Parque Viva Closure Violated Freedom of the PressCierre de Parque Viva lesionó la libertad de prensa

Case File:

Decision No. 2022025167 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at thirteen hours and thirty minutes on veintiuno de octubre de dos mil veintidós.

BACKGROUND:

Amparo proceeding (recurso de amparo) filed by Nombre01, identity card CED01, Nombre02, identity card CED02, Nombre03, identity card CED03, Nombre04 , identity card CED04, Nombre05, identity card CED05, Nombre06, identity card CED06, Nombre07, identity card CED07, Nombre08, identity card CED08, Nombre09, identity card CED09, Nombre10, identity card CED10, Nombre11, identity card CED11, Nombre12 , identity card CED12, Nombre13 , identity card CED13, and Nombre14 , identity card CED14, all journalists, against PRESIDENCIA Nombre01 and MINISTERIO DE SALUD.

BACKGROUND:

1. 1In a written submission filed with the Chamber, the petitioners bring an amparo action (recurso de amparo) and state that on January 29, 2022, the then-presidential candidate, Nombre15, made the following promise before a group of supporters gathered in Tibás: “(…) We are a tsunami, and yes, we are going to cause destruction. We are going to destroy the corrupt structures of La Nación and Canal 7. Listen to me, Nombre16; listen to me, you other one (...) Nombre17; listen to me, Nombre18. Here we are. Keep making us invisible when it comes to what is new and good, and slanderously accusing us when it comes to what is bad, because you no longer choose presidents in Costa Rica (…)”. They note that less than two months after being sworn in, on July 6, 2022, Nombre138 Nombre139 began to carry out the threat. They state that, after weeks of violent verbal attacks against the press and journalists, whom he called “scoundrels,” he used the press conference following the Governing Council meeting to cast doubt on Grupo Nación’s financial health.They assert that he called into question the company’s ability to repay the bonds purchased by the Caja Costarricense de Seguro Social (CCSS) and even insinuated that the collateral securing the debt would be weakened by the future transfer of some of the company’s land to a trust (fideicomiso) for a promising real-estate development. They add that on July 5, 2022, the Minister of Health received an “anonymous complaint” concerning Parque Viva, whereupon that official urgently requested an opinion from the Ministerio de Obras Públicas y Transportes regarding the road providing access to the park, which is a public road. They recount that the Minister of Health received a response the following day and that an extraordinary session of the Comité Asesor Técnico en Concentraciones Masivas was immediately held solely to consider the case and revoke the operating permit (permiso de funcionamiento).They contend that the report concerned the public roads outside the park, not the facilities or their access points. They assert that the report by the Ministerio de Salud inspectors, dated July 5, 2022, found no noncompliance whatsoever at the Parque Viva facilities and omitted any opinion on the surrounding public roads because they fell outside the inspectors’ jurisdiction. They argue that on July 8, 2022, the Ministerio de Salud dealt another blow to the “structure” by issuing health order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 concerning the temporary suspension of Parque Viva’s health operating permit (permiso sanitario de funcionamiento). They challenge the fact that the measure was ordered without prior notice and without an opportunity to exercise the right of defense; moreover, it was enforced while technical opinions were still being gathered from the Cuerpo de Nombre140 and the Cruz Roja regarding whether their first-response units could use the access road to the establishment.They state that the health order enforced on Friday, July 8, 2022, required the company to submit a remediation plan (plan remedial) addressing “the solution to the access problem.” They claim, however, that according to the official record (acta), the Ministerio de Salud inspectors found no problem whatsoever with the access points. They assert that, at the time of the closure, Parque Viva held all current permits and had renewed approval from the Ministerio de Salud, issued on December 16, 2021, regarding its occupancy limits (aforos). The occupancy limit was even increased on January 20 last, through an official communication (oficio) from the Ministerio de Salud. They state that, in comments published by La Nación on July 13, 2022, the Alcalde de Alajuela affirmed that the permits granted in 2014 coincided with the beginning of rapid residential development in the area and that Parque Viva could not be blamed for the traffic congestion.They mention that at a community assembly held on July 13, 2022, the council member and La Guácima resident Nombre19 stated that traffic jams in the area occur “(…) with Parque Viva and without Parque Viva (…)” and said that he was “(…) very pleased that the Parque Viva matter happened, because today the entire national press is talking about a problem that La Guácima faces every day (…)”. They explain that on July 15, 2022, following criticism voiced publicly and in a motion for reconsideration (recurso de revocatoria) filed by the company, the Ministerio de Salud issued a new administrative act (acto administrativo), with the same consequences as the first and with the clear intention of correcting its most obvious deficiencies, particularly those concerning the technical opinions. They explain that document No. MS-DRRSCN-DARSA2-1724-2022 upheld health order No. MS-DRRSCN-DARSA2-05-0368-2022 and sought to create the appearance that legitimate public purposes were being pursued.They maintain that the foregoing has entailed a clear intention to restrict freedom of expression through indirect means. They argue that the threat to destroy the companies in retaliation for the editorial positions of the media outlets they own and the actions of their news directors—who were mentioned by Nombre141 and surname in the speech delivered on January 29, 2022, by the current Nombre138 Nombre01—is more than evident. They state that the promise, as shown in the video submitted as evidence, was to destroy the “structures” recklessly characterized as corrupt in order to punish the alleged suppression of good news and dissemination of bad news. The threat was directed at the media outlets’ news directors, whose role is limited to editorial matters. They add that on that occasion a Canal 7 shareholder, Nombre17, was mentioned and berated by the president over an editorial position whose independence the owners of professional media outlets have pledged to respect.They explain that the then-candidate’s displeasure arose from the publication of information plainly in the public interest concerning the sanctions imposed on him by the Banco Mundial for sexual harassment, as well as criticism of other proposals and statements, such as his proposal to govern by referendum. They assert that Nombre138’s anger subsequently increased because of information published about the parallel financing structures for his party’s political campaign and other matters, such as references to electoral fraud that Costa Rican democracy would not tolerate. They state that these were serious, well-documented, and pertinent journalistic publications, such that failure to disseminate them would have directly affected citizens’ right to be informed about matters of public interest, as well as the informed-voter principle. They claim that, as a consequence of fulfilling that duty and exercising that right, news directors and staff were warned that the structures enabling them to practice independent journalism would be destroyed.They maintain that Parque Viva was one of Grupo Nación’s independent-journalism structures affected as a consequence of the threat made by the current president. In this regard, they explain in detail that Parque Viva was created to diversify the company’s sources of income and offset the loss of revenue experienced by media outlets worldwide because advertising had migrated to the internet giants. This fact is public and has appeared in various statements by the company and its representatives since at least 2013. They mention that Parque Viva was created as a supplementary source of income less dependent on advertising sales. Consequently, substantial resources and efforts were invested in creating the aforementioned Parque. They state that Nombre138 knows this perfectly well and, as an economist, also understands the harm that can be caused to a company by casting doubt on its ability to pay investors.They claim that this is precisely what Nombre138 did at the press conference held two days before Parque Viva was closed, with the evident purpose of fulfilling his promise to destroy the structures that allow the petitioners to practice journalism freely. In this instance, the blow was directed at Grupo Nación’s financial structure, and he admitted that he personally had asked the Nombre138 Ejecutivo of the CCSS to submit questions to Grupo Nación through the Superintendencia General de Valores (SUGEVAL), instead of directly approaching the issuer of the bonds acquired by that institution on the securities market; this was done without Grupo Nación’s knowledge, contrary to the provisions of the law. They add that, without waiting for answers to the questions, he then devoted a press conference to announcing that he had submitted them in defense of “grandma’s” pension. They state that when the Nombre138 ejecutivo of the CCSS acknowledged that the payments were current, the president called him “diplomatic” and resumed speaking to persist in the misinformation and insinuations.They state that the new development announced at the press conference was that the questions—which the CCSS could have submitted to the company without intermediaries—had been presented to Nombre02. They declare that it became clear that the president’s actions had no purpose other than to harm Grupo Nación by casting doubt on its finances in order to curtail freedom of expression, because “the customary practice of institutional investors” is to consult the issuer directly and rely on information published pursuant to law. In this regard, they state that it must be taken into account that Nombre02 replied to the CCSS that it should direct its inquiries to La Nación S.A.; it also noted that information concerning the legal, financial, and business status of an authorized issuer, as well as the securities it offers, may be accessed through the Registro Nacional de Valores e Intermediarios.They disclose that never before had a Nombre138 personally concerned himself with the fate of investments made by a public institution that no financial authority had questioned. Nor had any president ever devoted a significant portion of a presidential press conference to announcing that questions had been submitted to the issuer through SUGEVAL rather than directly. They describe how Parque Viva’s closure, two days after the press conference, was ordered to see “whether La Nación’s cash flow could be strangled.” They explain that, in Nombre136 v. Venezuela, the Inter-American Court of Human Rights addressed similar statements made from a position of power to restrict, directly or indirectly, the expression and dissemination of thought, in the following terms: “(…)139. In a democratic society, it is not only legitimate but sometimes a duty of state authorities to speak on matters of public interest.When doing so, however, they are subject to certain limitations, inasmuch as they must reasonably, though not necessarily exhaustively, verify the facts on which they base their opinions, and they should do so with even greater diligence than private individuals, because of their high office, the broad reach and potential effects that their statements may have on certain sectors of the population, and the need to prevent citizens and other interested persons from receiving a manipulated account of particular facts. Furthermore, they must bear in mind that, as public officials, they are guarantors of individuals’ fundamental rights and, therefore, their statements may neither disregard those rights nor constitute forms of direct or indirect interference or harmful pressure upon the rights of those seeking to contribute to public deliberation through the expression and dissemination of their thought.

This duty of special care is particularly heightened in situations of increased social conflict, disturbances of public order, or social or political polarization, precisely because of the range of risks they may pose to certain persons or groups at a given time. (…)”. They allege that, in their case, as is publicly and widely known, in addition to the constant use of the word “canalla,” which constitutes an insult intended to discredit and intimidate the press and incite the government’s supporters to repudiate it, the irresponsible references to Grupo Nación’s financial health involve statements that have proven contrary to the position expressed by the Corte Interamericana de Derechos Humanos, as noted above. They assert that, according to the Court, the President must make these references “(…) with even greater diligence than that exercised by private individuals, by reason of his high office, the broad reach and potential effects that his statements may have on certain sectors of the population, and in order to prevent citizens and other interested persons from receiving a manipulated version of certain facts (…)”.

They maintain that the proof of arbitrariness lies in the statements themselves: they unexpectedly announce a series of questions and, without waiting for an answer, broadcast unfounded, false, and reckless assertions, speculation, and insinuations. Furthermore, they claim that in this case there is a clear misuse of power (desviación de poder) and that the suspension of the health permit (permiso sanitario) granted to Parque Viva is arbitrary. They explain that the measures adopted do not seek to serve public interests, but rather improper interests consisting of intimidating a media outlet so that it cannot freely exercise its right to report. They point out that these acts not only financially affect the company that owns Parque Viva, but also the news outlet where they work and, consequently, infringe their right to report. They assert that this is the true purpose of the measures adopted.

They state that the actions are arbitrary, hasty, discriminatory, and absurd, and are far removed from safeguarding public purposes. They note that Parque Viva was closed on the basis of an “anonymous complaint” against facilities that opened more than four decades ago to house the La Guácima racetrack. They clarify that Parque Viva has operated at the site for more than seven years without any incident, under permits and licenses duly issued by the competent authorities on the basis of the studies required at the time. Indeed, they confirm that the most recent inspection concluded that the facilities are suitable for the activities held there; nevertheless, the Ministra de Salud requested an “urgent” opinion regarding the capacity of the public road leading to the park and, as a “preventive” measure, revoked the site’s operating permit (permiso de funcionamiento) in record time. They mention that the haste of the actions, involving the Minister’s direct and insistent intervention in response to an anonymous complaint, requests for urgent opinions, immediate inspections, and emergency meetings, is striking because it is unusual.

As regards the public roads, they state that the surrounding streets are the same ones covered by the initial studies required years ago to process Parque Viva’s permits, demonstrating that the establishment was already at the site when the area’s real-estate boom began. They emphasize that, since 2014, the construction of 44 condominiums and other buildings has been approved. They state that the State created the problem by allowing the area’s rapid urban expansion without providing the necessary public infrastructure. They recount that a few days ago, Contraloría General Nombre01 published an “operational audit on the effectiveness and efficiency of the use of cantonal road-network resources in the Municipalidad de Alajuela,” whose report concluded, among many other things, as follows: “(…) With regard to the expenditure of resources allocated to the maintenance of the RVC, it was found that during the 2019-2021 period the Municipality spent an average of 36,48% of the resources allocated each year; in other words, a total of ¢4.870,61 million, ¢4.874,56 million, and ¢7.947,83 million, respectively, remained unused each year.

The foregoing demonstrates inefficiency in the use of resources despite existing needs concerning improvements to roadway surfaces and the maintenance of bridges and sidewalks. (…)”. The report likewise stated: “(…) In addition to the foregoing, the Municipality’s average expenditure rate for the 2019-2021 period (36,48%) was far below the average expenditure rate of the eight municipalities consulted by the Contraloría General, which was 85,47% (…)”. Against this backdrop, they ask: How much greater has the budget under-execution (sub ejecución) been since 2014, when Parque Viva was established and the Mayor identifies the beginning of accelerated development? They comment that, when the La Guácima racetrack operated at the site, numerous mass events were held and there was only one exit, without any problems arising. They add that Parque Viva currently has four exits. They assert that, in September 2014, when the Mayor places the beginning of the area’s residential development, the Ministerio de Obras Públicas y Transportes (MOPT) approved Parque Viva’s road-planning study.

The park obtained every other permit, without exception, and on that basis the company invested more than $40 million, relying on the principle of legitimate expectations (principio de confianza legítima) and the legal certainty (seguridad jurídica) guaranteed by the constitutional order. They argue that, despite the foregoing, the State suddenly proceeded to revoke the operating permit, nullify the legitimate returns on the investment after a two-year pandemic-related closure, and require a private party to submit a remediation plan (plan remedial) for defects in the public road, under penalty of closure or serious harm to its revenue. They assert that it is obvious that the respondent authorities seek to destroy “(…) without reason or legal basis, the ‘structures’ that prevent dozens of journalists from exercising a function essential to society and an inviolable human right (…)”. They mention that, on 16 de diciembre de 2021, the same Ministerio de Salud official who recently suspended Parque Viva’s health operating permit (permiso sanitario de funcionamiento) was the person who approved the occupancy limits for the establishment’s various sections.

Between then and now, the only change at the Ministry has been its political leadership, which now urgently processes anonymous complaints, suspends permits without proceedings or the right to a defense, and requires private parties—not all of them, but only one—to submit remediation plans for traffic jams on public roads. They explain that traffic jams in the area attributable to Parque Viva occur only on rare occasions, since most activities do not attract as much traffic and take place at night or on weekends. They emphasize that in 2022 there have been only nine concerts, and only two of them attracted more than 7000 people. Furthermore, they state that Parque Viva has an advanced project, to be funded by Grupo Nación, that would help remedy the problem for its own benefit and that of the entire community. They explain that the idea is to build a four-lane access road, for which the land has already been acquired and most permits have been processed; however, that proposal is stalled before an MOPT permits commission, while the government claims that a remediation plan is needed from the very party that has proposed a solution that would not cost the government a cent.

Nevertheless, they explain that, at the press conference of 13 de julio de 2022, Nombre138 Nombre01 advanced an argument replete with falsehoods to announce opposition to the project, stating: “(…) Did you hear the blatant lie published by La Nación, claiming that for two years it has been requesting access from Dirección01 to fix Parque Viva? Oh no, well, if we score one goal, let’s score four more, because the area for which they wanted to obtain the permit is four times as large. Aren’t they ashamed to bring Dirección01 to a standstill, endangering all of Occidente, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas? (…)”. They consider absurd the warnings that all of Occidente, Guanacaste, and Puntarenas would be brought to a standstill by the construction of an access road that would dramatically and immediately improve traffic throughout La Guácima toward Parque Viva and, yes, toward a future urban development that Grupo Nación has announced for years.

They clarify that improving traffic flow is precisely what is needed to make that project viable. They explain that the proposed development would be carried out over fifteen or twenty years, but the beneficial impact of the access road would be felt immediately throughout the community and would undoubtedly facilitate access to Parque Viva. In predicting that half the country would be brought to a standstill by the construction of a potential urban-development project, the President appears to have forgotten his own government’s promise to expand Ruta 27. Moreover, Dirección General de Ingeniería de Tránsito, Consejo Nacional de Vialidad, Consejo Nacional de Concesiones, and Comisión de Carreteras de Acceso Restringido stated that they had no objection. Nevertheless, in an outburst before the microphones, the President overrode those opinions and erased the years of processing and planning invested in the project.

They state that the abrupt refusal even to consider allowing the access road, together with the reasons asserted by the President, demonstrates his persecutory intent and his intention to carry out the threat to destroy the “structures” of their journalism. They assert that only one remediation plan would satisfy him: an occupancy limit low enough to make Parque Viva unviable and thereby strike at the “structures” of the journalism that bothers him so much and that he promised to destroy. They explain that Grupo Nación is not required to provide that remedy, nor can it be compelled to submit a remediation plan as ordered by the government. The park was built with all the necessary permits before the real-estate boom in the area, which the State allowed without providing the necessary infrastructure and while, in fact, failing to spend the resources allocated for that purpose. They state that the State knew of the substantial investment required to build the project and gave its consent on several occasions.

The Ministry ordered an inspection of the park with the intention of finding a problem, but everything was found to be in compliance. They then decided that the defect lay in the public road, where it is the State, not private parties, that is responsible for providing the remedy. They argue that the purpose of the “remediation plan” demanded by the government is to “remedy” critical journalism through a misuse of power intended to exert pressure on the company, consistent with the campaign threat, rather than to address the problem of traffic jams. For that reason, at his press conference of 13 de julio, Nombre138 already expressed his refusal to allow construction of the access road that Grupo Nación is willing, in good faith, to finance. Everything is ready to build the four-lane roadway, but the administration has already made clear its intention not to allow it. They recount that the technical studies subsequently prepared by government-dependent institutions say nothing about the problem’s true origin.

Nor do they state the times or days when traffic jams occur or how they form. They assert that the measure initially adopted was so arbitrary, and its technical grounds so weak, that the government was forced to issue another measure based on new opinions that are equally questionable, in order to conceal its intentions and attempt to correct the obvious defects in the initial act.

They describe that a letter issued by the Cruz Roja Costarricense stated that emergency-response times have been affected by traffic congestion at various points throughout the national territory, a situation that also occurs in La Guácima. They further contend that the distinguished institution admitted that it does not provide services at events held at Parque Viva because the organizers hire private companies. They add that the Cuerpo de Nombre140 also emphasized the problem posed by the narrowness of the streets, without referring to any problem attributable specifically to Parque Viva, while the 9-1-1 report merely listed reports of a wide variety of incidents in the area, without establishing any causal connection with Parque Viva. They allege that the MOPT report made a strange comparison with some location in the United Kingdom, involving “three similar events” that it did not describe; nevertheless, it requested that capacity (aforo) be limited to 2400 people, not because of conditions at the park but because of assumptions concerning the public roadway.

They recount that, in order to justify its actions, the government sought to obtain community complaints after the fact by distributing a form letter to the development association, according to the testimony of Nombre20, a community leader from La Guácima, who said, “they want us to clean up the mess they made.” They state that, at a community meeting held on 13 de julio de 2022, Nombre19, a council member and resident of La Guácima, delivered an illuminating speech to his neighbors, stating: “(…) There is an unavoidable reality: from 2010 to the present, 48 housing developments have been established in La Guácima through the Concejo Municipal de Alajuela, not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (...) each of those projects entails (...) many cars. That gives us a traffic reality for which the roads we had were not designed (...) There are traffic jams here every day, at seven in the Nombre142 and at five in the afternoon, with or without a concert.

If an accident happens here today, La Guácima collapses because there is nowhere else to go. (…)”. They question why Parque Viva was selectively targeted when congestion occurs every day during several time periods, while the most heavily attended activities at this venue are generally held at night and on weekends. They assert that the government responded to an anonymous complaint about the park with the urgency of a national catastrophe. It also held emergency meetings, requested immediate “technical opinions,” ordered inspections, and issued decisions. All of this was supposedly intended to prevent traffic jams occurring two or three times per month, at night and on weekends. They question whether these same requirements will be imposed on businesses and condominiums established in the area after Parque Viva and whether the government will close them as well. They state that the intent to single out and discriminate against Grupo Nación in retaliation for its journalism could not be more obvious and further entails a misuse of power (desviación de poder) against the right of Grupo Nación journalists to freedom of expression.

They maintain that the problem is not Parque Viva, but rather public infrastructure that has made little progress in adapting to the residential density developed after Parque Viva came into existence. They note that it would not be difficult to produce similar “technical studies” regarding the daily traffic jams near the Forum office complex, attribute them to the buildings, and cancel their operating permits. The same could be said of the large number of shopping centers and offices that draw traffic to Lindora, where travel is impossible at certain times of the day, or of the entrance to Multiplaza Escazú in December. They argue that the examples are endless, yet the Executive Branch focuses exclusively on Parque Viva. They explain that, in short, the access problems in La Guácima exist “with or without Parque Viva” because of omissions and excesses by the State. They point out that no study establishes that the situation will change if Parque Viva is closed or if its activity is reduced below authorized levels; on the contrary, there is evidence that the problem persists when no activity whatsoever is taking place at Parque Viva.

They state that, if there is anything the community welcomes, it is that the government’s misuse of power has shed light on a longstanding problem that will not be resolved through the arbitrary administrative actions identified above. They reiterate that the ineffectiveness of those acts undermines their purported public purpose and demonstrates that their sole objective is to harm the finances of Grupo Nación in retaliation for the free exercise of journalism. They argue that, in a continued effort to persecute and intimidate through the impairment of economic interests, on 20 de julio de 2022, during a press conference, Nombre138 cited, among the reasons for canceling the electric-train plan, the existence of a branch line passing by Parque Viva, which “concerns” him and apparently forms part of the grounds for such a momentous decision. In that regard, they state that the park has the good fortune, or perhaps the misfortune, of being located near the right-of-way (derecho de vía) of a railway that has existed for quite some time; therefore, if a train is to be built using that right-of-way, it will have to pass through that location, and it would be useful for it to do so because farther along is the El Coyol free-trade zone, where 16.000 people work, in addition to another 16.000 citizens in the surrounding area.

They state that, for this reason, the branch line has been included in the electric-train plans since 2016 and, as INCOFER explained, it does not cost ¢150.000.000,00, as the president would have the public believe. They argue that Nombre138 should be the last person to harbor “concern,” because it was he, in his capacity as Ministro de Hacienda, who signed the loan project for the electric train, which, as he now stated, will be replaced by an earlier, far more expensive project that will be built only between San José and Paraíso de Cartago, which, according to the studies, is the segment with the least traffic. They consider that the arbitrary actions described leave no doubt as to the persecutory purpose directed against the newspaper for which they work, as well as their retaliatory nature, involving a misuse of power against its news and editorial positions and seriously violating the right to freedom of expression.

They state that the pressure exerted on the company’s finances places the future exercise of journalism at risk and invites compromises that would undermine it. They assert that the actions described violate article 29 of the Constitución Política insofar as they seek to curtail freedom of expression. Likewise, the foregoing is contrary to article 13.3 of the Convención Americana sobre Derechos Humanos, which forms part of the body of constitutional law (bloque de constitucionalidad) and prohibits the use of indirect mechanisms to curtail freedom of expression and the public’s right to receive information of societal interest. They maintain that such indirect mechanisms are disguised to appear legitimate, but their effects on such a fundamental human right can be devastating. They add that the Corte Interamericana de Derechos Humanos has developed an extensive body of case law regarding indirect mechanisms of repression and has long established that the Convention prohibits “(…) any act of public authority that entails a restriction of the right to seek, receive, and impart information and ideas, to a greater extent or through means other than those authorized by the Convention itself (…)”.

(Opinión Consultiva No. OC-5/85 de 13 de noviembre de 1985, Serie A No. 5, párr. 55). It also held that “(…) [when] assessing an alleged restriction or limitation on freedom of expression, the Court must not confine itself solely to examining the act in question, but must also examine that act in light of the facts of the case as a whole, including the circumstances and context in which they occurred. (…)”. (Caso Nombre21 vs. Perú, sentencia de 6 de febrero de 2001. Serie Nombre143 No. 74, párr. 154). Similarly, caso Nombre144 y otros vs. Venezuela, sentencia de 28 de enero de 2009. Serie Nombre143 No. 195. They add that the Corte Interamericana de Derechos Humanos established that “(…) the enumeration of restrictive means in article 13.3 is not exhaustive and does not preclude consideration of ‘any other means’ or indirect methods arising from new technologies (…)” (La Colegiación Obligatoria de Periodistas.

Opinión Consultiva No. OC-5/85 del 13 de noviembre de 1985. Serie A No. 5, párr. 48. Cfr.). Likewise, Caso Nombre136 vs. Venezuela. Sentencia de 28 de enero de 2009. Serie Nombre143 No. 194, párr. 340. They further explain that the high court has stated that freedom of expression has both an individual and a social dimension. In that regard, they describe how, on the one hand, it requires that no one be arbitrarily impaired or prevented from expressing their own thoughts and therefore represents an individual right; on the other hand, it entails a collective right to receive any information and to learn the thoughts of others (casos La colegiación obligatoria de periodistas, La última tentación de Nombre22 vs. Costa Rica, sentencia de 2 de julio de 2004, serie Nombre143 no. 107, párr. 108). They challenge the actions at issue in this constitutional rights proceeding (recurso) as also discriminatory against La Nación and its journalists.

They conclude that what is at stake is not merely the economic interests of La Nación, or even those of other smaller and more vulnerable media outlets, but everyone’s right to report and express opinions freely, as well as the public’s right to receive such information and opinions from a plurality of sources, in accordance with the guarantee established in articles 28 and 29 of the Carta Magna. In view of all the foregoing, they request that the petition be granted and that the temporary suspension of Parque Viva’s sanitary operating permit (permiso sanitario de funcionamiento), as well as the administrative acts supporting it, be annulled. They further request that Nombre138 Nombre01 be ordered to refrain from carrying out acts intended to directly or indirectly impair freedom of expression.

1. 2By order issued at 16:06 hrs. on 29 de julio de 2022, the proceeding was admitted and reports were requested from the respondent authorities.
2. 3By means of a brief (memorial) submitted to the Chamber on 8 de agosto de 2022, Nombre23, in her capacity as Minister of Health, submits a report and expressly states the following: “(…) In accordance with the foregoing, and in compliance with this statutory report (informe de ley), based on Official Letter N°MS-DM-5756-2022, Administrative File related to Parque Viva (attached as evidence), which states, in summary, the following: By way of context, a complaint dated 05 de julio del 2022 was referred for handling by this Ministerial Office through Official Letter N°MS-DM5756-2022 2 to Dr. Nombre24, Director of the Dirección Regional de Rectoría de la Salud Central Norte. The complaint was filed against “Parque Viva,” located in La Guácima de Alajuela, and specifically concerned the structural conditions of, and access to and exit from, that venue. I quote: “…This venue is commonly used to hold large-scale concerts attended by a great many people.The problem with this venue is its access points and the limited capacity of the roads, which serve a rural community, to accommodate an enormous number of vehicles at the same time. All streets leading to Parque Viva are very narrow, single-lane roadways in each direction, without bus bays or conditions suitable for heavy traffic. Every time there is a concert, the community’s streets become completely gridlocked, to the point that people take hours to travel short distances or leave the venue’s parking lot. The situation is extremely serious because, in the event of an emergency, the response of emergency services could be compromised. Indeed, we are referring to situations as dangerous as fires, earthquakes, structural collapses, and other tragic incidents that could occur during mass events. The streets of La Guácima de Alajuela cannot withstand the massive influx of vehicles, and residents could also have their rights impaired by these types of events because, in the event of emergencies in their homes or communities, the response of emergency authorities would take far longer than usual due to the enormous traffic jams caused by this venue.In view of the foregoing, and given the seriousness of the reported facts, the permanent closure of the venue is requested until a solution to the problem is found. This request is made to protect public health and the common interest. PARQUE VIVA DOES NOT MEET THE CONDITIONS REQUIRED TO HOST MASS-ATTENDANCE EVENTS. I conclude by stating that it is the responsibility of the State, in accordance with Article 50 of the Political Constitution, to ensure that the rights of the inhabitants Nombre01 are protected and that they are afforded the greatest possible degree of well-being. As evidence, eight photographs of the venue’s only 2 access points were attached (sic), demonstrating the condition of the surrounding streets. In addition, 2 media reports describing the problems caused by traffic jams resulting from mass events are attached.” In response to the complaint, at 13:50 hours on 05 de julio de 2022, the authorities of the Área Rectora de Salud de Alajuela 2 conducted a physical and sanitary inspection (inspección físicosanitaria) of the referenced property, including the corresponding assessment of its access roads, concluding as follows, according to Report N°MS-DRRSCN-DARSA2-1641-2022: “…that the Parque Viva facilities comply internally with appropriate physical, sanitary, and structural conditions; the emergency plans will be forwarded to the Regional Occupational Health Officer for an in-depth assessment and review.It is also recommended that the complaint be forwarded to the Ministry of Public Works and Transportation so that it may assess the reported conditions falling within its jurisdiction (roads in poor condition, only one lane in each direction, difficulty of access for emergency services via public roads, among others...” Accordingly, through Official Letter N°MS-DM-5754-2022, this Ministerial Office urgently requested from Mr. Nombre25, in his capacity as Minister of Public Works and Transportation, and Ms. Nombre26, Deputy Minister of Transportation and Road Safety, a technical opinion concerning the access roads to the private commercial venue known as “Parque Viva,” located in La Guácima de Alajuela, for the purpose of clarifying structural and human-safety matters, specifically the capacity of its access roads under a scenario involving the enormous number of vehicles and persons attending the mass events scheduled at that venue, in relation to potential emergencies, the response and access of emergency services, risks, and other matters.From that perspective, through Official Letter N°DVTSV-2022-0341 dated 06 de julio del 2022, Licda. Nombre26, Deputy Minister of Public Works and Transportation, forwarded Official Letter N°DVT-DGIT-2022-339, signed by Eng. Nombre27, an official of the Dirección General de Ingeniería de Tránsito, which issued an opinion stating that: “…the establishment known as ‘Parque Viva’ began operating in 2015 for the holding of various events (motorsports, conferences, fairs, as well as events involving mass gatherings of people, such as concerts and festivals). It is located across from the cantonal road known as ‘Dirección02,’ and the Municipality of Alajuela is responsible for granting access permits. It indicates that Dirección02 is a two-lane urban street—one lane in each direction—where this type of road could reach a maximum capacity of approximately 1.200 vehicles per hour in each direction and, depending on road conditions, a detailed study might find a capacity lower than the foregoing.It can therefore be stated that when mass-gathering events are held, the access road to Parque Viva lacks sufficient capacity to handle the traffic generated. It notes that, under a conservative scenario, without considering the parking areas surrounding the park or use of the racetrack, 4.900 vehicles per hour would be generated, representing more than twice what the road could accommodate…” For its part, according to Minutes N°28643-S-MOPT-SP of 07 de Julio de 2022, the Comité Asesor Técnico de Concentraciones Masivas stated: “…Having reviewed the aforementioned official letters and the recommendation of the Minister of Public Works and Transportation that a course of action be taken in response to the situation concerning the capacity of the access road to the venue known as Parque Viva, it is agreed to propose to the appropriate authorities that a Sanitary Closure Order (Orden Sanitaria de Cierre) be issued for mass events at the establishment known as Parque Viva, together with any measures to be taken by other relevant authorities.A remediation plan (plan remedial) addressing the reported conditions must be requested and submitted to this Comité Asesor técnico de Concentraciones Masivas….” This was duly communicated through Official Letter N°MS-DM-5838-2022 of 08 de julio de 2022- to Nombre08. Nombre24, Director of the Dirección Regional de la Rectoría de la Salud Central Norte, and on 08 de julio de 2022 the authorities of the Área Rectora de Salud de Alajuela 2 proceeded to issue Sanitary Order (orden sanitaria) N°MS-DRRSCN-DARSA2-OS-0368-2022 to Mr. Nombre28, legal representative of “Parque Viva,” operating under the legal entity “Grupo Nación GN Sociedad Anónima,” ordering, insofar as relevant: “…in accordance with the precautionary principle (principio precautorio) and pursuant to the following official letters: MS-DM5814-2022, through which Technical Report DVT-DGIT-2022-339 issued by the Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes was forwarded, and MS-DM-5838-2022, through which Minutes N°28643-SMOPT-SP of the Comité Asesor Técnico en Concentraciones Masivas were forwarded, this administrative act (acto administrativo) hereby orders the temporary suspension of Operating Health Permit (Permiso Sanitario de Funcionamiento) MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting and cultural events, fairs, and various exhibitions) until the technical opinions issued by the Benemérito Cuerpo de Nombre140 de Costa Rica and the Benemérita Cruz Roja Costarricense concerning the capacity of the access road to that establishment for the first-response units of those institutions, which are being obtained by the Ministry of Health, are available for analysis and for the adoption of the corresponding measures…Likewise, the entity you represent must submit a remediation plan that provides a solution to the access problem and the consequent risk to Public Safety and Health posed by the holding of Mass-Gathering Activities and the occurrence of a potential emergency during those activities….” Subsequently, in response to the request made by this Ministerial Office through Official Letter N°MS-DM-5870-2022 to emergency services concerning the situation at “Parque Viva,” institutions such as the Benemérito Cuerpo de Bomberos, the Cruz Roja Costarricense, and the Sistema de Emergencias 911 submitted to this Ministerial Office Report N°CRC-GG-SO-OF-074-2022 of 11 de julio de 2022, signed by Mr. Nombre29, Deputy Operations Manager of the Cruz Roja Costarricense; Report N°CRC-GG-OF-012-2022 of 12 de Julio de 2022, signed by Mr. Nombre30, General Manager of the Asociación Cruz Roja Costarricense; Technical Report N°CBCR-027150-2022-OPOB-00741 of 10 de Julio de 2022, signed by Mr.Nombre31, of Firefighting Operations; and Report N°911-DI-2022-2202 of 11 de julio 2022, signed by Ms. Nombre32 of the Sistema de Emergencia 9-1-1. In summary, the Cruz Roja Costarricense stated: “…that preventive measures must indeed be in place to reduce risks, such as emergency plans defining adequate access routes of sufficient width to permit an effective response in the event of emergencies; that interinstitutional participation will be required depending on the type of incident, including the Cruz Roja Costarricense, the Benemérito Cuerpo de Bomberos, the Police, private ambulance-service providers, and other stakeholders; and that the public roads in the community of La Guácima and surrounding areas are insufficient to provide rapid access for emergency units. This situation may be aggravated during mass-gathering events, which may be affected by heavy traffic congestion caused by the large number of vehicles parked along the sides of the road, resulting in arrival delays of up to 30 minutes.They respond to traffic accidents, structural fires, and medical cases, and in every instance human lives are at risk, making rapid and timely access by specialized rescue units essential. For their part, fire department officials indicate that fire engines are approximately 11 meters long and 3 meters wide, meaning that sufficient space is required for them to enter locations where incidents occur (emergencies such as fires, traffic accidents, and others). Specifically, access to ‘Parque Viva’ becomes difficult when two vehicles traveling in opposite directions must pass simultaneously, making entry impossible, or when vehicles are parked on the road, resulting in a response time much longer than would be possible under suitable accessibility conditions….”

For its part, it should be noted, based on the information provided by the 911 system, that a countless number of complaints have indeed been entered into the system, with a greater number occurring when mass-gathering events are being held at the site, as well as complaints concerning improperly parked vehicles, crowds of people, traffic congestion, fights arising from the inability to leave, collisions, and disturbances caused by activities associated with Parque Viva, such as races at Dirección03, vehicular traffic problems, among others. It should be noted that a potentially hazardous situation does exist at the site due to the lack of safe and unimpeded access to it, affecting the communities surrounding the property, and that the Ministry of Health must address it diligently. The administrative act (acto administrativo) is intended precisely to prevent future mass-gathering activities from endangering the health, safety, and lives of those attending the events, as well as those living near Parque Viva, who require unimpeded access to their communities (homes) and, when necessary, adequate access for emergency services.

It is therefore essential to submit the requested Remedial Plan (Plan Remedial), whose contents must include a solution to the access problems affecting the communities of La Guácima de Alajuela when mass-gathering activities are held. It should be mentioned that the administrative acts issued by this ministerial body were challenged and adjudicated in a timely and procedurally proper manner, thereby respecting due process (debido procedimiento) and the right of defense (derecho en defensa) of the regulated parties (administrados) who believed that their rights had been affected. The appeals were denied on the grounds that the challenged administrative acts should remain in effect, as demonstrated by the assessment conducted by the Ministry of Public Works and Transportation and the first-response institutions (Cruz Roja, Bomberos, Fuerza Pública and others). It was likewise decided that this measure temporarily suspending activities involving gatherings of people would remain in effect until the submission, approval, and implementation of a remedial plan guarantees that mass-gathering activities at Parque Viva will not cause the access roads to collapse, create disturbances for neighboring communities, or prevent the prompt and safe entry of vehicles and personnel from first-response institutions.

Regarding the assertion that other activities authorized for the establishment do not cause the roads to collapse, the establishment’s legal representatives must specify in the remedial plan requested by the health authority (autoridad sanitaria) of the Área Rectora de Salud Alajuela 2 what those activities are, as well as the number of persons per activity, so that they do not exceed the limits stated in the technical opinion (criterio técnico) issued by the authorities of the Ministry of Public Works and Transportation, for purposes of assessing, authorizing, and monitoring their performance (…) LEGAL BASIS (FUNDAMENTO DERECHO) Constitución Política, Articles 21 and 50: the right to life and to health is a fundamental right, as is the well-being of the population, and these therefore constitute legally protected interests (bienes jurídicos) of public interest, which the State has an inexorable obligation to safeguard.

Deriving from this duty of protection is the need to adopt and implement immediate protective measures whenever such legally protected interests are threatened or endangered, in accordance with the constitutional mandate set forth in Article 140, subsections 6) and 8), of the Fundamental Text. Ley 6227, known as Ley General de la Administración Pública, Article N°214, provides, and I quote: “…-1 Administrative proceedings (procedimiento administrativo) shall serve to ensure the best possible fulfillment of the purposes of the Administration, with due regard for the subjective rights and legitimate interests of the regulated party, in accordance with the legal system…(o)…-2 Their most important purpose is to ascertain the substantive truth (verdad real) of the facts serving as grounds for the final act...”. Ley General de Salud N°5395, Articles 1, 2 and 341, provides, and I quote: “…. The health of the population is a matter of public interest protected by the State, and it is an essential function of the Ministry of Health to safeguard the health of the population…

They may also, within the aforementioned powers and jurisdictions, order and adopt the special measures authorized by this law to prevent risks or harm to human health, to prevent such risks or harm from spreading or worsening, and to prevent private parties from continuing or repeating an infringement …” Sala Constitucional de la Corte Suprema de Justicia has repeatedly held that protecting and preserving the integrity of the natural environment and the health and lives of persons is a fundamental right; accordingly, the right to enjoy a healthy and ecologically balanced environment unquestionably prevails over private interests. This demonstrates beyond doubt that, when the environment and the health and lives of persons are at stake, and because the applicable rules concern public policy (orden público), no vested rights (derechos adquiridos) or consolidated legal situations (situaciones jurídicas consolidadas) may be asserted when they conflict with the fundamental right to a healthy and ecologically balanced environment.

CONCLUSION (CONCLUSIÓN) Ley N.º 5395, Ley General de Salud, establishes that the health of the population is a matter of public interest protected by the State; that the State itself—through the Ministry of Health—is responsible for safeguarding its effective protection; and that every natural or legal person is subject to its provisions, its regulations, and the orders issued by the Health Authority (Autoridad de Salud) within the scope of its authority (Articles 1 and 4). The legally protected interest of “health,” directly derived from the right to life enshrined in Article 21 of the Constitución Política, has been protected since the “early judgments” of Nuestra Sala Constitucional. The Ministry of Health, in its capacity as the nation’s Health Steward (Rector de la Salud), must ensure that the social production of health (producción social) is carried out efficiently and contributes to maintaining and improving the population’s quality of life in an equitable, supportive, and universal manner.

The Ministry could not fulfill this supreme organizational and coordinating function if it did not endeavor to address, monitor, regulate, and correct situations or circumstances that affect or endanger the health of the population. Accordingly, in exercising its stewardship role, it issues health measures and regulations and, through its operational programs and its bodies and agents, enforces and monitors compliance with them, reporting or penalizing, as appropriate, those who fail to comply with requirements or disregard health orders (órdenes sanitarias) issued by a Health Authority (Articles 1 and 2, Ley Orgánica del Ministerio de Salud). As shown by the factual analysis of the Área Rectora de Salud Alajuela 2’s handling of Confidential Complaint (Denuncia Confidencial) N°243-2022, in fulfillment of and adherence to the constitutional principle that proceedings brought before the Administration must receive prompt and effective justice (Justicia Pronta y Cumplida), I deem it appropriate to mention, insofar as relevant, resolution N°2008-013962, issued by Sala Constitucional at 9:31 hours on 19 de setiembre del 2008 concerning the right to prompt and effective justice: “…prompt and effective justice.

Article 41 of the Constitución Política provides: ‘By resorting to the laws, everyone shall obtain redress for injuries or harm suffered to their person, property, or moral interests. They shall receive prompt and effective justice, without denial and in strict accordance with the laws.’ Likewise, Article 8° of the Convención Americana de Derechos Humanos, signed in San José on 22 de noviembre de 1969, provides: ‘Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal previously established by law, in the substantiation of any criminal accusation made against that person, or for the determination of that person’s rights and obligations of a civil, labor, tax, or any other nature.’ It follows from the foregoing that the Administration of Justice is required to decide the matters brought before it within a reasonable time.

Article 41 of the Constitución Política—transcribed above—has not constitutionalized a right to specific deadlines, but rather the fundamental right of every person to have their case decided within a reasonable time, which must be determined in each specific case in light of the complexity of the matter, the conduct of the litigants and authorities, and the particular characteristics of each type of proceeding…” The Ministry of Health is therefore not exempt from the duty to conclude proceedings brought before it, in this case the complaint at issue. It is necessary to strengthen legal certainty (seguridad jurídica) for the complainant, the respondent, and the Administration itself by ensuring that the reported facts receive appropriate follow-up and are addressed within the proper timeframe and in accordance with the law, all within a defined timeline. Given the existence of environmental and public-health public policy (orden público ambiental y de salud), inherent in a Social State Governed by the Rule of Law (Estado Social de Derecho) such as ours, where the public interest in environmental protection and health generally prevails over private interests, vested rights, and consolidated legal situations, the latter have no place when they conflict with and may affect collective environmental and health rights.

The appellants have provided no support for their other reckless assertions, since the facts presented demonstrate that the Ministry of Health acted in accordance with the law and that they are attempting to use their employment relationship with well-known media outlets as a coercive means of alleging an “attack on the press.” The burden of commercial obligations and circumstances must be borne regardless of whether the appellants hold a position of public interest, such as ownership of a media outlet. They seek differentiated or privileged treatment compared with another business facing such Health Orders, linking them to an attack on or coercion of the public interest in access to information because their commercial activities and economic income have been adversely affected. This is wholly inconsistent with the constitutional principle arising from Article 33: “Every person is equal before the law, and no discrimination contrary to human dignity may be practiced.” Public Authorities, in complying with the law, must apply the Precautionary Principle (Principio Precautorio) in health matters, meaning that they must adopt any preventive measures necessary to avoid serious or irreparable harm to the health of residents.

As previously stated, the resolution of complaints and any proceedings brought before this Ministry is a right, since they cannot remain without a final decision indefinitely. Pursuant to Article 41 of the Constitución Política, Article 264 of the Ley General de la Administración Pública, and Decreto Ejecutivo N°37045 del 22/02/2012, known as Reglamento a la Ley de Protección al Ciudadano del Exceso de Requisitos y Trámites Administrativos, this ministerial representation acted in accordance with the principle of legality (principio de legalidad) that it is required to observe.

I take this opportunity to mention the press release issued on martes 12 de julio del 2022 by the Colegio de Periodistas y Profesionales en Ciencias de la Comunicación Colectiva de Costa Rica, known by its acronym COLPER, which states, in summary: “…The COLPER Board of Directors met with Nombre138 Nombre01 and Nombre138 Nombre03, and from both conversations we concluded that: 1.- Freedom of the press is a fundamental pillar of democracy, as both parties acknowledged. 2.- The interests of the majority must prevail over any individual interest. 3.- The situation concerning Parque Viva must be addressed in accordance with the principle of legality (principio de legalidad) governing the operation of the public administration (administración pública); for this purpose, an appeal procedure (vía recursiva) is available to challenge the administrative act (acto administrativo) ordering the suspension of the Sanitary Operating Permit (Permiso Sanitario de Funcionamiento), and the matter may be resolved by submitting a remedial plan (plan remedial).

Therefore, it is unrelated to and does not affect freedom of the press, since it concerns an activity governed by commercial law (derecho comercial) and the public law (derecho público) applicable to relations between regulated parties (administrados) and the public administration, particularly because Article 50 of the Constitución Política requires the State to guarantee the greatest well-being to all inhabitants of the country. 4.- The presidency Nombre01 reiterated its commitment to respecting the mass media, regardless of their editorial position or the interests of the business group they represent, and reaffirmed the commitment to developing a protocol governing press-government relations to guarantee access to information sources and mutual respect among journalists and media outlets…The COLPER Board of Directors will remain vigilant in safeguarding freedom of the press and freedom of expression in order to protect our institutional system (…)”.

1. 4In a written submission filed with the Chamber on 9 August 2022, Nombre15, in their capacity as Nombre138 of the Republic, submits a report and expressly states the following: “(…) The Political Constitution of Costa Rica is absolutely clear that the State has an inescapable obligation to guarantee, defend, and preserve the greatest well-being of all the country’s inhabitants. It further provides that every person has the right to demand a healthy environment. Likewise, our Constitution protects the freedom to express one’s thoughts, provided that this does not constitute an excess that unlawfully violates or harms a third party, or when what is said has no basis in reality. This guarantee encompasses not only the freedom of the news media to report truthfully, but also the freedom of individuals to exercise their full right to express themselves. You, the justices of the honorable Constitutional Chamber, know better than anyone the duty entrusted to me when I was sworn in before the people of Costa Rica as Nombre138 of the Republic, where the protection and safeguarding of the citizenry constitute a fundamental pillar of the Social Rule-of-Law State (Estado Social de Derecho).I received with no surprise, but with great concern, the application for amparo relief (recurso de amparo) filed by persons affiliated with Grupo Nación, in which they describe situations bearing little or no relationship to restricting this news outlet’s freedom of the press; instead, it would appear that, hiding behind that misguided argument, they demand—without any hesitation—that the State allow them to operate however they wish, even when doing so is contrary to law and detrimental to the public welfare. The applicants state that the financial capacity of Grupo Nación has been called into question because a group of CCSS officials properly proceeded to submit an inquiry to Nombre02 (Oficio GP-1193-2022/GF-575-06-2022), given their concern over the financial statements reported by Grupo Nación and the transfer of real property to a trust (fideicomiso) established by that company, which could negatively affect Grupo Nación’s ability to pay the bonds purchased by the CCSS and could ultimately seriously affect the Disability, Old-Age, and Death Insurance Fund and the CCSS Employees’ Retirement Fund.The payment they must make amounts to 5.950 million colones. The concern of the CCSS officials is entirely valid and justified: at the close of the first quarter of 2022, Grupo Nación reported a net loss of 350 million colones, almost 35% greater than the loss reported in March 2021. Moreover, it is deeply concerning that Grupo Nación’s largest asset, namely the property in Llorente de Tibás, is being transferred to a trust, together with other properties that the group has been acquiring, even though it has reported losses for several years. Justices, is it a threat to freedom of the press to be concerned and submit inquiries regarding the fate of funds belonging to thousands of Costa Ricans that were invested in these bonds? Grupo Nación, like any other debt issuer participating in the domestic securities market, is required to provide truthful information substantiating its financial health and may not hide behind its purported principal activity as a “news outlet” to allege attacks on freedom of the press when it is required to comply with the law.To date, although the CCSS sent a letter to Grupo Nación on 20 July 2022 containing the same inquiries submitted to SUGEVAI„, no response whatsoever has been received (see documentary evidence). The applicants’ allegation concerning the temporary suspension of Parque Viva’s sanitary operating permit (permiso sanitario de funcionamiento) rests on the same argument: namely, that Grupo Nación cannot be required, like any other Costa Rican business, to comply with the parameters established by law because, in its view, this immediately becomes an attack on freedom of the press. Strangely, Grupo Nación alleges that the complaint concerning Parque Viva was addressed swiftly and promptly by the health authorities, which is both commendable and proper. We are talking about the lives of thousands of people; this cannot be delayed, it cannot wait any longer, and it must be resolved with the greatest possible speed and willingness.There is no basis whatsoever for criticizing the government for having acted with due diligence to protect the citizenry; the measures were implemented correctly, and that is precisely what the public expects: a government that responds promptly, without delays or obstacles. How is it possible, justices, for Grupo Nación to claim that all its financial hopes rest on the revenue that Parque Viva’s economic activity may generate so that it can pay its employees, and that temporarily closing that venue to mass events because it fails to meet minimum health standards constitutes a direct attack on freedom of the press? That only demonstrates that La Nación’s financial health is not as they portray it and that they depend on this venue to survive financially. Regarding the specific case of Parque Viva, residents of La Guácima de Alajuela filed an anonymous complaint with the Ministry of Health explaining what they have endured for years because of this venue and the consequences that could arise unless the necessary measures are urgently taken.A clear example of what was reported appeared in an article published by the news outlet CRhoy.com on 22 June 2017, in which a resident of La Guácima de Alajuela stated: “We have to keep fighting to stop them from parking in front of our homes. Sometimes they send someone to direct the cars, but when the disorder becomes too much, they disappear (...) Everyone locks themselves inside. People (the residents) do not go out when there is a concert. The streets need to be widened; Tuesday (Nombre33 Concert, 6 June) was terrible.” In that situation, the principal fear is that an emergency requiring a resident to leave quickly could occur on one of those concert nights. “The person would die! If they got cut, they would bleed out (...) Everything gets blocked in every direction. Not only here, but also in Ciruelas and the area known as El Bajo (...) Some weeks there are as many as 3 concerts.” (See evidentiary file attached as documentary evidence.) Another example of the situation experienced by Parque Viva’s neighbors occurred on 9 July 2017.According to an article published by the news outlet Am Prensa on 09 July 2017, severe traffic congestion was reported around the venue during a concert held that afternoon at Parque Viva; most seriously, an alert concerning the threat of a terrorist attack was received, resulting in one person’s arrest. (See evidentiary file attached as documentary evidence.) After receiving the anonymous complaint, the Ministry of Health convened a session of the Technical Advisory Committee on Mass Gatherings to analyze the matter. In addition to officials from the Ministry of Health, the session was attended by officials from the Ministry of Public Works and Transportation, the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, and the Meritorious Fire Department. Acting within the permitted parameters and analyzing report DVT-DGlT-2022-339 (see documentary evidence) from the General Directorate of Traffic Engineering, which had previously been requested by the Ministry of Health and concluded that, when mass gatherings are held at Parque Viva, the access road lacks sufficient capacity to handle the resulting traffic, the committee therefore agreed to propose that the health authorities issue a closure order for mass events and require a remediation plan (plan remedial) addressing the reported conditions.Upon receiving the specialized committee’s recommendation, the Alajuela 2 Health Governing Area Directorate issued health order (orden sanitaria) MS-DRRSCN-DARSA2-OS-0368-2022 (see documentary evidence), temporarily suspending the sanitary operating permit for mass events until the respondent entity submitted a remediation plan that included a solution to the access problem. To date, Grupo Nación has not submitted the remediation plan. It should be recalled that the authorities have required other commercial groups to construct access routes to large shopping centers when the commencement of operations at those facilities is projected to increase traffic flow in the area where they were built. Examples include EPA in Desamparados and City Mall in Alajuela, which made substantial investments to comply with vehicular entry and exit requirements. In addition, the Regional Directorate of the Public Force of Alajuela issued its assessment in oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-08272022 (see documentary evidence), stating that the area of La Guácima de Alajuela is classified as sensitive because various forms of criminal activity converge there, and that the vehicle and pedestrian congestion outside Parque Viva reduces police mobility and causes an increase in calls from residents to 911 because of incidents disturbing public order.The Public Force refers to a specific case that occurred during a concert at Parque Viva on 07 May 2022, when, during a medical emergency, emergency responders required police assistance to transport the patient because the number of vehicles and people in the area prevented the ambulance from moving as quickly as necessary. For that reason, twelve police officers had to intervene, clearing a path on foot between the vehicles for 40 minutes. They conclude that the adverse effect on police services during mass events at Parque Viva is evident, conspicuous, frequent, and recurrent, given the impact on criminal activity and on emergency authorities’ response times. The Meritorious Nombre140 Department issued its assessment through oficio CBCR-0271502022-0PB-00741 (see documentary evidence), concluding that the communities of Rincón Chiquito, Rincón Herrera, and Guácima centro, as well as the Parque Viva facilities, are adversely affected because Nombre140 units’ response times increase considerably due to the condition of the roads surrounding the facility (sic), compounded by the blockages that would arise on the roads during mass events.This would prevent access to the communities during emergencies, thereby endangering lives and property. Given the disbelief caused by the fact that the local government had granted operating permits to Parque Viva despite all the evidence that its operating conditions are harmful to the surrounding communities, the Instituto Nacional de Vivienda y Urbanismo requested the project file from the Municipalidad de Alajuela. That file revealed deeply concerning circumstances described in oficio PE-243-07-2022 (see documentary evidence), namely: 1) The municipal land-use permits (permisos de uso de suelo) for the fairgrounds, amphitheater, hotel, and food service do not comply with the current zoning plan (plan regulador). 2) The property on which Parque Viva is located lies within a green zone and is not a medium-density residential subzone, as stated in the land-use certificate (constancia de uso de suelo) issued by the Municipalidad de Alajuela and used as the basis for issuing the construction permits.

• 3)The environmental viability (viabilidad ambiental) granted was issued for improvements to what had been the Autódromo La Guácima; nothing in the proceedings before SETENA indicates at any time that the activity to be conducted was intended for a fairground, which shows that the permits were processed separately, with the intention of circumventing minimum requirements that should have been requested.
• 4)There is no record that any traffic impact study measuring the impact of the vehicular flow associated with the activities conducted at Parque Viva was submitted to MOPT or the Municipalidad de Alajuela.
• 5)The project did not have authorization from the Benemérito Cuerpo de Nombre140 when it was approved.
• 6)NO improvements were requested at any stage to the cantonal road network (vialidad cantonal) (sic) providing access to Parque Viva. In doing so, the local government disregarded the provisions of Article 70 of the Urban Planning Law (ley de planificación urbana), which allows it to request contributions in view of the impact of the Parque Viva project on the canton’s public road network (Epa Desamparados and City Mall Alajuela cases). As stated, these actions are supported by the opinions of several specialized public institutions, some of which are Meritorious Institutions of the Nation (beneméritas de la patria), and whose actions enjoy complete credibility. These are not arbitrary undertakings, as the petitioners would have it appear; they involve responsible officials who are performing their duties, who possess the proper legal authority to do so, and who seek to protect the lives of Costa Ricans. Accordingly, protecting the lives of hundreds of families living near Parque Viva bears no relation whatsoever to attacking, restricting, or censoring Grupo Nación’s freedom of the press. I will not sleep with a clear conscience if, during the next concert, an emergency occurs and a little girl or an elderly person dies, or the homes of people of modest means are lost in a fire, simply for the economic benefit of a group that hides behind freedom of expression whenever it is asked to comply with the law. One relevant consideration supporting the actions of the health authorities is the statement issued by the Colegio de Periodistas de Costa Rica itself, which indicated that, after analyzing the matter, it had concluded that freedom of the press in Costa Rica is in good health and that this right is not being infringed in any way. In this regard, the Colegio de Periodistas stated in its official communiqué: “(...) The situation involving Parque Viva must be addressed under the principle of legality (principio de legalidad) governing the operations of the public administration, for which an appellate procedure exists to challenge the administrative act (acto administrativo) ordering the suspension of the health operating permit (permiso sanitario de funcionamiento); the matter may be resolved by submitting a remedial plan (plan remedial), and therefore it is unrelated to and does not affect freedom of the press, since it concerns an activity governed by commercial law and the public law that regulates the relationship between persons subject to the administration and the Public Administration, particularly since Article 50 of the Political Constitution requires the State to guarantee the greatest well-being to all inhabitants of the country (...)” (see attached documentary evidence file). Grupo Nación itself, in an article published on 27 de abril de 2021, acknowledges that the access conditions at the Parque Viva facilities are not the best. It expressly states that “Although Parque Viva has various public access routes, they are limited in their capacity to accommodate the steady movement of a large number of vehicles, such as occurs when events at the Anfiteatro Coca-Cola have been filled to capacity” (see attached documentary evidence file). To this we must add the article by the news outlet El Guardián entitled “Parque Viva acknowledged traffic-chaos problems as early as 2017 and waited until 2021 to seek a solution,” in which a Parque Viva employee acknowledges that mass events negatively affect the area’s ordinary traffic flow and that, during an event on 6 de junio de 2017 attended by 18 mil people, a collision brought the entire La Guácima de Alajuela area to a standstill, thereby worsening the departure of event attendees. (See attached documentary evidence file). The petitioners’ need to portray themselves as victims of persecution while defending Grupo Nación’s interests goes so far as to claim, according to the amparo appeal (recurso de amparo), that the cancellation of the electric-train project promoted by the previous administration was due to the fact that a branch of the route would have passed through the Parque Viva area, and that this was the reason for the decision that was made and announced. This argument is entirely false. The decision not to continue with the project was made with the common good of the public in mind, as a better-conceived and better-designed project would provide greater benefits for everyone. Grupo Nación, as a serious news outlet, should know that decisions of major national significance are not based solely on the colones and benefits that its company might receive, but encompass much more, including the Costa Rican people, for example. What the petitioners do not explore in their argument is that, according to an article published on 20 de agosto de 2020 by the news outlet CRhoy.com in the exercise of its freedom of the press, the administration then in office and Grupo Nación signed an agreement that would increase the cost of the electric train by nearly 150 mil millones de colones so that the railway line would pass near Parque Viva. (See attached documentary evidence file). Grupo Nación has always been afforded due process (debido proceso). First, it was given the opportunity to submit a remedial plan (which it has not done), and it has also had the opportunity to challenge the decision through administrative channels, with its appeal (recurso de apelación) still awaiting resolution. It is not true that the Administration has permanently closed the venue. The newspaper La Nación continues to operate and will continue to do so without any interference whatsoever by the State; that does not mean it will not be required to comply with the law when it is clear and manifest that it is operating unlawfully and to the detriment of Costa Ricans’ rights. Under no circumstances is there an indirect attack on freedom of the press; at no time have I ordered the health authorities to act in any particular manner, and all decisions have been made according to technical parameters on the basis of a complaint filed by the public itself. As a Costa Rican and a public official, I have the obligation and the right to speak out forcefully in response to situations that endanger the people’s public health; paradoxically, I have a constitutional right to express my thoughts freely, and I will do so most vehemently when protecting the rights of Costa Rican families, particularly when the most vulnerable population (sic) is involved. Recently, the Constitutional Chamber ruled on the right of public servants to express their opinions in Voto 09855-22; that document states: “(...) it must not be overlooked that freedom of expression, like freedom of the press, is an essential element of the democratic system—to such an extent that it is one of its core elements. This has been recognized by this Court, the Inter-American Court of Human Rights, and the European Court of Human Rights in their extensive case law. Based on the foregoing, and following the precedents of this Chamber, it must be concluded that the amparo appeal should be granted. (...) Accordingly, taking into account the particular factual circumstances of this case, the initiation of the administrative proceeding (procedimiento administrativo) does not in itself constitute a reasonable or proportionate means of imposing subsequent liability, as prescribed by Article 29 of the Constitution and Article 73 of the American Convention on Human Rights; on the contrary, it constitutes an intimidating instrument against the protected party and thereby prevents her from expressing what she thinks about the performance of a senior official of the Judiciary, with the restrictions on freedom of expression outweighing the benefits of the measure. Moreover, the compelling public interest in opening that investigation was not reliably demonstrated, and it was established that the criticisms made in the opinion article fell within what is expected of the inhabitants Nombre01 when exercising freedom of expression, whether to criticize or praise a public official’s performance. It is important to note that the boundaries between disciplinary authority and the freedom of expression of judicial officials must be analyzed on a case-by-case basis (sic) (...)”. Likewise, in the case of Nombre136 v. Venezuela itself, before the Inter-American Court of Human Rights, which the petitioners cite and which contradicts their own position, it is mentioned that the case is related to Report on Scope and Conclusions No. 119/06 of 26 de octubre de 2006, which states: “(...) most of the attached statements ‘(...) although they may contain forceful and critical content that could even be regarded as offensive, constitute legitimate expressions of thoughts and opinions concerning the particular ways in which a news outlet may practice journalism; they are protected and guaranteed under Article 13 of the American Convention, and the Commission does not find that they constitute any violation of that instrument.’” At this point, it is essential to refer to the Declaration of Chapultepec, specifically its ninth principle, which rightly states “that the credibility of the press is linked to a commitment to truth, to the pursuit of accuracy, impartiality, and fairness, and to a clear distinction between journalistic and commercial messages. The achievement of these objectives and observance of ethical and professional values must not be imposed. They are the exclusive responsibility of journalists and news media. In a free society, public opinion rewards or punishes.” The preceding paragraph inevitably raises the question of whether Grupo Nación is acting in accordance with this precept and whether, after all the opinions of the specialized entities have been analyzed, its credibility and commitment to the truth have not been called into question. In conclusion, I can state that no form of censorship, either direct or indirect, is being exercised against Grupo Nación; the news outlet continues to operate normally, informing the Costa Rican people in accordance with its editorial policy, and this guarantee will never be infringed. As has been demonstrated, the right that the petitioners allege was violated has no basis in reality, and the amparo appeal must therefore be denied in all respects (...)”. He requests that the appeal filed be denied.

1. 5In a written submission filed with the Sala on 17 de agosto de 2022, petitioner Nombre34 addressed the report submitted by the respondent authorities. He refers to the haste with which, on 5 de julio de 2022, the alleged complaint (denuncia) filed against Parque Viva was processed before various offices and in less than six hours (that is, allegedly between 8:00 hrs. and 13:50 hrs.). On this particular point, he expressly alleges the following: “(…) 1 -The copy of the case file (expediente) submitted by the respondents, folio 2, contains the anonymous complaint form received at 12:41 on 5 de julio in Alajuela. However, if we are guided by the official letter (Oficio) in which the Minister forwards it to Dr. Nombre24, Regional Director, the complaint was received in San José on that same 5 de julio. We CANNOT know the time because the document does not bear a received stamp from the Ministry’s central offices, contrary to the usual rules governing the receipt and handling of documents in public administration, but it could not have been submitted before 8 am., because that is when the offices open. 2- Between 8 am, assuming the complainant was there when the doors opened, and 12:24:14, when the Minister requested urgent technical opinions from the senior officials of the Ministerio de Obras Públicas pursuant to official letter MS-DM-5754-2022 appearing at folio 26 of the copy of the case file submitted by the respondents, there was time to draft and receive the complaint, decide that it required urgent attention by the Minister personally, escalate it to her office, and draft the official letter sent to MOPT.There does not appear to have been time to affix a received stamp that would allow us to determine the time when the complaint was submitted and assess the true speed of the proceedings, which may have been much greater. 3- The copy of the case file submitted by the respondents, folio 1, contains official letter MS-DM-5756-2022, electronically signed on 5 de julio at 12:38:24, by which the Minister forwards the complaint form to Dr. Nombre24, Regional Director. This occurred 2 minutes and 36 seconds before the received stamp was affixed to the form in Alajuela. Most extraordinary is that the Dirección Regional Central Norte, which encompasses Alajuela and Heredia, is located in the latter city, from which the document could not possibly have been physically transferred in a matter of minutes. If the transfer was electronic, it too was completed in record time. In 2 minutes and 36 seconds, the email was received, its contents were read, it was forwarded to Alajuela, where the complaint was printed and a physical received stamp was affixed—something that would have been unnecessary if the electronic route had been documented.If the speed with which anonymous complaints now apparently are processed had made it advisable to send a copy of the document to Alajuela while notifying the senior official in Heredia, disregarding the chains of command, one must ask why the case file contains only one copy—and why we must therefore understand the document bearing the Alajuela received stamp to be the Original. 4- The copy of the case file submitted by the respondents contains the aforementioned official letter MS-DM-5754-2022, signed on 5 de julio at 12:24:14, by which the Minister requested urgent technical opinions from MOPT’s senior officials, more than 14 minutes before the anonymous complaint was forwarded to the Regional Directorate in Heredia and almost 17 minutes before the complaint was received in Alajuela. 5- The copy of the case file submitted by the respondents, folio 19, contains the inspection report signed at 13:50 on 5 de julio at Parque Viva.In other words, 69 minutes would have elapsed between receipt of the complaint in Alajuela and completion of the on-site inspection. Apparently, the inspectors were ready at lunchtime to race like lightning toward La Guácima moments after the anonymous complaint was received in central Alajuela and perform their task at extraordinary speed, moving through every corner of the park (…)”. He mentions that, in her report, the Ministra de Salud implies that, as a result of the inspection conducted by authorities from the Área Rectora de Salud de Alajuela 2 on 5 de julio de 2022, an opinion was subsequently requested from MOPT. However, he states that this opinion had been requested almost an hour and a half before that inspection was completed. He adds that the official report of the Alajuela 2 inspectors (which recommends forwarding the complaint to MOPT so that it may assess the reported conditions falling within its jurisdiction) was signed outside office hours, on 5 de julio de 2022 itself, at 17:26:59 hrs.(when more than five hours had elapsed since the Ministra de Salud had requested urgent technical opinions from MOPT). Regarding this last matter, he expressly states the following: “(…) We do not know at what time the complaint was received or how it reached the Minister’s office without undergoing the usual document-receipt process. It is a sheet that anyone could have filled out at any time, yet it triggered extraordinary activity. A few hours of Nombre142 on 5 de julio were enough to carry out all the actions recorded in the official letters. What did the Minister forward to the office of Nombre35 in Heredia if, 2 minutes and 36 seconds later, the complaint was being stamped as received in Alajuela? Why is that the only record of receipt on the complaint form, and why is that form the only one appearing in the case file? Why did the Minister forward it to Heredia, and why was the complaint sent to Alajuela, if MOPT had already been consulted regarding the roads surrounding Parque Viva and it is known that the Ministerio de Salud has no jurisdiction over that subject matter?How did the Alajuela inspectors reach Parque Viva so quickly? This account of what occurred in less than six hours (perhaps much less, depending on the time when the complaint was submitted) at three Ministerio de Salud offices and the Parque Viva facilities preceded the rest of the frenetic activity that culminated in the suspension of the sanitary permits (permisos sanitarios). This is not how complaints, especially anonymous ones, are processed in any sector of public administration. The arbitrariness, vindictiveness, and misuse of authority (desviación de poder) are beyond doubt (…)”. Separately, he states that, as part of the practice of asking public institutions for documents to provide after-the-fact justification for the arbitrary actions taken in this case, the Instituto Nacional de Vivienda y Urbanismo issued a report, several weeks after the closure, concerning irregularities allegedly committed eight or nine years earlier.He mentions that the Municipalidad de Alajuela refuted it that same day, but that did not prevent Nombre138 from presenting it as part of the report submitted to the Sala. He maintains that each of the arguments set forth in INVU’s report is untrue and, specifically, states the following: “(…) 1-According to INVU, the municipal land-use permits (permisos municipales de uso de suelos) violate the zoning plan (plan regulador). As the Municipalidad de Alajuela correctly stated in its official communiqué of 3 de agosto de 2022, Article 60 of the Plan Regulador Urbano provides that if, five years after publication of that plan, the Municipalidad has not acquired the land designated as green areas, that land assumes the adjoining zoning designation that least adversely affects the user, and that is what occurred. The land-use authorizations, issued in a timely manner, fully comply with the current Plan Regulador.They are submitted as Evidence # 1. As shown by the land-use authorizations issued by the Municipalidad de Alajuela in junio del año 2013, the zoning of the property where Parque Viva is located (folio real matrícula , partido de Alajuela) was classified as a medium-density residential area. 2- According to INVU, the property where Parque Viva is located lies within a green area rather than a medium-density residential subarea, as indicated in the land-use certificate (constancia de uso de suelo) issued by the Municipalidad de Alajuela for the issuance of construction permits. False, as we have just explained and demonstrated. The truth is established not only by the duly issued land-use authorizations, but also by the provisions of the Plan Regulador. There is no basis whatsoever for questioning the validity of the land-use authorizations granted to Parque Viva. (The approved land-use authorizations are submitted as evidence.) 3- According to INVU, environmental viability (viabilidad ambiental) was granted for improvements to the Autódromo La Guácima.Nothing in the proceeding before Setena indicates that the activity to be undertaken was a fairground, which demonstrates that the permits were processed separately to avoid minimum requirements. The assertion is absolutely false; reading the resolution granting environmental viability is sufficient to prove it. That resolution, submitted as Evidence #2, was issued by the Secretaria Técnica Nacional Ambiental SETENA, # 3088-2013 de fecha 19 de diciembre del 2013, for the Project then known as “Mejoras al Autódromo La Guácima.” Clause 5 of the Por tanto lists the works to be carried out at what was then the Autódromo La Guácima. The detailed general description of the approved project is contained in Setena resolution number 3088-2013, attached as evidence. Those were the works authorized, and those were the works constructed. As should be obvious, SETENA grants environmental viability for the works, not for the current or future commercial Nombre141.At that time, Grupo Nación had not decided on the name Parque Viva and, to identify the project, used the Nombre141 of the previous activity. Nombre142 could decide to call it anything else without violating the environmental viability granted by Setena almost nine years ago. The Municipalidad’s communiqué states in this regard: “REGARDING ENVIRONMENTAL VIABILITY, the resolution approving the environmental viability reviewed by the Municipalidad de Alajuela in processing the construction permit for the Proyecto Parque Viva is correct and describes the works in general terms; those works match the plans submitted and duly approved beforehand by the other institutions and by the Colegio Federado de Ingenieros y Arquitectos, as recorded on the APC platform. The title of the project—that is, the Nombre141 by which it is identified in the case file—was what changed over time, which did not affect the nature of what was analyzed, much less the nature of the works (trade name).A change by the company to the project’s Nombre141 does not change the nature of the Works. 4- According to INVU, there is no record that any traffic impact study (estudio de impacto vial) measuring the impact of traffic flow associated with Parque Viva’s activities was submitted to MOPT or the Municipalidad de Alajuela. Grupo Nación timely submitted a traffic study to the Ministerio de Obras Públicas y Transportes for its review and analysis. Evidence of this is official letter DGIT-ED-5935-2014 del 01 de diciembre del 2014, in which the Dirección General de Ingeniería de Tránsito formally approved the study (See evidence). 5- According to INVU, the project did not have authorization from the Cuerpo de Nombre140 when it was approved. False. The plans were approved by the competent institutions, namely the Cuerpo de Bomberos, the Ministerio de Salud, and the Municipalidad de Alajuela. The approval in question is visible on APV’s digital platform, where all documents related to real-estate developments whose applications are reviewed by the Colegio Federado de Ingenieros y Arqutectos (sic) are stored (See evidence).

In this regard, the Municipality stated: “The Municipalidad de Alajuela does not replace other institutions in the performance of their duties; those institutions may review the case file and conduct the respective field inspections to ensure compliance with these. In any event, it is important to indicate that, as can be seen in the case file, each observation was corrected to the satisfaction of the respective institution, which resulted in approval by the CFIA. According to the case file, contract OC626867, dated 13-11-2013, establishes that ‘the project is approved, the institutional observations having been addressed by the professional.’ The involvement of the Nombre140 Corps in the development of the project is demonstrated by the official letter dated 16 de junio del 2014, in which the removal of fire hydrants is accepted and the correction of minor defects is requested. 6- According to INVU, no improvements to the cantonal road providing access to Parque Viva were requested at any stage.

In doing so, the local government disregarded the provisions of Article 70 of the Urban Planning Law, which allows it to request contributions based on the project’s impact on the canton’s road network. This is NOT true. Parque Viva made improvements to one-half of the cantonal roadway, including investments to widen the paved surface and construct curbs and gutters, sidewalks, a bus stop, and a bus bay, among others (…) MOPT, through official letter DVT-DGlT-ED-2015-4056, accepted completion of the construction project and placed on record its receipt of the works. (…)” Furthermore, it asserts that what Nombre138 reported regarding the train is untrue. It maintains that said authority knows there is no spur line valued at 150.000 million intended to benefit Parque Viva, because he himself participated actively in the project’s financial structuring and legislative presentation. It states that the agreement entered into between Grupo Nación and Incofer amounts to a letter of intent under which Grupo Nación undertakes to encourage private companies to rehabilitate the existing track in order to extend the current service to Coyol, where more than 32.000 people work in free-trade zones and related companies in the surrounding area.

It recounts that, as CINDE has stated, the benefit for those companies and for attracting investment lies in improving access to the area, particularly for workers. It likewise asserts that the benefit to Parque Viva is also obvious, as it is for the community of La Guácima and the surrounding areas. It therefore clarifies that “(…) Grupo Nación expresses its intention to seek the cooperation of companies that could benefit from the rehabilitation of the railway line laid out by Mr. Nombre36 at the end of the nineteenth century. Incofer, for its part, could extend its service without investing in the track and would gather valuable information about demand for the service. The agreement makes no reference whatsoever to the fantasy incorporated into Mr. Nombre138’s report, and the only mention of the electric train is to describe it as one of the government’s priorities and then immediately clarify that ‘while those processes move forward, Incofer expresses its interest in reopening railway services along sections of the railway that can gradually be rehabilitated, thereby promoting the use of railway services and yielding important data concerning demand for railway services (…)’”; and it adds that “(…) Mr.

Nombre138 does not even need need (sic) to see the agreement to recognize the falsehood incorporated into his report. In Supplement No. 112 to La Gaceta No. 110, 14 de mayo del 2020, page 83, his signature appears, as Minister of Finance, on the bill approving the loan from the Banco Centroamericano de Integración Económica to finance part of the electric train. On page 9 of the Supplement, attached to this filing as evidence, it states: ‘Ultimately, the Electric Passenger Train project consists of a substantial improvement to the railway transportation service operating between San José and the communities of Alajuela, Belén and Paraíso on three respective lines, together with the extension from Belén to Ciruelas and two new sections from Alajuela to Ciruelas and from Ciruelas to El Coyol, respectively. On the same page, among the project’s specific objectives, it states: “Design and construct new railway infrastructure in the GAM within the rights-of-way currently held by INCOFER...”’ ‘Further down, it states: “The project’s approximate investment is US$1 550.000.000 (…)” As demonstrated, Mr.

Nombre138 has always known that the C150.000 million spur line never existed, that there is no agreement between Incofer and Grupo Nación providing for it, that the total cost was USS1.550.000.000 (without the alleged additional C150.000 million), and that the works would be developed on the existing rights-of-way. Moreover, he endorsed all of this with his signature and solemn statements before the legislators. (…)” It asserts that the persecutory intent and the purpose of carrying out the campaign threat to destroy the structures that support our journalism, departing from the truth if necessary, are confirmed by the statements in the report concerning the train matter, which was initially cited as one of the elements of pressure intended to restrict its freedom of expression under the terms prohibited by Article 13.3 of the American Convention on Human Rights. Regarding Nombre138’s statements concerning the bonds purchased by the State, it expressly states the following: “(…) Elsewhere in the report, Mr.

Nombre138 states: ‘The petitioners (recurrentes) claim that he has cast doubt on Grupo Nación’s financial capacity because a group of CCSS officials properly submitted an inquiry to Sugeval... due to their concern over the financial statements reported by Grupo Nación and the transfer of real property to a trust established by this company.’ We never said any such thing, but the conduct of the Caja officials was neither proper nor undertaken merely on their own initiative. The impropriety of the procedure is evident from Nombre02’s response directing them to contact the issuer directly. Nombre138’s involvement in the matter is demonstrated by the recording of the press conference at which he confessed that he personally asked the Caja’s executive Nombre138 to submit the questions to Grupo Nación through Sugeval. Nombre138 appears to have realized the unusual nature of that call and added that the official responded that they were already doing so.

What we petitioners did say was that those actions served only to stage a press conference at which, without waiting for the questions to be answered, Nombre138 publicized the inquiry and questioned Grupo Nación’s solvency, with the evident purpose of carrying out his campaign threats to punish our journalism by destroying the structures that make it possible. As he stated, with the evident intention of appealing to emotion, the questions were submitted in defense of ‘grandmother’s’ pension. (See video on electronic evidentiary medium.) We also said that no financial authority has expressed the same doubts, that Grupo Nación maintains the ‘A’ rating assigned by Fitch, and that the company’s assets are twice its liabilities. The financial statements are public because Grupo Nación is listed on the stock exchange, and they show that the funds necessary to pay the next maturity have been set aside, after the two previous maturities and the interest thereon were paid punctually.

As is clear, we said, ‘the spectacle had no purpose other than to harm Grupo Nación by casting doubt on its finances in order to curtail our freedom of expression, because “the customary practice of institutional investors” is to consult the issuer directly and rely on the information published as required by law.’ ‘Justices, is it a threat to freedom of the press to be concerned and submit inquiries about the fate of the funds of thousands of Costa Ricans invested in these bonds?’ asks the President. Obviously not, but when the Head of State who vowed to destroy the structures supporting our journalism stages a press conference to publicize, from his high platform, an inquiry submitted at his request through the wrong procedure, which moreover had not yet received a response, and nevertheless casts doubt on the company’s finances and says that it is all to defend grandmother’s pension, after describing the Caja’s Nombre138 as ‘diplomatic’ for stating that the issuer has always paid punctually, the answer is different.

And when all those circumstances are combined with the closure of Parque Viva two days later, in addition to what was said about the train and the subsequent summary denial of the remedy proposed by Grupo Nación for traffic in the area (…), there can be no doubt that the threat announced during the campaign was carried out. It bears noting that on the day after the press conference concerning the bonds, Grupo Nación’s executive director, Nombre37, provided extensive public explanations and mentioned Parque Viva’s role in the company’s cash flow. One day later, the government precipitously closed Parque Viva (…)” It adds that the President’s claim that La Nación allegedly seeks to place itself above the law is a fallacy. It asserts that this was never alleged and that both Grupo Nación and they, as individuals, are subject to the law. It states that they do not seek an odious or antidemocratic exception.

It indicates that, in this case, there was a misuse of authority (desviación de poder) to restrict freedom of expression indirectly, thereby carrying out the threat issued during the campaign, to which, it clarifies, the presidential report made no reference at any time. Regarding the fallacious arguments that Parque Viva was closed in fulfillment of the duty to protect societal interests, it adds that “(…) It is NOT that we petitioners use freedom of expression as a pretext to exempt Grupo Nación from complying with the law; rather, Mr. Nombre138 and the Minister of Health use fulfillment of duty as a pretext to carry out the purpose of silencing us that was expressed during the election campaign and duly documented. That is precisely the definition of misuse of authority. As is evident from their arbitrariness, precipitousness, vindictiveness, discriminatory nature, and propagandistic use, the measures adopted do not seek to further public interests, but rather spurious interests consisting of retaliating against a news outlet and threatening and intimidating it so that it will not freely exercise its right to report the news.

This is the true purpose of the administrative acts (actos administrativos) adopted. They have nothing to do with defending grandmother’s pension, preventing the 150.000-million-colón spur line for the ‘little train,’ or improving emergency-service access to an area where traffic gridlock occurs every day, as it does in so many other places, at least twice a day, whether or not there is a concert, according to the residents’ testimony and the experience of anyone who has traveled through the area (…)” It likewise refers to the fallacy concerning the remedial plan. In this regard, it states that both Mr. Nombre138 and the Minister of Health insist in their reports on the temporary nature of the suspension of Parque Viva’s operating health permit (permiso sanitario de funcionamiento) and the requirement for a remedial plan “that would include a solution to the access problem,” adding that Grupo Nación has not submitted one.

It maintains that the recklessness of this argument becomes obvious when it is established that the inspection reports identify no problem with access to the park—which has four access points, not two as stated in the Minister’s report—or with the facilities.

The problem lies with the roads outside the park, and reference has already been made to the State’s permissiveness toward urban development in the area without providing the necessary infrastructure. They argue that much of that development occurred after Parque Viva was established and decades after the Autódromo La Guácima, where mass events, including larger ones, were held with all the required permits. They assert that Grupo Nación is not responsible for building the infrastructure necessary to adapt the roads to current and future development, but it has proposed a plan to do so at its own expense. The initiative has the necessary letters of no objection (cartas de no objeción) and is awaiting approval by the authorities that the President has criticized in other cases for being slow. They reiterate that, despite the foregoing, at a press conference on 13 de julio, without any study and contrary to the opinions already expressed by experts, the President announced his opposition to the idea based on the absurd notion that it would cause Dirección01 to collapse, “putting all of the Western Region, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas at risk.” They expressly state: “(…) That being the case, the problem is external to Parque Viva, but the solution proposed by Grupo Nación is suddenly unacceptable, and the only remedial plan (plan remedial) must be implemented inside the facilities, where the Ministry of Health found no problem; only in this manner, however, can it require a remedial plan that would make the park’s operations unviable through a drastic (sic) reduction in occupancy capacity (aforo).

That is the true objective. The position is so irrational that Mr. Nombre138 takes a different one in his report: ‘It should be recalled that the authorities have required other commercial groups to construct access routes to large shopping centers when it is projected that the opening of such facilities will increase traffic flow in the area where they were built. Examples include EPA in Desamparados and City Mall in Alajuela, which made substantial investments to comply with vehicle entry and exit requirements,’ the report states. Wonderful! Let us refrain from pointing out that these examples concern establishments that were required to build the access works as a condition for authorizing their construction. That is not the case with Parque Viva, which was built more than eight years ago with all the necessary permits. Let us also refrain from pointing out that the same requirement was not imposed on the businesses and housing projects that subsequently came to La Guácima.

Far from placing itself above the law, Grupo Nación seeks equal treatment, albeit belated and discriminatory in relation to other establishments in the area. It wants the opportunity to make ‘substantial investments to comply with vehicle entry and exit requirements,’ but Nombre138 considers this simultaneously necessary in the report to the Chamber and impossible at the podium during his press conferences. The contradictions are so obvious that Mr. Nombre138 submits as evidence a news report from a media outlet sympathetic to his administration, entitled ‘Parque Viva acknowledged traffic chaos problems as early as 2017 and waited until 2021 to seek a solution.’ The solution to which the publication refers is the construction of the modern four-lane access road that Mr. Nombre138 declares impossible at a press conference while simultaneously requiring it, according to him, in order to apply the law in the same manner as it was applied to EPA in Desamparados and City Mall in Alajuela.

Despite his declared opposition to the access road, he cites a news report criticizing Grupo Nación for having waited four years to resolve a public-infrastructure problem. The news report is inaccurate as to the dates. As the text confirms, La Nación reported on the access road on 27 de Abril del 2021. That does not mean it waited until 2021 to seek a solution. By that date, the designs had already been completed, and the purchase of land had begun at the start of 2020. The ‘master plan,’ designed with the assistance of U.S. consultants, was prepared in 2019, but there is no reason to dwell on the false claim that it waited until 2021 ‘to seek a solution.’ If we accept that claim as true, then Grupo Nación proposed a ‘remedial plan’ not only for Parque Viva but for the entire community, one year before its operating permits (permisos de funcionamiento) were suspended. What is the government waiting for to supposedly apply the law as it did ‘with EPA in Desamparados and City Mall in Alajuela’?

What is it waiting for to act with the same urgency applied to ‘Evolution Free Zone’? In that case, Nombre138 stated at a press conference: ‘I am going to tell you an anecdote. One of the most important companies in the world—literally—wants to build an 80,000-square-meter plant in Costa Rica to hire 5.000 Costa Ricans in the Western Region for positions with extremely high added value and salaries. They were stuck for 24 months waiting to see whether they would be allowed to build an exit from Route 1 to that enormous plant!’ (See the news report entitled ‘Los mandos medios a cada rato se atraviesan,’ La Nación, 4 de junio 2022. By 18 de junio, La Nación was already running the headline: ‘Zona franca en Grecia iniciará obras después de 24 meses varada por rechazo de acceso a ruta 1.’ Following severe public criticism of the Comisión de Carreteras de Acceso Restringido and intervention by the Ministro de Obras Públicas y Transportes, the problem was resolved.

The free-trade zone will attract 5,000 people per day during its first phase, but the plan is to create 18.000 jobs. That is the number of people who, on an exceptional basis, attend a concert at Parque Viva a couple of times per year. The news report cited by Mr. Nombre138 as evidence demonstrates only that Grupo Nación is willing to resolve at its own expense a community problem that the State has been unwilling to address, that the company has been transparent in its assessment of the surrounding public roads, and that the ‘remedial plan’ has been proposed since 2021. But the true purpose of the ‘remedial plan’ required by the government, as we stated in the constitutional amparo petition (recurso), is to ‘remedy’ critical journalism through a misuse of power (desviación de poder) intended to exert pressure on the company, consistent with the campaign threat, rather than to address the traffic-congestion problem (…)”.

They reiterate that they are a group of professionals whose freedom of expression is being restricted through arbitrary actions against the “structures” supporting their free exercise of journalism, precisely as the President promised. They state that this constitutes an indirect restriction (ataque indirecto), which is prohibited by Article 13.3 of the Convention and the case law of the Inter-American Court. They assert that they never stated that the payment of their salaries depends on Parque Viva, as was claimed in the Office of the President’s press release. They mention that reading the petition is sufficient to confirm everything stated, but it is worth noting the insistence on the alleged showing that they “depend on this place to survive financially.” They contend that the unfounded obsession with the company’s finances extends even to interpreting statements they never made. They indicate that “(…) if the desires revealed by that passage proved true, the closure of Parque Viva would put an end to the bothersome journalism practiced by us, the petitioners (recurrentes), which prompted the threat made during the campaign (…)”.

They add that, as though he were an unquestionable authority, Nombre138 cited Nombre138 of the Colegio de Periodistas to refute the contention that this constitutes an infringement of freedom of expression. They state that the only thing this section of the report demonstrates is that Nombre138 of the aforementioned association—to which a large number of journalists do not belong and which has never condemned Mr. Nombre138’s well-known attacks on the “villainous” press—either does not wish to contradict him on this matter or is unaware of the provisions of the American Convention and the case law of the hemispheric court. They assert that it should be taken into account that six former presidents of the aforementioned association have expressed positions contrary to those stated by the current Nombre138 of that organization. In summary, they expressly state: “(…) The report submitted to the Chamber by Mr.

Nombre138 lacks a factual basis; it relies on a series of reports that, far from having served as a legitimate basis for closing Parque Viva, were subsequently used to justify that closure; it frivolously distorts a series of facts in a manner incompatible with judicial proceedings; and, therefore, at no point does it justify the action against which we, the petitioners, have sought constitutional protection (amparo). The foregoing demonstrates beyond any reasonable doubt that we are, quite simply, facing an illegitimate use of the State’s administrative powers to undermine the exercise of a fundamental right, namely freedom of expression. This, in turn, constitutes a violation of basic rules of democratic coexistence (…)”.

1. 6By decision issued at 12:55 hours on September 1, 2022, the Justice presiding over this matter requested that the Minister of Health submit to the Chamber a physical, legible copy of the documentation sent with the report, namely, 164 folios related to the complaint filed against Parque Viva and the sanitary order (orden sanitaria) ultimately issued.
2. 7On September 5, 2022, the respondent Minister complied with the requirements of the decision of September 1, 2022.
3. 8In a brief submitted to the Chamber on October 13, 2022, Nombre23, in her capacity as Minister of Health, expressly states the following: “(…) ADDENDUM TO THE CONCLUSIONS: I request that it be deemed proven that the authorities of the Alajuela 2 Health Governing Area, in response to a complaint made on July 05, 2022, conducted a physical and sanitary inspection of the property in question, ‘Parque Viva,’ located in La Guácima de Alajuela, at 13:50 hours on July 05, 2022, including the corresponding assessment of its access roads. Report N°MS-DRRSCN-DARSA2-1641-2022 indicates, insofar as relevant, that the complaint was referred to the Ministry of Public Works and Transportation so that it could assess the reported conditions, as they fell within that agency’s jurisdiction (streets in poor condition, only one lane in each direction, difficulty for emergency services to gain access via public roads, among others).As a logical consequence, this Ministerial Office issued official letter N°MS-DM-5754-2022, urgently requesting that Mr. Nombre25, in his capacity as Minister of Public Works and Transportation, and Ms. Nombre26, Deputy Minister of Transportation and Road Safety, provide a technical opinion concerning the access roads and roads adjoining the private commercial venue known as ‘Parque Viva,’ in order to clarify structural and human-safety matters, specifically including the capacity of its access roads. As a result of the foregoing, by memorandum N°DVTSV-2022-0341 dated July 06, 2022, Licda. Nombre26, Deputy Minister of Public Works and Transportation, forwarded official letter N°DVT-DGIT-2022-339, signed by Ing. Nombre27, an official of the General Directorate of Traffic Engineering, which issued an opinion stating, insofar as relevant to this matter, the following: ‘…Dirección02 is a two-lane urban street—with one lane in each direction—where this type of road could reach a maximum capacity of approximately 1.200 vehicles per hour in each direction; depending on the road conditions, a detailed study could yield a capacity lower than that stated, and it can therefore be affirmed that, when mass-gathering events (eventos de concentración masiva) are held, the access road to Parque Viva lacks sufficient capacity to handle the traffic generated.It states that, under a conservative scenario, without considering parking areas on the park’s outskirts or use of the racetrack, 4.900 vehicles per hour would be generated, which represents more than twice the volume the road could accommodate…’ It also bears noting that, through Minutes N°28643-S-MOPT-SP of July 07, 2022, the Technical Advisory Committee on Mass Gatherings informed this Ministerial representation as follows: ‘…it is agreed to propose to the appropriate authorities a Sanitary Closure Order for mass events at the establishment known as Parque Viva, together with such measures as may be appropriate in coordination with other relevant authorities. A remediation plan (plan remedial) must be requested for the reported conditions and brought to the attention of this Technical Advisory Committee on Mass Gatherings…’ Accordingly, in light of the observations and recommendations of specialists in the field, on July 08, 2022, as extensively discussed in Report N°MS-DM-AU-3985-2022, the authorities of the Alajuela 2 Health Governing Area issued sanitary order N°MS-DRRSCN-DARSA2-OS-0368-2022, all pursuant to the precautionary principle (principio precautorio) and in response to the following official letters: MS-DM-55814-2022, by which Technical Report DVT-DGIT-2022-339, issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transportation, was forwarded; and official letter MS-DM-5838-2022, by which Minutes N°28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings were forwarded, ordering, insofar as relevant, the following: ‘…the temporary suspension of Sanitary Operating Permit (Permiso Sanitario de Funcionamiento) MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting and cultural events, fairs, and various exhibitions) until the technical opinions issued by the Benemérito Cuerpo de Nombre140 de Costa Rica and the Benemérita Cruz Roja Costarricense regarding the capacity of the establishment’s access road for the first-response units of those institutions—which opinions are being obtained by the Ministry of Health—are available for analysis and the corresponding action…Likewise, the entity you represent must submit a remediation plan that provides a solution to the access problem and the resulting risk to Public Safety and Health posed by the holding of Mass-Gathering Activities and the occurrence of a potential emergency during such activities…’ In addition, it must be recalled that there was Report N°CRC-GG-SO-OF-074-2022 of July 11, 2022, signed by Mr. Nombre29, Operations Deputy Manager of the Cruz Roja Costarricense; Report N°CRC-GG-OF-012-2022 of July 12, 2022, signed by Mr. Nombre30, General Manager of the Asociación Cruz Roja Costarricense; Technical Report N°CBCR-027150-2022-OPOB-00741 of July 10, 2022, signed by Mr. Nombre31, of Fire Operations; and Report N°911-DI-2022-2202 of July 11, 2022, signed by Ms. Nombre32 of the 9-1-1 Emergency System, in which the Cruz Roja Costarricense states, in summary, that: ‘…the public roads in the community of La Guácima and surrounding areas are inadequate for emergency units to gain rapid access, a situation that may be aggravated during mass-gathering events, which may be affected by severe traffic congestion caused by the large number of vehicles parked along the sides of the road, resulting in arrival delays of up to 30 minutes when responding to traffic accidents, structural fires, and medical cases, in all of which human life is at risk, thereby requiring rapid and timely access by specialized rescue units…’ as explained in detail in Report MS-DM-AU-3985-2022.Other important details include the reports also provided by Dirección01, which show that countless complaints are in fact entered into the system, in greater numbers when mass-gathering events are being held at the venue, including complaints regarding improperly parked vehicles, crowds of people, traffic gridlock, fights arising from an inability to leave, collisions, and disturbances caused by activities held at ‘Parque Viva.’ This Ministerial representation addressed each and every appeal filed against the Sanitary Order challenged herein, always doing so in a timely manner and in accordance with the required principle of legality (principio de legalidad), leaving no doubt that, in light of the constitutional mandate and the observations and recommendations of the institutions involved, this Ministerial representation was required to act immediately pursuant to the regulatory framework governing it, all in keeping with the Mission and Vision of improving the population’s quality of life and social development.ADDENDUM TO THE RELIEF REQUESTED: In light of the facts stated and the evidence contained in and submitted through Report N°MS-DM-AU-3985-2022 and this document, I respectfully request that the honorable Constitutional Chamber DENY this amparo proceeding (recurso de amparo), because it is evident from the information reported that, in complying with the constitutional mandate and applying the precautionary principle, the undersigned cannot and must not disregard the existing technical recommendations or the complaints filed with this Ministry. Accordingly, because none of the constitutional rights held by the complainants have been violated and the actions taken are consistent with our legislation, I respectfully request that THE UNDERSIGNED MINISTER OF HEALTH AND THE MINISTRY OF HEALTH BE ABSOLVED OF ALL LIABILITY AND THAT THIS AMPARO PROCEEDING BE DENIED (…)”.
4. 9The statutory requirements have been observed in the conduct of these proceedings.

Justice Nombre38 drafts the opinion; and,

WHEREAS:

I. SUBJECT MATTER OF THE PROCEEDING

The petitioner, in his capacity as Director of Diario La Nación, together with other journalists from that news outlet, alleges that on July 8, 2022—as a means of carrying out the threats publicly made weeks earlier by Nombre138 Nombre01 against that newspaper—the Ministry of Health ordered the closure of Parque Viva (acquired by Grupo Nación S.A. to diversify the company’s sources of revenue and thereby offset the loss of profits caused by the migration of advertising to internet sites) through an arbitrary act lacking any basis whatsoever. This, in turn, represents an indirect violation of freedom of expression and therefore contravenes the provisions of constitutional article 29 and Article 13.3 of the American Convention on Human Rights.

II. PROVEN FACTS

The following facts relevant to deciding this amparo proceeding are deemed established:

A. FACTS RELATED TO THE SANITARY ORDER ISSUED TO PARQUE VIVA:

• 1)Parque Viva is located in La Guácima de Alajuela. The site was formerly—specifically beginning in the 1970s—home to the facility known as Autódromo La Guácima (see evidence).
• 2)The site was acquired in 2013 by Grupo Nación S.A. (a corporation that also includes Periódico La Nación) as a means of diversifying the company’s sources of revenue and thereby offsetting the loss of profits caused by the migration of advertising to internet sites (see evidence).
• 3)By official letter No. DGIT-ED-5935-2014 of September 1, 2014, the engineer of the Permits Unit and the Head of the Studies and Designs Department, both of the General Directorate of Traffic Engineering of MOPT, stated the following regarding the Parque Viva project as it then existed: “(…) REGARDING THE TRAFFIC IMPACT STUDY After reviewing the traffic impact study (estudio de impacto vial, EIV) submitted (for the typical operating conditions of Centro de Eventos La Guácima), this Unit states that, from a functional standpoint, it has no objection to the project. This is because the Unit verified that, through implementation of the mitigation measures proposed on the basis of the capacity analysis performed, the levels of service (niveles de servicio, NDS) and queue lengths can be maintained at adequate levels. Approval of this EIV shall remain valid for one year, provided that traffic conditions and the surrounding road network do not change significantly and the project is constructed before that period expires; otherwise, this General Directorate reserves the right to request that the study be updated.

Furthermore, you are reminded that the authorization applies exclusively to the project submitted; therefore, any modification in size, use, or of any other kind must be analyzed by the General Directorate of Traffic Engineering to assess the new conditions, failing which this authorization shall cease to be valid (…)” (see evidence).

• 4)By Official Letter No DVT-DGIT-ED-2015-4056 of October 8, 2015, engineers from the Permits Unit of the General Directorate of Traffic Engineering of MOPT stated the following regarding the project under review: “(…) You are hereby informed that the expansions and signage at intersection # 3 with Dirección04 for the Project: Centro de Eventos La Guácima have been accepted. located in District N° 05: la Guácima, Canton NB 01: Alajuela, Province N° 02: Alajuela, on the property registered with the Catastro Nacional under number SJ-1244439- 2007, the permit for which was processed by this Department under expediente ED-AC-13-0081, according to the design shown on sheets 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10, signed by the responsible professional, engineer Nombre39, IC-16371. The foregoing is due to the fact that an inspection confirmed that the interested party had satisfactorily installed the corresponding vertical and horizontal signage, in accordance with the guidelines of the Road Signage Department of this General Directorate and with the Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA).

Based on the foregoing, this Technical Unit has no objection, from a functional and signage standpoint (not including the quality of the horizontal and vertical markings), to the use of the access in question (…)” (see evidence).

• 5)Parque Viva obtained the required permits, and therefore, in 2015, it was granted the corresponding sanitary operating permit (permiso sanitario de funcionamiento). In that same year, 2015, the aforementioned venue was reopened (see evidence).
• 6)The authorities of the Ministerio de Salud renewed Parque Viva’s sanitary operating permit No. MS-DRRSCN-DARSA2-RPSF-0177-2019, valid until February 2024 (see evidence).
• 7)Beginning in approximately 2019, Grupo Nación S.A. launched a project to build, over the ensuing years, a four-lane access road connecting Dirección05 with Parque Viva (or the future project known as Ciudad Viva) (see evidence).
• 8)On April 27, 2021, the entertainment section of the newspaper La Nación published the following article: “Parque Viva by way of the highway: this is what the planned direct access from Dirección01 will be like.” In addition, the article expressly stated the following: “(…) Since its inauguration in 2015, Parque Viva has established itself as one of the preferred venues for holding large-scale events in Costa Rica, including concerts, motorsports competitions, fairs, exhibitions, and more. Although Parque Viva has several public access routes, they have limitations in handling the steady movement of a large number of vehicles, such as the traffic generated when performances at the Anfiteatro Coca-Cola have sold out (…) For this reason, Grupo Nación, the owner of Parque Viva, undertook the design of a direct road from nearby Route 27, which connects San José with Caldera, as well as the acquisition of the land needed to complete that access road.

That stage of the process has already been completed, and the company will now focus on obtaining the corresponding permits to begin the work (…) The design of the new route, which will be open to public use, calls for a substantial improvement to the access roads connecting Dirección01 with La Guácima. The proposal for that intersection is to build two roundabouts, as well as a modern, wide, four-lane public road (two lanes in each direction) extending more than 1.2 kilometers to Parque Viva (…)” (see evidence).

• 9)In 2021 and at the beginning of 2022, the aforementioned road project preliminarily received approval from a number of government bodies. Thus, by Official Letter No. DVT-DGIT-ED-2021-1845 of September 21, 2021, an engineer and the deputy head of the Studies and Designs Department of the General Directorate of Traffic Engineering of the Ministerio de Obras Públicas y Transportes stated the following: “(…) This Directorate maintains its finding of no objection to the proposal from the standpoint of functionality and road safety, issued on July 13 of this year by Official Letter DVT-DGIT-ED-2021-1347; it therefore considers approval of the aforementioned preliminary design (anteproyecto) appropriate (…)”. By Official Letter No. GCTT 34-2021-0340 of September 28, 2021, the Acting Manager for Road and Bridge Contracting of the Consejo Nacional de Vialidad stated the following: “(…) With regard to the project identified in the reference, following its review by engineers from the various technical areas of the Directorate of Road and Bridge Design, it was determined that: The requested information was provided; however, it is clarified that, during the design stage, the minimum roundabout radii, turning radii, and geometric alignments for the project’s design vehicle must be observed.

In view of the foregoing, approval of this Preliminary Design is recommended (…)”. By Official Letter No. CNC-APM-SJC-0608-2021 of October 12, 2021, the Project Manager of the Concejo Nacional de Concesiones, among other matters, decided to grant “No objection” to the preliminary design for the access road from National Route No. 27 to Ciudad Viva. By Official Letter No. CCAR-2021-373 of October 28, 2021, the Secretary of the Restricted-Access Roads Commission of the Consejo Nacional de Viabilidad indicated that the commission had agreed to “(…) approve the preliminary design in accordance with the reports of the technical units (…)”. By Official Letter No. DVT-DGIT-ED-2022-0088 of January 18, 2022, an engineer and the deputy head of the Studies and Designs Department of the General Directorate of Traffic Engineering of the Ministerio de Obras Públicas y Transportes stated the following: “(…) This Directorate has no objection to the proposal from the standpoint of functionality and road safety and therefore considers approval of the aforementioned project appropriate (…)” (see evidence).

• 10)By Official Letter No. MS-DRRSCN-DARSA2-4070-2021 of December 16, 2021, the Director of the Área Rectora de Salud Alajuela 2 of the Ministerio de Salud granted Parque Viva approval of the declared occupancy capacities (aforos) for the amphitheater facilities, halls, and racetrack grandstands. Specifically, 18203 occupants were permitted in the amphitheater, 12450 occupants in the halls, and 2901 occupants in the grandstands (see evidence).
• 11)By Official Letter No. MS-DRRSCN-DARSA2-0163-2022 of January 20, 2022, authorities of the Área Rectora de Salud Alajuela 2 authorized an increase in the occupancy capacity of Parque Viva’s grandstands to 8841 occupants (see evidence).
• 12)At an unspecified time on July 5, 2022, an anonymous complaint concerning the operation of Parque Viva was filed with the Office of the Ministra de Salud and assigned number 243-2022. On that occasion, on the template or form established for filing such a complaint, the complainant checked or completed the following items relating to the grounds for the complaint: “2.1. Complaints concerning the structural conditions of buildings: a) Structural problems (condition of walls, roofs, floors, among others) (…) c) Failure to comply with the emergency plan for fire prevention and protection (…) f) Safety and hygiene conditions.” In addition, the complainant expressly stated the following: “(…) This venue is commonly used to hold large concerts attended by a great many people. The problem with this venue is its access points and the limited capacity of the roads, which serve a rural community, to receive an enormous number of vehicles at the same time.

All roads leading to Parque Viva are very narrow, one-lane-per-direction roadways, without bus bays or conditions suitable for heavy traffic. Every time there is a concert, the community’s roads become completely gridlocked, to the point that people take hours to travel short distances or leave the venue’s parking lot. The situation is extremely serious because, in a potential emergency, the response of emergency services could be compromised. We are referring to situations as dangerous as fires, earthquakes, structural collapses, shootings, and other tragic incidents that could occur at large-scale events. The streets of la Guácima de Alajuela cannot withstand the massive influx of vehicles, and the rights of its residents could also be impaired by these types of events because, in the event of emergencies in their homes or communities, the response of emergency authorities would take far longer than usual due to the enormous traffic jams caused by this venue.

In view of the foregoing and the seriousness of the facts reported, the permanent closure of the venue is requested until a solution to the problem is found. This request is made in order to protect public health and the common interest. PARQUE VIVA DOES NOT MEET THE CONDITIONS REQUIRED TO HOST EVENTS WITH MASS ATTENDANCE. I conclude by noting that, pursuant to Article 50 of the Constitución Política, it is the responsibility of the State to ensure that the rights of the inhabitants Nombre01 are protected and to provide them with the greatest possible degree of well-being. As evidence, I attach 8 photographs of the venue’s only 2 access points, which show the conditions of the surrounding roads. I also attach 2 news articles describing the problem caused by the traffic jams resulting from large-scale events (…)” (see report and evidence).

• 13)By Official Letter No. MS-DM-5754-2022, digitally signed at 12:24:14 hrs. on July 5, 2022, the Ministra de Salud urgently requested from the Ministro de Obras Públicas y Transportes and the Viceministra de Transportes y Seguridad Vial a technical opinion concerning the access roads to the private commercial venue known as Parque Viva. On that occasion, the following was expressly stated: “(…) The technical opinion is required to clarify structural and life-safety matters. Accordingly, consideration must be given to the capacity of the roads under conditions involving the enormous number of vehicles and people attending large-scale events at that venue at the same time, in relation to potential emergencies, access and response by emergency services, risks arising from conflict situations, etc. (…)” (see report and evidence).
• 14)By Official Letter No. MS-DM-5756-2022, digitally signed on July 5, 2022, at 12:38:24 hrs, the Ministra de Salud forwarded the complaint for handling to the Director of the Dirección Regional de Rectoría de la Salud Central Norte of the same Ministry (an office located in Heredia) (see report and evidence).
• 15)The aforementioned complaint was received by the Área Rectora de Salud de Alajuela 2 at 12:41 hrs. on July 5, 2022, as shown by the corresponding physical stamp affixed to the document (see evidence).
• 16)At 13:50 hrs. on 5 de julio de 2022, the authorities of the Área Rectora de Salud de Alajuela 2 conducted a physical and sanitary inspection (inspección físico sanitaria) at Parque Viva (inspection report No. MS-DRRSCN-DARSA2-1639-2022). As a result of that inspection, report No. MS-DRRSCN-DARSA2-1641-2022, dated 5 de julio de 2022, was prepared, stating the following: “(…) As recorded in visual inspection report MS-DRRSCN-DARSA2-IT-1639-2022, on 05 de julio del 2022 at 13:50 hours, a specific on-site visit was conducted to assess the allegations made by the complainant. Regarding the reported issue, specifically the section concerning structural problems, no visible structural problems relating to physical and sanitary conditions were found inside the venue facilities during the inspection; the condition of the walls, floors, restrooms, and other spaces used by people presented no observable problems.

Regarding noncompliance with the emergency plan (plan de emergencia), four emergency plans were found on site, corresponding to the division into sectors implemented by the company for its facilities, with a specific plan for the Centro de Eventos, El anfiteatro Coca Cola, the Circuito de Competencias, and the Áreas Comunes. It was confirmed on site that the corresponding signs had been installed, and the presence of firefighting equipment and the respective supplies (food, first-aid kit, splints, among others) was verified. Regarding health and safety conditions (condiciones de seguridad e higiene), no hazards or unsafe conditions that could affect the well-being of the company’s employees were observed during the inspection. As to the road-related issue identified by the complainant, it should be emphasized that this does not fall within the jurisdiction of the Ministerio de Salud; however, the facility’s entry and exit points were analyzed.

As shown in anexo 1, the facilities have four vehicle entry and exit points and parking capacity for 940 automobiles in the parking area near access point 2, as well as space for 3000 vehicles in the competition-track area near access points 3 and 4 of Parque Viva. In addition, the four access points are interconnected throughout the facilities (an inspection was conducted to verify this), which facilitates the departure of vehicles. 3. CONCLUSION. Based on the foregoing, it may be concluded that the facilities of Parque Viva have adequate internal physical, sanitary, and structural conditions. The emergency plans will be forwarded to the Encargado Regional de Salud Ocupacional for assessment and in-depth review. It is also recommended that the complaint be forwarded to the Ministerio de Obras Públicas y Transporte so that it may assess the reported conditions falling within its jurisdiction (streets in poor condition, only one lane in each direction, difficulty of access by emergency services using public roads, among others) (…)” (see report and evidence).

• 17)By official letter No. DVT-DGIT-2022-DVT-DGIT-2022-334 (sent on 5 de julio de 2022), the authorities of the Ministerio de Obras Públicas y Transportes addressed the request submitted by the Ministra de Salud through official letter No. MS-DM-5754-2022 (see report and evidence).
• 18)Through official letter No. DVTSV-2022-0341, dated 6 de julio del 2022, the Viceministra de Obras Públicas y Transportes forwarded to the Ministra de Salud official letter No. DVT-DGIT-2022-339, signed that same day by the Director General de Ingeniería de Tránsito in response to the request made through official letter No. MS-DM-5754-2022. This first official letter also requested that official letter No. DVT-DGIT-2022-DVT-DGIT-2022-334, sent by email the previous afternoon (that is, 5 de julio de 2022), be rendered without effect in order to include additional information in the analysis of access to Parque Viva. Official letter No. DVT-DGIT-2022-339 expressly stated the following: “(…) 1. Parque Viva is a venue that opened its doors in 2015 and is used to hold various types of events, such as motorsports events, conferences, fairs, and mass-gathering events (eventos de concentración masiva), including concerts and festivals. 2.

According to the information provided on the Parque Viva website, the venue has a capacity of up to 20.000 thousand people. It also has 4.900 private parking spaces, which may be expanded by up to 6.000 spaces by using the racetrack. 3. At present, the Dirección General de Ingeniería de Tránsito has no request relating to the existing access to Parque Viva. Nor has it conducted any functional study of the roads under a scenario involving a mass event such as those held at the venue. 4. Parque Viva is (sic) located opposite a cantonal road called Dirección02. Because it is a cantonal road, responsibility for granting access permits (permisos de acceso) lies with the Municipalidad de Alajuela (…) 5. Dirección02 is a two-lane urban street, with one lane in each direction of travel. This type of road could reach a maximum capacity of approximately 1.200 vehicles per hour in each direction. Depending on the road conditions, a detailed study could determine a capacity below that figure.

Based on the foregoing data, it can be stated that when mass-gathering events are held, the road providing access to Parque Viva does not have sufficient capacity to handle the traffic generated. Under a conservative scenario, without considering parking areas located outside the park or use of the racetrack, 4.900 vehicles per hour would be generated, which is more than twice the volume the road could handle (…)” (see report and evidence).

• 19)The foregoing official letters Nos. DVTSV-2022-0341 and DVT-DGIT-2022-339 were forwarded by the Directora de la Dirección Regional de Rectoría de la Salud Central Norte del Ministerio de Salud to the Director del Área Rectora de Salud Alajuela 2 through official letter No. MS-DRRSCN-1831-2022, dated 6 de julio de 2022 (see evidence).
• 20)Through official letter No. MS-DM-5814-2022 of 7 de julio de 2022, the Ministra de Salud forwarded to the Directora de la Dirección Regional de Rectoría de la Salud Central Norte the contents of the aforementioned official letter No. DVT-DGIT-2022-339 (see evidence).
• 21)The Comité Asesor Técnico de Concentraciones Masivas held an extraordinary session on 7 de julio de 2022 at 14:30 hrs., attended by the Ministra de Salud in her capacity as coordinator, the Ministro de Obras Públicas y Transportes, and officials from the Cruz Roja Costarricense, the Dirección de la Policía de Tránsito, the Comisión Nacional de Emergencias, the Cuerpo de Bomberos, the Sistema de Emergencias 9-1-1, and Gestión de Riesgo del Ministerio de Salud. The minutes of that session, No. 28643-S-MOPT-SP, stated the following: “(…) Based on the powers established in article 4° of executive decree 28643, the Committee proceeds to consider the case. At the request of the Ministra, Mr. Nombre40 of the Ministerio de Salud reads document MS-DRRSCN-DARSA2-1641-2022 from the Área Rectora de Salud Alajuela, which relates to official letter MS-DM-5756-2022 from the Ministra de Salud. Mr. Nombre41 speaks.

He puts the situation regarding the access roads into perspective. Mr. Nombre42 reads report DVT-DGIT-2022-339 (addressed to the Ministra de Salud with memorandum DVTS-2022-0341). The Ministra speaks. Mr. Nombre43 of the Cuerpo de Nombre140 speaks and notes the difficulties encountered by the Cuerpo de Nombre140 in gaining access because of the type of emergency units used, which measure 11 meters long and 3 meters wide, making it difficult for us to pass when vehicles are present on both sides. The access roads must be widened, or there must be another access point with sufficient space for emergency units to travel and gain access. Mr. Nombre41 speaks. He points out the improper land use (uso del suelo). The road must be widened to ensure adequate traffic flow during events and emergencies occurring during events. That tertiary cantonal road must be improved. There is a risk to human life.

Mr. Nombre44 of the Comisión Nacional de Emergencias speaks. There is a valid operating permit (permiso de funcionamiento). Caution must be exercised, and the reality of the Country must be considered. Mr. Nombre40 speaks. Other places have similar situations. The Ministra de Salud speaks, responding to the statements made by Mr. Nombre145. Mr. Nombre45 speaks. The venue has experienced problems since it was the autódromo la Guácima. It has only one access road, which presents a problem because traffic must pass through residential areas. There is still no regulation governing mass events (reglamento de eventos masivos). In this case, Parque Viva is unsuitable for mass events. Nombre46 speaks he (sic) states that since 01 de enero del 2022, there have been 18 reports of traffic problems so far this year, more than 30 collisions, 4 reports of improperly parked vehicles, 5 fights, 3 incidents involving disturbances of public order, among other reports.

Mr. Nombre47 speaks. He expresses concern regarding the number of ambulances that attend each event, which sometimes does not exceed a single unit. RESOLUTION: Having reviewed the aforementioned official letters and the recommendation of the Ministerio de Obras Públicas y Transportes that a course of action be taken in response to the situation involving the capacity of the access road to the venue known as Parque Viva, it is resolved to propose that the corresponding authorities issue a health closure order (orden sanitaria de cierre) for mass events at the establishment known as Parque Viva, together with such measures as may be appropriate in coordination with other relevant authorities. A remedial plan (plan remedial) addressing the reported conditions must be requested and, if prepared, brought to the attention of this Comité Asesor Técnico de Concentraciones Masivas (…)”. The authorities of the Ministerio de Salud, MOPT, Cuerpo de Bomberos, Comisión Nacional de Emergencias, and Cruz Roja Costarricense voted in favor of that proposal (see report and evidence).

• 22)The decision set forth in the aforementioned resolution was communicated by the Ministra de Salud to the Directora Regional Rectoría de Salud Central Norte through official letter No. MS-DM-5838-2022 of 8 de julio de 2022. That official letter stated the following: “(…) This material is forwarded for your assessment and action, and so that the matter may be handled in accordance with the institution’s internal regulations, within the framework of the law (…)” (see report and evidence).
• 23)On July 8, 2022, the authorities of the Alajuela 2 Health Governing Area of the Ministry of Health issued sanitary order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 (electronically signed at 12:37:21 hrs. on that same July 8, 2022). That order expressly stated the following: “(…) In response to anonymous complaint N° 243-2022, forwarded (sic) by official letter MS-DM-5756-2022 from the Office of the Minister of Health, concerning apparent structural problems, failures to comply with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in visual inspection report (acta de inspección ocular) MS-DRRSCN-DARSA2-1639-2022 dated July 05, 2022, the respective site visit was conducted at 13:50 hours to assess the matters stated in the complaint. Likewise, in accordance with the precautionary principle (principio precautorio) and in consideration of the following official letters: MS-DM5814-2022, forwarding Technical Report DVT-DGIT-2022-339 issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transportation, and official letter MS-DM-5838-2022, forwarding Minutes N°28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings, the following administrative act (acto administrativo) hereby orders the temporary suspension of Sanitary Operating Permit (Permiso Sanitario de Funcionamiento) MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting and cultural events, fairs, and various exhibitions) until such time as the technical opinions (Criterios técnicos) issued by the Benemérito Cuerpo de Nombre140 de Costa Rica and the Benemérita Cruz Roja Costarricense regarding the capacity of the access road to that establishment for the first-response units of those institutions, which are being requested by the Ministry of Health, are available for analysis and the adoption of the corresponding measures.

Likewise, the entity you represent must submit a remedial plan (plan remedial) addressing the access problem and the resulting risk to Public Safety and Health posed by the holding of Mass-Gathering Activities and the occurrence of a potential emergency during such activities (…)”. Additionally, reference was made to the consequences of failing to comply with the foregoing, and it was stated that a motion for reconsideration with a subsidiary appeal (recursos de revocatoria con apelación en subsidio) could be filed against that order within five business days following service thereof. This sanitary order was served by email on the representative of Parque Viva on July 8, 2022, at 12:40 hrs., with an indication that “important annexes” were attached. The communication was also personally served that same day at 14:15 hrs. (see report and evidence).

• 24)By official letter No. MS-DM-5870-2022 dated July 8, 2022, digitally signed at 17:05:24 hrs., the Minister of Health requested the following from the Director of the Cuerpo de Nombre140 and the President of the Cruz Roja Costarricense: “(…) detailed and comprehensive reports, from within their respective areas of authority, concerning the situation at Parque Viva in La Guácima de Alajuela in connection with the holding of mass events and the risks posed to human health and life. The foregoing is requested as a supplement to the matter discussed at the meeting of the Technical Advisory Committee on Mass Gatherings held last Thursday, July 7, 2022. The foregoing is requested as soon as possible (…)” The contents of this official letter were communicated to the Director of the Alajuela 2 Health Governing Area by official letter No. MS-DRRSCN-1858-2022 dated July 11, 2022, signed by the Central North Regional Directorate for Health Governance (see evidence).
• 25)On July 10, 2022, the politics section of the newspaper La Nación published an article entitled “They want us to clean up the mess they made, says La Guácima community leader.” An excerpt from that article is quoted below: “(…) In a highly unusual telephone call on Saturday, July 9, the La Guácima community leader, Nombre20, received a request from the Government that she publicly support the closure of Parque Viva, a business owned by Grupo Nación. The man who called her, whom she was unable to identify, told her that they were in a meeting assessing the matter and even provided her with a template for a letter addressed to the Minister of Health, Nombre48, for the sole purpose of having her sign it. She was told that the intention was for the letter to be in the Minister’s hands that same Saturday. Nombre146, president of the Asociación de Desarrollo Integral de la Guácima, refused that request (…) Instead, she called an extraordinary meeting of the neighborhood association’s board to decide whether or not to take a position.

In any event, she warned, they would not reproduce the contents of the letter template provided to them by the official from the Dirección Nacional de Desarrollo de la Comunidad (Dinadeco). The community leader acknowledged that improvements are needed in the vicinity of Parque Viva because of the traffic jams that occur. Nevertheless, she warned that, in her opinion, the Government wants to ‘clean up’ the mess ‘they made’ by closing the event center (…)” (see evidence).

• 26)By official letter No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 dated July 10, 2022, the Deputy Regional Director of the Alajuela Directorate of the Fuerza Pública informed the Deputy Minister of Public Security of the following: “(…) The Alajuela Directorate of the Fuerza Pública has been experiencing interference with its response to police incidents in the area immediately surrounding Parque Viva, located in Rincón Chiquito in the district of La Guácima de Alajuela, whenever activities are held at that venue. The Fuerza Pública classifies this zone as a sensitive area because various criminal activities converge there, notably crimes against life (homicides and injuries), assaults, fights, discharge of firearms, theft, and theft from vehicles. Regarding the frequent holding of mass events at the Parque Viva commercial establishment during this year, I report the following: These activities have a dynamic capacity of up to a maximum of 27.000 people, with an average attendance of approximately 18.500 people per event (the maximum capacity of the amphitheater used for those purposes).

Because these events are held weekly, that number of people traveling to and remaining at the venue throughout the activities creates enormous traffic jams in the immediate vicinity and surrounding area. This substantially increases police response times for emergencies reported to 911 that fall within the jurisdiction of the Fuerza Pública, thereby impairing police services. As a specific example, during the concert called Nombre49, held on Saturday, May 07 of this year, the Cruz Roja Costarricense required police assistance to transport a patient during a medical emergency because the number of vehicles and people on the public roadway prevented the ambulance from moving. The intervention of the Operational Support Group, comprising approximately twelve officers, was required to extract the patient by clearing a path on foot for a prolonged period of 40 minutes. In addition to the delay in responding to the emergency, those police resources should have been devoted to public-safety duties.

It is also important to add that, while these high-frequency mass events are taking place, they cause a marked increase in property crimes. As previously stated, the congestion of vehicles and people outside the park during events reduces police mobility and generates an increase in calls from residents to 911 regarding incidents involving disturbances of the peace, fights, violence against women, minors exposed to danger, reckless driving, and the consumption of alcohol and drugs on public roads. This Regional Directorate’s technical opinion is that the impairment of police services during mass events in the aforementioned area is evident, notorious, frequent, and recurring, because the impact of the various criminal incidents generated by the enormous concentration of visitors affects the normal activities of the local population and daily police operations. Because of the number of event attendees, ordinary and extraordinary police resources must be deployed at different points throughout the district.

Although any incident on a normal day is usually answered within 10 to 15 minutes, when activities are held at Parque Viva the response time for an emergency exceeds 40 minutes, even when emergency equipment such as lights and sirens is activated, because the streets in this sector are extremely narrow, with one lane in each direction and no bus bays or shoulders. The situation becomes even more complicated when traffic accidents occur or when vehicles belonging to persons attending the activities are irresponsibly parked along the roadside, across garage entrances, or even at intersections or corners, making it physically impossible to travel along the main or secondary roads leading anywhere—not only within Rincón Chiquito, but throughout the rest of the district of La Guácima—because even if drivers traveling on these roads wish to make way for police patrol vehicles, they have no room to maneuver or create space.

During an activity at the beginning of the year, a bus traveling to pick people up at the venue fell into a hole beside the intersection of the main road and Dirección05. On that very day, alerts had been received regarding a fight between two people involving bladed weapons, but it took more than two hours to reach the location, and by the time officers arrived the fight had already occurred. In that incident, local residents became involved in the events because of the prevailing obstruction of the roads and impediments to vehicle traffic, which also produces a misinterpretation when the police response is analyzed. For all the foregoing reasons, this technical opinion concludes that police services are indeed impaired and adversely affected in the area immediately surrounding Parque Viva when mass events are held. There is also a negative impact on the incidence of crime, with certain criminal phenomena increasing at that location. Lastly, the adverse effects suffered by local residents are evident, and the response times of emergency authorities also increase significantly (…)” (see evidence).

• 27)On 10 de julio de 2022, in response to the request made in official letter No. MS-DM-5870-2022, technical report No. CBCR-027150-2022-OPB-00741 was issued, signed by an official from Nombre140 Operations and addressed to the Minister of Health, which stated the following: “(…) Regarding the situation at Parque Viva, located in La Guácima de Alajuela, in the context of mass events (eventos masivos) and situations posing a risk to human health and life, it indicated (sic): The fire engines of the Benemérito Cuerpo de Nombre140 de Costa Rica are approximately 11 meters long and 3 meters wide; this means that sufficient space is required to maneuver, whether near the scene of a fire or while traveling to the emergency location. The street normally used to reach Parque Viva is approximately six meters wide along most of its length; as can be seen in this photograph, a bus and a passenger vehicle cannot travel normally at the same time; for them to pass, one of the two must stop and give way (…) There are also sections where the width narrows to almost four meters, meaning that a Nombre140 unit requires the entire available space to pass, as shown in the following photographs (…) Because of the street’s width, there are sections where passing maneuvers cannot be performed (…) As a result of the situations described above, several communities, including Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the Parque Viva facilities themselves, could be affected because the response time of Nombre140 units increases considerably; furthermore, when roads are blocked, access to the communities becomes impossible, placing lives and property at risk (…)” (see report and evidence).
• 28)Technical report No. CRC-GG-SO-OF-074-2022 of 11 de julio de 2022, signed by the Deputy Operations Manager of the Cruz Roja Costarricense and addressed to the Minister of Health in response to the request made through official letter MS-DM-5870-2022, stated the following: “(…) As a first-response institution, the Cruz Roja Costarricense has extensive experience providing services at mass events involving different activities and locations and has had to treat patients based on the activities conducted at such events; this is due to the number of people attending the various activities, which, depending on the event, may amount to several thousand people. (…) In the case of events held at Parque Viva, it is necessary to clarify that the Cruz Roja Costarricense does not provide coverage for those activities; instead, the companies organizing the event hire private ambulance companies that provide this type of service.

It should be noted that there are approximately 70 private companies in the country that provide prehospital patient transportation services (servicio prehospitalario de traslado de pacientes); accordingly, it is clarified that the several ambulances shown in videos circulating on social media in connection with emergency care at Parque Viva are not Cruz Roja ambulances. Accordingly, our recommendation within this Comité Asesor Técnico has historically been to emphasize the importance of establishing regulations governing mass events. We know that the Ministry of Health has the Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud and that the Ministry of Public Security has the Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. Nevertheless, approximately 6 years ago, it was suggested that the Maurer Algorithm, which is used in Germany, be adopted.

In general terms, based on the experience of the Cruz Roja Costarricense, any venue where mass events are held must have an entrance and an exit for all vehicles attending the events, allowing emergency vehicles to circulate properly, both to respond to incidents at the event venue and in surrounding areas, as well as routes permitting the mass evacuation of attendees should any threat be activated, and must have an updated Emergency Plan (Plan de Emergencias) providing for an adequate number of ambulances in proportion to event attendance (…)” (see report and evidence).

• 29)Through official letter No. 911-DI-2022-2202 of 11 de julio de 2022, the Director of the Sistema de Emergencias 9-1-1 sent the Minister of Health a report on incidents occurring in areas surrounding Parque Viva on certain specific dates, namely, 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (e.g., situations involving traffic problems, improperly parked vehicles, fights between individuals, an unconscious person, and a missing person, etc.) (see report and evidence).
• 30)Through official letter No. DM-2022-3121 of 11 de julio de 2022, the Minister of Public Works and Transportation informed the Minister of Health of the following: “(…) Regarding the situation arising from the temporary closure of Parque Viva subject to remedial measures (acciones remediales), the Ministry of Public Works and Transportation issues the following opinion, considering that: Parque Viva encompasses multiple land uses (usos de suelo) that may result in mass gatherings, understood as temporary events that bring together an unusually large number of people under crowded conditions in open and/or enclosed physical spaces whose site characteristics create a risk or threat scenario requiring preventive measures to control use of the space. Parque Viva has a 9000 m2 industrial building, which is estimated to attract 6593 vehicles based on three comparable events in Reino Unido (…) Parque Viva has a capacity of 20.000 people, and applying an occupancy rate of 3 people per vehicle (…) yields 6667 vehicles per hour.

It is estimated that the adjacent street has a maximum capacity of 800 vehicles per hour at level of service E, since it is a two-way road between 4 m and 6 m wide. IT IS RECOMMENDED: A maximum attendance of 2400 people at mass event (sic), based on the current condition of the access points and surrounding roads, in order to ensure an adequate flow of vehicles entering and leaving the site (…)” (see evidence).

• 31)On 12 de julio de 2022, technical report No. CRC-GG-OF-012-2022 was issued, signed by the General Manager of the Asociación Cruz Roja Costarricense—in follow-up to the statements made in the previous report No. CRC-GG-SO-OF-074-2022—informing the Minister of Health of the following: “(…) In the specific case addressed by this inquiry, it is known that the public roads in the community of La Guácima de Alajuela and surrounding areas are insufficient to allow our emergency units rapid access when responding to routine incidents, a situation that may worsen when mass events are held, since we are aware of situations in which a mere mechanical breakdown of a private vehicle substantially delays the entry of our ambulances. Historically, traffic congestion at various locations throughout the national territory has affected the response times of the different institutions when responding to emergencies.

This also occurs in La Guácima de Alajuela, where emergency-vehicle travel times have increased to varying degrees, causing delays ranging from 10 minutes to 30 minutes. In certain specific cases, the arrival or departure of our vehicles has taken even longer because of the number of vehicles parked along the sides of the public roads surrounding the event venue and even because of people walking on the public roads, requiring vehicles to travel more cautiously. In this particular case, the operational structure of the Benemérita Cruz Roja Costarricense has considered three response scenarios for purposes of analyzing the situation so that the authorities may make decisions within their respective jurisdictions. 1. Traffic accidents: When responding to a traffic accident, depending on its severity, various resources may be required to arrive, including ambulances, rescue trucks, and even the Cuerpo de Nombre140 de Costa Rica.

It should be noted that there may be cases in which patients are trapped as a result of the incident, requiring specialized rescue equipment to be brought to the scene as needed. In all cases, patients must receive immediate care because, in some instances, their lives may be in imminent danger. 2. Structural fires: When responding to structural fires, the Cuerpo de Nombre140 generally responds to extinguish the fire, while the Cruz Roja Costarricense goes to the scene to treat patients. Therefore, depending on the scale of the incident, the amount of resources deployed could be affected by the difficulty of accessing the facilities at risk and evacuating patients. Medical cases: Depending on the severity of the case, the patient must receive prompt care because delays in response times adversely affect the person’s prognosis and may endanger their life. For example, in the event of cardiorespiratory arrest, the patient should ideally be reached in less than 10 minutes.

Furthermore, depending on the circumstances, the Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV) at the scene may require assistance from another Advanced Life Support Unit (USAV), since this second ambulance has more highly trained personnel, more equipment, and therefore greater treatment capabilities, thereby giving the patient a better chance of a favorable health outcome. It should be noted that when two or more units are present at the incident scene, a large and safe space will be required so that rescuers can provide care (…)” (see report and evidence).

• 32)Through official letter No. MS-DM-5902-2022 of 12 de julio de 2022, the Minister of Health acknowledged receipt of technical reports No. CBCR-027150-2022-OPB-00741 from the Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 from the Cruz Roja Costarricense, No. 911-DI-2022-2202 from the Sistema de Emergencias 9-1-1, and No. DM-2022-3121 from the Ministry of Public Works and Transportation, and forwarded them to the Dirección Regional Rectoría de Salud Central Norte as a supplement to the provisions of official letter No. MS-DM-5838-2022 of 8 de julio de 2022 (see evidence).
• 33)Through official letter No. MS-DM-5945-2022 of 13 de julio de 2022, the Minister of Health forwarded technical report No. CRC-GG-OF-012-2022 from the Cruz Roja Costarricense to the Dirección Regional Rectoría de Salud Central Norte (see evidence).
• 34)At a press conference held on 13 de julio de 2022, Nombre138 Nombre01 stated the following regarding the road project proposed by Grupo Nación: “(…) Did you hear the blatant lie published by La Nación, claiming that it has been requesting access to ruta 27 for two years in order to fix Parque Viva? Oh no, well, if we score one goal, let’s score four more, because the permit they wanted to obtain covered four times the area. Aren’t they ashamed of bringing Dirección01 to a standstill and endangering the entire Occidente, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas? (…)” (see evidence).
• 35)On July 13, 2022, in the politics section of the newspaper La Nación, a news story was published under the headline “Mayor of Alajuela: Parque Viva received permit before urban expansion in La Guácima.” The content of this news story is as follows: “(…) Nombre50, mayor of Alajuela, stated that the traffic congestion occurring in La Guácima, Alajuela, is not caused solely by Parque Viva, but is also attributable to the district’s substantial residential growth and the new condominiums built in the area. “There has been very significant growth in the district of La Guácima which, together with the activities and the large number of people entering the district, clearly causes traffic congestion. “I am open to negotiating and putting the issue on the table; viable solutions must be developed for the district, and the problem should not be blamed on X or Y or generalized,” Nombre147 explained.

“We must look at the reality. The park was built almost ten years ago, and over these ten years there has been a substantial change in the urban development of the district of La Guácima; in other words, there are more people and more condominiums,” he added. Since 2014, 44 condominiums have been approved in the district, for example. The municipal official also said that, although the municipal government has invested nearly 1000 million in that district and construction will soon begin on a bridge leading to the community of San Antonio de Alajuela, that is insufficient and they need more resources for the entire canton. “The municipality has made some investments, but perhaps not enough. Why? Because, as a local government, we have limited resources and 14 districts to serve, with a network of more than 421 kilometers throughout the canton. For that network, a municipality such as Alajuela does not have sufficient resources, and all 14 districts of the canton must be served, not just one.

Improvements must be made; as mayor, I am aware of that,” Nombre147 stated. In September 2014, the Ministry of Public Works and Transportation (MOPT) approved Parque Viva’s roadway planning study and required that access routes to the site be built from the various roads leading to it and that vertical and horizontal signage be installed, all of which had to be completed one year later. During an inspection conducted by the Ministry in 2015, it was confirmed that the property had complied with the requirements. This Wednesday, Nombre138 Nombre51 stated at a press conference in Dirección06 that the permit should never have been granted and that the case file would be requested from the Municipality of Alajuela, while the intervention of the Ombudswoman for the Inhabitants, Nombre52, would also be sought. At that time, the current mayor was a council member and said in this regard: “The permit was granted under the authority of the municipal administration, which was the body competent to approve it; the case file contains permits from the Ministry of Health and many institutions (…)” (see evidence).

• 36)During an expanded district council session held on July 13, 2022, Nombre19, a council member and resident of La Guácima de Alajuela, addressed the issue relating to urban growth in that area. He noted that, from 2010 to date, 48 urban development projects had been approved in La Guácima, “(…) not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (…)”; this reflects a traffic situation inconsistent with roads designed thirty years ago. On that occasion, the council member expressly stated: “(…) There are traffic jams here every day, at seven in the Nombre142 and at five in the afternoon, with or without a concert. If an accident occurs today in central Guácima, La Guácima collapses because there is nowhere else to go. If an accident occurs today or a utility pole falls, as happened a few months ago (…) we have to take the long way around through San Miguel, with the risk that our vehicle may not be capable of making that trip (…) That is the reality of the district, which has serious roadway limitations.

When I joined the Alajuela Municipal Council, I promised that I would not vote for a single additional urban development project on the Municipal Council until the alternative routes were approved (…) As of today (…) the municipality tells me that it has no budget for alternative routes, so what does this mean? The situation remains as it is today, with or without Parque Viva, because there is no budget, there is no money for these alternative routes (…) I am honestly very pleased that what happened with Parque Viva occurred (…) because today the entire national press is discussing a problem that La Guácima faces every day. Because it was Parque Viva; if (…) a bus had overturned or anything else had happened, nobody would care—the problem would remain. And fortunately it was Parque Viva, because Parque Viva has the voice to say that there is a problem here, and it is a real problem: when there is an event, we also come to a standstill (…)” (see evidence).

• 37)By official letter No. MS- DRRSCN-1897-2022 dated July 14, 2022, the Regional Director of the Central North Health Authority forwarded the technical reports identified by the respondent Minister in official letter No. MS-DM-5902-2022 to the Director of the Alajuela 2 Health Governing Area (see evidence).
• 38)On July 14, 2022, representatives of Nombre03 S.A. filed with the Alajuela 2 Health Governing Area a motion for reconsideration (recurso de revocatoria) and a subsidiary appeal (apelación en subsidio) against the provisions of sanitary order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 dated July 8, 2022 (see evidence).
• 39)On July 14, 2022, the Office of the Comptroller General Nombre01 issued the document entitled Operational Audit Report on the Effectiveness and Efficiency of the Use of Cantonal Road Network Resources in the Municipality of Alajuela (report No. DFOE-LOC-IF-00014-2022). The conclusions section stated as follows: “(…) 3.1. Based on the established indicators and criteria, it was determined that it is not possible to guarantee that the management of the cantonal road network service under the responsibility of the Municipality of Alajuela is effective in fulfilling its purposes and objectives relating to mobility, road safety, and the resilience of this network, or that the allocated resources are used in accordance with the principle of efficiency. 3.2. In this regard, although road maintenance work has been performed primarily on the roadway surface, along with road-safety activities, significant limitations persist in the coverage and improvement of the roadway surface, the maintenance of other essential road-infrastructure structures (bridges and sidewalks), and the handling of road safety and the resilience of the cantonal road network, based on technical elements that reasonably ensure the effectiveness of municipal actions in these areas. 3.3.

With respect to efficiency, it was shown that the Municipality of Alajuela lacks the fundamental minimum elements and sound practices required to implement management aimed at complying with this principle; this situation reflects the need to foster an organizational culture that regards the use of data and management indicators as an essential mechanism for improving management in order to serve the public interest. 3.4. Finally, to meet the challenges facing our country, such as Sustainable Development Goal No. 11 (Sustainable Cities and Communities), and to advance the objective of leaving no one behind, it is necessary to broaden the perspective from which the cantonal road network is managed so that such management incorporates a comprehensive view of the problems and an inclusive and participatory vision of all populations living within the territory, with particular emphasis on populations experiencing the greatest disadvantages and vulnerability (…)” (see evidence).

• 40)For the year 2022, at least four events were being organized at Parque Viva (concerts with Nombre53, Nombre54, and Nombre55 in September, and a concert with Nombre56 on December 2). Through official letters No. MS-DRRSCN-DARSA2-1713-2022 of July 14, 2022 and MS-DRRSCN-DARSA2-1728-2022 of July 15, 2022, the Director of the Alajuela 2 Health Governing Area informed the legal representatives of the production companies organizing those events of the sanitary closure measure (medida sanitaria de cierre) issued against Parque Viva and, consequently, of the impossibility of issuing the requested occupancy-capacity certifications (certificaciones de aforos) (see evidence).
• 41)By official letter No. MS-DRRSCN-1904-2022 of July 15, 2022, the Regional Director of the Central North Health Authority forwarded technical report No. CRC-GG-OF-012-2022 from Cruz Roja Costarricense to the Director of the Alajuela 2 Health Governing Area (see evidence).
• 42)By official letter No. MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, the Director of the Alajuela 2 Health Governing Area informed the legal representative of Parque Viva that, as a follow-up to the provisions of the aforementioned sanitary order, technical reports No. CBCR-027150-2022-OPB-00741 from the Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 and No. CRC-GG-OF-012-2022 from Cruz Roja Costarricense, No. 911-DI-2022-2202 from the Sistema de Emergencias 9-1-1, and No. DM-2022-3121 from the Ministry of Public Works and Transportation were being forwarded. Additionally, this official letter expressly stated as follows: “(…) Once those documents were reviewed and analyzed in accordance with the provisions of the order in question, it was demonstrated that they indicate the existence of an evident problem affecting the response to emergencies (traffic accidents, structural fires, medical cases, among others) by First Response Agencies, both in the surrounding communities and for attendees at the mass-gathering events (eventos de concentración masiva) held at Parque Viva, due to traffic and access problems at the site.

Therefore, in accordance with the precautionary principle (principio precautorio) and in order to ensure compliance with Articles 21 and 50 of the Political Constitution, Articles 11, 152, 153, and 154 of the General Law of Public Administration, and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357, and 364 of the General Health Law, Sanitary Order MS-DRRSCN-DARSA2-OS-0386-2022 (sic) is hereby confirmed in all its terms and scope (…)” (see evidence).

• 43)The aforementioned official letter No. MS-DRRSCN-DARSA2-1724-2022 and several attachments were served on the representative of Parque Viva on July 15, 2022, at 11:48 hrs., by email (see evidence).
• 44)By official letter No. MS-DRRSCN-DARSA2-1755-2022 of July 20, 2022, the Director of the Alajuela 2 Health Governing Area corrected the number of the sanitary order identified in official letter No. MS-DRRSCN-DARSA2-1724-2022. This official letter was served on the legal representative of Parque Viva on July 20, 2022 (see evidence).
• 45)On an unspecified date, the authorities of the Ministry of Health ruled on the aforementioned motion for reconsideration and appeal, denying them (see report).
• 46)On July 29, 2022, the petitioners filed this amparo petition (amparo) (see filing).
• 47)By official letter No. PE-243-07-2022 of 29 de julio de 2022, the Executive President of INVU informed Nombre138 Nombre51 of the following findings, after a review had been conducted of the file for the so-called “Proyecto Viva” (Parque Viva), which was in the possession of the Municipalidad de Alajuela: “(…) 1. The land uses (usos de suelo) granted for the fairgrounds, amphitheater, hotel, and food services do not conform to the Regulatory Plan (Plan Regulador) approved in la Gaceta No. 182 of 19 de setiembre de 2004. 2. The property identified by cadastral plan (plano de catastro) A-2995065-2005 is located in an area designated as a ‘Green Zone’ (‘Zona Verde’) and not in a ‘Medium-Density Residential Subzone’ (‘Subzona Residencial de Mediana Densidad’), as stated in the land-use certificate (constancia del uso de suelo) issued by the Municipality and used as the basis for issuing the construction permits (permisos de Construcción).

The foregoing is based on the Zoning Map (Mapa de Zonificación) in effect when the land uses were requested, which has not been amended to date, since the Regulatory Plan has not been updated since its publication in 2004. 3. The environmental viability (viabilidad ambiental) granted by resolution 3083-2013 was issued for improvements to AUTÓDROMO LA GUÁCIMA. Nothing in the proceedings conducted before SETENA indicates at any time that the activity to be carried out fell within the operations of fairgrounds, precisely because the various permits were processed separately, which to some extent made it possible to omit the minimum requirements that should have been imposed to mitigate the externalities and effects arising from the operation of an activity with the known characteristics. 4. There is NO record that any Traffic Impact Study (Estudio de Impacto Vial) was submitted to MOPT or the Municipality to measure the impact of the vehicle traffic associated with the activities conducted at the site (construction of the event hall and amphitheater under APC proceeding 626867).

That study should have been required pursuant to Article 12.7 of the Plan Regulador del Cantón de Alajuela, which states verbatim: Article 12.7. Buildings five stories or more in height, or their equivalent in meters, as well as shopping centers, industrial facilities, bus terminals, or other facilities that generate mass gatherings, must additionally submit the following for final approval: 1. Traffic impact study. Study of access, traffic congestion, the capacity of roads adjacent to the property, and average daily and monthly traffic flows. 2. Infrastructure: study of supply and demand for existing infrastructure, the proposed infrastructure, and its connection to the existing infrastructure. By means of Official Letter PE-221-07-2022, inquiries were made to the Dirección General de Ingeniería de Tránsito (DGIT) and the Secretaria de Planificación Sectorial (SPS) of the Ministerio de Obras Públicas y Transportes (MOPT), respectively; those agencies stated that no study concerning this project had been received for evaluation. 5.

No improvements were required to the cantonal road network providing access to the complex covered by the various construction permits, not even half-road improvements. In this regard, the failure of the Municipalidad de Alajuela to apply Article 70 of the Ley de Planificación Urbana is notable, with respect to its authority to require special assessments (contribuciones especiales) given the project’s evident impact on the public cantonal road network. The technical basis for this requirement should have been a technical traffic impact study that considered the project’s specific characteristics. 6. Regarding the construction permits, the APC record indicates that 3 permits were approved: A. Infrastructure works for the Fairgrounds Complex (construction area 12608 ma.) Identificacion02 official letter MA-ACC-3B33-2014 dated 07 de mayo de 2014 B. Construction of a treatment plant (construction area 144m2) APC 634113, official letter MA-ACC-3835-2014 dated 07 de mayo de 2014.

C. Construction of the structure, building envelope, and enclosure of the Fairgrounds Complex (construction area 22.164m2) APC62ô867, official letter MA-ACC-5032-2014 dated 12 de Junio de 2014. The infrastructure works for the Fairgrounds Complex (construction area 12608 m2), processed under APC 655432 and approved through official letter MA-ACC-3833-2014 on 07 de mayo de 2014, were approved without confirmation of water availability (disponibilidad de agua), as evidenced by AYA Official Letter CCP-2013-304. Although there is a well, its concession was not granted until 18 de diciembre de 2014. Another important consideration, according to the documentation submitted, is that the project processed under code Identificacion01 did not have Nombre140’s authorization when it was approved. According to the compliance report (informe de cumplimiento) for the first review, several institutions had submitted observations; however, the second review containing the respective corrections cannot be located.

This statement is supported by Nombre140’s report, official letter CBCR-0018379-2014-lNB-00736 dated 16 de junio de 2014, and the project compliance report downloaded on 7 de Julio de 2022, as documented in the digital file provided. Despite this inconsistency, the Municipalidad de Alajuela approved the permit application. Nombre140 exempted project Identificacion02 from the requirement to install fire hydrants. This was done by official letter CBCR-0018379-2014-lNB-00736 dated 16 de junio de 2014, which states, in pertinent part: ‘the proposal presented (sic) in the plans to eliminate the installation of fire hydrants is accepted, given that the capacity of the 5.251,6 is insufficient to cover the flo/w of the hydrants.’ As indicated in the referenced official letter, Bomberos required corrections, but there is no record of them because they were not included in the file. In addition, you are hereby advised of several general formal observations identified during this process: The file submitted is neither foliated nor consecutively numbered in any manner that would allow the proceedings conducted to be maintained in chronological and sequential order and traced.

The file was submitted in separate parts, which made its review difficult because the development of the Project’s various permits and/or stages could not be traced. Although the certification issued by the Secretaria de Actas del Concejo Municipal indicates 70 folios in one place and 178 in another, the fact is that the documents submitted total 2172. Furthermore, the plans corresponding to the 3 proceedings conducted through the APC platform bear the download date 13/17/2022, suggesting that this documentation was not part of the file that the Municipality is required to maintain; otherwise, the download date should have coincided with the date on which those permits were processed, namely 21 de Diciembre de 2013. Finally, when the digital information was received, empty folders and incomplete information were found, which was noted in the acknowledgment-of-receipt letter returned to the Municipality (…)” (see evidence).

• 48)On 3 de agosto de 2022, the following was published on the official Facebook page of the Municipalidad de Alajuela: “(…) REGARDING THE PUBLICATIONS CONCERNING THE OPINION ISSUED BY INVU ON PARQUE VIVA, WHICH HAVE CIRCULATED IN VARIOUS MEDIA OUTLETS TODAY. Regarding the information that has circulated in various media outlets concerning the PARQUE VIVA project, based on a report issued by Instituto de Vivienda y Urbanismo, INVU, the first point that must be made is that the Municipalidad de Alajuela has not been notified of that report; therefore, our knowledge is limited to the publications made by those media outlets. Furthermore, these are assessments by that institution made without consulting this municipality. It is important to clarify several points. 1. LAND USE (USO DE SUELO). The zoning (zonificación) of the property Dirección07 was not modified because, under the applicable current Plan Regulador Urbano, the aforementioned property is located in an area designated as a green zone (zona verde), regulated by Art 56 of the Plan Regulador Urbano.

In its analysis, INVU overlooks the provisions of Article 60 of the Plan Regulador Urbano, which states that if, 5 years after publication of the Plan Regulador, the Municipality has not acquired these lands designated as green zones, they acquire the neighboring zoning designation that least adversely affects the user. That provision was applied in this case; as indicated in the land-use designations, this is a medium-density residential zone. Therefore, the project’s land-use designations are correct. 2. REGARDING ENVIRONMENTAL VIABILITY (VIABILIDAD AMBIENTAL), the resolution approving the environmental viability reviewed by the Municipalidad de Alajuela for processing the construction permit (permiso de construcción) for the Parque Viva Project is correct and describes the works in general terms. Those works match the plans submitted and duly approved beforehand by the other institutions and by the Colegio Federado de Ingenieros y Arquitectos, as recorded on the APC platform.

The project title—that is, the Nombre141 by which it is identified in the case file (expediente)—was what changed over time, which did not affect the nature of what was analyzed, much less the nature of the works (trade name). The fact that the company changed the project’s Nombre141 does not change the nature of the works. 3. REGARDING “THE LACK OF UNIFORMITY IN THE LAND-USE DESIGNATIONS,” the analysis was performed consistently and uniformly in every instance, under the principle of legality (principio de legalidad) and the principle that laws may not be derogated in individual cases (inderogabilidad singular de las leyes). The only thing that changed from 2014 onward and in the successive land-use designations was how the information was presented. A summary record (minuta) of the land-use designations was attached to the case file and may be reviewed to confirm the foregoing. 4. ROADWAY IMPACT (IMPACTO VIAL).

The Plan regulador urbano of Alajuela, in its article (sic) 12.7, requires submission of a roadway-impact study (estudio de impacto vial) for the project’s FINAL APPROVAL (sic), not for the issuance of land-use designations; in other words, it applies to the construction permit. The requirements imposed by the Municipality for this or any other project may be reviewed in relation to this matter and are based on the applicable regulations. For final approval of the construction permit (sic), this local government reviews the environmental viability granted by SETENA, since that entity, as part of its analysis, always verifies the roadway impact of new projects. According to the review of the SETENA case file, that entity deemed the information presented in the plans sufficient and granted the corresponding approval on that basis. Accordingly, the provisions of Ley 8220, as amended, and its Reglamento were observed, and, in adherence to the principle of respect for jurisdictional authority (principio de respeto de competencias), SETENA’s opinion was respected.

It is also important to recall that the project duly obtained approval of the Estudio de Impacto Vial from the Dirección de Ingeniería de Tránsito of MOPT through resolution N° DGIT-ED-5935-2014. 5. RECORDS CONCERNING THE CONSTRUCTION PROCESS (ACTAS SOBRE PROCESO CONSTRUCTIVO). If the final permit was granted, that means that any situation that may have been reported was corrected. 6. REGARDING THE NOTATIONS MADE BY OTHER INSTITUTIONS, the Municipalidad de Alajuela does not perform the duties of other institutions, which may review the case file and conduct the corresponding field inspections to verify compliance with their requirements. In any event, it is important to note that, as shown in the case file, each notation was remedied by the corresponding institution, resulting (sic) in approval by CFIA. According to the case file, contract OC626867, dated 13-11-2013, establishes that “the project is approved after the professional remedied the institutional observations.” In conclusion, through the Actividad Control Constructivo, this local government is fully willing to clarify any questions that may arise regarding this project, and we reaffirm that all of our actions have been consistent with and compliant with the regulations governing this matter (…)” (see evidence).

• 49)The roadway project proposed by Parque Viva (construction of four lanes connecting that venue to Dirección01) has not been approved to date (the record).

B. OTHER RELEVANT FACTS:

• 1)Diario La Nación published several reports concerning the then-presidential candidate Nombre01 Nombre15, relating, among other matters, to the sanctions imposed on him at Banco Mundial for sexual harassment, criticism of his proposal to govern through referendums, and the parallel structures used to finance his party’s political campaign. The report concerning sexual harassment was published on 30 de agosto de 2021, and several related reports were subsequently published on 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, and 1° y 25 de abril de 2022. A report concerning the impropriety of governing through referendums was published on 13 de febrero de 2022. Reports concerning the financing of the political campaign of the current Nombre138 were published by that media outlet, among other dates, on 5 de marzo y 29 de marzo de 2022 (search conducted on the digital outlet La Nación, www.nación.com).
• 2)On 29 de enero de 2022, the then-presidential candidate Nombre15 made the following statement before a group of supporters: “(…) We are a tsunami, and yes, we are going to cause destruction. We are going to destroy the corrupt structures of La Nación and Canal 7. Listen to me, Nombre16; listen to me, you other one (...) Nombre17; listen to me, Nombre18. Here we are. Keep making us invisible when it comes to what is new and good, and keep making defamatory accusations about what is bad, because you no longer install presidents in Costa Rica (…)” (see evidence).
• 3)On 30 de enero de 2022, at the campaign’s closing event (for the first round of voting), presidential candidate Nombre51 publicly stated the following: “(…) we went from being the most egalitarian society in América Latina to one of the most unequal in the world (…) to make (…) those who control those media outlets of disinformation, defamation, and lies even wealthier (…) we said it; we said that the house had to be cleaned, and they became frightened because, at first, who cared about Nombre51? nobody (…) the very day Nombre57 announced his candidacy, they began spewing poison, hatred, lies, and slander; that was when (…) they began to tremble, and that is why they do it (…) because of this tsunami that will sweep them away like garbage from the house (…) ink, not blood, but it will be no less historically significant (…) because here we are telling the same people as always: the party is over for you; the party is over for you (…)” (search conducted on the digital outlet La Nación, www.nación.com).
• 4)On 6 de febrero de 2022, when casting his vote, the then-candidate Nombre58 expressly stated the following to the media outlet AM Prensa: “(…) I did not say that the press was villainous. In Costa Rica there is a Nombre148 press (…) because there are media outlets that lie (…) that serve powerful groups, which have devoted themselves to removing and installing presidents, and that is over for them (…)”. In addition, in response to a question asked by the journalist, he specifically clarified that he was referring to “(…) La Nación, Canal 7, CRhoy (…)” and maintained that he was saying so “(…) transparently and clearly (…)” (see evidence).
• 5)On 7 de febrero de 2022, the media outlet Columbia published on its digital platform a report titled “Nombre51: There are three major media outlets serving interests that would be adversely affected by my administration.” The report recorded the following statements made by Nombre51: “(…) In Costa Rica—hear me loud and clear—there is a bought-and-sold Nombre148 press; not all the press is like that. There are honest people in this country—the vast majority—but there are also dishonest people, and the same is true of the press (…) in Costa Rica (…) there are two or three very important media outlets serving interests that would be severely affected under a Nombre51 administration and that have done everything possible to subject us to political execution and lynching (…)” (search conducted on the digital outlet Columbia, www.columbia.co.cr).
• 6)On 6 de julio de 2022, during a press conference, a journalist from the media outlet El Guardián CR asked Nombre138 Nombre01 for his opinion regarding the Caja Costarricense de Seguro Social and the request made to Nombre02 concerning the bonds issued by Grupo Nación. In response, the president stated that there was indeed a very serious issue concerning bonds issued by La Nación that previous administrations had purchased. He also indicated that he was concerned about that media outlet’s ability to pay (which, in his view, “appears very, very limited”), due to certain accounting actions and the diversion of assets that reduce the likelihood that the people of Costa Rica will be able to recover those substantial resources. After Nombre59, Nombre138 Ejecutivo of the CCSS, offered his opinion on the matter, Nombre138 Nombre01 expressly stated the following: “(…) La Nación’s profitability is in free fall, and that means it is sustaining constant, constant, constant losses.

And so one wonders: if that trend of losses continues—I don’t know, perhaps they have a magic wand and will manage to improve their cash flow (…) what happens if La Nación’s cash flow is strangled and the property is unavailable because it is somewhere else? That is the question, and I believe don Nombre149 explained it very well in technical terms, but, well, he has an obligation to do that. And I also asked him about it; he was already doing it when I called to ask him. He told me, no, we are already doing it, and the inquiry is underway (…)” (see evidence).

• 7)On July 7, 2022, the following article was published in the politics section of the newspaper La Nación: “Nombre139 attacks La Nación with distorted data,” which, in turn, stated the following: “(…) Nombre04 confirms that he ordered the head of the CCSS to request information from Nombre02 concerning the company’s bonds (…) On Wednesday, Nombre138 Nombre51 attacked the newspaper La Nación using distorted data concerning the bonds issued by La Nación S. Nombre05. on the securities market between 2013 and 2014. The Caja Costarricense de Seguro Social (CCSS) and its pension-fund operator acquired part of the offering. Those entities invested of their own accord in order to earn interest. They have always received the returns on time, as Nombre59, executive Nombre138 of the CCSS, himself acknowledged. The current rate is 8%. The CCSS invested ¢2.950 million from the Invalidez, Vejez y Muerte (IVM) pension scheme, while the supplementary pension-fund operator acquired another ¢750 million.

At the time of the offering, La Nación S. A. did not know who had acquired the securities, since the transaction is conducted through a brokerage firm, as required by securities-market rules. Nevertheless, Nombre139 used the Wednesday press conference, held after the Consejo de Gobierno meeting, to publicly cast doubt on whether the company would be able to repay the principal on the bonds that have not yet matured, which was planned from the outset for the years 2024 and 2025. Hours before the press conference, reliable sources informed La Nación that the President had an attack on this news outlet on his agenda. He would address it in response to a question that one of the journalists would ask. Ultimately, the question was asked by Nombre60, from the website El Guardián. Nombre139 then nodded: ‘Yes, we have a very serious issue with the bonds that previous governments purchased, which were issued by La Nación and financed from two sources: your mother’s, your grandmother’s, your uncle’s pension, from the IVM; and the pensions of Caja employees, through the Fondo de Retiro de Empleados (FRE),’ the President began.

In this regard, Nombre37, executive director of Grupo Nación, said that he did not understand the concern, since interest had been paid on time: two bond issues had already been repaid in full, the funds were available to repay a third, and work was under way to secure the funds for the last one, which matures in three years. He also stated that the company’s equity far exceeds the value of the bonds. Nombre150 explained that the company’s current debt-to-equity ratio is 1 (debt) to 2 (equity) and that, by 2024, it will be 1 to 4 after the bonds maturing that year are repaid. Nombre139 gave the order to Nombre59. Nombre139 confirmed that he himself was the one who asked the Nombre138 of the CCSS to submit questions to Nombre02 in order to review the media company’s financial position. ‘I asked him to fulfill his obligation to do that (...) and, well, he told me he was already doing it,’ the President said.

During portions of his remarks, the Nombre138 stared fixedly at this news outlet’s journalist responsible for covering Casa Presidencial. The ‘La Nación’ bonds. Between 2013 and 2014, La Nación S.A. conducted four bond issues, through transactions regulated by the Superintendencia General de Valores (Sugeval), totaling ¢39.000 million, primarily to finance the Parque Viva project in La Guácima de Alajuela. Various investors decided to accept the offer. Two issues, the one from 2013 and one from 2014, have already been repaid in full, for a total of ¢18.000 million. As for the other two issues, the company already has the ¢10.000 million needed to repay the one maturing in 2024. The CCSS, or anyone capable of reading financial statements, can easily verify this because the information is public due to the company’s participation in the Bolsa Nacional de Valores. To find it, one need only visit the La Nación website, then go to ‘shareholder information,’ followed by ‘financial information,’ and finally select the statement of financial position.

Of the amount needed to repay the final issue, which matures in 2025, ¢9.015 million remains to be secured. According to Nombre150, the company therefore already has liquid resources sufficient to cover 72% of the outstanding obligation, with three years remaining. Nevertheless, Nombre51 continued his response: ‘We are very concerned about the repayment capacity that this news outlet may have, which appears very, very limited, and, second, about certain accounting actions and the diversion of assets or contribution of assets to other entities, which weaken the likelihood that the people of Costa Rica, from our perspective, will be able to recover these substantial resources.’ Nombre139’s unfounded insinuations—after he promised during the election campaign to harm the company because of its reporting—refer to the business group’s decision to pursue a real-estate project on a property located in Llorente de Tibás, as the company had publicly disclosed in 2020 through a material event notice (hecho relevante) reported to Sugeval.

Nombre150 explained that the venture was being prepared as a joint development using a trust (fideicomiso) structure with the company Portafolio Inmobiliario, which has completed enormous and successful projects such as Dirección08 or Escazú Village. Under that business model, La Nación S. A. contributes the land and the developer contributes its real-estate development expertise. ‘We have been evaluating the project for many years and, in 2020, we finally managed to sign the trust agreement, which is like marking out the field or establishing the ground rules. In fact, we have not transferred our properties to the trust. Our agreement with Portafolio Inmobiliario is that this will not be done until we have all the permits and are ready to begin development,’ Nombre150 stated. ‘Now, if that is the concern, we have many properties. We are talking about five hectares in Tibás, but we have 35 hectares in La Guácima and, on those 35 hectares, we have buildings worth $30 million.

We are talking about the remaining debt, that 28%, currently amounting to between $8 million and $9 million, depending on the exchange rate; therefore, we have more than sufficient collateral,’ the executive director added. Payments are current. At the press conference, after giving his initial response on this matter, the Nombre138 Nombre139 yielded the podium to Nombre59, executive Nombre138 of the CCSS, so that he could elaborate on the issue. The official stated that they had submitted an inquiry to Nombre02 to learn the true financial position of Grupo Nación with respect to meeting the investment repayments scheduled for 2024 and 2025. Unlike the President, Nombre151 stated: ‘We are in no way indicating, a priori, that they will be unable to repay; we simply want to know how they will do so.’ He also emphasized that the interest payments were current. Years earlier, in 2008, La Nación S. A. offered another two issues totaling ¢5.700 million, which were repaid in full in 2015 and 2017.

In interest alone, the company paid investors ¢13.130 million on the issues already repaid and has paid ¢14.050 million on those maturing in 2024 and 2025. Nombre139 to the Nombre138 of the Caja: You are very diplomatic. As soon as Nombre151 finished speaking, Nombre139 returned to the podium and said: ‘Let us see, don Nombre149 is very diplomatic.’ He immediately continued explaining how, in his view, repayment of the investments was at risk. Each time the President provided a piece of information, he asked the head of the CCSS whether it was publicly available. During his remarks, Nombre151 stated that ‘we at the Caja are not working with private information; we are working with public information and, on the basis of that public information, we cannot determine the effect of this trust.’ Nombre139 continued: ‘La Nación’s profitability is public, correct? Yes, La Nación’s profitability is public; it is in free fall, and that means it is incurring constant, constant, constant losses.

And then one wonders—I do not know—perhaps they have a magic wand and will manage to increase cash flow. What happens then? There is a duty to protect your grandmother’s pension. What happens if La Nación’s cash flow is strangled and the property is not there because it is somewhere else… that is the question.’ The properties that may eventually be transferred to the trust to develop the project will not vanish into thin air. The company’s interest in the trust will be included in its assets and will help secure its obligations. Moreover, 1.5 valuable hectares will not be transferred to the trust because the newsroom and the industrial production area will continue operating there. All of this is without even mentioning the 35 hectares in La Guácima, with buildings valued at $30 million that, by themselves, represent several times the entire amount maturing in 2025, not merely the portion of that maturity corresponding to the bonds purchased by the Caja.

Regarding the results, Nombre150 stated: ‘It is said that La Nación is merely accumulating losses. It is very important to distinguish between an accounting loss and cash-flow generation. We are accumulating accounting losses, that is true, but we are generating cash flow. This means that, between operations and financial investments, we are generating sufficient cash flow to repay the debt, pay all interest, fund all investments and, in addition, save to meet future maturities. That can be seen in our financial statements, which are public.’ The executive director of Grupo Nación recalled that Parque Viva resumed operations in March 2022 after going two years without events because of the coronavirus pandemic. He also recalled that the public-health crisis caused widespread disruption throughout the world. Despite this, he emphasized, the company managed to generate cash flow. ‘This year’s figures will be much better than last year’s, and that will be the trend from now through 2025,’ he stated.

Nombre150 concluded by inviting the CCSS to review all the data directly and ask the company’s representatives any questions it considered appropriate. La Nación regularly receives other investors and would be delighted to speak with officials from the Caja (…)” (consultation of the digital news outlet La Nación www.nación.com).

• 8)On July 20, 2022, during a press conference, the President cited, among the reasons for canceling the electric-train plan, the existence of a branch line passing through Parque Viva. Specifically, on that occasion, he stated the following: “(…) We understand that the greater metropolitan area needs a transportation solution. When you see that they had planned a 150.000-million-colón branch line to Parque Viva for this little train, you become even more concerned. So everything taken together tells us, ‘this will not proceed’ (…)” (see evidence).
• 9)On August 3, 2022, during a press conference, Nombre138 Nombre01 compared members of the press to rats and “other species of fauna.” Specifically, on that occasion, addressing the Ministra de Salud, that authority stated the following: “(…) I can see that the media have affected you, and I understand, but I am going to be very frank with you: those media outlets and others of their species—because they are a species (…) people talk about the press; that is like talking about fauna: there are rhinoceroses, there are raccoons, there are rats, there are birds (…) I do not believe the species of press you are talking about (…) do not let them bother you; let them continue sinking (…)” (consultation of the digital news outlet CRhoy www.crhoy.com).

III. UNPROVEN FACTS

The following facts relevant to deciding this amparo proceeding (recurso de amparo) are deemed unproven:

• 1)That, before Parque Viva began operations, its representatives had been required to submit and implement a plan to remedy the traffic-related problems now attributed to it (e.g., to construct—outside the premises—entrance access points or some other, more significant infrastructure) (the case record (los autos)).
• 2)That the representatives of Parque Viva had been notified of the provisions of official letters No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 from the Alajuela Public Force Directorate and No. PE- 243-07-2022 from the Executive Presidency of INVU (the case record).

IV. ON FREEDOM OF EXPRESSION

Freedom of expression is one of the pillars upon which the rule of law (Estado de Derecho) is founded and encompasses both the fundamental and universal guarantee of expressing one’s own thoughts or opinions and that of learning the thoughts or opinions of others. In other words, it refers to the freedom to seek, receive, and impart information and ideas, whether orally or in writing. Freedom of expression is therefore characterized as a right with two dimensions: an individual dimension, consisting of each person’s right to seek information and express their own thoughts, ideas, and information; and a collective or social dimension, consisting of society’s right to seek and receive any information, to learn the thoughts, ideas, and information of others, and to be well informed. Regarding this dual dimension of the freedom under consideration, the Inter-American Court of Human Rights (hereinafter, the IACtHR), in the case of Nombre61 v. the State of Costa Rica (judgment of 2 de julio de 2004), held as follows:

“(…) 109. In this regard, the Court has indicated that the first dimension of freedom of expression ‘is not exhausted in the theoretical recognition of the right to speak or write, but also encompasses, inseparably, the right to use any appropriate means to disseminate thought and convey it to the greatest possible number of recipients.’ In this regard, the expression and dissemination of thoughts and ideas are indivisible, such that a restriction on the possibilities for dissemination directly represents, to the same extent, a limitation on the right to express oneself freely.

110. With respect to the second dimension of the right to freedom of expression, namely, the social dimension, it must be noted that freedom of expression is a means for the exchange of ideas and information among persons; it encompasses their right to try to communicate their viewpoints to others, but it also entails everyone’s right to learn of opinions, accounts, and news conveyed by third parties. For the ordinary citizen, knowing the opinions of others or the information available to them is as important as the right to disseminate one’s own.

111. This Court has affirmed that both dimensions are equally important and must be fully guaranteed simultaneously in order to give full effect to the right to freedom of expression under the terms set forth in Article 13 of the Convention (…)”.

For its part, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework Regarding the Right to Freedom of Expression, diciembre 2009) referred to this right in the following terms:

“(…) it is one of the individual rights that most clearly reflects the virtue that accompanies—and characterizes—human beings: the unique and precious virtue of thinking about the world from our own perspective and communicating with others in order to construct, through a deliberative process, not only the model of life that each person has the right to adopt, but also the model of society in which we wish to live. All creative potential in art, science, technology, politics—in short, our entire individual and collective creative capacity—depends fundamentally on the right to freedom of expression being respected and promoted in all its dimensions. It is therefore an individual right without which the first and most important of our freedoms would be denied: the right to think for ourselves and to share our thoughts with others (…)”.

Our Political Constitution guarantees freedom of expression and thought in Articles 28 and 29, which state as follows:

“ARTICLE 28.- No one may be disturbed or persecuted for expressing their opinions or for any act that does not violate the law.

Private actions that do not harm public morals or public order, or that do not harm third parties, are beyond the reach of the law.

Nevertheless, clergy or laypersons may not engage in political propaganda in any manner by invoking religious motives or using religious beliefs as a means.” “ARTICLE 29.- Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; however, they shall be liable for any abuses committed in the exercise of this right, in the cases and manner established by law.” At the international level, freedom of expression has been enshrined in various instruments. With regard to the inter-American system, the International Covenant on Civil and Political Rights provides as follows in Article 19:

“1. No one shall be subjected to harassment on account of their opinions.

2. Everyone has the right to freedom of expression; this right includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other medium of their choice.

3. The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, which must, however, be expressly established by law and be necessary to:

• a)Ensure respect for the rights or reputations of others; b) Protect national security, public order, or public health or morals.” The Universal Declaration of Human Rights also states in Article 19:

“Everyone has the right to freedom of opinion and expression; this right includes the right not to be harassed because of one’s opinions, the right to seek and receive information and opinions, and the right to impart them, regardless of frontiers, through any medium of expression.” For its part, the American Convention on Human Rights states as follows in Article 13:

“1. Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other medium of their choice.

2. The exercise of the right provided for in the preceding paragraph may not be subject to prior censorship but shall be subject to subsequent liability, which must be expressly established by law and be necessary to ensure:

• a)respect for the rights or reputations of others; or b) the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted through indirect methods or means, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means intended to impede the communication and circulation of ideas and opinions.

4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of children and adolescents, without prejudice to the provisions of paragraph 2.

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitutes incitement to violence or any similar illegal action against any person or group of persons, on any grounds whatsoever, including race, color, religion, language, or national origin, shall be prohibited by law.” Article IV of the American Declaration of the Rights and Duties of Man states as follows:

“Every person has the right to freedom of investigation, opinion, expression, and dissemination of thought by any medium.” International soft-law instruments have likewise safeguarded this freedom. Thus, the Declaration of Chapultepec (adopted by the Hemispheric Conference on Freedom of Expression held in México, Nombre62. on 11 de marzo de 1994) states in its first principle:

“1. No people or society can be free without freedom of expression and of the press. The exercise of this freedom is not a concession granted by the authorities; it is an inalienable right of the people.” For its part, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in octubre de 2000, during its 108th regular session) provides as follows:

“1. Freedom of expression, in all its forms and manifestations, is a fundamental and inalienable right inherent to all persons. It is also an indispensable requirement for the very existence of a democratic society.” In another context, within the European legal order, the European Convention on Human Rights is noteworthy; Article 10 thereof specifies that this right belongs to everyone, in the following terms:

“Freedom of expression 1. Everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or impart information or ideas without interference by public authorities and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and constitute measures necessary in a democratic society, in the interests of national security, territorial integrity, or public safety; for the maintenance of public order and the prevention of crime; for the protection of health or morals; for the protection of the reputation or rights of others; for preventing the disclosure of confidential information; or for maintaining the authority and impartiality of the judiciary.” Likewise, the Charter of Fundamental Rights of the European Union states as follows in Article 11:

“Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or impart information or ideas without interference by public authorities and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.” The right to freedom of expression has been extensively developed in Costa Rican constitutional case law (jurisprudencia constitucional). Thus, in Judgment No. 8196-2000 issued at 15:08 hrs. on 13 de septiembre de 2000, the Constitutional Court referred to the various forms in which freedom of expression may be manifested, in the following terms:

“(…) IV.- Freedom of Expression (Libertad de Expresión). Legal scholarship characterizes freedom of expression as a freedom that is a prerequisite for the exercise of other freedoms, that legitimizes the functioning of the democratic system and the effectiveness of its institutions, and that legally takes a plurality of forms. Its clearest connection is with freedom of thought (libertad de pensamiento), which is the necessary and indispensable precondition for the existence of freedom of expression. In exercising both freedoms, individuals may choose or formulate the answers they intend to give to all the questions posed by the conduct of their lives in society, shape their actions in accordance with those answers, and communicate to others what they consider to be true, without prior censorship (censura previa). The scope of these freedoms is very broad, as it encompasses individuals’ statements concerning politics, religion, ethics, technology, science, art, economics, etc. Freedom of expression, therefore, entails the possibility for persons to convey their thoughts (ideas, volitions, feelings), and encompasses freedom of artistic or literary creation, freedom of speech, freedom of cinematographic expression, and also statements disseminated through the print media, radio, and television, insofar as these are means for the dissemination of ideas.

Likewise, freedom of expression gives rise to the right to impart and receive information and the right to communicate for various purposes, whether economic, political, recreational, professional, etc., without the imposition of unreasonable restrictive measures. Freedom of expression protects not only the individual in isolation but also relationships among members of society, and it is therefore of great significance, since it contributes to the formation of public opinion. It is also a prerequisite for freedom of the press (libertad de prensa) and freedom of information (libertad de información), since freedom of expression historically gave rise, in succession, to freedom of the press (or of periodical writings addressed to the general public) and freedom of information, which is the term now used for freedom of expression as exercised through the mass media. Freedom of information thus encompasses the written, spoken, and audiovisual press and, by its nature, is related to the right to report, the right to criticize, the press industry or trade, and the phenomenon of advertising.

This aspect has acquired considerable importance in recent decades because, owing to the high cost of establishing and maintaining mass media outlets, privately owned outlets can survive only through the intensive use of advertising. There is also the phenomenon of the social right to information (derecho social a la información), which resides precisely in the community and in each of its members and enables them to adjust their conduct in accordance with the reasons and sentiments suggested by that information when making decisions; at the same time, it performs an integrative function by unifying a multitude of individual opinions into a broad current of opinion, thereby fostering social integration (…)”. (Emphasis not in the original).

Likewise, in that same ruling, the Constitutional Chamber (Sala Constitucional) addressed the prohibition of prior censorship, as well as the limits to which the freedom under consideration is subject:

“(…) V.- One of the principal safeguards protecting freedom of expression is the prohibition of prior censorship, meaning that any review must occur after the fact. This Chamber understands prior censorship to mean any control, examination, or permission to which a publication, text, or opinion is subjected before it is communicated to the public, for the purpose of exercising preventive control over statements made through a mass medium, whether radio, television, or print. This concept is enshrined not only in Article 29 of our Political Constitution (Constitución Política), but also in the Pacto de San José, Article 13, paragraph 2 of which provides that the exercise of freedom of expression may not be subject to prior censorship, but only to subsequent liability (responsabilidades ulteriores), which must be expressly established by law and necessary to ensure either respect for the rights or reputations of others or the protection of national security, public order, or public health or morals. Article 29 of the Political Constitution enshrines what some legal scholars characterize as freedom of the press, while others refer to it as freedom of information, and provides:

"Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; however, they shall be liable for any abuses committed in the exercise of this right, in the cases and manner established by law." The Chamber addressed this matter in Judgment No. 1292-90, issued at the hours of del de mil novecientos noventa, and stated:

"The freedom of expression contained in Article 29 of our Constitution permits thoughts to be communicated orally or in writing and published without prior censorship, a guarantee reinforced by Article 28 of the same body of law, which prohibits persecution for exercising that freedom. Nevertheless, like every right, that freedom is not absolute and has limits, such that any abuse thereof will render its author liable under the legislation governing the matter." (…)

That said, despite the broad freedom enjoyed by individuals to form opinions based on personal criteria and, in turn, to communicate them fully, it should not be assumed that the exercise of these freedoms is unlimited, since freedom of expression, like all other public freedoms (libertades públicas), is not unrestricted: its limits are established by the Constitutional Order (Orden Constitucional) itself. This Chamber so held in Judgment N° 3173-93, stating: “II.- Each person’s fundamental rights (derechos fundamentales) must coexist with each and every fundamental right of others; therefore, for the sake of coexistence, it is often necessary to restrict the exercise of those rights and freedoms, although only to the precise extent necessary for other persons to enjoy them under equal conditions. However, the principle of the coexistence of public freedoms—the rights of third parties—is not the only legitimate basis for imposing limitations upon them; the concepts of "morality," conceived as the set of fundamental principles and beliefs prevailing in society, the violation of which gravely offends its members generally, and "public order" also serve as factors justifying limitations on fundamental rights.

VI- This Chamber is not unaware of the difficulty of defining the concept of public order unequivocally, nor of the fact that this concept may be used both to affirm individual rights against public authority and to justify limitations on rights in Nombre141 of collective interests. It does not refer solely to maintaining material order in the streets, but also to maintaining a certain legal and moral order, such that it consists of a minimum set of conditions for a suitable and proper social life. Its foundations are the security of persons and property, public health, and tranquility.” Likewise, in Judgment N° 3550-92 of dieciséis horas de veinticuatro de noviembre de mil novecientos noventa y dos, this Court elaborated upon legitimate limitations on public freedoms and addressed the principle that restrictions must be established by statute (principio de reserva de ley), emphasizing that "only through a formal statute, enacted by the Legislative Branch pursuant to the procedure prescribed by the Constitution for the enactment of laws, may fundamental rights and freedoms be regulated and, where appropriate, restricted—all, of course, insofar as their nature and legal regime permit and within the applicable constitutional limitations (…)”. Emphasis not in the original).

Likewise, more recently, in Voto No. 9512-2020 at 13:02 hrs. on 22 de mayo de 2022, this Court held as follows:

“(…) V.- ON FREEDOM OF EXPRESSION AND THE LIMITS THAT MAY BE IMPOSED.- This Court has understood freedom of expression and information as set forth in Judgment No. 8109-98 at 14:21 hours on 13 de noviembre de 1998, which stated as follows: “...IV.- The Right to Information (Derecho de Información) is the right that enables all persons to receive sufficiently broad information about particular events and currents of thought and, on that basis, to choose and form their own opinions. This is achieved through two different means: the objective presentation of events and the pluralism of ideological currents. Likewise, Freedom of Expression and Thought (Libertad de Expresión y de Pensamiento) constitutes a fundamental right that enables individuals, within a broad sphere of freedom, to formulate personal criteria regarding what they consider appropriate or inappropriate in responding to particular situations, while also allowing them to communicate the outcome of their ideological reasoning without prior censorship.

This right is of great significance because it contributes to the formation of public opinion through the intellectual contributions of individuals who express already established opinions or concepts or criticize them. The sphere of freedom is very broad, encompassing all statements made by individuals concerning politics, religion, ethics, technology, science, art, economics, etc.; it therefore follows that the exercise of Freedom of Expression and Freedom of Thought excludes prior censorship, with any existing review occurring after the fact and concerning excesses involving the abuse of those freedoms, except for matters deemed to be public performances (espectáculos públicos).” In addition, the same judgment stated: “... Freedom of expression forms part of freedom of information and, under the rule of law (Estado de Derecho), entails the absence of control by public authorities and administrative bodies when that right is exercised.

This means that no authorization is required to publish and that prior censorship may not be exercised, except when health, national security, morality, and public decency are at stake, as in the case of public performances. The exercise of freedom of expression cannot be unlimited because, if it were, the media or any legal person could be used to spread falsehoods, defame others, or promote any kind of disorder or scandal. Freedom of information therefore carries an implicit limit that functions as a form of self-restraint for citizens exercising that right, in the sense that if they commit an abuse, they will be liable for it in the cases and manner established by law. Hence, our legal system contains criminal offenses such as insult (injuria), calumny (calumnia), and defamation (difamación), which may result from an abuse in the exercise of the right to information. (…)

In its judgment of 2 de julio de 2004, the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos), in the case of Nombre63 against the State of Costa Rica, stated with respect to freedom of expression that it is a means for the exchange of ideas and information among persons; it encompasses their right to attempt to communicate their viewpoints to others, but also entails everyone’s right to learn of opinions, accounts, and news conveyed by third parties. For ordinary citizens, knowing the opinions of others or the information available to them is as important as the right to disseminate their own. (…)

Now then, freedom of thought and expression in a democratic society is an issue that, as already mentioned above, has been addressed in the American Convention, specifically in Article 13.2 thereof, which provides for the possibility of establishing restrictions on freedom of expression.

The case law (jurisprudencia) of the Inter-American Court of Human Rights has stated that, through the imposition of subsequent liability (responsabilidades ulteriores) for the abusive exercise of the right to freedom of thought and expression, the full scope of those rights must in no way be limited beyond what is strictly necessary.

It has been stated that the lawfulness of restrictions on freedom of expression based on Article 13.2 of the American Convention will depend on whether they are aimed at satisfying an imperative public interest; accordingly, the restriction that limits the protected right to the least extent must be chosen.

Furthermore, for such restrictions to be justified, they must be weighed against the social need for the full enjoyment of the right and must not limit the protected right beyond what is strictly necessary. In other words, the restriction must be proportionate to the interest that justifies it and closely tailored to achieving that objective, interfering as little as possible with the effective exercise of the right to freedom of expression and information (see, to this effect, Advisory Opinion OC-5/85). (…)”. (Emphasis not in the original).

For its part, the Inter-American Court of Human Rights, in the case of Nombre64 et al. v. Costa Rica (judgment of 23 May 2022), stated the following:

“(…) b.3 Permissible restrictions on freedom of expression and the imposition of subsequent liability in cases involving harm to honor and dignity in matters of public interest 71. The Court recalls that, as a general rule, the right to freedom of expression may not be subject to prior censorship (censura previa), but may, in any event, give rise to subsequent liability in highly exceptional cases and subject to compliance with a series of strict requirements. Thus, Article 13.2 of the American Convention establishes that subsequent liability arising from the exercise of freedom of expression must concurrently meet the following requirements: (i) it must be previously established by law, in both the formal and substantive sense; (ii) it must serve an objective permitted by the American Convention; and (iii) it must be necessary in a democratic society (for which purpose it must meet the requirements of suitability, necessity, and proportionality).

72. With regard to strict legality (estricta legalidad), the Court has established that restrictions must be previously prescribed by law as a means of ensuring that they are not left to the discretion of public authorities. To this end, the statutory definition of the conduct (tipificación de la conducta) must be clear and precise, particularly when criminal, rather than civil, convictions are involved. The permitted or legitimate aims are set forth in the aforementioned Article 13.2 and are: (a) respect for the rights or reputations of others, or (b) the protection of national security, public order, or public health or morals. Restrictions on freedom of expression must also be suitable, that is, effectively conducive to achieving the legitimately permitted aim. With respect to the necessity analysis, the Court has held that, for a restriction on freedom of expression to be compatible with the American Convention, it must be necessary in a democratic society, with “necessary” being understood to mean the existence of a compelling social need that justifies the restriction.

In this regard, the Court must examine the existing alternatives for achieving the legitimate aim pursued and determine their greater or lesser harmful impact. Finally, concerning the proportionality of the measure, the Court has understood that restrictions imposed on the right to freedom of expression must be proportionate to the interest that justifies them and closely tailored to achieving that objective, interfering as little as possible with the effective enjoyment of the right. In that regard, it is not sufficient for the measure to have a legitimate aim; rather, the measure in question must respect proportionality when affecting freedom of expression. In other words, “at this final stage of the analysis, it is considered whether the restriction is strictly proportionate, such that the sacrifice inherent in it is not excessive or disproportionate in relation to the benefits obtained through such limitation.” The Court recalls that these restrictions are exceptional in nature and must not limit the full exercise of freedom of expression beyond what is strictly necessary or become a direct or indirect mechanism of prior censorship.

