Constitutionality of the 20-year judicial service requirement for early retirementConstitucionalidad del requisito de 20 años de servicio judicial para jubilación anticipada

1 *210222660007CO* Res. No. 2022-010593 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at eleven hours and fifty minutes on the eleventh of May of two thousand twenty-two.

Action of unconstitutionality brought by Mario Alberto Mena Ayales, of legal age, married twice, retired judicial employee, attorney, identity card no. 1-525-362, resident of San José, in his capacity as president of the Asociación Nacional de Empleados Judiciales, against Article 224 bis of the Ley Orgánica del Poder Judicial, amended by Law no. 9544 of April 24, 2018.

Having reviewed:

1.- By filing received in the Secretariat of the Chamber at 14:43 hours on November 3, 2021, the plaintiff requests that Article 224 bis of the Ley Orgánica del Poder Judicial, amended by Law no. 9544 of April 24, 2018, be declared unconstitutional. He alleges, to that effect, that the Consejo Superior, in session no. 51-19, held on June 4, 2019, Article XLVII, in accordance with the provisions of Articles 81, subsection 12, and 226 of the Ley Orgánica del Poder Judicial and Transitory Provision I of Law No. 9544, as well as the agreement adopted by Corte Plena in session no. 53-18 of November 19, 2018, Article XXI, by majority, recognized for purposes of seniority bonuses (anualidades) and retirement (jubilación) for attorney Ana Ivannia Barrantes Venegas, 27 years, 9 months, and 7 days worked for the Ministerio de Trabajo y Seguridad Social, starting from March 24, 2017, with the obligation to reimburse to the Fondo de Jubilaciones y Pensiones del Poder Judicial the sum of 158,084,040.32 (one hundred fifty-eight million eighty-four thousand forty colones and thirty-two céntimos). Following the foregoing procedure, attorney Barrantes requested to be informed about a future retirement, therefore Master Oslean Mora Valdez, Administrative Support Manager of the Junta Administradora del Fondo de Jubilaciones y Pensiones, replied that the Ley Orgánica del Poder Judicial, in the amendment introduced by Law No. 9544 in its Article 224 bis, establishes the possibility of availing oneself of an early retirement pursuant to the provisions therein. Said norm establishes, as one of the retirement requirements, having worked at least 20 years for the Poder Judicial, meaning that in the event of not meeting the requirements of Transitory Provision VI of Law 9544, the judicial employee must avail themselves of the new conditions imposed by said amendment, that is, even when the person has more than 31 years of work service for the State, as in the specific situation of attorney Barrantes -and of other judicial employees-, for whom there were expressly recognized “for purposes of seniority bonuses (anualidades) and retirement (jubilación)... 27 years, 9 months, and 7 days worked for the Ministerio de Trabajo y Seguridad Social”, because they do not have 20 years of work for the Poder Judicial, they could in no way avail themselves of the retirement benefit, as they will have to reach 65 years of age and comply with subsection b) of Article 224 bis of the Law. He accuses that, consequently, not only did the administrative body incur in a statement that created a false retirement expectation for the employee, by expressly recognizing her years of service for purposes of seniority bonuses (anualidades) and retirement (jubilación), causing her to incur a considerable financial expenditure, but also that the contested norm, as amended, violates the single employer (patrono único) principle since it forgets that both the Poder Judicial and the Poder Ejecutivo -within which the Ministerio de Trabajo y Seguridad Social is found- form part of a single employer, the State, so the application of the norm cannot be to the detriment of the employee nor be applied unequally among equals. For its part, the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial requested a report from the Dirección Jurídica to rule on the matter, as there are no precedents on the subject, with Master Rodrigo Alberto Campos Hidalgo, interim Dirección Jurídica and Master Argili Gómez Sui, interim Subdirectora Jurídica, by legal opinion No. DJ-C-208-2021 of April 20, 2021, reporting the following: “(...) The Ley Orgánica del Poder Judicial, in the amendment introduced by Law No. 9544 in its Article 224 bis, establishes the possibility of availing oneself of an early retirement pursuant to the following precepts: Having completed at least 20 years of work for the Poder Judicial is one of the requirements to obtain the retirement benefit, which must be met in order to obtain the option of an early retirement. We start from the fact that your person did not meet the requirements of Transitory Provision VI of Law 9544, for which reason you must avail yourself of the new conditions imposed by said amendment. Thus, the Law establishes that female contributors to the FJPPJ may retire at the age of 60 completed years for an early retirement (Art. 224 bis) or at 65 years for an ordinary retirement (Art. 224). Given the above detailed, although in your case you have more than 31 years of work service for the State, you do not have the 20 years of work for the Poder Judicial, for which reason you do not meet the legal requirements established to obtain the early retirement benefit. Therefore, upon performing a superficial analysis of your situation, the option that would allow you to obtain the retirement benefit is to be 65 years of age and comply with subsection b) of Article 224 bis of the Law... b) If retirement occurs upon the employee reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement will be granted in proportion to the years worked, provided that the number of years served is not less than twenty...”. He accuses that, as can be observed, the Poder Judicial recognized for employee Barrantes the years of service worked in another state institution, knowingly “that the retirement expectations for the requester are limited by the aforementioned regulations, given that by the time she turns 60 or 65 years of age she will lack the requirement of rendering twenty years of service in the Poder Judicial, an indispensable requirement to opt for an early or ordinary pension...”, given that she will not complete the period of 20 years worked exclusively for the Poder Judicial. A term that was imposed without technical reasoning to support it. He indicates that the amendment to the norm is unequal and even capricious, as it lacks technical support for the establishment of the minimum period of judicial service set, limiting the right that every worker has to retire, especially having provided their labor time to the same employer. For its part, the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, in session no. 19-2021, held on May 10, 2021, agreed: “To accept as rendered the legal opinion No. DJ-C-208-2021 of April 20, 2021,... 2) To remit the cited opinion to the attention of Mrs. Ana Ivania Barrantes Venegas, judicial employee. 3) The Dirección de la JUNAFO will take note of the legal opinion for future related consultations. The agreement is declared final.” He points out that from the foregoing it can be deduced that the Poder Judicial, in its capacity as State-employer, violates the retirement expectation of the judicial employee who has not worked at least 20 years in the institution, even when they have done so in another, also belonging to the State and even when that service time has been recognized by the superior administrative body itself, that is, the Consejo Superior, likewise, in its capacity as State-employer, which infringes the constitutional guarantee to retirement. This, without forgetting that the corresponding contributions to the Fondo de Jubilaciones del Poder Judicial were charged to then indicate that they do not meet the legal requirements to avail themselves of their retirement. Law number 9544 of April 24, 2018, eliminates Article 231, version number 8, which literally stated: “Article 231.- For the computation of time served, it is not necessary that the Employees of the Poder Judicial have served in it consecutively nor in positions of the same category. The years of remunerated work that have been served in other state public agencies or institutions will also be taken into account, provided the employee has served the Poder Judicial for the last five years” (the emphasis does not appear in the original). In substitution of this numeral, Article 224 bis is included in the Law, establishing a significant modification, which, according to the constitutional principles of reasonableness (razonabilidad) and proportionality (proporcionalidad), is openly and arbitrarily unconstitutional, by infringing the principle of single employer (patrono único) of the State, since it is based on a simple actuarial study, of merely economic content regarding the profitability of the Fund, which provides a base without legal content. He alleges that it is not reasonable that a person, being a public employee and coming from another institution, who is welcomed by the Poder Judicial, having their years served recognized, and being authorized the payment of the compensatory contributions, is required by means of a norm lacking technical or legal reasonableness, which empties the essential core of the retirement expectation content of those who already face a similar situation and of those who could eventually have a labor claim in the Poder Judicial, inasmuch as the term determined in the cited norm regarding 20 years is absolutely capricious and its sole purpose in its drafting and material content is to render nugatory the possibility of retiring in the Poder Judicial, which is contrary to the legal certainty of having a dignified pension. He adds that said norm is not proportional because in accordance with the very requirements of the amended norm and the life expectancy of Costa Rican citizens, it will make it practically impossible for them to access retirement. There is no proportionality between 5 years and 20 years, an absolutely disproportionate and capricious change that is not legally supported, leaving in doubt the reason for that minimum term and not keeping the 5 years or establishing some other time of service, which prove its unconstitutionality. He considers that, based on the provisions of the Constitution (Articles 50, 51, 73, and 74), international regulations (Universal Declaration of Human Rights -Articles 16 and 25-, International Covenant on Civil and Political Rights -Article 23-, International Covenant on Economic, Social and Cultural Rights -Article 10-, Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights or “Protocol of San Salvador” -Article 9-, ILO Convention 102 -Articles 59, 60, and 63- and ILO Convention 128 -Articles 20, 21, 24, and 25) and constitutional jurisprudence (decisions 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001, and 1617-2015), Article 224 bis of the Ley Orgánica del Poder Judicial is contrary to Constitutional Law by depriving all employees of the Poder Judicial of the possibility of availing themselves of retirement, despite having contributed to the system with the payment of the respective contributions, since, for the recognition of having worked in another state institution, they necessarily had to contribute the amount corresponding to the number of years recognized: “...the interested party must reimburse to this [Fund] the sum owed for the differences in updated contributions to present value using the consumer price index (CPI), defined by the Instituto Nacional de Estadística y Censos (INEC). Furthermore, the interested party must pay the average real yield that would have been obtained on the transferred sums, had they been invested by the Fondo de Jubilaciones y Pensiones del Poder Judicial during the recognized period”. He insists that, expressly, the judicial employee is being deprived of such a possibility of a retirement option, even when they have paid the corresponding amounts to the pension system of the Poder Judicial according to the contributions paid while working in another State institution, claiming that they do not meet the requirements established in the contested norm, specifically, at least 20 years of service in the Poder Judicial. Such regulation distances the Poder Judicial from the international commitments acquired by our country, which are mandatory and which have likewise been repeatedly validated by the Constitutional Chamber, disregarding the single state employer (estado patrono único) principle, which emerged as a way to assure workers who transfer from one State institution to another, continuity in the enjoyment of guarantees recognized throughout the public sector. That theory is based on the thesis that whichever the public institution served, one works for the same employer, which is the State, so the idea that because one has not worked 20 years in the Poder Judicial, even when having done so in another state institution, one cannot retire under the institution's pension system, is discriminatory. On the subject, one may consult, among many others, legal opinions C-152-2006 of April 20, 2006, and C-358-2006 of September 8, 2006, issued by the Procuraduría General de la República. He also mentions judgment of the Second Chamber of the Supreme Court of Justice no. 34 of 9:40 hrs. on March 5, 1993, cited by no. 269 of 9:30 hrs. on September 16, 1994. He also cites legal opinion no. C-256-2013 of November 15, 2013, issued by the Procuraduría General de la República. He adds that the Labor Code provides in its Article 153 that “(t)he continuity of work shall not be interrupted by leaves without pay, rest periods granted by this Code, its regulations, and its related laws, justified illnesses, the extension or immediate renewal of the employment contract, nor any other analogous cause that does not terminate it”, it being understood that the employee's labor rights persist. Furthermore, it must be taken into consideration that any type of personnel movement within the same institution or from one institution to another also does not produce a rupture in the employment relationship; this is because a new service relationship does not exist, given that it involves a single employer, which is the State. Article 4 of the Ley General de la Administración Pública states: "The activity of public entities must be subject as a whole to the fundamental principles of public service, to ensure its continuity, its efficiency, its adaptation to any change in the legal regime or in the social need they satisfy, and equality in the treatment of the recipients, users, or beneficiaries." Based on the foregoing, the norm cannot exclude judicial employees who have not worked for 20 years for the Poder Judicial, even when they have done so in other State institutions and have contributed the corresponding differences in contributions, paying the Fund for the years served, this because they have worked for a single employer, The State, regardless of the Branch of the Republic for which they have worked. Article 224 bis of the Ley Orgánica del Poder Judicial amended by Law number 9544 of April 24, 2018, violates the fundamental guarantee to retirement (jubilación), not only by openly denying this possibility to persons who have worked for the different institutions of the State, including the Poder Judicial, for not reaching 20 years of service in the institution, despite having paid the corresponding contributions, but also by being contrary to the principle of equality, as it promotes differentiated treatment among judicial employees, providing protection only to some and leaving others helpless, even when all have the same right. He deems that the indicated norm violates the fundamental right to social security and the right to retirement. It is contrary, likewise, to what is regulated in the Constitution (Articles 50, 51, 73, and 74), international regulations (Universal Declaration of Human Rights -Articles 16 and 25-, International Covenant on Civil and Political Rights -Article 23-, International Covenant on Economic, Social and Cultural Rights -Article 10-, Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights or “Protocol of San Salvador” -Article 9-, ILO Convention 102 -Articles 59, 60, and 63- and ILO Convention 128 -Articles 20, 21, 24, and 25) and constitutional jurisprudence (decisions 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001, and 1617-2015), by depriving all employees of the Poder Judicial of the right to avail themselves of retirement, despite having paid the corresponding contributions, promoting differentiated treatment among judicial employees, providing protection only to some and leaving others helpless even when all have the same right. Retirement (jubilación), as a fundamental guarantee, is an integrating element of the right to social security, as it guarantees the worker that they will receive a remuneration for the work performed during the time served. He accuses violation of the principle of reasonableness (razonabilidad). He affirms that reasonableness is actually a matter of degree regarding the violation of constitutional principles and, therefore, reasonableness (as a general limit of public function) is nothing more than the generalization (to the entire system) of the limits on the exercise of discretion in the Administration; stated another way, it is a facet of the prohibition of arbitrariness, which concerns the entire public apparatus and which in the present matter is absolutely proven. Thus, the control over the limits of the exercise of administrative discretion is restricted to ensuring compliance with the “due minimum”, for which reason the Chamber must acknowledge the manifest arbitrariness in the violation of the single employer (patrono único) principle and that the legislation that determines the years of service legally necessary established in the regulations cannot go beyond that either, the absence of technical reasonableness being absolutely clear to determine why 20 years are required to be able to opt for retirement, aspects that are absent from the legal framework subject to this action. He asserts that various authors consider that the constitutional norms that ground the principle of reasonableness are Articles 41 and 74, by making direct reference to the term justice, while others consider that its constitutional basis is found in the second paragraph of Article 28, which enshrines the principle of legal freedom. As a corollary of the different positions, the principle of reasonableness shapes fundamental rights considered integrally. Furthermore, the principle of reasonableness turns out to be a parameter of constitutionality of norms. He indicates that, in this case, it is not enough to affirm that a means is reasonably adequate for an end; it is also necessary to verify the nature and size of the limitation that, through that means, a personal right must bear, namely, that the minimum years of service in the Poder Judicial to opt for retirement are irrationally increased from 5 to 20 years. In this way, if the same end can be reached by seeking another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable as in the present matter. He cites decisions 03933-98, 08858-98, 05236-99, and 01739-02 of this Chamber, referring to the principle of proportionality (proporcionalidad). He indicates that, in summary, it is not reasonable that a person being a public employee and coming from another institution, who is welcomed by the institution itself, having their years served recognized, and being authorized the payment of the compensatory contributions, is required -through a norm lacking technical or legal reasonableness, which empties the essential core of the retirement expectation content of those who already face a similar situation and of those who could eventually have a labor claim in the Poder Judicial- to have at least 20 years of service in the Poder Judicial. The term determined in the cited norm regarding 20 years is absolutely ineffective and its sole purpose in its drafting and material content is to render nugatory the possibility of working for the Poder Judicial under conditions of minimum dignity. He alleges an infringement of the principle of proportionality (proporcionalidad). He argues that the contested norm is not proportional, because, in accordance with the very requirements of the amended norm and the life expectancy of Costa Rican citizens, it will make it practically impossible for them to access retirement. There is no proportionality between 5 years and 20 years, an absolutely disproportionate and capricious change that is not legally supported, leaving in doubt the reason for that minimum term and not keeping the 5 years or establishing some other time of service. He points out that there is an obligation to respect the principles of proportionality (proporcionalidad) and reasonableness (razonabilidad). He cites judgments of this Chamber no. 08858-98, 2000-02858, and 2002-4842. He requests that, consequently, the unconstitutionality of Article 224 bis of the Ley Orgánica del Poder Judicial amended by Law number 9544 of April 24, 2018, be declared.

2.- In order to substantiate the standing he holds to bring this unconstitutionality action, the plaintiff alleges that the action is brought in defense of a corporate interest, in particular, to safeguard the interests of the members or associates of ANEJUD, in particular, the rights to social security, retirement, and protection of the family, of persons who work in the Poder Judicial and who die. He alleges that the action is brought in defense of the interests of its associates, regarding the possibility of obtaining a fair and dignified pension for their family members in case of orphanhood. He points out that, consequently, his standing comes from the 2nd paragraph of Article 75 of the Ley de la Jurisdicción Constitucional.

3.- By resolution at 11:56 hours on November 8, 2021, the plaintiff was warned that, pursuant to Article 4 of Law number 3245 of December 3, 1963, he had to attach and pay the stamp of the Colegio de Abogados, corresponding to the authentication of the initial filing.

4.- By filing received in this Chamber at 13:26 hours on November 10, 2021, the plaintiff complied with the previous warning.

5.- Magistrate Cruz Castro filed a request for recusal, in his capacity as president of the Supreme Court of Justice, for he affirms that he could be called as a party or intervenor in the present matter.

6.- By resolution at 9:53 hours on January 4, 2022, the president of the Constitutional Chamber ordered that Magistrate Cruz Castro be separated from hearing this proceeding. Likewise, the substitute magistrate who replaces him in accordance with Article 49 of the Ley Orgánica del Poder Judicial was declared qualified to hear the present matter.

7.- Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to reject summarily or on the merits, at any time, even from its presentation, any proceeding brought to its attention that proves to be manifestly improper, or when it considers that there are sufficient elements of judgment to reject it, or that it is the mere reiteration or reproduction of a prior rejected proceeding that is the same or similar.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- ON THE STANDING OF THE PLAINTIFF. The plaintiff has standing to bring this unconstitutionality action, according to numeral 75, second paragraph, of the Ley de la Jurisdicción Constitucional, since the action is brought in defense of a corporate interest; specifically, to safeguard the interests of the union's associates.

II.- OBJECT OF THE ACTION. The plaintiff specifically challenges Article 224 bis of the Ley Orgánica del Poder Judicial, added by ordinal 1 of Law no. 9544 of April 24, 2018, which establishes:

“Article 224 bis- Employees with twenty or more years of service in the Poder Judicial may avail themselves of an early retirement if the age or number of years of service cited in the previous article are not met. This will be calculated as follows:

• a)If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement will be calculated in proportion to the employee's age:
• 1)Women must have reached at least sixty years of age and men at least sixty-two years of age.
• 2)The calculation will be made by multiplying the pension obtained according to the provisions of Article 224 for the calculation of the ordinary retirement, by the employee's age and the product will be divided by sixty-five; the result of this operation will constitute the amount of the early retirement.
• b)If retirement occurs upon the employee reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement will be granted in proportion to the years worked, provided that the number of years served is not less than twenty. To set it, the amount of the ordinary retirement, indicated in Article 224, will be multiplied by the number of years served and the product will be divided by thirty-five; the result will be the amount of the early retirement.

(As added by Article 1° of Law N° 9544 of April 24, 2018)” (the emphasis does not appear in the original) III.- ON THE MERITS. In the sub lite, the plaintiff questions that the cited Article 224 bis of the Ley Orgánica del Poder Judicial -added by Law no. 9544 of April 24, 2018- requires, for purposes of availing oneself of an early retirement from the Régimen de Pensiones y Jubilaciones del Poder Judicial, that judicial employees have “twenty or more years of service in the Poder Judicial”, to the detriment of those persons who have previously worked for other public institutions or agencies. Especially since the Ley Orgánica del Poder Judicial itself, in its Article 226, provides that if a judicial employee has “contributed in other pension systems established by another agency or by another institution of the State, the Fondo de Jubilaciones y Pensiones del Poder Judicial, at the time of granting retirement, will have the right to demand and the respective institution or agency will be obliged to transfer the amount of those contributions (worker, employer, and state) by means of an actuarial settlement”. He deems that the principles of single employer (patrono único) of the State, equality, reasonableness (razonabilidad), and proportionality (proporcionalidad), as well as the fundamental right to social security and to retirement (jubilación), are infringed. He alleges that, prior to the amendment made to the Régimen de Pensiones y Jubilaciones del Poder Judicial, by means of Law no. 9544, only five years of service in the Poder Judicial were required; however, now twenty years of service are required, which was introduced in a capricious manner, without a foundation or technical reasoning to support it.

In which case, the first thing that must be indicated is that this Chamber has stated, in reiterated jurisprudence, that the existence of diverse pension systems –including, specifically, the retirement and pension system of the Poder Judicial– is not unconstitutional, with “its special regulations –seeking to guarantee the very existence of the system, as well as its own administration–” (decision no. 2020-02841 of 9:40 hours on February 12, 2020) and with its “own rules and legal criteria for the granting of the constitutional right to retirement and to pension” (decision no. 2084-96 of 14:30 hrs. on May 7, 1996). Criterion reiterated, recently, in decision no. 2021-011957 of 17:00 hours on May 25, 2021, in which the constitutional validity of the existence of an exclusive system for the workers of the Poder Judicial was confirmed, as a special system, independent and different from the basic one, with its own eligibility requirements in order to guarantee its solvency and functioning. Which does not imply an infringement of the principle of equality. It was resolved, to that effect, that:

"XXXI.- Magistrate Hernández López continues drafting. This Chamber recalls that the content of the principle of equality established in Article 33 of the Constitución Política means that making differences between two or more persons who are in the same legal situation or in identical conditions is prohibited, without equal treatment being able to be claimed when the conditions or circumstances are unequal, agreeing in principle, equal treatment for equal situations and making possible different treatment for different situations and personal categories.

It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but to determine if a distinction is truly justified, one must analyze whether the reason producing it is reasonable, that is, if, considering the particular circumstances of the case, diverse treatment is justified (see in this regard Judgment No. 5061-94 of 17 hours 34 minutes of September 6, 1994). Hence, equal treatment should not be given in all cases regardless of the possible legally relevant differentiating elements that may exist; or, in other words, not every inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of an objective and reasonable justification, which requires an assessment of its purpose and its effects, such that there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality (see Judgment No. 1770-94 of 9 hours 18 minutes of April 15, 1994).

Based on the foregoing, in the Chamber's opinion, the appellants are not correct regarding this claim, firstly, because there is no evidentiary element that the legislator's intention was to homogenize the Judicial Branch's Retirement and Pension System (*Régimen de Jubilaciones y Pensiones del Poder Judicial*) with the CCSS's Disability, Old Age, and Death System, which is completely different in its nature, number of contributors, employer contributions, worker beneficiaries, etc., and because—even if that were true—the legislator's final result is clear regarding their will that an exclusive system exists for Judicial Branch workers, which is consistent with the inclination that emerges from the plaintiffs to keep their system in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and the IICE's own technical studies, to promote the necessary conditions so that the Judicial Branch's Retirement and Pension System continues functioning and is robust as well as solvent. Now then, it is clear to this Tribunal that this decision to maintain a special retirement system, independent and different from the basic one, entails an associated cost and originates consequences that must be assumed by its members, which, by the mere fact of being different, do not necessarily imply discrimination, a violation of the principle of equality, or the principle of the unity of social security. From this perspective, the establishment of different contribution amounts and charges for the systems, obligations whether or not to continue contributing after acquiring the right to retirement, and diverse conditions for granting the right to a person, is the result of the need to take into account the particularities and plurality of factors related to working conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits intended to be obtained upon retirement, or in attention to the social and economic policies that may intervene at a given moment. Regarding this particular, the Chamber considers that, if the primary purpose of the constituent was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of systems, provided that, as the Attorney General's Office indicated, equality criteria are met regarding state contributions. In this way, it is constitutionally acceptable that a difference exists between the pension system of the Costa Rican Social Security Fund and that of the Judicial Branch, because their enactment responds to different needs and conditions that make a simple comparison improper in terms of reductions, worker contributions, and benefit profiles, without also weighing the differences in the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. (...)." Regarding properly the substantive critique of the plaintiff, concerning the requirement of a minimum of twenty years of service in the Judicial Branch to be eligible for early retirement, as set forth in Article 224 bis of the Organic Law of the Judicial Branch (*Ley Orgánica del Poder Judicial*), it should be noted that this Tribunal has already ruled on the constitutionality of said normative provision, in the aforementioned Judgment No. 2021-011957. In what is relevant, this Chamber, by majority, resolved that:

“XXV.- Drafted by Magistrate Hernández López. On the reasonableness and proportionality of the eligibility requirements and the benefits established in Chapter I “Benefits” (*Prestaciones*), according to the reform operated by Law Number 9544.- To explain their allegation regarding the supposed violation of the principles of reasonableness and proportionality that occurred with the issuance of the questioned Law Number 9544, some of the plaintiffs state that the eligibility conditions and retirement benefits do not address the technical studies that were contributed to the legislative file, while another part of them acknowledges that the Legislature based itself on technical studies but disregarded more suitable options, thereby affecting the reasonableness of its decision.

In this regard, we have that the chapter on “benefits” (*prestaciones*) of Law 9544 incorporates the modification of the requirements under which judicial servants can obtain the right to retirement and the monetary amount thereof, as set forth in Article 224 of that legal text:

For its part, Article 224 bis regulates the conditions for obtaining an early retirement (*jubilación anticipada*), in the following terms:

| “Artículo 224 bis- Los servidores con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación anticipada si no se cumpliera con la edad o el número de años de servicio, citado en el artículo anterior. Esta se calculará de la siguiente forma: a) Si el retiro se produjera al cumplir treinta y cinco o más años de servicio, pero sin haber cumplido los sesenta y cinco años de edad, la jubilación se calculará en proporción a la edad del servidor: 1) Las mujeres deben haber cumplido al menos sesenta años y los hombres al menos sesenta y dos años. 2) El cálculo se hará multiplicando la pensión obtenida según lo establecido en el artículo 224 para el cálculo de la jubilación ordinaria, por la edad del servidor y el producto se dividirá entre sesenta y cinco; el resultado de esta operación constituirá el monto de la jubilación anticipada. b) Si el retiro se produjera al cumplir el servidor sesenta y cinco o más años de edad, pero antes de cumplir treinta y cinco años de servicio, la jubilación se acordará en proporción a los años laborados, siempre que el número de años servidos no sea inferior a veinte. Para fijarla, se multiplicará el monto de la jubilación ordinaria, indicado en el artículo 224 por el número de años servidos y el producto se dividirá entre treinta y cinco; el resultado será el monto de la jubilación anticipada”. | | --- | The contrast between the current law and the previous one, in the matters addressed by the articles cited above, yields the following:

• a)Regarding age, with the new (challenged) text, the age for ordinary retirement (*jubilación ordinaria*) is at minimum 65 years. In the text of the repealed norm, it was required as a minimum to have reached 62 years of age (repealed Article 224), which shows an increase of 3 years regarding the minimum retirement age.
• b)Regarding the number of years of service, the new (challenged) text provides the obligation to have at least 35 years of service. In contrast, the repealed norm required having worked at least 30 years in the “public administration” (repealed Article 224). The general requirement of years of service was increased by 5 years, as can be seen.
• c)To this, it must be added that it is now required to demonstrate 20 or more years of service worked within the Judicial Branch. In the previous text, it was required to have worked for the Judicial Branch the last 10 years before retirement (repealed Article 231).
• d)Regarding the amount of the retirement benefit (*prestación jubilatoria*). In the new (challenged) norm, the gross amount of ordinary retirement is defined as eighty-two percent (82%) of the average salary of the last 20 years of ordinary monthly salaries earned in their working life. In contrast, in the previous legal text, the gross amount of ordinary retirement was defined as one hundred percent (100%) of the average of the last 24 best ordinary monthly salaries earned in service to the Judicial Branch.

On the other hand, regarding early retirement, the changes are summarized as follows:

• a)Regarding retirement by time of service: the (challenged) text allows obtaining early retirement without having the required age (65 years) provided that the years of service (35 years) have been completed. That said, a minimum age is set for this type of retirement by years of service, which differs according to sex, and which will be 62 years for men and 60 years for women. In the previous legislation, there also existed the possibility of early retirement upon completing the required years of service (30 years), without demanding a minimum age, and without making a distinction between men and women. (repealed Article 225) b) Regarding retirement upon reaching the age. The current (challenged) text also allows early retirement by age, that is, without having the required time of service (35 years) but provided that the age established for ordinary retirement (65 years) has been reached and—in addition—there is a minimum time of service of twenty years worked within the Judicial Branch. The previous legislation equally contemplated this possibility of retirement by age, for which the conditions of having a minimum of 60 years and counting on at least ten years of service had to be met (repealed Art 225).
• c)Regarding the amount of the early retirement benefit. For both cases of early retirement (by years of service or by age), the method of calculating the reference amount [refers to] the new method of calculating the gross amount of retirement embodied in Article 224 of the challenged law.

In the third place, it is observed that the pensions of those who become permanently disabled have not been affected in their particular structure, but rather the disagreement is linked to the variation suffered by the challenged Article 224, in which the mechanism to determine the gross amount of the ordinary pension is established, on which will depend, in turn, the pension that may correspond to the persons affected by the contingency.

The plaintiffs warn that precisely with this reformulation of requirements and benefits established in the challenged Articles 224 and 224 bis, the onset of the substantive problems that, in their opinion, Law 9544 contains is marked, since the retirement age and the number of years that the official must work are increased, while the sum they will receive as retirement relative to the salary they were earning upon retiring is reduced, to which is added that the application of all legally established deductions generates that the amount to be received is in many cases less than 55 percent of the last salary received, which is clearly ruinous. Thus, they point to a violation of the principles of reasonableness and proportionality since—for some of them—the Legislative Assembly departed from the technical criteria and opted to adopt a system lacking foundation or support, while another group affirms that, although technical criteria were addressed, less harmful and more reasonable and proportionate options that were raised during the course of the legislative process were set aside.

XXVI.- Drafted by Magistrate Hernández López continues. The informants called to this process indicated the following regarding the harm to the proportionality and reasonableness of the new design. The Attorney General of the Republic states in its report that the need to make the disputed changes in the Judicial Branch's pension system derives directly from the actuarial studies on which said reform was based. In other words, increasing the retirement age and the number of years of contribution and reducing the economic benefits for retirees was not a decision adopted at the whim of the legislator, but rather is the result of the system's situation, which was reflected in the mentioned actuarial studies, concluding that the changes operated have the technical support necessary to affirm their conformity to Constitutional Law. It points out that the issue was already the subject of concrete analysis by the Chamber in the legislative consultation on constitutionality that gave rise to Judgment Number 2018-5758, extensively mentioned. It finally explains on this point that the new text of Article 236 of the LOPJ expressly provides that deductions may not exceed 55 percent of the gross amount of the established retirement or pension; all of this, added to the existence of technical studies on which action was taken, means the modifications do not infringe the principles of reasonableness and proportionality.

In the report rendered by the President of the Legislative Assembly, it was indicated: “It must be understood then that the law under analysis does not respond to arbitrary or whimsical criteria—a situation already analyzed by the Honorable Constitutional Chamber—therefore it does not suppose any violation of the constitutional principles of reasonableness and proportionality,” referring to the fact that the Special Commission that issued an opinion on the project took into account the referred technical study, as well as that it had the participation of the Technical Committee created by the Judicial Branch, and also referring to the fact that in Judgment Number 2018-005758 of 15 hours 40 minutes of April 12, 2018, the Chamber had pointed out that such technical studies were available.

The Vice-President of the Supreme Court of Justice, in her report, points out that regarding the percentage established in Article 224 of Law Number 9544, it is necessary to take into account that judicial servants, at the moment of availing themselves of their retirement (*jubilación*), continue contributing to the Judicial Branch Retirement and Pension Fund (*Fondo de Jubilaciones y Pensiones del Poder Judicial*) with a worker contribution of 13% according to Article 236 of that same normative body, unlike other retirement and pension systems; therefore, the amount of their retirement would be diminished and, in addition, other deductions must be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (*Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial*) which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial servants, as well as of the retirements and pensions chargeable to the fund, which could be seen as confiscatory (constitutional Article 40) or violative of the principle of non-retroactivity of the law (Article 34 of the Political Constitution) given the existence of patrimonial rights acquired and consolidated under a previous law. The Vice-President of the Judicial Branch also mentions that according to the report approved by the Full Court in session Number 26-17 of August 7, 2017, Article XXX,

“(...) this Court has been and will be respectful of the technical studies issued to procure the sustainability of the Fund; however, it cannot be obviated that we are in the presence of fundamental rights and it is for this reason that the reform also merits a study adhering to actuarial technique but also with a human rights perspective.

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

"(a) To guarantee workers a deprivation-free old age, the pension should cover essential needs. It is appropriate, therefore, that the pension guaranteed to every pensioner who has completed a determined qualifying period be fixed taking due account of the cost of living.

(b) In systems with contributions proportional to salaries, insured persons who have credited to their account the contributions corresponding to the average length of active professional life should obtain a pension that corresponds to their social situation during the period of professional activity. For this purpose, the pension guaranteed to insured persons who have credited thirty effective years of contributions should not be less than half of the salary insured since entry into the insurance or during a determined period immediately preceding the settlement of the pension (Our emphasis).

It is clear then that both ILO Convention No. 102 and Recommendation No. 43 are concordant in establishing that retirement and pension must satisfy the essential needs of persons in their old-age stage, therefore the amount must be fixed taking into account the “cost of living and the social situation during the period of professional activity.” That is to say, the standard of living that the working person had during their active professional life must be respected.

The need to make reforms to the Retirement and Pension Fund in order to procure sustainability is not unknown, but these must respond with suitability and reasonableness, as indicated by the Constitutional Chamber in Vote No. 2010-1625 of 9:30 hours of January 27, 2010, when declaring the cap on pensions established in Article 234 of the Organic Law of the Judicial Branch unconstitutional. The foregoing is concordant with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case “Admissibility and Merits National Association of Former Servants of the Peruvian Social Security Institute and Others v. Peru” (1), it outlined that the mentioned Article 26 does not exclude the possibility that a State may impose certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual affectation of the right (in this case to retirement and pension) in relation to the collective implications of the measure.” XXVII.- Drafted by Magistrate Araya García. This Tribunal considers that, as the Attorney General's Office and the Presidency of the Legislative Assembly point out, both the question of the absence of technical criteria to support the decisions of the reform operated in the Judicial Branch Retirement and Pension System (*Régimen de Jubilaciones y Pensiones del Poder Judicial*), as well as the fact that a more favorable option for the fund participants was disregarded regarding the eligibility requirements and the method of calculating retirement benefits (*prestaciones jubilatorias*), was already addressed when this Tribunal had the opportunity to analyze the legislative texts with the wording that ultimately became law of the republic. In Judgment 2018-5758 that responded to the cited constitutional consultation, it was stated on that aspect:

“XIX.- Regarding the lack of studies to set the pension calculation. The consultants consider that Article 224 of the draft law is contrary to numeral 73 of the Political Constitution. They argue that the questioned article provides that the pension calculation will be obtained from the average of the salaries of the last 20 years earned by the working person, without having technical studies regarding what the real impact on the fund's reserves will be. They add that the study that served as a basis was the one issued by the University of Costa Rica, but in it the last 120 salaries (10 years) were set as the limit for the pension calculation, therefore they consider that the Special Commission exceeded its assessments, since, without technical foundation, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. Likewise, they consider it illegitimate that the annual percentage of the returns on the Fund's investments is taken as absolute at 3%, without taking into account that the real returns were higher. Regarding the first of the allegations, the Chamber considers that, after analyzing the case file, the alleged defect is dismissed, since at folio 2942 of the legislative file, official letter number IICE-186-2017 of August 18, 2017 is recorded, in which the director of the Institute of Economic Sciences Research of the University of Costa Rica endorses the parameter established by Article 224 of the draft law, mentioning, on this particular, the following:

“a. Reference Salary for calculating the retirement or pension amount In Article 224 to be reformed, the Majority Opinion calculates the reference salary (RS) as the average of the last 20 years (RS20), updated with the consumer price index calculated by INEC, while the IICE_3 and IICE_4 frameworks calculate it as the average of the last 10 years (RS10), adjusted by the same index. It was estimated that the average salary of the last 20 years, adjusted for inflation, is 4.8% lower than the average salary of the last 10 years for the new pensioners, given the merit scale in force in the Judicial Branch. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulation, acts in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we will refer in the following subsection.

b. Worker contribution and benefit for members (…)

Now then, the Majority Opinion proposes a benefit of 85% of a reference salary of 240 months (instead of 120 months), with a worker contribution that, as commented, consists of a differential scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale have already been noted, which, as it remains at the discretion of the Administrative Board of the Judicial Branch itself, also runs the risk of being set in practice closer to 11% than to 15%, which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between this contribution and the benefit received by fund members. In this case, the team considers that a single contribution of 13% (applied to active workers, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority Opinion sets the employer contribution at 14.36% (Article 236, subsection 2), decoupling it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by the IICE.” In this sense, upon verifying that, contrary to what is affirmed in the initial brief, there indeed exists a technical criterion that endorses the parameter set by the draft law regarding the reference salary for the pension calculation, the Tribunal dismisses the existence of the alleged defect.

On the other hand, regarding the second of the consultants' allegations, the Chamber considers that, in essence, what is questioned is whether the parameters that served as the basis for setting the requirements to obtain the right to a pension were suitable or not, an extreme that does not imply that the norm is unconstitutional, as the consultants consider, hence the defect is considered nonexistent.” In a similar manner, it had been previously pointed out in the same judgment:

“XV.- On the alleged violation of the principle of judicial independence. (…) The Chamber considers that the above complies with what is established by international doctrine, in the sense that it is the public powers who bear the burden of proving that the cutbacks are justified in light of the set of socioeconomic rights, and that in the event that an administration needs to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects these may have on the rights of those affected and the system, as well as that there are no less onerous measures that could have been taken, a situation that is fulfilled in this case, taking into account the analyses carried out by the University of Costa Rica in the actuarial studies of the Judicial Branch Retirement and Pension Fund (*Fondo de Jubilaciones y Pensiones del Poder Judicial*). (…) Thus, in attention to the foregoing, the Chamber does not consider that the alleged defect is present.” And it added a little further on:

“XVII.- On the changes in the requirements to obtain the right to a pension. The consultants consider that Article 224 of the draft law harms the principles of proportionality and reasonableness because the retirement age and the number of years that the official must work are increased, but the percentage of money they will receive as a pension relative to the salary they were earning is reduced. Likewise, they question Transitory Provision VI of the draft, 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 protection of what was established by Law No. 7333. The questioned norms provide as follows: (…) It should be noted that the right to retirement is not unrestricted, as it can be subject to certain limitations, provided that these are established through a formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the authority to establish restrictions on the right to retirement, when it can be proven that certain situations exist that put the sustainability of a system at risk and, therefore, threaten the nature of the system as such. On this particular, in Vote Number 2379-96 of 11:06 of May 17, 1996, the following was established:

(…)

Now then, from what has been set forth, it is clearly inferred that the right to retirement can be subject to limitations, like any other fundamental right. The foregoing entails that a person does not have a right to retire under specific conditions, since these can be varied when necessary to guarantee the existence of a specific pension and retirement system, because otherwise, conditions could be created that make the system financially unsustainable, which would ultimately lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the nonexistence of funds that prevent the payment to the interested party of their retirement amount. Given this scenario, the Chamber considers that the questioned norms are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Judicial Branch Retirement and Pension System (*Régimen de Jubilaciones y Pensiones del Poder Judicial*), for which parameters and requirements were set based on the opinion of experts that were received by the Special Commission that issued an opinion on legislative file number 19.922, as well as studies of a technical nature that verified the existence of a problem that may affect the sustainability of the mentioned System, and for which they issued a series of recommendations. In this sense, upon confirming that the variation of requirements provided by numeral 224 and the term set by Transitory Provision VI of the draft law have as their ultimate goal to guarantee the right to retirement of judicial servants, the Chamber dismisses the alleged defect.” (Judgment 2018-5758).

In view of the foregoing and given the nonexistence of novel elements of conviction contributed by the plaintiffs on these aspects, the Tribunal holds it as proven—in the first place—that the unsustainability of the Judicial Branch Retirement and Pension Fund (*Fondo de Jubilaciones y Pensiones del Poder Judicial*) was a real fact at the moment when both the Supreme Court of Justice and the Legislative Assembly decided to initiate a process of reforming the institution's retirement system, supported by a technical assessment that operated as technical input to attack the financial problems that threatened the Fund. In the second place, the Chamber reaffirms what was stated in Judgment 2018-5758, in relation to the validity and constitutional relevance of the changes operated in the eligibility conditions, as well as in the determination of the benefits chargeable to the Fund, with the understanding that such adjustments are within the legitimate constitutional framework of action of the legislator in retirement matters, as explained in that text.

Third, it also reaffirms what was stated in judgment 2018-5758 regarding the existence of adequate technical support underpinning the text that ultimately became law of the republic, inasmuch as the final established parameters were indeed technically endorsed, as explained in detail in the aforementioned judgment 2018-5758.

XXVIII.- Judge Araya García continues writing. Notwithstanding the foregoing, the petitioners reiterate the lack of constitutional reasonableness and proportionality of the decision taken and specifically maintain that the technical report offered legislators options more favorable to the economic interests of the fund's participants and that left the legislation's purpose intact, but despite this, said option was not enacted into law, thereby violating the condition of suitability that forms part of the constitutional reasonableness standard. On this point, the Chamber notes that the Judicial Branch formalized Agreement R-CONV-005-2016 with the Institute for Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica, in order for it to conduct an actuarial study to determine the solvency of the Judicial Branch Retirement and Pension Fund. Of relevance here, clear and compelling evidence emerged from said study regarding the unsustainability of said fund's current configuration, and for that reason four proposals for new "normative frameworks" (IICE frameworks 1, 2, 3, and 4) were offered as a technical exercise to assess different possibilities for rearranging the variables affecting the operation of the pension regime in question. Of these, according to the technical study itself, numbers 1 and 2 do not meet solvency and sustainability characteristics and were included to show how the different values of the variables affected the final result. For that reason, and as the petitioners point out, the technical report recommended two technically viable possible combinations to the Assembly: IICE framework 3 and IICE framework 4, for modifying the regime; however, the Chamber does not share the interested parties' conclusion that this implied an exclusive choice for the legislator between those two alternatives: first, because neither of them aspired to be "the best possible option" but merely presented themselves as viable options for the modification; second, because it was clear that they did not exhaust the technically valid and acceptable possibilities for combining eligibility and benefit variables (as ultimately turned out to be the case, as will be discussed); and third because choosing either of the two options (IICE 3 OR IICE 4) or constructing a different one necessarily imposed on the legislators an exchange and balance among the different variables related to contributions, eligibility conditions, and benefits to be received. Thus, for example, on the same shared base of general eligibility requirements (65 years of age and 35 years of service); of the method for calculating the reference salary (average of the last 10 years worked); of the existence of a maximum retirement payment cap of 10 times the base salary of the Judicial Branch, and of a solidarity contribution for those receiving high retirement payments, IICE framework 3 proposed, for an ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a worker contribution (contributions from active workers and retirees) that was lower (in the range of 11%), while IICE framework 4 proposed providing a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution (in the range of 15%). Faced with this state of affairs, the option adopted by the Legislative Assembly is not arbitrary, as it consisted of constructing—with the technical elements provided—an intermediate proposal between the originally recommended IICE frameworks 3 and 4. That is, on the same common base of requirements of the cited frameworks, regarding age and service conditions; the cap on the retirement amount and the establishment of a solidarity contribution for retirement payments above the latter, the Assembly defined, for ordinary old-age retirement, a retirement payment of 82% of the reference salary (9.5 percentage points higher than the 72.5% proposed in IICE framework 3, but 3 percentage points lower than the 85% established in IICE framework 4). Similarly, the worker contribution percentage was set at 13% (that is, 2 percentage points more than the 11% in IICE framework 3, but 2 percentage points less than the 15% established in IICE framework 4). It should be noted that similar considerations can be made regarding cases of early retirement and disability pensions. However—and the arguments of several of the appellants seem to focus on this—the Legislative Assembly changed the formula for calculating the reference salary, setting it at the average of the last 240 salaries (20 years worked) compared to the average of the last 120 salaries (10 years) used in IICE frameworks 3 and 4; said change implied, according to the technical authority itself, a 4.8% decrease in the average salary that would serve as a reference for setting the retirement payment.

With that picture, it must then be determined whether such set of actions by the Assembly falls within the realm of the unreasonable for being unsuitable, and the conclusion of the majority of the Court is that the alleged defect is non-existent, because it was precisely an intermediate choice between the two recommended frameworks, a choice for which it has not been demonstrated that it implied a substantial and relevant worsening of the conditions of the fund's participants compared to those offered in IICE frameworks 3 or 4, this is because, as explained, what happened was an exchange of some advantages for others, always within the limits established in the frameworks proposed by the technical entity, and without there being in this case file precise and reliable data to affirm that—valuing all conditions—there was a technical option available to the legislator that would generate the same sustainability guarantees sought for the fund, while simultaneously offering clearly and compellingly higher levels of protection for the fundamental rights at stake. Added to this is the fact that, precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in its judgment, proves to be the one best suited to the pursued state purpose. That is its task as representatives of the people, and this Chamber must not substitute such competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund. Finally, it bears repeating that the normative proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which pointed out the technical propriety of that design finally adopted through report IICE-186-2017, which appears at folios 2942 and following of the legislative file, as explained in judgment 18-5758 of this Chamber, cited supra.

As indicated in Considerando VI of this judgment, the Institute for Economic Sciences Research (IICE), in the cited official letter IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. It particularly points out, regarding the project as reported out by majority, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution of 50%, the worker contribution with a differentiated scale, and the early retirement age with differences by gender, act in favor of the fund's actuarial solvency. Meanwhile, in the case of the minority report (folios 2945 ff. same volume) which was in favor of:

Using a lower reference salary, calculated on the average of the last 10 years adjusted by the CPI. On this point, it is indicated that this calculation method is less favorable for the fund's actuarial solvency, and that its effect must be analyzed in conjunction with other characteristics and parameters such as age for ordinary or service retirement, worker contribution, solidarity contribution, and transitional provision.

85% of the reference salary with a worker contribution of 11%. Regarding this, it notes that the 11% worker contribution should be associated with a retirement or pension that does not exceed 72.5% of the reference salary calculated with the last 120 salaries adjusted by the CPI in order to maintain actuarial solvency.

An age of 62 years for men and 60 for women is proposed, and no minimum age is established for early or service retirement. On this, it is noted that, in this scenario, even with a 15% contribution on salaries, retirements, and pensions, the fund is insolvent if a benefit of 85% of the reference salary is maintained. It adds that "the analyses conducted by IICE reveal that the proposal arising from the Minority Report does not pass a rigorous actuarial solvency test." In particular, it is stated:

" i. If the worker contribution is maintained at 11% and under the other conditions of the Minority Report, then the actuarial deficit would be greater than 3 million million colones, and the actuarial insolvency would be greater than 30% of the promises.

ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Report, then the actuarial deficit would be greater than 1.7 million million colones, while the actuarial insolvency would be greater than 17% of the promises.

Solidarity contribution of 20% of the excess over the maximum cap defined for retirements and pensions, which is set at 10 base salaries. This percentage may be increased to 50% "if so recommended by an actuarial study and approved by the Fund's Administrative Board." Regarding this proposal, IICE points out that by reducing the contribution to 20%, part of the equalizing effect of said contribution is lost.

Transitorio V. The Transitorio V proposed by the Minority Report extends the benefits of the current law for an additional 10 years beyond the 18 months that are recognized as a vested right; although the benefit is set at 100% of the reference salary of 120 salaries adjusted by the CPI, the transitorio does not contemplate graduality, so its effect on solvency approximates that of the transitorio in the Full Court's project, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less graduality, it is less favorable relative to Transitorio IV of the Majority Report regarding its incidence on the fund's actuarial solvency.

Employer contribution. It is proposed that the employer contribution of the Judicial Branch (currently 14.36% of the salaries and wages of members) "shall be adjusted proportionally according to the increases that the Administrative Board agrees upon as the contribution of judicial servants…." "The IICE team considers the preceding clause entirely inadvisable." "The position is that the guarantee of solvency should not rest on the state contribution and thereby avoid further deterioration of the country's already delicate fiscal situation." Credit operations: It was proposed to authorize the Administrative Board so that, with the Fund's income, credit operations may be carried out directly or through a financial institution. On this topic, the IICE team stated: "…the eventual participation of the fund in credit operations must be analyzed with extreme care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which entail expenses and also risks that must be adequately assessed." After these observations and the legislative discussion, modifications were made to the bill, in most cases, to adapt them to the opinion issued by IICE, others to incorporate positions given during the legislative discussion.

The petitioners claim that there cannot be regressive measures in economic, social, and cultural rights, within which pension systems would fall. However, as the Committee on Social Rights of the Council of Europe and other Constitutional Courts such as the Colombian one have indicated, it is possible to adopt regressive measures in the area of Economic, Social, and Cultural Rights (ESCR), when they pursue a legitimate and relevant purpose, such as the improvement of another right or the general level of service coverage that guarantees their effectiveness, or serve to prevent more burdensome measures and are technically supported. Thus, the constitutional conformity of measures cutting or modifying pension conditions requires that, prior to the determination and as an unavoidable part of its justification, there must be technical support regarding the effects of the measures, and the affected parties must have been heard because it concerns income they are currently receiving, as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.

According to Inter-American doctrine and Jurisprudence, in cases of regressivity of ESCR, it is necessary to verify the legitimacy of the purpose the norm seeks to achieve, whether the restriction of rights is "suitable" or "adequate," subsequently whether it is "necessary" or "indispensable," and, finally, whether it is "proportionate" in the strict sense or "weighted." The purpose the norm seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important purpose. The norm in question "(…) cannot have just any purpose, but must be oriented towards protecting values that have express constitutional support, whether because the Charter considers them objective values of the legal order (…). This means that these measures must be not only admissible but must seek the realization of constitutionally important objectives." Likewise, it must be verified whether the means provided in the norm to achieve the pursued purpose are adequate or not to effectively achieve said purpose or, in other words, "(…) the protective effect of the measure in relation to the interest or value to be favored must appear clearly demonstrated." There must not be other means to achieve the pursued purpose with the same effectiveness that are less onerous in terms of 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 purpose and sacrifices to a lesser extent the constitutional principles affected by the use of those means." What is sought in this step is to verify that the reduction or deterioration in the legal patrimony of individuals, that is, the impact on constitutional principles and rights, is not greater than the benefit that such impact 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 damage produced on the legal patrimony of citizens is greater than the constitutional benefit that the norm is capable of achieving, then it is disproportionate (…)." The Inter-American Court has also held that in economic matters, and more specifically in matters related to budgetary issues and resource appropriation, the legislator has broad freedom of configuration, for which reason, in these cases, any proportionality judgments made must have a light intensity, which is precisely the category of rights under analysis.

As is proven from the legislative file, the Judicial Branch's pension system had an actuarial deficit of more than 5 thousand million million at the time of the legislative discussion, which endangered the patrimony of all collective and passive members comprising the pension regime of the Employees and Officials of the Judicial Branch and public finances, since the State would have to budgetarily assume that deficit at a precarious moment for public finances. That is, there was not only a legitimate need to intervene, but a legal obligation to protect the balance of the fund, on which thousands of people and families depend, as well as the adequate safeguarding of public finances.

By way of example, what was stated by Dr. Max Soto Jiménez of the Economic Research Institute of the University of Costa Rica (folio 1321) and part of his team, he informed the Commission that among the findings, the Institute for Economic Sciences Research of the University of Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of accumulated reserves and is 36% of the present value of the regime's entire liability, and that the substitute text being discussed in the Commission is insufficient to guarantee the sustainability of the Judicial Branch's pension regime. (see folio 1352 volume 7 legislative file).

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 seriousness of the fund's situation and the need to take measures:

"In reality, it is evident that the fund at this moment is insolvent… If we continue as things are at this moment, what will happen is that the people who retire in the coming years will eat up the fund's resources of future generations, and see how curious, since we are all so long-lived, those who will finance them when they are ninety, when they are ninety, ninety-five years old will also eat up the funds; someone will have to come and tell them, look, you know what, your pension will no longer be feasible, similar to what happened to some members of private pension funds in Chile." This situation was recognized not only by the actuarial report from the University of Costa Rica, but years before by the cited Melinsky report, and by the Judicial Branch's own authorities during the appearances, as well as the Judicial Branch's own unions that participated during the legislative process and also formed part of the Judicial Branch's technical teams that participated in the preparation of the 6 products of IICE and endorsed the studies' recommendations, now challenged in this action.

Indeed, as indicated in Considerando VI of this judgment, in Agreement R-CONV-005-2016 signed between the Judicial Branch and the University of Costa Rica, it is recorded that the unions or labor unions of the Judicial Branch would have a representative on the Executive Team (folio 689 and 1154). In an appearance before the Commission, Licenciado Hernández Solano stated:

"For the first time in an actuarial study, representation is given to the workers, on this occasion with the UCR study, for the first time.

There is a technical committee within the Judicial Branch and a technical committee within the UCR; they are the ones who analyze all the parts of the five phases that the UCR-Judicial Branch agreement has. The Executive Committee within the Judicial Branch is the one that endorses each phase, tests it, makes consultations with the Technical Committee, and at the end of the day we give it approval." (emphasis not in original) "On the institution's part, there is an executive team… The Head of the Financial Accounting Department of the unions is part of this technical team. Why did the institution make that decision? Well, because experience had shown us that in previous processes, the unions' challenges to the study came at the end of the study, and then we entered into an internal conflict that was not healthy. In this way, we considered it important to incorporate the union representative as part of this executive team, and they participate actively and review the products, as part of the rest of the team that is formed." (folio 1325 volume 6 of the legislative file) There, the conditions of each product were agreed upon, and the agreement was communicated to the Special Legislative Commission tasked with reviewing and reporting on the Bill "Law for the Integral Reform of the Various Pension Regimes and Related Regulations, legislative file 19, 222" (folio 775 folio 4 legislative file).

"In the process, observations were made; I even want to tell you that the Judicial Audit also participated in this review process, and there were observations from Mr. Arnoldo, at the time the union representative, from the Audit; they were forwarded to IICE, they gave us a response, in some cases they corrected the products because this process occurs in a preliminary version for discussion or assessment, and then, satisfied with that correction, approval and approval were given" (folio 2335 volume 10 legislative file) (emphasis not in original) At folios 843 of the legislative file, the prior actuarial study by Melinsky, Pellegrinelli y Asociados S.A. is provided, which at folio 939, among its recommendations, points out that by 2026 a critical year is foreseen with a significant actuarial deficit of 50% of the constitutive capitals of the benefits in course. It points out that "substantive and effective measures are required to reduce the actuarial deficit and substantively postpone the critical year." It adds that in order to take adjustment measures, it must be borne in mind that it is a pension regime in progress where the following concepts must be made compatible:

Benefits in course Service time provided by active servants Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, required equilibrium average premium) Legal Contributive capacity of the members Budgetary capacities of the Judicial Branch Budgetary capacities of the Executive Branch It adds: "any legal analysis must take into account that the adjustments indicated are necessary in order to improve the actuarial deficit situation and critical year, which implies an Institutional Risk that endangers the patrimony of all collective and passive members comprising the pension regime of the Employees and Officials of the Judicial Branch." (emphasis not in original) "That is, the basic legal element to consider is that the individual rights recognized by current law must be considered expectant rights subject to the collective right regarding the feasibility of the benefits to the mass of members, not only as to their incidence within the scope of the Judicial Branch but also for their potential effect on the National Budget." In the appearance of the Executive Director of the Judicial Branch (volume 1322 ff. volume 6 of the legislative file), she points out that since the last Melinsky actuarial study, the actuarial deficit situation went from 2.48 million million "to a scenario around 5 thousand million million." In response to the question from Deputy Piszk Feinzilber: "Would I understand correctly, if I interpret that the situation is worse than we had imagined?", the Executive Director's response is: "Yes. Four years have passed from 2012 to now. No decisions have been taken, and the situation has worsened." (folios 1338 and 1339 volume 6 of the legislative file).

Deputy Piszk Feinzilber adds:

"What I want is for it to be very clear here is that our concern is based neither on a whim … but on the fact that it is very clear that as long as no decisions are taken, the situation will continue worsening." "I know, and we had even committed to waiting until there was a complete actuarial study to take decisions of a, I don't know if the correct word is numerical or not, but regarding contributions, but well, I believe it is very clear that there is a concern on our part, that the Court must be aware of this, that here, well, it is all Costa Ricans who will have to pay if this thing continues to drag on, and from that standpoint, we evidently as legislators, who have to make a decision…" (folio 1343 same volume).

In the same vein, Deputy Guerrero stated: "To reiterate what Álvaro Ramos said. This is not an issue against the working class, it is in favor of the working class. This substitute text improves but does not sustain the regime's health. A regime that will end up in the national budget of the Republic, if one wants health, a regime that moreover does not guarantee the pension expectation of the people who are contributing today or will have to start contributing double; the same as the employer and the same as the State. That is, it goes to the central budget…" (folio 1754 volume 8 legislative file).

On the other hand, as indicated supra, the majority of the Chamber considers that, given the proven public necessity and legitimacy of intervention by the authorities, the means provided in the challenged norms to achieve the pursued purpose are adequate to effectively achieve said purpose. As indicated supra, the Institute for Economic Sciences Research (IICE), in the cited official letter IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. As explained, the legislator adopted an intermediate choice between the two recommended frameworks, a choice for which it has not been demonstrated that it implied a substantial and relevant worsening of the conditions of the fund's participants compared to those offered in IICE frameworks 3 or 4, this is because, as explained, what happened was an exchange of some advantages for others, always within the limits established in the frameworks proposed by the technical entity, and without there being in this case file other technical studies or expert reports of the same level or equivalent that with precise and reliable data allow affirming that—valuing all conditions and not only the chosen ones—there was a technical option available to the legislator that would generate the same sustainability guarantees sought for the fund, while simultaneously offering clearly and compellingly higher levels of protection for the fundamental rights at stake. Precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in its judgment, proves to be the one best suited to the pursued state purpose. That is its task as representatives of the people, and this Chamber must not substitute such competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund. As the Inter-American Court has rightly pointed out, in economic and budgetary matters or those of resource appropriation, the legislator has broad freedom of configuration, for which reason, in these cases, any proportionality judgments made must have a light intensity, which is precisely the category of rights under analysis, where a balance must be sought between individual and collective rights to overcome the danger that existed of affecting the patrimony of all collective members comprising the pension regime of the Employees and Officials of the Judicial Branch, putting at risk the sustainability of current and future beneficiaries and potentially the State's finances, which had to assume present and future pensioners and retirees if the regime could not be balanced.

The petitioners provide a series of examples of hypothetical impacts on how disproportionate the measures are for various sectors, but they do not provide an actuarial study that allows refuting the existing one in the legislative file, which does take into account all variables at play (not just the selected ones), which must be valued integrally. Likewise, with the actions filed, they seek to return to the scenario prior to the reform, technically discarded expressly by IICE in its various studies and which does have the capacity to affect or endanger the sustainability of the Judicial Branch's pension regime as was proven by the Melinsky study and that of the University of Costa Rica. Furthermore, the evidence for better resolution requested by this Chamber from the Administrative Board of the Judicial Branch Pension Fund (see judicial file) demonstrates that the measures adopted by the legislator have been suitable for restoring solvency to the Fund, which has had a substantial recovery in the years the challenged norms have been in force.

In conclusion, in the view of the majority of this Chamber, the Legislative Assembly did not violate the constitutional principles of reasonableness and proportionality by taking elements from the IICE3 and IICE4 regulatory frameworks and from the appearances of authorities from SUPEN and the Ministry of Finance, and with them, constructing a regulatory framework to adjust all the needs at play and fulfill the purpose of remedying the recognized problems suffered by the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial), thus avoiding more serious harm to the interests of the members and the public interest, so that on this point the action must be dismissed. Even at the time of issuing this judgment, it has been verified that the regime's actuarial deficit has been significantly reduced, which demonstrates that the measures adopted were necessary, proportional, and suitable.” Subsequently, in that same vote, the following was indicated:

“XXXII.- Drafted by Magistrate Araya García. Regarding the impact on the fundamental right to retirement derived from the changes in the eligibility conditions in Chapter I 'Benefits' (Prestaciones) of Law 9544 for Judicial Branch workers to retire. On this point, the plaintiffs argue that the fundamental right to retirement is being rendered nugatory by having increased the retirement age, especially by now requiring a minimum of 20 years of service in the Judicial Branch to be able to retire under the Judicial Branch regime, since in many cases judicial servants would be forced to work beyond the age of 65 to become eligible for a retirement. Additionally, they explain that, with the reform, it is not only that the service time in the Judicial Branch has been extended by 5 years—from 30 to 35 years—but that particular situations are being generated that they consider harmful to fundamental rights: a) for example, a person who began working for the Judicial Branch at age 20, in order to retire in accordance with the requirements established in Law 9544, must now work 45 years, far exceeding the 30 years of contributions indicated by ILO Conventions 102 and 128; b) by now requiring at least 20 years of service in the Judicial Branch but also fulfilling 35 total years of working in the public sector, any person who enters employment with the Judicial Branch after age 46 could only receive a pension after surpassing age 65; c) in the case of a Judicial Branch worker who died before completing those 20 years of minimum service in that institution, the beneficiaries could not opt for an orphan's or survivor's pension because that requirement is not met; d) new rules for obtaining retirement cannot be imposed equally on a person who is 5 or 10 years from retirement as on a person who is starting work or is 30 years from retirement at the time a reform enters into force; e) the law prior to Law 9544 established that upon completing 30 years of service—which implies an amount exceeding the 300 contributions required by the IVM regime of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social)—the person could request early retirement regardless of age, for which 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 fulfill 5 more years of service but also reach age 65 to obtain a full retirement—now much reduced—since early retirement seems not to be an option because it considerably reduces income; e) in the case of a Judicial Police officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker—just to give some examples—who could previously receive a pension upon reaching age 55 after 30 years of service, they must now be obliged to work ten more years to reach age 65, despite the fact that in their daily work they have an enormous emotional burden, which could negatively affect—in an extremely negative way—the new landscape to which they are being subjected abruptly by having to work 10 more years. The plaintiffs argue that all these changes, and others derived from the application of Law 9544, were made without technical-scientific studies, not of an accounting type like the IICE products, but of a demographic and sociological type that allow determining, with certainty, the possibility that Judges of all matters processed by the Judicial Branch, as well as Judicial Police officers, administrative personnel, Prosecutors, Public Defenders, among others, can continue working—having to extend the years of service to retire due to the reform—without affecting the public service, but above all without generating damage to their physical and mental health. Here they highlight that many of these judicial servants, being very close to obtaining their retirement, already had a retirement plan for which they had been preparing for several years and now, with the reform, must modify it, with those plaintiffs considering that this harms the expectation of finishing a judicial career. They add that, in addition to the above, for the cases of people who will have to work beyond age 65 in order to obtain the right to retirement, what is indicated in Conventions of the International Labour Organization is being breached, which state that the retirement age cannot exceed 65 years, as provided by ILO Convention No. 102 in its article 26, paragraph 2, as well as ILO Convention 128 in its article 15, which, in relevant part, states:

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

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

XXXIII.Drafted by Magistrate Araya García. Regarding this topic, there is no specific criterion issued by the Attorney General's Office, which in its report reiterates the power of the legislator to make the necessary adjustments so that the pension funds are sustainable and can thus provide the promised benefits to all their participants. The same occurs with the Legislative Assembly, which considers that the decision taken was based on the technical studies provided. The Supreme Court explained that on this topic it refers to what was indicated by the Legislative Assembly within the legislative record, in the sense that all these changes represent a disincentive for the entry of valuable professionals into the Judicial Branch who, considering the economic result of a future assessment, would prefer to pursue their professional career in another labor field, as the judicial, prosecutorial, Public Defense career, and that of personnel in general is affected. In addition to this, it pronounced itself indicating that the renewal of personnel who manage to remain in the Judicial Branch will be affected, such that there will be elderly officials who will remain working only out of necessity and the decrease their income would suffer if they retired; the judicial population will be at a crossroads because they have the desire to opt for retirement and the motivation to retire and rest, but they are placed in a condition in which they must assess their economic situation. It further argued that all of this reduces the Judicial Branch's competitiveness in the labor market, and this will affect the quality of the Administration of Justice. It also considered that the regulation of the Judicial Branch Retirement and Pension Fund should not be assessed only from an economic perspective, as it involves inalienable fundamental rights associated with a working person who, during their years of service, has contributed to a regime with the expectation of having a dignified retirement that would allow them to meet their needs and enjoy quality of life in their retirement years, but now, the imposition derived from the new law will affect vulnerable population groups despite the fact that it is a collective that requires greater protection from the State.

XXXIV.Drafted by Magistrate Araya García. It is stated that the reform has imposed on the present and future participants of the fund a set of eligibility conditions that seriously hinder their possibilities of enjoying an adequate retirement when they cease their duties as judges, police officers, prosecutors, defenders, and judicial workers in general. In this regard, the Court notes that the allegations of harm to the right to an appropriate and just retirement are constructed by making a comparison between the previous system (which the plaintiffs seem to endorse) and the system introduced with Law 9544. Therefore, it is worth recalling what the changes were—in terms of eligibility—that the regime suffered with the regulatory change, starting with the ordinary retirement whose age was increased by 3 years and the years of service which increased by 5 years; also modified was the quantity of those years that must have been worked for the Judicial Branch, which went from being “the last 5 years” (repealed article 231) to a minimum of 20 years worked within the Judicial Branch. Regarding early retirement, the changes are summarized as follows: early retirement with proportional payment based on fulfillment of years of service was changed, going from 30 years of service to 35, provided that a minimum retirement age is met, set in the case of men at 62 years and in the case of women at 60 years; likewise, early retirement with proportional payment based on fulfillment of age was modified, going from 60 years of age and at least 10 years of service (repealed article 225) to 65, with a requirement of at least 20 years of service in the Judicial Branch according to the currently effective text. Additionally, the amount of the retirement payment was readjusted 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 such variations, the plaintiffs elaborate a series of examples of situations they consider unjust and contrary to international regulations, but the truth is that the examples presented are not sufficient to make a decision of annulment of the norm as requested, because it turns out that no real and current data by profile of entry ages to the Judicial Branch is provided to verify, for example, what the behavior of the fund participants has been regarding the use of the early retirement figure, or whether the case of the person who enters the service of the Judicial Branch at age 46 repeats with sufficient frequency to conclude that the system, as a whole, becomes openly unjust by requiring more years of service specifically in the Judicial Branch; likewise, nor in relation to the years of service are technical data provided capable of refuting the actuarial report that would suggest that a large number of people would have to stay well beyond age 65 to fulfill the 20 years of effective service within the Judicial Branch. Nor is it valid to compare the supposed expectations of achieving an early pension under the previous law with the conditions for acquiring ordinary retirement in the new regime, because that is incongruent as they are qualitatively different cases. It cannot be lost sight of that the logic that currently sustains pension regimes such as the one being analyzed aims to achieve—over time—sufficient economic conditions to provide protection to participants when their work capacity is affected by the effects of old age or another contingency; and that is the reason why state authorities must set parameters that ensure sufficient utilization of labor and productive potential and the assurance of dignified conditions for when that potential declines due to age. Thus, for the Court, the centrality of this issue is that the modifications for eligibility in the different modalities respond to a need for compromise between the particular conditions of the work carried out by the Judicial Branch and the need for the pension system for the protection of its servants when they reach old age to be financially sustainable as a whole, over time.

As stated, the Chamber shares the thesis that the creation of a separate retirement regime for the Judicial Branch has been a key piece for the relevant role that this body has fulfilled within the social and democratic Rule of Law in our country; however, this cannot serve to petrify a situation that, as has been demonstrated, financially threatened the stability of the Judicial Branch fund, the rights of its beneficiaries, and the Costa Rican State itself, which has provided a good part of the funds to build said regime. In this way, faced with the economic emergency that imposed a modification, the changes made represented—for the generality of participants who have pursued a judicial career and aspire to ordinary retirement—a delay of 3 years with respect to the requirements of the previous law, and a delay of 5 years in the vast majority of other cases, for those aspiring to early retirement. As is clear, the design could not take into account all the possible particularities that may occur in specific cases, but as indicated, in the generality of cases the modifications of 3 and 5 years respectively are supported by technical studies, and for the generality of people, it is not an acute aggravation of their eligibility situation. It is clear that the general hypothesis proposed by the plaintiffs that judicial workers in general, and solely because they work in that institution, are subjected to a burden and wear clearly distinguishable from other groups of workers, is not supported by evidence provided in the record, nor is there demonstration that the examples offered reach such a degree of repetition that they affect the general justice of the system with such magnitude that it can be said that fundamental rights of the generality of its participants have been harmed, which does not mean that there are no groups within the generality of workers that do require special measures due to the type of work they have, but this requires specific technical studies for each group and determination of their actuarial impact on the system. The variables contained in the actuarial study that served as the basis for the challenged reform, in addition to being a comprehensive study, is a study that assesses the effects over a 100-year period of the variables analyzed. Specific examples, without projection or comprehensiveness, the Chamber estimates do not have the weight to refute technical evidence of this magnitude. To refute this evidence, an equivalent actuarial report is required.

Let us add to this that the original design that was modified by Law 9544 dates from the year 1993, that is, from a date prior to the substantive paradigm shift that occurred with the enactment of the Worker Protection Law (Ley de Protección al Trabajador) number 7983 of February 16, 2000. With this latter norm, the general pension design of the Costa Rican State for the protection of working people in their old age was rethought, and a three-pillar system was established, the first being the basic pension regime (in this case, the Judicial Branch Retirement and Pension Fund regime) financed tripartitely among the worker, the employer, and the State; a second pillar constituted by a complementary individual account pension regime financed by the worker and the employer; and finally a third pillar consisting of the worker's long-term savings plans. Thus, this complementarity freed the basic regimes from the task of delivering, by themselves, broad and complete benefits, since the needs of retirees will be met with resources from the three cited sources. For this reason, and faced with the need to review the characteristics of the basic regime applicable in the Judicial Branch to achieve its sustainability, the attempt to adapt it to the new system makes sense, so that the final sum of all pillars can be the achievement of sufficient economic benefits to achieve a basic dignified retirement and that—depending on the effort made by the interested party themselves—can be augmented to assimilate it more or less to the standard of living enjoyed during their active working life. In this way, a possible verification, in some case or small group of specific cases, of some gap or apparently unjust solution due to being incomplete, within this basic regime and its normal operation, cannot—by itself—become a reason to dismantle the entire structure without duly verifying at the same time—which the plaintiffs have not done—the impossibility of the general social security system, as a whole, to provide a solution that appropriately addresses the rights of those affected. In conclusion, what is appropriate is to declare the claim raised without merit, insofar as the changes in the eligibility conditions have not been technically demonstrated to have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age. In fact, had the reform not been made, the rights of all the beneficiaries of the Regime would be affected in a more burdensome way for them and for public finances. Likewise, returning to the conditions of the previous law, which would be the consequence of the annulment of the challenged regulations, would imply returning to the unsustainability of the regime. Neither has it been demonstrated in the record that the conditions of the Costa Rican Social Security Fund regime, which has been publicly announced to also have financial sustainability problems, is a better technical alternative than the one adopted by the legislator, since, in this aspect, no technical studies supporting that thesis have been provided.

From the reading of the partially transcribed precedent, it can be verified that this Chamber concluded, by majority—in accordance with the reasons amply developed in said vote—that the reform to the Judicial Branch retirement regime, regarding, specifically, the changes introduced in the eligibility conditions for ordinary and early retirements of judicial servants—including the requirement of a minimum of twenty years of service in the Judicial Branch to be able to qualify for early retirement—far from being arbitrary, capricious, unfounded, or discriminatory, was due to the real need to guarantee the solvency of the Judicial Branch Retirement and Pension Fund, as well as that such changes were carried out “within the legitimate constitutional framework of action of the legislator in retirement matters,” based on “adequate technical support.” It concluded—as reasoned in that vote—that such modifications in the requirements for granting ordinary and early retirements of judicial servants were constitutionally valid, as reasonable and proportional measures to guarantee the solvency and stability of the fund, in consideration of the technical criteria provided to the respective legislative record. In short:

“(...) the changes made were necessary precisely to achieve the sustainability of the special retirement and pension regime for judicial servants, whose debacle would have truly meant a serious threat to the economic stability of the administrators of justice. Equally important for dismissing the claim is the fact that the legislatively established modifications are not the result of unfounded whims of the legislators, but rather were taken based on technical criteria, with broad participation of the interested persons, and were neither untimely nor capricious, and are based on technical criteria. In this aspect, the Chamber considers that the new pension regime, as the first pillar of the broader social security framework that covers the administrators of justice similarly to other workers, ensures them a space of economic security.”

Considerations applicable to the sub lite case, insofar as no other criteria or technical studies are provided that would allow reaching a different conclusion.

IV.- In continuation of the foregoing, it must be reiterated that the plaintiffs do not provide other criteria or technical studies that would allow reaching a conclusion different from that already developed in the referenced vote no. 2021-011957. In fact, the plaintiffs' foundation and objections focus, essentially, on the application of the challenged regulations to the particular case of the official Barrantes Venegas; however, in full consonance with what was already resolved in the above-cited vote no. 2021-011957, the mere reference to the application of the challenged regulations to a specific case cannot replace the existence of technical evidence that would adequately prove that “the changes in the eligibility conditions... have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age.” Likewise, it is not appropriate that, through an unconstitutionality action, the specific or particular case of said person be resolved. It must be remembered that this Chamber has indicated that:

“(...) the object of an unconstitutionality proceeding is not to address an individual harm that the plaintiff may allege; on the contrary, its object is a general interest that the acts subject to public law and the norms that make up the legal system are in conformity with the Law of the Constitution.” (vote no. 2013-002902 of 2:30 p.m. on March 5, 2013).

V.- In the standing section of the filing brief, the plaintiff made express reference to the orphan’s pension—which is a type of survivors’ pension (pensión por sobrevivencia), provided for in article 228 of the Organic Law of the Judicial Branch—which appears to be due to a mere material error, since all the plaintiff's substantive allegations, as well as the prayer for relief made in the filing brief, focus specifically on matters relating to the early retirement of judicial servants, regulated in the cited numeral 224 bis of that same regulatory body. However, it should be noted that this Chamber also expressly pronounced itself regarding survivors’ pensions, in the above-cited vote no. 2021-011957, in the following sense:

“LXXIII. Drafted by Magistrate Hernández López. Regarding the right to a survivors’ pension. - In accordance with the International Labour Organization (ILO), Social Protection is a human right, essential for achieving sustainable development, composed of sets of basic social security guarantees, defined at the national level, that ensure protection aimed at preventing or alleviating poverty, vulnerability, and social exclusion. In turn, social security consists of the pension and economic systems that cover the risks to which certain people are subjected, mainly workers, in order to repair or, at least, mitigate the damages, losses, and misfortunes of which they may be involuntary victims or innocent (see judgment number 2007-017971 of 14 hours and 51 minutes of December 12, 2007). Of interest for this section, it is worth saying 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 deprivations that would otherwise derive from the disappearance or a sharp reduction of their income as a consequence of sickness, maternity, employment injury or occupational disease, unemployment, invalidity, old age, and death; also protection in the form of medical care and assistance to families with children” (see Introduction to Social Security. I.L.O. Geneva, 1987, p. 3). Social security is an essential instrument for creating social cohesion, it contributes to guaranteeing social peace and social integration, it is an indispensable part of the social policy of governments, and it is an important tool for preventing and alleviating poverty; correctly administered, it increases productivity by providing medical care, income security, and social services, and although it represents a cost for companies, it is also an investment in people and, at the same time, a support for them (see Social Security: A New Consensus. ILO. Geneva, 2002, p. 1 and 2). Within the group of benefits contained by social security in Costa Rica are “survivors’ pensions,” which are those that—upon fulfillment of the legally established requirements—can be granted to the family members who survive the active worker who dies, regardless of whether the cause of death is due to sickness, work-related accident, or others. In this way, the “survivors” in the context of social security refer to the worker's partner and their orphans, their protection acquiring special relevance because, precisely, when an important part of a family's support is lost due to death, it becomes indispensable to guarantee their dependents continue to have, at least, the minimum conditions necessary to survive while they manage to adapt to the new situation, and that is where social protection policies make sense, insofar as they contribute to preventing and reducing poverty and inequality, promoting social inclusion and respect for human dignity; that contribute to endowing people with a dignified and full life in the terms that article 2 of the Comprehensive Law for the Older Adult (Ley Integral para la Persona Adulta Mayor), No. 7935 of October 25, 1999, sets forth. According to doctrine, the survivors' benefits branch of social security was originally conceived within a traditional family life form, composed of husband, wife, and children, in which the married woman remained in her home attending to domestic chores and raising the children, while the person in charge of supporting the family was the husband and father. Within that context, if the man died, his widow and orphans would be deprived of their sustenance, exposed to multiple vicissitudes such as poverty, lack of minimum living conditions, impossibility of access to health and education, among others, and for that reason survivors’ pensions were devised as part of social security. Subsequently, with the incorporation of women into working life and the modification of the traditional family scheme, those survivors' benefits have become “family or dependent benefits,” which, despite still being primarily intended for the partner of the deceased worker and the orphans, are not necessarily aimed at providing them with basic sustenance, but rather come to collaborate with the economic contribution that the deceased insured person generated in their family nucleus, so that the family can continue maintaining a certain standard of living in accordance with what they usually enjoyed; a contribution that is of great relevance especially when taking into account that there could be small children or persons with disabilities, whose economic needs tend to be of great magnitude. In Costa Rica, the legislation that regulates this matter has been based on the principles set forth in Conventions 102 and 128 as well as in Recommendation 131, both of the International Labour Organization, without the Judicial Branch having been an exception, since its Organic Law has included that type of protection. In that sense, and before the reform by Law 9544 challenged here was approved, in the event of the death of an active servant of the Judicial Branch, the former article 230 of the Organic Law of the Judicial Branch No. 7333 provided:

“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.

However, if due to the exercise of their duties the death of the servant occurs—regardless of the time served by them—in addition to the legally corresponding indemnities, their beneficiaries shall be entitled to a temporary and proportional pension, under the conditions that this Law provides for such cases." As is clearly evident from a reading of the rule, Law 7333 regulated the possibility that, in the event an active worker of the Judicial Branch died, but had 10 or more years of service for the institution, their relatives would be entitled to a pension regardless of the causes of the death, also establishing the possibility that, if the death occurred as a consequence of the exercise of their duties and the worker had less than 10 years of service, the beneficiary relatives would be entitled to a temporary and proportional pension, as provided by the Law for those cases. It is evident that the rule established broad social protection for the deceased's survivors, in accordance with the most basic principles established in the matter by the International Labour Organization, in terms of constituting a measure in favor of those against uncertainty and the risks of life that can result in effects on present and future well-being, since there is no doubt that a person's socioeconomic conditions potentiate inequalities, vulnerability, and poverty. It should be noted that, according to the former article 224 -of Law 7333-, to obtain retirement under regular conditions, a judicial worker had to have 30 years of service, and for this reason, the rule transcribed supra provided that officials and employees who had served less than ten years would not be entitled to retirement; however, the legislator, with adequate social foresight, and anticipating the exceptional life situations that may occur, understood the need to protect relatives and provided that, upon exceeding 10 years of service, in case of the death of the active male or female worker, their survivors would indeed be entitled to a proportional survivor's pension. It is indisputable that this provision is of great relevance in a Democratic and Social State of Law, and furthermore, death is an undeniable and integral part of the life cycle, so it can occur at any time; however, it takes on special relevance in the case of the Judicial Branch because many of its employees, by reason of their duties, are subjected to serious risks that can bring it about, and, for this reason, that legislator also provided in that rule that if the servant's death occurred due to the exercise of their duties, in that case, the worker's time of service would not matter, for even if it were less than 10 years, their beneficiaries were entitled to a temporary and proportional pension, within the conditions provided by the Law for those cases. It is more than evident that the legislator not only had a broad social and fundamental rights-guaranteeing perspective, but also understood the importance of social protection as a mechanism to shield people against eventual risks in the life cycle, as a determining aspect in society to promote productivity, decent work, the structural transformation of national economies in order to reduce poverty, social exclusion, inequality, strengthen social cohesion, and political stability.

Notwithstanding the foregoing, with the reform introduced to the Ley Orgánica del Poder Judicial through Law 9544 challenged here, the situation changes radically, as argued in unconstitutionality action No. 18-009275-0007-CO, in which the plaintiffs allege that it "renders nugatory that right for future beneficiaries such as those who acquire the right to a survivor's pension (spouses, partners, dependent parents) or to an orphan's pension, invalid or incapable persons who depend on the deceased person, since these, if the servant does not complete 20 years of service at the time of death, regardless of whether they had served 30, 35, or 40 years in another public sector institution, would be left unprotected, uncovered in said contingency," deeming that "the foregoing is inconceivable within the Social State of Law" and citing as an example the case of "a person who enters work in the Judicial Branch at 50 years of age, this person must wait until 70 years of age to be able to retire and, even worse, if they die before completing those years, their survivors would not receive any pension," also indicating that the most serious aspect of this radical change of conditions for survivors is that it has been done without having technical criteria to justify it and without offering much analysis on the part of the Legislature. To understand the scope of the plaintiffs' allegation, one must observe what numerals 228 and 229 of Law 9544 -challenged here- provide, which are the ones regulating matters related to the survivor's pension:

"Article 228- The following are entitled to a survivor's pension:

• a)The surviving spouse of the deceased servant or retiree who is economically dependent on the decedent at the time of death.
• b)The partner economically dependent at the time of the retiree's death, who has cohabited for at least three years prior to the death and both had legal capacity to marry, according to civil legislation.
• c)The divorced or judicially or de facto separated spouse, former partner, who on the date of death is receiving alimony, declared by a final judicial judgment or who demonstrates that they received economic support from the decedent.

The following are entitled to an orphan's pension:

• 1)Children who, at the time of the decedent's death, were economically dependent on them, according to the following rules:

1.1) Single minors.

1.2) Over eighteen years of age, but under twenty-five years of age, who are pursuing studies recognized by the Ministerio de Educación Pública (MEP), the Instituto Nacional de Aprendizaje (INA), or other institutions at the discretion of the Administrative Board.

1.3) Adults who, prior to the decedent's death, are invalid and incapable of performing remunerated work.

In the absence of successors by widowhood, common-law marriage, or orphanhood, the parents are entitled to a pension, if at the time of the decedent's death they were economically dependent on them.

"Article 229- The amount of pension benefits due to survival in cases of widowhood, common-law marriage, orphanhood, or ascendancy shall be proportional to the amount of pension the pensioner was receiving at the time of death, and as a whole this amount shall not be greater than eighty percent (80%) of what corresponded to the decedent. In case of the death of an active servant, the amount of the pension for widowhood, common-law marriage, orphanhood, or ascendancy shall be proportional to the amount of pension the deceased would have received in accordance with the fulfillment of requirements at the time of the contingency, and as a whole this amount shall not be greater than eighty percent (80%) of what would have corresponded to the decedent.

The proportions for the benefits for widowhood, common-law marriage, orphanhood, and ascendancy shall be those stipulated in the regulations of the Regime.

Every survivor's pension shall expire upon the death of the beneficiary, with the exception of what is provided in this article for the pension corresponding to children.

Allocations that expire shall proportionally increase those of the other beneficiaries who remain in effect, at their request and provided they require them, after a prior social work study and approval by the Junta Administrativa del Fondo.

(Thus amended by article 1° of law N° 9544 of April 24, 2018) From the reading of both numerals, it is observed that the plaintiffs' assertion makes sense when considering the case of an active male or female servant of the Judicial Branch who dies and who constituted a support for the persons who survive them, for it is noted that, under the rule established in the cited numeral 229 -currently in force-, in the event of the death of an active servant, the amount of the pension for those who become beneficiaries "shall be proportional to the amount of pension the deceased would have received in accordance with the fulfillment of requirements at the time of the contingency, and as a whole this amount shall not be greater than eighty percent (80%) of what would have corresponded to the decedent." The foregoing means that, as the plaintiffs mention, only those survivors of a servant who had 20 or more years of service in the Judicial Branch will be able to be beneficiaries with a survivor's pension, this because the rule requires that the deceased was in the position of fulfilling the requirements established in the prior article 224, or what is the same, that they had 20 or more years of service in the Judicial Branch; a rule that, moreover, does not contemplate any possibility of benefit for their survivors in the event that the death of the active working person was a consequence of the exercise of their duties in the institution. In addition to the foregoing, as the plaintiffs correctly affirm, the rule was modified to pass to this new wording without there being any technical support justifying it, and, in that sense, it suffices to review the legislative file to which this Court has had access to verify that there is no accredited technical basis in the file or in the appearances of the technicians, in relation to the survivor's pension, that justifies the difference that is occurring between the prior Law 7333 and the reform. This Chamber has been able to verify that none of the 6 Productos IICE that served as support for the legislator to issue Law 9544, contemplate any technical justification to retract social protection in this matter; a regression that is evidently contrary to the guaranteeing principles of fundamental rights that must be protected by this Constitutional Court, because despite the fact that progressiveness should prevail in this matter, in the specific case there was a regression without basis, by changing the conditions for the survivors of working persons with 10 years or more of service in the Judicial Branch, to 20 years or more of working in the institution. In addition to the foregoing, for this Chamber, such a burdensome distinction between the previous system and the current one makes the reformed rule unreasonable, therefore, lacking in a content of justice, and, in that sense, it must be remembered that this Chamber has pointed out in the past that if "the distinction established by a rule produces a situation of injustice, such a rule is not reasonable and, therefore, the content of the principle of equality enshrined in constitutional article 33 is breached" (ruling number 2001-03192 at 10 hours 10 minutes of April 25, 2001). It is deemed that the foregoing is so because, as can be observed, faced with two equal situations - the death of an active male or female worker of the Judicial Branch -, Law 9544 challenged here, gives a completely different treatment to that contained in Law 7333, this despite the fact that almost 30 years have passed between the enactment of one law and another, and the logical thought is that societies move forward in a positive and progressive manner, not the reverse. The real situation in which persons who could derive benefits under these circumstances have been placed is harmful to fundamental rights, openly contrary to the provisions of constitutional article 51, according to which the family, as the natural element and foundation of society, has the right to the protection of the State, highlighting with special relevance the case of the mother, the child, older adults, and persons with disabilities. The foregoing means that, even though the State has the obligation to adopt the measures that are necessary to guarantee that protection, and included within them is, without a doubt, the recognition of social benefits derived from active male and female workers in the Judicial Branch who had children or dependent persons who are members of that essential nucleus, the truth is that, based on article 229 of Law 9544, they are left in open helplessness if that active servant did not have 20 years or more of working for the Judicial Branch, in a clear detriment compared to the previous system that protected workers with 10 years of service, or even less, if the death derived from the exercise of their duties in the Judicial Branch, this despite the fact that the death of an active working person generally refers to very exceptional situations, which when they occur involve very few people, and that precisely for that reason, the recognition of the pension to their survivors would not imply a large-scale impact on the Fondo de Jubilaciones y Pensiones del Poder Judicial. Thus, what is appropriate is to maintain the validity of the 10 years established by article 230 of Law 7333, in such a way that the repeal of that rule, Consequently, it must be understood that the survivor's pension corresponds to the survivors of the active working person of the Judicial Branch who, at the time of the contingency, had 10 years or more of working in the Judicial Branch, and, in the event that the death occurred due to the exercise of their duties, whatever the length of service had been, the beneficiaries shall be entitled to a temporary and proportional pension in accordance with what the law provides in addition to the indemnities established by the regulations governing the matter, this because, as already indicated, the amount of the pension seeks to replace the support that the deceased person provided to the persons who depended on them, so that they are not left in a situation of indigence or helplessness." So, finally, in the operative part, it was resolved that:

"Fourth: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the requirement of 20 years of service required for the purpose of obtaining the survivor's pension derived from article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, according to article 230 of Law 7333 of May 5, 1993, in the version prior to the reform." It is clarified, again, that this was properly resolved with respect to the survivor's pensions provided for in articles 228 and 229 of the Ley Orgánica del Poder Judicial, but not with respect to the early retirements regulated in the cited ordinal 224 bis, which properly constitutes the object of this unconstitutionality action and which corresponds to a different normative scenario.

VI.- IN CONCLUSION. As a corollary of the foregoing, it is appropriate to reject the action filed against article 224 bis of the Ley Orgánica del Poder Judicial, amended by Law No. 9544 of April 24, 2018, on the merits, as so ordered.

VII.- NOTE FROM MAGISTRATE GARRO VARGAS: I note that this matter was examined by my person and I considered that there is no reason for my recusal. The foregoing on the basis that my brother Fabrizio Garro Vargas, identification card number 1-775-688, Senior Labor Judge, has more than 20 years of working for the Judicial Branch. Therefore, the eventual declaration of unconstitutionality of the rule in no way harms or benefits him.

VIII.- DOCUMENTATION PROVIDED TO THE FILE. The parties are warned that, if they have provided any paper document, as well as objects or evidence contained in any additional device of an electronic, informatic, magnetic, optical, telematic nature or produced by new technologies, these must be removed from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not removed within this period will be destroyed, according to the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the 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 in the agreement approved by the Consejo Superior del Poder Judicial, in session N° 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is rejected on the merits. Magistrate Garro Vargas records a note. Magistrates Salazar Alvarado, Garita Navarro, and Jara Velásquez dissent in relation to the violation of article 167 of the Constitución Política and declare that the challenged law presents the essential procedural defect consisting of the lack of consultation with the Judicial Branch of the text approved by the Parliament by absolute and not qualified majority, which affects it in its entirety (article 167, of the Constitución Política), because it affects its organization, structure, functioning, and independence, reason for which they deem it unnecessary to analyze other procedural and substantive defects raised by the plaintiffs; except for those in which taking a position is required for there to be a vote of full conformity (article 60.2, Código Procesal Civil).

Fernando Castillo V.

Paul Rueda L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

José Roberto Garita N.

Rosibel Jara V.

DISSENTING VOTE OF MAGISTRATES SALAZAR ALVARADO, GARITA NAVARRO, AND JARA VELÁSQUEZ, WITH THE WRITING OF THE FIRST, IN RELATION TO THE VIOLATION OF ARTICLE 167 CONSTITUTIONAL. The undersigned magistrates dissent in relation to this point, clarifying that in the case of the last two, although we did not sign the original writing of the dissenting vote, we now make our own the reasons that were set forth in Ruling N° 2021-11957 at 17:00 hours of May 25, 2021, so that, jointly, we reiterate it as follows:

"The undersigned magistrates dissent, and we consider that it is necessary to address the problem of the accumulated actions from the perspective that a gross, manifest, and evident violation of article 167, of the Constitución Política, was incurred in the legislative procedure, and that, due to its relevance, demands the unconstitutionality of the entirety of Law N° 9544 called "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas".

It must begin by pointing out that the Comisión Especial in charge of processing legislative file N° 19,922, made the respective bills being approved known to the Corte Plena, to comply with the provisions of the cited numeral 167. The consultations with the Corte Suprema de Justicia occurred on three occasions; namely:

• a)The bill was consulted with the Corte Suprema de Justicia and the report rendered was heard in the session of the Corte Plena N° 29-16 of September 26, 2016, article XVIII, communicating to the Asamblea Legislativa, by official letter SP-288-16 of September 28, 2016, with the express indication that the consulted bill affects the organization and functioning of the Poder Judicial.
• b)On a second occasion, the Corte Plena in session N° 9-17 of April 24, 2017, article XXIX, heard the consultation posed to it and by official letter SP-118-17 of April 26, 2017, informed the Comisión Especial Legislativa that the Corte Plena had issued a negative opinion on the consulted bill, because it affects the organization and functioning of the Poder Judicial.
• c)On a third occasion, the Corte Plena in session N° 26-17 of August 7, 2017, article XXX, heard the consultation posed by the Comisión Especial on the Dictamen Afirmativo de Mayoría, and a negative opinion was issued indicating that the bill processed under file N° 19,922 affects the organization, structure, and functioning of the Poder Judicial; a decision communicated to the Asamblea Legislativa by official letter SP-253-17 of August 10, 2017.

