File: 22-014229-0007-CO CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours and fifteen minutes on January thirteenth, two thousand and twenty-three.
Amparo action processed under file No. 22-014229-0007-CO, filed by Nombre114938, identity card CED45042; against the MINISTRY OF HEALTH and the MUNICIPALITY OF ESCAZÚ.
WHEREAS:
- 1Through a document received at the Secretariat of the Chamber at 10:20 hours on June 27, 2022, the petitioner files an amparo action against the Ministry of Health and the Municipality of Escazú. She states that she is an elderly adult, a resident of Escazú, who for several years has suffered from a problem of smoke contamination emanating from a wood-burning stove frequently used by her neighbor, Nombre82762, a situation that has affected her health due to the asthma attacks she has suffered. She notes that on June 23, 2020, she filed a complaint with the Ministry of Environment and Energy, which was assigned case number 21234-2020 and was referred to the Environmental Comptroller of that ministry and the environmental sector of the Municipality of Escazú for proper processing. She questions that it was not until February 12, 2021, that geologist Laura Villalobos Cárdenas from the Municipality of Escazú appeared at the location, conducted the first inspection, and issued official letter No. GA-101-2020 dated February 16, 2020, which stated: “(…) Por Lo Tanto, according to what was observed, the existing chimneys Do Not Comply with the provisions of the Construction Regulations.The property owners will be notified that they must make the respective modifications to comply with the Regulations. (…)”. She comments that on the day of the inspection, the approximate heights of the chimneys were measured with the aid of a distance meter, and it was determined that the tallest chimney has an approximate height of three point nine meters above the roof of the corridor where the stove and oven are located; furthermore, they are located at a distance of three point one hundred fifty-eight meters from the neighbor's property line to the west. She adds that according to the referenced document, the wood-burning stove and oven are located in the washbasin patio, behind the house, on the first level. She states that in official letter No. GA-101-2020, the offender was given a period of ten days to provide the Municipality of Escazú with the timeline for the remedial plan, and once executed, ten additional days to inform the municipality of the completion and result of the works; however, she accuses that the reported party, in response to the above, indicated she was willing to solve the problem, but within the timeframe she considered appropriate, approximately by the end of May 2021.She expresses that on March 12, 2021, the geologist from the Municipality of Escazú suggested she file a complaint with the Escazú Health Governing Area of the Ministry of Health, which she did, and the proceeding was assigned case number 16090-2021. She asserts that on March 30, 2021, Licenciada Laura Fajardo Soto carried out the first inspection on behalf of the Ministry of Health, and in this regard, official letter Identificacion173 was issued, which contained the same indications given by the municipal authorities. She points out that on August 14, 2021, she requested the presence of the Municipal Police at her home so they could observe the problem afflicting her, at which time record No. 000268 was drawn up, noting what was perceived. She questions that the respondent municipality and the Ministry of Health have taken no action to prevent her neighbor from continuing to use the wood-burning stove and oven that so affect her health, nor have they provided a solution to her complaint.She discourses that on December 9, 2021, she appeared at the offices of the Escazú Health Governing Area to request the file for case No. 16090-2021, in order to obtain copies of the notifications and official letters issued by that authority, as she was never notified of them. She narrates that on December 10, 2021, a second inspection was carried out by officials from the Municipality of Escazú and the Ministry of Health, an occasion on which a direct measurement of the chimney height was made, and based on the results obtained, the closure of the case and the archiving of the administrative file were determined. She adds that on December 14, 2021, official letter No. MS-RRSCS-DARSE-2287-2021 was issued, by which the file was closed and archived. She argues that faced with this situation, she consulted her engineers and geologists, who considered it unacceptable to close the matter, since, in their judgment, there were many technical errors in the measurement.She alludes that she filed an appeal against the decision before the authorities of the Ministry of Health; however, it was declared without merit. She expresses that due to the foregoing, she went to the Office of the Ombudsperson of the Republic, an authority that sent official letter No. 01024-2022-DHR to the Escazú Health Governing