73. In this regard, the Court has established that such subsequent liability may be imposed insofar as the right to honor and reputation may have been harmed. Article 11 of the Convention thus establishes that everyone has the right to protection of their honor and recognition of their dignity. The Court has stated that the right to honor “recognizes that everyone is entitled to respect for their honor, prohibits any unlawful attack on honor or reputation, and imposes on States the duty to provide the protection of the law against such attacks.” In general terms, this Court has indicated that “the right to honor relates to a person’s self-esteem and self-worth, whereas reputation refers to the opinion others have of that person.” In this regard, this Court has held that “both freedom of expression and the right to honor, both of which are rights protected by the Convention, are of the utmost importance, and it is therefore necessary to guarantee both rights so that they may coexist harmoniously.” Each fundamental right must be exercised with respect for and due protection of all other fundamental rights.

Accordingly, the Court has stated that “resolving the conflict between these two rights requires them to be balanced against one another, for which purpose each case must be examined in light of its characteristics and circumstances in order to assess the existence and intensity of the elements underlying that determination.” 74. In this respect, the Court recalls that, in order to determine whether a restriction on freedom of expression is compatible with the Convention when that freedom conflicts with the right to honor, it is vitally important to analyze whether the statements made concern matters of public interest, since in such cases the adjudicator must exercise particular caution when assessing the need to limit freedom of expression. In its case law, the Court has deemed to be of public interest those opinions or information concerning matters in which society has a legitimate interest in remaining informed, in knowing what affects the functioning of the State, or what affects rights or general interests or entails significant consequences for society.

Such a determination has consequences for the analysis of whether the restriction on the right to freedom of expression is compatible with the Convention, because expressions concerning matters of public interest—such as those relating to a person’s suitability to hold public office or to acts performed by public officials in the discharge of their duties—enjoy greater protection so as to foster democratic debate.

75. Thus, the Court has stated that, in a democratic society, persons who influence matters of public interest are more exposed to public scrutiny and criticism. This different threshold of protection is explained by the fact that their activities move beyond the private sphere and into the sphere of public debate and, therefore, they have voluntarily exposed themselves to this more exacting scrutiny. This in no way means that the honor of persons involved in matters of public interest should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism.

76. Moreover, with regard to the requirement of necessity and the rigorous proportionality analysis that must govern the relationship between a limitation on the right to freedom of expression and the protection of the right to honor, the intervention selected must be the one that, while most suitable for restoring the damaged reputation, also entails the least impairment of freedom of expression. In this regard, within the framework of freedom of information, the Court considers that journalists have a duty to verify, reasonably though not necessarily exhaustively, the facts they report. This does not, however, impose a strict requirement of truthfulness, at least as regards matters of public interest, and recognizes as a defense that the publication was made in good faith or on reasonable grounds and always in accordance with minimum standards of ethics and professionalism in the search for truth. The Court also notes that, for investigative journalism to exist in a democratic society, journalists must be afforded “room for error,” because without such a margin for error there can be neither independent journalism nor, consequently, the necessary democratic scrutiny that flows from it.

77. Additionally, the Court also considers that no one may be subjected to subsequent liability for disseminating information related to a matter of public interest when that information is based on material accessible to the public or originating from official sources.

78. Lastly, it must also be emphasized that, if it is deemed appropriate to grant reparation (reparación) to a person whose honor has been harmed, the purpose of that reparation must not be to punish the person who communicated the information, but to restore the injured person. In this respect, States must exercise the utmost caution when imposing reparations so that they do not deter the press from participating in the discussion of matters of legitimate public interest (…)”.

In addition to the foregoing, it should be emphasized that freedom of expression, as provided in Article 13.3 of the American Convention on Human Rights, may not be restricted or curtailed through the use of indirect measures or means. This particular aspect, however, will be addressed below.

V.Freedom of the press as a manifestation of the right to freedom of expression. Freedom of the press is grounded in freedom of expression and, at the same time, is one of its natural vehicles. It is one of the principal and most important manifestations of freedom of expression. The aforementioned Declaration of Chapultepec has been unequivocal regarding the protection that freedom of the press particularly warrants; accordingly, its first principle provides: “1. No persons or societies are free without freedom of expression and of the press. The exercise of this freedom is not a concession by the authorities; it is an inalienable right of the people.”

This is a fundamental right that ensures that any person may, on the one hand, access information and, on the other, disseminate it through any means of expression, whether print media (newspapers, magazines, brochures, etc.), radio, television, and even, more recently, through the internet and digital platforms, among others. In particular, this Chamber has defined this right as the right of individuals subject to the Administration “(…) to seek and disseminate information and ideas to an indeterminate number of persons concerning events that, by their nature, are of general interest because they are considered newsworthy (...)” (Judgments Nos. 5977-2006 at 15:16 hrs. of 3 de mayo de 2006 and 8396-2018 at 12:40 hrs. of 25 de mayo de 2018).

By virtue of the foregoing, this freedom allows people to organize and establish media outlets independent of governmental power, through which they have the right to express themselves freely, without censorship. All of this must also be possible without fear of reprisals from the State or from other entities or individuals. The purpose of this right is to ensure that the public may receive and disseminate information that is neither manipulated nor placed at the service of a person, entity, or particular interest.

From its earliest rulings, the Inter-American Court of Human Rights, when resolving Advisory Opinion No. OC-5/85 on compulsory membership in a professional association for journalists by judgment of 13 de noviembre de 1985, addressed this freedom in the context of journalistic practice and stated that:

“(…) 72. (...) The profession of journalism—what journalists do—specifically involves seeking, receiving, and disseminating information. The practice of journalism therefore requires a person to engage in activities that are defined by or encompassed within the freedom of expression guaranteed by the Convention (...)

74. (...) The practice of professional journalism cannot be distinguished from freedom of expression; on the contrary, the two are clearly intertwined, since a professional journalist is, and can be, nothing other than a person who has chosen to exercise freedom of expression continuously, regularly, and for remuneration (...)”.

Likewise, in the case of Nombre61 v. Costa Rica (judgment of 2 de julio de 2004), the Inter-American Court of Human Rights held the following regarding the role of the media and journalism in relation to freedom of expression:

“(…) 117. The mass media play an essential role as vehicles for exercising the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the widest possible range of information and opinions. Such media, as essential instruments of freedom of thought and expression, must responsibly perform the social function they undertake.

118. Within this context, journalism is the primary and principal manifestation of this freedom and, for that reason, cannot be conceived merely as the provision of a service to the public through the application of knowledge or training acquired at a university. On the contrary, journalists, by reason of the activity they perform, professionally devote themselves to social communication. The practice of journalism therefore requires a person to engage responsibly in activities that are defined by or encompassed within the freedom of expression guaranteed by the Convention.

119. In this regard, the Court has indicated that it is essential for journalists working in the media to enjoy the protection and independence necessary to perform their duties fully, since they are the ones who keep society informed, an indispensable requirement for society to enjoy full freedom and for public debate to be strengthened. (…)”. (Emphasis not in the original).

More recently, in the case of Nombre64 et al. v. Costa Rica (judgment of 23 de mayo de 2022), the Inter-American Court of Human Rights reiterated part of the foregoing and held the following on this same subject:

“(…) b.2 Importance of the journalist’s role in a democratic society 66. The Court has emphasized that the professional practice of journalism “cannot be distinguished from freedom of expression; on the contrary, the two are clearly intertwined, since a professional journalist is, and can be, nothing other than a person who has chosen to exercise freedom of expression continuously, regularly, and for remuneration.” The Court has stated that the mass media play an essential role as vehicles for exercising the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the widest possible range of information and opinions. Indeed, the Court has characterized the mass media as true instruments of freedom of expression and has further noted that “[i]t is the mass media that serve to give practical effect to the exercise of freedom of expression, and therefore their operating conditions must conform to the requirements of that freedom.

To this end, it is indispensable, inter alia, to ensure a plurality of media outlets, to prohibit any monopoly over them, regardless of the form it may seek to adopt, and to guarantee protection for the freedom and independence of journalists.” 67. The Court recalls that, for the press to perform its role of journalistic oversight, it must not only be free to impart information and ideas of public interest but must also be free to gather, collect, and evaluate such information and ideas. In his 2012 report to the United Nations Human Rights Council, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated that persons engaged in journalistic activity “observe, describe, document, and analyze events, and document and analyze statements, policies, and any proposals that may affect society, for the purpose of systematizing that information and assembling facts and analyses to inform sectors of society or society as a whole.” The foregoing means that any measure interfering with the journalistic activities of persons performing this function will inevitably obstruct the right to freedom of expression in both its individual and collective dimensions.

68. Additionally, within the framework of freedom of information, this Court considers that journalists have a duty to reasonably, though not necessarily exhaustively, verify the facts they disclose. In other words, it is valid to require fairness and diligence when comparing sources and seeking information. This entails the right of persons not to receive a manipulated version of the facts. Consequently, journalists have a duty to maintain a degree of critical distance from their sources and to compare them with other relevant information. For its part, the European Court of Human Rights has indicated that freedom of expression does not guarantee unlimited protection for journalists, even in matters of public interest. Indeed, that Court has stated that, although journalists are protected by freedom of expression, they must perform their work in accordance with the principles of ethical and “responsible journalism,” which is particularly relevant in a contemporary society where the media not only report information but may also suggest, through the manner in which they present it, how that information should be understood.

69. Furthermore, given the importance of freedom of expression in a democratic society and the considerable responsibility this entails for those who professionally perform social-communication work, the State must not only minimize restrictions on the circulation of information but must also, to the greatest extent possible, balance the participation of different types of information in public debate by promoting diversity of information. Lastly, the Court has indicated that it is essential for journalists working in the media to enjoy the protection and independence necessary to perform their duties fully, since they are the ones who keep society informed, an indispensable requirement for society to enjoy full freedom and for public debate to be strengthened.

70. Within the framework of the protection that States must provide, the protection of journalistic sources is essential, as it is a cornerstone of freedom of the press and, more generally, of a democratic society, since such sources allow societies to benefit from investigative journalism in order to strengthen good governance and the rule of law (Estado de Derecho). The confidentiality of journalistic sources is therefore essential to the work of journalists and to their role in informing society about matters of public interest (…)”. (Emphasis not in the original).

Accordingly, freedom of the press, in relation to freedom of expression, refers to the right of every person—and particularly of the media, through their journalists—to investigate and report without unreasonable limitations or coercion.

The Colombian Constitutional Court has also addressed this freedom, highlighting three of its most important characteristics. In particular, in Judgment No. C-135/21 of 13 de mayo de 2021, it held that the press fulfills an educational role, serves as a mechanism that contributes to the development of peaceful social dialogue, and acts as a guardian of democracy. It further expressly explained the following regarding these characteristics:

“(…) 57.1. Educational role. The media and the press act as disseminators of knowledge. This allows the general public to access information about events, scientific knowledge, the laws governing them, and public information in a broad sense that they could not otherwise obtain. The press is a source that centralizes and subsequently disseminates knowledge, enabling the public to become educated and democracy to be strengthened.

57.2. Mechanism contributing to social dialogue. The access to knowledge provided by the press and mass media, together with the investigative analysis they undertake, leads to greater peaceful dialogue and debate among the public concerning matters of public interest.

57.3. Guardian of democracy. The press and mass media have been called ‘the fourth estate’ or ‘the guardian of democracy,’ referring to their function of overseeing the Public Administration and their designation as an instrument for holding those who wield power accountable (…)”.

This constitutional body has likewise ruled on this freedom. Thus, in Voto No. 5977-2006 at 15:16 hrs. of 3 de mayo de 2006, it stated:

“(…) Freedom of the press (libertad de prensa) broadly encompasses all types of printed matter, printing, publishing, and circulation of newspapers, pamphlets, magazines, and publications of every kind. By its nature, it is the natural vehicle for citizens’ freedom of expression (libertad de expresión). It entails the right of persons subject to the administration to seek and disseminate information and ideas to an indeterminate number of people regarding facts that, by their nature, are of general interest because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in a democracy are: to inform (about facts and newsworthy events), to shape opinion (by fostering social integration), and to oversee political power, insofar as it serves as a permanent guardian of honesty and the proper management of public affairs. Given its symbiotic link with democratic ideology, countless international instruments and virtually all Constitutions of the free world have recognized it since the French Declaration of 1789 (art.11).

Our Political Constitution, for its part, protects it through various provisions: “Everyone may communicate their thoughts orally or in writing and publish them without prior censorship (censura previa); however, they shall be liable for any abuses committed in the exercise of this right, under the conditions and in the manner established by law” (article 29). “No one may be harassed or persecuted for expressing their opinions or for any act that does not violate the law. Private actions that do not harm public morals or public order or injure third parties are beyond the reach of the law. Nevertheless, clergy members or laypersons may not engage in political propaganda in any form by invoking religious motives or using religious beliefs as a means thereof” (article 28). Other constitutional provisions related to this right are: “The freedom of petition (libertad de petición), individually or collectively, before any public official or government entity, and the right to obtain a prompt decision are guaranteed” (article 27). “Free access to administrative departments for the purpose of obtaining information on matters of public interest is guaranteed. State secrets are excepted” (article 30).

Freedom of expression entails the prohibition of every form of censorship, in a twofold sense: first, speakers may not be censored; and second, the possible content of a discussion generally may not be censored in advance either: in principle, every subject is open to discussion in a democracy. The freedom of individuals from censorship is virtually universal, as established by our Constitution: no one may be deprived of the freedom to speak and express themselves as they see fit. Although content is not subject to prior censorship, it does encounter certain limitations; however, those limitations must be such that freedom continues to have meaning and is not deprived of its substance. Essentially, like every freedom, it must be exercised responsibly and, ultimately, in pursuit of legitimate aims within the system (…)”.

Likewise, in Voto No. 10961-2020 at 10:05 hrs. on 16 de junio de 2020, this jurisdiction referred to freedom of the press and its intrinsic relationship with freedom of information (libertad de información), stating as follows:

“(…) IV.- For its part, freedom of information and of the press has also been extensively developed as a preferred right (derecho preferente), which is not only a fundamental right (derecho fundamental) but also serves as an essential guarantee for the functioning of the democratic system. By way of reference, judgments 2004-08229 and 2007-017324 may be cited, which define it as follows:

‘(...) The Right to Information (Derecho a la Información), which is closely related to Freedom of Expression and the Right of the Press (Derecho de Prensa), consists of the authority to seek, receive, and disseminate information and ideas of every kind and may be exercised through the printed word and radio and television broadcasts. On this matter, in judgment number 2001–09250 at 10:22 hours on 14 de setiembre de 2001, the Chamber stated as follows:

“...freedom of information is a means of shaping public opinion on matters of general interest. This preferred status reaches its highest level when that freedom is exercised by information professionals through the institutionalized vehicle for shaping public opinion, namely the press, understood in its broadest sense. This, however, does not mean that the same freedom may be understood as absolute; rather, each specific case must be analyzed to weigh whether the information was communicated within the constitutionally protected sphere or whether, on the contrary, it exceeded that sphere, affecting the right to honor (derecho al honor), privacy (intimidad), or one’s image (imagen), among other rights that are also constitutionally protected.” Indeed, legal scholarship on the subject indicates that Freedom of the Press protects the ability to publish truthful news for proper motives and justifiable purposes.

Nevertheless, although the mission of the press in an open and democratic society is to inform public opinion objectively and truthfully, this must not be understood as an absolute requirement because, in practice, there clearly are difficulties of every kind that would make it entirely unreasonable to demand such an achievement from the media. For this reason, it has been accepted that they are required only to seek the truth faithfully and honestly, as impartially as possible. In other words, the duty of truthfulness (deber de veracidad) requires them only to make reasonable efforts to ascertain the truth, not to accomplish that aim absolutely. Accordingly, the duty of truthfulness entails an obligation of means (obligación de medios), not an obligation of results (obligación de resultados) (…)

The democratic order requires the defense of freedom of expression as a basic and indispensable instrument for shaping public opinion. That defense encompasses the ability to express thoughts using the means chosen by the speaker, as well as the ability to disseminate them through those means. (…) the value of this protection reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for shaping public opinion, namely the press. In this regard, although the right of expression contemplated in article 13 of the American Convention is not absolute, the limits on its exercise and the controls governing its proper performance must in no way restrict its exercise beyond what is strictly necessary, to the point that they may become a direct or indirect mechanism affecting freedom of expression, information, and the press and constitute a violation of that right (…)”. (Emphasis not in the original).

Similarly, in Judgment No. 9512-2020 at 13:02 hrs. on 22 de mayo de 2022, this Constitutional Court ruled as follows:

“(…) it is clear that the exercise of the freedoms of expression and information takes on distinctive characteristics when carried out through a communications medium, and those characteristics will vary depending on each type of medium. These variations, in turn, affect the scope and content of the rights exercised and the possible limitations to which they may eventually be subject. It is clear that the legal interest protected (objeto jurídico de la protección) by freedom of expression within the framework of freedom of the press is the ability to obtain information as a necessary input for becoming informed and informing a community. That is, stricto senso, freedom of expression protects the transmission of all types of thoughts, opinions, ideas, and personal information of the person expressing themselves, whereas freedom of information allows people to receive and possess information about facts, events, occurrences, persons, groups, and situations in general, so that the recipient may learn what is happening.

Freedom of information encompasses activities such as seeking information and conducting research through sources in which information may be found, processed, and transmitted through a particular medium. For this reason, the right to inform (derecho a informar) occupies a special place within the Costa Rican constitutional legal system, particularly when its exercise is coupled with freedom of the press—that is, when it is exercised through the media. The various international human rights courts have recognized that the media perform an important social function in building and sustaining democratic systems. Accordingly, it has been recognized on numerous occasions that mass media outlets, as legal persons (personas jurídicas), may hold fundamental rights according to their particular nature; consequently, it is clear that freedom of expression does protect media outlets as legal persons, as well as those who express themselves through them.

It is equally pertinent to emphasize, in this area, the relationship between the freedom of expression of a media outlet as a “legal person” and the freedom of expression of the natural persons (personas naturales) who form part of the organizational structure of such legal persons—for example, editors, writers, reporters, and other journalists or social communicators—who contribute to the transmission of statements by third parties while also exercising their own freedom of expression. The relationship between both freedoms, and in turn between those freedoms and the freedom of expression of the person who is actually communicating a message through such media or persons, must be resolved in each specific case with particular attention to the various interests at stake, in order to reach a solution that achieves the greatest possible degree of concrete harmonization among them all, as well as with the interests of the recipient and, especially, the general public.

The mass dissemination achieved by information transmitted through the media, its power to penetrate society, and the profound impact it may have on people generally guarantee the democratic development of a constitutional state and, in turn, foster the strengthening of freedom of expression.

In this regard, the Inter-American Court of Human Rights has indicated that it is essential for journalists working in the media to enjoy the protection and independence necessary to perform their duties fully, because they are the ones who keep society informed—an indispensable requirement for society to enjoy full freedom and for public debate to be strengthened—since the social media play an essential role as vehicles for exercising the social dimension of freedom of expression (dimensión social de la libertad de expresión) in a democratic society. For this reason, it is indispensable that they gather the broadest possible range of information and opinions (Caso Nombre65 vs Panamá- Corte I.D.H.-).

In turn, the European Court of Human Rights, when interpreting article 10 of the European Convention, concluded that “necessary,” while not synonymous with “indispensable,” implies the “existence of a ‘pressing social need’” and that, for a restriction to be “necessary,” it is not sufficient to demonstrate that it is “useful,” “reasonable,” or “appropriate” (21). This concept of a “pressing social need” was adopted by the Court in its advisory opinion OC-5/85, La Colegiación Obligatoria de Periodistas (articles 13 and 29 of the American Convention on Human Rights). (…)

It should be emphasized that it is through the media that freedom of expression contributes to the consolidation of democratic society. Therefore, the conditions governing its exercise must conform to the requirements of this freedom, which means that the freedom and independence of journalists and the media must be guaranteed (Advisory Opinion OC-5/85, Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism).

According to the case law of the Inter-American Court, freedom of expression is not fully realized by the theoretical recognition of the right to speak or write, but only when it also inseparably includes the right to use every appropriate means to disseminate information and ensure that it reaches the widest possible audience (…) (Case Nombre65 v. Panama—Inter-American Court of Human Rights—). Nevertheless, like any other human right, freedom of expression is not an absolute right and may be subject to limitations imposed by any state authority or, in some cases, by private parties, provided that such limitations have previously been enacted by the legislature under strict conditions. (…)”. (Emphasis not in the original).

VI. REGARDING FREEDOM OF EXPRESSION (AND OF THE PRESS) AS GUARANTORS OF THE DEMOCRATIC SYSTEM

Freedom of expression and, concomitantly, the exercise of freedom of the press are fundamental pillars upon which a democratic society is built. The intrinsic relationship between these freedoms and democracy is virtually unquestionable; hence, democracy is arbitrarily weakened and eroded when these freedoms cannot be fully exercised or are not respected and guaranteed within legal systems (ordenamientos jurídicos).

The Inter-American Democratic Charter (adopted by the OAS Member States during a special session of the General Assembly held on September 11, 2001, in Lima, Peru) provides in Article 4, in this regard, that: “Transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.” Furthermore, it should be recalled that the aforementioned Declaration of Principles on Freedom of Expression establishes in its first principle that freedom of expression is “(…) an indispensable requirement for the very existence of a democratic society.” Freedom of the press (or what some call a free press), as a manifestation of freedom of expression, is an essential means of scrutinizing—without repression—the actions of third parties, whether private individuals or public officials, particularly those who hold or aspire to high office, thereby enabling accountability (rendición de cuentas), the fight against corruption, and transparency in the management of public funds, among many other aspects that are fundamental to maintaining a democratic system.

Part of that duty lies in investigating persons in power, particularly the government, asking difficult questions, and thus attempting to reveal to the public what is really happening, as a means of enabling people to make the right decisions, particularly when voting and also thereafter, while power is being exercised. As stated by the organization known as the Civil Liberties Union for Europe (a nongovernmental organization that promotes civil liberties for everyone in the European Union), “(…) A free press helps at every step of this process. It provides information to voters before they vote; encourages dialogue and debate to enrich their understanding of that information; and then informs the public about the government’s work and whether it is actually fulfilling its promises. In a democracy, the public delegates decision-making power to its elected officials, and the press is one means of holding them accountable (…)”.

In essence, it may therefore be said that freedom of the press is fundamental in democratic systems because it enables citizens to form opinions and judgments regarding the reality in which they live. For this reason, regrettably, independent media are among the principal targets of antidemocratic political systems or, at least, of those seeking to take that shape and moving in that direction.

This Constitutional Chamber has specifically addressed freedom of expression and its function as a guarantor of democracy. Thus, in the landmark Voto No. 5977-2006 of 15:16 hrs. on May 3, 2006, it stated the following:

“(…) VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—although not the only one—necessary for democracy to function. This freedom enables the formation of public opinion, which is essential to giving substance to several principles of the constitutional state, such as the right to information, the right of petition, and rights concerning political participation; the existence of free and firmly established public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions is a necessary prerequisite for building a social dynamic involving the exchange of knowledge, ideas, and information, thereby enabling consensus-building and decision-making among the members of the various social groups, while also providing a channel for expressing dissent, which is as necessary in a democracy as agreement.

In turn, the exchange of opinions and information arising from public discussion contributes to the formation of personal opinion; together, these comprise public opinion, which ultimately finds expression through the channels of representative democracy. As the Spanish Constitutional Court itself has observed, other rights enshrined in the Constitution would be deprived of any real substance, representative institutions would be reduced to hollow forms, and the principle of democratic legitimacy... which is the foundation of our entire legal and political order, would be completely distorted (Judgment 6/1981), if there were no freedoms capable of enabling that exchange, which… presupposes the right of citizens to have extensive and adequate information concerning the facts, allowing them to form their convictions and participate in discussion of public affairs (Judgment 159/1986) (…)”. (Emphasis not in the original).

In addition, strictly with respect to the media and their responsibility when reporting information and thereby contributing to democratic processes, the same decision held as follows:

“(…) XI.- The social responsibility of the media as holders of power in relation to citizens. The struggle to defend the fundamental rights of inhabitants traditionally arose in opposition to political power; subsequently, however, it evolved to protect individuals from other private actors who hold power over citizens in cases where they infringe a fundamental right. It must be clearly understood that, in democracies, the media do not play a merely passive role with respect to freedom of expression; they are not limited to being victims of attacks against such an important freedom. On the contrary, they bear great responsibility and wield considerable power because they are the natural vehicles through which communicative freedoms (expression, the press, information, and so forth) become a reality and can serve the development of democratic processes by fostering a well-informed citizenry that knows its rights and obligations and has the tools necessary to choose its leaders wisely.

The social responsibility of the media and the place of freedom of expression in democratic development are what justify the legal status of the media and of the professionals who work in them being different from that of other persons. But that status, as noted, may not be invoked in pursuit of illegitimate purposes, including bad-faith or manifestly negligent attacks on fundamental freedoms. In light of these reasons and grounds, it must be concluded that the State, and specifically the legislature, has the right and duty to protect individuals against the illegitimate exercise of this right, which, when misused, is as harmful to democracy as censorship itself, not only because its bad-faith exercise may harm the honor of the affected person, but also because it may impair the right of society as a whole to receive adequate information capable of helping it form public opinion transparently.

The danger that misuse of this right poses to democracy is as serious as the failure to exercise it, and such misuse is determined not only by manifest negligence or bad faith affecting other freedoms, but also by other factors, such as the possibility that a lack of media pluralism may impair the press’s ability to generate free and informed public opinion. Naturally, the requirement of such pluralism is not limited to a purely quantitative dimension but also entails a qualitative factor embodied in the ‘presence of a diversity of opinions and sources of information.’ There is no doubt that, because of their role in democracy and their capacity for dissemination, the media occupy a position of power in relation to citizens and society; although their existence is fundamental to the legitimate and essential purposes of democracy, they have the potential, like any holder of power, to deviate occasionally in individual cases, in which event the State is obligated to establish the safeguards necessary to protect the system and the individual.

Clearly, as indicated, state protection cannot take the form, as the Court of Human Rights has stated, of a right to censor information in advance, which would plainly be unconstitutional (Art. 28); rather, it refers to subsequent review (control a posteriori) where there was an intention to cause harm, where the actor proceeded with full knowledge that false reports were being disseminated, or where the actor displayed manifest negligence in determining whether those reports were true or false, thereby harming a person’s honor and reputation. The Chamber shares the opinion of the Inter-American Court of Human Rights (Advisory Opinion 5/85) that:

33. ...It would not be lawful to invoke the right of society to be truthfully informed as grounds for a prior-censorship regime purportedly intended to eliminate information that the censor considers false. Nor would it be permissible, on the basis of the right to disseminate information and ideas, to establish public or private monopolies over the media in an attempt to shape public opinion according to a single viewpoint.

Likewise, it recognizes the precedent established in the 1964 case New York Times v. Nombre152, which states that the protection afforded by the Constitution to freedom of expression (libertad de expresión) does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper exercise of that freedom, on the basis of which the government and the courts must allow debate to be “uninhibited, robust, and wide-open,” which may include caustic and vehement expressions and, at times, severe and unpleasant attacks on the government and public officials. Erroneous statements are inevitable in free debate and must be protected in order to give freedom of expression the breathing space it needs to survive. The rules must prevent a public official from suing a media outlet or a private individual for damages caused by false defamation (difamación falsa) concerning the official’s conduct, unless it is proven by clear and convincing evidence that the statement was made with actual malice (malicia real), that is, with knowledge that it was false or with reckless disregard as to whether or not it was false.

This qualification is indispensable in light of the State’s obligation to protect the reputation and honor of persons and, moreover, as part of its obligation to ensure that the misuse or diversion of this freedom is not employed to violate equally essential purposes of the democratic system, including the system of fundamental rights (derechos fundamentales). Legal scholarship recognizes the interdependence among fundamental rights and their systemic value; in that regard, protecting one freedom to the detriment of others due to the absence of a hermeneutical perspective has a negative effect on the entire system of freedom (see judgment 2771-03 of this Chamber).” (…)”. (Emphasis not in the original).

Likewise, in Judgment No. 15220-2016 at 16:00 hrs on 18 de octubre de 2016, this constitutional body very aptly stated the following:

“(…) Freedom of expression is a fundamental pillar of the democratic State because it enables the circulation of ideas and information—including those opposing the government in office—the formation of public opinion, transparency, oversight, and the reporting of government actions, among other things. It is not without reason that Nombre153 states that democracy is the exercise of power in public (…) in the case of public officials, particularly high-ranking officials, the threshold for freedom of expression and the duty to tolerate criticism are higher. This is so because a fundamental element of the democratic system, distinguishing it from dictatorships, is the broad freedom enjoyed both by the public generally and by the press in particular to express criticism and question the suitability (technical or moral) of public officials and their decisions, without fear of censorship or retaliation.

This clearly does not prevent a person who considers himself or herself adversely affected from exercising the right of reply (derecho de rectificación) or pursuing other ordinary judicial remedies to defend his or her image and good name. Public officials specifically are more exposed to public scrutiny because the performance of their duties transcends the private sphere and, due to its impact on political and national developments and affairs, enters the public sphere; that is, it has consequences of interest to the public generally. Likewise, public oversight of the Public Administration and public officials’ duty of accountability (rendición de cuentas) (artículo 11 of the Constitución Política) can exist only in a democratic system with broad freedom of expression and information. That is the significance of the social dimension of the right to information (derecho de información), which is closely linked to freedom of expression. It was precisely in this regard that the Inter-American Court of Human Rights ruled in the Nombre66 case:

“115. Lastly, with regard to the right to honor (derecho a la honra), the Court recalls that statements concerning a person’s suitability to hold public office or acts performed by public officials in the discharge of their duties enjoy greater protection so as to foster democratic debate. The Court has stated that, in a democratic society, public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained by the fact that they have voluntarily exposed themselves to more exacting scrutiny. Their activities leave the confines of the private sphere and enter the sphere of public debate. This threshold is based not on the person’s status, but on the public interest of the activities that person performs (…)

122. As already indicated, international law establishes that the threshold for protecting a public official’s honor must allow the broadest possible public oversight of the performance of the official’s duties (supra para. 115). This differentiated protection of honor is explained by the fact that a public official voluntarily exposes himself or herself to public scrutiny, thereby facing a greater risk of harm to his or her honor, as well as by the possibility, associated with that status, of having greater social influence and easier access to the media to provide explanations or respond regarding events in which he or she is involved.” Likewise, in the Nombre67 case, the Court stated: “97. Democratic oversight by society through public opinion fosters transparency in State activities and promotes officials’ accountability for their public administration; consequently, there must be a broader margin of tolerance for statements and assessments made during political debates or concerning matters of public interest.

98. The Court has established that it is logical and appropriate for statements concerning public officials or other persons who perform public functions to enjoy, under the terms of artículo 13.2 of the Convention, a degree of openness to broad debate on matters of public interest, which is essential to the operation of a truly democratic system. (…)”. (Emphasis not in the original).

Furthermore, in Judgment No. 12926-2017 at 09:30 hrs. on 18 de agosto de 2017, this Chamber stated, regarding this particular issue, that:

“(…) freedom of the press (libertad de prensa) is a fundamental pillar of the democratic State, to the extent that the latter cannot exist without an effective guarantee for all inhabitants Nombre01 to exercise the right to seek, receive, and impart information and ideas of every kind, regardless of frontiers, whether orally, in writing, in print, in artistic form, or through any other medium of their choice, and that right may not be subjected to prior censorship (previa censura) (...)”.

The Inter-American Court of Human Rights has also referred to the close relationship between democracy and freedom of expression and has stated that freedom of expression is a fundamental element upon which the existence of a democratic society is based. In this regard, in Advisory Opinion No. OC-5/85 concerning compulsory membership in a professional association for journalists (judgment of 13 de noviembre de 1985), it held that freedom of expression is a conditio sine qua non for those wishing to influence the community to develop fully and, for that reason, affirmed that a society that is not well informed is not fully free. In other words, within democratic systems, the exercise of freedom of expression enables the development and self-realization of human beings, contributes to the functioning of democracy, and is a means or instrument for exercising other human rights. For its part, in Nombre61 v. Costa Rica, the Court held as follows:

“(…) 113. In terms consistent with those articulated by the Inter-American Court, the European Court of Human Rights has addressed the importance of freedom of expression in a democratic society, stating that ‘(…) freedom of expression constitutes one of the essential foundations of a democratic society and a fundamental condition for its progress and for each individual’s personal development. This freedom must be guaranteed not only with respect to the dissemination of information or ideas that are favorably received or regarded as inoffensive or a matter of indifference, but also with respect to those that offend, are unwelcome, or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance, and broadmindedness, without which there is no democratic society. (…) This means that (…) any formality, condition, restriction, or penalty imposed in this area must be proportionate to the legitimate aim pursued (…)’.” (Emphasis not in the original).

Likewise, on this latter occasion, the Inter-American Court of Human Rights stated that the African Commission on Human and Peoples’ Rights and the Human Rights Committee had also ruled to the same effect; it therefore concluded that the various regional and universal systems for the protection of human rights agree on the essential role played by freedom of expression in the consolidation and operation of a democratic society. In addition, it expressly stated that:

“(…) 116. (…) Without effective freedom of expression, fully realized in all its dimensions, democracy fades away, pluralism and tolerance begin to break down, mechanisms for public oversight and reporting begin to become ineffective and, ultimately, fertile ground begins to emerge for authoritarian systems to take root in society (…)”.

In Nombre65 v. Perú (judgment of 6 de febrero de 2001), the Inter-American Court of Human Rights noted that the European Court, in turn, had emphasized that artículo 10.2 of the European Convention, concerning freedom of expression, leaves very little scope for any restriction of political debate or debate on matters of public interest, and explained that, according to that Court: “(…) 155. (…) the limits of acceptable criticism are broader with regard to the government than in relation to a private citizen or even a politician. In a democratic system, the government’s acts or omissions must be subject to rigorous scrutiny, not only by the legislative and judicial authorities, but also by public opinion (…)”.

Likewise, in the judgment Nombre64 et al. v. Costa Rica (judgment of 23 de mayo de 2022), the Inter-American Court of Human Rights confirmed the foregoing as follows:

“(…) b.1 Importance of freedom of expression in a democratic society (…)

63. (…) the Court has established that freedom of expression (libertad de expresión), particularly in matters of public interest, “is a cornerstone of the very existence of a democratic society”63. The Inter-American Court, in its Advisory Opinion OC-5/85, referred to the close relationship between democracy and freedom of expression, establishing that this right is indispensable to the formation of public opinion and is also a conditio sine qua non for political parties, trade unions, scientific and cultural associations, and, in general, those wishing to influence society to develop fully, and, ultimately, for the community to be sufficiently informed when exercising its choices. Indeed, democratic oversight by society through public opinion fosters transparency in State activities and promotes the accountability of public officials for their public administration, which is why any restriction on political debate or debate on matters of public interest must be afforded only a narrow margin.

64. The Court recalls that, in a democratic society, the rights and freedoms inherent to the individual, their guarantees, and the rule of law (Estado de Derecho) constitute a triad, each component of which is defined, complemented, and given meaning in relation to the others. In this regard, the Court notes that Articles 3 and 4 of the Inter-American Democratic Charter emphasize the importance of freedom of expression in a democratic society by establishing that “[t]he essential elements of representative democracy include, among others, respect for human rights and fundamental freedoms; access to and the exercise of power in accordance with the rule of law; the holding of periodic, free, and fair elections based on universal and secret suffrage as an expression of the sovereignty of the people; a pluralistic system of political parties and organizations; and the separation and independence of the branches of government.” It further states that “[t]ransparency in government activities, integrity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.” 65.

Thus, without an effective guarantee of freedom of expression, the democratic system is weakened and pluralism and tolerance are undermined; mechanisms for citizen oversight and reporting may become ineffective and, ultimately, fertile ground is created for authoritarian systems to take root (…)”.

For its part, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework regarding the Right to Freedom of Expression, December 2009) stated the following:

“(…) the IACHR and the Inter-American Court have emphasized in their case law that the importance of freedom of expression within the catalogue of human rights also stems from its structural relationship with democracy. This relationship, which the bodies of the inter-American human rights system have described as ‘close,’ ‘indissoluble,’ ‘essential,’ and ‘fundamental,’ among other terms, explains much of the interpretative development that the IACHR and the Inter-American Court have afforded freedom of expression in their various decisions on the matter. The link between freedom of expression and democracy is so important that, as the IACHR has explained, the very purpose of Article 13 of the American Convention is to strengthen the operation of pluralistic and deliberative democratic systems by protecting and fostering the free circulation of information, ideas, and expressions of every kind (…) if the exercise of the right to freedom of expression is intended not only to achieve the personal fulfillment of the person expressing themselves, but also to consolidate genuinely democratic societies, the State has an obligation to create the conditions necessary for public debate to meet not only everyone’s legitimate needs as consumers of certain information (entertainment, for example), but also their needs as citizens.

In other words, sufficient conditions must exist for public, pluralistic, and open deliberation to take place on matters that concern all of us as citizens of a particular State (…)”. (Emphasis not in the original).

That Office of the Special Rapporteur also stated the following:

“(…) in a democratic society, the press has the right to report freely and criticize the government, and the people have the right to be informed of differing views regarding what is happening in the community (…)”.

Along the same lines, the European Court of Human Rights, in Nombre154 v. Austria (judgment of 8 de julio de 1986), emphasized that “(…) freedom of the press (libertad de prensa) provides public opinion with one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate lies at the very heart of the concept of a democratic society (…)”.

Likewise, the Colombian Constitutional Court has addressed the matter under consideration on several occasions. Thus, in Judgment No. T-256/13 of 30 de abril de 2013, it held that: “(…) the right to freedom of expression is a principle underlying the exercise of democracy, since it is within the framework of a democratic State that citizen participation acquires particular relevance and, in furtherance thereof, the freedom to express differing opinions and minority viewpoints without fear of repression by State authorities is guaranteed (…)” and explained that:

“(…) Accordingly, the pronouncements of the Inter-American Commission and the case law of the Inter-American Court of Human Rights have emphasized that freedom of expression performs a threefold function within the democratic system: a) it safeguards every individual’s right to think independently and to share personal thoughts and opinions with others; b) it has a close, indissoluble, essential, fundamental, and structural relationship with democracy and, to that extent, the very purpose of Article 13 of the American Convention is to strengthen the operation of democratic, pluralistic, and deliberative systems by protecting and fostering the free circulation of ideas and opinions; and c) lastly, it is a key tool for exercising other fundamental rights, since ‘it is an essential mechanism for exercising the rights to participation, religious freedom, education, ethnic or cultural identity and, of course, equality, understood not only as the right to nondiscrimination but also as the right to enjoy certain basic social rights (…)’”.

Similarly, this constitutional body added that:

“(…) From a very early stage in its case law, this Court recognized the value of this right within the framework of a democracy in the following terms: ‘Although the freedom to express and disseminate one’s own thoughts and opinions is a right held by every person, it is not merely an individual right but also a guarantee of a fundamental political institution: “free public opinion.” Free public opinion is indissolubly linked to political pluralism, which is a fundamental value and a prerequisite for the functioning of a democratic State. Without free public communication, other rights enshrined in the Constitution would be stripped of their substantive content, representative and participatory institutions would be reduced to empty forms, and the principle of democratic legitimacy would be completely distorted (…)’”. (Emphasis not in the original).

In Judgment No. T-543 of 2017 of 25 de agosto de 2017, the Colombian Constitutional Court stated that freedom of expression performs the following functions in a democratic society: “(…) (i) it makes it possible to seek the truth and develop knowledge; (ii) it enables the principle of self-government; (iii) it promotes personal autonomy; (iv) it prevents abuses of power; and (v) it is a ‘safety valve’ that encourages the peaceful contestation of State or societal decisions with which people disagree (…)”. For its part, in Judgment No. C-135/21 of 13 de mayo de 2021, that Court noted that some of the contributions made by the fundamental right to freedom of expression to democratic functioning are as follows: “(…) i) it makes it possible to seek the truth and develop knowledge; ii) it creates a space for constructive dialogue and protest by citizens, thereby consolidating pluralistic and deliberative societies; iii) it makes it possible to establish mechanisms for oversight of and accountability by those in government; iv) it promotes citizen self-government; and v) it contributes to better popular elections (…)”.

Also, in Judgment No. T-145/19 of 2 de abril de 2019, the Colombian Court held that freedom of expression “(…) is a pillar of the Social State governed by the rule of law (Estado Social de Derecho) and a fundamental principle of democratic systems, in which human dignity is respected and the participation of citizens and all sectors is valued, thereby making it possible to consolidate pluralistic and deliberative societies (…)”. Likewise, on that occasion, that body stated that “(…) The principal basis for the legal protection of freedom of expression lies in human dignity, personal autonomy, its instrumental role in the exercise of multiple rights, and the various functions it performs within democratic systems (…)”.

VII. PROHIBITION ON IMPOSING INDIRECT RESTRICTIONS ON FREEDOM OF EXPRESSION (AND FREEDOM OF THE PRESS)

Freedom of expression and, therefore, freedom of the press are not considered unrestricted and absolute rights; rather—as discussed supra—they are subject to certain limitations or subsequent liability (responsabilidades ulteriores). In this regard, section 29 of our Political Constitution provides that persons shall be held liable for abuses committed in exercising the right to freedom of expression, while Article 13.2 of the American Convention on Human Rights provides that this right is subject to subsequent liability, which must be expressly established by law and be necessary to ensure respect for the rights or reputations of others or to protect national security, public order, public health, or public morals.

However, this Constitutional Court has likewise held that these limitations are exceptional in nature and may not restrict such rights beyond what is strictly necessary, stripping them of their substance and thereby becoming a direct or indirect mechanism of censorship, which has no place in our system. Consequently, these freedoms may not be subjected either to unlawful direct restrictions (such as prior censorship (censura previa), the murder of journalists because of the performance of their duties, etc.) or to indirect restrictions (restricciones indirectas) (also called soft censorship, subtle or covert censorship (censura sutil, velada)). The latter measures—those of an indirect nature—are characterized by being less evident, while nevertheless having the purpose of arbitrarily diminishing or curtailing freedom of expression. They may be regarded as more subtle means by which public authorities or private individuals seek ultimately and effectively to restrict freedom of expression.

The authors Nombre68 and Nombre155 very aptly define them as those “(…) actions or omissions that result in the inhibition of the individual as a consequence of intimidation, the obstruction of channels of expression, or the ‘planting’ of obstacles that prevent or severely limit the exercise of that freedom (…)” (Nombre68 (Nombre156) and Nombre155 (Nombre157). Freedom of Expression of the Inter-American Court of Human Rights. México, Inter-American Court of Human Rights, Human Rights Commission of the Federal District, first edition, 2007, p. 42). For its part, the Office of the Special Rapporteur for Freedom of Expression explains that “(…) These measures (…) were not strictly designed to restrict freedom of expression. Indeed, they do not per se constitute a violation of this right. Nevertheless, their effects adversely affect the free circulation of ideas in ways that are often insufficiently investigated and, therefore, more difficult to detect (…)” (Annual Report of the Office of the Special Rapporteur for Freedom of Expression, 2004).

Examples of this type of indirect restriction or covert censorship include, among many others, the use of various means to intimidate and thereby prevent publication; controls over newsprint or radio frequencies; restrictions on freedom of movement; the granting or withdrawal of government advertising; limitations on the revenue of media outlets; and the imposition of heavy and unjustified tax burdens. Regarding this type of indirect restriction, the aforementioned authors Nombre68 and Nombre155 explain that it may occur when “(…) a right other than freedom of expression itself is violated in such a way that freedom of expression is affected—for example, in one case, by depriving the individual of nationality—; improper or excessive investigations are conducted; access is prohibited to certain media regularly used by the holder of the right; freedom of movement is restricted; the effects of a contract are disregarded; or the owners of certain property are prevented from disposing of it (…)” (Nombre68 (Nombre156) and Nombre155 (Nombre157).

Freedom of Expression in the Case Law of the Inter-American Court of Human Rights. México, Inter-American Court of Human Rights, Human Rights Commission of the Federal District, first edition, 2007, p. 42). For his part, Justice Nombre69, in the additional reasons set forth in Judgment No. 15220-2016 of 16:00 hrs. on 18 de octubre de 2016, also referred to several forms of this type of indirect or covert censorship, listing the following: “(…) a) Denial of access to institutions and public information in retaliation for critical coverage, forcing the media outlet to resort to the courts. Thus, even if an entity is ultimately ordered to provide certain information once its public nature has been established, it remains true that the Administration ‘gains’ time, thereby ensuring disclosure at a more politically favorable ‘timing.’ b) The inequitable allocation of radio and television frequencies. c) Obstructing access to resources essential to the production of a media outlet (such as paper or telephone service) by establishing arbitrary requirements or imposing unreasonable taxes. d) Threatening to institute judicial proceedings depending on whether critical reports are published (…)”.

With regard to these specifically indirect restrictions, Article 13.3 of the American Convention on Human Rights expressly provides as follows:

“3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” (Emphasis not in the original).

The Declaration of Chapultepec (adopted by the Hemispheric Conference on Freedom of Expression held in México, Nombre62. on 11 de marzo de 1994) provides that there must be no law or act of authority that curtails freedom of expression or of the press, regardless of the medium of communication. Likewise, its list of principles states the following:

“4. Murder, terrorism, kidnapping, pressure, intimidation, the unjust imprisonment of journalists, the physical destruction of communications media, violence of any kind, and impunity for perpetrators severely curtail freedom of expression and of the press. Such acts must be promptly investigated and severely punished.” “5. Prior censorship, restrictions on the circulation of media outlets or the dissemination of their messages, the arbitrary imposition of information, the creation of obstacles to the free flow of information, and limitations on journalists’ freedom to work and move about are directly contrary to freedom of the press.” “6. Media outlets and journalists must not be subjected to discrimination or favoritism because of what they write or say.” “7. Tariff and exchange-rate policies, licenses for the importation of newsprint or journalistic equipment, the granting of radio and television frequencies, and the granting or withdrawal of government advertising must not be used to reward or punish media outlets or journalists.” “10. No media outlet or journalist should be punished for disseminating the truth or expressing criticism of or making allegations against public authorities.” (Emphasis not in the original).

Likewise, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, during its 108th regular session) provides the following on this same subject:

“5. Prior censorship and direct or indirect interference with or pressure on any expression, opinion, or information disseminated through any oral, written, artistic, visual, or electronic medium must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” “9. The murder, kidnapping, intimidation, or threatening of media professionals, as well as the physical destruction of communications media, violates the fundamental rights of individuals and severely curtails freedom of expression. States have a duty to prevent and investigate such acts, punish their perpetrators, and ensure adequate reparation for victims.” “13. The use of the power of the State and public treasury resources; the granting of tariff privileges; the arbitrary and discriminatory allocation of government advertising and government loans; and the granting of radio and television frequencies, among other practices, for the purpose of pressuring and punishing, or rewarding and favoring, media professionals and media outlets on the basis of their editorial positions, violates freedom of expression and must be expressly prohibited by law.

Communications media have the right to carry out their work independently. Direct or indirect pressures intended to silence the reporting activities of media professionals are incompatible with freedom of expression.” (Emphasis not in the original).

As is abundantly clear, there are numerous ways in which media outlets may be manipulated indirectly. Indeed, the American Convention on Human Rights clearly indicates that the examples cited in Article 13.3 are not exhaustive, stating that this type of indirect restriction may also be accomplished “by any other means tending to impede the communication and circulation of ideas and opinions.” The Inter-American Court of Human Rights has addressed covert censorship or specifically indirect restrictions on various occasions and has condemned them unequivocally. Thus, in the Judgment in Nombre65 v. Perú (judgment of 6 de febrero de 2001), the Inter-American Court of Human Rights heard a case brought by Nombre21, a naturalized citizen of Perú and the majority shareholder of the company that then operated television channel 2 in that country. In that capacity, Nombre65 exercised editorial control over its programs, particularly one called Contrapunto (which broadcast several journalistic reports concerning torture, an alleged murder, and corruption committed by the intelligence services of the Peruvian Government), and it was established that, as a result, he was subjected to various acts of intimidation that culminated in the issuance of a decree revoking his Peruvian citizenship.

On that occasion, the Inter-American Court of Human Rights held that the decision invalidating the nationality granted to Nombre65 constituted precisely an indirect means of restricting his freedom of expression, as well as that of the journalists who worked on that program. On that occasion, the Inter-American Court of Human Rights set forth the following pertinent reasoning:

“(…) 158. It has likewise been established that, as a consequence of the editorial position adopted by Channel 2, Mr. Nombre158 was subjected to various types of intimidating actions. For example, following the broadcast of one of the reports mentioned in the preceding paragraph, the Joint Command of the Armed Forces issued an official communiqué accusing Mr. Nombre158 of conducting a defamatory campaign intended to discredit the Armed Forces (supra para. 76.k). Moreover, on the same day that the Army issued that communiqué, the Executive Branch of Perú issued a supreme decree regulating the Nationality Law, which established the possibility of revoking the nationality of naturalized Peruvians (supra para. 76.l).

159. It has also been established that, several days after Channel 2 announced the broadcast of a report concerning illegal recordings of telephone conversations held by opposition candidates, the Director General of the National Police reported that the file in which Mr. Nombre158’s nationality certificate had been processed could not be located and that it had not been established that he had renounced his Israeli nationality. Consequently, a ‘directorial resolution’ was issued rendering the aforementioned nationality certificate void.

160. As a consequence of the foregoing, on 1 August 1997, Judge Nombre70 ordered the suspension of the exercise of Mr. Nombre158’s rights as majority shareholder and Nombre138 of the Company, the revocation of his appointment as a Director thereof, the judicial convening of an Extraordinary General Meeting of Shareholders to elect a new Board of Directors, and the prohibition of the transfer of his shares. In addition, the judge granted provisional administration of the Company to the minority shareholders until a new Board of Directors was appointed, thereby removing Mr. Nombre65 from control of Channel 2.

161. The Court has established that, after the Company’s minority shareholders assumed its administration, journalists who worked on the program Contrapunto were barred from entering Channel 2, and the program’s editorial policy was changed (supra para. 76.v).

162. In the context of the facts described above, this Court observes that the decision that deprived Mr. Nombre158’s certificate of nationality of legal effect constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and conducted investigations for the program Contrapunto on Peruvian television’s Channel 2.

163. By removing Mr. Nombre158 from control of Channel 2 and excluding the journalists from the program Contrapunto, the State not only restricted their right to disseminate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thereby limiting their freedom to exercise political choices and to develop fully in a democratic society.

164. In light of all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Articles 13.1 and 13.3 of the Convention, to the detriment of Nombre21 (…)”. (Emphasis not in the original).

Another clear example of this type of indirect restriction appears in the case of Nombre67 v. Paraguay (judgment of 31 August 2004). Mr. Nombre67, who was a presidential candidate during the campaign for Paraguay’s 1993 elections, linked Nombre71 (also a candidate) to unlawful acts allegedly committed by the latter while serving as Nombre138 of a consortium; those allegations were subsequently published in two Paraguayan newspapers. As a result, Nombre159 (who worked for a media outlet) was criminally prosecuted for the offenses of defamation (difamación) and insult (injuria), convicted at first instance in 1994 and on appeal in 1997, on which occasion he was also sentenced to two months’ imprisonment and a fine. In addition, as a consequence of these proceedings, Nombre159 was subjected to a permanent restriction on leaving the country (and, at the same time, was dismissed from the media outlet where he worked). These judgments were subsequently annulled in December 2002 by the Criminal Chamber of the Supreme Court of Justice of Paraguay. The Inter-American Court of Human Rights referred to the importance of guaranteeing freedom of expression during an electoral campaign and, after analyzing the case before it, held that the criminal sanction imposed on Nombre159 was considered an indirect method of restricting that right. Specifically, on that occasion it stated as follows:

“(…) 3) The importance of freedom of thought and expression in the context of an electoral campaign.

88. The Court considers it important to emphasize that, in the context of an electoral campaign, freedom of thought and expression in both of its dimensions constitutes a fundamental bulwark for debate during the electoral process because it becomes an essential tool for shaping voters’ public opinion, strengthens political competition among the various candidates and parties participating in the elections, and becomes a genuine instrument for analyzing the political platforms put forward by the different candidates, thereby enabling greater transparency and oversight of the future authorities and their administration. (…)

90. The Court considers it essential that the exercise of freedom of expression be protected and guaranteed in the political debate preceding the election of the state authorities who will govern a State. The formation of the collective will through the exercise of individual suffrage draws upon the different options presented by political parties through the candidates who represent them. Democratic debate requires the free circulation of ideas and information concerning the candidates and their political parties by the media, the candidates themselves, and anyone wishing to express an opinion or provide information. Everyone must be able to question and investigate the candidates’ competence and suitability, as well as to disagree with and challenge their proposals, ideas, and opinions, so that voters can form their own judgment before voting. In this regard, the exercise of political rights and freedom of thought and expression are closely linked and mutually reinforcing. In this respect, the European Court has established that:

Free elections and freedom of expression, particularly freedom of political debate, together form the foundation of any democratic system (Cf. judgment in the case of Nombre72 v. Belgica, 2 March 1987, Series A no. 113, p.22, para. 47, and judgment in the case of Nombre154 v. Austria, 8 July 1986, Series A no. 103, p. 26, paras. 41-42). The two rights are interrelated and reinforce each other: for example, as the Court has indicated in the past, freedom of expression is one of the necessary “conditions” for “ensuring the free expression of the opinion of the people in the choice of the legislature” (see the above-mentioned judgment in the case of Nombre72, p. 24, para. 54). For this reason[,] it is particularly important that opinions and information of all kinds be allowed to circulate freely during the period preceding elections.

91. The Court observes that, in his statements, the alleged victim referred to the fact that the company CONEMPA, whose Nombre138 was Mr. Nombre71, then a presidential candidate, “passed” “dividends” to former dictator Nombre160. It has been established, and is also a matter of public knowledge, that this consortium was one of the two companies responsible for carrying out construction work on the Itaipú hydroelectric power plant, one of the world’s largest hydroelectric dams and Paraguay’s principal public-works project.

92. The Court considers that there can be no doubt that Mr. Nombre159’s statements concerning the company CONEMPA related to matters of public interest because, at the time he made them, that company was responsible for constructing the aforementioned hydroelectric power plant. As shown by the body of evidence in the present case (supra para. 69.4), the National Congress itself, through its Bicameral Commission for the Investigation of Unlawful Acts, conducted an investigation into corruption at Itaipú, in which Mr. Nombre71 and the aforementioned company were implicated.

93. The Court observes that the Criminal Chamber of the Supreme Court of Justice of Paraguay, in issuing the decision annulling the convictions handed down in 1994 and 1997 (supra para. 69.49), stated that the remarks made by Mr. Nombre159 within the political context of a presidential election campaign “necessarily constitute, in a Democratic Society directed toward the participatory and pluralistic construction of Power, a matter of public interest.” 94. In the present case, when making the statements for which he was privately prosecuted (querellado) and convicted, Mr. Nombre159 was exercising his right to freedom of thought and expression in the context of an electoral contest, in relation to a public figure—namely, a presidential candidate—and concerning matters of public interest, by questioning a candidate’s competence and suitability to assume the Presidency of the Republic. During the electoral campaign, Mr.

Nombre159 was interviewed about Mr. Nombre161’s candidacy by journalists from two national newspapers, in his capacity as a presidential candidate. By publishing Mr. Nombre159’s statements, the newspapers “ABC Color” and “Noticias” played an essential role as vehicles for exercising the social dimension of freedom of thought and expression, because they collected and conveyed to voters the opinion of one presidential candidate regarding another, thereby helping to ensure that the electorate had more information and different perspectives before making its decisions.

• 4)Permissible restrictions on freedom of thought and expression in a democratic society (…)

98. The Court has established that it is logical and appropriate that expressions concerning public officials or other persons who perform functions of a public nature should enjoy, under Article 13.2 of the Convention, a degree of openness to broad debate on matters of public interest, which is essential to the functioning of a truly democratic system. This same criterion applies to opinions or statements of public interest made concerning a person running as a candidate for the Presidency of the Republic, who voluntarily submits to public scrutiny, as well as to matters of public interest about which society has a legitimate interest in remaining informed and in knowing what affects the functioning of the State, affects general interests or rights, or entails significant consequences for society. As established above, there is no doubt that Mr. Nombre159’s statements concerning the company CONEMPA related to matters of public interest (supra para. 92).

99. In this regard, the Criminal Chamber of the Supreme Court of Justice of Paraguay, when it issued the decision of 11 December 2002 (supra para. 69.49) annulling the convictions handed down in 1994 and 1997 and acquitting the alleged victim of all charges and punishment, referred to the nature and relevance of his statements, noting, inter alia, that [t]he statements of Eng. Nombre159—within the political context of an electoral campaign for the nation’s highest office—necessarily constitute, in a Democratic Society directed toward the participatory and pluralistic construction of Power, a matter of public interest. Nothing is more important and public than the discussion and subsequent popular election of the Republic’s highest-ranking official.

100. The foregoing considerations do not mean in any way that the honor of public officials or public figures should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism. Likewise, the reputation of private individuals involved in activities of public interest must also be protected in accordance with the principles of democratic pluralism. (…)

103. Thus, with respect to public officials, persons who perform functions of a public nature, and politicians, a different threshold of protection must be applied, one that is based not on the status of the individual, but on the public-interest nature of the activities or actions of a particular person. Those who influence matters of public interest have voluntarily exposed themselves to more exacting public scrutiny and, consequently, in that sphere are subject to a greater risk of criticism, because their activities leave the private sphere and enter the sphere of public debate. In this regard, within the framework of public debate, the degree to which criticism must be accepted and tolerated by the State itself, public officials, politicians, and even private individuals who engage in activities subject to public scrutiny must be much greater than that applicable to private individuals. This category includes the executives of the company CONEMPA, the consortium entrusted with carrying out a large portion of the construction work on the Itaipú hydroelectric power plant.

104. Based on the foregoing considerations, the Court must determine whether, in this case, the imposition of subsequent criminal liability (responsabilidades penales ulteriores) for the alleged abusive exercise of the right to freedom of thought and expression through statements concerning matters of public interest may be deemed to satisfy the requirement of necessity in a democratic society. In this regard, it must be recalled that criminal law (Derecho Penal) is the most restrictive and severe means of establishing liability for unlawful conduct.

105. The Court considers that, in the proceedings brought against Mr. Nombre159, the judicial authorities should have taken into account that he made his statements in the context of an electoral campaign for the Presidency Nombre01 and regarding matters of public interest, a setting in which opinions and criticism are expressed more openly, intensely, and dynamically, in keeping with the principles of democratic pluralism. In the present case, the adjudicator was required to balance respect for the rights or reputations of others against the value, in a democratic society, of open debate on matters of public interest or concern.

106. The criminal proceedings, the resulting sentence imposed on Mr. Nombre159 for more than eight years, and the restriction on leaving the country imposed for eight years and almost four months—the facts underlying the present case—constituted an unnecessary and excessive penalty for the statements made by the alleged victim during the electoral campaign concerning another candidate for the Presidency Nombre01 and matters of public interest. They also limited open debate on matters of public interest or concern and restricted Mr. Nombre159’s exercise of freedom of thought and expression by preventing him from expressing his opinions during the remainder of the electoral campaign. Under the circumstances of the present case, there was no compelling social interest that justified the criminal penalty, since the alleged victim’s freedom of thought and expression was disproportionately restricted without taking into account that his statements concerned matters of public interest. The foregoing constituted an excessive restriction or limitation, in a democratic society, of Mr. Nombre67’s right to freedom of thought and expression, incompatible with Article 13 of the American Convention.

107. The Court likewise considers that, in this case, the criminal proceedings, the resulting sentence imposed on Mr. Nombre159 for more than eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting Mr. Nombre159’s freedom of thought and expression. In this regard, after being criminally convicted, Mr. Nombre159 was dismissed from the media outlet where he worked and, for a period of time, did not publish his articles in any other newspaper.

108. In light of all the foregoing, the Court considers that the State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention, in relation to Article 1.1 of that treaty, to the detriment of Mr. Nombre67, because the restrictions imposed on his exercise of that right for approximately eight years exceeded the framework established in that article (…)”. (Emphasis not in the original).

Similarly, the case of Nombre162 et al. (Radio Caracas Televisión) v. Venezuela (judgment of 22 June 2015) is of the utmost and considerable interest. In that matter, the Inter-American Court of Human Rights found it proven that a conflict-ridden and tense environment existed in Venezuela as a result of the coup d’état that had occurred, which in turn caused political polarization—the radicalization of the positions of the sectors involved—and contributed to the government’s accusations that private media outlets, including RCTV (Radio Caracas Televisión), were enemies of the government, coup supporters, and fascists. The Court also found it proven that the State of Venezuela sought a way to silence that media outlet—given that it expressed ideas differing from government policies and maintained a position critical of the Presidency of Nombre73—by refusing, in the year 2007, to renew its concession to use the radio-frequency spectrum (concesión de uso del espectro radioeléctrico), which it had held since its founding in the year 1953.

This clearly curtailed, indirectly or covertly, its ability to continue operating and disseminating dissenting information, in clear violation of freedom of expression. Significantly, in that judgment the Inter-American Court of Human Rights held that the decision had been preceded by various public statements made by both Nombre138 Nombre01 and other officials, who created an atmosphere of intimidation. In particular, it indicated that the then Nombre138 Nombre163 made, among others, the following statements:

“(…) 75. (…) a) the statement made by Nombre138 Nombre163 on 9 June 2002 on his program “Aló Presidente,” in which he asserted: “television stations and radio stations, broadcasters, even when privately owned, merely make use of a concession; the State is the owner [...], and the State grants permission to a group of business owners who request it so that they may operate, so that they may transmit the image through that pipeline, but the State retains control over the permission. It is as though someone wanted to use a State-owned water pipeline to supply water to a town, and the State granted that person permission. [...] Suppose that […] we give that person permission to use the water pipeline [and] he begins poisoning the water. […] [We must] immediately not only withdraw his permission, but put him in prison. He is poisoning people; that happens—the case [and] the same logic, the same explanation, apply equally to a television channel”; b) the statement made by Nombre138 Nombre163 on 12 January 2003 on his program “Aló Presidente,” in which he stated: “The same applies to these owners of television channels and owners of radio stations; they too have a State concession, but the signal does not belong to them.

The signal belongs to the State. I want to make that perfectly clear; I want to make it perfectly clear because, if the owners of these television and radio stations persist in their irrational effort to destabilize our country, to attempt to lay the groundwork for subversion, because it is subversion, unquestionably, […] it is fascist subversion in this case, and it is encouraged by the media, by these gentlemen whom I have mentioned and others whom I will not mention. I hereby give Venezuela advance notice. I have ordered a review of the entire legal procedure through which these gentlemen were granted their concessions. We are reviewing it, and if they do not return to normality in their use of the concession, if they continue using the concession to try to break the country or overthrow the government, then I would be under an obligation to revoke the concession they were granted to operate the television channels”; c) the statement made by Nombre138 Nombre163 on 9 November 2003 on his program “Aló Presidente,” in which he stated: “I will not allow you to do it again, […] you: Globovisión, Televén, Venevisión, and RCTV.

Nombre142 or last Nombre142, [Minister] Nombre74, I gave you an order: you must have a team of analysts and observers watching all channels simultaneously 24 hours a day, and we must be clear—I am clear—about the line they must not cross, and they must know it; it is the line established by law. The moment they cross the line established by law, they will inevitably be shut down to ensure peace for Venezuela, to ensure tranquility for Venezuela”; and d) on 9 May 2004, Nombre138 Nombre163 stated on his program “Aló Presidente”: “[H]ere, those who violate the right to information and the right to freedom of expression are the owners of the private media; there are some exceptions, but above all the major television channels Venevisión, Globovisión, RCTV […] the owners of these media outlets are involved in coup-mongering, terrorism, and destabilization, and I can say at this point that I no longer have any doubt that we may properly declare the owners of those media outlets enemies of the people of Venezuela (…)

80. (…) a) the statement made by Nombre138 Nombre163 on 28 December 2006, during his year-end address to the Armed Forces, in which he stated: “There is a gentleman out there, one of those representatives of the oligarchy, who wanted to be Nombre138 of the oligarchy, and whom those adeco-copeyano governments later granted concessions to operate a television channel, and now he goes around saying that the concession is perpetual. His television concession expires in March; it expires in March, so he had better start packing his bags and figuring out what he is going to do beginning in March. There will be no new concession for that coup-supporting television channel called Radio Caracas Televisión. The concession is ending; the measure has already been drafted, so you had better start getting ready and shutting down the equipment. No media outlet serving coup-mongering, acting against the people, against the nation, against national independence, and against the dignity of the Republic will be tolerated here. Venezuela must be respected. I am announcing this before the date arrives so that they will stop telling their little story that, no, it is 20 more years. I’m telling you, chirulí, 20 more years would be nice. It’s over for you; it’s over (…)

• d)on 8 January 2007, at the ceremony appointing a new ministerial cabinet, Nombre138 Nombre163 once again addressed RCTV’s concession, stating: “Nothing and no one will prevent the implementation of the decision not to renew the concession of that television channel, which everyone knows. Nothing and no one will be able to prevent it (…)”.

Likewise, on this occasion and in the following terms, the Court explained how, in this particular case, Article 13.3 of the American Convention on Human Rights was violated:

“(…) 148. In this regard, the Court has previously stated that the media are genuine instruments of freedom of expression (libertad de expresión), serving to give effect to this right and playing an essential role as vehicles for exercising the social dimension of this freedom in a democratic society; it is therefore essential that they convey the broadest possible range of information and opinions. Indeed, this Court agrees with the Commission that media outlets are generally associations of persons who have come together to exercise their freedom of expression on an ongoing basis. Consequently, it is unusual today for a media outlet not to be registered in the Name141 of a legal entity (persona jurídica), since producing and distributing information as a commodity requires an organizational and financial structure capable of meeting the demands for information. Similarly, just as labor unions are instruments through which workers exercise the right of association (derecho de asociación), and political parties are vehicles through which citizens exercise their political rights (derechos políticos), the media are mechanisms through which those who use them to disseminate their ideas or information exercise the right to freedom of expression. (…)

151. Consequently, the Inter-American Court considers that restrictions on freedom of expression frequently materialize through actions by the State or private parties that affect not only the legal entity constituting a media outlet, but also the numerous natural persons (personas naturales), such as its shareholders or the journalists who work there, who engage in acts of communication through it and whose rights may also be violated. (…)

152. In this regard, it should be noted that today a significant portion of journalism is practiced through legal entities, and the Court reiterates that it is essential for journalists working at these media outlets to enjoy the protection and independence necessary to perform their duties fully, since they are the ones who keep society informed, an indispensable requirement for society to enjoy full freedom. This is especially so given that their activity is the primary manifestation of freedom of expression of thought and is specifically guaranteed by the American Convention. (…)

1.3. Indirect restrictions (restricciones indirectas)—scope of Article 13(3) of the Convention 161. In the present case, it has been argued that there may have been an indirect restriction on the right to freedom of expression. The Court therefore emphasizes that Article 13(3) of the Convention expressly addresses such a situation by providing that “[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means intended to impede the communication and circulation of ideas and opinions.” This Court considers that the scope of Article 13(3) of the Convention must result from reading it together with Article 13(1) of the Convention, in the sense that a broad interpretation of this provision allows it to be understood as specifically protecting the communication, dissemination, and circulation of ideas and opinions, thereby prohibiting the use of “indirect methods or means” to restrict them.

162. In this regard, the Court notes that the purpose of this paragraph is to provide examples of subtler forms by which State authorities or private parties may restrict the right to freedom of expression. Indeed, in previous cases this Court has found indirect restrictions resulting, for example, from a decision that rendered “legally ineffective the nationality certificate” of the majority shareholder of a television channel, or from “the criminal proceedings, the resulting sentence imposed […] for more than eight years, and the restrictions on leaving the country for eight years” against a presidential candidate.

163. Moreover, the list of restrictive means set forth in Article 13(3) is not exhaustive, nor does it preclude consideration of “any other means” or indirect methods arising from new technologies. In this regard, Article 13 of the Declaration of Principles on Freedom of Expression identifies other examples of indirect methods or means. (…)

Likewise, during the public hearing, expert witness (perito) Nombre75 referred to other possible forms of indirect restriction related to: i) “advertising, [since] States are major advertisers and […] providing extensive advertising or withdrawing it can be significant and, as the case may be, may create a kind of financial strangulation for media outlets that essentially depend on advertising”; or ii) “taxation [in] cases [where] companies […] have been burdened with taxes” in order to cause difficulties or send messages to the media outlet.

164. The Court also recalls that, for a violation of Article 13(3) of the Convention to be established, the method or means must effectively and indirectly restrict the communication and circulation of ideas and opinions. In addition, the Court reiterates that Article 13(3) of the Convention imposes obligations on the State to guarantee rights (obligaciones de garantía), even within relationships among private parties, since it encompasses not only indirect governmental restrictions but also private controls that produce the same result. In this regard, the Court emphasizes that an indirect restriction may have a deterrent, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which in turn prevents public debate on matters of societal interest. (…)

170. (…) This Court considers that, because the radio-frequency spectrum (espacio radioeléctrico) is a scarce resource with a finite number of frequencies, the number of media outlets able to access those frequencies is limited. It is therefore necessary to ensure that this number of outlets represents a diversity of perspectives or positions regarding information or opinion. The Court emphasizes that the pluralism of ideas in the media cannot be measured by the number of media outlets, but rather by whether the ideas and information transmitted are genuinely diverse and addressed from differing perspectives, without a single perspective or position prevailing. The foregoing must be taken into account in the processes for granting or renewing broadcasting concessions or licenses (concesiones o licencias de radiodifusión). In this regard, the Court considers that any limits or restrictions arising from broadcasting regulations must take into account the guarantee of media pluralism, given its importance to the functioning of a democratic society. (…)

3. Alleged indirect restriction on freedom of expression under Article 13(3) of the American Convention (…)

193. To analyze the foregoing account of the statements, they must necessarily be read and considered together, because, taken in isolation, they could not independently constitute acts violating the American Convention. The fact that several officials made statements to the same effect during the same period demonstrates that these were not isolated statements. In light of the foregoing, the Court will assess their content to determine whether the decision was reached for reasons or motives other than its stated purpose, because, as the Court has already indicated, consideration of motive or purpose is relevant to the legal analysis of a case, especially when determining whether there was arbitrary action or a misuse of power (desviación de poder) (supra para. 189). First, the Court emphasizes that warnings had been issued since 2002 that the concessions of television channels that did not change their editorial stance would not be renewed (supra para. 75), and that such statements increased as the expiration date of the concessions approached (supra paras. 76 to 78).

Beginning in 2006, several of those statements, made before Communication Nº 0424 and Resolution Nº 002, announced that the decision not to renew RCTV’s concession had already been made and would not be reconsidered or changed (supra paras. 79 to 86). It is also worth emphasizing that these were not merely statements by State officials in various media outlets; publications were also made in national newspapers, and even a book was released, to announce and justify the decision not to renew RCTV’s concession. Accordingly, the Court may conclude, first, that the decision was made well before the concession term expired and that the order was issued to CONATEL and the Ministry for Telecommunications by the Executive Branch.

194. Regarding the actual reasons that purportedly motivated the decision, the statements and publications made by various members of the Venezuelan government identified the following: i) RCTV’s failure to change its editorial stance after the 2002 coup d’état, despite the warnings issued since that year; and ii) the alleged irregular acts committed by RCTV that purportedly resulted in sanctions. Regarding the first reason advanced, the Court considers it essential to state that the right to freedom of expression may not be restricted on the basis of the political disagreement that a particular editorial stance may provoke within a government. As noted above, the right to freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are favorably received or regarded as harmless or a matter of indifference, but especially with respect to those that are unwelcome to the State or any sector of the population (supra para. 140).

As for the alleged irregular acts committed by RCTV that purportedly resulted in sanctions, the Court emphasizes that it is contradictory for allegations and accusations to have been made concerning the purported sanctions while Communication Nº 0424 expressly stated that they did not justify the decision. In particular, the Court emphasizes that, despite the seriousness of the events related to the coup d’état, it was not proven before this Court that domestic proceedings aimed at sanctioning those irregular acts had been undertaken. Accordingly, what occurred during the coup could not be used as grounds for the decision when those acts had not been sanctioned at the time.” 195. At this point, the Court considers it necessary to reiterate the precedent established in another case involving this same media outlet, according to which, in a democratic society, it is not only legitimate, but at times a duty of State authorities, to speak out on matters of public interest.

However, when doing so, they are subject to certain limitations, insofar as they must reasonably, although not necessarily exhaustively, verify the facts on which they base their opinions, and they should do so with even greater diligence than that exercised by private individuals, given their high office, the broad reach and potential effects that their statements may have on certain sectors of the population, and the need to prevent citizens and other interested persons from receiving a manipulated version of particular events. Furthermore, they must bear in mind that, as public officials, they are guarantors of individuals’ fundamental rights and, therefore, their statements may neither disregard those rights nor constitute forms of direct or indirect interference or harmful pressure upon the rights of those seeking to contribute to public deliberation through the expression and dissemination of their views.

This duty of special care is particularly heightened in situations of greater social conflict, disturbances of public order, or social or political polarization, precisely because of the range of risks that such situations may pose to certain persons or groups at a given time.

196. The Court also notes that, of the statements submitted in the present contentious case, only one appears to have mentioned the purpose stated in Communication No. 0424 and Resolution No. 002, namely, the protection of media plurality, while most of the remaining statements coincide in invoking the other statements. This allows the Court to conclude, secondly, that the stated purpose was not the actual one and was given solely to lend an appearance of legality to the decisions.

4. Conclusion regarding the right to freedom of expression.

197. The Court therefore concludes, as it has in other cases, that the facts of the present case involved a misuse of power (desviación de poder), since a lawful State power was used for the purpose of bringing the media outlet’s editorial stance into alignment with the government. The foregoing finding derives from the two principal conclusions that this Court may reach based on the matters described above, namely, that the decision had been made beforehand and was based on the displeasure caused by RCTV’s editorial stance, compounded by the context of the “deterioration in the protection of freedom of expression” established in the present case (supra para. 61).

198. This Court also considers it necessary to emphasize that the misuse of power declared herein had an impact on the exercise of freedom of expression, not only by RCTV’s employees and executives, but also on the social dimension of that right (supra para. 136), that is, on the public, which was deprived of access to the editorial stance represented by RCTV. Indeed, the true purpose was to silence voices critical of the government, which, together with pluralism, tolerance, and a spirit of openness, constitute the inherent requirements of democratic debate that the right to freedom of expression is specifically intended to protect.

199. It has therefore been established that, in the present case, there was an indirect restriction (restricción indirecta) on the exercise of the right to freedom of expression, produced through the use of means intended to prevent the communication and circulation of ideas and opinions, when the State decided that it would reserve the portion of the spectrum and thereby prevent a media outlet that expressed voices critical of the government from participating in the administrative proceedings for the award of licenses or the renewal of its concession. Accordingly, the Court declares that Articles 13.1 and 13.3, in relation to Article 1.1 of the American Convention, were violated to the detriment of Nombre76, Nombre77, Nombre78, Nombre79, Nombre80, Nombre81, Nombre82, Nombre83, Nombre84, Nombre85, and Nombre86. (…)”. (Emphasis not in the original).

This Constitutional Court, for its part, has also had the opportunity to condemn this type of conduct. In Judgment No. 1782-2015 at 11:36 hrs. on February 6, 2015, this constitutional jurisdiction heard an amparo proceeding (recurso de amparo) filed by the producer of a radio program devoted to criticism, commentary, and reporting, which was also reporting on and investigating apparent acts of corruption committed by a deputy. On that occasion, the petitioner alleged that the deputy in question had sent letters bearing the letterhead and seal of the Legislative Assembly, under his signature, to the institutions that purchased advertising and made the program’s continued existence possible, threatening to sue them unless they immediately withdrew that advertising, given that he considered the program to be conducting a smear campaign against him. After analyzing the aforementioned case, this Chamber held on that occasion that the letters sent by the deputy to various public institutions for the purpose of having them withdraw advertising from the petitioner’s radio program—which also constituted the principal financial support that made the radio broadcasts possible and, in turn, provided the livelihood of the persons working on that program—constituted indirect or covert censorship (censura indirecta o velada) of freedom of expression. It did so in the following terms:

“(…) Now, in the case at hand, the respondent sent a letter to several public institutions, using paper bearing the letterhead and seal of the Legislative Assembly, in which he stated:

“(…) 4.- In my particular case, in the clear exercise of my right to protect my personal, professional, and moral integrity, I will bring a criminal complaint (querella) against the producer of that radio program and, jointly and severally, against its sponsors, since all you need do is monitor the 800 AM frequency promptly at 8 pm and listen, within the same roster of sponsors to which this institution belongs as a sponsor of the program in question, alongside the advertisement that you pay for with public funds, to another advertisement recorded in the voice of Mr. [Nombre141 001] himself, in which he asks citizens whether they believe a lying Deputy who is under investigation for forgery and fraud, who aspires to graduate as an attorney through irregular means, who has been reported by the TSE for attempting to obtain millions in funds through the use of forged documents, along with other unfounded allegations, with the radio producer, under the protection of his sponsors, recklessly pressuring the Attorney General to take action against the undersigned in order to avoid impunity, as though the Head of the Public Prosecution Service were deliberately covering up a series of crimes committed by this public servant.

1. 5Out of the consideration you deserve, I respectfully give you notice of this matter and urge you to consider, as a responsible precautionary measure (medida cautelar), the possibility of taking off the air the institutional advertising for which you pay on this radio program while we resolve before the courts the criminal complaint we are about to file, so as not to embroil this distinguished institution in litigation or harm the favorable image that Costa Ricans have of it—an image that must be protected and should not become entangled in matters so deplorable and unrelated to your honorable work—whereupon, at the request of the undersigned, my attorneys would immediately abandon any potential joint and several claim extending to this public entity. (…)” (Excerpt from the letter addressed to Correos de Costa Rica S.A., submitted by the petitioner; emphasis not in the original).

The exhortation sent to the public institutions for the purpose of having them withdraw advertising from the protected party’s radio program falls within the category of indirect censorship of freedom of expression for several reasons.

First, advertising provides the principal financial support that enables radio programs to be broadcast and, ultimately, provides the livelihood of the persons working on that program. It is evident that limiting the program’s revenue also harms—or even eliminates—it, to the detriment of both freedom of expression and freedom of information. The situation described is even more serious in the case of small media outlets, such as local newspapers or small radio stations, whose financial stability may depend to a large extent on government advertising. In the Nombre66 case, the Inter-American Court ruled on economic threats to freedom of expression:

“129. Finally, although the criminal penalty of day-fines (días-multa) does not appear excessive, the criminal conviction imposed as a form of subsequent liability (responsabilidad ulterior) established in the present case is unnecessary. Additionally, the facts under the Court’s examination show that fear of a civil penalty, in light of the former Attorney General’s claim for extremely high civil damages, may clearly be as intimidating and inhibiting—or more so—for the exercise of freedom of expression as a criminal penalty, insofar as it has the potential to jeopardize the personal and family life of anyone who reports wrongdoing by a public official, with the evident and detrimental result of self-censorship, both for the person affected and for other potential critics of a public servant’s conduct.” Second, a deputy, Nombre01, is not an ordinary citizen, but holds particular political power because of his influence over the passage of bills, in which numerous private and public interests are involved.

Therefore, a recommendation that advertising be withdrawn from a radio program, or the withdrawal itself, when issued by an official occupying a particular position of political power and motivated by his disagreement with criticism of him disseminated by a particular media outlet, constitutes a covert form of intimidation that not only directly affects the radio program in question but also sends an intimidating message to the other media outlets, fostering an environment hostile to the freedoms of expression and information that are essential in a democratic system. In the sub iudice, that threat even produced concrete effects, insofar as, according to the evidence submitted by the claimant, the ICAA advertising placement scheduled for the period from October 15 to November 15, 2014, was suspended while the respondent’s official letter was being answered. Had the other entities to which the respondent addressed his official letter acted in the same manner, this would have seriously affected the financial stability of the aforementioned radio program, all originating in a public official’s dissatisfaction with the criticism broadcast on that program.

The foregoing does not mean that the alleged violation of the respondent’s honor, or the issue of those who might ultimately be responsible for it, is of little importance. Quite the contrary, the respondent’s complaint is sufficiently significant that the legal system has established appropriate and reasonable procedural avenues both to defend the honor of the affected person—for example, through criminal proceedings—and to ensure the accuracy of the information disseminated, through the right of correction and reply (derecho de rectificación y respuesta).

Now then, the clarifying notes sent by the respondent last October to the public institutions do not affect this Chamber’s reasoning. On the one hand, they are actions that occurred after notice was served that these proceedings had been instituted—the notes were delivered to those institutions on 7 y 8 de octubre de 2014, whereas notice was served on 6 de octubre de 2014. On the other hand, the Chamber observes that, although those notes clarified that the “…previous letter sent regarding this matter did not necessarily seek to impose upon you the obligation to withdraw your advertising from that program…,” the institutions were also cautioned, once again on the basis of the criticism directed at the respondent:

“5.- I would respectfully remind you of your duty of care, understood as exercising greater oversight over the resources that you allocate to publicity, advertising, or information in the media, while maintaining at least a minimum level of monitoring that allows you to ascertain, as in the case of the CD that I am providing to you [which contains an edition of the program “Rompiendo El Silencio”], the nature of the statements made during the programming in which you place advertising.” (Excerpt from the note addressed to the Instituto Nacional de Aprendizaje, submitted by the respondent).

Lastly, it should be noted that public officials may indeed express themselves on matters of public interest. However, they are guarantors of fundamental rights, and therefore the statements they make must not become a form of direct or indirect censorship. Once again, the Inter-American Court of Human Rights is quoted:

“139. In a democratic society, it is not only legitimate but, on occasion, a duty of state authorities to speak out on matters of public interest. However, when doing so, they are subject to certain limitations insofar as they must reasonably, though not necessarily exhaustively, verify the facts on which they base their opinions, and they should do so with even greater diligence than that exercised by private individuals, given their high office, the broad reach and potential effects that their statements may have on certain sectors of the population, and the need to prevent citizens and other interested persons from receiving a manipulated version of particular facts. Furthermore, they must bear in mind that, as public officials, they occupy a position as guarantors of individuals’ fundamental rights and, therefore, their statements may neither disregard those rights nor constitute forms of direct or indirect interference or harmful pressure upon the rights of those seeking to contribute to public deliberation through the expression and dissemination of their thoughts. This duty of special care is particularly heightened in situations of increased social conflict, disturbances of public order, or social or political polarization, precisely because of the range of risks that such situations may pose to particular persons or groups at a given time.” (Case Nombre164 et al.)

In conclusion, the Chamber finds that the respondent has every right to defend his honor and reputation through the legal mechanisms provided for by the Constitution and the law, including the right of correction and reply (derecho de rectificación y respuesta) and a private criminal complaint (querella) for the offenses of insult, slander, and defamation regulated by the Código Penal. In that regard, sending a note to the program’s sponsors asking them to consider withdrawing their sponsorship because of the program’s negative content concerning his public image constituted indirect censorship—in the terms set forth in the above-cited case law of the Inter-American Court—of the radio program “Rompiendo El Silencio.” In making this assessment, particular weight is given to the fact that the respondent holds a position of political power by virtue of his office as a member of the Legislative Assembly (Diputado de la República), and that his letter did in fact cause an adverse effect beyond a mere complaint, since it was established in the record that it affected one of the sponsors, which temporarily suspended its advertising (ICAA). Consequently, this aspect of the petition is granted (…)”. (Emphasis not in the original).

The following year, that is, during 2016, the Constitutional Chamber heard another amparo proceeding (recurso de amparo) that referred to a different and indirect means of infringing freedom of expression; that proceeding, in turn, was decided by Voto No. 15220-2016 at 16:00 hrs. on 18 de octubre de 2016. On that occasion, the petitioner, in his capacity as director of a nationally circulated periodical, alleged that, because of a series of news reports published concerning various irregular actions carried out by a banking entity, the entity’s directors decided to manipulate, pressure, and attempt to silence the media outlet by gradually reducing the advertising placed in the newspaper’s pages. After analyzing and examining the arguments put forward by both parties, as well as the evidence submitted, this constitutional court found it established that the aforementioned media outlet had indeed been subjected to covert or indirect censorship by a public official “(…) in reaction to its editorial stance, for the sole purpose of ‘prompting’ a change; that is, manipulating the outlet to bring it closer to his objectives, whether by securing a meeting with one of the outlet’s owners or obtaining greater space for the Banco’s account in response to the questions raised.

All of this is unquestionably detrimental to Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Constitution (…)”. Furthermore, on that occasion this jurisdiction emphasized that advertising was considered the fundamental source of financial support under the operating model of media outlets, since it enabled the publication or dissemination of their content and, consequently, provided the livelihood of the people working for them. In that judgment, this Chamber expressly stated the following:

“(…) VII.- It is appropriate to examine this matter of prior censorship (censura previa) in greater depth in order to resolve the case under review, following the approach already established in judgment 2015-1782. In this regard, Article 13, paragraph three, of the American Convention clearly states:

“3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means intended to impede the communication and circulation of ideas and opinions.” In this regard, censorship may be direct—for example, the direct prohibition of a particular publication—or indirect (also known as soft censorship or subtle or covert censorship)—for example, the use of various means to intimidate and thereby prevent publication. The Convention provides a non-exhaustive list of instances of censorship through indirect means (controls over paper, frequencies, etc.) and concludes with the general rule, namely, “…or by any other means intended to impede the communication and circulation of ideas and opinions.” By way of example, mention may be made of the Nombre65 case, in which the Inter-American Court found that a decision stripping Mr.

Nombre65’s nationality certificate of legal effect—among other acts—constituted an indirect means of restricting his freedom of expression. Also of interest in comparative law is the judgment in “Editorial Río Negro v. Provincia de Neuquén” (5/09/07), in which the Supreme Court of Justice of the Nation (Argentina), after the Executive Branch of the Provincia de Neuquén temporarily withheld government advertising from that media outlet without demonstrating the reasonableness of the measure, also ruled against the indirect infringement of freedom of the press through economic means: “A State’s first option is whether or not to advertise, and that decision remains within the scope of state discretion. If it decides to advertise, it must do so in accordance with two constitutional criteria: 1) it may not manipulate advertising by granting it to and withdrawing it from particular media outlets on the basis of discriminatory criteria; 2) it may not use advertising as an indirect means of impairing freedom of expression. It therefore has many distributive criteria available to it, but whichever criterion it uses, it must always maintain a general minimum allocation to prevent distortions.”

VIII.Now then, it is of utmost importance in this particular case to note that advertising provides fundamental financial support under the current operating model of mass media, since it enables the publication or dissemination of their content and, ultimately, provides the livelihood of the people who work for that outlet. It is evident that limiting the revenue of a media outlet (in this case, a print outlet) may also harm it—or even eliminate it—to the detriment of both freedom of expression and freedom of information. (…)

A clarification must nevertheless be made in order to adapt the foregoing to the particular circumstances of this case. The manager of the respondent Banco argues that it would be improper for the Chamber to dictate how a matter vital to the Banco’s commercial operations—namely advertising—must be managed, and on this point he is correct. The Chamber understands that the legal status of the Banco Nacional de Costa Rica within the state administrative structure must be taken into account, since it is an institution with constitutionally recognized autonomy that has been entrusted with carrying out an unquestionably commercial activity, moreover in competition with private entities. Within that dynamic, the commercial advertising undertaken by state-owned enterprises is and clearly must be based on technical and objective decisions and assessments, and a body charged with protecting Fundamental Rights, such as this Chamber, may not interfere in such matters.- That is not the source of the constitutional and Human Rights dispute analyzed here, as demonstrated by the general position set out in the 2012 report of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, entitled “Principles on the Regulation of Government Advertising and Freedom of Expression.” That document clearly establishes the need for the various state institutions to have plans that are technically and objectively designed to serve their communication purposes, and this is reiterated in the investigation’s legislative file, where the members of the Legislative Assembly and the petitioner himself affirm that the particular status of public enterprises must be taken into account and that technical and objective advertising decisions must be respected. In this regard, the petitioner himself specifically states:

“the criterion for distributing advertising placements (pauta publicitaria) must be based on market criteria; media plans must be designed by professionals in the field; and whatever funds are necessary to implement that media plan must be invested, so that what the state-owned enterprise competing in the market wishes to communicate is communicated efficiently.” (p. 18-36 of Legislative File 20066) The problem in this case arises, rather, when public enterprises depart from that course to manage their advertising placement according to purposes unrelated to objective and technical considerations and incompatible with the constitutional framework of fundamental rights.—It is at that point that the participation of this Chamber becomes fully justified, and that is what this amparo proceeding (recurso de amparo) seeks to confirm or rule out.

IX—The specific case.—The protected party (amparado) states that the respondent has used his influence and his position as General Manager of Banco Nacional de Costa Rica to attempt to pressure Diario La Nación into altering published articles and reports; he asserts that this pressure took the form of a gradual reduction in advertising placement and its virtual reduction to zero in recent months. Based on the proven facts and the recital concerning the analysis of evidence (considerando sobre análisis de prueba), the Chamber finds it established both that Banco Nacional reduced its advertising in the newspaper La Nación following the publication made in late February, particularly during June and July, and the reasons underlying that reduction.—In this latter regard, as indicated above, the statements made by the respondent official himself before the various bodies that inquired into his conduct are sufficiently clear.—In all of them, the official expressed dissatisfaction with the manner in which the media outlet reported, during February, March, April, and May 2016, on matters concerning the respondent banking institution in connection with the LATCO case; actions of the Bank’s Board of Directors; and the BNCR’s involvement in the BICSA case.

As recounted by the petitioner and confirmed by the respondent Manager, this dissatisfaction reached its peak with the latter case, because it was believed that the newspaper was disregarding the Bank’s responses and omitting important information, all of which could result—and in fact did result—in substantial expenditures by the Bank to maintain minimum levels of confidence in its condition. It was because of that case and its allegedly serious consequences for the Bank that the respondent Manager ordered the publication, on 13 de mayo de 2016, of a paid advertisement in two other national print media outlets to respond to the cited La Nación publications and publicize what, in his view, was the true situation surrounding the BICSA case. This further worsened the situation, adding bitter editorials by the media outlet and responses from the Bank in the same tone to the dispute. It was at this point that the Manager decided to “have a conversation” with the media outlet’s representatives and, concomitantly and in the meantime, ordered a pause—which he called an “impasse”—in advertising placement in the newspaper La Nación; that pause ended, in his own words, after the Director of the media outlet met with him.

These facts are recounted consistently both in the petitioner’s brief and in every account provided by the respondent himself before the Bank’s Board of Directors, the Legislative Commission that investigated the case, and the Chamber in the report submitted; above all, they are clearly established by the audio recording submitted by the petitioner.—That said, this Court cannot assess those facts favorably for the respondent when measured against the constitutional framework of freedom of expression and the right to information. It is constitutionally reprehensible that the General Manager of a public bank—that is, a public official—issued an order to withdraw advertising from a particular print newspaper without a valid objective and technical basis, but instead because of his dissatisfaction with the manner in which news stories and reports concerning the activities and condition of the banking institution he represents were prepared.

The Court understands that the foregoing constitutes indirect censorship (censura indirecta), a clear attempt to influence the media outlet’s news content, and that it also sends an intimidating message to other media outlets, fostering an environment hostile to the freedoms of expression and information that are essential in a democratic system. Because the conduct came from a public servant, it is wholly unacceptable in light of the necessary respect for and adherence to what one Deputy aptly defined as “democratic logic,” to whose realization institutions, including public enterprises, must of course contribute.—(p. 383 of Expendiente Legislativo 20.066) That logic requires the fullest possible realization of freedom of expression and the right to information, without entailing the abandonment of legally established means of challenging news reports or opinions that may unfairly affect the work of institutions.

X.Indeed, if, in the respondent’s opinion, the media outlet was required to afford him the proper right of reply (derecho de respuesta) when he requested meetings with the company’s representatives because of the significance of what had been published, he could and still may file whatever legal actions he deems appropriate to determine whether his honor, or the banking institution he represents, was harmed and whether those who may have exceeded the limits of freedom of expression bear any liability. He also had the option provided by the legal system of initiating rectification or reply proceedings (proceso de rectificación o respuesta) on behalf of persons harmed by inaccurate or offensive information published to their detriment (Articles 14 of the American Convention and 66 et seq. of the Ley de la Jurisdicción Constitucional). Nevertheless, the respondent first chose to publish explanatory statements as paid advertisements in other print media outlets and did not do so in Diario La Nación.

He thereby disregarded the formal rectification and reply mechanism with respect to Diario La Nación or any other Grupo Nación press outlet, and did so entirely deliberately, as he stated before the Commission: “…(…) some of you were asking why I did not resort to the courts. Am I going to file an application with the Sala Cuarta asking them to grant me a right of reply? We would still be at the admissibility stage.” (p. 383 Expediente Legislativo 20.066). These are unfortunate considerations, not only because they do not reflect the true nature of rectification and reply proceedings—which, contrary to his assertion, have a highly expedited admissibility process—but also because they seek to justify the use of self-help measures (vías de hecho) or acts of pressure in place of legal remedies to secure a change in the content of the newspaper’s reports.—On this issue, it bears emphasizing, as previously stated, that such attempts at direct or indirect censorship have no place in our society or under the constitutional rule of law (estado constitucional de derecho).

XI.Conclusion.—Accordingly, this Chamber finds that a state official committed an act of indirect censorship for the purpose of restricting the freedom of information that the protected media outlet must enjoy, by reducing advertising placement without technical or objective grounds and, instead, with the clear intention of influencing the press outlet’s news content in relation to its reports concerning Banco Nacional de Costa Rica and its subsidiaries.

In this case, the conduct clearly described in legal scholarship as indirect censorship has been established: a form of unlawful harassment of a media outlet by a public entity that not only infringes freedom of expression, as stated above, but also citizens’ right to have access to mechanisms providing truthful information in a democracy. It is a perverse and antidemocratic use of state power to steer opinion through a system of “reward or punishment” directed at those who exercise the constitutionally and conventionally guaranteed freedoms of the press and expression. On this subject, the Human Rights Commission and the most authoritative scholarship have emphatically stated that “the right of expression may not be restricted by indirect avenues or means either, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions.” Mechanisms of direct or “indirect” censorship are clearly prohibited by Article 13.3 of the American Convention and have received attention from various bodies of the Inter-American system.

Interpreting the cited Article 13.3, the Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights (hereinafter, the “IACHR”) establishes in Principle 5 that “[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion, or information transmitted through any means of oral, written, artistic, visual, or electronic communication must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” Principle 13 further states that “the exercise of state power and the use of public funds; the granting of customs-duty privileges; the arbitrary and discriminatory allocation of official advertising and government loans; and the granting of radio and television frequencies, among other practices, for the purpose of pressuring and punishing, or rewarding and favoring, journalists and media outlets based on their editorial positions, violate freedom of expression and must be expressly prohibited by law.” For its part, the Inter-American Court has stated that “any act of public authority that entails a restriction on the right to seek, receive, and impart information and ideas, to a greater extent or by means other than those authorized by the Convention itself, is illegitimate.

It is widely recognized in legal scholarship that indirect censorship is ordinarily concealed behind ostensibly legitimate actions that are nevertheless undertaken for the purpose of conditioning individuals’ exercise of freedom of expression. When that occurs, Article 13.3 of the Convention is violated. As the Inter-American Court of Human Rights (hereinafter, the “Inter-American Court” or the “Court”) has held, it violates freedom of expression.” (Inter-American Court of Human Rights. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of 13 de noviembre de 1985, Series A No. 5, para. 55.)

These restrictive mechanisms were also analyzed by the Office of the Special Rapporteur for Freedom of Expression of the IACHR, which, in its 2003 Annual Report, drew attention to these “obscure obstructions, imposed silently, [which] do not lead to investigations or warrant widespread condemnation.” The issue was also addressed by that office in its 2008 and 2009 Reports.

The case law (jurisprudencia) of the Inter-American Court, for its part, has on various occasions condemned the adoption of state measures constituting indirect means of restricting freedom of expression. Thus, for example, it has condemned mandatory membership in a professional association (colegiatura obligatoria) for journalists, the arbitrary use of the State’s regulatory powers when used to initiate intimidating actions against the management of a media outlet, or to revoke the nationality of the director of an outlet because of the editorial stance of the programs it broadcasts (Case Nombre65 v. Peru).

The UN, OAS, and OSCE rapporteurs for freedom of expression have also addressed the issue of indirect restrictions on freedom of expression by authorities. For example, in their 2002 Joint Declaration they stated that “governments and public bodies must never abuse their control over public finances in an attempt to influence the content of information disseminated by the press; the placement of advertising must be based on market considerations.” The arbitrary use of official advertising (publicidad oficial) was one of the first mechanisms of indirect censorship addressed by the inter-American system. Indeed, in its 2003 Annual Report, the Office of the Special Rapporteur for Freedom of Expression devoted a special chapter to examining the phenomenon and concluded that “indirect obstruction through state advertising acts as a powerful deterrent to freedom of expression” (IACHR Annual Report OEA/Ser.

L/VI.118. Doc 70, diciembre 2003). As the Office of the Special Rapporteur stated at the time: “this issue warrants special attention in the Americas, where media concentration has historically encouraged the abuse of power by government officials in the The (sic) arbitrary distribution of official advertising, like other mechanisms of indirect censorship, operates upon the various needs that media outlets have in order to function and the interests that may affect them. It is a form of pressure that operates as a reward or punishment intended to condition a media outlet’s editorial stance according to the wishes of the person exerting the pressure. As stated, mechanisms of indirect censorship are often concealed behind the seemingly legitimate exercise of state powers, many of which are exercised at officials’ discretion. In the distribution of official advertising, indirect censorship occurs when such distribution is carried out for discriminatory purposes based on the editorial position of the outlet included in or excluded from that distribution, with the aim of conditioning its editorial position or news coverage.

To determine whether freedom of expression has been violated through the exercise of those powers, it is necessary to analyze the context. That is precisely what has been demonstrated in this constitutional rights proceeding (amparo): the withdrawal of advertising during the first half of 2016, particularly in the months following the publications in late February, occurred within a context of confrontation with the outlet, in which it was established that the strategy was not based on objective criteria but was adopted, in the manager’s own words, to “motivate” the newspaper to change its editorial stance and news coverage, instead of using existing legal mechanisms, such as the right of correction and reply (derecho de rectificación y respuesta), if the information was considered inaccurate or offensive.

In the cases Nombre21 v. Peru. Judgment of 6 de febrero de 2001. Series Nombre143 No. 74, para. 154. Similarly, see Inter-American Court of Human Rights, “Case Nombre144 et al. v. Venezuela.” Judgment of 28 de enero de 2009. Series Nombre143 No. 195, the Inter-American Court has held that “[when] assessing an alleged restriction or limitation on freedom of expression, the Court must not limit itself solely to examining the act in question, but must also examine that act in light of the facts of the case as a whole, including the circumstances and context in which they occurred.” Following the same reasoning, it held that “the enumeration of restrictive means in Article 13.3 is not exhaustive, nor does it preclude consideration of ‘any other means’ or indirect methods arising from new technologies (…). For a violation of Article 13.3 of the Convention to occur, the method or means must effectively restrict, even indirectly, the communication and circulation of ideas and opinions” (OC-5/85 and case Nombre136 against Venezuela).

For its part, the Office of the Rapporteur for Freedom of Expression has repeatedly reported that this type of indirect censorship occurs frequently and that this is due to the absence of legal rules governing the allocation of advertising placements and limiting the discretion of public officials. The same point was made by the Supreme Court of Justice of Argentina in Editorial Río Negro S.A. v. Province of Neuquén, in which the court held that the Province of Neuquén had violated a newspaper’s freedom of expression by eliminating the official advertising it had contracted with the newspaper because of critical coverage. The Supreme Court stated that the Province of Neuquén should establish an appropriate legal framework limiting the discretion of public officials and preventing such arbitrary actions.

Likewise, the Supreme Court of Chile ruled on a complaint filed by Revista Punto Final against the distribution of official advertising by certain ministries. There, the court found that the Chilean legal system grants officials “a broad margin of discretion” and recommended that investment in state advertising be made “according to transparent and non-discriminatory criteria” (case 9148/09). Cases have also arisen in countries such as the United States (El Día v. Nombre165, United States Court of Appeals for the First Circuit), where it was established that the withdrawal of official advertising from the newspaper El Día by the administration of the governor of Puerto Rico, Nombre87, because of criticism that the newspaper had directed at the governor, constituted a clear violation of the right to freedom of expression guaranteed by the First Amendment to the United States Constitution.

In that regard, the Court of Appeals found that “using government funds to punish the political speech of members of the press and seeking to coerce [media outlets into issuing] statements favorable to the government is contrary to the First Amendment.” The Court further found that “clearly established law prohibits the government from conditioning the revocation of benefits [in this case, state advertising] on a basis that infringes constitutionally protected interests” (United States Court of Appeals for the First Circuit, Puerto Rico, case El Día v. Nombre165, decision of 25 de enero de 1999, 165 F.3d 106, p. 110).

It is clear from the foregoing and from the reports of the Office of the Rapporteur for Freedom of Expression that the State has the right to establish and modify its advertising placements, but that it must do so through objective and transparent criteria, established in a planned manner that ensures that the power or funds of the State are not used to discriminate against, manipulate, or directly or indirectly censor the freedom of expression and freedom of the press guaranteed by international conventions and the Constitution (sic). For the foregoing reasons, the application against Banco Nacional de Costa Rica is granted, with the effects to be stated in the operative part (…).” (Emphasis not in the original).

In Judgment No. 8396-2018 at 12:40 hrs., of 25 de mayo de 2018, this Chamber stated:

“(…) I.- Subject matter of the application. The applicant states that the interview entitled ‘1.a domestic violence against men’ was conducted on the program “Café Nacional1” of the public company Radio Nacional de Costa Rica. The applicant alleges that, in response to this program, the Director of Radio Nacional published an article entitled “Bitter Shame,” in which he warned that he would subject the topic of violence against men to prior censorship and prevent it from being discussed again on Radio Nacional. The applicant also complains that the interview was completely deleted from SINART’s Internet portal and Facebook page, thereby violating the right to freedom of expression and thought. Finally, the applicant alleges that the respondent authority carried out retaliatory acts against the protected party (tutelado) [Nombre141 006], since he was removed from the program “Café Nacional” and his position was transferred to the News Department, even though he belongs to the Production Department of Radio Nacional. (…)

V.The specific case. In the matter under examination (sub examine), the applicant claims to have been affected by censorship practiced by the public company SINART, because the respondents stated that radio programs such as the one produced by the applicants would be prevented and, moreover, that program was deleted from the website and Facebook. As part of the alleged censorship, the protected party Nombre166 was removed from the program “Café Nacional” and transferred to the News Department.

In this regard, the Chamber was able to find it proven that on 13 de setiembre de 2016, the radio program “Café Nacional” on Radio Nacional hosted the president of Fundación Instituto de Apoyo al Hombre and the administrative director of Fundación Instituto de Apoyo al Hombre. The program, produced by the protected parties [Nombre141 005] and [Nombre141 006], was broadcast on the 101.5 FM radio frequency and through Radio Nacional’s official page on the Facebook social network. It was also confirmed that the Director of Radio Nacional published the document entitled “Bitter Shame” on his personal Facebook page on 14 de setiembre de 2016. In it, he stated:

“Yesterday, martes 13 de setiembre, on Radio Nacional de Costa Rica, the issue of domestic violence (violencia intrafamiliar) was addressed in a highly regrettable manner, focusing on the violence suffered by men in their homes. The editorializing (sic) of the program left no doubt as to the personal position of the guests and those who hosted (sic) the program. During it, femicides were incredibly (sic) justified, and the violence suffered by women was placed on the same level as that suffered by men. The closure of INAMU was called for, and there was talk of broadcasting this type of program once every 15 days, something that, of course, is not going to happen. I, as Director of Radio Nacional de Costa Rica, was not consulted about addressing this topic; those who know me know that I would never have allowed this interview to be aired. But that does not relieve me of responsibility. During my tenure, I have realized that there is a serious lack of training within the institution regarding Human Rights and how they are addressed in the media, and unfortunately, the workshops that we have been planning since yesterday with institutions such as INAMU, the Defensorio de los Habitantes, the Frente por los Derechos Igualitarios, and the association ACCEDER will be held in response to the harm caused to society by the airing of that interview.

It is my fault for not having acted in advance, for not having made clear the vision of Human Rights that we hold under the current SINART administration, and all I can do is offer my sincerest apologies and promise you, especially (sic) the women who systematically suffer violence simply because they are women, that a situation like this will not happen again. We in the public-service media bear a great responsibility. Every time one of us, the men and women who work in public radio and television, opens a microphone or stands before a camera, we are not expressing a personal opinion based on our beliefs, principles, and values; rather, we speak from within an institution governed by higher principles, public policies, and international treaties. It is not a question of whether I agree or disagree; it is not about what I think. We have THE RESPONSIBILITY, in capital letters, to inform and educate ourselves about the issues that are pillars of the social construction of our present day, and to ensure that neither through action nor omission are anti-human-rights or hate-promoting messages given space in the public media.

We are making the necessary arrangements so that next lunes at 9 de la Nombre142, specialists in equal rights and gender-based violence may join us at the station and explain to our audience why everything said last martes was misguided in its approach, so that we may instead create permanent spaces for the promotion of human rights.” (Underlining added).

That same day, on the Facebook page of Radio Nacional, SINART published its official position regarding what had occurred:

“With regard to the interview conducted yesterday, martes 13 de septiembre, on the program Café Nacional, concerning different forms of domestic violence, the Directorate of Radio Nacional and the General Directorate of SINART clarify the following: The statements made by the guests and hosts of that program, who wrongly justified the violence suffered by thousands of women in our country and questioned the appropriateness of the Instituto Nacional de las Mujeres, INAMU, in no way represent the position of these Directorates. We recognize that the issue of domestic violence must be addressed from various perspectives, but never while disregarding the fact that the root of this problem lies precisely in a patriarchal and sexist structure, and that women and girls are by far the primary victims of violent conduct. This does not mean that we disregard the fact that some men also suffer violence or that there are gaps in the system or mismanagement that affects them.

SINART recognizes the need for the existence of the Instituto Nacional de las Mujeres, and we support its relevance to building an equal and just society and to seeking the eradication of all forms of discrimination and violence suffered by women. We offer our sincerest apologies to the audiences of Radio Nacional and to those who have rightly objected to the approach taken in the interview, and we undertake to rectify the matter by contributing to the proper treatment of the issue through timely and truthful information from SINART’s microphones and screens, in fulfillment of its public-service mission. We are making the necessary arrangements so that next lunes, during the same program, specialists in equal rights and gender-based violence may join us at the station to address the issue from a Human Rights perspective. As the State, and all the more so as a public-service media outlet, we are obligated to enforce the International Conventions against all forms of discrimination and violence against women that our country has signed and undertaken to comply with, such as the Convención de Belem do Rara and the CEDA W.” (Underlining added).

With respect to the matter under consideration (sub lite), the Chamber deemed it proven that the interview with the protected parties (tutelados) was removed from the station’s Facebook timeline and also from the SINART web portal.

It is clear that censorship of freedom of expression may occur openly, particularly in a dictatorship or a weakened democracy. However, especially when actions are taken within a democratic system, censorship frequently manifests itself in subtler and more concealed ways, for example, by affecting the inputs or resources that enable the exercise of that freedom, through the issuance of restrictive guidelines, the exertion of indirect pressure, and so forth. This characteristic of concealed censorship (censura velada)—which is highly dangerous precisely because it is surreptitious or disguised—requires the Courts to rely on what is known as circumstantial evidence (prueba indiciaria) in order to determine whether an act of censorship has occurred.

Applying the foregoing to the matter under consideration, the Chamber finds sufficient grounds to conclude that the statements of the complainants in the amparo proceeding (amparados) were censored and that their fundamental rights were thereby violated. This conclusion follows from the express statements of the Director of Radio Nacional that the repetition of interviews such as that of the protected parties “of course is not going to happen,” and that he “would never have allowed this interview to be aired...,” but that “...a situation like this will not happen again....” The Chamber observes that the respondent party (parte recurrida) makes absolutely clear the censorship that will be imposed on future interviews like the one at issue, as well as the regret that the interview already conducted was not censored. For this Court, there is no doubt that the transcribed statements constitute censorship, especially because they came from the director of the media outlet used to broadcast the interview in question.

More subtle is the statement that it is necessary to make “...clear the vision of Human Rights that we hold under the current SINART administration...” and that “...everything said last martes was misguided in its approach....” SINART’s official statement was equally surreptitious: “We offer our sincerest apologies to the audiences of Radio Nacional and to those who have rightly objected to the approach taken in the interview, and we undertake to rectify the matter by contributing to the proper treatment of the issue through timely and truthful information from SINART’s microphones and screens, in fulfillment of its public-service mission.” These quotations show that SINART seeks to impose its “vision” of Human Rights or to “rectify” the conduct of the protected parties “with timely and truthful information,” on the assumption that the opinions of the complainants are the opposite: untimely and false.

Finally, it was established that the recording of the interview was removed from the station’s Facebook timeline and from the SINART web portal. The Chamber considers that, through this act, the threat of censorship materialized into full censorship, because both the complainants’ freedom of expression and the right of third parties to obtain information and access the interview were impeded.

It must be reiterated that limitations on freedom of expression must be clearly established by law, as provided by the Convención Americana sobre Derechos Humanos:

“Article 13. Freedom of Thought and Expression Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive, and disseminate information and ideas of every kind, regardless of frontiers, whether orally, in writing, in print, in artistic form, or through any other medium of one’s choice.

The exercise of the right provided for in the preceding paragraph may not be subject to prior censorship (censura previa), but only to subsequent liability (responsabilidades ulteriores), which must be expressly established by law and be necessary to ensure:

respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals.

The right of expression may not be restricted through indirect avenues or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or through any other means intended to impede the communication and circulation of ideas and opinions.

Public entertainments may be subject by law to prior censorship solely for the purpose of regulating access to them for the moral protection of children and adolescents, without prejudice to the provisions of paragraph 2.

Any propaganda in favor of war and any advocacy of national, racial, or religious hatred that constitutes incitement to violence or any other similar unlawful action against any person or group of persons, on any grounds whatsoever, including race, color, religion, language, or national origin, shall be prohibited by law (Underlining added).

As noted in the preliminary clarifications, the content of a message may be relevant to limitations on freedom of expression. Thus, it will be relevant only when prohibited by law and when it constitutes “...propaganda in favor of war and any advocacy of national, racial, or religious hatred that constitutes incitement to violence or any other similar unlawful action against any person or group of persons, on any grounds whatsoever, including race, color, religion, language, or national origin.” However, that situation is not present in the matter under examination (sub examine). Furthermore, if the respondents (accionados) consider that the conduct of the protected parties falls within one of these circumstances or those contemplated in paragraph 2 of that provision, the proper course would be to resort to the courts to seek to impose subsequent liability on those persons—through the application of a law, as established by the Convention—and not to attempt to remedy the situation through prior censorship.

The Chamber further recalls that SINART, in its capacity as a public enterprise created by law, has a legal duty to respect political, religious, social, and cultural pluralism and to permit the free expression of opinions, as expressly established in subsections b) and c) of section 4 of the Ley Orgánica del SINART:

“Article 4°—Principles. The activity of SINART, S. A., as a communications system, shall be guided by the following principles: (...)

The separation of information from opinions, as well as the identification of those expressing the latter and their freedom to express them.

Respect for political, religious, social, and cultural pluralism.” Therefore, unless there is an express legal or contractual exception, SINART must respect the discussion of all opinions, including those that the management of the media outlet then in charge considers unpopular, held by a minority, questionable, etc. Apart from the subject addressed in the interview that is the subject of this amparo proceeding (recurso de amparo), it should be noted that countless matters generate contrasting, passionate, and firmly held opinions and responses, some involving indignation or repudiation and others, instead, support and admiration, such as the use of drugs for medicinal purposes, abortion, the rights of the LGTB community, the secularization of the State, public-sector wage policy, pension systems, the establishment of fiscal plans, etc. Reiterating the case law transcribed above, “Freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and it recognizes that a certain degree of abuse is inseparable from the proper exercise of that freedom, on the basis of which the government and the courts must allow an ‘uninhibited, robust, and open’ debate to develop, which may include caustic and vehement expressions and, at times, severe and unpleasant attacks against the government and public officials.” In further support of the foregoing, it is clarified that the interview conducted by the protected parties likewise cannot be censored because of its journalistic approach or the manner in which it was conducted, since neither of those matters constitutes a legal ground for limiting freedom of expression.

The Chamber has no hesitation in reiterating that liability for the exercise of freedom of expression must be subsequent and must be established by law. Thus, if any person considered himself or herself affected by the statements made during the interview that is the subject of this proceeding, whether by the moderators or the interviewees, that person could assert his or her rights before the ordinary courts of justice. It is, however, entirely improper for the Administration to depart from the principle of legality and seek to restrict the exercise of freedom of expression through censorship, as occurred in the case under review (sub examine).

VI.A second issue related to censorship is the transfer of the protected party Nombre166 to the Contrapunto team. The case record established that he was transferred to that unit, as communicated to him in official letter PE-DG- 052-2017 of February 24, 2017, and that there was a clear temporal proximity to the other events described in the preceding section. The open dispute between the Administration and the protected party Nombre166 was also brought to light; he communicated his disagreement with the actions of the respondents in an email dated September 20, 2016, in which he stated:

Greetings, Nombre167. Allow me to disagree with what you say, because I personally consider that: CENSORSHIP: is our director Nombre88 stating on his Facebook page: “those who know me know that I would never have allowed this interview to be broadcast” (...) CENSORSHIP: is the Director of Radio Nacional having “suggested” that we space out the invitations extended to the attorney Nombre89 because of her views regarding issues such as abortion and unions between members of the sexually diverse population, even though she did not address those topics on our program.” Thus, there are sufficient indications of the censorship that occurred and of the rift between the Administration and the protected party. In this regard, although the respondent asserted that this was “a complete reorganization of the resource,” the fact remains that it failed to submit evidence that would have enabled the Chamber to reach the same conclusion. The evidence it provided concerned the reassigned duties—which fell within a journalist’s job profile—and certification of the amparo petitioner’s salary.

The Chamber reiterates that, in matters of constitutional review, once clear indications of censorship have been established ab initio, the opposing party bears an evidentiary burden that must lead to the conclusion that the actions were not of that nature, particularly where the respondent is better positioned to provide evidence in the case (shifting burden of proof (carga dinámica de la prueba)), since the Administration has extensive information and public resources at its disposal to rule out any discrimination or violation of a fundamental right. Nevertheless, in the case under review, the respondent fails to rebut the petitioners’ grievance with reliable evidence. Accordingly, taking into account the provisions of the aforementioned subsections b) and c) of section 4 of the Organic Law of SINART (Ley Orgánica del SINART), which expressly require that public enterprise to respect political, religious, social, and cultural pluralism and to permit the free expression of opinions, it is clear that this case involved a form of covert censorship through the reassignment of a journalist to a position that limited or eliminated his influence over the content broadcast, all of this occurring after or because of the aforementioned statements made in the course of his journalistic work.

The foregoing is even more significant because covert censorship exerts a form of surreptitious intimidation or coercion upon the rest of the journalistic staff of the public enterprise SINART. Their freedom of the press is thereby threatened by the possibility of reprisals arising from the free exercise of journalism when opinions are expressed that are not shared by the management of the media outlet under the incumbent government; this environment fosters the scourge of self-censorship to the detriment of journalists, because their job security could compel them to avoid reprisals. This likewise affects the ultimate recipient of journalistic services—the public—whose ability to form its own well-founded judgment is thereby diminished because it is deprived of exposure to a diversity of news content and viewpoints.

VII.By virtue of the foregoing, the proceeding is granted, with the effects set forth below. Given that the harmful acts are attributable solely to SINART, the judgment applies only to that entity. (…)

Therefore:

The proceeding is granted solely against SINART. Nombre90, in his capacity as Nombre138 Ejecutivo of the Sistema Nacional de Radio y Televisión S.A., or whoever holds that position in his stead, is ordered to refrain from again engaging in the conduct that provided grounds for granting this amparo proceeding. In addition, that respondent is ordered, within TWENTY-FOUR HOURS from notification of this judgment, to post the September 13, 2016 interview from Radio Nacional de Costa Rica’s “Café Nacional” program, which is the subject of this proceeding, as well as the September 19, 2016 interview (the one conducted with INAMU and ACCEDER), on SINART’s Facebook page, where it shall remain pinned to the wall for at least one month, and on the homepage of its website, where it must remain visible on the front page or “landing page” for the same period. Furthermore, the respondent is ordered to reinstate the protected party Nombre166 immediately to the position he held at the time of the events, should that protected party express his desire to that effect; for this purpose, the respondent is ordered to communicate the Chamber’s ruling immediately to the amparo petitioner Nombre166.

Justices Nombre91 and Nombre92 provide different reasons. Justice Nombre91 adds a separate note. The foregoing is ordered with the warning that failure to comply could constitute the offense defined in Article 71 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), which provides that anyone who receives an order issued in an amparo proceeding that he or she must comply with or cause to be complied with, and who fails to comply with it or cause it to be complied with, shall be punished by imprisonment for three months to two years or by a fine of twenty to sixty days, provided that the offense is not subject to a more severe penalty. Sistema Nacional de Radio y Televisión S.A. is ordered to pay the costs and the damages and losses caused by the events forming the basis of this declaration, which shall be assessed during enforcement of the judgment before the contentious-administrative jurisdiction.

Personal service shall be made upon Nombre93, in his capacity as Nombre138 Ejecutivo of the Sistema Nacional de Radio y Televisión S.A., or whoever holds that position in his stead. Justice Nombre94 dissents and would grant the proceeding in part. (…). (Emphasis not in the original).

For its part, in Voto No. 10961-2020 at 10:05 hrs. on June 16, 2020, this Court stated as follows:

“(…) I.- Subject matter of the proceeding.- The petitioner seeks protection of the right to freedom of the press, because it considers that the respondent entity issued a ruling that unlawfully restricts the protected news outlet’s freedom of information and freedom of the press by ordering it to remove from its databases the image used in a news report of public interest. (…)

V.The Chamber considers that when these rights conflict, as in the present case (image rights and freedom of the press), given the institutional nature of the right to information, and provided that the use of the image accompanying the news report is truthful and does not impair the dignity of the holder of that right, preferential weight must be given to the right to freedom of the press. Precedents along the same lines can be found in Spanish case law (STC 165/1988 and STC 59/1989), in which the Spanish Constitutional Court, in various cases, balanced the rights in favor of freedom of information when it conflicted with other fundamental rights, using the institutional nature of the right to information as its central argument. Similarly, when balancing these two rights, the Spanish Supreme Court has stated:

“The balancing technique requires an assessment of the abstract weight of the respective fundamental rights that come into conflict, and from this perspective, the balancing exercise must respect the prevailing position held by both the right to freedom of expression and the right to freedom of information, because they are essential safeguards for the formation of free public opinion, which is indispensable to the political pluralism required by the democratic principle. Furthermore, that abstract balancing analysis must take into account that the exercise of freedom of expression, by its very nature, encompasses criticism of another person’s conduct, even when it is harsh and may annoy, unsettle, or offend the person against whom it is directed, because pluralism, tolerance, and a spirit of openness, without which no democratic society exists, so require.” Spanish Supreme Court Judgment of February 16, 2016.

Following the same line of reasoning, the European Court of Human Rights emphasized the importance of the fact that “freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society” (case “Nombre154 vs. Austria,” judgment of July 8, 1986, Series A N° 103, para. 42).

Indeed, based on the jurisprudential context set forth above and the arguments expressed in the cited precedents, this Chamber has analyzed the considerations of the case and concludes that the appellant is correct in its claim. The democratic order requires the protection of freedom of expression (libertad de expresión) as a basic and indispensable instrument for the formation of public opinion. Such protection encompasses the possibility of expressing thoughts through the means chosen by the speaker, as well as the ability to disseminate them through those means. As stated in the cited precedent, the value of this protection reaches its highest level when that freedom is exercised by information professionals through the institutionalized vehicle for shaping public opinion, namely, the press. In this regard, although the right to expression provided for in Article 13 of the American Convention is not absolute, the limits on its exercise and the controls imposed to ensure its proper exercise must not restrict it beyond what is strictly necessary, to the point that they may become a direct or indirect mechanism affecting freedom of expression, information, and the press and constitute a violation of that right.

In the case under review, this Chamber finds that, in the publication issued by the newspaper Diario Extra on June 24, 2015, in which the image of Mr. Nombre168 was used, the news outlet merely disseminated information related to a newsworthy event of public interest because it concerned the possible commission of a crime. Accordingly, the use of a person’s image to report on an event is justified by its relevance to the public, and consent to the use of that image in such a context is unnecessary. The photograph used is part of a public document, not an image obtained in an intimate, family, or private context, and it is used as an accessory to and complement of the news report. In the news report under review, the photograph is used to provide context for a report that is also truthful—an undisputed fact—and serves as an accessory complement to it, as stated above, without the image being used in a manner that affects the dignity of the person depicted.

Under those circumstances, it therefore operates as a valid limitation on the exceptions permitted by the right to one’s image (derecho a la imagen). Today, a news outlet consisting solely of text, without images or illustrations, is inconceivable. Thus, in this Court’s view, Prohab’s analysis begins from a scenario in which the use of the image in question is taken out of context, as though it were not part of a newsworthy event of public interest being reported at that time. The respondent states that the news could have been reported just as well without using the image in question, which constitutes an illegitimate interference with freedom of the press; it is equivalent to telling a news outlet what and how to communicate or disseminate, which is a flagrant violation of the essential content of freedom of the press. Its effect would be to nullify so-called photojournalism (Fotoperiodismo) and would create a form of self-censorship (autocensura) by news outlets, which would have to refrain from illustrating their reports, as part of the content of the news, through the use of images of persons in order to avoid complaints before a State office that—in this context—seeks to operate as a kind of censor or editor determining what and how something may be published.

As stated above, this would produce a continuing chilling effect of self-censorship that is manifestly harmful to the right to freedom of the press, which naturally includes the freedom to choose the content of what is published. Following the line already established in judgment 2015-1782, pursuant to Article 13 of the American Convention: “3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means intended to impede the communication and circulation of ideas and opinions.” In this regard, censorship (censura) of freedom of the press may be direct—for example, the outright prohibition of a particular publication—or indirect (also called soft censorship, subtle or covert censorship)—for example, the use of various means to intimidate and thereby prevent a publication.

The Convention provides a non-exhaustive list of instances of censorship through indirect means (controls over paper, frequencies, etc.) and concludes with the general rule, which is “…or by any other means intended to impede the communication and circulation of ideas and opinions.” (2015-1782) The Chamber considers that Prohab’s exercise of its powers for the purposes of the Law on the Protection of Individuals with Regard to the Processing of Their Personal Data (Ley de Protección de la Persona frente al Tratamiento de sus datos personales) may not be used to censor the legitimate exercise of freedom of the press, because that would constitute indirect censorship under State control of a fundamental right that is essential to sustaining the democratic system.

In that regard, the Chamber finds that where the use of the image—the photograph of the passport page—as in this case, occurs within the context of a newsworthy event of public interest, is included in a public document, and is directly related to the content of the news report—since it concerns a cross-border immigration matter—and where its use does not denigrate or harm the image of the person depicted, it is impermissible to separate that image from or take it out of the context of its news report, much less to seek its removal, because it forms an integral part thereof. Doing so would entail censorship of the news report itself, in violation of Article 13 of the American Convention on Human Rights. In Nombre169 v. Argentina (FJ 54 et seq.), the Inter-American Court of Human Rights (Corte IDH) held that restrictions on freedom of expression “(...) are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression or become a direct or indirect mechanism of prior censorship (censura previa) (...)”; that they “must be expressly, precisely, exhaustively, and previously established”; and that “the legal framework must provide citizens with legal certainty,” limits that were clearly violated in this case by the attempt to restrict the content of truthful information of public interest.

Based on that reasoning, the decision of the respondent entity in this specific case, ordering the appellant to delete from its database the complainant’s passport photograph contained in the repeatedly cited news report, is deemed an action that affects journalistic, informational, and news-reporting activities and, consequently, the essential content of the protected news outlet’s freedom of the press. It is therefore concluded that the order issued by the Agencia Protectora de Datos, which UPHELD the complaint filed by Nombre95 against Diario Extra and ordered Diario Extra to delete from its database the complainant’s passport photograph contained in the repeatedly cited news report, violates the appellant news outlet’s freedom of information. Accordingly, the petition for constitutional relief (amparo) under review must be granted, as hereby ordered. (…)” (Emphasis not in the original).

This jurisdiction, in Voto No. 16167-2020 at 09:20 hrs. on August 28, 2020, stated:

“(…) I.- SUBJECT MATTER OF THE PETITION. The appellant considers that his fundamental rights have been violated because, in response to the COVID-19 pandemic, the government has enacted measures restricting freedom of movement and commerce. He further maintains that the respondent authorities are violating freedom of the press through their actions concerning Diario Extra, since MTSS canceled its subscription to that news outlet and ICAA instructed its officials not to speak with journalists from that newspaper. (…)

IV. THE SPECIFIC CASE

In the sub examine, the protected party claims that the Ministerio de Trabajo y Seguridad Social violated fundamental rights by canceling the subscription to Diario Extra. In this regard, the sworn report submitted by the Ministra de Trabajo y Seguridad Social stated, concerning MTSS’s cancellation of its subscription to Diario Extra, that: “(…) that decision was due to the fact that, as a result of the State of Health Emergency facing the country, which has caused economic harm not only nationally but also worldwide, the Executive Branch recently arranged for cuts in public spending. Those budget cuts required us, as an institution, to reduce costs under certain specific line items while, of course, taking care not to affect the service that we, as a Ministry, provide to the public. Thus, as a result of the budget cuts we made, the decision was adopted to discontinue the institution’s subscriptions to certain newspapers of national circulation, such as Diario Extra, La Nación, El Financiero, and La República.

The amount used to pay for those subscriptions came from the same line item used to purchase paper and cardboard supplies, and it represented nearly 50% of the budget allocated for those purposes. Because, as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the sinks installed so that this Ministry’s officials and users may wash their hands, priority was given to purchasing those supplies, resulting in the discontinuation of the aforementioned subscriptions” (boldface not in the original).

The Court thus verifies that, on July 14, 2020, an MTSS official sent official letter DGAF-OF-383-2020 to the legal representative of Sociedad Periodística Extra Limitada, stating: “With utmost respect, and within the framework of procurement proceeding 2019CD-000045-0007000001, under the on-demand arrangement for the acquisition of copies of the newspaper La Extra, you are hereby informed that, pursuant to instructions from higher authorities and in compliance with the new directives issued by the Government of Nombre01 of Costa Rica, which call for mandatory budget cuts in order to redirect resources toward addressing the COVID-19 pandemic, we find it necessary to formally request the indefinite cancellation of delivery of that newspaper beginning July 16, 2020.” Likewise, official letters DGAD-OF-376-2020, addressed to the legal representative of Properiodicos Limitada, and DGAD-OF-382-2020, sent to the legal representative of Grupo Nación GN S.A., show that notice was given of the cancellation of MTSS’s subscriptions to the newspapers La República, and La Nación and El Financiero, respectively.

Thus, contrary to what was alleged by the respondent, this Court finds that the actions of the Ministry of Labor and Social Security do not infringe fundamental rights. It should be noted that, in the case at hand (sub iudice), MTSS canceled the subscription not only to Diario Extra, but also to other media outlets such as La República, La Nación, and El Financiero. Moreover, there is no indication that this decision was arbitrary; rather, it resulted from a budget cut arising from the COVID-19 pandemic. In this regard, it bears reiterating that the report submitted under oath by the Minister of Labor and Social Security stated that “(…) the amount used to pay for the subscriptions in question was charged to the same budget line used to purchase paper and cardboard supplies, and this represented almost 50% of the budget allocated for those purposes. And since, as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the washbasins installed for handwashing by this Ministry’s employees and users, priority was given to purchasing those supplies, with the resulting elimination of the aforementioned subscriptions.” Therefore, given the conditions caused by that pandemic, the institution prioritized the purchase of paper towels, which entailed discontinuing the subscriptions in question. Consequently, because no violation of fundamental rights has been established, the appeal must be denied with respect to this claim.

V.Furthermore, regarding the appellant’s complaint concerning the actions of ICAA, the Court observes that on June 29, 2020, “MINUTA GG-2020-02784” was issued concerning a meeting held between ICAA officials and representatives of the SITRAA union. The document lacks signatures and states: “Objective: Various SITRAA matters Location: Virtual Date:29-06-20 Start time: 11:00am End time: 12:40pm (…) 1. Campaign to reinforce AyA’s work, action, SITRAA-AyA. operational crews, slogan heroes of hygiene. Nombre96 explains the proposal; SITRAA has conducted a communications campaign to improve AyA’s image. They do not agree with the campaign and expenditures planned by AyA. Slogan: ‘Heroes of Hygiene’; they want to launch a campaign using this slogan with the support of operational workers throughout the country. Nombre97 asks Nombre170 about the objective of AyA’s advertising procurement; apparently, it is not clear to him, so she provides a detailed explanation: the objective is to connect homes to AyA’s sewer systems.

She clarifies that the campaign is not intended to improve AyA’s image, but to encourage the public to connect to the sewer systems. She calls for not feeding Diario Extra and CRHoy, since their objective is privatization. Nombre170 comments that they do not provide information to the press; rather, he indicates that the press asks them for clarification regarding matters of which they are unaware. He clarifies that SITRAA takes to the press those matters for which it receives no response from the Administration. Nombre98 comments on the campaign and indicates that SITRAA’s proposal seems sound and can be carried out using its own resources; she recommends unity in order to improve AyA’s image and notes certain work undertaken by the Institutional Communications Directorate. The internal foundation must be strengthened before projecting ourselves externally. Nombre171 of SITRAA comments that it would be good for Ms.

Nombre172 to carefully read the press releases, so that she may realize that SITRAA is not harming the institution’s image, but rather defending AyA’s institutional integrity because of its importance in water-resource management. Nombre172 indicates that the media publish only things that weaken AyA’s image and requests the formation of an alliance with the unions to improve the Institution’s image (…)” (emphasis added).

In this regard, the Executive President of ICAA states in the report submitted under oath to this Constitutional Court that: “In compliance with the formalities established at the institutional level, draft minutes of the meeting were prepared under number GG-2020-02784, which is associated with the official-letter number. That draft bears no signature or initials of the participants, and it is hereby clarified that, although the officials on the list contained in the draft minutes had been summoned, Mr. Nombre99 and Mr. Nombre100 did not attend the meeting, which had been convened virtually; nevertheless, it was held in person. The draft minutes were prepared by official Nombre101, who recorded, in the format customarily used for these meetings, the agenda and a brief account of the matters discussed. The minutes were subsequently communicated and shared by email by SDI through Memorandum GG-2020-02784, signed by official Nombre101 of the General Management, who is responsible for following up on the matters and agreements arising from meetings with the various unions established within AYA.

It is clear from the document entitled ‘minutes’ that at no time did the undersigned make the statement challenged herein; therefore, it is evident that the appellant takes out of context a phrase from the minutes of a meeting held between Senior Management and the SITRAA union, at which an internal motivational campaign for AyA personnel was discussed, particularly one aimed at workers on the front lines of the pandemic response. In that context and in the spirit of joining efforts, I called upon the union organizations, if there were situations of concern to them within the institution, to submit their complaints to Senior Management so that they could be addressed before resorting to the media. That is precisely what I meant when I stated ‘do not feed the media,’ as quoted in the minutes. I reiterate that neither the minutes nor any other document ever indicates that anyone was ‘ordered not to speak with Diario Extra’; I do not know what basis the appellant has for making such a reckless interpretation concerning freedom of expression.

In fact, all press inquiries made by Diario Extra have been addressed in a timely and proper manner; from May to date, 9 requests for information submitted by email have been received and answered. During this year, Diario Extra and Extra TV 42 have published at least 183 reports concerning the institution” (boldface added).

The Chamber also observes that, on July 21, 2020, the Executive President of ICAA addressed official letter PRE-2020-01101 to the General Manager of Diario Extra, stating: “In exercise of the right of reply (derecho de respuesta) enshrined in Articles 29 of the Political Constitution and 14 of the American Convention on Human Rights, as well as Article 66 et seq. of the Constitutional Jurisdiction Law, in my capacity as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, I request the appropriate space to correct the article published by Diario Extra on July 21, 2020, entitled ‘President Nombre173 orders staff not to speak with DIARIO EXTRA.’ I would appreciate publication of the following text: Nombre173 has never ordered anyone not to speak with Diario Extra. With regard to the article published in Diario Extra on July 21, 2020, entitled ‘President Nombre173 orders staff not to speak with Diario Extra,’ as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados (Nombre173), I state that it is absolutely false that any official, male or female, was ‘ordered’ not to speak with Diario Extra.

The journalist takes out of context a phrase from the minutes of a meeting held between Senior Management and the SITRAA union, at which an internal motivational campaign for AyA personnel was discussed, particularly one aimed at workers on the front lines of the pandemic response. In that context and in the spirit of joining efforts, I call upon the union organizations, if there are situations of concern to them within the institution, to submit their complaints to Senior Management so that they may be addressed before resorting to the media. That is precisely what is meant by ‘do not feed the media..,’ as quoted in the minutes. Neither the minutes nor anything else ever indicates that anyone was ‘ordered not to speak with Diario Extra’; I do not know what basis the journalist has for making such a reckless interpretation concerning freedom of expression. In fact, all press inquiries made by Diario Extra have been addressed in a timely and proper manner; from May to date, 9 requests for information submitted by email have been received and answered.

During this year, Diario Extra and Extra TV 42 have published at least 183 reports concerning the institution. At Nombre173, we respect the right to information and freedom of expression and would never agree to infringe those rights. During this year, we have sent Diario Extra two replies: one concerning a January 15 publication, which was never published, and another that was published in the June 27 edition. We are aware of the vital role played by the press in our democracy. We clearly understand how important it is for the country to strengthen the media, since, as a nation, we cannot permit the interruption of a media outlet’s operations; that would be contrary to the public interest in remaining informed, especially amid a pandemic that requires accurate and timely information every day. We have trusted and continue to trust Grupo Extra to conduct our public-information and accountability campaigns, and we will continue to do so to the extent our resources permit. We could never allow ourselves to be accused of striking any blow against freedom of expression” (highlighting added).

Accordingly, it is appropriate to cite the provisions of judgment No. 2014-011694, issued at 9:05 a.m. on July 18, 2014, by this Constitutional Court, which held:

“III.- FREEDOM OF EXPRESSION AND THE STATUTORY EMPLOYMENT RELATIONSHIP (RELACIÓN ESTATUTARIA). Public officials or civil servants, by virtue of being subject to a statutory employment relationship, may not have their freedom of expression and opinion diminished or restricted, nor, in general, any of the fundamental rights they hold by reason of their inherent human dignity. Administrative organizations are not watertight compartments isolated from society at large, and the existence of a civil-service career or a statutory employment relationship does not justify the temporary deprivation or restriction of the fundamental rights that public officials enjoy in every aspect of their lives. Certainly, freedom of expression within the framework of a civil-service or statutory employment relationship may be subject to minor qualifications by reason of the hierarchical relationship inherent in an administrative organization, the trust that must exist between superior and subordinate, the duties of loyalty owed by both to institutional purposes, and the duty of confidentiality regarding matters declared state secrets by law.

In this regard, it should be added that any such qualification must be proportionate and reasonable, and that not even a public interest could limit or restrict the fundamental rights of a public official, given the stronger binding force, direct and immediate effect, and superior hierarchical status of those rights. The concepts of good faith and loyalty cannot override a public official’s freedom of expression when its exercise does not cause unlawful harm to the public entity or body to which the official belongs and which the official represents, or to third parties. The heads or hierarchical superiors of a public entity or body, because of their particular and substantial responsibilities and public exposure, must be subject to and tolerate criticism that is neither harmful nor unlawful, whether from users of public services, members of the public generally, or the officials themselves.

The same also applies to the forms and instruments used to manage or administer a public entity or body. Criticism by users, members of the public generally, and public officials concerning the individual performance of any civil servant and the institutional performance of the public entity or body constitutes a powerful tool for controlling and overseeing public administration and, of course, for achieving higher levels of performance and results, accountability, and administrative transparency. No public official may be harassed, persecuted, reprimanded, or punished for expressing opinions, ideas, thoughts, or value judgments concerning the administration of the public entity or the actions of another public official.

IV. THE CONTENT OF ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS

Article 13 provides as follows:

Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive, and impart information and ideas of every kind, regardless of frontiers, whether orally, in writing, in printed or artistic form, or through any other medium of one’s choice.

This provision seeks to maximize opportunities to participate in public debate, particularly because, in addition to protecting the expression of ideas, it recognizes the collective right to be duly informed and the right of reply. Nevertheless, like every right, it is not absolute; rather, it permits restrictions to harmonize its exercise with the rights of others, the security of all, and the demands of the common good in a democratic society (art.32 of the Convention). Such limitations, however, may be no broader than those established in that same provision or in the Political Constitutions (art.30 of the Convention). This right may not be subject to prior censorship (censura previa), but only to subsequent liability. Article 29 of the Constitución Política incorporates this principle by providing: “Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; however, they shall be liable for any abuses committed in the exercise of this right, in the cases and manner established by law.” Freedom of expression, in this sense, may not be subjected to prior control.

The State, through any of its bodies, is constitutionally and conventionally prohibited—subject to the exceptions concerning the protection of other rights set forth in articles 13 and 27. 1 of the Convention—from engaging in prior censorship. The Comisión Interamericana Sobre Derechos Humanos has repeatedly identified the two dimensions of freedom of expression: the right of every person to disseminate ideas and information, and the collective dimension, consisting of the right of society as a whole to receive such ideas and information. When the right to freedom of expression is violated through prior censorship, a range of rights is impaired, including the right of the entire community to receive truthful information. Thus, the Corte Interamericana, in Advisory Opinion OC-5/85, stated that: “...when an individual’s freedom of expression is unlawfully restricted, it is not only that individual’s right that is being violated, but also everyone’s right to ‘receive’ information and ideas.

V. THE SPECIFIC CASE

In the case under review, through Circular No. 211-2014, dated March 10, 2014, the respondent institution’s Director of Public Relations of the Ministerio de Obras Públicas y Transportes instructed the directors and department heads of Mopt to coordinate with the Office of Public Relations whenever the media contacted them directly, so that the media could be attended to promptly and such contact could result in opportunities for institutional outreach; likewise, the subject matter of the inquiry to be addressed was to be jointly defined. The petitioner contends that this directive violates the Mopt employees’ right to freedom of expression because the Office of Public Relations seeks to exercise prior censorship over statements or expressions made by public officials. The respondent Director states that the purpose is to inform officials when the press contacts them without prior coordination with Public Relations; it is intended to provide officials with appropriate guidance on the subject so they can respond to the news media, not to exercise prior censorship as the petitioner claims.

The fact remains, however, that requiring officials of the Ministerio de Obras Públicas y Transportes to conform their statements to the rules of that Ministry’s Office of Public Relations whenever they appear before the mass media constitutes interference in the nature of prior censorship, which threatens or prevents them from freely expressing their opinions on matters relating to their institutional duties. This directly affects the public, which receives filtered or otherwise censored information. Circular 211-2014 of the Office of Public Relations cannot be deemed to fall within any of the circumstances contemplated by our Constitution or by the international instruments that supplement it (by virtue of the integrating effect of article 48 under the 1989 amendment) so as to legitimize a restriction on freedom of expression. For these reasons, the petition must be granted with the consequences prescribed by law.” (emphasis added).

Furthermore, for purposes of deciding this amparo proceeding (recurso de amparo), it is appropriate to cite the provisions of judgment n.° 2015-01782, issued at 11:36 hours on February 6, 2015: (…)

This Tribunal considers that the precedents transcribed above are applicable to the case at hand (sub lite), since it finds no grounds for departing from the criteria stated therein or any reasons for assessing the situation presented differently.

Accordingly, in the case under adjudication (sub iudice), the Chamber (Sala) finds that a violation of constitutional significance has occurred. It should be noted that, although the aforementioned minutes lack signatures, it is no less true that the executive president of ICAA did not deny their content, but merely alleged that the statement “She calls upon them not to feed information to Diarios Extra and CRHoy, since their objective is privatization” had been taken out of context, because what she intended to convey was “a call to the labor-union groups that, if there are situations within the institution that concern them, they should submit their complaints to Senior Management so that they may be addressed before going to the media. That is precisely what is meant by ‘not feeding information to the media.’” On this point, the Tribunal finds that, in the matter under examination (sub examine), there is sufficient evidence that the executive president of ICAA made the statement transcribed above, which plainly constitutes an infringement of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the constitutional principles of democracy, accountability, and transparency in public administration, because it amounts to a form of concealed censorship, given that the practical result of such a call was to prevent the affected media outlets from obtaining access to public information.

Indeed, contrary to the position maintained by the respondent authority, the statement in question urged officials of the Instituto Costarricense de Acueductos y Alcantarillados to refrain from providing information of public significance to certain media outlets. First, such conduct constitutes a serious threat to those officials’ freedom of thought and expression because the initiative came from none other than the executive president of the institution in question; consequently, the “call not to feed information to media outlets” is particularly serious in view of the hierarchical rank of the person who made it. Second, freedom of the press and the right to equality are violated because officials of ICAA were encouraged not to provide information to two specific media outlets, CR-Hoy and Diario Extra, thereby placing the affected outlets, without any justification whatsoever, at a clear disadvantage compared with the other media outlets. In addition, the situation described harms the general population because the “call not to feed information to media outlets” prevents the public from accessing information concerning the provision of essential public services, which is unacceptable in a society governed by the principles of democracy, accountability, and transparency in public administration.

In view of the foregoing, the appropriate course is to grant the petition under the terms set forth in the operative portion (parte dispositiva) of this judgment. (…)

Por tanto: The appeal is partially granted solely with respect to the Instituto Costarricense de Acueductos y Alcantarillados for violation of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in connection with the constitutional principles of accountability, democracy, and transparency in public administration. Nombre102, in her capacity as executive president of the Instituto Costarricense de Acueductos y Alcantarillados, or whoever holds that position in her stead, is ordered to refrain from again engaging in the conduct that formed the basis for granting this amparo appeal (recurso de amparo). The respondent authority is warned that failure to comply with this order will constitute the offense of disobedience and that, pursuant to Article 71 of the Ley de la Jurisdicción Constitucional, anyone who receives an order issued in an amparo appeal that they are required to comply with or enforce, and fails to comply with or enforce it, shall be punished by imprisonment for three months to two years or by a fine of twenty to sixty days, provided that the offense is not subject to a more severe penalty.

The Instituto Costarricense de Acueductos y Alcantarillados is ordered to pay the costs, damages, and losses caused, which shall be assessed during enforcement of the judgment before the administrative litigation court. In all other respects, the appeal is denied. Let notice be given. (…)”.

More recently, this constitutional body, in Judgment No. 23107-2022 at 09:30 hrs. on October 4, 2022, held as follows:

“(…) VI.- Specific case. In the case at bar (sub lite), the appellant alleges as her first grievance that, in her capacity as a journalist, she directs the analysis, opinion, and self-criticism program called “Hablando Claro,” which has been broadcast on Radio Columbia since February 1, 2007, and she considers that, in that capacity, the respondent authorities violated her fundamental rights, specifically the rights to freedom of expression and freedom of the press, because between July 8 and 9 of last year, she received calls from five public officials holding senior positions within the Nombre01 Administration or in the communications offices of ministries and decentralized institutions. Acting as confidential journalistic sources, they told her that they were alarmed by a message that the then Minister of Communication, Nombre103, had sent via WhatsApp to all Government Ministers and Executive Presidents.

She contends that, according to her sources, in that communication the Minister instructed all senior officials, as a matter of urgency, to suspend all forms of government advertising in the media outlets “Amelia Rueda, La Nación, CRHoy y Canal 7.” She further alleges that the message urged them, “as a matter of urgency, not to participate in interviews on Hablando Claro and Amelia Rueda.” In this regard, based on the report submitted by the respondent authorities—which is deemed to have been given under oath, with the consequences, including criminal consequences, provided for in Article 44 of the Law governing this Jurisdiction—and the evidence submitted for resolution of the matter, this Chamber could not deem it proven that the order or directive challenged by the appellant had been issued. Although the reports received may be considered brief or laconic on this particular point, they do clearly state that no such order or instruction was issued.

The Chamber notes that those reports focus on the powers and authority of the Ministerio de Comunicación and on procedural aspects of filing this appeal; however, because they deny the existence of the order, directive, or instruction described by the protected party (amparada), there is no basis whatsoever in this particular case for deeming its existence proven. Accordingly, the appeal must be denied with respect to this claim.

VII.Nevertheless, given the significance of the issue and the seriousness that could arise from the public authorities issuing an order in the terms alleged in these proceedings, it is necessary to remind the authorities of the Ministerio de Comunicación and the Ministerio de la Presidencia that, as stated in the fifth recital (considerando) of this judgment, freedom of expression and information has a dual dimension, reflected not only in journalists’ ability to report on matters relevant to public opinion, but also in the right of the country’s inhabitants to receive such information. Public bodies and entities therefore have a duty to adopt the appropriate measures to ensure that the Nombre01 inhabitants may be informed of actions and events occurring or unfolding within the national territory that are of interest to the community. This is particularly so because the matters and decisions addressed and made by the central government and every administrative institution, body, and entity are significant and relevant to the proper functioning of the country and to the exercise of the rights granted to the general population and its members within their respective spheres of activity.

All such matters must therefore be addressed with complete openness and transparency, without any possibility of preventing the citizenry, public opinion, or any mass communication medium from learning about them. Accordingly, practices that obstruct access to information—such as preventing reporting on certain events or decisions, refusing to grant interviews to various media outlets, failing to invite them to participate in conferences or press briefings, restricting their advertising, or denying access to resources needed for dissemination, among other forms of direct or indirect censorship—cannot and must not be endorsed by a Constitutional Court, for the fundamental reason that access to and timely provision of such information must occur through a simple, prompt, and uncomplicated process that guarantees the population, and public opinion generally, the right to information and freedom of expression.

Having said this, the respondent authorities are again reminded that “the government and the courts must allow an ‘uninhibited, robust, and open’ debate to develop, which may include caustic and vehement expressions and, at times, harsh and unpleasant attacks on the government and public officials” (See Judgment No. 2006-5977 at 15:16 on May 3, 2006). In other words, the respondents must bear in mind that, in performing public offices such as those they hold, and in the present era, when technological advances make it easier to cover and access newsworthy events, it is normal for some discussions arising in the heat of press coverage to seem unfortunate and unpleasant to them. Nevertheless, in a democratic country such as Costa Rica, that exercise of freedom of expression and freedom of the press is what distinguishes us as a Social State under the Rule of Law (Estado Social de Derecho) and a free people.

For these reasons, in order to guarantee the freedom of the press and freedom of expression enjoyed by journalists and mass communication media, as well as by the population generally, the respondent authorities must ensure that every directive, order, act, or instruction issued by the central government always adheres to the protection of these freedoms and of every fundamental right enjoyed in a democratic country such as ours, under the terms set forth in this judgment (…)”.

As may be observed, it is clear that the use or application by state authorities or private parties of the indirect restrictions mentioned in this recital gravely and flagrantly violates freedom of expression and freedom of the press. Hence the importance of the safeguards and protection afforded to them by our Constitución Política and the Convención Americana sobre Derechos Humanos, among other instruments, and hence also the responsibility borne by this Sala Constitucional to ensure compliance.

VIII.FINANCIAL CONGLOMERATES OR STRUCTURES CREATED TO finance or diversify the revenue sources of media outlets and, consequently, ENABLE the exercise of freedom of the press. In recent years, traditional media, particularly print media, have experienced a sharp economic decline with the advent of the internet, the drop in advertising investment and its migration to major digital platforms such as Google and Facebook, and the resulting change in information-consumption habits. Taken together, all of this has led users largely to prefer accessing information digitally (that is, through smartphones, tablets, computers, etc.) instead of purchasing a printed newspaper or accessing other platforms (radio or television), as they had regularly and traditionally done.

As a result, media outlets have found it necessary to innovate and seek new formats, proposals, or mechanisms for generating new revenue (and attracting audiences) that, in turn, make it possible to finance journalism and the media outlet itself, particularly investigative journalism, which is costly. In other words, they have had to implement new business strategies or introduce hybrid models to “make media outlets profitable,” as some have called it. Indeed, many media outlets today do not earn money from their principal or traditional activity, but from other activities that enable them to survive. By way of example, modern media outlets have resorted, among others, to the following approaches or strategies: a) some print media have created their own digital platforms and introduced subscription models or what has been called “pay-per-view,” an approach successfully adopted by major media outlets such as The New York Times or The Guardian. b) They have produced higher-quality, exclusive content on specific topics of interest to certain sectors, making it appealing to seek out and access that content. c) They have used podcasts (series of episodes on various topics recorded as audio and distributed online, as used, for example, by The New York Times through its program The Daily). d) They have promoted the organization of events, forums, or conferences on specific topics with experts and prominent figures, charging fees to participate or attend (media outlets such as Texas Tribune or The Economist have become known for organizing events of this kind). e) They also sell pieces to third parties (large media outlets, taking advantage of their extensive experience and structural support, cover certain specialized information, process it, and sell it to others, including their own competitors). f) They have used what is known as Brand licenser, which allows media outlets to license their brand for use by third-party companies in their products or services (e.g., National Geographic sells travel- and adventure-related products and books and has even opened stores associated with the subjects it covers).

It should likewise be noted that, as part of the approaches to which the media have had to resort in order to diversify their sources of revenue and remain financially viable, they have also turned to acquisitions of or affiliations with other companies whose principal activities may or may not be directly related to journalism (thus forming what have been called holding companies or economic interest groups). This particular type of phenomenon has occurred in other parts of the world and also domestically.

Thus, by way of example, there is the case of the newspaper The Boston Globe and other media outlets (themselves owned by the U.S. newspaper The New York Times), which were acquired in 2013 by Nombre104, owner of the Red Sox baseball team and the Liverpool FC soccer team, for the purpose of addressing the substantial financial losses suffered by the former as a result of readers and advertising migrating to the internet. Likewise, in 2012, Nombre105, through his holding company Berkshire Hathaway (a company holding all or part of the shares of several business groups in the textile, insurance, automobile, beverage, and other industries), purchased sixty-three newspapers belonging to the Media General Group in the southeastern United States, which were also experiencing low profitability. The newspapers acquired by Nombre174 included the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina.

There is also the case of Nombre106 (founder and owner of Amazon, the giant e-commerce company), who purchased The Washington Post in 2013 in order to ensure its survival after that media outlet was likewise affected by the emergence of new technologies and the decline in audiences and advertising revenue. It should be noted that, in this particular case, although the media outlet—as reported by, among others, the Spanish newspaper El País—will not formally be integrated into or affiliated with Amazon, its acquisition forms part of the same commercial strategy aimed at helping it remain operational (https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).

In Costa Rica, the use of this type of mechanism or approach is exemplified by Grupo Nación S.A. (the corporation of which Periódico La Nación forms part), which decided to purchase the facilities of what used to be Dirección03 and converted them into the event center known as Parque Viva, as a means of diversifying the company’s sources of revenue and thereby offsetting the loss of earnings caused by advertising migrating to internet sites.

It is understandable that, under current circumstances, in which print media require financial support due to the loss of some of their traditional sources of revenue, other types of companies or corporations are created or established—under the protection of the legal system (ordenamiento jurídico)—to provide them with the economic or financial resources and sustainability needed to maintain the former. The case of Nombre03 S.A. and its acquisition of what is now called Parque Viva, referred to above, provides a clear example of this.

These types of financial structures, like the other examples cited above, become a source of revenue or resources that assists or makes it possible to carry out journalistic work, given that the revenue generated by the former makes it possible to cover or offset many of the expenses required by a media outlet. Consequently, it is a reality that, if these types of mechanisms or arrangements are unlawfully or arbitrarily affected, the practice of journalism is likewise harmed; in essence, freedom of the press, as a manifestation of freedom of expression, is harmed.

That said, any consequential effect (afectación refleja)—whether indirect or concealed—that measures adopted against such financing structures may have on freedom of the press must be weighed in each specific case, it being clear that not every administrative act or conduct imposing a burden (gravamen) or establishing consequences adversely affecting such entities entails a consequential infringement of the kind described. Indeed, it should be noted that, like every regulated person (persona administrada), these structures are bound by and subject to the legal rules that regulate, specify, and delimit the exercise of their respective economic activities. In that regard, their operations must satisfy and comply with the regulations applicable to their activities, including obtaining the respective administrative authorizations (habilitaciones administrativas) to conduct their commercial operations.

They must therefore hold the appropriate permits or instruments demonstrating compliance with urban-planning, building-related—including those concerning Ley No. 7600—health, and safety regulations, as well as the commercial licenses and permits required in each case. They must additionally comply with the applicable tax regulations. Similarly, in the course of their activities, like every person, they are subject to oversight and monitoring of those activities in order to verify that they continue to maintain the level of compliance on the basis of which their commercial operations were authorized. Within that framework, failure to comply with the operating conditions imposed by those sector-specific regulations could indeed lead to the imposition of restrictive administrative measures or administrative sanctions. This is so provided that the specific exercise of this manifestation of administrative police power (poder de policía administrativa) may be regarded as lawful, based on proper and timely proof of the circumstances of noncompliance that would justify each legal consequence, and provided that the decision is consistent with the merits of the case record and the applicable legal system (the relationship between the objective substantive elements of grounds and content) and is compatible with the protected public interest.

In such cases, where the administrative function constitutes the lawful exercise of administrative powers aimed at safeguarding the public interest, it cannot be characterized as a form of consequential infringement of freedom of the press, but rather as the lawful and foreseeable consequence of failure to comply with public-order rules binding upon every regulated person. By contrast, where such measures are unsupported by the various factual or legal predicates that the body of rules defines in each instance as a necessary antecedent or triggering condition (presupuesto condicionante) for adopting a particular punitive or adverse decision, or where the content of the act adopted following verification of those conditions is excessive, disproportionate, or unreasonable in relation to those antecedents, contrary to the public interest, or generally contrary to legality in the broad sense, this would constitute administrative conduct that may entail misuse of power (desviación de poder) (art. 113 LGAP) and, as stated, an indirect or consequential infringement of freedom of the press.

This requires a careful analysis of the particular circumstances of each case as the basis for a neutral, equitable, and objective balancing of fundamental freedoms and rights within a system governed by the rule of law, on the one hand, and the exercise of administrative powers whose purpose and guiding principle is the protection and fulfillment of the public interest, on the other. Therefore, not every act adversely affecting a financial structure constitutes an impairment of the freedom under examination, just as not every administrative oversight function concerning such structures may automatically be regarded as lawful. Accordingly, in cases such as this one, in which an indirect violation of freedom of expression and freedom of the press is alleged as a result of oversight activities by the Health Administration, it falls to this judicial body to weigh the particular circumstances in order to determine whether the exercise of those powers was proper or improper, as a condition sine qua non for assessing whether there is a duty to lawfully tolerate those administrative impositions.

IX. SPECIFIC CASE

For ease of understanding, the examination of this matter is structured into the following four sections: a) preliminary clarifications; b) closure of Parque Viva through arbitrary, unsupported, and disproportionate action; c) closure of Parque Viva and indirect infringement of freedom of expression; and d) final relevant clarifications.

A. PRELIMINARY CLARIFICATIONS. At the core of this amparo proceeding (proceso de amparo) is the sanitary closure order (orden sanitaria de cierre) issued against Parque Viva on July 8, 2022, as well as the effects it caused or entailed for the media outlet Diario La Nación, particularly with respect to freedom of expression.

In this regard, it is important first to clarify that this Constitutional Court has taken the position that, because it is a matter of ordinary legality, it is not for the Court to rule on the technical matters or requirements that a particular commercial establishment must satisfy under the legal system in order to be granted a health permit (permiso sanitario) and thereby commence operations. This Chamber has also held that assessing and questioning the technical criteria issued to potentially revoke such a permit—for example, through the issuance of a sanitary order (orden sanitaria)—falls outside the scope of its jurisdiction.

Nevertheless, it is important to note that the foregoing position does not prevent this constitutional body from analyzing a sanitary order and the circumstances in which it was issued from a constitutional perspective, in light of matters that this jurisdiction has traditionally addressed, analyzed, and safeguarded since its creation, as will be seen in the following sections. In this regard, it should be emphasized that this Chamber has also held that sanitary orders issued by the authorities of the Ministerio de Salud may be reviewed in this jurisdiction in exceptional cases, specifically identified by virtue of their unavoidable and direct relationship to the fundamental freedoms or rights essential to sustaining the democratic system. Thus, in Judgment No. 21103-2022 at 09:20 hrs. on September 9, 2022, this jurisdiction stated:

“(…) in settled case law, this Court has held that, as a matter of principle and subject to certain specific exceptions, identified in each case by virtue of their unavoidable and direct relationship to fundamental freedoms or rights essential to sustaining the democratic system, sanitary orders issued by the authorities of the Ministerio de Salud may not be challenged in this jurisdiction. (…)”. (Emphasis not in the original).

It should be noted that, through Voto No. 1515-2021 at 10:00 hrs. on January 26, 2021, this Court ordered the annulment of a health measure (medida sanitaria) issued by the Ministerio de Salud against a petitioner, to the detriment of his right to freedom of expression, upon finding that the administrative act lacked technical grounds. On that occasion, this Chamber expressly held as follows:

“(…) III.- SUBJECT MATTER OF THE WRIT. The petitioners allege that the protected party (amparado), in exercising his constitutional right to freedom of expression, created a movement on social media through his public profile, https://www.facebook.com/rolandoarayamonge, and his radio program, “Cubaces Tiernos,” which is broadcast on the 89.1 FM frequency and simultaneously on the Facebook Live platform through “streaming,” referring to the alleged effectiveness of chlorine dioxide (sodium chlorite) in combating covid-19. However, the Ministry of Health issued a health order (orden sanitaria) against him on the grounds that he was encouraging the public to consume a substance that had not been authorized and was, on the contrary, contraindicated. (…)

V.The Specific Case. In its case law, this Court has consistently positioned freedom of expression as a key element of the democratic system:

“VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—although not the only one—necessary for democracy to function. This freedom enables the formation of public opinion, which is essential for giving substance to several principles of the constitutional State, such as the right to information, the right of petition, and rights relating to political participation; the existence of free and consolidated public opinion is also a condition for the functioning of representative democracy. The ability of all persons to participate in public discussions is a necessary prerequisite for building a social dynamic involving the exchange of knowledge, ideas, and information, thereby enabling consensus-building and decision-making among the members of different social groups, while also providing a channel for expressing dissent, which is as necessary in a democracy as agreement.

Moreover, the exchange of opinions and information arising from public discussion helps form personal opinion; together, they shape public opinion, which ultimately finds expression through the channels of representative democracy. As the Spanish Constitutional Court itself has stated, other rights enshrined in the Constitution would be deprived of real substance, representative institutions reduced to hollow forms, and the principle of democratic legitimacy... which forms the basis of our entire legal and political order, completely distorted (Judgment 6/1981), if there were no freedoms capable of enabling that exchange, which… presupposes the right of citizens to have broad and adequate information concerning the facts, allowing them to form their convictions and participate in discussions regarding public affairs (Judgment 159/1986). (…)

Like other fundamental rights, freedom of expression is also subject to limitations, including, among others, those arising from the protection of public health.

The question the parties seek to resolve in these proceedings concerns whether the Ministry of Health may restrict the freedom of expression of the protected party, Nombre175. To answer that question, however, it is necessary to analyze the parties’ statements and the health order itself, since that order was the means used to restrict the protected party’s rights.

As an initial matter, the Chamber notes a discrepancy between the statements made by the respondent authority in these proceedings and the documentary evidence. Specifically, the report states that the health order provides:

“In videos posted on his Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates. he refers to the effectiveness of the product sodium chlorite and urges his followers to ingest it because it eliminates viruses and many other things. He further claims that the product is harmless. I transcribe part of what he states in his video: ‘…a discovery or finding made by certain people regarding the effectiveness of a product called sodium chlorite, well, specifically the active product chlorine dioxide, which, according to the results they have obtained, eliminates all kinds of germs, scientifically proven because it is used on surfaces and is generally used for cleaning and purifying water…’ ‘…It turns out that if a person drinks a little of that, a few drops of it, well, it gets rid of viruses, bacteria, and many other things like that…’ ‘…but we are not asking them to use it and accept it; what seems decent, logical, acceptable, and reasonable to me, during a crisis like the one the world is experiencing, is that they test it; if nothing happens to people, it is completely harmless…’ You are hereby informed: (…)” (Underlining added).

Nevertheless, the health order submitted into evidence contains no such transcriptions, as the relevant portion reads verbatim:

“In videos posted on his Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates. he refers to the effectiveness of the product sodium chlorite and urges his followers to ingest it because it eliminates viruses and many other things. He further claims that the product is harmless, and other shared posts claim that sodium chlorite or chlorine dioxide reacts against pathogenic germs in organisms, immediately oxidizes viruses, bacteria, fungi, and parasites, and can even be used for cancer, diabetes, and other diseases.

You are hereby informed: (…)” This Court observes a clear inconsistency between the two texts regarding an issue central to these proceedings: which statements are attributed to the protected party.

As required, the Reporting Justice (Magistrada Instructora) ordered the parties to submit the videos related to the matter sub judice (order issued at 16:27 on 18 de setiembre de 2020). Nevertheless, the respondent failed to comply with that order. In this regard, the respondent stated:

“…In response to the request to submit the posts deleted by the Facebook Legal Team in connection with the case of Mr. Nombre107, you are advised that, because this content was uploaded solely to his personal pages and the Facebook Legal Team proceeded to review and subsequently delete it, no detailed record thereof is available. What is submitted is official letter MS-DRPIS-UNC-2056-2020, addressed to Facebook’s Legal Department, which lists the URLs of the links to the posts mentioning chlorine dioxide. It cited as references the health alert entitled Products Containing Sodium Chlorite or Chlorine Dioxide, the General Health Law in Articles 107, 111 and 112, and the regulations governing the health authorization and oversight of advertising for products of health-related interest, N° 36868-S. This document shows what was posted on those Facebook pages, supported by the URL for each post; however, because they were deleted by the company’s legal team, no further details are available beyond those stated in the document…” The consequences of that failure to comply differ for the petitioner and the respondent because of the principle of the shifting burden of proof (carga dinámica de la prueba) and their respective procedural positions.

In constitutional proceedings, because the petitioner has established a restriction of the protected party’s rights (through a filing dated 10 de agosto de 2020, the petitioner complied with the Chamber’s order and submitted a copy of the health order), the shifting burden of proof requires the respondent authority to justify that restriction. In the case at bar (sub lite), the justification for the Administration’s actions and the administrative order issued lies in the alleged videos from the administrative proceeding (procedimiento administrativo); therefore, the respondent was required to preserve and submit them.

From a procedural standpoint, that obligation falls squarely upon the Administration because it has a duty to gather and preserve in the administrative record (expediente administrativo) the evidence supporting its decisions in such proceedings, so that the affected person may review the administrative record compiled against him and become fully acquainted with the circumstances of the case, a sine qua non requirement for the effective exercise of his constitutional right to a defense.

However, the videos underlying the health order at issue in this matter are not contained in the administrative record, a circumstance attributable solely to the Administration. This prevents the protected party from challenging the statements that may have prompted the State’s response and thus from defending himself. As with any procedural burden, the party that fails to satisfy it—in the matter under examination (sub examine), the State—must bear the procedural consequences of its omission.

The Chamber explains to the respondent authority that, when a person is accused of improperly exercising freedom of expression and restrictions are imposed on that right, there must invariably be certainty regarding the reasons for such exceptional measures, which may be imposed only in the circumstances permitted by the constitutional and treaty-based legal order. The Chamber reiterates that freedom of expression is essential to sustaining democracy and, accordingly, constitutes a cardinal feature of our political system. Therefore, any restriction thereof must not only have an adequate basis in positive law, whether under domestic regulations or within the framework of international human rights law, but the competent authority is also required to fully establish the factual grounds upon which it relies.

Given the summary nature of amparo proceedings (proceso de amparo), the Chamber likewise could not assume an inquisitorial role and investigate which videos may ultimately have served as the basis for the State’s actions, particularly because such an undertaking would seek to remedy omissions by State authorities, which would be at odds with its nature as a Court that protects individuals from the State.

Finally, the Chamber notes that the foregoing would not have precluded a different assessment had it been established that the protected party’s statements endangered people’s health and that the Administration’s actions were based on precise and well-founded positive-law reasoning. The Chamber reaffirms that the respondent Ministry may and must safeguard public health. (…)

POR TANTO: The writ of amparo (recurso de amparo) is granted and, consequently, health order No. MS-DRPIS-UNC-2001-2020 of 30 de julio de 2020, issued by the Ministry of Health, is vacated. (…)” (Emphasis not in the original).

Accordingly, it is evident that this Chamber’s approach is to grant protection when a health order infringes other civil liberties that are directly related to sustaining the democratic system, such as freedom of expression.

In light of the foregoing, it is critically important to consider that this amparo proceeding concerns an entirely exceptional situation because it involves one of the fundamental rights of greatest importance and significance to the people of Costa Rica and their cherished democratic system: freedom of expression. Hence, this Constitutional Court is fully justified in adjudicating the merits of this matter through amparo proceedings and ruling on the alleged facts.

B. CLOSURE OF Dirección09 THROUGH ARBITRARY, UNFOUNDED, AND DISPROPORTIONATE ACTION. The Director of the newspaper La Nación, Nombre108, together with other journalists from that media outlet, appeared before this Court and filed this constitutional relief proceeding (recurso de amparo) against Nombre138 Nombre01, as well as against the Minister of Health, because Dirección02 (a property owned by Grupo Nación S.A., to which the aforementioned newspaper also belongs) had been served with a sanitary order (orden sanitaria) requiring the complete cessation of its operations due to alleged problems involving road access to the site. Specifically, they argue that the order was enforced arbitrarily even though the technical opinions (criterios técnicos) of the Cruz Roja and the Cuerpo de Nombre140 regarding the ability of the establishment’s access road to accommodate emergency vehicles were not yet available; those opinions were submitted and communicated days later and are questionable.

They further state that they were required to submit a remedial plan (plan remedial) addressing the problem of access to the park, even though the inspectors from the respondent Ministry found no problem with such access during their inspection and even though the MOPT authorities issued a report exclusively concerning the public roads located outside the site. They mention that both the Mayor of Alajuela and community leaders have agreed that traffic congestion cannot be attributed solely to the activities conducted at Parque Viva, given that the rapid residential and commercial development that has occurred in the same area, namely La Guácima de Alajuela, must also be considered. They indicate that it was the State that created the problem by allowing the area’s urban expansion without providing the necessary public infrastructure. They maintain that, at the time of the closure, Parque Viva held all permits required at that time (including the traffic-planning study approved in 2014), and that it was even recently stated that the facilities are suitable for the activities organized there.

They add that there is a road project intended to remedy the problem (construction of a four-lane access road to Ruta Nacional No. 27), for which most permits were processed; however, to date, it has not received final approval from MOPT, and Nombre138 Nombre01 has even publicly disparaged it, stating an intention not to allow it, even though it would be financed by Grupo Nación. They state that because no deficiency could be found at Parque Viva, it was determined that the defects were on the public road, where it is the State, rather than private parties, that is responsible for providing a remedy. They contend that the problem is not Parque Viva, but rather the public infrastructure, which has made little progress over the years in adapting to the population density developed after the facility began operating. They assert that all the foregoing also prevents them from adequately exercising their right of defense (derecho a la defensa).

In view of the foregoing, they request that this constitutional relief petition be granted and that the temporary suspension of Parque Viva’s sanitary operating permit (permiso sanitario de funcionamiento), as well as the administrative acts (actos administrativos) supporting it, be annulled.

In her response, the Minister of Health referred in her report to the complaint (denuncia) filed on July 5, 2022, against the operation of Parque Viva and to the proceedings conducted in connection with it. Broadly speaking, she stated that, as a result of that complaint, the authorities of the Área Rectora de Salud de Alajuela 2 conducted an inspection and concluded that the establishment complies internally with physical, sanitary, and structural requirements; accordingly, it was recommended that the complaint be referred to MOPT so that it could assess the situation (condition of the roads, difficulty of access, etc.). The Minister states that, “accordingly,” by official letter No. MS-DM-5754-2022, she requested a technical opinion from the MOPT authorities regarding the roads providing access to the commercial premises. That authority mentions that this latter report was submitted by the MOPT authorities and indicated that the Municipalidad de Alajuela was responsible for granting access permits and that the entrance road to Parque Viva lacks sufficient capacity to handle the traffic generated.

The Minister further states that the Comité Asesor Técnico de Concentraciones Masivas subsequently agreed to propose issuing a sanitary closure order (orden sanitaria de cierre) against Parque Viva for mass events and requiring a remedial plan. That authority indicates that, on July 8, 2022, the representative of Parque Viva was indeed served with sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, which stated that, in view of the findings of MOPT and the aforementioned Comité de Concentraciones Masivas, the sanitary operating permit was temporarily suspended until the technical opinions requested from the Cuerpo de Nombre140 and the Cruz Roja regarding the ability of first-response units to use the establishment’s access road were available; those opinions were being arranged by the Ministry of Health. She also states that they were required to submit a remedial plan resolving the problem of access to the park.

The Minister states that technical reports were subsequently issued by the Cuerpo de Bomberos, the Cruz Roja, and the Sistema de Emergencias 9-1-1, from which the following may be concluded: Preventive measures must be in place to reduce risks, such as emergency plans that define adequate access routes of the width necessary to permit an effective response in the event of an emergency. The public roads in the community of La Guácima are insufficient to allow emergency units prompt access, a situation that may be aggravated during mass-gathering events (eventos de concentración masiva). Prompt and timely access by specialized rescue units is required, but the length of fire-extinguishing units makes such access difficult. Additionally, the Minister of Health states that, according to the information provided by the Sistema de Emergencias 9-1-1, a greater number of reports are received when mass-gathering events take place (concerning improperly parked vehicles, traffic jams, fights arising from the inability to leave, collisions, etc.).

She asserts that, consequently, a potentially hazardous situation does exist at the location due to the lack of safe and unobstructed access to the site, and that the administrative act at issue seeks to avoid endangering the health, safety, and lives of those attending the events, as well as those living around Parque Viva, who likewise require unobstructed access to their communities and, when necessary, adequate access for emergency services. For this reason, she states that it is essential to submit the requested remedial plan, “the contents of which must include a solution to the access problems in the communities of La Guácima de Alajuela when mass-gathering activities are held.” The Minister adds that appeals were filed against the administrative acts and denied with due respect for the right of defense, and that the temporary suspension of activities will remain in effect until a remedial plan is submitted, approved, and implemented that guarantees that mass-gathering activities at Parque Viva will not cause the access roads to collapse, create disturbances for neighboring communities, or impede the prompt and safe entry of first-response vehicles and personnel.

She also mentions that, if there are other activities that do not cause the roads to collapse, the establishment’s legal representatives must specify those activities in the requested remedial plan, as well as the number of persons per activity, so that the limits set forth in the technical opinion issued by MOPT are not exceeded. The Minister of Health maintains that the actions taken were intended to protect and preserve the environment and the health and lives of individuals; therefore, the existence of vested rights (derechos adquiridos) or settled legal situations (situaciones jurídicas consolidadas) cannot be asserted. She further states that her actions comply with the law and that she cannot grant the media outlet the differentiated or preferential treatment it seeks. Finally, she indicates that the precautionary principle in health matters (principio precautorio en materia sanitaria) was applied in this case and that the complaint was addressed and resolved in accordance with constitutional provision 41.

For his part, Nombre138 Nombre01, regarding this particular matter, stated in the report submitted to this constitutional jurisdiction that the complaint filed against Parque Viva was addressed with the greatest possible speed and diligence in order to protect the public. He explains that residents of La Guácima de Alajuela filed an anonymous complaint (denuncia anónima) with the Ministerio de Salud, in which they described what they had endured for years because of this venue and the consequences that could arise if the necessary measures were not taken urgently. He refers to several news reports published on the matter that reflect the dissatisfaction of some residents with the operation of that establishment. He asserts that, once the complaint was received, the Ministerio de Salud convened a meeting of the Comité Asesor Técnico en Concentraciones Masivas to analyze the case and that, after examining the technical report submitted by the Dirección General de Ingeniería de Tránsito—which concluded that, when mass gatherings (concentraciones masivas) are held at Parque Viva, the access road lacks sufficient capacity to handle the resulting traffic—the Committee agreed to recommend that the health authorities issue a closure order (orden de cierre) for mass events and simultaneously require a remedial plan (plan remedial) addressing the reported conditions.

Accordingly, following that recommendation, he states that the Área Rectora de Salud de Alajuela 2 issued the health order (orden sanitaria) in question, temporarily suspending the sanitary operating permit (permiso sanitario de funcionamiento) for mass events until the aforementioned remedial plan was submitted; that plan has not been submitted. He notes that the authorities have required other commercial groups to construct access roads to large shopping centers when the commencement of operations at those facilities is projected to increase traffic flow in the area where they were built, as in the cases of EPA in Desamparados and City Mall in Alajuela, which made substantial investments to comply with vehicle entrance and exit requirements. The President adds that there is also an opinion from the Dirección Regional de la Fuerza Pública de Alajuela stating that La Guácima is classified as a sensitive area because various criminal activities converge there, and that the crowds of vehicles and people outside Parque Viva reduce police mobility and result in an increase in calls from residents to 911 due to incidents involving disturbances of public order.

He explains that the Fuerza Pública referred to an incident that occurred on 7 de mayo de 2022, when assistance had to be provided to emergency responders transporting a patient because the number of people prevented the ambulance from moving quickly. He adds that the Cuerpo de Bomberos, for its part, maintained that the communities surrounding Parque Viva, as well as the venue itself, are adversely affected because the response time of Nombre140 units increases considerably due to the conditions of the roads surrounding the facility. He further contends that, given the disbelief caused by the fact that the local government had granted operating permits to Parque Viva, the Instituto Nacional de Vivienda y Urbanismo requested the project file from the Municipalidad de Alajuela. He asserts that the review of that file revealed a series of highly concerning circumstances relating to the land-use permit (permiso de uso de suelo) and the environmental viability (viabilidad ambiental) granted.

He likewise states that it was established that no traffic impact study (estudio de impacto vial) had been submitted to measure the effect of traffic flow associated with the activities conducted at Parque Viva, that authorization from the Cuerpo de Bomberos was lacking, and that no improvements to the cantonal road network providing access to the park had been required or requested. He maintains that these were not arbitrary actions, but rather measures intended to protect the lives of Costa Ricans. He notes that the Colegio de Periodistas de Costa Rica itself maintained that the situation involving Parque Viva should be addressed under the principle of legality (principio de legalidad), for which the avenue of administrative appeal (vía recursiva) is available to challenge the administrative act (acto administrativo) ordering the suspension of the sanitary operating permit; the matter could also be resolved by submitting a remedial plan.

He states that, in an article published on 27 de abril de 2021, Grupo Nación acknowledged that access conditions at the Parque Viva facilities were not the best. He maintains that Grupo Nación was given the opportunity to submit a remedial plan and has also had the opportunity to appeal the administrative decision (resolución administrativa). He states that it is not true that the Administration permanently closed the venue. He asserts that the newspaper La Nación continues to operate, but this does not mean that it will not be required to comply with the law when it is clear and evident that it is acting unlawfully and to the detriment of the rights of Costa Ricans. He further maintains that all decisions have been made in accordance with technical criteria, pursuant to a complaint filed by members of the public themselves.

Now, having set forth the arguments advanced by both parties—the petitioners (recurrentes) and the respondent authorities (autoridades recurridas) of the Ministerio de Salud and the Presidencia de la República—it is appropriate to provide a general review of the facts deemed proven (hechos que se tienen por acreditados) in this amparo proceeding (proceso de amparo) with respect to this particular claim.

First, it should be emphasized that it has been established that Grupo Nación—which includes Diario La Nación, the media outlet for which the petitioners work—acquired the facilities where the so-called Autódromo La Guácima had previously operated and created Parque Viva.

It is also established that Parque Viva obtained the required permits and was therefore granted the corresponding sanitary operating permit in the year 2015. That same year, the establishment was reopened by Grupo Nación. As part of its compliance with these requirements, it has been established that, in official letter No. DGIT-ED-5935-2014 of 1° de septiembre de 2014, an engineer from the Unidad de Permisos and the Head of the Departamento de Estudios y Diseños, both of the Dirección General de Ingeniería de Tránsito of MOPT, stated as follows:

“(…) REGARDING THE TRAFFIC IMPACT STUDY Following the review of the traffic impact study submitted—for the typical operating conditions of the Centro de Eventos La Guácima—this Unit indicates that, from a functional standpoint, it has no objection to the project. This is because the Unit confirmed that, with the implementation of the mitigation measures (medidas de mitigación) proposed on the basis of the capacity analysis performed, the levels of service (niveles de servicio, NDS) and queue lengths can be maintained at appropriate levels. Approval of this traffic impact study (EIV) shall remain valid for one year, provided that traffic conditions and the surrounding road network do not change significantly and the project is constructed before that period expires; otherwise, this Dirección General reserves the right to request that the study be updated. Furthermore, you are reminded that this authorization applies exclusively to the project submitted; therefore, any modification in size, use, or of any other kind must be analyzed by the Dirección General de Ingeniería de Tránsito in order to evaluate the new conditions, failing which this authorization shall become invalid (…)”.

Likewise, it is established that, in official letter No DVT-DGIT-ED-2015-4056 of 8 de octubre de 2015, engineers from the Unidad de Permisos of the Dirección General de Ingeniería de Transito of MOPT stated as follows:

“(…) You are hereby notified that the widening works and signage at intersection # 3 with Dirección04 for the Project: Centro de Eventos La Guácima, located in District N° 05: la Guácima, Canton NB 01: Alajuela, Province N° 02: Alajuela, on the property registered with the Catastro Nacional under number SJ-1244439- 2007, have been accepted. The permit was processed by this Department under file ED-AC-13-0081, in accordance with the design shown on sheets 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10, signed by the responsible professional, engineer Nombre39, IC-16371. This is because an inspection confirmed that the interested party had satisfactorily installed the corresponding vertical and horizontal signage, in accordance with the guidelines of the Departamento de Señalización Vial of this Dirección General and with the Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA). Based on the foregoing, this Technical Unit has no objection, from either a functional or signage standpoint—excluding the quality of the horizontal and vertical markings—to the use of the access road in question (…)”.

It is also established that the authorities of the Ministerio de Salud renewed Parque Viva’s sanitary operating permit No. MS-DRRSCN-DARSA2-RPSF-0177-2019, valid until febrero de 2024.

This Chamber likewise deems it established that, on 16 de diciembre de 2021, through official letter No. MS-DRRSCN-DARSA2-4070-2021, the Director of the Área Rectora de Salud Alajuela 2 of the Ministerio de Salud approved the declared occupancy capacities (aforos) for the amphitheater, halls, and racetrack grandstands. Specifically, 18203 occupants were permitted in the amphitheater, 12450 occupants in the halls, and 2901 occupants in the grandstands. In addition, it is established that, through official letter No. MS-DRRSCN-DARSA2-0163-2022 of 20 de enero del año en curso, those same authorities increased the occupancy capacity of the Parque Viva grandstands to 8841 occupants.

It has also been established that, at an unspecified time on 5 de julio de 2022, an anonymous complaint against the operation of Parque Viva was filed with the Office of the Minister of Health and assigned number 243-2022. On that occasion, the complainant completed the following sections of the template or form established for filing such a complaint, relating to the grounds for the complaint: “2.1. Complaints concerning the structural conditions of buildings: a) Structural problems (condition of walls, roofs, floors, among others) (…) c) Failure to comply with an emergency plan for fire prevention and protection (…) f) Safety and hygiene conditions.” In addition, the complainant expressly stated dissatisfaction with access to Parque Viva and the problems arising on the roads leading to the venue when large concerts are held. Specifically, the complainant stated:

“(…) This venue is commonly used to hold large-scale concerts attended by a large number of people. The problem with this venue lies in its access points and the limited capacity of the roads, which serve a rural community, to accommodate an enormous number of vehicles at the same time. All streets leading to Parque Viva are very narrow, single-lane roads in each direction, with no bus bays or conditions suitable for heavy traffic. Every time there is a concert, the community’s streets become completely gridlocked, to the point that people take hours to travel short distances or exit the venue’s parking lot. The situation is extremely serious because, in the event of an emergency, the response of emergency services could be compromised. We are talking about situations as dangerous as fires, earthquakes, structural collapses, shootings, and other tragic incidents that could occur during large-scale events.

The streets of la Guácima de Alajuela cannot accommodate a massive influx of vehicles, and the rights of local residents could also be impaired by such events because, in the event of emergencies in their homes or communities, emergency authorities would take far longer than usual to respond due to the enormous traffic jams generated by this venue. In view of the foregoing and given the seriousness of the reported facts, the venue’s permanent closure is requested until a solution to the problem is found. This request is made in the interest of protecting public health and the common interest. PARQUE VIVA DOES NOT MEET [sic] THE CONDITIONS REQUIRED TO HOST EVENTS INVOLVING MASS GATHERINGS. I conclude by stating that, pursuant to Article 50 of the Political Constitution, it is the State’s responsibility to ensure that the rights of the residents Nombre01 are protected and that they are afforded the greatest possible degree of well-being.

As evidence, I attach 8 photographs of the venue’s only 2 access points, which show the condition of the surrounding streets. I also attach 2 news reports describing the problem posed by the traffic jams caused by large-scale events (…)”. (Emphasis not in the original).

The record shows that, by official letter No. MS-DM-5754-2022, digitally signed at 12:24:14 hrs. on 5 July 2022, the Minister of Health urgently requested that the Minister of Public Works and Transportation and the Vice Minister of Transportation and Road Safety provide a technical opinion (criterio técnico) concerning the access roads to the privately owned commercial venue known as Parque Viva. On that occasion, the following was expressly stated: “(…) The technical opinion is required to clarify structural and life-safety matters. Accordingly, consideration must be given to the roads’ capacity under a scenario involving the enormous number of vehicles and people simultaneously attending large-scale events at that venue, in relation to matters such as potential emergencies, access and response by emergency services, risks arising from conflict situations, etc. (…)”. It was also determined that, through official letter No. MS-DM-5756-2022, digitally signed on 5 July 2022 at 12:38:24 hrs., that Minister forwarded the complaint for handling to the Director of the North Central Regional Health Stewardship Directorate of the same Ministry (an office located in Heredia). Furthermore, according to the corresponding physical stamp, the complaint was received by the Alajuela 2 Health Stewardship Area at 12:41 hrs. on that same day, 5 July.