In each and every one of the consultations formulated, the Corte Plena established that these were bills that affected its organization and functioning, so that, based on that negative opinion, in accordance with article 167, of the Constitución Política, and the principles of coordination, mutual respect, and equality, which inform the relations between constitutional organs, between two powers of the State [system of checks and balances], the law had to be approved with a qualified majority. Furthermore, it must be mentioned that the last of the projects, which was the Dictamen Afirmativo de Mayoría accepted by the Comisión Especial on July 27, 2017, was not the final one. On the contrary, the text of the project was subject to substantive motions and reiteration accepted by the Comisión Especial, on which the Plenario Legislativo subsequently voted in Primer Debate, in the extraordinary session N° 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative file). Thus, the text voted by the Plenario Legislativo in Primer Debate was the modified text retaining some of the points on which the Corte Plena had issued its negative opinion, among them, the installation of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial to the detriment of the competencies of the Consejo Superior del Poder Judicial. But in addition, it must be pointed out that it contained other substantial changes to the bill, among them those that worsened some conditions for judicial officials, for the enjoyment and exercise of the right to a pension and retirement, a situation on which the Corte Plena had to rule -regarding article 167, Constitucional- due to its relevance in the Law of the Constitution. These modifications were voted in the Primer Debate, and were approved in the Segundo Debate. The foregoing, without having carried out the institutional consultation on the project approved in Committee and that was subsequently voted on by the Plenario in the extraordinary session N° 14 of October 30, 2017.

Although the Asamblea Legislativa considered it unnecessary to consult with the Poder Judicial on the final text, approved in the Comisión Especial on July 27, and the subsequent modifications made by substantive and reiteration motions, and to continue with the legislative process following the criterion of the Chamber in Ruling N° 2018-005758 at 15:40 hours of April 12, 2018, given that those modifications to the retirement regime of the Poder Judicial did not affect the structure and functioning of the Poder Judicial, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed further on. In addition, there is a pattern of worsening conditions for the officials of the Poder Judicial that can be enumerated from some provisions that were modified by the substantive and reiteration motions that were reflected in the text approved in Committee, which implied a substantial change from the previously consulted project. As indicated, this last text was approved in Primer Debate on October 30, 2017, according to which, upon a comparison exercise, some of the following substantial modifications of consideration are observed, such as the following:

• a)In article 224, the worsening from 85% of the average of the last twenty years of ordinary monthly salaries earned through employment was established, and it is modified to establish it at 82% of the average of the last twenty years of ordinary monthly salaries.
• b)In article 229, a similar decrease occurred for the survivor's regime, where for the death of the active servant, the amount for widowhood, common-law marriage, or orphanhood would decrease from 85% to 80%.
• c)In article 227, a similar occurrence happens for the permanent incapacity (invalidity) of the official, from 85% to 83%.
• d)Regarding the income of the fondo de pensiones y jubilaciones del Poder Judicial, it is evidenced that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial servants, and of the retirements and pensions charged to the fund, was established. Finally, it was approved at a fixed thirteen percent (13%), which implies that the floor or base of the worker contribution could not be decreased to the lower percentage of eleven percent. Although the upper extreme is eliminated, the fixed percentage eliminated the decrease in favor of the judicial employee, who historically has been contributing a significant sum to the fund.

In this way, contrary to the criterion of the majority of the Chamber, which is substantially based on the doctrine of Ruling N° 2018-005758 at 15:40 hours of April 12, 2018, a precedent in which the undersigned subscribed a dissenting vote together with magistrate Cruz Castro, we consider that Law N° 9544 called "Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas", contains the substantial defect of the legislative procedure, for the violation of the constitutional rule that imposes the constitutional consultation, based on the arguments set forth below.

A.- Text of the law not consulted with the Corte Suprema de Justicia.

At the base of the discussion, as is well stated in the majority vote, is the determination of whether, under the provisions of article 167, of the Constitución Política, the legislative body was or was not obliged to consult the cited bill with the Poder Judicial, a duty that, moreover, has been incorporated in articles 126 and 157, of the Reglamento de la Asamblea Legislativa, in which the procedure to be observed for this purpose is stipulated. From the constitutional text, it is inferred that the mandatory consultation with the Corte Suprema de Justicia is only such if the bill refers to the organization or functioning of the Poder Judicial. Thus, 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 vote holds that when the Carta Política Fundamental refers to the organization and functioning of the Poder Judicial, it refers -solely- to the affectation of the jurisdictional function, and not the properly administrative one. In support of this position, Rulings N° 1998-5958 at 14:54 of August 19, 1998, N° 2001-013273 at 11:44 hours of December 21, 2001, and N° 2008-5179 at 11:00 hours of April 4, 2008, are cited. Likewise, in relation to the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Asamblea Legislativa to consult the Corte Suprema de Justicia on bills dealing with it, the majority vote cites Rulings N° 1995-3063 at 15:30 of June 13, 1995, and N° 2002-4258 at 9:40 of May 10, 2002, on the basis of which it concludes that in those cases, the Asamblea Legislativa is not obliged to consult the bill with the Corte Suprema de Justicia, under the terms provided in article 167, Constitucional. However, in the opinion of the undersigned, such an interpretation of the constitutional numeral, restricted solely to the jurisdictional function, is not derived either from the text of the Carta Fundamental, or from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it is noteworthy that, with respect to the first three rulings, what the majority holds in its vote is not inferred from them. Thus, in Ruling N° 1998-5958 at 14:54 of August 19, 1998, what is developed is only the term "functioning" -of the binomial "organization or functioning"- of the Poder Judicial, without referring to the issue of the organization of that Power of the Republic. Specifically, in the citation made from that vote, the Chamber clearly indicates that "...the matters that preceptively require consultation with the Corte Suprema de Justicia are those that refer 'to the organization or functioning of the Poder Judicial,' where the term 'functioning' alludes not only to the aspects of internal administrative regime of the judicial offices, but also to the procedural issues that govern the substantiation of the various matters submitted to those courts," with which it is made evident that the issue of organization -which is what is of interest here- was not developed in said resolution, simply because the case did not require it, since it concerned the mandatory legislative consultation on constitutionality regarding the project of "Addition of a new Chapter IV, called 'On the remedy of habeas data,' to Title III of the Ley de la Jurisdicción Constitucional, law Nº 7185 of October 19, 1989," which was processed in legislative file number 12,827, where the issue under discussion was that the reform affected the jurisdictional function of the Poder Judicial.

That this is so follows from the very text of the judgment that is not cited with due breadth in the majority opinion: “…the matters that mandatorily require consultation with the Supreme Court of Justice are those that refer ‘to the organization or functioning of the Judicial Branch,’ where the term ‘functioning’ alludes not only to aspects of the internal administrative regime of judicial offices, but also to the procedural matters governing the processing of the various matters submitted to those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Constitutional Jurisdiction Law integrate this Chamber within the structure of the Court.” Having cited it in context, one cannot infer that the Chamber restricted the binomial “organization or functioning” merely to the jurisdictional realm, but rather that, in the case cited, this Constitutional Court referred solely to the aspect of the jurisdictional function of the Judicial Branch, because that was the subject under discussion, without excluding or referring to the topic of the administrative organization of that Branch of the Republic. The same can be said with regard to Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, which the majority alludes to. It concerns an optional legislative consultation on constitutionality regarding the bill for the “Amendment of the Criminal Code, Law No. 4573 and its reforms,” legislative file number 14.158. Again, it was a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in that case, the Chamber also did not develop this latter topic, as it would have been superfluous. It is for that reason that the substantive discussion focused and exhausted itself on the aspects of the jurisdictional function of the Judicial Branch: “…said consultation [the one under Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill seeking to establish rules for the functioning and organization of the Judicial Branch, this being understood not merely as provisions regulating the creation of courts of justice or jurisdictional competencies, but even those that prescribe the manner of exercising said competencies, that is, the manner in which the Judicial Branch carries out its jurisdictional function, including strictly procedural rules.” It is certainly evident 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 particular aspect on which that consultation turned. But the Chamber did not say that this is the only circumstance in which consultation under provision 167 of the Political Constitution is mandatory, but rather what it said is that, in that case, it is mandatory, without referring to other cases in which it also is so, such as matters relating to the administrative organization and competencies of the Judicial Branch.

Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, deserves a separate comment, since here, unlike the reading the majority makes, it does establish that matters relating to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited Article 167 of the Constitution. On that occasion, this Constitutional Court, as the highest interpreter of the Political Constitution, when referring to the terms “organization or functioning” of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for mandatory consultation with that Branch of the Republic by the Legislative Assembly, considered “…that a bill deals with such matters when its articles contain explicit provisions that order the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or else creates—ex novo—substantially modifies, or eliminates materially jurisdictional or administrative functions…” This is not a change in this Court’s criteria on the matter, but rather, within the already established jurisprudential line, a greater specification of the terms “organization or functioning” used by Article 167 of the Political Constitution, in order to establish the cases in which bills that are in the legislative stream must be consulted—obligatorily—with the Supreme Court of Justice. This judgment did not, in any way, expand the grounds for mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it was clearly determined there that in those cases, but only in those, consultation is mandatory. Thus, it is understood that, in that same judgment, it was stated: “[i]t is worth noting that such an exegesis is imposed for the sake of maintaining the balance of powers, without privileging one constitutional body or another, so that each may exercise its functions independently and separately as imposed by the constitutional text itself (Article 9 of the Constitution). In other terms, the clarification of such concepts prevents any collision, overreach, or exacerbation of the respective functions, for the sake of maintaining the balance and containment of powers, given that the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. In fact, a broad interpretation of the terms used by the original constituent, on the part of the Full Court, could lead to certain matters that are not, strictly speaking, related to the organization and functioning of the Judicial Branch unjustifiably requiring a reinforced law, thereby unnecessarily slowing down or obstructing the legislative function. On the other hand, the Legislative Assembly’s non-application of the constitutional norm, by mistakenly considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause harm to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it is inferred that everything related to the matter of the organization and functioning of the Judicial Branch, but solely and strictly this—in order to safeguard the balance between functional independence and budgetary autonomy of the Judicial Branch, on the one hand, and the freedom of configuration of the ordinary legislator, on the other—is what obliges the legislative body to carry out the consultation before the Supreme Court of Justice, without being able to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect impact on the jurisdictional function, oblige the legislative body to raise the consultation in the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the impact upon or modification of the administrative organization of the Judicial Branch in general—and not only that pertaining to the jurisdictional or judicial bodies in the strict sense—also affects the Administration of Justice service it provides and the independence constitutionally guaranteed to that Branch and to judges as officials called upon to impart justice.

On the other hand, Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, which are cited in the majority opinion as a basis for concluding that bills related to the specific subject of the Judicial Branch Pension and Retirement Fund need not be consulted with the Supreme Court of Justice, also lack the virtue of providing the foundation that, in relation to this matter, the majority of the Chamber claims they have.

In the first of those judgments, the Chamber heard accumulated unconstitutionality actions filed against the Framework Pensions Law, Law No. 7302 of July 8, 1992. This Court, on that occasion, only affirmed that, in the case of the Framework Pensions Law, there was no constitutional obligation to consult the Judicial Branch on the respective bill, for the simple reason that said bill does not affect judicial servants; and, therefore, it does not fall within the provisions of Article 167 of the Political Constitution. Likewise, in the cited opinion, it indicates that functioning is referred to the jurisdictional function, but it makes no allusion to the topic of the organization of the Judicial Branch, which is what is at issue here.

Similarly, in Judgment No. 2002-4258 of 9:40 a.m. on May 10, 2002, the Chamber heard accumulated unconstitutionality actions brought against Article 4 of Law No. 7605 of May 2, 1996, insofar as it amends Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch, No. 7333 of May 5, 1993, as well as, due to connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulations of the Costa Rican Social Security Fund. The Chamber dismissed, among other alleged issues, the violation of Article 167 of the Political Constitution, based on the fact that the reform to the pension regime for judicial servants that was challenged had no relation to the organization or functioning of the Judicial Branch, for the definition of which it referred to what was said in this regard in Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, which, as already stated, only referred to the term functioning of the Judicial Branch, without making any reference to the topic of its organization. Thus, unlike the view expressed by the majority, said judgments do not exclude the matter relating to the Judicial Branch Pension and Retirement Fund from mandatory consultation with the Supreme Court of Justice, except to the extent that the respective bill has no direct relationship with the “organization or functioning of the Judicial Branch,” topics that were certainly not involved in the actions brought before this Chamber and resolved in the cited judgments. This does not exclude the matter concerning the Judicial Branch Pension and Retirement Fund from mandatory consultation with the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation, but rather will depend on whether the bill in question contains regulations relating to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case in order to establish whether said consultation is mandatory or not.

At this point, it is important to clarify that the functional independence of the Judicial Branch, established in Article 9 and reinforced in Article 154, both of the Political Constitution, necessarily implies the authority of said Branch of the Republic to give itself its own organization, in order to prevent, especially, the interference of political interests in its function. And this organizational independence, both administrative and jurisdictional, is also what is protected in provision 167 of the Constitution. In this sense, in the opinion of the undersigned, it is a serious conceptual error to confuse or equate the jurisdictional function in a broad sense, including the function auxiliary to the jurisdictional one, with the strictly administrative function. The jurisdictional function is a special function, different from the administrative function performed by officials of the Executive Branch or the decentralized sector. Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the jurisdictional function compared to the merely administrative function. Precisely, one of those characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is independence, in its dual aspect, both of the Judicial Branch considered in itself, and of the judge and other auxiliaries of the jurisdictional function. To understand the delicate task carried out by the judges of the Republic, with the collaboration of the officials who assist and aid them in their functions and without whom the former could not properly exercise their function, it suffices to bear in mind that they decide the cases submitted to their cognizance with the force of res judicata; that is, they decide what the truth is with the force of the authority of law in each case, without their decision, once it has attained that status, being, in principle, subject to review. This implies an extremely delicate function and great responsibility, which could not be carried out unless the functional independence of the Judicial Branch and of the judges who comprise it is guaranteed. And, in this sense, there can be no true independence if the salaries and pensions or retirement benefits of judges and auxiliaries of justice are not in keeping with their responsibilities, which are much graver than those of any other official exercising a merely administrative public function. Hence, the two can in no way be equated—not in responsibilities, not in functions, not in salaries, nor in retirement rights.

There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional State of Law in modern societies. This is because, unlike what is decided in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata. This not only implies great responsibility, but also the need to have a series of principles and guarantees that enable the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, appears 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 parameter, which would be impossible without due independence. But this independence would be illusory if it does not necessarily entail adequate remuneration and a retirement right in keeping with their functions and responsibilities, both for the judge proper and for the staff who assist and aid them in their function. Therefore, in matters of remuneration and retirement, they cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies, regarding the topic at hand, why the retirement or pension of judicial servants should not be the same as that of the rest of the administrative public sector. What is decided with the force of res judicata in judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, thus, on social peace. In all of this, judicial independence plays a leading role, since in a Constitutional State of Law; that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch proper, vis-à-vis any of the other Branches of Government, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of Government but even vis-à-vis the highest authorities of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch—including all its servants—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank in the hierarchy of norms, to the point that it is also stipulated as a Human Right. In fact, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, Article 8.1 establishes:

“Article 8. Judicial Guarantees.

1. Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation brought against him or her, or for the determination of his or her rights and obligations of a civil, labor, fiscal, or any other nature.” Judicial independence constitutes a fundamental principle within the Constitutional State of Law. But that independence, to be real, must be not only organizational and functional, but also economic. That economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the ordinary budget bill must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The original Constituent’s intention, with the enactment of this provision—which establishes a tied constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary justice personnel receive adequate remuneration for the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions said function entails for judicial servants, which do not weigh upon the public servants of the other Branches of Government. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of the judges and auxiliary personnel, as well as the pension and retirement regime applicable to them, must bear a strict relationship to the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, the economic, personal, functional, organic, and institutional independence, both of the Judicial Branch in itself and of the judges and auxiliaries of justice, is essential in a Constitutional State of Law. Thus, one way to guarantee the independence of the Judicial Branch, of the Judges of the Republic, and of the auxiliaries of justice, is with a dignified retirement or pension, commensurate with their constitutional functions.

In the statement of purposes leading to the enactment of the Law on Judicial Pensions and Retirements, as an addition to the Organic Law of the Judicial Branch, Deputy Teodoro Picado Michalski, on June 2, 1938, expressed:

“The Judicial Branch is one of the three principal pillars upon which the Government of the Republic rests; and it is from its servants, those who exercise very delicate functions for the very life of Society, that more is demanded than from other employees—greater learning, probity, and work. And it is for this reason, surely, that, in asking judicial servants for complete dedication, over long years, to the very important task of administering justice—with the noble purpose of ensuring their subsistence upon reaching old age or when physical ailments prevent them from working—that the enactment of a law has been urged before Congress in various legislative periods to address this difficult situation of the officials and employees of the Judicial Branch.” It must not be overlooked that the adjudicating persons and the judicial civil service in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions affecting the rest of public officials, which makes it of a completely different nature. The regulations applicable to administrative civil servants throughout the public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and upon termination of the employment relationship. But also, the principle of equality, enshrined in Article 33 of the Political Constitution, implies the prohibition of treating unequals as equals, because this results in discrimination contrary to the Law of the Constitution. In the case of judges and judicial officials, there are objective, reasonable, justified conditions grounded in the very nature of the jurisdictional function exercised, to treat them differently from the rest of the public servants of the various administrations, which, far from incurring discrimination, protects the principle of equality regulated in the cited constitutional provision. Which is to say, that if there is a differentiated retirement regime for the jurisdictional sector, this is not due to an arbitrary, subjective, or whimsical decision of the legislator, but rather to the specific and different nature of the jurisdictional function itself that, objectively and constitutionally, justifies it.

The foregoing is not only derived from our own Political Constitution and the values and principles that inform it, but is also contained in various international instruments. Thus, for example, in the “Basic Principles on the Independence of the Judiciary,” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, in principle 11, the following is stated:

“11. The law shall guarantee the tenure of judges for set periods, their independence, and their security, as well as adequate remuneration, pensions, and conditions of service and retirement.” Whereby, the United Nations recommends to all countries of the world that legal provisions must guarantee judges adequate and proportionate remuneration, pensions, conditions of service, and retirement in accordance with the complexity and difficulty of the jurisdictional function they exercise. This must also be understood as extending to auxiliary justice officials, 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, for the sake of achieving real and effective independence of the Judicial Branch and of the officials administering justice, as well as of their collaborators and auxiliaries, in paragraphs 6.1 and 6.4, the following is established:

“6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined so as to shield the judge from pressures intended to influence his or her rulings and, more generally, his or her judicial 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 duties, after having performed them professionally for a set period, receives payment of a retirement pension the amount of which shall approximate as closely as possible his or her last judicial service remuneration.” The cited instrument seeks to achieve a real and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. Therefore, adequate remuneration and pension for judges and auxiliaries of justice, in the terms expressed therein, constitutes the due and reasonable consequence of exercising a delicate function of great difficulty and responsibility.

Also, the “Statute of the Ibero-American Judge,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32, echoes the same principles already cited, stating:

“Art. 32. Remuneration.

Judges shall receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” And in Article 33, it provides:

“Art. 33. Social Security.

The State shall offer judges access to a social security system, guaranteeing that, upon concluding their years of service due to retirement, illness, or other legally provided 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 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 irremovability of judges. With regard to the subject of judges’ salaries, said Council recommended:

“…it is generally important (and especially in the case of new democracies) to lay down specific legal provisions guaranteeing judges’ salaries protected against reductions and de facto ensuring ‘the increase of salaries in line with the cost of living.’” These recommendations are fully applicable to the subject of pensions and retirement for judges and judicial servants in general, since they are intimately related to the principle of independence of the Judicial Branch, as already set out.

But this matter has not only been regulated in the international sphere in the said terms; it has also been subject to regulation within the Judicial Branch itself, with considerations similar to those stated.

In fact, the Full Court approved the Statute of Justice and Rights of Users of the Judicial System, in Articles 19, 20, 21, 22, 23, and 24 of which reference is made to the independence of the Judicial Branch and of judges, in its different facets. In Article 24, relating to the material conditions of judicial independence, it is established that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget items,” which is intimately related to the provisions of the already cited Article 177 of the Political Constitution, regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the cited Statute also enshrines, as do the international instruments examined, the principle of the irreducible salary of the judge: “Judges shall receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation is based on the independence of the Judicial Branch, which must also be extended to the subject of the pension or retirement of judges and of auxiliary justice personnel, since 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 the subject of express regulation in the Statute, Article 20, by providing that “[t]he other Branches of Government and, in general, all authorities, institutions, and national or international bodies must respect and make effective the independence of the judiciary.” And, precisely, the unconsulted intrusion of the legislative body into the organization and functioning of the Judicial Branch, whether by creating, modifying, or suppressing judicial or administrative bodies or competencies, is constitutionally inadmissible, as this constitutes a flagrant violation of the principle of judicial independence.

Lastly, it should be noted that the independence of the Judicial Branch is a principle that has a particular and specific nature, distinct from that of the other Branches of Government, since it consists of a protective shield against the intrusion of political power, from which the other Branches of Government are not protected. This is because the Judicial Branch is the one that administers justice, and justice must be impartial and free from any external pressure.

And, at this point, economic pressure, whether through salary or stipend, or through the amount and conditions of the retirement or pension of judges and other judicial auxiliaries, plays a crucial role in achieving real and effective independence of the Judicial Branch.

Based on the foregoing considerations, it is therefore necessary to examine the content of the law in order to determine whether or not it affects the organization or functioning of the Judicial Branch, in the terms expressed.

In this vein, just as when the legislative consultation related to the bill for the Comprehensive Reform of the Various Pension Regimes and Related Regulations was heard, today approved by Law No. 9544 of April 24, 2018, called "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms," the reasons for the dissenting vote are maintained. That legislative consultation was resolved by Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018, in which it addressed the various complaints about Article 239 of the law now in question. On that occasion, the legislative process was reviewed regarding the creation of an Administrative Board of the Pension and Retirement Fund of the Judicial Branch (Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial), which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions granted by law, an organ granted functional independence and assigned a series of competencies, among others, increasing the worker contribution to the Pension Fund and hearing retirement applications, which implies a modification in the structure of the Judicial Branch. Likewise, competencies are subtracted from the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial); and, furthermore, in Article 240 of the bill, the Full Court (Corte Plena) is given the obligation to issue regulations for the election of the members of that Administrative Board, thus assigning it a competency it currently does not have. The aforementioned articles of the Law provide:

"Article 239- The Administrative Board of the Retirement and Pension Fund of the Judicial Branch (Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial) is created as an organ of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the powers and attributions granted by law.

The Board is responsible for:

• a)Administering the Pension and Retirement Fund of the Employees of the Judicial Branch.
• b)Studying, hearing, and resolving the retirement and pension applications submitted to it.
• c)Collecting the contributions corresponding to the Fund and exercising the necessary collection actions.
• d)Attending to re-entry requests for remunerative work from invalid retirees.
• e)Conducting actuarial studies with the periodicity established in the regulations issued for this purpose by the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero, Conassif) and the Superintendency of Pensions (Superintendencia de Pensiones, Supén).
• f)Investing the Fund's resources, in accordance with the law and the regulations issued for this purpose by the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• g)Complying with the legislation and regulations issued by both the National Council for Supervision of the Financial System and the Superintendency of Pensions.
• h)Issuing the rules for the appointment, suspension, removal, and sanction of personnel; as well as approving the annual operational plan, the operating budget, its modifications, and its annual liquidation.
• i)All other attributions assigned to it by law and its regulations.

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

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

It shall be financed by a commission for administrative expenses derived from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions chargeable to the Fund. These resources shall be used to pay the fees 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 who shall be democratically elected by the judicial collective, as well as three members appointed by the Full Court, with a gender perspective in both cases. Each full member shall have a substitute to replace them in their absence, who must meet the same requirements as the full member.

The members of the Board shall serve for five years, after which they may be re-elected, all in accordance with the regulations to be issued for this purpose by the Full Court, after hearing the trade union organizations of the Judicial Branch.

In the first ordinary session, the Board shall appoint the person who will preside over the sessions. This appointment shall be made for a period of one year, and must alternate each year between the representatives of the judicial collective and the Full Court. Furthermore, a substitute shall be appointed in case of absence. The presiding person shall have a casting vote in the event of a tie.

The members of the Administrative Board shall not receive any fees but shall have the necessary leave to attend the sessions. To be a member of the Board, the following requirements must be met, which must be documented and demonstrated before the Superintendency of Pensions (Supén):

• a)Hold a university degree in careers related to the administration of a pension fund and be incorporated into the respective professional association, when applicable.
• b)Be of recognized and proven honesty.
• c)Have knowledge and at least five years of experience in professional or managerial activities relevant to the administration of a pension fund, so that all members of this body possess the skills, competencies, and knowledge to enable them to analyze the risks affecting the Board and the Fund.

The following may not be members of the Board:

• 1)Persons against whom a final criminal judicial sentence has been handed down in the last ten years for the commission of an intentional crime.
• 2)Persons who, in the last ten years, have been disqualified from holding an administration or management position in the Public Administration or in entities supervised by the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras, Sugef), the General Superintendency of Insurance (Superintendencia General de Seguros, Sugese), the Superintendency of Securities (Superintendencia de Valores, Sugeval), and the Superintendency of Pensions (Supén).

The composition of the body must guarantee equal representation of both sexes, ensuring that the difference between the total number of men and women is no more than one." From the reading of Article 239, transcribed above, it is clear that it creates a new organ within the structure of the Judicial Branch, called "Administrative Board of the Retirement and Pension Fund of the Judicial Branch," which is granted complete functional, technical, and administrative independence, to exercise the powers, competencies, and attributions granted by law, listed in subsections a), b), c), d), e), f), g), h) and i) of the article itself, for the fulfillment of its tasks, for which it shall have instrumental legal personality. Thus, an administrative organ is created ex novo and attached within the structure of the Judicial Branch, with determined competencies and attributions; and, concomitantly, competencies and attributions previously granted -by formal law- to the Superior Council of the Judicial Branch are subtracted and eliminated. This single circumstance, for the reasons stated, obliges the legislative body to necessarily consult the bill with the Judicial Branch, under the terms set forth in Article 167 of the Political Constitution, since it modifies the administrative organization of the Judicial Branch, with the creation of a new administrative organ, and the suppression of competencies of the Superior Council in favor of that newly created organ, which clearly affects the independence of that Branch of the Republic.

The same can be said in relation to Article 240 of the law, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, regarding the composition and appointment of the members of the Administrative Board of the Retirement and Pension Fund of the Judicial Branch, their tenure in office, the appointment of the person who is to preside over it, and the requirements to be a member of that Board, among others. It is noteworthy that, even though the Full Court 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, through the law, it is imposed with the obligation to regulate the tenure in office of the members of the Administrative Board of the Retirement and Pension Fund of the Judicial Branch, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Supreme Court of Justice, implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. At first glance, the cited regulations remove from the President of the Supreme Court of Justice, and consequently, from the President of the Superior Council of the Judicial Branch, the competency granted by the Organic Law of the Judicial Branch to administer the Pension and Retirement Fund of the Judicial Branch, precisely in accordance with the investment policies established by the Full Court, as currently contemplated in Article 81, subsection 12.

Notwithstanding the foregoing, the substitute text of the bill, which was adopted by the Special Committee in the session of July 27, 2017, was not consulted with the Supreme Court of Justice, despite containing a series of regulations that affect the organization and functioning of the Judicial Branch. However, as stated in the majority vote, at folio 2625 of the legislative file it is recorded that, in response to a motion approved on July 27, 2017, by the Special Committee, by official letter number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Commissions Area of the Legislative Assembly granted an audience to the Judicial Branch regarding the affirmative majority report, based on which, the Supreme Court of Justice issued its opinion through official letter number SP-253-17 of August 10, 2017, as recorded at folios 2759 to 2807 of the legislative file. This means, then, that the Judicial Branch was indeed consulted and expressed its opinion regarding the substitute text approved by the Special Committee on July 27, 2017, which occurred even before said text was known by the Plenary.

Despite this, that text was not the one approved in the 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 the one approved is a substitute text introduced by motion via Article 137 of the Regulations of the Legislative Assembly. This last text was not consulted with the Supreme Court of Justice, as was appropriate, according to the analysis supra, in accordance with the provisions of Article 167 of the Political Constitution.

As argued by the plaintiffs, a constitutional violation was incurred in the legislative procedure. In this regard, it is worth noting that this Constitutional Court has jurisdiction to hear and rule on defects in the formation of laws when any substantial requirement or procedure provided for in the Constitution or in the Regulations of the Legislative Assembly is breached. This is in accordance with Article 73, subsection c), of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which states:

"Article 73.- An action of unconstitutionality shall be admissible:

…

• c)When in the formation of laws or legislative agreements, any substantial requirement or procedure provided in the Constitution or, as the case may be, established in the Regulations […] of the Legislative Assembly is violated.

…" Thus, according to the Law of Constitutional Jurisdiction, if what is being analyzed is a formal law approved by the Legislative Assembly, it would be a matter of subsequent review of the laws or legislative agreements, through examination of the legislative file, to determine that no essential defect was incurred in the law formation procedure. Therefore, the defect detected in the legislative procedure of Law No. 9544, called "Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms," must be declared due to the omission to consult the Supreme Court of Justice on the substitute text approved in the First Debate, since this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative organ within its structure, granting it substantial competencies in pension and retirement matters; and, at the same time, suppressing competencies previously granted by law to the Superior Council of the Judicial Branch (Articles 239 and 240 of the bill).

This Chamber, in support of the foregoing, in Judgment No. 2001-13273, of 11:44 a.m. on December 21, 2001, when resolving a legislative consultation of constitutionality on a bill to reform the Penal Code, insofar as it modifies aspects related to the -merely administrative- organization or functioning of the Judicial Archive, unanimously held that:

"Likewise, they modify the scope of functions of the Judicial Archive, increasing the amount of data it must record. All of the foregoing undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Legislative Assembly omitted to make the respective consultation to the Supreme Court of Justice (at least it does not appear in the certified copy of the file sent by the President of the Directorate), without said aspects having previously been included in the texts consulted with the Supreme Court of Justice, for which reason this Chamber considers that a violation of the duty imposed in Article 167 of the Political Constitution was incurred regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense, it must be understood that the procedure followed prior to the approval of the amended report is null from the constitutional point of view and must be declared so." Note from the foregoing, that the defect pointed out was not remedied in the second debate, even if the Law had been approved by a qualified majority, because this would only be so if it involved the approval of a text that required mandatory consultation with the Judicial Branch, for affecting its organization, structure, and functioning -as in this case-, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it, departing from the technical opinion of the judicial body. None of this occurred in the legislative procedure, since Law No. 9544 of April 24, 2018, did not even obtain the qualified vote in the second debate, and even worse, the text approved was without institutional consultation. The crux of the problem before us is really the approval -in the First Debate- of an unconsulted text, in contravention of the provisions of Article 167 of the Political Constitution, a procedural defect that is insurmountable and irremediable. This is because, while it is true that the substitute text of the bill, which was adopted by the Special Committee in the session of July 27, 2017, was consulted with the Supreme Court of Justice, this text was not the one finally approved in the First Debate, but rather a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been stated. And furthermore, although the previous text approved by the Special Committee in the session of July 27, 2017, was indeed consulted with the Court, since the latter expressed disagreement with the text, a qualified vote by the Plenary was mandatory, in accordance with Article 167 of the Fundamental Charter, which was also not done.

It is worth remembering that the institutional consultation aims to protect judicial independence, which is much more complex than reducing it to the protection of a jurisdictional privilege. The mandatory institutional consultation must be timely, because otherwise, it would be a paper obligation that would not provide the true safeguards that the constitutional text seeks to establish between equal Branches of the Republic. The sustained, permanent contrary position by the majority of the Tribunal will not be sustainable over time, because even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is so, mostly, regarding the citizen guarantees that the Constituent Power sought to guarantee in Article 167, and later, improved with the reform of numeral 177 of the Political Constitution.

The Full Court, in Session No. 27, of August 7, 2017, Article XXX, when resolving the consultation to the Legislative Assembly on the Affirmative Majority Report, approved by the aforementioned Special Committee, ordered:

"It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial employees because it means a reduction in retirement, even when they have met all the legal requirements to fully enjoy the retirement right. This includes the contribution of the necessary and corresponding quotas; the payment of income; contributions both to the Retirement and Pension Fund of the Judicial Branch and to the system of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) and another series of charges that, if the text is approved as proposed by the reporting Committee, would result in confiscatory actions.

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

It affects the judicial, prosecutorial, Public Defense, and general staff careers, who, having more burdens on their salary -four times more than in other regimes-, would receive a lesser benefit.

Moreover, the renewal of the staff that manages to remain is affected. The Judicial Branch would have elderly officials, who remained working solely due to the reduction their income would suffer in case of retirement.

The judicial population would be at a crossroads, where although it is true they have the desire to opt for this right and the motivation to retire and rest, they find themselves placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal or pre-pension acquired expenses, and the natural ones due to age. However, this process also has its restrictions; from a legal point of view, the Organic Law of the Judicial Branch prohibits retired persons from seeking another job, and socially it is a reality that after forty years of age, there are factual limitations regarding labor reincorporation.

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

Furthermore, the regulation of the Retirement and Pension Fund of the Judicial Branch should not be evaluated solely from an economic perspective, as we are faced with fundamental -inalienable- rights associated with every worker, who during their working years contributed a higher percentage than the general one, to a regime with the expectation of having a pension, which allows them to meet their needs and enjoy, together with their surroundings, their retirement years in a calm manner and with quality of life.

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

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

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

Taking into account the observations raised regarding the Bill processed under file 19922 (20035), which find support and backing in the actuarial study conducted by the IICE and based on the powers that Articles 167 of the Political Constitution and 59 subsection 1) of the Organic Law of the Judicial Branch grant, it is deemed that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Legislative Assembly must take into account what was stated by the Full Court in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from said binding opinion.

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

Corollary, regarding the Bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch." The final part of the cited constitutional article (167) literally expresses that "to depart from the opinion of the latter [The Court], the vote of two-thirds of the total members of the Legislative Assembly shall be required"; and said final text -not consulted in any case- was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). And, for the second debate, it did not obtain the qualified majority, reaching thirty-four votes (folios 4437, 4608 and 4637 of the legislative file).

B.- The legal and social dynamics that informed the reform of Article 177, Constitutional. It is necessary to address the majority opinion, which, we consider with respect -but with equal vehemence-, the reasons for which it is considered that they use a lax interpretation of the obligation of institutional consultation established in Article 167, Constitutional, in addition to what was previously stated. It is clear that, in general, the basic constitutional doctrine for institutional consultation is based on similar reasons: guaranteeing that the legislator has firsthand the best information to legislate, that is, that they have the specific technical opinion. It is about the Constituent Power's recognition of institutional autonomies, as well as, in its highest degree, the defense of the independence that corresponds to a Branch of the State or a fundamental constitutional organ of the State. In the processes of complex laws, such as those where the Judicial Branch's opinion is opposed, it is most required that a qualified majority of legislators promote those significant changes in the legislation through a true consensus.

Although this Chamber, in some of its rulings, has established that institutional consultation is not applicable to bills of a national or general nature, this jurisprudential criterion alone cannot suffice to dismiss the need to aggravate the legislative procedure in the Legislative Assembly, when it concerns the qualified majority established in numeral 167, Constitutional. This must be dimensioned not only referring to issues related to the institutional autonomy of the Judicial Branch, but especially, to those referring to the direct or indirect impact on judicial independence, which is guaranteed in the Constitution, through the fundamental organic structure of the State. This is especially true if, as in the case before us, there have been various defects in the legislative procedure, referred to further below.

It is clear that criteria denying institutional consultation for considering a bill to be of a national or general nature cannot be used indiscriminately, especially because with that classification, a large number of bills that affect the national budget would enter; in this situation, a vast majority would have a national impact that is used to establish the defense of public objectives seen from economistic criteria. On the contrary, this minority believes that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental organ of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent implications on the judicial function (which is universal and with full jurisdiction over all legal disputes), which expresses the fundamental control functions, as much as and more than those of semi-autonomous and autonomous institutions, because it relates to the functional specialty and independence of a branch of the Republic. The absolute weight of the fundamental institutional framework of the State must outline the criteria for the examination and scrutiny this Constitutional Court must perform, so that it cannot be examined in the same terms as is done for other autonomous institutions, because evidently the consequences are very different for the State and the population in general. It suffices to point out Judgment No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

"…in general, the judicial function is universal and has full jurisdiction over all legal disputes that arise in the country. Universality refers to the competence over all disputes submitted to the Courts of Justice, and even those not appearing in it or in the law by the principle of hermeneutic plenitude (Article 153 of the Political Constitution). Universality supposes jurisdiction over all individuals in dispute, including in accordance with the general principles of Public International Law and Private International Law.

The Judicial Branch has the competence to definitively decide all controversies, channeling matters in accordance with the respective procedure of the procedural path, concluding, generally, with a judgment—the normal way of ending the proceeding—with the status of res judicata (cosa juzgada), which is an expression of the power and function of full, universal jurisdiction, and which implies the prohibition against reopening discussion of the same controversy, in order to prevent the perpetuation of conflicts and their threat to peaceful coexistence in society. It is the tombstone that prohibits reopening discussion of the same facts.” The Constitution-maker, of course, assigned a specific field of action to the Judicial Branch so that it functions with independence, which is nourished by and participates in all Western thought, inspired by the principles of impartiality and justice; it simply cannot be compared to, or assimilated to, that of the lesser entities of the State; on the contrary, it is clear that Article 167 of the Political Constitution is situated in consideration of its institutional importance and its functional autonomy within the grand scheme of the State.

Earlier in this same judgment, it was also established that:

“This leads to the principle of functional legality, which entails the exercise of the State’s constitutional competences, the achievement of the core objectives of each branch without extending into those of the other independent and co-equal Branches, and by each exercising the functions of checks and balances, they can control and limit the other Branches, as authorized by the Political Constitution. In accordance with the distribution of the fundamental functions of the State, when the Legislative Branch enacts laws, it is subject to the supremacy of the Political Constitution and to the limits enshrined by the Political Constitution, which definitively conditions its regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could not fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the fundamental Charter; finally, the Judicial Branch could not decide against the grain of the rules applicable to a specific case, except for conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Political Constitution, remaining subject to them. In accordance with Articles 10 and 152 et seq. of the Political Constitution, it must ensure the regularity of all legislation, so it could not apply invalid or unconstitutional regulations, since, coupled with the fundamental function of administering justice, it must ensure that no action or omission violates the essential principles of any social and democratic State of Law, among them: the principles of legality, normative hierarchy, and respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch ultimately interprets and applies the Political Constitution, having constitutional control over norms and omissions—the monopoly on rejection—when legislation is contrary to it, and when it violates fundamental rights, because it is naturally the ultimate guarantor of the principle of legality, the ultimate defender of the ends and objectives of the State and of the realization, through Law on a case-by-case basis, of human well-being.” Now then, the judgment addresses the generalities of the Fund and its legal development from the beginning of the last century, in tune with Judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018, to explain the legal development of social security and the pension and retirement regime of the Judicial Branch. However, reference should have been made to the fact that the system’s shortcomings also served as a spur at the constitutional level, as there were others that were gestated to guarantee greater institutional stability and in favor of judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the country’s institutional framework, the one obtained with the reform of Article 177 of the Constitution, with which the economic independence of the Judicial Branch was guaranteed. It is fitting then to posit that, if the institutional and social dynamics of that time were important, even more so were those of the amendment to the Political Constitution, which are not at all negligible, since they were directed at strengthening the Judicial Branch, and with equal weight, producing protection within the civil service. The economic and legal dynamics speak as much or more, for despite the legal achievements and due to the number of problems that existed in the era prior to the constitutional reform, a substantial improvement of that economic independence of the Judicial Branch was gestated from within the Full Court, and was welcomed by the Legislative Assembly, enshrining it in the Political Constitution itself. There is no doubt that the protections established by the derived Constitution-maker in the reform are equally distributed over the stability of the judicial civil service. Thus, limitations on facilities and infrastructure, providing better work tools, salary improvements, more resources for the Judicial Branch Pension and Retirement Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial), among others, were contemplated. The claims of the plaintiffs should have found an echo in this avenue of the acción de inconstitucionalidad, some of which are listed at the beginning of this dissenting vote. Judicial independence is defended with the tools precisely provided by the Constitution-maker, among which the most consolidated democracies in the world dedicate themselves to producing instruments of protection for judicial and economic independence, one of them being the qualified vote in the event that a bill affects the organization and functioning of the Judicial Branch.

In Judgment No. 2006-07965 of 4:58 p.m. on May 31, 2006, this Chamber established that:

“VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the Judicial Branch corresponds, par excellence, to the exclusive exercise of the jurisdictional function—as noted in the preceding considerando—the truth is that it also exercises, exceptionally or extraordinarily, functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to a single organ or entity, nor does it possess typical content that characterizes it, since, as doctrine has well pointed out, it is easier to describe public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and necessitates an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, in a prompt and fulfilled manner. This is what has been called the ‘public service of administration of justice’ (servicio público de administración de justicia). Thus, the auxiliary administrative support or apparatus that allows judges and courts to issue their resolutions makes up said service, whereby the concept refers to the administrative profiles of the jurisdictional function, such as the organization and operation of courts, logistics—provisioning and supplies—, the efficient and effective management or administration of judicial offices to avoid undue or unjustified delays in the processing of the case, the administrative function exercised by the administrative organs of the Judicial Branch (e.g., administrative resolutions of the Full Court, the Superior Council of the Judicial Branch, the Tribunal of Judicial Inspection, the Council of the Judicature, and, in general, various administrative departments—Executive Directorate, Procurement, Personnel, etc.—) and auxiliary bodies attached to it, such as the repressive police exercised through the Organismo de Investigación Judicial, the exercise of public action by the Public Ministry, and the provision of free defense through the Public Defender’s Office (Defensa Pública). Nevertheless, although this materially administrative function is carried out by the support or backing apparatus or organization for the jurisdictional function, it must be understood in a strictly exceptional sense, that is, only that which is necessary and suitable to assist in the exercise of the materially jurisdictional function is admissible, and nothing else. By reason of the foregoing, by application of the constitutional principle of the reservation or exclusivity of jurisdiction, it is imperative that the Judicial Branch must use and allocate the majority of its resources to the exercise of a materially jurisdictional function.

VII.- ECONOMIC AUTONOMY AND INDEPENDENCE OF THE JUDICIAL BRANCH. One of the great historical achievements of the Costa Rican Constitutional State of Law was the economic autonomy of the Judicial Branch achieved through the partial reform of the Political Constitution of November 7, 1949, by Law No. 2122 of May 22, 1957. This law added a second paragraph to the original version of Article 177 of the Political Constitution, which provided as follows:

‘(...)

In the draft budget, the Judicial Branch shall be assigned a sum not less than six percent of the ordinary revenues calculated for the economic year. However, when this sum turns out to be greater than that required to cover the fundamental needs budgeted by that Branch, the aforementioned department shall include the difference as a surplus, with a national investment plan, for the Legislative Assembly to determine what is appropriate (...).’ This partial reform of the Constitution strengthened, congruently with Article 9, which proclaims the separation of functions, the independence of that Branch of the Republic. The constitutional amendment originated from the proposal formulated on September 6, 1956, by then-Magistrate Evelio Ramírez to the Full Court, the collegiate body that approved it in the session held that same day. In the justification for the constitutional modification—which would later become the statement of motives for the reform in the legislative procedure—Magistrate Evelio Ramírez insisted on the need to assign the Judicial Branch a minimum or ‘sum not less than six percent of the ordinary revenues calculated for the economic year,’ to overcome the lamentable situation of that Branch of the Republic, having received in the seven years preceding 1956 an average percentage of only 2.75% in relation to the General Revenue Budget. The manifest purpose of the Magistrate who proposed the constitutional reform and of the Full Court upon accepting his proposal was to have greater financial resources to diversify and strengthen the different jurisdictional orders, increase the number of courts and tribunals and the personnel necessary to meet the demand for service, reform and improve processes, provide adequate infrastructure and material resources to courts and tribunals, improve the salaries of those devoted to the delicate and difficult task of administering justice and their pension and retirement regime (régimen de jubilaciones o pensiones), all in the interest of securing a more prompt and fulfilled justice. In that sense, Magistrate Evelio Ramírez made considerations such as the following:

‘(...) the Supreme Court of Justice, knowing better than anyone the true needs of the Judicial Branch, would prepare its own preliminary draft Budget taking into account the factors that, in its judgment, require economic variations within an honest, rational, and fair criterion. And it would not only attend to the proper installation of its many offices—which today offer an almost ruinous aspect throughout the Nation—but would also supply them with typewriters, adequate furniture, and the other material means indispensable to work with the greatest possible efficiency. Moreover, all judicial servants could be paid more equitably (...) The same Pension and Retirement Fund (Fondo de Jubilaciones y Pensiones)—whose stability is seriously threatened—could be reinforced from that global allocation (...) The average percentage that has corresponded to the Judicial Branch in the last seven years has been 2.75 percent, in relation to the General Revenue Budget (...) Experience has come to show that this percentage is entirely insufficient for the adequate functioning of the Judicial Branch. To realize this, one need only consider the inadequate buildings that house almost all the courts of the Republic, the slowness with which various judicial matters are processed, due to the scant number of courts and the personnel available in those currently operating, the insufficient number of typewriters and other furniture that are of imperative necessity, the low salaries of judicial servants, etc. etc. (...).’ For its part, the special legislative commission appointed to issue a report on the bill to reform Article 177 of the Constitution, in the first legislature, in its report of October 9, 1956 (visible on folios 20-21 of the legislative file), estimated the following:

‘This constitutional reform—with which the autonomy of the Judicial Branch in the economic aspect will be definitively strengthened—will make it possible in the future for the many problems currently confronting said Branch due to the limitation of economic resources assigned to it in the national budgets to find an adequate solution. These problems come from far back and worsen day by day as a consequence of the growth and development of the population, which demands ever more justice administration services. The judicial offices do not have sufficient personnel to attend to the many problems that arise daily, and materially, with very few exceptions, they are housed in totally inadequate premises and without sufficient furniture or equipment (...) The remuneration of judicial servants is, moreover, meager, such that the judicial career offers no stimulus or incentive whatsoever to those who wish to begin in it, and this in many cases drives away elements of vocation and capability who could, under other conditions, offer their services as Alcaldes, Judges, or Magistrates.’ Consequently, the guiding idea that inspired the 1957 constitutional reform was to strengthen the organization and functioning of the Judicial Branch, so that it would exercise its essential function of imparting or administering justice efficiently and effectively. Under this understanding, any provision of the ordinary legislator aimed at assigning organs that exercise materially administrative competences that are foreign or do not pertain to the jurisdictional function to the organization of the Judicial Branch is unconstitutional, insofar as it violates financial autonomy and, consequently, the independence of the Judicial Branch, by diverting the use and employment, even if only by a small percentage, of the minimum guaranteed budget assigned to it for other purposes. It can be affirmed, then, that paragraph 2 of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees an effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and to obtain prompt and fulfilled justice.” The assertion that essential administrative competences of organization and those connected to the jurisdictional function are not being removed is highly relative, if, as explained above, an organizational aspect and the administration of the Judicial Branch’s personnel are being modified. By this, the history of the constitutional amendment is ignored, where it was indeed contemplated as justification for passing the reform to Article 177. The majority affirms that it concerns the same essential content of a legal institute, but by doing so, the law eliminates the administration of pensions in the Superior Council of the Judicial Branch, to grant it to an Administering Board of the Judicial Branch Pension and Retirement Fund (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial). It is true that it remains within the Judicial Branch, but now in a deconcentrated organ, which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156 of the Constitution). There is a schism that produces affectation to the organization of the Judicial Branch, if you will, broadly speaking, in its capacity to organize itself, in the management and administration of the fund, for the exercise of the social security rights of the Judicial Branch personnel, which, it is worth saying, is contrary to the opinion of the Full Court, due to the neglectful manner of conducting an institutional consultation, and for ignoring its opinion against the principle of the functional legality of a Branch of the Republic. Remember that the reform to Article 177 of the Constitution came attributed with the vision of reinforcing judicial independence, including that of its functionaries, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly embedded later in the Political Constitution of 1949, did not go so far as to include—explicitly—the lifetime tenure (irreductibilidad) of judicial officials’ salaries, as in other latitudes; however, it did work in our country because it allows it to enjoy the indices of judicial independence that Costa Rica has enjoyed comparatively on a global level, which is clearly the fruit of the economic independence of the Judicial Branch. This has been thanks in part to the recognition of the public employment regime that was consolidated throughout the republican life of this country.

Judgment No. 1996-03575 of 11:18 a.m. on July 12, 1996, indicated regarding:

“... the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—are the most capable of determining their needs and knowing their particular conditions.” By Judgment No. 1998-005795 of 4:12 p.m. on August 11, 1998, which established that:

“From the provisions of Article 154 of the Political Constitution,—which states—:

‘The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts.’ derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in hearing the matters submitted to his judgment. In relation to this official, it must also be recognized that there is a double protection of his investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is towards the external and the internal, in the sense that he is protected from influences and incidences—both external and internal—that he may have in one sense or another in the decision of a specific case submitted to his knowledge, so that he rules in strict adherence to the provisions of the current regulations; in other words, the judge is protected so that neither the parties involved in the proceeding, third parties, superior judges in grade, ‘influential’ members of the Branches of the State, including the Judicial Branch itself, can influence his decision, which means much less would the obligation—imposed by a superior in grade—to rule in a certain way on a specific case or to coerce the judge in that sense be admissible. The guarantee of the independence (sic) of judges, more than a guarantee for these officials—which effectively it is—, constitutes (sic) a guarantee for private parties (parties to the proceeding), in the sense that their cases will be decided in strict adherence to the Constitution and the laws.” By Judgment No. 1998-005798 of 4:21 p.m. on August 11, 1998, this Chamber established that:

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

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

2.- ...’ The independence of the Judicial Organ (Órgano Judicial) is posed towards the outside. The Judicial Organ is independent vis-à-vis the other Branches of the State, not so the judge, whose independence must be analyzed in a more complex manner. But when it is asserted that a Judicial Branch is independent, the same must be predicated of its judges, since they are the ones who must make the function entrusted to the former a reality; it is this independence to which I will refer next. The independence that truly should be of interest—without detracting from the importance of that of the Judicial Organ—is that of the judge, related to the specific case, since it is this one that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the judges who make it up also being able to be independent, but it may well be that the Organ as a whole has normatively guaranteed its independence, but that its members are not independent, for multiple reasons.” This is no small thing, considering that the organization and administration of the judicial function not only should not be limited to the jurisdictional part, as the majority understands it, but rather this is complemented by other organizational functions, which should be respected for it as a Branch of the Republic. As was stated earlier, the amendment to the Political Constitution contemplated not only jurisdictional aspects but also operational aspects of the Judicial Branch, so it would have been contemplated by the original Constitution-maker in Article 167, because from within the Full Court in 1956, and in the Legislative Assembly in 1957, it adopted from that foundational era of the Second Republic to respond to the needs of the officials in their salaries and pension and retirement regime, a core precept for Costa Rican democracy.

It is evident that the Judicial Branch Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones del Poder Judicial) formed an essential part of the economic independence of the Judicial Branch of that time, and must continue to be so in our own, according to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The derived Constitution-maker, by accepting the vision of the Full Court, took a decisive step to receive management independently and autonomously from the rest of the political branches, which in turn allowed said management and governance to be carried out within the legal and constitutional purposes of the administration of justice. Nor can it be affirmed, as the majority says, that the recognition of the constitutional 6% percentage was smooth and without any problem; on the contrary, what is characteristic of it is that the relationship between branches has been rocky, rough, abrupt, so that every budget has been obtained with great effort or timely negotiation by the representatives and authorities of the Judicial Branch. In fact, the Constitution-maker foresaw such a possibility of negotiation and consideration by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Political Constitution, with the 6% of the ordinary revenues of the Republic’s economic year, is an aspect that has served as a stimulus for the legislator to use the orbit of the Judicial Branch as an aggregating factor for administrative institutions foreign to the judicial function. Precisely, Judgment No. 2006-07965 of 4:58 p.m. on May 31, 2006, cited above, concludes with the declaration of unconstitutionality of norms of the Notarial Code, for establishing an organ of an administrative nature such as the Dirección de Notariado within the Judicial Branch in violation of the constitutional principles of separation of functions, reservation or exclusivity of jurisdiction, independence and financial autonomy of the Judicial Branch, and the right to a prompt and fulfilled justice of the inhabitants of the Republic.

In continuity with Judgment No. 2017-09551 of 11:40 a.m. on June 21, 2017, it was also indicated that:

“For all these reasons, we must recognize that, with the object of rationally organizing work, with effectiveness, efficiency, simplicity, and speed, every primary function must be accompanied by other functions—not primary to the constitutional organ—and be aligned towards the primary function; it is thus how it must be recognized that both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, as is the administrative function that helps channel all their activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function lies the administrative function of personnel, agents, and public servants, etc. Evidently, in the Costa Rican context, it would be a serious contradiction to move against a long legislative tradition of entrusting attributions to a single Branch (which does not exist in other latitudes), but with the intention of guaranteeing those horizontal controls in an independent Judicial Branch.” Therefore, if matters related to the pensions and retirements of the Judicial Branch were included as part of that economic independence of the Judicial Branch as a substantive issue since 1956, it is, for the undersigned, an additional reason to seek the application of Article 167 of the Political Constitution, since the change of scheme towards a deconcentration of the administering organ was eventually modified by a later law. This sets the bad precedent that, in the future, transitory majorities in the Legislative Assembly may venture into other aspects of the management of Judicial Branch personnel.

Another reason is that a reinforced majority guarantees not only judicial independence from the institutional point of view but also for the person of the judge, individually considered, whereby economic, social, and cultural rights, established through a social security and pension regime, are affected. It cannot be denied that the Judicial Branch forms part of a whole, the ‘State’; its strategic and key position within its organization must also be felt, with the public functions of its officials, which are highly specialized and attached to the Law, as described earlier in the background of this Court, and whose function is ultimate in the solution of conflicts and as pacifier thereof. This clearly has a cost and sacrifice for its personnel, which must be compensated by the ‘State,’ but more so in a functional democracy like Costa Rica’s, which must assume not only the economic part of its support but also its protection.

Judicial independence aims to guarantee judicial impartiality, which is shared with the majority of the Court, although not with the clarity that this minority would desire, considering that the problem of the reform to Article 177 of the Political Constitution crystallized the deeply felt need to protect in general terms the institutional framework and the administration—also—of everything relating to the personnel of the Judicial Branch, which should be jealously safeguarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed with, in the face of the regressive effects of legislation that may occur in the future. The constant rule of the importance of protecting the remuneration aspect and matters relating to the pension regime of judges and their officials, in the most important legal systems of the world, must be brought to the fore.

Thus, the undersigned magistrates consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the lack of consultation with the Judicial Branch on the text approved by Parliament by an absolute majority rather than a qualified one, which affects it in its entirety (Article 167 of the Political Constitution), by affecting its organization, structure, functioning, and independence; and, with this, it is contrary to the Law of the Constitution.

For the above reasons, it is irrelevant—for the undersigned judges—to proceed to analyze the rest of the substantive arguments made by the claimants against the essential content of the law, except in those cases where it was required to take a position so that there would be a fully concurring vote (article 60.2 of the Code of Civil Procedure), which is reflected in the majority judgment of this Chamber." In this manner, the undersigned judges Salazar Alvarado, Garita Navarro, and judge Jara Velásquez, record our dissenting vote.- Luis Fdo. Salazar A. José Roberto Garita N.

Rosibel Jara V.

**3.-** By resolution issued at 11:56 a.m. on November 8, 2021, the petitioner was warned that, pursuant to Article 4 of Law No. 3245 of December 3, 1963, they had to affix and pay for the Colegio de Abogados stamp corresponding to the authentication of the initial brief.

**4.-** Through a brief received by this Chamber at 1:26 p.m. on November 10, 2021, the petitioner complied with the previous warning.

**5.-** Magistrate Cruz Castro filed a motion to recuse himself, in his capacity as president of the Corte Suprema de Justicia, stating that he could be called as a party or intervenor in this matter.

**6.-** By resolution issued at 9:53 a.m. on January 4, 2022, the president of the Sala Constitucional ordered that Magistrate Cruz Castro be separated from hearing this proceeding. Likewise, the substitute magistrate who replaces him in accordance with Article 49 of the Ley Orgánica del Poder Judicial was declared qualified to hear this matter.

**7.-** Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to reject, either summarily or on the merits, at any time, even from its submission, any petition brought to its attention that proves to be manifestly improper, or when it considers that there are sufficient elements of judgment to reject it, or that it is the simple reiteration or reproduction of an equal or similar previous petition that was rejected.

Drafted by Magistrate **Castillo Víquez**; and, **Considering:** **I.-** **ON THE PETITIONER'S STANDING.** The petitioner has standing to bring this unconstitutionality action, pursuant to numeral 75, second paragraph, of the Ley de la Jurisdicción Constitucional, since the action is brought in defense of a corporate interest; specifically, in protection of the interests of the union's members.

**II.- OBJECT OF THE ACTION.** The petitioner specifically challenges Article 224 bis of the Ley Orgánica del Poder Judicial, added by ordinal 1 of Law No. 9544 of April 24, 2018, which establishes:

“*Article 224 bis-* ***Servers with twenty or more years of service in the Judicial Branch*** *may opt for early retirement if they do not meet the age or the number of years of service cited in the previous article. This shall be calculated as follows:* *a) If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement shall be calculated in proportion to the server's age:* *1) Women must be at least sixty years old and men at least sixty-two years old.* *2) The calculation shall be made by multiplying the pension obtained according to the provisions of Article 224 for the calculation of ordinary retirement, by the server's age, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement.* *b) If retirement occurs upon the server reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement shall be agreed upon in proportion to the years worked,* ***provided that the number of years served is not less than twenty*** *. To set it, the amount of ordinary retirement indicated in Article 224 shall be multiplied by the number of years served, and the product shall be divided by thirty-five; the result shall be the amount of the early retirement.* *(Thus added by Article 1 of Law No. 9544 of April 24, 2018)*” (the highlighting does not correspond to the original) **III.- ON THE MERITS.** In the *sub lite*, the petitioner questions that the cited Article 224 bis of the Ley Orgánica del Poder Judicial - added through Law No. 9544 of April 24, 2018 - requires, for the purpose of opting for early retirement from the Pension and Retirement Regime of the Judicial Branch (Régimen de Pensiones y Jubilaciones del Poder Judicial), that judicial servers have “*twenty or more years of service in the Judicial Branch*”, to the detriment of those persons who previously worked for other public institutions or dependencies. Especially since the Ley Orgánica del Poder Judicial itself, in its Article 226, provides that if a judicial server has “*contributed to other pension regimes established by another dependency or by another State institution, the Pension and Retirement Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial), at the time of granting the retirement, shall have the right to demand and the respective institution or dependency shall be obligated to transfer the amount of those contributions (worker, employer, and state) through an actuarial settlement*”. They consider that the principles of the State as single employer, equality, reasonableness, and proportionality are infringed, as well as the fundamental right to social security and retirement. They allege that, prior to the reform made to the Pension and Retirement Regime of the Judicial Branch, through Law No. 9544, only five years of service in the Judicial Branch were required; however, twenty years of service are now required, which was introduced whimsically, without a supporting basis or technical reasoning.

In which case, the first thing that must be indicated is that this Chamber has stated, in reiterated jurisprudence, that the existence of various pension regimes is not unconstitutional – including, specifically, the pension and retirement regime of the Judicial Branch -, with “*its special regulations – in an effort to guarantee the very existence of the regime, as well as its own administration-*” (vote No. 2020-02841 at 9:40 a.m. on February 12, 2020) and with its “*own rules and legal criteria for the granting of the constitutional right to retirement and pension*” (vote No. 2084-96 at 2:30 p.m. on May 7, 1996). Criterion reiterated, recently, in vote No. 2021-011957 at 5:00 p.m. on May 25, 2021, in which the constitutional validity of the existence of an exclusive regime for Judicial Branch workers was confirmed, as a special, independent regime different from the basic one, with its own eligibility requirements in order to guarantee its solvency and functioning. This does not imply an infringement of the principle of equality. It was resolved, to that effect, that:

"***XXXI.-*** ***Magistrate Hernández López continues drafting.*** *This Chamber recalls that the content of the principle of equality established in Article 33 of the Political Constitution means that it is forbidden to make differences between two or more persons who are in the same legal situation or in identical conditions, without being able to claim equal treatment when the conditions or circumstances are unequal, agreeing in principle, equal treatment for equal situations and making possible different treatment for different situations and personal categories. It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but to determine if a distinction is really justified, it must be analyzed whether the reason that produces it is reasonable, that is, if attending to the particular circumstances of the case, a diverse treatment is justified (see in this sense ruling No.* ***5061-94*** *at 17:34 hours on September 6, 1994). Hence, not in all cases should equal treatment be given disregarding the possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of an objective and reasonable justification, which compels an assessment of its purpose and its effects, in such a way that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality (see ruling No. 1770-94 at 9:18 hours on April 15, 1994).* *Based on the aforementioned, in the Chamber's opinion, the petitioners are not correct regarding this claim first because there are no evidentiary elements that the legislator's intention was directed at homogenizing the Retirement and Pension Regime of the Judicial Branch with the Disability, Old Age, and Death Regime of the CCSS, which is totally different in its nature, in the number of contributors, employer contributions, worker beneficiaries, etc., and because - even if that were true - the final result of the legislator is clear regarding its will that there be an exclusive regime for Judicial Branch workers, which is consistent with the inclination that emerges from the petitioners to maintain in force and protect their regime, as well as with the vocation of the superior authorities of the Judicial Branch and of the technical studies of the IICE themselves, to foster the necessary conditions so that the Retirement and Pension Regime of the Judicial Branch continues to function and is robust as well as solvent. Now then, it is clear to this Court that this decision to maintain a special retirement regime, independent and different from the basic one, entails an associated cost and originates consequences that must be assumed by its affiliates, which by the simple fact of being different do not necessarily imply discrimination, violation of the principle of equality, or the principle of unity of social security. From this perspective, the establishment of different contribution amounts and charges for the regimes, obligations or not to continue contributing after the right to retirement is acquired, and diverse conditions for a person to be granted the right, is the result of the need to take into account the particularities and plurality of factors related to labor conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits intended to be obtained upon retirement, or in attention to the social and economic policies that may intervene at a given moment. On this matter, the Chamber considers that, if the primary purpose of the constituent was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of regimes, as long as, as the Procuraduría indicated, criteria of equality are met regarding state contributions. In this way, it is constitutionally acceptable that a difference exists between the pension regime of the Caja Costarricense del Seguro Social and that of the Judicial Branch, because their promulgation responds to different needs and conditions that make their simple comparison inappropriate in terms of reductions, worker contributions, and benefit profile, without also weighing the differences between the number of contributors, caps, coverage of acquired rights, and other conditions that make them different.* (...)." Regarding the petitioner's substantive reproach itself, concerning the requirement of a minimum of twenty years of service in the Judicial Branch to be able to opt for early retirement, according to the provisions of Article 224 bis of the Ley Orgánica del Poder Judicial, it must be noted that this Court has already ruled on the constitutionality of said normative provision, in the above-cited ruling No. 2021-011957. In what is relevant, this Chamber, by majority, resolved that:

"***XXV.- Magistrate Hernández López drafts. On the reasonableness and proportionality of the eligibility requirements and benefits established in Chapter I “Benefits”, according to the reform operated by Law number 9544.-*** *To explain their allegation about the alleged violation of the principles of reasonableness and proportionality occurring with the issuance of the challenged law number 9544, some of the petitioners point out that the eligibility conditions and retirement benefits do not follow the technical studies that were contributed to the legislative file, while another part of them acknowledges that the Legislature relied on technical studies but disdained more suitable options, thereby affecting the reasonableness of its decision.* *In this regard, we have that the “benefits” chapter of Law 9544 incorporates the modification of the requirements under which judicial servers can obtain the right to retirement and its economic amount, as provided in Article 224 of that legal text:* “***Article 224-** Judicial servers with twenty or more years of service in the Judicial Branch may opt for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (IPC), defined by the National Institute of Statistics and Censuses (INEC), provided they have reached sixty-five years of age and have worked at least thirty-five years”.* *For its part, Article 224 bis regulates the conditions for obtaining early retirement, in the following terms:* “***Article 224 bis-** Servers 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 cited in the previous article is not met. This shall be calculated as follows:* *a) If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement shall be calculated in proportion to the server's age:* *1) Women must be at least sixty years old and men at least sixty-two years old.* *2) The calculation shall be made by multiplying the pension obtained according to the provisions of Article 224 for the calculation of ordinary retirement, by the server's age, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement.* *b) If retirement occurs upon the server reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement shall be agreed upon in proportion to the years worked, provided that the number of years served is not less than twenty. To set it, the amount of ordinary retirement indicated in Article 224 shall be multiplied by the number of years served, and the product shall be divided by thirty-five; the result shall be the amount of the early retirement”.* *The contrast between the current law and the previous one, on the topics addressed by the above-cited articles, yields the following:* ***a)** **Regarding age**, with the new (challenged) text the age for* ***ordinary*** *retirement is, at minimum, 65 years. In the text of the repealed norm, having reached 62 years of age was required as a minimum (repealed Article 224), which shows an increase of 3 years in terms of the minimum retirement age.* ***b)** **Regarding the number of years of service**, the new (challenged) text provides the obligation to have at least 35 years of service. In contrast, the repealed norm required having worked at least 30 years in the “public administration” (repealed Article 224). The general requirement for years of service was increased by 5 years, as can be seen.* ***c)** To this, it must be added that it is now required to prove 20 or more years of service worked within the Judicial Branch. In the previous text, it was required to have worked for the Judicial Branch for the last 10 years before retirement (repealed Article 231).* ***d)** **Regarding the amount of the retirement benefit.** In the new (challenged) norm, the gross amount of ordinary retirement is defined as eighty-two percent (82%) of the average salary of the last 20 years of ordinary monthly salaries earned in their working life. In contrast, in the previous legal text, the gross amount of ordinary retirement was defined as one hundred percent (100%) of the average of the last 24 best ordinary monthly salaries earned in the service of the Judicial Branch.* *On the other hand, regarding early retirement, the changes are summarized as follows:* ***a)** **Regarding retirement based on time of service:** the (challenged) text allows obtaining early retirement without having the required age (65 years) provided that the years of service (35 years) have been completed. That said, a minimum age is set for this type of retirement based on years of service, which differs according to sex, and which will be 62 years for men and 60 years for women. In the previous legislation, the possibility of early retirement upon completing the required years of service (30 years) also existed, without demanding a minimum age, and without making a distinction between men and women. (repealed Article 225)* ***b)** **Regarding retirement upon reaching the age.** The current (challenged) text also permits early retirement based on age, that is, without having the required time of service (35 years), but as long as the established age for ordinary retirement (65 years) has been met and - additionally - a minimum time of service of twenty years worked within the Judicial Branch is attained.* The prior legislation also contemplated this possibility of retirement based on age, for which it was necessary to meet the condition of being at least 60 years old and having at least ten years of service (repealed art 225) c) Regarding the amount of the early retirement benefit. For both cases of early retirement (based on years of service or age), the method of calculating the reference amount for the new method of calculating the gross retirement amount set forth in Article 224 of the challenged law.

Third, it is observed that the pensions of those who become permanently disabled have not been affected in their particular structure; rather, the disagreement is linked to the variation undergone by 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 the contingency will depend.

The petitioners warn that it is precisely with this reformulation of requirements and benefits established in challenged Articles 224 and 224 bis that the core problems which, in their view, Law 9544 contains begin, since the retirement age and the number of years the official must work are increased, while the sum they will receive as a retirement benefit is reduced relative to the salary they were earning upon retirement, to which is added the application of all legally established deductions, which means that the amount to be received is in many cases less than 55 percent of the last salary received, which is clearly ruinous. Thus, they point to a violation of the principles of reasonableness and proportionality, since—for some of them—the Legislative Assembly departed from technical criteria and chose to adopt a system lacking foundation or support, while another group asserts that, although technical criteria were considered, less harmful and more reasonable and proportional options that were raised during the course of the legislative process were set aside.

XXVI.- Justice Hernández López continues writing. The reporting parties called to this process indicated the following regarding the harm to the proportionality and reasonableness of the new design. The Office of the Attorney General of the Republic (Procuraduría General de la República) states in its report that the need to make the disputed changes to the Judicial Branch's pension regime derives directly from the actuarial studies on which said reform was based. In other words, increasing the retirement age and the number of years of contribution and reducing the economic benefits in favor of retirees was not a decision adopted at the whim of the legislator, but is the result of the regime's situation, which was reflected in the aforementioned actuarial studies, concluding that the changes made have the necessary technical support to affirm their conformity with Constitutional Law. It points out that the issue was already the subject of specific analysis by this Chamber in the legislative consultation of constitutionality that gave rise to ruling number 2018-5758, widely mentioned. Finally, it explains on this point that the new text of Article 236 of the LOPJ expressly provides that deductions may not exceed 55 percent of the gross amount of the established retirement or pension; all of this, added to the existence of technical studies upon which action was taken, means the modifications do not violate the principles of reasonableness and proportionality.

In the report submitted by the President of the Legislative Assembly, it was indicated: "It must be understood then, that the law under analysis does not respond to arbitrary or capricious criteria—a situation already analyzed by the Honorable Constitutional Chamber—and therefore does not entail any violation of the constitutional principles of reasonableness and proportionality," referring to the fact that the Special Commission that ruled on the bill took into account the referred technical study, as well as having the participation of the Technical Committee created by the Judicial Branch, and also referring to the fact that in ruling number 2018-005758 of 3:40 p.m. on April 12, 2018, the Chamber had noted that such technical studies were available.

The Vice President of the Supreme Court of Justice, in her report, indicates that in relation to the percentage established in Article 224 of Law number 9544, it is necessary to take into account that judicial employees, upon taking their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) with a worker contribution of 13% according to Article 236 of that same regulatory body, unlike other retirement and pension regimes; therefore, the amount of their retirement would be reduced, and other deductions must also be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), which establishes a commission for administrative expenses of five per thousand on the salaries earned by judicial employees, as well as on the retirements and pensions payable by the fund, which could be seen as confiscatory (Article 40 of the Constitution) or in violation of the principle of non-retroactivity of the law (Article 34 of the Political Constitution) given the existence of acquired and consolidated patrimonial rights under a prior law. The Vice President of the Judicial Branch also mentions that according to the report approved by the Full Court in session number 26-17 of August 7, 2017, article XXX, “(…) this Court has been and will be respectful of the technical studies issued to ensure the Fund's sustainability; however, it cannot be ignored that we are in the presence of fundamental rights, and that is why the reform also merits a study adhering to actuarial technique but also with a human rights perspective.” In that sense, it is worth highlighting that ILO Recommendation No. 43, “Recommendation concerning Invalidity, Old-Age and Survivors’ Insurance,” in point 13), subparagraphs a) and b), states that:

"(a) To guarantee the workers a secure old age the pension should cover their essential needs. It is consequently proper that the pension guaranteed to any pensioner who has completed a qualifying period should be fixed with due regard to the cost of living.

(b) In schemes where contributions are proportional to wages, insured persons who have in their account the contributions corresponding to the average duration of their active working life should obtain a pension corresponding to their social situation during their period of occupational activity. For this purpose, the pension guaranteed to insured persons who have completed 30 years of actual contributions should not be less than half the wage insured from the entry into insurance or during a specific period immediately preceding the settlement of the pension (Emphasis is ours)." It is therefore clear that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that the retirement and pension must satisfy the essential needs of persons in their old age, and therefore the amount must be fixed taking into account the “cost of living and social situation during the period of occupational activity.” That is to say, the standard of living that the worker had during their active working life must be respected.

The need to make reforms to the Retirement and Pension Fund to ensure its sustainability is not unknown, but these must be characterized by suitability and reasonableness, as indicated by the Constitutional Chamber in vote no. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring the cap on pensions established in Article 234 of the Organic Law of the Judicial Branch unconstitutional. The foregoing is consistent with what was stated by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case “Admissibility and Merits, National Association of Former Employees of the Peruvian Social Security Institute et al. v. Peru” (1), it outlined that the aforementioned Article 26 does not exclude the possibility of a State imposing certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis of the individual impact on the right (in this case to retirement and pension) in relation to the collective implications of the measure has been carried out.” XXVII.- Justice Araya García writes. This Tribunal considers that, as the Attorney General's Office and the Presidency of the Legislative Assembly point out, both the question of the absence of technical criteria to support the decisions of the reform made to the Judicial Branch's Retirement and Pension Regime, and the fact that a more favorable option for the fund's participants was omitted regarding eligibility requirements and the method of calculating retirement benefits, were already addressed when this Tribunal had the opportunity to analyze the legislative texts with the wording that ultimately became law of the republic. In ruling 2018-5758, which answered the cited constitutional consultation, the following was stated on that aspect:

“ XIX.-On the lack of studies to set the pension calculation. The consulting parties consider that Article 224 of the bill is contrary to Section 73 of the Political Constitution. They argue that the challenged article provides that the pension calculation will be obtained from the average of the salaries for the last 20 years earned by the worker, without having technical studies regarding what the real impact on the fund's reserves will be. They add that the study that served as a basis was the one issued by the University of Costa Rica, but in it, the limit for calculating the pension was set at the last 120 salaries (10 years), so they consider that the Special Commission overstepped in its assessments, since, without technical foundation, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. Likewise, they consider that it is illegitimate that the annual percentage of returns of the Fund's investments is taken as an absolute 3%, without considering that the actual returns were higher. Regarding the first of the allegations, the Chamber considers that, after analyzing the records, the alleged defect is dismissed, because at folio 2942 of the legislative file, official letter number IICE-186-2017 of August 18, 2017, is recorded, in which the director of the Institute of Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica endorses the parameter established by Article 224 of the bill, by mentioning, on this particular, the following:

“a. Reference salary for calculating the retirement or pension amount In Article 224 to be reformed, the Majority Opinion calculates the reference salary (SR) as the average of the last 20 years (SR20), updated with the consumer price index calculated by 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 for the last 20 years, adjusted for inflation, is 4.8% lower than the average salary for the last 10 years for new pensioners, given the merit scale in effect in the Judicial Branch. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulations, acts in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we will refer in the following subsection.

b. Worker contribution and benefit of the affiliates (…)

Now, the Majority opinion proposes a benefit of 85% of a reference salary of 240 months (instead of 120 months), with a worker contribution that, as commented, consists of a differential scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale were already noted, which, being left to the discretion of the Administrative Board of the Judicial Branch itself, also runs the risk of being set in practice closer to 11% than to 15%, which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between this contribution and the benefit that the fund's affiliates receive. In this case, the team considers that a single contribution of 13% (applied to active employees, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority opinion sets the employer contribution at 14.36% (Article 236, subsection 2), delinking it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by the IICE.” In that sense, upon verifying that, contrary to what is stated in the initial brief, a technical criterion does exist that endorses the parameter set by the bill with respect to the reference salary for the pension calculation, the Tribunal dismisses the existence of the alleged defect.

On the other hand, regarding the second of the allegations of the consulting parties, the Chamber considers that, at bottom, what is questioned is whether the parameters that served as a basis for setting the requirements to obtain the right to a pension were the most suitable or not, an extreme that does not imply that the rule is unconstitutional, as the consulting parties consider; hence, the defect is considered nonexistent.” In a similar manner, it had been previously stated in the same ruling:

“XV.- On the alleged violation of the principle of judicial independence. (…) The Chamber considers that the foregoing complies with what is established by international doctrine, in the sense that it is the public authorities who bear the burden of proving that the cutbacks are justified in light of the set of socioeconomic rights, and that if an administration needs to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects that these may have on the rights of those affected and on the regime, as well as that there are no less burdensome measures that could have been taken, a situation that is fulfilled in this case, taking into account the analyses carried out by the University of Costa Rica in the actuarial studies of the Judicial Branch Retirement and Pension Fund. (…) Thus, in light of the foregoing, the Chamber does not consider that the alleged defect exists.” And it added a little further on:

“XVII.- On the changes in the requirements to obtain 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 official must work are increased, but the percentage of money they will receive as a pension relative to the salary they were earning is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the right to a pension may do so under the provisions established by Law No. 7333. The challenged norms provide the following: (…) It should be noted that the right to retirement is not unrestricted, as it may be subjected 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 legislator has the power to establish restrictions on the right to retirement when it can be proven that certain situations exist that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such. On this particular, in vote number 2379-96 of 11:06 a.m. on May 17, 1996, the following was established:

(…)

Now then, from the foregoing it clearly emerges that the right to retirement, like any other fundamental right, can be subjected to limitations. The foregoing entails that a person does not have a right to retire under specific conditions, as these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, since otherwise, conditions could be created that make the system financially unsustainable, which would ultimately mean that the right to retirement is severely affected, or that its exercise is not entirely possible, given the inexistence of funds that prevent the payment of the amount of the interested party's retirement. Faced with this panorama, the Chamber considers that the challenged norms are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Judicial Branch's Retirement and Pension Regime, for which purpose parameters and requirements were set based on the opinion of experts that were received by the Special Commission that ruled on legislative file number 19.922, as well as technical studies that verified the existence of a problematic situation that could affect the sustainability of the mentioned Regime, and for which they issued a series of recommendations. In that sense, upon verifying that the variation of requirements provided by Section 224 and the period set by Transitory Provision VI of the bill have as their ultimate purpose to guarantee the right to retirement of judicial employees, the Chamber dismisses the alleged defect.” (ruling 2018-5758).

In view of the foregoing, and given the lack of novel convincing elements provided by the petitioners on these aspects, the Tribunal considers it proven—first—that the unsustainability of the Judicial Branch Retirement and Pension Fund was a real fact at the time when both the Supreme Court of Justice and the Legislative Assembly decided to initiate a reform process for the institution's retirement regime, supported by a technical assessment that operated as technical input to address the financial problems threatening the Fund. Second, the Chamber reaffirms what was stated in ruling 2018-5758, in relation to the constitutional validity and 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 legitimate constitutional framework of the legislator's action in retirement matters, as explained in said text. Third, what was stated in ruling 2018-5758 is also reaffirmed regarding the existence of adequate technical support underpinning the text that ultimately became law of the republic, insofar as the final parameters established were technically endorsed, as explained in detail in the recently cited ruling 2018-5758.

XXVIII.- Justice Araya García continues writing. Notwithstanding the foregoing, the petitioners reiterate the lack of constitutional reasonableness and proportionality of the decision taken and specifically maintain that the technical report offered legislators more favorable options for the economic interests of the fund's participants that left the purpose of the legislation intact, but despite this, said option was not enacted into law, thereby violating the condition of suitability that forms part of the constitutional reasonableness parameter. On this particular, the Chamber observes that the Judicial Branch formalized Agreement R-CONV-005-2016 with the Institute of Research in Economic Sciences (IICE) of the University of Costa Rica to carry out an actuarial study to determine the solvency of the Judicial Branch Retirement and Pension Fund. In what is relevant, clear and compelling evidence emerged from said study about the unsustainability of the current configuration of said fund, and for that reason, four proposals for new “normative frameworks” (IICE frameworks 1, 2, 3, and 4) were offered as a technical exercise to assess different possibilities for rearranging the variables affecting the operation of the pension regime in question. Of these, according to the technical study itself, numbers 1 and 2 do not meet solvency and sustainability characteristics and were included to show how the different values of the variables affected the final result.

For that reason, and as the plaintiffs point out, the technical report recommended to the Assembly two technically viable possible combinations: the IICE 3 framework and the IICE 4 framework, for the modification of the regime; however, the Chamber does not share the interested parties' conclusion that the foregoing implied, for the legislator, an exclusive choice between those two alternatives: first, because neither of them aspired to be "the best possible option" but rather were presented only as viable options for 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 occurred, as will be discussed); and third, because the choice of either of the two options (IICE 3 or IICE 4) or the construction of a different one, necessarily imposed on the legislators an exchange and balance between the different variables related to contributions, eligibility conditions, and benefits to be received. Thus, for example, on the same shared base of general eligibility requirements (65 years of age and 35 years of service); the method of calculating the reference salary (average of the last 10 years worked); the existence of a maximum retirement payment cap of 10 times the base salary of the Judicial Branch; and a solidarity contribution for those receiving high retirement benefits, the IICE3 framework proposed, for an ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a worker contribution (contributions from active and retired workers) that was lower (on the order of 11%), while the IICE4 framework proposed delivering a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution (on the order of 15%). Faced with this state of affairs, the option adopted by the Legislative Assembly is not arbitrary, since it consisted of constructing—with the technical elements provided—an intermediate proposal between the originally recommended IICE3 and IICE4 frameworks. That is, on the same common base of requirements of the cited frameworks, regarding conditions of age and service; the cap on the retirement amount; and the establishment of a solidarity contribution for retirement benefits above the latter, the Assembly defined, for ordinary old-age retirement, a retirement payment of 82% of the reference salary (9 and a half percentage points higher than the 72.5% proposed in the IICE3 framework, but 3 percentage points lower than the 85% set in the IICE4 framework). Likewise, the worker contribution percentage was set at 13% (that is, 2 percentage points more than the 11% of the IICE3 framework, but 2 percentage points less than the 15% established in the IICE4 framework). It should be noted that similar considerations can be made regarding the cases of early retirement and disability pensions. However—and this is where the arguments of several of the appellants seem to focus—the Legislative Assembly changed the formula for calculating the reference salary, setting it as the average of the last 240 salaries (20 years worked) compared to the average of the last 120 salaries (10 years) used in the IICE3 and IICE4 frameworks; this change implied, according to the technical authority itself, a decrease of 4.8% in the average salary that would serve as a reference for setting the retirement payment.

With this picture, it must then be determined whether such a set of actions by the Assembly falls within the realm of the unreasonable because they are unsuitable, and the conclusion of the majority of the Court is that the alleged defect is nonexistent, since it was precisely an intermediate choice between the two recommended frameworks, a choice regarding which it has not been demonstrated that it implied a substantial and relevant worsening of the conditions of the fund's participants, compared to those offered in the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this case file precise and reliable data to affirm that—all conditions considered—a technical option existed available to the legislator that would generate the same sustainability guarantees sought for the fund, while simultaneously offering clearly and overwhelmingly higher levels of protection for the fundamental rights at stake. To this must be added the fact that, precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in its judgment, is the one that best adapts to the pursued state purpose. That is its task as representatives of the people, and this Chamber should not substitute that competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund. Finally, it bears repeating that the normative proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which noted the technical propriety of that finally adopted design through report IICE-186-2017, found at folios 2942 and following of the legislative record, as explained in ruling 18-5758 of this Chamber, cited above.

As indicated in Considerando VI of this ruling, the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE), in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. It particularly points out, regarding the project approved by majority opinion, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution of 50%, the worker contribution with a differentiated scale, and the early retirement age with differences by gender, act in favor of the actuarial solvency of the fund. Meanwhile, in the case of the minority opinion (folios 2945 and following, same volume), which was in favor of:

* Using a lower reference salary, calculated as the average of the last 10 years adjusted by the CPI. On this point, it indicates that this calculation method is less favorable for the actuarial solvency of the fund, and that its effect must be analyzed in conjunction with other characteristics and parameters, such as age for ordinary or service-based retirement, worker contribution, and solidarity and transitional contributions. * 85% of the reference salary with a worker contribution of 11%. In this regard, it points out that the 11% worker contribution should be associated with a retirement or pension that does not exceed 72.5% of the reference salary calculated with the last 120 salaries adjusted by the CPI, in order to maintain actuarial solvency. * It proposes an age of 62 for men and 60 for women, and no minimum age is established for early or service-based retirement. In this regard, it is noted that, in this scenario, even with a contribution of 15% on salaries, retirements, and pensions, the fund becomes insolvent if a benefit of 85% of the reference salary is maintained. It adds that "the analyses conducted by the IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous test of actuarial solvency." It specifically points out:

" i. If the worker contribution is kept at 11% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 3 trillion colones, and the actuarial insolvency would exceed 30% of the promises. ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 1.7 trillion colones, while the actuarial insolvency would exceed 17% of the promises." * Solidarity contribution of 20% on the excess over the maximum cap defined for retirements and pensions, set at 10 base salaries. This percentage may be increased to 50% "if so recommended by an actuarial study and approved by the Administrative Board of the Fund." Regarding this proposal, the IICE points out that by reducing the contribution to 20%, part of the equalizing effect of said contribution is lost. * Transitional Provision V. The Transitional Provision V proposed by the Minority Opinion extends the benefits of the current law for an additional 10 years beyond the 18 months recognized as a vested right; although the benefit is established as 100% of the reference salary of 120 salaries adjusted by the CPI, the transitional provision does not contemplate graduality, so its effect on solvency approximates that of the transitional provision of the Plenary Court's project, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less graduality, it is less favorable relative to Transitional Provision IV of the Majority Opinion in terms of its incidence on the actuarial solvency of the fund. * Employer contribution. It proposes that the Judicial Branch's employer contribution (currently 14.36% of the salaries and wages of the members) "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 previous clause completely inadvisable." "The position is that the guarantee of solvency should not rest on the state contribution, thus avoiding a further deterioration of the country's already delicate fiscal situation." * Credit operations: It proposed authorizing the Administrative Board to conduct credit operations with the Fund's income, either directly or through a financial institution. On this topic, the IICE team stated: "...the eventual participation of the fund in credit operations must be analyzed with extreme care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which entail expenses and also risks that must be adequately assessed." Following these observations and the legislative discussion, modifications were made to the bill, in most cases, to adapt them to the criteria issued by the IICE, and in others, to incorporate positions expressed during the legislative discussion.

The plaintiffs claim that there cannot be regressive measures in economic, social, and cultural rights, among which pension systems would be included. However, as the Committee on Social Rights of the Council of Europe and other Constitutional Courts, such as Colombia's, have indicated, it is possible to adopt regressive measures in the field of economic, social, and cultural rights (ESCR) when they pursue a legitimate and relevant aim, such as the improvement of another right or the general level of service coverage that guarantees their effectiveness, or when they serve to avoid more burdensome measures and are technically supported. Thus, the constitutional conformity of measures that cut back or modify pension conditions requires that, prior to the determination and as an inescapable part of its foundation, there must be technical support regarding the effects of the measures, and those affected must have been heard because it concerns income they currently receive, as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.

In accordance with Inter-American doctrine and jurisprudence, in cases of regressivity of ESCR, it is necessary to verify the legitimacy of the purpose that the norm seeks to achieve, whether the restriction of rights is "suitable" or "adequate," subsequently whether it is "necessary" or "indispensable," and, finally, whether it is "proportionate" in the strict sense or "weighted." The purpose that the norm seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important purpose. The norm in question "(...) cannot have just any purpose, but must be aimed at protecting values that have express constitutional support, either because the Constitution considers them objective values of the legal system (...). This means that these measures must not only be admissible but must seek the realization of constitutionally important objectives." Likewise, it must be verified whether the means provided in the norm to achieve the pursued purpose are adequate or not to effectively achieve that purpose or, in other words, "(...) the protective effect of the measure in relation to the interest or value to be favored must be clearly demonstrated." There must be no other means to achieve the pursued purpose with the same effectiveness that are less onerous in terms of sacrificially affecting the 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 extent, the constitutional principles affected by the use of those means." What is sought in this step is to verify that the reduction or deterioration in the legal patrimony of individuals, that is, the affectation of constitutional principles and rights, is not greater than the benefit that this affectation is capable of generating. In the words of the Inter-American Court, it must be verified whether "(...) the restriction of the affected rights is equivalent to the benefits that the provision generates.

If the harm produced on the legal patrimony of citizens is greater than the constitutional benefit that the norm is capable of achieving, then it is disproportionate (...)".

The Inter-American Court has also held that in economic matters, and more specifically in matters related to budgets and resource appropriation, the legislator has broad freedom of configuration, which is why, in these cases, any proportionality judgments made must have a low intensity, which is precisely the category of rights under analysis.

As is proven from the legislative record, the pension system of the Judicial Branch had an actuarial deficit of more than 5 trillion at the time of the legislative discussion, which **endangered the patrimony of all the collective and passive affiliates that make up the pension regime of the Employees and Officials of the Judicial Branch and the public finances**, since the State would have to budgetarily assume that deficit at a precarious time for public finances. That is, there was not only a legitimate need to intervene, but a legal obligation to protect the balance of the fund, upon which thousands of people and families depend, and also the adequate safeguarding of public finances.

By way of example, what was indicated by Dr. Max Soto Jiménez of the Economic Research Institute of the University of Costa Rica (folio 1321) and part of his team, advances to the Commission that within the findings, the Institute for Research in Economic Sciences of the University of Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of the accumulated reserves and is 36% of the present value of the entire liability of the regime, and that the substitute text being discussed in the Commission is insufficient to guarantee the sustainability of the Judicial Branch pension regime (see folio 1352, volume 7, legislative record).

Likewise (folios 2274 and 2275, volume 10), the intervention of Dr. José Antonio Cordero Peña of the IICE appears, in the same sense regarding the seriousness of the fund's situation and the need to take measures:

"In reality it is evident that the fund at this moment is insolvent... If we continue as things are at this moment, what will happen is that the people who retire in the coming years will eat up the fund's resources of future generations and, how curious, as we are all so long-lived, they will also eat up the funds of those who will finance them when they are ninety years old, when they are ninety, ninety-five years old, someone will have to come and tell them, look, you know what, your pension will no longer be feasible, similar to what happened to some members of private pension funds in Chile." This situation was recognized not only by the actuarial report of the University of Costa Rica, but years before by the cited Melinsky report, and by the Judicial Branch authorities themselves during the hearings, as well as the Judicial Branch unions themselves that participated during the legislative process and also formed part of the Judicial Branch's technical teams that participated in the preparation of the IICE's 6 products and endorsed the recommendations of the studies, now challenged in this action.

