are the following:
They argue that adherence to these criteria enables subsequent assessment of the constitutionality of regulatory provisions, since the limitation imposed by law will represent the best alternative among others that are more burdensome to citizens' rights.
They recall that in decision número 08858-98, handed down at 4:33 p.m. on December 15, 1998, the Sala Constitucional elaborated on those concepts with respect to generally applicable provisions, in the following terms:
"Thus, an act that limits rights is reasonable when it satisfies a threefold 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 a given good or set of goods belonging to the community—or to a particular group—by adopting a measure of differentiation. That is, if such action is not taken, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore cannot be constitutionally valid. Suitability, for its part, involves a judgment as to whether the type of restriction to be adopted does or does not serve the purpose of satisfying the identified need. The suitability of the measure would indicate that other mechanisms may exist that better address the existing need, with some of them being capable of achieving the proposed purpose without restricting the enjoyment of the right in question.
Proportionality, in turn, refers to a judgment requiring comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not of a magnitude markedly greater than the benefit it seeks to achieve for the community. Of the latter two elements, it may be said that the first is based on a qualitative judgment, whereas the second rests on a quantitative comparison of the two objects analyzed." (emphasis in the original filing).
They highlight that it was the Sala Constitucional itself that developed the principle of reasonableness, elevating it to constitutional rank in the terms of decision número 3057-2014, handed down at 2:30 p.m. on March 5, 2014, in which it reasoned:
The principle of proportionality derives from the rule of law (Estado de Derecho) and constitutes a limit on the State's actions. All State bodies and entities are subject to it (...) For this reason, the principle of proportionality, even though it is not expressly established in the Political Constitution, has been recognized by the case law of this Chamber as a principle of constitutional rank, integrated into constitutional law, and binding on all parties, both in the phase of creating the norm and in the stages of interpretation and application to specific cases. The proportionality test (juicio de proporcionalidad) involves, first, an analysis or assessment of adequacy or suitability (adecuación o idoneidad), whereby a law is adequate when it can help to achieve the desired objective; second, an analysis of necessity (necesidad), that is, a law is necessary when the legislator could not have chosen another equally effective means that would have implied a lesser restriction or limitation of the fundamental right; and finally, an examination of proportionality in the strict sense (proporcionalidad en sentido estricto) or prohibition of excessive restriction.
(...) In this regard, proportionality is closely linked to the reasonableness (razonabilidad) of norms, being one of its components. Constitutional case law itself has identified its components as legitimacy (legitimidad), suitability, necessity, and proportionality in the strict sense, holding that: "... Legitimacy refers to the fact that the objective sought by the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the challenged state measure must be capable of effectively achieving the intended objective; necessity means that, among several equally apt measures for achieving such objective, the competent authority must choose the one that least affects the legal sphere (esfera jurídica) of the individual; and proportionality in the strict sense provides that, apart from the requirement that the norm be apt and necessary, what it orders 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 and fifty-nine minutes on the twelfth of June of nineteen ninety-eight). Thus, an act that limits rights is reasonable when it meets a triple condition: it is necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it necessary to protect some good or set of goods of the community — or of a given group — through the adoption of a differentiating measure. That is, if such 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, for its part, involves a judgment as to whether the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The suitability of the measure would indicate that other mechanisms may exist that better address the existing need, with some of them being capable of fulfilling the proposed purpose without restricting the enjoyment of the right in question.
Proportionality, in turn, refers 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 markedly greater than the benefit sought to be obtained for the community. Of the last two elements, it may be said that the first is based on a qualitative judgment, while the second starts 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 note that these rules are similar to those developed by the German Constitutional Court (Tribunal Constitucional Alemán), which has defined 3 basic concepts for analyzing the constitutionality of laws not grounded in direct conflict with a specific provision of the constitutional text, and which has established that it is not possible to enact laws that restrict human rights if no appropriate means exist to achieve a legitimate end, that the least restrictive effects must be provided for, and that the means must be proportionate to the end:
"PROPORTIONALITY. The principle of proportionality, like the concept of an objective order of values, ...is crucial to understanding German Constitutional Law. Proportionality plays a role similar to that of the American Due Process Doctrine. The Basic Law (Ley Básica) contains no explicit reference to proportionality, but the Constitution regards it as an indispensable element of a state based on the rule of law. The Court consistently invokes the principle of proportionality in 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. In fact, the German approach is not so different from the methodology frequently employed by the United States Supreme Court in cases involving fundamental rights.
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 bounded 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 bears on a constitutional right. Second, the means employed to achieve the valid end must have the least restrictive effects (Erforderiichkeit) 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 "minimum 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 standard of proportionality appears entirely compatible with, if not required by, the principle of practical concordance (concordancia práctica)" (Donald P. Komers. The Constitutional Jurisprudence of the Federal Republic of Germany. Duke University Press. Durham and London. 1997. Page 46) (emphasis in the brief).
They note that the Sala Constitucional has adopted these criteria from the German Constitutional Court in a judgment concerning disregard of speed limits, in which it stated:
"… German doctrine made an important contribution to the subject of 'reasonableness' by succeeding in identifying, in a very clear manner, its components: legitimacy, suitability, necessity, and proportionality in the strict sense — ideas it develops by stating that '...Legitimacy refers to the fact that the objective sought by the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the challenged state measure must be capable of effectively achieving the intended objective; necessity means that, among several equally apt measures for achieving such objective, the competent authority must choose the one that least affects the legal sphere of the individual; and proportionality in the strict sense provides that, apart from the requirement that the norm be apt and necessary, what it orders 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) (emphasis in the brief).
They conclude that the Sala Constitucional has defined these concepts of rationality and proportionality broadly, referring to possible legislative excesses in the regulation of freedoms, and therefore consider that the reform does not meet these criteria of reasonableness and proportionality because it created a lower pension for 62% of Poder Judicial employees, without a technical criterion to justify it and in complete 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) With respect to this point, they argue that this legislation does not address gender differentiation in the design of the pension and retirement benefits (jubilaciones) system, in serious and direct violation of the principle of affirmative action (discriminación positiva).
They note that Article 224 of the Ley Orgánica del Poder Judicial, as amended by Ley número 9544, requires the same retirement age for both male and female judicial employees to access the ordinary pension (pensión ordinaria), setting for both the completed age of 65 years. They consider that, with this measure, the legislators equated two groups that are in a plainly unequal situation on grounds of gender, thereby failing to comply with the principle of equality, which not only requires treating equal situations equally and differentiating what is different, but also establishing affirmative measures in situations of disadvantage. They consider that failing to address the particular socioeconomic and labor situations of women working in the Poder Judicial contravenes the fundamental right to real equality, the right to health, and to human dignity, enshrined in Articles 33 and 21 of the Political Constitution, as the legislature did not enact affirmative action measures to alleviate the unequal situation of women relative to men.
They note that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by the Government of Costa Rica through Ley número 6968 of October 2, 1984, and in force from the date of 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 in the brief).
For their part, they recall that Article 2 of that Convention provides:
"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...
e)…
f)... " (emphasis in the brief).
And in the same vein, they cite Article 11 of that Convention:
"1- States Parties shall take all appropriate measures to eliminate discrimination against women in the sphere of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(...)
(...)" (emphasis in the brief).
In the same vein, they argue that the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women "Convención de Belém Do Para," in Article 6, recognized that every woman's right to a life free from violence includes, and translates into, among other things, "...the right to be free from all forms of discrimination"; in other words, every form of discrimination—such as the failure to acknowledge her disadvantaged condition, which affects the right to equality—is a sanctioned form of violence (emphasis in the brief). They indicate that, with respect to the retirement pension right, the establishment of a different age for recognition of an ordinary pension for women relative to men is required, which is grounded in respect for equal rights between them, since when speaking of women's rights and their defense and development, it is necessary to recognize that the various tasks assigned to women place them in a position of greater vulnerability and, therefore, to address this reality, recourse has been had to what United States legal doctrine has called positive action or affirmative action ("affirmative action"), which is nothing other than the application of policies or measures to benefit certain minority groups or those that have historically suffered discrimination, with the primary objective of seeking balance.
They state that, in this regard, the solvency study of the Retirement and Pension Fund of the Poder Judicial never contemplated as a likely scenario the clearest distinction in favor of women, and this was officially confirmed by José Antonio Cordero Peña, Director of the IICE of the UCR, through official communication IICE-176-2017 addressed to Msc. Jeannette Arias Meza, Head of the Technical Secretariat for Gender and Access to Justice of the Poder Judicial. They note that in the Final Report: "Recopilación e informe Final: Conclusiones Recomendaciones, Producto 6," of the IICE dated May 23, 2017, it is acknowledged that, according to the Poder Judicial's databases for 2010–2015, women have a lower share in the total number of retirees, since in 2014—used as a reference year—women accounted for 32% of retirees, which reflects the barriers to access to paid employment in general, such that those who do manage to gain access to a formal pension scheme (régimen de pensiones) must endure it under conditions of inequality.
They argue that, in conclusion, it is clear that the equalization of retirement pension conditions for men and women in Article 224 of the Ley Orgánica del Poder Judicial, as amended by Ley 9544, plainly violates Articles 21 and 33 of the Constitución Política, as well as the aforementioned international conventions, because it disregards the existing differences in women's working conditions and, by equating the retirement pension requirements between men and women, causes real harm to women, given that it is they who carry out an additional unpaid workload, having been socially assigned the role of caregivers and child-rearers, with the consequences this has for their comprehensive development and health. On this matter, they reference the following studies on the situation of women in Costa Rica, which they consider to be objective documents that justify and support the genuinely differentiated employment situation relative to that of men:
On the other hand, b) they argue that the transitional provisions (normativa transitoria) contained in Ley 9544 are discriminatory in that they fail to provide for gradualism (progresividad) in their implementation. They indicate that the modification to the pension scheme adopted by Ley 9544 is drastic and burdensome for Poder Judicial employees, since all of its elements were substantially modified in an abrupt manner, without any provision for a gradual or phased implementation, as they believe should have been done in order to avoid serious harm—harm which they consider is already being seen in practice with the consequences for the generality of employees and, to a lesser extent, with respect to the 3% of those whose pensions fall in the range above ₡4 million colones. They therefore consider that the legislature should have provided for gradual measures, as proposed by the Poder Judicial unions to the Asamblea Legislativa, in order to compensate for the additional sacrifice that the working class must bear under this new pension scheme.
They indicate that the Comptroller General of the Republic expressed herself to that effect when she stated to the members of the Special Committee, and insisted upon, the need to adopt remedial and preventive measures to guarantee the sustainability of the pension scheme, in accordance with the country's socioeconomic reality and the finances of the State, without this translating into a weakening of the Poder Judicial—with respect to the compensation system for judicial employees (servidores judiciales) and, of course, the institution's pension system—clarifying that such changes "... will be gradual because these matters are complex. As I was telling don Johnny, one cannot expect to have everyone ideally in the same scheme from one year to the next; it is very complex and requires gradualism and proportionality" (see Minutes of Ordinary Session No. 8 of the Special Committee, held on November 16, 2016) (emphasis in the brief).
They consider that the failure to provide for phased implementation in carrying out these changes to the Poder Judicial's pension and retirement system causes a special harm to a collective representing 62%; a serious and particular harm already being generated by the strict enforcement of this law on judicial employees, inasmuch as from one day to the next they saw their salaries significantly reduced, not only due to the increase in contributions (cotización) to the pension scheme but also due to the financing of the Junta de Administración. They add that, in this regard, based on the actuarial study (estudio actuarial) prepared by the Universidad de Costa Rica—which in its Product 5 set out several criteria, of which IICE_3 and IICE_4 were not only sustainable but also showed a surplus—through official communication 222-P-2017 of July 27, 2017, Msc. Carlos A. Montero Zúñiga, member of the Consejo Superior and Coordinator of the Technical Team of the Poder Judicial, requested of the Special Committee that gradualism be contemplated in the application of the new regulations to be determined and approved, in the following terms:
"1. The Poder Judicial formally received, to its satisfaction, the Actuarial Study of the Retirement and Pension Fund prepared by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica, which was developed with the participation of the Poder Judicial union coalition as part of the Executive Committee that approved the products prepared by the Universidad de Costa Rica.
2. The study sets out two actuarial solvency frameworks, IICE_3 and IICE_4, each of which was in turn developed under three scenarios: a pessimistic one with a rate of return of 2%, a normal one of 3%, and an optimistic one of 4%.
Under the optimistic scenarios, not only is the deficit overcome, but an actuarial surplus is achieved.
3. As per official communication No. 0406-FC-2017 signed by Máster Floribel Campos Solano, Head of the Financial-Accounting Department, attached from the year 2000 to the present date, the Retirement and Pension Fund has obtained real returns of 4.64%.
All of the foregoing demonstrates that it is possible to work with the 4% scenarios and that the surplus thereby generated can compensate for the introduction of gradual measures that mitigate the negative impact of any eventual reforms on judicial employees." They indicate that this request was reiterated by Mr. Carlos A. Montero Zúñiga in official communication 223-P-2017 of July 27, 2017; both communications were submitted to the Sala as evidence. They allege that, notwithstanding, the content of those communications was not heeded in compliance with superior—constitutional—principles of least restrictive means, equality, and solidarity. On the other hand, c) they consider that there is discriminatory treatment to the detriment of judicial employees with respect to the treatment of vested rights (derechos adquiridos), as compared to officials of the Tribunal Supremo de Elecciones who contribute to the Retirement and Pension Scheme of the Poder Judicial.
On this matter, they point out that the differing treatment by the legislature with regard to vested rights, in determining the passage of the challenged law, stands in stark contrast. They argue that, pursuant to the mandate of Article 129 of the Constitución Política, laws passed by the Asamblea Legislativa "... are binding and take effect from the day they designate; failing such designation, 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 number—the legislators provided for its immediate entry into force upon publication, which occurred in La Gaceta No. 89 of May 22, 2018. They note that in Transitional Provision (Transitorio) VI, the following provision was established:
"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 enactment of this law, may retire under the provisions established in said text." They state that, without any objective justification, differentiated treatment was accorded to those employees who, while belonging to the Retirement and Pension Scheme of the Poder Judicial, work at the Tribunal Supremo de Elecciones, in that those officials were accorded an unrestricted right of membership in that scheme but on the basis of the repealed regulations, regardless of how long it might take them to meet those requirements.
TRANSITORIO II — The officials of the Tribunal Supremo de Elecciones referred to in article 242 of Ley N.° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, who made contributions (cotizaciones) to the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Judicial Branch prior to the entry into force of this law, shall not have this reform applied to their detriment, and their vested rights (derechos adquiridos) acquired in good faith must be respected at all times. Nevertheless, they are authorized to request, under the terms set forth in articles 226 and 234 of this law, the return of the employee, state, and employer contributions (cotizaciones obreras, estatales y patronales) made to the Retirement and Pension Fund of the Judicial Branch, so that they may transfer to the Disability, Old Age, and Death Pension Scheme (Régimen de Pensiones, Invalidez, Vejez y Muerte), administered by the Caja Costarricense de Seguro Social (CCSS), if they so wish.
They argue that the Association they represent and those bringing the action, considered collectively, view this transitional provision as entirely discriminatory, in that it distinguishes among members of the Retirement and Pension Scheme (Régimen de Jubilaciones y Pensiones) of the Judicial Branch depending on whether they work for the Judicial Branch itself or, alternatively, for the Tribunal Supremo de Elecciones; in this regard they question why, if the prior regulations are the same, this odious distinction was created. On the basis of these arguments, they request that TRANSITORIO II of Ley número 9544 be declared unconstitutional for grossly violating the principle of equality (principio de igualdad) set forth in article 33 of the Constitución Política.
Based on the arguments raised in this action of unconstitutionality (acción de inconstitucionalidad), they conclude the following:
They conclude by requesting that Ley 9544 be declared unconstitutional in the terms they have set forth and that the Chamber so declare.
"In all of this, judicial independence (independencia judicial) plays a leading role, for in a Constitutional State under the Rule of Law (Estado Constitucional de Derecho)—that is, in a Democratic State—this principle has an institutional dimension within the Poder Judicial itself, vis-à-vis any of the other branches of the State, which also necessarily entails the personal and functional independence of the figure of the judge, not only in relation to those other branches of the State but also in relation to the senior officials (jerarcas) of the Poder Judicial. As things stand today, there is no Rule of Law if the Poder Judicial—including all of its officers—does not enjoy real and effective independence." It states that, in accordance with what has been discussed thus far, any legislation introduced concerning the creation, substantial modification, variation, or suppression of strictly jurisdictional bodies or administrative bodies attached to the Poder Judicial, or that creates, substantially modifies, or eliminates such functions, as was done in bill N° 19.922, must comply with the mandatory consultation (consulta preceptiva) procedure set forth in Article 167 of the Political Constitution; an essential requirement for compliance with the constitutional-rank principle of economic, financial, and administrative independence of the Poder Judicial.
It argues that, in support of the existence of the constitutional principle of independence and a special regime of retirement benefits and pensions (régimen especial de jubilaciones y pensiones), it considers it necessary to cite the explanatory memorandum (exposición de motivos) that led to the enactment (promulgación) of Ley N°34 of June 9, 1939, known as the Ley de Jubilaciones y Pensiones Judiciales, as an addition to the Organic Law of the Poder Judicial, when Representative (Diputado) Teodoro Picado Michalski, on June 2, 1938, stated:
"The Poder Judicial is one of the three main pillars upon which the Government of the Republic rests; and it is its officers who, by virtue of performing highly sensitive functions essential to the very life of Society, are required—more than other public employees—to possess greater learning, integrity, and diligence. And it is surely for this reason that, in demanding of judicial officers a complete dedication, over many years, to the supremely important task of administering justice—with the noble purpose of securing their livelihood upon reaching old age or when physical ailments prevent them from working—that there have been repeated calls before the Congress, across different legislative sessions (períodos legislativos), for the enactment of a law that addresses that difficult situation of the officers and employees of the Poder Judicial." (Emphases are from the written submission (memorial).)
It states that the preceding quotation may derive from the same source that inspired the amendment to constitutional Article 177, through Ley N° 2122, which was motivated by exactly the same considerations expressed by Representative Picado regarding the special conditions of responsibility borne by judicial officers and the necessary independence that has been developed in judgment (sentencia) N° 5857-2018 of 3:40 p.m. on April 12, 2018, issued by the Sala Constitucional, which states, insofar as relevant, the following:
"It must not be overlooked that judges (personas juzgadoras) and judicial officers (funcionariado judicial) in general are subject to a regime of prohibitions and incompatibilities (prohibiciones e incompatibilidades) of far greater intensity and rigor than the incompatibility and prohibition regime that applies to other public servants, making theirs a wholly distinct nature. The regulations that apply to the administrative staff of the entire public sector cannot also be applied to judicial officers. In this regard, the constitutional principles of reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions—which responds to the very nature of jurisdictional and administrative functions—must be offset by economic compensation, both in terms of salary and upon termination of the employment relationship. But also the principle of equality, enshrined in Article 33 of the Political Constitution, entails the prohibition of treating unequals as equals, since doing so gives rise to discrimination contrary to constitutional law.
In the case of judges and judicial officers, there exist objective, reasonable, and justified conditions, grounded in the very nature of the jurisdictional function being exercised, for affording them treatment different from that given to other public servants across the various administrations; this, far from constituting discrimination, upholds the principle of equality enshrined in the aforementioned constitutional provision. This means that, if a differentiated retirement regime (régimen jubilatorio diferenciado) exists for the jurisdictional sector, it does not stem from an arbitrary, subjective, or capricious decision by the legislature, but rather from the specific and distinct nature of the jurisdictional function itself, which objectively and constitutionally justifies it." (Emphases are from the written submission.)
It argues that, in accordance with the foregoing quotation, 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 Poder Judicial, that independence stands as a structural condition derived from the Constitution itself, but it also requires the personal and functional independence of the figure of the administrator of justice (administrador de justicia), in relation to those other branches of the State, and even in relation to the senior officials of the Poder Judicial. It adds that, furthermore, the independence of the judicial officer is not only constitutionally protected (Art. 154) but also, within the framework of principles enshrined in international conventions (principios convencionales), such function is of great importance, as recognized by the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos) in the case of Poblete Vilches y Otros Vs. Chile, in its judgment of March 8, 2018, which stated, insofar as relevant:
"195. The Court emphasizes that the right to be tried by an impartial judge or tribunal is a fundamental guarantee of due process (debido proceso), and it must be ensured that the judge or tribunal, in the exercise of its adjudicatory function, possesses the greatest possible objectivity in approaching the trial. This Tribunal has established that impartiality requires that the judge intervening in a particular dispute approach the facts of the case free of any subjective prejudice and, likewise, offer sufficient objective guarantees capable of inspiring the necessary confidence in the parties to the case, as well as in citizens in a democratic society. The impartiality of the tribunal implies that its members have no direct interest, no predetermined position, no preference for any of the parties, and are not involved in the dispute. This is so because the judge must appear to act without being subject to influence, inducement, pressure, threat, or interference, whether direct or indirect, but solely and exclusively in accordance with—and moved by—the Law." It indicates that this is so because the American Convention on Human Rights (Convención Americana de Derechos Humanos) provides, in its provision 8.1:
"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 charge against him, or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature." (Emphases are from the written submission.)
It adds that, in line with the American Convention on Human Rights, the International Covenant on Civil and Political Rights (Pacto Internacional de Derechos Civiles y Políticos) provides in its Article 14):
"1. All persons shall be equal before the courts and tribunals of justice. Every person shall have the right to a fair and public hearing, with due guarantees, by a competent, independent, and impartial tribunal established by law, in the substantiation of any criminal charge against him or in the determination of his rights and obligations of a civil character…" (Emphases are from the written submission.)
It argues that all of the foregoing is further 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 August 26 to September 6, 1985, and confirmed by the United Nations General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, principle 11 provides:
"11. The law shall guarantee the tenure in office of judges for the periods established, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement." (Emphases are from the written submission.)
It contends that, in this way, the United Nations recommends to all member countries that legal rules must guarantee judges adequate remuneration and conditions of service and retirement, proportionate to the complexity, difficulty, and importance of their function for democracy, which must be understood as covering the entire organization of the administration of justice, both in jurisdictional and administrative matters. It adds that, likewise, in the "European Charter on the Statute for Judges," adopted in Strasbourg between July 8 and 10, 1998, in pursuit of real and effective independence of the Poder Judicial and of the officers 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 entitles the judge to remuneration, the level of which shall be determined with the aim of shielding him or her from pressures aimed at influencing his or her decisions and, in general, his or her jurisdictional conduct, thereby altering his or 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 or her functions, after having exercised them professionally for a specified period, receives payment of a retirement pension whose amount shall approximate as closely as possible that of his or her last active judicial remuneration." (Emphases are from the written submission.)
It indicates that the aforementioned instrument seeks to achieve a Poder Judicial that is genuinely and effectively independent both during its active working life and in retirement, where remuneration as close as possible to the last salary is proposed—which constitutes a guarantee in favor of citizens—such that the adequate remuneration and pension of current officers and auxiliaries of justice, in the terms expressed therein, constitute the due and reasonable consequence of performing a sensitive function of great difficulty and responsibility. It argues that, likewise, the "Statute of the Ibero-American Judge (Estatuto del Juez Iberoamericano)," approved at the Sixth Ibero-American Summit of Presidents of Supreme Courts and Supreme Courts 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 providing:
"Art. 32. Remuneration.
Judges must receive sufficient, irreducible (irreductible) remuneration, commensurate with the importance of the function they perform and with the demands and responsibilities it entails." (Emphases are from the written submission.)
And, in Article 33, it provides:
"Art. 33. Social Security.
"The State must offer judges access to a social security system, guaranteeing that, upon the conclusion of their years of service by retirement (jubilación), illness, or other legally provided contingencies, or in the event of personal, family, or property damages arising from the exercise of their office, they will receive a dignified pension (pensión) or adequate compensation" (emphasis added by the petitioner).
It notes that it must be borne in mind that retirement and pension, in the case of judicial officers, 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 N° 2200 A (XXI) de 16 de diciembre de 1966; regulations that were also embraced in Report N° 1 of 23 de noviembre del 2001, submitted by the Consultative Council of European Judges (Consejo Consultivo de Jueces Europeos, CCJE) when examining the topic of the independence and irremovability (inamovilidad) of judges, and which, with respect to the topic of judges' salaries, 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 to ensure de facto the 'increase of salaries in line with the cost of living'" (emphasis added by the petitioner).
It adds that the criteria for protecting the salaries and pensions of judicial officers set forth in these recommendations are fully applicable to the matter of pensions and retirement benefits of judges and judicial employees in general, since they are intimately related to the principle of independence of the Judiciary (Poder Judicial); regulations that have not only been established at the international level, but have also been the subject of internal regulation within the Judiciary, with similar considerations to those stated. It indicates that, on this matter, the Corte Plena approved the Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, in whose articles 19, 20, 21, 22, 23 and 24, reference is made to the independence of the Judiciary and of judges, in their various dimensions, as principles derived from Articles 9, 154 and 177 of the Constitución Política.
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 Judiciary, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budgetary appropriations…", which it affirms is intimately related to the provisions of Article 177 of the Constitución Política, regarding the constitutional allocation of the necessary resources in the national budgets to guarantee the economic independence of the Judiciary. It argues that, likewise, Article 49 of the aforementioned Statute also enshrines, as do the international instruments examined, the principle of the non-reducible salary (salario irreductible) of the judge:
"Judges must receive a sufficient, non-reducible remuneration that is commensurate with the importance of the function they perform and with the demands and responsibilities it entails" (emphasis added by the petitioner).
It notes that respect for judicial independence, a democratic principle and balance of powers, which is one of the aims pursued by Articles 9, 154 and 167 of the Carta Magna, was also expressly regulated in the Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, Article 20, by providing that:
"The other branches of the State and, in general, all national or international authorities, institutions, and bodies, must respect and give effect to the independence of the judiciary." It notes that, precisely, the unconsulted interference by the legislative body in the organization or functioning of the Judiciary — whether by creating, modifying, or suppressing judicial or administrative bodies or powers — is constitutionally impermissible, as it constitutes a flagrant violation of the principle of judicial independence, unless the required procedures are followed, which function as true counterweights to prevent the Legislature from making changes to the rules governing the Administration of Justice. It indicates that the independence of the Judiciary is a principle of a particular and specific nature, distinct from that of the other branches of the State, as it consists of a shield of protection against the interference 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 Judiciary that administers justice, and therefore justice must be objective, impartial, and free from any external pressure.
On this matter, it argues that the economic pressure arising from Ley 9544 being challenged is inappropriate because it dismantles the principle of balance among the branches of government with a harmful effect on the real and effective independence of the Judiciary. It states that it is important to highlight the historical account of the creation of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Judiciary that was included in judgment number 2018-005758 of 15 hours 40 minutes of 12 de abril de 2018, by which the optional constitutional review (consulta facultativa de constitucionalidad) of bill expediente N°19.922 was resolved, noting that more than 79 years have passed since its creation, that it holds assets which, as of 30 de junio de 2018, amounted to ¢515.690.192,035 million colones, along with 3193 retirees, 747 pensioners, and 13367 active employees.
It adds that, with the enactment of Ley 9544, the Legislative Branch radically modified — despite the negative opinion of the Corte Suprema de Justicia — the functions assigned to the Corte Plena and the Superior Council under the Ley Orgánica in force prior to the reform, from which it may be concluded that there was a direct injury to the independence constitutionally granted by Articles 9, 11, 152, 154, 167 and 177 of the Constitución Política to the Judiciary. It argues that Ley N° 9.544 incorporated into its content matters reserved for and pertaining to the organization or functioning of the Judiciary, which constitutes a serious encroachment upon the competences of the highest-ranking body of the Judiciary (Art. 152 of the Constitución Política), in clear violation of the mandatory consultation (consulta obligatoria) required under Article 167 of the Constitución Política. It affirms that the Asamblea Legislativa disregarded the negative opinion of the Corte Suprema de Justicia when it was consulted on the Special Committee's report, without the formalities of a mandatory constitutional consultation (consulta perceptiva), even though, given the nature of the bill and the invasion of Judiciary functions — equivalent to a police intervention — the legislative body was obligated to mandatorily submit the proposed reform to the Judiciary's Retirement and Pension Regime, expediente N°19.922, for consultation in the terms set forth in Article 167 of the Constitución Política, since the provisions contained therein substantially modified the organization or functioning of the Judiciary.
It argues that the encroachment of the challenged reform on the organization or functioning of the Judiciary is so evident that it strips the Superior Council of the competence granted to it by the Ley Orgánica to administer the Fund, precisely in accordance with investment policies established by the Corte Plena itself, as was provided in Article 81, subsection 12 of that Ley Orgánica, today illegitimately repealed. It alleges that, specifically, in the process of enacting Ley 9.544, the following violations of the Constitución Política occurred:
It adds that the Legislative Assembly and, in particular, the Special Committee designated to process said bill, were obligated by the express and mandatory provision of constitutional Article 167 to consult the bill prior to its being reported out of committee, and that the vote required to depart from the opinion of the Supreme Court of Justice was a qualified majority of all legislators. Notwithstanding the foregoing, it argues that, in the present case, those steps did not occur in the manner prescribed by the Political Constitution and that, consequently, the enacted reform under challenge is unconstitutional. It recalls that Article 167 of the Political Constitution expressly provides as follows:
"For the discussion and approval of bills that concern the organization or functioning of the Judiciary, the Legislative Assembly must consult the Supreme Court of Justice; to depart from its opinion, the vote of two-thirds of all members of the Assembly shall be required." It emphasizes that the cited provision is clear in stating that a mandatory consultation with the Supreme Court of Justice is required for the discussion and approval of bills when these affect the organization of the Judiciary, and likewise that departing from the opinion rendered by the Supreme Court of Justice requires the vote of two-thirds of all members of the Legislative Assembly; this, it affirms, flows from the principle of separation of powers (independencia de poderes) that governs the country, such that, with respect to the organization or functioning of the Judiciary, the constitutional power of self-regulation is included, by virtue of the autonomy derived from constitutional articles 9 and 154, so that if the internal jurisdictional and administrative organization has been regulated by laws originating at the initiative of the Judiciary itself, amendments to that internal order — which is protected by the Division and Independence of the Branches of the Republic — must be subject to consultation so that no undue interference occurs in violation of the Political Constitution.
It adds that, with respect to the scope of the terms contained in constitutional Article 167, the biased interpretation in judgment N° 5758-2018 of 15:40 hours of April 12, 2018, which analyzed Optional Legislative Consultation No. 17-017148-0007-CO, warrants separate analysis in order to situate the scope that the Constitutional Chamber itself has assigned to the terms "organization or functioning," an exercise that would be meaningless if its interpretation were severed from the constitutional-rank principles of independence and separation of powers, embodied in articles 9, 154, 167, and 177 of the Political Constitution.
It argues that, in searching for precedents of the Constitutional Chamber regarding the scope of constitutional Article 167, one must turn to judgments where the terms "organization or functioning" have been analyzed in concrete terms, in light of the principles that underpin them — namely, the independence and separation of powers. It notes that, in this search, it identified judgment No. 2008-5179 of 11:00 hours of April 4, 2008, cited by judgment 5758-2018 of 15:40 hours of April 12, 2018, in which, it submits, the scope of both terms is comprehensively addressed in relation to the principle of independence and division of powers and functions, expressly stating:
"… that a bill concerns these matters when its articles contain explicit provisions establishing the creation, substantial modification, or suppression of strictly jurisdictional organs or of organs of an administrative nature attached to the Judiciary, or when it creates ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions…" (emphasis in the original brief).
It considers that what the Chamber stated fully coincides with the scope and content of constitutional Article 167, insofar as the essential principles of independence and separation of powers are preserved by requiring the Legislative Branch to consult on bills that affect the Judiciary's organization or functioning. It adds that judgment N° 2008-5179 of 11:00 hours of April 4, 2008 of the Constitutional Chamber explains the grounds for mandatory consultation in a precise manner, highlighting that the Judiciary enjoys functional, administrative, and economic independence conferred by the Political Constitution pursuant to articles 9 and 177. It considers that Bill No. 19.922, through which the reforms to Title IX of the Retirement and Pension Fund of the Judiciary were processed, should formally have been referred to the Supreme Court of Justice, as is evident from a reading of the text of constitutional Article 167, because that bill contains provisions directly related to the organization or functioning of the Judiciary, inasmuch as it removed functions from Corte Plena, the Superior Council (Consejo Superior), the Executive Directorate (Dirección Ejecutiva), the Audit Office (Auditoría), the Human Resources Management Directorate (Dirección de Gestión Humana), and the Financial and Accounting Department (Departamento Financiero Contable) — all of the Judiciary — in order to create a Fund Administrative Board (Junta Administradora del Fondo) as an organ of the Judiciary over which Corte Plena, as the supreme governing body of that Branch, has no jurisdiction whatsoever, which, in its view, creates a conflict of constitutional dimension because it encroaches upon the powers and functions conferred upon the Judiciary by the Political Constitution, by virtue of the constitutional-rank principles of separation of powers, independence of powers, and the democratic principle.
It notes that the correct text of the Political Constitution uses "organization or functioning"; the letter "o" is a disjunctive conjunction, and together the two words form a unit that constitutes a technical system of institutional governance, in which an organic structure is established with its competencies and the coordination and oversight relationships among organs (organization), complemented by the sphere of exercise of functions and competencies through organs with a high degree of autonomy. It thus argues that, for purposes 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 integral parts of a single entity, and therefore considers it an error to believe that they are two different things warranting different treatment. It adds that, in judgment N° 2008-5179 of 11:00 hours of April 4, 2008, the Constitutional Chamber undertook a broader analysis of the terms "organization or functioning" used in Article 167 of the Political Constitution in order to establish the cases in which bills pending in the legislative stream must be mandatorily referred to the Supreme Court of Justice; accordingly, it was clearly determined there that, in cases involving the modification or suppression of jurisdictional or administrative organs — which are ordinarily regulated in the Organic Law of the Judiciary, special laws, or codified laws — consultation is mandatory, as a means of upholding the constitutional principle of balance of powers between the Judiciary and the Legislative Branch. It states that, in its view, this is the understanding conveyed by the referenced judgment when it expresses the following:
…it should be noted that such an interpretation is required for the sake of maintaining the balance of powers, without privileging one constitutional body over another, so that each may exercise its functions in an independent and separate manner, as the constitutional text itself demands (Article 9 of the Constitution). In other words, the precise definition of these concepts prevents any collision, overreach, or exacerbation of the respective functions, in the interest of maintaining the balance and containment of powers, inasmuch as the purpose of the rule consists not only in the functional independence (independencia funcional) and budgetary autonomy (autonomía presupuestaria) of the Judicial Branch (Poder Judicial), but also in the balance between the Legislative Branch (Poder Legislativo) and the Judicial Branch. Indeed, a broad interpretation of the terms employed by the original constituent assembly, on the part of the Corte Plena, could lead to certain subject matters that, strictly speaking, do not relate to the organization and functioning of the Judicial Branch being unjustifiably required to be enacted through a reinforced majority law (ley reforzada), thereby unnecessarily slowing or obstructing the legislative function.
On the other hand, the disapplication by the Asamblea Legislativa of the constitutional provision — upon erroneously concluding 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" (emphasis in the brief).
In this regard, [the party] considers that there is not the slightest doubt that the Sala Constitucional has understood that matters relating to the administrative organization of the Judicial Branch — and not merely those concerning the direct or indirect impact on the adjudicative function (función jurisdiccional) — oblige the legislative body to submit the consultation in the terms set forth in Article 167 of the Constitución Política, by virtue of the integration of the constitutional principle of independence into those concepts. [The party] argues that this logical mode of interpretation makes sense, not only because it is a natural derivation of Article 167, but also of other constitutional provisions such as Articles 9, 154, and 177 of the Constitución Política. [The party] further argues that the foregoing interpretation could not be otherwise, since the impact on or modification of the administrative organization of the Judicial Branch in general — and not only matters pertaining to adjudicative or judicial bodies in the strict sense — has repercussions on the Administration of Justice service it provides and on the independence that is constitutionally guaranteed to that Branch and to the judges as officials called upon to administer justice. [The party] adds that, with respect to the matter of functional or organizational independence of the Judicial Branch, Sentencia N°5857-2018 de las 15 horas 40 minutos del 12 de abril de 2018, issued by the Sala, is consistent with the content of sentencia N° 2008-5179 de las 11:00 horas del 04 de abril del 2008, which aptly stated, insofar as relevant, the following:
"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 Constitución Política, necessarily implies the authority of that Branch of the Republic to organize itself, in order to prevent, in particular, the intrusion of political interests into its function. And it is this organizational independence — both administrative and adjudicative — that is also protected under Article 167 of the Constitution. In this regard, it is a serious conceptual error to confuse or equate the adjudicative function in the broad sense — including the functions auxiliary to the adjudicative function — with the strictly administrative function. The adjudicative function is a special and distinct function from the administrative function performed by officials of the Executive Branch (Poder Ejecutivo) or the decentralized sector.
The Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the adjudicative function as compared to the merely administrative function, even though judges and judicial support staff are also public officials. Precisely, one of those characteristics — without which it would be impossible to properly exercise the adjudicative function — is independence, in its dual dimension: both that of the Judicial Branch considered in itself, and that of the judge and other auxiliaries of the adjudicative function. It is sufficient, in order to understand the delicate task carried out by the judges of the Republic, with the collaboration of the officials who assist and support them in their functions and without whom those judges could not properly discharge their duties, simply to bear in mind that they decide cases submitted to their consideration with the force of res judicata (cosa juzgada); that is, they determine what the truth is with the authority of law in each case, and their decision, once it has attained that status, cannot, in principle, be reviewed.
This entails 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 were not guaranteed. And, in this regard, there can be no true independence if the salaries and the pensions and retirement benefits of judges and judicial support staff were not commensurate with their responsibilities — far greater than those of any other official exercising a merely administrative public function. Hence, neither group can in any way be equated — neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights" (emphasis in the brief).
[The party] argues that, in accordance with the foregoing judgment, it is clear, conclusive, and precise that any provision affecting the functioning of the Judicial Branch — understood as the mandate to administer justice, whether by judges or by the bodies that assist them — is considered part of the organization or functioning within the exclusive competence conferred upon it by the Constitución Política in Articles 9 and 154, and therefore any reform that could affect the independence and separation of powers, whether present or future, of current, future, or already retired judges, must mandatorily be referred to the Corte Plena, with the aim of guaranteeing and complying with a constitutional principle of rational balance of powers — between the Legislative Branch and the Judicial Branch. [The party] adds that, although it goes without saying, it must be borne in mind that both the Judicial Branch and its employees, given the special nature of their work, must be permanently vested with independence from the moment of their hiring as active employees until the moment of their departure from service — whether as pensioners or retirees — and therefore any amendment to the Ley Orgánica del Poder Judicial that contains the rules guaranteeing such independence must be submitted by the Asamblea Legislativa, in advance, and in accordance with the legislative formation procedures derived from constitutional and supra-constitutional principles such as the democratic principle, the principle of publicity in the formation of laws, the right of amendment, and the separation of powers. [The party] indicates that, consistent with the foregoing postulate, Sentencia N° 5857-2018 de las 15 horas 40 minutos del 12 de abril de 2018 precisely and aptly stated that:
"…There is consensus in administrative doctrine that the adjudicative function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional State of Law (Estado Constitucional de Derecho) 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 adjudicative function are unappealable; that is, they carry the force or authority of res judicata. This not only implies a great responsibility, but also the need for a series of principles and guarantees that allow for the proper exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, presents itself as a sine qua non condition for the exercise of that delicate function. It falls to the judge to decide on the sole and possible interpretation of the law, the Constitution, and the conventionality review standard (parámetro de convencionalidad), which would be impossible without the requisite independence.
But this independence would be illusory if it did not necessarily imply adequate remuneration and retirement rights commensurate with the functions and responsibilities, both for the judge proper and for the staff who assist and support them in their function. Therefore, in matters of remuneration and retirement, [the Judicial Branch] cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty entailed in the exercise of the adjudicative function justifies, with respect to the subject matter of this consultation, that the retirement pension of judicial employees not be equal to 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 on the law in force in a society, and therefore on social peace. In all of this, judicial independence plays a leading role, for in a Constitutional State of Law — that is, in a Democratic State — that principle has an institutional projection within the Judicial Branch itself, vis-à-vis any of the other Branches of the State, which also implies, indispensably, the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but also vis-à-vis the hierarchical superiors within the Judicial Branch.
Today, there is no Rule of Law (Estado de Derecho) if the Judicial Branch — with all its employees 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 in the hierarchy of norms, to the extent that it is also stipulated as a Human Right" (emphasis in the brief).
It argues that, in effect, one must start from the premise that the right to retirement or pension (jubilación o pensión), as well as salary in the case of active workers, holds constitutional rank as a fundamental right (derecho fundamental) and even as a human right, in accordance with ruling N°1147-90 of 16:00 hours on September 21, 1990, issued by the Sala Constitucional itself, which declared that the right to pension or retirement is a constitutional, fundamental, and human right that enjoys special protection under constitutional norms and International Conventions. It notes that in the case of the Poder Judicial, this right is particularly aggravated as regards any modification, owing to the existence of an additional principle known as independence. It adds that, in summary, based on the Court's own precedents: in ruling N° 1995-3063 of 15:30 hours on June 13, 1995, the Sala held that, in the case of the Ley Marco de Pensiones, there was no constitutional obligation to consult the Poder Judicial on the corresponding bill, for the simple reason that said bill did not affect judicial employees, since the text of Ley N° 7302 expressly excluded them; and in ruling N° 2002-4258 of 9:40 hours on May 10, 2002, the Sala ruled out any violation of article 167 of the Constitución Política on the grounds that the reform to the Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones) of judicial employees that was challenged bore no relation to the organization or functioning of the Poder Judicial, and referred only to the term of functioning of the Poder Judicial, without making any reference to the matter of its organization.
It further adds that, finally, in ruling 2008-5179 of 11:00 hours on April 4, 2008 — unlike the two previous rulings — the Court did not exclude matters relating to the Fondo from the mandatory consultation (consulta preceptiva) to the Corte Suprema de Justicia per se; rather, that exclusion from consultation would only apply when the bill in question had no direct connection to the "organization or functioning" of the Poder Judicial. It contends that every bill reforming the law that affects the Fondo and, consequently, its active, retired, or pensioned judicial employees falls within the definition of the concepts "organization or functioning of the Poder Judicial" set forth in article 167 of the Constitución Política, and therefore considers that, in application of the constitutional principle of independence and separation of powers, the Asamblea Legislativa was constitutionally required to consult on any such bill, such as the one associated with N° 19.922, which reformed Title IX of the Ley Orgánica del Poder Judicial and is challenged herein.
It adds that the democratic principle was developed by the legislature in article 157 of the Reglamento, providing that when, during the deliberation of a bill, it is determined that the Poder Judicial must be consulted and the Committee has not done so, consideration of the bill shall be suspended and the corresponding consultation shall be carried out. It notes that the democratic principle is defined as the requirement that the acts of those who govern be subject to the supremacy of the Constitución Política and, consequently, limits the legislature's legislative discretion. It argues that the Sala Constitucional, in ruling number 2006-003671 of 14:30 hours on March 22, 2006, effectively applied the content of said principle in holding that:
"… Up to this point, however, the Sala considers that the deliberation of this bill lacked sufficient opportunity for reflection and debate, and therefore contravenes essential features of the democratic principle… the procedure prevented an effective debate consonant with the democratic principle" It notes that parliamentary procedure is a guarantee; it does not serve as an end in itself, but rather fulfills an instrumental and protective function. It adds that, once a consultation has been submitted, if no response is received within 8 working days, it shall be understood that the body consulted has no objection to the bill; and if the body consulted does raise observations on the bill, the bill shall automatically be referred back to the Committee for the corresponding proceedings. With respect to mandatory consultations, the Constitución Política requires qualified voting majorities when it is decided to depart from the negative opinion of the body consulted.
It indicates that, in the specific case at hand, given that Corte Plena had noted that bill N° 19.922 affected the organization, functioning, and independence of the Poder Judicial, it is evident that the bill was required to be subjected to a mandatory consultation; therefore, once said request for the opinion of Corte Plena had been submitted and a negative response had been given, approval of the bill would have required 38 votes. It notes that, in the case under study, at Ordinary Plenary Session N°163 of the Plenario Legislativo, held on April 19, 2018, when the bill was given its Second Debate, it was approved by a slim margin of 34 votes in favor and 9 against, thereby failing to comply with the constitutional mandate. It adds that another essential aspect of the law-making process is the manner and timing in which institutional consultations must be carried out when, by legislative mandate, this requirement — which is not merely formal but substantive and a condition of validity for the new legislation under formation to take effect in accordance with the Constitución Política — must be fulfilled.
It further adds that, despite the existence of a constitutional obligation to consult Corte Plena, the fact is that both the text ultimately consulted and the timing of the consultation (after an affirmative report (dictamen afirmativo) had been approved by the Special Committee) also violated the democratic principle, since the bill submitted to Corte Plena was published in the Diario Oficial at a later date and was not even the text of the bill itself, but rather a majority affirmative report of the Special Committee, which underwent substantial modifications before being approved on First and Second Debate. It states that the Special Committee processing bill N° 19.922 requested an opinion from the Corte Suprema de Justicia on the proposed reform, through official letter AL-20035-OFI-0043-2017 dated July 31, 2017; however, said consultation was on a majority affirmative report different from the bill that was ultimately approved on First Debate at Extraordinary Plenary Session N°14 of the Plenario Legislativo on October 30, 2017. It recalls that article 126 of the Reglamento de la Asamblea Legislativa provides:
"When a committee is deliberating a bill or approves a motion that, pursuant to articles 88, 97, 167, and 190 of the Constitución Política, must be consulted, the chair shall carry out the corresponding consultation. Consultations by committees shall be deemed to have been made by the Asamblea itself and, where applicable, the provisions of article 157 of this Reglamento shall apply." (emphasis in the original memorial).
It states that, in accordance with the foregoing, the Chair of the Special Committee was required to order the mandatory consultation with the Corte Suprema de Justicia and to indicate that it was being submitted pursuant to article 167 of the Constitución Política and in accordance with articles 126 and 157 of the Reglamento; however, that constitutionally mandated consultation was never submitted. It indicates that, through official letter AL-20035-OFI-0043-2017 dated July 31, 2017, the Special Committee submitted an institutional consultation, without any formal basis, on the majority affirmative report; but that procedure cannot substitute for the mandatory constitutional consultation. It states that, in response to the institutional consultation submitted by the Asamblea Legislativa, the reply provided by the Secretary General of the Corte Suprema de Justicia through official letter N° SP 252-17 dated August 10, 2017, clearly established that the majority affirmative report reforming the Ley Orgánica del Poder Judicial did contain provisions affecting the organization or functioning of that Branch, and therefore a negative report was rendered. It indicates that, in its conclusions and to the extent relevant, the following was stated:
"It is considered that this bears on the structure and functioning of the Poder Judicial, given that it directly affects the life plans of all judicial employees, since it entails a reduction in retirement benefits even for those who have met all of the legal requirements to fully enjoy their retirement right (derecho jubilatorio). This includes payment of the required contributions; payment of income tax; contributions to both the Fondo de Jubilaciones y Pensiones del Poder Judicial and the system of the Caja Costarricense del Seguro Social, as well as a series of other charges which, if the text as proposed by the reporting Committee were to be approved, would amount to confiscatory measures.
It cannot be overlooked 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 retention of a trained and qualified staff within the institution; and the reduction of retirement benefits constitutes a disincentive for the recruitment of highly qualified professionals who, taking into account the economic outcome of a future assessment, would prefer to pursue their professional careers in another field of employment.
The judicial career (carrera judicial), prosecutorial career, Public Defender career, and the careers of general staff are all affected — staff who, bearing salary burdens four times greater than in other regimes, would receive a lesser benefit.
Furthermore, the renewal of staff able to remain is affected. The Poder Judicial would be left with aging officials who continued working solely because of the reduction their income would suffer upon retirement.
The judicial workforce would find itself at a crossroads: although there is both the desire to exercise that right and the motivation to retire and rest, its members are placed in a position where they must assess their financial situation, likely forcing them to seek new sources of income to cover their ordinary expenses or those acquired prior to retirement, as well as expenses that naturally arise from age. This process also has its restrictions: from a legal standpoint, the Ley Orgánica del Poder Judicial prohibits retirees from taking other employment, and socially it is a reality that, after the age of forty, there are practical limitations with respect to re-entering the labor market. This is closely related to the structure and functioning [of the institution], as it reduces the Poder Judicial's competitiveness in the labor market, to the detriment of the quality of the Administration of Justice. Salaries for these positions are reduced by contributions to the retirement and pension system (régimen de pensiones y jubilaciones), which are four times higher than contributions to other systems. This hampers the recruitment of human resources and undermines the public service.
Furthermore, the regulation of the Fondo de Jubilaciones y Pensiones del Poder Judicial must not be assessed solely from an economic perspective, as we are dealing with fundamental rights—non-waivable—associated with every worker, who during their working years contributed at a rate higher than the general rate to a system with the expectation of having a pension that would allow them to meet their needs and enjoy their retirement years peacefully and with quality of life alongside their loved ones.
The imposition of this new tax burden affects vulnerable population groups—such as older adults—harming the weakest segment, which is precisely the one that requires greater protection from the State.
The proposed tax is imposed at a moment in the retired person's life when they are most vulnerable, being near or already of old age (tercera edad). It cannot be overlooked that it is at this stage that people generally require more medical care, specialized attention, and the like, and that during their working lives—in varying degrees depending on the income received—they contributed to the system with the expectation of having the resources needed to face this process; should this Bill be approved, that life plan (plan de vida) would be cut short.
This would cause a significant social impact, as people in retirement unexpectedly lose a substantial portion of their income while maintaining a pre-established level of expenses, which produces repercussions not only financial but also for their health—contrary to the intended purpose of a pension system, which is to provide sufficient income during post-working life. In this context, it is important to recall that in many cases, the retired person continues to provide care and financial support to other older adults or minors.
Taking into account the observations raised regarding the Bill processed under expediente 19922 (20035), which are grounded in and supported by the actuarial study conducted by the IICE, and based on the powers conferred by Articles 167 of the Constitución Política and 59, paragraph 1) of the Ley Orgánica del Poder Judicial, it is determined that the consulted text does in fact affect the structure, organization, and functioning of the Poder Judicial, and accordingly the Asamblea Legislativa must take into account what the Corte Plena has stated regarding each aspect of the Bill under consultation, unless a qualified majority (mayoría calificada) is available to depart from that binding opinion.
This has been communicated to that Legislative Branch in other consulted bills, such as those reviewed in Corte Plena sessions numbered 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 note the impact of the bills on the internal structure of the Poder Judicial.
"In conclusion, with respect to the Bill processed under expediente n° 19922, a negative opinion must be issued, as it affects the structure, organization, and functioning of the Poder Judicial" (emphasis in the original brief).
It is submitted that violations in the procedure for enacting Ley 9.544 are confirmed when what occurred during the processing of legislative expediente N°19.922 is compared with the minutes of the Corte Plena, yielding the following sequence of facts:
It is further stated that another relevant aspect of the procedure followed by the Asamblea Legislativa in processing bill N° 19.922 is that the Asamblea Legislativa's own legal advisory office, upon issuing the Integrated Legal-Economic Report on the substitute text for Expediente N° 19.922, N°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 conducting the mandatory consultation (consulta preceptiva) with the Corte Plena pursuant to the mandate of Constitutional Article 167, and warned that, should such consultation be made and result in a negative opinion, the subsequent vote in the Plenario Legislativo would require 38 votes out of the total membership. The following was specifically stated:
"... LEGISLATIVE PROCEDURE Vote In accordance with Article 119 of the Constitución Política, this bill requires an absolute majority of the votes present for its approval.
It must be noted that, pursuant to Constitutional Article 167, if the deputies depart from the opinion of the Corte Suprema de Justicia, approval of this bill will require a vote of two-thirds of the total membership of the Asamblea.
Delegation This bill, in accordance with Article 124 of the Constitución Política, may NOT be delegated to a Committee with Full Legislative Authority. The amendment proposed to Article 243 of the Ley Orgánica del Poder Judicial establishes the income tax applicable to active workers and retirees, which is deducted from the resulting gross income after all other mandatory statutory deductions have been applied.
Consultations 1. Mandatory ° Corte Suprema de Justicia 2. Optional ° Procuraduría General de Costa Rica ° Superintendencia de Pensiones ° Ministerio de Hacienda ..." (emphasis in the original brief).
It is further argued that the technical recommendation went further and warned that, within the legislative procedure, it was necessary to consider that, in the event of a vote in plenary on bill N° 19.922, pursuant to Article 119 of the Constitución Política, an absolute majority of the votes present would be required; however, pursuant to Constitutional Article 167, if the deputies were to depart from the opinion of the Corte Suprema de Justicia, an aggravated vote of two-thirds of the total membership would be required. It is argued that, with respect to expediente N°19.922, the bill was voted upon in First Reading in extraordinary session N°14 of the Plenario Legislativo of October 30, 2017, having been approved with only 31 votes in favor; and in the Second Reading (Segundo Debate) in ordinary session N°163 of the Plenario Legislativo of April 18, 2018, in which the bill was approved with 34 votes in favor and 9 against, a motion for review of the prior vote also having been rejected on that occasion.
It is argued that, pursuant to the provisions of Constitutional Article 167 and Article 157 of the Reglamento of the Asamblea Legislativa, approval in Second Reading of the bill under the noted expediente—which concerned the amendment of Title IX of the Ley Orgánica del Poder Judicial—required a qualified vote (votación calificada), that is, at least 38 votes out of the total membership of deputies; it is therefore evident that in the process of enacting the law, the constitutional rule set forth in Article 167 of the Constitución Política was violated, which, in this view, means that the unconstitutionality action (acción de inconstitucionalidad) must be declared well-founded.
The petitioner considers that the exception in Article 208 bis of the Reglamento has become a rule of legislative procedure, since whenever a majority so decides, a bill could be subjected to an exceptional procedure, which in the petitioner's view creates legal uncertainty (inseguridad jurídica) and a breach of the democratic principle (principio democrático) of constitutional rank established as a rule to be respected by legislators. The petitioner adds that, in bill N°19.922, by a two-thirds majority of its members, the Asamblea Legislativa decided to establish a special procedure for its processing under Article 208 bis, and defined a series of rules that had to be followed. The petitioner argues that, since an exceptional — rather than a general — procedure was being applied, strict compliance with the provisions of the motion to fast-track the bill reforming the Poder Judicial pension regime was a sine qua non condition for respecting the principles of legal certainty (certeza jurídica), democratic participation, and amendment; that is, once the motion to fast-track a bill was approved, all Assembly members should have adhered to limited participation and exact compliance with the procedural steps agreed upon as an exception under the cited Article 208 bis — but, as can be observed in the processing of the bill, this did not occur, and certain procedures were violated, such as the publication of substitute text (texto sustitutivo) motions and the deadlines for issuing a committee report on the bill, among others.
The petitioner clarifies that it was not possible to apply the procedure established in Article 208 bis of the Reglamento to bill N°19.922, because it was evident that a legislative reform (reforma legislativa) was being enacted that affected the organization or functioning of the Poder Judicial, which in turn meant that, in the event of opposition from the Corte Plena, a two-thirds vote of the total membership of the Asamblea would be required; nonetheless, the Asamblea Legislativa, at Ordinary Session of the Plenario Legislativo N°37 of June 30, 2016, established the procedure to be applied for processing bill N°19.922 pursuant to Article 208 bis) of the Reglamento, defining for that particular case a series of restrictions and limitations, both for the Assembly members and for the institutions consulted, as described below:
"Procedural motion by various Assembly members [diputados and diputadas]: So that, in accordance with the provisions of Article 208 bis of the Reglamento de la Asamblea Legislativa, the following special procedure shall apply to Expediente Legislativo N°19.922, 'Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa' (...)
(...)
h- If during the committee proceedings a substitute text motion is approved, or when the committee agrees on changes that substantially modify the bill, the Committee Chair (Presidencia de la Comisión) shall request the Directorio Legislativo to order its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity, and consideration of the bill shall be suspended, also proceeding [procediérrelose (sic)] to carry out the corresponding consultations. If, within eight business days, no response is received to the mandatory consultations referred to in this subparagraph h), the consulted body shall be deemed to have no objection to the bill.
(...)
4- ORDINARY AND EXTRAORDINARY SESSIONS:
(...)
3- Substantive Motions: a.- Substantive motions shall be accepted only when submitted to the Directorio during the first two sessions of deliberation on the bill. In the second of those sessions, Assembly members may submit motions until the hour at which that session concludes. The Chair shall notify Assembly members of such motions by whatever means the Chair deems most appropriate.
b- The Presidencia of the Asamblea Legislativa shall determine the admissibility of substantive motions pursuant to the rules set out in this motion. The Presidencia shall likewise determine whether they are to be debated jointly, grouping them by Assembly member. The Presidencia shall also group for debate in a single proceeding motions that are identical or reasonably equivalent but submitted by different Assembly members; in such case they shall be grouped by their content, regardless of who submitted them. As a general rule, each Assembly member may submit only one substantive motion per article, whether to amend, add to, or delete it in its entirety. For 'complex' articles, the rules set out below shall apply. If the article contains several amendments, abrogations, or additions, one motion may be submitted per amendment, abrogation, or addition…
c.- When one or more Assembly members submit identical or reasonably equivalent motions, they shall be admitted by the Presidencia so that they may be debated in a single proceeding, although voted on individually..." (emphasis in the original brief).
The petitioner adds that, based on the procedure established for processing bill N°19.922 by application of Article 208 bis of the Reglamento, one can conclude that the participation of Assembly members, the Poder Judicial, and other actors was restricted, and that although rules were established for the publication of the bills, those rules were not complied with. The petitioner considers that the procedure approved by the Article 208 bis motion for processing bill N°19.922 is so restrictive that it gives the impression that the political power the Asamblea Legislativa wished to exercise was above the technical, rational, and constitutional criteria demanded by this type of reform, especially considering the inherent independence of the Poder Judicial, as its essence emanates from Article 9 of the Political Constitution. The petitioner argues that this is fully confirmed when, in the affirmative majority committee report of July 27, 2017, the Special Committee charged with issuing a committee report on the bill stated, in the last paragraph before the recommendation to the Plenario Legislativo, 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 proper administration of the retirement and pension scheme (régimen de jubilaciones y pensiones) of the Poder Judicial; this committee renders an AFFIRMATIVE MAJORITY COMMITTEE REPORT...".
The petitioner states that, in this regard, it is clear that the application of an expedited procedure via Article 208 bis) of the Reglamento is, in the petitioner's view, contrary to the Political Constitution, since the very text of Article 208 bis) could be unconstitutional when used for processing a bill such as N°19.922. The petitioner notes that one cannot forget that the Sala Constitucional itself has stated this in various rulings (fallos), as follows:
"The democratic principle. Our minority vote agrees with the petitioner, on the same grounds already expressed in the dissenting votes (votos salvados) appended to judgment number 2005-398, 2008-07687, and 2007-2901 of 17:30 hrs. of February 28, 2007, starting from the democratic principle, respect for which is essential for any examination of the conformity or nonconformity with the Constitution of any rule or act. On this matter, this Court has stated, 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. Since perfect democracy is an unattainable ideal, the democratic principle constitutes the benchmark that makes it possible to deduce the degree of proximity that a given society achieves, at a given historical moment, with respect to the ideal and its vocation to approach it as closely 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 foundation of our political system. The latter encompasses aspects such as the legitimacy of the means used to designate the various representatives and — no less importantly — the ability to oppose, through the use of legitimate means, the majority will on the part of the groups representing minorities. Based on the foregoing observations, one may conclude that violations of procedure that constitute injuries to the democratic principle are unconstitutional, as that principle is the unavoidable direction of parliamentary activity. Likewise, legislative procedures that, by being accelerated or rushed, provoke debates devoid of a deliberate process of quality and reflection — one that also lacks a broad projection of legislative activity, as guaranteed by Article 117 of the Political Constitution — constitute substantial infringements.
Furthermore, the omission of publication and the failure to carry out the mandatory consultations established by the Constitution have been considered substantial procedural defects. Regarding the first aspect, since the Asamblea Legislativa is a representative body of the national community, the publicity of parliamentary proceedings is essential, for sovereignty resides in the people and Assembly members are merely their representatives (Article 105 of the Constitution); accordingly, its activity must necessarily reach the entire community, to such an extent that some specialists in constitutional law define it as a body of publicity' (see judgment number 2012-002675 of 11 hours and 52 minutes of February 24, 2012) (emphasis in the original brief).
It further states that it appears in the legislative file (expediente legislativo) that the Special Committee (Comisión Especial) issued a majority affirmative committee report (dictamen afirmativo de mayoría); however, prior to its approval, a substitute text (texto sustitutivo) was introduced that was neither analyzed nor broadly discussed in the Committee session of July 27, 2017, at which the report was issued with the participation of the legislators present, and therefore, in accordance with the motion (moción) approved to process said file via Article 208 bis), it was required that the proceedings be suspended and the substitute text be published anew in order to safeguard the constitutional principle of Publicity (Principio Constitucional de Publicidad) and the Democratic Principle (Principio Democrático), so as to allow for the participation of interested parties. It further adds that the corresponding mandatory institutional referrals (consultas institucionales preceptivas) should likewise have been submitted anew, in accordance with what is established in subsection h) of point 2) of the procedure defined by the Plenary (Plenario), in order to comply with the procedure governed by constitutional Article 167.
It states that, for the foregoing reasons, the extraordinary session of the Special Committee held on Monday, July 27, 2017, is tainted by nullity (viciada de nulidad), since the bill was—technically and legally—in suspension until the text of the bill was published in Diario Oficial La Gaceta—which never occurred—, given that what was ultimately published was the majority affirmative committee report in the Supplement (Alcance) of Diario Oficial La Gaceta N° 189 of August 4, 2017, thereby violating what is set forth in subsection h) of point 2) of the fast-track (vía rápida) procedure, Article 208 bis), approved by the Legislative Plenary (Plenario Legislativo)—session N° 37 of June 30, 2016—, and that its non-application constitutes a direct violation of legislative due process (debido proceso legislativo), which is likewise constitutionally protected. It states that, in this regard, the Sala Constitucional established in Sentencia 2002-03458 that:
"The publication in La Gaceta of the bills discussed in the Asamblea Legislativa is an instrument that can foster popular participation in the adoption of major national decisions, and also constitutes a guarantee of transparency in the law-making function." It further adds that, in light of the foregoing, the following aspects are highlighted as the fundamental grounds for a declaration of unconstitutionality of Ley N° 9.544, on account of defects in the proper legislative procedure, violation of the democratic principle, the right of amendment (derecho de enmienda), and the principle of publicity in the formation of laws, in the following terms:
It states that the principle of publicity is inherent to the concept of representation and tends to establish channels of communication between representatives and those they represent, allowing the governed to follow the parliamentary process, not only with regard to oversight of procedural legality but also in the protection of the fundamental values and interests of the community; it therefore allows citizens (administrados) to exercise oversight over procedures for the observance of fundamental values and transparency. It argues that, in that regard, by establishing a special, different, exceptional, and more expedited procedure, the Special Committee and the Legislative Plenary were at all times required to conform, adhere, and restrict themselves to compliance with that previously designed special procedure, and to avoid to the greatest extent possible any infringement of the principles of legal certainty (seguridad jurídica) and the democratic principle.
It states that, in line with this reasoning, if the substitute text of bill N° 19.922 reported on by the Special Committee in its session of September 13, 2016, was not published in Diario Oficial La Gaceta prior to its approval—as was established in the file of the optional legislative referral (consulta legislativa facultativa) submitted by certain legislators (expediente judicial N° 17-017148-0007-CO)—, it is clear that a procedural defect exists that runs directly counter to the constitutional principle of publicity. It notes that, in this regard, sentencia N° 2018-5758 of 15:40 hours on April 12, 2018, stated:
"From the study of the legislative history (iter legislativo), it has been established that the substitute text of the bill under consultation, approved by the Special Committee in its session of September 13, 2016, was not published, as argued by the consulting legislators and duly corroborated by the evidence submitted by the Executive Director of the Asamblea Legislativa on March 12, 2018. Furthermore, pursuant to the rules set by the special procedure approved by the Asamblea Legislativa for file number 19.922, in Ordinary Session N° 37 of June 30, 2016, based on the provisions of Article 208, bis, of the Reglamento de la Asamblea Legislativa, that publication was mandatory, as clearly follows from subsection h, of point 2, 'Mociones de Fondo,' of the procedure in question, which reads verbatim: 'h.- If, during the committee consideration of the file, a motion for a substitute text is approved, or when the committee agrees to changes that substantially modify the bill, the Committee Chair (Presidencia de la Comisión) shall request the Legislative Directorate (Directorio Legislativo) to agree to its publication in Diario Oficial La Gaceta for the purpose of safeguarding the Constitutional Principle of Publicity, and consideration of the bill shall be suspended...' (emphasis added by the brief)." It further adds that, in the same vein, sentencia N° 2002-003671 of 11:19 hours on April 19, 2002, stated:
"...The foregoing must also take place in an atmosphere of publicity and transparency that allows individuals and interest groups to adequately learn about the initiatives under discussion, and to appear before their representatives to demand that they fulfill their mandate effectively. This climate of dialogue and publicity must characterize parliamentary action in all its dimensions, and becomes indispensable in cases of reforms or the production of complex, extensive, or particularly significant norms for the life of the inhabitants..." (emphasis added by the brief).
It states that this omission alone—the failure to publish the bill approved by the Special Committee—violates the constitutional principle of publicity and, therefore, entails the unconstitutionality of Ley N° 9.544 on account of defects in the abbreviated formation process; to allow these errors to pass unnoticed, on the grounds that they are not relevant and therefore do not affect the constitutionality of the resulting law, is to permit legislation to be enacted without transparency and in plain disregard of the principle of publicity. It further adds that, with respect to the publication of bills in Diario Oficial La Gaceta, the Sala Constitucional, in Sentencia N° 2002-03458 of 15:54 hours on April 16, 2002, stated the following:
"The publication in La Gaceta of the bills discussed in the Asamblea Legislativa is an instrument that can foster popular participation in the adoption of major national decisions, and also constitutes a guarantee of transparency in the law-making function." It argues that, in consonance with the claim being advanced, the Sala Constitucional has stated in similar situations:
"The foregoing has already been upheld by this Chamber upon answering the Optional Legislative Referrals on Constitutionality (Consultas Legislativas Facultativas de Constitucionalidad) submitted with respect to the approval of the bill known as 'Ley de Solidaridad Tributaria,' processed under legislative file No. 18.261, on which occasion, by Sentencia No. 2012-004621 of 16:00 hours on April 10, 2012, it stated: / This Constitutional Tribunal notes that when the Asamblea Legislativa, through a procedural motion (moción de orden) under Article 208 bis of the Reglamento, creates a special procedure, the application and observance thereof must be absolutely rigorous and strict. The special procedure created through Article 208 bis is, as such, an exception to the rules of ordinary legislative procedures that is consented to by a qualified majority, but, as such, it shall always remain 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 Tribunal in Voto No. 398-2005 of 12:10 hrs. of January 21, 2005) and the democratic principle. Consequently, in the face of a special and fast-track legislative procedure, the previously established deadlines, stages, and requirements must be subject to a restrictive and rigorous interpretation, in that the permissible margin of flexibility vis-à-vis ordinary procedures, through expansive interpretations, decreases notably in order to avoid an exception to the exception and, in general, a departure from the legislative path (iter) created, exceptionally, by a supermajority (mayoría agravada)" (see sentencia 2012-004621 of 16:00 hours of April 10, 2012).
It states that the violations of the abbreviated legislative procedure approved by the Asamblea Legislativa do not end there, as the legislative file reveals that the text of the bill whose substitute text was approved in First Debate (Primer Debate) by the Legislative Plenary—with substantial changes—on October 30, 2017, was published belatedly in Alcance 268 to Gaceta Digital N° 212 of November 9, 2017, while a legislative referral had already been formulated and filed with the Sala Constitucional on November 1, 2017, as noted in Sentencia N° 2018-5758, which states that:
"From legislative file N° 19.922, it is apparent that the substitute text approved in First Debate by the Legislative Plenary on October 30, 2017, was published in Alcance 268 to Gaceta Digital N° 212 of November 9, 2017, whereas this referral was filed on November 1, 2017. That is to say, not only was said text published belatedly, after having been approved in First Debate, but at the time of the filing of the referral before this Chamber it had not yet been published, thereby also producing another violation of the principle of publicity; and, consequently, of an essential procedural step in the legislative procedure..." (emphasis added by the brief).
It argues that, in that state of affairs, it fully shares the precedent of the Sala Constitucional in judgment N° 2018-5758 of 3:40 p.m. on April 12, 2018, to the effect that the constitutional principle of publicity (principio de publicidad) requires that a substitute text (texto sustitutivo) of a bill be published before its approval at First Debate (Primer Debate), since doing so afterward likewise violates the democratic principle (principio democrático) by preventing citizens from knowing the substitute text of the bill prior to its approval, especially when an abbreviated (procedimiento abreviado), special, and expedited procedure had been established to process the bill. It states that, for this reason, it welcomes the statement made in the aforementioned judgment N° 2018-5758:
"As indicated in the majority opinion, the substitute text in the Committee, approved on September 13, 2016, was not published. Although the text was subsequently approved by the Committee on July 27, 2017 and published on August 4, 2017; and although the text approved at First Debate was later published as late as November 9, 2017. In this context, it cannot be ignored that the motion (moción) governing the approval procedure of the bill under review states that publication is required in the event that there is a substitute text. Therefore, in this hypothesis, this constituted a transgression of the provisions of the motion governing the procedure (moreover, since it involves the application of Art. 208 bis, such motion operates as regulatory norms for that specific bill), given that any type of regulated publication is an essential requirement. Because this involves an abbreviated legislative procedure, the principle of publicity of the norms discussed or approved must be respected with greater rigor.
The weakness of an abbreviated procedure requires a more rigorous application of the publicity requirement, without admitting validation with respect to a requirement as important as publicity. On the other hand, the publication of bills is the only way in which the activity of the people's representatives reaches the entire population. It is the projection of parliamentary activity outward, operating as a constitutional guarantee that prevents parliament from acting with its back to the citizenry. Unlike other matters in which I have considered that the failure to publish was not an essential defect, in this case I consider that it is, for three reasons: because the norm regulating the procedure so provides, because this involves a substitute text, and also because the failure to publish prevented the population from knowing the text that was being discussed at that time, further preventing citizens from making representations regarding what parliament intended with the bill.
In this case, there is also no dispute as to whether the publication of provisions that did not alter the essence of the bill was omitted; rather, in this matter, publicity was entirely omitted during the development of an abbreviated legislative procedure, which, as I stated, entirely undermines the constitutional principles governing parliamentary procedure" (emphasis in the brief).
It states that even more concerning is the fact that this was not a single violation but rather several omissions in the publications ordered by the Plenario Legislativo itself when it approved the motion to process expediente N° 19.922 on the basis of the "express" procedure under Art. 208 bis of the Reglamento, which provided, Point 2) subparagraph h):
"h- If during the consideration of the expediente in its committee stage a motion for a substitute text is approved, or when the committee agrees on changes that substantially modify the bill, the Chair of the Committee shall request the Directorio Legislativo to agree to its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity, and consideration of the bill shall be suspended, also proceeding (sic) to conduct the corresponding consultations. If, after eight business days have elapsed, no response has been received to the mandatory consultations referred to in this subparagraph h), it shall be understood that the body consulted has no objection to the bill" (emphasis in the brief).
It considers that the fact that the Plenario Legislativo defined a special procedure to process an amendment to the Ley Orgánica del Poder Judicial in Sesión Ordinaria N° 37 of June 30, 2016, and that the rules for publishing the texts were not complied with, constitutes a clear violation of the principle of legal certainty (principio de seguridad jurídica) and the democratic principle, since that would be the only way for the legislators to have known—in advance and with sufficient prior notice—the procedure to which they were to be bound and thereby exercise the corresponding mechanisms of participation and oversight. In addition to the foregoing, it argues that the failure to publish the substitute text in the processing of expediente N° 19.922 directly affected the active, retired, and pensioned personnel of the Poder Judicial, especially considering that the initial bill from which the discussion of the reform to Title IX of the Ley Orgánica del Poder Judicial originated was a text submitted by various organizations of the Poder Judicial, as was expressly acknowledged by the President of the Asamblea Legislativa, Álvarez Desanti, in paragraph 7 on page 18 of the aforementioned Acta Ordinaria N° 37 of June 30, 2016, that omission thereby cutting off any participation by legislators and citizens in defense of their interests. It states that, specifically, at that session, the President of the Asamblea Legislativa stated:
"...Excuse me, I clarify that the base text will be that of expediente 19.651, which is incorporated by a motion for a substitute text signed by all the legislative caucuses (fracciones), so that at the moment the processing of Art. 208 bis of expediente 19.922 begins, the motion for a substitute text that uses as its basis the bill that had been submitted by various organizations of the Poder Judicial will be considered." It concludes that this demonstrates that the appetite of the Asamblea Legislativa to modify the Régimen de Jubilaciones y Pensiones del Poder Judicial was greater than compliance with the due legislative process (debido proceso legislativo) and respect for the constitutional norms underpinning the principle of publicity and the democratic principle, and that this conduct thereby gives rise to the unconstitutionality of Ley N° 9.544.
It states that, in that regard, Ley N° 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 of the ordinary contribution from 11% to 13% will allow the fund to be actuarially balanced; nor does any actuarial or economic study exist demonstrating that the burdens imposed on pensioners and retirees are proportional or reasonable in relation to the retirement right that was declared in favor of the beneficiaries, but rather that these constitute measures that are confiscatory in nature (confiscatorias). It argues that in the study conducted by the firm Melínsky, Pellegrinelli y Asoc. S.A., entitled "Informe Final de la Valuación Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial al 31.12.2011," absolutely nothing is mentioned about a special, solidarity-based, and redistributive contribution, and therefore it could not validly be stated that said actuarial study served as the basis for establishing a special solidarity contribution.
Furthermore, it asserts that in the study conducted by the Universidad de Costa Rica, entitled Project: "Estudio Actuarial del Fondo de Jubilaciones y Pensiones del Poder Judicial, Producto 6 Informe Final, Recopilación e informe final: Conclusiones y Recomendaciones, with date July 4, 2017, Ciudad Universitaria Rodrigo Facio," the following is stated in relation to the special, solidarity-based, and redistributive contribution:
"... Concerns regarding the confiscatory nature (confiscatoriedad) of a solidarity contribution of 50% on the amount by which the retirement benefit exceeds the ceiling of 4 million colones.
Before making decisions on this matter, it is first necessary to study whether the solidarity contribution actually gives rise to confiscatory issues. This study must be conducted on the basis of actual retirement or pension amounts at the current time, according to the data available to the Poder Judicial.
Second, it is necessary to conduct a study on the existing case law (jurisprudencia) regarding the confiscatory nature that may arise from the proposed solidarity contribution. In this regard, it would be advisable to investigate the experience and judicial decisions on similar matters in other retirement and pension schemes. ...
In any case, to prevent the issue of confiscatory nature from becoming an obstacle to the necessary reform of this scheme, it may be established that the solidarity contribution be applied, together with the other regulatory deductions (aporte regular sobre beneficios, impuesto de renta, cuota al seguro de salud de la CCSS), without the total deductions exceeding the equivalent of 50% of the gross benefit of the retiree or pensioner." It reiterates that no technical study exists recommending the establishment of the special, solidarity-based, and redistributive contribution as a means of improving the actuarial situation of the scheme in the long term; nor does any technical basis exist to determine the percentages or whether these percentages or established parameters are reasonable and proportional, as parameters of constitutionality, or whether, on the contrary, the application of said contribution becomes confiscatory in nature.
It states that the only thing that exists is a kind of "parliamentary trick," recommended by the Universidad de Costa Rica to camouflage the special solidarity contribution within the forest of total deductions, so that the confiscatory effect goes unnoticed. It states that, in this regard, the Chamber itself has stated categorically that the absence of studies that do not adequately describe the factual situation or the technical feasibility of a measure adopted by the Asamblea Legislativa does not constitute a substantive problem but rather a procedural one, which stands as an essential, non-remediable (no subsanable) procedural defect, as effectively occurs—in its view—in the case of the special, solidarity-based, and redistributive contribution, as outlined in judgment N° 2014-18836 of 4:20 p.m. on November 18, 2014:
"In this regard, it should be noted that, contrary to what the petitioners argue, the lack of prior technical studies from which the bill in question suffers is not a substantive problem, 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 judgments on the subject, this Chamber stated:
"The bill under discussion lacks the technical studies needed to establish not only the factual situation, but also its technical feasibility, as well as the reasonableness and proportionality that serve as parameters of constitutionality — principles that every legal norm must observe, especially when public resources are being affected, as is the case here.
The foregoing leads this Tribunal to agree with the position of the consulting members of the Legislative Assembly, in the sense that the legislative file does not contain a technical study that analyzes and determines the possibility of reducing environmental protection in application of the principle of objectification of environmental oversight (principio de objetivación de la tutela ambiental), despite the existence of both institutions and experts in environmental matters who could have prepared the technical study that is conspicuously absent from the bill.
In light of the foregoing, it is appropriate to answer the consultation by identifying the existence of essential constitutional defects (vicios esenciales de inconstitucionalidad) in the processing of the bill, pursuant to the terms of Article 101 of the Ley de la Jurisdicción Constitucional." He states that what can be drawn from the study by the UCR cited in the affirmative majority opinion dated July 27, 2017, is a concern that this item — the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) — may be confiscatory and irrational, with the indication that it could be applied "… provided it does not result in a reduction exceeding 50% of the pension amount together with the other deductions already applied to pensions and retirement benefits…." He adds that, in accordance with the foregoing, Ley 9.544, through taxation, authorizes the confiscation of up to 55% of the pension amount currently being paid, without the existence, at the time of its enactment, of technical studies supporting the reasonableness and proportionality of the measure — which means that, from a constitutional standpoint, the challenged law is unconstitutional for failing to comply with the parameters required in the legislative process that the Constitutional Chamber has deemed indispensable.
He 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 means chosen bear a real and substantial relationship to the law's object; a distinction is thus drawn between technical reasonableness (razonabilidad técnica), which is, as stated, the proportionality between means and ends; legal reasonableness (razonabilidad jurídica), or conformity with the Constitution in general, and in particular with the rights and freedoms recognized or implied by it; and finally, reasonableness of the effects on personal rights (razonabilidad de los efectos sobre los derechos personales), in the sense of not imposing on those rights any limitations or burdens other than those reasonably derived from the nature and legal regime of the rights themselves, nor any greater than those indispensable for those rights to function reasonably in the life of society.
He argues that, in order to determine whether the norm effectively infringed upon substantive due process (razonabilidad) and is therefore unconstitutional, the appropriate course is to analyze whether the provision is subordinate to the Constitución Política, whether its provisions are suited to the objectives it seeks to achieve, and whether it provides equitable solutions with a minimum of justice (see, in that regard, judgment N° 2001-11543 of 15:00 hours of November 7, 2001).
He adds that, according to the Real Academia, the verb "establecer" carries, among others, the following meanings: "to found, to institute, to order, to mandate, to decree"; the word "contribución" is defined by the RAE as "a quota or amount paid for some purpose, and principally that which is levied to cover the expenses of the State"; and finally, the word "nacionales," while not defined as such, leads to the term "nacional," which the RAE defines as "belonging or relating to a nation." He indicates that, from a reading of Article 121, paragraph 13), it follows with utter clarity that the original legislature granted the Asamblea Legislativa the power to "establish" "taxes" and "contributions" of a "national" character; the question he therefore considers appropriate to ask is whether imposing a "special contribution" falls within the powers of the Asamblea Legislativa. He argues that, to hazard a quick answer, it would appear not, since the special contribution to which pensioners of the Fondo de Jubilaciones y Pensiones del Poder Judicial are subjected is not national in character — it does not affect all citizens of the State — but rather, in a singular fashion, affects a special, defined, and particular group of persons who are pensioners or retirees under the Poder Judicial's pension system.
He notes that, in support of the foregoing, reference is made to the judgments of the Sala Constitucional itself, which has repeatedly affirmed that the "Power to Tax" (Poder Tributario) is a sovereign power of the State by which it may demand contributions from persons or property and grant exemptions, and that said power recognizes no limitations other than those arising from the Constitución Política itself (see judgments of the Sala Constitucional 6455-1994 of 18:18 hours of November 2, 1994; 5398-1994 of 15:27 hours of September 20, 1994). He states that, more specifically, in judgment N° 2004-5015 of 14:53 hours of May 12, 2004, the Sala Constitucional held:
"From that norm, which develops the principle of statutory reservation (reserva de Ley) set forth in Article 121, paragraph 13 of the Constitución Política, with respect to the establishment of 'national taxes and contributions,' it is understood that it is exclusively the Asamblea Legislativa that, through the formal legislative process, may establish the essential elements of national taxes: the taxpayer (sujeto pasivo), the tax base (base imponible), the taxable event (hecho generador), and the rate of the levy. The taxpayer is the party obligated to fulfill tax obligations (Article 15 of the Código de Normas y Procedimientos Tributarios); the taxable event is the circumstance established by law to define the tax, the occurrence of which gives rise to the tax obligation (Article 31 ibídem); the tax base is the amount upon which the tax liability will be calculated; and the tax rate is the percentage of the tax base that must be paid by the taxpayer.
With respect to the principle of statutory reservation in tax matters, this Chamber defined it in judgment number 4785-93, of eight hours and thirty-nine minutes of the thirtieth of September of nineteen ninety-three…" He argues that both the power to tax and the principle of statutory reservation are limited, as regards the possibility of establishing national taxes and contributions, by the text of the Constitución Política itself, subject also to tax principles that must likewise enjoy constitutional protection, such as:
He adds that, acknowledging that the power of the Asamblea Legislativa is limited to national contributions and that these relate to the carrying out of public works, it is plainly beyond the competence of the Asamblea Legislativa to establish special, solidarity-based, and redistributive contributions on pensioners or retirees of the Poder Judicial, as this is contrary to Article 121:13) of the Constitución Política. He indicates that, in addition to the foregoing, it must be emphasized that sovereign taxing power — that is, the ability to demand contributions from persons, which recognizes no limitations other than those arising from the Constitución Política itself (judgment of the Sala Constitucional 6455-1994 of 18:18 hours of November 2, 1994) — implies that the Asamblea Legislativa has no taxing authority to impose contributions that are not national in character; in other words, under Article 121, paragraph 13 of the Constitución Política, "special, solidarity-based, and redistributive contributions" could not be established for a particular special regime, since this, in his view, is contrary to the competence granted by the original legislature — the special contribution regulated in Article 236 bis of Ley N° 9.544 affects only a group of pensioners within a particular regime, which also breaches the principle of tax uniformity (principio de isonomía tributaria), in the terms defined by the Sala Constitucional in judgment N° 6.455-1994 of 18:18 hours of November 2, 1994, which states:
"The sovereign power of the State to demand contributions from persons or property within its jurisdiction, or to grant exemptions, recognizes no limitations other than those arising from the Constitución Política itself. This power to levy is the power to enact legal norms from which there derives, or may derive, the obligation to pay a tax or to respect a tax limit; and among the constitutional principles of taxation are the Principle of Legality or Statutory Reservation, the Principle of Equality or Uniformity (Isonomía), the Principle of Generality, and the Principle of Non-Confiscation. Taxes must emanate from a law of the Republic, must not create discriminations to the detriment of taxpayers, must comprehensively encompass all persons or property provided for in the law and not merely a portion of them, and care must be taken that they not be of such magnitude as to violate private property (Articles 33, 40, 45, 121 paragraph
It states that it will set out in detail, hereafter, the violations that, in its view, have been generated by the enactment of the provisions of Ley N° 9.544 and that are challenged through this action. It indicates that the challenged provisions are causing serious economic harm, as well as individual harm, to each of its represented parties.
It adds that the Universal Declaration of Human Rights provides that every person who works has the right to remuneration that, in the case of retirees and pensioners (jubilados y pensionados) who contribute throughout their entire working lives to a pension system, gives them the right to receive an economic benefit for services rendered, as set forth in its article 3:
"3. Everyone who works has the right to just and favorable 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 now approved and being challenged, the protective purpose promoted by the Universal Declaration of Human Rights is being violated and that, far from ensuring that pension funds and systems maintain their purchasing power, the law is instead promoting the disproportionate reduction of pensions and retirement benefits by establishing a solidarity contribution (contribución solidaria) ranging from 35% to 55%, with no technical basis indicating that those percentages are the ones that should be applied, and without taking into account that the population concerned has, for the most part, surpassed 65 years of age, and that in some cases these are persons 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 system.
It adds that the social security protection of retirees and pensioners would not be guaranteed either, since, if the solidarity contribution and the increase in the ordinary contribution are applied, the reduction in the amounts of pensions and retirement benefits would jeopardize the economic sustenance of households that depend on that income. It argues that, in that regard, the Constitutional Chamber (Sala Constitucional) held in ruling N° 633-94 of 3:18 p.m. on January 31, 1994, that in order to be constitutional, taxes must not distort other fundamental rights, and that the Constitution ensures the inviolability of private property, as well as its free use and disposition, and prohibits confiscation:
"The State may take a portion of the income generated by the individual to cover public expenditures, but only to the extent that it does not nullify property as such, as would be the case if the tax were to absorb all of the income. If the Constitution protects the right of property over the entire patrimony, it cannot be acknowledged or admitted that other provisions would destroy it. Thus, in order 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 disposition, and prohibits confiscation" (see also Voto 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 provisions are unconstitutional, as retirees and pensioners are left unprotected by the suppression of their income — previously granted and declared — which undermines the quality of life and the fundamental right to a dignified old age. It adds that, in practical terms, it can indicate that the changes introduced by Ley N° 9.544 have social, economic, and family implications for retirees and pensioners, including the following situations that have been identified:
It states that, as a consequence of the application of articles 236, paragraph 1), and 236 bis of Ley N° 9.544 — challenged herein — the constitutional rights enshrined in articles 50, 51, and 73 of the Political Constitution are grossly infringed. It indicates that, regarding the protection of retirees, pensioners, and older adults, article 51 of the Constitution has established a special protection for them; a provision that has been given extraordinary content by the Constitutional Chamber, which, as the supreme interpreter of the Constitution, has established a 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 by the enactment, by the Legislative Assembly, of the Comprehensive Law for the Older Adult of October 25, 1999, Ley N° 7935, whose article 1 establishes as its objective the guarantee of equal opportunities and a dignified life in all spheres for older adults, as well as the promotion of comprehensive, interinstitutional care for older adults by public and private entities, and ensuring the proper functioning of programs and services for this population, and guaranteeing the protection and social security of older adults.
It further notes that constitutional case law reflects the use of "soft law" instruments to reaffirm this special protection, such as the Protocolo de San Salvador, the Carta de San José sobre los Derechos de las Personas Mayores de América Latina y el Caribe, and, more 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 relevant to highlight that the Constitutional Chamber, in ruling N° 9676-2001, stated, in the relevant part:
"(...) REGARDING THE SPECIAL PROTECTION ACCORDED TO PERSONS OF THE THIRD AGE (ARTICLE 51 OF THE POLITICAL CONSTITUTION).
(…) it is clear that the special protection by the State for those groups of persons constitutes a true fundamental right, enforceable before the corresponding administrative bodies and courts of justice.
Thus, from the concept of the social rule of law (Estado social de Derecho), it is possible to derive obligations for the authorities, precisely in pursuit of the greatest well-being of all inhabitants of the country, among whom constitutional law specifically identifies children, mothers, the elderly, and vulnerable persons. It is from the establishment of a social state (Estado Social), derivable from the provisions contained in articles 50 and following of the Fundamental Charter, that the obligatory state intervention in social matters is immediately generated — intervention that must act in a determined 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, referred to as persons of the third age, or older adults. Until recently, no regulatory framework existed to guarantee, in a more adequate manner, the special protection and state guardianship (tutela estatal) that older adults in our country require; however, recently, the Legislative Assembly enacted the Comprehensive Law for the Older Adult (Ley Integral para la persona adulta mayor), number 7935, of the nineteenth of October of nineteen ninety-nine, which seeks to a) Guarantee older adults equal opportunities and a dignified life in all areas (…)" (emphasis is from the petition).
It further adds that, in the same vein, judgment N° 2007-13584 of 15 hours 15 minutes on September 19, 2007, provided:
"(…) I.- ON THE QUALITY OF LIFE OF OLDER ADULTS. Our Political Constitution enshrines a special protection for older adults, which is expressly derived from the provisions of article 51 of the Political Constitution, which provides the following:
[…]
For its part, this Constitutional Tribunal has indicated that, in accordance with said provision, the Costa Rican State has a dual duty: first, to create an adequate regulatory framework in order to provide special protection for these groups of persons, which constitutes a genuine fundamental right. Second, it is responsible for respecting and ensuring respect for such rights, through the corresponding administrative bodies and courts of justice. Likewise, it has been concluded that, from the consecration of the social rule 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 pursuit of the greatest well-being of 'all inhabitants of the country,' among whom constitutional law specifically identifies children, mothers, the elderly, and vulnerable persons. Thus, the social state, enshrined in our Political Constitution, develops within its normative content a relevant and obligatory protection and state intervention in social matters in favor of those particularly vulnerable sectors of the population that, by their condition, so require it; such is the case — without any doubt — of the elderly, persons of the third age, or older adults" (emphasis is from the petition).
It indicates that, for the Chamber, the Costa Rican State has a dual duty: first, to create an adequate regulatory framework in order to provide special protection for these groups of persons — namely, retirees, pensioners, older adults, or persons of the third age — which constitutes a genuine fundamental right; and second, it is responsible for respecting and ensuring respect for such rights through the corresponding administrative bodies and courts of justice.
It considers that, in light of the foregoing, the application of the challenged provisions is abusive and arbitrary (another of the purposes of the principle of legal certainty (seguridad jurídica)) insofar as it worsens the socioeconomic conditions of retirees and pensioners of the Judicial Branch, at will and with no regard for their rights and expectations — this because it concerns a mandatory pension scheme that, freed from any legal certainty controls, would allow conditions to be varied in the most indiscriminate ways, regardless of the workers' wishes. In this regard, it recalls that the idea of legal certainty binds all branches of the State but especially obliges the Judicial Branch, and the constitutional magistracy — which is fundamentally a branch of oversight; it is the last guarantee provided by the legal-political system, and for constitutional jurisdiction to reliably fulfill its roles in matters of legal certainty, certain factors must converge, such as an impartial and competent judiciary, both technically and ethically speaking.
It states that constitutional protection for retired and pensioned persons and older adults is broadened in Costa Rica by the existence of conventional norms that, more clearly and precisely, establish more effective protection for persons with that profile within the community. It indicates that the subject matters concerning older adults constitute a fundamental rights issue that has been protected by different normative instruments at the constitutional, conventional, and supranational levels, which demonstrates multilevel protection, and in that regard, it argues that the work of judges in constitutional jurisdiction, in the application and interpretation of the rights of older adults, plays a fundamental role, as it holds that States are the primary guarantors of the protection of rights based on the principles of subsidiarity and complementarity. It emphasizes that article 236 bis) of Ley 9.544 establishes a levy that has been characterized as a special solidarity contribution (contribución especial y solidaria), which is contrary to the provisions contained in articles 3 subparagraphs c), f), and g), 6, 7, and 17 of the Inter-American Convention on Protecting the Human Rights of Older Persons, 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, in and of 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 (Ley de la Jurisdicción Constitucional), said convention recognizes a set 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 N° 14-18301 stated, in the relevant part:
"(…). The Chamber has protected in its case law the interests and rights of older adults, as they find themselves in a situation of special vulnerability. In the sub-lite, this Tribunal holds that the failure to repair the street in front of the petitioner's home directly affects his fundamental rights, since by virtue of his advanced age he requires an accessible and easily traveled roadway in order to move about, whether on foot or by vehicle. Having confirmed the situation reported, it is appropriate to grant the amparo with respect to this aspect." It argues that article 17, in full consonance with the principles that inform 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 indispensable for enjoying aging in conditions of dignity and independence; the capacity to have a regular and sufficient quantity of economic resources in old age is essential to guarantee a good quality of life, which is a right protected by the cited norms, both from the Convention and from the Political Constitution, so that Ley N° 9.544 — in its view — becomes unconstitutional when it undermines the dignity of the pensioner and retiree. It recalls that the primary objective of retirement and pension programs or systems consists in protecting the population from the risk of income loss in old age, and that such protection may be provided within the framework of a contributory scheme (financed mainly by contributions from workers and employers) or a non-contributory scheme (financed by taxes or general state revenues). It argues that in contributory systems, the foundation or rationale for protection is based on the right to rest, earned through contributions to productive activity over a long period of time, and is established as compensation for years of productivity and service, unlike other employees.
It states that in old age the probabilities of experiencing economic deterioration increase — such as that suffered by those represented here through the application of Ley N° 9.544 — whose impact puts at risk the survival of retired, pensioned, and older adult persons, as well as their rights broadly 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 the 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 valorization of the older adult, their role in society and contribution to development, the dignity, independence, leading role, 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 Assembly of the Organization of American States.
It mentions that, in the sphere of supranational law and, in particular, at the European community level, this subject matter has found recognition in the Charter of Fundamental Rights of the European Union (2000) — commonly called the Charter of Nice — whose article 25 provides:
"The Union recognizes and respects the right 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, providing: "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." She argues that, likewise, the Inter-American Convention on Protecting the Human Rights of Older Persons is noteworthy, since its article 31 establishes that access to justice encompasses three aspects: the first comprises access proper, whereby the person may bring actions to obtain judicial protection without obstacles or discrimination; a second aspect is the right to obtain a ruling from the judicial system that safeguards those rights or resolves the conflict by means of a judgment or any other duly reasoned decision; and as a third dimension, ensuring that such resolution is complied with and enforced.
She notes that, in Costa Rica, this principle of equality and non-discrimination is protected under article 33 of the Constitución Política, which provides that "Every person is equal before the law and no discrimination contrary to human dignity may be made." She recalls that, in addition, the country has signed a series of international human rights instruments that regulate this subject matter, 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, subparagraph d); and the Inter-American Convention on Protecting the Human Rights of Older Persons, which defines in its article 2 age-based discrimination in old age. She argues that, for its part, the Sala Constitucional has determined that the principle of equality and non-discrimination is violated in those cases where different treatment is given to persons who are in the same situation or category.
She states that another central issue is that no international convention on Social Security, Labor, or Protection of the Elderly could run counter to the principle of expansion and progressivity of social rights, as appears to have been applied in bill No. 19922. She emphasizes that all amounts referenced in Convention 102 are based on the earnings (income received by the active worker) of an active worker who is in active employment and never on pension or retirement amounts, which are already reduced at the time the right is declared; accordingly, she considers it absolutely arbitrary to assume that OIT Convention 102 permits, promotes, or authorizes the reduction of pension benefits currently in payment.
She states that it is inconceivable that, sheltered by a minimum Social Security standard such as OIT Convention 102, one would seek to justify that pensions could be reduced by 55% of the gross amount (second paragraph of article 236 of Ley N° 9.544); that is, that the person is guaranteed the enjoyment of only 45% of the gross pension. She notes that in the analysis of old-age pensions, articles 25 through 30, 66, and 67 of OIT Convention No. 102 refer to percentages of the worker's salary for the granting of a pension, and do not refer to benefits currently in payment (pensions), nor to the fact that those benefits were reduced at the time of their grant and may be reduced again. She adds that said Convention likewise does not authorize pensions currently in payment to be levied again with special contributions to the fund—denominated special and solidarity contributions—among others, with the ultimate result that the gross amount of the pension currently in payment is reduced by 55%; she therefore considers the challenged provisions to be contrary to Convention 102.
She argues that any legal provision enacted reducing pensions currently in payment, such as the challenged provisions of Ley N° 9.544, becomes unconstitutional because they involve vested retirement and pension rights (derechos jubilatorios y de pensión) that have been established as consolidated legal situations (situaciones jurídicas consolidadas) and have been characterized as constitutional and fundamental rights by the Sala Constitucional itself and, consequently, carry a special scope of protection; that is, in her view, seeking to adjust the rules governing Poder Judicial pensions and retirements to the content of OIT Convention 102, as Ley N° 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 Constitución Política. She recalls that matters related to older adults enjoy protection of fundamental constitutional rights pertaining to that population and, therefore, such rights find protection at different levels—constitutional, conventional, and supranational—through multi-level protection mechanisms for older adults, characterized by catalogs of fundamental rights ("bill of rights"), with jurisdictional bodies entrusted with their protection.
In addition to the foregoing, she states that older adults possess a series of inalienable rights by virtue of their condition alone as human beings; however, legal doctrine distinguishes between older adults who are self-sufficient and those who are not, since in the latter case the degree of vulnerability increases and may be multiple, and therefore the level of protection that state and jurisdictional authorities must provide is greater.
She indicates that in Costa Rica, the Procuraduría General de la República has maintained a shifting position that is worth highlighting, and she likewise considers it necessary to mention the doctrine of the Spanish Constitutional Court on this matter. Regarding the Procuraduría General de la República's opinion on vested rights (derechos adquiridos) (Spanish doctrine), she contends that, in order to define the meaning of the principle of non-retroactivity of the law as provided by article 34 of the Constitución Política, it is known that that body has on other occasions indicated that non-retroactivity does not apply to the monetary amount of pensions, basing itself on a judgment from Spanish jurisprudence. She argues that, in the view of those she represents, such conclusions of the Procuraduría were reached contrary to its own precedents and without regard to what is established in the original article 9.3 of the Spanish Constitution; a provision that includes only the non-retroactivity of sanctioning, non-favorable, or individual-rights-restricting provisions.
That is, she points out that the Spanish Constitution does not include the precept as it is understood in the Costa Rican legal order. She indicates that Professor Garrido Falla teaches that the provision equivalent to article 34 of the Constitución Política is found in article 2.3 of the Spanish Civil Code, which provides that "laws shall have no retroactive effect," and refers to the complexity of interpreting the meaning of the final portion of article 9 of that Constitution, noting that it guarantees the non-retroactivity of provisions restricting individual rights, and cites jurisprudence of the Spanish Constitutional Court to conclude with the following statement:
"But retroactivity will be unconstitutional only when it concerns sanctioning, non-favorable provisions, or insofar as it restricts individual rights" (emphasis in the original brief).
In summary, she states that the Spanish Constitution does not address vested rights with a provision equivalent to that of Costa Rica, and that for Professor Garrido Falla "it is to be assumed that the framers sidestepped it…," so that any assessment made of constitutional institutions that are not equivalent turns out to be inexact or incomplete, and sometimes even contradictory. She adds that the Procuraduría General de la República, 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 in order to fulfill or meet the needs of the right-holder"; "According to the foregoing, it may be stated that the vested right admits no uncertainty or contingency, it is not a mere expectation, but rather implies certainty or firmness in its legal situation"; "It is precisely that condition of certainty that generates for the right-holder the guarantee of the Legal Order that the Administration's legal duty to satisfy their needs in the course of the service relationship binding them will be fulfilled, specifically those whose effect is a patrimonial benefit." She then indicates that the Opinion addresses consolidated situations and cites the judgment of Corte Plena, then responsible for constitutional review, issued in extraordinary sessions on November 9, 1982, and March 4, 1982, to state: "…and it is obvious that a legal situation is not consolidated solely by a judicial judgment that declares or recognizes a disputed right, but also under a statutory provision 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 infringement of article 34 of the Constitución Política." She states that this criterion of the Procuraduría has been reiterated over time, for example, in Opinion C-320-2006 of August 9, 2006, in which it expressed:
"Based on those constitutional limits, it can therefore be affirmed that, with respect to the effects of law over time, the general rule is non-retroactivity (irretroactividad), understood as the phenomenon by which a new law governs all facts and acts arising from the moment it enters into force; for it is obvious that if a legal situation has been fully consolidated under the old law, no conflict of laws exists, just as no conflict exists when the facts and situations to be regulated arise during the period in which the new law is in force. The need to determine which law should govern a particular matter arises — as in the present case — when a fact originates under the old law but its effects or consequences occur under the new one, or when a legal act is performed under the old law but the new law establishes new conditions for the recognition of its effects.
The general formula that flows from constitutional article 34 for resolving the foregoing conflicts is, of course, non-retroactivity of the law, since it guarantees that legitimately acquired patrimonial rights (derechos patrimoniales) under the prior law are respected, without prejudice to the possibility of affecting mere expectations of right (meras expectativas de derecho), when the matter concerns legal situations still in progress — that is, situations that have not yet generated consolidated legal positions (situaciones consolidadas) or acquired rights (derechos adquiridos) at the moment the new law enters into force; accordingly, the new law begins to govern that situation in whatever state it finds it, without prejudice to respect for what has already taken effect under the old law.
That is, when the matter involves mere expectations, the new law applies immediately.
That general immediate effect of the new law does not contravene the Constitution, because, since its application concerns legal situations that have not yet been consolidated, it does not have the reach of disregarding acquired rights, much less consolidated legal situations. It is therefore clear that the provision (constitutional art. 34) refers to subjective legal situations that have already been consolidated, and not to those that constitute mere expectations, since the latter, the right not yet having become perfected, are indisputably subject to future regulations introduced by law." It is noted that it is worth mentioning the minutes of the National Constituent Assembly of 1949 concerning consolidated legal situations, and in that regard it is considered that the Office of the Attorney General (Procuraduría) should not have turned to foreign doctrine when it could have examined the preeminent source of the Political Constitution, namely the debates of the National Constituent Assembly.
It is recalled that the Social Democratic Party (Partido Social Demócrata) faction submitted a draft Constitution which, after being debated, was rejected by that Assembly at Session No. 52 of April 8, 1949, with the agreement that the Political Constitution of 1871 would be used as the basis for discussion; in that Constitution, the subject of non-retroactivity of the law was addressed in Article 26, which provided specifically that the "law shall have no retroactive effect." It is noted that that National Assembly began its analysis of this subject matter in Acta No. 103, in which the Social Democratic faction submitted a motion for Article 26 to read as follows:
"The law may have retroactive effect only:
1. To the detriment of legitimately acquired patrimonial rights, by means of an extraordinary law enacted on grounds of manifest public interest. When retroactivity entails expropriation, the provisions governing that subject shall apply.
2. In criminal matters, when the later law is more favorable to the accused, even where a final and enforceable judgment exists, except in the case of offenses inherent to public officials or electoral offenses.
3. In procedural matters, but without altering the validity of prior proceedings." He argues that constituent assembly delegate (constituyente) Vargas Fernández, drawing on the doctrine of don Alberto Brenes Córdoba, proposed amending the initial declaration of the preceding motion so that it would read: "The law shall have no retroactive effect to the detriment of vested rights (derechos adquiridos) or consolidated legal situations (situaciones jurídicas consolidadas). However, the following cases may be excepted: ..."; the Social Democratic bloc (fracción Social Demócrata) decided to withdraw its motion, leaving the motion of Delegate Vargas Fernández pending discussion, and a complex debate ensued. He states that the first session in which what is today Article 34 of the Constitution was examined adjourned without resolution, and that in Acta 113 the discussion was resumed; Delegates Baudrit González and Fournier submitted a new motion beginning with the words: "The law shall have no retroactive effect to the detriment of consolidated private patrimony already vested...," and Delegate Baudrit González, when explaining its content, stated: "...I began by enunciating what pertains to consolidated private patrimony — that is, property that has already passed into the hands of its owner.
I believe that the principle of non-retroactivity of laws should refer exclusively to that subject matter and sphere, since it encompasses the guarantee that renders property inviolable." He states that after a lengthy debate involving a sizeable group of constituent assembly delegates, the motion of Delegates Baudrit González and Fournier was rejected; thereafter, motions were submitted by Delegates Fournier, González Herrán, and Desanti, all of which were likewise rejected, and after those unsuccessful attempts to forge a majority position, Delegate Rojas Espinoza submitted a motion and the session was adjourned.
He adds that in Acta 114 the discussion of the issue of retroactivity of the law continued, with a new motion by Delegate Rojas Espinoza amending paragraph 1) of the exceptions to the principle that the law shall have no retroactive effect; during the debate on that motion, the proponent affirmed that: "...it was well known that the law has no retroactive effect, since its operation is directed toward the future and cannot reach back to contemplate past events"; constituent assembly delegate Castro Sibaja added that the exception in paragraph one is "...unacceptable and inadmissible, given the dangers that retroactive laws may pose in altering acquired patrimony or substantially modifying definitive consolidated legal situations..."; Delegate Leiva also intervened, with the passage of the Minutes expressing: "He added that, if his colleague Rojas Espinoza were to supplement his motion to the effect that the retroactivity of the law may not affect absolutely consolidated vested patrimonial rights, he would gladly vote in favor of it"; and Delegate Arias Bonilla noted: "...that the retroactivity of the law may not affect consolidated legal situations, which signified respect for the acquired patrimony of Costa Ricans.
Under no circumstances whatsoever may one act against a consolidated patrimonial right." He states that at last Delegate Baudrit Solera intervened to say that: "He considers that by simply stating what don Alberto (Brenes Córdoba) so aptly affirms, the problem is resolved: 'The law shall have no retroactive effect to the detriment of vested patrimonial rights (derechos patrimoniales adquiridos) or consolidated legal situations'"; and with that text the National Constituent Assembly approved Article 34, which later, through the editorial refinement procedure, was left with its current wording, namely: "No law shall be given retroactive effect to the detriment of any person, or of that person's vested patrimonial rights, or of consolidated legal situations." He considers that the result of the analysis of the constituent process is conclusive: vested patrimonial rights or consolidated legal situations, by virtue of the application of a statute then in force, cannot be impaired by a subsequent law, because doing so would entail, among other effects, that the consolidated legal situation has been absorbed into the patrimony of the individual, and to disturb it is to violate the also constitutional principle of patrimonial intangibility (intangibilidad patrimonial) enshrined in Article 45 of the Constitution.
He notes that it is precisely that constitutional prohibition which has been breached by Ley N° 9.544, since its provisions affect consolidated legal situations to the detriment of his clients (private individuals), their vested patrimonial rights (pensions and retirement benefits (pensiones y jubilaciones) in payment that were previously declared final), and consolidated legal situations in the form of pension and retirement benefits protected by Articles 73 and 74 of the Constitution.
He states that it is interesting to invoke the principle of non-retroactivity (irretroactividad) in light of the judgments of the Spanish Constitutional Court, and to that end notes that the Spanish Constitution of 1978 establishes in its Article 9 the so-called legal guarantees, with the provisions of paragraph 3) of that article being of particular relevance to the matter at hand, pursuant to which "the Constitution guarantees the principle of legality, normative hierarchy, public notification of norms, non-retroactivity of unfavorable or individual-right-restricting sanctioning provisions, legal certainty, liability, and the prohibition of arbitrariness by public authorities." He emphasizes that the formulation of the Spanish Constitution with respect to the principle of non-retroactivity of the law differs from the Costa Rican formulation, since Article 34 of the Constitution provides that the law shall have no retroactive effect to the detriment of the person, that person's vested patrimonial rights, or consolidated legal situations — that is, three legally protected interests are established within the protection against retroactivity.
He states that, seeking to harmonize both constitutional texts, it may 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 framers of the Constitution upon the legislature, with respect to the retroactive effect of norms or acts, extends beyond the rights of the "person" (primary rights) to "vested patrimonial rights" or "consolidated legal situations." He argues that, in accordance with the foregoing, the jurisprudence of the Spanish Constitutional Court on non-retroactivity is not comparable or potentially compatible with the Costa Rican context, except when the foregoing distinction is made clear — that what Spanish jurisprudence calls "individual rights" would correspond in Costa Rica to rights of the "person," which then expands to "vested patrimonial rights" or "consolidated legal situations" — failing which one risks incurring serious conceptual errors.
He argues that, bearing that distinction in mind, it may be affirmed that the doctrinal line of the Spanish Constitutional Court's jurisprudence has come down in favor of protecting — in matters of social security — individual rights previously declared by earlier statutes against future changes to those statutes that entail modifications of those rights for persons who have not yet availed themselves of a particular insurance scheme, pension, or retirement benefit. He argues that, stated differently, if an earlier statute served as the basis for granting a pension or social insurance benefit and is subsequently amended, those persons who had a constituted individual right, a declared patrimonial right, or a consolidated legal situation will be shielded from the amendment; consequently, it will be the citizens who were contributors to the insurance scheme or pension system — whose rights had not yet been constituted — who are affected.
He argues that, according to judgment 27/1981 of the Spanish Constitutional Court, a legal reform to a social security system of mutualist benefits will be constitutional when it seeks to achieve the principle of "unity" without affecting consolidated legal situations, without eliminating or reducing already consolidated benefits, and without diminishing benefits that are being received or that have accrued.
He states that, transposing the definitions of the Spanish Constitutional Court to the scope of Ley N° 9.544, it must be said that the modifications established therein with respect to the amounts of pensions and retirement benefits — aimed at modifying "individual rights," rights of the "person," "vested patrimonial rights," or "consolidated legal situations" — may only affect those members (afiliados) who have not consolidated their legal situation because they have not yet met the eligibility requirements and are in the process of acquiring them; expressly excluded from the scope of the new law (Ley N° 9.544) are pensioners whose benefits are in payment, since with respect to them vested patrimonial rights or consolidated legal situations already existed beforehand. In other words, in his view, the constitutional guarantee of non-retroactivity means, with respect to the pension scheme under the Ley Orgánica del Poder Judicial, that all those pensioners whose pensions are in payment, or whose entitlement is constituted within the 18 months following the enactment of Ley N° 9.544 as "pension rights to a current benefit," may not be affected by the "special, solidarity-based, and redistributive contribution" (to the extent that it passes constitutional scrutiny); the situation is different for those who retire after that 18-month period, since they would do so under the new Ley N° 9.544, which does establish — for retirees and pensioners — a cap on the amount of benefits and the aforementioned special contribution.
He argues that when normative changes come into conflict with the principle of non-retroactivity — because there is a "detriment to the person," or "vested patrimonial rights," or "consolidated legal situations" — the champion of the dispute is the constitutional principle of legal certainty (seguridad jurídica), which, in a balanced manner, makes it possible to advance justice and equality in freedom within the legal order; this means that, in the interest of legal certainty, reforms that are unfavorable or detrimental to persons — in this case the petitioner-pensioners who have acquired personal rights, patrimonial rights, or consolidated legal situations prior to the enactment and entry into force of Ley N° 9.544 — are beyond reach.
He states that, although no one denies that the legal order is dynamic and subject to change, it will always be bounded by the prohibition against detriment to persons, their vested patrimonial rights, or consolidated legal situations, whenever it introduces unfavorable norms, in the interest of a higher good such as the legal certainty of the citizen.
He indicates that it is therefore evident that Articles 236 and 236 bis of Ley N° 9.544 are unconstitutional for violating the principle of non-retroactivity in Article 34 of the Constitution, insofar as they are detrimental to the consolidated legal situation and the patrimonial rights of the petitioners — who have been pensioners for years — and also with respect to those who, under the recently repealed legislation, consolidate their rights within the 18 months following the enactment of the said law.
The petitioner indicates that the Political Constitution contains a set of individual rights that perform a protective function over individuals' economic patrimony against the power of the public authorities to impose financial burdens; so that, alongside the duty of Costa Ricans to contribute to public expenditure established in Articles 18 and 121 paragraph 13), 33 (equality), 34 (non-retroactivity of the law), 40 (prohibition of confiscation), and 45 (patrimonial intangibility and inviolability of private property), those constitutional norms, principles, and values protect the fundamental rights of the individual against any patrimonial exaction coercively established by the public authorities where the sole justification is arbitrariness. The petitioner states that the Constitutional Chamber developed, during the 1990s, various definitions of reasonableness as a parameter of constitutionality, highlighting concepts such as technical, legal, equality-based, and purpose-based reasonableness; and that the Chamber further incorporated into its reasoning contributions from decisions of the Supreme Court of Justice of the United States and from German legal doctrine, which identified legitimacy, suitability, necessity, and proportionality as components of reasonableness — citing by way of example judgment number 5236-1999 and judgment number 2000-2858; and that, with respect to proportionality, the petitioner invokes the content of judgment N°5758-2018, asserting that it sets out the reasons why Article 236 bis is considered unconstitutional.
The petitioner states that, after acknowledging that reasonableness is a parameter of constitutionality and applying that conceptual framework to the present matter, it follows that the ordinary legislature, through Article 236 bis of Ley N°9.544, determined that a group of approximately 130 persons would be required to make additional contributions, paying the levy of the ordinary contribution that all active workers and pensioners pay, at a rate of up to 55% of the pension amount currently being paid.
The petitioner argues that the legislative act in question — which sought, for fiscal and public-finance reasons, to reduce pensions and correspondingly increase revenue to the Fund — must be analyzed to determine whether that measure is lawful, suitable, necessary, legitimate, and proportional. The petitioner notes that Article 121 paragraph 13) of the Political Constitution grants the Legislative Assembly the competence to establish national taxes and contributions and to authorize municipal ones, creating a differentiating criterion based on the territorial element: it establishes national levies and authorizes those of local governments — a distinction that has been extensively addressed in constitutional case law. The petitioner indicates that Article 4 of the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios) develops that constitutional provision at the statutory level; and that this tax rule addresses aspects that could conflict with the Political Constitution, such as changing the characterization of a "national contribution" to convert it into a "special contribution," and also includes fees (tasas), which are levies but are neither taxes nor contributions — the three-part classification being virtually universal in tax law.
In addition, the petitioner argues that if national or special contributions are a type of levy whose taxable event is the benefit obtained by the taxpayer from the execution of a public works project or from state activities, it is equally true that the so-called "Special Solidarity Contribution" (Contribución Solidaria Especial) does not qualify under any tax classification, which would imply that the Legislative Assembly lacks the competence to pass laws creating such contributions since they do not correspond to what paragraph 13) of Article 121 of the Constitution defines; consequently, the special solidarity contribution established in Article 236 bis of Ley 9.544 is, by its very nature, openly unconstitutional in the petitioner's view. Furthermore, the petitioner notes that Article 236 bis of Ley N°9.544 is a rights-restricting measure in that it establishes a special, solidarity-based contribution, which the law's proponents considered suitable for actuarially balancing the Fund and for limiting the fiscal expenditure involved in keeping the Fund operating; however, the petitioner argues that in reality Article 236 bis of Ley N°9.544 is unsuitable, because it restricts the rights of pensioners by establishing a special, solidarity-based, and redistributive contribution that contributes little or nothing to the actuarial balance of the Fund or to the limitation of public expenditure, and therefore does not effectively achieve its stated objective — as is apparent from the records of the Special Committee — and moreover, the impact on the individual rights of pensioners is of such magnitude that they are required to contribute up to 55% of the nominal amount of their pension, to the direct detriment of vested legal situations and their rights to dignity, independence, special protection by the State, and economic autonomy.
The petitioner considers that the State, acting through the Legislative Assembly, had various options for achieving the objective pursued when Ley N° 9.544 was enacted; however, it chose the option that most directly and egregiously harmed the legal sphere of all contributors to the Fund, both active workers and pensioners. The petitioner adds that, without prejudice to the foregoing, the ordinary legislature chose the most abrupt and burdensome measure, imposing exorbitant levies on pensioners by requiring them to make a special, solidarity-based, and redistributive contribution — but not before also increasing the ordinary contribution and obligating them to finance the operation of the Junta Administrativa, created within the structure of the Judicial Branch. The petitioner considers that this decision unquestionably did not merely affect, but rather trampled upon, the legal sphere of pensioners and active workers, whose contributions were increased and whose future pensions were impoverished, all of this overnight.
The petitioner considers that when Ley N°9.544 was enacted, the objective pursued by the legislative act was constitutionally restricted and, despite this, those provisions were circumvented in order to enact the Law in question. The petitioner recalls that, in accordance with Articles 9, 154, and 177, there is a separation of powers between the Legislative Assembly and the Judicial Branch; however, when the cited law was passed, that independence was not respected, as bodies were created for the administration of the Judicial Branch Pension and Retirement Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), affecting the organization or functioning of that Branch, without carrying out the mandatory consultations required by Article 167 of the Political Constitution. Furthermore, the petitioner notes that the intrusion by the Legislature — which is constitutionally prohibited — was so extensive that it violated the constitutional principles of independence and, consequently, the separation of powers.
The petitioner adds that another aspect that undermines the legitimacy of the challenged provision is found in Article 121 paragraph 13 of the Political Constitution, since that provision grants 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. The petitioner adds that, in the case of pensioners, Ley N° 9.544 sought to limit pension amounts by establishing a special and solidarity-based contribution in Article 236 bis, and did so by imposing an extremely burdensome restriction that prevents the pensioners whom the petitioner represents from being able to fully and peacefully enjoy their pensions, as well as from exercising their rights established in International Conventions for older adults or pensioners. The petitioner indicates that no greater benefit to the community can be identified, since reducing pensions through a special and solidarity-based contribution does not resolve the actuarial or financial problem of the regime, but does grossly disrupt the individual rights of the petitioner's clients, who will see their right to the enjoyment of a pension curtailed, along with the guarantee of economic autonomy in old age and economic and social independence — all as a result of a legislative act that failed to satisfy the four indispensable conditions required to demonstrate its reasonableness, in addition to the fact that the articles of the challenged Law are not necessary, suitable, legitimate, or proportional.
The petitioner considers it irrational and disproportionate to establish, through the challenged provisions, levies so high that they nearly double the maximum income tax rate applicable to the lucrative activities of private enterprises — which is set at 30% of taxable income — while the challenged article permits a deduction of up to 55% of the gross pension amount. The petitioner recalls that, with respect to retirees, the State also has limits on its taxing power, and that it must be borne in mind that for a retiree a pension is their sole income and that, for this reason, the tax obligations imposed on them must be governed by the principles of universality, reasonableness, and proportionality that apply to the tax rates fixed for wages and earnings (see in that regard judgment N°5758-2018 of 15 hours 40 minutes of April 12, 2018). The petitioner states that, in keeping with the foregoing, the Constitutional Chamber in Judgment N°654-93 of 15 hours of February 21, 1993, held that the amount a public official receives by way of a pension cannot be frozen, precisely because it is received as remuneration for past services, and that in the case of the petitioner's clients, the application of the special contribution effectively freezes the retirement benefit or pension, which, in the view of the high Court as expressed in that judgment, would be unconstitutional. The petitioner argues that it is relevant to highlight what the Chamber resolved in the cited judgment:
"... Retirement is a right of the public official, not a grace. It might be said to constitute the passive side of the employment relationship. And, consequently, the fundamental characteristics inherent in the right to a salary also apply to the retirement benefit. In an economic environment afflicted by inflation, it would not be reasonable to freeze a salary of twenty thousand colones per month — the example is apt because that is the 'ceiling' fixed by the provision challenged as unconstitutional — especially when similar salaries do enjoy periodic adjustments, as the article in question provides. Nor, therefore, can the amount received by a public official by way of a pension be frozen; precisely because it is received as remuneration for past services. In exchange for their services the active official receives a salary. Upon moving to inactivity, they continue to receive remuneration, but this time for services already rendered..." (emphasis in the original filing).
It argues that the challenged provisions leave the retirement benefit or pension, as the case may be, at an amount that constitutes "a ruinous, impoverishing, and undignified reduction" (see the dissenting opinion in judgment N°5758-2018 of 3:40 p.m. on April 12, 2018), given that the right to a fair retirement benefit or pension for retirees and pensioners forms part of the human right to social security and the right to retirement for elderly persons, as characterized by the laws enacted by the Costa Rican State to create retirement systems. Summarizing its argument on this point, it asserts that Article 236 bis of Ley N° 9.544 is:
It states that the fact that a person retires does not give the State free rein to impose a tax obligation exceeding the tax limits applicable to salaried workers, so that these percentages reveal illegitimate inequalities or discrimination, since the percentage of this contribution far exceeds the tax on legal persons and on natural persons; these determinations must take into account the contribution made by the judicial officer throughout his or her entire working life, which, on average, amounts to 11% per month of the gross salary (see in that regard judgment N°5758-2018 of 3:40 p.m. on April 12, 2018). It adds that, with respect to solidarity, it must be noted that, at present, the maximum limit of solidarity is determined by income tax rates, which for natural persons is capped at a maximum of 15%; however, under the reform to the Fund, the maximum capped limit is a 55% deduction, which does not apply to all retirement benefits and pensions but only to those exceeding the established ceiling. It warns that solidarity is not solely an obligation of retirees; it is an obligation of the entire population.
"Article 40.- No one shall be subjected to cruel or degrading treatment, nor to perpetual sentences, nor to the penalty of confiscation. Any declaration obtained by means of violence shall be null and void." It indicates that the principle of non-confiscation in tax matters has been considered a constitutionalized principle, possessing the characteristics inherent to principles and constituting one of the foundations upon which tax systems rest, given that confiscation — in Administrative Law — is one of the real ablatory powers (potestades ablatorias reales) held by States to deprive private individuals of their property without just compensation, thereby infringing the right to private property to the serious detriment of the administered person. It further argues that the principle of non-confiscation constitutes a limit on the exercise of the taxing power, linked to the principles of contributive capacity (capacidad contributiva) and progressivity, and likewise represents a mechanism for protecting the right to private property.
It states that Ley 9.544 has a confiscatory character with respect to the assets of retirees and pensioners, imposing conditions that increase the percentage of the ordinary contribution to the Fund, plus statutory income-tax burdens, plus a special contribution, and it finds this variation to be confiscatory and contrary to the constitutional order. It considers the approach contained in Article 40 of the Political Constitution to be correct: this is a sanction, and in the specific case it is understandable when one takes into account the vulnerability of the retired population, what a pension is, and what it represents to a retired person. It finds it pertinent to cite the following passage:
"The issue of old age is an invisible issue. It would seem that aging, like death, is a problem belonging to others, never to ourselves, to such a degree that in our twenty-first century society there are two large unprotected groups: children and the elderly. One might say that, as we age, our constitutional rights also acquire an expiration date... Aging not only has personal effects, such as the diminishment of physical and mental capacities, but also carries a series of social effects that have compelled States to make public-policy decisions. ... For every day that the State delays a pension payment to an elderly person, that person must live on charity or become yet another dependent of their family, especially if they lack sufficient savings to bridge the transition from active worker to pensioner. Once a person takes retirement, they receive no salary, but neither do they receive a pension, because it is still being processed. The State, on the other hand, for every day, month, or year that it delays payment, may use those funds to meet other 'more pressing needs.' This practically amounts to unjust enrichment, because when the State finally grants the pension or retirement benefit to the elderly person, it makes no indexation and pays no interest for the time elapsed.
In Costa Rica there is a double injustice. The average life expectancy of a person is 76 years; if one retires at 65, we know that that person has practically contributed to a pension system for thirty years and will enjoy it for at most ten. ... It is recognized that the elderly person has specific needs and, above all, that their dignity must not be diminished, because they are not a surviving minority, weak and unproductive, but rather human beings entering a new stage of their lives. For this reason, emphasis is placed on resolving specific problems such as health, quality of life, education, independence, and freedom, to name but a few. ... It was established that the right to a retirement pension must have a minimum equivalent to prior income, the principle of non-discrimination on grounds of age in accessing and maintaining employment was established, and we wish to note that retirement was to be voluntary, not compulsory." (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) It adds that the reform challenged in this action specifically affects judicial retirees and pensioners, in that — by reason of the deductions, special contributions, sickness insurance, and taxes — the assets of retirees inevitably tend to diminish progressively and rapidly. It notes that the Inter-American Court of Human Rights has held that age is also a protected category, and that the prohibition of discrimination on grounds of age with respect to elderly persons is protected by the American Convention (see the case of Poblete Vilches et al. v. Chile, Judgment of March 8, 2018). It considers that, for all the foregoing reasons, as reflected in the reform set forth in Ley 9.544, which it challenges as unconstitutional, the reform does in fact violate Article 40 of the Political Constitution because it is a law that imposes a confiscatory penalty upon Judicial Branch retirees and pensioners, and accordingly — in its view — must be declared unconstitutional.
"...Article 34 of the Political Constitution protects 'acquired patrimonial rights (derechos patrimoniales adquiridos)' and consolidated legal situations (situaciones jurídicas consolidadas), which can only be effectively and genuinely protected by a broad-spectrum system of administrative liability (responsabilidad administrativa) with no immune or exempt zones, when those rights are violated by public administrations in the course of carrying out their public functions. Article 41 of the same Constitution establishes that 'Resorting to the laws, all persons must find redress for injuries or damages they have suffered in their person, property, or moral interests (…)'; this provision imposes upon the author and party responsible for the damage the duty to compensate unlawful injuries (lesiones antijurídicas) actually suffered by individuals as a result of the exercise of administrative functions, whether through positive conduct by action or negative conduct by omission on the part of public entities.
This makes Article 41 the constitutional cornerstone for the legislative development of a system of objective and direct liability in which compensation does not depend on a moral and subjective finding of fault or negligence on the part of the public official, but solely and exclusively on the fact that the individual has actually suffered '(…) injuries or damages in their person, property, or moral interests (…)' — an unlawful injury that the individual has no duty to bear and which must therefore be compensated. Article 41 of the Political Constitution establishes a fundamental right to compensation in favor of any individual who has suffered an unlawful injury caused by a public entity — through its normal or abnormal functioning, or through its lawful or unlawful conduct — and establishes the corresponding obligation on the part of that entity to compensate or fully repair the injury... it thereby becomes an instrumental right for ensuring, by compulsion, that the injured party enjoys and exercises the right to compensation when the party obligated to make reparation voluntarily fails to fulfill that obligation.
Article 45 of the Magna Carta embraces the principle of the intangibility of patrimony, providing that 'Property is inviolable; no one may be deprived of their property except for a legally established public interest, upon prior compensation in accordance with the law (…)' — thereby recognizing, at the constitutional level, that special sacrifices or singular burdens that the individual has no duty to bear or tolerate, even when arising from a lawful activity..." (emphasis in the original brief).
The brief states that the petitioners represented by counsel have served the Judicial Branch for the time required to meet the conditions of the Retirement Regime and that, to that end, all of them made contributions in accordance with Ley N° 7.333, retired under the conditions set forth therein, met all required prerequisites, and received nothing outside the law. Counsel submits that it is not possible for alleged mismanagement of public finances — even though the problem is actuarial in nature — on the part of the State, including the Fund, as argued by officials of the Executive and Legislative branches in nationally circulating media, to now seek to anchor responsibility for the collapse of the public treasury on 130 retired and pensioned individuals whose retirement benefits are to be reduced, without taking into account that the majority are elderly persons who devoted their entire working lives to the Judicial Branch, and who acquired the right in question without violating any rule and without having engaged in any improper conduct.
Counsel states that retired persons and pensioners under the Judicial Branch regime should not be required to bear the imposition of a special (contribución especial), solidarity-based, and redistributive contribution on their pension that is disproportionate and confiscatory in nature. Counsel reiterates that retired persons and pensioners have no duty to bear public burdens (articles 18 and 33 of the Political Constitution), which means that no singular or special sacrifice — such as the special solidarity contribution — should be imposed upon them. Counsel considers that the provisions challenged in this action of unconstitutionality flagrantly violate the Political Constitution insofar as they impose confiscatory burdens on patrimony previously declared pursuant to the law in force at the time, in full compliance with all formal and substantive requirements. Counsel submits that the patrimonial accrual constituting the pension or retirement benefit amount of the petitioners represented is intangible and not susceptible to future regulatory changes imposing additional burdens, as these constitute consolidated legal situations.
Counsel adds that, furthermore, the material act of reducing the pension amount was never individually notified to each pensioner, thereby also violating the principle of reasonableness protected by articles 28, paragraph 2), 41, and 74 of the Political Constitution, in the terms set out by the Constitutional Chamber in Voto 2002-4842 of 16:12 hours on May 21, 2002:
"... the Chamber considers it arbitrary, from every standpoint, that the Administration did not notify the appellant, prior to applying the challenged act, of the reduction of her salary or of the reasons motivating it, thereby violating the appellant's right to due process. Likewise, the Chamber considers that the deduction of 206.709.00 colones applied by the respondent authority to the petitioner in August 2001 violates the principles of logic and of reasonableness and proportionality, since that sum represents the petitioner's entire monthly salary. This is so because such conduct constitutes a confiscatory situation that plainly contradicts the principles that comprise the Law of the Constitution...".
"Principle of Non-Retroactivity. This principle translates into the certainty that a change in the legal order cannot have the effect of preventing the (favorable, it is understood) consequence that the interested party expected from a consolidated legal situation from arising, even when the factual predicate had already occurred prior to the legal reform. Certainly, no one has a 'right to the immutability of the legal order,' that is, a right that the rules never change; for that reason, the constitutional precept does not consist in holding that, once the rule connecting a fact with an effect has come into existence, it may not be modified or even eliminated by a subsequent rule. Nevertheless, a reform that changes or eliminates the rule cannot have the effect of preventing the conditional consequence that was expected under the former rule from arising. This is so because what is relevant is that the state of affairs enjoyed by the person was already defined with respect to its elements and its effects, even if those effects are still being produced or have not yet begun to be produced.
Accordingly, the right to which the person is entitled is the consequence, not the rule. Thus, as the Chamber has stated on prior occasions, the repeal of provisions or the change of normative criteria does not produce the effect of also repealing the rights developed in favor of citizens while those repealed provisions were in force. This is the legal phenomenon that legal doctrine defines as the survival of the abolished law, because, for acts or contracts in force, the repealed law continues in effect to afford protection to those acts and contracts against new legal rules. New legal situations, however, must be governed by current and applicable law, as these involve the creation of new rights. In other words, the abolished law continues to protect acts, contracts, and other rights acquired during the period of validity of the law, rule, or agreement, a principle grounded in the interplay between articles 34 and 129 of the Constitution." Counsel states that, in application and observance of the doctrine of the survival of the abolished law, the retirements and pensions of the Judicial Branch obtained under the provisions of Ley N° 7.333 and its amendments should remain unaffected for all those who acquired that right, notwithstanding the legislative change introduced by Ley N° 9.544, since to hold otherwise would violate Article 34 of the Political Constitution and its correlative principle of non-retroactivity.
Counsel concludes by requesting that, on the basis of the arguments set forth in this brief, Ley 9544 of May 22, 2018, entitled "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Ley No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its amendments," be declared unconstitutional, and that it be annulled from the Costa Rican legal order, leaving the text of the prior law in force. Counsel states that, on grounds of violation of the constitutional principles of non-confiscation, equality, due process, consolidated legal situations, intangibility of patrimony, private property, proportionality, and reasonableness, counsel requests that the provisions of Ley 9.544 amending the Organic Law of the Judicial Branch be declared unconstitutional and consequently annulled from the legal order, specifically the following provisions: Article 236, subparagraph 1) and second-to-last paragraph; Article 236 bis; and Article 239.
He states that in amparo petition (recurso de amparo) number 99-03552-0007-CO-P, which addressed the dispute brought by one of the contributors to the Régimen de Pensiones del Magisterio Nacional, the principal argument raised was that, for more than 20 years, the appellant had worked for the Ministerio de Educación Pública and during that period contributed to the system under Ley 2248; a law that was subsequently amended by Law No. 7268 and that, at the time her pension was granted, it was done on the basis of Ley 7531, which had entered into force in July 1995. He states that in that matter, the appellant considered that the acquired rights under the first law were being violated, and the Junta Nacional del Pensiones was given a hearing, which objectively submitted to the appellant's claims, acknowledging the existence of acquired rights. He states that in resolving the appeal, the Sala Constitucional reiterated the jurisprudence set forth in Voto 1147-90 of 16:00 hours on September 21, 1990, holding that the pension is a fundamental right protected under ILO Convention 102, specifically under provision 29, paragraph a), finding that the appellant, having contributed for 20 years under Ley 2248, had an acquired right to retire under the provisions established by that law, even though it was no longer in force at the time the appellant applied for her pension. On this point, he notes that the Sala Constitucional held:
"In the case before us, the appellant contributed twenty years under Ley 2248, as the Junta de Pensiones del Magisterio Nacional acknowledges, thereby acquiring the right to retirement in accordance with that law, as established by the aforementioned Convention 102; even though she completed the remaining period while Ley 7531 of July thirteenth, nineteen ninety-five was in force. For the foregoing reasons, agreement 3334 of the Junta de Pensiones del Magisterio Nacional and resolution 2262-99 of the Dirección Nacional de Pensiones apply that law retroactively, to the detriment of the appellant's acquired rights, in violation of the prohibition on non-retroactivity of the law" (see ruling No. 6842-99 of 8:45 hours on September 03, 1999).
He states that, in accordance with the binding jurisprudence of the Sala Constitucional, the right to a pension or retirement is a fundamental right acquired from the moment one begins contributing to the specific scheme in question, which is perfected upon fulfillment of the requirements established by the legal system, and that the act approving the benefit is declaratory rather than constitutive in nature; it further recognizes that a right of membership exists when a person has contributed for 20 or more years to a specific scheme. He argues that, in his particular case, it is clear that he has contributed for more than 28 years to a scheme that permitted retirement after 30 years of service. He requests that, based on the foregoing, the provisions of the aforementioned Convention, and the constitutional jurisprudence, an acquired right be declared in his favor, together with membership in the scheme under which he held the expectation of retirement.
He recalls that the Sala Constitucional of Costa Rica has repeatedly held that the principle of equality is one of the fundamental pillars of the human being and must therefore be jealously protected. In this regard, he notes that ruling number 5061-94 of 17:34 hours on September 6, 1994 set forth the prohibition on making distinctions between two or more persons who are in the same legal situation or identical conditions, while also recognizing that equal treatment cannot be demanded when conditions or circumstances are unequal, thereby establishing equal treatment for equal situations while permitting or authorizing different treatment for different situations and personal categories. He argues that, elaborating further on the issue, the Sala Constitucional specified: "But the requirement of equality does not legitimize any inequality; to legitimize differential treatment, it must be analyzed whether the reason producing it is reasonable, that is, whether, in light of the particular circumstances of the case, different treatment is justified." He adds that, in the same vein, ruling number 1770-94 of 9:18 hours on April 15, 1994 of the Sala Constitucional reiterated that the principle of equality "is only violated when the inequality is devoid of an objective and reasonable justification.
Furthermore, the justification for the act considered unequal must be evaluated in relation to its purpose and effects, so that there must necessarily exist a reasonable relationship of proportionality between ends and means." He adds that the violation of the fundamental rights of judicial officials must be highlighted, in light of the different treatment afforded by the legislature regarding the subject of acquired rights in relation to those who work for the Tribunal Supremo de Elecciones. He states that pursuant to the mandate of Article 129 of the Political Constitution, laws approved by the Asamblea Legislativa "...are binding and take effect from the day they designate; failing this requirement, ten days after their publication in the Diario Oficial." He states that, in the case of the challenged Law, as expressly provided by Ley 9544 at the end — without any articles — the legislators established its immediate entry into force upon publication, which was made in La Gaceta number 89 of May 22, 2018. He mentions that Transitorio VI of the aforementioned Law provided the following:
"TRANSITORIO VI- Judicial employees who, within eighteen months of the enactment of this law, 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, may retire under the provisions established in that text." However, he considers that the objective reasons that justified the right of membership — as stated above — are the same reasons that must justify equal treatment for those who work in the Poder Judicial, and should extend to all employees belonging to the Régimen de Pensiones y Jubilaciones del Poder Judicial, as well as to those who work in the Tribunal Supremo de Elecciones, recognizing a right of membership in accordance with the reasonable threshold of 20 years of contributions to the scheme. He argues that the Transitorio stipulates:
"TRANSITORIO II- Officials of the Tribunal Supremo de Elecciones referred to in Article 242 of Ley N° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, who had been contributing to the Fondo de Jubilaciones y Pensiones del Poder Judicial prior to the entry into force of this law, shall not have this reform applied to their detriment, and their acquired rights in 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 refund of employee, state, and employer contributions made to the Fondo de Jubilaciones y Pensiones del Poder Judicial, so that they may transfer to the Régimen de Pensiones, Invalidez, Vejez y Muerte, administered by the Caja Costarricense de Seguro Social (CCSS), should they so wish" (emphasis in the original brief).
Remember that more than 20 years ago, the Sala Constitucional of the Corte Suprema de Justicia, in voto 2765-97 of 15:03 hours on May 20, 1997, clarified the meaning and scope of certain fundamental legal concepts within the framework of the guarantee enshrined in Article 34 of the Constitución Política, which provides that "no law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights (derechos patrimoniales adquiridos) or consolidated legal situations (situaciones jurídicas consolidadas)." The memorial indicates that in the cited ruling, the Sala Constitucional expressed that vested rights (derechos adquiridos) exist when "something—material or immaterial, whether a thing previously belonging to another or a right that did not previously exist—has entered into (or affected) the patrimonial sphere of the person, in such a way that the person experiences a verifiable advantage or benefit"; it is further noted that good faith (buena fe) is always protected, precisely in order to guarantee legitimate expectations (confianza legítima).
The principle of good faith is of constitutional rank and obligates public authorities—as well as the law itself—to presume good faith in the actions of private individuals; it also implies the obligation of authorities to act in good faith in legal relationships, and the right to expect that others will act in the same manner. It is argued that, in essence, this principle establishes the framework within which the relationships between private individuals and public authorities must be conducted. It is considered that the transitional provision, in the terms in which it was adopted, is entirely discriminatory in distinguishing between members of the Pension and Retirement System (Régimen de Pensiones y Jubilaciones) of the Poder Judicial based on whether they work for the Poder Judicial or for the Tribunal Supremo de Elecciones, and it is maintained that there is no reason, criterion of reasonableness, or criterion of proportionality that would justify the existence of unequal treatment: a) it is argued that, first and foremost, the modification involves a provision of the Ley Orgánica del Poder Judicial that was also applicable to persons working at the Tribunal Supremo de Elecciones, so that the exception must cover all those to whom it previously applied; b) in both cases, the individuals involved are public servants; c) judicial functions are evidently more demanding than the duties of that other body (TSE); d) the transitional provision offers no reason or justification for why the system is maintained for employees of the Tribunal Supremo de Elecciones but not for those of the Poder Judicial; e) there is not the slightest doubt that the persons working in the Poder Judicial have acted in good faith.
It is noted that, if the prior rules are the same for both, then why create this odious distinction? The law offers no justification for the discriminatory treatment and the violation of the principle of equality. On this point, the Sala Constitucional is asked to carry out an interpretation in conformity with the Constitutional Bloc (Bloque de Constitucionalidad) to the effect that Transitorio II of Ley número 9544 also applies to employees of the Poder Judicial with 20 or more years of service, under the same arguments set forth in the transitional provision, which literally states: "shall not be applied to their detriment and at all times their vested rights acquired in good faith shall be respected." 3) Failure to account for gender differentiation in the design of the Pension and Retirement System established by Ley número 9544, in serious and direct violation of the principle of affirmative action (discriminación positiva): it is noted that Article 224 of the Ley Orgánica del Poder Judicial, as amended by Ley número 9544, requires the same retirement age from both male and female judicial employees (servidoras judiciales) in order to access an ordinary pension (pensión ordinaria), establishing for both the completed age of 65 years.
It is stated that, with this measure, the legislators equated two groups that are in a clearly unequal situation due to gender, thereby failing to comply with the principle of equality, which not only requires treating equal situations equally and differentiating what is different, but also mandates the establishment of affirmative measures in situations of disadvantage. It is stated that failing to take into account the particular socioeconomic and labor conditions of women working in the Poder Judicial contravenes the fundamental right to real equality, the right to health, and human dignity, as enshrined in Articles 33 and 21 of the Constitución Política, in that the legislature failed to enact positive action measures (affirmative action) to alleviate the unequal situation of women relative to men. It is recalled that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by the Government of Costa Rica by Ley número 6968 of October 2, 1984, and in force from the date of 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 in the original memorial).
It is further indicated that Article 2 must be cited, which provides:
"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...
And in the same vein, Article 11 is cited:
"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:
(...)
It is noted that the Inter-American Court of Human Rights itself, in Advisory Opinion número 16, established the existence of so-called "real inequalities," which obligates States to adopt compensatory measures that contribute to reducing or eliminating the obstacles and deficiencies that impede or diminish the effective defense of a person's interests; the United Nations (UN) has done the same by maintaining that the principle of equality sometimes requires States to adopt positive measures to reduce or eliminate the conditions that give rise to or facilitate prohibited discrimination against sectors that are evidently in a vulnerable situation; accordingly, both the United Nations and the Inter-American Commission have repeatedly affirmed the obligation of States to grant, in specific situations, preferences relative to the rest of the population in order to correct existing de facto discrimination.
It is stated that, in the case of the challenged law, the legislature violated, by omission, the Constitutional Law (Derecho de la Constitución) by granting equal treatment to two groups that find themselves in entirely different positions. For this reason, it is requested that, by omission, Article 224 of the Ley Orgánica del Poder Judicial, as amended by Ley número 9544, be declared unconstitutional for requiring the same age from both male and female judicial employees in order to access the ordinary pension, establishing for both the completed age of 65 years.
It is noted that the Contralora General de la República expressed this view when she addressed the members of the Comisión Especial and insisted on the need to adopt remedial and preventive measures to guarantee the sustainability of the system, in accordance with the socioeconomic reality of the country and the State's finances, without this translating into a weakening of the Poder Judicial—with regard to the compensation system for judicial employees and the institution's pension system—but clarified that such changes:
"...will be gradual because these matters are complex. As I was saying to don Johnny, one cannot expect to have everyone ideally under the same system from one year to the next; it is very complex and requires gradual implementation and proportionality" (see Minutes of ordinary session number 8 of the Comisión Especial, held on November 16, 2016).
It considers that the failure to provide for progressiveness (progresividad) in the implementation of these changes to the retirement and pension system of the Judicial Branch causes a special harm to a collective of 62%, due to the serious and particular damage already being caused by the strict enforcement of this law upon Judicial Branch employees, who saw their salaries reduced significantly overnight—not only because of the increase in contributions to the regime, but also because of the financing of the Board of Administration. It states that, in that regard, based on the actuarial study prepared by the Universidad de Costa Rica—which in its product 5 provided several criteria, of which the IICE_3 and IICE_4 were not only sustainable but also showed a surplus—it was through official letter 222-P-2017 of July 27, 2017, that Msc. Carlos A. Montero Zúñiga, member of the Superior Council and Coordinator of the Technical Team of the Judicial Branch, requested that the Special Commission contemplate progressiveness in the application of the new regulations to be determined and approved, in the following terms:
"1. The Judicial Branch formally and satisfactorily received the Actuarial Study of the Retirement and Pension Fund prepared by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica, which was developed with the participation of the Judicial Branch's guild conglomerate as part of the Executive Committee that approved the products prepared by the Universidad de Costa Rica.
2. The study presents two actuarial solvency frameworks, IICE_3 and IICE_4, each of which was developed under three scenarios: a pessimistic scenario with a rate of return of 2%, a normal scenario of 3%, and an optimistic scenario of 4%.
Under 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 Master Floribel Campos Solano, Head of the Financial-Accounting Department [sic], which is attached, from the year 2000 to date, the Retirement and Pension Fund has obtained real returns of 4.64%.
All of the foregoing demonstrates that it is possible to work with the 4% scenarios and that the resulting surplus can offset the introduction of gradations that mitigate the negative impact of potential reforms on Judicial Branch employees" (official letter 222-P-2017 and official letter 0406-FC-2017).
It states that Mr. Carlos A. Montero Zúñiga reiterated this request in official letter 223-P-2017 of July 27, 2017; however, compliance with the superior—constitutional—principles of least restriction of rights, equality, and solidarity was not observed, as explained above. In light of this point, it requests that the unconstitutionality of the transitional provisions governing the validity of the prior regime be declared, on the grounds that they are discriminatory for failing to provide for progressiveness in their application.
"Article 226 – For the computation of time worked, it shall not be necessary for officials to have served the Judicial Branch consecutively or in positions of equal rank. All years of remunerated work shall be taken into account, provided that the employee has served the Judicial Branch for at least the last twenty years.
Only time served and contributions made in departments or state public institutions shall be recognized. Under no circumstances may time served in non-state public law institutions of a corporate nature be computed.
If the employee's service was rendered on a part-time basis, the corresponding proportion of that salary shall be recognized.
Any means of evidence shall be admissible to prove the time worked by the employee. In evaluating the evidence, the principle of in dubio pro fondo shall be taken into consideration.
If the interested party had made contributions to other pension regimes established by another department or by another State institution, the Retirement and Pension Fund of the Judicial Branch, at the time of granting the retirement benefit, shall have the right to demand, and the respective institution or department shall be obligated to transfer, the amount of those contributions (employee, employer, and State contributions) by means of an actuarial liquidation (liquidación actuarial).
In the event that the amounts contributed by the interested party, the employer, and the State do not reach the amount owed to the Retirement and Pension Fund of the Judicial Branch, the interested party shall reimburse it for the sum owed by reason of contribution differences, updated to present value using the consumer price index (IPC) as defined by the Instituto Nacional de Estadística y Censos (INEC). Furthermore, the interested party shall pay the average real return that the Retirement and Pension Fund of the Judicial Branch would have obtained had it invested the transferred sums during the recognized period" (emphasis in the original brief).
Additionally, it notes that Article 234, as amended by Law N° 9544, provides in relevant part:
"Article 234 – Persons who have worked in the Judicial Branch and have left their positions without having obtained retirement or pension benefits shall have no right to a refund of the contributions they have made toward the formation of the Retirement and Pension Fund.
However, they shall have the right to have the amount of employee, employer, and State contributions they have made toward the formation of the Retirement and Pension Fund of the Judicial Branch transferred by means of an actuarial liquidation to the Caja Costarricense de Seguro Social (CCSS), or to the institution administering the basic regime under which they will be granted retirement or pension benefits (…)" (emphasis in the original brief).