It is deemed established that, at 13:50 hrs. on 5 July 2022, officials from the Alajuela 2 Health Stewardship Area conducted a physical and sanitary inspection (inspección físico sanitaria) at Parque Viva, as a result of which report No. MS-DRRSCN-DARSA2-1641-2022, dated 5 July 2022, was prepared and stated as follows:

“(…) According to visual inspection record (acta de inspección ocular) MS-DRRSCN-DARSA2-IT-1639-2022, a specific on-site visit was conducted on 05 July 2022 at 13:50 hours to assess the matters raised by the complainant. Regarding the reported issue, specifically the section concerning structural problems, the inspection of the venue’s interior revealed no visible structural problems related to physical and sanitary conditions; the walls, floors, restrooms, and other spaces used by people presented no observable problems. As to the section concerning noncompliance with the emergency plan (plan de emergencia), four emergency plans were found on site, corresponding to the sector-based arrangement implemented by the company for its facilities, with a specific plan for the Event Center, the Coca Cola Amphitheater, the Competition Circuit, and the Common Areas. The inspection confirmed that the corresponding signs were installed and that firefighting equipment and the relevant supplies (food, first-aid kit, splints, among others) were present. Regarding safety and hygiene conditions, the inspection revealed no hazards or unsafe conditions that could affect the physical well-being of the company’s employees.

Regarding the road traffic problem identified by the complainant, it should be noted that this matter does not fall within the jurisdiction of the Ministry of Health. Nevertheless, the facilities’ entry and exit points were analyzed. As shown in Annex 1 (anexo 1), the facilities have four access points for vehicles to enter and exit, as well as capacity for 940 automobiles in the parking lot near access point 2. There is also space for 3000 vehicles in the competition-circuit sector located near Dirección06. In addition, the four access points are shown to be interconnected throughout the facilities (an inspection was conducted to verify this), which facilitates vehicle departures. 3. CONCLUSION. Based on the foregoing, it may be concluded that the interior of the Parque Viva facilities meets appropriate physical, sanitary, and structural conditions. The emergency plans will be forwarded to the Regional Occupational Health Officer for assessment and an in-depth review. It is also recommended that the complaint be forwarded to the Ministry of Public Works and Transportation so that it may assess the reported conditions falling within that agency’s jurisdiction (roads in poor condition, only one lane in each direction, difficulty for emergency services to gain access via public roads, among others) (…)”. (Emphasis not in the original).

This Court deems it established that, by virtue of the request submitted by the Minister of Health on 5 July 2022 at 12:24:14 hrs., the Vice Minister of Public Works and Transportation sent the Minister official letter No. DVTSV-2022-0341, dated 6 July 2022, requesting that official letter No. DVT-DGIT-2022-DVT-DGIT-2022-334, sent by email on the afternoon of the previous day (that is, 5 July 2022), be rendered without effect so that additional information could be included in the analysis of access to Parque Viva. On that occasion, official letter No. DVT-DGIT-2022-339, signed on that same 6 July 2022 by the Director General of Traffic Engineering, was also attached and expressly stated as follows:

“(…) 1. Parque Viva is a venue that opened its doors in 2015 and is used to hold various types of events, such as motor-sport events, conferences, trade fairs, and mass-gathering events such as concerts and festivals. 2. According to the information provided on the Parque Viva website, the venue has a capacity of up to 20.000 thousand people. It also has 4.900 private parking spaces, which can be expanded to as many as 6.000 spaces by using the racetrack. 3. At present, the Directorate General of Traffic Engineering has no pending request relating to the existing access to Parque Viva. Nor has it conducted any functional study of the roads under a scenario involving a large-scale event of the type held at the venue. 4. Parque Viva is [sic] located opposite a cantonal road known as Dirección02. Because it is a cantonal road, the Municipality of Alajuela is responsible for granting access permits (…) 5.

Dirección05 is a two-lane urban street, with one lane in each direction of travel. Roads of this type could reach a maximum capacity of approximately 1.200 vehicles per hour in each direction. Depending on the road’s conditions, a detailed study could determine a capacity lower than the one indicated. Based on the aforementioned data, it can be stated with certainty that, when mass-gathering events are held, the road providing access to Parque Viva lacks sufficient capacity to handle the traffic generated. Under a conservative scenario, without considering parking areas outside the park or use of the racetrack, 4.900 vehicles per hour would be generated, representing more than twice the volume the road could accommodate (…)”. (Emphasis not in the original).

The record shows that, by virtue of all the foregoing, the Technical Advisory Committee on Mass Gatherings held an extraordinary session on 7 July 2022 at 14:30 hrs., attended by the Minister of Health in her capacity as coordinator, the Minister of Public Works and Transportation, officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System, and the Ministry of Health’s Risk Management unit. The minutes of that session, No. 28643-S-MOPT-SP, stated as follows:

“(…) Based on the powers established by Article 4 of decreto ejecutivo 28643, the Committee proceeds to consider the case. Mr. Nombre40 of the Ministerio de Salud, at the request of the Minister, reads document number MS-DRRSCN-DARSA2-1641-2022 from the Área Rectora de Salud Alajuela, which is related to official letter MS-DM-5756-2022 from the Ministra de Salud. Mr. Nombre41 speaks. He puts the situation regarding the access roads into perspective. Mr. Nombre42 reads report DVT-DGIT-2022-339 (addressed to the Ministra de Salud with note DVTS-2022-0341). The Minister speaks. Mr. Nombre43 of the Cuerpo de Nombre140 speaks and points out the difficulties faced by the Cuerpo de Nombre140 in gaining access due to the type of emergency units available, which measure 11 meters long and 3 meters wide, making passage difficult when vehicles are parked on both sides. The access roads must be widened, or there must be another access point with sufficient space for the movement and access of emergency units.

Mr. Nombre41 speaks. He notes the inappropriate land use (uso del suelo). The road must be widened to ensure adequate traffic flow during events and emergencies arising during events. That tertiary cantonal road must be improved. There is a risk to human life. Mr. Nombre44 of the Comisión Nacional de Emergencias speaks. There is a valid operating permit (permiso de funcionamiento). Caution must be exercised, and the reality of the country must be considered. Mr. Nombre40 speaks. There are other places with similar situations. The Ministra de Salud speaks, responding to the statements made by Mr. Nombre145. Mr. Nombre45 speaks. The venue has had problems since it was the Dirección03. It has only one access road, and that poses a problem because it is necessary to pass through residential areas. There are still no regulations governing mass events. In this case, Parque Viva is not suitable for mass events.

Nombre46 speaks he (sic) states that, since 01 de enero del 2022, there have been 18 reports so far this year of traffic problems, more than 30 collisions, 4 reports of improperly parked vehicles, 5 fights, 3 incidents involving public-order disturbances, among other reports. Mr. Nombre47 speaks. He expresses concern regarding the number of ambulances serving each event, which sometimes does not exceed a single unit.

RESOLUTION (ACUERDO): Having reviewed the aforementioned official letters and the recommendation of the Ministerio de Obras Públicas y Transportes to take a course of action in response to the situation concerning the capacity of the access road to the venue known as Parque Viva, it is resolved to propose that the relevant authorities issue a sanitary closure order (orden sanitaria de cierre) prohibiting mass events at the establishment known as Parque Viva, together with such measures as may be appropriate in coordination with other relevant authorities. A remedial plan (plan remedial) addressing the reported conditions must be requested and, if submitted, must be brought to the attention of this Comité Asesor Técnico de Concentraciones Masivas (…)”. (Emphasis not in the original).

The authorities of the Ministerio de Salud, MOPT, Cuerpo de Bomberos, Comisión Nacional de Emergencias, and Cruz Roja Costarricense, through their representatives on that Committee, voted in favor of the proposal.

It is also established that, based on the foregoing, the authorities of the Área Rectora de Salud Alajuela 2 of the Ministerio de Salud issued sanitary order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 on 8 de julio de 2022 (electronically signed at 12:37:21 hrs.), ordering the closure of Parque Viva under the following terms:

“(…) In response to anonymous complaint N° 243-2022, forwarded (sic) by official letter MS-DM-5756-2022 from the Office of the Ministra de Salud concerning apparent structural problems, failures to comply with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in visual inspection report (acta de inspección ocular) MS-DRRSCN-DARSA2-1639-2022, on 05 de julio del 2022 at 13:50 horas, the corresponding site visit was conducted to assess the matters identified in the complaint. Likewise, in accordance with the precautionary principle (principio precautorio) and pursuant to official letters MS-DM5814-2022, by which Technical Report DVT-DGIT-2022-339 issued by the Dirección General de Ingeniería de Transito of the Ministerio de Obras Públicas y Transportes was transmitted, and MS-DM-5838-2022, by which Minutes N°28643-SMOPT-SP of the Comité Asesor Técnico en Concentraciones Masivas were transmitted, the following administrative act (acto administrativo) orders the temporary suspension of Sanitary Operating Permit (Permiso Sanitario de Funcionamiento) MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting and cultural events, fairs, and various exhibitions) until the technical opinions (Criterios técnicos) issued by the Benemérito Cuerpo de Nombre140 de Costa Rica and the Benemérita Cruz Roja Costarricense concerning the capacity of the access road to that establishment for the first-response units of those institutions—which are currently being requested by the Ministerio de Salud—are available for analysis and for the adoption of the corresponding measures.

Likewise, the entity you represent must submit a remedial plan addressing the access problem and the resulting risk to Public Safety and Health posed by the holding of Mass-Gathering Activities (Actividades de Concentración Masiva) and by the occurrence of a potential emergency during such activities (…)”. (Emphasis not in the original).

Additionally, it has been established that the administrative act referred to the consequences of failing to comply with the order and stated that a motion for reconsideration with a subsidiary appeal (recursos de revocatoria con apelación en subsidio) could be filed against it within five business days following notification. This sanitary order was served on the representative of Parque Viva on 8 de julio de 2022 at 12:40 hrs. (by email), stating that “important annexes” were attached. In addition, personal service (notificación personal) was carried out that same day at 14:15 hrs..

It is now established in the record (autos) that, also on 8 de julio de 2022, the Ministra de Salud, by official letter No. MS-DM-5870-2022 digitally signed at 17:05:24 hrs, requested that the Director of the Cuerpo de Nombre140 and the President of the Cruz Roja Costarricense provide “(…) detailed and comprehensive reports, from within their respective areas of authority, regarding the situation at Parque Viva in La Guácima de Alajuela in the context of mass events and situations posing risks to human health and life. The foregoing is intended to supplement the matter discussed at the meeting of the Comité Asesor Técnico en Concentraciones Masivas held last Thursday, 7 de julio de 2022. The foregoing is requested as soon as possible (…)”.

It is established that, in response to the foregoing request, the following technical reports were submitted to the respondent Ministry (Ministerio recurrido):

• a)Technical report No. CBCR-027150-2022-OPB-00741 dated 10 de julio de 2022, signed by an official of Operaciones de Bomberos, which stated the following:

“(…) Regarding the situation at Parque Viva, located in La Guácima de Alajuela, in the context of mass events and situations posing risks to health and Human life, he stated (sic): The fire engines of the Benemérito Cuerpo de Nombre140 de Costa Rica are approximately 11 meters long and 3 meters wide; this means that sufficient space is required for maneuvering, whether near the scene of a fire or while traveling to the site of the emergency. The width of the road normally used to reach Parque Viva is approximately six meters along most of its route. As can be seen in this photograph, a bus and a passenger vehicle cannot travel normally at the same time; for them to pass, one of the two must stop and yield (…) There are also sections where the width narrows to almost four meters, meaning that a Nombre140 unit requires the entire available space to pass, as illustrated by the following photographs (…) Because of the road’s width, there are sections where passing maneuvers cannot be performed (…) As a result of the situations described above, several communities, including Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the Parque Viva facilities themselves, could be affected because the response time of Nombre140 units increases considerably; furthermore, when roads are blocked, access to the communities becomes impossible, placing lives and property at risk (…)”.

• b)Technical report No. CRC-GG-SO-OF-074-2022 dated 11 de julio de 2022, signed by the Deputy Operations Manager of the Cruz Roja Costarricense, which stated the following:

“(…) As a first-response institution, we have extensive experience providing assistance at mass events of various kinds and in different locations. The Cruz Roja Costarricense has had to treat patients in connection with the activities held there, owing to the number of people attending the various activities, which, depending on the event, may amount to several thousand people. (…) With regard to events held at Parque Viva, it must be clarified that the Cruz Roja Costarricense does not provide coverage for such activities; rather, the companies organizing the events hire private ambulance companies that provide this type of service. It should be noted that approximately 70 private companies in the country provide prehospital patient-transport services (servicio prehospitalario de traslado de pacientes). Accordingly, it is clarified that the videos circulating on social media showing several ambulances associated with responses to emergency cases in Dirección09 do not depict Cruz Roja ambulances.

Accordingly, our longstanding recommendation within this Comité Asesor Técnico has been to emphasize the importance of establishing regulations governing mass events. We are aware that the Ministerio de Salud has the Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud and that the Ministerio de Seguridad Pública has the Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. However, approximately 6 years ago, it was suggested that work be conducted using the Maurer Algorithm (Algoritmo de Maurer), which is used in Germany. Generally speaking, based on the experience of the Cruz Roja Costarricense, any location where mass events are held must have an entrance and an exit for all vehicles attending the events, allowing emergency vehicles to circulate adequately both to respond to incidents at the event site and in surrounding areas, as well as roads permitting the mass evacuation (evacuación masiva) of participants if a threat is activated, and it must have an updated Emergency Plan (Plan de Emergencias) that provides for an appropriate number of ambulances in proportion to event attendance (…)”.

• c)Technical report No. CRC-GG-OF-012-2022 dated 12 de julio de 2022, signed by the General Manager of the Asociación Cruz Roja Costarricense—in follow-up to the statements contained in the preceding report No. CRC-GG-SO-OF-074-2022—which reported the following:

“(…) In the specific case that is the subject of this inquiry, it is known that the public roads in the community of La Guácima de Alajuela and surrounding areas are insufficient to allow our emergency units rapid access when responding to ordinary incidents, a situation that may be aggravated when mass events are held, since we have learned of situations in which a mere mechanical failure of a private vehicle substantially delays the arrival of our ambulances. Historically, the response times of the various institutions attending emergencies have been affected by traffic congestion at different points throughout the national territory. This situation also occurs in La Guácima de Alajuela, where the travel times of emergency vehicles increase to varying degrees, causing delays ranging from 10 minutes to 30 minutes. In some specific cases, the arrival or departure of our vehicles has taken even longer due to the number of vehicles parked along the sides of the public roads surrounding the event venue, and even due to people walking on the public roads, which requires vehicles to proceed with greater caution.

In this particular case, the operational structure of the Benemérita Cruz Roja Costarricense has worked with three response scenarios for an analysis of the situation that enables the authorities to make decisions within their respective jurisdictions. 1. Traffic accidents: when responding to a traffic accident, depending on its severity, various resources must arrive, including ambulances, rescue trucks, and even the presence of the Cuerpo de Nombre140 de Costa Rica. It should be noted that there may be cases in which patients are trapped as a result of the incident, requiring specialized rescue equipment to be brought to the scene according to the circumstances. In all cases, patients require immediate attention because, in some instances, their lives may be in imminent danger. 2. Structural fires: when responding to structural fires, the Cuerpo de Nombre140 generally responds to extinguish the fire, and the Cruz Roja Costarricense attends the scene to treat patients.

Therefore, depending on the scale of the incident, the amount of resources arriving at the scene could be affected by the difficulty of accessing the facilities at risk and evacuating patients. 3. Medical cases: Depending on the severity of the case, the patient must receive prompt attention, since delays in response times adversely affect the person’s prognosis and may potentially endanger their life. For example, in the case of cardiorespiratory arrest, access to the patient is ideally required in less than 10 minutes. Furthermore, depending on the circumstances, the Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV) at the scene may require support from another Advanced Life Support Unit (USAV), since this second ambulance has more highly trained personnel, more equipment and, therefore, greater response capabilities, thereby offering a better opportunity to protect the patient’s health. It should be noted that when two or more units are present at the scene of the incident, a large and safe area will be required so that rescuers can provide care (…)”.

The record also shows that other reports concerning this same matter were submitted to the Ministra de Salud, namely the following:

Technical report No. 911-DI-2022-2202 of 11 de julio de 2022, through which the Directora del Sistema de Emergencias 9-1-1 addressed events that occurred in areas surrounding Parque Viva on specific dates, namely 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (e.g., situations involving traffic problems, improperly parked vehicles, fights among individuals, an unconscious person and another person who was missing, etc.).

Also, official letter No. DM-2022-3121 of 11 de julio de 2022, through which the Ministro de Obras Públicas y Transportes stated the following:

“(…) Regarding the situation arising from the temporary closure of Parque Viva, subject to remedial measures, the Ministerio de Obras Públicas y Transportes issues the following opinion, taking into consideration that: Parque Viva contains multiple land uses (usos de suelo) that may produce a mass gathering, understood as temporary events that bring together an unusually large number of people under crowded conditions in open and/or enclosed physical spaces which, because of the characteristics of the site, constitute a risk or threat scenario requiring preventive measures to control the use of the space. Parque Viva has a 9000 m2 industrial building, which is estimated to attract 6593 vehicles based on a reference consisting of 3 similar events in Reino Unido (…) Parque Viva has a capacity of 20.000 people and, using an occupancy rate of 3 people per vehicle (…), this yields 6667 vehicles per hour. It is estimated that the adjacent road has a maximum capacity of 800 vehicles per hour at level of service E, because it is a two-way road measuring 4 m to 6 m in width. IT IS RECOMMENDED: A maximum gathering of 2400 people at mass event (sic), in view of the current conditions of the access routes and surrounding roads, in order to ensure an adequate flow of vehicles entering and leaving the site (…)”.

It was likewise demonstrated that the five preceding technical reports (No. CBCR-027150-2022-OPB-00741 from the Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 and No. CRC-GG-OF-012-2022 from the Cruz Roja Costarricense, No. 911-DI-2022-2202 from the Sistema de Emergencias 9-1-1, and No. DM-2022-3121 from the Ministerio de Obras Públicas y Transportes) were not disclosed to the legal representative of Parque Viva until 15 de julio de 2022, by means of official letter No. MS-DRRSCN-DARSA2-1724-2022. That official letter also upheld the provisions of the aforementioned health order (orden sanitaria) and expressly stated the following:

“(…) Once those documents had been reviewed and analyzed in accordance with the provisions of the referenced order, it was demonstrated that they indicate the existence of a clear problem affecting the response to emergencies (traffic accidents, structural fires, medical cases, among others) by the First Response Agencies, both in the surrounding communities and for persons attending the mass-gathering events held at Parque Viva, due to traffic problems and difficulties accessing the venue. Therefore, in accordance with the precautionary principle (principio precautorio) and in order to ensure compliance with Articles 21 and 50 of the Constitución Política, Articles 11, 152, 153 and 154 of the Ley General de la Administración Pública, and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 and 364 of the Ley General de Salud, Health Order MS-DRRSCN-DARSA2-OS-0386-2022 (sic) is upheld in all its terms and effects (…)”.

It has likewise been deemed established that, one day before this last official letter was served, namely on 14 de julio de 2022, the representatives Nombre03 filed a motion for reconsideration (recurso de revocatoria) and, in the alternative, an appeal (apelación en subsidio) against the provisions of health order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated 8 de julio de 2022. According to the Ministra de Salud, those challenges have already been decided and dismissed.

Additionally, it is important to consider other facts that have been deemed established in this amparo proceeding (amparo) and that are related to those set forth above.

Thus, it should be noted that the record shows that Nombre138 Nombre01 received official letter No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of 10 de julio de 2022, through which the Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela informed the Viceministro de Seguridad Pública of the impediments encountered when responding to police incidents in the area outside Parque Viva while activities are being held at that establishment. The official letter stated that those activities cause enormous traffic jams, substantially increasing police response times for emergencies reported through 911 that fall within the jurisdiction of the Fuerza Pública. It further indicated that mass events cause an increase in offenses against property and greater recourse to the Fuerza Pública due to disturbances of the peace, fights, violence against women, reckless driving, consumption of alcohol and drugs on public roads, etc. Accordingly, it maintained that “(…) the impact on police services during mass events in the aforementioned area is evident, notorious, frequent, and recurring, given that the various forms of criminal activity generated by the enormous influx of visitors affect the ordinary activities of the area’s population and day-to-day police operations (…)”.

The record also shows that, by official letter No. PE-243-07-2022 of 29 de julio de 2022, the Presidenta Ejecutiva del INVU informed Nombre138 Nombre51 of a series of matters related to the so-called Parque Viva, following a review of the case file held by the Municipalidad de Alajuela. Broadly speaking, it was stated on that occasion that the granted land-use authorizations were inconsistent with the zoning plan (plan regulador) approved in 2004; that environmental feasibility (viabilidad ambiental) had been granted solely for improvements to the racetrack; that there was no record of any traffic impact study (estudio de impacto vial) having been submitted to MOPT or to the municipality to measure the impact of traffic flow, because none had been requested; and that no improvement to the cantonal road providing access to the complex had been required either. It was also demonstrated that, on 3 de agosto de 2022, the Municipio de Alajuela issued a statement through its official Facebook page refuting the assertions made by INVU. It did so in the following terms:

“(…) REGARDING THE PUBLICATIONS CONCERNING THE OPINION ISSUED BY INVU ON PARQUE VIVA, WHICH HAVE CIRCULATED IN VARIOUS MEDIA OUTLETS TODAY. Regarding the information that has circulated in various media outlets concerning the PARQUE VIVA project, based on a report issued by the Instituto de Vivienda y Urbanismo, INVU, the first point that must be made is that the Municipalidad de Alajuela has not been notified of that report; consequently, our knowledge is limited to the publications released by those media outlets. Moreover, these are assessments made by that institution without consulting this municipality. It is important to clarify several points. 1. LAND-USE DESIGNATION (USO DE SUELO). The zoning (zonificación) of property Dirección07 was not modified because, under the applicable current Plan Regulador Urbano, the aforementioned property is located in an area designated as a green zone (zona verde), regulated by Art 56, Plan Regulador Urbano.

In its analysis, INVU overlooks the provisions of Article 60 of the Plan Regulador Urbano, which states that if, 5 years after publication of the Plan Regulador, the Municipality has not acquired these lands designated as green zones, they acquire the neighboring zoning designation that least adversely affects the user. This provision was applied in this case; as stated in the land-use designations, the area is a medium-density residential zone. Therefore, the project’s land-use designations are correct. 2. REGARDING ENVIRONMENTAL VIABILITY (VIABILIDAD AMBIENTAL), the resolution approving the environmental viability reviewed by the Municipalidad de Alajuela for purposes of processing the construction permit (permiso de construcción) for the Parque Viva Project is correct and describes the works in general terms. Those works match the plans submitted and duly approved beforehand by the other institutions and by the Colegio Federado de Ingenieros y Arquitectos, as recorded on the APC platform.

The project title, that is, the Nombre141 by which it is identified in the case file, changed over time, but this did not affect the nature of what was analyzed, much less the nature of the works (trade name). The fact that the company changed the project’s Nombre141 does not alter the nature of the works. 3. REGARDING “THE LACK OF UNIFORMITY IN THE LAND-USE DESIGNATIONS” The analysis was conducted consistently and uniformly in every case, under the principles of legality and the prohibition against singular derogation from laws (inderogabilidad singular de las leyes). The only thing that changed from 2014 onward in the successive land-use designations was how the information was presented. Minutes concerning the land-use designations were attached to the case file and may be reviewed to confirm the foregoing. 4. TRAFFIC IMPACT (IMPACTO VIAL), Article (sic) 12.7 of Alajuela’s Plan Regulador Urbano requires the submission of a traffic impact study (estudio de impacto vial) for the FINAL APPROVAL (sic) of the project, not for the issuance of land-use designations; in other words, it applies to the construction permit.

Regarding this matter, one may review the requirements imposed by the Municipality for this or any other project, based on the regulations governing the subject. For final approval of the construction permit (sic), this local government reviews the environmental viability granted by SETENA, since that entity, as part of its analysis, always verifies the traffic impact of new projects. According to the review of the SETENA case file, that entity considered the materials shown in the plans sufficient and issued the corresponding approval on that basis. Accordingly, the provisions of Ley 8220 and its amendments, and its Reglamento, were observed, and, in adherence to the principle of respect for jurisdictional authority, SETENA’s opinion was respected. Furthermore, it is important to recall that the project obtained due approval of the Traffic Impact Study from MOPT’s Dirección de Ingeniería de Tránsito through resolution N° DGIT-ED-5935-2014. 5.

RECORDS REGARDING THE CONSTRUCTION PROCESS, If the final permit was granted, this means that any situation that may have been reported was corrected. 6. REGARDING THE NOTATIONS MADE BY OTHER INSTITUTIONS, The Municipalidad de Alajuela does not act in place of other institutions in performing its duties; those institutions may review the case file and conduct the corresponding on-site inspections to verify compliance with their requirements. In any event, it is important to note that, as shown in the case file, each notation was addressed to the satisfaction of the respective institution, which resulted (sic) in approval by CFIA. According to the case file, contract OC626867, dated 13-11-2013, states that “the project is approved, with the institutional observations having been addressed by the professional.” Ultimately, this local government, through the Actividad Control Constructivo, is fully willing to clarify any questions that may arise concerning this project, and we reaffirm that all our actions have been consistent and in accordance with the regulations governing the subject (…)”.

Likewise, it is important to consider that it has been demonstrated in this matter that Grupo Nación (since at least 2019, many months before it was notified of the health order (orden sanitaria) under review) began a project to build, over the coming years, a four-lane access road connecting Dirección05 with Parque Viva (or with the future project known as Ciudad Viva). In 2021 and early 2022, this project received preliminary approval from a number of government agencies. Thus, it is recorded that, through official letter No. DVT-DGIT-ED-2021-1845 of 21 de septiembre de 2021, an engineer and the deputy head of the Departamento de Estudios y Diseños of the Dirección General de Ingeniería de Tránsito of the Ministerio de Obras Públicas y Transportes stated the following: “(…) This Directorate maintains its position of having no objection to the proposal from the functional and road-safety standpoints, as issued on 13 de julio del año en curso through official letter DVT-DGIT-ED-2021-1347; it therefore considers approval of the aforementioned preliminary design (anteproyecto) appropriate (…)”.

Through official letter No. GCTT 34-2021-0340 of 28 de septiembre de 2021, the Acting Manager of the Gerencia de Contratación de Vías y Puentes of the Consejo Nacional de Vialidad stated the following: “(…) Regarding the project identified in the reference, following its review by engineers from the various technical areas of the Dirección de Diseño de Vías y Puentes, it is determined that: The requested information was provided; however, it is clarified that, during the design stage, the minimum roundabout radii, turning radii, and geometric alignments for the project’s design vehicle must be observed. In light of the foregoing, approval of this Preliminary Design is recommended (…)”. Through official letter No. CNC-APM-SJC-0608-2021 of 12 de octubre de 2021, the Project Manager of the Concejo Nacional de Concesiones, among other matters, decided to grant “No objection” to the preliminary design for access from national route No. 27 to Ciudad Viva.

Through official letter No. CCAR-2021-373 of 28 de octubre de 2021, the Secretary of the Comisión de Carreteras de Acceso Restringido of the Consejo Nacional de Vialidad stated that the commission had agreed to “(…) approve the preliminary design in accordance with the reports of the technical units (…)”. Through official letter No. DVT-DGIT-ED-2022-0088 of 18 de enero de 2022, an engineer and the deputy head of the Departamento de Estudios y Diseños of the Dirección General de Ingeniería de Tránsito of the Ministerio de Obras Públicas y Transportes stated the following: “(…) This Directorate has no objection to the proposal from the functional and road-safety standpoints and therefore considers approval of the aforementioned project appropriate (…)”. As shown by the record, this project has not been approved to date.

It is also recorded that, regarding this road project, the President stated the following at a press conference held on 13 de julio de 2022:

“(…) Did you hear the blatant lie published by La Nación, claiming that it has been requesting access to Dirección04 for two years in order to improve Parque Viva? Oh no—well, if we are going to score one goal, let us score four more, because the area for which they wanted to obtain the permit was four times as large. Are you not ashamed of bringing Dirección01 to a standstill, putting at risk all of the western region, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas? (…)”.

For purposes of deciding this aspect of the appeal (recurso), it is likewise important to take into account the contents of the news article published on 13 de julio del presente año, entitled “Alcalde de Alajuela: Parque Viva received its permit before the urban expansion in la Guácima,” which reads as follows:

“(…) Nombre50, mayor of Alajuela, stated that the traffic congestion occurring in la Guácima, Alajuela, is not caused solely by Parque Viva, but is also attributable to the district’s substantial residential growth and the new condominium developments built in the area. “There has been very substantial growth in the district of la Guácima which, combined with the activities and the large number of people entering the district, clearly does cause traffic congestion. “I am open to negotiating and putting the matter on the table; viable solutions must be developed for the district, and the problem should not be blamed on X or Y or generalized,” Nombre147 explained. “We must look at the reality. The park was built almost ten years ago, and over these ten years there has been a substantial change in the urban development of the district of La Guácima; in other words, there are more people and more condominiums,” he added.

Since 2014, 44 condominiums have been approved in the district, for example. The municipal authority also stated that, although the municipality has invested nearly 1000 million in that district and construction will soon begin on a bridge leading to the community of San Antonio de Alajuela, this is insufficient, and more resources are needed for the entire canton. “The municipality has made investments, but perhaps not enough. Why? Because, as a local government, we have limited resources and 14 districts to serve, with a canton-wide road network of more than 421 kilometers. For that network, a municipality such as Alajuela does not have sufficient resources, and it must serve all 14 districts of the canton, not merely one. Improvements must be made; I am aware of that as mayor,” Nombre147 stated. In setiembre del 2014, the Ministerio de Obras Públicas y Transportes (MOPT) approved Parque Viva’s road-planning study and required that access points to the site be built from the various routes leading there and that vertical and horizontal road signage be installed, all of which had to be completed one year later.

During an inspection conducted by the Ministry in 2015, it was confirmed that the property had complied with the requirements. This Wednesday, Nombre138 Nombre51 stated at a press conference in Dirección06 that the permit should never have been granted and that the case file would be requested from the Municipalidad de Alajuela, while the involvement of the defensora de los Habitantes, Nombre52, would also be sought. At that time, the current mayor was a municipal council member and stated in this regard: “The permit was granted under the authority of the municipal administration, which was the body with jurisdiction to approve it; the case file contains a permit from Salud and from many institutions (…)”. (Emphasis not in the original).

In that same line of reasoning, the record shows that, at an expanded district council session held on 13 de julio de 2022, the council member and resident of La Guácima de Alajuela, Nombre19, referred to the problem associated with urban development in that area. It was established that, on that occasion, the council member stated that, from 2010 to the present, 48 urban development projects have been approved in La Guácima “(…) not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (…)”; in his view, this reflects a traffic reality that is incompatible with roads designed thirty years ago. Specifically, on that occasion, the council member also stated the following:

“(…) There are traffic jams here every day, at seven in the Dirección07 and at five in the afternoon, whether or not there is a concert. If an accident occurs today in central Guácima, La Guácima comes to a standstill because there is nowhere else to go. If an accident happens today or a utility pole falls, as happened a few months ago, (…) we have to make a detour through San Miguel, with the risk that our vehicle may not be in a condition to make that trip (…) That is the reality of the district, which has serious road limitations. When I joined the Concejo Municipal de Alajuela, I promised that I would not vote for a single additional urban development project in the Concejo Municipal until the alternative routes were approved (…) To date, (…) the municipality tells me that it has no budget for alternative routes, so what does that mean? The situation remains exactly as it is today, with or without Parque Viva, because there is no budget, there is no money for these alternative routes (…) I honestly am very glad that what happened with Parque Viva occurred (…) because today the entire national press is talking about a problem that La Guácima faces every day.

It was because it was Parque Viva, because if (…) a bus had overturned or anything else had happened, nobody would care; the problem would remain. And fortunately it was Parque Viva, because Parque Viva has the voice to say that there is a problem here, and it is a real problem, because when there is an event, we also come to a standstill (…)”. (Emphasis not in the original).

Finally, with regard to the body of evidence, it is important to note the findings of the Contraloría General Nombre01 in the document entitled Operational Audit Report on the Effectiveness and Efficiency of the Use of Cantonal Road Network Resources in the Municipalidad de Alajuela, dated 14 de julio de 2022 (report No. DFOE-LOC-IF-00014-2022). Specifically, the conclusions section stated the following:

“(…) 3.1. Based on the established indicators and criteria, it was determined that it is not possible to guarantee that the management of the cantonal road network service under the responsibility of the Municipalidad de Alajuela is effective in fulfilling its purposes and objectives relating to mobility, road safety, and the resilience of that network, or that the allocated resources are used in accordance with the principle of efficiency. 3.2. In this regard, although road maintenance work has been performed, primarily on the roadway surface, along with road-safety activities, significant limitations persist in the coverage and improvement of the roadway surface, in addressing other structures essential to road infrastructure (bridges and sidewalks), and in addressing road safety and the resilience of the cantonal road network on the basis of technical elements that reasonably guarantee the effectiveness of municipal actions in these areas. 3.3.

With respect to efficiency, it was established that the Municipalidad de Alajuela lacks the fundamental minimum elements and sound practices necessary to implement management aimed at complying with this principle; this situation reflects the need to foster an organizational culture that views the use of data and management indicators as an indispensable mechanism for improving management in order to serve the public interest. 3.4. Finally, to meet the challenges facing our country, such as Sustainable Development Goal No. 11 (Sustainable Cities and Communities), and to advance the goal of leaving no one behind, it is necessary to broaden the perspective from which the cantonal road network is managed, so that such management adopts a comprehensive perspective on the problems involved and an inclusive and participatory vision encompassing all populations living in the territory, with particular emphasis on populations experiencing the greatest disadvantages and vulnerability (…)”.

In addition to the foregoing, it is important to note that it has not been established in this matter that, before Parque Viva began operating, its representatives were required to construct access routes outside the premises or to submit a plan addressing the road-related problems. Nor has it been established that the representatives of Parque Viva were notified of the provisions of official letters No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 from the Dirección de la Fuerza Pública de Alajuela and No. PE-243-07-2022, signed by the Executive Presidency of INVU.

Having analyzed the arguments presented by the petitioners, the reports submitted under oath by the respondent authorities, and the evidence presented by both parties, this Sala Constitucional finds that, indeed, as alleged, the issuance of health order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 dated 8 de julio de 2022 (electronically signed at 12:37:21 hrs.) constitutes a manifestly arbitrary administrative act (acto administrativo), lacking a sound basis, precipitous, and wholly disproportionate. This conclusion is reached on the basis of the following relevant considerations:

• 1)This Sala notes that Parque Viva was closed through an administrative act (health order) lacking a statement of reasons or sound basis, which, in turn, constitutes a breach of due process (debido proceso) and the right of defense (derecho a la defensa), as this Tribunal Constitucional has held in extensive case law (see, among others, the provisions of Judgments Nos. 7924-1999 at 17:48 hrs. on 13 de octubre de 1999, 6535-2006 at 11:34 hrs. on 12 de mayo de 2006, and 14362-2022 at 09:20 hrs. on 24 de junio de 2022). This assertion is based on the following: a) The health order did not refer to the legal grounds that prompted its issuance, that is, the provisions of our legal system on which it was based. b) It states that the temporary closure was issued preliminarily pursuant to the provisions of visual inspection report No. MS-DRRSCN-DARSA2-1639-2022 prepared by officials of the Área Rectora de Salud de Alajuela 2, technical report No. DVT-DGIT-2022-339 signed by the Director General de Ingeniería de Tránsito, and the statements recorded in minutes No. 28643-S-MOPT-SP by the Comité Asesor Técnico de Concentraciones Masivas.

However, for the reasons explained in greater detail below, the statements contained in those instruments are neither persuasive nor a valid basis for this Tribunal to uphold that measure, because the matter attributed to Parque Viva relates exclusively to the access roads to the premises (located outside them), and not to any irregularity found at the site itself. c) The act in question ordered the closure of the Parque Viva facilities even though, at that time, the technical assessments that the order stated needed to be collected were not yet available and the Ministerio de Salud had only begun requesting them from the Cuerpo de Nombre140 and the Cruz Roja Costarricense. It should be noted that the foregoing demonstrates that the onerous order closing Parque Viva to all types of activities was issued and enforced without valid and compelling technical assessments supporting that course of action.

That is what the provisions of the health order convey, and this clearly amounts to nothing other than arbitrariness committed by the public administration. It must be emphasized that it was not until 8 de julio de 2022 itself (hours after the health order under review had been served on the representative of the premises) that the Ministra de Salud—by official letter No. MS-DM-5870-2022, signed at 17:05:24 hrs.—ordered that only the aforementioned authorities of the Cuerpo de Nombre140 and the Cruz Roja Costarricense be asked to provide “detailed and comprehensive” reports concerning Parque Viva “in the context of holding mass events”; those reports were not issued until 10, 11 y 12 de julio de 2022 (reports Nos. CBCR-027150-2022-OPB-00741, CRC-GG-SO-OF-074-2022, and CRC-GG-OF-012-2022). The record further shows that, on 11 de julio of the current year, additional reports were prepared by the Directora del Sistema de Emergencias 9-1-1 (report No. 911-DI-2022-2202) and by the Ministro de Obras Públicas y Transportes (report No. DM-2022-3121).

As established, these five reports were not disclosed to Parque Viva’s legal representative until 15 de julio de 2022, by official letter No. MS-DRRSCN-DARSA2-1724-2022—that is, seven days after the order completely closing the site had been issued. On that occasion, it was also decided to affirm the directive contained in that administrative act based on the finding that traffic and access problems at the site hinder emergency response (in the park and in neighboring communities), in accordance with Articles 21 and 50 of the Constitución Política, as well as other provisions of the Ley General de la Administración Pública and the Ley General de Salud. It must likewise be noted that all of this occurred after the representatives of Grupo Nación had already filed a motion for reconsideration with a subsidiary appeal (recurso de revocatoria con apelación en subsidio) against the health order (which they did the preceding day, that is, on 14 de julio de 2022).

Although official letter No. MS-DRRSCN-DARSA2-1724-2022 referred to the aforementioned technical assessments and even cited several provisions of our legal system on that occasion, this in no way cures the serious omissions and deficiencies affecting the health order as originally issued, which, as already stated, amount to a violation of the fundamental rights of defense and due process. Furthermore, for the reasons set forth below, the assessments cited by the respondents cannot serve as grounds for closing Parque Viva.

• 2)As has been established in this amparo proceeding (proceso de amparo), Parque Viva was not closed by the authorities of the Ministry of Health, through sanitary order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 dated 8 de julio de 2022, because of any problem directly related to its facilities. As established by report No. MS-DRRSCN-DARSA2-1641-2022 (prepared by the Área Rectora de Salud de Alajuela 2 following the inspection conducted at the site on 5 de julio de 2022 in response to the anonymous complaint filed), “the Parque Viva facilities meet appropriate internal physical, sanitary, and structural conditions,” and it was even stated that the four vehicle entry and exit points within the site itself are adequate and facilitate traffic flow. Indeed, the case file shows that the authorities of the Ministry of Health renewed Parque Viva’s sanitary operating permit (permiso sanitario de funcionamiento) No. MS-DRRSCN-DARSA2-RPSF-0177-2019, valid until febrero de 2024, and that, in diciembre de 2021 and enero de 2022, its occupancy capacities (aforos) were approved.

The only issue attributed to Parque Viva, on the basis of which its facilities were ordered closed for all types of events (also in accordance with the allegation made in the complaint of 5 de julio de 2022), is intrinsically, solely, and exclusively related to the condition of the access roads located outside the venue and the vehicular traffic problems that arise on them. In particular, it is alleged that the large number of vehicles traveling on these roads, mainly when mass events are held at Parque Viva, combined with their limited length and deplorable condition, prevents emergency services from traveling promptly in the event of an emergency at the site or in neighboring communities, which, in turn, has allegedly created a risk to human health and life. The authorities asked to issue a technical opinion on this matter agree on this point, as can readily be confirmed by reading their findings.

This is also precisely why, through the issuance of the sanitary order, Parque Viva’s representative was required to submit a remedial plan (plan remedial) “addressing a solution to the access problem.” Nevertheless, in the view of this Constitutional Court, closing this site solely on the basis of that circumstance and further requiring it to solve the problem was improper for the following specific reasons:

• a)First, it must be taken into account that the crux of the matter concerns a problem arising “outside” Parque Viva and, therefore, Parque Viva should not be held responsible for addressing it. The matter attributed to the roads leading to Parque Viva, located in La Guácima—namely, their vehicular capacity and condition or state, and the resulting measures and solutions that must be provided—is not the responsibility of neighboring commercial establishments. Although the latter could contribute to certain improvements (e.g., the construction of sidewalks or certain minor works to facilitate smooth access to the site), the absolute and complete responsibility for providing the roads with the required maintenance, widening them, and also resolving the vehicular congestion problem cannot fall upon them. It should be added that this problem persists not only in that area of Alajuela but also in many other parts of the country.

Indeed, the authorities of the Área Rectora de Salud de Alajuela 2 themselves acknowledge in report No. MS-DRRSCN-DARSA2-1641-2022 that the road problem does not even fall within the jurisdiction of the Ministry of Health. In this case, because the roads are cantonal roads—as has been established—their maintenance and improvement are the responsibility of the Municipalidad de Alajuela. However, there is no indication that, while processing the complaint under review, the authorities of the Ministry of Health even requested an opinion from that municipal corporation. To the contrary, the evidence submitted shows that opinions were requested from the MOPT authorities, who stated in report No. DVT-DGIT-2022-339 that “(…) 4. Parque Viva is (sic) located along a cantonal road known as Dirección02. Because it is a cantonal road, the Municipalidad de Alajuela is responsible for granting access permits (…)”.

Furthermore, it is important to note at this point that the Contraloría General de la República, in the recently issued document entitled Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela, dated 14 de julio de 2022, referred to that municipal corporation’s failure to resolve the area’s road problems. This explains the lack of attention given to date to the roads surrounding Parque Viva, which are precisely the subject of the dispute arising from the complaint filed on 5 de julio de 2022. Accordingly, this Chamber finds that the closure of Parque Viva originates from or is based on a problem that must, in fact, be addressed by the municipal authorities, because they are responsible for maintaining cantonal roads, specifically those in La Guácima de Alajuela, which they have plainly failed to do.

• b)Irrespective of the foregoing, there is no evidence in this matter that, before Parque Viva was granted the permits required to commence operations in 2015, it was required to submit a project to alleviate the road problems now attributed to it (e.g., construction of access points outside the venue or some other larger-scale project). At least, the respondent parties (partes recurridas) have not asserted as much before this Court. In any event, it is important to note that if such a project had been required at that time, but the requirement—and therefore its submission—was omitted, the appropriate course of action now would be to institute the corresponding proceeding before the competent courts. It would not be appropriate to issue a sanitary order and request a remedial plan on the terms set forth herein as a means of curing a possible omission. In any case, it is important to observe that the evidence submitted by the petitioners (recurrentes) supports the conclusion that the traffic impact study required and timely submitted by Parque Viva’s representatives was approved in septiembre de 2014 by the authorities of the Dirección General de Ingeniería de Tránsito del MOPT.

Specifically, the record shows that, in the aforementioned official letter No. DGIT-ED-5935-2014, those authorities stated that “(…) After reviewing the submitted traffic impact study (for the typical operating conditions of the Centro de Eventos La Guácima), this Unit states that, from a functional standpoint, it has no objection whatsoever to the project. This is because this Unit verified that, by implementing the mitigation measures proposed on the basis of the capacity analysis conducted, the levels of service (NDS) and queue lengths can be maintained at appropriate levels (…)”. Moreover, it should be noted that there would have been no reason to require a project such as the one currently being demanded of Parque Viva years ago, when the operating permit was being processed, because, as explained below, the traffic conditions in La Guácima de Alajuela were different at that time.

• c)Parque Viva is now being required, as a condition for allowing it to reopen, to submit and secure approval of, as well as implement or execute—according to the terms used by the Minister of Health in the report submitted to this Court—a plan to resolve an existing road problem in the La Guácima area that cannot be attributed solely to Parque Viva. It should be noted that the review of this matter has established that traffic congestion in that area is not exclusively related to the activities organized at Parque Viva (which, moreover, are generally scheduled on weekends and at night). To the contrary, it has been shown that, since approximately 2010, the community of La Guácima has undergone rapid urban development (more than 40 condominiums have been built), which obviously translates into a greater influx of vehicles on the roads in question. This situation has been confirmed by the Alcalde de Alajuela (who, as noted above, was not given an opportunity to participate in the processing and resolution of the complaint filed against Parque Viva), as well as by a municipal council member and community leader.

The aforementioned Mayor recently stated that the traffic congestion occurring in La Guácima de Alajuela is not caused solely by Parque Viva but is also due to the district’s substantial residential growth, specifically the new condominiums built in the area. In particular, that authority stated that “(…) We must look at the reality. The park was built almost ten years ago and, during these ten years, there has been a substantial change in the urban development of the district of La Guácima; that is, there are more people and more condominiums (…) Since 2014, 44 condominiums have been approved in the district, for example (…)”. He further clarified that, despite the efforts made, the municipality does not have sufficient resources to resolve the entire road problem in the area. For his part, Nombre19, a municipal council member and resident of La Guácima de Alajuela, stated during an expanded district council meeting held on 13 de julio of the current year that, from 2010 to the present, 48 urban development projects have been approved in La Guácima “(…) not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (…)”.

In his view, this reflects a traffic reality inconsistent with roads designed thirty years ago. Furthermore, this council member was emphatic in stating that “(…) There are traffic jams here every day, at seven in the Nombre142 and at five in the afternoon, with a concert or without a concert (…)”. Thus, it is evident that the authorities of the Ministry of Health have required Parque Viva to resolve a problem of enormous importance whose cause is not related or linked solely to the activities organized at that site, but also to the rapid urban and commercial development experienced in the area during recent years; which is the responsibility of public authorities to address; and which, moreover, is exceedingly difficult to remedy under the circumstances described above. It is therefore evident that, without justification and arbitrarily, only one establishment is being targeted, even though the problem is broader in scope, involves other public and private actors, and has multiple causes beyond the events organized at Parque Viva.

Furthermore, it is important to note that, as reflected in the report submitted by the head of the Ministry of Health, the Ministry seeks not only the submission of a remedial plan by Parque Viva but also its implementation or execution. This undoubtedly makes compliance with that requirement even more complicated, slow, and burdensome as a means of promptly authorizing the site’s reopening. Under these circumstances, we are speaking of a measure that could remain in effect for years, almost indefinitely.

• d)It is extremely important to bear in mind that, in this matter, it has been shown that, precisely in order to assist or contribute to solving the road-traffic problems occurring in the vicinity of Parque Viva (which are not denied by the venue’s representatives and are even demonstrated by the news article published for that purpose on 27 de abril de 2021 in the entertainment section of the newspaper La Nación and by the filing initiating this amparo proceeding (amparo) itself), a road project was pursued (approximately since 2019 and by Grupo Nación) to build, in the coming years, a direct four-lane access road connecting Ruta No. 27 with that establishment (or with the future project called Ciudad Viva). According to the petitioners, the costs of this project would be borne by Grupo Nación. Moreover, as has been conclusively demonstrated, during 2021 and at the beginning of this year 2022, the project received approval (visto bueno) from several government bodies, namely the Departamento de Estudios y Diseños del Ministerio de Obras Públicas y Transportes (official letter No. DVT-DGIT-ED-2021-1845), the Consejo Nacional de Vialidad (official letters No. GCTT 34-2021-0340 and No. CCAR-2021-373), the Concejo Nacional de Concesiones (official letter No. CNC-APM-SJC-0608-2021), and the Departamento de Estudios y Diseños del Ministerio de Obras Públicas y Transportes (official letter No. DVT-DGIT-ED-2022-0088).

However, as alleged, to date that project has not advanced through the administrative process (sede administrativa), and therefore has not yet been approved. It should also be noted that Nombre138 Nombre01 recently spoke openly and publicly against it at a press conference held on 13 de julio de 2022. Thus, this Chamber observes that Parque Viva and its representatives did take the necessary precautions (even many months before the sanitary order (orden sanitaria) was issued) to resolve the vehicular-traffic situation that had arisen in its vicinity, the cause of which, it bears repeating, cannot be attributed entirely to this venue and the activities conducted there and which, moreover, the aforementioned municipality is responsible for addressing. Accordingly, this Court does not find it plausible that, at this time, Parque Viva should be required to submit, obtain approval for, and implement (in the terms used by the Minister of Health in this amparo proceeding) a remedial plan (plan remedial) intended to resolve the aforementioned problem when, as stated, a project conceived and designed to accomplish that purpose had long before been submitted, on Nombre03’s own initiative, to the corresponding government bodies (and, as stated, was already progressing and had received some approvals from the competent bodies).

Attention should be drawn here to a singular situation—which undoubtedly likewise amounts to arbitrariness—namely, that on the one hand, the Ministerio de Salud has required Parque Viva (as a condition for allowing it to operate again) to submit and implement a remedial plan to resolve the road-congestion problems to which we have referred, while on the other hand, curiously and at precisely the same time, the head of government publicly discredited the project that had been pursued for years specifically to address what is now being required. This being so, it is clear that the government placed Parque Viva in a difficult situation, almost without a way out, by closing off and discrediting one of the most viable avenues available to it for meeting what is now required. This jurisdiction finds it noteworthy that, in the report submitted, the head of government maintains that it is untrue that the venue was permanently closed; nevertheless, given the circumstances described above, it is clear that this would be the effect of the decision now being challenged.

It should now be clarified that this Constitutional Court is not saying that the specific project in question is the appropriate one or that it must necessarily be approved; it is important, however, to emphasize that it is a proposal of interest intended to address the problem in question which, moreover, as established, has recently passed through several stages before the corresponding government bodies and which, at least formally, constitutes the remedial plan required by the respondent Administration, but which, it bears repeating, has not been analyzed in order either to approve or deny it in accordance with the technical considerations required and warranted in this type of proceeding. Note that, apart from making reopening contingent upon a condition that, in essence, seeks to transfer to the petitioners the entire responsibility for resolving a (cantonal) road-infrastructure problem with multiple causes and aggravating factors, the technical option had already been proposed by the affected company and was “rejected” without substantial technical or legal grounds, despite having the approval and consent of several administrative bodies with technical jurisdiction.

• e)In the report submitted to this constitutional body, Nombre138 Nombre01 argues that public authorities have required other commercial groups to construct access roads to large shopping centers when it is projected that the commencement of operations at those facilities will increase vehicular traffic in the area where they were built, as in the cases of EPA in Desamparados and City Mall in Alajuela, which, according to his statement, made substantial investments to comply with requirements governing automobile entry and exit. Nevertheless, it is important to clarify that this argument cannot serve as grounds for requiring Parque Viva to implement the remedial plan under examination, given that the latter venue is in clearly different circumstances. Note that, as follows from the head of government’s report, the requirement to build those road accesses was imposed when those establishments (EPA and City Mall) had not yet begun operating; rather, they were requested or required as a prerequisite for permitting and authorizing their operation.

This is contrary to what is currently occurring with Parque Viva, a venue that has been operating for more than seven years, with no indication that, before it began doing so, it was required to construct this type of access road—outside the venue—or, as already stated, to submit a larger-scale plan that would resolve the road-related problems now attributed to it. It should also be emphasized that requesting the construction of entry accesses (which, although it entails a cost, does not amount to a large-scale project) is different from requiring the resolution of the road-congestion problems occurring in La Guácima de Alajuela. What Parque Viva is now being ordered to do is not only unsupported and extremely difficult to accomplish (as explained above), but was also imposed upon it retroactively and arbitrarily.

Along the same lines, it is important to note that the closure of Parque Viva likewise cannot be compared with the recent closures of other establishments that accommodate or bring together large numbers of attendees (e.g., the Gimnasio Nacional or the Estadio Ricardo Saprissa). Although this Chamber fully understands the oversight that the Ministerio de Salud and other institutions competent in the matter must and do exercise over venues intended for activities that gather substantial numbers of people, the fact remains that those cases present particular circumstances of intervention and response that clearly distinguish them from the case now under consideration. This is because those latter closures—whether total or partial—were based on alleged irregularities or deficiencies found in the facilities or properties themselves, that is, within each of those venues, for reasons relating, among other things, to electrical systems, emergency exits, lighting systems, etc., none of which are mentioned at any point in the Parque Viva case.

• 3)In the report submitted to this Court, Nombre138 Nombre01 also refers to two reports to justify the closure of Parque Viva; it is unknown when, how, why, and by whom those reports were requested, or how they came into his possession for submission in this proceeding. In particular, he refers to official letter No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of 10 de julio de 2022 (in which the Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela mentions the problems encountered in responding to police incidents in the area outside Parque Viva when activities are held at that establishment) and official letter No. PE-243-07-2022 of 29 de julio de 2022 (in which the Presidenta Ejecutiva del INVU describes a series of alleged irregularities found in the municipal file for the so-called Proyecto Viva regarding the granting of operating permits (permisos de funcionamiento), relating, for example, to land uses (usos de suelo), environmental viability (viabilidad ambiental), the failure to request a specific traffic-impact study (estudio de impacto vial), etc.).

Nevertheless, it is important to point out that, in this Chamber’s opinion, the contents of those official letters cannot now be presented as a means of diverting attention from what actually occurred in this case and thereby attempting to justify the onerous measure taken against Parque Viva. First, this is because those official letters did not serve as grounds for issuing sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated 8 de julio de 2022 (electronically signed at 12:37:21 hrs.). Indeed, the record shows that the INVU report was not issued until 29 de julio de 2022, after official letter No. MS-DRRSCN-DARSA2-1724-2022, which confirmed the sanitary order, had been communicated to the affected party. Nor is there any indication that these documents were served upon or brought to the attention of Parque Viva’s representative as a means of allowing it to exercise the fundamental right to a defense (derecho fundamental a la defensa), thereby also safeguarding due process (debido proceso).

From that perspective, it is clear to this Chamber that what Nombre138 Nombre01 now seeks is to establish, at least through the official letter signed by the Presidenta Ejecutiva del INVU, Parque Viva’s alleged failure to comply with various types of requirements when the respective operating permits were granted, which, it should be emphasized, occurred approximately seven years ago. Nevertheless, as explained above, if that were so, the proper course would be to resort to ordinary legal channels (vías de legalidad ordinarias) and institute the appropriate proceedings, particularly because, as was also shown, the Municipalidad de Alajuela has recently and publicly refuted the matters stated in that report. Note that every action must comply with the principle of legality (principio de legalidad), which is a requirement of the Constitutional Rule-of-Law State model (Estado Constitucional de Derecho) that every public official must respect, regardless of the office held.

• 4)Another noteworthy aspect is that the closure of Parque Viva was ordered for every type of event, whether large-scale or not, which, in this Court’s view, likewise lacks any basis and is therefore improper. A review of the anonymous complaint filed on 5 de julio de 2022 shows that the complainant referred to problems arising at the venue when large-scale activities are held (or activities involving large numbers, as that word is defined by the Diccionario de la Real Academia Española) and even emphasized that this venue “does not meet the conditions required to host large-scale events.” Along the same lines, it is established that, by official letter No. MS-DM-5754-2022, the Ministra de Salud asked MOPT to provide a technical opinion concerning the large-scale events held at Parque Viva, and that this was precisely the opinion rendered through official letter No. DVT-DGIT-2022-339 (which, it should also be noted, purportedly served as the basis for issuing the health order (orden sanitaria) under review).

It has likewise been shown that the Comité Asesor Técnico de Concentraciones Masivas, at the meeting held on 7 de julio de 2022 (which also purportedly served as grounds for closing the park), clearly and expressly recommended issuing a health order closing the venue to large-scale events. Following that action, the aforementioned order was issued, with no evidence that, in the interim, any other action had recommended—likewise on the basis of technical opinions—the complete closure of the venue to every type of activity, including those that do not entail a large influx of attendees. Furthermore, it should be noted that the technical opinions issued after the health order by the Cuerpo de Bomberos, the Cruz Roja, MOPT, and the Sistema de Emergencias 9-1-1 (which were referenced above and requested by the respondent Ministra “in connection with the holding of large-scale events”) referred only to that specific type of event (large-scale events) and did not expressly recommend closing the entire venue.

This is also confirmed by official letter No. MS-DRRSCN-DARSA2-1724-2022, through which the Área Rectora de Salud de Alajuela 2 upheld the previously issued health order and stated that those reports indicated the existence of a problem in responding to emergencies “(…) both in the surrounding communities and for attendees themselves at the large-scale gatherings held at Parque Viva (…).” Indeed, it should be noted that the Ministro de Transportes himself, in official letter No. DM-2022-3121 issued on 11 de julio del año en curso, recommended holding large-scale gatherings of 2400 people per event. Thus, no evidence justifies the temporary suspension of the sanitary operating permit (permiso sanitario de funcionamiento) for all activities. Still less was any attempt made to justify or explain this when health order No. MS-DRRSCN-DARSA2-OS-0368-2022 de 8 de julio de 2022 (electronically signed at 12:37:21 hrs.) or the aforementioned official letter No. MS-DRRSCN-DARSA2-1724-2022 de fecha 15 de julio de 2022 was issued.

The problem raised in connection with Parque Viva—as demonstrated in this amparo proceeding (proceso de amparo)—is closely related to large numbers of people and vehicles entering the site; at no point has reference been made to smaller-scale activities. Accordingly, the measure completely prevents Grupo Nación from earning any type of revenue, even though, as stated, there was likewise no basis whatsoever supporting the decision not to permit large-scale events.

• 5)Additionally, this Constitutional Court wishes to draw attention to certain matters of interest identified during its examination of this case. One of these is the speed with which the Ministerio de Salud authorities acted on the “anonymous” complaint filed on 5 de julio de 2022, which, as established, led to the issuance of the health order and the closure of Parque Viva. It should be noted that the case record shows that this complaint, submitted to the Office of the Ministra de Salud in San José at an unspecified time on 5 de julio de 2022, was forwarded by that authority, on jurisdictional grounds, to the Directora de la Dirección Regional de Rectoría de la Salud Central Norte of that same Ministry (an office located in Heredia), through official letter No. MS-DM-5756-2022, digitally signed on 5 de julio de 2022 at 12:38:24 hrs. It is also established that the same complaint was physically received that same day, at 12:41 hrs., by the authorities of the Área Rectora de Salud de Alajuela 2, who only one hour and nine minutes later, that is, at 13:50 hrs., were conducting an inspection at Parque Viva.

That inspection, in turn, resulted in the preparation of report No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, which, based on the recorded findings, recommended referring the complaint to the Ministerio de Obras Públicas y Transportes; an entity which, however, had already been asked—before that inspection was conducted—to provide its opinion by the respondent Ministra, through official letter No. MS-DM-5754-2022, digitally signed at 12:24:14 hrs. de 5 de julio de 2022. Furthermore, the evidence entered into the record shows that, on that same 5 de julio del año en curso, the MOPT authorities had already issued the above-requested opinion (specifically through official letter No. DVT-DGIT-2022-DVT-DGIT-2022-334), which, however, was rescinded the following day and replaced by the opinion contained in official letter No. DVT-DGIT-2022-339 de fecha 6 de julio de 2022. It must also be emphasized that, by 7 de julio de 2022, the Comité Asesor Técnico de Concentraciones Masivas was already meeting.

It was composed of the Ministra de Salud as coordinator, the Ministro de Obras Públicas y Transportes, officials from the Cruz Roja Costarricense, the Dirección de la Policía de Tránsito, the Comisión Nacional de Emergencias, the Cuerpo de Bomberos, the Sistema de Emergencias 9-1-1, and Gestión de Riesgo del Ministerio de Salud, who, that same day—without, as stated, the benefit of particularly conclusive opinions—proposed issuing a health order closing Parque Viva to large-scale events. As stated, this latter measure was ultimately served on the legal representative of that establishment on 8 de julio del año en curso. In view of the foregoing, it must be stated that the Public Administration (Administración Pública)—as this Constitutional Court has repeatedly held in extensive case law—is indeed required to act in accordance with the principles of effectiveness and efficiency and, moreover, to process and decide complaints submitted by the public promptly and within reasonable time limits, pursuant to the provisions of constitutional Article 41.

Nevertheless, it is important to observe that, even in urgent situations, the Public Administration has not been seen to act with the speed displayed in this particular case. This unquestionably sets an important precedent; therefore, it is to be expected that, a posteriori, whenever any complaint is submitted by the public, the Ministerio de Salud and all other competent public institutions will act with the same promptness and diligence, thus providing a swift response to complainants and interested parties.

On the other hand, the news report published on 10 de julio de 2022 in Diario La Nación (days after Parque Viva was closed) must not be overlooked. In it, a resident of La Guácima stated that an official from a public institution had contacted her and provided her with a template letter addressed to the Ministra de Salud so that she could express support for the closure of the aforementioned establishment, which she merely had to sign. This Chamber finds it noteworthy that, when interviewed by the journalist, that resident exclaimed that, from her perspective, “the Government wants to ‘clean up the mess’ they ‘made’ by closing the event venue.” Additionally, as a noteworthy fact, it should be emphasized that Nombre138 Nombre01, in the report submitted to this Court, confidently asserted that the “anonymous” complaint filed on 5 de julio de 2022 against Parque Viva had been submitted by residents of La Guácima de Alajuela, when, precisely because it was anonymous, it need not necessarily have been submitted by people from that location. It should be noted that the complaint could have been filed, for example, by an attendee of the event venue who resides elsewhere in the country and was dissatisfied with the operation of the site, or by any other person.

It should also be emphasized that, strictly speaking, the matters identified above do not amount to a violation of any fundamental right. Nevertheless, this jurisdiction deemed it important to mention them so that they may be evaluated and analyzed together with the remaining considerations set forth in this judgment.

In light of the foregoing, this Chamber considers it appropriate to analyze the issue raised in this amparo action (amparo) in accordance with the principles of reasonableness and proportionality. In essence, it must determine whether the aforementioned action—namely, the issuance of the health order closing Parque Viva to every type of activity—passes the so-called reasonableness and proportionality test (test de razonabilidad y proporcionalidad), which, pursuant to, among other decisions, Judgment No. 1276-2013 de las 14:50 hrs. de 29 de enero de 2013, entails an analysis of legitimacy, suitability, necessity, and proportionality in the strict sense. That decision explained the scope of this examination as follows: “(…) Legitimacy means that the objective sought through the challenged act or provision must not, at a minimum, be legally prohibited; suitability means that the challenged state measure must be capable of effectively achieving the intended objective; necessity means that, among several measures equally capable of achieving that objective, the competent authority must choose the one that affects the person’s legal sphere as little as possible; and proportionality in the strict sense provides that, even if a measure is suitable and necessary, it will be unreasonable (sic) if it harms the essential content of another fundamental right by depriving that right of its substance (…)” (to similar effect, see Decisions Nos. 3951-2012 de las 16:31 hrs. de 21 de marzo de 2012 and 27601-2021 de las 12:15 hrs. de 8 de diciembre de 2021).

For its part, in Judgment No. 3564-2015 de las 09:20 hrs. de 13 de marzo de 2015, this Court clarified on this point that “(…) This protocol is applied in stages, such that if the examination at the first stage is unsatisfactory, it is unnecessary to proceed with the analysis of the remaining aspects, although in some cases they may be examined in greater depth to lend greater force to the ruling (…).” In applying that test and in accordance with the foregoing, it is clear that the health measure under review is not lawful because, although protection of the life and physical integrity of persons was invoked as grounds for its issuance, the fact remains that, as already explained, it was issued hastily, in an openly arbitrary manner, and without any reliable basis whatsoever, thereby contravening the legal system. The challenged conduct refers to factual and legal premises that, on the one hand, are not exclusively attributable to Parque Viva, as the health order purports to portray and establish, and that, moreover, were not duly proven or substantiated when that formal act was adopted.

In other words, the basis on which that decision purports to rely stems from a conclusion or value judgment lacking the technical evidentiary support that is essential and indispensable to sustain that outcome. There is, therefore, an absence of the grounds element of the administrative act (elemento motivo del acto), as required by canon 133 of the LGAP, and consequently the content adopted—which imposes an onerous, disproportionate, and unreasonable consequence—is unlawful because it establishes a legal consequence that finds no support in the legal system. In short, on this point, the challenged act contravenes the necessary relationship between the objective substantive elements of grounds and content (motivo-contenido), incorporating an incurable deficiency that cannot in any way be deemed remedied by the subsequent issuance of opinions by other administrative bodies seeking to establish matters that should have been determined as the lawful basis for the challenged health order.

Consequently, the foregoing state of affairs also prevents it from being considered a suitable measure. Likewise, this measure does not satisfy the necessity criterion, since there are less harmful or less drastic alternatives for achieving the stated purpose—the protection of the life and health of persons—that could be adopted in the exercise of the powers vested in the Ministry of Health to protect health and physical integrity without impairing the exercise of other fundamental rights. Nevertheless, the respondent party, namely the Ministry of Health, chose to impose—without any valid justification—the option most harmful to the Parque Viva establishment, since it categorically bars it from holding any type of event indefinitely until, as explained, a remedial plan is submitted and implemented for a problem that is not caused solely by the activities organized there and that, because it involves cantonal roads, falls to the municipality of Alajuela to address.

Moreover, it should be emphasized that the measure adopted by the Administration likewise fails the proportionality test in the strict sense (proporcionalidad en sentido estricto), because it impairs the essential content of other fundamental rights, thereby stripping it of its protective content. In this regard, it has already been demonstrated that the measure under review is arbitrary, lacks reasons or support—because it refers to technical criteria that this Court has not accepted—and therefore flagrantly violates the fundamental rights to a defense and due process.

Accordingly, in the opinion of this Constitutional Court, the respondents should have conducted a proper balancing (ponderación) and adopted the measure least burdensome to fundamental rights, fostering a balance among them and limiting their impairment to a minimum. It should be noted that although this constitutional body has repeatedly held that the life, health, and physical integrity of persons are legal interests of the utmost importance and therefore clearly deserve protection, this does not mean that, in the Nombre141 of those interests, other fundamental rights may be indiscriminately, abruptly, and arbitrarily overridden through a clear misuse of power (desviación de poder), which in turn constitutes a violation of the constitutional principle of legal certainty (seguridad jurídica).

Measures to safeguard such essential interests must always and necessarily be taken, but under no circumstances may they be issued lightly, hastily, precipitously, without adequate grounds, and in serious violation of other fundamental rights. Still less may measures as drastic as those analyzed in this matter be ordered when other, less harmful options can be adopted to safeguard the life and health of persons.

Certainly, improvements must be made to the cantonal road network near Parque Viva to allow emergency vehicles to travel without obstruction; however, as has also been stated, this problem cannot be attributed or ascribed entirely to Parque Viva, much less can responsibility for eliminating it be shifted to the representatives of this venue through the imposition of a measure as burdensome and extreme as the complete closure of its facilities.

For the reasons described above, this Chamber deems it appropriate to grant this claim in the petition (extremo del recurso), with the consequences to be set forth in the operative portion of this judgment (parte dispositiva).

C. CLOSURE OF PARQUE VIVA AND INDIRECT VIOLATION OF FREEDOM OF EXPRESSION. The Director of the newspaper La Nación, as well as the other petitioners, also contend before this Court that the order closing Parque Viva—issued through health order No. MS-DRRSCN-DARSA2-OS-0368-2022—amounts to an indirect violation of freedom of expression. In that regard, they first explain that Parque Viva is part of Nombre03 S.A. (of which that newspaper is also a part) and was created as a supplementary source of revenue less dependent on the sale of advertising in the news outlet. Specifically, they state that this event center began operating to diversify the company’s sources of revenue and offset the loss of income or profits experienced by news media worldwide due to the migration of advertising to internet giants. The claimants explain that the aforementioned newspaper published a series of reports of clear public interest concerning the then-candidate for the Presidency of the Republic, Nombre15, relating to sanctions imposed on him for sexual harassment at the Banco Mundial and to parallel financing structures for his party’s political campaign, among other matters.

They assert that these were serious, well-documented, and relevant journalistic reports, such that failure to publish them would have directly impaired citizens’ right to be informed about matters of public interest, as well as the principle of the informed voter. They also state that, because of the foregoing, the president publicly threatened to destroy “the corrupt structures of La Nación and Canal 7” and has launched verbal attacks against the press and journalists, whom he has called “scoundrels.” They then allege that the president began to carry out the threat against them through the issuance, on July 8, 2022, of the aforementioned arbitrary health order No. MS-DRRSCN-DARSA2-OS-0368-2022, which ordered the closure of Parque Viva. They therefore maintain that this venue—created to diversify the company’s sources of revenue—was one of the structures supporting Grupo Nación’s independent journalism that was affected as a result of the threat made by the current president.

They state that the measures adopted against Parque Viva do not seek to serve the public interest, but rather spurious interests consisting of intimidating a news outlet so that it will not freely exercise its right to inform. They note that these acts not only economically affect the company that owns Parque Viva, but also the news outlet for which they work, thereby impairing their right to inform. They assert that this is the true purpose of the measures adopted. They state that the pressure exerted on the company’s finances jeopardizes future journalistic activity and encourages understandings that compromise it. They allege that the foregoing has reflected a clear intent to restrict freedom of expression through indirect means. They add that on July 6, 2022, days before that order was issued, the president publicly cast doubt on Grupo Nación’s financial health by raising questions concerning the bonds issued by that company and acquired by the CCSS and its pension-fund operator.

They further assert that, on that occasion, he insinuated that the security for the debt would be weakened by the future transfer of some of the company’s land to a trust for the purpose of undertaking a promising real-estate development. They mention that the actions of Nombre138 Nombre51 on that occasion had no purpose other than to harm Grupo Nación by casting doubt on its finances in order to curtail freedom of expression. At the same time, they maintain that the president has made other public statements against Nombre03—with the aim of continuing to persecute and intimidate it—as occurred on July 13, 2022, when he expressed his opposition to the project to build a four-lane access road to Dirección11. In addition, they state that on July 20 of the current year, Nombre138 cited, among the reasons for canceling the electric-train plan, the existence of a branch line passing through Parque Viva.

They argue that the threat to destroy the companies in retaliation for the editorial positions of the media outlets they own and the actions of their news directors is more than evident. They state that the freedom of expression established in constitutional article 29 has been violated and that, in turn, an indirect attack against it has occurred, which is prohibited under article 13.3 of the American Convention on Human Rights. They refer to the rulings of the Inter-American Court of Human Rights, among others, in Nombre65 v. Peru and Nombre136 v. Venezuela, as well as Advisory Opinion No. OC-5/85. Likewise, in a subsequent brief filed with this Chamber, the Director of the newspaper La Nación reiterated that they are a group of professionals whose freedom of expression is being restricted through arbitrary actions against the structures that support the free practice of journalism. He clarifies that they have not referred to a direct attack, but rather to an indirect one, and that, contrary to the president’s statement, payment of their salaries does not depend on Parque Viva.

Nevertheless, he asserts that the closure of Parque Viva would put an end to the troublesome journalism they practice “and that prompted the threat made during the campaign.” In view of the foregoing, they request that Nombre138 Nombre01 be ordered to refrain from carrying out acts intended to impair freedom of expression.

For his part, Nombre138 Nombre01, in response to the allegations, states that the situations referred to by the petitioners have no connection whatsoever with curtailing the media outlet’s freedom of the press (libertad de prensa). He indicates that, instead, the claimants, shielding themselves behind that misguided argument, demand without reservation that the State allow them to operate however they wish, even when doing so is contrary to the law and detrimental to the public welfare. He asserts that Grupo Nación cannot be required, like any other Costa Rican business, to comply with the parameters of the law because, in its view, this immediately becomes an attack on freedom of the press. He maintains that Grupo Nación cannot claim that it pins its economic hopes on the revenue that Parque Viva’s business activity may generate so that it can pay its employees and that temporarily closing that venue to mass events because it fails to meet minimum health standards constitutes a direct attack on freedom of the press.

He states that this merely demonstrates that La Nación’s financial health is not what they portray it to be and that they depend on this venue to survive financially. He indicates that protecting the lives of hundreds of families living near Parque Viva has no connection whatsoever with attacking, restricting, or censoring Grupo Nación’s freedom of the press. He notes that, after analyzing the matter, the Colegio de Periodistas de Costa Rica concluded that freedom of the press in our country is in good health and that this right is not being infringed in any way. He adds that the statements made regarding Grupo Nación’s financial capacity and the statements made in that regard by CCSS officials are valid and justified. He argues that, at the close of the first quarter of 2022, Grupo Nación was reporting a net loss of 350 million colones, almost 35% greater than the loss reported in March 2021.

On the other hand, he states that it is concerning that Grupo Nación’s largest asset—that is, the property in Llorente de Tibás—is being transferred to a trust (fideicomiso), together with other properties that this group has been acquiring, even though it has been reporting losses for several years. He maintains that Grupo Nación, like any other debt issuer (emisor de deuda) participating in the domestic securities market (mercado nacional de valores), is required to provide truthful information supporting its financial health and may not hide behind its purported primary activity as a media outlet to allege attacks on freedom of the press when it is required to comply with the law. He also indicates that the petitioners’ need to perceive persecution while defending Grupo Nación’s interests goes so far as to claim that the cancellation of the electric train project promoted by the previous administration arose from the fact that a branch of the route would have passed through Parque Viva.

That assertion, however, is false, and he maintains that the decision not to proceed with that project was made for the benefit of the public, because a better-conceived and better-designed project would provide greater benefits for everyone. He notes that the petitioners fail to mention that, according to a report published by the media outlet CRhoy.com, the current administration and Grupo Nación signed an agreement that would increase the cost of the electric train by almost 150 billion colones so that the railway line would pass near Parque Viva. He states that, as a Costa Rican and a public official, he has the obligation and the right to speak out forcefully regarding situations that endanger the public health of the people. He indicates that he has a constitutional right to express his thoughts freely and that he will do so in the strongest terms when the rights of Costa Rican families are at stake.

He states that the Sala Constitucional recently ruled on the right of public servants to express their opinions in Judgment No. 9855-2022. He likewise refers to the ruling of the Corte Interamericana de Derechos Humanos in Nombre136 v. Venezuela, which stated that, although the remarks made contained strong and critical language that could even be regarded as offensive, they constituted legitimate expressions of thought. He adds that it is inevitable to question whether Grupo Nación is acting in accordance with the ninth principle of the Declaración de Chapultepec and whether, once all the criteria of the specialized entities have been analyzed, its credibility and commitment to the truth are not in doubt. He therefore asserts that no form of censorship, whether direct or indirect, is being exercised against Grupo Nación. He states that the media outlet continues to operate normally, informing the Costa Rican people in accordance with its editorial policy, and that this guarantee will never be violated.

In view of the foregoing, we therefore have the grievance (agravio) raised by the petitioners, to the effect that the closure of Parque Viva—together with other statements made by Nombre138 Nombre01—represented the materialization of the threats issued by that authority with the aim of destroying Grupo Nación S.A. (of which Diario La Nación is, in turn, a part), thereby indirectly violating freedom of expression (libertad de expresión), given that the establishment was created to diversify the company’s sources of revenue and offset the decline in such revenue experienced in recent years. On the other hand, we have the account given by the President of the Republic, who maintains that freedom of expression has not been violated, that the media outlet continues to operate normally to date, and that the issuance of the health order (orden sanitaria) in question and the closure of Parque Viva seek to protect the lives of hundreds of families living near that venue. In addition, Mr. Nombre138 argues that he has every right to express freely what he thinks, particularly when it involves protecting the rights of Costa Rican families.

It should be recalled that the preceding section of this judgment stated that the closure of Parque Viva carried out by the Ministerio de Salud on 8 de julio del presente año through health order No. MS-DRRSCN-DARSA2-OS-0368-2022 (issued on 8 de julio de 2022 and electronically signed at 12:37:21 hrs.) was, in turn, effected through an administrative act (acto administrativo) that this Court considered arbitrary, unsupported, and also disproportionate (it is clarified that this jurisdiction reached that conclusion independently of the matters addressed in this new section). This Chamber now considers that, to determine whether that action likewise entailed an indirect restriction or limitation—covert censorship (censura velada)—of freedom of expression, it must be examined concurrently with the other events that occurred, including the circumstances and context in which they arose. Accordingly, some of the principal events surrounding the specific issuance of that health order will first be reviewed.

Thus, it is important to note, first, that in this matter it has been established that Diario La Nación is part of Nombre03 S.A.; the latter corporation, in turn, acquired Parque Viva several years ago as a means, in this particular case, of diversifying the company’s sources of revenue and thereby offsetting the loss of profits caused by the migration of advertising to internet sites.

The case record (autos) also shows that, in the context of the electoral contest—specifically, the voting held in our country to elect Nombre138 Nombre01 in this year 2022—Diario La Nación published a series of reports against the then-candidate, now Nombre138 Nombre01, Nombre15. In particular, it was established that, on 30 de agosto de 2021, that newspaper published a report concerning the sexual-harassment sanctions imposed on the aforementioned candidate while he was an official at the Banco Mundial. Subsequently, the newspaper published additional reports on this same subject on 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, and 1° y 25 de abril de 2022. The record likewise shows that a report criticizing Nombre58’s proposal to govern through referendums was published by that media outlet on 13 de febrero de 2022. For their part, reports concerning the parallel financing structures of the current President’s political campaign were published by Diario Nación, among other dates, on 5 de marzo y 29 de marzo de 2022.

It has also been established that, in parallel or concurrently with the foregoing news reports, Nombre58, while a presidential candidate, made a series of statements directly against Diario La Nación. Thus, the record shows that, on 29 de enero de 2022, Nombre58 publicly stated the following before a group of supporters:

“(…) We are a tsunami, and yes, we are going to cause destruction. We are going to destroy the corrupt structures of La Nación and Canal 7. Listen to me, Nombre16; listen to me, the other (…) Nombre17; listen to me, Nombre18. Here we are. Keep making us invisible when it comes to what is new and good, and keep slanderously accusing us when it comes to what is bad, because you no longer install presidents in Costa Rica (…)”. (Emphasis not in the original).

It was likewise established that, on 6 de febrero de 2022, the then-presidential candidate, when casting his vote, expressly stated the following to the media outlet AM Prensa:

“(…) I did not say that the press was villainous. In Costa Rica there is a Nombre148 press (…) because there is a press that lies (…) that serves powerful groups, which have devoted themselves to removing and installing presidents, and that is over for them (…)”. (Emphasis not in the original).

Furthermore, in response to a question posed in that regard by journalist Nombre51 on that latter occasion, he specifically clarified that he was referring to “(…) La Nación, Canal 7, CRhoy (…)” and maintained that he was saying so “(…) openly and clearly (…)”. (Emphasis not in the original).

Along the same lines—although without naming specific media outlets—it was established that, on 30 de enero of that same year, at the campaign’s closing event for the first round of the election, presidential candidate Nombre51 publicly stated the following:

“(…) we went from being the most equal society in América Latina to one of the most unequal in the world (…) to make (…) those who control those media outlets of disinformation, defamation, and lies even richer (…) we said it; we said that the house had to be cleaned, and they became frightened because, at first, who cared about Nombre51? no one (…) on the very day Nombre57 announced his candidacy, they began spewing poison, hatred, lies, and slander; that was when (…) they began to tremble, and that is why they do it (…) because of this tsunami that will sweep them away like household garbage (…) ink and not blood, but it will be no less historically significant (…) because here we are telling the same people as always: the party is over for you; the party is over for you (…)”. (Emphasis not in the original).

In addition, it is important to bear in mind that, in this matter, it has also been demonstrated that the current Nombre138 Nombre01 has referred to the press, in general terms, as “the Nombre148 and bought-off press.” This was evident, for example, in the news report published by the Columbia media outlet on its digital platform on February 7, 2022; on that occasion, the President further stated that two or three media outlets in this country would be severely affected under a government led by him. That news report recorded the following express statements made by Nombre51:

“(…) In Costa Rica, hear me loud and clear, there is bought-and-paid-for Nombre148 press; not all the press is like that, there are honest people here in this country—the vast majority—but there are people who are not honest, and the same applies to the press (…) in Costa Rica (…) there are two or three very important media outlets serving interests that would be severely affected under a government of Nombre51 and that have done everything possible to subject us to a political firing squad and lynching (…)”. (Emphasis not in the original).

Likewise, the current Nombre138 Nombre01 has publicly compared this country’s press to rats and other species of wildlife. In this regard, the record shows that, on August 3, 2022, during a press conference, that official addressed the Minister of Health and stated:

“(…) I can see that the media have upset you, and I understand, but I am going to be very frank with you: those media outlets and others of their species—because they are a species (…) people talk about the press, but that is like talking about wildlife: there are rhinoceroses, raccoons, rats, birds (…) I do not believe the species of press you are talking about (…) do not let them bother you; let them keep sinking (…)”. (Emphasis not in the original).

In addition to the foregoing, it is appropriate to bear in mind a series of events that have occurred in connection with this same matter. In this regard, it should be noted that, on July 6, 2022, during a press conference, a journalist from the El Guardián CR media outlet asked the now Nombre138 Nombre01 for his views on the Caja Costarricense de Seguro Social and the request made to Nombre02 concerning the bonds issued by Grupo Nación. The record shows that the President stated that there was indeed a very serious issue involving bonds issued by La Nación that previous administrations had purchased. He also stated that he was concerned about that media outlet’s ability to pay (which, in his view, “appears very, very limited”), in light of certain accounting measures and transfers of assets that reduce the likelihood that the people of Costa Rica will be able to recover those substantial resources. After Nombre59, Nombre138 Ejecutivo of the CCSS, expressed his views on the matter, the Nombre138 Nombre01 expressly stated the following:

“(…) La Nación’s profitability is in free fall, and that means it is incurring constant, constant, constant losses. And so one wonders, if that pattern of losses continues—I do not know, perhaps they have a magic wand and will manage to improve their cash flow (…) what happens if La Nación’s cash flow is strangled and the property is no longer there because it is somewhere else? That is the question, and I believe don Nombre149 explained it very well in technical terms, but well, he has an obligation to do that. And I asked him to do so, and in fact he was already doing it when I called him to ask; he told me, no, we are already doing it and the inquiry is under way (…)”.

It has also been demonstrated that, as a result of what occurred at the press conference on July 6 of the current year, on July 7, 2022, the politics section of Diario La Nación published an article explaining, among other matters, why the arguments advanced by the President regarding Nombre03’s financial capacity were inaccurate. In addition, the record shows that the same article stated that the Executive Director of Grupo Nación said that “(…) Parque Viva resumed operations beginning in March 2022, after going two years without events because of the coronavirus pandemic. He also recalled that the public-health crisis caused widespread disruption around the world. Nevertheless, he emphasized, the company managed to generate cash flow (…)”. (Emphasis not in the original).

At this point, it should be recalled that, on the following day, namely, July 8, 2022, the Ministry of Health issued the sanitary order (orden sanitaria) directing that Parque Viva be closed to all types of activities.

In addition to the foregoing, it bears reiterating that, in this matter, it has been demonstrated that, on July 13, 2022, the Nombre138 Nombre01 spoke at a press conference against the road project proposed by Grupo Nación to address the traffic congestion in the La Guácima area, where Parque Viva is located. The record shows that, on that occasion, the official stated:

“(…) Did you hear the shameless lie published by La Nación, claiming that it had been requesting access to Route 27 for two years to fix Parque Viva? Oh no, well, if we score one goal, let us score four more, because the area for which they wanted to obtain the permit was four times larger. Aren’t they ashamed of bringing Dirección01 to a standstill, putting all of the western region, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas at risk? (…)”.

Likewise, it has been established that, on July 20, 2022, the President stated at a press conference that one of the reasons for canceling the electric-train plan was the existence of a branch line passing through Parque Viva that would cost 150.000 million colones. Specifically, the official stated:

“(…) We understand that the greater metropolitan area needs a transportation solution. When one sees that this little train included a 150.000-million-colón branch line to Parque Viva, one becomes even more concerned. So, taken together, everything tells us, ‘this is not going forward’ (…)”.

Having considered the foregoing events jointly, it is clear to this Court that Mr. Nombre15, both as a presidential candidate and while serving as President of the Republic, made a series of clear, direct, and forceful statements against Diario La Nación, through which he expressed his intention to destroy that media outlet, as a tsunami would, according to the terms he expressly used. This intention becomes clear from the public statements made by Nombre58 on January 29 and February 6 of the current year, when he referred not only to La Nación, but also to Canal 7 and the CRhoy media outlet, which he further labeled the “scoundrel press.” Nor can it be overlooked that, on January 30, 2022, during the closing event of his campaign, the then-presidential candidate, although not mentioning any specific names, publicly stated that he would sweep away the media “like household garbage,” through the tsunami that he and his party represented or would unleash to put an end to their “party.” In keeping with the foregoing, it is also important to note that the current President, during this same period—specifically, on February 7 of the current year—again hurled epithets at the press, labeling it Nombre148 and bought-off, and emphatically asserted that two or three media outlets would be severely affected under a possible government led by him. Furthermore, on August 3, 2022, Nombre58 used his appearance alongside the Minister of Health to compare the press to rats and other species of wildlife.

In addition, this Court also observes that the foregoing state of affairs coincided precisely with the period during which Diario La Nación published several news reports concerning Nombre58, when he was still a presidential candidate (namely, from August 2021 until at least April 2022). As stated, those reports could not possibly have pleased the current President, much less in the midst of an election campaign, because, as noted, they concerned, among other matters, allegations of sexual harassment for which he had been sanctioned while employed by Banco Mundial, as well as the parallel structures used to finance his political campaign (and this Court further clarifies that it expresses no view or ruling whatsoever as to whether those reports were truthful, since that matter lies beyond its jurisdiction and is not the subject of this amparo proceeding (recurso de amparo)).

Accordingly, this constitutional body has no doubt that the President issued a series of threats against the press, particularly Diario La Nación, as a means of frightening and intimidating it. Feeling offended or aggrieved by the reports published by that media outlet (its editorial line), the current President chose, as has been demonstrated, to attack it openly and publicly, “loud and clear,” as he himself put it. It bears emphasizing that, as has also been demonstrated, this did not occur in isolation; on the contrary, it is evident that these were a series of statements—direct and indirect attacks and threats—pointing in the same direction and made during the same period, in parallel with or concurrently with the publication of the reports in question.

Now, in this context, one might think, or it would be reasonable to understand, that the sanitary order issued against Parque Viva (which directed its closure for events of any kind) effectively amounts to the closure of the media outlet.

This is because that closure—in addition to having the particular features already described—of course harms the finances of Parque Viva and, consequently, Nombre03 S.A., but it also concomitantly adversely affects the news outlet Diario La Nación. It bears recalling once again at this point that both Periódico La Nación and the aforementioned park form part of that company or financial conglomerate (called Grupo Nación S.A.), and that this commercial events venue was acquired precisely to diversify its sources of revenue and offset the loss of earnings caused by the migration of advertising to digital platforms; that is, as a mechanism to assist or contribute to the current financing or maintenance of this particular type of news outlet, as extensively explained in recital VIII of this judgment. Thus, if Parque Viva is adversely affected as it has been (and ceases generating revenue because it is completely closed and has been prohibited, as ordered, from carrying out any type of activity), Diario La Nación is also and inevitably harmed financially, since it forms part of the financial conglomerate represented by Grupo Nación S.A. In other words, if the formula or mechanism used by Grupo Nación to generate revenue and help cover the expenses incurred by Diario La Nación is impaired, this will obviously have negative repercussions for the latter outlet.

This Chamber explained the same in the previously cited Votos Nos. 1782-2015 y 15220-2016, stating that limiting a news outlet’s income also harms it and may even eliminate it. It should be noted that, although the petitioners have clearly stated that their salaries as journalists do not currently depend at all on Parque Viva’s operations (as the President understands and mentions in the report submitted to this Court), they have nevertheless stated that the venue’s closure causes financial harm that adversely affects and impacts the news outlet. In addition, the claimants have stated that Parque Viva forms part of the structures referred to by Nombre138 Nombre01 and that these are precisely what “support their free exercise of journalism.” They have also clearly indicated that the pressure placed on the company’s finances by its closure “places the future exercise of journalism at risk and invites accommodations that compromise it.” In this regard, it must be noted that, as demonstrated in the list of proven facts in this judgment, at least four significant events were being organized at Parque Viva for the third four-month period of 2022; those events represent the receipt of substantial revenue by Grupo Nación, from which the news outlet Diario La Nación likewise benefits, as already explained.

Nevertheless, as was also established, on 14 and 15 July 2022 the Ministry of Health denied the producers of those events the requested capacity certifications because of the closure order issued against the aforementioned venue, clearly causing significant financial harm to Grupo Nación and, consequently, to the news outlet.

With respect to this last point, it should also be noted that this Constitutional Court finds it striking that the closure of Parque Viva was ordered on 8 July 2022, just one day after Diario La Nación published an article defending itself against statements concerning its finances made by Nombre138 Nombre01 on 6 July 2022, in which the Executive Director of Grupo Nación, in turn, stated that the venue under review had resumed operations in March 2022 and had managed to generate cash flow. Nor can it be overlooked that the President, in the report submitted to this Chamber, concluded that La Nación does depend on Parque Viva for its financial survival, which confirms that the closure of this site harms it and that the consequences produced by that act were not beyond his knowledge. Accordingly, this was a hasty, arbitrary, and disproportionate act that weakens the financial stability of Diario La Nación.

Now, as extensively analyzed in recitals VII and VIII of this judgment, what occurred with Parque Viva and the harm thereby caused to the news outlet, in turn, unquestionably amounts to an indirect violation of freedom of expression—that is, covert censorship (censura velada). This is principally because the negative financial repercussions for Diario La Nación could lead, for example and in the event of a financial crisis, to a decision in the short, medium, or long term to reduce or dispense with staff—including journalists—or even to shut down its operations permanently, thereby preventing that outlet and, consequently, those who work there from continuing to exercise freedom of the press, as a manifestation of freedom of expression. As the Corte IDH made clear in the previously cited case Nombre162 y otros vs. Venezuela, restrictions on freedom of expression in situations of this kind affect not only the news outlet (a legal entity), but also natural persons (from shareholders to the journalists who work there).

At the same time, it is clear that the closure of Parque Viva, under the circumstances described here, also amounts to a kind of reprimand or warning directed at the news outlet Diario La Nación because of its editorial stance, intended to make it shift in favor of the government or simply to produce a deterrent or intimidating effect and thereby completely silence or subdue the voices of its director and journalists. It was a clear and unequivocal warning to Periódico La Nación to refrain from engaging in the conduct already described—that is, publishing news that harms the image of the President or of the government in general. It was thus punished for what had already been published and disclosed regarding the President, his political party, and the manner in which he seeks to govern, while also being warned not to disclose news of this kind to the public again. It is also important to note that this threatening message, which infringes freedom of expression, was directed not only at Diario La Nación but also, dangerously, at all other news outlets in the country that might dare publish any news against Nombre138 and his government.

Accordingly, it is evident that the closure of Parque Viva is an indirect, hasty, and illegitimate mechanism that violates freedom of expression. The foregoing state of affairs is prohibited by the American Convention on Human Rights itself in Article 13.3, which also clarifies that such a restriction may be carried out not only through “the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information,” but also “by any other means tending to impede the communication and circulation of ideas and opinions.” The closure of Parque Viva fits perfectly within this latter description and thus becomes another example, like those cited in recital VII of this judgment, of how the fundamental right to freedom of expression may be violated indirectly.

We must observe here that, although Nombre138 Nombre01 maintains that the closure of Parque Viva pursued a legitimate aim (namely, safeguarding people’s lives and health), it cannot be overlooked that this act—besides having been issued arbitrarily, lacking a basis, and being disproportionate under the circumstances already described—also violates one of the most important fundamental rights in our Constitutional State governed by the rule of law: freedom of expression and freedom of the press as a manifestation thereof. The President argues that the authorities acted to safeguard those legally protected interests, even exercising a power permitted by the State (namely, the issuance of health orders (órdenes sanitarias)); nevertheless, the truth is that, at its core, this position harms and punishes the news outlet (with the involvement of the Ministry of Health), thereby plainly constituting a clear and evident illegitimate misuse of power (desviación ilegítima del poder). In essence, the impairment of the aforementioned civil liberties was cloaked in an appearance of legality.

The closure of Parque Viva was carried out through an abuse of power, using an indirect mechanism (disguised as legitimate action), for a purpose clearly different from that stated both in the health order and before this Constitutional Chamber, and this latter jurisdiction is absolutely certain of that fact. Accordingly, we are faced with what this Court has previously described as “(…) a perverse and undemocratic way of using State power to direct opinion, according to a system of ‘reward or punishment,’ against those who exercise the constitutionally and conventionally guaranteed freedoms of the press and expression (…)” (Voto No. 15220-2016).

It should be noted that a narrative wholly credible to third parties (namely, the defense of public interests) was used to justify Parque Viva’s arbitrary closure while concomitantly and flagrantly harming the news outlet Diario La Nación in retaliation for news published against the President and his political party—news which, it bears emphasizing, continued to be published despite the threats made by the latter. Those threats, it should be reiterated, were issued on several occasions, clearly and directly against the news outlet Diario La Nación, until they were ultimately carried out or put into effect, just as the Venezuelan government had previously done when it lashed out against the news outlet Radio Caracas Televisión for broadcasting news against its regime. That conduct was condemned by the Corte IDH, which held, among other relevant points, that the right to freedom of expression may not be arbitrarily restricted on the basis of the political disagreement that a particular editorial stance may provoke within the government (case Nombre162 y otros vs. Venezuela, judgment of 22 June 2015, which was discussed extensively in recital VII of this decision and whose content is fully applicable to this amparo proceeding (proceso de amparo)).

Additionally, it must be taken into account that Nombre138 has also referred to the press in disparaging terms (using confrontational words or comparing it to rats and other species of fauna) and that he even publicly threatened Grupo Nación in other ways, such as by publicly questioning the state of its finances (in connection with bonds issued and purchased by the State), attacking the road project proposed to help address the traffic-congestion problem in La Guácima, and identifying the existence of a branch line passing by Parque Viva as one of the reasons for cancelling the electric-train plan. In essence, he conducted a campaign to publicly discredit the aforementioned news outlet by invoking various matters of national interest (regarding which, it is also clarified, this Chamber refrains from ruling because they fall outside the scope of its jurisdiction and do not constitute the central issue in this amparo action).

Regarding these statements, Nombre138 Nombre01 argues that he has the constitutional right to freely express his thoughts and, in this regard, cites Judgment No. 9855-2022 issued by this constitutional jurisdiction (which referred to the right of public officials to express their opinions), as well as the ruling of the Inter-American Court of Human Rights in Nombre136 v. Venezuela, which indicated that statements made by senior State officials “(…) although they may contain strong and critical content that may even be regarded as offensive, constitute legitimate expressions of thoughts and opinions concerning the particular ways in which a media outlet may practice journalism, which are protected and guaranteed under Article 13 of the American Convention (…)”. Notwithstanding the foregoing, it is important to emphasize that, in the same ruling cited by the President, the Inter-American Court of Human Rights also held that:

“(…) 139. In a democratic society, it is not only legitimate, but sometimes a duty of State authorities, to speak out on matters of public interest. However, when doing so, they are subject to certain limitations, insofar as they must reasonably, though not necessarily exhaustively, verify the facts on which they base their opinions, and they should do so with even greater diligence than that exercised by private individuals, owing to their high office, the broad reach and potential effects that their statements may have on certain sectors of the population, and in order to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Furthermore, they must bear in mind that, as public officials, they occupy the position of guarantors of individuals’ fundamental rights and, therefore, their statements may neither disregard those rights nor constitute forms of direct or indirect interference or harmful pressure upon the rights of those seeking to contribute to public deliberation through the expression and dissemination of their thoughts.

This duty of special care is particularly heightened in situations of increased social conflict, disturbances of public order, or social or political polarization, precisely because of the range of risks that such situations may entail for certain persons or groups at a given time (…)”. (judgment of January 28, 2009) (Emphasis not in the original).

Furthermore, it must be taken into account that although this Chamber, in the aforementioned Judgment No. 9855-2022 of 14:17 hrs. on April 29, 2022, referred to the right of public officials to express their opinions, the fact remains that the circumstances examined on that occasion, which led to the granting of the then-filed amparo proceeding (recurso de amparo), differ greatly from those examined in this new matter. Indeed, that case involved a judicial official against whom an administrative proceeding (procedimiento administrativo) had been initiated because of statements she had made against a former senior official of the same institution for which she works. That is entirely different from what occurred in this case, where Nombre138 Nombre01 himself—the highest-ranking public official in our country, wielding great power and influence—made the statements described above. Although he has the right to express his opinions, he must do so within certain limits arising from his office (as explained by the Inter-American Court of Human Rights in the judgment described supra) and, moreover, without infringing other rights or impairing other equally essential freedoms, particularly in a Democratic State governed by the rule of law (Estado Democrático de Derecho).

In connection with the foregoing, the President should be reminded of something very important that this Constitutional Chamber addressed and explained at length in recital VI (considerando VI) of this Judgment: public officials who occupy positions of high authority, as he does, are required to tolerate, with greater latitude, the criticism to which they are subjected and continually exposed precisely because of the office they hold and the public interest surrounding their actions. This was stated by this Court in the aforementioned Judgment No. 15220-2016 and even by the European Court of Human Rights in reference to Article 10.2 of the European Convention, as was also noted above. It also bears reiterating that the European Court of Human Rights itself (cited by the Inter-American Court of Human Rights in Nombre61 v. Costa Rica) has held that freedom of expression must be guaranteed not only for the dissemination of information or ideas that are favorably received or regarded as inoffensive, but also for those that offend, are unwelcome, or disturb the State.

In addition, it is important to emphasize that this right to criticize—as it may be called—which is enjoyed by the news media, among others, acquires even greater force under certain circumstances, such as during an electoral contest, when citizens have the right to know who the candidates or nominees are for one of the country’s most important offices—indeed, as stated, its highest office. This is precisely what the Inter-American Court of Human Rights explained fully and clearly in the likewise aforementioned case of Nombre67 v. Paraguay; on that occasion, it should be recalled, the Court referred to the importance of freedom of expression in the context of an electoral campaign and held, among other highly significant points, as follows:

“(…) 90. (…) Democratic debate requires that the media, the candidates themselves, and anyone wishing to express an opinion or provide information be permitted to circulate ideas and information freely concerning the candidates and their political parties. Everyone must be able to question and inquire into the candidates’ capacity and suitability, as well as disagree with and challenge their proposals, ideas, and opinions, so that voters may form their own judgment for purposes of voting (…) In this regard, the European Court has established that (…) For this reason (…) it is particularly important that opinions and information of every kind be allowed to circulate freely during the period preceding elections (…)”. (Emphasis not in the original).

It should also be noted that, on that occasion, the Inter-American Court of Human Rights clearly stated that persons who stand as candidates for the office of the Nombre01 Presidency voluntarily expose themselves to public scrutiny and, consequently, run the risk of being subjected to greater criticism, since their activities leave the realm of the private sphere and enter that of public debate.

It must be observed that, in this case, despite what was stated supra, Nombre15, ever since the news reports in question were published, has devoted himself to publicly threatening Diario La Nación and even to justifying such regrettable actions as the arbitrary closure of Parque Viva. All of this has occurred even though the President, like any other citizen who feels aggrieved by publications concerning him, has a series of means or mechanisms provided by the legal system (ordenamiento jurídico), which he may legitimately invoke after publication to defend his honor or ensure the accuracy of the information disseminated (by exercising the right of correction and reply (derecho de rectificación y respuesta) established in sections 66 et seq. of the Ley de la Jurisdicción Constitucional and Article 14 of the American Convention on Human Rights). Although these remedies were available to him, there is no evidence that the President made use of them; instead, he directed his statements against Diario La Nación in the arbitrary manner described, as has been fully established.

Under these circumstances, it is evident that what occurred in this matter constitutes a breach of the Constitutional State governed by the rule of law (Estado Constitucional de Derecho), which has a recognized democratic tradition, including at the international level. The intervention of this Constitutional Court is therefore imperative, especially when account is taken, as has already been stated, of the fact that attacks against independent media outlets—as is precisely the case with Diario La Nación—are often the first objectives of undemocratic and authoritarian political systems, or at least of those moving in that direction. History and events in other parts of the world bear this out.

The threats made by President Nombre01 against Diario La Nación, culminating in the harm inflicted upon Parque Viva and thereby violating freedom of expression and freedom of the press, have unquestionably eroded and fractured our democracy—which, it bears emphasizing, our forebears forged with such great effort—and it is therefore essential to make this finding in order to prevent similar situations from recurring. Today it was Diario La Nación, but tomorrow it could be any other media outlet.

In addition to the foregoing, it is important to emphasize that this case involved not only a violation of Diario La Nación’s right to express itself, issue criticism, and disseminate, among other things, news concerning the current Nombre138 Nombre01 and his conduct before and after assuming that office (as a means, in turn, of scrutinizing his actions in a democratic society), but also a violation of the right of inhabitants of a Constitutional State governed by the rule of law to receive this kind of information—that is, freedom of expression viewed in its social dimension. If the press is arbitrarily silenced, inhabitants are deprived of an important and valuable means of learning what is happening, particularly with regard to the government’s administration (which in turn enables them to oversee its actions and form an opinion about them), and this undoubtedly likewise constitutes an affront to Costa Rica’s democratic system.

For all the reasons stated supra, this Chamber finds that, in this case, there has been a clear violation of section 29 of our Constitution (Carta Magna) and Article 13.3 of the American Convention on Human Rights, which expressly prohibits covert censorship (censura velada) or indirect restrictions imposed “by any means” on the right to freedom of expression. Consequently, this aspect of the application must also be granted, with the consequences set forth infra. Before doing so, however, it is appropriate to recall the following statement from the Declaration of Chapultepec, which is fully applicable to this case:

“The struggle for freedom of expression and freedom of the press, by any means, is not a one-day undertaking; it is a permanent endeavor. It is a cause essential to democracy and civilization in our hemisphere. It is not only a bulwark and an antidote against every abuse of authority; it is the civic lifeblood of a society. To defend it every day is to honor our history and master our destiny.” D. FINAL CLARIFICATIONS OF INTEREST. Finally, at this point in the judgment, this Constitutional Chamber deems it appropriate to clarify the following matters:

First: Through this judgment (voto), this constitutional jurisdiction is not saying that actions may be taken contrary to what the legal system (ordenamiento jurídico) dictates; it neither proposes nor urges acting outside the framework of the law. On the contrary, what the Chamber states is that the law must be applied correctly and not precipitously, recklessly, or arbitrarily, as was shown to have occurred in the case under review.

Second: The ruling in this judgment does not preclude continued oversight of the operation of commercial enterprises, whether or not they are related to media outlets. The powers to monitor, supervise, and verify compliance with the requirements and permits governing the operation of these establishments must continue to be exercised, but in accordance with the already established legal framework, and not in the reckless, arbitrary, and precipitate manner recently employed in the case assessed in these proceedings.

Third: In the sense set forth above, with respect to the specific case, this Court is aware that the life, health, and physical integrity of the residents of the La Guácima de Alajuela area, and of those attending activities held at the establishment known as Parque Viva, must be protected and safeguarded. As stated above, this jurisdiction has always sought, through extensive case law, to safeguard these fundamental rights, and this is entirely beyond dispute. Nevertheless, the exercise of the public powers vested in the administrative authorities must conform to the body of applicable law (bloque de legitimidad), and not be carried out in the reckless manner employed in this particular case.

Fourth: It must be absolutely clear that this judgment does not state that any commercial activity associated with a media outlet is exempt from the controls required by the legal system. Furthermore, as has also been explained, not every administrative act or conduct that imposes a burden or establishes a measure having an adverse effect on the financing structures of media outlets constitutes, in itself, the indirect infringement described above. A complete reading of this judgment neither establishes nor suggests such a rule in any way. What has been established, and must be emphasized, is that closing a business or commercial establishment for the purpose of suppressing or silencing a media outlet is, in reality, a subterfuge for violating civil liberties and fundamental rights, particularly freedom of expression and freedom of the press, and thereby improperly and indirectly restricting those freedoms, which, as repeatedly explained, are inherent in the very existence of democracy; hence the protection that must be afforded by this Constitutional Court.

X. COROLLARY

In view of the foregoing, this amparo proceeding (proceso de amparo) must be granted, because it has been demonstrated that the closure of Parque Viva was carried out arbitrarily, without valid objective grounds, in retaliation for the editorial position maintained by Diario La Nación regarding the current Nombre138 Nombre15, and with the sole aim of silencing that media outlet’s voices, clearly to the detriment of the constitutionally and conventionally protected freedoms of expression and of the press.

XI. NOTE BY JUSTICE Nombre91

THE HEIGHTENED PROTECTION OF FREEDOM OF EXPRESSION UNDER THE PACTO DE SAN JOSÉ.

This case is particularly rich in constitutional analysis and presents an unusual scenario involving the control of political power. Within a system of checks and balances, the Executive Branch requires judicial oversight and review. The detailed account provided in the majority judgment concludes that health order MSP-DRRSCN-DARSA2-OS-0368-20022 is an administrative act (acto administrativo) that is “….openly arbitrary, lacking any reliable basis, and wholly disproportionate..”. The judgment that I join describes facts and indicia (indicios) supporting that conclusion. It is no minor matter for the constitutional court, through an amparo, to determine that Executive Branch authorities have committed an arbitrary act. It is an openly arbitrary act, incompatible with the rules prevailing in a state governed by the rule of law (Estado de Derecho). Error or overreach is a risk invariably assumed by anyone who makes decisions affecting the rights of third parties. Despite the large number of cases heard by this Chamber through amparo proceedings, special attention must be paid to cases such as this one, in which a serious instance of arbitrariness is evident in an act related to a health matter, but which also constitutes a violation of freedom of expression, a freedom also recognized under international human rights law.

In a democracy, political authorities are subject to constant review of their decisions; this is the healthy balance that ensures the reasonable exercise of presidential or parliamentary power. I consider that, in this case, the conduct of the Executive Branch constitutes an abuse of power (desviación de poder), because it undertook actions that appeared legitimate but lacked technical support and seemed disproportionate. Under legal doctrine and the Ley General de la Administración Pública, abuse of power may be defined as the exercise of administrative powers for purposes other than those established by the legal system. Abuse of power is “The pursuit of a purpose other than the principal one, to the detriment of the latter...” (art.131.3 LGAP). It is a defect in the purpose of an administrative act, namely, the use of power for ends and reasons different from those for which that power was conferred.

In the face of arbitrariness, the health of democracy is put to the test, as are institutional and judicial safeguards. Through that adversarial process, the exercise of power is kept from exceeding its bounds; this is how we must live, amid checks and balances—the dialectic that prevents authoritarianism. It is the dialectic of oversight to which the Executive Branch, particularly Nombre138 Nombre01, must submit. The exercise of power requires checks, objections, and dissent. It is not easy for someone entrusted with a delicate political responsibility always to make the right decisions. In this case, the course taken proved impermissible in a democratic state governed by the rule of law, but the administrative authorities’ power to undertake other actions to protect health and enforce the prohibition against arbitrariness (interdicción de la arbitrariedad), while also protecting the freedom of a press outlet, remains intact. In this area, the Executive Branch has broad powers to address the serious problems of vehicular traffic on all of the country’s roads.

In this case, in addition to the Executive Branch’s gross arbitrariness in the exercise of its powers, there is an indirect restriction on freedom of expression and thought. Law requires subtlety and nuance; it therefore demands a legal framework capable of capturing unpredictable reality, with even greater clarity when the issue is the control of power. That is why Article thirteen, subsection three, of the American Convention on Human Rights refers to indirect means or methods of restricting freedom of expression: the definition is broad, encompassing an inexhaustible range of possibilities, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, “…or by any other means tending to impede the communication and circulation of ideas and opinions…”; it is an open, flexible definition that includes a multitude of abusive actions through which formal power restricts such an important right.

Law and its application require subtlety and a context-specific assessment in order to capture reality, which is so rich in twists and disguises. Otherwise, legal oversight is of little use, particularly when the purpose is to strengthen the effective protection of fundamental rights. In this case, not only is there a gross violation of the fundamental right to due process (debido proceso), but the governmental action also seeks to use the health order (orden sanitaria) to restrict a news outlet. This would have seemed unthinkable thirty years ago, but social and economic changes have transformed the economic structures of private news media. This is not the best setting for giving the press greater independence, but it is the reality. Many media outlets form part of a complex economic conglomerate, thereby ensuring their economic and media-related survival. That is the economic reality of many news outlets; their continued existence as media organizations is achieved through complex structures of legal entities (personas jurídicas) in which the anonymous power of money prevails, without anyone being able to identify clearly the owners of those outlets; they form part of a complex network in which economic groups converge through interconnected channels.

Through this diverse and complex structure, the media outlet is financed by a varied ensemble of companies that are not directly engaged in journalism. Everything has changed in the media; this is a reality that cannot be ignored by assuming, with inadmissible oversimplification, that a media outlet consists solely of its name and journalistic activity. It is a transformation similar to the one that has occurred on social media, where anonymity prevails and the roots of its activity are not visible to ordinary citizens. Today’s news media form part of a complex legal structure, with diverse activities and interconnected channels linking them to the economic structure to which the news outlet belongs. Anonymity has worsened, just as it has on social media, where there is not even any certainty as to the identity of the person presenting himself or herself as a participant in a public debate.

This corporate and economic context, described in very simple terms, permeates the case involving the closure of Parque Viva. Indirect actions may take the form of very specific and forceful measures, such as shutting down an activity for health reasons or, potentially, actions by the tax administration. The provision of the American Convention on Human Rights possesses unusual flexibility: it does not limit what may be considered an indirect action, but instead allows reality, in all its variety and unpredictability, to fall within a broad and flexible legal provision. This open concept made it possible to regard compulsory membership in a professional association (colegiación obligatoria) for journalists as an indirect restriction on freedom of expression, as determined in Advisory Opinion OC-5/85, dated November 13, 1985, of the Inter-American Court; requiring journalists to belong to a professional association on public-order grounds was classified as an indirect restriction on the exercise of freedom of expression.

This restriction permanently limits a fundamental right, to the detriment of those who do not hold such membership. (See IACtHR advisory opinion, 1985: paragraphs 48 and 76). I also highlight the Case of Nombre65 v. Perú, in which the IACtHR classified the arbitrary use of the State’s regulatory powers, when exercised to intimidate a media outlet, as an indirect restriction on freedom of expression (see IACtHR, 2001: paragraphs 158-163). The Court’s precedents have indicated that an indirect restriction also exists when statements by public officials may be characterized as forms of direct or indirect interference, or as impermissible pressure on the rights of those seeking to contribute to public deliberation by expressing and disseminating their thoughts (see IACtHR, 2009: paragraph 151); likewise, it has been deemed an indirect restriction when the press is required, in a disproportionate or discriminatory manner, to obtain accreditation in order to participate in official events (see IACtHR, 2009: paragraph 375).

All these examples demonstrate the breadth of the provision contained in subsection three of Article thirteen of the Pact of San José. The aforementioned provision imposes no restriction; it merely defines an open concept encompassing all possible governmental actions that employ an indirect procedure to restrict freedom of expression. There is nothing novel in what this Court stated in the decision I joined; it merely applied to the specific case a legal provision whose breadth and flexibility allow it to encompass various forms of governmental interference with freedom of expression. This case has two key elements: the manifestly arbitrary act involved in the closure of Parque Viva and the indirect restriction imposed on a news outlet, under the provisions of the American Convention on Human Rights.

The discussion and assessment of this constitutional protection proceeding (amparo) reminded me of decision 2016-15220. In that judgment, we recognized an indirect restriction on freedom of expression arising from the reprehensible conduct of Banco Nacional officials. In that decision, I included a separate note setting out my view of a range of actions by de facto powers (poderes fácticos), in relation to which the jurisdiction of the Chamber and the provisions of the Pact of San José prove insufficient. There are spheres in which law does not prevail; they are the realm of wild powers (poderes salvajes), in Nombre176’s terminology. How wonderful it would be if the social state (estado social), the independence of the judiciary, and social rights had the safeguards that the Pact of San José provides for freedom of expression. I can only imagine what social justice and democracy would be like if that were possible.

The American Convention is biased toward individual rights, with provisions concerning social rights that are excessively abstract. Nevertheless, the provisions of the Pact of San José concerning freedom of expression are wise and adapt to sociological and political transformations; yet in other areas that are equally sensitive for democracy and the social state, anomie and “political expediency” prevail. I believe that the note I included in that decision on a similar issue remains relevant; my reflections on the limitations and weaknesses of legality in our democracy are still pertinent. My status as a judge does not turn me into a silent witness to what I consider to be the injustices that very clearly pervade the cases we decide. I do not like that indifference; I do not like that silence. Excesses by formal power require oversight and counterbalances; I have no doubt that de facto powers must also be made more visible to the public, with the understanding that they too exert an influence that escapes the sound checks of a full democracy.

So much remains to be done regarding elections, participation, the vitality of the social state, and labor protections, which have declined so severely over the last fifteen years that a Collective Bargaining Agreement (Convención Colectiva) now seems a luxury and privilege enjoyed by a minority of workers. Indeed, a case such as this one, which arouses passion and controversy, is of lesser importance when compared with the deterioration of our welfare state. The frustration of so many citizens should not lead us to exaggerate the importance of this litigation; there are other challenges and issues on which we face paralysis, deterioration, and silence. The issue of vehicle traffic at Parque Viva has a solution, but I cannot say the same of the problems confronting democracy and the social state in Costa Rica. These are unresolved matters for Costa Rican society that transcend what is being debated in this constitutional protection proceeding. I reproduce verbatim the note I included in the Banco Nacional decision, which, as I have stated, remains relevant:

“Note by Justice Nombre91. Freedom of opinion and its distortions.

The constitutional protection proceeding filed by Diario La Nación alleges a serious distortion of freedom of the press and access to information. However, the event underlying the proceeding raises a series of questions about the role of the media, the threat that they may act as de facto powers, and the serious distortion of freedom of information caused by the concentration of media ownership. Many actions that distort the state of public opinion and the rules of democracy are not heard at the constitutional level. This is the world of wild powers and their anti-values, which corrupt what a democratic society should be. It is very healthy for democracy that the actions attributed to some of the senior officials of a state-owned bank can be assessed in light of constitutional authority and fundamental rights. Nevertheless, there is a threat that I cannot disregard, arising from the actions of de facto powers that completely distort the fundamental freedoms underpinning democracy.

The protection and oversight of freedom of opinion are focused on public authorities, but there are other actors that are far from being assessed by constitutional oversight bodies. De facto powers escape these controls, including, among others, the Church, the Army, financial institutions, and the media. The influence of these powers enables them to alter social and political events and influence the decisions of the institutional system.

Thus far, the concept of de facto powers has been used to identify actors or groups that influence public decisions through particular mechanisms. It is, however, a controversial concept, and there is no consensus as to its content. Even academics hold divergent positions. The differences concern not only the quality of democracy and the role of these powers within it, but also which groups themselves wield this de facto power. Thus, the media, banks, and organized crime are equated with one another, even though their conduct toward the State differs markedly. Yet these significant differences do not prevent us from acknowledging the existence of a number of extremely powerful actors that are not visible and are subject to no form of scrutiny.

Media concentration aggravates the distortion that de facto powers (poderes fácticos) can exert on the quality of democracy and the public-opinion regime (régimen de opinión pública). In the case reported by the newspaper La Nación, there is no doubt that the public-opinion regime has been seriously distorted and contaminated, but other actions by various actors persist, especially de facto powers, which, without any oversight or limitation, shape the democratic process and the determination of what is important for democracy. These powers can influence the exercise of political action and can neutralize or manipulate it. All these distortions caused by de facto powers corrupt the public-opinion regime.

Constitutional jurisdiction (instancia constitucional) and the protection of fundamental rights (tutela de los derechos fundamentales) do not extend to de facto powers; these are actions that transcend the framework of oversight and discussion characteristic of constitutional power. This is power exerted outside the formal system. So many actions can be carried out beyond the reach of transparency, invisible to the enforcement of fundamental rights. Real power factors operating without oversight or visibility can colonize and influence the functioning of institutions or the state of public opinion in a referendum or an election.

The economic power of de facto powers exceeds that of a public institution in distributing public funds for advertising. A de facto power, if it does not restrain itself, may finance certain candidates or groups; it may also condition the participation of advertising firms or polling companies with respect to a candidate it considers “inconvenient,” causing an aspiring legislator or president to lose, during the electoral contest, their best personnel for directing the public-opinion or image aspects of their campaign. These actions leave no record; they are unrestrained powers (poderes salvajes) acting without oversight or transparency and influencing the state of public opinion regarding an election or a decision of political significance. Half of the political arena lies in shadow; only the acts and decisions of public-law bodies and authorities can be subjected to healthy scrutiny.

In octubre de 2010, the Second Report on Democracy in Latin America was presented, prepared by the Programa de las Naciones Unidas para el Desarrollo (PNUD), with the participation of Nombre109. The report mentions de facto powers that can influence official centers of power either fairly or from the shadows.

In the survey included in the aforementioned report concerning who exercises real power in Latin America, the response percentages were as follows: economic groups, businesspeople, and the financial sector, 79.7%; media outlets, 65.2%; churches, 43.8%, labor unions, 31%, illegal powers: mafias, drug trafficking, guerrillas, paramilitary groups, 26%, civil-society organizations, 12.8%; and the Indigenous sector, 3.2%. Regarding formal powers, the responses were: Executive Branch, 36.4%; Legislative Branch, 12.8%; and Judicial Branch, 8.5%. This sample of the various nonformal powers includes, of course, the media. Pressure or retaliation such as that which we have witnessed in this matter may occur in the world of de facto powers, including the press, without becoming visible or capable of being reported. In such a sensitive matter, it is appropriate to abandon naïve or reductionist views.

This is a reflection I offer in connection with a significant case in which improper pressure was exerted against a press outlet; yet in the world of unrestrained powers, as Nombre176 calls it, these actions are carried out in the shadows and without constitutional oversight. They are actions contrary to the principles and rules of the game in a democracy, as occurred in this case. The salutary corollary of this case is that there can be no improper pressure or manipulation with respect to freedom of opinion and thought. Throughout Costa Rican history, the conduct of Diario La Nación has always been beyond reproach; it has truly provided lessons in journalistic ethics throughout our history. Nevertheless, I cannot disregard the fact that, amid the opacity surrounding various actors who exercise de facto power, actions more serious and reprehensible than those attributed to the senior officials of Banco Nacional are carried out. This is a culture of naked powers, devoid of any ethical ideals, concerned solely with improperly influencing the interests of democracy and the will of the citizenry.

There is no doubt that actors who possess and exercise, in practice, great power and engage in pressure, distortion, or manipulation cannot subjugate and violate the rules of a state governed by the rule of law (Estado de derecho). In that world of pressure and coercive conditions, in that culture of unrestrained powers, constitutional jurisdiction can do nothing; thus, the most serious actions against the public-opinion regime and democracy remain hidden. This is illegitimate power that remains submerged.

With regard to freedom of information and the right to information, threats arise that may be related to the conduct and influence of de facto powers, such as economic concentration and political control of the media. In other words, the actions of de facto economic powers may condition the activities of social media of opinion; this is another perspective on this multifaceted phenomenon. Media concentration causes yet another extremely serious distortion of freedom of thought and opinion, alienating these highly significant constitutional values; access to information and freedom of opinion may be structurally distorted by media concentration.

It must be recognized that ownership of information media constitutes power; it is a source of power that should foster pluralism and democratic coexistence, but it must be subject to rules derived from the very essence of the Rule of Law, preventing media power from becoming absolute power. It must be made subject to the law by defining limits and binding obligations to ensure that freedom of information and the right to information flow without distortion. The second rule is the separation of powers, applying the old rule of Nombre177, from which the fourth estate cannot be exempted, because, to qualify as such under a democratic regime, it must be subject to safeguards ensuring its independence from political and economic power. This assessment requires profound and balanced reflection: media independence requires independence from centers of economic power and political parties. If ties exist, those ties must be as transparent as public information.

These rules, and others proposed by Nombre110, would strengthen the role of the media so that they reflect a state of public opinion arising from pluralism and genuine citizen participation. In an article published in 2004 entitled “Freedom of Information and Private Property: A Non-Utopian Proposal,” Nombre176 proposes various measures so that media power is not exercised in the shadows of de facto powers but instead adheres to the following guidelines: “….Guarantee separation between the administration of information and ownership; establish oversight authorities tasked with safeguarding freedom of the press and information; prevent every form of concentration of ownership; exclude employer or political controls; ensure that everyone can access the media; support noncommercial television through adequate financing while also creating shared infrastructure; affirm the objectively ‘public’ nature of television and expand the space afforded to public television—these are only some of the possible reforms for confronting the imminent danger of ‘Big Brother’…” (see: http://www.nexos.com.mx/ p=11115 ) In assessing media concentration, a policy that strengthens the role of television in a democratic society is particularly important.

So many attacks on freedom of information and opinion are imperceptible, not only because they are rendered culturally invisible, but also because of the impunity of a system in which powers act without oversight and in opacity. Much remains to be done in building and strengthening democracy and the dignity of citizens….”

XII.Documentation submitted to the case file (expediente). The parties are advised that if they submitted any paper document, as well as objects or evidence contained on any additional electronic, computer, magnetic, optical, telematic, or new-technology device, these must be collected from the court office within a maximum period of 30 business days from notification of this judgment. Otherwise, any material not collected within that period shall be destroyed, pursuant to the “Regulation on Electronic Case Files before the Judiciary,” approved by the Full Court at session number 27-11 of 22 de agosto de 2011, Article XXVI, and published in Judicial Bulletin number 19 of 26 de enero de 2012, as well as the agreement approved by the Superior Council of the Judiciary at session number 43-12, held on 3 de mayo de 2012, Article LXXXI.

POR TANTO:

By majority vote, the constitutional relief action (recurso) is granted in all respects and, consequently, health order (orden sanitaria) No. MS-DRRSCN-DARSA2-OS-0368-2022 issued on 8 de julio de 2022 is annulled, as are the provisions of official letter No. MS-DRRSCN-DARSA2-1724-2022 of 15 de julio de 2022. The State is ordered to pay the legal costs, damages, and losses caused by the facts underlying this ruling, which shall be quantified in judgment-enforcement proceedings before the administrative courts (ejecución de sentencia de lo contencioso administrativo). Justice Nombre91 files a note. Justice Nombre111 provides additional reasons and adds that, because the constitutional amparo action (recurso de amparo) granting relief and annulling the aforementioned health order has been decided, the respondent authorities must, within eighteen months following notification of this decision, undertake all coordination measures they deem appropriate and necessary to implement the remedial plan referred to in this matter, or any other plan they consider suitable, for the purpose of providing a comprehensive solution to the traffic-congestion problem affecting the residents of La Guácima de Alajuela in connection with events involving large gatherings of people and vehicles at Parque Viva, which, in the event of an emergency, could jeopardize people’s health or physical integrity.

Justice Nombre112 partially dissents (salva parcialmente el voto) as follows: for her own reasons, she grants the action with respect to freedom of expression and denies it with respect to the annulment of the health order and the aforementioned official letter, because she considers that matters relating to those instruments may not properly be heard in this jurisdiction. Communicate and provide notice.-.

Nombre113.

Nombre138 Nombre114. Nombre115.

Nombre116. Nombre117.

Nombre118. Nombre119.

Additional reasons of Justice Nombre111.

I concur with the majority opinion, which grants the action and annuls the cited health order, because it has been demonstrated with complete clarity that the closure of Parque Viva was an arbitrary act carried out in retaliation for the editorial position maintained by Diario La Nación regarding Nombre138 Nombre01 and with the objective of silencing that media outlet, to the clear detriment of freedom of expression and freedom of the press, which are protected under the Constitution and international conventions.

Nevertheless, in view of the annulment of health order N° MS-DRRSCN-DARSA2-OS-0368-2022, issued on 8 de julio de 2022, as well as the provisions of official letter N° MS-DRRSCN-DARSA2-1724-2022 of 15 de julio de 2022, I deem it necessary for the respondent authorities (together with the Municipalidad de Alajuela and any other competent public institution) to provide effective protection of the fundamental rights of the residents of La Guácima de Alajuela.

To that end, I consider it appropriate and timely for this Constitutional Court to order that, within eighteen months following notification of this decision, all coordination measures deemed appropriate and necessary be carried out in order to implement the remedial plan repeatedly referenced in this matter, or any other plan they deem appropriate, for the purpose of providing a comprehensive solution to the traffic congestion affecting the residents of La Guácima de Alajuela in connection with events involving mass gatherings of people and vehicles at Parque Viva, and which, in the event of an emergency, could jeopardize people’s health or physical integrity.

In the case before us, it must be borne in mind that this Chamber has protected the right of citizens to enjoy a physical public space that meets the necessary accessibility requirements, permits adequate mobility, and safeguards people’s physical integrity, health, and lives.

Judgment N° 2014-013854, issued at 9:05 hours on 22 de agosto de 2014, developed what legal scholarship refers to as the “Right to the City,” which includes the following:

“(…) The ‘World Charter for the Right to the City’ recognized—among others—the right of accessibility to public transportation services and physical public space—which encompasses both users’ movement from one place to another within the city and the availability of adequate sidewalks, pedestrian areas, etc.—and the right to inclusion, which, as this Court has held, entails removing all architectural barriers that prevent persons from moving about by their own means, as well as installing the assistance necessary to ensure accessibility for persons with disabilities, children, older adults, etc. For its part, the ‘Convention on the Rights of Persons with Disabilities’ enshrines everyone’s right to enter, move through, and remain in a place safely, comfortably, and independently (…)”. (Criterion reiterated in Judgment N° 2015-04827, issued at 9:40 hours on 10 de abril de 2015, and Judgment Nº 2016-009051, issued at 9:05 hours on 1 de julio de 2016, among other decisions of the Constitutional Court).

Consequently, if a group of citizens, within their territorial jurisdiction, experiences problems due to the obstruction of public roads, affecting their quality of life and general well-being, this falls within the concept of local interests and services under section 169 of the Political Constitution. The causes of such problems—and, even more importantly, their solutions—must be identified precisely so that they may be implemented as soon as possible; for this purpose, the respondent authorities are responsible for coordinating with national-level institutions having jurisdiction to address the problem. Indeed, the Chamber has developed the municipal duty to coordinate with other state institutions in order to serve local interests and properly provide local services. Judgment N° 1999-5445, issued at 14:30 hours on 14 de julio de 1999, stated as follows:

“(...) they concern the duty of coordination that must exist among local governments, decentralized institutions, and the Executive Branch in carrying out the functions entrusted to them, which must be analyzed on the basis of the very nature of municipal autonomy. By virtue of the provisions of constitutional article 170, municipalities (local corporate entities) enjoy functional, administrative, and financial autonomy in the administration of local interests and services (article 169 of the Political Constitution) (...)”.

Furthermore, in this matter it is important to bear in mind the contents of technical report N° CRC-GG-OF-012-2022, of 12 de julio de 2022, signed by the General Manager of the Asociación Cruz Roja Costarricense, which acknowledges the difficulties faced by emergency vehicles on the area’s public roads when responding to incidents, a situation that worsens when mass events are held at Parque Viva. That document informed the Minister of Health as follows: “(…) In the specific case addressed by this inquiry, it is known that the public roads in the community of La Guácima de Alajuela and surrounding areas are inadequate for our emergency units to gain rapid access when responding to ordinary incidents, a situation that may worsen when mass events are held, since we have learned of situations in which a mere mechanical failure involving a private vehicle substantially delayed the arrival of our ambulances.

Historically, the response times of the various institutions in attending emergencies have been affected by traffic congestion at various points throughout the national territory. This situation also occurs in La Guácima de Alajuela, where emergency-vehicle travel times have increased by varying amounts, resulting in delays ranging from 10 minutes to 30 minutes. In certain specific cases, the arrival or departure of our vehicles has taken even longer because of the number of vehicles parked along the sides of the public roads surrounding the event site, and even because of pedestrians traveling on the public roads, requiring vehicles to proceed with greater caution. In this particular case, the operational structure of the Benemérita Cruz Roja Costarricense has worked with three response scenarios for an analysis of the situation that enables the authorities to make decisions within the scope of their respective powers. 1.

Traffic accidents: when responding to a traffic accident, depending on its severity, various resources may be required to arrive, including ambulances, rescue trucks, and even the presence of the Cuerpo de Nombre140 de Costa Rica. It should be noted that there may be cases in which patients are trapped as a result of the incident, requiring specialized rescue equipment to be dispatched to the scene according to the circumstances. In any such case, patients require immediate attention because, in some instances, their lives may be in imminent danger. 2. Structural fires: when responding to structural fires, the Cuerpo de Nombre140 generally responds to extinguish the fire, and the Cruz Roja Costarricense comes to the scene to attend to patients. Therefore, depending on the magnitude of the incident, the amount of resources deployed could be affected by the difficulty of accessing the facilities at risk and evacuating patients.

Medical cases: Depending on the severity of the case, the patient must receive prompt attention, since delays in response times have a negative impact on the person’s prognosis and may potentially endanger their life. For example, in the event of cardiorespiratory arrest, access to the patient is ideally required in less than 10 minutes. Furthermore, depending on the circumstances, the Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV) at the scene may require assistance from another Advanced Life Support Unit (USAV), since this second ambulance has more highly trained personnel, more equipment, and therefore a greater response capacity, thereby offering a better opportunity to protect the patient’s health. It should be noted that when two or more units are present at the scene of the incident, a large and safe area will be required so that rescuers can provide care (…)”.

In light of the scenario described and for the reasons stated, I reiterate that, in order to prevent a failure to provide effective protection of the physical integrity, health, and lives of the residents of La Guácima, as well as of any other citizen, I deem it necessary to implement the remedial plan repeatedly cited in this matter, or any other measure the authorities deem necessary, to resolve the traffic-congestion problem affecting that area in connection with events involving mass gatherings of people and vehicles at Parque Viva.

Nombre120. Nombre111 Case file 22-16697-0007-CO DIFFERENT REASONS AND PARTIAL DISSENTING OPINION OF JUSTICE Nombre112 regarding judgment 2022-25167 (Parque Viva) TABLE OF CONTENTS Contents

I. Preliminary considerations

II. Executive summary

III. Brief analysis of the procedural elements of this matter

A. Type of proceeding B. Parties 1. Petitioners 2. Respondents C. Challenged act D. Protected interest E. Admissibility and standing F. Claims for relief G. Factual framework

IV. Partial dissenting opinion

A. Admissibility stage: procedural prerequisites 1. Formal aspects of the filing 2. Jurisdiction of the adjudicative body a) The protected interest: fundamental rights b) The challenged act: the allegedly harmful conduct c) The nature of the injury d) The nature of the proceeding 3. Capacity and standing of the parties B. Merits stage: matters to consider and reconsider 1. General considerations 2. Definitive verification of certain procedural prerequisites a) The challenged act: the health order and the related official letter (1) The order and the related official letter (2) The unsuitability of the amparo proceeding (amparo): constitutional case law (a) Case law during ordinary times (b) Case law during the pandemic (c) The case of Nombre107 (3) The suitability of the administrative-litigation proceeding (vía contencioso-administrativa) (a) Constitutional provision for judicial review of the Public Administration (b) Scope of review in ordinary proceedings (c) Advantages of ordinary proceedings b) Standing (1) Framework of the issue (2) Regarding the contention that only certain parties would have standing before the Chamber (3) Petitioners’ arguments concerning the basis for standing (4) The judgment’s considerations regarding dependency (5) The financial statements and the alleged dependency

V. Different reasons

A. Introduction B. Possibility of adjudicating the alleged injury C. No violation of article 13.3 of the CADH 1. Very brief exegetical analysis of article 13.3 of the CADH 2. Substantive consequence of the failure to establish dependency 3. No violation, even if standing existed a) Regarding the impairment of freedom of expression b) Regarding the arbitrariness of the acts (1) If the acts are not arbitrary: consequences (2) If the acts are arbitrary: consequences D. Considerations regarding the case law cited in the case file 1. The case law of the Inter-American Court of Human Rights 2. The case law of the Constitutional Chamber E. Additional reflections on the absence of a violation F. Grounds for granting the petition with respect to freedom of expression 1. Statutory and jurisprudential framework 2. Factual framework 3. Considerations regarding the statements 4. Conclusion

VI. Reflections on the case file and the judgment

A. The dilemma: turning the amparo into an ordinary proceeding or respecting its summary nature 1. Regarding evidentiary matters 2. Regarding the parties brought into the proceeding B. Consequences of annulling the challenged acts C. Regarding the scope of the award of damages

VII. Conclusion

Preliminary considerations With the customary respect for the other members of the Constitutional Chamber and the parties to these proceedings, I intend to set forth my different reasons for granting the petition—with respect to the violation of freedom of expression (libertad de expresión)—and the arguments supporting my partial dissenting opinion (voto salvado parcial), by which I would deny it—with respect to the annulment of the challenged health order (orden sanitaria) and related official letter (oficio) issued by the Ministry of Health.

As a preliminary matter, I will provide a very brief description of the dispute (litis). I will then explain my position. However, to facilitate its understanding, I will first develop my partial dissenting opinion and then my different reasons. Lastly, I will offer some reflections on the case file and the judgment itself that confirm what is stated in the dissenting opinion.

Much to my regret, this text is lengthy, but it is designed to be read at no fewer than three levels of depth. The first is superficial: for this, it will suffice to read the table of contents, the executive summary, and certain underlined passages appearing on various pages. The second is somewhat more thorough and entails reading the entire text straight through, most likely skipping the extensive quotations from case law. Finally, there is a more exhaustive level, which requires reading everything, including the footnotes.

I have had to elaborate on certain subjects because of their importance or because the intended purpose required it. I explain the latter point: contradicting something stated in the judgment is not the same as arguing that something was not stated in it. That is why, for example, the discussion concerning the examination of standing (legitimación) during the merits phase of the petition is so lengthy, since it was necessary to quote and annotate passages from the petitioners’ submissions and from the judgment.

Executive summary The purpose here is to condense the main ideas concerning the following: the dissenting opinion regarding the annulment of the challenged acts, the different reasons for which I grant the petition insofar as it concerns the infringement of freedom of expression, and my reflections on the judgment.

The case Several journalists from the newspaper La Nación challenge a health order and a related official letter issued concerning Parque Viva, which belongs to Grupo Nación S. A. (hereinafter, Grupo Nación), the owner of the newspaper. They contend that their freedom of expression has been infringed as a result of those acts.

Position of the Chamber’s majority It grants the amparo petition (recurso de amparo) in all respects and annuls the challenged administrative acts (actos administrativos), because it finds that they are arbitrary and constitute manifestations of abuse of power (abuso de poder) and that, pursuant to Article 13.3 of the American Convention on Human Rights (ACHR), they were indirect means of infringing the petitioners’ freedom of expression.

My position Partial dissenting opinion. I deny the petition with respect to the annulment of the challenged acts because I consider that they should be heard through ordinary legality proceedings and not in an amparo proceeding. This conclusion is based on the following arguments.

Every amparo petition is analyzed by the Constitutional Chamber in two phases:

Admissibility phase (fase de admisibilidad). During this phase, the Chamber examines whether, prima facie, the petition satisfies the procedural prerequisites (presupuestos procesales): (1) formal requirements; (2) the jurisdiction of the adjudicatory body, which is determined by the interest sought to be protected (the fundamental rights and freedoms alleged to have been violated), the challenged subject matter (the conduct alleged to be arbitrary), the nature of the infringement (whether direct or indirect), and respect for the nature of the proceeding (which is summary); and (3) the parties’ capacity and standing.

In the present case, doubt could arise regarding an issue that determines the adjudicatory body’s jurisdiction: namely, whether the challenged subject matter is amenable to review in summary proceedings. The question arises because the Chamber—for various duly justified reasons—has not ordinarily reviewed health orders and because the order challenged here concerns particularly complex technical matters. This suggests that an amparo proceeding is not the appropriate avenue for the Chamber to rule on the alleged arbitrariness of those administrative acts. Doubt also arises as to whether the petitioners have standing, because they allege an infringement of their own freedom of expression, while the challenged administrative acts concern real property owned by the corporate group to which the newspaper where they work belongs. However, because it is alleged that those acts are indirect means of infringing freedom of expression, which Article 13.3 ACHR prohibits, notwithstanding those doubts, it might appear reasonable that the President of the Chamber admitted the petition for a decision on the merits.

Merits phase (fase de conocimiento): During this phase, once all reports from the respondent party and any other materials submitted to the case file have been gathered, the Chamber conducts a second analysis in two directions: it definitively verifies whether the procedural prerequisites are indeed satisfied and, only after confirming that they are, analyzes the merits of the matter.

Regarding the first inquiry, in the present case, in my view, the two issues giving rise to reasonable doubts must be examined: whether the challenged subject matter may be heard in summary proceedings and whether the petitioners have standing.

After studying the factual framework, reviewing the evidentiary record (which is extensive, voluminous, originates from multiple authorities involved, and for the most part concerns technical and particularly complex matters), and examining the applicable rules and case law (issued both before and during the pandemic), I conclude that the challenged subject matter should not have been examined in a summary proceeding such as an amparo proceeding. In that regard, I explain why the contentious-administrative jurisdiction (vía contencioso-administrativa) is the proper forum for examining the petitioners’ complaint, not only because the Constitution expressly so provides, but also because it offers many more advantages for a rigorous examination of the issue, as well as the possibility of ordering interim relief (medidas cautelares) and even requesting expedited processing. Likewise, after examining the factual framework and finding no evidence supporting a connection between the relief sought and the challenged subject matter, I conclude that the petitioners lack standing. I also refute their contention that they lacked standing to resort to the contentious-administrative jurisdiction to challenge the administrative acts at issue and to allege there the infringement of freedom of expression.

Consequently, because two indispensable procedural prerequisites—jurisdiction and standing—have not been satisfied, I consider that the petition should be denied with respect to the annulment of the health order and the related official letter. In other words, I do not rule on those acts; rather, I state that the examination of their alleged arbitrariness must be conducted in the contentious-administrative jurisdiction.

Different reasons for granting the petition with respect to the infringement of freedom of expression.

Before justifying my decision to partially grant the petition, I explain that—even though the challenged acts cannot be reviewed in this proceeding—under the principle of iura novit curia, other acts reflected in the factual framework may indeed be reviewed. Moreover, because the analysis reveals direct infringements of freedom of expression, the petitioners do have standing to participate in these proceedings.

First, I set forth the reasons why I consider that no violation of Article 13.3 ACHR occurred. I analyze the case law cited in the judgment, from both the Inter-American Court of Human Rights and the Constitutional Chamber, and show that it instead confirms my position. I then discuss certain scenarios that did not arise in the present case, but whose examination makes it possible to reflect on the issue under discussion. There, I emphasize that all indications are that proving the economic dependence of the newspaper La Nación on Parque Viva would not have been sufficient to establish an infringement of freedom of expression.

Finally, after examining the evidence submitted and the facts that are public and notorious, and pursuant to the applicable rules and case law, I find and declare that Mr. Nombre138 Nombre01 violated freedom of expression through statements that constituted direct, express, albeit limited, censorship (censura) concerning the persons involved (the petitioners) and the content (what was communicated).

Final considerations regarding the case file and the judgment. These confirm what is stated in the dissenting opinion, in which I maintain that the amparo proceeding was not the proceeding in which the challenged subject matter should have been reviewed. Specifically, I address the dilemma between turning an amparo petition into an ordinary proceeding and deciding it without all the necessary elements (evidence and parties), as well as the implications of having chosen the second option. I also discuss the consequences of annulling the challenged acts and their possible impact on matters of public health and safety. Finally, I offer some comments regarding the scope of the award of damages ?enforcement of which may be sought only by the petitioners and is confined to the declared infringement of freedom of expression, not to the corporate group that owns the media outlet where they work?. Nevertheless, this judgment gives that group the opportunity to bring plenary proceedings (proceso de conocimiento) for State liability, in which, starting from the declaration of nullity of those acts made in a summary proceeding, it need only demonstrate the causal link between those acts and the damages it alleges.

Brief analysis of the procedural elements of the present matter Type of proceeding This is an amparo proceeding, one of the proceedings heard by the Constitutional Chamber, established under Articles 48 of the Political Constitution and 29 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional, LJC).

Parties Petitioners The petitioners are: Nombre01, Nombre121 Nombre122, Nombre04, Nombre05, Nombre06, Nombre07, Nombre08, Nombre09, Nombre123, Nombre124, Nombre12, Nombre13, and Nombre14. All are reportedly journalists and members of the editorial staff of the newspaper La Nación.

Respondents The respondents are: Nombre15, in his capacity as president Nombre01 Nombre125, in her capacity as Minister of Health.

Challenged subject matter According to the petition, the challenged subject matter is health order MS-DRRSCN-DARSA2-OS-0368-2022 and, by connection, official letter MS-DRRSCN-DARSA2-1724-2022. This is clearly evident from the prayer for relief (petitoria), in which they request that “this amparo petition be granted, the temporary suspension of Parque Viva’s sanitary operating permit be annulled, and the administrative acts ordering it be annulled.” Protected interest The petitioners state the following:

“The arbitrary actions (…) constitute a gross misuse of power (desviación de poder) intended to violate our right to freedom of expression and the right of Costa Ricans to receive information and opinions on matters of public interest, in accordance with Article 29 of the Political Constitution and Article 13.3 of the American Constitution on Human Rights” (petition, p. 1).

In other words, they consider that the respondents’ actions infringe freedom of expression through indirect means.

They also contend that those same actions violate the principle of legality (principio de legalidad) and the principle of equality (principio de igualdad), established, respectively, in Articles 11 and 33 of the Political Constitution.

Admissibility and standing The petitioners believe that the action should be admitted because the administrative acts infringe the aforementioned rights and principles. That is, they consider the act arbitrary because it violates the principle of legality (principio de legalidad) and the principle of equality (principio de igualdad), and constitutes a violation of the petitioners’ own freedom of expression and Costa Ricans’ right to information. In this regard, they state:

“The administrative acts used to exercise indirect or covert censorship through economic pressure related to the media outlet where we work lack any technical basis and pursue no legitimate purpose, but rather constitute retaliation for the newspaper’s critical editorial stance and an attempt to silence it” (ibid.).

They then assert:

“The unlawfulness of indirect pressure on journalists has been addressed in the case law of the Inter-American Court of Human Rights” (ibid.).

They then cite several cases decided by the Inter-American Court of Human Rights (IACtHR) and immediately state:

“In this context, the action we are filing is admissible, and we therefore request that the Chamber proceed with it accordingly. Indeed, the actions taken by the respondent officials (…) constitute an evident instance of misuse of power (desviación de poder) (…). The particular and special and extraordinary nature of the case is that it is not merely a matter of legality or ordinary legality—that is, a mere statutory violation that may consequently be heard in the corresponding ordinary jurisdiction—but rather that the misuse of power in this specific case is the instrument devised to infringe our fundamental rights and freedoms directly and immediately, and capable of pribid., p. 2).

That is, they underst In this regard, they state the following:

“If that case is mistakenly regarded as an issue thibid.).

In other words, they reiterate that this is not a matter of legality and put forward another argument: if this constitutional protection action (recurso de amparo) were rejected, their right to judicial protection (tutela judicial) would be infringed.

Furthermore, to demonstrate the connection between the challenged acts and the alleged infringements of freedom of expression, they first argue the [1][2][3] “It could not be more evide[4][5][6]ibid., p. 4).

They then explain the subjects that, in the petitioners’ view, displeased the respondent herein and state what is central to this matter:

“In every case, these were serious, well-documented, and entirely pertinent journalistic publications. Failing to publish them would have directly affected citizens’ right to be informed about matters of public interest and, at that specific time, the principle of the informed voter. As a consequence of fulfilling that duty and exercising that right, the directors, our journalistic contributors, and we ourselves were warned that the structures enabling us to practice independent journalism would be destroyed.

Parque Viva is one such structure in the case of Grupo Nación. It was created precisely to diversify the company’s sources of revenue and offset the loss of income experienced by media outlets worldwide because advertising migrated to Internet giants such as Google and Facebook. That fact is public and has appeared in various statements by the company and its representatives since at least 2013. In the report to shareholders for the 2013-2014 period, available on the nación.com website at https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html, the executive presidency stated: ‘…changes in the industry, media consumption, and the domestic competitive environment will continue to challenge the print-media business. Aware of that outlook, two years ago we devised a strategy to address it. While the new initiatives mature, particularly in the digital sphere, every news outlet will require a supplementary source of income that is less dependent on advertising revenue. Consequently, as we announced last year, we invested substantial resources and effort in creating Parque Viva in La Guácima de Alajuela’” (ibid., p. 4; emphasis not in the original).

They thus explain the connection between Parque Viva and the newspaper La Nación, noting that the former is a source of revenue for the latter. On that basis, they argue that the health order (orden sanitaria), by preventing Parque Viva from operating, deprives the newspaper of financial support, and they therefore believe that the act infringes freedom of expression.

That is, they understand that the health order must be classified among “any other means intended to impede the communication and circulation of ideas and opinions” (Article 13.3 ACHR), since its ultimate purpose was to infringe freedom of expression, in the context of threats made by Mr. Nombre51, first during the electoral campaign, then as the elected Nombre138, and also while holding office.

Relief sought In their prayer for relief, the petitioners address three matters. First, as stated above, they request that the health order be annulled. Second, they ask the Chamber to “order Nombre138 Nombre01 and the Minister of Health to refrain from carrying out acts intended to infringe, directly or indirectly, the freedom of expression enjoyed by us, the petitioners, as by every Costa Rican citizen.” Finally, they stated: “We expressly waive any request for an award of damages, losses, and costs.” Factual framework Without seeking to replace the list of facts set forth in the judgment, it is appropriate to provide a brief account of the factual framework of the dispute (litis) in order to offer context facilitating a proper understanding of the partial dissenting opinion (voto salvado parcial) and the differing reasons.

Many are matters of public and notorious knowledge, and all are supported by documentary evidence in the case file.

1-. Grupo Nación has two business units relevant to the analysis of this specific case: the newspaper La Nación, obviously connected with journalistic activity, and Parque Viva, which is devoted to entertainment activities. This venue, located in La Guácima de Alajuela, held health permits for events.

1. 2On January 29, 2022, during the presidential election campaign, the current Nombre138 Nombre01 made the following statements:

“We are going to bring about the destruction of the corrupt structures of La Nación and Canal 7. Listen to me, Nombre16; listen to me, the other (...) Nombre17, lis

1. 3The petitioners in these proceedings are journalists for La Nación.
2. 4Complaint: In connection with the large-scale events held at Parque Viva, news reports had been published concerning traffic gridlock in the area. In addition, on July 5, 2022, an anonymous complaint was filed with the authorities of the Ministry of Health, alleging dangers arising from that gridlock, particularly the difficulties faced by emergency-response services in [7]Preliminary reports: A technical opinion was requested from the senior MOPT officials regarding the matter; a physical health inspection was conducted at Parque Viva; technical reports were prepared; and a meeting was held by the Technical Advisory Committee on Mass Gatherings—composed of the Minister of Health as coordinator, the Minister of Public Works and Transportation, and officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System, and the Ministry of Health’s Risk Management office.
3. 5On July 6, 2022, during a press conference, Nombre138 Nombre01 was asked for his opinion regarding the CCSS matter and the request made to the General Superintendency of Securities (Sugeval) concerning the bonds issued by Grupo Nación. In response, he said that there was a very serious issue concerning those bonds, which previous administrations had purchased. He indicated that he was concerned about the group’s ability to repay them because of its financial results and the diversion of assets, which, in his view, weakened the likelihood that the people of Costa Rica would recover those substantial resources.
4. 6On July 7, 2022, the executive director of Grupo Nación provided extensive public explanations and mentioned Parque Viva’s role in Grupo Nación’s cash flow.
5. 7Health order. The authorities of the Alajuela 2 Health Governing Area of the Ministry of Health issued health order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022—served that same day—which provided as follows:

“In response to anonymous complaint N° 243-2022, forwarded (sic) through official letter MS-DM-5756-2022 from the Office of the Minister of Health, concerning apparent structural problems, failures to comply with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in visual inspection report MS-DRRSCN-DARSA2-1639-2022, on July 05, 2022, at 13:50 hours, the respective on-site visit was conducted to assess the matters stated in the complaint. Likewise, in accordance with the precautionary principle (principio precautorio) and in response to the following official letters: MS-DM5814-2022, transmitting Technical Report DVT-DGIT-2022-339 issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transportation; and official letter MS-DM-5838-2022, transmitting Minutes N°28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings, this administrative act hereby orders the temporary suspension of Health Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting and cultural events, fairs, and various exhibitions) until the technical opinions issued by the Meritorious Fire Department of Nombre140 of Costa Rica and the Meritorious Costa Rican Red Cross concerning the ability of those institutions’ first-response units to use the access road to that establishment are available for analysis and for the corresponding measures to be taken; those opinions are currently being requested by the Ministry of Health.

Likewise, your principal must submit a remedial plan addressing the solution to the access problems and the resulting risk to Public Safety and Health posed by Mass-Gathering Activities and by the occurrence of a potential emergency during those activities.”

1. 8Related official letter. After obtaining the technical opinions of the director of the Fire Department of Nombre140 and the president of the Costa Rican Red Cross, official letter MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, was issued, whereby the director of the Alajuela 2 Health Governing Area informed Parque Viva’s legal representative that, as a follow-up to the provisions of the health order, technical reports CBCR-027150-2022-OPB-00741 of the Fire Department, CRC-GG-SO-OF-074-2022 and CRC-GG-OF-012-2022 of the Costa Rican Red Cross, 911-DI-2022-2202 of the 9-1-1 Emergency System, and DM-2022-3121 of the Ministry of Public Works and Transportation (MOPT) were being transmitted. Additionally, the following was decided:

“Once those documents had been reviewed and analyzed in accordance with the citation order, it was established that they indicate the existence of a clear problem in responding to emergencies (traffic accidents, structural fires, medical cases, among others) by First Response Agencies, both in the surrounding communities and for attendees themselves at the mass-gathering events held at Parque Viva, due to traffic and access problems at the site; therefore, in accordance with the precautionary principle (principio precautorio) and in order to ensure compliance with Articles 21 and 50 of the Political Constitution (Constitución Política), Articles 11, 152, 153 and 154 of the General Public Administration Law (Ley General de la Administración Pública), and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 and 364 of the General Health Law (Ley General de Salud), Public Health Order (Orden Sanitaria) MS-DRRSCN-DARSA2-OS-0386-2022 is hereby upheld in all its terms and scope.”

1. 9On July 13, 2022, at a press conference, the President referred to the reaction of Nombre03 and the newspaper La Nación regarding the closure of Parque Viva.

10. On July 20, 2022, at a press conference, Mr. Nombre138 identified, among the reasons for canceling the electric train plan, the existence of a branch line that passes through Parque Viva.

IV. Partial dissenting opinion

I partially dissented because I believe that the Sala Constitucional should not have ruled on the challenged administrative acts (actos administrativos) (the public health order and the related official letter), because the case under review does not satisfy the procedural prerequisites (presupuestos procesales) that must be established before this judicial body in every constitutional protection proceeding (recurso de amparo).

To develop my arguments, I will refer to the procedural stages of every constitutional protection proceeding that is decided on the merits.

Admissibility stage: procedural prerequisites For a constitutional protection proceeding to pass the admissibility stage, the Sala Constitucional must verify three elements: the formal requirements of the petition, its jurisdiction to hear the matter, and the parties’ standing.

Formal aspects of the filing First, it must be determined whether the filing satisfies certain minimum conditions. Because a constitutional protection proceeding is an informal proceeding, these are very few: the names of the petitioners and respondents, the facts, the challenged subject matter (objeto impugnado) (the act, omission, or material act (vía de hecho) being challenged), the protected subject matter (objeto protegido) (the fundamental rights or civil liberties allegedly infringed, which are what the Sala would protect), the evidence, and the relief sought. In fact, the essential requirements are to identify the petitioner, recount the facts, and provide a minimum evidentiary basis. The court may infer everything else or, if it has doubts, may issue a cure order (prevención) (an order requiring clarification of whatever it considers necessary), in accordance with Article 42 of the LJC.

The jurisdiction of the body The Sala must then determine whether it has jurisdiction to hear the matter. Jurisdiction depends on several elements: the challenged subject matter, the protected subject matter, the nature of the injury, and the nature of the proceeding.

• a)The protected subject matter: fundamental rights First, it must ascertain that the protected subject matter—that is, the rights alleged to have been violated—consists of those addressed by Article 48 of the Political Constitution and Article 2 of the LJC. As noted in the preceding section, the petitioners allege violations of freedom of expression and equality.
• b)The challenged subject matter: the allegedly harmful conduct Furthermore, in the case of a proceeding against public officials, such as the one examined here, the Sala must determine whether the conduct attributed to the respondent falls within Article 29 of the LJC, which provides:

Article 29. The constitutional protection proceeding safeguards the fundamental rights and freedoms referred to in this law, except those protected through habeas corpus.

The proceeding may be brought against any provision, agreement, or decision and, in general, against any action, omission, or mere physical act not based on an effective administrative act, by public officials and bodies, that has violated, violates, or threatens to violate any such right.

Constitutional protection shall be available not only against arbitrary acts, but also against actions or omissions based on rules and In the present case, prima facie, the Sala has jurisdiction to review the public health order and the related official letter that the petitioners seek to have annulled, because they are provisions issued by public officials and are alleged to have violated fundamental rights and freedoms safeguarded through the constitutional protection proceeding. Nevertheless, as will be discussed in detail below, in the vast majority of cases the Sala ordinarily dismisses at the outset constitutional protection proceedings against public health orders, asserting that their consideration [8] c) The nature of the injury According to well-established and consistent case law, another condition for admitting a constitutional protection proceeding is that a direct injury to the fundamental right or civil liberty allegedly infringed must be asserted.

From the very beginning of its history, that Sala stated:

“Under sound constitutional doctrine, the criterion is based on the premise that any violation of legality in matters related to those rights may eventually cause injury to those right[9][10][11] Another judgment deserves quotation because, in addition to reiterating that 1990 precedent, it states:

“It must be noted that the availability of the constitutional protection proceeding is generally conditioned not only on proof of the existence of an interference—or threat thereof—with one or more of the rights or guarantees contemplated in the Political Charter, or with fundamental rights established in international human-rights instruments signed and duly incorporated into the legal system, but also on the alleged grievance constituting a direct and gross threat to or violation of those rights, endangering that part of their content that is essential and inherent to them—that is, the core that gives them their distinctive character and makes them recognizable as rights of a particular nature. In this regard, constitutional case law has specified that the issue of direct and indirect violations of the Constitution also necessarily involves assessing the suitability and expeditious nature that must characterize the constitutional protection procedure (…). For those reasons, the constitutional protection proceeding may not be used to review the legality of acts by the various Public Administrations, since constitutional protection is a summary proceeding conducted through simple and expedited procedures, which are incompatible with extensive and technically complex disputes” (Judgment 2020-12053; emphasis not in the original).

It should be noted that the Sala states that the constitutional protection proceeding is suitable only for reviewing direct injuries, not indirect ones, because of the summary nature of that proceeding. That is precisely why it is important to pause and analyze the d) The nature of the proceeding The body’s jurisdiction is also determined by adherence to the nature of the proceeding.

Not every act, omission, or material act originating from an authority, even if independently challengeable, may be reviewed in a summary and informal proceeding. The reasons may vary: the legal or technical complexity of the act, the need for an extensive evidentiary record to determine its validity and effectiveness, and so forth. There is case la[12] Likewise, the court must determine whether the protected subject matter (the fundamental rights allegedly infringed) can in fact be safeguarded through a constitutional protection proceeding, which is summary and informal. There is extremely consistent case law on this issue, which the Sala also routinely cites.

It was precisely in this regard that I joined Justice Nombre126 in a note that we reiterated on many occasions:

“IV.- NOTE BY JUSTICES Nombre126 AND No[13] This is so because many matters certainly involve fundamental rights but must be heard in the appropriate forum. For example, if a person claims to have been defrauded in the purchase and sale of a lot, there can be no doubt—if that was indeed the case—that their right has been violated and that it is a fundamental right. It is the right recognized in Article 45 of the Political Constitution; but it is clear that the dispute concerning that matter is not for the Sala C[14] The foregoing means that, for a case to be examined and resolved in a constitutional protection proceeding, it is not enough to assert that the alleged injury to a fundamental right was caused by conduct of the respondent. The Sala endeavors to adhere to those criteria precisely so as not to encroach upon the jurisdiction of the ordinary courts (established in Articles 49 and 153 of the Political Constitution) or that of the administrative authorities, as applicable.

But that is not the only reason: by assigning the matter to the proper forum, the parties will have all the procedural safeguards inherent in due process, which are reduced in a summary and informal proceeding such as constitutional protection. Thus, for example, because reports from the authorities are submitted under oath, they are deemed true, and the opportunities to rebut them are therefore far more limited than in full proceedings.

The Sala must therefore determine whether, in light of the challenged subject matter (the allegedly harmful acts), the protected subject matter (the fundamental rights allegedly infringed), and the type of injury (whether the effect is direct), the matter is capable of being heard in a summary proceeding such as constitutional protection.

That said, the question arises whether the present proceeding should have been admitted. Everything seems to indicate that this was not a public health order concerning a simple matter but, on the contrary, one of great complexity that could hardly be analyzed in a summary proceeding. Nevertheless, as the judgment correctly states, the Sala Constitucional has left open a narrow possibility of admitting constitutional protection proceedings against public health orders and, indeed, has exceptionally allowed them to proceed. It could therefore be thought that, in view of the magnitude of the alleged grievance and the status of the alleged wrongdoer and, why not, the status of the persons allegedly aggrieved, the case was of particular significance. It could thus reasonably be understood to possess the conditions necessary to be treated as an exception to the established line of case law. Accordingly, the doubt as to whether the challenged subject matter could be reviewed in this forum through a summary proceeding was resolved in favor of the petitioners at the preliminary stage, and not only at this stage.

The parties’ capacity and standing Third, the Sala must determine whether the petitioner has procedural capacity and standing. As to capacity, because this is an informal proceeding, every natural person capable of rational judgment and every duly represented legal entity possesses it. In the present case, the petitioners are natural persons who clearly have legal capacity to act. As to standing to bring the proceeding (legitimación activa), it may be said that standing is universal under the Costa Rican legal system: every person has it, provided that they allege a violation of their own or another person’s fundamental right. This is so because Article 48 of the Political Constitution says “every person,” and because every (natural) person, by virtue of being one, has fundamental rightprima facie, the petitioners have standing to seek constitutional protection because they allege an injury to freedom of expression, which is recognized “by the Political Constitution and (…) International Law in force in Costa Rica” (Article 2 of the LJC). Nevertheless, once again, it is appropriate to ask whether they in fact have standing, because it must be recalled that they seek the annulment of –.

Now, it could be argued that this margin of[15][16] * Once that admissibility stage has been completed, as is known, the presiding judge issues an order to proceed, and the evidentiary phase of the proceeding begins so that the matter may be heard on the merits.

Merits stage: aspects to consider and reconsider General considerations To hear the matter on the merits, upon Nevertheless, that is neither the only nor even the first thing the Chamber must do; rather, it must undertake to clarify[17][18][19] First, it must ascertain that it has jurisdiction, and therefore it must assess—now with even greater rigor and with all the element[20] Final verification of certain procedural prerequisites (presupuestos procesales) In the present case, as I have said, it was understood that, prima facie, those prerequisites had been met; however, as I have noted, reasonable doubts arise as to whether their fulfillment can truly be regarded as established. I will therefore immediately analyze two aspects that, in my opinion, should be examined again: the challenged act (objeto impugnado) and active standing (legitimación activa).

• a)The challenged act: the health order (orden sanitaria) and the related official communication (oficio conexo) What matters is determining whether t The health order and the related official communication In addition to the videos they submitted, the petitioners attached to their initial filing a series of official communications and publications as documentary evidence (prueba documental):

“Notice of the temporary suspension of Parque Viva’s health operating permit dated July 8, 2022; report by the Ministry of Health inspectors, dated July 5; approval of the capacity limits issued by the Ministry of Health on December 16, 2021, and expansion of the [21] In addition to the challenged acts, the respondents also submitted other documents:

The complaint; the official communication forwarding the complaint to the Área Rectora de Salud Central Norte; several news articles reporting on the traffic problems that arise when events are held at Parque Viva; inspection record n.°MS-DRRSCN-DARSA2-1639-2022; official communication n.°MS-DRRSCN-DARSA”-1641-2022 de 5 de julio, which is a follow-up report on the environmental complaint; official communication n.°DVT-DGIT-2022-339, signed by Eng. Nombre27, an official of the Dirección General de Ingeniería de Tránsito; minutes of the July 7, 2022 session of the Comité Asesor Técnico de Concentraciones Masivas; health order n.°MS-DRRSCN-DARSA2-OS-0368-2022; technical report n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, signed by Mr. Nombre29, Deputy Operations Manager of the Cruz Roja Costarricense; technical report n.°CBCR-027150-2022-OPOB-00741 del 10 de julio de 2022, signed by Mr. Nombre31, of Operaciones de Nombre140 del Benemérito Cuerpo de Bomberos; report n.°CRC-GG-OF-012-2022 del 12 de julio de 2022, signed by Mr. Nombre30, General Manager of the Asociación Cruz Roja Costarricense; report n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, signed by Mr. Nombre29, Deputy Operations Manager of the Cruz Roja Costarricense; and report n.°911-DI-2022-2202 del 11 de julio 2022, signed by Nombre32 of the Sistema de Emergencias 911.

Added to those were the documents later submitted by the petitioners:

“Official statement from the Municipalidad de Alajuela refuting the INVU (Evidence #1). Notarial certification of land-use authorizations (usos de suelo) # MA-ACC-U-01335-2013, de fecha 18 de junio de 2013, for the construction of a hotel and food-service facility, # MA-ACC-U-01334-2013, de fecha 18 de junio de 2013, for the construction of an amphitheater and exhibition center, # MA-ACC-U-01336-2013, de fecha 18 de junio de 2013, for the construction of fairgrounds, # MA-ACC-U-00817-2013. de fecha 16 de abril de 2013, for the construction of parking facilities, fairgrounds, and a convention center. (see Evidence #2, first item). Resolution numero 3088-2013 de Nombre178. Proyecto Mejoras al Autódromo La Guácima. (see Evidence #4). Official communication DGIT-ED-5935-2014 del 01 de diciembre del 2014, in which the Dirección General de ingeniería de Tránsito formally approves the traffic impact study (estudio de impacto vial) (see Evidence #5).

Notarial certification of the report on the verification of the authenticity of seals, by means of the QR code for the Obras de Infraestructura La Guácima project, issued by the Colegio Federado de Ingenieros y Arquitectos (see Evidence #2, second item). Copy of the sheet index for the construction plans of the project ‘Obras de Infraestructura la Guácima’ (see Evidence #3). Official communication CBCR-0018379-2014-INB-00736, fechado 16 de junio del 2014, in which the Benemérito Cuerpo de Nombre140 accepts the removal of fire hydrants and requests that minor defects be corrected. (See Evidence #6). Official communication DVT-DGIT-ED-2015-4056, in which the MOPT accepts completion of the road-improvement construction project and records its acceptance of the works. (see Evidence #7). Notarial certification of the Letter of Intent to reactivate rail services between Parque Viva (Guácima) and Incofer (see Evidence #8).

Notarial certification of pages 9 and 83 of the document ‘APPROVAL OF LOAN AGREEMENT N° 2241 BETWEEN THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA AND THE CENTRAL AMERICAN BANK FOR ECONOMIC INTEGRATION (CABEI) TO SUPPORT THE FINANCING OF THE PROJECT; CONSTRUCTION (EQUIPPING AND COMMISSIONING OF A RAPID PASSENGER TRAIN SYSTEM (TRP) IN THE GREATER METROPOLITAN AREA,’ published in Alcance No. 112 to La Gaceta No. 110, 14 de mayo del 2020 (see Evidence #2, third item). Notarial certification of La Nación editorials dated 25 y 26 de agosto de 2020 explaining the infamy concerning the alleged electric-train branch line. (See Evidence #9). Certification of the following news articles: Article entitled ‘Middle management keeps getting in the way,’ article entitled ‘Free-trade zone in Grecia to begin construction after being stalled for 24 months because access to Route 1 was denied,’ article entitled ‘Nombre139 attacks La Nación with distorted data,’ manifesto ‘We Defend Freedom of the Press,’ article by Nombre128 ‘How are Nombre51 and his actions similar to Nombre129 and his?’ (See Evidence #9).

Notarial certification of the response sent to the CCSS on lunes 8 de agosto del 2022, and its attached documents; response brief and relevant material fact dated 26 de junio. (see Evidence #10” (petitioners’ filing dated 17 de agosto de 2022, p. 13; paragraph breaks have been omitted).

This means that, when this matter was heard on the merits, the case file contained numerous official communications from widely differing authorities concerning a particularly complex issue.

In other words, this was not a health order like those issued to thousands of residents during the pandemic, many of which were challenged by filing writs of amparo (recursos de amparo) and which, incidentally, the Chamber systematically dismissed in the vast majority of cases. Those petitions alleged that the health order had infringed other rights: freedom of movement, freedom of commerce, the right to work, and so forth. The Chamber nevertheless found that they had to be dismissed as inadmissible, in accordance with a consistent body of case law concerning health orders, which I will discuss immediately below.

What bears emphasis now is that the challenged act (the order and the related official communication) not only has broad and complex effects in itself, but also that, to determine whether those acts were arbitrary, it was absolutely necessary, at a minimum, to analyze the documents submitted by the parties—and those documents were neither few nor simple, nor were they consistent with one another.

(2) The unsuitability of amparo: constitutional case law It is now appropriate to examine what this Chamber’s case law has said regarding the suitability of a writ of amparo for reviewing health orders. I will select a few of its very numerous decisions on this subject. I will first discuss the substantial body of case law issued from this Court’s earliest years, which runs throughout its history up to 2019, and then the case law issued during the pandemic caused by COVID-19. In addressing both periods, I will divide the judgments into those summarily dismissing petitions and those deciding the merits. Among the latter, I will make several observations about a case cited by the majority in the judgment, in which it was alleged that the challenged health order infringed freedom of expression.

(a) Case law in ordinary times As will be seen, in ordinary times the Chamber’s usual practice has been to summarily dismiss writs of amparo challenging health orders. Since its inception, the Constitutional Chamber has maintained an almost uninterrupted line of precedent holding that it is not its role to review the legality of health orders.

“SOLE: (…) Because the challenged act is based on Articles 356 and 363 of the Ley General de Salud and on the provisions of the Reglamento de Seguridad e Higiene Industrial, and because the petitioner had and exercised his right of defense through (sic) the administrative proceeding conducted for that purpose, the act becomes lawful from a constitutional standpoint; that is, it causes no constitutional violation whatsoever, leaving this Chamber unable to review any issues of ordinary legality that might arise from it—an aspect that, in any event, may be litigated through the corresponding ordinary proceeding. It is clarified, however, that the health authorities may not order the petitioner to demolish the structure unless they demonstrate that he is the owner, nor may they demolish it themselves unless they have first heard the owner of that property” (judgment 1991-1948; emphasis not in the original).

It has also stated that a writ of amparo is not the appropriate proceeding for assessing the advisability and legality of the order:

“[T]he petition seeks to have the Chamber examine the technical grounds on which the Ministry based the health order, which the petitioners characterize as unlawful and unjust. Because no violation of a fundamental right has been shown, and because this is not the appropriate proceeding for reviewing the advisability and legality of the action taken, the petition is inadmissible and must be summarily dismissed” (judgment 1992-856).

To the same effect, and likewise in summarily dismissing petitions, it has stated that other mechanisms already exist for challenging such orders, namely, ordinary administrative remedies (recursos administrativos ordinarios):

“The amparo, as may be inferred from the petitioner’s assertions, has no basis other than preventing an order to close the commercial activity in question. The Chamber has repeatedly held that health orders may be challenged through the ordinary remedies available in administrative proceedings, so that interested parties may demonstrate in that forum, through technical and expert evidence, that their activity does not fall within the circumstances addressed by the order. Accordingly, the petition is inadmissible in constitutional proceedings and, because it concerns a matter of legality, must be litigated in the appropriate forum” (judgment 1992-3056; emphasis not in the original).

It has further held that a health order does not constitute the final act of the proceeding and that, therefore, its issuance does not in itself entail a violation of due process (debido proceso):

“Regarding whether or not the health order (orden sanitaria) issued by the competent authorities of the Ministerio de Salud is warranted, neither the technical requirements set forth therein concerning noncompliance with physical and sanitary conditions nor the alleged lack of permits may be disputed in this forum, since, pursuant to the legislation in force and applicable, it is the authorities of the Ministerio de Salud that must ensure compliance with minimum requirements in commercial establishments, among others, on the basis of duly supported technical criteria. This Chamber has repeatedly held that health orders issued by health authorities in the exercise of their powers do not constitute the final act of an administrative proceeding (procedimiento administrativo) in which the affected parties have been given no opportunity to participate; on the contrary, they must be regarded as the initial act—the notice served on the affected parties to initiate the administrative proceeding—giving them an opportunity to review, examine, and challenge the technical studies supporting the order, submit exculpatory evidence, and propose alternative solutions to the problems detected by the authorities.

Likewise, they may challenge the order by filing motions for reconsideration and appeal (recurso de revocatoria y apelación), should they deem it appropriate—as the appellant has done. If the studies and evidence supporting the order were not disclosed to them, or if they were not given an opportunity to challenge it, this might potentially constitute a violation of due process (debido proceso) reviewable in this forum; however, that has not occurred in the case before us” (judgment 2000-11215).

It has further stated that the Chamber is neither an additional level of review in the administrative proceeding nor a reviewer of legality (contralor de legalidad).

“What the appellant has raised is nothing more than a dispute concerning ordinary legality (legalidad ordinaria), which falls outside the jurisdiction of this Chamber. First, as this Court has repeatedly held, a health order is the initial act of the administrative proceeding, from which point due process must be observed through the exercise of the available remedies, as the protected party (amparada) in fact did (folios 7 to 10). However, the ruling issued on that remedy by the Ministerio de Salud, pursuant to resolution DM-RC-9030-05 of fourteen hours thirty-one minutes on thirty-one October two thousand five, may not be challenged through this avenue, because the Chamber is neither an additional level of review within the administrative proceeding nor a reviewer of legality. Thus, if the appellant believes that her home is not uninhabitable and, consequently, that her eviction should not be ordered, and that the reports issued both by the Comisión Nacional de Emergencias and by the Ministerio de Salud itself—the latter concerning the field inspection conducted—are general and do not specifically address the circumstances of her case, this is not the forum in which she must present her arguments; she must instead do so before the respondent administration itself or, as appropriate, before the ordinary courts (jurisdicción ordinaria), since they—and not the Chamber—have jurisdiction to hear and rule on the matter” (judgment 2006-00773; emphasis not in the original).

In other words, it has understood that constitutional jurisdiction (jurisdicción constitucional) is not the appropriate forum in which to hear such matters. Accordingly, it has explained that the examination of health orders is incompatible with the summary nature of amparo proceedings (amparo):

“Moreover, because, as is apparent from the pleading initiating the action, the relief sought through the amparo action is to dispute in this forum the technical basis of the challenged administrative acts, the action is inadmissible, since any disagreement that may exist in this regard constitutes a dispute of mere legality (mera legalidad) that, by its nature, must be raised, debated, and resolved through administrative channels—as has occurred—or through contentious-administrative proceedings (vía contencioso administrativa) after exhaustion of the preceding stage. Furthermore, debating the content or basis of the challenged orders in this forum would entail reviewing within this jurisdiction the technical criteria used to reach the contested determination, which is not only beyond the scope of amparo proceedings but also exceeds their summary nature” (judgment 1997-2548, emphasis not in the original).

Following that reasoning, and incorporating many of the criteria mentioned above, it has also held that, if a person disagrees with a health order, in addition to pursuing administrative remedies (recursos administrativos), that person may resort to the ordinary courts so that the technical basis of the order may be assessed there, since doing so requires a substantial evidentiary stage (fase probatoria):

“II.- SPECIFIC CASE. This Chamber has repeatedly held that the health orders issued by the Ministerio de Salud—as occurred in this case—constitute precisely the initial act of the corresponding proceeding, through which the factual and legal grounds for such orders are communicated, from which point the person subject to the administration (administrado) may fully exercise the right of defense and challenge the administrative acts by means of the remedies and before the bodies provided for that purpose. Thus, in issuing the acts in question, the Administration was not required to observe due process, grant a prior hearing, or issue any prior warning to the amparo petitioner (amparado), because the exercise of the remedies indicated in the aforementioned resolutions supra allows the right of defense to be exercised and due process to be fulfilled. However, if the amparo petitioner disagrees that those health orders were warranted because he challenges their technical basis or the assessment of evidence (valoración probatoria) on which they are founded, this concerns a dispute of ordinary legality whose hearing and resolution fall outside the jurisdiction of this Chamber.

This is especially so because it entails an evidentiary and technical dispute whose resolution is incompatible with the eminently summary nature of an amparo action, a proceeding in which it is neither materially nor reasonably possible to engage in a complex evidentiary process or conduct lengthy and complicated evidentiary measures. In view of the foregoing, the action is inadmissible and must be so declared” (judgment 2015-001416; emphasis not in the original; identical considerations were reiterated in judgments 2016-9673, 2016-15956 and 2016-17176).

All the judgments cited thus far—which are merely examples, since these are very frequently reiterated lines of precedent—were issued to summarily dismiss the actions (rechazar de plano). In other words, they contain the arguments by which the Chamber explains why it does not address the merits of the matter.

However, admittedly on an exceptional basis, this Court has admitted amparo actions challenging health orders for processing, even though the line of precedent is likewise firmly established that the technical basis of a health order should be disputed through the ordinary legal channels. In the vast majority of cases, at that stage it denies the action on the merits, and in such cases it ordinarily reiterates many of the arguments stated in summary dismissals. I will now refer to several examples.

Thus, in one case it concluded that the right of defense had not been violated:

“II.- Regarding the[22]those considerations, this Chamber does not find that the appellant’s right of defense was violated” (judgment 2002-10129; emphasis not in the original).

It has also explained that a health order is not stayed by the filing of ordinary remedies and that this does not violate due process. Insofar as relevant, it stated the following:

“Furthermore, with respect to enforcement of the closure of the protected party’s commercial establishment, the Administration has the authority to enforce on its own, without resorting to the Courts, effective, valid, or voidable administrative acts, even against the will of the person subject to the administration. Therefore, the filing of remedies does not have suspensive effect (efecto suspensivo), unless the official who issued the act, that official’s hierarchical superior, the authority deciding the remedy, or the court hearing the dispute orders a stay of enforcement where enforcement may cause serious harm or harm that is difficult to remedy, or where the acts are ineffective or absolutely void (see Articles 146 et seq. of the Ley General de la Administración Pública). Moreover, Article 53 of the Ley Orgánica del Ministerio de Salud provides that the filing of remedies does not stay enforcement of the challenged act unless, in highly exceptional cases, in a rea It has held that it is not for the Chamber to question the legitimacy or content of the provisions adopted by the Ministerio de Salud regarding enforcement of health orders:

“It must be clarified that it is not for this Court to question the legitimacy or content of the provisions adopted by the Ministerio de Salud concerning time limits, extensions, and decisions on remedies related to the issuance of health orders, since that falls within its own jurisdic[23] Furthermore, it has stated that this Court lacks jurisdiction to hear the reasons for which the closure of a childcare center was ordered, reiterating that it is not for the Court, in an amparo action, to assess the technical basis of that decision:

“IV.- However, if the appellant disagrees with the administration’s action in revoking agreement 31-17-2012, which granted authorization to the childcare center "El Naranjito", on the ground that it does not meet the minimum required conditions, and instructed the Área Rectora to carry out the closure, that matter falls outside the jurisdiction of this Chamber, because the amparo action was established to protect against violations or imminent threats to persons’ fundamental rights and freedoms, not to review in the abstract the correct application of the law. Consequently, it is not for this forum to analyze the reasons of the respondent Council for ordering the challenged closure, which, as stated, falls within its powers, because the purview of this Chamber is limited to analyzing the challenged actions or omissions and comparing them with the legal system in order to determine whether the challenged conduct is legitimate or illegitimate; it may not, for that purpose, venture into scientific or technical fields, given the summary nature of amparo proceedings, in which it is neither materially nor reasonably possible to engage in a complex evidentiary process or an analysis of facts extending beyond the challenged acts themselves, but rather must remain confined to the factual hypotheses on which those acts are based.

Therefore, those matters must be heard, debated, and resolved within the administrative proceeding itself; once that proceeding has concluded, if the protected party believes that the decision concluding the administrative proceeding is contrary to law, she may challenge it in the contentious-administrative courts so that the propriety of the actions ordered by the respondent bodies may be determined there” (judgment 2014-2423, emphasis not in the original).

As can be seen, these are examples of judgments that decide the merits and deny the action, almost always invoking the same grounds ordinarily stated in summary dismissals.

(b) Case Law During the Pandemic The case law handed down by this Chamber during the pandemic caused by COVID-19 warrants particular attention. Especially during the periods of greatest restrictions, numerous amparo actions (recursos de amparo) were filed challenging health orders (órdenes sanitarias) on the grounds that they infringed the right to work and freedom of commerce (for example, by requiring commercial establishments to close). These were cases of great importance, because the limitation on the exercise of those rights had serious consequences for the many Costa Rican families who, overnight, saw the source of income on which they depended for their subsistence significantly reduced—if not eliminated. Other actions challenged vehicular health restrictions and provisions on the use of face masks. Health orders were also challenged on the grounds that they infringed rights not in the financial sphere, but in one that was more personal and no less important: for example, infringement of freedom of worship and violation of the rights of persons deprived of liberty to receive conjugal visits and visits from their other family members were alleged. In all those cases, it could be said, the Chamber was unyielding and consistent, as will now be demonstrated through a small number of judgments that provide a highly illustrative sample of what has just been stated.

Thus, regarding an amparo action challenging a health order that directed the closure of a commercial business—the potential source of employment and financial support for the families of its owners and employees who depended on the operation of that establishment—the Chamber stated that consideration of the matter exceeded the summary nature of amparo proceedings and summarily dismissed the action:

“II.- THE SPECIFIC CASE. In the sub judice matter, the appellant should note that it is not appropriate to determine in summary amparo proceedings whether the events that occurred are true, whether one or another set of health regulations applies to his commercial establishment, or whether the closure was warranted; likewise, it is not for the Chamber to determine whether the fine was appropriate. In other words, it is not for this Court to act as an appellate jurisdiction in this area and review whether the decision to order and enforce that closure was consistent with the facts and the applicable subconstitutional regulations, much less to usurp the powers of the respondent health authority and, after verifying compliance with the applicable statutory and regulatory requirements, order the challenged acts annulled, as the appellant seeks, since these are matters of ordinary legality (legalidad ordinaria) that must be resolved through the ordinary administrative or judicial channels.

Accordingly, the foregoing constitutes a matter of ordinary legality that exceeds the fundamentally summary nature of an amparo action. Therefore, the appellant, if he so wishes, must submit his objections or claims to the respondent authority or through the competent judicial channel, forums in which he may fully argue the merits of the matter and assert his claims. Consequently, the action is unfounded and must be so declared” (judgment 2021-3603; very similar considerations were reiterated in judgment 2022-3545).

It ruled in the same manner on another of many occasions when, in summarily dismissing the amparo actions, it stated that acts of this kind must be heard through ordinary channels:

“He contends that health order R1-b11-001-2020 directed the closure of his business. He adds that police authorities appeared at the commercial establishment and closed it because alcoholic beverages were allegedly being consumed inside the establishment, which he disputes. He considers it unreasonable that police authorities who are not officials of the Ministry of Health closed the business by means of a health order due to the alleged violation of Decreto Ejecutivo 42227-MP-S, issued in connection with the COVID-19 coronavirus pandemic. (…)

In the sub lite matter, the Chamber observes that the issue raised by the appellant is nothing more than a dispute concerning ordinary legality and does not constitute a violation of fundamental rights of sufficient magnitude to justify the intervention of this jurisdiction. Indeed, it is not for this Court to assess, under the subconstitutional regulations governing the matter, whether the aforementioned health order was warranted, nor to determine whether the alleged violation occurred. Furthermore, the Chamber notes that the issuance of a health order constitutes the initial act in the corresponding proceeding. Thus, upon notification of such an order, the person subject to the administrative action (administrado) may fully exercise the right of defense, either by challenging the administrative act (acto administrativo) before the bodies established for that purpose—at which time that person may submit any evidence considered relevant and present any arguments deemed appropriate—or by taking any other steps considered pertinent in exercising that defense. (…) In view of the foregoing, the action is dismissed” (judgment 2020-7165; emphasis not in the original; to the same effect, see judgment 2020-7626 and 2020-7934).

The gradual reopening measures ordered by the Ministry of Health were also challenged in the context of the pandemic. For example, the owners of several gyms alleged that their right to equality, right to work, and freedom of commerce had been infringed, and the Chamber ruled as follows:

“I.- Subject matter of the action. The appellants, who own gyms located in the GAM, allege inconsistency in the selection of the commercial establishments that the government, in the context of the covid 19 pandemic, permitted to reopen as of 10 de agosto de 2020. They state that the respondent authorized beauty salons, aesthetic centers, and swimming clubs to reopen, but not gyms, even though gyms conduct similar activities ‘and even safer ones than those that were permitted.’ (…) They argue that the restriction promotes unfair competition because users are going to gyms located in yellow zones since those in orange zones remain closed; this also undermines containment of the virus because people from different areas are intermingling. They consider that the newly commenced reopening phase results in discriminatory treatment and violates their right to work and freedom of commerce. They request authorization to resume activities focused on physical maintenance and conditioning.