Indeed, as indicated in Considerando VI of this ruling, in Agreement R-CONV-005-2016 signed between the Judicial Branch and the University of Costa Rica, **it is recorded that the unions or trade unions of the Judicial Branch would have a representative on the Executive Team**, (folio 689 and 1154). In an appearance before the Commission, Licenciado Hernández Solano stated:

"For the first time in an actuarial study, representation is given to the workers, on this occasion with the UCR study, for the first time. There is a technical committee within the Judicial Branch and a technical committee within the UCR, **they are the ones who analyze all parts of the five phases of the UCR-Judicial Branch agreement. The Executive Committee within the Judicial Branch is the one that endorses each phase, tests it, makes consultations with the Technical Committee, and at the end of the day, we give approval**". (highlighting not in original) "On behalf of the institution, there is an executive team... The Head of the Financial Accounting Department of the unions is there, forming part of this technical team. Why does the institution make that decision? Well, because experience had shown us that in previous processes, the unions' challenges to the study only came at the end of the study, and then we entered into unhealthy internal conflict. In this way, we considered it important to incorporate the union representative as part of this executive team, and he actively participates and reviews the products, as part of the rest of the team that is formed." (folio 1325, volume 6 of the legislative record) There, the conditions of each product were agreed upon, and the agreement was communicated to the Special Legislative Commission responsible for hearing and reporting on the bill "Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, legislative file 19, 222" (folio 775, folio 4, legislative record) "**In the process, observations were made; I even want to tell you that the Judicial Audit Office also participated in this review process, and there were observations from Mr. Arnoldo, at the time union representative, and from the Audit Office, they were forwarded to the IICE, they gave us a response, in some cases they corrected the products because this process occurs in a preliminary version for discussion or assessment, and then, satisfied with that correction, approval and endorsement were given**." (folio 2335, volume 10, legislative record) (highlighting not in original) At folio 843 of the legislative record, the previous actuarial study from Melinsky, Pellegrinelli y Asociados S.A. is provided, which at folio 939, among its recommendations, points out that by the year 2026 a critical year is visualized, with a significant actuarial deficit of 50% of the constitutive capitals of the benefits in force. It indicates that "substantive and effective measures are required aimed at reducing the actuarial deficit and substantially postponing the critical year." It adds that in order to take adjustment measures, it must be kept in mind that this is an ongoing pension regime where the following concepts must be made compatible:

* *Benefits in progress (Beneficios en curso)* * *Time of service rendered by active employees* * *Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, required average equilibrium premium) (Actuariales (reservas matemáticas requerida, déficit operativo, déficit actuarial, año crítico, prima media requerida de equilibrio))* * *Legal (Legales)* * *Contributory capacity of the members* * *Budgetary capacities of the Judicial Branch* * *Budgetary capacities of the Executive Branch* It adds: “any legal analysis must take into account that the adjustments indicated are necessary for the purpose of improving the situation of actuarial deficit and critical year, which implies an Institutional Risk *that endangers the assets of all the active and passive collective members who make up the pension regime of the Employees and Officials of the Judicial Branch*. (the highlighted portion is not from the original) “That is to say, the basic legal element to consider is that the individual rights recognized by current law must be considered rights in expectation, subject to the collective right regarding the feasibility of the benefits for the mass of members, not only in terms of its impact within the sphere of the Judicial Branch but also due to its potential effect on the National Budget.” In the appearance of the Executive Director of the Judicial Branch (volume 1322 et seq., volume 6 of the legislative file), she points out that since the last actuarial study by Melinsky, the actuarial deficit situation went from 2.48 million million “to a scenario approaching 5 thousand million million.” To the question from Deputy Piszk Feinzilber: “Would I understand correctly, if I interpret that the situation is worse than we had imagined?”, the Executive Director's response is: “Yes. Four years have passed from 2012 to date. Decisions have not been made and the situation has worsened.” (folios 1338 and 1339, volume 6 of the legislative file) Deputy Piszk Feinzilber adds:

“What I want is for it to be very clear here that our concern is based neither on a whim” … but on the fact that it is abundantly clear that as long as decisions are not made, the situation is going to keep worsening.” “I know, and we had even committed to waiting until there was a complete actuarial study to make the decisions regarding—I don't know if the correct word is numerical or not numerical, but regarding contributions, but well, I believe it is abundantly clear that there is a concern on our part, that the Court must be aware that here, well, it is all Costa Ricans who are going to have to pay, if this thing keeps dragging on, and from that point of view, we obviously, as legislators, who have to make a decision…” (folio 1343, same volume) In the same vein, Deputy Guerrero stated: “To reiterate what Álvaro Ramos said. This is not an issue against, it is in favor of the working class. That substitute text improves, but does not sustain the health of the regime. A regime that is going to end up on the national budget of the Republic, if health is desired, a regime that moreover does not guarantee the pension expectation of the people who are currently contributing, or they will have to contribute double; the same as the employer and the same as the State. That is, it goes to the central budget…” (folio 1754, volume 8, legislative file) On the other hand, as indicated above, the majority of the Chamber estimates that, given the proven public necessity and legitimacy of the authorities' intervention, the means provided in the challenged regulations to achieve the pursued goal are adequate to effectively achieve said goal. As indicated above, the Institute of Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas, IICE), in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. As explained, the legislator adopted an intermediate choice between the two recommended frameworks, a choice regarding which it has not been demonstrated that it implied a substantial and relevant worsening of the conditions for the fund participants, compared to those offered in frameworks IICE3 or IICE4, this because, as explained, what occurred was an exchange of some advantages for others, always within the limits established in the frameworks proposed by the technical entity, and without there being in this file other technical studies or expert reports of the same level or equivalent that, with precise and reliable data, allow the assertion that –assessing all the conditions and not only the chosen ones– there existed a technical option available to the legislator that would generate the same sustainability guarantees sought for the fund, while at the same time offering clearly and convincingly higher levels of protection for the fundamental rights at stake. Precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing –within the space offered by the technical framework, but also based on reasons of convenience and opportunity– the regulatory structure that, according to its criteria, turns out to be the one best suited to the state's pursued goal. That is its work as representatives of the people, and this Chamber must not substitute such competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). As the Inter-American Court has rightly pointed out, in economic and budgetary matters or resource appropriation, the legislator has broad freedom of configuration, which is why in these cases, any proportionality judgments made must have a light intensity, which is precisely the category of rights under analysis, where a balance must be sought between individual and collective rights to overcome the danger that existed of affecting the assets of all the collective members who make up the pension regime of the Employees and Officials of the Judicial Branch, putting at risk the sustainability of current and future beneficiaries and potentially the finances of the State, which would have to assume the present and future retirees and pensioners if the regime failed to be balanced.

The claimants provide a series of examples of hypothetical impacts regarding how disproportionate the measures are for various sectors, but they do not provide an actuarial study that would allow refuting the one existing in the legislative file, which does take all the variables at play (not just the selected ones), which must be assessed comprehensively. Likewise, with the actions filed, they seek to return to the scenario prior to the reform, a scenario technically discarded expressly by the IICE in its various studies *and which does have the capacity to affect or endanger the sustainability of the Judicial Branch pension regime*, as proven by the Melinsky study and that of the University of Costa Rica. Likewise, the **evidence for a better resolution (prueba para mejor resolver)** **requested by this Chamber** from the Administrative Board of the Judicial Branch Pension Fund (see judicial file), demonstrates that the measures adopted by the legislator have been suitable for restoring solvency to the Fund, which has had a substantial recovery in the years the challenged regulations have been in force.

In conclusion, in the judgment of the majority of this Chamber, the Legislative Assembly did not infringe upon the constitutional principles of reasonableness and proportionality by taking elements from regulatory frameworks IICE3 and IICE4 and from the appearances of the authorities of SUPEN and the Ministry of Finance, and constructing with them a regulatory framework to adjust all the needs at play and fulfill the purpose of remedying the acknowledged problems suffered by the Judicial Branch Retirement and Pension Fund and thus avoid more serious damage to the interests of the members and the public interest, such that on this point the action must be dismissed. Even at the time of issuing this judgment, it has been verified that the regime's actuarial deficit has been significantly reduced, demonstrating that the measures adopted were necessary, proportional, and suitable.” Subsequently, in that same vote, the following was stated:

“**XXXII.- Drafted by Judge Araya García. Regarding the impact on the fundamental right to retirement derived from the changes in the eligibility conditions in Chapter I “Benefits” of Law 9544 for Judicial Branch workers to be able to retire.** On this point, the claimants argue that the fundamental right to retirement is being rendered nugatory by having increased the retirement age, especially by now requiring a minimum of 20 years of service in the Judicial Branch to be able to retire under the Judicial Branch regime, as in many cases, judicial employees would be forced to work beyond the age of 65 to be eligible for a retirement. Additionally, they explain that, with the reform, it is not just that the time of service in the Judicial Branch has been extended by 5 years –from 30 to 35 years–, but that particular situations are being generated that they consider harmful to fundamental rights: **a)** For example, a person who began working for the Judicial Branch at age 20, in order to retire according to the requirements established in Law 9544, must now work 45 years, greatly exceeding the 30 years of contribution indicated by ILO Conventions 102 and 128; **b)** Given that it is now required to have at least 20 years of service in the Judicial Branch but also to complete 35 total years of working in the public sector, any person who begins working for the Judicial Branch after the age of 46 could only receive a pension after surpassing the age of 65; **c)** In the case of a Judicial Branch worker who died before completing those 20 years of minimum service in that institution, the beneficiaries could not opt for an orphan's or survivor's pension because that requirement is not met; **d)** New rules for obtaining retirement cannot be imposed equally on a person who is 5 or 10 years from retiring and on a person who is just starting work or is 30 years from retiring at the time a reform takes effect; **e)** The Law prior to 9544 established that upon completing 30 years of service –which implies an amount exceeding the 300 contributions required by the IVM regime of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social)–, the person could request early retirement regardless of age, for which reason they had been working and projecting their life into the near future, but now, by changing the retirement system so drastically, that same person will have to complete 5 more years of service but also reach the age of 65 to obtain a full retirement –now greatly reduced– since early retirement seems not to be an option because it considerably reduces income; **e)** In the case of a Judicial Police Officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker –just to give some examples– who before could retire upon reaching 55 years of age after 30 years of service, they are now must be forced to work ten more years to reach 65 years of age, even though their daily work carries an enormous emotional burden, which could affect –in an extremely negative way– the new scenario to which they are being abruptly subjected by having to work 10 more years. The claimants argue that all these changes, and others arising from the application of Law 9544, were made without technical-scientific studies, not of an accounting type like the IICE products, but of a demographic and sociological type that would make it possible to determine with certainty the possibility that Judges of all the matters processed by the Judicial Branch, as well as Judicial Police Officers, administrative personnel, Prosecutors, Public Defenders, among others, can continue working –by having to extend the years of service to retire due to the reform–, without affecting the public service, but above all without causing damage to their physical and mental health. Here they emphasize that many of these judicial employees, being very close to obtaining their retirement, already had a retirement plan for which they had been preparing for several years and now, with the reform, they have to modify it, these claimants considering that this harms the expectation of finishing a judicial career. They add that, in addition to the above, for the cases of people who will have to work beyond the age of 65 in order to obtain the right to retirement, there is non-compliance with what is indicated in Conventions of the International Labor Organization stating that the retirement age cannot be exceeded beyond 65 years, as provided in ILO Convention No. 102 in its article 26, subsection 2, as well as Convention 128, also of the ILO, in its article 15, which, in pertinent part, states:

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

3. If the prescribed age is equal to or higher than sixty-five years, that age shall be reduced, under prescribed conditions, for persons who have been working in occupations deemed by national legislation as arduous or unhealthy for the purposes of old-age benefit.” **XXXIII. Drafted by Judge Araya García.** On this matter, there is no specific criterion issued by the Procuraduría, which in its report reiterates the power of the legislator to make the necessary adjustments so that pension funds are sustainable and can thus provide the promised benefits to all their participants. The same occurs with the Legislative Assembly, which considers that the decision taken was based on the technical studies provided. The Supreme Court explained that on this matter it refers to what was indicated to the Legislative Assembly within the legislative file, in the sense that all these changes represent a disincentive for the entry of valuable professionals to the Judicial Branch who, considering the economic outcome of a future assessment, would prefer to pursue their professional career in another work environment, as the judicial, prosecutorial, Public Defense, and general staff career is affected. In addition to that, it pronounced by indicating that the renewal of the personnel that manages to remain in the Judicial Branch will be affected, such that there will be elderly officials who will keep working only out of necessity and due to the decrease their income would suffer if they retired; the judicial population will be at a crossroads because it has the desire to opt for retirement and the motivation to retire to rest, but it is placed in a condition where it must assess its economic situation. It further argued that all of this reduces the competitiveness of the Judicial Branch in the labor market and this will impact the quality of the Administration of Justice. It also considered that the regulation of the Judicial Branch Retirement and Pension Fund should not be assessed solely from the economic perspective because fundamental, inalienable rights are at stake, associated with a working person who, during their years of service, has contributed to a regime with the expectation of having a dignified retirement that would allow them to meet their needs and enjoy quality of life in their retirement years, but now, the imposition derived from the new law will affect vulnerable population groups despite the fact that it involves a collective that requires greater protection from the State.

**XXXIV. Drafted by Judge Araya García.** It is stated that the reform has imposed on the present and future participants of the fund a set of eligibility conditions that severely hinder their possibilities of enjoying an adequate retirement when they cease their work as judges, police officers, prosecutors, defenders, and judicial workers in general. In this regard, the Court notes that the allegations of injury to the right to an appropriate and fair retirement are built by making a comparison between the previous system (which the claimants seem to endorse) and the system introduced with Law 9544. Therefore, it is worth recalling what the changes were that –in terms of eligibility– the regime underwent with the regulatory change, starting with the ordinary retirement, whose age was increased by 3 years and the years of service which increased by 5 years; the quantity of those years that must have been worked for the Judicial Branch was also modified, changing from "the last 5 years" (repealed article 231) to a minimum of 20 years worked within the Judicial Branch. Regarding early retirement, the changes are summarized as follows: early retirement with proportional payment due to completion of years of service was varied, going from 30 years of service to 35, provided that a minimum retirement age is met, set at 62 years for men and 60 years for women; similarly, early retirement with proportional payment due to reaching a certain age was modified, going from 60 years and at least 10 years of service (repealed article 225) to 65, with a requirement of at least 20 years of service in the Judicial Branch according to the text currently in force. Moreover, the amount of the retirement payment was adjusted downwards, going from 100 percent of the average of the last 24 salaries to 82 percent of the average of the last 240 salaries.

Regarding such variations, the claimants elaborate a series of examples of situations they consider unfair and contrary to international regulations, but the truth is that the examples presented are not sufficient to make a decision to annul the norm as requested, because it so happens that real and current data are not provided by age profile at entry to the Judicial Branch so as to verify, for example, what the behavior of the fund participants has been regarding the use of the early retirement figure, or whether the case of the person who enters the service of the Judicial Branch at age 46 occurs with sufficient frequency to conclude that the system, as a whole, becomes openly unjust by requiring them specifically more years of service in the Judicial Branch; likewise, nor regarding the years of service, are the technical data capable of refuting the actuarial report provided, data which would suggest that a large number of people would have to remain well beyond the age of 65 to meet the 20 years of effective service within the Judicial Branch. It is also not valid to compare the supposed expectations of reaching an early retirement under the previous law with the conditions for acquiring ordinary retirement under the new regime, because this is inconsistent as they are qualitatively different cases. It cannot be lost sight of that the logic currently underpinning pension regimes such as the one under analysis aims to achieve –over time– sufficient economic conditions to provide protection to participants when their working capacity is affected by the effects of old age or another contingency; and that is the reason why state authorities must set parameters that ensure sufficient use of labor and productive potential and the assurance of dignified conditions for when that potential declines due to age. Thus, for the Court, the centrality of this issue lies in the fact that the modifications to eligibility in the different modalities respond to a need for compromise between the particular conditions of the work carried out by the Judicial Branch and the need for the pension system for the protection of its employees when they reach old age to be financially sustainable as a whole, over time.

As stated, the Chamber shares the thesis that the creation of a separate retirement regime for the Judicial Branch has been a key element in the significant role this body has played within the social and democratic rule-of-law State in our country; however, this cannot serve to petrify a situation that, as has been demonstrated, financially threatened the stability of the Judicial Branch fund, the rights of its beneficiaries, and the Costa Rican State itself, which has provided a good part of the funds to build said regime. Thus, in the face of the economic emergency that demanded a modification, the changes made represented—for the generality of participants who have pursued a judicial career and aspire to an ordinary retirement—a delay of 3 years compared to the requirements of the prior law, and a delay of 5 years in the vast majority of other cases, for those aspiring to an early retirement. As is clear, the design could not take into account all possible particularities that may arise in specific cases, but as indicated, in the generality of cases, the modifications of 3 and 5 years respectively are supported by technical studies, and for the generality of people, they do not represent a sharp worsening of their eligibility situation. It is clear that the general hypothesis proposed by the plaintiffs, that judicial workers in general and solely by the fact of working in that institution are subjected to a burden and wear and tear clearly differentiable from other groups of workers, is not supported by evidence provided in the case file, nor is there a demonstration that the examples offered reach such a degree of repetition that they affect the overall fairness of the system with such magnitude that it can be said that fundamental rights of the generality of its participants have been harmed, which does not mean that there are not groups within the generality of workers that do require special measures due to the type of work they perform, but this requires 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, besides being a comprehensive study, is a study that evaluates the effects over a 100-year period of the analyzed variables. The Chamber considers that specific examples, without projection or comprehensiveness, do not carry enough weight to refute technical evidence of this magnitude. To be able to refute this evidence, an equivalent actuarial report is required.

Let us add to this that the original design that was modified by Law 9544 dates back to 1993, that is, from a date prior to the substantive paradigm shift that occurred with the enactment of the Worker Protection Law number 7983 of February 16, 2000. With this latter norm, the general pension design of the Costa Rican State for the protection of working people in their old age was rethought, and a three-pillar system was established, the first being the basic pension regime (in this case, the Judicial Branch Retirement and Pension Fund), financed on a tripartite basis between the worker, the employer, and the State; a second pillar constituted by a complementary pension regime of an individual account financed by the worker and the employer; and finally, a third pillar made up of the worker's long-term savings plans. Thus, this complementarity freed the basic regimes from the task of providing, on their own, broad and complete benefits, since the needs of retirees will be met with resources from the three aforementioned sources. For this reason, and in light of the need to review the characteristics of the basic regime applicable in the Judicial Branch to achieve its sustainability, the attempt to adapt it to the new system makes sense, so that the final sum of all the pillars can achieve sufficient economic benefits to attain a basic dignified retirement and that—depending on the effort made by the interested party—it can be supplemented to more or less resemble the standard of living enjoyed during their active working life. In this way, a possible confirmation, in some specific case or small group of cases, of some gap or an apparently unjust solution due to incompleteness, within this basic regime and its normal operation, cannot—by itself—become a reason to dismantle the entire structure without also duly verifying at the same time—which the plaintiffs have not done—the impossibility of the general social security system, as a whole, to provide a solution that appropriately addresses the rights of those affected. In conclusion, it is appropriate to dismiss the claim raised, given that the changes in eligibility conditions have not been technically proven to have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age. In fact, had the reform not been carried out, the rights of all the beneficiaries of the Regime would be affected more gravely for them and for public finances. Likewise, returning to the conditions of the prior law, which would be the consequence of annulling the challenged regulations, would entail returning to the unsustainability of the regime. Nor has it been demonstrated in the case file that the conditions of the Costa Rican Social Security Fund regime, which has been publicly announced to also have financial sustainability problems, is a better technical alternative than the one adopted by the legislator, since, in this aspect, the technical studies supporting that thesis have also not been provided.

From a reading of the partially transcribed precedent, it can be verified that this Chamber concluded, by majority—in accordance with the reasons extensively developed in said opinion—that the reform to the Judicial Branch retirement regime, specifically pertaining to the changes introduced in the eligibility conditions for ordinary and early retirements of judicial servants—including the requirement of a minimum of twenty years of service in the Judicial Branch to be able to access an early retirement—far from being arbitrary, capricious, unfounded, or discriminatory, responded to the real need to guarantee the solvency of the Judicial Branch Retirement and Pension Fund, and that such changes were made “within the legitimate constitutional framework for the legislator's action in retirement matters”, based on an “adequate technical basis”. It concluded—as reasoned in that opinion—that such modifications to the requirements for granting ordinary and early retirements for judicial servants were constitutionally valid, as reasonable and proportionate measures to guarantee the solvency and stability of the fund, in accordance with the technical criteria provided to the respective legislative file. In sum:

“(...) the changes made were necessary precisely to achieve the sustainability of the special retirement and pension regime for judicial servants, and whose collapse would have truly signified a serious threat to the economic stability of the administrators of justice. Equally important for dismissing the claim is the fact that the legislatively established modifications do not result from the unfounded whims of the legislators, but rather were made based on technical criteria, with broad participation of interested persons, and were neither sudden nor capricious, and are based on technical criteria. In that aspect, the Chamber considers that the new pension regime, as the first pillar of the broader social security framework that covers the administrators of justice similarly to other workers, ensures them a space of economic security.”

Considerations applicable to the sub lite, insofar as no other criteria or technical studies are provided that allow reaching a different conclusion.

IV.- Continuing the above, it must be reiterated that the plaintiff does not provide other criteria or technical studies that allow reaching a conclusion different from that already developed in the aforementioned opinion no. 2021-011957. In fact, the petitioner's reasoning and objections focus essentially on the application of the challenged regulations to the particular case of the official Barrantes Venegas; however, in full consonance with what was already resolved in the above-cited opinion no. 2021-011957, the mere reference to the application of the challenged regulations to a specific case cannot substitute for the existence of technical evidence that allows adequately proving that “the changes in eligibility conditions... have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age”. Likewise, it is not appropriate for a specific or particular case of said person to be resolved through an action of unconstitutionality. It must be remembered that this Chamber has pointed out that:

“(...) the object of an unconstitutionality proceeding is not to address an individual injury that the plaintiff may claim; on the contrary, its object is a general interest that the acts subject to public law and the norms that make up the legal system are in conformity with the Law of the Constitution.” (opinion no. 2013-002902 of 14:30 on March 5, 2013).

V.- In the standing section of the filing brief, the plaintiff made express reference to the orphan's pension (pensión por orfandad)—which is a type of survivor's pension, provided for in Article 228 of the Organic Law of the Judicial Branch—which appears to be due to a mere material error, since all of the plaintiff's substantive arguments, as well as the petition formulated in the filing brief, focus specifically on the early retirement of judicial servants, regulated in the aforementioned numeral 224 bis of that same normative body. However, it is worth noting that this Chamber also expressly ruled regarding survivor's pensions (pensiones por sobrevivencia), in the above-cited opinion no. 2021-011957, in the following sense:

“LXXIII. Authored by Magistrate Hernández López. On the right to the 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. In turn, social security consists of the pension and economic systems that cover risks to which certain people are exposed, primarily workers, in order to repair or at least mitigate the damages, losses, and misfortunes of which they may be involuntary victims or without bad faith (see judgment number 2007-017971 of 14 hours and 51 minutes on December 12, 2007). Of interest for 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 deprivations that would otherwise result from the disappearance or a sharp reduction of their income as a consequence of sickness, maternity, employment injury or occupational disease, unemployment, invalidity, old age, and death; also protection in the form of medical assistance and assistance to families with children' (see Introduction to Social Security. I.L.O. Geneva, 1987, p. 3). Social security is an essential instrument for creating social cohesion, it contributes to guaranteeing social peace and social integration, it forms an indispensable part of the social policy of governments, and it is an important tool for preventing and alleviating poverty; administered correctly, it increases productivity by providing medical assistance, income security, and social services, and although it represents a cost for businesses, it is also an investment in people and, at the same time, a support for them (see Social Security: A New Consensus. ILO. Geneva, 2002, p. 1 and 2). Within the group of benefits covered by social security in Costa Rica are 'survivor's pensions' (pensiones por sobrevivencia), which are those that—upon prior fulfillment of the legally established requirements—can be granted to the family members that survive the active male or female worker who dies, regardless of whether the cause of death is illness, occupational accident, or other reasons. In this way, 'survivors' in the context of social security refer to the deceased worker's partner and their orphans, and their protection acquires special relevance because, precisely, when an important part of a family's support is lost due to death, it becomes essential to guarantee their dependents continue to have, at least, the minimum conditions necessary to survive while they manage to adapt to the new situation, and it is there that social protection policies make sense insofar as they contribute to preventing and reducing poverty and inequality, promoting social inclusion and respect for human dignity; that they contribute to providing people with a dignified and full life in the terms set forth in Article 2 of the Comprehensive Law for the Elderly Person (Ley Integral para la Persona Adulta Mayor), No. 7935 of October 25, 1999. According to doctrine, the survivors' benefits branch of social security was originally conceived within a traditional family life form, composed of husband, wife, and children, in which the married woman remained in her home taking care of domestic chores and raising children, while the person responsible for supporting the family was the husband and father. Within this context, if the man died, his widow and orphans would be deprived of their support, exposed to multiple vicissitudes such as poverty, lack of minimum living conditions, impossibility of access to health and education, among others, and for this reason, survivor's pensions were devised as part of social security. Subsequently, with the incorporation of women into working life and the modification of the traditional family structure, those survivor benefits have become 'family or dependents' benefits,' which, although still primarily intended for the deceased worker's partner and orphans, are not necessarily aimed at providing them with basic sustenance, but rather come to collaborate with the economic contribution that the deceased insured person generated in their family nucleus, so that the family can continue to maintain a certain standard of living according to what they usually enjoyed; a contribution that is of great relevance especially when considering that there may be small children or people with disabilities, whose economic needs are often of great magnitude. In Costa Rica, the legislation regulating this matter has been based on the principles established in Conventions 102 and 128 as well as in Recommendation 131, both from the International Labour Organization, without the Judicial Branch having been an exception, as its Organic Law has included this type of protection. In that sense, and before the reform by Law 9544 challenged here was approved, in the event of the death of an active servant of the Judicial Branch, former Article 230 of the Organic Law of the Judicial Branch No.

7333, provided:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 230.</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">Officials and employees who have served less than ten years shall not be entitled to a retirement pension (jubilación), nor shall their relatives be entitled to a survivor’s pension (pensión), except in the case provided for in Article 228.</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">However, if the death of the servant occurs as a result of the exercise of their duties—regardless of the time served by said servant—in addition to the legally corresponding indemnities, their beneficiaries shall be entitled to a temporary and proportional pension, under the conditions that this Law provides for such cases.”</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">As clearly inferred from reading the provision, Law 7333 regulated the possibility that, in the event an active worker of the Judicial Branch (Poder Judicial) died, but had 10 or more years of service to the institution, their relatives would be entitled to a pension regardless of the causes of the death, also establishing the possibility that, if the death occurred as a consequence of the exercise of their duties and the worker had fewer than 10 years of service, the beneficiary relatives would be entitled to a temporary and proportional pension, as provided by the Law for such cases. It is evident that the provision established broad social protection for the deceased’s survivors in accordance with the most basic principles set forth in this matter by the International Labour Organization, in terms of constituting a measure in their favor against the uncertainty and risks of life that can lead to impacts on present and future well-being, since there is no doubt that a person’s socioeconomic conditions exacerbate inequalities, vulnerability, and poverty. Note that, according to the former Article 224—of Law 7333—, to obtain a retirement pension under regular conditions, a judicial worker had to have 30 years of service, and therefore the provision transcribed supra provided that officials</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">and employees who had served fewer than ten years would not be entitled to a retirement pension; however, the legislator, with adequate social foresight, and anticipating the exceptional life situations that may occur, understood the need to protect the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">relatives</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">and provided that, once 10 years of service had been exceeded, in the event of the death of the active male or female worker, their survivors would indeed be entitled to a proportional</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">survivor’s pension (pensión por sobrevivencia). It is indisputable that this provision is of great relevance in a Democratic and Social State under the Rule of Law, in addition to the fact that death is an undeniable and integral part of the life cycle, and therefore can occur at any time; however, it takes on special relevance in the case of the Judicial Branch because many of its employees, by reason of their duties, are exposed to serious risks that can cause it, and, for this reason, that legislator also provided in that provision that if the servant’s death occurred</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">as a result of the exercise of their duties, in that scenario the worker’s time of service would not matter, since even if it were fewer than 10 years,</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">their beneficiaries were entitled to a temporary and proportional pension, under the conditions that</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">the Law provided for such cases. It is more than evident that the legislator not only had a broad social and fundamental-rights-guaranteeing perspective, but also understood the transcendence of social protection as a mechanism to shield people against eventual risks in the life cycle, as a determining aspect in society to promote productivity, decent work, the structural transformation of national economies in order to reduce poverty, social exclusion, inequality, and strengthen social cohesion and political stability. Notwithstanding the foregoing, with the reform</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">introduced to the Ley Orgánica del Poder Judicial through Law 9544 challenged herein, the situation varies radically, as argued in the unconstitutionality action (acción de inconstitucionalidad) No. 18-009275-0007-CO, in which the plaintiffs allege that this right is</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">“rendered nugatory for future beneficiaries such as those who acquire the right to a survivor’s pension (cónyuges, compañeros, dependent parents) or orphan’s pension (orfandad), disabled or incapacitated persons who depend on the deceased person, since these, if the servant has not completed 20 years of service at the time of death, regardless of whether they had served 30, 35, or 40 years in another public sector institution, would be left unprotected, uncovered in said contingency,” considering that</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">“the foregoing is inconceivable within the Social State under the Rule of Law”</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">and citing as an example the case of</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">“a person who begins working for the Judicial Branch at age 50; this person must wait until age 70 to be able to retire, and even worse, if they died before reaching those years, their survivors would not receive any pension,” further indicating that the most serious aspect of this radical change in conditions for survivors is that it has been done without technical criteria to justify it and without offering much analysis on the part of the Legislature. To understand the scope of the plaintiffs’ allegation, one must observe what is provided in Articles 228 and 229 of Law 9544—challenged herein—which regulate matters relating to the survivor’s pension (pensión por sobrevivencia):</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 228-</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">The following are entitled to a survivor’s pension (pensión por sobrevivencia):</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">a) The surviving spouse (cónyuge) of the deceased servant or pensioner (jubilado) who is economically dependent on the decedent (causante), at the time of death.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">b) The common-law partner (compañero) economically dependent at the time of the pensioner’s death, who had cohabited for at least three years prior to the death and both had the legal capacity to marry, in accordance with civil legislation.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">c) The divorced or judicially or de facto separated spouse, former common-law partner, who at the date of death receives an alimony pension (pensión alimentaria), declared by final judicial decision or who demonstrates</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">that they received economic support from the decedent.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">The following are entitled to an orphan’s pension (pensión por orfandad):</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1) Children who, at the time of the decedent’s death, were economically dependent on them, in accordance with the following rules:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.1) Unmarried minors.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.2) Over eighteen years of age, but under twenty-five years of age, who are pursuing studies recognized by the Ministry of Public Education (Ministerio de Educación Pública, MEP), the National Learning Institute (Instituto Nacional de Aprendizaje, INA), or other institutions at the discretion of the Administrative Board (Junta Administradora).</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.3) Adults who, prior to the decedent’s death, are disabled and incapable of performing remunerated work.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">In the absence of beneficiaries (derechohabientes) by widowhood, common-law union, or orphanhood, the parents are entitled to a pension, if at the time of the decedent’s death they were economically dependent on them.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 229-</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">The amount of the survivor’s pension benefits (prestaciones de pensión por sobrevivencia) in cases of widowhood, common-law union, orphanhood, or ascendancy shall be proportional to the pension amount the pensioner was receiving at the time of death, and in its entirety this amount shall not exceed eighty percent (80%) of what corresponded to the decedent. In the event of the death of an active servant, the amount of the pension for widowhood, common-law union, orphanhood, or ascendancy shall be proportional to the pension amount the deceased would have received in accordance with the fulfillment of requirements at the moment of the contingency, and in its entirety this amount shall not exceed eighty percent (80%) of what would have corresponded to the decedent.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">The proportions for the benefits for widowhood, common-law union,</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">orphanhood, and ascendancy shall be those stipulated in the regulation</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">of the Regime (Régimen).</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Every survivor’s pension shall expire upon the death of the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">beneficiary, with the exception of what is provided in this article for the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">pension corresponding to children.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">Assignments that expire shall proportionally increase those of</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">the other beneficiaries that remain in effect, at the request of</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">them and provided they require them, upon prior social work study and approval by the Administrative Board of the Fund (Junta Administrativa del Fondo).</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">(Thus reformed by Article 1 of Law No. 9544 of April 24, 2018)</span></p><p style="margin:0pt 37.9pt 12pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">From reading both articles, it is observed that the plaintiffs’ assertion makes sense when considering the case of an active male or female servant of the Judicial Branch who dies and who constituted a support for the people who survive them, for note that, under the rule established in the aforementioned Article 229—currently in force—, in the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">event of the death of an active servant, the amount of the pension</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">for those who become beneficiaries,</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">“shall be proportional to the pension amount the deceased would have received in accordance with the fulfillment of requirements at the moment of the contingency, and in its entirety this amount shall not exceed eighty percent (80%) of what would have corresponded to the decedent.” The foregoing means that, as the plaintiffs mention, only those survivors of a servant who had 20 or more years of service in the Judicial Branch will be able to be beneficiaries with a survivor’s pension, because the provision requires that the deceased could have met the requirements established in the preceding Article 224, or in other words, had 20 or more years of service in the Judicial Branch; a provision that, moreover, does not contemplate any possibility of</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">benefit for their survivors in the event that the death of the active working person was a consequence of the exercise of their duties in the institution. In addition to the foregoing, as the plaintiffs correctly assert, the provision was modified to adopt this new wording without any technical support to justify it, and in that sense, it suffices to review the legislative file to which this Court has had access to verify that there is no accredited technical basis in the file or in the appearances of the technicians, in relation to the survivor’s pension, that justifies the difference that is occurring between the former Law 7333 and the reform. This Chamber has been able to verify that none of the 6 IICE Products that served as support for the legislator to enact Law 9544 contemplate any technical justification for reversing social protection in this matter; a reversal that evidently is contrary to the guaranteeing principles of fundamental rights that must be protected by this Constitutional Court, since despite the fact that progressiveness must prevail in this matter, in the specific case there was an unfounded reversal, by changing the conditions for survivors of working persons with 10 or more years of service in the Judicial Branch, to 20 or more years of working in the institution. In addition to the foregoing, for this Chamber, such a burdensome distinction between the previous system and the current one makes the reformed provision unreasonable, therefore lacking any content of justice, and in that sense, it must be recalled that this Chamber has pointed out in the past that if</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">“the distinction that a provision establishes produces a situation of injustice, such provision is not reasonable and, therefore, contravenes the content of the principle of equality contained in constitutional Article 33” (judgment number 2001-03192</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">of 10</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">hours</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">10</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">minutes on</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">April 25</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">, 2001). It is considered that the foregoing is so because, as can be observed, faced with two equal situations—death of an active male or female worker of the Judicial Branch—, Law 9544 challenged herein gives a completely different treatment than that contained in Law 7333, despite the fact that nearly 30 years have passed between the enactment of one law and the other, and it is logical to think that societies advance in a positive and progressive manner, not the reverse. The real situation in which people who could derive benefits under these circumstances have been placed is injurious to fundamental rights, openly contrary to what is provided by constitutional Article 51 according to which, the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">family, as the natural element and foundation of society, has the right to the protection of the State, highlighting with special relevance the case of the mother, the boy and girl child, the elderly, and persons with disabilities. The foregoing means that, even though the State has the obligation to adopt the measures that are necessary to guarantee that protection and among them is, without a doubt, the recognition of social benefits derived from active workers in the Judicial Branch who had children or dependent persons forming part of that essential nucleus, the truth of the matter is that, based on Article 229 of Law 9544, they are left openly unprotected if that active servant did not have 20 or more years of working for the Judicial Branch, in clear detriment compared to the previous system that protected workers with 10 years of service, or even fewer, if the death resulted from the exercise of their duties in the Judicial Branch, despite the fact that the death of an active working person generally refers to extremely exceptional situations, which when they occur involve very few people, and precisely for that reason, the recognition of the pension to their survivors would not imply a large-scale impact on the Fondo de Jubilaciones y Pensiones del Poder Judicial. As things stand, what is appropriate is to maintain the validity</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">of the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">10 years established by Article 230 of Law 7333, such that the repeal of that provision, Consequently, it must be understood that the survivor’s pension corresponds to the survivors of the active working person of the Judicial Branch who, at the moment of the contingency, had 10 or more years of working in the Judicial</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">Branch and, in the event that the death occurred as a result of the exercise of their duties, regardless of the time served, the beneficiaries</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">shall be entitled to a temporary and proportional pension</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">in accordance with what the law provides, in addition to the indemnities established by the regulation governing the matter, because, as already indicated, the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">amount of the</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">pension</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">aims to substitute the support that</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">the deceased person</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">provided to the people who depended on them, so that they do not end up in a situation of indigence</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">or destitution.”</span></p><p style="margin-top:0pt; margin-bottom:8pt; text-align:justify; line-height:150%; font-size:14pt"><span style="width:35.4pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'">Therefore, finally, in the operative part, it was resolved that: </span></p><p style="margin:0pt 39.05pt 8pt 35.5pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'">"</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">Fourth: </span><span style="font-family:'Times New Roman'; font-style:italic">By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the requirement of 20 years of service required for purposes of obtaining the survivor’s pension derived from Article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, according to Article 230 of Law 7333 of May 5, 1993, in the version prior to the reform</span><span style="font-family:'Times New Roman'">."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'">It is clarified, again, that this was properly resolved with respect to the survivor’s pensions provided for in Articles 228 and 229 of the Ley Orgánica del Poder Judicial, but not with respect to the early retirement pensions (jubilaciones anticipadas) regulated in the cited Article 224 </span><span style="font-family:'Times New Roman'; font-style:italic">bis</span><span style="font-family:'Times New Roman'">, which properly constitutes the object of this unconstitutionality action and which corresponds to a different normative scenario.</span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0; </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">VI.- IN CONCLUSION. </span><span style="font-family:'Times New Roman'">As a corollary of the foregoing, it is appropriate to reject on the merits the action filed against Article 224 bis of the Ley Orgánica del Poder Judicial, reformed by Law No. 9544 of April 24, 2018, as is hereby ordered.</span><span style="font-family:'Times New Roman'; font-weight:bold"> </span><span style="font-family:'Times New Roman'; -aw-import:spaces">&#xa0;</span><span style="font-family:'Times New Roman'; font-weight:bold"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%; font-size:14pt"><span style="width:35.4pt; display:inline-block">&#xa0;</span><span style="font-family:'Times New Roman'; font-weight:bold">VII.- NOTE FROM JUSTICE GARRO VARGAS:</span><span style="font-family:'Times New Roman'"> I advise that this matter was examined by me and I considered that there is no ground for my recusal. The foregoing because my brother Fabrizio Garro Vargas, identification card number 1-775-688, Superior Labor Judge, has more than 20 years of working for the Judicial Branch. Thus, the eventual declaration of unconstitutionality of the provision in no way harms or benefits him.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.5pt; text-align:justify; line-height:150%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold">VIII.- DOCUMENTATION PROVIDED TO THE CASE FILE</span><span style="font-family:'Times New Roman'">. The parties are warned that</span><span style="font-family:'Times New Roman'">,</span><span style="font-family:'Times New Roman'"> if they have provided any document on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device, or one produced by new technologies, these must be removed from the office within a maximum period of 30 business days counted from the notification of this judgment.</span></p> Otherwise, all material not removed within this period shall be destroyed, pursuant to the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena in session No. 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, article LXXXI.

**Por tanto:** The action is rejected on the merits. Magistrate Garro Vargas records a note. Magistrates Salazar Alvarado, Garita Navarro, and Jara Velásquez dissent regarding the violation of Article 167 of the Constitución Política and declare that the challenged law contains the essential procedural defect consisting of the failure to consult the Poder Judicial on the text approved by Parliament by an absolute rather than a qualified majority, which affects it in its entirety (Article 167, of the Constitución Política), because it affects its organization, structure, functioning, and independence, for which reason they deem it unnecessary to analyze other procedural and substantive defects raised by the plaintiffs; except those in which a position must be taken so that a fully conforming vote exists (Article 60.2, Código Procesal Civil).

Fernando Castillo V.

**EXPEDIENTE: 21-022266-0007-CO** **DISSENTING VOTE OF MAGISTRATES SALAZAR ALVARADO, GARITA NAVARRO, AND JARA VELÁSQUEZ, WITH OPINION WRITTEN BY THE FIRST, REGARDING THE VIOLATION OF ARTICLE 167 OF THE CONSTITUTION.** The undersigned magistrates dissent regarding this point, clarifying that in the case of the last two, although we did not sign the original draft of the dissenting vote, we now adopt the reasoning set forth in Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, so that, jointly, we reiterate it as follows:

*“The undersigned magistrates dissent, and we consider that it is necessary to address the problem of the cumulative actions from the perspective that in the legislative procedure a gross, manifest, and evident violation of Article 167 of the Constitución Política was incurred, and that, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”.* *It must begin by pointing out that the Special Commission responsible for processing legislative file No. 19,922 informed the Corte Plena of the respective law projects that were being approved, to comply with the provisions of the aforementioned article 167. The consultations to the Corte Suprema de Justicia occurred on three occasions; namely:* *a) The law project was consulted to the Corte Suprema de Justicia and the report rendered was made known in the session of the Corte Plena No. 29-16 of September 26, 2016, article XVIII, communicating it to the Asamblea Legislativa, through official letter SP-288-16 of September 28, 2016, with the express indication that the consulted law project affects the organization and functioning of the Poder Judicial.* *b) On a second occasion, the Corte Plena in session No. 9-17 of April 24, 2017, article XXIX, heard the consultation posed to it and through official letter SP-118-17 of April 26, 2017, informed the Special Legislative Commission that the Corte Plena had issued a negative criterion on the consulted law project, because it affected the organization and functioning of the Poder Judicial.* *c) On a third occasion, the Corte Plena in session No. 26-17 of August 7, 2017, article XXX, heard the consultation posed by the Special Commission on the Dictamen Afirmativo de Mayoría, and the negative criterion was issued indicating that the law project processed under file No. 19,922 affects the organization, structure, and functioning of the Poder Judicial; a decision communicated to the Asamblea Legislativa through official letter SP-253-17 of August 10, 2017.* *In each and every one of the consultations formulated, the Corte Plena established that they were law projects that affected its organization and functioning, so that, based on that negative criterion, in accordance with Article 167 of the Constitución Política, and the principles of coordination, mutual respect, and equality, which inform the relations between constitutional bodies, between two Poderes del Estado [system of checks and balances], the law had to be approved with a qualified majority. Furthermore, it must be mentioned that the last of the projects, which was the Dictamen Afirmativo de Mayoría accepted by the Special Commission on July 27, 2017, was not the end. On the contrary, the text of the project was the object of substantive motions and reiteration accepted by the Special Commission, on which the Plenario Legislativo later voted in Primer Debate, in the extraordinary session No. 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative file). In this way, the text voted on by the Plenario Legislativo in Primer Debate was the modified text maintaining some of the points on which the Corte Plena had issued its negative criterion, among them, the establishment of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial to the detriment of the competencies of the Consejo Superior del Poder Judicial. But also, it must be indicated that it contained other substantial changes to the law project, among them those that worsened some conditions for judicial officials, for the enjoyment of the right to a pension and retirement, a situation on which the Corte Plena had to rule—regarding Article 167 Constitutional—due to its relevance in the Law of the Constitution. These modifications were voted on in the Primer Debate, and were approved in the Segundo Debate. All of the foregoing, without having made the institutional consultation on the project approved in Commission and that was subsequently voted on by the Plenario in the extraordinary session No. 14 of October 30, 2017.* *Although the Asamblea Legislativa considered it unnecessary to consult the Poder Judicial on the final text, approved in the Special Commission on July 27 and the subsequent modifications made by substantive motions and reiteration, and to continue with the legislative process following the criterion of the Sala in Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, given that these modifications to the pension regime of the Poder Judicial did not affect the structure and functioning of the Poder Judicial, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed below. Moreover, there is a pattern of worsening conditions for the officials of the Poder Judicial, which can be enumerated from some provisions that were modified by the substantive and reiteration motions that were reflected in the text approved in the Commission, which implied a substantial change in the previously consulted project. As indicated, this last text was approved in Primer Debate on October 30, 2017, according to which, through a comparative exercise, some of the following substantial modifications of consideration are observed, such as the following:* *a) In Article 224, the calculation base was set at 85% of the average of the last twenty years of ordinary monthly salaries earned through employment, and it is modified to set it at 82% of the average of the last twenty years of ordinary monthly salaries.* *b) In Article 229, a similar decrease affected the survivorship regime, where upon the death of the active employee, the amount for widowhood, de facto union, or orphanhood would decrease from 85% to 80%.* *c) In Article 227, a similar situation occurs for permanent disability (invalidity) of the official, from 85% to 83%.* *d) With respect to the income of the Fondo de Pensiones y Jubilaciones del Poder Judicial, it is evident that a worker contribution was set at between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial employees, and of the pensions and retirements paid by the fund. It was finally approved at a fixed thirteen percent (13%), which means that the floor or base of the worker contribution could not be reduced to the lower percentage of eleven percent. Although the upper extreme is eliminated, the fixed percentage eliminated the reduction in favor of the judicial employee, who historically has been contributing a significant sum to the fund.* *Thus, contrary to the criterion of the majority of the Sala, which relies heavily on the doctrine of Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, a precedent in which the undersigned, along with magistrate Cruz Castro, issued a dissenting vote, we consider that Law No. 9544 called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, contains the substantial defect in the legislative procedure, due to the violation of the constitutional norm that imposes the constitutional consultation, based on the arguments set forth below.* ***A.- Text of the law not consulted to the Corte Suprema de Justicia.** * *At the base of the discussion, as is well stated in the majority vote, is the determination of whether, under the terms of the provisions of Article 167 of the Constitución Política, the legislative body was or was not obligated to consult the aforementioned law project to the Poder Judicial, a duty that, for the rest, has been incorporated into Articles 126 and 157 of the Reglamento de la Asamblea Legislativa, which stipulate the procedure to be observed for this purpose. From the constitutional text, it is inferred that the mandatory consultation to the Corte Suprema de Justicia is only such if the law project refers to the organization or functioning of the Poder Judicial. Thus, 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 vote maintains that when the Carta Política Fundamental refers to the organization and functioning of the Poder Judicial, it refers—solely—to the affectation of the jurisdictional function, and not of the strictly administrative one. In support of this position, Judgments No. 1998-5958 of 2:54 p.m. on August 19, 1998, No. 2001-013273 of 11:44 a.m. on December 21, 2001, and No. 2008-5179 of 11:00 a.m. on April 4, 2008, are cited. Likewise, in relation to the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Asamblea Legislativa to consult the Corte Suprema de Justicia on the law projects that deal with it, the majority vote cites Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, based on which it concludes that, in these cases, the Asamblea Legislativa is not obligated to consult the law project to the Corte Suprema de Justicia, in the terms provided in Article 167 Constitutional. However, in the opinion of the undersigned, such an interpretation of the constitutional article, restricted solely to the jurisdictional function, derives neither from the text of the Carta Fundamental nor from the jurisprudence of this Sala. Indeed, regarding the cited precedents, it is noteworthy that, with respect to the first three judgments, what the majority maintains in its vote cannot be inferred from them. Thus, in Judgment No. 1998-5958 of 2:54 p.m. on August 19, 1998, what is developed is only the term “functioning”—of the binomial “organization or functioning”—of the Poder Judicial, without referring to the issue of the organization of that Poder de la República. Specifically, in the citation made of that vote, the Sala clearly indicates that “…the matters that mandatorily require a consultation to the Corte Suprema de Justicia are those that refer ‘to the organization or functioning of the Poder Judicial’, where the term ‘functioning’* *alludes not only to the aspects of the internal administrative regime of judicial offices, but also to the procedural issues that govern the processing of the various matters submitted to those courts”, which makes it evident that the issue of organization—which is what interests us here—was not developed in said ruling, simply because the case did not require it, since it involved the mandatory legislative consultation of constitutionality on the project to “Add a new Chapter IV, called ‘Del recurso de hábeas data’, to Title III of the Ley de la Jurisdicción Constitucional, law No. 7185 of October 19, 1989”, which was processed in legislative file number 12,827, where the issue in discussion was that the reform affected the jurisdictional function of the Poder Judicial. That this is so, is evident from the text of the judgment itself, which is not cited with due breadth in the majority vote: “…the matters that mandatorily require a consultation to the Corte Suprema de Justicia are those that refer ‘to the organization or functioning of the Poder Judicial’, where the term ‘functioning’ alludes not only to the aspects of the internal administrative regime of judicial offices, but also to the procedural issues that govern the processing of the various matters submitted to those courts. And, in Costa Rica, the constitutional jurisdiction is undoubtedly judicial, since both the Constitución Política and the Ley de la Jurisdicción Constitucional integrate this Sala within the structure of the Court”. Having quoted in its context, it cannot be inferred that the Sala restricted the binomial “organization or functioning” merely to the jurisdictional, but rather that, in the cited case, this Tribunal Constitucional only referred to the aspect of the jurisdictional function of the Poder Judicial because that was the issue under discussion, without excluding or referring to the topic of the administrative organization of said Poder de la República. The same can be said in relation to Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, to which the majority alludes. This involves an optional legislative consultation of constitutionality regarding the law project to “Modify the Código Penal, Law number 4573 and its reforms”, legislative file number 14,158. Again, it involved a reform that directly affected the jurisdictional function of the Poder Judicial, not its administrative organization. Hence, in this case, the Sala also did not develop this last issue, as it was considered unnecessary.* It is for this reason that the substantive discussion focused on and was exhausted by the aspects of the jurisdictional function of the Judicial Branch: “…said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules for the functioning and organization of the Judicial Branch, this being understood not merely as provisions regulating the creation of courts of justice or jurisdictional competences, but even those that provide for the manner of exercising said competences, that is, on the way in which the Judicial Branch carries out its jurisdictional function, including properly procedural rules.” Certainly, it is evident that what was expressed was limited to examining matters related to the exercise of the jurisdictional competences of the Courts of Justice, since it was on that particular aspect that said consultation was based. But the Chamber did not say that this is the only instance in which the consultation of article 167 of the Political Constitution is mandatory; rather, what it said is that, in that case, it is mandatory, without referring to other cases in which it also is, such as matters concerning the administrative organization and competences of the Judicial Branch.

*A separate comment is warranted for Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, since here, unlike the reading made by the majority, it is indeed established that matters relating to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited Article 167 of the Constitution. On that occasion, this Constitutional Court, as the maximum interpreter of the Political Constitution, when referring to the terms “organization or functioning” of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for the mandatory consultation to that Branch of the Republic by the Legislative Assembly, considered “…that a bill deals with such matters when it contains in its articles explicit norms that provide for the creation, substantial variation, or elimination of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or else creates, *ex novo*, substantially modifies, or eliminates materially jurisdictional or administrative functions…”. This is not a change of criterion by this Court on the matter, but rather, within the jurisprudential line already drawn, a further determination of the terms “organization or functioning” used by Article 167 of the Political Constitution, to establish the cases in which bills that are in the legislative process must be consulted—obligatorily—to the Supreme Court of Justice. This judgment did not expand, in any way, the assumptions for mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner. Therefore, it clearly determined there that in those cases—but only in these—is the consultation mandatory. Thus, it is understood that, in that same judgment, it was expressed: “[i]t should be noted that such exegesis is imposed in order to maintain the balance of powers, without privileging one or another constitutional body, so that each can exercise its functions independently and separately as imposed by the constitutional text itself (Article 9 of the Constitution). In other words, the precision of such concepts avoids any collision, overreach, or exacerbation of the respective functions, in order to maintain the balance and containment of powers, because the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch but also the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms used by the original constituent by the Full Court could lead to certain matters that, in a strict sense, are not related to the organization and functioning of the Judicial Branch unduly requiring a reinforced law, thereby unnecessarily slowing down or hindering the legislative function. On the other hand, the non-application of the constitutional norm by the Legislative Assembly, by erroneously considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it follows that everything related to the matter of organization and functioning of the Judicial Branch, but only and strictly this—to maintain the balance between functional independence and budgetary autonomy of the Judicial Branch, on the one hand, and the freedom of configuration of the ordinary legislator, on the other—is what obliges the legislative body to conduct the consultation before the Supreme Court of Justice, without it being able to be extended to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that matters relating to the administrative organization of the Judicial Branch, and not only those concerning the direct or indirect affectation of the jurisdictional function, obliges the legislative body to raise the consultation in the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the affectation or modification of the administrative organization of the Judicial Branch in general—and not only that pertaining to jurisdictional or judicial bodies in the strict sense—also impacts the Administration of Justice service it provides, and the independence constitutionally guaranteed to that Branch and to the judges as officials called to impart justice.* *Furthermore, Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, which are cited in the majority vote as a basis to conclude that bills related to the specific topic of the Pension and Retirement Fund of the Judicial Branch do not need to be consulted to the Supreme Court of Justice, also do not have the virtue of providing the basis that, in relation to this matter, the majority of the Chamber affirms they have.* *In the first of said judgments, the Chamber heard accumulated actions of unconstitutionality filed against the Framework Law on Pensions, Law No. 7302 of July 8, 1992. This Court, on that occasion, only affirmed that, in the case of the Framework Law on Pensions, there was no constitutional obligation to consult the respective bill with the Judicial Branch, for the simple reason that said bill does not affect judicial servants; and, therefore, it does not fall within the provisions of Article 167 of the Political Constitution. Likewise, in the cited vote, it is indicated that functioning is referred to the jurisdictional function, but it makes no allusion whatsoever to the topic of the organization of the Judicial Branch, which is what is at issue here.* *Similarly, in Judgment No. 2002-4258 of 9:40 a.m. on May 10, 2002, the Chamber heard accumulated actions of unconstitutionality filed against Article 4 of Law No. 7605 of May 2, 1996, insofar as it reforms Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch, No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulation of the Costa Rican Social Security Fund. The 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 servants that was challenged had no relationship with the organization or functioning of the Judicial Branch, for whose definition it referred to what was said on the matter in Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, which, as already stated, only referred to the term functioning of the Judicial Branch, without making any reference to the topic of its organization. Thus, unlike the criterion expressed by the majority, said judgments do not exclude the matter relating to the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation to the Supreme Court of Justice, but only insofar as the respective bill has no direct relationship with the “organization or functioning of the Judicial Branch,” topics that, certainly, were not involved in the actions filed before this Chamber and resolved in the cited judgments. With this, the matter concerning the Pension and Retirement Fund of the Judicial Branch is not excluded from the mandatory consultation to the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation; rather, it will depend on whether the bill in question contains or does not contain regulations relating to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case to establish the mandatory nature or not of said consultation.* *At this point, it is important to clarify that the functional independence of the Judicial Branch, established in Article 9, and reinforced in Article 154, both of the Political Constitution, necessarily implies the power of that Branch of the Republic to give itself its own organization, in order to avoid, especially, the intrusion of political interests into its function. And this organizational independence, both administrative and jurisdictional, is also what is protected in Article 167 of the Constitution. In this sense, in the opinion of the undersigned, it is a serious conceptual error to confuse or assimilate the jurisdictional function in a broad sense, including the auxiliary function to the jurisdictional one, with the strictly administrative function. The jurisdictional function is a special and different function from the administrative function provided by officials of the Executive Branch or the decentralized sector. The Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the jurisdictional function compared to the merely administrative function. Precisely, one of these characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is independence, in its dual aspect: both of the Judicial Branch itself considered, and of the judge and other auxiliaries of the jurisdictional function. It suffices to understand the delicate task performed by the judges of the Republic, with the collaboration of the officials who assist and aid them in their functions, and without whom they could not properly exercise their function, to bear in mind that they decide the cases submitted to their knowledge with the force of res judicata; that is, they decide what is the truth with the force of legal authority in each case, without their decision, once that condition is reached, being able, in principle, to be reviewed. This implies an extremely delicate function and great responsibility, which could not be carried out if the functional independence of the Judicial Branch and the judges who comprise it is not guaranteed. And, in this sense, there cannot be true independence if the salaries and the pensions and retirements of the judges and auxiliaries of justice were not commensurate with their responsibilities, far more serious than those of any other official exercising a merely administrative public function. Hence, one and the other can in no way be equated, neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights.* *There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional State of Law in modern societies. This is because, unlike what is decided in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are final; that is, they have the force or authority of res judicata. This not only implies great responsibility but also the need to have a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, presents itself as a sine qua non condition for the exercise of that delicate function. It is up to the judge to decide on the single and only possible interpretation of the law, the Constitution, and the conventionality parameter, which would be impossible without having due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the judge proper and for the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, they cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies, on the topic of the action, that the retirement or pension of judicial servants is not equal to that of the rest of the administrative public sector. What is decided with the force of res judicata in the judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, therefore, on social peace. In all this, judicial independence plays a leading role, because in a Constitutional State of Law; that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch proper, against any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State but even before the hierarchs of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch—with all its servants included—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest level of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, Article 8.1 establishes:* “Article 8. Judicial Guarantees.

1. Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal charge brought against them, or for the determination of their rights and obligations of a civil, labor, fiscal, or any other nature.” *Judicial independence constitutes a fundamental principle within the Constitutional State of Law. But that independence, to be real, must be not only organizational and functional but also economic. That economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the ordinary budget project must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The intention of the original Constituent, with the enactment of this norm—which establishes a tied constitutional expenditure—is to guarantee, among other things, that the judges and the rest of the auxiliary justice personnel have adequate remuneration for the complexity and difficulty of the jurisdictional function, which implies an adequate retirement or pension also commensurate with that and with the special prohibitions that said function implies for judicial servants, which do not weigh on the public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of the judges and auxiliary personnel, as well as the pension and retirement regime applicable to them, must be strictly related to the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional State of Law. Thus, one way to guarantee the independence of the Judicial Branch, of the Judges of the Republic, and of the auxiliaries of justice, is with a dignified retirement or pension, commensurate with their constitutional functions.* *In the explanatory statement that led to the enactment of the Law on Judicial Retirements and Pensions, as an addition to the Organic Law of the Judicial Branch, Deputy Teodoro Picado Michalski, on June 2, 1938, expressed:* “The Judicial Branch is one of the three main pillars upon which the Government of the Republic rests; and it is from its servants, from those who, by exercising very delicate functions for the very life of Society, are required, more than from other employees, greater enlightenment, probity, and work. And it is for that reason, surely, that when asking judicial servants for complete dedication, for many long years, to the extremely important task of administering justice—with the noble purpose of ensuring their subsistence upon reaching old age or when due to physical ailments they can no longer work—that there has been continuous urging before Congress, in different legislative periods, for the enactment of a law that contemplates that difficult situation of the officials and employees of the Judicial Branch.” *It must not be overlooked that the judging persons and the judicial civil servants in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigorousness than the regime of incompatibilities and prohibitions affecting the rest of the public officials, which makes it of an entirely different nature. The regulations that apply to the administrative civil servants of the entire public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the end of the employment relationship. But also the principle of equality, embodied in Article 33 of the Political Constitution, implies the prohibition of treating unequals as equals, because from this derives a discrimination contrary to the Law of the Constitution. In the case of judges and judicial officials, there exist objective, reasonable, justified, and well-founded conditions, based on the very nature of the jurisdictional function exercised, to give them treatment different from that of the rest of the public servants of the different administrations, whereby, far from incurring discrimination, the principle of equality regulated in the cited constitutional article is protected. Which means that if a differentiated retirement regime exists for the jurisdictional sector, this is not due to an arbitrary, subjective, or capricious decision of the legislator, but to the specific and different nature of the jurisdictional function itself, which objectively and constitutionally justify it.* *The foregoing is not only derived from our own Political Constitution and the values and principles that inform it but is also contained in various international instruments. Thus, for example, in the “Basic Principles on the Independence of the Judiciary,” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, in principle 11, the following is stated:* “11. The law shall guarantee the tenure of judges for the established periods, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement.” *With which, the United Nations recommends to all countries of the world that legal norms must guarantee judges adequate and proportional remuneration, pensions, conditions of service, and retirement, commensurate with the complexity and difficulty of the jurisdictional function they exercise. This must also be understood as extending to the auxiliary officials of justice, for otherwise such independence would be impossible.* *Similarly, in the “European Charter on the Statute for Judges,” adopted in Strasbourg, between July 8 and 10, 1998, in order to achieve real and effective independence of the Judicial Branch and the officials who administer justice, as well as their collaborators and auxiliaries, in paragraphs 6.1 and 6.4, the following is established:* “6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined with the aim of preserving them from pressures intended to influence their decisions and, more generally, their jurisdictional performance, thereby altering their independence and impartiality.

6.4 In particular, the statute shall ensure to the judge who has reached the legal age for ceasing their functions, after having performed them professionally for a determined period, the payment of a retirement pension whose amount shall be as close as possible to that of their last remuneration for judicial activity.” *The cited instrument seeks to achieve a real and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. Thus, the adequate remuneration and pension of judges and auxiliaries of justice, in the terms expressed therein, constitutes the due and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.* *Also, the “Statute of the Ibero-American Judge,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32, echoes the same principles already cited, when stating:* “Art. 32. Remuneration.

Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” *And, in Article 33, it provides:* “Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that they will receive, upon concluding their years of service due to retirement, illness, or other legally provided contingencies, or in the event of personal, family, or patrimonial damages derived from the exercise of the office, a dignified pension or adequate compensation.” *It must be borne in mind that retirement and pension form part of the Economic, Social, and Welfare Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification, and accession by the General Assembly of the United Nations, in its resolution 2200 A (XXI), of December 16, 1966. These regulations have also been embraced in Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the topic of the independence and irremovability of judges.* Regarding the issue of judges' salaries, said Council recommended:

*“…it is generally important (and especially in the case of new democracies) to establish specific legal provisions that guarantee salaries for judges protected against reductions and that ensure de facto ‘the increase of salaries in line with the cost of living’.”* These recommendations are fully applicable to the issue of pensions and retirement benefits of judges and judicial servants in general, since they are intimately related to the principle of independence of the Judicial Branch, as has already been stated.

But this matter has not only been regulated in the international sphere in the terms stated, but it has also been the subject of regulation within the Judicial Branch itself, with considerations similar to those mentioned.

Indeed, 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 Judicial Branch and of judges, in its different facets. Article 24, relating to the material conditions of judicial independence, establishes that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget items,” which is intimately related to the provisions of the already cited Article 177 of the Constitución Política, regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the cited Estatuto also enshrines, like the international instruments examined, the principle of the lifetime tenure (irreductibilidad) of a judge’s salary: “Judges must receive sufficient, lifetime tenure (irreductible) remuneration in accordance with the importance of the function they perform and the demands and responsibilities it entails.” As already explained, this special regulation has its foundation in the independence of the Judicial Branch, which must also be extended to the issue of the pension or retirement of judges and auxiliary justice personnel, since otherwise, the principle of judicial independence would not be possible.

Respect for judicial independence, which is one of the aims pursued by Article 167 of the Constitution, was also the subject of express regulation in the Estatuto, Article 20, by providing that “[t]he other Branches of the State and, in general, all national or international authorities, institutions, and bodies must respect and make effective the independence of the judiciary.” And, precisely, the unconsulted intrusion of the legislative body in the organization and functioning of the Judicial Branch, whether creating, modifying, or suppressing judicial or administrative bodies or competencies, is constitutionally inadmissible, as this constitutes a flagrant violation of the principle of judicial independence.

Finally, it should be noted that the independence of the Judicial Branch is a principle that has a particular and specific nature, distinct from that of the other Branches of the State, since it consists of a protective shield against the intrusion of political power, from which the other Branches of the State are not protected. This is because the Judicial Branch is the one that administers justice, and this must be impartial and free from any external pressure. And, on this point, economic pressure, whether through salary or stipend, or through the amount and conditions of the retirement or pension of judges and other judicial auxiliaries, plays a transcendent role in achieving real and effective independence of the Judicial Branch.

Based on the preceding considerations, it is appropriate, then, to examine the content of the law in order to determine whether or not it affects the organization or functioning of the Judicial Branch, in the terms expressed.

In this vein, just as when the legislative consultation related to the bill for the Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa was heard, now approved by Ley N° 9544 of April 24, 2018, called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, content in Ley N° 7333, Ley Orgánica del Poder Judicial, of May 5, 1993, and its reforms,” the reasons of the dissenting vote are maintained. That legislative consultation was resolved by Sentencia N° 2018-005758 at 15:40 hours on April 12, 2018, which addressed the various complaints about Article 239 of the law now in question. On that occasion, the legislative process was reviewed regarding the creation of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, which it defines as a body of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions that the law grants it, a body that is granted functional independence and assigned a series of competencies, among others, to increase the worker contribution to the Pension Fund and to hear retirement applications, which implies a modification in the structure of the Judicial Branch. Likewise, competencies are removed from the Consejo Superior del Poder Judicial; and, in addition, in Article 240 of the bill, the obligation is conferred on the Corte Plena to issue regulations for the election of the members of that Junta Administradora, thus assigning it a competency it does not currently have. The aforementioned articles of the Law provide:

“Article 239- The Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial is created as a body of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the powers and attributions that the law grants it.

The responsibilities of the Junta are:

• a)Administer the Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Study, hear, and resolve the retirement and pension applications submitted to it.
• c)Collect the contributions that correspond to the Fund and exercise the necessary collection actions.
• d)Attend to requests for re-entry into remunerative work by invalid retirees.
• e)Perform actuarial studies with the periodicity established in the regulations issued for this purpose by the Consejo Nacional de Supervisión del Sistema Financiero (Conassif) and the Superintendencia de Pensiones (Supén).
• f)Invest the Fund's resources, in accordance with the law and with the regulations dictated for this purpose by the Consejo Nacional de Supervisión del Sistema Financiero and the Superintendencia de Pensiones.
• g)Comply with the legislation and regulations dictated by both the Consejo Nacional de Supervisión del Sistema Financiero and the Superintendencia de Pensiones.
• h)Issue the rules for the appointment, suspension, removal, and sanctioning of personnel; as well as approve the annual operational plan, the operating budget, its modifications, and its annual liquidation.
• i)All other attributions assigned to it by law and its regulations.

Based on the result of the 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 benefit profile, as well as the contributions and levies of judicial servants and the retirement benefits and pensions provided for in the law, provided this is necessary to guarantee the actuarial balance of the Regime.

The Junta shall have instrumental legal personality to exercise the attributions that the law assigns to it, as well as to exercise the judicial and extrajudicial representation of the Fund.

It shall be financed by a commission for administrative expenses that will arise from deducting five per thousand of the salaries earned by judicial servants, as well as from the retirement benefits and pensions covered by the Fund. These resources will be used to pay the per diem of the members of the Junta Administrativa, the salaries of its personnel, and, in general, its administrative expenses. Idle resources will be invested in accordance with the provisions of Article 237 of this law.

Article 240- The Junta Administradora shall be composed of three members who will be democratically elected by the judicial collective, as well as three members appointed by the Corte Plena, with a gender perspective in both cases. Each full member shall have an alternate to substitute for them in their absences, who must meet the same requirements as the full member.

Those who make up the Junta shall hold their positions for five years, after which they may be re-elected, all in accordance with the regulations to be issued for this purpose by the Corte Plena, after a hearing granted to the trade union organizations of the Judicial Branch.

In the first ordinary session, the Junta shall appoint the person who will preside over the sessions; this appointment shall be made for a period of one year, and must alternate each year between the representatives of the judicial collective and the Corte Plena. In addition, a person will be appointed to substitute for them in case of absence. The presiding person shall have a tie-breaking vote in case of a tie.

The members of the Junta Administradora shall not earn any per diem but shall have the necessary leave to attend the sessions. To be a member of the Junta, the following requirements must be met, which must be documented and proven before the Superintendencia de Pensiones (Supén):

• a)Hold a university degree in careers related to the administration of a pension fund and be incorporated into the respective professional association (colegio profesional), when applicable.
• b)Be of recognized and proven honorability.
• c)Have knowledge and at least five years of experience in professional or managerial activities relevant to the administration of a pension fund, so that all members of this body possess skills, competencies, and knowledge that allow them to perform the analysis of the risks that affect the Junta and the Fund.

The following may not be members of the Junta:

• 1)Persons against whom a final convicting criminal judicial sentence for the commission of an intentional crime (delito doloso) has been handed down in the last ten years.
• 2)Persons who in the last ten years have been disqualified from holding an administration or management position in the Public Administration or in entities supervised by the Superintendencia General de Entidades Financieras (Sugef), the Superintendencia General de Seguros (Sugese), the Superintendencia de Valores (Sugeval), and the Superintendencia de Pensiones (Supén).

The composition of the body must guarantee the equal representation of both sexes, ensuring that the difference between the total of men and women is no more than one.” From reading Article 239, transcribed above, it is clear that it creates a new body within the structure of the Judicial Branch, called “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial,” which is granted complete functional, technical, and administrative independence to exercise the powers, competencies, and attributions that the law grants it, listed in subsections a), b), c), d), e), f), g), h), and i) of that same article, for the fulfillment of its tasks, for which it shall have instrumental legal personality. In such a way, an administrative body is created ex novo and assigned within the structure of the Judicial Branch, with specific competencies and attributions; and, concomitantly, competencies and attributions previously granted -by formal law- to the Consejo Superior del Poder Judicial are subtracted and eliminated. This circumstance alone, for the reasons stated, obliges the legislative body to necessarily consult the bill with the Judicial Branch, in the terms set forth in Article 167 of the Constitución Política, since this modifies the administrative organization of the Judicial Branch, with the creation of a new administrative body, and the suppression of competencies of the Consejo Superior in favor of that newly created body, which clearly affects the independence of that Branch of the Republic.

The same can be said in relation to Article 240 of the law, insofar as it addresses issues pertaining to the administrative organization of the Judicial Branch, regarding the composition and appointment of the members of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, their term of office, the appointment of the person who is to preside over it, and the requirements to be a member of that Junta, among others. It is noteworthy that even though the Corte Plena is empowered, by the Ley Orgánica del Poder Judicial, to issue the internal regulations necessary for the proper functioning of the Judicial Branch, the fact that, through the law, it is imposed with the obligation to regulate matters relating to the term of office of the members of the Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Corte Suprema de Justicia, implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Constitución Política; and, therefore, an injury to judicial independence. At first glance, the cited regulation removes from the President of the Corte Suprema de Justicia, and consequently, from the President of the Consejo Superior del Poder Judicial, the competency granted by the Ley Orgánica del Poder Judicial to administer the Fondo de Pensiones y Jubilaciones del Poder Judicial, precisely in accordance with the investment policies established by the Corte Plena, just as it is currently contemplated in Article 81, subsection 12.

Notwithstanding the foregoing, the substitute text of the bill, which was adopted by the Comisión Especial in the session of July 27, 2017, was not consulted with the Corte Suprema de Justicia, despite containing a series of regulations that affect the organization and functioning of the Judicial Branch. However, as stated in the majority vote, at folio 2625 of the legislative file, it is recorded that, in response to a motion approved on July 27, 2017, by the Comisión Especial, by official letter number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Comisiones Area of the Asamblea Legislativa granted a hearing to the Judicial Branch regarding the affirmative majority report, based on which the Corte Suprema de Justicia issued its opinion through official letter number SP-253-17 of August 10, 2017, as recorded at folios 2759 to 2807 of the legislative file. This means, then, that the Judicial Branch was indeed consulted and expressed its opinion in relation to the substitute text approved by the Comisión Especial on July 27, 2017, which occurred even before said text was known by the Plenary.

Despite this, that text was not the one approved in the First Debate by the Legislative Plenary on October 30, 2017, published in Alcance N° 268 to Gaceta Digital N° 212 of November 9, 2017, since what was approved is a substitute text introduced by motion via Article 137 of the Reglamento de la Asamblea Legislativa. This last text was not consulted with the Corte Suprema de Justicia, as was appropriate, according to the analysis supra, under the terms of the provisions of Article 167 of the Constitución Política.

As argued by the petitioners, a constitutional violation was incurred in the legislative procedure. In this regard, it should be noted that this Constitutional Court has jurisdiction to hear and rule on defects in the formation of laws when any substantial requirement or procedure provided for in the Constitution or in the Reglamento de la Asamblea Legislativa is violated. This is in accordance with Article 73, subsection c), of the Ley de la Jurisdicción Constitucional, which states:

**“Article 73.-** The action of unconstitutionality shall be admissible:

…

• c)When in the formation of laws or legislative agreements any substantial requirement or procedure provided for in the Constitution or, as the case may be, established in the Reglamento […] of the Asamblea Legislativa is violated.

…”.

So that, according to the Ley de la Jurisdicción Constitucional, if what is being analyzed is a formal law approved by the Asamblea Legislativa, it would involve the subsequent review of laws or legislative agreements, through the examination of the legislative file, to determine that no essential defect was incurred in the law-making procedure. Therefore, the defect detected in the legislative procedure of Ley N° 9544, called “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contained in Ley No.

7333, the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) of May 5, 1993, and its Amendments", must be declared due to the omission of consulting the Supreme Court of Justice on the substitute text approved in the First Debate, given that this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative body within its structure, granting it substantial powers in matters of pensions and retirements; and, at the same time, suppressing powers previously granted by law to the Superior Council of the Judicial Branch (articles 239 and 240 of the bill).

This Chamber, in support of the foregoing, in Judgment No. 2001-13273, of 11:44 a.m. on December 21, 2001, when evacuating a legislative consultation of constitutionality on a bill to reform the Penal Code, insofar as it modifies aspects related to the organization or functioning -merely administrative- of the Judicial Archive, held unanimously that:

"In the same manner, they modify the scope of functions of the Judicial Archive, increasing the amount of data it must record. All of the foregoing undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Legislative Assembly omitted to carry out the respective consultation with the Supreme Court of Justice (at least, it does not appear in the certified copy of the file sent by the President of the Directory), without said aspects having been previously included in the texts consulted with the Supreme Court of Justice, for which reason the Chamber considers that a violation of the duty imposed in Article 167 of the Political Constitution was incurred regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense, it must be understood that the procedure followed prior to the approval of the amended opinion is null from the constitutional point of view and must be so declared." It should be noted from what has been said, that the defect pointed out was not remedied, in the second debate, even if the Law had been approved by a qualified majority, since this would only be so if it were a matter of the approval of a text that was mandatorily subjected to consultation with the Judicial Branch, for affecting its organization, structure and functioning -as in this case-, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it, deviating from the technical criterion of the judicial body. None of this occurred in the legislative procedure, given that Law No. 9544 of April 24, 2018, did not even obtain the qualified vote in the second debate, and even worse, the approved text was without institutional consultation. The crux of the problem before us, really, is the approval -in the First Debate- of an un-consulted text, in contravention of the provisions of Article 167 of the Political Constitution, a procedural defect that is insurmountable and irremediable. This is because, even though it is true, the substitute text of the bill, which was accepted by the Special Commission at the session of July 27, 2017, was consulted with the Supreme Court of Justice, this text was not the one that was finally approved in the First Debate, but rather a new substitute text which, beforehand, was not consulted, despite having a direct relationship with the organization, structure and functioning of the Judicial Branch, as has been set forth. And furthermore, even though the previous text approved by the Special Commission at the session of July 27, 2017, was indeed consulted with the Court, since the latter showed disagreement with the text, a qualified vote by the Plenary was mandatory, according to the terms of Article 167 of the Fundamental Charter, which was also not done.

It is worth recalling that institutional consultation has the purpose of protecting judicial independence, which is much more complex than reducing it to the protection of a jurisdictional forum. The mandatory institutional consultation must be timely, because otherwise, it would be a paper obligation that would not produce the true safeguards that the constitutional text seeks to establish between equal Powers of the Republic. The maintenance of a contrary position, and in a permanent manner, by the majority of the Court will not be sustainable over time, because even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is, for the most part, in the citizen guarantees that the Constituent Power wanted to guarantee in Article 167, and later, improved with the amendment to numeral 177 of the Political Constitution.

The Full Court (Corte Plena), in Session No. 27, of August 7, 2017, Article XXX, when evacuating the consultation to the Legislative Assembly on the Affirmative Majority Opinion, approved by the aforementioned Special Commission, ordered:

"It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial servants because it means a decrease in retirement benefits, even when they have met all legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding contributions; the payment of income; contributions both to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) and to the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) system and another series of charges that, if the text is approved as it has been proposed by the reporting Commission, would result in confiscatory actions.

It cannot be overlooked that the creation and nature of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) responds to criteria of stability, independence, preparation and suitability, as established by Article 192 of the Political Constitution, with the purpose of promoting the permanence of trained and qualified personnel in the institution and the decrease in retirement benefits represents a disincentive for the entry of valuable professional people, who, considering the economic result of a future valuation, would prefer to make their professional career in another labor sphere.

It affects the judicial, prosecutorial, Public Defense and general staff career who, having more burdens on their salary -four times more than in other regimes-, would receive a lesser benefit.

On the other hand, the renewal of the staff that manages to stay is affected. The Judicial Branch would have elderly officials, who continued working only because of the decrease their income would suffer in case of retiring.

The judicial population would be at a crossroads, where even though it is true, there is a desire to opt for that right and the motivation to retire to rest, they are placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal or pre-pension acquired expenses, and those natural for reasons of age. However, that process also has its restrictions, from the legal point of view the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) prohibits retired persons from opting for another job, and socially it is a reality that after the age of forty there are factual limitations regarding labor reincorporation.

It has great relation to the structure and functioning, since it reduces the competitiveness of the Judicial Branch in the labor market, to the detriment of the quality of the Administration of Justice. The salary of the positions is diminished by the contribution to the pension and retirement regime that is four times greater than the contribution of other regimes. This makes the recruitment of human resources difficult and the public service is harmed.

Furthermore, the regulation of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) should not be valued only from the economic perspective, because we are faced with fundamental rights -inalienable- associated with every working person, who during their working years contributed a higher percentage than the general one, to a regime with the expectation of having a pension, that allows them to satisfy their needs and enjoy, together with their environment, their retirement years calmly and with quality of life.

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

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

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

Taking into account the observations made to the Bill processed under file 19922 (20035), which find adherence and support in the actuarial study carried out by the IICE and based on the powers that Articles 167 of the Political Constitution and 59 subsection 1) of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) grant, it is estimated that the consulted text does affect the structure, organization and functioning of the Judicial Branch and in that sense, the Legislative Assembly must take into account what was said by the Full Court in relation to each aspect of the Bill under consultation, unless it has the qualified majority to deviate from said binding opinion.

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

Corollary, regarding the Bill processed under file no. 19922, a negative criterion must be issued because it affects the structure, organization and functioning of the Judicial Branch." The final part of the aforementioned constitutional article (167), literally states that "to deviate from the criterion of the latter [The Court], the vote of two-thirds of the total members of the Legislative Assembly shall be required"; and, said final text, -not consulted in any case- was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). And, for the second debate, it did not achieve the qualified majority, reaching thirty-four votes (folios 4437, 4608 and 4637 of the legislative file).

B.- The legal and social dynamics that informed the amendment to Article 177 of the Constitution. It is necessary to address the criterion of the majority, which, we consider respectfully -but with equal vehemence-, the reasons why it is considered that they use a lax interpretation of the obligation of institutional consultation established in Article 167 of the Constitution, in addition to what was previously stated. It is clear that, in general, the constitutional doctrine underlying institutional consultation is based on similar reasons: to guarantee that the legislator has first-hand the best information to legislate, that is, has the specific technical criterion. It is about the Constituent Power's recognition of institutional autonomies, as well as, to its greatest degree, the defense of the independence that corresponds to a Power of the State or fundamental constitutional organ of the State. In the processing of complex laws, such as those that may have a conflicting criterion from the Judicial Branch, it is when a qualified majority of the legislators is most required to promote those significant changes in legislation through a true consensus.

Although this Chamber, in some of its judgments, has established that institutional consultation is not appropriate for bills that have a national or general character, this single jurisprudential criterion cannot suffice to discard the need to aggravate the legislative procedure in the Legislative Assembly, when it comes to the qualified majority established in numeral 167 of the Constitution. This must be dimensioned not only referred to topics that are related to the institutional autonomy of the Judicial Branch, but especially, to those referred to the direct or indirect incidence on judicial independence, which is guaranteed in the Constitution, through the fundamental organic structure of the State. This, especially, if, as in the case before us, there have been various defects in the legislative procedure, referred to further below.

It is clear that the criteria to deny institutional consultation for considering that a bill is of a national or general character cannot be used indiscriminately, especially because with such qualification a large number of bills that have an impact on the national budget would enter; in this situation, a large majority would have a national incidence that is used to establish the defense of public objectives seen from economistic criteria. On the contrary, this minority estimates that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental organ of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent scopes over the judicial function (which is universal and with full jurisdiction over all legal controversies), which expresses the fundamental functions of control, as much and more than those of the semi-autonomous and autonomous institutions, because it is related to the functional specialty and independence of a power of the Republic. The absolute weight of the fundamental institutionality of the State must delineate the criteria of examination and scrutiny that this Constitutional Court must carry out, so that it cannot be examined in the same terms as is done for other autonomous institutions, since evidently the consequences are very different for the State and the population in general. It suffices to point out Judgment No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

"...in general, the judicial function is universal and has full jurisdiction over all legal controversies that arise in the country. Universality refers to competence over all disputes submitted to the Courts of Justice, and even those not appearing in it or in the law by the principle of hermeneutic fullness (Article 153 of the Political Constitution). Universality supposes jurisdiction over all individuals in dispute, including in accordance with the general principles of Public International Law and Private International Law. The Judicial Branch has competence to decide definitively on all controversies, channeling the issues in accordance with the respective procedure of the procedural iter, ending, generally, with a judgment -normal way to end the process- with the state of res judicata, which is an expression of the power and function of full jurisdiction, universal, and which implies the prohibition of reopening the same controversy for discussion, to prevent the perpetuation of conflicts and their threat to peaceful coexistence in society. It is the tombstone that prohibits reopening the discussion on the same facts." The Constituent Power of course assigned a specific field of action to the Judicial Branch so that it functions with independence, which is nourished and participates in all Western thought, inspired by the principles of impartiality and justice; it simply cannot be compared or assimilated to that of the minor entities of the State. On the contrary, it is clear that Article 167 of the Political Constitution is placed in consideration of the institutional importance and its functional autonomy in the grand scheme of the State.

Earlier in this same judgment, it was also established that:

"This leads to the principle of functional legality, which entails the exercise of the constitutional competences of the State, the achievement of the core objectives of each power without extending to those of the other independent Powers of equal rank, and in exercising each one the functions of checks and balances, they can control and limit the other Powers, as authorized by the Political Constitution. In accordance with the distribution of the fundamental functions of the State, when the Legislature enacts laws, it is subject to the supremacy of the Political Constitution and the limits enshrined by the Political Constitution, which definitively conditions their regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could not fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the Fundamental Charter; finally, the Judicial Branch could not resolve against the grain of the applicable norms to a specific case, except due to the conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties and the Political Constitution, remaining subject to them. In accordance with Articles 10 and 152 and following of the Political Constitution, it must ensure the regularity of all legislation, so it could not apply invalid or unconstitutional regulations, because in addition to the fundamental function of dispensing justice, it must ensure that no action or omission violates the essential principles of any social and democratic State of Law, among them: the principles of legality, normative hierarchy, respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch interprets and ultimately applies the Political Constitution, having the control of constitutionality of norms and omissions -the monopoly of rejection- when legislation is contrary to it, thus when they violate fundamental rights, because naturally it is the last guarantor of the principle of legality, the ultimate defender of the ends and objectives of the State and the realization, through Law on a case-by-case basis, of the well-being of the human being." Now, the judgment addresses the generalities of the Fund and its legal development from the beginning of the last century, in line with Judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018, to explain the legal development of social security and the pension regime of the Judicial Branch. However, reference should have been made to the fact that the shortcomings of the system also served as a spur at the constitutional level, because there were others that were gestated to guarantee greater institutional stability and in favor of judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the institutionality of the country, the one obtained with the amendment to Article 177 of the Constitution, with which the economic independence of the Judicial Branch was guaranteed. It is therefore appropriate to propose that, if the institutional and social dynamics of that time were important, those of the amendment to the Political Constitution were even more so, which are not at all negligible, because they were aimed at strengthening the Judicial Branch, and with the same weight, producing protection within the civil service. The economic and legal dynamics say as much or more, because despite the legal achievements and due to the number of problems that existed in the era prior to the constitutional reform, it was gestated from the heart of the Full Court, and was accepted by the Legislative Assembly, the substantial improvement of that economic independence of the Judicial Branch in the Political Constitution itself. There is no doubt that the protections that the derived Constituent Power established in the amendment are equally distributed over the stability of the judicial civil service. Thus, the limitations on facilities and infrastructure, providing better work tools, improvement of salaries, more resources for the Judicial Branch Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial), among others, were contemplated. The plaintiffs' claims should have found resonance in this route of the unconstitutionality action, some of which are listed at the beginning of this dissenting vote. Judicial independence is defended with the tools that precisely the Constituent Power endowed, within which the most consolidated democracies in the world dedicate themselves to producing instruments for the protection of judicial and economic independence, one of them being the qualified vote in the event that a bill affects the organization and functioning of the Judicial Branch.

In Judgment No. 2006-07965 of 4:58 p.m. on May 31, 2006, this Chamber established that:

"VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the exclusive exercise of the jurisdictional function corresponds par excellence to the Judicial Branch -as indicated in the previous recital-, the truth is that it also exceptionally or extraordinarily exercises functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to an organ or entity and, also, does not possess a typical content that characterizes it, since, as the doctrine has well pointed out, it is easier to describe public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and needs an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, in a prompt and fulfilled manner. This is what has been called the "public service of administration of justice." Thus, the support or auxiliary administrative apparatus that enables judges and courts to issue their decisions makes up that service, such that the concept refers to the administrative profiles of the jurisdictional function, such as the organization and operation of the courts, logistics—provisioning and supplies—, the efficient and effective 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 Full Court, the Superior Council of the Judicial Branch, the Judicial Inspection Tribunal, the Judicature Council, and, in general, the various administrative departments—Executive Directorate, Procurement Office, Personnel, etc.—) and auxiliary bodies attached to it, such as the repressive police exercised through the Judicial Investigation Agency (Organismo de Investigación Judicial), the exercise of public prosecution by the Public Ministry (Ministerio Público), and the provision of free defense through the Public Defense (Defensa Pública). However, although that materially administrative function is carried out by the apparatus or organization supporting or backing the jurisdictional function, it must be understood in a strictly exceptional sense, that is, only that which is necessary and suitable to assist in the exercise of the materially jurisdictional function is admissible, and nothing else. By reason of the foregoing, through application of the constitutional principle of jurisdictional reserve or exclusivity, it is required that the Judicial Branch must use and dedicate the majority of its resources to the exercise of a materially jurisdictional function.

*VII.- ECONOMIC AUTONOMY AND INDEPENDENCE OF THE JUDICIAL BRANCH.* One of the great historical achievements of the Costa Rican Constitutional Rule of Law was the economic autonomy of the Judicial Branch, achieved through the partial reform of the Political Constitution of November 7, 1949, by Law No. 2122 of May 22, 1957. That law added a second paragraph to the original version of Article 177 of the Political Constitution, which provided as follows:

“(…)

The budget proposal shall assign to the Judicial Branch a sum no less than six percent of the ordinary revenues calculated for the economic year. However, should this sum prove greater than that required to cover the fundamental needs budgeted by that Branch, the aforementioned department shall include the difference as surplus, with a national investment plan, so that the Legislative Assembly may determine what is appropriate (…)”.

This partial reform of the Constitution strengthened, in a manner consistent with Article 9, which proclaims the separation of functions, the independence of that Branch of the Republic. The constitutional amendment arose from the proposal made on September 6, 1956, by then-Magistrate Evelio Ramírez to the Full Court (Corte Plena), a collegial body that approved it at the session held that same day. In the justification for the constitutional modification—which would later become the statement of legislative intent for the reform in the legislative process—Magistrate Evelio Ramírez insisted on the need to assign the Judicial Branch a minimum or a “sum no less than six percent of the ordinary revenues calculated for the economic year,” to overcome the lamentable situation of that Branch of the Republic, which, in the seven years preceding 1956, had received an average percentage of only 2.75% relative to the General Revenue Budget. The stated purpose of the Magistrate who proposed the constitutional reform and of the Full Court in accepting his proposal was to have greater financial resources to diversify and strengthen the various jurisdictional orders (sic), increase the number of courts and tribunals and the personnel necessary to meet the demand for the service, reform and improve procedures, provide adequate infrastructure and material resources to the courts and tribunals, improve the salaries of those dedicated to the delicate and difficult task of administering justice and their retirement or pension system, all in the interest of securing more prompt and complete justice. In that sense, Magistrate Evelio Ramírez made considerations such as the following:

“(…) the Supreme Court of Justice, knowing better than anyone the true needs of the Judicial Branch, would prepare its own preliminary budget draft, taking into account the factors that, in its judgment, require economic variations within an honest, rational, and fair criterion. And not only would it attend to the proper installation of its many offices—which today offer an almost ruinous aspect throughout the Nation—but it would also supply them with typewriters, adequate furniture, and other material means indispensable for working with the greatest possible efficiency. Furthermore, all judicial servants could be paid more equitably (…) The very Retirement and Pension Fund—whose stability is seriously threatened—could be reinforced from that global allocation (…) The average percentage that has corresponded to the Judicial Branch over the last seven years has been 2.75 percent, relative to the General Revenue Budget (…) Experience has shown that the indicated percentage is entirely insufficient for the adequate functioning of the Judicial Branch. To realize this, one need only consider the inadequate buildings occupied by almost all the tribunals of the Republic, the slowness with which various judicial matters are processed due to the scant number of tribunals and the personnel available to those currently functioning, the insufficient number of typewriters and other furniture that are imperatively necessary, the low compensation of judicial servants, etc., etc. (…)”.

For its part, the special legislative commission appointed to issue a report on the bill to reform Article 177 of the Constitution, in the first legislative session, in its report of October 9, 1956 (visible at folios 20-21 of the legislative file), found as follows:

“This constitutional reform—with which the autonomy of the Judicial Branch in the economic aspect will be definitively secured—will make it possible for the multiple problems currently confronting that Branch due to the limitation of economic resources assigned to it in the national budgets to find an adequate solution in the future. Those problems date back a long time and worsen day by day as a consequence of the growth and development of the population, which demands ever more administration of justice services. The judicial offices do not have sufficient personnel to attend to the many problems that arise daily and, materially, are housed, with very few exceptions, in entirely inadequate premises and without sufficient furniture or equipment (…) The remuneration of judicial servants is, moreover, meager, such that the judicial career offers no incentive or attraction to those who wish to begin it, and this often drives away individuals of vocation and ability who could, under other conditions, serve as Alcaldes, Judges, or Magistrates”.

Consequently, the guiding idea that inspired the 1957 constitutional reform was to strengthen the organization and functioning of the Judicial Branch, so that it would efficiently and effectively exercise its essential function of imparting or administering justice. Under this understanding, any provision of the ordinary legislator tending to attach to the organization of the Judicial Branch bodies that exercise materially administrative competencies foreign to, or not concerning, 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 employment—even if only in a small percentage—of the minimum budget guaranteed to it for other purposes. It can be affirmed, then, that paragraph 2 of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees the effective exercise by any person of the fundamental right established in Article 41 of the Political Constitution to access jurisdiction and obtain prompt and complete justice.” The assertion that administrative competencies essential to the organization and connected to the jurisdictional function are not being removed is quite relative, if, as explained above, an organizational and personnel administration aspect of the Judicial Branch is being modified. With this, the history of the constitutional amendment is ignored, where it was indeed contemplated as justification for passing the reform to Article 177. The majority affirms that it concerns the same essential content of a legal institution, but in doing so, the law eliminates the administration of pensions from the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), to grant it to an Administrative Board of the Retirement and Pension Fund of the Judicial Branch (Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial). It is true that it remains within the Judicial Branch, but now in a deconcentrated body, which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156 of the Constitution). There is a schism that affects the organization of the Judicial Branch, broadly speaking, its capacity to organize itself, the handling and administration of the fund for the exercise of the social security rights of Judicial Branch personnel, which, it must be said, is contrary to the criterion of the Full Court, due to the omission of conducting an institutional consultation, and for ignoring its opinion contrary to the principle of functional legality of a Branch of the Republic. It should be remembered that the reform to Article 177 of the Constitution was conceived with the vision of reinforcing judicial independence, including that of its officials, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly incorporated later into the 1949 Political Constitution, did not go so far as to explicitly include the lifetime tenure (irreductibilidad) of judicial officials’ salaries, as in other latitudes; however, it did work in our country because it allows it to enjoy the indices of judicial independence that Costa Rica has comparatively enjoyed at a global level, which is clearly the fruit of the economic independence of the Judicial Branch. This has been due in part to the recognition of the public employment system (régimen de empleo público) that was consolidated throughout the republican life of this country.

Ruling (Sentencia) No. 1996-03575 of 11:18 hours on July 12, 1996, stated regarding:

“… the Public Employment System, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that these—Executive, Legislative, Judicial, and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones)—are the most capable of determining their needs and understanding their particular conditions.” Ruling No. 1998-005795 of 16:12 hours on August 11, 1998, established that:

“From the provisions of Article 154 of the Political Constitution—which states:

‘The Judicial Branch is subject only to the Constitution and the law, and the decisions it renders in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts.’ derives the principle of the independence of the Judicial Branch, which encompasses both the body or institution as a whole, and the Judge in hearing the matters submitted to his judgment. In relation to this official, it must also be recognized that there exists a dual protection of his investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is both external and internal, in the sense that he is protected from influences and incidences—both external and internal—that might sway him one way or another in deciding a specific case submitted to his knowledge, so that he may rule in strict adherence to the provisions of the applicable law; in other words, the judge is protected so that neither the parties intervening in the proceeding, third parties, superior judges, ‘influential’ members of the Branches of the State, including the Judicial Branch itself, can influence his decision, such that it would be even less permissible to have the obligation—imposed by a superior judge—to rule in a specific manner on a specific case or to coerce the judge in that sense. The guarantee of the independence (sic) of judges, more than a guarantee for these officials—which it effectively is—constitutes a guarantee for private individuals (parties to the proceeding), in the sense that their cases will be decided in strict adherence to the Constitution and the laws.” Ruling No. 1998-005798 of 16:21 hours on August 11, 1998, this Chamber (Sala) established that:

“The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154 (sic). The American Convention on Human Rights (Convención Americana sobre Derechos Humanos), international regulations of direct application in our country, also addresses the subject. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that:

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

2. ...’ The independence of the Judicial Body (Órgano Judicial) is posited externally. The Judicial Body is independent vis-à-vis the other Branches of the State, but not so the judge, whose independence must be analyzed in a more complex manner. Yet, when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, for it is they who must make real the function entrusted to it; it is to this independence that I shall refer herein. The independence that must truly be of interest—without detracting from the importance of that of the Judicial Body—is that of the judge, related to the specific case, for it is this that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch helps the judges who constitute it also to be independent, but it may well occur that the Body as a whole has its independence normatively guaranteed, yet its members are not independent, for multiple reasons.” This is no small matter, since the organization and administration of the judicial function must not only be limited to the jurisdictional part, as the majority understands it, but is complemented by other organizational functions, which should be respected as a Branch of the Republic. As stated earlier, the amendment to the Political Constitution contemplated not only jurisdictional aspects but also operational aspects of the Judicial Branch; therefore, it was contemplated by the original Constituent Power in Article 167, because from within the Full Court in 1956, and in the Legislative Assembly in 1957, it was adopted from that foundational era of the Second Republic to respond to the needs of officials in their salaries and pension system (régimen previsional), a core precept for Costa Rican democracy.