Area, urging the health authorities to assess the possibility of conducting a new inspection with the corresponding tests of the chimney use specifically at the resident's house, which was rejected by the health area. She accuses that the impact of the smoke on her property was never verified, and because of this, the case was closed. She states that at the beginning of March of this year, she received a call from the office of the Minister of Health, through which she was consulted about the appeal and was told that the head of the Ministry had reviewed her new documents and agreed to reopen the case through proceedings: HT-418-2022 and HT-431-2022, as case MS-DGS-0988-2022.She adds that on March 1, 2022, through official letter No. CA-2022-09, the Environmental Comptroller's Office of the Ministry of Environment and Energy demanded that the respondent municipality follow up on case No. 21234-2020, and as a result, on March 9, 2022, the local government conducted a new inspection again, regarding which official letter No. COR-GA-212-2022 was issued. She illustrates that, through document No. COR-GA-212-2022, the General Inspection Subprocess, the Environmental Management Subprocess, and the Department of Urban Planning and Control, all of the Municipality of Escazú, indicated that her neighbor does not have a permit or authorization to have or use the stove or the chimney and determined that: “(…) Within the 5-meter radius, the tallest building found is the Second Level, therefore it should be the reference point for defining the height of the chimneys (…)”.She adds that the cited document stated in its por tanto the following: “(…) • Based on what was observed in the chronology of events, as well as in legal support, based on the principle 'Indubio pronatura', in order to guarantee no impact on third parties and based on Article 50 of the Political Constitution, which establishes the right of inhabitants to a healthy and balanced environment, They may not use the chimneys until they Comply with the established regulations for their improvement and operation • To make the requested improvements, they must comply with the provisions of the Construction Law and its Regulations, and likewise must comply with the Municipality's permit procedures (…)”. She maintains that as a result of the foregoing, given the lack of corresponding permits, the municipality proceeded with the closure through notification No. 00511. She alleges that on March 14, 2022, the Director General of Health sent her an email with the information on the reopening of case No. MS-DGS-0988-2022 addressed to the Central South Health Area and the Escazú Health Governing Area.She mentions that, having observed no action regarding the matter, she consulted the office of the Minister of Health, and in this regard, through emails dated April 21 and 25, 2022, she was informed that she should take all the documentation to the Escazú Health Governing Area. She indicates that despite not being in optimal health conditions, on April 29, 2022, she appeared at the referenced area for the purpose of providing the documents reviewed by the Minister of Health that supported the reopening of the case “due to health impact caused by smoke generated by chimneys of one of her neighbors.” She notes that on April 29, 2022, it was recorded that a new reopening inspection had been carried out at the site, and regarding this proceeding, official letter No. MS-DRRSCS-DARSE-973-2022 was issued, which concluded by closing the case, and she was notified of this on May 2, 2022. She argues that on May 6, 2022, she filed a motion for reconsideration with a subsidiary appeal against the decision of the Ministry of Health authorities, which she addressed to the Central South Health Region Directorate.She alleges that on June 1, 2022, she was notified of the denial of the reconsideration and informed that the matter was forwarded to the Legal Affairs Directorate of the Ministry of Health and the office of the Minister to resolve the subsidiary appeal. She asserts that the smoke contamination situation persists and her health continues to be affected. She considers it absurd that the Ministry of Health has not considered the official letters issued by the Municipality of Escazú, which prohibit the existence, installation, use, and location of the chimneys in question due to the lack of authorization. She requests that the action be granted.
- 2By resolution issued at 11:02 hours on June 28, 2022, this matter was processed, and an audience was granted to the Director General of Health, the Regional Director of the Central South Health Governing Office, and the Director of the Escazú Health Governing Area, all from the Ministry of Health; as well as to the Mayor, the Coordinator of the General Inspection Subprocess, the Coordinator of the Environmental Management Subprocess, and the Head of the Department of Urban Planning and Control, all from the Municipality of Escazú, so they could address the facts under consideration in this action.