II.The specific case. As may be inferred, the claims of the protected party concern matters that exceed the jurisdiction of this Constitutional Court, which is called upon to remedy egregious violations of fundamental rights, not to serve as a general-purpose mechanism for channeling other types of petitions and grievances. In this regard, this Constitutional Court does not oversee the legality of the actions or decisions of the respondent authorities, nor may it replace the active Administration in the exercise of its powers. It therefore cannot usurp the authority legally conferred upon other agencies or bodies, such as the Ministry of Health, which exercises governing authority over matters relating to the protection of public health and, by virtue thereof, has the power and duty to order the technical measures it deems useful and necessary in the context of the current pandemic. The technical appropriateness of such measures is not a matter to be analyzed in summary amparo proceedings; rather, if the appellant so wishes, the relevant grievances must be raised through the competent ordinary legal proceedings” (judgment 2020-15420; emphasis not in the original).

Similarly, the Chamber declined to hear claims concerning alleged restrictions on freedom of worship. For example, it held as follows:

“The appellant expresses disagreement with the measures adopted by Presidencia Nombre01 and the Ministry of Health in responding to the pandemic caused by COVID-19 because, in the appellant’s view, they are discriminatory. The appellant considers that the protocols and protective measures proposed by the Conferencia Episcopal should be adopted and places of free worship immediately reopened (…). [T]hrough amparo proceedings, this Chamber may not usurp the powers of the Ministry of Health authorities in order to determine whether the claims made by the appellant are warranted under public-health policies, because these are matters requiring the weighing of technical, medical-scientific, and expediency and advisability criteria. Such issues, by their nature and complexity, must be resolved through ordinary administrative or judicial channels and not in this forum. Consequently, the action is inadmissible and is hereby so declared” (judgment 2020-9093; emphasis not in the original).

Additionally, this Court noted that the alleged infringement of freedom of worship would have to be raised and resolved in the ordinary forums:

“In this regard, the challenged health restrictions apply, prima facie, to all temples and churches—regardless of the religion or denomination to which they belong—in view of the nature of the activity and the gathering or influx of persons who attend it, because the matter at issue here is the protection of the right to health and life during a public-health emergency, all of which takes precedence over other considerations. This does not reveal, at least on a preliminary basis and without prejudice to evidence to the contrary, any desire to harm religious activities in order deliberately to impair freedom of worship. Therefore, this matter should properly be resolved through ordinary administrative or judicial channels. Accordingly, if the protected party so wishes, it must submit its objections or claims through the competent ordinary legal proceedings, since that is the forum in which it may fully argue the merits of the matter and assert its claims. Consequently, the action is inadmissible and is hereby so declared” (judgment 2020-9570; emphasis not in the original).

It should be noted that this meant—as in the other cases discussed here—that, although the Chamber understood that a fundamental freedom or right might be implicated, it considered ordinary legal proceedings to be the proper channel for hearing the matter.

On other occasions, it denied the action on the merits, for example, when vehicular health restrictions were at issue. In this regard, the following judgment is illustrative: echoing several precedents, it rejected the alleged illegitimacy of the restriction on freedom of movement and concluded:

“Following that line of reasoning, the Chamber considers the holdings of the judgments cited in the preceding paragraphs fully applicable to the case under review. Those judgments reject the existence of any infringement of constitutional rights because the State has the authority to regulate vehicular traffic in a special manner within a particular area or zone in order to give precedence to a public interest. It should be noted that, by virtue of this public interest, the State is authorized to establish certain special rules governing vehicular traffic in pursuit of the welfare and common good of the people. (…).

In summary, in the case under examination, the petitioner’s claim centers on the same fact discussed in the precedents cited above, namely, the vehicular restriction imposed by the central government. From that perspective, given that this claim closely resembles matters already heard and decided by this Court, and considering that there is no reason to change the position previously expressed by the Chamber, the writ of amparo (recurso de amparo) must be dismissed on the merits, as is hereby declared (judgment 2020-6917; emphasis not in the original; similarly, see judgments 2020-7538 and 2020-9509).

Regarding the health directive (disposición sanitaria) requiring the use of face masks, the Chamber declared that it was not in a position to assess the technical health criteria supporting it:

“ON THE ADMISSIBILITY OF THIS WRIT. In the case at hand (sub lite), the petitioner alleges that the measure requiring everyone to wear a face mask to control the coronavirus epidemic in Costa Rica is discriminatory and violates the right to equality because it is unreasonable and disproportionate. (…) In view of the foregoing, he is advised that the challenged determinations are based on technical health criteria and considerations of expediency and advisability that the Chamber is not in a position to assess” (judgment 2020-12551; emphasis not in the original).

Nevertheless, during the pandemic it did admit for consideration other amparo proceedings challenging health orders (órdenes sanitarias).

One of them was unusual in that it involved not only the closure of a commercial establishment but also the detention of a person for failure to comply with health restrictions; in deciding the case on the merits, the Chamber stated that it was not its role to rule on whether the health order was warranted:

“The petitioner considers her fundamental rights to have been violated because she owns Restaurante Malibu No. 2, which holds a restaurant business license (patente), and Fuerza Pública and Policía Municipal officers, who appeared at that establishment on April 1, 2020, closed the commercial establishment and unlawfully deprived her of her liberty for allegedly having violated a health order (…). In this case, the Court observes that the deprivation of the protected party’s liberty, carried out at 20:08 on April 1, 2020, was conducted pursuant to paragraph 235(a) of the Código Procesal Penal, because the Fuerza Pública officers considered that the petitioner had been caught in flagrante delicto (flagrante delito) by allowing liquor to be consumed at the bar of the aforementioned commercial establishment, contrary to the health measures adopted in response to the COVID-19 coronavirus pandemic. (…) Thus, in the case at hand, there is no indication that the protected party was unlawfully apprehended during the initial processing of the case, since the legal system provides for the possibility of apprehending a person when that person is caught in flagrante delicto or committing a petty offense (contravención). Therefore, the writ must be denied.

Furthermore, the protected party requests the removal of the closure seals affixed to the commercial establishment she owns. However, it is not for this Court to assess, under the subconstitutional rules (normativa infraconstitucional) governing the matter, whether the aforementioned health order was warranted, or to determine whether the alleged violation occurred. Moreover, it should be noted that the corresponding proceeding begins with the issuance of a health order” (judgment 2020-8302; emphasis not in the original).

It also agreed to hear allegations raised by persons deprived of liberty. However, in ruling on the merits, it likewise declined to consider the grievances concerning the suspension of prison visits and found that the dispute over those health directives should not be heard in this forum:

“[T]he respondent authority reports under oath—having been warned of the consequences, including criminal consequences, provided for in article 44 of the Law governing this Jurisdiction—that all types of visits to penitentiary facilities are currently suspended as a preventive measure in connection with the pandemic caused by COVID-19, and that this directive was communicated to the entire population deprived of liberty, who were informed that the procedures would remain suspended until they could be carried out. With regard to the suspension of the benefit, this Court has held that the suspension in question is a provisional measure, implemented in compliance with orders issued jointly by the health and penitentiary authorities, in respect of which it is not the role of this Chamber to act as a court of ordinary legality (instancia de legalidad) and, on that basis, to assess the technical criteria used to determine whether that measure was warranted” (judgment 2021-14529; emphasis not in the original; identically, see judgment 2020-10317).

Similarly, with respect to a health order directing the closure of Depósito Libre de Golfito, the Chamber reiterated that it is not an additional level of review within the various administrative and judicial proceedings and therefore lacks jurisdiction to hear the merits of these types of matters:

“In light of the circumstances described, it is first necessary to inform the petitioner that the Sala Constitucional does not have jurisdiction to act as an additional level of review within the various administrative or judicial proceedings involving private parties. In this specific case, the petitioner seeks to have this Court review the ordered eviction because, in his view, it is unwarranted, given that he claims to have worked in the Plazoleta del Depósito Libre de Golfito for more than twenty years. However, that claim expressly seeks to challenge in this forum matters that fall to the ordinary courts (jurisdicción ordinaria) to resolve, whether at the administrative or judicial level, since it is there that, after evaluating the evidence, it may be determined who has the superior right to the property. In this case, it was established that the petitioner does not hold a municipal business license issued by the Municipalidad de Golfito to engage in stationary vending, nor does he have a permit from the Ministerio de Salud.

Indeed, it could not even be established that he was one of the persons evicted, as indicated by the reports submitted under oath. In any event, according to the sworn statements, those affected by the eviction complied with the health order without objection. Accordingly, because this jurisdiction lacks authority to analyze the merits of the matter presented, the petitioner must pursue his dispute through the ordinary judicial process, after exhausting the administrative stage, and therefore the only appropriate course is to dismiss the writ, as is hereby ordered” (judgment 2020-12161; emphasis not in the original).

It should be noted in passing that, in this and the other judgments just cited, after admitting the cases for consideration, the Chamber stated at this stage that it was not its role to decide the merits and dismissed the writ; but the writ was not dismissed because the Chamber found that the petitioner was wrong, but because it determined that this Court could not rule on the merits in an amparo proceeding. In other words, with more information before it, it said what it ordinarily states when denying admission.

Likewise, on another occasion the Chamber reiterated that these types of health measures—because they are issued by the Ministerio de Salud in the exercise of its own authority—should not be analyzed by the constitutional jurisdiction (jurisdicción constitucional) to determine the reasons underlying the measure. This was also because the health order initiates the administrative proceeding (procedimiento administrativo), meaning that, as of its notification, the parties may challenge its basis and exercise their right of defense:

“As is clear from the judgment cited above, the closure order issued by the Administration is precisely the act that marks the commencement of the proceeding; therefore, from the moment the closure order is issued, due process (debido proceso) must be strictly observed in all subsequent actions. As explained above, due process was duly observed in the case at hand because the petitioner was notified of the health order and was informed therein of the available remedies and the authority before which they could be filed, so that he could proceed accordingly.

Likewise, because these are measures established by administrative bodies under powers vested in them, it is outside the scope of the constitutional jurisdiction to analyze or determine whether there are reasons that motivated their issuance. Consequently, any dispute concerning whether they are warranted, viable, or of appropriate duration falls outside the jurisdiction of this Court (see, to this effect, judgment No. 2006-9685, at 13:17 on July 7, 2006).

Accordingly, the appropriate course is to deny the writ with respect to this claim, as is hereby ordered, because it has been established that the protected party was afforded the due process applicable in such cases and was informed how he could proceed, should he wish to do so, to challenge the actions of which he complains” (judgment 2021-7471; emphasis not in the original).

Thus, although during the pandemic the Chamber admitted several amparo proceedings challenging health orders, in deciding them it reiterated its longstanding case law (jurisprudencia).

(c) The case of Nombre107 The precedent deciding a writ of amparo filed on behalf of presidential pre-candidate Nombre107 warrants particular attention. It was filed in the context of the pandemic and was admitted for consideration, but it is especially relevant because an infringement of his freedom of expression was alleged and because, in the judgment deciding the present case, the majority invokes this precedent to illustrate an instance in which this Chamber did examine the legitimacy of a health order. It is necessary to clarify, however, that in that matter the Chamber’s majority did not actually examine the legitimacy of the health order or the alleged unlawful restriction of Mr. Nombre130’s freedom of expression. The majority granted the writ because it found that there had been an evidentiary deficiency attributable to the respondents, who neither preserved nor submitted to the Chamber the videos of the protected party’s statements that had prompted the issuance of the health order. The Chamber did not assess the legitimacy of the restriction in light of the statements made by Mr. Nombre130. Indeed, the majority pointed out that the Ministerio de Salud could properly impose restrictions of this type if a threat to public health had been established. In this regard, it ruled as follows:

“[T]he videos on which the challenged health order was based are not in the administrative record (expediente administrativo), a circumstance attributable solely to the Administration. This prevents the protected party from challenging which statements may have prompted the State’s response and thus from defending himself. Now, as with any procedural burden (carga procesal), the party that fails to satisfy it—in the matter under examination (sub examine), the State—must bear the procedural consequences of its omission.

The Chamber explains to the respondent authority that, when a person is accused of the improper exercise of freedom of expression and restrictions are imposed on that right, there must inexorably be certainty as to the reasons for such exceptional measures, which may be imposed only in the cases permitted under the constitutional and conventional framework. It reiterates that freedom of expression is essential to sustaining democracy and therefore constitutes a cardinal aspect of our political system; consequently, any restriction on it must not only have an adequate basis in positive law, whether in domestic legislation or within the framework of international human rights law, but the competent authority is also required to fully establish the factual grounds on which it is based.

Given the summary nature of the amparo proceeding (proceso de amparo), the Chamber likewise could not assume an inquisitorial role and investigate which videos might ultimately have provided grounds for the State’s actions, particularly because such activity would be intended to remedy the omissions of the State authorities, which conflicts with its nature as a Court that defends the individual against the State.

Finally, the Chamber notes that the foregoing would not have precluded a different assessment if it had been established that the petitioner’s statements endangered people’s health and the Administration’s actions had been based on precise and well-founded reasoning under positive law. The Chamber reaffirms that the respondent Ministry may and must safeguard public health” (judgment 2021-1515; emphasis not in the original).

Thus, because of the evidentiary particularities of that case—or rather, because of the absence of evidence—the appeal was granted. It bears reiterating, however, that the judgment did not address the content of the health order (orden sanitaria). Accordingly, contrary to what the judgment states, I very respectfully consider that it is not a good example with which to illustrate the majority’s position. On that occasion, moreover, Justice Nombre92 and I dissented, on the basis of the case law that has consistently held that health orders are not subject to an amparo appeal (recurso de amparo) (see the dissenting opinion in judgment 2021-1515).

* A review of the case law supports the conclusion that the Constitutional Chamber has historically been very rigorous and restrictive in hearing amparo appeals challenging health orders, even when it has been alleged that they result in violations of highly significant fundamental rights and freedoms. In doing so, it has relied on public-health protection legislation, which, as a matter of principle, legitimizes the conduct of the Ministry of Health authorities; it has found that it is not its role to review the technical basis of the decision because this involves highly complex evidentiary matters that are not properly resolved in a summary proceeding such as amparo; and it has stated that a health order is the initial act in an administrative proceeding (procedimiento administrativo), such that its formal service activates the appeal mechanisms available both within the administrative forum itself and before the contentious-administrative courts, the appropriate avenue for reviewing the legality of administrative action.

Thus, to remain consistent with those firmly established lines of case law, the Chamber should likewise have denied this amparo appeal. Furthermore, as stated above, if this Court has declined to entertain other amparo appeals alleging that the challenged health orders violated other fundamental rights and freedoms of the utmost importance in the lives of individuals and communities—the right to work, freedom of trade, freedom of worship, and freedom of movement—it is difficult to find sufficient justification for departing from those lines in this particular case.

One final consideration should be made regarding an issue that has been taken for granted: On what basis has the Chamber issued that case law if, as also noted, Article 29 of the LJC does not expressly exclude health orders from the administrative acts (actos administrativos) that may be challenged through amparo?

The answer is as follows: First, on the basis of Article 7 of the LJC, which, by virtue of the Chamber’s status as a constitutional court, grants it jurisdiction to define—that is, specify and delimit—its own jurisdiction. Second, by virtue of Article 9 of the LJC, which permits it to summarily dismiss an appeal when it is manifestly inadmissible, or to dismiss it on the merits when precedents exist. Note that if, as the provision states, it may dismiss an appeal on the merits at any time, then a fortiori—and indeed this is what it does, as has been shown—it may also dismiss an appeal as inadmissible at any time. Third, on the basis of respect for the nature of the proceeding and for the provisions of Articles 48 and 153 of the Political Constitution. And not only for that reason, but also because Article 48 did not nullify Article 49 of the same Constitution. This is precisely what must now be examined.

(3) The suitability of contentious-administrative proceedings It is appropriate to explain why the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa) is the prescribed and appropriate forum for proper consideration of this matter.

(a) Constitutional provision for review of the Administration It should be noted that this constitutional case law on health orders, which originated during the early years of the Chamber’s history and had been reinforced over more than three decades, does not hold that these administrative acts are inherently lawful and must remain exempt from review. In that regard, the Chamber has consistently held that it is for the ordinary courts to conduct a legality review (análisis de legalidad) to determine whether the health order was issued in accordance with law. Indeed, it was precisely for that purpose that the Constituent Assembly established the contentious-administrative jurisdiction as a function of the Judiciary, with the aim of ensuring the legality of the State’s administrative action. Moreover, it is clear that compliance with such legality can and often does affect the sphere of fundamental rights, not only property rights. The Constitution states:

Article 49.—The contentious-administrative jurisdiction is hereby established as a function of the Judiciary, with the aim of ensuring the legality of the administrative action of the State, its institutions, and every other public-law entity.

Misuse of powers (desviación de poder) shall constitute grounds for challenging administrative acts.

The law shall protect, at a minimum, the subjective rights (derechos subjetivos) and legitimate interests (intereses legítimos) of persons subject to the Administration.

From the content of that article, the Chamber has derived the principle “Today, the entirety of Public Law scholarship recognizes the principle of judicial review of administrative action (revisión jurisdiccional de la función administrativa), that is, that any specific manifestation of administrative action may and must be reviewed before an instancThis principle, in certain constitutions, such as that of Costa Rica, is simultaneously expressed as an individual guarantee or fundamental right; thus, Article 49 of the Constitution establishes the contentious-administrative jurisdiction[24][25][26] (…). This Constitutional Court has emphasized the constitutional status of the principle of judicial review of administrative action and the fundamental right to obtain effective judicial protection (tutela judicial efectiva) against administrative conduct that infringes the body of legality (bloque de legalidad); thus, in Voto No. 9928-2010 (…) it held as follows:

?IV.—CONSTITUTIONAL REGULATION OF THE CONTENTIOUS-ADMINISTRATIVE JURISDICTION AND THE CONSTITUTIONAL ASSIGNMENT OF JURISDICTION. The original constituent authority and the amending authority undertook to define the subject-matter jurisdiction and, consequently, the scope and reach of two jurisdictions essential to the Social and Democratic State Governed by the Rule of Law. Indeed, Articles 10 and 48 establish the subject-matter jurisdiction of the constitutional courts, while Article 49 establishes that of the contentious-administrative courts. The foregoing clearly demonstrates the importance that the original constituent authority and the amending authority placed on both constitutional and legality review of public authorities, in order to guarantee the effective enjoyment and exercise of the fundamental and human rights enshrined, respectively, in the constitutional text and in instruments of Public International Law. There can be no doubt that these constitutional provisions embody what legal scholarship has called the paramount clause of the Constitutional State Governed by the Rule of Law. As specifically concerns the contentious-administrative jurisdiction, Article 49 of the Constitution, following the partial amendment (…) of 1963, provides as follows: (…) From the verbatim text of the constitutional provision, the following should be emphasized:

1°) The derivative constituent authority, or amending authority, chose a “judicial” model of administrative justice, that is, it entrusted a specialized branch of the Judiciary with the jurisdiction and authority to review the legality of administrative action—in other words, its substantive conformity or compliance with the body of legality. This system offers litigants considerable safeguards and comparative advantages, such as specialization, which, together with the judicial career structure established at the subconstitutional level, constitutes a genuine guarantee of sound adjudication and compliance with the constitutional mandate contained in Article 41 of the Constitution requiring “full justice (…).

5°) The derivative constituent authority chose a mixed system of administrative justice because the first paragraph, in defining the purpose of the contentious-administrative judicial system—“to ensure the legality of administrative action”—must inevitably be read together with the final paragraph, which provides that the law shall afford protection, at a minimum, to subjective rights and legitimate interests—without distinguishing among the latter, thereby permitting protection of personal as well as collective interests, whether corporate or diffuse. Consequently, under Constitutional Law, the contentious-administrative jurisdiction was established both to safeguard the legality of administrative action and to provide effective protection for the substantive legal positions (situaciones jurídicas sustanciales) of persons subject to the Administration vis-à-vis public authorities. Thus, the Constitution combines an objective and a subjective role for the contentious-administrative jurisdiction’” (judgment 2013-04491; emphasis not in the original).

The prescribed avenue for reviewing administrative acts such as those challenged here is therefore the contentious-administrative avenue. It is now appropriate to consider what is examined in that forum.

(b) Scope of review in the ordinary courts If the challenged subject matter here (the health order and the related official letter) had been submitted for review in the contentious-administrative jurisdiction (vía contencioso-administrativa), the validity requirements would have been assessed, that is, the substantive elements: both the subjective elements—jurisdiction, standing, and lawful appointment—and the objective elements—grounds, content, and purpose—as well as the formal elements—statement of reasons, procedure used, and forms through which the act was manifested. The effectiveness requirements—proper notice—would also have been analyzed. Furthermore, it should be borne in mind that, in this specific case, it is alleged that there was a misuse of authority (desviación de poder), and therefore it was precisely necessary to examine the grounds, content, and basis of the administrative acts (actos administrativos) in light of the General Law of Public Administration (Ley General de la Administración Pública, LGAP), which, insofar as relevant, provides as follows:

Article 132.

1. The content must be lawful, possible, clear, and precise, and must encompass all factual and legal issues arising from the grounds, even if they have not been debated by the interested parties.

2. It must also be proportionate to the legal purpose and correspond to the grounds, where both are regulated.

3. Where the grounds are not regulated, the content must be regulated, even if imprecisely.

4. Its adaptation to the purpose may be achieved through the discretionary inclusion of conditions, terms, and modes, provided that, in addition to satisfying the characteristics of the content indicated above, the latter are legally compatible with its regulated component.

Article 133.

1. The grounds must be lawful and must exist as they were taken into account in issuing the act.

2. Where the grounds are not regulated, they must be proportionate to the content; where they are regulated imprecisely, they must reasonably conform to the indeterminate concepts used by the legal system.” (Emphasis not in the original.)

To assess those elements and to be able to conclude, with proper support, that the administrative acts were arbitrary, it was essential to examine the basis of the health order and, therefore, the extensive technical evidence submitted, originating from severa That analysis, necessary to reach the conclusion that the administrative act was allegedly null and void, undoubtedly exceeds the naturasee the Chamber’s unbroken line of decisions, at least from judgment 1997-2943 through the recent judgments 2018-0787, 2019-16757, 2022-7145 and 2022-10379, among others).

In this specific case, as stated, a full analysis of the technical evidence was essential in order to assess the administrative conduct of the various parties involved—which did not[27][28][29] Ultimately, because the appellants challenged the basis of the disputed administrative acts, the respondents asserted that those acts were based on technical criteria, and the Chamber was able to confirm that the matter was inherently highly technical and complex, what was appropriate at this adjudicative stage (at which the merits were supposedly to be addressed) was to reiterate the well-established constitutional case law and, in view of the nature of the amparo proceeding (recurso de amparo), dismiss the application insofar as it sought to annul the disputed acts.

This brings us to one of the key points of this opinion. It has already been stated that, prima facie, the application satisfies the basic procedural prerequisites for admission; however, it does not satisfy the final requirement explained above: analysis of the challenged subject matter is inconsistent with the nature of the proceeding. In other words, the matter being challenged (the health order and the related official letter), although alleged to be arbitrary and harmful to fundamental rights and freedoms, is not a matter for the Constitutional Chamber to hear in an amparo proceeding because a full and fair assessment of it exceeds the summary nature of this proceeding.

But the contentious-administrative jurisdiction is not only the forum established to hear this type of matter, particularly in view of the complexity and scope of the acts challenged in this case; it is also a forum offering multiple advantages, as will now be explained.

(c) Advantages of the ordinary jurisdiction First, standing (legitimación) is even broader under Article 10 of the Contentious-Administrative Procedure Code (Código Procesal Contencioso-Administrativo, CPCA), because persons claiming impairment of legitimate interests or subjective rights may bring an action and may request a declaration, recognition, or restoration of a legal situation, with or without monetary compensation.

The appellants argue, however, that if the Constitutional Chamber had not admitted this amparo, their right to judicial protection would have been infringed.

Although standing will be discussed in greater detail under a later heading, it is worth quoting their words again and analyzing them in light of the issue now under consideration:

“If this case were mistakenly regarded as a matter that must be heard in the ordinary courts because it concerns an issue of legality, journalists would be denied access to judicial protection, because we would lack standing to challenge the facts described here in the contentious-administrative jurisdiction since, as these are indirect attacks on freedom of expression and of the press, the challenged administrative acts are not directed against us but instead infringe our rights indirectly. Thus, at most, we could participate as supporting intervenors (coadyuvantes) in an ordinary action, always subject to the fate of the principal party and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional jurisdiction that protects our right to practice journalism freely is the only suitable means of defending ourselves against the abuses that the respondents indirectly deploy against us” (application, p. 2; emphasis not in the original).

Those assertions depart from the provisions of the CPCA because, as shown, the appellants here could have filed an action challenging the health order and the related official letter, alleging that those administrative acts infringed their freedom of expression and of the press. There was and is no obstacle to doing so: neither because of the challenged subject matter (the health order and the related official letter), nor because of the protected subject matter (the rights and freedoms allegedly violated), nor because of standing (which could even have been based on legitimate interests).

They would therefore have had standing to defend not only constitutional rights but also statutory rights; not only personal rights but also property rights; not only subjective rights but also legitimate interests. Moreover—and this is especially relevant to the case before us—they could allege not only direct harm but also indirect and consequential harm to any subjective right or legitimate interest.

Second, in accordance w, it is unnecessary to exhaust administrative remedies (agotar vía administrativa) before resorting to the contentious-administrative jurisdiction, just as this is not required to file an amparo proceeding under Article 31 of the LJC. The appellants could therefore readily have resorted to that jurisdiction, just as they resorted to the Chamber, without waiting to learn the decision on the appeal filed by the company that owns the property.

Third, the contentious-administrative jurisdiction has broad powers to[30] Article 19. 1) During the proceeding or the enforcement stage, the respective court or judge may, at a party’s request, order suitable and necessary interim measures (medidas cautelares) to provisionally protect and safeguard the subject matter of the proceeding and the effectiveness of the judgment. 2) Such measures may also be adopted by the respective court or judge, at a party’s request, before the proceeding has commenced.

Furthermore, the judicial body exercising this interim-relief jurisdiction has broad discretion to impose various types of obligations on the parties and to supervise compliance with them:

“Article 20.- Interim measures may preserve the existing state of affairs or may have anticipatory or innovative effects through the provisional regulation or satisfaction of a substantive factual or legal situation. Through such measures, the respective court or judge may provisionally impose on any party to the proceeding obligations to act, refrain from acting, or give. // If the measure involves affirmative administrative conduct or omissions containing discretionary elements, or defects in the exercise of discretion, it shall be subject to the provisions of Article 128 of this Code.” Accordingly, the contentious-administrative judge is even empowered to tailor the suspension of the challenged act by determining whether it applies fully or partially and, in the latter case, whether conditions are imposed. For example, the judge could have specified that the suspension did not apply to the holding of sporti events The appellants could allege serious current or potential damage or harm arising from the acts that , and the judicial body was required to conduct a balancing assessment, considering the public interest, the interests of third parties, and the rights that the respondents claim to protect (the life, health, and physical integrity of the property’s users and its neighbors).

Regarding proceedings for interim relief, the rules establish short time limits while also providing suitable conditions for the body to have all the elements[31] This interim-relief jurisdiction not only has high-quality statutory provisions, but also[32] Another readily apparent advantage of the contentious-administrative jurisdiction, especially when hearing a non-summary proceeding, is that it offers the possibility of an exhaustive examination of every kind of evidence under Article 82 of CPCA.

The procedural advantages and guarantees offered by the contentious-administrative jurisdiction for hearing a matter such as this do not end there. If the principal objection is its delay, Article 69 of the CPCA provides a solution that helps avoid it: designation for expedited processing (trámite preferente), which establishes much shorter time limits and mechanisms to accelerate the proceeding.

It should be noted that this is not a solution for suspending the effects of the act, because interim relief would serve that purpose, but rather for resolving the dispute more swiftly. Thus, notwithstanding its complexity, the matter could readily have proceeded to judgment within a reasonable time precisely because—in view of the challenged subject matter, its repercussions, and the rights sought to be protected—there was a clear possibility that it would receive expedited processing.

• b)Standing Having determined that there were sufficient grounds to conclude that the merits of this application should not have been adjudicated, because amparo was not a suitable means of determining whether the challenged acts should be annulled, it is appropriate to analyze whether the appellants truly had standing.

(1) Framework of the issue As I have stated, Article 48 of the Political Constitution establishes universal standing, and this is reflected in Article 33 of the LJC, which states that “any person mayany perso But, of course, this follows from the logic that, if it is inte In the present amparo proceeding, however, we face an atypical case because the appellants claim to have standingchallenge administrative acts that do not apply to them, but rather to a property owned by a company belonging to the same corporate group that owns the newspaper for which they work.

The Thus, although, because of those provisio “…as these are indirect attacks on freedom of expression and of the pre[33][34][35][36] Thus, the cla[37][38][39] (2) Regarding the argument that they would have standing only before the Chamber The petitioners not only maintain that they have standing (legitimación) to seek constitutional relief (amparo), but even go so far as to assert that they have standing only here, before the Chamber, because in the ordinary courts they could only participate as supporting parties (coadyuvantes), and freedom of expression, which is what they seek to have protected, could not be guaranteed:

“If that case is mistakenly considered a matter that must be heard in the ordinary courts because it concerns an issue of legality, journalists would be denied access to judicial protection, because we would lack standing to challenge the facts described herein before the contentious-administrative courts (sede contencioso administrativa), since, as these are indirect attacks on freedom of expression and of the press, the challenged administrative acts are not directed against us, but instead infringe our rights indirectly. Thus, at most, we could participate as supporting parties in an ordinary action, always dependent on the outcome for the principal party and with limited scope, particularly regarding freedom of expression, which is our fundamental concern. The constitutional jurisdiction that protects our right to practice journalism freely is the only suitable means of defending ourselves against the abuses that the respondents indirectly wield against us” (ibid., p. 2; emphasis not in the original).

In my judgment, two objections may be raised regarding these assertions. The first, as already noted, is that they seem unaware that in the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa) the petitioners would indeed have even broader standing, because under Article 10.1 of the CPCA they could allege not only an individual right (derecho subjetivo), but also a legitimate interest (interés legítimo). The second is that they overlook the fact that the Chamber is not the only body capable of protecting fundamental rights. To say otherwise—to understand that the Chamber is the only forum that can guarantee those rights—would be tantamount to maintaining that the ordinary courts protect only property and statutory rights. At bottom, it would amount to asserting that the Constitutional Chamber holds a monopoly over the protection of fundamental rights, when in fact it holds only a monopoly over the protection of fundamental rights through a constitutional relief proceeding. I will now explain what I have stated in this brief summary.

Fundamental rights were not recognized only when the Constitutional Chamber was created; rather, by hearing constitutional relief proceedings, the Chamber has enabled those rights to be guaranteed with great effectiveness and promptness. What other judicial avenues exist for protecting fundamental rights? The ordinary avenues provided for in Articles 153 and 49 of the Political Constitution, cited above. Indeed, I believe it was not without reason that the Constituent Assembly intended that provision, together with Article 48—which is devoted to constitutional relief proceedings and habeas corpus—should conclude Title IV, entitled “Individual Guarantees,” thereby underscoring that this title establishes not only substantive fundamental rights, but also the mechanisms for their judicial protection.

The Chamber protects fundamental rights (except for personal liberty and integrity, which it hears through habeas corpus) by means of the constitutional relief proceeding, which is an expeditious and effective avenue; and only the Chamber has jurisdiction to hear that proceeding provided for in Article 48 of the Political Constitution. But it is certainly not the only forum in which fundamental rights are protected. If it were said that ordinary judges do not protect fundamental rights, we would be asserting that they apply only statutes and regulations. On the contrary, ordinary judges are among those primarily called upon to safeguard and enforce individuals’ fundamental rights. Moreover, through its own case law and, often, in light of statutory reforms providing other avenues, the Chamber itself has gradually delegated to other bodies the hearing of matters that were previously heard only through constitutional relief proceedings. That is why I have said that the Chamber does not have a “monopoly” over the protection of fundamental rights.

In addition to having standing to act as plaintiffs, alleging the violation of individual rights and legitimate interests, they could also have sought the corresponding restitution and compensation. All pursuant to the previously cited Article 10 of the CPCA.

It was not necessary for the company itself to file an action in the contentious-administrative courts. They themselves could have resorted to that avenue to protect freedom of expression by alleging, as they do here, that the administrative acts are arbitrary, constitute a misuse of power (desviación de poder), and entail an infringement of that freedom. As I see it, this is precisely why, had the Chamber dismissed the present constitutional relief proceeding, the admissibility of a petition filed by the petitioners before the Inter-American Commission on Human Rights, with a view to subsequently bringing the matter before the Inter-American Court of Human Rights, would have encountered a serious obstacle, because the re had not been exhausted, nor could Article 46.2 of that Convention have been invoked. Unfortunately, an analysis of this interesting issue exceeds the scope of this dissenting opinion (voto salvado).

Now, having said this: that the petitioners would have standing to resort to the contentious-administrative courts even if the company for which they work had not done so; that they could be plaintiffs, not merely supporting parties; and that in that forum they would be protected not only as to individual rights (in this case, freedom of ex[40] (3) The petitioners’ arguments concerning the basis for standing The petitioners argue that there is a connection between the challenged subject matter (the health order and the related official communication) and the interest they seek to protect (their freedom of expression). This is despite the fact that those acts concern real property that neither belongs to the newspaper nor is devoted to anything related to the journalism business.

But on what do they base that connection? On the assertion that the acts are motivated, not fo.

“The administrative acts used to impose indirect or covert censorship through economic pressure related to the media outlet where we work lack any technical basis and pursue no legitimate purpose, but instead constitute retaliation for the newspaper’s critical editorial stance and an attempt to silence it” (ibid., p. 1).

The petitioners allege that the harmful actions by Nombre138 Nombre01 proceed in two directions: casting doubt on the financial soundness Nombre03 and the closure of Parque[41] “It is worth noting that no financial authority has expressed the same doubts, Grupo Nación retains its ‘A’ rating, and the company’s assets are twice its liabilities. The financial statements are public because Grupo Nación is listed on the stock exchange, and they show that the resources necessary to pay the next maturity have been set aside” (ibid., p. 5).

They reproduce statements made by Mr. Nombre138 at a press conference:

“?ibid., p. 5).

They refer to the fact that Mr. Nombre138 urged the Caja Costarricense de Seguro Social to request information from Nombre02 regarding Grupo Nación’s ability to pay:

“As is clear, the spectacle had no purpose other than to harm Grupo Nación by casting doubt on its finances, in order to curtail our freedom of expression, because ?the customary practice of institutional investors’ is to consult the issuer directly and rely on information published as required by law.

Nev[42][43]ibid., p. 6).

They allege that those statements were unlawful in light of judgments of the Inter-American Court of Human Rights and, specifically, contend:

“In our case, as is publicly and widely known, in addition to the constant use of the word ?scoundrel,’ an insult intended to delegitimize, intimi” (ibid., p. 6).

In their argument, all the foregoing appears intended to provide context for the second course of conduct that they consider harmful: the closure of Parque Viva, carried out through the challenged acts.

“In the act[44][45]These acts not only economically affect the company that owns Parque Viva, but also the news outlet where we work and, consequently, infringe our right to report the news. This is the true purpose pursued by the administrative acts against which I seek constitutional relief” (ibid., p. 7; emphasis not in the original).

In the same vein, they add:

If there is anything the community celebrates, it is that the government’s misuse of power shed light on a long-standing problem that is not resolved by the arbitrary administrative acts identified in this proceeding. The ineffectiveness of those acts undermines their purported public purpose and demonstrates that their sole purpose is to affect the finances Nombre03 in retaliation for the free practice of journalism by us, the petitioners, and to attempt to silence us in the future, as the President promised” (ibid., p. 13; emphasis not in the original).

They then add a passage consistent with those just quoted:

“The legality of the actions described must be disputed by whoever has standing to do so in the appropriate jurisdiction, but, together with Nombre04’s campaign promise, the arbitrary actions identified leave no doubt as to the persecutory purpose directed against the newspaper where we work and their retaliatory nature, involving misuse of power against its news and editorial stance and seriously infringing the right to freedom of expression. Of course, the pressure placed on the company’s finances jeopardizes the future practice of journalism and invites accommodations that would compromise it” (ibid., p. 14; emphasis not in the original).

In a filing submitted after the report provided by Nombre138 Nombre01, the petitioners similarly state:

“?As for Grupo, Mr. Nombre138 and the Minister of Health use compliance with their duty as a pretext to carry out the purpose of silencing us that was expressed during the election campaign and duly documented” (petitioners’ filing dated August 17, p. 9; emphasis not in the original).

Previously, they had referred to the origin of that relationship between the newspaper La Nación and Parque Viva, which is worth quoting again:

“Parque Viva is one of those structures [that allow us to practice independent journalism], in the case of Grup[46], such as Google and Facebook. That fact is public and is reflected in various statements by the company and its representatives since at least 2013. In the report to shareholders for the 2013-2014 period, available on the nación.com webpage at https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html, the executive presidency stated: ‘…changes in the industry, in media consumption, and in the domestic competitive environment will continue to challenge the print-media business. Aware of that landscape, two years ago we designed a strategy to address it. While the new initiatives mature, particularly in the digital sphere, every journalistic outlet will require a supplementary source of revenue that is less dependent on the stream of advertising revenue. Consequently, as we announced last year, we invested significant resources and efforts in creating Parque Viva in La Guácima de Alajuela’” (initial filing, p. 4; emphasis not in the original).

As can be seen, this paragraph discusses the connection, but does not establish dependency: it refers only to the rationale for the decision to venture into another line of business.

The petitioners present no data showing when the alleged dependency began or what percentage it represents. In other words, they provide no evidence establishing a direct and unequivocal relationship that would support the conclusion, beyond any doubt, that the sustainability of the newspaper La Nación depends on Parque Viva.

Indeed, they make only an analytical reference to Grupo Nación’s financial statements when asserting its ability to pay, and explain that assets far exceed liabilities, which is in fact reflected in the 2020-2021 audited consolidated financial statements report. In 2020: assets 68.883.898, liabilities 27.661.566. In 2021: assets 68.555.759 and liabilities 28.288.573.

In a subsequent filing, they do quote the words of executive director Nombre03, in which he explains the expectations regarding Parque Viva:

“It is worth noting that, on the day after the conference on the bonds, Grupo Nación’s executive director, Nombre37, provided extensive public explanations and mentioned Parque Viva’s role in the company’s cash flow. One day later, the government abruptly shut down Parque Viva.

Nombre150 stated, among other things: ‘It is said that La Nación only continues to incur losses. It is very important to distinguish between an accounting loss and cash-flow generation. We are carrying accounting losses, that is true, but we are generating cash flow. This means that, between operations and financial investments, we are generating sufficient cash flow to pay the debt, pay all interest, pay for all investments and, in addition, we are saving to meet future maturities. That can be seen in our financial statements, which are public,’ Nombre150 stated, adding: ‘Parque Viva has been shut down for two years (because of the pandemic). Therefore, the figures we have been reporting, in which cash flow has been positive, are with Parque Viva closed. Since March 2022, Parque Viva has been operating; it will begin generating cash flow and contributing to the cash flow we were already generating. Thus, this year’s figures will look much better than last year’s. We believe that this will be the trend from now through 2025.’ (See attached evidence). The next day, Parque Viva was shut down. (See publication ‘Nombre139 attacks La Nación with distorted data’)” (Filing by the petitioners dated August 17, p. 9).

It is therefore now relevant to examine whether the judgment adequately substantiates that dependence, which would be the basis of the standing (legitimación) that allows the petitioners validly to file an amparo proceeding (amparo) seeking the annulment of acts that are not directed against them.

(4) The judgment’s considerations regarding dependence In fact, the judgment does not properly address the issue of standing. It takes such dependence for granted, using arguments that merely seek to explain several phenomena that I do not dispute and that are, in themselves, matters of public and common knowledge, without any real bearing on proving that dependence in this specific case.

First, the phenomenon of print-media readers migrating to digital formats:

“traditional media, primarily print media, have suffered a sharp economic decline in recent years with the advent of the internet, the fall in advertising investment, and its migration to the major digital platforms” (judgment, recital VIII).

That is indisputable, but it is useful only to illustrate the context in which the newspaper La Nación and all news media operate.

Secon[47] “In view of the foregoing, the media have found it necessary to innovate and seek new formats, proposals, or mechanisms for obtaining new revenue (and audiences) that, in turn, make it possible to finance journalism and the media outlet as such, particularly investigative journalism, which is costly. In other words, new commercial strategies have had to be implemented or mixed models put into operation in order to ‘make media outlets profitable,’ as some have called it. So much so that many media outlets today do not earn money from their principal or traditional activity, but from other activities that enable them to survive” (ibid.).

It acknowledges that these efforts have proceeded in several directions: innovating and seeking new formats, and using other revenue mechanisms that make it possible to finance journalism. Grupo Nación’s investment in acquiring and launching Parque Viva would fall within this latter type of effort, since they understand that “many media outlets today do not earn money from their principal or traditional activity, but from other activities that enable them to survive.” Up to this point, the only thing that can be established clearly is that the original business unit Nombre03 (the newspaper) needs the new business unit (Parque Viva). But, like the petitioners, the judgment does not attempt to show to what extent or in what manner that dependence exists.

The judgment then states:

“By way of example, modern media outlets have resorted, among others, to the following formulas or strategies: a) some print media have created their own digital platforms and introduced subscription models, or what has been called ‘pay-per-view’; a formula successfully used by major media outlets such as The New York Times or The Guardian. b) They have resorted to creating higher-quality and exclusive content (on specific topics of interest to certain sectors), making it attractive to seek out and access such content. c) Podcasts have been used (a series of episodes on various topics recorded as audio and broadcast online, as used, for example, by The New York Times through its program The Daily). d) The organization of events, forums, or conferences on particular topics involving experts and prominent figures has been promoted, with fees in turn being charged for participation or admission (the Texas Tribune and The Economist have become known for organizing events of this kind). e) They also resort to selling pieces to third parties (major media outlets, taking advantage of their extensive experience and structural support, cover certain specialized information, process it, and sell it to others, including their own competitors). f) The so-called Brand licenser has been used, allowing media outlets to license their brands for third-party companies to use in their products or services (e.g., National Geographic sells travel- and adventure-related products and books, and has even opened stores related to its area of coverage)” (ibid.).

As can be seen, this is merely a list of activities undertaken by various news media outlets or print magazines to innovate in how they disseminate ideas or news within this new and challenging context. But none of these activities concerns the diversification of investments by the group that owns the media company for the purpose of obtaining financial resources to sustain the news outlet. In the present case, by contrast, the petitioners are asserting that the original business unit Nombre03 (the newspaper) depends for its survival on another business unit that has nothing to do with the practice of journalism or communications (Parque Viva).

The judgment immediately turns to the phenomenon of holdings or corporate conglomerates, in the following terms:

“Likewise, it should be emphasized that, as part of the formulas to which media outlets have had to resort in order to diversify their sources of revenue and remain financially viable, they have also resorted to acquiring or affiliating with other companies whose principal activities may or may not be directly related to journalism (thus forming what have been called holdings or economic interest groups). This particular type of phenomenon has occurred in other countries and also at the national level” (ibid.).

This brings us into an area more closely related to the case before us, since it concerns corporate groups whose original business unit is a media outlet and that diversify their investments by acquiring “companies whose principal activities may or may not be directly related to journalism.” Grupo Nación falls within that phenomenon. That, however, is not in dispute. It is a matter of public and common knowledge, but it does not reflect actual dependence. It is one thing for that or any other group to wish to diversify its investments, and quite another for it to intend, in doing so, to maintain a business unit that is inherently unprofitable. In other words, the inherent purpose of holdings is not to retain a financially unviable business unit within their structure, but to increase revenue through various activities and minimize the risks involved in investing all capital in a single business unit.

The judgment then provides examples of holdings with investments in the media sector. It begins with the following:

“Thus, by way of example, there is the case of the newspaper The Boston Globe and other media outlets (which were, in turn, owned by the American newspaper The New York Times), which were acquired in 2013 by Nombre104, owner of the Red Sox baseball team and the Liverpool FC soccer team, for the purpose of addressing the substantial economic losses suffered by the former as a result of readers and advertising migrating to the internet” (ibid.).

It is a good example, although in the opposite direction: the owner of a non-journalistic company acquires two journalistic companies. But it does not appear that Mr. Nombre179 could invoke an infringement of freedom of expression if his respective sports teams were penalized with substantial fines. In any event, let us recall that here we are primarily analyzing the issue of financial dependence, which would be a prerequisite for determining the alleged link between administrative acts (actos administrativos) and an infringement of freedom of expression. It is therefore enough to say that this example serves only to show that, indeed, written journalism is now less profitable than ever compared with other business units, regardless of their line of business, and that those other units may provide financial support because both have the same owner, who may wish to subsidize the unprofitable one.

The judgment continues:

“Likewise, Nombre105, through his holding Berkshire Hathaway (a company owning all or part of the shares of various corporate groups engaged in textiles, insurance, automobiles, beverages, etc.), purchased sixty-three newspapers from the Media General Group in the southeastern United States in 2012, which were also experiencing low profitability. The newspapers acquired by Nombre174 included the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence, South Carolina” (ibid.).

Once again, the example is more closely related, but once again it is the reverse of the case before us: the corporate group, which had already diversified its investments across various activities, although none in the field of communications according to this passage, acquires “newspapers (…) which were also experiencing low profitability.” Because the example is similar, the observations would also be similar. It is therefore appropriate to transcribe what the judgment states next:

“Likewise, there is the case of Nombre106 (founder and owner of Amazon, the giant e-commerce company), who in 2013 purchased The Washington Post to ensure its survival after that news outlet had likewise suffered the effects of the emergence of new technologies and the decline in audiences and advertising revenue. It should be noted that, in this particular case, although the news outlet—as reported by, among others, the Spanish newspaper El País—will not formally be integrated into or affiliated with Amazon, its acquisition forms part of that same business strategy aimed at helping it remain in operation” (ibid.).

Indeed, this means that the owner of a business unit outside the media sector invests in a media outlet but does not incorporate it into his original financial structure. The truth is that it is not known whether such integration also occurred with Mr. Nombre179 or Mr. Nombre180, and in itself this is irrelevant. What matters is that these are examples in which the financial viability of media outlets is made possible by their acquisition by owners of companies engaged in other, more profitable lines of business.

In the present case, it is a group whose original business unit is a newspaper, which is said not to be profitable in itself, and which ventures into another line of business: it acquires another business unit whose activity is not conducted in the communications sector. The judgment states:

“In Costa Rica, the use of mechanisms or formulas of this kind is exemplified by Grupo Nación S.A. (the corporation of which the newspaper La Nación forms part), which decided to purchase the premises of what used to be Dirección03 and converted them into the event center known as Parque Viva, as a means of diversifying the company’s sources of revenue and thereby offsetting the loss of earnings caused by the migration of advertising to Internet sites” (ibid.).

That, as I have said, is a matter of public and common knowledge and, moreover, an entirely legitimate financial decision.

The judgment adds:

“It is understandable that, in the current circumstances, in which print media require financial support due to the loss of some of their traditional sources of revenue, other types of companies or corporations should be created or established—under the legal system—to provide them with resources and economic or financial sustainability so that the former may continue operating. The case of Nombre03 S.A. and the acquisition of what is now called Parque Viva, referred to above, provides a clear example of this” (ibid.).

I agree that this is understandable, and it is accepted as true that this was Grupo Nación’s objective in venturing into this new line of business. In other words, the acquisition of Parque Viva was directed toward that end: diversifying investment so that the group as a whole would obtain sufficient returns. I even concede that such diversification was intended to make the newspaper’s continued existence financially viable. But the judgment does not undertake to demonstrate actual financial dependence in terms that would substantiate what the petitioners claim, which—as has been seen—they likewise fail to prove.

The judgment immediately resumes its previous line of reasoning and adds:

“These types of financial structures, like the other examples cited above, become a source of income or resources that contributes to or makes it possible for journalistic work to be carried out, given that the revenue generated by the former makes it possible to cover or offset many of the expenses incurred by a media outlet. Consequently, it is a reality that, if mechanisms or arrangements of this kind are illegitimately or arbitrarily affected, the practice of journalism is in turn harmed—essentially, freedom of the press as a manifestation of freedom of expression” (ibid.).

Again, it can readily be accepted that investment diversification makes it possible to offset the losses of one business unit with the profits of another; but here, in the present case, before addressing the alleged arbitrariness of the challenged acts, it is necessary to prove, demonstrate, and clarify that the newspaper La Nación is in fact financially dependent on Parque Viva. After this exhaustive analysis, it is my view that the judgment omits any discussion of this crucial point, which is the key to the petitioners’ entire line of argument and without which they lack legal standing (legitimación).

This recital (considerando) of the judgment ends with a somewhat lengthy paragraph which, because of its importance and coherence, also merits transcription:

“Now, the consequential (indirect or concealed) impact that may be inflicted on freedom of the press by virtue of measures adopted against such financing structures is a matter that must be weighed in each individual case, it being clear that not every administrative act or conduct that imposes a burden or establishes a provision having an adverse effect on those entities entails a consequential injury of the kind described. Indeed, it should be noted that, like every regulated person (persona administrada), these structures are governed by and subject to the legal rules that regulate, define, and delimit the conduct of their respective economic activities. In this regard, their operations must satisfy and comply with the regulations applicable to their activities, including possession of the respective administrative authorizations (habilitaciones administrativas) required to conduct their commercial business.

They must therefore possess the relevant instruments demonstrating compliance with urban-planning, building (including those pertaining to Ley No. 7600), health, and safety regulations, as well as the commercial licenses and permits required in each case. In addition, they must comply with the applicable tax regulations. Likewise, in the course of their operations, like every person, they are subject to oversight and supervision of the conduct of their activities in order to verify that they maintain the level of compliance on the basis of which their commercial activity was authorized. Within that framework, failure to observe the operating conditions imposed by those sector-specific regulations could (sic) result in the imposition of restrictive administrative measures or administrative penalties (sanciones). This is so provided that the specific exercise of this manifestation of administrative police power (poder de policía administrativa) may be deemed legitimate, based on proper and timely proof of the circumstances of noncompliance that would give rise to each legal consequence, and provided that the decision is consistent with the merits of the case record and the applicable Legal System (the relationship between the objective substantive elements of grounds and content) and is congruent with the protected public interest.

In such circumstances, where the administrative function constitutes the legitimate exercise of administrative powers intended to safeguard the public interest, one could not assert a form of consequential infringement of freedom of the press; rather, it would constitute the lawful and foreseeable consequence of failure to comply with public-order rules to which every regulated person is subject. By contrast, where such measures are unsupported by the various factual or legal requirements that the body of rules defines in each instance as necessary antecedents (condition precedents) for adopting a particular punitive or adverse decision, or where the substance of the act adopted following verification of those conditions is excessive, disproportionate, or unreasonable in relation to those antecedents, contrary to the public interest, or generally unlawful (in the broad sense), this would constitute administrative conduct that may entail misuse of power (desviación de poder) (art. 113 LGAP) and, as indicated, an indirect or consequential injury to freedom of the press.

This requires a careful analysis of the particular circumstances of each case as the basis for a neutral, equitable, and objective balancing of fundamental freedoms and rights within a system governed by the rule of law, against the exercise of administrative powers whose purpose and underlying principle are to protect and serve the public interest. Therefore, not every act that adversely affects the sphere of a financial structure entails an impairment of the freedom under examination; nor, conversely, may every administrative oversight function relating to such structures be deemed legitimate without further analysis. Accordingly, in cases such as the present one, where an indirect violation of freedom of expression and freedom of the press is alleged as a result of oversight activities by the Health Administration, this judicial body must weigh the particular nuances in order to determine whether the powers were properly or improperly exercised, as a condition sine qua non for a value judgment concerning whether there is a duty to validly tolerate those administrative impositions” (ibid.; emphasis not in the original).

Put differently, each business unit must comply with the legal system, and the Administration may impose penalties when it considers that the unit has failed to do so; however, those penalties must be duly substantiated. Determining whether they are requires examination of the relationship between the objective substantive elements (grounds and content) and their congruence with the protected public interest.

It is precisely this examination that the Chamber is expected to conduct in the subsequent recitals, for, as that passage rightly states: “Not every act that adversely affects the sphere of a financial structure entails an impairment of the freedom under examination; nor, conversely, may every administrative oversight function relating to such structures be deemed legitimate without further analysis.” This section of the dissenting opinion (voto salvado) analyzes whether the procedural prerequisite known as legal standing is satisfied, on the understanding that the newspaper’s dependence—not a mere financial link—is a condition without which it cannot be asserted that there is a legal connection between the challenged acts and the alleged injury. In other words, such a connection is required in order to possess that legal standing. But in the analysis on the merits, as that passage of the judgment correctly notes, another condition must be present for the injury to be declared: the act must be arbitrary. However, as I showed in the preceding section, the complexity of those acts leads to the conclusion that their examination is not appropriate in an amparo proceeding (recurso de amparo), which is summary by nature.

Thus ends that recital, which notably lacks precisely the analysis and verification of the dependence in question. It can only be concluded that Grupo Nación expanded its range of businesses, but it has not been demonstrated that the operation of the newspaper where the petitioners work is financially dependent on Parque Viva and that there is therefore a basis for examining whether their freedom of expression has in any way been affected by acts directed at that other business unit.

(5) The Financial Statements and the Alleged Dependence The filing initiating the proceeding contains a link to Grupo Nación’s financial statements. I intend to conduct a brief analysis of them in order to determine whether the alleged dependence exists.

The link in question leads to the website containing the audited consolidated financial statements, the reports of the Office of the President, and the reports to shareholders. The latter also incorporates the former two. The quarterly financial statements are also included.

Regarding the latest period, which ended in December 2021, particular attention should be paid to the table entitled “La Nación, S. A. and subsidiaries. Assets, liabilities, and segment results as of December 31, 2020 and for the period then ended (expressed in thousands of Costa Rican colones),” and the similar table as of December 31, 2021, because their various columns reflect those items by business unit. The following information appears before those tables:

“As of December 31, 2021 and 2020, information is presented on the assets and liabilities, as well as the financial performance, of the Group’s principal operating segments, comprising the activities conducted by: a) Media – Includes revenue from the newspapers La Nación and La Teja and the weekly El Financiero, as well as revenue from printing for third parties and the production and distribution of paper and cardstock; b) Digital – Comprises the results generated by the products El empleo and Yuplón; c) Parque Viva – A business centered on venue management and the creation of entertainment platforms; d) Portfolio – Includes investments at fair value through other comprehensive income held abroad through its subsidiary Desarrollo Los Olivos, S.A., investments in local financial instruments, investments in associates, and other equity interests.” Those tables state the following. In 2020, the consolidated losses of Media, which—according to the quoted text—includes the newspapers La Nación and La Teja and the weekly El Financiero, were ¢ (1.772.204); and the consolidated losses of Parque Viva were ¢ (2.365.096). In 2021, the consolidated losses of Media were ¢ (1.969.114), and those of Parque Viva were ¢ (51.802).

Only the following conclusions can be drawn from that information:

1. 1The newspaper La Nación and Parque Viva belong to Grupo Nación (a fact that, moreover, is public and notorious).
2. 2The information appearing on the si
3. 3The tables appearing in the Shareholders’ Report concerning assets, liabilities, and segment results as of December 31– showed losses. And overall (both years), Media’s losses of ¢ (3.844.599) were greater than Parque Viva’s losses of ¢ (2.416.898).

But without further information provided by the petitioning party, it cannot be inferred from this alone that the newspaper is financially dependent on Parque Viva, particularly because the latter is a business un Perhaps the results observed in recent years could have arisen from investments and indebtedn[48][49][50] Now, although it could not be said th[51] On the other hand In fact, the only thing the petitioners provided was the link where the information appears, without offering even the slightest accounting explanation to support the assertion of dependency.

In short, the information contained on the website neither refers to nor is sufficient to establish as tru Finally, I must make another observahere what is at issue is not the financial connection between the two business units, since both belong to the same Grupo Nación, but rather the newspaper’s financial dependence on Parque Viva, and, as has been seen, that was not proven by th[52][53][54] It is taken for granted, even though it is the condition required to determine whether there is a legal connection between the challenged acts and the allegedly violated freedom.

Furthermore, regarding the words of Nombre138 Nombre01, no longer in th[55][56] “The report from the President asks: ‘How is it possible, justices, for Grupo Nación to come here and say that they are pinning all their economic hopes on whatever revenue may be generated by Parque Viva’s economic activity so that they can pay their employees, and that temporarily closing that venue to mass events because it fails to meet minimum health requirements is a direct attack on freedom of the press? That merely demonstrates that the financial health of La Nación is not as they would have us believe and that they depend on this venue to survive financially.’ Grupo Nación has said none of that. We petitioners are journalists with Grupo Nación (…), professionals whose freedom of expression is being restricted through arbitrary actions against the ‘structures’ that support our free practice of journalism, as the President promised.

Moreover, we have not spoken of a ‘direct attack’ on freedom of expression, but rather of an indirect one, which is equally prohibited by Article 13.3 of the Convention and the case law of the Inter-American Court. We never said that payment of our salaries depends on Parque Viva, as is also asserted in the Office of the President’s press release. To verify everything stated above, one need only read the petition, but it is worth noting the insistence on the alleged demonstration that they ‘depend on this venue to survive financially.’ The baseless obsession with the company’s finances extends even to interpreting things we did not say! Of course, if the wishes revealed by that passage were to come true, the closure of Parque Viva would put an end to the bothersome journalism practiced by us petitioners, which prompted the threat made during the campaign. It could not be clearer” (petitioners’ filing dated August 17, p. 12; emphasis not in the original).

This passage warrants reflection. On the one hand, as the petitioners rightly point out, Nombre138 confuses “Grupo Nación” with “journalists from La Nación.” On the other hand, the President expresses surprise that Grupo Nación pins its hopes on Parque Viva. He adds that this merely demonstrates that La Nación’s financial health (here it is unclear whether he means the newspaper or the group) is poor and that, in fact, what the petitioners said (whom he confuses with the group) confirms that they depend on Parque Viva to survive financially (both the group and, one might say, the newspaper). By those words, he is not himself saying that La Nación depends on Parque Viva; rather, he says that they claim that La Nación (the group or the newspaper) depends on Parque Viva.

At this point, the issue of standing (legitimación) would be resolved: the petitioners assert that the newspaper La Nación depends on Parque Viva, and the respondent accepts this, because he understands it as confirmation that the group (or the newspaper) lacks financial health. (The latter would justify his conduct and his expressed concern about the bonds; but for purposes of the merits analysis in this amparo proceeding (recurso de amparo), it is an element that clearly weighs against him, because it would constitute an admission that the order was intended to deprive the newspaper of financial support.) In any event, what should be emphasized here is that although the President does not affirm that such financial dependence on Parque Viva exists (whether on the part of the newspaper itself or the group), neither does he deny it.

However, the petitioners reply that it is not true that either they or Grupo Nación said that La Nación, the company in which they practice journalism, depends on Parque Viva. Instead, they say that if that were so, if they did in fact depend on it, if what the President says were true, then the closure of Parque Viva would indeed consummate the violation of freedom of expression:

“Of course, if the wishes revealed by that passage were to come true, the closure of Parque Viva would put an end to the bothersome journalism practiced by us petitioners, which prompted the threat made during the campaign” (ibid.).

So? Do they depend on it or not?

In any event, I consider that the failure to establish the newspaper’s financial dependence—the newspaper where the petitioners work—on Parque Viva—the property affected by the challenged acts and owned by another business unit—has a procedural legal effect: the absence of standing to validly bring an amparo proceeding before the Chamber based on an alleged violation of freedom of expression arising from Parque Viva’s closure. That is, because this dependence was not established, the conditions were likewise absent for the Chamber to examine on the merits whether there was a nexus between the venue’s closure and the specific impact on the media outlet, its ordinary operations, and, specifically, the petitioners’ freedom of expression.

I must add that even if standing had been established, the amparo proceeding would still be an unsuitable mechanism for reviewing the challenged acts.

Furthermore, it is appropriate to emphasize that this is not an analysis of the merits, but rather of the procedural prerequisites, whose existence is not dispensable but is co

V. Different Grounds

A. Introduction As will be recalled, the petitioners seek annulment of the challenged acts affecting Parque Viva, alleging that they are arbitrary and constitute an indirect means of violating their freedom of expression because they deprive the media outlet where they work of financial support and, consequently, of genuine independence.

As may be seen, my dissenting opinion proceeds in two directions. On the one hand, I show that the petitioners lack standing to allege this purported violation through indirect means because the connect[57] The Chamber’s majority does not address those aspects, but instead accepts the connection between the challenged acts and the violation allegedly caused by them, as asserted by the petitioners, and grants the petition on the understanding that Article 13. 3 of the ACHR was violated.

I chose to grant the petition as it relates to the violation of freedom of expression, but on grounds different from those of the majority. I shall now explain them.

First, I will address the procedural principle that makes it possible to examine this violation and the reasons why there is no legal obstacle to doing so. I will then explain why I consider that a violation of freedom of expression through indirect channels or means—that is, a violation of Article 13.3 of the ACHR—should not be declared. I will next offer some comments on all the case law of the Inter-American Court of Human Rights and the Constitutional Chamber concerning this provision, which is cited in the case file and instead appears to confirm my thesis. I will then refer to several scenarios that permit reflection on the issue under discussion. Finally, I will show why, in my judgment, the petitioners’ freedom of expression was indeed violated.

Possibility of Examining the Alleged Violation Throughout the dissenting opinion, I have emphasized that the Constitutional Chamber lacks jurisdiction to review the challenged subject matter (the health order and the related official communication) and that the petitioners do not possess the standing they claim to have. I therefore understand the surprise that might arise from my simultaneously maintaining that the merits of the matter should indeed be examined insofar as freedom of expression is concerned.

The apparent dilemma disappears once it is understood in what sense and under what premise I examine the merits of this amparo proceeding.

Indeed, what I maintain is that it is possible to determine whether a violation of freedom of expression occurred, but not the violation alleged by the petitioners; and that it is possible to review a challengeable subject matter (act or conduct), even though the petitioners challenged it only implicitly rather than expressly; and that this subject matter would be the cause of that violation. Because that challenged subject matter directly affects the petitioners, even though they did not expressly allege it in those terms, it may be reviewed. They therefore have standing, and that procedural prerequisite is satisfied. Furthermore, as will be seen, given their characteristics, that subject matter and that violation are amenable to review in a summary proceeding such as amparo.

Is it appropriate to make that distinction in order to consider what was not alleged? What allows me to do so? The principle of iura novit curia, which translates as follows: “the judge knows the law.” This principle is linked to the maxim da mihi facta, dabo tibi ius, which, in simple terms, is commonly translated as follows: give me the facts, and I will give you the law. In other words: explain to me what happened, and I will tell you who is right from a legal standpoint.

This is the classic principle by which the judge is empowered to consider the facts and apply the law as the judge deems appropriate, without necessarily being bound by the arguments presented by the parties.

The Pan-Hispanic Dictionary of Legal Spanish of the Real Academia de Lengua Española defines that principle as follows:

‘The court knows the law.’ A principle that allows a judicial body to apply rules other than those invoked by the parties, after giving them an opportunity to be heard.

The same dictionary immediately quotes a judgment of the Tribunal Supremo de España that illustrates the concept very well:

“The principle of iura novit curia allows the Judge to base the decision on the statutory provisions or legal rules that are applicable to the case, even if the litigants have not invoked them, and means that the adjudicator is bound only by the essence and substance of what was sought and disputed in the litigation, not by the literal wording of the specific claims asserted as formulated by the litigants; accordingly, there will be no extra petitum inconsistency when the Judge or Court rules or pronounces upon a claim that, although not formally and expressly asserted, was implicit in, or was an indispensable or necessary consequence of, the relief sought or the principal issue debated in the proceedings” (STS, 3.ª, 16-VI-2015, rec. 3739/2013; emphasis not in the original).

I reiterate that this principle allows the judge to apply the law as the judge deems appropriate, but without altering the facts. Of course, the judge will assign those facts the weight considered reasonable in light of their relevance; but this also occurs when the principle is not invoked. That is, when assessing the facts, the judge weighs them and determines what the judge considers relevant. Thus, under that principle, what matters is not what the appellants seek, but what the parties recount.

The Chamber has applied that principle since its inception, both in constitutional-review proceedings and in judicial proceedings for the protection of fundamental rights. Here are some examples concerning the latter, specifically remedies of amparo (recursos de amparo):

“II.- The failure of the Ministro de Obras Públicas y Transportes to respond to the repeated petitions and complaints of the appellant and other interested parties constitutes, in itself, a violation of her right of petition enshrined in Article 30 of the Constitución Política. Although that provision was not expressly invoked in the remedy, the Minister’s silence was invoked, and that silence entails the stated violation, which may be declared by the Chamber pursuant to the principle of ‘iura novit curia’ and must be declared because fundamental rights and freedoms are, by definition, matters of public policy” (judgment 1989-73).

To the same effect, it stated:

“In application of this imperative and of the principle of ‘iura novit curia,’ the constitutional judge is required to analyze any matter that, even if it has not been alleged, could result in a violation of a constitutional right” (judgment 1991-1129).

In another judgment, it held that an infringement may be declared even if it was not expressly asserted in the remedy:

“The failure of Banco Nacional to respond specifically to the appellants’ repeated petitions and complaints constitutes, in itself, a violation of their right of petition enshrined in Article 27 of the Constitución Política. Although that provision was not expressly invoked in the remedy, the bank’s silence was invoked, and that silence entails the stated violation, which may be declared by the Chamber by virtu1998-5839).

Along the same lines, it emphasized that consideration must be given to the infringement tacitly alleged by the appellant:

“Although there has been no infringement of the rights that the appellant alleges were violated, this Chamber, on the basis of the principle of iura novit curia, observes that the facts reveal the infringement of a right that the appellant tacitly alleges was infringed: the right judgment 2013-9403).

If [58] Absence of a violation of Article 13.3 of the ACHR First, I wish to explain why I believe there was no violation of freedom of expression through indirect means. To that end, before assessing the factual framework, I will conduct a very brief exegeti[59] Very brief exegetical analysis of Article 13.3 of the ACHR It is appropriate to quote that provision of the Pacto de San José, or ACHR, once again:

Article 13. (…) 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used in the dissemination of information, or by any other means designed to impede the communication and circulation of ideas and opinions (emphasis not in the original).

As may be observed, this paragraph has three clearly defined parts: the first establishes the prohibition against restricting freedom of expression through indirect methods or means; the second contains examples of such methods and the phrase that makes those examples non-exhaustive (or by any other means); and the third sets forth the essential characteristic of those means, relating to their purpose (to impede the communication and circulation of ideas and opinions).

Moreover, although the list of examples of indirect methods or means contained in the provision is illustrative rather than exhaustive, it must be borne in mind that those “other means” must follow the logic of the examples mentioned, which share a common denominator: they are actions directed at the communicative activity itself. Even the third part of the provision confirms this, because it specifies that what makes those indirect methods or means unlawful is that they are “designed to impede the communication and circulation of ideas and opinions.” Furthermore, the provision refers to indirect means of causing direct infringements, not to indirect infringements caused by indirect means. That is particularly important.

Substantive consequence of the failure to establish dependency As discussed, the appellants did not establish the financial dependency of the newspaper La Nación on Parque Viva. This has a procedural effect because, since the connection between the challenged acts—which concern a business unit different from the one in which they work—and the alleged infringement of the appellants’ freedom of expression was not demonstrated, they lack standing (legitimación).

In the present case, however, this also has a consequence for the decision on the merits. Acts concerning real property owned by the newspaper’s owners cannot be understood as an indirect means of infringing the appellants’ freedom because, in the absence of financial dependency, it likewise cannot be said that those acts impede “the communication and circulation of ideas and opinions” (Article 13.3 of the ACHR). This remains so even on the assumption that affecting the newspaper’s financial position entails infringing freedom of expression.

Absence of a violation even if standing existed I have said that there is no standing because dependency was not established, such that the connection between the challenged subject matter and the alleged infringement of freedom of expression was not shown. But what would have happened if it had been established? In other words, is it enough to establish a media outlet’s financial dependency on another business unit engaged in a different line of business and owned by the same owner as the newspaper in order to conclude that every allegedly arbitrary act suffered by that business, which is unrelated to the field of communications, affects the freedom of expression of those who work at the newspaper?

This is a matter of great importance. Now, because I find that dependency was not established, it would not be necessary for me to reflect upon it; nevertheless, I would not wish to give rise to confusion.

Standing is a procedural matter concerning the admissibility of the remedy (on which the court may rule at any time, not only at the initial stage; that is, it may dismiss the remedy for failure to satisfy this procedural prerequisite: that is precisely what I did in the dissenting opinion). For purposes of these reflections, however, it will be assumed that dependency, and therefore standing, does exist.

Clearly, establishing standing is not enough to conclude that freedom of expression was infringed through indirect means. Two further issues must then be examined: whether that freedom was affected and whether the challenged acts were arbitrary.

• a)Concerning the effect on freedom of expression It is a matter of public and common knowledge that the newspaper La Nación has continued its journalistic work, and it has not been established that the closure of Parque Viva—pursuant to a health order that presumably seeks to protect the rights to health, personal integrity, and life of the neighbors and persons attending that commercial establishment—has affected the operation of the media outlet or the appellants’ journalistic work. Nor was it demonstrated that it would affect them in the future. Had the health closure order applied to the newspaper’s premises, it would be far more understandable to conclude that there were grounds to apply Article 13.3 of the ACHR. In the present case, however, even if the financial dependency of the newspaper La Nación on Parque Viva had been demonstrated, it has not been established that the health order had a direct impact on the appellants’ exercise of freedom of expression, that is, on “the communication and circulation of ideas and opinions.” Indeed, it should be noted that Article 13.3 of the ACHR refers to indirect means, but the infringement must be direct.

At the very least, it must be direct in order to be the subject of a remedy of amparo, because, as explained earlier in the dissenting opinion (when discussing the elements that conditioned the Chamber’s jurisdiction to hear such a remedy), there is a great abundance of case law holding that the infringement sought to be remedied through this avenue must be direct.

That provision establishes as an essential condition that those indirect means or methods be “designed to impede the communication and circulation of ideas and opinions.” In fact, as noted, the examples listed in Article 13.3 of the ACHR itself, illustratively rather than exhaustively, refer to actions that affect the communications enterprise.

But I am not alone in saying this. The case law of the Inter-American Court of Human Rights and the Sala Constitucional has itself said so. The following section will address this matter in greater detail. It is now appropriate to analyze the other condition: that the acts be arbitrary.

• b)Concerning the arbitrariness of the acts If there is no such effect on freedom of expression, as is a matter of public and common knowledge, then there is no need to examine whether the challenged administrative acts, which are alleged to be arbitrary, constitute an indirect means of infringing that freedom.

Accordingly, it would not be necessary to continue the analysis.

But let us assume several things that have not been proven in order to continue reflecting on this matter: Let us assume that La Nación is financially dependent on Parque Viva and that the challenged acts (actos impugnados) prevented, or constitute a certain threat that will prevent, “the communication and circulation of ideas and opinions.” Then, under those assumptions, it would be appropriate to examine the alleged arbitrariness (arbitrariedad) of the challenged acts. It is clear that there would be only two possibilities: either they are arbitrary or they are not.

(2) If the acts are not arbitrary: consequences If the acts were lawful (because all requirements for validity and effectiveness were met), they would have the same impact on the newspaper’s financial health, but there would be nothing for which relief could be granted. That is, freedom of expression would not have been infringed, since the financial impact of the challenged acts found to be lawful would itself also be a lawful collateral effect, albeit one harmful to the newspaper. To affirm this, it is enough to recall the classic principle of double effect (principio del doble efecto), under which no responsibility attaches for an indirect harm produced by a lawful and proportionate direct voluntary act. In this particular case, this translates as follows: if it were shown that the challenged acts issued by the Administration are lawful (direct voluntary acts concerning Parque Viva), no responsibility whatsoever could be attributed to it (the Administration, that is, the Ministerio de Salud) for the indirect effects (even if harmful) suffered by the newspaper La Nación and, specifically, by its journalists.

Thus, if the Chamber—or the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa), which in my view was the proper forum for reviewing those acts—had declared that the acts were lawful and not arbitrary, they would in practical terms have had the same impact on the newspaper’s financial health; but legally, no infringement of freedom of expression would have occurred, including under Article 13.3 of the American Convention on Human Rights (CADH). In other words, the journalists would be in the financially vulnerable situation from which, according to their allegations, they suffer; but that situation would not be the product of harmful conduct by the Administration, but rather of lawful conduct, and therefore there would be no infringement of freedom of expression for which constitutional relief (amparo) could be granted.

(1) If the acts are arbitrary: consequences If it is established that the challenged acts are arbitrary, still under the assumptions that there is financial dependence and that harm occurs because “the communication and circulation of ideas and opinions” is prevented, then the acts would, in principle, become infringements of the journalists’ freedom of expression.

However, as I have explained in the dissenting opinion (voto salvado)—and I believe it will become even clearer in the headin But why have I just stated that “then such acts would, in principle, become infringements of the journalists’ freedom of expression”? Because, from my perspective, even if the acts were arbitrary, an infringement of freedom o would not necessarily occur What should now be emphasized is that, as has been seen, in the present case there was no infringement of freedom of expression in the terms set forth in Article 13.3 of the CADH and that, even if there had been, relief could have been granted only if the finding that the acts were arbitrary had b[60] It is now appropriate to examine the case law invoked both by the appellants and by the Chamber’s majority to support the violation of Article 13.3 of the CADH.

Considerations regarding the case law invo[61] As is known, the appellants and the majority invoke Article 13.3 of the CADH to assert that a health order (orden sanitaria) and its related official communication (oficio conexo), issued with respect to the Parque Viva property, infringe the freedom of expression of journalists working for the newspaper La Nación—that is, in a business unit separate from the Parque Viva business. As part of their arguments, they invoke case law from both the Inter-American Court of Human Rights (Corte IDH) and the Sala Constitucional.

I will now offer some observations in this regard to show that those judgments actually support my position.

The case law of the From my perspective, the case law issued by the Corte IDH and cited to argue that Article 13.3 of the CADH was violated in this matter is highly valuable, but the cases mentioned bear no factual similarity to the case under consideration in the matter at hand (sub lite). Therefore, the legal rationales (rationes) underlying those judgments do not fit and cannot validly be invoked. Moreover, the appellants invoke certain cases decided by the Corte IDH that, as will be seen, the Chamber’s majority logically does not include in the judgment, because doing so would entail plac[62] First, the appellants—but not the Chamber’s majority in the judgment—cite the case of “Ríos et al. v. Venezuela,” decided in a context of continuing aggression and threats against journalists, camera operators, photographers, and other media workers. In that decision, the Corte IDH explains the content of Article 13.3 of the CADH as follows:

“340. A literal interpretation of this provision [Article 13.3 of the CADH] permits the conclusion that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect methods or means’ to restrict them is prohibited. The enumeration of restrictive means in Article 13.3 is not exhaustive, nor does it preclude consideration of ‘any other means’ or indirect methods arising from new technologies. Furthermore, Article 13.3 of the Convention imposes guarantee obligations on the State, even in the sphere of relations between private individuals, because it encompasses not only indirect governmental restrictions but also ‘private... controls’ that produce the same result. For a violation of Article 13.3 of the Convention to occur, the method or means must effectively restrict, even indirectly, the communication and circulation of ideas and opinions.

360. Regarding the purpose pursued by those official communications, namely indirectly influencing and pressuring executives with respect to the content of the information disseminated, the Court notes that the Commission and the representatives have not submitted evidence or materials showing that the issuance of the official communications affected the alleged victims’ freedom to seek, receive, and impart information. Nor have they submitted evidence rebutting the content of the official communications, which were issued pursuant to regulations in force in Venezuela (…).

380. As previously stated (supra para. 340), this Court considers that, for a violation of Article 13.3 of the Convention to occur, the method or means must effectively restrict, even indirectly, the communication and circulation of ideas and opinions.

381. The Court observes that, although the presence and actions of agents of the DISIP or Casa Militar at the ‘Los Mecedores’ station, where RCTV’s transmission antennas were located, may have been perceived as threats and may have had some intimidating effect on the alleged victims, the Court does not have sufficient evidence demonstrat (…).

394. Ultimately, it has not been proven before the Court that the three official communications issued by CONATEL concerning the content of a program broadcast by RCTV and the interventions in its broadcasts constituted improper and indirect restrictions on the alleged victims’ right to seek, receive, and impart information, amounting to a violation of Article 13.1 and 13.3 of the American Convention, to their detriment” (emphasis not in the original).

From the foregoing, the following should be emphasized: “for a violation of Article[63].” In other words, the indirect mechanism used by the authorities must have a direct effect on freedom of expression and the free circulation of ideas and opinions. The Corte IDH held that it had not been established that the State violated the right to seek, receive, and impart information within the meaning of Article 13.3 of the CADH. Presumably, because the alleged violation of that provision was rejected, the Chamber’s majority did not invoke this judgment in support of its decision. Nevertheless, I consider the stated legal rationale (ratio) extremely important; it is repeated in subsequent opinions on the matter, with the identified condition remaining intact: “that the method or means effectively restrict, even indirectly, the communication and circulation of ideas and opinions.” Second, the majority judgment relies on the holding in “Case Nombre65 v. Perú.” In that decision, the Corte IDH did find a violation of Article 13.3 of the CADH, because it determined that indirect pressure exerted against Mr. Nombre21—legally invalidating his certificate of Peruvian nationality, without which he could not continue as the owner of a television-channel concessionaire—had infringed his freedom of expression. In finding a violation of that provision, it stated:

“162. In the context of the facts described, this Court observes that the decision that legally invalidated Mr. Nombre158’s certificate of nationality constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and conducted investigations for the program Contrapunto on Channel 2 of Peruvian television.

163. By removing Mr. Nombre158 from control of Channel 2 and excluding the journalists from the program Contrapunto, the State not only restricted their right to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thereby limiting their freedom to exercise political choices and develop fully in a democratic society.

164. In view of all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Article 13.1 and 13.3 of the Convention, to the detriment of Nombre21” (emphasis not in the original).

Thus, that judgment determined that—as a consequence of the editorial line adopted by Channel 2—Mr. Nombre158 was subjected to various forms of intimidation, culminating in specific restrictions on freedom of expression: his exercise of rights as the majority shareholder and Nombre138 of the television company was suspended, and his appointment as its director was revoked; consequently, the circulation of the ideas promoted by the protected party (amparado) was restricted. In other words, a restriction was establishe c The Chamber’s majority then refers to the case of “Nombre67 v. Paraguay.” In that decision, the Corte IDH broadly protected Article 13 of the CADH, holding as follows:

“[T]he State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, in conjunction with Article 1.1 of that treaty The factual framework of that case shows that a definite injury was caused to Mr. Nombre159’s ability to exercise his freedom of expression. This was because it was established that, following his state[64] “[T]he Court considers that, in this case, the criminal proceedings, the resulting sentence imposed on Mr. Nombre159 for more than eight years, and the restrictions on leaving the country for eight years and almost [65] With respect to this case, it must be said that there were direct consequences for the person who made the statements, who, because of them, was criminally punished through restrictions on his freedom of movement.

Next, reference should be made here to the case of “Perozo et al. v. Venezuela,” which was also invoked by the appellants, but not by the majority of the Chamber. That judgment concerns a turbulent political situation and a context of “threats [and attacks] against members of the media.” The Inter-American Court of Human Rights protected the situation of the members of the media under Article 13.1, but not Article 13.3, both of the CADH, in the following terms:

“The effective exercise of freedom of expression entails the existence of social conditions and practices that foster it. That freedom may be unlawfully restricted by legislative or administrative acts of the State or by de facto conditions that directly or indirectly place those who exercise or attempt to exercise it in a situation of risk or heightened vulnerability, through acts or omissions by State agents or private individuals. Within the framework of its obligations to guarantee the rights recognized in the Convention, the State must refrain from acting in a manner that creates, encourages, favors, or exacerbates that vulnerability and must adopt, where appropriate, meas 367. (…) A literal interpretation of this provision [Article 13.3 of the CADH] supports the conclusion that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect methods or means’ to restrict them is prohibited.

The list of restrictive means set forth in Article 13.3 is not exhaustive, nor does it preclude consideration of ‘any other means’ or indirect methods arising from new technologies. Furthermore, Article 13.3 of the Convention imposes obligations of guarantee upon the State, even within the sphere of relations[66] 368. This Court considers that, for a violation of Article 13.3 of the Convention to be established, the method or means must actually restrict, even indirectly, the communication and circulation of ideas and opinions.

369. The statements identified, examined in the context in which they were made, contain opinions regarding the alleged acen in a State governed by the rule of law, conflict situations must be addressed through the channels established in the domestic legal system and in accordance with applicable international standards. In the context of vulnerability faced by the alleged victims, certain expressions contained in the statements sub examine could have been perceived as threats and could have had an intimidating effect, and even caused self-censorship, among them because of their relationship with the referenced media outlet. However, the Court considers that, in view of the criteria indicated[67][68], in relation to Article 1.1 thereof” (emphasis not in the original).

A reading of that passage makes clear why the majority did not refer to that judgment of the Inter-American Court of Human Rights. It is worth emphasizing the Court’s ratio decidendi, namely, that for a violation of Article 13.3 of the CADH to be established, the method or means must actually restrict, even indirectly, the communication and circulation of ideas and opinions. As is publicly known and notorious, that has not occurred in the present case because, following the issuance of the administrative acts (actos administrativos), the journalists have been able to express their ideas and opinions without any difficulty, and the impossibility or genuine difficulty of doing so in the future—due to the existence of those acts—was not duly proven.

Finally, reference must be made to the “Case of Nombre162 et al. (Radio Caracas Televisión) v. Venezuela,” which was invoked both by the appellants and by the majority of the Chamber, and in which a violation of freedom of expression through indirect means was declared. It arose within the political and social crisis that occurred in Venezuela, in which “since the year 2002, officials of the Venezuelan State, including Nombre138 Nombre163, made various statements to the effect that the concessions held by certain private media outlets in Venezuela would not be renewed,” and then “beginning in December 2006, State officials began announcing the official decision not to renew RCTV’s concession.” That judgment included the following relevant considerations:

“1.3. Indirect restrictions—scope of Article 13.3 of the Convention 161. (…) This Court considers that the scope of Article 13.3 of the Convention must result from a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this provision supports the conclusion that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect methods or means’ to restrict them is prohibited.

162. In this regard, the Court notes that the purpose of this paragraph is to illustrate more subtle ways in which State authorities or private individuals may restrict the right to freedom of expression. Indeed, this Court has previously had occasion to find an indirect restriction resulting, for example, from a decision that rendered ‘legally ineffective the nationality certificate’ of the majority shareholder of a television channel, or from ‘the criminal proceedings, the resulting sentence imposed […] for more than eight years, and the restrictions on leaving the country for eight years’ against a presidential candidate.

163. Moreover, the list of restrictive means set forth in Article 13.3 is not exhaustive, nor does it preclude consideration of ‘any other means’ or indirect methods arising from new technologies. In this regard, Article 13 of the Declaration of Principles on Freedom of Expression identifies other examples of indirect means or methods, stating that ‘[t]he use of the power of the State and the resources of the public treasury; the granting of customs-duty privileges; the arbitrary and discriminatory placement of government advertising and allocation of official credit; the granting of frequenci Thus far, the most relevant point in that passage is that the Inter-American Court of Human Rights states that indirect restrictions on freedom of expression are more subtle; it then refers to its own case law and emphasizes that the enumeration of such restrictions in Article 13.3 of the CADH is not exhaustive; and, finally, it mentions other possible examples, including those cited by the expert witness (perito). In that regard, it should be borne in mind that those measures—advertising and taxes—fall directly upon those media outlets. It then states:

“164. Likewise, the Court recalls that for [69] Furthermore, the Court reiterates that Article 13.3 of the Convention imposes obligations of guarantee upon the State, even within the sphere of relations between private individuals, because it encompasses not only indirect governmental restrictions but also private controls that produce the same result. In this regard, the Court emphasizes that an indirect restriction may have a deterrent, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on matters of interest to society” (emphasis not in the original).

As can be seen, this paragraph is particularly significant because it reiterates that, for a violation of that provision to be established, the indirect method or means must actually restrict the communication and circulation of ideas and opinions. In other words, for conduct to be regarded as an indirect means of restriction, such a restriction must occur. If no restrictive effect occurs, the means alleged to be restrictive is not such a means, precisely because it lacks an essential condition: actually affecting freedom of expression, that is, the communication and circulation of ideas and opinions. This seemingly obvious point is precisely what leads to the conclusion that the alleged violation of Article 13.3 of the CADH has not occurred here in the present case.

That same passage states that such a restriction may manifest itself in several ways: it may have a deterrent, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on matters of interest to society. And it is publicly known and notorious that, following the issuance of the health order (orden sanitaria) and the related official communication (oficio), the appellant journalists have continued to perform their work according to their own judgment and position, as is proper in a democratic society. Moreover, they did not conclusively show—not even through circumstantial evidence—that, because of those challenged administrative acts, they would be unable to continue doing so in the future.

In that judgment, after discussing the content and importance of freedom of expression in a democratic society, the Inter-American Court of Human Rights states:

“171. Taking the foregoing into account, the Court emphasizes the need for States to regulate clearly and precisely the processes concerning the granting or renewal of concessions or licenses related to broadcasting activities, using objective criteria that prevent arbitrariness. Specifically, the general safeguards or guarantees of due process (debido proceso) that each State considers necessary in such processes must be established in light of the American Convention, in order to prevent the abuse of official controls and the creation of possible indirect restrictions (…).

189. Now, both the Inter-American Commission and the representatives have asserted that this was not the actual purpose, since there was allegedly evidence demonstrating an intention to punish RCTV for its editorial stance critical of the Government. In this regard, in the present case, the Court considers it necessary to take into account that the motive or purpose of a particular act by State authorities is relevant to the legal analysis of a case, because a motive or purpose different from that of the provision granting the State authority the power to act may demonstrate whether the action can be regarded as arbitrary conduct or a misuse of power (desviación de poder). In this connection, the Court takes as its starting point that the actions of State authorities are covered by a presumption of lawful conduct. Accordingly, improper conduct by State authorities must be proven in order to rebut that presumption of good faith. To this end, the Court shall: (a) review the evidence in the case record (expediente) concerning the alleged undisclosed purpose; and (b) examine that evidence.” In other words, it acknowledges that an examination must be conducted to determine whether there was a misuse of power, and for that purpose it considers an analysis of the evidence unavoidable. On this point, the Inter-American Court of Human Rights states:

“197. The Court therefore concludes, as it has in other cases, that the facts of the present case involved a misuse of power, because a permissible State power was used for the purpose of bringing the media outlet’s editorial stance into alignment with the government. The foregoing finding derives from the two principal conclusions that this Court can reach on the basis of the matters described above, namely, that the decision had been made beforehand and that it was based on the displeasure caused by RCTV’s editorial stance, together with the context of the ‘deterioration in the protection of freedom of expression’ that was proven in the present case (supra para. 61).” 198. Likewise, this Court considers it necessary to emphasize that the misuse of power (desviación de poder) declared herein affected the exercise of freedom of expression, not only with respect to RCTV’s employees and executives, but also with respect to the social dimension of that right (supra para. 136), that is, the public, which was deprived of access to the editorial perspective represented by RCTV.

Indeed, the true purpose was to silence voices critical of the government, which, together with pluralism, tolerance, and a spirit of openness, constitute the essential requirements of democratic debate that the right to freedom of expression is specifically intended to protect. It has therefore been proven that, in the present case, there was an indirect restriction on the exercise of the right to freedom of expression, resulting from the use of means intended to prevent the communication and circulation of ideas and opinions, when the State decided that it would reserve that portion of the spectrum and, consequently, prevent a media outlet that expressed voices critical of the government from participating in the administrative proceedings for the award of licenses or the renewal of its concession (concesión). For this reason, the Court declares that Articles 13.1 and 13.3, in relation to Article 1.1 of the American Convention, were violated to the detriment of Nombre76, Nombre77, Nombre78, Nombre79, Nombre80, Nombre81, Nombre82, Nombre83, Nombre84, Nombre85, and Nombre86” (emphasis not in the original).

It is clear from the underlined text that there was conduct intended to impede freedom of expression through the State’s decision not to renew the concession of a media outlet It is worth recapitulating the judgments in which the Inter-American Court of Human Rights did find a violation of Article 13.3 of the ACHR: In the case of “Nombre65 v. Peru,” it found that the Peruvian State had arbitrarily deprived Mr. Nombre65 of his nationality status in order to strip him of editorial control over the television channel that he managed, because the Peruvian legislation in force in 1997 required Peruvian nationality in order to own companies holding television-channel concessions in Peru. In the case [70] The Inter-American Court of Human Rights has repeatedly held that “for a violation of Article 13.3 of the Convention to be established, the method or means must actually and indirectly restrict the communication and circulation of ideas and opinions.” Ultimately, the aim is to prevent the existence or creation of obstacles to the free flow of information or opinion.

Therefore, if it is not shown that this free circulation was impeded, no violation of Article 13.3 of the ACHR is established. Moreover, all the cases have another common denominator: they concern measures imposed directly on the person or the media outlet. The rationale of that provision is that conduct which indirectly causes direct harm to freedom of expression is unlawful.

In the case at bar, by contrast, it was not shown what impact the issuance of a health order (orden sanitaria) and the related official communication (oficio conexo), which concern real property belonging to another business unit unrelated to the newspaper, had on the applicants’ freedom of expression. In other words, the requirement established by the Inter-American Court of Human Rights for a violation of Article 13.3 of the Convention has not been met: the indirect method or means must actually restrict the communication and circulation of ideas and opinions. I emphasize the word actually, meaning that the circulation of ideas and opinions must in fact or truly be restricted. In other words, the rationes of the judgments of the Inter-American Court of Human Rights cannot be invoked in the present case, because the factual framework deemed proven precludes this, as there has been no finding that the administrative acts alleged to be arbitrary—the health order and related official communication—actually affected the applicants’ freedom of expression.

In summary, the judgments of the Inter-American Court of Human Rights analyzed above—which were invoked by the applicants and/or by the majority of the Chamber—support the conclusion that a violation of Article 13.3 of the ACHR was found only when the indirect methods or means had a direct impact on the exercise of freedom of expression. By contrast, that case law cannot validly be applied to the case at bar as grounds for granting the application, because the acts at issue directly affect a business unit that also belongs to the group that owns the newspaper, but were not shown to have had a direct impact on the applicants’ exercise of freedom of expression.

Case Law of the Constitutional Chamber It is now appropriate to examine the constitutional case law invoked by the majority of the Chamber to demonstrate that the present matter follows the line of those judgments in which it was established that indirect means had caused direct harm to freedom of expression.

The first case cited by the majority concerned an application for amparo (recurso de amparo) that examined the conduct of a member of the Legislative Assembly, who sent letters to public institutions with the apparent purpose of requesting that they withdraw advertising from the media outlet. The applicant alleged that this should be regarded as influence peddling (tráfico de influencias), abuse of power, and prior censorship. The existence of the communications addressed to the public institutions was established; they contained the following statements: “I urge you to consider, as a responsible precautionary measure (medida cautelar), the possibility of taking off the air the institutional advertising for which you pay on this radio program while we resolve before the courts the complaint that we are about to file.” In ruling on the matter, this Chamber adopted the ratio of the judgments of the Inter-American Court of Human Rights and concluded:

“In this regard, censorship may be direct—for example, a direct prohibition against a particular publication—or indirect (also called soft censorship, subtle or concealed censorship)—for example, the use of various means to intimidate and thereby prevent publication. The Convention provides a non-exhaustive list of instances of censorship through indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, namely, ‘…or by any other means intended to impede the communication and circulation of ideas and opinions’ (…).

The request sent to the public institutions for the purpose of having them withdraw advertising from the protected party’s radio program falls within the category of indirect censorship of freedom of expression for several reasons.

First, advertising provides the principal financial support that makes it possible to broadcast radio programs and, ultimately, provides the livelihood of the people who work on that program. It is evident that limiting the program’s income may also harm it or even eliminate it, to the detriment of both freedom of expression and freedom of information. The situation described is even more serious in the case of small media outlets, such as local newspapers or small radio stations, whose financial stability may depend heavily on government advertising.” It should be noted that the advertising in question was disseminated through the applicant media outlet. It was income derived from the operation of the program, not from the activities of a separate business unit unrelated to it.

The judgment continues:

“Second, a member of the Legislative Assembly, Nombre01, is not an ordinary citizen, but holds particular political power because of his influence over the passage of bills, in which numerous private and public interests are involved. Ergo, a recommendation to withdraw, or the withdrawal of, advertising from a radio program, made by an official holding a particular position of political power and motivated by his disagreement with criticism of him broadcast by a particular media outlet, constitutes a concealed form of intimidation that not only affects the radio program directly targeted but also sends an intimidating message to other media outlets, fostering an environment hostile to the freedoms of expression and information that are essential in a democratic system. In the case at bar, that threat even produced concrete effects because, according to the evidence submitted by the claimant, the ICAA advertising placement scheduled for the period from October 15 to November 15, 2014, was suspended while a response was being prepared to the respondent’s official communication (…).

Accordingly, sending a communication to the program’s sponsors asking them to consider withdrawing their sponsorship because of the program’s negative content concerning his image constituted indirect censorship—under the terms set forth in the above-cited case law of the Inter-American Court—of the radio program ‘Rompiendo El Silencio.’ In this assessment, particular weight is given to the fact that the respondent holds a position of political power by virtue of his office as a member of the Legislative Assembly and that his letter actually caused a negative effect beyond a mere complaint, since it was established in the record that it affected one of the sponsors, which temporarily suspended its advertising (ICAA). Consequently, this claim is granted” (judgment 2015-1782; underlining in the original; bold underlining not in the original).

A careful examination of that decision shows that the majority of the Chamber that granted the application emphasized the fact that the threat had concrete effects, because an advertising placement scheduled for the protected party’s program was suspended. Thus, the conduct of the respondent legislator had a direct impact on the radio program’s income and advertising. The dissenting opinion, however, stated as follows:

“The only factual circumstance on the basis of which the majority of this Court found that censorship had occurred was that the Instituto Costarricense de Acueductos y Alcantarillados suspended its advertising placement (pauta) from October 15 to November 15, 2014, pending the response that would be provided to co-respondent Nombre132, when the fact is that the radio program remained on the air and continued to be broadcast because it had other sponsors. In any event, the Communications Director of that public entity reported that the advertising placement resumed on November 1, 2014. I consider such factual circumstances wholly and manifestly insufficient to establish direct or indirect censorship, which, as noted, never occurred. It must be borne in mind that, for a constitutional rights proceeding (proceso de amparo) to be granted or upheld, pursuant to Article 29 of the Ley de la Jurisdicción Constitucional, there must be a violation or threat of violation of the fundamental right invoked, which did not occur in the case at bar.

Additionally, it should be noted that prior censorship (censura previa) originates in acts or omissions by public authorities that exercise some type of control, or fail to do so, in order to prevent the dissemination of ideas, thoughts, and opinions, which did not occur in the case at bar. The foregoing is clearly illustrated, by way of example, in two landmark cases of the Inter-American Court of Human Rights concerning this subject, namely, the cases of ‘La última tentación de Nombre181 v. Chile’ and ‘Nombre65 v. Peru,’ in which, respectively, the motion picture could not be exhibited between 1988 and 2003 because of an administrative decision grounded in a constitutional provision, and the Peruvian citizenship of the owner of a television channel that broadcast a program criticizing the government was revoked by administrative decision, as a result of which the program ceased to be broadcast.

Ultimately, we are not faced with any unlawful suppression, whether total or otherwise, of freedom of expression. Nor is it possible to infer from the factual circumstance noted above the existence of an unlawful, indirect, or covert means or mechanism of censorship capable of producing such a result” (dissenting opinion [voto salvado] of Justice Nombre133 in judgment 2015-1782; emphasis not in the original).

That dissenting position is closer to the case law of the Inter-American Court of Human Rights (Corte IDH), insofar as it maintains that, for there to be a violation of Article 13.3 of the American Convention on Human Rights (Convención Americana sobre Derechos Humanos, CADH), there must be a direct and certain impairment of the freedom to disseminate ideas, thoughts, and opinions. In any event, however, it does satisfy another condition established by that case law: the conduct directly affects the petitioner.

Second, in the present matter, the majority of the Chamber cited the judgment in a constitutional rights action (recurso de amparo) challenging the Banco Nacional’s gradual reduction of its advertising placement in the newspaper La Nación. Under proven fact e) of that judgment, the following was recorded as duly established:

“e) During the first half of 2016, the Banco Nacional de Costa Rica ordered the gradual reduction of advertising placement in the pages of Diario La Nación. From the $732.402,54 United States dollars invested in 2014 and the $696.373,73 United States dollars invested in 2015, advertising placement fell to $123.347,47 United States dollars during the aforementioned period of 2016 (see documentation and report submitted under oath)” (judgment 2016-15220).

In this regard, after those facts had been established, the following considerations were set forth:

“In conclusion, with respect to this issue, it must be deemed established that, even though there may have been technical or objective reasons supporting a reduction in the Bank’s advertising placements in the newspaper La Nación, the fact remains that those reasons were not taken into account in ordering—as was in fact done—a suspension of the advertising contracted with that media outlet following publication of the first news reports in late February and, in particular, during June and July; rather, it has been established that those suspensions were intended to ‘bring about a change in the attitude’ of the newspaper La Nación regarding the manner in which matters relating to the Banco Nacional had been covered for several months. In short, it has been established in this case, as will be explained, that a public official engaged in indirect censorship (censura indirecta) of a media outlet in reaction to its editorial line, for the sole purpose of ‘encouraging’ a change—that is, manipulating the outlet to align it with his objectives, whether to secure a meeting with one of the outlet’s owners or to obtain greater coverage of the Bank’s position in response to the questions raised. All of this is undoubtedly in violation of Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Constitución Política (…).

The problem in this case arises, rather, when public enterprises depart from that course and manage their advertising placements for purposes unrelated to objective and technical considerations and incompatible with the constitutional framework of fundamental rights. It is at that point that the intervention of this Chamber becomes fully justified, and that is what this constitutional rights action seeks to confirm or rule out (…).

It is constitutionally objectionable that the General Manager of a public bank—that is, a public official—issued an order withdrawing advertising placement from a particular print newspaper without a valid objective and technical basis, but instead because of his disagreement with the manner in which news stories and reports concerning the activities and condition of the banking entity he represents were prepared. The Court finds that the foregoing constitutes indirect censorship, a clear attempt to influence the informational content of the media outlet, and also sends an intimidating message to the other media, fostering an environment hostile to the freedoms of expression and information that are essential in a democratic system (…).

That is precisely what has been established in this constitutional rights proceeding: the withdrawal of advertising during the first half of 2016, particularly in the months following the publications in late February, occurred in a context of confrontation with the media outlet, in which it was shown that the strategy was not based on objective criteria but was implemented, in the manager’s own words, to ‘encourage’ the newspaper to change its editorial line and news approach, instead of using the existing legal mechanisms, such as the right of correction and reply (derecho de rectificación y respuesta), if the information was considered inaccurate or offensive” (judgment 2016-15220; emphasis not in the original).

In the case cited, there were actions that directly affected the media outlet. Indeed, it was shown that there was a clear intention to reduce advertising placement, which is one of the sources of revenue supporting the newspaper protected through the proceeding. It bears emphasizing here that, although the Chamber did specifically protect the revenue received by the media outlet from advertising, that protection does not extend to any and all commercial activities of the media outlet’s owners merely because those activities also belong to them.

The majority of the Chamber in the present matter also refers to a case in which the petitioner alleged that an interview entitled “La violencia doméstica contra el hombre” was conducted on the program “Café Nacional” of the public company Radio Nacional de Costa Rica and that, subsequently, the director of Radio Nacional published an article entitled “Amarga vergüenza,” in which he warned that he would subject the topic of aggression against men to prior censorship and prevent it from being discussed again on Radio Nacional. This resulted in the interview being completely deleted from the Sistema Nacional de Radio y Televisión (Sinart) Internet portal and from its Facebook page. That judgment stated as follows:

“Applying the foregoing to the case at bar, the Chamber finds sufficient grounds to conclude that the protected parties’ statements were censored and that their fundamental rights were thereby violated. This conclusion follows from the express statements of the Director of Radio Nacional that a repetition of interviews such as that of the protected parties ‘will of course not happen’ and that he ‘would never have allowed this interview to air...,’ but that ‘...a situation like this will not happen again....’ The Chamber observes that the respondent party makes absolutely clear both the censorship that will apply to future interviews like the one challenged and his regret at not having censored the interview that took place. For this Court, there is no doubt that the transcribed statements constitute censorship, particularly because they came from the director of the media outlet through which the interview in question was broadcast” (judgment 2018-8396).

The foregoing likewise leaves no doubt that there was an explicit purpose to suppress the content that the protected party sought to make known, thereby warranting protection of his freedom of expression. Moreover, it appears instead to be an example of violations arising from a threat of censorship and from subsequent censorship (censura posterior), carried out through direct means; consequently, it is somewhat debatable whether the provision applicable to that case should be Article 13.3 of the CADH. But, once again, it should be noted that the arbitrary acts directly affected the person communicating the information.

The majority of the Chamber then refers to another judgment that found that Prodhab had interfered with the protected media outlet’s freedom of expression because that agency had ordered the removal of a person’s image from a specific news report that, in the Chamber’s view, was a matter of public interest and justified the use of the investigated person’s image. In relevant part, the following was decided:

“In this regard, censorship of freedom of the press may be direct—for example, the direct prohibition of a particular publication—or indirect (also known as soft censorship, subtle or covert censorship)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of instances of censorship through indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, namely, ‘...or by any other means tending to impede the communication and circulation of ideas and opinions’ (2015-1782).

The Chamber considers that the exercise of Prodhab’s powers for the purposes of the Ley de Protección de la Persona frente al Tratamiento de sus datos personales may not be used to censor the legitimate exercise of freedom of the press, because that would constitute indirect censorship, under state control, of a fundamental right essential to sustaining the democratic system.

In that regard, the Chamber considers that if the use of the image—in this case, a photograph of the passport page—occurs within the context of a newsworthy event of public interest, is included in a public document, and is directly related to the content of the news report—because it concerns a border-migration issue—and if its use, moreover, neither denigrates nor adversely affects its subject’s image, it is impermissible to separate or decontextualize that image from the news report, much less seek to remove it, because it is an integral part thereof” (judgment 2020-10961).

The decision granting that constitutional rights action was justified precisely because there was a direct restriction on the media outlet, and for that reason I joined the unanimous vote in that matter. It should be noted that here, too, the arbitrary act directly affected the newspaper.

The majority of the Chamber also invokes another judgment that I likewise joined. In that matter, it was established that the then Executive President of the Instituto Costarricense de Acueductos y Alcantarillados had made statements or issued instructions to employees of that institution directing them not to provide statements to two specific media outlets. In summary, the Chamber concluded as follows:

“Regarding this point, the Court considers that, in the sub examine, there is sufficient evidence that the Executive President of the ICAA uttered the phrase transcribed above, which plainly constitutes an infringement of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in connection with the constitutional principles of democracy, accountability, and transparency in public administration, because it amounts to a form of covert censorship, given that the practical result of such an appeal is to prevent the affected media outlets from gaining access to public information” (judgment 2020-016167; emphasis not in the original).

That quotation reveals a direct impact on the media outlets. That is, the employees of the aforementioned institution were urged to refrain from “feeding” or providing information to two specific newspapers.

The majority of the Chamber also cites the recent decision in judgment 2022-23107, which I also joined, whereby this Court was informed of an alleged message that the then Minister of Communication, Nombre103, sent by WhatsApp to all government ministers and executive presidents. It was alleged that, in that communication, the minister instructed all senior officials to suspend, as a matter of urgency, all forms of state advertising in the media outlets Amelia Rueda, La Nación, CRHoy and Canal 7. It was likewise alleged that they were urged therein, “as a matter of urgency, not to participate in interviews on Hablando Claro and Amelia Rueda.” Nevertheless, the amparo proceeding (recurso de amparo) was dismissed as to that claim because this Chamber was unable to deem it proven that the order or directive challenged by the appellant had been issued. However, as part of its reasoning, judgment 2015-1782, which was already mentioned at the beginning of this subsection, was invoked.

Lastly, it should be noted that, although it was not invoked by the majority, reference should be made to the recent judgment issued on 30 de setiembre de 2022, whose operative portion was adopted in the following terms:

“The proceeding is partially granted. Consequently, official letter N°MS-DM-6218-2022 of 22 de julio de 2022 is partially annulled insofar as it prohibits providing statements or information without first obtaining the respective approval of the senior officials of the Ministerio de Salud. That official letter remains undisturbed insofar as it concerns the handling of inquiries through an institutional email account (institutional spokesperson function). The respondent authorities are warned that, pursuant to article 71 of the Ley de la Jurisdicción Constitucional, imprisonment for three months to two years or a fine of twenty to sixty days shall be imposed on anyone who receives an order issued in an amparo proceeding that he or she must comply with or enforce and fails to comply with or enforce it, provided that the offense is not subject to a more severe penalty” (judgment 2022-23075; emphasis not in the original).

In that matter, the Chamber established that the official letter prohibited employees of the Ministerio de Salud from providing statements or information without first obtaining the respective approval of that ministry’s senior officials. This was deemed to constitute a restriction on freedom of information (libertad de información), and the official letter was partially annulled. It might also be debatable whether article 13.3 of the CADH applies to this case, but, if it did, it should be noted that the arbitrary act was aimed directly at restricting the free circulation of information that feeds the media.

In any event, all the judgments cited by the majority share the fact that a restriction on freedom in the flow of communication and ideas was established in some manner, whether through a reduction in the advertising that sustains the media outlet itself, through specific directives intended to eliminate news content, or through restrictions on public employees’ contact with particular media outlets. From my perspective, the rationes underlying those judgments are not applicable to the present matter. Indeed, as has been stated throughout these pages, no specific conduct intended to restrict the free circulation of information and the fundamental rights of the journalists seeking protection was established in this case. In other words, there is no evidence from which it could be asserted that the challenged acts prevented the appellants from carrying out their journalistic work, that is, from exercising their freedom of expression.

Therefore, because no specific restriction was established, the precedents invoked thus far are inapplicable. Had there been an infringement of that freedom, it would be appropriate to examine whether indirect means did in fact restrict it, but no such infringement is apparent here. Moreover—and this is particularly relevant—in every case in which the Chamber declared that the acts violated freedom of expression, those acts were directed against the communicator or the media outlet itself.

The light shed by that case law, from both the Inter-American Court of Human Rights and the Constitutional Chamber, provides a starting point for resuming the reflections set forth in the section concerning the absence of an infringement.

Additional reflections on the absence of a violation As I have stated, once it is established that there is no standing (legitimación activa), the merits of the matter should not be examined to determine whether the alleged infringement occurred. But even if there were standing, that would not suffice to grant the proceeding, because at least two conditions must be met: there must be an infringement of freedom of expression, and the acts must be arbitrary.

In light of the case law discussed above, I believe it is now even clearer that freedom of expression was not infringed in the present case because there was no impediment to “the communication and circulation of ideas and opinions.” As to the acts, it has already been stated that, in principle, an act must be arbitrary before the possibility that it is formally injurious may be raised. If the acts are inherently lawful, there could be no infringement of freedom of expression, but only harm that is not unlawful. As the judgment states in a passage that was transcribed in full and is quoted here insofar as relevant:

“[N]ot every act that negatively affects the sphere of a financial structure entails an alteration of the freedom under examination” (recital VIII).

Now, what would happen if the act were inherently lawful but had real and harmful repercussions on the newspaper’s financial stability that would make freedom of expression impossible or seriously hinder it, in the sense that independent journalism would not be possible?

To answer that question, article 3 of the LJC could be invoked:

Article 3. The Political Constitution shall be deemed violated when this results from comparing the text of the challenged provision or act, its effects, or its interpretation or application by public authorities, with constitutional rules and principles. (Emphasis not in the original).

The provision is more applicable in constitutional-review proceedings (procesos de control de constitucionalidad), but because it appears in the preliminary part of the law and refers to a “challenged act,” nothing prevents its use in proceedings for the protection of fundamental rights (procesos de garantías de derechos fundamentales), such as an amparo proceeding.

Thus, under that provision, inherently lawful acts could seriously and formally infringe freedom of expression, and their annulment could therefore be deemed appropriate.

However, I believe that the application of article 3 of the LJC has a limit. Or perhaps, more precisely, that same article, vigorously applied, is the key to clarifying its own limits.

First, it will be necessary to examine whether those harmful effects are unlawful, because even if they are detrimental, the acts causing them would not necessarily be arbitrary. Moreover, the issue is not merely to assess the specific effects of the acts on their direct recipient (Parque Viva), but also their effects in other spheres (the newspaper La Nación and, consequently, the appellants). In other words, it would be necessary to consider the effects that the challenged acts have on the other business unit (the newspaper). Even so, all indications are that the analysis must go further. Consideration must be given to the effects of concluding that the arbitrary acts are injurious because they affect another business unit and, presumably, by depriving it of financial support, curtail the appellants’ freedom of expression.

In the present matter, the parameters of the issue must be kept firmly in mind: there are two business units—Parque Viva and the newspaper La Nación—that belong to Grupo Nación but do not form part of a single production process. Each engages in distinct and wholly independent business activities, both in terms of their purpose (what they do) and the parties involved in them. Each business unit is subject to different rules across the various regulatory and management spheres.

As has been seen, article 13.3 of the CADH states that freedom of expression is infringed by indirect means when those means are “aimed at impeding the communication and circulation of ideas and opinions.” Furthermore, under the case law of both the Inter-American Court of Human Rights and the Constitutional Chamber, the acts must be directed against the communicating party (a natural or legal person). The question, then, is this: are acts directed against a business unit (Parque Viva) that is separate from the newspaper injurious to freedom of expression because they affect the newspaper’s financial health?

If the answer were yes—that is, if the acts were deemed arbitrary and injurious to freedom of expression because they affect the newspaper’s financial stability—what would be asserted is that the cause of the violation of freedom of expression is that impact on such stability. If that were truly so, it would be almost irrelevant whether the acts were inherently arbitrary, because it would suffice for them to affect financial stability in order for them to be deemed unlawfully injurious, since what would matter is whether the acts are unlawfully injurious because of their effects. From my perspective, adopting that position would have counterproductive consequences for society and, paradoxically, for the owners of Grupo Nación.

Again, the question is: Do the challenged acts directed against Parque Viva (which is a business unit engaged in a line of business unrelated to the media) affect the freedom of expression of La Nación’s journalists (which is the dependent business unit) because of?

This time, the answer adds another consideration: If the answer were yes, then it would have to be accepted that any act detrimental to Parque Viva’s financial health would infringe the freedom of expression of La Nación’s journalists by depriving the newspaper of financial support. Ultimately, as noted above, the cause of the unlawful injury would be the impact on the newspaper’s financial health. However, that does not appear reasonable for several interrelated reasons:

To facilitate the analysis, business unit A shall be understood as the one that has [71] First. Every natural or legal person would wish to have a business unit such as B, in order to enjoy a kind of impunity vis-à-vis the Administration with respect to business unit A, because that unit would always have to remain unharmed and protected from any financial impact proven to affect the activity of business unit B.

Second. There would be a danger that every lawful act of the Administration affecting business unit A, but proven to have a financial impact on business unit B, would be deemed unlawful because of its effects on the freedom of expression of those who work there. In other words, the Administration would face serious limitations in compelling compliance with the rules governing each line of business (giro comercial), because once Nombre182’s financial dependence on Nombre183 had been proven, everything would be reframed as an infringement of freedom of expression, including acts that are lawful in themselves.

Third. That danger could even entail a risk for the owner of business unit A, since, if the owner carries out a lawful act concerning that unit that affects the financial health of business unit B, the owner would be committing an act infringing the freedom of expression of the journalists who work in business unit B. The presumed impunity that business unit A would enjoy vis-à-vis the Administration becomes a source of the owner’s own horizontal and boundless liability toward the journalists who work in business unit B.

The foregoing would be so, but not its effects on the financial health of the dependent unit; and it would be understood that such an impact necessarily affects freedom of I wonder whether that theory withstands universal application. It seems that sooner or later it would lead to absurdity.

Moreover, it must be borne in mind that holdings or corporate conglomerates consist of parallel business units that are subject to the rules specific to the line of business in which they engage. Therefore, the same financial source does not permit rules from one business to be extrapolated to another: neither prohibitions nor protections[72] This is so much the case that, when one of the units goes bankrupt (provided that they are not part of the same production process, but rather [73] In this regard, the judgment states:

“[Nombre143]t should be noted that, like every person subject to the Administration, these structures are governed by and subject to the legal rules that regulate, specify, and delimit the conduct of their respective economic activities. In that regard, their operations must satisfy and comply with the regulations specific to their activity, which includes having the respective administrative authorizations (habilitaciones administrativas) to conduct the commercial activity” (judgment, recital VIII; emphasis not in the original).

This is also so because of the requirements of the principle of equality, since otherwise equals would be treated unequally. In other words, owners of media outlets who also own another company engaged in a different line of business would enjoy advantages in that other line of business over their competitors, as just explained.

It therefore appears that the application of an administrative act (acto administrativo) to one of the business units, even if it has a financial impac There is one final element worth discussing. Although it is not possible to provide a single, unequivocal answer because the issue has many facets, it is appropriate to ask whether format forms part of the essential core of freedom of expression, at least when that freedom is exercised through a media outlet. For this purpose, it should be recalled that freedom of expression entails, by definition, the State’s duty to refrain from acting: it must not prevent its exercise. And, under Article 13.3 of the CADH, it must be added that there is also an obligation to ensure that such exercise is not prevented [74] Grounds for granting the appeal with respect to freedom of expression The appellants (recurrentes) describe certain facts to prove the connection between the challenged subject matter and the alleged infringement. It appears that, for them, the importance of some of those facts is that they reflect the context in which that connection may be assessed. However, I consider that some facts are significant in themselves. They will be analyzed here to determine whether they constitute direct violations of freedom of expression.

Legal and jurisprudential framework Two provisions must be taken into consideration. First, Article 29 of the Political Constitution provides:

Article 29. Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; however, they shall be liable for any abuses committed in the exercise of this right, in the cases and manner established by law.

Second, insofar as relevant, Article 13 of the CADH provides:

Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of borders, whether orally, in writing, in print, in artistic form, or through any other medium of their choice.

2. The exercise of the right provided for in the preceding paragraph may not be subject to prior censorship, but shall be subject to subsequent liability, which must be expressly established by law and necessary to ensure: a) respect for the rights or reputation of others; or b) the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted through indirect methods or means, such as the abuse of contto prevent the communication and circulation of ideas and opinions.

4. Public entertainment may be subject by law to prior censorship solely for the purpose of regulating access to it for the moral protection of children and adolescents, without prejudice to the provisions of paragraph 2.

5. Any propaganda in favor of war and any advocacy of national, racial, or religious hatred that consti shall be prohibited by law The Constitutional Chamber has a robust body of case law emphasizing that respect for freedom of expression is one of the indispen[75] “VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—although not the only one—necessary for democracy to function. This freedom permits the creation of public opinion, which is essential for giving co[76], such as, for example, the right to information, the right of petition, or rights relating to political participation; the existence of free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions is a necessary prerequisite for building a social dynamic involving the exchange of knowledge, ideas, and information, allowing consensus to be generated and decisions to be made among the members of the various social groups, while also providing a channel for expressing dissent, which is as necessary as agreement in a democracy.

In turn, the exchange of opinions and information arising from public discussion contributes to the formation of personal opinion; together, they constitute public opinion, which ultimately manifests itself through the channels of representative democracy” (judgment 2006-5977; emphasis not in the original; these considerations have been repeatedly reiterated by the Chamber, for example, in judgments 2015-1782, 2018-8396, 2019-8263, and 2020-16167).

That judgment continues with a passage particularly relevant to the analysis that follows immediately:

“Freedom of expression results in the prohibition of every form of censorship, in two respects: first, participants cannot be censored; and second, the possible content of the discussion generally cannot be censored in advance either: in principle, all subjects may be discussed in a democracy. The freedom of persons from censorship is virtually universal, as established by our Constitution; no one may be deprived of the freedom to speak and express themselves as they see fit. Although the freedom of content from censorship does not apply in advance, it is subject to certain limitations; however, those limitations must be such that freedom remains meaningful and is not emptied of its substance. Essentially, like every freedom, it must be exercised responsibly, ultimately in pursuit of legitimate aims within the system” (ibid.; emphasis not in the original).

In other words, censorship—understood as the act of condemning—is described as an act contrary to freedom of expression. Put differently, it is affirmed that the consequence of that freedom is the prohibition of every kind of censorship. Thus, there is not only prior censorship, which is expressly prohibited by Articles 29 of the Constitution and 13 of the CADH; there may also be subsequent censorship intended to suppress certain informational or opinion content. It is also stated that protection against censorship extends not only to persons (those who communicate), but also to content (what is communicated).

Moreover, although it does not follow from those lines of case law, I consider that other criteria could be added to complete a typology of censorship. Thus, based on its appearance, it may be covert or overt; based on the means used to impose it, it may be direct or indirect (for example, as provided in Article 13.3 of the CADH); and based on its effects, it may be absolute (if the condemnation occurs concurrently with suppression) or relative.

Finally, the Chamber has succinctly stated:

“The Chamber recalls that the defense of freedom of expression is vital to the functioning of a democratic system” (judgment 2017-014977; emphasis not in the original).

Naturally, I fully agree with that case law, and I have joined many other subsequent judgments that strengthen that line of reasoning (see judgments 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, among others).

Factual framework A reading of the allegations shows that the appellants consider the administrative acts to be the final link in a chain of statements threatening freedom of expression. As I have said, they refer to those statements to illustrate a context and demonstrate the connection between the health order (orden sanitaria)—and the related official communication—and the infringement of freedom of expression. In my view, however, it is necessary to pause and examine which statements by Nombre138 Nombre01—not only those alleged, but also those that are matters of public and notorious fact and may unquestionably be considered part of that context—could in themselves constitute direct infringements of freedom of expression.

This examination must be governed by procedural requirements: timeliness (temporalidad), active standing (legitimación activa), passive standing (legitimación pasiva), and so forth. Accordingly, only events occurring from the time Mr. Nombre138 assumed office (because he was not previously a public official) until the present amparo appeal (recurso de amparo) was filed (29 de julio de 2022) may be analyzed.

That is why two particularly significant statements are excluded: the statement of 29 de enero de 2022, in which he refers to media directors by name, and that of 3 de agosto de 2022, in which he calls journalists “fauna” and states that one of the species is “rats.” The term “prensa canalla” warrants special mention. In this regard, the appellants state:

“In our case, as is public and notorious, in addition to the constant use of the word ‘scoundrel,’ an insult intended to delegitimize and intimidate the press and encourage the government’s supporters to repudiate it, which is dangerous in itself” (filing initiating the proceedings, p. 6).

However, it is an established fact that since taking office, the president has not used that word, at least not publicly. Therefore, this point must also be excluded from the examination.

Nevertheless, two observations are appropriate. First, it is true that no particular person has been called a scoundrel, but when one says “the press,” this refers not only to the company or media outlet as such, but also to those who practice journalism within it. Second, it is difficult to find a more demeaning term. The Dictionary of the Royal Spanish Academy states:

Nombre148: From the Italian canaglia, itself derived from cane, dog.

1. f. colloq. Low, vile people.

2. f. obsolete. Pack of dogs (?a multitude of dogs).

3. m. and f. A despicable person of bad conduct.

It is obvious that no one deserves to be described in that manner.

Nor are the statements made at the July 9 press conference or the one on July 20, 2022 taken into account, since they refer to the owners of Grupo Nación, not specifically to the petitioners.

For purposes of this analysis, however, it is sufficient to confine the examination to the press conference of July 13, 2022. On that occasion, Nombre138 stated the following:

1:13:26 “Freedom of the press in Costa Rica is in good health. It has a Government that will defend it at all costs. Has any media outlet been shut down? Has any journalist been detained? Has any printing press been stopped? Obviously not.” In this regard, it should be noted that Nombre138 appears At that press conference, Mr.

1:16:46 “Article 50 of the Political Constitution, which I swore to defend (…), requires me to make officials do what La Nación dishonestly and deceitfully says is an attack on freedom of the press” [the text highlighted in italics was spoken with vocal inflection, in a mocking and ironic tone].

1:17:25 “In 2017, a media outlet that is not part of this category, this species, this group, published internal emails from Parque Viva saying (…) ‘we have a serious problem here and we need to start fixing it’” [the text highlighted in italics with [77][78][79] 1:18:08 “Grupo La Nación has not only lied to the public. It has defamed the homeland; it has defamed Costa Ricans before the international press and community, (…) asking little favors of its partners and friends in the Inter-American Press Association to defend petty interests.” 1:18:50 “What La Nación should have done, instead of defaming this blessed homeland where freedom of the press is guaranteed, was to start working hard and honestly to 1:19:49 “Did you hear the blatant lie published by La Nación? (…) which has spent two years requesting access for Dirección01 (…) La Nación says: We accuse them!: This is an attack on freedom of the press because they move quickly.

Is this what Costa Rica has come to?” 1:23:56 “Whom does Grupo La Nación defend?… freedom of the press or its own interests?” 1:28:00 “Because they believe they are above the law….” 1:28:26 “I would give the last of my blood to protect the freedoms of our people, including the freedom to lie and spread disinformation that they have gladly and frequentl[80] exercised.” 1:29:50 “You, La Nación, are free to work. You should be ashamed of defaming your country (…).” I would have liked to have had a normal press conference (…), but the amount of ink, the number of minutes on television channels that have been devoted to misinforming you, ma’am, you, sir, and you, young person, at home, in your car, wherever you may be listening to this, was too much (sic), and this is my right of reply, because I do not believe those media outlets (you know the word; I am going to keep it to myself) have granted me the right of reply, because they denied it to me in the past (…).

I know that this is a series of impassioned, forceful expressions and reflections. I know that the people of Costa Rica are not accustomed to seeing a Nombre138 tell Grupo de La Nación that they believe themselves to be crowned kings, crowned Costa Ricans. But this is a new era. Here, all of us are equal in freedom and respect, with absolute freedom of expression, even when what is said consists of lies; but freedom of expression does not mean that someone may lie blatantly and that the government and the persons offended must remain silent.” (The highlighted text is what is considered relevant).

Observations concerning the statements These statements reflect the context of tension following the temporary closure of Parque Viva between the president and Grupo Nación and the newspaper La Nación. They refer to identifiable persons, some of whom are the petitioners in this amparo proceeding (amparo).

Those statements were made publicly and in his capacity as Nombre138 Nombre01, that is, by the person holding the highest office. This means that his conduct, in itself, has enormous reach and significance A vehement style is not in itself harmful. Nevertheless, extremely bellicose words and tone may be harmful, because they destroy the peaceful climate necessary for the free exchange of ideas in a democratic society. This is even more so when the statements discredit specific individuals or a particular editorial stance.

As stated in one of the judgments transcribed above, this Chamber has held:

“Freedom of expression entails the prohibition of every form of censorship, in a twofold sense: first, the participants in a discussion may not be censored; and second, the possible content of the discussion generally may not be censored in advance either: in principle, in a democracy, all subjects are open to discussion. The freedom of individuals from censorship is practically universal; as our Constitution establishes, no one may be deprived of the freedom to speak and express themselves as they see fit” (judgment 2006-5977; emphasis in the original).

This means that any statement amounting to censorship, even if its effects are only relative rather than absolute because it did not prevent the subsequent dissemination of the condemned ideas, constitutes a direct violation of freedom of expression. Freedom of expression requires respect for those who dissent and entails facilitating the communication of ideas without discrediting either the speakers or the content.

The petitioners deserve respect, first, because of the dignity inherent in their status as persons. Indeed, safeguarding that dignity is the purpose of every State governed by the rule of law (Estado de Derecho). They also deserve respect by virtue of being journalists, whose work is particularly important in a pluralistic and democratic society.

Certainly, Nombre138 Nombre01 also enjoys freedom of expression, but because he is a public official, that freedom is limited by the duties inherent in his office: respect for the Constitution and the laws, for the dignity of others, and for expressions of criticism and dissent.

In that regard, the Political Constitution states:

Article 140. The following duties and powers are jointly vested in Nombre138 and the respective Government Minister:

To maintain the order and tranquility of the Nation and take the measures necessary to safeguard public freedoms.

Thus, safeguarding public freedoms—which include freedom of expression—is a task constitutionally assigned to the president. The provision also refers to order and tranquility, which are necessary not only in the realm of public security but also for the peaceful coexistence inherent in a democratic system. Therefore, provoking or contributing to a climate of verbal violence directed against journalists who disagree with his views appears to be an affront to the atmosphere of social peace that he must promote.

A different issue is whether that climate of violence is magnified by other social actors, but that exceeds the scope of these pages.

It is now appropriate to distinguish and analyze three particularly relevant passages:

First. Those in which he calls the journalists liars.

It is not appropriate to rule on who is correct regarding the merits of the matter (I have repeatedly stated in the dissenting opinion that, in my view, it should have been heard by the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa)), but it is clear that, within a democratic and pluralistic society, it is unacceptable to call a person who disagrees a liar, because doing so—in addition to being degrading—stifles public debate and discourages the free circulation of ideas and opinions. Therefore, if a person or group of persons is believed to be untruthful and that is considered to have significant consequences, in addition to saying so publicly but without engaging in censorship, the avenues provided by the legal system may readily be used to resolve the matter. But discrediting people in such a bellicose manner is not a solution, much less in a democratic society.

The function of journalism is to communicate what is understood to be truthful and just. For that reason, calling journalists liars means describing them as lacking a quality that, by virtue of their profession, they should possess. In other words, when directed at journalists, that adjective acquires a particularly pejorative connotation and is unquestionably a form of censorship.

Second. Those in which he asserts that La Nación, and therefore the journalists who work for that outlet, have defamed the homeland and Costa Ricans.

The context is as follows. The closure of Parque Viva was a newsworthy event reported by prestigious Latin American newspapers under the following headlines:

“Government of Costa Rica closes Parque Viva following Nombre51’s attack on the newspaper ‘La Nación.’” “Government of Costa Rica closes Parque Viva amid Nombre138’s attacks on the newspaper ‘La Nación.’” “The government of Costa Rica attacked one of the country’s leading media outlets and then closed a stadium owned by that company.” Thus, Nombre138 believes that the fact that those and other media outlets reported the closure of Parque Viva from a perspective consistent with that of La Nación and its journalists resulted from representations made by them to those outlets. If that were so, why would it be objectionable? Both the journalists of La Nación and those of other media outlets are entirely free to report the news from their own perspective. And why is it reprehensible for the newspaper La Nación and its journalists to seek alliances beyond the country’s borders? This conduct is natural, logical, and understandable, and does not in itself appear to constitute “defamation” of the homeland or of Costa Ricans, among other reasons because neither “homeland” nor “Costa Ricans” are categories or terms synonymous with “government.” Once again, such serious discrediting of the petitioners constitutes censorship that curtails their exercise of freedom of expression.

Third. The passage in which he says that the statements made at that press conference were an exercise of his right of reply, which he believes had been denied to him.

It is worth noting that in that passage he does not utter “the word”: “You know the word; I am going to keep it to myself”; but it is not unreasonable to assert that he is alluding to the word he has avoided saying since becoming Nombre138 Nombre01. This is so for three reasons: omitting it does not mean that he is not alluding to it; he omits it because it is derogatory; and “the word” appears unequivocally to evoke a word that everyone else knows is the one he once said also referred to the newspaper La Nación. But since the foregoing is merely a trio of conjectures, it is enough to address another aspect of that passage: the presumption that the newspaper would not honor his right of reply (derecho a respuesta). In that regard, it must be said that such reasoning undermines the foundations of the rule of law (Estado de Derecho), since it amounts to taking justice into one’s own hands. It is another matter for the head of state to deem it appropriate, at the press conference, to offer clarifications and explain the reasons for his disagreement with the newspaper; but it is not legally proper for this to be justified on the presumption that the newspaper and those who work there would fail to comply with Articles 66 et seq. of the LJC concerning the right of correction and reply (derecho de rectificación y respuesta).

Those statements Of course, any authority—and certainly the president—may use the forums available to him to clarify, challenge, or deny what journalists have said; but the proper course is to do so respectfully, as befits a pluralistic society and accords with our democratic tradition.

Regarding this last point, it is striking that there is practically no case law on this subject. Perhaps this is because, to date, it has never been customary in this country for public officials to engage in censorship of this nature, whether against journalists from La Nación or those from [81][82][83] Because, for procedural reasons, it is not possible to examine the other statements, which are publicly and notoriously known facts and form part of the aforementioned context of tension, it is likewise not legally possible for me to rule on whether or not there is a pattern of conduct in this regard.

Conclusion

It may be concluded that the statements made by Nombre138 on July 13 at the press conference, which form part of the context described by the petitioners, constitute instances of direct and manifest, albeit relative, censorship and therefore directly violate the petitioners’ freedom of expression. Accordingly, I consider that the petition for constitutional relief (recurso de amparo) should be granted on this issue.

VI. Reflections on the case file and the judgment

Because I do not rule on the challenged administrative acts (actos administrativos)—namely, the health order (orden sanitaria) and the related official communication (oficio)—since I consider that this Chamber lacks jurisdiction to examine them in this proceeding for constitutional relief, I will not address those administrative acts themselves, that is, whether or not they are arbitrary. Nevertheless, I believe it appropriate to make several observations regarding the case file (expediente) and the judgment. This will confirm what was stated in the dissenting opinion (voto salvado), in which I maintain that a proceeding for constitutional relief was not the proper proceeding for resolving this matter.

The dilemma: turning constitutional relief into an ordinary proceeding or respecting its summary nature This case placed the Constitutional Chamber in a dilemma: distort the nature of the proceeding for constitutional relief by transforming it into an ordinary proceeding—which is colloquially referred to as “turning constitutional relief into an ordinary proceeding” (“ordinariar” el amparo)—or decide the case without all the necessary elements. It appears that the majority sought, insofar as possible, to preserve the summary nature of the proceeding. Indeed, although this judgment is lengthy, there are grounds for concluding that the review of the challenged acts suffered from two types of shortcomings: one concerning the evidence and the other concerning the parties brought into the proceeding. I will now demonstrate this.

Regarding evidentiary matters It must be recalled that a proceeding for constitutional relief is summary by nature. In the words of the Chamber—which, incidentally, uses this language every week in its summary dismissals (rechazos de plano)—this means the following:

“[The purpose of the proceeding for constitutional relief is to provide timely protection against infringements of or threats to fundamental rights and freedoms, not to serve as a generic mechanism through which actions may be brought against any other type of constitutional or legal violation. Consequently, the admissibility of a proceeding for constitutional relief is generally conditioned not only on proof of a disturbance—or threat of disturbance—of one or more of the rights or guarantees recognized in the Political Constitution or in the international human-rights instruments signed by the country, but also on the alleged harm entailing a direct and gross threat to or violation of those rights that endangers the portion of their content that is essential and inherent to them—that is, the core that gives them their distinctive character and makes them recognizable as rights of a particular nature.

In legal doctrine, the foregoing is known as the minimum essential content of the right (contenido mínimo esencial del derecho), which is violated, for example, when the exercise of a right is made conditional upon compliance with conditions, prerequisites, or requirements of such a nature that, in practice, they make its exercise materially impossible or ineffective. In this regard, constitutional case law has specified that the issue of direct and indirect violations of the Constitution also necessarily entails an assessment of the suitability and expeditious nature that must characterize the constitutional-relief procedure. It has been stated that ‘…in essence, the basic idea may lie in distinguishing between a direct and an indirect violation of fundamental rights. Under sound constitutional doctrine, the criterion is based on the proposition that any breach of legality in matters related to those rights may eventually cause a violation of those fundamental rights; but when the violation is merely indirect, because there are bodies within the state apparatus that can and must safeguard those rights and remedy their violation, those bodies, rather than this Chamber, have jurisdiction to hear the matter…’ (Judgment N° 1610-90 of 15:03 on December 9, 1990).

This last point highlights why a proceeding for constitutional relief is eminently summary in nature—that is, brief and straightforward—and why its processing is incompatible with lengthy and complex evidentiary proceedings or with the need first to determine—through declaratory proceedings—whether the subconstitutional rights cited by the parties as part of the factual basis of the proceeding for constitutional relief or the legally required report (informe de ley), as applicable, actually exist” (judgment 2021-001965; emphasis not in the original; these lines of case law are constantly repeated by this Court; for some examples, see judgments 2018-18079, 2019-17891, and 2020-12053).

Nevertheless, because of the characteristics of the acts challenged here, a rigorous analysis and comparison of extensive technical evidence and the opinions of the respondent authorities (autoridades recurridas) were necessary, namely: the permits granted by the Permit Unit of the MOPT General Directorate of Traffic Engineering; the conditions under which the Ministry of Health granted health operating permit (permiso sanitario de funcionamiento) MS-DRRSCN-DARSA2-RPSF-0177-2019; the occupancy authorizations (autorizaciones de aforo) issued by the Ministry of Health’s Alajuela 2 Health Governing Area—official communications MS-DRRSCN-DARSA2-4070-2021 of December 16, 2021 and MS-DRRSCN-DARSA2-0163-2022 of January 20, 2022—; inspection record (acta de inspección) MS-DRRSCN-DARSA2-1639-2022 and inspection-results report MS-DRRSCN-DARSA2-1641-2022 of July 5, 2022, issued by the Alajuela 2 Health Governing Area; MOPT official communication DVT-DGIT-2022-339, which addressed road conditions in the area and unequivocally stated that, when mass-gathering events are held, the road providing access to Parque Viva lacks sufficient capacity to handle the resulting traffic; and the technical opinions of the experts on the Technical Advisory Committee for Mass Gatherings, which includes, among others, representatives of the Comisión Nacional de Emergencias, the Benemérito Cuerpo de Nombre140, and the Cruz Roja Costarricense.

It should also be recalled that the health order was initially issued “until such time as the technical opinions issued by the Benemérito Cuerpo de Nombre140 de Costa Rica and the Benemérita Cruz Roja Costarricense regarding the capacity of the access road to that establishment for the first-response units of those institutions—which opinions are being obtained by the Ministry of Health—are available for analysis and for the corresponding actions to be taken.” Moreover, it was necessary to assess various technical opinions gathered by the competent authorities. These include the following, which appear relevant: official communication MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of July 10, 2022, signed by the regional deputy director of the Dirección de la Fuerza Pública de Alajuela, which indicates that the Fuerza Pública “has been facing impediments in responding to police incidents in the immediate outer perimeter of Parque Viva, located in Rincón Chiquito in the district of La Guácima de Alajuela, at times when events are hel All of these reports are mentioned in the judgment, but the judgment contains no detailed assessment of them, as would surely have been appropriate given what the majority set out to do when examining the challenged acts: determine whether, if the act was not arbitrary, even though harm to the petitioners resulting from that act had been proven, there would be no basis for granting the petition on the ground that freedom of expression had been violated.

It may therefore be stated that, if the merits were to be examined, the analysis o Regarding the parties brought into the [84] A reading of the judgment reveals the absence of many persons somehow involved in the litigatio?.

Many of those authorities could have been joined as respondents, since, as is known, in the processing of a proceeding for constitutional relief, the bod[85][86][87] Thus, many of the authorities mentioned could have participated as respondents or simply as reporting parties—in the context of evidence obtained to better decide the case (prueba para mejor resolver). This is true even if the record contained official communications signed by those authorities.

In that regard, other authorities could also have contributed to the analysis of the issue. These include, for example, the Contraloría General de la República, which issued a report on the effectiveness and efficiency of the Municipalidad de Alajuela’s use of resources for the cantonal road network; the Ministerio de Seguridad Pública and, in particular, the Dirección General de la Fuerza Pública, because of their highly unequivocal technical reports. The same could be said of the Instituto Nacional de Vivienda y Urbanismo (INVU), which issued a report, and even of the Secretaría Técnica Nacional Ambiental, which stated that the Parque Viva premises had obtained environmental approval (viabilidad ambiental) solely for improvements to the racetrack.

In order to conduct a thorough analysis of the situation presented, it would have been necessary to examine matters that do not properly fall within a remedy of amparo (recurso de amparo), for example: the legitimacy of an anonymous complaint; the alleged irregularity in the diligence and haste of the administrative conduct; the necessity, timeliness, and advisability of issuing a health order (orden sanitaria) to protect human life and health, with the collection of additional technical evidence confirming the decision also being required; the scope of the health order and the related official letter (oficio conexo); the validity of the health permits and compliance with the occupancy limits established by the Ministry of Health authorities; the authority of those officials to order the submission of a proposal to improve traffic flow for the holding of mass events; and the responsibility of private companies for resolving traffic-gridlock problems arising from commercial activities carried out by those companies themselves.

It would also surely have been necessary to assess the proper oversight of urban development and the issuance of health and construction permits in the area in question. Additionally, to determine the objective causes It must be borne in mind that the petitioners argue that the health order was enforced arbitrarily, even though technical assessments from the Cruz Roja and the Cuerpo de Bomberos concerning the capacity of the establishment’s access road were not yet available, and that those assessments were submitted and communicated several days after that order was issued and are, moreover, open to question. Those assertions confirm that the allegations and relief sought required a full proceeding (juicio plenario) in which, after all relevant evidence had been received, it would also have been possible to analyze the objections raised regarding the technical reports[88] Everything I have stated here, as is apparent from the title of this subsection, reveals the severe dilemma faced by this court: to “channel into ordinary proceedings” the remedy of amparo, so as to receive and examine all relevant evidence, or to rule without all the elements necessary to conduct a rigorous and detailed analysis of the issue, as it required.

The latter was so because what was at stake was not only safeguarding the freedom of expression alleged to have been infringed, but also the inhabitants’ right to have their health, physical integrity, and lives protected.

In my dissenting opinion (voto salvado), I have shown that this dilemma could have been resolved simply by the Chamber respecting the summary nature of the amparo proceeding, thereby continuing its well-established case law on the matter. It would thus have declared that this dispute should have been brought through the ordinary legal channels. Now, a careful reading of the judgment confirms for me that, in order to determine with certainty whether the challenged acts were arbitrary, unfounded, or disproportionate—as the majority of the Chamber maintains—the proper course was for this matter to be decided in ordinary proceedings, following a comprehensive examination of the situation and of all the evidentiary elements outlined here. Because the challenged subject matter was analyzed in a summary proceeding such as amparo, various elements of proof and argument that would have been necessary to reach the conclusion presented in the judgment are unfortunately absent. As I have said, at a minimum, all parties involved in establishing the technical basis for the challenged health order should have been joined, and the technical arguments invoked in that administrative act should have been specifically refuted.

It is worth emphasizing that, in the majority’s view, the respondent authorities, when issuing the health order, should have “conducted an appropriate balancing and adopted the measure least burdensome to fundamental rights, fostering a balance among them and limiting the impact upon them to a minimum.” Nevertheless, the judgment does not first demonstrate the specific extent to which the health order had affected the fundamental rights of the journalists protected by amparo, that is, whether it had any actual impact on their freedom of expression.

Finally, it is entirely justified for the petitioners and the judgment to take into account statements made by Mr. Nombre138 when he was a candidate, since this helps contextualize the alleged violations. It is striking, however, that the judgment considers statements made by the President after the date on which the remedy of amparo was filed.

The consequences of annulling the challenged acts The majority of the Chamber ordered the annulment of health order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022, as well as the provisions of official letter MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, which confirmed it.

This returns the situation concerning the access problems at Parque Viva—which are publicly known, have been denied by neither the petitioners nor the property owners, and are reflected in the large number of technical reports cited—to the point at which the complaint was filed with the Ministry of Health authorities. Consequently, if any incident occurs that affects public health or the physical integrity of individuals, it appears that responsibility will be shared by the majority of the Chamber.

I reiterate that both the examination of the legitimacy of the challenged acts and the balancing of the legitimate rights and interests of residents and users could readily have been carried out before the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa). This is also because, through the exercise of interim-relief jurisdiction (justicia cautelar), measures could have been ordered there to modulate the effects of suspending the act and impose conditions intended to protect third parties. In the case at hand (sub lite), the administrative acts were simply annulled, without any conditions that might in some way have safeguarded those rights and interests.

The judgment refers, on the one hand, to progress on a plan to resolve traffic congestion and, on the other, in annulling the challenged acts, provides no admonition concerning the need to complete implementation of the measures that would definitively resolve that problem. Including at least such an admonition would have had symbolic value: it would have shown that the Chamber is aware that a genuine risk exists for the residents and users of Parque Viva.

Regarding the scope of the award of dama Finally, I will offer a few comments regarding the award of damages (condenatoria en daños y perjuicios). As will be recalled, in the initial petition the petitioners stated that they waived such damages. Of course, if the remedy was granted, the Chamber is not legally authorized to omit that award. Certainly, however, a claim for such damages may be waived. Moreover, in light of the initial petition and the logic of the judgment, the award must be understood as benefiting only the petitioners and as being solely for the infringement of freedom of expression that is decl[89]

VII. Conclusion

In view of the arguments set forth above, I rule as follows on this remedy of amparo: I grant it with respect to freedom of expression, because statements by the respondent were established that constitute acts of direct, manifest, albeit relative, censorship that infringe the petitioners’ freedom. I deny it with respect to the annulment of the health order and the related official letter because, in addition to the lack of proof of standing (legitimación activa), those acts may not be reviewed in this jurisdiction.

Nombre134 1 [1] Article 29. Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; they shall, however, be liable for any abuses committed in the exercise of this right, in the cases and manner established by law.

[2] Article 13. Freedom of Thought and Expression.

1. Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, whether orally, in writing, in print, in the form of art, or through any other medium of one’s choice (…).

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment and devices used to disseminate information, or by any other means intended to impede the communication and circulation of ideas and opinions.

[3] Article 11. Public officials are mere custodians of authority. They are required to perform the duties imposed upon them by law and may not arrogate to themselves powers not granted by it. They must swear to observe and comply with this Constitution and the laws. An action to hold them criminally liable for their acts is public. The Public Administration, in the broad sense, shall be subject to a procedure for evaluating results and ensuring accountability, with the resulting personal liability of officials in the performance of their duties. The law shall establish the means by which this oversight of results and accountability shall operate as a system encompassing all public institutions.

[4] Article 33. Every person is equal before the law, and no discrimination contrary to human dignity may be practiced.

[5] They subsequently make further arguments along the same lines, which will be transcribed in the dissenting opinion.

[6] Brief reference will be made to these in the separate reasons.

[7] In light of the requested relief, they must be understood as referring to the order and the related official letter. Hereinafter, any reference to the health order also includes the related official letter.

[8] In this regard: Article 38 of the LJC. A remedy of amparo shall state, as clearly as possible, the act or omission giving rise to it, the right considered to have been violated or threatened, the Nombre141 of the public official or body responsible for the threat or violation, and the evidence supporting the claim. // It shall not be necessary to cite the constitutional provision infringed, provided that the right violated is clearly identified, unless an international instrument is invoked. // The remedy is not subject to any other formalities and shall not require authentication. It may be filed by written petition, telegram, or another written means of communication, for which telegraphic franking shall be availabl [9]e.

Article 42. If the remedy is unclear, such that the act giving rise to it cannot be established, or if it does not meet the stated requirements, the petitioner shall be directed to correct the defects within three days, and those defects must be specifically identified in the same ruling. If they are not corrected, the remedy shall be summarily dismisse [10]d.

Article 48. Everyone has the right to the remedy of habeas corpus to guarantee personal freedom and integrity, and to the remedy of amparo to maintain or restore the enjoyment of the other rights enshrined in this Constitution, as well as the fundamental rights established in international human-rights instruments applicable to the Republic. Both remedies shall fall within the jurisdiction of the Chamber referred to in article [11]0.

Article 2. The constitutional jurisdiction is specifically responsible for: 1. Guaranteeing, through the remedies of habeas corpus and amparo, the rights and freedoms enshrined in the Political Constitution and the human rights recognized by the international law in force in Costa Ri [12]a.

Hereinafter, at least in this section, references to fundamental rights shall be understood also to refer to public libertie [13]s.

Those considerations have been repeated verbatim in at least 1734 rulings of the Sala Constitucional. Cf. https://nexuspj.poder-judicial.go.cr. And, to the same effect, among very many others, see judgments 2006-3919, 2017-17948, 2021-18328, 2021-273 [14]2.

Moreover, this judgment is recent, demonstrating that this line of precedent (línea jurisprudencial) spans the entire history of this court. Even more recent judgments to the same effect could readily be found. Cf. https://nexuspj.poder-judicial.go [15]cr Article 44 of the LJC. (…) Reports shall be deemed to have been given under oath ( [16]).

Among many others, see judgments 1995-4169, 2000-5401, 2022-0022 (reiterated during 2022 in at least 16 judgments), 2022-59 [17]1.

The judgment states: “In this regard, it should be emphasized that this Sala has also held that health orders (órdenes sanitarias) issued by the authorities of the Ministerio de Salud may be reviewed in this jurisdiction in exceptional cases, specifically identified by their unavoidable and direct relationship with the fundamental freedoms or rights essential to sustaining the democratic system” (recital (considerando) IX, point A, p. 19 [18]).

I state this not because the journalists of La Nación are first-class citizens while others are not, but because the arguments and publicly known and notorious facts reveal tension between the newspaper La Nación and Nombre138 de la República, and that is neither a minor fact nor one that may be overlooked. It must specifically be assessed in the context of the necessary protection of freedom of expression in a democratic and pluralistic State [19].

I say this because I believe there were sufficient grounds to dismiss the writ (recurso) at that stage; however, even if it were considered that those doubts should be resolved in favor of the petitioners (recurrentes), as will now be seen, the Sala could have determined at the merits stage that it lacked jurisdiction. That is part of the core of this partial dissenting opinion (voto salvado parcial) [20].

The matter of standing as respondent (legitimación pasiva) is set aside because it is not particularly relevant to the present case: it is unquestionable that the respondents (recurridos) have it [21].

They add “and the right of Costa Ricans to receive information and opinions on matters of public interest” (petition initiating the proceeding (escrito de interposición), p. 1), but that right is not subject to protection through a writ of amparo (amparo), because the Sala Constitucional has always required that the protected parties (amparados) be identified persons or, at least, clearly identifiable; and the category “Costa Ricans” is excessively broad and would turn the writ of amparo into a public-interest action (acción popular). Presumably, because this is legally self-evident, the judgment does not even address it; but I have preferred to do so. Moreover, that recently quoted phrase is rendered in the order admitting the case for processing (auto de curso) as follows: “the public’s right to obtain information of interest to society” (order admitting the case for processing, 29 de julio de 2022, p. 12), which is also recorded in finding of fact (resultando) 1 of the judgment. It is a different matter that freedom of expression inherently has a collective dimension, but that is not the dimension protected through a writ of amparo. The existence of that dimension serves—and this is no small matter—to underscore the importance of respecting the individual dimension of journalists’ right to freedom of expression [22].

All the foregoing is reiterated in whole or in part in various judgments. By way of example, see judgments 2017-2350, 2018-1210, 2019-11129, 2020-228 [23].

To avoid unduly lengthening the quotations, a large portion of the passages in which—as noted—the Sala, when deciding the merits, reiterates what it stated in those dismissals has been omitted [24].

Article 7. The Sala Constitucional shall have exclusive authority to rule on its own jurisdiction, as well as to hear incidental matters (cuestiones incidentales) arising before it and related preliminary issues (prejudiciales conexas) [25].

Article 9. The Sala Constitucional shall summarily dismiss any application (gestión) that is manifestly inadmissible or unfounded. // It may also dismiss it on the merits at any time, including upon its filing, when it considers that sufficient grounds for judgment exist, or that it merely reiterates or reproduces an identical or similar prior application that was dismissed; in the latter case, provided that it finds no grounds for changing its position or reasons of public interest warranting reconsideration of the matter. // It may likewise grant the application by interlocutory decision (interlocutoriamente) when it considers it sufficient to base the decision on evident principles or rules, or on its own precedents or case law; however, in the case of writs of habeas corpus or amparo, it must await the respondent’s defense [26].

Article 153. In addition to the functions assigned to it by this Constitution, the Poder Judicial shall hear civil, criminal, commercial, labor, and administrative-litigation cases (causas contencioso-administrativas), as well as such other cases as may be established by law, regardless of their nature or the status of the persons involved; render final decisions in them and enforce the rulings it issues, with the assistance of law enforcement if necessary [27].

That judgment contains many other dense and interesting passages that are also relevant, but, for the purposes at issue here, only those particularly significant passages have been transcribed [28].

Articles 128 et seq. of the LGA [29].

Articles 140 et seq. of the LGA [30].

Article 10. 1) The following shall have standing to bring an action (legitimación para demandar): a) Those who allege an impairment of legitimate interests or subjective rights (derechos subjetivos) (…). 4) Any interested party whose legitimate interests or subjective rights have been affected may request a declaration, recognition, or restoration of a legal situation, with or without monetary compensation [31].

Article 31. 1) Exhaustion of administrative remedies (agotamiento de la vía administrativa) shall be optional, except as provided in articles 173 and 182 of the Constitución Política.

(The first article concerns municipal resolutions, and the second states: Article 182. Contracts entered into by the Poderes del Estado, the Municipalidades, and autonomous institutions for the performance of public works, purchases made with funds belonging to those entities, and sales or leases of property belonging to them shall be conducted through competitive bidding (licitación), in accordance with the law as regards the applicable amount [32].

Article 31. Neither a motion for reconsideration (reposición) nor any other administrative appeal shall be required to file a writ of amparo [33].

Article 21.- Interim relief (medida cautelar) shall be appropriate when the implementation or continuation of the conduct subject to the proceeding causes serious actual or potential harm or damage to the situation alleged, provided that the claim is neither frivolous nor manifestly lacking in seriousness [34].

Article 22.- In granting or denying any interim relief, the respective court or judge shall give particular consideration to the principle of proportionality, weighing the potential harm to the public interest, the harm and damage caused to third parties by the relief, and its instrumental and provisional nature, so that neither the entity’s substantive administration nor the legal situation of third parties is seriously affected. // The court or judge shall also take into account the financial possibilities and provisions that the Administración Pública must arrange for the implementation of the interim relief [35].

Article 23. Once interim relief has been requested, the respective court or judge may, on its own motion or at a party’s request, immediately and prima facie adopt and order highly provisional measures (medidas provisionalísimas) to ensure the effectiveness of the relief ultimately adopted. Such measures must bear the necessary connection to the subject matter of the proceeding and the requested interim relief.

Article 24. 1) The court or the respective judge shall give the parties up to three days to respond regarding the application for relief, except as provided in the following article of this Code. 2) Once that period has elapsed, the court or the respective judge shall issue the appropriate ruling, unless it deems an oral hearing necessary, in which case it shall hold one within no more than three business days [36].

See, as examples, the following rulings: TCASVI250-2010: upheld the preventive protection (tutela preventiva) of the environment against the potential impacts that implementation of the amendment to a Land-Use Plan (Plan Regulador) could cause; TCASII 108-2016: upheld interim relief in support of sustainable development and the right to a healthy and ecologically balanced environment (disputed lands); TCA 552-2020: suspended the decrees related to the public-health vehicle restriction; TACASI 17- 2018: reversed the TCA ruling denying interim relief and instead ordered the suspension of the effects of a tariff safeguard measure on imports of milled rice [37].

TCA (number unknown), issued at 21:10 on 07 de octubre de 2022: immediately suspended the effects of the decree entitled “Reforma Arancel de Servicios Profesionales de Consultoría para Edificaciones y Reglamento de Tarifas de Honorarios para los Profesionales de Agrimensura, Topografía e Ingeniería Topográfica” (professional fees). Merely for informational purposes, it should be added that, after the vote on the present amparo, other similar rulings were issued: TCA (number unknown) of 28 de octubre de 2002 (Expediente 22-005972-1027-CA); and TCA 671-2022 of 3 de noviembre de 2022 (Expediente 22-005678-1027-CA), which suspended the effects arising from Decreto Ejecutivo N°. 43704-JP-MEIC of 14 de setiembre de 2022 (professional fees of male and female attorneys [38].

Article 82. 1) The judge shall order and conduct all necessary evidentiary proceedings (diligencias de prueba) to ascertain the substantive truth of the facts relevant to the proceeding. 2) The means of proof (medios de prueba) may include all those permitted under public law and ordinary law. 3) Evidence may be recorded and submitted in the proceeding through any documentary, electronic, computer-based, magnetic, optical, or telematic medium, or any medium produced by new technologies. 4) All evidence shall be assessed in accordance with the rules of sound judicial evaluation (sana crítica). 5) Evidence contained in the administrative record (expediente administrativo), regardless of its nature, shall be assessed by the judge as documentary evidence, unless challenged by the adversely affected party through the appropriate legal means [39].

Article 60.

• 1)If the processing judge (juez tramitador), acting sua sponte or at the request of any party, considers that the matter under consideration is urgent or necessary or is of great importance to the public interest, the judge shall refer it directly to the trial court to which it is assigned in turn, so that the court may decide whether to grant it expedited processing (trámite preferente), under the terms of this article, by means of a reasoned ruling against which no appeal shall lie.
• 2)If the court determines that expedited processing is not appropriate, it shall return the proceeding to the processing judge so that it may be handled under the ordinary procedure.
• 3)If expedited processing is granted, the complaint shall be served and a mandatory period of five business days shall be allowed for the response. When necessary, the court shall order a single hearing at which it shall consider and rule on the matters referred to in Article 90 of this Code, take the evidence, and hear the parties’ closing arguments. If there is no evidence to be taken, the oral and public hearing shall be dispensed with. A new hearing may be held only when new facts arise or the evidence must be supplemented in the court’s judgment.
• 4)Scheduling the hearing shall take priority on the court’s calendar.
• 5)If conversion of the proceeding occurs at a procedural stage subsequent to that governed by the third paragraph of this article, the court shall make the corresponding adjustment to the rules of that paragraph.
• 6)Judgment shall be rendered within a maximum period of five business days, counted from the day after the decision was made to grant the proceeding expedited processing or, as applicable, from the holding of the final hearing.
• 7)If filed, disposition of the appeal on points of law (recurso de casación) shall take priority on the calendar of the Tribunal de Casación de lo Contencioso-Administrativo or the Sala Primera de la Corte Suprema de Justicia, as applicable. The appeal shall be resolved within ten business days [40] To these, another provision of the Constitution could be added: Article 70. A labor jurisdiction shall be established under the Judicial Branch [41].

For example, the electoral amparo proceeding (recurso de amparo electoral) originated in judge-made law, although it was later provided for in the Electoral Code; jurisdiction over administrative delay, after the enactment of the CPCA, is left to the contentious-administrative jurisdiction (jurisdicción contencioso-administrativa); the examination of various labor matters, following the Labor Procedural Reform, is assigned to that jurisdiction; matters concerning informational self-determination, following the entry into force of the corresponding law, are referred to the Agencia de Protección de Datos de los Habitantes (Prodhab); among other [42].

Article 46. 1. For a petition or communication submitted pursuant to Articles 44 or 45 to be admitted by the Commission, the following shall be required: a) that the remedies available under domestic jurisdiction have been pursued and exhausted, in accordance with generally recognized principles of International Law [43].

Article 46. 2. The provisions of subsections 1(a) and 1(b) of this article shall not apply when: a) the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights alleged to have been violated; b) the party alleging violation of his or her rights has been denied access to the remedies under domestic jurisdiction, or has been prevented from exhausting them; and c) there has been unwarranted delay in rendering a decision on the aforementioned remedie [44].

It will later be seen that this, in turn, belongs to Mediu [45].

Other arguments made along the same lin [46] will subsequently be transcribed.

The phrases in single quotation marks come from Inter-American Court of Human Rights. Case of Nombre136 v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series Nombre143 No. 194, paragraph 139, according to the same filing instituting the proceeding [47]notes.

MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 and 66, respectiv [48]ely.

https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financiero [49].html In all three cases, the latest are those for the 202 [50]-2021 period.

The latest is the one for the second half of [51] 2022.

Informe de Accionistas 2020-2021 (whose Nombre141 within the text is Informe Anual La Nación y Subsidiarias - 2020-2021), MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 and 66, respec [52]tively.

Nom re06 [53]., p. 65 Nombre06 [54]., . 67.

Nombre06 [55]., p. 66.

MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), (2 20, p. 67; 202 [56], p. 66).

AF-INFORME ANUAL-LN- 2018-19.pdf - Google Drive (2018, p. 64; 2019, p. 71). MEMORIA 2020-2021_DIGITAL.pdf (nacion.com) (2 20, p. 67; 202 [57], p. 66).

Recall what they say and what was previously transcribed at the appropriate point: “…we were warned of the destruction of the structures that allow us to practice independent journalism. // Parque Viva is one of those structures in the case of Grupo Nación” (filing instituting the proceedin [58]g, p. 4).

Definition of the iura novit curia principle - Diccionario panhispánico de español juríd [59]co - RAE See ruling 1990-290 (constitutional consultation), judgment 1992-3410 (action of unconstitution [60]ality), To facilitate the analysis, we shall assume that both challenged acts are equally arbitrary or equally non-arbitrary; that is, not that one is arbit rary and the other [61]is.

The United States Supreme Court has applied this principle to decide cases concerning freedom of expression (United States v. Nombre135, 1968) and freedom of religion (Employment Div. Dep. of Human Resources v. Nombre07 [62]mbre184, 1990).

There is certainly also the possibility that the Administration may incur liability for lawful conduct, but that is wholly exceptional. In this regard, Article 194 of the LGAP provides: 1. The Administration shall be liable for its lawful acts and normal operations when they cause special harm to the rights of the person subject to the Administration (administrado), due to the small proportion of persons affected or the exceptiona l severity of the injur [63]y.

Inter-American Court of Human Rights. Nombre136 v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Ser [64]ies Nombre143 No. 194.

It refers to that case solely with respect to the limits on statements by public officials in a demo cratic society. Cf [65]. judgment, p. 266.

Inter-American Court of Human Rights. Case of Nombre65 v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001. Ser [66]ies Nombre143 No. 74.

Inter-American Court of Human Rights. Case of Nombre67 v. Paraguay. Merits, Reparations and Costs. Judgment of August 3, 2004. Se [67]ries Nombre143 No. 111.

In a very similar vein, see Inter-American Court of Human Rights. Case of Nombre137 v. Chile. Merits, Reparations and Costs. Judgment of Novemb er 22, 2005. Se [68]ries Nombre143 No. 135.

Inter-American Court of Human Rights. Case of Nombre144 et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judg ment of January 28 [69], 2009. Series Nombre143 No. 195.

Inter-American Court of Human Rights. Case of Nombre162 et al. (Radio Caracas Televisión) v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 2 [70], 2015. Series Nombre143 No. 293.

Incidentally, in our country, pursuant to Article 49 of the Political Constitution, review of a specific administrative act (acto administrativo) falls to the contentious-administrative jurisdiction, as explained in the dissenting opinion (voto salvado). In passing, I wish to recall that, if the aim was to prove the misuse of powers (desviación de poder) alleged by the petitioners, particularly in a context as technically complex as that under lying the present [71]amparo proceeding, amparo was not the appropriate avenue.

Naturally, if all interests are to be balanced, the effects of the act or its annulment on other rights of third parties (life, personal integrity, health) and on the public interest should also be weighed; but, for purposes of these reflections, I w ill focus attention on [72]the effects on freedom of expression.

On the assumption that the newspaper is financially dependent on Parque Viva and that the act s affecting the latte [73]r have financial consequences for the former.

They are arbitrary or unlawfully harmful. (The intrinsic arbitrariness that they may pos sess because they lack a [74]ny of the elements required for the act’s validity is not being considered here.)

The requirements for validity: the substantive elements, both subjective—jurisdiction (competencia), standing (legitimación), and lawful appointment (investidura)—and objective—grounds (motivo), content, and purpose—and the formal elements—statement of reasons (motivación), procedure employed, and the forms in which the act is expressed. See Articles 128 et seq. of the LGAP. Regarding the requirements for effec [75]tiveness, see Articles 140 et seq. of the LGAP.

Article 13.1 of the ACHR certainly states: Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and disseminate information and ideas of all kinds, regardless of frontiers, whether orally, in writing, in print, in the form of art, or through any other medium of one’s choice. (Emphasis not in the original.) However, I believe that this does not contradict the reflections set forth above, since an analysis of the matter would appear to require clarification of the scope of that article regarding freedom of expression generally and freedom of infor mation or opini [76]on exercised as a commercial activity.

Moreover, as will be recalled, the two judgments of the Chamber concerning the withdrawal of advertising as an indirect means of infringing freedom of expression have in common that the arbitrary acts directly affected the persons communicating: in one case, a radi o program (2015-1782) and, in th [77]e other, the newspaper La Nación (2016-15220).

There is no doubt that journalists inherently have standing to bring proceedings (legitimación activa) with respect to injuries caused through direct mean s, even if they did not expressly allege them.

[78] Recorded in the judgment as a proven fact, u [79]nder the subtitle other relevant facts 2).

Press conference of August 3, minute 44:22 et seq. Cf. (1794) Live | Press C onference of the Cons [80]jo de Gobierno August 3, 2022 - YouTube Hereinafter, the time of the remarks during the July 13, 2022 press conference held at Casa Presidencia will be noted in this manner. Cf. (1792) Live | Press C onference of the Cons [81]jo de Gobierno July 13, 2022 - YouTube El Universal, Mexico, July 8. https://www.eluniversal.com.mx/mundo/gobierno-de-costa-rica-cie ra-parque-viva-tras-a [82]aque-de-Nombre51-al-diario-la-nacion.

El Comercio, Peru, July 8, https://elcomercio.pe/mundo/centroamerica/gobierno-de-costa-rica-cierra-parque-viva-en- edio-de-ataques-del-p [83]esidente-al-diario-la-nacion-noticia/ Nación, Argentina, July 9, https://www.lanacion.com.ar/el-mundo/el-gobierno-de-costa-rica-ataco-a-uno-de-los-principa es-medios-del-pais-y- [84]uego-cerro-un-estadio-de-nid09072022/ Note that this judicial precedent itself quotes one dating from 1990, that is, from the very earliest period in the Chamber’s history, and others expressing the sam e view could readily be found, i [85]ncluding ones predating the cited decision.

See the judgment’s proven facts:

6, 10, 11, 16, 18, and 2 [87].

Proven fact 23 of the judgment.

See th e judgment’s proven facts:

[88]26, 27, 28, 29, 30, and 31.

This last situation, which is more exceptional, occurs when the body, based on the information available to it, considers that there is some other aspect, perhaps only briefly mentioned by the parties, that is connected to the subject matter of the issue and that must be addressed. In that situation, it shall again grant the parties a heari ng so that they may state their positions on the

SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las trece horas y treinta minutos de veintiuno de octubre de dos mil veintidós.

RESULTANDO:

Recurso de amparo interpuesto por Nombre01, cédula de identidad CED01, Nombre02, cédula de identidad CED02, Nombre03, cédula de identidad CED03, Nombre04 , cédula de identidad CED04, Nombre05, cédula de identidad CED05, Nombre06, cédula de identidad CED06, Nombre07, cédula de identidad CED07, Nombre08, cédula de identidad CED08, Nombre09, cédula de identidad CED09, Nombre10, cédula de identidad CED10, Nombre11, cédula de identidad CED11, Nombre12 , cédula de identidad CED12, Nombre13 , cédula de identidad CED13 y Nombre14 , cédula de identidad CED14, todos periodistas, contra la PRESIDENCIA Nombre01 y el MINISTERIO DE SALUD.