It states that, from the plain language of the transcribed provisions, it is clearly concluded that it is possible for a State employee who has contributed to the Disability, Old Age, and Death Regime of the CCSS to transfer the amount of their contributions from that general pension fund—protected by the Constitución Política in its Article 73—to the Judicial Branch Regime; the CCSS thus has the new obligation to transfer the amount of those contributions (employee, employer, and State) by means of an actuarial liquidation in favor of the Judicial Branch Fund. It adds that Articles 227 and 233—as amended by the aforementioned Article 1° of Law N° 9455—also relate to the matter, and provide:
"Article 227 – A judicial employee who becomes permanently incapacitated for the performance of their position or employment, as declared by the Disability Assessment Commission (Comisión Calificadora del Estado de Invalidez) of the Caja Costarricense de Seguro Social (CCSS) or by the body that institution designates, and who has worked for five or more years for the Judicial Branch, shall be separated from their position with a permanent retirement benefit. // (…)" (emphasis in the original brief).
"Article 233 – 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, or municipalities.
This limitation shall not apply when the person teaches at institutions of higher education.
When the benefit has been granted on grounds of disability and the person wishes to return to the labor market, they must submit the corresponding request and obtain approval from the Disability Assessment Commission or from the body that the Caja Costarricense de Seguro Social (CCSS) designates, provided that the new activity is different from the one for which the disability was declared" (emphasis in the original brief).
It argues that, with this regulatory framework, competencies were assigned to the "Disability Assessment Commission of the Caja Costarricense de Seguro Social" without consulting it regarding the appropriateness and timeliness thereof, and that the transfer of contributions from the General Pension Regime administered by the Caja Costarricense del Seguro Social was also authorized, as established by the Constitución Política. It considers that, for the foregoing reasons, the challenged law is null for being unconstitutional, since consultation with the CCSS is mandatory in light of Articles 73, 74, 188, 189, and 190 of the Constitución Política, given that, during the legislative process for the said law, the CCSS was not consulted regarding any of the substitute texts approved by the Special Commission during the legislative proceedings—namely those of September 13, 2016 and March 29, 2017—nor regarding the final substitute text approved on July 29, 2017, which received an affirmative majority opinion published in the Diario Oficial La Gaceta, Alcance N° 189 of August 4, 2017.
It considers that, with the foregoing, the mandatory consultation rule required by the indicated constitutional articles was not fulfilled, even though the prior legislative proposals affected the constitutionally assigned competencies of the CCSS as a constitutional body. It argues that the regulatory framework approved within the legislature changed the organization and competencies of an autonomous institution, also taking into account that the reform introduced by the challenged Law may directly and prejudicially affect the Pension Fund administered by the Caja Costarricense del Seguro Social. In addition to the foregoing, the petitioner considers that a further unconstitutionality arises from the failure to conduct the mandatory consultation with the State banks. In this regard, it argues that, on the basis of the mandate of Article 190 of the Constitución Política, the same defect analyzed above is alleged, except that in this instance the omission of consultation occurred with respect to the State banks which, by constitutional norm, are autonomous institutions. It states that this is so because, with the amendment to Article 240 bis introduced by Law N° 9544, the autonomy of the State banks was affected, since that provision reads as follows:
"Said Board is authorized to place the resources of the Retirement and Pension Fund of the Judicial Branch in the following investment possibilities:
The petitioner argues that this provision establishes serious limitations on the administrative autonomy constitutionally exercised by the State banks under the aegis of Articles 188, 189, and 190 of the Constitution, and in that regard asserts that the new rules restrict their lending options by subjecting them to percentage investment obligations that directly affect their autonomy. The petitioner argues that consideration must be given to the fact that decisions in this area are technical in nature and are protected by the banking autonomy regime; however, none of what was regulated, nor its legal, financial, accounting, or other implications, was consulted with the banking entities that make up the National Banking System, and for that reason, in the petitioner's view, this omission renders the entirety of the law null and void for unconstitutionality, as it once again violates the mandate of Article 190 of the Constitution. On the basis of the foregoing, the petitioner requests that the reform approved by Ley 9544 be declared unconstitutional for having directly violated the Constitution by having been approved without consulting the CCSS, the Judicial Branch, or the State banks.
"ARTICLE 207. Amendments to the Rules of Procedure.
Any total or partial amendment to these Rules of Procedure, as well as the interpretation of any of its provisions, requires, in order to be approved, a two-thirds vote of the total membership of the Assembly.
Amendments must be carried out pursuant to the procedure established in Article 124 of the Constitution." The petitioner indicates that the violation or non-compliance with the legislative rules of procedure causes nullity by unconstitutionality of the law, since it constitutes a parameter of constitutionality in the terms established in Article 73 of the Law on Constitutional Jurisdiction, which provides in its literal text:
"Article 73. An action of unconstitutionality shall lie:
The petitioner states that the unconstitutional defect alleged occurred because Article 207 of the Legislative Rules of Procedure was directly violated, and this defect renders Law No. 9544 null and void, since, at ordinary plenary session No. 37 of June 30, 2016, a point of order was considered—via Article 208 bis—with the intention of creating a special procedure for the processing of file 19.922, entitled "Law to Rationalize Public Expenditure"; a point of order that was taken up during the so-called "Second Part of the Plenary Session," and moreover, it is not permissible to approve a special procedure by means of a point of order. The petitioner notes that, for a better understanding of the foregoing, it must be recalled that Article 207 of the aforementioned Rules of Procedure provides, in the relevant part:
"Processing of parliamentary resolutions Bills for the issuance of resolutions concerning the internal affairs of the Assembly, as well as draft resolutions to be adopted in the exercise of the powers enumerated in paragraphs 2), 3), 5), 6), 7), 8), 9), 10), 12), 16), 21), 22), 23), and 24) of Article 121 of the Constitution, must be submitted in writing, signed by the legislator or legislators who introduce or co-sponsor them; or by the Minister of the relevant portfolio, when the bill originates with the Executive Branch. Likewise, they must be read by the Secretariat. The Assembly shall consider and decide upon them without adhering to the procedures set forth in the preceding article. (….)" (emphasis in the brief).
It notes that the foregoing regulatory provision was interpreted by the Presidency of the Legislative Assembly through agreement number 4084, adopted at session number 24 on June 10, 1999, and published in La Gaceta N° 129 of July 5, 1999; on that occasion it established a rigorous procedure for the reform or modification of the Reglamento de la Asamblea Legislativa, not only to safeguard democratic principles, but also the principles of publicity, transparency, and the rights of parliamentary majorities and minorities, so that there would be an opportunity to submit motions that could be heard, then voted upon, and even challenged, by all the deputies comprising the Legislative Assembly, without discrimination or limitation of any kind. It states that reforms to the Reglamento Legislativo are carried out by means of "agreements," so that the special procedure of Art. 208 bis cannot be approved through points of order (mociones de orden) because it constitutes a reform to the Reglamento de la Asamblea Legislativa.
It recalls that the Reglamento de la Asamblea Legislativa, in its article 153, permits points of order "unless this Reglamento expressly prevents it," and that pursuant to article 35 of the Reglamento Legislativo, a rigorous order is established for the agenda (orden del día) of the Legislative Plenary, reserving for the first part of the session, among other matters, the internal governance (régimen interno) of the Legislative Assembly — or, what amounts to the same thing, the interna corporis of the Assembly — precisely to safeguard the constitutional rule of publicity and the protection of the legislators' own rights, such as the right to vote, to debate, to propose amendments, and to participate democratically in a broad, public, and transparent manner; and the second part was reserved — exclusively — for the discussion of bills under first and second debate. It reiterates that the consideration and processing of the motion via Art. 208 bis of the Reglamento de la Asamblea in connection with expediente N° 19.922 ought to have been taken up in the "First Part of the Session," precisely to safeguard the constitutional rule of publicity and the protection of the legislators' rights, such as the right to vote, to debate, and to participate democratically in a broad, public, and transparent manner; conversely, it considers that having done so in the "Second Part of the Session" transgresses article 121, paragraph 22) of the Constitution, inasmuch as article 207 of the Reglamento Legislativo was directly violated.
It adds that the Presidency of the Legislative Assembly, acting in concert with the Fraction Leaders who proposed the points of order, did not comply with the Reglamento Legislativo in order to approve the Art. 208 bis motions processed on that occasion, thereby also violating the provisions of the Ley de la Jurisdicción Constitucional which, in its article 73, paragraph c), conditions the constitutional legitimacy of laws and legislative agreements upon substantial compliance with what is provided "… in the Reglamento de Orden, Dirección y Disciplina Interior de la Asamblea Legislativa." It argues that, in this manner, in the case under study, what was violated was the "legislative procedure" by reason of the principle of parallelism of forms, inasmuch as, through the Art. 208 bis motion, in connection with bill 19.922, the internal process and regulations established by the legislators themselves were flagrantly transgressed — precisely to safeguard democratic principles, respect for minorities, publicity, and transparency — with respect to the processing of the legislative agreement entailed by the approval of said special procedure.
On this basis, it charges a procedural defect that generates the absolute nullity of all actions taken, for infringing the democratic principles of transparency, participation, parallelism of forms, legal certainty (seguridad jurídica), and legitimate expectations (confianza legítima), which must be respected — without any violation — by the Legislative Assembly, since what the legislators did failed to comply with articles 35, 205, and 207 of the Reglamento Legislativo, nor with the Presidency's existing interpretation; thereby violating the democratic principles of transparency, participation, and respect for legislative majorities and minorities enshrined in article 121, paragraph 22) of the Constitution. It states that, for the foregoing reasons, it requests that Law number 9544 be declared unconstitutional for having been approved through a legislative procedure tainted by unconstitutionality, in direct and consistent contravention of the Reglamento de la Asamblea Legislativa.
It reiterates that the processing afforded to the aforementioned Law is null and void for violating the procedure prescribed by Art. 208 bis, and because it simultaneously permitted the approval of a law that created an unequal, disproportionate, confiscatory retirement system (régimen jubilatorio) that renders the right to retirement nugatory, one that does not even meet the minimum standard established under the Invalidity, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social.
It adds that the Special Committee that considered the substantive motions submitted on the bill "Addition of an article 208 bis to the Reglamento de la Asamblea Legislativa, legislative expediente N° 15.751" issued a unanimous affirmative opinion, setting forth the reasons considered in support of the proposal before the Legislative Plenary, and clarifying in unmistakable terms the issue of the voting majority as a determining element for the application of the special legislative procedure — via Art. 208 bis — by providing clearly and unambiguously the following:
"For these reasons, it is considered appropriate to incorporate a new article 208 bis into the Reglamento de la Asamblea Legislativa, the purpose of which is to ensure that in those cases where the will of a majority of legislators converges, it shall be that majority decision that sets the parameters to be followed in each case, expressly excepting from this procedure those bills whose approval requires 38 votes as well as those relating 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 memorial).
It states that, on the basis of the foregoing discussions, the Legislative Assembly approved agreement N° 6231-04-05 on March 8, 2005, the final and currently effective text of which provides:
"SOLE ARTICLE: — The following article 208 bis is hereby added to the Reglamento de la Asamblea Legislativa, to read as follows:
Article 208 bis. — Special Procedures By means of a point of order approved by two thirds of its votes, the Legislative Assembly may establish special procedures for processing reforms to its Reglamento 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 majority required for their approval. Every special procedure must respect the democratic principle and safeguard the right of amendment" (emphasis in the memorial).
It indicates that, from what was expressed by the drafters of the reform bill to the Reglamento de la Asamblea and approved by the Legislative Plenary, it is clearly inferred that the only bills to which Art. 208 bis may be applied — in order to establish an abbreviated and special procedure — are those requiring 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 voting majority required in that subject matter. It states that, in light of the foregoing, the unconstitutionality charged with respect to Law number 9544 arises because Art. 208 bis of the Reglamento de la Asamblea was applied — a provision available only for matters requiring a simple majority vote (one more than half of the legislators present) — without adverting to the fact that, in this matter, a vote adopted by qualified majority was required (a minimum of 38 votes in favor out of the total elected legislators), by reason of Corte Plena having issued a negative opinion on the substitute texts adopted by the Special Committee.
It recalls that, in this regard, pursuant to the mandate of article 167 of the Constitution, in order to depart from the opinion of Corte Plena, the legislators were required to vote on this matter with a qualified majority of 38 votes. It argues that, in article 239 of Law number 9544, the internal structure of the Judicial Branch was modified, as that provision literally states:
"Article 239 — The Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial is hereby created as a body of the Judicial Branch, which shall enjoy full functional, technical, and administrative independence in the exercise of the powers and functions conferred upon it by law.
The Junta shall be responsible for:
Based on the results of the actuarial studies, and with authorization from the Superintendencia de Pensiones, the Junta Administrativa may modify the initial parameters established in this law with respect to eligibility requirements, the benefit profile, as well as the contributions and payments of judicial employees and the retirement and pension benefits provided for in the law, provided that this is necessary to guarantee the actuarial balance of the Regime.
The Board (Junta) shall have instrumental legal personality (personalidad jurídica instrumental) to exercise the powers assigned to it by law, as well as to exercise judicial and extrajudicial representation of the Fund.
It shall be financed by an administrative-expenses commission arising from the deduction of five per thousand from the salaries earned by judicial employees, as well as from the retirement benefits and pensions charged to the Fund. These resources shall be used to pay the per-diem fees of the members of the Administrative Board, the salaries of its staff, and its administrative expenses in general. Idle resources shall be invested in accordance with the provisions of article 237 of this law" (emphasis in the petition).
The petitioner states that, pursuant to the content of this provision, the Administrative Board is situated within the Judicial Branch as an organ "subordinate" to the Full Court (Corte Plena); furthermore, the law endows it with sufficient legal personality for the administration of the fund, thereby authorizing it to act on behalf of the Judicial Branch with respect to the actions of the Judicial Branch's Retirement and Pension Fund. The petitioner warns that this amendment does in fact affect the competence and organization of the Judicial Branch, inasmuch as it creates an internal subordinate unit; moreover, this Administrative Board was granted instrumental legal autonomy vis-à-vis the Court, which excludes it from matters that are properly within the authority of the superior hierarchical head — in this case the Court — within the meaning of articles 102 and 83 of the General Public Administration Law (Ley General de la Administración Pública), to such an extent that it is vested with judicial and extrajudicial representation to act in the name of the Judicial Branch — a legal phenomenon that had not occurred up to that point.
The petitioner notes that constitutional article 167 provided for a prior — and in some sense binding — consultation with the Court regarding the "discussion and approval of bills relating to the organization or functioning of the Judicial Branch"; a criterion that legislators may disregard only by qualified majority vote, that is, two-thirds of all legislators, namely a minimum of 38 votes. In this regard, the petitioner considers it beyond doubt that the Constitutional Chamber has held that consultation with the Judicial Branch is necessary under the terms of article 167 of the Political Constitution whenever its administrative organization is amended — and not solely matters concerning the judicial function — and accordingly considers it appropriate to reference the considerations expressed by the Constitutional Chamber when it stated:
"... that a bill addresses such matters when its provisions contain explicit rules ordering the creation, substantial modification, or suppression of strictly jurisdictional or administrative organs attached to the Judicial Branch, or when it creates ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions ..." (see judgment number 2008-5179 of 11:00 a.m. on April 4, 2008) (emphasis in the petition).
The petitioner considers that constitutional article 167 and the rule set forth in article 208 bis of the Rules of the Legislative Assembly (Reglamento de la Asamblea Legislativa) were violated, inasmuch as a qualified majority was required to disregard the Court's opinion; a defect the petitioner considers incurable and which renders the law unconstitutional and null. c) Unconstitutionality by omission, for failure to publish the finally approved text: the petitioner argues that neither the Special Committee responsible for processing and analyzing the bill in legislative file (expediente) number 19.922, nor the Legislative Plenary, published the substitute texts in the manner prescribed by the special procedure established for this matter; accordingly, in the petitioner's view, the approved law is unconstitutional due to a defect in the legislative process, within the meaning of article 73, paragraph c) of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) in relation to article 121, paragraph 22) of the Political Constitution.
The petitioner notes that at session number 037, of June 30, 2016, the Legislative Plenary considered and approved the Point of Order (Moción de Orden) pursuant to which, by application of article 208 bis of the Rules of the Legislative Assembly — approved by a vote of 49 in favor and 1 against — a special or fast-track procedure was approved for the processing, discussion, and committee report on the bill in expediente 19.922, "Law to Rationalize Public Expenditure" (Ley para racionalizar el gasto público); likewise, the creation of a Special Committee was ordered and entrusted with that task, it being noteworthy that article 2, paragraph h) of that agreement expressly established the obligation — for that Committee — to publish any substitute text it approved during the discussion process, in the following terms:
"h.- If during the consideration of the file in its committee stage a motion for a substitute text is approved, or when the committee agrees upon changes that substantially modify the bill, the Committee Chairperson shall request that the Legislative Directorate (Directorio Legislativo) agree to its publication in the Official Gazette La Gaceta for the purpose of safeguarding the Constitutional Principle of Publicity, and consideration of the bill shall be suspended, with the corresponding consultations also being conducted. If, after eight business days have elapsed, no response has been received to the mandatory consultations referred to in this paragraph h), it shall be understood that the body consulted has no objection to the bill" (emphasis in the petition).
The petitioner adds that on the following September 5, 2016, the Special Committee was constituted for "legislative file 20.035, charged with considering and reporting on the bill: 'Law on Comprehensive Reform of the Various Pension Regimes and Related Provisions, Expediente No. 19.922'", and that from the very first session of this Special Committee — session number 1 — on September 13, 2016, by unanimous vote, the base text for discussion was replaced — now directed solely toward the comprehensive amendment of Title IX of the Organic Law of the Judicial Branch, number 8, of November 29, 1937 and its amendments (first substitute text of legislative file number 19.922) —; a base discussion text that was never published in La Gaceta despite having been substantially modified, which is a matter of simple verification between the original base text — as defined by the Plenary — and the text substituted by the Special Committee.
The petitioner reiterates that this text was not published, as required by the 208 bis point of order that established the procedure, and that this constitutes the first instance of non-publication with respect to the first substitute text approved by the Special Committee. The petitioner further adds that, subsequently, at ordinary session number 15 on Wednesday, March 29, 2017, the Special Committee approved a second substitute text — in this instance, a proposal prepared by SUPEN — which was likewise not published as required by the terms of paragraph h) of article 2 of the 208 bis point of order of the Rules of the Legislative Assembly that established the rules of its procedure. The petitioner adds that, finally, at ordinary session number 23, held on July 27, 2017, the Special Committee approved point of order number 1-23 to waive the reading of the submitted substitute text; immediately thereafter it also approved point of order number 2-23 consisting of the approval of the substitute text, and an affirmative committee report was immediately issued, with 8 votes in favor and 1 against.
The petitioner argues that, once again, publication of this third substitute text — approved and in this case also reported upon — by the Committee was omitted. The petitioner warns that what was published were the reports of the Reporting Committee, not the substitute text, and that, in the petitioner's view, this again violated the provisions of the Political Constitution and the Legislative Rules regarding the procedure that expediente 19.922 was required to follow; the petitioner further notes that this defect could not be cured by the publication of the substitute text after its approval on first reading, because the publication requirement must allow all Costa Ricans to become acquainted with the bill beforehand, so as to speak and express opinions, as is their constitutional right protected by article 124 of the Constitution and article 208 bis of the Rules of the Legislative Assembly, in relation to article 73, paragraph c) of the Constitutional Jurisdiction Law. On this point, the petitioner mentions that in judgment number 2012-4621, the Constitutional Chamber stated, in the relevant part:
"VII.- This Constitutional Tribunal notes that when the Legislative Assembly, by way of a point of order under article 208 bis of the Rules, creates a special procedure, its application and observance must be absolutely rigorous and strict. The special procedure created through article 208 bis is, as such, 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 avoids any infringement of the principles of legal certainty (emphasized by this Tribunal in Voto No. 398-2005 of 12:10 p.m. on January 21, 2005) and democracy. Consequently, in the face of a special and fast-track legislative procedure, the time limits, stages, and previously established requirements must be subject to a restrictive and rigorous interpretation, with the margin of flexibility admissible vis-à-vis ordinary procedures — through expansive interpretations — decreasing markedly so as to avoid an exception to the exception and, in general, any departure from the procedural path created, exceptionally, by an enhanced majority.
VIII.ESSENTIAL PROCEDURAL DEFECT OF AN EVIDENT AND MANIFEST CHARACTER UPON THE OMISSION TO PUBLISH A SIGNIFICANT NUMBER OF SUBSTANTIVE MOTIONS APPROVED IN THE SPECIAL COMMITTEE WHICH, TAKEN TOGETHER, SUBSTANTIALLY MODIFIED THE ORIGINAL BILL. Furthermore, the consulting legislators state that, notwithstanding the stipulations of 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 — changes that diminished the total expectation of the school salary that is exempt from income tax, which covers both public and private sector workers.
Consequently, upon reading the content of the substantive motions approved in the special committee, this Constitutional Tribunal finds, unanimously, that there was an essential procedural defect of an evident and manifest character that infringed upon the principles of publicity and equality, inasmuch as their publication was omitted, given that, taken together, they caused a substantial modification of the original text" (emphasis in the petition).
Accordingly, the petitioner considers that articles 121, paragraph 22) and 124 of the Political Constitution and article 208 bis of the Legislative Assembly Rules were violated, which — in the petitioner's view — renders Law number 9544 absolutely null in its entirety, and therefore requests that the unconstitutionality of the amendment approved by Ley 9544 be declared on the ground that neither the finally approved text nor any of the prior substitute texts was published in the Official Gazette La Gaceta, in application of the procedure approved under article 208 bis of the Rules of the Legislative Assembly; and likewise, on the ground that the Political Constitution was directly violated by its having been approved without the qualified majority of 38 votes required because it involved a reform affecting the Judicial Branch, within the meaning of article 167 of the Political Constitution.
The petitioner states that, for a better understanding, an analysis of the modifications to the substantive elements of the regime must be undertaken, and argues in that regard that the reform introduced to the Retirement and Pension Regime of the Poder Judicial (RJPPJ) through Ley número 9544 produced a disproportion and, consequently, unequal and irrational treatment against active judicial employees, as well as against the pensioners and retirees (pensionados y jubilados) who contribute to said regime, as compared with persons who contribute to the Disability, Old Age, and Death Regime of the CCSS. The petitioner notes that this conclusion is reached after conducting a comparative analysis of the benefits profile for both regimes, and that, without a doubt, the Poder Judicial Regime now proves disproportionate and unreasonable in its effects, in relation to the very high contribution burdens imposed on its contributors (cotizantes) and "beneficiaries," which far exceed those imposed on IVM contributors of the CCSS, compounded by the fact that Poder Judicial employees are required to belong to and remain in a regime throughout their entire working life in that institution.
The petitioner argues that, in the case of the Poder Judicial Regime, at the time of the retirement benefit (jubilación) or pension, the benefits to be received are far lower than those obtained under the IVM, asserting that this is so because 62% of the judicial workforce will receive an income even lower than if they had contributed to the IVM, and the remainder, even though the Poder Judicial Regime may nominally provide a higher pension or retirement benefit, receives a proportionally lower percentage, a situation that recurs due to the very high and burdensome charges imposed by this regime compared to the IVM. The petitioner adds that, with the reform introduced by Ley número 9544, the retirement age was raised to 65 years, with a minimum of 35 years of service and a gross retirement benefit (jubilación bruta) equivalent to 82% of the last 240 salaries received; with these modifications, in principle, the eligibility requirements of the Poder Judicial Regime were equated to those of the IVM of the Caja Costarricense de Seguro Social.
The petitioner argues that it cannot be overlooked that in the former (Poder Judicial), contribution amounts are 4 times higher than the IVM and the benefits are much lower, citing what is established in article 224 of Ley 9544:
"Judicial employees with twenty or more years of service in the Poder Judicial may avail themselves of an ordinary retirement benefit 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" (emphasis in the original brief).
For its part, the petitioner indicates that article 5 of the Reglamento del Seguro de Invalidez, Vejez y Muerte establishes that:
"An 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) monthly contributions (cuotas)" (emphasis in the original brief).
The petitioner considers that a first difference between the two regimes can be quite clearly observed, since, when comparing the eligibility requirements and the number of contributions, judicial employees are required to meet 2 requirements in order to access an ordinary retirement benefit:
unlike persons who contribute to the IVM, where only 300 contributions are required; that is, Poder Judicial employees are required to contribute 40% more than IVM employees in order to access an ordinary retirement benefit. In addition to this, the petitioner mentions that, to calculate the monthly benefit (asignación mensual) in the Poder Judicial Regime, the average salary of the last 20 years is taken into account (same requirement as in the IVM), and 82% is applied to that average, yielding the gross retirement benefit amount, as established by article 224 of Ley 9544 itself; for its part, the IVM calculates the monthly benefit in accordance with what is established in article 5 of the aforementioned Reglamento del Seguro de Invalidez, Vejez y Muerte, 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 for an active worker comprises a basic amount (cuantía básica) as a percentage of the salary or average income indicated in the preceding article, for the first 20 (twenty) years of contributions (240 — two hundred and forty — monthly contributions paid) or however many contributions exist in cases of disability or death, provided the requirements of articles 6° and 18° of this Regulation are met. To place the insured person at the level indicated in the following table, the salary or average income of the last sixty months of contributions, or those available in cases of disability and death, updated for inflation, shall be taken:
| Real Average Salary or Income | Basic Amount |
|---|---|
| Less than two minimum wages | 52.5% |
| Two to less than three minimum wages | 51.0% |
| Three to less than four minimum wages | 49.4% |
| Four to less than five minimum wages | 47.8% |
| Five to less than six minimum wages | 46.2% |
| Six to less than eight minimum wages | 44.6% |
| Eight or more minimum wages | 43.0% |
In both the case of old age and disability, an additional amount equivalent to 0.0833% of the reference salary or average income is included for each month of contributions in excess of the first 240 months." Furthermore, the petitioner asserts that, unlike the system chosen in Ley número 9544, the IVM establishes a benefit for deferral of the pension or retirement under the terms of article 25 of the Regulation, which represents an additional percentage of the pension amount, as follows:
"An insured person who meets the requirements to be entitled to enjoy an old-age pension shall be entitled to an additional pension for deferral of retirement, from the date on which the legal and regulatory requirements have been met. This additional pension shall consist of 0.1333% per month of the average salary calculated pursuant to article 23°.
The amount of the additional pension for deferral of retirement, added to the amount of the ordinary pension calculated pursuant to article 24° of this Regulation, may not exceed 125% of the salary or average income indicated." The petitioner asserts that, when comparing both calculation methods for the monthly benefit amount in each of the analyzed regimes, it is concluded that in the Poder Judicial Regime the average of the last 240 contributions is taken into account and 82% is applied to determine the gross retirement benefit; whereas for the IVM, a basic amount ranging between 43% and 52.5% is considered, to which 0.0833% is added for each month of contributions starting from monthly contribution number 240, the latter serving as a seniority bonus for having contributed beyond the minimum 240 monthly contributions required, plus an additional amount for deferral — since 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.
The petitioner then asserts that, in this way, if a person in the Poder Judicial meets the age requirement (65 years) and the years of service requirement (35 years), they will be entitled to an ordinary retirement benefit 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 benefit 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 of contributions beyond 240, thereby entitling them to 14.994% as a seniority bonus for having made 180 extra contributions, plus 2.9326% in the case of a woman and 2.7993% in the case of a man as recognition for deferral. The petitioner argues that the differences noted are evidenced in the following table, which takes into account the Poder Judicial Pension and Retirement Regime prior to the reform here alleged to be unconstitutional, as well as the reform itself and its comparison with the Disability, Old Age, and Death Regime of the Caja Costarricense del Seguro Social (which, pursuant to judgment number 846-92 of the Sala Constitucional, constitutes a regime containing the minimum social security benefits for workers, permitting the existence of other regimes in the country):
| With the prior regime (repealed pursuant to the 1993 reform) | With the regime under Ley 9544 (new law challenged herein) | With the CCSS Regime |
|---|---|---|
| Fund is sustained by contributions: | Fund is sustained by contributions: | Fund is sustained by contributions: |
| - Active employee, pensioner, and/or retiree: from 9% to 15%, most recently fixed at 11% - Employer: as determined by the Corte - State: 1.24% No additional contribution because the fund was administered by the Consejo Superior | - Active employee, pensioner, and/or retiree: 13% - Employer: 14.36% - State: 1.24% Contribution of 5 colones per 1,000 of salary to finance the expenses of the Junta de Administración created to administer the Fund | - Active employee only: 3% - Employer: 5.08% - State: 1.24% No additional contribution because the fund is administered by the CCSS |
| Conditions for retirement: Presented 3 different frameworks: Option A: - 30 years of service - pension for men and women at age 62 - 100% calculated on the salary of the best last 24 salaries, which with the burdens imposed on pensioners and retirees becomes 84% (not counting income tax payment) Option B: - at age 60 but not meeting the years-of-service requirement: the calculation was made using years of service divided by 30, a percentage applied to the last 24 best salaries, to which the deductions of 11% contribution and 5% insurance were applied, equaling 66%, and income tax payment. Option C: - with 30 years of service but not meeting the age requirement (60 years): the calculation was made using the employee's age divided by 60, a percentage applied to the last 24 best salaries; to that amount the deductions of 11% contribution and 5% insurance were also applied, equaling 66%, and income tax payment. | 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), which, with the charges imposed on pensioners and retirees (pensionados y jubilados), becomes 66.83% (not counting income tax payment) - Judicial employees (servidores judiciales) contribute 40% more than the IVM of CCSS - No recognition for seniority (antigüedad) or deferral (postergación) Retirement conditions:
- years of service - 65 years of age - with 300 contributions (cuotas) - 82% of the average salary for 20 years of service (240 salaries without additional social charges), with a base benefit amount (cuantía básica) between 43% and 52.5% - Recognition for seniority (bonuses) and for deferral, starting from the 240th contribution, with a total of 420 contributions (35 years), which translates to 0.0833% for each additional month of contributions - women: at 63 years and 2 months - men: at 63 years and 2 months Ceiling: regulates the minimum to be received - no pension may be less than one-third of the last salary of the employee as established in the State's expenditure budget for the year in which payment is made Ceiling: regulates the maximum to be received:
Up to 10 times the lowest salary in the Judicial Branch Ceiling:
¢1,548,189.00 colones Obligations of pensioners and retirees:
- contribution to the scheme: 11% (with the possibility of reaching 15%) - payment of the CCSS health insurance (seguro de enfermedad) (5%) - income tax payment Obligations of pensioners and retirees:
- contribution to the scheme: 13% - payment of the CCSS health insurance (5%) - income tax payment - solidarity contribution (aporte solidario) once the ceiling is exceeded: from 35% to 55% Pensioners and retirees of the CCSS scheme:
- no contribution to the scheme - no health insurance payment - no income tax payment Proportional pension (pensión proporcional):
- minimum 10 years of service to the institution, for a given period: half the time served Proportional pension:
Option A:
- if the employee completes 35 years of service but has not yet reached 65 years of age, a minimum age is established: 62 years for men and 60 years for women - the pension to be received by women ranges between 61.68% and 65.79% depending on age; from this amount, contributions to the scheme, health insurance, financing of administrative costs, and income tax must be deducted - the pension to be received by men ranges between 63.74% and 65.79% depending on age; from this amount, contributions to the scheme, health insurance, financing of administrative costs, and income tax must be deducted Option B:
- at 65 years of age but without the 35 years of service to the institution, with a minimum of 20 years of service to the institution - does not allow transfer of scheme from the Judicial Branch to IVM of CCSS - does allow scheme transfer, but only at the time of retirement, and the excess amount is transferred to the ROP Proportional pension:
No recognition for seniority No recognition for seniority Does recognize seniority The document states that, based on the regulations governing the Judicial Branch Scheme and the preceding table, the following premises are evident in its opinion:
Benefit Amount: Judicial Branch Scheme (RJPPJ) vs. CCSS Scheme (RIVM) 65 years of age with 35 years of service Pension Estimate RJPPJ RIVM Base Benefit Amount 82% 43% to 52.5% Less: Contribution to the Fund 10.66% None Less: Administrative expenses 0.41% None Less: Health insurance contribution 4.1% None Plus: Seniority bonus None 14.994% Plus: Deferral bonus None 2.9325% if female 2.7993% if male Total benefit amount 66.83% 60.9266% to 70.4266% for women 60.7933% to 70.2933% for men The document states that the foregoing means that there are cases where the IVM pension is higher than that of the Judicial Branch Scheme, since IVM would grant, net, a higher benefit amount — according to the table in Article 24 of the IVM Regulations — and these would precisely be those persons with 5 or fewer minimum wages in the last 5 years of service, which, to date, according to information from the CCSS website, amounts to ¢251,801.00 colones; that is, based on Article 24 of the IVM Regulations, these would be persons with an average salary in the last 5 years of less than ¢1,259,005.00.
The document argues that, given that the timeframe is so long (20 years) for referencing the pension amount, it actually reflects the salaries throughout an employee's working life, ensuring that the pension corresponds to what was contributed; but at the same time, this methodology yields an average much lower than the last salaries, since normally throughout a person's working life they receive promotions, category advances, or other employment and salary changes, which is why it would be erroneous to reference the person's last salary without knowing their salary history. The document contends that, despite this, what can be observed is that, currently, according to official data provided by the Judicial Branch's Human Resources Management Department (Departamento de Gestión Humana del Poder Judicial), approximately 62% of workers earn less than said salary (¢1,259,005.00), which suggests that a percentage of workers far exceeding that figure would have retirement benefit amounts lower than those granted by IVM, if one takes into account that the reference amount would be the average of the last 240 salaries and not the current salary.
The document explains that in the following comparative tables of the gross and net monthly allocation of both schemes, the decrease in net allocations granted to contributors under the Judicial Branch Scheme is clearly visible, even though they contribute 4 times more than those under the IVM Scheme.
Table No. 1 Average Salary of ¢500,000 colones 65 years of age and 35 years of service Pension Scheme (Régimen) Average of the last 240 salaries (Promedio últimos 240 salarios) % Gross benefit (Asignación bruta) Illness and Maternity (5%) (Enfermedad y Maternidad (5%)) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 (Contribuciones y rebajos al Fondo de Pensiones (13%) + 5 x 1000) Income Tax (Impuesto de Renta) Net benefit (Asignación Neta) Poder Judicial ¢500.000 82% ¢410.000 ¢20.500 ¢55.350 ¢ 0 ¢334.150 IVM (female) (male) ¢500.000 ¢500.000 70,4226% 70,2893% ¢352.133 ¢351.466 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢352.133 ¢351.466 Difference:
Female Male - ¢17.983 - ¢17.316 The RIVM percentage is calculated as follows:
0. Female: 52.5% (base amount (cuantía básica)) + 14.99% (seniority bonus (bonificación por antigüedad)) + 2.9326% (deferral bonus (bonificación por postergación)) 1. Male: 52.5% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 2 Average Salary of ¢750,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢750.000 82% ¢615.000 ¢30.750 ¢83.025 ¢ 0 ¢501.225 IVM (female) (male) ¢750.000 ¢750.000 68,922% 68,789% ¢516.950 ¢515.950 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢ 0 ¢516.950 ¢515.950 Difference:
Female Male - ¢15.725 - ¢14.725 The RIVM percentage is calculated as follows:
0. Female: 51% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 51% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 3 Average Salary of ¢1,000,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢1.000.000 82% ¢820.000 ¢41.000 ¢110.700 ¢ 0 ¢668.300 IVM (female) (male) ¢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:
Female Male - ¢4.966 - ¢3.633 The RIVM percentage is calculated as follows:
0. Female: 49.4% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 49.4% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 4 Average Salary of ¢1,500,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢1.500.000 82% ¢1.230.000 ¢61.500 ¢166.050 ¢ 44.650 ¢957.800 IVM (female) (male) ¢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:
Female Male + ¢12.190 + ¢13.990 The RIVM percentage is calculated as follows:
0. Female: 46.2% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 46.2% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 5 Average Salary of ¢2,000,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢2.000.000 82% ¢1.640.000 ¢82.000 ¢221.400 ¢ 106.150 ¢1.230.450 IVM (female) (male) ¢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:
Female Male + ¢54.848 + ¢57.114 The RIVM percentage is calculated as follows:
0. Female: 43% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 43% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) Table No. 6 Average Salary of ¢3,000,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢3.000.000 82% ¢2.460.000 ¢123.000 ¢332.100 ¢ 229.150 ¢1.775.750 IVM (female) (male) ¢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:
Female Male + ¢329.940 + ¢329.940 1. The RIVM percentage is calculated as follows:
0. Female: 43% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 43% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) 2. At this average salary, the IVM Scheme caps the pension at ¢1,548,189.00, which is adjusted every six months.
Table No. 7 Average Salary of ¢4,000,000 colones Age 65 and 35 Years of Service Pension Scheme Average of the last 240 salaries % Gross benefit Illness and Maternity (5%) Contributions and deductions to the Pension Fund (13%) + 5 x 1000 Income Tax Net benefit Poder Judicial ¢4.000.000 82% ¢3.280.000 ¢164.000 ¢442.800 ¢ 352.150 ¢2.321.050 IVM (female) (male) ¢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:
Female Male + ¢865.240 + ¢865.240 1. The RIVM percentage is calculated as follows:
0. Female: 43% (base amount) + 14.99% (seniority bonus) + 2.9326% (deferral bonus) 1. Male: 43% (base amount) + 14.99% (seniority bonus) + 2.7993% (deferral bonus) 2) At this average salary, the IVM Scheme caps the pension at ¢1,548,189.00, which is adjusted every six months.
The document goes on to state that, from the foregoing comparison, the following conclusions can be drawn:
By way of example, it is noted that if a person joins the Poder Judicial at age 18 and remains until age 65 (the date at which retirement may be taken), that person will have contributed to the fund for a total of 47 years but would receive the same benefits as a staff member who begins working at age 30; in other words, their contributions would serve to subsidize those who work for the institution for a shorter period and, consequently, contribute less to the fund. It is acknowledged that the Retirement and Pension Scheme of the Poder Judicial required adjustments to ensure the sustainability of current and future benefits, and that it was the judicial workforce itself — represented by what was called the "Frente Gremial" — that had raised, over the course of several years, the importance of making such adjustments, even proposing a balanced legislative bill tailored to the needs of all parties involved; however, the view expressed is that the scheme as adopted does not address the variables and principles governing the field of social security, as evidenced by the conclusions of the study conducted by actuary (actuario matemático) Esteban Bermúdez, who concluded:
Conclusion 1. The pension calculation formula of the Poder Judicial does not include seniority-based recognition such as the seniority bonus and the deferral bonus — which does not incentivize workers to remain employed longer — and this generates an increase in fund liabilities (pasivos de fondo) and lower pension amounts; moreover, in order to attain an entitlement to an ordinary pension under the Poder Judicial Scheme, 40% more contributions are required than under the IVM — that is, 10 additional years of service.
Conclusion 2. Approximately 62% of Poder Judicial workers earn salaries below ¢1,259,005.00, which would generate, for that population, retirement entitlements lower than those granted by the IVM, assuming that figure represents the average salary over the last 240 months.
Conclusion 3. The Reform of the Poder Judicial Scheme generates pensions similar to those of the IVM Scheme; however, for the lowest-paid workers of the Poder Judicial, these pensions could end up being lower than those of the IVM, meaning that the reform is neither attractive, nor competitive, nor financially worthwhile for these workers.
Conclusion 4. Under the current pension-granting structure, early retirement before age 62 is incentivized, which generates an increase in the actuarial liabilities (pasivos actuariales) of the Retirement and Pension Fund of the Poder Judicial.
Conclusion 5. A tripartite contribution (cotización) of 28.6% for the Judiciary Pension Scheme (Régimen del Poder Judicial) and 13% for the worker are 281.5% and 338.5% higher, respectively, than their IVM counterparts, even though for the majority of judicial workers their pension will be lower than that granted by CCSS; that is, there is no relationship — or the relationship is disproportionate — between the amount contributed and the pension to be granted. The petitioner states that, this being the case, the principles of both intergenerational (inter generacional) and intragenerational (intra generacional) solidarity are broken at the point when the worker may withdraw the funds, as if support for the pensioned population did not exist; furthermore, given their parafiscal (parafiscal) nature, contributions cannot be considered part of the worker's personal estate but rather of the collective, with a defined purpose, and therefore the transfer of contributions to a private, individual fund (fondo) runs counter to the purpose for which those contributions were created.
The petitioner notes that expert Esteban Bermúdez Aguilar stated:
"To conclude this analysis, the combination of the low or similar benefits provided by the current reform along with the possibility of transferring IVM contributions — with the corresponding privatization of the contribution differential when transferred to the ROP — opens a sinister possibility whereby workers, upon reaching the required contributions in IVM, may decide to resign from the Poder Judicial, work independently, contribute to IVM for a set period of time, request a transfer, and thereby access an IVM pension but with a larger ROP component, generating a higher supplementary pension at the expense (sic) of weakening the RJPPJ fund." The petitioner adds that this professional warned that "Currently, IVM does not require minimum membership periods in that scheme in order to transfer contributions." The petitioner states that the Retirement and Pension Scheme (Régimen de Jubilaciones y Pensiones) of the Poder Judicial, as defined in Law No. 9544, rewards higher-salary positions with a relatively better pension and grants lower-value pensions to the lower-salary positions held by the majority of Poder Judicial workers; consequently, a much smaller benefit is established — as shown in the tables included in the record — for the lowest-ranked positions in the Poder Judicial than those workers would have received had they contributed to the Invalidity, Old Age, and Death Scheme (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense del Seguro Social, while a privileged status is maintained for high-management positions within the institution.
The petitioner argues that this violates the social security principles of redistribution and solidarity in pensions, understood as the manner in which a pension scheme distributes saved amounts among its members in a way considered fair or appropriate; accordingly, the petitioner considers that in this specific case an unequal and discriminatory scheme has been created. b) Lack of strict proportionality in the provisions approved in Ley 9544: the petitioner considers that there is a further violation of the principles of reasonableness and proportionality, inasmuch as at the time proceedings were initiated and the reforms to the Poder Judicial Retirement and Pension Scheme were being discussed, none of the proposals before the Legislative Assembly included technical studies; rather, the contracting process for actuarial studies to be carried out by the Instituto de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica was still under way.
However, the petitioner considers it necessary to clarify that the actuarial work carried out by that Institute (de Investigaciones de Ciencias Económicas de la Universidad de Costa Rica) did not examine any of the substitute bill texts (textos sustitutivos) that the Special Commission (Comisión Especial) first adopted for deliberation, nor did it examine the final version voted upon by the Legislative Plenary (Plenario Legislativo) that is today Law No. 9544. The petitioner notes that the actuarial study addressed only the prior factors of the economic, financial, and accounting sustainability of the fund, but not the consequences that its approval would have for the scheme's employees and contributors, in complete disregard of the constitutional principles and constitutional law governing this matter — namely, solidarity, fair redistribution, and equality — and that, under this premise, the IICE made its own reform proposal.
The petitioner notes that at regular session No. 23, held on July 27, 2017, the Special Commission granted a hearing to the Instituto de Investigaciones de Ciencias Económicas in order to attempt to justify the latest proposal (the third substitute bill) that was ultimately approved and reported out by that Commission in that same session; in its response, IICE warned of certain changes to the essential elements, once again addressing only the sustainability of the scheme, with the result that only the supposed financial soundness of the fund — which is not actually sound — prevailed, at the expense of the onerous contributions borne by those enrolled in this scheme. The petitioner notes that the complaints regarding the harmful effect the reform would have on 62% of Poder Judicial employees were not addressed; a percentage that is conservative given the pension calculation base in the challenged law and may therefore be higher.
The petitioner argues that these restrictions and limitations do not meet the criteria of utility, least impairment, and strict proportionality — which are the criteria for evaluating and weighing the system of limitations on fundamental rights — as developed by the Constitutional Chamber (Sala Constitucional) in its judgments 3550-92, of November 24, 1992, and 4205-96, of August 20, 1996; this, in the petitioner's view, makes the reform excessive and arbitrary, and the most serious matter of all is that the law fails to achieve the stated purpose that supposedly motivated its adoption, which was to modify the scheme to make it sustainable and robust and to eliminate luxury pensions. The petitioner argues that, to the contrary, the reform has harmed the general body of Poder Judicial workers, who have seen their salaries, pensions, and retirement benefits substantially reduced; while luxury pensions have been maintained.
The petitioner recalls that both the Constitutional Chamber and the International Labour Organization (Organización Internacional del Trabajo) hold the view that modifications to the pension system must be grounded in technical criteria; notwithstanding the foregoing, the petitioner asserts that Articles 224 and 224 bis of the challenged reform lack such criteria for increasing the pension calculation ceiling from 10 to 20 years. The petitioner notes that the Constitutional Chamber has annulled laws for lacking technical criteria: judgment No. 2011-6805, of May 27, 2011, in which subsection k) of Article 131 of the Ley de Tránsito por Vías Públicas Terrestres was annulled; judgment No. 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 judgment No. 2011-13436, of October 5, 2011, in which Article 3.7 of Decreto Ejecutivo 35748-MP-MINAET-MIVAH was annulled.
The petitioner states that the Constitutional Chamber has declared that laws may be annulled if they suffer from the defect of irrationality and disproportion between means and ends. The petitioner identifies the criteria derived from case law for declaring a law unconstitutional as follows:
The petitioner states that respect for these criteria allows for subsequent assessment of the constitutionality of regulatory provisions, since the limitation imposed by law will represent the best alternative among others that would be more burdensome to citizens' rights. The petitioner notes that in judgment No. 08858-98, the Constitutional Chamber developed those concepts with regard to general-character provisions 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 makes direct reference to the existence of a factual basis that makes it necessary to protect some good or set of goods belonging to the collective — or to a specific group — through the adoption of a differentiating measure. That is to say, if such 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, for its part, involves a judgment as to whether or not the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The suitability of the measure would indicate that other mechanisms may exist that better address the existing need, and some of them may be capable of achieving the proposed purpose without restricting the enjoyment of the right in question.
Proportionality, for its part, calls for a necessary comparison between the purpose pursued by the act and the type of restriction that is or is intended to be imposed, such that the limitation is not markedly greater in scale than the benefit intended to be obtained for the collective. Of the latter two elements, it might be said that the first is based on a qualitative judgment, while the second proceeds from a quantitative comparison of the two objects analyzed." (Emphasis in the original brief.)
The petitioner states that the Constitutional Chamber has defined these concepts of rationality and proportionality broadly, in reference to possible legislative excess in the regulation of freedoms, and therefore considers that the reform fails to meet these criteria of reasonableness and proportionality, because it created a lower pension for 62% of Poder Judicial employees without a technical justification and in direct contravention of the constitutional principles governing the right to a pension. The petitioner concludes the brief by requesting that the unconstitutionality of the reform approved by Ley 9544 be declared for its effects (art. 3 de la LJC); because the pensions of judicial employees will be lower than the IVM pensions of CCSS, as a result of excessive, arbitrary, and abusive contribution burdens; likewise, for lack of strict proportionality, given that the challenged law is manifestly disproportionate, confiscatory, and unequal, in that it establishes a scheme that, for the majority of the Poder Judicial workforce (62%), is inferior to the minimum of the IVM scheme of the Caja Costarricense del Seguro Social, while the burdens imposed — on both active employees and pensioners and/or retirees — are excessive, reaching as much as four times more. As the general claims of this constitutional challenge (acción de inconstitucionalidad), the petitioner presents:
It states that on that occasion, the study was assigned to former Magistrate Carlos Chinchilla Sandí, and the report was taken up at Corte Plena session number 9-17 held on April 24, 2017, Article XXIX, at which it was agreed to bring it to the attention of the Special Committee on File No. 19.922 of the Legislative Assembly, with the express indication that the Court issued a negative opinion and opposes the consulted bill, because it affects the organization and functioning of the Judicial Branch (emphasis in the official letter). It argues that the agreement was communicated to the Legislative Assembly through official letter of the General Secretariat of the Court, number SP-118-17 of April 26, 2017. As the final background item, it indicates that through official letter number AL-20035-OFI-0043-2017 of July 31, 2017, received that same day, the Legislative Branch submitted a consultation regarding the Affirmative Majority Opinion (Dictamen Afirmativo de Mayoría) of July 27, 2017, with respect to the text of the aforementioned bill.
It states that the report was taken up at Corte Plena session number 26-17 held on August 7, 2017, Article XXX, and the agreement was communicated through official letter of 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 likewise made to the Legislative Assembly in the following terms: "The Court issues a negative opinion and opposes the consulted bill, as it affects the organization, structure, and functioning of the Judicial Branch" (emphasis in the report).
Furthermore, with respect to the established percentage, it indicates that it is necessary to take into account that judicial employees (personas servidoras judiciales), at the time of taking retirement, continue to contribute to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) with an employee contribution (aporte obrero) of 13% pursuant to Article 236 of the challenged regulations, unlike other retirement and pension systems, which is why the amount of their pension would be reduced, and moreover other deductions must be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund, created pursuant to Article 239 of the cited regulations, which establishes a commission for administrative expenses of 5 per 1,000 of the salaries earned by judicial employees, as well as of the retirements and pensions charged to the fund, which could be viewed as confiscatory (Constitutional Article 40) or as a violation of the principle of non-retroactivity of the law (Constitutional Article 34), given the existence of vested and consolidated patrimonial rights (derechos patrimoniales adquiridos y consolidados) under a prior law. It argues that, in connection with the foregoing, the report approved by Corte Plena at session number 26-17 of August 7, 2017, Article XXX, stated the following:
"This Court reiterates that it has been and will remain respectful of the technical studies issued to promote the sustainability of the Fund; however, it cannot be ignored that fundamental rights are at stake, and it is for that reason that the reform also deserves a study grounded in actuarial methodology but also with a human rights perspective.
In that regard, it is worth highlighting that ILO Recommendation No. 43, 'Recommendation Concerning Old-Age, Invalidity and Survivors' Insurance,' at point 13, subparagraphs (a) and (b), states that:
'(a) In order to secure to workers an old age free from want, the pension should cover essential needs. It is desirable therefore that the pension guaranteed to any pensioner who has completed a specified qualifying period should be fixed with due regard to the cost of living.
(b) In schemes with contributions proportionate to wages, insured persons who have paid contributions corresponding to the average length of the active working life should receive a pension commensurate with their social position during the period of professional activity. To this end, the pension guaranteed to insured persons with thirty effective years of contributions on record should not be less than half the insured wage from the time of entry into insurance or during a specified period immediately preceding the liquidation of the pension (Emphasis ours).
It is therefore clear that both ILO Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that retirement and pension benefits must satisfy the essential needs of persons in their old age, such that the amount must be set taking into account the "cost of living and the social position during the period of professional activity." That is to say, the standard of living that the worker enjoyed during his or her active professional life must be respected.
The need to reform the Retirement and Pension Fund in order to promote sustainability is not unknown; however, such reforms must be clothed in suitability and reasonableness, as indicated by the Constitutional Chamber (Sala Constitucional) in vote number 2010-1625 of 9:30 a.m. on January 27, 2010, when it declared unconstitutional the pension cap established in Article 234 of the Organic Law of the Judicial Branch. This is consistent with what the Inter-American Commission on Human Rights stated when, in analyzing the admissibility of the case 'Admissibility and Merits — Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social and Others v. Peru' (1), it outlined that Article 26, as mentioned, does not exclude the possibility that a State may impose certain restrictions on the exercise of the rights incorporated in that provision, provided that a joint analysis has been carried out of the individual impact on the right (in this case, to retirement and pension) in relation to the collective implications of the measure." b) It states that, on the other hand, with respect to Article 225 of the challenged regulations, a retirement cap is established that may not exceed 10 times nor fall below one-third of the base salary (salario base) of the lowest-paid position in the Judicial Branch, such that the provision failed to anticipate that the imposed cap should be applied after the legally required deductions and contributions that retired persons continue to make for the sustainability of the Judicial Branch retirement fund are carried out, including the contributions and the commission for administrative expenses. It argues that, as with the previous point, this was discussed by Corte Plena during the consultation of bill number 19.922, and with respect to that article, the following was stated:
"The text under study provides in Article 225 that no pension may exceed 10 times the base salary of the lowest-paid position in the Judicial Branch, nor fall below one-third of that same reference, which amounts to approximately four million thirty thousand colones (¢4,030,000); however, it is not indicated that this amount will be the imposed cap after the legally required deductions, including income tax, have been made. If that is not the case, and the legal deductions are applied to the amount of four million colones, in accordance with ILO Convention No. 102, this could be deemed confiscatory, since in addition to the cap imposed, the deductions of eleven percent (11%) monthly contribution made by both active and retired contributors, 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 worst-case 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 benefit, which would result in a deduction of nearly half of the pension entitlement (haber jubilatorio), a course of action contrary to the conventional provisions permitting a reduction of said benefit.
Note that both the aforementioned Convention and Recommendation No. 43 of the International Labour Organization are consistent in establishing that the retirement or pension benefit must satisfy the essential needs of persons in their old age, such that the amount must be set taking into account the 'cost of living and the social position during the period of professional activity.' That is to say, the standard of living that the worker enjoyed during his or her active professional life must be respected.
That regulatory framework is considered to be something that must be taken into account when imposing caps and tax burdens on the pension entitlement, in order to avoid future unconstitutionalities that would be detrimental to the law that may eventually be enacted and thereby jeopardize the sustainability of the Judicial Branch Retirement and Pension Fund.
The Constitutional Chamber already indicated in vote number 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, that if a cap on a retirement or pension benefit is to be set, it must be grounded in technical and actuarial criteria. In that regard, that Constitutional Court stated:
"In the present case, the legislature chose to establish a cap (tope) as a social welfare measure, which may be considered valid and necessary, as set forth above, to guarantee the funds of the pension system grounded in the principle of social solidarity. However, that very decision lacks the requirements of suitability and strict proportionality. On one hand, although the subordinate or self-employed worker contributes (cotiza) throughout his or her entire working life a given percentage affecting the totality of his or her income, there is no explanation whatsoever to justify why that particular cap—and not a different one, or that one in preference over others—is the one that must be chosen. Such justification is even more necessary and indispensable when there are individuals who, having contributed double, triple, quadruple, or even more times than others, are all ultimately subject to the same maximum retirement benefit amount. In that regard, it should be noted that when the legislature set a Legislator's (Diputado's) salary as the benchmark for the cap applied to Poder Judicial employees, it did not indicate the reasons for choosing it—an explanation that should have been grounded in technical and, especially, actuarial criteria justifying the decision adopted, and not merely in the need to impose a limit" (emphasis from the report).
It reports that the conclusion reached regarding that article is that it is not sufficient to impose a retirement pension cap (tope jubilatorio) merely on the pretense of placing a limit on the highest pensions; rather, the cap must be suitable and proportionate and must rest on a technical and legal explanation justifying the reduction of the benefit. Such a reduction must be adequate in the case of retirement pensions arising from contributions that are three or four times greater than those of other contributors; otherwise the cap would once again become unconstitutional, with the risk that such a prerequisite would again be found lacking. It adds that, to avoid this, the report proposed adding the phrase "luego de las deducciones de ley y renta" in order to comply with the applicable conventional framework and constitutional analysis, but that this was omitted from Ley 9544. It argues that, for a better assessment, it is relevant to quote an excerpt from the report which states, insofar as pertinent:
"(…) Regarding this solidarity tax (impuesto solidario), it is considered that, being a tax burden, the constitutional principles governing tax matters must be respected, such as the principles of legal reservation, proportionality, economic capacity, and non-confiscation, among others. Among these, it is of particular interest to highlight the principle of non-confiscation in relation to the right to property and what the Sala Constitucional stated in sentencia 2657-2001 of fifteen hours and fifteen minutes of the fourth of April of two thousand and one, which provides:
"IV. On the argument that the tax is confiscatory: The State may take a proportionate share of the income generated by an individual to defray its expenses, but only insofar as it does not nullify property as such, as would be the case if the tax were to absorb the income entirely. If the Constitution protects the right to property over the entire patrimony, it cannot be recognized or admitted that other provisions destroy it. Thus, in order 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 disposition, and prohibits confiscation, so that a taxation measure going beyond what is reasonable and proportionate cannot be permitted (…) a tax is considered confiscatory if it exceeds the economic or financial capacity of the taxpayer, or if the tax absorbs a substantial portion of the taxed transaction (…)" (Emphasis in original).
Therefore, special care must be taken with any reductions imposed so that they do not prove confiscatory, for as stated above, beyond this solidarity contribution, it must not be overlooked that, as explained, an ordinary retirement pension (jubilación ordinaria) set at eighty-five percent (85%), which bears the statutory charges of fifteen percent (15%) as a contribution to the Fund, five percent (5%) to the CCSS system, and fifteen percent (15%) as income tax, already sustains a reduction of fifty percent (50%) of the salary that the retired person was earning while actively employed (this without taking into account that the calculation is not based on the current salary but on a prorated average of the last twenty years of service).
A situation that is equally applicable to those pensions already granted and enjoyed, since those pensioners currently bear tax charges ranging from thirty-one (31) to thirty-five percent (35%) of the total entitlement, which, added to the lowest rate of the solidarity quota (cuota solidaria)—twenty-five percent (25%)—yields a total of sixty percent (60%), which becomes confiscatory and disproportionate, and consequently unconventional and unconstitutional (…)" (emphasis from the report).
It reports that this has resulted in the Poder Judicial currently having judicial employees with prolonged medical disabilities awaiting an assessment by the Comisión Calificadora of the Caja, without their situation having yet been resolved due to that commission's lengthy waiting lists. It notes that Corte Plena, in session number 26-17 held on August 7, 2017, agenda item XXX, had opposed that change, and the approved report stated the following:
"This regulation is considered to make an unnecessary referral to a body of a decentralized entity such as the Caja Costarricense de Seguro Social (CCSS), since the institution has a specialized technical body for this analysis; therefore, reference should be made to an internal body and not to the Comisión Calificadora del Estado de Invalidez of the Caja Costarricense de Seguro Social.
Note that the Régimen del Poder Judicial also belongs to the so-called 'First Pillar' and replaces that of the CCSS, so it is not correct from an organizational standpoint to delegate that function to an autonomous and decentralized institution.
In any event, the Consejo Médico Forense is the final review body for the actions of the CCSS's qualifying medical body within judicial social-security proceedings, and for the reasons stated it is therefore considered that the article in question must be amended" (emphasis from the report).
"III. On the nature of the Fondo de Jubilaciones y Pensiones del Poder Judicial.- For this Tribunal, the retirement and pension system of the Poder Judicial consists of a pay-as-you-go system (régimen de reparto), in which contributions from both workers and former employees converge together with public funds arising from contributions by the Poder Judicial as employer and by the State itself. Ergo, the nature of this social welfare system falls, on one hand, within the domain of social security law, and on the other, within public law by virtue of the statutory nature of the relationship between public servants and the State. That being so, it is evident that the system in question has exactly the same characteristics as a social security fund, as may be inferred from reading Article 73 of the Constitución Política (…)
In sum, the Fondo de Jubilaciones y Pensiones del Poder Judicial is constituted for the benefit of judicial workers, is financially sustained through a tripartite compulsory contribution system involving the State, the Poder Judicial as employer, and judicial employees and retirees, and has as its purpose the protection of the latter from contingencies such as old age, disability, or death. The elements necessary to regard the Fondo de Jubilaciones y Pensiones del Poder Judicial as a pay-as-you-go social security system are present, which necessarily implies that it must be governed in accordance with the provisions of the Constitución Política and the principles informing social security systems (sentencia número 2011-10513, of fifteen hours and one minute of the tenth of August of two thousand and eleven. In the same vein, sentencia número 2012-004108, of fourteen hours and thirty minutes of the twenty-seventh of March of two thousand and twelve)." e) Article 236 bis establishes the "Contribución especial, solidaria y redistributiva de los pensionados y jubilados," and the Corte, at first, in session number 29-16 held on September 26, 2016, agenda item XXVIII, opposed the way in which that contribution was presented in the first text consulted, stating that:
"The Corte opposes the wording of this provision. It should be emphasized that this contribution, today called the solidarity contribution (contribución solidaria), is already implemented in the current system: retirees and pensioners of the Poder Judicial continue to contribute to the system the same percentage as active workers, currently eleven percent (11%).
Any additional solidarity contribution must build upon this percentage already being paid. It must also be borne in mind that retirees and pensioners of the Poder Judicial system, in addition to this mandatory eleven percent (11%) contribution to the Fondo de Jubilaciones y Pensiones, must also contribute five percent (5%) to the CCSS Seguro de Enfermedad y Maternidad, and likewise pay income tax, the brackets for which range between ten percent (10%) and fifteen percent (15%), according to the ceilings set by the Ministerio de Hacienda.
It should be noted that those belonging to the Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social do not continue contributing to the system nor do they pay the corresponding Seguro de Enfermedad y Enfermedad (sic).
"For this reason, the solidarity contribution (aporte solidario) may not exceed 20%, considering that 11% has already been contributed, since otherwise the total deductions would be confiscatory and would violate the international and constitutional norms established on this matter" (emphasis in the report).
It adds that, likewise, in a second consultation held during session number 26-17 of August 7, 2017, Article XXX, it was reiterated that with regard to the solidarity tax (impuesto solidario), given that it constitutes a tax burden, the constitutional principles governing tax matters must be respected, such as the statutory reservation principle (principio de reserva de ley), proportionality (proporcionalidad), economic capacity (capacidad económica), the non-confiscatory principle (no confiscatoriedad), and others. It adds that it was also noted that, among all those principles, the non-confiscatory principle is of special interest in relation to the right to property and to what was set forth by the Constitutional Chamber (Sala Constitucional) in ruling 2657-2001 of 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 share of the income generated by a private individual to cover its expenses, but only insofar as it does not nullify property as such, which would be the case if the tax were to entirely absorb the income. If the Constitution protects the right to property over the full estate, other provisions cannot be recognized and accepted if they would destroy it. Thus, in order to be constitutional, taxes must not undermine other fundamental rights; the Constitution guarantees the inviolability of private property, as well as its free use and disposal, and prohibits confiscation, so a tax measure that goes 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 the penalty of confiscation, it is indisputable that a tax cannot be such as to render those guarantees illusory. It can, however, be established as a principle that a tax is considered confiscatory if it exceeds the taxpayer's economic or financial capacity, or if the tax absorbs a substantial part of the taxed transaction (…)" (emphasis in the report).
It states that a formal request was made to the legislature to exercise special care with the reductions imposed so that they would not prove confiscatory, since, in addition to this solidarity contribution, it should not be overlooked that an ordinary pension set at 85%—the percentage indicated in the text under consultation at that time—which bears the statutory charges of 15%—the percentage indicated in the text under consultation at that time—as a 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 what the retired person received while actively employed, without also taking into account that the calculation at that time was not made on the basis of the current salary, but rather on a pro-rata of the last 20 years of service. It states that, in addition to the foregoing, as mentioned in the report rendered at that time, the situation was not unfamiliar to those already being granted and enjoyed, since they currently bear levies ranging from 31% to 35% of the total benefit, which, added to the lowest percentage of the solidarity quota (cuota solidaria)—25%—yielded a total of 60%, which could prove confiscatory and disproportionate and, consequently, contrary to what is stipulated under treaty law and unconstitutional.
It indicates that it is important to bring to bear Article 67 of ILO Convention No. 102 regarding the amount of the benefit and the warning made therein that the total of the benefit and of the family's other resources, after deducting appreciable amounts, must be sufficient to ensure healthy and proper living conditions for the family and must not be less than the amount of the benefit calculated in accordance with Article 66 of that instrument. It notes that ILO Recommendation No. 43 must also be taken into account, which is consistent in establishing that the pension must meet the essential needs of persons in their old age, so the amount must be fixed taking into account the "cost of living and the social situation during the period of professional activity"; that is, the standard of living the worker maintained during his or her active professional life must be respected. It states that, for this reason, it was deemed that the normative framework described must be taken into account when imposing caps and tax burdens on the retirement benefit (haber jubilatorio), so that these conform to the reasonableness and proportionality indicated by both the Constitutional Chamber and the International Labour Organization (ILO).
It indicates that the challenged provision grants certain competencies to the Full Court (Corte Plena) and to the Superior Council of the Judicial Branch as the institutional hierarchy responsible for overseeing the proper functioning of their units and the efficiency of service delivery; among those competencies, Article 240 granted the Full Court the authority to appoint 3 members of the Administrative Board, along with their respective alternates, for which the entire internal recruitment and selection process had to be activated by the technical offices and the manner in which the relevant competitive process would be conducted had to be defined at the outset—a process which, as of the date of this report, had not been completed due to a lack of applicants and reasons beyond the institution's control. It adds that the final paragraph of Article 239 of the challenged Law established an administrative expense fee, noting that at the outset that amount would very likely prove insufficient to cover administrative expenses plus the salaries of the Administrative Board.
It notes that, for this reason, as of the time of this report, it is evident that the Judicial Branch will at some point need to provide reasonable material support to the Administrative Board; this is because any risk must be avoided, including the risk that, due to lack of foresight, the commencement of operations of this new body could be jeopardized. It states that it is worth highlighting that Ley 9544 contains many ambiguities that will need to be addressed by regulation, some of which—at that time—had been approved by the Full Court and must not exceed the scope of that Law, with the risk of departing from the legislature's intent. It warns that this problem was also flagged during the processing of legislative file 19.922 that gave rise to Ley 9544, in which regard the Treasury Counsel (Procurador de Hacienda) noted that the lack of clarity in Article 240 regarding the Administrative Board may be corrected through regulation, but in that case there is a risk that the regulation will not reflect the legislature's intent (Legal Opinion 104-2017 of August 16, 2017).
It indicates that the foregoing arises from a contradiction or conflict of norms regarding the regulation of per diem allowances (dietas) for the members of the Administrative Board: under Article 239, paragraph 5, the administrative expense fee (5 per 1,000) is to be used to pay the per diem allowances of the Board members, the salaries of its staff, and its administrative expenses; while Article 204, paragraph 4 simultaneously provides that "the members of the Administrative Board shall receive no per diem allowances" (underlining in the brief). It reports that, for all the foregoing reasons, the Full Court, in the sessions cited, issued a negative opinion and agreed that the texts consulted regarding 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 this relates to the structure and functioning of the Judicial Branch, because it directly affects the life plans of all judicial employees, since it entails a reduction of the pension even though they have met all the legal requirements to fully enjoy the retirement benefit. This includes payment of the necessary and corresponding contributions; income tax payments; contributions both to the Judicial Branch Retirement and Pension Fund and to the Costa Rican Social Security System (Caja Costarricense del Seguro Social), and a series of other burdens which, if the text as proposed by the drafting committee were to be approved, would result in confiscatory measures.
One cannot overlook the fact that the creation and nature of the Judicial Branch Retirement and Pension Fund responds to criteria of stability, independence, preparation, and aptitude, as established in Article 192 of the Political Constitution, with the aim of promoting the retention of trained and skilled personnel within the institution; a reduction of the pension benefit represents a disincentive for the entry of valuable professionals who, taking into account the economic outcome of a future assessment, would prefer to pursue their professional careers in another area of employment.
The judicial career (carrera judicial), prosecutorial, Public Defender's, and general staff careers are affected, since employees bearing four times more charges on their salaries than in other regimes would receive a lesser benefit.
Furthermore, the renewal of personnel who manage to remain is affected. The Judicial Branch would be left with aging employees who stayed on solely because of the reduction their income would suffer were they to retire.
The judicial workforce would face a dilemma: although they wish to exercise that right and are motivated to retire and rest, they find themselves in a situation where they must assess their economic circumstances, likely being compelled to seek new sources of income to maintain their normal or pre-retirement expenses, as well as those that arise naturally due to age. However, that process also has its constraints: from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired employees from taking another job, and socially it is a reality that after the age of forty there are practical limitations with respect to re-entering the workforce.
It bears a strong relationship with the structure and functioning, as it diminishes the competitiveness of the Judiciary (Poder Judicial) in the labor market, to the detriment of the quality of Justice Administration. The salary of positions is reduced by the contribution to the pension and retirement scheme (régimen de pensiones y jubilaciones), which is four times greater than the contribution required under other schemes. This hinders the recruitment of human resources and undermines public service.
Furthermore, the regulation of the Fondo de Jubilaciones y Pensiones del Poder Judicial must not be evaluated solely from an economic perspective, as we are dealing with fundamental rights—which are non-waivable—associated with every working person, who during their working years contributed at a rate higher than the general rate to a scheme with the expectation of receiving a pension that would allow them to meet their needs and enjoy their retirement years peacefully and with quality of life, together with those around them.
The imposition of this new tax burden affects vulnerable population groups—such as elderly persons (personas adultas mayores)—thereby harming the weakest party, the one who precisely requires greater protection from the State.
The proposed tax is imposed at a stage in the life of the retired person when they are most vulnerable, near or already of old age (tercera edad). One cannot ignore that it is at this stage where, in general, people require greater medical attention, special care, among other things. During their working lives, each according to their income level, they contributed to the scheme in greater or lesser amounts, with the expectation of having the resources available to face this stage of life, and if this Bill were approved, that life plan would be thwarted.
It would cause a significant social impact, since persons in retirement unexpectedly lose an important portion of their income while maintaining a pre-established level of expenditures. This has repercussions not only economically but also on their health, and runs contrary to the intended purpose of a pension system, which is to provide sufficient income during life after employment. Within this scenario, it is important to recall that in many instances, the retired person continues to be responsible for the care and maintenance of other elderly persons or minors.
(…) it is determined that the consulted text does indeed affect the structure, organization, and functioning of the Judiciary and, in that regard, the Asamblea Legislativa must take into account what the Corte Plena has stated with respect to each aspect of the Bill under consultation, unless a qualified majority (mayoría calificada) is available to depart from that binding opinion (…).
In conclusion, with respect to the Bill processed under expediente nº19922, a negative opinion must be issued, as it affects the structure, organization, and functioning of the Judiciary" (emphasis in the petition).
It further adds that the Sala Constitucional, in judgment number 2008-5179 of 11 o'clock on April 4, 2008, in relation to the impact on the functioning and organization of the Judiciary, conducted an extensive analysis regarding the aforementioned constitutional article 167, which, insofar as is relevant, provided:
"(…)
On the other hand, the non-application by the Asamblea Legislativa of the constitutional provision—upon incorrectly determining that the bill does not concern the organization and functioning of the Judiciary—could cause harm to the functional independence and budgetary autonomy of the Judiciary. The majority of this Constitutional Tribunal considers that a bill concerns such matters when its articles contain explicit rules providing for the creation, substantial modification, or elimination of strictly jurisdictional bodies or bodies of an administrative nature attached to the Judiciary, or when it creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions (…). An important barrier established by the constituent assembly to legislative discretion is precisely article 167 of the Constitution, with the aim of maintaining the independence of the Judiciary by providing for a mandatory consultation (consulta preceptiva) of bills relating to the organization and functioning of that Branch of Government.
However, this limitation must be interpreted in its true dimension, so that it applies when a bill substantially, objectively, and certainly refers to such matters; otherwise, the ordinary legislator's freedom of configuration regarding jurisdictional or administrative bodies or functions attached to the Judiciary would be unnecessarily and unjustifiably restricted" (emphasis in the petition).
It argues that, for the reasons set forth above, the procedure for the approval of Ley 9544 is that established by article 167 of the Constitución Política, which refers to the mandatory consultation that the Asamblea Legislativa must make to the Corte Suprema de Justicia when the bill concerns the organization or functioning of the Judiciary and, moreover, in order to depart from its opinion, "a two-thirds vote of the total membership of the Asamblea shall be required"; thereby the legislator guaranteed the "democratic principle," whose function is to ensure that bills analyzed under those conditions have sufficient "opportunity for reflection and debate," as the Sala Constitucional noted in judgment number 3671-2006 of 14 hours 30 minutes on March 22, 2006. It adds that, according to the records of the Secretaría General de la Corte Suprema de Justicia, following the consultation submitted by official letter number AL-20035-OFI-0043-2017 of July 31, 2017—Affirmative Majority Opinion—no further consultations were received from the Asamblea Legislativa, and the approved text presented certain important modifications in relation to the last consultation.
On the constitutional objections to the reform to the Régimen de Pensiones del Poder Judicial effected by means of Ley No. 9544, it states that, without prejudice to what was said above in the sense that the legislator has the power to regulate the different special pension schemes substituting the general scheme (including the Judiciary's scheme), it is clear that the exercise of that power must respect the constitutional rules and principles governing the matter. It states that, according to the petitioners, the reform to the pension scheme of the Judiciary effected by means of Ley No. 9544 presents several constitutional problems, which it reports having grouped into several topics addressed in turn below.
"Article 167.- For the discussion and approval of bills relating to the organization or functioning of the Judiciary, the Asamblea Legislativa must consult the Corte Suprema de Justicia; to depart from its opinion, a two-thirds vote of the total membership of the Asamblea shall be required" (emphasis in the petition).
It argues that, in the Procuraduría's view, the reform to the pension scheme of the Judiciary does not affect the "organization and functioning" of that Branch, and therefore this is not one of the cases in which the legislative process requires a mandatory consultation, since such consultation is necessary when legislating on the exercise of jurisdictional function, not when seeking to regulate administrative matters, such as those related to the pension scheme of judicial employees. It notes that this position has been repeatedly upheld by the Sala Constitucional, as in judgment No. 3063-95 of 15 hours 30 minutes on June 13, 1995, when ruling on the possible unconstitutionality of the Ley Marco de Pensiones, in which it stated, insofar as is relevant:
"III. ON THE MANDATORY CONSULTATION WITH THE SUPREME COURT OF JUSTICE. (…). Furthermore, said consultation is mandatory only when the 'organization and functioning' of the Judicial Branch is involved — a concept that refers to the jurisdictional function, with the aim of guaranteeing the independence of the Judicial Branch; this procedure does not relate to the granting of benefits to judicial employees, as is the subject matter under study, and therefore the consultation is unnecessary." (emphasis in the memorial).
The memorial adds that, on the other hand, one might think that even if the matter of pensions is not directly related to the jurisdictional function of the Judicial Branch, amending the rules governing that matter could have a budgetary impact that would indirectly justify the mandatory consultation referred to in Article 167 of the Political Constitution; an aspect on which there also exists a specific ruling by the Sala in the sense that the absence of consultation under such circumstances does not violate the Political Constitution:
"(…) the Sala considers that the pension regime for judicial employees challenged here does not modify the legal framework under which the Supreme Court of Justice administers justice, nor does it reorganize the number or jurisdiction of existing courts. Nor can a merely indirect effect be alleged against the provision — an effect that would be caused by a change in the general budget of the Judicial Branch, which in turn could influence 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 ruling number 2002-004258 of 9:40 a.m. on May 10, 2002) (emphasis in the memorial).
The memorial notes that the jurisprudential thesis set forth has been the same one that the Procuraduría, in its role as objective advisory body to the Sala Constitucional, suggested be followed in the reports filed in unconstitutionality actions No. 2340-92 and 3631-96, in which rulings numbers 3063-95 and 4258-2002 respectively were issued. It adds that the same position was also stated 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. The memorial states that, additionally, when the Sala resolved the constitutional consultation submitted with respect to bill No. 19.922 — which concluded with the approval of Ley No. 9544 — it reiterated that the regulation of the Judicial Branch's pension regime does not form part of the organization and functioning of that Branch:
"…the creation of the Judicial Branch's pension regime was key to the stability of the administrative and judicial careers of its employees and officials, and came to be a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. Together with that career, it made it possible to provide stability to judges and other employees and officials both during and after active service, which made the judicial career attractive to many legal professionals and thereby favored the stability and specialization of many officials in various 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 grounded in other factors — such as the existence of a career system 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 — and the legislature could well have opted for a single regime for all public employees or workers in general without it being possible to assert that this diminishes the independence of the body." (ruling No. 5758-2018 of 3:40 p.m. on April 12, 2018) (emphasis in the memorial).
The memorial argues that, in light of the foregoing and for the specific case at hand, the Procuraduría does not consider that this situation constitutes one of the scenarios in which the mandatory consultation provided for in Article 167 of the Political Constitution would apply.
"(…) this Constitutional Tribunal has indicated that the defense of an institution's autonomy must be raised before this body by that same institution 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 petitioner acts in his capacity as representative of a corporation, which is why he lacks standing to act in defense of municipal autonomy." The memorial argues that, based on the foregoing, it is the Procuraduría General's view that the grounds of unconstitutionality raised by the petitioners on account of the possible violation of the autonomy of the CCSS and the state-owned banks are inadmissible.
"XII.- On the alleged violation of the principle of publicity. The consultants argue that the substitute text approved by the Special Committee at its 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 expediente number 19.922. On this point, the evidence provided by the Executive Director of the Legislative Assembly on March 12, 2018 reveals that, while the aforementioned document was indeed not published, the truth is that said substitute text had no bearing whatsoever, since the substitute text that was actually approved was a different one, and therefore the principle of publicity was not affected. It must be borne in mind that publicity is not an end in itself, as this Tribunal held in advisory opinion number 2018-003851, when it established the following: 'Certainly, as noted in ruling No. 2006-009567, failure to publish constitutes an essential defect that invalidates the legislative proceedings on account of its relevance to the democratic principle.
However, in light of what was stated in ruling No. 2013-008252, it is necessary to note 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 ruling No. 2013-008252, recently transcribed, "…Such quality elevates to a constitutional level the fundamental purpose of publicity: to promote citizen participation in the fundamental decisions of the State. If this purpose is not impaired and it is evident that there has been no genuine obstruction of popular participation, then an error in publication cannot by itself constitute an essential defect in the legislative proceedings." (Underlining added.) Mutatis mutandis, if publication occurs at a different procedural moment, it must be assessed whether a genuine obstruction to popular participation has occurred or whether the transparency of the legislative proceedings has been seriously affected, in order to determine whether a substantial defect in the legislative procedure exists; if that is not the case, no such defect would be present.' Accordingly, no violation of the principle of publicity arises, as argued in the initial brief of this legislative consultation, since there has been no genuine obstruction to popular participation nor has the transparency of the parliamentary proceedings been seriously affected. For the foregoing reasons, the allegation raised is dismissed." (emphasis in the memorial).
The memorial additionally notes that it is public and well known that the judicial branch trade union organizations actively monitored the entire legislative process that concluded with the approval of Ley No. 9544 — a process that also received extensive press coverage — and therefore the Procuraduría considers that it is not possible to claim that there was any serious omission in the publicity surrounding the bill that could justify the annulment of said law.
"… Article 208 bis was added to the Rules of the Legislative Assembly (Reglamento de la Asamblea Legislativa) through the mechanism established for that purpose, namely the point-of-order motion (moción de orden). By adding to the Rules, the Legislative Assembly exercised its rule-making authority (potestad reglamentaria), and such exercise cannot be considered to violate the principle of the non-derogability of individual provisions of the Rules. Article 208 bis is consistent with the democratic principle and is an expression of rationalized parliamentarianism (parlamentarismo racionalizado). It must not be forgotten that, following the Second World War, various legal systems recognized the need to establish special procedures to address, in a more expeditious manner—above all by reducing time periods—transcendent situations and problems that challenge the contemporary State. The underlying premise is the need for the contemporary Parliament to respond swiftly to the challenges facing the democratic State.
That capacity to respond may derive from establishing special procedures for certain subject matters, or from reducing time periods or streamlining procedures relative to the ordinary legislative course, all with the aim of preserving the democratic system and the principles governing it, which are undermined when Parliament is unable to respond. And this is the very purpose of Article 208 bis" (emphasis in the memorial).
For its part, the Office recalls that the Constitutional Chamber has held that Article 208 bis of the Legislative Rules is constitutionally valid, provided that in each specific case the democratic principle, the principle of minority participation, and the principle of legal certainty (seguridad jurídica) are respected:
"V.- CONDITIONS UNDER WHICH THE BILL TO ADD ARTICLE 208 BIS TO THE RULES OF THE LEGISLATIVE ASSEMBLY IS SUBSTANTIALLY CONSISTENT WITH CONSTITUTIONAL LAW. A) Respect for the democratic principle and for the free political participation of minorities: This Constitutional Tribunal understands that the bill to add Article 208 bis to the Rules of the Legislative Assembly is consistent with Constitutional Law, provided that the point-of-order motion prescribed therein is required to be approved by a vote of no less than two-thirds of all members of that body; because establishing or providing for special procedures for the processing of amendments to the Rules and certain bills entails a reform or modification of the Rules—that is, of the ordinarily prescribed procedures—so that, in order to comply with the requirements of Article 121, paragraph 22), of the Political Constitution, and above all to be consistent with the democratic principle and the principle of minority participation in the making of a fundamental or transcendent decision, such a qualified or enhanced majority must be required, since it entails achieving a legislative consensus in which different political-party or ideological orientations concur in its support.
Furthermore, observance of the requirements set forth in interpretive agreement No. 4084 of June 10, 1999—since it involves the exercise of the power of amendment—guarantees such principles, as this Chamber explained in Vote No. 8408 of 15:24 hrs. of November 3, 1999, partially quoted in the third considerando of this judgment. B) Observance of the principle of legal certainty: In order to align the addition bill with the constitutional principle of legal certainty and to avoid any element of surprise, this Tribunal holds that the motion amending the Rules, by establishing a special procedure, must state in a sufficiently explicit, clear, and precise manner the various phases or stages of that special proceeding, so that, just as two-thirds of all members of the Legislative Assembly are required for its determination, the democratic principle and the principle of free political participation of minorities are likewise respected" (see judgment No. 398-2005 of 12:10 hours of January 21, 2005. In the same vein, see judgment 7687-2008 of May 7, 2008, and judgment 4151-2012 of March 27, 2012) (emphasis in the report).
On this point, the Office concludes that, since there are no compelling reasons to depart from that position, Article 208 bis of the Legislative Rules is not unconstitutional in and of itself.
The Office adds that this issue was subjected to constitutional review through the optional consultation processed under case number 17-017148-0007-CO, and on that occasion the Chamber held that the reforms incorporated into the Judicial Branch's pension scheme with respect to contributions, retirement age, and the amount of benefits are not contrary to the Constitution:
"… The petitioners argue that Articles 224 and 227 of the bill infringe the principle of judicial independence, insofar as the pension that judges will receive, after the legally established deductions are applied, will be less than 55% of their final salary, which constitutes a ruinous figure. They also allege that this situation will lead several judicial officers to choose to leave the judiciary, thereby constituting an indirect pressure measure by another Branch of the Republic that will necessarily impinge upon the freedom of judges, causing them to forgo the pursuit of a genuine judicial career. Those provisions read as follows (…) It should be noted that the provisions being challenged are grounded in the actuarial studies that underpin the bill. In that regard, document IICE-186-2017 of August 18, 2017, from the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica, states the following on the matter:
"(…), the IICE team considers it more appropriate and advisable to establish a single, clearly defined employee contribution with a reasonable link between the contribution and the benefit received by members of the fund. 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 note that the Majority Opinion fixes the employer contribution at 14.36% (Article 236, paragraph 2), decoupling it from proportional increases in the employee contribution, an aspect that aligns with the IICE's recommendation.
(…)
d. Special, solidarity-based, and redistributive contribution by retirees and pensioners.
In Article 236 bis, the Majority Opinion proposes a solidarity contribution—in addition to the ordinary contribution—that starts at 35% and reaches up to 55% of the ceiling of the retirement benefit or pension. The percentage applied varies according to the magnitude of the excess above the ceiling.
The scheme proposed by the Majority Opinion benefits the fund relative to IICE frameworks 3 and 4 in that respect, because the solidarity contribution in the majority text is established as 'in addition to the ordinary contribution,' whereas in IICE frameworks 3 and 4 the ordinary contribution is included within the 50% solidarity contribution, which makes it (in those IICE_3 and IICE_4 frameworks) a net contribution of 39% or 35%, for ordinary contributions of 11% and 15%, respectively." The Chamber considers that the foregoing satisfies the requirement established by international doctrine to the effect that it is public authorities who bear the burden of proving that cutbacks are justified in light of the body of socioeconomic rights, and that when an administration finds it necessary to adopt regressive measures with respect to the right to a pension and retirement, it must have a technical study regarding the effects that such measures may have on the rights of those affected and on the scheme, as well as demonstrating that no less burdensome measures could have been taken—a requirement that is met in this case, taking into account the analyses conducted by the University of Costa Rica in the actuarial studies of the Pension and Retirement Fund of the Judicial Branch (Judgment No. 5758-2018 of 15:45 hours of April 12, 2018)" (emphasis in the report).
It specifies that, in accordance with article 236 of the LOPJ, the total deductions that must by law be applied to the pension amount may not exceed 55% of the gross amount; a provision that, insofar as relevant, states: "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 Fondo de Jubilaciones y Pensiones del Poder Judicial, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is legally entitled. In cases where 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 equals fifty-five percent (55%) of the total gross amount of the pension." It states that, in accordance with the partially quoted provision, it is not possible for the amount of legal deductions applied to a judicial officer's pension to exceed 55% of the gross amount of the benefit, and that if this were to occur, the issue would no longer be one of the provision's constitutionality but rather one of its application, which is not reviewable in this proceeding.
It argues that, in summary, the reasonableness, proportionality, and fairness of the legislative reform to a pension scheme must be measured against the data produced by technical studies—which is where the magnitude of the changes to be made must be reflected—and that, in this case, the Procuraduría considers that the changes made to the Poder Judicial pension scheme have the necessary technical support to affirm their conformity with constitutional law.
It argues that, evidently, the legislature has a certain margin of discretion to regulate the conditions under which special pension schemes must operate, but that margin is not absolute; rather, it must be supported by objective data derived from technical studies. It states that, in the case of the reform to the Poder Judicial pension scheme carried out by means of Ley N° 9544, the Procuraduría considers that it was indeed grounded in actuarial studies that shaped the scope of said reform; studies that were carried out by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica, and on the basis of which the basic elements of the scheme were established, such as the contribution rate, the percentage of the special solidarity contribution, the calculation of benefits, etc. It adds that, with respect to the existence of the technical studies necessary to support the reform, the Sala, in sentencia N° 5758-2018 cited repeatedly, stated the following:
"XIX.— On the lack of studies for establishing the calculation of the pension. The consultants consider that article 224 of the bill is contrary to article 73 of the Constitución Política. They argue that the challenged article provides that the pension calculation shall be obtained from the average of the salaries earned by the worker over the last 20 years, without technical studies regarding what the actual impact on the fund's reserves will be. They add that the study that served as the basis was the one issued by the Universidad de Costa Rica, but that this study set the calculation limit for the pension at the last 120 salaries (10 years), and therefore they consider that the Special Committee exceeded its mandate, since, without technical grounding, it changed the calculation criterion from the last 120 salaries to one of 240 salaries. They also consider it illegitimate to treat as absolute the annual return percentage of 3% on fund investments, without taking into account that actual returns were higher.
With respect to the first of the allegations, the Sala considers that, upon reviewing the record, the alleged defect is ruled out, since at folio 2942 of the legislative file there is document number IICE-186-2017 of August 18, 2017, in which the director of the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica endorses the parameter established by article 224 of the bill, stating, in this regard, the following:
'a. Reference salary for calculating the amount of the retirement or pension benefit In article 224 as 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 the 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 over the last 20 years, adjusted for inflation, is 4.8% lower than the average salary over the last 10 years for new pensioners, given the merit scale currently in force in the Poder Judicial. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed legislation, works in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we will refer in the following subparagraph.
b. Worker contribution and benefits for members (…)
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 noted, consists of a differentiated scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale have already been identified; since it is left to the discretion of the Junta Administradora of the Poder Judicial itself, it 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 appropriate and advisable to establish a single, clearly defined worker contribution with a reasonable link between that contribution and the benefit received by fund 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 note that the Majority Opinion sets the employer contribution at 14.36% (article 236, paragraph 2), decoupling it from proportional increases in the worker contribution, an aspect that aligns with the IICE's recommendation.' In that regard, having verified that, contrary to what is stated in the initial filing, a technical opinion does exist that endorses the parameter established by the bill with respect to the reference salary for calculating the pension, the Court rules out the existence of the alleged defect.
Furthermore, with respect to the second of the consultants' allegations, the Sala considers that, at bottom, what is being questioned is whether the parameters that served as the basis for establishing the requirements for obtaining the right to a pension were the appropriate ones or not—a matter that does not mean the provision is unconstitutional, as the consultants argue, and for that reason the alleged defect is considered nonexistent." (emphasis in the report).
It states that, proceeding from the foregoing, that advisory body considers that the technical studies whose absence the petitioners invoke in challenging the validity of the reform to the scheme do in fact exist.
"… the contribution established as a charge on retirees of the National Teaching Corps Pension Scheme (Régimen de Pensiones del Magisterio Nacional) under Article 12, and the exclusion of that contribution as a vested right (derecho adquirido) under Transitional Provision I, both of Law No. 7268, do not infringe Article 34 of the Political Constitution, because they form part of the set of limitations that have validly been part of the fundamental right to retirement (jubilación) that the petitioner has held since joining the scheme, and from which he cannot escape because he acquired those limitations together with the right itself. (…) The manner in which Article 12 of Law No. 7268 regulates the contribution charged to retirees of the National Teaching Corps Scheme does not contravene Article 45 of the Political Constitution: first, because it respects the principle of progressivity (the only deficiency noted when the Legislative Consultation was answered in due course, and which Parliament took care to correct), thereby leaving practically intact an amount that the Court considers sufficient to guarantee the effective enjoyment of the right to retirement; and second, because the amounts charged for the various excesses that arise in specific cases have a clear protective and equalizing purpose for the benefit of the group of persons for whom the scheme was established — that is, they are directed toward the social welfare of all, or of the great majority, of the members for whom the scheme was conceived.
This may entail that certain pension systems contain redistributive rules for cases that may be called, if one wishes, anomalous with respect to the scheme's underlying rationale, and that must therefore undergo an equalization process in order to bring the benefits received (to the extent necessary and possible) into line with those received by the majority of beneficiaries of the scheme, consequently having to make — if they wish to continue enjoying the system's benefits — a greater contribution in exchange for receiving greater consideration relative to the persons who were taken into account when the system was designed — in this case, teachers — who earn a substantially lower salary and whose retirement or pension benefit is correspondingly lower. It is therefore fair — given the solidarity-based character (carácter solidario) of the scheme — to set a sufficiently high maximum ceiling that allows the higher salaries of the scheme's own beneficiaries to be included, and to subject to greater participatory requirements those who fall above that ceiling, since they always arise from obligations that were not contemplated among those taken into account when the scheme's bases were established." The Office states that, proceeding from the foregoing, it is clear that nothing within the constitutional framework prevents the legislature from imposing a contribution such as the one contemplated by the challenged law, provided that the contribution is progressive and proportional, as is the case here.
Furthermore, the Office indicates that it does not consider that the Constitutional Court's advisory body finds that the special, solidarity-based, and redistributive contribution imposed on the beneficiaries of the Judicial Branch pension scheme violates the principle of equality by affecting only judicial employees, since contributions of the same type apply in other pension schemes — for example, in the National Teaching Corps Scheme (Article 71 of Law No. 2248 of September 5, 1958), and in schemes funded from the national budget (Law No. 9383 of July 29, 2016, and Article 11 of Law No. 7302 of July 8, 1992). The Office states that, admittedly, the burdens borne by Judicial Branch employees differ from those borne by members of CCSS's general disability, old-age, and death scheme; however, that fact does not cause the special, solidarity-based, and redistributive contribution charged to judicial officers to violate the principle of equality or the "principle of social-security unity," since these are different pension schemes with different characteristics, and one therefore cannot claim the most favorable provisions from each scheme.
The Office adds that the Procuraduría also does not consider this to be a case of double taxation, since the contribution to the fund imposed on all beneficiaries of the Judicial Branch pension scheme is one thing, and the solidarity-based and redistributive contribution imposed only on retirees who receive economic benefits exceeding ten times the base salary of the lowest-paid position in the Judicial Branch is quite another; this contribution is moreover proportional and progressive and is of a different nature from that of the regular contribution, and is therefore not considered to be contrary to the Political Constitution.
The Office argues that, notwithstanding the foregoing, the Constitutional Court has validated that, in order to protect the potential beneficiary of a given special retirement or pension scheme from sudden changes that might aggravate the requirements for obtaining recognition of the benefit, should the legislature see fit and decide to regulate the matter by means of transitional provisions, a period of 18 months is sufficient so that the modification of the specific conditions does not affect the person subject to administrative authority who fulfills the requirements within that period. The Office refers to the Court's judgment No. 846-92 of 13:30 hours of March 27, 1992, in which — with reference to the then-bill creating the General Pension Scheme Charged to the National Budget — the Court held, among other things, that: "— in its transitional articles — it recognizes the preservation of the retirement status of employees who have fulfilled the requirements to enjoy the benefit, and moreover extends this to those who belong or have belonged to the excluded schemes in order to acquire it, within a period of eighteen months, which appears reasonably sufficient to guarantee any eventual good-faith rights." The Office notes that, by this ruling, the Court considered that not only was the right of persons who, upon the law's entry into force, had already fulfilled the requirements to retire or receive a pension under the legislation being amended guaranteed, but that it was also extended to those who were close enough in age to be able to do so (within the 18 months following the reform), provided that the factual conditions set out in those rules had been fulfilled, notwithstanding their repeal.
(See also judgment No. 5476-93 of 18:03 hours of October 27, 1993.) The Office argues that the foregoing confirms that, in Costa Rica, the "vested right" to retirement is recognized at the constitutional level only when all the required conditions have been fulfilled, while the so-called "right of membership" (derecho de pertenencia) — which is nothing more than a mere expectation — is confined exclusively to those who, within a short period following a reform (at least 18 months), will come to meet the requirements necessary to receive the specific benefit under the amended rules, and only when the legislature itself has expressly so provided by introducing transitional provisions. The Office affirms that, beyond that, the right of membership is a mere expectation that is extinguished by the reform or repeal introduced by whatever new legislation is enacted. The Office argues that, while constitutional jurisprudence has recognized that, in the case of contributory pension schemes, the making of contributions gives rise to a "right of membership," this does not render the rules of the system immutable.
The Office states that, in this case, Transitional Provision VI of Law No. 9544 provides that "Judicial employees who fulfill 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 the eighteen months following the promulgation of this law, may retire under the provisions established in the aforementioned text"; a provision which — even though it is discretionary for the legislature (and therefore could not exist without that implying any constitutional infringement) — supports the conclusion that the changes to the scheme were neither abrupt nor sudden, and the Procuraduría therefore does not share the grounds of unconstitutionality put forward by the petitioners.
"… in the opinion of this Chamber, the fact that no differentiation is made on the basis of gender in the terms mentioned by the petitioners does not entail a constitutional defect (vicio de inconstitucionalidad), since it must be taken into account that the requirements for obtaining a retirement benefit are based on objective criteria established through technical studies, which set requirements such as age and the number of contributions a person must make to guarantee the sustainability of a pension system, regardless of the contributor's (cotizante) gender. It must be kept in mind that the petitioners do not provide technical studies to support the alleged unconstitutionality in a way that would objectively justify making the differentiation they call for, which does not mean that, in the future, this Tribunal, through subsequent constitutional review, will not analyze the grievance raised on the basis of pertinent technical studies that may eventually be submitted" (sentencia N° 5758-2018 of 15 hours 45 minutes of April 12, 2018) (emphasis added by the report).
It is noted that, in any case, Article 224 bis of the LOPJ, related to the matter of early retirement, does draw a distinction between men and women with respect to retirement age; a distinction that is very similar to that provided for in the disability, old age, and death system (régimen de invalidez, vejez y muerte) of the CCSS, since women are permitted to retire at age 60 and men at age 62. On the other hand, with regard to the argument that the reform to the Judicial Branch pension system is unequal and discriminatory because it grants relatively higher benefits to those with higher salaries, it is noted that the reform, in its entirety, followed the technical criteria issued by the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica, so that an objection such as the one raised could only be upheld if the alleged discrimination were demonstrated technically, which, it is affirmed, has not been done. It is further noted that the creation of the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) referred to in Article 236 bis of the LOPJ was aimed precisely at ensuring that pensioners with higher incomes would contribute more resources to the fund for the solidarity-based maintenance of the system.
Conclusion: based on the foregoing, the Procuraduría General de la República suggests that the Sala Constitucional declare without merit the consolidated actions referred to in this report, and affirms that, with respect to Article 239 of the LOPJ, its office considers that the powers granted to the Administrative Board of the Judiciary Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) to modify the initial parameters established in that law with respect to eligibility requirements, the benefit profile, as well as the contributions and payments of judicial employees and of retirees and pensioners, is not unconstitutional, provided it is interpreted that said authority may only be exercised within the limits set forth by law or those that may be established in the future.
"XII.- On the alleged violation of the principle of publicity. The petitioners 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 established by the special procedure approved for expediente number 19.922. On this point, from the evidence submitted by the executive director of the Asamblea Legislativa on March 12, 2018, it is apparent that, while the aforementioned document was not published, said substitute text had no bearing whatsoever, since the substitute text that was approved was a different one; 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 maintained in advisory opinion number 2018-003851, when it held the following:
'Certainly, as noted in sentencia N° 2006-009567, the failure to publish constitutes an essential defect that invalidates the legislative process due to its relevance to the democratic principle. However, in light of what was stated in sentencia N° 2013-008252, it is necessary to note that the principle of publicity is not an end in itself, but rather its importance lies, on the one hand, in guaranteeing transparency, and, on the other, in enabling the participation of interested parties. As stated in sentencia N° 2013-008252, just quoted, "…Such a quality elevates to the constitutional level the fundamental purpose of publicity: to promote citizen participation in the fundamental decisions of the State. If this aim is not compromised and it is clear that there has been no genuine obstruction to popular participation, then an error in publication cannot alone constitute an essential procedural defect in the legislative process." (Emphasis added.) Mutatis mutandis, if publication takes place at a different procedural stage, it must be assessed whether there has been a genuine obstruction to popular participation or whether the transparency of the legislative process has been seriously affected, in order to determine whether a substantial procedural defect exists; if that is not the case, no such defect would be present.' That being so, no violation of the principle of publicity exists, as alleged in the initial brief of this legislative referral, since there has been no genuine obstruction to popular participation nor has the transparency of the parliamentary procedure been seriously affected. The argument raised is therefore dismissed" (2018-005758 of 15 hours 40 minutes of April 12, 2018).
She argues that, since the petitioners do not provide any new or different elements beyond those already raised by the legislators in the legislative referral that gave rise to the ruling cited, there is no reasonable basis for reaching a conclusion different from what the Chamber stated in that judgment. She states that, notwithstanding the foregoing, the Presidency of the Asamblea considers it important to note that the principle of publicity was broadly guaranteed by her office throughout the consideration and voting on expediente legislativo No. 19.922, and in that regard reports that the updated text of the initiative was published on the following occasions:
"Certainly, as noted in sentencia No. 2006-009567, the failure to publish constitutes an essential defect that invalidates the legislative process due to its relevance to the democratic principle. However, in light of what was stated in sentencia No. 2013-008252, it is necessary to note that the principle of publicity is not an end in itself, but rather its importance lies, on the one hand, in guaranteeing transparency, and, on the other, in enabling the participation of interested parties (…) Mutatis Mutandis, if publication takes place at a different procedural stage, it must be assessed whether there has been a genuine obstruction to popular participation or whether the transparency of the legislative process has been seriously affected, in order to determine whether a substantial procedural defect exists; if that is not the case, no such defect would be present" (resolución 2018-003851 of the Sala Constitucional of 11 hours 41 minutes of March 7, 2018).
She states that, likewise, citizens were also able to access the various updated texts, the opinions, and the reports of the Technical Services Department related to the processing of legislative file 19.922; she affirms that even today, all of that information continues to be publicly accessible through the website of the Legislative Assembly: http://www.asamblea.go.cr/CentrodeInformación/Consultas_SIL/SitePages/ConsultaProyectos.aspx; therefore, with respect to this aspect, she considers that the arguments raised must be dismissed on the merits.
"Now, in light of the foregoing, this Tribunal considers that the subject matter of legislative file number 19.922 does not fall within the circumstances established by Article 167 of the Political Constitution and, therefore, there was no obligation to consult the Supreme Court of Justice. In that regard, it is established that, while the challenged bill creates a body attached to the Judicial Branch — namely the Administrative Board of the Pension and Retirement Fund of the Judicial Branch — which assumes functions previously granted to the Superior Council of the Judicial Branch, the truth is that those elements concern matters that are proper to the Pension and Retirement Fund of the Judicial Branch, that is, typically administrative functions that do not have an impact, at least not directly, on the jurisdictional function of the Judicial Branch, which is precisely what Article 167 of the Constitution protects.
We are not, therefore, confronted with the creation, substantial modification, or suppression of strictly jurisdictional bodies or administrative bodies attached to the Judicial Branch, nor with the creation ex novo, substantial modification, or elimination of materially jurisdictional or administrative functions. It should be noted that the new body — the Administrative Board of the Pension and Retirement Fund of the Judicial Branch — forms part of the structure of the Judicial Branch, whose functions are typically administrative in nature, namely the administration of the aforementioned Fund, which cannot be subsumed within the constitutional requirement of modifications to the organization and operation of the Supreme Court of Justice that concern its typical and exclusive function — namely the jurisdictional function — and those essential administrative functions that support its primary function.
In any event, and without prejudice to the foregoing, it is necessary to mention that folio 2625 of the legislative file contains a record showing that, pursuant to a motion approved on July 27, 2017, by the Special Committee, by means of official letter AL-20035-OFI-0043-2017 dated July 31, 2017, the head of the Legislative Assembly's Committee Area granted the Judicial Branch an opportunity to be heard with respect to the majority affirmative opinion, and the Supreme Court of Justice proceeded to issue its view by means of official letter SP-253-17 dated August 10, 2017, as verified from the study of folios 2759 to 2807 of the legislative file. In that regard, it is therefore clear that the Judicial Branch was able to issue its opinion with respect to the substitute text approved by the Special Committee on July 27, 2017, even before it was considered by the full Assembly. In light of the foregoing, the Chamber finds that the procedural defect alleged by the referring parties is not present" (ruling 2018-005758 issued at 3:40 p.m. on April 12, 2018).
She states that, since the petitioners do not contribute any new or different elements beyond those already alleged by the legislators in the legislative referral that served as the basis for the aforementioned ruling, there is no reasonable ground to reach a conclusion different from what the Constitutional Chamber held; therefore, this aspect raised in this action of unconstitutionality (acción de inconstitucionalidad) must be dismissed on the merits.
She indicates that, as recorded in the minutes of ordinary plenary session number 163 of the Legislative Assembly dated April 19, 2018, the bill that had been processed under legislative file No. 19.922 was voted in the affirmative by 34 legislators and only 9 against; in this manner and in accordance with Article 119 of the Political Constitution, it was correct for the Presiding Officer to declare it approved in Second Debate. Consequently, she considers that this aspect raised by the petitioners must be dismissed on the merits.
"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 apparent from Article 231 of the Organic Law of the Judicial Branch that, in the event that a Judicial Branch employee has contributed to another public pension regime, the latter is obligated to remit to the Judicial Branch regime both the contributions made by that individual and the funds deposited by the State for pension purposes.
This Office had already addressed, in opinion C-265-2004 of September 10, 2004, the issue of the transfer of contributions made to a pension regime other than the one that would grant the pension. On that occasion we stated the following:
'…it is the view of this Office that if an employee has made contributions to a given pension regime, and that employee's right to receive a pension from a different regime is declared, the first regime is obligated to transfer the funds with which it was presumably going to provide a benefit that it ultimately did not provide.
The basis for requesting the transfer of funds (apart from the specific provisions that each regime may have for that purpose) is found in the elementary principles of justice, logic, and expediency referred to in Article 16 of the General Law of Public Administration. It is certainly neither just, logical, nor expedient for one pension regime to retain funds that another will lack in order to grant a benefit that the first regime did not ultimately confer (…)
In any event, it should be noted that the transfer of funds does not consist merely in the simple transfer of contributions made by the interested party. In that regard, it must be borne in mind that in the area of pensions, contributions to the regime — whether to the general regime or to any of its substitutes — are tripartite, being made by the worker, the employer, and the State alike. For that reason, the funds to be transferred must, in principle, encompass all three types of contributions.' In the situation under study, we consider that the answer to the query posed to us cannot differ from the one given in the matter just mentioned, as it involves a very similar situation, with the particular feature, moreover, that in this case there is an express statutory provision that orders the transfer of the amounts contributed at the time by the State.
Based on the foregoing, this Office of the Attorney General finds that, pursuant to Article 231 of the Organic Law of the Judicial Branch, when an employee of that Branch has contributed to another public pension scheme, that scheme is obligated to transfer to the Judicial Branch Pension Scheme both the contributions made by that individual and the monies deposited by the State for pension purposes." It therefore argues that this aspect raised in the constitutional challenge must be dismissed on the merits. It adds that, in the same vein, the petitioners allege that Article 234 and Transitory Provision II established in the law under review impose on the CCSS an obligation to refund the amounts contributed, and that for this reason they take the view that that institution should have been consulted. It argues that, contrary to the petitioners' position, the provisions in question grant the contributor the right to request the transfer of their contributions from the Judicial Branch Retirement Fund to the Caja Costarricense del Seguro Social, which it considers to be an obligation not of the CCSS but of the Administrative Board of the Judicial Branch Pension and Retirement Fund; and, therefore, since there is no adverse effect on the CCSS, it considers that this aspect raised in the constitutional challenge is entirely without merit and must be dismissed on the merits.
Finally, it notes that the petitioners allege that Articles 227 and 233 of the law under review affect the competencies of the CCSS because they assign to the State Disability Assessment Commission of the Caja Costarricense de Seguro Social the responsibility for declaring permanent disabilities. On this point it states that this competency is not conferred by Law No. 9544 but rather is grounded in Article 3 of the Constitutive Law of the Caja Costarricense de Seguro Social, Article 7 of the Regulations on Disability, Old Age, and Death, and the Regulations on the Classification, Assessment, and Ruling on the Status of Disability, Old Age, and Death of the CCSS; therefore, in its view, there is no adverse effect on the CCSS, and accordingly this aspect raised in the constitutional challenge is entirely without merit and must be dismissed on the merits. On another matter, it recalls that according to the petitioners, Article 240 bis of the law under discussion imposes serious limitations on the administrative autonomy of the banks and, for this reason, they should have been consulted as a mandatory step; however, it argues that the provision in question establishes no limitation whatsoever on the State banks, and notes that, as the article expressly provides, the subject of the obligations and authorizations referred to therein is the Administrative Board of the Judicial Branch Pension and Retirement Fund, inasmuch as it expressly states that:
"The Administrative Board, under its own responsibility, shall invest the accumulated resources of the Judicial Branch Pension and Retirement Fund under the best market conditions, in such a manner that the criteria of security, liquidity, and profitability prevail.
Said Board is authorized to place the resources of the Judicial Branch Pension and Retirement Fund in the following investment options: ..." It therefore considers that this aspect raised in the constitutional challenge must be dismissed on the merits.
Turning now to the substantive unconstitutionality arguments advanced by the petitioners, it proceeds to address them as follows.
The reporting official states that identical arguments have already been analyzed by the Constitutional Court in at least the following rulings: a) 2005-00398 of 12:10 a.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. It reports that, on the most recent occasion, the Constitutional Chamber — by a majority of its members — held:
"V.- CONDITIONS UNDER WHICH THE BILL ADDING ARTICLE 208 BIS TO THE RULES OF PROCEDURE OF THE LEGISLATIVE ASSEMBLY IS SUBSTANTIALLY IN CONFORMITY WITH CONSTITUTIONAL LAW. A) Respect for the democratic principle and for the free political participation of minorities: This Constitutional Court understands that the bill adding Article 208 bis to the Rules of Procedure of the Legislative Assembly is in conformity with Constitutional Law, provided that it is stipulated or interpreted that the point of order provided for therein 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 amendments to the Rules of Procedure and certain bills presupposes a reform or modification of the Rules of Procedure — that is, of the ordinarily established procedures — so that, in order to comply with the requirements of Article 121, paragraph 22), of the Political Constitution and, above all, in order to be consistent with the democratic principle and the principle of minority participation in the adoption of a fundamental or far-reaching decision, such a qualified or heightened majority must be required, which presupposes the attainment of a legislative consensus in which different political-party or ideological orientations converge and are respected.
To the foregoing must be added that observance of the requirements established in Interpretive Agreement No. 4084 of June 10, 1999 — since this involves the exercise of the power of amendment — guarantees such principles, as this Chamber set out in Vote No. 8408 of 3:24 p.m. on November 3, 1999, partially quoted in the third recital of this judgment. B) Observance of the principle of legal certainty: In order to bring the addition bill into conformity with the constitutional principle of legal certainty and to avoid any element of surprise, this Court takes the view that it must be stipulated or understood that the motion amending the rules of procedure, 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 process, so that, just as a two-thirds majority of the total membership of the Legislative Assembly is required for its determination, the democratic principle and the principle of free political participation of minorities are likewise respected.
Finally, regarding the advisability of the provision as well as its compatibility with the remainder of the normative text, that is a matter to be analyzed by the Legislative Assembly, since the integration and systematic relationship of the rules of its Rules of Procedure also forms part of its self-regulatory power in its interpretive or hermeneutic dimension. In the same vein, it is equally not for the Chamber to determine whether the bill under consultation is complex or not so as to fall within the exception of Article 205, since such a determination constitutes a value judgment that exceeds the competence of this Court, and that in any event would be reviewable before the Plenary of the Legislative Assembly." (4151-2012 of the Constitutional Chamber).
It reiterates the arguments set forth by the Constitutional Chamber in the ruling cited above and, since there are no new arguments or elements that were not considered by that Court in its case law, it considers it unnecessary to elaborate further in its analysis, adding that, in accordance with the majority position, this unconstitutionality claim must be dismissed on the merits.
"...the contribution imposed on retirees of the Régimen de Pensiones del Magisterio Nacional under Article 12, and the exclusion of that contribution as a vested right (derecho adquirido) under Transitorio I, both of Law number 7268, do not infringe Article 34 of the Political Constitution, as they form part of the set of limitations that have validly constituted part of the fundamental right to retirement (jubilación) held by the petitioner since his entry into the system, and from which he cannot exempt himself because he acquired them along with that right. (...) The manner in which Article 12 of Ley 7268 regulates the contribution charged to retirees of the Régimen del Magisterio Nacional does not contravene Article 45 of the Political Constitution: first, because it respects the principle of progressivity (principio de progresividad) — the only deficiency noted when the Legislative Consultation was addressed in due course, which Parliament took care to correct — thereby leaving practically intact an amount that the Sala considers sufficient to guarantee the effective enjoyment of the right to retirement; and second, because the amounts charged for the various excesses that may 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 welfare of all, or at least the vast majority, of the members for whom the regime was conceived.
This may entail that in certain pension systems (regímenes jubilatorios) there exist redistributive rules for cases that could be called, if one wishes, anomalous with respect to the regime's raison d'être, and which must therefore undergo a process of equalization in order to align the benefits received (to the extent necessary and possible) with those received by the majority of the regime's beneficiaries. Accordingly, those persons — should they wish to continue enjoying the system's benefits — must make a greater contribution in exchange for receiving a greater benefit relative to the persons who were taken into account when the system was designed — in this case, teachers — who receive a substantially lower salary and, correspondingly, a lower retirement or pension (pensión) benefit. It is therefore fair — given the solidarity-based (solidario) character of the regime — to set a sufficiently high maximum amount that allows the higher salaries of the regime's own beneficiaries to be included, and to subject those who exceed that ceiling to greater participatory requirements, since such cases always arise from obligations that were not contemplated among those considered when establishing the system's foundational parameters." It affirms that, in the same vein, the Procuraduría General de la República stated in Legal Opinion N° OJ-104-2017, with respect to Article 236 bis of the bill processed under Expediente N° 20.035, insofar as relevant:
"...it is clear that nothing in the constitutional framework prevents the legislature from imposing a contribution such as the one contemplated in 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 retirement regimes and the permissibility of special contributions (contribuciones especiales).
"IV.- Coexistence of Several and Different Retirement and Pension Regimes in Costa Rica.
Despite the fact that the currently dominant trend is the 'homogenization' of the social security (seguridad social) system with respect to economic benefits for retirement and pensions — as evidenced by Ley N° 7302 of July 15, 1992, commonly known as the Ley Marco de Pensiones — the truth is that retirement conditions and requirements were not regulated in a reasoned and uniform manner for all public servants; this is because public employment incorporates persons who together form an enormously 'heterogeneous' group. Such diversity, insofar as it is reasonable, does not constitute discrimination contrary to the Constitution, for as the Spanish Constitutional Court has rightly acknowledged (SSTC 7/1984 y 68/1989, AATC 734/1988 y 1101/1988), the equality or inequality established by the legislature between bodies of civil servants — which are structures created by law — is the result of their very legal configuration.
It must also be noted that the retirement age prescribed in each special regime, as well as the qualifying period — whether by contribution period (cotización), employment, or residence — has not been and need not always be the same for all existing regimes. This is so because their determination depends on a plurality of factors that normally relate to the greater or lesser need for personnel that the Administration and its various components have, as well as to criteria of social and economic policy — such as combating unemployment or, conversely, reducing the public deficit by delaying the age at which pensions begin to be paid — reasons that are all broadly debatable in the political sphere, but which can be perfectly legitimate in the legal sphere.
When addressing a legislative consultation on the bill for the Ley Marco de Pensiones y Jubilaciones, the Sala in its ruling No. 846-92 of 1:30 p.m. on March 27, 1992, expressed the following with respect to the diversity of retirement systems:
'B).- They also consult, in the same vein, the constitutional permissibility of special regimes — understood as retirement systems distinct from that of the Caja Costarricense de Seguro Social — the admission of different rules in all or some of the elements to be taken into account, and, assuming such regimes were deemed viable, whether it would be permissible to establish different conditions for retirement — for example, by age, contribution periods, etc. The Sala considers that, if the primary aim of the constituent assembly was to maintain social insurance in order to strengthen social security, there is no reason to question the existence of a plurality of regimes. The premise is that the constituent assembly sought a minimum level of protection for workers, leaving the door open for future regulation of new social security systems — which are the product of a historical process in which the current situation is the consequence of past actions or deficiencies and, in turn, is the origin of the actions that will be taken in the future.
Social security — that is, the public system of coverage for social, individual, and economic needs, developed from the historical action of social welfare (previsión social), structured in our country on the basis of pensions and retirements and alongside the State's tutelary intervention in the realm of labor relations — has become, over time and without the slightest reservation, one of the principal hallmarks of the social or welfare State. It is therefore unsurprising that, among the essential issues that permeate the social policy agenda of the modern State, insofar as social insurance is concerned, one finds different retirement and pension regimes. Given the existence of different regimes, it is logical that each should have its own rules and legal criteria for the granting of the constitutional right to retirement and pension; nor can it even be imagined that such coexistence is unconstitutional...' Based on all of the foregoing, the Sala determined that the existence of diverse retirement regimes is not unconstitutional, provided that certain essential requirements are met, such as the equitable distribution of burdens — an aspect not challenged in this action.
But as the Sala stated in the highlighted passage above, 'it is logical that each (of the regimes) should have its own rules and legal criteria for the granting of the constitutional right to retirement.' That is, the special character of the rules whose purpose is to guarantee the very existence of the regime need not necessarily be identical across the variety of regimes that may exist" (See in this regard ruling N°4899-97 of 1:42 p.m. on August 22, 1997, and in a similar vein ruling 5347-97 of 1:00 p.m. on September 5, 1997, as well as ruling N°2001-10860 of 8:39 a.m. on October 26, 2001).
It states that it is important to clarify that what is at issue here is the existence of different regimes — which is legally permissible — what is relevant being that, within each regime, clear rules are followed that conform to acceptable constitutional and legal parameters, and that, to that extent, there would be no infringement of the principle of unity of social security, which, it submits, cannot be equated with the homogenization of regimes.
"We consider that the provision just transcribed must be interpreted to mean that the Junta Administrativa del Fondo is empowered to modify the eligibility requirements, the benefit profile, and the contributions and assessments, but only within the margins established by law. We even consider that it would be ideal for the provision to state this expressly. This is because — as already noted — the basic characteristics of a pension regime that substitutes the Régimen General must be established through legal norms. Were it to be interpreted that the Junta Administrativa (composed predominantly of judicial officers) may increase the contribution of the State as such, and of the State in its capacity as employer, to the Régimen del Poder Judicial, this could result in an infringement of the precedents of the constitutional jurisdiction, according to which special pension regimes are constitutionally valid only insofar as the State's contributions are the same as those made to the Régimen General de Invalidez, Vejez y Muerte." It argues that, accordingly, the modifications that the Fondo de Jubilaciones y Pensiones del Poder Judicial may validly make must occur only within the framework provided by the law under analysis and the principle of statutory reservation.
The concepts of "vested rights (derechos adquiridos)" and "consolidated legal situations (situaciones jurídicas consolidadas)" appear closely related in constitutional doctrine. It may be affirmed that, in general terms, the first denotes a circumstance that has come to completion in that some thing—whether material or immaterial, whether a previously external asset or a previously nonexistent right—has entered (or impinged upon) the person's patrimonial sphere, such that the person experiences a discernible advantage or benefit. For its part, a "consolidated legal situation" represents not so much a patrimonial gain, but rather a state of affairs fully defined as to its legal characteristics and its effects, even if those effects have not yet been exhausted. What is relevant with respect to the consolidated legal situation, precisely, is not whether those effects still subsist or not, but rather that—by virtue of a statutory mandate or a judgment declaring as much—a clear and defined rule has already arisen in the legal order, connecting a factual predicate (conditioning fact) with a given consequence (conditioned effect).
From this perspective, the person's situation is governed by a logical proposition of the type "if…, then…," meaning that if the conditioning fact has occurred, then the consolidated legal situation implies that the conditioned effect must necessarily also occur. In both cases (vested rights or consolidated legal situations), the legal order protects—rendering it inviolable—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty.
It is further affirmed that, in the same vein, the Procuraduría General de la República stated the following in OJ-104-2017 of August 16, 2017:
"Article 34 of the Constitución Política establishes that no law shall be given retroactive effect to the detriment of any person or of their acquired patrimonial rights or consolidated legal situations.
In the case of a pension or retirement benefit, the right to enjoy it is acquired when all the requirements set forth in the applicable regulations have been met, requirements that include age, years of service, etc. Prior to the fulfillment of those requirements, what exists is a mere expectation of a right (expectativa de derecho), which cannot be equated, even, with a consolidated legal situation." It is stated that, in the case of a mere expectation of a right with respect to pension or retirement schemes, individuals must abide by the legislation in force and constitutional precedents, with the understanding that modification of a specific scheme is permissible and does not, in itself, constitute a constitutional violation.
"Article 34 of the Constitución Política establishes that no law shall be given retroactive effect to the detriment of any person or of their acquired patrimonial rights or consolidated legal situations.
In the case of a pension or retirement benefit, the right to enjoy it is acquired when all the requirements set forth in the applicable regulations have been met, requirements that include age, years of service, etc. Prior to the fulfillment of those requirements, what exists is a mere expectation of a right, which cannot be equated, even, with a consolidated legal situation.
Notwithstanding the foregoing, the Sala Constitucional has upheld that, in order to protect the prospective beneficiary of a given special retirement or pension scheme (régimen especial de jubilación o pensión) from sudden changes that might increase the requirements for obtaining recognition of the benefit—should the legislature deem it appropriate and decide to regulate this by transitional law—a period of at least 18 months is sufficient to ensure that the modification of the specific conditions does not adversely affect an individual who meets the requirements within that timeframe.
In this regard, the Sala Constitucional, through its ruling n.° 846-92 of 13:30 hours on March 27, 1992, referring to the then-bill creating the Régimen General de Pensiones con Cargo del Presupuesto Nacional, ordered—among other things—that: '—in its transitional articles—it recognizes the preservation of the retirement situation of employees who have met the requirements to enjoy the benefit, and furthermore extends this to those who belong or have belonged to the excluded schemes in order to acquire it, within a period of eighteen months, which appears reasonably sufficient to guarantee any eventual rights held in good faith.' With this ruling, the Sala held that it not only guaranteed the right of persons who, upon the law's entry into force, had already met the requirements to retire or receive a pension under the legislation sought to be amended, but extended it to those who were at a proximate age that would enable them to do so (18 months following the reform), provided that the factual conditions established by those rules had been met, notwithstanding their repeal. (See also ruling n.° 5476-93 of 18:03 hours on October 27, 1993 from that same Court.)
The foregoing confirms that in our legal system, the only constitutionally recognized 'vested right' to retirement arises when all the required conditions have been fulfilled, while the misnamed 'right of membership (derecho de pertenencia)'—which is nothing more than a mere expectation—is limited exclusively to those who, within a few months following the reform enacted (at least 18 months), come to satisfy the requirements necessary to receive the specific benefit under the amended legislation. And this latter scenario applies only when the legislature itself, through the express introduction of transitional provisions, has so provided. Beyond that, this right of membership is a plain and simple expectation that is extinguished by the reform or repeal introduced by the new legislation enacted. Although constitutional jurisprudence has acknowledged that in the case of contributory pension schemes (regímenes contributivos de pensión), contributions give rise to a 'right of membership,' this does not render the rules of the system unalterable.
In this case, the bill under examination provides, in its Transitorio VI, that judicial employees who meet the requirements to acquire the right to a pension as established by the text of Título IX of Ley N°7333 of May 5, 1993, within the eighteen months following the enactment of this law, may retire under the provisions set forth in that text." That provision—even though it is discretionary for the legislature, meaning it could be absent without this constituting any constitutional infringement—allows for the conclusion that the changes to the scheme will not be applied in an abrupt or sudden manner" (OJ-104-2017 of August 16, 2017).
It is stated that, for the foregoing reasons, the period granted in the transitional provision under analysis meets the parameters required to guarantee the eventual rights of persons who satisfy the requirements set forth in the regulations, and that this ensures that no sudden amendment to the rule takes place; it is therefore considered that the claim must be rejected.
"V.- THE PRINCIPLE OF REASONABLENESS AS A CONSTITUTIONAL STANDARD. Constitutional jurisprudence has been clear and consistent in holding that the principle of reasonableness constitutes a constitutional standard… In conducting the reasonableness review, U.S. doctrine invites examination, first, of what is called 'technical reasonableness,' within which the specific rule (law, regulation, etc.) is examined. Once it is established that the chosen rule is appropriate for regulating a given subject matter, it must be examined whether there is proportionality between the means chosen and the end sought. Having passed the 'technical reasonableness' test, 'legal reasonableness' must be analyzed. For this purpose, this doctrine proposes examining: a) ponderative reasonableness, which is a type of legal assessment invoked when, given a certain predicate (e.g., income), a certain obligation is required (e.g., a tax), and it must be determined in this scenario whether the obligation is equivalent or proportionate; b) equality reasonableness, which is the type of legal assessment premised on the idea that equal predicates must have equal consequences, without arbitrary exceptions; c) purposive reasonableness, where the objective to be achieved is assessed to determine whether it conflicts with the ends contemplated by the legislature in its approval.
Within this same analysis, it is not sufficient to affirm that a means is reasonably suited to an end; it is also necessary to verify the nature and magnitude of the limitation that a personal right must bear by reason of that means. Thus, if the same end can be achieved through another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable…" It is further argued that, in this regard, the Constitutional Court in the ruling that analyzed the discretionary constitutional review (consulta facultativa de constitucionalidad) of expediente legislativo 19.922 stated:
"Now, from the foregoing it follows clearly that the right to retirement may be subject to limitations, just like any other fundamental right. This entails that there is no individual right to retire under specific conditions, since those conditions may be varied when necessary to guarantee the existence of a specific pension and retirement scheme, for otherwise conditions could arise that render the system financially unsustainable, which would ultimately result in the right to retirement being severely affected, or its exercise not being entirely possible, due to the absence of funds preventing payment of the retirement amount to the claimant. In view of this, the Sala considers that the challenged provisions are not unconstitutional, insofar as their purpose is precisely to guarantee the continuity of the Régimen de Pensiones y Jubilaciones del Poder Judicial, for which parameters and requirements were established based on the opinion of experts received by the Special Committee (Comisión Especial) that reviewed expediente legislativo número 19.922, as well as technical studies that confirmed the existence of a problem that could affect the sustainability of the aforementioned Scheme, and for which a series of recommendations were issued.
In that regard, upon finding that the variation of requirements established by Article 224 and the period set by Transitorio VI of the bill have as their ultimate purpose the guarantee of the retirement right of judicial employees, the Sala dismisses the alleged defect" (sentencia 2018-005758).
In addition to the foregoing, it is argued that the allegations raised by the petitioners have already been the subject of analysis by the Sala Constitucional with respect to the existence of technical parameters (reasonableness) underpinning the analyzed reform.
"In that regard, upon finding that, contrary to what is alleged in the initial brief, there does in fact exist a technical opinion supporting 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.
Furthermore, with respect to the second argument raised by the petitioners, the Court considers that, in essence, what is being questioned is whether the parameters that served as the basis for establishing the requirements to obtain the right to a pension were appropriate or not — an issue that does not mean the provision is unconstitutional, as the petitioners contend, and for that reason the defect is deemed non-existent" (ruling 2018-005758).
It notes that in the committee discussion minutes of legislative file number 19.922, it is stated that the technical study conducted by the Institute for Economic Research (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica was carried out with the participation of the Technical Committee established by the Judiciary (Poder Judicial), and therefore the law under review must be understood as not resting on arbitrary or capricious criteria — a matter already analyzed by the Sala Constitucional — and accordingly does not constitute any violation of the constitutional principles of reasonableness and proportionality.
"From a reading of the provisions cited above, it is apparent that they establish the requirements every public servant must meet in order to obtain a pension under the Pension and Retirement Scheme (Régimen de Pensiones y Jubilaciones) of the Poder Judicial. Now, in the opinion of this Court, the fact that no gender-based distinction is drawn in the terms mentioned by the petitioners does not give rise to a constitutional defect, since it must be borne in mind that the requirements for obtaining a retirement benefit are governed by objective criteria established on the basis of technical studies, which set requirements such as age and the number of contributions (cuotas) that an individual must fulfill in order to guarantee the sustainability of a pension scheme, regardless of the contributor's (cotizante's) gender. It must be kept in mind that the petitioners do not submit technical studies to substantiate the alleged unconstitutionality in a way that would objectively justify making the distinction they consider missing — which does not mean that, in the future, this Court, through subsequent constitutional review, might not analyze the grievance raised on the basis of pertinent technical studies that may be submitted.
Furthermore, the studies mentioned in the referral relate to other scenarios that are not applicable here, since they concern, among other things, working hours (jornadas), income, etc. Finally, it cannot be overlooked that, contrary to what is alleged in the referral, the IICE, in official letter No. 186-2017 of August 18, 2017, clearly and precisely establishes the following:
'c. Retirement age required and gender differences 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 of age for ordinary retirement. For service-based retirement, a gender distinction analogous to that established under the IVM scheme 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 on grounds of gender.' In light of the foregoing, the Court finds that the alleged defect is not present." It states that the argument raised — namely, that Article 224 of the challenged law does not address gender criteria — concerns a matter that has already been analyzed by the Sala Constitucional without giving rise to any constitutional defect, and therefore considers it should be dismissed. It concludes by stating that, based on the foregoing, the constitutional challenge (acción de inconstitucionalidad) must be declared without merit, as there is no violation of constitutional principles and no infringement of Articles 9, 11, 28, 33, 34, 40, 50, 51, 65, 73, 74, 121 paragraphs 13) and 22), 152, 154, 167, 177, 188, 189, and 190 of the Political Constitution.
married, Detention Custodian, resident of Cartago, Central, holder of national identity card 3-0279-0596, CARLOS HUMBERTO HERRERA SOLIS, of legal age, married, Attorney, resident of Cartago, La Unión, holder of national identity card 1-0837-0484, CARLOS LUIS CORRALES JIMENEZ, of legal age, married, Administrator, resident of Alajuela, Naranjo, holder of national identity card 2-0428-0157, CARLOS LUIS FRUTOS VASQUEZ, of legal age, married, Judicial Employee, resident of San José, Puriscal, holder of national identity card 6-0157-0030, CARLOS LUIS GARCIA APARICIO, of legal age, married, Auditor, resident of San José, Central, holder of national identity card 1-0860-0752, CARLOS LUIS GUTIERREZ BARQUERO, of legal age, married, Judicial Employee, resident of San José, Coronado, holder of national identity card 6-0164-0434, CARLOS LUIS VASQUEZ MEDINA, of legal age, married, Judicial Employee, resident of Limón, Guácimo, holder of national identity card 7-0086-0146, CARLOS MONGE NAVARRO, of legal age, in a common-law union, Judicial Employee, resident of San José, Pérez Zeledón, holder of national identity card 6-0251-0166, CARLOS PORRAS MORERA, of legal age, married, Investigation Officer, resident of San José, Tibás, holder of national identity card 5-0247-0389, CARLOS QUIRÓS TENORIO, of legal age, married, Technician, resident of Alajuela, San Ramón, holder of national identity card 1-0895-0474, CARLOS VENEGAS AVILES, of legal age, married, Attorney, resident of Guanacaste, Liberia, holder of national identity card 1-0899-0725, CARLOS ALBERTO PAEZ RODRÍGUEZ, of legal age, married, Administrative Technician, resident of San José, Hatillo 4, holder of national identity card 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, of legal age, resident of San José, Coronado, holder of national identity card 1-0903-0553, CARMELINA TAYLOR TAYLOR, of legal age, married, Judicial Technician, resident of Limón, Central, holder of national identity card 7-0068-0562, CAROLINA CHACON MEJIA, of legal age, single, Secretary, resident of San José, Desamparados, holder of national identity card 1-0741-0425, CATALINA ESPINOZA SAENZ, of legal age, divorced, Evaluator, resident of Alajuela, Central, holder of national identity card 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, of legal age, divorced, Communications Technician, resident of Puntarenas, Corredores, holder of national identity card 6-0198-0289, CESAR AUGUSTO BARRANTES ARRIETA, of legal age, married, Deputy Prosecutor, resident of Alajuela, Central, holder of national identity card 1-0934-0951, CINTHIA MAGALY VEGA CÉSPEDES, of legal age, single, Coordinating Technician, resident of Heredia, Santa Bárbara, holder of national identity card 4-0161-0385, CHIREY TAPIA MARTINEZ, of legal age, married, Administrative Technician, resident of Cartago, La Unión, holder of national identity card 1-0912-0363, CRISTIAN CORRALES RODRIGUEZ, of legal age, divorced, Canine Handler, resident of Alajuela, Naranjo, holder of national identity card 2-0473-0323, CRISTIAN GÓMEZ SOLIS, of legal age, married, Certified Public Accountant, resident of San José, Desamparados, holder of national identity card 3-0333-0388, CRUZ PORRAS BOLAÑOS, of legal age, divorced, Social Worker, resident of Cartago, La Unión, holder of national identity card 5-0213-0606, DANIA ARIAS SANDOVAL, of legal age, married, Licensed Accountant, resident of San José, Zapote, holder of national identity card 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, of legal age, married, Chemist, resident of Heredia, San Rafael, holder of national identity card 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, of legal age, married, Specialized Technician, resident of San José, Alajuelita, holder of national identity card 1-0820-0013, DEBORA RIVERA ROMERO, of legal age, married, Social Worker, resident of San José, Coronado, holder of national identity card 1-0702-0210, DELIA BAYLEY BLAKE, of legal age, married.