- 3Through a document added to the file at 08:55 hours on June 29, 2022, the petitioner reiterates the arguments described in the initial filing document. She requests that the action be granted.
- 4Melissa Ramírez Rojas, Guillermo Flores Galindo, and Adolfo Ortiz Barboza, in that same order Director General of Health, Director of the Central South Health Governing Regional Directorate, and Director of the Escazú Health Governing Area, all from the Ministry of Health, report under oath that the case at hand has been addressed technically, administratively, and legally (duly and timely) by the Ministerial Office, the Central South Health Governing Regional Directorate, and the Escazú Health Governing Area Directorate. They explain that, by express provision of numeral 6, subsections b) and c) of Executive Decree No. 40724-S, Organic Regulations of the Ministry of Health, handling complaints is the responsibility of local-level authorities as the political-operational level of the institution, with the Regional Directorate serving a liaison role between the central and local levels, technically supporting local-level units when required.Under these circumstances, the duties entrusted by the Ministry of Health's internal regulations at the regional level basically constitute a training supervisory instance, and in the case at hand, the resolver of the ordinary remedies that have been timely filed and addressed by the Directorate. They add that on May 17, 2022, the petitioner filed an appeal before the health authorities of the Escazú Health Governing Area against closure order No. MS-DRRSCS-DARSE-2287-2021, which was forwarded by the Regional Directorate to the office of the Minister of Health on May 31, 2022; consequently, the higher authorities are responsible for that resolution. Subsequently, and given the lack of satisfaction with the decision of the Ministerial Office, on May 17, 2022, the protected party filed a motion for reconsideration with a subsidiary appeal and a motion to nullify against official letter No. MS-DRRSCSDARSE-973-2022, which was resolved without merit by the Regional Directorate through resolution No. MS-DRRSCS-1715-2022 on May 31, 2022, and elevated to the office of the Minister of Health on that same date; for this reason, there has been no injury by their Health Authority to the subjective rights of the petitioner.It must be specified in the specific case that both the Regional Directorate and the Ministerial Office, on both occasions, have declared the motions for reconsideration and appeal filed by the protected party without merit; consequently, the actions carried out by the Escazú Health Governing Area have been confirmed. They emphasize that the only intervention by the Directorate has been the resolution of the aforementioned ordinary remedies, which, as previously indicated, were timely addressed by the Regional Directorate. They comment that on March 12, 2021, the protected party filed a complaint regarding smoke from two chimneys against Mrs. Nombre82762. On March 30, 2021, they conducted an inspection of the reported property, where the existence of two chimneys, corresponding to a wood-burning stove and oven, was evident, as recorded in inspection report No. MS-DRRSCS-DARSE-AIO-AFS-57-2021.Because the Municipality of Escazú had previously granted the owners a period to correct the chimney height, they ordered the suspension of the use of the wood-burning oven and stove until the corresponding height was met; this, through technical report No. MSDRRSCS-DARSE-IT-690-2021, from which sanitary orders No. MS-DRRSCS-DARSE-OS-052-202, No. MSDRRSCS-DARSE-OS-053-2021, No. MS-DRRSCS-DARSEOS-054-2021, and No. MS-DRRSCS-DARSE-OS-055-2021 were issued to the property owners. They indicate that it is recorded in administrative file No. 16090-21 that the petitioner was made aware of: the notification made, she was informed that she has access to the administrative file, and that any copies she requires or desires must be requested at the customer service window and the cost thereof covered (in compliance with the directives held by the Ministry of Health). The foregoing has been communicated to the petitioner via email since June 16, 2021, where the schedule for requesting copies was indicated, and reiterated on August 26, 2021.Knowing she had access to the file, the petitioner previously appeared to take photographs of the administrative file. On December 6, 2021, a notification was received via email from the owners of the reported property, indicating that corrections had been made to the chimney height. Given the