RESULTANDO:

1. 1Por escrito aportado a la Sala los recurrentes interponen recurso de amparo y manifiesta que el 29 de enero de 2022, el entonces candidato a la presidencia, Nombre15, expresó ante un grupo de seguidores reunidos en Tibás, la siguiente promesa: “(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Nombre16, óigame el otro (...) Nombre17, óigame Nombre18. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)”. Acotan que, a menos de dos meses de juramentado, el 6 de julio de 2022, el Nombre138 Nombre139 comenzó a materializar la amenaza. Indican que luego de semanas de violentos ataques verbales contra la prensa y los periodistas, a quienes calificó como “canallas”, aprovechó la conferencia de prensa después del Consejo de Gobierno para sembrar dudas sobre la salud financiera de Grupo Nación.Señalan que puso en incertidumbre la capacidad de la referida sociedad para pagar los bonos comprados por la Caja Costarricense de Seguro Social (CCSS) y hasta insinuó el debilitamiento de la garantía de la deuda por el futuro traspaso de algunos terrenos de la empresa a un fideicomiso para hacer un prometedor desarrollo inmobiliario. Agregan que el 5 de julio de 2022, la Ministra de Salud recibió una “denuncia anónima” atinente al Parque Viva, por lo que dicha jerarca solicitó un criterio urgente al Ministerio de Obras Públicas y Transportes sobre la calle de acceso al parque, que es una vía pública. Relatan que, al día siguiente, la Ministra de Salud recibió respuesta y de inmediato se celebró una sesión extraordinaria del Comité Asesor Técnico en Concentraciones Masivas, solo para conocer el caso y retirar el permiso de funcionamiento. Discuten que el informe se emitió sobre las vías públicas fuera del parque, no sobre las instalaciones o sus accesos.Aseveran que el informe de los inspectores del Ministerio de Salud, fechado 5 de julio de 2022, no evidenció incumplimiento alguno en las instalaciones de Parque Viva, documento en el que se omitió emitir criterio sobre las calles públicas aledañas, por no ser de su competencia. Arguyen que el 8 de julio de 2022, el Ministerio de Salud propinó un nuevo golpe a la “estructura” mediante la emisión de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 atinente a la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva. Cuestionan que la referida medida se dictó sin previo aviso y sin la posibilidad de ejercer el derecho a la defensa; además, se ejecutó mientras se recababan criterios técnicos del Cuerpo de Nombre140 y la Cruz Roja en relación con la capacidad de la vía de acceso al citado establecimiento por las unidades de primera respuesta de esas instituciones. Enuncian que la orden sanitaria ejecutada el viernes 8 de julio de 2022 exigió a la empresa aportar un plan remedial que abarque “la solución a la problemática de los accesos”.Sin embargo, afirman que, según el acta, los inspectores del Ministerio de Salud no encontraron problema alguno con los accesos. Aseguran que, al momento del cierre, el Parque Viva contaba con todos los permisos al día y con un renovado visto bueno de los aforos emitido por el Ministerio de Salud el 16 de diciembre de 2021. Incluso, el 20 de enero pasado, se amplió el aforo, mediante un oficio del Ministerio de Salud. Señalan que en declaraciones publicadas el 13 de julio de 2022 por La Nación, el Alcalde de Alajuela afirmó que los permisos concedidos en el 2014 coinciden con el inicio de un rápido desarrollo habitacional de la zona y no se puede atribuir a Parque Viva la causa de los congestionamientos viales. Mencionan que en asamblea comunal celebrada el 13 de julio de 2022, el regidor y residente de La Guácima, Nombre19, señaló que las presas en la zona se dan “(…) con Parque Viva y sin Parque Viva (…)” y dijo estar “(…) muy contento de que haya pasado lo de Parque Viva, porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días (…)”.Explican que el 15 de julio de 2022, luego de las críticas formuladas públicamente y en un recurso de revocatoria interpuesto por la empresa, el Ministerio de Salud emitió un nuevo acto administrativo, con las mismas consecuencias del primero y con una clara intención de rectificar sus deficiencias más obvias, especialmente en cuanto a los criterios técnicos. Detallan que el documento No. MS-DRRSCN-DARSA2-1724-2022 confirmó la orden sanitaria No. MS-DRRSCN-DARSA2-05-0368-2022 y procuró dar la apariencia de perseguir fines públicos legítimos. Estima que lo descrito ha implicado un claro propósito de limitar la libertad de expresión por medios indirectos. Arguyen que es más que evidente la amenaza de destruir a las empresas, como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos, mencionados con Nombre141 y apellido en el discurso del 29 de enero de 2022 pronunciado por el actual Nombre138 Nombre01.Indican que la promesa, tal y como se constata en el video aportado como prueba, es destruir las “estructuras” temerariamente calificadas como corruptas, para castigar la supuesta invisibilización de lo bueno y la divulgación de lo malo. La amenaza se dirige a los directores periodísticos de los medios, cuya función se limita a lo editorial. Añaden que en esa ocasión se mencionó a un accionista de Canal 7, Nombre17, a quien el mandatario increpó por una línea editorial, cuya independencia los propietarios de los medios profesionales se han comprometido a respetar. Detallan que el disgusto del entonces candidato se debía a la publicación de informaciones de evidente interés público sobre las sanciones de las que había sido objeto en el Banco Mundial por acoso sexual, así como de la crítica a otras propuestas y declaraciones, como la de gobernar mediante referendo. Aseveran que luego el enojo del Nombre138 aumentó con motivo de la información publicada sobre las estructuras paralelas de financiamiento de la campaña política de su partido y otros temas, como las referencias a un fraude electoral que la democracia costarricense no toleraría.Expresan que lo anterior se trató de publicaciones periodísticas serias, bien documentadas y pertinentes, de manera tal que el hecho de no difundirlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público, así como el principio del votante informado. Afirman que como consecuencia del cumplimiento de ese deber y el ejercicio de ese derecho, a los directores y colaboradores periodísticos se les advirtió de la destrucción de las estructuras que permiten ejercer el periodismo independiente. Sostienen que Parque Viva fue una de las estructuras de periodismo independiente de Grupo Nación que resultó afectada como consecuencia de la amenaza emitida por el actual mandatario. Al respecto, pormenorizan que Parque Viva fue creado para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de entradas experimentada por los medios de comunicación en todo el mundo, debido a la migración de la publicidad hacia los gigantes de la internet.Este hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menos el año 2013. Mencionan que Parque Viva fue creado como una fuente complementaria de ingresos, menos dependiente de la venta de publicidad. Por ende, se invirtieron importantes recursos y esfuerzos en la creación del citado Parque. Indican que el Nombre138 lo sabe perfectamente y como economista también conoce el daño que puede causar a una empresa poniendo en duda la capacidad de pago a los inversionistas. Afirman que esto fue precisamente lo que hizo el Nombre138 en la conferencia de prensa celebrada dos días antes del cierre del Parque Viva con el evidente propósito de cumplir su promesa de destruir las estructuras que permiten a los recurrentes ejercer libremente el periodismo. En este caso, el golpe lo dirigió a la estructura financiara del Grupo Nación, y confesó haber sido él, personalmente, quien pidió al Nombre138 Ejecutivo de la CCSS formular preguntas a Grupo Nación mediante la Superintendencia General de Valores (SUGEVAL), en lugar de acudir directamente al emisor de los bonos adquiridos por esa institución en el mercado de valores; lo anterior, sin conocimiento de Grupo Nación, contrario a lo que estipula la ley.Agregan que luego, sin esperar la respuesta a las preguntas, dedicó una conferencia de prensa a informar que las había formulado en defensa de la pensión de “la abuelita”. Aluden que cuando el Nombre138 ejecutivo de la CCSS reconoció el cumplimiento de los pagos, el mandatario lo calificó de “diplomático” y tornó la palabra para insistir en la desinformación y en las insinuaciones. Manifiestan que la novedad de la conferencia de prensa fue el anuncio de la presentación a la Nombre02 de las preguntas que la CCSS pudo haber formulado sin intermediarios a la empresa. Declaran que quedó claro que el accionar del mandatario no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar la libertad de expresión porque “la práctica habitual de inversionistas institucionales” es consultar directamente al emisor y valerse de la información publicada por mandato de ley.Al respecto, señalan que se debe tomar en cuenta que la Nombre02 contestó a la CCSS que debía formular sus consultas directamente a La Nación S.A.; además, se recordó que la información sobre la situación legal, financiera y de negocios de un emisor autorizado, así como de los valores que ofrecen, pueden accederse en el Registro Nacional de Valores e Intermediarios. Revelan que nunca antes un Nombre138 se había ocupado personalmente de la suerte corrida por inversiones de una institución pública que ninguna autoridad financiera ha cuestionado. Tampoco ningún mandatario había dedicado buena parte de una conferencia de prensa presidencial a informar que se le formularon preguntas al emisor mediante SUGEVAL, en lugar de hacerlo directamente. Describen que el cierre de Parque Viva, dos días después de la conferencia, se dispuso para ver “si a La Nación se le ahorca el flujo de caja”. Exponen que en el caso Nombre136 vs. Venezuela, la Corte Interamericana de Derechos Humanos se ocupó de expresiones semejantes, pronunciadas desde la palestra del poder, para limitar de forma directa o indirecta la expresión y difusión del pensamiento, en los siguientes términos: “(…)139.En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento.Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado. (…)”. Alegan que en su caso, como es público y notorio, además del constante uso de la palabra “canalla”, que constituye una injuria para deslegitimar, amedrentar y estimular repudio a la prensa entre los seguidores del gobierno, las irresponsables referencias a la salud financiera de Grupo Nación envuelve manifestaciones que han resultado ser contrarias al criterio emitido por la Corte Interamericana de Derechos Humanos, conforme lo señalado anteriormente. Afirman que el Presidente, según lo dicho por la Corte, debe hacer esta referencias “(…) con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos (…)”.Sostienen que la prueba de la arbitrariedad está en las manifestaciones mismas: anuncian inusitadamente el planteamiento de una serie de preguntas y, sin esperar respuesta, lanzan al aire afirmaciones, especulaciones e insinuaciones infundadas, falsas y temerarias. De otra parte, acusan que en este caso hay una clara desviación de poder y deviene en arbitraria la suspensión del permiso sanitario otorgado a Parque Viva. Exponen que con las medidas adoptadas no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en intimidar a un medio de comunicación para que no ejerza libremente su derecho a informar. Apuntan que esos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino también al medio de información en el que laboran, por ende, se les lesiona su derecho a informar. Afirman que este es el verdadero fin que tienen los actos adoptados.Indican que las actuaciones resultan arbitrarias, precipitadas, discriminatorias y absurdas y son distantes de la tutela a los fines públicos. Anotan que el cierre del Parque Viva se ejecutó a partir de una “denuncia anónima” contra instalaciones abiertas hace más de cuatro décadas para albergar el autódromo La Guácima. Aclaran que Parque Viva ya tiene más de siete años de operar en el sitio, sin ningún incidente, al amparo de permisos y patentes oportunamente concedidos por las autoridades competentes sobre la base de estudios exigidos en su momento. Incluso, confirman que la inspección más reciente concluyó que las instalaciones son idóneas para las actividades celebradas en el lugar; no obstante, la Ministra de Salud solicitó un criterio “urgente” sobre la capacidad de la vía pública que conduce al parque y “preventivamente” canceló en tiempo récord el permiso de funcionamiento del sitio.Mencionan que la premura de las actuaciones con intervención directa e insistente de la Ministra ante una denuncia anónima con petición de criterios urgentes, inspecciones instantáneas y reuniones de emergencia, llama la atención por inusual. En lo que atañe a las vías públicas, señalan que las calles aledañas son las mismas de los estudios iniciales exigidos hace años para tramitar los permisos del Parque Viva, lo que denota que el establecimiento ya estaba en el sitio cuando comenzó la explosión inmobiliaria de la zona. Puntualizan que, desde el 2014, se ha aprobado la construcción de 44 condominios y otras edificaciones. Refieren que el Estado creó el problema con su anuencia a la vertiginosa expansión urbanística de la zona sin proveer la infraestructura pública necesaria. Narran que hace pocos días, la Contraloría General Nombre01 publicó una “auditoría operativa sobre la eficacia y la eficiencia en el uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela”, en cuyo informe se concluyó, entre muchas cosas lo siguiente: “(…) En relación con la ejecución de recursos para la atención de la RVC, se identificó que en el periodo 2019-2021 la Municipalidad ejecutó en promedio el 36,48% de los recursos asignados por año, en otras palabras, quedaron ociosos un total de ¢4.870,61 millones, ¢4.874,56 millones y ¢7.947,83 millones por año, respectivamente.Lo expuesto muestra la ineficiencia en el uso de los recursos pese a las necesidades existentes en cuanto a la mejora de superficie de ruedo, atención de puentes y aceras. (…)”. Asimismo, el informe señaló: “(…) En complemento a lo anterior, el porcentaje de ejecución promedio del periodo 2019-2021 reflejado por la Municipalidad (36,48%), alcanza niveles muy inferiores al promedio de ejecución de las ocho municipalidades consultadas por la Contraloría General, el cual es de 85,47% (…)”. Ante tal panorama cuestionan: ¿A cuánto más asciende la sub ejecución desde el 2014, cuando se estableció Parque Viva y el Alcalde marca el inicio del desarrollo acelerado? Comentan que en los tiempos en que operaba en el lugar el autódromo La Guácima, se llevaron a cabo múltiples eventos masivos y únicamente existía una salida, sin que se diera ningún inconveniente. Acotan que en la actualidad el Parque Viva tiene cuatro salidas.Afirman que, en septiembre de 2014, cuando el Alcalde sitúa el inicio del desarrollo habitacional de la zona, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial de Parque Viva. El parque obtuvo todos los demás permisos, sin faltar uno, y sobre esa base la empresa invirtió más de $40 millones, amparada al principio de confianza legítima y a la seguridad jurídica garantizada por el orden constitucional. Discuten que, a pesar de lo anterior, de pronto, el Estado procede a cancelar el permiso de funcionamiento, anular los legítimos réditos de la inversión, después de dos años de cierre por la pandemia, y exige a un particular un plan remedial para los defectos de la vía pública so pena de clausura o grave daño a sus ingresos. Aseveran que es obvio que lo pretendido por las autoridades recurridas es destruir “(…) sin razón ni derecho, las “estructuras” que no permiten ejercer a decenas de periodistas, una función indispensable para la sociedad y un derecho humano inviolable (…)”.Mencionan que el 16 de diciembre de 2021, el mismo funcionario del Ministerio de Salud que recientemente suspendió el permiso sanitario de funcionamiento de Parque Viva, fue quien dio su visto bueno a los aforos de los diversos sectores del establecimiento. Entre ese momento y la actualidad, el único cambio en el Ministerio ha sido la conducción política que ahora tramita con urgencia denuncias anónimas, ejecuta suspensiones de permisos sin proceso ni derecho a la defensa y exige planes remediales a los particulares y no a todos, solo a uno, para los embotellamientos en la vía pública. Explican que son contadas las ocasiones en las que se dan presas en el sector a causa del Parque Viva, toda vez que la mayor parte de las actividades no atraen tanto tráfico y se llevan a cabo de noche o en fines de semana. Puntualizan que en el 2022 solo ha habido nueve conciertos y de ellos únicamente dos atrajeron más de 7000 personas.Por otra parte, aluden que en el Parque Viva hay un proyecto avanzado para contribuir a remediar el problema por cuenta de Grupo Nación, para beneficio propio y de toda la comunidad. Exponen que la idea es construir un acceso de cuatro carriles para el cual ya se adquirieron los terrenos y se tramitaron la mayoría de los permisos; sin embargo, esa propuesta está paralizada en una comisión de permisos del MOPT, mientras el gobierno alega la necesidad de un plan remedial preparado por quien precisamente le ha planteado una solución que no le cuesta un centavo al gobierno. Empero, ilustran que en conferencia de prensa del 13 de julio de 2022, el Nombre138 Nombre01 planteó un argumento lleno de falsedades, para anunciar oposición al proyecto, al expresar: “(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la Dirección01 para arreglar el Parque Viva?Ah no, diay, si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Dirección01 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”. Estiman absurdas las advertencias del colapso de todo Occidente, Guanacaste y Puntarenas por la construcción de un acceso que mejoraría dramáticamente y de inmediato el tráfico en toda La Guácima hacia Parque Viva y sí, hacia un futuro desarrollo urbanístico que Grupo Nación ha anunciado desde hace años. Precisamente, aclaran que el mejoramiento de la circulación es necesario para que ese proyecto sea viable. Elucidan que el desarrollo proyectado se ejecutaría en quince o veinte años, pero el impacto benéfico del acceso se hará sentir de inmediato en toda la comunidad y sin duda facilitará el acceso a Parque Viva.Al pronosticar el colapso de la mitad del país por la construcción de un eventual proyecto urbanístico, el mandatario parece haber olvidado la promesa de su propio gobierno de ampliar la Ruta 27. Además, la Dirección General de Ingeniería de Tránsito, el Consejo Nacional de Vialidad, el Consejo Nacional de Concesiones y la Comisión de Carreteras de Acceso Restringido, manifestaron su no objeción. Sin embargo, el mandatario, en un arranque frente a micrófonos, anuló esos criterios y borró los años de trámite y planificación invertidos en el proyecto. Expresan que el intempestivo rechazo a considerar siquiera la posibilidad de permitir el acceso y las razones alegadas por el mandatario, demuestran su ánimo persecutorio y su intención de cumplir la amenaza de destruir las “estructuras” de su periodismo. Afirman que solo un plan remedial le complace: un aforo suficientemente bajo para hacer inviable a Parque Viva y así golpear las “estructuras” del periodismo que tanto le molesta y prometió destruir.Exponen que Grupo Nación no está obligado a proveer ese remedio ni se le puede exigir un plan remedial como lo ordenó el gobierno. El parque fue construido con todos los permisos necesarios antes de la explosión inmobiliaria de la zona permitida por el Estado sin proveer la infraestructura necesaria y, más bien, sub ejecutando los recursos para ese fin. Señalan que el Estado supo de la cuantiosa inversión requerida para levantar el proyecto y dio, en varias ocasiones, su consentimiento. El Ministerio envió a hacer una inspección en el parque con intención de encontrar un problema, pero hallaron todo conforme. Entonces, decidieron que el defecto estaba en la vía pública, donde no corresponde a los particulares, sino al Estado, proveer el remedio. Argumentan que el propósito del “plan remedial” exigido por el gobierno es “remediar” el periodismo crítico mediante una desviación de poder para ejercer presión sobre la empresa, consecuente con la amenaza de campaña, y no enfrentar el problema de los embotellamientos.Por eso el Nombre138 ya expresó en su conferencia de prensa de 13 de julio, su negativa a la construcción del acceso que, de buena fe, Grupo Nación está dispuesto a financiar. Todo está listo para ejecutar la obra a cuatro carriles, pero ya la administración dejó claro su intención de no permitirlo. Narran que los estudios técnicos elaborados a posteriori por instituciones dependientes del gobierno nada dicen del verdadero origen del problema. Tampoco dice a qué hora hay presas, qué días ni cómo se forman. Enuncian que tan arbitraria fue la medida adoptada inicialmente y tan débiles los criterios técnicos, que el gobierno se vio obligado a emitir otra, basada en nuevos criterios, que de igual forma devienen cuestionables, para disimular sus intenciones e intentar rectificar los obvios defectos del acto inicial. Describen que en un oficio emitido por la Cruz Roja Costarricense se consignó que los tiempos de respuesta para la atención de emergencias se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que también ocurre en La Guácima.Además, sostienen que la benemérita institución admitió no proveer servicios en los eventos de Parque Viva, pues lo organizadores contratan empresas privadas. Adicionan que el Cuerpo de Nombre140 también enfatizó el problema de estrechez de las calles, sin hacer referencia a ningún problema propio de Parque Viva; mientras que el informe del 9-1-1 no pasó de enumerar reportes de los más diversos incidentes en la zona, sin establecer relaciones de causalidad con Parque Viva. Alegan que el informe del MOPT realizó una extraña comparación con algún sitio del Reino Unido, con “tres eventos similares” que no describió; sin embargo, pidió limitar el aforo a 2400 personas, no por las condiciones del parque sino por supuestos relacionados con la vía pública. Reseñan que, para justificar su actuación, el gobierno procuró obtener, a posteriori, quejas de la comunidad, distribuyendo a la asociación de desarrollo un machote de carta, según el testimonio de Nombre20, dirigente comunal de La Guácima, quien dijo “quieren que desembarremos lo que ellos embarraron”.Indican que en una reunión comunal realizada el 13 de julio de 2022, el regidor y residente de La Guácima, Nombre19, pronunció ante sus vecinos un discurso esclarecedor, al señalar: “(…) Hay una realidad ineludible, del 2010 a la fecha, en La Guácima se han formado 48 proyectos urbanísticos en el Concejo Municipal de Alajuela, sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (...) cada proyecto de esos, implica (...) muchos carros. Eso nos da una realidad vehicular que no era para las carreteras que nosotros teníamos (...) Aquí hay presas todos 1os días, a las siete de la Nombre142 y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente hoy, colapsa La Guácima porque no hay para dónde coger. (…)”. Se cuestionan de porqué se escogió selectivamente a Parque Viva si hay congestionamientos todos los días, en varias franjas horarias y, por su parte, las actividades más concurridas de este sitio suelen celebrarse de noche y los fines de semana.Afirman que el gobierno atendió una denuncia anónima sobre el parque con la urgencia de una catástrofe nacional. Además, celebró reuniones de emergencia, pidió “criterios técnicos” inmediatos, ordenó inspecciones y emitió resoluciones. Todo esto, supuestamente, para evitar presas dos o tres veces por mes, de noche y en fin de semana. Cuestionan si esto mismo se exigirá a comercios y condominios instalados en la zona luego de Parque Viva y si también los cerrará. Indican que el ánimo de singularizar y discriminar a Grupo Nación, como represalia por su periodismo, no puede ser más obvio, además involucra la desviación de poder contra el derecho a la libre expresión de los periodistas del Grupo Nación. Sostienen que el problema no es Parque Viva, sino la infraestructura pública que poco ha avanzado para adaptarse a la densidad habitacional desarrollada después de su existencia. Señalan que no sería difícil producir similares “estudios técnicos” sobre los embotellamientos cotidianos cerca del complejo de oficinas Forum, atribuirlos a las edificaciones y cancelar los permisos de operación.Lo mismo se podría decir de la gran cantidad de centros comerciales y oficinas que atraen tráfico a Lindora por donde es imposible transitar en determinadas horas del día o de la entrada a Multiplaza Escazú en diciembre. Argumentan que los ejemplos son infinitos, pero el Ejecutivo se fija, exclusivamente, en Parque Viva. Disertan que, en síntesis, los problemas de acceso a La Guácima existen “con Parque Viva o sin él”, por omisiones y excesos del Estado. Apuntan que ningún estudio acredita que la situación cambiará con el cierre de Parque Viva o la disminución de su actividad por debajo de los niveles autorizados; por el contrario, hay evidencia de la continuidad del problema cuando no hay actividad alguna en Parque Viva. Asientan que si algo celebra la comunidad es que la desviación de poder del gobierno vertió luz sobre un problema de larga data que no se resuelve con las actuaciones administrativas arbitrarias señaladas.Reiteran que la ineficacia de esos actos desvirtúa su pretendido fin público y evidencia que el único propósito es afectar las finanzas de Grupo Nación, en represalia por el libre ejercicio del periodismo. Arguyen que con el ánimo de continuar persiguiendo e intimidando con la afectación de intereses económicos, el 20 de julio de 2022, en conferencia de prensa, el Nombre138 citó, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva, lo cual le “preocupa” y al parecer está entre los fundamentos de tan trascendental decisión. Al respecto, señalan que el parque tiene la suerte o tal vez la desdicha de estar situado próximo al derecho de vía del tren existente desde hace bastante tiempo, por ende, si se pretende construir un tren con aprovechamiento de ese derecho de vía, deberá pasar por ahí y sería útil que lo hiciera, porque más adelante está la zona franca del El Coyol donde laboran 16.000 personas, además de otros 16.000 ciudadanos en el área circundante.Manifiestan que, por esa razón, el ramal está en los planes del tren eléctrico desde el 2016 y, según explicó INCOFER, no cuesta ¢150.000.000,00 como lo pretende hacer creer el mandatario. Discuten que el Nombre138 es quien menos debería albergar “preocupación” porque fue él, como Ministro de Hacienda, quien firmó el proyecto de crédito para el tren eléctrico que, según dijo ahora, será reemplazado por un proyecto anterior, mucho más caro, que solo se construirá entre San José y Paraíso de Cartago, el cual constituye el segmento de menos tránsito, de conformidad con los estudios. Consideran que las arbitrariedades apuntadas no dejan duda sobre el propósito persecutorio contra el periódico en que el que laboran, así como el carácter de represalia, con desviación de poder, contra la línea informativa y editorial, con grave lesión del derecho a la libre expresión. Refieren que la presión ejercida sobre las finanzas de la empresa pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometen.Aseveran que las acciones descritas conculcan el artículo 29 de la Constitución Política, en tanto procuran coartar la libertad de expresión. Asimismo, lo apuntado deviene contrario a lo dispuesto en el artículo 13.3 de la Convención Americana sobre Derechos Humanos, integrado al bloque de constitucionalidad, en el que se contempla la prohibición de emplear mecanismos indirectos para coartar la libertad de expresión y el derecho del público a conocer informaciones de interés de la sociedad. Sustentan que esos mecanismos indirectos se disfrazan para parecer acciones legítimas, pero sus efectos sobre un derecho humano tan fundamental pueden ser devastadores. Añaden que la Corte Interamericana de Derechos Humanos ha desarrollado una extensa línea jurisprudencial sobre los mecanismos indirectos de represión y tiene establecido, de larga data, que es contrario a la Convención “(…) todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención (…)”.(Opinión Consultiva No. OC-5/85 de 13 de noviembre de 1985, Serie A No. 5, párr. 55). También sostuvo que “(…) [al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron. (…)”. (Caso Nombre21 vs. Perú, sentencia de 6 de febrero de 2001. Serie Nombre143 No. 74, párr. 154). En sentido similar, caso Nombre144 y otros vs. Venezuela, sentencia de 28 de enero de 2009. Serie Nombre143 No. 195. Agregan que la Corte Interamericana de Derechos Humanos estableció que “(…) la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…)” (La Colegiación Obligatoria de Periodistas.Opinión Consultiva No. OC-5/85 del 13 de noviembre de 1985. Serie A No. 5, párr. 48. Cfr.). Asimismo, Caso Nombre136 vs. Venezuela. Sentencia de 28 de enero de 2009. Serie Nombre143 No. 194, párr. 340. Amplían que el alto tribunal ha manifestado que la libertad de expresión tiene una dimensión individual y una dimensión social. Sobre ese aspecto describen que se exige, por un lado, que nadie sea arbitrariamente menoscabado o impedido de manifestar su propio pensamiento y representa, por tanto, un derecho individual, y, por otro lado, implica un derecho colectivo a recibir cualquier información y a conocer el pensamiento ajeno (casos La colegiación obligatoria de periodistas, La última tentación de Nombre22 vs. Costa Rica, sentencia de 2 de julio de 2004, serie Nombre143 no. 107, párr. 108). Impugnan que las actuaciones objeto de este recurso también resultan discriminatorias contra La Nación y sus periodistas.Concluyen que en juego no están solamente los intereses económicos de La Nación o siquiera los de otros medios más frágiles y pequeños, sino el derecho de todos a informar y opinar libremente, así como el derecho de la ciudadanía a recibir esas informaciones y opiniones desde una pluralidad de fuentes, de conformidad con la garantía establecida en los artículos 28 y 29 de la Carta Magna. En virtud de todo lo expuesto, solicitan que se declare con lugar el recurso y se anule la suspensión temporal del permiso sanitario de funcionamiento del Parque Viva, así como los actos administrativos que la sustentan. Además, solicitan que se le ordene al Nombre138 Nombre01, abstenerse de ejecutar actos tendentes a lesionar directa o indirectamente la libertad de expresión.
2. 2Por resolución de las 16:06 hrs. de 29 de julio de 2022, se le da curso al proceso y se requieren los informes a las autoridades recurridas.
3. 3Mediante memorial aportado a la Sala el 8 de agosto de 2022, Nombre23, en su condición de Ministra de Salud, rinde informe y señala expresamente lo siguiente: “(…) De conformidad con lo expuesto, atendiendo el presente informe de ley con sustento en el Oficio N°MS-DM-5756-2022, Expediente Administrativo relacionado con Parque Viva (adjunto como prueba), mediante el cual se afirma, en síntesis, lo siguiente: Para poner en contexto existencia de denuncia con fecha 05 de julio del 2022, misma trasladada para su atención por este Despacho Ministerial mediante Oficio N°MS-DM5756-2022 2, a la Dra. Nombre24, Directora de la Dirección Regional de Rectoría de la Salud Central Norte, denuncia presentada contra el “Parque Viva”, ubicado en La Guácima de Alajuela, denuncia referida propiamente a condiciones estructurales y de acceso y salida de dicho lugar. Cito: “…Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. el problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo.Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, entre otros eventos trágicos que podrían ocurrir en eventos masivos. Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar.En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes Nombre01 y otorgarles el mayor grado de bienestar. Como prueba adjuntó (sic) ocho fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, se adjunta 2 notas de medidas de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos”. En atención a lo denunciado, las autoridades del Área Rectora de Salud de Alajuela 2, al ser las 13:50 horas del 05 de julio de 2022, llevaron a cabo una inspección físicosanitaria al inmueble de cita, incluyendo la valoración correspondiente a sus vías de acceso, concluyendo, según el informe N°MS-DRRSCN-DARSA2-1641-2022, lo siguiente: “…que las Instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros...” Así las cosas, mediante el oficio N°MS-DM-5754-2022, este Despacho Ministerial, con carácter de urgencia, solicitó al señor Nombre25, en su condición de Ministro de Obras Públicas y Transportes, y a la señora Nombre26, Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado “Parque Viva”, ubicado en La Guácima de Alajuela, con el fin de dilucidar aspectos estructurales y de seguridad humana, específicamente en cuanto a los aspectos de capacidad que tienen sus vías de acceso, en el escenario de la enorme cantidad de vehículos y personas que asisten a los eventos masivos programados en dicho lugar, en relación con aspectos de eventuales emergencias, respuesta y acceso de cuerpos de socorro y riesgo, entre otros.Bajo esa perspectiva, mediante oficio N°DVTSV-2022-0341 de fecha 06 de julio del 2022, la Licda. Nombre26, Viceministra de Obras Públicas y Transportes, remite el oficio N°DVT-DGIT-2022-339, suscrito por el Ing. Nombre27, funcionario de la Dirección General de Ingeniería de Tránsito, el cual emite criterio señalando que: “…el establecimiento denominado “Parque Viva” empezó a funcionar en el año 2015, para la realización de varios eventos (deportivos de motores, congresos, ferias, así como eventos de concentración masiva de personas, como conciertos y festivales) el cual se localiza frente a ruta cantonal denominada “Dirección02”, siendo que corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso, indica que la Dirección02 es una calle urbana de dos carriles -un carril por sentido de circulación-, donde ese tipo de vía podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido y, de acuerdo con las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada, siendo que se puede asegurar que en el momento en que se realizan los eventos de concentración masiva, la vía de acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado.Refiere que, bajo un escenario conservador, sin considerar los estacionamientos periféricos al parque, ni la utilización de la pista de carreras, se tendría una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar…” Por su parte, el Comité Asesor Técnico de Concentraciones Masivas, según Acta N°28643-S-MOPT-SP del 07 de Julio de 2022, indicó: “…Vistos los oficios mencionados, y la recomendación del Ministro de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una Orden Sanitaria de Cierre para eventos masivos, del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual debe ser puesto en conocimiento de este Comité Asesor técnico de Concentraciones Masivas…”, lo cual fue debidamente comunicado a través del oficio N°MS-DM-5838-2022 del 08 de julio de 2022- a la Nombre08.Nombre24, Directora de la Dirección Regional de la Rectoría de la Salud Central Norte, procediendo, el día 08 de julio de 2022, autoridades del Área Rectora de Salud de Alajuela 2, girar la orden sanitaria N°MS-DRRSCN-DARSA2-OS-0368-2022, al señor Nombre28, representante legal de “Parque Viva”, con la figura jurídica “Grupo Nación GN Sociedad Anónima”, ordenando en lo que interesa: “… en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud…Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades…”. Posteriormente, en respuesta a la solicitud planteada por este Despacho Ministerial según el oficio N°MS-DM-5870-2022 para cuerpos de socorro, en relación con la situación del “Parque Viva”, instituciones como el Benemérito Cuerpo de Bomberos, la Cruz Roja Costarricense y el Sistema de Emergencias 911, remiten a este Despacho Ministerial el informe N°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Nombre29, Sub-Gerente operativo de la Cruz Roja Costarricense; informe N°CRC-GG-OF-012-2022 del 12 de Julio de 2022, suscrito por el señor Nombre30, Gerente General de la Asociación Cruz Roja Costarricense; Informe técnico N°CBCR-027150-2022-OPOB-00741 del 10 de Julio de 2022, suscrito por el señor Nombre31, de Operaciones de Bomberos; Informe N°911-DI-2022-2202 del 11 de julio 2022, suscrito por la Señora Nombre32 del sistema de Emergencia 9-1-1, donde la Cruz Roja Costarricense, en resumen, indican: “…que sí debe existir medidas preventivas que permita reducir riesgos, como planes de emergencia que definan rutas de acceso suficiente, con la amplitud necesaria que permita una respuesta eficaz en caso de emergencias, que dependiendo del tipo de incidente que se produzca así se requerirá de la participación interinstitucional, incluida la Cruz Roja Costarricense, el Benemérito Cuerpo de Bomberos, Policía, empresas privadas prestatarias de Servicios de Ambulancia, entre otros actores, donde las vías públicas de la comunidad de La Guácima y zonas aledañas resultan insuficientes para el rápido acceso de unidades de emergencia, situación que se puede agravar ante eventos de concentración masiva, los cuales pueden verse afectados por el alto congestionamiento vial y que es ocasionado por la gran cantidad de vehículos que se ubican en los costados de la vía, generando atrasos de hasta 30 minutos para su llegada, donde atienden accidentes de tránsito, incendios estructurales y casos médicos, donde en todos los casos está en riesgo la vida de las personas, por lo que se requiere de un acceso rápido y oportuno de las unidades de rescate especializadas; por su parte, indican los personeros de bomberos, que las unidades extintoras tienen una longitud aproximada de 11 metros y un ancho de 3 metros, lo que genera precisamente que se requiera suficiente espacio para su ingreso a los lugares donde se presentan los incidentes (emergencias como incendios, accidentes de tránsito, otros) siendo que específicamente el ingreso al “Parque Viva” se dificulta cuando deben pasar dos vehículos, en sentido contrario, al mismo tiempo, lo cual hace imposible el ingreso, o cuando existen vehículos estacionados en la vía, siendo el tiempo de respuesta mucho mayor al que se puede atender en condiciones aptas de accesibilidad…”.Por su parte es de observar, de lo informado por el sistema 911, que efectivamente existen un sin número de denuncias que son ingresadas al sistema, en mayor número cuando se están llevando a cabo en el lugar eventos de concentración masiva, así como por vehículos mal estacionados, aglomeración de personas, embotellamiento de vehículos, riñas por no poder salir, colisiones, quejas por escándalos ocasionados por actividades propias del Parque Viva”, como por ejemplo carreras en el Dirección03, problemas de tránsito vehicular, entre otros, siendo de notar que sí existe una situación de riesgo potencial en el lugar, por falta de acceso seguro y fluido al sitio, que afecta las comunidades aledañas al inmueble y que debe el Ministerio de Salud atender de manera diligente, donde el acto administrativo lo que busca precisamente es evitar ante futuras actividades de concentración masiva- poner en riesgo la salud, seguridad y la vida de las personas que asisten a los eventos, así como la de las que viven en los alrededores del Parque Viva, y que requieren de un acceso fluido a sus comunidades (casas) y de ser necesario un adecuado acceso de los medios de socorro, por lo que resulta indispensable presentar el Plan Remedial solicitado, el cual debe abarcar en su contenido la solución a la problemática de acceso en las comunidades de La Guácima de Alajuela, ante la realización de actividades de concentración masiva.Es de mencionar que los actos administrativos realizados por esta instancia Ministerial fueron recurridos y resueltos en apego de tiempo y forma, respetando así el debido procedimiento y derecho en defensa de los administrados que sintieran afectados sus derechos, recursos declarados sin lugar al considerar que se deben mantener los actos administrativos impugnados, ya que se desprende de la valoración realizada por el Ministerio de Obras Públicas y Transportes y de las instituciones de primera respuesta (Cruz Roja, Bomberos, Fuerza Pública y otros). Asimismo se resolvió que dicha medida de suspensión temporal de las actividades de concentración de personas se mantendrá hasta que se garantice con la presentación, aprobación e implementación de un plan remedial, que la realización de las actividades de concentración masiva de personas en Parque Viva no conlleve al colapso de las vías de acceso, no genere molestias a las comunidades vecinas y permita el ingreso de los vehículos y personal de las instituciones de primera respuesta de manera pronta y segura.Ahora bien, sobre lo señalado en el sentido de que existen otras actividades autorizadas al establecimiento que no causan el colapso de las vías, deberán los representantes legales del establecimiento, indicar en el plan remedial solicitado a la autoridad sanitaria del Área Rectora de Salud Alajuela 2, cuáles son esas actividades, así como la cantidad de personas por actividad a fin de que no superen lo señalado en el criterio técnico emitido por las autoridades del Ministerio de Obras Públicas y Transportes, para valorar, autorizar y vigilar su realización (…) FUNDAMENTO DERECHO Constitución Política, en sus artículos 21 y 50, el derecho a la vida y a la salud de las personas es un derecho fundamental, así como el bienestar de la población, los cuales se tornan en bienes jurídicos de interés público y ante ello, el Estado tiene la obligación inexorable de velar por su tutela. Derivado de ese deber de protección, se encuentra la necesidad de adoptar y generar medidas de salvaguarda inmediatas cuando tales bienes jurídicos están en amenaza o peligro, siguiendo el mandato constitucional estipulado en el numeral 140 incisos 6) y 8) del Texto Fundamental.Ley 6227 denominada -Ley General de la Administración Pública-, en su artículo N°214, cito: “…-1 El procedimiento administrativo servirá para asegurar el mejor cumplimiento posible de los fines de la Administración; con respeto para los derechos subjetivos e intereses legítimos del administrado, de acuerdo con el ordenamiento jurídico…(o)…-2 Su objeto más importante es la verificación de la verdad real de los hechos que sirven de motivo al acto final...”. Ley General de Salud N°5395 en sus artículos 1, 2 y 341 cito: “…. La salud de la población es un bien de interés público tutelado por el Estado, siendo del Ministerio de Salud función esencial velar por la salud de la población… Podrán, asimismo, dentro de las atribuciones y jurisdicciones mencionadas, ordenar y tomar las medidas especiales que habilita esta ley para evitar riesgos o daños a la salud de las personas o que éstos se difundan o se agraven y para inhibir la continuación o reincidencia en la infracción de los particulares …” Sala Constitucional de la Corte Suprema de Justicia ha reiterado que la protección y preservación de la integridad del medio ambiente natural, la salud y vida de las personas, es un derecho fundamental, de modo que frente a los intereses particulares prevalece, sin duda alguna, el derecho a disfrutar de un ambiente sano y ecológicamente equilibrado, lo que evidencia que no existe duda de que estando de por medio el ambiente, la salud y vida de las personas y por tratarse de normativa de orden público, se hace imposible alegar la existencia de derechos adquiridos o de situaciones jurídicas consolidadas, cuando estos se encuentran en contraposición del derecho fundamental al ambiente sano y ecológicamente equilibrado.CONCLUSIÓN Partiendo que la Ley N.º 5395, Ley General de Salud, establece que la salud de la población es un bien de interés público tutelado por el Estado y que es función del mismo Estado -a través del Ministerio de Salud- velar por su protección efectiva y que toda persona -natural o jurídica- está sujeta a lo que ella establece, a sus reglamentos y a las órdenes que emita la Autoridad de Salud dentro de su competencia (Artículos 1 y 4). Este bien jurídico “salud”, derivado directo del derecho a la vida, consagrado en el Artículo 21 de la Constitución Política, ha sido protegido desde “tempranas sentencias” de Nuestra Sala Constitucional, y el Ministerio de Salud en su condición de Rector de la Salud de la nación debe garantizar que su producción social, se realice de manera eficiente y contribuya a mantener y mejorar la calidad de vida de la población, en forma equitativa, solidaria y universal.Ahora bien, no podría el Ministerio cumplir con esta función de organización y coordinación suprema si no se preocupara por atender, vigilar, regular y corregir, aquellas situaciones o circunstancias que afectan o ponen en riesgo esa salud de la población. Por eso en su función rectora dicta medidas y normas sanitarias, y por medio de sus programas operativos y de sus órganos y agentes, aplica y vigila su acatamiento, denunciando o sancionando si fuera el caso, a quienes incumplen los requerimientos o ignoran las órdenes sanitarias emanadas de una Autoridad de Salud (Artículos 1 y 2, Ley Orgánica del Ministerio de Salud). Como se desprende del análisis fáctico en el abordaje del Área Rectora de Salud Alajuela 2, a la Denuncia Confidencial N°243-2022, en cumplimiento apego al principio Constitucional, en que se obtenga Justicia Pronta y Cumplida a los tramites presentados ante la administración, me permito hacer mención en lo que interesa, a la resolución N°2008-013962, dictada por la Sala Constitucional a la 9:31 horas del 19 de setiembre del 2008 sobre derecho a justicia pronta y cumplida: “…justicia pronta y cumplida.El artículo 41 de la Constitución Política estipula: "Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales. Debe hacérseles justicia pronta, cumplida, sin denegación y en estricta conformidad con las leyes". En igual sentido, el artículo 8° de la Convención Americana de Derechos Humanos, suscrita en San José el 22 de noviembre de 1969 indica: "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 substanciación 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". De lo anterior se colige que la Administración de Justicia está obligada a resolver en un plazo razonable los asuntos que le son planteados.El artículo 41 de la Constitución Política -antes transcrito-, no ha constitucionalizado un derecho a los plazos, sino el derecho fundamental de toda persona a que su causa sea resuelta dentro de un plazo razonable, lo que ha de ser establecido en cada caso concreto, atendiendo a la complejidad del asunto, la conducta de los litigantes y de las autoridades, así como las particularidades de cada tipo de proceso…” Por ende, el Ministerio de Salud no está exento en cumplir con el deber de concluir con los trámites presentados, en este caso, de la denuncia que nos ocupa, siendo necesario reforzar la seguridad jurídica tanto para el denunciante, denunciado y la misma administración, en saber que los hechos descritos tienen su seguimiento pertinente y un abordaje ajustado en tiempo y derecho, mismo dentro de una línea de tiempo determinado. Partiendo de la existencia de un orden público ambiental y de salud, propio de un Estado Social de Derecho como lo es el nuestro, donde el interés público ambiental y de salud, por regla general, prevalece por sobre los intereses particulares, los derechos adquiridos y situaciones jurídicas consolidadas, estas no encuentran cabida cuando entran en conflicto y puedan afectar los derechos ambientales y de salud de incidencia colectiva, Siendo ayunos los recurrentes en demostrar sus aseveraciones demás temerarias, por cuanto a la luz de los hechos expuestos, se demuestra que el actuar del Ministerio de Salud esta (sic) ajustado a derecho y que están tratando de utilizar su relación patronal con los medios de comunicación conocidos, como un medio coercitivo de “ataque a la prensa”, siendo que la carga a las obligaciones y situaciones comerciales deben ser soportadas independientemente que los recurrentes ostenten algún cargo de interés público como lo es ser propietarios de un medio de comunicación, pretendiendo tener un trato diferenciado o privilegiado en relación con otro comercio que enfrente tales Ordenes (sic) Sanitarias ya que concatenan esto, con un ataque o coerción al interés de información por ver menoscabadas sus actividades comerciales e ingresos económicos, siendo contradictorio en su totalidad con el principio constitucional emanado del artículo 33; - Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana-.Estando las Autoridades Públicas en cumplimiento de ley en aplicar el Principio Precautorio en materia Sanitaria, en el sentido de que deben tomar las medidas preventivas que fueren necesarias para evitar daños graves o irreparables a la salud de los habitantes. Siendo un derecho antes mencionado la culminación de las denuncias o cualquier trámite llevado ante este Ministerio ya que los mismos no pueden quedar sin resolución final por tiempo indefinido, y es en aplicación del artículo 41 de la Constitución Política, artículo 264 de la Ley General de la Administración Pública y Decreto Ejecutivo N°37045 del 22/02/2012 denominado Reglamento a la Ley de Protección al Ciudadano del Exceso de Requisitos y Trámites Administrativos, que esta representación Ministerial actuó ajustada al principio de legalidad que está llamado a cumplir. Aprovecho para hacer mención al comunicado de prensa del martes 12 de julio del 2022, por parte del Colegio de Periodistas y Profesionales en Ciencias de la Comunicación Colectiva de Costa Rica en sus siglas -COLPER-, donde menciona en síntesis; “…La Junta Directiva del Colper se reunió con el Nombre138 Nombre01 y el Nombre138 Nombre03, de ambas conversaciones concluimos que: 1.-La Libertad de prensa es pilar fundamental de la democracia y así lo reconocieron ambas partes. 2.- Por encima de cualquier interés individual debe imperar el interés de las mayorías. 3.- La situación del Parque Viva debe ser abordada desde el principio de legalidad en que opera la administración pública, para lo cual existe la vía recursiva de impugnación del acto administrativo que ordena la suspensión del Permiso Sanitario de Funcionamiento y se resuelve con la presentación de un plan remedial por lo que no guarda relación ni afecta la libertad de prensa toda vez que corresponde a una actividad que se ajusta al derecho comercial y al derecho público que nos rige en relación de los administrados con la administración pública máxime que la Constitución Política en su artículo 50 ordena al estado garantizar el mayor bienestar a todos los habitantes del país. 4.- La presidencia Nombre01 reiteró su compromiso de respetar a los medios de comunicación colectiva, indistintamente de su línea y de editorial o de los intereses del grupo empresarial que represente, y reafirmó el compromiso de construir un protocolo que rija las relaciones prensa gobierno para garantizar el acceso a las fuentes a la información y al respeto mutuo con los periodistas y medios de comunicación…La Junta directiva del COLPER estará vigilante del respeto a la libertad de prensa y libertad de expresión para el resguardo de nuestra institucionalidad (…)”.
4. 4Por escrito aportado a la Sala el 9 de agosto de 2022, Nombre15, en su condición de Nombre138 de la República, rinde informe y señala expresamente lo siguiente: “(…) La Constitución Política de Costa Rica es absolutamente clara en que constituye una obligación ineludible del Estado garantizar, defender y preservar el mayor bienestar de todos los habitantes del país. Además, que toda persona tiene derecho a reclamar un ambiente sano. Asimismo, nuestra Carta Magna protege la libertad de decir lo que se piensa, cuando esto no constituya un exceso que violente o perjudique de manera ilegítima a un tercero, o cuando lo que se dice no encuentra respaldo en la realidad. Esta garantía abarca no solamente la libertad de los medios de comunicación de informar con la verdad, sino también la de los individuos de ejercer su pleno derecho de manifestarse. Ustedes, magistradas y magistrados de la honorable Sala Constitucional, más que nadie, conocen del deber que me fue conferido cuando juré ante el pueblo de Costa Rica como Nombre138 de la República, en donde la protección y resguardo de la ciudadanía representan un pilar fundamental dentro del Estado Social de Derecho.Sin asombro, pero con mucha preocupación recibo el recurso de amparo interpuesto por personas afines al Grupo Nación, en donde exponen situaciones que poca o ninguna relación tienen con coartar la libertad de prensa de este medio de comunicación, y más bien pareciera que, escudados en ese equivocado discurso, exigen -sin ningún reparo- que el Estado les debe permitir operar de la manera que ellos quieran, aun cuando esto sea contrario a la ley y en detrimento del bienestar público. Señalan los recurrentes que ha puesto entredicho la capacidad financiera de Grupo Nación, por el correcto proceder de una grupo de funcionarios de la CCSS de plantear una consulta ante la Nombre02 (Oficio GP-1193-2022/GF-575-06-2022), dada la preocupación que les generó los estados financieros reportados por Grupo Nación, y por movimientos de bienes inmuebles a un fideicomiso constituido por esta compañía, que posiblemente repercutirán negativamente en la capacidad de Grupo Nación, frente al pago de bonos comprados por la CCSS, y que esto, eventualmente, puede afectar groseramente el Fondo de Seguro de Invalidez Vejez y Muerte y el Fondo de Retiro de Empleados de la CCSS.El pago que deben realizar es de 5.950 millones de colones. La preocupación de los funcionarios de la CCSS es absolutamente válida y justificada: al cierre del primer trimestre del 2022, Grupo Nación visualiza una pérdida neta de 350 millones de colones, casi un 35% superior a la perdida reflejada en marzo de 2021. Por otra parte, es muy preocupante que el mayor activo que posee Grupo Nación, es decir, la propiedad en Llorente de Tibás esté siendo traspasada a un fideicomiso, junto con otras propiedades que este grupo ha estado adquiriendo, aun cuando vienen reportando perdidas desde hace varios años atrás. Magistradas y magistrados, ¿Es una amenaza a la libertad de prensa preocuparse y plantear consultas por el destino de los fondos de miles de costarricense invertidos en estos bonos? Grupo Nación, como cualquier otro emisor de deuda que participa en el mercado nacional de valores, está en la obligación de aportar información veraz que respalde su salud financiera, y no escudarse en su supuesta actividad central como "medio de comunicación", para alegar ataques a la libertad de prensa cuando se le exija ajustarse a la legalidad.Hoy, pese a que la CCSS dirigió una misiva al Grupo Nación desde el 20 de julio de 2022, con las mismas consultas que se plantearon ante la SUGEVAI„ no hay respuesta alguna (ver prueba documental). El alegato de los recurrentes respecto al levantamiento temporal del permiso sanitario de funcionamiento de Parque Viva, encuentra el mismo discurso, es decir, a Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley, porque inmediatamente, a su parecer, se convierte en un ataque a la libertad de prensa. De forma extraña, alega Grupo Nación que la denuncia de Parque Viva fue atendida con rapidez y celeridad por parte de las autoridades sanitarias, situación que es plausible y correcta. Estamos hablando de la vida de miles de personas, esto no puede demorarse, no puede esperar más tiempo, debe resolverse con la mayor rapidez y disposición posible; no tiene ningún tipo de fundamento venir a criticar que el gobierno actúo con la debida diligencia para proteger a la ciudadanía, se ejecutaron las acciones de la forma correcta, y es precisamente lo que la población espera, un gobierno que responda ágilmente, no con dilaciones, ni trabas.¿Como es posible, magistradas y magistrados, que Grupo Nación venga a decir que cifran todas sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados, y que clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad, es un ataque directo a la libertad de prensa? Eso solo demuestra que la salud financiera de la Nación no es como la quieren hacer ver, y que dependen de este lugar para subsistir financieramente. Respecto al caso en concreto de Parque Viva, vecinos de la Guácima de Alajuela plantearon ante el Ministerio de Salud una denuncia anónima, donde explican lo que han sufrido por años con este lugar, y las consecuencias que podrían ocurrir en caso de que no se tomen las medidas necesarias de manera urgente. Claro ejemplo de lo denunciado se evidenció en la nota publicada por el medio de comunicación CRhoy.com el 22 de junio de 2017 donde una vecina de La Guácima de Alajuela denunció que "Hay que estar peleando para que no nos parqueen al frente.A veces, mandan a alguien para que acomode carros, pero cuando el desorden es demasiado, desaparecen (...) Todo mundo se encierra. La gente (vecinos) no sale cuando hay concierto. Las calles tienen que hacerlas más anchas, el martes (Concierto de Nombre33, 6 de junio) fue tremendo". Ante esa situación, el principal temor es que una de esas noches de concierto se presente una emergencia que amerite la salida rápida de algún vecino. "¡Se muere la persona! Si se cortó, se escurrió (...) Esto se bloquea por todo lado. No solo aquí, también en Ciruelas y en el sector conocido como El Bajo (...) Es que hay semanas hasta con 3 conciertos. (Ver legajo de prueba anexo como prueba documental) Otro ejemplo de la situación que viven los vecinos de Parque Viva ocurrió el 9 de julio de 2017, de acuerdo con una nota publicada por el medio de comunicación Am Prensa el 09 de julio de 2017, donde se denunció que, durante un concierto llevado a cabo la tarde de ese día en el Parque Viva, se reportaba un fuerte congestionamiento vial en los alrededores del recinto, pero lo más grave ocurrió cuando se recibió una alerta de una amenaza de un atentado terrorista que propició la detención de una persona.(Ver legajo de prueba anexo como prueba documental) Una vez recibida la denuncia anónima, el Ministerio de Salud convocó a sesión al Comité Asesor Técnico en Concentraciones Masivas para analizar el caso. En dicha sesión, participaron funcionarios además del Ministerio de Salud, del Ministerio de Obras Públicas y Transporte, de la Cruz Rojas Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencia y del Benemérito Cuerpo de Bomberos. Este comité, actuando dentro de los parámetros permitidos, y analizando el informe DVT-DGlT-2022-339 (ver prueba documental) de la Dirección General de Ingeniería de Tránsito (previamente solicitado por el Ministerio de Salud), donde se concluye que al momento que se realizan concentraciones masivas en el Parque Viva, la vía que da acceso no tiene la capacidad suficiente para el manejo del tránsito generado, por tanto, esta comisión acordó proponerle a las autoridades sanitarias una orden de cierre para eventos masivos y solicitar un plan remedial para las condiciones denunciadas.Recibida la recomendación del comité especializado, la Dirección de Área Rectora de salud de Alajuela 2, emitió la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 (ver prueba documental), donde suspendió de manera temporal el permiso sanitario de funcionamiento para eventos de carácter masivo hasta tanto el ente recurrido no presentara un plan remedial que abarcara la solución a la problemática con los accesos. Hoy, Grupo Nación no ha presentado el plan remedial. Cabe recordar que, las autoridades han exigido a otros grupos comerciales, la construcción de accesos de ingreso a centros comerciales de gran envergadura, cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos; ejemplos de esto son los casos de EPA en Desamparados y City Mall en Alajuela, quienes realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos.Además, se cuenta con el criterio de la Dirección Regional de la Fuerza Pública de Alajuela, mediante oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-08272022 (ver prueba documental), donde, señalan que la zona de la Guácima de Alajuela está catalogada como sensible ya que convergen diferentes acciones delictivas y que la afectación que genera aglomeraciones de vehículos y personas en las afueras de Parque Viva, reduce la movilidad policial y produce un incremento en las llamadas de vecinos al 911, debido a incidentes de alteración al orden público. Fuerza Pública hace referencia a un caso en concreto ocurrido durante un concierto en Parque Viva el 07 de mayo de 2022, donde en una emergencia médica, los cuerpos de socorro requirieron del auxilio policial para poder trasladar a la paciente ya que la cantidad de vehículos y personas en la zona impedían el movimiento de la ambulancia con la rapidez que se precisaba, por tal razón fue necesaria la intervención de doce efectivos policiales abriendo camino a pie entre los vehículos durante 40 minutos.Concluyen que la afectación al servicio policial durante los eventos masivos en Parque viva es evidente, notoria, frecuente y repetitiva, en virtud del impacto de la incidencia delictiva y la afectación en los tiempos de respuesta de las autoridades de emergencia. El Benemérito Cuerpo de Nombre140 emitió su criterio mediante oficio CBCR-0271502022-0PB-00741 (ver prueba documental), donde concluyen que las comunidades de Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las instalaciones de Parque Viva, se ven afectadas debido a que el tiempo de respuesta de las unidades de Nombre140 aumenta de forma considerable debido a las condiciones de las vías circundantes al reciento (sic), aunado a los bloqueos que se generarían en las carreteras durante los eventos masivos, y esto imposibilitaría el acceso a las comunidades durante emergencias, situación que pone en peligro las vidas y las propiedades.Ante la incredulidad que generó el hecho que el gobierno local le otorgara permisos de funcionarios a Parque Viva, aún con toda la evidencia de que sus condiciones de operación son perjudiciales para las comunidades circunvecinas, el Instituto Nacional de Vivienda y Urbanismo le solicitó a la Municipalidad de Alajuela el expediente del proyecto, donde se hallaron situaciones muy preocupantes que fueron expuestas en el oficio PE-243-07-2022 (ver prueba documental), a saber:1) Los permisos municipales de uso de suelo para el campo ferial, anfiteatro, hotel y servicio de comidas, no respetan el plan regulador vigente.2) La finca donde encuentra el Parque Viva, se ubica en una zona verde, y no es una subzona residencia de mediana densidad, tal y como se indicó en la constancia de uso de suelo, que fue emitida por la Municipalidad de Alajuela y base para la emisión de los permisos de construcción.3) La viabilidad ambiental otorgada, fue dada para mejoras en lo que fue el Autódromo La Guácima; en ningún momento se desprende del trámite ante Setena, que la actividad a desarrollar fuera para un campo ferial, lo que evidencia que los permisos fueron gestionados de forma separada, con la intención de obviar requerimientos mínimos que debieron ser pedidos.4) No hay registro de presentación ante el MOPT ni la Municipalidad de Alajuela, de ningún estudio de impacto vial, que mida el impacto de flujo vehicular asociado a las actividades que se desarrolla en Parque Viva.5) El proyecto no contó con autorización del Benemérito Cuerpo de Nombre140 al momento de ser aprobado.6) NO se solicitó ninguna mejora a la vialidad cantonar (sic) que da acceso al Parque Viva, en ninguna etapa. Obviado con ello el gobierno local, lo estipulado en el artículo 70 de la ley de planificación urbana, que le permite solicitar contribuciones dado el impacto del proyecto Parque Viva, sobre la vialidad pública del cantón (casos Epa Desamparados, City Mall Alajuela). Como se ha afirmado, las actuaciones cuentan con el criterio de varias instituciones públicas especializadas, algunas de ellas beneméritas de la patria, que gozan de total credibilidad en sus actuaciones. No se trata de gestiones antojadizas, como lo quieren hacer ver los recurrentes, se trata de funcionarios y funcionarias responsables que cumplen su deber, con la debida competencia legal para hacerlo y que buscar proteger la vida de los costarricenses. Por lo expuesto, el hecho de proteger la vida de cientos de familias vecinas del Parque Viva, no tiene ninguna relación con atacar, limitar o censurar la libertad de prensa de Grupo Nación. Yo no voy a dormir con la consciencia tranquila si durante el próximo concierto hay una emergencia y muere una niña, un anciano, se pierden casas de gente humilde durante un incendio, simplemente por el beneficio económico de un grupo, que se escuda en la libertad de expresión cada vez que se les solicita ajustarse a la ley. Como aspecto relevante en apoyo de la actuación de las autoridades sanitarias, está el pronunciamiento del propio Colegio de Periodistas de Costa Rica, quienes indicaron que, una vez analizado el tema, arriban a la conclusión que la libertad de prensa en Costa Rica goza de buena salud, y que en ningún momento se está atentando contra este derecho. Al respecto indicó el Colegio de Periodistas en su comunicado oficial: "(...) La situación del Parque Viva debe ser abordada desde el principio de legalidad en que opera la administración pública, para lo cual existe la vía recursiva de impugnación del acto administrativo, que ordena la suspensión del permiso sanitario de funcionamiento y se resuelve con la presentación de un plan remedial, por lo que no guarda relación ni afecta a la libertad de prensa, toda vez que corresponde a una actividad que se ajusta al derecho comercial y al derecho público que nos rige en la relación de los administrados con la Administración Pública, máxime que la Constitución Política en su artículo 50 ordena al Estado garantizar el mayor bienestar a todos los habitantes del país (…)” (ver legajo de prueba documental anexo). El propio Grupo Nación, en una nota publicada el 27 de abril de 2021, acepta que las condiciones de acceso de las instalaciones de Parque Viva no son las mejores. Expresamente indican que "Si bien Parque Viva cuenta con distintas rutas públicas de acceso, las mismas presentan limitaciones para asimilar el fluido movimiento de una gran cantidad de vehículos, como las que se producen cuando han presentado espectáculos a lleno completo en el Anfiteatro Coca-Cola (ver legajo de prueba documental anexo). A esto debemos sumar la nota del medio de comunicación El Guardián titulada "Parque Viva reconoció problemas de caos vial desde el 2017 y esperó hasta el 2021 para buscar solución", donde una funcionaria del Parque Viva acepta que los eventos masivos repercuten de manera negativa en el flujo vehicular propio de la zona, y que en un evento del 6 de junio de 2017, donde se convocaron 18 mil personas, un choque colapsó todo el sector de la Guácima de Alajuela, lo que agravó la salidas de los asistentes al evento. (Ver legajo de prueba documental anexo). La necesidad de sentir persecución por parte de los recurrentes defendiendo los intereses de Grupo Nación llega al punto de asegurar, de acuerdo con el recurso de amparo, que la cancelación del proyecto del tren eléctrico impulsado por el anterior gobierno pasa por el hecho que una ramificación de la ruta pasaba por el sector de Parque Viva, de ahí la decisión que se tomó y que fuera anunciada. Este argumento es absolutamente falso. La decisión de no continuar con el proyecto fue pensada en el beneficio común de la ciudadanía, donde un proyecto mejor pensando y elaborado representaría mayores beneficios para todos. Grupo Nación, como un medio de comunicación serio, debería saber que las decisiones de alta trascendencia de nivel país, no pasan -únicamente- por los colones y beneficios que pueda recibir su empresa, sino que abarca mucho más, al pueblo costarricense, por ejemplo. Donde no ahondan en el alegato los recurrentes es que, de acuerdo con la nota publicada el 20 de agosto de 2020 por el medio de comunicación CRhoy.com, en el ejercicio de su libertad de prensa, el gobierno de turno y el grupo Nación firmaron un convenio que incrementaría el costo del tren eléctrico en casi 150 mil millones de colones, para que la línea férrea pasara por las inmediaciones del Parque Viva. (Ver legajo de prueba documental anexo). Al Grupo Nación siempre se le ha respetado el debido proceso. En primera instancia, se les otorgó la posibilidad de presentar un plan remedial (que no lo han hecho) y, por otra parte, han tenido la posibilidad de recurrir la resolución administrativamente, estando pendiente por resolver el recurso de apelación. No es cierto que la Administración haya clausurado definitivamente el recinto. El diario La Nación sigue operando y seguirá haciéndolo sin ningún tipo de injerencia por parte del Estado, eso no quiere decir que no se les va a exigir ajustarse a derecho cuando sea evidente y manifiesto que están operando de manera ilegítima y en detrimento de los derechos de los costarricense. No existe, en ninguna circunstancia, un ataque indirecto a la libertad de prensa; en ningún momento he ordenado a las autoridades sanitarias actuar de determinada manera, todas las decisiones se han tomado de acuerdo con parámetros técnicos actuando sobre la base de una denuncia presentada por la misma ciudadanía. Como costarricense y funcionario público, tengo la obligación y el derecho de pronunciarme enérgicamente ante situaciones que pongan en peligro la salud pública del pueblo; paradójicamente, es un derecho constitucional que me asiste de manifestar de manera libre mis pensamiento, y lo haré de la forma más vehemente cuando se trate de proteger los derechos de las familias costarricenses, y aún más cuando se trate de las población (sic) más vulnerables; recientemente, la Sala Constitucional se pronunció sobre el derecho de los servidores públicos de expresar sus opiniones, esto mediante el voto 09855-22, indica el citado documento: “(…) no hay que perder de vista que la libertad de expresión, así como la libertad de prensa, son elementos esenciales del sistema democrático, al extremo, que es uno de sus elementos nucleares. Así lo ha reconocido este Tribunal, la Corte Interamericana de Derechos Humanos y el Tribunal Europeo de Derechos Humanos en su amplia jurisprudencia. A partir de lo anterior, y siguiendo los precedentes de esta Sala es necesario concluir que se debe declarar con lugar el recurso de amparo. (...) Así las cosas, tomando en consideración las particularidades del cuadro fáctico de este caso, la apertura del procedimiento administrativo en sí mismo no constituye un medio razonable ni proporcional para exigir una responsabilidad ulterior, tal y como lo prescribe el numeral 29 de la Carta Fundamental y el artículo 73 de la Convención Americana sobre Derechos Humanos, sino, por el contrario, se constituye en un instrumento intimidante para la amparada y, de esa forma, se impide que exprese lo que piensa sobre el desempeño de una alta funcionaria del Poder Judicial, siendo mayores las restricciones a la libertad de expresión que los beneficios de la medida. Aunado a lo anterior, no se logró demostrar fehacientemente el interés público imperioso de abrir dicha investigación, y se constató que las críticas realizadas en el articulo de opinión se enmarcaron en lo que se espera de los habitantes Nombre01 cuando ejercen la libertad de expresión, sea para criticar o exaltar la gestión de un funcionario público. Es importante indicar que los límites entre la potestad disciplinaria y la libertad de expresión de los funcionarios judiciales debe analizarse coso por caso (…)”. Asimismo, en el propio caso de Nombre136 vs Venezuela, ante de la Corte Interamericana de Derechos Humanos, al que hace referencia los recurrentes y que contradice su propia posición, se menciona que el caso encuentra relación con el informe de alcances y conclusiones No. 119/06 de 26 de octubre de 2006, al indicar que: “(…) la mayoría de los pronunciamientos anexados “(…) aunque pueden tener un contenido fuerte y critico que incluso puede ser valorado como ofensivo, constituyen expresiones legitimas de pensamientos y opiniones sobre las formas particulares que puede tener un medio de comunicación de ejercer el periodismo que se encuentran protegidas y garantizadas bajo el artículo 13 de la Convención Americana y la Comisión no encuentra que constituyan violación alguna de ese instrumento. " En este punto, resulta fundamental traer a colación la Declaratoria de Chapultepec, propiamente el principio noveno, donde bien se señala "que la credibilidad de la prensa está ligada al compromiso con la verdad, a la búsqueda de precisión, imparcialidad y equidad, y a la clara diferenciación entre los mensajes periodísticos y los comerciales. El logro de estos fines la observancia de los valores éticos y profesionales no deben ser impuestos. Son responsabilidad exclusiva de periodistas y medios. En una sociedad libre la opinión pública premia o castiga." Del párrafo anterior resulta inevitable cuestionarse si Grupo Nación está actuando ajustada a este precepto, y si una vez analizados todos los criterios de las entidades especializadas, la credibilidad y compromiso con la verdad no está entredicho. En conclusión, puedo afirmar que no se está ejerciendo ninguna clase de censura, ni directa, ni indirecta contra Grupo Nación; el medio de comunicación continúa operando de manera normal, informando al pueblo costarricense de acuerdo con su línea editorial, y esta garantía nunca será trasgredida. El derecho que los recurrentes alegan como violentado no encuentra sustento en la realidad como se ha demostrado, por lo que el recurso de amparo debe ser declarado sin lugar en todos sus extremos (…)”. Solicita que se declare sin lugar el recurso planteado.
5. 5Por escrito aportado a la Sala el 17 de agosto de 2022, el recurrente Nombre34 se refirió al informe rendido por las autoridades recurridas. Alude a la premura con la que se tramitó, el 5 de julio de 2022, la presunta denuncia formulada en contra de Parque Viva, ante diversas instancias y en menos de seis horas (sea, desde presuntamente las 8:00 hrs. y las 13:50 hrs.). Sobre este punto en particular aduce expresamente lo siguiente: “(…) 1 -En la copia del expediente aportado por los recurrentes, folio 2, figura el formulario de denuncia anónima recibido a las 12:41 del 5 de julio en Alajuela. No obstante, si nos dejamos guiar por el Oficio en que la Ministra la traslada a la Dra. Nombre24, Directora Regional, la denuncia fue recibida en San José, el mismo 5 de julio. NO podemos saber la hora, porque el documento no tiene sello de recibido en las oficinas centrales del Ministerio, contrario a las normas usuales de recepción y manejo de documentos en la administración pública, pero no pudo ser presentada antes de las 8 am., porque a esa hora abren las oficinas. 2- Entre las 8 am, suponiendo que el denunciante estaba ahí cuando se abrieron las puertas, y las 12:24:14 cuando la señora Ministra solicita criterios técnicos urgentes a los jerarcas del Ministerio de Obras Públicas según el oficio MS-DM-5754-2022 visible a folio 26 de la copia del expediente aportado por los recurridos, hubo tiempo para formular y recibir la denuncia, decidir que era de atención urgente por la señora Ministra en persona, elevarla a su despacho y redactar el oficio enviado al MOPT.No parece haber habido tiempo para estampar un recibido que nos permita saber la hora de presentación de la denuncia para aquilatar la verdadera celeridad de los trámites, que quizá sea mucho mayor. 3- En la copia del expediente aportado por los recurridos, folio 1, figura el oficio MS-DM-5756-2022 firmado electrónicamente el 5 de julio a las 12:38:24 mediante el cual la Ministra traslada el formulario de denuncia a la Dra. Nombre24, Directora Regional. Eso ocurre 2 minutos y 36 segundos antes del recibido estampado en el formulario en Alajuela. Lo más extraordinario es que la Dirección Regional Central Norte, que comprende Alajuela y Heredia, está en esta última Ciudad, desde donde sería imposible el traslado físico del documento en un par de minutos. Si el traslado fue electrónico, también se hizo en tiempo récord. En 2 minutos y 36 segundos se recibió el correo electrónico, se leyó el contenido, se despachó a Alajuela donde se imprimió la denuncia y se le puso un recibido físico que habría sido innecesario si la ruta electrónica hubiera quedado documentada.Si la celeridad con que al parecer ahora se tramitan las denuncias anónimas hubiera aconsejado enviar copia del documento a Alajuela mientras se notificaba a la jerarca en Heredia, irrespetando las cadenas de mando, cabe preguntarse por qué en el expediente figura como única copia —por lo que debemos entenderla como Original la que tiene el recibido de Alajuela. 4- En la copia del expediente aportado por los recurridos figura el ya citado Oficio MS-DM-5754-2022 firmado el 5 de julio a las 12:24:14 mediante el cual la Ministra solicita criterios técnicos urgentes a los jerarcas del MOPT, más de 14 minutos antes del traslado de la denuncia anónima a la Dirección Regional, en Heredia, y casi 17 minutos antes de recibida la denuncia en Alajuela. 5- En la copia del expediente aportado por los recurridos, folio 19, figura el acta de inspección firmada a las 13:50 del 5 de julio en Parque Viva.Es decir, entre la recepción de la denuncia en Alajuela y el fin de la inspección en el sitio habrían transcurrido 69 minutos. Aparentemente, los inspectores estaban listos, a la hora de almuerzo, para salir como un relámpago hacia La Guácima instantes después de recibida la denuncia anónima en el centro de Alajuela y ejecutar su tarea a una velocidad extraordinaria, desplazándose por todos los rincones del parque (…)”. Menciona que, en su informe, la Ministra de Salud da a entender que, en virtud de la inspección realizada por autoridades del Área Rectora de Salud de Alajuela 2 el 5 de julio de 2022, se procedió posteriormente a solicitar criterio al MOPT. Sin embargo, señala que ese criterio había sido solicitado casi una hora y media antes de concluida dicha inspección. Agrega que el informe oficial de los inspectores de Alajuela 2 (donde se recomienda trasladar la denuncia al MOPT para que valoren las condiciones denunciadas de su competencia), fue firmado fuera de horas de oficina, el propio 5 de julio de 2022, a las 17:26:59 hrs.(cuando habían pasado más de cinco horas desde que la Ministra de Salud había pedido criterios técnicos urgentes al MOPT). Sobre este último aspecto, señala expresamente lo siguiente: “(…) No sabemos a qué hora fue recibida la denuncia ni cómo llegó al despacho de la Ministra sin pasar el proceso habitual de recepción de documentos Es una hoja que cualquiera pudo haber llenado en cualquier momento, pero desató una actividad extraordinaria. Unas horas de la Nombre142 del 5 de julio bastaron para desplegar todas las actuaciones registradas en los Oficios. ¿Qué trasladó la Ministra al despacho de la Nombre35, en Heredia, si 2 minutos y 36 segundos después se le estaba estampando el recibido a la denuncia en Alajuela? ¿Por qué es esa la única constancia de recibido en el formulario de la denuncia y por qué figura únicamente ese formulario en el expediente? ¿Para qué hizo la Ministra el traslado a Heredia y para qué se envió la denuncia a Alajuela si ya se había consultado al MOPT sobre las vías aledañas a Parque Viva y se sabe que el Ministerio de Salud no tiene jurisdicción sobre esa materia?¿Cómo llegaron con tanta celeridad los inspectores de Alajuela a Parque Viva? Esta crónica de lo sucedido en menos de seis horas (quizá mucho menos, dependiendo de la hora de presentación de la denuncia) en tres sedes del Ministerio de Salud y las instalaciones de Parque Viva, precede al resto de la frenética actividad que culminó con la suspensión de los permisos sanitarios. No es así como se tramitan las denuncias, especialmente anónimas, en ningún sector de la administración pública. La arbitrariedad, el ensañamiento y la desviación de poder no admiten duda (…)”. De otra parte, indica que, como parte de la costumbre de pedir a las instituciones públicas documentos para justificar a posteriori las arbitrarias actuaciones en este caso, el Instituto Nacional de Vivienda y Urbanismo, semanas después del cierre, emitió un informe de irregularidades presuntamente cometidas hace ocho o nueve años.Menciona que la Municipalidad de Alajuela lo desmintió ese mismo día, pero eso no importó para que el Nombre138 lo presentara como parte de su informe rendido a la Sala. Sostiene que cada uno de los argumentos señalados en el informe por el INVU carecen de veracidad y, en ese particular, afirma lo siguiente: “(…) 1-Según el INVU, los permisos municipales de uso de suelos irrespetan el plan regulador. Como bien dijo Municipalidad de Alajuela en comunicado oficial del 3 de agosto de 2022, el artículo 60 del Plan Regulador Urbano dispone que si pasados cinco años desde la publicación de dicho plan la Municipalidad no adquiere los terrenos destinados a zonas verdes, éstos adquieren la zonificación cercana que menos afecte al usuario y eso fue lo que sucedió. Los usos de suelo, autorizados Oportunamente, cumplen a cabalidad con el Plan Regulador vigente, Se aportan como Prueba # 1. Como consta en los usos de suelo autorizados por la Municipalidad de Alajuela en junio del año 2013, la zonificación de la propiedad donde se ubica Parque Viva (folio real matrícula , partido de Alajuela) era una zona clasificada como residencial de media densidad. 2- Según el INVU, la finca donde está Parque Viva se ubica en una zona verde y no en una sub zona residencial de mediana densidad, como se indicó en la constancia de uso de suelo emitida por la Municipalidad de Alajuela para emitir los permisos de construcción.Falso, según lo acabamos de explicar y probar. La verdad no solo la acreditan los usos de suelo debidamente emitidos, sino también la normativa del Plan Regulador. No existe ningún argumento para poner en duda la validez de los usos de suelo otorgados a Parque Viva. (Se aportan como prueba los usos de suelo aprobados) 3- Según el INVU, la viabilidad ambiental fue otorgada para mejoras en el Autódromo La Guácima. En ningún momento se desprende del trámite ante Setena que la actividad a desarrollar fuera un campo ferial, lo que evidencia la tramitación separada de los permisos para obviar requerimientos mínimos. La afirmación es absolutamente falsa, para comprobarlo, basta la lectura de la resolución que otorga la viabilidad al proyecto. Esa resolución, aportada como Prueba #2, fue emitida por la Secretaria Técnica Nacional Ambiental SETENA, # 3088-2013 de fecha 19 de diciembre del 2013, en el Proyecto entonces conocido como "Mejoras al Autódromo La Guácima".La cláusula 5 del por tanto enumera las obras a realizarse en lo que era el Autódromo La Guácima La minuciosa descripción general del proyecto aprobado es la recogida en la resolución número 3088-2013 de Setena, adjunta como prueba. Esas fueron las obras autorizadas y esas fueron las Obras construidas, Como debería ser obvio, SETENA otorga viabilidad ambiental a las obras, no al Nombre141 comercial presente o futuro. En aquel momento, Grupo Nación no se había decidido por la denominación Parque Viva y para identificar el proyecto utilizó el Nombre141 de la actividad anterior. Nombre142, podría decidir llamarlo de cualquier otra forma sin violentar la viabilidad ambiental concedida por Setena hace casi nueve años. El comunicado de la municipalidad dice al respecto "SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC, El título del proyecto, es decir, el Nombre141 con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no afectó la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía).No porque la empresa cambiara el Nombre141 del proyecto, cambia la naturaleza de las Obras 4- Según el INVU, no hay registro de presentación ante el MOPT ni la Municipalidad de Alajuela de ningún estudio de impacto vial que mida el impacto del flujo vehicular asociado a las actividades de Parque Viva. Grupo Nación presentó oportunamente un estudio vial, entregado al Ministerio de Obras Públicas y Transportes para su revisión y análisis, Prueba de ello es el Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de Ingeniería de Tránsito emite formal aprobación del estudio (Ver prueba). 5- Según el INVU, el proyecto no contó con autorización del Cuerpo de Nombre140 al ser aprobado. Falso. Los planos cuentan con la aprobación de las instituciones competentes, a saber el Cuerpo de Bomberos, el Ministerio de Salud y la Municipalidad de Alajuela. La aprobación de marras es visible en la plataforma digital de APV, donde se almacenan todos los documentos relacionados con desarrollos Inmobiliarios cuyos trámites son revisados por el Colegio Federado de Ingenieros y Arqutectos (sic) (Ver prueba).Al respecto, la municipalidad declaró: "La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que "el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional". El involucramiento del Cuerpo de Nombre140 en el desarrollo del proyecto queda demostrado con el oficio fechado 16 de junio del 2014 donde se acepta la eliminación de hidrantes y se pide subsanar defectos menores. 6- Según el INVU, no se solicitó ninguna mejora a la vialidad cantonal que da acceso a Parque Viva en ninguna etapa.Obvió con ello el gobierno local lo estipulado en el artículo 70 de la ley de planificación urbana que le permite solicitar contribuciones dado el impacto del proyecto sobre la vialidad del cantón. NO es cierto. Parque Viva desarrolló mejoras en media vía cantonal que corresponden a inversiones para la ampliación de asfaltado, construcción de cordón de caño, aceras, parada de autobuses y bahía para buses, entre Otras (…) El MOPT, mediante oficio DVT-DGlT-ED-2015-4056 acepta la finalización del proyecto de construcción y deja constancia de la recepción de la obras. (…)”. De otra parte, afirma que lo informado por el Nombre138 respecto al tren no es cierto. Sostiene que dicha autoridad sabe que no hay ningún ramal valorado en 150.000 millones para favorecer a Parque Viva, porque él mismo participó activamente de la estructuración financiera y presentación legislativa del proyecto. Indica que el convenio suscrito entre Grupo Nación e Incofer, se traduce en una carta de intenciones en virtud de la cual Grupo Nación se compromete a promover entre las empresas privadas la rehabilitación de la vía existente, para extender el servicio actual hasta el Coyol, donde laboran más de 32.000 personas en las zonas francas y empresas conexas de los alrededores.Narra que el beneficio para esas empresas y la atracción de inversiones, como lo ha dicho CINDE, es mejorar el acceso a la zona, especialmente para los trabajadores. Igualmente afirma que el beneficio para Parque Viva es también obvio, tanto como para la comunidad de La Guácima y sus alrededores. Aclara, entonces que “(…) Grupo Nación manifiesta su intención de buscar colaboración de las empresas que se podrían beneficiar de la rehabilitación de la línea de tren trazada por don Nombre36 a fines del siglo XIX. Incofer, por su lado, podría extender su servicio sin invertir en la vía y recabaría valiosa información de la demanda del servicio. El convenio no hace referencia alguna a la fantasía incorporada al informe del señor Nombre138 y la única mención del tren eléctrico es para describirlo como una de las prioridades del gobierno y aclarar, acto seguido, que "en el tanto esos procesos avanzan, el Incofer manifiesta su interés en reaperturar servicios ferroviarios en los trayectos de la vía férrea que paulatinamente puedan irse rehabilitando, y que permitan promover la utilización de los servicios ferroviarios y arrojen importantes datos acerca de la demanda de los servicios ferroviarios (…)” y agrega que “(…) el señor Nombre138 ni siquiera necesita necesita (sic) ver el convenio para reconocer la falsedad incorporada a su informe.En el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020, página 83, aparece Su firma, como Ministro de Hacienda, en el proyecto de ley de aprobación del crédito del Banco Centroamericano de Integración Económica para financiar parte del tren eléctrico, En la página 9 del Alcance, adjunta a este escrito como prueba, se afirma: "En definitiva, el proyecto de Tren Eléctrico de Pasajeros consiste en una mejora sustancial del servicio de transporte ferroviario que discurre entre San José y la poblaciones de Alajuela, Belén y Paraíso en tres líneas respectivas, junto con la extensión desde Belén a Ciruelas y dos nuevos tramos desde Alajuela a Ciruelas y desde Ciruelas a El Coyol, respectivamente. En la misma página se lee, entre los Objetivos específicos del proyecto: "Diseñar y construir una nueva infraestructura ferroviaria en el GAM en los derechos de vía que actualmente posee el INCOFER..." "Más abajo, dice: "La inversión aproximada del proyecto es de US$1 550.000.000 (…) Como queda demostrado, el señor Nombre138 siempre ha sabido que el ramal de C150.000 millones nunca existió, que no hay un convenio entre Incofer y Grupo Nación que lo contemple, que el costo total era de USS1.550.000.000 (sin los supuestos C150.000 millones adicionales) y que la obra se desarrollaría sobre los derechos de vía existentes.Todo eso lo apoyó, además, con su firma y solemnes manifestaciones ante los diputados. (…)”. Afirma que el ánimo persecutorio y el propósito de cumplir la amenaza de campaña de destruir las estructuras que sustentan nuestro periodismo, apartándose de la verdad si es necesario, queda confirmado por las manifestaciones del informe relacionadas con el caso del tren que, inicialmente se citó como uno de los elementos de la presión destinada a limitar su libertad de expresión en los términos prohibidos por el artículo 13.3 de la Convención Americana sobre Derechos Humanos. En cuanto a lo manifestado por el Nombre138 respecto a los bonos comprados por el Estado, señala expresamente lo siguiente: “(…) En otra parte del informe, el señor Nombre138 expresa: "Señalan los recurrentes que ha puesto entredicho la capacidad financiera de Grupo Nación por el correcto proceder de un grupo de funcionarios de la CCSS de plantear una consulta ante la Sugeval… dada la preocupación que les generó los estados financieros reportados por Grupo Nación, y por movimientos de bienes inmuebles a un fideicomiso constituido por esta compañía.Nunca dijimos semejante cosa, pero ni el proceder de los funcionarios de la Caja fue correcto ni actuaron, sin más, por decisión propia La incorrección del procedimiento queda en evidencia con la respuesta de Nombre02 que los manda a contactar directamente al emisor. La participación del Nombre138 en la gestión está demostrada por la grabación de la conferencia de prensa donde confesó haber sido él, personalmente, quien pidió al Nombre138 ejecutivo de la Caja formular las preguntas a Grupo Nación mediante la Sugeval. El Nombre138 parece haberse dado cuenta del carácter inusitado de esa llamada y añadió que el funcionario respondió que ya lo estaban haciendo. Lo que sí dijimos los recurrentes es que esas actuaciones solo sirvieron para montar una conferencia de prensa donde, sin esperar la respuesta a las preguntas, el Nombre138 dio a conocer la gestión y cuestionó la solvencia de Grupo Nación con el evidente propósito de cumplir sus amenazas de campaña de castigar nuestro periodismo destruyendo las estructuras que lo posibilitan, Según dijo, con evidente intención de tocar la emotividad, las preguntas fueron formuladas en defensa de la pensión de "la abuelita".(Ver video en soporte de prueba electrónica). También dijimos que ninguna autoridad financiera ha expresado las mismas dudas, Grupo Nación mantiene la clasificación “A”, otorgada por la calificadora Fitch, y los activos de la empresa duplican sus pasivos. Los estados financieros son públicos, porque Grupo Nación está inscrito en bolsa, y en ellos consta la reserva de los recursos necesarios para cancelar el próximo vencimiento, luego de haber pagado puntualmente los dos anteriores y sus intereses. Como queda claro, dijimos, "el espectáculo no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar nuestra libertad de expresión porque "la práctica habitual de inversionistas institucionales" es consultar directamente al emisor y valerse de la información publicada por mandato de ley" "Magistradas y magistrados, ¿Es una amenaza a la libertad de prensa preocuparse y plantear consultas por el destino de los fondos de miles de costarricenses invertidos en estos bonos?", pregunta el señor Presidente.Evidentemente no, pero cuando el mandatario que juró destruir las estructuras de nuestro periodismo monta una conferencia de prensa para publicitar, desde su alta tribuna, una consulta planteada a su solicitud mediante el procedimiento errado, que además no había tenido respuesta, lo cual no le impidió sembrar duda sobre las finanzas de la empresa y decir que todo es para defender la pensión de la abuelita, luego de calificar de "diplomático" al Nombre138 de la Caja por afirmar que el emisor siempre ha pagado puntualmente, la respuesta es otra. Y cuando todas esas circunstancias se suman al cierre del Parque Viva dos días después, además de lo dicho sobre el tren y la posterior denegatoria sumarísima del remedio que Grupo Nación tiene planteado para el tránsito en la zona (…) no puede caber duda del cumplimiento de la amenaza anunciada desde la campaña. Vale señalar que al día siguiente de la conferencia sobre los bonos, el director ejecutivo de Grupo Nación, Nombre37, dio amplias explicaciones públicas y mencionó el papel de Parque Viva en el flujo de la empresa. un día después, el gobierno cerró precipitadamente Parque Viva (…)”.Agrega que es una falacia el supuesto objetivo de La Nación de pretender estar por encima de la ley, según los términos señalados por el Presidente. Afirma que esto nunca fue alegado y, tanto Grupo Nación como ellos como individuos, se encuentran sometidos a las leyes. Indica que no pretenden que se realice una excepción odiosa o antidemocrática. Señala que, en este caso, se dio una desviación de poder para limitar indirectamente la libertad de expresión, cumpliéndose así con la amenaza girada en campaña, a la cual, aclara, el informe presidencial no hizo referencia en ningún momento. Agrega, respecto a la falacia de los alegatos sobre el cumplimiento del deber de proteger intereses sociales con el cierre de Parque Viva que “(…) NO es que los recurrentes pretextamos la libertad de expresión para eximir a Grupo Nación de cumplir la ley, es que el señor Nombre138 y la señora Ministra de Salud pretextan el cumplimiento del deber para materializar el propósito de silenciarnos expresado en la campaña electoral y debidamente documentado.Esa es, precisamente, la definición de desviación de poder. Como es evidente a partir de su arbitrariedad, precipitación, ensañamiento, carácter discriminatorio y empleo propagandístico, las medidas adoptadas no persiguen la satisfacción de intereses públicos, sino la de intereses espurios consistentes en represaliar a un medio de información, amenazarlo e intimidarlo para que no ejerza libremente su derecho a informar. Este el verdadero fin que tienen los actos administrativos adoptados. Nada tienen que ver con defender la pensión de la abuelita, impedir el ramal de 150.000 millones de colones del 'trencito", o mejorar el acceso de cuerpos de socorro a una zona donde el colapso vial se produce todos los días, como en tantos otros lugares, al menos dos veces al día, con concierto o sin él, según testimonio de los residentes y experiencia de cualquiera que haya transitado por el sitio (…)”.Igualmente, se refiere a la falacia del plan remedial. Indica al respecto que, tanto el señor Nombre138 como la señora Ministra de Salud, insisten en sus informes en el carácter temporal de la suspensión de permiso sanitario de funcionamiento de Parque Viva y la exigencia de un plan remedial "que abarcara la solución a la problemática con los accesos" y añaden que Grupo Nación no lo ha presentado. Sostiene que la temeridad del argumento resulta obvia cuando se constata que los informes de inspección no encuentran problema con los accesos al parque (que son cuatro, no dos como dice el informe de la señora Ministra), ni con las instalaciones. El problema son las calles fuera del parque y ya se hizo referencia sobre la permisividad del Estado frente al desarrollo urbanístico de la zona, sin proveer la infraestructura necesaria. Argumenta que buena parte de ese desarrollo se produjo después de la instalación de Parque Viva y décadas después del Autódromo La Guácima donde se celebraban, con todos los permisos, actividades masivas, incluso mayores.Afirma que no le corresponde a Grupo Nación construir la infraestructura necesaria para adecuar las vías al desarrollo actual y futuro, pero tiene planteado un plan para hacerlo por su cuenta. La iniciativa tiene las cartas de no objeción necesarias y está pendiente de aprobación por las instancias que el mandatario ha criticado en otros casos por lentitud. Reitera que, pese a lo anterior, el mandatario, en conferencia de prensa del 13 de julio, sin ningún estudio y contra los criterios ya externados por los expertos, anunció su oposición a la idea con la absurda noción de que colapsaría la Dirección01 "arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas." Señala expresamente que “(…) Así las cosas, el problema es externo a Parque Viva, pero la solución que plantea Grupo Nación es, de pronto, inaceptable y el único plan remedial es adentro de las instalaciones, donde el Ministerio de Salud no encontró ningún problema, pero solo así puede exigir un plan remedial que haga inviable la operación del parque mediante un drástica (sic) reducción del aforo.Ese es el verdadero objetivo. La posición es tan irracional, que el señor Nombre138 sostiene una distinta en su informe, "Cabe recordar que, las autoridades han exigido a otros grupos comerciales, la construcción de accesos de ingreso a centros comerciales de gran envergadura, cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, ejemplos de esto son los casos de EPA en Desamparados y City Mall en Alajuela, quienes realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos", dice el informe. ¡Estupendo! Obviemos señalar que los ejemplos son de establecimientos a los que se les exigieron las obras de acceso para permitir la construcción. Ese no es el caso de Parque Viva, construido hace más de ocho años con todos los permisos necesarios. Obviemos, también, que la misma exigencia no se le hizo a los establecimientos y proyectos habitacionales que llegaron a La Guácima después.Grupo Nación, lejos de situarse por encima de la ley, pretende el mismo trato, si bien extemporáneo y discriminatorio en relación con otros establecimientos de la zona. Quiere la oportunidad de realizar "cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos", pero el Nombre138 lo considera, al mismo tiempo, necesario en el informe a la Sala e imposible en el podio de sus conferencias de prensa. Las contradicciones son tan evidentes que el señor Nombre138 presenta como prueba una noticia de un medio afín a su administración con el título "Parque Viva reconoció problemas de caos vial desde el 2017 y esperó hasta el 2021 para buscar solución". La solución a la cual se refiere la publicación es la construcción del moderno acceso a cuatro carriles que el señor Nombre138 declara imposible en conferencia de prensa y, al mismo tiempo, exige, según él, para aplicar la ley igual que se hizo con EPA en Desamparados y City Mall en Alajuela.No obstante su declarada oposición al acceso, cita una noticia que reprocha a Grupo Nación haber esperado cuatro años para resolver el problema de infraestructura pública. La noticia es imprecisa en lo relativo a fechas. Como se constata en el texto, La Nación informó sobre el acceso el 27 de Abril del 2021. Eso no significa que esperara hasta el 2021 para procurar una solución. Para esa fecha, los diseños ya estaban listos y la compra de terrenos se había iniciado a inicios del 2020. El "master plan" diseñado con ayuda de asesores estadounidenses, se hizo en el 2019, pero no hay motivo para detenerse en la falsedad de la espera hasta el 2021 "para buscar solución". Si lo damos por cierto, tenemos que Grupo Nación planteó un "plan remedial" no solo para Parque Viva sino para la comunidad entera, un año antes de la suspensión de los permisos de funcionamiento. ¿Qué espera el gobierno para la supuesta aplicación de la ley como se hizo "con EPA en Desamparados y City Mall en Alajuela"?"¿Qué espera para actuar con la misma urgencia aplicada a "Evolution Free Zone"? En ese caso, el Nombre138 afirmó, en conferencia de prensa: "Voy a contar una anécdota. una de las empresas más importantes del mundo, literalmente: quiere construir en Costa Rica 80,000 metros cuadrados de planta para contratar a 5.000 costarricenses en la zona occidental, en puestos de altísimo valor agregado y salarios. ¡24 meses pegados para ver si les dejaban hacer una salida de la ruta 1 hacia esa planta enorme!" (Ver noticia titulada "Los mandos medios a cada rato se atraviesan", La Nación, 4 de junio 2022. Ya para el 18 de junio, La Nación titulaba: "Zona franca en Grecia iniciará obras después de 24 meses varada por rechazo de acceso a ruta 1". Luego de severas críticas públicas a la Comisión de Carreteras de Acceso Restringido y de su intervención por el Ministro de Obras Públicas y Transportes, el problema se resolvió.La zona franca atraerá 5,000 personas diarias en su primera etapa, pero el plan es crear 18.000 empleos. Ese es, por día, el número de personas que excepcionalmente asiste, un par de veces al año, a un concierto en Parque Viva. La noticia citada por el señor Nombre138 como prueba solo demuestra que Grupo Nación está dispuesto a resolver por su cuenta un problema de la comunidad que el Estado no ha querido solucionar, que la empresa ha sido transparente en su valoración de la vía pública circundante y que el "plan remedial" está planteado desde el 2021. Pero el verdadero propósito del "plan remedial" exigido por el gobierno, como dijimos en el recurso, es "remediar" el periodismo crítico mediante una desviación de poder para ejercer presión sobre la empresa, consecuente con la amenaza de campaña, y no enfrentar el problema de los embotellamientos (…)”. Reitera que son un grupo de profesionales a quienes se les pretenden limitar la libertad de expresión mediante acciones arbitrarias contra las “estructuras” que sustentan su libre ejercicio del periodismo, tal y como lo prometió el mandatario.Señala que se trata de un ataque indirecto, el cual prohíbe el artículo 13.3 de la Convención y la jurisprudencia de la Corte Interamericana. Afirma que nunca se ha dicho que el pago de sus salarios depende de Parque Viva, como se afirmó en el comunicado de prensa de la Presidencia. Menciona que, para constatar todo lo dicho, basta leer el recurso, pero conviene señalar la insistencia en la supuesta demostración de que "dependen de este lugar para subsistir financieramente". Aduce que la infundada obsesión con las finanzas de la empresa se extiende hasta la interpretación de lo que no han dicho. Indica que “(…) si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivó la amenaza proferida en campaña (…)”. Agrega que, como si se tratara de una autoridad incontestable, el Nombre138 citó al Nombre138 del Colegio de Periodistas para rebatir que estemos ante un abuso contra la libertad de expresión.Señala que lo único que demuestra este apartado del informe es que el Nombre138 del referido colegio, al cual no están afiliados gran cantidad de periodistas y nunca ha condenado los conocidos ataques del señor Nombre138 a la prensa "canalla", tampoco quiere contradecirlo en esta materia o ignora las disposiciones de la Convención Americana y la jurisprudencia de la corte hemisférica Afirma que se debe tomar en cuenta que seis expresidentes del ciado colegio se han manifestado con posiciones contrarias a lo dicho por el actual Nombre138 de esa corporación. En resumen, señala expresamente que “(…) El informe rendido a la sala por el señor Nombre138 carece de fundamentos fácticos; se basa en una serie de informes que, lejos de haber servido como base legítima para el cierre del Parque Viva, se utilizaron con posterioridad para justificarlo; distorsiona con frivolidad incompatible con los estrados judiciales una serie de hechos, y, por tanto, en ningún momento justifica la acción ante la que nos hemos amparado los recurrentes.Lo anterior demuestra sin asomo de duda razonable que estamos, simple y llanamente, ante un uso ilegitimo de las potestades administrativas del Estado para vulnerar el ejercicio de un derecho fundamental, como es la libertad de expresión Esto, a la vez, constituye una vulneración de normas elementales de la convivencia democrática (…)”.
6. 6Por resolución de las 12:55 hrs. de 1° de septiembre de 2022, el Magistrado Instructor de este asunto le solicitó a la Ministra de Salud aportar ante la Sala una copia física y legible de la documentación enviada junto con el informe, a saber, 164 folios relacionados con la denuncia formulada en contra de Parque Viva y la orden sanitaria finalmente girada.
7. 7El 5 de septiembre de 2022, la Ministra recurrida cumplió lo requerido mediante resolución de 1° de septiembre de 2022.
8. 8Por escrito aportado a la Sala el 13 de octubre de 2022, Nombre23, en su condición de Ministra de Salud, señala expresamente lo siguiente: “(…) ADICIÓN A LAS CONCLUSIONES: Solicito se tenga por demostrado que las autoridades del Área Rectora de Salud de Alajuela 2, en atención a denuncia realizada en fecha 05 de julio del 2022, al ser las 13:50 horas del 05 de julio de 2022, llevaron a cabo una inspección físico-sanitaría al inmueble de cita “Parque Viva”, ubicado en La Guácima de Alajuela, incluyendo la valoración correspondiente a sus vías de acceso, desprendiéndose del informe N°MS-DRRSCN-DARSA2-1641-2022 en lo que interesa, que se hicieran traslado de la denuncia al Ministerio de Obras Públicas y Transportes, para que estos valoraran las condiciones denunciadas, por ser competencia de esa dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros).Teniendo como efecto lógico la elaboración del oficio N°MS-DM-5754-2022, por parte de este Despacho Ministerial y con carácter de urgencia, se solicitó al Sr. Nombre25, en su condición de Ministro de Obras Públicas y Transportes, y a la señora Nombre26, Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las vías de acceso y colindantes al recinto comercial privado, denominado “Parque Viva”, con el fin de dilucidar aspectos estructurales y de seguridad humana, específicamente en cuanto a los aspectos de capacidad que tienen sus vías de acceso, entre otras. Como resultado de lo anterior mediante memorial N°DVTSV-2022-0341 de fecha 06 de julio del 2022, la Licda. Nombre26, Viceministra de Obras Públicas y Transportes, remite el oficio N°DVT-DGIT-2022-339, suscrito por el Ing. Nombre27, funcionario de la Dirección General de Ingeniería de Tránsito, el cual emite criterio indicando en lo que interesa, para la atención de este asunto, lo siguiente: “…la Dirección02 es una calle urbana de dos carriles -un carril por sentido de circulación-, donde ese tipo de vía podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido y, de acuerdo con las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada, siendo que se puede asegurar que en el momento en que se realizan los eventos de concentración masiva, la vía de acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado.Refiere que, bajo un escenario conservador, sin considerar los estacionamientos periféricos al parque, ni la utilización de la pista de carreras, se tendría una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar…” No está de más señalar que el Comité Asesor Técnico de Concentraciones Masivas, mediante Acta N°28643-S-MOPT-SP del 07 de Julio de 2022, indica a esta representación Ministerial, lo que sigue: “…se acuerda proponer a las autoridades correspondientes una Orden Sanitaria de Cierre para eventos masivos, del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual debe ser puesto en conocimiento de este Comité Asesor técnico de Concentraciones Masivas…” Siendo así, ante observaciones y recomendaciones de especialistas en la materia, en fecha 08 de julio de 2022, según se mencionó ampliamente en Informe N°MS-DM-AU-3985-2022, las autoridades del Área Rectora de Salud de Alajuela 2, giraron la orden sanitaria N°MS-DRRSCN-DARSA2-OS-0368-2022, todo bajo el principio precautorio y en atención a los oficios: MS-DM-55814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339, emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, donde se ordenó, en lo pertinente, lo que sigue: “…la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud…Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades…” Adicional a esto es preciso recordar que existió informe N°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Nombre29, Sub-Gerente operativo de la Cruz Roja Costarricense; informe N°CRC-GG-OF-012-2022 del 12 de Julio de 2022, suscrito por el señor Nombre30, Gerente General de la Asociación Cruz Roja Costarricense; Informe técnico N°CBCR-027150-2022-OPOB-00741 del 10 de Julio de 2022, suscrito por el señor Nombre31, de Operaciones de Bomberos; Informe N°911-DI-2022-2202 del 11 de julio 2022, suscrito por la Señora Nombre32 del sistema de Emergencia 9-1-1, donde la Cruz Roja Costarricense, donde en síntesis se afirma que: “…las vías públicas de la comunidad de La Guácima y zonas aledañas resultan insuficientes para el rápido acceso de unidades de emergencia, situación que se puede agravar ante eventos de concentración masiva, los cuales pueden verse afectados por el alto congestionamiento vial y que es ocasionado por la gran cantidad de vehículos que se ubican en los costados de la vía, generando atrasos de hasta 30 minutos para su llegada, donde atienden accidentes de tránsito, incendios estructurales y casos médicos, donde en todos los casos está en riesgo la vida de las personas, por lo que se requiere de un acceso rápido y oportuno de las unidades de rescate especializadas…” explicado con detalle mediante informe MS-DM-AU-3985-2022.Detalles importantes como los informes también suministrados por parte del Dirección01 donde efectivamente existen un sin número de denuncias que son ingresadas al sistema, en mayor número cuando se están llevando a cabo en el lugar eventos de concentración masiva, así como por vehículos mal estacionados, aglomeración de personas, embotellamiento de vehículos, riñas por no poder salir, colisiones, quejas por escándalos ocasionados por actividades propias del “Parque Viva”. Por parte de esta representación Ministerial se dio atención a todos y cada uno de los recursos presentados contra la Orden Sanitaria aquí denunciada, siempre atendiendo en tiempo y dentro del principio de legalidad exigido, no dejando duda que ante el mandato Constitucional y los miramientos y recomendaciones de las Instituciones involucradas, debiendo actuar de manera inmediata esta representación Ministerial en aplicación al marco normativo que la regula, todo en apego a la Misión y Visión de mejorar la calidad de vida y el desarrollo social de la población.ADICIÓN A LA PETITORIA: A la luz de los hechos manifestados y la prueba existente y presentada mediante el Informe N°MS-DM-AU-3985-2022 y el presente, respetuosamente solicito a la honorable Sala Constitucional, DECLARAR SIN LUGAR el presente recurso de amparo, pues resulta evidente de lo informado, que la suscrita en acatamiento con el mandato Constitucional y la aplicación del principio precautorio, no puede ni debe obviar las recomendaciones técnicas existentes y las denuncias presentadas ante este Ministerio, es por ello que al no violar ninguno de los derechos constitucionales que tienen los actores, y se actúa acorde a nuestra legislación, solicito de manera respetuosa se EXIMA DE TODA RESPONSABILIDAD A LA SUSCRITA MINISTRA DE SALUD, COMO AL MINISTERIO DE SALUD Y SE DECLARE SIN LUGAR EL PRESENTE RECURSO DE AMPARO (…)”.
9. 9En la substanciación del proceso se han observado las prescripciones de ley.

Redacta el Magistrado Nombre38; y,

CONSIDERANDO:

I. OBJETO DEL RECURSO

El recurrente, en su condición de Director del Diario La Nación y otros periodistas de ese medio, acusan que el pasado 8 de julio de 2022 –a modo de materializar las amenazas giradas por el Nombre138 Nombre01 públicamente semanas atrás en contra de dicho diario–, el Ministerio de Salud ordenó el cierre de Parque Viva (adquirido por el Grupo Nación S.A. para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet), a través de un acto arbitrario y carente de todo sustento, lo cual, a su vez, representa una violación indirecta a la libertad de expresión y, por ende, contraviene lo dispuesto en el ordinal 29 constitucional y en el artículo 13.3 de la Convención Americana sobre Derechos Humanos.

II. HECHOS PROBADOS

De relevancia para dirimir el presente recurso de amparo, se tienen por acreditados los siguientes:

A. HECHOS RELACIONADOS CON LA ORDEN SANITARIA GIRADA A PARQUE VIVA:

• 1)El Parque Viva se ubica en La Guácima de Alajuela. En dicho sitio funcionaba anteriormente –específicamente desde los años setenta–, el denominado Autódromo La Guácima (ver prueba).
• 2)El referido sitio fue adquirido en el año 2013 por el Grupo Nación S.A. (corporación de la cual forma parte también el Periódico La Nación), como medio para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet (ver prueba).
• 3)Por oficio No. DGIT-ED-5935-2014 de 1° de septiembre de 2014, la ingeniera de la Unidad de Permisos y el Jefe del Departamento de Estudios y Diseños, ambos de la Dirección General de Ingeniería de Transito del MOPT, señalaron lo siguiente respecto al entonces proyecto Parque Viva: “(…) SOBRE EL ESTUDIO DE IMPACTO VIAL Una vez realizada la revisión del estudio de impacto vial presentado (para las condiciones de funcionamiento típico del Centro de Eventos La Guácima), esta Unidad indica que desde el punto de vista funcional no tiene objeción alguna con el proyecto. Lo anterior se debe a que esta Unidad comprobó que con la implementación de las medidas de mitigación planteadas a partir del análisis de capacidad realizado, los niveles de servicio (NDS) y longitudes de cola logran mantenerse en niveles adecuados. La aprobación del presente EIV tiene vigencia durante un año si las condiciones del tránsito y la vialidad aledaña no cambian significativamente y el proyecto es construido antes de finalizado este periodo, en caso contrario esta Dirección General se reserva el derecho de solicitar la actualización del estudio.

Además, se le recuerda que la autorización corresponde exclusivamente para el proyecto presentado, por lo que cualquier modificación en tamaño, uso o de cualquier otra índole debe ser analizada por la Dirección General de Ingeniería de Tránsito para evaluar las nuevas condiciones, de lo contrario esta autorización pierde su validez (…)” (ver prueba).

• 4)Por oficio No DVT-DGIT-ED-2015-4056 de 8 de octubre de 2015, ingenieros de la Unidad de Permisos de la Dirección General de Ingeniería de Transito del MOPT, señalaron lo siguiente respecto al proyecto bajo estudio: “(…) Se les comunica que, se les recibe las ampliaciones y la señalización en la intersección # 3 con la Dirección04 para el Proyecto: Centro de Eventos La Guácima. ubicada en el Distrito N° 05: la Guácima, Cantón NB 01: Alajuela, Provincia N° 02: Alajuela, en la propiedad inscrita ante el Catastro Nacional con el numero SJ-1244439- 2007, cuyo permiso fue tramitado por este Departamento bajo el expediente ED-AC-13-0081, según el diseño que consta en las láminas 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10 firmadas por el profesional responsable, la ingeniera Nombre39, IC-16371. Lo anterior debido a que en inspección se constató la realización por parte del interesado de la respectiva señalización vertical y horizontal a satisfacción, acorde con las directrices del Departamento de Señalización Vial de esta Dirección General, y de conformidad con el Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA).

Con base en lo anterior, esta Unidad Técnica no tiene objeción alguna, desde el punto de vista funcional y de señalización (no incluye calidad de la demarcación horizontal y vertical), en el uso del acceso en referencia (…)” (ver prueba).

• 5)El Parque Viva obtuvo los permisos requeridos, por lo que en el año 2015 le fue otorgado el respectivo permiso sanitario de funcionamiento. En ese mismo año 2015, se llevó a cabo la reinauguración del mencionado sitio (ver prueba).
• 6)Las autoridades del Ministerio de Salud renovaron al Parque Viva el permiso sanitario de funcionamiento No. MS-DRRSCN-DARSA2-RPSF-0177-2019 con vigencia hasta febrero de 2024 (ver prueba).
• 7)Desde aproximadamente el año 2019, Grupo Nación S.A. dio inicio a un proyecto para construir, en los próximos años, un acceso de cuatro carriles que comunica la Dirección05 con el Parque Viva (o el proyecto a futuro denominado Ciudad Viva) (ver prueba).
• 8)El 27 de abril de 2021, en la sección de entretenimiento del medio periodístico La Nación, se publicó la siguiente nota: “Parque Viva por la pista: así será el acceso directo previsto desde la Dirección01”. Adicionalmente, dicha noticia consignó expresamente lo siguiente: “(…) Desde su inauguración, en el 2015, Parque Viva se ha consolidado como uno de los espacios predilectos para la producción de actividades masivas en Costa Rica, sean conciertos, competencias de motores, ferias y exposiciones y más. Si bien Parque Viva cuenta con distintas rutas públicas de acceso, las mismas presentan limitaciones para asimilar el fluido movimiento de una gran cantidad de vehículos, como las que se producen cuando han presentado espectáculos a lleno completo en el Anfiteatro Coca-Cola (…) Por esto Grupo Nación, propietario de Parque Viva, se dio a la tarea de diseñar una vía directa desde la cercana ruta 27 que comunica a San José con Caldera, así como de adquirir los terrenos necesarios para poder concretar dicho acceso.

Esa etapa del proceso ya se completó y la empresa ahora se abocará a tramitar los permisos correspondientes para echar a andar la obra (…) El diseño de la nueva ruta, que será de uso público plantea una mejora sustancial en los accesos que unen a la Dirección01 con La Guácima. En dicha intersección se propone construir dos rotondas, así como una moderna y amplía vía pública de cuatro carriles (dos en cada sentido) que conducirá hasta Parque Viva, con una extensión de más de 1.2 kilómetros (…)” (ver prueba).

• 9)El citado proyecto vial, en el año 2021 y a inicios de 2022, contó preliminarmente con el visto bueno de una serie de instancias gubernamentales. Así, mediante oficio No. DVT-DGIT-ED-2021-1845 de 21 de septiembre de 2021, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, consignaron lo siguiente: “(…) Esta Dirección mantiene su criterio de no objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, emitida el 13 de julio del año en curso mediante oficio DVT-DGIT-ED-2021-1347; por lo que razona pertinente la aprobación del anteproyecto en mención (…)”. Por oficio No. GCTT 34-2021-0340 de 28 de septiembre de 2021, el Gerente a.i. de Contratación de Vías y Puentes del Consejo Nacional de Vialidad, señaló lo siguiente “(…) En relación al proyecto indicado en la referencia, una vez revisado por los ingenieros de las diferentes áreas técnicas de la Dirección de Diseño de Vías y Puentes, se determina que: Se cumplió con la información solicitada; sin embargo, se aclara que, en la etapa de diseño se deben respetar los radios mínimos de rotondas, radios de giro y ejes geométricos para el vehículo de diseño del proyecto.

En virtud de lo anterior indicado, se recomienda aprobar este Anteproyecto (…)”. Por oficio No. CNC-APM-SJC-0608-2021 de 12 de octubre de 2021, la Gerente de Proyecto del Concejo Nacional de Concesiones, entre otros aspectos, dispuso otorgar la “No objeción” al anteproyecto de acceso desde la ruta nacional No. 27 a Ciudad Viva. Mediante oficio No. CCAR-2021-373 de 28 de octubre de 2021, el Secretario de la Comisión de Carreteras de Acceso Restringido del Consejo Nacional de Viabilidad indicó que dicha comisión había acordado “(…) aprobar el anteproyecto de conformidad con los informes de las unidades técnicas (…)”. Por oficio No. DVT-DGIT-ED-2022-0088 de 18 de enero de 2022, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes señalaron lo siguiente: “(…) Esta Dirección no tiene objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, por lo que razona pertinente la aprobación del proyecto en mención (…)” (ver prueba).

• 10)Por oficio No. MS-DRRSCN-DARSA2-4070-2021 de 16 de diciembre de 2021, el Director del Área Rectora de Salud Alajuela 2 del Ministerio de Salud otorgó a Parque Viva visto bueno a los aforos declarados para las instalaciones de anfiteatro, salones y graderías del autódromo. En ese particular, se permitieron 18203 ocupantes en el anfiteatro, 12450 ocupantes en salones y 2901 ocupantes en graderías (ver prueba).
• 11)Mediante oficio No. MS-DRRSCN-DARSA2-0163-2022 de 20 de enero de 2022, autoridades del Área Rectora de Salud Alajuela 2 dispusieron la ampliación del aforo de graderías de Parque Viva a 8841 ocupantes (ver prueba).
• 12)A una hora no precisa del 5 de julio de 2022, se presentó ante el Despacho de la Ministra de Salud una denuncia anónima en contra del funcionamiento del Parque Viva, a la cual se le asignó el número 243-2022. En tal oportunidad, el denunciante marcó o completó, en el machote o formulario establecido para presentar dicha gestión, los siguientes aspectos relacionados con el motivo de su denuncia “2.1. Denuncias por asuntos relacionados con condiciones estructurales de edificios: a) Problemas estructurales (estado de paredes, techos, pisos, entre otros) (…) c) Incumplimiento de plan de emergencias para prevención y protección contra incendios (…) f) Condiciones de seguridad e higiene”. Adicionalmente, el denunciante expuso expresamente lo siguiente: “(…) Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. El problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo.

Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, tiroteos, entre otros eventos trágicos que podrían ocurrir en eventos masivos. Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar.

En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes Nombre01 y otorgarles el mayor grado de bienestar. Como prueba adjunto 8 fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, adjunto 2 notas de medios de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos (…)” (ver informe y prueba).

• 13)Por oficio No. MS-DM-5754-2022, rubricado digitalmente a las 12:24:14 hrs. de 5 de julio de 2022, la Ministra de Salud, con carácter de urgencia, solicitó al Ministro de Obras Públicas y Transportes y a la Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado Parque Viva. En tal ocasión, se indicó expresamente lo siguiente: “(…) El criterio técnico se requiere para dilucidar aspectos estructurales y de seguridad humana. Por ello, deben considerarse los aspectos de capacidad que tienen las carreteras en el escenario de la enorme cantidad de vehículos y personas que al mismo tiempo asisten a los eventos masivos de dicho lugar, en relación con aspectos de eventuales emergencias, respuestas de acceso de cuerpos de socorro, riesgos por situaciones de conflictos, etc. (…)” (ver informe y prueba).
• 14)Por oficio No. MS-DM-5756-2022, rubricado digitalmente el 5 de julio de 2022 a las 12:38:24 hrs, la Ministra de Salud trasladó dicha denuncia para su atención a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte de ese mismo Ministerio (oficina ubicada en Heredia) (ver informe y prueba).
• 15)La mencionada denuncia fue recibida en el Área Rectora de Salud de Alajuela 2 a las 12:41 hrs. de 5 de julio de 2022, según consta en el respectivo sello físico consignado en el documento (ver prueba).
• 16)Las autoridades del Área Rectora de Salud de Alajuela 2, al ser las 13:50 hrs. de 5 de julio de 2022, llevaron a cabo una inspección físico sanitaria en el Parque Viva (acta de inspección No. MS-DRRSCN-DARSA2-1639-2022). Producto de dicha inspección se elaboró el informe No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, donde se consignó lo siguiente “(…) Según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-IT-1639-2022 el día 05 de julio del 2022 al ser las 13:50 horas se realizó la visita específica en sitio para valorar lo expuesto por la parte denunciante. Respecto a la problemática denunciada, en cuanto al apartado de problemas estructurales, a lo interno de las instalaciones del recinto durante el recorrido realizado no se constataron problemas estructurales visuales relacionados con aspectos físico-sanitario, el estado de las paredes, pisos, servicios sanitarios y demás espacios de convivencia humana no presentaba problemas observables.

En el apartado de incumplimiento del plan de emergencia, en sitio se evidenció la presencia de cuatro planes de emergencias, correspondientes a la propia sectorización que la empresa implementa para sus instalaciones, teniendo un plan específico para el Centro de Eventos, El anfiteatro Coca Cola, el Circuito de Competencias y las Áreas Comunes, en sitio se corroboró que las señalizaciones respectivas se encontraban instaladas, se evidenció la presencia del equipo de combate contra incendios y de los respectivos implementos (comida, botiquín, férulas, entre otros). Con respecto a las condiciones de seguridad e higiene, durante el recorrido no se evidencia presencia de riesgos o condiciones inseguras que puedan afectar la integridad de los colaboradores de la empresa. En cuanto a lo señalado por el denunciante sobre el problema vial, cabe resaltar que éste no es competencia del Ministerio de Salud, sin embargo, se realizó el análisis de los puntos de acceso y salida de las instalaciones, como se muestra en el anexo 1, las instalaciones cuentan con cuatro puntos de acceso para ingreso y salida de vehículos y se cuenta con una capacidad de 940 automóviles en el parqueo cercano al acceso 2, además de contar con espacio para 3000 vehículos en el sector del circuito de competición que se encuentra cerca del acceso 3 y 4 del Parque Viva, además de esto se muestra que los cuatro accesos se encuentran interconectados a lo largo de las instalaciones (se realizó un recorrido para comprobar esto), lo cual favorece la salida de los vehículos. 3.

CONCLUSIÓN. Por lo expuesto, se puede concluir que las instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros) (…)” (ver informe y prueba).

• 17)Por oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334 (enviado el 5 de julio de 2022) las autoridades del Ministerio de Obras Públicas y Transportes se refirieron a la solicitud formulada por la Ministra de Salud mediante oficio No. MS-DM-5754-2022 (ver informe y prueba).
• 18)Mediante oficio No. DVTSV-2022-0341 de fecha 6 de julio del 2022, la Viceministra de Obras Públicas y Transportes remitió a la Ministra de Salud el oficio No. DVT-DGIT-2022-339, suscrito ese mismo día por el Director General de Ingeniería de Tránsito dando respuesta a lo solicitado por oficio No. MS-DM-5754-2022. Asimismo, en este primer oficio se solicitó dejar sin efecto el oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334 enviado por correo electrónico el día anterior en la tarde (sea, el 5 de julio de 2022), con el objetivo de incluir más información al análisis del acceso al Parque Viva. En el oficio No. DVT-DGIT-2022-339 se indicó expresamente lo siguiente: “(…) 1. El Parque Viva es un recinto que abrió sus puertas en el 2015 y se utiliza para realizar diversos tipos de eventos, como por ejemplo: eventos deportivos de motores, congresos, ferias, así como eventos de concentración masiva como conciertos y festivales. 2.

De acuerdo a la información brindada en la página Web del Parque Viva, la capacidad del recinto es de hasta 20.000 mil personas. Además, cuenta con 4.900 espacios para estacionamiento privado, que se puede ampliar hasta en 6.000 espacios utilizando la pista de carreras. 3. En la actualidad, la Dirección General de Ingeniería de Tránsito no tiene ninguna solicitud relacionada con el acceso existente del Parque Viva. Tampoco ha realizado ningún estudio funcional en las vías con el escenario de un evento masivo como los que se realizan en el lugar. 4. El Parque Viva de (sic) localiza frente a una ruta cantonal denominada Dirección02. Al ser una ruta cantonal, le corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso (…) 5. La Dirección02 es una calle urbana de dos carriles, un carril por sentido de circulación. Este tipo de vías podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido.

De acuerdo a las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada. De acuerdo a los datos antes indicados, se puede asegurar que en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Bajo un escenario conservador, sin considerar estacionamientos periféricos al parque ni la utilización de la pista de carreras, tendríamos una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar (…)” (ver informe y prueba).

• 19)Los anteriores oficios Nos. DVTSV-2022-0341 y DVT-DGIT-2022-339 fueron remitidos por parte de la Directora de la Dirección Regional de Rectoría de la Salud Central Norte del Ministerio de Salud al Director del Área Rectora de Salud Alajuela 2, mediante oficio No. MS-DRRSCN-1831-2022 de fecha 6 de julio de 2022 (ver prueba).
• 20)Por oficio No. MS-DM-5814-2022 de 7 de julio de 2022, la Ministra de Salud remitió a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte, lo consignado en el citado oficio No. DVT-DGIT-2022-339 (ver prueba).
• 21)El Comité Asesor Técnico de Concentraciones Masivas celebró una sesión extraordinaria el 7 de julio de 2022 a las 14:30 hrs. con la presencia de la Ministra de Salud en calidad de coordinadora, del Ministro de Obras Públicas y Transportes, de funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. En el acta de dicha sesión No. 28643-S-MOPT-SP, se consignó lo siguiente: “(…) Con base en las competencias que establece el artículo 4° del decreto ejecutivo 28643 se procede a conocer el caso. El señor Nombre40 del Ministerio de Salud, a petición de la señora Ministra, lee el documento del Área Rectora de Salud Alajuela número MS-DRRSCN-DARSA2-1641-2022 y que se relaciona con el oficio MS-DM-5756-2022 de la Ministra de Salud.

El señor Nombre41 interviene. Pone en perspectiva la situación de las calles de acceso. El señor Nombre42 lee el informe DVT-DGIT-2022-339 (dirigido a la Ministra de Salud con la nota DVTS-2022-0341). La señora Ministra interviene. Don Nombre43 del Cuerpo de Nombre140 interviene y apunta las dificultades que tiene el cuerpo de Nombre140 para ingresar, por el tipo de unidades de emergencias que se tienen, las cuales miden 11 metros de largo y 3 metros de ancho, por lo que se nos dificulta el paso en las condiciones de tener vehículos a ambos lados. Tiene que ampliarse las vías de acceso o que exista otro acceso donde haya espacio para el tránsito y acceso de unidades de emergencia. El señor Nombre41 interviene. Señala lo inadecuado del uso del suelo. Debe ser ampliada la ruta para garantizar un flujo adecuado en los eventos y en las emergencias durante los eventos. Debe mejorarse esa ruta cantonal terciaria.

Hay riesgo para la vida humana. Interviene don Nombre44 de la Comisión Nacional de Emergencias. Hay un permiso de funcionamiento vigente. Hay que tener cautela y ver la realidad del País. Interviene don Nombre40. Hay otros lugares con situaciones similares. Interviene la señora Ministra de Salud, haciendo una réplica de lo manifestado por don Nombre145. Interviene don Nombre45. El recinto ha presentado problemas desde que era el autódromo la Guácima. Solo tiene una calle de acceso y eso presenta un problema porque hay que pasar por zonas residenciales. Aún no hay un reglamento de eventos masivos. En este caso Parque Viva no es adecuado para eventos masivos. Nombre46, Interviene he (sic) indica que desde el 01 de enero del 2022, hay 18 reportes en lo que va del año de problemas de tránsito, más de 30 colisiones, 4 reportes de vehículos mal estacionados, 5 riñas, 3 incidentes de eventos contra el orden, entre otros reportes.

Interviene don Nombre47. Manifiesta preocupación por la cantidad de ambulancias que atienen cada evento, donde a veces no supera una sola unidad. ACUERDO: Vistos los oficios mencionados, y la recomendación del Ministerio de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una orden sanitaria de cierre para eventos masivos del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual de ser puesto en conocimiento de este Comité Asesor Técnico de Concentraciones Masivas (…)”. Las autoridades del Ministerio de Salud, del MOPT, del Cuerpo de Bomberos, de la Comisión Nacional de Emergencias y de la Cruz Roja Costarricense, votaron a favor de dicha propuesta (ver informe y prueba).

• 22)Lo dispuesto en el referido acuerdo fue comunicado por la Ministra de Salud a la Directora Regional Rectoría de Salud Central Norte a través del oficio No. MS-DM-5838-2022 de 8 de julio de 2022. En tal oficio se indicó lo siguiente: “(…) Se remite tal insumo para su valoración y atención, y para que se proceda conforme a la normativa interna institucional, dentro del marco de la legalidad (…)” (ver informe y prueba).
• 23)El 8 de julio de 2022, las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud, emitieron la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (rubricada electrónicamente a las 12:37:21 hrs. del mismo 8 de julio de 2022). En tal orden se consignó expresamente lo siguiente: “(…) En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud.

Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades (…)”. Adicionalmente, se hizo referencia a las consecuencias de no cumplir lo señalado y se indicó que contra dicha orden procedía la interposición de los recursos de revocatoria con apelación en subsidio dentro de los cinco días hábiles posteriores a su notificación. Esta orden sanitaria fue notificada, vía correo electrónico, al representante de Parque Viva el 8 de julio de 2022 a las 12:40 hrs., indicándose que se adjuntaban “anexos de importancia”. Igualmente, esa comunicación se realizó de forma personal ese mismo día a las 14:15 hrs. (ver informe y prueba).

• 24)Por oficio No. MS-DM-5870-2022 de 8 de julio de 2022, rubricado digitalmente a las 17:05:24 hrs., la Ministra de Salud solicitó al Director del Cuerpo de Nombre140 y a la Presidenta de la Cruz Roja Costarricense lo siguiente: “(…) informes detallados y amplios, desde sus respectivos campos de competencias, con relación a la situación de Parque Viva en La Guácima de Alajuela, en el marco de la realización de eventos masivos y las situaciones de riesgo para la salud y la vida humana. Lo anterior como complemento al tema tratado en la reunión del Comité Asesor Técnico en Concentraciones Masivas del pasado jueves 7 de julio de 2022. Lo anterior a la mayor brevedad posible (…)” Lo dispuesto en este oficio le fue informado al Director del Área de Rectora de Salud Alajuela 2 por oficio No. MS-DRRSCN-1858-2022 de 11 de julio de 2022, suscrito por parte de la Dirección Regional de la Rectoría en la Salud Central Norte (ver prueba).
• 25)El 10 de julio de 2022, en la sección de política del medio periodístico La Nación, se consignó la noticia titulada “Quieren que desembarremos lo que ellos embarraron, dice dirigente comunal de la Guácima”. Un extracto de dicha noticia se cita a continuación: “(…) Mediante una llamada telefónica completamente inusual, el sábado 9 de julio, la dirigente comunal de la Guácima, Nombre20, recibió la petición del Gobierno para que se pronunciara a favor del cierre de Parque Viva, negocio propiedad de Grupo Nación. El hombre que la llamó, a quien no pudo identificar, le indicó que se encontraban en una reunión valorando el tema e, incluso, le facilitó el machote de una carta dirigida a la ministra de salud, Nombre48, con el único propósito de que le estampara la firma. La idea, le comentaron, es que la carta estuviera en manos de la ministra este mismo sábado, Nombre146, presidenta de la Asociación de Desarrollo Integral de la Guácima, negó esa solicitud (…) Por el contrario, convocó a una sesión extraordinaria de la junta de vecinos para ver si se pronuncian o no. En todo caso, advirtió, no replicarán el contenido del machote de la carta que les pasó el funcionario de la Dirección Nacional de Desarrollo de la Comunidad (Dinadeco).

La dirigente comunal reconoció que deben haber mejoras en las cercanías del Parque Viva, debido a las presas que se generan. No obstante, advirtió que, a su opinión, el Gobierno quiere “desembarrar” lo que ellos “embarraron”, con el cierre del centro de eventos (…)” (ver prueba).

• 26)Por oficio No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de 10 de julio de 2022, el Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela le informó el Viceministro de Seguridad Pública lo siguiente: “(…) La Dirección de la Fuerza Pública de Alajuela, ha venido enfrentando una situación de entorpecimiento en la atención de incidentes de carácter policial, en el perímetro externo inmediato del Parque Viva, situado en Rincón Chiquito en el distrito de La Guácima de Alajuela, en momentos en que se realizan actividades en ese lugar. Esta zona está catalogada por la Fuerza Pública como un área sensible; ya que convergen diferentes acciones delictivas, entre las que destacan delitos contra la vida (homicidios y heridos), asaltos, riñas, accionamiento de armas, robo y tacha de vehículos. Con relación al frecuente desarrollo de eventos masivos en el local comercial Parque Viva, durante este año; le refiero lo siguiente: Estas actividades tienen una capacidad dinámica de hasta un máximo de 27.000 personas, siendo el promedio por evento, de aproximadamente 18.500 personas (capacidad máxima del anfiteatro destinado a esos fines).

Siendo que dichos eventos se realizan con una frecuencia Semanal; tal cantidad de personas desplazándose al sitio, y permaneciendo en él durante el desarrollo de las actividades, generan enormes embotellamientos en el entorno inmediato y en la zona circundante; lo que repercute en un aumento sustancial de los tiempos de respuesta policial, a las emergencias reportadas al 911 y que son resorte de la Fuerza Pública; resultando con el menoscabo del servicio policial. Como ejemplo concreto; en el concierto denominado Nombre49, realizado el sábado 07 de mayo del año en curso; ante una emergencia médica, la Cruz Roja Costarricense requirió el auxilio policial para poder trasladar un paciente, dado que la cantidad de vehículos y personas en Vía pública impedían el movimiento de la ambulancia, siendo necesaria la intervención del Grupo de Apoyo Operativo, con aproximadamente doce oficiales para lograr la extracción del paciente, abriendo camino a pie durante largos 40 minutos.

Además de la tardanza en la atención de la emergencia ese recurso policial debió haber estado abocado al servicio de seguridad Ciudadana. Asimismo, es importante agregar que estos eventos masivos de alta frecuencia, provocan en las horas de su realización, un incremento ostensible en los delitos contra la propiedad. La afectación que generan las aglomeraciones de vehículos y personas, en las afueras del parque, durante el desarrollo de los eventos como se indicó anteriormente, reduce la movilidad policial, y produce un incremento de llamadas de vecinos al 911, por incidentes de alteración al orden público, riñas, violencia contra las mujeres, menores de edad expuestos al peligro, conducción temeraria, consumo de alcohol y drogas en vía pública. Es criterio de esta Dirección Regional, que la afectación al servicio policial durante los eventos masivos en la zona referida, es evidente, notoria, frecuente y repetitiva; dado que el impacto de incidencia delictiva diversa, que se genera por el conglomerado enorme de visitantes; afecta el normal desenvolvimiento de las actividades de la población de la zona, y las acciones policiales de carácter diaria.

Debido a la cantidad de participantes en los eventos, debe destinarse recurso policial ordinario y extraordinario en diferentes puntos del distrito, y normalmente cualquier incidente en un día normal se responde en un término de 10 a 15 minutos, sin embargo; cuando se llevan a cabo actividades en el Parque Viva el tiempo de respuesta ante una emergencia es superior a los 40 minutos, aunque se activen dispositivos de emergencia como luces y sirenas, ya que las calles de este sector son sumamente estrechas, son de un carril por sentido, sin islas para buses o espaldones. La Situación se complica aún más, cuando hay accidentes de tránsito o bien, los vehículos de las personas que asisten a las actividades, son estacionados de manera irresponsable a la orilla de la calle, en entradas a cocheras, e incluso en cruces o esquinas, tornándose materialmente imposible transitar por las calles principales o las secundarias que llevan a cualquier lugar no solo de Rincón Chiquito sino al resto del distrito de la Guácima, ya que pese que los conductores de vehículos que transitan en estas calles quieran ceder el espacio para que pasen las radio patrullas los vehículos no tienen para donde maniobrar y hacer espacio.

Durante una actividad a principio de año, un autobús que iba a recoger personas al lugar se fue en un hueco a la orilla de la intersección de la calle principal y Dirección05. Precisamente ese día habían ingresado alertas de pelea dual, con armas blancas, siendo que se tardó más de dos horas en llegar al lugar y cuando se llegó ya se habla concretado la riña. En este hecho, los vecinos fueron parte de los hechos por la situación imperante de obstrucción de las vías y entorpecimiento de la circulación de vehículos, lo que produce además una mala interpretación a la hora de analizar la respuesta policial. Por todo lo antes expuesto, se emite este criterio técnico concluyendo que efectivamente existe afectación y menoscabo del servicio policial, en el perímetro externo inmediato del Parque Viva cuando se realizan actividades de carácter masivo. Asimismo, existe un impacto negativo en la incidencia delictiva aumentando algunos fenómenos delictivos en ese lugar. Por último, la afectación que sufren los vecinos de la zona son evidentes y los tiempos de respuesta de las autoridades de emergencia, aumentan además significativamente (…)” (ver prueba).

• 27)El 10 de julio de 2022, con ocasión de lo requerido en el oficio No. MS-DM-5870-2022, se emitió el informe técnico No. CBCR-027150-2022-OPB-00741, suscrito por un funcionario de Operaciones de Nombre140 y dirigido a la Ministra de Salud, mediante el cual se consignó lo siguiente: “(…) Con relación a la situación del Parque Viva, ubicado en La Guácima de Alajuela, en el marco de la realización de eventos masivos y situaciones de riesgo para la salud y la vida Humana, indicó (sic): Las unidades extintoras del Benemérito Cuerpo de Nombre140 de Costa Rica, tienen una longitud aproximada de 11 metros y un ancho de 3 metros; esto hace que se requiera de suficiente espacio para poder maniobrar, ya sea cerca de la escena de incendio o durante la trayectoria hacia el lugar de la emergencia. La medida de ancho de la calle que se utiliza de forma normal para llegar a Parque Viva en la mayoría de su trayectoria mide aproximadamente seis metros, como se puede observar en esta fotografía, un autobús y un vehículo liviano, no pueden transitar de forma normal, para transitar, uno de ellos dos debe detenerse y dar paso (…) Igualmente existen tramos donde las medidas se reducen casi a cuatro metros, es decir una unidad de Nombre140 requiere de todo el espacio para poder transitar, tomando como referencia las siguientes fotografías (…) Debido al ancho de la calle, existen tramos donde no se puede realizar las maniobras de adelantamiento (…) Debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Nombre140 aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades (…)” (ver informe y prueba).
• 28)En el informe técnico No. CRC-GG-SO-OF-074-2022 de 11 de julio de 2022, suscrito por el Sub Gerente Operativo de la Cruz Roja Costarricense y dirigido a la Ministra de Salud con motivo de lo requerido a través del oficio MS-DM-5870-2022, se señaló lo siguiente: “(…) Como institución de primera respuesta se cuenta con amplia experiencia en la atención de eventos masivos en diferentes eventos y lugares, la Cruz Roja Costarricense ha tenido que atender pacientes en función de las actividades realizadas en el mismo, esto obedece a la cantidad de personas que asisten a las diferentes actividades que dependiendo del mismo, pueden ser varios miles de personas. (…) En el caso de los eventos que se desarrollan en el Parque Viva, es necesario aclarar que la Cruz Roja Costarricense no cubre tales actividades, sino que las empresas organizadoras del evento, contratan empresas privadas de ambulancias que brindan este tipo de servicios, siendo necesario indicar que en el país existen cerca de 70 empresas privadas que brindan servicio prehospitalario de traslado de pacientes, en consecuencia se aclara los videos de varias ambulancias que circulan en redes sociales, ligadas a la atención de casos de emergencia en Parque Viva no son de Cruz Roja.

Así las cosas, nuestra recomendación en este Comité Asesor Técnico ha sido históricamente manifestar la importancia de que se genere una regulación para el tema de eventos masivos, sabemos que el Ministerio de Salud tiene el Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud y que el Ministerio de Seguridad Pública cuenta con el Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. Sin embargo, hace unos 6 años se sugirió trabajar con el Algoritmo de Maurer que lo trabajan en Alemania. En términos generales, según la experiencia de la Cruz Roja Costarricense, cualquier lugar en el que se realizan eventos masivos debe tener una entrada y una salida para todos los vehículos que asisten a los eventos, y que permitan una adecuada circulación para los vehículos de emergencia, tanto para atender incidentes en el lugar del evento, como en zonas circundantes, así como vías que permitan la evacuación masiva de los participantes en caso de activarse alguna amenaza y contar con un Plan de Emergencias actualizado, que contemple una adecuada proporción de ambulancias en función de la cantidad de asistencias al evento (…)” (ver informe y prueba).

• 29)Mediante el oficio No. 911-DI-2022-2202 de 11 de julio de 2022, la Directora del Sistema de Emergencias 9-1-1 remitió a la Ministra de Salud un informe sobre eventos acaecidos en zonas circundantes al Parque Viva durante unas fechas específicas, sea, 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (v. gr. situaciones relacionadas con problemas de tránsito, vehículos mal estacionados, riñas de personas, una persona inconsciente y otra extraviada, etc.) (ver informe y prueba).
• 30)Por oficio No. DM-2022-3121 de 11 de julio de 2022, el Ministro de Obras Públicas y Transportes le indicó a la Ministra de Salud lo siguiente: “(…) En relación con la situación que se ha presentado con el cierre temporal sujeto a acciones remediales del Parque Viva, el Ministerio de Obras Públicas y Transportes emite el siguiente criterio considerando que: El Parque Viva contiene múltiples usos de suelo que pueden producir concentración masiva, entendida como eventos temporales que reúnen extraordinariamente a una cantidad de personas bajo condiciones de aglomeración en espacios físicos abiertos y/o cerrados, que por sus características de sitio suponen un escenario de riesgo o de amenaza que obligan a medidas preventivas de control de uso del espacio. El Parque Viva tiene 9000 m2 de nave industrial, lo cual tiene una atracción estimada de 6593 vehículos basado en referencia de 3 eventos similares en Reino Unido (…) El Parque Viva tiene una capacidad de 20.000 personas y usando una tasa de ocupación de 3 personas por vehículo (…) nos da 6667 vehículos por hora.

Se estima que la calle adyacente tiene capacidad máxima de 800 vehículos por hora para un nivel de servicio E, pues es una vía de 4 m a 6 m de ancho en doble sentido de circulación. SE RECOMIENDA: Una concentración máxima de 2400 personas en evento (sic) masivos de acuerdo a situación actual de accesos y vías aledañas para poder garantizar un flujo adecuado de vehículos de acceso y salida al sitio (…)” (ver prueba).

• 31)El 12 de julio de 2022 se emitió el informe técnico No. CRC-GG-OF-012-2022, suscrito por el Gerente General de la Asociación Cruz Roja Costarricense –en seguimiento a lo señalado en el anterior informe No. CRC-GG-SO-OF-074-2022–, mediante el cual se le informó a la Ministra de Salud lo siguiente:“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos.

En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Nombre140 de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades.

En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Nombre140 para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos.

Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Caba destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)” (ver informe y prueba).

• 32)Por oficio No. MS-DM-5902-2022 de 12 de julio de 2022, la Ministra de Salud dio acuse de recibido a los informes técnicos No. CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 de la Cruz Roja Costarricense, No. 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el No. DM-2022-3121 del Ministerio de Obras Públicas y Transportes y los remitió a la Dirección Regional Rectoría de Salud Central Norte, como complemento a lo dispuesto en el oficio No. MS-DM-5838-2022 de 8 de julio de 2022 (ver prueba).
• 33)Por oficio No. MS-DM-5945-2022 de 13 de julio de 2022, la Ministra de Salud remitió a la Dirección Regional Rectoría de Salud Central Norte el informe técnico No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense (ver prueba).
• 34)En conferencia de prensa de 13 de julio de 2022, el Nombre138 Nombre01, respecto al proyecto vial propuesto por Grupo Nación, señaló lo siguiente: “(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, diay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Dirección01 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)” (ver prueba).
• 35)El 13 de julio de 2022, en la sección de política del medio periodístico La Nación, se consignó la noticia titulada “Alcalde de Alajuela: Parque Viva recibió permiso antes de expansión urbanística en la Guácima”. El contenido de esta noticia es el siguiente: “(…) Nombre50, alcalde de Alajuela, aseguró que el congestionamiento vial que se genera en la Guácima, Alajuela, no es causado únicamente por el Parque Viva, sino que se debe también al gran crecimiento habitacional del distrito y a los nuevos condominios que se levantaron en la zona. “Ha habido un crecimiento muy importante en el distrito de la Guácima que, sumado a las actividades a la gran cantidad de personas que ingresan al distrito, pues sí, es evidente que genera un congestionamiento vial. “Estoy abierto a negociar y poner el tema sobre la mesa; que hay que generar soluciones viables para el distrito, no hay que achacarlos a X o Y, ni generalizarlo”, explicó Nombre147.

“Hay que ver la realidad. El parque tiene casi diez años de construido y, en estos diez años, ha habido un cambio sustancial en el desarrollo urbanístico del distrito de La Guácima, es decir, hay más población y más condominios”, agregó. Desde el 2014, se han aprobado 44 condominios en el distrito, por ejemplo. Asimismo, el jerarca municipal dijo que, aunque el ayuntamiento ha invertido en ese distrito casi 1000 millones y pronto se iniciará la construcción de un puente que conduce a la comunidad de San Antonio de Alajuela, eso no es suficiente y necesitan más recursos para todo el cantón. “El municipio ha hecho unas inversiones, pero tal vez no las suficientes. ¿Por qué? Porque como gobierno local tenemos recursos limitados y 14 distritos, con una red de más de 421 kilómetros a nivel cantonal que atender. Para esa red, en un municipio como el de Alajuela, no hay recursos suficientes y hay que atender los 14 distritos del cantón, no sólo uno.

Hay que hacer mejoras; de eso como alcalde estoy consciente”, informó Nombre147. En setiembre del 2014, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial del Parque Viva y solicitó que se construyeran accesos al sitio desde las distintas rutas que llevan al lugar y se instalara señalización vertical y horizontal, las cuales debían estar listas un año después. En una inspección realizada por el Ministerio en el 2015, se constató que el inmueble había cumplido lo solicitado. Este miércoles, el Nombre138 Nombre51, aseguró en conferencia de prensa en Dirección06, que el permiso nunca debió darse y que solicitará el expediente a la Municipalidad de Alajuela, al tiempo que solicitará la intervención de la defensora de los Habitantes, Nombre52. En aquella época, el hoy alcalde era regidor y dijo al respecto: “El permiso se dio por competencia de la administración municipal que era el órgano competente de la aprobación del mismo; en el expediente hay permiso de Salud y de muchas instituciones (…)” (ver prueba).

• 36)En sesión de concejo de distrito ampliada celebrada el 13 de julio de 2022, el regidor y residente de La Guácima de Alajuela, Nombre19, se refirió al problema relacionado con el crecimiento urbanístico en dicha zona. Apuntó que, de 2010 a fecha, en la Guácima se han aprobado 48 proyectos urbanísticos “(…) sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (…)”, lo cual refleja una realidad vehicular que no es acorde con las carreteras diseñadas hace treinta años. Expresamente, dicho regidor, en tal oportunidad, señaló: “(…) Aquí hay presas todos los días, a las siete de la Nombre142 y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente en Guácima centro hoy, colapsa La Guácima porque no hay para dónde coger. Si hoy pasa un accidente o se cae un poste como pasó hace unos meses (…) tenemos que ir a dar la vuelta por San Miguel, con el riesgo de que el carro que tengamos no tenga las condiciones para poder ir a dar esa vuelta (…) Esa es la realidad del distrito, que tiene serias limitaciones viales.

Cuando yo llegué al Concejo Municipal de Alajuela, prometí que no iba a votar un solo proyecto urbanísticos más en el Concejo Municipal hasta que se aprobaran las rutas alternas (…) Al día de hoy (…) La municipalidad me dice que no tiene presupuesto para rutas alternas, entonces ¿qué quiere decir esto? La realidad continúa en las mismas condiciones que estamos hoy, con Parque Viva o sin Parque Viva, porque no hay presupuesto, no hay dinero para estas rutas alternas (…) Yo sinceramente me siento muy contento de que haya pasado lo de Parque Viva (…) porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días. Porque fue Parque Viva, porque si (…) se hubiera volcado un bus o hubiera pasado lo que sea, a nadie le interesa, el problema sigue. Y por dicha fue Parque Viva, porque Parque Viva tiene la voz para poder decir aquí hay un problema, pero hay problema real, que cuando hay un evento también colapsamos (…)” (ver prueba).

• 37)Mediante oficio No. MS- DRRSCN-1897-2022 de fecha 14 de julio de 2022, la Directora Regional de la Rectoría de Salud Central Norte remitió los informes técnicos señalados por la Ministra recurrida en el oficio No. MS-DM-5902-2022, al Director del Área Rectora de Salud Alajuela 2 (ver prueba).
• 38)El 14 de julio de 2022, representantes Nombre03 S.A. formularon ante el Área Rectora de Salud Alajuela 2, un recurso de revocatoria y de apelación en subsidio en contra de lo dispuesto en la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022 (ver prueba).
• 39)El 14 de julio de 2022, la Contraloría General Nombre01 emitió el denominado Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela (informe No. DFOE-LOC-IF-00014-2022). En el apartado de conclusiones, se consignó lo siguiente: “(…) 3.1. Se determinó a partir de los indicadores y criterios establecidos, que no es posible garantizar que la gestión del servicio de red vial cantonal a cargo de la Municipalidad de Alajuela sea eficaz en el cumplimiento de sus fines y objetivos relacionados con la movilidad, la seguridad vial y la resiliencia de esta red, y que el uso de los recursos asignados se realice en apego al principio de eficiencia. 3.2. En este sentido, si bien se han realizado intervenciones de conservación vial principalmente en la superficie de ruedo y actividades de seguridad vial, aún persisten importantes limitaciones en la cobertura y mejora de la superficie de ruedo, en la atención de otras estructuras esenciales en la infraestructura vial (puentes y aceras) y en el abordaje de la seguridad vial y la resiliencia de la red vial cantonal, sustentado en elementos técnicos que garanticen razonablemente la eficacia de las acciones municipales en estas materias. 3.3.

En cuanto a la eficiencia, se evidenció que la Municipalidad de Alajuela carece de elementos mínimos fundamentales y de sanas prácticas necesarias para implementar una gestión orientada al cumplimiento de este principio; situación que refleja la necesidad de generar una cultura organizacional que considere el uso de datos e indicadores de gestión como un mecanismo indispensable para la mejora de la gestión en aras de satisfacer el interés público. 3.4. Finalmente, para cumplir con los retos que enfrenta nuestro país como el Objetivo del Desarrollo Sostenible n.° 11 (Ciudades y Comunidades Sostenibles) y avanzar en el propósito de no dejar a nadie atrás, se hace necesario ampliar la visión con la que se gestiona la red vial cantonal, de manera que esta gestión tenga una perspectiva integral de las problemáticas y una visión inclusiva y participativa de todas las poblaciones que habitan en el territorio, con especial énfasis en aquellas poblaciones con mayores rezagos y más vulnerables (…)” (ver prueba).

• 40)Para este año 2022 se estaban organizando al menos cuatro eventos en el Parque Viva (conciertos con Nombre53, Nombre54 y Nombre55 en el mes de septiembre y concierto con Nombre56 el 2 de diciembre). Por oficios No. MS-DRRSCN-DARSA2-1713-2022 de 14 de julio de 2022 y MS-DRRSCN-DARSA2-1728-2022 de 15 de julio de 2022, el Director del Área Rectora de Salud Alajuela 2 informó a los representantes legales de las productoras organizadoras de tales eventos, la medida sanitaria de cierre girada al Parque Viva y, por ende, la imposibilidad de otorgar las certificaciones de aforos solicitados (ver prueba).
• 41)Por oficio No. MS-DRRSCN-1904-2022 de 15 de julio de 2022, la Directora Regional de la Rectoría de Salud Central Norte remitió al Director del Área Rectora de Salud Alajuela 2, el informe técnico No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense (ver prueba).
• 42)Por oficio No. MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022, el Director del Área Rectora de Salud Alajuela 2, le indicó al representante legal del Parque Viva que, como seguimiento a lo dispuesto en la supra citada orden sanitaria, se remitían los informes técnicos No. CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 y No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, No. 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el No. DM-2022-3121 del Ministerio de Obras Públicas y Transportes. Adicionalmente, en este oficio se indicó expresamente lo siguiente: “(…) Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022 (sic) (…)” (ver prueba).
• 43)El citado oficio No. MS-DRRSCN-DARSA2-1724-2022 y varios anexos fueron notificados al representante de Parque Viva el 15 de julio de 2022, a las 11:48 hrs., vía correo electrónico (ver prueba).
• 44)Por oficio No. MS-DRRSCN-DARSA2-1755-2022 de 20 de julio de 2022, el Director del Área Rectora de Salud Alajuela 2 corrigió el número de la orden sanitaria señalada en el oficio No. MS-DRRSCN-DARSA2-1724-2022. Este oficio le fue notificado al representante legal del Parque Viva el 20 de julio de 2022 (ver prueba).
• 45)En fecha no precisa, las autoridades del Ministerio de Salud resolvieron los citados recursos de revocatoria y apelación, desestimándolos (ver informe).
• 46)El 29 de julio de 2022, los recurrentes formularon el presente amparo (ver escrito de interposición).
• 47)Por oficio No. PE-243-07-2022 de 29 de julio de 2022, la Presidenta Ejecutiva del INVU le informó al Nombre138 Nombre51, los siguientes hallazgos, luego de haberse realizado una revisión al expediente del llamado “Proyecto Viva” (Parque Viva), que se encontraba en poder de la Municipalidad de Alajuela: “(…) 1. Los usos de suelo otorgados para el campo ferial, anfiteatro, hotel, servicios de comidas, no son conformes según el Plan Regulador aprobado en la Gaceta No. 182 del 19 de setiembre de 2004. 2. La finca plano de catastro A-2995065-2005, se ubica en una zona denominada "Zona Verde" y no en una "Subzona Residencial de Mediana Densidad", tal y como se indicó en la constancia del uso de suelo, emitida por la Municipalidad y base para la emisión de los permisos de Construcción. Lo anterior, de acuerdo con el Mapa de Zonificación vigente en el momento en el cual se solicitaron los usos de suelo, misma que no presenta modificaciones a la fecha, dado que el Plan Regulador no ha sido actualizado desde su publicación en el año 2004. 3.

La viabilidad ambiental otorgada mediante resolución 3083-2013, fue dada para mejoras en el AUTÓDROMO LA GUÁCIMA En ningún momento se desprende del trámite realizado ante la SETENA, que la actividad a desarrollar se enmarcada dentro de la dinámica de un campo ferial, dado precisamente que la gestión de los diferentes permisos fue realizada de manera separada, lo que en alguna medida permitió obviar los requerimientos mínimos que debieron ser solicitados para mitigar las externalidades y efectos derivados de la operación de una actividad de las características conocidas. 4. NO hay registro de presentación de ningún Estudio de Impacto Vial al MOPT o a la Municipalidad que mida el impacto del flujo vehicular asociado a las actividades que se desarrollan en el sitio (construcción de la sala de eventos y anfiteatro según trámite APC 626867). Dicho estudio debió haber sido solicitado de acuerdo con lo indicado en el artículo 12.7 del Plan Regulador del Cantón de Alajuela, que indica textualmente: Artículo 12.7.

Los edificios mayores o iguales a cinco pisos de altura o su equivalente en metros, así como los centros comerciales, industrias, terminales de autobuses u otros que generen concentración masiva deberán presentar adicionalmente para su aprobación final lo siguiente: 1. Estudio de impacto vial. Estudio de acceso, congestión vehicular, soporte de las vías adyacentes a la propiedad, flujos promedios diario y mensual. 2. Infraestructura:estudio de la demanda oferta de la infraestructura existente y la propuesta y la conexión con la existente. Mediante Oficio PE-221-07-2022 se consultó a la Dirección General de Ingeniería de Tránsito (DGIT) y a la Secretaria de Planificación Sectorial (SPS) del Ministerio de Obras Públicas y Transportes (MOPT), respectivamente, dependencias que indican que no se ha recibido ningún estudio para valoración sobre este proyecto. 5. No se solicitó ninguna mejora a la vialidad cantonal que da acceso al complejo tramitado en los diferentes permisos de construcción, ni siguiera mejoras a media vía.

En este sentido, se extraña la aplicación por parte de la Municipalidad de Alajuela del artículo 70 de la Ley de Planificación Urbana. en referencia a la posibilidad que tenia de solicitar contribuciones especiales dado el impacto evidente en la vialidad pública cantonal del proyecto. El fundamento técnico de esta solicitud debió estar basada en un estudio técnico de impacto vial que considerara las características específicas del proyecto. 6. En lo que respecta a los permisos de construcción, el registro del APC indica que se aprobaron 3 permisos: A. Obras de infraestructura del complejo del Campo Ferial (área de construcción 12608 ma.) Identificacion02 oficio MA-ACC-3B33-2014 con fecha 07 de mayo de 2014 B. Construcción de planta de tratamiento (área de construcción 144m2) APC 634113, oficio MA-ACC-3835-2014 con fecha 07 de mayo de 2014. C. Construcción de estructura, envolventes, cerramiento del Complejo Ferial (área de construcción 22.164m2) APC62ô867, oficio MA-ACC-5032-2014 con fecha 12 de Junio de 2014.

Las obras de infraestructura del complejo del Campo Ferial (área de construcción 12608 m2) tramitado mediante el APC 655432. aprobado con el oficio MA-ACC-3833-2014 el 07 de mayo de 2014, fueron aprobadas sin contar con la disponibilidad de agua, como se evidencia en el Oficio CCP-2013-304 del AYA. Si bien es cierto, se cuenta con un pozo, su concesión fue otorgada hasta el 18 de diciembre de 2014. Otro aspecto importante, de acuerdo con la documentación aportada, es que el proyecto tramitado bajo el código Identificacion01 no contaba con la autorización de Nombre140 al momento de ser aprobado. De acuerdo con el informe de cumplimiento correspondiente a la primera revisión, habían observaciones de varias instituciones, sin embargo, no se ubica la segunda revisión con las respectivas correcciones. Esta afirmación se respalda con el informe de Nombre140 oficio CBCR-0018379-2014-lNB-00736 de fecha 16 de junio de 2014 y el reporte de cumplimiento del proyecto descargado el 7 de Julio de 2022 como consta en el expediente digital aportado.

Aún con esta inconsistencia, la Municipalidad de Alajuela, aprobó la solicitud de permiso. Nombre140 exonera al proyecto Identificacion02 de la colocación de hidrantes. Lo anterior mediante oficio CBCR-0018379-2014-lNB-00736 de fecha 16 de junio de 2014, indicando en los interesa: "se acepta la propuesta de presentada (sic) en planos de eliminar la colocación de hidrantes dado que la capacidad de los 5.251,6 no es suficiente para cubrir el cauda/ de los hidrantes". Según se desprende del oficio referido hubo correcciones indicadas por Bomberos, de las cuales no se tiene registro dado que no se incluyeron en el expediente. Adicionalmente, se hace de su conocimiento algunas observaciones generales de forma identificadas en este proceso: El expediente aportado no está foliado ni cuenta con consecutivos de ningún tipo que permitan llevar un orden cronológico, secuencial y una trazabilidad en los trámites realizados.

El expediente se aportó fraccionado, lo que dificultó su revisión, dada la falta de trazabilidad sobre el desarrollo de los distintos permisos y/o etapas del Proyecto. A pesar de que la certificación emitida por la Secretaria de Actas del Concejo Municipal, indica por una parte 70 folios y por otra 178, la realidad es que el total de documentos aportados asciende a un total de 2172. Por otra parte, los planos correspondientes a los 3 trámites realizados mediante la plataforma APC, presentan fecha de descarga: 13/17/2022, lo que hace pensar que dicha documentación no formaba parte del expediente que debe custodiar la Municipalidad, pues de lo contrario. la fecha de descarga, debió coincidir con el momento en que dichos permisos fueron tramitados, es decir, 21 de Diciembre de 2013. Finalmente, al momento de recibir la información digital, se encontraron carpetas vacías e información incompleta, lo cual fue consignado en el oficio de recibido devuelto a la Municipalidad (…)” (ver prueba).

• 48)El 3 de agosto de 2022, en la página oficial de Facebook de la Municipalidad de Alajuela, se publicó lo siguiente: “(…) CON RELACIÓN A LAS PUBLICACIONES DEL CRITERIO EMITIDO POR EL INVU SOBRE PARQUE VIVA, QUE HAN CIRCULADO EN DIVERSOS MEDIOS DE COMUNICACIÓN EL DÍA DE HOY. Sobre la información que ha circulado en diversos medios de comunicación sobre el proyecto PARQUE VIVA basado en un informe emitido por Instituto de Vivienda y Urbanismo, INVU, como primero de los aspectos, debe indicarse que la Municipalidad de Alajuela no ha sido notificada de dicho informe, de manera que nuestro conocimiento se limita a las publicaciones realizadas por esos medios de comunicación, asimismo, se trata de apreciaciones de dicha institución sin consultas a este municipio. Es de importancia aclarar algunos puntos. 1. USO DE SUELO. La zonificación de la finca Dirección07, no fue modificada, pues según el Plan Regulador Urbano vigente que aplica a la especie, la mencionada finca se encuentra en una zona denominada zona verde, Regulada en el Art 56, Plan Regulador Urbano.

Pasa por alto en el análisis el INVU, lo establecido en el artículo 60 del Plan Regulador Urbano, que señala que, si pasados 5 años desde la publicación del Plan Regulador la Municipalidad no adquiere estos terrenos destinados a zonas verdes, estos adquieren la zonificación cercana que menos afecte al usuario, lo que fue aplicado en este caso, tal como y se indicó en los usos de suelo, se trata de zona residencial de media densidad. Por lo tanto, los usos de suelo del proyecto son correctos. 2. SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta, y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC.

El título del proyecto, es decir, el Nombre141 con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no efecto la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía). No porque la empresa cambiara el Nombre141 del proyecto, cambia la naturaleza de las obras. 3. SOBRE “LA FALTA DE UNIFORMIDAD EN LOS USOS DE SUELO” El análisis se realizó de forma coincidente y consistente en todos los casos, bajo el principio de legalidad y de inderogabilidad singular de las leyes. Lo único que varió desde el año 2014 y en los sucesivos usos de suelo fue la forma en que se presentó la información. Al expediente se adjuntó una minuta de los usos de suelo que puede corroborarse para confirmar lo indicado. 4. IMPACTO VIAL, El Plan regulador urbano de Alajuela en su articulo (sic) 12.7 solicita la presentación de un estudio de impacto vial para LA APROBACION (sic) FINAL del proyecto, no para el otorgamiento de usos de suelo, es decir, aplica para el permiso de construcción.

Sobre el tema puede observarse los requisitos que solicita la Municipalidad para este proyecto o cualquiera otro, y con base en la normativa que regula la materia. Para la aprobación del final del permiso (sic) de construcción este gobierno local revisa la Viabilidad ambiental otorgada por SETENA, siendo que dicha entidad en su análisis, siempre verifica el impacto vial de los nuevos proyectos. Según la revisión del expediente de SETENA, esta entidad consideró que con lo presentado en planos fue suficiente, y con ello dieron la respectiva aprobación, por lo que se respeta lo indicado en la Ley 8220 y sus reformas, y su Reglamento, de manera que, en apego al principio de respeto de competencias, se respetó el criterio de SETENA. Además, es importante recordar que el proyecto contó con la debida aprobación del Estudio de Impacto Vial por parte de la Dirección de Ingeniería de Tránsito del MOPT, mediante resolución N° DGIT-ED-5935-2014. 5.

ACTAS SOBRE PROCESO CONSTRUCTIVO, Si se otorgó el permiso final, implica la corrección de cualquiera situación que pudo haberse notificado. 6. SOBRE LAS ANOTACIONES DE OTRAS INSTITUCIONES, La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas. Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero (sic) la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que “el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional”. En definitiva, este gobierno local a través de la Actividad Control Constructivo está en la mejor disposición de aclarar cualquier duda que se genere al respecto de este proyecto, ratificamos que todas nuestras actuaciones han sido consecuentes y ajustadas a la normativa que regula la materia (…)” (ver prueba).

• 49)El proyecto vial propuesto por Parque Viva (construcción de cuatro carriles que comunican dicho recinto con la Dirección01), no ha sido aprobado a la fecha (los autos).

B. OTROS HECHOS DE INTERÉS:

• 1)El Diario La Nación realizó varias publicaciones respecto al entonces candidato a la Presidencia Nombre01 Nombre15, relacionadas, entre otras, con las sanciones que le fueron impuestas en el Banco Mundial por acoso sexual, la crítica a la práctica de gobernar mediante referendos por este propuesta y las estructuras paralelas de financiamiento de la campaña política de su partido. La noticia respecto al tema de acoso sexual se publicó el 30 de agosto de 2021 y, posteriormente, se emitieron algunas otras relacionadas con esta los días 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, 1° y 25 de abril de 2022. Una noticia referente a la improcedencia de gobernar mediante referendos fue publicada el día 13 de febrero de 2022. Las noticias tocantes al financiamiento de la campaña política del hoy Nombre138 fueron publicadas por dicho medio, entre otros, los días 5 de marzo y 29 de marzo de 2022 (consulta realizada al medio digital La Nación www.nación.com).
• 2)El 29 de enero de 2022, el entonces candidato a la Presidencia Nombre15, manifestó ante un grupo de seguidores lo siguiente: “(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Nombre16, óigame el otro (...) Nombre17, óigame Nombre18. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)” (ver prueba).
• 3)El 30 de enero de 2022, en cierre de campaña (correspondiente a la primera ronda electoral), el candidato presidencial Nombre51, manifestó públicamente lo siguiente: “(…) pasamos de la sociedad más igualitaria de América Latina a una de las más desiguales del mundo (…) para ser más millonarios a (…) quienes controlan a esos medios de desinformación de difamación y de mentira (…) lo dijimos, dijimos que había que limpiar la casa y se asustaron porque al principio ¿a quién le importaba Nombre51? a nadie (…) el mismo día que Nombre57 anunció su candidatura empezaron a soltar el veneno, el odio, la mentira y la calumnia, ahí fue donde (…) empezaron a temblar, por eso lo hacen (…) por este tsunami que los va a barrer como la basura de la casa (…) tinta y no sangre, pero que no va a tener menos relevancia histórica (…) porque aquí le estamos diciendo a los mismos de siempre: se les acabó la fiesta se les acabó la fiesta (…)” (consulta realizada al medio digital La Nación www.nación.com).
• 4)El 6 de febrero de 2022, el entonces candidato Nombre58, al momento de emitir su voto, manifestó expresamente al medio AM Prensa lo siguiente: “(…) Yo no dije que la prensa fuera canalla. En Costa Rica hay prensa Nombre148 (…) porque hay prensa que miente (…) que está al servicio de los grupos poderosos, que han estado dedicados a quitar y poner presidentes y eso se les acabó (…)”. Además, ante una consulta planteada al efecto por el periodista, aclaró concretamente que se refería a “(…) La Nación, Canal 7, CRhoy (…)” y sostuvo que esto lo decía “(…) transparente y claramente (…)” (ver prueba).
• 5)El 7 de febrero de 2022, el medio de comunicación Columbia publicó en su plataforma digital la noticia titulada “Nombre51: Hay tres medios importantes que están al servicio de intereses afectados con mi Gobierno”. En esta noticia, se consignaron las siguientes manifestaciones realizadas por Nombre51: “(…) En Costa Rica, óigame claro y duro, hay prensa Nombre148 comprada y vendida, no toda la prensa es así, aquí hay gente honesta en este país, la enorme mayoría, pero hay gente que no es honesta, lo mismo con la prensa (…) en Costa Rica (…) existen dos o tres medios muy importantes que están al servicio de intereses que se van a ver muy afectados en un gobierno de Nombre51 y que nos han hecho lo imposible por un fusilamiento y un linchamiento político (…)” (consulta realizada al medio digital Columbia www.columbia.co.cr).
• 6)El 6 de julio de 2022, en conferencia de prensa, un periodista del medio El Guardián CR, consultó al Nombre138 Nombre01 su criterio respecto al tema de la Caja Costarricense de Seguro Social y la solicitud que se hizo a la Nombre02 respecto a los bonos emitidos por Grupo Nación. Al respecto, el mandatario manifestó que efectivamente existe un tema muy serio con bonos que gobiernos anteriores compraron emitidos por La Nación. También indicó que se encuentra preocupado respecto a la capacidad de pago que tendría ese medio (la cual, en su criterio, “parece muy muy leve”), en virtud de algunas acciones contables y de desviación de activos que debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos. Luego de emitir criterio al respecto Nombre59, Nombre138 Ejecutivo de la CCSS, el Nombre138 Nombre01 señaló expresamente lo siguiente: “(…) La rentabilidad de la Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes.

Y entonces uno se pregunta si esa tendencia de pérdidas continúa, yo no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja (…) ¿qué pasa si a la Nación se le ahorca el flujo de caja y no está la propiedad porque está en otra parte? Esa es la pregunta y yo creo que don Nombre149 lo expresó en términos técnicos muy bien pero diay, él tiene la obligación de hacer eso. Y yo le pedí, además, de que ya lo estaba haciendo cuando yo lo llamé para preguntarle, me dice no, ya lo estamos haciendo y está la consulta (…)” (ver prueba).

• 7)El 7 de julio de 2022, en la sección de política del Diario La Nación, se publicó la siguiente nota: “Nombre139 ataca a La Nación con datos distorsionados”, en la cual, a su vez, se consignó lo siguiente: “(…) Nombre04 confirma que ordenó al jerarca de la CCSS solicitar información a la Nombre02 sobre bonos de la empresa (…) El Nombre138 Nombre51 atacó el miércoles al diario La Nación utilizando datos distorsionados sobre los bonos emitidos por La Nación S. Nombre05. en el mercado bursátil entre el 2013 y el 2014. La Caja Costarricense de Seguro Social (CCSS) y su operadora de pensiones adquirieron parte de la colocación. Esas entidades invirtieron por decisión propia con el fin de ganar intereses. Los rendimientos siempre los han recibido puntualmente, admitió el mismo Nombre59, Nombre138 ejecutivo de la CCSS. La tasa actualmente es de un 8%. La CCSS invirtió ¢2.950 millones del régimen de pensiones de Invalidez, Vejez y Muerte (IVM), mientras que la operadora de pensiones complementarias adquirió otros ¢750 millones.

En el momento de la colocación, La Nación S. A. desconocía quiénes adquirieron los valores, pues la operación se realiza mediante un puesto de bolsa, porque así lo establecen las reglas bursátiles. Sin embargo, Nombre139 usó la conferencia de prensa del miércoles, posterior a la sesión del Consejo de Gobierno, para poner en duda, públicamente, si la empresa podría devolver el capital de los bonos que no han expirado, lo cual está previsto, desde un principio, para los años 2024 y 2025. Horas antes de la conferencia de prensa, fuentes confiables informaron a La Nación de que el mandatario llevaba en agenda el ataque a este medio. Lo abordaría ante una consulta que formularía uno de los periodistas. Finalmente, la pregunta la realizó Nombre60, del sitio El Guardián. Entonces, Nombre139 asintió: “Sí, tenemos un tema muy serio con los bonos que gobiernos anteriores compraron, emitidos por La Nación, y que financiaron con dos fuentes: la pensión de su mamá, de su abuelita, de su tío, del IVM; y las pensiones de los empleados de la Caja, en el Fondo de Retiro de Empleados (FRE)”, comenzó el mandatario.

Al respecto, Nombre37, director ejecutivo de Grupo Nación, dijo no entender la preocupación, pues los intereses se han pagado puntualmente: ya se pagaron dos emisiones de bonos en su totalidad, se tienen los recursos para saldar una tercera y se trabaja en los de la última, que vence en tres años. Además, declaró que el patrimonio de la empresa supera por mucho el valor de los bonos. Nombre150 explicó que, en este momento, la relación de deuda patrimonio de la empresa es de 1 (deuda) a 2 (patrimonio) y que, para el 2024, será de 1 a 4 luego de cancelarse el vencimiento de bonos de ese año. Nombre139 dio la orden a Nombre59. Nombre139 confirmó que él mismo fue quien pidió al Nombre138 de la CCSS plantear preguntas a la Nombre02 para revisar las condiciones financieras de la compañía de medios de comunicación. “Yo le pedí la obligación de hacer eso (...) y bueno, él me dijo que ya lo estaba haciendo”, expresó el mandatario.

Durante lapsos de su discurso, el Nombre138 miraba fijamente al periodista de este medio que se encarga de la cobertura de Casa Presidencial. Los bonos de ‘La Nación’. Entre el 2013 y el 2014, La Nación S.A. hizo cuatro emisiones de bonos, mediante operaciones reguladas por la Superintendencia General de Valores (Sugeval), por un total de ¢39.000 millones, principalmente, para financiar el proyecto Parque Viva, en La Guácima de Alajuela. Diversos inversionistas decidieron aceptar la oferta. Dos emisiones, la del 2013 y una del 2014, ya fueron canceladas del todo por un total de ¢18.000 millones. En cuanto a las otras dos emisiones, la compañía ya dispone de los ¢10.000 millones para pagar la que vence en el 2024. La verificación puede hacerla con facilidad la CCSS o cualquiera capaz de leer unos estados financieros porque la información es pública dada la participación de la empresa en la Bolsa Nacional de Valores.

Para encontrarla, basta entrar al sitio de La Nación, luego a “información de accionistas”, después a “información financiera” y, por último, escoger el estado de situación financiera. Para pagar la última emisión, que vence en el 2025, faltan ¢9.015 millones. Según Nombre150, la compañía ya tiene, entonces, recursos líquidos para cubrir un 72% de la obligación pendiente, a falta de tres años. No obstante, Nombre51 prosiguió con su respuesta: “Tenemos mucha preocupación de la capacidad de pago que tendría ese medio, que parece muy, muy leve, y, segundo, de algunas acciones contables y desviación de activos o contribución de activos a otros, que debilitan la probabilidad de que el pueblo de Costa Rica, desde nuestro punto de vista, pueda recuperar los recursos que son sustanciosos”. Las infundadas insinuaciones de Nombre139, que durante la campaña electoral prometió hacer daño a la empresa por sus informaciones, se refieren a la decisión del grupo empresarial de impulsar un proyecto inmobiliario en una propiedad ubicada en Llorente de Tibás, tal como lo había hecho público la empresa en el 2020 mediante un hecho relevante comunicado a la Sugeval.

Nombre150 relató que el negocio se prepara mediante un codesarrollo utilizando el modelo de fideicomiso junto a la empresa Portafolio Inmobiliario, que ha ejecutado enormes y exitosos proyectos como Dirección08 o Escazú Village. En ese modelo de negocio, La Nación S. A. aporta la tierra y la desarrolladora su experiencia en desarrollo inmobiliario. “Venimos valorando el proyecto desde hace muchísimos años y ya, en el 2020, logramos firmar el fideicomiso, que es como marcar la cancha o poner las reglas del juego. En realidad, nosotros no hemos traspasado nuestras propiedades al fideicomiso. El acuerdo que tenemos con Portafolio Inmobiliario es que eso se va a hacer hasta que tengamos todos los permisos y estemos listos para desarrollar”, afirmó Nombre150. “Ahora, si la preocupación está por ahí, tenemos muchísimas propiedades. Estamos hablando de cinco hectáreas en Tibás, pero tenemos 35 hectáreas en La Guácima y, en esas 35 hectáreas, tenemos edificios por $30 millones.

Estamos hablando de que la deuda restante, ese 28%, podría andar ahorita entre $8 millones y $9 millones, depende del tipo de cambio; entonces, en garantías, tenemos más que suficientes”, acotó el director ejecutivo. Pagos están al día. En la conferencia de prensa, luego de dar su primera respuesta sobre este tema, el Nombre138 Nombre139 cedió el podio a Nombre59, Nombre138 ejecutivo de la CCSS, para que ampliara sobre el tema. El funcionario afirmó que plantearon una consulta a la Nombre02 para conocer la realidad financiera de Grupo Nación para afrontar los pagos de las inversiones, programados para 2024 y 2025. A diferencia del mandatario, Nombre151 afirmó: “De ninguna manera estamos indicando que, a priori, no van a poder repagar; simplemente queremos saber cómo lo van a hacer”. Además, insistió en que los pagos de los intereses están al día. Años atrás, en el 2008, La Nación S. A. colocó otras dos emisiones por ¢5.700 millones que fueron canceladas en su totalidad en el 2015 y el 2017.

Solo por intereses, la empresa pagó a los inversionistas ¢13.130 millones por las colocaciones ya canceladas, y ha pagado ¢14.050 millones por las que vencen en 2024 y 2025. Nombre139 a Nombre138 de la Caja: Usted es muy diplomático Apenas Nombre151 finalizó su intervención, Nombre139 retomó el podio e indicó: “Vamos a ver, don Nombre149 es muy diplomático”. Enseguida, continuó haciendo su exposición sobre cómo, según él, los repagos de las inversiones están en peligro. Cada vez que el mandatario daba un dato, consultaba al jerarca de la CCSS si este era de acceso público. Durante su intervención, Nombre151 indicó que “nosotros en la Caja no estamos trabajando con información privada, estamos trabajando con información pública y, a partir de la información pública, no podemos determinar el efecto de este fideicomiso”. Nombre139 prosiguió: “¿La rentabilidad de La Nación es pública, verdad?

Sí, la rentabilidad de La Nación es pública, va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. “Y entonces uno se pregunta, yo no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja. ¿Qué pasa? Es el deber de cuidar la pensión de su abuelita, qué pasa si a La Nación se le ahorca el flujo de caja, y no está la propiedad, porque está en otra parte… esa es la pregunta”. Las propiedades que eventualmente pasarán al fideicomiso para desarrollar el proyecto no se desvanecerán en el aire. La participación de la empresa el fideicomiso estará incorporada a su patrimonio y contribuirá a responder por sus obligaciones. Por otra parte, 1.5 valiosas hectáreas no pasarán al fideicomiso porque en ellas seguirán operando la redacción y el área de producción industrial. Todo eso sin mencionar las 35 hectáreas en La Guácima con sus edificios valorados en $30 millones que, por sí solos, representan varias veces el vencimiento total del 2025 y no solo de la fracción de ese vencimiento que corresponde a los bonos comprados por la Caja.

En cuanto a los resultados, Nombre150 manifestó: “Se habla de que La Nación solo arrastra pérdidas. Es muy importante hacer la distinción entre pérdida contable y generación de flujo de caja. Nosotros estamos arrastrando pérdidas contables, cierto, pero estamos generando flujo de caja. Esto quiere decir que, entre la operación y las inversiones financieras, estamos generando flujo de caja suficiente para pagar la deuda, para pagar todos los intereses, para pagar todas las inversiones y, además, estamos ahorrando para hacerle frente a vencimientos del futuro. Eso se puede ver en nuestros estados financieros que son públicos” El director ejecutivo de Grupo Nación recordó que Parque Viva volvió a tener actividad, a partir de marzo de 2022, después de estar dos años sin eventos producto de la pandemia de coronavirus. Asimismo, recordó que la crisis sanitaria provocó una afectación generalizada en el mundo.

Pese a ello, enfatizó, la compañía logró generar flujo de caja. “Los números de este año van a ser mucho mejores que los del año pasado y esa va a ser la tendencia de aquí al 2025″, afirmó. Nombre150 concluyó invitando a la CCSS a revisar directamente todos los datos y hacer cuantas preguntas estime convenientes a los personeros de la empresa. La Nación recibe regularmente a otros inversionistas y estaría encantada de conversar con los funcionarios de la Caja (…)” (consulta realizada al medio digital La Nación www.nación.com).

• 8)El 20 de julio de 2022, en conferencia de prensa, el mandatario señaló, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva. Expresamente, en dicha ocasión, indicó lo siguiente: “(…) Entendemos que el gran área metropolitana necesita una solución al transporte. Cuando uno ve que a este trencito le tenían un ramal de 150.000 millones de colones al Parque Viva, uno todavía se preocupa más. Entonces todo junto nos dice “esto no va” (…)” (ver prueba).
• 9)El 3 de agosto de 2022, en conferencia de prensa, el Nombre138 Nombre01 comparó a los medios de la prensa con ratas y “otras especies de la fauna”. Expresamente, en tal ocasión, dicha autoridad, dirigiéndose a la Ministra de Salud, señaló lo siguiente: “(…) La veo afectada con los medios y la entiendo, pero le voy a ser muy franco, yo a esos medios y a los de su especie, porque son una especie (…) la gente habla de la prensa, eso es como hablar de la fauna, hay rinocerontes, hay mapaches, hay ratas, hay aves (…) A la especie de prensa que usted está hablando yo no les creo (…) no se moleste con ellos, déjelos que sigan hundiéndose (…)” (consulta realizada al medio de prensa digital CRhoy www.crhoy.com).

III. HECHOS NO PROBADOS

De relevancia para dirimir el presente recurso de amparo, se tienen por indemostrados los siguientes:

• 1)Que de previo a entrar en funcionamiento Parque Viva se les haya exigido a sus representantes presentar e implementar un plan que solventara los problemas de índole vial hoy imputados (v.gr. construir –fuera del recinto–, accesos de ingreso o alguno otro de mayor importancia) (los autos).
• 2)Que se les haya notificado a los representantes de Parque Viva lo dispuesto en los oficios No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de la Dirección de la Fuerza Pública de Alajuela y No. PE- 243-07-2022 de la Presidencia Ejecutiva del INVU (los autos).

IV. SOBRE LA LIBERTAD DE EXPRESIÓN

La libertad de expresión es uno de los pilares sobre los cuales está fundado el Estado de Derecho y comprende, tanto la garantía fundamental y universal de manifestar los pensamientos o las opiniones propias, como conocer los de otros. En otros términos, refiere a la libertad de buscar, recibir y difundir informaciones e ideas, ya sea oralmente o por escrito. Por esto se dice que la libertad de expresión se caracteriza por ser un derecho con una doble dimensión: una dimensión individual, consistente en el derecho de cada persona a buscar información y expresar los propios pensamientos, ideas e informaciones; y una dimensión colectiva o social, consistente en el derecho de la sociedad a procurar y recibir cualquier información, a conocer los pensamientos, ideas e informaciones ajenos y a estar bien informada. Sobre esta doble dimensión de la libertad bajo estudio, la Corte Interamericana de Derechos Humanos (en adelante Corte IDH), en el caso Nombre61 vs. el Estado de Costa Rica (sentencia de 2 de julio de 2004), sostuvo lo siguiente:

“(…) 109. Al respecto, la Corte ha indicado que la primera dimensión de la libertad de expresión “no se agota en el reconocimiento teórico del derecho a hablar o escribir, sino que comprende además, inseparablemente, el derecho a utilizar cualquier medio apropiado para difundir el pensamiento y hacerlo llegar al mayor número de destinatarios”. En este sentido, la expresión y la difusión de pensamientos e ideas son indivisibles, de modo que una restricción de las posibilidades de divulgación representa directamente, y en la misma medida, un límite al derecho de expresarse libremente.

110. Con respecto a la segunda dimensión del derecho a la libertad de expresión esto es, la social, es menester señalar que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros como el derecho a difundir la propia.

111. Este Tribunal ha afirmado que ambas dimensiones poseen igual importancia y deben ser garantizadas plenamente en forma simultánea para dar efectividad total al derecho a la libertad de expresión en los términos previstos por el artículo 13 de la Convención (…)”.

Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), se refirió a este derecho conforme los siguientes términos:

“(…) se trata de uno de los derechos individuales que de manera más clara refleja la virtud que acompaña –y caracteriza– a los seres humanos: la virtud única y preciosa de pensar al mundo desde nuestra propia perspectiva y de comunicarnos con los otros para construir a través de un proceso deliberativo, no solo el modelo de vida que cada uno tiene derecho a adoptar, sino el modelo de sociedad en el cual queremos vivir. Todo el potencial creativo en el arte, en la ciencia, en la tecnología, en la política, en fin, toda nuestra capacidad creadora individual y colectiva, depende, fundamentalmente, de que se respete y promueva el derecho a la libertad de expresión en todas sus dimensiones. Se trata entonces de un derecho individual sin el cual se estaría negando la primera y más importante de nuestras libertades: el derecho a pensar por cuenta propia y a compartir con otros nuestro pensamiento (…)”.

Nuestra Constitución Política garantiza la libertad de expresión y pensamiento en los artículos 28 y 29, los cuales señalan lo siguiente:

“ARTÍCULO 28.- Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley.

Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley.

No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas”.

“ARTÍCULO 29.- Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca”.

En el ámbito internacional, la libertad de expresión ha sido consagrada en diversos instrumentos. En lo que respecta al sistema interamericano, el Pacto Internacional de Derechos Civiles y Políticos dispone en su artículo 19 lo siguiente:

“1. Nadie podrá ser molestado a causa de sus opiniones.

2. Toda persona tiene derecho a la libertad de expresión; este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.

3. El ejercicio del derecho previsto en el párrafo 2 de este artículo entraña deberes y responsabilidades especiales. Por consiguiente, puede estar sujeto a ciertas restricciones que deberán, sin embargo, estar expresamente fijadas por la ley y ser necesarias para:

• a)Asegurar el respeto a los derechos o a la reputación de los demás; b) La protección de la seguridad nacional, el orden público o la salud o la moral públicas”.

La Declaración Universal de Derechos Humanos en su ordinal 19 señala también:

“Todo individuo tiene derecho a la libertad de opinión y de expresión; este derecho incluye el de no ser molestado a causa de sus opiniones, el de investigar y recibir informaciones y opiniones, y el de difundirlas, sin limitación de fronteras, por cualquier medio de expresión”.

Por su parte, la Convención Americana sobre Derechos Humanos, en su artículo 13, consigna lo siguiente:

“1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.

2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:

• a)el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas.

3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.

4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.

5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional”.

En el artículo IV de la Declaración Americana de los Derechos y Deberes del Hombre, se señala lo siguiente:

“Toda persona tiene derecho a la libertad de investigación, de opinión y de expresión y de difusión del pensamiento por cualquier medio”.

Asimismo, instrumentos internacionales de soft law han resguardado esta libertad. Así, la Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, Nombre62. el 11 de marzo de 1994), en su primer principio refiere que:

“1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.

Por su parte, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone lo siguiente:

“1. La libertad de expresión, en todas sus formas y manifestaciones, es un derecho fundamental e inalienable, inherente a todas las personas. Es, además, un requisito indispensable para la existencia misma de una sociedad democrática”.

En otro contexto, dentro del ordenamiento jurídico europeo, se destaca la Convención Europea sobre Derechos Humanos, que en su ordinal 10 precisa la titularidad universal de este derecho, conforme los siguientes términos:

“Libertad de expresión 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades públicas y sin consideración de fronteras. El presente artículo no impide que los Estados sometan a las empresas de radiodifusión, de cinematografía o de televisión a un régimen de autorización previa.

2. El ejercicio de estas libertades, que entrañan deberes y responsabilidades, podrá ser sometido a ciertas formalidades, condiciones, restricciones o sanciones, previstas por la ley, que constituyan medidas necesarias, en una sociedad democrática, para la seguridad nacional, la integridad territorial o la seguridad pública, la defensa del orden y la prevención del delito, la protección de la salud o de la moral, la protección de la reputación o de los derechos ajenos, para impedir la divulgación de informaciones confidenciales o para garantizar la autoridad y la imparcialidad del poder judicial”.

Igualmente, la Carta de los Derechos Fundamentales de la Unión Europea, en su ordinal 11, cita lo siguiente:

“Artículo 11 Libertad de expresión y de información 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades pœblicas y sin consideración de fronteras.

2. Se respetan la libertad de los medios de comunicación y su pluralismo”.

El derecho a la libertad de expresión ha sido ampliamente desarrollado en la jurisprudencia constitucional costarricense. Así, en la Sentencia No. 8196-2000 de las 15:08 hrs. de 13 de septiembre de 2000, el Tribunal Constitucional hizo referencia a las distintas formas en que se puede manifestar la libertad de expresión, conforme los siguientes términos:

“(…) IV.- De la Libertad de Expresión. La doctrina caracteriza a la libertad de expresión como una libertad presupuesto del ejercicio de otras libertades, que opera como legitimadora del funcionamiento del sistema democrático y de la eficacia de sus instituciones y que jurídicamente adopta pluralidad de formas. La vinculación más clara se da con la libertad de pensamiento, que es la condición previa e indispensable para la existencia de la libertad de expresión. En ejercicio de ambas libertades, el individuo puede escoger o elaborar las respuestas que pretende dar a todas aquellas cuestiones que le plantea la conducción de su vida en sociedad, de conformar a estas respuestas sus actos y, comunicar a los demás aquello que considera verdadero, sin censura previa. El ámbito de acción de esas libertades es muy amplio, pues comprende las manifestaciones de los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc. La libertad de expresión, entonces, implica la posibilidad de que el sujeto transmita sus pensamientos (ideas, voliciones, sentimientos), y comprende la libertad de creación artística o literaria, la libertad de palabra, la libre expresión cinematográfica y también las manifestaciones vertidas por medio de la prensa escrita, la radio y la televisión, en tanto son medios de difusión de ideas.

Así también, de la libertad de expresión se infiere el derecho de dar y recibir información y el derecho a comunicar con propósito diverso ya sea económico, político, recreativo, profesional, etc., sin que se impongan medidas restrictivas que resulten irrazonables. La libertad de expresión no sólo protege al individuo aislado, sino las relaciones entre los miembros de la sociedad y es por ello que tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública. Es a su vez presupuesto de la libertad de prensa y de la libertad de información, pues de la libertad de expresión derivaron en sucesión histórica la libertad de prensa (o de escritos periódicos dirigidos al público en general) y la libertad de información, que es como hoy día se denomina a la libertad de expresión concretada en los medios de comunicación social. La libertad de información entonces, comprende la prensa escrita, oral, audiovisual y por su naturaleza, se encuentra relacionada con el derecho de crónica, de crítica, a la industria o comercio de la prensa y al fenómeno de la publicidad.

Este aspecto ha adquirido mucha importancia en las últimas décadas, pues debido al alto costo de instalación y mantenimiento de los medios de comunicación colectiva, cuando son propiedad privada sólo pueden subsistir por el uso intensivo de la publicidad. Asimismo, existe el fenómeno del derecho social a la información, que reside precisamente en la comunidad y en cada uno de sus miembros, y que les da la posibilidad de ajustar su conducta a las razones y sentimientos por esa información sugeridos, para la toma de decisiones y a la vez cumple una función de integración, ya que unifica una multitud de opiniones particulares en una gran corriente de opinión, estimulando así la integración social (…)”. (El destacado no forma parte del original).

Asimismo, en ese mismo voto, la Sala Constitucional se pronunció sobre la prohibición de la censura previa, así como a los límites a los que está sometida la libertad bajo estudio:

“(…) V.- Una de las principales garantías que protegen la libertad de expresión es la prohibición de censura previa, ocurriendo así, que cualquier control debe darse a posteriori. Como censura previa entiende esta Sala aquel control, examen o permiso a que se somete una publicación, texto u opinión, con anterioridad a su comunicación al público, mediante el cual se pretende realizar un control preventivo de las manifestaciones hechas por un medio de comunicación colectiva, ya bien sea radiofónico, televisivo o impreso. Este concepto no sólo está plasmado en nuestra Constitución Política en el artículo 29, sino que también se incorporó en el Pacto de San José, cuyo artículo 13 inciso 2, dispone que el ejercicio de la libertad de expresión no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por ley y ser necesarias para asegurar ya sea el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral pública. El artículo 29 de la Constitución Política consagra lo que parte de la doctrina califica como libertad de prensa, mientras que otra señala como libertad de información, y dispone:

"Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca." La Sala se refirió a este tema en la sentencia No. 1292-90 de las horas del de mil novecientos noventa y dijo:

"La libertad de expresión contenida en el artículo 29 de nuestra Constitución, permite la comunicación de pensamientos de palabra o por escrito y su publicación sin previa censura, garantía que refuerza el artículo 28 del mismo cuerpo normativo al prohibir la persecución por el ejercicio de esa libertad. No obstante, como todo derecho, esa libertad no es absoluta, y tiene su límite, de tal forma que el abuso que se haga de ella hará incurrir en responsabilidad a su autor, según la legislación que rige la materia." (…)

Ahora bien, a pesar de la gran libertad de que goza el individuo para formar opiniones basado en criterios personales y a su vez comunicarlas con toda amplitud, no debe pensarse que el ejercicio de estas libertades no tiene límite alguno, pues la libertad de expresión, al igual que el resto de las libertades públicas no es irrestricta: sus límites vienen dados por el mismo Orden Constitucional, y así lo consideró esta Sala en la sentencia N° 3173-93, al indicar que “II.- Los derechos fundamentales de cada persona, deben coexistir con todos y cada uno de los derechos fundamentales de los demás; por lo que en aras de la convivencia se hace necesario muchas veces un recorte en el ejercicio de esos derechos y libertades, aunque sea únicamente en la medida precisa y necesaria para que las otras personas los disfruten en iguales condiciones. Sin embargo, el principio de la coexistencia de las libertades públicas -el derecho de terceros- no es la única fuente justa para imponer limitaciones a éstas; los conceptos "moral", concebida como el conjunto de principios y de creencias fundamentales vigentes en la sociedad, cuya violación ofende gravemente a la generalidad de sus miembros-, y "orden público", también actúan como factores justificantes de las limitaciones de los derechos fundamentales.

VI- No escapa a esta Sala la dificultad de precisar de modo unívoco el concepto de orden público, ni que este concepto puede ser utilizado, tanto para afirmar los derechos de la persona frente al poder público, como para justificar limitaciones en Nombre141 de los intereses colectivos a los derechos. No se trata únicamente del mantenimiento del orden material en las calles, sino también del mantenimiento de cierto orden jurídico y moral, de manera que está constituido por un mínimo de condiciones para una vida social, conveniente y adecuada. Constituyen su fundamento la seguridad de las personas, de los bienes, la salubridad y la tranquilidad.” Asimismo, en la sentencia N° 3550-92 de las dieciséis horas de veinticuatro de noviembre de mil novecientos noventa y dos, este Tribunal desarrolló el tema de los límites legítimos a las libertades públicas y se refirió al principio de reserva de ley enfatizando que " solamente mediante ley formal, emanada del Poder Legislativo por el procedimiento previsto en la Constitución para la emisión de las leyes, es posible regular y, en su caso restringir los derechos y libertades fundamentales -todo, por supuesto, en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables (…)”. El destacado no forma parte del original).

Asimismo, más recientemente, en el Voto No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal dispuso lo siguiente:

“(…) V.- SOBRE LA LIBERTAD DE EXPRESIÓN Y LOS LÍMITES IMPONIBLES.- Este Tribunal ha entendido la libertad de expresión e información tal y como se dispuso en la sentencia No. 8109-98 de las 14:21 horas del 13 de noviembre de 1998, en la que se indicó lo siguiente: “...IV.- El Derecho de Información es aquel que permite a todas las personas recibir información suficientemente amplia sobre determinados hechos y sobre las corrientes de pensamiento y a partir de ellos escoger y formarse sus propias opiniones. Ello se logra a partir de dos vías diferentes: mediante la exposición objetiva de los hechos y por el pluralismo de las corrientes ideológicas. Asimismo, la Libertad de Expresión y de Pensamiento constituye un derecho fundamental que le permite al individuo dentro de un amplio ámbito de libertad, formular criterios personales de lo que éste considere adecuado o no, para responder a determinadas situaciones; permitiendo a la vez, poder comunicar sin censura previa, el resultado de su planteamiento ideológico.

Este derecho tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública, mediante los aportes intelectuales del individuo que ejerce opiniones o conceptos ya establecidos, o bien criticándolos. El ámbito de libertad es muy amplio, pues en él se comprenden todas las manifestaciones que realizan los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc, por lo que de lo anterior se desprende que el ejercicio de la Libertad de Expresión y la Libertad de Pensamiento excluye la censura previa, ocurriendo que el control existente se da a posteriori y sobre los excesos sujetos al abuso de tales libertades, excluyéndose de tal prohibición los considerados espectáculos públicos.” Aunado a ello, en la misma sentencia se señaló que: “... La libertad de expresión forma parte de la libertad de información y en un Estado de Derecho, implica una ausencia de control por parte de los poderes públicos, y de órganos administrativos al momento de ejercitar ese derecho, lo que quiere decir que no es necesaria autorización alguna para hacer publicaciones, y que no se puede ejercer la censura previa, salvo que este de por medio la salud, la seguridad nacional, la moral y las buenas costumbres, como es el caso de los espectáculos públicos.

El ejercicio de la libertad de expresión no puede ser ilimitado, ya que de ser así, los medios de comunicación ó cualquier sujeto de derecho, se podría prestar para propagar falsedades, difamar o promover cualquier tipo de desordenes y escándalos. Es por ello que la libertad de información trae implícito un límite, que funciona como una especie de autocontrol para el ciudadano que ejercita ese derecho, en el sentido de que si comete un abuso será responsable de él, en los casos y del modo en que la ley lo establezca. De allí que existan, en nuestro ordenamiento, figuras penales como la injuria, la calumnia o la difamación, que pueden ser la consecuencia de un abuso en el ejercicio del derecho de información. (…)

La Corte Interamericana de Derechos Humanos en el caso de Nombre63 contra el Estado de Costa Rica, en su sentencia del 2 de julio de 2004, sobre la libertad de expresión, indicó que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros, como el derecho a difundir la propia. (…)

Ahora bien, la libertad de pensamiento y de expresión en una sociedad democrática, es un tema que como ya se ha mencionado supra, ha sido desarrollado en la Convención Americana, específicamente, en su artículo 13.2, que prevé la posibilidad de establecer restricciones a la libertad de expresión.

La jurisprudencia de la Corte Interamericana de Derechos Humanos ha señalado que, a través de la aplicación de responsabilidades ulteriores por el ejercicio abusivo del derecho de libertad de pensamiento y de expresión, no se debe de modo alguno limitar, más allá de lo estrictamente necesario, el alcance pleno de dichos derechos.

Se ha mencionado que la legalidad de las restricciones a la libertad de expresión fundadas sobre el artículo 13.2 de la Convención Americana, dependerá de que estén orientadas a satisfacer un interés público imperativo, por lo que se debe escoger aquella que restrinja en menor escala el derecho protegido.

Además, para que deban justificarse, es necesaria su ponderación sobre la necesidad social del pleno goce del derecho y no limitar el derecho tutelado más allá, de lo estrictamente necesario. Es decir, que la restricción debe ser proporcionada al interés que la justifica y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión e información (ver en este sentido la Opinión Consultiva OC-5/85). (…)”. (El destacado no forma parte del original).

Por su parte, la Corte IDH en el caso Nombre64 y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), indicó lo siguiente:

“(…) b.3 Restricciones permitidas a la libertad de expresión y la aplicación de responsabilidades ulteriores en casos que haya afectación de la honra y de la dignidad en asuntos de interés público 71. El Tribunal recuerda que, con carácter general, el derecho a la libertad de expresión no puede estar sujeto a censura previa sino, en todo caso, a responsabilidades ulteriores en casos muy excepcionales y bajo el cumplimiento de una serie de estrictos requisitos. Así, el artículo 13.2 de la Convención Americana establece que las responsabilidades ulteriores por el ejercicio de la libertad de expresión, deben cumplir con los siguientes requisitos de forma concurrente: (i) estar previamente fijadas por ley, en sentido formal y material; (ii) responder a un objetivo permitido por la Convención Americana y (iii) ser necesarias en una sociedad democrática (para lo cual deben cumplir con los requisitos de idoneidad, necesidad y proporcionalidad).

72. Respecto a la estricta legalidad, la Corte ha establecido que las restricciones deben estar previamente fijadas en la ley como medio para asegurar que las mismas no queden al arbitrio del poder público. Para esto, la tipificación de la conducta debe ser clara y precisa, más aún si se trata de condenas del orden penal y no del orden civil. Sobre los fines permitidos o legítimos, los mismos están indicados en el referido artículo 13.2 y son (a) el respeto a los derechos o a la reputación de los demás, o (b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas. Asimismo, las restricciones a la libertad de expresión deben ser idóneas, esto es, efectivamente conducentes para alcanzar la finalidad legítimamente permitida. En lo que respecta al análisis de necesidad, el Tribunal ha sostenido que, para que una restricción a la libre expresión sea compatible con la Convención Americana, aquella debe ser necesaria en una sociedad democrática, entendiendo por “necesaria” la existencia de una necesidad social imperiosa que justifique la restricción.

En este sentido, la Corte deberá examinar las alternativas existentes para alcanzar el fin legítimo perseguido y precisar la mayor o menor lesividad de aquéllas. Finalmente, en relación con la proporcionalidad de la medida, la Corte ha entendido que las restricciones impuestas sobre el derecho a la libertad de expresión deben ser proporcionales al interés que las justifican y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo goce del derecho. En ese sentido, no es suficiente que tenga una finalidad legítima, sino que la medida en cuestión debe respetar la proporcionalidad al momento de afectar la libertad de expresión. En otras palabras, “en este último paso del análisis se considera si la restricción resulta estrictamente proporcional, de tal forma que el sacrificio inherente a aquella no resulte exagerado o desmedido frente a las ventajas que se obtienen mediante tal limitación”.

El Tribunal recuerda que estas restricciones tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa.

73. En este sentido, la Corte ha establecido que se pueden imponer tales responsabilidades ulteriores en tanto se pudiera haber afectado el derecho a la honra y la reputación. Así, el artículo 11 de la Convención establece, en efecto, que toda persona tiene derecho a la protección de su honra y al reconocimiento de su dignidad. La Corte ha señalado que el derecho a la honra “reconoce que toda persona tiene derecho al respeto de esta, prohíbe todo ataque ilegal contra la honra o reputación e impone a los Estados el deber de brindar la protección de la ley contra tales ataques”. En términos generales, este Tribunal ha indicado que “el derecho a la honra se relaciona con la estima y valía propia, mientras que la reputación se refiere a la opinión que otros tienen de una persona”. En este sentido, este Tribunal ha sostenido que, “tanto la libertad de expresión como el derecho a la honra, derechos ambos protegidos por la Convención, revisten suma importancia, por lo cual es necesario garantizar ambos derechos, de forma que coexistan de manera armoniosa”.

El ejercicio de cada derecho fundamental tiene que hacerse con respeto y salvaguarda de los demás derechos fundamentales. Por ende, la Corte ha señalado que “la solución del conflicto que se presenta entre ambos derechos requiere de una ponderación entre los mismos, para lo cual deberá examinarse cada caso, conforme a sus características y circunstancias, a fin de apreciar la existencia e intensidad de los elementos en que se sustenta dicho juicio”.

74. El Tribunal recuerda a este respecto que, para determinar la convencionalidad de una restricción a la libertad de expresión cuando este colisione con el derecho a la honra, es de vital importancia analizar si las declaraciones efectuadas poseen interés público, toda vez que en estos casos el juzgador debe evaluar con especial cautela la necesidad de limitar la libertad de expresión. En su jurisprudencia, la Corte ha considerado de interés público aquellas opiniones o informaciones sobre asuntos en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, o afecta derechos o intereses generales o le acarrea consecuencias importantes. Determinar lo anterior tiene consecuencias en el análisis de la convencionalidad de la restricción al derecho a la libertad de expresión, toda vez que las expresiones que versan sobre cuestiones de interés público -como, por ejemplo, las concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores- gozan de mayor protección, de manera tal que se propicie el debate democrático.

75. Así, la Corte ha señalado que, en una sociedad democrática, aquellas personas que influyen en cuestiones de interés público están más expuestas al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público y, por tanto, se han expuesto voluntariamente a este escrutinio más exigente. Esto no significa, de modo alguno, que el honor de las personas participantes en asuntos de interés público no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático.

76. Por otro lado, en relación con el carácter necesario y el riguroso análisis de proporcionalidad que debe regir entre la limitación al derecho a la libertad de expresión y la protección del derecho a la honra, se deberá buscar aquella intervención que, siendo la más idónea para restablecer la reputación dañada, contenga, además, un grado mínimo de afectación en el ámbito de la libertad de expresión. A este respecto, en el marco de la libertad de información, el Tribunal considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Ahora bien, esto no significa una exigencia estricta de veracidad, por lo menos en lo que hace referencia a cuestiones de interés público, reconociendo como descargo el que la publicación se haga de buena fe o justificadamente y siempre de conformidad con unos estándares mínimos de ética y profesionalidad en la búsqueda de la verdad. Asimismo, el Tribunal advierte que, para que exista el periodismo de investigación en una sociedad democrática, es necesario dejar a los periodistas “espacio para el error”, toda vez que sin ese margen de error no puede existir un periodismo independiente ni la posibilidad, por tanto, del necesario escrutinio democrático que dimana de este.

77. Adicionalmente, la Corte también considera que nadie podrá ser sometido a responsabilidades ulteriores por la difusión de información relacionada con un asunto público y que tenga como base material que es accesible al público o que proviene de fuentes oficiales.

78. Por último, también se debe destacar la necesidad de que, en caso de estimarse adecuado otorgar una reparación a la persona agraviada en su honra, la finalidad de esta no debe ser la de castigar al emisor de la información, sino la de restaurar a la persona afectada. A este respecto, los Estados deben ejercer la máxima cautela al imponer reparaciones, de tal manera que no disuadan a la prensa de participar en la discusión de asuntos de legítimo interés público (…)”.

Aunado a lo anterior cabe destacar que la libertad de expresión, conforme lo dispone el artículo 13.3 de la Convención Americana sobre Derechos Humanos, no puede ser restringida o coartada a través del uso de medidas o vías indirectas. Sin embargo, este aspecto en particular, será desarrollado más adelante.

V.En cuanto a la libertad de prensa como manifestación del derecho a la libertad de expresión. La libertad de prensa se fundamenta en la libertad de expresión y, al mismo tiempo, es uno de sus vehículos naturales. Es una de las principales y más importantes manifestaciones de la libertad de expresión. La ya citada Declaración de Chapultepec ha sido contundente en el resguardo que merece particularmente la libertad de prensa, por lo que, en su primer principio dispone que “1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.