Administrative Technician, resident of San José, Goicoechea, bearer of identity card 7-0106-0462, DENIA ZUÑIGA ROSALES, of legal age, married, Judicial Employee, resident of Guanacaste, Santa Cruz, bearer of identity card 5-0255-0075, DENNIS MADRIGAL QUESADA, of legal age, single, Administrator, resident of San José, Central, bearer of identity card 1-0772-0406, DERRIL VILLEGAS SALAZAR, of legal age, married, Specialized Technician, resident of San José, Coronado, bearer of identity card 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, of legal age, married, Criminologist, resident of San José, Tibás, bearer of identity card 1-0844-0663, DIDIER JOSE MONTEALEGRE BEJARANO, of legal age, married, Industrial Engineer, resident of Alajuela, Central, bearer of identity card 1-0998-0884, DIEGO RODRÍGUEZ ZUMBADO, of legal age, married, Statistician, resident of Heredia, Barva, bearer of identity card 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, of legal age, married, Administrator, resident of Alajuela, San Mateo, bearer of identity card 2~0403-0367, DINORAH FLORES VILLALOBOS, of legal age, widowed, Judicial Employee, resident of San José, Curridabat, bearer of identity card 1-0762-0614, DIXON LI MORALES, of legal age, single, Industrial Engineer, resident of Heredia, San Francisco, bearer of identity card 1-0839-0369, DONALDO BERMUDEZ RODRÍGUEZ, of legal age, married, Judicial Investigator, resident of Puntarenas, El Roble, bearer of identity card 6-0260-0554, DONY DANIEL SOLANO ARAYA, of legal age, married, Criminalist, resident of San José, Pérez Zeledón, bearer of identity card 6-0270-0431, DORIS ROJAS GUZMÁN, of legal age, married, Judicial Coordinator 1, resident of San José, Goicoechea, bearer of identity card 1-0760-0176, DYALA LINKIMER VALVERDE, of legal age, single, Auditor, resident of San José, Moravia, bearer of identity card 2-0394-0312, EDDIE JOSE DIAZ SOIORZANO, of legal age, married, Lawyer, resident of Guanacaste, Tilarán, bearer of identity card 5-0202-0075, EDDY JAVIER RODA ABARCA, of legal age, married, Lawyer, resident of San Josè, Moravia, bearer of identity card 1-0607-0953, EDGAR GERARDO MORA ROMERO, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, bearer of identity card 5-0294-0965, EDUARDO BRICEÑO CABALCETA, of legal age, Judicial Employee, resident of San José, Central, bearer of identity card 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, of legal age, married, Judicial Employee, resident of San José, Central, bearer of identity card 1-738-0392, EDUARDO FALLAS BRENES, of legal age, common-law union, Investigation Chief 3, resident of Alajuela, Central, bearer of identity card 1-0588-0355, EDUARDO GÓMEZ VARGAS, of legal age, married, Judicial Employee, resident of Heredia, bearer of identity card 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, of legal age, divorced, Physicist, resident of Heredia, Barva, bearer of identity card 8-0066-0926, EDUARDO MOYA ROJAS, of legal age, single, Computer Engineer, resident of San José, Central, bearer of identity card 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, of legal age, married, Lawyer, resident of Cartago, Central, bearer of identity card 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, of legal age, divorced, Deputy Prosecutor, resident of Alajuela, San Ramón, bearer of identity card 2-0484-0865, EDWIN HERRERA CAMBRONERO, of legal age, married, Judicial Employee, resident of Cartago, Central, bearer of identity card 1-0578-0466, EDWIN MATA ELIZONDO, of legal age, single, Lawyer, resident of San José, Central, bearer of identity card 1-0801-0067, EIBOR PANIAGUA MARÍN, of legal age, single, Investigation Chief, resident of Cartago, Turrialba, bearer of identity card 3-0323-0494, EIDY ARAYA DÍAZ, of legal age, single, Judicial Coordinator, resident of Limón, Central, bearer of identity card 7-0080-0880, EIMY ESPINOZA ANCHÍA, of legal age, divorced, Judicial Coordinator, resident of Puntarenas, Golfito, bearer of identity card 6-0026-0919, ELIAS APU VARGAS, of legal age, single, Security Officer, resident of Guanacaste, Liberia, bearer of identity card 7-0088-0345, ELISANDRO TREJOS CHÁVES, of legal age, divorced, IT Specialist, resident of San José, Moravia, bearer of identity card 1-0871-0722, ELIZABETH BOLAÑOS MENA, of legal age, married, Administrator, resident of San José, Goicoechea, bearer of identity card 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, of legal age, married, Administrator, resident of San José, Central, bearer of identity card 2-0505-0891, ELMER HERNÁNDEZ CASTILLO, of legal age, married, Administrator, resident of Guanacaste, Santa Cruz, bearer of identity card 5-0247-0005, ELMER ORTIZ OBANDO, of legal age, married, Lawyer, resident of San José, Desamparados, bearer of identity card 2-0513-0201, ELPIDIO CALDERON CHAVES, of legal age, single, Computer Engineer, resident of San José, Hatillo, bearer of identity card 6-0211-0169, ELVIN VARGAS SALAZAR, of legal age, divorced, Licensed Accountant, resident of San José, Alajuelita, bearer of identity card 6-0164-0923, EMILCE MILEIDY GARCIA SOLANO, of legal age, married, Psychologist, resident of San José, Aserrí, bearer of identity card 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, of legal age, divorced, Lawyer, resident of San José, Aserrí, bearer of identity card 1-0905-0693, EMMA LÓPEZ RAMÍREZ, of legal age, married, Administrator, resident of Cartago, Central, bearer of identity card 6-0300-0418, ERICK ANTONIO MORA LEIVA, of legal age, married, Economist, resident of Cartago, La Unión, bearer of identity card 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, of legal age, married, Lawyer, resident of Guanacaste, Nicoya, bearer of identity card 1-0990-0489, ERICK CASTRO ZAMORA, of legal age, divorced, Judicial Expert, resident of San José, Tibás, bearer of identity card 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, of legal age, married, IT Specialist, resident of Limón, Central, bearer of identity card 1-0617-0454, ERICK LEWIS HERNÁNDEZ, of legal age, married, IT Specialist, resident of Heredia, San Francisco, bearer of identity card 4-0157-0803, ERICK RODRÍGUEZ MORA, of legal age, common-law union, Judicial Expert, resident of San José, Alajuelita, bearer of identity card 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, of legal age, married, Training Manager, resident of Heredia, Santa Bárbara, bearer of identity card 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, of legal age, divorced, Licensed Administrator, resident of Heredia, Barva, bearer of identity card 1-0921-0625, ERIKA LEIVA DÍAZ, of legal age, married, Judicial Employee, resident of San José, Goicoechea, bearer of identity card 1-0905-0024, ERIKA MORALES CUBILLO, of legal age, married, Judicial Coordinator, resident of Puntarenas, Central, bearer of identity card 1-0885-0266, ERIKA VILLALOBOS SOLANO, of legal age, married, IT Specialist, resident of Alajuela, San Rafael, bearer of identity card 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, of legal age, single, Specialized Technician, resident of Cartago, Juan Viñas, bearer of identity card 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, of legal age, single, Criminologist, resident of Heredia, Central, bearer of identity card 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, of legal age, single, Judicial Coordinator, resident of Puntarenas, Comedores, bearer of identity card 6-0237-0005, ESTHER JIMÉNEZ AVILES, of legal age, married, Social Worker, resident of Puntarenas, Central, bearer of identity card 1-0835-0109, EUGENIA ARIAS QUESADA, of legal age, single, IT Specialist, resident of Cartago, Central, bearer of identity card 3-0287-0420, EUNICE OBANDO SOLANO, of legal age, single, Judicial Employee, resident of San José, Central, bearer of identity card 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, of legal age, divorced, Social Worker, resident of Alajuela, San Ramón, bearer of identity card 2-0377-0039, EVERALDO ALFARO FERLINI, of legal age, married, Criminalist, resident of San José, Coronado, bearer of identity card 1-0771-0854, EZEQUIEL ÁLVAREZ CABEZAS, of legal age, married, Judicial Employee, resident of Heredia, Santo Domingo, bearer of identity card 1-1046-0548, FABIAN GORDIANO MONTERO MONTERO, of legal age, married, Judicial Employee, resident of San José, Coronado, bearer of identity card 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, of legal age, divorced, Administrator, resident of San José, Central, bearer of identity card 1-0822-0756, FIORELLA PÉREZ FONSECA, of legal age, married, Administrative Technician 1, resident of Guanacaste, Liberia, bearer of identity card 5-0300-0115, FLOR BRENES HERNANDEZ, of legal age, single, Secretary, resident of San José, Central, bearer of identity card 1-0886-0825, FLOR MARÍA MURILLO VINDAS, of legal age, single, Social Worker, resident of Alajuela, Poás, bearer of identity card 2-0458-0802, FLORA MARÍA CORDERO ROJAS, of legal age, single, Communications Technician, resident of Puntarenas, Esparza, bearer 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 2-0497-0271, 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, Auxiliary Services Worker, resident of San José, Puriscal, holder of identity card 1-0602-0162, FRANCOISE RODRÍGUEZ CORONADO, of legal age, common-law union, 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 1-0900-0131, 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 1-0725-0918, GAUDY AGUILAR ALFARO, of legal age, married, Computer Specialist, 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, Computer Specialist, 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, Licensed Chemist, 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, Licensed Attorney, resident of Heredia, Barva, holder of identity card 6-0222-0170, GUSTAVO RODRIGUEZ 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 7-0075-0104, 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 union, Communications Technician, resident of Guanacaste, Nicoya, holder of identity card 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, of legal age, common-law union, Communications Officer, resident of Guanacaste, Liberia, holder of identity card 5-0242-0405, HAZEL ALFARO GONZÁLEZ, of legal age, married, Occupational Health Specialist, 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 1-0819-0354, 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 7-0112-0315, 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, Deputy 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 union, 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 union, 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 1-0911-0387, 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 union, Judicial Employee, resident of Guanacaste, Santa Cruz, holder of identity card 5-0235-0765, 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, JAVIER 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 QUESADA QUESADA, of legal age, married, Chief Investigator 3, resident of San José, Central, holder of identity card 1-0739-0219, JAVIER VINDAS 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, re 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, in a common-law union, 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, holder of 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, widowed, Accountant, resident of Cartago, Central, holder of identity card 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, of legal age, married for the second time, 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, Information Technology 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 1-0772-0917, 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, Graduate 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 2-0486-0526, JUAN 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 5-0215-0175, KAREN ALFARO VARGAS, of legal age, in a common-law union, 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 1-0910-0203, 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 2-0514-0769, 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 1-0701-0539, 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 1-0793-0718, 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 1-0708-0472, 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 Support Officer, 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 identity 7-01 1 1-0674, LILLIANA SABORIO SABORÍO, of legal age, divorced, Administrator, resident of Alajuela, Grecia, bearing national identity card number 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, of legal age, single, Judicial Employee, resident of Alajuela, San Carlos, bearing national identity card number 2-0497-0272, LIZETH BARAHONA CASTILLO, of legal age, divorced, Judicial Technician 3, resident of Limón, Central, bearing national identity card number 7-0097-0842, LIZETH ROGERS ROGERS, of legal age, married, Judicial Employee, resident of Limón, Central, bearing national identity card number 7-0101-0960, LIZETTE BRENES ARCE, of legal age, married, Judicial Technician, resident of San José, Guadalupe, bearing national identity card number 1-0715-0167, LIZZETH CRUZ TORRES, of legal age, divorced, Social Worker, resident of Heredia, Mercedes Norte, bearing national identity card number 1-0615-0237, LORELEY CERDAS ÁVILA, of legal age, married, Microbiologist, resident of Alajuela, Desamparados, bearing national identity card number 1-0723-0311, LORENA RODRÍGUEZ SALAS, of legal age, single, Judicial Employee, resident of San José, Central, bearing national identity card number 1-0744-0409, LOURDES ANGULO JIMÉNEZ, of legal age, married, Attorney, resident of Guanacaste, Nicoya, bearing national identity card number 5-0257-0944, LUCRECIA ROJAS ROJAS, of legal age, married, Auditor, resident of Cartago, San Nicolas, bearing national identity card number 3-0272-0321, LUIS ÁLVAREZ VINDAS, of legal age, married, Judicial Investigator, resident of Alajuela, Naranjo, bearing national identity card number 2-0417-0295, LUIS ANGEL MATAMOROS ARIAS, of legal age, divorced, Custodian, resident of San José, Hatillo, bearing national identity card number 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, of legal age, divorced, Administrator, resident of Cartago, La Unión, bearing national identity card number 1-0793-0256, LUIS DIEGO CHAVARRIA GARCÍA, of legal age, married, Attorney, resident of San José, Aserrí, bearing national identity card number 1-0948-01 18, LUIS DIEGO ZARATE MORALES, of legal age, single, Administrative Technician, resident of San José, Curridabat, bearing national identity card number 1-0993-0395, LUIS EDUARDO RODRÍGUEZ QUIRÓS, of legal age, divorced, Criminology Professional, resident of San José, San Sebastián, bearing national identity card number 1-0605-0013, LUIS ENRIQUE ARROYO ACUÑA, of legal age, divorced, Systems Engineer, resident of San José, Goicoechea, bearing national identity card number 1-0626-0336, LUIS ENRIQUE LEÓN RODRIGUEZ, of legal age, married, Criminal Analyst, resident of Guanacaste, Liberia, bearing national identity card number 5-0313-0263, LUIS FALLAS PIVA, of legal age, married, Administrative Assistant, resident of Alajuela, Central, bearing national identity card number 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, of legal age, married, Administrative Assistant, resident of Heredia, Santa Bárbara, bearing national identity card number 1-0884-0317, LUIS FERNANDO RODRIGUEZ ARTAVIA, of legal age, married, Criminalist, resident of Alajuela, San Carlos, bearing national identity card number 2-0467-0324, LUIS FERNANDO SOLIS VILLEGAS, of legal age, divorced, Judicial Employee, resident of San José, Central, bearing national identity card number 1-0576-0916, LUIS FERNANDO SAEDWIN MATAREZ JIMÉNEZ, of legal age, married, Attorney, resident of Guanacaste, Liberia, bearing national identity card number 1-0738-0178, LUÍS GERARDO MARTINEZ GARCIA, of legal age, in a common-law union, Security Officer, resident of Guanacaste, Liberia, bearing national identity card number 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, of legal age, in a common-law union, Judicial Expert, resident of Guanacaste, Nicoya, bearing national identity card number 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, of legal age, married, Administrator, resident of San José, Montes de Oca, bearing national identity card number 1-0784-0409, LUIS GUILLERMO COTO QUESADA, of legal age, single, Maintenance Technician, resident of Cartago, La Unión, bearing national identity card number 3-0242-0147, LUIS GUILLERMO VASQUEZ UREÑA, of legal age, married, Accountant, resident of San José, Aserrí, bearing national identity card number 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, of legal age, in a common-law union, Judicial Technician, resident of Guanacaste, Nicoya, bearing national identity card number 5-0240-0795, LUIS MANUEL RAMIREZ SOLÍS, of legal age, divorced, resident of Santa Bárbara de Heredia, bearing national identity card number 2-0435-0895, LUIS MATAMOROS CARVAJAL, of legal age, married, Judicial Employee, resident of Cartago, La Unión, bearing national identity card number 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, of legal age, single, Investigator, resident of San José, Goicoechea, bearing national identity card number 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, of legal age, single, Attorney, resident of Heredia, Central, bearing national identity card number 1-0802-0480, LUIS RODRIGO GUTIERREZ ARGUEDAS, of legal age, married, Investigation Officer, resident of Guanacaste, Nicoya, bearing national identity card number 1-0940-0199, LUIS RODRÍGUEZ CRUZ, of legal age, married, Judicial Employee, resident of Limón, Central, bearing national identity card number 7-0090-0234, LUIS VASQUEZ VALLEJOS, of legal age, single, Coordinator, resident of Guanacaste, Liberia, bearing national identity card number 5-0247-0313, KATIA MARCELA SABORIO SOTO, of legal age, divorced, Administrative Supervisor 4, resident of Cartago, El Guarco, bearing national identity card number 4-0137-0134, MABEL MURILLO ARCE, of legal age, married, Secretary, resident of Guanacaste, Santa Cruz, bearing national identity card number 2-0443-0636, MAGALIE VARGAS JOHNSON, of legal age, married, Administrator, resident of Limón, Central, bearing national identity card number 7-0090-0188, MALCO MONTOYA RAMÍREZ, of legal age, married, Administrative Assistant, resident of Guanacaste, Liberia, bearing national identity card number 5-0262-0199, MANFRED QUESADA SÁNCHEZ, of legal age, married, Investigation Supervisor 3, resident of Alajuela, Palmares, bearing national identity card number 6-0268-0546, MANUEL ALEJANDRO TORRES CASTRO, of legal age, married, Administrator, resident of San José, Moravia, bearing national identity card number 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, of legal age, married, Telematics Technician, resident of San José, Coronado, bearing national identity card number 1-0708-0291, MANUEL ERNESTO DURAN CASTRO, of legal age, married, Judicial Employee, resident of San José, San Francisco, bearing national identity card number 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, of legal age, married, Judicial Employee, resident of San José, Tibás, bearing national identity card number 6-0231-0761, MANUEL OREAMUNO ZEPEDA, of legal age, married, Chemistry Graduate, resident of Heredia, Santo Domingo, bearing national identity card number 1-0859-0237, MANRIQUE MORALES MONTIEL, of legal age, divorced, Judicial Employee, resident of Puntarenas, Central, bearing national identity card number 6-027 1-0224, MARCELA MADRIZ ARCE, of legal age, married, Psychologist, resident of Alajuela, San Ramón, bearing national identity card number 3-0271-0457, MARCELA ZUÑIGA JIMÉNEZ, of legal age, married, Administrator, resident of Cartago, Los Ángeles, bearing national identity card number 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, of legal age, divorced, Courtroom Technician, resident of San José, Zapote, bearing national identity card number 1-0518-0695, MARCO ANTONIO CARRION HERNÁNDEZ, of legal age, divorced, Investigation Supervisor, resident of San José, Central, bearing national identity card number 1-0817-0932, MARCO ANTONIO HERRERA CHARRAUN, of legal age, married, Audiovisual Producer, resident of San José, Montes de Oca, bearing national identity card number 1-0870-0028, MARCO BADILLA BERMUDEZ, of legal age, married, Investigator, resident of Guanacaste, Liberia, bearing national identity card number 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, of legal age, divorced, Investigation Officer, resident of Cartago, Turrialba, bearing national identity card number 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, of legal age, married, Attorney, resident of Cartago, El Guarco, bearing national identity card number 1-0801-0273, MARCO VINICIO PORRAS MORALES, of legal age, single, Investigation Officer, resident of Alajuela, Naranjo, bearing national identity card number 2-0429-0412, MARCO VINICIO RODRIGUEZ ARAGÓN, of legal age, married, Civil Engineer, resident of Alajuela, La Guácima, bearing national identity card number 2-0485-0423, MARCONY ARBUROLA VALVERDE, of legal age, married, Investigation Officer, resident of San José, Desamparados, bearing national identity card number 5-0246-0169, MARGARITA CERDAS VEGA, of legal age, married, Judicial Employee, resident of Guanacaste, Liberia, bearing national identity card number 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELASQUEZ, of legal age, divorced, Judicial Employee, resident of Limón, Central, bearing national identity card number 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, of legal age, single, Judicial Coordinator 2, resident of San José, Goicoechea, bearing national identity card number 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, Licensed Chemist, 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, Researcher, 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, Certified 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, Head 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, Office 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, Process Server, 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 4-0150-0093, 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, Licensed Administrator, 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, Computer Specialist, resident of Alajuela, Central, holder of identity card 1-0726-0721, 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 1-0919-0111, 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 1-0747-0185, 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 1-1006-0605, 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 Staff, resident of Guanacaste, Liberia, holder of identity card 5-0309-0547, MOISÉS ALVARADO CHACON, of legal age, married, Researcher, 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 1-0619-0414, OLDEMAR CERDAS JUÁREZ, of legal age, married, Researcher, 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, widowed, 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 5, 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, Computer Specialist, resident of Cartago, La Unión, holder of identity card 1-0730-0335, 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 national identity card 4-0154-0227, OSVALDO LÓPEZ MORA, of legal age, married, Attorney, resident of San José, Desamparados, holder of national identity card 1-0926-0995, OSVALDO RODRÍGUEZ FLORES, of legal age, married, Communications Technician, resident of Limón, Matina, holder of national identity card 6-0251-0813, OSWALDO JOSÉ VASQUEZ MADRIGAL, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of national identity card 3-0301-0666, PABLO MACEO SOTO, of legal age, married, Communications Technician, resident of Limón, Central, holder of national identity card 7-0112-0501, PABLO ROLDAN UMAÑA, of legal age, divorced, Industrial Engineer, resident of San José, Escazú, holder of national identity card 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, of legal age, married, Accountant, resident of Heredia, Barva, holder of national identity card 4-0161-0248, PATRICIA FALLAS MELENDEZ, of legal age, divorced, Chemist, resident of Cartago, Tres Ríos, holder of national identity card 1-0660-0570, PATRICIA RIVERA SANDOVAL, of legal age, married, Judicial Employee, resident of San José, Central, holder of national identity card 1-0782-0780, PATRICIA WO CHING MOK, of legal age, single, Secretary, resident of San José, Montes de Oca, holder of national identity card 7-O094-0757, PAULO HUMBERTO MENA QUESADA, of legal age, married, Administrator, resident of Cartago, Central, holder of national identity card 3-0331-Ol09, PEDRO ARCE GONZÁLEZ, of legal age, married, Unit Chief, resident of Alajuela, Atenas, holder of national identity card 2-0385-0931, PEDRO BONILLA PICADO, of legal age, married, Judicial Employee, resident of Puntarenas, Osa, holder of national identity card 6-Ol60-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, of legal age, married, Attorney, resident of San José, Coronado, holder of national identity card 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, of legal age, married, Judicial Employee, resident of Alajuela, El Roble, holder of national identity card 2-0490-0234, RAFAEL DAVID VEGA SEGURA, of legal age, married, Attorney, resident of Puntarenas, Puerto Jiménez, holder of national identity card 1-0791-0159, RAFAEL NAVARRETE BRENES, of legal age, married, Chief Investigator, resident of Limón, Central, holder of national identity card 7-0104-0669, RAFAEL UREÑA BARRIOS, of legal age, divorced, Administrative Technician, resident of San José, San Francisco, holder of national identity card 1-0915-0224, RALOXS ALVARADO CASCANTE, of legal age, married, Security Supervisor, resident of Alajuela, La Guácima, holder of national identity card 1-0873-0410, RAMÓN ANGULO ROLDÁN, of legal age, married, Judicial Employee, resident of Heredia, Central, holder of national identity card 1-0554-0410, RANDALL RODRIGUEZ ULATE, of legal age, married, Judicial Employee, resident of Cartago, El Tejar, holder of national identity card 1-0783-0793, RANDY MARTÍN TREJOS MORALES, of legal age, married, Attorney, resident of San José, Pérez Zeledón, holder of national identity card 1-0758-0892, RAQUEL RAMIREZ BONILLA, of legal age, married, Administrator, resident of San José, holder of national identity card 1-0997-0349, RASHID BEIRUTE GRANADOS, of legal age, legally separated, Judicial Coordinator, resident of Guanacaste, Nicoya, holder of national identity card 5-0243-0570, RAYVAN MC LEOD BIGSBY, of legal age, married, Services Assistant, resident of Limón, Central, holder of national identity card 7-0102-0768, REBECA GUARDIA MORALES, of legal age, divorced, Attorney, resident of Heredia, Lagunilla, holder of national identity card 1-0808-0973, REBECCA ARTAWA BRUNO, of legal age, married, Licentiate in Communication, resident of Cartago, Tres Ríos, holder of national identity card 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, of legal age, single, Computer Engineer, resident of San José, Central, holder of national identity card 1-0548-0407, RICARDO CALDERÓN VALVERDE, of legal age, married, Investigator, resident of San José, Pérez Zeledón, holder of national identity card 9-0098-0557, RICARDO GARCÍA MOLINA, of legal age, single, Accountant, resident of Cartago, La Unión, holder of national identity card 4-Ol70-0018, RITA CASTRO ABARCA, of legal age, married, Accountant, resident of Cartago, La Unión, holder of national identity card 2-0456-0750, RITA MARÍA QUIRÓS OBANDO, of legal age, single, Systems Analyst, resident of San José, Zapote, holder of national identity card 1-0758-0598, ROBERTO CARLOS PÉREZ VARGAS, of legal age, divorced, Investigation Officer, resident of Cartago, Oreamuno, holder of national identity card 1-0897-0374, ROBERTO HAMBELANT ZELEDON, of legal age, married, Attorney, resident of Limón, Central, holder of national identity card 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, of legal age, married, Judicial Employee, resident of San José, Hatillo, holder of national identity card 1-0813-0303, ROCÍO PICADO VARGAS, of legal age, divorced, Administrator, resident of San José, San Pedro, holder of national identity card 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, of legal age, single, Administrator, resident of San José, Barrio México, holder of national identity card 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, of legal age, divorced, Communications Technician, resident of Guanacaste, Nicoya, holder of national identity card 5-0235-9378, RODNEY GEORJANNY EARL BROWN, of legal age, married, Legal Professional, resident of Limón, Pueblo Nuevo, holder of national identity card 1-0930-0027, RODRIGO CAMPOS ESQUIVEL, of legal age, married, Attorney, resident of Guanacaste, Liberia, holder of national identity card 1-0706-0332, RODRIGO CASTRO SOLIS, of legal age, married, Judicial Employee, resident of San José, Moravia, holder of national identity card 7-OIOI-0028, RODRIGO CHAVES CALVO, of legal age, married, Administrator, resident of San José, Central, holder of national identity card 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, of legal age, divorced, Attorney, resident of San José, Central, holder of national identity card 1-0903-0505, ROELIS REYES PICHARDO, of legal age, divorced, Criminologist, resident of Cartago, Central, holder of national identity card 5-0273-0355, ROGER JIMÉNEZ FAJARDO, of legal age, divorced, Judicial Employee, resident of Guanacaste, Nicoya, holder of national identity card 5-0244-0772, ROGER ULISES CAMPOS MUÑOZ, of legal age, married, Judicial Employee, resident of San José, San Sebastián, holder of national identity card 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, of legal age, married, Detainee Custodian, resident of Limón, Pococí, holder of national identity card 1-0538-0903, RONALD ABARCA SOLANO, of legal age, married, Attorney, resident of San José, Central, holder of national identity card 3-0282-0138, RONALD SOLÍS JIMÉNEZ, of legal age, married, Judicial Employee, resident of San José, Escazú, holder of national identity card 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, of legal age, divorced, Judicial Investigator, resident of San José, Curridabat, holder of national identity card 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, of legal age, single, Administrator, resident of Heredia, San Joaquín, holder of national identity card 4-0125-0931, ROSE MARY LAWRENCE MORA, of legal age, divorced, Attorney, resident of San José, Desamparados, holder of national identity card 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, of legal age, divorced, Journalist, resident of San José, Central, holder of national identity card 1-0852-0854, ROSIBEL BRENES ALVARADO, of legal age, divorced, Business Administrator, resident of Heredia, San Rafael, holder of national identity card 4-0162-0518, ROSIBEL BRENES REYES, of legal age, married, Secretary, resident of Heredia, Central, holder of national identity card 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, of legal age, married, Administrator, resident of San José, Desamparados, holder of national identity card 1-0698-0291, ROXANA GÓMEZ BARQUERO, of legal age, married, Judicial Employee, resident of Cartago, Central, holder of national identity card 9-0075-0148, ROXANA HIDALGO VEGA, of legal age, single, Administrator, resident of San José, Zapote, holder of national identity card 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, of legal age, single, Judicial Employee, resident of Alajuela, Central, holder of national identity card 1-0652-0137, ROXANA MESÉN FONSECA, of legal age, married, Social Worker, resident of San José, Moravia, holder of national identity card 1-0850-0833, ROY FERNANDO VARGAS NARANJO, of legal age, married, Attorney, resident of San José, Desamparados, holder of national identity card 1-0919-0152, RUTH LORENA SABORIO NÚÑEZ, of legal age, married, Judicial Coordinator 3, resident of San José, Calle Blancos, holder of national identity card 1-0971-0856, SABAS GARCÍA LEAL, of legal age, married, Investigator, resident of San José, Alajuelita, holder of national identity card 5-0220-0011, SANDRA GÓMEZ AGUILAR, of legal age, single, Secretary, resident of Alajuela, San Ramón, holder of national identity card 3-0262-0507, SANDRA PÉREZ OBANDO, of legal age, married, Judicial Employee, resident of San José, Guadalupe, holder of national identity card 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, of legal age, widowed, Investigator, resident of Guanacaste, Nicoya, holder of national identity card 5-O219-0232, SANTIAGO ALFONSO ARAYA GUTIÉRREZ, of legal age, divorced, Attorney, resident of Heredia, Central, holder of national identity card 1-0826-0278, SAUL RETANA LÓPEZ, of legal age, married, Protection Agent, resident of San José, Desamparados, holder of national identity card 1-0630-0113, SEIDY JIMÉNEZ BERMUDEZ, of legal age, single, Administrator, resident of Guanacaste, Liberia, holder of national identity card 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, of legal age, married, Architect, resident of San José, Santa Ana, holder of national identity card 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, of legal age, single, Judicial Employee, resident of Limón, Central, holder of national identity card 7-0105-0414, SHIRLEY AZOFEIFA JIMENEZ, of legal age, married, Judicial Expert, resident of San José, Pérez Zeledón, holder of national identity card 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, of legal age, single, Administrator, resident of Limón, Central, holder of national identity card 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, of legal age, single, Administrator, resident of Alajuela, San Carlos, holder of national identity card 2-0497-0859, SHIRLEY ROJAS BARRANTES, of legal age, single, Attorney, resident of Guanacaste, Santa Cruz, holder of national identity card 5-0240-0923, SHIRLEY VASQUEZ CASTAÑEDA, of legal age, married, Judicial Technician, resident of Heredia, Central, holder of national identity card 6-0234-0401, SILWA CASCANTE RUEDA, of legal age, married, Analyst, resident of Heredia, Barva, holder of national identity card 6-0241-0939, SILVIA CHINCHILLA PORRAS, of legal age, married, Judicial Employee, resident of San José, Central, holder of national identity card 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, of legal age, divorced, Secretary, resident of San José, Hatillo, holder of national identity card 6-0260-0388, SILVIA EMILIA MORA JIMENEZ, of legal age, married, Judicial Technician 2, resident of Cartago, La Unión, holder of national identity card 1-O791-0964, SILVIA ESPINOZA ACEVEDO, of legal age, married, Judicial Technician, resident of Guanacaste, Liberia, holder of national identity card 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, of legal age, married, Judicial Employee, resident of San José, Tibás, holder of national identity card 1-0977-0164, SILVIA PALMA ELIZONDO, of legal age, married, Attorney, resident of San José, Montes de Oca, holder of national identity card 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, of legal age, married.
Judicial Technician, resident of Puntarenas, Corredores, bearing national identity card 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, of legal age, divorced, Judicial Employee, resident of San José, Central, bearing national identity card 1-0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, of legal age, divorced, Administrative Assistant, resident of Limón, Central, bearing national identity card 7-0091-0008, SONIA ISABEL GAMBOA ROJAS, of legal age, married, Professional 1, resident of Alajuela, San Carlos, bearing national identity card 2-0346-0839, SONIA RAMÍREZ THORPE, of legal age, married, Judicial Coordinator, resident of Limón, Central, bearing national identity card 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, of legal age, married, Social Worker, resident of Cartago, La Unión, bearing national identity card 5-0222-0182, STEVEN PICADO GAMBOA, of legal age, single, Administrator, resident of Heredia, Central, bearing national identity card 1-0982-0768, SUGEY FONSECA PORRAS, of legal age, divorced, Administrator, resident of San José, San Sebastián, bearing national identity card 1-1073-0434, SUGEY QUESADA VALERIN, of legal age, married, Secretary, resident of Limón, Central, bearing national identity card 7-0116-0302, SUSANA ALFARO SOTO, of legal age, single in common-law union, Chemical Laboratory Technician, resident of Alajuela, Sarchí, bearing national identity card 1-0944-0249, TANIA MARÍA PÉREZ BARRANTES, of legal age, married, Systems Engineer, resident of San José, Montes de Oca, bearing national identity card 1-0825-0973, TERESA JIMÉNEZ ROJAS, of legal age, married, Judicial Coordinator 2, resident of Puntarenas, Golfito, bearing national identity card 6-0172-0033, TERESITA BOLAÑOS ROJAS, of legal age, single, Judicial Employee, resident of San José, Central, bearing national identity card 1-0685-0508, TONY ACUÑA PANIAGUA, of legal age, single, Secretary, resident of San José, Pavas, bearing national identity card 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, of legal age, married, Judicial Coordinator, resident of Guanacaste, Liberia, bearing national identity card 5-0222-0486, VANESSA VILLALOBOS MONTERO, of legal age, married, Psychologist, resident of Alajuela, San Ramón, bearing national identity card 2-0484-0081, VANLLY CANTILLO GAMBOA, of legal age, single, Attorney, resident of San José, Curridabat, bearing national identity card 1-0874-0062, VERA VARGAS BARRANTES, of legal age, divorced, Judicial Technician 2, resident of San José, Central, bearing national identity card 1-0818-0806, VÍCTOR ADRIAN RODRÍGUEZ MÉNDEZ, of legal age, married, Administrative Technician 2, resident of Heredia, Santa Bárbara, bearing national identity card 1-0730-0506, VICTOR FERNANDEZ VARGAS, of legal age, in common-law union, Criminalist, resident of Heredia, Santo Domingo, bearing national identity card 1-0889-0754, VICTOR HUGO CHAVES CHAVARRÍA, of legal age, married, Attorney, resident of Guanacaste, Santa Cruz, bearing national identity card 2-0443-0030, VÍCTOR MANUEL AZOFEIFA MONGE, of legal age, in common-law union, Investigator, resident of San José, Goicoechea, bearing national identity card 1-0703-0316, VICTORIA OVIEDO SOTO, of legal age, married, Psychologist, resident of Alajuela, Central, bearing national identity card 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, of legal age, married, Attorney, resident of San José, Montes de Oca, bearing national identity card 1-0642-0719, WAIMAN HIN HERRERA, of legal age, married, Administrator, resident of San José, Aserrí, bearing national identity card 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, of legal age, single, Assistant, resident of San José, Hatillo, bearing national identity card 7-0082-0466, WALTER GONZALEZ FALLAS, of legal age, single, Attorney, resident of San José, Desamparados, bearing national identity card 1-0818-0248, WALTER GUEVARA LARA, of legal age, married, Attorney, resident of Cartago, El Tejar, bearing national identity card 6-0180-0728, WILBERT KIDD ALVARADO, of legal age, married, Economist, resident of Cartago, La Unión, bearing national identity card 4-0149-0623, WILLIAM ALEJANDRO PERALTA VILLALTA, of legal age, married, Accountant, resident of Heredia, Santo Domingo, bearing national identity card 1-0923-0060, WILLIAM CALDERÓN NAVARRO, of legal age, single, Attorney, resident of Puntarenas, Corredores, bearing national identity card 6-0212-0756, WILLIAM MATTHEWS SALAS, of legal age, married, Investigation Officer, resident of Cartago, Turrialba, bearing national identity card 7-0084-0745, WILLIAM MORA DURAN, of legal age, married, Investigator, resident of San José, Acosta, bearing national identity card 1-0621-0390, WILKIN PORRAS ALVAREZ, of legal age, married, Judicial Employee, resident of San José, Guadalupe, bearing national identity card 1-0772-0252, WILMAR ANTONIO JIMÉNEZ DÍAZ, of legal age, divorced, Communications Technician, resident of Guanacaste, Nicoya, bearing national identity card 5-0023-0406, WILMAR PÉREZ BERMUDEZ, of legal age, divorced, Judicial Employee, resident of Guanacaste, Nicoya, bearing national identity card 5-0237-0488, XARY BRICEÑO ALVAREZ, of legal age, divorced, Administrator, resident of San José, Zapote, bearing national identity card 7-0085-0762, XINIA BARRIENTOS ARROYO, of legal age, single, Secretary, resident of San José, Central, bearing national identity card 1-0976-0204, XINIA MARIA ZAMORA OVARES, of legal age, married, Judicial Employee, resident of Cartago, Turrialba, bearing national identity card 3-0294-0379, XINIA VEGA GUZMÁN, of legal age, married, Judicial Employee, resident of Cartago, Central, bearing national identity card 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, of legal age, single, Administrator, resident of Cartago, Central, bearing national identity card 1-0870-0973, YARMILA ULATE YOUNG, of legal age, married, Attorney, resident of Puntarenas, Corredores, bearing national identity card 1-0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, of legal age, divorced, Detainee Custodian, resident of San José, Central, bearing national identity card 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, of legal age, single, Secretary, resident of Heredia, San Pablo, bearing national identity card 1-0664-0089, YENSY CAMPOS BARBOZA, of legal age, married, Judicial Technician, resident of Guanacaste, Liberia, bearing national identity card 5-0293-0434, YESENIA MARIA MELENDEZ VARELA, of legal age, single, Librarian, resident of Cartago, Oreamuno, bearing national identity card 1-1404-0477, YESENIA PANIAGUA GÓMEZ, of legal age, single, Psychologist, resident of San José, Zapote, bearing national identity card 1-0845-0494, YESENIA ZAMORA BADILLA, of legal age, single, IT Specialist, resident of San José, Central, bearing national identity card 1-0991-0793, YORLENDA SPENCE THOMAS, of legal age, single, Judicial Technician, resident of Limón, Central, bearing national identity card 7-0103-0835, YORLENY CHING CUBERO, of legal age, Judicial Employee, resident of San José, Central, bearing national identity card 7-0119-0457, YORLENY FERRETO SOLANO, of legal age, divorced, Attorney, resident of Heredia, Central, bearing national identity card 4-0155-0255, YORLENY SALAZAR NARANJO, of legal age, single, Attorney, resident of San José, Ciudad Colón, bearing national identity card 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, of legal age, married, Judicial Employee, resident of San José, Central, bearing national identity card 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, of legal age, married, Attorney, resident of Guanacaste, Liberia, bearing national identity card 5-0262-0980, and YURLY ARGUELLO ARAYA, of legal age, married, Process Manager, resident of Heredia, San Isidro, bearing national identity card 1-0870-0756, and states that, in accordance with the provisions of Articles 81 and 83 of the Law of Constitutional Jurisdiction and within the time period set forth in the resolution of 1:05 p.m. on February 22, 2019, which admitted the unconstitutionality actions consolidated with actions n° 19-007819-0007-CO, processed under case 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, in her personal capacity 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 — appear to file an ACTIVE INTERVENTION (coadyuvancia activa) within the legally prescribed time period granted, on the grounds that their represented parties have matters pending as of the date of the filing of the aforementioned actions, and furthermore that ALL of them have a legitimate interest by virtue of the automatic application of Transitorio VI, contained in Ley n° 9544, Ley de Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, incorporated within Ley n° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993 and its amendments, given that all of them have MORE THAN TWENTY YEARS OF CONTRIBUTIONS to the Fondo de Jubilaciones y Pensiones del Poder Judicial.
The filing argues that intervention in the pending actions is warranted because Ley No. 9544, its enactment procedure within case No. 19.922, and specifically Transitorio 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 and related provisions of the Political Constitution of Costa Rica, and Articles 29, 30, 31, 33, 35, 38, 44, 45, 46, 49, 50, 51, and 53 of the Law of Constitutional Jurisdiction, which it considers to be the case on the basis of the following grounds.
As is correctly noted in the actions filed, the provisions and actions of the Legislative Assembly gave rise to the enactment of an unconstitutional Law, preceded by a null parliamentary procedure. For its part, it is argued that the Superior Council of the Judicial Branch, through its administrative acts, put into execution an unconventional and unconstitutional law, and that acting without having the competence to apply the powers established in said law gives rise to unconstitutionalities and violations of the fundamental rights and freedoms of the plaintiffs and of those they represent, as indicated in article 29 of the Law of Constitutional Jurisdiction. It is noted that the actions filed are supported, since, in its view, Ley 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 following and concordant articles of the Political Constitution of Costa Rica, article 208 bis of the Reglamento de la Asamblea Legislativa, as well as the Democratic, Equality, Publicity, Solidarity, Legal Certainty, Good Faith, Legitimate Expectations, Transparency, Relative Inviolability of Assets (Intangibilidad Relativa del Patrimonio), Non-Confiscation, and Respect for Acquired Rights and Consolidated Legal Situations principles, as will be set forth below.
It is argued that there are grounds for unconstitutionality both in form and in substance. It is stated that, with respect to procedure, there is unconstitutionality in the publication, given that a text different from the one that was approved was published. It is indicated that, as the plaintiffs correctly note, the substitute text approved in the Reporting Committee (Comisión Dictaminadora) of Legislative File No. 19.922 on September 13, 2016, was published in the Gaceta and duly submitted for consultation to the Judicial Branch; however, that text was neither the one approved in the first debate by the Legislative Assembly on October 30, 2017, nor the one published in Gaceta N° 268 of November 9, 2017. It is argued that the foregoing action by the Legislative Assembly is contrary to the motion approved pursuant to article 208 bis of the Reglamento de la Asamblea Legislativa and, consequently, contrary to constitutional law, since the minimum procedures required by a special parliamentary procedure such as the one followed in the case of the aforementioned file were not observed.
It is noted that the failure to publish the approved text entails a violation of the legislative procedure that taints the approved Law with unconstitutionality. It is worth noting that within the procedure established for the approval of Ley n° 9544, it was expressly provided: "h.- If during the committee stage of the file a motion for a substitute text is approved, or when the committee agrees on changes that substantially modify the bill, the President 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; consideration of the bill shall be suspended, and the corresponding consultations shall likewise be carried out" (emphasis not in the original). It is argued that from file 19922 it is clear that the approved text differs substantially from those published, and therefore, in accordance with the provision quoted above, the corresponding publication was necessary in order to provide certainty and guarantee the Principle of Publicity and Participation, which were violated by the Legislative Assembly's act of approving a provision with legislative defects of unconstitutionality.
On this matter, the dissenting opinion in judgment N° 2018-005758, issued at 15:40 hours on April 12, 2018, rendered in the Optional Legislative Consultation on Constitutionality, stated: 'No other updated text was published, since neither did the relevant Committee adopt any resolution to request it from the Legislative Directorate, nor did the President of the Committee do so on her own. Furthermore, the procedural motions on the floor of the Legislative Plenary aimed at approving its publication were systematically rejected by the majority of the deputies; for all of the foregoing reasons, said publication did not take place.' Consequently, upon reading the content of the substantive motions approved in the special committee, this Constitutional Tribunal unanimously finds that there was an essential defect in the legislative procedure, evident and manifest in nature, which violated the principles of publicity and equality by omitting publication, given that, taken together, they produced a substantial modification of the original text.
It is indicated that, by failing to observe strictly the special procedure established by way of article 208 bis of the Reglamento de la Asamblea Legislativa in the processing of the bill under consultation — specifically, by omitting publication of the substitute text of the bill approved by the Special Committee in its session of September 23, 2016 — an essential defect was incurred in the legislative procedure for the formation of the law, in violation of the democratic and publicity principles, without the ultimate substitution of that text being capable of validating the procedure. It is stated that in the separate note to that same dissenting opinion, it was said: "In this context, it cannot be ignored that the motion governing the procedure for approval of the bill under consultation states that publication is required whenever there is a substitute text. Therefore, this constituted in this case a violation of what was indicated in the motion governing the procedure (which, moreover, by virtue of the application of article 208 bis, gives said motion the force of regulatory provisions for that specific bill), and any type of mandated publication is an essential requirement" (emphasis not in the original).
It is indicated that, in this way, the reasoning of the Justices who dissented from the majority opinion held that, precisely because this involved an abbreviated legislative procedure, the aforementioned Principle of Publicity must be respected with even greater rigor. It is argued that, since we are dealing with a procedure that involves waivers of the ordinary constitutional process, the figure of validation (convalidación) or cure (saneamiento) cannot be invoked under any circumstances — still less with respect to a requirement as important as publicity — given the omission that occurred in file 1992; for not only was the publication of certain provisions that did not alter the essence of the bill omitted, but the text ultimately enacted into law was entirely omitted from publication, which taints Ley No. 9544 with unconstitutionality, for failure to observe the constitutional principles governing parliamentary procedure and article 208 bis of the Reglamento de la Asamblea Legislativa, as well as constitutional article 121.
It is stated that, in any event, even if one sought to apply the theory of cure and validation, in this scenario such application is impossible, since the defect cannot be remedied — by the mere act of publishing the substitute text after its approval 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 after it has already received a first debate; this has been recognized by the Constitutional Chamber itself when, in its ruling N° 2005-398, issued at 12 hours 10 minutes on January 21, 2005, it reiterated its position upon analyzing the bill known as "Ley de Solidaridad Tributaria," and in its judgment N° 2012-004621 of 16:00 hours of April 10, 2012, it stated:
"This Constitutional Tribunal notes that when the Legislative Assembly, by means of a point of order under Article 208 bis of the Rules of Procedure, creates a special procedure, the application and observance of that procedure 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 remain an exception. The duty of the various legislative bodies to adhere, zealously and scrupulously, to the special procedure previously designed avoids any infringement of the principles of legal certainty. Consequently, when faced with a special and expedited legislative procedure, the time limits, stages, and requirements previously established must be subject to a restrictive and rigorous interpretation.
(…)
Consequently, from a reading of the substantive motions approved in the special committee, this Constitutional Tribunal finds, 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 publication thereof, since, taken together, they produced a substantial modification of the original text (emphasis ours)." More recently, the Tribunal reiterated this criterion in ruling No. 2017-19636 of 9:15 a.m. on December 6, 2017, as follows:
"In that regard, these circumstances and the obligation to publish bills are contained in the principle of publicity, which must serve as a vector of legitimacy for every representative body of popular sovereignty.
(…)
Now, the jurisprudence of this Chamber has been decisive in assigning significant weight to the principle of publicity as a substantive requirement within the legislative process, with respect to both ordinary legislation and constitutional amendment (…)." Note, Your Honors, that the text that was not published and that became Law No. 9544 altered matters such as retirement age, years of service, employee contributions, years of service, the transitional provisions, and others. Hence the imperative need to comply with the publicity requirement, since all of those are matters of clear public interest, given that they involved public resources of the Judicial Branch then under discussion; and yet, without any justification whatsoever, those matters were not duly communicated to the general public and, in particular, to the judiciary population. The petitioner argues that these constitute infringements of the legislative procedure that render Law No. 9544 unconstitutional; that this unconstitutional law has caused the petitioners' fundamental rights to a dignified, proportionate, and reasonable pension — consistent with their life plans and their employment contracts — to be violated; and accordingly requests that the pending unconstitutionality actions be granted, on account of the violations committed by the Legislative Assembly in the procedure for approving the law reforming the Retirement and Pension Regime of the Judicial Branch.
The petitioner further adds that there are also constitutional defects relating to publication, in that a text different from the one consulted was approved, inasmuch as the text ultimately approved was not submitted for consultation with the Judicial Branch as required by Article 167 of the Constitution. The petitioner adds that it is apparent from the legislative file that the bill voted on in first debate contained substantial changes — such as employee contributions, retirement age, years of service, functions removed from the Superior Council, transitional provisions, among others — with respect to the bill reported out by the Committee, which was the last version consulted with the Judicial Branch on July 27, 2017; and that therefore the bill voted on constitutes a substitute text introduced by motion that was not duly submitted for consultation with the Full Court (Corte Plena), in contravention of the provisions of Article 167 of the Constitution.
Accordingly, in the petitioner's view, it is not correct to assert that the Supreme Court of Justice was in fact consulted regarding the bill that ultimately became law, since the last text consulted was the affirmative report of the corresponding Committee, which subsequently underwent the changes already noted. The petitioner states that this necessarily entails an analysis of the constitutional implications contained in the aforementioned Article 167 and of the grave transgression represented by the absence of consultation with the Judicial Branch with respect to the bill now enacted as Law No. 9544. The petitioner adds that there is a violation of Article 167 of the Constitution, which it considers to be another of the most serious defects affecting the approval of Law 9544 — a law that violates the human rights of its members — since that provision was disregarded; it reads:
"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 the Court's opinion, a vote of two-thirds of all members of the Assembly shall be required." (Emphasis not in the original.)
The petitioner considers that the following aspects of utmost relevance to this action are drawn from the transcribed provision: the constitutional precept is clear in stating that consultation is required — that is, consulting the Judicial Branch on all bills related to its organization or functioning is not a discretionary task but a mandatory one for the Legislative Assembly. From this it follows that not only must those bills specifically related to the Judicial Branch's administration of justice be consulted, but also all matters related to its organization, and not exclusively those related to its judicial performance, since the provision draws no such distinction. The petitioner further adds that it is also important to note from this article that in order to depart from the Judicial Branch's opinion — which is binding with respect to this type of bill — the Legislative Assembly will require a two-thirds vote of its members, that is, a qualified majority.
The petitioner indicates that this leads to an examination of the correct understanding of "organization or functioning" of the Judicial Branch in the context of the mandatory consultation established in Article 167 of the Constitution. The petitioner states that the bill contained provisions directly related to the organization of the Judicial Branch — an organizational reform affecting not only the judiciary sector but also the auxiliary justice sector and the entire administrative apparatus that supports the administration of justice in the country — as evidenced by the elimination of functions of the Full Court, the Superior Council, the Executive Directorate, the Audit Office, the Human Resources Management Directorate, and the Financial Accounting Department, all of the Judicial Branch, in order to create a Fund Administrative Board as a body of the Judicial Branch over which the Full Court, as the superior body of the Judicial Branch, has no competence whatsoever.
The petitioner argues that it is not correct to assert that only bills related to the functions and competencies of the Judicial Branch must be consulted, since the constitutional text contains the word "or" as a disjunctive conjunction that separates the two terms "organization" and "functioning" and renders them mutually exclusive and alternative to each other. The petitioner considers that, accordingly, the functioning of the Judicial Branch must not be analyzed as the only aspect protected by Article 167 of the Constitution; rather, the constitutional provision contemplated both scenarios independently, and therefore consultation on the bill is required both when it concerns organizational matters — including internal and administrative questions of the Judicial Branch — and when it concerns functions to be regulated or competencies arising from new legislative reforms. The petitioner notes that this interpretation was adopted by the dissenting Justices in the dissenting vote to ruling No. 2018-005758 of 3:40 p.m. on April 12, 2018, which addressed the issue as follows:
"However, in the opinion of the undersigned, such an interpretation of the constitutional provision — one restricted solely to the jurisdictional function — derives neither from the text of the Constitution itself nor from the jurisprudence of this Chamber. Indeed, with respect to the cited precedents, it is worth noting that the first three rulings do not support what the majority holds in its vote. Thus, Ruling No. 1998-5958 of 2:54 p.m. on August 19, 1998, develops only the term 'functioning' — from the pair 'organization or functioning' — of the Judicial Branch, without addressing the question of the organization of that Branch of government." (Emphasis not in the original.)
In addition to the foregoing, the petitioner notes that the dissent states that the concept of organization of the Judicial Branch has not been developed by the Constitutional Chamber and must not be confused with mere functioning, which has indeed been the subject of analysis by that Constitutional Tribunal. The petitioner argues that, in this context, it is clear that what must be analyzed by the Constitutional Chamber is the matter relating to the organizational dimension of the Judicial Branch that is being affected by the entry into force of Law 9544, and that, given that the law regulates matters pertaining to the organization of the Judicial Branch, the mandatory consultation regulated by Article 167 of the Constitution is required — which, as already noted, draws no distinction between matters of functioning or organization of the Judicial Branch, but rather addresses both scenarios independently; and that, when facing bills that relate to and involve both the functioning and the organization of the Judicial Branch, the prior consultation that is conspicuously absent from this matter is required. The petitioner states that in support of this position it is useful to transcribe an excerpt from the aforementioned dissenting vote:
"Certainly, it is evident that what was expressed was limited to examining matters relating to the exercise of the jurisdictional competencies of the Courts of Justice, since it was that specific aspect that was the subject of the consultation. However, the Chamber did not say that this is the only circumstance in which consultation under Article 167 of the Constitution is mandatory; rather, what it said is that, in that case, consultation is mandatory, without referring to other cases in which it is also mandatory, such as matters relating to the organization and administrative competencies of the Judicial Branch, the particularities of the jurisdictional function vis-à-vis the purely administrative function, even though judges and judicial auxiliaries are also public servants." (Emphasis not in the original.)
In any event, the petitioner argues that this Constitutional Tribunal, in the majority vote of the aforementioned Legislative Optional Consultative ruling, also does not deny that administrative matters form part of the functioning of the Judicial Branch, as is the case here with the Retirement and Pension Fund of the Judicial Branch, which forms part of the internal affairs of each judicial office. In that ruling the Chamber stated:
"From the foregoing discussion, as well as from the text of the provision just quoted, it is possible to define even more precisely the conditions under which a bill may not be referred to one of the full legislative committees. Indeed, the matters that mandatorily require consultation with the Supreme Court of Justice are those that relate to 'the organization or functioning of the Judicial Branch,' where the term 'functioning' refers not only to aspects of the internal administrative regime of the judicial offices, but also to the procedural rules governing the processing of the various matters submitted to those courts, so that it is mistaken to think that this consultation must be carried out only when one is strictly dealing with procedural matters" (emphasis ours).
And in its ruling number 2008-5179 of 11:00 a.m. on April 4, 2018, it stated as follows:
"The majority of this Constitutional Tribunal considers that a bill addresses such matters when its provisions contain explicit rules that establish the creation, substantial modification, or suppression of strictly jurisdictional bodies or administrative bodies attached to the Judicial Branch, or when it creates, substantially modifies, or eliminates materially jurisdictional or administrative functions." It argues that the foregoing quotations 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 — oblige the Legislative Assembly to submit the consultation in the terms set forth in Article 167 of the Political Constitution. This is so because it is a natural derivation not only of Article 167, but also because other constitutional provisions, such as numerals 9, 154, and 177 of the Constitution, protect judicial independence.
It adds that, once the scope of constitutional Article 167 has been clarified, it is evident that the Legislative Assembly failed to carry out the corresponding consultation with the Judicial Branch, and that the aspects in question had not previously been included in the texts submitted to the Supreme Court of Justice for its opinion; consequently, a violation was committed of the duty imposed by the constitutional provision, and as a result, the proceedings conducted prior to the approval of the amended committee report are constitutionally void and must be so declared. This is so because the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Judicial Branch is an intrinsic part of its functional and organizational activity. It notes that the origins and nature of the Retirement and Pension Fund of the Judicial Branch date back to the 1930s, when legislators, concerned about the budgetary, social, and political stability required by the Judicial Branch, considered that one of the necessary elements for achieving such security was that judicial officers be able to count on a future beyond their working years that would allow them to ensure a dignified life commensurate with each judicial officer's contribution to the service of the country, given the highly sensitive nature of their work for Costa Rican institutional life.
For that reason, the Fund responds to criteria of stability, independence, preparation, and suitability; it forms part of the employment contract of each judicial employee and serves as an incentive for qualified personnel to work for the institution, with the aim of promoting the retention of trained and capable staff. Thus, a reduction in retirement benefits represents a disincentive to the entry of valuable professional individuals who, taking into account the economic outcome of a future assessment, would prefer to pursue their professional careers in another field of work. This is the understanding that the Full Court (Corte Plena) reached in its session No. 27 of August 7, 2017, Article XXX, when it addressed the consultation submitted by the Legislative Assembly, stating:
"Moreover, the renewal of personnel who manage to remain is affected. The Judicial Branch would find itself with older employees who continued working solely because of the reduction their income would suffer if they retired. Judicial staff would be faced with a dilemma in which, although they genuinely wish to exercise that right and feel motivated to retire and rest, they find themselves in a position where they must assess their economic situation and are likely compelled to seek new sources of income to cover their ordinary expenses or those acquired prior to retirement, as well as those arising naturally from advancing age. However, that process also has its restrictions: from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired persons from seeking other employment, and socially it is a reality that after the age of forty there are practical limitations on labor reintegration.
This has a significant bearing on structure and functioning, since it reduces the Judicial Branch's competitiveness in the labor market, to the detriment of the quality of the Administration of Justice. The salaries of positions are diminished by the contribution to the retirement and pension scheme, which is four times greater than the contribution to other schemes. This hinders the recruitment of human resources and the quality of the public service suffers as a result.
Furthermore, the regulation of the Retirement and Pension Fund of the Judicial Branch must not be assessed solely from an economic perspective, for we are dealing with fundamental — and non-waivable — rights associated with every worker who, during their working years, contributed a percentage higher than the general rate to a scheme with the expectation of receiving a pension that would allow them to meet their needs and enjoy, together with their families, their retirement years in peace and with quality of life.
The imposition of this new tax burden affects vulnerable population groups — such as older adults — thereby prejudicing the weakest party, the very one that requires the greatest protection from the State.
The proposed tax is imposed at a stage in the life of the retired person when they are most vulnerable, close to or already in their senior years. It cannot be overlooked that it is at this stage that people generally require greater medical attention, special care, and the like; and that during their working lives, each in lesser or greater amounts according to the income received, they contributed to the scheme with the expectation of having the resources foreseen to meet the demands of this process. Should this bill be approved, that life plan would be frustrated.
It would cause a significant social impact, since persons in retirement suddenly lose an important part of their income while retaining a pre-established level of expenditure, which translates into repercussions not only economic but also on their health — contrary to the objective envisioned for a pension system, which is to provide sufficient income during the period of life following the working years. In this scenario, it is important to recall that on many occasions the retired person continues to have other older adults or minors in their care and under their financial support.
In conclusion, a negative opinion must be issued with respect to the bill processed under expediente n° 19922, since it impacts the structure, organization, and functioning of the Judicial Branch." It adds that the Constitutional Chamber itself has viewed the Retirement and Pension 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 plan, and of their families. In that regard, see what was stated in ruling n° 2018-005758, of 3:40 p.m. on April 12, 2018:
"What is clear is that the creation of the pension scheme of the Judicial Branch was key to the stability of the administrative and judicial career of its employees and officers, and came to be a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. Together with that career, it provided stability to judges and other employees and officers both while active and while inactive, which made the judicial career attractive to many jurists and thereby promoted the stability and specialization of many officers across the various branches of the judicial apparatus (…)" [The petitioner] states that, in this way, from its very creation, the Fund was always conceived as part of the life plan of all judicial branch employees (personas servidoras judiciales), since the existence of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) responds to criteria of stability, independence, preparation, and fitness, and is an element that promotes the retention of trained and qualified staff within the institution. [The petitioner] argues that, inasmuch as the Judicial Branch Retirement and Pension Fund is clearly an intrinsic element of the employment contract and of the future expectations held by each judicial branch employee and their families, it constitutes an internal element of the organization of the Judicial Branch, and as such the constitutional referral already examined should have been mandatory. [The petitioner] considers that so drastic a modification, tainted by procedural nullities in the legislative process, can only be remedied by granting this petition, given the violations of the fundamental rights of those represented. [The petitioner] states that this, combined with the unconstitutionality arising from the lack of a qualified majority (mayoría calificada) with which bill No. 19922 was voted upon, renders Ley 9544 violatory of the fundamental rights of judicial branch employees, since it was not approved by two-thirds of the members of the Asamblea Legislativa.
In this regard, [the petitioner] notes that there was an absence of the qualified majority required to depart from the binding opinion (criterio vinculante) of the Judicial Branch and proceed with the approval of the law; the opinion of the Corte Suprema was negative on the three occasions it was consulted regarding the bill to reform the Judicial Branch Retirement and Pension Regime, with the Corte being emphatic in expressing its negative position with respect to such reform, which automatically obligated the Asamblea Legislativa, when enacting Ley 9544, to meet the requirement of a qualified majority — meaning that those votes had to be cast by at least two-thirds of the 57 Deputies (Diputados and Diputadas) of the Asamblea Legislativa; however, as is evident from the legislative record (expediente legislativo), the vote at first reading (primer debate) of the bill did not reach the total of two-thirds of the Deputies. [The petitioner] adds that Article 208 bis of the Reglamento de la Asamblea establishes that the only bills subject to an abbreviated and special procedure that may be voted upon by a simple majority (mayoría simple) are those for which there is no negative mandatory referral opinion; a scenario that does not apply here, since the unconstitutionality and violation of the human rights of those represented occurred because Ley 9544 was subjected to Article 208 bis of the Reglamento de la Asamblea — a provision designed exclusively for matters requiring a simple majority vote — without recognizing that, in this matter, a vote adopted by a qualified majority was required, given that Corte Plena had expressed a negative opinion regarding the bill. [The petitioner] states that the legislative record of expediente 19922 makes it entirely clear that neither of the two votes met the qualified majority established as mandatory by the Constitución Política in situations of this type.
Thus, at the first reading, held at extraordinary session No. 14 on October 30, 2017, the Plenary (Plenario) approved the affirmative committee report (dictamen afirmativo) issued by the Special Committee (Comisión Especial), with 31 votes in favor and 7 against; and at the second reading (segundo debate), held at ordinary session No. 163 on April 19, 2018, it was approved with 34 votes in favor and 9 against, even though what was required was 38 votes in favor in order to satisfy the constitutional requirement. [The petitioner] considers it evident that in the law-making process, the requirement of obtaining a qualified majority in the vote was violated, in accordance with constitutional Article 167, and that therefore this action must be declared well-founded. [The petitioner] adds that another of the violations within the legislative procedure followed in expediente 19922 and the subsequent Ley n° 9544 is the transgression of constitutional Article 9, which embodies the Principle of Separation of Powers (Principio de Independencia de Poderes). [The petitioner] recalls that the Sala has held that it is part of judicial independence that judicial branch employees enjoy dignified economic sufficiency (suficiencia económica digna). In ruling No. 2018-005758 of 15:40 hours on April 12, 2018, already cited, that body stated:
"In that sense, the legislature was correct to endow the administration of justice in Costa Rica with guarantees and incentives, because only in that way could the rule of law that emerged from the Segunda República be realized — a rule of law that, for its success, would depend on a robust regime of legality and no longer — as noted — on the force of arms, the path chosen by most countries in the world, especially those in Latin America. If this, which was already granted almost eighty years ago, is not respected, the Principle of Progressive Realization of Human Rights (Principio de Progresividad de los Derechos Humanos), Article 26 of the Convención Americana de Derechos Humanos, is violated." And in that same ruling (voto n° 2008-5179), the Court continued:
"At this point, it is important to clarify that the functional independence (independencia funcional) of the Judicial Branch, established in Articles 9 and 102 and reinforced in Article 154, both of the Constitución Política, necessarily implies the power of that Branch of government to determine its own organization, with the aim of preventing, in particular, the intrusion of political interests into its function. And it is this organizational independence — both administrative and jurisdictional — that is also protected under constitutional Article 167.
(…)
Precisely, one of those characteristics, without which it would be impossible to correctly carry out the jurisdictional function, is Independence, in its twofold dimension: that of the Judicial Branch considered in and of itself, and that 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 adjudicators who comprise it were not guaranteed. And, in this regard, there can be no true independence if the salaries, pensions, and retirement benefits of judges and judicial auxiliaries were not commensurate with their responsibilities — far more serious than those of any other official performing a purely administrative public function. Hence, the two groups cannot, in any way, be equated — neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights." The petitioner argues that, based on the foregoing, it is evident that the Judicial Branch has been granted independence and separation of powers through the Political Constitution, in articles 9 and 154, and therefore any project that affects its structure and operations must be mandatorily submitted to that institution for consultation.
The petitioner further argues that, in the specific case at hand, the interference with the independence of the Judicial Branch on the part of the Legislative Assembly consists of the creation of the Administrative Board of the Fund, established in articles 239 and 240 of Ley 9544. The petitioner argues that the creation of a structure within the Judicial Branch but entirely independent of it in every respect — one that modifies the powers and functions of both the Full Court (Corte Plena) and the Superior Council (Consejo Superior) — constitutes an interference with the independence and separation of powers established in articles 9 and 154 of the Political Constitution. The petitioner argues that the independence of the Judicial Branch was violated even though the Original Constituent Assembly had expressed its clear intention to guarantee that independence — at the budgetary, political, and functional levels — through provisions such as articles 9, 154, 167, and 177 of the Political Constitution, all of which were disregarded by the Legislative Assembly.
The petitioner argues that, through the unconstitutional and null conduct of the Legislative Assembly in failing to carry out the mandatory consultation established in article 167 of the Political Constitution, the principles of independence and separation of powers enshrined in articles 9 and 154 of the Political Constitution were violated, and therefore the Constitutional Chamber (Sala Constitucional) is asked to grant this petition and declare the unconstitutionality of the provision approved through the absolutely null procedure described above. The petitioner argues that the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) is not only part of the retirement system but also part of the employment contract, and that therefore the employment contract has been modified for those who have been contributing to the Fondo de Jubilaciones y Pensiones del Poder Judicial for twenty years or more.
The petitioner indicates that the represented parties are suffering the automatic application of a transitional provision so severe that nothing like it has ever before been applied to any group with consolidated legal situations (situaciones jurídicas consolidadas) in retirement matters, and considers that such a provision represents a disincentive for valuable professionals to continue working at the institution, since, depending on the economic result of a future actuarial assessment, those professionals might prefer to pursue their careers in another field. The petitioner indicates that the represented parties built life plans based on the working conditions offered to them, and that among those conditions was the expectation of enjoying a dignified retirement through the Fondo de Jubilaciones y Pensiones del Poder Judicial upon reasonable fulfillment of years of service and age requirements — that being the point at which they could retire with a dignified income after having devoted an entire productive life to serving the community and the Judicial Branch — and that it is now neither reasonable nor proportionate that, with only a few years remaining before they meet the requirements established by the legislature, those requirements should be altered without any technical study supporting the appropriateness of the new measures to be applied.
The petitioner adds that the Judicial Branch would find itself with aging staff members who remained in service solely because of the drastic extension of the years of service they would be required to complete, even where those individuals no longer possess the physical and intellectual capacities required for judicial functions. The petitioner argues that the judicial workforce would be placed at a crossroads where, although those employees genuinely wish to exercise that right and feel motivated to retire and rest, they find themselves in a situation in which, due to the application of an unfounded and arbitrary transitional provision unsupported by any technical study, the life plans of those who placed their legitimate trust and good faith in the institution as employer — and who held the expectation of a dignified retirement through the Fondo de Jubilaciones y Pensiones del Poder Judicial, to which they have contributed for many years by contributing a significant portion of their monthly salary — are frustrated, thereby constituting a modification of the employment contract (contrato de trabajo) terms that were agreed upon twenty or more years ago between the petitioners, their represented parties, and the Judicial Branch.
The petitioner indicates that the Fondo de Jubilaciones y Pensiones del Poder Judicial must not be assessed solely from an economic perspective, since what is at stake are fundamental rights — inalienable rights — associated with every working person who, during their working years, contributed at a rate higher than the general rate to a retirement system with the expectation of receiving a pension that would allow them to meet their needs and to enjoy, together with their families, a peaceful and high-quality retirement, so that going from being close to retirement to now having — due to the automatic application of an unconstitutional provision — ten or more years remaining before being eligible is, in every respect, arbitrary, irrational, disproportionate, and violates the principles of equality and fair distribution of public burdens to the detriment of the petitioners and their represented parties.
The petitioner warns that, in the case under review, what is being discussed is not merely a right to retirement; rather, membership in and the eventual enjoyment of a retirement benefit funded by the Fondo de Jubilaciones y Pensiones del Poder Judicial forms part of the employment contract and the working conditions that were established for the represented parties at the time they were hired, conditions that have remained in place throughout 20, 25, and 28 years of service — and it is contrary to constitutional law and human rights for those conditions to receive such a drastic modification as that established by Transitional Provision VI (transitorio VI) of Ley 9544, which would be contrary to the right to work and to retirement established in article 73 of the Political Constitution, rights that are declared inalienable and for which contributions have been made in good faith through a substantial portion of one's salary.
The petitioner indicates that for this reason it is requested that the unconstitutionality of that provision be declared and that those listed in the actions, as well as their represented parties, be permitted to retire under the conditions that existed prior to that reform, given the length of time they have participated in the retirement system in question under specific contractual conditions. The petitioner indicates that, upon reviewing the modifications that have been made to other pension systems in the country, it can be observed that no modification as drastic as the one introduced for Judicial Branch retirements and pensions by the entry into force of Ley 9544 had ever previously been made.
The petitioner argues that, while it is understood that there is no right to the immutability of the legal system, the truth is that reforms to other retirement systems have included transitional provisions that have allowed those reforms to take effect in a reasoned, graduated, and proportionate manner. The petitioner indicates that all legislative reforms to retirement systems in Costa Rica — whether belonging to the first pillar or to other substitute systems existing in the country — have included transitional provisions that allow for gradual implementation, respecting acquired rights (derechos adquiridos), consolidated legal situations, and allowing the reform to affect the population in a manner that does not violate their fundamental rights, arguing that even the Organic Law of the Judicial Branch itself, in 1994, provided for a graduated transitional period that was respectful of human rights.
The petitioner argues that only Ley 9544, in an arbitrary manner and without technical basis, establishes a minimum period of 18 months during which retirement under the conditions predating the entry into force of that law would be available — a period during which practically only those who were close to meeting the retirement requirements would be eligible — which renders the provision disproportionate, irrational, and extremely burdensome to the legal sphere of the petitioners and, specifically, of their represented parties. The petitioner adds that article 33 is violated with respect to the transitional modifications of the challenged law in relation to other retirement systems in the country, because persons with more than 20 years of service are placed in an unequal situation, since in other systems persons in equivalent circumstances have been afforded a graduated transitional arrangement that was not granted to judicial employees.
The petitioner warns that judicial employees have gone from having an expectation of imminent retirement to being required to work for more than a decade before receiving a retirement benefit that does not even reach 50% of their salary, despite having contributed a substantial sum of their monthly salary for more than 20 years.
The petitioner considers it to be completely discriminatory and violative of fundamental rights to directly harm a population that is so vulnerable and has so few employment options in the country, since account must be taken of the fact that, given their age and years of service, these individuals no longer find it easy to seek other employment alternatives. The petitioner indicates that workers have a right to a dignified retirement but that the new parameters are causing irreparable harm to judicial workers and constitute a breach of constitutionality, because fundamental rights to equality, proportionality, and reasonableness are being violated. The petitioner states that the legislative file does not demonstrate that any risk to the finances of the Fund existed that would justify preventing the group of persons within ten or fewer years of retirement eligibility from acquiring the right to retire, and therefore Transitional Provision VI becomes arbitrary and violatory of the rights of the represented parties.
The petitioner indicates that Constitutional Courts of other countries have recognized the right to differentiated treatment for persons who are close to meeting retirement eligibility requirements when legislative modifications have been enacted. The petitioner states that, having already accumulated more than 20 years of judicial service, it is difficult to make the decision to resign given the egregious extension of those time periods and given the large amount of money that these individuals have invested in the Fund, since that investment was incorporated into their working conditions as an expectation of enjoying a determined future — one that is now being altered without any technical or legal basis. The petitioner indicates that it is therefore necessary to differentiate, through a transitional provision, among the varying circumstances of active employees, and asks the Chamber to apply comparative law and adopt the position taken by other courts, in keeping with the principle of progressivity of human rights.
The petitioner points out that another instance of differential treatment is found in Transitional Provision II, in relation to those who work at the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), who were granted an unrestricted right to have their retirement conditions recognized even under already-repealed rules, regardless of how long it would take them to meet those requirements. The petitioner indicates that this Transitional Provision reveals the unequal treatment being accorded, within the same law, to the represented parties as compared to employees of the Tribunal Supremo de Elecciones, whose legal situations are being respected and who are even permitted to transfer to another retirement system that is far less confiscatory than that of the Fondo del Poder Judicial. The petitioner states that, given that Transitional Provision VI is contrary to the Principle of Equality enshrined in article 33 of the Political Constitution, the Chamber is asked to declare the unconstitutionality of that transitional provision and to restore the petitioners and their represented parties to a situation of legal equality with respect to the other retirement groups in the country.
It further argues that with respect to Transitorio VI, there is no legal basis whatsoever to support the 18-month period granted for the application of the new Reform; a period that is irrational and arbitrary, given that there is no legal basis or technical criterion to support it. It states that this constitutes a radical change to the employment conditions under which its constituents entered into service with the Poder Judicial. It recalls that Costa Rica, as a rule-of-law state (Estado de Derecho), relies on legal certainty (seguridad jurídica) as the means of meeting social, economic, and individual needs; it is the trust granted by all citizens so that rules will be applied, will be valid, and will conform to law—and not as in the Reform to the Pension Fund, which, in addition to being unconstitutional, fails to respect the basic principles of the rule of law, which is why the challenge to Ley 9544 is brought.
It argues that Transitorio VI violates the Principle of Social Security (Principio de Seguridad Social) and infringes upon the rights of its constituents, since an almost nonexistent period was granted for the preservation of vested legal situations (situaciones jurídicas consolidadas). It recalls that the Constitutional Chamber (Sala Constitucional) has stated on repeated occasions that the retirement right (derecho jubilatorio) may be modified, but only under proportionate conditions, and not as in this case, where an arbitrary transitional period was set with no legal or technical basis whatsoever. It acknowledges that the Sala has held that the right to retirement is not absolute, as it may be subject to certain limitations, but also indicated in its ruling No. 5758-2018 that such modifications were permitted only insofar as they are established by formal law, are reasonable, and do not affect their essential content—which, in its view, is plainly not respected in the present case, since Ley 9544 fundamentally alters all the retirement conditions to which some of the petitioners and their constituents were entitled, given that they had held an expectation for many years and now the conditions regarding years of service, salary, mandatory contribution rates, and retirement income have all changed substantially, and above all, the remaining service time required has changed despite the fact that the majority have more than 25 years of service with the institution.
It recalls that these retirement modifications are being introduced through a law that is tainted by unconstitutionality and has procedural defects in its legislative process, and therefore cannot be regarded as a valid legal instrument for incorporating such retirement modifications. It respectfully submits to the Sala that the assertion that the transitional provision in question is not unconstitutional because it was set according to parameters and requirements based on the opinions of experts received by the Special Committee that issued a report on legislative file number 19922 is incorrect; in reality, there is no technical basis within that file establishing that 18 months is the reasonable and necessary period for modifying retirement conditions, so that Transitorio VI, lacking any technical basis, becomes an unconstitutional provision for failing to comply with objective parameters for granting and restricting the retirement conditions of the petitioners and their constituents.
It states that there exists an absence of a technically grounded transitional provision that introduces the new retirement conditions approved by Ley 9544 in an abrupt, non-progressive manner, to the detriment of acquired rights (derechos adquiridos) and vested legal situations. It notes that there is an absence of technical studies justifying an 18-month period as a transitional provision, and that the International Labour Organization has indicated the need for adequate technical criteria in order to make modifications to a pension scheme. It states that Transitorio VI violates the human rights of those who already had a very near prospect of retirement, and therefore requests that it be declared as such and that its principals and the petitioners be granted the right to a dignified retirement. It states that Transitorio VI also violates the principles of reasonableness and proportionality and must be adjusted in order to protect the fundamental rights of this judicial workforce, since the harm imposed upon them is extreme—going from a matter of months to more than ten years in the majority of cases before acquiring a retirement right that, moreover, is now paltry, despite having contributed for so many years to the Retirement and Pension Fund of the Poder Judicial (Fondo de Jubilaciones y Pensiones del Poder Judicial).
It requests that the retirement, labor, non-confiscation, and equality rights of its constituents be safeguarded, that their fundamental rights be restored, and that the unconstitutionality of said provision be declared, given its lack of the technical basis required for this type of legislative restriction. It notes that Article 26 of the American Convention on Human Rights provides that the States Parties undertake to adopt measures, both domestically and through international cooperation, especially economic and technical, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent allowed by their available resources. It argues that this provision has a counterpart in the Protocol to the American Convention on Economic, Social and Cultural Rights of San Salvador, whose 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 domestically and through international cooperation between States, especially economic and technical, to the maximum extent of their available resources, and taking into account their level of development, in order to achieve progressively, and in accordance with domestic legislation, the full observance of the rights recognized in that Protocol.
It also notes that the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Decreto Ejecutivo N° 38513-RE, states in its Article 2 that each State Party undertakes to take steps, both individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively by all appropriate means, including in particular the adoption of legislative measures, the full realization of the rights recognized therein, and likewise commits to guaranteeing the exercise of the rights set out therein without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. It recalls that among social rights is the right to work—protected by the Constitución Política in Article 56—and with it the right to retirement, which refers to a fundamental right belonging to the worker by the mere fact of being a person and of having contributed to the legally applicable scheme for a period of time.
It states that the right to retirement—as a survival-protection mechanism—constitutes a social security right that has been affirmed not only by various international instruments but also by domestic legal norms, and that implies that once certain conditions have been met, those conditions cannot be altered to the detriment of the human rights of those who hold the entitlement or the vested legal situation. It states that the Costa Rican State has the obligation to respect the rights and vested legal situations of judicial personnel, especially its constituents, and to promote the progressive development of human rights—something that is not reflected in Ley 9544, which is entirely contrary to those constitutional principles. It considers that Transitorio VI is not a human-rights-progressive provision, since it failed to respect the enormous number of years its constituents have been members of and contributed to the scheme, whose benefits should have been protected by a reasonable, fair transitional provision grounded in technical and objective criteria.
It recalls that the Sala is called upon to safeguard and protect fundamental rights, since without judicial protection or procedural guarantees there are no fundamental rights, and therefore requests that it proceed accordingly with respect to its constituents, declaring the consolidated actions well-founded and declaring the unconstitutionality of Ley 9544, especially Transitorio VI. It adds that the Sala has in other matters ordered the Costa Rican State to apply and observe the principle of progressivity (principio de progresividad) of human rights, and therefore requests that this same principle be applied to those who come before that Tribunal seeking to have their fundamental rights to work, retirement, a dignified life, and non-confiscation restored, and that Transitorio VI not be applied on account of being unconstitutional. It reiterates the request that the consolidated actions be declared well-founded, that the procedure for the passage of Ley 9544 be declared to contain nullifying defects rendering the legislation unconstitutional, and likewise that the unconstitutionality of Transitorio VI be declared on the grounds that it is repressive and lacks the technical basis required to justify it.
entity 3-0287-0420, EUNICE OBANDO SOLANO, holder of national identity card 7-0079-0152, EVA MARÍA ALVARADO RODRÍGUEZ, holder of national identity card 1-0377-0039, EVERALDO ALFARO FERLINI, holder of national identity card 1-0771-0854, EZEQUIEL ÁLVAREZ CABEZAS, holder of national identity card 1-1046-0548, FABIÁN GORDIANO MONTERO MONTERO, holder of national identity card 1-0669-0864, FABRICIO MIGUEL ABARCA FALLAS, holder of national identity card 1-0822-0756, FIORELLA PÉREZ FONSECA, holder of national identity card 5-0300-0115, FLOR BRENES HERNÁNDEZ, holder of national identity card 1-0886-0825, FLOR MARÍA MURILLO VINDAS, holder of national identity card 2-0458-0802, FLORA MARÍA CORDERO ROJAS, holder of national identity card 6-0225-0890, FLORIBEL CAMPOS SOLANO, holder of national identity card 3-0325-0187, FLORIBETH SÁNCHEZ GONZÁLEZ, holder of national identity card 2-0497-0271, FLORIBETH PALACIOS ALVARADO, holder of national identity card 6-0221-0749, FLOR Y ROCÍO CAMPOS SANDOVAL, holder of national identity card 2-0414-0476, FRANCINI DELGADO LEÓN, holder of national identity card 4-0168-0486, FRANCISCO JOSÉ BONILLA GUZMÁN, holder of national identity card 1-0640-0491, FRANCISCO MURILLO ZÚÑIGA, holder of national identity card 1-0602-0162, FRANÇOISE RODRÍGUEZ CORONADO, holder of national identity card 1-0944-0235, FRANK GARCÍA MORAGA, holder of national identity card 5-0298-0414, FRANZ ALEXANDER SÁNCHEZ RAMÍREZ, holder of national identity card 1-0900-0131, FRANZ EDUARDO VEGA ZÚÑIGA, holder of national identity card 3-0292-0396, FRESSIA REVELES GÓMEZ, holder of national identity card 1-0922-0486, GABRIEL BARRANTES PALAFOX, holder of national identity card 1-0669-0209, GABRIELA BEATRIZ JIMÉNEZ RIVATA, holder of national identity card 1-0725-0918, GAUDY AGUILAR ALFARO, holder of national identity card 1-0935-0817, GERARDO ALVARADO CHAVES, holder of national identity card 2-0378-0401, GERARDO CERVANTES FONSECA, holder of national identity card 3-0278-0929, GERARDO SÁNCHEZ RIVERA, holder of national identity card 1-0741-0686, GERMAN ESQUIVEL CAMPOS, holder of national identity card 1-0965-0647, GIAN JAVIER MUIR YOWNG, holder of national identity card 3-0300-0955, GILBERTO MORA MOLINA, holder of national identity card 2-0534-0866, GINA RAMÓN FERNÁNDEZ, holder of national identity card 1-0791-0967, GINETHE RETANA UREÑA, holder of national identity card 1-0765-0153, GINNETH DURÁN CORRALES, holder of national identity card 1-0689-0187, GINNETTE AMADOR GODOY, holder of national identity card 8-0051-0937, GIOVANNY GONZÁLEZ HERNÁNDEZ, holder of national identity card 1-0956-0895, GISELLE GUTIÉRREZ SOTO, holder of national identity card 2-0408-0809, GISELLE ROJAS ROJAS, holder of national identity card 2-0507-0474, GLADYS NÜÑEZ RIVAS, holder of national identity card 5-0185-0742, GLORIA ESTELA ÁNGULO SMITH, holder of national identity card 1-0728-0619, GREIVIN HERNÁNDEZ CÓRDOBA, holder of national identity card 2-0445-0438, GUADALUPE VEGA SEQUEIRA, holder of national identity card 5-0251-0420, GUILLERMO GUTIÉRREZ MATAMOROS, holder of national identity card 1-0760-0343, GUILLERMO ROSALES MORA, holder of national identity card 1-0731-0037, GUILLERMO VALVERDE MONGE, holder of national identity card 1-0686-0076, GUSTAVO ADOLFO TENORIO VEGA, holder of national identity card 6-0222-0170, GUSTAVO RODRÍGUEZ TENCIO, holder of national identity card 1-0703-0082, HANNIA LUCÍA TREJOS RAMÍREZ, holder of national identity card 7-0075-0104, HANNIA VANESSA RAMÍREZ PICADO, holder of national identity card 1-1005-0833, HARINTON ERNESTO MONTIEL CARRILLO, holder of national identity card 1-0867-0330, HARRY ANTONIO JIMÉNEZ OLIVARES, holder of national identity card 5-0242-0405, HAZEL ALFARO GONZÁLEZ, holder of national identity card 1-1078-0081, HAZEL VANESSA QUIRÓS RAMÍREZ, holder of national identity card 1-0869-0832, HÉCTOR SANTAMARÍA VÍQUEZ, holder of national identity card 1-0908-0937, HEIDY ARAYA PINEDA, holder of national identity card 2-0383-0427, HEIDY PRISCILLA ROJAS MORALES, holder of national identity card 1-0819-0354, HELLEN VANESSA ARIAS FATJÓ, holder of national identity card 1-0788-0682, HENRY CAMACHO ESQUIVEL, holder of national identity card 4-0156-0291, HENRY MOODIE FEDRICK, holder of national identity card 7-0112-0315, HENRY TIJERINO ESPINOZA, holder of national identity card 5-0250-0209, HERNÁN VÁSQUEZ CASTAÑEDA, holder of national identity card 6-0265-0288, HUBER ANTONIO SOLÍS ARAYA, holder of national identity card 1-0826-0702, IGNACIO GERARDO LÉPIZ SALAZAR, holder of national identity card 4-0164-0654, ILEANA MARÍA LEAL ZÚÑIGA, holder of national identity card 6-0196-0131, ILSE MARÍA GONZÁLEZ DOSMAN, holder of national identity card 6-0240-0588, INDIRA ALFARO CASTILLO, holder of national identity card 2-0462-0902, INEL GIBBONS GÓMEZ, holder of national identity card 7-0109-0072, INGRID ÁNGULO SÁNCHEZ, holder of national identity card 5-0285-0560, INGRID ARAYA LEANDRO, holder of national identity card 1-0949-0945, INGRID SANDÚ KARLSON, holder of national identity card 1-0593-0629, INOCENCIO GÓMEZ OBANDO, holder of national identity card 5-0186-0272, IRENE BLANCO MORALES, holder of national identity card 1-0880-0164, ISIDRO ANTONIO ROMERO QUESADA, holder of national identity card 1-0635-0364, IVÁN GRANADOS BARQUERO, holder of national identity card 3-0325-0944, IVÁN PÉREZ PÉREZ, holder of national identity card 7-0087-0308, IVANNIA AGUILAR ARRIETA, holder of national identity card 1-0823-0346, IVANNIA MEDINA RAMÍREZ, holder of national identity card 1-0911-0387, IVANNIA PATRICIA MORALES LÓPEZ, holder of national identity card 1-0879-0108, IVANNIA VALERIO VILLALOBOS, holder of national identity card 1-0957-0414, IVANNIA JIMÉNEZ CASTRO, holder of national identity card 1-0841-0091, IVETH LORENA DUARTE CERDAS, holder of national identity card 1-0877-0005, IVETH TORRES GONZÁLEZ, holder of national identity card 5-0235-0765, IVONNE VALVERDE SANABRIA, holder of national identity card 1-0811-0724, JAIME ADOLFO CHÉVEZ CAMPOS, holder of national identity card 1-0682-0152, JAIRO JOSÉ ÁLVAREZ LÓPEZ, holder of national identity card 5-0308-0930, JAVIER ALFARO VALERIO, holder of national identity card 1-0660-0072, JAVIER FRANCISCO DELGADO CARAZO, holder of national identity card 5-0257-0789, JAVIER QUESADA QUESADA, holder of national identity card 1-0739-0219, JAVIER VINDAS ROCHA, holder of national identity card 1-0749-0307, JEANNETTE BARBOZA CASCANTE, holder of national identity card 1-0614-0560, JEFFREY FLORES RODRÍGUEZ, holder of national identity card 1-0910-0476, JENNIFER STEPHENSON STERLING, holder of national identity card 7-0096-0630, JENNY ARCE CÓRDOBA, holder of national identity card 3-0325-0015, JENNY MARÍA LEITÓN ALVARADO, holder of national identity card 3-0313-0291, JENNY NÚÑEZ SALAZAR, holder of national identity card 6-0280-0719, JEREMY EDUARTE ALEMÁN, holder of national identity card 1-0860-0567, JEREMY FALLAS RODRÍGUEZ, holder of national identity card 1-0842-0505, JESSENIA CHAVARRÍA GONZÁLEZ, holder of national identity card 1-0836-0886, JESSICA DE LOS ÁNGELES RODRÍGUEZ SOTO, holder of national identity card 1-0881-0675, JHONNY ALFARO NAVARRETE, holder of national identity card 1-0931-0818, JOAQUIN MORALES GONZÁLEZ, holder of national identity card 1-0787-0155, JOHANNA CHAVES LEÓN, holder of national identity card 1-0897-0130, JOHN PALADINO JIMÉNEZ, holder of national identity card 1-0941-0472, JOHNNY ÁLVAREZ SANDÍ, holder of national identity card 7-0078-0010, JONATHAN GAMBOA VALLADARES, holder of national identity card 2-0495-0512, JONATHAN GOÑI CHAVES, holder of national identity card 1-0850-0622, JONATHAN SÁNCHEZ HERNÁNDEZ, holder of national identity card 1-0973-0613, JORGE AGUILAR PÉREZ, holder of national identity card 1-0620-0185, JORGE ANTONIO CASCANTE MORALES, holder of national identity card 1-0753-0847, JORGE ANTONIO CHACÓN COREA, holder of national identity card 1-0762-0236, JORGE CONTRERAS LACAYO, holder of national identity card 5-0294-0990, JORGE EDUARDO ABARCA BONILLA, holder of national identity card 1-0692-0716, JORGE EDUARDO MORA CALDERÓN, holder of national identity card 1-0859-0674, JORGE ENRIQUE CORDERO ZAMORA, holder of national identity card 3-0260-0685, JORGE GERARDO CHINY CAVARRÍA, holder of national identity card 1-0612-0417, JORGE MARIO ROJAS MEJIAS, holder of national identity card 2-0500-0326, JORGE ROBLES ZÚÑIGA, holder of national identity card 3-0292-0546, JORGE WILLIAM CALVO MADRIGAL, holder of national identity card number 1-0778-0897, JOSÉ EFRAÍN SANDERS QUESADA, holder of national identity card 1-0740-0038, JOSÉ ALBERTO RIVERA OLIVARES, holder of national identity card 1-0793-0076, JOSÉ ALEXANDER MORA GARCÍA, holder of national identity card 1-0706-0010, JOSÉ ALONSO RODRÍGUEZ VARGAS, holder of national identity card 2-0436-0868, JOSÉ ARTURO ÁLVAREZ CHACÓN, holder of national identity card 1-0557-0947, JOSÉ AURELIO FERNÁNDEZ SOLANO, holder of national identity card 1-0766-0477, JOSÉ EDUARDO FLORES GARCÍA, holder of national identity card 1-1023-0362, JOSÉ EDUARDO SALAZAR BARRIENTOS, holder of national identity card 1-0670-0201, JOSÉ GILBERTO ROJAS CHACÓN, holder of national identity card 1-0684-0910, JOSÉ LUIS BADILLA CUADRA, holder of national identity card 2-0449-0004, JOSÉ LUIS BENAVIDES UMAÑA, holder of national identity card 1-0714-0628, JOSÉ LUIS PERAZA ÁLVAREZ, holder of national identity card 5-0273-0501, JOSÉ LUIS UREÑA ROJAS, holder of national identity card 1-0873-0458, JOSÉ MAURICIO FONSECA UMAÑA, holder of national identity card 1-0921-028, JOSÉ RAFAEL ROJAS LÓPEZ, holder of national identity card 1-0772-0917, JOSÉ RAMÓN HIDALGO HIDALGO, holder of national identity card 1-0640-0033, JOSÉ RODOLFO DÍAZ RAMÍREZ, holder of national identity card 3-320-980, JOSÉ RUBÉN DIMAS PORTILLO, holder of national identity card 7-0070-0864, JUAN CARLOS ARIAS AGUILAR, holder of national identity card 1-0408-0344, JUAN CARLOS CAMPOS MARÍN, holder of national identity card 1-0838-0041, JUAN CARLOS LEAL VEGA, holder of national identity card 1-0619-0092, JUAN CARLOS MORELIA SIRIAS, holder of national identity card 2-0448-0967, JUAN CARLOS QUESADA QUESADA, holder of national identity card 1-0796-0215, JUAN CARLOS SALAS VARELA, holder of national identity card 3-0337-0979, JUAN ENRIQUE CAMPOS SOLÓRZANO, holder of national identity card 1-0922-0112, JUAN JOSÉ ACUÑA PASTRANA, holder of national identity card 5-0227-0578, JUAN JOSÉ CARVAJAL MORA, holder of national identity card 1-0772-0385, JUAN LUIS JIMÉNEZ CHAVES, holder of national identity card 2-0486-0526, JUAN LUIS SÁNCHEZ ALVARADO, holder of national identity card 7-0096-0008, JUAN LUIS UREÑA ÁLVAREZ, holder of national identity card 3-0330-0571, JULIO CÉSAR MONTANO RAMOS, holder of national identity card 5-0215-0175, KAREN JACKELYN THOMAS SMITH, holder of national identity card 7-0096-0607, KARIN AGUILAR MOLINARI, holder of national identity card 9-0106-0967, KARLA PATRICIA FONSECA CALDERÓN, holder of national identity card 1-0910-0203, KARLA SANCHO VARGAS, holder of national identity card 1-0779-0289, KAROLINA RIVERA ESPINOZA, holder of national identity card 2-0514-0769, KATTIA CAMPOS ZÚÑIGA, holder of national identity card 1-0707-0725, KATTIA CORDERO SOLANO, holder of national identity card 1-0934-0341, KATTIA LILLIANA FALLAS SOLÍS, holder of national identity card 1-0984-0078, KATTIA MARÍA VARGAS PÉREZ, holder of national identity card 1-0886-0825, KATTIA MAYELA ESCALANTE BARBOZA, holder of national identity card 1-0646-0777, KATTIA MORALES NAVARRO, holder of national identity card 1-0801-01 41, 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 VILLEGAS NÚÑEZ, holder of identity card number 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, holder of identity card number 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, holder of identity card number 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, holder of identity card number 3-0274-0283, MARÍA MARGOTH CASTRO SALAZAR, holder of identity card number 2-0454-0319, MARÍA MARITZA PIZARRO COREA, holder of identity card number 5-02825-0080, MARÍA TERESA BENAVIDES ARGUELLO, holder of identity card number 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, holder of identity card number 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, holder of identity card number 1-0820-0799, MARIANO RODRÍGUEZ FLORES, holder of identity card number 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, holder of identity card number 7-0120-0576, MARIO ANGULO SALAZAR, holder of identity card number 1-1014-0171, MARIO MIRANDA DE LA O, holder of identity card number 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, holder of identity card number 5-0241-0198, MARITZA VALVERDE CORDERO, holder of identity card number 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, holder of identity card number 1-0604-0812, MARJORIE SANABRIA ROJAS, holder of identity card number 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, holder of identity card number 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, holder of identity card number 1-0607-0484, MARLENY RAMÍREZ GAMBOA, holder of identity card number 4-0150-0093, MARLON ARIAS QUIRÓS, holder of identity card number 1-0120-0929, MARLYN CASTRO ALVARADO, holder of identity card number 9-0076-0447, MARLYN ELENA QUESADA QUESADA, holder of identity card number 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, holder of identity card number 1-0692-0673, MARTÍN HERNÁNDEZ SERRANO, holder of identity card number 1-0726-0721, MARVIN ÁNGULO DÍAZ, holder of identity card number 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, holder of identity card number 3-0258-0595, MAUREEN BOLAÑOS ROJAS, holder of identity card number 1-0784-0631, MAUREEN SILES MATA, holder of identity card number 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, holder of identity card number 1-1003-0126, MAUREEN IONG UREÑA, holder of identity card number 1-0815-0990, MAUREN VENEGAS MÉNDEZ, holder of identity card number 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, holder of identity card number 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, holder of identity card number 1-0783-0049, MAURICIO RETANA GONZÁLEZ, holder of identity card number 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, holder of identity card number 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, holder of identity card number 7-0087-0424, MAYRA GISELLA GONZÁLEZ SÁNCHEZ, holder of identity card number 1-0567-0766, MELANIA GÓMEZ ACUÑA, holder of identity card number 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, holder of identity card number 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, holder of identity card number 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, holder of identity card number 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, holder of identity card number 7-0072-0678, MIGUEL OVARES CHAVARRÍA, holder of identity card number 1-1006-0605, MINOR ANCHÍA VARGAS, holder of identity card number 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, holder of identity card number 6-0217-0066, MINOR MONGE CAMACHO, holder of identity card number 1-0676-0442, MINOR RIVAS TORRENTES, holder of identity card number 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, holder of identity card number 3-0316-0212, MIXCY CHAVES MENDOZA, holder of identity card number 5-0309-0547, MOISÉS ALVARADO CHACÓN, holder of identity card number 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, holder of identity card number 5-0247-0582, NATACHA PIZARRO SOTO, holder of identity card number 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, holder of identity card number 2-0443-0931, NELSON PÉREZ GUADAMUZ, holder of identity card number 1-0901-0416, NIDIA CASTRO CONEJO, holder of identity card number 1-0776-0726, NILLS ROJAS JARA, holder of identity card number 7-0102-0481, NUBIA AGUILAR CAMACHO, holder of identity card number 1-0582-0179, NURIA QUESADA ZAMORA, holder of identity card number 1-0619-0414, OLDEMAR CERDAS JUÁREZ, holder of identity card number 5-0252-0491, OLGA MURILLO ESPINOZA, holder of identity card number 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, holder of identity card number 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, holder of identity card number 2-0459-0740, OMAR BRENES CAMPOS, holder of identity card number 1-0889-0754, ORLANDO CASTRILLO VARGAS, holder of identity card number 1-0730-0335, OSBALDO ROSALES CHACÓN, holder of identity card number 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, holder of identity card number 4-0154-0227, OSVALDO LÓPEZ MORA, holder of identity card number 1-0926-0995, OSVALDO RODRÍGUEZ FLORES, holder of identity card number 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, holder of identity card number 3-0301-0666, PABLO MACEO SOTO, holder of identity card number 7-0112-0501, PABLO ROLDÁN UMAÑA, holder of identity card number 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, holder of identity card number 4-0161-0248, PATRICIA FALLAS MELÉNDEZ, holder of identity card number 1-0660-0570, PATRICIA RIVERA SANDOVAL, holder of identity card number 1-0782-0780, PATRICIA WO CHINO MOK, holder of identity card number 7-0094-0757, PAULO HUMBERTO MENA QUESADA, holder of identity card number 3-0331-0109, PEDRO ARCE GONZÁLEZ, holder of identity card number 2-0385-0931, PEDRO BONILLA PICADO, holder of identity card number 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, holder of identity card number 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, holder of identity card number 2-0490-0234, RAFAEL DAVID VEGA SEGURA, holder of national identity card 1-0791-0159, RAFAEL NAVARRETE BRENES, holder of national identity card 7-0104-0669, RAFAEL UREÑA BARRIOS, holder of national identity card 1-0915-0224, RAMÓN ANGULO ROLDÁN, holder of national identity card 1-0554-0410, RANDALL RODRÍGUEZ ULATE, holder of national identity card 1-0783-0793, RANDY MARTÍN TREJOS MORALES, holder of national identity card 1-0758-0892, RAQUEL RAMÍREZ BONILLA, holder of national identity card 1-0997-0349, RASHID BEIRUTE GRANADOS, holder of national identity card 5-0243-0570, RAYVAN MC LEOD BÍGSBY, holder of national identity card 7-0132-0768, REBECA GUARDIA MORALES, holder of national identity card 1-0808-0973, REBECCA ARTAVIA BRUNO, holder of national identity card 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, holder of national identity card 1-0548-0407, RICARDO CALDERÓN VALVERDE, holder of national identity card 9-0098-0557, RICARDO GARCÍA MOLINA, holder of national identity card 4-0170-0018, RITA CASTRO ABARCA, holder of national identity card 2-0456-0750, RITA MARÍA QUIRÓS OBANDO, holder of national identity card 1-0758-0598, ROBERTO CARLOS PÉREZ VARGAS, holder of national identity card 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, holder of national identity card 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, holder of national identity card 1-0813-0303, ROCÍO PICADO VARGAS, holder of national identity card 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, holder of national identity card 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, holder of national identity card 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, holder of national identity card 1-0706-0332, RODRIGO CASTRO SOLÍS, holder of national identity card 7-0101-0028, RODRIGO CHAVES CALVO, holder of national identity card 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, holder of national identity card 1-0903-0505, ROELIS REYES PICHARDO, holder of national identity card 5-0273-0355, ROGER JIMÉNEZ FAJARDO, holder of national identity card 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, holder of national identity card 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, holder of national identity card 1-0538-0903, RONALD SOLÍS JIMÉNEZ, holder of national identity card 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, holder of national identity card 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, holder of national identity card 4-0125-0931, ROSE MARY LAWRENCE MORA, holder of national identity card 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, holder of national identity card 1-0852-0854, ROSIBEL BRENES ALVARADO, holder of national identity card 4-0162-0518, ROSIBEL BRENES REYES, holder of national identity card 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, holder of national identity card 1-0698-0291, ROXANA GÓMEZ BARQUERO, holder of national identity card 9-0075-0148, ROXANA HIDALGO VEGA, holder of national identity card 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, holder of national identity card 1-0652-0137, ROXANA MESÉN FONSECA, holder of national identity card 1-0850-0833, ROY FERNANDO VARGAS NARANJO, holder of national identity card 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, holder of national identity card 1-0971-0856, SABAS GARCÍA LEAL, holder of national identity card 5-0220-0011, SANDRA PÉREZ OBANDO, holder of national identity card 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, holder of national identity card 5-0219-0232, SAUL RETANA LÓPEZ, holder of national identity card 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, holder of national identity card 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, holder of national identity card 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, holder of national identity card 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, holder of national identity card 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, holder of national identity card 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, holder of national identity card 2-0497-0859, SHIRLEY VÁSQUEZ CASTAÑEDA, holder of national identity card 6-0234-0401, SILVIA CASCANTE RUEDA, holder of national identity card 6-0241-0939, SILVIA CHINCHILLA PORRAS, holder of national identity card 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, holder of national identity card 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, holder of national identity card 1-0791-0964, SILVIA ESPINOZA ACEVEDO, holder of national identity card 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, holder of national identity card 1-0977-0164, SILVIA PALMA ELIZONDO, holder of national identity card 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, holder of national identity card 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, holder of national identity card 1-0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, holder of national identity card 7-0091-0008, SONIA ISABEL GAMBOA ROJAS, holder of national identity card 2-0346-0839, SONIA RAMÍREZ THORPE, holder of national identity card 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, holder of national identity card 5-0222-0182, STEVEN PICADO GAMBOA, holder of national identity card 1-0982-0768, SUGEY FONSECA PORRAS, holder of national identity card 1-1073-0434, SUGEY QUESADA VALERIN, holder of national identity card 7-0116-0302, SUSANA ALFARO SOTO, holder of national identity card 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, holder of national identity card 1-0825-0973, TERESITA BOLAÑOS ROJAS, holder of national identity card 1-0685-0508, TONY ACUÑA PANÍAGUA, holder of national identity card 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, holder of national identity card 5-0222-0486, VANESSA VILLALOBOS MONTERO, holder of national identity card 2-0484-0081, VANLLY CANTILLO GAMBOA, holder of national identity card 1-0874-0062, VERA VARGAS BARRANTES, holder of national identity card 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, holder of national identity card 1-0730-0506, VÍCTOR FERNÁNDEZ VARGAS, holder of national identity card 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, holder of national identity card 1-0703-0316, VICTORIA OVIEDO SOTO, holder of national identity card 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, holder of national identity card 1-0642-0719, WAIMAN HIN HERRERA, holder of national identity card 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, holder of national identity card 7-0082-0466, WALTER GONZÁLEZ FALLAS, holder of national identity card 1-0818-0248, WALTER GUEVARA LARA, holder of national identity card 6-0180-0728, WILBERT KIDD ALVARADO, holder of national identity card 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, holder of national identity card 1-0923-0060, WILLIAM CALDERÓN NAVARRO, holder of national identity card 6-0212-0756, WILLIAM MATTHEWS SALAS, holder of national identity card 7-0084-0745, WILLIAM MORA DURÁN, holder of national identity card 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, holder of national identity card 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, holder of national identity card 5-0237-0488, XARY BRICEÑO ALVAREZ, holder of national identity card 7-0085-0762, XINIA BARRIENTOS ARROYO, holder of national identity card 1-0976-0204, XINIA MARÍA ZAMORA OVARES, holder of national identity card 3-0294-0379, XINIA VEGA GUZMÁN, holder of national identity card 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, holder of national identity card 1-0870-0973, YARMILA ULATE YOUNG, holder of national identity card 1-0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, holder of national identity card 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, holder of national identity card 1-0664-0089, YENSY CAMPOS BARBOZA, holder of national identity card 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, holder of national identity card 1-1404-0477, YESENIA PANIAGUA GÓMEZ, holder of national identity card 1-0845-0494, YESENIA ZAMORA BADILLA, holder of national identity card 1-0991-0793, YORLENDA SPENCE THOMAS, holder of national identity card 7-0103-0835, YORLENY CHING CUBERO, holder of national identity card 7-0119-0457, YORLENY FERRETO SOLANO, holder of national identity card 4-0155-0255, YORLENY SALAZAR NARANJO, holder of national identity card 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, holder of national identity card 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, holder of national identity card 5-0262-0980, and YURLY ARGUELLO ARAYA, holder of national identity card 1-0870-0756, request to be recognized as co-interveners (coadyuvantes) in this action; the following is resolved: Article 83 of the Law of Constitutional Jurisdiction provides that within fifteen days following the first publication of the notice referred to in paragraph 2 of Article 81, the parties appearing in matters pending at the time the action was filed, or any persons with a legitimate interest, may enter an appearance in the proceedings for the purpose of supporting the arguments that may justify its admissibility or inadmissibility, or, where applicable, to expand the grounds of unconstitutionality with respect to the matter that concerns them.
In the specific case at hand, the petitioners appeared within the statutory period and request that they be recognized as intervening parties (coadyuvantes), on the grounds that their status as judicial officers gives them a legitimate interest in challenging the law in question. They contend that the legal amendment enacted through law No. 9544 is detrimental to the conditions for qualifying for a pension in the Judicial Branch. Accordingly, and given that the first publication of the notice occurred on March 21, 2019, the proper course of action is to recognize them as intervening parties in this matter. The interested parties are hereby advised that — with respect to the effects of intervention (coadyuvancia) — since an intervening party is not a principal party to the proceeding, they will not be directly harmed or benefited by the judgment; that is, the force of the judgment does not reach the intervening party in a direct and immediate manner, nor does the principle of res judicata bind them, nor do the immediate enforcement effects of the judgment apply to them, since through intervention it will not be possible to compel the jurisdictional authority to issue a ruling in their favor, given that they were not a principal party to the proceeding.
What may affect them — though not by virtue of their status as an intervening party, but rather as it would affect anyone — is the erga omnes effect of the ruling. A judgment in constitutional matters does not confer a particular benefit on anyone, not even on the petitioner; it is in the prior proceeding where such a benefit may be recognized. The hearings granted to the Office of the Attorney General of the Republic (Procuraduría General de la República), to the President of the Board of Directors of the Legislative Assembly, and to the President of the Supreme Court of Justice, in the resolution of 1:05 p.m. on February 22, 2019, are hereby deemed answered.
"(Justice) Hernández, who sits on the Constitutional Tribunal, assures that she will not express her opinion and will not resolve any referral related to the reforms to the Judicial Branch's pension and retirement system, as she considers that she would be directly benefited or harmed. 'It is clear that if any Judicial Branch pension case reaches the Constitutional Chamber, I will file the corresponding recusal, hoping it will be admitted. On the matter, I have full confidence that the Legislative Assembly will make informed decisions, respectful of the Constitution and the law, with regard to the Judicial Branch's pension and retirement system,' Justice Hernández stated in a note addressed to legislator Franklin Corella of the PAC. (Emphasis not in the original.) The President of the Sala IV, Ernesto Jinesta, also announced on Friday that he will abstain from ruling on any referral regarding the cuts to high pensions promoted by the Legislative Assembly or the Government." She states that, furthermore, months later on February 5, 2017, the same newspaper reflected a legislator's impression of her favorable position toward whatever the Assembly decides on the matter of the Judicial Branch's pension and retirement system, making it clear that public opinion recognized that she had already taken a position on this matter:
"Although that action is not directly related to the laws passed last year, a decision by the Sala IV would make clear the Justices' opinion on high pensions.
Asked about this, Ottón Solís, a legislator from the Partido Acción Ciudadana (PAC), highlighted that there are Justices who can be considered 'bastions of ethics, who understand that they should not defend their own interests, such as Nancy Hernández.' He assured that there are others who do pursue their own interests, 'such as the presiding Justice of the Court,' who opposes the cuts." She states that such conduct, for any reasonable observer, could be interpreted as a prejudgment of legal opinion — in this case, one of acceptance of the Law challenged in the present expediente — and that in fact a significant number of people consider that she has pronounced herself in favor of the constitutional correctness of the Legislative Assembly's actions, thereby calling into question the degree of her impartiality in this dispute. She indicates that it is precisely in these types of cases that prudence and care regarding the perceptions that may be held by members of the public must prevail.
She adds that, in that same vein, the so-called "Bangalore Principles of Judicial Conduct," issued by the United Nations on judicial conduct, state in the commentaries related to the obligation of impartiality that the assessment of its existence must be made taking into account the perception of a reasonable observer; and likewise, other concepts reaffirm this idea and the one expressed above regarding the importance of appearances, such as notions of "a sense of grievance or injustice," "reasonable perception," or "the offering of guarantees that rule out any legitimate doubt regarding impartiality" that could erode confidence in the justice system. She now notes that the arguments of the present motion and the claims set forth are not new to the President of this Chamber, nor in the least inaccessible. She states that during the processing of the Legislative Referral (Consulta Legislativa) of the law now challenged, conducted under expediente 17-017148-0007-CO, the recusal of Justice Jinesta Lobo was accepted; with respect to the recusals filed by the remaining sitting members of the Tribunal at that time, she proceeds to explain as follows, offering as a necessary preamble that originally the full Chamber at that time filed its recusal, which was accepted by the President; however, subsequent recusals filed by the alternate Justices selected by lottery obligated the President of the Constitutional Chamber to reinstate the full Tribunal that had already been disqualified, with only one exception: Justice Jinesta Lobo. She argues that, in the case of the recusal motion filed by Justice Jinesta Lobo on November 21, 2017, he grounded his motion as follows:
"As is publicly and notoriously known, since the Full Court (Corte Plena) session of June 20, 2016, at which the topic of the reform to the Judicial Branch's pension and retirement system was addressed, as I announced at that moment and through a public statement in subsequent days, from that point on I would recuse myself from hearing and deciding any matter — even matters involving pension systems other than that of the Judicial Branch — where a reform to those systems was under discussion […] None of the other sitting Justices are in my situation, such that my recusal carries greater weight, having already been disqualified previously in 446 matters before the Constitutional Chamber." She argues that the words of Justice Jinesta Lobo were echoed by the President of this Chamber, since indeed, by resolution of the Presidency issued at ten hours forty minutes on February 27, 2018, it was decided to reinstate Justices Fernando Cruz Castro, Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fdo.
Salazar Alvarado, and alternate Justice José Paulino Hernández Gutiérrez, while keeping Justice Jinesta Lobo disqualified. She indicates that from the analysis of the aforementioned resolution, it is clear that the additional reasons stated by Justice Jinesta Lobo were what kept him disqualified from hearing the Legislative Referral at that time — the same referral that today, now a law of the Republic, is being challenged in the present case. She states that, for the foregoing reasons, she requests that the present recusal be accepted in the same manner as Justice Jinesta Lobo's recusal was accepted, on account of his general statements on the matter of Judicial Branch pensions, since she considers that her own equally general statements — made under practically similar conditions to those expressed by Justice Jinesta Lobo and likewise published in the media — place her in the same circumstances as Justice Jinesta Lobo.
She notes that, just as Justice Jinesta Lobo considered at the time, she considers that in her specific case, weightier reasons can be identified beyond those shared by the other members of this Chamber, warranting her disqualification from hearing the present case. She argues that, moreover, these types of situations — in which a Justice's recusal is accepted during the processing of a proceeding as a result of public statements made by a member of the Tribunal — are not new to the President of this Chamber. For instance, during the processing of the Legislative Referral conducted under expediente 18-016546-0007-CO, Justice Cruz Castro filed the following motion:
"In light of the fact that it has been publicly known that I, the undersigned Justice, have expressed views on matters related to the bill 'Ley de Fortalecimiento de las Finanzas Públicas,' legislative file N° 20.580, all of which may be interpreted as indicating that I have already prejudged some of the arguments that may be the subject of the optional referral for constitutional review of this bill, I hereby file this recusal in this expediente. […]" She states that the aforementioned self-recusal motion (gestión de inhibitoria) was accepted by the Presiding Justice (Presidencia) by means of a ruling issued at eight fifty in the morning on November 2, 2018. She notes that, although the foregoing procedural acts were specific to the processing of a Legislative Consultation (Consulta Legislativa), the present constitutional challenge (acción de inconstitucionalidad) concerns facts and legal provisions that were previously consulted when they formed part of a bill, and that are now enacted law of the Republic.
In that regard, she argues that the scope of the present motion is likewise not novel to the Presiding Justice of this Chamber. She adds that, as previously noted, Justice (Magistrado) Cruz Castro filed a self-recusal motion during the processing of the Legislative Consultation of the "Ley de Fortalecimiento de los Finanzas Públicas" bill, in accordance with the scope described above, which was accepted at that time by the Presiding Justice; furthermore, Justice Cruz Castro himself filed a new self-recusal motion during the processing of several constitutional challenges (19-0004931-0007-CO, 19-006416-0007-CO, 19-008080-0007-CO, and 19-008087-0007-CO), brought against various provisions of the "Ley de Fortalecimiento de los Finanzas Públicas," invoking the same arguments as those set forth in the self-recusal motion filed in the Legislative Consultation (18-016546-0007-CO) described in the preceding paragraphs; and that motion was accepted by the current Presiding Justice, Justice Fernando Castillo Víquez, by means of a ruling issued at ten forty-one in the morning on May 24, 2019.
She argues that, on another matter, during the processing of the Legislative Consultation on the bill concerning reforms to the pension and retirement regime of the Poder Judicial (17-017148-0007-CO), she, in her capacity as Justice, filed a self-recusal motion based on facts similar to those in the present motion, and on that occasion the Presiding Justice of the Chamber, by means of a ruling issued at ten oh five in the morning on March 22, 2018, rejected the request to remove her from hearing that case, given that, in accordance with the arguments put forth by Justice Fernando Cruz Castro:
"What Justice Hernández López expressed does not constitute an opinion pronouncing on the particular content of the consultation. She merely expresses her confidence in the decisions that the parliament will make on the subject of the retirement regime of the Poder Judicial. The statements made by Justice Hernández López do not contain any specific pronouncement on the matters that are the subject of this consultation. Under the particular conditions in which we, as sitting Justices, hear this matter by mandate of law, the statements of Justice Hernández López do not compromise her impartiality." She considers it incomprehensible that the arguments she has consistently advanced in support of her removal from hearing the aforementioned consultation — and now the present constitutional challenge — are not deemed sufficient to grant her self-recusal motion, when the facts she brings to the Chamber's attention are of the same nature as those that gave rise to the removal of Justices Jinesta Lobo and Cruz Castro, in that both offered generic opinions (which were reproduced in various media outlets) on the reform to the pension regime (in the case of the former) and on the retirement regime of the Poder Judicial and the reform of the "Ley de Fortalecimiento de las Finanzas Públicas" (in the case of the latter), just as she did.
She indicates that it cannot be overlooked that the new reform to the Código Procesal Civil included among the grounds for disqualification (causales de impedimento) (see Article 12, paragraph 13 of the Código Procesal Civil) the fact that the judge has "expressed, outside the exercise of his or her functions, an opinion in favor of or against any of the parties" — a condition that was not provided for in the Código Procesal Civil that had been in force since 1989. She argues that in the case of the Legislative Consultation on the bill concerning reforms to the pension and retirement regime of the Poder Judicial (17-017148-0007-CO), she stated, with respect to the legislative work, that "On this matter, I have full confidence that the Asamblea Legislativa will make informed decisions that are respectful of the Constitution and the law regarding the pension regime of the Poder Judicial" — words that constitute a reference to, or an opinion about, one of the parties to the proceeding (expressing nothing less than a vote of confidence), in that case, the legislators who ultimately submitted the bill to this Chamber for consultation.
She asks that attention be given to the fact that, in the particular case at hand, her words expressed about the bill — while the Legislative Consultation on the reforms to the pension and retirement regime of the Poder Judicial was still pending — were perceived by the parties as an opinion, to such a degree that even Deputy Ottón Solís Fallas stated: "When asked about this, Ottón Solís, a deputy from Partido Acción Ciudadana (PAC), highlighted that there are justices who can be considered 'bastions of ethics, who understand that they should not defend their own interests, as Nancy Hernández does.' He affirmed that there are others who do pursue their own interests, 'like the Chief Justice of the Court, who opposes the cuts.'" In light of the foregoing, she considers that it cannot validly be maintained that the appearance of impartiality of the Chamber has not already been compromised, or that there are no alternate Justices with a lower level of conflict who could guarantee to the parties and to the Chamber the due impartiality.
She notes that, in the specific case at hand, the opinion of then-Deputy Ottón Solís and the publications in various media outlets described above, in her view, constitute an additional ground for disqualification, in accordance with the scope of the new Código Procesal Civil, set out in paragraph 16 of Article 12, which provides:
"ARTICLE 12. — Grounds for disqualification. The following are grounds for disqualification:
16. The existence of circumstances giving rise to justified doubts regarding the judge's impartiality or objectivity." She adds that, by reason of this most recent cited reform to the Código Procesal Civil, and of the analysis of the self-recusal motions described above that were accepted by the Presiding Justice of this Chamber, and especially in order to assure the challenging parties of "the offering of guarantees that dispel any legitimate doubt as to impartiality," capable of eroding public confidence in justice, the present self-recusal motion is hereby filed. Finally, she states that she clearly understands the dilemma that this matter poses for the Chamber and its legitimacy and, precisely for that reason, she considers it of the utmost importance to set forth her reasons and to inform the Presiding Justice of the Chamber so that appropriate action may be taken with respect to the ground invoked.
168. By means of a ruling issued at 9:42 a.m. on October 10, 2019, the Presiding Justice of the Sala Constitucional, Justice Fernando Castillo Víquez, rejected the foregoing motion filed by Justice Hernández López and ordered that she remain eligible to hear this matter, and that the processing of the case file continue.
169. On November 14, 2019, Mario Mena Ayales appeared in his capacity as legal representative of the Asociación Nacional de Empleados Judiciales (ANEJUD) to file a recusal challenge (incidente de recusación) against Sala Constitucional Justice Nancy Hernández López, and stated that, as appears in the record, by means of a ruling issued at 9:07 a.m. on February 13, 2019, the panel for the hearing of this constitutional challenge was composed of Justices Fernando Castillo Víquez, Paul Rueda Leal, Nancy Hernández López, Luis Fernando Salazar Alvarado, Jorge Araya García, and alternate Justices José Paulino Hernández Gutiérrez and Marta Esquivel Rodríguez. He indicates that Justice Hernández López filed a new self-recusal motion and considers that, based on her own words, she has compromised her role as a judge of the constitutionality review body, given that it is not appropriate for her to issue a ruling by way of a judgment in a matter in which she has already, in advance, openly and directly expressed a position aligned with the interests of the legislature, which creates a legal and moral impediment that consequently obliges her to recuse herself from hearing and voting on the unconstitutionality of the law.
He adds that, notwithstanding the foregoing, the Presiding Justice of the Sala Constitucional rejected the new self-recusal motion filed by Justice Hernández López, and in that regard states that the immediate removal of Justice Nancy Hernández López from hearing the matters assigned to her with respect to case file 18-007819-0007-CO is lawful, necessary, proportionate, and correct, on the grounds that she prejudged the issue not only before the members of the Sala Constitucional in the cited rulings, but also through social media and other communications outlets. He considers that the Justice offered her premature opinion regarding the substantive matter at issue in this case file, and that this, without any doubt, violates the principles of objectivity, impartiality, and judicial independence, and reveals a subjective and one-sided position in favor of the 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, paragraph 3 of the Ley Orgánica del Poder Judicial, Justice Hernández López be deemed removed from hearing case file number 18-007819-0007-CO on the grounds that she is legally disqualified from doing so by virtue of having prejudged the matter.
170. By means of a ruling of the Presiding Justice of the Sala Constitucional issued at 2:52 p.m. on November 26, 2019, Justice Nancy Hernández was given the opportunity to be heard (audiencia) in connection with the recusal challenge filed against her by the Asociación Nacional de Empleados Judiciales.
"2. Judges shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason." (underlining not in the original.)
She argues that none of the cited rules has been respected in these proceedings. She requests that the President of the Chamber reconsider the motion for self-recusal she originally filed and that she be removed from hearing this case.
"The generally accepted criterion for disqualification is the reasonable surmise that bias exists. Various formulas have been applied to determine whether it may the existence of predisposition (predisposición) or prejudice may be assumed. The formulas have ranged from "a high probability" of predisposition to "a real probability," "a substantial possibility," and "a reasonable suspicion" of predisposition. The assumption that predisposition exists must be reasonable and must be entertained by reasonable, fair-minded, and well-informed persons who raise the issue and obtain the necessary information. The relevant test consists of the following question: "What conclusion would that person reach upon examining the matter in a realistic and practical way, having studied it thoroughly? Would that person think it more likely than not that the judge, consciously or unconsciously, will not decide fairly?" (...) The existence of the hypothetical reasonable observer (observador razonable) of the judge's conduct is posited in order to emphasize that the test is objective, grounded in the need for public confidence in the judiciary, and not based solely on the assessment that other judges make of a colleague's capacity or performance." [The party] states that in this specific case, it is clear that, given the well-known fact that one of the female Justices on the Constitutional Chamber expressly refers to the existence of a "real predisposition"—arising from a statement by one of the parties to the proceeding, which she characterizes as a direct attack on her independence as a judge—how would a reasonable observer assess the situation of the other two Justices who are in an identical position with respect to that attack, since it was directed jointly against all three judges?
Does this situation affect public confidence? [The party] states that in support of this point, it must be said that its client, as a party to these proceedings, does not feel genuine confidence that Justices Paul Rueda Leal and Fernando Castillo Víquez can abstract themselves from that type of statement and keep their judgment untainted, just as Justice Hernández López has assessed and expressly acknowledged; indeed, this is an objective element that attests to the capacity of ANEJUD's conduct to affect the impartiality of Justices Rueda Leal and Castillo Víquez. [The party] states that, whichever option is adopted in the present case, undeniably from the perspective of a reasonable observer, in the case of Justices Paul Rueda Leal and Fernando Castillo Víquez there exists a "reasonable assumption of the existence of predisposition" that warrants their corresponding recusal (recusación), as established in commentary 90(a) of the Bangalore Principles on Judicial Conduct. [The party] adds that the citation made in the resolution of this Sala Constitucional of 9:42 a.m. on October 10, 2019, from the "Commentary on the Bangalore Principles of Judicial Conduct," commentary 100, is imprecise and therefore unacceptable. [The party] indicates that what was expressed in that resolution by the Justice Fernando Castillo Víquez, now subject to recusal herein, as President of the Chamber when rejecting the voluntary disqualification (inhibitoria) of Justice Nancy Hernández López, was:
"Regarding the Bangalore Principles on Judicial Conduct cited by Justice Hernández López, commentary 100 specifies that 'Certain circumstances may make it necessary to set aside the [impartiality] principle examined above. [Especially] in courts of last resort that have few justices and important constitutional and appellate functions that cannot be delegated to other judges'" (emphasis not in the original). The Costa Rican constitutional jurisdiction, given the characteristics described in the preceding considerando, falls within this last exception provided for by these very principles." [The party] asserts that the citation is incorrect and makes an expansive and improper interpretation of the commentary; the original text, read in context, provides:
"Matters that do not constitute 'economic interest' 99. Economic interest does not extend to securities or participation that a judge may hold, for example, in mutual or common investment funds, to deposits a judge may maintain in financial institutions, mutual savings associations, or credit unions, or to government-issued securities held by the judge, unless the judicial proceeding may substantially affect the value of those securities or participation. Nor is disqualification (descalificación) warranted if the judge is merely a customer conducting ordinary transactions with a bank, insurance company, credit card company, or similar enterprises that are parties to a proceeding in which no special controversy or transaction is pending that affects the judge. The fact that an educational, charitable, or civic organization in which the judge's spouse, a relative, or child serves as director, officer, adviser, or in another capacity holds financial securities does not mean, depending on the circumstances, that the judge has an economic interest in that organization.
Similarly, in proceedings with highly minor and remote financial consequences at the time of judgment, 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 such circumstances and to place the matter on the record at an open hearing so that the parties, and not only the attorneys, are informed. Lay clients are sometimes more suspicious and less trusting than the judge's professional colleagues. The foregoing notwithstanding, disqualification of a judge will not be necessary if no other court can be constituted to hear the case, or when, due to urgent circumstances, the judge's non-participation could result in a serious denial of justice.
Commentary Doctrine of Necessity 100. Certain extraordinary circumstances may make it necessary to set aside the principle examined above. The doctrine of necessity permits a judge who would otherwise be required to recuse himself or could be disqualified to hear and decide a case when failure to do so could result in an injustice. This may occur when there is no other judge reasonably available who is not equally disqualified, or if a postponement or inconclusive trial would cause very serious problems, or if the court could not be constituted to hear and decide the relevant matter if the judge in question did not participate. Naturally, such cases will be of rare and special occurrence. However, they may arise from time to time in courts of last resort that have few justices and important constitutional and appellate functions that cannot be delegated to other judges." [The party] indicates that, as can be seen, there are two things to note about the citation of the commentary in the resolution: first, the clear reference to "extraordinary circumstances" is omitted; and second, the phrase "the principle examined above" is replaced with "the principle of impartiality." [The party] indicates that this practically exempts the constitutional jurisdiction from respecting the human right to be judged by an impartial judge. [The party] notes that this interpretation is in itself truly difficult to accept, and is even incoherent with the normal functioning of the Sala Constitucional, since, precisely for the consideration of the present action, the permanent separation of Justice Cruz Castro is acknowledged, as was that of Justice Jinesta Lobo at an earlier point.
In other words, [the party] indicates, the application of the principle of impartiality is left to arbitrary discretion, which truly contravenes the principle of prohibition of arbitrariness (interdicción de la arbitrariedad), also developed in the jurisprudence of the Sala Constitucional. [The party] states that from its client's perspective—and for that reason the broad citation of the commentary was made—what is expressed in number 100 must be read in relation to principle 2.5.3, "The judge, or a member of his family, has an economic interest in the outcome of the matter in controversy," precisely in the sense that in those cases the commentary establishes the possibility that "exceptionally," even where the judge has an economic interest, the judge could remain on the case in order to avoid serious harm to the parties. [The party] argues that this aspect is in fact reinforced if one attends to the format used in the document containing the "Commentary on the Bangalore Principles of Judicial Conduct," in which the value is stated and the principles derived from it are then set out, the value being "impartiality"; that is, what is described as an exception applies not to the "value" itself but to one of the principles derived from it. [The party] states that along these same lines it must be added that the interpretation made by Justice Castillo Víquez would not withstand confrontation with the adverse ruling 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 ruled:
"172. As has been established, in the criminal proceedings against journalist Mauricio Herrera Ulloa an appeal of cassation was filed on two occasions (supra para. 95.r and 95.w). The Court notes that the four regular justices and the substitute justice who comprised the Sala Tercera of the Supreme Court of Justice when deciding on May 7, 1999 the appeal of cassation filed by the attorney for Mr. Félix Przedborski against the acquittal were the same ones who decided on January 24, 2001 the appeals of cassation filed against the conviction by the defense attorney for Mr. Mauricio Herrera Ulloa and special representative of the newspaper 'La Nación,' and by Mr. Herrera Ulloa and Mr. Vargas Rohrmoser, respectively (supra para. 95.y).
173. When the Sala Tercera of the Supreme Court of Justice resolved the first appeal of cassation, it annulled the appealed judgment and ordered the case remitted to the competent tribunal for a new determination, on the basis that, inter alia, 'the reasoning of the judgment is not sufficient to rationally rule out the existence of direct or eventual intent (with respect to the crimes charged)' (supra para. 95.s).
174. The justices of the Sala Tercera of the Supreme Court of Justice should have recused themselves from hearing the two appeals of cassation filed against the conviction of November 12, 1999 because, in this Court's view, when resolving the appeal of cassation against the acquittal of May 29, 1998, those same justices had analyzed part of the merits, and did not rule only on procedural form.
175. For the foregoing reasons, the Court concludes that the justices of the Sala Tercera of the Supreme Court of Justice, when resolving the two appeals of cassation filed against the conviction, did not meet 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).
It states that, in that case, it was not sufficient that the Sala Tercera de Casación was the sole court with that mandate, and that the high International Tribunal determined that even in such circumstances the fundamental Human Right of impartiality of the adjudicator had to be guaranteed. On this point, it notes that it is evident that those here challenged had already intervened in a ruling of this Sala Constitucional in which they issued an opinion on the constitutionality consultation (consulta de constitucionalidad) that gave rise precisely to the text now being examined by way of the action of unconstitutionality (acción de inconstitucionalidad) filed by the party represented, adding this circumstance to what has already been stated in order to consider them duly challenged and disqualified from issuing a ruling on the merits (resolución de fondo) in this matter, in defense of the principle of impartiality, on which the Court has already pronounced.
It argues that the position of Justice Hernández López, who has honestly and transparently pointed out a circumstance that in fact extends to other justices and to the party represented as co-participants in this proceeding who, for circumstantial reasons, were brought into this proceeding by virtue of the consolidation of proceedings (acumulación de procesos), is understood and clearly supported. It states that the claims raised in this case on behalf of the collective it represents now find themselves in the predicament of having to be resolved by judges, as in the case of Justice Nancy, who have been attacked by one of the parties on an essential element of the adjudicator, namely the principle of Judicial Independence. It adds that, in this case, having been the subject of specific discussion within this proceeding, it is not possible to ignore the situation of Justices Paul Rueda Leal and Fernando Castillo Víquez, who have likewise been the subject of such challenges by one of the claimants in the proceeding and that, definitively, this type of interpellation means their final resolution could be conditioned by the implications those attacks generate.
It considers that this creates a cloud of doubt over the objectivity those adjudicators might have when issuing the final resolution, making it impossible for the party represented, as a party to this proceeding, to trust that their rulings will be made in abstraction from those attacks, thereby generally undermining the value of impartiality invoked. It requests that the recusal (recusación) filed against Justices Hernández López, Rueda Leal, and Castillo Víquez be granted on the grounds that they have a legal and conventional impediment (impedimento legal) to continue hearing this matter; and consequently, that they be removed and that the respective substitutes, in order of rotation, be designated as soon as possible, given the urgency of resolving this action of unconstitutionality, inasmuch as the vacatio of the reform has already expired and, as of December 2019, concrete harm would be occurring to the rights of individuals who had expectations of retiring under the previous legislation, should the arguments of unconstitutionality outlined be upheld.
He opposes the reports submitted by the Legislative Assembly and by the Procuraduría General de la República, and concludes by requesting that the Court uphold the Action of unconstitutionality and declare Articles 236 and 236 bis of Ley N°9544 null and void on the grounds that they are contrary to the International Conventions protecting the human rights cited by the Inter-American Court of Human Rights in the ruling of Mulles Flores vs Perú.
"It must be recalled that the annulment of a provision by connection is permitted only exceptionally, when such annulment is imposed as an inevitable consequence of the favorable judgment; otherwise the judgment would be unable to produce its effects if there exists in the legal system another provision that sustains the regulation whose unconstitutionality was declared by this Tribunal, meaning that the petitioner's claim would ultimately remain unsatisfied. Hence the identity that both normative scenarios must bear in relation to the subject matter discussed in the corresponding action. That is, it is not sufficient that the reasoning developed in a given judgment is equally applicable to another scenario in order to claim that the latter is affected by connection: at most, that could give rise to the filing of another action invoking precedents already established by case law, but it could never produce the automatic annulment of such provisions within the same judicial proceeding in which the precedent was established.
In the specific case, the analysis of the arguments set forth in the action has made it evident that the petitioner's disagreement refers, as already noted, to the statutory provision establishing nullity in the event that the formalities prescribed for the registration of shareholders' meeting resolutions are not observed, and the merits analysis of the action must be confined to that subject matter." He indicated that the foregoing Law would enter into full force on June 20, 2020, and contains provisions that regulate the same factual situation—that is, compelling retirees and pensioners to contribute greater amounts as a result of the reduction of the exempt base (base exenta) and, as a consequence thereof, increasing the amounts of the special solidarity contribution that his clients would be required to pay. He argued that, in support of the finding that connection exists, account must be taken of the fact that the Constitutional Chamber resolved, as far back as the year 2000, in judgment 2000-11036 issued at 2:00 p.m. on December 13, 2000, that:
"Now, Article 89 of the Ley de la Jurisdicción Constitucional provides that 'The judgment declaring the unconstitutionality of a provision, law, or general disposition shall also declare the unconstitutionality of the other provisions thereof, or of any other law or disposition whose annulment is evidently necessary by connection or consequence, as well as that of the challenged acts of application.' In this regard, it must be borne in mind that this Chamber has already noted in repeated case law that this provision 'does not imply an indiscriminate power to annul provisions whose constitutionality has not been challenged in the proceedings, but rather constitutes an obligation on the Chamber aimed at preventing the survival, once an unconstitutionality is declared, of another provision or provisions that would render the effects of the favorable judgment nugatory, or whose non-annulment would give rise to serious incongruences within the legal system, and specifically in the regulation of the same subject matter, which this Chamber, given its nature as a Constitutional Tribunal and its function of integrating the legal order, must annul insofar as that proves evidently necessary as a consequence of the granting of the action, or by virtue of the connection—legal or logical—with the challenged point.' (Resolution N° 989-93, issued at 3:27 p.m. on February 23, 1993)." He considered that from the foregoing considerations it is entirely clear that the claims of his clients can only be satisfied by annulling Article 236 bis of Ley N°8, as introduced by Ley N°9544, and, by connection, Articles 1, 2 subparagraph b), 4 subparagraph b), 5, and 7 of Ley N° 9796, which modified it as of December 5, 2019.
He indicated that the objective of the bill at its inception, according to the affirmative majority opinion of the Comisión Permanente Ordinaria de Asuntos Sociales of the Legislative Assembly of September 4, 2019, was:
a. "The initiative in its base text proposes lowering the exempt base of the mandatory solidarity contribution of the pension schemes of the Magisterio Nacional, the Judicial Branch, and the Ministry of Labor, which will allow a considerable group of retirees who are currently exempt to make the aforementioned contribution, and in the future, by redesigning the exempt base of the solidarity contribution payment below the maximum pension ceiling agreed upon for all special schemes, extended coverage over time is achieved for the solidarity contribution. ..." b. "Furthermore, it establishes that above eight (8) of the lowest salaries according to the relevant Public Administration (whether the Judicial Branch, the Executive Branch, the Supreme Electoral Tribunal, the Magisterio Nacional, the Ministry of Labor and Social Security, etc.) the percentage deductions for special solidarity contribution would apply.
That is, the pension or retirement benefit would be exempt up to that amount. This is a modification that applies to all pension and retirement ceilings, present and future, established in current legislation." c. "... to eliminate the specific earmarking on the grounds that, in the end, what will cease to be paid through the increase in the solidarity contribution constitutes a saving for the State. This is because pensions are not self-financed but rather constitute, for the most part, public debt, so a contribution to the public treasury would already be made through the savings." In summary, it is noted that bill N°21.305 sought to resize and increase the special solidarity contribution (contribución especial solidaria), similar to the one already existing in the Ley Orgánica del Poder Judicial under Article 236 bis, but by lowering the exempt amounts (reduced from 10 base salaries (salarios base) of the lowest-paid salary to 6 base salaries), in order to collect greater resources from the schemes charged to the National Budget or Ley Marco, including the Poder Judicial and the Magisterio Nacional, for the purpose of contributing to the public finances (finanzas públicas).
It further adds that the object or purpose of the law that emerged from bill N°21.305 and resulted in Ley N°9796 was to set a lower contribution floor or base (exempt amount) than the one previously in place (for pensioners of the Magisterio and Ley Marco it was reduced from 10 to 8 base salaries), and in the case of the Poder Judicial, the special solidarity contribution is reduced from 10 base salaries of the lowest-paid position in that branch to 6, so that the number of contributors and the amount of the contribution are increased through this type of solidarity contribution; a reduction that, as can be seen, is aimed at contributing to the public finances. It further adds that, in accordance with the very text of the rule challenged as unconstitutional by connection, Ley N°9796 was enacted, pursuant 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 (topes de pensión máxima) and of the pension exempt (pensión exenta) from the special solidarity contribution established on the special pension schemes (regímenes de pensiones especiales) contained in Article 3 of Ley N.o 9383, Ley Marco de Contribución Especial de los Regímenes de Pensiones, of July 29, 2016; Article 236 bis of Ley N.o 8, Ley Orgánica del Poder Judicial, of November 29, 1937; and in Article 71 of Ley N.o 2248, Ley de Pensiones y Jubilaciones del Magisterio Nacional, of September 5, 1958, which govern the schemes of the Poder Judicial and the Magisterio Nacional, respectively." It further adds that, according to the legislature itself, the special solidarity contribution increases its revenue by redesigning the maximum pension caps and the exempt pension, meaning that the situation of retirees and pensioners (jubilados y pensionados) of the Poder Judicial whose pension amounts exceed the exempt amount becomes more burdensome, as they will be required to contribute a greater portion of their monthly pensions; hence, the reform introduced by Articles 1, 2 subparagraph b), 4 subparagraph b), 5, and 7 of Ley N° 9796 has an evident connection to the rule challenged as unconstitutional in this action, so that even if Article 236 bis of Ley N°8 is declared unconstitutional and the special solidarity contribution is annulled, were Ley N°9796 not also annulled, the special solidarity contribution would remain in force in the legal order, with another rule subsisting that would render the effects of an affirmative ruling nugatory.
It notes that the text of the bill and subsequently Ley N°9796 created new mechanisms for defining the maximum pension caps, establishing a floor within each of the pension schemes governed under the Magisterio Nacional, the Poder Judicial, and others such as the general pension scheme (régimen general de pensiones) charged to the National Budget as well as special pension schemes; nonetheless, the amounts exempt from the special, solidarity, and redistributive contribution that had previously been set by Article 236 bis of Ley N° 8, as amended by Ley N°9544, at 10 base salaries of the lowest-paid position in the Poder Judicial, are now limited to 6 base salaries, which undeniably establishes a line of connection between the rule challenged as unconstitutional and the new Ley N°9796. It further adds that the objective of Articles 1, 2 subparagraph b), 4 subparagraph b), 5, and 7 of Ley N° 9796 was to increase revenue collection and capture new contributors from whom the special, solidarity, and redistributive contribution would be reduced.
It states that, in the case of retirees and pensioners of the Fondo de Pensiones y Jubilaciones del Poder Judicial, pensions with a monthly amount up to ¢2.544.800 (two million five hundred forty-four thousand eight hundred colones exactly) would be exempt from payment of this contribution, and from that amount onward, retirement pensions would be subject to the special solidarity and redistributive contribution. It warns that, toward this end, Ley N°9796 amends Article 236 bis of the Ley Orgánica del Poder Judicial, which addresses the special solidarity and redistributive contribution, now setting it at 6 base salaries. It notes that in the case of the Poder Judicial, which maintains and administers a Fondo de Jubilaciones y Pensiones (retirement and pension fund) for its employees, the most serious concern is that there is no guarantee that the amounts withheld as a special solidarity contribution will be directed to that fund itself, since Article 1 of Ley N° 9796 defines the objective as contributing to the public finances.
It further adds that the purpose indicated by Ley N° 9796 could be contrary to what was established by the Constitutional Court itself in ruling 1999-05236 of 14:00 hours on July 7, 1999, in which it was stated that the special solidarity contribution must go to the pension fund (social security), specifically noting:
"For the petitioners, the quoted table demonstrates what they call 'fiscal voracity.' This argument, as presented for examination, is likewise inadmissible, because this Court has already indicated that this type of contribution to the scheme is not assimilable to a tax. Now, the challenged provision states that this contribution shall be made 'in favor of the State,' but given the special circumstances surrounding the rules under examination, the Court understands that what the provision expresses is that the contribution is made in favor of the retirement and pension scheme (régimen de jubilaciones y pensiones), since there is no justification for a contribution that has been designed to bolster that fund to instead flow into the coffers of the Public Treasury as such — that is, into the State's single treasury account. It must be recalled that the jurisprudence of this Tribunal has consistently held that these contributions, by their nature, do not constitute taxes within the meaning contemplated by the Constitución Política in Articles 18 and 121 subparagraph 13), and if that is not the case — if instead this is a special contribution to a social security system that must be financed, in principle, in equal shares by workers, employers, and the State — it would be a legal error to provide for a contribution in favor of one of these three parties, since such a procedure would result in a lawful means of circumventing the obligations the Constitución Política has envisioned; that is, by this route the State could easily shift the burden of its contribution onto the other obligated parties (employees and employers), thereby draining Article 73 of the Constitution of its substantive content.
In light of the foregoing, requiring one of the parties involved to contribute in favor of another violates Article 73 of the Carta Política; it is, however, constitutionally permissible for the contribution established by the legislature by law to have as its sole purpose the augmentation of the social security fund — that is, the contribution challenged in this action is conceived exclusively to benefit the scheme of the obligated contributors, but under no circumstances may those monies enter the coffers of the State as current revenue to satisfy current expenditures other than those arising from the retirement and pension system's obligations. In light of the foregoing, the unconstitutionality of the phrase contained in Article 70 that literally reads: 'shall contribute in favor of the State...' is clear. In all other respects, the action is inadmissible." (Underlining and emphasis not in the original) [The petitioner] further argues that Ley N°9796 and Article 236 bis of the Ley Orgánica del Poder Judicial would likewise be unconstitutional, insofar as both provisions broke the balance in the financing of the pension fund (fondo de pensiones) established in Article 73 of the Political Constitution, which has been repeatedly recognized by the Sala Constitucional.
When a special solidarity contribution (contribución especial solidaria) for a social security system (sistema de seguridad social) must in principle be financed in equal shares among workers, employers, and the State, it constitutes a legal error — rendering the measure unconstitutional — to provide that one of these three parties must contribute in a more burdensome and disproportionate manner than the other two. [The petitioner] states that, in this case, pensioners and retirees of the Poder Judicial would be required to contribute up to 55% of their pension income, while the contributions of the employer (the Poder Judicial) and the State remain unchanged. [The petitioner] insists that Articles 1, 2(b), 4(b), 5, and 7 of Ley N°9796, which amend Article 236 bis, are connected to the provision challenged in the present action in that they reduce the exempt base (base exenta), increase the number of contributors, and increase the contribution amount for pensioners who previously contributed in lesser proportions, since they share the same unconstitutional foundation as Article 236 bis of Ley N°8. [The petitioner] adds that, in order to clearly demonstrate the effect produced by Ley N°9796 in worsening the situation of pensioners and retirees of the Poder Judicial through the amendment introduced by Articles 1, 2(b), 4(b), 5, and 7 of Ley N°9796 to Article 236 bis of the Ley Orgánica del Poder Judicial, [the petitioner] provides a summary of the legal changes and their actual effects on the ongoing pensions of those represented: a) Article 1 defines the purpose of the law and states, in relevant part, that Ley N°9796 will amend Article 236 bis of the Ley Orgánica del Poder Judicial, as introduced by Ley N°9544, and that the purpose of the law is to contribute to the public finances of the country; b) Article 2(d) of Ley N°9796 states that it shall apply to various pension regimes, including the one governed by Ley N°8, known as the Ley Orgánica del Poder Judicial, and therefore, with respect to the scope of that law, there is a connection to Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial; c) Article 4 governs the maximum and universal pension amount exempt from the special solidarity contribution and expressly modifies the maximum exempt pension threshold for pensioners and retirees of the Poder Judicial, reducing it from 10 base salaries (salarios base) of the lowest-paid position to 6 base salaries of the lowest-paid position in that branch; d) Article 5 establishes a maximum deduction limit of 55% on the pensions and retirement benefits of the Poder Judicial, as provided in Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial; that is, there is an evident connection or consequence between both provisions, such that both must be annulled; e) Article 7 amends subsection a) of Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial, and established that the percentages of the special solidarity contribution shall apply to the amount exceeding six (6) base salaries of the lowest-paid position in the Poder Judicial; that is, the calculation base for the pension exempt from the special solidarity contribution, which was previously set at 10 base salaries, is reduced to 6 base salaries, and the connection to Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial, is evident and manifest.
[The petitioner] states that it is very clear that no technical basis exists in the legislative file (expediente legislativo), other than the evident intention for pensioners of the Magisterio Nacional, Hacienda, and the Poder Judicial to have a very similar exempt base. [The petitioner] adds that by reducing the minimum exempt base from 10 base salaries of the lowest-paid position in the Poder Judicial to 6 base salaries, the maximum exempt pension amount is reduced by 40%, dropping from ¢4.258.000,00 to ¢2.554.800,00, given that the lowest salary paid in the Poder Judicial is ¢425.800,00 as of the date of filing this document with the Sala.
[The petitioner] adds that one example of this connection or consequence is found in the impact generated by the amendment to Article 236 bis of the Ley Orgánica del Poder Judicial by Ley N°9796. [The petitioner] adds that the amount of the special solidarity contribution for a pensioner or retiree with a monthly assigned benefit of ¢6.000.000, under Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial, would be ¢643.575,00, representing 10.73% of the nominal pension amount; however, [the petitioner] clarifies that applying the articles of Ley N°9796, that percentage increases from 10.73% to 24.95%, meaning it rises from ¢643.575,00 to ¢1.497.059,06, an increase of ¢516.476,51. [The petitioner] adds that Ley N°9796, which amends Article 236 bis of the Ley Orgánica del Poder Judicial, makes the special solidarity contribution significantly more burdensome for pensioners and retirees of the Poder Judicial who receive amounts exceeding ¢2.554.800,00, and that the connection or consequence between Article 236 bis of Ley N°8 and Articles 1, 2(b), 4(b), 5, and 7 of Ley N°9796 is therefore evident and manifest.
[The petitioner] states that the special solidarity contribution for pensioners of the Poder Judicial, when the amendment introduced by Articles 1, 2(b), 4(b), 5, and 7 of Ley N°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 Poder Judicial to 6 base salaries, which abruptly increases the special solidarity contribution; this means that all pensions exceeding ¢5.500.000 will be reduced by 55%, leaving the beneficiary with only 45% of the nominal pension amount — in other words, this does not merely replicate the special solidarity contribution but aggravates it to the detriment of the retiree and pensioner. [The petitioner] adds that the changes set out in Ley N°9796 have no technical basis in the legislative file, but are instead grounded in public expenditure control considerations, even in a case such as the Poder Judicial where a genuine fund exists.
[The petitioner] notes that, for a pensioner with a monthly benefit of ¢6.000.000, from the date Ley N°9796 enters into force, the special solidarity contribution increases from ¢643.575 to ¢1.497.059, because lowering the exempt base from 10 base salaries (¢4.258.000,00) to 6 base salaries (¢2.554.800,00) causes the special solidarity contribution amount to nominally increase by ¢516.476,51. [The petitioner] indicates that the bill N° 21.305, prior to the enactment of Ley N°9769, did not include actuarial studies that could determine the economic projections for collecting revenue under that new tax burden.
[The petitioner] notes that judicial pensioners are subject to a mandatory contribution of 13% to support the Fund, as well as a special solidarity and redistributive contribution that follows a contribution scale ranging from 35% to 55%, and warns that there is likewise a lack of a technical study to determine whether those two contributions could or could not constitute a double tax burden (doble carga tributaria) on pensioners and retirees, and a confiscatory act (acto confiscatorio) with respect to the amounts earned. [The petitioner] indicates that the requirement for complete and rigorous technical studies derives from Convenio 102 OIT and is reflected in the constitutional jurisprudence of the Sala (see judgment 2379-96 of the Sala Constitucional).
[The petitioner] states that, prior to the enactment of Ley N°9769, the principle of necessary reasonableness and proportionality was violated because, in the absence of determinative technical studies, what occurs is the making of a simple political decision, at will, amounting to unlawful confiscation. [The petitioner] indicates that the Constitution requires that the assets and economic income of workers be safeguarded, and that this protection extends to retired public servants. [The petitioner] adds that, while the 55% cap on the gross pension amount is nominally respected, the fact of the matter is that, for legislators, this limit is being transformed into a target — that is, what is sought, gradually and through various laws, is simply to impose the maximum possible deduction without proper technical justification, as reflected in Article 5 of Ley N°9796, a principle also incorporated into Article 236 bis of Ley N°8, the Ley Orgánica del Poder Judicial.
[The petitioner] considers that consolidated legal situations (situaciones jurídicas consolidadas) are being harmed, in manifest violation of Article 34 of the Political Constitution. [The petitioner] adds that the prevailing doctrine on vested rights (derechos adquiridos) is not ignored — there is no right to the immutability of the legal order — but that in these cases what is at stake is a consolidated legal status (situación jurídica consolidada), which Ley N°9796 once again disregards. [The petitioner] adds that the principle against double taxation (interdicción de una doble imposición) is violated because the solidarity contribution is a solidarity contribution in form only, since financially it is a simple levy that will go toward strengthening public finances and involves taxing income directly, and doubly so, because that income is already subject to income tax (impuesto sobre la renta).
[The petitioner] notes that these pensions are among the most heavily taxed that exist, since, as noted above, deductions are made for the pension fund, for income tax, for health insurance, the solidarity contribution, and for financing of the Junta Administrativa. [The petitioner] argues that both Article 236 bis challenged as unconstitutional and Articles 1, 2(b), 4(b), 5, and 7 of Ley N°9796, which are connected to it, present a clear violation of the Inter-American Convention on the Human Rights of Older Persons, approved by Ley 9394 of September 8, 2016, and are far from reinforcing the legal rights of older persons to continue enjoying a full pension and State support in an independent and autonomous manner, with health, security, integration, and participation in the economic, social, cultural, and political spheres. Such provisions worsen the quality of life of pensioners of the Poder Judicial who, relying on legitimate expectations (confianza legítima), retired without anticipating that subsequent State actions would reduce their net pension by 55% through the payment of contributions and the special solidarity contribution which, taken together, unquestionably become mandatory tax obligations.
[The petitioner] argues that, for the reasons set forth and given the evident connection between Article 236 bis of Ley N°8, introduced by Ley N°9544, and Articles 1, 2(b), 4(b), 5, and 7 of Ley N°9796, [the petitioner] requests that the indicated provisions be annulled, since one is a reflection of the other in that both regulate the special solidarity contribution for retirees and pensioners of the Poder Judicial, and also because both are unconstitutional in that they violate principles and rules of international treaties and conventions and of the Political Constitution, which protect the fundamental right to retirement.
It adds that according to 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 is normative in nature; the other is empirical. It notes that effectiveness is linked to the so-called "suitability" of the remedy and represents its potential "to determine whether a human rights violation has occurred and to provide what is necessary to remedy it" and its capacity to "produce results or responses to human rights violations"; a topic that has been analyzed by the Corte IDH since its earliest pronouncements, an example of which can be found in the Caso Velásquez Rodríguez. It notes that the analysis is situated at the level of the normative design of the remedy: the remedy must offer the possibility of raising the violation of a human right as its subject matter and of achieving adequate remedies in response to those violations.
It adds that the Comisión Interamericana has also outlined standards aimed at characterizing a remedy as effective and, in this regard, in its merits report in the Caso Loren Riebe y otros, the Commission established that in order to determine the simplicity, speed, 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 had to be taken into account: a) the capacity of the remedy to determine the existence of violations of fundamental rights; b) the capacity to remedy them; c) the capacity to repair the harm caused and to allow the punishment of those responsible. It highlights that therein the CIDH concluded that there had been a violation of Art. 25 of the CADH, taking into account, among other matters, the scope of judicial review of the administrative expulsion decision. For its part, in other cases the Comisión IDH has analyzed this matter by also making reference to the applicability of Art. 8 of the CADH.
It adds that regarding the second aspect of the "effective" remedy, reference is made to the empirical type, which concerns the political and institutional conditions that allow a legally established remedy to be capable of "fulfilling its purpose" or "achieving the result for which it was conceived." In this second sense, a remedy is not effective when it is "illusory," either because it is too burdensome for the victim, or because the State has not ensured its proper application by its judicial authorities. Thus, the Corte IDH has repeatedly emphasized that: "Those remedies that, due to the general conditions of the country or even the particular circumstances of a given case, prove to be illusory cannot be considered effective. This may occur, for example, when their futility has been demonstrated in practice, when the Judiciary lacks the necessary independence to decide impartially, or when the means to enforce its decisions are lacking; for any other situation that constitutes a pattern of denial of justice, such as when there is an unjustified delay in the decision; or, for any reason, the alleged victim is not permitted access to the judicial remedy." It adds that regarding independence in adjudication, it must be recalled that a Justice of the Sala Constitucional has been subject to a motion for recusal and has openly stated that she would not depart from what the Asamblea Legislativa decided with respect to the reform of the pension and retirement system (régimen de pensiones y jubilaciones) of the Poder Judicial.
It indicates that in another case, the petitioners alleged the violation of the right to judicial guarantees (garantías judiciales) and to effective judicial protection (tutela judicial efectiva) due to the violation of the reasonable time limit (plazo razonable) for adopting a decision on the merits in the amparo proceedings 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 the present case there has been a wait of more than two years without resolution of the challenge that has been submitted to the Sala. It states that social rights undoubtedly have a collective dimension and, for this reason, their violation typically manifests as harm to more or less defined groups or collectives, which is precisely the case under study — a collective of workers (personas trabajadoras) of the Poder Judicial de Costa Rica.
In this way, it indicates that an essential component of the justiciability of rights is the availability of this type of action representing public or collective interests, whatever its procedural design, encompassed within Art. 25 of the Convención Americana, and intimately linked to the right of association and participation in public affairs, as these are the type of judicial remedies that are suitable and effective 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 (litigio colectivo) and, in particular, on the scope of the State obligation to ensure this type of claims procedure in national judicial systems. It argues that the situations mentioned above necessarily require the design and implementation of collective litigation mechanisms, which are those cases in which the ownership of a right belongs to a plural or collective subject, or in which the right necessarily requires collective forms of exercise; cases in which, in order to claim judicial protection, someone must be able to invoke group or collective harm, and not only individual harm.
Similarly, it is necessary that someone be in a position to seek a collective remedy, and not merely one limited to individual scope. It argues that in this particular matter, the unconstitutionality actions (acciones de inconstitucionalidad) filed by different trade unions (sindicatos) and professional associations (gremios) of the Poder Judicial are precisely such actions, exercised in the protection of their economic and social rights from a collective perspective, hence the need for this matter to be resolved in order to subsequently decide the legal merits of their rights, which have been violated by the reform being challenged. It concludes that Art. 25 of the Convención Americana establishes the State's duty to create a simple, prompt, 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 that obligation in matters of economic, social, and cultural rights, and despite the vast jurisprudence of the Inter-American System, the Sala Constitucional of the Poder Judicial de Costa Rica has disregarded it and has shelved the various unconstitutionality actions filed by trade unions and different associations of workers of the Poder Judicial against the illegitimate reform of the pension and retirement fund (fondo de pensiones y jubilaciones) of the Poder Judicial.
It adds that both the Comisión IDH and the Corte IDH have identified the need to provide procedural measures that allow for the immediate protection of social rights, even though the substance of the matter may ultimately require more prolonged analysis over time. The Comisión Interamericana has identified certain essential characteristics that these measures must possess in order to be considered suitable in light of the Convención Americana. Thus, it has posited that they must be simple, urgent, informal, accessible, and handled by independent bodies; that they must be capable of being processed both as individual remedies and as collective precautionary actions (acciones cautelares colectivas) in order to safeguard the rights of a defined or definable group; that broad standing (legitimación activa) must be guaranteed with respect to them; that the possibility of accessing national judicial bodies must be ensured in cases where there is fear of partiality in the conduct of local justice; and, finally, that the application of these protective measures must be provided for in consultation with those affected.
However, it notes that the Sala Constitucional has disregarded the requests for precautionary measures (medida cautelar) that the trade unions and associations of the Poder Judicial have filed against the application of the illegitimate reform of the pension and retirement fund of the Poder Judicial. It states that in recent times, the Corte IDH and the Comisión IDH have recognized the need to protect economic, social, and cultural rights, not only in their individual dimension, but also in their collective dimension. Within this framework, the Inter-American Human Rights System has begun to outline standards on judicial protection mechanisms aimed at guaranteeing collective litigation and, in particular, in relation to the scope of the States' obligation to provide this type of claims procedure; however, it indicates that the Sala Constitucional of the Poder Judicial in Costa Rica has disregarded this possibility, rendering nugatory the right of those concerned to have the filed unconstitutionality actions resolved within a reasonable time, despite the fact that the Inter-American System has undergone a clear evolution in this area, having expressly recognized the collective dimension of certain rights and the need to design and implement legal mechanisms aimed at fully guaranteeing that dimension.
In this way, it indicates that the broader scope that the organs of the Inter-American Human Rights System have recognized for the guarantee set forth in Art. 25 of the CADH becomes evident, so as to encompass therein the effective judicial protection of collective rights. It indicates that the jurisprudence of the Inter-American Human Rights System is firm and settled in demanding the effective observance of the right to effective judicial protection of economic, social, and cultural rights. In this respect, for example, the Corte IDH has recognized the need for States to design and implement effective legal mechanisms of recourse for the protection of essential social rights, such as workers' rights; mechanisms that go beyond merely offering the possibility of appeal, extending to effective resolution, its reasoning, and its justification. At the same time, it indicates that the CIDH has determined that the right to effective judicial protection requires compliance with judicial precautionary decisions, such that non-compliance with these measures may also entail a violation of this right.
It adds that the Comisión Interamericana has also outlined a relevant standard in relation to the limits of the action that can be required of victims in order to achieve compliance with judicial orders issued in their favor; it has thus stated that States must guarantee the enforcement of such judicial decisions immediately and without requiring the affected parties to initiate additional compliance actions, whether in the criminal, administrative, or any other sphere. It adds that the importance of resolving matters brought before the Constitutional Tribunal is, in this case, of such magnitude that even the Corte IDH has considered that, in order to speak of "effective judicial remedies," it is not sufficient for proceedings to yield final decisions protecting 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 matters of guarantee actions, given the particular nature of the rights protected, the State must comply with them in the shortest possible time, adopting all necessary measures to that end.
At this point, the party argues that the Court is emphatic in affirming that budgetary rules cannot justify an extended delay in complying with judicial decisions that protect human rights; however, the party contends that in this particular case, not even the stage of effective judicial resolution has been reached, such that human rights are being openly violated, as has already been extensively argued in the unconstitutionality actions filed. The party concludes by respectfully requesting that the unconstitutionality actions accumulated in expediente 18-007819-0007-CO be resolved, so as to prevent further infringement of the human rights belonging to judicial officers, as well as to persons who are already retired or receiving pension benefits.
He adds that, in light of the jurisprudential line the Sala has consistently upheld, confirmed even by recent judgments, on September 7, 2018 they filed a constitutional challenge against Ley 9544, published in the Diario Oficial La Gaceta No. 89 of May 22, 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." He states that from that point on, they demonstrated through argument that the prerequisites developed by the Sala are not met, in the sense that no technical study exists recommending the establishment of the special, solidarity, and redistributive contribution as a means of improving the actuarial condition of the regime over the long term; likewise, there is no technical basis determining the percentages, or whether those percentages or the established parameters are reasonable and proportionate as constitutional parameters, or whether the application of that contribution becomes confiscatory.
He states that, in accordance with the aforementioned judgments and with a clear understanding that — as the Sala held — it falls upon the State to prove that technical studies exist to support the establishment of the cap and the corresponding special, solidarity, and redistributive contribution; nonetheless, in the interest of expediency, procedural economy, and prompt and effective justice, he informs that some of the petitioners requested Dr. José Antonio Cordero Peña, Director of the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (IICE) — the body responsible for the actuarial study prepared at the request of the Poder Judicial with a reference date of December 31, 2015, which served as the basis for processing draft Bill 19.922, which resulted in Ley 9544 — to report whether the documents comprising the final products of that actuarial study contain the studies, analyses, formulas, projections, and tables, among other elements, supporting the establishment of a cap and a special, solidarity, and redistributive contribution in accordance with the principles of reasonableness and proportionality; the cap and contribution that were ultimately incorporated into Ley 9544, whose constitutionality they are challenging.
He states that official letters signed by Alfredo Jones León, who made the request to IICE, are submitted, digitally signed and duly certified. He adds that Dr. Cordero Peña, in official letter No. IICE-182-2020 dated October 5, 2020, provided his response to the letter sent, and that a reading of that document leads to the conclusion that IICE did not conduct the actuarial-technical analyses that would have technically supported the special, solidarity, and redistributive contribution; therefore, in light of the principles of reasonableness and proportionality, the establishment of the cap and the special, solidarity, and redistributive contribution incorporated in Ley 9544 lacks a technical foundation. He adds that, upon concluding that certain aspects of the response needed to be elaborated upon for a better understanding of the questions posed, Alfredo Jones León (one of the petitioners) sent IICE a new letter on October 7, 2020 requesting an expansion of the initial response received.