above, on December 10, 2021, an on-site inspection was conducted, as evidenced in inspection report No. MS-DRRSCS-DARSE-AIO-AFS-310-2021, accompanied by municipal official Laura Villalobos. At the time of the inspection, a direct measurement of the chimney height was made from the roof outlet to the smoke outlet by joining one-meter pipes; additionally, the distance between the chimney and the petitioner's property was measured, and the roof difference between the petitioner's property and the chimney's roof outlet was measured. With the measurements taken, it was obtained that the chimneys are at a height of five point zero five meters above the property of Mrs.Nombre114938; therefore, official letter No. MS-DRRSCSDARSE-2287-2021 was generated, which was notified to the protected party via email as closure of the complaint filed with the Escazú Health Governing Area. Subsequently, on December 23, 2021, the reconsideration against official letter No. MS-DRRSCS-DARSE-2287-2021, filed with their office via email by the protected party, was forwarded to the Central South Region, wherein she alleged that the tallest property within the five-meter radius established in Article 169 of the construction regulations is the reported property itself since it has two stories. It is emphasized that, given the affected party is the petitioner and not the reported parties, the impact to be resolved by their office concerns the protected party's property; therefore, since the chimney height is five point zero five meters above the petitioner's property, the case was closed.On December 27, 2021, the follow-up official letter to the appeal against the complaint closure filed by the protected party was notified, as the documentation submitted did not meet the requirements established in the General Law of Public Administration; therefore, on December 29, 2021, the protected party submitted her rectification to the appeal against the complaint closure. On December 31, 2021, the Central South Region forwarded the Appeal filed by the petitioner to the central-level Legal Affairs Directorate. Later, on January 4 of the current year, through resolution No. MS-DM-AU-1065-2022, signed by Dr. Pedro González Morera, in his capacity as Acting Minister of Health at that time, the appeal filed by the user against official letter No. MS-DRRSCS-DARSE-2287-2021 was declared without merit. In response, on January 17, 2022, the complainant rebutted resolution No. MS-DM-AU-1065-2022 of January 4, 2022, via email.Subsequently, on January 21, 2022, the email of January 17, 2022, by which an appeal was intended to be filed against resolution MS-DM-AU-1065-2022 of January 4, 2022, was declared inadmissible. On February 2, 2022, they received official letter No. 01024-2022-DHR-(AI) from the Office of the Ombudsperson, requesting an assessment of the possibility of conducting a new inspection; therefore, through official letter No. MS-DRRSCS-DARSE-342-2022, a response was given to the Office of the Ombudsperson, indicating the attention given to the case and the reasons that led to the complaint closure. Later, on March 14 of the year (sic), the Directorate General of Health forwarded matter No. HT-418-2022 regarding the reopening of case No. 16090-21 to the Central South Health Governing Regional Directorate, based on the presentation of new evidence and proof provided by the protected party. On April 29, 2022, the new documentation for the reopening of the case was submitted to their health office.By reason of the foregoing, on April 29, 2022, they proceeded to conduct a new inspection visit to the reported property, where new measurements were made on the chimneys directly by joining one-meter pipes, obtaining a greater height for these due to modifications made by the owners, as evidenced in inspection report No. MS-DRRSCS-DARSE-AIO-AFS-96-2022. On past May 2, 2022, through official letter No. MS-DRRSCS-DARSE-973-2022, a new closure of the sanitary complaint was made as a result of the inspection performed; notified to the protected party on May 4, 2022, via email, and against which, on May 6, 2022, a motion for reconsideration with a subsidiary appeal and a motion to nullify actions and resolutions was filed. On June 1, 2022, they received resolution No. MS-DRRSCS-1715-2022, signed by the Regional Director, wherein the remedy filed by the protected party was declared without merit; holding that one's own building should not be counted within the five-meter radius established in Article 169 of the construction regulations. They request that the action be declared without merit.