It is evident that the Pension and Retirement Fund of the Judicial Branch (Fondo de Pensiones y Jubilaciones del Poder Judicial) formed an essential part of the economic independence of the Judicial Branch of that era, and must continue to be so in our own, according to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The derived Constituent Power, in accepting the vision of the Full Court, took a decisive step to receive the management independently and autonomously from the rest of the political branches, which, in turn, allowed said management and governance to be carried out within the legal and constitutional purposes of the administration of justice. Nor can it be affirmed, as the majority states, that the recognition of the 6% constitutional percentage was smooth and without any problem; on the contrary, the nature of it is that the relationship between branches has been stony, rough, abrupt, such that every budget has been obtained through great effort or timely negotiation by the representatives and authorities of the Judicial Branch. In fact, the Constituent Power foresaw such a possibility of negotiation and consideration by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Political Constitution, with 6% of the ordinary revenues of the Republic’s economic year, is an aspect that has served as a stimulus for the legislator to use the orbit of the Judicial Branch as an aggregating factor for administrative institutions foreign to the judicial function. Precisely, Ruling No. 2006-07965 of 16:58 hours on May 31, 2006, cited above, concludes with a declaration of unconstitutionality of provisions of the Notarial Code (Código Notarial), for establishing a body of an administrative nature—the Directorate of Notaries (Dirección de Notariado)—within the Judicial Branch, in violation of the constitutional principles of separation of functions, jurisdictional reserve or exclusivity, independence and financial autonomy of the Judicial Branch, and the right to prompt and complete justice of the inhabitants of the Republic.

In continuity with Ruling No. 2017-09551 of 11:40 hours on June 21, 2017, it was also indicated that:

“For all of this, we must recognize that in order to rationally organize work, with effectiveness, efficiency, simplicity, and speed (celeridad), every primary function must be accompanied by the other functions—non-primary to the constitutional body—and be aligned toward the primary function; it is thus how it must be recognized that both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, reaches the human resources or personnel of the Branches of the Republic, insofar as behind the fundamental function lies the administrative function of personnel, agents, and public servants, etc. Evidently, in the Costa Rican context, it would be a serious contradiction to move against a long legislative tradition of entrusting attributions to a single Branch (which does not exist in other latitudes), but thinking of ensuring those horizontal controls within an independent Judicial Branch.” Thus, if matters related to pensions and retirement of the Judicial Branch were included as part of that economic independence of the Judicial Branch as a substantive issue since 1956, it is, for the undersigned, an additional reason to seek the application of Article 167 of the Political Constitution, since the change of scheme toward a deconcentration of the administrative body was brought about by a later law. This sets the bad precedent that, in the future, transitory majorities in the Legislative Assembly might encroach upon other aspects of Judicial Branch personnel management.

Another reason is that a reinforced majority guarantees not only judicial independence from an institutional standpoint, but also for the person of the male judge (juez) and female judge (jueza) individually considered, affecting the economic, social, and cultural rights 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”; its strategic and key position within its organization must also be felt, with the highly specialized, law-abiding public functions of its officials, as described earlier in the background of this Court, and whose function is final in the resolution of conflicts and as a pacifier thereof. This clearly has a cost and sacrifice for its personnel, which must be compensated by the “State,” but even more so in a functional democracy like Costa Rica’s, which must assume not only the economic part of its support but also its protection.

The purpose of judicial independence is to guarantee judicial impartiality, which is shared with the majority of the Court, though not with the clarity that this minority would desire, given that the problem of the reform to Article 177 of the Political Constitution crystallized the deeply felt need to protect in general terms the institutionality and administration—also—of everything relating to the personnel of the Judicial Branch, which should be jealously safeguarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed, in the face of the regressive effects of legislation that may arise in the future.

It is necessary to invoke the constant rule regarding the importance of protecting the remuneration and the pension regime of judges and their officials in the world's most important legal systems.

Thus, the undersigned magistrates consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the failure to consult the Judicial Branch on the text approved by Parliament by an absolute, and not qualified, majority, which affects it in its entirety (Article 167 of the Political Constitution), by affecting its organization, structure, functioning, and independence; and, thereby, it is contrary to the Law of the Constitution. In light of the foregoing, it is irrelevant—for the undersigned adjudicators—to proceed to analyze the remaining substantive arguments made by the claimants against the law's material content, except in those cases where taking a position was required so that a vote of full conformity could exist (Article 60.2 of the Civil Procedure Code), which is reflected in the majority ruling of this Chamber." Thus, the undersigned magistrates Salazar Alvarado, Garita Navarro, and Magistrate Jara Velásquez, hereby record our dissenting vote.- **Luis Fdo. Salazar A.** **José Roberto Garita N.** **Rosibel Jara V.** Regarding the reasonableness and proportionality of the eligibility requirements and the benefits established in Chapter I “Benefits” (“Prestaciones”), as amended by Law Number 9544.-<a name=\"_Hlk54591286\"></a>&nbsp; To explain their claim regarding the alleged violation of the principles of reasonableness and proportionality that occurred with the issuance of the questioned Law Number 9544, some of the claimants indicate that the eligibility conditions and retirement benefits do not follow the technical studies that were provided to the legislative file, while another group of claimants acknowledges that the Legislature relied on technical studies, but dismissed more suitable options, thereby affecting the reasonableness of its decision.

In this regard, we have that the chapter on “benefits” (“prestaciones”) of Law 9544 incorporates the modification of the requirements under which judicial employees can obtain the right to retirement and the economic amount thereof, as provided in Article 224 of that legal text:

“**Article 224-** Judicial employees with twenty or more years of service in the Judicial Branch (“Poder Judicial”) may qualify for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (“índice de precios al consumidor”, IPC), defined by the National Institute of Statistics and Censuses (“Instituto Nacional de Estadística y Censos”, INEC), provided that 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 an early retirement (“jubilación anticipada”), in the following terms:

“**Article 224 bis-** Employees with twenty or more years of service in the Judicial Branch (“Poder Judicial”) may qualify for an early retirement (“jubilación anticipada”) if they do not meet the age or the number of years of service cited in the previous article. This shall be calculated as follows:

• a)If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement shall be calculated in proportion to the employee's age:
• 1)Women must be at least sixty years old and men at least sixty-two years old.
• 2)The calculation shall be made by multiplying the pension obtained according to the provisions of Article 224 for the calculation of ordinary retirement, by the employee's age, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement (“jubilación anticipada”).
• b)If retirement occurs when the employee reaches sixty-five or more years of age, but before completing thirty-five years of service, the retirement shall be granted in proportion to the years worked, provided that the number of years served is not less than twenty. To set it, the amount of the ordinary retirement, indicated in Article 224, shall be multiplied by the number of years served and the product shall be divided by thirty-five; the result shall be the amount of the early retirement (“jubilación anticipada”).” The contrast between the current law and the previous one, on the issues addressed by the articles cited above, yields the following:

**a)** *Regarding age*, with the new (challenged) text, the age for **ordinary** retirement is at least 65 years. The text of the repealed rule required having reached at least 62 years of age (repealed Article 224), which shows an increase of 3 years in the minimum retirement age.

**b)** *Regarding the number of years of service*, the new (challenged) text provides the obligation to have at least 35 years of service. In contrast, the repealed rule required having worked at least 30 years in the “public administration” (“administración pública”) (repealed Article 224). The general years-of-service requirement was increased by 5 years, as can be seen.

**c)** To this, it must be added that it is now required to demonstrate 20 or more years of service worked within the Judicial Branch (“Poder Judicial”). In the previous text, it was required to have worked for the Judicial Branch (“Poder Judicial”) for the last 10 years before retirement (repealed Article 231).

**d)** *Regarding the amount of the retirement benefit.* In the new (challenged) rule, the gross amount of ordinary retirement is defined as eighty-two percent (82%) of the average salary of the last 20 years of ordinary monthly salaries earned in their working life. In contrast, in the previous legal text, the gross amount of ordinary retirement was defined as one hundred percent (100%) of the average of the last 24 best ordinary monthly salaries earned in the service of the Judicial Branch (“Poder Judicial”).

On the other hand, regarding early retirement (“jubilación anticipada”), the changes are summarized as follows:

**a)** *Regarding retirement by years of service:* the (challenged) text allows obtaining early retirement (“jubilación anticipada”) without having the required age (65 years), provided that the years of service (35 years) have been completed. However, a minimum age is set for this type of retirement by years of service, which differs according to sex, and which shall be 62 years for men and 60 years for women. In the previous legislation, the possibility of early retirement also existed upon completing the required years of service (30 years), without requiring a minimum age, and without distinguishing between men and women. (repealed Article 225) **b)** *Regarding retirement upon reaching age.* The current (challenged) text also allows early retirement by age, that is, without having the required time of service (35 years) but provided that the age established for ordinary retirement (65 years) has been reached and —in addition— there is a minimum time of service of twenty years worked within the Judicial Branch (“Poder Judicial”). The previous legislation also contemplated this possibility of retirement by age, for which the condition of being at least 60 years old and having at least ten years of service had to be met (repealed Article 225).

**c)** *Regarding the amount of the early retirement benefit (“jubilación anticipada”).* For both cases of early retirement (“jubilación anticipada”) (by years of service or by age), the method of calculating the amount refers to the new method of calculating the gross retirement amount set forth in Article 224 of the challenged law.

Thirdly, it is observed that the pensions of those who become permanently disabled have not been affected in their particular structure; rather, the objection is linked to the change suffered by 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 the contingency will depend.

The claimants warn that precisely with this reformulation of requirements and benefits established in the challenged Articles 224 and 224 bis, the beginning of the substantive problems that, in their opinion, Law 9544 contains is marked, since the retirement age and the number of years the official must work are increased, while the sum they will receive as retirement is reduced relative to the salary they were earning upon retiring, to which is added that the application of all legally established deductions generates that the amount to be received is in many cases less than 55 percent of the last salary received, which is clearly ruinous. Thus, they indicate an injury to the principles of reasonableness and proportionality since —for some of them— the Legislative Assembly (“Asamblea Legislativa”) departed from the technical criteria and chose to adopt a system lacking foundation and support, while another group affirms that, although technical criteria were heeded, less harmful and more reasonable and proportionate options that were raised during the course of the legislative process were set aside.

**XXVI.- Magistrate Hernández López continues writing.** The informants called to this process indicated the following regarding the injury to proportionality and reasonableness of the new design. The Attorney General's Office (“Procuraduría General de la República”) states in its report that the need to make the disputed changes in the Judicial Branch (“Poder Judicial”) pension system derives directly from the actuarial studies on which said reform was based. In other words, increasing the retirement age and the number of years of contributions and reducing the economic benefits in favor of retirees was not a decision adopted at the whim of the legislator, but rather is the result of the situation of the system, which was reflected in the aforementioned actuarial studies, concluding that the changes made have the necessary technical support to affirm their conformity with Constitutional Law. It notes that the issue was already the subject of specific analysis by the Chamber in the legislative consultation of constitutionality that gave rise to judgment number **2018-5758**, amply mentioned. It finally explains on this point that the new text of 236 of the LOPJ expressly provides that the deductions may not exceed 55 percent of the gross amount of the established retirement or pension; all of this, added to the existence of technical studies on which action was taken, means the modifications do not infringe the principles of reasonableness and proportionality.

In the report rendered by the President of the Legislative Assembly (“Asamblea Legislativa”), it was indicated: “It must be understood then, that the law under analysis does not respond to arbitrary or whimsical criteria —a situation already analyzed by the Honorable Constitutional Chamber—, so it does not imply any violation of the constitutional principles of reasonableness and proportionality,” referring to the fact that the Special Commission that issued the opinion on the project took the referred technical study into account, as well as that it had participation from the Technical Committee created by the Judicial Branch (“Poder Judicial”), and also referring to the fact that in judgment number 2018-005758 of 3:40 p.m. on April 12, 2018, the Chamber had noted that such technical studies were available.

The Vice President of the Supreme Court of Justice, in her report, notes that in relation to the percentage established in Article 224 of Law Number 9544, it is necessary to take into account that judicial employees, at the time of qualifying for their retirement, continue contributing to the Judicial Branch Retirement and Pension Fund with a worker contribution of 13% according to Article 236 of that same body of law, unlike other retirement and pension systems; therefore, the amount of their retirement would be diminished, 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, which establishes a commission for administrative expenses of five per thousand of the salaries earned by judicial employees, as well as from the retirements and pensions managed by the fund, which could be seen as confiscatory (Article 40 of the Constitution) or violative of the principle of non-retroactivity of the law (Article 34 of the Political Constitution), given the existence of acquired and consolidated proprietary rights under a prior law.

The Vice President of the Judiciary also mentions that according to the report approved by the Full Court in session number 26-17 of August 7, 2017, article XXX, “(…) this Court has been and will be respectful of the technical studies issued to ensure the sustainability of the Fund; however, it cannot be overlooked that fundamental rights are at stake, and that is why the reform also deserves a study adhering to actuarial technique but also with a human rights perspective.” In that sense, it is worth noting that ILO Recommendation No. 43 “Recommendation concerning Invalidity, Old-Age and Survivors’ Insurance,” in point 13), subparagraphs (a) and (b) states that:

"(a) To guarantee workers a deprivation-free old age, the pension should cover essential needs. It is therefore appropriate that the guaranteed pension for any pensioner who has completed a determined qualifying period be fixed with due regard to the cost of living.

(b) In contributory schemes with contributions proportional to salaries, insured persons who have paid into their account the contributions corresponding to the average duration of active working life should obtain a pension that corresponds to their social situation during the period of occupational activity. To this end, the guaranteed pension for insured persons having completed thirty effective years of contributions should not be less than half of the insured salary from entry into the insurance scheme or during a specified period immediately preceding the calculation of the pension (Emphasis added)." It is clear, then, that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization agree in establishing that retirement and pension must satisfy the essential needs of individuals 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 occupational activity.” That is to say, the standard of living that the working person had during their active professional life must be respected.

The need to reform the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) to ensure sustainability is not ignored, but these reforms must be clothed in suitability and reasonableness, as indicated by the Constitutional Chamber (Sala Constitucional) in vote No. 2010-1625 at 9:30 a.m. on January 27, 2010, when declaring unconstitutional the pension cap established in article 234 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial). The foregoing is consistent with what was said by the Inter-American Commission on Human Rights when, analyzing the admissibility of the case “Admissibility and Merits Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras v. Peru” (1), it outlined that the mentioned article 26 does not exclude the possibility that a State may impose certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis has been made of the individual impact on the right (in this case, to retirement and pension) in relation to the collective implications of the measure.” **XXVII**.- **Drafted by Judge Araya García**. This Court considers that, as the Attorney General's Office (Procuraduría) and the Presidency of the Legislative Assembly point out, both the question of the absence of technical criteria to support the decisions of the reform operated in the Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones) of the Judiciary, and the fact that a more favorable option for the fund participants was disregarded regarding eligibility requirements and the method of calculating retirement benefits, were already addressed when this Court had the opportunity to analyze the legislative texts with the wording that ultimately became law of the republic. In judgment 2018-5758, which responded to the cited constitutional consultation, the following was stated on that aspect:

“ **XIX.-Regarding the lack of studies to establish the pension calculation**. The consultants consider that article 224 of the bill is contrary to numeral 73 of the Political Constitution. They argue that the questioned article provides that the pension calculation will be obtained from the average of the last 20 years’ salaries earned by the worker, without having technical studies regarding the real impact on the fund's reserves. They add that the study that served as a basis was the one issued by the University of Costa Rica (Universidad de Costa Rica), but in it, the limit for the pension calculation was set at the last 120 salaries (10 years), so they consider that the Special Commission exceeded its assessments, given that, without technical justification, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. Likewise, they consider it illegitimate that the annual percentage of returns on the Fund's investments is taken as an absolute 3%, without considering that the real returns were higher. Regarding the first of the allegations, the Chamber considers that, after analyzing the case file, the alleged defect is dismissed, since at folio 2942 of the legislative file, official letter number IICE-186-2017 of August 18, 2017, appears, in which the director of the Institute of Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas) of the University of Costa Rica endorses the parameter established by article 224 of the bill, mentioning, on the matter, the following:

“a. Reference salary for calculating the retirement or pension amount In the article 224 to be reformed, the Majority Opinion calculates the reference salary (SR) as the average of the last 20 years (SR20), updated with the consumer price index calculated by INEC, while the IICE_3 and IICE_4 frameworks calculate it as the average of the last 10 years (SR10), adjusted by the same index. It was estimated that the average salary of the last 20 years, adjusted for inflation, is 4.8% lower than the average salary of the last 10 years for new pensioners, given the merit scale in force in the Judiciary. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulations, acts in favor of the actuarial solvency of the Retirement and Pension Fund, an aspect we will refer to in the following subparagraph.

b. Employee contribution and benefit of the affiliates (…)

Now, 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 commented, consists of a differentiated scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale were already noted, which, being left to the discretion of the Administrative Board (Junta Administradora) of the Judiciary itself, also runs the risk of being set in practice closer to 11% than to 15%, which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined employee contribution with a reasonable link between this contribution and the benefit received by the fund affiliates. 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 sets the employer contribution at 14.36% (article 236, subparagraph 2), unlinking it from proportional increases in the employee contribution, an aspect that adheres to what was recommended by the IICE.” In that sense, upon verifying that, contrary to what is stated in the initial brief, a technical criterion does exist that endorses the parameter set by the bill regarding the reference salary for the pension calculation, the Court dismisses the existence of the alleged defect.

On the other hand, regarding the second of the consultants' allegations, the Chamber considers that, in essence, what is being questioned is whether the parameters that served as the basis for setting the requirements to obtain the pension right were suitable or not, a point that does not imply that the norm is unconstitutional, as the consultants consider, hence it is considered that the defect is nonexistent.” Similarly, it had been previously stated in the same judgment:

**“XV.- Regarding the alleged violation of the principle of judicial independence**. **(…)** The Chamber considers that the foregoing fulfills what is 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 set of socioeconomic rights, and that if an administration needs to adopt regressive measures for the right to pension and retirement, it must have a technical study regarding the effects these may have on the rights of those affected and the regime, as well as that there are no less burdensome measures that could have been taken, a situation that is met in this case, considering the analyses carried out by the University of Costa Rica in the actuarial studies of the Retirement and Pension Fund of the Judiciary. (…) Thus, in accordance with the foregoing, the Chamber does not consider that the alleged defect is present.” And it added a little further on:

**“XVII.- Regarding the changes in the requirements to obtain the pension right.** The consultants consider that article 224 of the bill violates the principles of proportionality and reasonableness because the retirement age and the number of years the official must work are increased, but the percentage of money they will receive as a pension with respect to the salary they earned is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the pension right may do so under what is established by Law No. 7333. The questioned norms provide the following: (…) It should be noted that the right to retirement is not unrestricted, as it can be subjected to certain limitations, provided these are established by formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the power to establish restrictions on the right to retirement when it is proven that certain situations exist that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such. On the matter, in vote number 2379-96 at 11:06 a.m. on May 17, 1996, the following was established:

(…)

Now, from the foregoing, it clearly emerges that the right to retirement can be subjected to limitations, like any other fundamental right. The foregoing implies that there is no individual right to retire under specific conditions, as these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, because otherwise, conditions could be created that make the system financially unsustainable, which, ultimately, would lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds preventing the payment to the interested party of their retirement amount. Given this panorama, the Chamber considers that the questioned norms are not unconstitutional, insofar as their purpose is, precisely, to guarantee the permanence of the Retirement and Pension Regime of the Judiciary, for which parameters and requirements were set based on the opinion of experts received by the Special Commission that issued a report on legislative file number 19,922, as well as on technical studies that confirmed the existence of a problem that may affect the sustainability of the mentioned Regime, and for which they issued a series of recommendations. In this sense, upon verifying that the variation of requirements set forth by numeral 224 and the deadline set by Transitory Provision VI of the bill have the ultimate goal of guaranteeing the right to retirement of judicial servants, the Chamber dismisses the alleged defect.” (judgment 2018-5758).

In view of the foregoing and given the lack of new convincing elements provided by the plaintiffs on these aspects, the Court finds it proven —**first**— that the unsustainability of the Judiciary's Retirement and Pension Fund was a real fact at the time when both the Supreme Court of Justice and the Legislative Assembly decided to initiate a process of reforming the institution's retirement regime, supported by a technical assessment that operated as technical input to address the financial problems threatening the Fund. **Second**, the Chamber reaffirms what was stated in judgment 2018-5758, regarding the validity and constitutional relevance 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 legitimate constitutional framework of the legislator's action in retirement matters as explained in that text.

In the <u>third</u> place, what was stated in judgment 2018-5758 is also reaffirmed regarding the existence of adequate technical support that underpins the text that finally became law of the republic, insofar as the final parameters established were indeed technically endorsed as explained in detail in the recently cited judgment 2018-5758.

**XXVIII.-Magistrate Araya García continues writing.** Notwithstanding the foregoing, the claimants reiterate the lack of constitutional reasonableness and proportionality of the decision taken and specifically maintain that the technical report offered legislators more favorable options for the economic interests of the fund participants and that left the purpose of the legislation intact, but, despite this, that option was not enacted into law, thereby violating the condition of suitability that forms part of the parameter of constitutional reasonableness. On this point, the Chamber observes that the Judicial Branch formalized Agreement R-CONV-005-2016 with the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica, in order for it to carry out an actuarial study to determine the solvency of the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). In what is relevant, from this study arose clear and compelling evidence of the unsustainability of the current configuration of said fund, and for that reason four proposals for new "regulatory frameworks" (IICE frameworks 1, 2, 3, and 4) were offered as a technical exercise to evaluate different possibilities for rearranging the variables affecting the operation of the pension regime in question. Of these, according to the technical study itself, numbers 1 and 2 do not meet solvency and sustainability characteristics and were included to show the way in which the different values of the variables affected the final result. For this reason, and as the claimants point out, the technical report recommended to the Assembly two possible technically viable combinations: IICE framework 3 and IICE framework 4, for the modification of the regime; however, the Chamber does not share the conclusion of the interested parties in the sense that the foregoing implied, for the legislator, an exclusive choice between those two alternatives: first, because neither of them aspired to be "the best possible option" but rather were proposed 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 and benefit variables (as ultimately turned out to be the case, as will be discussed); and third, because the choice of either of the two options (IICE 3 OR IICE 4) or the construction of a different one, necessarily imposed on legislators an exchange and balance between the different variables related to contributions, eligibility conditions, and benefits to be received. Thus, for example, on the same shared basis of general eligibility requirements (65 years of age and 35 years of service); the method of calculating the reference salary (salario de referencia) (average of the last 10 years worked); the existence of a maximum retirement payment cap of 10 times the base salary of the Judicial Branch, and a solidarity contribution (contribución solidaria) for those receiving high retirement benefits, the IICE3 framework proposed, for an ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a worker contribution (aportes de trabajadores activos y jubilados) that was lower (on the order of 11%), while IICE4 proposed providing a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution (on the order of 15%). Faced with this state of affairs, the option adopted by the Legislative Assembly is not arbitrary, as it consisted of constructing—with the technical elements provided—an intermediate proposal between the IICE3 and IICE4 frameworks originally recommended. That is, on the same common basis of requirements of the cited frameworks, regarding age and service conditions; the cap on the retirement amount; and the establishment of a solidarity contribution for retirement benefits exceeding the latter, the Assembly 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 the IICE3 framework, but 3 percentage points lower than the 85% set in the IICE4 framework). Likewise, the percentage of worker contribution (contribución obrera) was set at 13% (that is, 2 percentage points more than the 11% of the IICE3 framework, but 2 percentage points less than the 15% established in IICE4). It should be noted that similar considerations can be made in relation to the cases of early pensions (pensiones anticipadas) and disability pensions (pensiones por invalidez). However—and this is what the arguments of several of the appellants seem to focus on—the Legislative Assembly changed the formula for calculating the reference salary, setting it at the average of the last 240 salaries (20 years worked) compared to the average of the last 120 salaries (10 years) used in the IICE3 and IICE4 frameworks; this change implied, according to the technical authority itself, a decrease of 4.8% in the average salary that would serve as a reference for setting the retirement payment.

With this picture, it must then be determined whether this set of actions by the Assembly falls within the realm of the unreasonable by being unsuitable, and the conclusion of the majority of the Court is that the alleged defect is non-existent, since it was precisely an intermediate choice between the two recommended frameworks, a choice regarding which it has not been demonstrated that it entailed a substantial and relevant worsening of the conditions of the fund participants, compared to those offered in the IICE3 or IICE4 frameworks, this because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this case file precise and reliable data to affirm that—all conditions considered— a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, but at the same time offering levels of protection clearly and compellingly greater for the fundamental rights at stake. To this must be added the fact that, precisely, the task of the legislator consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the regulatory structure that, in its judgment, turns out to be the one that best adapts to the state purpose pursued. That is its task as representatives of the people, and this Chamber must not substitute such competence nor the power to develop, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund. Finally, it should be repeated that the regulatory proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which indicated the technical propriety of that design finally adopted through report IICE-186-2017, which appears at folios 2942 and following of the legislative file, as explained in judgment 18-5758 of this Chamber, cited supra.

As indicated in Considerando VI of this judgment, the Institute for Research in Economic Sciences (IICE), in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. It particularly states, regarding the project approved by a majority, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution (contribución especial solidaria) of 50%, the worker contribution on a differentiated scale, the early retirement age with differences by gender, act in favor of the actuarial solvency of the fund. Meanwhile, in the case of the minority opinion (folios 2945 et seq. same volume) which was in favor of:

· Using a lower reference salary, calculated on the average of the last 10 years adjusted by the CPI. On this point, it is indicated that this method of calculation is less favorable for the actuarial solvency of the fund, and that its effect must be analyzed in conjunction with other characteristics and parameters such as the age for ordinary or service retirement, worker contribution, solidarity contribution, and transitional provision (transitorio).

· 85% of the reference salary with a worker contribution of 11%. In this regard, it points out that the 11% worker contribution should be associated with a retirement or pension that does not exceed 72.5% of the reference salary calculated with the last 120 salaries adjusted by the CPI, in order to maintain actuarial solvency.

· An age of 62 for men and 60 for women is proposed, and a minimum age is not established for early or service retirement. In this regard, it is pointed out that, in this scenario, even with a contribution of 15% on salaries, retirements, and pensions, the fund becomes insolvent if a benefit of 85% of the reference salary is maintained. It adds that “the analyses conducted by IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous test of actuarial solvency.” In particular, it states:

“ i. If the worker contribution is maintained at 11% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 3 million million colones, and the actuarial insolvency would be greater than 30% of the promises.

ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 1.7 million million colones, while the actuarial insolvency would be greater than 17% of the promises.

· Solidarity contribution of 20% of the excess over the maximum cap defined for retirements and pensions, which is set at 10 base salaries. This percentage may be increased to 50% “if so recommended by an actuarial study and approved by the Fund's Administrative Board (Junta Administrativa del Fondo).” Regarding this proposal, IICE points out that by reducing the contribution to 20%, part of the equalizing effect of said contribution is lost.

· Transitorio V. The Transitorio V proposed by the Minority Opinion extends the benefits of the current law by 10 additional years beyond the 18 months recognized as a vested right; although the benefit is established as 100% of the reference salary based on 120 salaries adjusted by the CPI, the transitory provision does not contemplate graduality, so its effect on solvency approximates that of the transitory provision of the Full Court bill, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less graduality, it is less favorable relative to Transitorio IV of the Majority Opinion in terms of its impact on the actuarial solvency of the fund.

· Employer contribution. It is proposed that the Judicial Branch employer contribution (currently 14.36% of the salaries and wages of members) “shall be adjusted proportionally in accordance with the increases that the Administrative Board agrees to as the contribution of the judicial workers…”. “The IICE team considers the preceding clause entirely inadvisable.” “The position is that the guarantee of solvency should not rest on the state contribution and thus avoid further deterioration of the country’s already delicate fiscal situation.” · Credit operations: It was proposed to authorize the Administrative Board so that, with the Fund’s income, credit operations may be carried out directly or through a financial institution. On this topic, the IICE team stated: “…the eventual participation of the fund in credit operations must be analyzed with extreme care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which entail expenses and also risks that must be adequately assessed.” After these observations and the legislative discussion, modifications were made to the bill, in the majority of cases, to adapt them to the criteria issued by IICE, others to incorporate positions taken during the legislative discussion.

The claimants assert that there cannot be regressive measures in economic, social, and cultural rights, within which pension systems would fall. However, as the Committee on Social Rights of the Council of Europe and other Constitutional Courts, such as that of Colombia, have pointed out, it is possible to adopt regressive measures in the field of Economic, Social, and Cultural Rights (DESC), when they pursue a legitimate and relevant purpose, such as the improvement of another right or the general level of coverage of services that guarantee its effectiveness, or serve to avoid more burdensome measures and are technically supported. Thus, the constitutional conformity of measures cutting or modifying conditions regarding pensions requires that prior to the determination and as an unavoidable part of its reasoning, there must be technical support on the effects of the measures; the affected parties must have been heard because it concerns the income they currently receive, as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.

According to doctrine and Inter-American Jurisprudence, in cases of regressivity of DESC, it is necessary to verify the legitimacy of the purpose that the norm seeks to achieve, whether the restriction of rights is “suitable” or “adequate”, successively whether it is “necessary” or “indispensable”, and, finally, whether it is “proportional” in the strict sense or “balanced”. The purpose that the norm seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important purpose. The norm in question “(…) cannot have just any purpose, but rather must be oriented toward protecting values that have express constitutional support, either because the Charter considers them objective values of the legal system (…). This means that these measures must be not only admissible but also seek the realization of constitutionally important objectives”.

Likewise, it must be verified whether the means provided in the regulation to achieve the pursued end are adequate or not to effectively achieve said end or, in other words, “(…) the protective effect of the measure in relation to the interest or value sought to be promoted must appear clearly demonstrated.” No other means must exist to achieve the pursued end with the same effectiveness that are less onerous in terms of sacrificing the constitutional rights susceptible to limitation in each case or, in other words, “(…) that there is no other means that could lead to the end and that sacrifices to a lesser extent the constitutional principles affected by the use of those means.” What is sought in this step is to verify that the reduction or deterioration in the legal patrimony of individuals, that is, the affectation of constitutional principles and rights, is not greater than the benefit that such affectation is capable of reporting. In the words of the Inter-American Court, it must be verified whether “(…) the restriction of the rights affected is equivalent to the benefits that the provision generates.” If the damage produced to the legal patrimony of citizens is greater than the constitutional benefit that the regulation is capable of achieving, then it is disproportionate (…)”.

The Inter-American Court has likewise held that in economic matters and more specifically regarding budgetary issues and resource appropriation, the legislator has broad freedom of configuration, for which reason, in these cases, any proportionality assessments made must have a light intensity, which is precisely the category of rights under analysis.

As is shown from the legislative record, the Judicial Branch’s pension system had an actuarial deficit of more than 5 billion million at the time of the legislative discussion, which **endangered the patrimony of all the collective and passive members that make up the retirement and pension regime of the Employees and Officials of the Judicial Branch and public finances,** since the State would have to assume that deficit budgetarily at a precarious time for public finances. That is to say, there was not only a legitimate need to intervene, but a legal obligation to protect the balance of the fund, on which thousands of people and families depend, as well as the adequate safeguarding of public finances.

By way of example, what was stated by Dr. Max Soto Jiménez from the Institute of Economic Research of the University of Costa Rica (folio 1321) and part of his team, who informed the Commission that among the findings, the Institute of Economic Sciences Research of the University of Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of accumulated reserves and is 36% of the present value of the entire liability of the regime and that the substitute text discussed in the Commission is insufficient to guarantee the sustainability of the Judicial Branch’s pension regime. (see folio 1352 volume 7 legislative record).

Likewise (folios 2274 and 2275 volume 10), the intervention of Dr. José Antonio Cordero Peña from 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 we continue as things are at this moment, what is going to happen is that the people who retire in the coming years are going to eat up the fund’s resources from future generations and notice how curious it is, as we are all so long-lived, they are also going to eat up the funds that will 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 will no longer 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 University of Costa Rica, but years earlier by the cited Melinsky report, and by the Judicial Branch authorities themselves during the appearances, as well as the Judicial Branch unions themselves that participated during the legislative process and also formed part of the Judicial Branch’s technical teams that participated in the preparation of the 6 IICE products and endorsed the recommendations of the studies, now challenged in this action.

Indeed, as indicated in Considerando VI of this judgment, in the Agreement R-CONV-005-2016 signed between the Judicial Branch and the University of Costa Rica, **it is on record that the unions or labor unions of the Judicial Branch would have a representative on the Executive Team**, (folio 689 and 1154). In an appearance before the Commission, Licenciado Hernández Solano stated:

“For the first time in an actuarial study, representation is given to the workers, this time with the UCR study, for the first time.

There is a technical committee within the Judicial Branch and a technical committee within the UCR, **<u>they are the ones who analyze all the parts of the five phases that the UCR-Judicial Branch agreement has. The Executive Committee within the Judicial Branch is the one that endorses each phase, tests it, makes consultations with the Technical Committee, and ultimately we grant approval</u>**”. (emphasis not in original) “On behalf of the institution, there is an executive team… The Head of the Financial Accounting Department from the unions is part of this technical team. Why does the institution make that decision? Well, because experience had shown us that in previous processes, the unions’ challenges to the study would come at the end of the study and then we would enter into an internal conflict, which was not healthy. In this way, we considered it important to incorporate the union representative as part of this executive team, and he actively participates and reviews the products, as part of the rest of the team that is formed.” (folio 1325 volume 6 of the legislative record) There, the conditions of each product were agreed upon, and the agreement was communicated to the Special Legislative Commission responsible for hearing and issuing a report on the bill “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222” (folio 775 volume 4 legislative record) “<b><u>In the process, observations were made, I even want to tell you that the Judicial Audit also participated in this review process, and there were observations from Mr. Arnoldo, at the time the union representative, and from the Audit; they were transferred to the IICE, they gave us a response, in some cases they corrected the products because this process occurs in a preliminary version for discussion or evaluation, and then, satisfied with that correction, approval and sign-off were given</u></b>” (folio 2335 volume 10 legislative record) (emphasis not in original) At folio 843 of the legislative record, the previous actuarial study by Melinsky, Pellegrinelli y Asociados S.A is submitted, which at folio 939 includes among its recommendations that by the year 2026 a critical year is foreseen with a significant actuarial deficit of 50% of the constitutive capitals of the benefits in progress. It states that “substantive and effective measures aimed at reducing the actuarial deficit and substantially postponing the critical year are required.” It adds that in order to take adjustment measures, it must be borne in mind that it is a retirement and pension regime in progress where the following concepts must be reconciled:

* Benefits in progress * Time of service rendered by active workers * Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, average premium required for equilibrium) * Legal * Contributory capacity of the members * Budgetary capacities of the Judicial Branch * Budgetary capacities of the Executive Branch It adds: “all legal analysis must take into account that the adjustments indicated are necessary for the purposes of improving the situation of actuarial deficit and critical year that implies an Institutional Risk **<u>that endangers the patrimony of all the collective and passive members that make up the retirement and pension regime of the Employees and Officials of the Judicial Branch</u>**.” (highlighting is not from the original) "That is to say, the basic legal element to bear in mind is that individual rights recognized by current law must be considered expectancy rights subordinated to the collective right regarding the feasibility of benefits to the mass of affiliates, not only as to its incidence within the Judicial Branch but also due to its potential effect on the National Budget." In the appearance of the Executive Director of the Judicial Branch (volume 1322 ff. volume 6 of the legislative record), she indicates that since Melinsky's last actuarial study, the actuarial deficit situation went from 2.48 trillion "to a scenario around 5 trillion." When asked by Deputy Piszk Feinzilber: "Would I understand correctly, if I interpret that the situation is worse than we had imagined?", the Executive Director's response is: "Yes. Four years have elapsed between 2012 and now. No decisions have been made and the situation has worsened." (folios 1338 and 1339 volume 6 of the legislative record) Deputy Piszk Feinzilber adds:

"What I want is for it to be very clear here, is that our concern is not based on a whim" ... but on the fact that it is very clear that as long as decisions are not made, the situation will continue to worsen." "I know, and we had even committed to waiting for a complete actuarial study before making decisions of an orderly nature, I don't know if the correct word is numerical or not, but regarding contributions, but well, I believe it is very clear that there is a concern on our part, that the Court must be aware of this, that here, well, it is all Costa Ricans who will have to pay, if this matter continues to drag on, and from that point of view, we, as legislators, who must make a decision, obviously..." (folio 1343 same volume) In the same vein, Deputy Guerrero stated: "To reiterate what Álvaro Ramos said. This is not an issue against, it is in favor of the working class. That substitute text improves, but does not sustain the health of the regime. A regime that will end up in the national budget of the Republic, if health is desired, a regime that furthermore does not guarantee the pension expectancy of people who are currently contributing or will have to start contributing double; likewise the employer and likewise the State. That is, it goes to the central budget..." (folio 1754 volume 8 legislative record) On the other hand, as indicated above, the majority of the Chamber considers that, given the proven public necessity and legitimacy of intervention by the authorities, the means provided in the challenged regulations to achieve the pursued goal are adequate to effectively achieve that goal. As indicated above, the Institute of Economic Sciences Research (Instituto de Investigaciones en Ciencias Económicas, IICE) in the cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. As explained, the legislator adopted an intermediate choice between the two recommended frameworks, a choice for which it has not been proven to have entailed a substantial and relevant worsening of the conditions for the fund's participants, compared to those offered in the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this case file other technical studies or expert reports of the same level or equivalent that, with precise and reliable data, allow the assertion that—having assessed all the conditions and not only the selected ones—a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, while at the same time offering clearly and compellingly higher levels of protection for the fundamental rights at stake. Precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the regulatory structure that, in their judgment, turns out to be the one best adapted to the pursued state purpose. That is their duty as representatives of the people, and this Chamber should not substitute such competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch Retirement and Pension Fund. As the Inter-American Court has correctly pointed out, in economic, budgetary, or resource appropriation matters, the legislator has broad discretion, which is why in these cases, any proportionality judgments made must be of light intensity, which is precisely the category of rights under analysis, where a balance must be sought between individual and collective rights to overcome the danger that existed of affecting the assets of all the collective affiliates that make up the retirement system of the Judicial Branch Employees and Officials, putting at risk the sustainability of current and future beneficiaries and potentially of the State's finances, which would have to take on the present and future pensioners and retirees if the regime could not be balanced.

The plaintiffs provide a series of examples of hypothetical impacts regarding how disproportionate the measures are for various sectors, but they do not provide an actuarial study that would allow refuting the one existing in the legislative record, which indeed takes all the variables at play (not only the selected ones), which must be assessed comprehensively. Likewise, with the actions filed, they seek to return to the scenario prior to the reform, technically discarded expressly by the IICE in its various studies and which does have the capacity to affect or endanger the sustainability of the Judicial Branch pension regime as was proven with the Melinsky study and that of the University of Costa Rica. Likewise, the evidence for a better decision requested by this Chamber from the Administrative Board of the Judicial Branch Pension Fund (see judicial case file), demonstrates that the measures adopted by the legislator have been suitable to restore solvency to the Fund, which has had a substantial recovery during the years the challenged regulations have been in force.

In conclusion, in the judgment of the majority of this Chamber, the Legislative Assembly did not infringe the constitutional principles of reasonableness and proportionality by taking elements from the IICE3 and IICE4 regulatory frameworks and from the appearances of the authorities of SUPEN and the Ministry of Finance, and constructing with them a regulatory framework to adjust all the needs at stake and fulfill the purpose of remedying the recognized problems suffered by the Judicial Branch Retirement and Pension Fund and thus avoid more serious harm to the interests of the members and the public interest, such that on that point the action must be dismissed. Even at the time of issuing this judgment, it has been verified that the regime's actuarial deficit has been significantly reduced, which demonstrates that the measures adopted were necessary, proportional, and suitable." Subsequently, in that same ruling, the following was stated:

"XXXII.- Drafted by Magistrate Araya García. Regarding the impact on the fundamental right to retirement derived from the changes in eligibility conditions in Chapter I "Benefits" of Law 9544 so that Judicial Branch workers may retire. On this point, the plaintiffs argue that the fundamental right to retirement is being rendered nugatory by having increased the retirement age, especially by now requiring a minimum of 20 years of service in the Judicial Branch to be able to retire under the Judicial Branch regime, as in many cases judicial servants would be forced to work beyond the age of 65 to be able to become entitled to a retirement. Additionally, they explain that, with the reform, it is not just that the time of service in the Judicial Branch has been extended by 5 years—from 30 to 35 years—but that particular situations are being generated that they consider harmful to fundamental rights: a) for example, a person who began working for the Judicial Branch at age 20, in order to retire in accordance with the requirements established in Law 9544, must now work 45 years, far exceeding the 30 years of contributions indicated by ILO Conventions 102 and 128; b) by now requiring at least 20 years of service in the Judicial Branch but also fulfilling a total of 35 years of work in the public sector, any person who begins working for the Judicial Branch after the age of 46 would not be able to receive a pension until after surpassing the age of 65; c) in the event of a Judicial Branch worker dying before completing those 20 years of minimum service in that institution, the beneficiaries would not be able to opt for a orphan's or survivor's pension because that requirement is not met; d) new rules for obtaining retirement cannot be imposed equally on a person who is 5 or 10 years from retiring as on a person who is beginning work or who is 30 years from retiring at the time a reform comes into force; e) the Law prior to 9544 established that upon completing 30 years of service—which implies an amount exceeding the 300 quotas required by the IVM regime of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social)—the person could request early retirement regardless of age, for which they had been working and planning their life in the near future, but now, having changed the retirement system so drastically, that same person must complete 5 more years of service but also reach the age of 65 to obtain a full retirement—now greatly reduced—since early retirement would not appear to be an option because it considerably reduces income; e) in the case of a Judicial Police Officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker—just to give some examples—who previously could receive a pension upon reaching 55 years of age after 30 years of service, they must now be forced to work ten more years to reach 65 years of age, despite the fact that in their daily work they carry a huge emotional burden, which could affect—in a highly negative way—the new scenario they are being abruptly subjected to by having to work 10 more years. The plaintiffs argue that all these changes, and others derived from the application of Law 9544, were made without having technical-scientific studies, not of an accounting nature like the IICE products, but of a demographic and sociological nature that would allow determining, with certainty, the possibility that Judges in all matters handled by the Judicial Branch, as well as Judicial Police, administrative personnel, Prosecutors, Public Defenders, among others, could continue working—by having to extend the years of service to retire due to the reform—without affecting public service, but above all without causing damage to their physical and mental health. Here they highlight that many of these judicial servants, being very close to obtaining their retirement, already had a retirement plan for which they had been preparing for several years and now, with the reform, they must modify it, with those plaintiffs considering that this harms the expectancy of concluding a judicial career. They add that, in addition to the foregoing, for the cases of people who will have to work beyond the age of 65 in order to obtain the right to retirement, what is stated in Conventions of the International Labor Organization is being breached, which indicate that the retirement age may not exceed 65 years, as provided in Convention No. 102 of the ILO in its article 26, subsection 2, as well as Convention 128 also of the ILO in its article 15, which, as relevant, states:

"The prescribed age should not exceed sixty-five years, but a higher age may be prescribed by the competent authority, taking into account appropriate demographic, economic and social criteria, justified by statistical data." 3. If the prescribed age is equal to or greater than sixty-five years, that age shall be reduced, under prescribed conditions, for persons who have been working in occupations deemed by national legislation to be arduous or unhealthy for the purposes of old-age benefit."

XXXIII.Drafted by Magistrate Araya García. On this topic, there is no specific criterion issued by the Attorney General's Office, which in its report reiterates the power of the legislator to make the necessary adjustments so that retirement funds are sustainable and can thus provide the promised benefits to all their participants. The same occurs with the Legislative Assembly, which considers that the decision taken was based on the technical studies provided. The Supreme Court explained that on this topic it refers to what was stated to the Legislative Assembly within the legislative record, in the sense that all these changes represent a disincentive for the entry of valuable professional persons into the Judicial Branch who, given the economic result of a future assessment, would prefer to pursue their professional careers in another labor sphere, as the judicial, prosecutorial, Public Defense, and general staff careers are affected. Coupled with this, it ruled indicating that the renewal of personnel who manage to remain in the Judicial Branch will be affected, such that there will be older officials who will continue working solely out of necessity and the decrease their income would suffer if they retired; the judicial population will be at a crossroads because they have the desire to opt for retirement and the motivation to retire to rest, but are placed in a condition where they must assess their economic situation. It further argued that all this reduces the Judicial Branch's competitiveness in the labor market and this will affect the quality of the Administration of Justice. It also considered that the regulation of the Judicial Branch Retirement and Pension Fund should not be assessed solely from an economic perspective, as this concerns inalienable fundamental rights associated with a working person who, during their years of service, has contributed to a regime with an expectancy of having a dignified retirement that would allow them to satisfy their needs and enjoy quality of life in their retirement years, but now, the imposition derived from the new law will affect vulnerable population groups despite this being a collective that requires greater protection from the State.

XXXIV.Drafted by Magistrate Araya García. It is asserted that the reform has imposed on the present and future participants of the fund a set of eligibility conditions that seriously obstruct their possibilities of enjoying an adequate retirement when they cease their work as judges, police officers, prosecutors, defenders, and judicial workers in general. In this regard, the Court notes that the allegations of injury to the right to an appropriate and just retirement are constructed by making a comparison between the previous system (which the plaintiffs seem to endorse) and the system introduced with Law 9544. Therefore, it is worth recalling what changes—in terms of eligibility—the regime underwent with the regulatory change, starting with ordinary retirement, whose 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 being "the last 5 years" (repealed article 231) to a minimum of 20 years worked within the Judicial Branch. Regarding early retirement, the changes are summarized as follows: early retirement with proportional payment upon completion of years of service was changed, going from 30 years of service to 35, provided that a minimum retirement age is met, set at 62 years for men and 60 years for women; likewise, early retirement with proportional payment upon reaching the age was changed, going from 60 years and at least 10 years of service (repealed article 225) to 65, with a requirement of at least 20 years of service in the Judicial Branch according to the currently effective text. In addition, the amount of the retirement payment was adjusted downward, going from 100 percent of the average of the last 24 salaries to 82 percent of the average of the last 240 salaries.

Regarding such variations, the plaintiffs elaborate a series of examples of situations they consider unfair and contrary to international standards, but the truth is that the examples presented are not sufficient to make a decision to annul the regulation as requested, because it so happens that no real and current data is provided by age profiles at entry to the Judicial Branch to verify, for example, the behavior of the fund's participants regarding the use of the early retirement figure, or whether the case of a person entering Judicial Branch service at age 46 repeats with sufficient frequency to conclude that the system, as a whole, becomes openly unfair by requiring more years of service specifically in the Judicial Branch; similarly, nor regarding the years of service are technical data provided capable of disproving the actuarial report that would imply that a large number of people would have to stay well beyond the age of 65 to meet the 20 years of effective service within the Judicial Branch.

It is also invalid to compare the supposed expectations of obtaining an early pension under the previous law with the conditions to acquire an ordinary pension under the new regime, because that is incongruous as they are qualitatively different cases. It cannot be overlooked 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 work capacity is affected by the effects of old age or another contingency; and that is the reason why state authorities must set parameters that ensure sufficient utilization of labor and productive potential and the securing of dignified conditions for when that potential declines due to age. Thus, for the Court, the crux of this matter is that the amendments to eligibility for the various modalities respond to a need for a compromise between the particular conditions of the tasks carried out by the Judicial Branch (Poder Judicial) and the need for the pension system for the protection of its servants when they reach old age to be financially sustainable as a whole, over time.

As stated, the Chamber shares the thesis that the creation of a separate retirement regime for the Judicial Branch has been a key piece of the relevant role that this body has played within the social and democratic rule of law (Estado social y democrático de Derecho) in our country; however, this cannot serve to petrify a situation that, as has been demonstrated, financially threatened the stability of the Judicial Branch's fund, the rights of its beneficiaries, and the Costa Rican State itself, which has provided a good part of the funds to build said regime. In this way, in the face of the economic emergency that required a modification, the changes made represented—for the generality of participants who have built judicial careers and aspire to an ordinary retirement—a delay of 3 years compared to the requirements of the previous law, and a delay of 5 years in the great majority of the other cases, for those who aspire to an early retirement. As is clear, the design could not take into account all of the possible particularities that may occur in concrete cases, but as noted, in the generality of cases, the modifications of 3 and 5 years respectively are supported by technical studies and, for the generality of people, do not constitute an acute aggravation of their eligibility situation. It is clear that the general hypothesis proposed by the plaintiffs—that judicial workers in general, and solely by reason of working at that institution, are subject to a burden and wear and tear clearly distinguishable from other groups of workers—is not supported by evidence provided in the file, nor is there any demonstration that the examples offered reach such a degree of repetition that they affect the overall justice of the system with a magnitude such that it can be said that fundamental rights of the generality of its participants have been violated. This does not mean that there are no groups within the generality of workers that do require special measures due to the type of work they perform, but this requires 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, besides being a comprehensive study, is a study that assesses the effects over 100 years of the analyzed variables. Specific examples, without projection or comprehensiveness, the Chamber considers, do not carry the weight to invalidate technical evidence of this magnitude. To be able to refute this evidence, an equivalent actuarial report is required.

Let us add to this that the original design that was amended by Law 9544 dates from 1993, that is, from a date prior to the substantive paradigm shift that occurred with the enactment of the Worker Protection Law (Ley de Protección al Trabajador) number 7983 of February 16, 2000. With this latter law, the general pension design of the Costa Rican State for the protection of workers in their old age was rethought, and a three-pillar system was established, the first being the basic pension regime (in this case, the Judicial Branch Retirement and Pensions regime), financed on a tripartite basis among the worker, the employer, and the State; a second pillar constituted by a complementary pension regime with an individual account financed by the worker and the employer; and finally, a third pillar formed by the worker's long-term savings plans. Thus, this complementarity freed the basic regimes from the task of delivering, by themselves, broad and complete benefits, since the needs of retirees will be addressed with resources from the three aforementioned sources. For this reason, and in view of the need to review the characteristics of the basic regime applicable to the Judicial Branch to achieve its sustainability, the attempt to adapt it to the new system makes sense, so that the final sum of all pillars can achieve sufficient economic benefits for a basic dignified retirement and that—depending on the effort made by the interested party—it can be increased to assimilate it more or less to the standard of living enjoyed during their active work life. In this way, a possible finding, in some specific case or small group of cases, of some gap or apparently unjust solution due to being incomplete, within this basic regime and its normal operation, cannot—by itself—become a reason to dismantle the entire structure without duly verifying at the same time—which the plaintiffs have not done—the impossibility of the general social security system, as a whole, to provide a solution that appropriately addresses the rights of the affected parties. In conclusion, what is appropriate is to dismiss the claim raised, insofar as the changes in the eligibility conditions have not been technically demonstrated to have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pensions fund to obtain a retirement that contributes, along with the other components of the pension system, to the achievement of their right to a dignified old age. In fact, had the reform not been carried out, the rights of all the beneficiaries of the Regime would be affected in a more burdensome manner for them and public finances. Likewise, returning to the conditions of the previous law—which would be the consequence of annulling the challenged regulations—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 Costa Rican Social Security Fund (Caja Costarricense de Seguro Social)—which has been publicly announced to also have financial sustainability problems—constitutes a better technical alternative than the one adopted by the legislator, since, in this aspect, the technical studies to support that thesis have also not been provided.

From the reading of the partially transcribed precedent, it can be verified that this Chamber concluded, by majority—in accordance with the reasons extensively developed in said vote—that the reform to the Judicial Branch's retirement regime, specifically regarding the changes introduced to the eligibility conditions for ordinary and early retirements of judicial servants—including the requirement of a minimum of twenty years of service in the Judicial Branch to be eligible for an early retirement—far from being arbitrary, capricious, unfounded, or discriminatory, was due to the real need to guarantee the solvency of the Judicial Branch Retirement and Pensions Fund, and that such changes were made "within the legitimate constitutional framework of action for the legislator in retirement matters," based on an "adequate technical support." It concluded—as reasoned in that vote—that such modifications in the requirements for granting ordinary and early retirements for judicial servants were constitutionally valid, as reasonable and proportionate measures to guarantee the solvency and stability of the fund, in consideration of the technical criteria provided to the respective legislative file. In short:

"(...) the changes made were necessary precisely to achieve the sustainability of the special retirement and pension regime for judicial servants, whose debacle would have truly meant a serious threat to the economic stability of the administrators of justice. Equally important for dismissing the claim is the fact that the legislatively established modifications are not the result of unfounded whims of the legislators, but were adopted based on technical criteria, with broad participation of the interested persons, and were neither untimely, capricious, and are based on technical criteria. In this aspect, the Chamber considers that the new pension regime, as the first pillar of the broader social security framework that covers administrators of justice similarly to other workers, ensures them a space of economic security."

Considerations applicable to the sub lite, insofar as no other criteria or technical studies are provided that would allow reaching a different conclusion.

IV.- Continuing with the above, it must be reiterated that the plaintiff does not provide other criteria or technical studies that would allow reaching a different conclusion than the one already developed in the referenced vote no. 2021-011957. In fact, the plaintiff's arguments and reproaches are essentially focused on the application of the challenged regulations to the particular case of the official Barrantes Venegas; however, in full consonance with what was already resolved in the above-cited vote no. 2021-011957, the mere reference to the application of the challenged regulations to a specific case cannot substitute for the existence of technical evidence that adequately demonstrates that "the changes in the eligibility conditions... have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pensions fund to obtain a retirement that contributes, along with the other components of the pension system, to the achievement of their right to a dignified old age." Likewise, it is not appropriate that, through an unconstitutionality action (acción de inconstitucionalidad), the specific or particular case of said person be resolved. It must be remembered that this Chamber has indicated that:

"(...) the object of an unconstitutionality proceeding is not to address an individual injury that the plaintiff may allege; on the contrary, its object is a general interest that acts subject to public law and the rules that make up the legal system conform to Constitutional Law." (vote no. 2013-002902 of 14:30 hours of March 5, 2013).

V.- In the standing (legitimación) section of the filing brief, the plaintiff expressly referred to the orphan's pension (pensión por orfandad)—which is a type of survivor's pension (pensión por sobrevivencia), provided for in Article 228 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial)—which appears to be a mere material error, since all the plaintiff's substantive allegations, as well as the petition formulated in the filing brief, are specifically centered on the early retirement (jubilación anticipada) of judicial servants, regulated in the aforementioned numeral 224 bis of that same regulatory body. However, it should be noted that this Chamber also expressly ruled regarding survivor's pensions, in the above-cited vote no. 2021-011957, in the following sense:

"LXXIII. Drafted by Judge Hernández López. On the right to a survivor's pension. - In accordance with the International Labour Organization (ILO), Social Protection is a human right, essential for achieving sustainable development, composed of sets of basic social security guarantees, defined at the national level, that ensure protection aimed at preventing or alleviating poverty, vulnerability, and social exclusion. In turn, social security (seguridad social) consists of the pension and economic systems that cover the risks to which certain people, mainly workers, are subjected, in order to repair or, at least, mitigate the damages, losses, and misfortunes of which they may be involuntary victims or victims without bad faith (see ruling number 2007-017971 of 14 hours and 51 minutes of December 12, 2007). Of interest for this section, it is pertinent to say 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 deprivations that would otherwise derive from the disappearance or a severe reduction of their income as a consequence of illness, maternity, work accident or occupational disease, unemployment, disability, old age, and death; also protection in the form of medical assistance and aid to families with children' (see Introduction to Social Security. I.L.O. Geneva, 1987, p. 3). Social security is an essential instrument for creating social cohesion, it contributes to guaranteeing social peace and social integration, it is an indispensable part of governments' social policy, and it is an important tool for preventing and alleviating poverty; administered correctly, it increases productivity by providing medical assistance, income security, and social services, and although it represents a cost for businesses, it is also an investment in people and, at the same time, a support for them (see Social Security: A new consensus. ILO. Geneva, 2002, p. 1 and 2). Within the group of benefits covered by social security in Costa Rica are 'survivor's pensions,' which are those that—upon fulfillment of the legally established requirements—can be granted to the family members who survive the active worker who dies, regardless of whether the cause of death is illness, work accident, or others. In this way, 'survivors' in the social security context refer to the partner of the worker and their orphans, with their protection acquiring special relevance because, precisely, when an important part of a family's support is lost due to death, it becomes essential to guarantee their dependents the ability to continue having, at least, the minimum conditions necessary to survive while they manage to adapt to the new situation, and it is there that social protection policies make sense insofar as they contribute to preventing and reducing poverty, inequality, to promoting social inclusion and respect for human dignity; they contribute to providing people with a dignified and full life in the terms set forth in Article 2 of the Comprehensive Law for the Older Adult (Ley Integral para la Persona Adulta Mayor), No. 7935 of October 25, 1999. According to doctrine, the branch of survivors' benefits of social security was originally conceived within a traditional family life form, composed of husband, wife, and children, in which the married woman remained in her home attending to domestic chores and raising children, while the one in charge of providing support for the family was the husband and father. Within that context, if the man died, his widow and orphans would be deprived of their sustenance, exposed to multiple vicissitudes such as poverty, lack of minimum living conditions, impossibility of access to health and education, among others, and for this reason, survivor's pensions were devised as part of social security. Subsequently, with the incorporation of women into the workforce and the modification of the traditional family scheme, those survivor benefits have become 'family or dependent's benefits,' which, although they continue to be mainly aimed at the partner of the deceased worker and the orphans, are not necessarily aimed at providing them with basic sustenance but rather come to collaborate with the economic contribution that the deceased insured generated in their family nucleus, so that the family can continue to maintain a certain standard of living according to what they usually enjoyed; a contribution that is of great relevance especially when taking into account that there might be young children or persons with disabilities, whose economic needs are often of great magnitude. In Costa Rica, the legislation regulating this matter has been based on the principles established in Conventions 102 and 128 as well as Recommendation 131, both of the International Labour Organization, without the Judicial Branch having been an exception since its Organic Law has included this type of protection. In that sense, and prior to the approval of the reform through Law 9544 challenged herein, in the event of the death of an active servant of the Judicial Branch, former Article 230 of the Organic Law of the Judicial Branch No. 7333 provided:

'Article 230. Officials and employees who have served less than ten years shall not have the right to a retirement nor their relatives to a pension, except in the case provided for in Article 228. However, if the death of the servant occurs as a result of the exercise of their duties—whatever the time served by them—in addition to the legally corresponding indemnities, their beneficiaries shall have the right to a temporary and proportional pension, within the conditions that this Law provides for such cases.' As is clearly evident from reading the rule, Law 7333 regulated the possibility that, in the event that an active worker of the Judicial Branch died, but had 10 or more years of service for the institution, their relatives would have the right to a pension regardless of the causes of the death, establishing in addition the possibility that, if the death occurred as a consequence of the exercise of duties and the worker had fewer than 10 years of service, the beneficiary relatives would have the right to a temporary and proportional pension, as provided by the Law for such cases. It is evident that the rule established broad social protection for the deceased's dependents in accordance with the most basic principles laid down on the matter by the International Labour Organization, in terms of constituting a measure for them against the uncertainty and risks of life that can result in impacts on present and future well-being, since there is no doubt that a person's socioeconomic conditions fuel inequality, vulnerability, and poverty. Observe that, according to the former Article 224—of Law 7333—, to obtain retirement under regular conditions, a judicial worker had to have 30 years of service, and for this reason, the rule transcribed supra provided that officials and employees who had served fewer than ten years would not have the right to a retirement; however, the legislator, with adequate social foresight and anticipating the exceptional situations of life that may occur, understood the need to protect the relatives and provided that, after 10 years of service, in the event of the death of the active worker, their dependents would indeed have the right to a proportional survivor's pension. It is indisputable that this provision is of great relevance in a Democratic and Social Rule of Law State, besides the fact that death is an undeniable and integral part of the life cycle, so it can occur at any time; however, it takes on special relevance in the case of the Judicial Branch since many of its employees, by reason of their duties, are subject to serious risks that can bring it about, and, for this reason, that legislator also provided in that rule that if the servant's death occurred as a result of the exercise of their duties, in that case, the service time the worker had would not matter, because even if it were fewer than 10 years, their beneficiaries had the right to a temporary and proportional pension, within the conditions that the Law provided for such cases. It is more than evident that the legislator not only had a broad social and rights-guaranteeing perspective of fundamental rights but also understood the transcendence of social protection as a mechanism to shield people against eventual risks in the life cycle, as a determining aspect in society to boost productivity, decent work, the structural transformation of national economies in order to reduce poverty, social exclusion, inequality, strengthen social cohesion, and political stability. Notwithstanding the above, with the reform introduced to the Organic Law of the Judicial Branch through Law 9544 challenged herein, the situation varies radically, as argued in unconstitutionality action No.

18-009275-0007-CO, in which the claimants argue that "this right is rendered nugatory for future beneficiaries such as those who acquire the right to a survivor's pension (survivorship pension, or pensión por sobrevivencia) (spouses, companions, dependent parents) or an orphan's pension (pensión por orfandad), disabled or incapacitated persons who depend on the deceased person, since these, if the public servant does not complete 20 years of service at the time of death, regardless of whether they had served 30, 35 or 40 years in another public sector institution, would be left unprotected, uncovered in said contingency," considering that "the foregoing is inconceivable within the Social State of Law (Estado Social de Derecho)" and they cite as an example the case of "a person who starts working for the Judicial Branch (Poder Judicial) at age 50, they would have to wait until age 70 to be able to retire and, even worse, if they died before reaching those years, their survivors would not receive any pension," also indicating that the most serious aspect of this radical change in conditions for survivors is that it has been done without technical criteria to justify it and without offering greater analysis by the Legislative Branch. To understand the scope of the claimants' argument, one must observe what is set forth in numerals 228 and 229 of Law 9544 -challenged here- which are those that regulate matters relating to the survivor's pension:

"Article 228- The following have the right to a survivor's pension:

• a)The surviving spouse of the deceased public servant or retiree who depends economically on the deceased, at the time of death.
• b)The companion who is economically dependent at the time of the retiree's death, who has cohabited for at least three years prior to the death and both had the legal capacity to marry, in accordance with civil legislation.
• c)The divorced spouse or judicially or de facto separated spouse, or former companion, who is receiving alimony (pensión alimentaria) at the date of death, declared by a final judicial judgment, or who demonstrates that they were receiving financial assistance from the deceased.

The following have the right to an orphan's pension:

• 1)The children who, at the time of the deceased's death, depended economically on them, in accordance with the following rules:

1.1) Unmarried minors.

1.2) Persons over eighteen years of age, but under twenty-five, who are pursuing studies recognized by the Ministry of Public Education (MEP), the National Learning Institute (INA), or other institutions at the discretion of the Administrative Board (Junta Administradora).

1.3) Adults who, prior to the death of the deceased, are disabled and incapable of performing remunerated work.

In the absence of entitled beneficiaries through widowhood, common-law marriage, or orphanhood, the parents have the right to a pension if, at the time of the deceased's death, they depended economically on them.

"Article 229- The amount of the survivor's pension benefits in cases of widowhood, common-law marriage, orphanhood, or ascendancy shall be proportional to the amount of the pension the pensioner was receiving at the time of death, and as a whole this amount shall not be greater than eighty percent (80%) of what corresponded to the deceased. In the case of the death of an active public servant, the amount of the pension for widowhood, common-law marriage, orphanhood, or ascendancy shall be proportional to the amount of the pension the deceased would have received according to the fulfillment of requirements at the time of the contingency, and as a whole this amount shall not be greater than eighty percent (80%) of what would have corresponded to the deceased.

The proportions for the benefits for widowhood, common-law marriage, orphanhood, and ascendancy shall be those stipulated in the regulations of the Regime.

Every survivor's pension shall expire upon the death of the beneficiary, with the exception of the provisions in this article for the pension corresponding to the children.

The allocations that expire shall proportionally accrue to those of the other beneficiaries that remain in force, at their request and provided they require them, following a social work study and approval by the Administrative Board of the Fund (Junta Administrativa del Fondo).

(Thus amended by Article 1 of Law No. 9544 of April 24, 2018) From reading both numerals, it is observed that the claimants' assertion makes sense when thinking about the case of an active public servant, male or female, of the Judicial Branch who dies and who was a support for the persons who survive them, for it should be noted that, under the rule established in the aforementioned numeral 229 -currently in force-, in the event of the death of an active public servant, the amount of the pension for those who are beneficiaries, "shall be proportional to the amount of the pension the deceased would have received according to the fulfillment of requirements at the time of the contingency, and as a whole this amount shall not be greater than eighty percent (80%) of what would have corresponded to the deceased." The foregoing means that, as the claimants mention, only those relatives of a public servant who had 20 years or more of service in the Judicial Branch can be beneficiaries of a survivor's pension, because the norm requires that the deceased had been in a position to meet the requirements established in the preceding Article 224, or what is the same, that they had 20 or more years of service in the Judicial Branch; a norm that, furthermore, does not contemplate any possibility of benefit for their relatives in the event that the death of the active working person was a consequence of the exercise of their functions in the institution. Added to the foregoing, as the claimants rightly affirm, the norm was modified to transition to this new wording without any technical basis to justify it, and in that sense, it is sufficient to review the legislative file to which this Court has had access to verify that there is no technical foundation accredited in the file or in the appearances of the technicians, in relation to the survivor's pension, that justifies the difference being created between the former Law 7333 and the reform. The Chamber has been able to verify that none of the 6 IICE Products that served as support for the legislator to enact Law 9544 contemplate any technical justification for retracting social protection in this matter; a step backward that is evidently contrary to the guaranteeing principles of fundamental rights that must be protected by this Constitutional Court, because even though progressiveness (progresividad) should prevail in this matter, in the specific case there was an unfounded regression by changing the conditions for survivors of working persons with 10 years or more of service in the Judicial Branch, to 20 years or more of working in the institution. Added to the foregoing, for the Chamber, such a burdensome distinction between the former system and the current one makes the amended norm unreasonable, therefore, lacking in a content of justice, and in that sense, it should be remembered that this Chamber has pointed out in the past that if "the distinction established by a norm produces a situation of injustice, such a norm is not reasonable and, therefore, the content of the principle of equality set forth in constitutional article 33 is violated" (judgment number 2001-03192 of 10 hours 10 minutes of April 25, 2001). It is considered that the foregoing is so because, as can be observed, in the face of two equal situations -death of an active male or female worker of the Judicial Branch-, Law 9544 challenged here, gives a completely different treatment than what Law 7333 contained, even though almost 30 years have passed between the enactment of one law and the other, and it is logical to think that societies advance in a positive and progressive manner, not the other way around. The real situation in which persons who could derive benefits under these circumstances have been placed is injurious to fundamental rights, openly contrary to what is provided by constitutional Article 51 according to which, the family, as a natural element and foundation of society, has the right to the protection of the State, highlighting with special relevance the case of the mother, the child, older adults, and persons with disabilities. The foregoing means that, even though the State has the obligation to adopt the necessary measures to guarantee that protection, and among them is, undoubtedly, the recognition of social benefits derived from active workers in the Judicial Branch who had children or dependent persons who are members of that essential nucleus, the truth of the matter is that, based on Article 229 of Law 9544, they are left clearly unprotected if that active public servant did not have 20 years or more of working for the Judicial Branch, in clear detriment compared to the previous system that protected workers with 10 years of service, or even less, if the death resulted from the exercise of their functions in the Judicial Branch, this despite the fact that the death of an active working person generally refers to extremely exceptional situations, which when they occur involve very few people, and precisely for that reason, the recognition of the pension to their survivors would not imply a large-scale impact on the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). Thus, what is appropriate is to maintain the validity of the 10 years established by Article 230 of Law 7333, so that the repeal of that norm, Consequently, it must be understood that the survivor's pension corresponds to the relatives of the active working person of the Judicial Branch who, at the time of the contingency, had 10 years or more of working in the Judicial Branch and, in the case that the death occurred due to the exercise of their functions, whatever the time of service had been, the beneficiaries shall have the right to a temporary and proportional pension according to what the law provides, in addition to the indemnities established by the regulations governing the matter, because, as already indicated, the amount of the pension aims to replace the support that the deceased person provided to the persons who depended on them, so that they are not left in a situation of poverty or abandonment." Therefore, finally, in the operative part, it was resolved that:

"Fourth: By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García, and Garro Vargas), the requirement of 20 years of service required for purposes of obtaining the survivor's pension derived from Article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, pursuant to Article 230 of Law 7333 of May 5, 1993, in the version prior to the reform." It is clarified, again, that this was properly resolved with respect to the survivor's pensions provided for in Articles 228 and 229 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), but not with respect to the early retirements regulated in the aforementioned ordinal 224 bis, which properly constitutes the object of this unconstitutionality action and corresponds to a different normative scenario.

VI.- IN CONCLUSION. As a corollary to the foregoing, it is appropriate to reject on the merits the action filed against Article 224 bis of the Organic Law of the Judicial Branch, amended by Law No. 9544 of April 24, 2018, as so ordered.

CO10/22 **FILE: 21-022266-0007-CO** **DISSENTING VOTE OF JUDGES SALAZAR ALVARADO, GARITA NAVARRO AND JARA VELÁSQUEZ, WITH THE FIRST DRAFTING, IN RELATION TO THE VIOLATION OF ARTICLE 167 OF THE CONSTITUTION.** The undersigned judges (a) dissent with respect to this point, clarifying that in the case of the last two (a), while we did not sign the original draft of the dissenting vote, we now adopt the reasoning set forth in Judgment No. 2021-11957 of 5:00 p.m. on May 25, 2021, so that, jointly, we reiterate it as follows:

*"The undersigned judges dissent, and consider that it is necessary to address the problem of the accumulated actions from the perspective that the legislative procedure incurred a gross, manifest, and evident violation of Article 167 of the Political Constitution, and that, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called 'Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas'."* *"It should begin by noting that the Special Commission charged with processing legislative file No. 19.922 brought the respective bills being approved to the attention of the Corte Plena, in order to comply with the provisions of the aforementioned Article 167. The consultations with the Supreme Court of Justice occurred on three occasions; namely:"* *a) The bill was referred for consultation to the Supreme Court of Justice, and the report rendered was made known in the Corte Plena session No. 29-16 of September 26, 2016, article XVIII, and was communicated to the Legislative Assembly by official letter SP-288-16 of September 28, 2016, with the express indication that the bill under consultation affects the organization and functioning of the Judicial Branch.* *b) On a second occasion, the Corte Plena in session No. 9-17 of April 24, 2017, article XXIX, heard the consultation formulated before it, and by official letter SP-118-17 of April 26, 2017, brought to the attention of the Special Legislative Commission that the Corte Plena had issued a negative opinion on the bill under consultation, as it affects the organization and functioning of the Judicial Branch.* *c) On a third occasion, the Corte Plena in session No. 26-17 of August 7, 2017, article XXX, heard the consultation formulated by the Special Commission regarding the Dictamen Afirmativo de Mayoría, and issued a negative opinion indicating that the bill processed under file No. 19.922 affects the organization, structure, and functioning of the Judicial Branch; a decision communicated to the Legislative Assembly by official letter SP-253-17 of August 10, 2017.* *"In each and every one of the consultations formulated, the Corte Plena established that these were bills affecting its organization and functioning, so that, based on that negative opinion, in accordance with Article 167 of the Political Constitution, and the principles of coordination, mutual respect, and equality that inform the relations between constitutional bodies, between two branches of the State [system of checks and balances], the law had to be approved with a qualified majority. Furthermore, it must be mentioned that the last of the bills, which was the Dictamen Afirmativo de Mayoría accepted by the Special Commission on July 27, 2017, was not the final one. On the contrary, the text of the bill was the subject of substantive and reiteration motions accepted by the Special Commission, upon which the Legislative Plenary subsequently voted in the First Debate, in extraordinary session No. 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative file). Thus, the text voted on by the Legislative Plenary in the First Debate was the amended text, maintaining some of the points on which the Corte Plena had issued its negative opinion, among them, the installation of a Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial to the detriment of the competencies of the Consejo Superior del Poder Judicial. But furthermore, it must be indicated that it contained other substantial changes to the bill, including those that worsened certain conditions for judicial officials regarding the enjoyment and exercise of the right to a pension and retirement, a situation on which the Corte Plena had to rule —regarding Article 167 of the Constitution— due to its relevance in the Law of the Constitution. These modifications were voted on in the First Debate and were approved in the Second Debate. All the foregoing, without the institutional consultation having been made regarding the bill approved in the Commission and subsequently voted on by the Plenary in extraordinary session No. 14 of October 30, 2017."* *"Although the Legislative Assembly considered it unnecessary to make the consultation to the Judicial Branch on the final text, approved in the Special Commission on July 27, and the subsequent modifications made by substantive and reiteration motions, and continue with the legislative procedure following the criterion of the Chamber in Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, given that these modifications to the pension regime of the Judicial Branch did not affect the structure and functioning of the Judicial Branch, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed below. Furthermore, there is a pattern of worsening conditions for officials of the Judicial Branch that can be enumerated from some provisions that were modified by the substantive and reiteration motions that were embodied in the text approved in the Commission, which implied a substantial change in the previously consulted bill. As indicated, this last text was approved in the First Debate on October 30, 2017, according to which, through a comparison exercise, some of the following substantial modifications of consideration are observed, such as the following:"* *a) In Article 224, the aggravation of 85% of the average of the last twenty years of ordinary monthly salaries earned in the employment relationship was established, and it was modified to establish it at 82% of the average of the last twenty years of ordinary monthly salaries.* *b) In Article 229, a similar reduction affected the survivorship regime, where upon the death of the active employee, the amount for widowhood, common-law union, or orphanhood would decrease from 85% to 80%.* *c) In Article 227, a similar situation occurs for the permanent incapacity (disability) of the official, from 85% to 83%.* *d) Regarding the income of the Pension and Retirement Fund of the Judicial Branch, it is evident that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial employees, and of the pensions and retirements charged to the fund, was established. Finally, it was approved at a fixed thirteen percent (13%), which implies that the floor or base of the worker contribution could not be reduced to the lower percentage of eleven percent. Although the upper extreme is eliminated, the fixed percentage eliminated the reduction in favor of the judicial employee, who historically has been contributing a significant sum to the fund."* *"Thus, contrary to the criterion of the majority of the Chamber, which relies significantly on the doctrine of Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, a precedent in which the undersigned subscribed a dissenting vote together with Judge Cruz Castro, we consider that Law No. 9544 called 'Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas', contains the substantial defect in the legislative procedure due to the violation of the constitutional norm that imposes the constitutional consultation, based on the arguments set forth below."* ***A.- Text of the law not referred for consultation to the Supreme Court of Justice.*** *"At the base of the discussion, as is rightly stated in the majority vote, lies the determination of whether, under the terms of Article 167 of the Political Constitution, the legislative body was or was not obligated to refer the cited bill for consultation to the Judicial Branch, a duty that has, moreover, been incorporated in Articles 126 and 157 of the Reglamento de la Asamblea Legislativa, which stipulate the procedure to be observed for this purpose. From the constitutional text, it is inferred that the mandatory consultation of the Supreme Court of Justice is only such if the bill relates to the organization or functioning of the Judicial Branch. Thus, the heart of the matter lies in what is to be understood by 'organization or functioning of the Judicial Branch'."* *"In this regard, the majority vote maintains that the Political Charter's reference to the organization and functioning of the Judicial Branch refers —solely— to the affecting of the jurisdictional function, and not the purely administrative one. In support of this position, Judgments No. 1998-5958 of 2:54 p.m. on August 19, 1998, No. 2001-013273 of 11:44 a.m. on December 21, 2001, and No. 2008-5179 of 11:00 a.m. on April 4, 2008, are cited. Likewise, concerning the specific issue of the Fondo de Pensiones y Jubilaciones del Poder Judicial and the obligation of the Legislative Assembly to consult the Supreme Court of Justice regarding bills related thereto, the majority vote cites Judgments No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, on the basis of which it concludes that in those cases, the Legislative Assembly is not obligated to refer the bill for consultation to the Supreme Court of Justice under the terms provided in Article 167 of the Constitution. However, in the opinion of the undersigned, such an interpretation of the constitutional numeral, restricted solely to the jurisdictional function, does not derive from the text of the Political Charter, nor from the jurisprudence of this Chamber. Indeed, regarding the cited precedents, it is noteworthy that with respect to the first three judgments, what is sustained by the majority in its vote is not inferred from them. Thus, in Judgment No. 1998-5958 of 2:54 p.m. on August 19, 1998, what is developed is only the term 'functioning' —of the binomial 'organization or functioning'— of the Judicial Branch, without referring to the issue of the organization of that Branch of the Republic. Specifically, in the citation made of that vote, the Chamber clearly indicates that '...the matters that mandatorily require a consultation of the Supreme Court of Justice are those relating "to the organization or functioning of the Judicial Branch," where the term "functioning" alludes not only to aspects of the internal administrative regime of judicial offices, but also to procedural matters governing the substantiation of the various matters submitted to those courts,' which makes it evident that the issue of organization —which is the one of interest here— was not developed in that resolution, simply because the case did not require it, as it dealt with the mandatory legislative consultation of constitutionality regarding the bill for 'Addition of a new Chapter IV, called "Del recurso de hábeas data", to Title III of the Ley de la Jurisdicción Constitucional, Ley Nº 7185 of October 19, 1989', processed under legislative file number 12.827, where the issue under discussion was that the reform affected the jurisdictional function of the Judicial Branch. That this is so is evident from the very text of the judgment, which is not cited with due breadth in the majority vote: '...the matters that mandatorily require a consultation of the Supreme Court of Justice are those relating "to the organization or functioning of the Judicial Branch," where the term "functioning" alludes not only to aspects of the internal administrative regime of judicial offices, but also to procedural matters governing the substantiation of the various matters submitted to those courts. And, in Costa Rica, the constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Ley de la Jurisdicción Constitucional integrate this Chamber within the structure of the Court.' Having made the citation in its context, it cannot be inferred that the Chamber restricted the binomial 'organization or functioning' merely to the jurisdictional, but rather, in that cited case, this Constitutional Court solely referred to the aspect of the jurisdictional function of the Judicial Branch because it was the issue under discussion, without excluding or referring to the topic of the administrative organization of said Branch of the Republic. The same can be said regarding Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, alluded to by the majority. This was an optional legislative consultation of constitutionality regarding the bill for 'Modificación del Código Penal, Ley número 4573 y sus reformas', legislative file number 14.158. Once again, it was a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case, the Chamber did not develop this latter topic either, as it was unnecessary. That is why the substantive discussion focused and exhausted itself on the aspects of the jurisdictional function of the Judicial Branch: '...said consultation [that of Article 167 of the Political Constitution] is mandatory when what is being discussed in the Assembly is a bill that seeks to establish rules of functioning and organization of the Judicial Branch, understood not merely as provisions regulating the creation of courts of justice or jurisdictional competencies, but even those that provide for the manner of exercising such competencies, i.e., on the way in which the Judicial Branch carries out its jurisdictional function, including proper procedural norms.' Certainly, it is evident that what was expressed was limited to examining matters related to the exercise of the jurisdictional competencies of the Courts of Justice, given that it was on that particular aspect that this consultation focused. But the Chamber did not say that this is the only extreme in which the consultation of Article 167 of the Political Constitution is mandatory; rather, what it said is that, in that case, it is mandatory, without referring to other cases in which it is also so, such as matters concerning the organization and administrative competencies of the Judicial Branch."* *"Separate commentary is warranted for Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, since here, unlike the reading made by the majority, it is indeed established that matters related to the administrative organization of the Judicial Branch fall within the mandatory consultation stipulated by the cited Article 167 of the Constitution. On that occasion, this Constitutional Court, as the supreme interpreter of the Political Constitution, when referring to the terms 'organization or functioning' of the Judicial Branch contained in Article 167 of the Political Charter, as a condition for the mandatory consultation of that Branch of the Republic by the Legislative Assembly, considered '...that a bill deals with such extremes when its articles contain explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or of an administrative nature attached to the Judicial Branch, or else creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions...'. This does not represent a change in the criterion of this Court on the matter, but rather, within the jurisprudential line already traced, a further determination of the terms 'organization or functioning' used by Article 167 of the Political Constitution, to establish the cases in which bills in the legislative pipeline must be referred for consultation —mandatorily— to the Supreme Court of Justice. This judgment did not, in any way, broaden the cases of mandatory consultation; on the contrary, what it did was define them in a broader and more precise manner."* Therefore, it was clearly determined there that, in those cases, but only in those, the consultation is mandatory. Thus, it is understood that, in that same ruling, it was stated: “[i]t should be noted that such an exegesis is imposed for the sake of maintaining the balance of powers, without privileging one or another constitutional body, so that each one can exercise its functions independently and separately as imposed by the constitutional text itself (article 9 of the Constitution). In other words, the precision of such concepts avoids any collision, overreach, or exacerbation of the respective functions, for the sake of maintaining the balance and containment of powers, given that the purpose of the norm is constituted not only by the functional independence and budgetary autonomy of the Judicial Branch, but also by the balance between the Legislative and Judicial Branches. Indeed, a broad interpretation of the terms used by the original constituent power, by the Full Court, could lead to certain matters that, in a strict sense, are not referred to the organization and functioning of the Judicial Branch, unjustifiably meriting a reinforced law, thereby slowing down or unnecessarily hindering the legislative function. On the other hand, the non-application by the Legislative Assembly of the constitutional norm, by erroneously considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it is deduced that everything related to the matter of organization and functioning of the Judicial Branch, but only and strictly this—to maintain the balance between functional independence and budgetary autonomy of the Judicial Branch, on one hand, and the freedom of configuration of the ordinary legislator, on the other—is what obligates the legislative body to carry out the consultation before the Supreme Court of Justice, without being able to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that everything related to the administrative organization of the Judicial Branch, and not only what concerns the direct or indirect affectation of the jurisdictional function, obligates the legislative body to raise the consultation in the terms expressed in article 167 of the Political Constitution. And it could not be otherwise, since the affectation or modification of the administrative organization of the Judicial Branch in general—and not only what pertains to the jurisdictional or judicial bodies in a strict sense—also impacts the Administration of Justice service it provides, and the independence constitutionally guaranteed to that Branch and to the judges as officials called to impart justice.

On the other hand, Rulings No. 1995-3063 at 3:30 p.m. on June 13, 1995, and No. 2002-4258 at 9:40 a.m. on May 10, 2002, which are cited in the majority vote as grounds to conclude that bills related to the specific topic of the Pension and Retirement Fund of the Judicial Branch do not need to be consulted to the Supreme Court of Justice, also do not have the virtue of providing the foundation that, in relation to this matter, the majority of the Chamber asserts they have.

In the first of said rulings, the Chamber heard accumulated actions of unconstitutionality filed against the Ley Marco de Pensiones, Law No. 7302 of July 8, 1992. This Tribunal, on that occasion, only affirmed that, in the case of the Ley Marco de Pensiones, there was no constitutional obligation to consult the Judicial Branch on the respective bill, for the simple reason that said bill does not affect judicial servants; and, therefore, it does not fall within what is prescribed by article 167 of the Political Constitution. Likewise, in the cited vote, it is indicated that functioning is referred to the jurisdictional function, but it makes no allusion whatsoever to the topic of the organization of the Judicial Branch, which is what is at issue here.

Similarly, in Ruling No. 2002-4258 at 9:40 a.m. on May 10, 2002, the Chamber heard accumulated actions of unconstitutionality filed against article 4 of Law No. 7605 of May 2, 1996, insofar as it reforms articles 224, 226, and 236, subsections 1) and 2), of the Ley Orgánica del Poder Judicial, No. 7333 of May 5, 1993, as well as, by connection and consequence, against article 33, subsection a), of the Reglamento de Invalidez, Vejez y Muerte of the Caja Costarricense de Seguro Social. The Chamber dismissed, among other alleged issues, the violation of article 167 of the Political Constitution, due to the fact that the reform to the pension regime of judicial servants that was challenged had no relation to the organization or the functioning of the Judicial Branch, for whose definition it referred to what was said in that regard in Ruling No. 1995-3063 at 3:30 p.m. on June 13, 1995, which, as already stated, only referred to the term of the functioning of the Judicial Branch, without making any reference to the topic of its organization. Therefore, unlike the opinion expressed by the majority, said rulings do not exclude the matter relating to the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation to the Supreme Court of Justice, but only insofar and as long as the respective bill does not have a direct relationship with the “organization or functioning of the Judicial Branch,” topics that, certainly, were not involved in the actions filed before this Chamber and that were resolved in the cited rulings. With this, the matter concerning the Pension and Retirement Fund of the Judicial Branch is not excluded from the mandatory consultation to the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation, but rather it will depend on whether the bill in question contains or does not contain regulations relating to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case in order to establish the mandatory nature or not of said consultation.

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

There is consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional Rule of Law in modern societies. This is because, unlike what is decided in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata. This not only implies great responsibility, but also the need to have a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, presents itself as a conditio sine qua non for the exercise of that delicate function. It is the judge's responsibility to decide on the sole and possible interpretation of the law, the Constitution, and the parameter of conventionality, which would be impossible if they do not have due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the adjudicator per se, and for the personnel who assist and help them in their function. Therefore, in matters of remuneration and retirement, it cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies, regarding the topic at issue, that the retirement or pension of judicial servants not be the same as that of the rest of the public administrative sector. What is decided with the force of res judicata in judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, therefore, on social peace. In all this, judicial independence plays a leading role, because in a Constitutional Rule of Law; that is, in a Democratic State, that principle has an institutional projection in the Judicial Branch per se, before any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even before the leaders of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch—with all its servants included—does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, article 8.1 establishes:

“Article 8. Judicial Guarantees.

1. Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation made against them, or for the determination of their rights and obligations of a civil, labor, fiscal, or any other nature.” Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law. But that independence, to be real, must not only be organizational and functional, but also economic. That economic independence is also guaranteed in article 177 of the Political Constitution, by establishing that the proposed ordinary budget must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The intention of the original constituent power, with the enactment of this norm—which establishes a tied constitutional expenditure—is to guarantee, among other things, that judges and the rest of the auxiliary justice personnel have adequate retribution for the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function entails for judicial servants, which do not weigh upon the public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of adjudicators and auxiliary personnel, as well as the pension and retirement regime applicable to them, must bear a strict relationship with the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, the economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional Rule of Law. This being the case, one way to guarantee the independence of the Judicial Branch, of the Judges of the Republic, and of the auxiliaries of justice is with a dignified retirement or pension, commensurate with their constitutional functions.

In the statement of grounds 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 from its servants, who for exercising very delicate functions for the very life of Society, that greater enlightenment, probity, and work are required, more than from other employees. And that is why, surely, when judicial servants are asked for complete dedication, over long years, to the very important task of administering justice—with the noble aim of ensuring their subsistence upon reaching old age or when, due to physical ailments, they can no longer work—the enactment of a law that addresses this difficult situation of the officials and employees of the Judicial Branch has been continually urged before Congress, in different legislative periods.” It must not be overlooked that adjudicators and the judicial officialdom in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions that affects the rest of public officials, which makes it of a completely different nature. The regulations that apply to the administrative officialdom of the entire public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality oblige that this asymmetrical regime of incompatibilities and prohibitions, which responds to the very nature of the jurisdictional and administrative functions, must have economic compensation, both in salary and at the end of the employment relationship. But also, the principle of equality, enshrined in article 33 of the Political Constitution, implies the prohibition of treating unequal persons as equals, because from this derives a discrimination contrary to the Law of the Constitution. In the case of judges and judicial officials, there exist objective, reasonable, justified conditions grounded in the very nature of the jurisdictional function exercised, to give them treatment different from that of the rest of the public servants of the different administrations, with which, far from incurring discrimination, the principle of equality regulated in the cited constitutional numeral is protected. Which means that, if a differentiated retirement regime exists for the jurisdictional sector, it is not due to an arbitrary, subjective, or capricious decision by the legislator, but rather to the specific and different nature of the jurisdictional function that, objectively and constitutionally, justifies it.

The foregoing not only derives from our own Political Constitution and the values and principles that inform it, but is also contained in various international instruments. Thus, for example, in the “Basic Principles on the Independence of the Judiciary,” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, in Principle 11, the following is stated:

“11. The law shall guarantee the tenure of judges for the established periods, their independence and 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 to extend to auxiliary officers of the justice system, for otherwise such independence would be impossible.

Likewise, in the “European Charter on the Statute for Judges,” adopted in Strasbourg between July 8 and 10, 1998, for the sake of achieving real and effective independence of the Judicial Branch and of the officials who administer justice, as well as their collaborators and auxiliaries, paragraphs 6.1 and 6.4 establish the following:

“6.1 The professional exercise of judicial functions entitles the judge to remuneration, the level of which shall be determined so as to shield him or her from pressures intended to influence his or her decisions and, more generally, 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 performed them professionally for a specified period, receives payment of a retirement pension the amount of which shall approximate as closely as possible to his or her final remuneration for judicial activity.” The aforementioned instrument seeks to achieve a truly and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. As such, the adequate remuneration and pension of judges and auxiliary officers of the justice system, in the terms expressed therein, constitutes the proper and reasonable consequence of the exercise of a delicate function of great difficulty and responsibility.

Also, the “Ibero-American Judge's Statute,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32, echoes the same principles already cited, by stating:

“Art. 32. Remuneration.

Judges must receive sufficient remuneration, of a lifetime tenure (irreductible) nature, commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” And, in Article 33, it provides:

“Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that they will receive, upon concluding their years of service due to retirement, illness, or other legally provided contingencies, or in the case of personal, family, or patrimonial damages derived from the exercise of their office, a dignified pension or adequate compensation.” It must be borne in mind that retirement and pension form part of the Economic, Social, and Welfare Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification, and accession by the United Nations General Assembly in its resolution 2200 A (XXI), of December 16, 1966. These regulations have also been embraced in Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the issue of judges' independence and irremovability. Regarding the issue of judges' salaries, said Council recommended:

“…it is generally important (and especially in the case of new democracies) to establish specific legal provisions guaranteeing judges' salaries protected against reductions and ensuring de facto ‘the increase of salaries in line with the cost of living’.” These recommendations are fully applicable to the issue of pensions and retirements of judges and judicial servants in general, since they are intimately related to the principle of independence of the Judicial Branch, as has already been set forth.

But this matter has not only been regulated in these terms in the international sphere; it has also been the subject of regulation within the Judicial Branch itself, with considerations similar to those stated.

Indeed, the Full Court approved the Statute of Justice and Rights of Users of the Judicial System, in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets. In Article 24, relating to the material conditions of judicial independence, it is established that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget items,” which is intimately related to the provisions of the aforementioned Article 177 of the Political Constitution, regarding the constitutional allocation of a minimum of the Ordinary Budget for the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the aforementioned Statute also enshrines, just like the international instruments examined, the principle of the judge's irreducible salary: “Judges must receive sufficient remuneration, of a lifetime tenure (irreductible) nature, commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation has its basis in the independence of the Judicial Branch, which must also be extended to the issue of the pension or retirement of judges and auxiliary personnel of the justice system, for otherwise, the principle of judicial independence would not be possible.

Respect for judicial independence, which is one of the aims pursued by Constitutional Article 167, was also the subject of express regulation in the Statute, Article 20, by providing that “[t]he other Branches of the State and, in general, all national or international authorities, institutions, and bodies, must respect and make effective the independence of the judiciary.” And precisely, the unconsulted intrusion of the legislative body into the organization and functioning of the Judicial Branch, whether by creating, modifying, or suppressing judicial or administrative organs or competencies, is constitutionally inadmissible, as this constitutes a flagrant violation of the principle of judicial independence.

Finally, it should be noted that the independence of the Judicial Branch is a principle that has a particular and specific nature, different from that of the other Branches of the State, since it consists of a protective shield against the intrusion of political power, from which the other Branches of the State are not protected. This is because the Judicial Branch is the one that administers justice, and this must be impartial and free from any external pressure. And, on this point, economic pressure, whether through salary or stipend, or through the amount and conditions of the retirement or pension of judges and other auxiliaries of the justice system, plays a transcendent role in achieving real and effective independence of the Judicial Branch.