He adds that on October 28, 2020, official letter No. IICE-209-2020 was received from Dr. Cordero Peña, and that from a detailed analysis of the content of that communication, the following conclusions are drawn for the Sala's consideration:
The party adds that, based on the foregoing and on the two communications received from IICE, it reiterates that IICE unquestionably acknowledges that it did not develop the necessary technical studies that would have served the Asamblea Legislativa as grounds for the cap and the special, solidarity, and redistributive contribution now challenged as unconstitutional; furthermore, the party notes that IICE acknowledges that it never technically recommended to any body of the Asamblea Legislativa the establishment of a cap or the brackets of the special, solidarity, and redistributive contribution that were ultimately incorporated into Ley 9544. The party argues that, therefore, since that law lacks technical studies and is not grounded in the principles of reasonableness and proportionality, as developed by the Sala in its case law, the law is unconstitutional. The party adds that, as evidenced by an attached document signed by MBA Miguel Ovares Chavarría, Head of the Financial and Accounting Macro-Process (Macro Proceso Financiero Contable) of the Poder Judicial, dated October 22, 2020, the Fondo de Jubilaciones y Pensiones del Poder Judicial holds, as of September 30, 2020, net assets (patrimonio) of ¢613,076,510,586 (six hundred thirteen thousand seventy-six million five hundred ten thousand five hundred eighty-six thousand colones), against which retirement and pension allocations are met on a biweekly basis.
The party indicates that the situation of the Fund is entirely different from that of other retirement and pension systems charged to the national budget, which do not have a dedicated fund to meet their obligations, since the amounts corresponding to the allocations they must pay month by month are budgeted annually in the national budget. The party notes that, on the other hand, and as recorded in the case file, in a brief submitted to the Sala on May 14, 2020, they requested, in accordance with the arguments set forth, the unconstitutionality by connection (inconstitucionalidad por conexidad) of Articles 1, 2 subparagraph d), 4 subparagraph b), 5, and 7 of Ley 9796, which reduced the cap on judicial retirement benefits and pensions from 10 to 6 times the lowest salary paid in the Poder Judicial—a new cap used to calculate the special, solidarity, and redistributive contribution as of June 20, 2020.
The party argues that, in turn, by brief of June 2, 2020, they filed the corresponding active intervention (coadyuvancia activa) in the constitutional challenge (acción de inconstitucionalidad) filed by the Cooperativa de Ahorro y Crédito de los Servidores Judiciales R.L. against Articles 1, 2 subparagraph d), 4 subparagraph b), 5, and 7 of the Act to Redesign and Redistribute the Resources of the Special, Solidarity, and Redistributive Contribution—Ley número 9796 of December 5, 2019, published in the Diario Oficial La Gaceta N° 243 of December 20, 2019, processed under Expediente N° 20-007715-0007-CO. The party states that, with respect to the relevant portions of the aforementioned brief, reference should be made to the section entitled "DE LA INCONSTITUCIONALIDAD POR LA FORMA," in which its members set forth the reasons why they consider Ley 9796 to be unconstitutional for lacking actuarial technical studies and for failing to comply with the principles of reasonableness and proportionality; on the contrary, the party considers that the evidence it provides—a certification signed by MBA Miguel Ovares Chavarría, Head of the Financial and Accounting Macro-Process of the Poder Judicial—demonstrates that the Fund is solid, belongs to the judicial system, is tripartite, and is not charged exclusively to the national budget.
The party contends that, for these reasons, it reiterates the claim advanced by its members seeking a declaration of unconstitutionality of the cap and the special, solidarity, and redistributive contribution affecting retirees and pensioners of the Fondo de Jubilaciones y Pensiones Judiciales, which was incorporated into Ley 9544 and Ley 9796.
"(...) In light of all of the foregoing, it follows that the Sala did not observe, in this case, the provisions and principles that must be applied with respect to older adults who access the justice administration system, since neither from the report submitted by the Presidency of this Sala, nor from the procedural history (iter procesal) followed by the action and the writ of amparo (amparo) linked to it, is it possible to infer their implementation in the matter at hand. On the contrary, what can be concluded is that both proceedings were handled in a manner similar to those the Sala normally adjudicates, when in fact, as stated earlier, when the parties are older adults, as with any population in a state of vulnerability, differentiated treatment is required. The foregoing is observed in that this Sala took more than three years to resolve the constitutional challenge to which the petitioner's amparo was linked, the latter of which has still not been resolved, while the Sala Constitucional did not apply the relevant rules for vulnerable populations, specifically for older adults in the specific case. The delay has occurred both in the resolution of the constitutional challenge, which has already been decided on the merits, and in the resolution of the petitioner's initial amparo, which still awaits its final ruling" (Sala Constitucional de la Corte Suprema de Justicia, resolución número 20309-2020 de las 9 horas del 22 de octubre de 2020).
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, Summary Compendium No. 4 appears, in which the 4 regulatory frameworks developed by the IICE are described; in that compendium it can be observed that frameworks IICE_3 and IICE_4 establish a 2-year difference in favor of women with respect to the minimum age requirements for retirement by service, such that both framework IICE_3 and framework IICE_4 proved to be actuarially solvent. He adds that the same Summary Compendium No. 4 establishes, for framework IICE_1, a 2-year difference in favor of women in the requirements for ordinary old-age retirement and age-based retirement; 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 (Convenio Específico) entered into between the Poder Judicial and the Universidad de Costa Rica in February 2016.
He states that the First Clause of the Specific Agreement identifies the members of the IICE team, the executive team (the Poder Judicial's counterpart), and the technical-actuarial team (the latter designated by the Poder Judicial for the purpose of reviewing the documentation delivered by the IICE). For its part, he contends that the executive team was composed of Poder Judicial employees and also included representation from the guilds of that Branch. He adds that all products delivered by the IICE to the Poder Judicial were approved by 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 preparing those products, were duly approved by the teams designated by the Poder Judicial to oversee the project, in strict compliance with the terms of the Specific Agreement entered into between the Poder Judicial and the Universidad de Costa Rica.
The ruling is drafted by Magistrate Hernández López and Magistrates Castillo Víquez and Araya García, as indicated in each considerando according to the majority or minority criteria of this judgment; and,
Considering:
PRELIMINARY AND ADMISSIBILITY MATTERS.
I.Opinion authored by Justice Hernández López. On the composition of the Court. — Nine additional actions for unconstitutionality (acciones de inconstitucionalidad) were consolidated with action for unconstitutionality number 18-007819-0007-CO (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); likewise, several interventions (coadyuvancias) were admitted, bringing the total number of case files to ten. During the processing of the case, various grounds for disqualification (causales de inhibitoria) arose, raised both by the sitting Justices and by the alternate Justices — the majority being current or retired employees of the Judicial Branch — as well as several requests for challenge (recusación). All such motions were duly processed and resolved by the Presidency of the Sala Constitucional, as required by law, and the Court was ultimately constituted to hear this matter as follows:
Regarding the third-party interventions (coadyuvancias) submitted. — By resolution of the Presidency of the Chamber dated 9:31 a.m. on May 10, 2019, the third-party interventions submitted to the Court Clerk's Office between April 1 and 12, 2019 — within the period established by law — were admitted in favor of the following persons who so requested: CRISIAM DIONISIA WONG VEGA, national identity card (cédula de identidad) 0107420019, ENRIQUETA ROJAS AGUILAR, national identity card 0502230794, LIGIA VANESSA VÍQUEZ GÓMEZ, national identity card 0108240057, ZULAY MARJORIE CAMPOS HERNÁNDEZ, national identity card 0108360391, LUIS ROBERTO MADRIGAL ZAMORA, national identity card 0107230460 in his capacity as SECRETARY GENERAL OF THE PUBLIC DEFENDER'S UNION (SINDICATO DE LA DEFENSA PÚBLICA) and KAROL MARÍA MONGE MOLINA, national identity card 0110710254 in her capacity as special judicial attorney-in-fact (apoderada especial judicial) of ADALGISA GUILLEN FLORES, holder of national identity card 5-0210-0201, ADOLFO SOTO MUÑOZ, holder of national identity card number 3-0300-0050, ADRIÁN ARROYO ACOSTA, holder of national identity card 1-0903-0887, ADRIÁN COTO PEREIRA, holder of national identity card 3-0307-0351, ADRIÁN RODOLFO BARQUERO MONGE, holder of national identity card 3-0339-0441, ADRIANA ÁLVAREZ BRICEÑO, holder of national identity card 1-0639-0343, ADRIANA SOTO GONZÁLEZ, holder of national identity card 1-0844-0124, ADRIANA STELLER HERNÁNDEZ, holder of national identity card 1-0803-0253, ALBA BARRIOS SALDAÑA, holder of national identity card 7-0103-0498, ALBERTH SOLANO ABARCA, holder of national identity card 1-0762-0577, ALBERTO MORA MORA, holder of national identity card 1-1023-0353, ALCIONI VÁSQUEZ RETANA, holder of national identity card 1-0643-0891, ALEJANDRA PÉREZ CORDERO, holder of national identity card 1-1030-0994, ALEJANDRO ALCIONE CASTRO LAO, holder of national identity card 1-0836-0068, ALEJANDRO FONSECA ARGUEDAS, holder of national identity card 1-0771-0399, ALEJANDRO SOLANO ROJAS, holder of national identity card 1-0519-0729, ALEXANDER MIGUEL FONSECA PRADO, national identity card 1-0779-0738, ALEXANDER PICADO GAMBOA, holder of national identity card 1-0935-0908, ALEXANDER TENORIO CAMPOS, holder of national identity card 5-0202-0075, ALEXANDER VIACHICA ESPINOZA, holder of national identity card 1-0777-0115, ALEXANDRA MADRÍZ SEQUEIRA, holder of national identity card 1-0870-0450, ALEXANDRA MORA STELLER, holder of national identity card 2-0485-0404, ALEXANDRA VILLEGAS VELÁZQUEZ, holder of national identity card 5-0260-0591, ALEXEI SALVADOR GUZMAN ORTIZ, holder of national identity card 7-0103-0253, ALEYDA MOJICA MARÍN, holder of national identity card 6-0229-0409, ALFREDO SALAZAR VENEGAS, holder of national identity card 1-0867-0065, ALICIA MELÉNDEZ LEIVA, holder of national identity card 5-0238-0070, ALLAN CRUZ VILLALOBOS, holder of national identity card 1-1007-0363, ALLAN OVIDIO LEÓN VILLALOBOS, holder of national identity card 2-0443-0555, ALMA CUNNINGHAM ARANA, holder of national identity card 7-0066-0882, ALONSO ROMERO FALLAS, holder of national identity card 1-0860-0327, ÁLVARO ÁLVAREZ GUTIÉRREZ, holder of national identity card 5-0234-0995, ÁLVARO ENRIQUE GONZÁLEZ QUIRÓS, holder of national identity card 3-0334-0081, ÁLVARO JUSTO QUIRÓS SÁNCHEZ, holder of national identity card 1-0669-0209, ÁLVARO ORTUÑO MÉNDEZ, holder of national identity card 1-0664-0927, ANA CATALINA FERNÁNDEZ BADILLA, holder of national identity card 1-0828-0553, ANA CRISTINA LIZANO RODRÍGUEZ, holder of national identity card 1-0693-0522, ANA ISABEL MOYA CHACÓN, holder of national identity card 7-0122-0544, ANA MARCELA VILLALOBOS GUEVARA, holder of national identity card 4-0141-0837, ANA PATRICIA LEIVA JUAREZ, holder of national identity card 5-0248-0978, ANA PATRICIA ROBLES MARTÍNEZ, holder of national identity card 7-0102-0421, ANA RUTH ORTEGA CHAVARRÍA, holder of national identity card 7-0092-0734, ANA SHIRLENIA BRICEÑO CASTRO, holder of national identity card 1-0745-0116, ANA SONIA FUENTES GÓMEZ, holder of national identity card 8-0067-0806, ANA YANCY HERNÁNDEZ OREAMUNO, holder of national identity card 2-0496-0746, ANAIS CAROLINA BOLAÑOS ZELEDÓN, holder of national identity card 1-0902-0620, ANAYANCI RODRÍGUEZ QUESADA, holder of national identity card 1-0734-0966, ANDREA SOTO DÍAZ, holder of national identity card 4-0161-0797, ANDRÉS MÉNDEZ BONILLA, holder of national identity card 7-0101-0014, ANDRÉS MUÑOZ MIRANDA, holder of national identity card 1-0779-0938, ÁNGELA ROBLES SIBAJA, holder of national identity card 7-0078-0730, ANTHONY FERNANDO SIBAJA HERNÁNDEZ, holder of national identity card 7-0107-0369, ARMANDO AGÜERO ARAYA, holder of national identity card 6-0212-0007, ARMANDO DE LOS ÁNGELES JIMÉNEZ, holder of national identity card 3-0325-0085, ARMANDO EMILIO JIMÉNEZ VARGAS, holder of national identity card 6-0233-0378, ARSENIO MORA BARBOZA, holder of national identity card 1-0850-0664, ARTURO FAERRON MONTOYA, holder of national identity card 5-0247-0765, AURA YANES QUINTANA, holder of national identity card 6-0209-0198, AUREA BARBOZA CASTILLO, holder of national identity card 5-0233-0938, BERNY VALVERDE JIMÉNEZ, holder of national identity card 1-0897-0729, BERTA LIDIETH ARAYA PORRAS, holder of national identity card 5-0217-0410, BLANCA LUZ JIMÉNEZ CHAVES, holder of national identity card 1-0747-0521, BONNIE PATRICIA TORRES ROSALES, holder of national identity card 1-0750-0985, BRENDA ALPÍZAR JARA, holder of national identity card 1-0752-0082, CARLOS ABRAHAM CAMPBELL, holder of national identity card 7-0098-0511, CARLOS AGUILAR ORTIZ, holder of national identity card 1-0706-0717, CARLOS ALBERTO CHACÓN CHINCHILLA, holder of national identity card 1-0865-0136, CARLOS ALBERTO QUESADA HERNÁNDEZ, holder of national identity card 7-0077-0276, CARLOS ARNOLDO BERMÚDEZ AGUILAR, holder of national identity card 1-0915-0817, CARLOS BERMÚDEZ CHAVES, holder of national identity card 1-0880-0378, CARLOS ENRIQUE TORRES ACUÑA, holder of national identity card 9-0079-0280, CARLOS FRANCISCO MUÑOZ VAGLIO, holder of national identity card 1-0748-0121, CARLOS FALLAS SOLÍS, holder of national identity card 1-0851-0582, CARLOS GONZÁLEZ MARTÍNEZ, holder of national identity card 3-0279-0596, CARLOS HUMBERTO HERRERA SOLÍS, holder of national identity card 1-0837-0484, CARLOS LUIS CORRALES JIMÉNEZ, holder of national identity card 2-0428-0157, CARLOS LUIS FRUTOS VÁSQUEZ, holder of national identity card 6-0157-0030, CARLOS LUIS GARCÍA APARICIO, holder of national identity card 1-0860-0752, CARLOS LUIS GUTIÉRREZ BARQUERO, holder of national identity card 6-0164-0434, CARLOS LUÍS VÁSQUEZ MEDINA, holder of national identity card 7-0086-0146, CARLOS MONGE NAVARRO, holder of national identity card 6-0251-0166, CARLOS PORRAS MORERA, holder of national identity card 5-0247-0389, CARLOS VENEGAS AVILES, holder of national identity card 1-0899-0725, CARLOS ALBERTO PÁEZ RODRÍGUEZ, holder of national identity card 1-0830-0244, CARLOS MAURICIO VALERIO ARAYA, holder of national identity card 1-0903-553, CARMELINA TAYLOR TAYLOR, holder of national identity card 7-0068-0562, CAROLINA CHACÓN MEJÍA, holder of national identity card 1-0741-0425, CATALINA ESPINOZA SÁENZ, holder of national identity card 1-0996-0061, CEFERINO MUÑOZ GONZÁLEZ, holder of national identity card 6-0198-0289, CINTHIA MAGALY VEGA CÉSPEDES, holder of national identity card 4-0161-0385, CHIREY TAPIA MARTINEZ, holder of national identity card 1-0912-0363, CRISTIAN CORRALES RODRÍGUEZ, holder of national identity card 2-0473-0323, CRISTIAN GÓMEZ SOLÍS, holder of national identity card 3-0333-0388, CRUZ PORRAS BOLAÑOS, holder of national identity card 5-0213-0606, DANIA ARIAS SANDOVAL, holder of national identity card 1-0868-0351, DANIEL GERARDO GÓMEZ MURILLO, holder of national identity card 2-0448-0498, DANIEL RODRÍGUEZ SALGUERO, holder of national identity card 1-0820-0013, DÉBORA RIVERA ROMERO, holder of national identity card 1-0702-0210, DELIA BAYLEY BLAKE, holder of national identity card 7-0106-0462, DENIA ZÚÑIGA ROSALES, holder of national identity card 5-0255-0075, DENNIS MADRIGAL QUESADA, holder of national identity card 1-0772-0406, DERRIL VILLEGAS SALAZAR, holder of national identity card 1-0723-0961, DEYKELL RENETT GRAHAM GORDON, holder of national identity card 1-0844-0663, DIDIER JOSÉ MONTEALEGRE BEJARANO, holder of national identity card 1-0998-0884, DIEGO RODRÍGUEZ ZUMBADO, holder of national identity card 4-0145-0378, DINORAH ÁLVAREZ ACOSTA, holder of national identity card 2-0403-0367, DINORAH FLORES VILLALOBOS, holder of national identity card 1-0762-0614, DIXON LI MORALES, holder of national identity card 1-0839-0369, DONALDO BERMÚDEZ RODRÍGUEZ, holder of national identity card 6-0260-553, DONY DANIEL SOLANO ARAYA, 6-0270-0431, DORIS ROJAS GUZMÁN, holder of national identity card 1-0760-0176, DYALA LINKIMER VALVERDE, holder of national identity card 2-0394-0312, EDDIE JOSÉ DÍAZ SOLÓRZANO, holder of national identity card 5-0202-0075, EDDY JAVIER RODA ABARCA, holder of national identity card 1-0607-0953, EDGAR GERARDO MORA ROMERO, holder of national identity card 5-0294-0965, EDUARDO BRICEÑO CABALCETA, holder of national identity card 5-0230-0488, EDUARDO ESQUIVEL BRICEÑO, holder of national identity card 1-738-0392, EDUARDO FALLAS BRENES, holder of national identity card 1-0588-0355, EDUARDO GÓMEZ VARGAS, holder of national identity card 4-0125-0724, EDUARDO JOSÉ MACÍAS ALVARENGA, holder of national identity card 8-0066-0926, EDUARDO MOYA ROJAS, holder of national identity card 1-0894-0903, EDWARD RODRÍGUEZ MURILLO, holder of national identity card 3-0331-0313, EDWARD RODRÍGUEZ GONZÁLEZ, holder of national identity card 2-0484-0865, EDWIN HERRERA CAMBRONERO, holder of national identity card 1-0578-0466, EDWIN MATA ELIZONDO, holder of national identity card 1-0801-0067, EIBOR PANIAGUA MARÍN, holder of national identity card 3-0323-0494, EIDY ARAYA DÍAZ, holder of national identity card 7-0080-0880, ELIAS APU VARGAS, holder of national identity card 7-0088-0345, ELISANDRO TREJOS CHÁVES, holder of national identity card 1-0871-0722, ELIZABETH BOLAÑOS MENA, holder of national identity card 2-0409-0102, ELLEN VILLEGAS HERNÁNDEZ, holder of national identity card 2-0505-0891, ELMER ORTIZ OBANDO, holder of national identity card 2-0513-0201, ELPIDIO CALDERÓN CHAVES, holder of national identity card 6-0211-0169, ELVÍN VARGAS SALAZAR, holder of national identity card 6-0164-0923, EMILCE MILEIDY GARCÍA SOLANO, holder of national identity card 1-0834-0997, EMILIO GERARDO SEGURA CORRALES, holder of national identity card 1-0905-0693, EMMA LÓPEZ RAMÍREZ, holder of national identity card 6-0300-0418, ERICK ANTONIO MORA LEÍVA, holder of national identity card 1-0926-0332, ERICK AZOFEIFA FERNÁNDEZ, holder of national identity card 1-0990-0489, ERICK CASTRO ZAMORA, holder of national identity card 1-0726-0938, ERICK DOUGLAS CHAVES CÉSPEDES, holder of national identity card 1-0617-0454, ERICK LEWIS HERNÁNDEZ, holder of national identity card 4-0157-0803, ERICK RODRÍGUEZ MORA, holder of national identity card 1-0958-0717, ERICKA MÉNDEZ JIMÉNEZ, holder of national identity card 1-0887-0376, ERICKA OCAMPO RODRÍGUEZ, holder of national identity card 1-0921-0625, ERIKA LEIVA DÍAZ, holder of national identity card 1-0905-0024, ERIKA MORALES CUBILLO, holder of national identity card 1-0885-0266, ERIKA VILLALOBOS SOLANO, holder of national identity card 2-0481-0476, ERNESTO ALONSO CALVO OLSEN, holder of national identity card 3-0315-0544, ESTEBAN BENAVIDES PRENDAS, holder of national identity card 4-0162-0401, ESTERCITA CONCEPCIÓN QUIEL, holder of national identity card 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 NÚÑEZ 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 SANDÚ 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 national identity card 1-0646-0777, KATTIA MORALES NAVARRO, holder of national identity card 1-0801-0141, KATTIA SABORÍO CHAVERRI, holder of national identity card 2-0453-0781, KATTIA CECILIA MARÍN MIRANDA, holder of national identity card 1-0784-0554, KATTIA VARGAS SALAS, holder of national identity card 1-0793-0718, KATTYA MERCEDES MONGE PACHECO, holder of national identity card 3-0337-0036, KRISIA FUMERO ARAYA, holder of national identity card 1-0324-0912, LAURA PATRICIA CHACÓN MORA, holder of national identity card 1-0708-0472, LEDA GINETTE SOLANO BARRA, holder of national identity card 6-0166-0755, LEONARDO BRENES GÓMEZ, holder of national identity card 1-0921-0927, LIDIA ISABEL VÁSQUEZ VALLEJOS, holder of national identity card 5-0265-0923, LIGIA CASTILLO CASTILLO, holder of national identity card 1-0344-0861, LILLIAM MARÍA GARITA SHARPE, holder of national identity card 7-0074-0805, LILLIANA ROJAS MORA, holder of national identity card 7-0111-0674, LILLIANA SABORÍO SABORÍO, holder of national identity card 2-0436-0115, LISBETH SÁNCHEZ GONZÁLEZ, holder of national identity card 2-0497-0272, LIZETH BARAHONA CASTILLO, holder of national identity card 7-0097-0842, LIZETH ROGERS ROGERS, holder of national identity card 7-0101-0960, LIZETTE BRENES ARCE, holder of national identity card 1-0715-0167, LIZZETH CRUZ TORRES, holder of national identity card 1-0615-0237, LORELEY CERDAS ÁVILA, holder of national identity card 1-0723-0311, LORENA RODRÍGUEZ SALAS, holder of national identity card 1-0744-0409, LOURDES ANGULO JIMÉNEZ, holder of national identity card 5-0257-0944, LUCRECIA ROJAS ROJAS, holder of national identity card 3-0272-0321, LUIS ÁLVAREZ VINDAS, holder of national identity card 2-0417-0295, LUIS ÁNGEL MATAMOROS ARIAS, holder of national identity card 6-0245-0461, LUIS ARMANDO CASTILLO FALLAS, holder of national identity card 1-0793-0256, LUÍS DIEGO CHAVARRÍA GARCÍA, holder of national identity card 1-0948-0118, LUIS DIEGO ZARATE MORALES, holder of national identity card 1-0993-0395, LUIS ENRIQUE ARROYO ACUÑA, holder of national identity card 1-0626-0336, LUIS ENRIQUE LEÓN RODRÍGUEZ, holder of national identity card 5-0313-0263, LUIS FALLAS PIVA, holder of national identity card 2-0438-0896, LUIS FERNANDO PICADO CHINCHILLA, holder of national identity card 1-0884-0317, LUIS FERNANDO RODRÍGUEZ ARTAVIA, holder of national identity card 2-0467-0324, LUIS FERNANDO SOLÍS VILLEGAS, holder of national identity card 1-0576-0916, LUIS FERNANDO SUÁREZ JIMÉNEZ, holder of national identity card 1-0738-0178, LUÍS GERARDO MARTÍNEZ GARCÍA, holder of national identity card 5-0241-0786, LUIS GERARDO ZÚÑIGA BALTODANO, holder of national identity card 5-0237-0826, LUIS GUILLERMO ARAYA ULATE, holder of national identity card 1-0784-0409, LUIS GUILLERMO COTO QUESADA, holder of national identity card 3-0242-0147, LUÍS GUILLERMO VÁSQUEZ UREÑA, holder of national identity card 1-0604-0082, LUIS JAVIER OBANDO MATARRITA, holder of national identity card 5-0240-0795, LUÍS MANUEL RAMÍREZ SOLÍS, holder of national identity card number 2-0435-0895, LUIS MATAMOROS CARVAJAL, holder of national identity card 1-0734-0692, LUIS RICARDO GONZÁLEZ ARROYO, holder of national identity card 1-0661-0772, LUIS RODRIGO CAMPOS GAMBOA, holder of national identity card 1-0802-0480, LUIS RODRIGO GUTIÉRREZ ARGUEDAS, holder of national identity card 1-0940-0199, LUIS RODRÍGUEZ CRUZ, holder of national identity card 7-0090-0234, LUIS VÁSQUEZ VALLEJOS, holder of national identity card 5-0247-0313, MAGALIE VARGAS JOHNSON, holder of national identity card 7-0090-0188, MALCO MONTOYA RAMÍREZ, holder of national identity card 5-0262-0199, MANFRED QUESADA SÁNCHEZ, holder of national identity card 6-0268-0546, MANUEL ALEJANDRO TORRES CASTRO, holder of national identity card 1-0852-0324, MANUEL ENRIQUE MATAMOROS QUIRÓS, holder of national identity card 1-0708-0291, MANUEL ERNESTO DURÁN CASTRO, holder of national identity card 1-0742-0362, MANUEL HERNÁNDEZ CASANOVA, holder of national identity card 6-0231-0761, MANUEL OREAMUNO ZEPEDA, holder of national identity card 1-0859-0237, MANRIQUE MORALES MONTIEL, holder of national identity card 6-0271-0224, MARCELA ZUÑIGA JIMÉNEZ, holder of national identity card 7-0107-0210, MARCO ANTONIO BRENES MADRIZ, holder of national identity card 1-0518-0695, MARCO ANTONIO CARRIÓN HERNÁNDEZ, holder of national identity card 1-0817-0932, MARCO ANTONIO HERRERA CHARRAUN, holder of national identity card 1-0870-0028, MARCO BADILLA BERMÚDEZ, holder of national identity card 1-0936-0198, MARCO VINICIO AGUILAR VARGAS, holder of national identity card 3-0316-0545, MARCO VINICIO FUENTES SÁNCHEZ, holder of national identity card 1-0801-0273, MARCO VINICIO PORRAS MORALES, holder of national identity card 2-0429-0412, MARCO VINICIO RODRÍGUEZ ARAGÓN, holder of national identity card 2-0485-0423, MARCONY ARBUROLA VALVERDE, holder of national identity card 5-0246-0169, MARGARITA CERDAS VEGA, holder of national identity card 1-0887-0402, MARGARITA DE LOS ÁNGELES SANDÍ VELÁSQUEZ, holder of national identity card 7-0104-0953, MARÍA ALEXANDRA MUÑOZ RAMÍREZ, holder of national identity card 1-0968-0625, MARÍA AUXILIADORA SOTO RIVERA, holder of national identity card 1-0682-0047, MARÍA CONCEPCIÓN MORELLI COSENZA, holder of national identity card 1-0539-0560, MARÍA DE LA CRUZ ARROYO BRAVO, holder of national identity card 2-0430-0178, MARÍA DE LOS ÁNGELES ARIAS RODRÍGUEZ, holder of national identity card 1-0700-0492, MARÍA DE LOS ÁNGELES CHAVES VARGAS, holder of national identity card 1-0813-0615, MARÍA DE LOS ÁNGELES MOLINA ROJAS, holder of national identity card 5-0248-0031, MARÍA DEL CARMEN VÁSQUEZ VALLEJOS, holder of national identity card 5-0233-0377, MARÍA ELENA MOLINA SABORÍO, holder of national identity card 6- 0198-0246, MARÍA GABRIELA RODRÍGUEZ MORALES, holder of identity card (cédula de identidad) number 1-0612-0629, MARÍA ISABEL VILLEGAS NÚÑEZ, holder of identity card number 1-0655-0648, MARÍA JOSÉ CHAVES GUZMÁN, holder of identity card (cédula de identidad) number 1-0988-0846, MARÍA JUSTINA MARCHENA MARCHENA, holder of identity card number 5-0300-0346, MARÍA LUCRECIA CHAVES TORRES, holder of identity card number 3-0274-0283, MARÍA MARGOTH CASTRO SALAZAR, holder of identity card number 2-0454-0319, MARÍA MARITZA PIZARRO COREA, holder of identity card number 5-02825-0080, MARÍA TERESA BENAVIDES ARGUELLO, holder of identity card number 1-0715-0688, MARÍA VERÓNICA SALAZAR PIZARRO, holder of identity card number 1-0910-0807, MARÍA ANTONIETA HERRERA CHARRAUN, holder of identity card number 1-0820-0799, MARIANO RODRÍGUEZ FLORES, holder of identity card number 1-0971-0033, MARIBEL LÓPEZ BERMÚDEZ, holder of identity card number 7-0120-0576, MARIO ANGULO SALAZAR, holder of identity card number 1-1014-0171, MARIO MIRANDA DE LA O, holder of identity card number 5-0181-0083, MARITZA SEQUEIRA GUTIÉRREZ, holder of identity card number 5-0241-0198, MARITZA VALVERDE CORDERO, holder of identity card number 1-0710-0096, MARJORIE RAMÍREZ MADRIGAL, holder of identity card number 1-0604-0812, MARJORIE SANABRIA ROJAS, holder of identity card number 1-0688-0390, MARLEN JIMÉNEZ VILLEGAS, holder of identity card number 9-0073-0359, MARLENE ALPÍZAR LÓPEZ, holder of identity card number 1-0607-0484, MARLENY RAMÍREZ GAMBOA, holder of identity card number 4-0150-0093, MARLON ARIAS QUIRÓS, holder of identity card number 1-0120-0929, MARLYN CASTRO ALVARADO, holder of identity card number 9-0076-0447, MARLYN ELENA QUESADA QUESADA, holder of identity card number 1-0620-0077, MARTA LADY ZÚÑIGA SÁNCHEZ, holder of identity card number 1-0692-0673, MARTÍN HERNÁNDEZ SERRANO, holder of identity card number 1-0726-0721, MARVIN ÁNGULO DÍAZ, holder of identity card number 1-0623-0439, MARVIN DURÁN FERNÁNDEZ, holder of identity card number 3-0258-0595, MAUREEN BOLAÑOS ROJAS, holder of identity card number 1-0784-0631, MAUREEN SILES MATA, holder of identity card number 1-0839-0986, MAUREEN VANESSA QUIRÓS DÍAZ, holder of identity card number 1-1003-0126, MAUREEN IONG UREÑA, holder of identity card number 1-0815-0990, MAUREN VENEGAS MÉNDEZ, holder of identity card number 3-0339-0814, MAURICIO CORRALES JIMÉNEZ, holder of identity card number 2-0486-0653, MAURICIO JAVIER GÓMEZ MORA, holder of identity card number 1-0783-0049, MAURICIO RETANA GONZÁLEZ, holder of identity card number 1-0919-0111, MAX ALEXANDER LÓPEZ LÓPEZ, holder of identity card number 5-0256-0346, MAYELA HUTCHINSON HERNÁNDEZ, holder of identity card number 7-0087-0424, MAYRA GISELLA GONZÁLEZ SÁNCHEZ, holder of identity card number 1-0567-0766, MELANIA GÓMEZ ACUÑA, holder of identity card number 1-0828-0317, MEYKEL GERARDO MORERA ESQUIVEL, holder of identity card number 2-0530-0824, MICHAEL JIMÉNEZ UREÑA, holder of identity card number 1-0881-0296, MIGUEL ÁNGEL AZOFEIFA LIZANO, holder of identity card number 1-0747-0185, MIGUEL ÁNGEL MUÑOZ FLORES, holder of identity card number 7-0072-0678, MIGUEL OVARES CHAVARRÍA, holder of identity card number 1-1006-0605, MINOR ANCHÍA VARGAS, holder of identity card number 1-0739-0416, MINOR ANTONIO JIMÉNEZ VARGAS, holder of identity card number 6-0217-0066, MINOR MONGE CAMACHO, holder of identity card number 1-0676-0442, MINOR RIVAS TORRENTES, holder of identity card number 5-0223-0870, MINOR ZÚÑIGA GONZÁLEZ, holder of identity card number 3-0316-0212, MIXCY CHAVES MENDOZA, holder of identity card number 5-0309-0547, MOISÉS ALVARADO CHACÓN, holder of identity card number 1-0677-0216, NANCY VILLAVICENCIO ALEMÁN, holder of identity card number 5-0247-0582, NATACHA PIZARRO SOTO, holder of identity card number 6-0299-0052, NAZARETH GONZÁLEZ JIMÉNEZ, holder of identity card number 2-0443-0931, NELSON PÉREZ GUADAMUZ, holder of identity card number 1-0901-0416, NIDIA CASTRO CONEJO, holder of identity card number 1-0776-0726, NILLS ROJAS JARA, holder of identity card number 7-0102-0481, NUBIA AGUILAR CAMACHO, holder of identity card number 1-0582-0179, NURIA QUESADA ZAMORA, holder of identity card number 1-0619-0414, OLDEMAR CERDAS JUÁREZ, holder of identity card number 5-0252-0491, OLGA MURILLO ESPINOZA, holder of identity card number 2-0506-0619, OLGA MARTHA DEL CARMEN CHAVERRI CHAVES, holder of identity card number 1-0775-0339, OLIVIER CORRALES RODRÍGUEZ, holder of identity card number 2-0459-0740, OMAR BRENES CAMPOS, holder of identity card number 1-0889-0754, ORLANDO CASTRILLO VARGAS, holder of identity card number 1-0730-0335, OSBALDO ROSALES CHACÓN, holder of identity card number 1-0968-0138, OSCAR VINICIO ACOSTA ALFARO, holder of identity card number 4-0154-0227, OSVALDO LÓPEZ MORA, holder of identity card number 1-0926-0995, OSVALDO RODRÍGUEZ FLORES, holder of identity card number 6-0251-0813, OSWALDO JOSÉ VÁSQUEZ MADRIGAL, holder of identity card number 3-0301-0666, PABLO MACEO SOTO, holder of identity card number 7-0112-0501, PABLO ROLDÁN UMAÑA, holder of identity card number 1-0936-0930, PATRICIA AGUILAR RODRÍGUEZ, holder of identity card number 4-0161-0248, PATRICIA FALLAS MELÉNDEZ, holder of identity card number 1-0660-0570, PATRICIA RIVERA SANDOVAL, holder of identity card number 1-0782-0780, PATRICIA WO CHINO MOK, holder of identity card number 7-0094-0757, PAULO HUMBERTO MENA QUESADA, holder of identity card number 3-0331-0109, PEDRO ARCE GONZÁLEZ, holder of identity card number 2-0385-0931, PEDRO BONILLA PICADO, holder of identity card number 6-0160-0638, PEDRO JOSÉ MÉNDEZ AGUILAR, holder of identity card number 1-0650-0497, RAFAEL ALBERTO ARROYO LÓPEZ, holder of identity card number 2-0490-0234, RAFAEL DAVID VEGA SEGURA, holder of identity card number 1-0791-0159, RAFAEL NAVARRETE BRENES, holder of identity card number 7-0104-0669, RAFAEL UREÑA BARRIOS, holder of identity card number 1-0915-0224, RAMÓN ANGULO ROLDÁN, holder of identity card number 1-0554-0410, RANDALL RODRÍGUEZ ULATE, holder of identity card number 1-0783-0793, RANDY MARTÍN TREJOS MORALES, holder of identity card number 1-0758-0892, RAQUEL RAMÍREZ BONILLA, holder of identity card number 1-0997-0349, RASHID BEIRUTE GRANADOS, holder of identity card number 5-0243-0570, RAYVAN MC LEOD BÍGSBY, holder of identity card number 7-0132-0768, REBECA GUARDIA MORALES, holder of identity card number 1-0808-0973, REBECCA ARTAVIA BRUNO, holder of identity card number 1-0931-0222, RICARDO ALBERTO CASTILLO FERNÁNDEZ, holder of identity card number 1-0548-0407, RICARDO CALDERÓN VALVERDE, holder of identity card number 9-0098-0557, RICARDO GARCÍA MOLINA, holder of identity card number 4-0170-0018, RITA CASTRO ABARCA, holder of identity card number 2-0456-0750, RITA MARÍA QUIRÓS OBANDO, holder of identity card number 1-0758-0598, ROBERTO CARLOS PÉREZ VARGAS, holder of identity card number 1-0897-0374, ROBERTO HAMBELANT ZELEDÓN, holder of identity card number 7-0117-0903, ROBERTO LÓPEZ ESPINOZA, holder of identity card number 1-0813-0303, ROCÍO PICADO VARGAS, holder of identity card number 3-0299-0739, RODOLFO GONZÁLEZ FERNÁNDEZ, holder of identity card number 1-0618-0478, RODOLFO JESÚS OBANDO FAJARDO, holder of identity card number 5-0235-9378, RODRIGO CAMPOS ESQUIVEL, holder of identity card number 1-0706-0332, RODRIGO CASTRO SOLÍS, holder of identity card number 7-0101-0028, RODRIGO CHAVES CALVO, holder of identity card number 7-0114-0365, RODRIGO HERNÁNDEZ OBANDO, holder of identity card number 1-0903-0505, ROELIS REYES PICHARDO, holder of identity card number 5-0273-0355, ROGER JIMÉNEZ FAJARDO, holder of identity card number 5-0244-0772, RÓGER ULISES CAMPOS MUÑOZ, holder of identity card number 1-0728-0094, ROLANDO JOSÉ VARGAS UGALDE, holder of identity card number 1-0538-0903, RONALD SOLÍS JIMÉNEZ, holder of identity card number 1-0847-0914, ROSA MARÍA JIMÉNEZ VARGAS, holder of identity card number 6-0154-0565, ROSARIO SALAZAR RAMÍREZ, holder of identity card number 4-0125-0931, ROSE MARY LAWRENCE MORA, holder of identity card number 1-0625-0144, ROSIBEL BARBOZA ELIZONDO, holder of identity card number 1-0852-0854, ROSIBEL BRENES ALVARADO, holder of identity card number 4-0162-0518, ROSIBEL BRENES REYES, holder of identity card number 5-0236-0820, ROXANA ARRIETA MELÉNDEZ, holder of identity card number 1-0698-0291, ROXANA GÓMEZ BARQUERO, holder of identity card number 9-0075-0148, ROXANA HIDALGO VEGA, holder of identity card number 1-0802-0563, ROXANA LÁSCAREZ MIRANDA, holder of identity card number 1-0652-0137, ROXANA MESÉN FONSECA, holder of identity card number 1-0850-0833, ROY FERNANDO VARGAS NARANJO, holder of identity card number 1-0919-0152, RUTH LORENA SABORÍO NÚÑEZ, holder of identity card number 1-0971-0856, SABAS GARCÍA LEAL, holder of identity card number 5-0220-0011, SANDRA PÉREZ OBANDO, holder of identity card number 1-0672-0090, SANDRA YANNETT FERNÁNDEZ JIMÉNEZ, holder of identity card number 5-0219-0232, SAUL RETANA LÓPEZ, holder of identity card number 1-0630-0113, SEIDY JIMÉNEZ BERMÚDEZ, holder of identity card number 5-0265-0389, SERGIO NAPOLEÓN SOTELO DOÑA, holder of identity card number 8-0060-0703, SHIRLEY ARAYA SÁNCHEZ, holder of identity card number 7-0105-0414, SHIRLEY AZOFEIFA JIMÉNEZ, holder of identity card number 1-0828-0006, SHIRLEY DEMMITT GUTHRIE, holder of identity card number 1-0791-0410, SHIRLEY EUGENIA BARRANTES BARRANTES, holder of identity card number 2-0497-0859, SHIRLEY VÁSQUEZ CASTAÑEDA, holder of identity card number 6-0234-0401, SILVIA CASCANTE RUEDA, holder of identity card number 6-0241-0939, SILVIA CHINCHILLA PORRAS, holder of identity card number 1-0689-0724, SILVIA ELENA CASTRO CHINCHILLA, holder of identity card number 6-0260-0388, SILVIA EMILIA MORA JIMÉNEZ, holder of identity card number 1-0791-0964, SILVIA ESPINOZA ACEVEDO, holder of identity card number 5-0262-0823, SILVIA FERNÁNDEZ QUIRÓS, holder of identity card number 1-0977-0164, SILVIA PALMA ELIZONDO, holder of identity card number 2-0454-0994, SINDY VANESSA PÉREZ ABARCA, holder of identity card number 6-0245-0489, SINDY PAMELA RODRÍGUEZ MONTES DE OCA, holder of identity card number 1-0841-0220, SONIA EUNICE RODRÍGUEZ CHAVES, holder of identity card number 7-0091-0008, SONIA ISABEL GAMBOA ROJAS, holder of identity card number 2-0346-0839, SONIA RAMÍREZ THORPE, holder of identity card number 7-0087-0412, SONIA RODRÍGUEZ GUEVARA, holder of identity card number 5-0222-0182, STEVEN PICADO GAMBOA, holder of identity card number 1-0982-0768, SUGEY FONSECA PORRAS, holder of identity card number 1-1073-0434, SUGEY QUESADA VALERIN, holder of identity card number 7-0116-0302, SUSANA ALFARO SOTO, holder of identity card number 1-0944-0249, TAÑIA MARÍA PÉREZ BARRANTES, holder of identity card number 1-0825-0973, TERESITA BOLAÑOS ROJAS, holder of identity card number 1-0685-0508, TONY ACUÑA PANÍAGUA, holder of identity card number 1-0913-0472, ULFRAN GERARDO ALFARO GARCÍA, holder of identity card number 5-0222-0486, VANESSA VILLALOBOS MONTERO, holder of identity card number 2-0484-0081, VANLLY CANTILLO GAMBOA, holder of identity card number 1-0874-0062, VERA VARGAS BARRANTES, holder of identity card number 1-0818-0806, VÍCTOR ADRIÁN RODRÍGUEZ MÉNDEZ, holder of identity card number 1-0730-0506, VÍCTOR FERNÁNDEZ VARGAS, holder of identity card number 1-0889-0754, VÍCTOR MANUEL AZOFEIFA MONGE, holder of identity card number 1-0703-0316, VICTORIA OV IEDO SOTO, holder of national identity card number 1-0790-0508, VLADIMIR MUÑOZ HERNÁNDEZ, holder of national identity card number 1-0642-0719, WAIMAN HIN HERRERA, holder of national identity card number 1-0969-0554, WALTER ENRIQUE THOMAS AGUILAR, holder of national identity card number 7-0082-0466, WALTER GONZÁLEZ FALLAS, holder of national identity card number 1-0818-0248, WALTER GUEVARA LARA, holder of national identity card number 6-0180-0728, WILBERT KIDD ALVARADO, holder of national identity card number 4-0149-0623, WILLLAM ALEJANDRO PERALTA VILLALTA, holder of national identity card number 1-0923-0060, WILLIAM CALDERÓN NAVARRO, holder of national identity card number 6-0212-0756, WILLIAM MATTHEWS SALAS, holder of national identity card number 7-0084-0745, WILLIAM MORA DURÁN, holder of national identity card number 1-0621-0390, WILMAR ANTONIO JIMÉNEZ DÍAZ, holder of national identity card number 5-0023-0406, WILMAR PÉREZ BERMÚDEZ, holder of national identity card number 5-0237-0488, XARY BRICEÑO ALVAREZ, holder of national identity card number 7-0085-0762, XINIA BARRIENTOS ARROYO, holder of national identity card number 1-0976-0204, XINIA MARÍA ZAMORA OVARES, holder of national identity card number 3-0294-0379, XINIA VEGA GUZMÁN, holder of national identity card number 3-0300-0923, YAHAIRA MELÉNDEZ BENAVIDES, holder of national identity card number 1-0870-0973, YARMILA ULATE YOUNG, holder of national identity card number 1-0925-0150, YASHIN FRANCISCO HERNÁNDEZ SOLERA, holder of national identity card number 1-0954-0215, YAZMÍN MARCHENA ESPINOZA, holder of national identity card number 1-0664-0089, YENSY CAMPOS BARBOZA, holder of national identity card number 5-0293-0434, YESENIA MARÍA MELÉNDEZ VARELA, holder of national identity card number 1-1404-0477, YESENIA PANIAGUA GÓMEZ, holder of national identity card number 1-0845-0494, YESENIA ZAMORA BADILLA, holder of national identity card number 1-0991-0793, YORLENDA SPENCE THOMAS, holder of national identity card number 7-0103-0835, YORLENY CHING CUBERO, holder of national identity card number 7-0119-0457, YORLENY FERRETO SOLANO, holder of national identity card number 4-0155-0255, YORLENY SALAZAR NARANJO, holder of national identity card number 1-0738-0808, YORLENY MATARRITA GUTIÉRREZ, holder of national identity card number 5-0244-0588, YULIETH JIMÉNEZ TORRENTES, holder of national identity card number 5-0262-0980, and YURLY ARGUELLO ARAYA, holder of national identity card number 1-0870-0756.
In that ruling it was decided that, given that the first publication of the notice took place on March 21, 2019, in accordance with the provisions of Article 83 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), the appropriate course of action was to recognize those persons as intervening parties (coadyuvantes) in this matter.
On May 16, 2019, Karol Monge Molina appeared in her capacity as special judicial attorney-in-fact for the persons named above, requesting that the resolution issued at 9:31 a.m. on May 10, 2019, be corrected, given that the following persons who had requested intervenor (coadyuvante) status in the brief she submitted on April 12 of that year were not included: ALLEN CORDOBA CHAVES (Hallen), national ID 5-0271-0887; CARLOS ALBERTO SOLANO PÉREZ, national ID 6-0211-0367; CARLOS CALDERÓN BARRIOS, national ID 3-0335-0644; CARLOS DARIO ÁLVAREZ ARRIETA, national ID 2-0463-0645; CARLOS QUIRÓS TENORIO, national ID 1-0895-0474; CESAR AUGUSTO BARRANTES ARRIETA, national ID 1-0934-0951; EIMY ESPINOZA ANCHÍA, national ID 6-0260-0919; ELMER HERNÁNDEZ CASTILLO, national ID 5-0247-0005; FREDDY CHAJUD TORRES, national ID 6-0164-0694; GERALD HUERTAS ORTEGA, national ID 1-0926-0977; GERARDO MONGE BLANCO, national ID 1-0720-0430; GREGORIO JOSÉ HERNÁNDEZ SANDÍ, national ID 1-1016-0149; JAVIER ALVARADO SORO, national ID 2-0391-0190; JAVIER LEAL DINARTE, national ID 5-0268-0217; JORGE ANTONIO CORDERO CHACON, national ID 1-1019-0604; KAREN ALFARO VARGAS, national ID 1-0808-0716; KATIA MARCELA SABORIO SOTO, national ID 4-0137-0134; KATTIA VARGAS NAVARRO, national ID 1-0701-0539; KATTIA VARGAS VEGA, national ID 1-0810-0668; LUIS EDUARDO RODRÍGUEZ QUIRÓS, national ID 1-0605-0013; MABEL MURILLO ARCE, national ID 2-0443-0636; MARCELA MADRIZ ARCE, national ID 3-0271-0457; MARÍA VALENTINA CARMIOL YALICO, national ID 1-0744-0771; MARIO CAMACHO CAMPOS, national ID 1-0845-0638; MARLENE ACEVEDO MONTES, national ID 6-0152-0743; MARVIN DURAN PEREIRA; OMAR AGÜERO ROJAS, national ID 6-0152-0077; RALOXS ALVARADO CASCANTE, national ID 1-0873-0410; RODNEY GEORJANNY EARL BROWN, national ID 1-0930-0027; RONALD ABARCA SOLANO, national ID 3-0282-0138; SANDRA GÓMEZ AGUILAR, national ID 3-0262-0507; SANTIAGO ALFONSO ARAYA GUTIERREZ, national ID 1-0826-0278; SHIRLEY ROJAS BARRANTES, national ID 5-0240-0923; TERESA JIMÉNEZ ROJAS, national ID 6-0172-0033; VICTOR HUGO CHAVES CHAVARRÍA, national ID 2-0443-0030; and WILKIN PORRAS ALVAREZ, national ID 1-0772-0252.
Accordingly, by this act that omission is corrected and those persons are recognized as intervenors subject to the warnings set forth in the resolution issued at 9:31 a.m. on May 10, 2019. Likewise, the records of the following intervenors, who were also incorrectly included in that resolution, are hereby corrected so that they read, correctly, as follows: AMANDO AGÜERO ARAYA (read AMANDO, not ARMANDO), national ID 6-0212-0007; CARLOS PORRAS MORERA, national ID 1-0752-0459; DONALDO BERMÚDEZ RODRÍGUEZ, national ID 6-0250-0554; KRISIA FUMERO ARAYA, national ID 3-0324-0912; LIGIA CASTILLO CASTILLO, national ID 3-0344-0861; LUIS FERNANDO SUAREZ JIMENEZ, national ID 1-0738-0178; MARÍA ISABEL VILLEGAS NÚÑEZ, national ID 1-0665-0648; TANIA MARÍA PÉREZ BARRANTES, national ID 1-0825-0973; WALTER GONZALEZ FALLAS, national ID 1-0818-0243; JOSÉ RUBÉN DIMAS PORTILLO, national ID 8-0070-086.
In that same May 16, 2019 filing, Ms. Karol Monge Molina also requests that the following persons be recognized as intervenors: AUGUSTO FEDERICO LEONHARDES ZAMORA, adult, married, judicial employee, resident of Desamparados, San José, national ID 6-0156-0657; ROGER GERARDO AGUILAR CEDEÑO, adult, married, Public Defense Investigator, resident of San José, Desamparados, national ID 1-0583-0279; ROCÍO RAMÍREZ LEITÓN, adult, widowed, Social Worker, resident of San José, Moravia, national ID 1-0544-0163; XINIA FERNÁNDEZ VARGAS, adult, divorced, Social Worker, resident of Cartago, Central canton, national ID 1-0593-0681; and EVELYN PIEDRA VILLAFUERTE, adult, divorced, Certified Public Accountant, resident of San José, Pérez Zeledón, national ID 1-0931-0261, arguing that for health reasons these persons were unable at the time to sign the corresponding Special Judicial Power of Attorney together with the rest of the intervenor group that appeared. Given that this motion on behalf of these persons was filed on May 16, 2019—that is, after the deadline established in Article 83 of the Ley de la Jurisdicción Constitucional—it must be rejected as having been filed out of time.
Finally, on September 2, 2019, Wilkko Retana Álvarez, a judicial officer with national ID 1-0737-0795, appeared to state that he was filing a late intervenor brief in this action of unconstitutionality (acción de inconstitucionalidad) against the conditions established in Ley 9544 for eligibility to receive a pension. This intervenor motion is likewise rejected as having been submitted out of time, that is, after the deadline established in the aforementioned Article 83.
III.Opinion authored by Justice Hernández López. Standing rules in actions of unconstitutionality with respect to the plaintiffs.- Article 75 of the Ley de la Jurisdicción Constitucional governs the conditions that determine the admissibility of actions of unconstitutionality, requiring the existence of a pending matter before an administrative or judicial body in which unconstitutionality is invoked; a requirement that is not necessary in the cases provided for in the second and third paragraphs of that article, namely, when by the nature of the rule there is no individual or direct harm; when the action is grounded in the defense of diffuse interests (intereses difusos) or interests affecting the community as a whole; or when it is brought by the Attorney General of the Republic, the Comptroller General of the Republic, the Prosecutor General of the Republic, or the Ombudsman, in these last cases, within their respective spheres of competence.
Under the first of the scenarios provided for in paragraph 2 of Article 75 of the Ley de la Jurisdicción Constitucional, the challenged rule must not be susceptible to concrete application that would later permit a challenge to the implementing act and its consequent use as a predicate case. Second, the law contemplates the possibility of seeking relief in defense of "diffuse interests," which are those whose ownership belongs to groups of persons not formally organized but united around a particular social need, a physical characteristic, ethnic origin, a particular personal or ideological orientation, the consumption of a certain product, etc. In such cases, the interest is spread, diluted (diffuse) among an unidentified plurality of subjects. This Court has enumerated various rights to which it has applied the label "diffuse," such as the environment, cultural heritage, the defense of the country's territorial integrity, sound management of public expenditure, and the right to health, among others.
Furthermore, the enumeration made by the Constitutional Chamber is not exhaustive. Finally, when paragraph 2 of Article 75 of the Ley de la Jurisdicción Constitucional speaks of interests "affecting the community as a whole," it refers to the legal interests described in the preceding lines—that is, those whose ownership rests in the very holders of sovereignty, in each of the inhabitants of the Republic. This does not mean, therefore, that any person may come before the Constitutional Chamber to defend any interest whatsoever (actio popularis), but rather that every individual may act in defense of those goods that affect the entire national community, without it being valid in this area either to attempt any exhaustive enumeration. From the foregoing, it is clear that the plaintiffs have sufficient standing to challenge the constitutionality of the contested rules. It should be noted that, given the large number of accumulated actions, there is a diversity of plaintiffs: some have standing under the provisions of Article 75, paragraph two, because they come in defense of an interest affecting the community of judicial servants as a whole, while others bring actions of unconstitutionality on the basis of prior pending proceedings.
In that regard, the first group of plaintiffs who come in defense of guild interests (intereses gremiales) are those corresponding to actions of unconstitutionality number 18-007819-0007-CO (which is the lead case 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); and number 18-013217-0007-CO filed on behalf of the Asociación Costarricense de la Judicatura (ACOJUD).
The other plaintiffs who bring actions of unconstitutionality in their personal capacity, pursuant to Article 75, paragraph one, of the Ley de la Jurisdicción Constitucional, and who have pending habeas corpus (amparo) proceedings, are those in the action of unconstitutionality; in number 18-014168-0007-CO and in number 19-001720-0007-CO. The Court considers that all the parties involved are fully vested with standing to bring suit—with the exceptions to be noted—in light of the provisions of paragraphs 1 and 2 of Article 75 of the Ley de la Jurisdicción Constitucional. In addition, the constitutional objections raised do indeed concern matters whose constitutionality is subject to review through this proceeding. Furthermore, the plaintiffs have fulfilled the requirements set forth in Articles 78 and 79 of the procedural law. In conclusion, the consolidated actions of unconstitutionality are admissible, and the Court must therefore proceed immediately to examine the subject matter and merits of the case, subject to the exceptions set forth below.
IV.Drafted by Justice Hernández López. Regarding the partial admissibility of action 19-001720-007-CO. In the unconstitutionality action 19-001720-007-CO, the petitioner uses amparo proceeding 18-17019-007-CO as the underlying case. It must be recalled that Article 75 of the Law on Constitutional Jurisdiction, as an admissibility requirement for an unconstitutionality action, demands—beyond the existence of an underlying case in which the unconstitutionality claimed in the action is alleged—that there also be a connection between the two proceedings, that is, between the underlying case and the unconstitutionality action, and that the action constitute a reasonable means of protecting the right of the person being protected. In that regard, with respect to the unconstitutionality action filed, there are a number of arguments raised for the purpose of protecting the collective body of employees, officials, retirees, and pensioners that have no relation to the petitioner's specific situation and must therefore be rejected on admissibility grounds.
Only those claims that are personal in nature—not based on any diffuse interest—may be admitted; on the contrary, in the scenario governed by the first paragraph of Article 75 of the Law on Constitutional Jurisdiction, claims that are not directly related to the petitioner's specific situation cannot be accepted, because they would not constitute reasonable means of protecting her right. Accordingly, in the case of unconstitutionality action 19-1720, the claims that do not affect the situation of the petitioner—a judicial officer who states she joined the Fiscalía on January 2, 1988—are declared inadmissible. In that regard, the matters relating to the alleged "membership" right under ILO Convention 102 (Article 29, subparagraph a), pursuant to which she contends there is a right of "membership" upon contributing for 20 years to a given pension scheme, do not affect her. Likewise, the claims seeking to protect the generality of employees, officials, pensioners, and retirees—which have no connection to her specific situation—must be rejected as inadmissible; these include the claims seeking to protect judicial employees who, in her view, will receive pensions lower than those of the IVM scheme of the CCSS, and those 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 states represent 62% of Poder Judicial employees.
In unconstitutionality action 18-14168-007-CO, although the petitioners act in their personal capacity based on the standing conferred by the first paragraph of Article 75 of the Law on Constitutional Jurisdiction, given the existence of underlying amparo proceedings supporting their action, the action is admitted in its entirety, because the challenges do bear a direct relationship and connection to the petitioners' situation, such that, if upheld, they would constitute reasonable means of protecting their rights.
V.Drafted by Justice Hernández López. On the failure to consult the Caja Costarricense de Seguro Social and the State Banks regarding the bill processed under expediente No. 19.922. Some of the petitioners argue that even though the regulations establish new functions, competencies, and obligations for units of the Caja Costarricense de Seguro Social and of the State Banks—with regard to their lending capacity, by subjecting them to mandatory percentage investment obligations—the Asamblea Legislativa did not consult them so that they could express their views on the articles of the bill that could potentially affect them, and they contend that this violates the Law of the Constitution. In this regard, it must be borne in mind that this Tribunal has repeatedly held that standing to defend autonomy by way of an unconstitutionality action belongs to the respective public entity. For example, in judgment number 2008-017295 of 14 hours and 48 minutes of November 19, 2008, the Tribunal ruled that "only the autonomous institution affected by the omission in the legislative process has standing to bring the action" (in the same vein, judgment number 2008-014190 of 10 hours of September 24, 2008).
It should be noted that in a case where a possible violation of the autonomy of the Caja Costarricense de Seguro Social was alleged, this Sala insisted that "(…) the jurisprudential line of this Tribunal is clear in establishing that, when an unconstitutionality action alleges the defense of institutional interests, this constitutes a case of individual and direct harm, which is why it must be the institution's own legal representatives, and not a third party, who appear before this Sala in its defense (see in this regard judgments numbers 2009-00305 of 15 hours 13 minutes of January 14, 2009, 2008-017295 of 14 hours 48 minutes of November 19, 2008, 2016-01669 of 9 hours 30 minutes of February 03, 2016, and 2017-008159 of 9 hours 15 minutes of June 2, 2017, among others). The Procuraduría General de la República has expressed the same view in its response to this action—namely, that the petitioners lack standing to bring these particular claims. To that effect, the Procuraduría General de la República states:
"The petitioners contend that during the legislative process, a hearing should have been granted to the CCSS and to the State Banks, since their autonomy was affected by the assignment of functions, competencies, and obligations to them without first seeking their opinion.
On this point, we must note that the defense of the autonomy of the CCSS and of the State Banks must be carried out by those institutions themselves, not by the judicial branch trade union organizations or by former employees of that branch.
It is therefore evident that, in this respect, the petitioners lack standing to raise the objections they formulate. This Sala has already decided the matter accordingly on other occasions. By way of example, in judgment n.° 14651-2017 of 9:30 hours of September 13, 2017, it stated the following:
'it must be noted that this Constitutional Tribunal has repeatedly indicated that the defense of an institution's autonomy must be brought before this body by that same entity and not by a third party (votes Nos. 2008-014190 of 10:00 hrs. of September 24, 2008, 2008-017295 of 14:48 hrs. of November 19, 2008, 2016-01669 of 9:30 hrs. of February 03, 2016, and 2017-008159 of 9:15 hrs. of June 2, 2017). In the sub judice, the petitioner acts in his capacity as representative of a corporation (sociedad anónima), which is why he lacks standing to act in defense of municipal autonomy.' The referenced judgment is clear in its holding and refers to several precedents that the petitioner may consult." On the basis of the foregoing, the grounds of unconstitutionality raised by the petitioners for the possible violation of the autonomy of the CCSS and of the State Banks are inadmissible." In line with the arguments cited above, it must be stated that the Law governing this Jurisdiction grants standing to bring an unconstitutionality action against provisions that have negative effects on the fundamental rights of the petitioners themselves.
In the case under study, whether or not the Caja Costarricense de Seguro Social or the State Banks were consulted does not directly affect the rights of the promoters of this action, inasmuch as the parties directly affected by the alleged procedural defect are not the workers themselves, but rather the institution that is argued to have not been consulted—that is, the Caja Costarricense de Seguro Social, which is constitutionally entrusted with the administration of social insurance in accordance with the provisions of Article 73 of the Constitución Política, as well as the State Banks in defense of their autonomy. Consequently, only those institutions may legitimately bring such an unconstitutionality claim before this Sala. Accordingly, since the promoters lack standing to bring this claim, the action is inadmissible with respect to these allegations.
VI.Drafted by Justice Hernández López. Subject matter of the challenge. The petitioners challenge Law number 9544, entitled "Reform of the Retirement and Pension Scheme of the Poder Judicial" (Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial), contained in Law number 7333, which is the Ley Orgánica del Poder Judicial of May 5, 1993, and its amendments. The challenge is brought in toto and specifically against Articles 224, 224 bis, 226, 227, 236, 236 bis, and 239, as well as against Transitorio VI of the Ley Orgánica del Poder Judicial, as amended by Law No. 9544 of April 24, 2018. In addition, the petitioners raise an unconstitutionality challenge against Article 208 bis of the Reglamento Interno de la Asamblea Legislativa. The provisions are challenged both as to the legislative procedure and as to the substance or content of the law.
VII.Drafted by Justice Hernández López. Background and reasons that led to the enactment of Law 9544. Before analyzing the reasons that gave rise to the reform of the rules governing the Poder Judicial pension scheme (régimen de pensiones), it is important to understand the context of the various pension schemes and their characteristics, and where the Poder Judicial scheme fits within that framework, in order to grasp the full universe of systems that exist in our country and the specific characteristics of the scheme under analysis. Thus, according to the Superintendencia de Pensiones, pension schemes in our country are classified into three broad categories: basic pension schemes (regímenes básicos de pensiones), supplementary schemes (complementarios), and non-contributory schemes (no contributivos). The Poder Judicial Pension Scheme is funded through tripartite contributions (contributions from workers, the employer, and the State). Among the basic schemes that exist in our country are:
- Invalidity, Old Age, and Death Scheme (Régimen de Invalidez Vejez y Muerte) (CCSS), to which the majority of the population belongs. - 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 The supplementary schemes are:
- 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 (ICE) - 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 The Dirección Nacional de Pensiones of the Ministerio de Trabajo y Seguridad Social administers the following schemes:
Contributory schemes (Regímenes contributivos):
- Empleados de Comunicaciones Excepciones, Ley No. 4 del 23-09-1940 and 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, and 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 and amendments - Empleados del Ferrocarril al Pacífico, Ley No. 264 del 23-08-1939 - Ley Marco, Ley No. 7302 del 15-07-1992 Non-contributory schemes (Regímenes no contributivos):
- Benemérito, Ley 3825 del 07-12-1966 - Derecho Guardia Civil, Ley No. 1988 del 14-12-1955 General Pensions (Grace) Law, Ley 14 del 02-12-1935.
Magón Awards, Ley 6984 del 17-04-1985 Unemployment subsidy Incop Pre-retirees, Ley No. 8461 del 16-10-2008 Incofer Pre-retirees, Ley No. 8950 del 12-05-2011.
(Classification recorded at folios 230 and 231, Volume 1 of the legislative file) By means of Ley No. 34 of July 9, 1939, the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) for judicial employees was established; this fund subsequently became part of the Ley Orgánica del Poder Judicial No. 8 of November 29, 1937, constituting Title XI: "On Judicial Retirements and Pensions." In the years 1959, 1961, 1962, 1963, 1964, 1971, and 1983, several amendments were made to its provisions regarding age requirements and years of service required for retirement, as well as the determination of beneficiaries (beneficiarios). Subsequently, Ley No. 7333 of May 5, 1993, comprehensively reformed the Ley Orgánica del Poder Judicial No. 8, and the title corresponding to Judicial Retirements and Pensions became Title IX; thereafter, Ley 7605 of May 2, 1996, amended several articles of that title in pursuit of the fund's sustainability (sostenibilidad).
In 2012 and 2013, as a result of findings from actuarial studies (estudios actuariales) regarding the actuarial deficit (déficit actuarial), the Poder Judicial initiated an internal process aimed at drafting a reform proposal to reverse the actuarial deficit that had been exposed. During that process, the professional associations submitted their views and proposals to the Corte Suprema de Justicia, as recorded in Session No. 12-2013 held at 9:00 a.m. on March 18, 2013. (See Integrated Legal-Economic Report AL-DEST-ITS-307-2016, folio 225 et seq., Volume I of the legislative file.)
As may be gleaned from the statement of motives (exposición de motivos) appearing at folio 2 of legislative file No. 19.922, which was assigned the title "Bill for a Comprehensive Reform of the Various Pension Regimes and Related Legislation" (Proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa), the initiative was promoted out of the interest of several legislative blocs (bancadas legislativas) in "(…) carrying out a comprehensive reform of the entire pension system (régimen de pensiones), with the objective of eliminating abusive provisions, rationalizing expenditure, and providing stability to the various special pension systems and to the Disability, Old Age, and Death System (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social. This, on the basis of the principles of solidarity, equality, redistributive justice, and efficiency, which are pillars of our social rule of law (estado social de Derecho)." That statement of motives likewise provides that "the bill seeks to make the necessary modifications and additions to those special pension systems in order to correct situations that are detrimental to their sustainability.
In the same manner, modifications are made to all related regulations that are necessary to remedy the identified problems. Situations such as the payment of pensions to deceased persons, disproportionate increases, luxury pensions (pensiones de lujo), lifetime benefits (beneficios vitalicios), lack of supervision and control, among many other shortcomings, are what this initiative aims to correct. Under the foregoing considerations, it should be noted that the aim is to eliminate or modify those provisions that do not correspond to the country's fiscal reality, as well as the disproportionate benefits that are not consistent with our financial situation." Concern for the country's finances is also recorded, as stated: "the aim 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 the pension systems, rather than processing separate initiatives that, although very commendable, in all cases come to correct specific situations.
We are convinced that, in order to support public finances (hacienda pública) and the sustainability of these systems, it is necessary to carry out structural reforms that will have a greater impact on their financial health.
The deputies who sign this bill are convinced that the sustainability of many pension systems rests in our hands, and we consider it an unavoidable duty to address all those inconsistencies that may be causing harm to the financial stability of a given system." As may be inferred from the legislative file, the initial bill was aimed at reforming all pension systems; however, the Poder Legislativo subsequently focused on processing separately the reform of the Judicial Branch Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial). Thus, it can be confirmed that at Regular Session No. 15 of the Special Committee (Comisión Especial) Charged with Examining and Reporting on the Bill "Law for the Comprehensive Reform of the Various Pension Regimes and Related Legislation, Legislative File No. 19.922," a motion for a new substitute text (texto sustitutivo) was submitted, formally changing the name of the bill to "Reform of Title IX of the Ley Orgánica del Poder Judicial, on Judicial Retirements and Pensions, Ley No. 7333 of May 5, 1993, and its amendments" (folios 1674 and 1717 of Volume 7 of the legislative file); the substitute text motion was approved with 7 deputies in favor and 1 against (folio 1731, Volume 7).
It is important to add that, prior to the submission of this reform bill, SUPEN (Superintendencia de Pensiones) had expressed its concern about the unsustainability of the Poder Judicial's pension system (see Revista de Pensiones No. 23, SUPEN, September 2014, p. 16). Among the issues noted are:
Investment: SUPEN criticizes the Poder Judicial for investing everything in instruments issued by public-sector entities (held to maturity), because it generates a high concentration risk and limits the possibility of achieving higher returns at reasonable risk levels.
Sustainability: to cover the benefits owed to pensioners until their extinction, the fund requires 764,889,6 million [colones]; however, it only has 369,065.2 million accumulated, that is, only 48.2% of what is needed. Furthermore, the reserve in formation (reserva en formación) of the Retirement and Pension Fund of the Poder Judicial as of March 31, 2014, is zero. In addition, over the past two years, the growth rate of new retirees began to accelerate and exceeded 5% year-on-year.
Privileges: on average, a pension from the Poder Judicial's system is five times higher, and its members retire 20 years earlier than under the IVM (Régimen de Invalidez, Vejez y Muerte). Furthermore, the benefit corresponds to the average salary of the last 24 months, which is equivalent to approximately 100% of the salary received. In the event of death, the spouse receives the full amount of the benefit that the retiree had been receiving. It is also permitted for employees 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 as to the effectiveness of the measures for achieving the long-term actuarial balance (equilibrio actuarial) of the system (folio 264, Volume 2 of the legislative file).
The Consejo Superior del Poder Judicial, in official letter 5211-DE-2016 (folio 683, Volume 3 of the legislative file), notes that in its session of December 6, 2007, Article XLII, it had agreed that actuarial studies would be conducted every two years, and that in 2014 it decided to contract a firm represented by Eduardo Melinsky, who had conducted the previous study; however, the contract could not be executed because that professional was not registered with the Colegio de Ciencias Económicas de Costa Rica, which was a requirement of the contracting process, given that Mr. Melinsky is a mathematical actuary residing in another country. A subsequent tendering process (licitación) also proved unsuccessful, which led them to seek the alternative of using the cooperation agreement (Convenio de colaboración) that the institution had signed with the Universidad de Costa Rica, so that it could work together with the Poder Judicial's technical team to assess the Fund's current financial solvency and its projected outlook.
In Convenio R-CONV-005-2016 entered into between the Poder Judicial and the Universidad de Costa Rica, it is stated that several interdisciplinary teams will be established between the parties. In the case of the Poder Judicial, the Executive Team will include a representative of the Poder Judicial's professional associations (Gremios del Poder Judicial) (folios 689 and 1154) — for the first time, workers were given representation in an actuarial study. In an appearance before the Committee, 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 parts of the five phases of the Convenio UCR-Poder Judicial. The Executive Committee within the Poder Judicial is the one that endorses each phase, tests it, consults with the Technical Committee, and ultimately gives its approval." "On the institution's side, there is an executive team… The Head of the Financial-Accounting Department of the unions (gremios) forms part of this technical team. Why did the institution make that decision? Well, because experience had shown us that, in earlier processes, the unions' objections to the study would arise at the end of the process, and we would then enter into an internal conflict that was unhealthy. For this reason, we considered it important to incorporate the union representative as part of this executive team, and he participates actively and reviews the products, as part of the rest of the team that has been formed." (folio 1325, tomo 6 of the legislative record) The conditions for each product were agreed upon there, and the agreement was communicated to the Special Legislative Commission responsible for examining 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 of the legislative record) "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 from don Arnoldo, at the time the union representative, and from the Auditoría; these were forwarded to the IICE, which gave us a response, and in some cases they corrected the products because this process takes place in a preliminary version for discussion or evaluation, and then, once satisfied with that correction, approval and sign-off were given." (folio 2335, tomo 10 of the legislative record) At folio 843 of the legislative record, the earlier actuarial study (estudio actuarial) by Melinsky, Pellegrinelli y Asociados S.A. is provided, which at folio 939, among its recommendations, notes that the year 2026 is foreseen as a critical year with a significant actuarial deficit (déficit actuarial) of 50% of the constitutive capital of benefits in payment.
It states 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 corrective measures, it must be borne in mind that this involves a pension scheme (régimen previsional) in operation in which the following concepts must be reconciled:
Benefits in payment Length of service rendered by active employees Actuarial considerations (required mathematical reserves, operating deficit, actuarial deficit, critical year, required equilibrium average premium) Legal considerations Contributory capacity of members Budgetary capacity of the Poder Judicial Budgetary capacity of the Poder Ejecutivo It further adds: "any legal analysis must take into account that the adjustments indicated are necessary in order to improve the situation of the actuarial deficit and critical year, which implies an Institutional Risk that endangers the assets of the entire body of collective and retired members who make up the pension scheme of the Employees and Officials of the Poder Judicial." (emphasis not in the original) "In other words, the basic legal element to be taken into account is that the individual rights recognized by current law must be considered expectation rights (derechos en expectativa) subject to the collective right with respect to the feasibility of benefits for the body of members, not only insofar as it affects the sphere of the Poder Judicial but also due to its potential effect on the National Budget." "In this way, taking into consideration ILO Convention 102 ratified by Costa Rica and recent case law, and in accordance with working meetings, it is considered that the changes must not affect those who are within 18 months of reaching their retirement benefit (beneficio jubilatorio) at the time the amendments are enacted." The judicial employees' organizations undertook the task of hiring their own mathematical actuary to comment on the 2012 Melinsky, Pellegrinelli y Asociados S.A. study, in which it is indicated that the actuary concurs with the majority of the recommendations given in that report; however, a difference is presented with respect to the critical year in which the Retirement Fund (Fondo de Jubilaciones) could face problems, which shifts from 2026 to 2050.
(see folios 1053 et seq., tomo 5 of the legislative record) The difference between the actuarial criteria and the time elapsed (several years) justified the aforementioned decision of the Poder Judicial to commission a new study with the School of Economics of the Universidad de Costa Rica, mentioned above. In order to await the results of those studies, the Commission responsible for the reforms in the Asamblea Legislativa agreed to several extensions of the deadline for issuing an opinion while awaiting those products (see folios 1186, 1224, tomo 5 of the legislative record), "considering furthermore that technical studies are indispensable for any proposal on the matter and that without technical support there would be the risk that any amendment could be declared unconstitutional, it is proposed that the following modification extending the deadline of the Special Commission studying the reform of the law in question be adopted…" (folios 1224, 1230 et seq., tomo 5 of the legislative record) In the appearance of the Executive Director of the Poder Judicial (tomo 1322 et seq., tomo 6 of the legislative record), she notes that since the last actuarial study by Melinsky, the actuarial deficit situation had gone from 2.48 trillion "to a scenario in the vicinity of 5 quadrillion." In response to the question from Diputada Piszk Feinzilber: "Would I be correct to interpret that the situation is worse than we had imagined?", the Executive Director's answer was: "Yes.
Four years have passed since 2012 to the present. No decisions have been made and the situation has worsened." (folios 1338 and 1339, tomo 6 of the legislative record) Diputada Piszk Feinzilber added:
"What I want is for it to be made very clear here that our concern is not based on a whim" … but rather on the fact that "it is absolutely clear that as long as no decisions are made, the situation is going to continue to worsen." "I know, and we had even committed to waiting until there was a complete actuarial study before making decisions of a — I don't know if the right word is numerical or not numerical — but with regard to contributions. But well, I think it is absolutely clear that there is a concern on our part, that the Corte must be aware of that, that here, well, it is all Costa Ricans who are going to have to pay, if this thing continues to be delayed, and from that standpoint, we, evidently, as legislators who have to make a decision…" (folio 1343, same tomo) In the same vein, Diputada 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 soundness of the scheme. A scheme that is going to end up in the national budget of the Republic; if financial soundness is desired, a scheme that furthermore does not guarantee the pension expectation of the people who are currently contributing, or who will have to enter and contribute double; the same as the employer and the same as the State. That is, it goes to the central budget…" (folio 1754, tomo 8 of the legislative record) Starting at 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 on record; he previewed for the Commission 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 accumulated reserves and represents 36% of the present value of the entire liability of the scheme, and that the substitute text under discussion in the Commission is insufficient to guarantee the sustainability of the Poder Judicial's pension scheme.
(see folio 1352, tomo 7 of the legislative record). That conclusion is repeated in the delivery of IICE product #3, which indicates that the proposed substitute text improves the situation but is not sufficient to guarantee the sustainability of the scheme. (folios 1600 et seq., in particular folios 1633 and 1634, tomo 7 of the legislative record). That version incorporated observations from the counterpart teams (folio 1601, same tomo) As a reaction to the technical study, the Commission introduced a new substitute text for the reform bill on 29-3-2017 (see folios 1673 et seq., same tomo), which was approved (folios 1731 et seq., same tomo) In tomo 10 (folios 2274 and 2275), the intervention of Dr. José Antonio Cordero Peña of the IICE is on record, 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 things continue as they are at this moment, what is going to happen is that the people who retire in the coming years will consume the resources of the fund belonging to future generations — and notice how curious this is — since we are all so long-lived, those resources will also be consumed by people who are going to finance them when they are ninety years old, when they are ninety, ninety-five years old; someone is going to have to come and tell them, look, you know what, your pension is no longer going to be feasible, similar to what happened to some members of private pension funds in Chile." From the minutes, a clear intention on the part of the majority of the Commission's members to await all of the IICE's products can be inferred; for that reason the deadline for analysis of the bill was extended several times and several substitute texts were drafted, and likewise, the intention to issue an opinion in accordance with the technical criteria is evident, as can be seen from the following statements:
"Well, first of all I do not understand why our colleagues from Frente Amplio want to review a vote of more than thirty-eight votes whose purpose is to extend the deadline…
Secondly, I want to make it very clear here that it was never, never said that an opinion would be issued without having the actuarial studies from the Universidad de Costa Rica.
At all times this commission stated that it would issue an opinion based on technical criteria, responsible criteria, and actuarial figures; but I also have to say that there is enormous concern here and a demand that we make from here to the Corte, because since September of last year they have been telling us the actuarial study will be ready in November, then they tell us January, then they tell us April, and today they tell us June." (folio 1810, tomo 8 of the legislative record) Furthermore, in the appearance of Lic. Álvaro Ramos Chaves, Superintendent of the Superintendencia de Pensiones (Supen) (see folios 1692 et seq., same tomo), among the observations he makes, he proposes as a suggestion to help reduce the actuarial deficit of 5 quadrillion, the possibility of introducing a special solidarity contribution (contribución especial solidaria), progressive with some cap to bring it down to one trillion colones, and a Junta Administradora that would be a body attached to the Poder Judicial with maximum decentralization (desconcentración máxima) and instrumental legal personality (personalidad jurídica instrumental), financed through a payment by all of 5 per thousand on salaries and pensions.
He likewise recommends an 18-month transition period for the new legislation, in accordance with domestic case law (folio 1711, same tomo). He subsequently submitted a written report at folios 1852 et seq. on the substitute text consulted.
At folio 1861 of Volume 8 of the legislative file, the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica (IICE) submitted its report IICE_4, and among its conclusions it noted that a comparison of the current text governing pensions, the substitute text, and the bill submitted by the Court showed that none of the scenarios guaranteed long-term actuarial solvency (solvencia actuarial). With respect to the matter at hand, Conclusion 3 states:
"From the comparison of the different results obtained under each of the Regulatory Frameworks (Current vs. Substitute Text vs. Corte Plena), it is evident that:
– the main actuarial solvency indicators quantified herein (the Actuarial Balance and the corresponding 'Level of Insolvency' indicator over a 100-year horizon) under the CORTE PLENA Framework improve compared to those obtained under the CURRENT FRAMEWORK; but not sufficiently to allow for the objective and technically rigorous establishment of long-term actuarial solvency.
– the difference between those same two actuarial solvency indicators (the Actuarial Balance and the corresponding 'Level of Insolvency' indicator over a 100-year horizon) calculated under the CORTE PLENA FRAMEWORK compared to those calculated under the SUBSTITUTE TEXT FRAMEWORK is not significant. In neither of those two quantified regulatory frameworks could long-term actuarial solvency be demonstrated." (folio 1895, same volume) At folio 2155 et seq. of Volume 9 of the legislative file, product IICE-6, Final Report — "Compilation and Final Report: Conclusions and Recommendations" — appears, which reiterates that under the scenario in effect as of 31/2/15, the Fund cannot guarantee its commitments in the long term (Conclusion #2), and that with the bill submitted by the Corte Suprema and the one from the Poder Judicial professional associations, the Regime is not viable from the standpoint of solvency (Conclusions #1, #4, #8). It likewise notes that under the Substitute Text regulatory framework as of 31/12715, the Fund cannot guarantee its commitments in the long term (Conclusion #3). Scenarios IICE_3 and IICE_4 do pass the actuarial solvency test (Conclusions #8 and #9), and scenarios IICE-3 and IICE-4 do not impose burdens on the State.
For its part, at folios 2570 et seq. of Volume 11 of the legislative file, it appears that the Reporting Committee (Comisión Dictaminadora), after reviewing the IICE Final Report, decided to incorporate some of the variables contained in the IICE-4 Regulatory Framework. Among these:
a– Age for ordinary old-age retirement (jubilación por vejez ordinaria): 65 years b– Age for early retirement by length of service (jubilación anticipada por tiempo de servicio): 60 years for women and 62 years for men.
c– Length of Service: 35 years, with a minimum of 20 years worked in the service of the Poder Judicial.
d– Retirement benefit percentage: 85% of the average of the last 240 salaries.
e– Widow's/children's pension percentage (pensión por viudez, hijos): 80% f– Maximum pension cap: 10 times the lowest salary currently being paid in the Poder Judicial.
g– Minimum pension (Pensión Mínima): one-third of the employee's last salary.
h– Employee contribution (Cotización obrera): 15% i– Employer contribution (Cotización patronal): 14.36% j– State contribution (Cotización estatal): equal to IVM (Régimen Invalidez, Vejez y Muerte CCSS) k– Special, Solidarity, and Redistributive Contribution (Contribución Especial, Solidaria y Redistributiva): 50% on the excess over the maximum cap (10 base salaries) l– Administration of the Fund: not to be assumed by the Fondo de Pensiones y Jubilaciones del Poder Judicial m– Incentive for deferral of old-age retirement (jubilación por vejez): not contemplated in the model.
That approved text was submitted for consultation to the Corte Suprema de Justicia (folios 2625, 2759 et seq.) and was published in La Gaceta Digital 147, Alcance 189 of August 4, 2017 (majority committee opinion submitted for consultation) and in La Gaceta Digital 148, Alcance 190, August 7, 2017 (minority committee opinion) (see folio 2866, Volume 12 of the legislative file).
The majority committee opinion (dictamen de mayoría) and the minority committee opinion (dictamen de minoría) were referred to the Instituto de Investigaciones en Ciencias Económicas of the 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 noted with respect to the bill approved by the majority that the changes to the calculation of the retirement or pension amount, to the required age, to the 50% special solidarity contribution, the employee contribution with a differentiated scale, and the early retirement age with gender-based differences all favor the actuarial solvency of the Fund. Whereas, regarding the minority opinion (folios 2945 et seq. of the same volume), which was in favor of:
Using a lower reference salary (salario de referencia), calculated as the average of the last 10 years adjusted by the CPI (IPC). On this point, it is noted that this calculation method is less favorable for the actuarial solvency of the Fund, and that its effect must be analyzed together with other characteristics and parameters such as the ordinary or service-based retirement age, employee contribution, solidarity contribution, and transitional provisions.
85% of the reference salary with an employee contribution of 11%. In this regard, it notes that an 11% employee contribution should be associated with a retirement benefit or pension not exceeding 72.5% of the reference salary calculated using 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, with no minimum age established for early or service-based retirement. In this regard, it is noted that under this scenario, even with a contribution of 15% on salaries, retirement benefits, and pensions, the Fund would be insolvent if an 85% reference-salary benefit is maintained. It further states that "the analyses conducted by IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous actuarial solvency test." In particular, it notes:
"i. If the employee contribution remains at 11% and under the other conditions of the Minority Opinion, the actuarial deficit (déficit actuarial) would exceed 3 trillion colones (3 millones de millones de colones), and actuarial insolvency would exceed 30% of the Fund's commitments.
ii. If the employee contribution is increased to 15% and under the other conditions of the Minority Opinion, the actuarial deficit would exceed 1.7 trillion colones, and actuarial insolvency would exceed 17% of the Fund's commitments.
A solidarity contribution of 20% on the excess over the maximum cap established for retirement benefits and pensions, set at 10 base salaries (salarios base). This percentage may be increased to 50% "if an actuarial study so recommends and the Administrative Board (Junta Administrativa) of the Fund so approves." Regarding this proposal, 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 by an additional 10 years beyond the 18 months recognized as vested rights (derecho adquirido); although the benefit is set at 100% of the reference salary calculated from 120 salaries adjusted by the CPI, the transitional provision does not contemplate a gradual phase-in, so that its effect on solvency is similar to that of the transitional provision in the Corte Plena bill, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less gradual phase-in, it is less favorable compared to Transitional Provision IV of the Majority Opinion with regard to its impact on the actuarial solvency of the Fund.
Employer contribution. It is proposed that the employer contribution of the Poder Judicial (currently 14.36% of the salaries and wages of affiliates) "shall be adjusted proportionally in accordance with the increases that the Administrative Board agrees upon as the contribution of judicial employees….". "The IICE team considers the foregoing clause entirely inadvisable." "The position is that the guarantee of solvency should not rest on the state contribution, thereby avoiding further deterioration of the country's already precarious fiscal situation." Credit operations: It was proposed to authorize the Administrative Board (Junta Administradora) to carry out credit operations (operaciones de crédito) directly or through a financial institution, using the Fund's revenues. On this matter, the IICE team stated: "…the Fund's potential involvement 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, all of which entail expenses and risks that must be adequately assessed." Following these observations and the legislative debate, amendments were made to the bill—in most cases to align it with the criteria issued by IICE, and in other cases to incorporate positions expressed during the legislative debate.
The foregoing background is necessary to understand the origin of many of the proposals that were approved and are now challenged in this action.
VIII.Drafted by Magistrate Hernández López. On the methodology for analyzing the action.– To facilitate the study of the challenged regulations, the arguments put forward by the petitioners will be analyzed in the following considerandos, dividing the analysis into two broad parts in accordance with the issues presented to the Court: a) allegations of unconstitutionality on formal grounds or based on the legislative formation procedure; and b) arguments on the merits of the matter.
FORMAL ARGUMENTS RELATING TO VIOLATIONS OF PARLIAMENTARY PROCEDURE DURING THE PROCESSING OF THE BILL THAT GAVE RISE TO THE CHALLENGED LAW.
IX.Written by Justice Hernández López. On the constitutionality of Article 208 bis of the Reglamento de la Asamblea Legislativa (now 234 bis). Some of the petitioners (accionantes) challenge the constitutionality of Article 208 bis of the Reglamento de la Asamblea Legislativa —now Article 234 bis following the amendment that regulation underwent on March 4, 2019— insofar as that provision allows the Asamblea Legislativa to apply special procedures for the approval of bills without previously defining in a clear manner the rules to be followed, considering that the use of those special procedures infringes the democratic principle (principio democrático), the principle of legal certainty (principio de seguridad jurídica), the principle of political participation (principio de participación política), the principle of representation (principio de representación), as well as the right of amendment (derecho de enmienda) of legislators (diputados).
That group of petitioners holds that the failure to regulate in advance the special procedures to be applied to a bill renders such principles nugatory and limits the necessary participation of all legislators, and therefore considers Article 208 bis of the Reglamento de la Asamblea Legislativa to be unconstitutional, as well as its application or use for the approval of a bill. On this matter, the Court has had occasion to rule on various occasions, and the common thread of the jurisprudential criterion has been the recognition of the authority that the legislature holds to self-regulate its organization and functioning as a Branch of Government, but also to establish the various legislative procedures it will use in the lawmaking process (Article 121, paragraph 22, in relation to Article 9, both of the Constitución Política). In this regard, the Court has noted that the authority to issue the internal rules of the Asamblea Legislativa, as well as to amend or interpret them, are part of the interna corporis — the intrinsic regulations given by Parliament itself in the exercise of its most essential powers — which, in turn, constitutes one of the basic guarantees derived from the democratic principle: Parliament's self-determination over its internal affairs (see judgment number 8408-99 of 15:24 hours of November 3, 1999, and number 2008-07687 of 14:50 hours of May 7, 2008, among others); a competence previously recognized by this Court:
"The positive entrenchment of the democratic principle in Article 1° of the Constitución Política constitutes one of the pillars — the nucleus, one might say — upon which our republican system rests, and in its character as a supreme value of the Constitutional State of Law, it must have direct effect on the remaining sources of the infraconstitutional legal order, and obviously on the Reglamento, from which it follows that Parliament's authority to enact the norms governing its own internal affairs (interna corporis) is not only provided for by the Constitución Política in Article 121, paragraph 22), but is also inherent to the democratic system and specific to the Asamblea Legislativa as a constitutional branch, pursuant to Title IX of the Carta Fundamental, and consequently to disregard or alter that authority would constitute a serious violation of the democratic organization that governs the country [...] The purpose pursued by vesting the Asamblea with the competence to self-organize is the regulation of its procedures of action, organization, and functioning; its internal organization is therefore a matter within the scope of that competence and, accordingly, there is no obstacle to the establishment, in the exercise thereof, of other types of reasonable majorities, provided that the principles of equality and non-discrimination are respected" (judgment number 0990-92 of 16:30 hours of April 14, 1992, and in the same vein judgment number 1311-99 of 16:42 hours of February 23, 1999).
The Court has likewise noted that the Asamblea Legislativa 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 minority rights as a guiding criterion to prevent abuse or the dictatorship of majorities — without prejudice to the respect that majority decisions deserve, but bearing in mind that minorities have the right to be heard and to participate with their vote in decision-making, particularly in those acts which, by virtue of their significance, embody the essence and raison d'être of the representative system. It must be borne in mind that, in safeguarding minority rights, a fundamental criterion of democratic coexistence is established, extending 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 derived from the very concept of democracy — understood as the democracy of Costa Rica being grounded in a continuous contrast of organized opinions that give concrete expression to the principle of "majority rule with minority participation, within a regime of freedom and equality" (see in this regard judgment number 990-92 of 16:30 hours of April 14, 1992).
In the Court's view, "(…) The purpose pursued by vesting the Asamblea with the competence to self-organize is the regulation of its procedures of action, organization, and functioning; its internal organization is therefore a matter within the scope of that competence and, accordingly, there is no obstacle to the establishment, in the exercise thereof, of other types of reasonable majorities, provided that the principles of equality and non-discrimination are respected" (see judgment number 990-92 of 16:30 hours of April 14, 1992).
That being the case, the criterion of this Court is that it is constitutionally valid, possible, and necessary for the Asamblea Legislativa to enact its regulatory framework, which includes the determination of the procedures it deems appropriate for the lawmaking process; procedures which, as stated, must be respectful of the principles in force in Costa Rican democracy and of the fundamental rights of persons. Now, specifically with regard to the petitioners' challenge to the constitutionality of Article 208 bis of the Reglamento de la Asamblea Legislativa (now 234 bis), it should be noted that this is not the first time such a challenge has been raised before the Court, and on the previous occasions when this Court has had to analyze the matter, it has stated, insofar as relevant, the following:
"IV.- ON THE CONSTITUTIONALITY OF ARTICLE 208 BIS OF THE Reglamento de la Asamblea Legislativa. By judgment number 2008-07687 of 14:50 hours of May 7, 2008, this Court ruled on the constitutionality of Article 208 bis of the Reglamento de la Asamblea Legislativa, on which occasion the majority of the Court, at that time, considered the following:
"V.- CONDITIONS UNDER WHICH THE BILL TO ADD ARTICLE 208 BIS TO THE Reglamento de la Asamblea Legislativa IS SUBSTANTIALLY CONSISTENT WITH THE LAW OF THE CONSTITUTION. A) Respect for the democratic principle and the right to free political participation of minorities: This Constitutional Court understands that the bill to add Article 208 bis to the Reglamento de la Asamblea Legislativa is consistent with the Law of the Constitution, provided it is stipulated or interpreted that the procedural motion (moción de orden) provided therein must be approved by a vote of no less than two-thirds of the total membership of that body, since establishing or providing for special procedures for the processing of amendments to the Reglamento and certain bills entails an amendment or modification of the Reglamento — that is, of the ordinarily established procedures — so that, in order to comply with the provisions of Article 121, paragraph 22), of the Constitución Política, and above all to be consistent with the democratic principle and the principle of minority participation in the making of a fundamental or far-reaching decision, such a qualified or supermajority (mayoría calificada o agravada) must be required, implying the achievement of a legislative consensus in which different political-party or ideological orientations converge in order to respect it.
To the foregoing must be added that observance of the safeguards established in interpretive agreement No. 4084 of June 10, 1999 — as it involves the exercise of the amending power — guarantees such principles, as this Court set forth in Voto No. 8408 of 15:24 hours of November 3, 1999, partially transcribed in the third recital of this judgment. B) Observance of the principle of legal certainty: In order to align the bill for addition with the constitutional principle of legal certainty and to avoid any element of surprise, this Court assumes that it must be stipulated or understood that the motion that amends the rules, by establishing a special procedure, must set out in a sufficiently explicit, clear, and precise manner the various phases or stages of that special iter, so that, as a two-thirds majority of the total membership of the Asamblea Legislativa is required in its determination, the democratic principle and the principle of free political participation of minorities are likewise respected.
…VII.- COROLLARY. In light of the foregoing, it is necessary to respond to the legislative consultation in the sense that the bill to add Article 208 bis to the Reglamento de la Asamblea Legislativa is not unconstitutional, provided it is understood that the procedural motion to establish a special procedure must be approved by two-thirds of the total membership of the Asamblea Legislativa and that it must set out in explicit, clear, and precise terms the phases or stages of the special procedure established" (see judgment number 2008-07687 of 14:50 hours of May 7, 2008, number 2008-009579 of 14:11 hours of June 11, 2008, and number 2011-015749 of 9:32 hours of November 16, 2011, among others).
From the foregoing, it follows that Article 208 bis of the Rules of the Legislative Assembly constitutes a mechanism for processing bills through the special legislative formation procedures it regulates, and is constitutionally valid insofar and to the extent that the point of order motion proposed to decree a special procedure for a given bill is approved by two-thirds of the total membership of the Legislative Assembly and explicitly, clearly, and precisely sets forth the phases or stages of the special procedure to be applied. This is so because, as stated above, the exercise of the power of internal self-regulation is a matter that belongs exclusively to Parliament, and the sole subject of Article 208 bis of the Rules of the Legislative Assembly (now 234 bis) is precisely regulatory in nature — namely, the establishment of legislative procedure guidelines; from this perspective, the Court reiterates its position that Article 208 bis of the Rules of the Legislative Assembly is constitutional (see, in that vein, judgment number 8408-99 of 15:24 hours on November 3, 1999, and number 2005-00398 of 12:10 hours on January 21, 2005, among others).
On the basis of the foregoing, the Court holds that applying Article 208 bis of the Rules of the Legislative Assembly to parliamentary proceedings is not unconstitutional, provided it is understood that the point of order motion for a special procedure complies with what was stated above regarding the prevailing respect for the principles in force in Costa Rican democracy and the fundamental rights of persons (see, in that vein, judgment number 2008-004569 of 14:30 hours on March 26, 2008). That being so, contrary to the petitioners' position, and on the basis of what has been said, the existence of special procedures protected under Article 208 bis of the Rules of the Legislative Assembly (now 234 bis) and their use in processing certain bills that conform to the guidelines enumerated in that article does not infringe the democratic principle or the principles of political participation, representation, and amendment, insofar as the decision to use a special procedure is adopted by two-thirds of the legislators — since approval by that qualified majority implies the protection of minority rights as a guiding criterion to prevent abuses or the tyranny of majorities while, at the same time, without prejudice to the respect owed to majority decisions, allowing minorities to exercise the right to be heard and to participate through their vote in decision-making, particularly in acts of this kind which, by virtue of their significance, go to the very essence and reason for being of the representative system. Accordingly, the Court reiterates its position that Article 208 bis of the Rules of the Legislative Assembly, now Article 234 bis, is constitutional under the conditions indicated.
X.Drafted by Justice Hernández López. On the use of Article 208 bis (now 234 bis) of the Rules of the Legislative Assembly for processing legislative file No. 19.922. The petitioners argue that, pursuant to the provisions of Article 208 bis (now 234 bis) of the Rules of the Legislative Assembly, the Assembly applied a special legislative procedure to a matter that, in their view, should not have been heard through that procedure, because — given the subject matter, content, and socioeconomic consequences of the bill processed under file No. 19.922 — approval of the bill required a qualified majority and the measured, more carefully studied process entailed by the ordinary legislative formation procedure. This specific issue was already examined by the Court in judgment No. 2018-005758 of 15:40 hours on April 12, 2018, in which the Court heard the Optional Legislative Consultation filed by several legislators in connection with the bill processed under legislative file No. 19.922, and, insofar as relevant, this Court ruled as follows:
"(…) Now, from the foregoing it is apparent that the contested procedure was created on the basis of numeral 208 bis of the Rules of the Legislative Assembly, which establishes the possibility that, through a point of order motion approved by two-thirds of the votes of the total membership of the Legislative Assembly, special procedures may be created for bills whose approval requires an absolute majority, provided that the democratic principle and the right of amendment are respected, and that the matter does not involve the approval of administrative contracts, the sale of State assets, the opening of State monopolies, or international agreements. Thus, that provision seeks to ensure that bills of interest to Parliament can be processed without major obstacles, through the establishment of rules that facilitate their development, provided that the guarantees set forth in that same numeral are respected. With that clarified, it must then be analyzed whether the special procedure approved by the Legislative Assembly at ordinary session number 37 of June 30, 2016, in application of the provisions of Article 208 bis of the Rules of the Legislative Assembly, does or does not present the defects identified by the consultants (…)" (judgment 2018-005758 of 15:40 hours on April 12, 2018).
To conduct this analysis, that judgment transcribed nearly the entirety — only insofar as relevant to that consultation — of the procedure under Article 208 bis approved by the legislators for the processing of the bill in legislative file No. 19.922. For purposes of this unconstitutionality action, it is essential to transcribe it in full so that it may serve as theoretical context for the analysis of the arguments raised by the petitioners. As may be inferred from legislative file No. 19.922, folios 87 and 90, on June 30, 2016, a Point of Order Motion was submitted to the Plenary expressly stating the following:
"From several legislators:
For the following special procedure to be applied, pursuant to Article 208 bis of the Rules of the Legislative Assembly, to Legislative File No. 19.922, 'Law for the comprehensive reform of the various pension systems and related regulations.'
Whereas
1. CREATION OF A SPECIAL COMMITTEE:
a.- A special committee is hereby created that shall be responsible for rendering its opinion on File No. 19.922, "Law to rationalize public expenditure," to be composed of the following legislators: 3 from Partido Liberación Nacional, 2 from Partido Acción Ciudadana, 1 from Partido Frente Amplio, 1 from Partido Unidad Social Cristiana, 1 from Partido Movimiento Libertario, and 1 from the one- or two-member legislative caucuses.
b.- This committee shall have a period of up to four calendar months counted from its installation to render the respective opinions, and this period may be extended only once, for a maximum of 7 calendar days, by means of a point of order motion approved by two-thirds of the members of the Legislative Assembly.
a.- Motions shall be heard in ascending order of the articles, giving priority processing to substitute-text motions. When there are several substantive motions on the same article, they shall be heard in order of submission.
b.- The sponsor of a substantive motion may address it for a period of five minutes. One legislator in favor and one against may also take the floor for a period of five minutes each for each motion.
c.- In defense of review motions, only the sponsoring legislator may take the floor for five minutes. Motions heard at the last session of the Committee prior to the expiration of the deadline must be reviewed at that same session. If review is granted, the matter shall revert to the status it was in before the question that gave rise to the review was voted upon.
d.- Only legislator members of the Committee may submit points of order, except in the case of appeal motions regarding the admissibility of substantive motions ruled upon by the Committee Chair. No legislator may submit more than two points of order per session. To address these motions, the sponsoring legislator may take the floor for up to five minutes; the floor may not be ceded in whole or in part. With respect to points of order processed by the committee, a review motion may be filed on which no one may take the floor.
e- Deputies may appeal rulings issued by the Commission Chairperson with respect to this legislative file immediately after they are issued, and shall have a maximum of five minutes to present their defense. If there are multiple proponents, they may jointly justify their appeal for up to five minutes. If multiple appeal motions are filed regarding the same ruling, the proponents may jointly justify it for a period not exceeding five minutes, with the floor being granted in the order in which the appeal motions were filed, and voting on all of them shall take place in a single act. The Chairperson may take the floor for a period of five minutes.
f.- If, upon expiration of the deadline for issuing a committee report, substantive motions remain pending consideration, the deadline shall be deemed extended by two business days, during which the Commission Chairperson shall devote the subsequent sessions as necessary to address the pending motions. During these sessions, the motions shall be put to a vote without any debate.
g- Motions for reconsideration (mociones de revisión) that must be considered during this extension shall likewise not be debated. Motions considered during the final session must be reviewed in that same session, so that all actions taken therein shall become final at the close of that session. Once consideration of the motions is complete, the Chairperson shall grant the floor for debate on the merits to any Deputies who so request, for a period of up to ten minutes each. The floor may not be yielded in whole or in part. In any event, the Chairperson shall declare debate on the bill closed no later than 23:30 hours of the session immediately following the commencement of debate on the merits, and shall put the bill to a vote. Notwithstanding the foregoing, the Chairperson may declare debate closed at any moment when no Deputy requests the floor.
h- If, during the consideration of the file in its committee stage, a motion for a substitute text is approved, or when the committee agrees on changes that substantially modify the bill, the Commission Chairperson shall request that the Legislative Directorate agree to its publication in the Official Gazette La Gaceta in order to safeguard the Constitutional Principle of Public Notice, and consideration of the bill shall be suspended, and the corresponding consultations shall likewise be carried out. If, after eight business days have elapsed, 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 the bill.
i- The committee reports, both majority and minority, shall be submitted to the Directorate Secretariat within 2 business days following the date on which the vote on the bill in Committee becomes final.
j.- One business day after the close of the deadline established in this motion for the submission of committee reports, the bill shall be included on the Plenary's Order of Business. Before consideration of the matter begins, the Chairperson of the Legislative Assembly shall bring the report or reports to the attention of the deputies by whatever means is deemed most appropriate. The committee reports shall necessarily include the full text of the recommended bill.
3. EXTENSION OF THE DEADLINE FOR ISSUING A COMMITTEE REPORT:
a.- The members of the committee may, by means of a point-of-order motion (moción de orden), agree on a single occasion to request that the Plenary of the Legislative Assembly extend the deadline for issuing a committee report by up to 7 calendar days.
b.- This request must be submitted by means of a point-of-order motion and shall be considered by the Plenary of the Legislative Assembly with priority over any other matter at the time of its submission, and its approval shall require an affirmative vote of an absolute majority of the deputies present.
4- REGULAR AND SPECIAL SESSIONS:
a.- The sessions of this special committee shall take priority over those of any other permanent, standing-special, or special committee.
b.- This committee shall meet every Monday, Tuesday, Wednesday, Thursday, and Friday from 9:00 to 12:00 hours. On Fridays, Saturdays, and Sundays, the Committee may meet from 9:30 to 23:30 hours; however, the committee may modify the schedule established herein by agreement adopted by an absolute majority of the total membership of the Committee.
c.- The Commission Chairperson may convene all extraordinary sessions deemed necessary, with a minimum of 24 hours' advance notice.
d.- Sessions of this committee shall be deemed cancelled when the Legislative Plenary agrees to hold extraordinary sessions during the same time slot.
e.- In matters not addressed herein, the rules and procedures of the Permanent and Special Committees shall apply to the extent relevant.
a.- Plenary proceedings shall commence with a general explanation of the text by the committee reporters. For each committee report, the signatories may collectively or individually take the floor for a period not exceeding ten minutes in total.
b.- Upon conclusion of the explanation of the Committee Reports, debate on the bill shall begin.
a.- Substantive motions shall be in order only when submitted to the Directorate during the first two debate sessions on the bill. During the second of those sessions, Deputies may submit motions until the hour at which that session ends. The Chairperson shall bring them to the attention of the Deputies by whatever means is deemed most appropriate.
b.- The Chairperson of the Legislative Assembly shall determine the admissibility of substantive motions in accordance with the rules set forth in this motion. The Chairperson shall likewise determine whether motions are to be debated jointly, grouping them by Deputy. The Chairperson shall also proceed to group for debate in a single act those motions that are identical or reasonably equivalent but originate from different Deputies, in which case they shall be grouped by content, regardless of who proposed them. As a general rule, each Deputy may submit a single substantive motion per article, whether to amend, supplement, or repeal it in its entirety. With respect to "complex" articles, the rules set forth below shall apply. If an article contains multiple amendments, abrogations, or additions, a single motion may be submitted for each amendment, abrogation, or addition. In such a case, the article shall be understood to be a complex article within the meaning established by the Constitutional Chamber in ruling No. 3220-00, in which it held that the rule of submitting a single motion per amendment, abrogation, and addition "may mean that, with respect to a single complex article, by virtue of its addressing multiple subjects or containing various subparagraphs, a deputy may exercise the right of amendment with respect to each of such subjects or subparagraphs (...)" (Voto 3220-2000, Considerando XII).
Accordingly, in application of the principles of in dubio pro libertate and pro homine, and in furtherance of the right of amendment, a complex article is one that regulates within itself more than one subject matter (more than one purpose or theme), or that sets out an enumeration or detailed list of various contents. This includes articles that contain multiple subparagraphs, a list of definitions, or multiple paragraphs in which they specifically amend, repeal, or supplement other laws, subject matters, or regulate different provisions of the same bill.
Each Deputy may submit a single motion to introduce one or more new chapters, or a substitute text.
Each Deputy may submit a single motion per article of the bill to add either a new article, a new paragraph, or a new subparagraph.
c.- When one or more Deputies submit identical or reasonably equivalent motions, they shall be admitted by the Chairperson so that they may be debated in a single act, though voted on individually.
d.- When similar motions are submitted by the same Deputy, they shall be grouped for debate in a single act and shall be voted on individually.
e.- When motions are submitted that introduce a new legal institution (instituto jurídico) and others that further develop it, the Chairperson of the Legislative Assembly shall group these motions, with the substantive motion that includes the legal institution being considered first, such that if that motion is defeated, those subsequent motions aimed at establishing the characteristics of that institution shall be rejected by reason of accessoriness, on the basis of their effective connection thereto. These motions shall be voted on individually without any debate. This rejection is grounded in the fact that the Committee ruled against the creation of the institution, making it irrelevant to subsequently debate its characteristics. (Voto 3220-2000. Sala Constitucional de la Corte Suprema de Justicia).
f.- Motions whose content is unrelated to the bill shall not be in order. The content of motions that is consistent with the essential purpose of the bill shall be understood to be related thereto, as the Constitutional Chamber has consistently held.
g.- Upon expiration of the deadline for submitting substantive motions, the Assembly Chairperson shall determine the admissibility of the motions in accordance with the rules established herein. In the same ruling, the Chairperson shall carry out the grouping of motions that must be debated in a single act.
The Chairperson may suspend consideration of the file until the issuance of the corresponding ruling. Likewise, the Chairperson shall bring such motions to the attention of the deputies by whatever means is deemed most appropriate.
h.- Once the ruling issued by the Chairperson on admissibility becomes final, the substantive motions shall immediately be referred to the Reporting Committee, which shall render a report to the Plenary within eight calendar days of receiving the motions.
i.- In order to meet the established deadline, non-business days shall be deemed enabled for the Committee to consider the aforementioned motions.
j.- Substantive motions shall be considered in the Committee in ascending order of the articles of the bill.
k.- Substantive motions that have been submitted shall be deemed waived of the reading requirement. Copies of the motions referred by the Legislative Plenary must be delivered to each Deputy member of the Committee.
l.- The proponent or proponents of the motion may address the motion for a period of 5 minutes, either individually or jointly. One Deputy in favor and one Deputy in opposition may also take the floor for a period of 5 minutes each.
m.- Identical motions submitted by multiple Deputies and grouped by the Chairperson of the Legislative Assembly shall be debated in a single act, such that all Deputies who are proponents of the various motions may take the floor within a single five-minute period, whether only one of them addresses the motions or several of them do so. One Deputy in favor and one Deputy in opposition may also take the floor for a period of 5 minutes each. Once the motions have been debated, each shall be voted on individually. At this stage, the act of the Commission Chairperson in putting to debate the motions previously grouped by the Assembly Chairperson is not subject to appeal. The same procedure shall apply to motions grouped under a single Deputy.
n.- Motions for reconsideration may only be submitted by Deputies who are members of the Reporting Committee (Comisión Dictaminadora). To speak in defense of the reconsideration, the proposing Deputy or Deputies may take the floor for a period that, whether individually or jointly, does not exceed 2 minutes.
o.- Once the deadline for submitting the report has expired, if there are motions still pending consideration, the deadline for submitting the report shall be deemed automatically extended, the pending motions shall be considered as having been debated, and the Committee shall proceed to vote on them one by one. Motions for reconsideration that must be considered during the extension period shall likewise not be debated. Motions considered during the last session must be reviewed in that same session, so that all actions taken therein shall become final in that session.
p.- Only Deputies who are members of the Committee may submit points of order (mociones de orden). No Deputy may submit more than two points of order per session. To speak to such motions, the proposing Deputy or Deputies may take the floor for a period that, whether individually or jointly, does not exceed two minutes.
q.- Deputies may appeal rulings issued by the Chair of the Committee with effect on this case file, immediately after they are issued, for which purpose they shall have a period of five minutes. In any event, if there are multiple appellants with respect to a single ruling, they shall exercise the right to speak for a combined total of up to thirty minutes. Within that general period, each Deputy shall have the right to take the floor for up to five minutes each. The right to speak shall be exercised in the order in which the appeal motions were submitted, and the vote on all of them shall be taken in a single act.
a.- Motions for reinstatement shall be received during two sessions, counted from the moment the Chair notifies the full Assembly (Plenario) that the Reporting Committee's report on the substantive motions has been received. Deputies may submit such motions up until the time the second session concludes. For the purpose of receiving motions, and should that second session be an ordinary session, the Chair of the Legislative Assembly may extend the close of that session beyond the stated hour. The Chair shall make the admitted motions known to the Deputies by whatever means is deemed most appropriate.
The Chair of the Legislative Assembly shall determine the admissibility of motions for reinstatement in accordance with the rules set forth in this motion. The Chair shall likewise determine whether they are to be debated jointly, grouping them by Deputy, except where motions from several legislators are identical or reasonably equivalent, in which case they shall be grouped by content regardless of who proposed them. The Chair shall make them known to the Deputies by whatever means is deemed most appropriate.
The Chair of the Legislative Assembly shall determine the admissibility of motions for reinstatement in accordance with the rules set forth in this motion. The Chair shall likewise determine whether they are to be debated jointly, grouping them by Deputy, except where motions from several legislators are identical or reasonably equivalent, in which case they shall be grouped by content regardless of who proposed them. The Chair shall make them known to the Deputies by whatever means is deemed most appropriate. A Deputy may submit only one substantive motion per article, whether to amend, add to, or repeal it in its entirety, even when dealing with "complex" articles in the sense described below. If an article contains several amendments, abrogations, or additions, one single motion may be submitted for each amendment, abrogation, or addition. In such a case, the article shall be understood to be complex within the meaning established by the Constitutional Chamber in judgment No. 3220-00, in which it held that the rule of submitting only one motion per amendment, abrogation, and addition "may mean that, with respect to a single complex article—because it addresses several topics or contains various subsections—a Deputy may exercise the right of amendment with respect to each of those topics or subsections (...)" (Voto 3220-2000, Considerando XII).
Each Deputy may submit only one motion for reinstatement whose underlying substantive motion seeks to introduce one or more new chapters, or a substitute text.
Each Deputy may submit only one motion for reinstatement per article of the bill, whose underlying substantive motion seeks to add either a new article, a new paragraph, or a new subsection.
b.- When one or more Deputies submit identical or reasonably equivalent motions, the Chair shall admit them so that they are debated in a single act, although voted on individually.
c.- When similar motions are submitted, they shall be grouped together for debate in a single act and shall be voted on individually.
d.- When motions are submitted that add a new legal institution (instituto jurídico) and others that develop it, the Chair of the Legislative Assembly shall group these motions, considering first the substantive motion that includes the legal institution, so that if that motion is defeated, subsequent motions aimed at establishing the characteristics of that institution shall be rejected by reason of accessoriness, on account of their effective connection. Such rejection is grounded in the fact that the full Assembly has ruled against the creation of the institution, making further debate on its characteristics irrelevant. (Voto 3220-2000. Constitutional Chamber of the Supreme Court of Justice).
e.- Reinstatement of motions whose content is unconnected to the bill shall not be admissible. The content of motions shall be deemed connected when it is consistent with the essential purpose of the bill or committee report to which they are submitted, as the Constitutional Chamber has consistently held.
f.- Once the deadline for submitting motions for reinstatement has expired, the Chair shall determine the admissibility of the motions in accordance with the rules set forth herein. In the same ruling, the Chair shall group the motions that must be considered in a single act. For this purpose, the Chair may suspend consideration of the case file until the corresponding ruling is issued. Likewise, the Chair shall make such motions known to the Deputies by whatever means is deemed most appropriate.
g.- Motions for reinstatement shall be considered in the full Assembly following the ascending order of the articles. In the event that motions rejected in Committee without having been debated are reinstated, they shall take priority when considered by the full Assembly over motions that were debated in Committee.
h.- A motion for reinstatement is a point of order and its proposers shall have a period that, whether individually or jointly, does not exceed five minutes. If approved, the full Assembly shall be deemed to have converted into a General Committee (Comisión General) for the purpose of considering the attached substantive motion, on which all Deputies who so request may take the floor for up to five minutes each.
i.- Motions for reinstatement and reconsideration shall be deemed exempt from being read aloud. In any event, the Chair of the Legislative Assembly shall instruct the Secretariat of the Governing Board to make available to the legislators on the internal network, as promptly as circumstances allow, a compilation of the admitted motions for reinstatement and the order in which they will be considered.
a.- Only one motion seeking to refer the bill back to Committee may be submitted per session. Only the proposing Deputy or Deputies may take the floor, for a period that, whether individually or jointly, does not exceed five minutes.
b.- Only five points of order other than motions for reinstatement may be processed per session. To defend such motions, the proposing Deputy or Deputies shall have the right to speak for a period that, whether individually or jointly, does not exceed five minutes. Both in the procedure followed in the full Assembly and in Committee, motions seeking to alter or modify the agenda shall not be admissible.
c.- A Deputy has the right to request reconsideration of the declarations, agreements, and resolutions adopted by the Assembly. Reconsideration is available only once and must be requested no later than immediately before the approval of the corresponding minutes in the following session. However, when dealing with decrees and agreements definitively approved at the close of an ordinary or extraordinary session period, the request for reconsideration must be submitted in the same session in which such approval was made. If the Assembly grants the reconsideration, the matter shall revert to the state it was in before the vote that gave rise to the reconsideration was taken.
Motions for reconsideration shall be considered at the place the subject matter occupied on the agenda at the time reconsideration was requested; the Chair shall determine the appropriate moment for consideration of the reconsideration within the relevant section.
When the Assembly considers the reconsideration of any matter of any nature, the Deputy who requested it may take the floor to address it for a non-extendable period of two minutes, except in the case of reconsideration of motions for reinstatement, which shall be considered without any debate.
d.- Deputies may appeal rulings issued by the Chair of the Legislative Assembly with effect on this case file, immediately after they are issued, for which purpose they shall have a period of five minutes. In any event, if there are multiple appellants with respect to a single ruling, they shall exercise the right to speak for a combined total of up to ten minutes. Within that general period, each Deputy shall have the right to take the floor for up to five minutes each. The right to speak shall be exercised in the order in which the appeal motions were submitted, and the vote on all of them shall be taken in a single act.
e.- In any event, both the Chair of the Legislative Assembly and the Chair of the Reporting Committee may continue with consideration of the case file when, due to material impossibility, the technical secretariat does not have the minutes ready, leaving their approval pending until the moment they become available.
a.- Once consideration of the motions for reinstatement has concluded, substantive debate shall proceed, for which each Deputy may take the floor for a period of 15 minutes in the first debate and 10 minutes in the second debate.
b.- Once the report on the substantive motions processed by the Reporting Committee has been received, the full Assembly shall have twenty sessions to consider the motions for reinstatement and conduct substantive debate on the bill.
c.- If, once those sessions have expired, motions for reinstatement or substantive motions attached to approved reinstatements remain pending consideration, the Chair shall dedicate as many subsequent sessions as necessary to consider the pending motions. During these sessions, the motions shall be put to a vote without any debate. Motions for reconsideration that must be considered during this extension period shall likewise not be debated. Once consideration of the motions has concluded, the Chair shall grant the floor for substantive debate to Deputies who so request, for a period of up to ten minutes in both the first and second debates. In any event, the Chair shall declare the bill as having been fully debated no later than 23:30 hours of the session immediately following the commencement of substantive debate, and shall submit the bill to a vote. Nevertheless, the Chair may declare the bill as having been fully debated at the moment when no Deputy requests the floor.
The Legislative Plenary shall hold extraordinary sessions on Mondays, Tuesdays, and Wednesdays from 9:00 a.m. to 12:30 p.m. to consider this bill.
The Reporting Committee shall hold extraordinary sessions exclusively 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 sessions of the Committees with Full Legislative Authority (Comisiones con Potestad Legislativa Plena). In addition, it shall hold sessions every day from 9:30 a.m. to 12:30 p.m. On Fridays, Saturdays, and Sundays, the Committee shall hold sessions from 9:30 a.m. to 11:30 p.m., and the Committee may modify the established session schedule by agreement adopted by an absolute majority. The Committee's sessions shall be deemed cancelled when the Legislative Plenary agrees to hold extraordinary morning sessions. In any event, the Committee may continue to meet for 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 foregoing procedural motion (moción de orden) was considered at ordinary session No. 37 of the Plenary of the Legislative Assembly on June 30, 2016, having been approved by 39 deputies in favor and 10 against, with the following statement read verbatim at the time of the vote:
"Those in agreement that this matter be processed under article 208 bis pursuant to the motion submitted to file 19.922 regarding Judicial Branch pensions, on the terms explained and as set forth in the motion, shall so indicate by rising. Forty-nine members of the Assembly are present; thirty-eight votes are required for approval. Thirty-nine deputies in favor, ten against, approved" (folio 90 of legislative file No. 19.922).
In judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, the Court analyzed the constitutional challenges that the consulting deputies raised at that time, which concerned the following:
"From the foregoing it follows that legislative file No. 19.922 established a broad procedure for the submission of motions, which, while it does in fact provide for certain particularities regarding the number of motions, the time allowed to argue them, and the moments at which they may be submitted, this does not necessarily entail a violation of the principles and rights invoked by the consulting parties. In that regard, the fact that during committee proceedings only the legislators who are members of that committee may submit procedural motions does not constitute a violation of the principles of equality and democracy, nor of the right of amendment, since it is the deputies who are members of the Committee who know which matters must be raised through that type of motion, given that they are the ones who have been present during this stage of the legislative process and therefore have greater knowledge of the committee's procedural matters, such as, for example, the granting of a hearing to specific organizations; moreover, member deputies are not in the same position as non-member deputies, and thus the invocation of the equality principle is inapplicable for the simple reason that they are not in the same situation or condition.
It should be noted that the Rules of Procedure of the Legislative Assembly prevent non-member deputies of the Committees with Full Legislative Authority, Permanent Committees, and Special Committees from submitting reconsideration motions (see articles 3, 4, 5 subsections 5) and 6), 6, and 7 of the Rules of Procedure of the Legislative Assembly). Likewise, the limitation on the number of motions that may be submitted, the time available to argue them, and the moments at which they may be raised is not unconstitutional, insofar as it responds to the rules set for this particular legislative file under article 208 bis, and which are aimed at expediting its progress and avoiding unnecessary delays in the processing of a procedure that concerns a matter of significance. Furthermore, it should be noted that from an examination of the legislative file it is clear that both in Committee and in the Plenary, the deputies had the opportunity to discuss at length various aspects of the legislative file that were of interest to them, and could even bring representatives of various institutions—such as the School of Economic Sciences of the Universidad de Costa Rica, the Superintendency of Pensions, the Judicial Branch, and others—through procedural motions.
It is likewise apparent that during the Plenary Legislative sessions of September 4 and 5, 2017, substantive motions were submitted, the admissibility of which was resolved by the Presidency of the Directorate through a ruling read at session No. 67 on September 19, 2017, and which were subsequently debated in the Plenary sessions of September 20 and 28, 2017. Finally, it has been established that through a ruling of the Presidency of the Directorate, adopted at session No. 78 on October 11, 2017, a decision was rendered on the admissibility of the reiteration motions (mociones de reiteración) filed by the deputies, which were analyzed by the Plenary at the sessions of October 17, 18, 24, 25, and 30, 2017. Now, the Court considers it clear from the foregoing that the deputies had the opportunity to exercise the right of amendment with respect to the bill under review, as well as to submit the procedural, substantive, and reiteration motions they deemed appropriate, and therefore finds that there has been no violation whatsoever of the principles and rights mentioned by the consulting parties." That being so, with regard to the matters set out above that were already analyzed in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, and that are now reiterated in this action, the petitioners must abide by what was stated therein, since the Court finds that there is no new ground or argument with respect to those specific points that would warrant a departure from the position already expressed, and therefore, as to those specific aspects, the procedure provided for in article 208 bis of the Rules of Procedure of the Legislative Assembly (now 234 bis) conforms to constitutional law.
In addition to the foregoing, it must be recalled that the Court has been emphatic that it must not interfere with Parliament's right of self-regulation, except where constitutional law—that is, the body of constitutional values, principles, and norms—is violated. Accordingly, the Court's powers in this area are exercised from the perspective of an arbiter that moderates and restrains excesses but does not interfere with an intrinsic constitutional power granted to another constitutional body, such that its intervention would be legitimate only in the face of evident or egregious violations of the constitutional principles governing parliamentary law (see judgments of this Court Nos. 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 Justice Castillo Víquez. On other allegations concerning the application of article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly to legislative file 19.922. It should be noted that the actions of unconstitutionality under review go beyond what the Members of Congress raised in the Optional Consultation that gave rise to judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018. In that regard, the petitioners contend that the motion to process legislative file 19.922 under the expedited procedure of article 208 bis (now 234 bis) was introduced on June 30, 2016, at ordinary session No. 37 of the Legislative Plenary, and they argue that, despite the fact that what was sought was authorization to apply a procedure that is exceptional and rigorous, when the proposal was made it was not subjected to the established process for introducing this type of proposal—a process that is likewise extraordinary and formal. In that regard, the petitioners hold that the parliamentary procedure was violated for the following reasons:
Having been raised by the petitioners, the Court must proceed to analyze these arguments, and to that end it is essential to transcribe the articles of the Rules of Procedure of the Legislative Assembly cited by the petitioning party in order to understand what is being proposed:
"Article 35.- Order of Business and Parliamentary Agenda The order of business for plenary sessions 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. Internal governance matters.
4. Oversight, accountability, and other political matters, to be processed in the following order:
5. Discussion of bills, which shall be taken up in the following order:
If sixty minutes have elapsed in consideration of the matters listed in paragraphs 1, 2, 3, and 4 without exhausting them, their discussion shall be suspended so that bills may be taken up immediately in accordance with paragraph 5. During these first sixty minutes, no bills shall be considered.
Matters that, by constitutional or regulatory provision, must be acted upon within a specified period shall be included in the appropriate item of the session's agenda, in a position of preference, until their final processing.
The Parliamentary Agenda shall consist of all matters that the Plenary is competent to consider and decide. For purposes of ordering, these shall be entered in the corresponding chapter of the session's agenda in the following manner:
a. Unanimous affirmative committee reports.
b. Majority affirmative committee reports.
c. The respective committee reports shall be ordered according to the chronological order of their submission to the Office of the Directorate's Secretariat.
(The preceding paragraph was thus amended through session N° 145 of February 21, 2012)
d. Bills exempted from all procedural steps shall be processed in the manner provided for unanimous affirmative committee reports and shall be deemed submitted on the date on which the motion for exemption was approved.
(Thus amended by Agreement N° 6040 of December 10, 2001)." "Article 153.- Points of Order Points of order may be raised at any stage of debate, unless this Regulation expressly precludes it. Such motions shall be considered immediately after being presented and accepted as such by the President. To explain the content of the motion, the proponent or proponents shall have a period that, individually or collectively, does not exceed five minutes.
(Amended through session N° 5020 of November 8, 1999)" "Article 205.- Processing of Parliamentary Agreements Bills for the issuance of agreements concerning the internal governance of the Assembly, as well as draft agreements to be adopted in the exercise of the powers enumerated in subparagraphs 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 legislator or legislators who introduce or sponsor them, or by the Minister of the relevant portfolio when the bill originates with the Executive Branch. They must likewise be read by the Secretariat. The Assembly shall consider and resolve them without adhering to the procedural steps set forth in the preceding article.
Nevertheless, the Presidency shall order the bill referred to a specially appointed committee for the case, setting a reasonable period of no fewer than three business days to report, whenever the matter is complex or when this Regulation so requires.
(Its numbering was renumbered through session N° 31 of March 4, 2019, which transferred it from former article 205 to 231)" "Article 208.- Non-Derogation in Individual Cases Except in cases where the Regulation itself expressly provides otherwise, motions aimed at rendering it inapplicable to specific cases shall not be admissible.
(Its numbering was renumbered through session N° 31 of March 4, 2019, which transferred it from former article 208 to 234)" "Article 208 bis.- Special Procedures By means of a point of order approved by two thirds of its votes, the Legislative Assembly may establish special procedures for processing amendments to its Regulation and bills whose approval requires an absolute majority, excluding 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 majority 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 renumbered through session N° 31 of March 4, 2019, which transferred it from former article 208 bis to 234 bis)." Article 207 is reproduced below, and not in the usual order, for reasons that will be explained forthwith:
"Article 207.- Amendments to the Regulation Any total or partial amendment to this Regulation, as well as the interpretation of any of its provisions, requires, in order to be approved, two thirds of the votes of all members of the Assembly.
Amendments must be made through the procedure established in article 124 of the Political Constitution.
(Its numbering was renumbered through session N° 31 of March 4, 2019, which transferred it from former article 207 to 233)" As may be gathered from the National System of Current Legislation (SINALEVI) and as affirmed by the petitioners, former article 207 of the Regulation of the Legislative Assembly — which now corresponds to numeral 233 — was interpreted by parliamentary agreement N° 4084, adopted in session N° 24 of June 10, 1999, and published in La Gaceta N° 129 of July 5, 1999, pursuant to which:
"Sole Article. — The processing of bills for total or partial amendment of the Regulation of the Legislative Assembly shall be carried out in accordance with the following provisions:
1. The processing of bills for total or partial amendment of the Regulation of the Legislative Assembly shall begin with the reading of the bill. Thereafter, 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, consideration of substantive motions (mociones de fondo) shall proceed. These motions shall be considered directly by the Plenary.
3. Motions shall be debated in the order of their submission. Nevertheless, the President may establish the order of debate of the motions in accordance with the provisions of articles 124 and 163 of the Regulation.
4. Each legislator shall have the right to take the floor for fifteen minutes per motion.
5. Once consideration of the substantive motions is concluded, each legislator may take the floor for one hour to address the substance of the bill.
6. When the complexity of the bill or the number of motions submitted so warrants, the President may order, at any stage of the debate, that the bill be referred to a specially appointed committee for the case. In such case:
7. Once the report has been submitted, new substantive motions shall only be admissible when presented to the Directorate within the six business days following the date on which the Committee's report was submitted.
8. Substantive motions shall be referred to the reporting Committee, which must submit a report to the Plenary within the three business days following the expiration of the period referred to in the preceding paragraph. If, upon expiration of the period to submit the report, any motions still remain pending consideration, these shall be put to a vote without any debate. Motions accepted by the Committee shall be deemed incorporated into the text.
9. Substantive motions rejected by the Committee may be reintroduced by their proponents before the Plenary if it resolves to sit as a general committee to consider them. The motion for the Plenary to sit as a general committee shall be put to a vote after the proponent has explained the matter in a maximum of ten minutes. 10. Once the bill is approved, it shall be published in the Official Gazette." This agreement was challenged before this Court by means of constitutional challenge (acción de inconstitucionalidad) number 04-001310-0007-CO on the ground that its text had not been duly submitted as a draft agreement, nor published, nor exempted from procedural steps (article 177 of the Regulation), so that the petitioners considered that, in this specific case, there had been a non-application of the legislative procedure provisions (articles 205 of the Regulation and 124 of the Political Constitution), which is expressly prohibited under regulatory numeral 208. Upon analyzing the matter, the Court issued judgment number 2004-014986 of 12 hours 17 minutes on December 24, 2004, which dismissed the aforementioned constitutional challenge, stating, insofar as relevant, the following:
"(…) It is therefore clear that the conduct of the Legislative Assembly is in conformity with the law, by virtue of the provisions set forth in the constitutional norms and in Article 207 of the Rules of Procedure of the Legislative Assembly itself, which permits, through a legislative agreement, the interpretation of the norms of the Parliamentary Statute. Accordingly, in adopting agreements such as the one challenged, the self-regulatory power (potestad autonormativa) is being exercised in one of its sub-branches: the interpretation of internal norms, which derives directly from the provisions of Article 121, paragraph 22) of the Constitution, in connection with Articles 9 and 124 of the same body of law, which enshrine the exclusive attribution of the Legislative Assembly to enact its rules of procedure for its internal governance by means of a qualified vote. This does not concern the power to legislate, established in Article 121, paragraph 1) of the Political Constitution, in one of its applications: the authentic interpretation of laws.
In light of the foregoing, the first constitutional objection raised by the petitioners regarding the violation of Article 121, paragraph 1) of the Fundamental Charter must be dismissed (…) In the specific case at hand, agreement number 4084 is not unconstitutional, inasmuch as it was adopted by the Legislative Assembly in accordance with the self-regulatory power it holds by virtue of Article 121, paragraph 22) of the Political Constitution, and because — as will be shown below — the procedure established for the total or partial reform, or interpretation, of the Rules of Procedure of the Legislative Assembly is consistent with the pertinent constitutional and regulatory norms. Likewise, as the President of the Legislative Assembly explained, the challenged agreement was adopted in compliance with the requirements of the Political Constitution and the internal regulations themselves, that is, following an extensive debate and broad participation by the legislators, who proposed a series of substantive motions that resulted in amendments to the bill, culminating in its unanimous approval by the legislators present at the session of the tenth of June of nineteen ninety-nine, that is, with the votes of forty-eight legislators, surpassing the required majority — as reflected on folios 52 to 53 of the case file.
In light of the foregoing, the other claim of unconstitutionality raised by the petitioners must be rejected, insofar as it concerns the alleged disregard of essential legislative procedures, since from the moment of its introduction by the Legislative Directorate through the process of its discussion and final unanimous approval, the democratic principle was upheld; this is an agreement linked to the internal regulation of the Legislative Assembly that depends exclusively on the will of the legislators. It must also be added that the constitutional and regulatory procedures for its approval were fully complied with (…). It is thus the case that there is no constitutional or regulatory norm specifying the procedure to be followed for bills seeking the reform or interpretation of the Rules of Procedure of the Legislative Assembly, which has given rise to various parliamentary practices that have allowed the introduction and debate of an unlimited number of substantive motions directly in the Legislative Plenary, without any fixed time limit therefor, and various rules governing the right to speak have also been applied.
In this regard, the President of the Legislative Assembly is correct in pointing out that if the legislator fails to provide for or eliminate obscure regulatory provisions or parliamentary practices, he or she incurs in an evasion or breach of his or her constitutionally assigned duties; therefore, in seeking a solution to this situation, the Legislative Plenary — not its Directorate — unanimously adopted the interpretation now challenged (following an extensive debate in which all had the opportunity to participate), which sought to define the procedure to be followed for legislative reforms and interpretations, in order to ensure the proper processing and introduction of such bills. For this reason, it is consistent with the parliamentary legal order for an interpretive agreement such as the one challenged to fill the gaps present in legislative procedures, and this conduct does not run contrary to constitutional or regulatory procedures; on the contrary, through interpretation an agreement is adopted in strict adherence to the constitutional norm — Article 124 — which precisely delimits and integrates the written and unwritten norms that have shaped the procedure for the reform or interpretation of the Rules of Procedure of the Legislative Assembly.
(…) Thus, it may rightly be affirmed that this interpretation responds not so much to a social reality as to a need for legal certainty (seguridad jurídica) in legislative procedures, so that they may be clear, consensual, and not driven by transient political opportunities. In this manner, legislative agreement 4084 is not a literal interpretation of Articles 205 and 207 of the Rules of Procedure of the Legislative Assembly, as such an interpretation would not resolve the practical problems that arise in the processing of bills for the reform and interpretation of the Assembly's internal regulations. However, it cannot be regarded as an innovative activity — one that creates new norms — as the petitioners allege, given that what is being done is an integration of all elements into a single interpretation, within the existing legal framework; that is, the practices and regulatory norms applicable to reforms of the Rules of Procedure of the Legislative Assembly are organized and systematized — with the powers of the legislators being respected in every respect (the right of amendment, free and broad participation in parliamentary debate) — enacted in accordance with the self-regulatory power of the legislators (Articles 121, paragraph 22) and 124 of the Political Constitution).
This does not involve the superimposition of provisions from other extraordinary or external procedures upon the internal parliamentary regulations, so that the approved procedural norms are not superimposed upon, do not take priority over, and are not ranked above the existing norms; they are norms that serve as a complement filling a deficiency in the existing norms.
X.It should be noted how the reference to the regulatory norms is clear in the procedure for the processing of bills for the reform and interpretation of the Rules of Procedure of the Legislative Assembly as established in legislative agreement number 4084. Core aspects of the procedure that has been followed to this day in the discussion of proposals for such bills have been respected and maintained, as will be shown below. First, the agreement does not refer to constitutional Article 124, but rather to Article 124 of the Rules of Procedure, which is the one that authorizes the Presidents of ordinary permanent, special permanent, and special legislative committees to discuss, in ascending order, the substantive motions submitted regarding a bill. Second, the basic principles established in Article 124 of the Fundamental Charter are not disregarded; on the contrary, under the challenged interpretive agreement, proposals for reforms to the rules of procedure will follow the procedure applicable to legislative agreements, which in simplified form is as follows: the proposal is introduced by one or more legislators; it is read aloud, unless the Legislative Assembly approves a motion to waive the reading, by the affirmative vote of two-thirds of the legislators present; the President of the Assembly has the option of allowing its discussion directly in the Plenary or of referring it to a special committee, which is given a deadline of no less than three days to render its opinion; the proposed legislative agreement is then considered under the Internal Affairs Chapter.
During this process, legislators may introduce new motions or reiterate motions rejected in committee, with the latter taking priority over the former. Each legislator has the right to speak for fifteen minutes with respect to each motion, which are approved by an absolute majority of the legislators present. To address the substance of the proposal, each legislator is allotted sixty minutes. Third, participation and debate are not being restricted; the procedure remains essentially unchanged, with the sole exception that legislators are now permitted to reiterate substantive motions in the plenary when the bill has been reviewed by a special committee. Consequently, the action must also be dismissed insofar as it concerns the alleged creation of a new legislative procedure.
Finally, we address the alleged violation of democratic principles. The regulation of the organization, functioning, and procedures of an organ that is vital to the existence of the democratic system is a topic of the utmost importance. For this reason, the internal regulations of the Legislative Assembly must be inspired by democratic values and principles, so as to promote and achieve the institutional balance between the majority party and the opposition, and emerging political forces; between the organs of the State and in particular with the Executive Branch; between the mechanisms for reaching consensus and the rules for dissent; between the ability to adopt political decisions and the guarantee of an effective and responsible opposition; and between the power to legislate and the other attributions that the Political Constitution imposes on Parliament, in particular the function of political oversight, all of which had already been considered by this Tribunal on prior occasions, as indicated in judgment number 0990-92, in the passage quoted in Considerando III.- of this judgment.
Thus, among the fundamental principles that must be respected for legislative agreements to be adopted (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, as well as the due publicity of the matters being processed, so that they may be the product of the dialectic between majorities and minorities. The aim is to ensure that through legislative procedures the democratic principle is fulfilled: the integration of diverse political interests, which justifies reserving certain subject matters for Parliament (such as the imposition of sanctions and the establishment of taxes, for example).
XII.Agreement 4048 does not conflict with democratic principles, since it does not restrict the participation of members of the legislature or the debate on motions; it guarantees the right of amendment, the right to speak in defense of motions, and the right of majorities to make decisions. In this way, the agreement is more favorable and provides greater guarantees in respect of the democratic principles that must inform legislative procedures, since motions that could not be considered by the Committee due to the expiration of the time limit may be voted on without discussion, and, even if rejected, may be reiterated before the Plenary. Previously, motions were rejected because it was interpreted that the Plenary lacked jurisdiction on grounds of time; now, through interpretation, progress is made in the observance of democratic principles. When motions are analyzed and discussed in ascending order and in the order in which they were submitted, there is no room for manipulation that inhibits the scrutiny and analysis of controversial subjects — as the petitioners claim — because the parameter used for discussion is objective, so as to avoid situations of privilege; accordingly, the rule seeks to treat all members of the legislature equally. On the basis of these considerations, the alleged violation of democratic principles lacks any foundation and must therefore be dismissed" (judgment No. 8408-99 of 15:24 hours of 03 November 1999)."
Building on the foregoing, it is clear that Agreement 4084 is valid and constitutional, it being understood that the legislature's intent in adopting that agreement was to better organize and clarify the working procedure; and, in the view of this Tribunal, it respected democratic principles since it did not restrict the participation of the members of the legislature or the debate on motions, and it guaranteed the right of amendment, the right to speak in defense of motions, and the right of majorities to make decisions. Now, precisely along those same lines of organizing legislative work, it follows that, subsequently, at plenary session No. 47 of the Legislative Assembly on Thursday, 29 July 2004, and as a kind of complement in the same vein as the preceding agreement, the following agreement was adopted:
"Deputy Vargas Fallas, ladies and gentlemen of the legislature, you will observe that today's agenda is perhaps arranged differently from previous days.
We had spoken with the Faction Leaders to reorganize the agenda somewhat, particularly in the chapter on Internal Rules. You will note that under Internal Rules matters, amendments to the Rules of the Legislative Assembly appear first, since several months ago a motion to alter the order had been approved placing these draft agreements in that position on the agenda.
Following that, there were approximately thirty procedural motions of every kind: motions of order, motions for postponement, motions to waive procedural requirements, extensions for special committees, and others. This Presidency took the liberty of instructing the Secretariat of the Board of Directors to place these motions within the Internal Rules chapter, immediately after the amendments to the Rules, grouped by type, by category of motion.
In point (a) I mentioned amendments to the Rules; point (b) covers motions of order. Among the motions of order there would appear motions for postponement — of which there are none indicated — followed by motions of order pursuant to Article 153; then extensions for special committees; and lastly, motions to waive procedural requirements. This is so that each of the ladies and gentlemen of the legislature knows where the various procedural motions will be placed within the Internal Rules chapter.
Regarding the motion submitted by Deputy Vargas Fallas some weeks ago, this Presidency, exercising the powers conferred by Article 153 and duly advised by the advisory staff of the Secretariat of the Board of Directors, classified the motion of Deputy Vargas Fallas not as a motion of order, Deputy, but rather as a proposal by members of the legislature, since its content concerned not the order of proceedings but rather the substance of the procedures being conducted by the Special Committee referred to in that motion.
Therefore, Deputy, just as with postponements, and just as with the one we have just considered regarding permission for or overflight of an aircraft, I would ask that, in order to take it up in the future, you likewise submit a motion for postponement.
You will see, ladies and gentlemen of the legislature, that no motion for postponement appears. The reason it does not appear is that, since a motion for postponement has the same effect as a motion to alter the order but applies only to the day on which it is being processed, this Presidency considers that a motion for postponement that has been submitted but has not been discussed or voted on by the close of that very day should be archived, and any member of the legislature who wishes, in the future, to propose a new motion for postponement should submit it the following day, in order to keep the Internal Rules chapter of the agenda clean.
Having clarified this, please be advised that from today the Secretariat of the Board of Directors will have clear instructions to structure the agenda in the manner in which it appears today.
Thank you, ladies and gentlemen of the legislature." From both agreements, one may therefore discern a legislative intent to organize its work, to promote greater clarity and transparency in its function of legislating, and ultimately to give practical content to the democratic principle. It is understood that the primary purpose of the agenda is to assist with parliamentary procedure by organizing the matters to be addressed in a session, regardless of whether the session falls within an ordinary or extraordinary period; and, following this line of reasoning, it is logical that the agenda should be drawn up with the greatest possible clarity and precision, always on the assumption that the arrangement of the agenda is an activity internal to the "interna corporis" of the Legislative Assembly, as is determined by the Rules, which state in Article 35: "... The Parliamentary Agenda shall consist of all matters that fall within the Plenary's competence to consider and decide..." — an arrangement that the Court has recognized as part of the Parliament's inherent self-determination.
That said, as noted above, the Legislative Assembly's internal regulations must at all times respect democratic values and principles, in such a way as to promote and achieve the institutional balance among majority parties, the opposition, emerging forces, and minorities, all with a view to enabling the exercise of the democratic principle of participation and representation.
The petitioners argue that if parliamentary agreements No. 4084, adopted at session No. 24 of 10 June 1999, and the one issued at Session No. 47 of Thursday, 29 July 2004, are in force and are incorporated into the Rules of the Legislative Assembly as interpretive agreements thereof, their observance then becomes mandatory — and the legislature's intent to process legislative file 19.922 under special procedure 208 bis could not escape this requirement — bearing in mind that the Assembly's rules are a parameter of constitutionality and that the approval of a special procedure to process a specific file — such as 208 bis (now 234 bis) — entails an amendment to the rules. However, the petitioners argue that the fact that, at ordinary session No. 37 of the Legislative Plenary of 30 June 2016, the proposal to fast-track legislative file 19.922 was introduced without being submitted to the Plenary for consideration — following the order and form established both in the rules and in the interpretations referred to above — amounts to a substantial violation of procedure.
They add that Article 205, now Article 231 of the Rules, establishes that draft agreements concerning the internal rules of the Assembly — which is the case under examination here, since the approval of a special procedure for processing a file is an agreement concerning the Assembly's internal rules — must be submitted in writing, signed by the member or members of the legislature who initiate or second them, and must be read by the Secretariat; and that what those agreements seek, moreover, is to amend the rules through the mechanism permitted by 208 bis. Second, the agreements referred to above — No. 4084 adopted at session No. 24 of 10 June 1999, and the one issued at Session No. 47 of Thursday, 29 July 2004 — establish the manner in which that type of proposal shall be placed on the agenda; and, lastly, Article 35 of the rules establishes that the plenary session begins with: 1) Discussion and approval of the minutes; 2) Suspension of rights and guarantees, in accordance with subparagraph 7) of Article 121 of the Political Constitution; and 3) Internal Rules matters — which is precisely the point on the agenda at which the proposal in question should have been placed, a requirement that was not respected in the present case, since in legislative file 19.922 the said proposal was introduced to the Plenary on 30 June 2016 without any prior notice, was not submitted in writing, was not read by the Secretariat, was not subjected to the applicable procedure, and, furthermore, all of this was done without respecting the principle of parallelism of forms, under which things are undone in the same manner in which they were done.
The petitioners add that the proposal was not included within the legislative session under the space corresponding to internal rules, even though its consideration and processing should have occurred in the first part of the session, in order to safeguard the democratic principle, the constitutional rule of publicity, and the rights of members of the legislature to discussion, to broad democratic participation, and to representation. On the contrary, it is observed that the proposal was considered in the second part of the legislative session, even though that is the time established for first and second readings of draft legislation — a circumstance which, in the petitioners' view, diminishes the ability of all minority members of the legislature to exercise their rights and, in general, the ability of the Plenary to carry out its work within reasonable time frames, in a measured manner and consistent with the importance of its work as well as the responsibility assigned to it.
XII.Drafted by Justice Castillo Víquez. On the application of Article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly (Reglamento de la Asamblea Legislativa) to legislative file 19.922. In the case at hand, some of the petitioners allege that a defect in the legislative procedure has occurred, inasmuch as ordinary plenary session No. 37 of June 30, 2016, considered a point of order (moción de orden)—under Article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly—with the intent to create a special procedure for the processing of legislative file No. 19.922, and that such point of order was considered during the so-called "Second Part of the Session" of the Plenary. The petitioners allege, first, that it is not possible to approve a special procedure by means of a "point of order," since, pursuant to Article 207 of the Rules of Procedure of the Legislative Assembly, amendments to that body of rules are carried out by means of "resolutions" (acuerdos).
They further argue that Article 153 of the Rules of Procedure of the Legislative Assembly permits points of order "unless this Rules of Procedure expressly prohibits it." In addition, they contend that Article 35 of the Rules of Procedure of the Legislative Assembly establishes a strict order for the "agenda" (orden del día) of the Legislative Plenary, reserving the first part of the session for, among other matters, the internal rules of the Legislative Assembly, and reserving the second part for the discussion of first and second debates of bills in process. Accordingly, they maintain that Articles 35, 205, and 207 of the Rules of Procedure of the Legislative Assembly have been violated, in connection with the interpretation made by the Presidency of the Legislative Assembly through Resolution No. 4084, adopted in session No. 24 of June 10, 1999, and published in La Gaceta No. 129 of July 5, 1999.
This Court finds that, in the present case, no substantial or essential defect in the legislative procedure has occurred that would render the challenged legislation unconstitutional. The first point to be noted is that it is Article 208 bis (now 234 bis) of the Rules of Procedure of the Legislative Assembly itself that expressly provides that "by means of a point 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, excluding the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and treaties and international agreements regardless of the voting threshold 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 to say, we are not dealing with a non-application of the Rules of Procedure of the Legislative Assembly to the specific case, but rather with a special procedure established by the parliamentary statute itself. Likewise, as already noted in this same judgment, this Court has repeatedly held that the aforementioned Article 208 bis (now 234 bis) is compatible with Constitutional Law (values, principles, and rules). In accordance with the provisions of that article and with the case law of this Court, the constitutional regularity or validity of special procedures for processing bills, approved on the basis of the said Article 208 bis (now 234 bis), derives from the requirement that the corresponding point of order be approved by a qualified majority, that it apply to bills whose approval requires an absolute majority—subject to the exceptions contemplated in that same article—and that, in its structure, the democratic principle be respected and the right of amendment be safeguarded.