- 5Arnoldo Barahona Cortés, Jerson Calderón Valverde, and Carlos Monge Delgado, in that same order Mayor, Coordinator of the Environmental Management Subprocess, and Head of the Urban Planning and Control Process, all from the Municipality of Escazú, report under oath that since the notification of official letter No. GA-101-2020 on February 16, 2020, it is known that the location of the wood-burning stove and oven is in the washbasin patio, behind the house, on the first level, and it involves a two-story house. And according to Article 169 of the Construction Law, chimneys must be above the tallest building, and in this case, it would be above the height of the second-story roof. In the notification of official letter No. GA-101-2020, it was established to inform the owners that they had ten days to submit to the Municipality of Escazú the timeline for the remedial plan, and once this timeline was executed, they had ten days to inform the Municipality of the completion and result of the works; if the indicated items were not submitted, the case would be forwarded to the Ministry of Health in accordance with Articles 93 and 96 of the Construction Law.They indicate that they addressed complaint No. 21234-2020, forwarded through the Integrated System for Environmental Complaint Processing of the Ministry of Environment and Energy; the complaint indicated the following: “(…) according to the complainant, constant burning of wood and firewood is occurring for the use of a stove whose chimney is not in the correct form, generating columns of smoke that affect neighbors such as elderly adults and persons with asthma and other conditions (...)”. They comment that on February 12, 2021, they drafted report No. GA-107-2021 (notified to the property owners), who responded with their willingness to solve the problem in a note received at the Municipality on March 22, 2021. Nombre774, that the complaint entered the Ministry of Health (file number 16090-21), and on March 16, 2021, coordination was made and the file of actions taken to date was sent to address the case jointly.At the request of the Ministry of Health, a joint inspection was conducted on December 10, 2021, in follow-up to the case, and report No. MS-DRRSCS-DARSE-2287-2021 was issued, where the Ministry of Health closed the case; however, given the complainant's disagreement and in response to the meeting held at the Municipal Mayor's Office, on March 9, 2022, at 9:00 a.m. and in the presence of the owners of the reported property, another inspection was conducted to corroborate the chimney specifications and legal compliance of the case. They comment that, as required by official letter No. CA-2022-01 7-21234 from the National Environmental Comptroller's Office, official letter No. COR-GA-184-2022 with follow-up information was uploaded to the “SITADA” platform; which was sent via email to the Environmental Comptroller and the complainant. They mention that the report on the inspection conducted was received on March 24, 2022, and subsequently, on March 25, it was incorporated into the “SITADA” platform.According to report No. INF-IG-0207-2022, the chimney has an approximate height of three meters from the base of the roof, so the respective notification was made to the owners through official letter No. COR-GA-212-2022, which indicated that the chimney must not be used until they comply with the established regulations according to the applicable rules. They indicate that through report No. COR-CC~370-2022 from the Construction Control Subprocess, the reported parties were informed that the works to be developed correspond to a major work that must be submitted through the APC platform of the Federated College of Engineers and Architects, which is why a proceeding was subsequently entered into the APC as No. 1036802 for "Remodeling of existing roof (replacement)," which was rejected on May 26, 2022. They mention that complaint No. 212349-2020 has been processed and followed up on, and the intervention of the competent entities within the municipal organization and the Ministry of Health has been managed.Nombre774 that, through official letter No. COR-CC-370-2022, the entry of the proceeding on the APC platform was recorded on May 19, 2022 (file No. 260-22 was assigned to it), and once reviewed, the review report was issued on the cited platform on May 26, 2022; however, said project is listed as “rejected request.” They mention that, to date, the construction permit application is active under construction permit application file No. 260-22, associated with CFIA contract 1036802 and in the name of the owner of the reported property. They indicate that the owner of the reported property carried out the corresponding procedures before the Federated College of Engineers and Architects; however, the permit was rejected on May 26, 2022; they are awaiting the correction of the construction permit and have approximately two months to do so in accordance with Article 4.1 of the Regulatory Plan of the Municipality of Escazú (a period of ninety days was granted according to the indicated numeral).They clarify that, should the person responsible for the work not correct the mentioned items within the established time, the demolition procedure for the work (chimney) established in Article 93 and following of the Construction Law, Law No. 833, will be immediately initiated. They request that the action be declared without merit.