Se trata de un derecho fundamental que defiende que cualquier persona pueda, de una parte, acceder a información y, de otra, difundir esta a través de cualquier medio de expresión, sea medios impresos (publicaciones periodísticas, revistas, folletos, etc.), radio, televisión e, incluso, más modernamente, haciendo uso del internet y de las plataformas digitales, entre otros. Particularmente, esta Sala ha definido este derecho como aquel que tienen los administrados “(…) de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos (...)” (Sentencias Nos. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 y 8396-2018 de las 12:40 hrs. de 25 de mayo de 2018).

En virtud de lo anterior, esta libertad permite a las personas la posibilidad de organizarse y crear medios de comunicación independientes del poder gubernamental, en los cuales tienen el derecho de expresarse libremente, sin censura. Todo esto, además, sin temor a las represalias del Estado o de otras entidades o individuos. La finalidad de este este derecho, es garantizar a la población recibir y difundir una información que no está manipulada ni, tampoco, al servicio de una persona, entidad o interés particular.

Desde sus primeros pronunciamientos, la Corte IDH, al resolver la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas mediante sentencia de 13 de noviembre de 1985, aludió a esta libertad desde el ejercicio periodístico e indicó que:

“(…) 72. (...) La profesión de periodista -lo que hacen los periodistas- implica precisamente el buscar, recibir y difundir información. El ejercicio del periodismo, por tanto, requiere que una persona se involucre en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención (...)

74. (...) El ejercicio del periodismo profesional no puede ser diferenciado de la libertad de expresión, por el contrario ambas cosas están evidentemente imbricadas, pues el periodista profesional no es ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado (...)”.

Asimismo, en el caso Nombre61 vs. Costa Rica (sentencia de 2 de julio de 2004), la Corte IDH sostuvo, sobre el rol de los medios de comunicación y el periodismo en relación con la libertad de expresión, lo siguiente:

“(…) 117. Los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. Los referidos medios, como instrumentos esenciales de la libertad de pensamiento y de expresión, deben ejercer con responsabilidad la función social que desarrollan.

118. Dentro de este contexto, el periodismo es la manifestación primaria y principal de esta libertad y, por esa razón, no puede concebirse meramente como la prestación de un servicio al público a través de la aplicación de los conocimientos o la capacitación adquiridos en la universidad. Al contrario, los periodistas, en razón de la actividad que ejercen, se dedican profesionalmente a la comunicación social. El ejercicio del periodismo, por tanto, requiere que una persona se involucre responsablemente en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención.

119. En este sentido, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca. (…)”.(El destacado no forma parte del original).

Más recientemente, en el caso Nombre64 y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH reiteró parte de lo anteriormente citado y sostuvo, sobre este mismo tema, lo siguiente:

“(…) b.2 Importancia del rol del periodista en una sociedad democrática 66. La Corte ha destacado que el ejercicio profesional del periodismo “no puede ser diferenciado de la libertad de expresión, por el contrario, ambas cosas están evidentemente imbricadas, pues el periodista profesional no es, ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado”. El Tribunal ha afirmado que los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, la Corte ha caracterizado los medios de comunicación social como verdaderos instrumentos de la libertad de expresión y, además, ha señalado que “[s]on los medios de comunicación social los que sirven para materializar el ejercicio de la libertad de expresión, de tal modo que sus condiciones de funcionamiento deben adecuarse a los requerimientos de esa libertad. Para ello es indispensable, inter alia, la pluralidad de medios, la prohibición de todo monopolio respecto de ellos, cualquiera sea la forma que pretenda adoptar, y la garantía de protección a la libertad e independencia de los periodistas”.

67. El Tribunal recuerda que, para que la prensa pueda desarrollar su rol de control periodístico, debe no solo ser libre de impartir informaciones e ideas de interés público, sino que también debe ser libre para reunir, recolectar y evaluar esas informaciones e ideas. En su informe de 2012 al Consejo de Derechos Humanos de las Naciones Unidas, el Relator especial sobre la promoción y protección del derecho a la libertad de opinión y expresión de las Naciones Unidas se refirió a que las personas que desarrollan una actividad periodística “observan, describen, documentan y analizan los acontecimientos y documentan y analizan declaraciones, políticas y cualquier propuesta que pueda afectar a la sociedad, con el propósito de sistematizar esa información y reunir hechos y análisis para informar a los sectores de la sociedad o a esta en su conjunto”. Lo anterior implica que cualquier medida que interfiera con las actividades periodísticas de personas que están cumpliendo con su función obstruirá inevitablemente con el derecho a la libertad de expresión en sus dimensiones individual y colectiva.

68. Adicionalmente, en el marco de la libertad de información, esta Corte considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Es decir, resulta válido reclamar equidad y diligencia en la confrontación de las fuentes y la búsqueda de información. Esto implica el derecho de las personas a no recibir una versión manipulada de los hechos. En consecuencia, los periodistas tienen el deber de tomar alguna distancia crítica respecto a sus fuentes y contrastarlas con otros datos relevantes. Por su lado, el Tribunal Europeo de Derechos Humanos ha señalado que la libertad de expresión no garantiza una protección ilimitada a los periodistas, inclusive en asuntos de interés público. En efecto, dicho Tribunal ha indicado que, aun cuando están amparados bajo la protección de la libertad de expresión, los periodistas deben ejercer sus labores obedeciendo a los principios de un “periodismo responsable” y ético, lo cual resulta de particular relevancia en una sociedad contemporánea donde los medios no sólo informan sino también pueden sugerir, a través de la manera cómo presentan la información, la forma en que dicha información debe ser entendida.

69. Además, dada la importancia de la libertad de expresión en una sociedad democrática y la elevada responsabilidad que ello entraña para quienes ejercen profesionalmente labores de comunicación social, el Estado no sólo debe minimizar las restricciones a la circulación de la información sino también equilibrar, en la mayor medida de lo posible, la participación de las distintas informaciones en el debate público, impulsando el pluralismo informativo. Por último, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca.

70. En el marco de esta protección que deben otorgar los Estados, resulta fundamental la protección de fuentes periodísticas, piedra angular de la libertad de prensa y, en general, de una sociedad democrática, toda vez que permiten a las sociedades beneficiarse del periodismo de investigación con el fin de reforzar la buena gobernanza y el Estado de Derecho. La confidencialidad de las fuentes periodísticas es, por lo tanto, esencial para el trabajo de los periodistas y para el rol que cumplen de informar a la sociedad sobre asuntos de interés público (…)”. (El destacado no forma parte del original).

Así las cosas, la libertad de prensa en relación con la libertad de expresión, hacen referencia al derecho de toda persona, y de los medios de comunicación en particular, a través de sus periodistas, de investigar e informar, sin limitaciones irrazonables o coacciones.

La Corte Constitucional Colombiana, ha hecho alusión también a esta libertad destacando tres de sus más importantes características. Particularmente, en la Sentencia No. C-135/21 de 13 de mayo de 2021, sostuvo que la prensa cumple un rol educador, es un mecanismo que contribuye a la construcción del diálogo social pacífico y, a su vez, es un guardián de la democracia. Además, explicó expresamente lo siguiente sobre estas características:

“(…) 57.1. Rol de educador. Los medios de comunicación y la prensa actúan como difusores del conocimiento. Esto permite que el público en general pueda acceder a información sobre hechos, conocimiento científico, las leyes que los regulan e información pública en sentido amplio, que de otro modo no podrían conocer. Es una fuente que centraliza y luego difunde el conocimiento, lo que permite que la ciudadanía se eduque y la democracia se fortalezca.

57.2. Mecanismo de contribución al diálogo social. El acceso al conocimiento que la prensa y los medios masivos de comunicación permiten, junto con el análisis investigativo adoptado por la misma, llevan a un mayor diálogo y debate pacífico de la ciudadanía en torno a los asuntos de interés público.

57.3. Guardián de la democracia. La prensa y los medios masivos de comunicación han sido denominados “el cuarto poder” o el “guardián de la democracia”, en alusión a la función que ejercen de control a la Administración Pública, y su designación como instrumento de rendición de cuentas a aquellos que detentan el poder (…)”.

Este órgano constitucional igualmente se ha pronunciado sobre esta libertad. Así, en el Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 señaló:

“(…) La libertad de prensa engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de periódicos, folletos, revistas y publicaciones de toda clase. Es por su naturaleza vehículo natural de la libertad de expresión de los ciudadanos. Se traduce en el derecho para los administrados de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos. Por su naturaleza, está sujeta a las mismas limitaciones que la libertad de expresión. Tiene como funciones en la democracia: informar (hechos, acontecimientos noticiosos), integrar la opinión (estimulando la integración social) y controlar el poder político, en cuanto es permanente guardián de la honestidad y correcto manejo de los asuntos públicos. Dado su vínculo simbiótico con la ideología democrática, un sin fin de instrumentos internacionales y prácticamente todas las Constituciones del mundo libre, desde la Declaración Francesa de 1789 (art.11) la han reconocido.

Nuestra Constitución Política por su parte, la tutela por medio de diversas normas: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en las condiciones y modos que establezca la ley” (artículo 29) “Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden público o que no perjudiquen a tercero, están fuera de la acción de la ley. No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas” (artículo 28). Otras normas constitucionales relacionada con este derecho son: “Se garantiza la libertad de petición, en forma individual o colectiva, ante cualquier funcionario público o entidad oficial, y el derecho a obtener pronta resolución (artículo 27). “Se garantiza el libre acceso a los departamentos administrativos con propósitos de información sobre asuntos de interés público. Quedan a salvo los secretos de Estado” (artículo 30).

La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema (…)”.

Asimismo, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, esta jurisdicción hizo referencia a la libertad de prensa y a su relación intrínseca con la libertad de información, señalando lo siguiente:

“(…) IV.- Por su parte, en cuanto a la libertad de información y de prensa existe también un profuso desarrollo que refiere este derecho como un derecho preferente, que no sólo es un derecho fundamental, sino que funge como garantía esencial del funcionamiento del sistema democrático. Como referencia pueden citarse las sentencias 2004-08229 y 2007-017324 que lo definen como:

"(...) El Derecho a la Información, que guarda una estrecha relación con la Libertad de Expresión y el Derecho de Prensa, consiste en la facultad de buscar, recibir y difundir información e ideas de toda índole, y puede ejercitarse mediante la palabra impresa, las emisiones de radio y de televisión. Sobre este particular, en sentencia número 2001–09250 de las 10:22 horas del 14 de setiembre de 2001, la Sala dijo lo siguiente:

“...la libertad de información es un medio de formación de opinión pública en asuntos de interés general. Este valor preferente alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa, entendida en su más amplia acepción. Esto, sin embargo, no significa que la misma libertad pueda ser entendida de manera absoluta, sino más bien debe de analizarse cada caso concreto para ponderar si la información se ha llevado a cabo dentro del ámbito protegido constitucionalmente, o por el contrario si ha transgredido ese ámbito, afectando el derecho al honor, a la intimidad o a la imagen, entre otros derechos también constitucionalmente protegidos.” En efecto, la doctrina sobre el tema señala que la Libertad de Prensa ampara la posibilidad de publicar noticias con veracidad, buenos motivos y fines justificables.

No obstante, si bien la misión de la prensa en una sociedad abierta y democrática es informar a la opinión pública en forma objetiva y veraz, esto no debe entenderse como una exigencia de carácter absoluto, pues, en la práctica, claramente existen dificultades de todo tipo que harían totalmente irracional el exigirle semejante logro a los medios de comunicación. Por esta razón, se ha aceptado que éstos solamente están obligados a buscar leal y honradamente la verdad, en la forma más imparcial que les sea posible. En otras palabras, el deber de veracidad únicamente les impone la obligación de procurar razonablemente la verdad, y no la de realizar ese cometido en forma absoluta. Por consiguiente, el deber de veracidad entraña una obligación de medios, no de resultados (…)

El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. (…) el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho (…)”. (El destacado no forma parte del original).

Igualmente, en la Sentencia No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal Constitucional dispuso lo siguiente:

“(…) es claro que el ejercicio de las libertades de expresión e información adquiere características distintivas, cuando se realiza a través de un medio de comunicación, características que variarán dependiendo de cada tipo de medio. Estas variaciones repercuten, a su vez, sobre el alcance de los derechos que se ejercen, su contenido, y las posibles limitaciones de las que eventualmente son susceptibles. Es claro que, el objeto jurídico de la protección de la libertad de expresión, en el marco de la libertad de prensa, es la posibilidad de obtener información, como insumo necesario para informarse y poder informar a una colectividad. Es decir que, en stricto senso, la libertad de expresión protege la transmisión de todo tipo de pensamientos, opiniones, ideas e informaciones personales de quien se expresa, mientras que la libertad de información permite a las personas recibir y poseer información sobre hechos, eventos, acontecimientos, personas, grupos y en general situaciones, en aras de que el receptor se entere de lo que está ocurriendo.

La libertad de información abarca actividades como la búsqueda de información e investigación, a través de fuentes, donde puede hallarse, procesarse y transmitirse a través de un medio determinado. Por eso, el derecho a informar ocupa un lugar especial dentro del ordenamiento constitucional costarricense, particularmente cuando su ejercicio se apareja con el de la libertad de prensa, es decir, cuando se ejerce a través de los medios de comunicación. Los diferentes tribunales internacionales de derechos humanos, han reconocido que los medios de comunicación ostentan una función social importante, en la construcción y sostenibilidad de los sistemas democráticos, por lo que en numerosas oportunidades se ha reconocido que los medios de comunicación colectiva, como personas jurídicas, pueden ser titulares de derechos fundamentales, según su naturaleza particular; en consecuencia, es claro que la libertad de expresión sí cobija a los medios de comunicación en tanto personas jurídicas, así como a quienes se expresan, a través de ellos.

Es igualmente pertinente destacar, en este ámbito, la relación entre la libertad de expresión del medio de comunicación como “persona jurídica”, y la libertad de expresión de las personas naturales que forman parte de la estructura organizacional de tales personas jurídicas, por ejemplo, los editores, redactores, reporteros y otros periodistas o comunicadores sociales, que contribuyen a la transmisión de expresiones de terceros, a la vez que ejercen su propia libertad de expresión. La relación existente entre ambas libertades, y a su vez entre dichas libertades y la libertad de expresión de quien efectivamente está comunicando un mensaje a través de tales medios o personas, ha de dilucidarse en cada caso concreto con especial atención a los distintos intereses en juego, para llegar a una solución que logre el máximo nivel de armonización concreta entre todos ellos, y a su vez con los intereses del receptor y, en especial, del público en general.

La difusión masiva que alcanzan las informaciones transmitidas a través de los medios y su poder de penetración, el impacto profundo que pueden tener sobre las personas en general, garantiza el desarrollo democrático de un estado constitucional y a su vez, propicia el fortalecimiento de la libertad de expresión.

En este sentido, la Corte Interamericana de Derechos Humanos ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca, pues los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual, es indispensable que recojan las más diversas informaciones y opiniones (Caso Nombre65 vs Panamá- Corte I.D.H.-).

A su vez, la Corte Europea de Derechos Humanos, al interpretar el artículo 10 de la Convención Europea, concluyó que "necesarias", sin ser sinónimo de "indispensables", implica la" existencia de una ‘necesidad social imperiosa’ y que para que una restricción sea "necesaria" no es suficiente demostrar que sea "útil", "razonable" u "oportuna" (21). Este concepto de “necesidad social imperiosa” fue hecho suyo por la Corte en su opinión consultiva OC-5/85, La Colegiación Obligatoria de Periodistas (artículos 13 y 29 de la Convención Americana sobre Derechos Humanos). (…)

Ha destacarse que es a través de los medios de comunicación, que la libertad de expresión contribuye a la consolidación de la sociedad democrática. Por lo tanto, las condiciones de su uso, deben conformarse con los requisitos de esta libertad, lo que significa que debe garantizarse la libertad e independencia de los periodistas y los medios de comunicaciones (opinión consultiva OC-5/85 Corte IDH, La Colegiación Obligatoria de Periodistas).

De acuerdo con la jurisprudencia de la Corte Interamericana, la libertad de expresión no está completa en el reconocimiento teórico del derecho a hablar o escribir, sino cuando también incluye, en forma inseparable, el derecho a usar todo medio adecuado para divulgar información y garantizar que llegue a la audiencia más amplia posible (…) (Caso Nombre65 vs Panamá- Corte I.D.H.-). No obstante, como cualquier otro derecho humano, la libertad de expresión no es un derecho absoluto, y puede estar sujeta a limitaciones por parte de cualquiera autoridad estatal o eventualmente de particulares, previamente adoptadas por el legislador bajo estrictas condiciones. (…)”. (El destacado no forma parte del original).

VI. TOCANTE A LA LIBERTAD DE EXPRESIÓN (Y DE PRENSA) COMO GARANTES DEL SISTEMA DEMOCRÁTICO

La libertad de expresión y, concomitantemente, el ejercicio de la libertad de prensa, devienen en pilares fundamentales sobre los que se erige una sociedad democrática. Resulta prácticamente incuestionable la intrínseca relación que existe entre tales libertades y la democracia; de ahí que, esta última se debilita y erosiona arbitrariamente cuando dichas libertades no se pueden ejercer plenamente ni, tampoco, se respetan y garantizan en los ordenamientos jurídicos.

La Carta Democrática Interamericana (aprobada por los Estados Miembros de la OEA durante una sesión extraordinaria de la Asamblea General que se llevó a cabo el 11 de septiembre de 2001 en Lima, Perú), sobre este particular, dispone en su artículo 4 que: “Son componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”. Además, hay que recordar que la ya dictada Declaración de Principios sobre Libertad de Expresión establece en su primer principio que la libertad de expresión es “(…) un requisito indispensable para la existencia misma de una sociedad democrática”.

La libertad de prensa (o lo que algunos denominan una prensa libre), como manifestación de la libertad de expresión, constituye un elemento esencial para fiscalizar –sin represiones–, las actuaciones de los terceros, sean de índole privada o funcionarios públicos, principalmente de los que ocupan altos cargos o aspiran a este, permitiendo así, consecuentemente, la rendición de cuentas, combatir la corrupción, la transparencia en el manejo de fondos públicos, entre otros muchos aspectos que resultan fundamentales para mantener vigente un sistema democrático. Parte de ese deber, reside en el investigar a las personas en el poder, principalmente al gobierno, formulando los cuestionamientos difíciles e intentar así revelarle a la ciudadanía lo que realmente está sucediendo, como medio, a su vez, para que tomen las decisiones correctas, principalmente, a la hora de votar y, también posteriormente, cuando se está en ejercicio del poder.

Tal y como lo ha manifestado la llamada Unión por las Libertades Civiles de Europa (organización no gubernamental que promueve las libertades civiles para todas las personas en la Unión Europea) “(…) Una prensa libre ayuda en cada paso de este proceso. Proporciona información a los votantes antes de votar; fomenta el diálogo y el debate para enriquecer la comprensión de esta información; y luego informa a la ciudadanía sobre la labor del gobierno y si realmente están llevando a cabo sus promesas. En democracia, la ciudadanía delega el poder de decisión en sus cargos electos, y la prensa es una forma de controlarlos (…)”. En esencia, es factible afirmar, entonces, que la libertad de prensa resulta fundamental en los sistemas democráticos, pues permite a los ciudadanos formarse opiniones y criterios en relación con la realidad en que viven. Por este motivo, lamentablemente los medios de comunicación independientes son precisamente uno de los objetivos principales de los sistemas políticos antidemocráticos o, al menos, de aquellos que quieren perfilarse y van encaminados hacia ello.

Esta Sala Constitucional se ha manifestado específicamente sobre la libertad de expresión y su función como garante de la democracia. Así, en el emblemático Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006, señaló lo siguiente:

“(…) VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos.

Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986) (…)”. (El destacado no forma parte del original).

Aunado a ello, respecto estrictamente a los medios de comunicación y su responsabilidad a la hora de informar y contribuir así con los procesos democráticos, en ese mismo voto se sostuvo lo siguiente:

“(…) XI .- La responsabilidad social de los medios de comunicación como detentadores de poder frente al ciudadano. La lucha por la defensa de los derechos fundamentales de los habitantes, tradicionalmente surge contra el poder político, no obstante, posteriormente evoluciona para proteger a la persona de otros sujetos particulares que tienen una relación de poder con respecto al ciudadano, en aquellos casos que lesionen algún derecho fundamental. Hay que tener claro que en las democracias, los medios de comunicación no tienen un papel simplemente pasivo en el tema de la libertad de expresión; no se limitan a ser víctimas de los atentados contra tan importante libertad. Tienen por el contrario una gran responsabilidad y poder al ser los vehículos naturales para que las libertades comunicativas (expresión, imprenta, información, etcétera) sean una realidad, que puedan servir al desarrollo de los procesos democráticos formando una ciudadanía bien informada, que conozca sus derechos y sus obligaciones, que tenga las herramientas necesarias para poder elegir bien a sus gobernantes.

La responsabilidad social de los medios y el lugar de la libertad de expresión en el desarrollo democrático es lo que justifica que el estatuto jurídico de los medios y de los profesionales que en ellos trabajan sea distinto al del resto de las personas. Pero ese estatus, como se indicó no es invocable frente a fines ilegítimos, que incluyen el atentar contra libertades fundamentales de mala fe o con negligencia evidente. A tenor de estas razones y fundamentos, es que cabe concluir que el Estado, y concretamente el legislador, tiene derecho y el deber de proteger a los individuos, frente al uso ilegítimo de este derecho, el cual, mal utilizado, es tan dañino para la democracia como la censura misma, no sólo porque su ejercicio de mala fe, puede lesionar el honor de la persona afectada, sino el de la sociedad entera de recibir información adecuada capaz de ayudarla a conformar la opinión pública en forma transparente.

El peligro que representa un mal uso de este derecho para la democracia es tan grave como su no ejercicio, y ese mal uso no está determinado sólo por la negligencia evidente o mala fe que afecte otras libertades, sino también frente a otros factores, como la posibilidad que la falta de un pluralismo mediático afecte la capacidad de la prensa de generar una opinión pública libre e informada. Naturalmente que la exigencia de ese pluralismo, no se reduce a una vertiente puramente cuantitativa, sino que también conlleva algún factor cualitativo que se concreta en la "presencia de diversidad de opiniones y de fuentes de información”. Sin duda alguna que por su rol en la democracia, su posibilidad de difusión, los medios de comunicación están en una relación de poder con respecto al ciudadano y a la sociedad, y aunque su existencia es fundamental para fines legítimos y esenciales de la democracia, tienen el potencial, como cualquier poder, de desviarse ocasionalmente, frente a actuaciones individuales, en cuyo caso el Estado tiene la obligación de establecer las previsiones necesarias para la protección del sistema y del individuo.

Evidentemente que como se indicó, la protección del Estado no puede darse como lo ha señalado la Corte de Derechos Humanos, con el derecho a censurar previamente las informaciones, lo cual será a todas luces inconstitucional (art. 28), sino que se refiere a su control a posteriori, en el caso que haya existido intención de infligir daño o actuado con pleno conocimiento de que se estaban difundiendo noticias falsas o se condujo con manifiesta negligencia en la búsqueda de la verdad o falsedad de las mismas y con ella resultó afectado el honor y reputación de alguna persona. La Sala comparte la opinión de la Corte Interamericana de Derechos Humanos (opinión consultiva 5/85) en el sentido de que:

33. ...No sería lícito invocar el derecho de la sociedad a estar informada verazmente para fundamentar un régimen de censura previa supuestamente destinado a eliminar las informaciones que serían falsas a criterio del censor. Como tampoco sería admisible que, sobre la base del derecho a difundir informaciones e ideas, se constituyeran monopolios públicos o privados sobre los medios de comunicación para intentar moldear la opinión pública según un solo punto de vista.

De igual forma reconoce la jurisprudencia sentada en el caso New York Times vs. Nombre152 de 1964 en la que se señala que la protección que la Constitución ofrece a la libertad de expresión no depende de la verdad, popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos. Los enunciados erróneos son inevitables en un debate libre, y deben ser protegidos para dejar a la libertad de expresión aire para que pueda respirar y sobrevivir. Las normas deben impedir que un funcionario público pueda demandar a un medio de comunicación o a un particular por daños causados por una difamación falsa relativa a su comportamiento oficial, a menos que se pruebe con claridad convincente que la expresión se hizo con malicia real, es decir, con conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa.

Esta salvedad que se hace es indispensable frente a la obligación del Estado de proteger la reputación y honra de las personas y más aún, dentro de la obligación que tiene de velar porque el mal uso o desvío de esta libertad no se utilice para violar fines igualmente esenciales del sistema democrático, entre los que se incluye el sistema de derechos fundamentales. Es reconocida en doctrina la interdependencia que existe entre los derechos fundamentales y su valor sistémico, en ese sentido, la protección de una libertad en demérito de otras por falta de una visión hermenéutica tiene un efecto negativo sobre todo el sistema de libertad (ver sentencia 2771-03 de esta Sala)". (…)”. (El destacado no forma parte del original).

Asimismo, en la Sentencia No. 15220-2016 de las 16:00 hrs de 18 de octubre de 2016, este órgano constitucional señaló muy atinadamente lo siguiente:

“(…) La libertad de expresión es un pilar fundamental del Estado democrático, ya que permite la circulación de ideas e información –aun aquellas de oposición al gobierno de turno-, la formación de la opinión pública, la transparencia, la fiscalización y denuncia de las acciones del gobierno, entre otras. No en vano señala Nombre153 que la democracia es el ejercicio de poder en público (…) tratándose de funcionarios públicos, y en particular aquellos de alta jerarquía, el umbral de la libertad de expresión y el deber de tolerancia a la crítica aumentan. Esto es así porque un elemento fundamental del sistema democrático, que lo distingue de las dictaduras, consiste en la amplia libertad de que gozan tanto la ciudadanía en general como la prensa en particular, con respecto de exteriorizar sus críticas y cuestionar la idoneidad (técnica o moral) de los funcionarios públicos y sus decisiones, sin temor a censura ni represalias, lo que evidentemente no obsta que la persona que se sienta afectada, acuda al derecho de rectificación o a otras vías judiciales ordinarias en defensa de su imagen y buen nombre.

En el caso concreto de los funcionarios públicos, se encuentran más expuestos al escrutinio público, toda vez que el ejercicio de sus funciones trasciende el ámbito privado y, por su impacto en el desarrollo y acontecer político y nacional, se incorpora a la esfera pública, esto es tiene consecuencias de interés para la ciudadanía en general. Asimismo, el control ciudadano sobre la Administración Pública y el deber de rendición de cuentas de los funcionarios públicos (artículo 11 de la Constitución Política), solo pueden darse en un sistema democrático de amplia libertad de expresión e información. Esa es la relevancia de la dimensión social del derecho de información, íntimamente ligado al de expresión. En tal sentido, precisamente, la Corte Interamericana de Derechos Humanos se expresó en el caso Nombre66:

“115. Por último, respecto del derecho a la honra, la Corte recuerda que las expresiones concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores gozan de mayor protección, de manera tal que se propicie el debate democrático. La Corte ha señalado que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque se han expuesto voluntariamente a un escrutinio más exigente. Sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral no se asienta en la calidad del sujeto, sino en el interés público de las actividades que realiza (…)

122. Como ya se ha indicado, el derecho internacional establece que el umbral de protección al honor de un funcionario público debe permitir el más amplio control ciudadano sobre el ejercicio de sus funciones (supra párr. 115). Esta protección al honor de manera diferenciada se explica porque el funcionario público se expone voluntariamente al escrutinio de la sociedad, lo que lo lleva a un mayor riesgo de sufrir afectaciones a su honor, así como también por la posibilidad, asociada a su condición, de tener una mayor influencia social y facilidad de acceso a los medios de comunicación para dar explicaciones o responder sobre hechos que los involucren.” De igual forma, en el caso Nombre67, la Corte indicó:“ 97. El control democrático, por parte de la sociedad a través de la opinión pública, fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un mayor margen de tolerancia frente a afirmaciones y apreciaciones vertidas en el curso de los debates políticos o sobre cuestiones de interés público.

98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. (…)”. (El destacado no forma parte del original).

A mayor abundamiento, esta Sala, en la Sentencia No. 12926-2017 de las 09:30 hrs. de 18 de agosto de 2017, indicó, sobre tema en particular, que:

"(…) la libertad de prensa es un pilar fundamental del Estado democrático al punto de que no puede existir el segundo sin la garantía efectiva a favor de todos los habitantes Nombre01 del ejercicio del derecho de buscar, recibir y difundir información e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección, sin que dicho derecho pueda ser sometido a la previa censura (...)”.

La Corte Interamericana de Derechos Humanos ha hecho también alusión a la estrecha relación que existe entre democracia y libertad de expresión, y ha referido que se trata de un elemento fundamental sobre el cual se basa la existencia de una sociedad democrática. En ese particular, en la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas (sentencia de 13 de noviembre de 1985), dispuso que es conditio sine qua non para que quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, razón por la cual afirma que una sociedad que no está bien informada no es plenamente libre. Es decir, que dentro de los sistemas democráticos el ejercicio de la libertad de expresión permite el desarrollo y proyección del ser humano, contribuye al funcionamiento de la democracia y es un medio o instrumento para el ejercicio de los otros derechos humanos. Por su parte, en el caso Nombre61 vs. Costa Rica, la Corte sostuvo lo siguiente:

“(…) 113. En iguales términos a los indicados por la Corte Interamericana, la Corte Europea de Derechos Humanos se ha manifestado sobre la importancia que reviste en la sociedad democrática la libertad de expresión, al señalar que “(…) la libertad de expresión constituye uno de los pilares esenciales de una sociedad democrática y una condición fundamental para su progreso y para el desarrollo personal de cada individuo. Dicha libertad no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino también en lo que toca a las que ofenden, resultan ingratas o perturban al Estado o a cualquier sector de la población. Tales son las demandas del pluralismo, la tolerancia y el espíritu de apertura, sin las cuales no existe una sociedad democrática. (…) Esto significa que (…) toda formalidad, condición, restricción o sanción impuesta en la materia debe ser proporcionada al fin legítimo que se persigue (…)”. (Es destacado no forma parte del original).

De igual manera, en esta última ocasión, la Corte IDH señaló que la Comisión Africana de Derechos Humanos y de los Pueblos y el Comité de Derechos Humanos también se han pronunciado en ese mismo sentido; de ahí que haya concluido que existe una coincidencia en los diferentes sistemas regionales de protección a los derechos humanos y en el universal, en cuanto al papel esencial que juega la libertad de expresión en la consolidación y dinámica de una sociedad democrática. Además, indicó expresamente que:

“(…) 116. (…) Sin una efectiva libertad de expresión, materializada en todos sus términos, la democracia se desvanece, el pluralismo y la tolerancia empiezan a quebrantarse, los mecanismos de control y denuncia ciudadana se empiezan a tornar inoperantes y, en definitiva, se empieza a crear el campo fértil para que sistemas autoritarios se arraiguen en la sociedad (…)”.

En el caso Nombre65 vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH mencionó que, a su vez, la Corte Europea ha puesto énfasis en que el artículo 10.2 de la Convención Europea, referente a la libertad de expresión, deja un margen muy reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público y explicó que, según dicho Tribunal: “(…) 155. (…) los límites de críticas aceptables son más amplios con respecto al gobierno que en relación a un ciudadano privado o inclusive a un político. En un sistema democrático las acciones u omisiones del gobierno deben estar sujetas a exámenes rigurosos, no sólo por las autoridades legislativas y judiciales, sino también por la opinión pública (…)”.

Asimismo, en la sentencia Nombre64 y otro vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH confirmó lo anteriormente citado, de la siguiente manera:

“(…) b.1 Importancia de la libertad de expresión en una sociedad democrática (…)

63. (…) la Corte ha establecido que la libertad de expresión, particularmente en asuntos de interés público, “es una piedra angular en la existencia misma de una sociedad democrática”63. La Corte Interamericana, en su Opinión Consultiva OC-5/85, hizo referencia a la estrecha relación existente entre democracia y libertad de expresión, al establecer que este derecho es indispensable para la formación de la opinión pública, así como también es conditio sine qua non para que los partidos políticos, los sindicatos, las sociedades científicas y culturales, y en general, quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, y para que, en suma, la comunidad esté suficientemente informada a la hora de ejercer sus opciones. Y es que el control democrático por parte de la sociedad a través de la opinión pública fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un margen reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público.

64. El Tribunal recuerda que, en una sociedad democrática, los derechos y libertades inherentes a la persona, sus garantías y el Estado de Derecho constituyen una tríada, cada uno de cuyos componentes se define, completa y adquiere sentido en función de los otros. En ese sentido, el Tribunal advierte que los artículos 3 y 4 de la Carta Democrática Interamericana resaltan la importancia de la libertad de expresión en una sociedad democrática, al establecer que “[s]on elementos esenciales de la democracia representativa, entre otros, el respeto a los derechos humanos y las libertades fundamentales; el acceso al poder y su ejercicio con sujeción al Estado de Derecho; la celebración de elecciones periódicas, libres, justas y basadas en el sufragio universal y secreto como expresión de la soberanía del pueblo; el régimen plural de partidos y organizaciones políticas; y la separación e independencia de los poderes públicos”. Asimismo, indica que “[s]on componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”.

65. Así, sin una efectiva garantía de la libertad de expresión se debilita el sistema democrático y sufren quebranto el pluralismo y la tolerancia; los mecanismos de control y denuncia ciudadana pueden volverse inoperantes y, en definitiva, se crea un campo fértil para que arraiguen sistemas autoritarios. En consecuencia, una sociedad que no está bien informada no es plenamente libre (…)”.

Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), señaló lo siguiente:

“(…) la CIDH y la Corte Interamericana han subrayado en su jurisprudencia que la importancia de la libertad de expresión dentro del catálogo de los derechos humanos se deriva también de su relación estructural con la democracia. Esta relación, que ha sido calificada por los órganos del sistema interamericano de derechos humanos como “estrecha”, “indisoluble”, “esencial” y “fundamental”, entre otras, explica gran parte de los desarrollos interpretativos que se han otorgado a la libertad de expresión por parte de la CIDH y la Corte Interamericana en sus distintas decisiones sobre el particular. Es tan importante el vínculo entre la libertad de expresión y la democracia que, según ha explicado la CIDH, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos pluralistas y deliberativos mediante la protección y el fomento de la libre circulación de información, ideas y expresiones de toda índole (…) si el ejercicio del derecho a la libertad de expresión no solo tiende a la realización personal de quien se expresa, sino a la consolidación de sociedades verdaderamente democráticas, el Estado tiene la obligación de generar las condiciones para que el debate público no solo satisfaga las legítimas necesidades de todos como consumidores de determinada información (de entretenimiento, por ejemplo), sino como ciudadanos.

Es decir, tienen que existir condiciones suficientes para que pueda producirse una deliberación pública, plural y abierta, sobre los asuntos que nos conciernen a todos en tanto ciudadanos de un determinado Estado (…)”. (El destacado no forma parte del original).

También, dicha Relatoría expuso lo siguiente:

“(…) en una sociedad democrática, la prensa tiene derecho a informar libremente y criticar al gobierno, y el pueblo tiene derecho a ser informado sobre distintas visiones de lo que ocurre en la comunidad (…)”.

En la misma línea de pensamiento, la Corte Europea de Derechos Humanos, en el caso Nombre154 vs. Austria (sentencia de 8 de julio de 1986), resaltó que "(…) la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática (…)”.

Asimismo, la Corte Constitucional Colombiana, ha hecho referencia al tema bajo estudio en varias oportunidades. Así, en la Sentencia No. T-256/13 30 de abril de 2013, sostuvo que: “(…) el derecho a la libertad de expresión, es un principio del ejercicio de la democracia pues es en el marco de un estado democrático donde la participación de la ciudadanía adquiere especial relevancia, y en desarrollo de ella, se garantiza la libertad de expresar las distintas opiniones y de manifestar los pensamientos minoritarios sin miedo a ser reprimido por poderes estatales (…)” y explicó que:

“(…) Por ello, los pronunciamientos de la Comisión Interamericana y la jurisprudencia de la Corte Interamericana de Derechos Humanos han resaltado que la libertad de expresión cumple una triple función en el sistema democrático: a) asegura el derecho individual de toda persona a pensar por cuenta propia y a compartir con otros el pensamiento y la opinión personal, b) tiene una relación estrecha, indisoluble, esencial, fundamental y estructural con la democracia, y en esa medida, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos, pluralistas y deliberativos, mediante la protección y fomento de la libre circulación de ideas y opiniones, y c) finalmente, es una herramienta clave para el ejercicio de los demás derechos fundamentales, toda vez que “se trata de un mecanismo esencial para el ejercicio del derecho a la participación, a la libertad religiosa, a la educación, a la identidad étnica o cultural y, por supuesto, a la igualdad no sólo entendida como el derecho a la no discriminación, sino como el derecho al goce de ciertos derechos sociales básicos (…)”.

Igualmente, este órgano constitucional agregó que:

“(…) Esta Corporación desde muy temprano en su jurisprudencia reconoció el valor de este derecho en el marco de una democracia con las siguientes palabras: “Aunque la libertad de expresar y difundir el propio pensamiento y opiniones es un derecho de toda persona, no es sólo un derecho individual, sino también garantía de una institución política fundamental: "la opinión pública libre". Una opinión pública libre está indisolublemente ligada con el pluralismo político, que es un valor fundamental y un requisito de funcionamiento del estado democrático. Sin una comunicación pública libre quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidos a formas hueras las institucionales representativas y participativas y absolutamente falseado el principio de la legitimidad democrática (…)”. (El destacado no forma parte del original).

En la Sentencia No. T-543 de 2017 de 25 de agosto de 2017, la Corte Constitucional Colombiana señaló que la libertad de expresión cumple las siguientes funciones en una sociedad democrática: “(…) (i) permite buscar la verdad y desarrollar el conocimiento; (ii) hace posible el principio de autogobierno; (iii) promueve la autonomía personal; (iv) previene abusos de poder; y (v) es una “válvula de escape” que estimula la confrontación pacífica de las decisiones estatales o sociales que no se compartan (…)”. Por su parte, en la Sentencia No. C-135/21 de 13 de mayo de 2021, dicha Corte mencionó que algunos de los aportes del derecho fundamental a la libertad de expresión al funcionamiento democrático, son los siguientes: “(…) i) permite buscar la verdad y desarrollar el conocimiento; ii) crea un espacio de sano diálogo y protesta para la ciudadanía, que consolida sociedades pluralistas y deliberativas; iii) permite establecer mecanismos de control y rendición de cuentas ante los gobernantes; iv) promueve el autogobierno ciudadano; y v) contribuye a mejores elecciones populares (…)”.

También, en la Sentencia No. T-145/19 de 2 de abril de 2019, la Corte Colombiana sostuvo que la libertad de expresión “(…) es un pilar del Estado Social de Derecho y un principio fundamental de los regímenes democráticos, donde se respeta la dignidad humana y se valora la participación de la ciudadanía y de todos los sectores, lo que permite consolidar sociedades pluralistas y deliberativas (…)”. Asimismo, en esta última ocasión, dicho órgano señaló que “(…) El fundamento principal del amparo jurídico de la libertad de expresión encuentra sustento en la dignidad humana, en la autonomía de la persona y en su carácter instrumental para el ejercicio de múltiples derechos, y en las distintas funciones que cumple en los sistemas democráticos (…)”.

VII. SOBRE LA PROHIBICIÓN DE IMPONER RESTRICCIONES POR VÍAS INDIRECTAS A LA LIBERTAD DE EXPRESIÓN (Y A LA LIBERTAD DE PRENSA)

La libertad de expresión y, por ende, la libertad de prensa, no son considerados derechos irrestrictos y absolutos, sino que –tal y como se analizó supra–, se encuentran sujetos a ciertos límites o controles ulteriores. Al respecto, el ordinal 29 de nuestra Carta Política estatuye que las personas serán responsables de los abusos que cometan en el ejercicio del derecho a la libertad de expresión y, por su parte, el artículo 13.2 de la Convención Americana sobre Derechos Humanos dispone que el referido derecho está sujeto a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar el respeto a los derechos o la reputación de los demás o proteger la seguridad nacional, el orden público, la salud o la moral pública.

Sin embargo, igualmente, estas limitaciones, ha dicho este Tribunal Constitucional, gozan de carácter excepcional y no pueden restringir tales derechos más allá de lo estrictamente necesario, vaciándolos de contenido y convirtiéndose así en un mecanismo directo o indirecto de censura, el cual no tiene cabida en nuestro medio. Estas libertades, en consecuencia, no pueden ser objeto de restricciones ilegítimas directas (como sería, por ejemplo, la censura previa, el asesinato de periodistas en virtud del ejercicio de sus funciones, etc.) ni, tampoco, de restricciones de índole indirecto (también llamada soft censorship, censura sutil, velada). Estas últimas medidas –de índole indirecto–, se caracterizan por ser menos evidentes, pero que igualmente tienen como propósito reducir o coartar arbitrariamente la libertad de expresión. Se podrían considerar formas más sutiles en que las autoridades públicas o particulares buscan restringir final y efectivamente la libertad de expresión.

Los autores Nombre68 y Nombre155 las definen muy acertadamente como aquellas “(…) acciones u omisiones que traen consigo la inhibición del sujeto, como consecuencia de la intimidación, la obstrucción de canales de expresión o la “siembra” de obstáculos que impiden o limitan severamente el ejercicio de aquella libertad (…)” (Nombre68 (Nombre156) y Nombre155 (Nombre157). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, la Relatoría para la Libertad de Expresión explica que “(…) Estas medidas (…) no han sido diseñadas estrictamente para restringir la libertad de expresión. En efecto, éstas per se no configuran una violación de este derecho. No obstante ello, sus efectos generan un impacto adverso en la libre circulación de ideas que con frecuencia es poco investigado y, por ende, más difícil de descubrir (…)” (Informe Anual de la Relatoría para la Libertad de Expresión, 2004).

Como ejemplos de este tipo de restricciones indirectas o censura velada se puede citar, entre otros muchos, el uso de diversos medios para intimidar y, de este modo, evitar una publicación, los controles de papel para periódicos o de frecuencias radioeléctricas, la restricción a la libertad de circulación, la concesión o supresión de publicidad estatal, las limitaciones de ingresos económicos a medios de comunicación, la imposición de altas e injustificadas cargas tributarias. Sobre este tipo de restricciones indirectas, los citados autores Nombre68 y Nombre155 explican que estas puede ocurrir cuando“(…) se vulnera un derecho diferente de la libertad de expresión misma, en forma que ésta resulta afectada –por ejemplo, en un caso, la privación de la nacionalidad del sujeto–, se practican investigaciones indebidas o excesivas, se prohíbe el acceso a determinados medios de los que regularmente se ha valido el titular del derecho, se restringe la libertad de circulación, se desconocen los efectos de un contrato o se impide a los titulares de ciertos bienes la disposición de éstos (…)” (Nombre68 (Nombre156) y Nombre155 (Nombre157).

La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, el Magistrado Nombre69, en las razones adicionales consignadas en la Sentencia No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016, hizo también referencia a algunas modalidades de este tipo de censura indirecta o velada, enumerando las siguientes: “(…) a) La negativa de acceso a las instituciones y a la información pública como represalia por una cobertura crítica, lo que obliga al medio a acudir a instancias jurisdiccionales. De esta forma, aunque finalmente se obligue a una entidad a entregar determinada información si se demuestra su carácter público, no menos cierto es que la Administración “gana” tiempo, logrando así una divulgación en un “timing” político más favorable. b) La asignación inequitativa de frecuencias de radio y televisión. c) La obstaculización del acceso a recursos elementales para la producción de un medio (como el papel o el servicio telefónico) vía fijación de requerimientos arbitrarios o imposiciones tributarias irrazonables. d) La amenaza de entablar procesos judiciales, condicionada a la divulgación o no de reportajes críticos (…)”.

En cuanto a estas restricciones de índole propiamente indirecto, el artículo 13.3 de la Convención Americana sobre Derechos Humanos, señala expresamente lo siguiente:

“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. (El destacado no forma parte del original).

La Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, Nombre62. el 11 de marzo de 1994), estatuye que no debe existir ninguna ley o acto de poder que coarte la libertad de expresión o de prensa, cualquiera sea el medio de comunicación. Asimismo, en el elenco de principios menciona lo siguiente:

“4. El asesinato, el terrorismo, el secuestro, las presiones, la intimidación, la prisión injusta de los periodistas, la destrucción material de los medios de comunicación, la violencia de cualquier tipo y la impunidad de los agresores, coartan severamente la libertad de expresión y de prensa. Estos actos deben ser investigados con prontitud y sancionados con severidad”.

“5. La censura previa, las restricciones a la circulación de los medios o a la divulgación de sus mensajes, la imposición arbitraria de información, la creación de obstáculos al libre flujo informativo y las limitaciones al libre ejercicio y movilización de los periodistas, se oponen directamente a la libertad de prensa”.

“6. Los medios de comunicación y los periodistas no deben ser objeto de discriminaciones o favores en razón de lo que escriban o digan.” “7. Las políticas arancelarias y cambiarias, las licencias para la importación de papel o equipo periodístico, el otorgamiento de frecuencias de radio y televisión y la concesión o supresión de publicidad estatal, no deben aplicarse para premiar o castigar a medios o periodistas”.

“10. Ningún medio de comunicación o periodista debe ser sancionado por difundir la verdad o formular críticas o denuncias contra el poder público”. (El destacado no forma parte del original).

Igualmente, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone, sobre este mismo tema, lo siguiente:

“5. La censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”.

“9. El asesinato, secuestro, intimidación, amenaza a los comunicadores sociales, así como la destrucción material de los medios de comunicación, viola los derechos fundamentales de las personas y coarta severamente la libertad de expresión. Es deber de los Estados prevenir e investigar estos hechos, sancionar a sus autores y asegurar a las víctimas una reparación adecuada”.

“13. La utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. (El destacado no forma parte del original).

Como se puede observar con meridiana claridad, existen múltiples formas en que se puede manipular a los medios de forma indirecta. Incluso, la Convención Americana sobre Derechos Humanos es clara al indicar que los ejemplos citados en el ordinal 13.3 no son taxativos, al señalar que este tipo de restricciones indirectas se pueden configurar también “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.

Ahora, la Corte Interamericana de Derechos Humanos se ha pronunciando en distintas ocasiones respecto a la censura velada o restricciones propiamente indirectas, condenándolas contundentemente. Así, en la Sentencia Nombre65 vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH conoció un caso planteado por Nombre21, ciudadano naturalizado del Perú y accionista mayoritario de la empresa que operaba entonces el canal 2 de la televisión de ese país. Nombre65, en esa condición, ejercía control editorial sobre los programas, particularmente, uno llamado Contrapunto (mediante el cual se difundieron varios informes periodísticos sobre torturas, un supuesto asesinato y casos de corrupción cometidos por los Servicios de Inteligencia del Gobierno Peruano) y se demostró que, en virtud de lo anterior, este fue sometido a varios actos intimidatorios que concluyeron con la emisión de un decreto que revocó su ciudadanía peruana. En tal oportunidad, la Corte IDH dispuso que la resolución que dejó sin efecto legal la nacionalidad otorgada a Nombre65 constituyó precisamente un medio indirecto para restringir su liberad de expresión, así como la de los periodistas que laboraban en dicho programa. En tal ocasión, la Corte IDH vertió los siguientes argumentos de interés:

“(…) 158. De igual manera se ha demostrado que, como consecuencia de la línea editorial asumida por el Canal 2, el señor Nombre158 fue objeto de acciones intimidatorias de diverso tipo. Por ejemplo, luego de la emisión de uno de los reportajes mencionados en el párrafo anterior, el Comando Conjunto de las Fuerzas Armadas emitió un comunicado oficial en el que denunciaba al señor Nombre158 por llevar a cabo una campaña difamatoria tendiente a desprestigiar a las Fuerzas Armadas (supra párr. 76.k). Además, el mismo día en que el Ejército emitió dicho comunicado, el Poder Ejecutivo del Perú expidió un decreto supremo que reglamentó la Ley de Nacionalidad, estableciendo la posibilidad de cancelar ésta a los peruanos naturalizados (supra párr. 76.l).

159. Ha sido probado también que días después de que el Canal 2 anunciara la presentación de un reportaje sobre grabaciones ilegales de conversaciones telefónicas sostenidas por candidatos de la oposición, el Director General de la Policía Nacional informó que no se había localizado el expediente en el que se tramitó el título de nacionalidad del señor Nombre158, y que no se había acreditado que éste hubiera renunciado a su nacionalidad israelí, razón por la cual, mediante una “resolución directoral”, se dispuso dejar sin efecto el mencionado título de nacionalidad.

160. Como consecuencia de lo anterior, el 1 de agosto de 1997 el Juez Nombre70 ordenó que se suspendiera el ejercicio de los derechos del señor Nombre158 como accionista mayoritario y Nombre138 de la Compañía y se revocara su nombramiento como Director de la misma, se convocara judicialmente a una Junta General Extraordinaria de Accionistas para elegir un nuevo Directorio y se prohibiera la transferencia de las acciones de aquél. Además, otorgó la administración provisional de la Empresa a los accionistas minoritarios, hasta que se nombrase un nuevo Directorio, retirando así al señor Nombre65 del control del Canal 2.

161. La Corte ha constatado que, después de que los accionistas minoritarios de la Compañía asumieron la administración de ésta, se prohibió el ingreso al Canal 2 de periodistas que laboraban en el programa Contrapunto y se modificó la línea informativa de dicho programa (supra párr. 76.v).

162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Nombre158 constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.

163. Al separar al señor Nombre158 del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.

164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Nombre21 (…)”. (El destacado no forma parte del original).

Otro claro ejemplo de este tipo de restricciones indirectas se consigna en el caso Nombre67 vs. Paraguay (sentencia de 31 de agosto de 2004). El señor Nombre67, quien era candidato presidencial durante la contienda electoral para las elecciones del Paraguay del año 1993, relacionó a Nombre71 (también candidato), con acciones ilícitas presuntamente cometidas por este último cuando ejercía como Nombre138 de un consorcio, las cuales, a su vez, fueron publicadas en dos diarios paraguayos. Esto originó que Nombre159 (quien trabajaba en un medio de comunicación), fuera procesado penalmente por la comisión de los delitos de difamación e injuria, siendo condenado en primera instancia en 1994 y en segunda instancia en 1997; oportunidad en la cual, a su vez, se le impuso dos meses de prisión y una multa. Además, como consecuencia de este proceso, Nombre159 fue sometido a una restricción permanente para salir del país (y, también, paralelamente, fue despedido del medio donde laboraba).

Estas sentencias, posteriormente, fueron anuladas en diciembre de 2002 por la Sala Penal de la Corte Suprema de Justicia de Paraguay. La Corte IDH, hizo referencia a la importancia de garantizar la libertad de expresión durante una campaña electoral y, luego de analizar el caso bajo estudio, sostuvo que la sanción penal a la cual fue sometida Nombre159 era considerada como un método indirecto de restricción a dicho derecho. Expresamente, en dicha ocasión, se indicó lo siguiente:

“(…) 3) La importancia de la libertad de pensamiento y de expresión en el marco de una campaña electoral.

88. La Corte considera importante resaltar que, en el marco de una campaña electoral, la libertad de pensamiento y de expresión en sus dos dimensiones constituye un bastión fundamental para el debate durante el proceso electoral, debido a que se transforma en una herramienta esencial para la formación de la opinión pública de los electores, fortalece la contienda política entre los distintos candidatos y partidos que participan en los comicios y se transforma en un auténtico instrumento de análisis de las plataformas políticas planteadas por los distintos candidatos, lo cual permite una mayor transparencia y fiscalización de las futuras autoridades y de su gestión. (…)

90. El Tribunal considera indispensable que se proteja y garantice el ejercicio de la libertad de expresión en el debate político que precede a las elecciones de las autoridades estatales que gobernarán un Estado. La formación de la voluntad colectiva mediante el ejercicio del sufragio individual se nutre de las diferentes opciones que presentan los partidos políticos a través de los candidatos que los representan. El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar. En este sentido, el ejercicio de los derechos políticos y la libertad de pensamiento y de expresión se encuentran íntimamente ligados y se fortalecen entre sí. Al respecto, la Corte Europea ha establecido que:

Las elecciones libres y la libertad de expresión, particularmente la libertad de debate político, forman juntas el cimiento de cualquier sistema democrático (Cfr. Sentencia del caso Nombre72 c. Belgica, de 2 de marzo de 1987, Serie A no. 113, p.22, párr. 47, y sentencia del caso Nombre154 c. Austria de 8 de julio 1986, Serie A no. 103, p. 26, párrs. 41-42). Los dos derechos están interrelacionados y se refuerzan el uno al otro: por ejemplo, como ha indicado la Corte en el pasado, la libertad de expresión es una de las “condiciones” necesarias para “asegurar la libre expresión de opinión del pueblo en la elección del cuerpo legislativo” (ver la sentencia mencionada más arriba del caso Nombre72, p. 24, párr. 54). Por esta razón[,] es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones.

91. La Corte observa que, en sus declaraciones, la presunta víctima hizo referencia a que la empresa CONEMPA, cuyo Nombre138 era el señor Nombre71, en ese entonces candidato presidencial, le “pasaba” “dividendos” al ex dictador Nombre160. Ha quedado demostrado, así como también es un hecho público, que dicho consorcio era una de las dos empresas encargadas de ejecutar las obras de construcción de la central hidroeléctrica de Itaipú, una de las mayores represas hidroeléctricas del mundo y la principal obra pública del Paraguay.

92. La Corte estima que no queda duda de que las declaraciones que hiciera el señor Nombre159 en relación con la empresa CONEMPA atañen a asuntos de interés público, pues en el contexto de la época en que las rindió dicha empresa se encargaba de la construcción de la mencionada central hidroeléctrica. Conforme fluye del acervo probatorio del presente caso (supra párr. 69.4), el propio Congreso Nacional, a través de su Comisión Bicameral de Investigación de Ilícitos, se encargó de la investigación sobre corrupción en Itaipú, en la cual se involucraba al señor Nombre71 y a la referida empresa.

93. La Corte observa que la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 (supra párr. 69.49), indicó que las declaraciones que el señor Nombre159 rindió en el marco político de una campaña electoral a la Presidencia de la República, “necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público”.

94. En el presente caso, al emitir las declaraciones por las que fue querellado y condenado, el señor Nombre159 estaba ejercitando su derecho a la libertad de pensamiento y de expresión en el marco de una contienda electoral, en relación con una figura pública como es un candidato presidencial, sobre asuntos de interés público, al cuestionar la capacidad e idoneidad de un candidato para asumir la Presidencia de la República. Durante la campaña electoral, el señor Nombre159 fue entrevistado sobre la candidatura del señor Nombre161 por periodistas de dos diarios nacionales, en su carácter de candidato presidencial. Al publicar las declaraciones del señor Nombre159, los diarios “ABC Color” y “Noticias” jugaron un papel esencial como vehículos para el ejercicio de la dimensión social de la libertad de pensamiento y de expresión, pues recogieron y transmitieron a los electores la opinión de uno de los candidatos presidenciales respecto de otro de ellos, lo cual contribuye a que el electorado cuente con mayor información y diferentes criterios previo a la toma de decisiones.

• 4)Las restricciones permitidas a la libertad de pensamiento y de expresión en una sociedad democrática (…)

98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. Este mismo criterio se aplica respecto de las opiniones o declaraciones de interés público que se viertan en relación con una persona que se postula como candidato a la Presidencia de la República, la cual se somete voluntariamente al escrutinio público, así como respecto de asuntos de interés público en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, afecta intereses o derechos generales, o le acarrea consecuencias importantes. Como ha quedado establecido, no hay duda de que las declaraciones que hiciera el señor Nombre159 en relación con la empresa CONEMPA atañen a asuntos de interés público (supra párr. 92).

99. En este sentido, la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir el 11 de diciembre de 2002 (supra párr. 69.49) la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 y absolvió a la presunta víctima de culpa y pena, se refirió al carácter y relevancia de las declaraciones de ésta, al señalar, inter alia, que [l]as afirmaciones del Ing. Nombre159, -en el marco político de una campaña electoral a la primera magistratura-, necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público. Nada más importante y público que la discusión y posterior elección popular del Primer Magistrado de la República.

100. Las anteriores consideraciones no significan, de modo alguno, que el honor de los funcionarios públicos o de las personas públicas no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático. Asimismo, la protección de la reputación de particulares que se encuentran inmiscuidos en actividades de interés público también se deberá realizar de conformidad con los principios del pluralismo democrático. (…)

103. Es así que tratándose de funcionarios públicos, de personas que ejercen funciones de una naturaleza pública y de políticos, se debe aplicar un umbral diferente de protección, el cual no se asienta en la calidad del sujeto, sino en el carácter de interés público que conllevan las actividades o actuaciones de una persona determinada. Aquellas personas que influyen en cuestiones de interés público se han expuesto voluntariamente a un escrutinio público más exigente y, consecuentemente, en ese ámbito se ven sometidos a un mayor riesgo de sufrir críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. En este sentido, en el marco del debate público, el margen de aceptación y tolerancia a las críticas por parte del propio Estado, de los funcionarios públicos, de los políticos e inclusive de los particulares que desarrollan actividades sometidas al escrutinio público debe ser mucho mayor que el de los particulares.

En esta hipótesis se encuentran los directivos de la empresa CONEMPA, consorcio al cual le fue encargada la ejecución de gran parte de las obras de construcción de la central hidroeléctrica de Itaipú 104. Con base en las anteriores consideraciones, corresponde al Tribunal determinar si, en este caso, la aplicación de responsabilidades penales ulteriores respecto del supuesto ejercicio abusivo del derecho a la libertad de pensamiento y de expresión a través de declaraciones relativas a asuntos de interés público, puede considerarse que cumple con el requisito de necesariedad en una sociedad democrática. Al respecto, es preciso recordar que el Derecho Penal es el medio más restrictivo y severo para establecer responsabilidades respecto de una conducta ilícita.

105. El Tribunal estima que en el proceso seguido contra el señor Nombre159 los órganos judiciales debieron tomar en consideración que aquel rindió sus declaraciones en el contexto de una campaña electoral a la Presidencia Nombre01 y respecto de asuntos de interés público, circunstancia en la cual las opiniones y críticas se emiten de una manera más abierta, intensa y dinámica acorde con los principios del pluralismo democrático. En el presente caso, el juzgador debía ponderar el respeto a los derechos o a la reputación de los demás con el valor que tiene en una sociedad democrática el debate abierto sobre temas de interés o preocupación pública.

106. El proceso penal, la consecuente condena impuesta al señor Nombre159 durante más de ocho años y la restricción para salir del país aplicada durante ocho años y casi cuatro meses, hechos que sustentan el presente caso, constituyeron una sanción innecesaria y excesiva por las declaraciones que emitió la presunta víctima en el marco de la campaña electoral, respecto de otro candidato a la Presidencia Nombre01 y sobre asuntos de interés público; así como también limitaron el debate abierto sobre temas de interés o preocupación pública y restringieron el ejercicio de la libertad de pensamiento y de expresión del señor Nombre159 de emitir sus opiniones durante el resto de la campaña electoral. De acuerdo con las circunstancias del presente caso, no existía un interés social imperativo que justificara la sanción penal, pues se limitó desproporcionadamente la libertad de pensamiento y de expresión de la presunta víctima sin tomar en consideración que sus declaraciones se referían a cuestiones de interés público. Lo anterior constituyó una restricción o limitación excesiva en una sociedad democrática al derecho a la libertad de pensamiento y de expresión del señor Nombre67, incompatible con el artículo 13 de la Convención Americana.

107. Asimismo, el Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Nombre159 durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Nombre159. Al respecto, después de ser condenado penalmente, el señor Nombre159 fue despedido del medio de comunicación en el cual trabajaba y durante un período no publicó sus artículos en ningún otro diario.

108. Por todo lo expuesto, la Corte considera que el Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Nombre67, dado que las restricciones al ejercicio de este derecho impuestas a éste durante aproximadamente ocho años excedieron el marco contenido en dicho artículo (…)”.(El destacado no forma parte del original).

Igualmente, de sumo y gran interés resulta el caso Nombre162 y otros (Radio Caracas Televisión) vs. Venezuela (sentencia de 22 de junio de 2015). En este asunto, la Corte IDH tuvo por probada la existencia de un ambiente conflictivo y de tensión en Venezuela, producto del golpe de Estado sufrido, el cual, a su vez, originó una polarización política (radicalización de las posturas de los sectores involucrados) y coadyuvó a que el gobierno acusara a los medios de comunicación privados, entre ellos a RCTV (Radio Caracas Televisión), de ser enemigos del gobierno, golpistas y fascistas. La Corte tuvo por demostrado también que el Estado de Venezuela buscó la forma de silenciar a dicho medio de comunicación (habida cuenta que expresaba ideas diferentes a las políticas de gobierno manteniendo una línea crítica a la Presidencia de Nombre73), a través de la no renovación, en el año 2007, de la concesión de uso del espectro radioeléctrico (la cual poseía desde su fundación en el año 1953), lo cual, evidentemente, coartó a este, de forma indirecta o velada, la posibilidad de continuar funcionando y continuar difundiendo información disidente, en clara violación a la libertad de expresión.

En esta sentencia, de forma relevante, la Corte IDH sostuvo que dicha decisión fue precedida por diversas declaraciones públicas emitidas, tanto por el Nombre138 Nombre01 como por otros funcionarios, quienes generaron un ambiente de intimidación. Particularmente, se indicó que el entonces Nombre138 Nombre163, realizó, entre otras, las siguientes manifestaciones:

“(…) 75. (…) a) la declaración del Nombre138 Nombre163 de 9 de junio de 2002 en su Programa “Aló Presidente”, en la que afirmó: “las televisoras y las radios, las emisoras, aún cuando sean privadas sólo hacen uso de una concesión, el Estado es el dueño [...], y el Estado le da permiso a un grupo de empresarios que así lo piden para que operen, para que lancen la imagen por esa tubería, pero el Estado se reserva el permiso. Es como si alguien quisiera utilizar una tubería de aguas para surtir agua a un pueblo que sea del Estado, y el Estado le da el permiso. [...] Suponte tú que […] le demos el permiso para que use la tubería de agua [y] comience a envenenar el agua. […] [Hay que] inmediatamente no sólo quitarle el permiso, meterlo preso. Está envenenando a la gente, eso pasa, igualito es el caso [y] la misma lógica, la misma explicación con un canal de televisión”; b) la declaración del Nombre138 Nombre163 de 12 de enero de 2003 en su programa “Aló Presidente”, en la que expresó: “Igual pasa con estos dueños de canales de televisión y los dueños de las emisoras de radio; ellos también tienen una concesión del Estado, pero no les pertenece la señal.

La señal le pertenece al Estado. Eso quiero dejarlo bien claro, quiero dejarlo bien claro porque si los dueños de estas televisoras y emisoras de radio continúan en su empeño irracional por desestabilizar nuestro país, por tratar de darle pie a la subversión, porque es subversión, sin duda, […] es subversión en este caso fascista y es alentada por los medios de comunicación, por estos señores que he mencionado y otros más que no voy a mencionar. Así lo adelanto a Venezuela. He ordenado revisar todo el procedimiento jurídico a través de los cuales se les dio la concesión a estos señores. La estamos revisando y si ellos no recuperan la normalidad en la utilización de la concesión, si ellos siguen utilizando la concesión para tratar de quebrar el país, o derrocar el gobierno, pues yo estaría en la obligación de revocarles la concesión que se les ha dado para que operen los canales de televisión”; c) la declaración del Nombre138 Nombre163 de 9 de noviembre de 2003 en su programa “Aló Presidente”, a través de la cual manifestó: “no voy a permitir que ustedes lo hagan de nuevo, […] ustedes: Globovisión, Televén, Venevisión y RCTV Nombre142 o pasado Nombre142 [Ministro] Nombre74, le di una orden, usted debe tener un equipo de analistas y de observadores 24 horas al día mirando todos los canales simultáneamente y debemos tener claro, yo lo tengo claro, cual es la raya de la cual ellos no deben pasarse, y ellos deben saber, es la raya de la ley pues.

En el momento en que pasen la raya de la ley serán cerrados indefectiblemente para asegurarle la paz a Venezuela, para asegurarle a Venezuela la tranquilidad”, y d) el 9 de mayo de 2004, el Nombre138 Nombre163 declaró en su programa “Aló Presidente”: [a]quí los que violan el derecho a la información, el derecho a la libertad de expresión, son los dueños de los medios de comunicación privados, son algunas excepciones, pero sobretodo los grandes canales de televisión Venevisión, Globovisión, RCTV […] los dueños de estos medios de comunicación están comprometidos con el golpismo, el terrorismo y la desestabilización, y yo pudiera decir a estas alturas no me queda ninguna duda, que los dueños de esos medios de comunicación nosotros bien podemos declararlos enemigos del pueblo de Venezuela (…)

80. (…) a) la declaración del Nombre138 Nombre163 de 28 de diciembre de 2006, por ocasión de su saludo de fin de año a las Fuerzas Armadas, en la cual expresó: “Hay un señor por ahí de esos representantes de la oligarquía, que quería ser Nombre138 de la oligarquía, y que luego esos Gobiernos adecos-copeyanos le dieron concesiones para tener un canal de televisión y él ahora anda diciendo que esa concesión es eterna, se le acaba en marzo la concesión de televisión, se le acaba en marzo, así que mejor que vaya preparando sus maletas y vaya viendo a ver qué va a hacer a partir de marzo, no habrá nueva concesión para ese canal golpista de televisión que se llamó Radio Caracas Televisión, se acaba la concesión, ya está redactada la medida, así que vayan preparándose, apagando los equipos pues, no se va tolerar aquí ningún medio de comunicación que esté al servicio del golpismo, contra el pueblo, contra la nación, contra la independencia nacional, contra la dignidad de la República, Venezuela se respeta, lo anuncio antes que llegue la fecha para, para que no sigan ellos con su cuentito de que no que son 20 años más, 20 años más yo te aviso chirulí, 20 años más si es bueno, se te acabo, se te acabo (…)

• d)el 8 de enero de 2007, en el acto de nombramiento de un nuevo gabinete ministerial, el Nombre138 Nombre163 se pronunció una vez más con respecto a la concesión de RCTV al indicar que: “Nada ni nadie impedirá que se cumpla la decisión de no renovarle la concesión a ese canal de televisión, que todos saben cuál es. Nada ni nadie podrá evitarlo (…)”.

Asimismo, en esta oportunidad y, conforme los siguientes términos, la Corte explicó cómo, en este caso en particular, se dio una violación al artículo 13.3 de la Convención Americana sobre Derechos Humanos:

“(…) 148. Al respecto, la Corte ha señalado anteriormente que los medios de comunicación son verdaderos instrumentos de la libertad de expresión, que sirven para materializar este derecho y que juegan un papel esencial como vehículos para el ejercicio de la dimensión social de esta libertad en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, este Tribunal coincide con la Comisión respecto a que los medios de comunicación son, generalmente, asociaciones de personas que se han reunido para ejercer de manera sostenida su libertad de expresión, por lo que es inusual en la actualidad que un medio de comunicación no esté a Nombre141 de una persona jurídica, toda vez que la producción y distribución del bien informativo requieren de una estructura organizativa y financiera que responda a las exigencias de la demanda informativa. De manera semejante, así como los sindicatos constituyen instrumentos para el ejercicio del derecho de asociación de los trabajadores y los partidos políticos son vehículos para el ejercicio de los derechos políticos de los ciudadanos, los medios de comunicación son mecanismos que sirven al ejercicio del derecho a la libertad de expresión de quienes los utilizan como medio de difusión de sus ideas o informaciones. (…)

151. En consecuencia, la Corte Interamericana considera que las restricciones a la libertad de expresión frecuentemente se materializan a través de acciones estatales o de particulares que afectan, no solo a la persona jurídica que constituye un medio de comunicación, sino también a la pluralidad de personas naturales, tales como sus accionistas o los periodistas que allí trabajan, que realizan actos de comunicación a través de la misma y cuyos derechos también pueden verse vulnerados (…)

152. Al respecto, debe advertirse que hoy en día una parte importante del periodismo se ejerce a través de personas jurídicas y se reitera que es fundamental que los periodistas que laboran en estos medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos los que mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad. En especial, teniendo en cuenta que su actividad es la manifestación primaria de la libertad de expresión del pensamiento y se encuentra garantizada específicamente por la Convención Americana (…)

1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. En el presente caso se ha argumentado que se estaría frente a una posible restricción indirecta al derecho a la libertad de expresión, razón por la cual la Corte resalta que el artículo 13.3 de la Convención hace referencia expresa a tal situación al señalar que “[n]o se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.

162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.

163 Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas (…)

Igualmente, el perito Nombre75 durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación.

164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. (…)

170. (…) Este Tribunal estima que, dado que el espacio radioeléctrico es un bien escaso, con un número determinado de frecuencias, esto limita el número de medios que pueden acceder a ellas, por lo que es necesario asegurar que en ese número de medios se halle representada una diversidad de visiones o posturas informativas o de opinión. La Corte resalta que el pluralismo de ideas en los medios no se puede medir a partir de la cantidad de medios de comunicación, sino de que las ideas y la información transmitidas sean efectivamente diversas y estén abordadas desde posturas divergentes sin que exista una única visión o postura. Lo anterior debe tenerse en cuenta en los procesos de otorgamiento, renovación de concesiones o licencias de radiodifusión. En este sentido, el Tribunal considera que los límites o restricciones que se deriven de la normatividad relacionada con la radiodifusión deben tener en cuenta la garantía del pluralismo de medios dada su importancia para el funcionamiento de una sociedad democrática (…)

3. Alegada restricción indirecta a la libertad de expresión establecida en el artículo 13.3 de la Convención Americana (…)

193. Ahora bien, para efectuar un análisis del recuento de declaraciones reseñado anteriormente es imperioso realizar una lectura conjunta de las declaraciones y señalamientos, por cuanto de manera aislada no podrían configurar autónomamente hechos constitutivos de una vulneración a la Convención Americana. Esto debido a que el hecho de que varios funcionarios hayan realizado declaraciones en el mismo sentido durante un mismo lapso, demuestra que no fueron declaraciones aisladas. Teniendo en cuenta lo anterior, la Corte procederá a efectuar una valoración de lo allí expuesto con el fin de determinar si existieron razones o motivos por los cuales se arribó a dicha decisión distintos a la finalidad declarada, por cuanto, como ya lo señaló, tener en cuenta el motivo o propósito es relevante para el análisis jurídico de un caso, en especial si se busca determinar si se configuró una actuación arbitraria o una desviación de poder (supra párr. 189).

En primer lugar, la Corte resalta que desde el año 2002 se venía advirtiendo que a los canales de televisión que no modificaran su línea editorial no se les renovaría su concesión (supra párr. 75) y que este tipo de declaraciones se acrecentaron cuando se acercó la fecha del vencimiento de las concesiones (supra párrs. 76 a 78). A partir de 2006, en varias de dichas declaraciones que fueron anteriores a la Comunicación Nº 0424 y la Resolución Nº 002 se anunció que la decisión de no renovar la concesión a RCTV ya se encontraba tomada y no sería revaluada o modificada (supra párr. 79 a 86). Asimismo, vale la pena resaltar que no solamente fueron declaraciones de funcionarios estatales en diversos medios de comunicación, sino que además se hicieron publicaciones en diarios nacionales y hasta la divulgación de un libro con el fin de anunciar y justificar la decisión de no renovar la concesión de RCTV.

Por lo anterior, el Tribunal puede concluir, en primer lugar, que la decisión fue tomada con bastante anterioridad a la finalización del término de la concesión y que la orden fue dada a CONATEL y al Ministerio para la Telecomunicación desde el ejecutivo.

194. Respecto a las verdaderas razones que habrían motivado la decisión, en las declaraciones y las publicaciones hechas por distintos miembros del gobierno venezolano estas son: i) la no modificación de la línea editorial por parte de RCTV después del golpe de estado de 2002 a pesar de las advertencias realizadas desde ese año, y ii) las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones. Sobre la primera razón esgrimida, la Corte considera imperioso manifestar que no es posible realizar una restricción al derecho a la libertad de expresión con base en la discrepancia política que pueda generar una determinada línea editorial a un gobierno. Como fue señalado anteriormente, el derecho a la libertad de expresión no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino especialmente en lo que toca a las que resultan ingratas para el Estado o cualquier sector de la población (supra párr. 140).

Con relación a las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones, el Tribunal resalta que resulta contradictorio que se hicieran señalamientos y acusaciones sobre las alegadas sanciones y que en la comunicación Nº 0424 se indicara expresamente que estas no eran la justificación de la decisión. En especial, la Corte resalta que a pesar de la gravedad de los hechos relacionados con el golpe de Estado no se probó ante este Tribunal que a nivel interno se hubieran adoptado procedimientos tendientes a sancionar dichas actuaciones irregulares, de forma que no es posible que se utilizara como argumento para fundamentar la decisión lo sucedido durante el golpe, cuando dichas actuaciones no fueron sancionadas en su momento.

195. En este punto, el Tribunal considera necesario reiterar el precedente establecido en otro caso relacionado con este mismo medio de comunicación, según el cual en una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento.

Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.

196. Asimismo, el Tribunal denota que de las declaraciones aportadas en el presente caso contencioso sólo una habría hecho mención a la finalidad declarada en la Comunicación Nº 0424 y la Resolución Nº 002, es decir, la protección a la pluralidad de medios, mientras que en su mayoría las restantes declaraciones coinciden en invocar las otras declaraciones. Lo anterior, le permite concluir a la Corte, en segundo lugar, que la finalidad declarada no era la real y que sólo se dio con el objetivo de dar una apariencia de legalidad a las decisiones.

4. Conclusión sobre el derecho a la libertad de expresión.

197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).

198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger.

199. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Nombre76, Nombre77, Nombre78, Nombre79, Nombre80, Nombre81, Nombre82, Nombre83, Nombre84, Nombre85 y Nombre86. (…)”. (El destacado no forma parte del original).

Este Tribunal Constitucional, por su parte, también ha tenido la oportunidad de condenar este tipo de actuaciones. En la Sentencia No. 1782-2015 de las 11:36 hrs. de 6 de febrero de 2015, esta jurisdicción constitucional conoció un recurso de amparo formulado por un productor de un programa radial de crítica, opinión y denuncia, donde, a su vez, se estaba denunciando e investigando aparentes actos de corrupción llevados a cabo por un diputado. El recurrente acusó en tal ocasión que el referido diputado envió cartas membretadas y selladas con su firma de la Asamblea Legislativa a las instituciones que pautaban publicidad y que hacían posible la existencia del referido programa, amenazándolas de demandarlas si no retiraban dicha publicidad de manera inmediata, habida cuenta que lo consideraba una campaña de desprestigio en su contra. Luego de analizarse el citado caso, esta Sala, en dicha oportunidad, sostuvo que las notas enviadas por dicho diputado a diversas instituciones públicas con el fin que se retirara la publicidad del programa de radio del recurrente (la cual además, se constituía en el principal soporte financiero que permitía la trasmisión de los programas radiales y, a su vez, el sustento económico de las personas que trabajan en dicho programa), constituía una censura indirecta o velada a la libertad de expresión. Lo anterior, conforme los siguientes términos:

“(…) Ahora bien, en la especie, el recurrido dirigió una misiva a varias instituciones públicas, usando papel con el membrete y el sello de la Asamblea Legislativa, en la cual manifestaba:

“(…) 4.- En mi caso particular, en claro derecho de tutelar mi integridad personal, profesional y moral, fundamentaré la querella contra el productor de ese especio radial y solidariamente contra sus patrocinadores, pues basta con que ustedes monitoreen puntualmente a las 8 pm la frecuencia 800 AM y escuchen, dentro de la misma parrilla de patrocinadores a la que esta institución pertenece como auspiciador del programa en cuestión, junto a la cuña que ustedes pagan con dinero público, otra cuña grabada con la voz del propio señor [Nombre141 001] en la que le pregunta a los ciudadanos si le creen a un Diputado mentiroso, investigado por falsificador y estafador, aspirante a graduarse de abogado en forma irregular, denunciado por el TSE por querer sustraer millonarias sumas de dinero mediante el uso de documentos falsos y más señalamientos infundados, aprovechando el productor radial al amparo de sus patrocinadores, para presionar de forma temeraria al Señor Fiscal General a que actúe contra el suscrito, evitando así la impunidad, como si el Jefe del Ministerio Público estuviese encubriendo deliberadamente una serie de delitos cometidos por este servidor.

1. 5Por la consideración que se merecen, respetuosamente les prevengo de este asunto y les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar, con el propósito de no empañar judicialmente ni perjudicar la sana imagen que los costarricenses tienen de esta noble institución, la cual debe ser protegida y no debería verse inmiscuida en asuntos tan deplorables y ajenos al honroso quehacer de ustedes, con lo que mis abogados desestimarían de inmediato a petición del suscrito, la eventual demanda solidaria extensiva contra esta entidad pública. (…)” (Extracto de la nota dirigida a Correos de Costa Rica S.A., aportada por el recurrente; lo destacado no corresponde al original).

La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.

Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal. En el caso Nombre66, la Corte Interamericana se pronunció en cuanto a las amenazas económicas a la libertad de expresión:

“129. Finalmente, si bien la sanción penal de días-multa no aparece como excesiva, la condena penal impuesta como forma de responsabilidad ulterior establecida en el presente caso es innecesaria. Adicionalmente, los hechos bajo el examen del Tribunal evidencian que el temor a la sanción civil, ante la pretensión del ex Procurador de una reparación civil sumamente elevada, puede ser a todas luces tan o más intimidante e inhibidor para el ejercicio de la libertad de expresión que una sanción penal, en tanto tiene la potencialidad de comprometer la vida personal y familiar de quien denuncia a un funcionario público, con el resultado evidente y disvalioso de autocensura, tanto para el afectado como para otros potenciales críticos de la actuación de un servidor público”.

En segundo lugar, un diputado Nombre01 no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido.

Si las demás entidades a las que el recurrido dirigió su oficio, hubieran actuado de igual manera, eso hubiera derivado en una grave afectación a la estabilidad financiera del citado programa radial, todo ello teniendo como génesis la inconformidad de un funcionario público con las críticas difundidas en el mismo.

Lo anterior no implica que sea de poca importancia la alegada violación al honor del recurrido y de quienes podrían ser eventualmente responsables por ello. Todo lo contrario, lo reclamado por el recurrido es tan relevante que el ordenamiento jurídico ha establecido vías procesales apropiadas y razonables tanto para defender el honor de la persona afectada (por ejemplo a través de un proceso penal), como para velar por la exactitud de la información divulgada (derecho de rectificación y respuesta).

Ahora bien, las notas aclaratorias enviadas por el accionado en octubre pasado a las instituciones públicas, no afectan el razonamiento de esta Sala. Por un lado, son actuaciones ocurridas con posterioridad a la notificación del curso de este proceso –las notas fueron entregadas a dichas instituciones los días 7 y 8 de octubre de 2014; mientras que la notificación acaeció el 6 de octubre de 2014-. Por el otro, la Sala observa que, si bien se aclaró mediante tales notas que la “…anterior carta enviada al respecto de este asunto, no buscaba imponerles necesariamente la obligación de tener que retirar su publicidad de ese programa…”, también se indicó un apercibimiento a las instituciones motivado nuevamente en las críticas hechas al recurrido:

“5.- No omito señalarles respetuosamente su deber de cuidado, entendido en ejercer un mayor control de los recursos que en materia de propaganda, publicidad o información ustedes disponen pautar en medios de comunicación, manteniendo al menos un monitoreo mínimo que les permita conocer como en el caso del CD que les aporto [el cual contiene una edición del programa “Rompiendo El Silencio”], la calidad de manifestaciones proferidas en los espacios en los que ustedes pautan.” (Extracto de la nota dirigida al Instituto Nacional de Aprendizaje, aportada por el recurrido).

Por último, debe acotarse que los funcionarios públicos sí pueden manifestarse en torno a temas de interés público. Sin embargo, ellos son garantes de los derechos fundamentales, de manera que las expresiones que pronuncien deben evitar tornarse en una forma de censura directa o indirecta. Nuevamente, se cita a la Corte Interamericana de Derechos Humanos:

“139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento.

Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.” (Caso Nombre164 y otros) En conclusión, la Sala estima el recurrido tiene todo el derecho a defender su honor y reputación por medio de los mecanismos legales que prevé la Constitución y la ley, entre ellos, el derecho de rectificación y respuesta y la querella por los delitos de injurias calumnias y difamación regulada en el Código Penal. En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”.

En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo (…)”. (El destacado no forma parte del original).

El año siguiente, sea, durante el 2016, la Sala Constitucional conoció otro recurso de amparo donde se hizo alusión a una forma distinta e indirecta de atentar contra la libertad de expresión, el cual, a su vez, fue resuelto mediante el Voto No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016. En esta ocasión, el recurrente, en su condición de director de un período de circulación nacional, alegó que, en virtud de una serie de noticias publicadas respecto a varias actuaciones irregulares llevadas a cabo por una entidad bancaria, los directivos de esta última decidieron manipular, presionar y tratar de callar al medio de comunicación a través de la reducción paulatina de la pauta publicitaria en las páginas del diario. Una vez analizadas y estudiadas las argumentaciones vertidas por ambas partes, así como la prueba aportada, este órgano constitucional tuvo por acreditado que el citado medio de comunicación fue efectivamente objeto de una censura velada o indirecta por parte de un funcionario público “(…) como reacción a su línea editorial, con el único propósito de "motivar" un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos.

Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…)”. Además, esta jurisdicción, en aquella ocasión, enfatizó en el hecho que la publicidad se consideraba el soporte financiero fundamental en el esquema de funcionamiento de los medios de comunicación, de manera tal que esta era la que permitía la publicación o difusión de su contenido y, por ende, también el sustento de las personas que trabajan en este. De modo expreso, esta Sala, en la mencionada sentencia, expuso lo siguiente:

“(…) VII.- Conviene profundizar en este tema de la censura previa, a fin de dar solución al caso examinado, siguiendo la línea ya establecida en la sentencia 2015-1782. Al respecto, el inciso tercero del artículo 13 de la Convención Americana señala con claridad:

“ 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” Valga mencionar el caso Nombre65 a manera de ejemplo, en el cual la Corte Interamericana estimó que una resolución para dejar sin efecto legal el título de nacionalidad del señor Nombre65 –entre otros hechos- constituía un medio indirecto de restringir su libertad de expresión.

También, dentro del derecho comparado, resulta de interés el fallo "Editorial Río Negro contra Provincia de Neuquén" (5/09/07), en el que la Corte Suprema de Justicia de la Nación (Argentina) dispuso, a raíz de que el Poder Ejecutivo de la Provincia del Neuquén privó temporalmente de publicidad oficial a dicho medio sin demostrar la razonabilidad de tal medida, y además se pronunció en contra de la violación indirecta de la libertad de prensa por medios económicos: "La primera opción para un Estado es dar o no publicidad, y esa decisión permanece dentro del ámbito de la discrecionalidad estatal. Si decide darla, debe hacerlo cumpliendo dos criterios constitucionales: 1) no puede manipular la publicidad, dándola y retirándola a algunos medios en base a criterios discriminatorios; 2) no puede utilizar la publicidad como un modo indirecto de afectar la libertad de expresión. Por ello, tiene a su disposición muchos criterios distributivos, pero cualquiera sea el que utilice deben mantener siempre una pauta mínima general para evitar desnaturalizaciones."

VIII.Ahora bien, es de suma importancia para el caso concreto indicar que la publicidad provee un soporte financiero fundamental en el actual esquema de funcionamiento de los medios de comunicación colectiva, pues permite la publicación o difusión de su contenido y a la postre, el sustento económico de las personas que trabajan en dicho medio. Es evidente que si se limita el ingreso económico de un medio de comunicación (en este caso escrito), también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. (…)

Debe, sin embargo, hacerse una precisión para adaptar lo dicho a las particularidades de este caso. El Gerente del Banco recurrido expone que resultaría incorrecto que la Sala venga a señalar la manera en que debe conducirse un aspecto vital para el negocio comercial que opera el Banco, cual es la publicidad, y en este punto le asiste la razón. La Sala entiende que debe tomarse en cuenta la condición jurídica del Banco Nacional de Costa Rica, dentro del entramado administrativo estatal, pues se trata de una institución con autonomía constitucionalmente reconocida y a la cual se ha encargado de llevar a cabo una actividad incuestionablemente comercial y, además de ello, en régimen de competencia con entidades privadas. En esa dinámica, la publicidad comercial que puedan realizar las empresas estatales responde y debe responder claramente a decisiones y valoraciones técnicas y objetivas y sobre tales aspectos no cabe la injerencia de un órgano de protección de Derechos Fundamentales como esta Sala.- No es allí donde se origina el conflicto constitucional y de Derechos Humanos que aquí se analiza, como lo demuestra la posición general expresada en el informe del año 2012 de Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos titulado “Principios sobre la regulación de la publicidad oficial y libertad de expresión”.

En dicho documento se deja bien establecida la necesidad de que las distintas instituciones estatales cuenten con planes técnica y objetivamente diseñados para sus finalidades de comunicación y ello se repite en expediente legislativo de la investigación, donde las Diputadas y Diputados y el propio recurrente dejan afirmado que la particular condición de las empresas públicas debe tenerse en cuenta y respetarse las decisiones técnicas y objetivas sobre publicidad. Al respecto, de manera precisa señala el propio recurrente que:

“el criterio para distribuir la pauta publicitaria debe ser criterios de mercado, deben ser planes de medios diseñados por profesionales en la materia y se debe invertir el dinero que haga falta para cumplir ese plan de medios, de manera que lo que la empresa estatal que compite en el mercado quiere comunicar, sea eficientemente comunicado.” (p. 18-36 del Expediente Legislativo 20066) El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales.- Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo.

IX- El caso concreto.- El amparado manifiesta que el recurrido ha hecho uso de sus influencias y funciones como Gerente General del Banco Nacional de Costa Rica para intentar presionar al Diario La Nación a modificar publicaciones y reportajes efectuados; afirma que esa presión se concretó en la reducción paulatina de la pauta publicitaria y en su virtual reducción a cero en los últimos meses. De los hechos probados y del considerando sobre análisis de prueba, la Sala tiene por demostradas, tanto la realidad de la reducción de la pauta del Banco Nacional al Periódico la Nación, a partir de la publicación hecha a finales de febrero, y en particular durante los meses de junio y julio, como las razones que motivaron la misma.- En este último sentido, según se indicó supra, son suficientemente claras las declaraciones del propio funcionario recurrido, emitidas ante los diversos órganos que inquieron sobre su actuación.- En todas ellas el funcionario expresó la existencia de una disconformidad con la forma en que el medio de comunicación reportó durante los meses de febrero, marzo, abril y mayo de 2016, sobre temas referentes a la entidad bancaria accionada en relación con el caso de la empresa LATCO; actuaciones de la Junta Directiva del banco, así como la participación del BNCR, en el caso BICSA.

Según narra el recurrente y confirma el Gerente recurrido, la insatisfacción alcanzó su cima con este último caso, al entenderse que el periódico estaba dejando de lado las respuestas del Banco y omitiendo información importante, todo lo cual podría redundar (como efecto ocurrió) en fuertes erogaciones económicas del Banco para mantener niveles mínimos de confianza en su situación. Es por dicho caso y sus supuestas graves consecuencias para el Banco, que el Gerente recurrido dispuso publicar, el 13 de mayo de 2016, un campo pagado en otros dos medios escritos nacionales, a fin de responder a las citadas publicaciones de La Nación y dar a conocer lo que en su criterio era la situación real en torno al caso BICSA. Con esto último la situación derivó para peor, sumando al conflicto, enconados editoriales del medio de comunicación y respuestas del Banco en el mismo tono. Es en este punto que el Gerente decidió “tener una conversación” con los personeros del medio de comunicación, a raíz de lo cual, dispuso, concomitantemente y mientras tanto, una pausa que denominó "impasse" en la pauta publicitaria al periódico la Nación; esa pausa concluye, (según sus propias palabras) luego de que es atendido por el Director del medio de comunicación.

Estos hechos narrados se repiten con consistencia tanto en el escrito del recurrente como en todas las versiones que brindó el propio recurrido ante la Junta Directiva del Banco, ante la Comisión Legislativa que investigó el caso y ante la Sala en el informe rendido y sobre todo consta claramente en el audio aportado por el recurrente.- Dicho lo anterior, la valoración de tales hechos, frente al marco constitucional de la libertad de expresión y el derecho a la información, por parte de este Tribunal no puede ser positiva para el recurrido. Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa.

El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostíl a las libertades de expresión e información esenciales en un sistema democrático. Lo anterior, en tanto proviene de un servidor público, resulta totalmente inadmisible frente al necesario respeto y apego a lo que una Diputada apropiadamente definió como “la lógica democrática” a cuya realización deben contribuir las instancias, incluyendo por supuesto las empresas públicas.- (p. 383 del Expendiente Legislativo 20.066) Ella impone la plasmación más amplia posible de la libertad de expresión y el derecho a la información, sin que esto signifique la renuncia a emplear los medios jurídicamente establecidos para combatir las noticias u opiniones que puedan afectar injustamente la labor de las instituciones.

X.En efecto, si a juicio del recurrido, el medio de comunicación debía darle el debido derecho de respuesta en los momentos en que solicitó reunirse con los representantes de la empresa en razón de la relevancia de lo publicado, podía y puede presentar las acciones judiciales que considere pertinentes, con el fin de que se determine la eventual afectación de su honor, o de perjuicio a la entidad bancaria que representa y la posible responsabilidad de aquellos que hayan excedido los límites de la libertad de expresión. Además, tenía la opción recogida en el ordenamiento jurídico de acudir al proceso de rectificación o respuesta, en favor de las personas que se vean afectadas por informaciones inexactas o agraviantes emitidas en su perjuicio (artículos 14 de la Convención Americana y 66 y siguientes de la Ley de la Jurisdicción Constitucional). No obstante, el recurrido optó primero por la publicación de notas aclaratorias en campos pagados a otros medios de comunicación escrito y no lo hizo así con el Diario La Nación.

Con ello dejó de lado el mecanismo formal de rectificación y respuesta ante el Diario La Nación, o algún otro medio de prensa del Grupo Nación, y lo hizo de manera absolutamente deliberada, según lo expresa ante la Comisión que “…(…) alguno de Ustedes, conversaba de que porqué no acudía a la vía judicial. ¿Voy a ir a poner un recurso a la Sala Cuarta para decirles que me den un derecho de respuesta? Estuviéramos en el proceso de admisión todavía.” (p. 383 Expediente Legislativo 20.066). Se trata de desafortunadas consideraciones, no solo porque no responden a la verdadera realidad del proceso de rectificación y respuesta, -el cual contrario a lo que afirma, tiene un proceso de admisión muy expedito-, sino porque con ellas se pretende además justificar la realización de vías de hecho o actos de presión por encima de las vías del derecho, para lograr una modificación en contenido de los reportajes del periódico.- Sobre este tema, cabe recalcar, tal y como se mencionó, que tales intentos de censura, directa o indirecta, no encuentran cabida en nuestro medio, ni en el estado constitucional de derecho.

XI.Conclusión.-Así las cosas, esta Sala comprueba un acto de censura indirecta ejecutado por un servidor estatal, con el fin de limitar la libertad de información que debe disfrutar el medio de comunicación amparado, mediante una disminución de la pauta publicitaria, sin razones técnicas u objetivas y más bien con la clara intención de incidir en el contenido informativo del medio de prensa en relación con sus reportajes referentes al Banco Nacional de Costa Rica y sus subsidiarias.

En el caso se comprueba lo que claramente la doctrina ha denominado censura indirecta, una forma de acoso ilegítimo de un medio de comunicación de parte de un ente público, que no sólo lesiona la libertad de expresión según se dijo líneas atrás, sino el derecho de los ciudadanos de contar con mecanismos de información veraz en la democracia. Es una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente. Sobre este tema la Comisión de Derechos Humanos y la doctrina más autorizada han sido enfáticas en señalar que “no se puede restringir el derecho de expresión tampoco por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.

Los mecanismos de censura directa o “indirecta” están claramente prohibidos por el artículo 13.3 de la Convención Americana fueron objeto de atención por parte de distintos órganos del sistema interamericano. Interpretando el artículo 13.3 citado, la Declaración de Principios sobre Libertad de Expresión aprobada por la Comisión Interamericana de Derechos Humanos (en adelante, “CIDH”), establece en su principio 5 que “[l]a censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”. Y en su principio 13 indica que “la utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar, o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atentan contra la libertad de expresión y deben estar expresamente prohibidos por la ley”.

Por su parte la Corte Interamericana ha señalado que “todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención, son ilegítimos.

Es reconocido ampliamente en la doctrina, que la censura indirecta normalmente se ocultan detrás de acciones aparentemente legítimas que, sin embargo, son adelantadas con el propósito de condicionar el ejercicio de la libertad de expresión de los individuos. Cuando eso sucede, se configura una violación del artículo 13.3 de la Convención. Como lo ha sostenido la Corte Interamericana de Derechos Humanos (en adelante, la “Corte Interamericana” o “Corte”), resulta violatorio de la libertad de expresión”. (Corte I.D.H. La Colegiación obligatoria de periodistas (Arts. 13 y 29 Convención Americana sobre Derechos Humanos). Opinión Consultiva OC-5/85 del 13 de noviembre de 1985, Serie A No. 5, párr. 55.)

Estos mecanismos de restricción fueron también objeto de análisis por parte de la Relatoría Especial para la Libertad de Expresión de la CIDH, que en su Informe Anual 2003 llamó la atención sobre estas “obstrucciones oscuras, impuestas silenciosamente [que] no dan lugar a investigaciones ni merecen una censura generalizada”. La cuestión también fue abordada por esta oficina en sus Informes de 2008 y 2009.

La jurisprudencia de la Corte Interamericana por su parte, ha condenado en distintas ocasiones la adopción de medidas estatales que constituyen medios indirectos de restricción de la libertad de expresión. Así, por ejemplo, ha condenado la exigencia de la colegiatura obligatoria de periodistas, el uso arbitrario de las facultades de regulación del Estado cuando éste ha sido utilizado para iniciar acciones intimidatorias contra las directivas de un medio de comunicación, o para revocar la nacionalidad del director de un medio como consecuencia de la línea editorial de los programas que transmite (Caso Nombre65 vs Perú).

Los relatores para la libertad de expresión de la ONU, la OEA y la OSCE también han abordado el tema de las restricciones indirectas a la libertad de expresión por parte de las autoridades. Por ejemplo, en su Declaración Conjunta de 2002 afirmaron que, “los gobiernos y los órganos públicos nunca deben abusar de su custodia de las finanzas públicas para tratar de influir en el contenido de la información de los medios de prensa; el anuncio de publicidad debe basarse en razones de mercado”.

El uso arbitrario de la publicidad oficial fue uno de los primeros mecanismos de censura indirecta abordados por el sistema interamericano. En efecto, la Relatoría Especial para la Libertad de Expresión en su Informe Anual 2003 dedicó un capítulo especial a estudiar el fenómeno y concluyó que “la obstrucción indirecta a través de la publicidad estatal actúa como un fuerte disuasivo de la libertad de expresión” (CIDH Informe Anual OEA/Ser. L/VI.118. Doc 70, diciembre 2003). Según indicó en ese momento la Relatoría Especial: “este tema merece especial atención en las Américas, donde la concentración de los medios de comunicación ha fomentado, históricamente, el abuso de poder por parte de los gobernantes en la La (sic) distribución arbitraria de publicidad oficial, como otros mecanismos de censura indirecta, opera sobre distintos tipos de necesidades que los medios de comunicación tienen para funcionar e intereses que pueden afectarlos.

Es una forma de presión que actúa como premio o castigo que tiene por objeto condicionar la línea editorial de un medio según la voluntad de quien ejerce la presión. Según se dijo, los mecanismos de censura indirecta suelen esconderse detrás del aparente ejercicio legítimo de facultades estatales, muchas de las cuales se ejercen por los funcionarios en forma discrecional. En el caso de la distribución de la publicidad oficial, se configura un caso de censura indirecta cuando la misma es realizada con fines discriminatorios de acuerdo a la posición editorial del medio incluido o excluido en ese reparto y con el objeto de condicionar su posición editorial o línea informativa.

Para determinar cuando hubo o no violación a la libertad de expresión con motivo del ejercicio de esas facultades, es necesario analizar el contexto. Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de “motivar” al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes.

En los casos Nombre21 Vs. Perú. Sentencia de 6 de febrero de 2001. Serie Nombre143 No. 74, párr. 154. En sentido similar, conf. Corte I.D.H, “Caso Nombre144 y otros Vs. Venezuela”. Sentencia de 28 de enero de 2009. Serie Nombre143 No. 195, la Corte Interamericana, ha sostenido que “[al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron”. Siguiendo el mismo razonamiento, sostuvo que “la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…). Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”(OC-5/85 y caso Nombre136 contra Venezuela). por su parte, la Relatoría para la libertad de expresión ha venido denunciando que este tipo de censuras indirectas se dan con frecuencia y ello se debe a la ausencia de normas legales que regulen la distribución de la pauta publicitaria y reduzcan la discrecionalidad de los funcionarios públicos.

En el mismo sentido, fue señalada por la Corte Suprema de Justicia de Argentina en el caso Editorial Río Negro S.A. c. Provincia de Neuquén, en el cual el tribunal indicó que la Provincia de Neuquén había violado la libertad de expresión de un diario al eliminar la publicidad oficial que allí tenía contratada como consecuencia de una cobertura crítica. La Corte Suprema señaló que la Provincia de Neuquén debería establecer un marco legal adecuado que limite la discrecionalidad de los funcionarios públicos e impida ese tipo de arbitrariedades.

Asimismo, la Corte Suprema de Chile resolvió un reclamo presentado por la Revista Punto Final contra la distribución de publicidad oficial realizada por algunos ministerios. Allí, el tribunal consideró que el orden jurídico chileno otorga a los funcionarios “un amplio margen de discrecionalidad” y recomendó que la inversión de publicidad estatal se haga “bajo criterios transparentes y no discriminatorios”( caso 9148/09). También se han dado casos en países como Estados Unidos (El Día Vs. Nombre165, la Corte Federal de Apelaciones del Primer Circuito), en el que se estableció que el retiro de publicidad oficial por parte de la administración del gobernador de Puerto Rico, Nombre87 al diario El Día, como consecuencia de críticas que el periódico había hecho al gobernador, constituía una clara violación del derecho a la libertad de expresión garantizado por la Primera Enmienda a la Constitución de los Estados Unidos.

En ese sentido, la Corte de Apelaciones entendió que “usar fondos del gobierno para castigar el discurso político de miembros de la prensa y buscar coaccionar [a los medios de comunicación para que emitan] expresiones favorables al gobierno es contrario a la Primera Enmienda”. Además, la Corte entendió que “el derecho claramente establecido prohíbe al gobierno condicionar la revocación de beneficios [en este caso, la publicidad del Estado] sobre una base que infringe intereses constitucionalmente protegidos (Corte de Apelaciones del Primer Circuito, Puerto Rico, caso El Día vs. Nombre165, decisión del 25 de enero de 1999, 165 F.3d 106, pág. 110).

Queda claro de lo expuesto y de los informes de la Relatoría de Libertad de Expresión que el Estado tiene derecho a establecer y modificar su pauta publicitaria, pero que debe hacerlo por medio de criterios objetivos y transparentes, establecidos en forma planificada que aseguren que no se utiliza el poder del Estado o sus fondos, para discriminar, manipular o censurar directa o indirectamente la libertad de expresión y de prensa garantizados convencional y constituiconalmente (sic). Por las razones expuestas, se declara con lugar el recurso en contra del Banco Nacional de Costa Rica, con los efectos que se dirán en la parte dispositiva (…)”. (El destacado no forma parte del original).

En la Sentencia No. 8396-2018 de las 12:40 hrs., de 25 de mayo de 2018, esta Sala expuso:

“(…) I.- Objeto del recurso. La parte recurrente relata que se realizó la entrevista denominada ‘1.a violencia doméstica contra el hombre" en el programa “Café Nacional1' de la empresa pública Radio Nacional de Costa Rica. Acusa que, en reacción a este programa, el Director de Radio Nacional publicó un artículo titulado “Amarga vergüenza", donde advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Asimismo, reclama que la entrevista fue borrada por completo del portal de Internet de SINART y de la página de Facebook, lo que vulnera el derecho a la libertad de expresión y pensamiento. Por último, alega que la autoridad recurrida ha realizado actos de represalia en contra del tutelado [Nombre141 006], ya que lo separaron del programa “Café Nacional” y su plaza se trasladó al Departamento de Prensa, a pesar de que él pertenece al Departamento de Producción de Radio Nacional. (…)

V.Sobre el caso concreto. En el sub examine, la parte accionante reclama que se ha visto afectada por la censura practicada por la empresa pública SINART, toda vez que los recurridos manifestaron que se impedirían programas radiales como el efectuado por ellos y, además, se borró dicho programa de la página de Internet y de Facebook. Como parte de la alegada censura, el tutelado Nombre166 fue separado del programa “Café Nacional’' y trasladado al Departamento de Prensa.

Al respecto, la Sala pudo tener por probado que el 13 de setiembre de 2016 se recibió en el programa radiofónico “Café Nacional" de Radio Nacional a la presidenta de la Fundación Instituto de Apoyo al Hombre y al director administrativo de la Fundación Instituto de Apoyo al Hombre. El programa, producido por los tutelados [Nombre141 005] y [Nombre141 006], fue transmitido en la frecuencia de radio 101.5 FM y por medio de la página oficial de Radio Nacional en la red social Facebook. Asimismo, se corroboró que el Director de Radio Nacional publicó el documento titulado "Amarga vergüenza" en su página personal de Facebook el 14 de setiembre de 2016. En él expresó:

“Ayer martes 13 de setiembre en Radio Nacional de Costa Rica se trató de manera muy lamentable el tema de la violencia intrafamiliar, enfocándolo en la violencia que sufren los hombres en sus hogares. La editorializacion (sic) del espacio no dejó lugar a dudas sobre la posición personal de las personas invitadas y de quienes condujeron (sic) el espacio. En el mismo se justificó de manera increíble (sic) los femicidios, se puso a un mismo nivel la violencia que sufren las mujeres a la que sufren los hombres. se pidió el cierre del lNAMU y se habló de hacer este tipo de programas una vez cada 15 días. cosa que por supuesto no va a suceder. Yo. como Director de Radio Nacional de Costa Rica, no fui consultado para que este tema fuera tratado, quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire. Pero eso no me exime de responsabilidad. Durante mi gestión me he dado cuenta que hay una gran falta de formación a lo interno de la institución en relación con los Derechos Humanos y su tratamiento en medios de comunicación, y lastimosamente los talleres que desde ayer estamos planeando con instituciones como el INAMU', la Defensorio de los Habitantes, el Frente por los Derechos Igualitarios y la asociación ACCEDER, se darán como reacción al daño causado a la sociedad, con la salida al aire de esa entrevista.

Es mi culpa no haber actuado con anticipación, no haber dejado clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART. y no me queda más que dar mi más sincera disculpa y prometerles, sobretodo (sic) a las mujeres que sistemáticamente sufren violencia por el hecho de ser mujeres, que una situación como esta no volverá a pasar. En los medios de servicio público tenemos una gran responsabilidad. Cada vez que uno de nosotros, trabajadores y trabajadoras de la radio y la tv pública, abrimos micrófonos o nos paramos frente a una cámara, no respondemos a una opinión personal basada en nuestras creencias, principios y valores, sino que habíamos desde una institucionalidad que se rige por principios superiores, políticas públicas y tratados internacionales. No se trata si estoy de acuerdo o no, no se trata de qué pienso yo. Tenemos LA RESPONSABILIDAD, así con mayúsculas, de informarnos y formamos sobre los temas pilares de la construcción social de nuestra actualidad y que ni por acción ni omisión, discursos anti derechos humanos o fomentadores del odio tengan espacio en los medios públicos.

Estamos gestionando lo pertinente para que el próximo lunes a las 9 de la Nombre142 especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora y puedan explicarle a nuestra audiencia por qué todo lo que se dijo el pasado martes está equivocado en el enfoque y podamos construir más bien espacios permanentes de promoción de derechos humanos."(E\subrayado es agregado).

Ese mismo día y en la página de Facebook de Radio Nacional, el SINART publicó su postura oficial respecto de lo acontecido:

"En relación con la entrevista realizada ayer martes 13 de septiembre en el programa Café Nacional. referida a diferentes formas de violencia intrafamiliar, la Dirección de Radio Nacional y Dirección General del SINART aclaran: Las expresiones de las personas invitadas y conductoras de dicho espacio que justificaron erróneamente la situación de violencia que sufren miles de mujeres en nuestro país y cuestionaron la pertinencia del Instituto Nacional de las Mujeres. INAMU. no responden de ninguna manera a la posición de estas Direcciones. Reconocemos que el tema de la violencia intrafamiliar debe abordarse desde diversos enfoques, pero nunca desconociendo que la raíz de ese problema se encuentra justamente en una estructura patriarcal machista. y que son por mucho las mujeres y las niñas las principales víctimas de las conductas violentas, sin que esto signifique que desconozcamos que algunos hombres también sufren de violencia y que existen vados en el sistema o mala gestión que les afecte.

El SINART reconoce la necesidad de existencia del Instituto Nacional de las Mujeres y respaldamos su pertinencia en la construcción de una sociedad igualitaria y justa, y en la búsqueda de erradicación de todas las formas de discriminación y violencia que sufren las mujeres. Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista, y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos v pantallas del SINART en su misión de servicio público. Estamos gestionando lo pertinente para que el próximo lunes en el mismo espacio, especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora para referirse al tema desde un enfoque de Derechos Humanos. Como Estado, y más aún como medio de servicio público, tenemos la obligación de hacer cumplir las Convenciones Internacionales en contra de toda forma de discriminación y violencia contra las mujeres, que nuestro país ha suscrito y se ha comprometido a cumplir, como la Convención de Belem do Rara y la CEDA W." (El subrayado es agregado).

Atinente al sub lite, la Sala tuvo por probado que la entrevista a los tutelados fue eliminada de la línea de tiempo del Facebook de la emisora y también del portal web del SINART.

Es claro que la censura a la libertad de expresión se puede dar de manera abierta, particularmente si se trata de una dictadura o una democracia debilitada. Sin embargo, máxime cuando se actúa en el marco de un régimen democrático, es frecuente que la censura se manifieste más bien de forma sutil y velada, verbigracia, afectando los insumos o recursos que permiten su ejercicio, por medio de la emisión de lineamientos restrictivos, efectuando presiones indirectas, etc. Esta característica de la censura velada -que es muy peligrosa, precisamente, por ser subrepticia o disimulada- obliga a los Tribunales a recurrir a la denominada prueba indiciaría a fin de determinar el acto de censura.

En aplicación de lo anterior al sub lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados por supuesto no va a suceder", y que él jamás hubiera permitido que esta entrevista saliera al aire... ", pero “...una situación como esta no volverá a pasar...”. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras.

Más sutil es decir que se debe dejar “... clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART... “y que “...todo lo que se dijo el pasado martes está equivocado en el enfoque... Igualmente subrepticio fue el comunicado oficial de SINART: “Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista. y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos y pantallas del SINART en su misión de servicio público." En estas citas se observa que el SINART pretende imponer su “visión” de Derechos Humanos o “rectificar” la actuación de los tutelados “ con información oportuna y veraz asumiendo que las opiniones de los amparados son lo opuesto: inoportunas y falsas.

Finalmente, quedó acreditado que la grabación de la entrevista fue eliminada de la línea de tiempo del Facebook de la emisora y del portal web del SINART. La Sala considera que, con este hecho, la amenaza de censura se concretó en una censura plena, toda vez que se impidió tanto la libertad de expresión de los amparados como el derecho de terceros de informarse y tener acceso a la entrevista.

Es necesario reiterar que los límites a la libertad de expresión deben estar claramente establecidos en la ley, según establece la Convención Americana sobre Derechos Humanos:

“Articulo 13. Libertad de Pensamiento y de Expresión Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.

El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:

el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral públicas.

No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.

Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.

Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional (El subrayado es agregado).

Según se mencionó en las aclaraciones previas, el contenido del mensaje puede tener un vínculo con las limitaciones a la libertad de expresión. Así, este será de relevancia únicamente cuando esté prohibido por ley y constituya "...propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional." Empero, esta situación no se presenta en el sub examine. Además, si los accionados consideran que el accionar de los tutelados se enmarca en uno de estos supuestos o de aquellos contemplados en el inciso 2 de esa norma, lo procedente seria acudir a las instancias jurisdiccionales a Un de reclamar la responsabilidad ulterior de los sujetos (por aplicación de una ley, como establece la Convención), y no pretender remediar la situación por la vía de la censura previa.

Por otro lado, la Sala recuerda que la labor del SINART, en su condición de empresa pública creada por ley, tiene el deber legal de respetar el pluralismo político, religioso, social y cultural así como de permitir la libre expresión de las opiniones, como de modo explícito se encuentra estatuido en los incisos b) y c) del numeral 4 de la Ley Orgánica del SINART:

“Artículo 4°-Principios. La actividad del SINART, S. A., como sistema de comunicación, se inspirará en los siguientes principios: (...)

La separación entre las informaciones y las opiniones, así como la identificación de quienes sustentan estas últimas y su libre expresión.

El respeto al pluralismo político, religioso, social y cultural." Por eso, salvo que se trate de una excepción legal o convencional expresa, el SINART debe respetar la discusión de todas las opiniones, incluidas aquellas que la dirección del medio que esté de tuno, considere impopulares, minoritarias, cuestionables, etc. Aparte del tema tratado en la entrevista objeto de este amparo, obsérvese que existen innumerables materias que generan opiniones y respuestas contrastantes, apasionadas y terreas, unas con indignación o repudio, otras más bien con apoyo y admiración, como por ejemplo respecto del uso de drogas para efectos medicinales, el aborto, los derechos de la comunidad LGTB, la secularización del Estado, la política salarial del sector público, los sistema de pensiones, el establecimiento de planes fiscales, etc. Reiterando la jurisprudencia transcrita, “..La libertad de expresión no depende de la verdad popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos.

En abono a lo anterior, se aclara que la entrevista de los tutelados tampoco puede ser censurada por el abordaje periodístico o la conducción desarrollada, toda vez que ninguno de esos puntos constituye motivo legal para limitar la libertad de expresión.

La Sala no duda en reiterar que la responsabilidad por el ejercicio de la libertad de expresión es ulterior y debe estar prevista en una ley. De esta manera, si alguna persona se considerare afectada por las manifestaciones vertidas en la entrevista objeto de este recurso, ya sea por los moderadores o por los entrevistados, podría hacer valer sus derechos ante los tribunales ordinarios de justicia. Empero, es absolutamente improcedente que la Administración se aleje del principio de legalidad y pretenda limitar el ejercicio de la libertad de expresión pro la vía de la censura, como acaeció en el sub examine.

VI.Un segundo punto relacionado con la censura es el traslado del tutelado Nombre166 al equipo de Contrapunto. En el expediente quedó acreditado que él fue trasladado a dicha instancia, tal como le fue comunicado mediante oficio PE-DG- 052-2017 del 24 de febrero de 2017 y que existe una notoria proximidad temporal con los demás hechos narrados en el punto anterior. Además, se puso en evidencia la abierta disputa entre la Administración y el tutelado Nombre166, quien comunicó su disconformidad con las actuaciones de los recurridos mediante un correo del 20 de setiembre de 2016, donde manifestó:

Saludos Nombre167. Permítame discrepar con respecto a lo que dice ya que yo en lo particular considero que: CENSURA: es que nuestro director Nombre88 afirmeen su Facebook: "quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire" (...) CENSURA: es que el Director de Radio Nacional nos hubiera "sugerido'' que espaciáramos las invitaciones a la abogada Nombre89 por su pensamiento con respecto a temas como el abono y las uniones de la población sexualmente diversa aunque dichos tópicos no eran abordados por ella en nuestro programa." Así, existen suficientes indicios sobre la censura existente y el distanciamiento entre la Administración y el tutelado. Al respecto, si bien la parte accionada afirmó que se trataba de una reorganización completa del recurso", lo cierto es que omitió adjuntar elementos probatorios que permitieran a la Sala llegar a la misma conclusión. La prueba que allegó se refería a las funciones reasignadas (que se encontraban dentro del perfil de un periodista) y a la constancia del salario del amparado.

La Sala reitera que, en materia de control de constitucionalidad, una vez que ab initio se establecen indicios claros de censura, recae en la contraparte una carga probatoria que debe llevar a concluir que las acciones no eran de tal naturaleza, máxime cuando la recurrida se encuentra en mejores posibilidades de aportar prueba a la causa (carga dinámica de la prueba), toda vez que la Administración dispone de caudales de información y recursos públicos para descartar alguna discriminación o violación a un derecho fundamental; pese a lo cual, en el sub examine, la recurrida no logra desacreditar con prueba fehaciente el agravio de los recurrentes. De esta manera, tomando en consideración lo dispuesto en los ya citados incisos b) y c) del numeral 4 de la Ley Orgánica del SINART, que de forma expresa obligan a esa empresa pública a respetar el pluralismo político, religioso, social y cultural así como a permitir la libre expresión de las opiniones , resulta claro que en la especie se ha dado una forma de censura velada a través de la reubicación de un periodista en un puesto que viene a limitar o eliminar su influencia en el contenido transmitido, todo ello luego o con motivo de las referidas manifestaciones en el ejercicio de su quehacer periodístico.

Lo anterior resulta aún más relevante, puesto que por la vía de la censura velada se ejerce una especie de intimidación o amedrentamiento subrepticio al resto del personal periodístico de la empresa pública SINART. De este modo, la libertad de prensa de aquel se ve amenazada ante la posibilidad de ser víctima de represalias derivadas del ejercicio del periodismo en libertad, cuando se formulen opiniones que no comparta la dirección del medio según el gobierno de tumo; ambiente que propicia el flagelo de la autocensura en detrimento de los periodistas, merced a que su estabilidad laboral podría compelerles a evitar represalias. Ello viene a afectar igualmente al destinatario final de los servicios de periodismo, el público, quien por esa vía ve menguada su capacidad de formarse criterio propio de manera fundada a través del estar a la escucha de una diversidad de contenidos informativo y puntos de vista.

VIL- En virtud de lo expuesto, se declara con lugar el recurso, con los efectos que se dirán. Visto que los actos lesivos son imputables solo al SINART, la condenatoria abarca únicamente a dicha instancia. (…)

Por tanto:

Se declara con lugar el recurso únicamente contra el SINART. Se ordena a Nombre90, en su condición de Nombre138 Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Además, a dicho recurrido se le ordena que dentro del plazo de VEINTICUATRO HORAS, contado a partir de la notificación de esta sentencia, coloque la entrevista del 13 de setiembre de 2016 del programa "Café Nacional" de Radio Nacional de Costa Rica, objeto de este recurso, así como la entrevista del 19 de setiembre de 2016 (la hecha al INAMU y a ACCEDER), en la página de Facebook del SINART, donde quedará fijada en el muro durante al menos un mes, y en la página principal del sitio de Internet del mismo, donde deberá estar visible en la portada o "landing page" por el mismo plazo.

Por otro lado, se le ordena reinstalar de inmediato al tutelado Nombre166 en el puesto que ocupaba al momento de los hechos, en caso de que dicho tutelado manifestare su voluntad en tal sentido; para lo anterior, se le ordena al recurrido comunicar de inmediato al amparado Nombre166 lo resuelto por la Sala. Los Magistrados Nombre91 y Nombre92 dan razones diferentes. El Magistrado Nombre91 pone nota. Lo anterior se dicta con el apercibimiento de que podría incurrir en el delito tipificado en el artículo 71 de la Ley de la Jurisdicción Constitucional, el cual dispone que se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado. Se condena al Sistema Nacional de Radio y Televisión S.A. al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo.

Notifíquese de forma personal a Nombre93, en su condición de Nombre138 Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo. El Magistrado Nombre94 salva el voto y declara parcialmente con lugar el recurso. (…). (El destacado no forma parte del original).

Por su parte, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, este Tribunal señaló lo siguiente:

“(…) I.- Objeto del recurso.- La parte recurrente acude en tutela el derecho a la libertad de prensa, pues considera que la entidad recurrida dictó una resolución que restringe de manera ilícita la libertad de información y de prensa, del medio periodístico amparado, al ordenarle retirar de sus bases de datos, la imagen utilizada en una noticia de interés público. (…)

V.Estima la Sala que cuando se produce una colisión entre estos derechos como en el presente caso (imagen y libertad de prensa), partiendo del carácter institucional del derecho a la información, y siempre que la utilización de la imagen que complementa la noticia sea veraz y no afecte la dignidad de la persona titular de ese derecho, debe decantarse por darle un valor preferencial al derecho a la libertad de prensa. En el mismo sentido podemos encontrar precedentes en la jurisprudencia española (STC 165/1988 y STC 59/1989) en los que el Tribunal Constitucional español, en diversos casos ha ponderado a favor la libertad de información ante el conflicto con otros derechos fundamentales, utilizando como argumento central, el carácter institucional del derecho a la información. En el mismo sentido, el Tribunal Supremo Español, frente a la ponderación de éstos dos derechos ha señalado:

“La técnica de ponderación exige valorar el peso abstracto de los respectivos derechos fundamentales que entran en colisión, y desde este punto de vista, la ponderación debe respetar la posición prevalente que ostentan tanto el derecho a la libertad de expresión como el derecho a la libertad de información por resultar esenciales como garantía para la formación de una opinión pública libre, indispensable para el pluralismo político que exige el principio democrático. Además, ese juicio de ponderación en abstracto debe atender a que el ejercicio de la libertad de expresión, según su propia naturaleza, comprende la crítica de la conducta de otro, aun cuando sea desabrida y pueda molestar, inquietar o disgustar a aquel contra quien se dirige pues así lo requieren el pluralismo, la tolerancia y el espíritu de apertura, sin los cuales no existe sociedad democrática". Sentencia Tribunal Supremo 16 de febrero 2016.

En la misma línea de pensamiento, la Corte Europea de Derechos Humanos resaltó la importancia que "la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática" (caso "Nombre154 vs. Austria", sentencia del 8 de julio de 1986, serie A N° 103, párr. 42).

En efecto, partiendo del contexto jurisprudencial expuesto y de los argumentos externados en los precedentes de cita, esta Sala analiza las consideraciones de del caso y concluye que, lleva razón la parte recurrente en su reclamo. El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. Tal y como se indicó en el precedente de cita, el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho.

Ahora, en el caso bajo estudio, esta Sala considera que la publicación emitida por el periódico Diario Extra el 24 de junio del año 2015, donde se utilizó la imagen del señor Nombre168, el medio informativo se limitó a difundir información relacionada con un hecho noticioso de interés para la colectividad, por tratarse de la posible comisión de un delito, por ello la posibilidad de usar la imagen de una persona para referirse a un acontecimiento, está sustentada en su relevancia para el público, sin que el consentimiento del uso de su imagen en ese contexto, sea necesario. La fotografía que se utiliza es parte de un documento público, no una imagen obtenida en un contexto íntimo, familiar o privado, y se utiliza como accesoria a la noticia, como parte de su complemento. En el caso de la noticia en análisis, la fotografía utilizada es parte de la contextualización de una noticia que, además es veraz (hecho no disputado) y funge como su complemento accesorio, como se indicó, sin que se utilice la imagen en una forma que afecte la dignidad de su titular, de tal forma que en esos términos funciona como un límite válido a las excepciones que admite el derecho a la imagen.

Hoy en día, no se concibe un medio de comunicación sin imágenes, de solo texto, sin ilustraciones, de tal forma que el análisis de la Prohab, a juicio de este Tribunal, parte de un escenario de descontextualización de la utilización de la imagen en cuestión, es decir, como si ésta no fuera parte de un hecho noticioso de interés público que en ese momento se comunica. Señala la recurrida que la noticia se pudo comunicar igual sin utilizar la imagen aludida, lo cual es una forma ilegítima de interferir con la libertad de prensa; es equivalente a decirle a un medio, qué y cómo comunicar o difundir, lo cual es una flagrante violación al contenido esencial de la libertad de prensa. Su efecto sería anulatorio del denominado Fotoperiodismo y generaría una forma de autocensura de los medios de comunicación, que tendrían que estarse autolimitando de ilustrar sus informaciones como parte del contenido de la noticia, mediante el uso de imágenes de personas, para evitar las demandas ante una oficina del Estado, -que en este contexto- pretende operar como un especie de censor o editor de qué y cómo se puede publicar, generando un efecto reflejo de autocensura permanente, como se indicó, a todas luces, lesiva del derecho a la libertad de prensa, que incluye desde luego, la libertad de escoger el contenido de lo que se publica.

Siguiendo la línea ya establecida en la sentencia 2015-1782, de conformidad con el artículo 13 de la Convención Americana:“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.”( 2015-1782) Considera la Sala que el ejercicio de las competencias de la Prohab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.

En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, -puesto que se trata de un tema migratorio fronterizo-, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta. Lo anterior implicaría una censura de la noticia en sí, -lesiva del artículo 13 de la Convención Americana sobre Derechos Humanos-. En el caso Nombre169 vs Argentina (FJ 54 y ss) la Corte IDH declaró que las restricciones a la Libertad de Expresión "(...) tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de lo libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa (...)'; que "deben formularse en forma expresa, precisa, taxativa y previa; y que “el marco legal debe brindar seguridad jurídica al ciudadano, límites que claramente se violaron en este caso, al pretender limitar el contenido de una información veraz de interés público.

Partiendo de ese razonamiento, es que se estima que en el caso concreto, la decisión del ente recurrido, de ordenar a la parte recurrente eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta ser una acción que afecta el desempeño periodístico, informativo y noticioso y con ello el contenido esencial de la libertad de prensa del medio de comunicación amparado. En consecuencia, se concluye que la orden dictada por la Agencia Protectora de Datos al declarar CON LUGAR la denuncia presentada por Nombre95 contra diario Extra, y donde le ordena al Diario Extra, que proceda a eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta violatoria a la libertad de información del medio recurrente, por lo que procede acoger el amparo en estudio, como así se dispone. (…)” (El destacado no forma parte del original).

Esta jurisdicción, en el Voto No. 16167-2020 de las 09:20 hrs. de 28 de agosto de 2020, señaló:

“(…) I.- OBJETO DEL RECURSO. El recurrente estima vulnerados sus derechos fundamentales, toda vez que, ante la pandemia de la covid-19, el gobierno ha dictado medidas que limitan la libertad de tránsito y de comercio. Además, sostiene que las autoridades recurridas vulneran la libertad de prensa, debido a sus actuaciones respecto al Diario Extra, toda vez que el MTSS canceló la suscripción de tal medio y el ICAA ordenó a sus funcionarios no hablar con periodistas del periódico en mención. (…)

IV. SOBRE EL CASO CONCRETO

En el sub examine, el amparado reclama que el Ministerio de Trabajo y Seguridad Social vulnera los derechos fundamentales, dado que se canceló la suscripción del Diario Extra. Al respecto, en el informe rendido bajo juramento por la Ministra de Trabajo y Seguridad Social se indicó, respecto a la cancelación por parte del MTSS de la suscripción mantenida con el Diario Extra, que: “(…) esa decisión obedeció a que producto del Estado de Emergencia Sanitaria que enfrenta el país, que nos ha causado afectación económica no solo a nivel nacional sino también mundial, el Poder Ejecutivo gestionó días atrás, recorte en el gasto público. Siendo que ese recorte presupuestario, nos obligó cómo Institución a liberar costos en algunas partidas específicas, cuidando desde luego, no afectar el servicio que como Cartera brindamos a la ciudadanía. Siendo entonces, que en virtud de ese recorte presupuestario que realizamos, fue que se adoptó la decisión de eliminar la suscripción que la Institución mantenía con algunos diarios de circulación nacional, tales como: Diario Extra, La Nación, El Financiero y La República.

Pues el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas” (la negrita no es del original).

Así, el Tribunal verifica que, el 14 de julio de 2020, un funcionario del MTSS remitió el oficio DGAF-OF-383-2020 a la representante legal de la Sociedad Periodística Extra Limitada, en el que manifestó: “De la manera más atenta y en marco de la contratación 2019CD-000045-0007000001; bajo la modalidad según demanda para la adquisición ejemplares del periódico La Extra, se informa que en atención a instrucciones superiores y en cumplimiento de las nuevas directrices emitidas por el Gobierno Nombre01 de Costa Rica, que insta hacer recortes presupuestarios mandatorios a efecto de orientarse a la atención de la pandemia COVID-19 nos vemos en la necesidad de solicitar formalmente, la cancelación indefinida de entrega de dicho periódico a partir del día 16 de julio de 2020”. En igual sentido, se observan los oficios DGAD-OF-376-2020 dirigido al representante legal de Properiodicos Limitada y DGAD-OF-382-2020 remitido al representante legal de Grupo Nación GN S.A., mediante los cuales se informó sobre la cancelación de la suscripción que mantenía el MTSS con los periódicos La República, así como La Nación y El Financiero, respectivamente.

De este modo, contrario a lo alegado por el tutelado, este Tribunal estima que la actuación del Ministerio de Trabajo y Seguridad Social no conculca los derechos fundamentales. Nótese que, en el sub iudice, el MTSS canceló la suscripción no solo del Diario Extra, sino de otros medios de comunicación como La República, La Nación y El Financiero. Además, no se verifica que tal decisión haya sido arbitraria, sino que la misma obedece a un recorte presupuestario derivado de la pandemia de la covid-19. Al respecto, cabe reiterar que en el informe rendido bajo juramento por la ministra de Trabajo y Seguridad Social se consignó que “(…) el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas”.

Ergo, dadas las condiciones provocadas por la referida pandemia, tal institución priorizó la compra de toallas de papel, lo que conllevó que se prescindiera de las suscripciones referidas. Por consiguiente, al no haberse verificado la vulneración a los derechos fundamentales, lo procedente es declarar sin lugar el recurso en cuanto a tal extremo.

V.Por otra parte, en cuanto al reclamo formulado por el recurrente respecto al accionar del ICAA, el Tribunal observa que el 29 de junio de 2020 se emitió la “MINUTA GG-2020-02784”, relativa a una reunión efectuada entre funcionarios del ICAA y representantes del sindicato SITRAA, documento que carece de firmas y en el que se consigna: “Objetivo: Temas variaos SITRAA Lugar: Virtual Fecha:29-06-20 Hora de inicio: 11:00am Hora final: 12:40pm (…) 1. Campaña de refuerzo labor de AyA, acción, SITRAA- AyA. cuadrillas operativas, lema héroes de la higiene. Nombre96 explica la propuesta, desde SITRAA se ha realizado una campaña de comunicación para levantar la imagen del AyA. No están de acuerdo con la campaña y gastos que tiene programado el AyA. Lema: “Héroes de la Higiene”, quieren iniciar con una campaña con este lema y realizarlo con apoyo de los trabajadores operativos en todo el país. Nombre97 le consulta a Nombre170 cuál es el objetivo de la Contratación de Publicidad del AyA, al parecer no lo tiene claro, por ende ella le realiza una explicación detallada, el objetivo es la conectividad de las viviendas a las redes de alcantarillado de AyA.

Aclara que la campaña no es para levantar la imagen de AyA, sino para estimular a la población a que se conecte a las redes de alcantarillado. Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización. Nombre170 comenta que ellos no dan información a la prensa, más bien indica que la prensa les solicita a ellos aclaraciones de cosas que ellos no conocen. Aclara que SITRAA lleva a la prensa las cosas que no reciben respuesta por parte de la Administración. Nombre98 realiza comentarios sobre la campaña, indica que la propuesta de SITRAA le parece bien se puede hacer con recursos propios, recomienda que exista unidad para levantar la imagen de AyA, señala algunas labores que se han desarrollado desde la Dirección de Comunicación Institucional. Se debe reforzar la base interna antes de proyectarnos a lo externo. Nombre171 de SITRAA comenta que sería bueno que doña Nombre172 lea detenidamente los comunicados que salen en prensa, para que se de (sic) cuenta que el SITRAA no está perjudicando la imagen, sino mas (sic) bien defienden la institucionalidad del AyA, por su importancia en la gestión del recurso hídrico.

Nombre172 indica que los medios solo publican cosas que debilitan la imagen de AyA, solicita hacer una alianza con los sindicatos para levantar la imagen de la Institución (…)” (el énfasis fue suplido).

Al respecto, la Presidenta Ejecutiva del ICAA indica en el informe rendido bajo juramento ante este Tribunal Constitucional que: “En atención a la formalidad establecida a nivel institucional, se levantó un borrador de minuta de la reunión, con número GG-2020-02784, el cual está asociado al número de oficio, dicho borrador no lleva ninguna firma o rúbrica de los participantes y se aclara en este acto, que a pesar de que estaban convocados los funcionarios de la lista contenida en el borrador de la minuta, los señores Nombre99 y Nombre100, no se presentaron a la reunión que había sido convocada de manera virtual, sin embargo; se realizó de forma presencial. El borrador de minuta fue levantado por el funcionario Nombre101, quien consigna en el formato que se acostumbra a estas reuniones, la agenda y una sucinta referencia de los temas abordados. La minuta posteriormente fue comunicada y compartida vía correo electrónico por el SDI con el Memorando GG-2020-02784, suscrito por el funcionario Nombre101 de la Gerencia General, quien tiene bajo su responsabilidad dar seguimiento a los temas y acuerdos de las reuniones con los diferentes sindicatos constituidos en el AYA.

Del documento denominado “minuta” se desprende claramente que en ningún momento la suscrita manifestó el hecho que se recurre, por lo que es claro que el recurrente descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hice un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso me referí puntualmente cuando indiqué “no alimentar los medios” como lo cita la minuta. Reitero, que ni de la minuta ni de ningún otro documento se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el recurrente para realizar esa temeraria interpretación a la libertad de expresión.

De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución” (la negrita fue suplida).

La Sala también observa que, el 21 de julio de 2020, la presidenta ejecutiva del ICAA dirigió el oficio PRE-2020-01101 a la gerente general de Diario Extra, en el que manifestó: “En ejercicio del derecho de respuesta consagrado en los artículos 29 de la Constitución Política y 14 de la Convención Americana de Derechos Humanos, así como el 66 en adelante de la Ley de Jurisdicción Constitucional, en mi calidad de Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, solicito el debido espacio para rectificar la nota publicada por Diario Extra el día 21 de julio del 2020 titulada “Presidenta Nombre173 ordena no hablar con DIARIO EXTRA”. Agradezco la publicación del siguiente texto: Nombre173 jamás ha ordenado no hablar con Diario Extra Con respecto a la nota publicada en Diario Extra el 21 de julio del 2020, titulada “Presidenta Nombre173 ordena no hablar con Diario Extra”, como Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados (Nombre173) califico de absolutamente falso que se haya “ordenado” a algún funcionario o funcionaria no hablar con el Diario Extra.

El periodista descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hago un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios..” como lo cita la minuta. Ni de la minuta ni de ninguna parte se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el periodista para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo.

Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución. En el Nombre173 somos respetuosos del derecho a la información y la libertad de expresión, nunca estaríamos de acuerdo en lesionar esos derechos. Durante este año a Diario Extra hemos enviado dos derechos de respuesta, uno con respecto a una publicación del día 15 de enero que jamás se publicó, y otro que si fue publicado en la edición del 27 de junio. Somos conscientes del papel vital que juega la prensa para nuestra democracia. Estamos claros de lo importante que es para el país el fortalecimiento de los medios de comunicación, ya que como nación no nos podemos permitir la interrupción de las operaciones de un medio de comunicación, eso sería contrario al interés público de estar informados, máxime en medio de una pandemia, que exige información veraz y oportuna a diario. Hemos confiado y confiamos en el Grupo Extra para realizar nuestras campañas informativas y de rendición de cuentas a la población y seguiremos en la medida de nuestras posibilidades haciéndolo. Jamás podríamos permitir que se nos acuse de asestarle golpe alguno a la libertad de expresión” (el resaltado fue suplido).

Así las cosas, se estima procedente traer a colación lo preceptuado en la sentencia n.° 2014-011694 de las 9:05 horas del 18 de julio de 2014 dictada por este Tribunal Constitucional, en la que se dispuso:

“III.- SOBRE LA LIBERTAD DE EXPRESIÓN Y RELACION ESTATUTARIA. Los funcionarios o servidores públicos, por la circunstancia de estar sometidos a una relación estatutaria, no pueden ver diezmada o limitada su libertad de expresión y opinión y, en general, ninguno de los derechos fundamentales de los que son titulares por intrínseca dignidad humana. Las organizaciones administrativas no son compartimentos estancos o separados del conglomerado social y la existencia de una carrera administrativa o de una relación estatutaria no justifican el despojo transitorio o las limitaciones de los derechos fundamentales de los funcionarios públicos de los cuales gozan en todas las facetas de su vida. Ciertamente, la libertad de expresión en el ámbito de una relación funcionarial o estatutaria puede sufrir leves modulaciones por razón de la relación de jerarquía inherente a la organización administrativa, la confianza que debe mediar entre el superior y el inferior, los deberes de lealtad de ambos con los fines institucionales y de reserva respecto de las materias que han sido declaradas secreto de Estado por una ley.

Sobre el particular, conviene agregar que tal matización ha de ser proporcionada y razonable, y que ni siquiera un interés público podría limitar o restringir los derechos fundamentales de un funcionario público por la vinculación más fuerte, la eficacia directa e inmediata y la superioridad jerárquica de éstos. Los conceptos de buena fe y lealtad no pueden enervar la libertad de expresión de un funcionario público cuando a través de su ejercicio no se causa una lesión antijurídica al ente u órgano público al cual pertenece y representa o a terceros. Los jerarcas o superiores jerárquicos de un ente u órgano público, por sus especiales y acusadas responsabilidades y exposición al público, deben estar sujetos y tolerar la crítica no dañina o antijurídica tanto de los usuarios de los servicios públicos, administrados en general como de los propios funcionarios. Lo anterior es, también, predicable respecto de las formas e instrumentos de gestión o administración de un ente u órgano público.

La crítica de los usuarios, administrados en general y de los funcionarios públicos sobre el desempeño individual de algún servidor e institucional del ente u órgano público constituye una poderosa herramienta para el control y fiscalización de la gestión pública y, desde luego, para obtener mayores niveles de rendimiento resultados-, rendición de cuentas y transparencia administrativa. Ningún funcionario público puede ser inquietado, perseguido, recriminado o sancionado por expresar sus opiniones, ideas, pensamientos o juicios de valor acerca de la gestión del ente público o las actuaciones de otro funcionario público.

IV. SOBRE EL CONTENIDO DEL ARTÍCULO 13 DE LA CONVENCIÓN AMERICANA SOBRE DERECHOS HUMANOS El artículo 13 recoge lo siguiente

Artículo 13. Libertad de Pensamiento y Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.

En el citado numeral se pretende maximizar las posibilidades de participar en el debate público especialmente cuando además de proteger la expresión de ideas, reconoce el derecho colectivo a ser debidamente informado y el derecho a réplica. No obstante, como todo derecho, no es absoluto, sino que admite restricciones para armonizar su ejercicio con los derechos de los demás, la seguridad de todos y las exigencias del bien común en una sociedad democrática (art.32 de la Convención). Pero estas limitaciones no pueden ser más que lo establecido en el mismo numeral o bien las Constituciones Políticas (art.30 de la Convención). Este derecho no puede estar sujeto a previa censura sino a responsabilidades posteriores. La Constitución Política en su artículo 29 recoge ese postulado al establecer que: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejrcicio de este derecho, en los casos y del modo que la ley establezca”.

La libertad de expresión en este sentido no puede ser sometido a un control a priori. El Estado a tráves (sic) de cualquiera de sus órganos está impedido constitucional y convencionalmente, con las excepciones de protección de otros derechos que dispone el mismo artículo 13 y 27. 1 de la Convención, a realizar censura previa. Ya la Comisión Interamericana Sobre Derechos Humanos ha señalado reiteradamente el doble aspecto de la libertad de expresión: el derecho de toda persona de difundir ideas e informaciones; y el aspecto colectivo, constituido por el derecho de toda la sociedad de recibir tales ideas e informaciones. Y al darse mediante la censura previa la violación del derecho de expresión, se lesiona una gama de derechos, como el que tiene toda la colectividad de recibir información veraz. Así la Corte Interamericana, Opinión Consultiva OC-5/85 ha dicho, que: "...cuando se restringe ilegalmente la libertad de expresión de un individuo, no sólo es el derecho de ese individuo el que está siendo violado, sino también el derecho de todos a "recibir" informaciones e ideas.

V. SOBRE EL CASO CONCRETO

En el caso bajo estudio, la institución recurrida dispuso mediante la circular número 211-2014, fechada 10 de marzo de 2014, del Director de Relaciones Públicas del Ministerio de Obras Públicas y Transportes, dirigida a directores y jefes de Departamentos del Mopt, que se coordine con la Dirección de Relaciones Públicas cuando los medios de comunicación los contacten directamente, para una oportuna atención a los medios y se traduzca en oportunidades de divulgación institucional; asimismo, se defina conjuntamente el tema a consulta a tratar. El recurrente considera que dicha disposición es contraria al derecho de expresión de los trabajadores del Mopt, porque lo que pretende la Dirección de Relaciones Públicas es ejercer una censura previa sobre las manifestaciones o expresiones que hagan los funcionarios públicos. El Director recurrido dice que se trata de una puesta en conocimiento de los funcionarios cuando la prensa los enlaza sin haber coordinado con Relaciones Públicas; se trata de darles a los funcionarios un manejo idóneo del tema para responder a los medios de información y no ejercer una censura previa como dice el accionante.

Pero lo cierto, es que el hecho de que los funcionarios del Ministerio de Obras Públicas y Transportes tengan que adecuar sus manifestaciones, según las reglas de la Dirección de Relaciones Públicas de este ministerio, cada vez que estén de frente a los medios de comunicación colectiva, es una injerencia, a manera de censura previa, que amenaza o no les permite expresar libremente su opinión en temas propios de su quehacer institucional, lo que afecta directamente a la colectividad que recibe una información filtrada o con alguna censura. No puede admitirse que la Circular 211-2014 de la Dirección de Relaciones Públicas – se ubique en uno de los presupuestos contemplados por nuestra Constitución o por los instrumentos internacionales que la complementan (gracias al efecto integrador del artículo 48 según la enmienda de 1989), para legitimar una restricción a la libertad de expresión. Por estas razones el recurso debe estimarse con las consecuencias de ley.” (el énfasis fue suplido).

Además, a los efectos de resolver este amparo resulta oportuno citar lo dispuesto en la sentencia n.° 2015-01782 de las 11:36 horas del 6 de febrero de 2015: (…)

Este Tribunal considera que los precedentes transcritos resultan aplicables al sub lite, toda vez que no encuentra motivos para variar los criterios vertidos ni razones para valorar de manera distinta la situación planteada.

De este modo, en el sub iudice, la Sala estima que se ha producido una lesión de relevancia constitucional. Nótese que si bien la minuta aludida carece de firmas, no menos cierto es que la presidenta ejecutiva del ICAA no desmintió su contenido, sino que se limitó a alegar que se descontextualizó la frase “Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización”, toda vez que lo que pretendió externar fue “un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios”. En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública.

En efecto, contrario a lo sostenido por la autoridad recurrida, con la frase en cuestión se exhortó a funcionarios del Instituto Costarricense de Acueductos y Alcantarillados, a que se abstuvieren de remitir información de relevancia pública a ciertos medios de comunicación. En primer término, tal actuación implica una seria amenaza a la libertad de pensamiento y expresión de tales servidores, dado que la iniciativa proviene, ni más ni menos, de la propia presidenta ejecutiva de la institución en mención, a partir de lo cual el “llamado a no alimentar a medios” reviste una particular gravedad merced al rango jerárquico de quien lo externó. En segundo término, se vulnera la libertad de prensa y el derecho a la igualdad, toda vez que se incita a que dos medios de comunicación en particular, CR-Hoy y Diario Extra, no reciban información por parte de los funcionarios del ICAA, al tiempo que de manera absolutamente injustificada coloca a los afectados en una clara situación de desventaja frente al resto de medios. En adición, la situación expuesta lesiona a la población en general, dado que “el llamado a no alimentar a medios” le impide al público acceder a información concerniente a la prestación de servicios públicos esenciales, lo cual es inaceptable en una sociedad que se rige por los principios democrático, de rendición de cuentas, y de transparencia en la gestión pública.

En virtud de lo expuesto, lo procedente es declarar con lugar el recurso, en los términos consignados en la parte dispositiva de esta sentencia. (…)

Por tanto: Se declara parcialmente con lugar el recurso solo en cuanto al Instituto Costarricense de Acueductos y Alcantarillados por violación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales de rendición de cuentas, democrático y de transparencia en la gestión pública. Se ordena a Nombre102, en su condición de presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, o a quien en su lugar ocupa ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Se advierte a la autoridad recurrida que de no acatar tal orden, incurrirá en el delito de desobediencia y, que de conformidad con el artículo 71 de la Ley de la Jurisdicción Constitucional, se le impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quienes recibieren una orden que deban cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumplieren o no la hicieren cumplir, siempre que el delito no esté más gravemente penado.

Se condena al Instituto Costarricense de Acueductos y Alcantarillados al pago de las costas, daños y perjuicios causados, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. En todo lo demás, se declara sin lugar el recurso. Notifíquese. (…)”.

De forma más reciente, este órgano constitucional, en la Sentencia No. 23107-2022 de las 09:30 hrs. de 4 de octubre de 2022, dispuso lo siguiente:

“(…) VI.- Caso concreto. En el sub lite, la recurrente alega como primer agravio, que en su condición de periodista, ejerce la dirección del programa de análisis, opinión y autocrítica llamado "Hablando Claro", que se transmite desde el 1° de febrero de 2007, por Radio Columbia y considera que en esa condición las autoridades recurridas lesionaron sus derechos fundamentales, específicamente, los derechos a la libre expresión y libertad de prensa, dado que entre el 8 y el 9 de julio pasado, recibió llamadas de cinco personas funcionarias públicas, que se desempeñan en puestos de jerarquía dentro del Gobierno Nombre01 o en las oficinas de comunicación de ministerios e instituciones descentralizadas, quienes le manifestaron, en condición de fuentes periodísticas confidenciales, que se encontraban alarmadas por un comunicado que la entonces Ministra de Comunicación, Nombre103, les remitió por WhatsApp, a todos los Ministros y Presidentes Ejecutivos del Gobierno. Aduce que, según le relataron sus fuentes, en la referida comunicación, la Ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios "Amelia Rueda, La Nación, CRHoy y Canal 7". Asimismo, que en ese comunicado se les instaba "con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda".

Al respecto, del informe rendido por las autoridades recurridas, -que se tiene por dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, esta Sala no pudo tener por demostrado que se haya girado la orden o directriz que cuestiona la recurrente. Si bien, puede considerarse que, sobre este punto en particular, los informes recibidos resultan escuetos o lacónicos, lo cierto es que sí expresan claramente que no se giró una orden o indicación en ese sentido. La Sala aprecia que tales informes se enfocan en las competencias y potestades del Ministerio de Comunicación y en aspectos procesales de la presentación de este recurso, pero al negar la existencia de la orden, directriz o indicación referida por la amparada, en este caso en particular se carece de toda posibilidad de tener por demostrada su existencia, siendo así que lo procedente es declarar sin lugar el recurso en cuanto a este extremo.

VII.Sin embargo, por la trascendencia del tema y la gravedad que podría implicar girar desde el poder público alguna orden en los términos reclamados en este proceso, resulta menester recordar a las autoridades del Ministerio de Comunicación y del Ministerio de la Presidencia, que tal y como se expresó en el quinto considerando de esta sentencia, la libertad de expresión e información conlleva una doble dimensión, que se refleja no sólo en la posibilidad de los periodistas de informar sobre los temas de relevancia para la opinión pública, sino también el derecho que tienen los habitantes del país de enterarse de dicha información, por lo que los órganos y entes públicos se encuentran en el deber de adoptar las medidas correspondientes para que pueda informarse a los y las habitantes Nombre01 sobre las acciones y acontecimientos que se producen o desarrollan en el territorio nacional y que son de interés para la colectividad.

Máxime que los temas y decisiones que se toman y tratan desde el gobierno central y toda institución, órgano y ente administrativo, tienen una trascendencia y relevancia para el buen funcionamiento del país y el ejercicio de los derechos reconocidos a la población en general y a sus integrantes dentro de sus propios ámbitos de actuación, por lo que, todos estos temas deben ser tratados con absoluta publicidad y transparencia, sin posibilidad alguna de impedirle a la ciudadanía, a la opinión pública y a cualesquier medio de comunicación colectiva, tener conocimiento de estos. Ergo, las prácticas que obstaculizan el acceso a la información, como lo es el impedir informar sobre determinados eventos o decisiones, rehusarse a brindar entrevistas a diversos medios de comunicación, no invitarlos a formar parte de conferencias o ruedas de prensa, limitarles la publicidad, impedir el acceso a insumos necesarios para la divulgación, entre otras variables relacionadas con la censura directa o indirecta, no pueden ni deben ser avaladas por un Tribunal Constitucional, por la elemental razón de que su acceso y entrega oportuna tiene que hacerse a través de un proceso fácil, expedito y sin complicaciones, que garantice a la población y, en general a la opinión pública, el derecho a la información y a la libertad de expresión.

Dicho lo anterior, se les reitera a las autoridades recurridas que “el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos” (Cfr. sentencia No. 2006-5977 de las 15:16 horas de 3 de mayo de 2006). En otras palabras, deben tener presente los recurridos que, en el ejercicio de cargos públicos como los que ostentan, y en la era actual, en donde por el avance tecnológico se tiene mayor facilidad de cobertura y acceso a hechos noticiosos, es normal que alguna de las discusiones que se generen al calor de la prensa, pueden resultarles infortunadas y desagradables; no obstante, en un país democrático como Costa Rica, ese ejercicio de la libertad de expresión y la libertad de prensa es lo que nos caracteriza como un Estado Social de Derecho y un pueblo libre.

Por tales razones, en aras de garantizar la libertad de prensa y de libre expresión que tienen tanto los periodistas o medios de comunicación colectiva, como la población de manera general, es que las autoridades recurridas deben velar porque cualquier directriz, orden, acto o instrucción que se gire desde el gobierno central se apegue siempre a la protección de estas libertades y de cualquier derecho fundamental de los que se goza en un país democrático como el nuestro, en los términos que han sido expuestos en esta sentencia (…)”.

Como se ha podido observar, resulta claro que el uso o aplicación por parte de las autoridades estatales o de particulares de las restricciones indirectas aludidas en este considerando, atenta grave y flagrantemente contra la libertad de expresión y la libertad de prensa. De ahí, la importancia del resguardo y protección que les provee nuestra Constitución Política y la Convención Americana sobre Derechos Humanos, entre otros instrumentos; de ahí también la responsabilidad que recae en esta Sala Constitucional de velar porque esto así se cumpla.

VIII.- conglomerados o estructuras financieras CREADAS PARA financiar o diversificar las fuentes de ingresos de los medios de comunicación y, consecuentemente, PERMITIR el ejercicio de la libertad de prensa. los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales como lo son Google y Facebook y el consecuente cambio en los hábitos de consumo de la información. Todo esto, sumado, ha generado que el usuario prefiera mayormente acceder a la información vía digital (sea, a través del uso de los teléfonos inteligentes, tabletas electrónicas, computadoras, etc.) y no mediante la compra del periódico impreso o bien, accediendo a otras plataformas (radio o televisión), tal y como regular y tradicionalmente lo venía haciendo.

En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir. A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v.gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura).

Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional.

Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por Nombre104, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet. Igualmente, se tiene que Nombre105, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Nombre174 figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur.

Asimismo, se cuenta con el caso de Nombre106 (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando(https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).

En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Dirección03 y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.

Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso Nombre03 S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho.

Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión.

Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso.

Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado.

En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa.

Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas.

IX. CASO CONCRETO

El estudio de este asunto se encuentra estructurado, para una mejor comprensión, en los siguientes cuatro apartados, a saber: a) aclaraciones previas; b) cierre de Parque Viva a través de una actuación arbitraria, infundada y desproporcionada; c) cierre de Parque Viva y vulneración indirecta a la libertad de expresión y d) aclaraciones finales de interés.

A. ACLARACIONES PREVIAS. En este proceso de amparo se discute medularmente lo tocante a la orden sanitaria de cierre girada en contra de Parque Viva el 8 de julio de 2022, así como los efectos que esta generó o trajo consigo en el medio de comunicación Diario La Nación, particularmente, en cuanto a la libertad de expresión.

Al respecto, es importante aclarar primeramente que este Tribunal Constitucional ha sido del criterio que no le corresponde, por tratarse de un tema de mera legalidad, pronunciarse en relación a los aspectos técnicos (requisitos) que se le exigen cumplir a un determinado local comercial, a la luz de lo dispuesto en el ordenamiento jurídico, a efecto que les sea otorgado un permiso sanitario y entrar así en funcionamiento. También, esta Sala ha dicho que escapa del ámbito de su competencia entrar a valorar y cuestionar los criterios técnicos emitidos para dejar sin efecto eventualmente ese permiso, a través, por ejemplo, del giro de una orden sanitaria.

No obstante, es importante señalar que la anterior postura no obsta para que este órgano constitucional pueda llevar a cabo un análisis de una orden sanitaria y de las circunstancias en que esta fue emitida, desde una perspectiva constitucional, a la luz de aspectos que esta jurisdicción tradicionalmente sí ha abordado, analizado y garantizado desde su creación, tal y como se verá en los apartados siguientes. En ese particular, cabe destacar que esta Sala ha sostenido también que las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud pueden ser revisables ante esta jurisdicción, en casos excepcionales, determinados de forma concreta por su ineludible directa relación con las libertades o derechos fundamentales esenciales en el sostenimiento del sistema democrático. Así, en Sentencia No. 21103-2022 de las 09:20 hrs. de 9 de septiembre de 2022, esta jurisdicción indicó:

“(…) este Tribunal en reiterada jurisprudencia ha señalado que, bajo tesis de principio y salvo determinadas excepciones particulares, determinadas de manera concreta por su ineludible directa relación con libertades o derechos fundamentales esenciales para el sostenimiento del sistema democrático, las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud no son cuestionables en esta jurisdicción. (…)”. (El destacado no forma parte del original).

Cabe destacar que mediante el Voto No. 1515-2021 de las 10:00 hrs. de 26 de enero de 2021, este Tribunal dispuso anular una medida sanitaria girada por el Ministerio de Salud en contra de un recurrente en detrimento de su derecho a la libertad de expresión, al estimarse que dicho acto administrativo carecía de fundamentos técnicos. En esta ocasión, esta Sala dispuso expresamente lo siguiente:

“(…) III.- OBJETO DEL RECURSO. Los recurrentes alegan que el amparado, en ejercicio de su derecho constitucional a la libertad de expresión, ha creado un movimiento en las redes sociales sirviéndose de su perfil público https://www.facebook.com/rolandoarayamonge y su programa radial "Cubaces Tiernos", que se transmite por radio en la frecuencia 89.1 FM y, de forma simultánea, en la plataforma de Facebook Live denominada "streaming", haciendo referencia a la supuesta eficacia del dióxido de cloro (clorito de sodio), para combatir covid-19. Sin embargo, el Ministerio de Salud emitió una orden sanitaria en su contra, por considerar que incita a la población a consumir una sustancia que no ha sido autorizada y, por el contrario, está contraindicada. (…)

V.Sobre el caso concreto. En su jurisprudencia, este Tribunal no ha escatimado en posicionar la libertad de expresión como un elemento clave del sistema democrático:

“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos.

Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986). (…)

Al igual que los demás derechos fundamentales, la libertad de expresión también está sujeta a limitaciones, como serían aquellas derivadas de la protección de la salud pública, entre otras.

La pregunta que la partes buscan dilucidar en este proceso se refiere a la posibilidad de que el Ministerio de Salud limite la libertad de expresión del amparado Nombre175. Para contestar tal pregunta, sin embargo, es necesario analizar las manifestaciones de las partes y la orden sanitaria en sí, toda vez que ella fue el medio utilizado para limitar los derechos del tutelado.

Como primer punto, la Sala nota una discrepancia entre lo manifestado por la autoridad recurrida en este proceso y la prueba material. En efecto, el informe señala que la orden sanitaria indica:

“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo. Trasfiero parte de lo que manifiesta en su video: “…descubrimiento o hallazgo que hicieron algunas personas en torno a la eficacia de un producto llamado clorito de sodio, bueno particularmente el producto activo dióxido de cloro que según resultados que han obtenido, elimina toda clase de gérmenes, probado científicamente porque lo usan en superficies, se usa generalmente para limpieza y purificación de agua…” “ … Resulta que si una persona se toma un poquito de eso, unas gotitas de eso, pues le quita los virus, las bacterias y muchas cosas de estas…” “…pero no estamos pidiendo que lo usen y lo acepten, lo que me parece decente, lógico, aceptable, razonable, para una crisis como la que está viviendo el mundo, es que lo prueben, si nada le pasa a las personas, hay una inocuidad total…” Se le informa: (…)” (El subrayado es agregado).

Empero, la orden sanitaria que fue aportada carece de tales transcripciones, pues textualmente reza en lo conducente:

“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo y en otras publicaciones compartidas se afirma que el clorito de sodio o dióxido de cloro en organismos, reacciona contra gérmenes patógenos, oxida inmediatamente a los virus a las bacterias, hongos, parásitos y sirve inclusive para cáncer, diabetes y otras enfermedades.

Se le informa: (…)” Este Tribunal observa una clara incongruencia entre ambos textos con respecto a un punto medular para el proceso: cuáles son las expresiones achacadas al tutelado.

Como era debido, la Magistrada Instructora previno a las partes que aportaran los videos relacionados con el sub iudice (resolución de las 16:27 horas del 18 de setiembre de 2020). No obstante, tal prevención fue incumplida por la parte accionada. Al respecto, esta última indicó:

“…En atención a la solicitud de aportar las publicaciones eliminadas por parte del Equipo Legal de Facebook ante el caso del Sr. Nombre107, se le indica que debido a que este contenido fue subido a únicamente a sus páginas personales y el Equipo Legal de Facebook procedió a analizarlas y posteriormente eliminarlas, no se cuenta con el detalle de las mismas. Lo que sí se aporta es el oficio MS-DRPIS-UNC-2056-2020 dirigido al Departamento Legal de Facebook, donde se indican los url's de los enlaces de las publicaciones que hacían mención al dióxido de cloro, en este se tomaba como referencia la alerta sanitaria denominada Productos que contienen Clorito de Sodio o Dióxido de Cloro, la Ley General de Salud en sus artículos 107, 111 y 112; y el reglamento para la autorización y control sanitario de la publicidad de productos de interés sanitario N° 36868-S. En este documento se observa lo publicado en dichas páginas de Facebook respaldado por el url de cada publicación, sin embargo, debido a la eliminación por parte del equipo legal de esta empresa no se cuenta con el detalle de las mismas más que lo que en el documento se indica…” Ahora bien, las consecuencias de tal incumplimiento son distintas para la parte recurrente y la recurrida, debido al principio de carga dinámica de la prueba y a la posición procesal de cada una de ellas.

En sede constitucional, dado que la parte recurrente ha acreditado una limitación a los derechos del tutelado (por escrito del 10 de agosto de 2020 cumplió la prevención de la Sala y aportó copia de la orden sanitaria), la carga dinámica de la prueba obliga a la autoridad accionada a justificar tal restricción. En el sub lite, la justificación del accionar de la Administración y la orden administrativa dictada está en los supuestos videos del procedimiento administrativo, por lo que la recurrida debió resguardarlos y aportarlos.

Justamente, desde el punto de vista procesal, la obligación citada recae en la Administración, dado que ella tiene el deber de recabar y asegurar en el expediente administrativo la prueba que sirve de fundamento a sus decisiones en los procedimientos, de manera que el afectado pueda acudir al expediente administrativo seguido en su contra y conocer a cabalidad las circunstancias del caso, requisito sine qua non para el efectivo ejercicio de su derecho constitucional a la defensa.

Empero, los videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.

La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.

Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.

Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública. (…)

POR TANTO: Se declara con lugar el recurso y, en consecuencia, se anula la orden sanitaria No. MS-DRPIS-UNC-2001-2020 del 30 de julio de 2020, dictada por el Ministerio de Salud. (…)”. (El destacado no forma parte del original).

Así las cosas, se evidencia que la línea de esta Sala es brindar tutela cuando una orden sanitaria violenta otras libertades públicas que se encuentren directamente relacionadas con el sostenimiento del sistema democrático, como lo es, por ejemplo, la libertad de expresión.

A partir de lo anterior, es de suma relevancia tomar en consideración que en este amparo nos encontramos ante una situación absolutamente excepcional, ya que se encuentra de por medio uno de los derechos fundamentales de mayor importancia y trascendencia para el pueblo de Costa Rica y su preciado sistema democrático, como lo es la libertad de expresión. De ahí; la plena justificación para que este Tribunal Constitucional conozca por el fondo este asunto vía amparo, y se pronuncie respecto a los hechos acusados.

B. CIERRE DE Dirección09 A TRAVÉS DE UNA ACTUACIÓN ARBITRARIA, INFUNDADA Y DESPROPORCIONADA. El Director del Diario La Nación, Nombre108, junto con otros periodistas de ese medio de comunicación, acudieron a este Tribunal y formularon el presente amparo en contra del Nombre138 Nombre01, así como de la Ministra de Salud, por habérsele girado a Dirección02 (sitio propiedad de Grupo Nación S.A. al cual pertenece también el referido periódico), una orden sanitaria de cierre total de sus actividades en virtud de existir presuntos problemas relacionados con los accesos viales a dicho sitio. Concretamente, argumentan que dicha orden se ejecutó, de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Nombre140 respecto a la capacidad de la vía de acceso al establecimiento, los cuales fueron aportados y comunicados días después y resultan cuestionables.

Además, señalan que se les exigió presentar un plan remedial que abarque la solución a la problemática de los accesos al parque, pese a que los inspectores del Ministerio recurrido, durante la inspección realizada, no encontraron problema alguno con estos y pese a que las autoridades del MOPT emitieron un informe exclusivamente sobre las vías públicas ubicadas afuera de dicho sitio. Mencionan que, tanto el Alcalde de Alajuela como líderes comunales, han coincidido en que los congestionamientos viales no se pueden atribuir solamente a las actividades realizadas en Parque Viva, habida cuenta que se debe tomar en cuenta concomitantemente el rápido desarrollo habitacional y comercial que se ha producido en la misma zona, sea, La Guácima de Alajuela. Indican que fue el Estado el que creó el problema con su anuencia a la expansión urbanística de la zona, sin proveer la infraestructura pública necesaria.

Sostienen que Parque Viva, al momento del cierre, contaba con todos los permisos exigidos en su momento (entre estos, el estudio de planificación vial aprobado en el año 2014), y que, incluso, recientemente, se afirmó que las instalaciones son idóneas para llevar a cabo las actividades que se organizan. Agregan que existe un proyecto vial para remediar el problema (construcción de un acceso a la Ruta Nacional No. 27 de cuatro carriles), para el cual se tramitaron la mayoría de los permisos; empero, a la fecha, no ha sido finalmente aprobado por el MOPT e, incluso, el Nombre138 Nombre01 lo ha descalificado públicamente, refiriéndose a su intención de no permitirlo, pese a que este sería financiado por Grupo Nación. Señalan que como no se logró hallar una deficiencia en el Parque Viva, se decidió que los defectos se encontraban en la vía pública, donde no corresponde a los particulares, sino al Estado, proveer el remedio.

Cuestionan que el problema no es Parque Viva, sino la infraestructura pública que poco ha avanzado en estos años para adaptarse a la densidad habitacional desarrollada después de su puesta en funcionamiento. Afirman que todo lo anterior les imposibilita, además, ejercer un adecuado derecho a la defensa. En virtud de lo anterior, solicitan que se acoja este recurso de amparo, y se anule la suspensión temporal del permiso sanitario de funcionamiento del Parque Viva, así como los actos administrativos que la sustentan.

En su descargo, la Ministra de Salud hizo referencia en su informe a la denuncia planteada el 5 de julio de 2022 en contra del funcionamiento de Parque Viva y al trámite realizado con ocasión de esta. Grosso modo, señaló que, en virtud de esa denuncia se realizó una inspección por parte de las autoridades del Área Rectora de Salud de Alajuela 2, en la cual concluyeron que dicho establecimiento cumple con condiciones físico-sanitarias y estructurales a lo interno de estas, por lo que se recomendó trasladar la denuncia al MOPT para que este realizara una valoración de la situación (estado de calles, dificultad de acceso, etc.). Afirma la Ministra que, “así las cosas”, por oficio No. MS-DM-5754-2022, solicitó a las autoridades del MOPT criterio técnico respecto a las calles de acceso al recinto comercial. Menciona dicha autoridad que este último informe fue entregado por las autoridades del MOPT y que en este se indicó que correspondía a la Municipalidad de Alajuela otorgar los permisos de acceso y que la vía de ingreso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado.

Asimismo, la Ministra señala que, posteriormente, el Comité Asesor Técnico de Concentraciones Masivas acordó proponer el giro de una orden sanitaria de cierre a Parque Viva para eventos masivos, así como solicitarse un plan remedial. Indica dicha autoridad que, efectivamente, el 8 de julio de 2022, se le notificó al representante de Parque Viva la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, en la cual se indicó que, en virtud de lo señalado por el MOPT y el citado Comité de Concentraciones Masivas, se ordenaba la suspensión temporal del permiso sanitario de funcionamiento hasta contarse con criterios técnicos requeridos al Cuerpo de Nombre140 y a la Cruz Roja respecto a la capacidad de la vía de acceso al establecimiento por las unidades de primera respuesta, los cuales estaban siendo gestionados por el Ministerio de Salud. También, señala que se les solicitó presentar un plan remedial que solvente el problema de accesos al parque.

Afirma la Ministra que, posteriormente, fueron emitidos informes técnicos por parte del Cuerpo de Bomberos, de la Cruz Roja y del Sistema de Emergencias 9-1-1, de los cuales se desprende lo siguiente: Que deben existir medidas preventivas para reducir los riesgos como planes de emergencia que definan rutas de acceso suficiente con la amplitud necesaria que permita una respuesta eficaz en caso de una emergencia. Que las vías públicas de la comunidad de La Guácima resultan insuficientes para el rápido acceso de unidades de emergencia, lo cual se puede agravar ante eventos de concentración masiva. Que se requiere un acceso rápido y oportuno de las unidades de rescate especializadas, lo cual se dificulta por la longitud de las unidades extintoras. Adicionalmente, la Ministra de Salud señala que, según lo informado por el Sistema de Emergencias 9-1-1, cuando hay eventos de concentración masiva ingresa un número mayor de denuncias (por vehículos mal estacionados, embotellamientos, riñas por no poder salir, colisiones, etc..

Afirma que, en consecuencia, sí existe una situación de riesgo potencial en el lugar, por falta de un acceso seguro y fluido al sitio y que el acto administrativo en cuestión lo que busca es evitar poner en riesgo la salud, la seguridad y la vida de los que asisten a los eventos, así como la de aquellos que viven en los alrededores de Parque Viva, quienes, a su vez, requieren un acceso fluido a sus comunidades y, de ser necesario, un adecuado acceso de los medios de socorro. Por esto, afirma que es indispensable presentar el plan remedial solicitado “el cual debe abarcar en su contenido la solución a la problemática de acceso en las comunidades de La Guácima de Alajuela, ante la realización de actividades de concentración masiva”. Agrega la Ministra que los actos administrativos fueron recurridos y desestimados en respeto al derecho a la defensa y que la medida de suspensión temporal de actividades se mantendrá hasta que se presente, se apruebe e implemente un plan remedial que garantice que las actividades de concentración masiva de personas en Parque Viva no conlleve el colapso de las vías de acceso, no genere molestias a las comunidades vecinas y permita el ingreso de vehículos y personal de primera respuesta de forma pronta y segura.

Menciona también que si existen otras actividades que no colapsan las vías, los representantes legales del establecimiento deben indicar en el plan remedial solicitado cuáles son estas, así como la cantidad de personas por actividad, a efecto que no superen lo señalado en el criterio técnico emitido por el MOPT. Sostiene la Ministra de Salud que lo actuado se ha llevado a cabo para proteger y preservar el medio ambiente, la salud y la vida de las personas, por lo que no es posible alegar la existencia de derechos adquiridos o situaciones jurídicas consolidadas. Además, afirma que su actuación se encuentra ajustada a derecho y no puede brindar un trato diferenciado o privilegiado al medio de comunicación, tal y como se pretende. Finalmente, indica que en este caso se ha aplicado el principio precautorio en materia sanitaria y que la denuncia se atendió y resolvió apegados a lo dispuesto en el ordinal 41 constitucional.

Por su parte, el Nombre138 Nombre01, sobre este tema particular, señaló en el informe rendido a esta jurisdicción constitucional que la denuncia planteada en contra de Parque Viva se atendió con la mayor rapidez y disposición posible en aras de proteger a la ciudadanía. Expone que vecinos de La Guácima de Alajuela plantearon ante el Ministerio de Salud una denuncia anónima donde explicaron lo que han sufrido por años con este lugar y las consecuencias que podrían ocurrir en caso que no se tomen las medidas necesarias de forma urgente. Refiere a algunas noticias publicadas sobre el particular, mediante las cuales se refleja el malestar de algunos vecinos con el funcionamiento de dicho establecimiento. Afirma que, una vez recibida la denuncia, el Ministerio de Salud convocó a sesión al Comité Asesor Técnico en Concentraciones Masivas para analizar el caso y este, luego de examinar, a su vez, el informe técnico rendido por la Dirección General de Ingeniería de Tránsito (donde se concluye que cuando se realizan las concentraciones masivas en el Parque Viva, la vía que da acceso no tiene capacidad suficiente para el manejo del tránsito generado), acordó proponerle a las autoridades sanitarias una orden de cierre para eventos masivos y solicitar concomitantemente un plan remedial para las condiciones denunciadas.

Por ende, siguiendo dicha recomendación, menciona que el Área Rectora de Salud de Alajuela 2 emitió la orden sanitaria en cuestión, mediante la cual se suspendió de forma temporal el permiso sanitario de funcionamiento para eventos de carácter masivo hasta que se aporte el referido plan remedial, el cual no ha sido presentado. Apunta que las autoridades han exigido a otros grupos comerciales la construcción de accesos de ingreso a centros comerciales de gran envergadura cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, tal es el ejemplo de EPA en Desamparados o de City Mall en Alajuela, los que realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos. Agrega el mandatario que se cuenta con el criterio de la Dirección Regional de la Fuerza Pública de Alajuela, donde se señala que La Guácima está catalogada como sensible ya que convergen diferentes acciones delictivas y que las aglomeraciones de vehículos y de personas en las afueras de Parque Viva, reduce la movilidad policial y produce un incremento en las llamadas de vecinos al 911, debido a incidentes de alteración al orden público.

Expone que la Fuerza Pública hizo alusión a un incidente ocurrido el 7 de mayo de 2022, donde se debió brindar asistencia a los cuerpos de socorro para trasladar a un paciente, ya que la cantidad de personas impedía el movimiento de la ambulancia con rapidez. Agrega que el Cuerpo de Bomberos, por su parte, sostuvo que las comunidades aledañas a Parque Viva, al igual que el mismo sitio, se ven afectadas, ya que el tiempo de respuesta de las unidades de Nombre140 aumenta de forma considerable debido a las condiciones de las vías circundantes al recinto. También, aduce que ante la incredulidad que generó el hecho que el gobierno local le otorgara permisos de funcionamiento a Parque Viva, el Instituto Nacional de Vivienda y Urbanismo solicitó a la Municipalidad de Alajuela el expediente del proyecto. Afirma que producto del análisis realizado a dicho expediente se hallaron una serie de situaciones muy preocupantes relacionadas con el permiso de uso de suelo y la viabilidad ambiental otorgada.

Igualmente, indica que se demostró la falta de presentación de un estudio de impacto vial (que midiera el impacto de flujo vehicular asociado a las actividades que se desarrollan en Parque Viva), la falta de autorización del Cuerpo de Bomberos, así como que no se exigió o solicitó alguna mejora a la vialidad cantonal que da acceso al parque. Sostiene que no se trata de gestiones antojadizas, sino de acciones tendentes a proteger la vida de los costarricenses. Menciona que el propio Colegio de Periodistas de Costa Rica sostuvo que la situación del Parque Viva debe ser abordada desde el principio de legalidad, para lo cual existe la vía recursiva de impugnación del acto administrativo que ordenó la suspensión del permiso sanitario de funcionamiento, lo cual, además, se resuelve con la presentación de un plan remedial. Refiere que en nota publicada el 27 de abril de 2021, el Grupo Nación aceptó que las condiciones de acceso a las instalaciones del Parque Viva no son las mejores.

Sostiene que al Grupo Nación se le otorgó la posibilidad de presentar un plan remedial y, también, ha tenido la posibilidad de recurrir la resolución administrativa. Menciona que no es cierto que la Administración haya clausurado definitivamente el recinto. Afirma que el diario La Nación sigue operando, pero esto no significa que no se les vaya a exigir ajustarse a derecho cuando sea evidente y manifiesto que lo hacen de forma ilegítima y en detrimento de los derechos de los costarricenses. Además, sostiene que todas las decisiones se han tomado de acuerdo con parámetros técnicos, conforme una denuncia presentada por la misma ciudadanía.

Ahora, una vez señalados los argumentos expuestos por ambas partes (recurrentes y autoridades recurridas del Ministerio de Salud y Presidencia de la República), conviene hacer un repaso general por los hechos que se tienen por acreditados en este proceso de amparo, respecto a este reclamo en particular.

Así, conviene destacar primeramente que se tiene por acreditado que Grupo Nación (del cual forma parte el Diario La Nación y, que es precisamente el medio para el cual trabajan los recurrentes), adquirió las instalaciones donde operaba anteriormente el llamado Autódromo La Guácima y creó Parque Viva.

Consta también que el Parque Viva obtuvo los permisos requeridos, por lo que en el año 2015 le fue otorgado el respectivo permiso sanitario de funcionamiento. Ese mismo año, dicho establecimiento fue entonces reinaugurado por el Grupo Nación. Como parte del cumplimiento de estos requisitos, se tiene por demostrado que por oficio No. DGIT-ED-5935-2014 de 1° de septiembre de 2014, una ingeniera de la Unidad de Permisos y el Jefe del Departamento de Estudios y Diseños, ambos de la Dirección General de Ingeniería de Tránsito del MOPT, señalaron lo siguiente:

“(…) SOBRE EL ESTUDIO DE IMPACTO VIAL Una vez realizada la revisión del estudio de impacto vial presentado (para las condiciones de funcionamiento típico del Centro de Eventos La Guácima), esta Unidad indica que desde el punto de vista funcional no tiene objeción alguna con el proyecto. Lo anterior se debe a que esta Unidad comprobó que con la implementación de las medidas de mitigación planteadas a partir del análisis de capacidad realizado, los niveles de servicio (NDS) y longitudes de cola logran mantenerse en niveles adecuados. La aprobación del presente EIV tiene vigencia durante un año si las condiciones del tránsito y la vialidad aledaña no cambian significativamente y el proyecto es construido antes de finalizado este periodo, en caso contrario esta Dirección General se reserva el derecho de solicitar la actualización del estudio. Además, se le recuerda que la autorización corresponde exclusivamente para el proyecto presentado, por lo que cualquier modificación en tamaño, uso o de cualquier otra índole debe ser analizada por la Dirección General de Ingeniería de Tránsito para evaluar las nuevas condiciones, de lo contrario esta autorización pierde su validez (…)”.

Asimismo, se tiene que, por oficio No DVT-DGIT-ED-2015-4056 de 8 de octubre de 2015, ingenieros de la Unidad de Permisos de la Dirección General de Ingeniería de Transito del MOPT, indicaron lo siguiente:

“(…) Se les comunica que, se les recibe las ampliaciones y la señalización en la intersección # 3 con la Dirección04 para el Proyecto: Centro de Eventos La Guácima. ubicada en el Distrito N° 05: la Guácima, Cantón NB 01: Alajuela, Provincia N° 02: Alajuela, en la propiedad inscrita ante el Catastro Nacional con el numero SJ-1244439- 2007, cuyo permiso fue tramitado por este Departamento bajo el expediente ED-AC-13-0081, según el diseño que consta en las láminas 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10 firmadas por el profesional responsable, la ingeniera Nombre39, IC-16371. Lo anterior debido a que en inspección se constató la realización por parte del interesado de la respectiva señalización vertical y horizontal a satisfacción, acorde con las directrices del Departamento de Señalización Vial de esta Dirección General, y de conformidad con el Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA). Con base en lo anterior, esta Unidad Técnica no tiene objeción alguna, desde el punto de vista funcional y de señalización (no incluye calidad de la demarcación horizontal y vertical), en el uso del acceso en referencia (…)”.

También, consta que las autoridades del Ministerio de Salud renovaron al Parque Viva el permiso sanitario de funcionamiento No. MS-DRRSCN-DARSA2-RPSF-0177-2019 con vigencia hasta febrero de 2024.

Esta Sala tiene igualmente por demostrado que el 16 de diciembre de 2021, por oficio No. MS-DRRSCN-DARSA2-4070-2021, el Director del Área Rectora de Salud Alajuela 2 del Ministerio de Salud otorgó al Parque Viva visto bueno a los aforos declarados para las instalaciones de anfiteatro, salones y graderías del autódromo. En ese particular, se permitieron 18203 ocupantes en el anfiteatro, 12450 ocupantes en salones y 2901 ocupantes en graderías. Aunado a ello, consta que por oficio No. MS-DRRSCN-DARSA2-0163-2022 de 20 de enero del año en curso, esas mismas autoridades dispusieron la ampliación del aforo de graderías de Parque Viva a 8841 ocupantes.

Se tiene también por acreditado que a una hora no precisa del día 5 de julio de 2022, se presentó ante el Despacho de la Ministra de Salud una denuncia anónima en contra del funcionamiento del Parque Viva, a la cual se le asignó el número 243-2022. En tal oportunidad, el denunciante completó, en el machote o formulario establecido para presentar dicha gestión, los siguientes aspectos relacionados con el motivo de su denuncia “2.1. Denuncias por asuntos relacionados con condiciones estructurales de edificios: a) Problemas estructurales (estado de paredes, techos, pisos, entre otros) (…) c) Incumplimiento de plan de emergencias para prevención y protección contra incendios (…) f) Condiciones de seguridad e higiene”. Adicionalmente, el denunciante expuso expresamente su inconformidad respecto al acceso al Parque Viva y los problemas que se suscitan en las calles que conllevan a este sitio cuando se realizan conciertos masivos. Concretamente, manifestó:

“(…) Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. El problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo. Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, tiroteos, entre otros eventos trágicos que podrían ocurrir en eventos masivos.

Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar. En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE (sic) LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes Nombre01 y otorgarles el mayor grado de bienestar.

Como prueba adjunto 8 fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, adjunto 2 notas de medios de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos (…)”. (El destacado no forma parte del original).

Consta que por oficio No. MS-DM-5754-2022, rubricado digitalmente a las 12:24:14 hrs. de 5 de julio de 2022, la Ministra de Salud, con carácter de urgencia, solicitó al Ministro de Obras Públicas y Transportes y a la Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado Parque Viva. En tal ocasión, se indicó expresamente lo siguiente: “(…) El criterio técnico se requiere para dilucidar aspectos estructurales y de seguridad humana. Por ello, deben considerarse los aspectos de capacidad que tienen las carreteras en el escenario de la enorme cantidad de vehículos y personas que al mismo tiempo asisten a los eventos masivos de dicho lugar, en relación con aspectos de eventuales emergencias, respuestas de acceso de cuerpos de socorro, riesgos por situaciones de conflictos, etc. (…)”. Se determinó también que, dicha Ministra, mediante oficio No. MS-DM-5756-2022, rubricado digitalmente el 5 de julio de 2022 a las 12:38:24 hrs, trasladó dicha denuncia para su atención a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte de ese mismo Ministerio (oficina ubicada en Heredia). Además, –según el respectivo sello físico–, consta que la mencionada denuncia fue recibida en el Área Rectora de Salud de Alajuela 2 a las 12:41 hrs. de ese mismo día 5 de julio.

Se tiene por acreditado que al ser las 13:50 hrs. de 5 de julio de 2022, autoridades del Área Rectora de Salud de Alajuela 2 llevaron a cabo una inspección físico sanitaria en el Parque Viva, producto de la cual se elaboró el informe No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, donde se consignó lo siguiente:

“(…) Según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-IT-1639-2022 el día 05 de julio del 2022 al ser las 13:50 horas se realizó la visita específica en sitio para valorar lo expuesto por la parte denunciante. Respecto a la problemática denunciada, en cuanto al apartado de problemas estructurales, a lo interno de las instalaciones del recinto durante el recorrido realizado no se constataron problemas estructurales visuales relacionados con aspectos físico-sanitario, el estado de las paredes, pisos, servicios sanitarios y demás espacios de convivencia humana no presentaba problemas observables. En el apartado de incumplimiento del plan de emergencia, en sitio se evidenció la presencia de cuatro planes de emergencias, correspondientes a la propia sectorización que la empresa implementa para sus instalaciones, teniendo un plan específico para el Centro de Eventos, El anfiteatro Coca Cola, el Circuito de Competencias y las Áreas Comunes, en sitio se corroboró que las señalizaciones respectivas se encontraban instaladas, se evidenció la presencia del equipo de combate contra incendios y de los respectivos implementos (comida, botiquín, férulas, entre otros). Con respecto a las condiciones de seguridad e higiene, durante el recorrido no se evidencia presencia de riesgos o condiciones inseguras que puedan afectar la integridad de los colaboradores de la empresa.

En cuanto a lo señalado por el denunciante sobre el problema vial, cabe resaltar que éste no es competencia del Ministerio de Salud, sin embargo, se realizó el análisis de los puntos de acceso y salida de las instalaciones, como se muestra en el anexo 1, las instalaciones cuentan con cuatro puntos de acceso para ingreso y salida de vehículos y se cuenta con una capacidad de 940 automóviles en el parqueo cercano al acceso 2, además de contar con espacio para 3000 vehículos en el sector del circuito de competición que se encuentra cerca del Dirección06, además de esto se muestra que los cuatro accesos se encuentran interconectados a lo largo de las instalaciones (se realizó un recorrido para comprobar esto), lo cual favorece la salida de los vehículos. 3. CONCLUSIÓN. Por lo expuesto, se puede concluir que las instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros) (…)”. (El destacado no forma parte del original).

Este Tribunal tiene por demostrado que, en virtud de la gestión planteada el 5 de julio de 2022 a 12:24:14 hrs. por la Ministra de Salud, la Viceministra de Obras Públicas y Transportes le remitió a esta última el oficio No. DVTSV-2022-0341 de fecha 6 de julio del 2022, mediante el cual se solicitó dejar sin efecto el oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334 enviado por correo electrónico el día anterior en la tarde (sea, el 5 de julio de 2022), con el objetivo de incluir más información al análisis del acceso al Parque Viva. Asimismo, en dicha ocasión, se adjuntó el oficio No. DVT-DGIT-2022-339, suscrito ese mismo 6 de julio de 2022 por el Director General de Ingeniería de Tránsito, donde se indicó expresamente lo siguiente:

“(…) 1. El Parque Viva es un recinto que abrió sus puertas en el 2015 y se utiliza para realizar diversos tipos de eventos, como por ejemplo: eventos deportivos de motores, congresos, ferias, así como eventos de concentración masiva como conciertos y festivales. 2. De acuerdo a la información brindada en la página Web del Parque Viva, la capacidad del recinto es de hasta 20.000 mil personas. Además, cuenta con 4.900 espacios para estacionamiento privado, que se puede ampliar hasta en 6.000 espacios utilizando la pista de carreras. 3. En la actualidad, la Dirección General de Ingeniería de Tránsito no tiene ninguna solicitud relacionada con el acceso existente del Parque Viva. Tampoco ha realizado ningún estudio funcional en las vías con el escenario de un evento masivo como los que se realizan en el lugar. 4. El Parque Viva de (sic) localiza frente a una ruta cantonal denominada Dirección02.

Al ser una ruta cantonal, le corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso (…) 5. La Dirección05 es una calle urbana de dos carriles, un carril por sentido de circulación. Este tipo de vías podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido. De acuerdo a las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada. De acuerdo a los datos antes indicados, se puede asegurar que en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Bajo un escenario conservador, sin considerar estacionamientos periféricos al parque ni la utilización de la pista de carreras, tendríamos una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar (…)”. (El destacado no forma parte del original).

Consta que en virtud de todo lo anterior, el Comité Asesor Técnico de Concentraciones Masivas celebró una sesión extraordinaria el 7 de julio de 2022 a las 14:30 hrs. con la presencia de la Ministra de Salud en calidad de coordinadora, del Ministro de Obras Públicas y Transportes, de funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. En el acta de dicha sesión No. 28643-S-MOPT-SP, se consignó lo siguiente:

“(…) Con base en las competencias que establece el artículo 4° del decreto ejecutivo 28643 se procede a conocer el caso. El señor Nombre40 del Ministerio de Salud, a petición de la señora Ministra, lee el documento del Área Rectora de Salud Alajuela número MS-DRRSCN-DARSA2-1641-2022 y que se relaciona con el oficio MS-DM-5756-2022 de la Ministra de Salud. El señor Nombre41 interviene. Pone en perspectiva la situación de las calles de acceso. El señor Nombre42 lee el informe DVT-DGIT-2022-339 (dirigido a la Ministra de Salud con la nota DVTS-2022-0341). La señora Ministra interviene. Don Nombre43 del Cuerpo de Nombre140 interviene y apunta las dificultades que tiene el cuerpo de Nombre140 para ingresar, por el tipo de unidades de emergencias que se tienen, las cuales miden 11 metros de largo y 3 metros de ancho, por lo que se nos dificulta el paso en las condiciones de tener vehículos a ambos lados.