These requirements have been met in the present case. Indeed, when this Court previously considered the optional legislative constitutional consultation (file 17-017148-0007-CO) filed with respect to the then-pending bill for the "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa," legislative file 19.922, it had the opportunity to analyze the special procedure approved for this particular case and ultimately concluded, by vote 2018-005758 of 3:40 p.m. on April 12, 2018, that such procedure 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 by means of a point of order. In the first place, it is Article 234 bis itself that expressly provides that the special procedure may be applied by means of a point of order.
Second, it should be noted that, upon harmonizing the relevant provisions and thus reading Article 234 bis together with Article 153 of the same body of rules, points of order allow only the sponsor to speak for up to five minutes, whether individually or jointly. In the present case, as recorded at folios 87 and 88 of the legislative file[1], the President of the Legislative Assembly, departing from the provisions of the rules, granted the floor to Deputy Edgardo Araya to express his opposition. The rationale for not granting the floor during points of order has a specific purpose: they are designed to affect parliamentary procedure, reserving discussion for when substantive motions or the general debate on the bill are considered. It is therefore incorrect to maintain that the application of these rules violates the essential components of the democratic principle or of political pluralism—specifically, the right to take the floor, etc. Accordingly, this grievance must also be dismissed.
Finally, the fact that the respective point of order to approve the said special procedure was considered or discussed in the second part of the session rather than in the first part does not constitute—in the opinion of this Court—a substantial or essential defect in the legislative procedure that would render it unconstitutional. It must be reiterated, with respect to defects and nullities in parliamentary procedure, that invalidating defects are those that are substantial in character and that concern breaches of the essential elements of the democratic principle or of political pluralism, or that involve the omission of a requirement demanded by Constitutional Law. In this case, what is constitutionally relevant is that such resolution was voted on by a qualified majority, and that there existed the possibility of speaking in favor of the motion—indeed, the President even permitted speaking against it—rather than whether the motion was considered, discussed, and voted on in the first or second part of the session.
Furthermore, under a proper interpretation of Article 153 of the Rules of Procedure of the Legislative Assembly, and given the nature of the point of order—which affects parliamentary procedure—and the particular character of Parliamentary Law—the necessary channel for translating the results of political agreement into legislative resolutions—the term "debate" must be understood in its broad sense, and not in a restrictive one, and consequently applies to any moment of the session. Therefore, this Court finds that, with respect to this point, no procedural irregularity has occurred that would constitute a violation of an essential step in the legislative procedure capable of invalidating it.
XIII.Continued by Justice Castillo Víquez. Some petitioners also allege that the procedure approved for the bill processed under file 19.922 via Article 208 bis established a series of rules that were required to be strictly observed but were not, thereby violating procedural requirements such as the publication of substitute-text motions and the deadlines for issuing committee reports on the bill, among others. They argue that the application of the Article 208 bis procedure restricted the participation of deputies, the Judicial Branch, and other actors, and that despite the establishment of rules, those rules were not followed. They further contend that the procedure improperly eliminated and restricted the participation and representation of legislators, as well as their right of amendment, thereby violating the democratic principle. By establishing that substantive motions in the plenary would only be received during the first two days of debate on the bill, the participation of third parties in the law-formation process was restricted.
As explained above, the alleged defects are not substantial in character and therefore lack the force to invalidate the parliamentary procedure. The issue of publication will be addressed more fully in subsequent recitals. Finally, with regard to the restriction on the participation of deputies and third parties in the law-formation procedure, it would be logically inconsistent for this Court—having validated the type of special procedure authorized by the Parliamentary Statute—to take the contrary position that such procedure is unconstitutional on the grounds that deputies and third parties have a more limited opportunity to participate in the law-formation process, since to do so would result in a contradiction in logical reasoning. That is to say, if Article 208 bis—now 234 bis—is constitutional, then it follows that the more limited scope of participation is likewise constitutional.
XIV.Drafted by Justice Castillo Víquez. On the non-compliance with the special rules established for the processing of the Bill under Legislative File No. 19.922. In the constitutional challenges under review, the petitioners claim that another violation has occurred regarding compliance with the requirements of the Rules of Procedure of the Legislative Assembly and, above all, with the rules approved when the fast-track procedure—via Article 208 bis, now 234 bis—was decided upon for legislative file No. 19.922 by the Plenary of the Legislative Assembly on June 30, 2016, the relevant portion of which reads as follows:
"(…) So that, in accordance with the provisions of Article 208 bis of the Rules of Procedure of the Legislative Assembly, the following special procedure shall apply to Legislative File No. 19.922, 'Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa' (…)
Note that the same motion sets out — in detailed terms — the rules that must be observed at all times during the processing of the legislative initiative, and it cautions that the principles of Constitutional Law, as well as the doctrine established by the Sala Constitucional, must be respected. Notwithstanding the foregoing, the petitioners argue that said normative framework was not fully complied with by the legislators and, in that regard, they assert that the obligation to publish each and every one of the texts that were attached and approved in legislative file (expediente legislativo) No. 19.922 was specifically disregarded, even though such obligation had been established as one of the procedural rules under artículo 208 bis agreed upon on June 30, 2016, which, on this specific point, provided:
"(…)
h- If, during the committee's consideration of the file, a substitute-text motion (moción de texto sustitutivo) is approved, or when the committee agrees upon changes that substantially modify the bill, the Chair of the Committee shall request that the Directorio Legislativo agree to its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity (principio de publicidad), and consideration of the bill shall be suspended, with the corresponding consultations also being made. If, after eight business days, no response to the mandatory consultations referred to in this subsection h) has been received, the body consulted shall be deemed to have no objection to the bill (…).
Prior to analyzing the claim raised by the petitioners regarding the violation of the principle of publicity, it is necessary to provide an account of what occurred in legislative file 19.922 in order to clarify the situation, as well as to understand the scope of the petitioners' allegations. In that regard, it is observed at folio 41 that, on April 5, 2016, several Deputies (Diputados and Diputadas) submitted to the Asamblea Legislativa the bill processed under legislative file No. 19.922, entitled "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa," which contained 4 chapters through which it was intended to reform the following: a) Chapter I contained "Modificaciones y Adiciones al Régimen General de Pensiones con cargo al Presupuesto Nacional," Ley No. 7302 known as the "Ley Marco de Pensiones"; b) Chapter II regulated "Caducidad y Tope de Derechos de Pensión de la Ley No. 148," better known as the "Ley de Pensiones de Hacienda"; c) Chapter III established "Reformas a Otras Leyes," such as the Ley Orgánica del Sistema Bancario Nacional and its amendments, Ley No. 7605 repealing the pension system for deputies, the Ley de Protección del Trabajador No. 7983, the Ley del Régimen Privado de Pensiones Complementarias No. 7523, and Ley No. 4573, the Código Penal; d) finally, Chapter IV regulated the amendment to the Ley Orgánica del Poder Judicial No. 7333.
Upon receipt of said bill on that date, the President of the Asamblea Legislativa ordered it to be referred to the Standing Committee on Social Affairs (Comisión Permanente de Asuntos Sociales) for the issuance of the corresponding committee report (dictamen), and also directed that the original bill be transferred to the Departamento de Archivo, Investigación y Trámite for publication. According to a notice from that department dated June 8, 2016, the original bill was sent to the Imprenta Nacional for its respective publication in the Diario Oficial La Gaceta (folio 43). In turn, at the ordinary plenary session of the Legislative Plenary (Plenario Legislativo) on June 30, 2016, a motion of order was introduced which, as stated in the previous considerando, was introduced to be heard during the second part of the legislative session for consideration of Second Debates; a motion by several deputies (diputados and diputadas) for the special procedure under artículo 208 bis of the Reglamento de la Asamblea Legislativa to 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. It is worth noting that, at that session, the President of the Asamblea Legislativa clarified "that the base text will be that of file No. 19.651, which is incorporated as a substitute-text motion signed by all the legislative caucuses (fracciones), so that at the moment the artículo 208 bis procedure for file 19.922 begins, the substitute-text motion that uses as its basis the bill that had been presented by various organizations of the Poder Judicial will be considered. That is the base text that would occupy the discussion of bill 19.922, which would also be establishing its permanence in the respective committee for four months…". Now, pursuant to that legislative decision, from that moment forward, said legislative file would be processed in accordance with the procedural rules approved at that session and as authorized by artículo 208 bis of the Reglamento de la Asamblea Legislativa.
Regarding the publication of this bill which, as stated above, was processed on June 8, 2016 by the Departamento de Archivo, Investigación y Trámite, it must be noted that it became effective in Alcance número 110 of Diario Oficial La Gaceta Nº 126 of Thursday, June 30, 2016; however, it must be noted that the text that was published was the one originally submitted for consideration by the Asamblea Legislativa on April 5, 2016, which — as can be gathered from the legislative file — corresponded to the version presented by a group of deputies (diputados and diputadas). It is important to highlight here that, precisely on the day of that publication, was the day on which the Plenario Legislativo approved giving the legislative file its procedural route via artículo 208 bis of the rules, and also that the base text with which the Special Committee (Comisión Especial) would work would not be the one contained in file No. 19.922, but rather the one in file No. 19.651, which was being incorporated as a substitute-text motion signed by all the caucuses and which therefore constituted a different version from the one published that day; a version which, as was clarified by the President of the Asamblea Legislativa at that time — June 30, 2016 — corresponded to the bill presented by several deputies in agreement with the unions of the Poder Judicial, which was being processed under legislative file No. 19.651 entitled "Ley de Reforma al Título IX de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937 y sus reformas," and whose bill corresponded solely and exclusively to the legislators' interest in modifying the Sistema de Jubilaciones y Pensiones del Poder Judicial and not in relation to other regulations as did the original bill of file No. 19.922.
Having clarified the foregoing, it follows that subsequently, on July 5, 2016, the aforementioned 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 its processing could continue there; thereafter, on September 5 of the same year, at ordinary session No. 065 of the Plenario Legislativo, the committee was designated and named the "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'" (folios 116, 133, and 137), even though, as noted above, the objective of the Plenario was now solely to reform the Sistema de Jubilaciones y Pensiones del Poder Judicial. Said Special Committee was installed on September 13 of the same year, and on that same date, at its ordinary session No. 1, motion No. 2 (3-01 CE) by several deputies was considered in order to formalize what had already been decided on the previous June 30, namely, that the substitute text contained in file No. 19.651 would serve as the basis for discussion, as had been established in the Plenario when it was approved to process the file via artículo 208 bis of the rules; said motion was approved unanimously by the members of the Special Committee (see folio 1957 of legislative file No. 19.922).
As can be gathered from the legislative file, and as stated by some petitioners, this new text approved by the Special Committee on September 13, 2016 was indeed not published, and this Court noted as much in advisory opinion (opinión consultiva) number 2018-005758 of 3:40 p.m. on April 12, 2018, when hearing the Optional Legislative Consultation (Consulta Legislativa Facultativa) filed in relation to this bill, in which, on this matter, the following was stated:
"XII.- On 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 established by the special procedure approved for file number 19.922. On this matter, from the evidence provided by the executive director of the Asamblea Legislativa on March 12, 2018, it can be gathered that, although the aforementioned document was not published, the fact is that said substitute text had no bearing whatsoever, since the substitute text that was 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 was indicated in judgment N° 2006-009567, the failure to publish constitutes an essential procedural defect (vicio esencial) that invalidates the legislative process due to its relevance to the democratic principle (principio democrático). However, in light of what was stated in judgment N° 2013-008252, it is necessary to note 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 judgment N° 2013-008252, just quoted: "…Such quality elevates to the constitutional level the fundamental purpose of publicity: to promote citizen involvement in the fundamental decisions of the State. If this purpose is not violated and it is observed that there has been no genuine obstruction to popular participation (participación popular), then an error in publication cannot in itself constitute an essential defect in the legislative procedure." (Underlining added).
Mutatis mutandis, if publication takes place at a different procedural moment, it must be assessed whether a genuine obstruction to popular participation has occurred or whether the transparency of the legislative procedure has been seriously affected, in order to determine the existence of a substantial defect (vicio sustancial) in the legislative procedure; if that is not the case, no such defect would be present.' That being so, there is no violation of the principle of publicity, as alleged in the initial submission of this legislative consultation, since there has been no genuine obstruction to popular participation nor has the transparency of the parliamentary procedure been seriously affected. Therefore, the argument raised is dismissed" (emphasis in the original) (see judgment number 2018-005758 of 3:40 p.m. on April 12, 2018).
That being the case, the Court maintains the position stated above and, accordingly, will make no further reference to that point; the petitioners shall therefore abide by what was resolved therein regarding the actions taken by the Legislative Assembly up to that specific procedural moment in connection with this second substitute text of legislative file No. 19.922 — which, as stated, corresponds to the text approved by the Special Committee on September 13, 2016, and which was subsequently abandoned in favor of another text, meaning it was not the text ultimately approved, so its failure to be published had no bearing on the outcome.
XV.Justice Castillo Víquez continues drafting: Now, continuing with the processing of file No. 19.922 with respect to the subject under examination — namely, the publication of its substitute texts — it should be noted that the Special Committee designated to study and report on the bill continued analyzing the text (which, it will be recalled, was the one contained in file No. 19.651), and during the months of September 2016 through March 2017, the Committee received, at various hearings, a number of individuals connected to topics relevant to the bill, including representatives of the Plenary Court (Corte Plena), of the administrative branch, and of various professional associations of the Judicial Branch (Poder Judicial), as well as personnel from the Ministry of Finance (Ministerio de Hacienda), the Pension Supervisory Authority (Superintendencia de Pensiones), the Universidad de Costa Rica, and others.
The legislative file reflects that on March 29, 2017, the appearances of the last guests invited by the Special Committee concluded, and when discussion of the bill resumed, the deputy serving as Chair of that Special Committee stated — as recorded in the minutes appearing at folio 1716 — that on Monday, March 27, 2017, a new substitute text had been circulated "at a meeting of all advisors and all offices," that it had been discussed that same day, and that it had been announced the text would be taken up at the session of March 29. Furthermore, the minutes appearing in legislative file No. 19.922 reflect that on that date — March 29, 2017 — Motion No. 1-15, filed by several deputies, was presented before the Special Committee requesting that the reading of the substitute-text motion and its contents be waived; that motion was approved, whereupon substantive discussion of the substitute-text motion commenced and was approved in that same session with 7 deputies in favor and 1 against (folio 1731, Volume 7), with some deputies recommending that the new text be published (folios 1731 and 1733, Volume 7).
In this way, so that what occurred is clear, it should be noted that on that date — March 29, 2017 — a third, new text was introduced and was approved by the Special Committee as the substitute text that would serve as the working base from that moment forward. Following this, it is observed that on April 4, 2017, at ordinary session No. 16 of the Special Committee, some deputies presented a new motion stating that, with the new text approved on March 29, 2017, an agreement had been broken — namely, the agreement to work on the basis of the substitute text that had been admitted on September 13, 2016 — and therefore requesting that the text admitted on September 13, 2016, be restored as the Special Committee's working base text (folio 1751); that motion was rejected, and it was determined that the substitute text approved on March 29, 2017, would remain the text under study and as the working base of that Special Committee.
Thereafter, by means of an email sent on April 17, 2017, and through official communication AL-20035-OFI-0033-2017 of that date, signed by the Chair of that Special Committee, the substitute text was forwarded to the Executive Director of the Legislative Assembly for the corresponding publication to be made in the Official Gazette La Gaceta (folio 1767, Volume 8). Notwithstanding the foregoing, it is observed that at session No. 17 of April 18, 2017, the Special Committee approved a motion to revert to the base text that had been approved on September 13, 2016 (folio 1776, Volume 8); however, given that the previous day it had been ordered that the bill be sent for publication, that session could not validly proceed, because the rules approved for processing the file under the procedure of Article 208 bis were clear in establishing that once a bill was sent for publication, consideration of file No. 19.922 was suspended.
Consistent with this, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos), 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 revert to the prior base text was inadmissible and, therefore, the vote on that motion was invalid; accordingly, on the basis of that department's report, the session was annulled and all agreements adopted therein were rendered void (folio 1973, Volume 8). Consequently, the substitute base text for discussion remained the third one — that approved by the Special Committee on March 29, 2017. Meanwhile, it is apparent from the legislative file that in Supplement (Alcance) No. 91 of Thursday, April 27, 2017, the substitute text approved on March 29, 2017, appeared published (folio 2126), now entitled "Reform of Title IX of the Organic Law of the Judicial Branch, on Judicial Retirements and Pensions, No. 7333 of May 5, 1993, and Its Reforms," given that it must be borne in mind that, since June 30, 2016, the legislature's intention had been clear: to approve a bill that would reform only the Judicial Branch Retirement and Pension System and not several systems simultaneously, as had been contemplated in the original text of legislative file No. 19.922.
Continuing with the review of the legislative file, it is observed that at ordinary session No. 19 of the Special Committee on June 27, and at ordinary session No. 20 on July 19 — both in 2017 — a motion was presented on each of those days requesting that the document approved at ordinary session No. 1 of that Committee on September 13, 2016, be adopted as the base discussion text; that motion was ultimately rejected on July 19, 2017 (folio 2284, Volume 9) and, accordingly, the working text remained the third one, approved on March 29, 2017. Following this, at extraordinary session No. 22 of the Special Committee on July 26, 2017, a motion was approved pursuant to which, in light of the study being conducted by the Universidad de Costa Rica, a new text would be drafted in accordance with the technical criteria contained in the report of the Institute of Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the Universidad de Costa Rica; and based on that decision, on July 27 some deputies presented a substitute-text motion requesting that the text then under discussion be modified and replaced by this new document as the base text (folio 2407, Volume 10).
This new substitute text was approved that same day at extraordinary session No. 23 of the Special Committee on July 27, 2017; moreover, at that session the Majority Affirmative Report (Dictamen Afirmativo de Mayoría) was issued and a motion to publish it was also approved (folio 2450, Volume 10). The report submitted to the Court by the President of the Legislative Assembly, as well as folio 2866 of the legislative file, reflects that the Majority Affirmative Report was published in Supplement No. 189 of Friday, August 4, 2017, and likewise that the Minority Report (Dictamen de Minoría) was published in Supplement No. 190 of Monday, August 7, 2017. It should be clarified that this new text was the fourth to be added to legislative file No. 19.922 and was referred for consultation to the Supreme Court of Justice at folios 2625 and 2759 et seq.
It is noted that, subsequently, in session of the Legislative Plenary No. 6 of September 4, 2017, the substantive debate on legislative file No. 19.922 began in the First Reading procedure, for which the committee reports were explained and the first day for the submission of substantive motions was counted; such motions, in accordance with the provisions of article 208 bis approved for the processing of this file, could be submitted in the sessions of September 4 and 5, 2017, and the discussion of the bill was suspended until the Presidency of the Legislative Assembly determined the admissibility of the substantive motions submitted to the affirmative majority report (folio 3177). In ordinary session No. 067 of September 19, 2017, the Presidency of the Legislative Assembly communicated resolution No. 02-17-18 of the preceding September 18, by which it was ordered: a) to admit all 102 substantive motions submitted to file No. 19.922, as they conformed to the rules set forth in subsection 3) of point II of motion 208 bis; b) to group identical motions to be debated in a single proceeding although voted on individually; and c) another motion submitted by a deputy who was not a member of the Special Reporting Committee was declared inadmissible.
The motions were likewise referred to that Special Committee (folios 3195 and 3198), and it is apparent from 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), all motions having been considered and analyzed in that single sitting. The minutes drawn up for that session were approved by the Special Committee in the following session, extraordinary No. 26 of September 25, 2017; on that date, the first report on motions submitted via article 137 concerning file No. 19.922 processed by the Special Committee was delivered to the Office of the Board of Directors (Secretaría del Directorio), and it was recorded therein that 102 motions were processed, with motions numbered 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 was further ordered that the file would be sent to the Drafting Committee so that the corresponding adjustments could be made there with respect to what had been approved on the preceding September 20 (folio 3611, Volume 15 of the legislative file).
For its part, the record shows that on September 27, 2017, the Presidency of the Legislative Assembly announced receipt of the Report on Substantive Motions from the Reporting Committee, counting that as the first session—of the 2 established—for submitting reiteration motions in accordance with the procedure under 208 bis that had been adopted (folio 3612), and likewise that the second and final session for receiving such motions would be the following September 28 (folio 3621, Volume 15). It is apparent from the legislative file that in the ordinary session of the Legislative Plenary of September 28, 2017 (folio 3623, Volume 15), the First Reading debate on bill No. 19.922 was resumed and a motion was approved to postpone all items on the agenda in order to take up that file (folio 3630, Volume 15). As is apparent from the legislative file, up to this date there is no record of any document or motion suggesting that the text be published.
Subsequently, in resolution No. 03-17-18 of October 11, 2017, issued by the Presidency of the Legislative Assembly, it was communicated that 65 reiteration motions had been submitted during the period enabled for that purpose, but one was withdrawn, leaving 64, of which 57 were admitted and 7 were deemed inadmissible; identical motions were grouped to be debated in a single proceeding although voted on individually, and consideration of those motions continued without any directive ordering the publication of the document (folios 3635 and 3663, Volume 15). In extraordinary session No. 010 of October 17, 2017, the Legislative Plenary continued the substantive debate in the First Reading procedure of file No. 19.922 with consideration of the reiteration motions, counted as the first session for that purpose (folio 3673, Volume 15); this continued in the second extraordinary session No. 011 of the Plenary on October 18, 2017 (folio 3781, Volume 16); in the third extraordinary session No. 012 of the Plenary on October 24, 2017 (folio 3834, Volume 16); in the fourth extraordinary session No. 013 of the Plenary on October 25, 2017 (folio 3907, Volume 16) and, finally, in the fifth extraordinary session No. 014 of the Legislative Plenary corresponding to October 30, 2017 (folio 4000, Volume 17), the text of the Affirmative Majority Report accepted by the Special Committee on July 27, 2017, was approved in First Reading; that text corresponded to the fourth text incorporated into legislative file No. 19.922 and, as stated above, had received modifications through the substantive motions admitted by the Special Committee and subsequently underwent additional changes through the reiteration motions admitted by the Legislative Plenary, culminating in the consensus text approved in First Reading.
Up to this point, and returning to the petitioners' claim regarding the failure to publish the various drafts contained in legislative file No. 19.922, it must be recalled that, as of that date—October 30, 2017, and as already stated—2 publications of the substitute texts that were being considered by the Special Committee charged with issuing the committee report on the bill had been made: the first publication was made in Supplement 110 (Alcance 110) of La Gaceta of Thursday, June 30, 2016, and corresponded to the original bill submitted on April 5, 2016, which was assigned legislative file number 19.922; and the second publication, visible in Digital Gazette (Gaceta Digital) No. 147, Supplement No. 189 of August 4, 2017, in which the Affirmative Majority Report of the Special Committee was published. Additionally, Digital Gazette No. 148, Supplement No. 190 of August 7, 2017, published the Minority Report of the Special Committee. With respect to the foregoing, one cannot set aside the obligation established as one of the procedural rules of procedure 208 bis agreed upon on June 30, 2016, which, on this specific point of publication, provided:
"(…)
h- If during the committee's consideration of the file a motion for a substitute text is approved, or when the committee agrees to changes that substantially modify the bill, the Committee Chairperson shall request the Legislative Board of Directors to agree to its publication in the Official Gazette La Gaceta for the purpose of safeguarding the Constitutional Principle of Publicity, and consideration of the bill shall be suspended, along with the corresponding consultations being carried out as well. If, after eight business days have elapsed, no response has been received to the mandatory consultations referred to in this subsection h), it shall be understood that the body consulted has no objection to raise regarding the bill (…)".
From the foregoing, the legislature's decision is very clear: any approved motion for a substitute text—obviously understood to mean one different from the prior text under study—or any change that substantially modified the bill had to be published in the Official Gazette La Gaceta, and to that end, it was the obligation of the Chairperson of the Special Committee to request the Legislative Board of Directors to agree to its publication for the purpose of safeguarding the constitutional principle of publicity. In the specific case at hand, it is alleged that the text modified by the substantive motions that were accepted, and the subsequent text further altered by the admitted reiteration motions, were not published again, despite the petitioners' assessment that substantial modifications to the bill had occurred, which ultimately was approved in First Reading without any publication having been made prior thereto.
The publication took place after the motions and modifications were approved in First Reading. The document was published in Digital Gazette No. 212, Supplement No. 268 of November 9, 2017 (see folio 4368, Volume 18 of the legislative file). Specifically, the petitioners allege a defect in the parliamentary procedure, given that in the session of July 27, 2017, the Special Committee approved a substitute text 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; instead, the aforementioned parliamentary body held sessions and issued a committee report on the bill (see folio 2417 of the legislative file). The majority of this Tribunal does not deny that the defect identified did in fact occur. However, for the reasons set forth below, such defect does not have sufficient force to invalidate the procedure followed in this case and, much less, the final parliamentary act—that is, the law challenged in the consolidated actions.
Although this Tribunal, in the advisory opinion it issued in response to the optional constitutionality consultation regarding the Tax Solidarity bill—No. 004621-2012—established that deputies were required to adhere strictly and scrupulously to the procedure designed in accordance with article 208 bis—today 234 bis—the fact remains that such a position cannot be absolute in character. Consequently, it must be kept in mind that not every defect in the specially designed procedure entails a substantial procedural defect, since such defects relate to core aspects of the procedure associated with the democratic principle and its essential components and with the right of amendment. Having established the foregoing, the alleged defect concerns what is referred to in Costa Rican Parliamentary Law as the waiting period (plazo de espera), an institution of parliamentary procedure provided for at various stages of the parliamentary process. In the view of the majority of this Tribunal, the invoked defect does not have the merit to be subsumed within the category of essential or substantial defects—nor even within that of relative defects—given that no substantial steps of the parliamentary procedure have been violated by it; it is, rather, a defect of minor importance.
Furthermore, if the majority of this Tribunal, when the violation of the constitutional rigidity principle has been invoked, has established the doctrine that violations of the procedure under constitutional article 195 must be substantial and, consequently, that not every violation of what that article provides entails the nullity of the constitutional amendment, it would be inconsistent to follow a different path when the violation pertains to a rule set forth in the special procedure. Logic demands that the same reasoning be applied, for if under the higher-ranking rule—the constitutional norm—the defect is required to be substantial, then under the lower-ranking rule—the Rules of the Legislative Assembly and the motion governing the special procedure—the defect must likewise possess that characteristic.
There is another element that must be kept in mind in the instant case: the Special Committee had a deadline of July 31 to issue its committee report (dictamen), which made it materially impossible to suspend consideration of the bill for eight business days on July 27, especially since it was not plausible to assume that the Plenary would grant a new extension to the preparatory body (órgano preparatorio) in the event that one had been requested. Faced with this situation, the alternative chosen by the Special Committee is the one that best conforms to the rules governing the special procedure itself, for several reasons. First, it ensures the continuity of the parliamentary procedure; otherwise, had the Committee agreed to suspend the bill's proceedings, the consequence would have been that it lost jurisdiction to issue a report on it or to adopt any other parliamentary act. And, finally, it is the alternative that most closely conforms to the holding of advisory opinion n.° 004621-2012, which found a procedural defect in a bill precisely because the special committee had considered motions after its deadline had already expired—that is, when it no longer had jurisdiction. Therefore, for the reasons set forth, the appropriate conclusion is to reject the argument that the identified defect renders the challenged law unconstitutional.
XVI.Drafted by Magistrate Castillo Víquez. Regarding the alleged injury relating to the timing of publication of the substitute texts (textos sustitutivos) of the bill in case file number 19.922. A legislative procedure defect (vicio del procedimiento legislativo) is alleged, on the grounds that the obligation to publish each and every one of the texts that were successively attached to and approved within legislative file No. 19.922 was not duly fulfilled, even though that obligation had been established as one of the rules of the special procedure approved on June 30, 2016, pursuant to artículo 208 bis (now 234 bis) of the Reglamento de la Asamblea Legislativa. The challenge focuses in particular on the allegedly belated publication of the fourth substitute text, with the modifications introduced to it through a series of procedural motions (mociones de orden) and restatement motions (mociones de reiteración). That is, the challenge is not to an absolute omission of publication of that text, but rather to its having been published after being voted on in first reading (primer debate) yet before being approved in second reading (segundo debate).
In the Court's view, with respect to this specific point as well, no essential infringement of the legislative procedure has been established by way of a violation of the principle of publicity (principio de publicidad). It must be reiterated, first, that in this case the aforementioned publication did in fact take place, and what is challenged is an allegedly untimely or belated publication of the text in question. It must therefore be recalled that this Court has recognized that a failure to publish at a given procedural stage does not always constitute an invalidating defect (vicio invalidante) of the legislative procedure. In that regard, this Court has held:
"The Court does not find that this circumstance infringes the principle of publicity, which is characteristic of the legislative procedure: this principle, in the first place, is not satisfied by a single act—such as, for example, publication of the proposal—but is rather fulfilled across the various stages of the procedure, and through the very publicity to which the work of the legislative bodies is subject. The Court also notes that, once the proposal had been admitted (in the case to which this advisory opinion pertains) and the committee report referred to in subsection 3) of artículo 195 had been issued, that report was published, as was customary. The Court therefore concludes that the failure to publish the constitutional reform proposal at issue here does not constitute a defect that invalidates the procedure." (See voto nro. 11560-2001.)
Along the same lines, in the aforementioned voto nro. 2018-005758, this Court stated that:
"It must be borne in mind that publicity is not an end in itself, as this Court held in advisory opinion number 2018-003851, where it established the following:
'Certainly, as stated in sentencia N° 2006-009567, the omission of publication constitutes an essential defect that invalidates the legislative process (trámite legislativo) due to its significance for the democratic principle. However, in light of what was stated in sentencia N° 2013-008252, it must be noted that the principle of publicity is not an end in itself; rather, its importance lies, on one hand, in guaranteeing transparency, and, on the other, in enabling the participation of interested parties. As sentencia N° 2013-008252, just quoted, states: "…This quality elevates to constitutional rank the fundamental purpose of publicity: to promote citizen participation in the fundamental decisions of the State. If this purpose is not undermined and it is found that there has been no genuine obstruction of popular participation, then an error in publication cannot, by itself, constitute an essential defect of the legislative procedure." (Underlining added.) Mutatis mutandis, if publication occurs at a different procedural stage, it must be assessed whether a genuine obstruction of popular participation has occurred 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, no such defect would exist.'" (Emphasis not in the original.)
In such case, the Court finds that in the instant matter, the alleged untimely or belated publication of the substitute text has not resulted in a genuine obstruction of popular participation, nor has the transparency of the parliamentary procedure been seriously affected, since, as the Procuraduría General de la República correctly notes, it is "public and well-known that the judicial branch labor unions followed the entire legislative process that culminated in the approval of ley n.° 9544 actively, a process that also received extensive media coverage, so it is not possible to assert that there was any serious omission in the publicity given to the bill that could justify the annulment of said law" (see page 14 of the Procuraduría General de la República's report).
Additionally, with respect to the foregoing, the petitioners (accionantes) assert that the substitute text approved by the Special Committee on July 27, 2017 contained substantial changes, making its publication necessary in accordance with the rules established in the special procedure under numeral 208 bis—now 234 bis—of the Reglamento de la Asamblea Legislativa. It has been a foundational principle of the Sala Constitucional that the party invoking a constitutional breach bears the burden of argumentation (carga de argumentación). This means that it is not sufficient to invoke unconstitutionality or to state that a constitutional defect exists; rather, a minimum logical development must be provided, explaining what the defect consists of. In that regard, this Court stated the following in sentencia n.° 0184-1995:
"This matter presents an important scenario for analyzing what might be called the 'burden of argumentation': a norm that is facially 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 Constitución Política; the opposite occurs when a challenge is brought against a norm that, on first examination, does not appear to be contrary to the Constitution, in which case it is the petitioner who must advance the arguments that persuade the court of the unconstitutionality." Moreover, in a subsequent decision—004239-2014—the topic of the burden of argumentation and the duty of petitioners to demonstrate the alleged infringement is developed more fully. That decision establishes:
"IV.- On the lack of specificity in the unconstitutionality arguments. The Ley de la Jurisdicción Constitucional, in its artículo 3, provides that 'The Constitución Política shall be deemed infringed when that results from a comparison of the text of the challenged norm or act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles.' Now, for this Court to find the infringement established and to declare the unconstitutionality of the challenged norm or act—with the consequent annulment and removal from the legal order—whoever brings an unconstitutionality action (acción de inconstitucionalidad) bears the burden of demonstrating how that provision infringes the constitutional norm or principle and must also explain why the claim should be upheld. This Court refers to this as the burden of argumentation, meaning that 'a norm that is facially 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 Constitución Política; the opposite occurs when a challenge is brought against a norm that, on first examination, does not appear to be contrary to the Constitution, in which case it is the petitioner who must advance the arguments that persuade the court of the unconstitutionality'" (see sentencia número 0184-95 de las 16:30 horas del 10 de enero de 1995).
In a subsequent decision, this Court set forth the following with respect to the lack of specificity in unconstitutionality arguments in matters involving unconstitutionality actions:
The unconstitutionality action (acción de inconstitucionalidad) is brought on the grounds that the challenged Executive Decree (Decreto Ejecutivo) is harmful and infringes upon the fundamental rights to a healthy and ecologically balanced environment and to health, as well as the international commitments undertaken under the Protocolo de Kyoto. Despite the opportunity afforded to the petitioners, this Court confirms, as stated by the Procuraduría General de la República, that there is no concrete analysis of the provisions of the challenged Executive Decree that are considered unconstitutional; rather, the action is limited to raising objections in a generic and abstract manner against the Regulation (Reglamento) as a whole, and even more broadly against all activities carried out by sugar mills (ingenios Azucareros) and haciendas, on the ground that they cause inconveniences to the quality of life and health of neighboring residents, without specifying which constitutional arguments should be considered against each provision or group of provisions of the challenged Regulation. […] The first paragraph of Article 78 of the Ley de la Jurisdicción Constitucional establishes the obligation to have petitions for unconstitutionality actions authenticated, since it is considered necessary that the arguments be put forward by a legal professional—which this Court does not rule out may reflect a serious study of the technical and scientific merits of a given subject matter, given the diversity and universality of the rules of the legal system.
Unlike guarantee proceedings—that is, habeas corpus and amparo (recursos de hábeas corpus y de amparo) proceedings—which any interested party may file directly before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that harm them in their particular sphere (although not always, as in environmental cases), in proceedings for the defense of the Constitution (such as the unconstitutionality action), the legislature entrusted the authenticating attorney with a task whose requirements are even greater—more elaborate and exhaustive, if you will—and which must be set forth in the filing brief (libelo de interposición) by virtue of that professional's office, in order to demonstrate to the Court the injury caused to the constitutional norm by a lower-ranking norm, thereby undermining the principle of constitutional supremacy (principio de supremacía constitucional) enshrined in Article 10 of the Constitution.
The material and formal elaboration of statutes, as well as of other secondary provisions, presupposes a process that is extremely costly for the State, one in which organized civil society has participated in many ways, for and against, and whose procedures for drafting, approval, and promulgation must not be analyzed lightly. In this regard, this Court must acknowledge that there is limited room for this Court to remedy the manifest deficiencies of the legal professionals who authenticate briefs in this constitutional jurisdiction, without jeopardizing the impartiality and analysis owed to each unconstitutionality action." (Judgment number 005285-2012, issued at 15:03 hours on April 25, 2012).
In this case, this Court considers that, despite the opportunity afforded to the petitioner, there is no concrete analysis of the provisions of the challenged Executive Decree that are considered unconstitutional; rather, the action is limited to raising objections in a generic and abstract manner against the Regulation and the activities carried out by sugar producers, haciendas, and farms throughout the country—particularly those located in Cañas, Carrillo, and Liberia, all in the province of Guanacaste—on the grounds that they cause problems with quality of life, residents' health, and environmental damage. The petitioner considers that, due to the activities they carry out, an environmental impact study should be required of them, since the only provision that the challenged decree addresses—in its Article 12—is the possibility of SINAC issuing a technical opinion, and the petitioner considers the ten-calendar-day period established for that purpose to be insufficient; however, the petitioner does not set forth the technical reasons why the public authority would require a period longer than that established in the regulation.
Furthermore, the petitioner objects to the restriction placed on the Ministerio de Salud and the municipalities that prevents them from suspending a burning (quema) that fails to comply with the conditions and requirements specified in the permit unless the Ministerio de Agricultura y Ganadería also intervenes jointly, in accordance with Art. 19 of the challenged Decree. The petitioner also objects to the absence of technical studies to determine whether boilers burning fossil biomass fuels exceed or do not exceed the emission levels for boilers, as set forth in the Reglamento de Calderas. Notwithstanding the foregoing considerations, these are raised without any specificity in the constitutional arguments that should be considered against each provision or group of provisions of the challenged Regulation. Likewise, the active coadjuvants (coadyuvantes activos) Gad Amit Kaufman and Carolina Rugeles Quijano also fail to contribute additional elements that would establish the legal grounds supporting their position regarding the unconstitutionality of the cited decree; they limit themselves to citing domestic and international legal doctrine, statutes, Treaties and International Conventions signed by Costa Rica, and judgments issued by this Court, which they consider the Regulation in question contradicts, without providing an exhaustive analysis to demonstrate the injury caused to the constitutional norm by the lower-ranking Decree in question.
For this reason, as in the precedents partially transcribed above, this Court considers that it is not possible to remedy the manifest deficiency of the legal professional who authenticated the present action, without jeopardizing the impartiality and analysis that this unconstitutionality action must embody and, therefore, the present unconstitutionality action must be dismissed." Finally, with respect to the burden of argumentation and its application specifically to an alleged procedural defect (vicio) in the legislative process, judgment number 011499-2013 states the following:
"VII.- On procedural defects. The petitioner Guillermo Sanabria Ramírez, in his capacity as representative of the Asociación Cámara Patentados de Costa Rica, alleges that during the legislative approval procedure of the Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico, Nº 9047, formal defects were committed that invalidate said law. First, he alleges that the then-draft law was substantially modified through the approval of substantive motions (mociones de fondo) pursuant to article 137 of the Reglamento de la Asamblea Legislativa, which were not published in a timely manner, thereby breaching the principle of publicity (principio de publicidad). Second, and in connection with the foregoing, he argues that the originally published text differs from the law as approved, such that there was an excess in the exercise of the right of amendment (derecho de enmienda) without a final publication reflecting what was ultimately approved. For his part, petitioner Gerardo Darío Schreiber also considers that violations occurred in the approval procedure of Ley Nº 9047, given that substantial changes were made to the draft law without being published.
With respect to this grievance, the Procuraduría General de la República is of the view that the petitioners failed to indicate and specify the injuries to constitutional rights produced by the acts they allege were not published; that is, they did not identify the specific harm caused by the failure to publish the committee reports they invoke, nor by each of the motions cited. The Procuraduría clarifies that the then-draft law processed in legislative file Nº 17.410 (Ley Reguladora de Bebidas con contenido alcohólico) was duly published—both its base text, in La Gaceta Nº 145, Alcance Nº 31, of July 28, 2009, and the substitute text that the petitioners claim was not published, which was published in La Gaceta Nº 6 of January 11, 2010. Furthermore, with respect to the alleged failure to publish a second Committee Report (Dictamen de Comisión), pursuant to article 154 of the Reglamento, which the petitioners contend introduced substantial changes to the draft law after reviewing the report alleged to have been unpublished and the substitute text, the Procuraduría did not find any substantial differences that would have made such publication indispensable.
The advisory body explains that the motions cited by the petitioners do not represent substantial changes to the draft law in question, which from its original text—and subsequently through the substitute text—already proposed express regulation on the points identified. The Procuraduría argues that the set of motions, as well as the issuance of the committee reports criticized as unpublished, occurred prior to the submission of the draft law for consultation to this Constitutional Chamber, and that, following the ruling issued on that occasion (judgment number 2012-2675), the draft was again modified in accordance with this Court's observations. The modified text, incorporating the amendments made in light of this Court's ruling, was duly published in La Gaceta Nº 95 of May 17, 2012, and therefore no defect is apparent that would undermine the principle of publicity alleged to have been violated.
Now, with respect to this sole procedural defect alleged by the petitioning party (failure to publish), the Court considers that the Procuraduría General de la República is correct in each of its assessments and, therefore, the action should be dismissed with respect to this grievance. As this Court has held, the recognition of the principle of publicity as a substantive element of the legislative procedure has been a constant feature of constitutional case law (see, among others, judgment number 2006-009567 of July 5, 2006). This principle guarantees broad debate that facilitates contact both with the general public and with those who, in particular, may have an interest (by reason of their economic activities) in knowing 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 legislators are merely their representatives, as provided by Article 105 of the Constitution (see judgment number 2000-03220 issued at 10:30 hours on April 18, 2000).
As the Court rightly stated in judgment number 2000-03220, cited above, the legislature has the ability to introduce modifications and variations to the original bill through the exercise of its right of amendment. Regarding such changes, constitutional jurisprudence has distinguished between amendments that require new publication and those that do not; this will depend on whether such a change constitutes a substantial modification of the original bill or not. See what this Court stated in the aforementioned judgment number 2000-03220: "Article 101 of the Constitutional Jurisdiction Act does not clearly determine which defects in the procedure for the formation of laws, 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 Article 73 of the Act governing this Jurisdiction, which provides that — in actions of unconstitutionality — and in principle, in the processing of ordinary legislation, the defects controllable by the Court are those relating to the violation of a 'substantial' requirement or procedural step provided for in the Constitution or, as the case may be, established in the Rules of the Legislative Assembly.
From the foregoing derives the necessity that the Constitutional Court itself, in each particular case, be responsible for establishing which requirements or procedural steps are 'essential,' to the point of invalidating the procedure for the drafting of a given norm due to non-compliance, since it is clear that reading the provision in the contrary sense leads to the conclusion that not every violation of the procedure for the drafting of a formal law constitutes a substantial defect, and clearly, with consequences for its constitutionality (…)." Thus, there will be an essential defect in the legislative procedure — contrary to the principle of publicity — when the new publication of a 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 16:00 hours of April 10, 2012, among others).
In the sub iudice, this Court observes that the text published in La Gaceta Nº 145, Alcance Nº 31, of July 28, 2009 is the bill originally introduced by then-Representative Oscar Núñez Calvo, relating to legislative file Nº 17.410, in which the then-bill "Ley Reguladora de Bebidas con contenido alcohólico" was being processed at that time. Subsequently, the substitute text was also made available to the general public, through publication in Diario La Gaceta Nº 6 of January 11, 2010 (see La Gaceta Digital website). Along the same lines, as the Procuraduría sets forth, the motions referred to by the petitioners, as well as the issuance of the opinions that are reproached as unpublished, occurred prior to the referral of the bill for an optional consultation to this same Constitutional Court, a bill which, as a result of what was decided on that occasion (judgment number 2012-2675), was again modified in accordance with the observations made by this Court. This modified text was duly published in La Gaceta Nº 95, Alcance Digital Nº 63 of May 17, 2012 (see La Gaceta Digital website), so that effectively no defect is observed that would undermine the principle of publicity alleged to have been violated, since the bill was duly published in its modified and final version.
This being so, we see how — on at least three different occasions — the text of the bill in question was published in the Official Gazette La Gaceta in order to give public notice of the base text as well as the changes that arose throughout the legislative process after this Court rendered its opinion on the bill in the optional consultation filed. The most important publication, without a doubt, is that of May 17, 2012, since the text published at that time contained each and every one of the modifications made by the legislators in light of what this Court indicated in the optional consultation, in addition to the changes made previously to the same bill. Therefore, with this third and final publication of the then-bill, any other deficiency that might have existed in the prior stages of the parliamentary procedure was remedied, especially considering that a comparison between the text published on that last occasion (May 17, 2012) and the final text published as a Law of the Republic in La Gaceta Nº 152 of August 8, 2012, shows that both texts are in absolute coherence and similarity in their most important normative provisions.
In any event, the Court also agrees with the position of the Procuraduría General de la República, in the sense that petitioners Sanabria Ramírez and Darío Schreiber did not in any way substantiate what harm or grievance was caused to them by the failure to publish the changes made to the original text. In the case of petitioner Sanabria Ramírez, this Court observes that he merely transcribed the original text of certain provisions of the bill and, following each article, the wording that in his opinion had been modified in the new substitute text; however, he neither justified nor explained why publication was necessary for each of those changes. For his part, petitioner Darío Schreiber also did not elaborate on the grounds and reasons that this Court finds lacking when the grievance of failure to publish is set forth. The foregoing leads us to conclude that, in this case, what the Procuraduría General de la República indicates is confirmed, namely that there is no concrete analysis of the reasons why it is considered that each of the changes and modifications made to the bill — or at least the most relevant ones — should have been published.
With regard to this grievance, both petitioners confine themselves to sketching discrepancies in a generic and abstract manner against the publications that, in their view, should have taken place during the legislative process, but they do not explain why such publications were necessary.
As stated in judgment number 2012-002675 of 11:52 hours of February 24, 2012 (which resolved the Optional Consultation on Constitutionality filed with respect to the then-bill "Ley para la regulación y comercialización de bebidas con contenido alcohólico"), there is settled jurisprudence of this Court to the effect that this body rules only on what is expressly consulted and substantiated, but not in the abstract. For example, in the recent vote number 2013-000992 of 14:30 hours of January 23, 2013, this Court explained the following:
"On the lack of specificity in the arguments of unconstitutionality. In particular regarding the exposition of grounds in a clear and precise manner — Article 78 of the Constitutional Jurisdiction Act — the Court has stated that: 'The first paragraph of Article 78 of the Constitutional Jurisdiction Act establishes the obligation to have petitions for actions of unconstitutionality authenticated by an attorney, since it is considered necessary that there be arguments put forward by a legal professional, which this Court does not rule out may respond to 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 guarantee proceedings, that is, habeas corpus and amparo petitions, which any interested party may file directly before the constitutional jurisdiction in defense of their fundamental rights (…) in proceedings for the defense of the Constitution (such as the action of unconstitutionality), the legislature entrusted to the authenticating attorney a task whose demands are even greater — more elaborate and exhaustive — and which must be set forth in the filing brief by virtue of his or her professional role, in order to demonstrate to the Court the injury to the constitutional norm caused by a norm of lesser rank, undermining the principle of constitutional supremacy contained in Article 10 of the Constitution.
Precisely, the material and formal drafting of a law, as well as other secondary provisions, entails a process that is extremely costly for the State, in the elaboration of which organized civil society has participated in many ways both for and against, and whose procedures of formation, approval, and promulgation must not be analyzed lightly. In this regard, this Court must acknowledge that there is limited space for this Court to remedy the manifest absences of the legal professionals who authenticate briefs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the actions of unconstitutionality' (underlining not in the original)." Along the same lines, the Court's prior decisions have spoken to what might be called the "burden of argumentation": a norm that is facially 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 Constitution; the opposite occurs when 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 as to the unconstitutionality (see judgment number 0184-95 of 16:30 hours of January 10, 1995).
In accordance with this line of reasoning, there is nothing left but to dismiss this sole grievance given the manner in which petitioners Sanabria Ramírez and Darío Schreiber have presented it: first, because there was in fact adequate and timely publication of the various texts prior to the enactment of Ley Nº 9047; and second, because even if a failure to publish some relevant text had been demonstrated, the moving party did not set forth the grounds on which it considered it indispensable to publish the modifications of its interest. 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 they do not meet the requirements of this Court. By way of example: petitioner Campos states, at most, that a novel element is introduced — namely the creation of the Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial — in support of her thesis that a consultation with the Corte Suprema de Justicia was required in accordance with Article 167 of the Constitution.
The active co-party Monge Molina merely states that the text approved in the Special Commission on July 27, 2017 contained substantial changes, such as: worker contributions, retirement age, years of service, functions removed from the Consejo Superior, and transitional provisions, without making any argument as to what those changes consisted of.
As can be observed, without great effort, the petitioners do not provide the minimum arguments for the grievance to be accepted; therefore, following the precedents of this Court, the grievance on this point must be rejected.
XVII.Drafted by Justice Hernández López. On the obligation established in Article 167 of the Political Constitution. In the petitioners' view, the bill processed under file number 19.922 was not duly consulted with the Poder Judicial as required by 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 administration-of-justice service it provides, as well as on the independence that the Constitution guarantees to that branch and to the judges entrusted with administering justice. To begin the analysis of this point, it is necessary to start from what Article 167 of the Political Constitution provides:
"ARTICLE 167.- For the discussion and approval of bills relating to the organization or functioning of the Poder Judicial, the Asamblea Legislativa must consult the Corte Suprema de Justicia; to depart from the latter's opinion, a two-thirds vote of the total membership of the Asamblea shall be required." From that provision, for the purposes of this action for unconstitutionality (acción de inconstitucionalidad), the relevant phrase is "organization and functioning of the Poder Judicial," since it is the task of the Sala Constitucional, in this context, to unpack its content in order to ascertain its scope and whether that scope does or does not give rise to the obligation for the Asamblea Legislativa to conduct that consultation with respect to the subject matter of legislative file 19.922, which ultimately led to the enactment of Ley 9544 amending the Retirement and Pension System (Régimen de Jubilaciones y Pensiones) of the Poder Judicial.
The issue has not been uncontroversial, but the majority of the Sala has consistently held that the concept of "organization and functioning" to which the cited article refers concerns aspects relating to the jurisdictional function of the Poder Judicial, and that a bill deals with such matters when its articles contain explicit provisions creating, substantially altering, or abolishing strictly jurisdictional bodies or administrative bodies attached to the Poder Judicial, or else create, ex novo, substantially modify, or eliminate materially jurisdictional or administrative functions, bearing in mind that the constitutional provision under discussion harmonizes two fundamental considerations: on the one hand, the independence of the Poder Judicial, and on the other, the exercise of the legislature's freedom to configure or shape legislation, which has no limit other than constitutional law.
Beyond the foregoing, Article 167 of the Political Constitution clearly encompasses two broad areas of the Poder Judicial's work: on the one hand, everything relating to its organization and functioning in its essential function—jurisdiction and the administration of justice—but on the other hand, equally important, everything relating to its organization and functioning from an administrative standpoint. The Poder Judicial undoubtedly discharges both sets of responsibilities in both spheres, and precisely for that reason its function should not be classified as exclusively jurisdictional, since in order to carry out that function it must, without question, perform administrative work related to its budgetary situation, the management of its human and material resources, its organizational climate, personnel rotation, and other matters that are not strictly the administration of justice but that lay the groundwork for justice to be administered.
From this perspective, then, and in connection with the consultation that the members of the Asamblea Legislativa submitted to this Tribunal in November 2017 regarding the bill contained in legislative file 19.922, it is worth noting that in judgment No. 2018-005758 of 15:40 on April 12, 2018, in which that optional legislative consultation (consulta legislativa facultativa) was considered, this Sala stated:
"(…) this Tribunal considers that the subject matter of legislative file number 19.922 does not fall within the situations established by Article 167 of the Political Constitution and, therefore, there was no obligation to consult the Corte Suprema de Justicia. In that regard, it is established that, while the challenged bill creates a body attached to the Poder Judicial—namely the Junta Administradora del Fondo de Pensiones y Jubilaciones de Poder Judicial—which assumes functions previously vested in the Consejo Superior del Poder Judicial, those elements nonetheless relate to matters that are proper to the Fondo de Jubilaciones y Pensiones del Poder Judicial, that is, typically administrative functions that do not have any bearing, at least not directly, on the jurisdictional function of the Poder Judicial, which is precisely what Article 167 of the Constitution protects. We are not, therefore, in the presence of the creation, substantial modification, or abolition of strictly jurisdictional bodies or administrative bodies attached to the Poder Judicial, nor of the creation ex novo, substantial modification, or elimination of materially jurisdictional or administrative functions.
It should be noted that the new body—the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial—forms part of the structure of the Poder Judicial, whose functions are typically administrative, namely the administration of the aforementioned Fondo, which cannot be subsumed within the constitutional requirement of modifications to the organization and functioning of the Corte Suprema de Justicia that concern its primary, exclusive function—the jurisdictional one—and those essential administrative functions that support its primary function. In any event, and without prejudice to the foregoing, it is necessary to mention that folio 2625 of the legislative file shows that, pursuant to a motion approved on July 27, 2017 by the Comisión Especial, through official communication number AL-20035-OFI-0043-2017 of July 31, 2017, the head of the Comisiones Area of the Asamblea Legislativa gave the Poder Judicial an opportunity to be heard with respect to the majority affirmative opinion (dictamen afirmativo de mayoría), whereupon the Corte Suprema de Justicia issued its opinion through official communication number SP-253-17 of August 10, 2017, as confirmed by an examination of folios 2759 to 2807 of the legislative file.
In that regard, it is thus clear that the Poder Judicial was indeed able to express its opinion with respect to the substitute text (texto sustitutivo) approved by the Comisión Especial on July 27, 2017, even before it was considered by the Plenary (Plenario). In light of the foregoing, the Sala finds that the defect alleged by the consulting parties is not present."
XVIII.Drafted by Justice Hernández López. On the Consultation with the Poder Judicial Regarding the Bill Contained in Legislative File 19.922. In the Reglamento of the Asamblea Legislativa, there are two provisions that must be mentioned when citing Article 167 of the Political Constitution, since they are the ones that establish the procedure to be followed when conducting the consultation referred to by that constitutional provision. In that regard, Article 126 of the Reglamento of the Asamblea Legislativa provides as follows:
"ARTICLE 126.- Mandatory Constitutional Consultations When a bill is being discussed in a committee or a motion is approved that, pursuant to Articles 88, 97, 167, and 190 of the Political Constitution, must be subject to consultation, the relevant consultation shall be carried out by the President. Consultations conducted by committees shall be deemed to have been made by the Asamblea itself, and, to the extent applicable, the provisions of Article 157 of this Reglamento shall apply." For its part, that cited Article 157 provides as follows:
"ARTICLE 157.- Institutional Consultations When, in the course of deliberating on 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 committee has not done so, consideration of the bill shall be suspended while the corresponding consultation is made. If after eight business days no response to the consultation referred to in this article has been received, it shall be understood that the consulted body has no objection to the bill. If, within that period, the consulted body makes observations on the bill, the bill shall automatically be referred back to the relevant committee, provided the Asamblea accepts those observations. If the Asamblea rejects them, while respecting what the Political Constitution determines, the matter shall continue through its ordinary procedure." From legislative file 19.922, it emerges that the Special Commission Charged with Reviewing 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 (moción de orden) for the text to be referred to the Corte Suprema de Justicia for consultation (folios 168 and 169, Volume 1 of legislative file No. 19.922).
By official communication CE208-BI-02-2016 of September 14, 2016, the Acting Area Head of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa, acting on instructions from the President of the aforementioned Special Commission, submitted a consultation addressed to the President of the Corte Suprema de Justicia regarding the substitute text of file No. 19.922 (folio 172, Volume 1 of the legislative file). For its part, the above-cited bill was referred for review by the Justices of the Corte Suprema de Justicia, and the report rendered was considered at Corte Plena session No. 29-16 of September 26, 2016, Article XVIII, and was communicated to the Asamblea Legislativa by official communication SP-288-16 of September 28, 2016, with the express indication that the bill under consultation affects the organization and functioning of the Poder Judicial (folio 284, Volume 2 of the legislative file).
Subsequently, at ordinary session No. 15 of March 29, 2017, the Special Commission Charged with Reviewing 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 a further consultation to be conducted; accordingly, by official communication AL-20035-OFI-0029-2017 of April 17, 2017, the Head of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa transmitted to the President of the Corte Suprema de Justicia a consultation on the substitute text approved at the session of March 29, 2017 (folio 1757, Volume 8 of the legislative file). For its part, Corte Plena, at session No. 9-17 of April 24, 2017, Article XXIX, considered the consultation submitted to it, and by official communication 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 had issued a negative opinion on the bill under consultation, and likewise determined that the bill affects the organization and functioning of the Poder Judicial (folio 1829, Volume 8 of the legislative file).
In addition to the foregoing, legislative file No. 19.922 reflects that on July 27, 2017, the members of the Special Commission presented a new substitute text which, at extraordinary session No. 23 of that same date—July 27, 2017—was approved and an affirmative committee opinion was issued, with 8 members voting in favor and 1 against (folio 2449, Volume 10 of the legislative file); motions were also approved to conduct several consultations, including one addressed to the Corte Suprema de Justicia, which was submitted by official communication AL-20035-OFI-0043-2017 of July 31, 2017, in which the Head of the Comisión de Asuntos Jurídicos of the Asamblea Legislativa transmitted to the President of the Corte Suprema de Justicia a consultation regarding the Majority Affirmative Opinion (Dictamen Afirmativo de Mayoría) approved by that Commission on July 27, 2017 (folio 2625, Volume 11 of the legislative file).
For its part, Corte Plena, at session 26-17 of August 7, 2017, Article XXX, considered the consultation submitted by the aforementioned Special Commission regarding the Majority Affirmative Opinion, and for a third time issued a negative opinion on the bill, indicating 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 by official communication SP-253-17 of August 10, 2017 (folio 2759, Volume 12 of the legislative file). Based on the foregoing, regardless of whether some of the petitioners consider that the Corte Suprema de Justicia was not formally consulted on the content of the bill processed under legislative file No. 19.922, the fact of the matter is that, in this Tribunal's view, 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, as follows:
"(…) it is necessary to note that folio 2625 of the legislative file shows that, in response to a motion approved on July 27, 2017 by the Special Commission, by official communication number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Commissions Area of the Asamblea Legislativa granted the Poder Judicial a hearing with respect to the majority affirmative opinion, whereupon the Corte Suprema de Justicia proceeded to issue its opinion by official communication number SP-253-17 of August 10, 2017, as verified from a review of folios 2759 to 2807 of the legislative file. In that regard, it is therefore clear that the Poder Judicial was indeed able to issue its opinion with respect to the substitute text approved by the Special Commission on July 27, 2017, even before it was considered by the Plenary. In light of the foregoing, the Sala finds that the procedural defect alleged by the petitioners does not exist." Certainly, the Sala has found that the Corte Suprema de Justicia was able to issue its opinion, and based on the review of the legislative file, it has been duly established that the Comisión de Asuntos Jurídicos sent 3 official communications through which the Corte Suprema de Justicia was consulted:
XIX.Drafted by Magistrate Hernández López. On the negative opinion issued by the Corte Suprema de Justicia regarding legislative file (expediente legislativo) No. 19.922.- As the petitioners state, and as has been established through review of legislative file No. 19.922, the Corte Suprema de Justicia issued 3 responses to the consultations submitted to it regarding the bill, and on all 3 occasions it rendered a negative opinion, stating each time that it was opposed because the bill affected the "organization and functioning" of the Poder Judicial, insofar as the bill sought to create an Administrative Board (Junta Administrativa) of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Poder Judicial as a body of the Poder Judicial that would have complete functional, technical, and administrative independence to exercise the powers and functions conferred upon it by law, and to which would be transferred the functions and powers that, at the time the opinion was issued, fell within the competence of the Corte Plena and the Consejo Superior.
The Corte also noted that this Board would have instrumental legal personality (personalidad jurídica instrumental) to exercise the powers assigned to it by law, as well as to exercise judicial and extrajudicial representation of the Fund. Within the Corte Plena's position, it was argued that the regulation concerning the Administrative Board would affect the organization and functioning of the Poder Judicial because it would eliminate the Consejo Superior's competence over the technical, functional, and administrative powers of the Fondo de Jubilaciones y Pensiones and transfer those powers to the Administrative Board. Furthermore, the Corte stated that it would have repercussions for the organization and functioning insofar as it would eliminate the Corte Plena's governance power with respect to defining the investment policy and regulation of the Fund. The representative of the Corte Suprema de Justicia stated that this reform would establish a Board as a body with maximum deconcentration (desconcentración máxima) and its own budget, which would mean that all the investment that the Poder Judicial had made up to that point in specialized personnel and in the development of a computer system serving as the operational basis of the Fund would be wasted.
The Corte Suprema further noted that while it understood the intention to specialize the individuals administering the Fund and to allow them to have all the independence and objectivity that the mandate requires, that collegiate body considered this could be achieved through minimum deconcentration (desconcentración mínima), while warning that under maximum deconcentration the superior body is not permitted to take over administrative acts relating to the Fund, nor could the Administrative Board's conduct be reviewed or substituted. Likewise, the Corte Plena warned that this Board would be shielded from orders, instructions, or circulars — that is, it would have complete independence from the Poder Judicial. In addition, the Corte Plena argued that the bill relates to the structure and functioning of the Poder Judicial because it would affect staff renewal, given that the Poder Judicial would retain older employees who would continue working solely because of the reduction their income would suffer upon retiring, since the bill directly affects the life plans of all judicial employees, as it entails a reduction in retirement benefits even for those who have met all the legal requirements to fully enjoy the right to retire.
The Corte Suprema de Justicia argued that judicial employees would face a dilemma: although they may wish to exercise the right and feel motivated to retire and rest, they would nonetheless find themselves in a situation where they would have to assess their economic circumstances, likely being forced to seek new sources of income to cover their ordinary or pre-retirement expenses and the natural expenses that come with age — a process that also has its own restrictions, since the Ley Orgánica del Poder Judicial prohibits retired employees from taking other employment, and it is a social reality that after the age of 40 there are practical limitations on reintegration into the workforce. The Corte Plena stated that the bill is closely related to structure and functioning because it diminishes the Poder Judicial's competitiveness in the labor market, to the detriment of the quality of the Administration of Justice; salary packages for positions will be reduced by the contribution to the pension and retirement scheme, which is 4 times greater than the contribution to other schemes, making it more difficult to attract human resources and thereby harming the public service.
Based on these arguments, all of which appear in the legislative file, the Corte Suprema de Justicia communicated to the Asamblea Legislativa its negative opinion and opposition to the bill being processed in legislative file No. 19.922; an opinion that was also presented orally before the Special Commission responsible for processing the bill at the various hearings granted to the Corte Suprema de Justicia, which were attended by different representatives of the Poder Judicial.
XX.Drafted by Magistrate Castillo Víquez. On the organization and functioning of the Poder Judicial in relation to the Instrumental Legal Personality of the Administrative Board of the Fondo de Jubilaciones y Pensiones del Poder Judicial.- Regarding what has been analyzed in the 3 preceding considerandos, the petitioners also assert that the creation of the Administrative Board of the Fondo de Jubilaciones y Pensiones del Poder Judicial affects the organization and functioning of the Poder Judicial, and accordingly ask this Chamber to so declare. In order to analyze this argument, the starting point must be the content of Article 239, which provides:
"Article 239.- The Administrative Board of the Fondo de Jubilaciones y Pensiones del Poder Judicial is hereby created as a body of the Poder Judicial, which shall have complete functional, technical, and administrative independence to exercise the powers and functions conferred upon it by law.
The Board's functions shall be:
Based on the results of the actuarial studies, and with the authorization of the Superintendencia de Pensiones, the Administrative Board may modify the initial parameters established in this law regarding eligibility requirements, the benefit profile, and the contributions and premiums of judicial employees and of the retirements and pensions provided for in the law, whenever this is necessary to guarantee the actuarial balance of the Scheme.
The Board shall have instrumental legal personality to exercise the powers assigned to it by law, as well as to exercise judicial and extrajudicial representation of the Fund.
It shall be financed by an administrative expense commission arising 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 shall be used to pay the board meeting fees (dietas) 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 amended by Article 1° of ley N° 9544 of April 24, 2018.)
Therefore, as follows from the cited Article 239 of Ley 9544, that article created the Administrative Board of the Fondo de Jubilaciones y Pensiones del Poder Judicial as a body of the Poder Judicial that shall have complete functional, technical, and administrative independence to exercise the powers and functions conferred upon it by law, and that Board shall have instrumental legal personality to exercise the powers assigned to it by law, as well as to exercise judicial and extrajudicial representation of the Fund. It should be noted that, on this matter, this Chamber has accepted as constitutionally sound the figure of instrumental legal personality — the organ-person entity (órgano persona) — understanding that this does not involve exclusively conferring a competence upon a subordinate body to the detriment of the competence of the superior hierarchical body, but rather attributing that competence to a new legal person that is created and that will be, as follows from its functions and legal composition, attached to a superior body which, in the specific case, would be the Poder Judicial.
In this regard, this Chamber has understood that a body deconcentrated to the maximum degree with instrumental legal personality constitutes, in strict legal terms, an organ-person entity (see, in that regard, judgment No. 4681-97 of 14 hours 42 minutes of August 14, 1997, No. 2004-08474 of 15 hours 11 minutes of August 4, 2004, and No. 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 upon a deconcentrated body instrumental legal personality for the purpose of managing its own budget and thereby carrying out, more efficiently, the public function it is called upon to perform. Precisely, this budgetary personification (personificación presupuestaria) allows it to manage its resources independently of the budget of the public entity to which it belongs, even though it remains subordinate to that entity in all aspects not inherent to the function assigned to it by deconcentration and those derived from its instrumental legal personality (see, in that regard, judgment No. 2001-11657 of 14 hours 43 minutes of November 14, 2001).
It should be noted that, on this point, the petitioners argue that, despite the Corte Suprema de Justicia having issued a negative opinion on the bill processed in legislative file 19.922, and despite the fact that there was definitively an impact on the organization and functioning of the Poder Judicial, the Asamblea Legislativa continued processing the file, failing to take into account that the consequence of the position expressed by the Poder Judicial necessarily required the bill to be approved by a qualified majority. In advisory opinion No. 2018-005758 of 15 hours 40 minutes of April 12, 2018, we stated the following:
It is alleged that the Ley Marco de Pensiones was processed and approved by the Legislative Assembly without the mandatory consultation with the Supreme Court of Justice and the Caja Costarricense de Seguro Social being conducted, as required by Articles 167 and 190 of the Political Constitution. The alleged procedural violation for failure to consult the former was already considered by this Chamber in judgment number 0846-92, issued at thirteen hours thirty minutes on the twenty-seventh of March of nineteen ninety-two, which noted that the consultation was unnecessary because the law in question does not affect judicial employees in any way:
"In this regard, there is no reason to rule on the mandatory consultation with the Court, since the Court, in the context of the consultation conducted on the draft Ley Orgánica del Poder Judicial, accepted the amendment of the retirement age for its employees to sixty years, as the draft law provides, with a similar provision and without prejudice to similar reservations intended to protect rights acquired in good faith." Moreover, such a consultation is mandatory only with respect to the 'organization and operation' of the Judicial Branch, where 'operation' refers to the jurisdictional function, with the aim of guaranteeing the independence of the Judicial Branch; this procedure does not concern the granting of benefits to judicial employees, which is the subject matter under examination, and therefore the consultation is unnecessary." "As for the second argument, the Chamber finds that the pension scheme (régimen de pensiones) for judicial employees challenged here does not modify the legal framework under which the Supreme Court of Justice administers justice, nor does it reorganize the number or jurisdiction of existing courts.
Nor can a merely indirect effect be alleged against the provision — one that would arise from a change in the Judicial Branch's general budget, which in turn might affect the jurisdictional function. A second-order effect such as this does not constitute a criterion of sufficient constitutional importance to invalidate an act of the Legislative Branch." It should also be noted that in order to determine whether, as claimed, the Judicial Branch Pension Fund (Fondo de Pensiones del Poder Judicial) is part of its structure and operation and therefore within the protection of its functional independence, it is necessary to trace the matter back to its origins. As is known, the Pension Fund of the Judicial Branch was established by Law N° 34 of July 9, 1939. The discussion that would give rise to this system began to take shape several years earlier, in 1933. Prior to that date, there existed a general pension law (Ley General de Pensiones) issued in 1912 and extended in 1925, which established a single contribution system for employees of the Public Administration — understood in its broad sense.
However, in the case of Justices (Magistrados), the usual practice was for them to receive an amount fixed for each specific case by agreement of the Full Court (Corte Plena) once they decided to retire, in a modality similar to paid leave.
From the legislative records and historical documents, it emerges that in early June 1933 an event brought the precariousness of the existing system to the fore: the death of Justice Tomás Fernández Bolandi. The loss of one who was considered a great legal scholar had a profound impact on the Costa Rican legal world and highlighted the hardship left to the families of the most senior judicial officers. Indeed, within a few months the Full Court began receiving a series of letters, signed by both judges and other officials, referring to the financial difficulties in which the family of that Justice had been left; and very soon the need arose to create an independent pension system that would prevent that kind of economic distress.
While this concern was developing, Congress approved a new general pension law in 1935, which maintained the contribution system introduced in 1925; however, that text made no mention whatsoever of judicial employees — which contrasts with the specificity with which it included, among others, those affected by the disturbances in San Ramón in 1931, the families of those who fell in the Costa Rican-Panamanian war of 1921, and even the surviving relatives of those who served in the Campaña Nacional de 1856. This created the impression that it was the legislature's intention for the Judicial Branch to have its own scheme; however, that aspiration was not realized either when the Ley Orgánica del Poder Judicial was approved in November 1937.
It was not until June 1938 that a bill entered the legislative stream to add to that Law the provisions necessary for the creation of an independent pension scheme; but the pace at which this bill advanced accelerated after the death, in November of that same year, of Justice Antonio Álvarez Hurtado. This new death underscored the need to establish such a system, and several judicial employees again expressed this view through letters addressed to the Full Court.
Thus, in July 1939, Law N° 34 was finally enacted, which — as noted — amended the Ley Orgánica to add the provisions relating to the pension fund. The new statutory text also explicitly provided that judicial employees could not be required to continue contributing — under the terms of Law N° 115 of August 11, 1925 — to any other pension scheme. In other words, there is no doubt that the legislature's intention at that time was to keep the Judicial Branch's system completely independent and separate from the others.
As can be seen, the birth of the fund arose from a very particular historical moment and was part of the trend in political decision-making on this subject in the nineteenth century in our country — a trend toward specializing pension schemes rather than unifying them. From the regulations issued for war pensions following the conflict of 1856, and the creation of the first Teachers' Pension Fund (Fondo de Pensiones del Magisterio) in 1886 (through Law N° 21 of June 11 of that year), the prevailing current was toward the separation of pension schemes. For example, the general pension law of 1912 referred to above did not affect the Teachers' Fund, which itself underwent reforms in 1916 that broadened its solidarity character but never affected its independence.
Nor was this the spirit that inspired the birth of the Invalidity, Old Age, and Death (Invalidez, Vejez y Muerte, IVM) scheme administered by the Caja Costarricense de Seguro Social. Created by Law N° 17 of October 22, 1943, and in operation from 1947, it was conceived as a subsidiary scheme, since its coverage was initially limited to public employees over 65 years of age who were not contributing to another system. Moreover, during the same period, other special pension systems were created: the Hacienda scheme (1943), that of the Registro Nacional (1939), Communications (1940), MOPT (1944), INCOFER (1939), and even Musicians and Military Bands (1935). All the antecedents indicate that the different schemes were intended to coexist alongside 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 sectors of society.
What is clear is that the creation of the Judicial Branch's pension scheme was key to the administrative and judicial career stability (carrera administrativa y judicial) of its employees and officials, and became an essential complement to the judicial career (carrera judicial), as a guarantee of judicial independence (independencia de la judicatura). Together with the latter, it made it possible to provide stability to judges and other employees and officials both while active and inactive, which made the judicial career attractive to many legal professionals and thereby fostered the stability and specialization of many officials across the various branches of the judicial apparatus. However, it was clearly not created as an intrinsic element of judicial independence — the core aspect of the constitutional protection under Art. 167 when it speaks of "structure and operation" — which is constitutionally grounded in other factors, such as the existence of a career system that guarantees objectivity in the selection of judges based on criteria of merit and tenure security, and the economic and political independence of the institution, among others. The legislature could well have opted for a single scheme for all public employees or workers in general without it being possible to argue that this diminishes the institution's independence.
What is part of judicial independence is that judges have adequate and dignified economic sufficiency, both while active and inactive, regardless of whether the pension scheme is specific to judges or not. In fact, not all countries have separate schemes for judges, but the more consolidated democracies do take care to protect the judiciary as a key component of the stability of the rule of law. Countries that have bet on the force of law rather than the force of arms for their stability depend on the quality of their judges for the quality of their democracy, since judges are the strategic guardians of the rule of law. In the case of our country, as the Estado de la Nación has rightly noted, the Judicial Branch has the distinctive characteristic of being a conglomerate of institutions that are highly relevant to the rule of law (the Office of the Public Prosecutor, the Judicial Police, the Public Defender's Office, and the Judiciary), and it was the strength of this conglomerate that largely enabled the development and consolidation of democracy in the twentieth century in our country. This is set out in the first report of the Estado de la Justicia, which 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 justice administration system and without the recent efforts to modernize it." In that sense, it was a wise decision by the legislature to endow the Costa Rican administration of justice with guarantees and incentives, because only in this way could the rule of law that emerged from the Segunda República be made real — a rule of law that would depend for its success on a robust framework of legality and no longer — as noted — on the force of arms, the path that most countries in the world, and especially in Latin America, had chosen.
Nevertheless — from the perspective of the majority of the Chamber — it cannot be affirmed that the Judicial Branch's pension scheme is part of the essential content of judicial independence or that it affects the Branch's structure and operation, although, as stated, it has historically functioned as a necessary complement thereto, and for the sake of Costa Rican democracy it must be ensured that it is as stable and dignified as possible.
Now, in light of the foregoing, this Tribunal considers that the subject matter of legislative file number 19.922 does not fall within the circumstances established by Article 167 of the Political Constitution and, therefore, there was no obligation to consult the Supreme Court of Justice. In that regard, it is established that, while the challenged bill creates a body attached to the Judicial Branch—namely the Board of Directors of the Judicial Branch Pension and Retirement 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), those elements relate to matters that are inherent to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), that is, functions that are typically administrative in nature and that do not bear directly on the jurisdictional function of the Judicial Branch—which is precisely what constitutional provision 167 protects.
We are not, therefore, faced with the creation, substantial modification, or abolition of strictly jurisdictional bodies or administrative bodies attached to the Judicial Branch, nor with the creation ex novo, substantial modification, or elimination of functions that are materially jurisdictional or administrative in nature. It should be noted that the new body—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 structure of the Judicial Branch, whose functions are typically administrative, namely the administration of the aforementioned Fund, which cannot be subsumed within 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 function—and those essential administrative functions that support its primary function.
In any event, and without prejudice to the foregoing, it is necessary to mention that folio 2625 of the legislative file shows that, pursuant to a motion approved on July 27, 2017 by the Special Committee, through official letter number AL-20035-OFI-0043-2017 of July 31, 2017, the head of the Committee Division of the Legislative Assembly afforded the Judicial Branch an opportunity to be heard with respect to the majority affirmative committee report, whereupon the Supreme Court of Justice issued its opinion through official letter number SP-253-17 of August 10, 2017, as confirmed by an examination of folios 2759 through 2807 of the legislative file. In that regard, it is therefore clear that the Judicial Branch was indeed able to issue its opinion with respect to the substitute text approved by the Special Committee on July 27, 2017, even before it was considered by the full Assembly (Plenario).
In light of the foregoing, the Chamber finds that the procedural defect alleged by the petitioners does not exist." (emphasis not in the original) The majority of this Tribunal finds no grounds justifying a departure from the criterion already expressed in that advisory opinion, to the effect that the subject matter addressed in legislative file no. 19.922—which was ultimately enacted as Law no. 9544—does not fall within the circumstances established or contemplated by Article 167 of the Political Constitution and, therefore, neither was there a constitutional obligation to consult the Supreme Court of Justice, nor—as a corollary—was there an obligation for the aforementioned bill to be approved by two-thirds of the total membership of the Legislative Assembly in the event of a negative opinion from the Supreme Court of Justice on the bill. Accordingly, the action of unconstitutionality must likewise be dismissed with respect to this point.
XXI.Drafted by Justice Castillo Víquez. On the organization and functioning of the Judicial Branch in relation to the Principle of Judicial Independence. Finally, some of the petitioners argue that the impact of Law 9544 on the organization and functioning of the Judicial Branch extends to the Principle of Judicial Independence and that this principle is affected by several factors: a) the creation of the Administrative Board; b) the elimination of the functions held by Plenary Court (Corte Plena) and the Superior Council with respect to the administration of the Retirement and Pension Fund; c) because the Judicial Branch was deprived of the competence to determine its own organization, thereby altering the protective shield that this principle affords it against interference by the Political Branch; d) because the system of checks and balances was altered and the Legislative Branch intruded upon the Judicial Branch by making changes to the rules governing its administrative structure with an impact on the budget; e) that although the Original Constituent Assembly gave clear indications of its intent to guarantee independence for the Judicial Branch, both at the budgetary level and in terms of organization and functioning, the legislative procedure that resulted in the challenged Law 9544 has constituted a violation of Articles 9, 11, 152, 154, 167, and 177 of the Political Constitution.
Certainly, the Chamber, in judgment No. 2008-005179 of 11:00 a.m. on April 4, 2008, stated that it was necessary to take into account that constitutional Article 167 harmonizes two fundamentally important aspects: on one hand, the independence of the Judicial Branch, and on the other, the exercise of the legislature's freedom of configuration or lawmaking discretion (libertad de configuración), which has no limit other than Constitutional Law, specifying that the ordinary legislature enjoys broad freedom to shape social, economic, and political reality through the exercise of legislative power, which resides originally in the people and is constitutionally delegated to the Legislative Assembly by virtue of its character as a representative political body (Articles 105 and 121, paragraph 1°, of the Political Constitution), and that this legislative power may only be subject to the limits established by the constituent assembly and, in general, by the constitutional bloc, so that in order to avoid undue restriction of the legislative freedom of configuration, any provision establishing a condition or limit that aggravates it must be interpreted within its proper and reasonable terms, so as to facilitate its exercise.
The Chamber stated on that occasion that an important barrier established by the constituent assembly to legislative discretion is precisely the provision of Article 167 of the Constitution, in order to preserve the independence of the Judicial Branch by requiring mandatory consultation of bills relating to the organization and functioning of that Branch of Government, and it further held that this limit must be interpreted in its true dimension, so that it operates when a bill substantially, objectively, and certainly relates to such matters, since otherwise the ordinary legislature's freedom of configuration would be unnecessarily and unjustifiably restricted. Drawing upon this contextual framework set forth by the Chamber in the aforementioned judgment, and upon examining the full content of Law 9544, this Tribunal, as the supreme interpreter of Constitutional Law and guardian of constitutional supremacy (Articles 10 of the Political Constitution and 1° of the Law on Constitutional Jurisdiction), finds that, in the present case, the challenged legislation, viewed as a whole and in light of each of the arguments raised by the petitioners, does not bear on the organization and functioning of the Judicial Branch.
First, it must be recalled that the Chamber has upheld a consistent criterion to the effect that mandatory institutional consultations such as the one provided for in Article 167 of the Political Constitution would be inappropriate when a bill is national or general in scope (see judgments number 2018-019511 of 9:45 p.m. on November 23, 2018, 2012-002675 of 11:52 a.m. on February 24, 2012, and 2008-004569 of 2:30 p.m. on March 26, 2008); however, as explained in the preceding section, upon the enactment and entry into force of the challenged law, the majority of this Tribunal concludes that there is no impact on those matters within the meaning of constitutional Article 167. The mere fact that an Administrative Board of the Judicial Branch Retirement and Pension Fund is created does not in itself entail the creation of a body that substantially alters the administrative functions of the Judicial Branch; the same applies to the elimination of those functions previously held by the Supreme Court of Justice and the Superior Council in relation to the subject matter, and therefore the circumstances contemplated by Article 167 of the Fundamental Charter were not present.
In other words, essential administrative competencies connected to the jurisdictional function were not being removed. Moreover, as is well known, the administration of the aforementioned fund is financed by a parafiscal contribution (contribución parafiscal) of 5 per 1,000 colones of the salaries of active employees, pensioners, and retirees. We are not, therefore, faced with a creation ex novo that substantially alters the administrative functions of Corte Plena and removes others from it, as it also does with the Superior Council. In that regard, the Chamber itself held in judgment number 2008-004569 of 2:30 p.m. on March 26, 2008, that a reinforced law (ley reforzada) might be deemed necessary when the competencies assigned or transferred represent a substantial change in the purposes and responsibilities of the entity that, in this case, would be the highest representative of the Judicial Branch, namely Corte Plena—which is precisely the circumstance in which we find ourselves.
It is important to recall that the concept of judicial independence has two dimensions: the individual dimension (also called personal or subjective) and the institutional dimension (relating to the Judicial Branch). For the purposes of this action, it is important to bear in mind that a transcendental element in preventing the principle of judicial independence from being rendered nugatory is understanding that it encompasses several facets beyond the organic, institutional, and functional ones, and that it may also be viewed from the individual dimension, relating to the worker of the Judicial Branch in relation to all the surrounding factors that, in turn, enable the full and effective guarantee of that principle as it applies to 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 must be recalled that the legislators who—at the time—approved the reform to Article 177 of the Political Constitution had the foresight to secure for this Branch of Government a minimum budget of 6% of the ordinary revenues of the Republic with which it could carry out the functions and powers conferred upon it, thereby preventing budgetary determination from becoming an instrument of political intervention in the jurisdictional function and, consequently, a mechanism for leaving the independence of this Branch of Government adrift. In this regard, the Chamber stated this very clearly in judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, when it held:
What is indeed part of judicial independence (independencia judicial) is that judges have dignified economic security, both while active and inactive, regardless of whether the pension system is specific to judges or not. In fact, not all countries have particular pension systems for judges, but the most consolidated democracies do take great care to protect the judiciary as a key element of the stability of the rule of law (estado de derecho). Countries that have placed their bet on the force of law rather than arms for their stability depend on the quality of their judges to achieve quality of democracy, as judges are the strategic guardians of the rule of law. In the case of our country, as the Estado de la Nación has rightly noted, the Poder Judicial has the particular characteristic of being a conglomerate of institutions highly relevant to the rule of law — the Public Prosecutor's Office (Fiscalía), the Judicial Police (Policía Judicial), the Public Defense Office (Defensa Pública), and the Judiciary (Judicatura) — and it was the strength of these institutions that largely enabled the development and consolidation of democracy in our country during the twentieth century. This is recorded in the first report of the Estado de la Justicia, which states:
"The Poder Judicial 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 administration of justice and without the recent efforts to modernize it." In that sense, it was a sound decision by the legislature to provide guarantees and incentives to the Costa Rican administration of justice, because only in that way could the rule of law that emerged from the Segunda República be realized — a rule of law that, for its success, would depend on a robust system of legality and no longer, as stated, on the force of arms, the path chosen by the majority of countries in the world, especially the Latin American ones." The Court has also noted that:
"(…) What is clear is that the creation of the Poder Judicial's pension system was key to the stability of the administrative and judicial career (carrera judicial) of its employees and officials, and came to serve as a fundamental complement to the judicial career, as a guarantee of the independence of the judiciary. Together with the judicial career, it provided stability to judges and other employees and officials both while active and inactive, which made the judicial career attractive to many legal professionals and thereby fostered the stability and specialization of many officials in various branches of the judicial apparatus; however, it was clearly not created as an intrinsic element of judicial independence — the core aspect of the constitutional protection under Article 167 when it speaks of 'structure and functioning' — which is constitutionally grounded in other factors, such as the existence of a career system that guarantees objectivity in the selection of judges based on criteria of suitability and stability, and the economic and political independence of the body, among others; the legislature could well have opted for a single system for all public employees or workers in general, without it being possible to assert that this would diminish the independence of the body" (see ruling number 2018-005758 of 15:40 hours on April 12, 2018).
In connection with the foregoing, it is important to note that this Court, in ruling number 2018-005758 of 15:40 hours on April 12, 2018, further stated:
"Nevertheless, it cannot be affirmed — from the perspective of the majority of the Court — that the Poder Judicial's pension system constitutes part of the essential content of judicial independence or that it affects the structure and functioning thereof, although, as stated, it has historically functioned as its necessary complement and, for the good of Costa Rican democracy, efforts must be made to ensure that it is as stable and dignified as possible." From this opinion, it is worth emphasizing that, while it is true that the majority of the Court considers the Poder Judicial's Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial) — understood as a whole, as a social security (seguridad social) system that seeks to guarantee for judicial personnel protection against contingencies arising from old age, disability, or death through the recognition of a retirement benefit (jubilación), pension, and benefits determined by law through funds collected and designated for that purpose — to be, as an instrument, of great relevance for the strengthening of the Poder Judicial, this does not mean that it is a condition without which an independent Poder Judicial cannot exist.
In that sense, it is one thing to recognize the role that the Poder Judicial's pension system has played in strengthening the stability of the judicial career and the Poder Judicial as such, and quite another to hold that the existence of an autonomous pension system is a necessary condition for judicial independence to exist. Not all countries have an autonomous pension system for their judges and officials, and it cannot be said that this per se implies that their justice administration systems do not enjoy independence. In our country, the Tribunal Supremo de Elecciones itself, which enjoys independence in the exercise of its powers, does not have its own autonomous pension system for its judges, and no one could assert that this violates its independence when acting as a jurisdictional body. Thus, the fact that it may be advisable to protect the pensions of judges and judicial personnel in general and to protect the Poder Judicial from the influence and negative interference of external factors such as political power, organized crime, and criminal groups, among others, does not mean that the legislature's initiative to make changes to its pension system — based on actuarial studies and the appearance of technical experts during the legislative proceedings — amounts to a hollowing out of the essential content of judicial independence.
Nor does the Court consider that the challenged law is detrimental to the economic independence of the Poder Judicial, protected under Article 157 of the Constitution, because the constitutional 6% as the guaranteed minimum threshold for the administration of justice is not affected by the challenged law. The Asamblea Legislativa has respected this percentage for the Poder Judicial and has in fact, for more than 15 years, allocated a higher percentage, taking into account new assignments and functions granted through legal reforms. In any case, the record does not demonstrate that the 6% allocation is affected by the public resources directed to the Poder Judicial's Retirement Fund (Fondo de Jubilaciones del Poder Judicial).
Based on the foregoing considerations, a qualified majority (mayoría calificada) was not required for its approval, and given that the bill in legislative file No. 19.922 was approved in First Debate with 31 legislators in favor and 7 against (folio 4173, Volume 17 of the legislative file), while in Second Debate it was approved with 34 legislators in favor and 9 against (folios 4437, 4608, and 4637, Volume 18 of the legislative file), the Court does not find that the alleged defect with respect to the principle of judicial independence is established.
ARGUMENTS OF UNCONSTITUTIONALITY IN RELATION TO SUBSTANTIVE ASPECTS OF LAW No. 9544.-
XXII.Drafted by Magistrate Hernández López. The petitioners raise various substantive claims on the basis of which they consider Ley 9544 to be unconstitutional and, although the entire law is challenged, the principal arguments are in fact directed against Articles 224, 224 bis, 226, 227, 236, 236 bis, 239, Transitorio II, and Transitorio VI of Ley 9544. As has been noted, the Retirement and Pension System of the Poder Judicial, which was contained in Title IX of the Ley Orgánica del Poder Judicial, was completely reformed by Ley 9544, which contains 4 chapters covering the following topics: Chapter I, "Benefits" (Prestaciones); Chapter II, "Transfer of Contributions" (Traslado de Cotizaciones); Chapter III, "The Fund" (El Fondo); and Chapter IV, "The Administration" (La Administración). It also contains a section of 6 Transitional Provisions (Disposiciones Transitorias). To facilitate the analysis of the substantive arguments raised in this constitutional challenge (acción de inconstitucionalidad), the Court will proceed to divide the work according to the chapters of the law, and it will be within each chapter that the relevant issues will be assessed in connection with the corresponding articles.
Nevertheless, this Court does consider it indispensable to first make reference to certain general concepts that bear on the entire subsequent analysis, for which reason it is advisable to treat them as the foundation and context from which the Court proceeds to reach its decision.
A.- GENERAL ELEMENTS RELEVANT TO THE SUBSTANTIVE DECISION IN THIS CASE.
XXIII.Drafted by Magistrate Hernández López. On the right to enjoy a retirement benefit. This Court has clearly stated that the model of the social rule-of-law State (Estado social de Derecho) and the concept of social security adopted by our Constitution includes — as one of its elements — the right of workers to obtain a retirement benefit upon fulfillment of certain conditions established by law. This is one of the forms of expression of the fundamental right to social security enshrined in our constitutional norms, to which are added health insurance, the various types of contributory retirements, as well as non-contributory retirements, among others. In this regard, ruling 2018-19030 of November 14, 2018, which served as the basis for resolving various retirement-related claims, clearly set out the characteristics that this Court has specifically defined for this right:
"IV.- On the right to retirement. A retirement benefit constitutes the economic benefit obtained after working and contributing to a given system for a specified period, the purpose of which is to guarantee a dignified life for the person after their working years have ended. This Court has held, on repeated occasions, that the right to a pension must be classified as a fundamental right, derived from Article 73 of the Constitution, and that it is acquired from the moment the person fulfills all the requirements established by the corresponding legislation. Likewise, the existence of different systems has been recognized, such as Collective Capitalization (Capitalización Colectiva), in which periodic contributions from members create a common fund from which the pensions of participants are paid, or Individual Capitalization (Capitalización Individual), in which periodic contributions come not from a group of persons but from an individual who, through contributions to the fund, seeks to guarantee payment of their pension when they meet the requirements for obtaining it.
Finally, there is the pension system funded by the National Budget (Presupuesto Nacional), in which the financing of retirements and pensions is borne by the national budget. Regarding the general issue of the right to a pension, in rulings numbers 1147-90 of 16:00 hours on September 21, 1990, 487-94 of 16:06 hours on January 25, 1994, and 2010-1625 of 9:30 hours on January 27, 2010, the Court expressed, insofar as relevant, the following:
"III.- In the first place, the Court declares that there does exist a constitutional and fundamental right to retirement in favor of all workers in general; a right that, as such, belongs to and must be recognized for every human being, in conditions of equality and without any discrimination, in accordance with Articles 33 and 73 of the Constitution, which provide:
"Article 33 'Every person is equal before the law, and no discrimination contrary to human dignity shall be made'" "Article 73 Social insurance is established for the benefit of manual and intellectual workers, regulated by a system of compulsory contributions from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law…" That conclusion is confirmed by a series of international human rights principles and norms, which carry not only a rank superior to ordinary legislation as conferred by Article 7 of the Constitution, but also direct constitutional protection that practically equates them to the rights expressly enshrined in the Constitution itself, pursuant to Article 48 of the same (as amended by Ley No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29, and 30—corrected as cited in the action—of the Social Security Convention, No. 102 of the ILO (OIT), which provide:
"Article 25 Each Member for which this Part of the Convention is in force shall secure to the persons protected the grant 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 at least:
"2. Where the grant of the benefit referred to in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least:
"a) To a protected person who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of fifteen years of contribution or employment…" "Article 30 "The benefits referred to in Articles 28 and 29 shall be granted throughout the contingency." Other international instruments 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; arts. 22 and 25, Universal Declaration of Human Rights; art. 31, Inter-American Charter of Social Guarantees; art. 5, Convention on Equal Treatment in Social Security, No. 118 OIT), 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, both categories of the aforementioned norms recognize the fundamental right of every worker to retirement, and they clearly refer to old age, in the relevant respect, as the "contingency" that triggers the right to a benefit—retirement. The objection raised by the Procuraduría General is therefore incomprehensible, when it asserts that the provisions of Convention No. 102 OIT only protect "workers who suffer a contingency within their employment relationship, which is not the case of the petitioner… (f. 62 fte.); thereby apparently giving the term an incomprehensible meaning of abnormality, with no explanation whatsoever."
(…)
"II. This Chamber has already addressed the issue raised on other occasions (the constitutional and fundamental right to retirement and pension in favor of all workers), with sufficient elements and case law existing to allow its consideration in accordance with the second paragraph of Article 9 of the Ley de la Jurisdicción Constitucional.
III.By rulings number 6124-93, issued at fourteen hours thirty minutes, and 6125-93, issued at fourteen hours thirty-three minutes, both on the twenty-third of November of the current year, two actions of unconstitutionality were addressed whose allegations were the same as those invoked by the petitioners in this action. In ruling number 1147-90, issued at sixteen hours on the twenty-first of September of nineteen ninety, the Chamber held that a pension or retirement benefit constitutes a fundamental right with constitutional and international recognition that:
"belongs 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 O.I.T., Article 16 of the American Convention on the Rights and Duties of Man, Articles 22 and 25 of the Universal Declaration of Human Rights, Article 31 of the Inter-American Charter of Social Guarantees, Article 5 of the Convention on Equal Treatment in Social Security, number 118 of the O.I.T., Article 9 of the International Covenant on Economic, Social and Cultural Rights—all at the international level—which, pursuant to Article 7 of the Constitution, are integrated into our legal order.
IV.Membership in a specific pension or retirement system is acquired from the moment one begins contributing to that system, but not so the concrete right to retirement, which is acquired when the interested party fulfills all of the prerequisites established by law, (…)"
(…).
"IV. The right to retirement and the Social Rule of Law (Estado Social de Derecho). Articles 50, 56, and 74 of the Constitución Política configure 'the model of the social and democratic Rule of Law' (Res. 9255 of 16:03 hours of 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 Rule of Law 'entails an orientation of our political system 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, rejecting arbitrary and unreasonable discrimination' (Res. 13205 of 15:13 hours of September 27, 2005). Consistently, and grounded in the Social Rule of Law, 'our Constitución Política contemplates a set of benefit-providing rights related to the protection of… workers' (ibid), as is the case of the right to retirement. (…)". (Sentencia 2018-19030 of November 14, 2020)
XXIV.Drafted by Magistrada Hernández López. The limitations and regulation of the scope of the right to retirement recognized in favor of workers. On the subject of the right to retirement, this Tribunal has also emphasized the power of the State to regulate, order, and limit the scope of that right. In the same Sentencia 2018-19030, just 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 may be subject to certain limitations, provided that these are established by formal law, are reasonable, and do not prevent its exercise. Thus, the Chamber has held that the legislature has the power to impose restrictions on the right to a pension when it can be demonstrated that certain situations exist—such as inequalities or privileges—that jeopardize the sustainability of a system and thereby threaten the very nature of the system as such. On this point, in voto número 2379-96 of 11:06 hours of May 17, 1996, the following was established:
II.ON THE RIGHT TO RETIREMENT.- In repeated rulings, a pension or retirement benefit 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 the twenty-first of September of nineteen ninety, in which it was established:
"First, this Chamber declares that a constitutional and fundamental right to retirement does exist, in favor of every worker in general; a right that, as such, belongs 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 Constitución Política…" However, that same ruling established that this 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 these 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. This is nothing other than an expression of a well-known principle of the Law of Human Rights, which may be called the principle of proportionality, and which is generally set forth as a condition sine qua non for the limitations and restrictions on such rights that are exceptionally authorized by the very texts that enshrine them." From the foregoing it is clear that within the entire universe of limitations, conditions, and restrictions to which the fundamental right to retirement may be subject, there will be a group of them that can be deemed constitutionally valid provided they meet two conditions, namely: a) that they originate from the texts that recognize said rights and guarantees, and b) that they are necessary for the exercise of the right itself in accordance with its nature and purpose.
It is also correct to conclude that—by imperative of the structural logic of our legal order—the first of the conditions just noted may be broadened to include limitations and conditions originating from texts of superior hierarchy or of the same rank, as is the case here with the limitations that may arise from the Constitución Política itself, understood not only as a collection of norms, but as a set of integrated regulations and principles with an aspiration of harmony (…)".
Those concepts were endorsed by a majority of the Chamber when the legislative consultation on the bill that ultimately became ley 9544, discussed here, was resolved. In that pronouncement (Sentencia 2018-005758) it was reaffirmed:
"(…) It should be noted that the right to retirement is not unrestricted, as it may be subject to certain limitations, provided that these are established by formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislature has the power to impose restrictions on the right to retirement when it can be demonstrated that certain situations exist that jeopardize the sustainability of a system and thereby threaten the very nature of the system as such." And further on, it concluded that:
"Now, from the foregoing it is clearly apparent that the right to retirement may be subject to limitations, like any other fundamental right. This means that there is no right of an individual to retire under specific conditions, since those conditions may be varied when necessary to guarantee the existence of a specific pension and retirement system; for if that were not so, conditions could be created that render the system financially unsustainable, which would ultimately result in the right to retirement being severely affected, or its exercise becoming entirely impossible, due to the absence of funds that would prevent payment of the retirement benefit to the interested party. (…)" From the foregoing, it is concluded that the thesis permitting the State, through its competent authorities, to adjust the specific conditions governing the exercise of the retirement right (derecho de jubilación) enjoyed by workers has been consistently upheld in the case law of this Court — not only through the establishment of requirements that must be met in order to actually enjoy that right, but also through targeted modifications to the characteristics of that enjoyment, with the aim of preserving the sustainability of the scheme while respecting the requirement that changes "be established by means of a formal law, be reasonable, and not affect its essential content." (See sentencia 2018-5758, cited above.) Accordingly, in the remainder of this judgment the Court proceeds to review the changes made to the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) by means of formal law number 9544 enacted by the Asamblea Legislativa, in order to determine whether the state authorities have exceeded those parameters, all in accordance with the issues and the specific arguments advanced by the various petitioners.
B. CLAIMS RELATING TO CHAPTER I, ENTITLED "BENEFITS," OF TITLE IX, "JUDICIAL BRANCH RETIREMENT AND PENSION REGIME," OF THE ORGANIC LAW OF THE JUDICIAL BRANCH
XXV.Drafted by Justice Hernández López. On the reasonableness and proportionality of the eligibility requirements and benefits established in Chapter I, "Benefits," as amended by Law number 9544.- In order to support their allegation of an alleged violation of the principles of reasonableness and proportionality caused by the enactment of the challenged law number 9544, some of the petitioners contend that the eligibility conditions and retirement benefits do not conform to the technical studies submitted to the legislative file, while another group of them acknowledges that the legislature relied on technical studies but disregarded more suitable options, thereby undermining the reasonableness of its decision.
In this regard, the "benefits" chapter of Ley 9544 incorporates a modification of the requirements under which judicial servants may acquire the right to retirement and the monetary amount thereof, as provided in Article 224 of that statute:
"Article 224 — Judicial servants with twenty or more years of service in the Judicial Branch may opt for ordinary retirement (jubilación ordinaria) 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 (IPC) 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." For its part, Article 224 bis regulates the conditions for obtaining early retirement (jubilación anticipada) in the following terms:
"Article 224 bis — Servants with twenty or more years of service in the Judicial Branch may opt for early retirement if the age or the number of years of service referred to in the preceding article has not been met. It shall be calculated as follows:
With respect to early retirement, the changes may be summarized as follows:
In the third place, it is observed that the pensions of those who become permanently disabled (incapacitados de forma permanente) have not been affected in their particular structure; rather, the objection is tied to the change made to the challenged Article 224, which establishes the mechanism for determining the gross amount of the ordinary pension, upon which, in turn, the pension that may correspond to persons affected by that contingency will depend.
The petitioners note that precisely this reformulation of the requirements and benefits established in the challenged Articles 224 and 224 bis marks the beginning of the substantive problems that, in their view, Law 9544 contains: the retirement age and the number of years the official must work are increased, while the sum to be received as a retirement benefit relative to the salary earned at the time of retirement is reduced — to which is added the application of all legally established deductions, which in many cases results in the amount received being less than 55 percent of the last salary earned, a result that is plainly ruinous. Accordingly, they allege a violation of the principles of reasonableness and proportionality, since — for some of them — the Asamblea Legislativa departed from the technical criteria and chose to adopt a system lacking any foundation or support, while another group argues that, even though technical criteria were taken into account, less harmful and more reasonable and proportionate options that were raised during the course of the legislative proceedings were set aside.
XXVI.Continued by Justice Hernández López. The informants called in this proceeding stated the following regarding the alleged violation of proportionality and reasonableness in the new design. The Procuraduría General de la República states in its report that the need to make the disputed changes to the Judicial Branch pension regime derives directly from the actuarial studies (estudios actuariales) on which that reform was based. In other words, raising the retirement age and the number of years of contribution and reducing the economic benefits for retirees was not a decision made at the legislature's whim, but rather the result of the situation of the regime as reflected in the aforementioned actuarial studies, leading to the conclusion that the changes made have the necessary technical backing to affirm their conformity with constitutional law. It notes that the matter was already subject to specific analysis by the Court in the legislative constitutionality consultation that gave rise to the widely cited sentencia number 2018-5758.
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 retirement or pension benefit; all of this, combined with the existence of the technical studies on which action was taken, demonstrates that the modifications do not infringe the principles of reasonableness and proportionality.
The report submitted by the President of the Asamblea Legislativa stated: "It must therefore be understood that the law under analysis does not respond to arbitrary or capricious criteria — a matter already analyzed by the Honorable Constitutional Court — and therefore does not constitute any violation of the constitutional principles of reasonableness and proportionality," referring to the fact that the Special Committee that reported on the bill took into account the aforementioned technical study and also had the participation of the Technical Committee created by the Judicial Branch, and further referring to the fact that in sentencia number 2018-005758 of 3:40 p.m. on April 12, 2018, the Court had noted that such technical studies had been available.
The Vice President of the Supreme Court of Justice states in her report that, with regard to the percentage established in Article 224 of Law No. 9544, it is necessary to take into account that judicial employees (personas servidoras judiciales), at the time they retire, continue contributing to the Judiciary Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) through an employee contribution (aporte obrero) of 13% pursuant to Article 236 of that same body of law, unlike other retirement and pension regimes; for this reason, the amount of their retirement benefit would be reduced, and one must also add other deductions, such as the deduction for administrative expenses of the Administrative Board of the Judiciary Retirement and Pension Fund, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial employees, as well as of the retirement benefits and pensions charged to the fund, which could be seen as confiscatory (constitutional Article 40) or as a violation of the principle of non-retroactivity of the law (Article 34 of the Political Constitution), given the existence of acquired and vested patrimonial rights (derechos patrimoniales adquiridos y consolidados) under a prior law. The Vice President of the Judiciary also notes that, according to the report approved by the Full Court (Corte Plena) in session No. 26-17 of August 7, 2017, Article XXX:
"(…) this Court has been respectful—and will continue to be—of the technical studies issued to ensure the Fund's sustainability; however, it cannot be overlooked that fundamental rights are at stake, and it is for that reason that the reform also deserves a study grounded in actuarial methodology but also informed by a human rights perspective.
In that regard, it is worth noting that ILO Recommendation No. 43, 'Recommendation Concerning Invalidity, Old-Age and Survivors' Insurance,' at point 13), subparagraphs (a) and (b), states that:
'(a) In order to guarantee workers an old age free from want, the pension should cover essential needs. It is therefore desirable that the pension guaranteed to any pensioner who has completed a specified qualifying period be fixed with due regard to the cost of living.
(b) In schemes with contributions proportional to wages, insured persons who have credited to their account contributions corresponding to the average duration of the active working life should receive a pension corresponding to their social status during the period of professional activity. To this end, the pension guaranteed to insured persons who have completed thirty effective years of contributions should not be less than half of the insured wage from the time of entry into insurance or during a specified period immediately preceding the settlement of the pension.' (Emphasis added.)
It is therefore clear that both ILO Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that retirement and pension benefits must satisfy the essential needs of persons in their old age, and that the amount must therefore be fixed taking into account the 'cost of living and social status during the period of professional activity.' In other words, the standard of living that the worker maintained during his or her active professional life must be respected.
The need to reform the Retirement and Pension Fund in order to ensure its sustainability is not denied, but such reforms must be clothed in suitability and reasonableness (idoneidad y razonabilidad), as the Constitutional Chamber indicated in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when it declared unconstitutional the cap on pensions established in Article 234 of the Organic Law of the Judiciary. This is consistent with what the Inter-American Commission on Human Rights stated when, in analyzing the admissibility of the case 'Admissibility and Merits — National Association of Former Employees of the Peruvian Social Security Institute and Others 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 comprehensive analysis has been conducted of the individual impact on the right in question (in this case, to retirement and pension) in relation to the collective implications of the measure."
XXVII.Drafted by Justice Araya García. This Tribunal finds that, as both the Attorney General's Office (Procuraduría) and the Presidency of the Legislative Assembly note, both the question of the absence of technical criteria on which to base the decisions of the reform carried out in the Judiciary Retirement and Pension regime, and the fact that a more favorable option for fund participants was passed over with respect to eligibility requirements and the method of calculating retirement benefits, had already been addressed when this Tribunal had the opportunity to analyze the legislative texts in the wording that ultimately became law of the republic. In judgment 2018-5758, which responded to the aforementioned constitutional consultation, the following was stated on that point:
"XIX.- On the lack of studies for establishing the pension calculation. The petitioners consider that Article 224 of the bill is contrary to constitutional Article 73. They argue that the challenged article provides that the pension calculation shall be obtained from the average of the last 20 years of salaries earned by the worker, without any technical studies regarding the actual impact on the fund's reserves. They add that the study used as a basis was the one issued by the University of Costa Rica, but that study set as the limit for the pension calculation the last 120 salaries (10 years), and they therefore consider that the Special Commission exceeded its purview when, without technical justification, it changed the calculation criterion from the last 120 salaries to one of 240 salaries. They also consider it illegitimate to treat the annual return on Fund investments at 3% as absolute, without taking into account that actual returns were higher.
With regard to the first of these arguments, the Chamber finds, after reviewing the record, that the alleged defect is ruled out, since at folio 2942 of the legislative file there is letter No. IICE-186-2017 of August 18, 2017, in which the director of the Institute for Research in Economic Sciences of the University of Costa Rica endorses the parameter established by Article 224 of the bill, stating the following on the 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), adjusted by 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 over the last 20 years, adjusted for inflation, is 4.8% lower than the average salary over the last 10 years for new retirees, given the merit scale currently in force in the Judiciary. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulations, works in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we will refer in the following subparagraph.
b. Employee contribution and member benefits (…)
The Majority Opinion proposes a benefit of 85% of a reference salary of 240 months (instead of 120 months), with an employee contribution that, as noted, consists of a differentiated scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale have already been identified; since it is left to the discretion of the Judiciary's own Administrative Board, it 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 appropriate and advisable to establish a single, clearly defined employee contribution with a reasonable link between that contribution and the benefit received by fund 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 note that the Majority Opinion fixes the employer contribution at 14.36% (Article 236, paragraph 2), de-linking it from proportional increases in the employee contribution, an aspect that aligns with the IICE's recommendation.' In that regard, upon finding that, contrary to what is asserted in the initial pleading, there does exist a technical opinion endorsing the parameter established by the bill with respect to the reference salary for pension calculation, the Tribunal rules out the existence of the alleged defect.
Furthermore, with respect to the petitioners' second argument, the Chamber finds that what is essentially being questioned is whether the parameters that served as the basis for setting the requirements to obtain the right to a pension were appropriate or not—an issue that does not imply that the provision is unconstitutional, as the petitioners contend, and the alleged defect is therefore found to be nonexistent." In a similar vein, the same judgment had previously stated:
"XV.- On the alleged violation of the principle of judicial independence. (…) The Chamber finds that the foregoing satisfies what has been established by international doctrine, in the sense that it is the public authorities who bear the burden of proving that cutbacks are justified in light of the totality of socioeconomic rights, and that if an administration finds it necessary to adopt regressive measures with respect to the right to pension and retirement, it must have a technical study regarding the effects that such measures may have on the rights of those affected and on the regime, as well as a showing that no less burdensome measures could have been taken—a requirement that is met in this case, taking into account the analyses carried out by the University of Costa Rica in the actuarial studies of the Judiciary Retirement and Pension Fund. (…) Thus, in light of the foregoing, the Chamber does not find the alleged defect to be present." And a little further on it added:
XVII.On the changes in the requirements for obtaining the right to a pension. The petitioners consider that Article 224 of the bill violates the principles of proportionality and reasonableness, inasmuch as the retirement age and the number of years the official must work are increased, while the percentage of money to be received as a pension (jubilación) with respect to the salary earned is reduced. They also challenge Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the right to a pension may do so under the terms established by Ley N° 7333. The challenged provisions read as follows: (…) It should be noted that the right to retirement (jubilación) is not unrestricted, as it may be subject to certain limitations, provided that these are established by formal legislation, are reasonable, and do not affect its essential content. Thus, the Court has held that the legislature has the power to impose restrictions on the right to retirement when it can be demonstrated that certain circumstances exist that jeopardize the sustainability of a given pension system and, consequently, undermine the nature of the system as such. In this regard, voto número 2379-96 of 11:06 a.m. on May 17, 1996, established the following:
(…)
Now, from the foregoing it is clear that the right to retirement may be subject to limitations, just like any other fundamental right. This entails that no person holds a right to retire under specific conditions, since those conditions may be modified whenever necessary to guarantee the existence of a particular retirement and pension system (régimen de pensiones y jubilaciones); for if this were not so, conditions could be created that render the system financially unsustainable, which would ultimately result in the right to retirement being severely compromised, or its exercise being entirely impossible due to the absence of funds to pay the beneficiary the retirement amount owed. Given this outlook, the Court considers that the challenged provisions are not unconstitutional, insofar as their purpose is precisely to guarantee the continuity of the Retirement and Pension System (Régimen de Jubilaciones y Pensiones) of the Poder Judicial, for which purpose parameters and requirements were established based on the opinions of experts received by the Special Committee that reviewed legislative file number 19.922, as well as on technical studies that confirmed the existence of a problem that could jeopardize the sustainability of said System and for which a series of recommendations were issued.
In that regard, having confirmed that the modification of requirements set out in Article 224 and the time period established in Transitory Provision VI of the bill are ultimately aimed at guaranteeing the retirement right of judicial officers (servidores judiciales), the Court dismisses the alleged defect." (sentencia 2018-5758).
In light of the foregoing, and given the absence of any novel evidentiary elements submitted by the petitioners on these matters, the Court considers it established — first — that the financial unsustainability of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Poder Judicial was a real fact at the time that both the Corte Suprema de Justicia and the Asamblea Legislativa decided to initiate a reform process for the institution's retirement system, supported by a technical assessment that would serve as a technical input for addressing the financial problems threatening the Fund. Second, the Court reaffirms what was stated in sentencia 2018-5758 regarding the validity and constitutional pertinence of the changes made to the eligibility conditions, as well as to the determination of the benefits payable by the Fund, on the understanding that such adjustments fall within the constitutionally legitimate sphere of legislative action in retirement matters, as explained in that ruling. Third, the Court also reaffirms what was stated in sentencia 2018-5758 with respect to the existence of adequate technical support underpinning the text that ultimately became law, insofar as the final parameters established were indeed technically validated, as explained in detail in sentencia 2018-5758 as cited above.
XXVIII.Justice Araya García continues drafting. Notwithstanding the foregoing, the petitioners reiterate the alleged lack of constitutional reasonableness and proportionality in the decision taken, and specifically argue that the technical report offered legislators more favorable options for the economic interests of Fund participants — options that would have left the purpose of the legislation intact — but that, despite this, said option was not enacted into law, thereby violating the suitability requirement (condición de idoneidad) that forms part of the constitutional reasonableness standard. In this regard, the Court notes that the Poder Judicial formalized Convenio R-CONV-005-2016 with the Instituto de Investigaciones en Ciencias Económicas (IICE) of the Universidad de Costa Rica, in order for it to conduct an actuarial study (estudio actuarial) to determine the solvency of the Fondo de Jubilaciones y Pensiones del Poder Judicial.
As relevant here, that study produced clear and compelling evidence of the unsustainability of the current configuration of said Fund, and for that reason four proposals for new "regulatory frameworks" (marcos normativos) (IICE frameworks 1, 2, 3, and 4) were offered as a technical exercise to assess different possibilities for readjusting the variables affecting the operation of the pension system in question. Of these, as the technical study itself notes, frameworks 1 and 2 do not meet solvency and sustainability criteria and were included solely to illustrate how different variable values affected the final outcome. For that reason, and as the petitioners point out, the technical report recommended to the Asamblea two technically viable combinations: IICE framework 3 and IICE framework 4, for the modification of the system. However, the Court does not share the petitioners' conclusion that this implied an exclusive choice for the legislature between those two alternatives: first, because neither of them aspired to be "the best possible option" but were presented only 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 variables and benefits (as ultimately proved to be the case, as will be explained); and third, because the choice of either option (IICE 3 or IICE 4) or the construction of a different one necessarily required legislators to engage in a trade-off and balance among the various variables relating to contributions, eligibility conditions, and benefits to be received.
Thus, for example, on the same shared basis of general eligibility requirements (age 65 and 35 years of service); a method for calculating the reference salary (salario de referencia) based on the average of the last 10 years worked; a maximum retirement payment cap of 10 times the Poder Judicial base salary; and a solidarity contribution for those receiving high retirement pensions, IICE framework 3 proposed, for ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a lower worker contribution (contribución obrera) (contributions from active workers and retirees) of approximately 11%, whereas IICE framework 4 proposed a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution of approximately 15%. Faced with this situation, the option adopted by the Asamblea Legislativa is not arbitrary, as it consisted of constructing — with the technical elements provided — an intermediate proposal between the originally recommended IICE 3 and IICE 4 frameworks.
That is, on the same common base of requirements as those frameworks with respect to age and service conditions; the cap on the retirement amount; and the establishment of a solidarity contribution for retirements above that cap, the Asamblea defined — for ordinary old-age retirement — a retirement payment of 82% of the reference salary (nine and a half percentage points higher than the 72.5% proposed in IICE framework 3, but three percentage points lower than the 85% set in IICE framework 4). Likewise, the worker contribution percentage was fixed at 13% (that is, two percentage points more than the 11% under IICE framework 3, but two percentage points less than the 15% established in IICE framework 4). It should be noted that similar considerations may be made with respect to early retirement pensions and disability pensions. However — and this appears to be the focus of several of the petitioners' arguments — the Asamblea Legislativa changed the formula for calculating the reference salary, 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 IICE frameworks 3 and 4; according to the technical authority itself, this change implied a 4.8% decrease in the average salary that would serve as the basis for calculating the retirement payment.
Against that backdrop, it must then be determined whether such a set of actions by the Asamblea falls within the realm of the unreasonable by reason of being unsuitable, and the majority of the Court concludes that the alleged defect does not exist, since what occurred was precisely an intermediate choice between the two recommended frameworks — a choice with respect to which it has not been demonstrated that it entailed a substantial and relevant deterioration of the conditions of Fund participants compared to those offered under IICE frameworks 3 or 4. This is because, as explained, what occurred was an exchange of certain advantages for others, always within the limits set by the frameworks proposed by the technical body, and without there being any precise and reliable data in this case file to support the claim that — assessed across all conditions — there was a technical option available to the legislature that would have generated the same sustainability guarantees sought for the Fund while simultaneously offering clearly and compellingly higher levels of protection of the fundamental rights at stake.
To this must be added the fact that the very task of the legislature consists in weighing the different interests and needs at play and constructing — within the space afforded by the technical framework, but also on the basis of considerations of expediency and timeliness — the normative structure that, in its judgment, best serves the state objective pursued. That is its function as representatives of the people, and this Court must not substitute that competence nor the power to devise, with the technical elements provided, a solution to the real problem presented by the financial situation of the Fondo de Jubilaciones y Pensiones del Poder Judicial. Finally, it bears repeating that the normative proposal agreed upon by the Asamblea Legislativa received the endorsement of the technical body, which confirmed the technical soundness of the design ultimately adopted, as set out in informe IICE-186-2017, appearing at folios 2942 et seq. of the legislative file, as explained in sentencia 18-5758 of this Court, cited above.
As indicated in Considerando VI of this judgment, the Instituto de Investigaciones en Ciencias Económicas (IICE), in the aforementioned memorandum IICE-186-2017, describes the changes made as technically sound because they act in favor of the fund's solvency (solvencia). In particular, with respect to the bill approved by the majority, it notes that the changes to the calculation of the retirement pension (jubilación o pensión) amount, to the required age, to the special 50% solidarity contribution (contribución especial solidaria), to the employee contribution (aporte obrero) under a differentiated scale, and to the early retirement age with gender-based differences, all act in favor of the fund's actuarial solvency (solvencia actuarial). Whereas, in the case of the Minority Committee Report (Dictamen de Minoría) (folios 2945 et seq., same volume), which was in favor of:
Using a lower reference salary (salario de referencia), calculated as the average of the last 10 years adjusted by the Consumer Price Index (IPC). On this point, it is noted that this calculation method is less favorable to the fund's actuarial solvency, and that its effect must be analyzed together with other characteristics and parameters such as the ordinary or service-based retirement age, the employee contribution, the solidarity contribution (contribución solidaria), and the transitory provision.
85% of the reference salary with an employee contribution (cotización obrera) of 11%. In this regard, it is noted that an 11% employee contribution should be associated with a retirement pension not exceeding 72.5% of the reference salary calculated using the last 120 salaries adjusted by the CPI, in order to maintain actuarial solvency.
A retirement age of 62 years for men and 60 for women is proposed, and no minimum age for early or service-based retirement is established. In this regard, it is noted that, under this scenario, even with a contribution of 15% on salaries, retirement pensions, and pensions, the fund would be 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 Committee Report does not pass a rigorous actuarial solvency test." In particular, the following is noted:
"i. If the employee contribution remains at 11% and under the other conditions of the Minority Committee Report, then the actuarial deficit would exceed 3 trillion colones, and actuarial insolvency would exceed 30% of the promised benefits.
ii. If the employee contribution is increased to 15% and under the other conditions of the Minority Committee Report, then the actuarial deficit would exceed 1.7 trillion colones, while actuarial insolvency would exceed 17% of the promised benefits.
A solidarity contribution of 20% of the excess over the maximum cap defined for retirement pensions 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, IICE notes that by reducing the contribution to 20%, part of the equalizing effect of that contribution is lost.
Transitory Provision V. The Transitory Provision V proposed by the Minority Committee Report extends the benefits of the current law for an additional 10 years beyond the 18 months recognized as a vested right (derecho adquirido); although the benefit is set at 100% of the reference salary based on 120 salaries adjusted by the CPI, the transitory provision does not include a gradual phase-in, so its effect on solvency approximates that of the transitory provision in the Corte Plena's bill, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less graduality, it is less favorable compared to Transitory Provision IV of the Majority Committee Report (Dictamen de Mayoría) in terms of its impact on the fund's actuarial solvency.
Employer contribution. It is proposed that the employer contribution (aporte patronal) of the Poder Judicial (currently 14,36% of the salaries and wages of affiliated employees) "shall be adjusted proportionally in accordance with increases that the Administrative Board agrees upon as contributions from judicial employees and officials…." "The IICE team considers this clause entirely inadvisable." "The position is that the guarantee of solvency must not rest on the state contribution, thereby avoiding further deterioration of the country's already delicate fiscal situation." Credit operations: It was proposed to authorize the Administrative Board to use the Fund's revenues to carry out credit operations directly or through a financial institution. On this matter, the IICE team stated: "…the possible participation of the fund in credit operations must be analyzed with the utmost care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, all of which entail costs and risks that must be adequately assessed." After these observations and the legislative debate, amendments were made to the bill, in most cases to bring them into line with the criteria issued by IICE, and others to incorporate positions expressed during the legislative debate.
The petitioners (accionantes) claim that regressive measures cannot exist within economic, social, and cultural rights (derechos económicos sociales y culturales, DESC), within which pension systems would be included. However, as the Social Rights Committee of the Council of Europe and other Constitutional Courts such as that of Colombia have noted, it is possible to adopt regressive measures in the area of DESC when they pursue a legitimate and relevant aim — such as improving another right or the general level of coverage of services that guarantee their effectiveness — or when they serve to avoid more burdensome measures and are technically supported. Thus, the constitutional conformity of measures that reduce or modify pension conditions requires that, prior to their determination and as an indispensable part of their justification, there must be technical support for the effects of the measures, and those affected must have been heard, since these involve income currently being received as a means of subsistence and upon which a large part of their life plans and their right to a dignified old age are based.
In accordance with Inter-American doctrine and jurisprudence, in cases of regressiveness of DESC, it is necessary to verify the legitimacy of the purpose that the provision seeks to achieve; whether the restriction of rights is "suitable" or "appropriate"; successively, whether it is "necessary" or "indispensable"; and, finally, whether it is "proportionate" in the strict sense or "balanced." The purpose that the provision seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important aim. The provision in question "(…) cannot have just any purpose, but must be oriented toward protecting values that have an express constitutional basis, either because the Constitution considers them objective values of the legal order (…). This means that these measures must be not only admissible but must seek to achieve constitutionally important objectives." Likewise, it must be established whether the means provided in the provision to achieve the intended purpose are adequate to effectively reach that purpose or, in other words, "(…) the protective effect of the measure in relation to the interest or value sought to be favored must be clearly demonstrated." There must be no other means of achieving the intended purpose with the same efficacy that would be less burdensome in terms of the sacrifice of constitutional rights susceptible to limitation in each case or, in other words, "(…) that there is no other means that can lead to the purpose and that sacrifices to a lesser degree the constitutional principles affected by the use of such means." What is sought in this step is to verify that the reduction or deterioration in the legal patrimony of individuals — that is, the impairment of constitutional principles and rights — is not greater than the benefit that such impairment 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 caused to the legal patrimony of citizens is greater than the constitutional benefit that the provision is capable of achieving, then it is disproportionate (…)." The Inter-American Court has likewise held that on economic matters and, more specifically, on matters related to budgetary issues and the allocation of resources, the legislature has broad discretion in its regulatory choices; therefore, in such cases, any proportionality review conducted must be of low intensity, which is precisely the category of rights under analysis.
As is evidenced from the legislative record, the Poder Judicial's pension system had an actuarial deficit of more than 5,000 trillion colones at the time of the legislative debate, which endangered the patrimony of all affiliated contributors and retirees who make up the pension regime for Employees and Officials of the Poder Judicial, as well as public finances, since the State would have had to absorb that deficit through the budget at a precarious moment for public finances. In other words, not only was there a legitimate need to intervene, but there was also a legal obligation to protect the balance of the fund — upon which thousands of people and families depend — and to adequately safeguard public finances.
By way of example, Dr. Max Soto Jiménez of the Instituto de Investigación Económicos de la Universidad de Costa Rica (folio 1321) and part of his team, informed the Committee that among the findings, IICE found that the actuarial deficit is 9.7 times the amount of accumulated reserves and represents 36% of the present value of the entire liabilities of the regime, and that the substitute bill being discussed in the Committee is insufficient to guarantee the sustainability of the Poder Judicial's pension system. (See folio 1352, volume 7 of the legislative record.)
Likewise (folios 2274 and 2275, volume 10), the intervention of Dr. José Antonio Cordero Peña of IICE is on record, in the same vein regarding the severity of the fund's situation and the need to take action:
"It is really evident that the fund at this moment is insolvent…If things continue as they are right now, what is going to happen is that the people who retire in the coming years will consume the fund's resources belonging to future generations; and notice how curious — since we are all living such long lives now, they will also consume the funds that were meant to finance their own retirement when they are ninety, ninety-five years old; at some point, someone will have to come and tell them: look, you know what, your pension is no longer going to be feasible — similar to what happened to some members of private pension funds in Chile." That situation was recognized not only by the actuarial report of the Universidad de Costa Rica, but years earlier by the aforementioned Melinsky report, and by the Poder Judicial's own authorities during their appearances, as well as by the Poder Judicial's own professional associations (gremios) that participated during the legislative process and were also part of the technical teams of the Poder Judicial that participated in the preparation of the 6 products of IICE and endorsed the study recommendations, which are now being challenged in this action.
Indeed, as indicated in Considerando VI of this judgment, Agreement R-CONV-005-2016 entered into between the Poder Judicial and the Universidad de Costa Rica shows that the Poder Judicial's professional associations or unions would have a representative on the Executive Team (folios 689 and 1154). In an appearance before the Committee, Licenciado Hernández Solano stated:
"For the first time in an actuarial study (estudio actuarial), workers were given representation — in this instance with the UCR study, for the very first time.
There is a technical committee within the Judiciary and a technical committee within the UCR; they are the ones who analyze all parts of the five phases covered by the UCR–Judiciary agreement. The Executive Committee within the Judiciary is the one that endorses each phase, puts it to the test, consults with the Technical Committee, and ultimately we grant approval." (emphasis not in the original) "On the institution's side, there is an executive team… The Head of the Unions' Financial-Accounting Department forms part of this technical team. Why did the institution make that decision? Well, because experience had shown us that in prior processes, the unions' challenges to the study would only arise at the end of the process, and we would find ourselves in an internal conflict that was not healthy. For this reason, we considered it important to incorporate the union representative as part of this executive team; that person participates actively and reviews the work products, just as the rest of the assembled team does." (folio 1325 tomo 6 del expediente legislativo) There, the conditions for each work product were agreed upon, and the agreement was communicated to the Special Legislative Committee responsible for reviewing 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 expediente legislativo) "Observations were made throughout the process — and I also want to mention that the Judicial Audit Office participated in this review process as well.
There were observations from don Arnoldo, who was at the time the union representative, and from the Audit Office; these were forwarded to the IICE, which would provide a response. In some cases they corrected the work products, because this process takes place as a preliminary version for discussion or review, and then, once satisfied with the correction, approval and sign-off were granted." (folio 2335 tomo 10 expediente legislativo) (emphasis not in the original) At folio 843 of the legislative record, the prior actuarial study by Melinsky, Pellegrinelli y Asociados S.A. is submitted; at folio 939, among its recommendations, it notes that the year 2026 is projected as a critical year (año crítico) with a significant actuarial deficit (déficit actuarial) amounting to 50% of the constitutive capitals (capitales constitutivos) for benefits in payment (beneficios en curso). It states that "substantive and effective measures are required to reduce the actuarial deficit and substantially delay the critical year." It further adds that, in order to adopt adjustment measures, it must be borne in mind that this is an ongoing pension scheme (régimen previsional) in which the following concepts must be reconciled:
Benefits in payment Length of service rendered by active employees Actuarial (required mathematical reserves (reservas matemáticas requeridas), operating deficit (déficit operativo), actuarial deficit, critical year, required equilibrium mean premium (prima media requerida de equilibrio)) Legal Contributory capacity of members Budgetary capacity of the Judiciary Budgetary capacity of the Executive Branch It further adds: "any legal analysis must bear in mind that the adjustments indicated are necessary in order to improve the actuarial deficit situation and critical year, which constitute an Institutional Risk that endangers the assets of all the active and retired members (afiliados colectivos y pasivos) comprising the pension scheme of the Employees and Officials of the Judiciary." (emphasis not in the original) "That is to say, the basic legal element to be considered is that the individual rights recognized under current law must be regarded as contingent rights (derechos en expectativa) subject to the collective right with respect to the feasibility of benefits for the mass of members, not only as regards their impact within the Judiciary, but also for their potential effect on the National Budget." In the appearance of the Executive Director of the Judiciary (tomo 1322 et seq., tomo 6 of the legislative record), she notes that since the last actuarial study by Melinsky, the actuarial deficit had grown from 2.48 trillion "to a scenario hovering around 5,000 trillion." In response to a question from Representative Piszk Feinzilber — "Would I be right to understand that the situation is worse than we had imagined?" — the Executive Director replied: "Yes. Four years have passed since 2012, and no decisions have been taken; the situation has worsened." (folios 1338 and 1339, tomo 6 of the legislative record) Representative Piszk Feinzilber then adds:
"What I want is for it to be made very clear here that our concern is not based on a whim" … "but rather on the fact that it is absolutely clear that unless decisions are made, the situation will continue to worsen." "I know — and we had even committed to waiting for a complete actuarial study before making decisions of a — I'm not sure if numerical is the right word — but regarding contributions. In any case, I think it is absolutely clear that there is concern on our part, that the Supreme Court must be aware of that, that here, well, it is all Costa Ricans who will have to pay if this situation keeps dragging on. From that standpoint, we, as legislators who must make a decision…" (folio 1343, same tomo) In the same vein, Representative Guerrero stated: "To reiterate what Álvaro Ramos said. This is not a matter against, but rather in favor of the working class. That substitute text improves things, but does not sustain the soundness of the scheme.
A scheme that will end up in the National Budget of the Republic if soundness is desired — a scheme that, moreover, does not guarantee the pension expectations of people who are currently contributing, or who will have to contribute double; the same applies to the employer and to the State. That is to say, it goes to the central budget…" (folio 1754, tomo 8, expediente legislativo) Moreover, as noted above, the majority of this Chamber considers that, given the demonstrated public necessity and the legitimacy of the authorities' intervention, the means provided in the challenged regulations to achieve the pursued objective are adequate to effectively attain that objective. As noted above, the Instituto de Investigaciones en Ciencias Económicas (Institute of Research in Economic Sciences) (IICE), in the referenced document IICE-186-2017, characterizes the changes made as technically suitable because they act in favor of the solvency of the fund.
As explained, the legislature adopted an intermediate choice between the two recommended frameworks — a choice regarding which it has not been demonstrated that it entailed a substantial and material deterioration in the conditions of the fund's participants compared to those offered under the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of certain advantages for others, always within the limits established by the frameworks proposed by the technical body, and without there being in this record any other technical studies or expert opinions of an equivalent or comparable level that, with precise and reliable data, would allow one to affirm that — upon assessing all conditions and not only those selected — there existed a technical option available to the legislature that would have generated the same sustainability guarantees sought for the fund while simultaneously offering clearly and decisively greater levels of protection of the fundamental rights at stake.
Precisely, the legislature's function consists of weighing the different interests and needs at play and constructing — within the space offered by the technical framework, but also on the basis of considerations of expediency and timeliness — the normative structure that, in its judgment, is the one that best serves the state objective being pursued. That is its role as representatives of the people, and this Chamber must not substitute that competence or the authority to devise, using the technical elements provided, a solution to the real problem presented by the financial situation of the Retirement and Pension Fund of the Judiciary (Fondo de Jubilaciones y Pensiones del Poder Judicial). As the Inter-American Court has rightly noted, in economic, budgetary, or resource-appropriation matters, the legislature enjoys broad freedom of configuration (libertad de configuración); for this reason, any proportionality review conducted in such cases must be of low intensity, which is precisely the category of rights under analysis — where a balance between individual and collective rights must be sought in order to overcome the risk that existed of harming the assets of all the collective members (afiliados colectivos) comprising the pension scheme of the Employees and Officials of the Judiciary, jeopardizing the sustainability of current and future beneficiaries and, potentially, of state finances, given that the State would have had to absorb the present and future retirees and pensioners if the scheme could not be brought into equilibrium.
The petitioners provide a series of examples of hypothetical harms regarding the allegedly disproportionate nature of the measures for various sectors, but they do not provide an actuarial study that would allow the one in the legislative record to be refuted — a study that does take into account all the relevant variables (not only those selected), which must be assessed comprehensively. Likewise, through the actions filed they seek to revert to the pre-reform scenario, one that was expressly and technically rejected by the IICE in its various studies and that has the capacity to affect or endanger the sustainability of the Judiciary's pension scheme, as was demonstrated through the studies by Melinsky and the Universidad de Costa Rica. Furthermore, the evidence for better resolution (prueba para mejor resolver) requested by this Chamber from the Board of Administrators of the Judiciary Pension Fund (Junta Administradora del Fondo de Pensiones del Poder Judicial) (see judicial record) demonstrates that the measures adopted by the legislature have been suitable for restoring solvency to the Fund, which has experienced a substantial recovery during the years in which the challenged regulations have been in force.
In conclusion, in the judgment of the majority of this Chamber, the Asamblea Legislativa did not infringe upon the constitutional principles of reasonableness (razonabilidad) and proportionality (proporcionalidad) by drawing elements from the IICE3 and IICE4 normative frameworks and from the appearances of the authorities of SUPEN and the Ministry of Finance, and constructing from them a normative framework to balance all the needs at play and fulfill the objective of remedying the recognized problems affecting the Retirement and Pension Fund of the Judiciary, thereby avoiding greater harm to the interests of union members and the public interest; accordingly, the action must be dismissed on this point. Moreover, at the time of issuance of the present judgment, it has been verified that the actuarial deficit of the scheme has been significantly reduced, demonstrating that the measures adopted were necessary, proportionate, and suitable.
XXIX.Drafted by Justice Hernández López. On the principles of equality and unity of social security and the provisions of Chapter I "Benefits (Prestaciones)" of Ley 9544. The petitioners allege a violation of the principle of equality (principio de igualdad) and of the principle of unity of social security (principio de unidad de la seguridad social) with respect to the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social, and they contend that, although part of the intention behind the reform introduced by Ley 9544 was to bring the Judiciary Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial) into alignment with—or at least as close as possible to—that regime, what was actually done was to distance judicial employees (servidores judiciales) considerably from the system of the Caja Costarricense de Seguro Social and from any other social security regime existing in the country. They note that, as a result of the reform introduced by Ley 9544, Poder Judicial workers end up contributing additional amounts under at least 3 items that workers affiliated with the Disability, Old Age, and Death Regime of the Caja Costarricense del Seguro Social do not pay. These items consist of payments by Poder Judicial retirees of:
The interested parties argue that the sum of the three foregoing items would mean that when deducted from the 82% of the gross retirement benefit amount, the benefit would ultimately amount to a real figure of 66.83%; whereas, in the case of workers affiliated with the Disability, Old Age, and Death Regime of the CCSS, they contend that although the basic pension amount (cuantía básica) ranges between 43% and 52.5% as the gross pension amount, that regime also provides 2 additional incentives added to that basic amount: a) 0.0833% for each month of contributions beyond monthly contribution number 240, and b) the deferral benefit, which is 2.9326% in the case of a woman and 2.7993% in the case of a man. As matters stand, 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 under those same conditions, it would fall between 60.7933% and 70.2933%, and they assert that when these percentages are compared with the basic pension amount for judicial employees of 66.83%, it is evident that persons affiliated with the Disability, Old Age, and Death Regime would be in a better position.
For this reason, they consider it more than clear that, given these figures, far from having brought the two regimes into alignment, what was actually done was to place affiliates of the Poder Judicial Regime at a disadvantage relative to those belonging to the CCSS regime, thereby, in their view, infringing the right to equality and the principle of unity of social security.
XXX.Justice Hernández López continues drafting. The intervening parties stated the following: The Corte Suprema de Justicia indicated in general terms that an earnest request had been made to the legislature to take special care with the reductions being imposed so that they would not prove confiscatory, without losing sight of the fact that an ordinary retirement benefit (jubilación ordinaria) set at 85%—the percentage indicated in the text referred to the Corte at that time—bearing the statutory charges of 15% contribution to the Fund—the percentage contained in the text referred to at that time—, 5% to the CCSS Regime, and 15% on account of income tax (renta), was already suffering a reduction of 50%—according to those calculations—relative to what the retired person had received while actively employed, without also taking into account that the calculation was not made at that time on the basis of the current salary but rather on a prorated average (prorrata) of the last 20 years of service.
The Procuraduría General de la República did not submit a specific report on this particular point, but its representative stated in general terms that, pursuant to Article 73 of the Constitución Política, the administration and governance of social insurance corresponds to the Caja Costarricense de Seguro Social, which implies, in principle, that it would be for that institution—independently of statute and even with precedence over it—to establish the conditions that should prevail in the various social security regimes, that being the situation governing 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 Caja Costarricense de Seguro Social. It contends that, notwithstanding the foregoing, in Costa Rica various special pension regimes (regímenes especiales de pensiones) substituting for the general regime have been created by legislation, and their existence has been repeatedly upheld by the Sala Constitucional, as illustrated by ruling number 846-92 of 13 hours 30 minutes of March 27, 1992, which held that the existence of special retirement or pension regimes is not contrary to the Constitution, provided that the State's contribution as such is equal across all regimes, including those of private enterprise, and that the State's contribution as employer in the various regimes is neither greater than that imposed on other employers, including private employers, nor, in any event, less than that of all employees or workers.
The representative further noted that the Procuraduría General de la República has stated that the Asamblea Legislativa has not only the authority but also the duty to adopt the measures necessary to guarantee the sustainability of the various special pension regimes substituting for the general regime, through the enactment of whatever laws are required to achieve that objective, and that along those lines the Procuraduría has maintained that the administration of any social security regime requires flexibility to properly direct the limited resources available to it, and that such flexibility is compromised when the legislature—or whoever has the authority to make changes to the governing rules—is prevented from modifying both the initial conditions and ongoing benefits. It argues that, on the basis of the foregoing, it is not possible to accept that the rules establishing the conditions of a given regime should be frozen in place, since this could lead even to the collapse of a country's social security system, which would harm not only those who have already attained pensioner status but also those with justified expectations of obtaining, in the future (when one of the covered contingencies (contingencias protegidas) arises), economic benefits from social security.
For her part, the President of the Asamblea Legislativa stated that the regimes in question are distinct, which is legally permissible, and that what matters is that within each regime there are clear rules conforming to acceptable constitutional and legal parameters; to that extent, there would be no violation of the principle of unity of social security, which cannot be equated with homogenization of the regimes.
XXXI.Justice Hernández López continues drafting. This Court recalls that the content of the principle of equality established in Article 33 of the Constitución Política means that distinctions between two or more persons who are in the same legal situation or under identical conditions are prohibited, and that equal treatment cannot be demanded when conditions or circumstances are unequal; as a general rule, equal treatment is accorded to equal situations, and different treatment is permitted for different situations and personal categories. It has also been held that the requirement of equality does not delegitimize differential treatment, but in order to determine whether a distinction is truly justified, one must analyze whether the reason underlying it is reasonable—that is, whether, considering the particular circumstances of the case, different treatment is warranted (see in this regard ruling No. 5061-94 of 17 hours 34 minutes of September 6, 1994).
It follows that not every case calls for identical treatment regardless of any legally relevant differentiating factors that may exist; put differently, not every inequality necessarily constitutes discrimination. Equality is only infringed when an inequality lacks 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 objective itself. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality (see ruling No. 1770-94 of 9 hours 18 minutes of April 15, 1994).
Based on the foregoing, and in this Court's view, the petitioners are not correct with respect to this first claim—first, because there is no evidentiary basis for concluding that the legislature's intent was to align the Retirement and Pension System (Régimen de Jubilaciones y Pensiones) of the Poder Judicial with the Disability, Old Age, and Death (Invalidez, Vejez y Muerte) system of the CCSS, which is entirely different in nature, number of contributors (cotizantes), employer contributions (aportes patronales), employee-beneficiaries, and other respects; and second, because—even if that were the case—the legislature's ultimate outcome clearly reflects its intent that there be an exclusive system for Poder Judicial workers, which is consistent with the inclination evident among the claimants to keep their system in force and protect it, as well as with the disposition of the senior authorities of the Poder Judicial and the IICE's own technical studies to promote the necessary conditions for the Poder Judicial's Retirement and Pension System to continue functioning robustly and remain solvent.
That said, this Court is clear that the decision to maintain a special, independent retirement system—distinct from the basic system—carries an associated cost and gives rise to consequences that must be borne by its members (afiliados), which, by the mere fact of being different, do not necessarily imply discrimination, a violation of the principle of equality, or a violation of the principle of the unity of social security. From this perspective, the establishment of different contribution amounts and burdens for the systems, obligations or lack thereof to continue contributing after the right to retirement has been acquired, and varying conditions for a person to be granted that right, is the result of the need to take into account the particularities and plurality of factors related to working conditions and the composition of the pool of participants in the fund (or the disparity in employer contributions), as well as the benefits sought upon retirement, or alternatively, in response to the social and economic policies that may be operative at any given time.
On this point, the Court considers that, if the primary purpose of the framers of the Constitution was to maintain social insurance schemes (seguros sociales) to strengthen social security, there is no reason to question the existence of a plurality of systems, provided that, as the Procuraduría indicated, equality criteria are met with respect to state contributions. Accordingly, it is constitutionally acceptable for a difference to exist between the pension system of the Caja Costarricense del Seguro Social and that of the Poder Judicial, since their enactment responds to different needs and conditions that make a simple comparison—in terms of reductions, employee contributions (aportes obreros), and benefit profiles—inappropriate without also weighing the differences in the number of contributors, caps, coverage of vested rights (derechos adquiridos), and other conditions that distinguish them.
It is also worth adding that it is public knowledge and well known, having been publicly reported by the very authorities of that institution, that the Caja Costarricense del Seguro Social's pension system faces significant threats to its financial stability and that, in response, changes to the eligibility requirements and benefit profile are being considered, which means that from this standpoint as well, the comparison proposed by the claimants loses weight and relevance as a basis for a declaration of unconstitutionality on grounds of inequality, as they request. Under these circumstances, the Court does not consider that Ley 9544 has violated the principles of equality and unity of social security in the terms set forth in these unconstitutionality actions. Accordingly, the claim must be dismissed.
XXXII.Opinion authored by Magistrate Araya García. Regarding the impairment of the fundamental right to retirement arising from changes to the eligibility conditions in Capítulo I "Prestaciones" of Ley 9544 for Poder Judicial employees to be able to retire. On this point, the claimants argue that the fundamental right to retirement is being rendered nugatory by the increase in the retirement age, particularly by now requiring a minimum of 20 years of service in the Poder Judicial in order to retire under the Poder Judicial system, since in many cases judicial employees (servidores judiciales) would be required to work beyond age 65 in order to become entitled to a retirement pension. They further explain that, with the reform, it is not merely that the required service time in the Poder Judicial has been extended by 5 years—from 30 to 35 years—but that particular situations are being created that they consider harmful to fundamental rights: a) for example, a person who began working at the Poder Judicial at age 20, in order to retire in accordance with the requirements established in Ley 9544, will now have to work 45 years, far exceeding the 30 years of contributions indicated in OIT Conventions 102 and 128; b) by now requiring at least 20 years of service in the Poder Judicial and additionally 35 total years of working in the public sector, it follows that any person who begins working at the Poder Judicial after age 46 could only receive a pension after surpassing age 65; c) in the case of a Poder Judicial employee who dies before completing the minimum 20 years of service at that institution, the beneficiaries would not be able to claim an orphan's or survivor's pension (pensión por orfandad o supervivencia) because that requirement is not met; d) the same new retirement rules cannot be imposed equally on a person who is 5 or 10 years away from retirement as on a person who is just beginning to work or who is 30 years away from retirement at the moment a reform takes effect; e) the law prior to Ley 9544 established that upon completing 30 years of service—which implies an amount greater than the 300 contribution payments (cuotas) required by the IVM system of the Caja Costarricense de Seguro Social—the person could apply for early retirement (jubilación anticipada) regardless of age, meaning they had been working and planning their life for the near future; but now, with such a drastic change to the retirement system, that same person must complete 5 more years of service and also reach age 65 to obtain a full pension—now significantly reduced—since early retirement no longer appears to be a viable option because it considerably reduces income; e) in the case of a Policía Judicial officer, a Criminal Court Judge, a Prosecutor (Fiscal), a Pathologist, or a Social Worker—to give just a few examples—who previously could retire upon reaching age 55 after 30 years of service, they will now be required to work ten more years to reach age 65, despite the fact that in their daily work they face an enormous emotional burden, which could affect—in an extremely negative way—the new outlook to which they are being abruptly subjected due to having to work 10 more years.
The claimants argue that all of these changes, and others arising from the application of Ley 9544, were made without the benefit of technical-scientific studies—not of an accounting nature like the IICE products—but rather of a demographic and sociological nature that would make it possible to determine, with certainty, whether Judges handling all types of matters before the Poder Judicial, as well as Policía Judicial officers, administrative personnel, Fiscales, Defensores Públicos, and others, can continue working—given that the reform extends the required years of service for retirement—without impairing public service, but above all without causing harm to their physical and mental health. They emphasize that many of these judicial employees, being very close to obtaining their retirement, had already made a retirement plan for which they had been preparing for several years and now, with the reform, must modify it, with those claimants considering that this harms the expectation of completing a judicial career.
They add that, beyond the foregoing, for cases of persons who will have to work beyond age 65 in order to obtain the right to retirement, there is a failure to comply with what is set forth in the Conventions of the International Labour Organization (Organización Internacional del Trabajo), which state that the retirement age cannot exceed 65 years, as provided by OIT Convention No. 102 in its Article 26, paragraph 2, as well as OIT Convention 128 in its Article 15, which, insofar as relevant, provides:
"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 sixty-five or above, that age shall be reduced, under the prescribed conditions, for persons who have been employed in occupations deemed by national legislation to be arduous or unhealthy for the purposes of the old-age benefit."
XXXIII.Opinion authored by Magistrate Araya García. On this topic, there is no specific opinion issued by the Procuraduría, which, in its report, reiterates the authority of the legislature to make the necessary adjustments to ensure that pension funds (fondos previsionales) are sustainable and can thereby provide the promised benefits to all participants. The same is true of the Asamblea Legislativa, which considers that the decision made was grounded in the technical studies submitted. The Corte Suprema explained that, on this matter, it refers to what was stated to the Asamblea Legislativa within the legislative record (expediente legislativo), to the effect that all these changes represent a disincentive to the entry of talented professionals into the Poder Judicial who, having regard to the economic outcome of a future assessment, would prefer to pursue their professional career in another field, given the impact on the judicial career, the prosecutorial career, the career of Defensores Públicos, and the career of staff in general.
In addition, it stated that the renewal of staff who manage to remain in the Poder Judicial will be affected, so that there will be elderly officials who continue working solely out of necessity and due to the reduction their income would suffer if they were to retire; the judicial workforce will face a crossroads because they have the desire to opt for retirement and the motivation to withdraw and rest, but are placed in a condition where they must consider their economic situation. It further argued that all of this reduces the Poder Judicial's competitiveness in the labor market and that this will affect the quality of the Administration of Justice. It also considered that the regulation of the Fondo de Jubilaciones y Pensiones del Poder Judicial must not be assessed solely from an economic perspective, since what is at stake are fundamental, non-waivable rights associated with a worker who, throughout their years of service, has contributed to a system with the expectation of receiving a dignified pension that would allow them to meet their needs and enjoy quality of life in their retirement years; but now, the obligations imposed by the new law will affect vulnerable population groups, even though they constitute a group that requires greater protection from the State.