- 6Through a document submitted to the Secretariat of the Chamber at 13:57 hours on August 5, 2022, the petitioner requested the review of official letter No. CA-2022-09, issued by the Environmental Comptroller of the Ministry of Environment and Energy. She expressed her concern regarding the statements made by the respondent authorities in their reports. She requests that the action be granted.
- 7Through a document added to the digital file on August 10, 2022, the petitioner states: “My name is Nombre114938, ID Card CED45043 Please, I Request the Constitutional Chamber to give me an explanation about this document that appears in the documents that form part of File 22-014229-0007-CO. .....? I inform you that, until today, August 9, 2022, I have just found this document and it has caused me great concern, and I received the corresponding email in my email on June 28, 2022, and I could not believe that my Amparo Action was Not among those Accepted and I have been waiting for days for My Response ..... My email came from cemce@poder-judicial ..... Thank You Very Much For Your Prompt Response And I don't know if I should have sent a confirmation of receipt (…)”.
- 8Through documents added to the digital file on August 17 and 18, 2022, the petitioner provides evidence.
- 9Through a document added to the digital file on August 22, 2022, the petitioner states: “THEY CHECKED AND CONFIRMED ..... THAT : ' All measurements were TAKEN into account , starting from the roof of the complainant's house (it is my terrace) , to THUS RESOLVE , that the necessary and required measures , to complete the 5 Meters of Height ...........' ( review documents and reports , Notifications and Oficial Letters of the Escazú Health Area ) What a Lack of Truthfulness .com, of Legality, of Respect and of Consideration, to the people who Request YOUR HELP and YOUR INTERVENTION to RESOLVE A SITUATION That Is AFFECTING MY HEALTH SO MUCH AND THEY DEFINITELY ONLY Demonstrate Breach of Their Duties (…)”.
- 10Through a document added to the digital file on August 22, 2022, the petitioner states: “Subject: File-22-014229-0007-CO. Example Image of chimneys used in 'roast chicken sales' with a wood-burning stove and restaurants in Escazú and that are located in a place of only one Level Height, and I wonder HOW the structure AND height of the 2 chimneys would have to be, in that 2-Level Height house, which are 2 thin pipes, joined in several parts and identical in the narrow and reduced diameter and Without any Compliance with what is established by the INVU Construction Law: Article 169: Residential Chimneys: 'Must have a Minimum Height of 5 Meters, Above the tallest building on the property.' And the most unheard-of and incredible thing is to read and try to understand and even less Accept 'the words used by the Ministry of Health, in the documents and reports before the Constitutional Chamber, to 'Ensure' and 'Guarantee' that in all the Inspections carried out (…)”.
- 11Through a document added to the digital file on October 26, 2022, the petitioner states: “Signature with ID Card No. FALSE on Notification of Oficial Letter No. COR-GA-212-2022, from the Municipality of Escazú, M. Urban Management - Urban Management Process - Environmental Management Subprocess, Date: March 28, 2022.
Regarding the neighbor of the two-level house, Nombre82762, ID: CED45044 (TSE), from my COMPLAINT for smoke pollution from the use of a wood-fired stove and oven, before the Municipality of Escazú by MINAE, docketed 21234-2020, and before the Ministry of Health with Case No. 16090-2021. I apologize to the Licensed Magistrates of the Constitutional Chamber because, in my Accusation for Failure to Obey, Respect, and Comply with the Rules established in the Notifications of the Municipality of Escazú and against whom I Accuse for the constant use of the wood-fired stove and oven, I noted the ID Number as I observed it in said notification. And I request that with my Correction and Clarification (Attached TSE proof) the Correct ID Number be corrected: Nombre82762, ID CED45044 (…)”.