Based on the preceding considerations, it then falls to examine the content of the law in order to determine whether it affects the organization or functioning of the Judicial Branch, in the terms expressed.

In this vein, just as when the legislative consultation related to the bill for the Comprehensive Reform of the Various Pension Regimes and Related Regulations, now approved by Law No. 9544 of April 24, 2018, denominated as the “Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its reforms,” was heard, the reasons of the dissenting vote are maintained. That legislative consultation was discharged by Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018, in which it addressed the various complaints about Article 239 of the now law in question. On that occasion, the legislative process was reviewed insofar as it creates an Administrative Board of the Pension and Retirement Fund of the Judicial Branch, which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the faculties and powers that the law grants it, an organ to which functional independence is granted and a series of competencies are assigned, among others, raising the worker contribution to the Pension Fund and hearing petitions for retirement, which implies a modification in the structure of the Judicial Branch. Likewise, competencies are subtracted from the Superior Council of the Judicial Branch; and, furthermore, in Article 240 of the bill, the Full Court is conferred the obligation to issue a regulation for the election of the members of that Administrative Board, thereby assigning it a competency that it currently does not have.

The aforementioned articles of the Law provide:

"Article 239- The Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial) is created as an organ of the Judicial Branch, which shall have complete functional, technical, and administrative independence to exercise the powers and authorities granted to it by law.

The Board is responsible for:

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

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

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

It shall be financed by a commission for administrative expenses that will arise from deducting five per thousand from the salaries earned by judicial employees, as well as from the retirements and pensions charged to the Fund. These resources shall pay the per diem allowances of the members of the Administrative Board, the salaries of its staff, 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 who shall be democratically elected by the judicial collective, as well as three members appointed by the Full Court (Corte Plena), with a gender perspective in both cases. Each full member shall have an alternate to substitute for them in their absences, who must meet the same requirements as the full member.

Those who make up the Board shall serve in their positions for five years, after which they may be re-elected, all in accordance with the regulations to be issued for this purpose by the Full Court, after a hearing granted to the trade union organizations of the Judicial Branch.

In the first ordinary session, the Board shall designate the person who is to preside over the sessions; this designation shall be made for a period of one year, and must alternate each year between the representatives of the judicial collective and the Full Court. In addition, a person to substitute for them in case of absence shall be designated. The presiding person shall have a casting vote in the event of a tie.

The members of the Administrative Board shall not receive any per diem allowance but shall have the necessary permits to attend sessions. To be a member of the Board, the following requirements must be met, which must be documented and demonstrated before the Superintendency of Pensions (Supén):

• a)Hold a university degree in careers related to the administration of a pension fund and be incorporated into the respective professional association, when applicable.
• b)Be of recognized and proven honorability.
• c)Have knowledge and at least five years of experience in professional or managerial activities relevant to the administration of a pension fund, such that all members of this organ possess skills, competencies, and knowledge that allow them to analyze the risks affecting the Board and the Fund.

The following may not be members of the Board:

• 1)Persons against whom a final criminal conviction for the commission of an intentional crime has been handed down in the last ten years.
• 2)Persons who in the last ten years have been disqualified from holding an administration or management position in the Public Administration or in entities supervised by the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras, Sugef), the General Superintendency of Insurance (Superintendencia General de Seguros, Sugese), the Superintendency of Securities (Superintendencia de Valores, Sugeval), and the Superintendency of Pensions (Supén).

The composition of the organ must guarantee equal representation of both sexes, ensuring that the difference between the total number of men and women is not greater than one." From a reading of Article 239, transcribed above, it is clear that it creates a new organ within the structure of the Judicial Branch, called the "Administrative Board of the Judicial Branch Retirement and Pension Fund" (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), which is granted complete functional, technical, and administrative independence to exercise the powers, competencies, and authorities granted to it by law, listed in subsections a), b), c), d), e), f), g), h), and i) of the article itself, for the fulfillment of its duties, for which it shall have instrumental legal personality. Thus, an administrative organ is created ex novo and attached within the structure of the Judicial Branch, with determined competencies and authorities; and, concomitantly, competencies and authorities previously granted—by formal law—to the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) are removed and eliminated. This sole circumstance, for the reasons stated, obligates the legislative organ to—necessarily—consult the bill with the Judicial Branch, under the terms set forth in Article 167 of the Political Constitution, since it modifies the administrative organization of the Judicial Branch, with the creation of a new administrative organ, and the suppression of competencies of the Superior Council in favor of this newly created organ, which clearly affects the independence of that Branch of the Republic.

The same can be said regarding Article 240 of the law, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, concerning the composition and designation of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, their term of office, the designation of the person to preside over it, and the requirements to be a member of that Board, among others. It is noteworthy that, even though the Full Court 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, through the law, it is imposed the obligation to regulate matters related to the term of office of the members of the Administrative Board of the Judicial Branch Retirement and Pension Fund, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Supreme Court of Justice, implies a serious intrusion into the competencies of the highest-ranking organ of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. On its face, the cited regulation takes away from the President of the Supreme Court of Justice, and consequently, from the President of the Superior Council of the Judicial Branch, the competency granted by the Organic Law of the Judicial Branch to administer the Judicial Branch Pension and Retirement Fund, precisely in accordance with the investment policies established by the Full Court, as currently contemplated in Article 81, subsection 12.

Notwithstanding the foregoing, the substitute text of the bill, which was adopted by the Special Committee in the session of July 27, 2017, was not consulted with the Supreme Court of Justice, despite containing a series of regulations that affect the organization and functioning of the Judicial Branch. However, as stated in the majority opinion, at folio 2625 of the legislative file, it is recorded that, in response to a motion approved on July 27, 2017, by the Special Committee, by official letter number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Committee Area of the Legislative Assembly granted a hearing to the Judicial Branch regarding the affirmative majority opinion, based on which, the Supreme Court of Justice issued its opinion through official letter number SP-253-17 of August 10, 2017, as recorded at folios 2759 to 2807 of the legislative file.

This means, then, that the Judicial Branch (Poder Judicial) was indeed consulted and issued its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, which occurred even before said text was made known to the Plenary.

Despite this, said text was not the one approved in First Debate by the Legislative Plenary on October 30, 2017, published in Alcance N° 268 to Gaceta Digital N° 212 of November 9, 2017, since the one approved is a substitute text introduced by motion via article 137 of the Regulations of the Legislative Assembly (Reglamento de la Asamblea Legislativa). This latter text was not consulted with the Supreme Court of Justice (Corte Suprema de Justicia), as was appropriate, according to what was analyzed supra, pursuant to the provisions of article 167 of the Political Constitution (Constitución Política).

As argued by the plaintiffs, a constitutional violation was incurred in the legislative procedure. In this regard, it is worth noting that this Constitutional Court (Tribunal Constitucional) has jurisdiction to hear and rule on defects in the formation of laws when any substantial requirement or procedure provided for in the Constitution or in the Regulations of the Legislative Assembly is breached. This is in accordance with article 73, subsection c), of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which states:

**"Article 73.-** An action of unconstitutionality shall be appropriate:

…

• c)When, in the formation of laws or legislative agreements, any substantial requirement or procedure provided for in the Constitution or, as the case may be, established in the Regulations […] of the Legislative Assembly is violated.

…”.

Thus, in accordance with the Law of Constitutional Jurisdiction, if what is being analyzed is a formal law approved by the Legislative Assembly, it would be a matter of subsequent review of laws or legislative agreements, by examining the legislative file to determine whether any essential defect was incurred in the law-making procedure. Therefore, the defect detected in the legislative procedure of Law N° 9544, called "Reform of the Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones) of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) of May 5, 1993, and its Reforms," must be declared due to the omission to consult the Supreme Court of Justice on the substitute text approved in First Debate, since this violates the provisions of article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative body within its structure, granting it substantial powers in pension and retirement matters; and, at the same time, suppressing powers previously granted by law to the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) (articles 239 and 240 of the bill).

This Chamber (Sala), in support of the foregoing, in Judgment N° 2001-13273, of 11:44 a.m. on December 21, 2001, when processing a legislative consultation of constitutionality regarding a bill to reform the Criminal Code (Código Penal), insofar as it modifies aspects related to the -merely administrative- organization or functioning of the Judicial Archive (Archivo Judicial), held, unanimously, that:

"In the same way, they modify the scope of functions of the Judicial Archive, increasing the amount of data it must register. All of the foregoing undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the foregoing, the Legislative Assembly omitted to carry out the respective consultation with the Supreme Court of Justice (at least it does not appear in the certified copy of the file sent by the President of the Directorate), without said aspects having previously been included in the texts consulted with the Supreme Court of Justice, for which reason the Chamber deems that a violation of the duty imposed in article 167 of the Political Constitution was incurred regarding the functional independence recognized by the constituent power to the Judicial Branch, and in that sense, it must be understood that the procedure followed prior to the approval of the amended opinion is null from the constitutional point of view and must be declared as such." It should be noted from the foregoing that the defect pointed out was not remedied, in second debate, even if the Law had been approved by a qualified majority, since this would only be so if it involved the approval of a text mandatorily requiring consultation with the Judicial Branch, for affecting its organization, structure, and functioning -as in this case-, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it departing from the technical opinion of the judicial body. None of this occurred in the legislative procedure, since Law N° 9544 of April 24, 2018, did not even obtain the qualified vote in the second debate, and even worse, the approved text was without institutional consultation. The crux of the problem at hand is, indeed, the approval -in First Debate- of an unconsulted text, in contravention of what is prescribed in article 167 of the Political Constitution, a procedural defect that is irremediable and incurable. This is because, while it is true that the substitute text of the bill, which was adopted by the Special Commission in the session of July 27, 2017, was consulted with the Supreme Court of Justice, this text was not the one finally approved in First Debate, but rather a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been set forth. And furthermore, even though the previous text approved by the Special Commission in the session of July 27, 2017, was indeed consulted with the Court, the latter having shown disagreement with the text made a qualified vote by the Plenary mandatory, pursuant to article 167 of the Fundamental Charter (Carta Fundamental), which was also not done.

It is worth remembering that the institutional consultation aims at protecting judicial independence, which is much more complex than reducing it to the protection of a jurisdictional jurisdiction (fuero jurisdiccional). The mandatory institutional consultation must be timely, since otherwise, it would be a paper obligation that would not provide the true safeguards that the constitutional text seeks to establish between equal Branches of the Republic. Upholding a contrary position, and permanently, by the majority of the Court cannot be sustainable over time, for even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is predominantly so, regarding the citizen guarantees that the Constituent Power sought to guarantee in article 167, and later, improved with the reform to numeral 177 of the Political Constitution.

The Full Court (Corte Plena), in Session N° 27, of August 7, 2017, Article XXX, when processing the consultation to the Legislative Assembly on the Affirmative Majority Opinion (Dictamen Afirmativo de Mayoría), approved by the aforementioned Special Commission, ordered:

"It is considered that it has to do with the structure and functioning of the Judicial Branch, because it directly affects the life project of all judicial servants since it means a decrease in retirement benefits, even when they have fulfilled all the legal requirements to fully enjoy the retirement right. This includes the payment of the necessary and corresponding dues; the payment of income; contributions both to the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial) and to the system of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) and another series of burdens that, if the text is approved as it has been proposed by the reporting Commission, would result in confiscatory actions.

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

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

On the other hand, the renewal of personnel who manage to stay on is affected. The Judicial Branch would have older staff members, who remained working solely due to the decrease their income would suffer in the event of retirement.

The judicial population would be at a crossroads, where while it is true that there is a desire to opt for that right and the motivation to retire to rest, they find themselves placed in a condition where they must assess their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to the pension, and those natural due to reasons of age. However, this process also has its restrictions; from a legal standpoint, the Organic Law of the Judicial Branch prohibits retired persons from seeking other work, and socially, it is a reality that after forty years of age, there are factual limitations regarding labor reincorporation.

It is highly related to the structure and functioning, since the Judicial Branch loses competitiveness in the labor market, to the detriment of the quality of the Administration of Justice. The salary of the positions is diminished by the contribution to the pension and retirement regime, which is four times greater than the contribution of other regimes. This hinders the recruitment of human resources and the public service is harmed.

Furthermore, the regulation of the Retirement and Pension Fund of the Judicial Branch should not be evaluated solely from an economic perspective, since we are before fundamental -inalienable- rights associated with every worker, who during their working years contributed a percentage higher than the general one to a regime with the expectation of having a pension that allows them to meet their needs and enjoy, together with their surroundings, their retirement years peacefully and with quality of life.

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

The proposed tax is imposed at a time in the retired person's life when they are most vulnerable, close to or already of old age." One cannot overlook that it is at this stage where people generally require greater medical attention and special care, among other things, given that during their working life, some contributed more and some less, according to the income received, to the system with the expectation of having the resources needed to face this process, and if this Bill were approved, that life plan would be truncated.

It would cause a significant social impact, since people in retirement suddenly lose a substantial part of their income, but retain a pre-established expense status, which becomes a repercussion not only on their economic situation but also on their health, being contrary to the intended objective of a pension system, which is to have sufficient income during life after work, a scenario in which it is important to remember that, on many occasions, the retired person continues to have other older adults or minors under their care and maintenance.

Taking into account the observations made regarding the Bill processed under file 19922 (20035), which are supported and grounded in the actuarial study carried out by the IICE and based on the powers that articles 167 of the Political Constitution and 59, subsection 1) of the Organic Law of the Judicial Branch confer, it is considered that the consulted text does affect the structure, organization, and functioning of the Judicial Branch, and in that sense, the Legislative Assembly must take into account what was stated by the Full Court in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from said binding opinion.

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

As a corollary, regarding the Bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch." The final part of the cited constitutional article (167) literally states that "to depart from the opinion of the latter [The Court], the vote of two-thirds of the total members of the Legislative Assembly shall be required"; and, said final text, -not consulted in any case- was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file). And, for the second debate, it did not obtain the qualified majority, reaching thirty-four votes (folios 4437, 4608, and 4637 of the legislative file).

B.- The legal and social dynamics that informed the reform of article 177 of the Constitution. It is necessary to address the majority's opinion, which we consider with respect -but with equal vehemence- the reasons for which it is considered that they use a lax interpretation of the obligation for institutional consultation established in article 167 of the Constitution, in addition to what was previously stated. It is clear that, in general, the constitutional doctrine underlying institutional consultation is based on similar reasons: to ensure that the legislator has the best first-hand information to legislate, that is, to have the specific technical opinion. This is the recognition by the Constituent Power of institutional autonomies, as well as, at its highest level, the defense of the independence that corresponds to a State Branch or a fundamental constitutional body of the State. In the processing of complex laws, such as those where the Judicial Branch holds a contrary opinion, it is when a qualified majority of legislators is most required to promote those significant changes in legislation through a true consensus.

Although this Chamber, in some of its rulings, has established that institutional consultation does not apply to bills of a national or general nature, this jurisprudential criterion alone cannot suffice to dismiss the need to burden the legislative procedure in the Legislative Assembly when it concerns the qualified majority established in numeral 167 of the Constitution. This must be dimensioned not only regarding issues related to the institutional autonomy of the Judicial Branch, but especially, regarding those concerning the direct or indirect impact on judicial independence, which is guaranteed in the Constitution through the fundamental organic structure of the State. This is especially so if, as in the case at hand, there have been various flaws in the legislative procedure, referred to later on.

It is clear that the criteria for denying institutional consultation on the grounds that a bill is of a national or general nature cannot be used indiscriminately, especially because that classification would encompass a large number of bills that have an impact on the national budget; in this situation, a large majority would have a national impact used to establish the defense of public objectives viewed from economic perspectives. On the contrary, this minority believes that the jurisprudential criterion cited by the majority does not apply when dealing with bills that could affect the organization of the Judicial Branch, as a fundamental body of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent scope on the judicial function (which is universal and with full jurisdiction over all legal disputes), which expresses the fundamental functions of control, as much as and more than those of semi-autonomous and autonomous institutions, because it relates to the functional specialty and independence of a branch of the Republic. The absolute weight of the fundamental institutional framework of the State must delineate the criteria for the examination and scrutiny that this Constitutional Court must carry out, so that it cannot be examined in the same terms as is done for other autonomous institutions, since evidently the consequences are very different for the State and the population in general. Suffice it to cite Ruling No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

"...in general, the judicial function is universal and has full jurisdiction over all legal disputes that arise in the country. Universality refers to competence over all disputes submitted to the Courts of Justice, and even those not listed therein or in the law, by the principle of hermeneutic plenitude (article 153 of the Political Constitution). Universality implies 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 competence to definitively decide on all disputes, channeling the issues in accordance with the respective procedural path, generally concluding with a judgment -the normal way to end the process- with the status of res judicata, which is an expression of the power and function of full, universal jurisdiction, and which implies the prohibition of reopening the discussion on the same dispute, 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 Power, of course, assigned a specific field of action to the Judicial Branch so that it functions with independence, which is nourished by and participates in all Western thought, inspired by the principles of impartiality and justice; it simply cannot be compared to or assimilated to that of the minor entities of the State; on the contrary, it is clear that article 167 of the Political Constitution is situated in consideration of the institutional importance and its functional autonomy within the grand scheme of the State.

Earlier in this same judgment, 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 extending into those of the other independent and equal-ranking Branches, and by each exercising the functions of checks and balances, they can control and limit the other Branches, as authorized by the Political Constitution. In accordance with the distribution of the fundamental functions of the State, when the Legislature enacts laws, it is subject to the supremacy of the Political Constitution and to the limits enshrined by the Political Constitution, which definitively conditions its regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could neither fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the fundamental Charter; finally, the Judicial Branch could not resolve against the grain of the rules applicable to a specific case, except for conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Political Constitution, being subject to them. In accordance with articles 10 and 152 and following of the Political Constitution, it must ensure the regularity of all legislation, therefore it could not apply invalid or unconstitutional regulations, because in addition to the fundamental function of administering justice, it must ensure that no action or omission violates the essential principles of any social and democratic State of Law, among them: the principles of legality, normative hierarchy, and respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch ultimately interprets and applies the Political Constitution, having the control of constitutionality of norms and omissions -the monopoly of rejection- when legislation is contrary to it, as well as when they violate fundamental rights, because it is naturally the ultimate guarantor of the principle of legality, the ultimate defender of the ends and objectives of the State and of the realization, through Law on a case-by-case basis, of the well-being of the human being." Now, the judgment addresses the generalities of the Fund and its legal development from the beginning of the last century, in harmony with Ruling No. 2018-5758 of 3:40 p.m. on April 12, 2018, to explain the legal development of social security and the pension system (régimen previsional) of the Judicial Branch. However, reference should have been made to the fact that the system's shortcomings also served as a spur at the constitutional level, since there were others that were developed to guarantee greater institutional stability and to favor judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the country's institutional framework, which was obtained with the reform of article 177 of the Constitution, through which the economic independence of the Judicial Branch was guaranteed. It is therefore worth noting that if the institutional and social dynamics of that time were important, those of the amendment to the Political Constitution were even more so, which are by no means negligible, as they were aimed at strengthening the Judicial Branch, and with the same weight, producing protection within the civil service workforce. The economic and legal dynamics say as much or more, because despite the legal achievements and due to the number of problems that existed in the period prior to the constitutional reform, a substantial improvement of that economic independence of the Judicial Branch within the Political Constitution itself was conceived from the bosom of the Full Court and was welcomed by the Legislative Assembly. There is no doubt that the protections that the derived Constituent Power established in the reform are equally distributed over the stability of the judicial civil service workforce. Thus, limitations on installations and infrastructure, providing better work tools, improvement of salaries, more resources for the Retirement and Pension System (Régimen de Jubilaciones y Pensiones) of the Judicial Branch, among others, were contemplated. The claimants' demands should have found echo in this avenue of the action of unconstitutionality, some of which are listed at the beginning of this dissenting vote. Judicial independence is defended with the tools that the Constituent Power precisely provided, within which the most consolidated democracies in the world dedicate themselves to producing instruments for the protection of judicial and economic independence, one of them being the qualified vote in the event that a bill affects the organization and functioning of the Judicial Branch.

In Ruling No. 2006-07965 of 4:58 p.m. on May 31, 2006, this Chamber established that:

"VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the Judicial Branch is responsible, par excellence, for the exclusive exercise of the jurisdictional function -as noted in the previous recital-, the truth is that it also exercises, exceptionally or extraordinarily, functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to one body or entity, nor does it possess a typical content that characterizes it, since, as the doctrine has well pointed out, it is easier to describe the public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and needs an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, promptly and fully. This is what has been called the 'public service of the administration of justice.' Thus, the administrative support or apparatus that allows judges and courts to issue their rulings forms that service, whereby the concept refers to the administrative profiles of the jurisdictional function, such as the organization and functioning of the courts, logistics -provisioning and supplies-, the efficient and effective management or administration of judicial offices to avoid undue or unjustified delays in the processing of the case, the administrative function exercised by the administrative bodies of the Judicial Branch (e.g., administrative resolutions of the Full Court, the Superior Council of the Judicial Branch, the Judicial Inspection Tribunal, the Council of the Judicature and, in general, the various administrative departments -Executive Directorate, Procurement, Personnel, etc.-) and auxiliary bodies attached to it such as the repressive police exercised through the Judicial Investigation Organization (Organismo de Investigación Judicial), the exercise of public prosecution by the Public Ministry, and the provision of free defense through the Public Defense Office. However, although that materially administrative function is carried out by the support or apparatus backing the jurisdictional function, it must be understood in a strictly exceptional sense, that is, only that which is necessary and suitable to assist in the exercise of the materially jurisdictional function is admissible, and no other. By reason of the foregoing, by application of the constitutional principle of reservation or exclusivity of jurisdiction, it is required that the Judicial Branch use and allocate the majority of its resources to the exercise of a materially jurisdictional function.

"VII.- ECONOMIC AUTONOMY AND INDEPENDENCE OF THE JUDICIAL BRANCH. One of the great historical achievements of the Costa Rican Constitutional State of Law was the economic autonomy of the Judicial Branch achieved through the partial reform to the Political Constitution of November 7, 1949, by means of Law No. 2122 of May 22, 1957.

This law added a second paragraph to the original version of Article 177 of the Political Constitution, which provided as follows:

“(…) In the draft bill, the Judicial Branch shall be allocated a sum of no less than six percent of the ordinary revenues calculated for the economic year. However, when this sum proves to be greater than that required to cover the fundamental needs budgeted by that Branch, the aforementioned department shall include the difference as an excess, with a national investment plan, so that the Legislative Assembly may determine what is appropriate (…)”.

This partial reform to the Constitution strengthened, in a manner consistent with Article 9 which proclaims the separation of functions, the independence of that Branch of the Republic. The constitutional amendment originated from the proposal formulated on September 6, 1956, by then-Magistrate Evelio Ramírez to the Corte Plena, a collegiate body that approved it in the session held that same day. In the justification for the constitutional modification—which would later become the statement of motives for the reform in the legislative procedure—Magistrate Evelio Ramírez insisted on the need to allocate to the Judicial Branch a minimum or “sum of no less than six percent of the ordinary revenues calculated for the economic year,” to overcome the lamentable situation of that Branch of the Republic, having received in the seven years preceding 1956 only an average percentage of 2.75% in relation to the General Revenue Budget. The manifest purpose of the Magistrate who spearheaded the constitutional reform and of the Corte Plena in accepting his proposal was to have greater financial resources to diversify and strengthen the various jurisdictional orders (sic), increase the number of courts and tribunals and the personnel necessary to meet the demand for service, reform and improve processes, provide adequate infrastructure and material resources to the courts and tribunals, improve the salaries of those dedicated to the delicate and difficult task of administering justice and their retirement or pension regime, all for the sake of securing more prompt and complete justice. In that sense, Magistrate Evelio Ramírez made considerations such as the following:

“(…) the Supreme Court of Justice, knowing better than anyone the true needs of the Judicial Branch, would prepare its own preliminary draft Budget taking into account the factors that, in its judgment, require economic variations within an honest, rational, and fair criterion. And it would not only attend to the proper installation of its multiple offices—which today offer an almost ruinous appearance throughout the Nation—but would also supply them with typewriters, adequate furniture, and other material means, indispensable for working with the greatest possible efficiency. Furthermore, all judicial servants could be paid in a more equitable manner (…) The same Retirement and Pension Fund—whose stability is seriously threatened—could be reinforced from that global allocation (…) The average percentage that has corresponded to the Judicial Branch in the last seven years has been 2.75 percent, in relation to the General Revenue Budget (…) Experience has shown that the indicated percentage is entirely insufficient for the adequate functioning of the Judicial Branch. To realize this, one need only look at the inadequate buildings occupied by almost all the tribunals of the Republic, at the slowness with which various judicial matters are processed, due to the scarce number of tribunals and the personnel available to those currently functioning, at the insufficient number of typewriters and other furniture that are of imperative necessity, at the low salaries of judicial servants, etc. etc. (…)”.

For its part, the special legislative commission appointed to issue a report on the draft reform to Article 177 of the Constitution, in the first legislative session, in its report of October 9, 1956 (visible at folios 20-21 of the legislative dossier), considered the following:

“This constitutional reform—with which the autonomy of the Judicial Branch will be definitively secured in the economic aspect—will make it possible for the multiple problems currently confronting said Branch due to the limitation of economic resources allocated to it in the national budgets to find an adequate solution in the future. These problems go way back and are aggravated day by day as a consequence of the growth and development of the population, which increasingly demands more justice administration services. The judicial offices do not have sufficient personnel to attend to the many problems that arise daily, and in material terms, they are housed, with very few exceptions, in totally inadequate premises and without sufficient furniture or equipment (…) The remunerations of judicial servants are, on the other hand, meager in such a way that the judicial career offers no stimulus or incentive whatsoever to those who wish to embark upon it, and this often distances elements of vocation and capabilities who could, under other conditions, render their services as Mayors, Judges, or Magistrates”.

Consequently, the guiding idea that inspired the constitutional reform of 1957 was to strengthen the organization and functioning of the Judicial Branch, so that it would exercise its essential function of imparting or administering justice efficiently and effectively. Under this understanding, any provision of the ordinary legislator tending to attach 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 employment, even if only in a small percentage, of the minimum budget guaranteed to it for other purposes. It can be affirmed, then, that the second paragraph of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees an effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and to obtain prompt and complete justice”.

The affirmation that essential administrative competencies of organization and those connected to the jurisdictional function are not being removed is very relative, if, as explained above, an organizational and personnel administration aspect of the Judicial Branch is being modified. This ignores the history of the constitutional amendment, where it was indeed contemplated as justification for passing the reform to Article 177. The majority affirms that it concerns the same essential content of a legal institute, but in doing so the law eliminates the administration of pensions in the Superior Council of the Judicial Branch, to grant it to an Administrative Board of the Retirement and Pension Fund of the Judicial Branch. It is true that it remains within the Judicial Branch, but now in a deconcentrated organ, which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156, Constitutional). There is a schism that produces an impact on the organization of the Judicial Branch, if one wishes, broadly speaking, in its capacity to organize itself, in the management and administration of the fund, for the exercise of the social security rights of the personnel of the Judicial Branch, which, it is worth saying, is contrary to the criterion of the Corte Plena, due to the omission in carrying out an institutional consultation, and for ignoring its opinion, against the principle of the functional legality of a Branch of the Republic. Remember that the reform to Article 177, Constitutional, came attributed with the vision of reinforcing judicial independence, including that of its officials, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly incorporated later into the Political Constitution of 1949, did not go so far as to include—explicitly—the irreducibility of the salaries of judicial officials, as in other latitudes; however, it did work in our country because it allows it to enjoy the indices of judicial independence that Costa Rica has enjoyed comparatively on a global level, which is clearly the fruit of the economic independence of the Judicial Branch. This has been due in part to the recognition of the public employment regime that was consolidated throughout the republican life of this country.

Judgment No. 1996-03575 of 11:18 a.m. on July 12, 1996, indicated regarding:

“… the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that these are—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—the most capable of determining their needs and knowing their particular conditions”.

By Judgment No. 1998-005795 of 4:12 p.m. on August 11, 1998, which established that:

“From the provisions of Article 154 of the Political Constitution, -which says-:

'The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in the knowledge of the matters submitted to his judgment. In relation to this official, it must also be recognized that there is a double protection to his investiture, since the judge's independence—as a guarantee for the parties involved in the sub judice matter—is both external and internal, in the sense that he is protected from influences and incidences—both external and internal—that may sway in one direction or another the decision of a concrete case submitted to his knowledge, so that they rule in strict adherence to the provisions of the applicable regulations; in other terms, the judge is protected so that neither the parties involved in the process, third parties, superior judges in grade, 'influential' members of the Branches of the State, including the Judicial Branch itself, can influence his decision, making it even less acceptable to have an obligation—imposed by a superior in grade—to rule in a determined manner on a concrete case or to coerce the judge in that sense. The guarantee of independence of judges, more than a guarantee for these officials—which it effectively is—constitutes a guarantee for individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws”.

By Judgment No. 1998-005798 of 4:21 p.m. on August 11, 1998, this Chamber established that:

“The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154 (sic). Also, the American Convention on Human Rights, a normative instrument of international rank and direct application in our country, refers to the topic. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that:

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

2.- ...' The independence of the Judicial Organ (sic) is posed externally. The Judicial Organ (sic) is independent vis-à-vis the other Branches of the State, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, for it is they who must make the function entrusted to it a reality; it is to this independence that I will refer hereafter. The independence that should truly be of interest—without diminishing the importance of that of the Judicial Organ (sic)—is that of the judge, related to the concrete case, for it is this that functions as a citizen guarantee, under the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the judges who comprise it also being able to be independent, but it can well happen that the Organ as a whole has its independence normatively guaranteed, but that its members are not independent, for multiple reasons”.

This is no small thing, considering that the organization and administration of the judicial function not only should not be limited to the jurisdictional part as the majority understands it, but rather this is complemented by other organizational functions, which should be respected as belonging to a Branch of the Republic. As stated above, the amendment to the Political Constitution contemplated not only the jurisdictional aspects, but also the operational ones of the Judicial Branch, so it would have been contemplated by the original Constituent Power in Article 167, because from the heart of the Corte Plena in 1956, and in the Legislative Assembly in 1957, it was adopted from that foundational era of the Second Republic, to respond to the needs of officials in their salaries and pension regime, a pivotal precept for Costa Rican democracy.

It is evident that the Pension and Retirement Fund of the Judicial Branch formed an essential part of the economic independence of the Judicial Branch of that era, and must continue to be so in ours, according to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The Derived Constituent Power, by accepting the vision of the Corte Plena, took a decisive step to receive the management independently and autonomously from the rest of the political powers, which, in turn, allowed said management and governance to be carried out within the legal and constitutional purposes of the administration of justice.

Nor can it be affirmed, as the majority states, that the recognition of the constitutional percentage of 6% was smooth and without any problem; on the contrary, what is characteristic of it is that the relationship between branches of government has been stony, rough, abrupt, such that every budget has been obtained with great effort or timely negotiation by the representatives and authorities of the Judicial Branch. In fact, the Constituent Assembly foresaw such a possibility of negotiation and consideration by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Political Constitution, with 6% of the ordinary revenues of the Republic's fiscal year, is an aspect that has served as a stimulus for the legislator to use the orbit of the Judicial Branch as a factor aggregating administrative institutions foreign to the judicial function. Precisely, Judgment No. 2006-07965 of 4:58 p.m. on May 31, 2006, cited above, concludes with the declaration of unconstitutionality of provisions of the Notarial Code, for establishing a body of an administrative nature such as the Notarial Directorate within the Judicial Branch in violation of the constitutional principles of separation of functions, reservation or exclusivity of jurisdiction, independence and financial autonomy of the Judicial Branch, and the right to prompt and complete justice for the inhabitants of the Republic.

In continuity with Judgment No. 2017-09551 of 11:40 a.m. on June 21, 2017, it was also indicated that:

"For all these reasons we must recognize that in order to rationally organize work, with efficacy, efficiency, simplicity and speed, every primary function must be accompanied by the other functions—non-primary ones of the constitutional body—and be aligned with the primary function; thus, it must be recognized that both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all of its activity; which, logically, reaches the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative one of personnel, public agents and servants, etc. Evidently, in the Costa Rican context it would be a serious contradiction to go against a long legislative tradition of entrusting powers to a single Branch (which does not exist in other latitudes), but thinking of guaranteeing those horizontal controls in an independent Judicial Branch." Therefore, if matters related to the pensions and retirements of the Judicial Branch were included as part of that economic independence of the Judicial Branch as a substantive issue since 1956, it is for the undersigned an additional reason to seek the application of Article 167 of the Political Constitution, since the change of scheme for a deconcentration of the administering body was modified by a subsequent law. This sets the bad precedent that, in the future, transient majorities in the Legislative Assembly may venture into other aspects of the management of Judicial Branch personnel.

Another reason is that a reinforced majority guarantees not only judicial independence from an institutional point of view, but also for the person of the male and female judge individually considered, in which economic, social and cultural rights, established through a social security and pension regime, are affected. It cannot be denied that the Judicial Branch forms part of a whole, the "State"; its strategic and key position within its organization must also be felt, with the public functions of its officials that are highly specialized and attached to the Law, as was described earlier in the background of this Court, and whose function is ultimate in the resolution of conflicts and as a pacifier of them. This clearly has a cost and sacrifice for its personnel, which must be compensated by the "State," but even more so in a functional democracy like the Costa Rican one, which must assume not only the economic part of its maintenance, but also its protection.

Judicial independence has the purpose of guaranteeing judicial impartiality, which is shared with the majority of the Court, although not with the clarity that this minority would desire, since the problem of the reform to Article 177 of the Political Constitution crystallized the deeply felt need to protect in general terms the institutionality and administration—also—of everything related to the personnel of the Judicial Branch, which should be jealously guarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed with, in the face of the regressive effects of legislation that may occur in the future. Recourse must be had to the constant rule of the importance of protecting the part of remuneration and matters relating to the pension regime of male and female judges, of their officials, in the most important legal systems of the world.

In this way, the undersigned justices consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the lack of consultation with the Judicial Branch regarding the text approved by Parliament by absolute majority and not by qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), by affecting its organization, structure, functioning and independence; and, with that, it is contrary to the Law of the Constitution. By reason of the foregoing, it is inconsequential—for the undersigned judges—to proceed to analyze the rest of the substantive arguments made by the plaintiffs against the substantial content of the law, except in those cases in which it was required to take a position so that there would be a vote of full conformity (Article 60.2 of the Civil Procedure Code), which is reflected in the judgment of the majority of this Chamber." Thus, the undersigned justices Salazar Alvarado, Garita Navarro and Justice Jara Velásquez, hereby record our dissenting vote.- Luis Fdo. Salazar A. José Roberto Garita N.

Rosibel Jara V.

CO10/22 It considers that, based on the provisions of the Constitution (articles 50, 51, 73 and 74), international regulations (Universal Declaration of Human Rights -articles 16 and 25-, International Covenant on Civil and Political Rights -article 23-, International Covenant on Economic, Social and Cultural Rights -article 10-, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights or “Protocol of San Salvador” -article 9-, ILO Convention 102 -articles 59, 60 and 63- and ILO Convention 128 -articles 20, 21, 24 and 25) and constitutional jurisprudence (votos 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001 and 1617-2015), article 224 bis of the Organic Law of the Judicial Branch is contrary to Constitutional Law by depriving all Judicial Branch workers of the possibility of availing themselves of retirement, despite having contributed to the regime by paying the respective fees, since, for them to be credited with having worked in another state institution, they necessarily must have contributed the amount corresponding to the number of years credited: “...the interested party must reimburse this Fund the sum owed for the contribution differences updated to present value by the consumer price index (índice de precios al consumidor, IPC), defined by the National Institute of Statistics and Censuses (Instituto Nacional de Estadística y Censos, INEC). Furthermore, the interested party must pay the average real return that would have been obtained on the transferred sums, had the Judicial Branch Retirement and Pension Fund invested them during the credited period”. It insists that, expressly, the judicial worker is being deprived of such a retirement option, even though they paid the amounts corresponding to the Judicial Branch pension regime according to the fees paid while working in another State institution, claiming that they do not meet the requirements established in the challenged norm, specifically, at least 20 years of service in the Judicial Branch. Such regulation distances the Judicial Branch from the international commitments acquired by our country, which are mandatory in nature and have likewise been repeatedly validated by the Constitutional Chamber, disregarding the sole state employer principle (principio de estado patrono único), which arose as a way to ensure, for workers who transfer from one State institution to another, continuity in the enjoyment of guarantees recognized throughout the public sector. This theory stems from the thesis that regardless of the public institution served, one works for the same employer, which is the State, such that the thought that for not having worked 20 years in the Judicial Branch, even when one has done so in another state institution, one cannot retire under the institution's pension regime, is discriminatory. On the subject, one may consult, among many others, opinions C-152-2006 of April 20, 2006 and C-358-2006 of September 8, 2006, issued by the Office of the Attorney General of the Republic (Procuraduría General de la República). It also mentions judgment of the Second Chamber of the Supreme Court of Justice No. 34 of 9:40 a.m. on March 5, 1993, cited by No. 269 of 9:30 a.m. on September 16, 1994. It also cites opinion No. C-256-2013 of November 15, 2013 issued by the Office of the Attorney General of the Republic. It adds that the Labor Code provides in its article 153 that “leaves without pay, rest periods granted by this Code, its regulations and related laws, justified illnesses, the extension or immediate renewal of the employment contract, nor any other analogous cause that does not terminate it shall not interrupt the continuity of work”, it being understood that the employee's labor rights persist. Furthermore, it must be taken into consideration that any type of personnel movement within the same institution or from one institution to another also does not produce a rupture in the employment relationship; this because there is no new service relationship, as it involves a single employer, which is the State. Article 4 of the General Law of Public Administration states: "The activity of public entities shall be subject as a whole to the fundamental principles of public service, to ensure its continuity, its efficiency, its adaptation to any change in the legal regime or in the social need it satisfies and equality in the treatment of the recipients, users or beneficiaries". Based on the foregoing, the rule cannot exclude judicial employees who have not worked for 20 years for the Judicial Branch, even when they have done so in other State institutions and have contributed the corresponding differences in fees, paying the Fund for the years served, this because they have worked for a single employer, The State, regardless of the Branch of the Republic for which they have worked. Article 224 bis of the Organic Law of the Judicial Branch amended by Law number 9544 of April 24, 2018 violates the fundamental guarantee of retirement, not only by openly denying this possibility to persons who have worked for different State institutions, including the Judicial Branch, for not reaching 20 years of service in the institution, despite having paid the corresponding fees, but also by being contrary to the principle of equality, since it promotes differentiated treatment among judicial employees, providing protection only to some and abandoning others, even though all have the same right. It considers that the indicated rule violates the fundamental right to social security and the right to retirement. It is contrary, likewise, to what is regulated in the Constitution (articles 50, 51, 73 and 74), international regulations (Universal Declaration of Human Rights -articles 16 and 25-, International Covenant on Civil and Political Rights -article 23-, International Covenant on Economic, Social and Cultural Rights -article 10-, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights or “Protocol of San Salvador” -article 9-, ILO Convention 102 -articles 59, 60 and 63- and ILO Convention 128 -articles 20, 21, 24 and 25) and constitutional jurisprudence (votos 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001 and 1617-2015), by depriving all Judicial Branch workers of the right to avail themselves of retirement, despite having paid the corresponding fees, promoting differentiated treatment among judicial employees, providing protection only to some and abandoning others even though all have the same right. Retirement, as a fundamental guarantee, is an integrating element of the right to social security, since it guarantees the worker that they will receive compensation for the work they performed during the time served. It accuses a violation of the principle of reasonableness. It affirms that reasonableness is actually a matter of degree regarding the violation of constitutional principles and, therefore, reasonableness (as a general limit of public function) is nothing more than the generalization (to the entire system) of the limits on the exercise of discretion in the Administration; stated differently, it is a facet of the prohibition of arbitrariness, which concerns the entire public apparatus and which in the present matter is absolutely proven. Thus, the control over the limits of the exercise of administrative discretion is restricted to ensuring compliance with the “due minimum”, so the Chamber must recognize the manifest arbitrariness in the violation of the sole employer principle (principio de patrono único) and that the legislation determining the years of service legally established in the regulations also cannot go further, the absence of technical reasonableness being absolutely clear to determine why 20 years are required to be eligible for retirement, aspects that are absent from the legal framework subject to the present action. It asserts that various authors consider that the constitutional norms that give foundation to the principle of reasonableness are articles 41 and 74, by making direct reference to the term justice, while others consider that its constitutional foundation is found in the second paragraph of article 28, which enshrines the principle of legal freedom. As a corollary of the different positions, the principle of reasonableness shapes fundamental rights considered integrally. Furthermore, the principle of reasonableness proves to be a parameter of constitutionality of norms. It indicates that, in this case, it is not enough to state that a means is reasonably suited to an end; it is necessary, furthermore, to verify the nature and the magnitude of the limitation that a personal right must endure through that means, namely, that the minimum years of service in the Judicial Branch to be eligible for retirement are irrationally increased from 5 to 20 years. In this way, if the same end can be reached by seeking another means that produces a less onerous limitation on personal rights, the chosen means is not reasonable, as in the present matter. It cites votos 03933-98, 08858-98, 05236-99 and 01739-02 of this Chamber, referring to the principle of proportionality. It indicates that, in summary, it is not reasonable that a person who is a public employee and who comes from another institution, who is received by the institution itself, being credited with the years served, and being authorized to pay the fees in compensation, is required—by means of a rule lacking technical or legal reasonableness, which empties the essential core of the expectation content for retirement of those who already face a similar situation and of those who could eventually have an employment claim in the Judicial Branch—at least 20 years of service in the Judicial Branch. The time limit determined in the cited rule regarding 20 years is absolutely ineffective and its sole purpose in its drafting and material content is to render nugatory the possibility of working for the Judicial Branch under conditions of minimal dignity. It alleges an infringement of the principle of proportionality. It argues that the challenged rule is not proportional, because, in accordance with the very requirements of the amended rule and the life expectancy of Costa Rican citizens, it will make it practically impossible for them to access retirement. There is no proportionality between 5 years and 20 years, an absolutely disproportionate and arbitrary change that is not legally sustained, casting doubt on the reason for that minimum period and not preserving 5 years or establishing some other service time. It points out that there is an obligation to respect the principles of proportionality and reasonableness. It cites judgments of this Chamber No. 08858-98, 2000-02858 and 2002-4842. It requests that, consequently, the unconstitutionality of article 224 bis of the Organic Law of the Judicial Branch amended by Law number 9544 of April 24, 2018 be declared.

**2.-** For the purpose of substantiating the standing it holds to bring this action of unconstitutionality, the plaintiff alleges that it acts in defense of a corporate interest, in particular, to safeguard the interests of the members or associates of ANEJUD, in particular, the rights to social security, to retirement and to the protection of the family, of persons working in the Judicial Branch who pass away. It alleges that it acts in defense of the interests of its associates, regarding the possibility of obtaining a fair and dignified pension for their family members in the event of orphanhood. It points out that, consequently, its standing derives from paragraph 2 of article 75 of the Law of Constitutional Jurisdiction.

**3.-** By resolution at 11:56 a.m. on November 8, 2021, the plaintiff was cautioned that, in accordance with article 4 of Law number 3245 of December 3, 1963, they had to affix and pay the stamp of the Bar Association (Colegio de Abogados), corresponding to the authentication of the initial brief.

**4.-** By means of a brief received by this Chamber at 1:26 p.m. on November 10, 2021, the plaintiff complied with the previous caution.

**5.-** Magistrate Cruz Castro raised a motion for recusal, in his capacity as president of the Supreme Court of Justice, for which he affirms that he could be called as a party or as an intervenor in the present matter.

**6.-** By resolution at 9:53 a.m. on January 4, 2022, the president of the Constitutional Chamber ordered that Magistrate Cruz Castro be removed from hearing this proceeding. Likewise, the alternate magistrate who replaces him was declared authorized to hear the present matter in accordance with article 49 of the Organic Law of the Judicial Branch.

**7.-** Article 9 of the Law of Constitutional Jurisdiction empowers the Chamber to dismiss outright or on the merits, at any time, even from its presentation, any petition submitted for its consideration that turns out to be manifestly improceedent, or when it considers that there are sufficient elements of judgment to reject it, or that it involves the simple reiteration or reproduction of a previous, identical or similar petition that was rejected.

Authored by Magistrate **Castillo Víquez**; and, **Considering:** **I.- REGARDING THE STANDING OF THE PLAINTIFF.** The plaintiff has standing to bring this action of unconstitutionality, pursuant to numeral 75, second paragraph, of the Law of Constitutional Jurisdiction, since it acts in defense of a corporate interest; specifically, to safeguard the interests of the union's associates.

**II.- OBJECT OF THE ACTION.** The plaintiff challenges, specifically, article 224 bis of the Organic Law of the Judicial Branch, added by ordinal 1 of Law No. 9544 of April 24, 2018, which establishes:

“*Article 224 bis- **Servers with twenty or more years of service in the Judicial Branch** may avail themselves of early retirement if the age or the number of years of service cited in the preceding article is not met. This shall be calculated as follows:* *a) If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement shall be calculated in proportion to the server's age:* *1) Women must have reached at least sixty years of age and men at least sixty-two years of age.* *2) The calculation shall be made by multiplying the pension obtained according to the provisions of article 224 for the calculation of ordinary retirement, by the server's age and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement.* *b) If retirement occurs upon the server reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement shall be granted in proportion to the years worked, **provided that the number of years served is not less than twenty**. To determine it, the amount of ordinary retirement, indicated in article 224, shall be multiplied by the number of years served and the product shall be divided by thirty-five; the result shall be the amount of the early retirement.* *(As thus added by article 1 of law No. 9544 of April 24, 2018)*” (the highlighting does not correspond to the original) **III.- ON THE MERITS.** In the *sub lite*, the plaintiff questions that the cited article 224 bis of the Organic Law of the Judicial Branch -added by Law No. 9544 of April 24, 2018- requires, for the purpose of availing oneself of early retirement from the Judicial Branch Pension and Retirement Regime, that judicial servers have “*twenty or more years of service in the Judicial Branch*”, to the detriment of those persons who have previously worked for other public institutions or dependencies. Especially since the Organic Law of the Judicial Branch itself, in its article 226, provides that if a judicial server has “*contributed to other pension regimes established by another dependency or by another State institution, the Judicial Branch Retirement and Pension Fund, at the time of granting retirement, shall have the right to demand and the respective institution or dependency shall be obligated to transfer the amount of those contributions (worker, employer and state) by means of an actuarial liquidation*”. It considers that the principles of sole state employer (principio de patrono único del Estado), equality, reasonableness and proportionality are infringed upon, as well as the fundamental right to social security and to retirement. It alleges that, prior to the reform made to the Judicial Branch Pension and Retirement Regime, by Law No. 9544, only five years of service in the Judicial Branch were required; however, now twenty years of service are required, which was introduced arbitrarily, without a technical basis or reasoning to support it.

In which case, the first thing that must be indicated is that this Chamber has pointed out, in repeated jurisprudence, that the existence of diverse pension regimes –including, specifically, the Judicial Branch pension and retirement regime– is not unconstitutional, with “*its special regulations –in pursuit of guaranteeing the very existence of the regime, as well as its own administration–*” (voto No. 2020-02841 of 9:40 a.m. on February 12, 2020) and with its “*own legal rules and criteria for the granting of the constitutional right to retirement and to a pension*” (voto No. 2084-96 of 2:30 p.m. on May 7, 1996). Criterion reiterated, recently, in voto No. 2021-011957 of 5:00 p.m. on May 25, 2021, in which the constitutional validity of the existence of an exclusive regime for Judicial Branch workers was confirmed, as a special, independent and different regime from the basic one, with its own eligibility requirements in order to guarantee its solvency and functioning. Which does not imply an infringement of the principle of equality. It was resolved, to that effect, that:

"***XXXI.-** **Magistrate Hernández López continues drafting.** This Chamber recalls that the content of the principle of equality established in article 33 of the Political Constitution means that it is prohibited to make differences between two or more persons who are in the same legal situation or in identical conditions, without equal treatment being claimable when the conditions or circumstances are unequal, according in principle, equal treatment to equal situations and making possible different treatment for different situations and personal categories. It has also been indicated that the requirement of equality does not delegitimize differentiated treatment, but to determine if a distinction is really justified, one must analyze whether the reason producing it is reasonable, that is, whether, considering the particular circumstances of the case, diverse treatment is justified (see in this sense judgment No. **5061-94** of 5:34 p.m. on September 6, 1994). Hence, equal treatment should not be given in all cases disregarding possible differentiating elements of legal relevance that may exist; or which is the same, not every inequality necessarily constitutes discrimination. Equality is only harmed when an inequality is devoid of objective and reasonable justification, which requires an assessment of its purpose and its effects, in such a way that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality (see judgment No. 1770-94 of 9:18 a.m. on April 15, 1994).

*Based on what has been said, in the Chamber's opinion, the appellants are not correct regarding this claim, first because there are no evidentiary elements that the legislator's intention was aimed at homogenizing the Judicial Branch Retirement and Pension Regime with the Disability, Old Age and Death Regime of the CCSS, which is totally different in nature, number of contributors, employer and worker contributions, beneficiaries, etc., and because—even if that were true—the final result of the legislator is clear regarding its will that an exclusive regime exist for Judicial Branch workers, which is consistent with the inclination, emerging from the plaintiffs, to maintain their regime in force and protect it, as well as with the vocation of the superior authorities of the Judicial Branch and of IICE's own technical studies, to promote the necessary conditions so that the Judicial Branch Retirement and Pension Regime continues to function and is robust as well as solvent. Now, it is clear to this Court that this decision to maintain a special, independent and different retirement regime from the basic one entails an associated cost and gives rise to consequences that must be assumed by its affiliates, which, by the simple fact of being different, do not necessarily imply discrimination, a violation of the principle of equality or of the principle of unity of social security.*” From this perspective, the establishment of different contribution amounts and burdens for the regimes, obligations or not to continue contributing after acquiring the right to retirement, and diverse conditions for granting the right to a person, is the result of the need to take into account the particularities and plurality of factors related to working conditions and the configuration of the group of participants in the fund (or the disparity in employer contributions), as well as the benefits intended to be obtained in retirement, or in response to social and economic policies that may intervene at a given moment. On this point, the Chamber considers that, if the primary purpose of the constituent was to maintain social insurance to strengthen social security, there is no reason to question the existence of a plurality of regimes, provided that, as the Attorney General's Office indicated, criteria of equality are met regarding state contributions. Thus, it is constitutionally acceptable that there be a difference between the pension regime of the Caja Costarricense del Seguro Social and that of the Judicial Branch, because their enactment responds to different needs and conditions that make a simple comparison in terms of reductions, worker contributions, and benefit profile improper, without also weighing the differences in the number of contributors, caps, coverage of acquired rights, and other conditions that make them different. (...)." Regarding specifically the substantive objection of the petitioner, as to the requirement of a minimum of twenty years of service in the Judicial Branch to be eligible for early retirement, as provided in article 224 bis of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), it should be noted that this Court has already ruled on the constitutionality of that normative provision, in the aforementioned judgment No. 2021-011957. As relevant, this Chamber, by majority, resolved that:

“**XXV.- Justice Hernández López writes. On the reasonableness and proportionality of the eligibility requirements and the benefits established in Chapter I “Benefits”, according to the amendment enacted by Law No. 9544.-** To explain their claim regarding the alleged violation of the principles of reasonableness and proportionality arising from the issuance of the questioned Law No. 9544, some of the petitioners point out that the eligibility conditions and retirement benefits do not align with the technical studies that were provided to the legislative file, while another group acknowledges that the Legislature was supported by technical studies, but dismissed more suitable options, thereby affecting the reasonableness of its decision.

In this regard, we have that the “benefits” chapter of Law 9544 incorporates the modification of the requirements under which judicial employees can obtain the right to retirement and its economic amount, as provided in article 224 of that legal text:

“**Article 224-** Judicial employees with twenty or more years of service in the Judicial Branch may apply for an ordinary retirement equal to eighty-two percent (82%) of the average of the last twenty years of ordinary monthly salaries earned in their working life, updated according to the consumer price index (CPI), defined by the National Institute of Statistics and Census (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 an early retirement, in the following terms:

“**Article 224 bis-** Employees with twenty or more years of service in the Judicial Branch may apply for an early retirement if the age or the number of years of service cited in the preceding article is not met. This shall be calculated as follows:

• a)If retirement occurs upon completing thirty-five or more years of service, but without having reached sixty-five years of age, the retirement shall be calculated in proportion to the employee's age:
• 1)Women must have reached at least sixty years of age and men at least sixty-two years of age.
• 2)The calculation shall be made by multiplying the pension obtained pursuant to the provisions of article 224 for the calculation of ordinary retirement, by the employee's age, and the product shall be divided by sixty-five; the result of this operation shall constitute the amount of the early retirement.
• b)If retirement occurs upon the employee reaching sixty-five or more years of age, but before completing thirty-five years of service, the retirement shall be granted in proportion to the years worked, provided that the number of years served is not less than twenty. To determine it, the amount of the ordinary retirement, indicated in article 224, shall be multiplied by the number of years served and the product shall be divided by thirty-five; the result shall be the amount of the early retirement”.

The contrast between the current law and the previous one, on the subjects addressed by the articles cited above, yields the following:

**a)** Regarding age, with the new (challenged) text, the age for **ordinary** retirement is, at a minimum, 65 years. In the text of the repealed norm, it was required to have reached at least 62 years of age (repealed article 224), which shows an increase of 3 years in the minimum retirement age.

**b)** Regarding the number of years of service, the new (challenged) text establishes the obligation to have at least 35 years of service. In contrast, the repealed norm required having worked at least 30 years in "public administration" (repealed article 224). The general requirement of years of service was increased by 5 years, as can be seen.

**c)** To this, it must be added that it is now required to demonstrate 20 or more years of service worked within the Judicial Branch. In the previous text, it was required to have worked for the Judicial Branch for the last 10 years before retirement (repealed article 231).

**d)** Regarding the amount of the retirement benefit. In the new (challenged) norm, the gross amount of ordinary retirement is defined as eighty-two percent (82%) of the average salary of the last 20 years of ordinary monthly salaries earned in their working life. In contrast, in the previous legal text, the gross amount of ordinary retirement was defined as one hundred percent (100%) of the average of the last 24 best ordinary monthly salaries earned in the service of the Judicial Branch.

On the other hand, with respect to early retirement, the changes are summarized as follows:

**a)** Regarding retirement for time of service: the (challenged) text allows obtaining early retirement without the required age (65 years) provided that the years of service (35 years) have been completed. However, a minimum age is set for this type of retirement based on years of service, which differs by sex, and which shall be 62 years for men and 60 years for women. In the previous legislation, the possibility of early retirement also existed upon completing the required years of service (30 years), without requiring a minimum age, and without distinction between men and women (repealed article 225).

**b)** Regarding retirement upon reaching the age. The current (challenged) text also allows early retirement by age, that is, without the required time of service (35 years) but provided that the age established for ordinary retirement (65 years) has been met and—in addition—there is a minimum service time of twenty years worked within the Judicial Branch. The previous legislation also contemplated this possibility of retirement by age, for which the condition of being at least 60 years old and having at least ten years of service had to be met (repealed art 225).

**c)** Regarding the amount of the early retirement benefit. For both cases of early retirement (by years of service or by age), the form of calculating the reference amount relies on the new form of calculating the gross retirement amount set out in article 224 of the challenged law.

In the third place, it is observed that the pensions of those who become permanently disabled have not been affected in their particular structure; rather, the disagreement is linked to the variation undergone by the challenged article 224, which establishes the mechanism for determining the gross amount of the ordinary pension, on which—in turn—the pension that may correspond to persons affected by the contingency will depend.

The petitioners warn that it is precisely with this reformulation of requirements and benefits established in the challenged articles 224 and 224 bis that the substantive problems begin, which, in their view, Law 9544 contains, since the retirement age and the number of years the official must work are increased, while the sum they will receive as retirement is reduced relative to the salary they were earning upon retiring, to which must be added the application of all legally established deductions, which means the amount to be received is, in many cases, less than 55 percent of the last salary received, which is clearly ruinous. Thus, they point to an injury to the principles of reasonableness and proportionality, since—for some of them—the Legislative Assembly departed from the technical criteria and chose to adopt a system lacking foundation or support, while another group affirms that, although technical criteria were considered, less harmful and more reasonable and proportionate options raised during the course of the legislative process were set aside.

**XXVI.- Justice Hernández López continues writing.** The informants called to this process indicated the following regarding the injury to the proportionality and reasonableness of the new design. The Attorney General's Office (Procuraduría General de la República) states in its report that the need to make the disputed changes to the Judicial Branch's pension regime derives directly from the actuarial studies on which said reform was based. In other words, increasing the retirement age and the number of years of contribution and reducing the economic benefits for retirees was not a decision adopted at the whim of the legislator, but is the result of the regime's situation, which was reflected in the mentioned actuarial studies, concluding that the changes made have the necessary technical support to affirm their conformity with the Law of the Constitution. It notes that the issue was already the subject of specific analysis by the Chamber in the legislative constitutional consultation that gave rise to judgment number **2018-5758**, widely mentioned. It finally explains on this point that the new text of article 236 of the Organic Law of the Judicial Branch (LOPJ) expressly provides that the deductions may not exceed 55 percent of the gross amount of the fixed retirement or pension; all of this, added to the existence of technical studies on which action was taken, means the modifications do not violate the principles of reasonableness and proportionality.

In the report rendered by the President of the Legislative Assembly, it was indicated: “It must be understood, then, that the law under analysis does not respond to arbitrary or capricious criteria—a situation already analyzed by the Honorable Constitutional Chamber—and therefore does not imply any violation of the constitutional principles of reasonableness and proportionality,” referring to the fact that the Special Commission that reviewed the bill took the referred technical study into account, as well as the participation of the Technical Committee created by the Judicial Branch, and also referring to the fact that in judgment number 2018-005758 of 3:40 p.m. on April 12, 2018, the Chamber had noted that such technical studies were available.

The Vice President of the Supreme Court of Justice in her report notes that in relation to the percentage established in article 224 of Law No. 9544, it is necessary to take into account that judicial employees, at the moment of retiring, continue contributing to the Judicial Branch Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial) with a worker contribution of 13% according to article 236 of that same normative body, unlike other retirement and pension regimes; therefore, the amount of their retirement would be diminished, and additional deductions must be added, such as the deduction for administrative expenses of the Administrative Board of the Judicial Branch Retirement and Pension Fund (Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial), which establishes a commission for administrative expenses of five per thousand on the salaries earned by judicial employees, as well as on the retirements and pensions covered by the fund. This could be seen as confiscatory (article 40 of the Constitution) or in violation of the principle of non-retroactivity of the law (article 34 of the Political Constitution), given that there are acquired and consolidated patrimonial rights under a previous law. The Vice President of the Judicial Branch also mentions that according to the report approved by the Full Court in session number 26-17 of August 7, 2017, article XXX, “(…) this Court has been respectful, and will be, of the technical studies issued to seek the sustainability of the Fund; however, it cannot be ignored that fundamental rights are at stake, and that is why the reform also merits a study adhering to actuarial technique but also with a human rights perspective.

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

“(a) To guarantee workers a life without want in old age, the pension should cover essential needs. It is therefore appropriate that the pension guaranteed to any pensioner who has completed a qualifying period be fixed taking due account of the cost of living.

(b) In schemes with contributions proportional to salaries, insured persons having paid contributions corresponding to the average duration of active working life should receive a pension corresponding to their social situation during the period of professional activity. For this purpose, the pension guaranteed to insured persons having credited thirty effective years of contribution should not be less than half of the salary insured since entry into the insurance or during a specified period immediately preceding the settlement of the pension (Our emphasis).

It is clear then that both Convention No. 102 and Recommendation No. 43 of the International Labour Organization are consistent in establishing that retirement and pension must satisfy the essential needs of persons in their old age, and that 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 that the working person had during their active professional life must be respected.

We do not ignore the need to make reforms to the Retirement and Pension Fund in order to seek sustainability, but these must be clothed in suitability and reasonableness, as indicated by the Constitutional Chamber in vote No. 2010-1625 of 9:30 a.m. on January 27, 2010, when declaring unconstitutional the cap on pensions established in article 234 of the Organic Law of the Judicial Branch. The foregoing is consistent with what was stated by the Inter-American Commission on Human Rights when, in analyzing the admissibility of the case “Admissibility and Merits Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras v. Peru” (1), it outlined that the mentioned article 26 does not exclude the possibility of a State imposing certain restrictions on the exercise of the rights incorporated in that norm, provided that a joint analysis of the individual impact on the right (in this case, to retirement and pension) has been made in relation to the collective implications of the measure”.

**XXVII.- Justice Araya García writes.** This Court considers that, as the Attorney General's Office and the Presidency of the Legislative Assembly point out, both the question of the absence of technical criteria to support the decisions of the reform enacted in the Judicial Branch Retirement and Pension Regime and the fact that a more favorable option for the fund's participants was disregarded regarding the eligibility requirements and the form of calculating retirement benefits were already addressed when this Court had the opportunity to analyze the legislative texts with the wording that finally became the law of the republic. In judgment 2018-5758, which answered the cited constitutional consultation, the following was said on that aspect:

“**XIX.- Concerning the lack of studies to determine the pension calculation.** The consulting parties consider that article 224 of the bill is contrary to numeral 73 of the Political Constitution. They argue that the questioned article provides that the pension calculation shall be obtained from the average of the salaries of the last 20 years earned by the working person, without having technical studies regarding what the real impact on the fund's reserves will be. They add that the study that served as the basis was that issued by the University of Costa Rica, but in it, the limit for calculating the pension was set at the last 120 salaries (10 years), so they consider that the Special Commission overstepped in its assessments, given that, without technical basis, it varied the calculation criterion from the last 120 salaries to one of 240 salaries. They also consider it illegitimate to take as absolute an annual percentage of returns of 3% on the Fund's investments, without taking into account that the real returns were higher. Regarding the first of these claims, the Chamber considers, after analyzing the record, that the alleged defect is dismissed, because on page 2942 of the legislative file is official letter number 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 in article 224 of the bill, mentioning, on this matter, the following:

“a. Reference salary for calculating the retirement or pension amount In article 224 to be amended, the Majority Opinion calculates the reference salary (SR) as the average of the last 20 years (SR20), updated 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 of the last 20 years, adjusted for inflation, is 4.8% lower than the average salary of the last 10 years for new pensioners, given the merit scale in effect in the Judicial Branch. This difference between the Majority Opinion and the IICE frameworks, taken independently of the other components of the proposed regulation, acts in favor of the actuarial solvency of the retirement and pension fund, an aspect to which we will refer in the following paragraph.

b.

Worker contribution and benefit of the affiliates (…)

Now, the Majority Opinion proposes a benefit of 85% of a reference salary (salario de referencia) of 240 months (instead of 120 months), with a worker contribution that, as was commented, consists of a differentiated scale between 11% and 15%. Conceptual and operational problems associated with the application of that scale have already been pointed out, which, being left to the discretion of the Administrative Board (Junta Administradora) of the Judicial Branch (Poder Judicial) itself, also runs the risk of being set in practice closer to 11% than to 15%, which, combined with a benefit of 85% of the reference salary, negatively affects the actuarial solvency of the fund.

In this regard, the IICE team considers it more adequate and convenient to establish a single, clearly defined worker contribution with a reasonable link between this contribution and the benefit received by the fund's affiliates. In this case, the team considers that a single contribution of 13% (applied to active workers, retirees, and pensioners) would be compatible with a benefit of 82% calculated on the reference salary of 240 months. It is important to highlight that the Majority Opinion sets the employer contribution at 14.36% (Article 236, subsection 2), unlinking it from proportional increases in the worker contribution, an aspect that adheres to what was recommended by the IICE.” In that sense, upon verifying that, contrary to what is asserted in the initial brief, a technical criterion does exist that endorses 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.

On the other hand, regarding the second of the allegations of the consulting parties, the Chamber considers that, at its core, what is being questioned is whether the parameters that served as the basis for setting the requirements to obtain the pension right were suitable or not, a point that does not imply that the rule is unconstitutional, as the consulting parties believe; hence, it is considered that the defect is non-existent.” Similarly, it had been previously stated in the same judgment:

**“XV.- On the alleged violation of the principle of judicial independence.** (…) The Chamber considers that the foregoing complies with what is established by international doctrine, in the sense that it is the public authorities who bear the burden of proving that the cuts are justified in light of the set of socio-economic rights, and that if an administration has the need to adopt regressive measures for the right to a pension and retirement, it must have a technical study regarding the effects that these may have on the rights of those affected and the regime, as well as that no less burdensome measures could have been taken, a situation that is met in this case, taking into account the analyses carried out by the University of Costa Rica (Universidad de Costa Rica) in the actuarial studies of the Judicial Branch's Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones del Poder Judicial). (…) Thus, in attention to the foregoing, the Chamber does not consider that the alleged defect is present.” And it added a little further on:

**“XVII.- On the changes in the requirements to obtain the right to a pension.** The consulting parties consider that Article 224 of the bill harms the principles of proportionality and reasonableness because the retirement age and the number of years the employee must work are increased, but the percentage of money they will receive as a pension relative to the salary they were earning is reduced. Likewise, they question Transitory Provision VI of the bill, which provides that only those persons who are within 18 months of meeting the requirements to acquire the pension right may do so under the provisions established by Law No. 7333 (Ley N° 7333). The questioned rules provide the following: (…) It should be noted that the right to retirement is not unrestricted, as it may be subject to certain limitations, provided they are established by formal law, are reasonable, and do not affect its essential content. Thus, the Chamber has held that the legislator has the authority to establish restrictions on the right to retirement when it can be proven that certain situations exist that put the sustainability of a regime at risk and, therefore, threaten the nature of the system as such. On this matter, in vote number 2379-96 at 11:06 on May 17, 1996, the following was established:

(…)

Now, from the foregoing, it clearly follows that the right to retirement can be subject to limitations, just like any other fundamental right. The foregoing entails that a person does not have a right to retire under specific conditions, as these may be varied when necessary to guarantee the existence of a specific pension and retirement regime, since otherwise, conditions could be created that make the system financially unsustainable, which would finally lead to the right to retirement being severely affected, or its exercise not being entirely possible, given the lack of funds preventing the payment of the retirement amount to the interested party. Given this panorama, the Chamber considers that the questioned rules are not unconstitutional, insofar as their purpose is precisely to guarantee the permanence of the Judicial Branch's Retirement and Pension Regime (Régimen de Jubilaciones y Pensiones del Poder Judicial), for which parameters and requirements were set based on the opinion of experts received by the Special Commission (Comisión Especial) that issued a report on legislative file number 19,922, as well as on studies of a technical nature that confirmed the existence of a problem that could affect the sustainability of the aforementioned Regime, and for which they issued a series of recommendations. In that sense, upon verifying that the variation of requirements provided by numeral 224 and the deadline set by Transitory Provision VI of the bill have as their ultimate goal to guarantee the retirement right of judicial employees, the Chamber dismisses the alleged defect.” (Judgment 2018-5758).

In view of the foregoing and given the lack of novel evidentiary elements provided by the plaintiffs on these aspects, the Court considers it proven, **firstly**, that the unsustainability of the Judicial Branch's Retirement and Pension Fund was a real fact at the time when both the Supreme Court of Justice (Corte Suprema de Justicia) and the Legislative Assembly (Asamblea Legislativa) decided to initiate a process of reforming the institution's retirement regime, supported by a technical assessment that served as technical input to address the financial problems threatening the Fund. **Secondly**, the Chamber reaffirms what was stated in Judgment 2018-5758, regarding the validity and constitutional relevance of the changes made to the eligibility conditions, as well as in determining the benefits payable by the Fund, on the understanding that such adjustments fall within the legitimate constitutional framework of action of the legislator in retirement matters as explained in said text. **Thirdly**, what was stated in Judgment 2018-5758 is also reaffirmed regarding the existence of adequate technical support underpinning the text that ultimately became law of the republic, insofar as the final established parameters were indeed technically endorsed as explained in detail in the recently cited Judgment 2018-5758.

**XXVIII.- Magistrate Araya García continues writing.** Notwithstanding the foregoing, the plaintiffs reiterate the lack of constitutional reasonableness and proportionality of the decision taken and specifically maintain that the technical report offered legislators more favorable options for the economic interests of the fund's participants that left the purpose of the legislation intact, but despite this, that option was not enacted into law, thereby violating the suitability condition that forms part of the constitutional reasonableness standard. On this matter, the Chamber observes that the Judicial Branch formalized Agreement R-CONV-005-2016 with the Institute for Research in Economic Sciences (Instituto de Investigaciones en Ciencias Económicas, IICE) of the University of Costa Rica, so that it would carry out an actuarial study to determine the solvency of the Judicial Branch's Retirement and Pension Fund. Of relevance, clear and compelling evidence emerged from this study regarding the unsustainability of the current configuration of said fund, and for that reason, four proposals for new "regulatory frameworks" (frameworks IICE 1, 2, 3, and 4) were offered as a technical exercise to evaluate different possibilities for rearranging the variables affecting the operation of the pension regime in question. Of these, according to the technical study itself, numbers 1 and 2 do not meet solvency and sustainability characteristics and were included to show how different variable values affected the final result. For that reason, and as the plaintiffs point out, the technical report recommended two possible technically viable combinations to the Assembly: framework IICE 3 and framework IICE 4, for modifying the regime; however, the Chamber does not share the interested parties' conclusion that the foregoing implied for the legislator an exclusive choice between those two alternatives: first, because neither of them aspired to be "the best possible option" but merely presented themselves as viable options for modification; second, because it was clear that they did not exhaust the technically valid and acceptable possibilities of combining eligibility and benefit variables (as ultimately happened, as will be discussed); and third, because choosing either of the two options (IICE 3 OR IICE 4) or constructing a different one necessarily imposed on the legislators a trade-off and balance among the different variables related 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); the method of calculating the reference salary (average of the last 10 years worked); the existence of a maximum retirement payment cap of 10 times the base salary of the Judicial Branch, and a solidarity contribution (contribución solidaria) for those receiving high retirement payments, framework IICE3 proposed, for an ordinary old-age retirement, a retirement payment equivalent to 72.5% of the reference salary, in exchange for a worker contribution (contributions from active workers and retirees) that was lower (on the order of 11%), while IICE4 proposed delivering a retirement payment equivalent to 85% of the reference salary, but in exchange for a higher worker contribution (on the order of 15%). Faced with this state of affairs, the option adopted by the Legislative Assembly is not arbitrary, as it consisted of constructing—with the technical elements provided—an intermediate proposal between frameworks IICE3 and IICE4 originally recommended. That is, on the same common basis of requirements of the cited frameworks, regarding conditions of age and service, the cap on the retirement amount, and the establishment of a solidarity contribution for retirement payments above the latter, the Assembly defined—for the ordinary old-age retirement—a retirement payment of 82% of the reference salary (9 and a half percentage points higher than the 72.5% proposed in framework IICE3, but 3 percentage points lower than the 85% set in framework IICE4). Likewise, the worker contribution percentage was set at 13% (that is, 2 percentage points more than the 11% of framework IICE3, but 2 percentage points less than the 15% established in IICE4). It should be noted that similar considerations can be made in relation to the cases of early pensions (pensiones anticipadas) and disability pensions (pensiones por invalidez). However—and the arguments of several of the appellants seem to focus on this—the Legislative Assembly varied the formula for calculating the reference salary, setting it at the average of the last 240 salaries (20 years worked) compared to the average of the last 120 salaries (10 years) used in frameworks IICE3 and IICE4; this change implied, according to the technical authority itself, a decrease of 4.8% in the average salary that would serve as a reference for setting the retirement payment.

With that picture, it must then be determined whether such a set of actions by the Assembly falls within the terrain of unreasonableness because they are unsuitable, and the conclusion of the majority of the Court is that the alleged defect is non-existent, because it was precisely an intermediate choice between the two recommended frameworks, a choice regarding which it has not been proven that it implied a substantial and relevant worsening of the conditions of the fund's participants, compared to those offered in frameworks IICE3 or IICE4. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being in this file precise and reliable data to affirm that—all conditions considered—a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, but at the same time offering clearly and conclusively greater levels of protection for the fundamental rights at stake. To this must be added the fact that, precisely, the legislator's task consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, in their judgment, best suits the pursued state purpose. That is their task as representatives of the people, and this Chamber must not substitute such competence nor the authority to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Judicial Branch's Retirement and Pension Fund. Finally, it bears repeating that the legislative proposal agreed upon by the Legislative Assembly received the endorsement of the technical entity, which pointed out the technical propriety of that design finally adopted through report IICE-186-2017, which appears at folios 2942 and following of the legislative file, as explained in Judgment 18-5758 of this Chamber, cited supra.

As indicated in Considerando VI of this judgment, the Institute for Research in Economic Sciences (IICE), in official communication IICE-186-2017 cited, refers to the changes made as technically suitable because they act in favor of the solvency of the fund. It particularly points out, regarding the bill approved by majority, that the changes in the calculation of the retirement or pension amount, in the required age, in the special solidarity contribution of 50%, the worker contribution with a differentiated scale, and the early retirement age with gender differences, all act in favor of the actuarial solvency of the fund. Meanwhile, in the case of the minority opinion (folios 2945 and following, same volume), which favored:

- Using a lower reference salary, calculated as the average of the last 10 years adjusted for the CPI. On this point, it is indicated that this calculation method is less favorable for the actuarial solvency of the fund, and its effect must be analyzed in conjunction with other characteristics and parameters such as age for ordinary or service-based retirement, worker contribution, solidarity contribution, and transitory provision. - 85% of the reference salary with a worker contribution of 11%. In this regard, it points out that a worker contribution of 11% should be associated with a retirement or pension that does not exceed 72.5% of the reference salary calculated over the last 120 salaries adjusted for the CPI in order to maintain actuarial solvency. - An age of 62 for men and 60 for women is proposed, and no minimum age is established for early or service-based retirement. In this regard, it is pointed out that, in this scenario, even with a contribution of 15% on salaries, retirement, and pensions, the fund is insolvent if a benefit of 85% of the reference salary is maintained. It adds that "the analyses conducted by the IICE reveal that the proposal arising from the Minority Opinion does not pass a rigorous test of actuarial solvency." Specifically, it states:

“ i. If the worker contribution is maintained at 11% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 3 trillion colones, and the actuarial insolvency would be greater than 30% of the promises.

ii. If the worker contribution is increased to 15% and under the other conditions of the Minority Opinion, then the actuarial deficit would be greater than 1.7 trillion colones, while the actuarial insolvency would be greater than 17% of the promises.

- Solidarity contribution of 20% of the excess over the defined maximum cap for retirement and pensions, set at 10 base salaries. This percentage may be increased to 50% "if so recommended by an actuarial study and approved by the Fund's Administrative Board (Junta Administrativa del Fondo)." Regarding this proposal, the IICE points out that by reducing the contribution to 20%, part of the equalizing effect of said contribution is lost. - Transitory Provision V. Transitory Provision V proposed by the Minority Opinion extends the benefits of the current law for an additional 10 years beyond the 18 months recognized as a vested right; although the benefit is established as 100% of the reference salary of 120 salaries adjusted for the CPI, the transitory provision does not contemplate gradualism, so its effect on solvency approximates that of the transitory provision of the Full Court (Corte Plena) bill, analyzed in Product 4 of the actuarial study. Given that it involves a longer period and less gradualism, it is less favorable relative to Transitory Provision IV of the Majority Opinion regarding its impact on the actuarial solvency of the fund. - Employer contribution. It proposes that the employer contribution of the Judicial Branch (currently 14.36% of the salaries and wages of affiliates) "shall be adjusted proportionally according to the increases that the Administrative Board agrees upon as the contribution of judicial employees….". "The IICE team considers the previous clause entirely inconvenient." "The position is that the solvency guarantee should not rest on the state contribution, thereby avoiding a further deterioration of the country's already delicate fiscal situation." - Credit operations: It was proposed to authorize the Administrative Board to conduct credit operations with the Fund's income directly or through a financial institution. On this topic, the IICE team stated: “…the eventual participation of the fund in credit operations must be analyzed with extreme care. In particular, it is necessary to consider that credit operations require administrative infrastructure, specialized personnel, and experience, which entail costs and also risks that must be adequately assessed.” After these observations and the legislative discussion, modifications were made to the bill, in most cases, to adapt them to the opinion issued by the IICE, and others to incorporate positions given during the legislative discussion.

The plaintiffs claim that there cannot be regressive measures concerning economic, social, and cultural rights, among which pension systems would be included. However, as the Committee on Social Rights of the Council of Europe and other Constitutional Courts, such as that of Colombia, have pointed out, it is possible to adopt regressive measures in the field of economic, social, and cultural rights (DESC) when they pursue a legitimate and relevant goal, such as the improvement of another right or the general level of coverage of services that guarantee its effectiveness, or when they serve to avoid more burdensome measures and are technically supported. Thus, the constitutional conformity of measures cutting or modifying conditions regarding pensions requires that, prior to the determination and as an inescapable part of its justification, there must be technical support regarding the effects of the measures, and the affected parties must have been heard because it concerns the income they are currently receiving, as a means of subsistence and on which a large part of their life project and their right to a dignified old age is based.

In accordance with Inter-American doctrine and jurisprudence, in cases of regressivity of DESC, it is necessary to verify the legitimacy of the purpose that the rule seeks to achieve, whether the restriction of rights is "suitable" or "adequate," subsequently whether it is "necessary" or "indispensable," and, finally, whether it is "proportionate" in the strict sense or "balanced." The purpose that the rule seeks to achieve must not be prohibited by the Constitution and must also be a necessary and constitutionally important purpose. The rule in question "(…) cannot have just any purpose, but must be aimed at protecting values that have express constitutional support, either because the Charter considers them objective values of the legal system (…). This means that these measures must not only be admissible but must seek the realization of constitutionally important objectives." Likewise, it must be verified whether the means provided in the norm to achieve the pursued end are adequate or not to effectively achieve that end, or, in other words, “(…) the protective effect of the measure in relation to the interest or value one wishes to favor must appear clearly demonstrated.” There must not exist other means to achieve the pursued end with the same efficacy that are less onerous in terms of sacrificing constitutional rights susceptible to limitation in each case, or, in other words, “(…) that there is no other means that could lead to the end and that sacrifices to a lesser extent the constitutional principles affected by the use of those means.” What is sought in this step is to verify that the reduction or deterioration in the legal patrimony (patrimonio jurídico) of persons, that is, the impact on constitutional principles and rights, is not greater than the benefit that impact is capable of yielding. In the words of the Inter-American Court, it must be verified if “(…) the restriction of the affected rights is equivalent to the benefits that the provision generates.

If the harm produced upon the legal patrimony (patrimonio jurídico) of citizens is greater than the constitutional benefit that the norm is capable of achieving, then it is disproportionate (…)”.

The Inter-American Court has also held that in economic matters and more specifically in matters related to budgetary issues and resource appropriation, the legislator has broad freedom of configuration, which is why, in these cases, any eventual proportionality judgments made must have a low intensity, which is precisely the category of rights under analysis.

As is proven from the legislative file, the pension system of the Judicial Branch (Poder Judicial) had an actuarial deficit of more than 5 billion million at the time of the legislative discussion, which endangered the patrimony of all collective and passive members that make up the retirement regime (régimen previsional) of the Employees and Officials of the Judicial Branch (Poder Judicial) and public finances, since the State would have to assume that deficit budgetarily at a precarious moment for public finances. That is to say, there not only existed a legitimate need to intervene, but a legal obligation to protect the equilibrium of the fund, upon which thousands of persons and families depend, as well as the adequate safeguarding of public finances.

By way of example, what was indicated by Dr. Max Soto Jiménez of the Institute of Economic Research of the University of Costa Rica (folio 1321) and part of his team, he informs the Commission that within the findings, the Institute of Research in Economic Sciences of the University of Costa Rica (hereinafter IICE) found that the actuarial deficit is 9.7 times the amount of the accumulated reserves and is 36% of the present value of the entire liability of the regime and that the substitute text being discussed in the Commission is insufficient to guarantee the sustainability of the pension regime (régimen de pensiones) of the Judicial Branch (Poder Judicial) (see folio 1352 volume 7 legislative file).

Likewise (folios 2274 and 2275 volume 10) the intervention of Dr. José Antonio Cordero Peña of the IICE is recorded, in the same sense regarding the seriousness of the fund's situation and the need to take measures:

“In reality it is evident that the fund is currently insolvent… If we continue as things are at the moment, what will happen is that the people who retire in the coming years will eat up the fund's resources from future generations, and see how curious, since we are all so long-lived, those who will finance them when they are ninety years old will also eat up the funds, when they are ninety, ninety-five years old, someone will have to come and tell them, look you know what, your pension will no longer be feasible, similar to what happened to some members of private pension funds in Chile.” That situation was recognized not only by the actuarial report from the University of Costa Rica, but years before by the cited Melinsky report, and by the authorities of the Judicial Branch (Poder Judicial) themselves during the appearances, as well as the unions of the Judicial Branch (Poder Judicial) themselves that participated during the legislative process and also formed part of the technical teams of the Judicial Branch (Poder Judicial) that participated in the elaboration of the 6 products of the IICE and endorsed the recommendations of the studies, now challenged in this action.

In effect, as indicated in Considering VI (Considerando VI) of this judgment, in the Agreement R-CONV-005-2016 signed between the Judicial Branch (Poder Judicial) and the University of Costa Rica, it is recorded that the unions or labor unions of the Judicial Branch (Poder Judicial) would have a representative on the Executive Team (folio 689 and 1154). In an appearance before the Commission, Licenciado Hernández Solano stated:

“For the first time in an actuarial study, representation is given to the workers, on this occasion with the UCR study, for the first time.

There is a technical committee within the Judicial Branch (Poder Judicial) and a technical committee within the UCR, they are the ones who analyze all parts of the five phases that the UCR-Judicial Branch (Poder Judicial) agreement has. The Executive Committee within the Judicial Branch (Poder Judicial) is the one that endorses each phase, tests it, consults with the Technical Committee, and ultimately we give approval.” (the emphasis is not from the original) “On behalf of the institution, there is an executive team… The Head of the Financial Accounting Department of the unions is part of this technical team. Why does the institution make that decision? Well, because experience had shown us that in prior processes, the unions' questions about the study would come at the end of the study, and then we would enter into an internal conflict that was not healthy. In this way, we considered it important to incorporate the union representative as part of this executive team, and they participate actively and review the products, as part of the rest of the team that is formed.” (folio 1325 volume 6 of the legislative file) There, the conditions of each product were agreed upon, and the agreement was communicated to the Special Legislative Commission in charge of reviewing and reporting on the draft Law “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222” (folio 775 folio 4 legislative file) “In the process, observations were made; I even want to tell you that the Judicial Audit also participated in this review process, and there were observations by Mr. Arnoldo, at the time union representative, by the Audit Office; they were forwarded to the IICE, they gave us a response, in some cases they corrected the products because this process occurs in a preliminary version for discussion or evaluation, and then, satisfied with that correction, approval and endorsement were given” (folio 2335 volume 10 legislative file) (the emphasis is not from the original) At folios 843 of the legislative file, the prior actuarial study by Melinsky, Pellegrinelli y Asociados S.A. is provided, which at folio 939 indicates among its recommendations that for the year 2026, a critical year is projected with a significant actuarial deficit of 50% of the constitutive capitals of the benefits in course. It indicates that “substantive and effective measures are required aimed at reducing the actuarial deficit and substantively postponing the critical year.” It adds that in order to take adjustment measures, one must keep in mind that it is an ongoing retirement regime (régimen previsional) where the following concepts must be made compatible:

- Benefits in course - Time of service rendered by active servers - Actuarial (required mathematical reserves, operating deficit, actuarial deficit, critical year, required average equilibrium premium) - Legal - Contributive capacity of the members - Budgetary capacities of the Judicial Branch (Poder Judicial) - Budgetary capacities of the Executive Branch (Poder Ejecutivo) It adds: “all legal analysis must take into account that the adjustments indicated are necessary for the purpose of improving the actuarial deficit situation and critical year, which implies an Institutional Risk that endangers the patrimony of all collective and passive members that make up the retirement regime (régimen previsional) of the Employees and Officials of the Judicial Branch (Poder Judicial). (the emphasis is not from the original) “That is to say, the basic legal element to take into account is that the individual rights recognized by the current law must be considered rights in expectation, subject to the collective right regarding the feasibility of benefits for the mass of members, not only regarding their incidence in the sphere of the Judicial Branch (Poder Judicial) but due to their potential effect on the National Budget.” In the appearance of the Executive Director of the Judicial Branch (Poder Judicial) (volume 1322 and following, volume 6 of the legislative file), she indicates that since the last actuarial study by Melinsky, the situation of the actuarial deficit went from 2.48 million million “to a scenario around 5 billion million.” In response to the question from Deputy Piszk Feinzilber: “Would I understand correctly, if I interpret that the situation is worse than we had imagined?”, the Executive Director's response is: “Yes. Four years have passed from 2012 to now. No decisions have been made, and the situation has worsened.” (folios 1338 and 1339 volume 6 of the legislative file) Deputy Piszk Feinzilber adds:

“What I want is for it to remain very clear here, that our concern is based neither on a whim” … but rather on the fact that it is very clear that as long as no decisions are made, the situation will continue to worsen.” “I know, and we had even committed to waiting until there was a complete actuarial study to make decisions of a—I don't know if the correct word is numerical or not numerical—nature, regarding contributions, but well, I believe it is very clear that there is concern on our part, that the Court must be aware that here, well, it is all Costa Ricans who will have to pay, if this thing continues to drag on, and from that point of view, we, evidently as legislators, who have to make a decision…” (folio 1343 same volume) In the same sense, Deputy Guerrero indicated: “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 regime. A regime that will end up in the national budget of the Republic, if soundness is desired, a regime, moreover, that does not guarantee the pension expectation of the people who are currently contributing or will have to start contributing double; the same as the employer and the same as the State. That is, it goes to the central budget…” (folio 1754 volume 8 legislative file) On the other hand, as indicated supra, the majority of the Chamber (Sala) considers that, given the proven public need and legitimacy of intervention by the authorities, the means provided in the challenged regulations to achieve the pursued end are adequate to effectively achieve that end. As indicated supra, the Institute of Research in Economic Sciences (IICE), in cited official communication IICE-186-2017, refers to the changes made as technically suitable because they act in favor of the fund's solvency. As explained, the legislator adopted an intermediate choice between the two recommended frameworks, a choice regarding which it has not been demonstrated that it implied a substantial and relevant deterioration in the conditions of the fund's participants, compared to those offered in the IICE3 or IICE4 frameworks. This is because, as explained, what occurred was an exchange of some advantages for others, always within the limits set in the frameworks proposed by the technical entity, and without there being other technical studies or expert reports in this file of the same level or equivalent that, with precise and reliable data, allow affirming that—having assessed all the conditions and not just the chosen ones—a technical option was available to the legislator that would generate the same sustainability guarantees sought for the fund, while offering at the same time clearly and convincingly higher levels of protection for the fundamental rights at stake. Precisely, the task of the legislator consists of weighing the different interests and needs at stake and constructing—within the space offered by the technical framework, but also based on reasons of convenience and opportunity—the normative structure that, according to their criterion, turns out to be the one best adapted to the pursued state purpose. That is their task as representatives of the people, and this Chamber (Sala) must not substitute such competence nor the power to elaborate, with the technical elements provided, a solution to the real problem presented by the financial situation of the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Judicial Branch (Poder Judicial). As the Inter-American Court has rightly pointed out, in economic and budgetary matters or resource appropriation, the legislator has broad freedom of configuration, which is why in these cases, any eventual proportionality judgments made must have a low intensity, which is precisely the category of rights under analysis, where a balance must be sought between individual and collective rights to overcome the existing danger of affecting the patrimony of all collective members that make up the retirement regime (régimen previsional) of the Employees and Officials of the Judicial Branch (Poder Judicial), putting at risk the sustainability of current and future beneficiaries and potentially of the State's finances, which would have to assume the present and future pensioners and retirees if the regime could not be balanced.

The plaintiffs provide a series of examples of hypothetical impacts on how disproportionate the measures are for various sectors, but they do not provide an actuarial study that permits refuting the one existing in the legislative file, which does take into account all the variables at play (not just the selected ones), which must be assessed integrally. Likewise, with the actions filed, they seek to return to the scenario prior to the reform, a scenario technically expressly discarded by the IICE in its various studies, and which does have the capacity to affect or endanger the sustainability of the pension regime (régimen de pensiones) of the Judicial Branch (Poder Judicial), as was proven with the Melinsky study and that of the University of Costa Rica. Likewise, the supplementary evidentiary measure (prueba para mejor resolver) requested by this Chamber (Sala) from the Administrative Board of the Pension Fund of the Judicial Branch (Junta Administradora del Fondo de Pensiones del Poder Judicial) (see judicial file) demonstrates that the measures adopted by the legislator have been suitable for restoring solvency to the Fund, which has had a substantial recovery in the years of validity of the challenged regulations.

In conclusion, in the judgment of the majority of this Chamber (Sala), the Legislative Assembly (Asamblea Legislativa) did not infringe the constitutional principles of reasonableness and proportionality by taking elements from the IICE3 and IICE4 normative frameworks and from the appearances of the authorities of SUPEN and the Ministry of Finance (Ministerio de Hacienda), and constructing with them a normative framework to adjust all the needs at play and fulfill the purpose of remedying the recognized problems suffered by the Retirement and Pension Fund (Fondo de Jubilaciones y Pensiones) of the Judicial Branch (Poder Judicial), and thus avoid more serious harm to the interests of the union members and the public interest, such that on that point the action must be dismissed. Even at the time this judgment was pronounced, it has been verified that the actuarial deficit of the regime has been reduced significantly, demonstrating that the measures adopted were necessary, proportional, and suitable.” Subsequently, in that same vote, the following was indicated:

“**XXXII.-** Drawn up by Magistrate Araya García. **Regarding the impact on the fundamental right to retirement derived from the changes in the eligibility conditions in Chapter I “Prestaciones” of Law 9544 (Ley 9544) for Judicial Branch (Poder Judicial) workers to be able to retire.** On this point, the plaintiffs argue that the fundamental right to retirement is being made illusory by having increased the retirement age, especially now that a minimum of 20 years of service in the Judicial Branch (Poder Judicial) is required to be able to retire under the Judicial Branch (Poder Judicial) regime, since in many cases judicial servants would be forced to work beyond the age of 65 to be able to become eligible for a retirement.

Additionally, they explain that with the reform, it is not merely that the time of service in the Judicial Branch has been extended by 5 years—from 30 to 35 years—but that particular situations are being generated which they consider harmful to fundamental rights: a) for example, a person who began working in the Judicial Branch at age 20, in order to retire in accordance with the requirements established in Law 9544, must now work 45 years, far exceeding the 30 years of contributions indicated by ILO Conventions 102 and 128; b) because it is now required to have at least 20 years of service in the Judicial Branch but also to complete a total of 35 years of work in the public sector, any person who begins working in the Judicial Branch after age 46 could only retire after exceeding age 65; c) in the case of a Judicial Branch worker who dies before completing those 20 years of minimum service in that institution, the beneficiaries could not opt for an orphan's or survivor's pension because that requirement is not met; d) new rules for obtaining retirement cannot be imposed equally on a person who is 5 or 10 years from retiring as on a person who is just starting work or who is 30 years from retiring at the time a reform comes into effect; e) the Law prior to 9544 established that upon completing 30 years of service—which implies an amount exceeding the 300 contributions required by the IVM regime of the Costa Rican Social Security Fund—the person could request early retirement regardless of age, and thus 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 retirement—now greatly reduced—since early retirement appears not to be an option because it considerably reduces income; e) in the case of a Judicial Police officer, a Criminal Judge, a Prosecutor, a Pathologist, or a Social Worker—just to cite a few examples—who could previously retire upon reaching age 55 after 30 years of service, they must now be forced to work ten more years to reach age 65, despite the enormous emotional burden in their daily work, which could affect—in an extremely negative way—the new situation to which they are being abruptly subjected by having to work 10 more years. The claimants argue that all these changes, and others derived from the application of Law 9544, were made without technical-scientific studies, not of an accounting nature like the IICE products, but demographic and sociological ones that would allow for determining, with certainty, the possibility that Judges of all areas handled by the Judicial Branch, as well as Judicial Police, administrative staff, Prosecutors, Public Defenders, among others, can continue working—having to extend their years of service to retire due to the reform—without affecting public service, but above all without causing harm to their physical and mental health. Here they highlight that many of these judicial servants, being very close to obtaining their retirement, already had a retirement plan for which they had been preparing for several years and now, with the reform, they must modify it, with these claimants considering that this harms the expectation of concluding a judicial career. They add that, in addition to the foregoing, for the cases of people who will have to work beyond age 65 in order to obtain the right to retirement, what is indicated in Conventions of the International Labour Organization is being breached, which state that the retirement age cannot exceed 65 years, as provided in ILO Convention No. 102 in its article 26, paragraph 2, as well as ILO Convention 128 in its article 15, which, in relevant part, states:

"The prescribed age shall not exceed sixty-five years, but a higher age may be prescribed by the competent authority, taking into account appropriate demographic, economic and social criteria, justified by statistical data. 3. If the prescribed age is equal to or higher than sixty-five years, that age shall be reduced, under prescribed conditions, for persons who have been working in occupations deemed arduous or unhealthy by national legislation for the purpose of old-age benefit."