XXXIV.Drafted by Justice Araya García. It is alleged that the reform has imposed on current and future participants in the fund a set of eligibility conditions that severely obstruct their ability to enjoy an adequate retirement when they cease working as judges, police officers, prosecutors, public defenders, and judicial workers in general. In this regard, the Court notes that the arguments concerning the infringement of the right to an appropriate and fair retirement are constructed by drawing a comparison between the prior system (which the petitioners appear to endorse) and the system introduced by ley 9544. It is therefore appropriate to recall the changes that the regime underwent — in terms of eligibility — as a result of the regulatory change, beginning with ordinary retirement, for which the age was increased by 3 years and the years of service were increased by 5 years; the number of those years that must have been worked for the Judicial Branch was also modified, going from "the last 5 years" (repealed article 231) to a minimum of 20 years worked within the Judicial Branch.
With respect to early retirement, the changes may be summarized as follows: early retirement with proportional payment upon completion of years of service was modified, increasing 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 upon attainment of a certain age was modified, going from 60 years with at least 10 years of service (repealed article 225) to 65 years, with a requirement of at least 20 years of service within the Judicial Branch under the currently applicable text. In addition, the retirement benefit amount was adjusted downward, going from 100 percent of the average of the last 24 salaries to 82 percent of the average of the last 240 salaries.
Regarding these changes, the petitioners set forth a series of examples of situations they consider unjust and contrary to international standards; however, the examples presented are not sufficient to justify the annulment of the norm as requested, because no real and current data broken down by age profile at the time of entry into the Judicial Branch have been provided — data that would be needed, for instance, to verify how participants in the fund have actually used the early retirement mechanism, or whether the case of a person who joins the service of the Judicial Branch at age 46 occurs with sufficient frequency to conclude that the system, taken as a whole, becomes manifestly unjust in requiring more years of service specifically within the Judicial Branch. Likewise, with respect to years of service, no technical data capable of rebutting the actuarial report have been provided that would demonstrate that a large number of individuals would have to remain employed well beyond age 65 in order to complete the 20 years of effective service within the Judicial Branch.
Nor is it valid to compare the supposed expectations of attaining early retirement under the prior law with the conditions for acquiring ordinary retirement under the new regime, since such a comparison is incongruous given that these are qualitatively different situations. One must not lose sight of the fact that the logic currently underpinning pension regimes such as the one under review aims to achieve — over time — sufficient economic conditions to provide protection to participants when their capacity to work is affected by the effects of old age or another contingency; and that is why State authorities must establish parameters that ensure adequate utilization of labor and productive potential and that secure dignified conditions for when that potential declines due to age. Accordingly, the Court considers that the central issue here is that the modifications to eligibility across the various modalities reflect a necessary balance between the particular conditions of the work carried out within the Judicial Branch and the need for the pension system — designed to protect its workers upon reaching old age — to be financially sustainable as a whole, over time.
As stated, the Court shares the view that the creation of a separate retirement regime for the Judicial Branch has been a key element in the significant role this body has played within the social and democratic State governed by the rule of law in our country; however, this cannot serve to entrench a situation that, as has been established, 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 substantial portion of the funds used to build the regime. Thus, faced with the economic emergency that necessitated a modification, the changes made represented — for the majority of participants who have pursued a judicial career and aspire to ordinary retirement — a delay of 3 years relative to the requirements of the prior 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 every possible particular circumstance that may arise in specific cases; but as noted, in the general run of cases the modifications of 3 and 5 years, respectively, are supported by technical studies and do not constitute a severe aggravation of eligibility conditions for the majority of individuals. It is evident that the general hypothesis advanced by the petitioners — that judicial workers in general, and simply by virtue of working in that institution, are subject to a burden and degree of wear and tear clearly distinguishable from those of other groups of workers — is not supported by evidence included in the file, nor has it been demonstrated that the examples offered occur with sufficient frequency to affect the overall fairness of the system to a degree that could be said to have infringed the fundamental rights of the majority of its participants.
This is not to say that there are no groups within the broader workforce that do require special measures given the nature of their work, but this would require specific technical studies for each group and a determination of their actuarial impact on the system. The variables contained in the actuarial study that served as the basis for the challenged reform are, moreover, part of a comprehensive study that assesses the long-term effects of the analyzed variables over a period of 100 years. Specific examples, lacking projection or comprehensiveness, are in the Court's view insufficient to rebut technical evidence of this magnitude. To refute this evidence, an equivalent actuarial report would be required.
Let us add to this that the original design modified by ley 9544 dates from 1993 — that is, from a date prior to the substantive paradigm shift brought about by the enactment of the Ley de Protección al Trabajador number 7983 of February 16, 2000. This latter statute reconceived the general pension design of the Costa Rican State for the protection of workers in their old age and established a three-pillar system: the first pillar being the basic pension regime (in this case, the Judicial Branch Retirement and Pensions Regime) financed on a tripartite basis among the worker, the employer, and the State; a second pillar consisting of an individual-account supplementary pension regime financed by the worker and the employer; and finally a third pillar made up of the worker's long-term savings plans. In this way, that complementarity relieved basic regimes of the task of delivering, on their own, broad and comprehensive benefits, since the needs of retirees would be met with resources from all three sources.
For this reason, and in the face of the need to review the characteristics of the basic regime applicable in the Judicial Branch in order to achieve its sustainability, the effort to adapt it to the new system makes sense, so that the final sum of all the pillars can achieve sufficient economic benefits to secure a decent basic retirement that — depending on the individual's own efforts — may be supplemented to bring it closer to the standard of living enjoyed during one's active working life. Accordingly, any possible finding, in one case or in a small group of specific cases, of some gap or seemingly unjust solution arising from the internal operation of this basic regime, cannot — by itself — become grounds for dismantling the entire structure without simultaneously establishing — which the petitioners have not done — that the overall social security system, taken as a whole, is incapable of providing a solution that appropriately addresses the rights of those affected.
In conclusion, the appropriate course is to dismiss the claim as unfounded, since it has not been technically demonstrated that the changes to the eligibility conditions have disproportionately affected the right of participants in the Judicial Branch Retirement and Pensions Fund to obtain a retirement benefit that, together with the other components of the pension system, contributes to the realization of their right to a dignified old age. In fact, had the reform not been carried out, the rights of all beneficiaries of the Regime would have been affected in a manner far more burdensome for them and for public finances. Likewise, returning to the conditions of the prior law — which would be the consequence of annulling the challenged provisions — would mean returning to the unsustainability of the regime. Nor has it been demonstrated in the file that the conditions of the regime of the Caja Costarricense de Seguro Social — which has been publicly reported to have its own financial sustainability problems — constitute a technically better alternative than the one adopted by the legislature, since, in this regard as well, no technical studies are provided in support of that thesis.
XXXV.Drafted by Justice Hernández López. On the infringement of the principle of judicial independence through the changes to retirement conditions for judicial workers. A group of petitioners has raised, as part of their claims, the existence of an infringement of the principle of judicial independence resulting from the enactment of challenged Law number 9544. One aspect of their arguments involves the alleged violation of Constitutional article 167 and, more broadly, of the independence that the Political Constitution attributes to the Judicial Branch as an institution. Those claims were examined in detail when reviewing the procedural claims and, in particular, the alleged infringement of the aforementioned article 167 of the Fundamental Charter. However, it remains necessary to rule on the arguments concerning the impairment of the guarantee of independence in the specific work of adjudication that the State must ensure, in accordance not only with our Fundamental Charter but also with the provisions contained in various international human rights instruments ratified and in force in our country.
The issue has been framed by the petitioners as an indirect impairment of the independence that adjudicators must enjoy in their work of resolving disputes guided solely by the law, on the basis that the changes made to their retirement regime affect their working conditions and render them more susceptible to undue pressure.
XXXVI.The opinion continues, drafted by Justice Hernández López. The Court begins by acknowledging that two dimensions have indeed been defined for the concept of judicial independence (independencia judicial): the institutional dimension (relating to the Judicial Branch) and the individual dimension (also called the personal or subjective dimension), which seeks to make visible and monitor the subjective dimension relating to the figure of the judge (this term being understood in a general sense as equivalent to adjudicator) and in relation to all the factors surrounding that figure, which in turn make it possible to guarantee the full and effective observance of the principle. Along this line of reasoning, judicial independence refers primarily to the function of the judge as a public servant charged with carrying out the task of protecting and giving effect to objective law, without subordination or submission to anything other than statute and law, free from the orders or instructions of third parties, whether private individuals, public bodies, or other jurisdictional bodies.
Moreover, the principle encompasses the conditions surrounding this work, such as being subject to a professional pay scale (escalafón profesional) or to a disciplinary and sanctioning regime (régimen disciplinario y sancionatorio); personal and economic aspects must also be included. The Court has endorsed this approach, as demonstrated in ruling 2018-5758, which answered the legislative consultation on the very text that became the contested ley 9544. That ruling stated:
"What is part of judicial independence is that judges have adequate economic sufficiency, while active and while retired, regardless of whether the pension scheme is specific to judges or not. Indeed, not all countries have particular schemes for judges, but the most consolidated democracies do take care to safeguard the judiciary as a key element of the stability of the rule of law (estado de derecho). Countries that have opted for the force of law rather than the force of arms for their stability depend on the quality of their judges for the quality of their democracy, since judges are the strategic guardians of the rule of law. In the case of our country, as the Estado de la Nación has rightly noted, the Poder Judicial has the distinguishing feature of being a conglomerate of institutions highly relevant to the rule of law (the Fiscalía, the Policía Judicial, the Defensa Pública, and the Judiciary) and it was its strength that in large part enabled the development and consolidation of democracy in our country during the twentieth century. The first Estado de la Justicia report recorded this when it stated:
'The Poder Judicial 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 correct for the legislature to provide guarantees and incentives to Costa Rican justice administration, because only in that way could the rule of law that emerged from the Segunda República be materialized — a rule of law that would depend for its success on a robust regime of legality and not — as was said — on the force of arms, the path chosen by the majority of countries in the world, especially those in Latin America." Furthermore, this jurisprudential position clearly coincides with the principal international human rights sources, as exemplified by 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 law shall guarantee the tenure of judges for such period as may be established, their independence, and their security, as well as adequate remuneration, pensions, and conditions of service and retirement." It is thus established that matters relating to pensions and retirement benefits could come to affect the stability of the judiciary, and it is therefore constitutionally appropriate for this Court to review the actions of the legislature from this perspective. On this point, what was set out in ruling 2018-5758 must once again be reiterated:
"(…) What is clear is that the creation of the Poder Judicial pension scheme (régimen de pensiones) was key to the stability of the administrative and judicial career of its employees and officials, and came to be a fundamental complement to the judicial career (carrera judicial), as a guarantee of judicial independence. Together with the judicial career, it provided stability to judges and other employees and officials both while active and while retired, making the judicial career attractive to many jurists and thereby favoring the stability and specialization of many officials across 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 in Article 167 when it speaks of 'structure and functioning'), which is constitutionally grounded in other factors, such as the existence of a career that guarantees objectivity in the selection of judges based on criteria of suitability and stability, and the economic and political independence of the body, among others; but the legislature could well have opted for a single scheme for all public employees or workers in general, without it being possible to argue that this diminishes the independence of the body." And it added:
"Nevertheless, it cannot be said — from the perspective of the majority of the Court — that the Poder Judicial pension scheme forms 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, care must be taken to ensure that it remains as stable and dignified as possible." (emphasis not in the original)
XXXVII.The opinion continues, drafted by Justice Hernández López. Based on what has been set forth, the question that arises is whether, as the petitioners maintain, the changes and reforms introduced in the Retirement and Pension Scheme (régimen de Jubilaciones y Pensiones) of the Poder Judicial reach the point of jeopardizing the dignity and conditions of service of Costa Rican administrators of justice, so as to say that independence in the exercise of their duty to dispense justice is unquestionably affected. The Court's answer to that question is in the negative, on the understanding that — as is argued throughout this decision — the changes that were made were necessary precisely to ensure the sustainability of the special retirement and pension scheme for judicial employees, whose collapse would in fact have constituted a serious threat to the economic stability of the administrators of justice.
Equally important in rejecting the claim is the fact that the legislative modifications are not the product of the legislators' unfounded whims, but were adopted on the basis of technical criteria, with broad participation by the interested parties, and were neither untimely nor capricious, being grounded in technical criteria. In this regard, the Court considers that the new pension scheme (régimen previsional), as the first pillar of the broader social security (seguridad social) framework that covers administrators of justice in a manner similar to other workers, ensures them a measure of economic security. For all of these reasons, the appropriate course of action is to dismiss the action on this point as well.
C. CLAIMS RELATING TO CHAPTER III ENTITLED "THE FUND" OF TITLE IX "RETIREMENT AND PENSION SCHEME OF THE PODER JUDICIAL" OF THE ORGANIC LAW OF THE PODER JUDICIAL
XXXVIII.Opinion drafted by Justice Araya García. Claims related to the legally mandated reductions (rebajos) to retirement and pension payments. Ley 9544 includes a chapter called "The Fund" that contains the rules governing its financing and other provisions relating to the moneys it will administer. The petitioners consider that two provisions of that chapter — Articles 236 and 236 bis — are unconstitutional, as will be explained. As for the first, its text reads:
"Article 236 — The Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Poder Judicial shall have the following sources of income:
In no case shall the sum of the mandatory contribution (contribución obligatoria) and the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) and, in general, the total of all deductions applied by law to all pensioners and retirees of the Retirement and Pension Fund of the Poder Judicial, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled by right. In cases where this sum exceeds fifty-five percent (55%) with respect to it shall be adjusted so that the sum equals fifty-five percent (55%) of the total gross amount of the pension.
The resources obtained through the mandatory contribution established in this law shall be deposited into the Retirement and Pension Fund of the Poder Judicial." The provision establishes a tripartite contribution (contribución tripartita) in which the State as such participates (on equal terms with its contribution to the CCSS system), the State as employer (Poder Judicial), and a third contribution of 13 percent called the "workers' contribution" (aporte obrero), borne by the Fund's participants—that is, active workers, retirees, and pensioners. A rule is also added 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 benefit or pension as the maximum sum for legally mandated deductions. This creates a floor of 45 percent of the gross retirement or pension amount, which is the minimum amount to be received once all legal deductions have been made.
It is worth noting that for the general case of a retirement benefit or pension funded by the Fund, the current total of legally mandated deductions applicable—both for active workers and for retirees and pensioners—includes the 13 percent contribution to the Fund; the portion corresponding to health insurance, currently set at 5.25 percent; a 0.50 percent fund administration fee; and a variable percentage depending on the gross amount of the retirement benefit, for payment of the salary tax established under the Ley del Impuesto sobre la Renta número 7092. The petitioners explain that, under Article 236 at issue, the total deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial may not exceed fifty-five percent (55%) of the full gross pension amount to which the beneficiary is legally entitled, which in their view means that the maximum retirement benefit a judicial officer could aspire to would in certain cases be less than 45% of their last salary, since this provision allows cumulative deductions to reach 55% of the retirement benefit, and consequently, they believe that what the retiree or pensioner would ultimately receive would be a ruinous figure that, furthermore, violates the principles of proportionality and reasonableness, since it also bears no relationship to the increase in retirement age and the number of years a worker must work in order ultimately to obtain a retirement benefit far below the last salary earned.
The petitioners consider that the new method of calculating the retirement benefit, along with all the applicable deductions, reduces it to such a degree that it constitutes "a ruinous, impoverishing, and undignified reduction not only for those who serve as judges of the Republic but for all persons who work in the Poder Judicial," entirely contrary to international law instruments indicating that States must guarantee judges remuneration "commensurate with the importance of the function they perform and with the demands and responsibilities that" the position entails, while also promoting adequate pensions and retirement conditions, equally adjusted to the responsibility of the position and the job held throughout their professional life. They further contend that this provision is questionable because it allows deductions to be calculated up to the maximum cap of 55% of the gross retirement amount, rather than with respect to the gross salaries used as the basis for calculating the retirement benefit.
On this point, they argue that Ley 9.544 authorizes confiscating up to 55% of the pension currently in payment, without the existence, at the time of its enactment, of technical studies supporting the reasonableness and proportionality of the measure, which implies that, from a constitutional standpoint, the challenged law is unconstitutional for failing to meet the necessary parameters in the lawmaking process that the Court has considered indispensable.
XXXIX.Drafted by Magistrado Araya García. The Procuraduría General de la República stated that, in accordance with the provision, it is not possible for the total legally mandated deductions applied to a judicial officer's pension to exceed 55% of the gross amount of the benefit; if that were to occur, this would no longer be a matter of the constitutionality of the provision, but rather of its application, which it considers not reviewable in constitutional jurisdiction proceedings. It again refers to the fact that the reasonableness, proportionality, and fairness of a legislative reform to a pension system must be measured against 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 Procuraduría considers that the changes made to the Poder Judicial pension system are backed by the necessary technical support to affirm their compliance with constitutional law.
The Corte Suprema de Justicia stated that, with respect to the deductions authorized for a retirement benefit, consideration must be given to Recommendation No. 43 of the Organización Internacional del Trabajo, according to which the retirement benefit or pension must meet the essential needs of persons in their old age, and therefore the amount must be set taking into account the "cost of living and social conditions during the period of professional activity"—that is, the standard of living that the worker had during their active professional life must be respected. It also noted that the Fund contribution was increased to 13%, maintaining that percentage for the contribution that pensioners and retirees must make, unlike other pension systems where, once a person retires or becomes a pensioner, they can no longer contribute; a condition that must be assessed in an integrated manner together with the rest of the articles, which also establish amounts that reduce the approved retirement benefit percentage on account of deductions for contributions, special solidarity and redistributive contributions, and income tax.
For her part, the President of the Asamblea Legislativa refers in general terms to the fact that this is one of the reforms introduced to the Régimen de Jubilaciones y Pensiones del Poder Judicial, which is grounded in the technical studies carried out and therefore has not been an arbitrary decision by the legislature.
XL. Written by Justice Araya García. To rule on this claim, the Court takes into account that the petitioners rely, in their argumentation, on a benchmark whose legitimacy and validity they fail to adequately substantiate. Accordingly, merely asserting that the retirement pension (jubilación) amount becomes ruinous and harmful to the dignity of retirees because the benefit may be reduced by more than 55 percent of the last salary received or of the reference salary (salario de referencia) cannot serve to persuade 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" appears to seek a close link between the retirement benefit and the retiree's last income level, such that a reduction of more than 50 percent from that level would represent an excessive decrease in available resources; however, in the first place, our pension systems (sistemas previsionales), including that of the Poder Judicial, have never used the last salary as equivalent to the retirement payment, so the petitioners should have begun by demonstrating that, as a constitutional matter, the use of such a benchmark is appropriate in this case, which has not occurred.
The closest approximation to this arises from the invocation of the text of ILO Recommendation No. 43, as raised at the time by the Corte Suprema de Justicia in the course of the legislative bill proceedings, to the effect that the retirement pension must be set taking into account the "cost of living and social conditions during the period of professional activity"; however, the Court notes that, apart from the fact that the recommendation merely called for "taking into account" the retiree's social situation during their working life, consulting the official website of the International Labour Organization (www.ilo.org) confirms that said recommendation and its criteria were issued in 1933 but were later withdrawn by agreement of the International Labour Conference in 2004, on the grounds that their content had been addressed by the issuance of ILO Convention 128 of 1967 (not ratified by our country), whose text closely follows the line established in ILO Convention 102 of 1952 (duly ratified by Costa Rica), which has in fact been applied by the Court in deciding these matters.
In light of the foregoing, the Court does not consider ILO Recommendation No. 43 and its contents to constitute a valid source for resolving the present case, given what is provided by Convention 102 of that organization, which does form part of our legal order; accordingly, said recommendation loses its standing even as a guide for defining the scope of legislative impacts on retirement payments. In the second place, the petitioners refer to high percentages of reduction relative to the last salary, but—apart from what has been said regarding that benchmark—the fact is that no technical evidence is provided concerning the actual impact and effect of the challenged legal reform, given that all deductions but one predate the reform, and the only nominal changes the Court can identify are: the increase from 11 to 13 percent in the employee contribution (cuota obrera) and a charge of 5 per thousand (i.e., 0.5%) to cover the expenses of administering the Fund (Fondo), so that—in its essence—the structure of the deductions does not differ greatly from that applicable to Fund participants during their working lives, nor from the prior legal situation that the petitioners invoke; accordingly, it was incumbent on the petitioners to demonstrate that these modifications caused a serious reduction in the real incomes of those affected, but such evidence is absent.
In the third place, the petitioners additionally indicate in this regard that the harm originates in the application of that deduction structure to a gross retirement amount (monto bruto) that is already significantly diminished, consisting of merely 82 percent of the reference salary calculated by averaging the salaries of the last 20 years, rather than the last 10 years as suggested by technical studies. However, this brings us back to the claims related to the conditions for the constitutional validity of determining a benefit system consistent with the need for the Fund to remain financially sustainable over time, precisely for the general benefit of all its participants, which has been upheld by this Court in the preceding considerandos, as it has determined that this constitutes, in this case, a constitutionally legitimate exercise of legislative powers. In the fourth and final place, it is not out of place to note that a claim such as the one raised here—characterizing retirement payments as "ruinous, pauperizing, and undignified"—cannot rest on abstract elaborations referring solely to percentages of reduction, because doing so ignores the fact that "ruin," "pauperization," and "indignity" do not operate in the abstract but are verified in reality against the insufficiency of payments and the actual amounts received; the point being made here is that speaking in the abstract of deductions of 50 or 55 percent of 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 approximately 2 to 3 million colones per month, which—in the experience of this Court and absent evidence to the contrary—cannot be deemed manifestly insufficient to live a dignified old age in our country.
In conclusion, this aspect of the claim concerning the excess of deductions relative to the last salary must be denied for failing to establish a violation of constitutional rights.
XLI. Written by Justice Araya García. A different answer must be given to the claim that some of the petitioners raise around this same subject, as they point to the constitutional invalidity of the provision contained in the final part of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial as reformed by the challenged Law, since—this time—they claim that what is regulated is a maximum cap of 55 percent in deductions relative to the gross retirement amount, which they consider excessive and harmful to the fundamental right to a retirement pension. On this specific matter, the Court had the opportunity to define its position in the recent ruling No. 2020-19274 of 16:30 hours of October 7, 2020, in which the following was set out in its operative part:
"By majority, the accumulated actions of unconstitutionality are declared partially well-founded. Consequently, the contribution percentage and the special levy established in Laws N° 9380 and N° 9383, both dated July 29, 2016, are annulled insofar as they exceed 50% of the gross amount of the pension to which the retired or pensioned person is entitled. However, pursuant to Article 91 of the Ley de la Jurisdicción Constitucional, in order to avoid serious disruptions to security, justice, or social peace, the Court calibrates and dimensions the effect of this ruling, such that, as of the month following 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 dismissed for different reasons. Regarding Laws N° 9381 of July 29, 2016 and N° 9388 of August 10, 2016, by unanimous decision the actions are declared dismissed. Justices Rueda Leal, Hernández López, and Garro Vargas give different reasons. In all other respects, by unanimous decision, the actions are declared dismissed. By unanimous decision, accumulated actions N° 17-007660-0007-CO and N° 17-005794-0007-CO are summarily rejected, as they failed to offer clear and precise argumentation of the grounds for challenging the rules that are the subject of this action. Justices Cruz Castro and Hernández López file separate notes. Justice Rueda Leal issues a separate vote on the following matters:
"X.- On the claim of non-confiscation alleged in the actions. The non-confiscatory principle (principio de no confiscatoriedad) is not expressly established in the Constitución Política, but must be implicitly derived from the relationship among Articles 18, 45, and 50 of the Carta Magna, as a limit on the State's taxing power. The Court, in delimiting the non-confiscatory principle, has established its intrinsic relationship with certain fundamental rights, but preferentially with the right to property, especially when it concerns material as well as intangible rights. Thus, by Sentencia N° 1993-05749 of 14:33 hours of November 9, 1993, this Court established:
"The State may take a proportional share of the income generated by a private individual in order to cover its expenses, but only insofar as it does not go so far as to nullify property as such, as would be the case if the tax were to absorb the income entirely. If the Constitution protects the right of property over the entire patrimony, one cannot recognize and admit that other provisions destroy it. Thus, in order to be constitutional, taxes must not distort other fundamental rights; the Constitution guarantees the inviolability of private property, as well as its free use and disposition, and prohibits confiscation, so that no taxation measure may be permitted that goes beyond what is reasonable and proportionate. A tax is an instrument of economic policy, which must be harmonized with public expenditure and economic conditions, and its limit is the individual's tax-paying capacity. 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 relates to the proportionality of taxes; the rates must be unequal in order to produce equal sacrifices, so that there is a relative equality with respect to the ability to pay — that is, the economic capacity of the person who must pay must be taken into account. If the Constitution in its article 45 establishes that property is inviolable, and in its article 40 that no one shall be subjected to confiscatory penalties, it is beyond doubt that a tax cannot be such as to render those guarantees illusory. What we must understand by 'a substantial part of the property or income' is something that cannot be established in an absolute manner; the element of discretion or reasonableness must be assessed in each specific case, circumstantially, according to the facts as they exist, the requirements of time and place, and the economic and social purpose of each tax.
However, it can be established as a principle that a burden is considered confiscatory when it exceeds the economic or financial capacity of the taxpayer, or when the tax absorbs a substantial part of the taxed transaction, and it will fall to the judge in each case to analyze these circumstances, which will logically be variable; the correct approach is to analyze those situations in a concrete manner." In like manner, that doctrine is repeated in other judgments of this Chamber, in which it has defined the principle of non-confiscation (no confiscatoriedad); for example, in No. 1995-554, of 16:45 hours of January 31, 1995 — reiterated by the aforementioned Judgment No. 2003-5276, of 14:54 hours of June 18, 2003 — among others. From the foregoing, the premise is clear that taxes must not distort 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 last prohibition must be understood as the impossibility of depriving a person, through a disproportionate penalty or exaction, of all or a significant part of their assets — whether by violation of a legal duty or through taxation — in order to transfer them to State ownership without any compensation. It must be stated that it falls to this Chamber to determine, with respect to this principle, whether the challenged regulations have confiscatory reach, understood in the sense that the taxing power (potestad tributaria) exceeds its bounds by burdening a portion of the property (or of a right) of the tax obligor (obligado tributario) that would be protected as a fundamental right.
It should be noted that the issue involves an exercise of balancing public powers and fundamental rights — specifically, the intensity of the exercise of the taxing power over property — since its limit would be the principle of non-confiscation. In this regard, progressivity in taxation finds its basis in the need to address the principles of contributory capacity (capacidad contributiva) and non-confiscation. What for some might be confiscatory, for others may not be, clearly depending on each person's contributory capacity. Tax justice must be closely linked to the principle of reasonableness and proportionality, especially on the subject at hand, where the maxim must be upheld that we must all contribute to public expenditure, but in accordance with the means of each tax debtor. While it must rightly be affirmed that the tax obligation must not exhaust the capacity to generate income and property, it is also imperative to reaffirm that taxes cannot absorb a portion of social security (seguridad social) benefits, especially when those benefits are covered by international law, even though, as an economic benefit from the State, they have not yet entered (or should have entered) the individual's patrimony.
In that regard, it must be recognized that the monetary benefit received by the pensioner is capable of being taxed, yet there is a limit — as noted above — on the amount. Thus, as the petitioners argue on the basis of the principle of non-confiscation, it cannot be permitted that taxes absorb what they argue constitutes people's property, and which this Chamber understands as the economic benefit received derived from the right to a pension, which leads to the conclusion that the money that has effectively entered the individual beneficiary's sphere would be private property that could not be reached retroactively by the challenged regulations. Nevertheless, the problem lies in the deduction that has been made by way of excess (of at least up to 5%) from the economic benefit that the State should not have made — which by right belongs to pensioners and retirees — especially if that portion has been recognized as their pension entitlement. In this we refer to the excess 5%, with respect to all the taxes that the pensioner or retiree must pay.
Now, specifically, the constitutionally relevant problem lies in the fact that the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) is made through graduated deductions applied to a gross amount, which then return to the State's single treasury (caja única del Estado) (pursuant to article 4 of Law No. 9383, to finance the pension scheme and the non-contributory scheme of the C.C.S.S.). To this is added the contribution percentage for pensioners, retirees, and active public servants, which is applied, pursuant to the regulation, in a graduated and proportional manner according to the salary or pension amounts in question (from 9% to 16%), as provided in paragraph 2 of article 11 of Law No. 7302, as amended by Law No. 9380. And as noted above, these reductions also include other taxes, such as income tax levied on the gross amount.
That is to say, 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 portion of their income (by at least 5%), by applying taxes in order to transfer that portion to State ownership without any compensation. This Tribunal acknowledges that the impact this has on the economic situation of the elderly person — especially from one moment to the next — is not something easy to absorb, particularly when the customary economic income is abruptly reduced by more than 55%, all of which produces a considerable regression in the economic situation of the elderly person. It has been argued that these deductions contravene a margin of dignity and adequacy for the elderly person in old age, and that, for the reasons stated above, scrutiny of these rules must lead to the conclusion that, by failing to comply with Convention No. 102 of the International Labour Organization, the State is in breach of its duty to provide a comprehensive pension amount.
There is no doubt, for this Tribunal, as stated in the preceding paragraphs, that when the State demands that taxpayers pay taxes, this demand must comply with certain standards. In this regard, as discussed previously, these would be internationally binding parameters for the Costa Rican State, which it cannot disregard or seek to nullify if a higher-ranking rule provides greater protection, especially in favor of the human person. Under this framework, the State has first recognized the petitioners' right to a pension in accordance with the legal system it enacts, in which case they are entitled to receive an economic benefit as holders of the right — that is, a benefit amount without discrimination, as corresponds to them. Likewise, that amount would be subject to certain conditions that the regulatory framework must meet, and it would be unlawful for the State to deviate from those conditions.
The Chamber understands, from the brief filed by petitioners Ramos Valverde and Pacheco Salazar, as well as the intervening parties (coadyuvantes) Vargas Aguilar and others, that what is being challenged is the special contribution itself, and the confiscatory impact on those income amounts that diminishes the dignity or adequacy of the economic benefits. On this point, based on official data, it is important to bring up the comparison of economic benefits offered among the national schemes, insofar as the Hacienda pension scheme is compared with other schemes, some without and others with a contributions fund. Moreover, the Ministry of Labor and Social Security (Ministerio de Trabajo y Seguridad Social), as well as the National Director of Pensions (Directora Nacional de Pensiones), seek to demonstrate, on the basis of the table transcribed below, that there are significant differences between the non-contributory scheme, the basic contributory pension scheme (both administered by the Caja Costarricense de Seguro Social), and the pay-as-you-go scheme (régimen de reparto) or pension scheme based on the national budget, which continues to be comparatively better positioned. This is in addition to the fact 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):
| Non-Contributory Scheme (Single monthly amount) | IVM Scheme (Maximum monthly amount) | Schemes Charged to the Budget (Average pension) * | Monthly pension amount for the petitioner applying all legally mandated deductions and the Solidarity Contribution (January 2017) |
|---|---|---|---|
| ¢78.000,00 | ¢1.527.477,00 | ¢464.641.20 | ¢3.508.509.44 |
*Average pension amount taking into account the 18,700 persons who would not be subject to the special solidarity and redistributive contribution.
From the foregoing, it is observed that, despite drawing a comparison between a basic scheme such as that of the Caja Costarricense de Seguro Social — with respect to the pension amount used as an example for the petitioner Ramos Valverde under the Hacienda Regime as modified by the challenged legislation — the amounts received still reflect a significantly better economic position, by more than 2.3 times. Nonetheless, the authorities compare it against the Caja Costarricense de Seguro Social scheme, thereby comparing two different systems: one in which a formally constituted fund does exist, with its corresponding contribution mechanisms, investment of funds, and reserves — a system that is not itself under examination — but which is evidently not the same as the pure pay-as-you-go (reparto "puro") system financed through the National Budget, as the petitioners rightly argue and the authorities themselves explain.
Although the authorities demonstrate that the Hacienda Regime improves the economic benefit received by the pensioner, it is a system that operates without a formally constituted fund, and when compared with the system protected under the basic national framework anchored to the Caja Costarricense de Seguro Social and other substitute schemes, that argument leaves aside a truly relevant aspect: namely, the level of salary contributions (cotizaciones salariales) made into the system for a fund and investment portfolio, as occurs with others such as those of the Magisterio Nacional, the Poder Judicial, and others, which are not being taken into account.
On the other hand, it is illustrated that within the Hacienda Regime itself, the higher pensions improve the average relative to those that would not exceed the contributory base established by the challenged provision, whose mean amount of ¢464,641.20 would still be surpassed by 7.55 times. The comparison uses as reference points a universe of pensioners (18,700) below ten reference salaries, set against a single individual reference — a comparison that seeks to demonstrate the State's response, but which must be analyzed with greater depth. Specifically, a special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) is designed to be imposed on retirees and pensioners, so as to produce a significant reduction 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 cap certain pensions.
Yet the foregoing is alleged to affect the customary economic benefit that pensioners and retirees had been receiving, and it must therefore be demonstrated that there exists a reasonable and proportionate justification with respect to the totality of the economic benefit intended to be affected — notwithstanding the fact that this legislation reduces income beyond the limits established in the standards to which the country itself committed under Convention No. 102 of the International Labour Organization.
What must be analyzed in the regulation is the reasonableness of the percentages and the effect they produce, particularly because the pension value falls on the gross amount, which means that various compulsory levies (exacciones coactivas) apply to the pension and would exceed the total permissible costs that may be taxed, and it must be questioned whether there is a violation of the principle of non-confiscation (principio de no confiscatoriedad) insofar as it contravenes the right established in the Convention, given that it exceeds 50%. In that regard, it would be necessary to determine whether, in application and by reason of its consequences or effects, there exists an unconstitutionality with respect to technical reasonableness and proportionality. This Court finds that all of the foregoing produces a significant reduction in the net portion of the benefit, after applying the relevant contribution percentages and the contribution amounts that must be paid.
However, considering these other applicable payments, as this Court established above, all levies considered together — taxes, rates, contributions, social contributions (cotizaciones), income charges, and statutory deductions — cannot exceed 50%, since doing so would not only breach the principle of community solidarity but also the constitutional principles of reasonableness and proportionality; and furthermore, as a benchmark, it would constitute a violation of paragraph 2 of Article 71 of Convention No. 102 of the International Labour Organization.
Regarding the requirement to pay more in taxes, it must be stated that the design of the challenged provisions is based on a fixed parameter composed of ten times the lowest base salary (salario base) paid in the Public Administration, according to the public administration salary scale issued by the Dirección General de Servicio Civil. That is, there exists a tax-exempt minimum quantified by the legislation, which expands as the fixed base salary decreases. If the pensioner's gross amount exceeds that threshold, the law mandates the application of a graduated and progressive levy contained in the provision.
Accordingly, Article 3 of Ley N° 9383 provides as follows:
"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 Dirección General de Servicio Civil, and up to twenty-five percent (25%) of said sum, they shall contribute twenty-five percent (25%) of such excess.
The importance of the foregoing explanation lies in the fact that the provision taxes the excess above the ten minimum salaries indicated above, increasing the tax burden as the pension amount surpasses each previously defined excess — meaning that the greater the amount received, the greater the contributive obligation. The problem with the provision relates to the cumulative and escalating effect it produces together with this and other taxes of a similar nature (which are levied on gross income), given that the challenged provision concludes that in no case shall the special, solidarity-based, and redistributive contribution and the totality of the deductions applied to all pensioners and retirees covered by the present law represent more than fifty-five percent (55%) of the total gross pension amount to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.
In this way, the provision establishes a total levy of up to fifty-five percent (55%), which would exceed what is permitted under subparagraph 2 of Article 71 of the International Labour Organization Convention, which fixes the establishment of pension costs at 50%, with the assistance of the taxes and contributions of the community as a whole, not merely of workers, pensioners, and retirees. This means that the taxpaying debtor — in this case, the pensioner — would be contributing even more in taxes through income tax, which would entail greater costs and deductions in their case and an even greater sacrifice demanded by society.
For the foregoing reasons, the majority of this Court finds that the action must be upheld on this point, as will be stated in the operative part (parte dispositiva) of the judgment.
Consequently, the final portion of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial, as amended by the challenged law, must be partially annulled — but solely and exclusively with respect to those 5 percentage points of excess above the 50 percent ceiling established by this Court as the maximum cap for statutory deductions on gross retirement or pension amounts.
XLII. Drafted by Magistrate Hernández López. On the special, solidarity-based, and redistributive contribution created by Article 236 bis of the Ley Orgánica del Poder Judicial. With regard to Article 236 bis of the Ley Orgánica del Poder Judicial, added by the challenged law number 9544, the petitioners indicate that it likewise generates an unjust and unconstitutional reduction of the income of a group of retirees and pensioners. At the time the actions under review were filed, the text of the aforementioned provision read as follows:
"Article 236 bis — Special, solidarity-based, and redistributive contribution of pensioners and retirees.
In addition to the ordinary contribution (cotización común) established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be established shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following schedule:
In no case shall the sum of the special, solidarity-based, and redistributive contribution and the totality of the 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 pension amount to which the beneficiary is legally entitled. In cases where this sum exceeds fifty-five percent (55%) of the total gross pension amount, the special contribution shall be readjusted so that the sum equals fifty-five percent (55%) of the total gross pension amount.
The resources obtained through the special, solidarity-based, and redistributive contribution established in the present law shall be deposited into the Fondo de Jubilaciones y Pensiones del Poder Judicial." The regulation contemplated an additional financial burden in favor of the fund, borne by those retirees and pensioners who received retirement or pension payments above the cap of 10 base salaries established in Article 225 of the Organic Law of the Judicial Branch as the maximum amount payable by the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). Accordingly, it is valid to affirm that the special solidarity contribution (contribución especial solidaria) had an intrinsically transitory character, inasmuch as it would apply only to those who had acquired the status of retirees and pensioners under the prior pension system design that did not set a cap on the payment of retirement amounts.
It is this statutory text, which formed part of the original design of the aforementioned contribution, that will be analyzed in the following considerandos, with two caveats: the first, that Article 7 of Law No. 9796 of December 5, 2019, amended subsection a) of the recently cited Article 236 bis to provide that the application of the special redistributive and solidarity contribution (contribución especial redistributiva y solidaria) shall apply to all gross retirement or pension amounts exceeding six (6) base salaries of the lowest-paid position in the Judicial Branch, thereby modifying the original statutory design, while maintaining the maximum cap (equivalent to 10 base salaries) as the ceiling for retirement payment amounts established in Article 225; and the second, that as a result of that change in the design of the special contribution set forth in Article 236 bis of the Organic Law of the Judicial Branch, some petitioners raised within these proceedings a request for a declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) against the recently cited Law No. 9796, but that claim will not be the subject of consideration or analysis here, but rather in the corresponding case file, for the reasons to be stated further below.
XLIII. Continued by Justice Hernández López. The petitioners' 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 deduction that they consider excessive, disproportionate, and unreasonable, since it fails to take into account that throughout their entire working life, the judicial officer had been contributing to the system at an average of 11% per month on their gross salary, and that said contribution, increased by two percentage points, will continue to be made after acquiring the right to retirement or, as applicable, to a pension in cases where such pension is available. They further contend that this "new" contribution being created is contrary to the principle of equality (principio de igualdad), is confiscatory (confiscatoria), and constitutes double taxation (doble imposición), since judicial officers are being required to make two separate payments for the same purpose, which is to strengthen the Judicial Branch Retirement and Pension Fund. In addition to the foregoing, they contend that the fundamental rights of older adults are violated because these new burdens considerably alter the amounts of money they were accustomed to receiving, with the consequent financial harm this represents to their financial obligations.
XLIV. Continued by Justice Hernández López. The respondents in these unconstitutionality proceedings made the following statements on this point: the Office of the Attorney General (Procuraduría General de la República) and the Presidency of the Legislative Assembly both concur in denying the unconstitutionality of the creation of a special solidarity and redistributive contribution, since the concept is not novel, has been used in the past, and has been upheld by the Court, as for example in judgment 1996-3256. For that reason, there is nothing to prevent the legislature from establishing a type of special contribution within the design of a pension system. With regard to the principle of equality, they likewise find no violation, since not only do contributions exist in other special systems, but the Judicial Branch retirement and pension system cannot be compared in this respect to that of the CCSS, as their characteristics, conditions, and benefits are different, and one cannot expect to take from each system whatever suits a particular group of officers or former officers.
They also reject the existence of double taxation, since the contribution to the fund imposed on all beneficiaries of the Judicial Branch Retirement and Pension System is one thing, and the solidarity and redistributive contribution imposed exclusively on retirees and pensioners who receive economic benefits exceeding ten times the base salary of the lowest-paid position in the Judicial Branch is another; a contribution that is moreover proportional and progressive, and has a nature distinct from that of the regular contribution, and therefore is not considered to be contrary to the Political Constitution. The Vice President of the Supreme Court of Justice stated that her institution, from the very beginning, opposed the wording of the provision contained in Article 236 bis because the contribution now called a solidarity contribution is already implemented in the current system—at that time—since retirees and pensioners of the Judicial Branch continue to contribute to the system at the same percentage as active workers, which at that time was 11%, and that any additional solidarity contribution should be calculated starting from that percentage already being contributed; she further noted that Judicial Branch retirees and pensioners were also required to contribute to the CCSS sickness and maternity insurance (seguro de enfermedad y maternidad) at a rate of 5%, in addition to paying income tax (impuesto sobre la renta) at between 10% and 15% depending on the range of their retirement or pension.
Moreover, she indicated that the Full Court (Corte Plena) stated that this solidarity contribution could not exceed 20% considering the 11% already being contributed, since otherwise the total deductions would be confiscatory and would undermine the applicable international and constitutional norms, noting that for this reason the legislature had been formally urged to exercise special care with the deductions imposed so that they would not prove to be confiscatory.
XLV. Written by Justice Hernández López. The constitutionality of the legal concept of the special, solidarity, and redistributive contribution in general. This Tribunal has held on prior occasions that the so-called special, solidarity, and redistributive contribution is not assimilable to a tax (tributo) and does not constitute one within the terms provided by the Political Constitution in Articles 18 and 121, subsection 13), inasmuch as it is conceived solely to benefit the system of the obligated contributors, but under no circumstances may those funds enter the coffers of the State as current revenue to cover expenses other than those of the retirement and pension system (see in that regard judgment No. 5236-99 of 14:00 hours of July 7, 1999). It has also been held that this type of contribution is a legal obligation arising from a system that contemplates contributions from enrolled officers, and that the act of setting the contribution must be subject to review, such that it is possible to examine, in judicial proceedings, compliance with the established legal procedure and the reasonableness (razonabilidad) of the contribution amount (see judgment No. 5236-99 of 14:00 hours of July 7, 1999).
Thus, the special, solidarity, and redistributive contribution established in Article 236 bis of the Organic Law of the Judicial Branch is not a novel mechanism that the legislature employs in an attempt to strengthen a retirement and pension system; on the contrary, it has already been used in other systems, as was done in Law No. 7268, which is the Reform to the National Teaching Profession Pension System (Reforma al Régimen de Pensiones del Magisterio Nacional), and this Tribunal, in unconstitutionality action No. 3683-M-93, had analyzed that contribution and found the following:
"III. ON THE CONTRIBUTION CONTEMPLATED IN ARTICLE 12. The contributions, both the general and the special, established as an obligation of pensioners and retirees under Article 12 of Law No. 7268, have constitutional legitimacy, first because they are measures grounded in the social nature of the right to retirement (derecho de jubilación), which fall within the principles that make up the Social Rule of Law (Estado Social de Derecho) embodied in Constitutional Article 50, and second because, given that indisputable social nature, the right to retirement requires active and predominant State participation for its effective realization, so that although it could not be eliminated or entirely disregarded, it may be limited, conditioned, and restricted to the extent that the State—society—finds itself materially unable to contribute to its effective implementation beyond a certain level, and such limitations must be accepted since their purpose is precisely to ensure the survival and effective exercise of the right to retirement for all workers and specifically the materialization of the right to retirement for all members of the National Teaching Profession Pension System. For further support, reference may be made to this Court's ruling No. 1925-91 of twelve o'clock noon of September 27, 1991, in which it was stated:
"1) Nature of the contribution to the system: The first issue raised is to determine whether the contributions established in this article of the bill are or are not a tax. The pension and retirement system subject to this analysis corresponds to the modality known as contributory (contributiva), in which a fund is constituted with contributions from workers, employers, and the State to cover the cost of benefits once the worker takes retirement. It falls to the law to define, in accordance with the particular characteristics of each pension or retirement system, the amount of contributions corresponding to each of the three parties. As noted in the referral, the Supreme Court of Justice, in its ruling of 15:00 hours of August 12, 1987, dismissed the unconstitutionality action filed against the authority of the CCSS to set the rates and benefits of social insurance. This Court concurs with what was expressed there and finds no reason to depart from that criterion, which it adopts as its own, declaring that the contribution referred to in Article 12 of the bill is not, by its nature and effects, a tax, as the most authoritative constitutional jurisprudence and doctrine have indicated." Also, in judgment No. 1341-93 of ten o'clock thirty minutes of March 29, 1993, the matter was revisited and the criterion previously expressed on the subject was reiterated, stating the following:
VII.CONTRIBUTION TO THE RETIREMENT AND PENSION FUND AND CONFISCATION.- It is also argued, in connection with the various retirement systems, that requiring beneficiaries of those systems to contribute to the Fund violates their fundamental rights, because it gives retroactive effect to Ley 7268 or Ley 7302, as the case may be, and that the measure is, in any event, confiscatory. This Court, by Voto No. 1925-91 of 12:00 noon on September 27, 1991, held that the contributions collected pursuant to article 12 of Ley 7268 do not constitute a tax, because the system is structured according to what is known as the contributory model (modalidad contributiva), under which a fund is established through contributions from workers and beneficiaries, employers or patrons, and the State, in order to cover the cost of the benefits; and it is for the law to define, in accordance with the particular characteristics of each pension or retirement system, the amount of the contributions each party must make.
The Court expressed this view in the optional legislative consultation (Consulta Legislativa facultativa) conducted during the legislative approval process for Ley 7268, in which specifically article 12 of that law was submitted for consultation. The Court stated that the contribution is the payment of a legal obligation, an essential condition for the very existence of the system, and that its basis is the strengthening of the Fund for the protection and benefit of the contributors themselves. The setting of the contribution amount, within the limits established by the law itself, must be guided by technical, actuarial criteria in order to determine the actual cost of the system, such that "the only way in which persons entitled to a pension or retirement benefit can fully enjoy it is by paying the proportional share of the total cost of the system that falls to them" (Cf. the ruling cited), and the purpose of the law is thus consistent with the Christian principle of social justice (Art. 74 of the Political Constitution) and proportionate to the duty to contribute in accordance with the benefit received.
From that same perspective, the Court concluded that the contribution is not confiscatory. The Court finds no reason to depart from the view it expressed, and with respect to this aspect of the amparo proceeding, it must be dismissed, the Court maintaining its jurisprudence (Article 9 of the Law of Constitutional Jurisdiction)."
Based on the foregoing, the special, solidarity-based and redistributive contribution (contribución especial, solidaria y redistributiva) challenged in this action of unconstitutionality must be understood as a constitutionally valid limitation on the right to retirement (derecho a la jubilación), arising from the social character of that right, and is therefore not unconstitutional in itself, nor in relation to the objectives pursued by its creation.
XLVI.- Drafted by Justice Hernández López. On the creation of the special, solidarity-based and redistributive contribution as a power of the Legislative Branch.- The petitioners argue that, pursuant to article 121, paragraph 13, of the Political Constitution, the Legislative Assembly does not have competence to create special, solidarity-based and redistributive contributions in favor of a specific fund, given that that paragraph states "to establish national taxes and contributions," and that the legislature's freedom of configuration is limited by constitutional law. Nevertheless, the Court considers that this claim is without merit because, as stated above, the special, solidarity-based and redistributive contribution is not structured as a tax but rather as a parafiscal levy (carga parafiscal), grounded in the social nature of the right to retirement, and falls within the principles that make up the Social Rule of Law (Estado Social de Derecho) enshrined in article 50 of the Constitution; it is therefore constitutionally valid.
Furthermore, as noted, it is vested with an indisputable social character that is protected by the State through the adoption of measures necessary for the effective realization of the social right to which it is directed, making its imposition valid precisely in order to ensure the survival and effective exercise of the right to retirement for all workers of the Judicial Branch.
Likewise, it must be recalled that, for this Court, measures such as the special, solidarity-based and redistributive contribution — as contributions to social security — are parafiscal contributions, imposed in the exercise of the State's sovereign power (potestad de imperio) for the fulfillment of social or economic objectives, and may be created only through formal legislation.
On the subject of the parafiscal contribution, constitutional jurisprudence, following legal doctrine, has held that parafiscal contributions are instruments belonging to the general system of taxation. By way of example, see judgments 4785-93 and 6478-96. In the latter, the following was established:
"II.- On the merits: the petitioner challenges the employer monetary obligation established by article 5 of the Organic Law of the Banco Popular y de Desarrollo Comunal, which is reproduced below, in the relevant part:
'Article 5.- The Capitalized Labor Fund shall be formed by:
"This special legal configuration necessarily means that the contributions — both those of the producers and those of third parties, including the State, that make up the Fund (subparagraph a) of article 2° of the same law) — are genuine 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 revenues and expenditures, hence the name used to refer to them. Financial Law doctrine itself defines the concept as 'taxes established in favor of public or semi-public entities, whether economic or social, in order to ensure their autonomous financing.' This means 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, there is a common denominator: we are dealing with a contribution coercively imposed by the State to achieve a specific economic or social objective for a group of persons sharing common interests (farmers, professionals, cooperative members, workers, etc.).
Furthermore, the protection afforded by article 34 of the Constitution is not affected by the creation of the challenged solidarity contribution, given that it does not operate retroactively but rather takes effect from the date the creating law enters into force, a feature it shares with taxes in general.
It is invoked as a violation that the Legislative Assembly created a special tax when, pursuant to article 121, paragraph 13, of the Constitution, that constitutional body is only empowered to establish national taxes and to 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 levy dedicated to an economic and social purpose, in this case the covering of the administrative expenses of the governing board being created — which is more than justified both constitutionally and doctrinally. Second, it is logically consistent that, if a group of workers has a special retirement and pension system constituting a fund separate from the general system — the disability, old age, and death system administered by the Caja Costarricense del Seguro Social — it is reasonable and proportionate for active workers, retirees, and pensioners to contribute to the upkeep of the body that has competence to administer it. Finally, if the Legislative Assembly has the power to create taxes of general application, that does not preclude it from creating parafiscal contributions when there are objective and reasonable grounds for doing so.
XLVII. Drafted by Magistrada Hernández López. The special, solidarity, and redistributive contribution (contribución especial, solidaria y redistributiva) and the claim of double taxation (doble imposición) for the same purpose.— The petitioners argue that the special, solidarity, and redistributive contribution created in favor of the Fondo de Jubilaciones y Pensiones del Poder Judicial constitutes double taxation for judicial employees, as well as for retired and pensioned judicial workers, since in addition to being required to continue making a levy (cotización) of 13% of their income to the fund, they are now also required to contribute between 35% and 55%, which they consider unconstitutional. The Procuraduría General de la República holds that there is no double taxation in this case, since a distinction must be drawn between the levy imposed on all beneficiaries of the Régimen de Jubilaciones y Pensiones del Poder Judicial and the so-called special, solidarity, and redistributive contribution, which is imposed only on retirees and pensioners (jubilados y pensionados) who receive economic benefits exceeding the established cap of ten times the base salary (salario base) of the lowest-paid position in the Poder Judicial; a contribution that is also proportional and progressive, and has a different nature from that of the levy, and is therefore not considered contrary to the Constitución Política.
The Vice-President of the Corte Suprema de Justicia did not comment on this specific point but—as summarized above—argues for the unconstitutionality of the special contribution as such, on the grounds that there is already a heavy burden on retirees and pensioners who must continue to pay 13 percent of the gross amount of their retirement or pension benefit. For the Court, the special, solidarity, and redistributive contribution does not, as a constitutional matter, constitute double taxation, since in its original design (prior to the reform enacted by Ley 9796) it serves a separate purpose from that pursued by the general levy imposed on all beneficiaries of the Régimen de Jubilaciones y Pensiones del Poder Judicial to ensure its sustainability and normal operation. Unlike this general levy, the Court is clear that the aforementioned Art. 236 bis sought to tax the amounts exceeding the maximum retirement or pension cap payable by the system, set by Art. 225 of the Ley Orgánica del Poder Judicial at 10 times the base salary of the lowest-paid position in the Poder Judicial, with the understanding that such excesses arose in a finite and identifiable group of retirement and pension benefits granted under the rules of the prior system (whether currently being paid or already declared but suspended pending payment), and were therefore clearly temporary in their application and unsustainable under the contribution framework established for the new design.
Thus, the charge established in the contested Art. 236 bis to tax such excesses was necessary, not to contribute to sustaining the normal budgeted expenditures of the new system, but rather to prevent the financial imbalance caused by the Fund's legal obligation to cover certain expenditures inherited from the prior system that are beyond the scope of the new design. Under this reasoning, there is no double taxation from a constitutional perspective, since the purposes of the two charges are clearly differentiated: the 13 percent levy is a permanent burden aimed at financially sustaining the fund and ensuring its benefits, while the special and solidarity contribution under Art. 236 bis is specific and temporary in its very conception (at least before the reform enacted by Ley 9796) and was directed at mitigating the economic impact of taking on the burden of retirement and pension benefits from the prior system—both those currently being paid and those already declared at the time but pending actual receipt by the beneficiaries.
At this juncture, the Court reiterates its caveat that it is aware of and has taken into account the existence of and changes brought about by the enactment of Ley 9796, already cited, and that what has been stated here applies to the original text of Art. 236 bis of the Ley Orgánica del Poder Judicial and to the objections raised by the petitioners with respect to that text.
It is also worth recalling that the power to legislate in general and in tax matters in particular is not limited by the existence or preparation of technical studies; it cannot therefore be claimed that the legislature must have a specific technical study as a prerequisite for exercising its discretionary authority in this area, since that would be contrary to the nature and purposes of the legislative body as designed under our Constitución Política. In the case under review, the burden imposed has—as has been analyzed—a valid purpose, is directed at taxing an indisputable economic capacity (capacidad económica), and is progressive in its design. Moreover, it is only confiscatory (confiscatoria) to the extent that it exceeds 50% of the total charges that a person must bear on their pension or retirement benefit, as explained above.
In conclusion, the Court holds that Art. 236 bis of the Ley Orgánica del Poder Judicial does not constitute a case of constitutionally prohibited double taxation.
XLVIII. Drafted by Magistrado Araya García. On the claim regarding the lack of reasonableness and proportionality (razonabilidad y proporcionalidad) of the special, solidarity, and redistributive contribution established in Art. 236 bis of the Ley Orgánica del Poder Judicial.— The petitioners claim that the special, solidarity, and redistributive contribution violates the principles of reasonableness and proportionality because it significantly reduces the amounts that retirees of the Régimen de Jubilaciones y Pensiones del Poder Judicial ultimately receive—amounts reduced not only by the 13 percent levy to the Fund but also by percentages of 35 to 55 percent on the excess amounts—without any reason or justification for doing so, and solely with the aim of preventing people who earned the right to receive a high pension from receiving such amounts, which are considered a luxury without being so in any way.
XLIX.— Drafted by Magistrado Araya García. From the reports received on this matter, the Court notes that the Procuraduría General de la República states that, in light of the validity this Chamber has attributed to the existence of special contributions imposed on pensioners under certain systems, it is clear that nothing in the constitutional framework prevents the legislature from imposing a contribution on members of the Régimen de Jubilaciones y Pensiones del Poder Judicial, provided that such contribution is progressive and proportional. The Vice-President of the Corte Suprema de Justicia reported that on this point as well, the Corte considered the contribution unconstitutional, since it involves a tax burden that must respect constitutional principles such as statutory reservation (reserva de ley), proportionality, economic capacity, non-confiscation, among others; further noting that the Poder Legislativo was earnestly urged to exercise special care with respect to the deductions imposed so that they would not prove confiscatory—since in addition to the solidarity contribution, the standard retirement benefit was being set at 85% (as the bill indicated at that time), to which deductions such as a 15% Fund contribution (as the bill indicated), 5% for health insurance, and 15% in income tax would have to be added, and when all those amounts were totaled, the retired person would end up with nearly 50% less than what they earned while actively working, without even taking into account that the calculation was not made at that time based on the current salary but rather on a prorated average of the last 20 years of work.
The representative of the Poder Judicial further added that this situation also affected retirement and pension benefits already granted and currently being received, since those carry charges ranging from 31% to 35% of the total entitlement, which, added to the lowest percentage of the solidarity quota of 35%, yielded a total of 60%, which could prove confiscatory, disproportionate, and ultimately contrary to constitutional principles.
L.— Drafted by Magistrado Araya García. To address this claim, the Court refers to what was stated in previous considerandos regarding the nature and purpose of the special, solidarity, and redistributive contribution, as set forth in the original design of Art. 236 bis of the Ley Orgánica del Poder Judicial, and recalls the fact that it constitutes a burden on those high retirement and pension payments brought into the new system put into operation by the reform. The Court also emphasizes in particular that with respect to the maximum cap on deductions—which the petitioners challenge as a key element underlying the lack of reasonableness and proportionality in the special contribution—this matter was decided above, by majority, in line with what was stated in ruling number 2020-19274 cited above, to the effect that the percentage of legal deductions—in cases where they are constitutionally applicable—may not exceed 50 percent of the gross pension amount. In addition to the foregoing, and given that the claim against the reasonableness and proportionality of the special contribution uses as a benchmark the concept of "last salary" or "income level at the time of retirement," the Court must reaffirm what it stated regarding the insufficiency of the actions filed to constitutionally justify the choice of such a benchmark for evaluating the deductions.
LI.- Drafted by Justice Araya García. Having set out the foregoing, the Court must now analyze whether the structure of the deductions (rebajos) themselves gives rise to any unreasonableness or disproportionality of constitutional magnitude that this Tribunal must correct, bearing in mind that, as this Chamber has consistently held, in disputes of this type concerning the amounts to be received, the constitutional right to receive a retirement pension (jubilación) or a pension (pensión) is not at stake—since that right does not consist of the right to receive a specific sum of money, and therefore the amounts payable may be adjusted according to the State's financial capacity and pension system design, provided that a person's dignity is not affected and they are not prevented from enjoying their other fundamental rights and, in general, from leading a dignified life. As an initial observation, it is noted that this special burden, as designed in the actions under review, sought to tax the amounts exceeding the cap set in Article 225 of the Ley Orgánica del Poder Judicial—namely, ten times the minimum wage paid within the Judicial Branch, which was established for the year 2020 at 433,800 colones.
Accordingly, the application of the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) would have begun to be deducted on amounts in excess of 4,330,800 colones, thereby fulfilling the stated purpose of offsetting, through extraordinary revenue, the equally extraordinary expenditures that the fund would need to face; this need was clearly set out in the technical study and proposal used as the legislative basis by the Asamblea Legislativa, as can be seen on folio 1984 of the legislative file (expediente legislativo), which contains summary tables of the four regulatory frameworks proposed by the IICE and which explain—in the paragraph on additional revenue—the need for a solidarity contribution for payments above the proposed cap, clarifying that a single percentage rate would apply. Moreover, the necessity and suitability of this measure become even more apparent when one notes that the Asamblea excluded from the final text the sums corresponding to abandoned judicial deposits that had been included in the technical proposal as additional resources within the aforementioned recommended regulatory frameworks.
It must also be borne in mind that what was approved was a progressive scale which, in this revenue-collection context, affords far greater protection to those affected—a fact that, in the Chamber's view, satisfies the requirement of proportionality in the strict sense. The petitioners insist that the deductions could reach a magnitude that deprives retirees and pensioners of the possibility of living a dignified life; however, in this regard, the arguments set out in judgment 2020-19274 are fully applicable. That judgment held, by majority, that the reduction of retirement pension 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 deemed dignified. In the specific case at hand, and with the original cap indicated above, recipients of the lowest retirement pensions or pensions within the group affected by this special, solidarity-based, and redistributive contribution would have to receive 50 percent of the gross amount; that is, in the worst-case deduction scenario for them due to increases in legal contributions of any kind, the minimum amount to be received would be 2,150,000 colones.
It was incumbent upon the petitioners to demonstrate clearly that this sum is generally insufficient to appropriately cover the average needs of a retired or pensioned person in our country. It must further be taken into account that, pursuant to the pension system derived from the Ley de Protección al Trabajador, retirees will have additional sums available from their funds in the other two pillars. From the foregoing, it is concluded that there is likewise no constitutional defect in the original design of the special, solidarity-based, and contributory contribution set forth in the original text of Article 236 bis of the Ley Orgánica del Poder Judicial.
On the other hand, some petitioners challenge the creation of a five per thousand (5 x 1000) deduction from the salaries earned by judicial employees and from the retirement pensions and pensions charged to the Fund, established to finance the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, arguing that this Board and the burden it entails are unjustifiable and harmful to the fundamental rights of Fund members. Regarding this matter, it should be noted that under the former Ley 7333, the Fund was not required to incur any administrative expenses, since that function was carried out by the Consejo Superior and the Corte Plena without generating any cost to its members; however, following several objections raised on this point by the Contraloría General de la República and the Superintendencia General de Pensiones during the sessions of the Special Committee (Comisión Especial) that analyzed bill No. 19922—which culminated in the enactment of Ley No. 9544—representatives of both institutions expressed to the legislators the need for the Judicial Branch Fund to have its own management mechanism, independent of the hierarchical authorities of the Poder Judicial or the Consejo Superior.
Thus, in an appearance before that Committee on November 16, 2016, the Contralora General de la República stated that the Poder Judicial needed a body to administer the fund, expressing concern about how it would be financed and noting that this was a matter that should be incorporated into any bill under consideration. For its part, in an appearance by the Superintendent of Pensions before that Committee on March 29, 2017, that official informed the legislators that it was necessary to create a board to administer the Fondo de Jubilaciones y Pensiones del Poder Judicial, as this was a matter of good corporate governance practices independent of any technical study; he further affirmed that in the Poder Judicial, the Fund Manager was overburdened because that person was simultaneously Head of the Poder Judicial and Head of the Consejo Superior, making the creation of such a body necessary.
He suggested not only that the JUPEMA model be used, but also that the body be financed by a deduction of five per thousand from the salaries earned by judicial employees and from the retirement pensions and pensions charged to the Fund—a suggestion that had previously been advanced by that Superintendency in similar terms, as can be seen on folio 266 of the legislative file. The legislators decided to follow the recommendation to create the Board based on the JUPEMA model, adopting as a reference Article 106 of Ley No. 2248, which is the Ley de Pensiones y Jubilaciones del Magisterio Nacional, which provides:
"Article 106.- Financing. In order to carry out its functions, the Board shall receive an administrative expense commission arising from the deduction, from each of its insured members, of five per thousand (5 x 1000) of the salaries and pensions of the Scheme under its charge.
With this deduction, a Special Administration Fund shall be established, which must be maintained—both in accounting terms and physically—separately from the Capitalization Fund.
This special fund shall be administered with the utmost prudence and frugality." That being so, as clearly follows from the foregoing, the creation of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial in the terms established in Article 239 of the challenged Ley 9544 was inspired by a similar model already existing in the country; accordingly, it does not represent an experimental legislative creation but rather reflects a justification that this Tribunal finds valid and reasonable, and therefore the arguments raised in this regard by some petitioners must be rejected.
The payment established does not conflict with constitutional law, inasmuch as, as stated above, this parafiscal contribution (contribución parafiscal) falls within those tax burdens (cargas tributarias) that may not exceed 50% of the gross amount of the retirement pensions and pensions to be paid. Put differently, what is relevant is that, as indicated above, the combined total of all burdens on retirees and pensioners may not amount to more than 50% of the pension or retirement benefit. Therefore, insofar as the vital minimum (mínimo vital) is maintained for the individual, the alleged violation does not arise. Furthermore, it must be borne in mind that this five per thousand constitutes the source of financing for the Board created to administer the special scheme, all of which constitutes a benefit for the persons belonging to that special scheme, since to the extent that the special scheme is administered in accordance with technical-actuarial criteria (criterios técnico-actuariales), its long-term sustainability is guaranteed.
To that end, it is necessary to finance the expenses that the JUNTA must incur. No specific data have been provided to demonstrate that the administration of pensions can be carried out for a lesser amount—which would be indispensable for determining whether the provision exceeds the principles of reasonableness and proportionality—and therefore the argument cannot be upheld as presented; however, that item must be weighed against the other burdens, as indicated above.
LII.- Drafted by Justice Hernández López. On acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas) of retired and pensioned judicial employees in relation to the special, solidary, and redistributive contribution (contribución especial, solidaria y redistributiva). Some petitioners also allege that the special, solidary, and redistributive contribution infringes Article 34 of the Constitución Política. They argue that, in accordance with the analysis of the constituent process, patrimonial acquired rights or consolidated legal situations arising from the application of a law in force cannot be undermined by a subsequent law, because the consolidated legal situation has been incorporated into the person's patrimony and affecting it breaches the also constitutional principle of patrimonial intangibility (intangibilidad patrimonial) enshrined in Article 45 of the Constitución Política.
In light of the foregoing, they allege that it is precisely that constitutional prohibition that has been violated by Ley número 9544, since its provisions affect consolidated legal situations to the detriment of retirees and pensioners (jubilados y pensionados) of the Poder Judicial, their acquired patrimonial rights (pensions and retirements currently being paid or previously declared), and consolidated legal situations in the form of pension and retirement benefits protected by Articles 73 and 74. Another group of petitioners argues that acquired rights and consolidated legal situations are also being violated in the case of active employees who, for many years, have been contributing to the Régimen de Jubilaciones y Pensiones del Poder Judicial and who now, when they were closer to retiring, have had the rules of the game abruptly changed to such an extent that, in order to obtain the right to retirement, they will now have to work many more years, reach a higher age, and in return receive a lower retirement benefit (prestación jubilatoria).
The petitioners further state that the introduction of this new item to be deducted from the pensions and retirements of judicial employees represents a novel change in conditions that, they argue, considerably reduces the net amount to be received by beneficiaries, without taking into account that these are persons in a situation of vulnerability.
LIII.- Continued by Justice Hernández López. The Procuraduría General de la República rejects the existence of any injury to Article 34 of the Constitución Política. It argues that the established jurisprudence of the Court is clear and unequivocal that there is no fundamental right to a specific fixed benefit and that the benefit may be modified over time if circumstances so require, provided that the right to retirement is respected, citing judgments 1993-2379 and 1993-3250, in which special contributions imposed within the retirement and pension system of the Magisterio Nacional were analyzed. For its part, the Corte Suprema de Justicia issued a general pronouncement on the special, solidary, and redistributive contribution in the terms already indicated above, to the effect that the pension must meet 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 working person had during their active professional life must be respected.
The President of the Asamblea Legislativa stated that, with respect to the expectation of rights concerning pension or retirement systems, such expectations are subject to the legislation in force and constitutional precedents, it being understood that the modification of a specific system is feasible and does not in itself constitute a constitutional violation.
LIV. Continued by Justice Hernández López. Faced with the petitioners' arguments, the Court considers that no substantive legal grounds have been put forward that would make it necessary to reconsider its extensive jurisprudence, in which it has consistently held that the establishment of special contributions such as the one created by Ley número 9544 does not constitute an infringement of Article 34 of the Constitución Política. As the Procuraduría rightly maintains, Ley número 9544 is not eliminating the right to retirement or to a pension for persons who have already had that right declared and are currently enjoying it; and, in accordance with established jurisprudence, nor can it be said that these persons have an acquired right to the specific amount of the retirement benefit they are receiving. On this point, the Court has been conclusive in holding that there is no right to receive the benefit derived from the right to a pension in a specific amount (see, in that regard, judgment 2020-19274 just mentioned).
Nor is the issue one of petrifying the regulatory rules of the retirement system, as the Court has also acknowledged that it is valid — as necessary and always in compliance with fundamental rights — to make such modifications as are required to adjust the system. In light of the foregoing, the mere fact that the obligation to contribute a special, solidary, and redistributive contribution has been decreed in this case is not considered to infringe any acquired right of retirees or pensioners in the terms alleged. Nor are the legal situations of persons whose right has not yet been declared infringed, since it must be recalled that the so-called right of membership (derecho de pertenencia) that this Court has jurisprudentially identified gives rise, in favor of contributors, to a mere expectation of obtaining the right to retirement, as they have not yet generated consolidated situations or acquired rights at the time the new law enters into force; accordingly, the new law governs the situation as it stands, making it clear that Article 34 of the Constitución Política refers to already-consolidated subjective legal situations, and not to those that constitute mere expectations, since the latter — the right not yet having crystallized — are indisputably subject to future regulatory changes introduced by law. Consequently, on this point, the action is dismissed.
LV.- Drafted by Justice Hernández López. On the special, solidary, and redistributive contribution in relation to the rights of older persons. The petitioners consider that the integrated application of Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial to retired older adults (adultos mayores) and beneficiaries of the Régimen de Jubilaciones y Pensiones del Poder Judicial is abusive and arbitrary, inasmuch as it worsens their socioeconomic conditions and has resulted in an abrupt reduction in their income that violates national and international regulations protecting older adults, their right to quality of life, and their right to enjoy a dignified old age. They consider that the constitutional rights enshrined in Articles 50, 51, and 73 of the Constitución Política are being violated to the detriment of older persons, despite the fact that Article 51 of the Constitución Política has established special protection for them.
They argue that such special protection was embodied, for example, in the Ley Integral para la Persona Adulta Mayor número 7935, whose first article establishes as its objective guaranteeing older persons equal opportunities and a dignified life in all spheres, as well as promoting comprehensive and inter-institutional care for older persons by public and private entities, ensuring the proper functioning of programs and services for this population, and guaranteeing the social protection and security of older persons. They also invoke international instruments that reaffirm this special protection, such as the Protocolo de San Salvador, the Carta de San José sobre los Derechos de las Personas Mayores de América Latina y el Caribe, and, most recently, the Convención Interamericana sobre la Protección de las Personas Adultas Mayores.
LVI.- Continued by Justice Hernández López. In their reports on this point, the parties to these proceedings stated the following: the Corte Suprema de Justicia reiterated the need to protect this group, relying on ILO Recommendation No. 43, to the effect that workers must be guaranteed an old age free from deprivation, that the pension should cover essential needs, and that the amount must be set taking into account the "cost of living and the social situation during the period of professional activity." The Procuraduría General de la República, in its response, does not address this claim specifically, but subsumes it within its position on the validity of the special, solidary, and redistributive contribution, emphasizing that these are additional burdens only for those retirees and pensioners who receive high amounts, with the aim of redistributing the burden of maintaining the fund. The Asamblea Legislativa likewise offered no specific arguments on this point and framed its position within its view on the special, solidary, and redistributive contribution.
LVII.- Continued by Justice Hernández López. This Court addresses this claim by recalling that, as the petitioners note, the protection of older persons forms part of the body of principles that shape a social state governed by the rule of law (estado social de Derecho), such as the one our Constitución Política sought to establish. Along these lines, for example, judgment No. 2007-13584 of 3:15 p.m. on September 19, 2007, stated:
"I.- (…) For its part, this Constitutional Court has held that, in accordance with that provision, the Costa Rican State has a dual duty: first, to create an adequate regulatory framework in order to provide special protection for those groups of persons, which constitutes a genuine fundamental right; and second, to respect and enforce, through the corresponding administrative agencies and courts of justice, such rights. It has likewise been concluded that, from the establishment of the social state governed by the rule of law derivable from the provisions of Articles 50 and following of the Constitución Política, it is possible to extract obligations for public authorities, precisely in the pursuit of the greatest well-being of 'all the country's inhabitants,' among whom the law of the Constitution specifically singles out children, mothers, the elderly, and persons in need. Thus, the social state enshrined in our Constitución Política develops in its normative content a relevant and obligatory state protection and intervention in social matters in favor of those particularly vulnerable sectors of the population that, by virtue of their condition, so require; this is undoubtedly the case — among others — of the elderly, persons of the third age, or older persons." To the foregoing 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, by means of which the aim is to ensure recognition and the full enjoyment, under conditions of equality, of all human rights and fundamental freedoms of older persons (see in that regard judgment number 2018-006290 of 9:20 a.m. on April 20, 2018).
That body of rules provides a superior legal framework from which it falls to the State to take concrete measures to protect this sector of the population, and the Sala, in its case law, has protected the interests and rights of older persons who it has determined to be in a situation of special vulnerability, which is consistent with the policy of the Poder Judicial of prioritizing attention to this population group and providing services with special consideration and preferential treatment (see in a similar vein, among others, judgment number 2007-013584 of 3:15 p.m. on September 19, 2007).
LVIII.- Written by Justice Araya García. Upon analyzing the situation put forward by the petitioners, the Tribunal finds that the design of the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) provided for in Article 236 bis of the Organic Law of the Poder Judicial does not give rise to any infringement of the fundamental rights of older persons, given that a specific percentage is protected as the hard core of the pension (núcleo duro de pensión) that cannot be reduced, as stated by the majority, by a percentage greater than 50%. In prior considerandos, the alleged violations to the set of rules on fundamental rights have been progressively dismissed, since it has been indicated that the rules established in Law No. 9544 to ensure the sustainability of the Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones) of the Poder Judicial do not infringe the right to retirement; likewise, upon analyzing the reasonableness and proportionality of the special contribution, it was concluded that the levy it establishes is reasonable and proportionate given that it applies only to a group of persons who, at the time the law was enacted, were receiving sums higher than the cap set for the appropriate sustainability of the fund.
This levy is likewise progressive, so that within the taxed group, those who receive the highest amounts must contribute more to sustaining the fund. It was also explained above that the specific amounts subject to the special levy, given their high value, leave in the hands of the affected retirees and pensioners a remaining sum with respect to which the petitioners have not managed to demonstrate—not even by way of indication—its manifest insufficiency to provide economic support for a dignified life and for the enjoyment of the human rights constituting the entitlements of older persons, all the more so taking into account that precisely in response to constitutional and conventional obligations, the State—in a broad sense—has been building a support structure in various areas to ensure not only for retirees but for all older persons precisely that dignity in old age. In conclusion, as stated, no concrete infringement of the possibilities of effective enjoyment of fundamental rights or of the possibility of living a dignified life, recognized in favor of older persons by regulatory instruments of various ranks and by the case law of the Sala, has been demonstrated; and consequently, the action must also be declared without merit on this point.
D. CLAIMS RELATING TO CHAPTER IV ENTITLED "ADMINISTRATION" OF TITLE IX "RÉGIMEN DE JUBILACIONES Y PENSIONES DEL PODER JUDICIAL" OF THE ORGANIC LAW OF THE PODER JUDICIAL LIX.- Written by Justice Hernández López. General observations on Chapter IV entitled "Administration" following the amendments made by Law No. 9544. Law No. 9544 amended Chapter IV of Title IX of the Organic Law of the Poder Judicial, which now consists of 5 articles running from 239 to 242, including an Article 240 bis. Those provisions entrust the administration of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Poder Judicial to an Administrative Board of the Fund (Junta Administrativa del Fondo), which will be responsible for carrying out that function as well as other functions assigned to it by this law. This chapter sets out the functions, powers, and obligations of this new body, as well as matters relating to the role to be played by the Superintendency of Pensions (Superintendencia de Pensiones, SUPEN) and the National Council for Financial System Supervision (Consejo Nacional de Supervisión del Sistema Financiero, CONASSIF) in relation to that body.
With regard to this chapter, the petitioners raise various aspects that they consider to be in violation of constitutional law, and which are specifically directed at Article 239 as it relates to the creation of the Administrative Board. As to the majority of such claims, this Tribunal refers to what was said when analyzing the objections regarding the legislative procedure, since they concern an alleged infringement of constitutional competencies and the autonomy of the Corte Suprema de Justicia as one of the supreme powers of the Republic. There remains, however, a substantive issue that is analyzed below.
LX.- Written by Justice Hernández López. On the claim of infringement of the principle of statutory reservation (reserva legal) as it pertains to certain attributions of the Administrative Board of the Retirement and Pension Fund of the Poder Judicial. The petitioners argue that Article 239 of the Organic Law of the Poder Judicial, as amended by Law No. 9544, assigns competencies to the Administrative Board of the Fund that violate the principle of statutory reservation. As relevant, the text of that provision states:
"Article 239— The Administrative Board of the Retirement and Pension Fund of the Poder Judicial is hereby created as a body of the Poder Judicial, which shall enjoy complete functional, technical, and administrative independence in the exercise of the powers and attributions granted to it by law.
(…)
Based on the results of actuarial studies (estudios actuariales) and with authorization from SUPEN, the Administrative Board may modify the initial parameters established in this law with respect to eligibility requirements (requisitos de elegibilidad), the benefits structure (perfil de beneficios), as well as the contributions and dues (aportes y cotizaciones) of judicial officers and of the retirements and pensions provided for in the law, whenever this is necessary to guarantee the actuarial balance (equilibrio actuarial) of the Regime." (underlining not in the original) It is claimed that, in light of the statutory text, the Administrative Board will be able to make decisions without legal parameters, decisions that may directly affect the exercise of fundamental rights, such that there is a violation of the principle of statutory reservation. In its report, the Procuraduría notes that, indeed, the legal regime governing the exercise of fundamental rights may only be modified by the Asamblea Legislativa pursuant to the aforementioned principle of statutory reservation.
It states that the cited provision admits of an interpretation consistent with the Constitución Política to the effect that the changes the Administrative Board may make are those carried out within the parameters established by the legislature. The Corte Suprema de Justicia made no specific pronouncement on the matter, but noted that the Administrative Board is an atypical entity that subjects the Corte Suprema to an adjustment in its functioning in order to be able to ensure the Board's proper operation.
LXI.- Continuing, written by Justice Hernández López. On this point, this Sala notes that the principle of statutory reservation must indeed be respected when the State seeks to establish a limitation on the fundamental rights recognized in favor of persons. This principle is in itself of fundamental importance for the constitution of a democratic regime, as has been widely recognized in the case law of the Tribunal (see, among many others, judgments 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 Tribunal has also held that the principle of statutory reservation not only guarantees freedom vis-à-vis other citizens, but also constitutes a safeguard of control over public power, since precisely the regulatory treatment of an activity that affects a multiplicity of fundamental rights requires a normative framework of statutory rank, such that fundamental rights cannot be removed from the public debate that takes place in the Asamblea Legislativa, given that the Public Administration lacks the legitimacy to regulate the exercise of fundamental rights—a principle reflected in the General Law of Public Administration (Ley General de la Administración Pública) where it states that "The legal regime of fundamental rights shall be reserved to statute, without prejudice to the corresponding Executive Regulations." When reviewing, against that legal framework, the powers granted in the disputed paragraph of Article 239 of the Organic Law of the Judicial Branch, the Court finds that what is set forth therein contravenes the principle of statutory reserve (reserva de ley) and is therefore unconstitutional.
It should be noted that, in addition to its function of administering the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), the Board will hold powers to modify virtually all the parameters established by law, namely: the eligibility requirements, the benefit profile, and the contribution percentages applicable to judicial employees and to the retirements and pensions provided for by law. There is no dispute in these proceedings regarding the fact that the activities described directly affect the manner in which beneficiaries enjoy their constitutional right to retirement. In particular, the Court finds unacceptable the modification, by means of a Board resolution, of the eligibility requirements and the benefit profile, which undoubtedly form a fundamental part of the retirement right that the legislative intervention through the reform seeks to guarantee.
Nor is there any need, in this case, to elaborate on the validity and possibility of the legislature delegating to the Board—through the establishment of margins—the modification of the essential elements of the scheme, because the plain and evident fact is that the challenged Law No. 9544 did not provide for any such mechanism in the statutory text; on the contrary, matters such as the eligibility conditions, the benefit profile, and the charges applicable to Fund participants were established with precision and without options, so that the fact that the very same legislative reform empowered the Legislative Assembly to allow their modification without reference to minimums or maximums and based solely on the Board's own assessments of actuarial studies is openly unconstitutional. It must not be forgotten that—as explained above—such legislative determinations regulate the exercise of a constitutional right, namely the retirement right of working persons, so that an unrestricted delegation to an administrative body that would allow it—when necessary—to nullify existing statutory provisions falls outside the powers of the Legislative Assembly and disregards its constitutional obligations arising from the due observance of the principle of statutory reserve.
For the foregoing reasons, the position advanced by the Procuraduría (Attorney General's Office), which proposes a conforming interpretation, is untenable, since in this case there are no determination margins that the Legislature has established and within which the Board could exercise its attributed powers. The necessary conclusion from the foregoing is that a constitutional violation exists by entrusting to an administrative body the determination of the conditions and modalities for the exercise of the constitutional right to retirement; accordingly, the paragraph of Article 239 of the Organic Law of the Judicial Branch that reads as follows must be struck down as unconstitutional: "Based on the results of the actuarial studies, and with authorization from the Superintendencia de Pensiones, the Junta Administrativa may modify the initial parameters established in this law with respect to the eligibility requirements, the benefit profile, as well as the contributions and quotas of judicial employees and the retirements and pensions provided for by law, provided that this is necessary to guarantee the actuarial balance of the Scheme." E. CLAIMS RELATING TO THE TRANSITIONAL PROVISIONS CONTAINED IN LAW NO. 9544.
LXII.- Drafted by Justice Hernández López. Description of the transitional provisions included in Law No. 9544. The reform introduced by Law No. 9544 contains 6 transitional provisions: Transitional I and Transitional III concern, respectively, the deadlines by which the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial should be constituted and the General Regulations of the Judicial Branch Retirement and Pension Scheme should be issued. Transitional provision No. IV clarifies that the resources corresponding to employee, employer, and State contributions that, as of the date of entry into force of Law No. 9544, were being administered by the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), together with the yields and other benefits those resources have generated, shall continue to form part of that Fund. Transitional V provides that credit transactions using resources from the Judicial Branch Retirement and Pension Fund that had been agreed upon by the Superior Council prior to the Law shall remain in force until their maturity and shall not be eligible for renewal. Transitional provisions II and VI are the ones challenged in this action of unconstitutionality and will be analyzed below.
LXIII.- Drafted by Justice Hernández López. On the challenge to Transitional II of Law No. 9544. Transitional provision II of Law No. 9544 provides as follows:
"TRANSITORIO II— Officials of the Tribunal Supremo de Elecciones referred to in Article 242 of Ley N° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, who have made contributions to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, shall not have this reform applied to their detriment, and their vested rights in good faith (derechos adquiridos de buena fe) shall be respected at all times. Nevertheless, they are empowered to request, under the terms set forth in Articles 226 and 234 of this law, the reimbursement of the employee, 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 Scheme (Régimen de Pensiones, Invalidez, Vejez y Muerte) administered by the Caja Costarricense de Seguro Social (CCSS), if they so wish." The petitioners argue that a discriminatory treatment exists to the detriment of judicial employees with respect to the treatment of vested rights as compared with officials of the Tribunal Supremo de Elecciones who contribute to the Judicial Branch Retirement and Pension Scheme.
They contrast the different treatment afforded by the legislature regarding vested rights, since, without any objective justification, a differentiated and more favorable treatment was established for those employees who, while belonging to the Judicial Branch Retirement and Pension Scheme, work for the Tribunal Supremo de Elecciones; those employees were granted an unrestricted right to remain in that scheme but under the repealed rules, regardless of how long it might take them to fulfill those requirements. It is argued that the transitional provision is entirely discriminatory in that it distinguishes among members of the Judicial Branch Retirement and Pension Scheme—some of whom work for the Judicial Branch and others for the Tribunal Supremo de Elecciones—with the result that the latter group enjoys greater benefits than the former. With respect to that differentiation, the petitioners question the necessity of this distinction and accordingly request that Transitional II of Law No. 9544 be declared unconstitutional for violation of the principle of equality and non-discrimination set forth in Article 33 of the Political Constitution. On this specific point, no position has been taken by the reporting authorities in this action.
LXIV.- Continued by Justice Hernández López. The question raised here was reviewed by the Court in connection with the optional legislative consultation submitted at the time by members of the Legislative Assembly regarding the bill that gave rise to Law No. 9544. In judgment 2018-5758, which responded to that consultation, the Court stated the following:
"XX.— On Transitional II of the consulted bill. Finally, the consulting parties consider that Transitional II of the consulted bill is contrary to Article 33 of the Constitution, insofar as it establishes a privilege for officials of the Tribunal Supremo de Elecciones. That provision reads as follows:
TRANSITORIO II— Officials of the Tribunal Supremo de Elecciones referred to in Article 242 of Ley N.° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its amendments, who have made contributions to the Judicial Branch Retirement and Pension Fund prior to the entry into force of this law, shall not have this reform applied to their detriment, and their vested rights in good faith shall be respected at all times. Nevertheless, they are empowered to request, under the terms set forth in Articles 226 and 234 of this law, the reimbursement of the employee, 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 Scheme administered by the Caja Costarricense de Seguro Social (CCSS), if they so wish.
Before analyzing the alleged defect, the Court finds it necessary to refer to the concepts of vested rights and consolidated legal situations (situaciones jurídicas consolidadas). On this matter, in judgment No. 2765-97 of 15:03 hours of May 20, 1997, the Court ruled, in the relevant part, as follows:
"The concepts of 'vested rights' and 'consolidated legal situations' are closely related in constitutional doctrine. It may be said that, in general terms, the first denotes a circumstance that has been consummated in that something—material or immaterial, whether a previously belonging asset or a previously nonexistent right—has entered (or had an impact on) the patrimonial sphere of the person, so that the person experiences a demonstrable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial plus as a state of affairs fully defined in terms of its legal characteristics and its effects, even if those effects have not yet been extinguished. What is relevant with regard to the consolidated legal situation is precisely not whether those effects still endure or not, but rather that—by virtue of a statutory mandate or a judgment that has so declared—a clear and definite rule has already come into existence that connects a factual premise (conditioning fact) with a given consequence (conditioned effect).
From this perspective, the person's situation is governed 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 (vested 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." Now, from the examination of the challenged provision, it is clear that it does not exhibit the alleged defect, because, contrary to what the petitioners appear to understand, the provision does not seek to create a differentiated situation in favor of the officials of the Tribunal Supremo de Elecciones with respect to the other contributors to the Fund, but only to protect those rights acquired in good faith.
In that regard, the transitional provision does not in any way establish that the reform made to the Retirement and Pension Regime (Régimen de Pensiones y Jubilaciones) of the Poder Judicial does not apply to the officials to whom it refers, since they too will be affected by it — as evidenced by the very fact that the article itself grants them the option of transferring to the Disability, Old-Age, and Death Pension Regime (Régimen de Pensiones, Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social, should they so wish. In light of the foregoing, the Court rules out the possibility that the challenged provision grants the employees of the Tribunal Supremo de Elecciones an acquired right to remain under the current conditions of the Retirement and Pension Regime of the Poder Judicial, and accordingly dismisses the petitioners' argument." (2018-5758 of April 12, 2018) On this occasion, those bringing the claim represent a large number of the participants in the Fondo de Jubilaciones y Pensiones del Poder Judicial and provide reasons and arguments to support their position that, contrary to what the Court understood at the time, the text does in fact create a different treatment that warrants re-examination, on the ground that it contravenes the principle of equality.
LXV.- Drafted by Justice Hernández López. On Transitional Provision II of Ley 9544 and the principles of equality and non-discrimination. As an initial important element in support of this decision, it is necessary to bear in mind what Article 242 of Ley Orgánica del Poder Judicial number 7333 provided prior to its amendment, since the challenged Transitional Provision II refers to that article:
"ARTICLE 242.- The Justices of the Tribunal Supremo de Elecciones and the Director of the Registro Civil who, prior to their appointment, served as judicial attorney-employees (abogados funcionarios judiciales) with more than five years of service may remain covered under the Retirement and Pension Plan (Plan de Jubilaciones y Pensiones) of this Law, and the time they serve in those bodies shall be counted as if it had been served in the Poder Judicial. Such officials shall continue contributing in the manner required by Article 236 of this Law. Said Justices shall enjoy the same benefits as the Justices of the Corte Suprema de Justicia, and the Director of the Registro, the benefits provided for judges, under equal circumstances. The State, in those cases, must pay on behalf of those officials the contribution specified in subparagraph 2 of the cited Article 236, calculated on the amount allocated in the general expenditure budget to cover their salaries at the Tribunal Supremo de Elecciones and the Registro Civil.
This contribution shall be deposited as indicated in the said subparagraph 2." A review of the legislative history shows that this provision was included in the comprehensive 1993 reform of the Ley Orgánica del Poder Judicial and established an exception for those judicial attorney-employees who, having at least five years of service in the Poder Judicial and having contributed to the Poder Judicial retirement and pension regime, were appointed as Justices of the Tribunal Supremo de Elecciones or to the position of Director of the Registro Civil. That exception consisted of opening the option for the aforementioned public servants to remain as participants in the Retirement and Pension Regime of the Poder Judicial — to which they had been contributing for at least five years — provided they continued paying their corresponding contribution, and it was established that they would enjoy the same benefits as the Justices of the Poder Judicial and, in the case of the Director of the Registro Civil, those of a judge.
The State was also required to budget and deposit the corresponding contributions, calculated on the salaries received at the Tribunal Supremo de Elecciones. It follows from that text that those who at the time chose to remain as participants in the Poder Judicial regime did so under the same terms and conditions as all 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, with regard to the benefits of the regime, it was ordered that: "Said Justices shall enjoy the same benefits as the Justices of the Corte Suprema de Justicia, and the Director of the Registro, the benefits provided for judges, under equal circumstances." Now, upon enactment of Ley número 9544, which extensively amended the Retirement and Pension Regime of the Poder Judicial, the Legislature, among other things, increased participants' contribution burdens and reduced the benefits to be received, all in the interest of the regime's financial sustainability.
A Transitional Provision II was also introduced, which keeps open the option granted in 1993 for the above-mentioned employees to transfer their contributions to the Disability, Old-Age, and Death Regime of the Caja Costarricense del Seguro Social, or alternatively to remain as participants in the Poder Judicial regime; however, should they choose to remain as participants in the Fondo del Poder Judicial, an additional condition is added that does not exist for the other participants in the Fund — namely, that they would have in their favor the fact that: "the present reform shall not be applied to their detriment and their rights acquired in good faith shall be respected at all times." It is in this last point that the petitioners identify a discriminatory provision, arguing that for them, as judicial employees, the applicable rule is Transitional Provision VI of Ley número 9544, which defines the situation of active judicial employees who have been contributing to the Fund and which distinguishes between those who are covered by the repealed law (that is, those to whom the new legislation will not be applied to their detriment) and those to whom the new legislation will apply without mitigation:
"TRANSITIONAL PROVISION 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.º 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the provisions set forth in the aforementioned text." From the foregoing it follows that — for the purpose of determining the applicable law — two separate categories of active Fund participants were created: one composed of judicial employees who "meet the requirements to acquire the right to a pension as established in the text of Title IX of Ley N.º 7333, of May 5, 1993, within the eighteen months following the promulgation of this law" and who may retire under the requirements of the prior regime, and the other composed of the remaining judicial employees who do not meet that condition, to whom the new legislation applies. However, the petitioners contend, the employees mentioned in Article 242 of the repealed Law who choose to remain in the Retirement and Pension Regime of the Poder Judicial will receive different treatment, as they have been placed in a third, distinct category reflected in the phrase of Transitional Provision II of Ley número 9544: "the present reform shall not be applied to their detriment and their rights acquired in good faith shall be respected at all times." LXVI.- Continues drafted by Justice Hernández López.
In the terms set out above, the Court concludes that the provision is not necessarily unconstitutional, but it is ambiguous and must therefore be interpreted in accordance with the precedent established by the Court in judgment number 2018-5758, since in that decision the Tribunal held that no difference in treatment in favor of the employees mentioned in Article 242 of the Ley Orgánica del Poder Judicial could be permitted, given that:
"…contrary to what the petitioners appear to understand, the provision does not seek to create a differentiated situation in favor of the officials of the Tribunal Supremo de Elecciones with respect to the other contributors to the Fund, but only to protect those rights acquired in good faith. In that regard, the transitional provision does not in any way establish that the reform made to the Retirement and Pension Regime of the Poder Judicial does not apply to the officials to whom it refers, since they too will be affected by it — as evidenced by the very fact that the article itself grants them the option of transferring to the Disability, Old-Age, and Death Pension Regime of the Caja Costarricense de Seguro Social, should they so wish." (Cited judgment number 2018-5758) Accordingly, the majority of this Tribunal agrees that the correct interpretation of the phrase "this reform shall not be applied" leads to the understanding that it refers to persons who have already consolidated their right to retirement or pension, but not to active employees who have not yet met the retirement requirements, since the reforms introduced by the challenged law apply to the latter in their full extent — and therefore persons falling within this last category are in the same position as active workers of the Poder Judicial, so 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 Transitional Provision II is not constitutionally illegitimate or contrary to the principle of equality, if that expression is understood in the context and with the meaning described in the relevant considerando of judgment 2018-5758 — that is, that the employees mentioned in the disputed Transitional Provision II enjoy acquired rights as participants in the Fondo de Jubilaciones y Pensiones del Poder Judicial, but with the same scope and on an equal footing with the other participants who work directly for the Poder Judicial. Therefore, the mere statement that the rights acquired by the employees mentioned in the disputed Transitional Provision II will be respected has not created a different category as compared to the other Fund participants, because as a constitutional imperative, all participants without exception — depending on the circumstances, and even if not expressly stated — are entitled to have their acquired rights respected under the terms and conditions that this Tribunal has set out through its case law in pension matters.
In that specific sense, the mere abstract reference to the protection of acquired rights for one group of participants does not entail any actual change in their rights and obligations that would distinguish them from the other participants, as was explained in legislative consultation 2018-5758.
LXVII.- Drafted by Justice Castillo Víquez. On the challenge to Transitional Provision VI of Ley número 9544. As explained above, the other transitional provision of Ley número 9544 that the petitioners challenge is Transitional Provision VI, which provides:
"TRANSITIONAL PROVISION VI.- Judicial employees who meet the requirements to acquire the right to a pension as established in the text of Title IX of Ley No. 7333, of May 5, 1993, within the eighteen months following the promulgation of this law, may retire under the provisions set forth in the aforementioned text." The petitioners argue that the provision is disproportionate and arbitrary, and that the 18-month period was at some point established by the Court and has now been adopted by the legislature without any technical study to justify it. They consider that established rights (derechos consolidados) and vested rights (derechos adquiridos) are being harmed, and maintain that legal certainty (seguridad jurídica) is violated and trust in the system is undermined; that it harms people's legitimate expectations and the life plans (proyecto de vida) of those who were close to retirement, and that it harms solidarity, which is a principle related to social security (seguridad social).
They also consider that it contradicts Article 224 of the same law, since that article recognizes a vested right for employees with 20 or more years of service in the Poder Judicial, whereas this transitional provision does not recognize that period for workers with more than 20 years of service and instead grants it only to those who have 28 years and 6 months at the time the law enters into force. The Procuraduría noted that the right to enjoy retirement is acquired when all the requirements set forth in the regulations are met, and that prior to that there is merely a legal expectation (expectativa de derecho) that cannot be equated to a consolidated legal situation (situación jurídica consolidada). It is argued that the Court has held that an 18-month period is sufficient so that the modification of conditions does not affect the person subject to administrative authority (administrado) who fulfills the requirements within that period, and that the misnamed right of membership (derecho de pertenencia) amounts to nothing more than a mere expectation that applies exclusively to those who manage to meet the requirements within the 18 months.
Transitorio VI implies that the changes were neither untimely nor sudden. The Asamblea Legislativa indicates that, in the case of expectations of rights relating to pension or retirement schemes (régimen de pensiones o jubilaciones), those concerned must abide by the legislation in force and constitutional precedents, understanding that the modification of a specific scheme is feasible and does not in itself constitute a constitutional violation. The period granted responds to the parameters required to guarantee the eventual rights of persons who meet the requirements set forth in the regulations, and to ensure that no abrupt modification of the rule is made. The Corte Suprema de Justicia stated that in its responses to the Asamblea it always expressed the need for a gradual approach in implementing the regulatory change in order to respect the valid expectations of persons with more years of service.
LXVIII.- Magistrado Castillo Víquez continues drafting. The question of the possible unconstitutionality of Transitorio VI of Ley 9544 under challenge was also analyzed as part of the response given to the Asamblea Legislativa on the occasion of the consultation made regarding then-bill number 19922 reforming the Jubilaciones y Pensiones del Poder Judicial. In judgment number 2018-5758, cited on many occasions, the Court stated:
"XVII.- On changes to the requirements for obtaining the right to a pension. The consulting parties consider that Article 224 of the bill violates the principles of proportionality and reasonableness because the retirement age and the number of years the employee must work are increased, while the percentage of money to be received as a pension relative to the salary earned is reduced. They likewise challenge Transitorio VI of the bill, which provides that only those persons who are within 18 months of fulfilling the requirements to acquire the right to a pension (pensión) may do so under the provisions established by Ley N° 7333. The challenged provisions read as follows:" Article 224 — Judicial employees (servidores judiciales) with twenty or more years of service in the Poder Judicial may take an ordinary retirement pension (jubilación ordinaria) equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned during their working life, adjusted according to the Consumer Price Index (IPC) as defined by the Instituto Nacional de Estadística y Censos (INEC), provided they have reached the age of sixty-five and have worked at least thirty-five years.
TRANSITORIO VI — Judicial employees who fulfill the requirements for acquiring 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 the present law, may retire under the provisions established in that text.
Before entering into an analysis of the merits of the argument raised, it must be borne in mind that the right to a retirement pension (jubilación) constitutes the economic benefit obtained after working and contributing to a given scheme for a specified 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. This right, which derives from constitutional numeral 73, is obtained from the moment the person fulfills all the requirements established by the legislation in force, since at that moment the factual situation provided by the rule for the granting of the benefit occurs. It should be noted that the right to a retirement pension is not unrestricted, as it may be subject to certain limitations, provided these are established by formal law, are reasonable, and do not affect its essential content. Thus, the Court has maintained that the legislature has the power to establish restrictions on the right to a retirement pension when it can be shown that certain situations exist that put the sustainability of a scheme at risk and thereby threaten the nature of the system as such. On this point, in vote number 2379-96 of 11:06 on May 17, 1996, the following was established: [...]
Furthermore, the Court has also maintained that there is a substantial difference between the right of membership (derecho de pertenencia) in a given pension scheme (régimen de pensiones) and the specific right to enjoy a pension. On this point, in vote number 98-6491 of 9:45 on September 10, 1998, the following was set forth:
"In this regard, it is necessary to observe that this right ceases to be a mere expectation and is acquired from the moment one enters the retirement scheme, at least as a general right of membership in it, and from the instant the beneficiary finds themselves in the factual conditions provided for receiving the benefit, as a right to the current benefit, without it being necessary to have claimed it, much less to have had the recognition declared or to have begun receiving it... in the same way that the right to an inheritance is acquired at the moment of the death of the deceased, not at the opening of the succession proceeding, nor, much less, at the adjudication of the hereditary right or the delivery of the assets to the heir." (judgment Nº1147-90 of 16:00 hours on September 21, 1990).
I.In the first case, the right of membership in a retirement scheme is more abstract in nature and consists, in essence, in the right for the pension scheme belonging to the institution where one works to remain in place, along with its defining elements or conditions. The right to belong to the scheme means the right not to be excluded, and for its general parameters to be maintained, such as, for example, that the contribution be tripartite — a condition which, incidentally, in similar proportions is itself a constitutional right, without prejudice to the state contribution being equal across all schemes. By its characteristics, this right is acquired upon mere entry into the scheme; however, as already stated, its consequences are far more restricted than those that will be set out for the case of the specific right to a pension.
II.The specific right to enjoy retirement is the one that has traditionally been used as an example to explain the concept of a vested right. In those same terms, it was always considered to arise at the moment the worker fulfilled the requirements demanded by the law in force at that time to access the retirement benefit. A consequence of this reasoning and of the distinction in degree that has been made is that indicated in resolution number 6124-93 of 14:30 hours on November 23, 1993:
"As regards the effective enjoyment thereof, it is a right that cannot be limited, conditioned, or suppressed in any irrational manner whatsoever once it has been acquired as such, thereby becoming an absolute right of enjoyment. However, the same does not apply to the expectation of workers who contribute (cotizan) to a given scheme, in such a way that it is only upon fulfilling all the legal prerequisites — age, years of paying contributions, amount, etc. — that such right is obtained.
Thus, membership in a particular pension or retirement scheme is acquired from the moment one begins contributing to that scheme, but the specific right to retirement is acquired when the interested party fulfills all the prerequisites established by law, and not before, as the petitioners claim when they consider that the modification of the conditions for obtaining this right is unconstitutional. The petitioners hold a right of membership in a pension scheme, which in this case is the Hacienda scheme (régimen de Hacienda), since what the challenged regulation — the Ley Marco de Pensiones, number 7302 — did was to unify the various existing schemes and create a 'common framework,' without in any way altering the pension membership scheme of public employees. Indeed, it is recognized that such schemes are regulated by law, which can be modified or repealed by another law, and to claim that the prerequisites can never be modified would imply creating a limitation on each existing pension and retirement scheme, which has constitutional rank as regards its creation in general, but not as regards its specific details. (In the same vein, see rulings number 1341-93, of 10:30 hours on March 29, 1993, and 3063-95 of 15:30 hours on June 13, 1995).
From the foregoing, it is clear that the right to retirement may be subject to limitations, just like any other fundamental right. This implies that no person has a right to retire under specific conditions, since those conditions may be varied whenever necessary to guarantee the existence of a given pension and retirement system (régimen de pensiones y jubilaciones); for if it were otherwise, conditions could be created that render the system financially unsustainable, which would ultimately result in the right to retirement being severely impaired, or its exercise becoming altogether impossible due to the absence of funds preventing payment of the retirement benefit to the interested party. In view of that situation, the Court considers that the challenged provisions are not unconstitutional, insofar as their purpose is precisely to guarantee the continued existence of the Pension and Retirement System (Régimen de Pensiones y Jubilaciones) of the Poder Judicial, for which reason parameters and requirements were established based on the opinions of experts heard by the Special Committee that issued its report on legislative file number 19.922, as well as on technical studies that confirmed the existence of a problem capable of affecting the sustainability of the aforementioned System, and for which they issued a series of recommendations.
Accordingly, having verified that the variation in requirements set forth in numeral 224 and the time period established by transitory provision VI of the bill of law have as their ultimate purpose the guarantee of the retirement right of judicial employees (servidores/as judiciales), the Court dismisses the alleged defect." LXIX.- Justice Castillo Víquez continues drafting. In the foregoing citation, this Tribunal addressed precisely the claim that the petitioners now reiterate regarding the reasonableness and proportionality of transitory provision VI insofar as it set an 18-month period to meet the requirements and retire or receive a pension under the repealed system. The basis of the reasoning on that occasion rested on the distinction between the right to the actual enjoyment of retirement—which is acquired only upon fulfillment of the established requirements—and the right of membership (derecho de pertenencia) held by participants in the system who have not yet met the requirements, which constitutes no more than an expectation with respect to the conditions of enjoyment as established.
For this reason, changes made to the structure of the system may be applied to all those who hold only a right of membership, provided that such a decision is justified in light of the purpose and objectives of the system and of the proposed amendments—that is, provided it appears reasonable and proportionate. On this last point, it is deemed appropriate to reinforce the arguments advanced by this Court at the time, since the petitioners insist on challenging that transition period on the ground that 18 months is an unreasonable, arbitrary, and unjust time frame for a number of people who, by days or weeks, were left outside the possibility of retiring despite having a substantial number of years of service or having reached retirement age.
In this context, the majority of the Court begins by emphasizing the fact that the establishment of 18 months as the transition period finds its basis in the specific case law of this Tribunal on the subject of changes to pension systems (regímenes previsionales), as has been held—among others—in judgment number 1993-5476 of 18:03 hours on October 27, 1993, which addressed the claim of a person who alleged acquired rights (derechos adquiridos) to retire under the rules of a repealed system. In its decision, the Court explained on the specific subject:
"II. (…) Within this framework, it is important to note that the specific conditions of the system, including the age and length-of-service requirements, may vary in the future and may affect those beneficiaries who are more than 18 months away from fulfilling the requirements of the provision being amended; however, their right to belong to the system and to retire under the same general conditions of the system cannot be modified, as it has vested as an acquired right. The 18-month period, during which the modification of the specific conditions of the system cannot affect the individual who had projected fulfilling the requirements to receive a pension within that period, has been reiterated by the Court in several of its rulings, with the purpose of protecting the beneficiary of a given pension system from abrupt changes in the specific requirements necessary to obtain formal recognition of the retirement benefit; changes that may worsen the conditions for obtaining the pension at a time when the interested party was only a few months away from acquiring the concrete right to the benefit under the amended provision." (emphasis not in the original) Thus, by providing for the application of the prior system to those who would meet the requirements within 18 months, the legislature was guided by the position of this Tribunal on the specific question of the appropriate period for balancing the need to reform and update retirement and pension systems against the necessary protection of a certain group of contributors from "…abrupt changes in the specific requirements necessary to obtain formal recognition of the retirement benefit; changes that may worsen the conditions for obtaining the pension at a time when the interested party was only a few months away from acquiring the concrete right to the benefit under the amended provision," in the Tribunal's own words.
This weighs in favor of the constitutional validity of the measure adopted by the legislature, so that a declaration of unconstitutionality in this case would require the submission of grounds capable of demonstrating the absence of proportionality and reasonableness in applying the 18-month period established by constitutional case law—measured from the entry into force of the reform—for the extension of the coverage of the prior pension system.
In the specific case at hand, however, the petitioners fail to fulfill the task described above; indeed, the characteristics of the reform point toward sustaining the legislature's actions, since, in the first place, the Court has weighed the magnitude of the changes that occurred with respect to the eligibility conditions, concluding that their variation not only has a technical basis in actuarial schemes (esquemas actuariales), as was explained when addressing that question, but also that the changes introduced do not represent—in general terms—an extremely abrupt or sweeping change from what was previously required. Take, for example, the case of an ordinary retirement by a contributor who has worked exclusively in the Poder Judicial, where it can be seen that in order to retire ordinarily under the new system, an employee who entered service between the ages of 18 and 30 must work 3 additional years compared to the prior system, whereas for an entry age above 30 years, the required period of active employment increases by 5 years relative to the prior retirement system.
A similar situation is observed for the general cases of early retirement, a comparison of which allows the conclusion that, in the vast majority of cases, the required period of active employment increases by 5 years relative to the prior retirement system; the Court finds only one exception in the case of early retirement based on years of service, given that the prior regulations contained no minimum retirement age, whereas the new system requires a minimum age of 60 for women and 62 for men—a case in which, while the changes may exceed 7 years, it is no less true that the minimum thresholds (60 and 62 years for women and men, respectively) do not in themselves represent an excessive requirement in terms of human dignity and effort. In sum, from all the foregoing data the Tribunal concludes that the change effected in the eligibility requirements is not disproportionate as alleged by the petitioners, and therefore did not constitutionally necessitate a transition arrangement different from the one chosen by the legislature.
Added to the foregoing is the fact that, contrary to what is maintained 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 reform under discussion. 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 drawn), it is specified that the sustainability calculations include the assumption that the amendments would be applied generally to all contributors, excluding only those who had more than 28 years of service as of the date of entry into force of the change. This can be confirmed from the presentations and documents submitted to the legislative file and visible at folios 2218 and 2230, so that the final legislative decision to recognize, exclusively for contributors with 28 and a half years of service, the possibility of retiring under the prior system, did in fact form part of the necessary technical requirements that were taken into account in designing the amendments that would provide the financial underpinning for the Jubilaciones y Pensiones del Poder Judicial system.
Likewise, the 18-month period was broadly supported by the technical opinion, not only for reasons of legal certainty (seguridad jurídica) in accordance with constitutional case law, but also for actuarial solvency reasons. Thus, in his appearance, the Superintendent of Pensions, Dr. Alvaro Ramos (see folio 1691 et seq. of the legislative file), referred to the need to establish an 18-month transition period in compliance with constitutional case law (see folio 1711). The Procuraduría General de la República (folio 2115) and the Universidad de Costa Rica (folios 2264, 2265, and 2942 et seq.) expressed themselves in the same vein, stating:
"The last frameworks recommended here, frameworks 3 and 4, contemplate exclusively what you have indicated—18 months." (Dr. Max Soto Jiménez) Basically, with respect to the IICE's specific frameworks, an effort was made to model as closely as possible to eighteen months. To be honest with you, at the modeling level it will be two years. In other words, for those with 28 or more years of seniority, the mathematical model assumed that a transition provision would be respected for them—meaning it was not measured in a completely precise manner, but that is due to the modeling itself of the life probabilities, which are held at certain values rather than for each half-year, and there are reasons for that.
If one is theoretical, one could spend half a year on that, but to answer your question, it was stimulated as closely as possible, and the simulation assumed that all those with more than twenty-eight years of seniority would have their right respected to maintain their pension under the current system.
That is what you see there when it says "participation with years of service greater than or equal to twenty-eight." At the level of translating it into regulations, what I would recommend—and what we recommend—is to put it to a vote at eighteen months, as the Sala Constitucional 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 right? Perfect.
Dr. Max Soto Jiménez: "Those who retire within the following eighteen months shall retain the rights provided under the current law:" (…)
"logically, a transitional period exceeding 18 months negatively affects the actuarial solvency of the fund" (folio 2945) On another aspect related to this subject, some of the petitioners have alleged a violation of Convention 157 of the International Labour Organization. In this regard, it must first be noted that said instrument has not been ratified by our country, and therefore its value as a standard of review for this Court will depend on whether its text establishes clear and specific guidelines — validated by a substantial number of States — regarding the specific matter under consideration here, namely, guidance for protecting rights "in the process of being acquired." However, the text of the convention contains no provision that would allow the Court to conclude that the Costa Rican State has acted contrary to the international trend in the protection of human rights, given that the aforementioned instrument is limited to regulating the conditions under which States may grant recognition and protection to workers who, for various reasons, have accumulated rights under the legislation of multiple States. The foregoing is not applicable to the present case, and accordingly this claim must be rejected.
Finally, some of the petitioners have invoked, in connection with this specific claim, an alleged violation of the American Convention on Human Rights, arguing that the Inter-American Court of Human Rights, as interpreter of that instrument, has established the minimum conditions required of States with respect to the right to social security within the inter-American human rights system. The interested parties maintain that in the case "Muelle Flores v. Peru" certain guidelines were established that are contradicted by the enactment of Ley 9544 in general and, in particular, by transitional provision VI, which affects the conventional rights of persons with fewer than 28 years and six months of service as of the date on which the reform entered into force. On this point, the Court's review of the text of the cited decision leads it to conclude that said judgment contains elements relevant to the interpretation of the fundamental right to social security, but that those elements are neither relevant nor pertinent to the resolution of this claim or of this proceeding in general.
In the referenced judgment, the Inter-American Court of Human Rights resolved the case of a person who had already retired and whose periodic pension payments had been discontinued due to the privatization of the public enterprise responsible for making those payments. The case was made even more serious by the fact that the petitioner had obtained, before the Peruvian courts, at least two final judgments in his favor; nevertheless, at the time he filed his complaint before the international judicial body, he had not succeeded in having the effective resumption of his pension payments enforced. The Inter-American Court of Human Rights set out the essential factual background of the case as follows:
"191. (…(T)he Court notes that the present case does not concern the obligations of progressivity derived from Article 26 of the Convention, but rather refers to the failure to materially concretize 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 enforce judgments handed down in his favor at the domestic level in the context of the privatization of the state-owned enterprise, carried out after his retirement. Mr. Muelle Flores acquired his right to a pension under a contribution-based scheme administered by the State, meaning that he acquired the right to receive a pension after having made contributions for several years. The legality of his enrollment in said scheme was confirmed at the domestic level (supra para. 74)" And immediately thereafter, the Court issues a valuable summary of its review and interpretation of the various 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 State's obligations in relation to the right to a pension are as follows: a) the right to access a pension upon reaching the legal age therefor and fulfilling the requirements established in national regulations, for which purpose a functioning social security system that guarantees benefits must exist. This system must be administered or supervised and monitored by the State (in the event it is administered by private parties); b) to guarantee that benefits are sufficient in amount and duration to allow the retiree to enjoy adequate living conditions and sufficient access to healthcare, without discrimination; c) there must be accessibility to obtain a pension, meaning that reasonable, proportionate, and transparent conditions for accessing it must be provided.
Likewise, contribution costs must be affordable and beneficiaries must receive information about the right in a clear and transparent manner, particularly if any measure is taken that may affect the right, such as the privatization of a company; d) retirement pension benefits must be guaranteed in a timely manner and without delay, taking into consideration the importance of this criterion for elderly persons; and e) effective complaint mechanisms must be available in response to a violation of the right to social security, in order to guarantee access to justice and effective judicial protection, which also encompasses the material concretization of the right through the effective enforcement of favorable decisions issued at the domestic level." (bold emphasis not in the original) As can be observed, none of the points cited by the international tribunal has been disregarded by the Costa Rican legislature in its effort to adopt measures of a general nature for the modification and adjustment of the retirement and pension scheme (régimen de jubilaciones y pensiones) of the Judicial Branch; on the contrary, the situation of persons who had already acquired the right to enjoy their retirement or pension by having met the established requirements is clearly respected, while at the same time the timely funding of an old-age pension is secured for those who have yet to fulfill the legally established conditions.
In conclusion, the Court understands from the foregoing that there are no grounds for concluding that the time period established in transitional provision VI of Ley 9544 is unreasonable or disproportionate in relation to the purpose sought by the provision and, rather, the legislative decision is justified in light of the changes made. Likewise, no violation of conventional rights is found to be declarable and, therefore, the action must be dismissed on this point.
LXX.- Drafted by Justice Hernández López. On the request for a declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) of Law number 9796 of December 5, 2019.- A group of the petitioners in this proceeding requests the declaration of unconstitutionality by connection of Law number 9796 of December 5, 2019, on the grounds that it seriously violates their constitutional rights. They explain that after the approval of Law number 9544 and the filing of these unconstitutionality proceedings, Law number 9796 — which was processed under legislative file number 21.035 and entered into force on June 20, 2020 — was published on December 20, 2019, in the Official Gazette (Diario Oficial la Gaceta). That law redesigns the special solidarity contribution (contribución especial y solidaria) contained in the provisions of the various special pension schemes (regímenes especiales de pensiones) and, in particular, amends Article 236 bis of the Retirement and Pension Scheme (régimen de Jubilaciones y Pensiones) of the Judicial Branch, as approved in Law number 9544, which is challenged in this proceeding.
The petitioners allege an evident connection between Law number 9796, known as the "Law to Redesign and Redistribute the Resources of the Special Solidarity Contribution" ("Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria"), and the provisions of the disputed Article 236 bis of Ley N°8 as reformed and introduced by Ley N°9544, inasmuch as both sets of rules regulate the same factual situation — namely, compelling retired and pensioned members of the Judicial Branch to pay a higher special solidarity contribution as a result of a reduction in the exempt amount. They further argue that Ley 9796 increases revenue by redesigning the maximum pension thresholds and the exempt pension amount; that is, the situation of retired and pensioned members of the Judicial Branch whose pension amounts exceed the exempt amount becomes more burdensome, since they must contribute a larger portion of their monthly pensions.
They explain that this new law modified the exempt amounts of the special, solidarity, and redistributive contribution that had previously been set by Article 236 bis of Ley 9544 at 10 base salaries of the lowest-paid position in the Judicial Branch, and which is now limited to 6 base salaries, such that for retired and pensioned members of the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Judicial Branch, the exempt base is reduced by 40% and the exemption amount drops from ¢4.258.000,00 to ¢2.554.800,00. All of the above gives rise to an evident constitutional violation by connection in relation to the matter discussed in this action, further impairing the rights of retirees that were already unconstitutionally diminished by Article 236 bis of Ley 9544.
In the Court's view, the described request must be denied, on the following grounds: the authority granted to the Court to annul rules by connection is set out in Article 89 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which provides:
"Article 89.- A judgment declaring the unconstitutionality of a statutory provision or general rule shall also declare the unconstitutionality of the other provisions thereof, or of any other law or rule whose annulment is evidently necessary by connection or consequence, as well as that of the challenged acts of application." From the quoted text it follows that the fundamental prerequisite for the exercise of this power within an unconstitutionality action is the need to ensure the effectiveness of a judgment that upholds and declares the unconstitutionality of a statutory provision or general rule, thereby allowing the Court to encompass other legal provisions that were not challenged but whose continued existence in the legal order, and their evident connection with the provisions under discussion, threatens to perpetuate the constitutional violation that the initiated proceedings seek to remedy.
However, that is not what has occurred in the present case, where the challenge brought against Article 236 bis of Ley 9544 — of which Ley 9796 is an amendment — was dismissed on the grounds that the original design of that provision, as approved in the text of Ley 9544, does not give rise to constitutional violations that the Court is required to declare. Accordingly, the prerequisite of the cited Article 89 is not satisfied, and the request for unconstitutionality by connection must be dismissed.
Furthermore, it is procedurally improper for this Tribunal to conduct, within these proceedings, an individualized and separate constitutional review of Law No. 9796 and, specifically, of Articles 1, 2, 3, 4, and 7, which concern the special solidarity contribution established for retirees and pensioners of the Judicial Branch — both because, as explained above, the challenge 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-based, and redistributive contribution mechanism, relative to the premises that supported the enactment of Law No. 9544 at the time. With respect to the changes introduced by Ley 9796, no appropriate debate has taken place within these proceedings; therefore, the Sala must not issue a ruling on the matter, bearing in mind that several unconstitutionality actions specifically directed against the various provisions of Law No. 9796 are already being processed before this body, within which the parties will be able to fully discuss and assess the various arguments on the subject.
In conclusion, for the reasons set forth above, the request for a declaration of unconstitutionality by connection of Law No. 9796 must be rejected, and the interested parties are referred to pursue their objections through the mechanisms established by law in the corresponding case file.
LXXI. Opinion drafted by Magistrate Castillo Víquez. On the legislature's omission to incorporate a gender perspective into Article 224 of Ley 9544. — The consolidated actions raise the question of whether the legislature engaged in discrimination by failing to consider gender in the challenged legislation. The Procuraduría General de la República, in responding to the hearing granted in this unconstitutionality action, stated that such distinctions are only justified when technical studies indicate the need for differentiated treatment and that the Sala resolved the matter accordingly in Ruling No. 2018-005758 of 15:40 hours on April 12, 2018, further noting that, in any event, Article 224 bis of Ley 9544, which relates to early retirement, does draw a distinction between men and women with respect to retirement age — a distinction very similar to the one provided for under the Invalidity, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social, in that women are permitted to retire 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 Sala, stated that with regard to Article 224 of Ley 9544, the report submitted in response to the second consultation with the Supreme Court of Justice showed that the text of the applicable provision drew no gender distinction, unlike other pension regimes; an omission extensively analyzed during the discussion of the third consultation, in which a particular call was made to observe the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, whose Article 11, paragraph 1, subparagraph (e), states that State 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, unemployment, sickness, invalidity and old age, and to the provisions of Article 71 of the Political Constitution regarding special protection for women in the workplace.
The President of the Legislative Assembly noted that, since this argument — to the effect that Article 224 of Ley 9544 does not address gender criteria — had already been analyzed by the Sala, the claim should be rejected. In connection with this issue, this Tribunal, in examining the Optional Legislative Consultation in Ruling No. 2018-005758 of 15:40 hours on April 12, 2018, did in fact issue a ruling stating the following:
"(…)
A reading of the aforementioned provisions reveals that they set out the requirements that every civil servant must meet in order to obtain a pension under the Judicial Branch Pension and Retirement Regime (Régimen de Pensiones y Jubilaciones del Poder Judicial). This Sala considers that the absence of a gender-based distinction in the terms mentioned by the petitioners does not constitute a constitutional defect, since it must be borne in mind that the requirements for obtaining a retirement benefit are based on objective criteria established through technical studies, which set requirements such as age and the number of contribution periods a person must complete in order to guarantee the sustainability of a pension regime, regardless of the contributor's gender. It should be noted that the petitioners have not provided technical studies to support the alleged unconstitutionality, in a manner that would objectively justify making the distinction they find lacking — which does not mean that, in the future, this Tribunal, through subsequent constitutional review, could not analyze the grievance raised on the basis of pertinent technical studies that may be submitted.
Moreover, the studies referenced in the consultation relate to other situations that are not applicable here, as they concern, among other things, working hours, income, etc. Finally, it cannot be overlooked that, contrary to what is alleged in the consultation, the IICE, in letter No. 186-2017 of August 18, 2017, clearly and precisely establishes the following:
'c. Required retirement age and gender differences.
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 distinction 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 on grounds of gender.' In light of the foregoing, the Tribunal finds that the alleged defect is not present." In a separate vein, it must be borne in mind that no fundamental right is absolute — save for the prohibition on being subjected to cruel, inhuman, and degrading treatment — and therefore it is constitutionally valid to establish differentiated — or equal — treatment when there is an objective and reasonable justification for doing so, in order to achieve a legitimate constitutional purpose.
It must be recalled that the principle of equality entails, as the Sala Constitucional has recognized in numerous rulings, that all persons who are in the same situation must be treated equally. Furthermore, "The principle of equality, contained in Article 33 of the Political Constitution, does not mean that in every case identical treatment must be given without regard to possible legally relevant differentiating factors that may exist; or, stated differently, not every inequality necessarily constitutes discrimination. Equality, as the Sala has held, is only violated when the inequality lacks 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 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 present in each specific case in which it is invoked, so that the universal application of the law does not prohibit different solutions from being envisaged for different situations, as a form of differential treatment. All of the foregoing means that equality before the law cannot imply substantive equality or actual and effective economic equality" (see Rulings No. 1770-94 and 1045-94).
The key point is to determine whether this difference in treatment is grounded in constitutionally legitimate purposes; whether it is objective, meaning whether it rests on a different factual basis; whether it is based on relevant differences (tertium comparationis); whether there is proportionality between the constitutional purpose and the differential treatment that has been applied, and between the motive and the content of the act; and whether such treatment is suitable for achieving the intended purpose.
Under the first criterion, a difference in treatment presupposes that it be based on constitutionally legitimate objectives, which entails three consequences with respect to the purpose pursued. First, laws may not pursue ends that contradict constitutional law or the norms contained in international human rights instruments. Second, when ends that are not constitutionally protected are pursued, but which do not contradict constitutional values and principles, the differential treatment must be strictly scrutinized in relation to the factual circumstances that justify it and the purpose it seeks to achieve. Finally, when a constitutionally protected end is pursued, the differential treatment will be valid provided it respects the criteria of reasonableness and proportionality and is necessary.
The Sala Constitucional, in Ruling No. 4883-97, expressed the following regarding this principle:
"The principle of equality, contained in Article 33 of the Political Constitution, does not mean that in every case identical treatment must be given without regard to possible legally relevant differentiating factors that may exist; or, stated differently, not every inequality necessarily constitutes discrimination. Equality, as this Sala has held, is only violated when the inequality lacks 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 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 present in each specific case in which it is invoked, so that the universal application of the law does not prohibit different solutions from being envisaged for different situations, as a form of differential treatment. All of the foregoing means that equality before the law cannot imply substantive equality or actual and effective economic equality.' (Ruling No. 6832-95 of 16:15 hours of December 13, 1995)." (Bold text not in the original.)
There are justified and objective reasons for treating men and women equally with respect to the retirement age. First, such a legal mandate pursues a legitimate constitutional aim, namely the effective enjoyment of a fundamental right to retirement and to a pension, and the guarantee of access—on broader terms—to social security for a segment of the population, as set forth in article 73 of the Constitution. Second, this equalization is not an arbitrary act devoid of reasonableness and proportionality; quite the contrary, it is grounded in actuarial studies—responding to scenario two—and it seeks to close loopholes. Third, this equalization aims to correct an actuarial deficit affecting a special retirement and pension system, because, absent this measure and the other measures established in the challenged legislation, the logical and necessary consequence would be the medium-term financial unsustainability of that system, to the detriment of retirees, pensioners, and active workers.
It must be borne in mind that, as of May 20 of the current year, active workers by gender are distributed as 6,577 women and 6,919 men—that is, women represent nearly 50% of the judicial workforce—so that differential treatment would necessarily have a negative impact on the system's sustainability, which would necessarily have to be offset on the basis of actuarial studies. No less important to the majority of the Court is the argument that the global trend in retirement and pension systems is toward equalizing the retirement age between men and women. That trend is justified, among other reasons, by the fact that today women have joined the workforce in a highly significant way and have a longer life expectancy than men. To cite only a few examples, the trend in Europe—whose member countries have economies far stronger than ours—is to achieve an equalization of the retirement age between men and women by 2040.
In the face of population aging and the cost of retirement and pension systems, the trend has been not only to raise the retirement age but also to equalize it between women and men. As stated in a CEPAL document based on 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, retirement ages in Europe are currently equal for men and women in a large number of countries. In those cases where a difference persists, a process of equalization is underway. It is asserted that, by 2020, equalization of the retirement age had become a reality in the vast majority of countries and that, by 2040, it will be so in virtually all of them. If the European Union, with all its economic power, does not have sufficient resources to sustain this type of differentiation, a country with a weaker economy is even less able to do so.
It should be noted that this is the trend followed by our general retirement and pension system—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 increasing life expectancy; elements that the majority of this Court finds highly relevant to consider and that are, logically, supported by actuarial studies, as the legislature did when it enacted the provision here invoked as contrary to constitutional law. Finally, the petitioners, as was noted in the advisory opinion, have not provided any technical studies justifying the assertion that differential treatment in the retirement age between men and women is warranted. It must be reiterated once more that when a violation of the principle of equality is alleged—in this case on the ground that women are not in the same position as men—the burden of proof lies with the party invoking such a violation, and in a case of this magnitude, that burden must be discharged through actuarial studies capable of reconciling two objectives: the permissibility of differential treatment without undermining the financial sustainability of the pension system. Such argumentation is absent from the unconstitutionality actions, and for the reasons stated the appropriate disposition is to deny them.
LXXII. Drafted by Justice Hernández López. Regarding the challenges raised to the technical actuarial criteria provided in Products IICE_1 through 6. With respect to the Actuarial Study of the Retirement and Pension Fund of the Judicial Branch carried out by the Institute for Economic Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica, certain petitioners challenge specific aspects of the methodology, including the samples used, the evaluation of the data, the parameters applied, and other matters, in order to argue that this is not a study suitable to justify the reforms introduced by Ley 9544; however, as is clearly apparent from the record, such arguments were not accompanied by technical evidence supporting those assertions, nor did the petitioners offer any other equivalent and comprehensive study that might undermine the conclusions reached by the Institute for Economic Research of the University of Costa Rica—conclusions upon which the legislature relied in enacting the challenged Ley 9544—and therefore this ground of the action is denied.
LXXIII. Drafted by Justice Hernández López. On the right to a survivor's pension (pensión por sobrevivencia). — In accordance with the International Labour Organization (ILO), Social Protection is a human right, essential for achieving sustainable development, made up 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. Social security, in turn, consists of the insurance and economic systems that cover the risks to which certain persons—primarily workers—are exposed, in order to remedy or at least mitigate the harm, losses, and misfortunes of which they may be involuntary or good-faith victims (see judgment No. 2007-017971 of 14:51 hours on December 12, 2007). Of relevance to this section, it should be noted that for the ILO, social security is "the protection that society provides to its members, through a series of public measures, against the economic and social deprivation that would otherwise result from the disappearance or substantial reduction of earnings due to sickness, maternity, employment injury, occupational disease, unemployment, invalidity, old age, and death; as well as the provision of medical care and benefits to families with children" (see Introducción a la Seguridad Social.
ILO. Geneva, 1987, p. 3). Social security is an essential instrument for creating social cohesion; it contributes to guaranteeing social peace and social integration, forms an indispensable part of governments' social policy, and is an important tool for preventing and alleviating poverty; properly administered, it increases productivity by providing medical care, income security, and social services, and although it represents a cost for enterprises, it is also an investment in people and, at the same time, a support for them (see Seguridad Social: un nuevo consenso. ILO. Geneva, 2002, pp. 1–2). Among the benefits encompassed by social security in Costa Rica are survivor's pensions (pensiones por sobrevivencia), which are those that—subject to fulfillment of the legally established requirements—may be granted to the family members who survive an active worker who dies, regardless of whether the cause of death is illness, a work-related accident, or other causes.
Thus, "survivors" in the social security context refers to the deceased worker's partner and to orphaned children, whose protection takes on special importance precisely because, when death removes an important part of a family's financial support, it becomes essential to guarantee the dependants at least the minimum conditions necessary to survive while they adjust to the new situation; and it is there that social protection policies take on meaning, insofar as they help to prevent and reduce poverty and inequality, promote social inclusion, and uphold respect for human dignity—contributing to providing persons with a dignified and full life in the terms set out in article 2 of the Comprehensive Law for the Older Person (Ley Integral para la Persona Adulta Mayor), No. 7935 of October 25, 1999. According to doctrine, the branch of survivor benefits within social security was originally conceived within a traditional family structure composed of husband, wife, and children, in which the married woman remained at home attending to household duties and child-rearing while the husband and father was responsible for providing for the family.
Within that context, if the man died, his widow and the orphaned children would be deprived of their support, exposed to multiple hardships such as poverty, lack of minimum living conditions, and inability to access healthcare and education, among others; and it was for that reason that survivor's pensions were devised as part of social security. Subsequently, with women's entry into the workforce and the transformation of the traditional family model, those survivor benefits have evolved into "family benefits or benefits for dependants," which, although still primarily intended for the deceased worker's partner and for orphaned children, are not necessarily aimed at providing them with basic subsistence, but rather serve to supplement the economic contribution that the deceased insured person made to his or her family unit, so that the family may continue to maintain a certain standard of living in keeping with the one they customarily enjoyed—a contribution that is of great importance especially when one takes into account that there may be young children or persons with disabilities whose economic needs tend to be considerable.
In Costa Rica, the legislation governing this area has been grounded in the principles set forth in Conventions Nos. 102 and 128 and in Recommendation No. 131, all 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 regard, and prior to the reform enacted by the challenged Ley 9544, in the event of the death of an active employee of the Judicial Branch, the former Article 230 of the Organic Law of the Judicial Branch No. 7333 provided:
"Article 230. Officials and employees who have served fewer 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. Nevertheless, if the death of an employee results from the exercise of his or her duties—regardless of the length of service at the time—in addition to any legally applicable compensation, the beneficiaries shall be entitled to a temporary and proportional pension, under the conditions provided for such cases by this Law." As is clearly evident from reading the provision, Ley 7333 regulated the possibility that, should an active employee of the Poder Judicial die but have 10 or more years of service with the institution, that employee's relatives would be entitled to a pension regardless of the cause of death, while also establishing that if death occurred as a consequence of the performance of duties and the employee had fewer than 10 years of service, the eligible relatives would be entitled to a temporary and proportional pension, in accordance with the conditions set forth by the Law for such cases.
It is evident that the provision established broad social protection for the survivors (deudos) of the deceased, in keeping with the most basic principles established in this area by the International Labour Organization (ILO), in terms of constituting a measure to protect them against the uncertainties and risks of life that can adversely affect present and future well-being, since there is no doubt that an individual's socioeconomic circumstances amplify inequalities, vulnerability, and poverty. It should be noted that, under the former Article 224 of Ley 7333, in order to obtain a regular retirement pension (jubilación), a judicial employee was required to have 30 years of service, and accordingly the provision quoted above stated that employees who had served fewer than ten years would have no right to a retirement pension; however, the legislature, with sound social foresight, and anticipating the exceptional life events that may occur, recognized the need to protect the deceased's relatives and provided that, upon completion of 10 years of service, in the event of the death of an active employee, their survivors would indeed be entitled to a proportional survivor's pension (pensión por sobrevivencia).
It is indisputable that this provision is of great importance in a Democratic and Social Rule-of-Law State, and that death is an undeniable and integral part of the life cycle and may therefore occur at any time; however, it takes on particular significance in the case of the Poder Judicial, since many of its employees, by reason of their duties, are exposed to serious risks that may result in death, and for that reason the legislature also provided in that same provision that if an employee's death occurred as a result of the performance of his or her duties, the length of service would not be relevant—even if it were less than 10 years, the employee's beneficiaries would be entitled to a temporary and proportional pension, subject to the conditions established by the Law for such cases. It is abundantly clear that the legislature not only had a broad social perspective and was committed to guaranteeing fundamental rights, but also understood the importance of social protection as a mechanism for shielding individuals from potential risks in the life cycle—as a decisive factor in society for promoting productivity, decent work, and the structural transformation of national economies, in order to reduce poverty, social exclusion, and inequality, and to strengthen social cohesion and political stability.
Notwithstanding the foregoing, with the reform introduced to the Ley Orgánica del Poder Judicial through Ley 9544, challenged here, the situation changes radically, as argued in constitutional challenge (acción de inconstitucionalidad) No. 18-009275-0007-CO, in which the petitioners allege that the reform "renders that right nugatory for future beneficiaries such as those who acquire the right to a survivor's pension (widows/widowers, domestic partners, dependent parents) or to an orphan's pension (pensión por orfandad), as well as for persons who are disabled or incapable and who depended on the deceased, since, if the employee had not completed 20 years of service at the time of death—regardless of whether he or she had served 30, 35, or 40 years in another public-sector institution—those individuals would be left unprotected and without coverage for that contingency," concluding that "the foregoing is inconceivable within the framework of the Social Rule-of-Law State," and citing as an example the case of "a person who begins working at the Poder Judicial at age 50, who would have to wait until the age of 70 to retire, and worse still, if that person were to die before reaching those years of service, his or her survivors would receive no pension whatsoever," further noting that what is most serious about this radical change in conditions for survivors is that it was made without supporting technical criteria and without any meaningful legislative analysis. In order to understand the scope of the petitioners' claim, one must examine the provisions of Articles 228 and 229 of Ley 9544—challenged here—which govern survivor's pensions:
"Article 228- The following persons are entitled to a survivor's pension:
The following persons are entitled to an orphan's pension:
1.1) Unmarried minors.
1.2) Persons over eighteen but under twenty-five years of age who are enrolled in studies recognized by the Ministerio de Educación Pública (MEP), the Instituto Nacional de Aprendizaje (INA), or other institutions at the discretion of the Junta Administradora.
1.3) Adults who, prior to the death of the decedent, were disabled and incapable of engaging in remunerated work.
In the absence of eligible beneficiaries (derechohabientes) by reason of widowhood (viudez), de facto union (unión de hecho), or orphanhood, the parents are entitled to a pension if, at the time of the decedent's death, they were economically dependent on the decedent.
"Article 229- The amount of the survivor's pension benefits in cases of widowhood, de facto union, orphanhood, or ascendancy shall be proportional to the pension amount received by the retiree at the time of death, and the combined total shall not exceed eighty percent (80%) of what the decedent was entitled to receive. In the event of the death of an active employee, the amount of the widowhood, de facto union, orphanhood, or ascendancy pension shall be proportional to the pension amount the deceased would have received based on the requirements met at the time of the contingency, and the combined total shall not exceed eighty percent (80%) of what the decedent would have been entitled to receive.
The proportions for widowhood, de facto union, orphanhood, and ascendancy benefits shall be those stipulated in the Régimen's regulations.
Every survivor's pension shall lapse upon the death of the beneficiary, except as provided in this article with respect to pensions corresponding to children.
Allocations that lapse shall accrue proportionally to the remaining active beneficiaries, upon their request and provided they require them, following a social work assessment and approval by the Junta Administrativa del Fondo.
(As amended by Article 1° of Law N° 9544 of April 24, 2018)
From reading both provisions, it becomes clear that the petitioners' argument makes sense when one considers the case of an active employee of the Judicial Branch who dies and who was the primary support for surviving dependents. 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 qualify as beneficiaries "shall be proportional to the pension amount that the deceased would have received in accordance with the fulfillment of requirements at the time of the contingency, and in the aggregate this amount shall not exceed eighty percent (80%) of what would have corresponded to the deceased." This means that, as the petitioners note, only the surviving dependents of an employee who had 20 or more years of service in the Judicial Branch may qualify for a survivors' pension (pensión por sobrevivencia), because the provision requires that the deceased employee have been in a position to meet the requirements established in the preceding Article 224 — that is, to have had 20 or more years of service in the Judicial Branch.
Furthermore, the provision makes no provision whatsoever for benefits to surviving dependents in cases where the active employee's death resulted from the performance of his or her duties within the institution. In addition to the foregoing, as the petitioners rightly assert, the provision was amended to its current wording without any technical basis to justify the change. In that regard, it is sufficient to review the legislative file to which this Court has had access to confirm that there is no technical foundation — either in the file itself or in the testimony of the technical experts — relating to the survivors' pension that would justify the difference between the former Ley 7333 and the amendment. The Court has been able to verify that none of the 6 IICE Products that served as the basis for the legislature's enactment of Ley 9544 contains any technical justification for rolling back social protection in this area — a regression that is plainly contrary to the principles safeguarding the fundamental rights that this Constitutional Court is obligated to protect, since in this area the principle of progressivity must prevail, yet in the specific case at hand there was a regression without any justification, changing the conditions for survivors from employees with 10 or more years of service in the Judicial Branch to 20 or more years of service in the institution.
Furthermore, in the Court's view, such a burdensome distinction between the prior system and the current one renders the amended provision unreasonable and therefore lacking in any content of justice. In this regard, it must be recalled that this Court has held in the past that if "the distinction drawn by a provision produces a situation of injustice, that provision is not reasonable and therefore the substance of the equality principle enshrined in constitutional Article 33 is violated" (judgment number 2001-03192 of 10:10 a.m. of April 25, 2001). The Court finds this to be so because, as can be observed, faced with two identical situations — the death of an active male or female worker in the Judicial Branch — Ley 9544 as challenged herein gives those situations treatment that is entirely different from that contained in Ley 7333, despite the fact that nearly 30 years have passed since the enactment of one law and the other, and the logical expectation is that societies progress in a positive and forward-looking manner, not the reverse.
The actual situation in which persons who might derive benefits under these circumstances have been placed is injurious to fundamental rights and openly contrary to the provisions of constitutional Article 51, under which the family, as the natural element and foundation of society, has the right to State protection, with particular emphasis on the situation of mothers, boys and girls, older adults, and persons with disabilities. This means that, even though the State has an obligation to adopt whatever measures are necessary to guarantee such protection — among which is, without question, the recognition of social benefits derived from active male and female workers in the Judicial Branch who have children or dependent persons who form part of that essential family unit — the fact is that, based on Article 229 of Ley 9544, those dependents are left in outright abandonment if the active employee had fewer than 20 years of service in the Judicial Branch, representing a clear deterioration compared to the prior system, which protected workers with 10 years of service or even fewer if the death arose from the performance of their duties in the Judicial Branch.
This is so even though the death of an active worker generally refers to exceptionally rare circumstances that, when they do occur, affect very few people, and for precisely that reason, the recognition of a pension for their survivors would not entail a significant impact on the Fondo de Jubilaciones y Pensiones del Poder Judicial. Accordingly, what is appropriate is to maintain the 10-year threshold established in Article 230 of Ley 7333, such that the repeal of that provision shall be declared unconstitutional. Consequently, it shall be understood that the survivors' pension is owed to the dependents of an active employee of the Judicial Branch who, at the time of the contingency, had 10 or more years of service in the Judicial Branch; and in cases where death occurs as a result of the performance of the employee's duties, regardless of the length of service, the beneficiaries shall be entitled to a temporary and proportional pension in accordance with what the law provides, in addition to the indemnifications established by the regulations governing the subject matter — this being so because, as already noted, the purpose of the pension is to replace the support that the deceased person provided to those who depended on him or her, so that they do not find themselves in a situation of destitution or abandonment.
LXXIV. Drafted by Magistrate Hernández López. Regarding the arguments raised in connection with ILO Convention 102. Our country ratified Parts II and V through X of ILO Convention 102 (Social Security) on March 16, 1972. This Convention addresses several subjects, including: medical care (Part II), sickness 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 X). It has been known as the "Social Security (Minimum Standards) Convention," and it sets the minimum standards in that field, which are of mandatory compliance for all countries that have signed and ratified it, as is the case with Costa Rica, within the various options the Convention offers.
Regarding the scope of the term "residence," as indicated by the Convention in its Article 1.1.(b), it means habitual residence in the territory of the Member, and the term "resident" designates a person habitually resident in the territory of the Member, such that, as the Court clarified in judgment number 2000-002091 of 8:30 a.m. of March 8, 2000, only by error can the term "residence" be used to mean membership in a pension scheme. Part XII of the Convention establishes the obligation to grant equality of treatment to residents with respect to nationals in Article 68, which, insofar as relevant, provides:
"Article 68 1. Non-national residents shall have the same rights as national residents. However, special rules may be prescribed for non-nationals and for nationals born outside the territory of the Member, in respect of benefits or parts of benefits which are payable wholly or mainly out of public funds, and in respect of transitional schemes.
2. Under contributory social security schemes which protect employees, the persons protected who are nationals of another Member which has accepted the obligations of the corresponding part of the Convention shall have, under that part, the same rights as nationals of the Member concerned. However, the application of this paragraph may be made conditional on the existence of a bilateral or multilateral agreement providing for reciprocity." For its part, with respect to old-age benefits, Articles 25, 27, 28, and 29 set out different and mutually exclusive means of securing old-age benefits: categories of employees (contributions); categories of the economically active population; and residents whose resources do not exceed certain limits:
"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 27:
The persons protected shall comprise:
(a) prescribed classes of employees, constituting not less than 50 per cent of all employees; (b) prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; (c) all residents whose means during the contingency do not exceed limits prescribed in conformity with the provisions of Article 67; (d) or, where a declaration has been made by virtue of Article 3, prescribed classes of employees constituting not less than 50 per cent of all employees in industrial workplaces employing 20 persons or more." "Article 28:
The benefit shall be a periodical payment calculated as follows:
(a) where classes of employees or classes of the economically active population are protected, in conformity with the provisions of Article 65 or Article 66; (b) where all residents whose means during the contingency do not exceed prescribed limits are protected, in conformity with the provisions of Article 67." "Article 29.
1. The benefit specified in Article 28 shall be secured at least:
(a) to a protected person who has completed, prior to the contingency, in conformity with prescribed rules, a qualifying period which may be 30 years of contribution or employment, or 20 years of residence; (b) where, in principle, all economically active persons are protected, to a protected person who has completed a prescribed qualifying period of contribution and in whose behalf contributions have been paid on his or her behalf during the active part of his or her life for a period to be prescribed, the annual average of which reaches a prescribed figure." As can be observed, subsection a) of numeral 29 contemplates two assumptions corresponding to two of the systems: either by contribution (cotización) or by residence (residencia), and this concept clearly relates to the act of residing in a place for a specified period of time according to the Convention's own terms. In any case, the residence argument for purposes of this Convention is irrelevant because nowhere does the ILO (OIT) seek to establish rules for the survival of individuals' rights in cases where prior regulations are changed.
On this matter, it must be clearly understood that, in the aforementioned ruling (2000-002091), the Court was emphatic in noting that, while the cited Convention holds a rank superior to domestic law in accordance with what Article 7 of the Constitution prescribes, it is equally true that, given the breadth with which international conventions are drafted in the interest of greater flexibility, it is each country, according to its own economic and social conditions, that determines which factual assumptions contemplated in the respective convention conform to its own reality and, therefore, how or what domestic measures—standards prescribed in the language of Convenio 102—it must define in order to comply with or conform to the regulations it committed to uphold before the international community. Under this framework, 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—this being, in the view of this Court, the one and only interpretation that can be given to it.
As mentioned, and in accordance with the same ruling cited, what is important here is not the term "residence," but rather the fact that, in Costa Rica, the fundamental right of every person to retirement (jubilación) is recognized; a right about which this Court has also consistently insisted that, like any other right, it is subject to conditions and limitations, both of which apply only insofar as they are provided for by the rules that recognize and guarantee them, and insofar as they are reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose (see ruling 2000-002091 of 8:30 a.m. on March 8, 2000). In this area, it cannot be overlooked that Costa Rica is at the forefront of social security (seguridad social), as it goes beyond the requirements of the subscribed Convention to establish a minimum associated with the right to retirement or to a pension (pensión), and, therefore, this is what is truly important—not the thesis of certain petitioners (accionantes) who seek to reinstate old criteria of the Court that were upheld in rulings numbers 5261-95, 6842-99, and 673-00, setting aside what is truly important, which is the recognition by the Costa Rican legal system and the practical protection afforded to the right to retirement, with all the legal guarantees surrounding it.
It must be clearly understood that what the Convention seeks to ensure is that individuals receive an old-age benefit (prestación por vejez) under the terms of Articles 28 and 65, 66, or 67, depending on each of the 3 cases set forth in those provisions, but it does not require that any specific legislation be maintained; this is precisely why it has been called a "social security convention," as its purpose is to stipulate the minimum standards in that field that the countries that have subscribed to it commit to enact—and in the case of Costa Rica, that commitment has been respected and work continues to ensure that this right to retirement and to a pension may be enjoyed by the majority of people who meet the requirements for it. In that sense, it is clear that the employees of the Poder Judicial are not being left without an old-age benefit, which is what the Convention requires, as the new law maintains it for them.
What changes are the conditions for determining when they receive it. Consequently, the content of the challenged Ley 9544 does not give rise to any violation of the rights recognized by the Convention, as alleged by the petitioning party, nor is it appropriate for the Court to alter the interpretation of the Convention set forth in ruling number 2000-002091.