Tiene que ampliarse las vías de acceso o que exista otro acceso donde haya espacio para el tránsito y acceso de unidades de emergencia. El señor Nombre41 interviene. Señala lo inadecuado del uso del suelo. Debe ser ampliada la ruta para garantizar un flujo adecuado en los eventos y en las emergencias durante los eventos. Debe mejorarse esa ruta cantonal terciaria. Hay riesgo para la vida humana. Interviene don Nombre44 de la Comisión Nacional de Emergencias. Hay un permiso de funcionamiento vigente. Hay que tener cautela y ver la realidad del País. Interviene don Nombre40. Hay otros lugares con situaciones similares. Interviene la señora Ministra de Salud, haciendo una réplica de lo manifestado por don Nombre145. Interviene don Nombre45. El recinto ha presentado problemas desde que era el Dirección03. Solo tiene una calle de acceso y eso presenta un problema porque hay que pasar por zonas residenciales.

Aún no hay un reglamento de eventos masivos. En este caso Parque Viva no es adecuado para eventos masivos. Nombre46, Interviene he (sic) indica que desde el 01 de enero del 2022, hay 18 reportes en lo que va del año de problemas de tránsito, más de 30 colisiones, 4 reportes de vehículos mal estacionados, 5 riñas, 3 incidentes de eventos contra el orden, entre otros reportes. Interviene don Nombre47. Manifiesta preocupación por la cantidad de ambulancias que atienen cada evento, donde a veces no supera una sola unidad.

ACUERDO: Vistos los oficios mencionados, y la recomendación del Ministerio de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una orden sanitaria de cierre para eventos masivos del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual de ser puesto en conocimiento de este Comité Asesor Técnico de Concentraciones Masivas (…)”. (El destacado no forma parte del original).

Las autoridades del Ministerio de Salud, del MOPT, del Cuerpo de Bomberos, de la Comisión Nacional de Emergencias y de la Cruz Roja Costarricense, a través de sus representantes ante dicho Comité, votaron a favor de dicha propuesta.

Consta también que, con fundamento en lo anterior, las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud, el 8 de julio de 2022 emitieron la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (rubricada electrónicamente a las 12:37:21 hrs.), mediante la cual se dispuso el cierre de Parque Viva, conforme los siguientes términos:

“(…) En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud.

Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades (…)”. (El destacado no forma parte del original).

Adicionalmente, se tiene por demostrado que en dicho acto administrativo se hizo referencia a las consecuencias de no cumplir lo ordenado y se indicó que contra este procedía la interposición de los recursos de revocatoria con apelación en subsidio dentro de los cinco días hábiles posteriores a su notificación. Esta orden sanitaria fue notificada al representante de Parque Viva el día 8 de julio de 2022 a las 12:40 hrs. (vía correo electrónico), indicándose que se adjuntaban “anexos de importancia”. Además, la notificación personal se llevó a cabo ese mismo día a las 14:15 hrs..

Ahora, se tiene por acreditado en autos que el mismo 8 de julio de 2022, la Ministra de Salud, por oficio No. MS-DM-5870-2022 firmado digitalmente a las 17:05:24 hrs, solicitó al Director del Cuerpo de Nombre140 y a la Presidenta de la Cruz Roja Costarricense “(…) informes detallados y amplios, desde sus respectivos campos de competencias, con relación a la situación de Parque Viva en La Guácima de Alajuela, en el marco de la realización de eventos masivos y las situaciones de riesgo para la salud y la vida humana. Lo anterior como complemento al tema tratado en la reunión del Comité Asesor Técnico en Concentraciones Masivas del pasado jueves 7 de julio de 2022. Lo anterior a la mayor brevedad posible (…)”.

Consta que, en atención a la anterior solicitud, se presentaron ante el Ministerio recurrido los siguientes informes técnicos:

• a)El informe técnico No. CBCR-027150-2022-OPB-00741 de fecha 10 de julio de 2022, suscrito por un funcionario de Operaciones de Bomberos, mediante el cual se consignó lo siguiente:

“(…) Con relación a la situación del Parque Viva, ubicado en La Guácima de Alajuela, en el marco de la realización de eventos masivos y situaciones de riesgo para la salud y la vida Humana, indicó (sic): Las unidades extintoras del Benemérito Cuerpo de Nombre140 de Costa Rica, tienen una longitud aproximada de 11 metros y un ancho de 3 metros; esto hace que se requiera de suficiente espacio para poder maniobrar, ya sea cerca de la escena de incendio o durante la trayectoria hacia el lugar de la emergencia. La medida de ancho de la calle que se utiliza de forma normal para llegar a Parque Viva en la mayoría de su trayectoria mide aproximadamente seis metros, como se puede observar en esta fotografía, un autobús y un vehículo liviano, no pueden transitar de forma normal, para transitar, uno de ellos dos debe detenerse y dar paso (…) Igualmente existen tramos donde las medidas se reducen casi a cuatro metros, es decir una unidad de Nombre140 requiere de todo el espacio para poder transitar, tomando como referencia las siguientes fotografías (…) Debido al ancho de la calle, existen tramos donde no se puede realizar las maniobras de adelantamiento (…) Debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Nombre140 aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades (…)”.

• b)El informe técnico No. CRC-GG-SO-OF-074-2022 de 11 de julio de 2022, suscrito por el Sub Gerente Operativo de la Cruz Roja Costarricense, donde se señaló lo siguiente:

“(…) Como institución de primera respuesta se cuenta con amplia experiencia en la atención de eventos masivos en diferentes eventos y lugares, la Cruz Roja Costarricense ha tenido que atender pacientes en función de las actividades realizadas en el mismo, esto obedece a la cantidad de personas que asisten a las diferentes actividades que dependiendo del mismo, pueden ser varios miles de personas. (…) En el caso de los eventos que se desarrollan en el Parque Viva, es necesario aclarar que la Cruz Roja Costarricense no cubre tales actividades, sino que las empresas organizadoras del evento, contratan empresas privadas de ambulancias que brindan este tipo de servicios, siendo necesario indicar que en el país existen cerca de 70 empresas privadas que brindan servicio prehospitalario de traslado de pacientes, en consecuencia se aclara los videos de varias ambulancias que circulan en redes sociales, ligadas a la atención de casos de emergencia en Dirección09 no son de Cruz Roja.

Así las cosas, nuestra recomendación en este Comité Asesor Técnico ha sido históricamente manifestar la importancia de que se genere una regulación para el tema de eventos masivos, sabemos que el Ministerio de Salud tiene el Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud y que el Ministerio de Seguridad Pública cuenta con el Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. Sin embargo, hace unos 6 años se sugirió trabajar con el Algoritmo de Maurer que lo trabajan en Alemania. En términos generales, según la experiencia de la Cruz Roja Costarricense, cualquier lugar en el que se realizan eventos masivos debe tener una entrada y una salida para todos los vehículos que asisten a los eventos, y que permitan una adecuada circulación para los vehículos de emergencia, tanto para atender incidentes en el lugar del evento, como en zonas circundantes, así como vías que permitan la evacuación masiva de los participantes en caso de activarse alguna amenaza y contar con un Plan de Emergencias actualizado, que contemple una adecuada proporción de ambulancias en función de la cantidad de asistencias al evento (…)”.

• c)El informe técnico No. CRC-GG-OF-012-2022 de fecha 12 de julio de 2022, suscrito por el Gerente General de la Asociación Cruz Roja Costarricense –en seguimiento a lo señalado en el anterior informe No. CRC-GG-SO-OF-074-2022–, mediante el cual se informó lo siguiente:

“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos.

En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Nombre140 de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades.

En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Nombre140 para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. 3. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos.

Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Caba destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.

También, consta que se aportaron ante la Ministra de Salud otros informes relacionados con este mismo tema, sea, los siguientes:

El informe técnico No. 911-DI-2022-2202 de 11 de julio de 2022, a través del cual la Directora del Sistema de Emergencias 9-1-1 se refirió a eventos acaecidos en zonas circundantes al Parque Viva durante unas fechas específicas, sea, 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (v. gr. situaciones relacionadas con problemas de tránsito, vehículos mal estacionados, riñas de personas, una persona inconsciente y otra extraviada, etc.).

Y también, el oficio No. DM-2022-3121 de 11 de julio de 2022, a través del cual el Ministro de Obras Públicas y Transportes señaló lo siguiente:

“(…) En relación con la situación que se ha presentado con el cierre temporal sujeto a acciones remediales del Parque Viva, el Ministerio de Obras Públicas y Transportes emite el siguiente criterio considerando que: El Parque Viva contiene múltiples usos de suelo que pueden producir concentración masiva, entendida como eventos temporales que reúnen extraordinariamente a una cantidad de personas bajo condiciones de aglomeración en espacios físicos abiertos y/o cerrados, que por sus características de sitio suponen un escenario de riesgo o de amenaza que obligan a medidas preventivas de control de uso del espacio. El Parque Viva tiene 9000 m2 de nave industrial, lo cual tiene una atracción estimada de 6593 vehículos basado en referencia de 3 eventos similares en Reino Unido (…) El Parque Viva tiene una capacidad de 20.000 personas y usando una tasa de ocupación de 3 personas por vehículo (…) nos da 6667 vehículos por hora. Se estima que la calle adyacente tiene capacidad máxima de 800 vehículos por hora para un nivel de servicio E, pues es una vía de 4 m a 6 m de ancho en doble sentido de circulación. SE RECOMIENDA: Una concentración máxima de 2400 personas en evento (sic) masivos de acuerdo a situación actual de accesos y vías aledañas para poder garantizar un flujo adecuado de vehículos de acceso y salida al sitio (…)”.

Ahora, se demostró igualmente que los anteriores cinco informes técnicos (No. CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 y No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, No. 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el No. DM-2022-3121 del Ministerio de Obras Públicas y Transportes), fueron puestos en conocimiento del representante legal de Parque Viva hasta el día 15 de julio de 2022, mediante oficio No. MS-DRRSCN-DARSA2-1724-2022. En este último oficio se confirmó también lo dispuesto en la citada orden sanitaria y se consignó expresamente lo siguiente:

“(…) Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022 (sic) (…)”.

Asimismo, se ha tenido por demostrado que un día antes de notificarse este último oficio, sea, el 14 de julio de 2022, los representantes Nombre03 formularon un recurso de revocatoria y de apelación en subsidio en contra de lo dispuesto en la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022. Recursos que, según informó la Ministra de Salud, ya fueron resueltos y desestimados.

Adicionalmente, es importante tomar en cuenta otros hechos que se han tenido por demostrado en este amparo, los cuales guardan relación con los anteriormente expuestos.

Así, nótese que consta en autos que a manos del Nombre138 Nombre01 llegó el oficio No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de 10 de julio de 2022, mediante el cual el Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela le informó el Viceministro de Seguridad Pública sobre el entorpecimiento que se presenta en la atención de incidentes de carácter policial en el perímetro externo a Parque Viva cuando se realizan actividades en dicho establecimiento. En este oficio se afirmó que las actividades referidas generan enormes embotellamientos, lo cual representa un aumento sustancial en los tiempos de respuesta policial ante las emergencias reportadas vía 911 y que son resorte de la Fuerza Pública. Además, se indicó que las actividades masivas provocan un incremento de los delitos contra la propiedad y se recurre más a la Fuerza Pública por alteración al orden público, riñas, violencia contra mujeres, conducción temeraria, consumo de alcohol y drogas en vía pública, etc..

Por ende, se sostuvo que “(…) la afectación al servicio policial durante los eventos masivos en la zona referida, es evidente, notoria, frecuente y repetitiva; dado que el impacto de incidencia delictiva diversa, que se genera por el conglomerado enorme de visitantes; afecta el normal desenvolvimiento de las actividades de la población de la zona, y las acciones policiales de carácter diaria (…)”. Asimismo, consta que por oficio No. PE-243-07-2022 de 29 de julio de 2022, la Presidenta Ejecutiva del INVU le informó al Nombre138 Nombre51, una serie de aspectos relacionados con el llamado Parque Viva, luego de haberse realizado una revisión del expediente que consta en la Municipalidad de Alajuela. Grosso modo, en dicha ocasión, se indicó que los usos de suelo otorgados no son conformes con el plan regulador aprobado en el 2004; que la viabilidad ambiental fue otorgada solo para mejoras en el autódromo; que no existe registro de la presentación de un estudio de impacto vial al MOPT o al municipio que midiera el impacto del flujo vehicular, pues no fue solicitado y que, tampoco, fue requerida alguna mejora a la viabilidad cantonal que da acceso al complejo.

Se demostró también que el Municipio de Alajuela, el 3 de agosto de 2022, a través de su página oficial de Facebook, se pronunció y refutó lo consignado por el INVU. Esto, conforme los siguientes términos:

“(…) CON RELACIÓN A LAS PUBLICACIONES DEL CRITERIO EMITIDO POR EL INVU SOBRE PARQUE VIVA, QUE HAN CIRCULADO EN DIVERSOS MEDIOS DE COMUNICACIÓN EL DÍA DE HOY. Sobre la información que ha circulado en diversos medios de comunicación sobre el proyecto PARQUE VIVA basado en un informe emitido por Instituto de Vivienda y Urbanismo, INVU, como primero de los aspectos, debe indicarse que la Municipalidad de Alajuela no ha sido notificada de dicho informe, de manera que nuestro conocimiento se limita a las publicaciones realizadas por esos medios de comunicación, asimismo, se trata de apreciaciones de dicha institución sin consultas a este municipio. Es de importancia aclarar algunos puntos. 1. USO DE SUELO. La zonificación de la finca Dirección07, no fue modificada, pues según el Plan Regulador Urbano vigente que aplica a la especie, la mencionada finca se encuentra en una zona denominada zona verde, Regulada en el Art 56, Plan Regulador Urbano.

Pasa por alto en el análisis el INVU, lo establecido en el artículo 60 del Plan Regulador Urbano, que señala que, si pasados 5 años desde la publicación del Plan Regulador la Municipalidad no adquiere estos terrenos destinados a zonas verdes, estos adquieren la zonificación cercana que menos afecte al usuario, lo que fue aplicado en este caso, tal como y se indicó en los usos de suelo, se trata de zona residencial de media densidad. Por lo tanto, los usos de suelo del proyecto son correctos. 2. SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta, y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC.

El título del proyecto, es decir, el Nombre141 con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no efecto la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía). No porque la empresa cambiara el Nombre141 del proyecto, cambia la naturaleza de las obras. 3. SOBRE “LA FALTA DE UNIFORMIDAD EN LOS USOS DE SUELO” El análisis se realizó de forma coincidente y consistente en todos los casos, bajo el principio de legalidad y de inderogabilidad singular de las leyes. Lo único que varió desde el año 2014 y en los sucesivos usos de suelo fue la forma en que se presentó la información. Al expediente se adjuntó una minuta de los usos de suelo que puede corroborarse para confirmar lo indicado. 4. IMPACTO VIAL, El Plan regulador urbano de Alajuela en su articulo (sic) 12.7 solicita la presentación de un estudio de impacto vial para LA APROBACION (sic) FINAL del proyecto, no para el otorgamiento de usos de suelo, es decir, aplica para el permiso de construcción.

Sobre el tema puede observarse los requisitos que solicita la Municipalidad para este proyecto o cualquiera otro, y con base en la normativa que regula la materia. Para la aprobación del final del permiso (sic) de construcción este gobierno local revisa la Viabilidad ambiental otorgada por SETENA, siendo que dicha entidad en su análisis, siempre verifica el impacto vial de los nuevos proyectos. Según la revisión del expediente de SETENA, esta entidad consideró que con lo presentado en planos fue suficiente, y con ello dieron la respectiva aprobación, por lo que se respeta lo indicado en la Ley 8220 y sus reformas, y su Reglamento, de manera que, en apego al principio de respeto de competencias, se respetó el criterio de SETENA. Además, es importante recordar que el proyecto contó con la debida aprobación del Estudio de Impacto Vial por parte de la Dirección de Ingeniería de Tránsito del MOPT, mediante resolución N° DGIT-ED-5935-2014. 5.

ACTAS SOBRE PROCESO CONSTRUCTIVO, Si se otorgó el permiso final, implica la corrección de cualquiera situación que pudo haberse notificado. 6. SOBRE LAS ANOTACIONES DE OTRAS INSTITUCIONES, La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas. Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero (sic) la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que “el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional”. En definitiva, este gobierno local a través de la Actividad Control Constructivo está en la mejor disposición de aclarar cualquier duda que se genere al respecto de este proyecto, ratificamos que todas nuestras actuaciones han sido consecuentes y ajustadas a la normativa que regula la materia (…)”.

Asimismo, es importante tomar en consideración que en este asunto se ha demostrado que Grupo Nación (desde al menos el año 2019, muchos meses previos a que le fuera notificada la orden sanitaria bajo estudio), dio inicio a un proyecto para construir en los próximos años un acceso de cuatro carriles que comunica la Dirección05 con el Parque Viva (o con el proyecto a futuro denominado Ciudad Viva). Este proyecto en el año 2021 y a inicios de 2022, contó preliminarmente con el visto bueno de una serie de instancias gubernamentales. Así, consta que mediante oficio No. DVT-DGIT-ED-2021-1845 de 21 de septiembre de 2021, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, consignaron lo siguiente: “(…) Esta Dirección mantiene su criterio de no objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, emitida el 13 de julio del año en curso mediante oficio DVT-DGIT-ED-2021-1347; por lo que razona pertinente la aprobación del anteproyecto en mención (…)”.

Por oficio No. GCTT 34-2021-0340 de 28 de septiembre de 2021, el Gerente a.i. de Contratación de Vías y Puentes del Consejo Nacional de Vialidad señaló lo siguiente “(…) En relación al proyecto indicado en la referencia, una vez revisado por los ingenieros de las diferentes áreas técnicas de la Dirección de Diseño de Vías y Puentes, se determina que: Se cumplió con la información solicitada; sin embargo, se aclara que, en la etapa de diseño se deben respetar los radios mínimos de rotondas, radios de giro y ejes geométricos para el vehículo de diseño del proyecto. En virtud de lo anterior indicado, se recomienda aprobar este Anteproyecto (…)”. Por oficio No. CNC-APM-SJC-0608-2021 de 12 de octubre de 2021, la Gerente de Proyecto del Concejo Nacional de Concesiones, entre otros aspectos, dispuso otorgar la “No objeción” al anteproyecto de acceso desde la ruta nacional No. 27 a Ciudad Viva. Mediante oficio No. CCAR-2021-373 de 28 de octubre de 2021 el Secretario de la Comisión de Carreteras de Acceso Restringido del Consejo Nacional de Vialidad indicó que dicha comisión había acordado “(…) aprobar el anteproyecto de conformidad con los informes de las unidades técnicas (…)”.

Por oficio No. DVT-DGIT-ED-2022-0088 de 18 de enero de 2022, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, señalaron lo siguiente “(…) Esta Dirección no tiene objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, por lo que razona pertinente la aprobación del proyecto en mención (…)”. Este proyecto, según se desprende de los autos, a la fecha no se ha aprobado.

Consta también que, respecto a este proyecto vial, el Presidente, en conferencia de prensa celebrada el 13 de julio de 2022, manifestó lo siguiente:

“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la Dirección04 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Dirección01 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.

Para efectos de resolver este extremo del recurso, igualmente, es importante tomar en cuenta lo consignado en la noticia publicada el 13 de julio del presente año, titulada “Alcalde de Alajuela: Parque Viva recibió permiso antes de expansión urbanística en la Guácima”, cuyo contenido es el siguiente:

“(…) Nombre50, alcalde de Alajuela, aseguró que el congestionamiento vial que se genera en la Guácima, Alajuela, no es causado únicamente por el Parque Viva, sino que se debe también al gran crecimiento habitacional del distrito y a los nuevos condominios que se levantaron en la zona. “Ha habido un crecimiento muy importante en el distrito de la Guácima que, sumado a las actividades a la gran cantidad de personas que ingresan al distrito, pues sí, es evidente que genera un congestionamiento vial. “Estoy abierto a negociar y poner el tema sobre la mesa; que hay que generar soluciones viables para el distrito, no hay que achacarlos a X o Y, ni generalizarlo”, explicó Nombre147. “Hay que ver la realidad. El parque tiene casi diez años de construido y, en estos diez años, ha habido un cambio sustancial en el desarrollo urbanístico del distrito de La Guácima, es decir, hay más población y más condominios”, agregó.

Desde el 2014, se han aprobado 44 condominios en el distrito, por ejemplo. Asimismo, el jerarca municipal dijo que, aunque el ayuntamiento ha invertido en ese distrito casi 1000 millones y pronto se iniciará la construcción de un puente que conduce a la comunidad de San Antonio de Alajuela, eso no es suficiente y necesitan más recursos para todo el cantón. “El municipio ha hecho unas inversiones, pero tal vez no las suficientes. ¿Por qué? Porque como gobierno local tenemos recursos limitados y 14 distritos, con una red de más de 421 kilómetros a nivel cantonal que atender. Para esa red, en un municipio como el de Alajuela, no hay recursos suficientes y hay que atender los 14 distritos del cantón, no sólo uno. Hay que hacer mejoras; de eso como alcalde estoy consciente”, informó Nombre147. En setiembre del 2014, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial del Parque Viva y solicitó que se construyeran accesos al sitio desde las distintas rutas que llevan al lugar y se instalara señalización vertical y horizontal, las cuales debían estar listas un año después.

En una inspección realizada por el Ministerio en el 2015, se constató que el inmueble había cumplido lo solicitado. Este miércoles, el Nombre138 Nombre51, aseguró en conferencia de prensa en Dirección06, que el permiso nunca debió darse y que solicitará el expediente a la Municipalidad de Alajuela, al tiempo que solicitará la intervención de la defensora de los Habitantes, Nombre52. En aquella época, el hoy alcalde era regidor y dijo al respecto: “El permiso se dio por competencia de la administración municipal que era el órgano competente de la aprobación del mismo; en el expediente hay permiso de Salud y de muchas instituciones (…)”. (El destacado no forma parte del original).

En ese mismo orden de consideraciones, consta que en sesión de concejo de distrito ampliada celebrada el 13 de julio de 2022, el regidor y residente de La Guácima de Alajuela, Nombre19, se refirió al problema relacionado con el crecimiento urbanístico en dicha zona. Se demostró que, en tal ocasión, dicho regidor manifestó que, de 2010 a fecha, en la Guácima se han aprobado 48 proyectos urbanísticos “(…) sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (…)”, lo cual, según su criterio, refleja una realidad vehicular que no es acorde con las carreteras diseñadas hace treinta años. Expresamente, dicho regidor, en aquella oportunidad, señaló además lo siguiente:

“(…) Aquí hay presas todos los días, a las siete de la Dirección07 y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente en Guácima centro hoy, colapsa La Guácima porque no hay para dónde coger. Si hoy pasa un accidente o se cae un poste como pasó hace unos meses (…) tenemos que ir a dar la vuelta por San Miguel, con el riesgo de que el carro que tengamos no tenga las condiciones para poder ir a dar esa vuelta (…) Esa es la realidad del distrito, que tiene serias limitaciones viales. Cuando yo llegué al Concejo Municipal de Alajuela, prometí que no iba a votar un solo proyecto urbanísticos más en el Concejo Municipal hasta que se aprobaran las rutas alternas (…) Al día de hoy (…) La municipalidad me dice que no tiene presupuesto para rutas alternas, entonces ¿qué quiere decir esto? La realidad continúa en las mismas condiciones que estamos hoy, con Parque Viva o sin Parque Viva, porque no hay presupuesto, no hay dinero para estas rutas alternas (…) Yo sinceramente me siento muy contento de que haya pasado lo de Parque Viva (…) porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días.

Porque fue Parque Viva, porque si (…) se hubiera volcado un bus o hubiera pasado lo que sea, a nadie le interesa, el problema sigue. Y por dicha fue Parque Viva, porque Parque Viva tiene la voz para poder decir aquí hay un problema, pero hay problema real, que cuando hay un evento también colapsamos (…)”. (El destacado no forma parte del original).

Finalmente, en lo que al elenco probatorio se refiere, es de relevancia observar lo señalado por la Contraloría General Nombre01 en el denominado Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela de fecha 14 de julio de 2022 (informe No. DFOE-LOC-IF-00014-2022). Concretamente, en el aparatado de conclusiones, se señaló lo siguiente:

“(…) 3.1. Se determinó a partir de los indicadores y criterios establecidos, que no es posible garantizar que la gestión del servicio de red vial cantonal a cargo de la Municipalidad de Alajuela sea eficaz en el cumplimiento de sus fines y objetivos relacionados con la movilidad, la seguridad vial y la resiliencia de esta red, y que el uso de los recursos asignados se realice en apego al principio de eficiencia. 3.2. En este sentido, si bien se han realizado intervenciones de conservación vial principalmente en la superficie de ruedo y actividades de seguridad vial, aún persisten importantes limitaciones en la cobertura y mejora de la superficie de ruedo, en la atención de otras estructuras esenciales en la infraestructura vial (puentes y aceras) y en el abordaje de la seguridad vial y la resiliencia de la red vial cantonal, sustentado en elementos técnicos que garanticen razonablemente la eficacia de las acciones municipales en estas materias. 3.3.

En cuanto a la eficiencia, se evidenció que la Municipalidad de Alajuela carece de elementos mínimos fundamentales y de sanas prácticas necesarias para implementar una gestión orientada al cumplimiento de este principio; situación que refleja la necesidad de generar una cultura organizacional que considere el uso de datos e indicadores de gestión como un mecanismo indispensable para la mejora de la gestión en aras de satisfacer el interés público. 3.4. Finalmente, para cumplir con los retos que enfrenta nuestro país como el Objetivo del Desarrollo Sostenible n.° 11 (Ciudades y Comunidades Sostenibles) y avanzar en el propósito de no dejar a nadie atrás, se hace necesario ampliar la visión con la que se gestiona la red vial cantonal, de manera que esta gestión tenga una perspectiva integral de las problemáticas y una visión inclusiva y participativa de todas las poblaciones que habitan en el territorio, con especial énfasis en aquellas poblaciones con mayores rezagos y más vulnerables (…)”.

Aunado a lo anterior, es importante señalar que en este asunto no se ha tenido por demostrado que, de previo a entrar en funcionamiento Parque Viva, se les haya exigido a sus representantes construir –fuera del recinto–, accesos de ingreso o bien, presentar un plan que solventara los problemas de índole vial. Tampoco, que le haya sido notificado a los representantes de Parque Viva lo dispuesto en los oficios No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de la Dirección de la Fuerza Pública de Alajuela y No. PE-243-07-2022 suscrito por la Presidencia Ejecutiva del INVU.

Ahora bien, analizados los argumentos expuestos por los promoventes, los informes rendidos bajo juramento por las autoridades recurridas y las pruebas aportadas por ambas partes, esta Sala Constitucional estima que, efectivamente, tal y como se alega, la emisión de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022 (rubricada electrónicamente a las 12:37:21 hrs.), se traduce en un acto administrativo abiertamente arbitrario, carente de fundamento certero, atropellado y absolutamente desproporcionado. A esta conclusión, se arriba, a partir de las siguientes consideraciones de interés:

• 1)Advierte esta Sala que el cierre de Parque Viva se llevó a cabo a través de un acto administrativo (orden sanitaria), carente de motivación o fundamento certero, lo cual, a su vez, representa un quebranto al debido proceso y al derecho a la defensa, tal y como este Tribunal Constitucional así lo ha sostenido a través de copiosa jurisprudencia (ver, entre otras, lo dispuesto en las Sentencia Nos. 7924-1999 de las 17:48 hrs. de 13 de octubre de 1999, 6535-2006 de las 11:34 hrs. de 12 de mayo de 2006 y 14362-2022 de las 09:20 hrs. de 24 de junio de 2022). Esta aseveración se sustenta en lo siguiente: a) En la orden sanitaria no se hizo alusión a las razones de derecho que motivaron su dictado, es decir, a aquellas normas de nuestro ordenamiento jurídico que sirvieron de sustento para su emisión. b) Se indica que el acto de cierre temporal se emite preliminarmente en atención a lo dispuesto en el acta de inspección ocular No. MS-DRRSCN-DARSA2-1639-2022 confeccionada por funcionarios del Área Rectora de Salud de Alajuela 2, el informe técnico No. DVT-DGIT-2022-339 suscrito por el Director General de Ingeniería de Tránsito y lo consignado en el acta No. 28643-S-MOPT-SP por parte del Comité Asesor Técnico de Concentraciones Masivas.

Sin embargo, por los motivos que infra se explicarán con mayor detalle, lo consignado en tales actos no resultan de recibo ni sirven de fundamento para este Tribunal para sustentar dicha medida, en el tanto, el aspecto imputado a Parque Viva guarda relación exclusivamente con el tema de las vías de acceso al recinto (ubicadas fuera de este), y no con alguna irregularidad hallada propiamente en el referido sitio. c) El acto en cuestión dispuso el cierre de las instalaciones de Parque Viva cuando, para entonces, no se contaba aún con los criterios técnicos que, según la orden, se requerían recopilar y se estaban apenas gestionando por el Ministerio de Salud ante el Cuerpo de Nombre140 y la Cruz Roja Costarricense. Nótese que lo anterior pone de manifiesto que la gravosa orden de cierre –para cualquier tipo de actividad–, del Parque Viva, se emitió y ejecutó sin contarse con criterios técnicos válidos y contundentes que respaldaran dicho proceder.

Eso, es lo que da a entender lo dispuesto en la orden sanitaria y esto, claramente, no deviene en otra cosa más que en una arbitrariedad cometida por la administración pública. Debe destacarse que fue hasta el mismo 8 de julio de 2022 (horas después de haber sido notificada la orden sanitaria bajo estudio al representante del recinto), que la Ministra de Salud –por oficio No. MS-DM-5870-2022 rubricado a las 17:05:24 hrs.–, dispuso solicitarles exclusivamente a las referidas autoridades del Cuerpo de Nombre140 y de la Cruz Roja Costarricense, informes “detallados y amplios”, respecto al Parque Viva “en el marco de la realización de eventos masivos”, y que no fue sino hasta los días 10, 11 y 12 de julio de 2022, que estos fueron emitidos (informes Nos. CBCR-027150-2022-OPB-00741, CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022). Incluso, consta que el 11 de julio del año en curso se confeccionaron otros informes por la Directora del Sistema de Emergencias 9-1-1 (informe No. 911-DI-2022-2202) y por el Ministro de Obras Públicas y Transportes (informe No. DM-2022-3121).

Estos cinco informes, según se demostró, fueron puestos en conocimiento del representante legal de Parque Viva mediante oficio No. MS-DRRSCN-DARSA2-1724-2022 hasta el 15 de julio de 2022, es decir, siete días luego de emitida la orden de cierre total del referido sitio; oportunidad en la cual, además, se dispuso confirmar lo ordenado en este último acto administrativo al estimarse la existencia de problemas de tránsito y de acceso al lugar que dificultan la atención de emergencias (en el parque y en comunidades aledañas) y en concordancia con lo dispuesto en los ordinales 21 y 50 de la Constitución Política, así como en otras normas de la Ley General de la Administración Pública y la Ley General de Salud. Asimismo, debe observarse que todo esto sucedió cuando los representantes de Grupo Nación ya habían formulado el recurso de revocatoria con apelación en subsidio en contra de la orden sanitaria (lo cual se llevó a cabo el día antes, sea, el 14 de julio de 2022).

Nótese que si bien en el oficio No. MS-DRRSCN-DARSA2-1724-2022 se hizo alusión a los mencionados criterios técnicos e, incluso, en esta oportunidad, se citaron varias normas de nuestro ordenamiento jurídico, esto, de modo alguno, subsana las graves omisiones y deficiencias con las que fue dictada la orden sanitaria originalmente, las cuales, como ya se dijo, se traducen en una violación a los derechos fundamentales a la defensa y al debido proceso. Además, por las razones que se indicarán de seguido, los criterios citados por los recurridos no pueden servir de instrumento para cerrar Parque Viva.

• 2)Tal y como se ha podido acreditar en este proceso de amparo, Parque Viva no fue cerrado por las autoridades del Ministerio de Salud, a través de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022, en virtud de algún problema relacionado directamente con sus instalaciones. Según se puede acreditar de lo dispuesto en el informe No. MS-DRRSCN-DARSA2-1641-2022 (confeccionado por el Área Rectora de Salud de Alajuela 2 en virtud de la inspección realizada en el sitio el 5 de julio de 2022 con motivo de la denuncia anónima formulada), “las instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas” e, incluso, se aseveró que los cuatro puntos de accesos y salidas de vehículos con los que cuenta el propio sitio (a lo interno), resultan adecuados y favorecen el flujo de estos. Tanto es así que consta en autos que las autoridades del Ministerio de Salud renovaron al Parque Viva el permiso sanitario de funcionamiento No. MS-DRRSCN-DARSA2-RPSF-0177-2019 con vigencia hasta febrero de 2024 y que, en diciembre de 2021 y enero de 2022, se otorgó el visto bueno a sus aforos.

El único aspecto que se le imputa a Parque Viva y por el cual se dispuso el cierre de sus instalaciones para todo tipo de evento (siguiendo, a su vez, lo acusado en la denuncia de 5 de julio de 2022), guarda relación intrínseca, única y exclusivamente, con las condiciones de las calles de acceso al recinto ubicadas afuera de este y los problemas de tránsito vehicular que en estas se generan. Particularmente, se aduce que la gran cantidad de vehículos que transitan por estas calles, principalmente, cuando se realizan eventos masivos en Parque Viva, aunado a su poca longitud y deplorable estado, no permiten una circulación expedita de los cuerpos de socorro ante alguna situación de emergencia que se presente en este sitio o bien, en las comunidades aledañas, lo cual, a su vez, según se ha afirmado, representa un riesgo para la salud y la vida humana. En esto coinciden las autoridades a las cuales se les solicitó emitir un criterio técnico sobre el particular, lo cual es fácilmente constatable realizándose una lectura de lo allí dispuesto.

Por esto, además precisamente, es que, a través del dictado de la orden sanitaria, se le haya requerido al representante de Parque Viva, la presentación de un plan remedial “que abarque la solución a la problemática de los accesos”. No obstante, en criterio de este Tribunal Constitucional, resulta improcedente haberse llevado a cabo el cierre de este sitio imputándosele esa exclusiva circunstancia y, además, exigiéndosele una solución al problema, por los siguientes puntuales motivos:

• a)En primer término, debe tomarse en cuenta que el meollo del asunto gira sobre un problema generado “afuera” del Parque Viva y, por ende, no es a este al que se le debe imputar la responsabilidad en cuanto a su atención. El tema atribuido a las calles que conducen a Parque Viva ubicado en La Guácima, sea aquello referente al soporte vehicular y su condición o estado (y la consecuente atención y solución que a este debe prestársele), no es competencia de los recintos comerciales aledaños. Si bien estos últimos podrían contribuir con algunas mejoras (v.gr. la construcción de aceras o el levantamiento de algunas obras menores que faciliten el ingreso fluido al sitio), lo cierto es que sobre estos no puede caer la absoluta y total responsabilidad de brindar a las calles el requerido mantenimiento, ampliarlas y, además, resolver el problema del congestionamiento vehicular, el cual, cabe añadir, persiste no sólo en dicha zona de Alajuela, sino en otras muchas partes del país.

Incluso, las propias autoridades del Área Rectora de Salud de Alajuela 2, en el informe No. MS-DRRSCN-DARSA2-1641-2022, reconocen que lo tocante al problema vial no es competencia, ni siquiera, del Ministerio de Salud. En este caso, al tratarse de calles cantonales –tal y como se ha comprobado–, es a la Municipalidad de Alajuela a la que le corresponde su atención e intervención; sin embargo, no se observa que las autoridades del Ministerio de Salud –durante la tramitación de la denuncia bajo estudio–, le hayan solicitado siquiera un pronunciamiento a esta corporación. Por el contrario, se denota de la prueba aportada que los criterios han sido requeridos a las autoridades del MOPT, quienes, en el informe No. DVT-DGIT-2022-339, sostuvieron que “(…) 4. El Parque Viva de (sic) localiza frente a una ruta cantonal denominada Dirección02. Al ser una ruta cantonal, le corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso (…)”.

Además, es importante señalar, en este punto, que la Contraloría General de la República, en el denominado Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela de reciente data, sea, de 14 de julio de 2022, hizo referencia a la inoperancia de esta corporación en solventar los problemas viales de la zona; lo cual explica la falta de atención que, a la fecha, se le han brindado a las calles aledañas a Parque Viva y que son, precisamente, objeto de discusión producto de la denuncia formulada el 5 de julio de 2022. Así las cosas, esta Sala observa que el cierre de Parque Viva se origina o sustenta en un problema cuya atención, en realidad, le corresponde a las autoridades municipales, pues son estas las responsables de brindarle atención a las vías cantonales, en concreto, a aquellas de La Guácima de Alajuela, lo que, a todas luces, no han hecho.

• b)Independientemente de lo dicho en el apartado anterior, no consta en este asunto que, de previo a otorgarse los permisos a Parque Viva para su puesta en funcionamiento en el año 2015, se le haya exigido presentar un proyecto para paliar los problemas viales que hoy en día se le imputan (v.gr. construcción de accesos de ingreso fuera del recinto o bien, algún otro proyecto de mayor envergadura). Al menos, esto no ha sido señalado así por las partes recurridas ante este Tribunal. De todas formas, es importante apuntar que, en caso de haberse requerido dicho proyecto en aquel momento, pero obviado su exigencia y, por ende, su presentación, lo que procede actualmente es interponer el proceso que corresponda ante las respectivas instancias jurisdiccionales. No, emitir una orden sanitaria y solicitar un plan remedial, en los términos acá expuestos, como medio para subsanar una eventual omisión.

En todo caso, es importante observar que de la prueba aportada por los recurrentes se logra colegir que el estudio de impacto vial requerido y presentado en su oportunidad por los representantes de Parque Viva, fue aprobado en septiembre de 2014 por las autoridades de la Dirección General de Ingeniería de Tránsito del MOPT. Concretamente, consta que en el ya citado oficio No. DGIT-ED-5935-2014, tales autoridades indicaron que “(…) Una vez realizada la revisión del estudio de impacto vial presentado (para las condiciones de funcionamiento típico del Centro de Eventos La Guácima), esta Unidad indica que desde el punto de vista funcional no tiene objeción alguna con el proyecto. Lo anterior se debe a que esta Unidad comprobó que con la implementación de las medidas de mitigación planteadas a partir del análisis de capacidad realizado, los niveles de servicio (NDS) y longitudes de cola logran mantenerse en niveles adecuados (…)”.

Aunado a esto, resulta menester señalar que un proyecto como el que se exige actualmente a Parque Viva, no tendría razón de haber sido requerido años atrás, al tramitarse el permiso de funcionamiento, ya que, tal y como se explicará en las líneas de seguido, para ese entonces la situación vehicular en La Guácima de Alajuela era otra.

• c)Hoy en día se le ha exigido a Parque Viva (como requisito para permitir su reapertura), la presentación, aprobación pero, también, la implementación o ejecución (según los términos utilizados por la Ministra de Salud en el informe rendido a este Tribunal), de un plan que solvente un problema vial existente en la zona de La Guácima que no puede serle imputado únicamente al primero. Nótese que del estudio de este asunto se ha logrado comprobar que los congestionamientos viales en dicha zona no guardan relación exclusivamente con las actividades que se organizan en Parque Viva (las cuales, además, generalmente se agendan los fines de semana y por las noches). Por el contrario, se ha demostrado que, desde el año 2010 aproximadamente, se dio un vertiginoso desarrollo urbanístico en la comunidad de La Guácima (pues se han construido más de 40 condominios), lo cual evidentemente, se traduce en una mayor afluencia de vehículos en las calles en cuestión.

Esta situación ha sido confirmada por el Alcalde de Alajuela (a quien, como se dijo líneas arriba, no se le ha dado participación en la tramitación y resolución de la denuncia planteada en contra de Parque Viva) y también por un regidor y dirigente comunal. El referido Alcalde, recientemente, aseguró que el congestionamiento vial que se genera en La Guácima de Alajuela no es causado únicamente por Parque Viva, sino que se debe también al gran crecimiento habitacional del distrito, específicamente, a los nuevos condominios que se construyeron en la zona. Concretamente, dicha autoridad sostuvo que “(…) Hay que ver la realidad. El parque tiene casi diez años de construido y, en estos diez años, ha habido un cambio sustancial en el desarrollo urbanístico del distrito de La Guácima, es decir, hay más población y más condominios (…) Desde el 2014, se han aprobado 44 condominios en el distrito, por ejemplo (…)” y, además, aclaró que, pese a los esfuerzos realizados, el municipio no cuenta con suficientes recursos para solventar todo el problema vial en la zona.

Por su parte, Nombre19, regidor y residente de La Guácima de Alajuela, en sesión de concejo de distrito ampliada celebrada el pasado 13 de julio del año en curso, sostuvo que, de 2010 a la fecha, en La Guácima se han aprobado 48 proyectos urbanísticos “(…) sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (…)”, lo cual, según su criterio, refleja una realidad vehicular que no es acorde con las carreteras diseñadas hace treinta años. Además, este regidor fue contundente al señalar que “(…) Aquí hay presas todos los días, a las siete de la Nombre142 y a las cinco de la tarde, con concierto, o sin concierto (…)”. De este modo, se observa que las autoridades del Ministerio de Salud le han exigido a Parque Viva resolver un problema de enorme importancia, cuya causa no está relacionada o ligada únicamente a las actividades organizadas en dicho sitio (sino también con el vertiginoso desarrollo urbanístico y comercial experimentado en la zona durante los últimos años), cuya atención le compete a las autoridades públicas y que, además, es de muy difícil cumplimiento, según las circunstancias supra expuestas.

Por ende, resulta evidente que, de forma infundada y arbitrariamente, se está atacando solamente a un establecimiento, cuando el problema es de mayores dimensiones, involucra a otros actores, tanto públicos y privados, y tiene múltiples causas, más allá de los eventos organizados en Parque Viva. Además, es importante hacer notar que el Ministerio de Salud, según se desprende del informe rendido por su jerarca, no solo pretende la presentación, por parte de Parque Viva, de un plan remedial, sino, además, su implementación o ejecución, lo cual, sin duda alguna, vuelve aún más complicado, lento y engorroso cumplir con dicha exigencia, como medio para autorizarse la reapertura del sitio de forma expedita. Bajo dicho panorama, estamos hablando de una medida que podría mantenerse así por años, de forma casi indefinida.

• d)Es de suma importancia tomar en cuenta que en este asunto se ha demostrado que, precisamente, con el fin de coadyuvar o contribuir en la solución a los problemas viales que se presentan en los alrededores de Parque Viva (los cuales, no son negados por los representantes de ese recinto e, incluso, así se demuestra a partir de la noticia publicada al efecto el 27 de abril de 2021, en la sección de entretenimiento del medio periodístico La Nación y del propio escrito de interposición de este amparo), se gestionó (aproximadamente desde el 2019 y por parte de Grupo Nación), un proyecto vial dirigido a construir en los próximos años un acceso directo de cuatro carriles que comunica la Ruta No. 27 con dicho establecimiento (o con el proyecto a futuro denominado Ciudad Viva). Los costos de este proyecto, según explicaron los recurrentes, serían asumidos por Grupo Nación. Además, según se ha demostrado fehacientemente, durante el año 2021 y a inicios de este año 2022, este proyecto contó con el visto bueno de varias instancias gubernamentales, a saber, por parte del Departamento de Estudios y Diseños del Ministerio de Obras Públicas y Transportes (oficio No. DVT-DGIT-ED-2021-1845), del Consejo Nacional de Vialidad (oficios No. GCTT 34-2021-0340 y No. CCAR-2021-373), del Concejo Nacional de Concesiones (oficio No. CNC-APM-SJC-0608-2021) y por parte del Departamento de Estudios y Diseños del Ministerio de Obras Públicas y Transportes (oficio No. DVT-DGIT-ED-2022-0088).

Sin embargo, tal y como se aduce, dicho proyecto, a la fecha, no ha avanzado en sede administrativa y, por ende, no se cuenta aún con su aprobación. Además, cabe señalar que el Nombre138 Nombre01, recientemente, en conferencia de prensa llevada a cabo el 13 de julio de 2022, se pronunció abierta y públicamente en su contra. De este modo, esta Sala observa que Parque Viva y sus representantes, sí tomaron las previsiones necesarias (incluso, muchos meses antes del giro de la orden sanitaria), a efecto de solventar la situación acaecida a nivel vehicular en sus alrededores, cuya causa, se reitera, no se le puede atribuir en su totalidad a este sitio y a las actividades que se llevan a cabo en el mismo y, además, es responsabilidad del municipio citado atenderla. Por ende, no resulta plausible para este Tribunal que, en este momento, se exija la presentación, aprobación e implementación (según los términos utilizados por la Ministra de Salud en este amparo), de un plan remedial tendente a solventar la referida problemática, cuando, como se dijo, un proyecto pensado y dirigido a cumplir ese fin había sido presentado desde mucho tiempo atrás por iniciativa propia Nombre03 ante las instancias gubernamentales correspondientes (el cual, incluso, tal y como se dijo, se encontraba encaminado y contaba con algunos vistos buenos otorgados por las instancias competentes).

Cabe deparar acá en una singular situación –la cual, sin duda alguna, se traduce igualmente en una arbitrariedad–, y es el hecho que, de una parte, el Ministerio de Salud le ha exigido a Parque Viva (como condición para permitirle operar nuevamente), presentar y poner en marcha un plan remedial para solventar los problemas de congestionamiento vial a los que hemos hecho referencia pero, por otro, curiosamente y, justo en la misma época, es desacreditado públicamente por parte del mandatario el proyecto que, años atrás, se ha venido gestionando precisamente para atender lo hoy requerido. Siendo así, es claro que el gobierno ha colocado a Parque Viva en una situación difícil, casi sin salida, cerrándole y desacreditándole uno de los más potables portillos con los que contaba para solventar lo hoy exigido. Llama la atención de esta jurisdicción que el señor mandatario, en el informe rendido, sostiene que no es cierto que se haya clausurado definitivamente el recinto; sin embargo, ante las circunstancias supra descritas, es claro que ese sería el efecto de la decisión que ahora se cuestiona.

Ahora, cabe aclarar que este Tribunal Constitucional no está diciendo que el referido proyecto en específico es el que procede o el que debe ser aprobado indefectiblemente; pero, sí es importante destacar que se trata de una propuesta de interés, dirigida a atender la problemática en cuestión, la que, además, según se ha acreditado, ha superado recientemente varias etapas ante las instancias gubernamentales correspondientes y que al menos desde el plano formal, constituye la exigencia de un plan remedial que la Administración recurrida previno y que, se insiste, no ha sido analizada, bien para disponer su aprobación o denegatoria conforme a las consideraciones técnicas que son de rigor y de mérito en este tipo de acciones. Nótese que al margen de supeditar la reapertura a una condición que, en el fondo, pretende trasladar a los recurrentes toda la responsabilidad de solucionar un problema de infraestructura vial (cantonal), de génesis y agravamiento multicausal, la opción técnica ya fue ofertada por la empresa afectada, misma que fue "rechazada" sin el mayor fundamento técnico o jurídico, pese a contar con la venía y anuencia de varias instancias administrativas de competencia técnica.

• e)El Nombre138 Nombre01, en el informe rendido a este órgano constitucional, argumenta que las autoridades públicas han exigido a otros grupos comerciales la construcción de accesos de ingreso a centros comerciales de gran envergadura, cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, tal y como es el caso de EPA en Desamparados y el City Mall en Alajuela, los que, según su dicho, realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de los automóviles. No obstante, es importante aclarar que este argumento no puede servir de sustento para exigirle a Parque Viva la ejecución del plan remedial bajo estudio, habida cuenta que este último recinto se encuentra bajo circunstancias claramente distintas. Nótese que, tal y como se desprende de lo informado por el mandatario, la exigencia de construir dichos accesos viales se emitió cuando tales establecimientos (EPA y City Mall), no habían entrado en funcionamiento aún; sino que, se solicitaron o exigieron como requisito previo para permitir y autorizar su operación.

Caso contrario a lo que ocurre actualmente con Parque Viva, lugar que tiene más de siete años de estar funcionando y no consta que, de previo a ello, se le haya exigido construir este tipo de accesos de ingreso –fuera del recinto– o bien, como ya se ha dicho, presentar un plan de mayor envergadura que solventara los problemas de índole vial hoy atribuidos. Además, cabe destacar que es distinto solicitar la construcción de accesos de ingreso (lo cual, si bien representa un costo, no deviene en una obra de gran magnitud), a requerirse solventar los problemas de congestionamiento vial que se presentan en La Guácima de Alajuela. Lo que ahora se le impone realizar a Parque Viva no solo no tiene sustento y es de muy difícil cumplimiento (tal y como se ha explicado supra), sino que, además, se la ha exigido, de forma sobrevenida y arbitrariamente.

En ese mismo orden de consideraciones, es importante hacer notar que la clausura de Parque Viva tampoco podría compararse con cierres que se han llevado a cabo recientemente de otros establecimientos que albergan o reúnen grandes cantidades de asistentes (v.gr. el Gimnasio Nacional o el Estadio Ricardo Saprissa). Nótese que si bien esta Sala entiende muy bien la atención que el Ministerio de Salud y otras instituciones competentes en la materia deben mantener y mantienen sobre recintos dispuestos para la realización de actividades que aglutinan una buena cantidad de público, lo cierto es que en esos casos se tienen circunstancias particulares de abordaje y atención que lo distinguen plenamente del caso que ahora se conoce. Esto, en el tanto estos últimos cierres –de índole total o parcial–, se han sustentado en presuntas irregularidades o deficiencias halladas en tales instalaciones o inmuebles propiamente, sea, dentro de cada uno de estos sitios, por motivos relacionados, entre otros, con los sistemas eléctricos, las salidas de emergencia, los sistemas de iluminación, etc., los que, en ningún momento, se mencionan en el caso de Parque Viva.

• 3)El Nombre138 Nombre01, en el informe rendido a este Tribunal, hace referencia adicionalmente a dos informes para justificar el cierre de Parque Viva; informes de los cuales se desconoce cuándo, cómo, porqué y por quién fueron solicitados, y en virtud de qué llegaron a manos del primero, quien los aporta a este proceso. En particular, alude al oficio No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de 10 de julio de 2022 (mediante el cual el Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela menciona los problemas que se presentan para atender incidentes de carácter policial en el perímetro externo a Parque Viva cuando se realizan actividades en dicho establecimiento) y al Oficio No. PE-243-07-2022 de 29 de julio de 2022 (donde la Presidenta Ejecutiva del INVU expone una serie de presuntas irregularidades halladas en el expediente municipal del llamado Proyecto Viva respecto al otorgamiento de los permisos de funcionamiento, y relacionadas, por ejemplo, con los usos de suelo, la viabilidad ambiental, la falta de solicitud de un específico estudio de impacto vial, etc.).

No obstante, es importante señalar que, en criterio de esta Sala, el contenido de tales oficios no puede ser presentado actualmente como medio para desviar la atención de lo realmente ocurrido en este caso y, por ende, tratar de justificar la gravosa medida tomada respecto a Parque Viva. Esto, en primer término, habida cuenta que tales oficios no sirvieron de fundamento para emitir la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022 (rubricada electrónicamente a las 12:37:21 hrs.). Incluso, consta que el informe del INVU fue emitido hasta el día 29 de julio de 2022, luego, de comunicado a la parte afectada el oficio No. MS-DRRSCN-DARSA2-1724-2022, mediante el cual se confirmó la orden sanitaria. Tampoco, consta que estos documentos hayan sido notificados o puestos en conocimiento del representante de Parque Viva, como medio para permitírsele ejercer el derecho fundamental a la defensa, en resguardo, a su vez, del debido proceso.

Desde esa perspectiva, resulta claro para esta Sala que el Nombre138 Nombre01 lo que pretende es evidenciar, hoy en día, al menos a través del oficio suscrito por la Presidenta Ejecutiva del INVU, un presunto incumplimiento de requisitos de diversa índole por parte de Parque Viva al momento de otorgarse los respectivos permisos de funcionamiento, lo cual, cabe resaltar, ocurrió hace aproximadamente siete años. No obstante, tal y como se explicó supra, de ser esto así, lo que procede es acudir ante las vías de legalidad ordinarias e instaurar los procesos que resulten pertinentes; sobre todo, porque, tal y como también se demostró, la Municipalidad de Alajuela, de forma reciente, ha desmentido públicamente los aspectos señalados en dicho informe. Nótese que toda actuación debe ajustarse al principio de legalidad, lo cual es una exigencia del modelo de Estado Constitucional de Derecho que debe ser respetada por todo funcionario público, independientemente del cargo que se ostente.

• 4)Otro aspecto a destacar es que el cierre del Parque Viva se emitió para cualquier tipo de evento, sean estos masivos o no, lo cual, en criterio de este Tribunal, igualmente carece de fundamento y, por ende, resulta improcedente. Luego de una lectura realizada a la denuncia anónima planteada el 5 de julio de 2022 se logra desprender que el gestionante hizo alusión a problemas que se presentan en el recinto cuando se llevan a cabo actividades de índole masivo (o de gran cantidad, tal y como define a esa palabra el Diccionario de la Real Academia Española) e, incluso, fue enfático al señalar que este lugar “no reúne las condiciones para albergar eventos masivos”. Consta que, en esa misma línea, la Ministra de Salud, por oficio No. MS-DM-5754-2022, solicitó al MOPT brindar criterio técnico respecto a los eventos masivos que se llevan a cabo en Parque Viva y que este fue precisamente el vertido mediante el oficio No. DVT-DGIT-2022-339 (que, además, cabe destacar, sirvió de presunto sustento para emitir la orden sanitaria bajo estudio).

Igualmente se ha demostrado que el Comité Asesor Técnico de Concentraciones Masivas, en la sesión llevada a cabo el día 7 de julio de 2022 (la cual, también, sirvió para supuestamente fundamentar la clausura del parque), recomendó, clara y expresamente, girar una orden sanitaria de cierre para eventos masivos. Posterior a esta actuación se emitió la referida orden, sin constar en el ínterin alguna otra donde se haya recomendado –respaldándose, a su vez, en criterios técnicos–, el cierre total del lugar para cualquier tipo de actividades, incluidas aquellas que no demandan una afluencia masiva de público. Además, cabe destacar que en los criterios técnicos vertidos con posterioridad al giro de la orden sanitaria por parte del Cuerpo de Bomberos, la Cruz Roja, el MOPT y el Sistema de Emergencias 9-1-1 (a los cuales se ha hecho referencia supra y fueron requeridos por la Ministra recurrida “en el marco de la realización de eventos masivos”), solamente se hizo alusión a ese tipo concreto de eventos (masivos), y no se recomendó expresamente el cierre de la totalidad del recinto, lo cual, a su vez, se constata de lo dispuesto en el oficio No. MS-DRRSCN-DARSA2-1724-2022, mediante el cual el Área Rectora de Salud de Alajuela 2 confirmó la orden sanitaria girada anteriormente y se indicó que tales informes señalaron que existe un problema para la atención de emergencias “(…) tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva (…)”.

Incluso, nótese que el propio Ministro de Transportes, en el oficio No. DM-2022-3121 emitido el 11 de julio del año en curso, recomendó la realización concentraciones masivas de 2400 personas por evento. De este modo, no hay ninguna prueba que justifique la suspensión temporal del permiso sanitario de funcionamiento para toda actividad. Mucho menos, estose trató de justificar o explicar al emitirse la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de 8 de julio de 2022 (rubricada electrónicamente a las 12:37:21 hrs.)o elcitado oficio No. MS-DRRSCN-DARSA2-1724-2022defecha 15 de julio de 2022. El problema que se ha ventilado respecto al Parque Viva –tal y como se ha demostrado en este proceso de amparo–, guarda relación estrecha con el ingreso de grandes cantidades de personas y de vehículos al sitio; en ningún momento, se ha hecho alusión a actividades de menor envergadura. Asílas cosas,lo dispuesto coarta totalmente al Grupo Nación la posibilidad de percibir cualquier tipo de ingresos, a pesar que, como se ha dicho, no existió tampoco fundamento alguno que respaldara la decisión de no permitir eventos de índole masivo.

• 5)Adicionalmente, este Tribunal Constitucional desea llamar la atención sobre algunos aspectos de interés hallados en el estudio del presente asunto. Uno de ellos es la celeridad con la que las autoridades del Ministerio de Salud actuaron respecto a la denuncia “anónima” presentada el 5 de julio de 2022, la cual, según se ha acreditado, fue la que originó la emisión de la orden sanitaria y el cierre de Parque Viva. Nótese que del estudio de los autos se acredita que dicha denuncia, presentada en el Despacho de la Ministra de Salud en San José a una hora no precisa de 5 de julio de 2022, fue remitida por esta última autoridad, por razones de competencia, a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte de ese mismo Ministerio (oficina ubicada en Heredia), por oficio No. MS-DM-5756-2022, rubricado digitalmente el 5 de julio de 2022 a las 12:38:24 hrs.. Además, consta que esa misma denuncia fue recibida físicamente ese mismo día, a las 12:41 hrs., por parte de las autoridades del Área Rectora de Salud de Alajuela 2, las que, tan sólo una hora y nueve minutos después, sea, a las 13:50 hrs., se encontraban realizando una inspección en Parque Viva.

Inspección que, a su vez, originó la confección del informe No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, mediante el cual, conforme los hallazgos consignados, se recomendó trasladar la denuncia al Ministerio de Obras Públicas y Transportes; entidad a la que, sin embargo (antes de llevarse a cabo dicha inspección), ya se le había pedido externar su criterio por parte de la Ministra recurrida, mediante oficio No. MS-DM-5754-2022, rubricado digitalmente a las 12:24:14 hrs. de 5 de julio de 2022. Además, de la prueba allegada a los autos se demuestra que ese mismo 5 de julio del año en curso, las autoridades del MOPT ya habían emitido el supra criterio requerido (específicamente mediante oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334), el cual, sin embargo, fue dejado sin efecto el día siguiente, sustituyéndose por el consignado en el oficio No. DVT-DGIT-2022-339 de fecha 6 de julio de 2022.

Adicionalmente, debe destacarse que el día 7 de julio de 2022, ya se encontraba sesionando el Comité Asesor Técnico de Concentraciones Masivas integrado por la Ministra de Salud en calidad de coordinadora, el Ministro de Obras Públicas y Transportes, funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud, quienes, ese mismo día –sin contar, como se ha dicho, con criterios mayormente contundentes–, propusieron emitir la orden sanitaria de cierre de Parque Viva para eventos masivos. Esta última medida, según se ha dicho, fue notificada al representante legal de ese establecimiento finalmente el día 8 de julio del año en curso. Visto lo anterior ha de decirse que la Administración Pública –tal y como lo ha indicado reiteradamente este Tribunal Constitucional a través de copiosa jurisprudencia–, se encuentra ciertamente obligada a actuar bajo los principios de eficacia y eficiencia y, además, tramitar y resolver las denuncias formuladas por los administrados de forma pronta y dentro de plazos razonables, en atención a lo estatuido en el ordinal 41 constitucional.

No obstante, es importante hacer notar que, ni en situaciones apremiantes, se ha visto a la Administración Pública actuar con la celeridad con la que se actuó en este caso en particular. Esto, sin duda alguna, cita un importante precedente y, por ende, es de esperarse que, a posteriori, y ante cualquier denuncia formulada por los administrados, el Ministerio de Salud y el resto de instituciones públicas que resulten competentes, actúen con esa misma premura y diligencia, brindando así una pronta respuesta a los gestionantes e interesados.

De otra parte, no debe dejarse pasar por alto la noticia consignada el 10 de julio de 2022 en el Diario La Nación (días luego de cerrado Parque Viva), mediante la cual una vecina de La Guácima afirmó que un funcionario de una institución pública la contactó y le facilitó un machote de carta dirigido a la Ministra de Salud a efecto de pronunciarse a favor del cierre del citado establecimiento, la cual, además, solamente debía ser firmada por su persona. Llama la atención de esta Sala que dicha vecina haya exclamado, al momento de ser entrevistada por la periodista, que, desde su perspectiva, “el Gobierno quiere “desembarrar” lo que ellos “embarraron”, con el cierre del centro de eventos”.

Adicionalmente y, como dato de interés, cabe destacar que el Nombre138 Nombre01, en el informe rendido a este Tribunal, sostuvo con propiedad que la denuncia “anónima” formulada el 5 de julio de 2022 en contra de Parque Viva, fue presentada por vecinos de La Guácima de Alajuela, cuando, precisamente, al ser anónima, no tendría por qué ser necesariamente personas de dicho lugar las que formularon la gestión. Nótese que dicha denuncia la pudo haber interpuesto, por ejemplo, algún asistente al centro de eventos que resida en otra parte del país y que se encontrara disconforme con la operación de este sitio o bien, cualquier otra persona.

Ahora, cabe destacar también que los aspectos supra señalados, en estricto sentido, no devienen en una violación a ningún derecho fundamental. Sin embargo, esta jurisdicción consideró importante mencionarlos, a efecto que sean valorados y analizados, de consuno con el resto de consideraciones expuestas en esta sentencia.

Ahora bien, a partir de lo anteriormente señalado, esta Sala considera pertinente analizar la cuestión objeto de este amparo conforme lo dispuesto, a su vez, por los principios de razonabilidad y proporcionalidad. En esencia, examinar si la actuación supra citada –sea, el dictado de la orden sanitaria de cierre de Parque Viva para cualquier tipo de actividad–, supera o no el llamado test de razonabilidad y proporcionalidad, el cual, a tenor de lo dispuesto, entre otros votos, en la Sentencia No. 1276-2013 de las 14:50 hrs. de 29 de enero de 2013, comprende realizar un análisis de los aspectos de legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto. En este último voto, se explicaron los alcances de tal examen de la siguiente manera: “(…) La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada deber ser (sic) apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, la autoridad competente debe elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aunque una medida sea idónea y necesaria, será irrazonables (sic) si lesiona el contenido esencial de otro derecho fundamental, si lo vacía de contenido (…)” (en similar sentido, se pueden consultar los Votos Nos. 3951-2012 de las 16:31 hrs. de 21 de marzo de 2012 y 27601-2021 de las 12:15 hrs. de 8 de diciembre de 2021).

Por su parte, cabe indicar que en la Sentencia No. 3564-2015 de las 09:20 hrs. de 13 de marzo de 2015, este Tribunal aclaró, sobre el particular, que “(…) Este protocolo se aplica por fases, de manera que si el examen de una primera fase es insatisfactorio, resulta innecesario proseguir con el estudio del resto de aspectos, aunque, en algunos casos, para mayor contundencia del fallo se puede ahondar en ello (…)”.

En aplicación de dicho test y, conforme lo señalado líneas arriba, es claro que la medida sanitaria bajo estudio no es legítima, pues, pese a argumentarse para su emisión la protección a la vida e integridad de las personas, lo cierto es que fue dictada, como ya se explicó, de forma atropellada, abiertamente arbitraria y sin fundamento certero alguno, contraviniendo así lo dispuesto en el ordenamiento jurídico. La conducta impugnada alude a presupuestos fácticos y jurídicos que, por un lado, no son atribuibles de manera exclusiva al Parque Viva, tal y como lo pretende enfocar y establecer la orden sanitaria, pero, además, no fueron debidamente acreditados ni sustentados al momento de adoptar ese acto formal. Es decir, el antecedente sobre el cual pretende ampararse esa decisión, parte de una conclusión o juicio de valor que no cuenta con el soporte probatorio de orden técnico, que resulta fundamental e impostergable para sostener ese resultado.

Se observa, por tanto, una inexistencia del elemento motivo del acto, en los términos que impone el canon 133 de la LGAP y con ello, por derivación, el contenido adoptado, que impone una consecuencia gravosa, desproporcionada e irrazonable, resulta ilegítimo, al establecer una consecuencia jurídica que no encuentra respaldo en el ordenamiento jurídico. En suma, sobre este punto, el acto cuestionado contraviene la necesaria relación entre los elementos materiales objetivos motivo-contenido, incorporando una deficiencia insalvable, que, en modo alguno, se puede entender superada por la generación ulterior de dictámenes de otras instancias administrativas, que buscaban acreditar aspectos que debieron establecerse como base legítima de la orden sanitaria impugnada. Estado de cosas anterior que, por consiguiente, no permite, tampoco, ser considerada una medida idónea. Asimismo, esta medida no satisface el criterio de necesidad, toda vez que existen alternativas menos lesivas o menos drásticas para alcanzar la finalidad aducida (protección de la vida y la salud de las personas) y que pudieren ser adoptadas en el cumplimiento de las potestades que tiene el Ministerio de Salud para la protección de la salud y de la integridad sin necesidad de afectar el ejercicio de otros derechos fundamentales.

No obstante, la parte recurrida, sea, el Ministerio de Salud, escogió imponer –sin que medie justificación válida alguna–, la opción más lesiva al establecimiento Parque Viva, pues le impide tajantemente realizar cualquier tipo de evento de forma indefinida, hasta tanto, según se ha explicado, se presente y se ejecute un plan remedial a un problema que no sólo es causado por las actividades que ahí se organizan, y que, a su vez, al tratarse de calles cantonales, le corresponde atenderlo al municipio de Alajuela. Aunado a ello, cabe destacar que la medida bajo estudio adoptada por la Administración reprueba igualmente el examen de proporcionalidad en sentido estricto, ya que la misma lesiona el contenido esencial de otros derechos fundamentales, vaciándola así de su contenido protector. En este particular, ya se ha demostrado que la medida bajo estudio deviene en arbitraria, carece de motivación o sustento (pues refiere a criterios técnicos que no han sido de recibo para este Tribunal) y atenta, en consecuencia y, de forma flagrante, contra los derechos fundamentales a la defensa y al debido proceso.

Así las cosas, en criterio de este Tribunal Constitucional, los recurridos debieron realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo. Nótese que si bien, cabe destacar, este órgano constitucional, de forma reiterada, ha señalado que la vida, la salud y la integridad de las personas, son bienes jurídicos de suma relevancia, por lo que claramente merecen su protección, no por ello y, en Nombre141 de estos, se pueden atropellar otros derechos fundamentales de forma indistinta, intempestiva y arbitrariamente, a través de una clara desviación de poder que constituye, a su vez, una violación al principio constitucional de seguridad jurídica.

Medidas para resguardar tales esenciales bienes, siempre y obligatoriamente se deben tomar, pero, bajo ningún concepto, pueden emitirse a la ligera, de forma precipitada, atropellada, sin mayor fundamento y atentando gravemente contra otros derechos fundamentales. Mucho menos, dictarse medidas tan drásticas como las analizadas en este asunto, cuando existen otras posibilidades –menos lesivas–, que se pueden adoptar a efecto de resguardar la vida y la salud de las personas.

Ciertamente, es un hecho que en las cercanías de Parque Viva se deben realizar mejoras en la red vial cantonal que permitan el tránsito expedito de vehículos de emergencia; sin embargo, como se ha dicho también, este problema no puede atribuírsele o achacársele en su totalidad a Parque Viva, muchos menos, trasladarle a los representantes de este recinto la responsabilidad de acabar con el mismo a través de la imposición de una medida tan gravosa y extrema como lo es el cierre absoluto de sus instalaciones.

Por estas consideraciones descritas, es que esta Sala estima pertinente acoger este extremo del recurso, con las consecuencias que se dirán en la parte dispositiva de esta sentencia.

C. CIERRE DE PARQUE VIVA Y VIOLACIÓN INDIRECTA A LA LIBERTAD DE EXPRESIÓN. El Director del Periódico La Nación, así como el resto de recurrentes, aducen también a este Tribunal que la orden de cierre de Parque Viva (dispuesta mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022), se traduce en una violación indirecta a la libertad de expresión. En ese particular, explican primeramente que Parque Viva forma parte Nombre03 S.A. (del cual es parte también dicho diario) y fue creado como una fuente complementaria de ingresos, menos dependiente de la venta de publicidad en el medio de comunicación. Específicamente, exponen que dicho centro de eventos se puso en funcionamiento para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de entradas o ganancias experimentada por los medios de comunicación en todo el mundo, debido a la migración de publicidad a los gigantes de la internet.

Explican los accionantes que el referido diario, realizó una serie de publicaciones de evidente interés público del entonces candidato a la Presidencia de la República, Nombre15, relacionadas con sanciones impuestas a este por acoso sexual en el Banco Mundial y con las estructuras paralelas de financiamiento de la campaña política de su partido, entre otros temas. Afirman que se trató de publicaciones periodísticas serias, bien documentadas y pertinentes, de manera tal que el hecho de no difundirlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público, así como el principio del votante informado. Refieren también, que, en virtud de lo anterior, el mandatario amenazó públicamente con destruir “las estructuras corruptas de La Nación y de Canal 7”, y ha propinado ataques verbales contra la prensa y periodistas, a quienes ha calificado como “canallas”.

Seguidamente, acusan que el mandatario comenzó a materializar la amenaza girada en su contra, a través de la emisión, el día 8 de julio de 2022, de la ya citada y arbitraria orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, mediante la cual se dispuso el cierre de Parque Viva. Por ende, sostienen que este recinto (creado para diversificar las fuentes de ingresos de la empresa), fue una de las estructuras del periodismo independiente de Grupo Nación que resultó afectada como consecuencia de la amenaza emitida por el actual mandatario. Exponen que con las medidas adoptadas en contra de Parque Viva, no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en intimidar a un medio de comunicación para que no ejerza libremente su derecho a informar. Apuntan que esos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino también al medio de información en el que laboran, por ende, se les lesiona su derecho a informar.

Afirman que este es el verdadero fin que tienen los actos adoptados. Refieren que la presión ejercida sobre las finanzas de la empresa, pone en riesgo el ejercicio periodístico futuro, e invita a entendimientos que lo comprometen. Acusan que lo anteriormente descrito ha implicado un claro propósito de limitar la libertad de expresión por medios indirectos. Añaden que el 6 de julio de 2022, días antes de emitirse dicha orden, el mandatario públicamente sembró dudas sobre la salud financiera de Grupo Nación, al realizar cuestionamientos relacionados con los bonos emitidos por dicha empresa y que adquirió la CCSS y su operadora de pensiones. Incluso, afirman que, en esa ocasión, insinuó el debilitamiento de la garantía de la deuda por el futuro traspaso de algunos terrenos de la empresa a un fideicomiso para hacer un prometedor desarrollo inmobiliario. Mencionan que el accionar del Nombre138 Nombre51, en dicha ocasión, no tuvo otro fin que perjudicar a Grupo Nación, poniendo en duda sus finanzas, para coartar la libertad de expresión.

Concomitantemente, sostienen que el mandatario ha realizado otras manifestaciones públicas en contra Nombre03 (con el fin de continuar persiguiéndolo e intimidándolo), como fue el 13 de julio de 2022, cuando sostuvo su oposición al proyecto de construir un acceso de cuatro carriles a la Dirección11. Además, señalan que el 20 de julio del año en curso, el Nombre138 citó, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva. Argumentan que es más que evidente la amenaza de destruir a las empresas, como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos. Señalan que se ha vulnerado la libertad de expresión estatuida en el ordinal 29 constitucional y, a su vez, se ha configurado un ataque indirecto a esta, el cual está prohibido en el ordinal 13.3 de la Convención Americana sobre Derechos Humanos.

Refieren a lo dispuesto por la Corte Interamericana de Derechos Humanos, entre otros, en el caso Nombre65 vs, Perú, en el caso Nombre136 vs. Venezuela, así como en la opinión consultiva No. OC-5/85. Asimismo, en escrito posterior presentado a esta Sala, el Director del Diario La Nación reiteró que se trata de un grupo de profesionales a quienes se les pretende limitar la libertad de expresión mediante acciones arbitrarias contra las estructuras que sustentan el libre ejercicio del periodismo. Aclara que no han hecho referencia a un ataque directo, sino a uno indirecto y que, contrario a lo manifestado por el mandatario, el pago de sus salarios no depende de Parque Viva. Sin embargo, afirma que el cierre de Parque Viva pondría fin al molesto periodismo que hacen “y que motivó la amenaza proferida en campaña”. En virtud de lo expuesto, solicitan que se le ordene al Nombre138 Nombre01, abstenerse de ejecutar actos tendentes a lesionar la libertad de expresión.

Por su parte, el Nombre138 Nombre01, en descargo a lo acusado, señala que las situaciones referidas por los recurrentes no guardan relación con coartar la libertad de prensa del medio de comunicación. Indica que, más bien, los accionantes, escudados en ese equivocado discurso, exigen sin ningún reparo, que el Estado les debe permitir operar de la manera que ellos quieran, aun cuando esto sea contrario a la ley y en detrimento del bienestar público. Afirma que a Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley, porque inmediatamente a su parecer, se convierte en un ataque a la libertad de prensa. Sostiene que no es posible que Grupo Nación diga que cifran sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y, que, clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad, es un ataque directo a la libertad de prensa.

Señala que eso solamente demuestra que la salud financiera de La Nación no es como quieren hacerlo ver y que dependen de este lugar para subsistir financieramente. Indica que el hecho de proteger la vida de cientos de familias vecinas de Parque Viva no tiene ninguna relación con atacar, limitar o censurar la libertad de prensa de Grupo Nación. Refiere que el Colegio de Periodistas de Costa Rica, luego de analizar el tema, concluyó que la libertad de prensa en nuestro país goza de buena salud y que, en ningún momento, se está atentando contra ese derecho. Agrega que las manifestaciones realizadas respecto a la capacidad financiera de Grupo Nación y las declaraciones realizadas por funcionarios de la CCSS al respecto, resultan válidas y justificadas. Argumenta que, al cierre del primer trimestre del 2022, Grupo Nación visualiza una pérdida neta de 350 millones de colones, casi un 35% superior a la pérdida reflejada en marzo de 2021.

Por otra parte, señala como preocupante que el mayor activo que posee Grupo Nación, es decir, la propiedad en Llorente de Tibás, esté siendo traspasada a un fideicomiso junto con otras propiedades que este grupo ha estado adquiriendo, aun cuando vienen reportando pérdidas desde hace varios años atrás. Sostiene que Grupo Nación, como cualquier otro emisor de deuda que participa en el mercado nacional de valores, está en la obligación de aportar información veraz que respalde su salud financiera, y no escudarse en su supuesta actividad central como medio de comunicación para alegar ataques a la libertad de prensa cuando se le exija ajustarse a la legalidad. También, indica que la necesidad de sentir persecución por parte de los recurrentes defendiendo los intereses del Grupo Nación, llega al punto de asegurar que la cancelación del proyecto del tren eléctrico impulsado por el anterior gobierno, pasa por el hecho que una ramificación de la ruta pasaba por Parque Viva.

Sin embargo, esa afirmación es falsa y sostiene que la decisión de no continuar con dicho proyecto fue pensada en beneficio de la ciudadanía, donde un proyecto mejor pensado y elaborado representaría mayores beneficios para todos. Refiere que los recurrentes olvidan indicar que, según noticia publicada en el medio de comunicación CRhoy.com, el gobierno de turno y el Grupo Nación firmaron un convenio que incrementaría el costo del tren eléctrico en casi 150 mil millones de colones para que la línea férrea pasara por las inmediaciones de Parque Viva. Menciona que, como costarricense y funcionario público, tiene la obligación y el derecho de pronunciarse enérgicamente ante situaciones que pongan en peligro la salud pública del pueblo. Indica que este es un derecho constitucional que le asiste de manifestar de manera libre sus pensamientos, cosa que hará de la forma más vehemente, cuando se trate de proteger los derechos de las familias costarricenses.

Señala que recientemente, la Sala Constitucional, en la Sentencia No. 9855-2022, se pronunció sobre el derecho de los servidores públicos a expresar sus opiniones. Asimismo, refiere a lo dispuesto por la Corte Interamericana de Derechos Humanos en el caso Nombre136 vs. Venezuela, donde se indicó que, a pesar que los pronunciamientos vertidos hayan tenido un contenido fuerte y crítico que, incluso, puede ser valorado de ofensivo, constituyen expresiones legítimas de pensamiento. Agrega que resulta inevitable cuestionarse si Grupo Nación está actuando ajustado al principio noveno de la Declaración de Chapultepec y si, una vez analizados todos los criterios de las entidades especializadas, la credibilidad y compromiso con la verdad no está en entredicho. Afirma, entonces, que no se está ejerciendo ninguna clase de censura, ni directa o indirecta en contra de Grupo Nación. Señala que el medio de comunicación continúa operando de forma normal, informando al pueblo costarricense de acuerdo con su línea editorial y esta garantía nunca será trasgredida.

Visto lo anterior, tenemos entonces el agravio formulado por los recurrentes, en el sentido que el cierre de Parque Viva (aunado a otras manifestaciones vertidas por el Nombre138 Nombre01), representó una materialización a las amenazas giradas por esta autoridad tendente a destruir a Grupo Nación S.A. (del cual, a su vez, forma parte el Diario La Nación) provocando, en consecuencia, un quebranto indirecto a la libertad de expresión, habida cuenta que dicho establecimiento se creó para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de estos experimentada en los últimos años. De otra parte, contamos con la versión del mandatario de la República, quien sostiene que no se ha violentado la libertad de expresión, que el medio de comunicación continúa a la fecha funcionando normalmente y que el dictado de la orden sanitaria en cuestión y el cierre de Parque Viva lo que busca es proteger la vida de cientos de familias vecinas de dicho recinto. Además, el señor Nombre138 argumenta que cuenta con pleno derecho a manifestar de forma libre lo que piensa, sobre todo cuando se trata de proteger los derechos de las familias costarricenses.

Cabe recordar que, en el apartado anterior de esta sentencia, se indicó que el cierre de Parque Viva llevado a cabo por el Ministerio de Salud el 8 de julio del presente año mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (emitida el 8 de julio de 2022 y rubricada electrónicamente a las 12:37:21 hrs.)., se realizó, a su vez, mediante un acto administrativo considerado por este Tribunal como arbitrario, carente de sustento y, también, desproporcionado (a esta conclusión, se aclara, arribó esta jurisdicción independientemente de lo que se conozca en este nuevo apartado). Ahora, estima esta Sala que, para determinar si dicha actuación supuso igualmente una restricción o limitación indirecta (censura velada) a la libertad de expresión, esta se debe examinar, de manera concomitante, conforme el resto de acontecimientos acaecidos, incluyendo las circunstancias y el contexto en el cual se presentaron. De este modo, se hará primeramente un repaso por algunos de los principales hechos que han rodeado la emisión concreta de dicha orden sanitaria.

Así, es importante señalar en primer término, que, en este asunto, se ha tenido por demostrado que el Diario La Nación forma parte Nombre03 S.A.; corporación última que, a su vez, adquirió hace algunos años Parque Viva, como medio, en este caso en particular, para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.

Asimismo, consta en autos que, a la luz de la contienda electoral (en específico las votaciones realizadas en nuestro país para elegir Nombre138 Nombre01 este año 2022), el Diario La Nación realizó una serie de publicaciones en contra del entonces candidato –hoy, Nombre138 Nombre01–, Nombre15. En particular, se demostró que el día 30 de agosto de 2021, dicho periódico publicó una noticia respecto a las sanciones por acoso sexual impuestas al citado candidato mientras era funcionario del Banco Mundial. Posteriormente, sobre este mismo tema, el diario realizó otras publicaciones los días 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, 1° y 25 de abril de 2022. Asimismo, consta que una noticia mediante la cual se criticaba la propuesta de Nombre58 de gobernar mediante referendos, fue publicada por dicho medio el día 13 de febrero de 2022. Por su parte, noticias tocantes a las estructuras paralelas de financiamiento de la campaña política del hoy Presidente, fueron publicadas por el Diario Nación, entre otros, los días 5 de marzo y 29 de marzo de 2022.

Se ha demostrado también que, de forma paralela o concomitante a las anteriores publicaciones periodísticas, Nombre58, siendo candidato presidencial, realizó una serie de manifestaciones en contra directamente del Diario La Nación. Así, consta que el 29 de enero de 2022, Nombre58 pronunció públicamente lo siguiente ante un grupo de seguidores:

“(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Nombre16, óigame el otro (…) Nombre17, óigame Nombre18. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)”. (El destacado no forma parte del original).

Igualmente, se acreditó que el 6 de febrero de 2022, el entonces candidato presidencial, al momento de emitir su voto, manifestó expresamente al medio de comunicación AM Prensa lo siguiente:

“(…) Yo no dije que la prensa fuera canalla. En Costa Rica hay prensa Nombre148 (…) porque hay prensa que miente (…) que está al servicio de los grupos poderosos, que han estado dedicados a quitar y poner presidentes y eso se les acabó (…)”. (El destacado no forma parte del original).

Además, ante una consulta planteada al efecto por el periodista, Nombre51, en esta última ocasión, aclaró concretamente que se refería a “(…) La Nación, Canal 7, CRhoy (…)” y sostuvo que esto lo decía “(…) transparente y claramente (…)”. (El destacado no forma parte del original).

En esa misma línea (aunque sin mencionar nombres concretos de medios de comunicación), se demostró que el 30 de enero de ese mismo año, en cierre de campaña (correspondiente a la primera ronda electoral), el candidato presidencial Nombre51 públicamente señaló lo siguiente:

“(…) pasamos de la sociedad más igualitaria de América Latina a una de las más desiguales del mundo (…) para ser más millonarios a (…) quienes controlan a esos medios de desinformación de difamación y de mentira (…) lo dijimos, dijimos que había que limpiar la casa y se asustaron porque al principio ¿a quién le importaba Nombre51? a nadie (…) el mismo día que Nombre57 anunció su candidatura empezaron a soltar el veneno, el odio, la mentira y la calumnia, ahí fue donde (…) empezaron a temblar, por eso lo hacen (…) por este tsunami que los va a barrer como la basura de la casa (…) tinta y no sangre, pero que no va a tener menos relevancia histórica (…) porque aquí le estamos diciendo a los mismos de siempre: se les acabó la fiesta se les acabó la fiesta (…)”. (El destacado no forma parte del original).

Aunado a ello, es importante tener presente que en este asunto se ha demostrado también que el hoy Nombre138 Nombre01, se ha referido a la prensa, en términos generales, como “la prensa Nombre148 y vendida”. Esto, por ejemplo, quedó de manifiesto en la noticia publicada por el medio de comunicación Columbia en su plataforma digital el día 7 de febrero de 2022; oportunidad en la cual, además, el mandatario indicó que dos o tres medios de este país se iban a ver muy afectados en un gobierno liderado por su persona. En esta noticia, se consignaron las siguientes manifestaciones expresas realizadas por Nombre51:

“(…) En Costa Rica, óigame claro y duro, hay prensa Nombre148 comprada y vendida, no toda la prensa es así, aquí hay gente honesta en este país, la enorme mayoría, pero hay gente que no es honesta, lo mismo con la prensa (…) en Costa Rica (…) existen dos o tres medios muy importantes que están al servicio de intereses que se van a ver muy afectados en un gobierno de Nombre51 y que nos han hecho lo imposible por un fusilamiento y un linchamiento político (…)”. (El destacado no forma parte del original).

Asimismo, el actual Nombre138 Nombre01 ha comparado públicamente a la prensa de este país con ratas y otras especies de la fauna. En ese particular, consta que el 3 de agosto de 2022, en conferencia de prensa, dicha autoridad, dirigiéndose a la Ministra de Salud, sostuvo:

“(…) La veo afectada con los medios y la entiendo, pero le voy a ser muy franco, yo a esos medios y a los de su especie, porque son una especie (…) la gente habla de la prensa, eso es como hablar de la fauna, hay rinocerontes, hay mapaches, hay ratas, hay aves (…) A la especie de prensa que usted está hablando yo no les creo (…) no se moleste con ellos, déjelos que sigan hundiéndose (…)”. (El destacado no forma parte del original).

Adicionalmente a lo supra citado, conviene tener presente una serie de eventos que han acontecido, relacionados con este mismo tema. En ese particular, debe tenerse presente que el día 6 de julio de 2022, en conferencia de prensa, un periodista del medio El Guardián CR, consultó al ya Nombre138 Nombre01 su criterio tocante al tema de la Caja Costarricense de Seguro Social y la solicitud que se hizo a la Nombre02 respecto a los bonos emitidos por Grupo Nación. Al respecto, consta que el mandatario manifestó que efectivamente existe un tema muy serio con bonos que gobiernos anteriores compraron emitidos por La Nación. También indicó que se encuentra preocupado respecto a la capacidad de pago que tendría ese medio (la cual, en su criterio, “parece muy muy leve”), en virtud de algunas acciones contables y de desviación de activos que debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos. Luego de emitir criterio al respecto Nombre59, Nombre138 Ejecutivo de la CCSS, el Nombre138 Nombre01 señaló expresamente lo siguiente:

“(…) La rentabilidad de la Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. Y entonces uno se pregunta si esa tendencia de pérdidas continúa, yo no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja (…) ¿qué pasa si a la Nación se le ahorca el flujo de caja y no está la propiedad porque está en otra parte? Esa es la pregunta y yo creo que don Nombre149 lo expresó en términos técnicos muy bien pero idiay, él tiene la obligación de hacer eso. Y yo le pedí, además, de que ya lo estaba haciendo cuando yo lo llamé para preguntarle, me dice no, ya lo estamos haciendo y está la consulta (…)”.

Se ha demostrado también, que, en virtud de lo ocurrido ese 6 de julio del presente año en conferencia de prensa, el día 7 de julio de 2022, en la sección de política del Diario La Nación, se publicó una nota en la cual, entre otros aspectos, se explicó porqué las argumentaciones vertidas por el mandatario presidencial respecto a la capacidad financiera Nombre03 no eran certeras. Aunado a ello, consta que, en esa misma nota, se consignó que el Director Ejecutivo de Grupo Nación señaló que “(…) Parque Viva volvió a tener actividad, a partir de marzo de 2022, después de estar dos años sin eventos producto de la pandemia de coronavirus. Asimismo, recordó que la crisis sanitaria provocó una afectación generalizada en el mundo. Pese a ello, enfatizó, la compañía logró generar flujo de caja (…)”. (El destacado no forma parte del original).

En este punto, hay que recordar que, al día siguiente, sea, el 8 de julio de 2022, el Ministerio de Salud giró la orden sanitaria que dispuso el cierre de Parque Viva para cualquier tipo de actividad.

Aunado a lo anteriormente señalado, cabe reiterar que en este asunto se ha demostrado que el día 13 de julio de 2022, el Nombre138 Nombre01, en conferencia de prensa, se manifestó en contra del proyecto vial propuesto por Grupo Nación para atender los problemas de congestionamiento que se generan en la zona de La Guácima, donde está ubicado Parque Viva. Consta que, en tal ocasión, dicha autoridad indicó:

“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Dirección01 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.

Asimismo, se tiene por acreditado que el 20 de julio de 2022, el Presidente, en conferencia de prensa, sostuvo que uno de los motivos para cancelar el plan del tren eléctrico se debe a la existencia de un ramal que pasa por Parque Viva, cuyo costo sería de 150.000 millones de colones. Específicamente, dicha autoridad manifestó:

“(…) Entendemos que el gran área metropolitana necesita una solución al transporte. Cuando uno ve que a este trencito le tenían un ramal de 150.000 millones de colones al Parque Viva, uno todavía se preocupa más. Entonces todo junto nos dice “esto no va” (…)”.

Analizados los eventos supra citados, de forma conjunta, resulta claro para este Tribunal que el señor Nombre15, tanto como candidato presidencial como en ejercicio de la presidencia de la República, ha emitido una serie de manifestaciones claras, directas y contundentes en contra del Diario La Nación, mediante las cuales externó su intención de destruir a dicho medio de comunicación, tal y como lo hace un tsunami, según los términos empleados expresamente por este. Esta intención es clara al observarse lo declarado por Nombre58 públicamente los días 29 de enero y 6 de febrero del año en curso, oportunidades en las que no solo hizo referencia a La Nación, sino también a Canal 7 y al medio CRhoy, a los que, además, tildó como “prensa canalla”. Igualmente, no puede dejarse pasar por desapercibido que el entonces candidato presidencial, el día 30 de enero de 2022, durante el cierre de su campaña, pese a no mencionar nombres en concreto, sí indicó públicamente que barrería a los medios de comunicación “como la basura de la casa”, por el tsunami que él y su partido representan o ejecutarían para acabar con su “fiesta”.

De consuno con lo anterior, es importante también hacer notar que el hoy mandatario, en esta misma época, en particular, el día 7 de febrero del presente año, lanzó nuevamente epítetos en contra de la prensa, a la que tildó de Nombre148 y vendida y afirmó, de manera contundente, que dos o tres medios de comunicación se verían muy afectados ante un posible gobierno liderado por su persona. Además, el día 3 de agosto de 2022, Nombre58 aprovechó su intervención junto con la Ministra de Salud para comparar a la prensa con ratas y otras especies de la fauna.

Aunado a esto, esta jurisdicción observa también que, precisamente, el estado de cosas anterior coincidió con la misma época en que el Diario La Nación publicó varias noticias respecto a Nombre58, cuando, para entonces, ostentaba la condición de candidato presidencial (a saber, desde agosto de 2021 hasta, al menos, abril de 2022). Noticias que, como se dijo, no podrían, de modo alguno, ser del agrado del hoy mandatario, mucho menos, en plena campaña electoral, ya que estas, tal y como se dijo, guardaban relación, entre otros, con temas de acoso sexual por las que este había sido sancionado durante su paso como empleado del Banco Mundial o bien, con las estructuras paralelas de financiamiento de su campaña política (noticias sobre las que, además, se aclara, esta jurisdicción no emite criterio ni pronunciamiento alguno respecto a su veracidad o no, pues escapa de su competencia, ni es el objeto de este amparo).

Así las cosas, no cabe la menor duda para este órgano constitucional que el mandatario giró una serie de amenazas en contra de la prensa, en particular, del Diario La Nación, como medio para amedrentarlo e intimidarlo. El hoy Presidente, al sentirse ofendido o agraviado con las divulgaciones realizadas por dicho medio de comunicación (línea editorial), optó, entonces, tal y como se ha demostrado, por atacarlo abierta y públicamente, “claro y duro” como él mismo lo ha dicho. Esto, cabe destacar, tal y como también se ha demostrado, no se llevó a cabo de forma aislada, pues, por el contrario, es evidente que se trata de una serie de manifestaciones (ataques y amenazas directas e indirectas), dirigidas en un mismo sentido y vertidas en una misma época, paralela o concomitantemente a la publicación de las referidas noticias.

Ahora, en este contexto, se puede pensar o sería válido entender que la orden sanitaria emitida en contra de Parque Viva (a través de la cual se dispuso su cierre para cualquier tipo de evento), materializa el cierre del medio de comunicación.

Esto, por cuanto dicho cierre –además de tener las particularidades ya descritas–, perjudica por supuesto las finanzas de Parque Viva y, por ende, Nombre03 S.A, pero también, de forma concomitante, genera una afectación al medio de comunicación Diario La Nación. Cabe recordar en este punto, una vez más, que, tanto el Periódico La Nación como el referido parque, forman parte de dicha sociedad o conglomerado financiero (llamado Grupo Nación S.A.), y que, precisamente, este recinto comercial de eventos fue adquirido para diversificar las fuentes de ingreso y compensar la pérdida de ganancias sufridas en virtud de la migración de la publicidad hacia las plataformas digitales; es decir, como mecanismo para coadyuvar o cooperar con el financiamiento o mantenimiento actual de este tipo en particular de medio de prensa, según los términos ampliamente explicados en el considerando VIII de esta sentencia.

De modo tal que, si se afecta Parque Viva tal y como ha ocurrido (y este deja de producir ingresos por encontrarse cerrado totalmente, al prohibírsele realizar cualquier tipo de actividad, según así se ordenó), se afecta económicamente también e, ineludiblemente, el Diario La Nación, como parte que es del conglomerado financiero que representa Grupo Nación S.A.. En otras palabras, si se perjudica la fórmula o el mecanismo utilizado por Grupo Nación para generar ingresos y coadyuvar con los gastos que genera Diario La Nación, obviamente, esto repercutirá negativamente en este último medio. En estos mismos términos lo explicó esta Sala en los ya citados Votos Nos. 1782-2015 y 15220-2016, al indicar que, si se limita el ingreso económico de un medio de comunicación, también se llega a perjudicarlo o, inclusive, a eliminarlo. Nótese que si bien los recurrentes han sido claros al indicar que sus salarios, como periodistas, en este momento, no dependen absolutamente del funcionamiento de Parque Viva (tal y como así lo entiende y menciona el mandatario en el informe rendido a este Tribunal), lo cierto es que sí han manifestado que el cierre del recinto genera una afectación de índole económica que perjudica e incide negativamente en el medio de comunicación.

Aunado a ello, los accionantes han señalado que Parque Viva forma parte de las estructuras a las que hace referencia el Nombre138 Nombre01 y que son, precisamente, las que “sustentan su libre ejercicio del periodismo”. Además, han sido claros al indicar que la presión ejercida sobre las finanzas de la empresa con su cierre, “pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometen”. En este particular, resulta menester apuntar que, tal y como se demostró en el elenco de hechos probados de esta sentencia, para este tercer cuatrimestre del año 2022 se estaban organizando, al menos, cuatro eventos de relevancia en el Parque Viva, los cuales representan la captación de importantes ingresos para Grupo Nación, de los que, igualmente, se ve beneficiado el medio de comunicación Diario La Nación, según los términos ya explicados. No obstante, tal y como igualmente se acreditó, el Ministerio de Salud, los días 14 y 15 de julio de 2022, denegó a los productores de tales eventos la entrega de las certificaciones de aforos solicitados, en virtud de la orden de cierre girada en contra del referido recinto, provocando con esto, claramente, una significativa afectación económica al Grupo Nación y, por ende, al medio de comunicación.

Cabe indicar, también, sobre este último aspecto, que llama la atención de este Tribunal Constitucional que el cierre de Parque Viva se haya ordenado el día 8 de julio de 2022, tan sólo un día después de que el Diario La Nación publicara una nota mediante la cual se defendió de las manifestaciones relacionadas con sus finanzas externadas el 6 de julio de 2022 por el Nombre138 Nombre01, en la cual, a su vez, el Director Ejecutivo de Grupo Nación señaló que el recinto bajo estudio había vuelto a tener actividad en marzo de 2022 y que había logrado generar flujo de caja. Igualmente, no puede perderse de vista que el mandatario, en el informe rendido a esta Sala, concluyó que La Nación sí depende de Parque Viva para subsistir financieramente, lo cual reafirma que el cierre realizado a este sitio le perjudica, y que las secuelas producidas con dicho acto no resultaban ajenas a su conocimiento. En consecuencia, se está ante la emisión de un acto atropellado, arbitrario y desproporcionado que debilita la estabilidad financiera del Diario La Nación.

Ahora, según lo analizado ampliamente en los considerandos VII y VIII de esta sentencia, lo ocurrido con Parque Viva y la afectación que le provoca al medio de prensa, se traduce, a su vez, sin lugar a dudas, en una violación indirecta a la libertad de expresión, sea, en una censura velada. Esto, principalmente, porque las repercusiones negativas a nivel económico que se generan en Diario La Nación podrían conllevar, a modo de ejemplo y ante una crisis financiera, a tomarse la decisión, a corto, mediano o largo plazo, de recortar o prescindir de personal –entre ellos periodistas–, hasta, incluso, proceder con el cierre de sus operaciones de forma definitiva, impidiendo con esto que dicho medio y, por ende, los que en este trabajan, continúen ejerciendo la libertad de prensa, como manifestación de la libertad de expresión. Tal y como la Corte IDH lo dejó manifiesto en el ya citado caso Nombre162 y otros vs. Venezuela, la restricción a la libertad de expresión en este tipo de situaciones no sólo afecta al medio de comunicación (persona jurídica), sino también a las personas naturales (desde accionistas hasta los periodistas que allí laboran).

Concomitantemente, es claro que el cierre de Parque Viva, según los términos acá expuestos, se traduce también en una especie de llamada de atención o de advertencia para el medio de comunicación Diario La Nación en virtud de su línea editorial, pretendiéndose con esto su giro a favor del gobierno o, simplemente, producir un efecto disuasivo o atemorizador y, con ello, callar o aplacar por completo las voces de su director y de los periodistas. Un claro e incuestionable aviso girado al Periódico La Nación para que se abstenga de incurrir en los hechos ya descritos, sea, la publicación de noticias que perjudiquen la imagen del mandatario o del gobierno en general. Se castiga, entonces, por lo ya publicado y dado a conocer respecto al mandatario, su partido político y su forma de pretender gobernar, pero, también, se gira una advertencia para que este tipo de noticias no se vuelvan a divulgar a la ciudadanía.

Además, es importante hacer notar que este mensaje amenazante que atenta contra la libertad de expresión no sólo se envía al Diario La Nación, sino, también, peligrosamente, al resto de medios de comunicación del país que osen publicar alguna noticia en contra del Nombre138 y de su gobierno.

Así las cosas, es evidente que el cierre de Parque Viva es un mecanismo indirecto, atropellado e ilegítimo que violenta la libertad de expresión. Estado de cosas anterior que proscribe la propia Convención Americana sobre Derechos Humanos en su numeral 13.3 y que, según también aclara, no solo se puede llevar a cabo a través del “abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información”, sino también, “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. La clausura de Parque Viva, encaja perfectamente en esta última descripción y se convierte así en un ejemplo más, al igual que los citados en el considerando VII de esta sentencia, de cómo se puede violentar indirectamente el derecho fundamental a la libertad de expresión.

Hemos de deparar acá que, pese a que el Nombre138 Nombre01 sostiene que en el cierre de Parque Viva medió un fin legítimo (como es salvaguardar la vida y la salud de las personas), lo cierto es que no puede dejarse pasar por alto que dicho acto, también (aparte de haber sido dictado de forma arbitraria, carezca de fundamento y resulte desproporcionado según los términos ya descritos), vulnera uno de los derechos fundamentales más relevantes en nuestro Estado Constitucional de Derecho como lo es la libertad de expresión y la libertad de prensa, como manifestación de esta última. El mandatario argumenta que se actuó salvaguardando esos bienes jurídicos haciéndose uso, incluso, de una potestad permitida por el Estado (como lo es el giro de órdenes sanitarias); sin embargo, lo cierto es que, en el fondo, con dicha tesis se perjudica y castiga (de la mano del Ministerio de Salud), al medio de comunicación, configurándose así, a todas luces, una clara y evidente desviación ilegítima del poder. En esencia, se revistió de una aparente legalidad, la afectación a las libertades públicas señaladas.

El cierre de Parque Viva se llevó a cabo con abuso de poder, a través de un mecanismo indirecto (disfrazado de acción legítima), con un propósito claramente distinto al que se señaló, tanto en la orden sanitaria como ante esta Sala Constitucional, y esto, esta última jurisdicción, lo tiene absolutamente claro. Así las cosas, nos encontramos frente a lo que este Tribunal ya ha denominado “(…) una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente (…)” (Voto No. 15220-2016).

Nótese que se hace uso de un discurso absolutamente creíble para terceros (como es la defensa de intereses públicos), para justificar el cierre arbitrario que se hizo de Parque Viva, pero, para, concomitantemente, perjudicar flagrantemente al medio de comunicación Diario La Nación, como represalia por las noticias publicadas en contra del mandatario y su partido político, las cuales, se destaca, no dejaron de ser divulgadas pese a las amenazas giradas por este último. Amenazas que, cabe reiterar, fueron emitidas en varias oportunidades, de forma clara y directa en contra del medio de comunicación Diario La Nación, hasta que finalmente se materializaron o ejecutaron, tal y como así lo hizo en su oportunidad el gobierno venezolano, al arremeter en contra del medio de comunicación Radio Caracas Televisión por difundir noticias en contra de su régimen, y cuya actuación fue condenada por la Corte IDH al sostener, entre otros aspectos de interés, que no es posible restringir arbitrariamente el derecho a la libertad de expresión con fundamento en la discrepancia política que pueda generar al gobierno una determinada línea editorial (caso Nombre162 y otros vs. Venezuela, sentencia de 22 de junio de 2015 a la que se hizo referencia ampliamente en el considerando VII de este voto y cuyo contenido resulta plenamente aplicable a este proceso de amparo).

Adicionalmente, debe tomarse en cuenta que el Nombre138 también se ha referido a la prensa de forma despectiva (utilizando palabras confrontativas o comparándola con ratas y otras especias de fauna) y que, incluso, hizo públicas amenazas al Grupo Nación a través de otras distintas formas, como lo ha sido cuestionando públicamente el estado de sus finanzas (a propósito de bonos emitidos y comprados por el Estado), arremetiendo contra el proyecto vial propuesto para coadyuvar en el problema de congestionamiento vial que se genera en La Guácima y señalando, como una de las causas para cancelar el plan del tren eléctrico, el hecho de existir un ramal que pasa por Parque Viva. En esencia, llevando a cabo una campaña para desacreditar públicamente al citado medio de prensa haciendo alusión a diversos temas de interés nacional (respecto a los cuales, se aclara también, esta Sala omite pronunciarse, por escapar del ámbito de sus competencias y no ser el meollo de este amparo).

Tocante a estas manifestaciones, el Nombre138 Nombre01 argumenta que le asiste el derecho constitucional de exteriorizar de manera libre sus pensamientos y, en ese particular, cita la Sentencia No. 9855-2022 dictada por esta jurisdicción constitucional (donde se hizo referencia al derecho de los servidores públicos a manifestar sus opiniones), así como lo dispuesto por la Corte IDH en el caso Nombre136 vs. Venezuela, donde se indicó que pronunciamientos realizados por altos funcionarios del Estado “(…) aunque pueden tener un contenido fuerte y crítico que incluso puede ser valorado como ofensivo, constituyen expresiones legitimas de pensamientos y opiniones sobre las formas particulares que puede tener un medio de comunicación de ejercer el periodismo que se encuentran protegidas y garantizadas bajo el artículo 13 de la Convención Americana (…)”. No obstante lo anterior, es importante destacar que en ese mismo pronunciamiento al que alude el mandatario, la Corte IDH también dispuso que:

“(…) 139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento.

Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado (…)”. (sentencia de 28 de enero de 2009) (El destacado no forma parte del original).

Además, debe tomarse en cuenta que si bien, esta Sala, en la citada Sentencia No. 9855-2022 de las 14:17 hrs. de 29 de abril de 2022, hizo referencia al derecho que le asiste a los funcionarios públicos de manifestar sus opiniones, lo cierto es que los hechos analizados en dicha oportunidad y por los cuales se acogió el entonces recurso de amparo formulado, distan muchísimo de las circunstancias estudiadas en este nuevo asunto. Esto, habida cuenta que, en tal ocasión, se conoció el caso de una funcionaria judicial a quien se le inició un procedimiento administrativo en virtud de manifestaciones giradas en contra de una ex alta autoridad de la misma institución para la cual presta servicios. Cosa muy distinta a lo que ocurre en este caso, donde ha sido el propio Nombre138 Nombre01 –funcionario público de más alto rango en nuestro país, con gran poder e influencia–, quien ha hecho las manifestaciones arriba señaladas y a quien si bien le asiste el derecho a opinar lo que piensa, lo cierto es que esto lo debe llevar a cabo bajo ciertos límites en virtud de su investidura (según así lo explicó la Corte IDH en la sentencia supra descrita) y, además, sin vulnerar otros derechos o en demérito de otras libertades igualmente esenciales, sobre todo, en un Estado Democrático de Derecho.

A propósito de lo anteriormente consignado, cabe recordarle al mandatario presidencial algo muy importante sobre lo cual esta Sala Constitucional deparó y explicó ampliamente en el considerando VI de esta Sentencia, y es el hecho que los funcionarios públicos que ostentan una alta jerarquía, tal y como es su caso, se encuentran obligados a tolerar, con mayor margen o amplitud, las críticas a la cuales son sometidos y están continuamente expuestos precisamente por el cargo que ostentan y en virtud del interés público que envuelve las actuaciones que llevan a cabo. Así fue consignado por este Tribunal en la Sentencia No. 15220-2016 supra citada e, incluso, por la Corte Europea de Derechos Humanos, al referirse a lo dispuesto en el artículo 10.2 de la Convención Europea, tal y como también se consignó líneas arriba. Además, cabe reiterar que la misma Corte Europea de Derechos Humanos (citada por la Corte IDH en el caso Nombre61 vs. Costa Rica), ha sostenido que la libertad de expresión no debe ser garantizada solamente respecto a la difusión de información o ideas que son recibidas favorablemente o se estiman inofensivas, sino también respecto a aquellas que ofenden, resultan ingratas o perturban el Estado.

Aunado a esto, es importante también destacar que este derecho a la crítica –por así denominarlo–, del cual gozan, entre otros, los medios de prensa, toma mayor fuerza ante distintas circunstancias, como lo es, por ejemplo, en una contienda electoral, donde los ciudadanos tienen el derecho a conocer quiénes son los candidatos o los postulados a ocupar uno de los más importantes puestos en el país, de hecho, como se dijo, el de más alto rango. Esto, precisamente, fue lo que la Corte IDH explicó amplia y claramente en el también ya citado caso Nombre67 vs Paraguay; oportunidad en la cual, cabe recordar, se hizo referencia a la importancia de la libertad de expresión en el marco de una campaña electoral y se sostuvo, entre otros aspectos de sumo interés, lo siguiente:

“(…) 90. (…) El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar (…) Al respecto, la Corte Europea ha establecido que (…) Por esta razón (…) es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones (…)”.(El destacado no forma parte del original).

También, cabe apuntar que, en dicha ocasión, la Corte IDH señaló claramente que aquellas personas que se postulan a una candidatura para ocupar el puesto a la Presidencia Nombre01 se han expuesto voluntariamente al escrutinio público, por lo que, consecuentemente, corren el riesgo de ser sometidas a mayores críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público.

Debe observarse que en este caso resulta claro que, pese a lo consignado supra, Nombre15, desde que las noticias en cuestión fueron divulgadas, se ha dedicado a amenazar públicamente al Diario La Nación e, incluso, a justificar la emisión de actos tan lamentables como lo es el cierre arbitrario del Parque Viva. Todo esto, a pesar que el mandatario, como cualquier otro ciudadano que se sienta agraviado por publicaciones emitidas en su contra, cuenta con una serie de medios o mecanismos que le provee el ordenamiento jurídico y a los que puede recurrir legítimamente de forma ulterior para defender su honor o bien, para velar por la exactitud de la información divulgada (ejerciendo el derecho de rectificación y respuesta estatuido en los ordinales 66 y siguientes de la Ley de la Jurisdicción Constitucional y 14 de la Convención Americana sobre Derechos Humanos). Pese a tener a disposición estos instrumentos, no consta que el mandatario haya hecho uso de los mismos, dirigiendo por el contrario sus manifestaciones en contra del Diario La Nación de la forma arbitraria en que lo hizo y así ha quedado plenamente acreditado.

Bajo este estado de cosas, se observa entonces, que lo consignado en este asunto ha representado un quebranto al Estado Constitucional de Derecho, quien cuenta con una tradición democrática reconocida, incluso, a nivel internacional. Por ende, resulta imperiosa la intervención de este Tribunal Constitucional, sobre todo, si se toma en consideración, como también ya se ha dicho, que los ataques a los medios de comunicación independientes –como es precisamente el caso del Diario La Nación–, suelen ser los primeros objetivos de los sistemas políticos antidemocráticos y autoritarios o, al menos, de aquellos que se encaminan o se dirigen hacia eso. Esto, la historia y lo ocurrido en otras latitudes, así lo demuestran.

Las amenazas giradas por el mandatario Nombre01 contra el Diario La Nación hasta llegar a la afectación del Parque Viva, generando con ello una violación a la libertad de expresión y a la libertad de prensa, ha erosionado y resquebrajado indiscutiblemente nuestra democracia –la que, cabe destacar, con tanto esfuerzo forjaron nuestros antepasados– y, por ello, resulta imprescindible hacer este tipo de señalamiento para evitar que situaciones similares se repitan. Esto, pues hoy fue el Diario La Nación, pero, mañana, puede ser cualquier otro medio de comunicación.

Aunado a lo anterior, es importante destacar que, en este caso, no solo se ha vulnerado el derecho que tiene Diario La Nación de expresarse, de emitir críticas y divulgar, entre otras, noticias relacionadas con el hoy Nombre138 Nombre01 y la gestión realizada por su persona, antes y después de asumir dicho cargo (como medio, a su vez, para fiscalizar sus actuaciones en una sociedad democrática), sino que, también, se ha quebrantado el derecho que tienen los habitantes, en un Estado Constitucional de Derecho, de recibir este tipo de información; sea, la libertad de expresión vista desde su dimensión social. Si la prensa es callada arbitrariamente, pues entonces los habitantes se ven desprovistos de un importante y valioso mecanismo para conocer qué ocurre, sobre todo respecto a la gestión del gobierno (como mecanismo, a su vez, para ejercer control sobre sus actos y hacerse una opinión al respecto) y esto, sin lugar a dudas, representa igualmente una afrenta al sistema democrático costarricense.

Por todos los argumentos supra señalados, esta Sala estima que, en la especie, se ha producido un claro quebranto a lo dispuesto en el ordinal 29 de nuestra Carta Magna y a lo señalado en el numeral 13.3 de la Convención Americana sobre Derechos Humanos, el cual proscribe expresamente la censura velada o las restricciones indirectas realizadas “por cualquier medio”, al derecho a la libertad de expresión. Por consiguiente, lo que procede es acoger también este extremo del recurso, con las consecuencias que se dirán infra. Esto, no sin antes traer a colación lo que señala la Declaración de Chapultepec y resulta plenamente aplicable en este caso:

“La lucha por la libertad de expresión y de prensa, por cualquier medio, no es tarea de un día; es afán permanente. Se trata de una causa esencial para la democracia y la civilización en nuestro hemisferio. No sólo es baluarte y antídoto contra todo abuso de autoridad: es el aliento cívico de una sociedad. Defenderla día a día es honrar a nuestra historia y dominar nuestro destino”.

D. ACLARACIONES FINALES DE INTERÉS. Finalmente, esta Sala Constitucional estima pertinente, en este punto de la sentencia, dejar claros los siguientes aspectos:

Primero: A través de este voto, esta jurisdicción constitucional no está diciendo que se puede actuar en contra de lo que dicta el ordenamiento jurídico; no se propone o insta a actuar fuera del marco de la ley. Por el contrario, la Sala, lo que señala, es que la ley se debe aplicar correctamente y no de forma intempestiva, atropellada o arbitraria, tal y como se demostró que sucedió en el caso bajo estudio.

Segundo: Lo que se dispone en esta sentencia, no impide que se pueda continuar fiscalizando el ejercicio de emprendimientos comerciales, estén o no relacionados con medios de comunicación. Las potestades de control, supervisión y verificación del cumplimiento de los requisitos y permisos para el funcionamiento de estos establecimientos, se debe seguir haciendo, pero ajustándose al marco jurídico ya establecido, y no de la manera atropellada, arbitraria e intempestiva en que se llevó a cabo recientemente en el caso valorado en este proceso.

Tercero: En el sentido supraexpuesto, para el caso concreto, este Tribunal es consciente que se deben proteger y resguardar la vida, la salud y la integridad de los habitantes de la zona de La Guácima de Alajuela, y de los asistentes a las actividades que se realizan en el establecimiento denominado Parque Viva. Esta jurisdicción, tal y como se dijo líneas arriba, a través de copiosa jurisprudencia, ha procurado siempre salvaguardar estos derechos fundamentales y, esto es absolutamente indiscutible. Ahora, el ejercicio de las potestades públicas de que dispone la administración, se debe llevar a cabo de forma ajustada al bloque de legitimidad, y no de la manera atropellada en que se ha hecho en este caso en particular.

Cuarto: Debe quedar absolutamente claro, que esta sentencia no indica que cualquier actividad comercial ligada a un medio de comunicación queda abstraída de los controles que exige el ordenamiento jurídico. Además, como también se ha explicado, no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a las estructuras de financiamiento de los medios de comunicación, supone, en sí misma, una lesión refleja como la que se ha indicado. La lectura íntegra de esta sentencia no establece ni sugiere esa regla de manera alguna. Lo que sí se ha establecido y debe enfatizarse, es que el cierre de un negocio o establecimiento comercial, con el fin de acallar o silenciar a un medio de comunicación,significa en realidad un subterfugio para violar las libertades públicas y los derechos fundamentales, en particular, a la libertad de expresión y de prensa, y con ello, limitar, de manera indebida e indirecta, a estas libertades, las cuales,según lo explicado reiteradamente, son consustanciales con la existencia misma de la democracia; de ahí, la protección que merece ser brindada por este Tribunal Constitucional.

X. COROLARIO

En mérito de lo expuesto, se impone acoger el presente proceso de amparo, al haberse demostrado que el cierre de Parque Viva se llevó a cabo de forma arbitraria, sin un fundamento objetivo válido, como represalia por la línea editorial que ha sostenido Diario La Nación respecto al hoy Nombre138 Nombre15 y con el único objetivo de silenciar las voces de dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa protegidas constitucional y convencionalmente.

XI. NOTA DEL MAGISTRADO Nombre91

LA TUTELA REFORZADA DE LA LIBERTAD DE EXPRESIÓN EN EL PACTO DE SAN JOSÉ.

Este caso posee gran riqueza en el análisis constitucional y define un escenario inusual en el control del poder político. El Poder Ejecutivo, dentro de un sistema de frenos y contrapesos, requiere la supervisión y revisión judicial. La descripción detallada que se hace en el voto de mayoría concluye que la orden sanitaria MSP-DRRSCN-DARSA2-OS-0368-20022 es un acto administrativo “….abiertamente arbitrario, carente de fundamento certero y absolutamente desproporcionado..”. La sentencia que suscribo, describe hechos e indicios que sustentan tal conclusión. No es un tema menor que la instancia constitucional determine, mediante amparo, que las autoridades del Poder Ejecutivo han incurrido en un acto arbitrario. Se trata de un acto abiertamente arbitrario, incompatible con las reglas que imperan en un Estado de Derecho. El error o el exceso es un riesgo que siempre asume quien adopta decisiones que inciden en los derechos de terceros. A pesar de la gran cantidad de casos que conoce esta Sala por la vía de amparo, merece especial atención el conocimiento de casos como estos en donde, se denota una grave arbitrariedad en un acto vinculado con un tema de salud, pero además, es una violación a la libertad expresión, la cual tiene también un reconocimiento en el derecho internacional de los derechos humanos.

En una democracia, la autoridad política está sometida a una constante revisión de sus decisiones, ese es el equilibrio saludable que asegura el ejercicio razonable del poder presidencial o del parlamentario. Estimo que en este caso la actuación del Poder Ejecutivo configura una desviación poder, al realizar acciones que aparentan legitimidad, pero que carecen de sustento técnico y que lucen desproporcionadas. Desde la doctrina y desde la Ley General de la Administración Pública, la desviación de poder puede definirse como el ejercicio de potestades administrativas para fines distintos de los fijados por el Ordenamiento jurídico. La desviación de poder es “La persecución de un fin distinto del principal, con detrimento de éste...” (art.131.3 LGAP). Es un vicio en el fin del acto administrativo, el uso del poder con fines y por motivos distintos de aquellos por los cuales le fue conferido tal poder.

Ante la arbitrariedad, se pone a prueba la salud de la democracia, se ponen a prueba los controles institucionales y judiciales. En ese contradictorio se asegura que no se desborde el ejercicio del poder, así debemos vivir, entre controles y balances, es la dialéctica que evita el autoritarismo. Es la dialéctica de control a la que debe someterse el Poder Ejecutivo, especialmente el Nombre138 Nombre01. El ejercicio del poder requiere controles, objeciones y disidencias. No es fácil para quien tiene una delicada responsabilidad política, acertar siempre en las decisiones. En este caso, el camino emprendido resultó inadmisible en un Estado democrático de Derecho, pero subsiste, incólume, el poder que tiene la Administración para emprender otras acciones que permitan tutelar la salud y asegurar la interdicción de la arbitrariedad, protegiendo, además, la libertad de un medio de prensa. En esta materia, el Poder Ejecutivo tiene amplias facultades para abordar los graves problemas de circulación de vehículos en todas las carreteras del país.

En este caso, además de la grosera arbitrariedad del Poder Ejecutivo en el ejercicio de sus potestades, se configura una restricción indirecta de la libertad de expresión y de pensamiento. El derecho requiere sutileza, requiere matices, por eso exige un marco jurídico que capte la impredecible realidad y con mayor brillo, si se trata del control del poder. Por eso el artículo trece, inciso tercero, de la Convención Americana de Derechos Humanos se refiere a los medios o vías indirectas para restringir la libertad de expresión: la definición es amplia, es un abanico inagotable de posibilidades, como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, de enseres y aparatos usados en la difusión de la información “…o por cualquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones..”; es una definición abierta, flexible, que incluye una multiplicidad de acciones abusivas en que el poder formal restringe un derecho tan importante.

El derecho y su aplicación, requiere sutilezas, exige una valoración circunstanciada, para captar la realidad, tan rica en giros y enmascaramientos. Si no fuera así, de poco sirve el control jurídico, especialmente si se trata de potenciar la vigencia efectiva de los derechos fundamentales. En este caso, no sólo hay una grosera violación de derechos fundamentales al debido proceso, sino que la acción gubernamental pretende utilizar la orden sanitaria para limitar un medio de prensa. Esto parecía impensable hace treinta años, pero los cambios sociales y económicos, han transformado las estructuras económicas de los medios de prensa privados. No es el mejor escenario para darle más independencia a la prensa, pero esa es la realidad. Muchos medios de comunicación son parte de un conglomerado económico complejo, así se asegura su supervivencia económica y mediática. Esa es la realidad económica de muchos medios de prensa; su vigencia como medio de comunicación se logra mediante estructuras complejas de personas jurídicas en las que impera el poder anónimo del dinero, sin que uno pueda identificar, claramente, a los propietarios de esos medios; son parte de un entramado complejo en que convergen grupos económicos, con sus vasos comunicantes.

Mediante esta estructura diversa y compleja, el medio de comunicación se financia gracias a un variado ensamble de empresas que no se dedican, directamente, a la actividad periodística. Todo ha cambiado en los medios de comunicación, es una realidad que no puede ignorarse, asumiendo, con inadmisible simplismo, que el medio de comunicación es sólo su denominación y actividad periodística. Es una transformación similar a la que ha ocurrido en las redes sociales, en las que impera el anonimato y las raíces de su actividad no son visibles para el ciudadano común. Los medios de prensa actuales, son parte de una estructura jurídica compleja, con diversidad de actividades y con vasos comunicantes en relación a la estructura económica a la que pertenece el medio de prensa. Se ha agravado el anonimato, al igual que ha ocurrido con las redes sociales, en las que ni siquiera existe seguridad sobre la identidad de la persona que se presenta como partícipe de un debate público.

Este contexto empresarial y económico, descrito en términos muy sencillos, es lo que impregna el caso del cierre del Parque Viva. Las acciones indirectas pueden manifestarse en actos muy concretos y contundentes, como el cierre de una actividad por razones de salud o bien, podría ser, por acciones de la administración tributaria. La norma de la Convención Americana de Derechos Humanos posee una flexibilidad inusual, sin que limite qué puede considerarse acción indirecta, sino que deja que la realidad, tan variada e impredecible, se incluya dentro de una previsión normativa amplia y flexible. Este concepto abierto permitió que se considerara como restricción indirecta a la libertad de expresión, la colegiación obligatoria de los periodistas, según lo determinó la Opinión Consultiva OC-5/85, del 13 de noviembre de 1985, de la Corte Interamericana; se catalogó como una restricción indirecta al ejercicio de la libre expresión el que se exija la colegiación obligatoria del periodismo, en razones de orden público.

Esta restricción limita de modo permanente un derecho fundamental, en perjuicio de quienes no cuentan con dicha colegiación. (ver consulta de la CoIDH, 1985: párrafos 48 y 76). Destaco también el Caso Nombre65 vs. Perú, la CoIDH catalogó como restricción indirecta a la libertad de expresión el uso arbitrario de las facultades regulatorias del Estado cuando son ejercidas para intimidar a un medio de comunicación (ver de la CoIDH, 2001: párrafos 158-163). Los precedentes de la Corte han señalado que también existe una restricción indirecta cuando las declaraciones de funcionarios públicos, pueden calificarse como formas de injerencia directa o indirecta, o presión inadmisible en los derechos de quienes pretenden contribuir a la deliberación pública expresando y difundiendo su pensamiento (ver CoIDH; 2009: párrafo 151); igualmente, se ha considerado como restricción indirecta cuando se exigen acreditaciones de manera desproporcionada o discriminatoria a los medios de prensa para la participación en eventos oficiales (ver CoIDH, 2009: párrafo 375).

Todos estos ejemplos demuestran la amplitud de la previsión que contiene el apartado tercero del artículo trece del Pacto de San José. La norma mencionada no impone ninguna restricción, sólo define un concepto abierto que incluye todas las posibles acciones gubernamentales que aplican un procedimiento indirecto, para restringir la libertad de expresión. No hay nada novedoso en lo que señaló esta Corte en la decisión que suscribo, sólo aplicó al caso concreto, una previsión normativa cuya amplitud y flexibilidad permite conocer variadas formas de intervención del poder público sobre la libertad de expresión. Este caso posee dos elementos claves: el acto manifiestamente arbitrario en el cierre del parque Viva y la restricción indirecta a un medio de prensa, según las previsiones de la Convención Americana de Derechos Humanos.

La discusión y valoración de este amparo, me hizo recordar el voto 2016-15220. En esa sentencia admitimos una limitación indirecta de la libertad de expresión, a raíz de la reprochable actuación de los funcionarios del Banco Nacional. En esta decisión consigné una nota, en la que expreso mi visión sobre una variedad de acciones de los poderes fácticos, en los que la competencia de la Sala y las previsiones del Pacto de San José, resultan insuficientes. Hay espacios en los que no impera el Derecho, es el reinado de los poderes salvajes, según la terminología de Nombre176. Qué maravilloso sería que el estado social, la independencia del poder judicial, los derechos sociales, tuvieran las garantías que contiene el Pacto de San José para la libertad de expresión. Sólo imagino cómo sería la Justicia social y la democracia, si eso fuera posible. Hay un sesgo de la Convención Americana hacia los derechos individuales, con previsiones demasiado abstractas respecto de los derechos sociales.

Empero, las normas del Pacto de San José sobre la libertad de expresión, son sabias y se adaptan a las transformaciones sociológicas y políticas, pero en otras áreas tan sensibles para la democracia y el estado social, impera la anomia y la “conveniencia política”. Creo que la nota que consigné en aquél voto, sobre un tema similar, todavía mantiene vigencia, todavía son pertinentes mis reflexiones sobre las limitaciones y debilidades de la juridicidad en nuestra democracia. Mi condición de juez no me convierte en un testigo de piedra sobre lo que estimo son las injusticias que flotan, muy claramente, en los casos que resolvemos. No me gusta esa indiferencia, no me gusta ese silencio. Los excesos desde el poder formal, requieren control y contrapeso; no tengo duda que también se requiere que los poderes fácticos, puedan ser más visibles ante la ciudadanía, comprendiendo que también ejercen un influjo que escapa a los controles sanos de una democracia plena.

Tanto que queda por hacer, en lo electoral, en la participación, en la vigencia del estado social, las garantías laborales, tan venidas a menos en los últimos quince años, tanto que una Convención Colectiva parece un lujo y privilegio de una minoría de trabajadores. Efectivamente, un caso como este, que apasiona y provoca controversia, resulta de menor rango al lado del deterioro de nuestro Estado del bienestar. La frustración de tantos ciudadanos no nos debe llevar a sobredimensionar este litigio, hay otros retos y temas, en que enfrentamos la parálisis, el deterioro y el silencio. El tema del tránsito de vehículos del parque Viva, tiene solución, pero no puedo decir lo mismo de los problemas que enfrenta la democracia y el Estado social en Costa Rica. Son asignaturas pendientes que tiene la sociedad costarricense y que trascienden lo que se discute en este amparo. Agrego, textualmente, la nota que consigné en el voto del Banco Nacional, cuya vigencia, como lo expresé, se mantiene:

“Nota del Magistrado Nombre91. La libertad de opinión y sus distorsiones.

El amparo planteado por el Diario La Nación denuncia una grave distorsión que sufrió la libertad de prensa y el acceso a la información. Sin embargo, el acontecimiento que sustenta el amparo suscita una serie de interrogantes sobre el papel de los medios, la amenaza que actúen como poderes fácticos y la grave distorsión para la libertad de información que significa, la concentración de los medios informativos. Muchas acciones que distorsionan el estado de la opinión pública y las reglas de la democracia, no son conocidas en la instancia constitucional. Es el mundo de los poderes salvajes y sus antivalores, que pervierten lo que debe ser una sociedad democrática. Es muy saludable para la democracia, que las actuaciones atribuidas a algunos de los jerarcas de un banco estatal, puedan ser evaluadas a la luz del poder constitucional y de los derechos fundamentales. Empero, existe una amenaza que no puedo desconocer, respecto de las acciones de los poderes fácticos y que distorsionan totalmente las libertades fundamentales que sustentan la democracia.

La tutela y control de la libertad de opinión se concentra en los poderes públicos, pero hay otros actores que están lejos de ser evaluados por las instancias de control constitucional. Escapan a estos controles los poderes fácticos, dentro de los que puede citarse, entre otros, la Iglesia, el Ejército, las instituciones financieras y los medios de comunicación. La influencia de estos poderes les permite alterar los acontecimientos sociales y políticos, influir sobre las decisiones del sistema institucional.

Hasta el momento, el concepto de poderes fácticos se ha utilizado para señalar a aquellos actores o grupos que bajo determinados mecanismos influyen en las decisiones públicas. Sin embargo, es un concepto polémico y no existe unidad sobre su contenido. Incluso hay una divergencia de posturas entre los académicos. Las diferencias no sólo oscilan entre la calidad de la democracia y el papel de estos poderes en ella, sino incluso en los propios grupos que ostentan este poder fáctico. De esta manera, se equiparan los medios de comunicación, los bancos y el crimen organizado, cuando hay una notable diferencia en sus acciones ante el Estado. Pero estas diferencias tan importantes, no impiden admitir que existen una serie de actores muy poderosos que no son visibles y que no se someten a ningún tipo de escrutinio.

La concentración de los medios agrava la distorsión que pueden tener los poderes fácticos sobre la calidad de la democracia y el régimen de opinión pública. En el caso denunciado por el diario la Nación, no hay duda que ha existido una grave distorsión y contaminación del régimen de opinión, pero subsisten otras acciones de diversos actores, especialmente los poderes fácticos, que sin ninguna supervisión o limitación, condicionan el proceso democrático y la determinación de lo que es importante para la democracia. Estos poderes pueden condicionar el ejercicio de la acción política, pueden neutralizarla o manipularla. Todas estas distorsiones que provocan los poderes fácticos, pervierten el régimen de opinión pública.

La instancia constitucional y la tutela de los derechos fundamentales, no alcanza a los poderes fácticos, son actuaciones que trascienden el marco de control y discusión que caracteriza el poder constitucional. Se trata de un poder con incidencia fuera del sistema formal. Tantas acciones en que se pueden realizar al margen de la transparencia, invisible para la vigencia de los derechos fundamentales. Factores reales de poder sin control y visibilidad que pueden colonizar e incidir en el funcionamiento de las instituciones o el estado de opinión en una consulta o en una elección.

El poder económico de los poderes fácticos supera el que tiene una institución pública en la distribución de los recursos públicos para publicidad. Un poder fáctico, si no se autocontiene, puede financiar determinados candidatos o agrupaciones, también puede condicionar la participación de empresas de publicidad o encuestadoras respecto a un candidato que estimen “inconveniente”, provocando que un aspirante a diputado o presidente, pierda durante la contienda electoral, a sus mejores cuadros en la orientación de su campaña de opinión o de imagen. Se trata de acciones que no quedan registradas, son los poderes salvajes actuando sin control, sin transparencia, condicionando el estado de la opinión pública respecto de una elección o una decisión de relevancia política. La mitad del escenario político está en la penumbra, sólo pueden ser sometidos a un saludable escrutinio los actos y decisiones de los órganos y poderes de derecho público.

En octubre de 2010 se presentó el Segundo informe sobre la democracia en América Latina, llevado a cabo por el Programa de las Naciones Unidas para el Desarrollo (PNUD) y en el que participó Nombre109. El informe menciona los poderes fácticos que pueden influir en buena lid o en la penumbra, a las instancias oficiales de poder.

En la encuesta incluida en el informe mencionado sobre quién ejerce el poder real en América Latina, los porcentajes de la respuestas fueron los siguientes: grupos económicos, empresarios y el sector financiero, 79.7%; medios de comunicación, 65.2%; iglesias, 43.8%, sindicatos, 31%, poderes ilegales: mafias, narcotráfico, guerrilla, paramilitares, 26%, organizaciones de la sociedad civil, 12.8%; y sector indígena, 3.2%. Sobre los poderes formales las respuestas fueron: Poder Ejecutivo, 36.4%; Poder Legislativo, 12.8%; y Poder Judicial, 8.5%. Esta muestra sobre los diversos poderes no formales, incluye, por supuesto, a los medios de comunicación. Presiones o represalias como las que hemos conocido en este asunto, pueden presentarse en el mundo de los poderes fácticos, incluidos los medios de prensa, sin que se visibilicen o se puedan denunciar. Es oportuno en materia tan delicada, abandonar las visiones ingenuas o reduccionistas.

Esta es una reflexión que planteo a propósito de un caso relevante en el que se realiza una presión impropia contra un medio de prensa, empero en el mundo de los poderes salvajes, como lo denomina Nombre176, estas acciones se ejecutan en la penumbra y sin control constitucional. Son acciones contra los principios y las reglas de juego en una democracia, tal como ocurrió en este caso. El corolario saludable de este caso es que respecto de la libertad de opinión y de pensamiento, no pueden existir presiones o manipulaciones impropias. En la historia costarricense, el proceder del Diario La Nación siempre ha sido intachable, realmente ha dado en nuestra historia, lecciones de ética periodística, empero no puedo desconocer que en la opacidad de diversos actores que ejercen el poder fáctico, se ejecutan acciones más graves y reprochables que las que se atribuye a los jerarcas del Banco Nacional. Se trata de una cultura de los poderes desnudos, sin ideario ético, pues sólo interesa lograr una influencia impropia sobre los intereses de la democracia y la voluntad ciudadana.

No hay duda que los actores que ostentan y ejercen, de hecho, un gran poder, que incurren en actividades de presión, distorsión o manipulación, no pueden someter y violentar las reglas de un Estado de derecho. En ese mundo de presiones, condicionamientos, en esa cultura de los poderes salvajes, la instancia constitucional no puede hacer nada, de esta forma las acciones más graves en contra del régimen de opinión y de la democracia, quedan ocultas; se trata de un poder ilegítimo que se mantiene sumergido.

En el tema de la libertad de información y el derecho a la información, surgen amenazas que pueden tener relación con la actuación e incidencia de los poderes fácticos, como es la concentración económica y el control político de los medios de comunicación. Es decir, la acción de los poderes económicos fácticos puede condicionar la actividad de los medios sociales de opinión, es otra perspectiva de este fenómeno de variadas aristas. La concentración de medios provoca otra gravísima distorsión de la libertad de pensamiento y de opinión, enajenando estos valores constitucionales tan relevantes; el acceso a información y la libertad de opinión puede tener en la concentración de medios, una distorsión estructural.

Hay que reconocer que la propiedad de los medios de información es un poder, es una fuente de poder que debe propiciar pluralismo y convivencia democrática, pero se deben someter a reglas que derivan de la esencia del Estado de Derecho, impidiendo que el poder mediático se convierta en un poder absolutista. Se requiere que se someta a la ley, definiendo límites y vínculos para asegurar que la libertad de información y el derecho a la información fluya sin distorsiones. La segunda regla es la separación de poderes, aplicando la vieja regla de Nombre177, del que no puede exceptuarse el cuarto poder, pues para que lo sea en un régimen democrático, debe responder a garantías que lo independicen del poder político y económico. Esta valoración requiere una profunda y equilibrada reflexión, la independencia de los medios de comunicación exige: independencia de los centros de poder económico y de los partidos políticos.

En caso que existieran vínculos, que tales nexos sean tan transparentes como la información pública. Estas reglas y otras que propone Nombre110 fortalecería la función de los medios de comunicación, para que respondan a un estado de opinión que derive del pluralismo y la auténtica participación ciudadana. Nombre176, en un artículo publicado en el 2004, titulado: “Libertad de información y propiedad privada: una propuesta no utópica”, propone diversas medidas para que el poder de los medios no se ejerza en la penumbra de los poderes fácticos, sino que responda a estos lineamientos: “….Garantizar la separación entre la administración de la información y la propiedad; instituir autoridades de garantía orientadas a la tutela de la libertad de prensa y de información; impedir toda clase de concentración de la propiedad; excluir los controles patronales o políticos; lograr que todos puedan acceder a los medios; favorecer con financiamientos adecuados a las televisiones no comerciales creando, además, infraestructuras comunes; afirmar el carácter objetivamente “público” de la televisión y ampliar el espacio de la televisión pública son solamente algunas de las reformas posibles para enfrentar el peligro inminente del “gran hermano”…” ( consultar: http://www.nexos.com.mx/ p=11115 ) En la evaluación de la concentración de medios de comunicación, tiene especial relevancia una política que fortalezca la función de la televisión en una sociedad democrática.

Tantos atentados contra la libertad de información y de opinión que son imperceptibles, no sólo por la invisibilización cultural, sino por la impunidad de un sistema en los que hay poderes que actúan sin controles y en la opacidad. Queda mucho por hacer en la construcción y fortalecimiento de la democracia y de la dignidad del ciudadano….”

XII.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 número 27-11 del 22 de agosto de 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero de 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión número 43-12 celebrada el 3 de mayo de 2012, artículo LXXXI.

POR TANTO:

Por mayoría se declara con lugar el recurso en todos sus extremos y, en consecuencia, se anula la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 emitida el 8 de julio de 2022, así como lo dispuesto en el oficio No. MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022. Se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de fundamento a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. El magistrado Nombre91 consigna nota. El magistrado Nombre111 consigna razones adicionales y agrega que, al haberse declarado con lugar el recurso de amparo que anula la citada orden sanitaria, las autoridades recurridas deberán, dentro del plazo de dieciocho meses posteriores a la notificación de la presente resolución, llevar a cabo todas aquellas medidas de coordinación que estimen pertinentes y necesarias a efectos de ejecutar el plan remedial al que se ha hecho referencia en este asunto; o, cualquier otro que estimen a bien, con el propósito de brindar una solución integral a la problemática de congestionamiento vial que afecta a los vecinos de La Guácima de Alajuela, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva; y que, ante una eventual emergencia, podrían verse comprometidas la salud o la integridad física de las personas.

La magistrada Nombre112 salva parcialmente el voto en el siguiente sentido: lo declara con lugar, por sus propias razones, respecto de la libertad de expresión; y lo declara sin lugar respecto de la anulación de la orden sanitaria y del citado oficio, por cuanto estima que lo relativo a estos no procede ser conocido en esta jurisdicción. Comuníquese y notifíquese.-.

Nombre113.

Nombre138 Nombre114. Nombre115.

Nombre116. Nombre117.

Nombre118. Nombre119.

Razones adicionales del magistrado Nombre111.

Concurro con el voto de mayoría, que declara con lugar el recurso y anula la orden sanitaria que se cita, al haberse demostrado, con toda claridad, que el cierre de Parque Viva fue un acto arbitrario, como represalia por la línea editorial que ha sostenido el Diario La Nación, respecto al Nombre138 Nombre01, y con el objetivo de silenciar a dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa, protegidas constitucional y convencionalmente.

No obstante, en vista de la anulación de la orden sanitaria N° MS-DRRSCN-DARSA2-OS-0368-2022, emitida el 8 de julio de 2022, así como lo dispuesto en el oficio N° MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022, estimo necesario que las autoridades recurridas (en conjunto con la Municipalidad de Alajuela, y cualquier otra institución pública competente), brinden una tutela efectiva a los derechos fundamentales de los vecinos de La Guácima de Alajuela.

Para ello, considero pertinente y oportuno, que este Tribunal Constitucional ordene, dentro del plazo de dieciocho meses posteriores a la notificación de la presente resolución, que se lleven a cabo todas aquellas medidas de coordinación que estimen pertinentes y necesarias a efectos de ejecutar el plan remedial al que reiteradamente se ha hecho referencia en este asunto; o, cualquier otro que estimen a bien, con el propósito de brindar una solución integral a la problemática de congestionamiento vial que afecta a los vecinos de La Guácima de Alajuela, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva; y que, ante una eventual emergencia, podrían verse comprometidas la salud o la integridad física de las personas.

En el caso que nos ocupa, debe tenerse presente que esta Sala ha tutelado el derecho de los administrados a disfrutar de un espacio público físico que reúna las condiciones necesarias de accesibilidad, que permitan una adecuada movilidad, y garanticen la integridad física, la salud y la vida de las personas.

En la Sentencia N° 2014-013854 las 9:05 horas del 22 de agosto de 2014, se desarrolló lo que en doctrina se conoce como el “Derecho a la Ciudad”, que comprende lo siguiente:

“(…) En la "Carta Mundial por el Derecho a la Ciudad”, se reconocieron -entre otros- el derecho a la accesibilidad a los servicios de transporte público y al espacio público físico -lo que involucran tanto la movilización de los usuarios de un lugar a otro de la ciudad, y la posibilidad de contar con buenas aceras, zonas peatonales, etc.- y a la inclusión, que como este Tribunal ha sostenido implica la remoción de todas las barreras arquitectónicas que impidan la movilidad por propios medios así como la instalación de las ayudas necesarias para garantizar la accesibilidad de personas con discapacidad, niños, adultos mayores, etc. Por su parte, la "Convención sobre los Derechos de las Personas con Discapacidad", consagra el derecho de todos a ingresar, transitar y permanecer en un lugar, de manera segura, confortable y autónoma (…)”. (Criterio reiterado en la Sentencia N° 2015-04827 de las 9:40 horas del 10 de abril de 2015, y la Sentencia Nº 2016-009051 de las 9:05 horas del 1 de julio de 2016, entre otras resoluciones del Tribunal Constitucional).

En consecuencia, si un grupo de ciudadanos, en su circunscripción territorial, sufren problemas por obstaculización de vías públicas, con afectación de su calidad de vida y bienestar general, esto se enmarca dentro del concepto de intereses y servicios locales del numeral 169, de la Constitución Política, problemas cuyas causas tienen que ser identificadas con precisión y, más aún, las soluciones, a fin de implementarlas a la brevedad posible; para lo cual corresponde a las autoridades recurridas coordinar con las instituciones de nivel nacional con competencia para actuar sobre el problema. En efecto, la Sala ha desarrollado la obligación municipal de coordinar con otras instituciones estatales en aras de atender los intereses y prestar cumplidamente los servicios locales. En la Sentencia N° 1999-5445 de las 14:30 horas del 14 de julio de 1999, se manifestó lo siguiente:

“(...) se refieren a la obligación de coordinación que debe existir entre los gobiernos locales, las instituciones descentralizadas y el Poder Ejecutivo, para llevar a cabo las funciones que le han sido encomendadas, lo que debe ser analizado a partir de la naturaleza misma de la autonomía municipal. Es en virtud de lo dispuesto en el artículo 170 constitucional, que las municipalidades (entes corporativos locales) gozan de autonomía funcional, administrativa y financiera en la administración de los intereses y servicios locales (artículo 169 de la Constitución Política) (...)”.

Por otra parte, en este asunto es de relevancia tener presente el contenido del informe técnico N° CRC-GG-OF-012-2022, del 12 de julio de 2022, suscrito por el Gerente General de la Asociación Cruz Roja Costarricense, mediante el cual se reconocen las dificultades que enfrentan los vehículos de emergencias en las vías públicas de la zona al atender incidentes, situación que se agrava cuando se realizan eventos masivos en el Parque Viva. En dicho documento se le informó a la Ministra de Salud lo siguiente:“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias.

Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos. En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1.

Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Nombre140 de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades. En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Nombre140 para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes.

Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorrespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos. Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Cabe destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.

Ante el escenario descrito, y por las razones expuestas, reitero que, con el fin de evitar una omisión a la tutela efectiva de la integridad física, la salud y la vida de los vecinos de La Guácima, así como de cualquier otro ciudadano, estimo necesario implementar el plan remedial de reiterada cita en este asunto; o, cualquier otra medida que las autoridades estimen necesaria, para solventar la problemática de congestionamiento vial que afecta dicha zona, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva.

Nombre120. Nombre111 RAZONES DIFERENTES Y VOTO SALVADO PARCIAL DE LA MAGISTRADA Nombre112 respecto de la sentencia 2022-25167 (Parque Viva) ÍNDICE Contenido

I. Consideraciones preliminares

II. Resumen ejecutivo

III. Breve análisis de los elementos procesales del presente asunto

A. Tipo de proceso B. Partes 1. Recurrentes 2. Recurridos C. Objeto impugnado D. Objeto protegido E. Admisibilidad y legitimación F. Pretensiones G. Marco fáctico

IV. Voto salvado parcial

A. Fase de admisibilidad: los presupuestos procesales 1. Aspectos formales del escrito de interposición 2. La competencia del órgano a) El objeto protegido: los derechos fundamentales b) El objeto impugnado: la conducta presuntamente lesiva c) El carácter de la lesión d) La naturaleza del proceso 3. La capacidad y la legitimación de las partes B. Fase de conocimiento: aspectos por considerar y reconsiderar 1. Generalidades 2. Verificación definitiva de algunos presupuestos procesales a) El objeto impugnado: la orden sanitaria y el oficio conexo (1) La orden y el oficio conexo (2) La no idoneidad del amparo: jurisprudencia constitucional (a) Jurisprudencia en tiempos normales (b) Jurisprudencia durante la pandemia (c) El caso de Nombre107 (3) La idoneidad de la vía contencioso-administrativa (a) Previsión constitucional de control de la Administración (b) Alcance del análisis en la vía ordinaria (c) Ventajas de la vía ordinaria b) Legitimación (1) Marco del problema (2) Sobre el alegato que solo tendrían legitimación ante la Sala (3) Alegatos de los recurrentes sobre la causa de la legitimación (4) Consideraciones de la sentencia sobre la dependencia (5) Los estados financieros y la dependencia aludida

V. Razones diferentes

A. Introducción B. Posibilidad de conocer de la lesión invocada C. Inexistencia de la violación del artículo 13.3 de la CADH 1. Brevísimo análisis exegético del artículo 13.3 de la CADH 2. Consecuencia sustantiva de la no acreditación de la dependencia 3. Inexistencia de la violación, aunque hubiese legitimación a) Sobre la afectación a la libertad de expresión b) Sobre la arbitrariedad de los actos (1) Si los actos no son arbitrarios: consecuencias (2) Si los actos son arbitrarios: consecuencias D. Consideraciones sobre la jurisprudencia invocada en el expediente 1. La jurisprudencia de la Corte IDH 2. La jurisprudencia de la Sala Constitucional E. Reflexiones adicionales sobre la inexistencia de la violación F. Motivos para acoger el recurso respecto de la libertad de expresión 1. Marco normativo y jurisprudencial 2. Marco fáctico 3. Consideraciones sobre las manifestaciones 4. Conclusión

VI. Reflexiones sobre el expediente y la sentencia

A. El dilema: “ordinariar” el amparo o respetar su carácter sumario 1. Sobre los aspectos probatorios 2. Sobre las partes allegadas al proceso B. Las consecuencias de la anulación de los actos impugnados C. Sobre el alcance de la condenatoria en daños y perjuicios

VII. Conclusión

Consideraciones preliminares Con el respeto acostumbrado a los demás integrantes de la Sala Constitucional y a las partes de este proceso, me propongo poner de manifiesto mis razones diferentes para declararlo con lugar –respecto de la violación de la libertad de expresión– y los argumentos de mi voto salvado parcial por el que lo declaro sin lugar –respecto de la anulación de la orden sanitaria y el oficio conexo impugnados que dictó el Ministerio de Salud–.

De previo, haré una brevísima descripción de la litis. Luego explicaré mi posición. Sin embargo, para facilitar su comprensión, desarrollaré primero mi voto salvado parcial y luego mis razones diferentes. Por último, haré unas reflexiones sobre el expediente y la sentencia misma que confirman lo dicho en el voto salvado.

Muy a mi pesar este texto es extenso, pero está diseñado para que pueda ser leído, al menos, en tres niveles de profundidad. El primero, superficial: para eso bastará leer el índice, el resumen ejecutivo y algunos pasajes subrayados que aparecen en diversas páginas. El segundo, un poco más detenido, que supone leer todo el texto de corrido y seguramente saltando las abundantes transcripciones de la jurisprudencia. Finalmente, uno más exhaustivo, que exige leerlo todo, incluyendo las notas a pie de página.

He debido explayarme en algún tema por su importancia o por exigencias de la finalidad pretendida. Explico esto último: no es lo mismo contradecir lo que se afirma en la sentencia que argumentar que algo no se dijo en ella. Ese es el motivo por el cual, por ejemplo, lo relativo al examen de la legitimación en la fase de conocimiento del recurso es tan largo, pues era pertinente transcribir y glosar pasajes de los escritos de los recurrentes y de la sentencia.

Resumen ejecutivo Se pretende condensar aquí las ideas principales sobre lo siguiente: el voto salvado respecto la anulación de los actos impugnados, las razones diferentes por las que declaro con lugar el recurso en lo atinente a la lesión de la libertad de expresión y las reflexiones sobre la sentencia.

El caso Unos periodistas del periódico La Nación impugnan una orden sanitaria y un oficio conexo dictados sobre el Parque Viva, que pertenece al Grupo Nación S. A. (en adelante, Grupo Nación), que es propietaria del periódico. Aducen que su libertad de expresión ha sido lesionada en virtud de tales actos.

Posición de la mayoría de la Sala Declara con lugar el recurso de amparo en todos sus extremos, anulando los actos administrativos impugnados, pues estima que son arbitrarios y manifestaciones de abuso de poder y, a tenor del artículo 13.3 de la Convención Americana sobre Derechos Humanos (CADH), fueron unos medios indirectos para lesionar la libertad de expresión de los recurrentes.

Mi posición Voto salvado parcial. Declaro sin lugar el recurso respecto de la anulación de los actos impugnados, pues estimo que corresponde que sean conocidos en la vía ordinaria de la legalidad y no en un recurso de amparo. Lo anterior con fundamento en los siguientes argumentos.

Todo recurso de amparo es analizado por la Sala Constitucional en dos fases:

Fase de admisibilidad. En esta se examina si prima facie el recurso cumple con los presupuestos procesales: 1) los aspectos formales; 2) la competencia del órgano, que está determinado por el objeto que se pretende proteger (los derechos y libertades fundamentales que se alegan violados), el objeto impugnado (las conductas que se acusan de arbitrarias), el carácter de la lesión (si es directa o indirecta), y el respeto por la naturaleza del proceso (que es sumario); 3) la capacidad y la legitimación de las partes.

En el presente caso, podría haber duda sobre un aspecto que determina la competencia del órgano, esto es, si el objeto impugnado es susceptible de ser conocido en un proceso sumario. La interrogante surge porque habitualmente la Sala –por diversos motivos debidamente justificados– no ha conocido de órdenes sanitarias y porque la que aquí se impugna versa sobre aspectos técnicos particularmente complejos. Esto hace pensar que el recurso de amparo no es la vía idónea para que la Sala se pronuncie sobre la alegada arbitrariedad de esos actos administrativos. También surge la duda sobre si los recurrentes tienen legitimación, pues aducen la lesión a la libertad de expresión de ellos, pero los actos administrativos impugnados recaen sobre un inmueble que es propiedad del grupo empresarial al que pertenece el periódico en el que laboran. Sin embargo, como se alega que tales actos son medios indirectos para lesionar la libertad de expresión, que el artículo 13.3 CADH proscribe, pese a las dudas, podría parecer razonable que la presidencia de la Sala haya admitido el recurso para que fuera conocido por el fondo.

Fase de conocimiento: En esta, una vez recabados todos los informes de la parte recurrida y cualquier otro material que se haya allegado al expediente, la Sala realiza un segundo análisis en dos direcciones: verifica de manera definitiva si en efecto se cumplen con los presupuestos procesales y, solo después de constatarlo, analiza por el fondo el asunto.

Respecto de lo primero, en el presente caso, a mi juicio, corresponde examinar los dos puntos sobre los que surgen dudas razonables: si el objeto impugnado puede conocerse en proceso sumario y si hay legitimación de los recurrentes.

Luego del estudio del marco fáctico, de la constatación del acervo probatorio (numeroso, voluminoso, proveniente de múltiples autoridades involucradas y que en su mayoría versa sobre aspectos técnicos y particularmente complejos), de las normas y de la jurisprudencia aplicable (dictada antes y durante la pandemia) concluyo que el objeto impugnado no correspondía ser examinado en un proceso sumario como es el recurso de amparo. En esa línea, explico los motivos por los que la vía contencioso-administrativa es la sede llamada a examinar el reproche de los recurrentes, no solo por expresa previsión constitucional, sino porque ofrece muchas más ventajas para el examen riguroso de la cuestión y la posibilidad de dictar medidas cautelares e, incluso, solicitar un trámite preferente. También, después de examinar el marco fáctico y constatar la ausencia de pruebas que sustenten una vinculación entre lo pretendido y lo impugnado, advierto que los recurrentes no tienen legitimación. Además, desvirtúo el alegato que ellos presentan, en el sentido de que no tenían legitimación para acudir a la vía contencioso-administrativa para impugnar los actos administrativos cuestionados y para aducir allí la lesión a la libertad de expresión.

En consecuencia, al no cumplirse con dos presupuestos procesales insoslayables (competencia y legitimación), estimo que corresponde declarar sin lugar el recurso respecto de la anulación de la orden sanitaria y el oficio conexo. Es decir, no me pronuncio sobre estos, sino que señalo que el examen sobre su presunta arbitrariedad corresponde ser realizada en la vía contencioso-administrativa.

Razones diferentes para declarar con lugar el recurso respecto de la lesión a la libertad de expresión.

De previo a justificar mi estimatoria parcial del recurso, explico que –pese a que los actos impugnados no puedan ser conocidos en este recurso–, en virtud del principio iura novit curia sí cabe hacerlo respecto de otros actos que se reflejan en el marco fáctico. Además, como lo que se advierte del análisis de esto son unas lesiones por vías directas a la libertad de expresión, los recurrentes sí tendrían legitimación para ser parte de este proceso.

En primer término, expongo los motivos por los cuales estimo que no se configuró una violación al artículo 13.3 CADH. Analizo la jurisprudencia referida en la sentencia, tanto de la Corte IDH como de la Sala Constitucional, y muestro que más bien confirma mi tesis. Después me refiero a unos escenarios que no se dieron en el presente caso, pero cuyo estudio permite hacer unas reflexiones sobre el tema en discusión. Ahí pongo de relieve que todo apunta a que no hubiese bastado con probar la dependencia económica del periódico La Nación respecto del Parque Viva para declarar la lesión de la libertad de expresión.

Finalmente, luego del examen de las pruebas allegadas y de los hechos públicos y notorios, y en virtud de las normas y jurisprudencia aplicables, constato y declaro la violación a la libertad de expresión, por parte del señor Nombre138 Nombre01, debido a unas manifestaciones que constituyeron una censura directa, expresa, aunque relativa, sobre los sujetos (los recurrentes) y el contenido (lo comunicado).

Consideraciones finales sobre el expediente y la sentencia. Estas permiten confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso en el que se debió conocer sobre ese objeto impugnado. En concreto, me refiero al dilema que se presenta entre “ordinariar” un recurso de amparo o resolverlo sin tener todos los elementos suficientes (prueba y partes) y a las implicaciones de haberse decantado por la segunda opción. También aludo a las consecuencias de la anulación de los actos impugnados y su posible impacto en temas de salud y seguridad públicas. Finalmente, hago unos comentarios sobre el alcance de la condenatoria en daños y perjuicios ?cuya ejecución solo puede ser solicitada por los recurrentes y circunscrita a la lesión de la libertad de expresión declarada, no al grupo empresarial propietario del medio en el que laboran?. No obstante, esta sentencia da la posibilidad a este de interponer un proceso de conocimiento por responsabilidad del Estado, en el que, partiendo de la declaración de nulidad de esos actos realizada en un proceso sumario, solo tienen que mostrar el nexo causal entre tales actos y los daños y perjuicios que aleguen.

Breve análisis de los elementos procesales del presente asunto Tipo de proceso El presente es un recurso de amparo, que es uno de los procesos que la Sala Constitucional conoce, establecido en los artículos 48 de la Constitución Política y 29 de la Ley de la Jurisdicción Constitucional (LJC).

Partes Recurrentes Los recurrentes son: Nombre01, Nombre121 Nombre122, Nombre04, Nombre05, Nombre06, Nombre07, Nombre08, Nombre09, Nombre123, Nombre124, Nombre12, Nombre13 y Nombre14. Todos, según se afirma, periodistas y miembros de la redacción del periódico La Nación.

Recurridos Los recurridos son: Nombre15, en su condición depresidente Nombre01 Nombre125,en su condición de ministra de Salud.

Objeto impugnado A tenor del escrito de interposición, el objeto impugnado es la orden sanitariaMS-DRRSCN-DARSA2-OS-0368-2022 y,por conexidad,el oficio MS-DRRSCN-DARSA2-1724-2022. Esto se deriva claramente de la petitoria en la que solicitan que “se declare con lugar el presente recurso de amparo, se anule la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva y los actos administrativos que la ordenan”.

Objeto protegido Los recurrentes afirman lo siguiente:

“Las actuaciones arbitrarias (…) constituyen una grosera desviación de poder para vulnerar nuestro derecho a la libre expresión y el derecho de los costarricenses a recibir informaciones y opiniones sobre asuntos de interés público de conformidad con el artículo 29 de la Constitución Política y el artículo 13.3 de la Constitución Americana sobre Derechos Humanos” (escrito de interposición, p. 1).

Es decir, estiman que las actuaciones de parte de los recurridos lesionan la libertad de expresión por vías indirectas.

También aducen que esas mismas actuaciones violan el principio de legalidad y el principio de igualdad, establecidos respectivamente en los artículos 11 y 33 de la Constitución Política.

Admisibilidad y legitimación Los recurrentes estiman que el recurso debe admitirse porque los actos administrativos lesionan los derechos y principios mencionados. Es decir, consideran que el acto es arbitrario, por infracción del principio de legalidad y del principio de igualdad, y constituye una violación a la libertad de expresión de los propios recurrentes y del derecho a la información de los costarricenses. Al respecto señalan:

“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid.).

Después afirman:

“La ilicitud de las presiones indirectas sobre los periodistas ha sido objeto de la jurisprudencia de la Corte Interamericana de Derechos Humanos” (ibid.).

Y luego citan varios casos resueltos por la Corte Interamericana de Derechos Humanos (Corte IDH) e inmediatamente dicen:

“En este contexto, el recurso que presentamos es admisible y en consecuencia solicitamos que la Sala le dé el curso correspondiente. Efectivamente, lo actuado por los funcionarios recurridos (…) configura un supuesto evidente de desviación de poder (…). La particularidad y el carácter especial y extraordinario del caso es que no se trata de un asunto de mera legalidad o de legalidad ordinaria, es decir, de mera infracción legal, susceptible en consecuencia de ser conocido en la jurisdicción ordinaria correspondiente, sino que la desviación de poder en este caso concreto es el instrumento ideado para vulnerar nuestros derechos y libertades fundamentales de modo directo e inmediato, y capaz de pribid., p. 2).

Es decir, entiend En ese sentido, indican lo siguiente:

“Si se considera erróneamente ese caso como un tema quibid.).

Esto es, reiteran que no se trata de un asunto de legalidad, y aducen otro argumento: si se les rechazara este recurso de amparo, se les lesionaría el derecho a la tutela judicial.

Además, para mostrar la vinculación entre los actos impugnados y las presuntas lesiones a la libertad de expresión, en primer término, aducen lo [1][2][3] “No puede ser más evide[4][5][6]ibid., p. 4).

Luego explican los temas que, a juicio de los recurrentes, disgustaron al aquí recurrido y afirman lo que es medular para este asunto:

“En todos los casos, se trataba de publicaciones periodísticas serias, bien documentadas y totalmente pertinentes. No publicarlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público y, en el momento específico, el principio del votante informado. Como consecuencia del cumplimiento de ese deber y el ejercicio de ese derecho, a los directores y a nuestros colaboradores periodísticos se nos advirtió de la destrucción de las estructuras que nos permiten ejercer el periodismo independiente.

Parque Viva es una de esas estructuras, en el caso de Grupo Nación. Fue creado, precisamente, para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de ingresos experimentada por los medios de comunicación en todo el mundo debido a la migración de la publicidad hacia los gigantes de la Internet, como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: ?…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela'” (ibid., p. 4; el destacado no es del original).

De ese modo, explican el ligamen entre el Parque Viva y el periódico La Nación, señalando que aquel es fuente de ingresos para este. A partir de esto alegan que la orden sanitaria, al impedir el funcionamiento del Parque Viva, deja sin soporte financiero al periódico, por lo que estiman que ese acto causa una lesión a la libertad de expresión.

Es decir, entienden que la orden sanitaria debe clasificarse dentro de “cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones” (artículo 13.3 CADH), pues tuvo como finalidad última lesionar la libertad de expresión, en el contexto de amenazas propinadas por el señor Nombre51, primero durante la campaña electoral, luego como Nombre138 electo, y también en el ejercicio del cargo.

Pretensiones Los recurrentes en su petitoria se refieren a tres aspectos: Por un lado, como se ha dicho, solicitan la anulación de la orden sanitaria. Por otro, piden que la Sala “le ordene al Nombre138 Nombre01 y la Ministra de Salud abstenerse de ejecutar actos tendientes a lesionar directa o indirectamente la libertad de expresión de que gozamos los recurrentes, como todo ciudadano costarricense”. Y, finalmente, indicaron: “Renunciamos expresamente a pedir condenatoria en daños, perjuicios y costas”.

Marco fáctico Sin pretender sustituir el elenco de los hechos que están en consignados en la sentencia, es oportuno hacer sucintamente una relación del marco fáctico de la litis, con el fin de ofrecer el contexto que facilite la debida comprensión del voto salvado parcial y de las razones diferentes.

Muchos son hechos públicos y notorios y todos tienen respaldo documental en el expediente.

1-. El Grupo Nación tiene dos unidades de negocio de relevancia para el análisis del caso concreto. El periódico La Nación, obviamente relacionada con el ejercicio periodístico, y el Parque Viva, dedicada a la realización de actividades de entretenimiento. Este recinto, ubicado en La Guácima de Alajuela, contaba con permisos sanitarios para la realización de eventos.

1. 2El 29 de enero de 2022, durante la campaña electoral presidencial, el actual Nombre138 Nombre01 hizo manifestaciones en los siguientes términos:

“Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Nombre16, óigame el otro (...) Nombre17, ói

1. 3Los recurrentes de este proceso son periodistas de La Nación.
2. 4Denuncia: En el contexto de la realización de los eventos masivos organizados en el Parque Viva se habían generado noticias sobre el colapso vial en la zona. Además, el día 5 de julio de 2022 se presentó una denuncia anónima ante las autoridades del Ministerio de Salud, en la que se alegaba la existencia de peligros derivados de ese colapso, particularmente, las dificultades de los cuerpos de socorro pa[7]Informes preliminares: Se requirió un criterio técnico a los jerarcas del MOPT sobre el particular, se hizo una inspección físico sanitaria en el Parque Viva, elaboración de informes técnicos, y una reunión del Comité Asesor Técnico de Concentraciones Masivas ?integrado por la ministra de Salud en calidad de coordinadora, el ministro de Obras Públicas y Transportes, y por funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud?.
3. 5El 6 de julio de 2022, en conferencia de prensa, se le consultó al Nombre138 Nombre01 su criterio sobre el tema de la CCSS y la solicitud que se hizo a la Superintendencia General de Valores (Sugeval) respecto a los bonos emitidos por Grupo Nación. Al contestar, dijo que existía un tema muy serio con esos bonos que gobiernos anteriores habían comprado. Indicó que estaba preocupado por la capacidad de pago que tendría ese grupo, debido a los resultados contables y a la desviación de activos que, a su juicio, debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos.
4. 6El 7 de julio de 2022, el director ejecutivo de Grupo Nación dio amplias explicaciones públicas y mencionó el papel de Parque Viva en el flujo de la caja del Grupo Nación.
5. 7Orden sanitaria. Las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud emitieron la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022 ?notificada ese mismo día? en la cual se dispuso lo siguiente:

“En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud.

Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades”.

1. 8Oficio conexo. Después de recabar los criterios técnicos del director del Cuerpo de Nombre140 y de la presidenta de la Cruz Roja Costarricense, se dictó el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, mediante el cual el director del Área Rectora de Salud Alajuela 2 le indicó al representante legal del Parque Viva que, como seguimiento a lo dispuesto en la orden sanitaria, se remitían los informes técnicos CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el DM-2022-3121 del Ministerio de Obras Públicas y Transportes (MOPT). Adicionalmente, se resolvió lo siguiente:

“Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022”.

1. 9El 13 de julio de 2022, en conferencia de prensa, el mandatario se refirió a la reacción Nombre03 y el periódico La Nación sobre el cierre del Parque Viva.

10. El 20 de julio de 2022, en conferencia de prensa, el señor Nombre138 señaló, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva.

IV. Voto salvado parcial

Salvé el voto parcialmente porque estimo que la Sala Constitucional no debió pronunciarse sobre los actos administrativos impugnados (la orden sanitaria y el oficio conexo), debido a que el caso bajo estudio no cumple con los presupuestos procesales que en todo recurso de amparo deben acreditarse ante este órgano jurisdiccional.

Para desarrollar mis argumentos haré una referencia a las fases procesales de todo recurso de amparo que es resuelto por el fondo.

Fase de admisibilidad: los presupuestos procesales Para que un recurso de amparo supere la fase de admisibilidad, la Sala Constitucional debe verificar tres elementos: los requisitos formales de la demanda, su competencia para conocer del asunto y la legitimación de las partes.

Aspectos formales del escrito de interposición Corresponde, en primer término, constatar si el escrito reúne unas mínimas condiciones. Como el recurso de amparo es un proceso informal, estas son muy pocas: nombres de los recurrentes y recurridos, los hechos, el objeto impugnado (qué acto, omisión o vía de hecho se ataca), el objeto protegido (los derechos fundamentales o libertades públicas presuntamente conculcados, que sería aquello que la Sala protegería), las pruebas y la pretensión. En realidad, lo indispensable es la determinación de quién es la parte recurrente, relatar los hechos y aportar un mínimo de sustento probatorio. Lo demás, el tribunal lo puede deducir o, si tiene dudas, puede dictar una prevención (un acto en el que ordena que le aclare lo que estime necesario) de conformidad con el artículo 42 de la LJC.

La competencia del órgano Luego la Sala debe verificar si es competente para conocer del asunto. La competencia está condicionada por varios elementos: el objeto impugnado, el objeto protegido, el carácter de la lesión y la naturaleza del proceso.

• a)El objeto protegido: los derechos fundamentales En primer lugar, constatará que el objeto protegido, esto es, los derechos que se alegan violados son aquellos que de los que habla el artículo 48 de la Constitución Política y el artículo 2 de la LJC. Como se vio en el epígrafe anterior, los recurrentes alegan la violación a la libertad de expresión y a la igualdad.
• b)El objeto impugnado: la conducta presuntamente lesiva Además, en el caso de un recurso contra servidores públicos, como es el que aquí se examina, la Sala deberá constatar si la conducta que se atribuye a la parte recurrida está dentro de lo establecido en el artículo 29 de la LJC, que establece:

Artículo 29. El recurso de amparo garantiza los derechos y libertades fundamentales a que se refiere esta ley, salvo los protegidos por el de hábeas corpus.

Procede el recurso contra toda disposición, acuerdo o resolución y, en general, contra toda acción, omisión o simple actuación material no fundada en un acto administrativo eficaz, de los servidores y órganos públicos, que haya violado, viole o amenace violar cualquiera de aquellos derechos.

El amparo procederá no sólo contra los actos arbitrarios, sino también contra las actuaciones u omisiones fundadas en normas e En el presente caso, prima facie, la Sala es competente para conocer de la orden sanitaria y el oficio conexo que los recurrentes piden anular, pues son unas disposiciones de servidores públicos y se aduce que ha violado derechos y libertades fundamentales que se garantizan mediante el recurso de amparo. No obstante, como luego se verá con detalle, la Sala en la gran mayoría de los casos suele rechazar ad portas recursos de amparo contra órdenes sanitarias, alegando que su conocimiento [8] c) El carácter de la lesión Según una sólida y reiterada jurisprudencia, otra de las condiciones para admitir un recurso de amparo es que se alegue una lesión directa al derecho fundamental o a la libertad pública presuntamente conculcado.

Desde el primer momento de su historia, esa Sala señaló:

“En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derecho[9][10][11] Merece ser citada otra sentencia que, además de recoger ese precedente de 1990, señala:

“Se impone advertirle que la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de ésta— a uno o más de los derechos o garantías contemplados en la Carta Política o los de carácter fundamental establecidos en los instrumentos internacionales de derechos humanos suscritos y debidamente incorporados al ordenamiento jurídico, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo (…). Por esas razones, el recurso de amparo no puede ser empleado para controlar la legalidad de los actos de las distintas Administraciones Públicas, siendo que el amparo es un proceso sumario de tramitación sencilla y rápida, incompatible con la realización de debates extensos y técnicamente complejos” (sentencia 2020-12053; el destacado no es del original).

Nótese que la Sala señala que el recurso de amparo es idóneo solo para conocer lesiones directas, no las indirectas, debido al carácter sumario de ese proceso. Justamente por eso interesa detenerse a analizar la d) La naturaleza del proceso La competencia del órgano también está determinada por el respeto de la naturaleza del proceso.

No todo acto u omisión o vía de hecho, que provengan de una autoridad, aunque sean de suyo impugnable, es susceptible de ser conocido en un proceso sumario e informal. Las razones pueden ser diversas: la complejidad jurídica o técnica del acto, la necesidad de contar con un amplio acervo probatorio para determinar su validez y eficacia, etc. Sobre esto hay jurisprude[12] Igualmente, el tribunal debe constatar si el objeto protegido (los derechos fundamentales presuntamente conculcados) puede ser efectivamente garantizado mediante un recurso de amparo, que es un proceso sumario e informal. Al respecto hay una reiteradísima jurisprudencia sobre el particular, que la Sala también recoge de modo habitual.

Justamente en este sentido, suscribí con la magistrada Nombre126 una nota que reiteramos en muchas ocasiones:

“IV.- NOTA DE LAS MAGISTRADAS Nombre126 Y No[13] Esto es así porque ciertamente muchos asuntos involucran derechos fundamentales, pero deben ser conocidos en su sede correspondiente. Por ejemplo, si una persona aduce que la defraudaron en una compraventa de un lote, qué duda cabe ?si en efecto fue así? que le han violado su derecho y que este es un derecho fundamental. Se trata del derecho reconocido en el artículo 45 de la Constitución Política; pero es claro que el litigio sobre el particular no corresponde ser conocido en la Sala C[14] Lo anterior significa que, para que un caso sea examinado y resuelto en un recurso de amparo, no basta aducir que la lesión del derecho fundamental alegada tiene su causa en una conducta de la parte recurrida. Y la Sala procura respetar esos criterios justamente para no invadir las competencias de la jurisdicción ordinaria (establecidas en los artículos 49 y 153 de la Constitución Política) o las de las autoridades administrativas, según corresponda.

Pero no solo por ese motivo, sino porque de esa manera, residenciándose el asunto donde corresponde, las partes tendrán todas las garantías procesales propias del debido proceso, que en un recurso sumario e informal como el amparo se reducen. Así, por ejemplo, los informes de las autoridades, al ser dados bajo fe de juramento, se tienen por ciertos, por lo que las posibilidades de desvirtuarlos son mucho menores que en procesos plenarios.

Por eso la Sala debe constatar si en atención al objeto impugnado (los actos presuntamente lesivos), al objeto protegido (los derechos fundamentales presuntamente conculcados) y al tipo de lesión (si la afectación es directa o no) el asunto es susceptible de ser conocido en un proceso sumario como es el amparo.

Dicho lo anterior, surge la duda sobre si el presente recurso debió ser admitido. Todo parece indicar que no se trataba de una orden sanitaria relativa a un tema sencillo, sino, por el contrario, a uno de gran complejidad, que difícilmente podía ser analizada en un proceso sumario. Sin embargo, como bien dice la sentencia, la Sala Constitucional ha dejado un reducto de posibilidad de admitir recursos de amparo contra una orden sanitaria y, de hecho, excepcionalmente les ha dado curso. De manera que se podría pensar que en vista de la magnitud del agravio aducido y de la calidad del presunto agraviante y, ¿por qué no?, de la calidad de los presuntos agraviados, el caso revestía una relevancia particular. Por eso bien se podía entender que tenía las condiciones para ser tenida como una excepción a la línea jurisprudencial. Así, la duda sobre si el objeto impugnado podía ser conocido en esta sede mediante un proceso sumario, se resolvió a favor de los recurrentes, en la fase preliminar y no solo en esta.

La capacidad y la legitimación de las partes En tercer lugar, la Sala debe verificar si la parte recurrente tiene la capacidad y la legitimación procesales. Respecto de la capacidad, al ser un proceso informal, toda persona física en uso de razón y toda persona jurídica debidamente representada la tiene. En el presente caso, se trata de personas físicas que evidentemente tienen capacidad de actuar. Respecto de la legitimación activa se puede afirmar que en el ordenamiento costarricense esta es universal: toda persona la tiene siempre que alegue violado algún derecho fundamental propio o ajeno. Esto es así porque el artículo 48 de la Constitución Política dice “toda persona”, y como toda persona (física) por el hecho de serlo tiene derechos fundamenprima facie, los recurrentes tienen legitimación para acudir en amparo, porque alegan la lesión a la libertad de expresión, que está reconocida “por la Constitución Política y (…) el Derecho Internacional vigente en Costa Rica” (artículo 2 de la LJC). No obstante, de nuevo, cabe preguntarse si en efecto la tienen, porque ha de recordarse que piden la anulación de –.

Ahora bien, se podría sostener que ese margen de[15][16] * Superada esa fase de admisibilidad, como se sabe, la presidencia dicta un auto de curso, y se inicia la instrucción del proceso con el fin de conocer el asunto por el fondo.

Fase de conocimiento: aspectos por considerar y reconsiderar Generalidades Para conocer el asunto por el fondo, al di No obstante, no es eso lo único ni siquiera lo primero que la Sala debe hacer, sino que ha ocuparse de despejar[17][18][19] En primer término, debe cerciorarse de que es competente y por eso debe calibrar –ahora con más rigor aún y con todos los element[20] Verificación definitiva de algunos presupuestos procesales En el presente caso, como he dicho, se entendió que prima facie dichos presupuestos se cumplían; pero, como he señalado, surgen dudas razonables sobre si realmente su cumplimiento se puede tener por acreditado. Por eso de inmediato analizaré dos aspectos que, a mi juicio, corresponde ser examinados otra vez: el objeto impugnado y la legitimación activa.

• a)El objeto impugnado: la orden sanitaria y el oficio conexo Lo que interesa es determinar si e La orden sanitaria y el oficio conexo Además de los videos que aportaron, los recurrentes adjuntaron al escrito de interposición una serie de oficios y publicaciones como prueba documental:

“Notificación de la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva del 8 de julio de 2022; informe de los inspectores del Ministerio de Salud, fechado el 5 de julio; visto bueno de los aforos emitidos por el Ministerio de Salud el 16 de diciembre del 2021 y ampliación del [21] Los recurridos, además de los actos impugnados, aportaron también otros documentos:

La denuncia; el oficio mediante el cual se remite la denuncia ante el Área Rectora de Salud Central Norte, varias notas periodísticas que dan cuenta de la problemática vial cuando se realizan eventos en Parque Viva; el acta de inspección n.°MS-DRRSCN-DARSA2-1639-2022; el oficio n.°MS-DRRSCN-DARSA”-1641-2022 de 5 de julio que es informe de seguimiento a la denuncia ambiental; oficio n.°DVT-DGIT-2022-339, suscrito por el Ing. Nombre27, funcionario de la Dirección General de Ingeniería de Tránsito; acta de la sesión del Comité Asesor Técnico de Concentraciones Masivas del 7 de julio de 2022; orden sanitaria n.°MS-DRRSCN-DARSA2-OS-0368-2022; informe técnico n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Nombre29, Sub-Gerente operativo de la Cruz Roja Costarricense; informe técnico n.°CBCR-027150-2022-OPOB-00741 del 10 de julio de 2022, suscrito por el señor Nombre31, de Operaciones de Nombre140 del Benemérito Cuerpo de Bomberos; informe n.°CRC-GG-OF-012-2022 del 12 de julio de 2022, suscrito por el señor Nombre30, Gerente General de la Asociación Cruz Roja Costarricense; informe n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Nombre29, Sub-Gerente operativo de la Cruz Roja Costarricense y el informe n.°911-DI-2022-2202 del 11 de julio 2022, suscrito por Nombre32 del Sistema de Emergencias 911.

A eso se sumaron los que después aportaron los recurrentes:

“Comunicado oficial, Municipalidad de Alajuela, desmintiendo al INVU (Prueba #1). Certificación notarial de usos de suelo # MA-ACC-U-01335-2013, de fecha 18 de junio de 2013, para construcción de Hotel y Servicio de Comidas, # MA-ACC-U-01334-2013, de fecha 18 de junio de 2013, para construcción de Anfiteatro y Centro de exhibiciones, # MA-ACC-U-01336-2013, de fecha 18 de junio de 2013, para construcción de campo ferial, # MA-ACC-U-00817-2013. de fecha 16 de abril de 2013, para construcción de parqueo, campo ferial y centre de convenciones. (ver prueba #2, primer punto). Resolución numero 3088-2013 de Nombre178. Proyecto Mejoras al Autódromo La Guácima. (ver prueba #4). Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de ingeniería de Tránsito emite formal aprobación del estudio de impacto vial (ver prueba #5). Certificación notarial del informe de la consulta de autenticidad de sellos, por medio de código OR del proyecto Obras de Infraestructura La Guácima, emitido por el Colegio Federado de Ingenieros y Arquitectos (ver prueba #2, segundo punto).

Copia del índice de láminas de pianos constructivos del proyecto "Obras de Infraestructura la Guácima (ver Prueba # 3). Oficio CBCR-0018379-2014-INB-00736, fechado 16 de junio del 2014 donde el Benemérito Cuerpo de Nombre140 acepta la eliminación de hidrantes y se pide subsanar defectos menores. (Ver Prueba # 6). Oficio DVT-DGIT-ED-2015-4056 donde el MOPT acepta la finalización del proyecto de construcción de mejoras viales y deja constancia de la recepción de las obras. (ver prueba # 7). Certificación notarial de Carta de Intenciones para reactivar servicios férreos entre Parque Viva (Guácima) e Incofer (ver prueba #8). Certificación notarial de las páginas 9 y 83 del documento ’APROBACION DEL CONTRATO DE PRESTAMO N° 2241 ENTRE EL GOBIERNO DE LA REPUBLICA DE COSTA RICA Y EL BANCO CENTROAMERICANO DE INTEGRACION ECONOMICA (BCIE) PARA APOYAR EL FINANCIAMIENTO DEL PROYECTO; CONSTRUCCl0N (EOUIPAMIENTO Y PUESTA EN OPERACIÓN DE UN SISTEMA DE TREN RAPIDO DE PASAJEROS (TRP) EN LA GRAN AREA METROPOLITANA, publicado en el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020 (ver prueba # 2. tercer punto).

Certificación notarial de los Editoriales de La Nación de 25 y 26 de agosto de 2020 que explican la infamia sobre el supuesto ramal del tren eléctrico. (Ver prueba # 9). Certificación de las siguientes notas periodísticas: Noticia titulada “Los mandos medios a cada rato se atraviesan", Noticia titulada "Zona franca en Grecia iniciara obras después de 24 meses varada por rechazo de acceso a ruta 1", Nota titulada Nombre139 ataca a La Nación con dates distorsionados, Manifiesto “Defendemos la libertad de prensa", Articulo de Nombre128 ¿En qué se parece Nombre51 y sus actuaciones a Nombre129 y las suyas? (Ver prueba #9). Certificación notarial del envío de respuesta a la CCSS en fecha lunes 8 de agosto del 2022, y sus documentos adjuntos; escrito de respuesta y hecho relevante pertinente fechado 26 de junio. (ver prueba # 10” (escrito de los recurrentes de 17 de agosto de 2022, p. 13; se han suprimido los puntos y aparte).

Eso significa que al momento de conocer por el fondo este asunto constaban en el expediente numerosos oficios de muy distintas autoridades sobre un tema particularmente complejo.

Es decir, no se trataba de una orden sanitaria como la que fue extendida a miles de habitantes durante la pandemia, muchas de las cuales fueron impugnadas mediante la interposición de recursos de amparo y que, por cierto, la Sala en su gran mayoría sistemáticamente rechazó. En dichos recursos, se alegaba que la orden sanitaria había comportado la lesión a otros derechos: libertad de tránsito, libertad de comercio, derecho al trabajo, etc. Sin embargo, la Sala entendió que debían inadmitirse, de conformidad con una reiterada jurisprudencia sobre órdenes sanitarias, a la que de inmediato aludiré.

Lo que ahora interesa destacar es que el objeto impugnado (la orden y el oficio conexo) no solo en sí mismo tiene amplios y complejos alcances, sino que para determinar si esos actos fueron arbitrarios era del todo necesario, al menos, analizar los documentos aportados por las partes, y estos ni eran pocos ni eran simples, ni congruentes entre sí.

(2) La no idoneidad del amparo: jurisprudencia constitucional Corresponde ahora examinar qué ha dicho la jurisprudencia de esta Sala sobre la idoneidad del recurso de amparo para conocer órdenes sanitarias. Entresacaré algunas de sus numerosísimas resoluciones sobre este tema. Comentaré primero la robusta jurisprudencia dictada desde los primeros años de este Tribunal y que atraviesa toda su historia hasta el año 2019, y después la que fue dictada durante la pandemia provocada por el COVID-19. Al referirme a ambas etapas dividiré las sentencias en aquellas mediante las que se dictan rechazos y las sentencias en las que se resuelve por el fondo. Dentro de estas últimas, haré algunas observaciones a un caso que es citado por la mayoría en la sentencia, en el que se adujo que la orden sanitaria impugnada lesionaba la libertad de expresión.

(a) Jurisprudencia en tiempos normales Como se verá, en tiempos normales, lo habitual ha sido que la Sala rechace de plano los recursos de amparo en los que se impugnan órdenes sanitarias. Desde sus orígenes la Sala Constitucional ha mantenido una casi ininterrumpida línea jurisprudencial en la que afirma de que no le corresponde revisar la legalidad de las órdenes sanitarias.

“UNICO: (…) Estando fundado el acto que se recurre en los artículos 356 y 363 de la Ley General de Salud, y en lo dispuesto en el Reglamento de Seguridad e Higiene Industrial, y habiendo tenido y ejercido el accionante su derecho de defensa através (sic) del procedimiento administrativo seguido al efecto, el acto se convierte en legítimo, desde el punto de vista constitucional, es decir, no produce quebranto constitucional alguno, quedando esta Sala en imposibilidad de revisar los alcances de mera legalidad que pudieran derivarse de él, aspecto que, en todo caso, sí puede ser discutido en la vía ordinaria correspondiente. No obstante se aclara que, no pueden las autoridades de Salud ordenar al accionante a demoler la estructura, si no demuestran que él es el propietario, ni pueden hacerlo por su cuenta, si no han oído previamente al propietario de ese inmueble” (sentencia 1991-1948; el destacado no es del original).

También ha señado que el recurso de amparo no es la vía para valorar la oportunidad y legalidad de la orden:

“[E]l recurso pretende que la Sala examine las razones técnicas en que ha fundamentado el Ministerio la orden sanitaria, a la que califican de ilegal e injusta y evidenciándose que no se ha dado ninguna violación a un derecho fundamental y no siendo esta la vía para revisar la oportunidad y la legalidad de lo actuado, el recurso resulta improcedente y debe rechazarse de plano” (sentencia 1992-856).

En idéntico sentido, y siempre para rechazar de plano, ha dicho que ya hay otros mecanismos para impugnarlas, esto es, los recursos administrativos ordinarios:

“El amparo, como se infiere de lo que afirma el recurrente, no tiene otro fundamento más que evitar que se declare el cierre de la actividad comercial aludida. La Sala ha sostenido reiteradamente, que las órdenes sanitarias son susceptibles de ser combatidas por medio de los recursos ordinarios del procedimiento administrativo, de manera que los interesados pueden, en esa vía, demostrar técnica y pericialmente, que su actividad no está en los supuestos a que alude la orden dicha. Así las cosas, el recurso resulta improcedente en la vía constitucional y siendo un asunto de legalidad, debe ser debatido en la sede correspondiente” (sentencia 1992-3056; el destacado no es del original).

Además, ha indicado que la orden sanitaria no constituye el acto final del procedimiento, por lo que su imposición de suyo no comporta una lesión al debido proceso:

“Sobre la procedencia o no de la orden sanitaria emanada por las autoridades competentes del Ministerio de Salud, los requerimientos técnicos que en ella se hacen respecto del incumplimiento en las condiciones físico- sanitarias y la falta de permisos aludida, tampoco pueden discutirse en esta sede, dado que son las autoridades del Ministerio de Salud, de conformidad con la legislación vigente y aplicable, las que deben velar por el cumplimiento de los requisitos mínimos en los negocios comerciales, entre otros, mediante criterios técnicos debidamente respaldados. Reiteradamente esta Sala ha señalado que las órdenes sanitarias que, en ejercicio de sus competencias, dictan las autoridades de salud, no constituyen el acto final de un procedimiento administrativo en el que no se le ha dado participación alguna a los afectados, sino que por el contrario, debe considerarse el acto inicial, el traslado que se hace a los afectados, para iniciar el procedimiento administrativo, dándoles oportunidad para que conozcan los estudios técnicos que respaldan la orden, los estudien, cuestionen, ofrezcan pruebas de descargo y hagan propuestas alternativas para solucionar los problemas que las autoridades han detectado.