XXXIII.Drafted by Judge Araya García. On this matter, there is no specific opinion issued by the Attorney General's Office, which in its report reiterates the legislator's power to make the necessary adjustments so that pension funds are sustainable and can thus provide the promised benefits to all their participants. The same occurs with the Legislative Assembly, which considers that the decision taken was based on the technical studies provided. The Supreme Court explained that on this issue, it refers to what was indicated to the Legislative Assembly within the legislative file, in the sense that all these changes represent a disincentive for the entry of valuable professionals into the Judicial Branch who, considering the economic result of a future evaluation, would prefer to pursue their professional career in another labor sphere, as the judicial, prosecutorial, Public Defense, and general staff career is affected. In addition, it pronounced that the renewal of staff who manage to remain in the Judicial Branch will be affected, such that there will be elderly officials who will remain working solely out of necessity and the decrease their income would suffer if they retired; the judicial population will be at a crossroads because they have the desire to opt for retirement and the motivation to retire and rest, but they are placed in a condition where they must evaluate their economic situation. It further argued that all this reduces the competitiveness of the Judicial Branch in the labor market and this will impact the quality of the Administration of Justice. It also considered that the regulation of the Judicial Branch Retirement and Pension Fund should not be evaluated solely from an economic perspective, as fundamental, inalienable rights are at stake, associated with a worker who, during their years of service, has contributed to a regime with the expectation of having a dignified retirement that would allow them to meet their needs and enjoy quality of life in their retirement years, but now, the imposition derived from the new law will affect vulnerable population groups despite the fact that this is a collective requiring greater protection from the State.

XXXIV.Drafted by Judge Araya García. It is stated that the reform has imposed on the present and future participants of the fund a set of eligibility conditions that seriously obstruct their possibilities of enjoying an adequate retirement when they cease their work as judges, police officers, prosecutors, defenders, and judicial workers in general. In this regard, the Court notes that the arguments of harm to the right to an appropriate and fair retirement are constructed by making a comparison between the former system (which the claimants seem to endorse) and the system introduced with Law 9544. Therefore, it is worth recalling what the changes were—in terms of eligibility—that the regime underwent with the regulatory change, beginning with the ordinary retirement, whose 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 being "the last 5 years" (repealed article 231) to a minimum of 20 years worked within the Judicial Branch. Regarding early retirement, the changes are summarized as follows: early retirement with proportional payment for completing years of service was changed, going from 30 years of service to 35, provided a minimum retirement age is met, set at 62 years for men and 60 years for women; likewise, early retirement with proportional payment for reaching a certain age was modified, going from age 60 and at least 10 years of service (repealed article 225) to age 65, with a requirement of at least 20 years of service in the Judicial Branch according to the currently effective text. In addition, the amount of the retirement payment was adjusted downward, going from 100 percent of the average of the last 24 salaries to 82 percent of the average of the last 240 salaries.

Regarding such variations, the claimants elaborate a series of examples of situations they consider unjust and contrary to international regulations, but the truth is that the examples presented are not sufficient to make a decision to annul the rule as requested, because it happens that no real and current data are provided by age profile of entry into the Judicial Branch to verify, for example, what the behavior of fund participants has been regarding the use of the figure of early retirement, or whether the case of a person who enters the service of the Judicial Branch at age 46 is repeated with sufficient frequency to conclude that the system, as a whole, becomes openly unjust by requiring more years of service specifically in the Judicial Branch; likewise, nor are technical data provided regarding the years of service, capable of disproving the actuarial report, that would indicate that a large number of people would have to remain well beyond age 65 to complete the 20 years of effective service within the Judicial Branch. Nor is it valid to compare the supposed expectations of obtaining an early pension under the former law with the conditions for acquiring an ordinary pension under the new regime, because that is incongruent as they are qualitatively different cases. It cannot be lost sight of that the logic currently underpinning pension regimes such as the one under analysis aims to achieve—over time—sufficient economic conditions to provide protection to participants when their work capacity is affected by the effects of old age or another contingency; and that is the reason why state authorities must set parameters that ensure adequate use of labor and productive potential and the securing of dignified conditions for when that potential declines due to age. Thus, for the Court, the centrality of this issue lies in the fact that the modifications to eligibility in the different modalities respond to a need for a compromise between the particular conditions of the work carried out by the Judicial Branch and the need for the pension system for the protection of its servants when they reach old age to be financially sustainable as a whole, over time.

As stated, the Chamber shares the thesis that the creation of a separate retirement regime for the Judicial Branch has been a key element for the important role that this body has fulfilled within the social and democratic Rule of Law in our country; however, this cannot serve to petrify a situation that, as has been demonstrated, financially threatened the stability of the Judicial Branch fund, the rights of its beneficiaries, and the Costa Rican State itself, which has provided a good part of the funds to build said regime. Thus, in the face of the economic emergency that imposed a modification, the changes made represented—for the generality of participants who have pursued a judicial career and aspire to ordinary retirement—a delay of 3 years with respect to the requirements of the former law, and a delay of 5 years in the vast majority of other cases, for those who aspire to early retirement. As is clear, the design could not take into account all the possible particularities that may arise in specific cases, but as indicated, in the generality of cases, the modifications of 3 and 5 years respectively are supported by technical studies and, for the generality of people, do not constitute a sharp aggravation of their eligibility situation. It is clear that the general hypothesis proposed by the claimants that judicial workers in general, and solely by the fact of working in that institution, are subjected to a burden and wear and tear clearly differentiable from other groups of workers, is not supported by evidence provided in the case file, nor is there a demonstration that the examples offered reach such a degree of repetition that they affect the overall fairness of the system with a magnitude such that it can be said that fundamental rights of the generality of its participants have been harmed, which does not mean that there are no groups within the generality of workers who do require special measures due to the type of work they perform, but this requires 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, besides being a comprehensive study, is a study that evaluates the effects over a 100-year timeframe of the analyzed variables. Specific examples, without projection or comprehensiveness, the Chamber estimates do not have the weight to disprove technical evidence of this magnitude. To refute this evidence, an equivalent actuarial report is required.

Let us add to this that the original design that was modified by Law 9544 dates from the year 1993, that is, from a date prior to the substantive paradigm shift that occurred with the enactment of the Worker Protection Law No. 7983 of February 16, 2000. With this latter rule, the general pension design of the Costa Rican State for the protection of workers in their old age was rethought and a three-pillar system was established, the first being the basic pension regime (in this case, the Judicial Branch Retirement and Pension Fund regime), financed in a tripartite manner between the worker, the employer, and the State; a second pillar constituted by a complementary pension regime of individual accounts financed by the worker and the employer; and finally, a third pillar made up of the worker's long-term savings plans. Thus, this complementarity freed the basic regimes from the task of delivering, by themselves, broad and complete benefits, since the needs of retirees will be met with resources from the three cited sources. For this reason, and faced with the need to review the characteristics of the basic regime applicable in the Judicial Branch to achieve its sustainability, the attempt to adapt it to the new system makes sense, so that the final sum of all the pillars can result in sufficient economic benefits to achieve a dignified basic retirement and that—depending on the effort made by the interested party—can be increased to more or less match the standard of living enjoyed during their active working life. In this way, a possible finding, in some case or small group of specific cases, of some gap or seemingly unjust solution due to its incompleteness within this basic regime and its normal operation cannot—by itself—become a reason to dismantle the entire structure without also duly verifying—which the claimants have not done—the impossibility of the general social security system, as a whole, to provide a solution that appropriately addresses the rights of those affected. In conclusion, what is appropriate is to declare the claim without merit, insofar as it has not been technically demonstrated that the changes in the eligibility conditions have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age. In fact, had the reform not been made, the rights of all the beneficiaries of the Regime would be affected in a more burdensome way for them and for public finances. Likewise, returning to the conditions of the former law, which would be the consequence of annulling the challenged regulations, would mean returning to the unsustainability of the regime. Nor has it been demonstrated in the case file that the conditions of the Costa Rican Social Security Fund regime, which has been publicly announced to have, in turn, financial sustainability problems, is a better technical alternative than the one adopted by the legislator, since, in this aspect, no technical studies are provided to support that thesis.

From the reading of the partially transcribed precedent, it can be verified that this Chamber concluded, by majority—in accordance with the reasons extensively developed in said opinion—that the reform to the retirement regime of the Judicial Branch, specifically regarding the changes introduced to the eligibility conditions for ordinary and early retirement of judicial servants—including the requirement of a minimum of twenty years of service in the Judicial Branch to be eligible for early retirement—far from being arbitrary, capricious, unfounded, or discriminatory, was due to the real need to guarantee the solvency of the Judicial Branch Retirement and Pension Fund, and that such changes were made within "within the legitimate constitutional framework of action of the legislator in retirement matters," based on "adequate technical support." It concluded—as was reasoned in that opinion—that such modifications to the requirements for granting ordinary and early retirement of judicial servants were constitutionally valid, as reasonable and proportionate measures to guarantee the solvency and stability of the fund, in consideration of the technical criteria provided to the respective legislative file. In short:

"(...) the changes made were necessary precisely to achieve the sustainability of the special retirement and pension regime for judicial servants, and whose debacle would have truly meant a serious threat to the economic stability of the administrators of justice. Equally important for dismissing the claim is the fact that the legislatively established modifications do not result from unfounded whims of the legislators, but were adopted based on technical criteria, with broad participation of the interested persons, and were neither untimely nor capricious and are based on technical criteria. In this regard, the Chamber considers that the new pension regime, as the first pillar of the broader social security framework that covers the administrators of justice similarly to other workers, assures them a space of economic security."

Considerations applicable to the sub lite, insofar as no other criteria or technical studies are provided that would allow reaching a different conclusion.

IV.- In continuation of the foregoing, it must be reiterated that the claimant does not provide other criteria or technical studies that would allow reaching a conclusion different from the one already developed in the referenced opinion No. 2021-011957. In fact, the claimant's grounds and reproaches focus, essentially, on the application of the challenged regulations to the specific case of official Barrantes Venegas; however, in full consonance with what was already resolved in the abovementioned opinion No. 2021-011957, the mere reference to the application of the challenged regulations to a specific case cannot substitute for the existence of technical evidence allowing for adequately proving that "the changes in the eligibility conditions... have disproportionately affected the right of the participants in the Judicial Branch Retirement and Pension Fund to obtain a retirement that contributes, together with the other components of the pension system, to the achievement of their right to a dignified old age." Likewise, it is not appropriate for a specific or particular case of said person to be resolved by means of a constitutional challenge action. It must be recalled that this Chamber has indicated that:

"(...) the object of a constitutional challenge proceeding is not to address an individual harm that the plaintiff may allege; on the contrary, its object is a general interest that acts subject to public law and the norms that make up the legal system conform to the Law of the Constitution." (opinion No. 2013-002902 of 2:30 p.m. on March 5, 2013).

V.- In the standing section of the filing brief, the claimant expressly referred to an orphan's pension—which is a type of survivor's pension, provided for in article 228 of the Organic Law of the Judicial Branch—which appears to be due to a mere material error, since all of the claimant's substantive arguments, as well as the prayer for relief formulated in the filing brief, focus specifically on matters relating to the early retirement of judicial servants, regulated in the aforementioned numeral 224 bis of that same regulatory body. However, it should be noted that this Chamber also expressly pronounced on survivor's pensions in the abovementioned opinion No.

2021-011957, in the following sense:</span></p><p style="margin:12pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span>“</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">LXXIII.</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">Drafted by Magistrate Hernández López.</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">Regarding the right to a</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">survivor's pension (pensión por sobrevivencia). -</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">In accordance with the International Labour Organization (ILO), Social Protection is a human right, essential for achieving sustainable development, comprised of sets of basic social security guarantees, defined at the national level, that ensure protection aimed at preventing or alleviating poverty, vulnerability, and social exclusion. In turn, social security consists of the pension and economic systems that cover the risks to which certain persons, mainly workers, are subjected, in order to repair or, at least, mitigate the damages, injuries, and misfortunes of which they may be involuntary victims or victims without bad faith (see judgment number 2007-017971 of 14 hours and 51 minutes of December 12, 2007).</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">Of interest for this section, it is worth noting 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 deprivations that would otherwise derive from the disappearance or a severe reduction of their income as a consequence of illness, maternity, employment injury or occupational disease, unemployment, disability, old age, and death; also protection in the form of medical assistance and aid to families with children”</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">(see Introduction to Social Security. I.L.O. Geneva, 1987, p. 3).</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">Social security is an essential instrument for creating social cohesion, it contributes to guaranteeing social peace and social integration, it is an indispensable part of the social policy of governments and is an important tool for preventing and alleviating poverty; correctly administered, it increases productivity by providing medical assistance, income security, and social services, and although it represents a cost for businesses, it is also an investment in people and, at the same time, a support for them (see Social Security: a new consensus. ILO. Geneva, 2002, pp. 1 and 2). Within the group of benefits contained within social security in Costa Rica, are the “survivor's pensions” which are those that—upon prior fulfillment of the legally established requirements—can be granted to the family members who survive the active male or female worker who dies, regardless of whether the cause of death is illness, work-related accident, or others. In this way, the “survivors” in the context of social security refer to the worker's partner and their orphans, their protection acquiring special relevance because, precisely, when a significant part of a family's support is lost through death, it is essential to guarantee their bereaved the ability to continue having, at least, the minimum conditions necessary to survive while they manage to adjust to the new situation, and it is there where social protection policies make sense to the extent that they contribute to preventing and reducing poverty, inequality, promoting social inclusion and respect for human dignity; that they contribute to providing people with a dignified and full life in the terms set forth in Article 2 of the Comprehensive Law for the Elderly Person (Ley Integral para la Persona Adulta Mayor), No. 7935 of October 25, 1999. According to the doctrine, the branch of survivors' benefits of social security was originally conceived within a traditional form of family life, composed of husband, wife, and children, in which the married woman remained in her home attending to domestic chores and raising the children, while the person responsible for providing sustenance to the family was the husband and father. Within that context, if the man died, his widow and orphans would be deprived of their sustenance, exposed to multiple vicissitudes such as poverty, lack of minimum living conditions, impossibility of access to health and education, among others, and for that reason, survivor's pensions were devised as part of social security. Subsequently, with the incorporation of women into working life and the modification of the traditional family scheme, those survivors' benefits have become “family or dependent persons' benefits,” which, despite still being mainly intended for the partner of the deceased worker and the orphans, are not necessarily aimed at providing them with basic sustenance but rather come to collaborate with the economic contribution that the deceased insured person generated in their family nucleus, so that the family can continue maintaining a certain standard of living according to what they usually enjoyed; a contribution that is of great relevance especially when considering that there might be small children or persons with disabilities, whose economic needs are often of great magnitude. In Costa Rica, the legislation regulating this matter has been based on the principles enshrined in Conventions 102 and 128 as well as Recommendation 131, both of the International Labour Organization, and the Judicial Branch (Poder Judicial) has not been an exception because its Organic Law has included that type of protection. In that sense, and before the reform by Law 9544 challenged here was approved, in the event of the death of an active employee of the Judicial Branch, the former Article 230 of the Organic Law of the Judicial Branch No. 7333, provided:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 230.</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">Officials and employees who have served less than ten years shall not have the right to retirement nor their relatives to a pension, except in the case provided for in Article 228.</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">However, if the death of the employee occurs as a result of the exercise of their duties—regardless of the time served by the latter—in addition to the legally corresponding indemnities, their beneficiaries shall have the right to a temporary and proportional pension, within the conditions that this Law provides for such cases.”</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">As is clearly evident from the reading of the norm, Law 7333 regulated the possibility that, in the event an active worker of the Judicial Branch died but had 10 or more years of service for the institution, their relatives would have the right to a pension regardless of the causes for which the death occurred, also establishing the possibility that, if the death occurred as a consequence of the exercise of duties and the worker had less than 10 years of service, the beneficiary relatives would have the right to a temporary and proportional pension, according to the provisions of the Law for those cases. It is clear that the norm established broad social protection for the deceased's bereaved in accordance with the most basic principles established in the matter by the International Labour Organization, in terms of constituting a measure in their favor against uncertainty and life risks that can result in effects on present and future well-being, for there is no doubt that a person's socioeconomic conditions exacerbate inequalities, vulnerability, and poverty. It should be noted that, according to the previous Article 224—of Law 7333—to obtain regular retirement, a judicial worker had to have 30 years of service, and therefore the norm transcribed supra provided that officials and employees who had served less than ten years would not have the right to retirement; however, the legislator with adequate social foresight, and anticipating the exceptional situations of life that may occur, understood the need to protect the relatives and provided that, upon exceeding 10 years of service, in the event of the death of an active male or female worker, their bereaved would indeed have the right to a proportional survivor's pension. It is indisputable that this provision is of great relevance in a Democratic and Social State of Law, in addition to the fact that death is an undeniable and integral part of the life cycle, so it can occur at any moment; however, it takes on special relevance in the case of the Judicial Branch because many of its employees, by reason of their duties, are subjected to serious risks that can bring it about, and for this reason, that legislator also provided in that norm that if the death of the employee occurred as a result of the exercise of their duties, in that scenario the worker's time of service would not matter, because even if it were less than 10 years, their beneficiaries had the right to a temporary and proportional pension, within the conditions that the Law provided for those cases. It is more than evident that the legislator not only had a broad social and rights-guaranteeing perspective of fundamental rights, but also understood the importance of social protection as a mechanism to shield people against eventual risks in the life cycle, as a determining aspect in society to promote productivity, decent work, the structural transformation of national economies in order to reduce poverty, social exclusion, inequality, strengthen social cohesion, and political stability. Notwithstanding the foregoing, with the reform introduced to the Organic Law of the Judicial Branch through Law 9544 challenged here, the situation varies radically, as argued in the unconstitutionality action No. 18-009275-0007-CO, in which the claimants argue that it “renders that right nugatory for future beneficiaries such as those who acquire the right to a survivor's pension (spouses, partners, dependent parents) or to an orphan's pension, disabled or incapacitated persons who depend on the deceased person, because these, if the employee does not complete 20 years of service at the time of death, regardless of whether they had served 30, 35, or 40 years in another public sector institution, would be left unprotected, uncovered in such contingency,” considering that “the foregoing is inconceivable within the Social State of Law” and citing as an example the case of “a person who enters to work in the Judicial Branch at 50 years of age, they must wait until the age of 70 to be able to retire and even worse, if they died before completing those years, their survivors would not receive any pension,” also indicating that the most serious aspect of this radical change of conditions for survivors is that it has been done without having technical criteria to justify it and without offering much analysis by the Legislative Branch. To understand the scope of the claimants' allegation, what the numerals 228 and 229 of Law 9544—challenged here—provide must be observed, since they regulate matters relating to the survivor's pension:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 228-</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">The following have the right to a survivor's pension:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">a) The surviving spouse of the deceased employee or retiree who is economically dependent on the decedent at the time of death.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">b) The economically dependent partner at the time of the retiree's death, who has cohabited for at least three years prior to the death and both had legal capacity to marry, in accordance with civil legislation.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">c) The divorced or judicially or de facto separated spouse, former partner, who at the date of death enjoys a maintenance pension, declared by final judicial judgment, or who demonstrates that they received economic assistance from the decedent.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">The following have the right to an orphan's pension (pensión por orfandad):</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1) Children who, at the time of the decedent's death, were economically dependent on the latter, according to the following rules:</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.1) Unmarried minors.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.2) Those over eighteen years of age, but under twenty-five years of age, who are pursuing studies recognized by the Ministry of Public Education (MEP), the National Learning Institute (INA), or other institutions at the discretion of the Administrative Board (Junta Administradora).</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">1.3) Those of legal age who, prior to the decedent's death, are disabled and incapable of performing paid work.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-style:italic">In the absence of entitled persons by widowhood, de facto union, or orphanhood, the parents have the right to a pension, if at the time of the decedent's death they were economically dependent on the latter.</span></p><p style="margin:0pt 37.9pt 0pt 35.45pt; text-indent:14.2pt; text-align:justify; line-height:115%; font-size:14pt"><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">“Article 229-</span><span style="font-family:'Times New Roman'; font-style:italic">&#xa0;</span><span style="font-family:'Times New Roman'; font-style:italic">The amount of the survivor's pension benefits in cases of widowhood, de facto union, orphanhood, or ascendancy shall be proportional to the amount of the pension the pensioner received at the time of death, and as a whole this amount shall not be greater than eighty percent (80%) of what corresponded to the decedent.</span> In the event of the death of an active employee, the amount of the pension for widowhood, common-law union (unión de hecho), orphanhood, or ascendancy shall be proportional to the amount of pension that the deceased would have received according to the fulfillment of requirements at the time of the contingency, and in total this amount shall not exceed eighty percent (80%) of what would have corresponded to the deceased (causante).

*The proportions for the widowhood, common-law union, orphanhood, and ascendancy benefits shall be those stipulated in the regulations of the Regime.* *All survivor pensions shall expire upon the death of the beneficiary, except as provided in this article for the pension corresponding to children.* *The allowances that expire shall proportionally increase those of the other beneficiaries who remain in effect, at their request and provided they require them, subject to a prior social work study and approval by the Administrative Board of the Fund.* *(Thus amended by article 1 of law No. 9544 of April 24, 2018)* From the reading of both provisions, it is observed that the claimants' assertion makes sense when considering the case of an active Judicial Branch employee who dies and who constituted a support for the surviving persons, for observe that, under the rule established in the cited provision 229—currently in force—, in the event of the death of an active employee, the amount of the pension for those who become beneficiaries "shall be proportional to the amount of pension that the deceased would have received according to the fulfillment of requirements at the time of the contingency, and in total this amount shall not exceed eighty percent (80%) of what would have corresponded to the deceased." The foregoing means that, as the claimants mention, only those survivors of an employee who had 20 years or more of service in the Judicial Branch may be beneficiaries of a survivor pension, because the norm requires that the deceased have been in a position to fulfill the requirements established in article 224 above, that is, that they have had 20 or more years of service in the Judicial Branch; a norm that, furthermore, does not contemplate any possibility of benefit for their survivors in the event that the death of the active worker was a consequence of the exercise of their functions in the institution. In addition to the foregoing, as the claimants correctly state, the norm was modified to adopt this new wording without any technical support to justify it, and, in that sense, it suffices to review the legislative file to which this Court has had access to verify that there is no accredited technical basis in the file or in the appearances of the technicians, in relation to the survivor pension, that justifies the difference being created between the prior Law 7333 and the reform. This Chamber has been able to verify that none of the 6 IICE Products that served as support for the legislator to enact Law 9544, contemplate any technical justification for rolling back social protection in this matter; a regression that is evidently contrary to the guaranteeing principles of fundamental rights that must be protected by this Constitutional Court because, despite the fact that progressivity must prevail in this matter, in the specific case a regression occurred without foundation, by changing the conditions for the survivors of workers with 10 years or more of service in the Judicial Branch, to 20 years or more of working in the institution. In addition to the foregoing, for this Chamber, such a burdensome distinction between the previous system and the current one renders the reformed norm unreasonable, therefore, lacking a content of justice, and, in that sense, it must be recalled that this Chamber has stated in the past that if "the distinction established by a norm produces a situation of injustice, such norm is not reasonable and, therefore, it violates the content of the principle of equality enshrined in article 33 of the Constitution" (judgment number 2001-03192 of 10 hours 10 minutes on April 25, 2001). It is considered that the foregoing is so because, as can be observed, confronted with two equal situations—death of an active Judicial Branch worker—, the challenged Law 9544 gives them a completely different treatment from that contained in Law 7333, despite the fact that nearly 30 years have passed between the promulgation of one law and the other, and the logical thought is that societies move forward in a positive and progressive manner, not in reverse. The actual situation in which persons who could derive benefits under these circumstances have been placed is harmful to fundamental rights, openly contrary to the provisions of article 51 of the Constitution, according to which the family, as the natural element and foundation of society, has the right to the State's protection, highlighting with special relevance the case of the mother, children, older adults, and persons with disabilities. The foregoing means that, even though the State has the obligation to adopt the measures that are necessary to guarantee that protection, and among them is, without a doubt, the recognition of the social benefits derived from active workers in the Judicial Branch who have children or dependent persons who are members of that essential nucleus, the truth is that, based on article 229 of Law 9544, they are left in outright helplessness if that active employee did not have 20 years or more of working for the Judicial Branch, in a clear worsening compared to the previous system that protected workers with 10 years of service, or even less, if the death resulted from the exercise of their functions in the Judicial Branch, despite the fact that the death of an active worker generally refers to extremely exceptional situations, which when they occur involve very few people, and precisely for that reason, the recognition of the pension to their survivors would not imply a large-scale impact on the Judicial Branch Retirement and Pension Fund. Thus, what is appropriate is to maintain the validity of the 10 years established by article 230 of Law 7333, such that the repeal of that norm, Consequently, it shall be understood that the survivor pension corresponds to the survivors of the active Judicial Branch worker who, at the time of the contingency, had 10 years or more of working in the Judicial Branch and, in the event that death occurred as a result of the exercise of their functions, whatever the time of service had been, the beneficiaries shall have the right to a temporary and proportional pension in accordance with what the law provides, in addition to the compensations established by the regulations governing the matter, because, as already indicated, the amount of the pension aims to replace the support that the deceased person provided to the persons who depended on them, so that they are not left in a situation of indigence or helplessness." Wherefore, finally, in the operative part, it was resolved that:

"**Fourth:** By majority (Castillo Víquez, Rueda Leal, Hernández López, Araya García and Garro Vargas), the requirement of 20 years of service required for purposes of obtaining the survivor pension derived from article 229 of Law 9544 of April 24, 2018, is declared unconstitutional, in which case the requirement of 10 years to acquire that right remains in force, according to article 230 of Law 7333 of May 5, 1993, in the version prior to the reform." It is clarified, again, that this was resolved properly with respect to the survivor pensions provided for in articles 228 and 229 of the Organic Law of the Judicial Branch, not, however, with respect to the early retirements regulated in the cited provision 224 *bis*, which properly constitutes the object of this unconstitutionality action and which corresponds to a different normative scenario.

**VI.— IN CONCLUSION.** As a corollary of the foregoing, it is appropriate to reject on the merits the action brought against article 224 bis of the Organic Law of the Judicial Branch, amended by Law No. 9544 of April 24, 2018, as so ordered.

**VII.— NOTE BY JUSTICE GARRO VARGAS:** I note that this matter was examined by me and I considered that there is no reason for me to recuse myself. The foregoing because my brother Fabrizio Garro Vargas, identity card 1-775-688, Superior Labor Judge, has more than 20 years of working for the Judicial Branch. Therefore, the eventual declaration of unconstitutionality of the norm in no way harms or benefits him.

**VIII.— DOCUMENTATION PROVIDED TO THE FILE**. The parties are warned that, if they have provided any document on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device, or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not withdrawn within this period will be destroyed, according to the provisions of the "Regulation on the Electronic File before the Judicial Branch," approved by the Plenary Court in session No. 27-11 of August 22, 2011, article XXVI, and published in Judicial Bulletin number 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judicial Branch, in session No. 43-12 held on May 3, 2012, article LXXXI.

**Por tanto:** The action is rejected on the merits. Justice Garro Vargas enters a note. Justices Salazar Alvarado, Garita Navarro, and Jara Velásquez dissent regarding the violation of article 167 of the Political Constitution and declare that the challenged law presents the essential procedural defect consisting of the failure to consult the Judicial Branch on the text approved by Parliament by an absolute and not qualified majority, which affects it in its entirety (article 167 of the Political Constitution), by affecting its organization, structure, functioning, and independence, a reason for which they deem it unnecessary to analyze other procedural and substantive defects raised by the claimants; except for those in which it is required to take a position so that there is a vote of full conformity (article 60.2, Code of Civil Procedure).

Fernando Castillo V.

Paul Rueda L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

José Roberto Garita N.

Rosibel Jara V.

**EXPEDIENTE: 21-022266-0007-CO** **DISSENTING VOTE OF JUSTICES SALAZAR ALVARADO, GARITA NAVARRO, AND JARA VELÁSQUEZ, WITH DRAFTING BY THE FIRST, IN RELATION TO THE VIOLATION OF ARTICLE 167 OF THE CONSTITUTION.** The undersigned justices (a) dissent in relation to this point, clarifying that in the case of the latter two (a), although we do not sign the original draft of the dissenting vote, we now adopt as our own the reasons that were recorded in Judgment No. 2021-11957 of 17:00 hours on May 25, 2021, so that, jointly, we reiterate it as follows:

*“The undersigned justices dissent, and we consider that it is necessary to address the problem of the accumulated actions from the perspective that the legislative procedure incurred a gross, manifest, and evident violation of article 167 of the Political Constitution, and that, due to its relevance, demands the unconstitutionality of the entirety of Law No. 9544 called “Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms”.* *It must begin by pointing out that the Special Commission in charge of processing legislative file No. 19,922 informed the Plenary Court of the respective bills of law that were being approved, in order to comply with the provisions of said provision 167.* The consultations with the Supreme Court of Justice occurred on three occasions; namely:

• a)The bill was consulted with the Supreme Court of Justice and the report rendered was made known in session of the Full Court No. 29-16 of September 26, 2016, article XVIII, communicated to the Legislative Assembly by means of official letter SP-288-16 of September 28, 2016, with the express indication that the consulted bill affects the organization and functioning of the Judicial Branch.
• b)On a second occasion, the Full Court in session No. 9-17 of April 24, 2017, article XXIX, heard the consultation that was raised and by means of official letter SP-118-17 of April 26, 2017, in which the Legislative Special Commission was informed that the Full Court had issued a negative opinion on the consulted bill, because it affects the organization and functioning of the Judicial Branch.
• c)On a third occasion, the Full Court in session No. 26-17 of August 7, 2017, article XXX, heard the consultation raised by the Special Commission regarding the Affirmative Majority Report, and a negative opinion was issued indicating that the bill processed under file No. 19.922 affects the organization, structure, and functioning of the Judicial Branch; a decision communicated to the Legislative Assembly by means of official letter SP-253-17 of August 10, 2017.

In each and every one of the consultations formulated, the Full Court established that these were bills that affected its organization and functioning, so that, based on that negative opinion, in accordance with Article 167 of the Political Constitution, and the principles of coordination, mutual respect, and equality that inform the relations between constitutional bodies, between two branches of the State [system of checks and balances], the law had to be approved by a qualified majority. Furthermore, it must be mentioned that the last of the projects, which was the Affirmative Majority Report accepted by the Special Commission on July 27, 2017, was not the final one. On the contrary, the text of the bill was subject to substantive and reiteration motions accepted by the Special Commission, on which the Legislative Plenary subsequently voted in First Debate, in extraordinary session No. 14 of October 30, 2017 (folios 4000, 4306 to 4327 of the legislative file). Thus, the text voted on by the Legislative Plenary in First Debate was the modified text, maintaining some of the points on which the Full Court had issued its negative opinion, among them, the installation of an Administrative Board of the Pension and Retirement Fund of the Judicial Branch to the detriment of the powers of the Superior Council of the Judicial Branch. But in addition, it must be indicated that it contained other substantial changes to the bill, including those that aggravated some conditions for judicial officials regarding the exercise and enjoyment of the right to a pension and retirement, a situation on which the Full Court should have ruled —with respect to Article 167, Constitutional— due to its relevance in Constitutional Law. These modifications were voted on in the First Debate, and were approved in the Second Debate. The foregoing, without the institutional consultation having been made on the bill approved in Commission and which was subsequently voted on by the Plenary in extraordinary session No. 14 of October 30, 2017.

Although the Legislative Assembly considered it unnecessary to make the consultation to the Judicial Branch on the final text, approved in the Special Commission on July 27 and the subsequent modifications made by substantive and reiteration motions, and to continue with the legislative process following the criterion of the Chamber in Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, given that those modifications to the Judicial Branch pension system did not affect the structure and functioning of the Judicial Branch, nor the essential content of judicial independence, this is not acceptable to the undersigned judges, as will be developed further below. In addition, there is a pattern of aggravation to the conditions of Judicial Branch officials that can be enumerated from some provisions that were modified by the substantive and reiteration motions that were embodied in the text approved in Commission, which implied a substantial change in the bill consulted previously. As indicated, this last text was approved in First Debate on October 30, 2017, according to which, through a comparative exercise, some of the following substantial modifications of consideration are observed, for example:

• a)In Article 224, the aggravation was established at 85% of the average of the last twenty years of ordinary monthly salaries earned in the labor sphere, and it is modified to establish it at 82% of the average of the last twenty years of ordinary monthly salaries.
• b)In Article 229, a similar decrease affected the survival regime, where upon the death of the active employee the amount for widowhood, common-law union, or orphanhood would decrease from 85% to 80%.
• c)In Article 227, a similar thing occurs for the permanent disability (invalidity) of the official, from 85% to 83%.
• d)With respect to the income of the Pension and Retirement Fund of the Judicial Branch, it is evident that a worker contribution of between eleven percent (11.00%) and fifteen percent (15%) of the salaries earned by judicial employees, and of the retirements and pensions chargeable to the fund, was established. Finally, it was approved at a fixed thirteen percent (13%), which implies that the floor or base of the worker contribution could not be decreased to the lower percentage of eleven percent. Although the upper limit is eliminated, the fixed percentage eliminated the decrease in favor of the judicial employee, who historically has been contributing a significant sum to the fund.

Thus, contrary to the criterion of the majority of the Chamber, which relies significantly on the doctrine of Judgment No. 2018-005758 of 3:40 p.m. on April 12, 2018, a precedent in which the undersigned, together with Justice Cruz Castro, signed a dissenting vote, we consider that Law No. 9544 called “Reform of the Retirement and Pension System of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms,” contains the substantial defect in the legislative procedure, for the violation of the constitutional norm that imposes the constitutional consultation, based on the arguments set forth below.

A.- Text of the law not consulted with the Supreme Court of Justice.

At the base of the discussion, as is rightly affirmed in the majority vote, is the determination of whether, in accordance with the provisions of Article 167 of the Political Constitution, the legislative body was or was not obligated to consult the cited bill with the Judicial Branch, a duty that, moreover, has been incorporated in Articles 126 and 157 of the Regulations of the Legislative Assembly, in which the procedure to be observed for this purpose is stipulated. From the constitutional text, it follows that the mandatory consultation with the Supreme Court of Justice is only mandatory if the bill refers to the organization or functioning of the Judicial Branch. Therefore, the crux of the matter lies in what is to be understood by “organization or functioning of the Judicial Branch.” In this regard, the majority vote maintains that when the Fundamental Political Charter refers to the organization and functioning of the Judicial Branch, it refers —only— to the affectation of the jurisdictional function, and not the strictly administrative one. In support of this position, Judgment No. 1998-5958 of 2:54 p.m. on August 19, 1998, No. 2001-013273 of 11:44 a.m. on December 21, 2001, and No. 2008-5179 of 11:00 a.m. on April 4, 2008, are cited. Likewise, in relation to the specific topic of the Pension and Retirement Fund of the Judicial Branch and the obligation of the Legislative Assembly to consult the Supreme Court of Justice on bills that deal with it, the majority vote cites Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, based on which it concludes that in those cases, the Legislative Assembly is not obligated to consult the bill with the Supreme Court of Justice, under the terms stated in Article 167, Constitutional. However, in the opinion of the undersigned, such an interpretation of the constitutional provision, restricted solely to the jurisdictional function, does not derive either from the text of the Fundamental Charter or from the jurisprudence of this Chamber. In effect, regarding the cited precedents, it must be noted that, with respect to the first three judgments, what the majority maintains in its vote cannot be inferred from them. Thus, in Judgment No. 1998-5958 of 2:54 p.m. on August 19, 1998, what is developed is only the term “functioning” —of the binomial “organization or functioning”— of the Judicial Branch, without referring to the topic of the organization of that Branch of the Republic. Specifically, in the citation made from that vote, the Chamber clearly indicates that “...the matters that preceptively require a consultation with the Supreme Court of Justice are those referring ‘to the organization or functioning of the Judicial Branch,’ where the term ‘functioning’ alludes not only to aspects of internal administrative regime of judicial offices, but also to procedural matters governing the substantiation of the various matters submitted to those courts,” which makes it evident that the topic of organization —which is the one of interest here— was not developed in said resolution, simply because the case did not require it, since it dealt with the preceptive legislative consultation of constitutionality on the bill for the “Addition of a new Chapter IV, called ‘On the remedy of habeas data,’ to Title III of the Constitutional Jurisdiction Law, Law No. 7185 of October 19, 1989,” processed in legislative file number 12.827, where the topic under discussion was that the reform affected the jurisdictional function of the Judicial Branch. That this is so is evident from the very text of the judgment, which is not cited with due breadth in the majority vote: “...the matters that preceptively require a consultation with the Supreme Court of Justice are those referring ‘to the organization or functioning of the Judicial Branch,’ where the term ‘functioning’ alludes not only to aspects of internal administrative regime of judicial offices, but also to procedural matters governing the substantiation of the various matters submitted to those courts. And, in Costa Rica, constitutional jurisdiction is undoubtedly judicial, since both the Political Constitution and the Constitutional Jurisdiction Law integrate this Chamber within the structure of the Court.” Having made the citation in its context, it cannot be inferred that the Chamber restricted the binomial “organization or functioning” merely to what is jurisdictional; rather, in the cited case, this Constitutional Court referred only to the aspect of the jurisdictional function of the Judicial Branch, because that was the topic under discussion, without making any exclusion or referring to the topic of the administrative organization of said Branch of the Republic. The same can be said in relation to Judgment No. 2001-013273 of 11:44 a.m. on December 21, 2001, to which the majority alludes. It is a discretionary legislative consultation of constitutionality regarding the bill for the “Modification of the Penal Code, Law Number 4573 and its reforms,” legislative file number 14.158. Again, it was a reform that directly affected the jurisdictional function of the Judicial Branch, not its administrative organization. Hence, in this case, the Chamber also did not develop this latter topic, as it was superfluous. It is for this reason that the substantive discussion focused and exhausted itself on the aspects of the jurisdictional function of the Judicial Branch: “...said consultation [the one under Article 167 of the Political Constitution] is mandatory when what is discussed in the Assembly is a bill that seeks to establish rules of functioning and organization of the Judicial Branch, understood not merely as the provisions regulating the creation of courts of justice or jurisdictional powers, but even those that provide on the manner of exercising said powers, that is, on the way in which the Judicial Branch carries out its jurisdictional function, including properly procedural rules.” Certainly, it is evident that what was expressed was limited to examining matters relating to the exercise of jurisdictional powers of the Courts of Justice, since it was on that particular aspect that said consultation focused. But the Chamber did not say that this is the only extreme in which the consultation of provision 167 of the Political Constitution is mandatory; rather, what it said is that in that case, it is mandatory, without referring to other cases in which it also is, such as what relates to the organization and administrative powers of the Judicial Branch.

The Judgment No. 2008-5179 of 11:00 a.m. on April 4, 2008, deserves separate commentary, since here, unlike the reading made by the majority, it does establish that what relates to the administrative organization of the Judicial Branch falls within the mandatory consultation stipulated in Article 167, Constitutional. On that occasion, this Constitutional Court, as the highest interpreter of the Political Constitution, when referring to the terms “organization or functioning” of the Judicial Branch, contained in Article 167 of the Political Charter, as a condition for the mandatory consultation with that Branch of the Republic by the Legislative Assembly, considered “...that a bill deals with such extremes when it contains in its articles explicit norms that provide for the creation, substantial variation, or suppression of strictly jurisdictional bodies or those of an administrative nature attached to the Judicial Branch, or creates, ex novo, substantially modifies, or eliminates materially jurisdictional or administrative functions...” This is not a change in the criterion of this Court on the matter, but, within the jurisprudential line already traced, a greater determination of the terms “organization or functioning” used by Article 167 of the Political Constitution, to establish the cases in which bills that are in the legislative process must be consulted —obligatorily— with the Supreme Court of Justice. This judgment did not expand, in any way, the assumptions of mandatory consultation; on the contrary, what it did was to define them in a broader and more precise manner. Therefore, it was clearly determined there that in those cases, but only in these, the consultation is mandatory. Thus, it is understood that, in that same judgment, it was expressed: “[i]t is worth noting that such exegesis is imposed for the sake of maintaining the balance of powers, without privileging one or the other constitutional body, so that each one can exercise its functions independently and separately as imposed by the constitutional text itself (Article 9 of the Constitution). In other terms, the precision of such concepts avoids any collision, overreach, or exacerbation of the respective functions, for the sake of maintaining the equilibrium and containment of the powers, since the purpose of the norm is not only the functional independence and budgetary autonomy of the Judicial Branch, but also the balance between the Legislative and Judicial Branches. In effect, a broad interpretation of the terms used by the original constituent, by the Full Court, could lead to certain matters that, in a strict sense, are not referred to the organization and functioning of the Judicial Branch, unjustifiably warranting a reinforced law, which would slow down or hinder, unnecessarily, the legislative function. On the other hand, the disregard by the Legislative Assembly of the constitutional norm, by mistakenly considering that the bill does not deal with the organization and functioning of the Judicial Branch, could cause an injury to the functional independence and budgetary autonomy of the Judicial Branch.” From the foregoing, it follows that everything related to the matter of organization and functioning of the Judicial Branch, but only and strictly this —to maintain the balance between functional independence and budgetary autonomy of the Judicial Branch, on one hand, and the freedom of configuration of the ordinary legislator, on the other— is what obligates the legislative body to make the consultation before the Supreme Court of Justice, without being able to extend it to other matters. In this sense, there is not the slightest doubt that the Constitutional Chamber has understood that what relates to the administrative organization of the Judicial Branch, and not only what concerns the direct or indirect affectation of the jurisdictional function, obligates the legislative body to raise the consultation in the terms expressed in Article 167 of the Political Constitution. And it could not be otherwise, since the affectation or modification of the administrative organization of the Judicial Branch in general —and not only what pertains to jurisdictional or judicial bodies in the strict sense— also affects the Administration of Justice service it provides, and the independence constitutionally guaranteed to that Branch and to judges as officials called to dispense justice.

On the other hand, Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, and No. 2002-4258 of 9:40 a.m. on May 10, 2002, which are cited in the majority vote as a basis to conclude that bills related to the specific topic of the Pension and Retirement Fund of the Judicial Branch do not need to be consulted with the Supreme Court of Justice, also do not have the virtue of providing the basis that, in relation to this matter, affirms that the majority of the Chamber has.

In the first of said judgments, the Chamber heard accumulated unconstitutionality actions filed against the Framework Law on Pensions, Law No. 7302 of July 8, 1992. This Court, on that occasion, only affirmed that, in the case of the Framework Law on Pensions, there was no constitutional obligation to consult the bill with the Judicial Branch, for the simple reason that said bill does not affect judicial employees; and, therefore, it does not fall within what is prescribed by Article 167 of the Political Constitution. Likewise, in the cited vote, it is indicated that functioning refers to the jurisdictional function, but it makes no mention whatsoever of the topic of the organization of the Judicial Branch, which is what is at issue here.

Similarly, in Judgment No. 2002-4258 of 9:40 a.m. on May 10, 2002, the Chamber heard accumulated unconstitutionality actions filed against Article 4 of Law No. 7605 of May 2, 1996, insofar as it reforms Articles 224, 226, and 236, subsections 1) and 2), of the Organic Law of the Judicial Branch, No. 7333 of May 5, 1993, as well as, by connection and consequence, against Article 33, subsection a), of the Disability, Old Age, and Death Regulations of the Caja Costarricense de Seguro Social. The Chamber dismissed, among other issues alleged, the violation of Article 167 of the Political Constitution, due to the fact that the reform to the pension system of judicial employees that was challenged had no relation to the organization or functioning of the Judicial Branch, for whose definition it referred to what was said in this regard in Judgment No. 1995-3063 of 3:30 p.m. on June 13, 1995, which, as already stated, only referred to the term functioning of the Judicial Branch, without making any reference to the topic of its organization. Thus, unlike the criterion expressed by the majority, said judgments do not exclude the matter concerning the Pension and Retirement Fund of the Judicial Branch from the mandatory consultation with the Supreme Court of Justice, but only insofar as the respective bill has no direct relation to the “organization or functioning of the Judicial Branch,” topics that, certainly, were not involved in the actions raised before this Chamber and resolved in the cited judgments. By this, the matter concerning the Pension and Retirement Fund of the Judicial Branch is not excluded from the mandatory consultation with the Supreme Court of Justice, as the majority understands it, since this topic, considered in itself, is not excluded from said consultation; rather, it will depend on whether the bill in question contains or does not contain regulations related to the organization or functioning of that Branch, an aspect that must be determined beforehand in each case in order to establish the mandatory nature or not of said consultation.

On this point, it is important to clarify that the functional independence of the Judicial Branch, established in Article 9, and reinforced in Article 154, both of the Political Constitution, necessarily implies the power of said Branch of the Republic to give itself its own organization, in order to avoid, especially, the intrusion of political interests into its function. And this organizational independence, both administrative and jurisdictional, is what is also protected in provision 167, Constitutional. In this sense, in the opinion of the undersigned, it is a serious conceptual error to confuse or assimilate the jurisdictional function in a broad sense, including the auxiliary function to the jurisdictional one, with the strictly administrative function. The jurisdictional function is a special function, different from the administrative function performed by officials of the Executive Branch or the decentralized sector. The Administration of Justice is one thing, and Public Administration is quite another, given the particularities of the jurisdictional function compared to the merely administrative function. Precisely, one of those characteristics, without which it would be impossible to correctly exercise the jurisdictional function, is independence, in its dual aspect, both of the Judicial Branch in itself considered, and of the judge and other auxiliaries of the jurisdictional function.

It suffices, in order to comprehend the delicate task carried out by the judges of the Republic, with the collaboration of the officials who assist and aid them in their functions and without whom the former could not duly exercise their function, to bear in mind that they decide the cases submitted to their cognizance with the force of res judicata (cosa juzgada); that is, they decide what the truth is with the force of legal authority in each case, without their decision, once that condition has been reached, being able, in principle, to be reviewed. 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 is not guaranteed. And, in this sense, there can be no true independence if the salaries and the pensions and retirements of judges and judicial assistants are not commensurate with their responsibilities, which are vastly graver than those of any other official exercising a merely administrative public function. Hence, the one group and the other can in no way be equated, neither in responsibilities, nor in functions, nor in salaries, nor in retirement rights.

There is a consensus in administrative doctrine that the jurisdictional function is, if not the most complex, one of the most complex and difficult to carry out in the Constitutional Rule of Law State in modern societies. This is because, unlike what is decided in the Legislative and Executive Branches, the decisions of the Judicial Branch, in the exercise of the jurisdictional function, are unappealable; that is, they have the force or authority of res judicata (cosa juzgada). This not only implies a great responsibility, but also the need to have a series of principles and guarantees that allow the adequate exercise of that function. In this context, the independence of the Judicial Branch, both organic and functional, appears as a 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, of the Constitution, and of the conventionality parameter, which would be impossible if he or she does not have due independence. But this independence would be illusory if it does not necessarily imply adequate remuneration and a retirement right commensurate with their functions and responsibilities, both for the adjudicator proper and for the personnel who assist and aid them in their function. Therefore, in matters of remuneration and retirement, they cannot be equated with the administrative sector. The need to compensate for the complexity and difficulty involved in the exercise of the jurisdictional function justifies, regarding the matter at hand, that the retirement or pension of judicial servants not be the same as that of the rest of the public administrative sector. What is decided with the force of res judicata (cosa juzgada) in the judicial instances has transcendental effects on legal certainty and on the law in force in a society; and, consequently, on social peace. In all of this, judicial independence plays a leading role, because in a Constitutional Rule of Law State; that is, in a Democratic State, that principle has an institutional projection onto the Judicial Branch proper, in relation to any of the other Branches of the State, which also indispensably implies the personal and functional independence of the figure of the judge, not only in relation to those other Branches of the State, but even in relation to the hierarchical superiors of the Judicial Branch. Today, there is no Rule of Law if the Judicial Branch —with all its servants included— does not have real and effective independence. Judicial independence is an institutional guarantee established at the constitutional level, that is, at the highest rank of the hierarchy of norms, to the point that it is also stipulated as a Human Right. Indeed, the American Convention on Human Rights has established, as a human right, the right to be heard by an impartial judge. In this regard, Article 8.1 establishes:

“Article 8. Judicial Guarantees.

1. Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation brought against him or her, or for the determination of his or her rights and obligations of a civil, labor, fiscal, or any other nature.” Judicial independence constitutes a fundamental principle within the Constitutional Rule of Law State. But that independence, to be real, must be not only organizational and functional, but also economic. That economic independence is also guaranteed in Article 177 of the Political Constitution, by establishing that the ordinary budget bill must allocate to the Judicial Branch at least 6% of the ordinary revenues calculated for the economic year. The intention of the original Constituent Power, with the promulgation of this norm —which establishes a tied constitutional expenditure— is to guarantee, among other things, that judges and the rest of the judicial support personnel have a remuneration adequate to the complexity and difficulty of the jurisdictional function, which implies a retirement or pension also adequate to that and to the special prohibitions that said function entails for judicial servants, which do not weigh upon the public servants of the other Branches of the State. The constitutional norm prevents the budget allocation from becoming an instrument of political intervention in the jurisdictional function. But this must be seen in all its breadth, since the salaries of the adjudicators and support personnel, as well as the pension and retirement regime applicable to them, must maintain a strict relationship with the work they perform, under penalty of rendering the principle of judicial independence nugatory. Hence, economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself, and of the judges and judicial assistants, is essential in a Constitutional Rule of Law State. Thus, one way of guaranteeing the independence of the Judicial Branch, of the Judges of the Republic, and of judicial assistants, is with a dignified retirement or pension, commensurate with their constitutional functions.

In the statement of legislative intent that gave rise to the promulgation of the Law of Judicial Retirements and Pensions, as an addition to the Organic Law of the Judicial Branch, Deputy Teodoro Picado Michalski, on June 2, 1938, expressed the following:

“The Judicial Branch is one of the three main pillars upon which the Government of the Republic rests; and it is from its servants, those who, because they exercise very delicate functions for the very life of Society, greater education, probity, and work are demanded than from other employees. And that is surely why, in asking judicial servants for complete dedication, for long years, to the supremely important task of administering justice, —with the noble purpose of ensuring their subsistence upon reaching old age or when due to physical ailments they can no longer work,— the promulgation of a law that contemplates that difficult situation of the officials and employees of the Judicial Branch has been repeatedly urged before Congress, in different legislative periods.” It cannot be overlooked that adjudicating persons and the judicial officialdom in general are subject to a regime of prohibitions and incompatibilities of much greater intensity and rigor than the regime of incompatibilities and prohibitions affecting the rest of public officials, which makes it of a completely different nature. The regulations that apply to the administrative officialdom of the entire public sector cannot also be applied to judicial officials. In this sense, the constitutional principles of reasonableness and proportionality require that this asymmetric regime of incompatibilities and prohibitions, which responds to the very nature of jurisdictional and administrative functions, must have economic compensation, both in terms of salary and at the termination of the employment relationship. But also, the principle of equality, enshrined in Article 33 of the Political Constitution, implies the prohibition of treating unequal persons as equals, because a discrimination contrary to the Law of the Constitution would derive from that. In the case of judges and judicial officials, there exist objective, reasonable, justified conditions, grounded in the very nature of the jurisdictional function being exercised, for giving them treatment different from that of the rest of public servants of the different administrations, whereby, far from incurring discrimination, the principle of equality regulated in the cited constitutional numeral is protected. Which is to say, that if a differentiated retirement regime exists for the jurisdictional sector, it is not due to an arbitrary, subjective, or capricious decision of the legislator, but to the specific and different nature of the jurisdictional function which, objectively and constitutionally, justifies it.

The foregoing not only derives from our own Political Constitution and from the values and principles that inform it, but is also contained in various international instruments. Thus, for example, in the “Basic Principles on the Independence of the Judiciary,” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, Principle 11 states the following:

“11. The law shall guarantee the tenure of judges for the established periods, their independence and security, as well as adequate remuneration, pensions, and conditions of service and retirement.” Whereby the United Nations recommends to all the 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 be understood as also extending to the auxiliary officials of the justice system, because, 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, for the sake of achieving real and effective independence of the Judicial Branch and of the officials who administer justice, as well as their collaborators and assistants, paragraphs 6.1 and 6.4 establish the following:

“6.1 The professional exercise of judicial functions gives the judge the right to remuneration, the level of which shall be determined so as to shield him or her from pressures intended to influence his or her rulings and, in general, his or her jurisdictional conduct, thereby altering his or her independence and impartiality.

6.4 In particular, the statute shall ensure the judge who has reached the legal age for cessation of his or her functions, after having exercised them professionally for a determined period, the payment of a retirement pension, the amount of which shall be as close as possible to his or her last remuneration from judicial activity.” The cited instrument aims to achieve a real and effectively independent Judicial Branch, which is a guarantee in favor of the citizenry. So much so that the adequate remuneration and pension of judges and judicial assistants, in the terms expressed therein, constitutes the due and reasonable consequence of the exercise of a delicate function, one of great difficulty and responsibility.

Also, the “Statute of the Ibero-American Judge,” approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32, echoes the same principles already cited, by establishing:

“Art. 32. Remuneration.

Judges must receive sufficient, irreducible (irreductible) remuneration, commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” And, in Article 33, it provides:

“Art. 33. Social Security.

The State must offer judges access to a social security system, guaranteeing that they will receive, upon completing their years of service due to retirement, illness, or other legally provided contingencies, or in case of personal, family, or property damages arising from the exercise of their office, a dignified pension or adequate compensation.” It must be borne in mind that retirement and pension form part of the Economic, Social, and Cultural Rights contained in the International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification, and accession by the United Nations General Assembly, in its resolution 2200 A (XXI), of December 16, 1966. These regulations have also been welcomed in Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the issue of the independence and irremovability of judges. Regarding the issue of judges' salaries, said Council recommended:

“…it is generally important (and especially in the case of new democracies) to establish specific legal provisions that guarantee judges' salaries protected against reductions and that ensure de facto ‘the increase of salaries in line with the cost of living’.” These recommendations are fully applicable to the issue of the pensions and retirements of judges and of judicial servants in general, since they are intimately related to the principle of independence of the Judicial Branch, as has already been set forth.

But this matter has been regulated in such terms not only in the international sphere, but has also been subject to regulation internally within the Judicial Branch, with considerations similar to those stated.

Indeed, the Full Court approved the Statute of Justice and Rights of the Users of the Judicial System, in whose Articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges, in its different facets. In Article 24, concerning the material conditions of judicial independence, it establishes that the State must guarantee “the economic independence of the Judicial Branch, through the allocation of an adequate budget to cover its needs and through the timely disbursement of budget appropriations,” which is intimately related to the provisions of the already cited Article 177 of the Political Constitution, regarding the constitutional allocation of a minimum of the Ordinary Budget to the Judicial Branch, as a manifestation of that independence.

Likewise, Article 49 of the cited Statute also enshrines, like the international instruments examined, the principle of the irreducible (irreductible) salary of the judge: “Judges must receive sufficient, irreducible (irreductible) remuneration, commensurate with the importance of the function they perform and with the demands and responsibilities it entails.” As already explained, this special regulation has its foundation in the independence of the Judicial Branch, which must also be extended to the issue of the pension or retirement of judges and judicial support personnel, because 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 the subject of express regulation in the Statute, Article 20, by establishing that “[t]he other Branches of the State and, in general, all authorities, institutions, and national or international organisms, must respect and make effective the independence of the judiciary.” And precisely, the unilateral meddling of the legislative organ in the organization and functioning of the Judicial Branch, whether by creating, modifying, or suppressing judicial or administrative organs or competencies, is constitutionally inadmissible, as this constitutes a flagrant violation of the principle of judicial independence.

Finally, it is worth noting that the independence of the Judicial Branch is a principle that has a particular and specific nature, distinct from that of the other Branches of the State, since it consists of a protective shield against the meddling of political power, from which the other Branches of the State are not protected. This is because the Judicial Branch is the one that administers justice, and this must be impartial and free from any external pressure. And, at this point, economic pressure, whether through salary or emolument, or through the amount and conditions of the retirement or pension of judges and other judicial assistants, plays a transcendent role in achieving real and effective independence of the Judicial Branch.

Based on the preceding 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 Judicial Branch, in the terms expressed.

In this vein of ideas, just as when the legislative consultation was heard regarding the bill for the Law of Integral Reform to the Various Pension Regimes and Related Regulations, today approved by Law No. 9544 of April 24, 2018, denominated as “Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch, of May 5, 1993, and its amendments,” the reasons of the dissenting vote are maintained. That legislative consultation was resolved by Judgment No. 2018-005758 at 3:40 p.m. on April 12, 2018, in which the different complaints regarding Article 239 of the law now in question were addressed. On that occasion, the legislative process was reviewed insofar as it creates an Administrative Board of the Pension and Retirement Fund of the Judicial Branch, which it defines as an organ of the Judicial Branch, with functional, technical, and administrative independence, to exercise the powers and attributions that the law grants it, an organ to which functional independence is granted and to which a series of competencies is assigned, among others, increasing the worker contribution to the Pension Fund and hearing retirement applications, which implies a modification in the structure of the Judicial Branch. In the same way, competencies are subtracted from the Superior Council of the Judicial Branch; and, furthermore, in Article 240 of the bill, the Full Court is conferred the obligation to issue regulations for the election of the members of that Administrative Board, thus assigning it a competency that it currently does not have. The aforementioned provisions of the Law state:

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

The Board is responsible for:

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

Based on the result of the actuarial studies, and with authorization from the Superintendency of Pensions, the Administrative Board may modify the initial parameters established in this law regarding the eligibility requirements, the benefit profile, as well as the contributions and quotas of the judicial servants and of the retirements and pensions provided for in the law, whenever this is necessary to guarantee the actuarial balance of the Regime.” The Board shall have instrumental legal personality to exercise the powers that the law assigns to it, as well as to exercise the judicial and extrajudicial representation of the Fund.

It shall be financed by an administrative expenses commission that shall arise from deducting five per thousand from the salaries earned by judicial servants, as well as from the retirements and pensions chargeable to the Fund. These resources shall be used to pay the per diem allowances of the members of the Administrative Board, the salaries of its personnel, and, in general, its administrative expenses. Idle resources shall be invested in accordance with the provisions of Article 237 of this law.

Article 240- The Administrative Board shall be composed of three members who shall be democratically elected by the judicial collective, as well as three members appointed by the Corte Plena, with a gender perspective in both cases. Each principal member shall have an alternate member to substitute for them in their absences, who must meet the same requirements as the principal member.

Those who make up the Board shall hold their positions for five years, after which they may be reelected, all in accordance with the regulations that shall be issued for that purpose by the Corte Plena, after a hearing granted to the trade union organizations of the Judicial Branch.

In the first ordinary session, the Board shall designate the person who shall preside over the sessions; this designation shall be made for a temporary period of one year, alternating each year between the representatives of the judicial collective and the Corte Plena. Furthermore, it shall designate the person who shall substitute for them in the case of absence. The presiding person shall have a casting vote in the event of a tie.

The members of the Administrative Board shall not receive any per diem allowance but shall have the necessary leaves of absence to attend the sessions. To be a member of the Board, one must meet the following requirements, which must be documented and demonstrated before the Superintendencia de Pensiones (Supén):

• a)Hold a university degree in fields related to the administration of a pension fund and be a member of the respective professional association, when applicable.
• b)Be of recognized and proven honorability.
• c)Have knowledge and at least five years of experience in professional or managerial activities relevant to the administration of a pension fund, such that all members of this body possess the skills, competencies, and knowledge that allow them to carry out the analysis of the risks affecting the Board and the Fund.

The following persons may not be members of the Board:

• 1)Persons against whom a final criminal conviction for the commission of a willful criminal offense has been entered in the last ten years.
• 2)Persons who in the last ten years have been disqualified from holding an administration or management position in the Public Administration or in entities supervised by the Superintendencia General de Entidades Financieras (Sugef), the Superintendencia General de Seguros (Sugese), the Superintendencia de Valores (Sugeval) and the Superintendencia de Pensiones (Supén).

The composition of the body shall guarantee the equal representation of both sexes, ensuring that the difference between the total number of men and women is no more than one.” From the reading of Article 239, transcribed above, it is clear that it creates a new body within the structure of the Judicial Branch, called “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial,” which is granted complete functional, technical, and administrative independence to exercise the faculties, competencies, and powers granted by law, listed in subsections a), b), c), d), e), f), g), h) and i) of that same article, for the fulfillment of its duties, for which it shall have instrumental legal personality. Thus, an administrative body is created ex novo and assigned within the structure of the Judicial Branch, with specific competencies and powers; and, concomitantly, competencies and powers previously granted—by formal law—to the Consejo Superior del Poder Judicial are removed and eliminated. This circumstance alone, for the reasons stated, obligates the legislative body to necessarily consult the bill with the Judicial Branch, under the terms set forth in Article 167 of the Political Constitution, since it modifies the administrative organization of the Judicial Branch, with the creation of a new administrative body and the suppression of competencies of the Consejo Superior in favor of that newly created body, which clearly affects the independence of that Branch of the Republic.

The same must be said regarding Article 240 of the law, insofar as it addresses matters pertaining to the administrative organization of the Judicial Branch, concerning the composition and designation of the members of the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, their term of office, the designation of the person who is to preside over it, and the requirements to be a member of that Board, among others. It is noteworthy that even though 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 by means of law it is imposed with the obligation to regulate matters relating to the term of office of the members of the Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial, without the substitute text of the bill, which was finally approved in the First Debate, having been consulted with the Supreme Court of Justice, implies a serious intrusion into the competencies of the highest-ranking body of the Judicial Branch, affecting the organization of that Branch of the Republic, in contravention of the mandatory consultation prescribed in Article 167 of the Political Constitution; and, therefore, an injury to judicial independence. On its face, the cited regulations take away from the President of the Supreme Court of Justice, and consequently, from the President of the Consejo Superior del Poder Judicial, the competence given to him by the Organic Law of the Judicial Branch to administer the Fondo de Pensiones y Jubilaciones del Poder Judicial, precisely in accordance with the investment policies established by the Corte Plena, as currently set forth in Article 81, subsection 12.

Notwithstanding the above, the substitute text of the bill, which was adopted by the Special Commission at the session of July 27, 2017, was not consulted with the Supreme Court of Justice, despite containing a series of regulations that affect the organization and functioning of the Judicial Branch. However, as stated in the majority opinion, on folio 2625 of the legislative file it is recorded that, in response to a motion approved on July 27, 2017, by the Special Commission, through official communication number AL-20035-OFI-0043-2017 of July 31, 2017, the Head of the Commissions Area of the Legislative Assembly granted a hearing to the Judicial Branch regarding the affirmative majority report, based on which, the Supreme Court of Justice issued its opinion through official communication number SP-253-17 of August 10, 2017, as recorded on folios 2759 to 2807 of the legislative file. This means, then, that the Judicial Branch was indeed consulted and expressed its opinion regarding the substitute text approved by the Special Commission on July 27, 2017, which occurred even before said text was made known to the Plenary.

Despite this, that text was not the one approved in the First Debate by the Legislative Plenary on October 30, 2017, published in Alcance N° 268 to Digital Gazette N° 212 of November 9, 2017, since the one approved was a substitute text introduced by motion via Article 137 of the Regulations of the Legislative Assembly. This latter text was not consulted with the Supreme Court of Justice, as would have been appropriate, according to the analysis supra, pursuant to the provisions of Article 167 of the Political Constitution.

As argued by the plaintiffs, a constitutional violation was incurred in the legislative procedure. In this regard, it is important to note that this Constitutional Court has jurisdiction to hear and rule on defects in the formation of laws when a substantial requirement or procedure provided for in the Constitution or the Regulations of the Legislative Assembly is breached. This is in accordance with Article 73, subsection c), of the Law of Constitutional Jurisdiction, which states:

“Article 73.- An action of unconstitutionality shall be available:

…

• c)When in the formation of laws or legislative agreements, any substantial requirement or procedure provided for in the Constitution or, where applicable, established in the Regulations […] of the Legislative Assembly is violated.

…”.

Thus, according to the Law of Constitutional Jurisdiction, if what is being analyzed is a formal law approved by the Legislative Assembly, it would involve the subsequent review of laws or legislative agreements, by examining the legislative file to determine whether any essential defect was incurred in the law-making procedure. Therefore, the defect detected in the legislative procedure of Law N° 9544, called “Reform of the Retirement and Pension Regime of the Judicial Branch, contained in Law No. 7333, Organic Law of the Judicial Branch of May 5, 1993, and its Reforms,” must be declared due to the omission of consulting the Supreme Court of Justice on the substitute text approved in the First Debate, since this violates the provisions of Article 167 of the Political Constitution, by affecting the administrative organization of the Judicial Branch, through the creation of a new administrative body within its structure, granting it substantial competencies regarding pensions and retirements; and, at the same time, suppressing competencies previously granted by law to the Consejo Superior del Poder Judicial (Articles 239 and 240 of the bill).

This Chamber, in support of the above, in Judgment N° 2001-13273, of 11:44 a.m. on December 21, 2001, when resolving a legislative consultation of constitutionality on a bill to reform the Penal Code, insofar as it modifies aspects related to the organization or functioning—merely administrative—of the Archivo Judicial, held unanimously that:

“In the same way, they modify the scope of functions of the Archivo Judicial, increasing the amount of data that must be registered. All of the above undoubtedly implies the variation of various rules concerning the functioning and organization of the Judicial Branch. Despite the above, the Legislative Assembly omitted to carry out the respective consultation with the Supreme Court of Justice (at least it is not recorded in the certified copy of the file sent by the President of the Directorate), without those aspects having previously been included in the texts consulted with the Supreme Court of Justice, therefore this Chamber considers that a violation of the duty imposed in Article 167 of the Political Constitution was incurred regarding the functional independence recognized by the framers for the Judicial Branch, and in that sense it must be understood that the procedure followed prior to the approval of the amended report is null from the constitutional point of view and must be so declared.” Note, therefore, that the defect identified was not cured in the Second Debate, even if the Law had been approved by a qualified majority, as this would only be the case if it involved the approval of a text requiring mandatory consultation with the Judicial Branch, for affecting its organization, structure, and functioning—as in this case—, and, once consulted with the Supreme Court of Justice, the legislative body persisted in approving it, diverging from the technical opinion of the judicial body. None of this occurred in the legislative procedure, since Law N° 9544 of April 24, 2018, did not even obtain the qualified vote in the Second Debate, and worse yet, the approved text was without institutional consultation. The heart of the problem before us is truly the approval—in the First Debate—of an unconsulted text, in contravention of the provisions of Article 167 of the Political Constitution, a procedural defect that is insurmountable and incurable. This is because, while it is true that the substitute text of the bill, which was adopted by the Special Commission at the session of July 27, 2017, was consulted with the Supreme Court of Justice, this was not the text that was finally approved in the First Debate, but rather a new substitute text that was not previously consulted, despite having a direct relationship with the organization, structure, and functioning of the Judicial Branch, as has been set forth. And even more so, although the previous text approved by the Special Commission at the session of July 27, 2017, was consulted with the Court, given that the latter expressed disagreement with the text, a qualified vote by the Plenary was mandatory, pursuant to Article 167 of the Fundamental Charter, which was likewise not done.

It is worth recalling that the purpose of institutional consultation is the protection of judicial independence, which is much more complex than reducing it to the protection of a jurisdictional forum. The mandatory institutional consultation must be timely, for otherwise, it would be a paper obligation that would not produce the true safeguards that the constitutional text seeks to establish between equal Branches of the Republic. The sustained holding of a contrary position, on a permanent basis, by the majority of the Tribunal cannot be sustainable over time, for even in these circumstances of inflection and implosion in the functional and budgetary independence of the Judicial Branch, it is, predominantly, to the detriment of the citizen guarantees that the Framer sought to guarantee in Article 167, and later improved with the reform of number 177 of the Political Constitution.

The Corte Plena, in Session N° 27, of August 7, 2017, Article XXX, when responding to the consultation from the Legislative Assembly regarding the Affirmative Majority Report approved by the aforementioned Special Commission, resolved:

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

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

It affects the judicial career, prosecutorial career, career of the Public Defense, and personnel in general, who, having greater burdens on their salary—four times more than in other regimes—, would receive a lesser benefit.

On the other hand, the renewal of personnel who manage to stay is affected. The Judicial Branch would have older civil servants, who remained working solely because of the reduction their income would suffer in the event of retirement.

The judicial population would be at a crossroads, where, while it is true there is a desire to opt for that right and the motivation to retire and rest, they are placed in a condition where they must evaluate their economic situation, probably forcing them to seek new sources of income to maintain their normal expenses or those acquired prior to retirement, and those natural for reasons of 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 factual limitations regarding labor reincorporation.

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

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

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

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

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

Taking into account the observations raised regarding the Bill processed under file 19922 (20035), which find support and basis in the actuarial study carried out by the IICE and based on the powers granted by Article 167 of the Political Constitution and Article 59, subsection 1) of the Organic Law of the Judicial Branch, it is considered that the consulted text does indeed affect the structure, organization, and functioning of the Judicial Branch and, in that sense, the Legislative Assembly must take into account what has been stated by the Corte Plena in relation to each aspect of the Bill under consultation, unless it has the qualified majority to depart from this binding opinion.

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

Corollary, regarding the Bill processed under file No. 19922, a negative opinion must be issued because it affects the structure, organization, and functioning of the Judicial Branch.” The final part of the cited constitutional article (167) literally states that “to depart from the opinion of the latter [The Court], the vote of two-thirds of the total members of the Legislative Assembly shall be required”; and said final text—not consulted in any case—was approved by the Legislative Assembly on October 30, 2017, with thirty-one votes (folios 4000 and 4173 of the legislative file).

And, for the second debate, it did not obtain the qualified majority, reaching thirty-four votes (folios 4437, 4608 and 4637 of the legislative file).

**B.- The legal and social dynamics that informed the reform of Article 177 of the Constitution.** It is necessary to address the majority opinion, which we consider with respect—but with equal vehemence—the reasons for which we believe they use a lax interpretation of the obligation for institutional consultation established in Article 167 of the Constitution, in addition to what has been said above. It is clear that, in general, the constitutional doctrine underlying institutional consultation is based on similar reasons: to guarantee that the legislator has the best first-hand information for legislating, that is, that they have the specific technical criterion. It is a recognition by the Constituent Power of institutional autonomies, as well as, to its highest degree, the defense of the independence corresponding to a Branch of the State or a fundamental constitutional body of the State. In complex legislative processes, such as those where there is a conflicting opinion from the Judicial Branch, a qualified majority of legislators is most required to promote those significant changes in legislation through a true consensus.

Although this Chamber, in some of its rulings, has established that institutional consultation does not proceed for draft laws (proyectos de ley) of a national or general character, this single jurisprudential criterion cannot be sufficient to dismiss the need to aggravate the legislative procedure in the Legislative Assembly when it concerns the qualified majority established in numeral 167 of the Constitution. This must be dimensioned not only regarding matters related to the institutional autonomy of the Judicial Branch, but especially regarding those concerning the direct or indirect impact on judicial independence, which is guaranteed in the Constitution through the fundamental organic structure of the State. This is especially true if, as in the case before us, there have been various defects in the legislative procedure, referred to later on.

It is clear that the criteria for denying institutional consultation based on considering a draft law to be of a national or general character cannot be used indiscriminately, especially because this classification would cover a large number of draft laws that have an impact on the national budget; in this situation, a vast majority would have a national impact that is used to establish the defense of public objectives viewed from economistic criteria. On the contrary, this minority believes that the jurisprudential criterion cited by the majority does not apply when dealing with draft laws that could affect the organization of the Judicial Branch, as a fundamental body of the State. It is clear that judicial scrutiny must be more demanding, due to the more permanent scope over the judicial function (which is universal and has full jurisdiction over all legal controversies), which expresses the fundamental functions of control, as much as and more than those of semi-autonomous and autonomous institutions, because it has a relationship with the functional specialty and independence of a branch of the Republic. The absolute weight of the fundamental institutional framework of the State must define the criteria for the examination and scrutiny that this Constitutional Court must carry out, so it cannot be examined in the same terms as for other autonomous institutions, since evidently the consequences are very different for the State and the general population. It suffices to point out Judgment No. 2017-009551 of 11:40 a.m. on June 12, 2017, which established that:

"…in general, the judicial function is universal and has full jurisdiction over all legal controversies that arise in the country. Universality refers to jurisdiction over all disputes submitted to the Courts of Justice, and even those not listed therein or in the law by virtue of the principle of hermeneutic completeness (article 153 of the Political Constitution). Universality implies jurisdiction over all individuals in dispute, including in accordance with the general principles of Public International Law and Private International Law. The Judicial Branch has jurisdiction to definitively decide on all controversies, channeling the matters in accordance with the respective procedure of the procedural iter, concluding, generally, with a judgment—the normal way of ending the process—with the status of res judicata, which is an expression of the power and function of full, universal jurisdiction, and which implies the prohibition of reopening the same controversy for discussion, to prevent the perpetuation of conflicts and their threat to peaceful coexistence in society. It is the tombstone that prohibits reopening the discussion on the same facts." The Constituent Power, of course, assigned a concrete field of action to the Judicial Branch so that it functions with independence, which is nourished by and participates in all Western thought, inspired by the principles of impartiality and justice; it simply cannot be compared to, or assimilated with, that of the lesser entities of the State. On the contrary, it is clear that Article 167 of the Political Constitution is located in consideration of its institutional importance and its functional autonomy in the grand scheme of the State.

Earlier in this same judgment, it was also established that:

"This leads to the principle of functional legality, which entails the exercise of the constitutional competencies of the State, the achievement of the core objectives of each branch without extending to those of the other independent branches of equal rank, and by each exercising the functions of checks and balances, they can control and limit the other Branches, as authorized by the Political Constitution. In accordance with the distribution of the fundamental functions of the State, when the Legislative Branch enacts laws, it is subject to the supremacy of the Political Constitution and to the limits enshrined by the Political Constitution, which definitively conditions its regularity and permanence over time, in addition to not being able to apply them directly; as for the Executive Branch, it could not fail to apply and implement the provisions dictated to it by the Legislative Branch, nor fail to observe the provisions of the fundamental Charter; finally, the Judicial Branch could not resolve against the grain of the norms applicable to a specific case, except for conflict with the principle of normative hierarchy, the principle of the supremacy of norms, laws, treaties, and the Political Constitution, remaining subject to them. In accordance with articles 10 and 152 and following of the Political Constitution, it must ensure the regularity of all legislation, so it could not apply invalid or unconstitutional norms, since in addition to the fundamental function of imparting justice, it must ensure that no action or omission violates the essential principles of any social and democratic State of Law, among them: the principles of legality, normative hierarchy, respect for the fundamental rights and freedoms of the population. Consequently, the Judicial Branch ultimately interprets and applies the Political Constitution, having the control of constitutionality of norms and omissions—the monopoly of rejection—when legislation is contrary to it, as well as when fundamental rights are violated, because naturally it is the ultimate guarantor of the principle of legality, the ultimate defender of the ends and objectives of the State and of the realization, through the Law on a case-by-case basis, of the well-being of the human being." Now, the judgment addresses the generalities of the Fund and its legal development from the beginning of the last century, in tune with Judgment No. 2018-5758 of 3:40 p.m. on April 12, 2018, to explain the legal development of social security and the previsional regime (régimen previsional) of the Judicial Branch. However, reference should have been made to the fact that the system's shortcomings also served as a spur at the constitutional level, since others were conceived to guarantee greater institutional stability and in favor of judicial independence. In this way, reference must be made to the materialization of one of the most important achievements for the country's institutional framework, which was obtained with the reform of Article 177 of the Constitution, through which the economic independence of the Judicial Branch was guaranteed. It is therefore appropriate to state that if the institutional and social dynamics of that time were important, even more so were those of the amendment to the Political Constitution, which are not negligible at all, as they were aimed at strengthening the Judicial Branch, and, with the same weight, producing protection within the civil service. The economic and legal dynamics say as much or more, because despite the legal achievements and due to the number of problems that existed in the period prior to the constitutional reform, a substantial improvement to that economic independence of the Judicial Branch in the Political Constitution itself was conceived from within the Full Court (Corte Plena) and was embraced by the Legislative Assembly. There is no doubt that the protections established by the derived Constituent Power in the reform are equally distributed over the stability of the judicial civil service. Thus, limitations on facilities and infrastructure, the provision of better work tools, improvement of salaries, more resources for the Retirement and Pension Regime of the Judicial Branch (Régimen de Jubilaciones y Pensiones del Poder Judicial), among others, were contemplated. The claims of the petitioners should have found an echo in this avenue of the action of unconstitutionality, some of which are listed at the beginning of this dissenting vote. Judicial independence is defended with the tools precisely provided by the Constituent Power, within which the most consolidated democracies in the world dedicate themselves to producing instruments for the protection of judicial and economic independence, one of them being the qualified vote in case a draft law affects the organization and functioning of the Judicial Branch.

In Judgment No. 2006-07965 of 4:58 p.m. on May 31, 2006, this Chamber established that:

"VI.- EXCEPTIONAL CHARACTER OF THE MATERIALLY ADMINISTRATIVE FUNCTION OF THE JUDICIAL BRANCH. Although the Judicial Branch is responsible, par excellence, for the exclusive exercise of the jurisdictional function—as noted in the preceding considerando—the truth is that it also exceptionally or extraordinarily exercises functions of an administrative nature. In that sense, it is necessary to point out that the administrative function is not constitutionally or legally assigned exclusively to a single organ or entity, nor does it possess a typical content that characterizes it, since, as doctrine has rightly pointed out, it is easier to describe the public administration than to define the administrative function due to its heterogeneous character. It is clear that the exercise of the materially jurisdictional function requires and necessitates an entire administrative infrastructure that allows it to be exercised in accordance with the constitutional precept, that is, promptly and completely. This is what has been called the 'public service of the administration of justice.' Thus, the auxiliary administrative support or apparatus that allows judges and courts to issue their rulings makes up said service, whereby the concept refers to the administrative profiles of the jurisdictional function, such as the organization and functioning of the courts, logistics—supplies and provisions—, the efficient and effective handling, management, or administration of judicial offices to avoid undue or unjustified delays in the processing of the case, the administrative function exercised by the administrative organs of the Judicial Branch (e.g., administrative resolutions of the Full Court, the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), the Judicial Inspection Tribunal (Tribunal de la Inspección Judicial), the Council of the Judicature (Consejo de la Judicatura) and, in general, of the various administrative departments—Executive Directorate, Procurement Department, Personnel, etc.—) and auxiliary bodies attached to it such as the repressive police exercised through the Judicial Investigation Agency (Organismo de Investigación Judicial), the exercise of public prosecution by the Public Ministry (Ministerio Público), and the provision of free defense through the Public Defense. However, although this materially administrative function is deployed by the support apparatus or organization for the jurisdictional function, it must be understood in a strictly exceptional sense; that is, only that which is necessary and suitable to assist in the exercise of the materially jurisdictional function is admissible, and no other. By reason of the foregoing, by application of the constitutional principle of reservation or exclusivity of jurisdiction, it is imperative that the Judicial Branch must use and allocate the majority of its resources to the exercise of a materially jurisdictional function.

VII.- AUTONOMY AND ECONOMIC INDEPENDENCE OF THE JUDICIAL BRANCH. One of the great historical achievements of the Costa Rican Constitutional State of Law was the economic autonomy of the Judicial Branch achieved through the partial reform of the Political Constitution of November 7, 1949, by means of Law No. 2122 of May 22, 1957. This law added a second paragraph to the original version of Article 177 of the Political Constitution, which provided the following:

'(…)

In the draft budget, the Judicial Branch shall be assigned a sum of no less than six percent of the ordinary revenues calculated for the economic year. However, when this sum proves superior to that required to cover the fundamental needs budgeted by that Branch, the aforementioned department shall include the difference as an excess, with a national investment plan, so that the Legislative Assembly may determine what is appropriate (…)'.

This partial reform to the Constitution strengthened, in accordance with Article 9 which proclaims the separation of functions, the independence of that Branch of the Republic. The constitutional amendment arose from the proposal formulated on September 6, 1956, by then-Magistrate Evelio Ramírez to the Full Court, the collegial body that approved it in the session held that same day. In the justification for the constitutional modification—which would later become the preamble for the reform in the legislative procedure—Magistrate Evelio Ramírez insisted on the need to assign to the Judicial Branch a minimum or 'sum of no less than six percent of the ordinary revenues calculated for the economic year,' to overcome the lamentable situation of that Branch of the Republic, having received in the seven years preceding 1956 only an average percentage of 2.75% in relation to the General Revenue Budget. The manifest purpose of the Magistrate who conceived the constitutional reform and of the Full Court in accepting his proposal was to have greater financial resources to diversify and strengthen the different jurisdictional orders, increase the number of courts and tribunals and the personnel necessary to meet the demand for service, reform and improve processes, provide adequate infrastructure and material resources to the courts and tribunals, improve the salaries of those dedicated to the delicate and difficult task of administering justice, and their retirement or pension regime, all in the interest of ensuring a more prompt and complete justice. In that sense, Magistrate Evelio Ramírez made considerations such as the following:

'(…) the Supreme Court of Justice, knowing better than anyone the true needs of the Judicial Branch, would draft its own preliminary budget proposal considering the factors that, in its judgment, demand economic variations within an honest, rational, and fair criterion. And it would not only attend to the proper installation of its multiple offices—which today present an almost ruinous appearance throughout the Nation—but would also supply them with typewriters, adequate furniture, and the other material means indispensable for working with the greatest possible efficiency. Furthermore, all judicial servants could be paid more equitably (…) The Retirement and Pension Fund itself—whose stability is seriously threatened—could be reinforced from that global allocation (…) The average percentage that has corresponded to the Judicial Branch in the last seven years has been 2.75 percent, in relation to the General Revenue Budget (…) Experience has shown that the indicated percentage is entirely insufficient for the adequate functioning of the Judicial Branch. To realize this, one only needs to look at the inadequate buildings occupied by almost all the courts of the Republic, the slowness with which various judicial matters are processed, due to the scarce number of courts and personnel available in those currently operating, the insufficient number of typewriters and other furniture of imperious necessity, the low salaries of judicial servants, etc., etc. (…)'.

For its part, the special legislative commission appointed to issue a report on the draft reform of Article 177 of the Constitution, in its first legislature, in its report of October 9, 1956 (visible on folios 20-21 of the legislative file), estimated the following:

'This constitutional reform—with which the autonomy of the Judicial Branch in the economic aspect will be definitively secured—will make it possible in the future to find an adequate solution to the multiple problems currently confronting that Branch due to the limitation of the economic resources assigned to it in the national budgets. These problems come from far back and are aggravated day by day as a consequence of the growth and development of the population, which increasingly demands administration of justice services. Judicial offices do not have sufficient personnel to deal with the many problems that arise daily, and materially, they are housed, with very few exceptions, in totally inadequate premises and without sufficient furniture or equipment (…) The remuneration of judicial servants is, on the other hand, meager, such that the judicial career offers no stimulus or incentive to those who wish to begin in it, and this often drives away individuals with vocation and capabilities who could, under other conditions, render their services as Alcaldes, Judges, or Magistrates.' Consequently, the guiding idea that inspired the constitutional reform of 1957 was to strengthen the organization and functioning of the Judicial Branch, so that it could efficiently and effectively exercise its essential function of imparting or administering justice. Under this understanding, any provision of the ordinary legislator tending to assign to the organization of the Judicial Branch organs that exercise materially administrative competencies foreign 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 employment, even if only in a small percentage, of the minimum budget guaranteed to it for other purposes. It can be affirmed, then, that the 2nd paragraph of Article 177 of the Political Constitution, added by Law No. 2122 of May 22, 1957, is a clear institutional guarantee, since, by consolidating the financial autonomy and independence of the Judicial Branch, it guarantees an effective exercise, by any person, of the fundamental right established in Article 41 of the Political Constitution to access the jurisdiction and obtain prompt and complete justice." The assertion that essential administrative competencies of organization and those connected with the jurisdictional function are not being subtracted is very relative, if, as explained previously, an organizational aspect and the administration of personnel of the Judicial Branch are being modified. By this, the history of the constitutional amendment is ignored, where it was indeed contemplated as justification for passing the reform to Article 177. The majority affirms that it concerns the same essential content of a legal institution, but in doing so, the law removes the administration of pensions from the Superior Council of the Judicial Branch, to grant it to a managing board (Junta Administradora) of the Retirement and Pension Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial). It is true that it remains within the Judicial Branch, but now in a decentralized body (órgano desconcentrado), which evidently touches an essential part of the governance of the Judicial Branch (Articles 152 and 156 of the Constitution). There is a schism that produces an impact on the organization of the Judicial Branch, if one wishes in a broad sense, on its capacity to organize itself, on the management and administration of the fund, for the exercise of the social security rights of the personnel of the Judicial Branch, which, it is worth saying, is contrary to the criterion of the Full Court, due to the omitted manner of conducting an institutional consultation, and for ignoring its opinion against the principle of the functional legality of a Branch of the Republic. Remember that the reform of Article 177 of the Constitution came attributed with the vision of reinforcing judicial independence, including that of its officials, within which the administration of the pension fund would be included. In fact, the recognition of something so important, which was timidly inserted later into the Political Constitution of 1949, did not go so far as to explicitly include the lifetime tenure (irreductibilidad) of judicial officials' salaries, as in other latitudes; however, it has functioned in our country because it allows the Judicial Branch to enjoy the indices of judicial independence that Costa Rica has enjoyed comparatively at a global level, which is clearly the result of the economic independence of the Judicial Branch. This has been partly thanks to the recognition of the public employment regime that was consolidated throughout the republican life of this country.

Judgment No. 1996-03575 of 11:18 a.m. on July 12, 1996, indicated 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 the Republic, given that these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—are the most capable of determining their needs and knowing their particular conditions." By Judgment No. 1998-005795 of 4:12 p.m. on August 11, 1998, it was established that:

"From the provisions of Article 154 of the Political Constitution, -which states-:

'The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities on it than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in the knowledge of the matters submitted to their judgment." In relation to this official, it must also be recognized that there is double protection of his investiture, since the independence of the judge—as a guarantee for the parties involved in the matter sub judice—is both external and internal, in the sense that he is protected from influences and incidences—both external and internal—that may sway him in one direction or another in the decision of a specific case submitted to his knowledge, so that they rule with strict adherence to the provisions of the applicable legal framework; in other terms, the judge is protected so that neither the parties involved in the proceeding, third parties, higher-graded judges, "influential" members of the Branches of State, even the Judicial Branch, can influence his decision, so it is even less admissible to have the obligation—imposed by the superior in grade—to decide a specific case in a particular manner or to coerce the adjudicator in that sense. The guarantee of independence of judges, more than a guarantee for these officials—which indeed it is—constitutes a guarantee for individuals (parties to the proceeding), in the sense that their cases will be decided with strict adherence to the Constitution and the laws.

By Judgment No. 1998-005798 of 16:21 hours on August 11, 1998, this Chamber established that:

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

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

2.- ..." The independence of the Judicial Organ (sic) is posited toward the external. The Judicial Organ (sic) is independent vis-à-vis the other Branches of State, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, since they are the ones who must make the function entrusted to the former a reality; it is to this independence that I will refer below. The independence that truly must matter—without diminishing the importance of that of the Judicial Organ (sic)—is that of the judge, related to the specific case, because it is this that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the judges who comprise it also being so, but it may well occur that the Organ as a whole has normatively guaranteed its independence, but its members are not independent, for multiple reasons." This is no small thing, since the organization and administration of the judicial function not only should not be limited to the jurisdictional part as the majority understands it, but this is complemented by other organizational functions, which should be respected as befits a Branch of the Republic. As stated earlier, the amendment to the Political Constitution contemplated not only jurisdictional aspects, but also operational aspects of the Judicial Branch, so it would have been contemplated by the original Constituent in Article 167, because from the bosom of the Full Court in 1956, and in the Legislative Assembly in 1957, it adopted, from that foundational era of the Second Republic, responding to the needs of officials in their salaries and pension regime, a core precept for Costa Rican democracy.

It is evident that the Pension and Retirement Fund of the Judicial Branch formed an essential part of the economic independence of the Judicial Branch of that era, and must continue to be so in ours, according to the doctrine of progressive, evolutionary, and non-regressive development of social rights. The derived Constituent, by accepting the vision of the Full Court, took a decisive step to accommodate management independently and autonomously from the rest of the political branches, which in turn allowed said management and governance to be carried out within the legal and constitutional purposes of the administration of justice. Nor can it be asserted, as the majority says, that the recognition of the constitutional percentage of 6% was smooth and without any problem; on the contrary, what is characteristic of this is that the relationship between branches has been stony, rough, abrupt, such that every budget has been obtained with great effort or timely negotiation by the representatives and authorities of the Judicial Branch. In fact, the Constituent foresaw such a possibility of negotiation and consideration by establishing a second possibility of additional revenues for investment plans, among other things. Article 177 of the Political Constitution, with the 6% of the ordinary revenues of the economic fiscal year of the Republic, is an aspect that has served as a stimulus for the legislator to use the orbit of the Judicial Branch as an aggregating factor for administrative institutions alien to the judicial function. Precisely, Judgment No. 2006-07965 of 16:58 hours on May 31, 2006, cited earlier, concludes with the declaration of unconstitutionality of norms of the Notarial Code, for establishing an organ of an administrative nature such as the Office of the Notarial Directorate within the Judicial Branch in violation of the constitutional principles of separation of functions, reservation or exclusivity of jurisdiction, independence and financial autonomy of the Judicial Branch, and the right to a prompt and fulfilled justice of the inhabitants of the Republic.

In continuity with Judgment No. 2017-09551 of 11:40 hours on June 21, 2017, it was also indicated that:

"For all these reasons we must recognize that in order to rationally organize work, with effectiveness, efficiency, simplicity and celerity, every primary function must be accompanied by the other functions—non-primary for the constitutional organ—and be aligned toward the primary function; it is thus how it must be recognized that both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function lies the administrative function of personnel, agents and public servants, etc. Evidently, in the Costa Rican context it would be a serious contradiction to move against a long legislative tradition of entrusting attributions to a single Branch (which in other latitudes does not exist), but thinking about guaranteeing those horizontal controls in an independent Judicial Branch." Therefore, if matters related to the pensions and retirements of the Judicial Branch were included as part of that economic independence of the Judicial Branch as a substantive issue since 1956, it is for the undersigned an additional reason to seek the application of Article 167 of the Political Constitution, since the change of scheme for a deconcentration of the administering organ was modified by a later law. This opens the bad precedent that, in the future, transitory majorities in the Legislative Assembly may encroach upon other aspects of the management of Judicial Branch personnel.

Another reason is that a reinforced majority guarantees not only judicial independence from an institutional perspective, but also for the person of the judge individually considered, in whom the economic, social and cultural rights, established through a social security and pension regime, are affected. It cannot be denied that the Judicial Branch forms part of a whole, the "State"; its strategic and key position within its organization must also be made felt, with the public functions of its officials who are highly specialized and attached to the Law, as was described earlier in the background of this Court, and whose function is final in the resolution of conflicts and as a pacifier thereof. This clearly has a cost and sacrifice for its personnel, which must be compensated by the "State", but even more so in a functional democracy like the Costa Rican one, which must assume not only the economic part of its sustenance, but also its protection.

Judicial independence has the purpose of guaranteeing judicial impartiality, which is shared with the majority of the Court, although not with the clarity that this minority would desire, since the problem of the reform of Article 177 of the Political Constitution crystallized the deeply felt need to protect in general terms the institutionality and administration—also—of everything related to the personnel of the Judicial Branch, which should be zealously safeguarded, and from which the legal opposition of the head of the Judicial Branch cannot be dispensed, in the face of the regressive effects of legislation that may be produced in the future. The constant rule of the importance of protecting the remuneration and matters related to the pension regime of judges, of their officials, in the most important legal systems in the world must be brought up.