It is also alleged that Article 65 of this Convention establishes that the amount of the retirement benefit (prestación de jubilación) must be calculated on gross earnings and not on the retirement amount. However, as is apparent from the record, the argument is in fact not developed—that is, it is not substantiated—and that reason alone is sufficient to reject it, even though, from the text of the unconstitutionality action in which it is mentioned, its relevance or applicability to the matter under discussion is not apparent.
Finally, it is alleged that foreign residents end up in better conditions than nationals; this argument also lacks adequate development or a reasonable substantiation of the concept sought to be conveyed to the Court, and that omission is sufficient grounds for its rejection. Nevertheless, as was duly specified above, the Convention seeks equity between nationals and residents under identical conditions with respect to the matters regulated by the Convention, because again, what matters here is the recognition and protection afforded in the country to the fundamental right to a pension and to retirement. The Court holds that isolated conditions cannot be abstracted from their context and extrapolated to a pension regime (régimen de pensiones) that must be assessed as a whole, and which has conditions different from the assumptions regulated by the Convention, but which, as has been assessed in this ruling, is observed to comply with the parameters established by that international instrument. Consequently, the claims related to these arguments must be rejected.
LXXV.- Drafted by Justice Hernández López. Regarding the allegation of the absence of appropriate demographic and sociological studies to support the reform carried out under Ley 9544. A portion of the petitioners argues that the legislature's decision to extend the retirement age for judicial employees (servidores y servidoras judiciales) should have been supported by a sociological and demographic technical study that could have determined, with certainty, whether judges in all areas handled by the Poder Judicial, as well as judicial police officers, administrative staff, Prosecutors, Public Defenders, and others, are capable of working without harm to the service—and above all to their physical and mental health—as a result of extending the years of service required to retire, questioning the decision made in Ley 9544 without the benefit of that type of technical input. To assess this argument, it is essential to start from the objective that led the legislature to propose the reform to the Retirement and Pension Fund Regime (Régimen del Fondo de Jubilaciones y Pensiones) of the Poder Judicial, which consisted of the need to adopt measures to restore the actuarial balance (equilibrio actuarial) of that Fund in order to make it solvent for a period of 100 years, given that the situation was at a very high level of risk for its active contributing members (miembros activos cotizantes), as well as for the retirees and pensioners it serves; a present and future risk aggravated by the fact that, if the necessary measures were not adopted, it could become a burden on the State through the Régimen de Invalidez, Vejez y Muerte of the CCSS or through the national budget.
For that reason, given the imminence of the decisions to be made from an actuarial standpoint, the technical studies and reports that were required were logically directed toward achieving the stated objective, and so various stakeholders intervened to request that the Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica prepare an Actuarial Study of the Fondo de Jubilaciones y Pensiones del Poder Judicial, which subsequently served as the basis for the Asamblea Legislativa to enact the challenged Ley 9544. Now, the foregoing does not mean that actuarial technical studies alone are sufficient to adopt measures regarding a pension and retirement fund; however, the decision regarding the design of such regimes is ultimately a matter within the legislative discretion (libertad de configuración del legislador) of the legislature. From this perspective, it is possible that in some cases involving special retirement and pension funds, or in some workplaces, particular situations may exist with respect to certain groups of workers who, by reason of the type of work they perform, require conditions for access to the regime, membership, pension, or retirement that cannot be applied to the generality of its members, and that, for that reason, other types of technical studies—demographic, social, or otherwise, such as those being claimed—may be required to enable the legislature to make more balanced decisions with respect to that particular group of people, including what in other countries has been called "early retirement (prejubilación)"; however, it is reiterated that this is a prerogative of the legislature and not of this Court.
In this connection, it can be seen at folio 1706 of the legislative record (expediente legislativo) that, in response to a question from a legislator to the Superintendent of Pensions (Superintendente de Pensiones) at the time, regarding the population with special needs due to their workload, the response given was that the recommendation was "to create an early retirement fund and not fold it into the ordinary fund, because clearly, if you modify the conditions of the ordinary fund (sic) to serve a subgroup with special needs, the entire fund is affected for the sake of just one subgroup. In contrast, if you create an early retirement fund separate from the main fund, you can accommodate that population and reduce the cost of that population." That being the case, since the claim raised in this regard—concerning the absence of other types of technical studies—falls outside the competences of this Court, it must be stated that, insofar as this Court is concerned, that omission, in the specific case of Ley 9544, is not considered harmful to constitutional law (Derecho de la Constitución), leaving the door open for the legislature so that, in the future, if it deems it necessary, it may avail itself of that possibility.
LXXVI.- Written by Magistrate Hernández López. On the principle of mutability in social security matters. One group of petitioners (accionantes) argues that they understand the scope of the principle of mutability of the legal order (ordenamiento jurídico), inasmuch as it responds to real circumstances; however, they also contend that mutability must make the legal order flexible, adaptable, and suited to regulating life in society, arguing that Ley 9544 does not allow this to occur because it places officials with widely differing personal circumstances within a single bubble of identical legal effects, making them bear the burden of the reform under equal conditions. With respect to this principle, it must be recalled that this Court has repeatedly held that no one has the right to the immutability of the legal order—that is, the right that the rules never change (see Judgment No. 6134-98 of 17:24 hours on August 26, 1998).
In the case of special retirement and pension regimes (regímenes especiales de jubilaciones y pensiones), the legislature has full authority to make whatever modifications it deems appropriate to ensure the sustainability of the regime; moreover, because these are solidarity-based systems (sistemas solidarios) built through contributions from workers, employers, and the State in proportions established by law, it is both the competence and the obligation of the legislature—in order to guarantee compliance with the basic principles of social security and social protection—to adopt whatever measures are necessary to maintain actuarial balance (equilibrio actuarial) in those regimes. This means that the mutability of the legal order in this area is directed at satisfying the collective interest, not the private interests that some of its members may hold. It should be remembered that, even in this area, given the social objectives it protects, it is conceivable that a modification might eventually arise that could be considered regressive; nonetheless, this would be valid to the extent that it is carried out by law, is justified by technical criteria, and meets standards of reasonableness and proportionality.
From this perspective, then, this argument is without merit. It is the Court's view that, in the specific case at hand, the change in the legal order that has taken effect in the Fondo de Jubilaciones y Pensiones del Poder Judicial as a result of the challenged reform is consistent with constitutional law, inasmuch as it is directed at achieving an objective that is social, solidarity-based, and collective in nature: ensuring the solvency of that Fund for 100 more years for the benefit of its current and future members.
LXXVII.- Written by Magistrate Castillo Víquez. On the absence of regulations governing benefits for deferral of the right to retirement. The record shows that one group of petitioners challenges the amendments introduced to the Régimen de Jubilaciones y Pensiones del Poder Judicial through Ley 9544 on the ground that it lacks specific provisions granting benefits to male and female workers of the Poder Judicial who choose to defer their retirement (postergación de la jubilación), something that has been established and regulated for other pension regimes in the country, such as the IVM of the CCSS. On this point, it is appropriate to quote Article 25 of the IVM Regulations (Reglamento del IVM), which provides:
"Article 25. An insured person who meets the requirements to be entitled to enjoy an old-age pension shall have the right to an additional pension for deferral of retirement, as of the date on which such requirements under law and regulations have been met. This additional pension shall consist of 0.1333% per month of the average salary calculated pursuant to Article 23.
The amount of the additional pension for deferral of retirement, added to the amount of the ordinary pension calculated pursuant to Article 24 of these Regulations, may not exceed 125% of the average salary or income indicated therein." It should be noted that this deferral benefit takes the form of financial recognition for the worker (male or female) who, for personal, professional, or any other reasons, chooses not to avail themselves of their right to retirement or pension at the time when it would become available, but instead decides to remain active and working.
The majority of this Court considers that among the range of fundamental rights recognized in the Costa Rican legal order, the right to retirement (derecho a la jubilación) is included, as has been explained in its jurisprudence. Nonetheless, it is not possible to derive from that fundamental right, or from any other, that there exists a fundamental right to the deferral of retirement; accordingly, everything pertaining to this matter is a question of legislative policy—in the cases of special regimes—or falls within the constitutional competencies that correspond to the CCSS—in the case of the IVM regime—so that the fact that a special or general regime does not contemplate this situation does not render that omission unconstitutional. Nor is it tenable to argue that the principle of equality is violated simply because the IVM regime provides for this benefit while the Régimen de Pensiones y Jubilaciones del Poder Judicial does not, for the straightforward reason that these are different regimes, of a different nature, with different retirement profiles (perfiles jubilatorios)—retirement age, contribution amount, pension calculation, etc.—and therefore it is not possible to find a breach of the right to equality, since persons belonging to the general regime are not in the same situation as persons in the special regime, nor are the actuarial projections in each regime the same.
It must be borne in mind that the right to equality before the law does not mean that the legislature must treat equally persons who belong to regimes that, in certain non-essential respects, share certain similar characteristics; this is because not every inequality has the magnitude or intensity required to injure its essential core—for that to occur, it must involve odious discrimination that, in itself or in its effects, constitutes a violation of a fundamental right, a situation that does not arise in the sub judice. Finally, it must be noted that unconstitutionality by omission (inconstitucionalidad por omisión) arises in those cases in which the legislature fails to carry out an express mandate contained in the Constitution, or in cases of relative omission—that is, cases in which differential treatment is accorded to groups that are in the same position without objective and reasonable justification and without pursuing the realization of a constitutional objective—a situation that does not arise in the sub judice, as explained above.
In Judgment 10653-2019 this Court stated the following regarding unconstitutionality by omission:
"II.- ON UNCONSTITUTIONALITY BY OMISSION. Since, in the sub judice, the configuration of a presumed unconstitutionality by omission is alleged, it is relevant to refer to what this Court has resolved on the subject of legislative omissions (omisiones legislativas) and their review by this Constitutional Court. Thus, for example, recently, in Vote No. 2018-018592 of 09:20 hours on November 7, 2018, this Court reiterated:
'(…) This Court, in Judgment No. 2005-05649 of 14:39 hours on May 11, 2005, defined the most relevant features of the so-called unconstitutionality by omission, as provided for in Article 73, subparagraphs a) and f), of the Ley de la Jurisdicción Constitucional, in the following terms:
'(…) Constitutional law—that is, the set of constitutional principles, values, and provisions contained in the Constitution (Carta Magna)—may be infringed upon by public authorities and private parties through active or omissive conduct. In the specific case of the Legislative Assembly (Asamblea Legislativa), that branch of government violates the constitutional bloc (bloque de constitucionalidad) by action when it enacts unconstitutional laws or when, during the legislative procedure for their enactment, it commits substantive defects of such magnitude as to warrant their annulment. The Legislative Assembly violates the constitutional standard (parámetro de constitucionalidad) by omission when, faced with an express or implied mandate from the original constituent power (constituyente originario) or from the amending power (poder reformador) to enact a law developing a constitutional provision or clause, it fails to do so—absolute omission (omisión absoluta)—or when, despite having enacted a law, that law proves discriminatory by omission, by failing to regulate the situation of a specific sector or group of the population or of the potential addressees that the law should have covered or included—relative omission (omisión relativa).
In either of these cases, this Constitutional Court has sufficient competence and express statutory authorization to exercise constitutional review (control de constitucionalidad) and to declare a potential unconstitutionality of the omissive conduct (…)'.
It is clarified there that this is a specific type of unconstitutionality to which not every figure taking an omissive form can be reduced, as the Court's Vote No. 2010-8600 of 15:08 hours on May 12, 2010 also made clear:
'(…) Although this Constitutional Court is empowered to act as a negative legislator (legislador negativo), with the authority to annul from the legal order all those norms it deems unconstitutional, it is in fact precluded from acting as a positive legislator (legislador positivo) creating norms. Moreover, even though this Court has jurisdiction to review legislative omissions pursuant to Article 73 of the Ley de la Jurisdicción Constitucional, it is important to clarify that not every regulatory omission (omisión normativa) may be challenged through this avenue. In this regard, only those omissions that arise as a consequence of an express and direct mandate contained in the Constitution may be subject to constitutional review by way of an action. Now, in the specific case at hand, the petitioner claims that the norms do not indicate what the procedure is for the designation of workers' representatives in the event of a collective dispute, but the omission challenged by the petitioner does not derive from an express mandate from the constituent power; it is rather an omission that the petitioner claims to find in the text of the article, without the duty to legislate in the manner described by the petitioner deriving from the Constitution.
Moreover, since this is a Court that acts as a negative legislator, it is clear that a potential favorable judgment (sentencia estimatoria), with the consequent elimination of the norm, would not remedy the omission indicated by the proponent, so the action as framed lacks utility and is therefore manifestly without merit. Since, as in this case, what is challenged is not the text of the norms in itself but rather what—in the petitioner's view—they omit, this Court cannot issue a ruling aimed at usurping the competencies of other organs or branches of government. Under these circumstances, the action is inadmissible as to this point. (…)'.
In this way, the Court has sought to prevent the technical concept of unconstitutionality by omission from being distorted through arguments that are in fact aimed at modifying certain legislative texts in favor of particular interests. Evidently, the fact that a text has a specific content and omits another is a simple hermeneutical generality, which only in the specific cases defined by the Court since Judgment No. 2005-5649 rises to the level of unconstitutionality by omission. That is, only when the gap implies the violation of an express constitutional mandate is it possible to exercise the control in question. The admissibility of an action for unconstitutionality by omission requires demonstrating that the Constitution demands, for the full enforceability of its provisions, action by the Legislative or Executive Branch with a specific content." LXXVIII.- Drafted by Justice Hernández López.
On the challenge to the role of the Comisión Calificadora del Estado de Invalidez of the Caja Costarricense de Seguro Social in determining whether a worker may be entitled to an early disability pension (pensión anticipada por enfermedad).- Several petitioners challenge the fact that it is the Comisión Calificadora del Estado de Invalidez of the Caja Costarricense de Seguro Social—and not the Medicatura Forense del Poder Judicial, as had always been the practice within the institution—that determines whether a worker may be entitled to an early disability pension. They argue that this arrangement is irrational because, in addition to subjecting the persons who must be evaluated to long waiting lists due to the backlog handled by that Commission, the Consejo Médico Forense is ultimately the final appellate instance for reviewing the acts of the CCSS medical qualification body within social-security proceedings.
On that basis, they contend that Article 227 of Ley 9544 is contrary to constitutional law. On this point, it should be noted that the definition of this type of competence falls within the legislator's freedom of configuration and is a matter of appropriateness and convenience inherent to the legislature's power to enact law. It is the Court's view that this decision does not violate any fundamental rights and, therefore, this argument is rejected.
LXXIX.- Drafted by Justice Castillo Víquez. On the preservation of rights in the process of acquisition included in ILO Convention 157. A group of petitioners alleges that the absence of graduality criteria for the application of Ley 9544 infringes the principle of conservation of rights in the process of acquisition (derechos en vía de adquisición) enshrined in ILO Convention 157, on the grounds that persons who have been making contributions to the Fondo de Jubilaciones y Pensiones del Poder Judicial for many years—while not holding a vested right (derecho adquirido)—did have rights in the process of acquisition and should therefore have received treatment going beyond a mere legal expectation (expectativa de derecho). They also note that, in that regard, the Constitutional Court of Colombia recognized in Judgment T-235 de 2002 that "the substitution of one rule by another necessitates a transitional regime (régimen de transición).
The existence of transitional provisions is indispensable in the designation of social security rules for pensions because there are rights in the process of acquisition." On this matter, it must first be noted that, as may be observed on the official website of the International Labour Organization at the link: https://www.ilo.org/dyn/normlex/es/f?=1000:11210:0::NO:11210:P11210_COUNTRY_ID:102599, ILO Convention 157 has not been ratified by Costa Rica and is therefore a proposal that is not binding on the legislature. As far as this Constitutional Court is concerned, while Articles 6 and 7 of that Convention—which govern the system for the preservation of rights in the process of acquisition—may serve as interpretive parameters, the Court does not find it necessary to engage in any such interpretation on this point, because the situation is clear: there are technical criteria that underpinned the decision adopted by the legislature in Ley 9544, and the Court furthermore observes that the Asamblea Legislativa has complied with the minimum parameters in social security matters required by the so-called "Convenio sobre la seguridad social," or Convenio 102, which sets the minimum standards in that field and which is binding on all countries that have signed and ratified it, including Costa Rica, within the various options it offers. Accordingly, this claim must be rejected.
LXXX.- Drafted by Justice Hernández López. On the employment contract of persons working in the Poder Judicial: Among the substantive arguments raised against the reforms introduced by Ley 9544 under challenge here, it is argued that those reforms have altered the employment contract (contrato de trabajo) of persons who entered the workforce under the retirement conditions set forth in Ley 7333, thereby constituting a radical change that infringes their fundamental rights. It must be recalled that in public employment (empleo público) relationships, and provided there is proper justification, the working conditions under which public servants perform their duties may be modified in order to improve public service and satisfy the public interest; accordingly, public servants must adjust to the regulations that are issued over time. In the case under study, it has been more than technically demonstrated that, in order to strengthen the Fondo de Jubilaciones y Pensiones del Poder Judicial and make it sustainable for the next 100 years, the modifications embodied in Ley 9544 were necessary—modifications that redound to the benefit of the workers themselves. It is therefore incorrect to consider that such reforms constitute a change in the employment contract of judicial workers, who, as beneficiaries of the fund, are bound by the measures necessary to ensure its sustainability.
LXXXI.- Drafted by Justice Hernández López. On the modification of the salary structure by Ley 9544: As a result of the reforms introduced by Ley 9544 with respect to the new contribution (cotización) amounts to the Fondo de Jubilaciones y Pensiones del Poder Judicial—applicable both to active workers and to those already retired or receiving pensions—several challenges have been raised regarding the new composition of the salary structure, on the grounds that it infringes the fundamental rights of Poder Judicial workers, and equally of retirees and pensioners with respect to the components of their monetary benefit. On this subject, it must not be overlooked that the objective of the reform is to restore the actuarial solvency (solvencia actuarial) of the Fund and make it sustainable for the next 100 years—an objective that, in addition to being in the institutional and state interest, will yield the greatest benefits for its members.
The reforms introduced by Ley 9544 are therefore justified, even if they entail increasing the contributions (cotizaciones) of the members of the Fund—whether active, retired, or pensioned—which was accepted by the various labor unions of Poder Judicial workers, who were aware of the need for the reforms. For these reasons, if the modifications introduced have increased the contribution amount to the fund and have added a line item to cover the administration of the Fund, this does not have the effect of violating any fundamental right, since the ultimate objective justifies it and, as has been established, it has been grounded in technical studies. Accordingly, the claims filed on this point are rejected.
LXXXII.- SEPARATE REASONS OF JUSTICE CASTILLO VÍQUEZ.- On the hard core of the right to retirement or pension. The doctrine of the hard core (núcleo duro) or essential content (contenido esencial) of human rights originated in Germany on the basis of Article 19 of its Constitution. Now, while there is no general consensus on what the essential content of a fundamental right comprises, the methods used by the Spanish Constitutional Court in its jurisprudence are useful for its determination. In that regard, in Judgment STC 11/1981 of April 8, 2011, that Court defined the essential content as "that part of the content of a right without which it loses its distinctive character—or, in other words, what makes it recognizable as a right belonging to a certain type. It is also that part of the content which is unavoidably necessary for the right to enable its holder to satisfy those interests for whose attainment the right is granted… the essential content is exceeded or disregarded when the right is subjected to limitations that render 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 these methods relates to the legal nature of the right, which pre-exists the moment it is regulated by the legislature, such that the powers and possibilities of action necessary for the holder make the content of the right recognizable; if the legislature deprives the right of those powers, it renders it unrecognizable and distorts its nature, and such action is contrary to constitutional law.
The second method, on the other hand, corresponds to the legal interests that must be protected insofar as they give foundation to the right, such that the content is infringed when the right is subjected to limitations that prevent its exercise, hinder it beyond the bounds of reasonableness, or strip it of the necessary protection.
The right to retirement (jubilación), like any other right, has an irreducible core (núcleo duro) that is unavailable to the legislature, such that the legislature cannot impose limitations that prevent the genuine exercise of the right. Accordingly, it is not possible to establish contributions that result in the person receiving a retirement or pension (pensión) amount that does not allow them to live a dignified life and meet their needs, since in such a case the fundamental right is stripped of its essential nature. In this regard, in the study "Pensions at a Glance," the Organisation for Economic Co-operation and Development (an organization comprising 34 countries whose purpose is to promote the economic and social well-being of people throughout the world) explains that, in the vast majority of the countries analyzed in that research, there is a system of progressive contributions, where workers with average incomes generally pay more taxes than a retiree who had an average income during their working years, given that the latter now receive a lower income by way of a retirement pension.
Likewise, in those countries, persons who receive a retirement or pension income equal to the average active worker's income pay a higher contribution than other retirees or pensioners, since it is presumed that during their working years they received an income above the general average. The cited study notes, by way of example, that in Germany an average worker pays a 37% contribution, while a retiree who received an average salary during their working years will contribute 18%, and in the case of a person whose retirement or pension equals the income of an average worker, they pay 30%. Finally, that research establishes that the contributions paid by retirees range from 0 to 40%.
Now, although pursuant to the provisions of Conventions 102 and 128 and Recommendation 131 of the International Labour Organization, the irreducible core of the right to retirement or pension may be set at 40%, 45%, or 55% of the gross amount received by the person under that heading, respectively, I consider that, on the basis of Article 29 of the American Convention on Human Rights—which authorizes States Parties to recognize greater rights than those contained in international human rights instruments—the Inter-American Convention on Protecting the Human Rights of Older Persons, and the application of the principles of reasonableness and proportionality, it is necessary to fix the irreducible core of the right to retirement or pension at 50% of the aforementioned amount, such that the legislature, in exercising its taxing power (potestad tributaria), may not exceed that percentage through the establishment of tax contributions, non-tax contributions, or contributions of any other nature—such as deductions for solidarity and compensatory special contributions, taxes, and other charges.
In determining the amount of the 50% tax burden, account must be taken of the wage tax (impuesto al salario) that has applied to the worker throughout their working life, given that it is calculated on the gross amount of their salary, so that the contributions to their retirement scheme have already been taxed; were this not the case, there would be a form of double taxation (doble imposición), since taxing the salary also encompasses the contribution, and it is therefore necessary for this to be taken into account when establishing the amount of the tax burden on the retirement pension. It should be clarified that the aforementioned percentage—50%—reflects the fact that retirees constitute a vulnerable group requiring special protection; hence, any reduction to their retirement pension exceeding the amount established above results in the essential nature of that right being stripped away, thereby violating the special protection that the Constitution itself grants to older adults in Article 51, and the protection established in international human rights instruments, such as the recently adopted Inter-American Convention on Protecting the Human Rights of Older Persons, which, among other things, establishes the obligation of signatory States to protect a series of rights of this population, including: access to housing, health, education, equality and non-discrimination on grounds of 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, that international human rights instruments, once the Law approving them is enacted, are fully in force in the country without the need to await ratification and entry into force in accordance with the rules that the instrument itself establishes for that purpose, for the elementary reason that the ultimate beneficiary is the person—that is, the inhabitants of the Republic—and therefore the State of Costa Rica is obligated to respect the content, object, and purpose of such instruments—see judgment n.° 7498-2000, among others. This analysis cannot lose sight of the fact that Convention 102 of the I.L.O. was approved by Ley n.° 4736 of March 29, 1971—Convention 128 has not been approved or ratified—while the Inter-American Convention on Protecting the Rights of Older Adults was approved by Ley n.° 9394 and ratified by the Executive Branch by executive decree n.° 39973-RE, which means that between the entry into force of the former and the latter there is a very prolonged period of time—almost forty-five years—during which the vision, interpretation, and application of the norms of international human rights law have undergone an important evolution, especially through the use of the pro libertatis and pro homine principles, a circumstance that this Court cannot overlook, so that the norms contained in the I.L.O.
Conventions cannot be interpreted or applied without acknowledging this reality and the enactment of other international human rights instruments that protect the rights of older adults, especially since Convention 102 is limited to establishing minimum standards of social security. Nor can this Court set aside what is expressed in Recommendation n.° 43 of the I.L.O. on General Principles of Invalidity, Old-Age, and Death Insurance, adopted at the 17° Meeting of the C.I.T. on June 29, 1993, to the effect that the pension must cover essential needs, must take into account the cost of living, and must guarantee a pension corresponding to the retiree's social situation during their period of professional activity and, further, that the pension of persons who have accrued thirty effective years of contributions shall not be less than half of the insured wage from the time of enrollment in the insurance scheme or during the specified period immediately preceding the liquidation of the pension.
All of this makes it necessary to adopt a harmonious and evolutionary interpretation between the two international human rights instruments—the I.L.O. Convention and the Convention—so as to guarantee a minimum retirement pension that allows the older adult to enjoy a dignified life, that is, to have sufficient income to give concrete effect to the rights granted by the Convention, a conclusion that becomes even more evident when the contributions of the worker, the employer, and the State are in harmony or bear a logical and reasonable relationship to what the retiree or pensioner receives monthly by way of retirement.
Also forming part of the inviolable core (núcleo duro) of the right to retirement is the fact that it cannot be affected by the State in the exercise of its taxing power (potestad tributaria). This has been called "the contribution core" — encompassing the contributions made by the worker, the employer, and the State to the retirement system throughout the worker's entire active working life, as well as the contributions made as a retiree or pensioner to the respective scheme when required to continue contributing to it, along with the corresponding returns. To this must be added the contributions to the second and third pillars of the retirement and pension scheme (régimen de jubilaciones y pensiones) — whether to the mandatory supplementary pension scheme (régimen obligatorio de pensiones obligatorias) or to the voluntary complementary retirement and pension scheme (régimen de jubilaciones y pensiones complementario voluntario) — since all of this constitutes a lifetime of savings aimed at securing a dignified old age.
This is particularly so because, for a significant number of active workers, those contributions were duly subject to taxes on wages and other tax burdens, given that the latter are calculated on gross salary rather than net earned income. With respect to the State's contribution both as employer and as State, it is not possible to argue that, because of those contributions, the taxing power is unlimited or should be more intensive. The simple reason is that all retirement and pension schemes rest on a fundamental pillar enshrined in Article 73 of the Constitución Política — namely: the system of compulsory contribution by the State, employers, and workers. Therefore, regardless of whether the scheme is a pay-as-you-go system (régimen de reparto) or a capitalization system (régimen de capitalización) — whether in its collective or individual modality — the contributions of the State both as employer and as State form part of the resources necessary for the worker to obtain a retirement benefit.
Hence, the argument that because the State makes a certain contribution in its dual capacity the taxing power is more elastic is fallacious. Moreover, this argument runs counter to a constitutional principle: that of legitimate expectations (confianza legítima). That is to say, the active worker contributes a sum of money to the social security system with the understanding that what the State contributes in its dual capacity will be respected; otherwise, we would be endorsing the proposition that what the State originally guaranteed to the worker throughout his or her entire working life could, once the worker retires or receives a pension, be taken back 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 (seguridad jurídica) and, in other legal systems, also from the principle of good faith (buena fe).
This principle is long-standing. Indeed, the Court of Justice of the European Communities (TJCE), even though the concept was not contained in the founding treaties, recognized it in 1973 in matters of civil service (As. 81/1972 del 5 de junio). For its correct interpretation and application, legal doctrine requires certain conditions to be met:
Finally, and although it is not the subject of these actions of unconstitutionality (acciones de inconstitucionalidad) — with the exception of the contribution that retirees and pensioners may be required to continue making toward the sustainability of their respective scheme — differential treatment may not be given to retirees and pensioners of other retirement and pension schemes who receive the same or less than the maximum retirement or pension amount granted by the Caja Costarricense de Seguro Social, as compared to the taxes paid by retirees and pensioners under that latter scheme. The simple reason is that these retired and pensioned persons receive a reasonable and necessary income to meet their basic needs. Nor should taxes be imposed on such retired and pensioned persons — from all schemes — when active workers are not subject to those taxes because they do not fall within the factual circumstances provided by the applicable rule for the taxable event (hecho generador) to arise under the various taxes, parafiscal contributions (contribuciones parafiscales), etc.; nor should taxes higher than those paid by active workers be imposed on them — with the exception of contributions to the respective scheme.
Finally, and without prejudice to the foregoing, it is appropriate to clarify that the criterion mentioned above for establishing the inviolable core of the right to retirement does not apply to the setting of caps in retirement and pension matters, as these are distinct — though related — issues. Moreover, matters relating to caps are governed by their own rules, which are defined on the basis of actuarial or technical studies (estudios actuariales o técnicos), criteria of reasonableness and proportionality, the logical and necessary relationship that must exist between the contributions made by the worker and the employer to the respective scheme and the amount of the retirement benefit, and the implementation of the principle of social solidarity (solidaridad social).
LXXXIII.- NOTE BY MAGISTRATE CASTILLO VÍQUEZ. The reasons that led the Presidency of this Court, first to authorize, and then to reject, the various motions filed by Magistrate Garro Vargas are set out with complete clarity in various rulings issued in constitutional action No. 18-007819-0007-CO. Thus, in the ruling of 9:57 hrs. on April 27, 2020, the Presidency stated the following:
V.The status of Magistrate Garro Vargas changed following the resolution of her first motion. As she herself indicates, since February 12, 2020 she has been a regular magistrate (magistrada titular) of this Chamber, and in that capacity she was authorized to hear this action — supra finding 12. This situation — that of an authorized regular magistrate who, while previously serving as an alternate, had been removed from the case file and then files a new disqualification motion (inhibitoria) — has already been analyzed in this case file. Thus, this Presidency has held as follows:
"Magistrate Jorge Araya García, in his capacity as an alternate magistrate (magistrado suplente), had already filed a disqualification motion in terms similar to those just transcribed, which was at the time accepted by the Acting Presidency of the Chamber — supra finding 6. As Magistrate Araya García correctly notes, as of November 1, 2018, he assumed the position of regular magistrate (magistrado propietario) of this Chamber, which gives rise to the filing of this new motion.
V.For the resolution of this motion, Article 29, paragraph 2), of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) provides:
"When, due to an impediment (impedimento), challenge (recusación), voluntary disqualification (excusa), or other ground, a judicial officer must withdraw from hearing a particular matter, the vacancy shall be filled as follows:
[…]
Likewise, the provisions of the ruling of 14:40 hrs. on August 3, 2018 — supra finding 9 — are fully applicable, by which the other regular magistrates of this Chamber were authorized, and which provided:
"Pursuant to the provisions of the transcribed ruling, as well as those established in Article 14 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) and Article 29, paragraph 2), of the Organic Law of the Judicial Branch — supra Considerandos I and III — the Regular Magistrates are, by operation of law, required to hear those matters, without incurring any disciplinary liability for doing so. The foregoing therefore constitutes a normative justification ground that releases from all liability — including criminal liability — the Magistrates who hear a matter in which the Alternate Magistrates needed to constitute the Tribunal have some ground for disqualification or impediment in connection with that same matter." By virtue of the foregoing considerations, and in application, moreover, of the general principles of law concerning the non-waivability of jurisdiction (irrenunciabilidad de las competencias), the hermetic completeness of the legal order (plenitud hermética del ordenamiento jurídico), and the natural judge (juez natural), the appropriate course of action is to reject the disqualification motion filed by Magistrate Jorge Araya García.
The circumstances that Magistrate Araya García sets out at this time — the manifest interest in this matter from the time of his first disqualification motion, or any other ground — are irrelevant from the moment that, by operation of law — Article 29, paragraph 2), of the transcribed Organic Law of the Judicial Branch — he is obligated to hear this action. It is not possible to accept that "supervening" grounds — supra finding 4 — can override that composition; accepting them, in this particular case, would lead to the extreme of being unable to constitute a Tribunal and of the Chamber failing to fulfill the powers that have been constitutionally assigned to it. Consequently, the appropriate course of action is to declare him authorized to hear this matter" (Ruling of 15:05 hrs. on November 6, 2018, issued in this case file).
VI.Since all the justices of this Court, both permanent (titulares) and alternate (suplentes), have some ground for a recusal motion (inhibitoria) for purposes of constituting the Tribunal—as set forth in the above recitals—there is no evaluation of which justice might have a "privileged" ground for separation, such as family ties, but rather of the rules established in the legal system for constituting the Tribunal. Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial, which was not cited by Justice Garro Vargas, clearly states how the Court must be constituted in a situation such as the one described: "When the ground (causal) covers both permanent and alternate members, the case shall be heard by the permanent members, notwithstanding the ground and without disciplinary liability with respect to them." The situation of Justice Garro Vargas changes from the moment she became a permanent member of this Tribunal and, consequently, her legal and constitutional duty is to constitute this Court for this case.
Removing the natural judge (juez natural) from hearing a matter assigned to her chambers may actually impair the administration of justice, and is only justified on serious grounds and for serious reasons. In addition to the quoted provision, it would be contrary to due process (debido proceso) for a case to be adjudicated by an incompetent or ad hoc tribunal, as this is one of the features of the so-called principle of the natural judge, "regular judge," or "ordinary judge," whose foundation is found in Article 35 of the Constitution. In light of the foregoing, and of the right of non-waivability of jurisdictions, the hermetic completeness of the legal system, and the natural judge, the appropriate course of action is to deny the motion filed by Justice Anamari Garro Vargas."
Subsequently, by order issued at 8:44 a.m. on June 2, 2020, the Presiding Justice elaborated further on the reasons why Justice Garro Vargas was authorized to hear said constitutional challenge:
V.Regarding the alleged omission in the order of April 27, 2020 (II.- a). Justice Garro Vargas states that the order of April 27, 2020 is deficient and did not analyze all of her arguments because, contrary to what was stated, she did in fact refer to Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial. In her recusal motion, Justice Garro Vargas stated the following:
"As is well known, the rules governing the grounds for impediment (impedimento) from hearing a matter in the constitutional jurisdiction are set out, in order of precedence, 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 12 of the Código Procesal Civil (CPC)." It is in this part of her motion that Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial "was not cited by Justice Garro Vargas." In the view of the Presiding Justice, that provision is encompassed within the rules applicable "in cases of impediment, challenge (recusación), or self-recusal (excusa)" (Article 6 of the Ley de la Jurisdicción Constitucional). Therefore, there was no omission on the part of the Presiding Justice in analyzing the arguments of Justice Garro Vargas; on the contrary, it was a clarification made regarding the applicable rules.
VI.Regarding the additional grounds for disqualification of Justice Garro Vargas and the interpretation of Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial (II.- b and c). Justice Garro Vargas disagrees with the Presiding Justice's interpretation of Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial. She considers that the use of the definite article "la" refers to a specific, concrete, and particular "ground," not in generic terms. In her case, "there is a combination of interests that aggravates my personal situation," namely those of her brother and maternal aunt, already mentioned. She estimates that if the reason for her authorization is that she is now a permanent member, "a permanent Justice could never be disqualified if she has grounds for disqualification different from those of the alternate justices and/or the other permanent justices, and that does not seem reasonable."
The manner in which this Tribunal—and not just the Presiding Justice, as will be seen—applies the aforementioned provision is not shared by Justice Garro Vargas. Nevertheless, there are no grounds to reconsider or modify the position, consistently held over the years, for the specific case of Justice Garro Vargas.
There are two interrelated matters that must be addressed. On one hand, the grounds for disqualification that Justice Garro Vargas holds; just as all the justices, both permanent and alternate, of this Tribunal have ground for separation, as they have each made clear in the case file. On the other hand, given these circumstances, how the Tribunal must be constituted.
The Ley de la Jurisdicción Constitucional provides:
"Article 4.- […]
The Sala Constitucional is composed of seven permanent justices and twelve alternate justices, all elected by the Asamblea Legislativa in the manner provided by the Constitution. Its organic and disciplinary regime is that established in this Law and in the Ley Orgánica del Poder Judicial.
The Sala Constitucional is not subject to the vacation schedule established in the Ley Orgánica del Poder Judicial and, consequently, shall set the dates on which its members take vacation, ensuring that there is always a majority of permanent justices." "Article 7.- It belongs exclusively to the Sala Constitucional to rule on its own jurisdiction, as well as to hear incidental matters that arise before it and related preliminary questions." For its part, the Ley Orgánica del Poder Judicial establishes, as relevant, the following:
"Article 31.- In the absence of an express rule on impediments, self-recusals, and challenges, the provisions of the Código Procesal Civil shall apply in any matter, except in the constitutional jurisdiction, which shall be governed by its own rules and principles." "Article 29.- When, due to an impediment, challenge, self-recusal, or any other reason, an officer must recuse himself from hearing a specific matter, his absence shall be filled in the following manner:
[…]
From the quoted provisions it follows that the legislature provided that cases brought before this Tribunal be resolved by the "permanent justices" and only exceptionally by the alternate justices. The permanent justices, as the natural judge—Article 35 of the Constitución Política—are the ones called upon to establish the precedents and jurisprudential lines of this Tribunal, which constitute a guarantee of legal certainty for the parties. Likewise, the legislature granted this jurisdiction the authority to resolve incidental matters, such as the constitution of the Tribunal, in accordance with its own rules and principles developed over more than 30 years, which will be reviewed below. Finally, civil procedural rules, such as Article 16 of the Código Procesal Civil—see Considerando VIII below—are of supplementary application in this jurisdiction.
Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial, as explained in the order whose reconsideration Justice Garro requests, is the solution provided by our legal system when neither permanent nor alternate justices are able to hear a specific matter, in which case, by application of the natural judge principle, it is the permanent members who shall hear it. The application of this rule to the justices of the Sala Constitucional is not novel. Thus, to cite only a few examples, by orders issued at 10:15 a.m. on March 24, 2005—Expediente No. 04-011833-007-CO—and at 1:14 p.m. on March 3, 2008—Expediente No. 08-001177-0007-CO—the Presiding Justice of this Tribunal authorized one or more permanent justices to hear those proceedings. Indeed, recently, the Court itself, and not merely the Presiding Justice, reaffirmed this position:
"In accordance with the provisions of the transcribed order, as well as with Article 14 of the Ley de la Jurisdicción Constitucional and Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial—'When the ground covers both permanent and alternate members, the case shall be heard by the permanent members, notwithstanding the ground and without disciplinary liability with respect to them'—permanent justices are required by law to hear those matters, and they shall not incur disciplinary liability for doing so. This constitutes, therefore, a normative justification that relieves of all liability, including criminal liability, the justices who hear a matter in which the alternate justices, necessary to constitute the Tribunal, have some ground for disqualification or impediment with respect to the same matter" (Sentencia No. 2019-010861 of 9:20 a.m. on June 14, 2019).
In these exceptional cases, such as the present one where all permanent and alternate justices have grounds for disqualification, the particular interest must yield to the public interest for the sake of the existence of the constitutional jurisdiction. "Privileged" grounds or "additional reasons" cannot carry weight when practically all members of the Tribunal are disqualified from hearing the case and, by operation of law, it falls to the permanent members to hear it.
See, for example, Expediente No. 17-006076-0007-CO, in which Justice Esquivel Rodríguez filed three disqualification motions, all on different and objective grounds, all of which were denied; or my own case, in which I filed a second disqualification motion on different and objective grounds, as did Justice Hernández Gutiérrez, and it was denied.
Indeed, in this case file, Justice Hernández López filed, after her authorization, a disqualification motion that was resolved in the following terms:
"The 'conflict,' regardless of its degree, among all constitutional justices, permanent and alternate, of this Court was reflected in the disqualification motions that every one of us filed. Whether the degree is greater or lesser is entirely irrelevant from the moment the tribunal for this case was constituted—see recitals 4 and 5 above—applying the provisions of Article 29, paragraph 2), of the Ley Orgánica del Poder Judicial, without entering into this type of assessment" (Order of 9:42 a.m. on October 10, 2019).
In the ruling of April 27, 2020, the Presidency did not deny the existence of "additional grounds" for recusal (inhibitoria) cited by Justice Garro Vargas — namely, that her brother and maternal aunt also have an interest in this action. Rather, the designation of Justice Garro Vargas as a sitting member of this Court is an objective condition that yields to her personal interests. It should be noted that the enabling of alternate Justice Marta Esquivel Rodríguez — who was herself, at the time, granted her recusal — was not arbitrary, nor was it because she had fewer grounds for recusal than the other alternate justices. Rather, it was because she "currently sits on the Constitutional Chamber, having been selected by lottery to temporarily occupy the vacancy on the Court" (ruling of 9:07 a.m., February 13, 2019). That seat, as already stated, is occupied by Justice Garro Vargas; therefore, upon the motion filed by Justice Marta Esquivel Rodríguez, and since the objective reason for which she had been sitting — not her grounds for recusal — had ceased to exist, the provision set forth in Article 29, paragraph 2), of the Organic Law of the Judicial Branch was applied and Justice Garro Vargas was enabled.
VII.Regarding the reference to Justice Araya García (II.-d). Justice Garro Vargas contends that her situation differs from that of Justice Araya García, in that she has two additional grounds for recusal, and therefore the cases cannot be treated as equivalent. The reference made in the ruling of April 27, 2020 to the situation of Justice Jorge Araya García was intended to illustrate the case of a recused alternate justice who is subsequently appointed as a sitting justice and enabled to hear the case — the same objective condition that applies to Justice Garro Vargas — and was in no way intended to compare or weigh the personal or familial interests of the two justices in the case. Such interests, as already stated, yield to the public interest and the necessity of constituting the Court by operation of law, pursuant to Article 29, paragraph 2), of the Organic Law of the Judicial Branch.
VIII.Regarding the provisions of the Code of Civil Procedure (III. b). It is recalled that Article 4, second paragraph, of the Law of Constitutional Jurisdiction provides that the organic framework of this Court is that established in that legislative body and in the Organic Law of the Judicial Branch — in particular Articles 31 and 29, paragraph 2) — and that civil provisions, such as Article 16 of the Code of Civil Procedure, are supplementary and complementary rules for this jurisdiction. It should also be noted, as has been emphasized throughout this ruling, that the enabling of Justice Garro Vargas resulted from an objective condition, namely her appointment as a sitting justice of this Chamber. Finally, with respect to the notification that Justice Garro Vargas claims was lacking: she is not a party to these proceedings, and accordingly justices are not ordinarily notified of rulings issued in this file, except when justices have been subject to a motion for disqualification and have designated a means for receiving notifications. In any event, any failure to communicate the ruling would be a matter bearing on its effectiveness, not its validity — Articles 140 and 334 of the General Law of Public Administration. Nonetheless, this ruling will be communicated to Justice Garro Vargas.
IX.Conclusion. The motion for reconsideration filed by Justice Garro Vargas — whether treated as a formal appeal or an informal petition — against the ruling of April 27, 2020 is inadmissible, pursuant to Article 11 of the Law of Constitutional Jurisdiction and the precedents of this Chamber. Nor does annulment of the aforementioned ruling lie, since no serious errors are found either in its assessment of the facts or in the manner in which the Court was constituted for this case: there was no omission in the analysis of Justice Garro Vargas's arguments; the appointment of Justice Garro Vargas as a sitting member of this Court is an objective condition that yields to her personal interests, as this Court has repeatedly held in the cases of other justices; and that objective condition makes it necessary to apply Article 29, paragraph 2), of the Organic Law of the Judicial Branch, but not the supplementary provisions of the Code of Civil Procedure.
Finally, in my note to Ruling No. 2020-015544, issued at 12:10 p.m. on August 20, 2020, I stated the following:
"A.- CONSTITUTIONAL JURISDICTION IS A SPECIAL JURISDICTION There is no doubt that constitutional jurisdiction differs from all other ordinary jurisdictions. Its role as guardian of the principles of constitutional supremacy and the normative force of the Constitution, and its function of guaranteeing effective protection of fundamental rights, give it a singular character. Regarding the mission of the Constitutional Chamber, this Court, in Judgment No. 76-92 of 4:30 p.m. on January 15, 1992, established, in the relevant part, the following:
'I) The far-reaching significance that decisions such as those in this case acquire, and the necessary impact they have on the conduct of the country's public bodies, warrants that the Chamber offer a brief reflection, by way of preamble, regarding the mission entrusted to it by virtue of the constitutional provision that created it and the Law of Constitutional Jurisdiction upon which its work is founded. The work of the Constitutional Court, as the most eminent legal scholarship underscores, is a defense — at times a dramatic one — of human rights, and at times the development and evolution of those rights toward clearer and more defined forms.' It must not be lost sight of that the design of constitutional jurisdiction responds to the subject matter of the constitutional legal disputes it is charged with hearing. On one hand, we have the constitutional processes for the defense of the Constitution — actions of unconstitutionality, constitutional consultations, judicial constitutional consultations, and constitutional competence conflicts — designed for disputes in which a violation of the constitutional principles of constitutional supremacy and the normative force of the Constitution is alleged, as well as fundamental rights; in the latter case, as enshrined in the Fundamental Charter and the International Human Rights Instruments in force in the Republic, these fall under the umbrella of the aforementioned principles, as well as the principle of constitutional rigidity.
On the other hand, there are the constitutional guarantee processes — habeas corpus, amparo, amparo against private parties, and amparo concerning the right of reply — invoked when a legal dispute involves an alleged violation of fundamental rights enshrined in the Constitution or in the International Human Rights Instruments in force in the Republic.
Without intending to be exhaustive, the distinctive features of this jurisdiction include, among other things:
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 effect, except with respect to the Chamber itself.
c.- In view of the interests at stake, there is an ex officio procedural impulse, such that the adversarial principle is severely curtailed; even in habeas corpus proceedings and actions of unconstitutionality, withdrawal is not permitted (see, among others, Judgments Nos. 687-91 and 511-93).
d.- Finally, this Court has held 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 ruling of 8:15 a.m. on November 4, 2005). This implies that, as a matter of principle, the acceptance of recusals and disqualification motions in constitutional jurisdiction must be highly exceptional.
B.- THE INADMISSIBILITY OF THE NULLITY MOTION Article 4, second paragraph, of the Law of Constitutional Jurisdiction provides that the organic framework of this Court is that established in that legislative body and in the Organic Law of the Judicial Branch. The latter normative text, in its Article 31, recognizes the special character of Constitutional Jurisdiction by stipulating that in matters of impediments, excusals, and disqualifications, it "(…) shall be governed by its own rules 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 Constitution), under which no one may be judged by an ad hoc tribunal 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 exclusively 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 applicable, those of International or Community Law; - the General Law of Public Administration, - the Code of Administrative Litigation Procedure, - and the Procedural Codes.
The Law of Constitutional Jurisdiction contains an express provision, since Article 11, second and final paragraph, establishes that there shall be no appeal against the judgments, orders, or writs of the constitutional jurisdiction. Ergo, it is not possible to invoke the second sentence of Article 14. Now, upon reviewing the legislative history of the Law of Constitutional Jurisdiction, we find the following element of consideration that helps us resolve the matter in terms of a proper interpretation and application of the legal order. Let us examine what is found in legislative file No. 10.273:
- THE TEXT RECOMMENDED BY THE COMMISSION APPOINTED BY THE EXECUTIVE BRANCH read as follows:
"Article 4: Judgments and orders of that character shall be issued by the Chamber sitting in plenary; the remaining resolutions shall fall to the President or, as the case may be, to the Justice designated for the investigation.
No appeal shall lie against the resolutions issued by the Chamber in the processing and decision of the amparo, except for a claim of liability where applicable. Nor shall any appeal lie against those of the President or the investigating Justice, without prejudice to the Chamber's power to revoke or modify them at any time or upon resolution of the appeal.
The judgments issued by the Chamber may only be clarified or supplemented upon the motion of a party if requested within three days." (Folio 695).
- COMMENTARY BY 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: "No appeal shall lie against the judgments, orders, or writs of the constitutional jurisdiction."' I find the power of the Constitutional Chamber to revoke or modify ex officio the resolutions of the President or the Investigating Justice highly inadvisable. It is a principle of procedural instability that must be eliminated." (Folio 920).
Although it is true that in the subsequent pages of the aforementioned legislative file we find no discussion of the opinion expressed by Professor Ortiz Ortiz, the fact remains that his commentary resonated with the members of the legislative committee, as evidenced by the abandonment of the wording originally proposed by the Executive Branch, which had eliminated the power of the Full Chamber of the Constitutional Court to revoke or modify, on its own motion, the rulings of its president or reporting justice. As is well known, the only instance in which an appeal against the President of the Constitutional Court is permitted under the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) is found in Article 80, second paragraph, which provides that if compliance with the order is not achieved, the president shall deny processing of the action. Against that latter ruling, a motion for revocation may be filed within three days, in which case the president shall elevate the matter to the Constitutional Court for it to decide as appropriate. In legislative file No. 10.273, no discussion arose regarding Article 80.
It must be borne in mind that the motion filed by Justice Garro Vargas is incompatible with the summary nature of constitutional guarantee proceedings and with the objectivity of constitutional proceedings for the defense of the Constitution. Even if we look to the Code of Civil Procedure (Código Procesal Civil), we find the rule — Article 17 — providing that rulings issued in connection with a challenge for lack of jurisdiction (inhibitoria) and a recusal (recusación) are not subject to any appeal.
Finally, the nullity petition (gestión de nulidad) filed is likewise inadmissible, because the circumstances under which the Court has accepted this type of motion require two necessary elements: an erroneous assessment of the facts and prejudice to the parties caused by the error. As stated in one of the challenged rulings: (a) not even the parties are empowered to seek reconsideration of a ruling that resolved challenges for lack of jurisdiction, such as the one presented here — even informally and not properly as an appeal; and (b) the Court may indeed, even on its own motion, annul a ruling or judgment issued by the Tribunal so long as it contains serious errors — a circumstance that does not obtain in this case. In the sub lite, the nullity petition is grounded on an erroneous interpretation and application of the applicable rules, which is an entirely different matter from what this Tribunal has established. Were this position accepted, the logical and necessary consequence would be the absolute paralysis of constitutional jurisdiction, for the simple reason that every person dissatisfied with a ruling of this Tribunal would file a nullity petition invoking an erroneous interpretation and application of legal norms.
That being so, for the reasons set forth in the interlocutory ruling and those I add here, I conclude that the motion filed by Justice Garro Vargas is manifestly inadmissible.
C.- ON THE SUBSTANTIVE ARGUMENTS OF THE APPELLANT Justice Garro Vargas advances two central arguments against the rulings of the Presidency. Specifically: first, that the panel was already constituted in accordance with Article 16 of the Code of Civil Procedure, which enshrines the procedural doctrine of the perpetuity of subjective competence (perpetuidad de la competencia subjetiva). Second, that there was an erroneous interpretation and application of the procedural rules governing challenges for lack of jurisdiction, which renders the challenged rulings null. With respect to both arguments, it is necessary to be clear that constitutional jurisdiction is a special jurisdiction and, consequently, is governed by its own rules regarding challenges for lack of jurisdiction and recusals. This follows from the harmonious interpretation of the norms regulating the matter. Indeed, as set out above, Articles 4 (paragraph 2), 7, and 14 of the Law of Constitutional Jurisdiction, as well as Article 31 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), make plain that the applicable rules are those of the special jurisdiction and not those of other jurisdictions governed by procedural regulations — and when the latter must be applied, it must logically be done through an exegesis or interpretation that satisfies standards of logic and legal technique.
Of paramount importance is Article 31 of the Organic Law of the Judiciary, which establishes clearly and precisely that constitutional jurisdiction has its own particularity, since in matters of impediments (impedimentos), excuses (excusas), and recusals it "shall be governed by its own norms and principles." (Emphasis not in the original.) Proceeding from this premise, it is clear that procedural rules apply only in those cases for which no norms and principles exist within constitutional jurisdiction, within the principles of Constitutional Law and of general Public and Procedural Law, or, as the case may be, within International or Community Law, the General Law of Public Administration (Ley General de la Administración Pública), and the Code of Administrative Litigation Procedure (Código Procesal Contencioso-Administrativo). Now, since the Law of Constitutional Jurisdiction does not regulate the factual scenario in which both the regular justices and the alternate justices have a ground for challenge for lack of jurisdiction — nor do the other supplementary normative sources referenced in Article 14 of the Law of Constitutional Jurisdiction — we must necessarily have recourse to Article 29, subparagraph (b), of the Organic Law of the Judiciary.
Before doing so, however, it is important to recall the legislative history of Article 31 of the Organic Law of the Judiciary. Upon reviewing legislative file No. 10.753, which gave rise to Law No. 7333 — the law that comprehensively reformed the Organic Law — we find that the current wording was not included in the committee report forwarded to the Legislative Plenary; the Plenary returned it to the reporting committee with instructions to take into account the observations of the Supreme Court of Justice. It was in the report submitted by the Supreme Court of Justice to the Legislative Assembly that the current wording was proposed, and in the subcommittee of the Permanent Standing Committee on Government and Administration that studied the bill, at folio No. 2673, the intervention of Justice Mora Mora appears, who stated the following at the session of that body on May 27, 1992:
"As for Article 31 — What it brings is an exception with respect to Constitutional Jurisdiction, which I believe is appropriate as written.
The regime of impediments, excuses, and recusals in constitutional jurisdictions has always been different, because the aim is to ensure that the Justices never shield themselves behind an impediment or an excuse to avoid ruling, and rather to compel them to rule and to be very restrictive with respect to matters of impediments, excuses, or recusals.
Since the Constitution serves as the overarching framework for the entire legal system of a given country, it would be easy, following traditional systems of impediments, excuses, and recusals, for constitutional judges to avoid committing themselves by resolving matters brought before them, and that is why the goal is to have restrictive criteria in that regard.
That exception, which had been left out of the original wording, is restored at this moment, and it seems to me that it is appropriate to accept the Court's position in this case." (Emphasis not in the original.)
As is readily inferred from the text of the norm and its legislative history, in constitutional jurisdiction the constitutional judges are called upon to resolve the matters that come before them, and the regime of challenges for lack of jurisdiction and excuses is extraordinarily exceptional. In tracing the origin of this norm, we undertook a review of the minutes of the Supreme Court of Justice. In minute No. 68-91 of the Full Court (Corte Plena) held on November 12, 1991, we find that it was Justice Piza Escalante who requested that the first paragraph of Article 31 of the Organic Law of the Judiciary be amended. Article X reads verbatim as follows:
"Justice Piza takes the floor to propose that the text of the first paragraph of Article 31 be amended as follows:
'In the absence of an express rule on impediments, excuses, and recusals, the provisions of the Code of Civil Procedure shall apply in all matters, except in Constitutional Jurisdiction, which shall be governed by its own norms and principles.' Justice Piza continues with the floor to reiterate that his proposal returns to the classical rule that in Constitutional Jurisdiction there are no excuses or recusals, because what is at stake is the Law, and so it was previously under the Laws of Amparo and Habeas Corpus and the provisions regulating the unconstitutionality appeal, and additionally because its rules are different from those of other Jurisdictions. The speaker adds that he makes this proposal because the Legislative Assembly did not include an express rule in the Law of Constitutional Jurisdiction, and because, given that this is an autonomous area of law, recourse is made to the general principles of that field itself, which has its own tradition and doctrine with rules distinct from all others.
Justice Rodríguez took the floor to support Justice Piza's proposal, as he does not consider it appropriate that, because of the problems the Court has experienced, it should be subjected to the rules on impediments, excuses, and recusals provided for other Jurisdictions, and he cited, by way of example, certain cases of national significance.
Justice Piza's proposal was put to a vote and was adopted unanimously, with the exception of Justice Zamora, who voted against it on the grounds that the matter is already addressed in the norm that is proposed to be amended." There is no doubt that the position of the Supreme Court of Justice resonated with the members of the Legislative Assembly and that, consequently, they recognized by an act of law the special nature of Constitutional Jurisdiction, which in matters of challenges for lack of jurisdiction and recusals is governed by its own rules and principles.
With respect to the first ground of appeal, it is clear that the status of Justice Garro Vargas changed from the time the ruling on her first challenge for lack of jurisdiction was issued when she was an alternate justice, given that she is now a regular justice. This is analogous to the case of Justice Araya García, who, having had his challenge for lack of jurisdiction accepted while serving as an alternate, was subsequently reinstated to the panel upon being appointed as a regular justice. That is, there is an objective circumstance in both cases that qualifies them to sit on the Tribunal.
Since all the justices of this Chamber, both permanent and alternate, have some ground for disqualification (inhibitoria) for purposes of constituting the Tribunal — the Law does not speak of the same ground for disqualification — it is not assessed which justice might have a "privileged" reason for withdrawal, such as relatives — a brother and a maternal aunt — but rather the rules set forth in the legal system for constituting the Tribunal, such as Art. 29, inciso 2) LOPJ. Regarding the ratio legis of article 29 of the Ley Orgánica del Poder Judicial, in judgment n.° 2020-009188, the Sala Constitucional established, through a historical analysis, that the current wording of article 29 of the Ley Orgánica del Poder Judicial was introduced by Ley n.° 7728 of December 15, 1997, a law enacted — in the words of Justice González Álvarez — to align or make the adjustments necessary to adapt the structure of the Judicial Branch to the requirements of the new Code of Criminal Procedure (see folio 105 of legislative file 12.992).
That reform to the Ley Orgánica introduced, as relevant here, the sentence that proves decisive in resolving this issue, which reads as follows: "When the grounds for disqualification cover both permanent and alternate justices, the case must be heard by the permanent justices, notwithstanding the grounds for disqualification and without disciplinary liability attaching to them." Before that reform, this rule did not exist. However, upon reviewing both the legislative file cited above and the minutes of Corte Plena sessions n.°s 3, 4, 5, 6, 8, 10, 11, 13, 15, 18, 20, 21, 24, 25, 29, 30, and 43 of 1997, no explanation was found for the decision to introduce this provision into article 29 of the aforementioned Ley Orgánica. Having ruled out the historical method, the task at hand is to interpret the applicable rules using other methods of interpretation, such as the textual, teleological, and systematic methods.
But before analyzing articles 29 and 32 of the Ley Orgánica del Poder Judicial in detail, it is important to bear in mind what CABANELLAS aptly reminds us: "(…) that we must not distinguish where the law does not distinguish," or that legal maxim "(…) when a law is drafted clearly, one must abide by its text and not distort it under the pretext of penetrating its spirit." (CABANELLAS, Guillermo, Compendio de Derecho Laboral, Tomo I, Buenos Aires, Bibliográfica Omeba, 1968, pág. 234). The provision is categorical: the justice bears no disciplinary liability whatsoever; in other words, it is the Law — not the Presidency — that authorizes the justice to sit, and it exempts the justice from all liability. From a logical interpretation of this provision, several necessary conclusions can be drawn without straining the text. First, when a ground covers both permanent and alternate justices, the case must be heard by the permanent justices — that is, the provision categorically excludes alternate justices and mandates — note that the verb is used in the imperative: must — that the matter be heard by the permanent justices.
Second, since alternate justices are excluded by operation of law, they may not constitute the Tribunal for as long as there are sufficient permanent justices and the scenario described in the cited paragraph of Art. 29 of the Ley Orgánica del Poder Judicial applies, even if a permanent justice subsequently invokes another ground or other grounds for disqualification. And, finally, to include an alternate justice who has been excluded by law when there are sufficient permanent justices — because the alternate shares a ground that the permanent justices also hold — would be to act contrary to the statutory text and to constitute the Tribunal in a manner inconsistent with the legal system. Based on this reasoning, it is irrelevant in this last scenario whether the permanent justice has additional grounds, since it is legally impossible to include an alternate justice because the Law prohibits it; the Presidency of the Chamber has so interpreted this provision at various points in its history, as was communicated to Justice Garro Vargas in one of the rulings she challenges.
Adopting a line of reasoning contrary to the one established by the Presidency of this Tribunal throughout its history would lead to a situation of paralysis and a violation of the fundamental rights of litigants (justiciables), particularly the right to effective judicial protection (tutela judicial efectiva). Indeed, if it is not possible to reinstate the alternate justices and, in the hypothetical case that a permanent justice's disqualification were accepted on the grounds that the justice has more reasons for disqualification, the logical consequence would be that no Tribunal would ever be constituted to resolve the constitutional legal controversy, resulting in a corresponding violation of fundamental rights and the paralysis of the Tribunal in that specific case. It will be argued, in opposition to what we are asserting, that alternate justices could indeed resolve the matter when a permanent justice has additional grounds for disqualification.
However, this solution is contrary to the Law, since when a ground covers both permanent and alternate justices, the statutory rule is clear: the matter must be resolved by the former, and never by the latter. It will then be argued that the proper course is to apply article 32 of the Ley Orgánica del Poder Judicial; however, that solution faces two insurmountable objections. The scenario of absent justices — both permanent and alternate — is governed by article 32 of the Ley Orgánica del Poder Judicial, which provides, as relevant here, the following:
"Article 32. — Temporary absences shall be filled as follows:
As can be seen, the scenario contemplated by the provision is one in which, for some reason, there are no justices and, in the event there are not enough alternates, the Asamblea Legislativa must be asked to designate, following the procedure for the selection of alternate justices, those necessary for the case. Consider the situation experienced by the Sala Segunda of the Corte Suprema de Justicia in which there were no alternates, since the Asamblea Legislativa had not appointed them, as required by article 164 of the Constitution (Carta Fundamental), and a permanent justice, for some justified reason — for example, incapacity for health reasons — was unable to sit; it is in those circumstances that article 32, which we are discussing, must be applied. The reason is simple and elementary: courts of justice — the Chambers of the Corte Suprema de Justicia — function with a structural and functional quorum of all their members; unlike courts in other parts of the world — for example, the Supreme Court of the United States of America or European Constitutional Tribunals — where the figure of the alternate justice or associate judge (conjuez) exists, but those courts function with a structural and functional quorum that is not all of their members but a lesser number: in the case of the Supreme Court of the United States, seven of its nine members, and in the case of the Spanish Constitutional Tribunal, eight of its twelve members.
It can readily be concluded that this provision cannot be applied in the sub judice matter, since in the scenario under analysis there are in fact alternate justices. Moreover, it would be extremely serious if the constitutional jurisdiction were to allow the appointment of one or more ad-hoc justices by the Asamblea Legislativa; all the 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 Constitution — and the right to effective judicial protection, which must not only be prompt and complete but must also conform to constitutional law — values, principles, and norms. From everything stated thus far, the logical and necessary consequence is that the permanent justices must vote on the accumulated unconstitutionality actions (acciones de inconstitucionalidad); otherwise, the Tribunal would remain disintegrated sine die, to the detriment of the petitioners.
It is also important to bear in mind an essential element of constitutional jurisdiction: the precedents and jurisprudence of the Sala Constitucional are binding erga omnes, except upon itself, so there is a clear tendency in the rules governing it for the permanent justices to define and establish its major jurisprudential lines. The reason is simple and elementary: it is the only way to ensure that precedents and jurisprudence will be maintained over time, which is consistent with a fundamental principle of the legal system, namely legal certainty (seguridad jurídica). A jurisprudential line or precedent will hardly be sustained over time if the rule of law is established by a Tribunal made up of alternates, or one in which the decisive vote belongs to an alternate as a result of the dissenting votes (votos salvados) of three of its permanent members.
In these exceptional cases, such as the present one, in which all permanent and alternate justices have a ground for disqualification, the private interest must yield to the public interest for the sake of the stability of constitutional jurisdiction. "Privileged" grounds or "additional reasons" cannot carry weight when practically all members of the Tribunal are disqualified from hearing the case and, by operation of law, it falls to the permanent members to hear it. This is why Art. 29.2) of the Ley Orgánica del Poder Judicial applies. In short, in the scenario of article 29.2, it is irrelevant whether the grounds for disqualification or challenge (recusación) number one, two, or fifty. It is the Law that determines how the Tribunal is constituted; the Presidency of the Chamber has understood this at various points in time, and in one of the challenged rulings, precedents were cited to Justice Garro Vargas.
LXXXIV. — DOCUMENTATION SUBMITTED TO THE FILE. The parties are advised that, if they have submitted any document in paper form, as well as objects or evidence contained in any additional device of an electronic, computer-based, magnetic, optical, telematic, or new-technology nature, such materials must be retrieved from the clerk's office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, any material not retrieved within this period will be destroyed, pursuant to the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial," approved by Corte Plena in session N° 27-11 of August 22, 2011, article XXVI, and published in the Boletín Judicial number 19 of January 26, 2012, as well as pursuant to the agreement approved by the Consejo Superior del Poder Judicial in session N° 43-12 held on May 3, 2012, article LXXXI.
Por tanto:
Admissibility:
By unanimous vote, the following are rejected outright:
Regarding constitutional challenge (acción de inconstitucionalidad) 19-1720-0007-CO, the claims seeking to protect employees (servidores), officials (funcionarios), pensioners (pensionados), and retirees (jubilados) in general are summarily dismissed for lack of standing (legitimación), pursuant to Article 75, paragraph 1) of the Ley de la Jurisdicción Constitucional, in those matters where the claimant cannot derive protection (tutela) or relief of her right, as this does not constitute a reasonable means for safeguarding that right.
Procedural Legislative Defects:
By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the consolidated actions are dismissed as to the alleged procedural defects. Justice Castillo Víquez provides additional reasoning regarding the violation of the principle of publicity (publicidad). Justices Hernández López and Garro Vargas file separate opinions. With respect to the alleged defects of the Special Committee session of July 27, 2017, Justice Garro Vargas provides different reasoning.
Justices Salazar Alvarado and Hernández Gutiérrez dissent and declare that the challenged law presents an essential procedural defect consisting of the failure to consult the Poder Judicial regarding the text approved by Parliament by an absolute rather than qualified majority—a defect that affects it in its entirety (Article 167 of the Constitución Política), as it affects the Poder Judicial's organization, structure, functioning, and independence; for this reason, they deem it unnecessary to analyze other procedural and substantive defects raised by the claimants, except those on which a position must be taken in order to achieve a fully concurring vote (Article 60.2, Código Procesal Civil).
Regarding the substantive claims:
The consolidated constitutional challenges are declared partially granted, and accordingly 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 solidary and redistributive contribution (contribución especial solidaria y redistributiva) are annulled to the extent they exceed 50% of the gross pension amount (monto bruto de la pensión) to which the retiree or pensioner is entitled. However, pursuant to Article 91 of the Ley de la Jurisdicción Constitucional, in order to avoid serious disruptions to security, justice, or social peace, the Court calibrates and dimensions the effects of this ruling such that, beginning the month following notification of the judgment, the competent authorities must make the corresponding adjustment in accordance with this judgment, so that the tax burdens (cargas tributarias) on the amount of retirements and pensions do not exceed 50% of the gross amount received by the retiree or pensioner.
Justice Castillo Víquez provides different reasoning. Justice Garro Vargas, on her own reasoning, declares this aspect of the constitutional challenge granted, ordering the partial annulment of the provisions in Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial; she further notes that the unconstitutionality she declares affects the excess of the special solidary contribution beyond that 5% and not the remaining deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial. Justice Hernández Gutiérrez provides additional reasoning. Justice Rueda Leal and Justice Hernández López dissent and declare this aspect denied, as they did in judgment No. 2020-19274 of 16:30 hours of October 7, 2020, because, according to the express text of Article 67 of ILO Convention C102 of 1952 on 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 provisions.
Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the paragraph contained in Article 239 of the Ley Orgánica del Poder Judicial, as amended by the challenged Law number 9544, is declared unconstitutional and consequently annulled; the paragraph reads: "Based on the results of actuarial studies, and with authorization from the Superintendencia de Pensiones, the Junta Administrativa may modify the initial parameters established in this law regarding eligibility requirements, the benefits profile, as well as contributions (aportes) and cotizaciones of judicial employees and the retirements and pensions provided for in the law, whenever this is necessary to guarantee the actuarial balance of the Scheme." Third. By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the phrase "(...) the present reform shall not be applied to their detriment," contained in Transitorio II of Ley 9544 of April 24, 2018, is interpreted to refer exclusively to persons who have already vested 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 imposed for the purpose of obtaining the survivor's pension (pensión por sobrevivencia) derived from Article 229 of Ley 9544 of April 24, 2018, is declared unconstitutional; in such case, the 10-year requirement for acquiring that right, as set forth in Article 230 of Ley 7333 of May 5, 1993 in the version prior to the amendment, remains in force.
The consolidated constitutional challenges are declared denied, and accordingly it is ordered:
First: By majority (Castillo Víquez, Salazar Alvarado, Araya García, Garro Vargas, and Hernández Gutiérrez), the actions are declared denied with respect to the allegations concerning the failure to account for gender differentiation in the retirement age between women and men. Justices Salazar Alvarado and Hernández Gutiérrez deny this aspect of the action solely on formal grounds due to the absence of technical studies. Justice Garro Vargas provides different reasoning. Justice Rueda Leal and Justice Hernández López dissent and declare the consolidated actions partially granted due to the existence of an unconstitutional omission (inconstitucionalidad por omisión) in Ley 9544, in that it does not contemplate gender criteria for setting a differentiated age so that women who contribute to the Régimen de Jubilaciones y Pensiones del Poder Judicial may retire or receive a pension with a shorter service period.
Justice Hernández López also dissents and declares the consolidated actions partially granted because:
Second: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the consolidated actions are declared denied on all other claimed grounds.
Justices Castillo Víquez and Rueda Leal and Justices Hernández López and Garro Vargas file separate opinions.
The declaration of unconstitutionalities, with the exception of what is indicated in the first point of the substantive claims in this operative part—which takes effect beginning the month following notification of the judgment—shall have declaratory and retroactive effects as of the date the law entered into force, all without prejudice to vested rights (derechos adquiridos) acquired in good faith and consolidated legal situations (situaciones jurídicas consolidadas). Notice shall be given to the Legislative and Judicial Branches and to the Junta Administradora del Régimen de Jubilaciones y Pensiones del Poder Judicial. A summary of this pronouncement shall be published in the Diario Oficial La Gaceta and the full text shall be published in the Boletín Judicial. 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 reasoning of Justice Castillo Víquez regarding the principle of publicity In addition to the reasons given in the judgment for reaching the conclusion that there are no procedural defects in relation to the non-publication of the substitute text, I consider that the Reglamento de la Asamblea Legislativa only requires the publication of the bill (proyecto de ley), not of the motions (mociones) or substitute texts approved at various parliamentary stages (see Articles 115 through 117, 121, and 130 of the Reglamento de la Asamblea Legislativa). Furthermore, committee opinions (dictámenes) on a bill are only published if the committee so agrees (see Articles 83 and 131 of the Reglamento de la Asamblea Legislativa), which confirms that, unless expressly authorized by a provision of the Parliamentary Statute (Estatuto Parlamentario), the approval of motions or substitute texts need not be published in the official gazette La Gaceta.
An additional reason to follow this line of argument is that, viewed from another angle, the publication of substitute texts approved within parliamentary bodies is pointless, for the simple reason that it would only make sense when novel concepts or regulations are introduced therein—an action prohibited by the Law of the Constitution as a violation of the principle of subject-matter connection (principio de conexidad)—or when the parliamentary body so resolves for a specific or necessary purpose in furtherance of parliamentary work. Furthermore, the Court has held that failure to publish at a given procedural stage does not always constitute an invalidating defect of the legislative procedure. In this regard, it stated: "The Court does not consider that this circumstance injures the principle of publicity, characteristic 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 publicity to which the work of the legislative bodies is itself subject.
The Court further notes that, once the proposal was admitted (in the case covered by this opinion), and the committee opinion referred to in subparagraph 3) of Article 195 having been rendered, it was published, as was customary. Consequently, the Court reaches the conclusion that the failure to publish the constitutional reform proposal at issue here does not constitute a defect that invalidates the procedure." (See Voto 11560-2001.)
Furthermore, it must be borne in mind that the principle of publicity in parliamentary procedure is not exhausted by the publication of a bill, but extends far beyond it, inasmuch as the Legislative Assembly, as a plural and democratic body, is subject to that principle at every stage of its proceedings. Consistent with the foregoing, the Political Constitution, in its Article 117, provides that sessions of the Legislative Assembly are public, except that, for highly qualified reasons of general convenience, they may be declared secret by a vote of no fewer than two-thirds of the deputies present. This publicity of parliamentary work refers not only to the right of the inhabitants of the Republic to attend the public galleries of the Legislative Assembly—which may be cleared only by the President of the Legislative Assembly when, through signs of approval or disapproval—shouts, whistling, banging, or any other disorderly demonstration—the Assembly's work is interrupted (see Article 27, paragraph 12 of the Rules of Procedure of the Legislative Assembly); the same applies in the case of Standing Committees with Full Legislative Authority, whose presidents likewise hold this power (see Article 56, paragraph j of the Rules of Procedure of the Legislative Assembly)—but also to the right of mass communications media to report on parliamentary work through various channels—radio, television, the Internet, the written press, etc.—and, indeed, to the interest of political parties holding parliamentary representation and of the deputies (male and female) in having their interventions—oral, written, or otherwise—disseminated by all available means, thereby fulfilling a dual purpose: on the one hand, enabling citizen oversight of the activities carried out by members of Parliament, which is crucial in any democratic system, and, on the other, ensuring accountability—in this case, immediate accountability—of the deputies to the citizenry. In light of all the foregoing, the act of publishing a bill is but one of the many expressions of the principle of publicity in parliamentary procedure.
On the other hand, requiring the publication of substitute texts runs counter to one of the essential characteristics of parliamentary law: its flexibility and adaptability (ductibilidad o flexibilidad), which adversely affects parliamentary work and, in some cases, may even cause political agreements that have been reached to collapse. It likewise runs counter to the very purpose of parliamentary law. As is well known, the purpose of this body of law is to enable Parliament to exercise its powers (legislative, self-regulatory, political oversight, integrative, jurisdictional, and administrative), and in particular: to serve as 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, fundamental political decisions, which are expressed in final parliamentary acts, whether those acts take the form of a legislative decree or a legislative agreement.
It must not be overlooked that, by reason of parliamentary dynamics, political agreements within Parliament are subject to constant precariousness until they are materialized, not only because there is a specific and opportune moment for their finalization, but also because of the permanent tension in which political actors find themselves as a result of the large number of political variables they are managing simultaneously, which means that the longer the time required to finalize a political agreement, the greater the likelihood that it will fall apart. Hence the need for timely, and in some cases immediate, execution, since political reality changes constantly and may undermine what has been agreed upon. For this reason, when the Legislative Assembly is compelled—under the pretext of observing the principle of publicity in parliamentary procedure—to publish substitute texts or motions in the official gazette La Gaceta, which entails a significant delay in the adoption of the political decision given the time that such publication requires, this runs counter to the very nature of the parliamentary body and its dynamics, to one of the defining characteristics and to the purpose of parliamentary law, all of which amounts to an absurdity in an essentially political body—some maintain that the functioning of the Chamber is a reflection of the continuation of electoral competition on a different plane—such as the Legislative Assembly.
Fernando Castillo V.
Note of Justice Rueda Leal. In the case sub iudice, I clarify that, apart from my dissenting vote, while I share the majority's view in dismissing the claims raised by the petitioning parties, I consider it essential to set forth the following particular observations regarding the reasoning underlying that conclusion.
1- Regarding judgment no. 2018005758 of 15:40 hours of April 12, 2018, cited in the principal vote.
This ruling is cited repeatedly in the principal decision in this proceeding, and I therefore consider it appropriate to draw attention to what I recorded on that occasion:
"XXII.- Note of Justice Rueda Leal. With regard to the publicity of the substitute text of September 13, 2016, I concur with the majority vote, inasmuch as, pursuant to reiterated constitutional jurisprudence—which I consider altogether inappropriate to depart from (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)—optional constitutional consultations are confined to examining what the consulting parties have specifically questioned, without the Court, in this procedural avenue, extending constitutional review motu proprio to other matters. Thus, as regards the claim raised, the reasoning outlined in this decision follows the cited jurisprudential line and is correct, and I therefore subscribe to it.
On another point, I clarify that the right to a pension is a subjective right conditioned by the sustainability of the pension scheme. The right to a pension may be modified or restricted for reasons of public interest supported by technical studies, such as the very viability of the scheme or fund, provided that such modifications do not affect its minimum content. In that regard, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, bearing in mind that the essential differences between the historical moment when it was agreed upon (the year 1952) and the current situation cannot be overlooked—a situation in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitively be taken into account in the interest of a pension scheme founded on the principle of social solidarity and, I repeat, financial sustainability.
Thus, according to the 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). For its part, 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). 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, 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)."
In this regard, I note that, in the face of the imminent insolvency problem of the Judiciary Pension and Retirement Scheme, the legislature was under an obligation to take the necessary measures to ensure its sustainability. It is likewise essential to consider that the principles of sustainability and social solidarity are inherent in every social pension scheme and must therefore be weighed when assessing the constitutionality of the provisions that reformed the scheme. In that regard, I reiterate my dissenting vote to judgment no. 2018-19030 of 17:15 hours of November 14, 2018 (which I also cited in my dissenting vote to judgment no. 2020019274 of 16:30 hours of October 7, 2020):
"Dissenting vote of Justice Rueda Leal. With the customary respect, I dissent on three specific matters, as I set forth below.
(…)
Concerning the nature of retirement or pension benefits, I expressed the following in judgment no. 2018-5758 of 15:40 hours of April 12, 2018:
'…I clarify that the right to a pension is a subjective right conditioned by the sustainability of the pension scheme. The right to a pension may be modified or restricted for reasons of public interest supported by technical studies, such as the very viability of the scheme or fund, provided that such modifications do not affect its minimum content. In that regard, ILO Convention 102 must be examined in its entirety and in accordance with the principles that inform it, bearing in mind that the essential differences between the historical moment when it was agreed upon (the year 1952) and the current situation cannot be overlooked—a situation in which phenomena such as the significant increase in life expectancy and a lower birth rate must definitively be taken into account in the interest of a pension scheme founded on the principle of social solidarity and, I repeat, financial sustainability.
Thus, according to the 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). For its part, 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). 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, 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 benefit—which is not based on individual capitalization—derives from the principle of social solidarity, intimately linked to the social vocation of the Costa Rican State. The normative basis for this assertion is found in the Political Constitution:
'ARTICLE 50.- The State shall seek the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most equitable distribution of wealth. (…)
"ARTICLE 74.- The rights and benefits referred to in this Chapter are non-waivable. Their enumeration does not exclude others derived from the Christian principle of social justice and indicated by law; they shall apply equally to all factors participating in the production process and shall be regulated by social and labor legislation, so as to pursue a permanent policy of national solidarity." As stated above, this constitutional framework has been developed by the Court in order to define the contours of the solidarity principle. A clear illustration of that development is the following:
"III.- On the principle of solidarity. A proper reading of our constitutional text necessarily leads to the conclusion that the system of fundamental rights established therein is not grounded in utilitarian individualism, but rather in a conception of the human being within the framework of the society in which he or she operates. The Political Constitution of 1949 proceeds from the notion that a human being cannot develop fully on his or her own, but requires the participation of all other members of society. Indeed, constitutional provision number 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 cooperation of its inhabitants. In other words, in order to achieve a more homogeneous social stratification, individuals must contribute according to their means, for the benefit of those who have less.
This is a fundamental right of persons who occupy the lower strata, and a duty of all, primarily those who benefit most from the economic system. Wealth in a society is produced not only by those who own the means of production, but also by those who contribute to it through their labor, through their work. Consequently, the benefits produced by the market must be redirected so that they do not accrue solely to certain social classes. When this principle is related to that of social justice — enshrined in provision 74 of the Constitution, under which persons must collaborate reciprocally in order to preserve the human dignity of all members of the community — it becomes clear that the framers sought to foster a society in which solidarity would be the general rule of coexistence; where the making of small sacrifices in favor of great social goals would take precedence over individual interests; this is what is commonly known as the social and democratic State governed by the rule of law.
One may therefore affirm that solidarity among members of the community 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 the same vein, judgments of this Court numbers 1441-92, 5125-93)" (Judgment No. 3338-99 of 18:45 hours of May 5, 1999).
From these premises, I consider that the analysis of the unconstitutionality action must be carried out from a different perspective than the one adopted by the majority opinion. Indeed, I note that the judgment assessed only partially the legally relevant elements for the decision, inasmuch as it focused solely on the petitioner's objection regarding the principle of non-retroactivity (irretroactividad), without engaging in any substantial reflection on the elements necessary for a pension system to be sustainable and consistent with the principle of social solidarity. In my view, a comprehensive and thorough analysis of the legal question raised must be conducted, so as to avoid an improper extension of constitutional principles, as occurred in this case with the principle of non-retroactivity. In other words, the Court should have first analyzed the nature of a pension system and then examined the issue of the principle of non-retroactivity.
In the present case (sub examine), I consider that a pension system would be constitutionally valid only insofar as it were sustainable and respected the principle of social solidarity. In other words, if the legislature were to create an unsustainable system — with no mechanism to maintain its budgetary balance, or one that is openly regressive — then such a system would be unconstitutional specifically with regard to that omission, for failing to comply with the stated postulates.
From the foregoing, I derive that the principle of social solidarity and the principle of sustainability of the system are inherent in every social pension system from the moment of its creation and must be taken into account when interpreting the provisions of such systems, since they constitute tools that make the system viable in the long term and enable compliance with the Social State governed by the rule of law.
The requirement that the system be sustainable is not a matter within the legislature's discretion, but a requirement also imposed by material reality. That reality could not be denied even in the majority opinion, which had to yield to the hypothesis of a pension system collapsing:
"For this Tribunal, only in an extraordinary case — a financial debacle of the State or of the respective retirement and pension system — duly proven — through the technique of review of determinative facts — would it be possible to modify the original conditions under which the retirement benefit or pension was granted, a scenario that is not present in this case despite the fiscal crisis affecting the central government — a fiscal deficit exceeding 3% of G.D.P. and which could reach 7% — since, if adequate and effective measures are adopted to reduce the aforementioned deficit in the short term, it is possible to comply with the constitutional principle of financial equilibrium enshrined in constitutional provision number 176." In other words, the majority position would indeed accept legislation contrary to the principle of non-retroactivity in the event of a "debacle." I consider such a contradiction unnecessary, because I proceed from the premise that sustainability is a principle inherent in every solidary pension system and obliges all of its participants — each and every one of them — to contribute to its maintenance.
Indeed, the sustainability of the system permeates the legal nature of the pensions and retirement benefits linked to it. The hypothetical case posed by the majority of this Court illustrates that link clearly. The satisfaction of the pension or retirement benefit is conditioned upon the sustainability of the pension system. If the system becomes insolvent, as in the case of the "debacle," then all participants in it will see their claims frustrated. It is therefore feasible — indeed necessary — to modify the conditions of all pensions or retirement benefits, provided that the modifications are aimed at protecting the sustainability of the system 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 the patrimonial rights that have already been received by the beneficiaries of a system. In that sense, new legislation could not be enacted to seek recovery of what was justly paid on the basis of the repealed legislation."
With respect to the procedural defect consisting in the failure to suspend processing of the bill for a period of eight business days pursuant to the special procedure, I note that I did indeed sign judgment No. 2012004621 of 16:00 hours of April 10, 2012, which emphasized: "The duty of the various legislative bodies to adhere, zealously and scrupulously, to the special procedure previously designed (…) Consequently, when faced with a special and expedited legislative procedure, the time limits, stages, and requirements previously established must be subject to a restrictive and rigorous interpretation, as the margin of flexibility admissible in contrast to ordinary procedures — through expansive interpretations — decreases markedly in order to avoid an exception to the exception and, in general, a departure from the procedural path created, exceptionally, by a qualified majority." (Emphasis not in the original.) Precisely, the fact that the said margin decreases markedly does not mean that there is no margin at all.
Now, in the present case (sub lite), in accordance with the reasoning of the majority opinion, the defect at issue is not of such a magnitude as to support a finding of constitutional irrelevance — with which I agree — since, I reiterate, even in the special procedures in question, albeit with less room, constitutional review always allows for a distinction between substantive defects and those that are not.
Regarding the nature of the special, solidary, and redistributive contribution (contribución especial, solidaria y redistributiva), the final text of the majority opinion cites case law according to which such a contribution is not assimilable to a tax, and concludes that it constitutes a constitutionally valid limitation on the right to retirement, arising from the social character of that right. It then states that it is not a tax but rather 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 sovereign power, which may only be created through a formal act of law. Likewise, it notes that it is a levy destined for an economic and social purpose.
In this regard, I must state that, for the purposes of this unconstitutionality action, my position is that the special, solidary, and redistributive contribution is parafiscal in nature and constitutes a type of levy (tributo). Precisely, payment is mandatory for those who fall within the scope of the norm and, pursuant to provision 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), the resources obtained therefrom are deposited into the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) — that is, into the very fund to which the contributors belong. Moreover, this type of contribution must be legally authorized, and therefore the Legislative Assembly (Asamblea Legislativa) is competent to establish the levy and define its elements.
On the other hand, while it is alleged that there is double taxation (doble imposición) with the general contribution (cotización general) and the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva), I clarify that the latter progressively taxes only the highest pensions and retirement benefits, with the aim of ensuring the sustainability of the pension scheme to which they belong. In that regard, I consider that this is not, a priori, a case of double taxation, but rather the establishment of an additional tax burden on those with greater economic capacity. While both mechanisms form part of the income of the Fondo de Jubilaciones y Pensiones del Poder Judicial, it is equally true that they are based on different premises: on the one hand, there is the general contribution of the pensioner or retiree to the scheme, and on the other, the contribution that must be paid by those with the highest pensions.
In that sense, Article 71.1 of ILO Convention C102 — the Social Security (Minimum Standards) Convention — provides that the cost of the benefits granted under that convention and the costs of administering them "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 categories of persons protected." In other words, that international instrument allows for the financing of the scheme through two means simultaneously, so that persons with lower incomes are not burdened with excessively onerous charges. Accordingly, in addition to the general contribution of workers and pensioners, it is appropriate to impose a parafiscal tax burden aimed solely at the highest pensions and retirement benefits that were granted under previously much more favorable conditions.
Additionally, I must clarify that, for the purpose of modifying the conditions of a pension scheme and assigning special contributions to correct any insolvency situation, it is indeed necessary to demonstrate through technical studies the insolvency of the scheme and the suitability of the corrective measures. The foregoing is indispensable, unless the benefits in question are provided for in norms that are absolutely and manifestly unconstitutional, in which case the magnitude of the defect warrants the suppression of the provision without recognizing any rights. In this regard, it is not possible to perpetuate legal provisions that are plainly unlawful from their very foundation — for example, a lifetime pension (pensión vitalicia) for the children of legislators, or the receipt of absurd and exorbitant benefits. In these latter cases, I have maintained that their effects should properly be regarded as legally nonexistent from the very moment of their creation. On this subject, I set forth different reasoning in judgment No. 2020019274 of 16:30 hours of October 7, 2020, in the following terms:
"V.- Different reasoning with respect to the substantive claims related to Laws No. 9381 and 9388. Before addressing the substantive arguments, 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 replace it with one based on the increase in the cost of living. Precisely, the crux of the matter consists in determining whether such reform is consistent with Constitutional Law.
In the first place, I consider that the 30% annual increase enjoyed by certain individuals under the scheme known as Hacienda-Diputados, in itself represents a gross and unjustifiable abuse — a violation of the constitutional order of such overwhelming magnitude that, from its very inception, it constitutes what I call 'a legally nonexistent legal norm' on grounds of unconstitutionality, applying mutatis mutandi the doctrine of the legally nonexistent juridical act on grounds of legality, a position supported by a significant sector of legal scholarship.
As occurs in the sub examine, given the particular gravity of the violation of the constitutional order with respect to the especially excessive privilege conferred upon a particular group (nothing less than an annual 30% increase in pensions without any consideration of the state of the economy and the real value of the pension granted), I consider that this is not merely a case of the nullity of a regulation due to an ordinary judicial declaration of unconstitutionality, but rather that, in this extraordinary situation, the restoration of the constitutional order demands a far more drastic action than simple nullity. Inexistence designates a profoundly egregious unconstitutionality of the challenged norm (and indeed, in another proceeding, it could refer to an act) — an extreme degree of nullity on grounds of unconstitutionality, from which one may discern the absence of an essential element at the very moment of the norm's creation.
Precisely because of that extreme defect at the very genesis of the norm, it is inappropriate to preserve the effects arising from manifestly unconstitutional, unreasonable, and entirely unjustified legal provisions, such as the economic benefits granted in contravention of the most basic elements of social justice and the sustainability of a pension scheme. These are provisions that are plainly unconstitutional at their foundation, and accordingly the excessive privileges granted by them must be regarded as legally nonexistent.
The foregoing becomes even more evident and apparent in light of the harsh economic reality of the country and the conditions of the other schemes. Therefore, a legislative reform that replaces that fixed revaluation method with one grounded in objective criteria — such as the increase in the cost of living — not only corrects an excessive and definitively unconstitutional privilege in violation of the principle of sound management of public funds, but also contributes to social justice.
Following the same line of reasoning as my dissenting vote in judgment No. 2018-19030 of 17:15 hours of November 14, 2018 (which I cited above) and the reasoning I developed earlier regarding the principle of non-retroactivity, I consider that sustainability is an inherent principle of any solidarity-based pension scheme. Accordingly, I consider it constitutionally valid, pursuant to the principle of social solidarity, to impose burdens and modify the conditions of the highest pensions or retirement benefits, provided that the adjustments are aimed at safeguarding the sustainability of the pension scheme and that both the principle of reasonableness and proportionality and the fundamental right to human dignity of elderly persons are respected. Note that, as a matter of principle, it is valid for a pension increase mechanism to ensure that the beneficiary's pension maintains its real value in relation to purchasing power and the vicissitudes of time, but not for the pension or its methodology of increase to serve as an instrument to unjustifiably and arbitrarily enrich a few individuals.
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 protect an increase of such magnitude for a restricted group of individuals. It is important to emphasize that, regarding pension amounts, as I indicated in the preceding considerando, the legislature, through other norms, established minimum amounts exempt from the special contributions and a gradual scale of progressive impact, which, from my perspective, guarantees more than dignified amounts for elderly persons, especially in the cases of those who benefited from annual 30% increases over time and have the highest pensions. In that sense, if the laws that modify the legal situations of beneficiaries safeguard the dignity of the person while being proportionate, reasonable, and justified, a purported immutability of the legal order by invoking consolidated legal situations is untenable, since these must yield to the principles of social solidarity and sound management of public funds.
From the foregoing, the legislature is free to regulate the mechanisms for adjusting pensions of schemes that are in a sustainability crisis or that grant openly disproportionate and grotesque privileges." Likewise, I must note that, as I stated in my dissenting vote on Considerando XLI of this ruling, the 50% ceiling set by the Majority as the maximum limit on contributions and deductions was based on a forced interpretation of Article 71.2 of ILO Convention C102, given that Article 67 of that international instrument is the one applicable to reductions in pensions.
In this regard, Article 71.2 provides:
"2. The total of the 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. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in compliance with this Convention may be taken into account, except family benefit and employment injury benefit, where the latter is provided by a special branch." For its part, Article 67 of the Convention provides:
"Article 67 With respect to any periodical payment to which this article applies:
(a) the rate of the benefit shall be determined by a prescribed scale or by an official authority in conformity with prescribed rules; (b) the rate of the benefit may be reduced only to the extent by which the other resources of the family of the beneficiary exceed prescribed substantial amounts or amounts fixed by the competent authority in conformity with prescribed rules; (c) the total of the benefit and any other resources, after deduction of the substantial amounts referred to in subparagraph (b), shall be sufficient to maintain the family in health and decency, and shall be not less than the corresponding benefit calculated in accordance with the requirements 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(b), for Part III; (ii) Article 27(b), for Part V; (iii) Article 55(b), for Part IX; (iv) Article 61(b), for Part X.
SCHEDULE APPENDED TO PART XI — PERIODICAL PAYMENTS TO STANDARD BENEFICIARY
| Parts | Contingencies | Standard Beneficiary | Percentage |
|---|---|---|---|
| III | Sickness | Man with wife and two children | 45 |
| IV | Unemployment | Man with wife and two children | 45 |
| V | Old age | Man with wife of pensionable age | 40 |
| VI | Employment injury and occupational diseases: | ||
| Incapacity for work | Man with wife and two children | 50 | |
| Invalidity | Man with wife and two children | 50 | |
| Survivors | Widow with two children | 40 | |
| VIII | Maternity | Woman | 45 |
| IX | Invalidity | Man with wife and two children | 40 |
| X | Survivors |
Widow with two children 40 Consequently, as can be observed from a reading of the cited provisions, the final wording adopted by the Majority unnecessarily changes the legal-normative meaning of Article 71.2 to suit the specific case and fix a maximum percentage of 50%, thereby ignoring the existence of Article 67 of the international instrument, which specifically governs the limitations that may be imposed on pensions. In addition, it should be noted that Article 71.2 refers to the percentage of insurance contributions borne by salaried employees in relation to the total resources allocated to that protection; that is, that provision governs "salaried employees" (the economically active population), but not "pensioners or retirees." On the basis of the foregoing, and consistently with the position I have maintained, there is no showing that Articles 236 and 236 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) automatically exceed the 40% threshold of a reference salary (salario de referencia) set forth in Article 67 of ILO (OIT) Convention C102.
It should further be noted that the 55% ceiling established in Articles 236 and 236 bis of the Organic Law of the Judicial Branch relates to the gross pension amount, whereas the conventional 40% relates to a reference salary; accordingly, it is at the level of application of the statutory provision that one must assess whether, in any given case, the threshold contained in the international instrument overrides the benchmark set out in the legislation.
On the basis of the foregoing, I dissent from the assertion in the final version of the Majority's opinion to the effect that a contribution becomes confiscatory only when it exceeds 50% of the charges a person must bear on his or her pension or retirement benefit, because, as I noted above, I believe the applicable benchmark is a different one, and there is no showing of an automatic and evident violation through the content of Articles 236 and 236 bis of the Organic Law of the Judicial Branch.
In these considerandos it is asserted that contributions and charges may not exceed 50% of the gross pension amount, in keeping with the ruling in judgment n.º 2020-19274; however, on this point I reiterate my position that the 55% ceiling regulated in Articles 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, in addition to the mandatory contribution to the scheme, a special additional contribution on the highest pensions. I therefore refer to the reasoning set out in the preceding section regarding these matters.
Now, it is important to mention that law n.º 9544, in adding Article 236 bis, provided that the special contribution applied to the portion of a pension exceeding ten base salaries (salarios base) of the lowest-paid position in the Judicial Branch (at the time of entry into force of that law, on pensions above ¢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 paragraph (a) of that provision was subsequently amended by law n.º 9796 of December 5, 2019, and set the contribution as applying from the portion exceeding six base salaries of the lowest-paid position in the Judicial Branch (as of the first half of 2021, on pensions above ¢ 2.602.800,00 according to the salary index https://gestionhumana.poder-judicial.go.cr/index.php/indice-salarial).
In addition, law n.º 9544 regulated the application of the special contribution on a graduated basis: "a) On the portion exceeding the ceiling established in Article 225 and up to twenty-five percent (25%) of said ceiling, contributors shall pay thirty-five percent (35%) of such excess. b) On the portion exceeding the preceding bracket and up to an additional twenty-five percent (25%), contributors shall pay forty percent (40%) of such excess. c) On the portion exceeding the preceding bracket and up to an additional twenty-five percent (25%), contributors shall pay forty-five percent (45%) of such excess. d) On the portion exceeding the preceding bracket and up to an additional twenty-five percent (25%), contributors shall pay fifty percent (50%) of such excess. e) On the portion exceeding the preceding bracket, contributors shall pay fifty-five percent (55%)." Therefore, the exempt amount and the graduated contribution applied to pensions above four million colones guarantee amounts that are more than sufficient for pensioners and retirees to meet their needs, including elderly persons.
Likewise, I consider the special contribution to be progressive and graduated as applied to the highest pensions, without it, together with all other contributions, charges, and deductions, exceeding 55% of the total gross pension amount. In that regard, not only was it not demonstrated that the pension amount prevented pensioners from living with dignity or that it was insufficient, but it also falls within the sphere of application of the statutory provision to assess whether, in any given case, the threshold set forth in the international instrument (Article 67 of ILO Convention C102) overrides the benchmark established in the legislation.
I likewise reiterate that the special contribution imposed on the highest pensions constitutes a measure consistent with the principle of social solidarity and, moreover, is reasonable in light of the imminent insolvency problem that the Judicial Branch Retirement and Pension Scheme (Régimen de Pensiones y Jubilaciones del Poder Judicial) faced.
Finally, I do not consider the deduction of five per thousand (5 per 1,000) from salaries and pensions intended to finance the operations of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial) to be manifestly disproportionate or unreasonable. Likewise, should any of the parties consider that it exceeds the maximum for contributions and deductions, they may file the corresponding claims so that these may be adjusted accordingly.
With respect to this considerando, I must emphasize that constitutional Article 34 enshrines the principle of non-retroactivity (irretroactividad) and the protection of vested rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas):
"ARTICLE 34.- No law shall be given retroactive effect to the detriment of any person, or of their vested patrimonial rights or consolidated legal situations." In relation to the content of this provision, the Court stated in judgment n.° 2765-97 of 3:03 p.m. on May 20, 1997:
"The concepts of 'vested rights' and 'consolidated legal situations' are closely related in constitutional doctrine. It is fair to say that, in general terms, the former denotes a circumstance that has been consummated insofar as a thing — whether material or immaterial, whether a previously alien asset or a previously nonexistent right — has entered (or impacted upon) a person's patrimonial sphere, such that that person experiences a discernible advantage or benefit. For its part, a 'consolidated legal situation' represents not so much a patrimonial gain, but rather a state of affairs that has been fully defined in terms of its legal characteristics and effects, even if those effects have not yet been extinguished. What is relevant with respect to a consolidated legal situation is precisely not whether those effects are still ongoing or not, but rather that — by virtue of a statutory mandate or a judgment so declaring — a rule has already come into legal existence, clear and defined, connecting a factual predicate (a conditioning fact) to a given consequence (a conditioned effect).
From this perspective, a person's situation is expressed by a logical proposition of the type 'if…, then…M,' that is: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must necessarily follow as well. In both cases (vested rights or consolidated legal situations), the legal order protects — rendering it untouchable — the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty." In this regard, I believe it is important to clarify that amounts received prior to the entry into force of law n.º 9544 do constitute vested rights and, in fact, the challenged provisions do not affect them, as they have already entered the patrimonial legal sphere of the pensioners. However, it is not tenable to argue that the pensions they have received constitute a vested right to receive the same amount in future months, since those are not consummated circumstances and have evidently not yet entered the person's patrimonial sphere.
Now, regarding the alleged violation of consolidated legal situations, although as a general principle the conditions under which persons retired or received their pensions must be respected, this does not mean that progressive tax burdens intended to correct any insolvency situation of the scheme and thereby contribute to its sustainability cannot be imposed on the highest benefits. Likewise, changing the conditions for retirement eligibility applicable to active public servants is not unlawful either, because they hold only an expectation of a pension or retirement benefit, except when they are on the verge of acquiring the right (within the following 18 months, as the Court's case law has upheld and as stated in Considerando LXIX of this judgment).
These considerandos address the arguments raised by the petitioning parties to the effect that the application of Articles 236 and 236 bis of the Organic Law of the Judicial Branch to elderly retirees and beneficiaries of the Judicial Branch Retirement and Pension Scheme is abusive and arbitrary, since it worsens their socioeconomic conditions and has entailed an abrupt reduction in their income, thereby violating national and international regulations concerning the protection of the elderly, their right to quality of life, and their right to enjoy a dignified old age.
With respect to these matters, I refer to the considerations I developed in the preceding sections concerning general and special contributions, as well as other charges. I reiterate that the 50% limit set by the Majority as the maximum for contributions and deductions was based on a strained interpretation of Article 71.2 of ILO Convention C102, since Article 67 of that international instrument is the provision that applies to reductions in pensions. In that regard, there is no showing that Articles 236 and 236 bis of the Organic Law of the Judicial Branch automatically exceed the 40% threshold of a reference salary set forth in Article 67 of ILO Convention C102. It should further be noted that the 55% ceiling established in Articles 236 and 236 bis of the Organic Law of the Judicial Branch relates to the gross pension amount, whereas the conventional 40% relates to a reference salary; accordingly, it is at the level of application of the statutory provision that one must assess whether, in any given case, the threshold contained in the international instrument overrides the benchmark set out in the legislation.
Furthermore, there is no basis for claiming that the challenged provisions violate the international protections afforded to older adults (personas adultas mayores), since not only are measures being taken to safeguard the sustainability of the scheme, but also, in principle, a sufficient income is being guaranteed to pensioners (personas pensionadas) and retirees (jubiladas). In this regard, I reiterate that the amount exempt from the special contribution (contribución especial) and its graduated levy applied to pensions exceeding four million colones contemplates sums more than adequate for meeting the needs of an older adult.
With regard to my reasoning for finding inadmissible the petition for a declaration of unconstitutionality by connection (inconstitucionalidad por conexidad) of law n.º 9796 of December 5, 2019, I limit my arguments to the reasoning set forth in the majority opinion, with the exception of what is raised in the last paragraph, given that the failure to meet the requirement of the cited article 89 constitutes more than sufficient grounds for dismissing this aspect of the action.
With regard to this Considerando, I clarify that determining whether or not there were changes to the employment contracts (contratos de trabajo) of Poder Judicial employees is a matter to be resolved through the ordinary courts (vía común), and not through an action of unconstitutionality (acción de inconstitucionalidad).
Paul Rueda L.
Dissenting vote (voto salvado) of Justice Rueda Leal with respect to Considerando XLI. In the matter under review (sub examine), the unconstitutionality of law n.º 9544 is alleged, insofar as it amended Article 236 of the Ley Orgánica del Poder Judicial and added Article 236 bis to that body of law. The complaint is that both articles establish a maximum cap (tope máximo) of 55% in deductions (deducciones) with respect to the gross amount (monto bruto) of the retirement pension, which the petitioners consider excessive and contrary to the fundamental right to retirement.
The challenged provisions read as follows:
"Article 236 — The Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) shall have the following income:
In no case may the sum of the mandatory contribution (contribución obligatoria) and the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva), and in general, the total of all 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 to which the beneficiary is entitled by right. In cases where 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 through the mandatory contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund.
Article 236 bis — Special, Solidarity-Based, and Redistributive Contribution of Pensioners and Retirees In addition to the standard contribution (cotización común) established in the preceding article, pensioners and retirees whose benefits exceed the amounts to be established shall contribute in a special, solidarity-based, and redistributive manner, in accordance with the following table:
In no case may the sum of the special, solidarity-based, and redistributive contribution and the total of all 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 to which the beneficiary is entitled by right. In cases where 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 through the special, solidarity-based, and redistributive contribution established in this law shall be deposited into the Judicial Branch Retirement and Pension Fund." With regard to the maximum percentage of deductions from pensions, the majority opinion partially quotes the provisions of judgment n.º 202019274 of 16:30 hours on October 7, 2020. In addition, it holds that Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial (as amended by the challenged law n.º 9544) are unconstitutional, since both set 55% as the maximum cap for legal deductions, which exceeds by 5 percentage points the maximum established in the cited ruling. Likewise, it annuls the percentage of contributions and the special contribution insofar as they exceed 50% of the gross amount of the pension to which the retired or pensioned person is entitled.
However, I respectfully depart from the majority's position and dismiss the appeal on the basis of the following reasoning.
As I stated in my dissenting vote to judgment n.º 202019274 of 16:30 hours on October 7, 2020, the percentage established by the Majority as the maximum limit on contributions and deductions (50%) was based on a strained interpretation of Article 71.2 of ILO (Organización Internacional del Trabajo, OIT) Convention C102, given that Article 67 of that international instrument is the one that applies to reductions in pensions. On that occasion I stated:
"III.— Dissenting vote with regard to the substantive claims related to laws n.os 9380 and 9383. The legal premise of the majority opinion, upon which most of its line of argument rests, is that Article 71.2 of ILO Convention C102 of 1952 — the Social Security (Minimum Standards) Convention — applies to pensioners and retirees. That provision states:
'2. The total of the insurance contributions borne by the protected employees (asalariados) shall not exceed 50 percent of the total resources devoted to the protection of employees and their spouses and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by a Member in applying this Convention may be taken into consideration together, with the exception of family benefits and employment injury benefits, if the latter depend on a "special branch."' Since the provision refers to 'employee' (asalariado), the majority is compelled to clarify the meaning of that term, given that it evidently refers only to active workers. In this regard, the main opinion in this proceeding states:
'It remains to be determined whether "employee" (asalariado) means only the worker prior to acquiring the right to a pension upon fulfillment of the formal and substantive conditions for that right, or whether it is possible to understand that "employee" also refers to other types of beneficiaries of the system. In the Court's view, a broader interpretation must be given that includes not only (sic) the active worker, so as to admit that a pensioner or retiree is indeed included within this concept. In fact, though anticipating what will be said later, this position is consistent, from a legal and economic standpoint, with the view that the pensioner or retiree receives a deferred salary (salario diferido) built through contributions made over the course of their working life. Moreover, it must be noted that in the document of the Committee of Experts, the concept of "employees" evolves to refer to "insured persons" (asegurados).
Accordingly, that concept must be understood to encompass both categories of obligated persons, as potential and current insured persons: pensioners and wage earners. It should be noted that the cited study emphasizes that there is no straitjacket on States; on the contrary, the approach must respond to national contexts, and the evolution of systems toward a solidarity-based financing arrangement and good governance cannot be ruled out, within the framework of the evolving understanding of human rights, as will be addressed below. If the provision seeks to achieve a balance, it is perfectly reasonable that all those who receive a monetary sum as a result of the agreed benefit should be included, since in that way the burden is distributed among all participants, which is what the international standard truly seeks to establish. This interpretation would resonate positively with the aforementioned Committee of Experts.
Consequently, "employee" (asalariado) or "insured person" (asegurado) must be understood in a broad sense, and is not a term that excludes pensioners or retirees.' Based on the foregoing, the Court, in the main opinion, concludes that laws n.os 9380 and 9383 violate paragraph two of Article 71 of ILO Convention n.o 102 by establishing a cap greater than 50%. Likewise, the majority considers that the 5% excess established by the legislature constitutes a violation of the essential core (núcleo duro) of the right to a retirement pension or pension, insofar as benefits were reduced by proportions greater than those permitted under international labor law.
With regard to the foregoing, the undersigned (infrascrito) dissents from this interpretation (hermenéutica), because it is founded on an erroneous premise arising from a technical confusion over basic legal concepts.
First, Article 71.2 of ILO Convention C102 of 1952 — the Social Security (Minimum Standards) Convention — pertains to the percentage of insurance contributions borne by wage earners in relation to the total resources allocated to that protection. For example, in the case of Costa Rica, a wage earner, pursuant to the referenced provision, should never contribute to the Caja Costarricense de Seguro Social more than 50% of the total resources allocated to the protection of wage earners and their spouses and children — that is, of the total resources financed through the remaining contributions (from the employer and the State).
Now, it is indisputable that the express text of the Convention provision regulates 'wage earners' — that is, the economically active population — and no ILO study can validly support the conclusion reached by the majority that it also applies to 'pensioners.'" The most serious aspect of the foregoing is that the Court, through case law, alters the positive text of a conventional norm ratified by Costa Rica through the competent bodies. In so doing, it changes the legal-normative meaning of the provision contained in the international instrument for the purpose of forcing it to fit the specific case at hand — which manifestly concerns a subject matter foreign to the object of the sub lite, namely wages — thereby disregarding the existence of other norms of the ILO convention that specifically and concretely regulate matters relating to pensions and the limitations that may validly be imposed on them in the interest of the financial stability and social solidarity of the system. In this regard, Part XI, "Calculation of Periodical Payments," contains the following provision:
"Article 67 With respect to any periodical payment to which this Article applies:
(a) the amount of the benefit shall be determined by a prescribed scale or by a rule fixed by the competent public authorities in accordance with prescribed rules; (b) the amount of the benefit shall be reduced only to the extent that the other resources of the family of the beneficiary exceed substantial amounts that are prescribed or fixed by the competent authorities in accordance with prescribed rules; (c) the total of the benefit and any other resources of the family, after deducting the substantial amounts referred to in sub-paragraph (b) above, shall be sufficient to maintain the family in health and decency, and shall not be less than the corresponding benefit calculated in accordance with the provisions of Article 66; (d) the provisions of sub-paragraph (c) shall be deemed to be satisfied if the total amount of benefits paid under the Part in question exceeds by at least 30 per cent the total amount of benefits that would be obtained by applying the provisions of Article 66 and the following provisions:
(i) sub-paragraph (b) of Article 15, for Part III; (ii) sub-paragraph (b) of Article 27, for Part V; (iii) sub-paragraph (b) of Article 55, for Part IX; (iv) sub-paragraph (b) of Article 61, for Part X.
SCHEDULE APPENDED TO PART XI — PERIODICAL PAYMENTS TO STANDARD BENEFICIARY
| Parts | Contingencies | Standard Beneficiaries | Percentage |
|---|---|---|---|
| III | Sickness | Man with wife and two children | 45 |
| IV | Unemployment | Man with wife and two children | 45 |
| V | Old age | Man with wife of pensionable age | 40 |
| VI | Employment injury and occupational disease: Incapacity for work | Man with wife and two children | 50 |
| Invalidity | Man with wife and two children | 50 | |
| Survivors | Widow with two children | 40 | |
| VIII | Maternity | Woman | 45 |
| IX | Invalidity | Man with wife and two children | 40 |
| X | Survivors | Widow with two children | 40 |
(Emphasis not in the original.)
Ergo, according to the literal and explicit text of the Convention, in order for an old-age pension to be reduced and, in this way, to ensure in principle that the family is maintained in health and decency, such benefit must reach at minimum 40 per cent of a reference wage.
On this point, there is indeed an ILO study. Specifically, in the International Labour Conference, 76th Session, 1989, "Old-Age Protection by Social Security: A General Survey by the Committee of Experts on the Application of Conventions and Recommendations," the following was stated:
"Benefit levels 130. Under the schedule appended to Part XI of Convention No. 102 relating to periodical payments, old-age benefits for a standard beneficiary — 'a man with a wife of pensionable age' — must reach 40 per cent of a reference wage. This percentage rises to 45 per cent in the schedule appended to Part V of Convention No. 128. Both percentages may, however, be reduced by a maximum of ten points if 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 account 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 per cent (paragraph 22), and in its paragraph 23 recommends that national legislation fix the minimum amount of old-age benefits in order to ensure a minimum standard of living." (Emphasis not in the original.)
In this manner, I consider that the premise from which the majority vote proceeds is false, and consequently the conclusions derived from it are inevitably erroneous.
Now, the sole Article of Law No. 9380 of July 29, 2016, entitled "Percentage of Contribution of Pensioners and Active Employees for Special Pension Schemes," provides:
"In no case shall the totality of the deductions applied to all pensioners and retirees covered by this article, including the corresponding special, solidarity, and redistributive contribution, represent more than fifty-five percent (55%) of the total gross amount of the pension to which the beneficiary is entitled by right. In cases where 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, Article 3 in fine of Law No. 9383 of July 29, 2016, entitled "Framework Law on Special Contributions to Pension Schemes," provides:
"In no case shall the sum of the special, solidarity, and redistributive contribution and the totality of the 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 to which the beneficiary is entitled by right. In cases where 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% with respect to the total gross amount of the pension is, in principle, compatible with ILO Convention 102, since it cannot be inferred from the arguments of the petitioners that its application automatically transgresses the threshold of 40% with respect to a reference wage under the terms of Article 67 of that international instrument.
In that regard, such reference wage, in the case of Costa Rica, could refer to the average of wages used to calculate the amount of a person's pension, which is consistent with Article 65 of that regulation. It should be noted that the 55% benchmark in the challenged laws is linked to the gross amount of the pension, whereas the conventional 40% benchmark is linked to a reference wage, so that these are limits which operate differently. Consequently, it will be at the stage of application of the legal norm that it must be assessed whether, in any specific case — likely involving very high pensions — the conventional threshold supersedes the statutory benchmark.
In addition, the minimum exemption contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration, according to the pay scale issued by the Dirección General de Servicio Civil) and the 55% cap on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383), subject to a graduated scale of impact, guarantee more than adequate pensions to elderly persons. In this regard, I find no arguments demonstrating that the graduated contribution and the burdens imposed are manifestly unreasonable or that they affect the core of the pension right, and I therefore rule out any manifest infringement of the human dignity of the beneficiaries.
Pertaining to the foregoing, it is not possible to assert that the challenged provisions transgress the international protection enjoyed by elderly persons, since not only is the sustainability of the scheme being guaranteed, but also a sufficient income to reasonably satisfy a dignified standard of living.
Accordingly, I consider that, on the basis of the elements presented in the record, Laws No. 9380 and No. 9383 are not contrary to the principles of reasonableness, proportionality, and non-confiscatory taxation, nor do they transgress the special protection enjoyed by elderly persons.
Likewise, although a violation of the principle of administrative liability is alleged, it is no less true that the challenged norms do not exempt public agencies from liability when they cause harm to individuals, and I therefore dismiss this allegation prima facie.
(…)
In the sense set out above, if a pension financed to a significant extent or entirely with public funds is unreasonably high (with disproportionate amounts and increments), it is justified that through legislation an adjustment of such benefits be sought in order to safeguard the right to a dignified existence for all pensioners. Insofar as the imposition of contributions and charges on old-age pensions and retirement benefits respects the percentage established by convention (Article 67 of ILO Convention 102), there would a priori be no violation of Constitutional Law. It must be taken into account that, as the majority of the Court acknowledges, the country's economic situation is complex and the sustainability of the pension scheme is at risk, and therefore, in keeping with the principle of social solidarity, it is essential that those who are in a better position contribute progressively in accordance with their economic capacity.
The approach to contribution must be understood in terms of solidarity with the sustainability of the scheme and with the least-favored persons, rather than in terms of maintaining situations of disproportionate privilege in favor of a group of individuals. For that very reason, increasing the contribution amounts of pensioners or retirees is not considered contrary to the principle of non-retroactivity, provided that the guarantees and limits set out in this dissenting vote are respected.
The majority cites provisions of the Protocolo de San Salvador, the Charter of the Organization of American States, and the Universal Declaration of Human Rights concerning the right of persons to live a dignified life in old age, and considers that the 40% figure contemplated in Article 67 itself of ILO Convention 102 is contrary to justice, equity, the prohibition of arbitrariness, and legitimate expectations (confianza legítima). However, as I indicated supra, the provision of the international instrument applicable to the specific case is precisely that Article 67, endorsed by the ILO, and not Article 71.2, as the majority forcibly interprets it in the principal judgment. Likewise, it bears reiterating that the exempt minimum (mínimo exento) contained in Law No. 9383 (ten times the lowest base salary paid by the Public Administration according to the pay scales issued by the Dirección General de Servicio Civil, which according to the Procuraduría General de la República was ¢2.602.500,00 in the first half of 2017) and the 55% cap on deductions from the highest pensions (contemplated in both Law No. 9380 and Law No. 9383), subject to a graduated scale of reduction applicable to larger pensions, guarantee more than dignified pensions for elderly persons.
Finally, even though there are ILO recommendations suggesting half of the salary as a pension in cases where thirty effective years of contributions are certified, it is equally true that, on the one hand, such provisions are not binding (precisely because they are recommendations) and, on the other hand, ILO Convention 102 (whose binding force is unquestionable) does expressly contemplate a percentage that must be respected for purposes of the old-age pension (40% of a reference wage (salario de referencia)), and therefore the direct application of the international instrument in the sub lite is appropriate.
On the basis of the foregoing, I declare the claims unfounded with regard to Laws No. 9380 and No. 9383." Precisely, in accordance with the position set forth supra, the provision of ILO Convention C102 applicable to this type of matter is Article 67, and not Article 71.2.
In this regard, Articles 67 and 71.2 provide:
"Article 67 With respect to any periodical payment to which this Article applies:
(a) the rate of the benefit shall be determined either by a prescribed scale or by a scale fixed by the competent public authorities in accordance with prescribed rules; (b) the rate of the benefit shall be reduced only in so far as the other means of the family of the beneficiary exceed prescribed amounts or amounts fixed by the competent authorities in accordance with prescribed rules; (c) the total of the benefit and the other means of the family, after deduction of the appreciable amounts referred to in subparagraph (b), shall be sufficient to maintain the family in health and decency, and shall not be 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(b), for Part III; (ii) Article 27(b), for Part V; (iii) Article 55(b), for Part IX; (iv) Article 61(b), for Part X.
SCHEDULE ANNEXED TO PART XI — PERIODICAL PAYMENTS TO STANDARD BENEFICIARIES
| Parts | Contingencies | Standard Beneficiaries | Percentage |
|---|---|---|---|
| III | Sickness | Man with wife and two children | 45 |
| IV | Unemployment | Man with wife and two children | 45 |
| V | Old age | Man with wife of pensionable age | 40 |
| VI | Employment injury and occupational diseases: | ||
| Incapacity for work | Man with wife and two children | 50 | |
| Invalidity | Man with wife and two children | 50 | |
| Survivors | Widow with two children | 40 | |
| VIII | Maternity | Woman | 45 |
| IX | Invalidity | Man with wife and two children | 40 |
| X | Survivors | Widow with two children | 40 |
(…)
"Article 71.
(…)
2. The total of the 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 of their wives and children. For the purpose of ascertaining whether this condition is fulfilled, all the benefits provided by the Member in accordance with this Convention may be taken together, with the exception of family benefit and benefit in respect of employment injury and occupational diseases if this latter branch is organized as a special scheme." As can be inferred from reading the cited articles, the Constitutional Chamber (Sala), in judgment No. 202019274 of 16:30 hours on October 7, 2020, unnecessarily altered the legal and normative meaning of Article 71.2 in order to adapt it to the specific case and fix a maximum percentage of 50%, thereby overlooking the existence of Article 67 of the international instrument, which specifically governs the limitations that may be imposed on pensions.
It should also be noted 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, that provision regulates "employees" (the economically active population) and not "retirees or pensioners (pensionados o jubilados)." On the basis of the foregoing, and consistently with the position I have maintained, I declare these claims unfounded, since it is not established that Articles 236 and 236 bis of the Ley Orgánica del Poder Judicial cited supra automatically exceed the 40% threshold of a reference wage established in Article 67 of ILO Convention C102. It should be noted that the 55% parameter in the challenged laws refers to the gross amount of the pension, while the conventional 40% refers to a reference wage; therefore, it falls within the scope of application of the legal provision to assess whether, in any specific case, the threshold established in the international instrument supersedes the parameter set in the legislation. Consequently, I find no arguments demonstrating that the contributions, charges, and deductions are manifestly unreasonable or that they affect the core of the right to a pension.
Paul Rueda L.
Partial Dissenting Vote (voto salvado parcial) of Justice Hernández López.
The pension received by a given individual represents the economic sustenance that allows that person to carry out their life plan when they are no longer working and have reached old age, after having met the applicable legal requirements. It is a fundamental right, as constitutional jurisprudence has established, and it is inextricably linked to the exercise of their other fundamental rights and freedoms and to their quality of life.
By the exclusive decision of the Costa Rican legislature, a solidarity-based model (modelo solidario) was adopted to construct the pension scheme across various regimes — for several generations of workers, in the case of the Poder Judicial for more than 70 years — and under that scheme, the premise is that, through its regulation, the State does not seek economic advantage, but rather, in accordance with the current social contract, it strives to make an investment in certain values or legally protected interests (bienes jurídicos) that impact a given collective in society in a particular way, which are called social rights (derechos sociales). 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 tax revenue and distributes it without applying a purely financial criterion — that is, not everyone contributes equally, nor does everyone receive equally.
The Costa Rican State's commitment to social rights stems from the constitutional text itself (among other provisions, Articles 56 et seq.) and from several international human rights instruments incorporated therein — even at a superior rank by virtue of Article 48 of the Constitución Política and judgment 1995-02313 of this Chamber, insofar as they provide greater protection of the right. Among their supranational protections, we may 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 progressivity clause (cláusula de progresividad) of Economic, Social and Cultural Rights (DESC), including Article 2 of the International Covenant on Economic, Social and Cultural Rights, hereinafter PIDESC, Article 26 of the American Convention on Human Rights or Pacto de San José, and the Additional Protocol to the American Convention on Human Rights or Protocolo de San Salvador, among others, in their Articles 1 and 2.
Based on the applicable national and international rules and jurisprudence, it is recognized that social rights are indivisible and interdependent with other fundamental rights, making them fully enforceable and binding on public authorities (on the principle of indivisibility, see Airey v. Ireland, ECHR). In times of economic crisis, the public authorities are obligated to prevent the crisis from becoming a human rights crisis, or from being used as an excuse to avoid fulfilling them. In this regard, the most widely recognized international doctrine has indicated that regressive measures (medidas regresivas) affecting 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. In particular, it has been emphasized that, in cases where an administration must adopt regressive measures with respect to the right to a pension, a technical study of the impact on the rights of those affected must be conducted, as well as a demonstration that no less burdensome measures could have been taken.
(Federation of Employed Pensioners of Greece (IKA-ETAM) v. Greece, Complaint No. 76/2012) Furthermore, given that the subject occupies the attention of countries where a Social State has been most intensively developed, the European Committee of Social Rights of the Council of Europe has adopted several decisions on pension cuts, with particular attention to the case of Greece and its economic crisis. In those decisions, the said body has placed limits on the adjustments imposed by the so-called "troika," noting that the State is obligated 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 upheld regressive measures regarding economic, social and cultural rights (derechos económicos, sociales y culturales, DESC) when such measures pursue a legitimate and relevant aim, such as improving another right or the general level of service coverage that guarantees their effectiveness, or serves to prevent more onerous measures.
Thus, the constitutional conformity of measures that reduce or modify pension conditions requires that, prior to their determination and as an indispensable part of their justification, technical support regarding the effects of the measures must be available, and those affected must have been heard, because these measures concern the income they currently receive as a means of subsistence and upon which a large part of their life plans and their right to a dignified old age are based.
The measures adopted by the legislature in the reform of the Poder Judicial pension scheme (régimen de pensiones), as reflected in the judgment—in the part that I have joined—are based on technical studies upon which the legislature relied to make the necessary adjustments to protect the economic balance (equilibrio económico) of the pension fund (fondo de pensiones) and thereby protect the rights of the fund's membership as a whole, and with it those of each individual member. To the extent that the challenged reforms are supported by those technical studies, I have agreed with the majority that they are constitutionally sustainable; however, in those aspects where they depart from the technical studies or were silent on certain matters (such as the differences between women and men with respect to the ordinary pension (pensión ordinaria), that is, without a gender perspective (perspectiva de género)), I have departed from the majority's position, precisely due to the absence of a technical basis to support the measures adopted. In the case of the transitional provision affecting those with more than 25 years of contributions (cotización) to the scheme, I have likewise dissented, precisely because it lacks a technical basis or a justification as compared to less onerous measures that were contained in the legislative record (expediente legislativo).
To determine whether a regressive measure is legitimate, in accordance with inter-American jurisprudence and the most current scholarly doctrine, it is first necessary to verify the legitimacy of the aim that the provision seeks to achieve; thereafter, one must analyze whether the restriction of rights is "suitable" or "appropriate," then successively whether it is "necessary" or "indispensable," and finally whether it is "proportionate" in the strict sense or "balanced." In the present case, the measure may be legitimate insofar as it pursues a constitutionally legitimate aim (restoring the economic balance of the fund), but in my view it is not proportionate, as will be explained below.
As the jurisprudence of the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos) and the most current scholarly doctrine on the subject have indicated, in addition to ensuring that a legitimate aim is being pursued, it must be verified whether the means prescribed in the provision to achieve the intended aim are adequate or not to effectively achieve that aim, or, in other words, "(…) the protective effect of the measure in relation to the interest or value that it seeks to promote must be clearly demonstrated." The jurisprudence of the Inter-American Court also states that there must be no other means of achieving the intended aim with the same efficacy that are less burdensome or onerous 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 aim and that sacrifices to a lesser degree the constitutional principles affected by the use of those means." It is here that, with respect to persons with 25 or more years of contributions to the scheme, I find that the measures are contrary to the Constitución Política, since the legislative record contained a less onerous technical proposal for transitioning to the new rules in a graduated manner, and despite this, the legislature, without any technical basis, departed from other technically supported options and opted for a more onerous measure, namely the 18-month transition period.
It is true that the legal order is not immutable, and it is also true that the Sala Constitucional has held that an 18-month transition is sufficient; however, in every case in which it has so held, there was no alternative, less onerous proposal available to those affected. That is, the 18-month period has been applied as a palliative when no technically viable transitional proposal exists, so as not to leave without protection those who were approaching retirement age under the prior rules, and to avoid disproportionately affecting their life plans. However, that is not the case under consideration, since the legislative record contained technically sustainable proposals that were less onerous and were rejected without a technical justification. That is where I find there to be a disproportion—by virtue of its effects—in failing to protect those with 25 or more years of contributions, which renders the challenged legislation unconstitutional and contrary to international treaty obligations (inconvencional) in its transitional provisions as regards this group of persons. I have not reached this conclusion with respect to persons with fewer than 25 years of contributions, because their proximity to the right to retirement is not comparable.
The Inter-American Court has stated that if the harm caused to the legal patrimony (patrimonio jurídico) of citizens is greater than the constitutional benefit that the provision is capable of achieving, then it is disproportionate (…).
Furthermore, regarding the intensity that the proportionality analysis (juicio de proporcionalidad) must have, the Court has held that in economic matters, and more specifically in matters related to budgetary issues and the allocation of resources, the legislature enjoys broad legislative discretion (libertad de configuración), and therefore, in such cases, any proportionality analysis conducted should be of low intensity. However, when the manner in which resources are allocated impairs other rights of greater constitutional relevance—such as the vital minimum (mínimo vital) or human dignity (dignidad humana)—the analysis must be strict. In the case under consideration, persons with 25 or more years of contributions to the Poder Judicial pension scheme were, in my view, unnecessarily affected, since a more proportionate, graduated technical alternative existed and was not adopted, being replaced by another without any technical justification appearing in the legislative record, which in my view deprives the measure in question of the criterion of proportionality, and therefore of reasonableness, and for this reason I have partially dissented in this respect.
Regarding deferral (postergación) of retirement, I have dissented, finding an unconstitutionality by omission (inconstitucionalidad por omisión) in the challenged Ley 9544, due to the fact that the legislature has not afforded the same treatment under the law to Poder Judicial workers with respect to the possibility of receiving incentives to defer their right to retirement, in accordance with the characteristics of their own scheme. I find that this omission infringes upon the Constitution to the detriment of judicial employees (personas servidoras judiciales) because, if the legislature's intention was to gradually equalize—to the extent possible—the conditions under which the various pension schemes operate, it is more than evident that the challenged Ley 9544 has not taken this circumstance into account with respect to this particular point.
It is on record that a sector of the petitioners challenges the modifications introduced to the Régimen de Jubilaciones y Pensiones del Poder Judicial through Ley 9544, on the grounds that it lacks specific provisions granting benefits to Poder Judicial workers who choose to defer their retirement, which has been established and regulated for other pension schemes existing in the country, such as the Régimen de Invalidez, Vejez y Muerte (IVM) of the Caja Costarricense de Seguro Social. On this point, it is appropriate to cite the provisions of Article 25 of the Reglamento del IVM, which states:
"Article 25. An insured person who meets the requirements to be entitled to an old-age pension shall have the right to an additional pension for deferring retirement, from the date on which he or she has met the legal and regulatory requirements. This additional pension shall consist of 0.1333% per month of the average salary (salario promedio) calculated pursuant to Article 23°.
The total amount of the additional pension for deferring retirement added to the amount of the ordinary pension calculated pursuant to Article 24° of this Reglamento may not exceed 125% of the average salary or income indicated." Note that this deferral benefit translates into economic recognition for the worker who, for personal, professional, or other reasons, chooses not to exercise his or her right to retirement or pension at the moment when it would otherwise be due, opting instead to remain active in his or her functions and continue working at the institution. An objective analysis of the situation leaves no doubt that such recognition, granted under these circumstances, not only constitutes a benefit for the individual worker but also—and probably to an even greater extent—a benefit for the Fund, given that the worker will continue making active contributions and therefore continue generating resources for the Fund, as opposed to retirees or pensioners who are in a passive position with respect to the fund, thereby reducing its financial assets.
From this perspective, in my view, it would be appropriate for a Fund such as that of the Poder Judicial, in addition to having early retirement options that in fact are detrimental to it, to also offer its members incentives for deferring retirement, as indeed exist in other pension schemes, since such incentives constitute compensatory measures that benefit both the Fund and the workers.
Note that the original bill with which expediente legislativo No. 19.922, entitled "Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa," was initiated, included in the final paragraph of Article 235 Ter a deferral incentive, as follows:
"(…)
The monthly amount corresponding to the old-age pension shall be calculated as follows:
a) …
b) …
"Article 244.- Poder Judicial workers who reach or exceed the age and length-of-service requirements to qualify for retirement but who defer its enjoyment shall acquire the right to receive, from the resources of the Retirement Fund (Fondo de Jubilaciones), an amount equivalent to one month's salary for each complete year deferred." Note that this was an additional benefit intended to incentivize individuals not to take retirement and to continue working while at the same time receiving some form of recognition for that decision. It must also be noted that the bill processed under expediente legislativo No. 19.651, entitled "Ley de Reforma del Título IX de la Ley Orgánica del Poder Judicial No. 8 de 29 de noviembre de 1937 y sus reformas," also included a deferral incentive, stating expressly in the explanatory memorandum (exposición de motivos) the following:
Retirement Deferral Incentive We also introduce this possibility, and through it we seek to ensure that persons who meet the requirements to take retirement continue working in the Judicial Branch for longer, so that the Fund does not have to assume the payment of the pension at that point in time. In exchange, the person who postpones the date on which the right to retire (derecho jubilatorio) vests receives, as an incentive, the equivalent of one month's salary for each full year of postponement; that money will be paid from the Retirement Fund (Fondo de Jubilaciones) at the time the person takes retirement, thereby achieving, through this procedure, a savings of twelve annual disbursements that the Fund would otherwise have had to make had the person exercised the right at the moment the requirements were met." In the body of the draft bill, that incentive was recognized in Article 244, which provided:
"Article 244.- Judicial Branch employees who have reached or exceeded the age and years-of-service requirements to take a pension (jubilación), but who postpone enjoying it, acquire the right to receive from the resources of the Retirement Fund the equivalent of one month's salary for each full year of postponement." Those possibilities of including an incentive for postponing the pension benefit were eliminated in successive drafts, and in the justification of the Affirmative Majority Committee Report issued by the Special Commission on July 27, 2017, it was expressly stated that:
"The Reviewing Commission consciously and responsibly incorporated into the approved text the variables established by Normative Framework IICE_4, with the purpose of not jeopardizing the present or future sustainability of the Judicial Branch's pension and retirement regime and of adhering strictly to the technical recommendation issued by the Institute for Economic Research of the University of Costa Rica. Accordingly, the following variables regulated in the approved text conform to those contained in Normative Framework IICE_4, namely:
(…)
m- Incentive for postponing old-age retirement: not contemplated in the model" As may be inferred from the foregoing, the legislature omitted the aforementioned incentive on the ground that it had not been incorporated into the technical study conducted by the Institute for Economic Research of the University of Costa Rica; however, it could well have requested that the study be expanded in that regard for the purpose of adding the incentive to this specific regime, especially considering that the legislature's original intent was aimed at achieving a unification of the various pension and retirement systems existing in the country.
Under these circumstances, given that Ley 9544 did not contemplate such incentives even though the ordinary legislature had the authority to have included them and bore the mandate to regulate social welfare provisions of this kind for the benefit of workers — both individually and collectively, to benefit the Fund — I consider that Ley 9544 contains an unconstitutionality by omission that affects the right to equal treatment before the law.
With respect to the dissenting vote concerning the percentage reduction of the solidarity tax (impuesto solidario), I refer to the reasons set forth in the vote cast in judgment no. 2020-19274 of 16:30 hours on October 7, 2020, in which I concluded, together with Justice Rueda, that under the express text of Article 67 of ILO Convention C102 of 1952 — the Convention concerning Minimum Standards of Social Security — the pension or retirement benefit may be reduced provided that the 40% threshold of a reference salary is respected, which does not appear to be automatically and evidently transgressed by the content of the challenged provisions.
Nancy Hernández L.
Note of Justice Hernández López With respect to the violation of the principle of publicity (publicidad), as recorded in the Por tanto of the judgment, I join the note of Justice Garro Vargas. With respect to the final note of a general character, I dispense with it.
Nancy Hernández L.
Partial dissenting vote of Justice Rueda Leal and Justice Hernández López, drafted by the latter. On the legislature's omission to include a gender perspective in Article 224 of Ley 9544.
From a constitutional standpoint, in order to comply with the principle of equality, the conditions of structural disadvantage faced by women must be counteracted through differentiated affirmative measures that incorporate a gender perspective in all aspects of productive life.
In this area, in addition to the mandatory compliance with the constitutional precept of Article 33 of the Political Constitution, the country has committed itself, through various international human rights treaties, to generating proactive measures to reduce the gap of inequality that exists in practice. Beyond the foregoing, various studies have recognized that our country continues to maintain a patriarchal system in which women are the first to take responsibility for the care of infants, elderly persons, persons with disabilities, and other family members, working on average 13.5 additional hours per week at home compared to men, among other things, which translates into a greater burden and strain resulting from inequality in the distribution of family and domestic responsibilities due to the roles that have been socially assigned to them and that they frequently carry out in parallel with their formal employment (see, among others, the 2017 National Time-Use Survey (Encuesta Nacional de Uso del Tiempo, ENUT)).
As noted above, our country has subscribed to the principal human rights treaties, among which those specifically addressing the protection of women stand out, such as the CEDAW, or Convention on the Elimination of All Forms of Discrimination against Women, and the Convención Belén Do Pará. From these instruments derives, in our view, the necessity of recognizing the contribution that women make, through unpaid work, to household and family well-being and to the country's economic development, especially given the demonstrated inequity in the distribution and use of time between women and men as a determining factor of inequalities in work and employment, which operates as a barrier to women's full development. On this subject, the United Nations Committee on the Elimination of Discrimination against Women, in General Recommendation No. 27 on 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 reason policy recommendations are formulated to incorporate responses to the concerns of older women into national strategies, development initiatives, and affirmative measures, so that these women may participate fully in society, free from discrimination and on an equal footing with men.
This situation is aggravated upon retirement (jubilación), especially in those countries whose legislation does not provide for different retirement ages for women and men—a form of positive discrimination (discriminación positiva) intended to offer a solution for women as a group. On this matter, it should be noted that the rationale for advocating 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 participate, it is in many cases while bearing a greater burden but receiving lower wages. From this perspective, the difference in retirement age (edad jubilatoria) — as an affirmative measure (medida afirmativa) — 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 labor market dynamics that disproportionately penalize women.
This positive discrimination measure, which 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 above 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 such as Costa Rica commit to adopting all appropriate measures to eliminate discrimination against women in the sphere of employment in order to ensure for them the same rights held by men. On this point, the CEDAW Committee has strongly emphasized that women have been and continue to be subject to various forms of discrimination on account of being women, taking into account that the gender-based employment discrimination (discriminación de género en el empleo) they suffer throughout their lives has a cumulative impact in old age, forcing them to live on disproportionately low or even nonexistent incomes and pensions compared to men.
For that Committee, it is not sufficient to guarantee women identical treatment to that of men; the biological differences between women and men must also be taken into account, as well as the differences created by society and culture, so that, in certain circumstances, it will be necessary for there to be non-identical treatment of women and men in order to balance those differences, since achieving the goal of substantive equality (igualdad sustantiva) also requires an effective strategy aimed at correcting women's underrepresentation and a redistribution of resources as well as power between men and women. Consequently, as noted above, an affirmative action (acción afirmativa) in favor of women consists of establishing a difference in retirement age as a special measure that recognizes the additional working hours performed by Costa Rican women in general and by female workers of the Poder Judicial in particular — working hours that produce physical and mental strain throughout women's lives, which becomes more clearly visible when they reach an advanced age as their paid working life draws to a close.
The Procuraduría General de la República, in its response to the hearing granted in this action of unconstitutionality (acción de inconstitucionalidad), stated that this type of differentiation is only justified when technical studies suggest the need for differentiated treatment, and that the Sala (Constitutional Chamber, Sala Constitucional) resolved this matter in ruling No. 2018-005758 of 15:40 hours on April 12, 2018, further noting that, in any event, Article 224 bis of Ley 9544, related to the matter of early retirement (pensión anticipada), does make a distinction between men and women with respect to the retirement age — a distinction very similar to that provided for in the Disability, Old Age, and Death Scheme (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social, since women are permitted to retire at age 60 and men at age 62. For its part, the Vice-President of the Corte Suprema de Justicia, in her report to the Sala, stated that with regard to Article 224 of Ley 9544, in the report submitted in response to the second referral to the Corte Suprema de Justicia, the text of the current provision made no distinction by gender, unlike other pension schemes (regímenes de pensiones) — an omission extensively analyzed in the discussion of the third referral, 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 Article 11, paragraph 1, subparagraph (e) provides 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, disability, or old age, and the provisions of Article 71 of the Constitución Política regarding special protection for women in the workplace.
The President of the Asamblea Legislativa noted that, since the allegation that Article 224 of Ley 9544 does not address gender criteria had already been analyzed by the Sala, the claim should be dismissed.
With regard to this matter, this Tribunal, when analyzing the Optional Legislative Referral (Consulta Legislativa Facultativa) in ruling No. 2018-005758 of 15:40 hours on April 12, 2018, ruled as follows:
"(…)
From a reading of the provisions cited above, it is apparent that they establish the requirements that every officer must meet in order to obtain a pension from the Pension and Retirement Scheme (Régimen de Pensiones y Jubilaciones) of the Poder Judicial. However, in this Sala's view, the fact that no differentiation is made on the basis of gender in the terms mentioned by the petitioners does not constitute a constitutional defect (vicio de inconstitucionalidad), since it must be taken into account that the requirements for obtaining a retirement benefit (beneficio jubilatorio) are based on objective criteria established through technical studies, which set requirements such as the age and number of contributions (cuotas) that a person must meet in order to guarantee the sustainability of a pension scheme, regardless of the contributor's gender. It must be kept in mind that the petitioners have not submitted technical studies to support the alleged unconstitutionality, so as to objectively justify the differentiation that is found to be lacking, which does not mean that, in the future, this Tribunal, through a posteriori constitutional review (control a posteriori de constitucionalidad), may not analyze the alleged grievance on the basis of pertinent technical studies that may be submitted.
Furthermore, the studies mentioned in the referral relate to other scenarios that are not applicable, as they deal, among other things, with working hours, income, etc. Finally, it cannot be overlooked that, contrary to what is alleged in the referral, IICE, in official communication No. 186-2017 of August 18, 2017, clearly and precisely states the following:
'c. Required retirement age and gender differences.
The guidelines established for retirement age in the Majority Opinion (Dictamen de Mayoría) 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 distinction analogous to that established in the IVM scheme 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 on the basis of gender.' In light of the foregoing, the Tribunal finds that the alleged defect is not present." Despite what this Court has stated above, it must be remembered—as has been noted—that pronouncements such as the one issued when resolving the legislative referral (consulta legislativa), in addition to addressing only the specific topics referred, do not shield the effects or content of the adopted norms from future challenges—in subsequent judicial or constitutional review—; additionally, the Chamber's pronouncement in the context of a legislative referral has the characteristic of analyzing a draft norm in the abstract, without, as is logical, it having been applied, which does not prevent this Court from subsequently exercising constitutional review (control de constitucionalidad) if the practical application of a norm were to reveal harm to the constitutional order and, consequently, a claim of unconstitutionality were filed.
Added to the foregoing, the Chamber—like any Constitutional Court—is the body entrusted by the constitution-maker to safeguard the supremacy of the Constitution through the mechanisms and procedures established in the Law on Constitutional Jurisdiction, and in accordance with rule 13 of the Law on Constitutional Jurisdiction, the jurisprudence and precedents of the constitutional jurisdiction are binding erga omnes, except upon itself. Constitutional review is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights sheltered 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, alternating, and accountable), all of which involves an active exercise of balancing and optimization (ponderación y optimización) of the various constitutional principles, rights, and values at stake; therefore, ensuring that what amounts to a paper constitution does not emerge—one in which constitutionally-ranked social rights (derechos prestacionales de rango constitucional) cannot be made effective—is a fundamental task of this Chamber, strictly within the scope that its competences allow (see in this regard judgment number 2018-019511 of 21 hours 45 minutes of November 23, 2018).
Regarding the subject matter analyzed in this Considerando, at the time that referral was made, there was insufficient certainty as to the practical effects that the legislation—which today, as a Law of the Republic, can be observed—might produce; therefore, it is now, on the occasion of this action, that it falls to the constitutional judge to carry out the balancing or optimization exercise to resolve the collision between principles, values, and precepts brought to its attention regarding the omission (omisión) incurred by the legislature in failing to apply the gender perspective (perspectiva de género) in article 224 of Ley 9544, and given that the function of constitutional jurisdiction is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights sheltered in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the political organization and structures contemplated in the Fundamental Law, this is the moment at which such an assessment is in order, leading to the conclusion that, precisely by applying those principles and values that the Constitutional Judge must protect, the petitioners (accionantes) are correct in considering that article 224 is unconstitutional for failing to incorporate gender criteria in its content regarding the ordinary retirement pension (pensión ordinaria).
It is also important to mention that evidence for the better resolution of the case was requested from the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the Universidad de Costa Rica, asking it to report and clarify whether the "Actuarial Study of the Judiciary Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) (coverage period 2016-2018)" took into account the gender variable of the contributor (cotizante) as part of the technical studies; and, if not, to indicate the reasons for such decision. In response to this inquiry by the Court, the Director of IICE at the Universidad de Costa Rica informed the Chamber that, in Summary Compendium #4, which describes the 4 normative frameworks developed by IICE, it can be observed that frameworks IICE_3 and IICE_4 propose a 2-year difference in favor of women in the minimum age requirements for service-based retirement (jubilación por servicio)—which is the one contemplated in article 224 bis—such that, in both framework IICE_3 and framework IICE_4, it proved to be actuarially solvent to grant an early retirement pension (jubilación anticipada) to women who had reached at least 60 years of age and to men who were at least 62 years old.
That official also informed this Court that, in the same Summary Compendium #4, framework IICE_1 establishes a 2-year difference in favor of women in the requirements for ordinary old-age retirement (jubilación por vejez ordinaria) and age-based retirement (jubilación por edad)—which is the one contemplated in article 224—but framework IICE_1 proved to be insolvent under that assumption. In light of the foregoing, it has been demonstrated that the gender perspective was indeed integrated into the study prepared by the Universidad de Costa Rica for the hypothesis of early retirement contemplated in article 224 bis, but not for the case of ordinary retirement under article 224, both of Ley 9544 challenged here; in the latter case, the reason for omitting it was that, had it been included, the results produced by framework IICE_1 showed that the Fund would be insolvent. Notwithstanding the importance of the issue, that omission was replicated by the legislature when it did not include the gender perspective in the provision of article 224 of Ley 9544 under examination; an article that will likely be the most widely used in the future, because it is evident that a large number of male and female judicial officers will opt for ordinary retirement, since it will be, as a matter of principle, the one offering better conditions.
Likewise, returning to the actuarial study, it is also noted that although IICE had the inputs to do so, it did not produce other calculations or proposals for the case of ordinary retirement—which is the one contemplated in article 224 of Ley 9544—incorporating the gender perspective; a study that, in addition to completing the overall picture, could have yielded data showing that, with the inclusion of gender protection, the Fund would have been solvent. Consequently, it has been demonstrated that even though the ordinary legislature had the mandate to develop the subject incorporating the principles and values of Constitutional Law, among which the gender perspective is included, it did not do so and, therefore, article 224 under examination contains an unconstitutionality by omission (inconstitucionalidad por omisión) that warrants declaring the appeal upheld with respect to that norm, given that it did not establish a differentiated age allowing women who contribute to the Judiciary Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial) to retire under ordinary conditions.
For the foregoing reasons, we believe that the appropriate course of action was to impose a duty on the Asamblea Legislativa to correct that omission, always with the benefit of appropriate technical criteria that would allow the age differential established to likewise guarantee the sustainability of the retirement and pension fund, so that the conditions supporting the difference between men and women that is established would also be assessed in conjunction with the entire set of charges and deductions already in place for all active contributors and retirees, in order to respect the parameters of reasonableness, proportionality, and non-confiscatory nature.
Paul Rueda Leal Nancy Hernández L.
Justice Justice Note of Justices Salazar Alvarado and Hernández Gutiérrez on the omission alleged in article 224, drafted by the former.
Given that the undersigned justices agreed to join and align with the other members of the Chamber, when necessary to cast a fully concurring vote, we declare the action dismissed solely on formal grounds, since the petitioners did not provide technical studies to rebut those that served as the basis for omitting a gender perspective in the amendment to article 224, carried out through Ley N°9544 of April 24, 2018, reforming the Judiciary Retirement and Pension System.
Luis Fdo. Salazar A.
José P. Hernández G.
Dissenting Vote of Justices Salazar Alvarado and Hernández Gutiérrez, drafted by the former.
The undersigned justices dissent, and consider that it is necessary to address the problem of the consolidated actions from the perspective that the legislative procedure involved a blatant, manifest, and evident violation of article 167 of the Political Constitution, which, given its significance, demands that the entirety of Ley N° 9544, entitled "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 unconstitutional.
It must begin by noting that the Special Committee (Comisión Especial) tasked with processing legislative file N° 19.922 notified Corte Plena of the respective draft laws being approved, in order to comply with the provisions of the aforementioned article 167. The referrals to the Supreme Court of Justice occurred on three occasions; namely:
In each and every one of the consultations submitted, the Corte Plena determined that the bills in question affected its organization and functioning, so that, based on that negative opinion, and in accordance with Art. 167 of the Constitución Política, and the principles of coordination, mutual respect, and equality that govern relations between constitutional bodies and between the two branches of government [the system of checks and balances], the law was required to be approved by a qualified majority. It should also be noted that the last of those bills — the Majority Affirmative Opinion accepted by the Special Committee on July 27, 2017 — was not the end of the matter. On the contrary, the text of the bill was the subject of substantive and reaffirming motions accepted by the Special Committee, which were subsequently voted on by the Legislative Plenary in First Debate, during extraordinary session N° 14 of October 30, 2017 (folios 4000, 4306 through 4327 of the legislative file).