Igualmente, pueden cuestionar la orden mediante el recurso de revocatoria y apelación, si a bien lo estiman conveniente –tal y como lo ha hecho el recurrente-. Si no se le pusiera en conocimiento de los estudios y pruebas que sustentan la orden, o no se le diere oportunidad de cuestionarla, eventualmente podría estarse frente a una violación al debido proceso revisable en esta sede, pero ello no ha ocurrido en el caso que nos ocupa” (sentencia 2000-11215).

Y ha agregado que la Sala no es una instancia más en el procedimiento administrativo ni un contralor de legalidad.

“Lo planteado por la recurrente no es más que un conflicto de legalidad ordinaria ajeno al ámbito de competencia de esta Sala. En primer lugar, conforme lo ha sostenido reiteradamente este Tribunal, la orden sanitaria es el acto inicial del procedimiento administrativo, a partir del cual debe cumplirse el debido proceso a través del ejercicio de los recursos que procedan, como efectivamente los ejerció la amparada (folios 7 a 10). Ahora bien, lo resuelto en torno a dicho recurso por el Ministerio de Salud, según resolución DM-RC-9030-05 de las catorce horas treinta y un minutos del treinta y uno de octubre del dos mil cinco no puede se objeto de impugnación en esta vía, ya que la Sala no es una instancia más dentro del procedimiento administrativo ni un contralor de legalidad. De modo que si la recurrente estima que su casa no es inhabitable y, por ende, no procede ordenar su desalojo, y que los informes rendidos tanto por la Comisión Nacional de Emergencias como por el propio Ministerio de Salud -este último en relación con la inspección de campo realizada- son generales y no individualizan la situación concreta de su caso, no es en esta vía que debe presentar sus alegatos, sino ante la propia administración recurrida o, en su caso, en la jurisdicción ordinaria, pues son éstas -y no la Sala- las competentes para conocer y pronunciarse al respecto” (sentencia 2006-00773; el destacado no es del original).

Es decir, ha entendido que la jurisdicción constitucional no es la sede apropiada para conocerlas. Así, ha explicado que el examen sobre las órdenes sanitarias no se aviene con el carácter sumario del amparo:

“Por otra parte, como lo que se pretende con el amparo, según se desprende del libelo de interposición del recurso, es discutir en esta sede soporte técnico de los actos administrativos impugnados, el recurso es inadmisible, pues el diferendo que existiera sobre el particular constituye un conflicto de mera legalidad que por su naturaleza debe ser planteado, discutido y resuelto en la vía administrativa -como ha ocurrido-, o en la vía contencioso administrativa por agotamiento de la fase anterior. Más aún, discutir en esta sede sobre el contenido o sustento de las órdenes cuestionadas implica revisar en esta jurisdicción los criterios técnico empleados para llegar a la determinación impugnada, lo que no sólo resulta ajeno a la vía del amparo, sino que además excede su carácter sumario” (sentencia 1997-2548, el destacado no es del original).

Siguiendo esa lógica, y recogiendo muchos de los criterios antes mencionados, también ha sostenido que, si se está disconforme con una orden sanitaria, además de los recursos administrativos, se puede acudir a la vía ordinaria, para que ahí se valore el sustento técnico de esta, pues esto exige una fase probatoria importante:

“II.- CASO CONCRETO. Esta Sala ha establecido en forma reiterada que las ordenes sanitarias que emite el Ministerio de Salud -como ocurre en este caso-, constituyen justamente el acto inicial del procedimiento correspondiente en la cual se comunica las razones de hecho y de derecho que motivan tales órdenes, momento a partir del cual el administrado puede ejercer plenamente su derecho de defensa, y recurrir los actos administrativos por medio de los recursos y ante las instancias previstas al efecto. De esta forma, para el dictado de los actos en cuestión, la Administración no tenía que observar el debido proceso, dar audiencia previa o hacerle prevención alguna al amparado, pues con el ejercicio de los recursos que se le indican en las propia resoluciones citadas supra, se ejerce el derecho de defensa y se cumple el debido proceso. Ahora bien, si el amparado está disconforme con la procedencia de dichas órdenes sanitarias, ya que cuestiona su sustento técnico o la valoración probatoria que la fundamenta, ello hace referencia a un conflicto de legalidad ordinaria cuyo conocimiento y resolución escapa del ámbito de competencia de esta Sala.

Máxime que esto entraña una discusión probatoria y técnica cuya resolución no es propio del carácter eminentemente sumario del recurso de amparo, proceso en el cual no es material ni razonablemente posible entrar en un complicado sistema probatorio o en la práctica de diligencias probatorias lentas y complejas. En mérito de lo expuesto, el recurso es inadmisible y así debe declararse” (sentencia 2015-001416; el destacado no es del original; idénticas consideraciones fueron reiteradas en las sentencias 2016-9673, 2016-15956 y 2016-17176).

Todas estas sentencias hasta aquí citadas –que son simples ejemplos, porque se trata de líneas reiteradísimas– han sido dictadas para rechazar de plano. Es decir, son argumentos con los que la Sala justifica por qué no entra a conocer por el fondo el asunto.

Sin embargo, ciertamente de manera excepcional, este tribunal ha admitido a trámite recursos de amparo contra órdenes sanitarias, cuando se igualmente la línea jurisprudencial es sólida en el sentido de que el fundamento técnico de la orden sanitaria correspondería ser discutido en las vías ordinarias de legalidad. En la inmensa mayoría de las veces, en esa fase declara sin lugar el recurso, y habitualmente en esos casos reitera muchos de los argumentos recogidos en los rechazos de plano. De inmediato haré referencia a algunos ejemplos.

Así, en un caso concluyó que no se había vulnerado el derecho de defensa:

“II.- Sobre el[22]esas reflexiones que no encuentra esta Sala que al recurrente se le haya vulnerado su derecho de defensa” (sentencia 2002-10129; el destacado no es del original).

También ha explicado que la orden sanitaria no se suspende con la interposición de los recursos ordinarios y que eso no lesiona el debido proceso. En lo conducente, advirtió lo siguiente:

“Además, en cuanto a la ejecución de la clausura del local comercial de la amparada, la Administración tiene la potestad de ejecutar por sí, sin recurrir a los Tribunales, los actos administrativos eficaces, válidos o anulables, aun contra la voluntad del administrado. Por esto, la interposición de recursos no tiene efecto suspensivo, a menos que el servidor que lo haya dictado, su superior jerárquico, la autoridad que decide el recurso o el órgano jurisdiccional que conoce del conflicto, ordenen suspender la ejecución cuando la misma pueda causar perjuicios graves o de difícil reparación, o cuando se trate de actos ineficaces o absolutamente nulos (ver artículos 146 y siguientes de la Ley General de la Administración Pública). Por otra parte, el artículo 53 de la Ley Orgánica del Ministerio de Salud, indica que el establecimiento de los recursos no suspende la ejecución del acto recurrido, a menos que, en casos muy calificados, en forma ra Ha afirmado que no le corresponde cuestionar la legitimidad o contenido de las disposiciones del Ministerio de Salud, en lo atinente a la ejecución de las órdenes sanitarias:

“Es necesario aclarar que no corresponde a este Tribunal cuestionar la legitimidad o el contenido de las disposiciones tomadas por el Ministerio de Salud en cuanto a los plazos, prórrogas y resolución de recursos, relacionados con el dictado de las órdenes sanitarias, toda vez que ello es parte de su propia compet[23] Además, ha indicado que este Tribunal no es competente para conocer de las razones por las cuales se dispuso el cierre de un centro infantil, reiterando que no le corresponde valorar en un recurso de amparo el fundamento técnico de dicha decisión:

“IV.- Ahora bien, si la recurrente está inconforme con la actuación de la administración por haber revocado el acuerdo 31-17-2012, en el que se otorgó la habilitación al centro infantil "El Naranjito", dado que no cuenta con las condiciones mínimas requeridas y se instruyó al Área Rectora para realizar la clausura, ello escapa del ámbito de competencia de esta Sala, ya que el recurso de amparo ha sido instituido para tutelar infracciones o amenazas inminentes a los derechos y libertades fundamentales de las personas, y no para controlar en abstracto la correcta aplicación del derecho. En consecuencia, no corresponde en esta sede analizar las razones del Consejo accionado para disponer el cierre objetado, que como se indicó es parte de sus competencias, ya que el dominio de esta Sala está reservado al análisis de los acciones u omisiones impugnadas, y a su comparación con el ordenamiento jurídico, para determinar la legitimidad o ilegitimidad de lo impugnado, sin que sea posible incursionar en campos de la ciencia o de la técnica para ello, en atención a la naturaleza sumaria del amparo, proceso en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en si, circunscribiéndose más bien a las hipótesis fácticas en que esos actos se fundan.

Por lo tanto, dichos extremos corresponden conocerse, discutirse y resolverse en el propio procedimiento administrativo, y una vez concluido el mismo, si la amparada estima que la resolución que dio por concluido el proceso administrativo, es contraria a derecho, tiene la facultad de impugnarla ante la vía contencioso administrativa, a fin de que en esa sede se determine sobre la procedencia o no de lo dispuesto por los órganos recurridos” (sentencia 2014-2423, el destacado no es del original).

Como puede observarse, se trata de ejemplos de sentencias que resuelven por el fondo y desestiman el recurso, aduciendo casi siempre lo mismo que se suele decir en los rechazos de plano.

(b) Jurisprudencia durante la pandemia Particular atención requiere la jurisprudencia de esta Sala dictada durante la pandemia provocada por el COVID-19. Especialmente en los momentos de mayores restricciones se interpusieron numerosos recursos de amparo en los que se impugnaban órdenes sanitarias, aduciendo que lesionaban el derecho al trabajo y la libertad de comercio (al obligar, por ejemplo, al cierre de locales comerciales). Eran casos de gran importancia, pues la limitación en el ejercicio de tales derechos supuso serios impactos en tantas familias costarricenses que, de la noche a la mañana, vieron mermada significativamente –cuando no cerrada– la fuente de ingresos para su subsistencia. En otros recursos se impugnaron las restricciones sanitarias vehiculares y las disposiciones sobre el uso de mascarillas.También se impugnaron órdenes sanitarias alegando que lesionaban derechos,ya no en la esfera patrimonial, sino en una más íntima y no menos importante:por ejemplo, se adujo la lesión a la libertad de culto y la violación a los derechos de las personas privadas de libertad para recibir visitas conyugales y de sus demás familiares.En todos esos casos,se podría decir, la Sala fue implacable y consistente, como de seguido se pasa a demostrar con algunas pocas sentencias, que sonsolo una muestra muy ilustrativa de lo que se acaba de afirmar.

Así, respecto de un amparo en el que se impugnaba una orden sanitaria que disponía el cierre de un negocio comercial ?eventual sustento laboral y económico de la familia de sus dueños y de sus colaboradores que dependen de la operación de dicho local?, la Sala dijo que el conocimiento de ese asunto excedía el carácter sumario del amparo y rechazó de plano el recurso:

“II.- SOBRE EL CASO CONCRETO. En el sub iudice, advierta el recurrente que no corresponde dilucidar en la vía sumaria del amparo si los hechos acaecidos son ciertos o no, si a su establecimiento comercial le resulta aplicable una u otra normativa sanitaria, o si la clausura era procedente; de igual forma, no compete a la Sala determinar la procedencia de la multa. Dicho de otro modo, no le corresponde a este Tribunal hacer las veces de jurisdicción de alzada en la materia y revisar si la decisión de decretar y ejecutar tal cierre, se ajusta o no a los hechos y a la normativa infra constitucional vigente, ni mucho menos usurpar las atribuciones de la autoridad sanitaria recurrida y, previa comprobación de los requisitos legales y reglamentarios del caso, ordenar que se anulen los actos cuestionados, tal y como pretende el recurrente, pues se trata de extremos de legalidad ordinaria que deben ser dirimidos en la vía común, administrativa o jurisdiccional.

De este modo, lo expuesto constituye un extremo de legalidad ordinaria que excede la naturaleza eminentemente sumaria del recurso de amparo. Por lo tanto, deberá la parte recurrente, si a bien lo tiene, plantear sus inconformidades o reclamos ante la autoridad recurrida, o bien, en la vía jurisdiccional competente, sedes en las cuales podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es improcedente y así debe declararse” (sentencia 2021-3603; consideraciones muy similares fueron reiteradas en la sentencia 2022-3545).

En igual sentido se pronunció en otra de tantas ocasiones, cuando al rechazar de plano los amparos, señaló que este tipo de actos deben ser conocidos en las vías ordinarias:

“Sostiene que, mediante la orden sanitaria R1-b11-001-2020 se dispuso el cierre de su negocio. Agrega que autoridades de policía se apersonaron al local comercial y lo clausuraron, debido a que supuestamente se permite el consumo de licor dentro del establecimiento, lo cual refuta. Considera irrazonable que autoridades policiales que no son funcionarios del Ministerio de Salud hayan clausurado el negocio por medio de una orden sanitaria, debido a la supuesta infracción del Decreto Ejecutivo 42227-MP-S dictado con ocasión de la pandemia del coronavirus COVID-19. (…)

En el sub lite, la Sala observa que lo planteado por la parte recurrente no es más que un conflicto de legalidad ordinaria, que no configura una violación a los derechos fundamentales de tal magnitud como para justificar la intervención de esta jurisdicción. En efecto, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni tampoco determinar si se incurrió o no en la falta acusada. Además, la Sala no omite manifestar que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente. De modo que, a partir de la notificación de tal orden, el administrado puede ejercer plenamente su derecho de defensa, sea recurriendo el acto administrativo ante las instancias previstas al efecto, ocasión en que puede aportar la prueba que considere relevante y plantear los alegatos que estime oportunos- o realizando todos los actos que considere pertinentes en el ejercicio de su defensa. (…) En mérito de lo expuesto, se rechaza el recurso” (sentencia 2020-7165; el destacado no es del original; en igual sentido vid. sentencia 2020-7626 y 2020-7934).

En el contexto de la pandemia también se cuestionaron las medidas de apertura gradual que dispuso el Ministerio de Salud. Por ejemplo, los dueños de unos gimnasios adujeron que se les había infringido el derecho a la igualdad, el derecho al trabajo y a la libertad de comercio, y la Sala resolvió lo siguiente:

“I.- Objeto del recurso. Los recurrentes, quienes son dueños de gimnasios ubicados en la GAM, aducen incongruencia en la selección de los establecimientos comerciales que el gobierno, en el contexto de la pandemia por la covid 19, ha permitido abrir a partir del 10 de agosto de 2020. Refieren que el recurrido ha autorizado la apertura de salones de belleza, centros de estética y clubes de natación, pero no la de los gimnasios, pese a que en ellos se desarrollan actividades similares “e incluso más seguras que las que fueron permitidas”. (…) Arguyen que la restricción propicia la competencia desleal, pues los usuarios están trasladándose a los gimnasios ubicados en las zonas amarillas por encontrarse cerrados los que están localizados en zona naranja, lo cual, además, perjudica la contención del virus, ya que se entremezclen las personas de diferentes sectores. Estiman que la fase de apertura recién iniciada genera un trato discriminatorio y violenta su derecho al trabajo y la libertad comercial. Piden que se autorice la reanudación de las actividades enfocadas en el mantenimiento y acondicionamiento físico.

II.Sobre el caso concreto. Como se colige, los reclamos de la parte tutelada versan sobre aspectos que exceden las competencias de este Tribunal Constitucional, el cual está llamado a enmendar groseras violaciones a derechos fundamentales, mas no a servir como un instrumento genérico para canalizar peticiones y disconformidades de otros tipos. En este sentido, este Tribunal Constitucional no es un contralor de la legalidad de las actuaciones o resoluciones de las autoridades recurridas y tampoco puede reemplazar a la Administración activa en la gestión de sus competencias, de modo que no le corresponde usurpar las atribuciones legalmente conferidas a otras dependencias u órganos como lo es el Ministerio de Salud, quien ejerce la rectoría en cuestiones atinentes al resguardo de la salud pública, en virtud de lo cual tiene la facultad y el deber de decretar las medidas técnicas que estime útiles y necesarias en el contexto de la actual pandemia, cuya pertinencia técnica no corresponde ser analizada en la vía sumaria del amparo sino que, si a bien lo tiene la parte recurrente, deberán ser planteados los agravios atinentes en la vía ordinaria de legalidad competente”(sentencia 2020-15420; el destacado no es del original).

De forma similar, la Sala se abstuvo de conocer sobre supuestas restricciones a la libertad de culto. Por ejemplo, se consideró lo siguiente:

“La parte recurrente manifiesta su disconformidad con las medidas tomadas por la Presidencia Nombre01 y el Ministerio de Salud, en la atención de la pandemia ocasionada por el COVID-19 pues, según estiman, resultan discriminatorias. Consideran que se deben tomar los protocolos y medidas de protección propuestos por la Conferencia Episcopal, y proceder a la apertura inmediata de los lugares de libre culto (…). [P]or la vía del amparo, esta Sala no puede usurpar las atribuciones de las autoridades del Ministerio de Salud, a efecto de definir la procedencia de las pretensiones expuestas por la parte recurrente, de conformidad con las políticas de salubridad pública, pues se trata de materias que requieren ponderar criterios técnicos, médico-científicos y de oportunidad y conveniencia. Semejantes cuestiones, por su naturaleza y complejidad, deben dirimirse en la vía común, administrativa o jurisdiccional, y no en esta sede. En consecuencia, el recurso es inadmisible y así se declara”(sentencia 2020-9093; el destacado no es del original).

Adicionalmente este Tribunal advirtió que la aducida infracción a la libertad de culto correspondería ser planteada y resuelta en las sedes ordinarias:

“En este sentido, las restricciones sanitarias cuestionadas, prima facie, le son aplicadas a todos los templos e iglesias —independientemente de la religión o culto a la que pertenezcan— en atención a la naturaleza de la actividad y la congregación o afluencia de personas que asisten a ella, pues de lo que aquí se trata, es de tutelar el derecho a la salud y a la vida en una situación de emergencia sanitaria, todo lo cual toma primacía sobre otras consideraciones, sin que ello deje entrever, al menos preliminarmente y sin perjuicio de prueba en contrario, un deseo de perjudicar las actividades religiosas para dañar deliberadamente la libertad de culto. Por lo tanto, lo propio es que este asunto sea dirimido en la vía común, administrativa o jurisdiccional, por lo que deberá la parte tutelada, si a bien lo tiene, plantear sus inconformidades o reclamos ante la vía de legalidad competente, ya que es en tal sede en la cual podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es inadmisible y así se declara” (sentencia 2020-9570; el destacado no es del original).

Nótese que eso significaba –tanto como en los demás casos que aquí se están refiriendo– que, pese a que entendía que podría estar involucrada una libertad o derecho fundamental, estimaba que la vía de la legalidad era la competente para conocer del asunto.

En otras ocasiones, rechazó el recurso por el fondo, por ejemplo, cuando se trataba de las restricciones sanitarias vehiculares. Sobre el particular, resulta ilustrativa la siguiente sentencia en la que, haciendo eco de varios precedentes, descartó la supuesta ilegitimidad de la restricción a la libertad de tránsito, y concluyó:

“Bajo ese orden de ideas, estima la Sala que para el caso bajo estudio resulta perfectamente aplicable lo establecido en las sentencias citadas en los párrafos anteriores, en los cuales se descarta que exista lesión a los derechos constitucionales, ya que el Estado ostenta la capacidad de regular de manera especial la circulación de vehículos sobre un sector o zona determinada, en aras de hacer prevalecer un interés público. Debe hacerse notar que en virtud de este interés público, el Estado se encuentra legitimado para establecer ciertas reglas especiales en cuanto a la circulación de automóviles, en procura del bienestar y bien común de las personas.(…).

En síntesis, en el caso bajo examen, el reclamo de la amparada gira en torno al mismo hecho discutido en los precedentes aludidos, es decir, a la restricción vehicular aplicada por el gobierno central. Bajo esa perspectiva, siendo que ese reclamo guarda una estrecha similitud con lo ya conocido y resuelto en esta sede, y considerando que no existe motivo alguno para cambiar el criterio vertido previamente por la Sala, el recurso debe ser rechazado por el fondo, como en efecto se declara (sentencia 2020-6917; el destacado no es del original; en similar sentido vid. las sentencias 2020-7538 y 2020-9509).

En relación con la disposición sanitaria sobre la obligación de utilizar mascarillas, la Sala declaró que no estaba en capacidad de valorar los criterios técnico-sanitarios que la respaldaban:

“SOBRE LA ADMISIBILIDAD DE ESTE RECURSO. En el sub lite, el recurrente alega que la medida de obligar a todas las personas a emplear una mascarilla para controlar en Costa Rica la epidemia de coronavirus es discriminatoria y violatoria del derecho a la igualdad por irrazonable y desproporcionada. (…) Dado lo anterior, se le aclara que las determinaciones impugnadas obedecen a criterios técnico-sanitarios y de oportunidad y conveniencia que la Sala no está en capacidad de valorar” (sentencia 2020-12551; el destacado no es del original).

Sin embargo, ciertamente, durante la pandemia admitió a trámite otros amparos en los que se impugnaban órdenes sanitarias.

En uno de ellos, tenía la particularidad de que no solo estaba de por medio la clausura de un local comercial, sino de la detención de una persona por el incumplimiento de las restricciones sanitarias y, al resolverlo por el fondo, señaló que no le correspondía pronunciarse sobre la procedencia de la orden sanitaria:

“La recurrente estima lesionados sus derechos fundamentales, toda vez que es propietaria del Restaurante Malibu No. 2, el cual cuenta con patente de restaurante, y oficiales de la Fuerza Pública y de la Policía Municipal, quienes se apersonaron el 1° de abril de 2020 a tal establecimiento, clausuraron el local comercial y la privaron de libertad de manera ilegal por supuestamente haber incumplido una orden sanitaria (…). En la especie, el Tribunal observa que la privación de libertad de la tutelada, efectuada a las 20:08 horas del 1° de abril de 2020, se ejecutó conforme al numeral 235 inciso a) del Código Procesal Penal, pues los oficiales de la Fuerza Pública consideraron que la amparada había sido sorprendida en flagrante delito al permitir el consumo de licor en la barra del local comercial aludido, lo que contraviene las medidas de salud adoptadas ante la pandemia del coronavirus COVID-19. (…) De esta forma, en el sub lite, no se evidencia que la tutelada haya sido aprehendida ilegítimamente durante la tramitación inicial del proceso, por cuanto el ordenamiento jurídico prevé la posibilidad de que se efectúe la aprehensión de una persona cuando es sorprendida en flagrante delito o contravención. Ergo, lo procedente es declarar sin lugar el recurso.

Por otra parte, la tutelada solicita que se levanten los sellos de cierre impuestos al local comercial de su propiedad. Sin embargo, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni determinar si se incurrió o no en la falta acusada. Además, nótese que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente” (sentencia 2020-8302; el destacado no es del original).

También admitió a conocimiento unos alegatos de personas privadas de libertad. Sin embargo, al resolver por el fondo, igualmente se abstuvo de conocer los agravios relacionados con la suspensión de las visitas carcelarias y consideró que la discusión sobre esas disposiciones sanitarias no debía ser ventilada en esta sede:

“[L]a autoridad recurrida informa bajo fe de juramento -advertida de las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- que actualmente, todo tipo de visitas a centros penitenciarios se encuentran suspendidas como medida preventiva en relación a la pandemia producto del COVID-19, y que dicha disposición fue comunicada a toda la población privada de libertad, indicándoles que los trámites se mantendrían suspendidos hasta que se puedan hacer efectivos. En lo atinente a la suspensión del beneficio, este Tribunal ha dispuesto que la suspensión referida se trata de una medida provisional, ejecutada en cumplimiento de órdenes emitidas de forma coordinada por las autoridades sanitarias y penitenciarias, respecto de la cual no le corresponde a esta Sala fungir como una instancia de legalidad y, con base en ello, valorar los criterios técnicos utilizados para determinar la procedencia de dicha medida” (sentencia 2021-14529; el destacado no es del original; en idéntico sentido vid. la sentencia 2020-10317).

En similar sentido, respecto de una orden sanitaria que ordenaba el cierre del Depósito Libre de Golfito, la Sala reiteró que no es una instancia más dentro de los diferentes procesos administrativos y judiciales, por lo que no le compete conocer por el fondo este tipo de asuntos:

“Ante el escenario descrito, en primer lugar, es necesario indicarle al recurrente que la Sala Constitucional no es competente para fungir como una instancia más dentro de los diferentes procesos administrativos o judiciales que tramiten los administrados. En el caso concreto, el recurrente pretende que este Tribunal entre a revisar el desalojo decretado pues, en su criterio, el mismo es improcedente en vista de que considera que tiene más de veinte años de laborar en la Plazoleta del Depósito Libre de Golfito. Sin embargo, ese reclamo se dirige expresamente a cuestionar en esta sede, aspectos que compete dilucidar a la jurisdicción ordinaria, ya sea a nivel administrativo o judicial, pues será ahí en donde, previa valoración probatoria, se podrá determinar quién tiene mejor derecho sobre el inmueble. En este caso, se acreditó que el recurrente no cuenta con patente municipal para ejercer la actividad de venta estacionaria extendido por la Municipalidad de Golfito, ni tampoco permiso del Ministerio de Salud.

Incluso, no se pudo ni siquiera tener por probado que sea una de las personas desalojadas, según se extrae de los informes rendidos bajo juramento. En todo caso, según se aseguró bajo juramento, quienes se vieron afectados por el desalojo, acogieron la orden sanitaria sin problema. Así las cosas, al no tener esta jurisdicción competencia para analizar el fondo del asunto planteado, deberá el recurrente plantear su diferendo en la vía judicial ordinaria, previo agotamiento de la fase administrativa y por ende, no procede más que la desestimación del recurso como en efecto se ordena” (sentencia 2020-12161; el destacado no es del original).

Nótese de paso, que en esta y en las demás sentencias recién citadas, luego de haberle dado trámite, la Sala advierte en esta fase que no le corresponde resolver por el fondo y desestima el recurso; pero no es una desestimatoria del recurso porque entienda que la parte recurrente no tenga razón, sino porque constata que no cabe que en un recurso de amparo este tribunal se pronuncie por el fondo. Es decir, con más elementos, dice lo que habitualmente señala en los rechazos.

Asimismo, en otra ocasión la Sala reiteró que este tipo de medidas sanitarias ?al dictarse en el ejercicio de las propias competencias del Ministerio de Salud? no corresponde que, para determinar las razones que motivaron el acto, sean analizadas por la jurisdicción constitucional. También porque la orden sanitaria es el inicio del procedimiento administrativo, de manera que es a partir de su notificación que las partes pueden cuestionar su fundamento y ejercer su derecho de defensa:

“Tal y como se desprende de la sentencia supra citada, la orden de clausura que emite la administración es precisamente el acto que preside el inicio del proceso, por lo que es a partir de ese momento en que se expide la orden de clausura que debe respetarse de manera irrestricta el debido proceso en las actuaciones subsiguientes, lo cual según se describió anteriormente, fue debidamente respetado en el sub lite, al notificársele al recurrente la orden sanitaria e indicársele en esta los recursos que proceden y ante cuál autoridad, para que proceda de conformidad.

De igual forma, siendo medidas establecidas por los órganos administrativos al amparo de competencias que le son propias, resulta ajeno a la jurisdicción constitucional analizar o determinar si hay razones que hayan motivado su dictado, por lo que la discusión de su procedencia, viabilidad y duración escapa al conocimiento de esta jurisdicción (ver, en este sentido, sentencia No. 2006-9685, de las 13:17 horas del 7 de julio de 2006).

Así las cosas, lo procedente es declarar sin lugar el recurso en cuanto a este extremo, como en efecto se dispone, al comprobarse que al amparado se le brindó el debido proceso que corresponde en estos casos y se le informó cómo puede proceder, si a bien lo tiene, a efectos de impugnar las actuaciones que reclama” (sentencia 2021-7471; el destacado no es del original).

Es decir, aunque durante la pandemia la Sala dio curso a varios amparos en los que se impugnaban órdenes sanitarias, al resolverlos reiteró su jurisprudencia de siempre.

(c) El caso de Nombre107 Particular atención merece el precedente que resuelve un recurso de amparo presentado a favor del precandidato presidencial Nombre107. Fue interpuesto en el contexto de la pandemia y fue admitido a trámite, pero se trae a colación especialmente porque en él se adujo la infracción a su libertad de expresión y también porque en la sentencia que resuelve el presente caso, la mayoría invoca este precedente para ilustrar un supuesto en que esta Sala sí entró a conocer la legitimidad de una orden sanitaria. Sin embargo, se hace necesario aclarar que en aquel asunto la mayoría de la Sala no examinó propiamente la legitimidad de la orden sanitaria y la supuesta restricción ilegítima a la libertad de expresión del señor Nombre130. Dicho caso fue declarado con lugar por la mayoría al considerarse que hubo un problema probatorio de parte de los recurridos, quienes no resguardaron ni aportaron ante la Sala los videos de las manifestaciones del amparado que motivaron la emisión de la orden sanitaria. La Sala no valoró la legitimidad de la restricción a la luz de las declaraciones efectuadas por el señor Nombre130. Incluso la mayoría puso de manifiesto que bien podría el Ministerio de Salud dictar restricciones de este tipo si se hubiera comprobado una amenaza a la salud pública. Al respecto, se resolvió lo siguiente:

“[L]os videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.

La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.

Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.

Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública” (sentencia 2021-1515; el destacado no es del original).

Entonces, por las particularidades probatorias de ese caso –más bien por la ausencia de prueba– se dispuso la estimatoria del recurso. Pero, cabe reiterar que esa sentencia no se refirió al contenido de la orden sanitaria. De manera que, contrariamente a lo que se dice en la sentencia, muy respetuosamente considero que no es un buen ejemplo para ilustrar la tesis de la mayoría. En aquella ocasión, por cierto, el magistrado Nombre92 y yo salvamos el voto, sobre la base de la jurisprudencia que habitualmente ha afirmado que las órdenes sanitarias no son objeto de un recurso de amparo (vid. el voto salvado a la sentencia 2021-1515).

* A partir de la revisión de la jurisprudencia es posible concluir que históricamente la Sala Constitucional ha sido muy rigurosa y restrictiva en conocer de recursos de amparo en los que se han impugnado órdenes sanitarias, incluso cuando se ha aducido que conllevan lesiones a derechos y libertades fundamentales de gran relevancia. Para ello, se ha apoyado en la normativa de protección a la salud pública que, en tesis de principio, legitima la conducta de las autoridades del Ministerio de Salud; ha estimado que no le corresponde revisar el fundamento técnico de la decisión por tratarse de aspectos probatorios altamente complejos, que no son propios de ser dilucidados en un proceso sumario como es el amparo; y ha señalado que la orden sanitaria es el acto inicial del procedimiento administrativo, de manera que a partir de su notificación formal se activan los mecanismos recursivos, tanto en la propia sede administrativa, como en la sede contencioso-administrativa, que es la vía idónea para controlar la legalidad de la función administrativa.

Entonces, para ser consistente con esas sólidas líneas jurisprudenciales, lo procedente habría sido que la Sala también desestimara este recurso de amparo. Además, como se ha dicho, si este Tribunal no ha atendido otros recursos de amparo en los que se aducía que las órdenes sanitarias impugnadas violaban otros derechos y libertades fundamentales de altísima importancia en la vida de las personas y las comunidades (derecho al trabajo, la libertad de comercio, la libertad de culto y la libertad de tránsito) no es fácil encontrar una justificación suficiente para que en el caso concreto se haya realizado un quiebre a esas líneas.

Cabe hacer una última consideraciónsobre un tema que se ha dado por supuesto: ¿Y con base en quéla Sala ha dictado esa jurisprudencia, si, como también se ha indicado, el artículo 29 de la LJC no excluye expresamente a las órdenes sanitarias dentro de los actos administrativos que podrían ser impugnados en un amparo?

La respuesta es la siguiente: Primero, con fundamento en el artículo 7 de la LJC, que le da a la Sala, por su carácter de tribunal constitucional, la competencia de definir (precisar, demarcar) su propia competencia. Segundo, en virtud del artículo 9 de la LJC, que le permite rechazar un recurso de plano, cuando sea manifiestamente improcedente, o por el fondo, cuando haya precedentes. Nótese que, si como dice la norma, puede rechazar por el fondo en cualquier momento, a fortiori –y de hecho así lo hace, como se ha visto– puede rechazar por improcedente un recurso también en cualquier momento. Tercero, sobre la base del respeto a la naturaleza del proceso y a lo dispuesto en los artículos 48 y 153 de la Constitución Política. Y no solo por eso, sino también en atención a que ese artículo 48 no vino a anular el artículo 49 de la misma Constitución. Esto es, precisamente, lo que corresponde analizar ahora.

(3) La idoneidad de la vía contencioso-administrativa Es oportuno mostrar por qué la jurisdicción contencioso-administrativa es el marco previsto y propicio para el adecuado conocimiento del presente asunto.

(a) Previsión constitucional de control de la Administración Nótese que esa jurisprudencia constitucional sobre órdenes sanitarias, que tiene su origen en los primeros años de la historia de la Sala y se había venido fortaleciendo a lo largo de más de tres décadas, no afirma que estos actos administrativos de suyo son legítimos y que deben quedar exentos de control. En ese sentido, la Sala ha sido consistente en que le corresponde a la jurisdicción ordinaria hacer un análisis de legalidad para determinar que la orden sanitaria fue dictada conforme a Derecho. En efecto, justamente para ello el Constituyente estableció la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado. Por lo demás, es claro que el respeto a esa legalidad puede y suele tener impacto en la esfera de los derechos fundamentales, no solo patrimoniales. Pues bien, dice la Constitución:

Artículo 49.-Establécese la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado, de sus instituciones y de toda otra entidad de derecho público.

La desviación de poder será motivo de impugnación de los actos administrativos.

La ley protegerá, al menos, los derechos subjetivos y los intereses legítimos de los administrados.

A partir del contenido de ese artículo, la Sala ha derivado el principio “Actualmente, se admite por toda la doctrina del Derecho Público, el principio de la revisión jurisdiccional de la función administrativa, esto es, que cualquier manifestación específica de la función administrativa puede y debe ser revisada ante una instanciEste principio, en algunas constituciones, como la de Costa Rica, se traduce, al propio tiempo, en una garantía individual o derecho fundamental, así el artículo 49 de la Constitución establece la jurisdicción contencioso-administrativa[24][25][26] (…). Este Tribunal Constitucional ha enfatizado el rango constitucional que tiene el principio de la revisión jurisdiccional de la función administrativa y el derecho fundamental a obtener tutela judicial efectiva contra las conductas administrativas que infringen el bloque de legalidad, así en el Voto No. 9928-2010 (…) consideró lo siguiente:

?IV.- REGULACIÓN CONSTITUCIONAL DE LA JURISDICCIÓN CONTENCIOSO-ADMINISTRATIVA Y LA ATRIBUCIÓN CONSTITUCIONAL DE UNA COMPETENCIA. El constituyente originario y el poder reformador se ocuparon de definir la competencia material y, por consiguiente, la extensión y alcances de dos jurisdicciones esenciales para el Estado Social y Democrático de Derecho. En efecto, en los ordinales 10 y 48 se establece la competencia material de la jurisdicción constitucional y, en el numeral 49, la de la jurisdicción contencioso-administrativa. Lo anterior deja patente, en la voluntad del constituyente originario y del poder reformador, la trascendencia tanto del control de constitucionalidad como de legalidad de los poderes públicos en aras de garantizar el goce y ejercicio efectivos de los derechos fundamentales y humanos consagrados, respectivamente, en el texto constitucional y los instrumentos del Derecho Internacional Público. Sin duda alguna, tales preceptos constitucionales encarnan lo que la doctrina ha denominado la cláusula regia del Estado Constitucional de Derecho. En lo que se refiere, particularmente, a la jurisdicción contencioso-administrativa, el artículo 49 constitucional, después de la reforma parcial (…) de 1963, dispone lo siguiente: (…) A partir de la transcripción literal del precepto constitucional, cabe resaltar lo siguiente:

1°) El constituyente derivado o poder reformador optó por un modelo de justicia administrativa “judicialista”, esto es, encomendándole a un orden jurisdiccional especializado del Poder Judicial la competencia y atribución de ejercer la fiscalización de la legalidad de la función administrativa, esto es, su conformidad sustancial o adecuación con el bloque de legalidad. Este sistema ofrece garantías y ventajas comparativas considerables para el justiciable, tales como la especialización, lo que acompañado de la carrera judicial dispuesta de manera infra-constitucional, representa una verdadera garantía de acierto y de cumplimiento del imperativo constitucional contenido en el ordinal 41 de la Constitución de una “justicia cumplida (…).

5°) El constituyente derivado optó por una justicia administrativa mixta, por cuanto, el párrafo primero, al definir el objeto del orden jurisdiccional contencioso-administrativo -“garantizar la legalidad de la función administrativa”-, debe complementarse, ineluctablemente, con el párrafo in fine, al preceptuar que ley brindará protección, como mínimo, a los derechos subjetivos y los intereses legítimos –sin distinguir, en cuanto a estos últimos, por lo que resulta admisible la tutela tanto de los personales como de los colectivos, sea corporativos o difusos-. Consecuentemente, la jurisdicción contencioso-administrativa, según el Derecho de la Constitución, fue instituida tanto para velar por la legalidad de la función administrativa como para la tutela efectiva de las situaciones jurídicas sustanciales de los administrados frente a los poderes públicos. Se conjuga, así, constitucionalmente, un rol objetivo y subjetivo de la jurisdicción contencioso-administrativa'” (sentencia 2013-04491; el destacado no es del original).

Entonces la vía prevista para ejercer el control sobre actos administrativos como los impugnados es la contencioso-administrativa. Conviene ahora detenerse a considerar qué es lo que se examina en esa sede.

(b) Alcance del análisis en la vía ordinaria Si el objeto aquí impugnado (la orden sanitaria y el oficio conexo) se hubiese sometido al control en la vía contencioso-administrativa, se habrían valorado los requisitos de validez, es decir, los elementos sustanciales: tanto los subjetivos ?competencia, legitimación e investidura? como los objetivos ?motivo, contenido y el fin?; y los elementos formales ?motivación, procedimiento empleado y las formas de manifestación del acto?. También se habrían analizado los requisitos de eficacia ?apropiada notificación?. Además, téngase presente que en el caso concreto se aduce que se trata de una desviación de poder por lo que justamente correspondía examinar el motivo, contenido y fundamento de los actos administrativos a la luz de la Ley General de la Administración Pública (LGAP), que en lo conducente dispone lo siguiente:

Artículo 132.

1. El contenido deberá de ser lícito, posible, claro y preciso y abarca todas las cuestiones de hecho y derecho surgidas del motivo, aunque no hayan sido debatidas por las partes interesadas.

2. Deberá ser, además, proporcionado al fin legal y correspondiente al motivo, cuando ambos se hallen regulados.

3. Cuando el motivo no esté regulado el contenido deberá estarlo, aunque sea en forma imprecisa.

4. Su adaptación al fin se podrá lograr mediante la inserción discrecional de condiciones, términos y modos, siempre que, además de reunir las notas del contenido arriba indicadas, éstos últimos sean legalmente compatibles con la parte reglada del mismo.

Artículo 133.

1. El motivo deberá ser legítimo y existir tal y como ha sido tomado en cuenta para dictar el acto.

2. Cuando no esté regulado deberá ser proporcionado al contenido y cuando esté regulado en forma imprecisa deberá ser razonablemente conforme con los conceptos indeterminados empleados por el ordenamiento” (El destacado no es del original).

Para valorar dichos elementos y poder concluir, con el debido sustento, que se trata de unos actos administrativos arbitrarios, se hacía indispensable examinar el fundamento de la orden sanitaria y, por lo tanto, la abundante prueba técnica aportada, proveniente de varia Ese análisis, necesario para arribar a la conclusión de la supuesta nulidad del acto administrativo, excede sin duda alguna la naturavid. la línea ininterrumpida de la Sala, al menos, desde la sentencia 1997-2943, hasta la fecha en las recientes sentencias 2018-0787, 2019-16757, 2022-7145 y 2022-10379, entre otras).

En el caso concreto, como se ha dicho, era indispensable un análisis de plena prueba técnica para valorar la conducta administrativa de las distintas partes involucradas ?que no[27][28][29] En definitiva, como los recurrentes cuestionaron el fundamento de los actos administrativos impugnados, y los recurridos adujeron que se basaban en criterios técnicos, y la Sala pudo constatar que de suyo se estaba en presencia de materia altamente técnica y compleja, lo que correspondía en esta fase de conocimiento (en la que se suponía que procedía referirse al fondo del asunto) era reiterar la robusta jurisprudencia constitucional y, en atención a la naturaleza del recurso de amparo, declarar sin lugar el recurso en cuanto a la pretensión de anular los actos impugnados.

Se llega aquí a uno de los puntos clave del presente voto. Ya se ha dicho que prima facie el recurso cumple con los presupuestos procesales básicos para ser admitido, sin embargo, no cumple con esto último que se ha explicado: el análisis del objeto impugnado no es conforme con la naturaleza del proceso. En otros términos, lo que se impugna (la orden sanitaria y el oficio conexo), aunque se aduzca que es arbitrario y lesivo de derechos y libertades fundamentales, no corresponde ser conocido por la Sala Constitucional en un recurso de amparo, porque su plena y justa valoración excede la naturaleza sumaria de este proceso.

Pero la vía contencioso-administrativa no solo es la prevista para conocer este tipo de asuntos, especialmente si se considera la complejidad y los alcances de los actos impugnados en el presente caso, sino que se trata de una vía que tiene múltiples ventajas, como se explicará de inmediato.

(c) Ventajas de la vía ordinaria En primer lugar, la legitimación es más amplia todavía, según lo establece el artículo 10 del Código Procesal Contencioso-Administrativo (CPCA), pues pueden demandar quienes invoquen la afectación de intereses legítimos o derechos subjetivos y podrán pedir la declaratoria, el reconocimiento o el restablecimiento de una situación jurídica, con reparación patrimonial o sin ella.

Sin embargo, los recurrentes alegan que, si la Sala Constitucional no hubiese admitido este amparo, su derecho a la tutela judicial habría sido lesionado.

Aunque en un epígrafe posterior se hará referencia más detenida al tema de la legitimación, vale la pena citar de nuevo sus palabras y analizarlas a la luz de lo que ahora interesa:

“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (escrito de interposición, p. 2; el destacado no es del original).

Tales afirmaciones se apartan de lo dispuesto por el CPCA, pues, como se ha visto, los aquí recurrentes podían interponer una demanda para objetar la orden sanitaria y el oficio conexo, aduciendo que estos actos administrativos lesionaban su libertad de expresión y de prensa. No había ni hay obstáculo alguno para hacerlo: ni por el objeto impugnado (la orden sanitaria y el oficio conexo), ni por el objeto protegido (los derechos y libertades presuntamente violados), ni por la legitimación (que incluso podía tener como base intereses legítimos).

Entonces sí habrían estado legitimados no solo para acudir en defensa de los derechos constitucionales, sino de los legales; no solo de los derechos personales, sino de los patrimoniales; no solo de derechos subjetivos sino de intereses legítimos. Además, y esto es especialmente relevante para el caso que nos ocupa, podrían alegar no solo lesiones directas sino las indirectas y reflejas de cualquier derecho subjetivo o interés legítimo.

En segundo lugar, de con, para acudir a la vía contencioso-administrativa no es necesario agotar vía administrativa, al igual que no se exige para interponer un recurso de amparo, a tenor del artículo 31 de la LJC. De manera que los recurrentes bien pudieron ir a esa vía, tanto como lo hicieron al acudir a la Sala, sin esperar conocer de lo resuelto en el recurso de apelación interpuesto por la sociedad propietaria del inmueble.

En tercer lugar, la jurisdicción contencioso-administrativa tiene amplias facultades para[30] Artículo 19. 1) Durante el transcurso del proceso o en la fase de ejecución, el tribunal o el juez respectivo podrá ordenar, a instancia de parte, las medidas cautelares adecuadas y necesarias para proteger y garantizar, provisionalmente, el objeto del proceso y la efectividad de la sentencia. 2) Tales medidas también podrán ser adoptadas por el tribunal o el juez respectivo, a instancia de parte, antes de iniciado el proceso.

Además, el órgano jurisdiccional que ejerce esa justicia cautelar tiene amplia discrecionalidad para imponer a las partes diversos tipos de obligaciones, cuyo cumplimiento supervisará:

“Artículo 20.- Las medidas cautelares podrán contener la conservación del estado de cosas, o bien, efectos anticipativos o innovativos, mediante la regulación o satisfacción provisional de una situación fáctica o jurídica sustancial. Por su medio, el tribunal o el juez respectivo podrá imponerle, provisionalmente, a cualquiera de las partes del proceso, obligaciones de hacer, de no hacer o de dar. // Si la medida involucra conductas administrativas activas u omisiones con elementos discrecionales, o vicios en el ejercicio de su discrecionalidad, estará sujeta a lo dispuesto en el numeral 128 de este Código”.

De manera que el juez de lo contencioso-administrativo está facultado incluso para modular la suspensión del acto impugnado, determinando si se da de manera total o parcial y, en este último caso, si se imponen condiciones. Por ejemplo, podría haber señalado que la suspensión no regía para la realización de eventos depo Los recurrentes podían alegar los graves daños o perjuicios, actuales o potenciales derivados de los actos que , y el órgano jurisdiccional debía hacer una ponderación considerando el interés público y el de terceros, y los derechos que los recurridos dicen proteger (la vida, la salud e integridad de los usuarios del inmueble y de los vecinos) .

Sobre el proceso cautelar, las normas disponen unos plazos cortos y a la vez unas condiciones adecuadas para que el órgano tenga todos los elementos[31] Esta justicia cautelar no solo cuenta con previsiones normativas de gran calidad, sino que[32] Hay otra ventaja de la vía contencioso-administrativa que salta a la vista, especialmente cuando conoce de un proceso no sumario: la de ofrecer la posibilidad de contar con un examen exhaustivo de toda clase de prueba, a tenor del artículo 82 de CPCA.

Las ventajas y garantías procesales que ofrece la vía de lo contencioso-administrativa para conocer un asunto como el presente no acaban ahí. Si lo que se objeta es que la desventaja mayor es su lentitud, el artículo 69 del CPCA prevé una solución que contribuye a evitarla: la declaratoria de trámite preferente, que establece plazos mucho más cortos y prerrogativas para acelerar el proceso.

Nótese que no se trata de una solución para suspender los efectos del acto, pues para eso estaría la justicia cautelar, sino para resolver la controversia con más celeridad. De manera que el asunto bien pudo llegar a sentencia, en un plazo razonable, pese a su complejidad, justamente porque –en atención al objeto impugnado, a la repercusión misma de esta, y a los derechos que se buscaban garantizar– existían claras posibilidades de que siguiera ese trámite preferente.

• b)Legitimación Una vez que se ha constatado que había suficientes elementos para entender que no procedía entrar a resolver por el fondo el presente recurso, pues la vía del amparo no era idónea para determinar si correspondía la anulación de los actos impugnados, es oportuno analizar si los recurrentes en verdad ostentaban legitimación.

(1) Marco del problema Como he dicho, el artículo 48 de la Constitución Política establece una legitimación universal, y esto queda reflejado en el artículo 33 de la LJC que señala que “cualquier persona podrtoda perso Pero, claro, esto es desde la lógica de que, si se inte Sin embargo, en el presente amparo estamos ante un caso atípico, porque los recurrentes alegan tener legitimacióimpugnan unos actos administrativos que no recaen sobre ellos, sino sobre un inmueble que es propiedad de una empresa que pertenece al mismo grupo empresarial dueño del periódico para el que trabajan.

Dic Entonces, aunque, debido a esas previsio “…tratándose de ataques indirectos a la libertad de expresión y pre[33][34][35][36] Entonces, la cla[37][38][39] (2) Sobre el alegato que solo tendrían legitimación ante la Sala Los recurrentes no solo sostienen que tienen legitimación para venir en amparo, sino que incluso llegan a afirmar que únicamente aquí, ante la Sala, tienen legitimación, porque en la jurisdicción ordinaria solo podrían ser coadyuvantes y la libertad de expresión, que es la que les interesa que se les proteja, no podría ser garantizada:

“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (ibid., p. 2; el destacado no es del original).

Sobre estas aseveraciones, a mi juicio, pueden surgir dos reparos. El primero, como ya se ha visto, que parecen desconocer que en la jurisdicción contencioso-administrativa los recurrentes sí tendrían una legitimación aún más amplia, porque a tenor del artículo 10.1 del CPCA no solo podrían alegar un derecho subjetivo sino un interés legítimo. El segundo, que dejan de lado que la Sala no es la única que puede proteger los derechos fundamentales. Decir lo contrario, entender que la Sala es la única instancia para garantizar esos derechos, sería tanto como sostener que la jurisdicción ordinaria solo protege derechos patrimoniales y legales. En el fondo sería afirmar que la Sala Constitucional tiene el monopolio de la protección de los derechos fundamentales, cuando lo cierto es que tiene solo el monopolio de la protección de los derechos fundamentales mediante el recurso de amparo. Paso ahora a explicar esto que he dicho en apretada síntesis.

Los derechos fundamentales no fueron reconocidos al crearse la Sala Constitucional, sino que esta, al conocer del recurso de amparo, ha hecho que su garantía se pueda dar con gran eficacia y prontitud. ¿Qué otras vías jurisdiccionales hay para proteger derechos fundamentales? Las vías ordinarias, previstas en los artículos 153 y 49 de la Constitución Política, ya citados. Por cierto, estimo que no sin motivo el Constituyente quiso que esa norma, junto con el artículo 48 –dedicado al recurso de amparo y al hábeas corpus– culminara el título IV, denominado “Garantías Individuales”, como para subrayar que ese título no solo establece los derechos fundamentales sustantivos sino los mecanismos para protegerlos jurisdiccionalmente.

La Sala protege los derechos fundamentales (con excepción de la libertad e integridad personales, que conoce en el hábeas corpus) mediante el recurso de amparo, que es una vía expedita y eficaz; y solo la Sala tiene competencia para conocer de ese recurso previsto en el artículo 48 de la Constitución Política. Pero, desde luego no es la única sede donde se protegen los derechos fundamentales. Si se dijera que el juez ordinario no protege los derechos fundamentales, estaríamos afirmando que este únicamente aplica la ley y los reglamentos. Por el contrario, el juez ordinario es de los primeros llamados a tutelar y hacer valer los derechos fundamentales de las personas. Por lo demás, la Sala misma a través de su jurisprudencia y, muchas veces a la vista de reformas legales que prevén otros cauces, ha ido delegando en otros órganos el conocimiento de asuntos que antes solo se conocían mediante el recurso de amparo. Por eso he dicho que la Sala no tiene el “monopolio” en la protección de derechos fundamentales.

Además de que tenían legitimación para ser demandantes, alegando la violación de derechos subjetivos e intereses legítimos, también podrían haber pedido la correspondiente restitución e indemnización. Todo a tenor del artículo 10 del CPCA ya citado.

No era necesario que la empresa como tal interpusiera una demanda en la vía contencioso-administrativa. Ellos mismos pudieron haber acudido a esa vía para proteger la libertad de expresión aduciendo, como lo hacen acá, que los actos administrativos son arbitrarios, que son la materialización de una desviación de poder, y suponen una lesión a esa libertad. Según me parece, eso justamente es lo que hace que en el supuesto de que la Sala hubiese declarado sin lugar el presente recurso de amparo, la admisibilidad de una petición interpuesta por los recurrentes ante la Comisión Interamericana de Derechos Humanos, con miras a que el asunto fuese llevado luego a la Corte IDH, habría topado con un serio obstáculo, pues no se habían agotado los re y tampoco se habría podido invocar el artículo 46.2 de esa Convención. Lamentablemente, el análisis sobre este interesante tema excede el objeto del presente voto salvado.

Ahora bien, dicho esto: que los recurrentes tendrían legitimación para acudir a la vía contencioso-administrativa, sin que la sociedad para la que trabajan lo hubiese hecho; y que podrían ser demandantes, no simples coadyuvantes; y que en esa vía se les protegería no solo derechos subjetivos (en este caso, la libertad de ex[40] (3) Alegatos de los recurrentes sobre la causa de la legitimación Los recurrentes defienden que hay una vinculación entre el objeto impugnado (la orden sanitaria y el oficio conexo) y el objeto que buscan proteger (su libertad de expresión). Esto, pese a que esos actos recaen sobre un inmueble que no es del periódico ni se dedica a nada que haga relación al giro periodístico.

¿Pero en qué fundamentan ellos esa vinculación? En que los actos están motivados, no fo.

“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid., p. 1).

Los recurrentes aducen que las actuaciones lesivas por parte del Nombre138 Nombre01 se dan en dos direcciones: poner en duda la solidez financiera Nombre03 y el cierre del Parque[41] “Vale la pena señalar que ninguna autoridad financiera ha expresado las mismas dudas, Grupo Nación mantiene la clasificación “A” y los activos de la empresa duplican sus pasivos. Los estados financieros son públicos, porque Grupo Nación está inscrito en bolsa, y en ellos consta la reserva de los recursos necesarios para cancelar el próximo vencimiento” (ibid., p. 5).

Recogen unas manifestaciones del señor Nombre138 en una rueda de prensa:

“?ibid., p. 5).

Se refieren al hecho de que el señor Nombre138 instara a la Caja Costarricense de Seguro Social a solicitar información a la Nombre02 sobre la capacidad de pago del Grupo Nación:

“Como queda claro, el espectáculo no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar nuestra libertad de expresión porque ?la práctica habitual de inversionistas institucionales' es consultar directamente al emisor y valerse de la información publicada por mandato de ley.

Nunc[42][43]ibid., p. 6).

Acusan la ilegitimidad de dichas manifestaciones a la luz de sentencias de la Corte IDH y, en concreto, aducen:

“En nuestro caso, como es público y notorio, además del constante uso de la palabra ?canalla', una injuria para deslegitimar, amedre” (ibid., p. 6).

En la argumentación, todo lo anterior parece tener una finalidad de ofrecer el contexto para mostrar la segunda vertiente de actuaciones que estiman lesiva: el cierre del Parque Viva, realizado mediante los actos impugnados.

“En las act[44][45]Estos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino que, además, al medio de información en que laboramos y, con ello, lesionan nuestro derecho a informar. Este es el verdadero fin que persiguen los actos administrativos frente a los cuales pido amparo” (ibid., p. 7; el destacado no es del original).

En el mismo sentido, agregan:

Si algo celebra la comunidad es que la desviación de poder del gobierno vertió luz sobre un problema de larga data que no se resuelve con los actos administrativos arbitrarios señalados en este recurso. La ineficacia de esos actos desvirtúa su pretendido fin público y evidencia que el único fin es afectar las finanzas Nombre03 en represalia por el libre ejercicio del periodismo de nosotros los recurrentes en intentarnos silenciarnos a futuro, como prometió el Presidente” (ibid., p. 13; el destacado no es del original).

Luego añaden un pasaje que va en la misma línea que los recién citados:

“La legalidad de las actuaciones descrita debe ser discutida, por quien tenga legitimación para hacerlo, en la jurisdicción apropiada, pero junto a la promesa de campaña del Nombre04, las arbitrariedades apuntadas no dejan duda sobre el propósito persecutorio contra el periódico en que laboramos y su carácter de represalia, con desviación de poder, contra la línea informativa y editorial con grave lesión del derecho a la libertad de expresión. Por supuesto, la presión ejercida sobre las finanzas de la empresa pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometan” (ibid., p. 14; el destacado no es del original).

En un escrito posterior al informe dado por el Nombre138 Nombre01, en el mismo sentido, los recurrentes afirman:

“?A Grupo es que el señor Nombre138 y la señora Ministra de Salud pretextan el cumplimiento del deber para materializar el propósito de silenciarnos expresado en la campana electoral y debidamente documentado” (escrito de los recurrentes del 17 de agosto, p. 9; el destacado no es del original).

De previo, se habían referido al origen de esa relación entre periódico La Nación y Parque Viva, que merece ser citado de nuevo:

“Parque Viva es una de esas estructuras [que nos permiten ejercer el periodismo independiente], en el caso de Grup[46], como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: “…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela” (escrito de interposición, p. 4; el destacado no es del original).

Como se puede observar, en este párrafo se habla de la vinculación, pero no se acredita la dependencia: solo se refiere a la justificación de la decisión de incursionar en otro giro comercial.

Los recurrentes no muestran datos que permitan observar desde cuándo y en qué porcentaje se da la aducida dependencia. Es decir, no aportan pruebas que hagan establecer una relación directa e inequívoca que permita afirmar, sin margen de duda, que la sostenibilidad del periódico La Nación depende del Parque Viva.

Por cierto, solo hacen una referencia analítica a los estados financieros del Grupo Nación, al afirmar la capacidad de pago, y explican que los activos son muy superiores a los pasivos, cosa que en efecto se refleja así en el informe de estados financieros consolidados auditados del 2020-2021. En el 2020: Los activos 68.883.898, los pasivos 27.661.566. En el 2021: los activos 68.555.759 y los pasivos 28.288.573.

En un escrito posterior, sí recogen las palabras del director ejecutivo Nombre03 en las que explica cuáles son las expectativas sobre el Parque Viva:

“Vale señalar que al día siguiente de la conferencia sobre los bonos, el director ejecutivo de Grupo Nación, Nombre37, dio amplias explicaciones públicas y menciono el papel de Parque Viva en el flujo de la empresa. Un día después, el gobierno cerró precipitadamente Parque Viva.

Nombre150 declaro, entre otras cosas: ?Se habla de que La Nación solo arrastra pérdidas. Es muy importante hacer la distinción entre perdida contable y generación de flujo de caja. Nosotros estamos arrastrando perdidas contables, es cierto, pero estamos generando flujo de caja. Esto quiere decir que, entre la operación y las inversiones financieras, estamos generando flujo de caja suficiente para pagar la deuda, para pagar todos los intereses, para pagar todas las inversiones y, además, estamos ahorrando para hacerle frente a los vencimientos del futuro. Eso se puede ver en nuestros estados financieros, que son públicos' afirmó Nombre150 para añadir: ?Parque Viva ha estado parado por dos años (por la pandemia). Entonces, los números que hemos estado mostrando, donde el flujo de caja ha sido positivo, son con Parque Viva cerrado. Desde marzo de 2022, Parque Viva está funcionando, va a empezar a generar flujo de caja y va a empezar a aportar a ese flujo que ya estábamos generando. Entonces, los números de este año se van a ver mucho mejor que los del año pasado. Creemos que esa va a ser la tendencia de aquí al 2025'. (Ver prueba adjunta). Al día siguiente, Parque Viva quedo cerrado. (Ver publicación ?Nombre139 ataca a La Nación con datos distorsionados')” (Escrito de los recurrentes del 17 de agosto, p. 9).

Interesa entonces ahora observar si la sentencia fundamenta adecuadamente esa dependencia, que sería la raíz de la legitimación que les permite a los recurrentes interponer válidamente un amparo para que se anulen unos actos que no recaen sobre ellos.

(4) Consideraciones de la sentencia sobre la dependencia En realidad, la sentencia no se ocupa propiamente del problema de la legitimación. Da por sentada tal dependencia con argumentos que solo apuntan a explicar varios fenómenos que no cuestiono y que de suyo son hechos públicos y notorios, sin real incidencia en la comprobación de esa dependencia en el caso concreto En primer lugar, el fenómeno de la migración de lectores de prensa al formato digital:

“los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales” (sentencia, considerando VIII).

Eso es algo inobjetable, pero es útil únicamente para mostrar el contexto en el que se desenvuelve el periódico La Nación y todos los medios de prensa.

De segu[47] “En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir” (ibid.).

Se reconoce que las acciones han ido encaminadas en varias direcciones: innovar y buscar nuevos formatos, utilizar otros mecanismos de ingresos que permitan financiar al periodismo. Es dentro de este último tipo de acción que estaría la inversión hecha por el Grupo Nación al adquirir y poner en marcha el Parque Viva, pues entienden que “muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir”.

Hasta aquí lo único que se puede tener claro es que la unidad de negocio original Nombre03 (el periódico) necesita de la nueva unidad de negocio (Parque Viva). Pero, tanto como los recurrentes, la sentencia no se ocupa de mostrar en qué medida y cómo se da esa dependencia.

Después la sentencia señala:

“A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v. gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura)” (ibid.).

Como se puede observar, eso solo es un elenco de actividades que han llevado a cabo distintos medios de prensa o revistas impresas para innovar la forma de difundir ideas o noticias, en este nuevo y desafiante contexto. Pero ninguna de esas actividades hace relación a la diversificación de inversiones del grupo dueño de la empresa de comunicación con el fin de obtener recursos financieros para sostener el medio de prensa. En el presente caso, en cambio, los recurrentes están señalando que la unidad de negocio original Nombre03 (el periódico) depende para su subsistencia de otra unidad de negocio que nada tiene que ver con el ejercicio del periodismo o la comunicación (el Parque Viva).

De inmediato, la sentencia incursiona en el fenómeno de los holdings o conglomerados de empresas en los siguientes términos:

“Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional” (ibid.).

Se entra entonces en un ámbito más cercano al del caso que nos ocupa, pues se trata de grupos empresariales cuya unidad de negocio original es el medio de comunicación, y que diversifican la inversión adquiriendo “empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo”. El Grupo Nación se enmarca en ese fenómeno. Pues bien, eso no está en tela de juicio. Es un hecho público y notorio, pero no refleja la real dependencia. Una cosa es que ese o cualquier grupo desee diversificar su inversión y otra distinta que al hacerlo quiera mantener una unidad de negocio deficitaria de suyo. En otros términos, los holdings no tienen como finalidad propia mantener en su seno una unidad de negocio financieramente inviable, sino aumentar los ingresos en diversas actividades y minimizar los riesgos que supone invertir todo el capital en una sola unidad de negocio.

Luego, la sentencia recoge ejemplos de holdings que tienen inversiones en el campo de los medios de comunicación. Inicia con el siguiente:

“Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por Nombre104, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet” (ibid.).

Es un buen ejemplo, aunque en dirección inversa: es el dueño de una empresa no periodística que adquiere dos empresas periodísticas. Pero no parece que el señor Nombre179 pueda invocar la lesión a la libertad de expresión en caso de que sus respectivos equipos deportivos sean sancionados con cuantiosas multas. De todas maneras, recordemos que aquí estamos en primer término analizando el tema de la dependencia financiera, que sería condición para determinar la vinculación alegada entre actos administrativos y lesión a la libertad de expresión. Entonces, vale solo decir que ese ejemplo únicamente sirve para señalar que, en efecto, hoy como nunca la actividad periodística en formato escrito es menos rentable que la de otras unidades de negocio, no importa el giro, y que estas otras pueden servir de apoyo financiero, pues el dueño de ambas es el mismo y puede querer subvencionar la que no es rentable.

La sentencia continúa:

“Igualmente, se tiene que Nombre105, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Nombre174 figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur” (ibid.).

De nuevo, el ejemplo es más cercano, pero, también de nuevo es inverso al caso que nos ocupa: el grupo empresarial que de por sí tenía diversificada su inversión en distintas actividades, aunque ninguna en el campo de la comunicación, según se refiere en este pasaje, adquiere “periódicos (…) los cuales sufrían también una baja rentabilidad”. Como el ejemplo es similar, los comentarios también lo serían. Corresponde entonces transcribir lo que la sentencia recoge de seguido:

“Asimismo, se cuenta con el caso de Nombre106 (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando” (ibid.).

Efectivamente, esto significa que el dueño de una unidad de negocio ajena a giro de los medios de comunicación invierte en uno de estos, pero no lo incorpora a su original esquema financiero. La verdad es que esa integración no se sabe si también se dio con el señor Nombre179 o con el señor Nombre180, y de suyo no tiene relevancia. Lo importante es que se trata de ejemplos en los que la viabilidad financiera de medios de comunicación se da gracias a la adquisición de estos por parte de dueños de empresas con otros giros comerciales más rentables.

En el presente caso es un grupo cuya unidad de negocio original es un periódico, del que se afirma que no es de suyo rentable, y que incursiona en otro giro comercial: adquiere otra unidad de negocio cuya actividad no se desarrolla en el campo de la comunicación. Así lo señala la sentencia:

“En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Dirección03 y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet” (ibid.).

Eso, como he dicho, es un hecho público y notorio, y por lo demás se trata de una decisión financiera absolutamente legítima.

La sentencia agrega:

“Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso Nombre03 S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho” (ibid.).

Coincido en que es entendible, y se tiene por cierto que esto buscaba el Grupo Nación al incursionar en este nuevo giro comercial. Es decir, la adquisición del Parque Viva va en esa dirección: diversificar la inversión para que el grupo como tal tuviera réditos suficientes. Incluso concedo que tal diversificación pretendía hacer viable financieramente la existencia del periódico mismo. Pero la sentencia no se ocupa de mostrar la dependencia financiera en términos reales, que permitan constatar lo que dicen los recurrentes, quienes –como se ha visto– tampoco lo acreditan.

De inmediato la sentencia retoma lo que venía diciendo y añade:

“Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión” (ibid.).

De nuevo, no cabe sin mayor dificultad admitir que la diversificación de inversiones permite compensar con las ganancias de una unidad de negocio las pérdidas de otro; pero aquí, en el presente caso, antes de entrar a argumentar sobre la arbitrariedad de los actos impugnados, es preciso probar, demostrar, aclarar que en efecto el periódico La Nación depende financieramente del Parque Viva. Y, luego de ese análisis exhaustivo, tengo para mí, que la sentencia omite la referencia a este punto tan importante, que es la clave de todo el arco argumentativo de los recurrentes, sin la cual no tienen legitimación.

Este considerando de la sentencia termina con un párrafo un tanto largo, pero que por su importancia y consistencia merece ser transcrito también:

“Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial.

De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían (sic) llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado.

En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa.

Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas” (ibid.; el destacado no es del original).

Dicho en otros términos: cada unidad de negocio debe cumplir con el ordenamiento jurídico y la Administración puede imponer sanciones cuando estima que no es así; pero estas deben estar debidamente fundamentadas. Para determinar si lo están, es preciso examinar la relación entre los elementos materiales objetivos (motivo-contenido) y su congruencia con el interés público tutelado.

Justamente ese examen es lo que se espera que la Sala realice en los considerandos posteriores, pues como bien se dice en ese pasaje: “No todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas”.

Aquí en este epígrafe del voto salvado se está haciendo un análisis para confirmar si se da el presupuesto procesal denominado legitimación, bajo el entendido de que la dependencia del periódico, no el simple ligamen financiero, es condición sin la cual no puede afirmarse que hay una vinculación jurídica entre los actos impugnados y la lesión acusada. Esto es, que tal vinculación es el requisito para ostentar dicha legitimación. Pero ya en el análisis por el fondo, como bien lo apunta ese pasaje de la sentencia, debe concurrir otra condición para que se declare la lesión: que el acto sea arbitrario. Sin embargo, como he mostrado en el anterior epígrafe, la complejidad que esos actos encierran hace concluir que su conocimiento no es propio de un recurso de amparo, que por naturaleza es sumario.

Así termina ese considerando en el que se echa en falta precisamente el análisis y la constatación de la dependencia aludida. Solo se puede concluir que el Grupo Nación amplió su gama de negocios, pero no se demuestra que el funcionamiento del periódico donde laboran los recurrentes dependa financieramente del Parque Viva y que, por lo tanto, haya mérito para entrar a examinar si la libertad de expresión de ellos se ha visto de algún modo afectada por actos que recaen en esa otra unidad de negocio.

(5) Los estados financieros y la dependencia aludida Ahora bien, en el escrito de interposición aparece un enlace a los estados financieros del Grupo Nación. Me propongo hacer un breve análisis de estos de cara a la determinación de la dependencia alegada.

El mencionado enlace lleva al sitio Web donde aparecen los estados financieros consolidados auditados, los informes de la Presidencia, y los informes a los accionistas. Este último recoge también los dos anteriores. También constan los estados financieros trimestrales.

Respecto del último periodo que cierra en diciembre de 2021, interesa especialmente el cuadro titulado “La Nación, S. A. y subsidiarias. Activos, pasivos y resultados por segmentos al 31 de diciembre de 2020 y por el período terminado en esa fecha (expresados en miles de colones costarricenses)”, y el cuadro similar, pero al 31 de diciembre de 2021, porque reflejan en diversas columnas esos rubros por unidad de negocio. De previo a esos cuadros aparece la siguiente información:

“Al 31 de diciembre de 2021 y 2020 se presenta la información de los activos y pasivos, así como el desempeño financiero de los principales segmentos de operación con que cuenta el Grupo, que comprenden las actividades desarrolladas por: a) Medios - Incluye los ingresos provenientes de los diarios La Nación, La Teja y el semanario El Financiero, así como ingresos de impresión a terceros, producción y distribución de papeles y cartulinas, b) Digital - Comprende los resultados provenientes de los productos El empleo y Yuplón, c) Parque Viva - Negocio que gira en torno a la administración de recintos y creación de plataformas de entretenimiento, d) Portafolio, considera las inversiones a valor razonable con cambios en otro resultado integral que se mantienen en el exterior a través de su subsidiaria Desarrollo Los Olivos, S.A. e inversiones en instrumentos financieros locales e inversiones en asociadas y otras participaciones”.

En esos cuadros se indica lo siguiente. En el 2020, las pérdidas consolidadas de Medios, al que –según el texto citado– pertenecen los diarios La Nación y La Teja y el semanario El Financiero, fueron ¢ (1.772.204); y las pérdidas consolidadas de Parque Viva fueron ¢ (2.365.096). En el 2021 las pérdidas consolidadas de Medios fueron ¢ (1.969.114) y las de Parque Viva ¢ (51.802).

De esa información solo es posible concluir:

1. 1El periódico La Nación y el Parque Viva, pertenecen a Grupo Nación (hecho que, por lo demás, es público y notorio).
2. 2La información que aparece en el si
3. 3Los cuadros que aparecen en el Informe a Accionistas sobre los activos, pasivos y resultados por segmentos al 31– tuvieron pérdidas. Y en términos globales (ambos años), Medios ¢ (3.844.599) tuvo pérdidas mayores que las de Parque Viva ¢ (2.416.898).

Pero de eso no se puede inferir, sin más información aportada por la parte recurrente, que el periódico dependa financieramente del Parque Viva; sobre todo porque este último es una unidad de ne Quizá, los resultados observados en los últimos años podrían originarse en las inversiones y el endeudami[48][49][50] Ahora bien, aunque no se podría decir q[51] Por otro lado En realidad, lo único que los recurrentes aportaron fue el enlace donde aparece la información, sin presentar la menor explicación contable que sustentara la afirmación de la dependencia.

En síntesis, la información que consta en el sitio Web ni alude ni es suficiente para tener por cierta Finalmente, debo hacer otra observaaquí no está en duda el ligamen financiero entre las dos unidades de negocio, pues ambas pertenecen al mismo Grupo Nación, sino la dependencia financiera del periódico respecto del Parque Viva y, como se ha visto, eso no fue probado por l[52][53][54] Se da por supuesta, siendo que es la condición para determinar si hay una vinculación jurídica entre actos impugnados y libertad presuntamente violada.

Además, a propósito de las palabras del Nombre138 Nombre01, ya no en l[55][56] “Pregunta el informe del señor Presidente: ?¿Como es posible, magistradas y magistrados, que Grupo Nación venga a decir que cifran todas sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y que clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad es un ataque directo a la libertad de prensa? Eso solo demuestra que la salud financiera de La Nación no es como la quieren hacer ver y que dependen de este lugar para subsistir financieramente'.

Nada de eso lo ha dicho Grupo Nación. Los recurrentes somos periodistas de Grupo Nación (…), somos profesionales a quienes se pretende limitar la libertad de expresión mediante acciones arbitrarias contra las ?estructuras' que sustentan nuestro libre ejercicio del periodismo, según lo prometió el mandatario. Por otra parte, no hemos hablado de un ?ataque directo' a la libertad de expresión, sino de uno indirecto, igualmente prohibido por el artículo 13.3 de la Convención y la jurisprudencia de la Corte Interamericana. Jamás dijimos que el pago de nuestros salaries dependa de Parque Viva, como también se afirma en el comunicado de prensa de la Presidencia. Para constatar todo lo dicho. basta leer el recurso, pero conviene señalar la insistencia en la supuesta demostración de que ?dependen de este lugar para subsistir financieramente'. ¡La infundada obsesión con las finanzas de la empresa se extiende hasta la interpretación de lo que no hemos dicho! Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña. Mas claro, imposible” (escrito de los recurrentes del 17 de agosto, p. 12; el destacado no es del original).

Este pasaje llama a la reflexión. Por un lado, como bien lo apuntan los recurrentes, el señor Nombre138 confunde “Grupo Nación” con “periodistas de La Nación”. Por otro, el mandatario se extraña que ese Grupo Nación cifre sus esperanzas en el Parque Viva. Agrega que eso solo demuestra que la salud de La Nación (aquí no se sabe si se refiere al periódico o al grupo) no es buena y que, en efecto, según lo dicho por los recurrentes (que él confunde con el grupo) confirma que dependen del Parque Viva para subsistir financieramente (tanto el grupo como, se podría decir, el periódico). Con esas palabras no es que él dice que La Nación depende del Parque Viva, sino que dice que ellos afirman que La Nación (el grupo o el periódico) depende del Parque Viva.

Llegados a este punto, se resolvería el problema de la legitimación: los recurrentes afirman que el Periódico La Nación depende del Parque Viva y el recurrido lo acepta, pues entiende que esto es una confirmación de que el grupo (o el periódico) carece de salud financiera. (Esto último justificaría su proceder, su preocupación manifestada sobre los bonos; pero, para efectos del análisis por el fondo del presente amparo, es un elemento que claramente le desfavorece, pues sería la confesión de que la orden tenía por fin dejar sin sustento financiero al periódico). De todas formas, lo que aquí interesa subrayar es que el señor presidente, aunque no afirma que exista esa dependencia financiera (ya sea del periódico mismo o del grupo) respecto del Parque Viva, tampoco la niega.

Pero resulta que los recurrentes contestan que no es cierto que ellos, ni el Grupo Nación, hayan dicho que La Nación, la empresa en la que ejercen el periodismo, dependa de Parque Viva. En cambio, dicen, si eso fuera así, si sí dependieran, si fuera verdad lo que dice el mandatario, el cierre del Parque sí que consumaría la lesión a la libertad de expresión:

“Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña” (ibid.).

¿Entonces? ¿Dependen o no dependen?

En todo caso, estimo que la falta de acreditación de la dependencia financiera del periódico (en el que los recurrentes laboran) respecto del Parque Viva (inmueble sobre el que recayeron los actos impugnados y que es propiedad de otra unidad de negocio) tiene un efecto jurídico procesal: la ausencia de legitimación para acudir ante la Sala a interponer válidamente un recurso de amparo por una supuesta lesión a la libertad de expresión derivada del cierre del Parque Viva. Esto es, al no acreditarse esa dependencia, tampoco se dieron las condiciones para que la Sala examinara por el fondo la existencia de un nexo entre el cierre del recinto y el impacto concreto sobre el medio de comunicación y su funcionamiento ordinario y, concretamente, la libertad de expresión de los recurrentes.

Debo añadir que incluso en el caso de que se hubiese acreditado la legitimación, subsiste la falta de idoneidad del recurso de amparo para conocer de los actos impugnados.

Además, es oportuno subrayar que este no es un análisis sobre el fondo del asunto, sino sobre los presupuestos procesales, cuya existencia no es prescindible sino co

V. Razones diferentes

A. Introducción Como se recordará, los recurrentes piden la anulación de los actos impugnados que recaen sobre el Parque Viva, pues los acusan de arbitrarios y de constituir una vía indirecta para lesionar su libertad de expresión, porque dejan sin sustento económico, y por eso sin verdadera independencia, al medio en el que laboran.

Como se pudo apreciar, mi voto salvado va en dos direcciones. Por un lado, muestro que los recurrentes no tienen legitimación para alegar esa presunta lesión por medios indirectos, puesto que no se constata la vincula[57] La mayoría de la Sala no se refiere a esos aspectos, sino que admite la vinculación entre los actos impugnados y la lesión presuntamente provocada por ellos, tal como lo alegan los recurrentes, y declara con lugar el recurso bajo el entendido de que se violó el artículo 13. 3 de la CADH.

Yo me decanté por declarar con lugar el recurso, en lo que se refiere a la lesión a la libertad de expresión, pero por razones diferentes de las de la mayoría. Me propongo ahora exponerlas.

En primer término, haré referencia al principio procesal que hace posible entrar a conocer de esta lesión y a los motivos por los que no hay obstáculo jurídico alguno para hacerlo. Luego explicaré por qué considero que no corresponde declarar la lesión de la libertad de expresión por vías o medios indirectos, es decir, la violación del artículo 13.3 de la CADH. Después haré unos comentarios sobre toda la jurisprudencia de la Corte IDH y de la Sala Constitucional respecto de esta norma, que es invocada en el expediente, y que más bien parecen confirmar mi tesis. Posteriormente, aludiré a unos escenarios que permiten hacer unas reflexiones sobre el tema en discusión. Finalmente, mostraré por qué, a mi juicio, sí se configuró la lesión a la libertad de expresión de los recurrentes.

Posibilidad de conocer de la lesión invocada A lo largo del voto salvado he subrayado que la Sala Constitucional no es competente para conocer del objeto impugnado (la orden sanitaria y el oficio conexo) y que los recurrentes no ostentan la legitimación que dicen tener. De manera que comprendo la extrañeza que podría ocasionar el hecho de que, a la vez, sostenga que sí corresponde entrar a conocer por el fondo el asunto en lo relativo a la libertad de expresión.

El aparente dilema desaparece cuando se advierte en qué sentido y bajo qué supuesto entro a conocer por el fondo este recurso de amparo.

En efecto, lo que afirmo es que es posible entrar a conocer si se ha configurado la lesión a la libertad de expresión, pero no la que aducen los recurrentes; y es posible entrar a conocer de un objeto impugnable (acto o conducta), aunque no haya sido atacado expresa sino tácitamente por los recurrentes; y que tal objeto sería la causa de esa lesión. Como ese objeto impugnado incide directamente en los recurrentes, aunque no haya sido expresamente alegado así, es posible conocer de este. Por eso, ellos tienen legitimación y se cumple con ese presupuesto procesal. Además, como se verá, por sus características, ese objeto y esa lesión son susceptibles de ser conocidos en un proceso sumario como el amparo.

¿Cabe hacer esa distinción para entrar a conocer lo no alegado? ¿Qué me permite hacer eso? El principio iura novit curia, que se traduce así: “el juez conoce el derecho”. Este principio está ligado con el aforismo da mihi facta, dabo tibi ius que, en términos sencillos, se suele traducir así: deme Usted los hechos, que yo le daré el derecho. En otras palabras: explíqueme qué paso y yo le diré quién tiene razón desde el punto de vista jurídico.

Se trata del principio clásico por el cual el juez está habilitado para tomar en consideración los hechos y aplicar el derecho, según estime que corresponde hacerlo, sin atenerse de modo necesario a las argumentaciones que le presentan las partes.

El Diccionario panhispánico del español jurídico de la Real Academia de Lengua Española define ese principio así:

?El tribunal conoce el derecho'. Principio que permite a un órgano judicial aplicar normas distintas a las invocadas por las partes, previa audiencia de las mismas.

Y el mismo diccionario, de inmediato transcribe una sentencia del Tribunal Supremo de España que ilustra muy bien el concepto:

“El principio iura novit curia permite al Juez fundar el fallo en los preceptos legales o normas jurídicas que sean de pertinente aplicación al caso, aunque los litigantes no las hubieren invocado, y que el juzgador solo esté vinculado por la esencia y sustancia de lo pedido y discutido en el pleito, no por la literalidad de las concretas pretensiones ejercitadas, tal y como hayan sido formuladas por los litigantes, de forma que no existirá incongruencia extra petitum cuando el Juez o Tribunal decida o se pronuncie sobre una de ellas que, aun cuando no fuera formal y expresamente ejercitada, estuviera implícita o fuera consecuencia imprescindible o necesaria de los pedimentos articulados o de la cuestión principal debatida en el proceso” (STS, 3.ª, 16-VI-2015, rec. 3739/2013; el destacado no es del original).

Reitero, este principio permite al juez aplicar el Derecho según estime que procede, pero, eso sí, sin modificar los hechos. Claro está, el juez le dará el valor a estos según la relevancia que considere razonable; pero esto también pasa cuando no se invoca este principio. Es decir, el juez al valorar los hechos –los sopesa– y determina qué es lo que piensa que es relevante. De manera que, en atención a ese principio, lo significativo no es lo que pretende los recurrentes sino lo que narran las partes.

La Sala ha aplicado ese principio desde sus inicios, tanto en procesos de control de constitucionalidad como en procesos de garantías jurisdiccionales de derechos fundamentales. He aquí algunos ejemplos referidos a estos últimos, concretamente a recursos de amparo:

“II.- El silencio del Ministro de Obras Públicas y Transportes en contestar las reiteradas peticiones y quejas de la recurrente y otros interesados constituye por si misma una violación de su derecho de petición consagrado en el artículo 30 de la Constitución Política. Aunque esa disposición no fue expresamente invocada en el recurso, sí lo fue el silencio del Ministro, el cual implica la indicada violación, que puede ser declarada por la Sala en virtud del principio "iura novit curia" y debe serlo en virtud de que los derechos y libertades fundamentales son de orden público, por definición” (sentencia 1989-73).

En el mismo sentido afirmó:

“En aplicación de este imperativo, y del principio "iura novit curia" el juez constitucional, está obligado a analizar cualquier aspecto que, aún si no ha sido alegado, pudiera resultar en una violación a un derecho constitucional” (sentencia 1991-1129).

En otra sentencia señaló que una lesión puede ser declarada, aunque no haya sido expresamente aducida en el recurso:

“El silencio del Banco Nacional al no contestar las reiteradas peticiones y quejas de los recurrentes en forma específica, constituye por sí misma una violación de su derecho de petición consagrado en el artículo 27 de la Constitución Política. Aunque esa disposición no fuere expresamente invocada en el recurso, sí lo fue el silencio del banco, el cual implica la indicada violación, que puede ser declarada por la Sala en virtu1998-5839).

En la misma línea destacó que debe tenerse en cuenta la lesión que tácitamente alegó el recurrente:

“No habiendo lesión respecto de los derechos que el recurrente alega como violados, esta Sala, con fundamento en el principio iura novit curia, advierte que los hechos ponen en evidencia la lesión de un derecho que el recurrente, tácitamente, alega como lesionado: el derecho sentencia 2013-9403).

Si [58] Inexistencia de la violación del artículo 13.3 de la CADH En primer término, deseo exponer por qué me parece que no se dio una violación de la libertad de expresión a través de medios indirectos. Para ello, antes de valorar el marco fáctico, haré un brevísimo análisis exegéti[59] Brevísimo análisis exegético del artículo 13.3 de la CADH Es oportuno transcribir de nuevo esa norma del Pacto de San José o CADH:

Artículo 13. (…) 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones (el destacado no es del original).

Como se puede observar, este inciso tiene tres partes claramente definidas: la primera establece la prohibición de restringir, por vías o medios indirectos, la libertad de expresión; la segunda contiene los ejemplos de tales vías y la frase que suprime la taxatividad de tales ejemplos (o por cualesquiera otros); y la tercera recoge la característica esencial de esos medios, que hace relación a su finalidad (impedir la comunicación y la circulación de ideas y opiniones).

Además, aunque ciertamente el elenco de ejemplos vías o medios indirectos que recoge la norma tiene un carácter enunciativo y no taxativo, debe tenerse presente que esos “cualesquiera otros medios” deben seguir la lógica de los ejemplos mencionados, que tienen un común denominador: se trata conductas que recaen sobre la actividad comunicativa propiamente dicha. Incluso la tercera parte de la norma confirma esto, pues precisa que lo que hace ilegítimos a esas vías o medios indirectos es que están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”.

Por otro lado, se habla de vías indirectas para lesiones directas, no de lesiones indirectas por vías indirectas. Eso es particularmente importante.

Consecuencia sustantiva de la no acreditación de la dependencia Como se examinó, los recurrentes no acreditan la dependencia financiera del periódico La Nación respecto del Parque Viva. Esto tiene un efecto procesal, pues al no haberse demostrado el vínculo entre los actos impugnados –que recaen sobre otra unidad de negocio distinta de aquella en la que laboran– y la presunta lesión a la libertad de expresión de los recurrentes, estos carecen de legitimación.

Sin embargo, en el presente caso, eso también tiene una consecuencia en la resolución sobre el fondo del asunto. No cabe entender que unos actos que recaen sobre un inmueble que pertenece a los mismos dueños del periódico sea un medio indirecto de lesionar la libertad de los recurrentes, pues, al no haber dependencia financiera, tampoco puede afirmarse que esos actos impiden “la comunicación y la circulación de ideas y opiniones” (artículo 13.3 de la CADH). Esto último incluso bajo el supuesto de que incidir en la situación financiera del periódico supone lesionar la libertad de expresión.

Inexistencia de la violación, aunque hubiese legitimación He dicho que no hay legitimación porque no se acreditó la dependencia, que constara la vinculación entre el objeto impugnado y la aducida lesión a la libertad de expresión. Pero ¿qué habría pasado si sí se hubiese acreditado? Es decir, ¿basta acreditar la dependencia financiera de un medio de comunicación a otra unidad de negocio de un giro comercial distinto, que pertenece al mismo dueño del periódico, para entender que todo acto presuntamente arbitrario que sufra ese negocio ajeno al ámbito de la comunicación incide en la libertad de expresión de quienes laboran en el periódico?

Este es un tema de gran importancia. Ahora bien, desde el momento en el que estimo que no se acreditó la dependencia, no sería necesario que me ocupara de reflexionar sobre él; pero no quisiera dar pie a confusiones.

La legitimación es un aspecto procesal, relativo a la admisibilidad del recurso (sobre el que el tribunal se puede pronunciar en cualquier momento, no solo en la fase inicial, esto es, puede declararlo sin lugar por falta de este presupuesto procesal: justamente eso es lo que hice en el voto salvado). Ahora bien, para entrar en estas reflexiones, se va a suponer que sí hay dependencia y, por eso, legitimación.

Evidentemente para que se entienda que se dio la lesión de la libertad de expresión por vías indirectas no es suficiente con acreditar la legitimación. Después hay que examinar dos extremos: si hubo afectación de esa libertad y si los actos impugnados fueron arbitrarios.

• a)Sobre la afectación a la libertad de expresión Es público y notorio que el periódico La Nación ha seguido adelante con su labor periodística y no se ha constatado que el cierre del Parque Viva ?en virtud de una orden sanitaria que presumiblemente busca proteger los derechos a la salud, integridad y vida de los vecinos y asistentes a dicho local comercial? haya impactado en el funcionamiento del medio y la labor periodística de los recurrentes. Tampoco se demostró que la afectará en el futuro. Si la orden sanitaria de cierre hubiese recaído sobre la sede del periódico, sería mucho más comprensible entender que había mérito para aplicar el artículo 13.3 de la CADH. Pero en el presente caso, incluso si se hubiera demostrado la dependencia financiera del periódico La Nación respecto del Parque Viva, no se tiene por acreditado que la orden sanitaria tuviera un impacto directo sobre el ejercicio de la libertad de expresión de los recurrentes, es decir, sobre “la comunicación y la circulación de ideas y opiniones”.

En efecto, nótese que el artículo 13.3 de la CADH habla de medios indirectos, pero la lesión debe ser directa. Al menos debe serlo para que sea objeto de un recurso de amparo, pues como se vio oportunamente en el voto salvado (al hablar de los elementos que condicionaban la competencia de la Sala para conocer de un recurso de amparo), hay abundantísima jurisprudencia en el sentido de que la lesión que se pretende proteger por esta vía ha de ser directa.

Dicha norma pone como condición esencial que esos medios o vías indirectas estén “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. De hecho, como se ha apuntado, los ejemplos que el mismo artículo 13.3 de la CADH recoge, de modo enunciativo y no taxativo, se refieren a acciones que inciden en la empresa de comunicación.

Pero esto no lo digo yo solamente. Lo ha dicho la propia jurisprudencia de la Corte IDH y de la Sala Constitucional. En el siguiente apartado se hará referencia al particular con más detalle. Ahora corresponde analizar la otra condición: que los actos sean arbitrarios.

• b)Sobre la arbitrariedad de los actos Si no hay tal afectación a la libertad de expresión, como es público y notorio, entonces sobra examinar si los actos administrativos impugnados que se acusan de arbitrarios constituyen un medio indirecto de lesión de tal libertad.

De manera que no sería necesario continuar con el análisis.

Pero vamos a suponer varias cosas que no están probadas con tal de continuar reflexionando sobre este asunto: Vamos a suponer que hay dependencia financiera de La Nación respecto del Parque Viva y que los actos impugnados impidieron o son una amenaza cierta por la que se impedirá “la comunicación y la circulación de ideas y opiniones”.

Entonces, bajo esos supuestos, correspondería entrar en el examen de la presunta arbitrariedad de los actos impugnados. Es claro que solo habría dos posibilidades: que sean arbitrarios o que no lo sean.

(2) Si los actos no son arbitrarios: consecuencias Si los actos fuesen legítimos (porque se cumplieron todos los requisitos de validez y eficacia), tendrían la misma incidencia en la salud financiera del periódico, pero no habría nada que amparar. Esto es, la libertad de expresión no se habría visto lesionada, pues la incidencia financiera que tendrían los actos impugnados que se declarasen legítimos es un efecto colateral legítimo también, aunque perjudicial para el periódico. Para afirmar esto basta recordar el clásico principio del doble efecto, en virtud del cual se da la no imputabilidad del mal indirecto producido por un acto voluntario directo lícito y proporcionado. Esto, para el caso concreto, se traduce en lo siguiente: si se demostrase que los actos impugnados dictados por la Administración son legítimos (actos voluntarios directos que recaen sobre el Parque Viva), no se puede atribuir responsabilidad alguna a aquella (a la Administración, esto es, al Ministerio de Salud) por los efectos indirectos (aunque fuesen perjudiciales) que recaen sobre el periódico La Nación y, concretamente, sobre sus periodistas.

Entonces, si en la Sala –o en la jurisdicción contencioso-administrativa, que es donde a mi juicio procedía conocer de esos actos– se hubiese declarado que los actos son legítimos y no arbitrarios, materialmente habrían tenido la misma incidencia en la salud financiera del periódico; pero formalmente no se habría configurado ninguna lesión a la libertad expresión, tampoco bajo el supuesto del artículo 13.3 de la CADH. Es decir, los periodistas estarían en la situación vulnerable financieramente en la que, según sus alegatos, padecen; pero esa situación no sería fruto de una conducta lesiva sino legítima de la Administración y, por tanto, no habría lesión amparable de la libertad de expresión.

(1) Si los actos son arbitrarios: consecuencias Si se constata que los actos impugnados son arbitrarios, y todo bajo el supuesto de que hay dependencia financiera y de que hay afectación porque se impide “la comunicación y la circulación de ideas y opiniones”, entonces los actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas.

Sin embargo, como he explicado en el voto salvado –y me parece que quedará aún más claro en el epígraf Pero ¿por qué acabo de señalar que “entonces tales actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas”? Porque, desde mi perspectiva, incluso si los actos fueran arbitrarios no necesariamente se daría una lesión a la libertad d Ahora lo que conviene subrayar es que, como se ha visto, en el presente caso no se dio una afectación a la libertad de expresión en los términos que lo señala el artículo 13.3 de la CADH y que, aunque se hubiese dado, esta solo habría sido amparable si la declaratoria de la arbitrariedad de los actos se hub[60] Es oportuno ahora detenerse en la jurisprudencia invocada, tanto por los recurrentes como por la mayoría de la Sala para sustentar la violación del artículo 13.3 de la CADH.

Consideraciones sobre la jurisprudencia invo[61] Como se sabe, los recurrentes y la mayoría invocan el artículo 13.3 de la CADH para afirmar que una orden sanitaria y su oficio conexo dictados sobre el inmueble del Parque Viva lesionan la libertad de expresión de los periodistas que laboran en el Periódico La Nación ?sea, en otra unidad de negocio distinta al negocio Parque Viva?. Como parte de sus argumentos invocan jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional.

Haré de inmediato unas consideraciones al respecto para mostrar que más bien esas sentencias abonan a mi tesis.

La jurisprudencia de la Desde mi perspectiva, es muy valiosa la jurisprudencia dictada por la Corte IDH que se trae a colación para aducir que en el presente asunto se produjo una infracción del artículo 13.3 de la CADH, pero los casos mencionados no tienen semejanza fáctica con el que se examina en el sub lite. Por eso las rationes en las que se sustentan esas sentencias no calzan ni pueden ser válidamente invocadas. Además, los recurrentes invocan algunos casos resueltos por la Corte IDH que, como se verá, lógicamente la mayoría de la Sala no la incorpora en la sentencia, pues supondría pon[62] En primer término, los recurrentes ?pero no la mayoría de la Sala en la sentencia? citan el caso “Ríos y otros vs. Venezuela”, dictada en un contexto de agresión y amenaza continuada contra periodistas, camarógrafos, fotógrafos y demás trabajadores de los medios de comunicación social. En dicha resolución la Corte IDH desarrolla así el contenido del artículo 13.3 de la CADH:

“340. Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas. La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también “controles... particulares” que produzcan el mismo resultado. Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.

360. En cuanto al propósito perseguido por esos oficios, en el sentido de incidir indirectamente y presionar a los directivos respecto al contenido de la información difundida, el Tribunal nota que la Comisión y los representantes no han aportado pruebas o elementos que evidencien que la emisión de los oficios haya afectado la libertad de buscar, recibir y difundir información de las presuntas víctimas. Tampoco han aportado pruebas para desvirtuar el contenido de los oficios, emitidos con base en una normativa vigente en Venezuela (…).

380. Como ha sido señalado (supra párr. 340), este Tribunal estima que para que se configure una violación del artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.

381. La Corte observa que si bien la presencia y manifestaciones de los agentes de la DISIP o de la Casa Militar en la estación “Los Mecedores”, donde se encontraban las antenas de transmisión de RCTV, pudieron ser percibidas como amenazas y provocar en las presuntas víctimas algún efecto amedrentador, el Tribunal no cuenta con prueba suficiente que dem (…).

394. En definitiva, no ha sido comprobado ante la Corte que los tres oficios emitidos por CONATEL relativos al contenido de un programa transmitido por RCTV y las intervenciones a sus emisiones hayan constituido restricciones indebidas e indirectas al derecho de las presuntas víctimas a buscar, recibir y difundir información, que constituyeran violación del artículo 13.1 y 13.3 de la Convención Americana, en perjuicio de aquéllas” (el destacado no es del original).

De lo transcrito es oportuno resaltar lo siguiente: “para que se configure una violación al artículo[63]”. Es decir, que el mecanismo indirecto empleado por las autoridades tenga un efecto directo sobre la libertad de expresión y la libre circulación de ideas y opiniones. La Corte IDH declaró que no quedó establecido que el Estado hubiera violado el derecho a buscar, recibir y difundir información, en los términos del artículo 13.3 de la CADH. Seguramente, por haberse rechazado la infracción a dicho numeral, la mayoría de la Sala no invocó esta sentencia como apoyo de su decisión. Sin embargo, considero que la ratio señalada es sumamente importante, y en lo sucesivo se repite en los votos posteriores sobre el particular, manteniéndose incólume la condición advertida: “que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”.

En segundo lugar, la sentencia de la mayoría se apoya en lo dispuesto en el “Caso Nombre65 vs. Perú”. En esta resolución, la Corte IDH sí declaró una infracción al artículo 13.3 de la CADH, pues constató que a través de presiones indirectas ejercidas contra el señor Nombre21 ?dejar sin efecto legal el título de nacionalidad peruana, sin el cual no podía continuar como propietario de una empresa concesionaria de canal televisivo en el Perú? se lesionó su libertad de expresión. En ese caso, al declarar la violación de esa norma, indicó:

“162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Nombre158 constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.

163. Al separar al señor Nombre158 del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.

164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Nombre21” (el destacado no es del original).

Así, en dicha sentencia se determinó que –como consecuencia de la línea editorial asumida por el Canal 2– el señor Nombre158 fue objeto de acciones intimidatorias de diverso tipo, que culminaron en restricciones concretas sobre la libertad de expresión: se le suspendió en el ejercicio de los derechos como accionista mayoritario y Nombre138 de la compañía televisiva, y se le revocó su nombramiento como director de esta; y, por lo tanto, se le restringió la circulación de ideas que el amparado promovía. Es decir, se constató una restricción c La mayoría de esta la Sala luego alude al caso “Nombre67 vs. Paraguay”. En dicha resolución, la Corte IDH tuteló en genérico el artículo 13 de la CADH, declarando lo siguiente:

“[E]l Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana sobre Derechos Humanos, en relación con el artículo 1.1 de dicho tratado El marco fáctico de ese caso evidencia que se causó una lesión cierta a la posibilidad del señor Nombre159 de ejercer su libertad de expresión. Esto por cuanto se constató que, luego de sus mani[64] “[E]l Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Nombre159 durante más de ocho años y las restricciones para salir del país durante ocho años y casi [65] En relación con este caso, se debe decir que hubo consecuencias directas sobre la persona emisora de las manifestaciones, quien, en virtud de estas se vio castigado penalmente con restricciones a su libre tránsito.

Seguidamente, corresponde aquí hacer referencia al caso “Perozo y otros vs. Venezuela” que también fue invocado por los recurrentes, pero no por la mayoría de la Sala. Dicha sentencia versa sobre una situación política convulsa y un contexto de “amenazas [y agresiones] a comunicadores sociales”. La Corte IDH amparó la situación de los comunicadores a tenor del artículo 13.1, pero no del artículo 13.3, ambos de la CADH, en los siguientes términos:

“El ejercicio efectivo de la libertad de expresión implica la existencia de condiciones y prácticas sociales que lo favorezcan. Es posible que esa libertad se vea ilegítimamente restringida por actos normativos o administrativos del Estado o por condiciones de facto que coloquen, directa o indirectamente, en situación de riesgo o mayor vulnerabilidad a quienes la ejerzan o intenten ejercerla, por actos u omisiones de agentes estatales o de particulares. En el marco de sus obligaciones de garantía de los derechos reconocidos en la Convención, el Estado debe abstenerse de actuar de manera tal que propicie, estimule, favorezca o profundice esa vulnerabilidad y ha de adoptar, cuando sea pertinente, medi 367. (…) Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.

La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relacione[66] 368. Este Tribunal estima que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.

369. Las declaraciones señaladas, examinadas en el contexto en que se produjeron, contienen opiniones sobre la supuesta acen un Estado de derecho las situaciones conflictivas deben abordarse a través de las vías establecidas en el ordenamiento jurídico interno y conforme a los estándares internacionales aplicables. En el contexto de vulnerabilidad enfrentado por las presuntas víctimas, ciertas expresiones contenidas en las declaraciones sub examine pudieron ser percibidas como amenazas y provocar un efecto amedrentador, e incluso autocensura, en aquéllas, por su relación con el medio de comunicación aludido. Sin embargo, el Tribunal considera que, en consideración de los criterios señalad[67][68], en relación con el artículo 1.1 de la misma” (el destacado no es del original).

Luego de la lectura de tal pasaje, se comprende por qué la mayoría no hizo alusión a esa sentencia de la Corte IDH. Conviene destacar la ratio de la Corte, en el sentido de que para que se configure una violación al artículo 13.3 de la CADH es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones. Esto, como es público y notorio, no ha sucedido en el presente caso, pues, luego del dictado de los actos administrativos, los periodistas han podido manifestar sin dificultad alguna sus ideas y opiniones, y la imposibilidad o dificultad cierta de hacerlo en el futuro ?debido a la existencia de tales actos? no fueron debidamente acreditadas.

Finalmente, es preciso hacer referencia al “Caso Nombre162 y otros (Radio Caracas Televisión) vs. Venezuela, que sí fue invocado por los recurrentes y la mayoría de la Sala, en el cual se declaró la violación a la libertad de expresión por medios indirectos. Se enmarca dentro de la crisis política y social ocurrida en Venezuela, en la que “desde el año 2002 funcionarios del Estado venezolano, entre ellos el Nombre138 Nombre163, realizaron distintas declaraciones respecto a que no serían renovadas las concesiones a algunos medios privados de comunicación social en Venezuela y luego “a partir de diciembre de 2006, funcionarios del Estado pasaron a anunciar la decisión oficial de no renovar la concesión de RCTV”. En esa sentencia se realizaron las siguientes consideraciones de interés:

“1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. (…) Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.

162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión” o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.

163. Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas, al manifestar que “[l]a utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuenci Hasta aquí lo más relevante de ese pasaje es que la Corte IDH afirma que las restricciones de la libertad de expresión por vías indirectas son más sutiles, luego hace alusión a su propia jurisprudencia y subraya que la enumeración de estas que contiene el artículo 13.3 de la CADH no es taxativa y, finalmente, menciona otros posibles ejemplos, incluidos los que mencionó el perito. Al respecto, téngase presente que esas medidas –publicidad y tributos– recaen directamente sobre esos medios de comunicación. Después señala:

“164. Asimismo, la Corte recuerda que para que se [69] Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad” (el destacado no es del original).

Como se puede observar, este párrafo es especialmente significativo porque reitera que para que se configure la violación de dicha norma la vía o medio indirecto debe restringir efectivamente la comunicación y la circulación de ideas y opiniones. En otros términos, para que una conducta se tenga como medio indirecto de restricción debe darse tal restricción. Si el efecto restrictivo no se da, el medio que se aduce como restrictivo no es tal, justamente porque le falta una condición esencial, la de incidir efectivamente en la libertad de expresión, esto es, en la comunicación y la circulación de ideas y opiniones. Esto que parece una obviedad es precisamente lo que lleva a concluir que aquí en el presente caso no se ha dado la alegada violación del artículo 13.3 de la CADH.

En ese mismo pasaje se dice que tal restricción puede manifestarse de varias maneras: puede tener un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. Y es un hecho público y notorio que los periodistas recurrentes, luego del dictado de la orden sanitaria y el oficio conexo, han seguido realizando su labor según su propio criterio y posición, como procede en una sociedad democrática. Además, no mostraron fehacientemente –ni siquiera de manera indiciaria– que, debido a esos actos administrativos impugnados, en el futuro no podrían seguir haciéndolo.

En esa sentencia, después de referirse al contenido e importancia de la libertad de expresión en una sociedad democrática, la Corte IDH afirma:

“171. Teniendo en cuenta lo anteriormente señalado, la Corte recalca la necesidad de que los Estados regulen de manera clara y precisa los procesos que versen sobre el otorgamiento o renovación de concesiones o licencias relacionadas con la actividad de radiodifusión, mediante criterios objetivos que eviten la arbitrariedad. Específicamente, es preciso que se establezcan las salvaguardas o garantías generales de debido proceso, que cada Estado determine como necesarias en estos procesos a la luz de la Convención Americana, con la finalidad de evitar el abuso de controles oficiales y la generación de posibles restricciones indirectas (…).

189. Ahora bien, tanto la Comisión Interamericana como los representantes han aseverado que esta no era la finalidad real, por cuanto habría pruebas que demostrarían que existía una intención de castigar a RCTV por la línea editorial crítica contra el Gobierno. Al respecto, en el presente caso, la Corte considera necesario, tener en cuenta que el motivo o propósito de un determinado acto de las autoridades estatales cobra relevancia para el análisis jurídico de un caso, por cuanto una motivación o un propósito distinto al de la norma que otorga las potestades a la autoridad estatal para actuar, puede llegar a demostrar si la acción puede ser considerada como actuación arbitraria o una desviación de poder. Con relación a ello, el Tribunal toma como punto de partida que las actuaciones de las autoridades estatales están cubiertas por una presunción de comportamiento conforme a derecho. Y por ello una actuación irregular por parte de las autoridades estatales tiene que aparecer probada, a fin de desvirtuar dicha presunción de buena fe. Para lo anterior, la Corte procederá a: a) realizar un recuento de la prueba obrante en el expediente sobre la alegada finalidad no declarada, y b) examinar dicha prueba”.

Es decir, admite que corresponde hacer un examen para determinar si hubo o no desviación de poder, y para ello estima que es ineludible analizar la prueba. Sobre el particular, la Corte IDH señala:

“197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).

198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Nombre76, Nombre77, Nombre78, Nombre79, Nombre80, Nombre81, Nombre82, Nombre83, Nombre84, Nombre85 y Nombre86” (el destacado no es del original).

De lo subrayado se desprende con claridad que hubo una conducta encaminada a impedir la libertad de expresión a partir de la decisión estatal de no renovar la concesión a un medio Vale la pena hacer una recapitulación de las sentencias en las que la Corte IDH sí declaró la violación del artículo 13.3 de la CADH: En el caso “Nombre65 vs. Perú” se constató la privación arbitraria del título de nacionalidad por parte del Estado peruano al señor Nombre65, con el objeto de privarlo del control editorial del canal de televisión que dirigía, por cuanto la legislación peruana vigente en el año de 1997 disponía que, para ser propietario de empresas concesionarias de canales televisivos en el Perú, se requería gozar de la nacionalidad peruana. En el caso [70] Las líneas de la Corte IDH son reiterativas en el sentido de que “para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones”.

En definitiva, lo que se procura es evitar que existan o se generen obstáculos al libre flujo informativo o de opinión. Por lo tanto, si no se demuestra que se impidió esta libre circulación, entonces, no se configura la lesión al artículo 13.3 de la CADH. Además, todos los casos tienen otro denominador común: se trata de medidas que recayeron directamente en la persona o en el medio de comunicación. La lógica de esa norma es que son lesivas las conductas que de forma indirecta causan una lesión directa a la libertad de expresión.

En el sub lite, por el contrario, no se logró demostrar cuál ha sido el impacto que el dictado de una orden sanitaria y su oficio conexo que recaen sobre un inmueble de otra unidad de negocio ajena al periódico haya tenido en la libertad de expresión de los recurrentes. En otras palabras, no se ha cumplido lo que la Corte IDH exige que para que se configure una violación al artículo 13.3 de la Convención: que la vía o el medio indirecto restrinja, efectivamente, la comunicación y la circulación de ideas y opiniones. Resalto la palabra efectivamente, esto es, que en efecto o verdaderamente, se restrinja la circulación de ideas y opiniones. En otras palabras, las rationes de las sentencias de la Corte IDH no pueden invocarse en el presente caso, pues el marco fáctico que se tiene por probado lo impide, porque no hay una constatación de que los actos administrativos que se acusan de arbitrarios (la orden sanitaria y el oficio conexo) hayan impactado, efectivamente, en la libertad de expresión de los recurrentes.

En síntesis, las sentencias de la Corte IDH que aquí se acaban de analizar (que fueron las invocadas por los recurrentes y/o por la mayoría de la Sala) permiten concluir que se declaró la violación del artículo 13.3 de la CADH solo cuando las vías o medios indirectos tuvieron una incidencia directa en el ejercicio de la libertad de expresión. Al sub lite, por el contrario, no se le puede aplicar válidamente dicha jurisprudencia para fundamentar la estimatoria del recurso, pues se trata de unos actos que tienen una incidencia directa en la unidad de negocio que pertenece también al grupo dueño del periódico, pero de los que no se demostró que hubiese tenido impacto directo sobre el ejercicio de la libertad de expresión de los recurrentes.

La jurisprudencia de la Sala Constitucional Corresponde ahora examinar la jurisprudencia constitucional que la mayoría de la Sala invoca para mostrar que en el presente asunto se sigue la línea de esas sentencias en las que se acreditó que, a través de medios indirectos, se causó una lesión directa a la libertad de expresión.

El primer caso que la mayoría trae a colación se refiere a un recurso en el que se examinó el proceder de un diputado de la República, que envió cartas a instituciones públicas con el aparente propósito de solicitar que se le retirara la publicidad al medio de comunicación. El recurrente alegó que esto debía ser considerado como tráfico de influencias, abuso de poder y censura previa. Se constató la existencia de las notas dirigidas a las instituciones públicas con las siguientes afirmaciones: “les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar”. Al resolver, esta Sala recogió la ratio de las sentencias de la Corte IDH y concluyó:

“En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (…).

La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.

Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive– eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal”.

Nótese que la mencionada publicidad era la que se daba a conocer en el medio de comunicación recurrente. Se trataba de un ingreso económico derivado del funcionamiento del programa, no de la actividad propia de una unidad de negocio ajena a este.

La sentencia continúa:

“En segundo lugar, un diputado Nombre01 no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido (…).

En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo” (sentencia 2015-1782; el subrayado es del original; el subrayado con negrita no es del original).

Si se examina con detenimiento dicha resolución, se aprecia que la mayoría de la Sala que declaró con lugar el recurso hizo énfasis en el hecho de que la amenaza tuvo efectos concretos, puesto que una pauta publicitaria prevista para el programa del amparado fue suspendida. De modo que la conducta del legislador recurrido tuvo una incidencia directa sobre los ingresos y la publicidad del programa radial. Ahora bien, en el voto de minoría se consignó lo siguiente:

“La única circunstancia fáctica, a partir de la cual la mayoría de este Tribunal estimó que se produjo una censura, es que el Instituto Costarricense de Acueductos y Alcantarillados suspendió la pauta del 15 de octubre al 15 de noviembre de 2014, a la espera de la respuesta que se le ofrecería al co-recurrido Nombre132, cuando lo cierto del caso es que el programa radial siguió en el aire y difundiéndose, por cuanto, contaba con otros patrocinadores. En todo caso, la Directora de Comunicación de esa entidad pública informó que la pauta se reinició el 1° de noviembre de 2014. Estimo que tales circunstancias fácticas son absoluta y rotundamente insuficientes para tener por acreditada una censura directa o indirecta que, como se apuntó, nunca se dio. Debe tomarse en consideración que para acoger o estimar un proceso de amparo, de acuerdo con el artículo 29 de la Ley de la Jurisdicción Constitucional, debe existir una violación o amenaza de violación del derecho fundamental invocado, lo que no sucedió en el sub-lite.

Adicionalmente, es menester apuntar que la censura previa, tiene su origen en conductas activas u omisivas de los poderes públicos que despliegan algún tipo de control o dejan de hacerlo para impedir la difusión de ideas, pensamientos, opiniones, lo que no sucedió en el sub-lite. Lo anteriormente apuntado queda patente, a manera de ejemplo, en dos casos emblemáticos de la Corte Interamericana de Derechos Humanos sobre la materia, que son los casos ?La última tentación de Nombre181 vs. Chile' e ?Nombre65 vs. Perú' en los que, respectivamente, la producción cinematográfica no se pudo exhibir entre 1988 y 2003, por resolución administrativa sustentada en una norma constitucional y se revocó, por decisión administrativa, la ciudadanía peruana del dueño de un canal televisivo que difundía un programa de críticas en contra del gobierno, por lo que dejó de transmitirse. En definitiva, no nos enfrentamos a ninguna supresión ilegítima, radical o no, de la libertad de expresión.

Tampoco, resulta posible inferir, a partir de la circunstancia fáctica apuntada, un control o medio ilegítimo de censura indirecto o velado de carácter idóneo” (voto salvado del magistrado Nombre133 a la sentencia 2015-1782; el destacado no es del original).

Esa postura disidente se acerca más a la jurisprudencia de la Corte IDH, en el sentido de que sostiene que para que exista una lesión al artículo 13.3 de la CADH se requiere una afectación directa y cierta en la libertad de difusión de ideas, pensamientos y opiniones. Pero, en todo caso, sí que cumple con otra de las condiciones de esa jurisprudencia: que la conducta recae directamente sobre el recurrente.

En segundo término, en el presente asunto la mayoría de la Sala invocó la sentencia de un recurso en el que se cuestionó que el Banco Nacional paulatinamente fue reduciendo la pauta publicitaria en el periódico La Nación. En el hecho probado e) de dicha sentencia se consignó como debidamente demostrado lo siguiente:

“e) En el primer semestre del año 2016, el Banco Nacional de Costa Rica dispuso la reducción paulatina de la pauta publicitaria en las páginas del Diario La Nación. De los $732.402,54 dólares estadounidenses invertidos en el 2014 y los $696.373,73 dólares estadounidenses invertidos en el año 2015, en el período citado del año 2016 se pasó a una pauta publicitaria de $123.347,47 dólares estadounidenses (ver documentación e informe rendido bajo juramento)” (sentencia 2016-15220).

Al respecto, luego de acreditados tales hechos, se realizaron las siguientes consideraciones:

“En conclusión, sobre este tema debe tenerse por demostrado que aun cuando pudieran existir razones técnicas u objetivas que apuntaban a una disminución de las pautas publicitarias del Banco al Periódico La Nación, lo cierto es que estas razones no fueron tomadas en cuenta para disponer, como en efecto se hizo, una pausa en la publicidad contratada a dicho medio de comunicación, a partir de la publicación de las primeras noticias a finales de febrero, y en particular, durante los meses de junio y julio, las cuales queda acreditado se dieron con el fin de ?lograr un cambio en la actitud' del Periódico La Nación, respecto de la manera en que se venían abordando los temas relacionados con el Banco Nacional desde hacía varios meses.- En síntesis, se logra acreditar en el caso, como se dirá, que se ha producido una censura indirecta de parte de un funcionario público a un medio de comunicación, como reacción a su línea editorial, con el único propósito de ?motivar' un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…).

El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales. Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo (…).

Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático (…).

Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de ?motivar' al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes” (sentencia 2016-15220; el destacado no es del original).

En el caso aludido hay conductas que impactan directamente al medio de comunicación. En efecto, se demostró que hubo una intención manifiesta de reducir la pauta publicitaria, que es una de las fuentes de ingresos que sostienen al periódico amparado. Aquí cabe destacar que es cierto que la Sala tuteló propiamente los ingresos que recibe el medio de comunicación por concepto de publicidad, pero también lo es que esa tutela no alcanza a proteger cualesquiera actividades comerciales de los dueños del medio de comunicación, por el hecho mismo de que también pertenecen a ellos.

La mayoría de la Sala en el presente asunto también refiere un caso en el que la parte recurrente adujo que se realizó la entrevista denominada “La violencia doméstica contra el hombre” en el programa “Café Nacional” de la empresa pública Radio Nacional de Costa Rica y que, con posterioridad, el director de Radio Nacional publicó un artículo titulado “Amarga vergüenza”, en el que advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Ello implicó que la entrevista fuera borrada por completo del portal de Internet del Sistema Nacional de Radio y Televisión (Sinart) y de la página de Facebook. En dicha sentencia se dijo lo siguiente:

“En aplicación de lo anterior al sub-lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados ?por supuesto no va a suceder', y que él ?jamás hubiera permitido que esta entrevista saliera al aire...', pero ?...una situación como esta no volverá a pasar...'. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras” (sentencia 2018-8396).

De lo reseñado tampoco hay duda de que existió una finalidad explícita a suprimir los contenidos que el amparado pretendía dar a conocer, por lo que se justifica la tutela a su libertad de expresión. Además, más bien parece ser un ejemplo lesiones por amenaza de censura y por censura posterior, realizadas por medios directos, por lo que es un tanto debatible que la norma que proceda aplicar a ese caso sea el artículo 13.3 de la CADH. Pero, de nuevo, nótese que los actos arbitrarios recaen directamente sobre quien comunica.

Luego, la mayoría de la Sala se refiere a otra sentencia que declaró una intromisión de parte de la Prodhab en la libertad de expresión del medio amparado, pues dicha agencia había dispuesto que se eliminara la imagen de una persona en un hecho noticioso concreto que, en criterio de la Sala, era de interés público y justificaba el uso de la imagen de esa persona investigada. En lo conducente, se resolvió lo siguiente:

“En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación– o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (2015-1782).

Considera la Sala que el ejercicio de las competencias de la Prodhab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.

En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, –puesto que se trata de un tema migratorio fronterizo–, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta” (sentencia 2020-10961).

La estimatoria de dicho recurso de amparo se justifica precisamente en que hubo una restricción directa al medio de comunicación y, por tal motivo, concurrí con el voto unánime del asunto. Adviértase que aquí también el acto arbitrario recayó directamente sobre el periódico.

La mayoría de la Sala además invoca otra sentencia que también suscribí. En dicho asunto se constató que hubo manifestaciones o instrucciones de la entonces presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, dirigidas a servidores de dicha institución, para que no se brindaran declaraciones a dos medios de comunicación concretos. De forma sintética la Sala concluyó lo siguiente:

“En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública” (sentencia 2020-016167; el destacado no es del original).

De esa cita se desprende una incidencia directa en relación con los medios de comunicación. Esto es, que se instó a los servidores de la institución aludida a abstenerse de “alimentar” o brindar información a dos periódicos concretos.

La mayoría de la Sala también cita lo resuelto recientemente en la sentencia 2022-23107, en la que también concurrí, mediante la cual se puso en conocimiento de este Tribunal un supuesto comunicado que la entonces ministra de Comunicación, Nombre103, les remitió por WhatsApp a todos los ministros y presidentes ejecutivos del Gobierno. Se adujo que, en la referida comunicación, la ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios Amelia Rueda, La Nación, CRHoy y Canal 7. Asimismo, que ahí mismo se les instaba “con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda”. No obstante, dicho recurso fue desestimado en cuanto a tal extremo, dado que esta Sala no pudo tener por demostrado que se hubiera girado la orden o directriz que cuestionaba la recurrente. Sin embargo, como marco considerativo, se invocó la sentencia 2015-1782, sobre la que ya se hizo referencia al inicio de este acápite.

Por último, cabe apuntar que, aunque no fue invocado por la mayoría, es pertinente hacer referencia a la reciente sentencia dictada el 30 de setiembre de 2022, cuya parte dispositiva fue adoptada en los siguientes términos:

“Se declara parcialmente con lugar el recurso. En consecuencia, se anula parcialmente el oficio N°MS-DM-6218-2022 del 22 de julio de 2022, en cuanto a la prohibición en brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas del Ministerio de Salud. Se mantiene incólume dicho oficio, en cuanto a la gestión de consultas mediante un correo institucional (vocería institucional). Se advierte a las autoridades recurridas que, de conformidad con lo establecido por el artículo 71, de la Ley de la Jurisdicción Constitucional, se impondrá prisión de tres meses a dos años o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada dentro de un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado” (sentencia 2022-23075; el destacado no es del original).

En ese asunto la Sala acreditó que el oficio establecía la prohibición dirigida a los servidores del Ministerio de Salud de brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas de ese ministerio. Se estimó que eso implicaba una restricción a la libertad de información y se anuló parcialmente dicho oficio. También podría ser debatible si aplica a este caso el artículo 13.3 de la CADH, pero, sí lo fuera, nótese que el acto arbitrario se dirige a restringir directamente la libre circulación de información que nutre a los medios de comunicación.

En todo caso, todas las sentencias citadas por la mayoría tienen en común que de alguna manera se constató una restricción a la libertad en el flujo de la comunicación y las ideas, ya sea a través de la reducción en la publicidad que alimenta al propio medio de comunicación, de directrices concretas tendientes a eliminar contenidos noticiosos, o bien de restricciones a los servidores públicos para entrar en contacto con determinados medios de comunicación. Las rationes que fundamentaron esas sentencias, desde mi perspectiva, no resultan aplicables al presente asunto. En efecto, en este, como se ha afirmado a lo largo de estas páginas, no se logró acreditar una conducta específica destinada a restringir la libre circulación de la información y los derechos fundamentales de los periodistas amparados. Es decir, no consta dato alguno por el cual se pueda afirmar que los actos impugnados hubieran impedido que los recurrentes realizaran su labor periodística, es decir, el ejercicio de su libertad de expresión.

Por lo tanto, por no acreditarse una restricción concreta, no resultan aplicables los antecedentes hasta acá invocados. Si hubiese habido una lesión a tal libertad, cabría entrar a examinar si los medios indirectos en efecto la restringieron, pero aquí no se advierte la lesión como tal. Además, y esto es particularmente relevante, en todos los casos en que la Sala declaró que los actos conculcaron la libertad de expresión, estos recayeron directamente sobre el comunicador o el medio de comunicación.

Estas luces que arrojan esa jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, son un punto de partida para retomar las reflexiones que se estaban haciendo en el epígrafe relativo a la inexistencia de la lesión.

Reflexiones adicionales sobre la inexistencia de la violación Como he dicho, desde el momento en el que se constata que no hay legitimación activa, no corresponde examinar por el fondo el asunto con el fin de determinar si se produjo o no la lesión alegada. Pero, si hubiese legitimación, esta no bastaría para declarar con lugar el recurso, pues deben darse al menos dos condiciones: que haya afectación a la libertad de expresión y que los actos sean arbitrarios.

Con la jurisprudencia anteriormente comentada, estimo que ha quedado más claro aún que en el presente caso no se configuró la afectación a la libertad de expresión, porque no hubo impedimento a “la comunicación y la circulación de ideas y opiniones”. Respecto de los actos, ya se indicó que en principio debe ser arbitrario para que se pueda plantear la posibilidad de sea formalmente lesivo. Si los actos son legítimos de suyo no cabría hablar de afectación a la libertad de expresión sino de un perjuicio, que no es antijurídico. Como dice la sentencia en un pasaje que fue transcrito en su totalidad y que aquí se cita en lo conducente:

“[N]o todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen” (considerando VIII).

Ahora bien, ¿qué pasaría si el acto fuera legítimo de suyo, pero tiene reales y nocivas repercusiones en la estabilidad financiera del periódico, que harían imposible o dificultarían gravemente la libertad de expresión, en el sentido de que no sería posible hacer un periodismo independiente?

Para responder a esa interrogante cabría invocar el artículo 3 de la LJC:

Artículo 3. Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales. (El destacado no es del original).

La norma es más aplicable en los procesos de control de constitucionalidad, pero, al estar en la parte preliminar de la ley y al referirse a “acto cuestionado”, nada impide que se utilice en procesos de garantías de derechos fundamentales, como el recurso de amparo.

Entonces, a tenor de esa norma, los actos de suyo legítimos podrían lesionar grave y formalmente la libertad de expresión, por lo que por esa razón podría entenderse que procedería su anulación.

Sin embargo, estimo que la aplicación del artículo 3 de la LJC tiene un límite. O más bien quizá ese mismo artículo aplicado vigorosamente es la llave para esclarecer sus propios límites.

En primer lugar, será preciso examinar si esos efectos lesivos son antijurídicos, pues, aunque sean perjudiciales, no necesariamente los actos que provocan tales efectos serían arbitrarios. Pero, además, no se trata solo de valorar los concretos efectos de los actos en su destinatario directo (Parque Viva), sino en otras esferas (el periódico La Nación y, por eso, los recurrentes). Es decir, sería necesario atender a los efectos que los actos impugnados tienen en la otra unidad de negocio (el periódico). Aun así, todo apunta a que hay que ir más allá. Corresponde considerar cuáles son los efectos de que estime que los actos arbitrarios son lesivos porque inciden en otra unidad de negocio y que, presumiblemente, al dejarla sin sustento económico, cercenan la libertad de expresión de los recurrentes.

En el presente asunto debe tenerse muy presente cuáles son las coordenadas de la cuestión: se trata de dos unidades de negocio –Parque Viva y periódico La Nación– que pertenecen al Grupo Nación, pero que no forman parte de un proceso de producción. Cada una tiene giros comerciales distintos y plenamente independientes, tanto por el objeto (a qué se dedican) como por los sujetos que en ellos intervienen. Cada unidad de negocio está sometida a reglas distintas en los diversos planos normativos y de gestión.

Pues bien, como se ha visto, el artículo 13.3 de la CADH señala que la lesión a la libertad de expresión por medios indirectos se da cuanto estos están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Además, por jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, los actos deben recaer sobre el sujeto que comunica (personal física o jurídica). Entonces, la interrogante es: ¿aquellos actos que recaen sobre una unidad de negocio (Parque Viva) distinta del periódico son lesivos de la libertad de expresión porque inciden en la salud financiera de este?

Si se dijera que sí, esto es, que los actos son arbitrarios y son lesivos de la libertad de expresión porque repercuten en la estabilidad financiera del periódico, lo que se estaría afirmando es que la causa de la violación de la libertad de expresión es esa incidencia en tal estabilidad. Si de verdad fuera así, sería casi irrelevante que los actos sean de suyo arbitrarios o no, pues bastaría que incidiesen en la estabilidad financiera para que se tengan por lesivos antijurídicamente, porque lo que importaría es si por sus efectos los actos son lesivos antijurídicamente. Desde mi perspectiva, sostener eso tendría unas consecuencias contraproducentes para la sociedad y, paradójicamente, para los dueños del Grupo Nación.

De nuevo, la pregunta es: ¿Los actos impugnados que recaen en el Parque Viva (que es una unidad de negocio dedicado a un giro comercial ajeno a los medios de comunicación) inciden en la libertad de expresión de los periodistas de La Nación (que es la unidad de negocio dependiente) por de?

La repuesta esta vez añade otro dato: Si se respondiera que sí, entonces, se tendría que admitir que todo acto que vaya en perjuicio de la salud financiera del Parque Viva lesionaría la libertad de expresión de los periodistas de La Nación, por dejar sin sustento financiero al periódico. En último término, como se ha adelantado, la causa de la lesividad antijurídica sería la incidencia en la salud financiera del periódico. Sin embargo, eso no parece razonable por varios motivos concatenados:

Para facilitar el análisis, se entenderá que la unidad de negocio A es la que tiene [71] Primero. Toda persona física o jurídica desearía tener una unidad de negocio como B, para tener una suerte de impunidad respecto de la Administración en su unidad de negocio A, porque esta unidad deberá estar siempre indemne, protegida, de toda afectación financiera que se pruebe que incide en la actividad de la unidad de negocio B.

Segundo. Cabría el peligro de que todo acto legítimo de la Administración que recaiga en la unidad de negocio A, pero del que se pruebe que tiene incidencia financiera en la unidad de negocio B, se considere ilegítimo debido a sus efectos en la libertad de expresión de quienes allí laboran. Es decir, la Administración tendría serias limitaciones para obligar a respetar las propias normas de cada giro comercial, porque una vez probada la dependencia financiera de Nombre182 respecto de Nombre183, todo se reconduciría a una lesión a la libertad de expresión, incluso aquellos actos de suyo legítimos.

Tercero. Ese peligro incluso podría comportar un riesgo para el propio dueño de la unidad de negocio A, pues si realiza un acto legítimo sobre esta que incida en la salud financiera de la unidad de negocio B, estaría incurriendo en un acto lesivo de la libertad de expresión de los periodistas que laboran en la unidad de negocio B. La presunta impunidad de la que gozaría la unidad de negocio A frente a la Administración, se convierte en una fuente de propia responsabilidad horizontal y sin fronteras frente a los periodistas que laboran en la unidad de negocio B.

Lo anterior sería así , sino sus efectos sobre la salud financiera de la unidad dependiente; y se entendería que tal incidencia necesariamente afecta la libertad de Me pregunto si esa tesis resiste una aplicación universal. Parece que más pronto que tarde llevaría al absurdo.

Además, ha de tenerse presente que los holdings o conglomerados de empresas están integrados por unidades de negocio paralelas que se encuentran sometidas a reglas propias del giro al que se dedican. Por eso, la misma raíz financiera no permite extrapolar reglas de un negocio a otro: ni las prohibiciones, ni las protecciones[72] Tanto es así que, ante una quiebra de una de las unidades (que no sean parte de un mismo proceso de producción, sino que se [73] Al respecto, dice la sentencia:

“[Nombre143]abe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial” (sentencia, considerando VIII; el destacado no es del original).

Esto es así también por exigencias del principio de igualdad, pues de lo contrario, se trataría desigualmente a los iguales. Es decir, los dueños de medios de comunicación que, a la vez, sean dueños de otra empresa con un giro comercial distinto tendrían en este otro giro unas ventajas sobre los otros competidores, como se acaba de explicar.

Entonces, tal parece que la aplicación de un acto administrativo a una de las unidades de negocio, aunque tenga incidencia financier Hay un último elemento que vale la pena comentar. Aunque no sea posible consignar una respuesta unívoca, porque el tema tiene muchas facetas, cabe preguntarse sobre si el formato es parte del núcleo duro de la libertad de expresión, al menos, de la que es ejercida a través de un medio de comunicación. Para esto debe recordarse que la libertad de expresión conlleva por definición el deber de no hacer por parte del Estado: no impedir su ejercicio. Y, a tenor del artículo 13.3 de la CADH, se debe añadir que también hay una obligación de garantizar que no se impida ese ejercicio [74] Motivos para acoger el recurso respecto de la libertad de expresión Los recurrentes dan cuenta de unos hechos para probar la vinculación entre el objeto impugnado y la lesión aducida. Parece que para ellos la importancia que algunos de estos tienen es que reflejan el contexto que permite valorar esa vinculación. Sin embargo, estimo que hay hechos que son en sí mismos significativos. Aquí se analizarán con el fin de determinar si constituyen violaciones directas a la libertad de expresión.

Marco normativo y jurisprudencial Hay dos normas que han de tomarse en consideración. Por un lado, el artículo 29 de la Constitución Política que establece:

Artículo 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.

Por otro, en lo conducente, el artículo 13 de la CADH que señala:

Artículo 13. Libertad de Pensamiento y de Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.

2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: a) el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas.

3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de conta impedir la comunicación y la circulación de ideas y opiniones.

4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa, con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.

5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que consti La Sala Constitucional tiene una robusta jurisprudencia que subraya que el respeto a la libertad de expresión es una de las condiciones indispen[75] “VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle co[76], como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos.

Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa” (sentencia 2006-5977; el destacado no es del original; esas consideraciones han sido muchas veces reiteradas por la Sala, por ejemplo, en las sentencias 2015-1782, 2018-8396, 2019-8263 y 2020-16167).

Esta sentencia continúa con un pasaje particularmente relevante para el análisis que de inmediato se va a hacer:

“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema” (ibid.; el destacado no es del original).

Es decir, se habla de la censura –entendida como el acto de reprobar– como un acto contrario a la libertad de expresión. Dicho de otro modo, se afirma que la consecuencia de esa libertad es la prohibición de toda clase de censura. Luego, no existe solo la censura previa, prohibida expresamente por los artículos 29 de la Constitución y 13 de la CADH, sino que puede darse una censura posterior, que tiene el propósito de inhibir cierto contenido informativo o de opinión. También se dice que la protección contra la censura alcanza no solo a los sujetos (quien comunica) sino al contenido (lo que se comunica).

Además, aunque no se desprende de esas líneas jurisprudenciales, estimo que se podrían incorporar otros criterios para completar una tipología de censura. Así, por su apariencia, puede ser velada o manifiesta; por los medios para ejercerla, puede ser directa o indirecta (por ejemplo, según lo previsto en el artículo 13.3 de la CADH); por sus efectos, puede ser absoluta (si la reprobación va de manera concomitante con la supresión) o relativa.

Finalmente, de manera sintética, ha dicho:

“La Sala recuerda que la defensa de la libertad de expresión es vital para el funcionamiento de un régimen democrático” (sentencia 2017-014977; el destacado no es del original).

Naturalmente, coincido plenamente con esa jurisprudencia, y he concurrido en muchas otras sentencias posteriores que fortalecen esa línea (vid. sentencias 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, entre otras).

Marco fáctico Cuando se leen los alegatos, se advierte que los recurrentes estiman que los actos administrativos son el último eslabón de una cadena de manifestaciones amenazantes de la libertad de expresión. Como he dicho, aluden a estas para reflejar un contexto y mostrar la vinculación entre la orden sanitaria (y el oficio conexo) y la lesión a la libertad de expresión. Sin embargo, a mi juicio, es preciso detenerse a examinar cuáles manifestaciones del Nombre138 Nombre01 –no solo las alegadas, sino las que tienen carácter de hecho público y notorio y que indubitablemente pueden considerarse parte de ese contexto– podrían constituir en sí mismas lesiones directas a la libertad de expresión.

Este examen debe estar medido por los requisitos de orden procesal: temporalidad, legitimación activa, legitimación pasiva, etc. Por eso, solo corresponde analizar los hechos acaecidos a partir del momento en el que el señor Nombre138 asume el poder (pues antes no era funcionario público), hasta el momento en el que se interpuso el presente recurso de amparo (29 de julio de 2022).

Ese es el motivo por el cual se excluyen dos manifestaciones particularmente significativas: la del 29 de enero de 2022, en la que se refiere por sus nombres a los directores de medios, y la del 3 de agosto de 2022, que llama a los periodistas “fauna”, y afirma que una de las especies es la de las “ratas”.

Especial mención merece lo referente al término “prensa canalla”. Al respecto, los recurrentes dicen:

“En nuestro caso, como es público y notorio, además del constante uso de la palabra “canalla”, una injuria para deslegitimar, amedrentar y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso” (escrito de interposición, p. 6).

Sin embargo, es un hecho constatado que a partir del momento en el que asumió el poder, el mandatario no ha utilizado esa palabra, al menos en público. Por eso, este punto también se debe excluir del examen.

No obstante, es oportuno hacer dos consideraciones. En primer lugar, ciertamente no se ha dicho que una persona determinada es canalla, pero cuando se dice “prensa” no se alude solo a la empresa o medio como tal sino a quienes en ella ejercen el periodismo. En segundo lugar, es difícil encontrar un término más vejatorio que ese. Dice el Diccionario de la Real Academia Española:

Nombre148: Del it. canaglia, y este der. de cane perro.

1. f. coloq. Gente baja, ruin.

2. f. desus. perrería (?muchedumbre de perros).

3. m. y f. Persona despreciable y de malos procederes.

Es palmario que nadie merece ese calificativo.

Tampoco se toman en cuenta las manifestaciones hechas en la conferencia de prensa del 9 de julio ni la del 20 de julio de 2022, que se refieren a los dueños del Grupo Nación, no propiamente a los recurrentes.

Sin embargo, es suficiente para este análisis circunscribirse a la conferencia de prensa del 13 de julio de 2022. En esta ocasión, el señor Nombre138 manifestó lo siguiente:

1:13:26 “La libertad de prensa en Costa Rica goza de buena salud. Tiene un Gobierno que la va a defender a toda costa. ¿Hay algún medio cerrado? ¿Algún periodista detenido? ¿Alguna rotativa parada? Obviamente no”.

Al respecto, debe señalarse que el señor Nombre138 parece En esa conferencia de prensa, el señ 1:16:46 “El artículo 50 de la Constitución Política, que yo juré defender (…), me obliga a hacer que los funcionarios hagan lo que La Nación dice de manera mentirosa, patrañosamente, es un ataque a la libertad de prensa” [lo destacado en cursiva con inflexión de voz, en tono burlesco e irónico].

1:17:25 “En el año 2017 un medio que no es parte de esta categoría, de esta especie, de este grupo, publicó e-mails internos del Parque Viva diciendo (…) ?aquí tenemos un problema serio y tenemos que ponernos a arreglarlo'” [lo destacado en cursiva con [77][78][79] 1:18:08 “No solo le ha mentido a la población, el grupo La Nación. Ha difamado a la patria, ha difamado a los costarricenses ante la prensa y comunidad internacionales, (…) pidiéndole favorcitos a sus socios y amigos en la Sociedad Interamericana de Prensa para defender intereses mezquinos”.

1:18:50 “Lo que La Nación debió haber hecho en lugar de haber difamado esa patria bendita, donde la libertad de prensa está garantizada, fue ponerse a trabajar duro y honestamente pa 1:19:49 “¿Oyeron la mentira descarada que publicó La Nación? (…) que tiene desde hace dos años pidiendo acceso para la Dirección01 (…) Dice la Nación: ¡Los acusamos!: Esto es contra la libertad de prensa porque se mueven rápido. ¿A eso hemos llegado en Costa Rica?”.

1:23:56 “¿A quiénes defienden el Grupo La Nación?… ¿a la libertad de prensa o a sus intereses?”.

1:28:00 “Porque ellos se creen encima de la ley…”.

1:28:26 “Yo daría mi última sangre para proteger las libertades de nuestro pueblo, incluyendo la libertad de mentir y de desinformar que han ejercido con gusto, frecuentement[80]”.

1:29:50 “Ustedes, La Nación, tienen la libertad para trabajar. Les debería dar vergüenza difamar a su país (…)”.

Yo hubiera querido tener una conferencia de prensa normal (…), pero la cantidad de tinta, la cantidad de minutos en canales de televisión que se han dedicado a malinformarle a usted señora, a usted señor, a usted joven, en su casa, en su carro, donde quiera que esté oyendo esto, fue demasiado (sic), y este es mi derecho de respuesta, porque el derecho de respuesta esos medios (Ustedes saben la palabra, yo me la voy a callar) no creo que me lo hayan dado, porque me lo negaron en el pasado (…).

Yo sé que es una serie de expresiones y de meditaciones pasionales, fuertes. Yo sé que el pueblo de Costa Rica no está acostumbrado a ver un Nombre138 diciéndole al Grupo de La Nación que se creen reyes con corona, costarricenses con corona. Pero esa es una nueva era. Aquí todos y todas somos iguales en libertad, en respeto, con absoluta libertad de expresión, aunque sean mentiras, pero la libertad de expresión no significa que alguien puede mentir descaradamente y que el gobierno y las personas ofendidas tengan que callarse”. (Lo destacado es lo que se estima relevante).

Consideraciones sobre las manifestaciones Estas manifestaciones reflejan el contexto de tensión, posterior al cierre temporal del Parque Viva, entre el mandatario y el Grupo Nación y el periódico La Nación. Aluden a personas determinables, algunos de las cuales son los recurrentes en el presente amparo.

Esas manifestaciones fueron públicas y hechas en su carácter de Nombre138 Nombre01, es decir, de quien ostenta la más alta investidura. Eso significa que su conducta por sí misma tiene una grandísima proyección y relevancia El estilo vehemente no es lesivo de suyo. No obstante, las palabras y el tono beligerante en extremo sí pueden serlo, pues destruyen el clima pacífico que es necesario para el libre intercambio de ideas en una sociedad democrática. Más todavía cuando las manifestaciones desacreditan a personas concretas o a una línea informativa.

Como se dijo en una de las sentencias transcritas, esta Sala ha señalado:

“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca” (sentencia 2006-5977; el destacado es del original).

Esto quiere decir que toda manifestación que suponga una censura, aunque por sus efectos sea solo relativa y no absoluta, pues con ella no se impidió la difusión posterior de las ideas reprobadas, constituye una lesión directa a la libertad de expresión, pues la libertad de expresión exige el respeto de quienes disienten y supone facilitar la comunicación de ideas sin desacreditación alguna, ni de los sujetos ni de los contenidos.

Los recurrentes merecen respeto en primer lugar por la dignidad propia de su condición de personas. Justamente, la salvaguarda de esa dignidad es el fin de todo Estado de Derecho. También merecen respeto por el hecho mismo de ser periodistas, cuya labor tiene particular importancia en una sociedad pluralista y democrática.

Ciertamente, el Nombre138 Nombre01 también tiene libertad de expresión, pero por su carácter de funcionario público, está limitada por los deberes propios de su cargo: el respeto a la Constitución y a las leyes, y a dignidad de los demás, y a las manifestaciones de críticas y disensiones.

En ese sentido, la Constitución Política dice:

Artículo 140. Son deberes y atribuciones que corresponden conjuntamente al Nombre138 y al respectivo Ministro de Gobierno:

Mantener el orden y la tranquilidad de la Nación, tomar las providencias necesarias para el resguardo de las libertades públicas.

Entonces, resguardar las libertades públicas –y dentro de estas se encuentra la libertad de expresión– es tarea asignada constitucionalmente al señor presidente. La norma también se refiere al orden y a la tranquilidad, necesarias no solo en el plano de la seguridad pública, sino en la convivencia pacífica propia de un régimen democrático. Por eso, provocar o contribuir a un nivel de violencia verbal dirigido contra los periodistas que disienten de sus enfoques luce como una afrenta al ambiente de paz social que debe promover.

Asunto distinto es si ese clima de violencia es magnificado por otros actores sociales, pero eso excede los alcances de estas páginas.

Corresponde ahora distinguir y analizar tres pasajes especialmente relevantes:

Primero. En los que llama mentirosos a los periodistas.

No procede pronunciarse sobre quién lleva razón sobre el fondo del asunto (ya he dicho hasta la saciedad, en el voto salvado, que a mi juicio debió conocerse en la jurisdicción contencioso-administrativa), pero es claro que en el marco de una sociedad democrática y pluralista no cabe llamar mentiroso a quien disiente, pues eso –además de denigratorio– ahoga el debate público, desestimula la libre circulación de ideas y opiniones. Por eso, si se estima que una persona o grupo de personas falta a la verdad y que eso tiene consecuencias relevantes –además de decirlo públicamente, pero sin censurar–, bien se pueden utilizar los cauces que el ordenamiento jurídico ofrece para zanjar la cuestión. Pero desacreditar a las personas de un modo tan beligerante no es solución, mucho menos lo es en una sociedad democrática.

Lo propio del periodismo es comunicar lo que se entiende que es veraz y justo. Por esa razón, llamar mentirosos a los periodistas significa calificarlos carentes de una cualidad que por su condición deberían tener. Es decir, cuando es dirigido a los periodistas, ese adjetivo adquiere una connotación particularmente peyorativa y es, sin duda, una censura.

Segundo. En los que afirma que La Nación, y por tanto los periodistas que trabajan en ese medio, han difamado a la patria y a los costarricenses.

El contexto de esto es el siguiente. El cierre del Parque Viva fue un hecho noticioso que fue recogido en prestigiosos periódicos latinoamericanos, bajo los siguientes titulares:

“Gobierno de Costa Rica cierra Parque Viva tras ataque de Nombre51 al diario ‘La Nación’”.

“Gobierno de Costa Rica cierra Parque Viva en medio de ataques del Nombre138 al diario ‘La Nación’”.

“El gobierno de Costa Rica atacó a uno de los principales medios del país y luego cerró un estadio de esa empresa”.

Entonces, el señor Nombre138 estima que el hecho de que tales medios y otros hayan dado cuenta del cierre del Parque Viva con un enfoque coincidente con el de La Nación, y sus periodistas, responde a las gestiones de ellos ante tales medios. Si así fuera, ¿porque qué sería eso reprochable? Tanto los periodistas de La Nación como los de otros medios son libérrimos para comunicar la noticia desde su ángulo. Y ¿por qué es deleznable que el periódico La Nación y sus periodistas busquen alianzas fuera de las fronteras? Este proceder es natural, lógico, comprensible, y no parece que por sí mismo suponga “difamación” de la patria y de los costarricenses, entre otras cosas, porque ni “patria” ni “costarricenses” son categorías o términos que se identifican con “gobierno”. De nuevo, esa desacreditación tan gravosa de los recurrentes constituye una censura que cercena el ejercicio de su libertad de expresión.

Tercero. En el que dice que lo manifestado en esa conferencia de prensa responde a su derecho a respuesta, que cree que le habrían negado.

Vale advertir que en ese pasaje no pronuncia “la palabra”: “Ustedes saben la palabra, yo me la voy a callar”; pero no es aventurado afirmar que alude a aquella que ha evitado decir desde que es Nombre138 Nombre01. Esto por tres motivos: la supresión no significa que no aluda a ella; la suprime porque es denigratoria; la palabra parece evocar inequívocamente una palabra que los demás saben que es aquella que en su momento dijo que se refería también al periódico La Nación. Pero como lo anterior es solo una tríada de conjeturas, basta referirse a otro aspecto de ese pasaje: a la presunción de que el periódico no acogería su derecho a respuesta. Al respecto es obligado decir que bajo esa lógica se socaban las bases de un Estado de Derecho, pues es tomarse la justicia por propia mano. Otra cosa es que en la conferencia de prensa el mandatario estime oportuno hacer las aclaraciones y mostrar los motivos de la divergencia con el periódico, pero no es jurídicamente procedente que la justificación de esto se base en la presunción del incumplimiento, por parte del periódico y de quienes allí laboran, de lo establecido en los artículos 66 y siguientes de la LJC, relativo al derecho de rectificación y respuesta.

Esas manifestaciones Claro que toda autoridad, y por supuesto el señor presidente, puede utilizar los foros que tenga a su disposición para aclarar, contrastar, negar lo dicho por los periodistas; pero lo procedente es hacerlo en el marco del respeto, propio de una sociedad pluralista y que va en consonancia con nuestra tradición democrática.

Sobre esto último es llamativo que prácticamente no hay jurisprudencia sobre esta temática. Quizá esto se debe a que la tónica en este país hasta la fecha nunca ha sido que los funcionarios públicos ejerzan una censura de esta naturaleza ni con periodistas de La Nación ni con los de [81][82][83] En vista de que por razones procesales no es posible conocer de las demás manifestaciones que son hechos públicos y notorios y son parte del contexto de tensión ya mencionado, tampoco es factible jurídicamente que me pronuncie sobre la existencia o no de un patrón de conducta sobre el particular.

Conclusión

Es posible concluir que las manifestaciones del Nombre138 hechas el 13 de julio en la conferencia de prensa, que son parte del contexto referido por los recurrentes, constituyen ejemplos de censura directa, manifiesta, aunque relativa, y por ello son lesiones directas a la libertad de expresión de los recurrentes, por lo que estimo que procede declarar con lugar el recurso de amparo respecto de este extremo.

VI. Reflexiones sobre el expediente y la sentencia

En vista de que no me pronuncio sobre los actos administrativos impugnados, esto es, la orden sanitaria y el oficio conexo, pues estimo que esta Sala no es competente para conocer de ellos en el marco de este recurso de amparo, no haré referencia a esos actos administrativos en sí mismos, es decir, si son o no arbitrarios. Sin embargo, me parece pertinente hacer unas consideraciones sobre el expediente y la sentencia. Ello permitirá confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso idóneo para resolver este asunto.

El dilema: “ordinariar” el amparo o respetar su carácter sumario El presente caso puso a la Sala Constitucional en una disyuntiva: desnaturalizar el recurso de amparo, transformándolo en un proceso ordinario –lo que de manera coloquial se llama “ordinariar” el amparo– o resolver sin todos los elementos necesarios. Por lo visto, la mayoría quiso salvar en lo posible la naturaleza sumaria del amparo. En efecto, aunque esta sentencia es voluminosa, hay motivos para estimar que respecto del examen de los actos impugnados se dieron dos tipos de falencias: uno en el plano probatorio y otro referido a las partes allegadas al proceso. Esto es lo que de inmediato paso a mostrar.

Sobre los aspectos probatorios Es preciso recordar que el recurso de amparo es sumario por naturaleza. Esto en palabras de la Sala, que por cierto todas las semanas utiliza en sus rechazos de plano, significa lo siguiente:

“[La finalidad del recurso de amparo es brindar tutela oportuna contra infracciones o amenazas a los derechos y libertades fundamentales, no servir como instrumento genérico por medio del cual sea posible accionar contra cualquier otra clase de quebrantos constitucionales o legales. Consecuentemente, la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de turbación— a uno o más de los derechos o garantías contemplados en la Carta Política o en los instrumentos internacionales de derechos humanos suscritos por el país, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada.

Lo anterior, en doctrina, es conocido como el contenido mínimo esencial del derecho, el cual es vulnerado, por ejemplo, cuando se condiciona el ejercicio del derecho que sea, al cumplimiento de condiciones, presupuestos o requisitos de tal naturaleza que, en la práctica, hacen materialmente imposible o nugatorio su uso. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo. Se ha dicho que “…en esencia, la idea básica puede estar en la distinción entre una lesión directa y otra indirecta de los derechos fundamentales. En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derechos fundamentales, pero cuando se trate de una lesión simplemente indirecta, por existir dentro del aparato estatal, órganos que pueden y deben resguardar esos derechos y reparar su violación, les corresponde a ellos conocer y no a esta Sala...” (Sentencia N° 1610-90 de las 15:03 horas del 9 de diciembre de 1990).

Esto último pone de relieve el motivo por el cual el proceso de amparo es de carácter eminentemente sumario –es decir, breve y sencillo– y su tramitación no es compatible con la práctica de diligencias probatorias lentas y complejas, o con la necesidad de entrar previamente a examinar –con carácter declarativo– si los derechos de rango infra constitucional que las partes citan como parte del elenco fáctico del recurso de amparo o del informe de ley, según sea el caso, existen en realidad” (sentencia 2021-001965; el destacado no es del original; estas líneas jurisprudenciales son constantemente repetidas por este Tribunal, y por citar algunos ejemplos, vid. las sentencias 2018-18079, 2019-17891 y 2020-12053).

Sin embargo, por las características de los actos aquí impugnados, se hacía necesario un riguroso análisis y contraste de amplia prueba técnica y criterios de las autoridades recurridas, a saber: los permisos otorgados por la Unidad de Permisos de la Dirección General de Ingeniería de Tránsito del MOPT; las condiciones en las que fue otorgado el permiso sanitario de funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 por el Ministerio de Salud; las autorizaciones de aforo dadas por el Área Rectora de Salud Alajuela 2 del Ministerio de Salud ?oficios MS-DRRSCN-DARSA2-4070-2021 del 16 de diciembre de 2021 y MS-DRRSCN-DARSA2-0163-2022 del 20 de enero de 2022?; el acta de inspección MS-DRRSCN-DARSA2-1639-2022 y el informe resultado de la inspección MS-DRRSCN-DARSA2-1641-2022 del 5 de julio de 2022 emitidos por el Área Rectora de Salud de Alajuela 2; el oficio DVT-DGIT-2022-339 del MOPT, que hizo referencia a las condiciones viales de la zona y que fue contundente al asegurar que, en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado; los criterios técnicos de los expertos del Comité Asesor Técnico de Concentraciones Masivas, que está integrado, entre otros, por representantes de la Comisión Nacional de Emergencias, el Benemérito Cuerpo de Nombre140 y la Cruz Roja Costarricense.

De paso, cabe recordar que en un primer momento la orden sanitaria se dictó “hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los criterios técnicos emitidos por el Benemérito Cuerpo de Nombre140 de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud”.

Además, correspondía valorar diversos criterios técnicos recabados por las autoridades competentes. Así, entre otros, los siguientes que parecen tener relevancia: el oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 del 10 de julio de 2022, suscrito por el subdirector regional de la Dirección de la Fuerza Pública de Alajuela, del que se desprende que la Fuerza Pública “ha venido enfrentando una situación de entorpecimiento en la atención de incidentes de carácter policial, en el perímetro externo inmediato del Parque Viva, situado en Rincón Chiquito en el distrito de La Guácima de Alajuela, en momentos en que se rea Todos esos son informes mencionados en la sentencia, pero en ella no se observa una valoración pormenorizada sobre los mismos, como seguramente habría sido lo procedente de cara a lo que la mayoría se propuso al conocer de los actos impugnados: determinar si si el acto no era arbitrario, aunque se hubiese probado una afectación a los recurrentes derivada de dicho acto, no habría sustento para declarar con lugar el recurso por lesión a la libertad de expresión. Por eso se puede afirmar que, si se iba a hacer un examen por el fondo, era del todo pertinente el análisis sobr Sobre las partes allegadas al [84] De la lectura de la sentencia, se advierte la ausencia de muchos sujetos involucrados de algún modo elitis?.

Muchas de esas autoridades pudieron haber sido integradas en calidad de recurridos, pues, como se sabe, en el trámite de un el amparo, el órgan[85][86][87] Entonces muchas de las autoridades mencionadas pudieron estar como recurridos o como simples informantes –en el contexto de una prueba para mejor resolver–. Esto último incluso en el caso de que constaran oficios suscritos por esas autoridades.

En ese sentido hay otras autoridades que también pudieron haber nutrido el análisis de la cuestión. Por ejemplo, la Contraloría General de la República, que rindió un informe sobre la eficacia y la eficiencia en el uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; el Ministerio de Seguridad Pública y, particularmente, la Dirección General de la Fuerza Pública, por sus informes técnicos tan contundentes. Lo mismo cabría señalar del Instituto Nacional de Vivienda y Urbanismo (INVU), que emitió un informe, e incluso de la Secretaría Técnica Nacional Ambiental, que afirmó que el local de Parque Viva contó con una viabilidad ambiental únicamente para mejoras en el autódromo.

Con el fin de realizar un análisis cabal de la situación planteada, habría sido necesario examinar aspectos que no son propios de un recurso de amparo, por ejemplo: la legitimidad de una denuncia anónima; la supuesta irregularidad en la diligencia y premura de las conductas administrativas; la necesidad, oportunidad y conveniencia de emitir una orden sanitaria en aras de proteger la vida y salud humanas, supeditada también la recolección de mayores elementos técnicos que confirmaran la decisión; los alcances de la orden sanitaria y del oficio conexo; la vigencia de los permisos sanitarios y el cumplimiento de los aforos dispuestos por las autoridades del Ministerio de Salud; la competencia de esas autoridades para ordenar la presentación de una propuesta de mejora del flujo vial para la realización de eventos masivos; la responsabilidad de las empresas privadas en la solución de los problemas de colapso vial derivadas de actividades comerciales ejecutadas por ellas mismas.

También, seguramente, valorar el adecuado control del desarrollo urbano y de la emisión de permisos sanitarios y de construcción en la zona en cuestión. Adicionalmente, determinar las causas objetiva Debe tenerse presente que los recurrentes argumentan que la orden sanitaria se ejecutó de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Bomberos, relativos a la capacidad de la vía de acceso al establecimiento, y que estos fueron aportados y comunicados días después del dictado de esa orden y que, además, resultan cuestionables. Esos señalamientos confirman que lo alegado y lo pretendido requería un juicio plenario en el que, al evacuar toda la prueba pertinente, fuera posible analizar también los cuestionamientos realizados a los informes técnic[88] Todo lo que he consignado aquí, como se desprende del título de este acápite, pone en evidencia el severo dilema al que estuvo sometido este tribunal: “ordinariar” el recurso de amparo, para evacuar y examinar toda la prueba pertinente, o resolver sin todos los elementos necesarios para efectuar un análisis riguroso y pormenorizado de la cuestión, como esta lo demandaba.

Esto último, por cuanto no soloestaba de por medio el resguardo de la libertad de expresión que se alegaba infringida, sino también el derecho de los habitantes a que se proteja su salud, su integridad física y su vida.

En mi voto salvado he mostrado que ese dilema se resolvía con solo que la Sala hubiese respetado la naturaleza sumaria del proceso de amparo, continuando así con su sólida jurisprudencia sobre el particular. De ese modo, habría declarado que este conflicto debió residenciarse en las vías ordinarias de la legalidad. Pues bien, ahora, la atenta lectura de la sentencia me lleva a confirmar que para determinar con certeza si los actos impugnados fueron arbitrarios, infundados o desproporcionados ?tal y como lo afirma la mayoría de la Sala? lo procedente era que este asunto fuera decidido en la vía ordinaria, luego de un examen integral de la situación y de todos los elementos probatorios acá esbozados. Al haberse analizado el objeto impugnado en un proceso sumario como el amparo, lamentablemente, están ausentes diversos elementos, en el plano probatorio y en el argumentativo, que habrían sido necesarios para arribar a la conclusión que la sentencia presenta. Como he dicho, se echa en falta que al menos se integrara a todas las partes involucradas en el fundamento técnico de la orden sanitaria cuestionada y que se desmintieran con precisión los argumentos técnicos invocados en dicho acto administrativo.

Es oportuno subrayar que, según el criterio de la mayoría, las autoridades recurridas ?al dictar la orden sanitaria? debieron “realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo”. No obstante, la sentencia no demuestra previamente en qué medida concretamente la orden sanitaria había afectado los derechos fundamentales de los periodistas amparados, esto es, si había una incidencia real sobre su libertad de expresión.

Finalmente, es plenamente justificado que los recurrentes y la sentencia tomen en cuenta manifestaciones del señor Nombre138 cuando era candidato, pues eso ayuda a contextualizar los agravios que se acusan. Pero es llamativo que la sentencia valore manifestaciones del mandatario ulteriores a la fecha de la interposición del recurso de amparo.

Las consecuencias de la anulación de los actos impugnados La mayoría de la Sala dispuso anular la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022, así como lo dispuesto en el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, que la confirmó.

Esto hace que la situación sobre la problemática de acceso al Parque Viva, que es de conocimiento público, que ni los recurrentes ni los dueños del inmueble han negado, y que está reflejada en la gran cantidad de informes técnicos citados, retorne al momento en el que se presentó la denuncia ante las autoridades del Ministerio de Salud. De manera que, de haber algún siniestro que afecte la salud pública o la integridad de las personas, tal parece que la responsabilidad será compartida por la mayoría de la Sala.

Reitero que tanto el examen sobre la legitimidad de los actos impugnados como la ponderación de los derechos e intereses legítimos de los vecinos y usuarios bien pudieron llevarse a cabo ante la jurisdicción contencioso-administrativa. También porque ahí, mediante el ejercicio de la justicia cautelar, se habrían podido dictar medidas que modularan los efectos de la suspensión del acto e impusieran condiciones que procuraran proteger a terceros. En el sub lite, se ordenó sin más la anulación de los actos administrativos, omitiéndose toda condición que permitiera de alguna manera resguardar tales derechos e intereses.

En la sentencia, por un lado, se hace referencia al avance de un plan para dar solución al congestionamiento vial y, por otro, al anular los actos impugnados, no se indica prevención alguna sobre la necesidad de llevar a término la ejecución de las medidas que resuelvan definitivamente dicha problemática. Consignar esa prevención, al menos, habría tenido un valor simbólico: reflejar que la Sala es consciente de que realmente existe un riesgo para los vecinos y usuarios del Parque Viva.

Sobre el alcance de la condenato Finalmente, me permitiré hacer unos comentarios sobre la condenatoria en daños y perjuicios. Como se recordará, en el escrito de interposición los recurrentes manifestaron que renunciaban a estos. Claro está, si el recurso fue declarado con lugar, la Sala no está legalmente habilitada para omitir esa condenatoria. Pero, ciertamente, el reclamo de estos daños y perjuicios es renunciable. Por otro lado, a la luz del escrito de interposición y de la lógica de la sentencia, debe entenderse que la condenatoria es solo en beneficio de los recurrentes y solo por la lesión a la libertad de expresión que se decl[89] VII.Conclusión En atención a los argumentos antes expuestos, me pronuncio así sobre este recurso de amparo: Lo declaro con lugar respecto de la libertad de expresión, por cuanto se acreditaron manifestaciones del recurrido que configuran actos de censura directa, manifiesta, aunque relativa, que lesionan esa libertad de los recurrentes. Lo declaro sin lugar respecto de la anulación de la orden sanitaria y del oficio conexo porque, además de no acreditarse la legitimación activa, no procede conocer de esos actos en esta jurisdicción.

Nombre134 1 [1] Artículo 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.

[2] Artículo 13. Libertad de Pensamiento y de Expresión.

1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección (…).

3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.

[3] Artículo 11. Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella. Deben prestar juramento de observar y cumplir esta Constitución y las leyes. La acción para exigirles la responsabilidad penal por sus actos es pública. La Administración Pública en sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas.

[4] Artículo 33. Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana.

[5] Posteriormente hacen más alegatos en la misma línea, que serán transcritos en el voto salvado.

[6] En las razones diferentes se hará una breve referencia a estos.

[7] A la luz de la petitoria, ha de entenderse que se refieren a la orden y al oficio conexo. En adelante, cuando se habla de orden sanitaria, se alude también al oficio conexo.

[8] Al respecto: Artículo 38 de la LJC. En el recurso de amparo se expresará, con la mayor claridad posible, el hecho o la omisión que lo motiva, el derecho que se considera violado o amenazado, el Nombre141 del servidor público o del órgano autor de la amenaza o del agravio, y las pruebas de cargo. // No será indispensable citar la norma constitucional infringida, siempre que se determine claramente el derecho lesionado, salvo que se invoque un instrumento internacional. // El recurso no está sujeto a otras formalidades ni requerirá autenticación. Podrá plantearse por memorial, telegrama u otro medio de comunicación que se manifieste por escrito, para lo cual se gozará de franquicia telegráfi [9]a.

Artículo 42. Si el recurso fuere oscuro, de manera que no pudiere establecerse el hecho que lo motiva, o no llenare los requisitos indicados, se prevendrá al recurrente que corrija los defectos dentro de tercero día, los cuales deberán señalarse concretamente en la misma resolución. Si no los corrigiere, el recurso será rechazado de pla [10]o.

Artículo 48. Toda persona tiene derecho al recurso de hábeas corpus para garantizar su libertad e integridad personales, y al recurso de amparo para mantener o restablecer el goce de los otros derechos consagrados en esta Constitución, así como de los de carácter fundamental establecidos en los instrumentos internacionales sobre derechos humanos, aplicables a la República. Ambos recursos serán de competencia de la Sala indicada en el artículo [11]0.

Artículo 2. Le corresponde específicamente a la jurisdicción constitucional: 1. Garantizar, mediante los recursos de hábeas corpus y de amparo, los derechos y libertades consagrados por la Constitución Política y los derechos humanos reconocidos por el Derecho Internacional vigente en Costa Ri [12]a.

En adelante, al menos en este segmento, cuando se hable de derechos fundamentales, se deberá entender que también se hace referencia a las libertades públic [13]s.

Esas consideraciones se han repetido textualmente en al menos 1734 resoluciones de la Sala Constitucional. Cfr. https://nexuspj.poder-judicial.go.cr. Y, en similar sentido, entre muchísimas otras, vid. las sentencias 2006-3919, 2017-17948, 2021-18328, 2021-273 [14]2.

Por lo demás, esta sentencia es reciente, lo que muestra que se trata de una línea jurisprudencial que atraviesa toda la historia de este tribunal. Sin dificultad alguna se podrían encontrar en similar sentido algunas aún más recientes. Cfr. https://nexuspj.poder-judicial.go [15]cr Artículo 44 de la LJC. (…) Los informes se considerarán dados bajo juramento ( [16]).

Entre muchas otras, vid. las sentencias 1995-4169, 2000-5401, 2022-0022 (reiterada durante el 2022 en al menos 16 sentencias), 2022-59 [17]1.

La sentencia dice: “En ese particular, cabe destacar que esta Sala ha sostenido también que las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud pueden ser revisables ante esta jurisdicción, en casos excepcionales, determinados de forma concreta por su ineludible directa relación con las libertades o derechos fundamentales esenciales en el sostenimiento del sistema democrático” (considerando IX, punto A, p. 19 [18]).

Afirmo esto no porque los periodistas de La Nación sean ciudadanos de primera categoría y los demás no, sino porque de los alegatos y de los hechos públicos y notorios se puede advertir una tensión entre el periódico La Nación y el Nombre138 de la República, y ese no es un dato menor ni soslayable. Justamente debe ser valorado en el contexto la necesaria protección de la libertad de expresión en un Estado democrático y pluralist [19].

Digo esto porque estimo que había suficientes elementos para haber rechazado el recurso en esa fase, pero, aunque se considerara que esas dudas debían resolverse a favor de los recurrentes, tal como ahora se verá, la Sala en la fase de conocimiento pudo haber determinado que no era competente. Eso es parte del núcleo de este voto salvado parcia [20].

Se deja de lado lo relativo a la legitimación pasiva, porque para el presente caso no tiene mayor relevancia: es incuestionable que los recurridos la tiene [21].

Ellos añaden “y el derecho de los costarricenses a recibir informaciones y opiniones sobre asuntos de interés público” (escrito de interposición, p. 1), pero eso no corresponde protegerlo en un amparo, porque la Sala Constitucional siempre ha exigido que los amparados sean sujetos determinados o, al menos, claramente determinables; y la categoría “los costarricenses” es excesivamente amplia y convertiría el recurso de amparo en una acción popular. Seguramente, porque esto es una obviedad jurídica, la sentencia ni siquiera se ocupa de referirse a eso; pero yo he preferido hacerlo. Por lo demás, esa frase recién citada es traducida en el auto de curso en los siguientes términos: “el derecho del público a conocer informaciones de interés de la sociedad” (auto de curso, 29 de julio de 2022, p. 12), que, además, está así recogida en el resultando 1 de la sentencia. Asunto distinto que la libertad de expresión tenga de suyo una dimensión colectiva, pero esa no es la que se protege mediante el recurso de amparo. La existencia de tal dimensión sirve, y no es poco, para cualificar la importancia de respetar la dimensión individual del derecho a la libertad de expresión de los periodista [22].

Todo lo anterior es reiterado parcial o totalmente en diversas sentencias. A modo de ejemplo, vid. sentencias 2017-2350, 2018-1210, 2019-11129, 2020-228 [23].

Para no extender las citas, se ha suprimido gran parte los pasajes en los que –como se ha advertido– la Sala, al conocer por el fondo, reitera lo que ha dicho en esos rechazo [24].

Artículo 7. Le corresponde exclusivamente a la Sala Constitucional resolver sobre su propia competencia, así como conocer de las cuestiones incidentales que surjan ante ella y de las prejudiciales conexa [25].

Artículo 9. La Sala Constitucional rechazará de plano cualquier gestión manifiestamente improcedente o infundada. // Podrá también rechazarla por el fondo en cualquier momento, incluso desde su presentación, cuando considere que existen elementos de juicio suficientes, o que se trata de la simple reiteración o reproducción de una gestión anterior igual o similar rechazada; en este caso siempre que no encontrare motivos para variar de criterio o razones de interés público que justifiquen reconsiderar la cuestión. // Asimismo, podrá acogerla interlocutoriamente cuando considere suficiente fundarla en principios o normas evidentes o en sus propios precedentes o jurisprudencia, pero si se tratare de recursos de hábeas corpus o de amparo deberá esperar la defensa del demandad [26].

Artículo 153. Corresponde al Poder Judicial, además de las funciones que esta Constitución le señala, conocer de las causas civiles, penales, comerciales, de trabajo y contencioso-administrativas, así como de las otras que establezca la ley, cualquiera que sea su naturaleza y la calidad de las personas que intervengan; resolver definitivamente sobre ellas y ejecutar las resoluciones que pronuncie, con la ayuda de la fuerza pública si fuere necesari [27].

Esa sentencia tiene muchos otros pasajes densos e interesantes y también atinentes, pero, para lo que aquí interesa, se han transcrito solo esos pasajes especialmente significativo [28].

Artículos 128 y ss. de la LGA [29].

Artículos 140 y ss. de la LGA [30].

Artículo 10. 1) Estarán legitimados para demandar: a) Quienes invoquen la afectación de intereses legítimos o derechos subjetivos (…). 4) Cualquier interesado que haya sido afectado en sus intereses legítimos o derechos subjetivos, podrá pedir la declaratoria, el reconocimiento o el restablecimiento de una situación jurídica, con reparación patrimonial o sin ell [31].

Artículo 31. 1) El agotamiento de la vía administrativa será facultativo, salvo para lo dispuesto en los artículos 173 y 182 de la Constitución Política.

(El primer artículo se refiere a los acuerdos municipales y el segundo dice: Artículo 182. Los contratos para la ejecución de obras públicas que celebren los Poderes del Estado, las Municipalidades y las instituciones autónomas, las compras que se hagan con fondos de esas entidades y las ventas o arrendamientos de bienes pertenecientes a las mismas, se harán mediante licitación, de con la ley en cuanto al monto respectivo [32].

Artículo 31. No será necesaria la reposición ni ningún otro recurso administrativo para interponer el recurso de ampar [33].

Artículo 21.- La medida cautelar será procedente cuando la ejecución o permanencia de la conducta sometida a proceso, produzca graves daños o perjuicios, actuales o potenciales, de la situación aducida, y siempre que la pretensión no sea temeraria o, en forma palmaria, carente de serieda [34].

Artículo 22.- Para otorgar o denegar alguna medida cautelar, el tribunal o el juez respectivo deberá considerar, especialmente, el principio de proporcionalidad, ponderando la eventual lesión al interés público, los daños y los perjuicios provocados con la medida a terceros, así como los caracteres de instrumentalidad y provisionalidad, de modo que no se afecte la gestión sustantiva de la entidad, ni se afecte en forma grave la situación jurídica de terceros. // También deberá tomar en cuenta las posibilidades y previsiones financieras que la Administración Pública deberá efectuar para la ejecución de la medida cautela [35].

Artículo 23. Una vez solicitada la medida cautelar, el tribunal o el juez respectivo, de oficio o a gestión de parte, podrá adoptar y ordenar medidas provisionalísimas de manera inmediata y prima facie, a fin de garantizar la efectividad de la que se adopte finalmente. Tales medidas deberán guardar el vínculo necesario con el objeto del proceso y la medida cautelar requerida.

Artículo 24. 1) El tribunal o el respectivo juez o la jueza dará audiencia a las partes hasta por tres días, acerca de la solicitud de la medida, salvo lo previsto en el artículo siguiente, de este Código. 2) Transcurrido ese plazo, el tribunal o el respectivo juez o jueza resolverá lo procedente, excepto si estima necesario realizar una audiencia oral, en cuyo caso la realizará en un plazo máximo de tres días hábile [36].

Vid., como ejemplos, las siguientes resoluciones: TCASVI250-2010: confirmó la tutela preventiva del medio ambiente ante las posibles afectaciones que podía genera la ejecución de la modificación de un Plan Regulador; TCASII 108-2016: confirmó las medidas cautelares en pro del desarrollo sostenible y el derecho a un medio ambiente sano y ecológicamente equilibrado (terrenos en disputa); TCA 552-2020: suspendió los decretos relacionados con la restricción vehicular sanitaria; TACASI 17- 2018: revocó la resolución del TCA que denegó la medida cautelar y en su lugar se ordenó suspender los efectos de una medida de salvaguarda arancelaria a las importaciones de arroz pilad [37].

TCA (sin número conocido) de las 21:10 horas del 07 de octubre de 2022: suspendió de manera inmediata de los efectos del decreto denominado “Reforma Arancel de Servicios Profesionales de Consultoría para Edificaciones y Reglamento de Tarifas de Honorarios para los Profesionales de Agrimensura, Topografía e Ingeniería Topográfica” (honorarios profesionales). Solo pro informatione cabe agregar que de manera posterior a la votación del presente amparo, se han tomado otras resoluciones similares: TCA (sin número conocido) del 28 de octubre de 2002 (Expediente 22-005972-1027-CA); y TCA 671-2022 del 3 de noviembre de 2022 (Expediente 22-005678-1027-CA) que suspendieron los efectos derivados del Decreto Ejecutivo N°. 43704-JP-MEIC del 14 de setiembre de 2022 (honorarios profesionales de abogados y abogadas [38].

Artículo 82. 1) La jueza o el juez ordenará y practicará todas las diligencias de prueba necesarias, para determinar la verdad real de los hechos relevantes en el proceso. 2) Los medios de prueba podrán ser todos los que estén permitidos por el Derecho público y el Derecho común. 3) Las pruebas podrán ser consignadas y aportadas al proceso, mediante cualquier tipo de soporte documental, electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías. 4) Todas las pruebas serán apreciadas, de conformidad con las reglas de la sana crítica. 5) Las pruebas que consten en el expediente administrativo, cualquiera sea su naturaleza, serán valoradas por la jueza o el juez como prueba documental, salvo que sea cuestionada por la parte perjudicada por los medios legales pertinente [39].

Artículo 60.

• 1)En caso de que el juez tramitador, de oficio o a gestión de cualquiera de las partes, estime que el asunto bajo su instrucción reviste urgencia o necesidad o es de gran trascendencia para el interés público, directamente lo remitirá al conocimiento del tribunal de juicio al que por turno le corresponda, para que este decida si se le da trámite preferente, en los términos de este artículo, mediante resolución motivada que no tendrá recurso alguno.
• 2)Si el tribunal estima que el trámite preferente no procede, devolverá el proceso al juez tramitador, para que lo curse por el procedimiento común.
• 3)De dársele trámite preferente, se dará traslado de la demanda y se concederá un plazo perentorio de cinco días hábiles para su contestación. Cuando resulte necesario, el tribunal dispondrá celebrar una única audiencia en la que se entrará a conocer y resolver sobre los extremos a que alude el artículo 90 de este Código, se evacuará la prueba y oirán conclusiones de las partes. De no haber pruebas por evacuar se prescindirá de la audiencia oral y pública. Únicamente cuando surjan hechos nuevos o deba completarse la prueba a juicio del tribunal, podrá celebrarse una nueva audiencia.
• 4)El señalamiento de la audiencia tendrá prioridad en la agenda del tribunal.
• 5)Si la conversión del proceso se produce en una oportunidad procesal posterior a la regulada en el párrafo tercero de este artículo, el tribunal dispondrá el ajuste correspondiente a las reglas de dicho párrafo.
• 6)La sentencia deberá dictarse en un plazo máximo de cinco días hábiles, contados a partir del día siguiente a aquel en que se decidió darle trámite preferente al proceso o, en su caso, a partir de la celebración de la última audiencia.
• 7)En caso de ser planteado, la resolución del recurso de casación tendrá prioridad en la agenda del Tribunal de Casación de lo Contencioso-Administrativo o de la Sala Primera de la Corte Suprema de Justicia, según corresponda. El recurso deberá resolverse en un plazo de diez días hábiles [40] A los que se podría añadir otra norma de la Constitución: Artículo 70. Se establecerá una jurisdicción de trabajo, dependiente del Poder Judicia [41].

Por ejemplo, el recurso de amparo electoral es de origen pretoriano, aunque luego fue previsto en el Código electoral; el conocimiento de la mora administrativa, después de la promulgación del CPCA, se deja en manos de la jurisdicción contencioso-administrativa; el examen sobre variados asuntos laborales, luego de la Reforma Procesal Laboral, se residencia en esa vía; los temas de autodeterminación informativa, luego de la entrada en vigor de la respectiva ley, son derivados a la Agencia de Protección de Datos de los Habitantes (Prodhab); entre otro [42].

Artículo 46. 1. Para que una petición o comunicación presentada conforme a los artículos 44 ó 45 sea admitida por la Comisión, se requerirá: a) que se hayan interpuesto y agotado los recursos de jurisdicción interna, conforme a los principios del Derecho Internacional generalmente reconocido [43].

Artículo 46. 2. Las disposiciones de los incisos 1 a) y 1 b) del presente artículo no se aplicarán cuando: a) no exista en la legislación interna del Estado de que se trata el debido proceso legal para la protección del derecho o derechos que se alega han sido violados; b) no se haya permitido al presunto lesionado en sus derechos el acceso a los recursos de la jurisdicción interna, o haya sido impedido de agotarlos, y c) haya retardo injustificado en la decisión sobre los mencionados recurso [44].

Luego se verá que este, a su vez, pertenece a Medio [45].

Posteriormente se transcribirán otros alegatos que hacen en la misma líne [46].

Las frases entre comillas simples provienen de Corte IDH. Caso Nombre136 Vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 28 de enero de 2009. Serie Nombre143 No. 194, párrafo 139, según el mismo escrito de interposición [47]anota.

MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 y 66, respectiv [48]mente.

https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financiero [49].html En los tres casos, los últimos son los del periodo 202 [50]-2021.

El último es el del segundo semestre de [51] 2022.

Informe de Accionistas 2020-2021 (cuyo Nombre141 dentro del texto es Informe Anual La Nación y Subsidiarias - 2020-2021), MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 y 66, respec [52]ivamente.

Nom re06 [53]., p. 65 Nombre06 [54]., . 67.

Nombre06 [55]., p. 66.

MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), (2 20, p. 67; 202 [56], p. 66).

AF-INFORME ANUAL-LN- 2018-19.pdf - Google Drive (2018, p. 64; 2019, p. 71). MEMORIA 2020-2021_DIGITAL.pdf (nacion.com) (2 20, p. 67; 202 [57], p. 66).

Recuérdese lo que dicen y que ya se ha transcrito en su momento: “…se nos advirtió de la destrucción de las estructuras que nos permiten ejercer el periodismo independiente. // Parque Viva es una de esas estructuras, en el caso de Grupo Nación” (escrito de interposici [58]n, p. 4).

Definición de principio iura novit curia - Diccionario panhispánico de español juríd [59]co - RAE Vid. resolución 1990-290 (consulta de constitucionalidad), sentencia 1992-3410 (acción e inconstituci [60]nalidad), Para facilitar el análisis vamos a suponer que ambos actos impugnados son igualmente arbitrarios o igualmente no arbitrarios, esto es, no que uno es arbit ario y el otro [61]sí lo es.

La Corte Suprema de los Estados Unidos ha aplicado este principio para resolver casos sobre libertad de expresión (United States vs. Nombre135, 1968) y libertad de religión (Employment Div. Dep. of Human esources vs. Nombre07 [62]mbre184, 1990).

Ciertamente también existe la posibilidad de que haya responsabilidad de la Administración por conducta lícita, pero eso es absolutamente excepcional. Al respecto, el artículo 194 de la LGAP establece: 1. La Administración será responsable por sus actos lícitos y por su funcionamiento normal cuando los mismos causen daño a los derechos del administrado en forma especial, por la pequeña proporción de afectados o por l intensidad excepcion [63]l de la lesión.

Corte IDH. Nombre136 vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 28 de enero de 2009. Ser [64]e Nombre143 No. 194.

Alude a ese caso solo para referirse a los límites de las declaraciones de los funcionarios públicos en una so iedad democrática. Cf [65]. sentencia, p. 266.

Corte IDH. Caso Nombre65 vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 6 e febrero de 2001. Se [66]ie Nombre143 No. 74.

Corte IDH. Caso Nombre67 vs. Paraguay. Fondo, Reparaciones y Costas. Sentencia de 3 de agosto de 2004. S [67]rie Nombre143 No. 111.

En un sentido muy similar, vid. Corte IDH. Caso Nombre137 vs. Chile. Fondo, Reparaciones y Costas. Sentencia de 22 d noviembre de 2005. S [68]rie Nombre143 No. 135.

Corte IDH. Caso Nombre144 y otros vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Se tencia de 28 de enero [69]de 2009. Serie Nombre143 No. 195.

Corte IDH. Caso Nombre162 y otros (Radio Caracas Televisión) vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y ostas. Sentencia de 2 [70] de junio de 2015. Serie Nombre143 No. 293.

Por cierto, en nuestro país, según el artículo 49 de la Constitución Política, ante un acto administrativo concreto, tal examen corresponde hacerlo a la jurisdicción contencioso-administrativa, tal como fue explicado en el voto salvado. Con esto quiero recordar de paso que, si se trataba de probar la desviación de poder alegada por los recurrentes, especialmente en un contexto con tanta complejidad técnica como el que está e la base del presente [71]recurso, el amparo no era la vía apropiada.

Naturalmente, si se trata de ponderar todos los intereses, también se deberían sopesar los efectos del acto o de su anulación en otros derechos de terceros (vida, integridad, salud) y en el interés público; pero, para efectos de estas reflexiones, c ntraré la atención en [72]los efectos sobre la libertad de expresión.

Bajo el supuesto de que el periódico depende financieramente del Parque Viva y de que los acto que recaen sobre aqu [73]l tienen consecuencias financieras en este.

Son arbitrarios o antijurídicamente lesivos. (No se está considerando aquí la arbitrariedad intrínseca que pueden ten r por ser faltos de a [74]guno de los elementos de validez del acto).

Los requisitos de validez: los elementos sustanciales: tanto los subjetivos ?competencia, legitimación e investidura? como los objetivos ?motivo, contenido y el fin?; y los elementos formales ?motivación, procedimiento empleado y las formas de manifestación del acto?. Vid. los artículos 128 y ss. de la LGAP. Sobre lo requisitos de eficac [75]a, vid. los artículos 140 y ss. de la LGAP.

Ciertamente el artículo 13.1 de la CADH dice: Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección. (El destacado no es del original). Pero, estimo que eso no desdice de las reflexiones arriba consignadas, pues parece que un análisis sobre el particular exigiría precisar los alcances de ese artículo en la libertad de expresión en general y en la lib rtad informativa o de [76]opinión realizada como actividad comercial.

Por lo demás, como se recordará, las dos sentencias de la Sala sobre supresión de la publicidad como medio indirecto de lesión a la libertad de expresión tienen en común que los actos arbitrarios recayeron directamente sobre los sujetos que comunicaban: en un caso, un programa de rad o (2015-1782) y, en e [77] otro, el periódico La Nación (2016-15220).

No hay duda de que los periodistas tienen, de suyo, legitimación activa respecto de las les ones por vías directa [78], aunque no las hayan aducido expresamente.

Consignado en la sentencia como hecho probado, b [79]jo el subtítulo otros hechos de interés 2).

Conferencia de prensa del 3 de agosto, minuto 44:22 y ss. Cfr. (1794) En Vivo | Conf rencia de prensa Cons [80]jo de Gobierno 3 de Agosto, 2022 - YouTube En adelante se anotará así el momento de la intervención dentro de la conferencia de prensa del 13 de julio de 2022, realizada en Casa Presidencia. Cfr. (1792) En Vivo | Conf rencia de prensa Cons [81]jo de Gobierno 13 de Julio, 2022 - YouTube El Universal, México, 8 de julio. https://www.eluniversal.com.mx/mundo/gobierno-de-costa-rica-cie ra-parque-viva-tras-a [82]aque-de-Nombre51-al-diario-la-nacion.

El Comercio, Perú, 8 de julio, https://elcomercio.pe/mundo/centroamerica/gobierno-de-costa-rica-cierra-parque-viva-en- edio-de-ataques-del-p [83]esidente-al-diario-la-nacion-noticia/ Nación, Argentina, 9 de julio, https://www.lanacion.com.ar/el-mundo/el-gobierno-de-costa-rica-ataco-a-uno-de-los-principa es-medios-del-pais-y- [84]uego-cerro-un-estadio-de-nid09072022/ Nótese que esta cita jurisprudencial recoge a su vez una que proviene de 1990, es decir, de los primerísimos momentos de la historia de la Sala y, sin dificultad, se podrían encontrar otr s en igual sentido, i [85]cluso anteriores a esa que es citada.

Vid.

os hechos probados de la sentencia:

6, 10, 11, 16, 18 y 2 [87].

Hecho probado de la sentencia 23.

Vid. l s hechos probados de [88]a sentencia: 26, 27, 28, 29, 30 y 31.

Este último supuesto, que es más excepcional, acaece cuando el órgano, con los elementos que tiene a disposición, estima que hay algún otro aspecto quizá apenas mencionado por las partes, que es conexo al objeto de la cuestión, y sobre el cual corresponde referirse. En ese supuesto de nuevo dará audi ncia a las partes par [89] que se refieran sobre el