Thus, the undersigned magistrates consider that Law No. 9544 of April 24, 2018, contains essential defects in the legislative procedure that affect it in its entirety, consisting of the lack of consultation with the Judicial Branch on the text approved by Parliament by an absolute and not qualified majority, which affects it in its entirety (Article 167 of the Political Constitution), by affecting its organization, structure, functioning and independence; and, with this, it is contrary to the Law of the Constitution. For this reason, it is inconsequential—for the undersigned adjudicators—to proceed to analyze the rest of the substantive allegations formulated by the claimants against the substantial content of the law, except in those instances where it was required to take a position so that there would be a vote in full conformity (Article 60.2 of the Civil Procedure Code), which is reflected in the judgment of the majority of this Chamber." In this manner, the undersigned magistrates Salazar Alvarado, Garita Navarro and magistrate Jara Velásquez, leave our dissenting vote recorded.- Luis Fdo. Salazar A. José Roberto Garita N.

Rosibel Jara V.

1 *CO* Res. Nº 2022-010593 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las once horas y cincuenta minutos del once de mayo de dos mil veintidós.

Acción de inconstitucionalidad promovida por Mario Alberto Mena Ayales, mayor, casado dos veces, jubilado judicial, abogado, cédula de identidad nro. 1-525-362, vecino de San José, en su condición de presidente de la Asociación Nacional de Empleados Judiciales, contra el artículo 224 bis de la Ley Orgánica del Poder Judicial, reformado por la Ley nro. 9544 del 24 de abril de 2018.

Resultando:

1.- Por escrito recibido en la Secretaría de la Sala a las 14:43 horas del 3 de noviembre de 2021, el accionante solicita que se declare inconstitucional el artículo 224 bis de la Ley Orgánica del Poder Judicial, reformado por la Ley nro. 9544 del 24 de abril de 2018. Alega, al efecto, que el Consejo Superior, en la sesión nro. 51-19, celebrada el 4 de junio de 2019, artículo XLVII, de conformidad con lo establecido en los artículos 81, inciso 12, y 226 de la Ley Orgánica del Poder Judicial y el Transitorio I de la Ley Nro. 9544, así como el acuerdo adoptado por Corte Plena en sesión nro. 53-18 del 19 de noviembre de 2018, articulo XXI, por mayoría, reconoció para efectos de anualidades y jubilación a la licenciada Ana Ivannia Barrantes Venegas, 27 años, 9 meses y 7 días, laborados para la Ministerio de Trabajo y Seguridad Social, a partir del 24 de marzo de 2017, con la obligación de reintegrar al Fondo de Jubilaciones y Pensiones del Poder Judicial la suma de 158.084.040,32 (ciento cincuenta y ocho millones ochenta y cuatro mil cuarenta colones con treinta y dos céntimos). Ante la anterior gestión, la licenciada Barrantes solicitó que se le indicara sobre una futura jubilación, por lo que el máster Oslean Mora Valdez, Encargado de Apoyo Administrativo de la Junta Administradora del Fondo de Jubilaciones y Pensiones, contestó que la Ley Orgánica del Poder Judicial, en la reforma presentada por la Ley N°. 9544 en su artículo 224 bis, establece la posibilidad de acogerse a una jubilación anticipada conforme a lo ahí previsto. Dicha norma establece, como uno de los requisitos jubilatorios, el haber laborado al menos 20 años para el Poder Judicial, siendo que en caso de no cumplir con los requisitos del Transitorio VI de la Ley 9544, la persona funcionaria judicial deberá acogerse a las nuevas condiciones impuestas en dicha reforma, es decir, que aun cuando la persona tenga más de 31 años de servicio de trabajo para el Estado, como en la situación particular de la licenciada Barrantes -y de otros funcionarios judiciales-, a la que de manera expresa le fueron reconocidos “para efectos de anualidades y jubilación... 27 años, 9 meses y 7 días, laborados para la Ministerio de Trabajo y Seguridad Social”, por no poseer los 20 años de trabajo para el Poder Judicial, no podría acogerse de ninguna manera al beneficio de jubilación, ya que deberá contar con 65 años de edad y ajustarse al inciso b) del artículo 224 bis de la Ley. Acusa que, en consecuencia, no solo el ente administrativo incurrió en una afirmación que creó una expectativa jubilatoria falsa a la funcionaria, al reconocerle de manera expresa los años de servicio para efectos de anualidades y jubilación, haciéndola incurrir en una erogación considerable de dinero, sino que, además, la norma impugnada, así reformada, violenta el principio de patrono único ya que olvida que tanto el Poder Judicial como el Poder Ejecutivo -dentro del que se encuentra el Ministerio de Trabajo y Seguridad Social- forman parte de un único patrono, el Estado, por lo que la aplicación de la norma no puede ser en perjuicio del funcionario ni tampoco aplicarse de manera desigual entre iguales. Por su parte, la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial solicitó un informe a la Dirección Jurídica para que se pronunciara al respecto, por no existir precedentes sobre el tema, siendo que el máster Rodrigo Alberto Campos Hidalgo, Director Jurídico interino y la máster Argili Gómez Sui, Subdirectora Jurídica interina, mediante criterio N° DJ-C-208-2021 del 20 de abril de 2021, informaron lo siguiente: “(...) La Ley Orgánica del Poder Judicial, en la reforma presentada por la Ley N°. 9544 en su artículo 224 bis establece la posibilidad de acogerse a una jubilación anticipada conforme a los siguientes preceptos: El cumplir al menos 20 años de laborar para el Poder Judicial es uno de los requisitos para obtener el beneficio de la jubilación, el cual debe cumplirse con el fin de obtener la opción de una jubilación anticipada. Se parte del hecho de que su persona no cumplió con los requisitos del transitorio VI de la Ley 9544, en razón de lo cual se debe acoger a las nuevas condiciones impuestas en dicha reforma. De tal forma, la Ley establece que las mujeres cotizantes al FJPPJ podrán jubilarse a la edad de 60 años cumplidos para una jubilación anticipada (art. 224 bis) o a los 65 años para una jubilación ordinaria (art. 224). Dado lo anteriormente detallado, aunque en su caso cuenta con más de 31 años de servicio de trabajo para el Estado, no posee los 20 años de trabajo para el Poder Judicial en razón de lo cual no cumple con los requisitos de Ley establecidos para obtener el beneficio de jubilación anticipada. De tal manera, al realizar un análisis superficial de su situación, la opción que le permitiría obtener el beneficio de jubilación es contar con 65 años de edad y ajustarse al inciso b) del artículo 224 bis de la Ley... b) Si el retiro se produjera al cumplir el servidor sesenta y cinco o más años de edad, pero antes de cumplir treinta y cinco años de servicio, la jubilación se acordará en proporción a los años laborados, siempre que el número de años servidos no sea inferior a veinte...”. Acusa que, como puede observarse, el Poder Judicial le reconoció a la servidora Barrantes los años de servicio laborados en otra institución estatal, a sabiendas “que las expectativas de jubilación para la gestionante se ven limitadas por la normativa aludida, toda vez que para el momento en que esta cumpla 60 0 65 años de edad carecerá del requisito de prestar veinte años de servicio en el Poder Judicial, requisito indispensable para optar por una pensión anticipada u ordinaria...”, dado que, no cumplirá con el período de 20 años laborados de forma exclusiva para el Poder Judicial. Plazo que fue impuesto sin razonamiento técnico que lo sustente. Indica que la reforma a la norma resulta desigual e incluso antojadiza, ya que no cuenta con sustento técnico para el establecimiento del plazo mínimo de servicio judicial fijado, limitando al derecho que tiene todo trabajador a jubilarse, máxime al haber brindado su tiempo laboral a un mismo patrono. Por su parte, la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, en la sesión nro.19-2021, celebrada el 10 de mayo de 2021, acordó: “Tener por rendido el criterio jurídico N° DJ-C-208-2021 del 20 de abril de 2021,... 2) Remitir el criterio de cita a conocimiento de la señora Ana Ivania Barrantes Venegas, servidora judicial. 3) La Dirección de la JUNAFO tomará nota del criterio jurídico para futuras consultas relacionadas. Se declara acuerdo firme”. Señala que de lo anterior se deduce que el Poder Judicial, en su condición de Estado-patrono, violenta la expectativa jubilatoria de la persona servidora judicial que no haya laborado al menos 20 años en la institución, aun cuando lo haya hecho en otra, también perteneciente al Estado y aun cuando se le haya reconocido ese tiempo de servicio por el propio órgano administrativo superior, es decir, el Consejo Superior, igualmente, en su condición de Estado-patrono, lo que infringe la garantía constitucional a la jubilación. Esto, sin olvidar que se le cobraron las cuotas correspondientes al Fondo de Jubilaciones del Poder Judicial para luego indicarle que no reúne los requisitos legales para acogerse a su jubilación. La Ley número 9544 del 24 de abril de 2018 elimina el artículo 231, versión número 8, que literalmente decía: “Artículo 231.- Para el cómputo del tiempo servido, no es necesario que los Servidores del Poder Judicial hayan servido en él consecutivamente ni en puestos de igual categoría. Se tomarán en cuenta también los años de trabajo remunerado que se hubiesen servido en otras dependencias o instituciones públicas estatales, debiendo haber servido al Poder Judicial los últimos cinco años” (el destacado no corresponde al original). En sustitución de este numeral, se incluye a la Ley el artículo 224 bis, estableciendo una modificación significativa, que, de acuerdo a los principios constitucionales de razonabilidad y proporcionalidad, resulta abierta y arbitrariamente inconstitucional, al infringir el principio de patrono único del Estado, ya que se parte de un simple estudio actuarial, de contenido meramente económico de rentabilidad del Fondo, lo cual da una base sin contenido jurídico. Alega que no es razonable que una persona, siendo funcionario público y que venga de otra institución, que es acogida por el Poder Judicial, reconociéndole los años servidos, y autorizándole el pago de las cuotas en compensación, se le exija mediante una norma carente de razonabilidad técnica ni jurídica, que vacía el núcleo esencial del contenido de expectativa a la jubilación de quienes ya enfrentan una situación similar y de quienes podrían eventualmente tener una pretensión laboral en el Poder Judicial, por cuanto, el plazo determinado en la norma de cita respecto a 20 años es absolutamente antojadizo y su única finalidad en su redacción y contenido material es hacer nugatoria la posibilidad de jubilarse en el Poder Judicial, lo que es contrario a la seguridad jurídica de tener una pensión digna. Añade que dicha norma no es proporcional porque de conformidad con los propios requisitos de la norma reformada y la expectativa de vida de los ciudadanos costarricenses, le harán prácticamente imposible acceder a la jubilación. No existe proporcionalidad entre 5 años y 20 años, cambio absolutamente desproporcionado y antojadizo que no se sustenta legalmente, dejando en duda del porqué ese plazo mínimo y no conservar los 5 años o establecer algún otro tiempo de servicio, que acreditan su inconstitucionalidad. Considera que, con base en lo dispuesto en la Constitución (artículos 50, 51, 73 y 74), la normativa internacional (Declaración Universal de los Derechos Humanos -artículos 16 y 25-, Pacto Internacional de Derechos Civiles y Políticos -artículo 23-, Pacto Internacional de Derechos Económicos, Sociales y Culturales -artículo 10-, Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales o “Protocolo de San Salvador” -artículo 9-, Convenio 102 de la OIT -artículos 59, 60 y 63- y Convenio 128 de la OIT -artículos 20, 21, 24 y 25) y la jurisprudencia constitucional (votos 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001 y 1617-2015), el artículo 224 bis de la Ley Orgánica del Poder Judicial es contrario al Derecho Constitucional al desproteger de la posibilidad de acogerse a la jubilación a todas las personas trabajadoras del Poder Judicial, pese haber contribuido al régimen con el pago de las respectivas cuotas, ya que, para reconocérsele haber trabajado en otra institucional estatal, necesariamente debieron aportar el monto correspondiente a la cantidad de años reconocidos: “...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 periodo reconocido”. Insiste que, expresamente, se está privando de tal posibilidad a la persona trabajadora judicial de una opción jubilatoria, aun cuando haya pagado los montos correspondientes al régimen de pensiones del Poder Judicial según las cuotas canceladas mientras laboró en otra institución del Estado, alegándose que no cuenta con los requerimientos establecidos en la norma impugnada, específicamente, al menos 20 años de servicio en el Poder Judicial. Tal normativa aleja al Poder Judicial de los compromisos internacionales adquiridos por nuestro país, los cuales son de carácter obligatorio y que igualmente han sido validados de manera reiterada por la Sala Constitucional, inobservando el principio de estado patrono único, el cual surgió como una forma de asegurar a los trabajadores que se trasladan de una institución del Estado a otra, la continuidad en el disfrute de garantías que se reconocen en todo el sector público. Esa teoría parte de la tesis de que cualquiera que sea la institución pública a la que se sirva, se labora para un mismo patrono, que es el Estado, por lo que el pensar que por no haber laborado 20 años en el Poder Judicial, aun cuando lo haya hecho en otra institución estatal, no puede jubilarse bajo el régimen de pensiones de la institución, resulta discriminatorio. Sobre el tema pueden consultarse, entre muchos otros, los dictámenes C-152-2006 del 20 de abril de 2006 y C-358-2006 del 8 de setiembre de 2006, emitidos por la Procuraduría General de la República. También menciona la sentencia de la Sala Segunda de la Corte Suprema de Justicia nro. 34 de las 9:40 hrs. del 5 de marzo de 1993, citada por la nro. 269 de las 9:30 hrs. del 16 de septiembre de 1994. Cita, además, el dictamen nro. C-256-2013 del 15 de noviembre de 2013 emitido por la Procuraduría General de la República. Añade que el Código de Trabajo dispone en, su artículo 153, que “(n)o interrumpirán la continuidad del trabajo, las licencias sin goce de salario, los descansos otorgados por el presente Código, sus reglamentos y sus leyes conexas, las enfermedades justificadas, la prórroga o renovación inmediata del contrato de trabajo, ni ninguna otra causa análoga que no termine con éste”, entendiéndose que los derechos laborales del funcionario persisten. Además, debe tomarse en consideración que cualquier tipo de movimiento de personal dentro de la misma institución o de una institución a otra, tampoco producen una ruptura en la relación laboral; ello en razón de que no existe una nueva relación de servicio, al tratarse de un único patrono, como lo es el Estado. El artículo 4 de la Ley General de la Administración Pública indica: "La actividad de los entes públicos deberá estar sujeta en su conjunto a los principios fundamentales del servicio público, para asegurar su continuidad, su eficiencia, su adaptación a todo cambio en el régimen legal o en la necesidad social que satisfacen y la igualdad en el trato de los destinatarios, usuarios o beneficiarios". Con base en lo anterior, no puede la norma excluir a los empleados judiciales que no hayan laborado durante 20 años para el Poder Judicial, aun cuando lo hayan hecho en otras instituciones del Estado y hayan aportado las diferencias correspondientes en las cuotas, pagando al Fondo por los años servidos, esto por cuanto han trabajado para un solo patrono, El Estado, indistintamente del Poder de la República para el cual hayan laborado. El artículo 224 bis de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 del 24 de abril de 2018 es violatorio a la garantía fundamental a la jubilación, no solo por negar abiertamente esta posibilidad a las personas que han trabajado para las diferentes instituciones del Estado, incluyendo el Poder Judicial, por no alcanzar 20 años de servicios en la institución, pese a que han cancelado las cuotas correspondientes, sino por ser contrario al principio de igualdad, ya que promueve un trato diferenciado entre los servidores judiciales, brindando protección solo a unos y desamparando a otros, aun cuando todos tienen el mismo derecho. Estima que la norma indicada violenta el derecho fundamental a la seguridad social y el derecho a la jubilación. Es contrario, asimismo, a lo regulado en la Constitución (artículos 50, 51, 73 y 74), la normativa internacional (Declaración Universal de los Derechos Humanos -artículos 16 y 25-, Pacto Internacional de Derechos Civiles y Políticos -artículo 23-, Pacto Internacional de Derechos Económicos, Sociales y Culturales -artículo 10-, Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales o “Protocolo de San Salvador” -artículo 9-, Convenio 102 de la OIT -artículos 59, 60 y 63- y Convenio 128 de la OIT -artículos 20, 21, 24 y 25) y la jurisprudencia constitucional (votos 6077-2012, 4881-2002, 10986-2012, 20473-2014, 378-2001 y 1617-2015), al desproteger del derecho a acogerse a la jubilación a todas las personas trabajadoras del Poder Judicial, pese a que han cancelado las cuotas correspondientes, promoviéndose un trato diferenciado entre los servidores judiciales, brindando protección solo a unos y desamparando a otros aun cuando todos tienen el mismo derecho. La jubilación, como garantía fundamental, es un elemento integrador del derecho a la seguridad social, ya que se garantiza al trabajador que recibirá una retribución por las labores que realizó durante el tiempo servido. Acusa violación al principio de razonabilidad. Afirma que razonabilidad es en realidad un asunto de grado respecto a la violación de los principios constitucionales y, por ello, la razonabilidad (como límite general de la función pública) no es más que la generalización (a todo el sistema) de los límites del ejercicio de la discrecionalidad en la Administración; dicho en otra forma, es una faceta de la interdicción de la arbitrariedad, que concierne a todo el aparato público y que en el presente asunto queda absolutamente acreditado. Así las cosas, el control sobre los límites del ejercicio de la discrecionalidad administrativa está restringido a velar por el cumplimiento del “mínimo debido”, por lo que la Sala debe conocer la arbitrariedad manifiesta en la violación al principio de patrono único y que la legislación que determina los años de servicio necesarios legalmente establecidos en la normativa no puede tampoco ir más allá, siendo absolutamente clara la ausencia de razonabilidad técnica para determinar el porqué se requieren 20 años para poder optar por la jubilación, aspectos que se encuentran ausentes en el marco legal objeto de la presente acción. Asevera que diversos autores consideran que las normas constitucionales que le dan fundamento al principio de razonabilidad son los artículos 41 y 74, al hacer referencia directa al término justicia, mientras que otros consideran que su fundamento constitucional se encuentra en el párrafo segundo del artículo 28, que consagra el principio de la libertad jurídica. Como corolario de las distintas posiciones, el principio de razonabilidad conforma los derechos fundamentales considerados integralmente. Además, el principio de razonabilidad resulta ser un parámetro de constitucionalidad de las normas. Indica que, en este caso, 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, a saber, que se incrementen irracionalmente los años mínimos de servicio en el Poder Judicial para poder optar por una jubilación de 5 a 20 años. 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 como en el presente asunto. Cita los votos 03933-98, 08858-98, 05236-99 y 01739-02 de esta Sala, referentes al principio de proporcionalidad. Indica que, en síntesis, no es razonable que una persona siendo funcionaria pública y que venga de otra institución, que es acogida por la propia institución, reconociéndole los años servidos, y autorizándole el pago de las cuotas en compensación, se le exija -mediante una norma carente de razonabilidad técnica ni jurídica, que vacía el núcleo esencial del contenido de expectativa a la jubilación de quienes ya enfrentan una situación similar y de quienes podrían eventualmente tener una pretensión laboral en el Poder Judicial- al menos 20 años de servicio en el Poder Judicial. El plazo determinado en la norma de cita respecto a 20 años es absolutamente ineficaz y su única finalidad en su redacción y contenido material es hacer nugatoria la posibilidad de laborar para el Poder Judicial en condiciones de mínima dignidad. Alega una infracción al principio de proporcionalidad. Sostiene que la norma impugnada no es proporcional, porque, de conformidad con los propios requisitos de la norma reformada y la expectativa de vida de los ciudadanos costarricenses, le harán prácticamente imposible acceder a la jubilación. No existe proporcionalidad entre 5 años y 20 años, cambio absolutamente desproporcionado y antojadizo que no se sustenta legalmente, dejando en duda del porqué ese plazo mínimo y no conservar los 5 años o establecer algún otro tiempo de servicio. Señala que existe una obligación de respetar los principios de proporcionalidad y razonabilidad. Cita las sentencias de esta Sala nro. 08858-98, 2000-02858 y 2002-4842. Solicita que, en consecuencia, se declare la inconstitucionalidad del artículo 224 bis de la Ley Orgánica del Poder Judicial reformado por la Ley número 9544 del 24 de abril de 2018.

2.- A efecto de fundamentar la legitimación que ostenta para promover esta acción de inconstitucionalidad, la parte accionante alega que se acciona en defensa de un interés corporativo, en particular, en resguardo de los intereses de los miembros o asociados de la ANEJUD, en particular, los derechos a la seguridad social, a la jubilación y a la protección de la familia, de las personas que trabajan en el Poder Judicial y fallecen. Alega que se acciona en defensa de los intereses de sus asociados, respecto de la posibilidad de obtener una pensión justa y digna para sus familiares en caso de orfandad. Señala que, en consecuencia, su legitimación proviene del párrafo 2do. del artículo 75 de la Ley de la Jurisdicción Constitucional.

3.- Por resolución de las 11:56 horas del 8 de noviembre de 2021, se previno al accionante que, conforme al artículo 4 de la Ley número 3245 del 3 de diciembre de 1963, debía agregar y cancelar el timbre del Colegio de Abogados, correspondiente a la autenticación del escrito inicial.

4.- Mediante escrito recibido en esta Sala a las 13:26 horas del 10 de noviembre de 2021, el accionante cumplió la anterior prevención.

5.- El magistrado Cruz Castro planteó solicitud de inhibitoria, en su condición de presidente de la Corte Suprema de Justicia, por lo que afirma que podría ser llamado como parte o como interviniente en el presente asunto.

6.- Por resolución de las 9:53 horas del 4 de enero de 2022, el presidente de la Sala Constitucional dispuso tener por separado del conocimiento de este proceso al magistrado Cruz Castro. Asimismo, se declaró habilitado para conocer del presente asunto al magistrado suplente que lo sustituya de conformidad con el artículo 49 de la Ley Orgánica del Poder Judicial.

7.- El artículo 9 de la Ley de la Jurisdicción Constitucional faculta a la Sala a rechazar de plano o por el fondo, en cualquier momento, incluso desde su presentación, cualquier gestión que se presente a su conocimiento que resulte ser manifiestamente improcedente, o cuando considere que existen elementos de juicio suficientes para rechazarla, o que se trata de la simple reiteración o reproducción de una gestión anterior igual o similar rechazada.

Redacta Magistrado Castillo Víquez; y,

Considerando:

I.- SOBRE LA LEGITIMACIÓN DEL ACCIONANTE. La parte accionante goza de legitimación para promover esta acción de inconstitucionalidad, según el numeral 75, párrafo segundo, de la Ley de la Jurisdicción Constitucional, ya que se acciona en defensa de un interés corporativo; en concreto, en resguardo de los intereses de los asociados del sindicato.

II.- OBJETO DE LA ACCIÓN. La parte accionante impugna, concretamente, el artículo 224 bis de la Ley Orgánica del Poder Judicial, adicionado por el ordinal 1 de la Ley nro. 9544 del 24 de abril de 2018, que establece:

“Artículo 224 bis- Los servidores con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación anticipada si no se cumpliera con la edad o el número de años de servicio, citado en el artículo anterior. Esta se calculará de la siguiente forma:

• a)Si el retiro se produjera al cumplir treinta y cinco o más años de servicio, pero sin haber cumplido los sesenta y cinco años de edad, la jubilación se calculará en proporción a la edad del servidor:
• 1)Las mujeres deben haber cumplido al menos sesenta años y los hombres al menos sesenta y dos años.
• 2)El cálculo se hará multiplicando la pensión obtenida según lo establecido en el artículo 224 para el cálculo de la jubilación ordinaria, por la edad del servidor y el producto se dividirá entre sesenta y cinco; el resultado de esta operación constituirá el monto de la jubilación anticipada.
• b)Si el retiro se produjera al cumplir el servidor sesenta y cinco o más años de edad, pero antes de cumplir treinta y cinco años de servicio, la jubilación se acordará en proporción a los años laborados, siempre que el número de años servidos no sea inferior a veinte. Para fijarla, se multiplicará el monto de la jubilación ordinaria, indicado en el artículo 224 por el número de años servidos y el producto se dividirá entre treinta y cinco; el resultado será el monto de la jubilación anticipada.

(Así adicionado por el artículo 1° de la ley N° 9544 del 24 de abril de 2018)” (el destacado no corresponde al original) III.- SOBRE EL FONDO. En el sub lite, el accionante cuestiona que el citado artículo 224 bis de Ley Orgánica del Poder Judicial -adicionado mediante Ley nro. 9544 del 24 de abril de 2018- exija, para efectos de acogerse a una jubilación anticipada del Régimen de Pensiones y Jubilaciones del Poder Judicial, que los servidores judiciales tengan “veinte o más años de servicio en el Poder Judicial”, en perjuicio de aquellas personas que previamente hayan laborado para otras instituciones o dependencias públicas. Máxime que la propia Ley Orgánica del Poder Judicial, en su artículo 226, prevé que si un servidor judicial ha “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”. Estima que se infringen los principios de patrono único del Estado, igualdad, razonabilidad y proporcionalidad, así como el derecho fundamental a la seguridad social y a la jubilación. Alega que, previo a la reforma realizada al Régimen de Pensiones y Jubilaciones del Poder Judicial, mediante la Ley nro. 9544, solo se exigían cinco años de servicio en el Poder Judicial; sin embargo, ahora se exigen veinte años de servicio, lo que fue introducido de forma antojadiza, sin un fundamento o razonamiento técnico que lo sustente.

En cuyo caso, lo primero que debe indicarse es que esta Sala ha señalado, en reiterada jurisprudencia, que no resulta inconstitucional la existencia de diversos regímenes de pensiones –incluido, específicamente, el régimen de pensiones y jubilaciones del Poder Judicial-, con “su normativa especial –en procura de garantizar la existencia misma del régimen, así como su propia administración-” (voto nro. 2020-02841 de las 9:40 horas del 12 de febrero de 2020) y con sus “propias reglas y criterios legales para el otorgamiento del derecho constitucional a la jubilación y a la pensión” (voto nro. No. 2084-96 de las 14:30 hrs. del 07 de mayo de 1996). Criterio reiterado, recientemente, en el voto nro. 2021-011957 de las 17:00 horas del 25 de mayo de 2021, en que se confirmó la validez constitucional de la existencia de un régimen exclusivo para los trabajadores del Poder Judicial, como un régimen especial, independiente y diferente al básico, con sus propios requisitos de elegibilidad a fin de garantizar su solvencia y funcionamiento. Lo que no implica una infracción al principio de igualdad. Se resolvió, al efecto, que:

"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. (...)." En lo que se refiere propiamente al reproche de fondo del accionante, en cuanto a la exigencia de un mínimo de veinte años de servicio en el Poder Judicial para poder acogerse a una jubilación anticipada, conforme lo dispuesto en el artículo 224 bis de la Ley Orgánica del Poder Judicial, debe señalarse que este Tribunal ya se pronunció respecto de la constitucionalidad de dicha disposición normativa, en la supra citada sentencia nro. 2021-011957. En lo que interesa, esta Sala, por mayoría, resolvió que:

“XXV.- Redacta la Magistrada Hernández López. Sobre la razonabilidad y proporcionalidad de los requisitos de elegibilidad y de las prestaciones establecidas en el Capítulo I “Prestaciones”, según la reforma operada por la Ley número 9544.- Para explicar su alegato sobre la supuesta vulneración de los principios de razonabilidad y proporcionalidad ocurridos con la emisión de la ley número 9544 cuestionada, algunos de los accionantes señalan que las condiciones de elegibilidad y las prestaciones jubilatorias no atienden a los estudios técnicos que se aportaron al expediente legislativo, mientras que otra parte de ellos, reconocen que el Legislativo se acuerpó en estudios técnicos, pero desdeñó opciones más idóneas con lo que se afectó la razonabilidad de su decisión.

Al respecto tenemos que el capítulo de “prestaciones” de la Ley 9544, recoge la modificación de los requisitos, bajo los cuales, los servidores judiciales pueden obtener el derecho a la jubilación y el monto económico de ella, según dispone el artículo 224 de ese texto legal:

“Artículo 224- Los servidores judiciales con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación ordinaria igual a un ochenta y dos por ciento (82%) del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en su vida laboral, actualizados según el índice de precios al consumidor (IPC), definido por el Instituto Nacional de Estadística y Censos (INEC), siempre y cuando hayan cumplido sesenta y cinco años de edad y hayan trabajado al menos treinta y cinco años”.

Por su parte, el artículo 224 bis regula las condiciones para obtener una jubilación anticipada, en los siguientes términos:

“Artículo 224 bis- Los servidores con veinte o más años de servicio en el Poder Judicial podrán acogerse a una jubilación anticipada si no se cumpliera con la edad o el número de años de servicio, citado en el artículo anterior. Esta se calculará de la siguiente forma:

• a)Si el retiro se produjera al cumplir treinta y cinco o más años de servicio, pero sin haber cumplido los sesenta y cinco años de edad, la jubilación se calculará en proporción a la edad del servidor:
• 1)Las mujeres deben haber cumplido al menos sesenta años y los hombres al menos sesenta y dos años.
• 2)El cálculo se hará multiplicando la pensión obtenida según lo establecido en el artículo 224 para el cálculo de la jubilación ordinaria, por la edad del servidor y el producto se dividirá entre sesenta y cinco; el resultado de esta operación constituirá el monto de la jubilación anticipada.
• b)Si el retiro se produjera al cumplir el servidor sesenta y cinco o más años de edad, pero antes de cumplir treinta y cinco años de servicio, la jubilación se acordará en proporción a los años laborados, siempre que el número de años servidos no sea inferior a veinte. Para fijarla, se multiplicará el monto de la jubilación ordinaria, indicado en el artículo 224 por el número de años servidos y el producto se dividirá entre treinta y cinco; el resultado será el monto de la jubilación anticipada”.

El contraste entre la ley actual y la anterior, en los temas abordados por los artículos arriba citados arroja lo siguiente:

• a)Respecto de la edad, con el nuevo texto (impugnado) la edad para la jubilación ordinaria es, como mínimo, 65 años. En el texto de la norma derogada se exigía como mínimo haber cumplido 62 años de edad, (artículo 224 derogado) lo que muestra un aumento de 3 años en cuanto a la edad mínima de jubilación.
• b)Respecto de la cantidad de años de servicio, el texto nuevo (impugnado) dispone la obligación de tener al menos 35 años de servicio. En cambio, la norma derogada requería haber trabajado al menos 30 años en la “administración pública” (artículo 224 derogado). El requisito general de años de servicio se aumentó en 5 años, según se aprecia.
• c)a esto, cabe sumar que se exige ahora demostrar 20 años o más de servicio laborados dentro del Poder Judicial. En el texto anterior, se requería haber laborado para el Poder Judicial los últimos 10 años antes de la jubilación (artículo 231 derogado).
• d)Respecto del monto de la prestación jubilatoria. En la norma nueva (impugnada) el monto bruto de jubilación ordinaria se define como el ochenta y dos por ciento (82%) del salario promedio de los últimos 20 años de salarios mensuales ordinarios devengados en su vida laboral. En cambio, en el texto legal anterior, el monto bruto de la jubilación ordinaria se definía como el cien por ciento (100%) del promedio de los últimos 24 mejores salarios mensuales ordinarios, devengados al servicio del Poder Judicial.

Por otra parte, en lo que respecta a la jubilación anticipada, los cambios se resumen así:

• a)respecto de la jubilación por tiempo de servicio: el texto (impugnado) permite obtener la jubilación anticipada sin contar con la edad requerida (65 años) siempre que se haya cumplido con los años de servicio (35 años). Eso sí, se fija una edad mínima para este tipo de retiro por años de servicio, que se diferencia según el sexo, y que será 62 años para hombres y 60 años para las mujeres. En la legislación anterior, también existía la posibilidad del retiro anticipado al cumplirse los años de servicio exigidos (30 años), sin exigirse una edad mínima, y sin hacerse distinción entre hombres y mujeres. (artículo 225 derogado) b) Respecto del retiro al cumplir la edad. También permite el texto actual (impugnado) el retiro anticipado por edad, es decir, sin contar con el tiempo de servicio exigido (35 años) pero siempre y cuando se haya cumplido con la edad establecida para la jubilación ordinaria (65 años) y -además- se cuente con un tiempo de servicio mínimo de veinte años laborados dentro el Poder Judicial. La legislación anterior contemplaba igualmente esta posibilidad de retiro por edad para lo cual había de cumplirse como con la condición de tener un mínimo de 60 años y contar con al menos diez años de servicio (art 225 derogado) c) Respecto del monto de la prestación jubilatoria anticipada. Para ambos casos de jubilación anticipada (por años de servicio o por edad) la forma de cálculo del monto de referencia a la nueva forma de cálculo del monto del monto bruto de jubilación recogido en el artículo 224 de la ley impugnada.

En tercer lugar, se observa que las pensiones de quienes se incapaciten de forma permanente, no se han visto afectadas en su particular estructura, sino que la inconformidad se vincula con la variación sufrida por el artículo 224 impugnado en el cual se establece el mecanismo para determinar el monto bruto de la pensión ordinaria, del cual -a su vez- dependerá la pensión que pueda corresponderle a las personas afectadas por la contingencia.

Los accionantes advierten que justamente con esa reformulación de requisitos y prestaciones establecidos en los artículos 224 y 224 bis impugnados, se marca el inicio de los problemas de fondo que, en su criterio, contiene la Ley 9544, pues se aumenta la edad de retiro y el número de años que el funcionario debe laborar, a la vez que se reduce la suma que recibirá por concepto de jubilación respecto del salario que devengaba al jubilarse, a lo cual se suma que la aplicación de todas las deducciones legalmente establecidas lo cual genera que el monto a recibir sea en muchos casos menor al 55 por ciento del último salario percibido lo cual es claramente ruinoso. Así las cosas, señalan una lesión de los principios de razonabilidad y proporcionalidad ya que -para algunos de ellos- la Asamblea Legislativa se apartó de los criterios técnicos y optó por acoger un sistema carente de fundamentación ni sustento, mientras que otro grupo afirma que, aunque se atendió a criterios técnicos, se dejó de lado opciones menos lesivas y más razonables y proporcionadas que se plantearon durante el curso de la tramitación legislativa.

XXVI.- Continúa redactando la Magistrada Hernández López. Los informantes llamados a este proceso indicaron lo siguiente sobre la lesión a la proporcionalidad y razonabilidad del nuevo diseño. La Procuraduría General de la República manifiesta en su informe que la necesidad de realizar los cambios disputados en el régimen de pensiones del Poder Judicial, se deriva directamente de los estudios actuariales en que se fundamentó dicha reforma. En otras palabras, incrementar la edad de retiro y el número de años de cotización y reducir las prestaciones económicas a favor de los jubilados, no fue una decisión adoptada por capricho del legislador, sino que es el resultado de la situación del régimen, lo cual se vio reflejado en los estudios actuariales mencionados, concluyendo que los cambios operados cuentan con el respaldo técnico necesario para afirmar su ajuste al Derecho de la Constitución. Señala que el tema ya fue objeto de análisis concreto por parte de la Sala en la consulta legislativa de constitucionalidad que dio origen a la sentencia número 2018-5758 ampliamente mencionada. Explica finalmente en este punto que el nuevo texto del 236 de la LOPJ dispone expresamente que las deducciones no podrán ser superiores al 55 por ciento del monto bruto de la jubilación o pensión fijada; todo ello, sumado a la existencia de estudios técnicos sobre los cuales se actuó, hacen las modificaciones no infrinjan los principios de razonabilidad y proporcionalidad.

En el informe rendido por la Presidenta de la Asamblea Legislativa, se indicó: “Debe entenderse entonces, que la ley bajo análisis no responde a criterios arbitrarios o antojadizos -situación ya analizada por la Honorable Sala Constitucional-, por lo que no supone vulneración alguna a los principios constitucionales de razonabilidad y proporcionalidad” haciendo referencia a que la Comisión Especial que dictaminó el proyecto, tomó en cuenta el referido estudio técnico así como también que contó con participación del Comité Técnico que creó el Poder Judicial, y refiriéndose también a que en la sentencia número 2018-005758 de las 15 horas 40 minutos del 12 de abril de 2018, la Sala había señalado que se contó con tales estudios técnicos.

La Vicepresidenta de la Corte Suprema de Justicia en su informe señala que en relación al porcentaje establecido en el artículo 224 de la Ley número 9544, es preciso tomar en cuenta que las personas servidoras judiciales en el momento de acogerse a su jubilación, continúan contribuyendo al Fondo de Jubilaciones y Pensiones del Poder Judicial con un aporte obrero de un 13% según el artículo 236 de ese mismo cuerpo normativo, a diferencia de otros regímenes de jubilaciones y pensiones, por ello el monto de su jubilación se vería disminuido y además se debe agregar otras deducciones como es el rebajo por concepto de gastos administrativos de la Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial que establece una comisión por gastos administrativos de un cinco por mil de los sueldos que devengan las personas servidoras judiciales, así como de las jubilaciones y pensiones a cargo del fondo, lo que podría verse como confiscatorio (artículo 40 constitucional) o violatorio al principio de irretroactividad de la ley (artículo 34 de la Constitución Política) al existir derechos patrimoniales adquiridos y consolidados por una ley anterior. Menciona además la Vicepresidenta del Poder Judicial que según el informe aprobado por la Corte Plena en sesión número 26-17 de 7 de agosto de 2017, artículo XXX, “(…) esta Corte ha sido respetuosa y lo será de los estudios técnicos que se emitan para procurar la sostenibilidad del Fondo, no obstante, no puede obviarse que se está en presencia de derechos fundamentales y es por ello que también la reforma merece un estudio apegado a la técnica actuarial pero también con perspectiva de derechos humanos.

En ese sentido cabe destacar que la Recomendación nº 43 de la OIT “Recomendación sobre el seguro de invalidez, vejez y muerte”, en el punto 13), incisos a) y b) señala que:

"(a) Para garantizar a los trabajadores una vejez sin privaciones la pensión debería cubrir las necesidades esenciales. Conviene, por consiguiente, que la pensión garantizada a todo pensionado que haya cumplido un período de prueba determinado se fije teniendo debidamente en cuenta el coste de vida.

(b) En los regímenes con cotizaciones proporcionales a los salarios, los asegurados que tuvieran abonadas en su cuenta las cotizaciones correspondientes a la duración media de la vida profesional activa deberían obtener una pensión que corresponda a su situación social durante el período de actividad profesional. A este efecto, la pensión garantizada a los asegurados que tengan acreditados treinta años efectivos de cotización no debería ser inferior a la mitad del salario asegurado desde el ingreso en el seguro o durante un período determinado que preceda inmediatamente a la liquidación de la pensión (El destacado es nuestro).

Es claro entonces que tanto el Convenio n° 102 como la Recomendación n° 43 de la Organización Internacional de Trabajo son contestes al establecer que la jubilación y pensión deben satisfacer las necesidades esenciales de las personas en su etapa de vejez, por lo que el monto debe ser fijado tomando en cuenta el “coste de vida y la situación social durante el período de actividad profesional”. Es decir que se debe respetar el nivel de vida que la persona trabajadora tenía durante su vida profesional activa.

No se desconoce la necesidad de hacer reformas al Fondo de Jubilaciones y Pensiones con el fin de procurar la sostenibilidad, pero estas deben responder revestirse de idoneidad y razonabilidad, tal y como lo indicó la Sala Constitucional en el voto n° 2010-1625 de las 9:30 horas del 27 de enero de 2010 al declarar inconstitucional el tope a las pensiones establecido en el artículo 234 de la Ley Orgánica del Poder Judicial. Lo anterior es conteste con lo dicho por la Comisión Interamericana de Derechos Humanos cuando al analizar la admisibilidad del caso “Admisibilidad y Fondo Asociación Nacional de ex Servidores del Instituto Peruano de Seguridad Social y Otras contra Perú” (1), esbozó que el artículo 26 mencionado, no es excluyente de la posibilidad de que un Estado imponga ciertas restricciones al ejercicio de los derechos incorporados en esa norma, siempre y cuando se haya hecho un análisis conjunto de la afectación individual del derecho (en este caso a la jubilación y la pensión) con relación a las implicaciones colectivas de la medida”.

XXVII.- Redacta el Magistrado Araya García. Este Tribunal estima que tal como la Procuraduría y la Presidencia de la Asamblea Legislativa apuntan, tanto la cuestión de la ausencia de criterios técnicos para fundar las decisiones de la reforma operada en el régimen de Jubilaciones y Pensiones del Poder Judicial, como el hecho de que se haya preterido una opción más favorable para los participantes del fondo en lo atinente a los requisitos de elegibilidad y la forma de cálculo de las prestaciones jubilatorias ya fue abordada cuando este Tribunal tuvo oportunidad de analizar los textos legislativos con la redacción que finalmente se convirtió en ley de la república. En la sentencia 2018-5758 que respondió la citada consulta constitucional se dijo sobre ese aspecto:

“ XIX.-Sobre la falta de estudios para fijar el cálculo de la pensión. Los(as) consultantes estiman que el artículo 224 del proyecto de ley es contrario al numeral 73 de la Constitución Política. Aducen que el artículo cuestionado dispone que el cálculo de la pensión se obtendrá del promedio de los salarios de los últimos 20 años devengados por la persona trabajadora, sin contar con estudios técnicos con respecto a cuál será el impacto real sobre las reservas del fondo. Agregan que el estudio que sirvió de base fue el emitido por la Universidad de Costa Rica, pero en este se fijó como límite para el cálculo de la pensión los últimos 120 salarios (10 años), por lo que estiman que la Comisión Especial se extralimitó en sus apreciaciones, toda vez que, sin fundamento técnico, varió el criterio de cálculo de los últimos 120 salarios a uno de 240 salarios. Asimismo, consideran que resulta ilegítimo que se tome como absoluto el porcentaje anual de los rendimientos en un 3%, de las inversiones del Fondo, sin tomar en cuenta que los rendimientos reales fueron mayores. En lo que atañe al primero de los alegatos, la Sala considera que, tras analizar los autos, se descarta el vicio acusado, pues a folio 2942 del expediente legislativo consta el oficio número IICE-186-2017 del 18 de agosto de 2017, en el que el director del Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica avala el parámetro establecido por el artículo 224 del proyecto ley, al mencionar, sobre el particular, lo siguiente:

“a. Salario de referencia para el cálculo del monto de la jubilación o pensión En el artículo 224 a reformar, el Dictamen de Mayoría calcula el salario de referencia (SR) como el promedio de los últimos 20 años (SR20), actualizado con el índice de precios al consumidor calculado por el INEC, mientras que los marcos IICE_3 e IICE_4 lo calculan como el promedio de los últimos 10 años (SR10), ajustado por el mismo índice. Se estimó que el salario promedio de los últimos 20 años, ajustado por inflación, es un 4.8% menor que el salario promedio de los últimos 10 años para los nuevos pensionados, dada la escala de mérito vigente en el Poder Judicial. Esta diferencia entre el Dictamen de Mayoría y los marcos IICE, tomada en forma independiente de los otros componentes de la normativa propuesta, actúa a favor de la solvencia actuarial del fondo de jubilaciones y pensiones, aspecto al que haremos referencia en el inciso siguiente.

b. Aporte obrero y beneficio de los afiliados (…)

Ahora bien, el Dictamen de mayoría propone un beneficio del 85% de un salario de referencia de 240 meses (en vez de 120 meses), con un aporte obrero que, como se comentó, consiste en una escala diferencia entre 11% y 15%. Ya se señalaron problemas conceptuales y operacionales asociados a la aplicación de esa escala que, al quedar a criterio de la Junta Administradora del propio Poder Judicial, corre además el riesgo de fijarse en la práctica más cerca del 11% que del 15% lo que, combinado con un beneficio del 85% del salario de referencia, afecta negativamente la solvencia actuarial del fondo.

A este respecto, el equipo del IICE considera más adecuado y conveniente establecer un aporte obrero único claramente definido y con un vínculo razonable entre este aporte y el beneficio que reciben los afiliados al fondo. En este caso, el equipo considera que un aporte único de 13% (aplicado a activos, jubilados y pensionados) sería compatible con un beneficio de 82% calculado sobre el salario de referencia de 240 meses. Es importante destacar que el Dictamen de mayoría fija el aporte patronal en 14,36% (artículo 236, inciso 2), desvinculándolo de incrementos proporcionales en el aporte obrero, aspecto que se apega a lo recomendado por el IICE”.

En ese sentido, al constatar que, contrario a lo que se afirma en el escrito inicial, sí existe un criterio técnico que avala el parámetro fijado por el proyecto de ley con respecto al salario de referencia para el cálculo de la pensión, el Tribunal descarta la existencia del vicio acusado.

Por otra parte, en lo que respecta al segundo de los alegatos de los(as) consultantes, la Sala considera que, en el fondo, lo que se cuestiona es si los parámetros que sirvieron de base para fijar los requisitos para obtener el derecho de pensión eran los idóneos o no, extremo que no implica que la norma sea inconstitucional, tal y como estiman los(as) consultantes, de ahí que se considere que el vicio es inexistente.” De similar manera, se había señalado anteriormente en la misma sentencia:

“XV.- Sobre la alegada violación al principio de independencia judicial. (…) Considera la Sala que con lo anterior se cumple con lo establecido por la doctrina internacional, en el sentido de que son los poderes públicos quienes soportan la carga de probar que los recortes se justifican a la luz del conjunto de derechos socioeconómicos, y que en caso de que una administración tenga la necesidad de adoptar medidas regresivas para el derecho a la pensión y la jubilación, debe contar con un estudio técnico con respecto a los efectos que éstas puedan tener en los derechos de los afectados y el régimen, así como que no existen medidas menos gravosas que pudieran haber sido tomadas, situación que se cumple en este caso, tomando en cuenta los análisis efectuados por la Universidad de Costa Rica en los estudios actuariales del Fondo de Jubilaciones y Pensiones del Poder Judicial. (…) Así, en atención a lo dispuesto anteriormente, la Sala no considera que se presente el vicio alegado.” Y agregó un poco más adelante:

“XVII.- Sobre los cambios en los requerimientos para obtener el derecho de pensión. Los(as) consultantes consideran que el artículo 224 del proyecto de ley lesiona los principios de proporcionalidad y razonabilidad por cuanto se aumenta la edad de retiro y el número de años que el funcionario debe laborar, pero se reduce el porcentaje de dinero que recibirá por concepto de pensión con respecto al salario que devengaba. Asimismo, cuestionan el transitorio VI del proyecto, que dispone que solamente aquellas personas que estén a 18 meses de cumplir los requisitos para adquirir el derecho de pensión, podrán hacerlo al amparo de lo establecido por la Ley N° 7333. Las normas cuestionadas disponen lo siguiente: (…) Cabe destacar, que el derecho a la jubilación no es irrestricto, ya que puede ser sometido a determinadas limitaciones, siempre y cuando estas sean establecidas mediante una ley formal, sean razonables y no su afecten su contenido esencial. Así, la Sala ha sostenido que el legislador tiene la potestad de establecer restricciones al derecho a la jubilación, cuando se logre comprobar que existen ciertas situaciones que ponen en riesgo la sostenibilidad de un régimen y, por ende, atenten contra la naturaleza del sistema como tal. Sobre el particular, en el voto número 2379-96 de las 11:06 del 17 de mayo de 1996, se estableció lo siguiente:

(…)

Ahora bien, de lo expuesto se desprende, con claridad, que el derecho a la jubilación puede ser sometido a limitaciones, al igual que cualquier otro derecho fundamental. Lo anterior, conlleva a que no exista un derecho de la persona a jubilarse bajo condiciones específicas, pues éstas pueden ser variadas cuando resulte necesario para garantizar la existencia de un régimen de pensiones y jubilaciones específico, pues de no ser así, podrían crearse condiciones que hagan insostenible financieramente al sistema, lo que, finalmente, conllevaría a que el derecho a la jubilación se vea afectado severamente, o que su ejercicio no sea del todo posible, ante la inexistencia de fondos que impidan el pago al interesado el monto de su jubilación. Ante dicho panorama, la Sala considera que las normas cuestionadas no resultan inconstitucionales, en el tanto su fin es, precisamente, garantizar la permanencia del Régimen de Jubilaciones y Pensiones del Poder Judicial, para lo cual se fijaron parámetros y requerimientos a partir de la opinión de expertos que fueron recibidos por la Comisión Especial que dictaminó el expediente legislativo número 19.922, así como de estudios de naturaleza técnica que constataron la existencia de una problemática que puede llegar a afectar la sostenibilidad del Régimen mencionado, y para lo cual emitieron una serie de recomendaciones. En ese sentido, al comprobar que la variación de requisitos dispuesta por el numeral 224 y el plazo fijado por el transitorio VI del proyecto de ley tienen como fin último garantizar el derecho de jubilación de los(as) servidores(as) judiciales, la Sala descarta el vicio alegado.” (sentencia 2018-5758).

Visto lo anterior y dada la inexistencia de elementos de convicción novedosos aportados por los accionantes en estos aspectos, el Tribunal tiene por comprobado -en primer lugar- que la insostenibilidad del fondo de Jubilaciones y Pensiones del Poder Judicial era un hecho real al momento en que tanto la Corte Suprema de Justicia como la Asamblea Legislativa, deciden iniciar un proceso de reforma del régimen jubilatorio de la institución, apoyados en una valoración técnica que operara como insumo técnico para atacar los problemas financieros que amenazaban al Fondo. En segundo lugar, la Sala reafirma lo dicho en la sentencia 2018-5758, en relación con la validez y pertinencia constitucional de los cambios operados en las condiciones de elegibilidad, así como en la determinación de las prestaciones a cargo del Fondo, en el entendido de que tales ajustes se encuentran dentro del marco constitucional legítimo de acción del legislador en materia jubilatoria según se explicó en dicho texto. En tercer lugar, también se reafirma lo dicho en la sentencia 2018-5758 respecto de la existencia un adecuado sustento técnico que soporta al texto que finalmente se convirtió en ley de la república, en el tanto que los parámetros finales establecidos sí fueron avalados técnicamente según se explicó en detalle en la sentencia 2018-5758 recién citada.

XXVIII.-Continúa redactando el Magistrado Araya García. No obstante lo anterior, los accionantes reiteran la falta de razonabilidad y proporcionalidad constitucionales de la decisión tomada y sostienen concretamente que el informe técnico ofreció a los legisladores opciones más favorables para los intereses económicos de los participantes del fondo y que dejaban intacta la finalidad de la legislación pero, a pesar de ello, dicha opción no fue convertida en ley, con lo cual se infringió la condición de idoneidad que forma parte del parámetro de razonabilidad constitucional. Sobre el particular, la Sala observa que el Poder Judicial formalizó el Convenio R-CONV-005-2016 con el Instituto de Investigaciones en Ciencias Económicas (IICE) de la Universidad de Costa Rica, a fin de que realizara un estudio actuarial para determinar la solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial. En lo que interesa, de dicho estudio surgió evidencia clara y contundente sobre la insostenibilidad de la configuración vigente de dicho fondo, y por esa razón se ofrecieron cuatro propuestas de nuevos “marcos normativos” (marcos IICE 1, 2, 3, y 4) como ejercicio técnico para valorar distintas posibilidades de reacomodo de las variables incidentes en la operación del régimen previsional en cuestión. De ellos, según el propio estudio técnico, los números 1 y 2 no reúnen características de solvencia y sostenibilidad y se incluyeron para mostrar la forma en que los distintos valores de las variables afectaban el resultado final. Por esa razón, y como lo señalan los accionantes, el informe técnico recomendó a la Asamblea dos posibles combinaciones técnicamente viables: el marco IICE 3 y el marco IICE 4, para la modificación del régimen; sin embargo, no comparte la Sala conclusión de los interesados en el sentido de que lo anterior implicaba para el legislador, una elección exclusiva entre esas dos alternativas: primero, porque ninguna de ellas aspiraba ser “la mejor opción posible” sino que planteaban solamente como opciones viables para la modificación; segundo, porque quedaba claro que ellas no agotaban las posibilidades técnicamente válidas y aceptables de conjugación de variables de elegibilidad y beneficios (tal como al final resultó, según se dirá); y tercero porque la elección de cualquiera de las dos opciones (IICE 3 O IICE 4) o la construcción de alguna diferente, imponía necesariamente para los legisladores, un intercambio y equilibrio, entre las distintas variables relacionadas con aportes, condiciones de elegibilidad y beneficios a percibir. Así por ejemplo, sobre la misma base compartida de requisitos generales de elegibilidad (65 años de edad y 35 años de servicio); de forma de cálculo del salario de referencia (promedio de los últimos 10 años laborados); de existencia de un tope máximo de pago jubilatorio de 10 veces el salario base del Poder Judicial, y de una contribución solidaria para quienes recibieran jubilaciones altas, el marco IICE3, proponía para una jubilación ordinaria por vejez, un pago jubilatorio equivalente a un 72,5% del salario de referencia, a cambio de una contribución obrera (aportes de trabajadores activos y jubilados) que resultaba más baja (del orden del 11%) mientras que el IICE4 planteaba entregar un pago jubilatorio equivalente al 85% del salario de referencia, pero a cambio de una contribución obrera más alta (del orden de un 15%). Frente a ese estado de cosas, la opción acogida por la Asamblea Legislativa no resulta arbitraria pues consistió en construir -con los elementos técnicos aportados- una propuesta intermedia entre los marcos IICE3 e IICE4 originalmente recomendados. Es decir, sobre la misma base común de requisitos de los citados marcos, en cuanto a condiciones de edad y de servicio; de tope al monto jubilatorio y de establecimiento de una contribución solidaria para las jubilaciones por encima de este último, la Asamblea definió para la jubilación ordinaria por vejez- un pago jubilatorio del 82% del salario de referencia (9 puntos y medio porcentuales más alta que el 72,5% propuesto en el marco IICE3, pero 3 puntos porcentuales menor que el 85% fijado en el marco IICE4). De igual forma, se fijó el porcentaje de contribución obrera en 13% (es decir 2 puntos porcentuales más que el 11% del marco IICE3, pero 2 puntos porcentuales menos que el 15% establecido en el IICE4). Cabe indicar que parecidas consideraciones pueden realizarse en relación con los casos de las pensiones anticipadas y las pensiones por invalidez. Sin embargo -y en esto parecen centrarse los argumentos de varios de los recurrentes- la Asamblea Legislativa varió la fórmula de cálculo del salario de referencia, para fijarlo en el promedio de los últimos 240 salarios (20 años laborados) frente al promedio de los últimos 120 salarios (10 años) empleado en los marcos IICE3 e IICE4; dicho cambio, implicó, de acuerdo a la propia autoridad técnica, una disminución del 4,8 % en el salario promedio que serviría de referencia para fijar el pago jubilatorio.

Con ese cuadro, debe entonces determinarse si tal conjunto de actuaciones de la Asamblea, se ubica en el terreno de lo irrazonable por resultar inidóneas y la conclusión de la mayoría del Tribunal, es que el defecto acusado es inexistente, pues precisamente se trató de una elección intermedia entre los dos marcos recomendados, elección respecto de la que no se ha demostrado que haya implicado una desmejora sustancial y relevante de las condiciones de los participantes del fondo, frente a las ofrecidas en los marcos IICE3 o el IICE4, esto porque como se explicó, lo ocurrido fue un intercambio de unas ventajas por otras, siempre dentro los límites fijados en los marcos propuestos por el ente técnico, y sin que existan en este expediente datos precisos y fiables para afirmar que -valoradas todas las condiciones- existía una opción técnica disponible para el legislador, que generaría las mismas garantías de sostenibilidad que se buscaban para el fondo, pero ofreciendo a la vez niveles de protección clara y contundentemente mayores de los derechos fundamentales en juego. Hay que sumar a esto el hecho de que, precisamente, la labor del legislador consiste en sopesar los diferentes intereses y necesidades en juego y construir -dentro del espacio ofrecido por el marco técnico, pero también con fundamento en motivos de conveniencia y oportunidad- la estructura normativa que, según su criterio, resulte ser la que mejor se adapta a la finalidad estatal perseguida. Es esa su labor como representantes del pueblo y no debe esta Sala sustituir tal competencia ni la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial. Por último, cabe repetir que la propuesta normativa consensuada por la Asamblea Legislativa recibió el aval de la entidad técnica, quien señaló la propiedad técnica de ese diseño finalmente adoptado mediante el informe IICE-186-2017 que consta a folios 2942 y siguientes del expediente legislativo, tal como se explicó en la sentencia 18-5758 de esta Sala, citada supra.

Como se indicó en el considerando VI de esta sentencia el Instituto de Investigaciones en Ciencias Económicas (IICE) en el oficio IICE-186-2017 citado, se refiere a los cambios efectuados como técnicamente idóneos porque actúan a favor de la solvencia del fondo. Particularmente señala, en cuando al proyecto dictaminado por mayoría que los cambios en el cálculo del monto de la jubilación o pensión, en la edad requerida, en la contribución especial solidaria de 50%, el aporte obrero con escala diferenciada, edad de jubilación anticipada con diferencias por género, actúan a favor de la solvencia actuarial del fondo. Mientras que en el caso del dictamen de minoría (folios 2945 y ss mismo tomo) que estaba a favor de:

Utilizar un salario de referencia menor, calculado en el promedio de los últimos 10 años ajustado por el IPC. Sobre este punto se indica que esta modalidad de cálculo resulta menos favorable para la solvencia actuarial del fondo, y que su efecto debe analizarse en conjunto con otras características y parámetros como edad para jubilación ordinaria o por servicio, aporte obrero, contribución solidaria y transitorio.

85% de salario de referencia con una cotización obrera del 11%. Al respecto señala que la contribución obrera del 11% debería estar asociada a una jubilación o pensión que no exceda del 72.5% del salario de referencia calculado con los últimos 120 salarios ajustados por el IPC con el fin de mantener la solvencia actuarial.

Se propone una edad de 62 años para hombres y 60 para mujeres y no se establece una edad mínima para la jubilación adelantada o por servicio. Al respecto se señala que, en este escenario, aun con un aporte de 15% sobre salarios, jubilaciones y pensiones el fondo resulta insolvente si se mantiene un beneficio del 85% del salario de referencia. Agrega que “los análisis conducidos por el IICE revelan que la propuesta que surge del Dictamen de Minoría no pasa una prueba rigurosa de solvencia actuarial”. En particular se señala:

“ i. Si el aporte obrero se mantiene en el 11% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 3 millones de millones de colones, y la insolvencia actuarial sería superior al 30% de las promesas.

ii. Si el aporte obrero se incrementa al 15% y bajo las demás condiciones del Dictamen de Minoría, entonces el déficit actuarial sería mayor a 1.7 millones de millones de colones mientras que la insolvencia actuarial sería mayor al 17% de las promesas.

Contribución solidaria del 20% del exceso sobre el tope máximo definido para jubilaciones y pensiones que se fija en 10 salarios base. Este porcentaje puede aumentarse al 50% “si así lo recomienda algún estudio actuarial y lo aprueba la Junta Administrativa del Fondo”. Respecto a esta propuesta, el IICE señala que al reducirse al 20% la contribución, se pierde parte del efecto equiparador de dicho aporte.

Transitorio V. El Transitorio V propuesto por el Dictamen de Minoría prorroga los beneficios de la ley actual por 10 años adicionales a los 18 meses que se reconocen como derecho adquirido; si bien el beneficio se establece como 100% del salario de referencia de 120 salarios ajustados por el IPC, el transitorio no contempla gradualidad, de manera que su efecto en la solvencia se aproxima al del transitorio del proyecto de la Corte Plena, analizado en el Producto 4 del estudio actuarial. Dado que se trata de un período mayor y menor gradualidad, resulta menos favorable relativo al transitorio IV del Dictamen de Mayoría en cuanto a su incidencia en la solvencia actuarial del fondo.

Aporte patronal. Se propone que el aporte patronal del Poder Judicial (actualmente de 14,36% de los sueldos y salarios de los afiliados) “se ajustará proporcionalmente conforme a los incrementos que la Junta Administrativa acuerde como aporte de los servidores y servidoras judiciales….”. “El equipo del IICE considera totalmente inconveniente la cláusula anterior.” “La posición es que la garantía de la solvencia no debe descansar en el aporte estatal y evitar en esa forma un mayor deterioro de la ya delicada situación fiscal del país.” Operaciones de crédito: Se propuso autorizar a la Junta Administradora para que con los ingresos del Fondo se realicen operaciones de crédito en forma directa o por intermedio de alguna institución financiera. Sobre este tema, el equipo del IICE manifestó: “…la eventual participación del fondo en operaciones de crédito debe analizarse con sumo cuidado. En particular, es necesario considerar que las operaciones de crédito requieren de infraestructura administrativa, personal especializado y experiencia, los cuales implican gastos y también riesgos que deben ser adecuadamente valorados.” Luego de estas observaciones y de la discusión legislativa, se hicieron modificaciones al proyecto de ley, en la mayoría de los casos, para adaptarlas al criterio emitido por IICE, otras para incorporar posiciones dadas durante la discusión legislativa.

Los accionantes reclaman que no pueden existir medidas regresivas en derechos económicos sociales y culturales, dentro de los cuales estarían los sistemas de pensiones. No obstante, tal y como ha señalado el Comité de Derechos Sociales del Consejo de Europa y otros Tribunales Constitucionales como el Colombiano, es posible adoptar medidas regresivas en el ámbito de los Derechos económicos, sociales y culturales (DESC), cuando con ellas se persigue un fin legítimo y relevante, como el mejoramiento de otro derecho o del nivel general de cobertura de servicios que garanticen su efectividad o bien sirvan para evitar medidas más gravosas y estén técnicamente sustentadas. Así, la conformidad constitucional de medidas de recorte o modificación de condiciones en materia de pensiones requiere que previo a la determinación y como parte ineludible de su fundamentación, se debe contar con el sustento técnico sobre los efectos de las medidas debe haberse escuchado a los afectados porque se trata del ingreso que reciben en curso, como medio de subsistencia y en el cual se basa la gran parte de su proyecto de vida y de su derecho a una vejez digna.

Conforme a la doctrina y Jurisprudencia Interamericana, en los supuestos de regresividad de los DESC, es necesario, verificar la legitimidad de la finalidad que la norma pretende alcanzar, si la restricción de derechos es “idónea” o “adecuada”, sucesivamente si es “necesaria” o “indispensable” y, por último, si es “proporcionada” en estricto sentido o “ponderada”. El fin que la norma pretende alcanzar no debe estar prohibido por la Constitución y debe ser además un fin necesario y constitucionalmente importante. La norma en cuestión “(…) no puede tener cualquier finalidad, sino que debe estar orientada a proteger valores que tengan un sustento constitucional expreso, ya sea por cuanto la Carta los considera valores objetivos del ordenamiento (…). Esto significa que estas medidas deben ser no sólo admisibles sino buscar la realización de objetivos constitucionalmente importantes”. Asimismo, se debe constatar si los medios previstos en la norma para lograr el fin perseguido son adecuados o no para alcanzar efectivamente dicho fin o, dicho de otro modo, “(…) el efecto protector de la medida en relación con el interés o valor que se quiere favorecer debe aparecer demostrado claramente”.

No deben existir otros medios para alcanzar con la misma eficacia el fin perseguido que sean menos onerosos en términos de sacrificio de los derechos constitucionales susceptibles de limitación en cada caso o, en otras palabras, “(…) que no exista otro medio que pueda conducir al fin y que sacrifique en menor medida los principios constitucionales afectados por el uso de esos medios”.

Lo que se busca en este paso es verificar que la reducción o el deterioro en el patrimonio jurídico de las personas, es decir, la afectación de principios y derechos constitucionales, no sea superior al beneficio que esa afectación está en capacidad de reportar. En palabras de la Corte Interamericana, se debe verificar si “(…) la restricción de los derechos afectados es equivalente a los beneficios que la disposición genera.

Si el daño que se produce sobre el patrimonio jurídico de los ciudadanos es superior al beneficio constitucional que la norma está en capacidad de lograr, entonces es desproporcionada (…)”.

La Corte Interamericana, asimismo, ha sostenido que en temas económicos y más concretamente en lo que tiene que ver con temas presupuestales y apropiación de recursos, el legislador tiene una amplia libertad de configuración, motivo por el cual, en estos casos, los eventuales juicios de proporcionalidad que se hagan, deben tener una intensidad leve, que es precisamente la categoría de derechos en análisis.

Como queda comprobado del expediente legislativo, el sistema de pensiones del Poder Judicial, tenía un déficit actuarial de más de 5 mil millones de millones al momento de la discusión legislativa, que ponía en peligro el patrimonio del conjunto de los afiliados colectivos y pasivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial y las finanzas públicas, ya que el Estado tendría que asumir presupuestariamente ese déficit en un momento precario para las finanzas públicas. Es decir, no sólo existía una necesidad legítima de intervenir, sino una obligación legal de proteger el equilibro del fondo, del cual dependen miles de personas y familias, sino también el adecuado resguardo de las finanzas públicas.

A manera de ejemplo lo señalado por el Dr. Max Soto Jiménez del Instituto de Investigación Económicos de la Universidad de Costa Rica (folio 1321) y parte de su equipo, adelanta a la Comisión que dentro de los hallazgos, el Instituto de Investigaciones en Ciencias Económicas de la Universidad de Costa Rica (en adelante IICE) encontró que el déficit actuarial es 9.7 veces el monto de las reservas acumuladas y es un 36% del valor presente de todo el pasivo del régimen y que el texto sustitutivo que se discute en la Comisión es insuficiente para la garantizar la sostenibilidad del régimen de pensiones del Poder Judicial. (ver folio 1352 tomo 7 expediente legislativo).

Asimismo (folios 2274 y 2275 tomo 10) consta la intervención del Dr. José Antonio Cordero Peña del IICE, en el mismo sentido sobre la gravedad de la situación del fondo y la necesidad de tomar medidas:

“En realidad es evidente, que el fondo en este momento es insolvente…Si continuamos como están las cosas en estos momentos, lo que va a pasar es que las personas que se vayan jubilando los próximos años; van a comerse los recursos del fondo de las generaciones futuras y vean que curioso, como estamos todos tan longevos, también se van a comer los fondos los que van a financiar a ellos cuando tengan noventa años, cuando tengan noventa, noventa y cinco años, alguien va a tener que llegar a decirle, mire sabe qué, su pensión ya no va a ser factible, parecido como les pasó a algunos afiliados de fondos de pensión privados, en Chile.” Esa situación fue reconocida no sólo por el informe actuarial de la Universidad de Costa Rica, sino años antes por el informe de Melinsky citado, y por las propias autoridades del Poder Judicial durante las comparecencias, así como los propios gremios del Poder Judicial que participaron durante el proceso legislativo y además integraron los equipos técnicos del Poder Judicial que participaron en la elaboración de los 6 productos del IICE y avalaron las recomendaciones de los estudios, ahora impugnadas en esta acción.

En efecto, como se indicó en el Considerando VI de esta sentencia, en el Convenio R-CONV-005-2016 suscrito entre el Poder Judicial y la Universidad de Costa Rica, consta que los gremios o sindicatos del Poder Judicial, tendrían un representante en Equipo Ejecutivo, (folio 689 y 1154). En comparecencia ante la Comisión el Licenciado Hernández Solano señaló:

“Por primera vez en un estudio actuarial se les da representación a los trabajadores, en esta ocasión con el estudio de la UCR, por primera vez.

Hay un comité técnico dentro del Poder Judicial y un comité técnico dentro de la UCR, ellos son los que analizan todas las partes de las cinco fases que tiene el convenio UCR-Poder Judicial. El Comité Ejecutivo dentro del Poder Judicial es el que avala cada fase, la prueba, le hace consultas con el Comité Técnico y al final de cuentas le damos la aprobación”. (lo resaltado no es del original) “Por parte de la institución, hay un equipo ejecutivo… Está el Jefe del Departamento Financiero Contable de los gremios, formando parte de este equipo técnico. ¿Por qué toma la institución esa decisión? Bueno, porque la experiencia nos había demostrado que en procesos anteriores, los cuestionamientos de los gremios al estudio, se venían a dar al final del estudio y entonces entrábamos en una conflictiva interna, que no era sana. De esta forma, consideramos importante incorporar al representante gremial, como parte de este equipo ejecutivo y participa activamente y revisa los productos, como parte del resto del equipo que está conformado.” (folio 1325 tomo 6 del expediente legislativo) Allí se pactaron las condiciones de cada producto y el acuerdo se comunicó a la Comisión Legislativa Especial encargada de conocer y dictaminar el proyecto de Ley “Ley de reforma integral a los diversos regímenes de pensiones y normativa conexa, expediente legislativo 19, 222” (folio 775 folio 4 expediente legislativo) “En el proceso se daban observaciones, incluso quiero decirles que la Auditoría Judicial también participó en este proceso de revisión, y hubo observaciones por parte de don Arnoldo, en su momento representante gremial, por parte de la Auditoría, se le trasladaban al IICE, ellos nos daban una respuesta, en algunos casos corrigieron los productos porque este proceso se da en una versión preliminar para discusión o para valoración y luego, satisfechos con esa corrección se le daba la aprobación y visto bueno” ( folio 2335 tomo 10 expediente legislativo) (lo resaltado no es del original) A folios 843 del expediente legislativo, se aporta el estudio actuarial anterior de Melinsky, Pellegrinelli y Asociados S.A, que a folio 939 que entre sus recomendaciones señala, que para el año 2026 se visualiza un año crítico con un importante déficit actuarial del 50% de los capitales constitutivos de los beneficios en curso. Señala que “se requieren medidas sustantivas y efectivas tendentes a reducir el déficit actuarial y postergar sustantivamente el año crítico”. Agrega que a fin de tomar medidas de ajuste debe tenerse presente que se trata de un régimen previsional en curso donde deben ser compatibilizados los siguientes conceptos:

Beneficios en curso Tiempo de servicio prestado por los servidores en actividad Actuariales (reservas matemáticas requerida, déficit operativo, déficit actuarial, año crítico, prima media requerida de equilibrio) Legales Capacidad contributiva de los afiliados Capacidades presupuestarias del Poder Judicial Capacidades presupuestarias del Poder Ejecutivo Agrega. “todo análisis jurídico debe tener en cuenta que los ajustes que se señalan resultan necesarios a efectos de mejorar la situación de déficit actuarial y año crítico que implica un Riesgo Institucional que pone en peligro el patrimonio del conjunto de los afiliados colectivos y pasivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial. (lo resaltado no es del original) “Es decir que el elemento jurídico básico a tener en cuenta es que los derechos individuales reconocidos por la ley actual, deben considerarse derechos en expectativa supeditados al derecho colectivo respecto de la factibilidad de las prestaciones a la masa de afiliados no sólo en cuanto a su incidencia en el ámbito del Poder Judicial sino por su potencial efecto en el Presupuesto Nacional.” En la comparecencia de la Directora Ejecutiva del Poder Judicial (tomo 1322 y ss tomo 6 del expediente legislativo) señala que desde el último estudio actuarial de Melinsky la situación del déficit actuarial pasó de 2.48 millones de millones “a un escenario que ronda los 5 mil millones de millones”. Ante la pregunta de la Diputada Piszk Feinzilber: “¿Entendería bien, si interpreto que la situación es peor de lo que habíamos imaginado?”, la respuesta de la Directora Ejecutiva es: “Si. Han transcurrido desde el 2012, hasta la fecha, cuatro años. No se han tomado decisiones y la situación ha empeorado”. (folios 1338 y 1339 tomo 6 del expediente legislativo) Agrega la Diputada Piszk Feinzilber:

“Yo lo que quiero es que quede aquí muy claro, es que la preocupación de nosotros no está basada ni en un capricho” … sino que en que está clarísimo que mientras no se tomen decisiones la situación va a ir empeorando”.

“Sé y nosotros incluso nos habíamos comprometido a que íbamos a esperar a que hubiese un estudio actuarial completo para tomar las decisiones de orden, no sé si la palabra correcta es numérico o no es numérico, pero en cuanto a aportes, pero bueno, creo que está clarísimo que existe una preocupación de nuestra parte, que la Corte debe ser consciente de eso, de que aquí, diay, son todos los costarricenses los que vamos a tener que pagar, si esta cosa se sigue alargando y desde ese punto de vista, nosotros evidentemente como legisladores, que tenemos que tomar una decisión…” ( folio 1343 mismo tomo) En el mismo sentido, la Diputada Guerrero indicó: “Reiterar lo que dijo Álvaro Ramos. Este no es un tema en contra, es a favor de la clase trabajadora. Ese texto sustitutivo mejora, pero no sostiene la sanidad del régimen. Un régimen que va a terminar en el presupuesto nacional de la República, si se quiere la sanidad, un régimen además que no garantiza la expectativa de pensión de las personas que hoy están cotizando o tendrán que entrar a cotizar el doble; igual que el patrono e igual que el Estado. Es decir, va al presupuesto central…” (folio 1754 tomo 8 expediente legislativo) Por otra parte, como se indicó supra, estima la mayoría de la Sala que, ante la comprobaba necesidad pública y legitimidad de intervención de las autoridades, los medios previstos en la normativa impugnada para lograr el fin perseguido son adecuados para alcanzar efectivamente dicho fin. Como se indicó supra, el Instituto de Investigaciones en Ciencias Económicas (IICE) en el oficio IICE-186-2017 citado, se refiere a los cambios efectuados como técnicamente idóneos porque actúan a favor de la solvencia del fondo. Como se explicó, el legislador adoptó una elección intermedia entre los dos marcos recomendados, elección respecto de la que no se ha demostrado que haya implicado una desmejora sustancial y relevante de las condiciones de los participantes del fondo, frente a las ofrecidas en los marcos IICE3 o el IICE4, esto porque como se explicó, lo ocurrido fue un intercambio de unas ventajas por otras, siempre dentro los límites fijados en los marcos propuestos por el ente técnico, y sin que existan en este expediente otros estudios técnicos o peritajes del mismo nivel o equivalentes que con datos precisos y fiables permitan afirmar que -valoradas todas las condiciones y no sólo las escogidas- existía una opción técnica disponible para el legislador, que generaría las mismas garantías de sostenibilidad que se buscaban para el fondo, pero ofreciendo a la vez niveles de protección clara y contundentemente mayores de los derechos fundamentales en juego. Precisamente, la labor del legislador consiste en sopesar los diferentes intereses y necesidades en juego y construir -dentro del espacio ofrecido por el marco técnico, pero también con fundamento en motivos de conveniencia y oportunidad- la estructura normativa que, según su criterio, resulte ser la que mejor se adapta a la finalidad estatal perseguida. Es esa su labor como representantes del pueblo y no debe esta Sala sustituir tal competencia ni la potestad de elaborar, con los elementos técnicos aportados, una solución al problema real presentado por la situación financiera del Fondo de Jubilaciones y Pensiones del Poder Judicial. Como bien ha señalado la Corte Interamericana, en temas económicos y presupuestales o de apropiación de recursos, el legislador tiene una amplia libertad de configuración, motivo por el cual en estos casos, los eventuales juicios de proporcionalidad que se hagan, deben tener una intensidad leve, que es precisamente la categoría de derechos en análisis, donde se debe buscar un equilibrios entre los derechos individuales y colectivos para superar el peligro que existía de afectar el patrimonio del conjunto de los afiliados colectivos que integren el régimen previsional de los Empleados y Funcionarios del Poder Judicial poniendo en riesgo la sostenibilidad de los actuales y futuros beneficiarios y potencialmente de las finanzas del Estado, que tenían que asumir a los pensionados y jubilados presentes y futuros si no se lograba equilibrar el régimen.

Los accionantes aportan una serie de ejemplos de afectaciones hipotéticas sobre lo desproporcionadas que resultan las medidas para varios sectores, pero no aportan un estudio actuarial que permita refutar el existente en el expediente legislativo, que sí toma todas las variables en juego (no sólo las seleccionadas), las cuales deben ser valoradas integralmente. Asimismo, con las acciones interpuestas buscan volver al escenario anterior a la reforma, técnicamente desechada expresamente por el IICE en sus diversos estudios y que sí tiene la capacidad de afectar o poner en peligro la sostenibilidad del régimen de pensiones del Poder Judicial como se comprobó con el estudio de Melinsky y el de la Universidad de Costa Rica. Asimismo, la prueba para mejor resolver solicitada por esta Sala a la Junta Administradora del Fondo de Pensiones del Poder Judicial ( ver expediente judicial), demuestra que las medidas adoptadas por el legislador, han sido idóneas para devolverle solvencia al Fondo que ha tenido una recuperación sustancial en los años de vigencia de la normativa impugnada.

En conclusión, a juicio de la mayoría de esta Sala, la Asamblea Legislativa no infringió los principios constitucionales de razonabilidad y proporcionalidad al tomar elementos de los marcos normativos IICE3 e IICE4 y de las comparecencias de las autoridades de la SUPEN y el Ministerio de Hacienda, y construir con ellos, un marco normativo para ajustar todas las necesidades en juego y cumplir la finalidad de remediar los reconocidos problemas que padecía el fondo de Jubilaciones y Pensiones del Poder Judicial y así evitar un daño más grave a los intereses de los agremiados y del interés público, de manera que en ese punto la acción debe desestimase. Incluso, al momento de dictarse la presente sentencia, se ha constatado que el déficit actuarial de régimen se ha reducido de manera significativa, lo que demuestra que las medidas adoptadas fueron necesarias, proporcionales e idóneas.” Luego, en ese mismo voto se indicó lo siguiente:

“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.

De la lectura del precedente parcialmente transcrito se puede constatar que esta Sala concluyó, por mayoría, -conforme a las razones ampliamente desarrolladas en dicho voto- que la reforma al régimen jubilatorio del Poder Judicial, en lo atinente, específicamente, a los cambios introducidos en las condiciones de elegibilidad de las jubilaciones ordinarias y anticipadas de los servidores judiciales -incluida la exigencia de un mínimo de veinte años de servicio en el Poder Judicial para poder acogerse a una jubilación anticipada-, lejos de resultar arbitrario, caprichoso, infundado o discriminatorio, obedeció a la necesidad real de garantizar la solvencia del Fondo de Jubilaciones y Pensiones del Poder Judicial, así como que tales cambios fueron realizados dentro “dentro del marco constitucional legítimo de acción del legislador en materia jubilatoria”, con fundamento en un “adecuado sustento técnico”. Concluyó -como así se razonó en ese voto- que tales modificaciones en los requisitos para el otorgamiento de las jubilaciones ordinarias y anticipadas de los servidores judiciales eran constitucionalmente válidas, como medidas razonables y proporcionadas para garantizar la solvencia y estabilidad del fondo, en atención a los criterios técnicos aportados al respectivo expediente legislativo. En definitiva:

“(...) 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.”

Consideraciones aplicables al sub lite, en tanto no se aportan otros criterios o estudios técnicos que permitan llegar a una conclusión distinta.

IV.- En continuación de lo anterior, debe reiterarse que la parte accionante no aporta otros criterios o estudios técnicos que permitan llegar a una conclusión distinta a la ya desarrollada en el referido voto nro. 2021-011957. De hecho, la fundamentación y reproches de la parte accionante se centran, esencialmente, en la aplicación de la normativa impugnada a el caso particular de la funcionaria Barrantes Venegas; sin embargo, en plena consonancia con lo ya resuelto en el supra citado voto nro. 2021-011957, la mera referencia a la aplicación de la normativa impugnada a un caso concreto, no puede sustituir la existencia de prueba técnica que permita acreditar, adecuadamente, que “los cambios en las condiciones de elegibilidad... 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”. Asimismo, no procede que, mediante una acción de inconstitucionalidad, se resuelva el caso concreto o particular de dicha persona. Debe recordarse que esta Sala ha señalado que el:

“(...) objeto de un proceso de inconstitucionalidad no es atender una lesión individual que pueda alegar el actor, por el contrario, tiene como objeto un interés general de que los actos sujetos al derecho público y las normas que integran el ordenamiento jurídico, sean conformes con el Derecho de la Constitución.” (voto nro. 2013-002902 de las 14:30 horas del 5 de marzo de 2013).

V.- En el apartado de legitimación del escrito de interposición, el accionante hizo expresa referencia a la pensión por orfandad -que es un supuesto de pensión por sobrevivencia, previsto en el artículo 228 de la Ley Orgánica del Poder Judicial-, lo que parece obedecer a un mero error material, pues todos los alegatos de fondo del accionante, así como la petitoria formulada en el escrito de interposición, se centran, específicamente, en lo referente a la jubilación anticipada de los servidores judiciales, regulada en el citado numeral 224 bis de ese mismo cuerpo normativo. No obstante, cabe señalar que esta Sala también se pronunció expresamente respecto a las pensiones por sobrevivencia, en el supra citado voto nro. 2021-011957, en el siguiente sentido:

“LXXIII. Redacta la Magistrada Hernández López. Sobre el derecho a la pensión por sobrevivencia. - De conformidad con la Organización Internacional del Trabajo (OIT), la Protección Social es un derecho humano, esencial para alcanzar un desarrollo sostenible, conformado por conjuntos de garantías básicas de seguridad social, definidos a nivel nacional, que aseguran una protección destinada a prevenir o aliviar la pobreza, la vulnerabilidad y la exclusión social. A su vez, la seguridad social consiste en los sistemas previsionales y económicos que cubren los riesgos a que se encuentran sometidas ciertas personas, principalmente los trabajadores, a fin de reparar o, al menos, mitigar los daños, perjuicios y desgracias de que puedan ser víctimas involuntarias o sin mala fe (ver sentencia número 2007-017971 de las 14 horas y 51 minutos del 12 de diciembre del 2007). De interés para este apartado, interesa decir que, para la OIT, la seguridad social es “la protección que la sociedad proporciona a sus miembros, mediante una serie de medidas públicas, contra las privaciones económicas y sociales que de otra manera derivarían de la desaparición o de una fuerte reducción de sus ingresos como consecuencia de enfermedad, maternidad, accidente del trabajo o enfermedad profesional, desempleo, invalidez, vejez y muerte; también la protección en forma de asistencia médica y de ayuda a las familias con hijos" (ver Introducción a la Seguridad Social. O.I.T. Ginebra, 1987, p. 3). La seguridad social es un instrumento esencial para crear cohesión social, contribuye a garantizar la paz social y la integración social, forma parte indispensable de la política social de los gobiernos y es una herramienta importante para evitar y aliviar la pobreza; administrada correctamente aumenta la productividad al proporcionar asistencia médica, seguridad de ingresos y servicios sociales y aunque representa un costo para las empresas, es también una inversión en las personas y, a la vez, un apoyo para éstas (ver Seguridad Social: un nuevo consenso. OIT. Ginebra, 2002, p. 1y 2). Dentro del grupo de prestaciones contenidas por la seguridad social en Costa Rica, se encuentran las “pensiones por sobrevivencia” que son aquéllas que -previo cumplimiento de los requisitos legalmente establecidos- pueden ser otorgadas a los familiares que sobreviven al trabajador o trabajadora activa que fallece, independientemente de que la causa de la muerte sea por enfermedad, accidente laboral u otros. De este modo, los “sobrevivientes” en el contexto de la seguridad social, hacen referencia a la pareja del trabajador o trabajadora y a sus huérfanos, adquiriendo especial relevancia su protección porque, justamente, al perderse por muerte una parte importante del sostén de una familia, se hace indispensable garantizar a sus deudos el continuar contando, al menos, con las condiciones mínimas necesarias para sobrevivir mientras se logran acomodar a la nueva situación y es ahí donde cobran sentido las políticas de protección social en la medida en que contribuyen a prevenir y reducir la pobreza, la desigualdad, promover la inclusión social y el respeto por la dignidad humana; que contribuyen a dotar a las personas de una vida digna y plena en los términos en que lo expone el artículo 2 de la Ley Integral para la Persona Adulta Mayor, Nº 7935 de 25 de octubre de 1999. De conformidad con la doctrina, la rama de prestaciones de sobrevivientes de la seguridad social fue concebida originalmente dentro de una forma de vida familiar tradicional, compuesta por esposo, esposa e hijos, en la cual la mujer casada permanecía en su hogar ocupándose de quehaceres domésticos y de la crianza de los hijos, mientras que, el encargado de dar sustento a la familia, era el marido y padre. Dentro de ese contexto, si el hombre fallecía, su viuda y los huérfanos quedarían privados de su sustento, expuestos a múltiples vicisitudes como la pobreza, carencia de condiciones mínimas de vida, imposibilidad de acceso a la salud y a la educación, entre otros, y por ello se ideó como parte de la seguridad social, las pensiones por sobrevivencia. Posteriormente, con la incorporación de la mujer a la vida laboral y la modificación del esquema tradicional de familia, aquellas prestaciones de sobrevivencia se han convertido en “prestaciones familiares o de personas a cargo”, las cuales, a pesar de que siguen estando destinadas principalmente a la pareja del trabajador o trabajadora fallecidos y a los huérfanos, no necesariamente van encaminadas a proveerles de sustento básico, sino que llegan a colaborar con el aporte económico que el asegurado (a) fallecido (a) generaba en su núcleo familiar, a efecto de que la familia pueda continuar manteniendo un cierto nivel de vida de acuerdo al que usualmente disfrutaba; aporte que es de gran relevancia sobre todo cuando se toma en cuenta que pudieren existir niños pequeños o personas con discapacidad, cuyas necesidades económicas suelen ser de gran magnitud. En Costa Rica, la legislación que regula esta materia se ha sustentado en los principios sentados en los Convenios 102 y 128 así como en la Recomendación 131, ambos de la Organización Internacional del Trabajo, sin que el Poder Judicial haya sido una excepción pues su Ley Orgánica ha incluido ese tipo de protección. En ese sentido y antes de aprobarse la reforma por Ley 9544 aquí impugnada, en caso de fallecimiento de un servidor activo del Poder Judicial, el otrora artículo 230 de la Ley Orgánica del Poder Judicial No. 7333, disponía:

“Artículo 230. Los funcionarios y empleados que hubieran servido menos de diez años, no tendrán derecho a jubilación ni sus parientes a pensión, salvo el caso previsto en el artículo 228. Sin embargo, si a causa del ejercicio de sus funciones se produjere la muerte del servidor—cualquiera que hubiera sido el tiempo servido por éste— además de las indemnizaciones que legalmente correspondan, sus beneficiarios tendrán derecho a una pensión temporal y proporcional, dentro de las condiciones que esta Ley prevé para esos casos”.

Como bien se desprende de la lectura de la norma, la Ley 7333 regulaba la posibilidad de que, en caso de que un trabajador activo del Poder Judicial falleciera, pero tuviera 10 o más años de servicio para la institución, sus parientes tendrían derecho a una pensión independientemente de las causas por las cuales se diera el deceso, estableciendo además la posibilidad de que, si la muerte se produjere como consecuencia del ejercicio de las funciones y el trabajador contaba con menos de 10 años de servicio, los parientes beneficiarios tendrían derecho a una pensión temporal y proporcional, según lo dispuesto por la Ley para esos casos. Es evidente que la norma establecía una amplia protección social a los deudos del fallecido en consonancia con los principios más básicos sentados en la materia por la Organización Internacional del Trabajo, en términos de constituirse en una medida a favor de aquéllos contra la incertidumbre y los riesgos de la vida que pueden derivar en afectaciones al bienestar presente y futuro pues no hay duda de que las condiciones socioeconómicas de una persona, potencian las desigualdades, la vulnerabilidad y la pobreza. Obsérvese que, según el anterior artículo 224 -de la Ley 7333-, para obtener la jubilación en condiciones regulares, un trabajador judicial debía contar con 30 años de servicio y por ello la norma transcrita supra disponía que los funcionarios y empleados que hubieran servido menos de diez años, no tendrán derecho a jubilación; sin embargo, el legislador con adecuada previsión social, y adelantándose a las situaciones excepcionales de la vida que pueden ocurrir, comprendió la necesidad de proteger a los parientes y dispuso que, superados 10 años de servicio, en caso de fallecimiento del trabajador o trabajadora activos, sus deudos sí tendrían derecho a una pensión proporcional por sobrevivencia. Es indiscutible que esta previsión es de gran relevancia en un Estado Democrático y Social de Derecho, además de que la muerte es parte innegable e integral del ciclo de la vida, por lo que se puede dar en cualquier momento; sin embargo, cobra especial relevancia en el caso del Poder Judicial pues muchos de sus empleados, en razón de sus funciones, se encuentran sometidos a serios riesgos que pueden acarrearla y, por esta razón, aquél legislador también dispuso en esa norma que si la muerte del servidor se produjere a causa del ejercicio de sus funciones, en ese supuesto no importaría el tiempo de servicio que tuviere el trabajador, pues aun cuando fuere menos de 10 años, sus beneficiarios tenían derecho a una pensión temporal y proporcional, dentro de las condiciones que disponía la Ley para esos casos. Es más que evidente que el legislador no sólo contaba con una amplia perspectiva social y garantista de derechos fundamentales, sino que también comprendía la trascendencia de la protección social como un mecanismo de blindar a las personas contra eventuales riesgos en el ciclo de la vida, como un aspecto determinante en la sociedad para impulsar la productividad, el trabajo decente, la transformación estructural de las economías nacionales a fin de reducir la pobreza, la exclusión social, la desigualdad, fortalecer la cohesión social y la estabilidad política. No obstante lo anterior, con la reforma introducida a la Ley Orgánica del Poder Judicial a través de la Ley 9544 aquí impugnada, la situación varía radicalmente, tal y como se argumenta en la acción de inconstitucionalidad No. 18-009275-0007-CO, en la cual los accionantes aducen que se “hace nugatorio ese derecho para futuros beneficiarios como quienes adquieren derecho a pensión por sobrevivencia (cónyuges, compañeros, padres dependientes) o por orfandad, personas inválidas o incapaces que dependan de la persona fallecida, pues estas, si el servidor no cumple 20 años de servicio al momento del fallecimiento, sin importar si había servido 30, 35 o 40 años en otra institución del sector público, quedarían desamparadas, descubiertas en dicha contingencia”, estimando que “lo anterior resulta inconcebible dentro del Estado Social de Derecho” y citan como ejemplo el caso de “una persona que ingrese a laborar al Poder Judicial de 50 años, ésta deberá esperar hasta los 70 años para poder jubilarse y peor aún si falleciera antes de cumplir esos años sus sobrevivientes no recibirían pensión alguna”, indicando además que lo más grave de este cambio radical de condiciones para los sobrevivientes es que se ha hecho sin contar con criterios técnicos que lo justifiquen y sin ofrecer mayor análisis por parte del Legislativo. Para comprender el alcance del alegato de los accionantes, debe observarse lo que disponen los numerales 228 y 229 de la Ley 9544 -aquí impugnada- que son los que regulan lo relativo a la pensión por sobrevivencia:

“Artículo 228- Tienen derecho a pensión por sobrevivencia:

• a)El cónyuge sobreviviente del servidor o jubilado fallecido que dependa económicamente del causante, al momento del fallecimiento.
• b)El compañero económicamente dependiente al momento del fallecimiento del jubilado, que haya convivido por lo menos tres años previos al deceso y tuvieran ambos aptitud legal para contraer nupcias, conforme la legislación civil.
• c)El cónyuge divorciado o separado judicialmente o de hecho, excompañero, que disfruta a la fecha del deceso de una pensión alimentaria, declarada por sentencia judicial firme o que demuestre que recibía una ayuda económica por parte del causante.

Tienen derecho a pensión por orfandad:

• 1)Los hijos que, al momento del fallecimiento del causante, dependían económicamente de este, de acuerdo con las siguientes reglas:

1.1) Solteros menores de edad.

1.2) Mayores de dieciocho años, pero menores de veinticinco años, que realicen estudios reconocidos por el Ministerio de Educación Pública (MEP), el Instituto Nacional de Aprendizaje (INA), u otras instituciones a criterio de la Junta Administradora.

1.3) Mayores de edad que, previo al fallecimiento del causante, se encuentren inválidos e incapaces para ejercer labores remuneradas.

En ausencia de los derechohabientes por viudez, unión de hecho u orfandad, tienen derecho a pensión los padres, si al momento de fallecer el causante dependían económicamente de este.

“Artículo 229- El monto de las prestaciones de pensión por sobrevivencia en los casos de viudez, unión de hecho, orfandad o ascendencia será proporcional al monto de pensión que recibía el pensionado al momento de fallecer, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que correspondía al causante. En caso de muerte de un servidor activo, la cuantía de la pensión por viudez, unión de hecho, orfandad o ascendencia será proporcional al monto de pensión que hubiera recibido el fallecido de acuerdo con el cumplimiento de requisitos en el momento de la contingencia, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que le hubiera correspondido al causante.

Las proporciones para los beneficios por viudez, unión de hecho, orfandad y ascendencia serán las que se estipulen en el reglamento del Régimen.

Toda pensión por sobrevivencia caducará por la muerte del beneficiario, a excepción de lo dispuesto en este artículo para la pensión que corresponde a los hijos.