As a result, the text voted on by the Legislative Plenary in First Debate was a modified text that retained some of the points on which the Corte Plena had issued its negative opinion, among them the establishment of an Administrative Board of the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Poder Judicial, to the detriment of the competencies of the Superior Council of the Poder Judicial. Moreover, it must be noted that the text also contained other substantial changes to the bill, including changes that worsened certain conditions for judicial officers with respect to the enjoyment of the right to a pension and retirement — a situation on which the Corte Plena was required to render an opinion, in relation to Art. 167 of the Constitución, given its relevance to constitutional law. These modifications were voted on in First Debate and were approved in Second Debate — all without having submitted the institutional consultation regarding the text approved in Committee that was subsequently voted on by the Plenary in extraordinary session N° 14 of October 30, 2017.
Although the Asamblea Legislativa considered it unnecessary to consult the Poder Judicial on the final text approved by the Special Committee on July 27 and the subsequent modifications introduced through substantive and reaffirming motions, and chose to continue the legislative process in keeping with the constitutional chamber's reasoning in Sentencia N° 2018-005758 of 15:40 hours on April 12, 2018 — on the grounds that those modifications to the pension system of the Poder Judicial did not affect the structure and functioning of the Poder Judicial, nor the essential content of judicial independence — such a position is not acceptable to the undersigned judges, as will be developed further below. Furthermore, there is a pattern of worsening conditions for Poder Judicial officers that can be identified in certain provisions that were modified by the substantive and reaffirming motions and incorporated into the text approved in Committee, which represented a substantial change from the bill previously consulted. As noted, this final text was approved in First Debate on October 30, 2017, and a comparative exercise reveals the following substantial modifications of significance, by way of example:
Accordingly, contrary to the position of the majority of the chamber — which relies substantially on the doctrine set forth in Sentencia N° 2018-005758 of 15:40 hours on April 12, 2018, a precedent in which the undersigned filed a dissenting vote together with magistrate Cruz Castro — we consider that Ley N° 9544, entitled "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," contains a substantial procedural defect in the legislative process, by reason of the violation of the constitutional provision requiring the mandatory consultation, based on the arguments set forth below.
A.- Text of the law not submitted for consultation to the Corte Suprema de Justicia.
At the heart of the discussion, as is correctly stated in the majority opinion, lies the determination of whether, under the terms of Art. 167 of the Constitución Política, the legislative body was or was not obligated to submit the aforementioned bill for consultation to the Poder Judicial — an obligation that has, moreover, been incorporated into articles 126 and 157 of the Reglamento de la Asamblea Legislativa, which set forth the procedure to be followed for that purpose. From the constitutional text it follows that the mandatory consultation with the Corte Suprema de Justicia is only triggered when the bill relates to the organization or functioning of the Poder Judicial. Accordingly, the crux of the matter lies in what is to be understood by "organization or functioning of the Poder Judicial." In this regard, the majority opinion holds that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers exclusively to matters affecting the jurisdictional function (función jurisdiccional), and not to strictly administrative matters.
In support of this position, the majority cites Sentences N° 1998-5958 of 14:54 on August 19, 1998, N° 2001-013273 of 11:44 hours on December 21, 2001, and N° 2008-5179 of 11:00 hours on April 4, 2008. Likewise, with respect to the specific subject of the Judicial Branch Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones del Poder Judicial) and the obligation of the Legislative Assembly to consult with the Supreme Court of Justice on bills dealing with that fund, the majority opinion cites Sentences N° 1995-3063 of 15:30 on June 13, 1995 and N° 2002-4258 of 9:40 on May 10, 2002, on the basis of which it concludes that in those cases, the Legislative Assembly is not obligated to consult the bill with the Supreme Court of Justice, in the terms set forth in Article 167 of the Constitution. However, in the opinion of the undersigned, such an interpretation of that constitutional provision, restricted solely to the jurisdictional function, is derived neither from the text of the Fundamental Charter nor from the jurisprudence of this Court.
Indeed, as regards the cited precedents, it is worth noting that the first three sentences do not support what the majority asserts in its opinion. Thus, Sentence N° 1998-5958 of 14:54 on August 19, 1998 addresses only the term "functioning" — from the pair "organization or functioning" — of the Judicial Branch, without referring to the matter of the organization of that Branch of Government. Specifically, in the passage quoted from that ruling, the Court clearly states that "…the matters that mandatorily require consultation with the Supreme Court of Justice are those that concern 'the organization or functioning of the Judicial Branch,' where the term 'functioning' refers not only to aspects of the internal administrative regime of judicial offices, but also to the procedural rules governing the conduct of the various matters brought before those courts," which makes it evident that the subject of organization — which is what is relevant here — was not addressed in that ruling simply because the case did not require it, since it concerned the mandatory legislative constitutional consultation on the bill for "Addition of a new Chapter IV, entitled 'On the writ of habeas data,' to Title III of the Law of Constitutional Jurisdiction, Law N° 7185 of October 19, 1989," which was processed under legislative file number 12.827, where the matter in dispute was that the reform affected the jurisdictional function of the Judicial Branch.
That this is so follows from the very text of the sentence, which is not quoted with sufficient completeness in the majority opinion: "…the matters that mandatorily require consultation with the Supreme Court of Justice are those that concern 'the organization or functioning of the Judicial Branch,' where the term 'functioning' refers not only to aspects of the internal administrative regime of judicial offices, but also to the procedural rules governing the conduct of the various matters brought before those courts. And, in Costa Rica, constitutional jurisdiction is indisputably judicial, since both the Political Constitution and the Law of Constitutional Jurisdiction integrate this Court within the structure of the Supreme Court." Read in its proper context, this passage cannot be interpreted as the Court having restricted the pair "organization or functioning" to jurisdictional matters alone; rather, in the cited case, this Constitutional Tribunal referred only to the aspect of the Judicial Branch's jurisdictional function because that was the matter in dispute, without excluding or addressing the subject of the administrative organization of that Branch of Government.
The same may be said with respect to Sentence N° 2001-013273 of 11:44 hours on December 21, 2001, to which the majority refers. That case involved a discretionary legislative constitutional consultation regarding the bill for "Amendment to the Penal Code, Law number 4573 and its amendments," legislative file number 14.158. Again, it concerned a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Consequently, the Court did not address that latter subject in that case either, since doing so would have been unnecessary. It is for this reason that the substantive discussion focused on and was exhausted by aspects of the Judicial Branch's jurisdictional function: "…said consultation [the one required by Article 167 of the Political Constitution] is mandatory when what is under discussion 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 competencies, but also those that govern the manner in which those competencies are exercised, that is, the way in which the Judicial Branch carries out its jurisdictional function, including strictly procedural rules." It is certainly clear that what was expressed was limited to examining matters relating to the exercise of the jurisdictional competencies of the Courts of Justice, since that was the specific subject of that consultation.
However, the Court did not state that this is the only circumstance in which consultation under Article 167 of the Political Constitution is mandatory; rather, what it said is that in that case consultation is mandatory, without addressing other cases in which it is equally mandatory, such as those relating to the administrative organization and competencies of the Judicial Branch.
Separate comment is warranted regarding Sentence N° 2008-5179 of 11:00 hours on April 4, 2008, because in that ruling — unlike the reading offered by the majority — it is in fact established that matters relating to the administrative organization of the Judicial Branch fall within the scope of the mandatory consultation required by the aforementioned Article 167 of the Constitution. On that occasion, this Constitutional Tribunal, as the supreme interpreter of the Political Constitution, when addressing the terms "organization or functioning" of the Judicial Branch contained in Article 167 of the Political Charter as a condition for the mandatory consultation of that Branch of Government by the Legislative Assembly, held that "…a bill deals with such matters when its provisions contain explicit rules providing for the creation, substantial modification, or suppression of organs that are strictly jurisdictional or of an administrative nature attached to the Judicial Branch, or when it creates, ex novo, substantially modifies, or eliminates functions that are materially jurisdictional or administrative…." This does not represent a change of position by this Tribunal on the matter; rather, within the jurisprudential line already established, it constitutes a more precise determination of the terms "organization or functioning" used in Article 167 of the Political Constitution to define the cases in which bills pending in the legislative process must be mandatorily consulted with the Supreme Court of Justice.
That sentence did not in any way expand the circumstances giving rise to mandatory consultation; on the contrary, it defined them in a broader and more precise manner. Accordingly, it was clearly determined there that in those cases — and only in those cases — consultation is mandatory. This is why that same sentence stated: "[i]t should be noted that such interpretation is compelled by the need to maintain the balance of powers, without privileging one or another constitutional organ, so that each may exercise its functions independently and separately as the constitutional text itself requires (Article 9 of the Constitution). In other words, the precise definition of such concepts avoids any collision, overreach, or exacerbation of the respective functions, in the interest of maintaining the balance and restraint of powers, since the purpose of the norm consists not only in the functional independence and budgetary autonomy of the Judicial Branch, but also in the balance between the Legislative and Judicial Branches.
Indeed, a broad interpretation of the terms used by the original constituent assembly, on the part of the Full Court, could lead to certain matters that in the strict sense do not concern the organization and functioning of the Judicial Branch being unjustifiably subject to a reinforced law, thereby needlessly slowing or obstructing the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional provision, based on the mistaken belief that the bill does not concern the organization and functioning of the Judicial Branch, could result in harm to the functional independence and budgetary autonomy of the Judicial Branch." From the foregoing it follows that everything relating to the organization and functioning of the Judicial Branch — and only and strictly this, in order to preserve the balance between functional independence and budgetary autonomy of the Judicial Branch on the one hand, and the ordinary legislator's freedom of configuration on the other — is what obligates the legislative organ to carry out the consultation with the Supreme Court of Justice, and this cannot be extended to other subject matters.
In this regard, there is no doubt whatsoever that the Constitutional Court has understood that matters relating to the administrative organization of the Judicial Branch, and not merely those concerning the direct or indirect impact on the jurisdictional function, obligate the legislative organ to submit the consultation in the terms expressed in Article 167 of the Political Constitution. Nor could it 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 organs in the strict sense — also has repercussions on the administration of justice service it provides, and on the independence constitutionally guaranteed to that Branch and to judges as officials called upon to administer justice.
Furthermore, Sentences N° 1995-3063 of 15:30 on June 13, 1995 and N° 2002-4258 of 9:40 on May 10, 2002, cited in the majority opinion as the basis for concluding that bills on the specific subject of the Judicial Branch Pension and Retirement Fund need not be consulted with the Supreme Court of Justice, likewise lack the capacity to provide the support that the majority of the Court claims they provide with respect to this matter.
In the first of those sentences, the Court heard several consolidated actions of unconstitutionality (acciones de inconstitucionalidad) filed against the Pension Framework Law (Ley Marco de Pensiones), Law N° 7302 of July 8, 1992. On that occasion, the only thing this Tribunal affirmed was that, in the case of the Pension Framework Law, there existed no constitutional obligation to consult with the Judicial Branch regarding the respective bill, for the simple reason that said bill does not affect judicial branch employees; and therefore, it does not fall within the scope of Article 167 of the Political Constitution. Likewise, in that ruling, the Court indicates that functioning is understood to refer to the jurisdictional function, but makes no reference whatsoever to the subject of the organization of the Judicial Branch, which is what is at issue here.
Likewise, in Judgment N° 2002-4258 of 9:40 a.m. on May 10, 2002, the Chamber (Sala) adjudicated consolidated actions of unconstitutionality (acciones de inconstitucionalidad) filed against Article 4 of Ley N° 7605 of May 2, 1996, insofar as it amends Articles 224, 226, and 236, subsections 1) and 2), of the Ley Orgánica del Poder Judicial, N° 7333 of May 5, 1993, and also, by connection and consequence, against Article 33, subsection a), of the Invalidity, Old Age, and Death Regulations (Reglamento de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social. The Chamber dismissed, among other issues raised, the alleged violation of Article 167 of the Constitution (Constitución Política), on the ground that the challenged reform to the pension regime of judicial employees bore no relation to the organization or functioning of the Judicial Branch (Poder Judicial), for the definition of which it referred to what had been stated in Judgment N° 1995-3063 of 3:30 p.m. on June 13, 1995—which, as already noted, addressed only the term "functioning of the Judicial Branch" without making any reference whatsoever to the question of its organization.
Thus, contrary to the view expressed by the majority, those judgments do not exclude the subject matter relating to the Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones) of the Judicial Branch from the mandatory consultation with the Corte Suprema de Justicia, but only to the extent and degree that the respective bill bears no direct relation to the "organization or functioning of the Judicial Branch"—matters that were certainly not at issue in the actions brought before this Chamber and resolved in the cited judgments. Accordingly, those judgments do not exclude the subject matter concerning the Fondo de Pensiones y Jubilaciones del Poder Judicial from the mandatory consultation with the Corte Suprema de Justicia, as the majority holds, because that subject matter, considered in itself, is not excluded from such consultation; rather, whether consultation is required will depend on whether the bill in question does or does not contain provisions relating to the organization or functioning of that Branch—a question that must be determined in advance in each individual case in order to establish whether or not such consultation is mandatory.
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 Constitution, necessarily implies the power of that Branch of the Republic to organize itself, with the aim of preventing, in particular, the intrusion of political interests into its function. And it is this organizational independence—both administrative and jurisdictional—that is also protected under Article 167 of the Constitution. In this regard, in the opinion of the undersigned, it is a serious conceptual error to conflate or equate the jurisdictional function in the broad sense—including the function auxiliary to the jurisdictional function—with the strictly administrative function. The jurisdictional function is a special function, distinct from the administrative function carried out by officials of the Executive Branch or the decentralized sector.
The Administration of Justice is one thing, and the Public Administration is quite another, given the distinctive characteristics of the jurisdictional function as compared to the merely administrative function. Precisely one of those characteristics—without which the jurisdictional function could not be properly exercised—is independence, in its dual dimension: both that of the Judicial Branch considered as such, and that of the judge and other auxiliaries of the jurisdictional function. To grasp the delicate task performed by the judges of the Republic, with the collaboration of the officials who assist and support them in their duties—and without whom those judges could not properly carry out their function—it suffices to bear in mind that they decide the cases submitted to their consideration with the force of res judicata (cosa juzgada); that is, they determine the truth with the authority of law in each case, and once that status is attained, their decision cannot, in principle, be reviewed.
This implies an extremely delicate function and a great responsibility, one that could not be discharged if the functional independence of the Judicial Branch and of the judges who comprise it were not guaranteed. And in this regard, there can be no genuine independence if the salaries and pensions and retirement benefits of judges and judicial auxiliaries are not commensurate with their responsibilities, which are far graver than those of any other official exercising a purely administrative public function. It follows that the two groups cannot, in any way, be placed on an equal footing—neither in terms of responsibilities, nor functions, nor salaries, nor retirement rights.
There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, then one of the most complex and difficult to carry out in the Constitutional State under the Rule of Law (Estado Constitucional de Derecho) 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 carry the force or authority of res judicata. This implies not only a great responsibility, but also the need for a set of principles and guarantees that enable the proper exercise of that function. In this context, the independence of the Judicial Branch—both organic and functional—presents itself as a sine qua non condition for the exercise of that delicate function. It falls to the judge to decide on the only possible interpretation of the law, the Constitution, and the conventionality standard (parámetro de convencionalidad), which would be impossible without adequate independence.
But this independence would be illusory if it did not necessarily entail adequate remuneration and retirement rights commensurate with the functions and responsibilities of both the judge properly so called and the personnel who assist and support him or her in that function. For this reason, in matters of remuneration and retirement, judicial personnel cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in exercising the jurisdictional function justifies, with respect to the subject matter at hand, that the retirement benefit or pension of judicial employees 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 on the law in force in a society, and therefore on social peace. Throughout all of this, judicial independence plays a leading role, for in a Constitutional State under the Rule of Law—that is, in a Democratic State—this principle has an institutional dimension in the Judicial Branch itself, as against any of the other Branches of State, which also necessarily implies the personal and functional independence of the judge, not only in relation to those other Branches of State, but even in relation to the hierarchical superiors within the Judicial Branch.
Today, there is no Rule of Law if the Judicial Branch—with all its employees included—does not enjoy real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest level of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the Convención Americana de Derechos Humanos has established, as a human right, the right to be heard by an impartial judge. In this regard, Article 8.1 provides:
"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 tribunal, previously established by law, in the substantiation of any criminal charge 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 State under the Rule of Law. But for that independence to be real, it must be not only organizational and functional, but also economic. This economic independence is also guaranteed in Article 177 of the Constitution, which provides that the ordinary budget bill must allocate to the Judicial Branch at least 6% of the ordinary revenues estimated for the fiscal year. The intention of the original Constituent Assembly in enacting this provision—which establishes a constitutionally earmarked expenditure (egreso constitucional atado)—is to guarantee, among other things, that judges and the rest of the judicial support staff have compensation adequate to the complexity and difficulty of the jurisdictional function, which implies an equally adequate retirement benefit or pension in accordance with that function and with the special prohibitions that such function entails for judicial employees, prohibitions that do not apply to public servants of the other Branches of State.
The constitutional provision prevents the budgetary allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be viewed in its full breadth, since the salaries of judges and support staff, as well as the pension and retirement regime applicable to them, must bear a strict relationship to the work they perform, on pain of rendering the principle of judicial independence nugatory. It follows that the economic, personal, functional, organic, and institutional independence—both of the Judicial Branch itself and of judges and judicial auxiliaries—is essential in a Constitutional State under the Rule of Law. In light of all this, one way of guaranteeing the independence of the Judicial Branch, of the judges of the Republic, and of judicial auxiliaries, is through a dignified retirement benefit or pension, commensurate with their constitutional functions.
In the statement of reasons that led to the enactment of the Ley de Jubilaciones y Pensiones Judiciales as an addition to the Ley Orgánica del Poder Judicial, deputy Teodoro Picado Michalski, on June 2, 1938, stated:
"The Judicial Branch is one of the three main pillars on which the Government of the Republic rests; and it is its servants—those who, by virtue of exercising highly delicate functions for the very life of Society, are required, more than other employees, to possess greater learning, probity, and diligence. And it is for this reason, surely, that as judicial employees are called upon to dedicate themselves fully, over many years, to the most important task of administering justice—with the noble aim of securing their subsistence upon reaching old age or when, due to physical ailments, they can no longer work—that there have been repeated calls before the Congress, in various legislative sessions, for the enactment of a law that addresses the difficult situation of officials and employees of the Judicial Branch." It must not be overlooked that judges (personas juzgadoras) and judicial personnel (funcionariado judicial) in general are subject to a system of prohibitions and incompatibilities (régimen de prohibiciones e incompatibilidades) of far greater intensity and rigor than the system of incompatibilities and prohibitions applicable to the rest of public officials, which makes their situation of an entirely different nature.
The regulations that apply to the administrative personnel of the entire public sector cannot also be applied to judicial officers. In this regard, the constitutional principles of reasonableness and proportionality oblige that this asymmetric system of incompatibilities and prohibitions—which responds to the very nature of the jurisdictional function (función jurisdiccional) and the administrative function—must be accompanied by economic compensation, both in terms of salary and upon termination of the employment relationship. But also the principle of equality, enshrined in article 33 of the Constitución Política, implies the prohibition of treating unequals as equals, because from this discrimination contrary to constitutional law (Derecho de la Constitución) arises. In the case of judges and judicial officers, there exist objective, reasonable, and justified conditions, grounded in the very nature of the jurisdictional function exercised, for treating them differently from the rest of public servants in the various administrations; thus, far from incurring discrimination, the principle of equality regulated in the aforementioned constitutional provision is upheld.
This means that if there exists a differentiated retirement regime (régimen jubilatorio diferenciado) for the jurisdictional sector, it is not the result of an arbitrary, subjective, or capricious decision by the legislator, but rather stems from the specific and distinct nature of the jurisdictional function, which objectively and constitutionally justifies it.
The foregoing is not only derived from our own Constitución Política and the values and principles that inform it, but is also contained in various international instruments. 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 tenure of judges for such periods as may be established, their independence and their security, as well as adequate remuneration, pensions and conditions of service and retirement." Thereby, the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate remuneration, pensions, conditions of service, and retirement, proportionate to the complexity and difficulty of the jurisdictional function they exercise. This must also be understood as extending to auxiliary officers of justice, since 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 the interest of achieving a real and effective independence of the Judiciary and of 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/female judge to remuneration, the level of which shall be set to shield him/her from pressures aimed at influencing his/her decisions and, more generally, his/her judicial conduct, thereby altering his/her independence and impartiality.
6.4 In particular, the statute shall ensure for the judge/female judge who has reached the legal age for cessation of his/her functions, after having performed them professionally for a set period, the payment of a retirement pension whose amount shall be as close as possible to the level of his/her final salary in judicial activity." The aforementioned instrument seeks to achieve a genuinely and effectively independent Judiciary, which serves as a guarantee for citizens. Thus, adequate remuneration and pension for judges and court auxiliaries, under the terms expressed therein, constitute the proper and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.
Likewise, the "Statute of the Ibero-American Judge," approved at the Sixth Ibero-American Summit of Presidents of Supreme Courts and Highest Courts of Justice, held in Santa Cruz de Tenerife, Islas Canarias, España, on May 23, 24, and 25, 2001, echoes the same principles already cited in article 32, by establishing:
"Art. 32. Remuneration.
Judges must receive sufficient, irreducible remuneration that is commensurate with the importance of the function they perform and 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 completion of their years of service through retirement, illness or other legally prescribed contingencies, or in the event of personal, family, or property damages arising from the exercise of their 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 (Derechos Económicos, Sociales y Prestacionales) 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 embraced in Report No. 1 of November 23, 2001, issued by the Consultative Council of European Judges (CCJE), when examining the subject of the independence and security of tenure (inamovilidad) of judges. With respect to the subject of judges' salaries, that Council recommended:
"…it is generally important (and especially in the case of new democracies) to lay down specific statutory provisions guaranteeing judges' salaries protected against reductions and ensuring in fact 'increases in salaries in line with the cost of living.'" These recommendations are fully applicable to the subject of pensions and retirements of judges and judicial servants in general, as they are intimately related to the principle of independence of the Judiciary, as has already been set out above.
Not only in the international sphere has this matter been regulated in the aforementioned terms, but it has also been the subject of regulation within the Judiciary itself, with considerations similar to those stated.
Indeed, the Corte Plena approved the Charter of Justice and Rights of Users of the Judicial System (Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial), in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judiciary and of judges in their various facets. In article 24, concerning the material conditions of judicial independence, it is established that the State must guarantee "the economic independence of the Judiciary, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budgetary appropriations," which is intimately related to the provisions of the already-cited article 177 of the Constitución Política, regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judiciary, as an expression of that independence.
Likewise, article 49 of the aforementioned Charter also enshrines, in the same manner as the international instruments examined, the principle of the judge's irreducible salary (salario irreductible): "Judges must receive sufficient, irreducible remuneration that is commensurate with the importance of the function they perform and the demands and responsibilities it entails." As already explained, this special regulation is grounded in the independence of the Judiciary, which must also be extended to the subject of the pension or retirement of judges and auxiliary court personnel, for otherwise the principle of judicial independence would not be possible.
Respect for judicial independence, which is one of the purposes pursued by article 167 of the Constitution, was also expressly regulated in the Charter, 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 give effect to the independence of the judiciary." And, precisely, the unconsulted intrusion of the legislative body into the organization and functioning of the Judiciary—whether by creating, modifying, or eliminating judicial or administrative bodies or competencies—is constitutionally impermissible, as it constitutes a flagrant violation of the principle of judicial independence.
Finally, it should be noted that the independence of the Judiciary is a principle of a particular and specific nature, distinct from that of the other Branches of the State, in that it consists of a shield of protection against the intrusion of political power, a protection from which the other Branches of the State do not benefit. This is because the Judiciary is the branch that administers justice, and justice must be impartial and free from any external pressure. In this regard, economic pressure—whether in the form of salary or stipend, or in the amount and conditions of the retirement or pension of judges and other court auxiliaries—plays a transcendent role in the achievement of a genuine and effective independence of the Judiciary.
Based on the foregoing considerations, it is then appropriate to examine the content of the law in order to determine whether or not it affects the organization or functioning of the Judiciary, in the terms expressed.
In this vein, as was the case when the legislative consultation related to the bill for a Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa was heard—now enacted as Ley N° 9544 of April 24, 2018, entitled "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"—the reasons for the dissenting vote (voto salvado) are maintained. That legislative consultation was resolved by Sentencia N° 2018-005758 at 15:40 hours on April 12, 2018, in which the various objections regarding article 239 of the law in question were addressed. On that occasion, the legislative proceedings were reviewed insofar as they create a Board of Administrators of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which is defined as a body of the Judiciary, with functional, technical, and administrative independence, to exercise the powers and attributions granted to it by law; a body that is granted functional independence and assigned a series of competencies, including, among others, raising the employee contribution (aporte obrero) to the Pension Fund and ruling on retirement applications, which implies a modification to the structure of the Judiciary.
Likewise, competencies are removed from the Superior Council of the Judiciary (Consejo Superior del Poder Judicial); and, furthermore, article 240 of the bill confers upon the Corte Plena the obligation to issue regulations for the election of the members of that Board of Administrators, thereby assigning it a competency that it does not currently have. The aforementioned provisions of the Law establish:
"Article 239 – The Administrative Board of the Judiciary Retirement and Pension Fund (Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial) is hereby created as a body within the Judicial Branch, with full functional, technical, and administrative independence to exercise the powers and attributions conferred upon it by law.
The Board's responsibilities shall include:
Based on the results of the actuarial studies and with authorization from Supén, the Administrative Board may modify the initial parameters established in this law with respect to eligibility requirements, the benefit profile, and the contributions and quotas of judicial employees and of the retirements and pensions provided for in the law, provided that doing so is necessary to guarantee the actuarial balance of the Scheme.
The Board shall have instrumental legal personality (personalidad jurídica instrumental) to exercise the attributions assigned to it by law and to represent the Fund in judicial and extrajudicial proceedings.
It shall be financed by an administrative-expense commission derived 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 shall be used to pay the per-diem allowances (dietas) 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.
Article 240 – The Administrative Board shall be composed of three members democratically elected by the judicial community and three members appointed by the Corte Plena, with a gender perspective applied in both cases. Each full member shall have an alternate to substitute in their absences, who must meet the same requirements as the full member.
Board members shall serve five-year terms, after which they may be re-elected, all in accordance with the regulations to be issued by the Corte Plena after consulting the professional associations of the Judicial Branch.
At the first regular session, the Board shall designate the person who will preside over sessions; this designation shall be made for a one-year period and must alternate each year between representatives of the judicial community and of the Corte Plena. The person who will substitute in case of absence shall also be designated. The presiding member shall have a casting vote in the event of a tie.
Members of the Administrative Board shall receive no per-diem allowances but shall be granted the leave necessary to attend sessions. To be a member of the Board, the following requirements must be met, and they must be documented and demonstrated before Supén:
The following persons may not be members of the Board:
The composition of the body must guarantee equal representation of both sexes, ensuring that the difference between the total number of men and women does not exceed one." From a reading of Article 239, quoted above, it is clear that it creates a new body within the structure of the Judicial Branch, called the "Administrative Board of the Judiciary Retirement and Pension Fund," which is granted full functional, technical, and administrative independence to exercise the powers, competencies, and attributions conferred upon it by law, enumerated in subparagraphs a), b), c), d), e), f), g), h), and i) of that same article, for the fulfillment of its mandates, for which purpose it shall have instrumental legal personality. Accordingly, an administrative body is created ex novo and placed within the structure of the Judicial Branch, with defined competencies and attributions; and, concomitantly, competencies and attributions previously granted — by formal law — to the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) are withdrawn and eliminated.
This circumstance alone, for the reasons stated, compels the legislative body to mandatorily consult the project with the Judicial Branch, in the terms set forth in Article 167 of the Political Constitution, inasmuch as it modifies the administrative organization of the Judicial Branch through the creation of a new administrative body and the suppression of the Superior Council's competencies in favor of this newly created body, which clearly affects the independence of that Branch of the Republic.
The same must be said with respect to Article 240 of the law, insofar as it addresses matters that are inherent to the administrative organization of the Judicial Branch — specifically the composition and appointment of the members of the Administrative Board of the Judiciary Retirement and Pension Fund, their terms of office, the designation of the person who is to preside over it, and the requirements for membership on that Board, among others. It should be noted that, although the Corte Plena is empowered by the Organic Law of the Judicial Branch to issue the internal regulations necessary for the proper functioning of the Judicial Branch, the fact that the law imposes upon it the obligation to regulate matters relating to the terms of office of the members of the Administrative Board of the Judiciary Retirement and Pension Fund — without the substitute text of the bill that was ultimately approved in First Debate having been consulted with the Supreme Court of Justice — constitutes a serious encroachment on 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 thereby a violation of judicial independence.
At first glance, the aforementioned legislation strips the President of the Supreme Court of Justice — and consequently the President of the Superior Council of the Judicial Branch — of the competency granted by the Organic Law of the Judicial Branch to administer the Judiciary Retirement and Pension Fund, precisely in accordance with the investment policies established by the Corte Plena, as is currently contemplated in Article 81, subparagraph 12.
Notwithstanding the foregoing, the substitute text of the bill accepted by the Special Committee at its 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 affirmed in the majority opinion, at folio 2625 of the legislative file it is recorded that, pursuant to a motion approved on July 27, 2017 by the Special Committee, through official letter number AL-20035-OFI-0043-2017 dated July 31, 2017, the Head of the Legislative Assembly's Committee Division granted a hearing to the Judicial Branch with respect to the majority affirmative report, on the basis of which the Supreme Court of Justice issued its opinion through official letter number SP-253-17 dated August 10, 2017, as recorded at folios 2759 to 2807 of the legislative file. This means, therefore, that the Judicial Branch was in fact consulted and expressed its opinion with respect to the substitute text approved by the Special Committee on July 27, 2017, which occurred even before that text was considered by the Plenary.
Despite this, that text was not the one approved in First Debate by the Legislative Plenary on October 30, 2017, published in Supplement No. 268 to Digital Gazette No. 212 of November 9, 2017, since what was approved is a substitute text introduced by motion pursuant to Article 137 of the Rules of Procedure of the Legislative Assembly. This latter text was not consulted with the Supreme Court of Justice, as was required, pursuant to the analysis set forth above, under the terms of Article 167 of the Political Constitution.
As argued by the petitioners, a constitutional violation occurred in the legislative procedure. In this regard, it should be noted that this Constitutional Tribunal has jurisdiction to hear and rule on defects in the formation of laws when any substantial requirement or procedural step provided for in the Constitution or in the Rules of Procedure of the Legislative Assembly is breached. This is in accordance with Article 73, subparagraph c), of the Constitutional Jurisdiction Act (Ley de la Jurisdicción Constitucional), which states:
"Article 73. – An action of unconstitutionality shall lie:
…
…".
Therefore, under the Ley de la Jurisdicción Constitucional, when the subject of analysis is a formal statute enacted by the Asamblea Legislativa, what is at issue is ex-post constitutional review (control posterior de las leyes) of laws or legislative acts, carried out by examining the legislative record (expediente legislativo) in order to determine whether the statute's enactment procedure was tainted by any essential procedural defect (vicio esencial). Accordingly, the defect identified in the legislative procedure for Ley N° 9544, titled "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," must be declared on account of the failure to submit the substitute text (texto sustitutivo) approved at First Reading (Primer Debate) for consultation with the Corte Suprema de Justicia—since this failure violates Article 167 of the Constitución Política by affecting the administrative organization of the Poder Judicial through the creation of a new administrative body within its structure, the conferral of substantial powers over pensions and retirement benefits on that body, and, at the same time, the removal of powers previously conferred by law on the Consejo Superior del Poder Judicial (Articles 239 and 240 of the bill).
In support of the foregoing, this Court, in Sentencia N° 2001-13273, issued at 11:44 a.m. on December 21, 2001, while resolving a legislative constitutional referral (consulta legislativa de constitucionalidad) concerning a bill to amend the Código Penal insofar as it modified aspects relating to the organization or functioning—purely administrative in nature—of the Archivo Judicial, held unanimously that:
"Likewise, they modify the scope of functions of the Archivo Judicial, increasing the volume of data it must record. All of the foregoing undoubtedly entails a change in various rules governing the functioning and organization of the Poder Judicial. Notwithstanding the foregoing, the Asamblea Legislativa failed to carry out the required consultation with the Corte Suprema de Justicia (at least no such consultation appears in the certified copy of the record transmitted by the President of the Directorio), nor had those aspects previously been included in the texts submitted to the Corte Suprema de Justicia for consultation; accordingly, the Court finds that a violation occurred of the duty imposed by Article 167 of the Constitución Política with respect to the functional independence (independencia funcional) recognized by the framers of the Constitution in the Poder Judicial, and that the proceedings conducted prior to the approval of the amended report must therefore be understood to be null and void from a constitutional standpoint and must be so declared." It must be noted from the foregoing that the defect identified was not cured at Second Reading (segundo debate), even had the Law been approved by a qualified majority (mayoría calificada), since that outcome would only be possible if the text being approved were one that, because it affects the organization, structure, and functioning of the Poder Judicial—as in the present case—was required to be submitted for consultation, and the legislative body thereafter persisted in approving it contrary to the technical opinion of the judicial branch.
None of this occurred in the legislative procedure, since Ley N° 9544 of April 24, 2018 did not even obtain a qualified vote at the Second Reading, and, worse still, the text that was approved had not been submitted for institutional consultation (consulta institucional). The crux of the problem before us is, in fact, the approval—at First Reading—of a text that had not been submitted for consultation, in contravention of the provisions of Article 167 of the Constitución Política, a procedural defect that is insurmountable and incurable. This is because, while it is true that the substitute text of the bill adopted by the Comisión Especial at its session of July 27, 2017, was submitted to the Corte Suprema de Justicia for consultation, that text was not the one ultimately approved at First Reading; rather, a new substitute text was approved, one that had not previously been submitted for consultation, notwithstanding its direct bearing on the organization, structure, and functioning of the Poder Judicial, as has been set forth above.
Moreover, although the prior text approved by the Comisión Especial at its session of July 27, 2017, was submitted to the Court for consultation, the Court's expression of disagreement with that text made a qualified vote by the full legislature mandatory, pursuant to Article 167 of the Constitution—which likewise did not occur.
It is worth recalling that the institutional consultation serves the purpose of protecting judicial independence, which is far more complex than simply protecting a jurisdictional privilege. The mandatory institutional consultation must be timely; otherwise, it would be a paper obligation incapable of providing the genuine safeguards that the constitutional text seeks to establish among the co-equal Branches of the Republic. The maintenance of a contrary position—and doing so permanently—by the majority of the Court will not be sustainable over time, for even amid these circumstances of inflection and implosion in the functional and budgetary independence of the Poder Judicial, what is at stake above all are the citizens' guarantees that the framers of the Constitution sought to secure in Article 167, and later enhanced through the amendment to Article 177 of the Constitución Política.
The Corte Plena, in Sesión N° 27, dated August 7, 2017, Artículo XXX, upon responding to the consultation submitted to the Asamblea Legislativa regarding the Majority Affirmative Report (Dictamen Afirmativo de Mayoría) approved by the aforementioned Comisión Especial, resolved as follows:
"It is considered to relate to the structure and functioning of the Poder Judicial, since it directly affects the life plans of all judicial employees, as it entails a reduction in retirement benefits, even for those who have met all legal requirements to fully exercise their right to retire.
This includes the payment of the required contributions; income tax payments; contributions both to the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Poder Judicial and to the system of the Caja Costarricense del Seguro Social, and a series of other burdens that, if the text were approved as presented by the reporting Committee, would amount to confiscatory measures.
One cannot overlook the fact that the creation and nature of the Retirement and Pension Fund of the Poder Judicial reflects criteria of stability, independence, preparation, and competence, as established by Article 192 of the Constitución Política, with the aim of encouraging the retention of trained and qualified personnel within the institution; and that the reduction in retirement benefits represents a disincentive for the recruitment of highly qualified professionals, who, given the economic outcome of a future assessment, would prefer to pursue their careers in another field.
The judicial career (carrera judicial), the prosecutorial career, the Public Defender career, and the careers of staff in general are all adversely affected, since these employees bear salary contribution burdens four times greater than those in other pension regimes, yet would receive a lesser benefit.
Furthermore, the renewal of staff who manage to remain is also adversely affected. The Poder Judicial would end up with elderly employees who continued working solely because of the reduction their incomes would suffer were they to retire.
Judicial employees would find themselves at a crossroads: while they may wish to exercise that right and be motivated to retire and rest, they would be placed in a position of having to assess their financial situation, likely being forced to seek new sources of income in order to cover their ordinary expenses or those incurred before retirement, as well as those naturally arising from their age.
However, that process also has its constraints: from a legal standpoint, the Ley Orgánica del Poder Judicial prohibits retired employees from taking other employment, and it is a social reality that, past the age of forty, there are practical limitations with respect to re-entering the labor market.
It has a strong bearing on the structure and functioning, since it diminishes the Poder Judicial's competitiveness in the labor market, to the detriment of the quality of the administration of justice. The effective salary of positions is reduced by the contribution to the pension and retirement regime, which is four times greater than the contribution under other regimes. This makes it more difficult to attract human resources, and public service suffers as a result.
Moreover, the regulation of the Retirement and Pension Fund of the Poder Judicial must not be assessed solely from an economic perspective, since what is at stake are fundamental—and inalienable—rights associated with every working person, who, throughout their working years, contributed at a rate above the general rate to a regime with the expectation of receiving a pension that would allow them to meet their needs and to enjoy their retirement years peacefully and with a good quality of life alongside their families.
The imposition of this new tax burden affects vulnerable population groups—such as elderly persons—harming the most vulnerable, those who are precisely in greatest need of State protection.
The proposed tax is imposed at the most vulnerable point in a retiree's life, when they are approaching or have already reached old age. It cannot be overlooked that it is at this stage that people generally require more medical attention, special care, and the like; and that, during their working lives, each according to their level of income, they contributed to the regime with the expectation of having the resources needed to face this stage of life—resources that would be cut short if this bill were approved.
It would cause significant social impact, since retirees would unexpectedly lose a substantial portion of their income while retaining a pre-established level of expenses, resulting in repercussions not only economic but also in terms of health—contrary to the purpose envisioned for a pension system, which is to provide sufficient income during post-working life. In this regard, it is important to recall that, in many cases, the retiree continues to provide care and financial support to other elderly persons or to minors.
Taking into account the observations raised regarding the bill filed under expediente 19922 (20035)—which are grounded in and supported by the actuarial study conducted by the IICE—and based on the powers conferred by Article 167 of the Constitución Política and Article 59, subparagraph 1) of the Ley Orgánica del Poder Judicial, it is the assessment of this Court that the consulted text does indeed affect the structure, organization, and functioning of the Poder Judicial, and that, accordingly, the Asamblea Legislativa must take into account what the Corte Plena has stated with respect to each aspect of the bill under consultation, unless a qualified majority is available to depart from that binding opinion.
This has been communicated to the legislative branch in connection with other bills submitted for consultation, such as those reviewed in Corte Plena sessions números 57-14 of December 8, 2014, artículo XVIII; 13-15 of March 23, 2015, artículo XXXVII; 2-16 of January 18, 2016, artículo XVIII; and 14-17 of May 30, 2017, artículo XIX, among others, in which the Corte Plena found it necessary to note the impact of the respective bills on the internal structure of the Poder Judicial.
As a corollary, with respect to the bill filed under expediente n° 19922, a negative opinion must be issued, as it affects the structure, organization, and functioning of the Poder Judicial." The final portion of the aforementioned constitutional article (167) states verbatim that "to depart from the opinion of the latter [the Supreme Court of Justice], a vote of two-thirds of all members of the Legislative Assembly shall be required"; and that final text—which in any event was not submitted for consultation—was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). In the second debate, it did not obtain the qualified majority, reaching only thirty-four votes (folios 4437, 4608 and 4637 of the legislative file).
B.- The legal and social dynamics that informed the reform to Article 177 of the Constitution. It is necessary to address the majority's reasoning, which, with respect—but with equal conviction—we consider to employ a lax interpretation of the obligation of institutional consultation established in Article 167 of the Constitution, beyond what has already been said above. It is clear that, in general, the foundational constitutional doctrine underlying institutional consultation rests on similar grounds: to ensure that the legislator has firsthand access to the best information for legislating, that is, to have specific technical expertise at hand. This reflects the Constituent Assembly's recognition of institutional autonomies, and, to an even greater degree, the defense of the independence that belongs to a Branch of State or a fundamental constitutional organ of the State. In the processing of complex legislation—such as bills that have met with an opposing opinion from the Judicial Branch—a qualified majority of legislators is most needed to promote significant changes in legislation through genuine consensus.
Although this Court, in some of its decisions, has held that institutional consultation is not required for bills of a national or general character, this jurisprudential criterion alone cannot suffice to rule out the need to elevate the legislative procedure in the Legislative Assembly when it involves the qualified majority established in Article 167 of the Constitution. This must be assessed not only in reference to matters related to the institutional autonomy of the Judicial Branch, but especially in reference to those involving a direct or indirect bearing on judicial independence, which is guaranteed by the Constitution through the fundamental organic structure of the State. This is particularly so when, as in the case before us, there have been various procedural defects in the legislative process, which will be addressed below.
It is clear that the criteria for denying institutional consultation on the grounds that a bill is of a national or general character cannot be applied indiscriminately, particularly because under such a characterization a large number of bills that affect the national budget would qualify—in that situation, the vast majority would have national scope, a designation used to defend public objectives viewed through economistic criteria. On the contrary, this minority holds that the jurisprudential criterion cited by the majority does not apply when the bills at issue could affect the organization of the Judicial Branch as a fundamental organ of the State. It is clear that judicial scrutiny must be more demanding, given the more enduring effects on the judicial function (which is universal and exercises full jurisdiction over all legal disputes), which expresses the fundamental control functions—at least as much as, and more so than, those of semi-autonomous and autonomous institutions—because it relates to the functional specialization and independence of a branch of the Republic.
The absolute weight of the State's fundamental institutional structure must set the criteria for the examination and scrutiny that this Constitutional Court must conduct, so that it cannot be examined under the same terms applied to other autonomous institutions, since the consequences are evidently very different for the State and the general population. It suffices to note Sentencia N° 2017-009551 of 11:40 hours of June 12, 2017, which established that:
"…in general, the judicial function is universal and exercises full jurisdiction over all legal disputes that arise in the country. Universality refers to jurisdiction over all disputes submitted to the Courts of Justice, including those not expressly listed therein or in the law, by virtue of the principle of hermeneutic completeness (article 153 of the Constitution). Universality entails jurisdiction over all individuals in dispute, even in accordance with the general principles of Public International Law and Private International Law. The Judicial Branch has the authority to decide definitively on all disputes, channeling matters in accordance with the respective procedure of the procedural course, concluding, as a general rule, with a judgment—the normal means of terminating a proceeding—with the status of res judicata, which is an expression of the power and function of full and universal jurisdiction, and which entails the prohibition against reopening the same dispute, so as to prevent the perpetuation of conflicts and their threat to peaceful coexistence in society.
It is the tombstone that forbids reopening the discussion on the same facts." The Constituent Assembly, of course, assigned a specific field of action to the Judicial Branch so that it operates with independence—one that is nourished by and participates in the entire Western tradition of thought, inspired by the principles of impartiality and justice—and it simply cannot be compared to, or equated with, that of the lesser entities of the State. On the contrary, it is clear that Article 167 of the Constitution is situated in recognition of the institutional importance and functional autonomy of the Judicial Branch within the broader framework of the State.
Earlier in this same decision, it was also established that:
"This leads to the principle of functional legality, which entails the exercise of the State's constitutional competencies, the achievement of the core objectives of each branch without encroaching upon those of the other independent branches of equal rank, and the fact that when each branch exercises its functions of checks and balances it is able to control and limit the other branches, as authorized by the Constitution. In accordance with the distribution of the State's fundamental functions, when the Legislature enacts laws, it is subject to the supremacy of the Constitution and to the limits enshrined therein, which definitively conditions the regularity and permanence of those laws over time, and it may not directly apply them; as for the Executive Branch, it may not refrain from applying and implementing the provisions dictated by the Legislative Branch, nor from observing the provisions of the fundamental Charter; finally, the Judicial Branch may not resolve matters contrary to the norms applicable to a specific case, except by reason of conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Constitution, to which it remains subject.
In accordance with Articles 10 and 152 et seq. of the Constitution, it must ensure the regularity of all legislation, and thus may not apply invalid or unconstitutional norms, since, in addition to the fundamental function of administering justice, it must ensure that no action or omission violates the essential principles of every social and democratic State governed by the rule of law, including: the principles of legality, normative hierarchy, and respect for the fundamental rights and freedoms of the population. Accordingly, the Judicial Branch ultimately interprets and applies the Constitution, holding the power of constitutional review over norms and omissions—the monopoly of rejection—when legislation is contrary thereto, and likewise when it violates fundamental rights, because it is naturally the last guarantor of the principle of legality, the ultimate defender of the State's aims and objectives, and of the realization, through law on a case-by-case basis, of human well-being." Now, the decision addresses the general aspects of the Fund and its legal development from the beginning of the last century, in line with Sentencia N° 2018-5758 of 15:40 hours of April 12, 2018, to explain the legal development of social security and the pension regime of the Judicial Branch.
However, reference should also have been made to the fact that the shortcomings of the system also served as a spur at the constitutional level, since there were other reforms that were pursued to guarantee greater institutional stability and in favor of judicial independence. In this regard, reference must be made to the realization of one of the most important achievements for the country's institutional framework—one obtained through the reform to Article 177 of the Constitution—by which the economic independence of the Judicial Branch was guaranteed. It is therefore appropriate to note that if the institutional and social dynamics of that time were significant, those surrounding the amendment to the Constitution were even more so, and are by no means negligible, since they were aimed at strengthening the Judicial Branch and, with equal force, at producing protections within the ranks of its staff.
The economic and legal dynamics speak as much or more to this, for despite the legal achievements, and given the number of problems that existed in the period prior to the constitutional reform, a substantial improvement in that economic independence of the Judicial Branch within the Constitution itself was initiated from within the Plenary Court and was taken up by the Legislative Assembly. There is no doubt that the protections established by the derived Constituent Assembly in the reform are distributed equally over the stability of the judicial staff. Thus, limitations in facilities and infrastructure were addressed, along with providing better working tools, improving salaries, and increasing resources for the Judicial Branch's Retirement and Pension Regime, among other matters. The claims of the petitioners should have found resonance in this avenue of the unconstitutionality action, some of which are enumerated at the beginning of this dissenting opinion.
Judicial independence is defended with the very tools provided by the Constituent Assembly, among which the world's most consolidated democracies dedicate themselves to producing instruments of protection for judicial and economic independence—one of them being the qualified vote in cases where a bill affects the organization and functioning of the Judicial Branch.
In Sentencia N° 2006-07965 of 16:58 hours of May 31, 2006, this Court established that:
Although the Judicial Branch is preeminently tasked with the exclusive exercise of the jurisdictional function (función jurisdiccional)—as noted in the preceding considerando—it is also true that it exceptionally or extraordinarily exercises functions of an administrative nature (función administrativa). In that regard, it is necessary to note that the administrative function is neither constitutionally nor legally assigned exclusively to any single body or entity, nor does it possess a typical content that characterizes it, since, as legal scholars have rightly pointed out, it is easier to describe the public administration (administración pública) than to define the administrative function, given its heterogeneous nature. It is clear that the exercise of the materially jurisdictional function requires and necessitates an entire administrative infrastructure that enables it to be carried out in accordance with the constitutional mandate—that is, promptly and fully.
This is what has been termed the "public service (servicio público) of the administration of justice." Thus, the administrative support apparatus that enables judges and tribunals to issue their rulings constitutes said service, such that the concept refers to the administrative aspects of the jurisdictional function, such as the organization and operation of the courts, logistics—provisioning and supplies—the efficient and effective handling, management, or administration of judicial offices to avoid undue or unjustified delays in the processing of cases, the administrative function exercised by the administrative bodies of the Judicial Branch (e.g., administrative resolutions of the Corte Plena, of the Consejo Superior del Poder Judicial, of the Tribunal de la Inspección Judicial, of the Consejo de la Judicatura, and, in general, of the various administrative departments—Dirección Ejecutiva, Proveeduría, Personal, etc.) and auxiliary bodies attached thereto, such as the repressive police function exercised through the Organismo de Investigación Judicial, the exercise of public prosecution (acción pública) by the Ministerio Público, and the provision of free legal defense through the Defensa Pública.
Nonetheless, although this materially administrative function is carried out by the support or auxiliary apparatus of the jurisdictional function, it must be understood in a strictly exceptional sense; that is, only such administrative activity as is necessary and appropriate to assist in the exercise of the materially jurisdictional function is permissible, and no other. For the foregoing reasons, by application of the constitutional principle of jurisdictional reserve or exclusivity (reserva o exclusividad de jurisdicción), it follows that the Judicial Branch must devote and dedicate the majority of its resources to the exercise of a materially jurisdictional function.
One of the great historical achievements of the Costa Rican Constitutional Rule of Law (Estado Constitucional de Derecho) was the economic autonomy (autonomía económica) of the Judicial Branch, attained through a partial amendment to the Political Constitution of November 7, 1949, by means of Ley No. 2122 of May 22, 1957. This law added a second paragraph to the original text of Article 177 of the Political Constitution, which provided as follows:
"(…)
In the budget proposal, a sum of no less than six percent of the ordinary revenues (ingresos ordinarios) estimated for the fiscal year shall be allocated to the Judicial Branch. However, when said sum exceeds what is required to cover the fundamental budgeted needs of that Branch, the aforementioned department shall include the difference as a surplus, together with a national investment plan, so that the Legislative Assembly may determine what is appropriate (…)".
This partial constitutional amendment 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 submitted on September 6, 1956 by then-Justice Evelio Ramírez to the Corte Plena, the collegiate body that approved it in the session held that same day. In the justification for the constitutional amendment—which would subsequently become the explanatory memorandum (exposición de motivos) for the reform during the legislative process—Justice Evelio Ramírez emphasized the need to allocate to the Judicial Branch a minimum or "sum of no less than six percent of the ordinary revenues estimated for the fiscal year," in order to overcome the lamentable situation of that Branch of the Republic, which had received in the seven years preceding 1956 only an average percentage of 2.75% relative to the General Revenue Budget.
The express purpose of the Justice who championed the constitutional reform and of the Corte Plena in approving his proposal was to secure greater financial resources to diversify and strengthen the various jurisdictional divisions (sic) (órdenes jurisdiccionales), increase the number of courts and tribunals and the personnel needed to meet demand for the service, reform and improve procedures, provide adequate infrastructure and material resources to courts and tribunals, improve the salaries of those engaged in the delicate and difficult task of administering justice and their retirement or pension scheme, all in the pursuit of a swifter and more complete justice. In that regard, Justice Evelio Ramírez made considerations such as the following:
"(…) the Corte Suprema de Justicia, knowing better than anyone the true needs of the Judicial Branch, would draw up its own preliminary budget draft (anteproyecto de Presupuesto) taking into account the factors that, in its judgment, require economic adjustments based on honest, rational, and fair criteria. And it would not only attend to the proper installation of its many offices—which today present an almost dilapidated appearance throughout the country—but would also supply them with typewriters, adequate furniture, and other essential material means for working with the greatest possible efficiency. In addition, it would be possible to remunerate all judicial employees more equitably (…) The very Retirement and Pension Fund—whose stability is seriously threatened—could be reinforced from that global allocation (…) The average percentage that has accrued to the Judicial Branch in the last seven years has been 2.75 percent relative to the General Revenue Budget (…) Experience has shown that the indicated percentage is wholly insufficient for the proper functioning of the Judicial Branch.
To appreciate this, one need only look at the inadequate buildings that house almost all the courts of the Republic, the slowness with which the various judicial matters are processed due to the small number of tribunals and the limited staff of those currently in operation, the insufficient number of typewriters and other furniture that are urgently needed, the low pay of judicial employees, etc. etc. (…)".
For its part, the special legislative committee appointed to issue a report on the bill to reform Article 177 of the Constitution, in its first legislative session, in its report of October 9, 1956 (appearing at folios 20–21 of the legislative file (expediente legislativo)), found the following:
"This constitutional reform—through which the economic autonomy of the Judicial Branch will be definitively secured—will make it possible for the many problems currently confronting that Branch due to the limited financial resources allocated to it in the national budgets to find an adequate solution in the future. These problems have existed for a long time and grow worse day by day as a result of the growth and development of the population, which demands ever more services from the administration of justice. The judicial offices do not have sufficient staff to handle the many problems that arise daily, and in material terms, with very few exceptions, they are housed in wholly inadequate premises and lack sufficient furniture or equipment (…) The remuneration of judicial employees is, moreover, so meager that a judicial career offers no incentive or appeal whatsoever to those wishing to enter it, and this in many cases drives away individuals with vocation and abilities who could, under other conditions, serve as Alcaldes, Judges, or Justices." Consequently, the guiding idea that inspired the 1957 constitutional amendment was to strengthen the organization and functioning of the Judicial Branch, so that it could efficiently and effectively exercise its essential function of dispensing or administering justice.
Under this understanding, any provision by the ordinary legislature aimed at attaching to the organization of the Judicial Branch bodies that exercise materially administrative competencies alien to or not pertaining to the jurisdictional function is unconstitutional, insofar as it violates the financial autonomy and, consequently, the independence of the Judicial Branch, by diverting the use and application—even if only by a small percentage—of the minimum budgetary allocation guaranteed to it for other purposes. It can therefore be affirmed that the second paragraph of Article 177 of the Political Constitution, added by Ley No. 2122 of May 22, 1957, is a clear institutional guarantee (garantía institucional), since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees the effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and to obtain prompt and complete justice.
The claim that essential organizational administrative competencies (competencias administrativas esenciales de organización) connected to the jurisdictional function (función jurisdiccional) are not being stripped away is highly relative, since, as explained above, an organizational aspect of personnel administration within the Poder Judicial is being modified. In doing so, the history of the constitutional amendment is ignored—an amendment in which this was indeed cited as justification for passing the reform to Article 177. The majority asserts that the essential content of a legal institution is being preserved, yet in doing so the law removes the administration of pensions from the Consejo Superior del Poder Judicial and transfers it to a Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. It is true that administration remains within the Poder Judicial, but now in a deconcentrated body (órgano desconcentrado), which evidently touches an essential part of the governance of the Poder Judicial (Articles 152 and 156 of the Constitution).
A rift arises that affects the organization of the Poder Judicial—broadly speaking, its capacity to organize itself, to manage and administer the fund for the exercise of social security (seguridad social) rights of Poder Judicial personnel—which, it must be said, runs counter to the position of the Corte Plena, by reason of the omissive manner in which an institutional consultation was conducted and by disregarding its opinion, contrary to the principle of functional legality (legalidad funcional) of a branch of government. It should be recalled that the reform to Article 177 of the Constitution was associated with the vision of reinforcing judicial independence (independencia judicial), including that of its officials, within which the administration of the pension fund would be included. Indeed, the recognition of something so important, which was later only timidly incorporated into the 1949 Constitución Política, did not go so far as to include—explicitly—the non-reducibility (irreductibilidad) of the salaries of judicial officials, as in other jurisdictions; nevertheless, it has functioned in our country in a way that enables it to enjoy the levels of judicial independence that Costa Rica has comparatively enjoyed at the global level, which is clearly the fruit of the economic independence of the Poder Judicial. This has been due in part to the recognition of the public employment regime (régimen de empleo público) that was consolidated throughout the republican history of this country.
Ruling No. 1996-03575 of 11:18 a.m. on July 12, 1996, stated regarding:
"… the Public Employment Regime (Régimen del Empleo Público), it is possible to conclude that the competent state body in this matter is each branch of government, since it is these—Executive, Legislative, Judicial, and Tribunal Supremo de Elecciones—that are best positioned to determine their own needs and understand their particular conditions." By Ruling No. 1998-005795 of 4:12 p.m. on August 11, 1998, which established that:
"From the provisions of Article 154 of the Constitución Política—which reads—:
'The Poder Judicial is subject only to the Constitution and the law, and the decisions it issues in matters within its competence impose no other responsibilities than those expressly set forth in legislative precepts.' derives the principle of independence of the Poder Judicial, which encompasses both the body or institution as a whole and the judge in his or her handling of matters submitted for his or her judgment. With respect to this official, it must also be recognized that there is a double protection of his or her office, since the independence of the judge—as a guarantee for the parties involved in the matter sub judice—is both external and internal, in the sense that the judge is protected from influences and pressures—both external and internal—that may bear in one direction or another on the decision in a specific case submitted for his or her consideration, so that the judge rules with strict adherence to the applicable normative framework; in other words, the judge is protected so that neither the parties to the proceeding, third parties, superior judges, nor 'influential' members of the branches of government, including the Judicial branch itself, may influence his or her decision; accordingly, even less so could there be an obligation—imposed by a superior—to rule in a particular way in a specific case or to coerce the adjudicator in that direction.
The guarantee of independe[n]ce [sic] of judges is, more than a guarantee for these officials—which it effectively is—, a guarantee for private individuals (parties to the proceeding), in the sense that their cases will be decided with strict adherence to the Constitution and the laws." By Ruling No. 1998-005798 of 4:21 p.m. on August 11, 1998, this Court established that:
"The independence of the Poder Judicial is constitutionally guaranteed in Articles 9 and 154 [sic]. The American Convention on Human Rights, an instrument of international rank of direct application in our country, also addresses the subject. The American Convention on Human Rights establishes judicial independence as a human right, providing in Article 8.1 that:
'1.- Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal previously established by law, in the substantiation of any criminal accusation brought against him or her, or for the determination of his or her rights and obligations of a civil, labor, or any other character.
The independence of the Judicial Branch [sic] is projected outward. The Judicial Branch [sic] is independent vis-à-vis the other branches of the State, unlike the judge, whose independence must be analyzed in a more complex manner. But when a Poder Judicial is said to be independent, the same must be predicated of its judges, since they are the ones who must give effect to the function entrusted to it, and it is to this independence that I will refer next. The independence that truly matters—without diminishing the importance of that of the Judicial Branch [sic]—is that of the judge in relation to the specific case, since that is what functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Poder Judicial contributes to enabling the judges who compose it to also be independent, but it may well occur that the Body as a whole has its independence normatively guaranteed while its members are not independent, for multiple reasons." This is no small matter, given that the organization and administration of the judicial function should not be limited solely to the jurisdictional component, as the majority understands it; rather, it is complemented by other organizational functions that should be respected as belonging to a branch of government.
As stated above, the amendment to the Constitución Política contemplated not only jurisdictional aspects but also operational aspects of the Poder Judicial, and therefore would be encompassed by the original Constituent Assembly in Article 167, because from within the Corte Plena in 1956, and in the Asamblea Legislativa in 1957, it adopted—from that foundational era of the Segunda República—the obligation to respond to the needs of officials with respect to their salaries and pension regime, a cornerstone precept for Costa Rican democracy.
It is evident that the Fondo de Pensiones y Jubilaciones del Poder Judicial formed an essential part of the economic independence of the Poder Judicial of that era, and must continue to do so in ours, pursuant to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The derived Constituent Assembly, by embracing the Corte Plena's vision, took a decisive step toward accepting the management of pensions in a manner independent and autonomous from the other political branches, which in turn allowed such management and governance to be carried out within the legal and constitutional purposes of the administration of justice. Nor can it be asserted, as the majority states, that the recognition of the constitutional percentage of 6% was smooth and without any difficulty; on the contrary, the relationship between branches in this regard has been rocky, harsh, and abrupt, such that every budget appropriation has been obtained through great effort or timely negotiation by the representatives and authorities of the Poder Judicial.
Indeed, the Constituent Assembly foresaw such a possibility of negotiation and deliberation by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Constitución Política, with the 6% of ordinary revenues of the Republic's fiscal year, is an element that has served as an incentive for the legislature to use the orbit of the Poder Judicial as an aggregating factor for administrative institutions extraneous to the judicial function. Precisely, Ruling No. 2006-07965 of 4:58 p.m. on May 31, 2006, cited above, concludes with the declaration of unconstitutionality of provisions of the Código Notarial, for establishing a body of an administrative nature—the Dirección de Notariado—within the Poder Judicial, in violation of the constitutional principles of separation of functions, reservation or exclusivity of jurisdiction, independence and financial autonomy of the Poder Judicial, and the right to prompt and effective justice for the inhabitants of the Republic.
In continuity with Ruling No. 2017-09551 of 11:40 a.m. on June 21, 2017, it was also stated that:
"For all of these reasons, we must recognize that, with the objective of rationally organizing work with efficacy, efficiency, simplicity, and speed, every primary function must be accompanied by the other—non-primary—functions of the constitutional body, and must be aligned toward the primary function; it is thus that it must be recognized that both legislative and judicial functions require a supporting administrative structure for the achievement of their essential or primary function, such as the administrative function that helps channel all of their activity; which logically extends to human resources and the personnel of the branches of government; meanwhile, behind the fundamental function lies the administrative function concerning personnel, agents, and public servants, etc. It is evident that, in the Costa Rican context, it would be a serious contradiction to move against a long legislative tradition of entrusting these attributions to a single branch of government (which does not exist in other jurisdictions), while at the same time seeking to guarantee those horizontal checks within an independent Poder Judicial." Therefore, if matters related to pensions and retirement of the Poder Judicial were included as part of that economic independence of the Poder Judicial as a substantive matter since 1956, this constitutes, for the undersigned, an additional reason to seek the application of Article 167 of the Constitución Política, since the change of scheme involving a deconcentration of the administering body was brought about by a subsequent law. This opens a dangerous precedent whereby, in the future, transitory majorities in the Asamblea Legislativa may encroach upon other aspects of the management of Poder Judicial personnel.
Another reason is that a reinforced majority guarantees not only judicial independence from an institutional standpoint, but also for individual judges considered personally, insofar as their economic, social, and cultural rights are affected, as established through a social security and pension system (régimen de la seguridad social y previsional). It cannot be denied that the Judicial Branch forms part of a whole — the "State" — yet its strategic and key position within that organization must also be made felt, along with the public functions of its officials, which are highly specialized and firmly grounded in the law, as described earlier in this Tribunal's background section, and whose function is the final resort in the resolution of conflicts and as a peacemaker among them. This clearly entails a cost and sacrifice for its personnel, which must be compensated by the "State," and all the more so in a functional democracy such as Costa Rica's, which must assume not only the economic burden of sustaining the Judicial Branch, but also of protecting it.
The purpose of judicial independence is to guarantee judicial impartiality — a point shared with the majority of the Tribunal, though not with the clarity this minority would wish — since the problem of reforming Article 177 of the Political Constitution crystallized the deeply felt need to protect, in general terms, the institutional integrity and the administration — also — of all matters relating to Judicial Branch personnel, which should be jealously safeguarded, and from which the Judicial Branch's head cannot be excused from mounting legal opposition against any regressive effects that future legislation might produce. It is necessary to invoke the enduring rule regarding the importance of protecting the portion of remuneration and all matters related to the pension system (régimen de pensiones) of judges and their officials, as found in the most important legal systems in the world.
Accordingly, the undersigned justices consider that Ley N° 9544 of April 24, 2018 contains essential defects in the legislative procedure affecting it in its entirety — specifically, the failure to consult the Judicial Branch regarding the text approved by Parliament by an absolute rather than a qualified majority — which affects it in its entirety (Article 167 of the Political Constitution), inasmuch as it affects the Judicial Branch's organization, structure, functioning, and independence; and is, therefore, contrary to Constitutional Law. For the foregoing reasons, it is unnecessary — in the view of the undersigned adjudicators — to proceed to analyze the remaining substantive arguments raised by the petitioners against the law's substantive content, except in those instances where it was necessary to take a position in order to achieve a fully concurring vote (Article 60.2 of the Code of Civil Procedure), which is reflected in the majority opinion of this Chamber.
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 Additional grounds of Justice HERNANDEZ GUTIERREZ On the special, solidarity-based, and redistributive contribution (contribución especial, solidaria y redistributiva) charged to retirees and pensioners
I.Preliminary clarification. First, I must note once again that from my perspective, these consolidated actions should be upheld on purely procedural grounds — that is, on account of essential defects in the procedure for forming the law — as set out in my joint vote with Justice Salazar Alvarado. This circumstance would make it unnecessary for me to address the other issues raised by the petitioners. However, given the need to form a majority and to cast a concurring vote, I have been compelled to contribute my opinion and vote in resolving certain specific issues, among them the issue of the special, solidarity-based, and redistributive contribution that falls "additionally" on retirees and pensioners of the Judicial Branch and of the Administration of Justice. In this regard, I consider it appropriate to set forth the following complementary qualifications and clarifications.
II.Second, it is worth recalling that the jurisdiction conferred by the Constitution (CP) in Article 10 on this Chamber by way of an action of unconstitutionality (acción de inconstitucionalidad) is exercised through a comparison of the text of the challenged rule or act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles (Article 3, read in conjunction with Article 2, subparagraph b], of the Law on Constitutional Jurisdiction), and is decided objectively and in complete abstraction from the case that prompted the intervention (Cf. Sala Constitucional, sentencia # 1147-90 de 16.00 horas de 21 de septiembre de 1990, considerando II, párrafo 2).
III.Third, it should be noted that in my aforementioned joint separate opinion, I establish my position to the effect that there does exist a fundamental right to retirement or pension (jubilación o pensión) in the judiciary and in the Costa Rican Administration of Justice, understood in the same terms as those set forth by the Chamber in the foundational ruling #1147-90:
"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 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, pursuant to which: … That conclusion is confirmed by a series of international human rights principles and norms, which carry not only the rank superior to ordinary law conferred upon them by Article 7 of the Constitution, but also a direct constitutional protection that practically equates them to those expressly enshrined in the Constitution itself, pursuant to Article 48 thereof (as amended by Ley No. 7128 of August 18, 1989); among those rights, specifically, those recognized in Articles 25, 28, 29, and 30 — as corrected, those invoked in the action — of the Social Security Convention, No. 102 of the ILO, which provide: […] Other international instruments also recognize, either generally or specifically, the right to retirement — by age or old age — (e.g., Art. 16 American Declaration of the Rights and Duties of Man; Arts. 22 and 25 Universal Declaration of Human Rights; Art. 31 Inter-American Charter of Social Guarantees; Art. 5 Convention on Equality of Treatment regarding 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.The distinctive characteristics of jurisdictional work that derive from Articles 9, 153, and 154 CP, Article 8 of the American Convention on Human Rights [CADH], and Article 5 of the Organic Law of the Judicial Branch [LOPJ], reflect an essential, foundational function within the context of the Constitutional and Social State of Law, distinct from the other functions of the State, yet coexisting with them in a relationship of mutual collaboration and cooperation. From judicial independence in general, and the economic independence (independencia económica) of the Judicial Branch in particular, emerges the power of the Judicial Branch to design and promote a retirement system (régimen de retiro) in keeping with that reality — one that not only guarantees permanence in office, integrity, objectivity, neutrality, and impartiality for the active worker, servant, or official, but also, and most especially, protects them in old age, or protects their closest loved ones in situations of disadvantage or vulnerability, against certain social contingencies.
V.The existence and constitutional validity of a special regime (régimen propio) has been recognized by this Chamber in its jurisprudence, as evidenced, for example, by that same Sentencia #1147-90, considerandos VI and VII. In its recent advisory opinion #2018-005758, the Chamber addressed the transcendence and importance of ensuring that persons working in the Judiciary and its auxiliary bodies have access to a Retirement and Pension System (régimen de Jubilaciones y Pensiones), in the following terms:
"VI.- … What is clear is that the creation of the Judicial Branch's pension system 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 judicial independence. Together with the judicial career, it provided stability to judges and other servants and officials both while active and inactive, which made the judicial career attractive to many legal scholars and thereby fostered the stability and specialization of many officials across the various branches of the judicial apparatus; however, it clearly was not created as an intrinsic element of judicial independence (the central aspect of the constitutional protection under Article 167 when it speaks of 'structure and functioning'), which is constitutionally grounded in other factors, such as the existence of a career system that guarantees objectivity in the selection of judges based on criteria of competence and stability, and the economic and political independence of the body, among others; the legislature could perfectly well have opted for a single regime for all public employees or workers in general, without it being possible to claim that this would diminish the body's independence. …
What is part of judicial independence is that judges have a dignified economic sufficiency, both while active and inactive, regardless of whether the pension system is specific to judges or not. In fact, not all countries have particular regimes for judges, but the more consolidated democracies do take care to protect the judiciary as a key piece of the stability of the Rule of Law. Countries that have bet on the force of law rather than force of arms for their stability depend on the quality of their judges for the quality of their democracy, since judges are the strategic guardians of the rule of law. In the case of our country, as the Estado de la Nación has rightly noted, the Judicial Branch has the particular characteristic of being a conglomerate of highly relevant institutions for the rule of law (the Fiscalía, the Judicial Police, the Public Defender, and the Judiciary itself), and it was its strength that in large part enabled the development and consolidation of democracy in our country during the twentieth century.
The first Estado de la Justicia report notes as follows: […] In that sense, it was a wise decision by the legislature to endow the Costa Rican administration of justice with guarantees and incentives, because only in this way could the rule of law that emerged from the Second Republic be realized — a rule of law that would depend for its success on a robust system of legality and no longer — as stated — on force of arms, the path that the majority of countries in the world, especially Latin American ones, had chosen. Nevertheless — from the perspective of the Chamber majority — it cannot be asserted that the Judicial Branch's pension system is part of the essential content of judicial independence or that it affects the Branch's structure and functioning, although it has, as noted, historically functioned as a necessary complement thereto, and for the good of Costa Rican democracy, care must be taken to ensure it is as stable and dignified as possible. …" (italics not in the original).
VI.The majority opinion certainly reached different conclusions. However, from my perspective, the doctrine, norms, values, and principles underlying that opinion favor this distinctiveness as part of the autonomy of the judiciary (jurisdicción), of the Poder Judicial, and it is the position that aligns with the precedents and the classical and foundational doctrine of the Sala Constitucional (Cf. Judgment # 846-92 of 13:30 hours of March 27, 1992, considerando B, and # 3063-95 of 15:30 hours of June 13, 1995). The International Conventions and Instruments on Human Rights and their progressive interpretation cited in that joint vote are a clear demonstration of the need to enjoy and have a regime of their own, one that serves as a guarantee of stability for those who choose the sacred ministry of serving the Judiciary (Judicatura), so that they may devote and direct their calm strength and clarity of spirit to fulfilling the duties inherent in 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 arising from the exercise of that office.
VII.In the area of Economic, Social and Cultural Rights, the State's commitment is the adoption of measures "to achieve progressively the full effectiveness of the rights that derive from economic, social, and educational, scientific and cultural norms contained in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent of available resources, through legislative means or other appropriate means." (article 26 CADH; italics not in the original); while numeral 2, concerning the duty to adopt provisions of Domestic Law (Derecho Interno), establishes: "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 or freedoms." As part of that progression, development, advancement, and non-regression, the Inter-American Convention on Protecting the Human Rights of Older Persons was enacted, which Costa Rica approved pursuant to Ley # 9394 of September 8, 2016, and ratified by Decreto Ejecutivo #39973 of October 12, 2016; its normative framework recognizes the right of persons to age actively, with dignity, security, and protection, and imposes on the State the obligation to guarantee their enjoyment and exercise of that right.
If the country fulfilled that duty to create the regime, and if this regime has existed since 1937, what the State has today is, on one hand, a negative obligation of non-regression (obligación negativa de no regresión), and on the other, a positive duty (tarea positiva) to guarantee the enjoyment and exercise of the right itself.
VIII.Income or funding sources of the Fund. Pursuant to the LOJP, the Pension and Retirement Fund of the Poder Judicial [FPJ or the Fund] has the following income: i) an employee contribution (aporte obrero) of 13% of the salaries earned by judicial employees; ii) 13% of retirement pensions and pensions (jubilaciones y pensiones); iii) an employer contribution (aporte patronal) of 14.36% on the wages and salaries of employees; and iv) a State contribution on wages or salaries equal to that established for the Invalidity, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) of the Caja Costarricense de Seguro Social (article 236). In addition to that ordinary or common contribution, levied on retirees and pensioners (jubilados y pensionados), by a subsequent law, # 9697 of December 5, 2019, entitled "Ley para rediseñar y redistribuir los recursos de la contribución especial solidaria," a special, solidarity and redistributive contribution (contribución especial, solidaria y redistributiva) is established [or was established] and imposed 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 shall the sum of that contribution and all deductions applied by law to all pensioners and retirees of the Fund represent more than 55% of the total gross pension amount; and it is specified that the resources obtained from that contribution shall be deposited 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" tax burdens, and to give sustainability to the pension system.
IX.As regards the issue of the funding sources of social security (seguridad social) regimes and those responsible for them, in general, it should be noted that this matter has generated disputes and controversies since its origins. For some sectors of legal scholarship, it should be borne solely by its beneficiaries; others argue that, insofar as social security benefits are a prolongation of wages over time, as part of the wage itself, contributions must be paid by the employer. To resolve the dilemma and create the system, some legal systems reached an agreement that the cost should be shared between workers and employers. Thus arose the system of contribution levies (cotizaciones) as a mechanism to finance social security. Subsequently it was given a mandatory, compulsory character, charged to the national budget, and was classified as a special, specific tax exaction (exacción tributaria) or parafiscal levy (tasa parafiscal), as opposed to the general tax, which is intended to satisfy any human need whatever its cause or circumstance. The Costa Rican social security system follows this model.
X.In our legal system, when social insurance was established for the benefit of manual and intellectual workers, it was provided that they would be governed by the "system of compulsory 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 levy (cotización), is a legal obligation, ope lege, that falls on specific, designated subjects. There is no doubt that its amount or the sources from which it derives must be reviewed with some frequency, either to improve the regime with respect to the benefits of its creditors or beneficiaries, or to maintain its existence and financial soundness. And nothing precludes the legislature, within that legislative freedom of configuration (libertad de configuración), from creating new funding sources aimed at guaranteeing sustainability (sostenibilidad), which may fall upon other subjects or contributors.
However, these, insofar as they differ from those provided for by the original constituent assembly, are subject to the block of legality (bloque de juridicidad) for their constitutional validity and legitimacy, as established by the Sala Constitucional in its jurisprudential doctrine. Within this latter category falls the special solidarity and redistributive contribution, which is a special, parafiscal tax (tributo especial, parafiscal), earmarked for a specific purpose; it is not a general tax, which are those directed at satisfying the general needs of the nation, of the country (article 121, paragraph 13 CP).
XI.In this specific case, by the express definition of the aforementioned Ley #9697, the contribution is presented as a technique devised by the legislature 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 Ley # 9544, assuming its constitutional validity per se, as established by the Sala Constitucional in its precedents (judgment # 846-92 of 13:30 hours of March 27, 1992), is incompatible with the constitutional principles of reasonableness (razonabilidad), proportionality (proporcionalidad), and prohibition of arbitrariness (interdicción de la arbitrariedad), insofar as its imposition is not the result of prior specific 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" as referred to in the CP (articles 70 and 121, paragraph 13), where legislative discretion and freedom of initiative reign. These are specific, targeted legislative measures that concern a defined sector of the population, aimed at guaranteeing the solvency and sustainability of the Fund; as such, they must be grounded in a technical, actuarial, and economic study that identifies those actual needs and the possible measures to be implemented and those responsible for them. The catalog of those measures must pass the reasonableness test (test de razonabilidad), the suitability test (idoneidad), and constitutional conformity review (adecuación constitucional) for their substantive validity and conformity with the Constitution, as established by this Sala Constitucional in its extensive jurisprudence. In this regard, the classic and foundational judgment # 1739-92 of 11:45 hours of July 1, 1992, stated:
"I- … c) But the Anglo-American jurisprudential tradition took an even further step when the concept of due process was extended to what that tradition knows 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 affirm its jurisdiction over the federated States, in keeping with the Fourteenth Amendment to the Federal Constitution, but which in our context, especially in the absence of that necessity, would simply amount to the principle of reasonableness of laws and other norms or public acts, or even private ones, as a requirement of their own constitutional validity, in the sense that they must conform not only to the specific norms or precepts of the Constitution, but also to the sense of justice contained therein, which in turn implies compliance with fundamental requirements of equity, proportionality, and reasonableness, understood as suitability to achieve the proposed ends, the underlying principles, and the presupposed values of Constitutional Law.
Hence, laws and, in general, norms and acts of authority require for their validity not only to have been enacted by competent bodies following due procedures, but also to pass substantive review for their concordance with the norms, principles, and supreme values of the Constitution (formal and material), such as order, peace, security, justice, freedom, etc., which are configured as standards of reasonableness. That is, a public or private norm or act is valid only when, in addition to its formal conformity with the Constitution, it is reasonably grounded and justified in accordance with constitutional ideology. In this way, the aim is not only to ensure that the law is not irrational, arbitrary, or capricious, but also that the means selected bear a real and substantial relationship to their object. A distinction is then drawn 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 presupposed by it; and finally, reasonableness of the effects on personal rights, in the sense of not imposing on those rights any limitations or burdens other than those reasonably derived from the nature and regime of the rights themselves, nor greater than those indispensable for them to function reasonably in the life of society. …".
It is precisely that technical study that must determine the scope of the measures, their necessity, timeliness, appropriateness, suitability, extent, amount, and the obligated parties (sujetos pasivos) called upon to bear them. Of course, the political discretion enjoyed by the legislature is, in this case, limited by considerations of justice, logic, timeliness, and expediency, as well as by fundamental rights and human dignity (cf. artículos 15 a 19 de la Ley General de Administración Público -LGAP). And that measure, insofar as it affects the very beneficiaries of the Fund—a specific group of persons—must weigh its implications and assess and balance the impact that its implementation may have 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 benefit from the right itself.
XIII.If, due to the complexity of parliamentary dynamics, it were not possible to gather that technical study in a timely manner, or if it were insufficient, there are regulatory precedents that demonstrate the existence of other techniques that are less invasive and less harmful to the fundamental rights of persons; the technique used in the area of social security consists of creating a kind of band system—of limits—within which (from a floor up to a ceiling) the body or entity responsible for implementing and administering the Fund may set the specific measures and caps, following the specific actuarial, financial, or economic studies that determine them.
XIV.It has likewise been said that there was urgency and haste in adopting the financial measures under challenge, in order to prevent the Fund from becoming insolvent within the near term, and that the aim was to guarantee its soundness. In this regard, it must be borne in mind that satisfying those ends is both legitimate and responsible, as well as commendable, but it is not exempt from ex post jurisdictional review to determine its legitimacy. Urgency produces an empowerment of public power, an increase in the authority's powers, 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 entitle them to seek review by the courts.
XV.It must be recalled that, for elementary reasons of legal certainty (seguridad jurídica) and legitimate expectations (confianza legítima), the guarantees of artículo 34 CP are directed in the first instance to the legislature, to the legislative process. There is no doubt that those who join the scheme, the Fund, and who contribute periodically throughout their active working lives by paying a specified contribution in exchange for a specified or determinable benefit to be enjoyed once the right has been acquired, have the right to have the amount of that benefit respected on terms equal or identical to the benefit promised. The trust generated during the period of formation or consolidation of the right cannot be altered or disregarded by implementing measures whose effect or result is to hollow out the essential content of the fundamental right involved.
XVI.In this case the contribution is presented and offered as a new source of financing. However, the Law establishing it states that the aim is to create a more egalitarian, more equitable system within the scheme. That is to say, it is an instrument designed to level differences; the aim is to eliminate inequalities in benefits and in tax burdens or contributions. This is the true object and purpose animating the exercise of that reforming power of the legislature; its intrinsic purpose is to reduce the highest benefits, to lower their amount, in pursuit of that equalization. But that mechanism does not necessarily favor the less advantaged—those who receive the least—since it does not increase the amount of the promised benefits. What is obvious and evident is that it does produce the opposite effect. As is well known, equality operates among equals; never among unequals. If, in order to achieve that claimed equality or leveling, an additional contribution obligation is introduced—"in addition to," as the law qualifies it (artículo 236 bis)—it is necessarily incumbent 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 being addressed, and the enjoyment of ongoing benefits.
Otherwise, one falls into legislative arbitrariness, into confiscatory action (confiscatoriedad), by setting a cap and depriving the holder of the enjoyment of a substantial portion of the benefit without objective justification; if this justification does not exist or is absent, the measure becomes a materially expropriatory, disproportionate operation by reason of its effects and impact on the finances of the retired or pensioned person who contributed in due time in proportion to their higher income. The way to correct inequalities of origin, to the extent possible, cannot be at the cost of—or through the excessive sacrifice and diminishment of—the fundamental rights of some of the holders. Those who today enjoy a benefit under certain conditions acquired it under a scheme that existed at a particular historical moment; their role has been limited to fulfilling the pre-established conditions or requirements.
Therefore, the changes and improvements sought to be introduced into the scheme, for the benefit of all, must be respectful of those rights, on an elementary principle of legal certainty, whose primary addressee and the one called upon to ensure its effectiveness and observance is precisely the legislature. From this fundamental principle derives another of equal nature and hierarchy, namely 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 scheme, to which one seems to aspire, which presupposes equality of all in every respect, should inspire the creation of a new model aimed at setting the conditions for the enjoyment of future retirees or pensioners. But correction of the current scheme must be approached and agreed upon with respect for the rights and guarantees of its holders or beneficiaries. The aspiration to achieve the effectiveness of rights, as stated in the Charter of the United Nations in artículo 55, inciso c), approved by Costa Rica pursuant to Ley # 142 de 6 de agosto de 1945, in relation to artículo 2 de la CADH, the duty of solidarity, good faith, and human dignity are principles that limit the exercise of power, in protection of the legitimate expectations of those who acquired and consolidated their rights under a specific scheme.
XVIII.This Court, from its earliest decisions, established the relationship or similarity existing between salary and pension, at least as genus to species. In sentencia #1147-90 the following was stated:
"X.- Furthermore, the Court observes that the challenged provision of artículo 240 de la Ley Orgánica del Poder Judicial is the only one among the various retirement schemes in force in Costa Rica that imposes the forfeiture of the right on grounds of the beneficiary's vices, moral failings, or criminal liability; which thereby also renders it unconstitutional for violation of the principle and right to equality without discrimination, recognized in general by artículo 33, and in particular by artículos 57 and 68 de la Constitución, the latter two with respect to the matters of salary and conditions of work, of which retirement is either a species, or which justifies an analogical application of their rules and mandates; the principle and right to equality without discrimination, as stated, 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 otherwise (see citations in Considerando V supra)." Later, in sentencia # 10513-2011 of 15:01 hours on August 10, 2011, the Court expressly established that retirement or pension substitutes salary.
This implies, on the one hand, that the guarantees and protective rules enjoyed by the latter permeate the former, among them irreducibility (irreductibilidad), which is explicitly enshrined in certain foreign constitutional texts that even served as reference and inspiration to the Constituent Assembly of 1949, in connection with judicial independence. Therefore, between one form of income and the other, there must be a reasonable equivalence that is respectful of persons' rights and of their inherent dignity. The pension or retirement benefit must also serve to allow those who have dedicated their lives to judicial service, to the judiciary, to enjoy during the retirement period—during their old age—an income that allows them to live with dignity, to age in adequate economic conditions proportionally identical to those they had as active workers or civil servants. Social security in general, embedded in the Chapter on Social Rights and Guarantees, constitutes one of the norms that best illustrates the transformation of the liberal Rule-of-Law State into a Social or Welfare State, by placing the person—whether in their individual capacity or as a group [family]—at the base, at the center of the activities of the public authorities (cf. sentencia #846-92).
But that change, that transition, does not signify a rupture with the former, but rather an effort to perfect it, as today's scholars of Constitutional Law point out. The need to protect human dignity, before, during, and after one's existence, requires 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 event, the Court considers that the right to retirement, in general or in the special schemes referred to, cannot ordinarily be made conditional on the conduct of its holder, whether such conduct predates or postdates its consolidation as an acquired right. In reality, it is not denied that the right to retirement, like any other right, is subject to conditions and limitations, but those conditions and limitations only to the extent that they are provided for by the rules that recognize and guarantee those rights and are, moreover, reasonably necessary for the exercise of the right itself, in accordance with its nature and purpose. This is nothing other than an expression of a well-known principle of Human Rights Law, which may be called the principle of proportionality, and which is embodied, in general, as a condition sine qua non of the restrictions and limitations on such rights exceptionally authorized by the very texts that enshrine them; a principle that is enumerated, for example, in artículos 29.2 y 30 de la Declaración Universal de Derechos Humanos, 29 y 30 de la Convención Americana sobre Derechos Humanos, 5o del Pacto Internacional de Derechos Civiles y Políticos, and 4 y 5 del Pacto Internacional de Derechos Económicos, Sociales y Culturales.
Included in those cases of reasonableness and proportionality would obviously be the conditions established in artículos 237 y 239 de la propia Ley Orgánica del Poder Judicial, to which the challenged artículo 240 expressly refers; and they would be so included, even in the absence of express text, for example, the suspension of retirement when the beneficiary rejoins active paid service and for as long as they remain in such service, or the loss of successors' rights (causahabientes) upon events such as the majority of the children or the remarriage of the surviving spouse (cónyuge supérstite)." (Sentencia # 1147-90).
However, from my perspective, any reductions or limitations must be agreed upon on the basis of technical studies, as required by the fundamental constitutional principles of reasonableness and proportionality.
JOSE PAULINO HERNANDEZ G.
Res. n.°2021-011957 DISSENTING VOTES AND NOTES OF JUSTICE GARRO VARGAS Index
III.Independent reasoning on the unconstitutionality of the special solidarity and redistributive contribution insofar as it exceeds 50% of the gross pension or retirement amount
IV.Separate reasoning on the claims relating to the failure to take into account the differentiation in retirement age between women and men
A.- On the composition of the Court B.- On the alleged connection C.- On the 18-month period set out in Transitorio VI D.- On the regulatory framework (plexo normativo)
THE CONSTITUTIONALITY OF art. 234 BIS OF THE RAL In the sub lite, I agreed with the majority of this Court regarding the dismissal of the unconstitutionality action with respect to the alleged procedural defects (vicios) in the legislative procedure.
Nevertheless, I have found it necessary to set out a note in which I outline my reasoning regarding the alleged defects and, specifically, regarding the application of a special procedure regulated through what is currently contemplated in art. 234 bis of the Reglamento de la Asamblea Legislativa (RAL) (originally, the regulation of this special procedure was contained in art. 208 bis, including at the time Law No. 9544 of April 24, 2018 — Reform of the Ley Orgánica del Poder Judicial (LOPJ) — was approved; however, in 2019 an amendment to the RAL was approved that renumbered the provision in question).
In the specific case, the first matter challenged was the constitutionality of art. 234 bis of the RAL. That provision reads as follows:
"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 for processing amendments to its Rules and bills whose approval requires an absolute majority, excluding 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." With regard to the constitutionality of that procedure, this Court has numerous precedents upholding its constitutionality (see Considerando IX of this judgment). This is grounded in recognition of the Legislative Assembly's self-determination to regulate its own interna corporis, as expressly contemplated in art. 121 inciso 22 of the Constitución Política, which provides verbatim that it belongs exclusively to the Legislative Assembly itself to "adopt its own Rules for its internal governance.
Once adopted, these may not be amended except by a vote of no less than two-thirds of the total membership." Accordingly, consistent with that constitutional provision, the Legislative Assembly is autonomous in regulating its special legislative procedures, provided the procedure is approved by a vote of no less than two-thirds of its total membership and, furthermore, the special procedure respects the essential values and principles that must be observed in all parliamentary procedures, such as the democratic principle — the ultimate foundation of the RAL itself and the special procedures authorized under it —, political pluralism, the protection of minorities, representativeness, the statutory rights of legislators, and the guarantees of participation, publicity, and transparency.
It is appropriate, for these purposes, to reiterate what this Court has stated regarding the use of this mechanism to approve special procedures for certain bills:
"This Constitutional Court understands that the bill adding art. 208 bis to the Rules of the Legislative Assembly is consistent with Constitutional Law, provided it is stipulated or interpreted that the procedural motion set out therein must be approved by a vote of no less than two-thirds of the total membership of that body, since establishing or providing for special procedures for processing amendments to the Rules and certain bills constitutes a reform or modification of the Rules, that is, of the ordinarily established procedures, so that in order to comply with what is set forth in art. 121, inciso 22), of the Constitución Política and, above all, to be consistent with the democratic principle and the principle of minority participation in the making of a fundamental or far-reaching decision, such a qualified or heightened majority must be required — meaning a legislative consensus in which different political-party or ideological orientations concur, in respect thereof.
To this must be added that observance of the requirements established in interpretive agreement No. 4084 of June 10, 1999 — as this is an exercise of the amending power — guarantees such principles, as this Court explained in Voto No. 8408 of 15:24 hrs. of November 3, 1999, partially quoted in the third considerando of this judgment. B) Observance of the principle of legal certainty (seguridad jurídica): In order to bring the bill into conformity with the constitutional principle of legal certainty and to avoid any element of surprise, this Court takes the view that it must be stipulated or understood that the motion amending the Rules, by establishing a special procedure, must indicate with sufficient explicitness, clarity, and precision the various phases or stages in the conduct of that special course of proceedings, so that, since a vote of two-thirds of the total membership of the Legislative Assembly is required for its determination, the democratic principle and the right to free political participation by minorities are also respected." (Advisory opinion 398-2005, regarding the bill adding art. 208 bis to the RAL. See also judgments numbers 2007-2901, 2007-9699, 2008-07687.)
Thus, in this Court's precedents, it has been made clear that this option is legitimate under the condition that the motion in question to authorize a special procedure under art. 234 bis of the RAL be approved by a vote of no less than two-thirds of the total membership of that body and that, furthermore, the principle of legal certainty be respected; such that, when a special procedure is adopted, the motion must be explicit, clear, and precise regarding the various phases or stages in the conduct of this special course of proceedings. That course, though singular by virtue of the shortening of certain time periods and the introduction of certain limits or guidelines in the processing, must necessarily be consistent with respect for the constitutional principles mentioned above.
Now, in the specific case, the use of the special procedure of art. 234 bis of the RAL was challenged on the basis of the content of the bill under examination — a point that was rejected by the majority of this Court on the grounds that the content of the reform does not affect judicial independence — and not on the basis of the approved procedure as such, which in any event was examined in advisory opinion No. 2018-5758 — in which I did not participate — with no defect found on that point. On that occasion it was affirmed that the special procedure approved 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 was approved is also challenged. On this point I likewise agree with what the majority resolved in Considerando XII of this vote, rejecting the existence of any defect in the parliamentary procedure.
Additionally, the petitioners (accionantes) alleged the unconstitutionality of the parliamentary process on the grounds of the late publication of the substitute text approved on first reading (primer debate). Regarding this grievance, it is appropriate to note two aspects.
First, the procedure approved by the motion under art. 234 bis did not provide, in the specific case, for successive publications following the committee's issuance of its report on the bill, 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 take place prior to its vote on first reading. Accordingly, no violation of the special procedure approved for this particular bill is discernible. It should be recalled that the special procedure motion ordered the following:
"If, during the committee stage of the proceedings, a substitute text motion (moción de texto sustitutivo) were to be 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 Diario Oficial La Gaceta." (Emphasis not in the original.)
Consistent with the foregoing, it must be stated that the obligation to carry out new publications of the bill, upon the introduction of substitute texts or substantial changes to its content, was provided for during the stage handled by the Special Reporting Committee (Comisión Especial Dictaminadora). Therefore, the special procedure in itself did not contemplate this obligation for the Plenary stage. In any event, that omission was not challenged by the petitioners. Second, as reflected in the majority vote, from the analysis carried out of the submissions filed in the corresponding unconstitutionality actions, it was not possible to determine what those supposed substantial changes to the bill were that, in the petitioners' view, warranted a new publication on the grounds that it was, as they claimed, a true substitute text.
Given the nature of this constitutional review process, the burden of argumentation lies with the petitioners, so that if there is no identification of what the supposed substantial changes to the bill were, this Court would be wrong to substitute itself for what the petitioners are required to demonstrate in order to establish the unconstitutionality of a specific law.
For the foregoing reasons, I agree with the majority of this Court regarding the dismissal of these aspects of the unconstitutionality action. However, I have found it necessary to note that every parliamentary procedure approved under art. 234 bis must be respectful of the constitutional principles enumerated here, for 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 specific character — it must nonetheless respect and not neutralize the cardinal principles of parliamentary procedure identified above.
In the constitutional challenge (acción de inconstitucionalidad) filed under case file n.°18-14168-007-CO, it was alleged that the Special Committee designated to review the bill had approved a new substitute text (texto sustitutivo) prior to issuing the corresponding committee report (dictamen)—a text that had not been analyzed or extensively debated during the session of July 27, 2017. In that same session, as noted above, the committee proceeded to issue a report on the bill. The petitioners claim that, under the motion approved to govern the processing of that case file pursuant to the procedure authorized by the then art. 208 bis del RAL, it was envisioned that upon approval of a substitute text, the processing of the bill should be suspended. The petitioners further argued that, consequently, the extraordinary session of the Special Committee was tainted by nullity, since the bill was technically and legally in suspension until the text was published in the Diario Oficial La Gaceta.
As I noted above, the text of the motion governing the legislative procedure applicable to this specific bill provided, on this particular point, as follows:
"h- If during the committee's review of the case file a motion for a substitute text is approved, or when the committee agrees upon changes that substantially modify the bill, the Chair of the Committee shall request that the Directorio Legislativo agree to its publication in the Diario Oficial La Gaceta in order to safeguard the Constitutional Principle of Publicity, and consideration of the bill shall be suspended; proceeding (sic) likewise to carry out the corresponding consultations. If, after eight business days have elapsed, no response is received to the mandatory consultations referred to in this paragraph h), it shall be understood that the consulted body has no objection to the bill." (Emphasis not in the original.)
However, upon careful review of the legislative history (iter parlamentario), it was established that on July 27, 2017, the members of the Special Committee presented and approved a new text, which was subsequently the subject of a committee report approved by the affirmative votes of eight legislators and one vote against. Thereafter, motions were approved to publish the text and to conduct institutional consultations with the Corte Suprema de Justicia, the Procuraduría General de la República, the Ministerio de Hacienda, the Banco Central, and other institutions, as well as with the professional associations (gremios) of the Poder Judicial. It was not until September 4, 2017, that debate on the bill began in the Plenario, at which point the possibility of submitting substantive motions (mociones de fondo) was opened.
The petitioners' grievance focuses precisely on the fact that at the July 27, 2017 session, upon approval of the substitute-text motion, the proper course of action would have been to suspend proceedings in order to publish the text and conduct consultations, and only thereafter issue the corresponding committee report.
Nevertheless, after reviewing the proceedings in question, I find that this did not constitute an invalidating defect (vicio invalidante) in the parliamentary procedure. It is not that the defect is inconsequential, as the majority opinion holds, but rather that it did not result in an actual injury to the democratic principle or to the guarantees of participation and transparency that the procedure approved in this specific case was intended to uphold. Considerando XV of the judgment explains the legislative history with respect to the approval of a fourth substitute text, which was based on the technical criteria set out in the report of the IICE (Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica). The approval of that substitute text, introduced in committee at the July 27, 2017 session, required, under the procedural rules adopted pursuant to art. 208 bis del RAL, that the committee itself agree to publish the text in the Diario Oficial La Gaceta, suspend consideration of the bill, and carry out the relevant consultations.
This was not strictly observed in the case at hand, since, as established, the new substitute text was approved and the committee immediately proceeded to issue a report on the bill in that same session. The reason for this was the expiration of the deadline granted to the committee for issuing the corresponding report. Nevertheless, the failure to suspend the session on that occasion did not amount to an essential defect in the parliamentary procedure. This conclusion is supported by the finding that the bill and the respective committee reports were indeed submitted for publication in the Diario Oficial La Gaceta, the corresponding consultations were in fact conducted, and consideration of the bill under review was de facto suspended. It should be noted that substantive debate did not begin until September 4, 2017—that is, two months later—at which point legislators were able to submit whatever substantive motions they deemed appropriate and continue with the parliamentary process.
Therefore, based on the factual framework set forth above and on the finding that the purposes envisioned in the procedure were fulfilled—namely, allowing a waiting period to publicize the text, conducting the corresponding consultations, and providing a window for analysis to incorporate any motions that legislators deemed appropriate—it cannot be concluded that an invalidating defect in the parliamentary process occurred here. It must be noted that the suspension provided for in the special-procedure motion is not an end in itself, but rather served a higher purpose: to guarantee the democratic principle itself and adequate publicity of the parliamentary procedure—both of which, as verified, were achieved.
Consequently, based on the foregoing considerations, I find that in the sub examine no essential defect in the legislative procedure was established.
III.SEPARATE GROUNDS REGARDING THE UNCONSTITUTIONALITY OF THE SPECIAL SOLIDARITY AND REDISTRIBUTIVE CONTRIBUTION (CONTRIBUCIÓN ESPECIAL SOLIDARIA Y REDISTRIBUTIVA) INSOFAR AS IT EXCEEDS 50% OF THE GROSS AMOUNT (MONTO BRUTO) OF THE PENSION OR RETIREMENT BENEFIT (PENSIÓN O JUBILACIÓN)
The undersigned Justice, on her own separate grounds, upholds this aspect of the constitutional challenge, ordering the partial annulment of the provisions set forth in arts. 236 and 236 bis of the LOPJ; she likewise notes that the unconstitutionality she declares affects the excess of the special solidarity contribution beyond that 5% and not the remaining deductions applied by law to all pensioners and retirees of the Fondo de Jubilaciones y Pensiones del Poder Judicial.
First, it should be noted that in sentencia n.°2020-19274, which is invoked as the pivot of the decision (Considerando XLI of this judgment), I dissented and set forth the following considerations:
"SEPARATE CONSIDERATIONS On this matter, the majority of this Court held that—as part of the protection of the right to social security and the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad)—for the levies established in Laws Nos. 9383 and 9380 to be compatible with Constitutional Law it is necessary that they comply with art. 71, paragraph 2, of the ILO Convention No. 102, as well as the 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 endorsed by the majority, such as the inescapable protection of the essential core of the invoked fundamental rights—namely, social security and the right to retirement. I also share the need to observe the international obligations undertaken through 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 disagree with the conclusions reached by that majority, for the reasons I will explain below.
First, one cannot overlook the fact that the position expressed by the acting Minister (Ministro a.i.) of Finance is reasonable—namely, that the purpose of the challenged legislation is to provide the State with greater revenues to meet its expenditure obligations for payments under special pension regimes and thereby contribute to their financial sustainability in the short, medium, and long term, and also to ensure that contributions on pension and salary amounts are made in a gradual and solidarity-based manner, so that those receiving higher incomes contribute proportionally more and those receiving less contribute at a lower percentage. Furthermore, I accept what the PGR reported when it stated that the special solidarity contribution created by Ley n.°9383 is neither excessive nor unreasonable, especially considering that it applies only after the economic benefit received by the pensioner exceeds the equivalent of 10 times the lowest base salary (salario base) paid by the Public Administration.
The amount of that salary, for the first half of 2017, was 260,250.00 colones, meaning the special solidarity contribution began to apply 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 whose annulment is sought. Furthermore, as the PGR noted, the special solidarity contribution challenged in this action is graduated or progressive, which supports the conclusion that the legislature respected the constitutional principle of proportionality.
On the other hand, I consider it appropriate to examine the challenged provisions in detail. It should be noted that the contribution established by Ley n.°9380, entitled "Porcentaje de cotización de pensiones y servidores activos para los regímenes especiales de pensionados y servidores activos para los regímenes especiales de pensiones," provides that the contribution rate for active employees, pensioners, and the State shall be 9% of the respective salary or pension amount received, and that the Executive Branch may increase the contribution percentage up to a maximum of 16% "when technical studies so recommend." Thus, the provision itself establishes a guarantee of reasonableness and proportionality for determining the respective contribution amounts. These amounts shall be established on the basis of technical studies and, moreover, such contributions shall be made proportionally according to the salary or pension amounts involved, starting from the base of 9% for the lowest amounts and rising to the highest percentage in accordance with the increase in the respective pension or salary.
Therefore, that provision is not, prima facie, contrary to Constitutional Law; this does not mean, of course, that each individual may not challenge in the ordinary courts of legality the specific contribution amount applied to them, when they consider that the conditions of legitimacy of the corresponding administrative act imposing a specific contribution amount have not been met.
Now, this contribution amount is challenged in conjunction with the special solidarity contributions regulated by Ley n.°9383 of July 29, 2016, entitled "Ley Marco de Contribución Especial de los Regímenes de Pensiones." A careful analysis of that provision requires highlighting several aspects:
The special, solidarity, and redistributive contribution provided for in the provision is intended for pension regimes that do not have their own operating fund and therefore fall upon the Presupuesto Nacional.
The levy (cotización) established by this rule begins to apply from an amount that exceeds ten times the lowest base salary (salario base) paid by the Public Administration, according to the salary scale (escala de sueldos) of the Public Administration issued by the Dirección General de Servicio Civil. As reported by the PGR, this means the levy will begin to apply from a pension amount of 2,602,500.00 colones. In other words, pensions below this amount are not subject to payment of the solidarity contribution (contribución solidaria).
The amounts of these contributions are graduated (escalonados), based on the excess pension amounts that exceed the sum resulting from ten times the lowest base salary paid in the Public Administration (see art. 3, incisos a-f).
In no case shall the sum of the special contribution (contribución especial) and all deductions applied to all pensioners and retirees covered by this law represent more than 55% of the total gross pension amount to which the beneficiary is entitled by right. In cases where this sum exceeds 55% of the total gross pension amount, the special contribution shall be adjusted so that the sum equals 55% of the total gross pension amount.
It was provided that the funds obtained from the special contribution would be deposited into the single state treasury (caja única del Estado); however, the Executive Branch (Poder Ejecutivo) was required to ensure that such funds would be allocated for the timely payment of the special pension schemes (regímenes especiales de pensiones) charged to the National Budget (Presupuesto Nacional).
The contribution applies prospectively, so it does not affect amounts already received by beneficiaries as pension payments.
From the analysis of the challenged provisions, the following conclusions can be drawn: This type of contribution does not affect funds already incorporated into the assets (patrimonio) of the beneficiaries. The amount left intact and 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 wage earners once they have retired from active working life (art. 17 of the Inter-American Convention on Protecting the Human Rights of Older Persons, Ley n.°9394). Moreover, as required by the International Covenant on Economic, Social and Cultural Rights (PIDESC), solidarity contributions—understood as a form of limitation on the right to retirement—are compatible with the nature of this right and its purpose—providing a dignified old age—but they also aim to "promote the general welfare in a democratic society" (art. 4 PIDESC).
It should be noted that the purpose of the contribution is to redirect it toward the payment of pensions that are being funded from the National Budget, that is, to avoid what has represented an onerous burden on the State. Thus, these specific contributions on pensions that have no dedicated fund of their own are intended to be reinvested to guarantee the payment of the pensions themselves and to serve the general interest of the beneficiaries of these pensions. I cannot overlook here what was reported by the authorities of the MTSS and DNP: that remuneration for pensions charged to the National Budget reaches 10% of that budget line; that is, for every 100 colones paid to pensioners under these schemes, 90 colones are covered by taxes on the rest of Costa Ricans—or through debt—and only 10 colones are collected through contributions from active public servants and retirees. Therefore, in this specific pension scheme, it is imperative to take corrective measures in order to protect and safeguard the general interest, without undermining the essential core of the right to retirement which—in the challenged provisions—is respected, since the amount that remains intact is entirely reasonable if the aim is to face the retirement period with dignity and decorum.
At the same time, with regard to the deductions applied under the special solidarity contribution, it should be noted that the provisions under examination establish caps (topes) on the pension that must be respected (55% of the total gross pension amount). As stated, the amounts deducted under this heading are graduated, depending on the actual pension amount received. Moreover, establishing a maximum cap on the total sum of deductions does not mean that—automatically—all pensioners will have their pension reduced by up to 55%, because this will depend, proportionally, on the income they receive in pension payments. That is, the rule does establish ranges depending on the pension amount received, and not in every case will the 55% ceiling necessarily be reached as the cap on the total sum of applicable deductions.
Personally, I have departed from the majority's view in considering that, in the specific case of pensions financed from the National Budget, the 55% cap is neither unreasonable nor disproportionate, taking into account all the elements examined and detailed above.
Second, I do not consider art. 71 of OIT Convention 102 to be applicable here. It should be noted that said Convention contains specific provisions 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 such benefits. Additionally, art. 71 cannot be viewed in isolation from its general context, specifically the first paragraph, which reads as follows:
"1. The cost of the benefits provided in compliance with this Convention and the cost of the administration 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 categories of persons protected" (emphasis not in the original).
That provision illustrates and contextualizes for us that these rules are designed as minimum standards so as not to burden persons of more modest means, which leads me to exclude their application to pensions that exceed 2,602,500.00 colones. In these cases, it is readily apparent that the replacement rate (tasa de reemplazo) and the amount received are far higher than the minimum old-age benefit amounts established in the OIT Convention. For this reason, I consider that the provisions invoked by the majority are not applicable to the case under examination.
It should be noted that the very name of the Convention, which dates from 1952, indicates that it deals with "minimum standards." For this reason, the State of Costa Rica would not be failing to comply with 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, and I therefore do not consider it legitimate for the majority of the Tribunal to make the forced assimilation of stating that where the term "wage earner" (asalariado) appears, retirees should also be understood to be included.
Merely as a useful element in the hermeneutic dimension, it is worth mentioning that the OIT itself issued Recommendation 202, "Concerning National Floors of Social Protection, 2012," with the purpose of providing "guidance to Members to establish national social protection floors (pisos de protección social) adapted to the circumstances and levels of development of each country, as part of comprehensive social security systems." In this instrument, within the framework of strategies for extending social security coverage, the aim is to implement social protection floors that progressively ensure higher levels of social security for the largest number of people possible, in accordance with the guidance of OIT standards on this matter. Thus, it can be seen that the purpose of these instruments is to secure social security minimums. Said Recommendation acknowledges the possibility of levying charges on pensions in order to ensure the sustainability of pension schemes themselves. For example, art. 1°, inciso 3), recognizes a series of principles. In my view, the relevant ones for examining the matter at hand are the following:
"Recognizing the general and primary responsibility of the State in implementing this Recommendation, Members should apply the following principles: (…)
Likewise, in establishing national social protection floors, the Recommendation suggests the following:
"11.
Based on the foregoing, I consider that what the challenged provisions seek to do is protect social security minimums for more vulnerable sectors and those with lower incomes—but not for pensions that substantially exceed these social security floors. Moreover, as has been seen, the OIT's own recommendations point to considering mechanisms precisely to ensure the financial, fiscal and economic sustainability of national social protection floors, taking into account, specifically, the contributory capacity of different population groups. Therefore, one cannot equate the application of a provision designed to guarantee social security minimums to retirees who receive pension amounts that substantially exceed these social security standards.
Furthermore, as has been examined, these measures not only guarantee social security minimums by leaving a substantial pension amount intact, but also pursue the sustainability of the national fiscal system, since, as has already been stated, these pensions have no dedicated financing fund of their own but are paid primarily from amounts derived from the National Budget. This would appear to be a practical application of the very principle recommended by the OIT of "solidarity in financing, coupled with the pursuit of an optimal balance between the responsibilities and interests of those who finance and those who benefit from social security schemes." For all of the foregoing reasons, I believe that the rule invoked by the majority of this Court does not apply to the case at hand, insofar as it is designed to protect minimum social-security thresholds for low wage amounts, seeking to prevent an excessive tax burden from falling on such individuals and depriving them of a reasonable and appropriate amount with which to lead a dignified life.
The logic underlying that rule does not extend to the present case, which instead requires that the principles of reasonableness and proportionality be observed and safeguarded. In my view, those principles are fully respected to the extent that they guarantee an amount that plainly appears sufficient to provide a dignified old age, responds to a need for solidarity and equity given the deficiencies in the financing of this pension system that falls upon the National Budget, and establishes graduated contribution percentages tied to the amounts of pension received. Moreover, as explained in the majority opinion, this is a legislative measure that has reasonable financial and technical support.
Consequently, I consider that this aspect of the unconstitutionality claim must be dismissed for the reasons stated." I do not contradict myself in the present case, because — as a careful reading of my arguments makes clear — the assessment I made was confined to the specific pension system examined on that occasion. As I noted in that opinion, the Minister of Finance reported that special pensions charged to the "General Expenditure Budget of the Public Administration" — such as those in question — do not have their own "fund" and do not accrue capitalization; this is because income from state, worker, and employer contributions is far lower than the expenditures arising from the payment of retirement benefits. Likewise, those pensions are paid out of taxes and/or through funds obtained from loans, which generate interest payments for the State, with implications for indebtedness. For every 100 colones in the system, 90 colones must be financed through taxes or debt, since there are 60,000 pensioners and only 20,000 contributors.
Similarly, the authorities of the Ministry of Labor and Social Security (MTSS), as well as the National Pensions Directorate (DNP), explained that in that specific system, the special solidarity contribution scheme aimed to eliminate privileges in favor of a group of pensioners who currently pay less than 10% of the amount they receive, while the remaining 90% of their pension is paid by the rest of Costa Ricans through taxes or public debt. I must therefore clarify that the arguments from the above-cited unconstitutionality action, in which I ruled out the unconstitutionality of the 55% rate, do not apply to the case now under examination, due to the differing nature of the system and the specific technical studies that motivated the legislation under analysis.
It must be made 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 system's beneficiaries as a whole; however, such limitations must be reasonable and must rest upon a foundation that gives them adequate grounding. In the case under analysis, given the particular characteristics of the Judiciary Retirement and Pension System (Régimen de Jubilaciones y Pensiones del Poder Judicial) and the specific social burdens borne by the retired persons enrolled in this system, as well as the technical studies themselves that were submitted, I consider that a 55% cap on deductions with respect to the gross amount of the retirement benefit is indeed unreasonable and disproportionate. I do agree, however, with the reasons provided by the majority for finding that the special, solidarity-based, and redistributive contribution is not in itself unconstitutional, being a parafiscal levy with a clear economic and social purpose (Considerando III XLV, XLVI, XLVII, L, LI, LIV, and LVIII); but it does become confiscatory to the extent that it causes the total burdens a person must bear with respect to the effective enjoyment of their pension or retirement benefit to exceed 50%.
In the case under examination, as reported by the Vice President of the Supreme Court of Justice, retirees of the Judiciary Retirement and Pension System face several burdens not contemplated for other funds. Thus, retirees belonging to the Judiciary Fund (Fondo del Poder Judicial), unlike those in other systems, continue to contribute to the Fund itself for life. In this regard, Arts. 235 and 236 of the LOPJ provide, in the relevant part, as follows:
"Art. 235 — From the contributions of judicial employees, the State, and the Judiciary, the Board shall form a Fund, which shall be increased by the returns generated by its investments.
Art. 236 — The Judiciary Retirement and Pension Fund shall have the following sources of income:
"Art. 236. — To meet the payment of retirement benefits and pensions, a Fund is hereby created, to be formed from the following sources of income:
Accordingly, it is evident that historically retirees of the Judiciary Pension Fund have continued to contribute to and bolster the system itself.
What is indeed novel is that, in addition to contributions toward the maintenance of the Fund, the legislation under analysis introduced a deduction for the maintenance of the Administrative Board of the Judiciary Retirement and Pension Fund. In this regard, Art. 239 provides that the Board shall be financed through an administrative-expense commission arising from a deduction of five per thousand of the salaries earned by judicial employees, as well as of the retirement benefits and pensions charged to the Fund. In addition, pensioners and retirees must continue paying their contribution to the Illness System of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS) and, where applicable, income tax and the special, solidarity-based, and redistributive contribution for pensioners and retirees of the Fund.
Beyond the foregoing, it is necessary to bring into consideration the technical studies that served as input for establishing a percentage for the special, solidarity-based, and redistributive contribution — specifically, "Product No. 6, Final Report: Compilation and final report: conclusions and recommendations. Final version" with respect to the project "Actuarial Study of the Judiciary Retirement and Pension Fund" from July 2017 (available at https://fjp.poder-judicial.go.cr/index.php/2013-08-08-15-26-57/estudios-actuariales-fondo-de-jubilaciones/category/352-productos and introduced as evidence for better deliberation at the request of this Court). In that technical input, several scenarios of possible regulatory frameworks were evaluated, all with the purpose of providing stability and solvency to the Judiciary Pension Fund. Those scenarios included the possibility of specifically regulating the "additional solidarity contribution" — in the terminology used by that study — at 50% of the maximum cap of the retirement or pension benefit. That report, expressly evaluating a possible problem of confiscatoriness, 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. The report states, verbatim, as follows:
"in any event, to prevent the issue of confiscatoriness from becoming an obstacle to the necessary reform of this system, it may be established that the special solidarity contribution shall apply, together with the other regulatory deductions (regular contribution on benefits, income tax, and CCSS health quota), without the total deductions exceeding the equivalent of 50% of the gross benefit of the retiree or pensioner" (Emphasis not in the original. See page 72 of the report).
From the foregoing excerpt it is possible to conclude that the report itself had doubts about the proportionality of the measure, but chose to set the calculation at a maximum of 50%, an amount that served to illustrate the scenarios in question and to construct the regulatory proposal that was ultimately enacted.
Consequently, if that was the value suggested in the technical study and there are no elements that shed light on the reasonableness of raising that percentage by an additional 5%, I consider that the excess percentage must be declared unconstitutional for being unreasonable (lacking the support needed to legitimize it).
It is likewise necessary to highlight that the resources obtained through the special, solidarity-based, and redistributive contribution are intended to be reinvested in the Retirement Fund itself, which makes it unreasonable to establish a cap of up to 55% in the sum of deductions to be applied without technical support. It must be taken into account that persons enrolled in this Pension and Retirement Fund already have a fixed contribution of 13% of their pension or retirement benefit to the Fund itself, which — as examined — does not occur in other pension systems. In my view, the situation of this pension system, in which historically each retired or pensioned person contributes to the maintenance of the fund, cannot be equated with one that is financed primarily from national budget funds and with respect to which I concluded that the 55% cap is not unconstitutional.
Finally, I consider that in declaring the unconstitutionality of that excess 5% — which departs from the technical study — the other items examined here must not be affected, namely: the 13% contribution to the fund, the amounts for financing and administrative expenses of the Administrative Board of the Fund, health insurance, and income tax; but it is appropriate to reduce the percentage pertaining to the special, solidarity-based, and redistributive contribution of pensioners and retirees regulated in Art. 236 bis of the LOPJ.
Accordingly, from my perspective — and on this point I do agree with the majority of this Court — the sum of deductions to be applied to all pensioners and retirees of the Judiciary Retirement and Pension Fund may not exceed 50% of the total gross amount of the pension to which the beneficiary is entitled by right (Arts. 236 and 236 bis of the LOPJ).
IV.DIFFERENT REASONS REGARDING THE ALLEGATIONS RELATING TO THE FAILURE TO ACCOUNT FOR THE DIFFERENTIATION IN RETIREMENT AGE BETWEEN WOMEN AND MEN
In order to examine this grievance raised by the petitioners — to the effect that it is discriminatory that a gender criterion was not contemplated for the recognition of ordinary retirement benefits under the Judiciary Retirement and Pension System — it is first necessary to examine the context and the motivation that led legislators to adopt this regulatory framework.
As evidenced by the majority opinion of this Chamber, beginning in 2012 and 2013 the results of actuarial studies were made public, revealing the severe deficit of the Judicial Branch Pension Fund (Fondo de Pensiones del Poder Judicial). This prompted an internal mobilization with proposals to reverse the problem. Likewise, the bill, from its very origins, demonstrated the intent to carry out a comprehensive reform of this specific retirement system (régimen) with the aim of eliminating abusive provisions, rationalizing expenditure, and restoring stability and balance. All of this was grounded in the principles of solidarity, equality, redistributive justice, and efficiency, which are pillars of the Social State of Law. The very objective of the bill was to correct situations that were undermining the sustainability of the pension systems (regímenes de pensiones), on the basis that there was an unavoidable duty to address all those inconsistencies that were causing harm to the financial stability of the system.
The goal was to put forward a sound and responsible proposal in the face of the dramatic situation that was unfolding, making it necessary to adopt measures to protect the retirement expectations of those who were and continue to be contributing to that system. It should be noted that in the legislative history of the bill, an explicit intent is apparent to overcome a severe actuarial deficit which, in the absence of concrete measures, worsened the situation and made legislative intervention by the Poder Legislativo urgent (see the statements of the Executive Director of the Judicial Branch in the legislative file; Considerando VII of the majority judgment). In that regard, the pressing need to make structural adjustments to the Judicial Branch Pension Fund was established, given its actuarial unviability and the insolvency toward which it was heading. In the explanatory memorandum of the bill processed under legislative file n.°19.922, the following was stated:
"We, the proponents, consider it of the utmost importance to include within this proposal the Pension and Retirement Fund for Employees of the Judicial Branch (Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial) and to present a sound and responsible proposal in light of the situation it is facing.
As legislators, our concern is fundamentally rooted in the need to review and, where appropriate, limit the benefits received by members of that system, which is characterized by the absence of a cap on the pensions granted, by allowing judicial employees to retire at sixty years of age, enjoying a retirement benefit equal to the average salary calculated from the twenty-four best ordinary monthly salaries, among other aspects that place the balance of the system at risk.
Many judicial employees retire at an early age, and in some cases enjoy 'luxury pensions,' which represent a latent danger and a risk to the sustainability of the Fund in question, making plain the great disparities that exist among the pension systems in our country. Furthermore, the disproportion among various pensions of judicial employees has been exposed, which compels us to examine this situation carefully and to seek a serious and responsible solution.
During the year 2012, results of actuarial studies were presented that generated a real alarm about the need to apply adjustments to this legislation, with the aim of reversing actuarial imbalances that have been made evident and that have raised concern about the need to review this system and carry out the necessary reforms so that it may adapt to the social and economic reality of our country, and be endowed with the sustainability it needs to move forward and be supplied with funds for its adequate functioning." (Emphasis not in the original.)
Accordingly, it is confirmed that it was urgent to adopt decisions to ensure the sustainability of the system. Thus, within that context, and given that this is a special pension system (régimen de pensiones propio), all beneficiaries, both men and women, were required 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 members, both men and women, experienced a personal sacrifice in the measures agreed upon in order to attain their own pension or retirement (years of service, age, pension amounts, special contributions, etc.), but that personal sacrifice was designed with a view to ensuring the sustainability of the fund, for the benefit not only of their subjective right (to continue enjoying the pension or retirement), but also in protection of the fundamental rights of the entire community enrolled in this specific system, with the aim of making it robust and solvent.
That said, the question is whether it is constitutionally required that the legislature provide for a specific differentiation in this matter. My answer is that it is not. Neither the Constitución Política nor the international instruments signed by our country and invoked by the petitioners require this specific solution in order to guarantee the fundamental right to retirement or social security for women.
Indeed, a comparison between the current and the prior regulations shows that even the prior rules did not provide for a differentiated retirement age between men and women for the purpose of obtaining the ordinary pension (pensión ordinaria). The current provision reads as follows:
"Article 224 — Judicial employees with twenty or more years of service in the Judicial Branch may opt for an ordinary retirement benefit 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 (índice de precios al consumidor, IPC), as 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." (As amended by Art. 1° of ley n.°9544 of April 24, 2018. Emphasis not in the original.)
Whereas the corresponding predecessor article regulated the matter as follows:
"Article 224 — Judicial employees may opt for a retirement benefit equal to the average salary calculated from the twenty-four best ordinary monthly salaries earned in service of the Judicial Branch, provided they have reached sixty-two years of age and the number of years worked for the Public Administration is at least thirty. In no case may the amount of the retirement benefit exceed the equivalent of the income of a member of the legislature (diputado), with income understood to mean per diems (dietas) and representation allowances (gastos de representación)." (Emphasis not in the original.)
A careful reading of that provision reveals that it did not contemplate the distinction that the petitioners now find lacking. Indeed, a potential declaration of unconstitutionality would in no way remedy the situation they seek and would not benefit the position of women, since the previously applicable provision, as can be seen, likewise contained no gender-based distinction with respect to retirement age, but instead required sixty-two years of age equally of all.
That said, this does not mean that the legislature lacked the ability to carry out a concrete analysis of the sex variable. In fact, the record shows that this variable was evaluated in the corresponding technical studies that were required; however, when the distinctions demanded by the petitioners were introduced, the result was the insolvency of the fund. In the above-mentioned study "Product No. 6, Final Report: Compilation and final report: conclusions and recommendations. Final version," relating to the project "Actuarial Study of the Judicial Branch Retirement and Pension Fund" from July 2017, several analytical scenarios were examined (Marco normativo vigente, Texto Sustitutivo, Propuesta de Corte Plena, and Marco IICE_1) in which a distinction in retirement age between men and women was contemplated for purposes of obtaining the ordinary pension, setting the age for men at 65 and for women at 62.
However, none of those proposals guaranteed the actuarial solvency of the fund; rather, it was under the Marco IICE_3 and Marco IICE_4 scenarios (in which no distinction was made between men and women based on age or years of contributions) that it was concluded the Fund would achieve actuarial solvency and would be able to honor its commitments over the long term using only the resources allocated under the framework in question (i.e., it would be self-sufficient), with insolvency arising only under a "pessimistic" economic-financial scenario. Those inputs were ultimately what served as the basis for the proposal approved by the Comisión Especial charged with examining and issuing a report on the bill. Furthermore, during the parliamentary process it was explained that the text approved by the committee was based on the actuarial study commissioned by the Corte Suprema de Justicia from the IICE and was in keeping with the recommendations set out in the final report submitted by that body.
In the justification for the committee report, part of the presentation by IICE representatives during the hearing held at session number 20 on July 19, 2017 was incorporated, which, in the relevant part, stated the following:
"If we look here, we can see that under the current framework, there was, as had been discussed initially with you on another occasion, a deficit of five point thirty-six trillion colones, and an insolvency indicator that essentially far exceeded the five percent established at the general level by actuaries as the minimum level required 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 ratio of deficit to actuarial liability. 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, both the current framework and the substitute text and the Corte Plena proposal — both results indicate that there is a deficit and none of those 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 current system at this time. (…)
Here we have a summary of the differences among the various frameworks developed by the institute. Essentially, four frameworks are presented there. Of those four frameworks, only the last two appearing in the last two columns on the right, the Marco IICE_3 and Marco IICE_4 frameworks, are solvent, as we will see further on. (…)
Obviously, in order to achieve solvency, it is necessary to reduce the promises — essentially reduce the percentage at which each person retires — and increase the contributions, because otherwise it is impossible to achieve a process that generates solvency. (…)
We will now present the results of the Institute's frameworks. We can see that frameworks IICE 3 and IICE 4 meet the solvency standards (estándares de solvencia), generating a deficit-to-actuarial liability (pasivo actuarial) ratio of three point nine eight percent in the case of framework IICE 3, and one point fifty-five percent in the case of framework IICE 4. This is perhaps the most important finding. They are, therefore, alternatives that are relatively self-sufficient and that produce solvency scenarios. They obviously require a sacrifice on the part of the affiliates, but without that sacrifice it would be impossible to achieve solvency outcomes. We have some more specific results for frameworks IICE 3 and IICE 4, and here we present the solvency results excluding income from judicial deposits or abandoned proceedings. We can see that even in that case, this framework maintains its solvency standard, and framework IICE 4 does as well.
In that case, it meets the solvency conditions for the baseline economic scenario. For the optimistic economic scenario, it also maintains solvency conditions, both including and excluding those additional revenues that had been mentioned at some point. Some final considerations. The frameworks under discussion—which included the current framework, the substitute text, and the Corte Plena framework—are insolvent. The adjustments made to the frameworks, the substitute text, and the Corte Plena text do not resolve the insolvency of the current framework. Frameworks IICE 3 and IICE 4 are solvent with or without the additional income resulting from abandoned proceedings. Frameworks IICE 3 and IICE 4 propose adjustments in age and required years of service, as well as in the calculation of the reference salary (salario de referencia). A cap on the retirement pension (pensión de jubilación) is established.
There are adjustments to the contribution percentage (porcentaje de aporte) of participants, and in addition, a solidarity contribution (aporte solidario) is established on amounts exceeding the cap, to be paid by retirees and pensioners. Frameworks IICE 3 and IICE 4 do not generate additional burdens on the government.
The current framework is currently insolvent. It is necessary to make adjustments soon in order to avoid a further deterioration of the actuarial situation (situación actuarial) that is already in effect. That is to say, it has been so even earlier, because these figures are as of December 31, 2015." (Emphasis not in original.)
Subsequently, the legislators justified the reason why they opted, by majority, for the proposal made by the IICE, explaining the following to that effect:
"The approved text is technically supported by the Regulatory Framework (Marco Normativo) IICE_4, which is one of the models recommended by the Instituto de Investigaciones en Ciencias Económicas (IICE) in its actuarial study (estudio actuarial), and was chosen by the Reporting Committee (Comisión Dictaminadora) for the following reasons:
These regulatory frameworks only result in insolvency under a 'Pessimistic' economic and financial scenario." Now, it is also very important to bear in mind that the Instituto de Investigaciones en Ciencias Económicas of UCR expressly states in Product No. 5 of the actuarial study, in relation to the Regulatory Framework IICE_4, what the adjustments recommended to the benefit profile of the Pension and Retirement System (Régimen de Pensión y Jubilación) of the Poder Judicial entail, 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 Regulatory Framework IICE_4 establishes a series of variables that must be strictly adhered to as designed, in order to guarantee the long-term solvency necessary for the Pension and Retirement Fund of the Poder Judicial. The Reporting Committee, conscientiously and responsibly, incorporated into the approved text the variables established by the Regulatory Framework IICE_4, with the aim of not jeopardizing the present or future sustainability of the Pension and Retirement System of the Poder Judicial, and of strictly adhering to the technical recommendation issued by the Instituto de Investigaciones en Ciencias Económicas of the Universidad de Costa Rica." (Emphasis not in original.)
Consequently, based on the technical inputs that lend reasonableness to the regulation under analysis, the legislature could not have been required to approve an additional benefit in favor of women that would be detrimental to the original purpose of the bill, namely, to strengthen the Pension and Retirement Fund of the Poder Judicial. It even appears somewhat contradictory to ask the legislature to carry out a technical assessment that includes a sex-based distinction, when the one already conducted did contemplate that variable and indicated that such a distinction would cause the Fund's insolvency.
In this regard, the Procuraduría General de la República (PGR), in responding to the hearing granted in this unconstitutionality action (acción de inconstitucionalidad), stated that such distinctions are only justified when technical studies suggest the need for differentiated treatment, as was set forth by the Chamber in advisory opinion (opinión consultiva) n.°2018-5758. In accordance with the foregoing, and having confirmed that the technical study ruled out that possibility, I concur with the position that the situation under analysis is not discriminatory or injurious to the fundamental rights of women.
Furthermore, no technical elements were submitted or established that would undermine the inputs that served as support for the approval of this specific regulation, and, as already stated above, given the prior regulatory scenario, what this unconstitutionality action would seek is to legislate in a specific manner that, in addition to lacking technical support, would run counter to the original purpose of the bill, which is to provide sustainability to the Pension and Retirement System of the Poder Judicial.
All of the foregoing does not mean that the decision adopted cannot subsequently be changed by the legislature itself in light of a new scenario—better actuarial and solvency conditions pointing toward a position of financial strength of the Pension Fund. The above, with the purpose of granting differentiated treatment based on sex and as an affirmative action (discriminación positiva) measure in favor of women, which, if that were the case, could also be compatible with Constitutional Law, provided that the unequal treatment is not to the detriment of the social and economic conditions of women themselves.
However, in the scenario of approval of the regulation under analysis, no other combination of variables was envisioned that would have enabled the legislature to infer a different proposal. It must be recalled, as noted above, that in a context of the fund's precariousness, this involved the adoption of a combination of measures that entailed a sacrifice for the persons enrolled in this system, such that modifying any of these components could disrupt the harmony of the adopted model, to the detriment not only of women, but of all present and future beneficiaries of the system.
A.- On the Composition of the Chamber Regarding the composition of the Tribunal to resolve these unconstitutionality actions, I must state that I timely filed my recusal motions (gestiones de inhibitoria), first as an alternate justice (magistrada suplente) and then as a sitting justice (magistrada titular).
The first motions were accepted, but were subsequently set aside by the Presidency of the Chamber (Presidencia de la Sala), with the aim of incorporating me into the Tribunal so that I could rule on the merits of the cases accumulated under unconstitutionality action n.°18-7819-007-CO. It was precisely for that reason that I filed the second motions, but they were denied.
In light of this situation, I raised my challenges before the Presidency and the Full Court (Pleno) of the Constitutional Chamber (Sala Constitucional); however, they were dismissed and, therefore, I was required to participate in the resolution of this matter. Nevertheless, I consider it appropriate to place on record the considerations made by me in judgment n.°2020-015544, in which the Full Court declined to rule on the merits of my challenges regarding the manner in which the Chamber was composed for the resolution of these unconstitutionality actions. In that ruling, I set forth the following conclusions:
"The correct interpretation of art. 29 LJC must be that, when the same ground for recusal covers both sitting and alternate Justices, the case is authorized to be heard by the sitting members. However, when there are additional or different grounds, a specific and concrete analysis of the ground raised must be carried out, on pain of distorting the clear wording of the aforementioned article.
The literal text of the provision is a limit on the interpretive capacity of the judge (see rulings authored by Justice Rueda Leal, 2016-16967, 2018-7208, and 2018-14090). For that reason, the constitutional judge, when making interpretations—including those related to the proper composition of the body—is also constrained by the body of rules (plexo normativo) governing this jurisdiction, on pain of contravening the democratic system.
I consider that the literal text of art. 29 LOPJ is being distorted by a practice and interpretation of the Presidency of the Constitutional Chamber (Sala Constitucional), because, faced with any recusal motions (gestiones de inhibitoria)—without a particularized analysis—it applies that provision indiscriminately, overlooking the need to conduct a concrete examination of each situation in order to ensure the proper composition of the Court itself.
In strict application of the principle of perpetuity of jurisdiction (principio de la perpetuidad de la competencia), the Presidency of the Constitutional Chamber could not unilaterally disregard the provision of art. 16 CPC, which mandates—also for constitutional jurisdiction—the invariability of the composition of the Court when hearing a specific case.
Once the Court had already been constituted to hear the unconstitutionality action (acción de inconstitucionalidad), it was not possible to go back, much less to dissolve the body for the purpose of enabling me to participate, given that I had been separated and disqualified from hearing this proceeding well in advance; and, moreover, the reasons for which I had been separated still subsisted.
Two clarifications must be made. First, what is raised here differs substantially from a recusal (recusación) motion based on possible criminal or disciplinary complaints. The grounds of direct interest (previously stated by a Justice (Magistrado) in a proceeding, which compromise his or her impartiality in resolving a matter) cannot be equated with recusals filed against a particular Justice with the evident purpose of removing him or her from hearing a specific proceeding.
Second, substitutions cannot be equated with a dissolution of the body: the principle of perpetuity of jurisdiction is not broken when an alternate Justice (Magistrado suplente) fortuitously hears a specific case by being designated to sit on the Court for a particular period, where the cause of the substitution is the leave, incapacity, or vacation of a regular Justice. In such cases, clearly, there is no dissolution of the body or disregard for the principle of perpetuity of jurisdiction, but rather a mere temporary substitution for the aforementioned reasons.
In sum, based on the foregoing, I consider that this motion should have been admitted and merited resolution as an absolute nullity (nulidad de pleno derecho), given that the challenged rulings contain nullities in the assessment of the regulatory framework (plexo normativo) governing Constitutional Jurisdiction.
Following the deliberation in which I participated, I continue to hold that the ruling of the Presidency of the Constitutional Chamber issued in these proceedings at 09:00 hrs. on April 15, 2020, by which it dissolved the body and declared me qualified to hear the proceeding, is null and void. Indeed, adherence to hermeneutic canons and normative rigor point to the conclusion that that ruling is an absolute nullity by operation of law for violating arts. 25, 29.2, 31 de la LOPJ; 4 y 14 de la LJC; and the principle of perpetuity of jurisdiction, expressly regulated in art. 16 CPC.
I must finally state that it is evident that all of my conduct has been guided by the principle of good faith." These are considerations that I must repeat in this merits ruling, in order to make plain my disagreement regarding the manner in which this Court was composed to resolve the unconstitutionality actions under examination.
B.- On the alleged germaneness (conexidad) The petitioners challenged an alleged defect with respect to the principle of germaneness in the processing of the bill. They contest that originally it was a general bill seeking to reform several pension regimes, but that, subsequently, the parliamentary process focused exclusively on the reform of the Judiciary's Pension and Retirement System (Régimen de Pensiones y Jubilaciones del Poder Judicial).
On this point, it is noted that both the majority opinion and my dissenting vote (voto salvado) make extensive reference to the explanatory memorandum (exposición de motivos) of the bill. From the spirit of the parliamentary initiative, the legislature's motivation to make adjustments to the specific Judiciary Pension and Retirement System is clearly apparent, with the purpose of presenting a proposal "solid and responsible in view of the situation it is undergoing." There was even considerable transparency to the effect that it was necessary to review, and if appropriate, to limit the benefits being received by members, enumerating situations that, from the perspective of the bill's proponents, were problematic, such as: the absence of a cap on pensions, the possibility of retiring at age sixty, and the amounts of retirement benefits. These conditions, in the view of the proponents, entailed "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 made evident, which compels us to analyze this situation carefully and seek a serious and responsible solution" as well as "to make the necessary reforms so that it may adapt to the social and economic reality of our country and endow it with the sustainability it needs to move forward and nourish it with funds for its proper functioning." Now, as evidenced in the majority opinion, the initial bill was aimed at reforming all pension regimes; however, thereafter, the Legislative Branch (Poder Legislativo) focused on processing separately and specifically the reform of the Judiciary Pension and Retirement System (see Considerando VII). Although I consider that the legal technique employed is not the most suitable, I understand that the principle of germaneness in the processing of the bill under analysis has not been infringed, since, as demonstrated, the original purpose did include the reform of the Judiciary's specific system.
It is true that part of the bill was curtailed by excluding other regimes, and one could consider that there was eventually some infringement of the principle of germaneness, but it was not substantial. Indeed, the truth is that, as confirmed, the purpose of the bill did clearly include the intent to regulate the Judiciary Pension and Retirement System, so that if during the parliamentary process the decision was made to focus in a specialized and specific manner on this particular system, what occurred does not infringe this specific bill.
C.- On the 18-month period provided in transitorio VI I agree with the considerations made by the majority of this Chamber regarding the constitutionality of the eighteen-month period provided in transitorio VI of ley n.°9544 as a deadline for meeting requirements and retiring or obtaining a pension under the prior regulatory framework (see considerando LXIX). This period was established based on this Chamber's own jurisprudence, which has deemed it reasonable for defining vested rights (derechos adquiridos) in pension matters (see for example votes numbers 846-1992, 06491-1998, 3551-2014, 12606-2014, 1214-2015 y 2655-2015, among others).
However, the foregoing does not mean that a longer period could not also be compatible with the Constitución Política. In that regard, from my perspective, it should not be understood that this eighteen-month period is necessarily the constitutionally required one for these regulatory scenarios, as it could eventually be longer. It should be recalled that the Chamber has indicated that there is no strict right to the constitutionalization of time periods, which is precisely what I am asserting in the sub lite.
Now, what happens is that in the specific case this period is indeed considered reasonable, not only because it is grounded in this Chamber's own jurisprudence, but also in the technical studies that served as input for the construction of the final legislative decision. Note that this period was indeed one of the technical requirements for designing and implementing the corresponding modifications in order to provide financial support to the Judiciary Pension and Retirement System and to expedite the implementation of the measures. Consequently, in this specific regulatory proposal two criteria were combined: on the one hand, this Chamber's jurisprudence on the matter and, on the other, the technical basis and the rationale around which the approval of this legislation revolved, namely, the actuarial solvency of the fund. In this regard, the IICE technical study made the following assessments regarding a possible extension of the transitory provision to two years:
"An increase in the 'transitory provision' postpones adjustments and therefore negatively affects the Fund's revenues. To properly assess the effect of increasing this transitory provision, a full actuarial analysis would be necessary.
Furthermore, a decision in this direction may induce administrators and political agents to make efforts to include successively larger groups, such that in the end a 'transitory provision' of two years would end up becoming a transitory provision of five, six, or even more years.
Finally, the extension of the transitory provision postpones some of the adjustments, so the analysis of the Fund's profitability and solvency may create the impression that the adjustments that were made did not take effect." (Emphasis not in the original.)
As can easily be concluded, the technical study advised against extending the transitory provision period to two years. In accordance with the foregoing, it is necessary to reiterate that the regulatory design is anchored in a series of variables that sought to give solidity to the Judiciary Pension and Retirement Fund. Therefore, modifying any of these elements without the corresponding technical support could cause all the other elements to become unaligned, to the detriment of the Fund itself and of all beneficiaries.
D.- On the regulatory framework In previous separate opinions (véanse las sentencias 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316) I have made some considerations regarding the exercise of constitutional review (control de constitucionalidad) and international instruments as a standard of assessment. In this regard, in the relevant part and in summary, I stated the following:
"The function of reviewing the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text, but only in art. 73.d) LJC; yet it is not contrary to the former, as it makes it possible to guarantee the effectiveness of art. 7 CP. This function of reviewing such conformity is a different function from that exercised by the Chamber by virtue of art. 10 CP—constitutional review—and from that established in art. 48 CP—jurisdictionally guaranteeing constitutional rights and fundamental rights established in international human rights instruments.
When this Chamber exercises its function of constitutional review, it is not appropriate for it to draw upon treaties and use them de facto as if they were part of the constitutionality standard (parámetro de constitucionalidad). Such instruments, and only if duly ratified, may constitute a standard of conformity of legal and infralegal norms with themselves, by virtue 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 foundational principle of every democratic State governed by the rule of law." (Emphasis not in the original votes.)
In the present case, the majority opinion makes reference to the criteria of the Social Rights Committee of the Council of Europe, to the case law of other Constitutional Courts such as those of Colombia and of the Inter-American Court of Human Rights itself. Furthermore, when examining the subject of judicial independence, reference is made to the "Principios Básicos relativos a la independencia de la judicatura" adopted during the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Likewise, invocation is made of Convenio n.°128 and Recomendación n.°131 on invalidity, old-age, and survivors' benefits of 1967. I consider the mention of such instruments to be entirely pertinent, provided it is understood to serve hermeneutical purposes and not as elements that form part of the standard of constitutional review (parámetro de control de constitucionalidad).
Anamari Garro Vargas 1 [1] In this regard, folios 87 and 88 of the legislative file (expediente legislativo) read as follows:
f. 87 "I inform the ladies and gentlemen deputies that a motion has been submitted for inclusion in the file, establishing a substitute text (texto sustitutivo) for the discussion of this proposal based on the file….
Excuse me, let me clarify that the base text will be that of file 19.651, which is being incorporated by means of a substitute-text motion signed by all the caucuses (fracciones), so that at the time proceedings begin under Article 208 bis of file 19.922, the substitute-text motion that uses as its basis the bill that had been presented by various Poder Judicial organizations will be considered.
That is the base text that would be used for discussion of bill 19.922, which would also be assigned to the relevant committee for a period of four months, thus allowing time for it to return…, so that the actuarial report and study being prepared by the Universidad de Costa Rica on the Poder Judicial pension fund may be received.
The motion is open for debate.
Deputy Edgardo Araya Sibaja has the floor.
Deputy Edgardo Vinicio Araya Sibaja:
Thank you very much, colleague President, colleague deputies, ladies and gentlemen.
I merely wish to place on record our contrary position, our opposition to this fast-track (vía rápida) motion under Article 208 bis, which is being sought for bill 19.922, which to this day remains a bill 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 are voting against it because what Frente Amplio has stated is that when there is a fast-track procedure, a qualified majority is required for a text to enter that procedure, that fast-track path. However, what is ultimately resolved on the merits of that text cannot be controlled.
A simple majority could change the text that, let us say, had been reached by consensus at the time it entered the fast-track procedure.
We put this to the Poder Judicial trade unions (gremios) a few hours ago—they were there, having met with the President of the Assembly where several deputies were present.
And the Poder Judicial trade unions said: Well, if the only thing remaining of file 19.922 is going to be the number, and if into file 19.922 the new text to be incorporated is exactly the one currently in file 19.651—which was the one submitted by the trade unions—the trade unions said they had no major objections.
But as of today….
President Antonio Álvarez Desanti:
I kindly ask everyone to please remain silent so we can hear Deputy Edgardo's presentation, which is also important so that what he is stating—and what was stated by the Poder Judicial trade unions—may be recorded in the minutes.
Deputy Edgardo Araya Sibaja:
In that way, the representatives of all the Poder Judicial trade unions were informed by this deputy of the risks entailed by the fast-track procedure—of the risks involved in the fact that it is one thing what text goes in, but there is no guarantee that that text will be what comes out.
And in that regard we said so, because they asked this deputy to sign the substitute text of that file 19.922 to place on record that it was the full and complete text of file 19.651—for those in the public galleries (barras), we are speaking of Poder Judicial pensions, Poder Judicial pensions.
Well, at this moment the substitute-text motion is under review, so we have not signed anything, but we told them clearly that we were not committing to vote for this fast-track motion because we had only learned of this fast-track motion a few hours ago, just a few hours ago.
And the problem with that fast-track motion is no small matter, because these are complex motions that regulate a series of steps, a series of procedures.
And if one fails to think carefully about whether it is a motion drafted hastily and in a rush, the risk we face is that afterwards there may be significant procedural violations that could even affect the validity of that procedure.
That is why—and I wish to place the position of the caucus (bancada) absolutely on record at this moment for those reasons—because we do not have a clear text as to which text we are really going to debate now in file 19.922, and because we do not have clarity regarding that motion, which we barely learned of barely four hours ago and which requires more thorough study, this legislative caucus (fracción legislativa) will vote against that fast-track text…, that fast-track motion, which I reiterate carries the risk that there is no political guarantee at that moment that the text the trade unions believe is going in is the same one that will come out.
Thank you, colleague President.
President Antonio Álvarez Desanti:
The motion has been sufficiently debated.
I ask the ladies and gentlemen deputies to please take their seats (curules) in order to proceed to vote.
I ask that the doors be opened so that the deputies who are in the Salón de Expresidentes and near the corridor may return.
….
There are forty-nine ladies and gentlemen deputies present.
I will repeat so that we are clear: today this motion we are voting on was discussed with the Poder Judicial trade unions and with representatives of the Poder Judicial administration, who agreed to it in the terms I indicated.
There is a substitute-text motion being added to the file so that the basis for discussion will be the original text of file 19.651, which was the proposed amendment to the Poder Judicial pension system, presented by a significant number of deputies of this Asamblea Legislativa and drafted within the Poder Judicial.
That would be the base text with which that committee would work over a four-month period to await the arrival of the actuarial study being prepared by the Universidad de Costa Rica, a period during which there will be sufficient time to receive, at hearing, the various organizations and the authorities of the Poder Judicial, with a view to enabling the reform of the Poder Judicial pension system to move forward.
That is the purpose of this motion.
Accordingly, there are forty-nine ladies and gentlemen deputies in the chamber.
I ask that the doors be closed.
Those who agree that Article 208 bis proceedings be initiated pursuant to the motion submitted with respect to file 19,9222 for Poder Judicial pensions in the explained terms, which are set out in the motion, will manifest their agreement by rising. Forty-nine ladies and gentlemen deputies are present; for approval, thirty-eight votes are required.
Thirty-nine deputies in favor, ten against, approved." (A motion for reconsideration was subsequently submitted and was rejected by 40 deputies
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:
“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:
(…)
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.
“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.
“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.
“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.
“(…) 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.
“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.
“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.
“(…) 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:
“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:
“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.
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:
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:
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”.
“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.
"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).
"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).
“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.
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:
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:
(...)
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).
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:
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:
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...
e)…
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:
(...)
(...)" (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:
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:
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.
“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.
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:
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.
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.
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:
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.
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" (...)
(...)
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:
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.
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).
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:
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.
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.
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:
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.
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.
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.
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:
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.
“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.
“...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...”.
“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.
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.
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”.
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...
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:
(...)
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.
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.
“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:
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.
“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:
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:
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.
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 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:
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:
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:
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:
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).
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”.
“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).
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).
“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)”.
“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).
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.
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.
“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.
“(…) 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.
“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.
“… 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.
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.
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.
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.
“… 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.
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.
“… 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.
“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:
“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.
“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.
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.
“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.
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.
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.
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.
“... 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.
“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.
"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.
"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.
"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.
“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.
"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.
"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.
“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.
"(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.
“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.
"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.
“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.
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.
“(...) 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).
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.
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:
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. 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.
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.
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.
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.
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.
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.
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.
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.
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:
“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:
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:
5. Discusión de proyectos de ley, los cuales se conocerán en el siguiente orden:
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:
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.
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”(…)
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:
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:
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:
"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:
El contraste entre la ley actual y la anterior, en los temas abordados por los artículos arriba citados arroja lo siguiente:
Por otra parte, en lo que respecta a la jubilación anticipada, los cambios se resumen así:
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:
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:
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:
“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.
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:
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:
“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:
"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:
Tienen derecho a pensión por orfandad:
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:
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.
“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:
[…]
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:
[…]
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:
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:
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:
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.
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)”.
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”.
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.
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.
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.
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).
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.
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.
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.
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:
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:
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) …
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:
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:
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:
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):
No podrán ser miembros de la Junta:
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:
…
…”.
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.
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.
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
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
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
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.
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: (…)
Igualmente, al establecer los pisos nacionales de protección social, la Recomendación sugiere lo siguiente:
“11.
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:
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:
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:
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.
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
Document not found. Documento no encontrado.