Las asignaciones que caduquen acrecerán proporcionalmente las de los demás beneficiarios que se mantienen vigentes, a solicitud de ellos y siempre y cuando los requieran, previo estudio de trabajo social y aprobación de la Junta Administrativa del Fondo.

(Así reformado por el artículo 1° de la ley N° 9544 del 24 de abril de 2018) De la lectura de ambos numerales se observa que la afirmación de los accionantes cobra sentido cuando se piensa en el caso de un servidor o servidora activo del Poder Judicial que fallece y que constituía un sostén para las personas que le sobreviven pues obsérvese que, bajo la regla establecida en el numeral 229 de cita -actualmente vigente-, en caso de muerte de un servidor activo, la cuantía de la pensión para quienes resulten beneficiarios, “será proporcional al monto de pensión que hubiera recibido el fallecido de acuerdo con el cumplimiento de requisitos en el momento de la contingencia, y en su conjunto este monto no será mayor al ochenta por ciento (80%) de lo que le hubiera correspondido al causante”. Lo anterior significa que, tal y como lo mencionan los accionantes, sólo podrán ser beneficiarios con una pensión por sobrevivencia aquéllos deudos de un servidor que tuviere 20 años o más de servicio en el Poder Judicial, ello por cuanto la norma le exige al fallecido que estuviere en la posibilidad de cumplir con los requisitos establecidos en el artículo 224 anterior, o lo que es lo mismo, que tuviere 20 o más años de servicio en el Poder Judicial; norma que, además, no contempla ninguna posibilidad de beneficio para sus deudos en el caso de que la muerte de la persona trabajadora activa fuera consecuencia del ejercicio de sus funciones en la institución. Aunado a lo anterior, como bien lo afirman los accionantes, la norma se modificó para pasar a esta nueva redacción sin que exista algún sustento técnico que la justifique y, en ese sentido, basta con revisar el expediente legislativo al cual ha tenido acceso este Tribunal para comprobar que no existe ningún fundamento técnico acreditado en el expediente o en las comparecencias de los técnicos, en relación con la pensión por sobrevivencia, que justifique la diferencia que se está dando entre la Ley 7333 anterior y la reforma. La Sala ha podido comprobar que ninguno de los 6 Productos IICE que sirvieron de sustento al legislador para dictar la Ley 9544, contemplan alguna justificación técnica para retrotraer la protección social en esta materia; retroceso que evidentemente resulta contrario a los principios garantes de derechos fundamentales que deben ser tutelados por este Tribunal Constitucional pues a pesar de que en esta materia debe prevalecer la progresividad, en el caso concreto se retrocedió sin fundamento, al cambiar las condiciones para los sobrevivientes de personas trabajadoras con 10 años o más de servicio en el Poder Judicial, a 20 años o más de laborar en la institución. Aunado a lo anterior, para la Sala tal distinción tan gravosa entre el sistema anterior y el actual, hace que la norma reformada no sea razonable, por ende, carente de un contenido de justicia y, en ese sentido, debe recordarse que esta Sala ha señalado en el pasado que si “la distinción que establece una norma produce una situación de injusticia, tal norma no es razonable y, entonces, se quebranta el contenido del principio de igualdad recogido en el artículo 33 constitucional” (sentencia número 2001-03192 de las 10 horas 10 minutos del 25 de abril de 2001). Se estima que lo anterior es así porque, según se puede observar, frente a dos situaciones iguales -muerte de un trabajador o trabajadora activos del Poder Judicial-, la Ley 9544 acá impugnada, le da un tratamiento completamente diferente al que contenía la Ley 7333, ello a pesar de que entre la promulgación de una y otra ley han pasado casi 30 años y lo lógico es pensar que las sociedades vayan avanzando de manera positiva y progresista, no a la inversa. La situación real en la que han sido colocadas las personas que pudieren derivar beneficios en estas circunstancias, es lesiva de derechos fundamentales, abiertamente contraria a lo dispuesto por el artículo 51 constitucional según el cual, la familia, como elemento natural y fundamento de la sociedad, tiene derecho a la protección del Estado, destacando con especial relevancia el caso de la madre, el niño y la niña, las personas adultas mayores y las personas con discapacidad. Lo anterior significa que, aun cuando el Estado tiene la obligación de adoptar las medidas que sean necesarias para garantizar esa protección y dentro de ellas se encuentra, sin lugar a dudas, el reconocimiento de las prestaciones sociales derivadas de los trabajadores y trabajadoras activos en el Poder Judicial que tuvieren hijos o personas dependientes integrantes de aquél núcleo esencial, lo cierto del caso es que, con sustento en el artículo 229 de la Ley 9544, quedan en franco desamparo si aquél servidor (a) activo (a), no tenía 20 años o más de laborar para el Poder Judicial, en clara desmejora con el sistema anterior que tutelaba a los trabajadores con 10 años de servicio, o inclusive menos, si la muerte se derivó del ejercicio de sus funciones en el Poder Judicial, ello a pesar de que el fallecimiento de una persona trabajadora activa, generalmente refiere a situaciones excepcionalísimas, que cuando ocurren es de muy pocas personas y que precisamente por esa razón, el reconocimiento de la pensión a sus sobrevivientes, no implicaría una afectación de grandes dimensiones al Fondo de Jubilaciones y Pensiones del Poder Judicial. Así las cosas, lo que procede es mantener la vigencia de los 10 años que establecía el artículo 230 de la Ley 7333, de tal forma que la derogatoria de esa norma, En consecuencia, deberá entenderse que la pensión por sobrevivencia le corresponde a los deudos de la persona trabajadora activa del Poder Judicial que, al momento de la contingencia, tuviere 10 años o más de laborar en el Poder Judicial y, en el caso de que la muerte se produjere a causa del ejercicio de sus funciones, cualquiera que hubiera sido el tiempo de servicio, los beneficiarios tendrán derecho a una pensión temporal y proporcional de acuerdo a lo que disponga la ley además de las indemnizaciones establecidas por la normativa que regula la materia, ello por cuanto, como ya se indicó, el importe de la pensión pretende sustituir la ayuda que la persona fallecida otorgaba a las personas que de él dependían, de manera que no queden en una situación de indigencia o desamparo." Por lo que, finalmente, en la parte dispositiva, se resolvió que:

"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 aclara, nuevamente, que esto se resolvió propiamente respecto a las pensiones por sobrevivencia previstas en los artículos 228 y 229 de la Ley Orgánica del Poder Judicial, no así, respecto a las jubilaciones anticipadas reguladas en el citado ordinal 224 bis, que constituye propiamente el objeto de esta acción de inconstitucionalidad y que corresponde a un supuesto normativo distinto.

VI.- EN CONCLUSIÓN. Como corolario de lo anterior, procede rechazar por el fondo la acción interpuesta contra el artículo 224 bis de la Ley Orgánica del Poder Judicial, reformado por la Ley nro. 9544 del 24 de abril de 2018, como así se dispone.

VII.- NOTA DE LA MAGISTRADA GARRO VARGAS: Advierto que este asunto fue examinado por mi persona y consideré que no me asiste motivo de inhibitoria. Lo anterior en razón de que mi hermano Fabrizio Garro Vargas, cédula de identidad 1-775-688, Juez Superior de Trabajo, tiene más de 20 años de laborar para el Poder Judicial. De modo que la eventual declaratoria de inconstitucionalidad de la norma en nada le perjudica o beneficia.

VIII.- 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:

Se rechaza por el fondo la acción. La magistrada Garro Vargas consigna nota. Los magistrados Salazar Alvarado, Garita Navarro y Jara Velásquez salvan el voto en relación con la violación al artículo 167 de la Constitución Política 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).

Fernando Castillo V.

Paul Rueda L.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

José Roberto Garita N.

Rosibel Jara V.

VOTO SALVADO DE LOS MAGISTRADOS SALAZAR ALVARADO, GARITA NAVARRO Y JARA VELÁSQUEZ, CON REDACCIÓN DEL PRIMERO, EN RELACIÓN CON LA VIOLACIÓN DEL ARTÍCULO 167 CONSTITUCIONAL. Los suscritos magistrados (a) salvamos el voto en relación con este punto, aclarando que en el caso de los dos últimos (a), si bien no firmamos la redacción original del voto salvado, ahora hacemos nuestras las razones que se consignaron en la Sentencia N° 2021-11957 de las 17:00 horas del 25 de mayo de 2021, de modo que, en conjunto, lo reiteramos de la siguiente manera:

“Los suscritos magistrados salvamos el voto, y consideramos que es necesario abordar el problema de las acciones acumuladas desde la perspectiva de que en el procedimiento legislativo se incurrió en una violación grosera, manifiesta y evidente del artículo 167, de la Constitución Política, y que, por su relevancia, demanda la inconstitucionalidad de la totalidad de la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”.

Debe empezarse por señalar, que la Comisión Especial encargada para la tramitación del expediente legislativo N° 19.922, puso en conocimiento de la Corte Plena los respectivos proyectos de ley que se iban aprobando, para cumplir con lo establecido en el citado numeral 167. Las consultas a la Corte Suprema de Justicia ocurrieron en tres ocasiones; a saber:

• a)El proyecto de ley se consultó a la Corte Suprema de Justicia y el informe rendido se conoció en la sesión de Corte Plena N° 29-16 del 26 de septiembre de 2016, artículo XVIII, comunicándose a la Asamblea Legislativa, mediante oficio SP-288-16 del 28 de septiembre de 2016 con la indicación expresa de que el proyecto de ley consultado incide en la organización y funcionamiento del Poder Judicial.
• b)En una segunda ocasión, la Corte Plena en sesión N° 9-17 del 24 de abril de 2017, artículo XXIX, conoció la consulta que se le planteó y mediante oficio SP-118-17 de 26 de abril de 2017, en el que se puso en conocimiento de la Comisión Especial Legislativa que la Corte Plena había emitido el criterio negativo al proyecto de ley consultado, por incidir en la organización y funcionamiento del Poder Judicial.
• c)En una tercera ocasión, la Corte Plena en sesión N° 26-17 de 7 de agosto de 2017, artículo XXX, conoció de la consulta planteada por la Comisión Especial sobre el Dictamen Afirmativo de Mayoría, y se emitió el criterio negativo indicando que el proyecto de ley tramitado bajo expediente N° 19.922, incide en la organización, estructura y funcionamiento del Poder Judicial; decisión que se comunica a la Asamblea Legislativa mediante oficio SP-253-17 de 10 de agosto de 2017.

En todas y cada una de las consultas formuladas, la Corte Plena estableció que se trataba de proyectos de ley que afectaban su organización y funcionamiento, de modo que, con base en ese criterio negativo, de conformidad con el artículo 167, de la Constitución Política, y los principios de coordinación, respeto mutuo e igualdad, que informa las relaciones entre órganos constitucionales, entre dos poderes del Estado [sistema de frenos y contrapesos, checks and balances], se debía aprobar la ley con mayoría calificada. Además, se debe mencionar que el último de los proyectos que fue el Dictamen Afirmativo de Mayoría aceptado por la Comisión Especial el 27 de julio de 2017, no fue ese el final. Por el contrario, el texto del proyecto fue objeto de mociones de fondo y reiteración aceptadas por la Comisión Especial, sobre las que votó posteriormente el Plenario Legislativo en Primer Debate, en la sesión extraordinaria N° 14 del 30 de octubre de 2017 (folios 4000, 4306 a 4327 del expediente legislativo). De este modo, el texto votado por el Plenario Legislativo en Primer Debate fue el texto modificado manteniendo algunos de los puntos sobre los cuales la Corte Plena había emitido su criterio negativo, entre ellos, la instalación de una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial en perjuicio de las competencias del Consejo Superior del Poder Judicial. Pero además, debe indicarse que contenía otros cambios sustanciales al proyecto de ley, entre ellos los que agravaron algunas condiciones para los funcionarios judiciales, para el goce y disfrute del derecho a la pensión y jubilación, situación que la Corte Plena debía pronunciarse -respecto del artículo 167, Constitucional- por su relevancia en el Derecho de la Constitución. Estas modificaciones fueron votadas en el Primer Debate, y quedaron aprobadas en el Segundo Debate. Lo anterior, sin haberse hecho la consulta institucional al proyecto aprobado en Comisión y que posteriormente fue votado por el Plenario en la sesión extraordinaria N° 14 del 30 de octubre de 2017.

Si bien, la Asamblea Legislativa consideró era innecesario hacer la consulta al Poder Judicial del texto final, aprobado en Comisión Especial del 27 de julio y las subsiguientes modificaciones realizadas por mociones de fondo y reiteración, y continuar con el trámite legislativo siguiendo el criterio de la Sala la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, dado que esas modificaciones al régimen de pensiones del Poder Judicial no afectaban la estructura y funcionamiento del Poder Judicial, ni el contenido esencial de la independencia judicial, ello no es de recibo para los suscritos juzgadores, como se desarrollará más adelante. Además, hay un patrón de agravamiento a las condiciones de los funcionarios del Poder Judicial que se pueden enumerar de algunas disposiciones que fueron modificadas por las mociones de fondo y de reiteración que quedaron plasmados en el texto aprobado en Comisión, que implicaban un cambio sustancial en el proyecto anteriormente consultado. Como se indicó, este último texto fue aprobado en Primer Debate el 30 de octubre de 2017, según el cual, con un ejercicio de comparación, se observan algunas de las siguientes modificaciones sustanciales de consideración, como por ejemplo las siguientes:

• a)En el artículo 224, se estableció el agravamiento de un 85% del promedio de los últimos veinte años de salarios mensuales ordinarios devengados en la vía laboral, y se modifica para establecerlo en un 82% del promedio de los últimos veinte años de salarios mensuales ordinarios.
• b)En el artículo 229, similar disminución corrió el régimen por sobrevivencia, donde por la muerte del servidor activo la cuantía por viudez, unión de hecho u orfandad disminuiría de un 85% a un 80%.
• c)En el artículo 227, similar ocurre por la incapacidad permanente (invalidez) del funcionario de un 85% a un 83%.
• d)En lo que respecta a los ingresos del fondo de pensiones y jubilaciones del Poder Judicial, se evidencia que se establecía un aporte obrero de entre un once por ciento (11.00%) y un quince por ciento (15%) de los sueldos que devenguen los servidores judiciales, y de las jubilaciones y pensiones a cargo del fondo. Finalmente, quedó aprobado en un trece por ciento fijo (13%), lo que implica que el piso o base del aporte obrero no podría disminuirse al porcentaje menor del once por ciento. Si bien se elimina el extremo superior, el porcentaje fijo eliminó la disminución a favor del empleado judicial, quien históricamente viene aportando una suma importante al fondo.

De este modo, al contrario del criterio de la mayoría de la Sala, que se sustenta de forma importante en la doctrina de la Sentencia N° 2018-005758 de las 15:40 horas del 12 de abril de 2018, antecedente en el cual los suscritos suscribimos un voto salvado junto al magistrado Cruz Castro, consideramos que la Ley N° 9544 denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, contiene el vicio sustancial del procedimiento legislativo, por la violación a la norma constitucional que impone la consulta constitucional, con base en los argumentos que se exponen a continuación.

A.- Texto de la ley no consultado a la Corte Suprema de Justicia.

A la base de la discusión, tal y como bien se afirma en el voto de mayoría, está la determinación de si, al tenor de lo dispuesto en el artículo 167, de la Constitución Política, el órgano legislativo estaba o no en la obligación de consultar el citado proyecto de ley al Poder Judicial, deber que, por lo demás, ha sido incorporado en los artículos 126 y 157, del Reglamento de la Asamblea Legislativa, en los cuales se estipula el procedimiento que ha de observarse al efecto. Del texto constitucional se colige, que la consulta obligatoria a la Corte Suprema de Justicia sólo es tal si el proyecto de ley se refiere a la organización o funcionamiento del Poder Judicial. De modo, que el meollo del asunto está en lo que se ha de entender por “organización o funcionamiento del Poder Judicial”.

Al respecto, el voto de mayoría sostiene, que cuando la Carta Política Fundamental hace referencia a la organización y funcionamiento del Poder Judicial, se refiere -únicamente- a la afectación de la función jurisdiccional, y no de la propiamente administrativa. En abono de esta posición, se citan las Sentencias N° 1998-5958 de las 14:54 del 19 de agosto de 1998, N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 y N° 2008-5179 de las 11:00 horas del 4 de abril de 2008. Asimismo, en relación con el tema concreto del Fondo de Pensiones y Jubilaciones del Poder Judicial y la obligación de la Asamblea Legislativa de consultar a la Corte Suprema de Justicia los proyectos de ley que versan sobre aquel, el voto de mayoría cita las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, con base en las cuales concluye, que en esos casos, la Asamblea Legislativa no está obligada a consultar el proyecto de ley a la Corte Suprema de Justicia, en los términos dispuestos en el artículo 167, Constitucional. Sin embargo, a criterio de los suscritos, tal interpretación del numeral constitucional, restringida únicamente a la función jurisdiccional, no se deriva ni del texto de la Carta Fundamental, ni de la jurisprudencia de esta Sala. En efecto, en cuanto a los precedentes de cita, es de destacar, que con respecto a las tres primeras sentencias, de ellas no se infiere lo que, en su voto, sostiene la mayoría. Así, en la Sentencia N° 1998-5958 de las 14:54 del 19 de agosto de 1998, lo que se desarrolla es solo el término “funcionamiento” -del binomio “organización o funcionamiento”- del Poder Judicial, sin referirse al tema de la organización de ese Poder de la República. En concreto, en la cita que se hace de ese voto, la Sala claramente indica que “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados”, con lo cual se hace evidente, que el tema de la organización -que es el que aquí interesa- no fue desarrollado en dicha resolución, simplemente, porque el caso no lo requería, ya que se trató de la consulta legislativa preceptiva de constitucionalidad sobre el proyecto de “Adición de un nuevo Capítulo IV, denominado “Del recurso de hábeas data”, al Título III de la Ley de la Jurisdicción Constitucional, ley Nº 7185 del 19 de octubre de 1989”, que se tramitó en el expediente legislativo número 12.827, donde el tema en discusión era que la reforma afectaba la función jurisdiccional del Poder Judicial. Que esto es así, se desprende del propio texto de la sentencia que no se cita con la debida amplitud en el voto de mayoría: “…los asuntos que preceptivamente requieren de una consulta a la Corte Suprema de Justicia son aquellos que se refieran "a la organización o funcionamiento del Poder Judicial", donde el término "funcionamiento" alude no sólo a los aspectos de régimen interno administrativo de los despachos judiciales, sino también a las cuestiones procesales que rigen la sustanciación de los diversos asuntos sometidos a esos estrados. Y, en Costa Rica, la jurisdicción constitucional es indudablemente judicial, desde que tanto la Constitución Política como la Ley de la Jurisdicción Constitucional integran a esta Sala dentro de la estructura de la Corte”. Hecha la cita en su contexto, no se puede inferir, que la Sala haya restringido el binomio “organización o funcionamiento” meramente a lo jurisdiccional, sino que, en el caso de cita, este Tribunal Constitucional únicamente se refirió al aspecto de la función jurisdiccional del Poder Judicial, porque era el tema en discusión, sin hacer exclusión, ni referirse al tópico de la organización administrativa de dicho Poder de la República. Lo mismo cabe decir en relación con la Sentencia N° 2001-013273 de las 11:44 horas del 21 de diciembre de 2001 a la que alude la mayoría. Se trata de una consulta legislativa facultativa de constitucionalidad respecto del proyecto de ley de “Modificación del Código Penal, Ley número 4573 y sus reformas”, expediente legislativo número 14.158. Nuevamente, se trató de una reforma que afectaba directamente la función jurisdiccional del Poder Judicial, no su organización administrativa. De allí que, en este caso, tampoco la Sala desarrolló este último tema, por resultar ocioso. Es por ello, que la discusión de fondo se centró y agotó en los aspectos de la función jurisdiccional del Poder Judicial: “…dicha consulta [la del artículo 167, de la Constitución Política] resulta obligatoria cuando lo discutido en la Asamblea es un proyecto de ley que pretenda establecer reglas de funcionamiento y organización del Poder Judicial, entendido esto no apenas como las disposiciones que regulen la creación de tribunales de justicia o competencias jurisdiccionales, sino incluso aquellas que dispongan sobre modo de ejercicio de dichas competencias, es decir, sobre la forma en que el Poder Judicial lleva a cabo su función jurisdiccional, incluidas normas propiamente procesales”. Ciertamente, es evidente que lo expresado se limitó a examinar lo relativo al ejercicio de las competencias jurisdiccionales de los Tribunales de Justicia, toda vez que era sobre ese aspecto en particular que versó esa consulta. Pero, la Sala no dijo que este sea el único extremo en que la consulta del numeral 167, de la Constitución Política, sea obligatoria, sino que lo que dijo es que, en ese caso, es obligatoria, sin referirse a otros casos en que también lo sea, como lo es lo referente a la organización y competencias administrativas del Poder Judicial.

Comentario separado merece la Sentencia N° 2008-5179 de las 11:00 horas del 4 de abril de 2008, puesto que aquí, a diferencia de la lectura que hace la mayoría, sí se establece que lo relativo a la organización administrativa del Poder Judicial cae dentro de la consulta obligatoria que estipula el citado artículo 167, Constitucional. En esa ocasión, este Tribunal Constitucional, como intérprete máximo de la Constitución Política, al referirse a los términos de “organización o funcionamiento” del Poder Judicial, contenidos en el artículo 167, de la Carta Política, como condición de la consulta obligatoria a ese Poder de la República por parte de la Asamblea Legislativa, consideró “…que un proyecto de ley versa sobre tales extremos cuando contiene en su articulado normas explícitas que disponen la creación, la variación sustancial o la supresión de órganos estrictamente jurisdiccionales o de naturaleza administrativa adscritos al Poder Judicial o bien crea, ex novo, modifica sustancialmente o elimina funciones materialmente jurisdiccionales o administrativas…”. No se trata de un cambio de criterio de este Tribunal en la materia, sino, dentro de la línea jurisprudencial ya trazada, de una mayor determinación de los términos “organización o funcionamiento” que emplea el artículo 167, de la Constitución Política, para establecer los casos en los cuales los proyectos de ley que estén en la corriente legislativa deben ser consultados -obligatoriamente- a la Corte Suprema de Justicia. Esta sentencia no amplió, en modo alguno, los supuestos de consulta obligatoria; por el contrario, lo que hizo fue definirlos de una manera más amplia y precisa. Por ello, allí claramente se determinó, que en esos casos, pero solo en estos, la consulta es obligatoria. Así se entiende que, en esa misma sentencia, se expresara: “[c]abe apuntar que tal exégesis se impone en aras de mantener el equilibrio de poderes, sin privilegiar a uno u otro órgano constitucional, de manera que cada uno pueda ejercer sus funciones de manera independiente y separada como lo impone el propio texto constitucional (artículo 9° de la Constitución). En otros términos, la precisión de tales conceptos evita cualquier colisión, extralimitación o exacerbación de las respectivas funciones, en aras de mantener el equilibrio y la contención de los poderes, por cuanto, el fin de la norma lo constituye no sólo la independencia funcional y la autonomía presupuestaria del Poder Judicial, sino, también, el equilibrio entre el Poder Legislativo y Judicial. En efecto, una interpretación amplia de los términos empleados por el constituyente originario, por parte de la Corte Plena, podría conducir a que determinadas materias que, en sentido estricto no están referidas a la organización y funcionamiento del Poder Judicial, ameriten, injustificadamente, de una ley reforzada, con lo cual se ralentiza o entorpece, innecesariamente, la función legislativa. De otra parte, la desaplicación por la Asamblea Legislativa de la norma constitucional, al considerar, equívocamente, que el proyecto no versa sobre organización y funcionamiento del Poder Judicial, podría provocar una lesión a la independencia funcional y autonomía presupuestaria del Poder Judicial”. De lo anterior se colige, que todo lo relativo a la materia de organización y funcionamiento del Poder Judicial, pero solo y estrictamente esto -para guardar el equilibrio entre independencia funcional y autonomía presupuestaria del Poder Judicial, por un lado, y la libertad de configuración del legislador ordinario, por otro-, es lo que obliga al órgano legislativo a realizar la consulta ante la Corte Suprema de Justicia, sin que se pueda extender a otras materias. En este sentido, no hay la menor duda, de que la Sala Constitucional ha entendido que lo relativo a la organización administrativa del Poder Judicial, y no sólo lo concerniente a la afectación, directa o indirecta, de la función jurisdiccional, obliga al órgano legislativo a plantear la consulta en los términos expresados en el artículo 167, de la Constitución Política. Y no podría ser de otra manera, ya que la afectación o modificación de la organización administrativa del Poder Judicial en general -y no solo lo atinente a los órganos jurisdiccionales o judiciales en sentido estricto- también repercute en el servicio de Administración de Justicia que presta, y en la independencia que constitucionalmente se garantiza a ese Poder y a los jueces como funcionarios llamados a impartir justicia.

Por otra parte, las Sentencias N° 1995-3063 de las 15:30 del 13 de junio de 1995 y N° 2002-4258 de las 9:40 del 10 de mayo de 2002, que se citan en el voto de mayoría como fundamento para concluir que los proyectos de ley relativos al tema específico del Fondo de Pensiones y Jubilaciones del Poder Judicial no necesitan ser consultados a la Corte Suprema de Justicia, tampoco tienen la virtud de dar el fundamento que, en relación con esta materia, afirma que tienen la mayoría de la Sala.

En la primera de dichas sentencias, la Sala conoció unas acciones de inconstitucionalidad acumuladas planteadas contra la Ley Marco de Pensiones, Ley N° 7302 de 8 de julio de 1992. Este Tribunal, en aquella ocasión, lo único que afirmó es que, en el caso de la Ley Marco de Pensiones, no existió la obligación constitucional de consultar al Poder Judicial el proyecto de ley respectivo, por la sencilla razón, de que dicho proyecto no afecta a los servidores judiciales; y, por lo tanto, no cae dentro de lo preceptuado por el artículo 167, de la Constitución Política. Asimismo, en el voto de cita, se indica que el funcionamiento está referido a la función jurisdiccional, pero no hace alusión alguna al tema de la organización del Poder Judicial, que es de lo que aquí se trata.

De igual modo, en la Sentencia N° 2002-4258 de las 9:40 del 10 de mayo de 2002, la Sala conoció de acciones de inconstitucionalidad acumuladas interpuestas contra el artículo 4, de la Ley N° 7605, de 2 de mayo de 1996, en cuanto reforma los artículos 224, 226 y 236, incisos 1) y 2), de la Ley Orgánica del Poder Judicial, N° 7333 de 5 de mayo de 1993, así como, por conexidad y consecuencia, contra el artículo 33, inciso a), del Reglamento de Invalidez, Vejez y Muerte de la Caja Costarricense de Seguro Social. La Sala descartó, entre otros temas alegados, la violación al artículo 167, de la Constitución Política, por el hecho de que la reforma al régimen de pensiones de los servidores judiciales que se impugnó, no tenía relación con la organización ni el funcionamiento del Poder Judicial, para cuya definición hizo referencia a lo dicho al respecto en la Sentencia N° 1995-3063 de las 15:30 del 13 de junio de 1995, que, como ya se dijo, solo se refirió al término del funcionamiento del Poder Judicial, sin hacer referencia alguna al tema de su organización. De modo tal, que, a diferencia del criterio externado por la mayoría, dichas sentencias no excluyen la materia relativa al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, sino solo en el tanto y en el cuanto el respectivo proyecto de ley no tenga relación directa con la “organización o funcionamiento del Poder Judicial”, temas que, ciertamente, no estaban involucrados en las acciones que se plantearon ante esta Sala y que fueron resueltas en las sentencias de cita. Con ello, no se excluye la materia concerniente al Fondo de Pensiones y Jubilaciones del Poder Judicial de la consulta obligatoria a la Corte Suprema de Justicia, como lo entiende la mayoría, ya que este tema, en sí mismo considerado, no está excluido de dicha consulta, sino que ello dependerá de si el proyecto de ley en cuestión contiene o no regulaciones relativas a la organización o el funcionamiento de ese Poder, aspecto que habrá que determinar de previo en cada caso para así establecer la obligatoriedad o no de dicha consulta.

En este punto, es importante aclarar, que la independencia funcional del Poder Judicial, establecida en el artículo 9, y reforzada en el artículo 154, ambos de la Constitución Política, implica, necesariamente, la potestad de dicho Poder de la República de darse su propia organización, con el fin de evitar, en especial, la intromisión de intereses políticos en su función. Y esta independencia organizativa, tanto administrativa como jurisdiccional, es la que también se tutela en el numeral 167, Constitucional. En este sentido, a criterio de los suscritos, es un grave error conceptual confundir o asimilar la función jurisdiccional en sentido amplio, con inclusión de la función auxiliar a la jurisdiccional, con la función estrictamente administrativa. La función jurisdiccional es una función especial y diferente a la función administrativa que prestan los funcionarios del Poder Ejecutivo o del sector descentralizado. Una cosa es la Administración de Justicia y otra muy distinta la Administración Pública, dadas las particularidades de la función jurisdiccional frente a la función meramente administrativa. Precisamente, una de esas características, sin la cual sería imposible ejercer correctamente la función jurisdiccional, es la independencia, en su doble vertiente, tanto de Poder Judicial en sí mismo considerado, como la del juez y demás auxiliares de la función jurisdiccional. Basta para comprender la delicada tarea que realizan los jueces de la República, con la colaboración de los funcionarios que los asisten y los auxilian en sus funciones y sin los cuales aquellos no podrían ejercer debidamente su función, con tener presente que ellos deciden los casos sometidos a su conocimiento con fuerza de cosa juzgada; es decir, deciden cuál es la verdad con fuerza de autoridad de ley en cada caso, sin que su decisión, una vez alcanzada esa condición, pueda ser, en principio, revisada. Esto implica una función sumamente delicada y una gran responsabilidad, la cual no podría llevarse a cabo si no se garantiza la independencia funcional del Poder Judicial y de los juzgadores que lo conforman. Y, en este sentido, no puede haber verdadera independencia, si los salarios y las pensiones y jubilaciones de los jueces y auxiliares de justicia no estuvieran acordes con sus responsabilidades, muchísimo más graves que las de cualquier otro funcionario que ejerza una función pública meramente administrativa. De allí, que unos y otros, de modo alguno, se puedan equiparar, ni en responsabilidades, ni en funciones, ni en salarios, ni en los derechos jubilatorios.

Existe consenso en la doctrina administrativa, en que la función jurisdiccional es, si no la más compleja, una de las más complejas y difíciles de llevar a cabo en el Estado Constitucional de Derecho en las sociedades modernas. Esto por cuanto, a diferencia de lo que se decida en los Poderes Legislativo y Ejecutivo, las decisiones del Poder Judicial, en ejercicio de la función jurisdiccional, son inapelables; es decir, tiene fuerza o autoridad de cosa juzgada. Esto no solo implica una gran responsabilidad, sino la necesidad de contar con una serie de principios y garantías que permitan el adecuado ejercicio de esa función. En este contexto, la independencia del Poder Judicial, tanto orgánica como funcional, se presenta como una condición sine qua non para el ejercicio de esa delicada función. Corresponde al juez decidir sobre la única y posible interpretación de la ley, de la Constitución y del parámetro de convencionalidad, lo cual sería imposible si no cuenta con la debida independencia. Pero esta independencia sería ilusoria si no implica, necesariamente, una adecuada remuneración y un derecho jubilatorio acorde con sus funciones y responsabilidades, tanto para el juzgador propiamente dicho, como para el personal que le auxilia y asiste en su función. Por ello, en materia de remuneración y jubilación, no puede equipararse con el sector administrativo. La necesidad de compensar la complejidad y dificultad que implica el ejercicio de la función jurisdiccional justifica, en torno al tema de la acción, que la jubilación o pensión de los servidores judiciales no sea igual a la del resto del sector público administrativo. Lo que se decida con fuerza de cosa juzgada en las instancias judiciales, tiene efectos trascendentales en la seguridad jurídica y en el derecho vigente en una sociedad; y, por ende, en la paz social. En todo esto, la independencia judicial juega un papel protagónico, pues en un Estado Constitucional de Derecho; es decir, en un Estado Democrático, ese principio tiene una proyección institucional en el Poder Judicial propiamente dicho, frente a cualesquiera de los otros Poderes del Estado, lo que también implica, indispensablemente, la independencia personal y funcional de la figura del juez, no solo en relación con esos otros Poderes del Estado, sino, incluso, frente a los jerarcas del Poder Judicial. Hoy por hoy, no hay Estado de Derecho si el Poder Judicial -con todos sus servidores incluidos-, no cuenta con una real y efectiva independencia. La independencia judicial es una garantía institucional establecida a nivel constitucional, sea, en el rango más elevado de la jerarquía de las normas, al punto que también se encuentra estipulada como un Derecho Humano. En efecto, la Convención Americana de Derechos Humanos ha establecido, como derecho humano, el ser oído por un juez imparcial. Al respecto, en el artículo 8.1, se establece:

“Artículo 8. Garantías Judiciales.

1. Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal o de cualquier otro carácter”.

La independencia judicial constituye un principio fundamental dentro del Estado Constitucional de Derecho. Pero esa independencia, para ser real, no solo debe ser organizativa y funcional, sino también económica. Esa independencia económica está también garantizada en el artículo 177, de la Constitución Política, al establecer que el proyecto de presupuesto ordinario deberá asignar al Poder Judicial al menos un 6% de los ingresos ordinarios calculados para el año económico. La intención del Constituyente originario, con la promulgación de esta norma -que establece un egreso constitucional atado-, es garantizar, entre otras cosas, que los jueces y el resto del personal auxiliar de la justicia, tuvieran una retribución adecuada a la complejidad y dificultad de la función jurisdiccional, lo que implica, una jubilación o pensión adecuada también a ello y a las prohibiciones especiales que dicha función implica para los servidores judiciales, las cuales no pesan sobre los servidores públicos de los otros Poderes del Estado. La norma constitucional previene que la asignación presupuestaria pueda convertirse en un instrumento de intervención política en la función jurisdiccional. Pero esto debe verse en toda su amplitud, ya que los salarios de los juzgadores y del personal auxiliar, así como el régimen de pensiones y jubilaciones que les es aplicable, tiene que guardar estricta relación con la labor que realizan, so pena de tornar nugatorio el principio de independencia judicial. De allí, que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Así las cosas, una forma de garantizar la independencia del Poder Judicial, de los Jueces de la República y de los auxiliares de justicia, es con una jubilación o pensión digna, acorde con sus funciones constitucionales.

En la exposición de motivos que dio lugar a la promulgación de la Ley de Jubilaciones y Pensiones Judiciales, como adición a la Ley Orgánica del Poder Judicial, el diputado Teodoro Picado Michalski, en fecha 2 de junio de 1938, expresó:

“Es el Poder Judicial uno de los tres principales sostenes en que descansa el Gobierno de la República; y es a sus servidores, a los que por ejercer muy delicadas funciones para la vida misma de la Sociedad, se exige, más que a otros empleados, mayor ilustración, probidad y trabajo. Y es por eso, seguramente, que al pedirse a los servidores judiciales una completa dedicación, durante largos años, a la importantísima tarea de administrar justicia, -con el noble fin de asegurarles su subsistencia al llegar a la vejez o cuando por padecimientos físicos ya no puedan trabajar,- que se ha venido instando ante el Congreso, en distintos períodos legislativos, la promulgación de una ley que contemple esa difícil situación de los funcionarios y empleados del Poder Judicial”.

No se debe soslayar, que las personas juzgadoras y el funcionariado judicial en general, está sometido a un régimen de prohibiciones y de incompatibilidades de mucha mayor intensidad y rigurosidad que el régimen de incompatibilidades y prohibiciones que afecta al resto de los funcionarios públicos, lo que lo hace de una naturaleza completamente distinta. Las regulaciones que se aplican al funcionariado administrativo de todo el sector público no pueden aplicarse también a los funcionarios judiciales. En este sentido, los principios de razonabilidad y proporcionalidad constitucional obligan a que ese régimen de incompatibilidades y prohibiciones asimétrico, que responde a la propia naturaleza de las funciones jurisdiccional y administrativa, deba tener una compensación económica, tanto salarial como al término de la relación laboral. Pero también el principio de igualdad, recogido en el artículo 33, de la Constitución Política, implica la prohibición de tratar como iguales a los desiguales, porque de ello se deriva una discriminación contraria al Derecho de la Constitución. En el caso de los jueces y funcionarios judiciales, existen condiciones objetivas, razonables, justificadas y fundadas en la propia naturaleza de la función jurisdiccional que se ejerce, para darles un trato diferente al del resto de los servidores públicos de las distintas administraciones, con lo cual, lejos de incurrirse en una discriminación, se tutela el principio de igualdad regulado en el citado numeral constitucional. Lo cual quiere decir, que si existe un régimen jubilatorio diferenciado para el sector jurisdiccional, ello no obedece a una decisión arbitraria, subjetiva o antojadiza del legislador, sino a la propia naturaleza específica y diferente de la función jurisdiccional que, objetiva y constitucionalmente, lo justifican.

Lo anterior no solo se deriva de nuestra propia Constitución Política y de los valores y principios que la informan, sino que está contenido en diversos instrumentos internacionales. Así, por ejemplo, en los “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11, se dice lo siguiente:

“11. La ley garantizará la permanencia en el cargo de los jueces por los períodos establecidos, su independencia y su seguridad, así como una remuneración, pensiones y condiciones de servicio y de jubilación adecuadas”.

Con lo cual, las Naciones Unidas recomienda a todos los países del mundo, que las normas jurídicas deben garantizar a los jueces una remuneración, pensiones, condición de servicios y de jubilación adecuadas y proporcionadas a la complejidad y dificultad de la función jurisdiccional que ejercen. Ello debe entenderse, también, extensivo a los funcionarios auxiliares de la justicia, pues, de otro modo, tal independencia sería imposible.

De igual modo, en la “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, en aras de lograr una independencia real y efectiva del Poder Judicial y de los funcionarios que administran justicia, así como de sus colaboradores y auxiliares, en los párrafos 6.1 y 6.4, se establece lo siguiente:

“6.1 El ejercicio profesional de las funciones judiciales da derecho a la remuneración del / de la juez, cuyo nivel será determinado con el fin de preservarle de las presiones destinadas a influir en sus resoluciones y en general en su actuación jurisdiccional, alterando de ese modo su independencia e imparcialidad.

6.4 En particular, el estatuto asegurará al / a la juez que haya alcanzado la edad legal de cese en sus funciones, después de desarrollarlas a título profesional durante un período determinado, el pago de una pensión de jubilación cuyo importe se aproximará en lo posible al de su última retribución de actividad judicial”.

El citado instrumento pretende lograr un Poder Judicial real y efectivamente independiente, lo que es una garantía a favor de la ciudadanía. De modo tal, que la adecuada remuneración y pensión de los jueces y de los auxiliares de justicia, en los términos allí expresados, constituye la debida y razonable consecuencia del ejercicio de una función delicada y de mucha dificultad y responsabilidad.

También, el “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32, se hace eco de los mismos principios ya citados, al estatuir:

“Art. 32. Remuneración.

Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”.

Y, en el artículo 33, dispone:

“Art. 33. Seguridad Social.

El Estado debe ofrecer a los jueces su acceso a un sistema de seguridad social, garantizando que recibirán, al concluir sus años de servicio por jubilación, enfermedad u otras contingencias legalmente previstas o en caso de daños personales, familiares o patrimoniales derivados del ejercicio del cargo, una pensión digna o una indemnización adecuada”.

Debe tenerse presente, que la jubilación y la pensión forman parte de los Derechos Económicos, Sociales y Prestacionales contenidos en el Pacto Internacional de Derechos Económicos, Sociales y Culturales, adoptado y abierto a la firma, ratificación y adhesión por la Asamblea General de las Naciones Unidad, en su resolución 2200 A (XXI), de 16 de diciembre de 1966. Estas regulaciones también han sido acogidas en el Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces, dicho Consejo recomendó:

“…es generalmente importante (y especialmente en el caso de las nuevas democracias) fijar disposiciones legales específicas que garanticen unos salarios de jueces protegidos contra reducciones y que aseguren de facto “el aumento de los salarios en función del coste de vida”.

Estas recomendaciones son de total aplicación al tema de las pensiones y jubilaciones de los jueces y de los servidores judiciales en general, ya que están íntimamente relacionadas con el principio de independencia del Poder Judicial, tal y como ya ha quedado expuesto.

Pero no solo en el ámbito internacional se ha regulado esta materia en los términos dichos, sino que también ha sido objeto de regulación a lo interno del Poder Judicial, con consideraciones semejantes a las dichas.

En efecto, la Corte Plena aprobó el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces, en sus diferentes facetas. En el artículo 24, relativo a las condiciones materiales de la independencia judicial, se establece que el Estado debe garantizar “la independencia económica del Poder Judicial, mediante la asignación del presupuesto adecuado para cubrir sus necesidades y a través del desembolso oportuno de las partidas presupuestarias”, lo cual está íntimamente relacionado con lo dispuesto en el ya citado artículo 177, de la Constitución Política, en cuanto a la asignación constitucional de un mínimo del Presupuesto Ordinario para el Poder Judicial, como manifestación de esa independencia.

Asimismo, el artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez: “Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”. Como ya se explicó, esta especial regulación tiene su fundamento en la independencia del Poder Judicial, lo cual debe ser también extendido al tema de la pensión o jubilación de los jueces y del personal auxiliar de la justicia, pues de otro modo, el principio de independencia judicial no sería posible.

El respeto a la independencia judicial, que es uno de los fines que persigue el artículo 167, Constitucional, también fue objeto de regulación expresa en el Estatuto, artículo 20, al disponer que “[l]os otros Poderes del Estado y, en general, todas las autoridades, instituciones y organismos nacionales o internacionales, deben respetar y hacer efectiva la independencia de la judicatura”. Y, precisamente, la intromisión inconsulta del órgano legislativo en la organización y funcionamiento del Poder Judicial, sea creando, modificando o suprimiendo órganos o competencias, judiciales o administrativos, es constitucionalmente inadmisible, por constituir esto una flagrante violación al principio de independencia judicial.

Por último, cabe indicar, que la independencia del Poder Judicial es un principio que tiene una naturaleza particular y específica, distinta al de los otros Poderes del Estado, ya que consiste en un escudo de protección contra la intromisión del poder político, de lo cual no están protegidos los otros Poderes del Estado. Esto, debido a que el Poder Judicial es el que administra justicia y esta debe ser imparcial y libre de cualquier presión externa. Y, en este punto, la presión económica, bien por el salario o estipendio, bien por el monto y condiciones de la jubilación o pensión de los jueces y demás auxiliares de la justicia, juega un papel trascendente en la consecución de una independencia real y efectiva del Poder Judicial.

Con base en las consideraciones precedentes, corresponde, entonces, examinar el contenido de la ley con el fin de determinar si este afecta o no la organización o el funcionamiento del Poder Judicial, en los términos expresados.

En este orden de ideas, al igual que cuando se conoció la consulta legislativa relacionada al proyecto de Ley de Reforma Integral a los Diversos Regímenes de Pensiones y Normativa Conexa, hoy aprobada por Ley N° 9544 de 24 de abril de 2018, denominada como “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley N° 7333, Ley Orgánica del Poder Judicial, de 5 de mayo de 1993, y sus reformas”, se mantienen las razones del voto salvado. Esa consulta legislativa fue evacuada por Sentencia N° 2018-005758 a las 15:40 horas del 12 de abril de 2018, en la que abordó las diferentes quejas sobre el artículo 239, de la ahora ley en cuestión. En esa oportunidad, se revisó el trámite legislativo en cuanto crea una Junta Administradora del Fondo de Pensiones y Jubilaciones del Poder Judicial, la cual define como un órgano del Poder Judicial, con independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que la ley le concede, órgano al que se le otorga independencia funcional y se le asigna una serie de competencias, entre otras, elevar el aporte obrero al Fondo de Pensiones y conocer de las solicitudes de jubilación, lo cual implica una modificación en la estructura del Poder Judicial. De igual modo, se restan competencias al Consejo Superior del Poder Judicial; y, además, en el artículo 240, del proyecto de ley, se confiere a la Corte Plena la obligación de dictar un reglamento para la elección de los miembros de esa Junta Administradora, fijándole así una competencia que actualmente no tiene. Los mencionados numerales de la Ley disponen:

“Artículo 239- Se crea la Junta Administrativa del Fondo del Jubilaciones y Pensiones del Poder Judicial como un órgano del Poder Judicial, que contará con completa independencia funcional, técnica y administrativa, para ejercer las facultades y atribuciones que le otorga la ley.

Le corresponde a la Junta:

• a)Administrar el Fondo de Pensiones y Jubilaciones de los Empleados del Poder Judicial.
• b)Estudiar, conocer y resolver las solicitudes de jubilación y pensión que se le presenten.
• c)Recaudar las cotizaciones que corresponden al Fondo y ejercer las acciones de cobro necesarias.
• d)Atender las solicitudes de reingreso a labores remunerativas de jubilados inválidos.
• e)Realizar los estudios actuariales con la periodicidad establecida en la normativa emitida al efecto por el Consejo Nacional de Supervisión del Sistema Financiero (Conassif) y la Superintendencia de Pensiones (Supén).
• f)Invertir los recursos del Fondo, de conformidad con la ley y con la normativa que al efecto dicte el Consejo Nacional de Supervisión del Sistema Financiero y la Superintendencia de Pensiones.
• g)Cumplir con la legislación y la normativa que dicten tanto el Consejo Nacional de Supervisión del Sistema Financiero como la Superintendencia de Pensiones.
• h)Dictar las normas para el nombramiento, la suspensión, la remoción y la sanción del personal; así como aprobar el plan anual operativo, el presupuesto de operación, sus modificaciones y su liquidación anual.
• i)Todas las demás atribuciones que le asignen la ley y sus reglamentos.

Con base en el resultado de los estudios actuariales, y con autorización de la Superintendencia de Pensiones, la Junta Administrativa podrá modificar los parámetros iniciales establecidos en esta ley respecto de los requisitos de elegibilidad, el perfil de beneficios, así como los aportes y las cotizaciones de los servidores judiciales y de las jubilaciones y las pensiones previstos en la ley, siempre que esto sea necesario para garantizar el equilibrio actuarial del Régimen.

La Junta contará con personalidad jurídica instrumental para ejercer las atribuciones que la ley le asigna, así como para ejercer la representación judicial y extrajudicial del Fondo.

Se financiará con una comisión por gastos administrativos que surgirá de deducir un cinco por mil de los sueldos que devenguen los servidores judiciales, así como de las jubilaciones y las pensiones a cargo del Fondo. Con estos recursos se pagarán las dietas de los miembros de la Junta Administrativa, los salarios de su personal y, en general, sus gastos administrativos. Los recursos ociosos serán invertidos de conformidad con lo previsto en el artículo 237 de esta ley.

Artículo 240- La Junta Administradora estará conformada por tres miembros que serán electos democráticamente por el colectivo judicial, así como por tres miembros designados por la Corte Plena, con perspectiva de género en ambos casos. Cada integrante titular tendrá un suplente para que lo sustituyan en sus ausencias, quien deberá cumplir con los mismos requisitos del titular.

Quienes integran la Junta durarán en sus cargos cinco años, luego de los cuales podrán ser reelectos, todo conforme con la reglamentación que al efecto habrá de dictarse por la Corte Plena, previa audiencia conferida a las organizaciones gremiales del Poder Judicial.

En la primera sesión ordinaria, la Junta designará a la persona que habrá de presidir las sesiones, esta designación se hará por un espacio temporal de un año, debiendo alternarse cada año entre los representantes del colectivo judicial y de la Corte Plena. Además, se designará a quien le sustituya en caso de ausencia. La persona que preside tendrá voto calificado en caso de empate.

Los miembros de la Junta Administradora no devengarán ninguna dieta pero sí contarán con los permisos necesarios para atender las sesiones. Para ser miembro de la Junta se deberá cumplir con los siguientes requisitos, los cuales deberán ser documentados y demostrados ante la Superintendencia de Pensiones (Supén):

• a)Contar con título universitario en carreras afines a la administración de un fondo de pensiones y estar incorporado al colegio profesional respectivo, cuando así corresponda.
• b)Ser de reconocida y probada honorabilidad.
• c)Contar con conocimientos y al menos cinco años de experiencia en actividades profesionales o gerenciales relevantes para la administración de un fondo de pensiones, de manera que todos los miembros de este órgano posean habilidades, competencias y conocimientos que les permitan realizar el análisis de los riesgos que afectan a la Junta y al Fondo.

No podrán ser miembros de la Junta:

• 1)Las personas contra quienes en los últimos diez años haya recaído sentencia judicial penal condenatoria por la comisión de un delito doloso.
• 2)Las personas que en los últimos diez años hayan sido inhabilitadas para ejercer un cargo de administración o dirección en la Administración Pública o en las entidades supervisadas por la Superintendencia General de Entidades Financieras (Sugef), la Superintendencia General de Seguros (Sugese), la Superintendencia de Valores (Sugeval) y la Superintendencia de Pensiones (Supén).

La integración del órgano deberá garantizar la representación paritaria de ambos sexos, asegurando que la diferencia entre el total de hombres y mujeres no sea superior a uno”.

De la lectura del artículo 239, transcrito, es claro que en él se crea un nuevo órgano dentro de la estructura del Poder Judicial, denominado “Junta Administrativa del Fondo de Jubilaciones y Pensiones del Poder Judicial”, al que se le confiere completa independencia funcional, técnica y administrativa, para ejercer las facultades, competencias y atribuciones que le otorga la ley, enumeradas en los incisos a), b), c), d), e), f), g), h) e i), del propio artículo, para el cumplimiento de sus cometidos, para lo cual contará con personalidad jurídica instrumental. De tal manera, que se crea, ex novo, un órgano administrativo y se adscribe dentro de la estructura del Poder Judicial, con competencias y atribuciones determinadas; y, concomitantemente, se sustraen y eliminan competencias y atribuciones previamente otorgadas -por ley formal- al Consejo Superior del Poder Judicial. Esta sola circunstancia, por las razones dichas, obliga al órgano legislativo a consultar -necesariamente- el proyecto al Poder Judicial, en los términos dispuestos en el artículo 167, de la Constitución Política, ya que ello modifica la organización administrativa del Poder Judicial, con la creación de un nuevo órgano administrativo, y la supresión de competencias del Consejo Superior en favor de ese órgano de nueva creación, lo que, claramente, afecta la independencia de ese Poder de la República.

Lo mismo cabe decir en relación con el artículo 240, de la ley, en el tanto en él se abordan temas propios de la organización administrativa del Poder Judicial, en torno a la conformación y designación de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, su duración en los cargos, la designación de la persona que ha de presidirla y los requisitos para poder ser miembro de esa Junta, entre otros. Es de destacar, que aun cuando la Corte Plena está facultada, por la Ley Orgánica del Poder Judicial, para dictar los reglamentos internos que sean necesarios para el buen funcionamiento del Poder Judicial, el hecho de que, por medio de la ley, se le imponga la obligación de reglamentar lo relativo a la duración en los cargos de los miembros de la Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial, sin que el texto sustitutivo del proyecto, que fue finalmente aprobado en Primer Debate, haya sido consultado a la Corte Suprema de Justicia, implica una grave intromisión en las competencias del órgano máxima jerarquía del Poder Judicial, con afectación de la organización de ese Poder de la República, en contravención de la consulta obligatoria preceptuada en el artículo 167, de la Constitución Política; y, por ende, una lesión a la independencia judicial. A simple vista, la citada normativa, le quita, al Presidente de la Corte Suprema de Justicia, y por consiguiente, al Presidente del Consejo Superior del Poder Judicial, la competencia que le da la Ley Orgánica del Poder Judicial, de administrar el Fondo de Pensiones y Jubilaciones del Poder Judicial, precisamente de acuerdo con las políticas de inversión establecidas por la Corte Plena, tal y como actualmente está contemplado en el artículo 81, inciso 12.

No obstante lo anterior, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, no fue consultado a la Corte Suprema de Justicia, a pesar de contener una serie de regulaciones que afectan la organización y funcionamiento del Poder Judicial. Sin embargo, tal y como se afirma en el voto de mayoría, a folio 2625 del expediente legislativo consta que, en atención a una moción aprobada el 27 de julio de 2017, por la Comisión Especial, por oficio número AL-20035-OFI-0043-2017 del 31 de julio de 2017, la Jefa del Área de Comisiones de la Asamblea Legislativa confirió audiencia al Poder Judicial con respecto al dictamen afirmativo de mayoría, con base en lo cual, la Corte Suprema de Justicia emitió su criterio mediante el oficio número SP-253-17 del 10 de agosto de 2017, según consta a folios 2759 a 2807 del expediente legislativo. Esto significa, entonces, que el Poder Judicial sí fue consultado y externó su criterio en relación con el texto sustitutivo aprobado por la Comisión Especial el 27 de julio de 2017, lo que se produjo incluso antes de que dicho texto fuera conocido por el Plenario.

A pesar de ello, dicho texto no fue el que se aprobó en Primer Debate por el Plenario Legislativo el 30 de octubre de 2017, publicado en el Alcance N° 268 a la Gaceta Digital N° 212 del 9 de noviembre de 2017, ya que el que se aprobó es un texto sustitutivo introducido por moción vía artículo 137, del Reglamento de la Asamblea Legislativa. Este último texto no fue consultado a la Corte Suprema de Justicia, tal y como correspondía, según lo analizado supra, al tenor de lo dispuesto en el artículo 167, de la Constitución Política.

Conforme lo argumentan los accionantes, se incurrió en una violación constitucional en el procedimiento legislativo. Al respecto, cabe destacar, que este Tribunal Constitucional tiene competencia para conocer y pronunciarse sobre los vicios en la formación de las leyes cuando se quebrante algún requisito o trámite sustancial previsto en la Constitución o en el Reglamento de la Asamblea Legislativa. Esto es conforme al artículo 73, inciso c), de la Ley de la Jurisdicción Constitucional, que indica:

“Artículo 73.- Cabrá la acción de inconstitucionalidad:

…

• c)Cuando en la formación de las leyes o acuerdos legislativos se viole algún requisito o trámite sustancial previsto en la Constitución o, en su caso, establecido en el Reglamento […] de la Asamblea Legislativa.

…”.

De manera que, conforme a la Ley de la Jurisdicción Constitucional si lo que se analiza es una ley formal aprobada por la Asamblea Legislativa, se trataría del control posterior de las leyes o acuerdos legislativos, mediante el examen del expediente legislativo, para determinar que en el procedimiento de formación de la ley no se incurrió en algún vicio esencial. Por ello, el vicio detectado en el procedimiento legislativo de la Ley N° 9544, denominada “Reforma del Régimen de Jubilaciones y Pensiones del Poder Judicial, contenido en la Ley No. 7333, Ley Orgánica del Poder Judicial de 5 de mayo de 1993, y sus Reformas”, debe declararse por la omisión de consultar a la Corte Suprema de Justicia el texto sustitutivo aprobado en Primer Debate, toda vez que esto viola lo dispuesto en el artículo 167, de la Constitución Política, al afectar la organización administrativa del Poder Judicial, por la creación de un nuevo órgano administrativo dentro de su estructura, otorgarle competencias sustanciales en materia de pensiones y jubilaciones; y, a la vez, suprimir competencias otorgadas previamente por ley al Consejo Superior del Poder Judicial (artículos 239 y 240 del proyecto).

Esta Sala, en abono de lo anterior, en la Sentencia N° 2001-13273, de las 11:44 horas del 21 de diciembre de 2001, al evacuar una consulta legislativa de constitucionalidad sobre un proyecto de ley de reforma al Código Penal, en cuanto modifica aspectos relativos a la organización o funcionamiento -meramente administrativa- del Archivo Judicial, sostuvo, por unanimidad, que:

“De la misma forma, modifican el ámbito de funciones del Archivo Judicial, aumentando la cantidad de datos que debe registrar. Todo lo anterior implica sin duda, la variación de diversas reglas concernientes al funcionamiento y organización del Poder Judicial. A pesar de lo anterior, la Asamblea Legislativa omitió efectuar la respectiva consulta a la Corte Suprema de Justicia (al menos la misma no consta en la copia certificada del expediente remitida por el Presidente del Directorio), sin que anteriormente dichos aspectos hayan estado incluidos en los textos consultados a la Corte Suprema de Justicia, por lo que estima la Sala que se incurrió en una violación al deber impuesto en el artículo 167 de la Constitución Política respecto de la independencia funcional reconocida por el constituyente al Poder Judicial, y en ese sentido debe entenderse que el trámite seguido con anterioridad a la aprobación del dictamen modificado es nulo desde el punto de vista constitucional y así debe ser declarado”.

Nótese por lo dicho, que el vicio apuntado no quedó subsanado, en segundo debate, aún si la Ley hubiera sido aprobado por mayoría calificada, pues esto solo sería así si se tratase de la aprobación de un texto de obligada consulta al Poder Judicial, por afectar su organización, estructura y funcionamiento -como en este caso-, y, una vez consultado a la Corte Suprema de Justicia, el órgano legislativo persistiera en aprobarlo apartándose del criterio técnico del órgano judicial. Nada de esto ocurrió en el procedimiento legislativo, toda vez que la Ley N° 9544 del 24 de abril de 2018, no obtuvo siquiera la votación calificada en el segundo debate, y peor aún, el texto aprobado fue sin consulta institucional. El meollo del problema que nos ocupa, realmente, es de la aprobación -en Primer Debate- de un texto inconsulto, en contravención de lo preceptuado en el artículo 167, de la Constitución Política, vicio de procedimiento que resulta insalvable e insubsanable. Esto por cuanto, si bien es cierto, el texto sustitutivo del proyecto de ley, que fue acogido por la Comisión Especial en la sesión del 27 de julio de 2017, fue consultado a la Corte Suprema de Justicia, este texto no fue el que, finalmente, se aprobó en Primer Debate, sino un nuevo texto sustitutivo que, de previo, no fue consultado, no obstante tener relación directa con la organización, estructura y funcionamiento del Poder Judicial, según ha quedado expuesto. Y aún más, si bien el anterior texto aprobado por la Comisión Especial en la sesión del 27 de julio de 2017 sí fue consultado a la Corte, al haber esta mostrado disconformidad con el texto, hacía obligada una votación calificada por el Pleno, al tenor del artículo 167, de la Carta Fundamental, lo que tampoco se hizo así.

Conviene recordar, que la consulta institucional tiene como fin la protección de la independencia judicial, que es mucho más complejo que reducirlo a la protección de un fuero jurisdiccional. La consulta institucional obligatoria debe ser oportuna, pues de otro modo, sería una obligación de papel que no surtiría las verdaderas salvaguardias que el texto constitucional procura establecer entre iguales Poderes de la República. El sostenimiento de una tesitura contraria, y de modo permanente, por parte de la mayoría del Tribunal no podrá ser sostenible en el tiempo, pues aún en estas circunstancias de inflexión e implosión en la independencia funcional y presupuestaria del Poder Judicial, lo es mayoritariamente, al de las garantías ciudadanas que el Constituyente quiso garantizar en el 167, y luego, mejoró con la reforma al numeral 177, de la Constitución Política.

La Corte Plena, en Sesión N° 27, del 7 de agosto de 2017, Artículo XXX, al evacuar la consulta a la Asamblea Legislativa sobre el Dictamen Afirmativo de Mayoría, aprobado por la citada Comisión Especial, dispuso:

“Se considera que tiene que ver con la estructura y funcionamiento del Poder Judicial, debido a que afecta directamente el proyecto de vida de todas las personas servidoras judiciales porque significa una disminución de la jubilación, aun y cuando han cumplido con todos los requisitos legales para gozar del derecho jubilatorio de manera plena. Esto incluye la cotización de las cuotas necesarias y correspondientes; el pago de renta; aportes tanto al Fondo de Jubilaciones y Pensiones del Poder Judicial como al sistema de la Caja Costarricense del Seguro Social y otra serie de cargas que de aprobarse el texto tal cual ha sido planteado por la Comisión dictaminadora, redundaría en acciones confiscatorias.

No puede dejarse de lado que la creación y naturaleza del Fondo de Jubilaciones y Pensiones del Poder Judicial responde a criterios de estabilidad, independencia, preparación e idoneidad, tal como lo establece el artículo 192 de la Constitución Política, con el objeto de promover la permanencia de un personal formado y capacitado en la institución y la disminución del goce jubilatorio representa un desestimulo para el ingreso de personas profesionales valiosas, que atendiendo al resultado económico de una futura valoración, preferirían hacer su carrera profesional en otro ámbito laboral.

Se afecta la carrera judicial, fiscal, de la Defensa Pública y del personal en general que teniendo más cargas en su salario -de cuatro veces más que en otros regímenes-, recibirían un beneficio menor.

Por otra parte, la renovación del personal que logra permanecer se afecta. El Poder Judicial contaría con personas funcionarias de edad avanzada, que se mantuvieron laborando únicamente por la disminución que sus ingresos sufrirían en caso de jubilarse.

La población judicial estaría ante una encrucijada, donde si bien es cierto, se tiene el deseo de optar por ese derecho y la motivación de retirarse a descansar, se ve colocada en una condición donde debe valorar su situación económica, probablemente, obligándola a buscar nuevas fuentes de ingresos para mantener sus gastos normales o adquiridos previos a la pensión, y los naturales por razones propias de la edad. Sin embargo, ese proceso también tiene sus restricciones, desde el punto de vista legal la Ley Orgánica del Poder Judicial prohíbe a las personas jubiladas optar por otro trabajo, y socialmente es una realidad que después de los cuarenta años se tienen limitaciones fácticas en cuanto a la reincorporación laboral.

Tiene gran relación con la estructura y funcionamiento, ya que se le resta competitividad al Poder Judicial en el mercado laboral, con perjuicio para la calidad de la Administración de Justicia. El salario de los puestos se ve disminuido por el aporte al régimen de pensiones y jubilaciones que es cuatro veces mayor que la contribución de otros regímenes. Esto dificulta la captación de recurso humano y se ve perjudicado el servicio público.

Además, la regulación del Fondo de Jubilaciones y Pensiones del Poder Judicial no debe valorarse únicamente desde la perspectiva económica, pues nos encontramos ante derechos fundamentales -irrenunciables- asociados a toda persona trabajadora, quien durante sus años laborales contribuyó en un porcentaje superior al general, a un régimen con la expectativa de contar con una pensión, que le permita satisfacer sus necesidades y gozar junto con su entorno, sus años de retiro de forma tranquila y con calidad de vida.

La imposición de esta nueva carga tributaria, afecta a grupos de población vulnerable -como las personas adultas mayores- perjudicándose a la parte más débil, la que precisamente requiere mayor protección por parte del Estado.

El impuesto propuesto se impone en un momento de la vida de la persona jubilada donde está más vulnerable, cercanas o ya son de la tercera edad. No se puede obviar que es en esta etapa, donde por lo general las personas requieren mayores atenciones médicas, cuidados especiales, entre otros, siendo que durante su vida laboral, unos en menor o mayor cantidad, de acuerdo con los ingresos percibidos, cotizaron para el régimen con la expectativa de contar con los recursos previstos para afrontar este proceso y de aprobarse este Proyecto de Ley, se vería truncado dicho plan de vida.

Causaría un impacto social importante, por cuanto las personas en su retiro pierden, de forma sorpresiva, una parte importante de sus ingresos, pero conservan un estatus de gastos preestablecidos, lo que se convierte en una repercusión, no solo económica, sino también en su salud, siendo contrario al objetivo previsto para un sistema de pensiones, el cual es contar con ingresos suficientes durante la vida posterior a la laboral, escenario dentro del cual es importante recordar que en muchas ocasiones, la persona jubilada, continúa teniendo bajo su cuidado y manutención a otras personas adultas mayores o menores de edad.

Tomando en cuenta las observaciones planteadas al Proyecto de Ley tramitado bajo el expediente 19922 (20035), las cuales encuentran apego y sustento en el estudio actuarial realizado por el IICE y con base en las potestades que los artículos 167 de la Constitución Política y 59 inciso 1) de la Ley Orgánica del Poder Judicial se estima que el texto consultado sí incide en la estructura, organización y el funcionamiento del Poder Judicial y en ese sentido deberá la Asamblea Legislativa, tomar en cuenta lo dicho por la Corte Plena en relación a cada aspecto del Proyecto en consulta, salvo que se cuente con la mayoría calificada para separarse de dicha opinión vinculante.

Así se ha hecho saber a ese Poder Legislativo en otros proyectos de ley consultados tales como los vistos en las sesiones de Corte Plenas números 57-14 del 08 de diciembre de 2014, artículo XVIII; 13-15 del 23 de marzo de 2015, artículo XXXVII; 2-16 del 18 de enero de 2016, artículo XVIII y 14-17 del 30 de mayo de 2017, artículo XIX, entre otros, en los que la Corte Plena ha estimado necesario señalar la incidencia de los proyectos de Ley en la estructura interna del Poder Judicial.

Corolario, respecto del proyecto de Ley tramitado bajo el expediente n° 19922, debe emitirse criterio negativo pues incide en la estructura, organización y funcionamiento del Poder Judicial”.

La parte final, del citado artículo constitucional (167), expresa literalmente que “para apartarse del criterio de ésta [La Corte], se requerirá el voto de las dos terceras partes del total de los miembros de la Asamblea Legislativa”; y, dicho texto final, -no consultado en todo caso- se aprobó por la Asamblea Legislativa el 30 de octubre de 2017, con treinta y un votos (folios 4000 y 4173 del expediente legislativo). Y, para el segundo debate, no obtuvo la mayoría calificada, al alcanzar treinta y cuatro votos (folios 4437, 4608 y 4637 del expediente legislativo).

B.- Las dinámicas jurídicas y sociales que informaron la reforma al artículo 177, Constitucional. Es necesario abordar el criterio de la mayoría, el cual, consideramos con respeto -pero con igual vehemencia-, las razones por las que se considera que utilizan una laxa interpretación de la obligación de la consulta institucional establecida en el artículo 167, Constitucional, además de lo dicho anteriormente. Es claro que, en general, la doctrina constitucional de base para la consulta institucional se basa en similares razones: garantizar que el legislador tenga de primera mano la mejor información para legislar, es decir, cuente con el criterio técnico especifico. Se trata del reconocimiento del Constituyente de las autonomías institucionales, así como en su mayor grado, de la defensa de la independencia que le corresponde a un Poder del Estado u órgano constitucional fundamental del Estado. En los trámites de leyes complejos, como serían aquellas que tuvieran criterio encontrado del Poder Judicial, es cuando más se requiere que una mayoría calificada de los legisladores para promover aquellos cambios significativos en la legislación mediante un verdadero consenso.

Si bien esta Sala, en algunas de sus sentencias, ha establecido que no procede la consulta institucional en proyectos de ley que tienen un carácter nacional o general, este solo criterio jurisprudencial no puede bastarse para descartar la necesidad de agravar el procedimiento legislativo en la Asamblea Legislativa, cuando se trata de la mayoría calificada establecida en el numeral 167, Constitucional. Esto tiene que ser dimensionado no solo referidos a temas que tienen relación con la autonomía institucional del Poder Judicial, sino especialmente, a los referidos a la incidencia directa o indirecta en la independencia judicial, que se garantiza en la Constitución, a través de la estructura orgánica fundamental del Estado. Esto, especialmente, si como en el caso que nos ocupa, ha habido diversos vicios en el procedimiento legislativo, referidos más adelante.

Es claro, que criterios para negar la consulta institucional por considerar que un proyecto de ley sea de carácter nacional o general no puede ser utilizado de forma indiscriminada, especialmente porque con dicha calificación entraría gran cantidad de proyectos de ley que tengan incidencia en el presupuesto nacional, en esta situación una gran mayoría tendrían incidencia nacional que se ocupa para establecer la defensa de objetivos públicos vistos desde criterios economicistas. Al contrario, esta minoría estima que no aplica el criterio jurisprudencial citado por la mayoría, cuando se trata de proyectos de ley que podrían incidir en la organización del Poder Judicial, como órgano fundamental del Estado. Es claro que el escrutinio judicial debe ser más demandante, por los alcances más permanentes sobre la función judicial (que es universal y con plena jurisdicción sobre todas las controversias jurídicas), lo que expresa las funciones fundamentales de control, tanto y más que de las instituciones semi-autónomas y autónomas, porque tiene relación con la especialidad funcional e independencia de un poder de la República. El peso absoluto de la institucionalidad fundamental del Estado debe trazar los criterios del examen y escrutinio que debe hacer este Tribunal Constitucional, de modo que no se puede examinar en los mismos términos que se hace para otras instituciones autónomas, pues evidentemente las consecuencias son muy diferentes para el Estado y la población en general. Basta con señalar la Sentencia N° 2017-009551 de las 11:40 horas del 12 de junio de 2017, que estableció que:

“…en general, la función judicial es universal y tiene plena jurisdicción sobre todas las controversias jurídicas que se suscitan en el país. Universalidad se refiere a la competencia sobre todas las disputas que se sometan a los Tribunales de Justicia, y aun las que no figuran en ella o en la ley por el principio de plenitud hermenéutica (artículo 153 de la Constitución Política). Universalidad supone jurisdicción sobre todos los individuos en controversia, incluso de conformidad con los principios generales del Derecho Internacional Público y del Derecho Internacional Privado. El Poder Judicial tiene competencia para decidir definitivamente sobre todas las controversias, encausando las cuestiones de conformidad con el procedimiento respectivo del iter procesal, finalizando, por lo general, con una sentencia -forma normal de terminar el proceso- con el estado de cosa juzgada, que es una expresión del poder y función de la plena jurisdicción, universal, y que implica la prohibición de abrir de nuevo a la discusión la misma controversia, para evitar la perpetuación de los conflictos y su amenaza sobre la convivencia pacífica en sociedad. Es la lápida que prohíbe abrir de nuevo la discusión sobre los mismos hechos”.

El Constituyente por supuesto asignó un campo concreto de acción al Poder Judicial para que funciones con independencia, que se nutre y participa de todo el pensamiento occidental, inspirado en los principios de la imparcialidad y la justicia, sencillamente no se puede comparar, o asimilar a la de los entes menores del Estado, por el contrario, es claro que el artículo 167, de la Constitución Política, se ubica en consideración a la importancia institucional y su autonomía funcional en el gran esquema del Estado.

Anteriormente en esta misma sentencia, se estableció también que:

“Esto lleva al principio de legalidad funcional, que conlleva el ejercicio de las competencias constitucional del Estado, el logro de los objetivos torales de cada poder sin extenderse a los de los otros Poderes independientes y de igual rango, y al ejercer cada uno las funciones de peso y contrapeso es que pueden controlar y limitar a los otros Poderes, según lo autoriza la Constitución Política. De conformidad con la distribución de las funciones fundamentales del Estado, cuando el Legislativo dicta las leyes, está sujeto a la supremacía de la Constitución Política y a los límites consagrados por la Constitución Política, que condiciona definitivamente su regularidad y permanencia en el tiempo, además de no poder aplicarlas directamente; en cuanto al Poder Ejecutivo, no podría dejar de aplicar e implementar las disposiciones que le dicta el Poder Legislativo, ni dejar de observar las disposiciones de la Carta fundamental; finalmente, el Poder Judicial no podría resolver a contra-pelo de las normas aplicables a un caso concreto, salvo por el conflicto con el principio de jerarquía normativa, el principio de la supremacía de las normas, de las leyes, tratados y de la Constitución Política, quedando sujeto a éstas. De conformidad con los artículos 10 y 152 y siguientes de la Constitución Política debe velar por la regularidad de toda la legislación, por lo que no podría aplicar normativa inválida o inconstitucional, pues aunado a la función fundamental de impartir justicia, debe velar para que toda acción u omisión no vulnere los principios esenciales de todo Estado social y democrático de Derecho, entre ellos: los principios de legalidad, jerarquía normativa, el respeto de los derechos y libertades fundamentales de la población. En consecuencia, el Poder Judicial interpreta y aplica finalmente la Constitución Política, teniendo el control de constitucionalidad de las normas y omisiones -el monopolio del rechazo- cuando la legislación es contraria a ésta, así cuando vulneran los derechos fundamentales, porque naturalmente es el último garante del principio de legalidad, el defensor último de los fines y objetivos del Estado y de la realización, por el Derecho caso por caso, del bienestar del ser humano”.

Ahora bien, la sentencia aborda las generalidades del Fondo y su desarrollo legal a partir de los inicios del Siglo pasado, en sintonía con la Sentencia N° 2018-5758 de las 15:40 horas del 12 de abril de 2018, para explicar el desarrollo legal de la seguridad social y del régimen previsional del Poder Judicial. Sin embargo, se debió hacer referencia a que las falencias del sistema sirvieron de acicate también a nivel constitucional, pues hubo otras que se gestaron para garantizar mayor estabilidad institucional y a favor de la independencia judicial. De este modo, debe hacerse referencia a la materialización de una de las conquistas más importantes para la institucionalidad del país, la que se obtuvo con la reforma al artículo 177, Constitucional, con la que se garantizó la independencia económica del Poder Judicial. Cabe entonces plantear, que si las dinámicas institucionales y sociales de ese entonces fueron importantes, aún lo fueron más las de la enmienda a la Constitución Política, las que no son nada despreciables, pues estuvieron dirigidas a fortalecer el Poder Judicial, y con el mismo peso, producir protección dentro del funcionariado. Las dinámicas económicas y jurídicas dicen tanto o más, pues pese a las conquistas legales y por la cantidad de problemas que existían en la época previa a la reforma constitucional, se gestó desde el seno de la Corte Plena, y fue acogido por la Asamblea Legislativa, el mejoramiento sustancial de aquella independencia económica del Poder Judicial en la propia Constitución Política. No cabe duda que las protecciones que el Constituyente derivado estableció en la reforma, se distribuyen igualmente sobre la estabilidad del funcionariado judicial. Así, fueron contempladas las limitaciones en las instalaciones e infraestructura, dotar de mejores herramientas de trabajo, mejoramiento de los salarios, más recursos para el Régimen de Jubilaciones y Pensiones del Poder Judicial, entre otros. Los reclamos de los accionantes debieron encontrar eco en esta vía de la acción de inconstitucionalidad, las que al inicio de este voto salvado se enumeran algunas. La independencia judicial se defiende con las herramientas que precisamente dotó el Constituyente, dentro de la cual las democracias más consolidadas del mundo se dedican a producir los instrumentos de protección a la independencia judicial y económica, siendo una de ellas la votación calificada en caso de que un proyecto de ley incida en la organización y funcionamiento del Poder Judicial.

En la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, esta Sala estableció que:

“VI.- CARÁCTER EXCEPCIONAL DE LA FUNCIÓN MATERIALMENTE ADMINISTRATIVA DEL PODER JUDICIAL. Si bien al Poder Judicial le corresponde, por antonomasia, el ejercicio exclusivo de la función jurisdiccional –tal y como se señaló en el considerando anterior-, lo cierto es que, también, ejerce de forma excepcional o extraordinaria funciones de índole administrativo. En ese sentido, resulta menester apuntar que la función administrativa no está constitucional ni legalmente asignada de forma exclusiva a un órgano o ente y, tampoco, posee un contenido típico que la caracterice, puesto que, como bien ha apuntado la doctrina es más fácil describir a la administración pública que definir la función administrativa por su carácter heterogéneo. Resulta claro que el ejercicio de la función materialmente jurisdiccional, requiere y precisa de toda una infraestructura administrativa que permita ejercerla de consuno con el precepto constitucional, esto es, de forma pronta y cumplida. Esto es lo que se ha denominado el “servicio público de administración de justicia”. Así, el soporte o aparato administrativo auxiliar que le permite a los jueces y tribunales dictar sus resoluciones, conforman dicho servicio, con lo cual el concepto está referido a los perfiles administrativos de la función jurisdiccional, tales como la organización y funcionamiento de los tribunales, la logística, -avituallamiento y suministros-, el manejo, gestión o administración eficiente y eficaz de los despachos judiciales para evitar las dilaciones indebidas o injustificadas en la tramitación de la causa, la función administrativa ejercida por los órganos administrativos del Poder Judicial (v. gr. resoluciones administrativas de la Corte Plena, del Consejo Superior del Poder Judicial, del Tribunal de la Inspección Judicial, del Consejo de la Judicatura y, en general, de los diversos departamentos administrativos -Dirección Ejecutiva, Proveeduría, Personal, etc.-) y auxiliares adscritos a éste como la policía represiva ejercida a través del Organismo de Investigación Judicial, el ejercicio de la acción pública por el Ministerio Público y la provisión de una defensa gratuita por medio de la Defensa Pública. No obstante, si bien esa función materialmente administrativa es desplegada por el aparato u organización de apoyo o de soporte a la jurisdiccional, debe entenderse en un sentido estrictamente excepcional, es decir, resulta admisible aquella que sea, únicamente, necesaria e idónea para coadyuvar en el ejercicio de la función, materialmente, jurisdiccional y no otra. En razón de lo anterior, por aplicación del principio constitucional de la reserva o exclusividad de jurisdicción se impone que el Poder Judicial debe utilizar y destinar la mayoría de sus recursos al ejercicio de una función, materialmente, jurisdiccional.

VII.- AUTONOMÍA E INDEPENDENCIA ECONÓMICA DEL PODER JUDICIAL. Una de las grandes conquistas históricas del Estado Constitucional de Derecho costarricense, lo fue la autonomía económica del Poder Judicial lograda por vía de la reforma parcial a la Constitución Política del 7 de noviembre de 1949, mediante la Ley No. 2122 del 22 de mayo de 1957. Esta ley le adicionó a la versión original del artículo 177 de la Constitución Política un párrafo segundo, en el cual se dispuso lo siguiente:

“(…)

En el proyecto se le asignará al Poder Judicial una suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico. Sin embargo, cuando esta suma resultare superior a la requerida para cubrir las necesidades fundamentales presupuestadas por ese Poder, el departamento mencionado incluirá la diferencia como exceso, con un plan de inversión nacional, para que la Asamblea Legislativa determine lo que corresponda (…)”.

Esta reforma parcial a la Constitución fortaleció, de modo congruente con el ordinal 9° que proclama la separación de funciones, la independencia de ese Poder de la República. La enmienda constitucional partió de la propuesta formulada el 6 de septiembre de 1956 por el Magistrado de entonces Evelio Ramírez a la Corte Plena, órgano colegiado que la aprobó en la sesión celebrada ese mismo día. En la justificación de la modificación constitucional -que posteriormente pasaría a ser la exposición de motivos de la reforma en el procedimiento legislativo-, el Magistrado Evelio Ramírez, insistió en la necesidad de asignarle al Poder Judicial un mínimo o “suma no menor del seis por ciento de los ingresos ordinarios calculados para el año económico”, para superar la situación lamentable de ese Poder de la República al haber recibido en los siete años precedentes a 1956 tan solo un porcentaje promedio del 2.75% en relación con el Presupuesto General de Ingresos. El propósito manifiesto del Magistrado gestor de la reforma constitucional y de la Corte Plena al acoger su propuesta, fue contar con mayores recursos financieros para diversificar y fortalecer los distintos ordenes (sic) jurisdiccionales, incrementar el número de juzgados y tribunales y del personal necesario para atender la demanda del servicio, reformar y mejorar los procesos, dotar de una adecuada infraestructura y recursos materiales a los juzgados y tribunales, mejorar los salarios de quienes se dedican a la delicada y difícil tarea de administrar justicia y su régimen de jubilaciones o pensiones, todo en aras de procurar una justicia más pronta y cumplida. En ese sentido, el Magistrado Evelio Ramírez efectuó consideraciones tales como las siguientes:

“(…) la Corte Suprema de Justicia, conociendo mejor que nadie las verdaderas necesidades del Poder Judicial, elaboraría su propio anteproyecto de Presupuesto tomando en cuenta los factores que, a su juicio, exijan variaciones económicas dentro de un criterio honesto, racional y justo. Y no sólo atendería a la debida instalación de sus múltiples oficinas –que hoy ofrecen un aspecto casi ruinoso en toda la Nación-, sino que también les suministraría las máquinas de escribir, muebles adecuados y los demás medios materiales, indispensables para laborar con la mayor eficiencia posible. Además se podría pagar en forma más equitativa a todos los servidores judiciales (…) El mismo fondo de Jubilaciones y Pensiones –cuya estabilidad está seriamente amenazada- podría ser reforzado de esa partida global (…) El porcentaje promedio que ha correspondido al Poder Judicial en los últimos siete años, ha sido de un 2.75 por ciento, en relación con el Presupuesto General de Ingresos (…) La experiencia ha venido a demostrar que el indicado porcentaje resulta del todo insuficiente para el adecuado funcionamiento del Poder Judicial. Para darse cuenta de ello, basta reparar en los edificios inadecuados que ocupan casi todos los tribunales de la República, en la lentitud con que se tramitan los diversos asuntos judiciales, debido al escaso número de tribunales y del personal que tienen los que funcionan en la actualidad, en el insuficiente número de máquinas de escribir y de otros muebles que son de imperiosa necesidad, en las bajas dotaciones de los servidores judiciales, etc. etc. (…)”.

Por su parte, la Comisión legislativa especial nombrada para dictaminar el proyecto de reforma al artículo 177 de la Constitución, en primera legislatura, en su informe del 9 de octubre de 1956 (visible a folios 20-21 del expediente legislativo), estimó lo siguiente:

“Esta reforma constitucional –con la cual se afianzará definitivamente la autonomía del Poder Judicial en el aspecto económico hará posible que en el futuro encuentren solución adecuada los múltiples problemas que en la actualidad confronta dicho Poder por la limitación de los recursos económicos asignados a él en los presupuestos nacionales. Esos problemas vienen de muy atrás y se agravan día con día como consecuencia del crecimiento y desarrollo de la población que demanda cada vez más servicios de administración de justicia. Las oficinas judiciales no cuentan con personal suficiente para atender los muchos problemas a diario surgidos y en lo material, se hallan con muy pocas excepciones, alojadas en locales totalmente inadecuados y sin mobiliario ni equipos suficientes (…) Las remuneraciones de los servidores judiciales son, por otra parte, exiguas de tal modo que la carrera judicial no ofrece estímulo ni aliciente alguno a quienes deseen iniciarse en ella y esto aleja en muchos casos a elementos de vocación y capacidades que podrían prestar, en otras condiciones, sus servicios como Alcaldes, Jueces o Magistrados”.

Consecuentemente, la idea rectora que inspiró la reforma constitucional de 1957 lo fue fortalecer la organización y funcionamiento del Poder Judicial, para que ejerciera de forma eficiente y eficaz su función esencial de impartir o administrar justicia. Bajo esta inteligencia, cualquier disposición del legislador ordinario tendiente a adscribir en la organización del Poder Judicial órganos que ejercen competencias materialmente administrativas ajenas o que no atañen a la función jurisdiccional, resulta inconstitucional, en cuanto vulnera la autonomía financiera y, por consiguiente, la independencia del Poder Judicial, al desviar el uso y empleo, aunque lo sea en un pequeño porcentaje, del mínimo presupuestario garantizado a éste para otros fines. Se puede afirmar, entonces, que el párrafo 2° del artículo 177 de la Constitución Política, adicionado por la Ley No. 2122 del 22 de mayo de 1957, es una clara garantía institucional, puesto que, al consolidar la autonomía e independencia financiera del Poder Judicial garantiza un ejercicio efectivo, por parte de cualquier persona, del derecho fundamental establecido en el artículo 41 de la Constitución Política de acceder la jurisdicción y de obtener una justicia pronta y cumplida”.

La afirmación de que no se estén sustrayendo competencias administrativas esenciales de organización y conexas con la función jurisdiccional es muy relativo, si como se explicó atrás, se está modificando un aspecto organizativo y de la administración del personal del Poder Judicial. Con ello, se ignora la historia de la enmienda constitucional, donde sí fue contemplado como justificación para pasar la reforma al artículo 177. La mayoría afirma que se trata del mismo contenido esencial de un instituto jurídico, pero al hacerlo la ley elimina la administración de las pensiones en el Consejo Superior del Poder Judicial, para otorgarla a una Junta Administradora del Fondo de Jubilaciones y Pensiones del Poder Judicial. Es cierto, que se mantiene dentro del Poder Judicial, pero ahora en un órgano desconcentrado, lo que, evidentemente, toca una parte esencial del gobierno del Poder Judicial (artículos 152 y 156, Constitucionales). Hay un cisma que produce afectación a la organización del Poder Judicial, si se quiere en forma lata, en la capacidad de organizarse, en el manejo y administración del fondo, para el ejercicio de los derechos de la seguridad social del personal del Poder Judicial, que vale decir, es contrario al criterio de la Corte Plena, por la forma omisa de realizar una consulta institucional, y por ignorar su opinión en contra del principio de la legalidad funcional de un Poder de la República. Recuérdese que la reforma al artículo 177, Constitucional, venía atribuida con la visión de reforzar la independencia judicial, incluida la de sus funcionarios, dentro de la cual estaría incluida la administración de fondo de pensiones. De hecho, el reconocimiento de algo tan importante, que tímidamente fue incardinado posteriormente en la Constitución Política de 1949, no llegó tan lejos para incluir -explícitamente- la irreductibilidad de los salarios de los funcionarios judiciales, como en otras latitudes, sin embargo si funcionó en nuestro país porque le permite gozar de los índices de independencia judicial que Costa Rica ha disfrutado comparativamente a nivel global, que es fruto claramente de la independencia económica del Poder Judicial. Esto ha sido en parte gracias al reconocimiento del régimen de empleo público que se fue consolidando a lo largo de la vida republicana de este país.

La Sentencia N° 1996-03575 de las 11:18 horas del 12 de julio de 1996, indicó sobre:

“… el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones”.

Por Sentencia N° 1998-005795 de las 16:12 horas del 11 de agosto de 1998, que estableció que:

“De lo dispuesto en el artículo 154 de la Constitución Política, -que dice-:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independecia (sic) de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constiuye (sic) una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

Por Sentencia N° 1998-005798 de las 16:21 horas del 11 de agosto de 1998, esta Sala estableció que:

“La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículoss 9 y 154 (sic). También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

"1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ..." La independencia del Organo (sic) Judicial se plantea hacia lo externo. El Organo (sic) Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada, a esta independencia es a la que me referiré de seguido. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Organo (sic) Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones”.

Esto no es poca cosa, toda vez que la organización y administración de la función judicial no solo no debe limitarse a la parte jurisdiccional como lo entiende la mayoría, sino que esta está complementada por otras funciones de organización, que le deberían ser respetadas como Poder de la República. Como se dijo línea atrás, la enmienda a la Constitución Política contempló no solo los aspectos jurisdiccionales, también operativos del Poder Judicial, por lo que estaría contemplado por el Constituyente originario en el artículo 167, porque desde el seno de la Corte Plena en 1956, y en la Asamblea Legislativa de 1957, adoptó desde esa época fundacional de la Segunda República, responder a las necesidades de los funcionarios en sus salarios y régimen previsional, un precepto toral para la democracia costarricense.

Es evidente, que el Fondo de Pensiones y Jubilaciones del Poder Judicial formaba parte esencial de la independencia económica del Poder Judicial de aquella época, y debe seguir siendo en la nuestra, según la doctrina del desarrollo progresivo, evolutivo y no regresivo de los derechos sociales. El Constituyente derivado, al acoger la visión de la Corte Plena, tomó un paso decisivo para receptar la gestión de forma independiente y autónoma del resto de los poderes políticos, lo que a su vez, permitió que dicha gestión y gobierno se hiciera dentro de los fines legales y constitucionales de la administración de justicia. Tampoco se puede afirmar, como lo dice la mayoría, que el reconocimiento del porcentaje constitucional del 6% haya sido llano y sin problema alguno; por el contrario, lo propio de ello es que la relación entre poderes ha sido pedregoso, áspero, abrupto, de modo que todo presupuesto se ha obtenido con gran esfuerzo o negociación oportuna de los representantes y autoridades del Poder Judicial. De hecho que el Constituyente previó tal posibilidad de negociación y consideración al establecer una segunda posibilidad de las rentas adicionales para los planes de inversión, entre otras cosas. El artículo 177, de la Constitución Política, con el 6% de los ingresos ordinarios del ejercicio económico de la República es un aspecto que ha servido de estímulo para el legislador para utilizar la órbita del Poder Judicial como un factor agregador de instituciones administrativas ajenas a la función judicial. Precisamente, la Sentencia N° 2006-07965 de las 16:58 horas del 31 de mayo de 2006, antes citada, termina con la declaratoria de inconstitucionalidad de normas del Código Notarial, por establecer un órgano de naturaleza administrativa como la Dirección de Notariado dentro del Poder Judicial con violación a los principios constitucionales de separación de funciones, reserva o exclusividad de jurisdicción, independencia y autonomía financiera del Poder Judicial, y el derecho a una justicia pronta y cumplida de los habitantes de la República.

En continuidad con la Sentencia N° 2017-09551 de las 11:40 horas del 21 de junio del 2017, se indicó también que:

“Por todo ello debemos reconocer que con el objeto de organizar racionalmente el trabajo, con eficacia, eficiencia, simplicidad y celeridad, toda función primaria debe estar acompañada de las otras funciones -no primarias del órgano constitucional-, y estar alineadas hacia la función primaria; es así como debe reconocerse que, tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc. Evidentemente, en el contexto costarricense sería un serio contrasentido transitar en contra de una larga tradición legislativa de confiar las atribuciones a un único Poder (que en otras latitudes no existe), pero pensando en garantizar esos controles horizontales en un Poder Judicial independiente”.

Entonces, si lo relacionado a las pensiones y jubilaciones del Poder Judicial fueron incluidos como parte de esa independencia económica del Poder Judicial como tema de fondo desde 1956, es para los suscritos una razón adicional para procurar la aplicación del artículo 167, de la Constitución Política, pues el cambio de esquema para una desconcentración del órgano administrador se vino a modificar por una ley posterior. Esto abre el mal antecedente de que, en el futuro, mayorías transitorias en la Asamblea Legislativa incursionen en otros aspectos del manejo del personal del Poder Judicial.

Otra razón es que una mayoría reforzada garantiza no solo la independencia judicial desde el punto de vista institucional, sino para la persona del juez y jueza individualmente considerado, en el que se afectan los derechos económicos, sociales y culturales, establecidos a través de un régimen de la seguridad social y previsional. No se puede negar que el Poder Judicial forma parte de un todo, el “Estado”, también se debe hacer sentir su posición estratégica y clave dentro de su organización, con las funciones públicas de sus funcionarios que son altamente especializadas y apegadas al Derecho, según se describía antes en los antecedentes de este Tribunal, y cuya función es última en la solución de los conflictos y como pacificador de ellos. Esto claramente tiene un costo y sacrificio para su personal, que debe ser compensado por el “Estado”, pero más en una democracia funcional como la costarricense, que debe asumir no sólo la parte económica de su sostenimiento, sino de su protección.

La independencia judicial tiene como fin garantizar la imparcialidad judicial, lo que se comparte con la mayoría del Tribunal, aunque no con la claridad que desearía esta minoría, toda vez que el problema de la reforma al artículo 177, de la Constitución Política, cristalizó la necesidad muy sentida de proteger en términos generales la institucionalidad y la administración -también- de todo lo relativo al personal del Poder Judicial, lo cual debería ser resguardado celosamente, y de las cuales no puede dispensarse la oposición jurídica de la cabeza del Poder Judicial, de frente a los efectos regresivos de la legislación que se puedan producir en un futuro. Se debe traer a colación, la regla constante de la importancia de proteger la parte de la remuneración y lo relativo al régimen de pensiones de los jueces y juezas, de sus funcionarios, en ordenamientos jurídicos más importantes del mundo.

De este modo, los suscritos magistrados consideramos que la Ley N° 9544 del 24 de abril de 2018, contiene vicios esenciales en el procedimiento legislativo que lo afectan en su totalidad, consistente en la falta de consulta al Poder Judicial del texto aprobado por el Parlamento por mayoría absoluta y no calificada, que lo afecta en su totalidad (artículo 167, de la Constitución Política), por afectar su organización, estructura, funcionamiento e independencia; y, con ello, es contrario al Derecho de la Constitución. En razón de lo anterior, resulta inconducente -para los suscritos juzgadores- entrar a analizar el resto de los alegatos de fondo formulados por los accionantes contra el contenido sustancial de la ley, salvo en aquellos supuestos en los que se requirió tomar posición para que existiera voto de toda conformidad (artículo 60.2, del Código Procesal Civil), lo cual está reflejado en la sentencia de la mayoría de esta Sala”.

De este modo, los suscritos magistrados Salazar Alvarado, Garita Navarro y la magistrada Jara Velásquez, dejamos consignado nuestro voto salvado.- Luis Fdo. Salazar A. José Roberto Garita N.

Rosibel Jara V.