- 12By document incorporated into the digital file at 13:26 hours on September 27, 2022, the petitioner states: “Notification received, today Monday, September 26, 2022. Signed by Dr. Jocelyn Camacho Madrigal with the Resolution ruling “Without Merit” my Appeal filed since May 6, 2022. (already attached to the Chamber) Comes: MS-DM-AU-6842-2022 Appeal of Nombre114938.pdf Please, inform me about this.... I Was Certain that, having “my Amparo Appeal” filed since June 27, 2022, and Accepted since June 28, 2022 “Because it concerns Health”... It Could Not Be Signed, in any way, by the Dr. Minister of Health, now with this email received and which gives 15 days to the Escazú Health Area to receive compliance with the administrative acts issued in the case at hand ..... with a copy to Legal Affairs (…)”.
- 13By document incorporated into the digital file at 13:25 hours on September 27, 2022, the petitioner states: “Because my neighbor, Nombre82762, ID CED45045, also Accused by me in the Amparo Appeal, Accepted since June 28, 2022, and is being processed ... But she “Has Not Ceased using the wood-fired stove and oven,” Based on the Notification from the Escazú Health Area and that “she, just like the Minister of Health, is “Considered Correct,” And as I Can No Longer Tolerate the direct smoke pollution in my house, and me with Complicated Asthma Crises Unjustly Caused By the inconsideration and lack of respect for the indications given in Notification COR-GA-212-2022 from the Municipality of Escazú: DO NOT Use the wood-fired stove and oven (…)”.
- 14By document incorporated into the digital file at 13:45 hours on September 27, 2022, the petitioner states: “URGENT: Recent information from Friday, September 23, 2022 > Request before the Pension and Domestic Violence Court of Escazú (Domestic Violence Matter) and it was Accepted and Signed by the Deciding Judge, Mercedes Mejía Sáenz, and the Request for Judicial Intervention is in Exp. 22-000334-1782-VD with “Protection Measures Ordered: Atypical:” Use of her wood-fired stove and oven is Prohibited in Order Not to Cause Harm to the requesting person ....” until complying with everything established by the Municipality of Escazú “ ....... >> Because my neighbor, Nombre82762, ID CED45045, also Accused by me in the Amparo Appeal, Accepted since June 28, 2022, and is being processed ... But my neighbor “Has Not Ceased using the wood-fired stove and oven” on constant days and exaggerated the quantity of full days of smoke ....Based on the Notification from the Escazú Health Area and that “she, just like the Minister of Health, is “Considered” Right and Correct” And it is “Totally Different, Contrary, Illegal, and Unacceptable” to the Official Notifications from the Municipality of Escazú dated March 28, 2022, already attached to the File. And today, September 26, 2022, I receive the email from the Legal Directorate, the Notification “Ruling Without Merit” My Appeal of May 4, 2022, signed By the current and new Minister of Health, Dr. Joselyn Camacho Madrigal, and which grants them 15 days to receive the administrative acts of the case at hand to “Finalize” the case .......? ? While since June 28, All Hierarchies of the Ministry of Health Know, Participate, and Comply with sending the documents Requested within a 3-day deadline by the Constitutional Chamber due to my Immediately Accepted Amparo Appeal ... >> As “I Can No Longer Tolerate” the direct smoke pollution in my house, and me with Complicated Asthma Crises Unjustly Caused By the inconsideration and lack of respect for the indications given in Notification COR-GA-212-2022 > from the Municipality of Escazú: DO NOT Use the wood-fired stove and oven While They Do Not Comply With the Detailed Process to “Mandatorily Comply” with Article 169 of the Construction Law: “Chimneys must be 5 Meters Above or Over the roof of the 2nd Level of the house” as the “Minimum Height” and a radius of 5 Meters distance from the western neighbor, which “Is Also Not Met” because there are only 3 Meters 158 cm, signed with a digital signature by Geologist Laura Villalobos C. and Eng.Jerson Calderón Valverde, in the 1st Official Notification 107-2021 from the Environmental Sector of the Municipality of Escazú, and Confirmed Again by the Entire Team of Inspectors (5) from different Sectors of the Municipality of Escazú, who complied with issuing their Official Letters for March 28, 2022, in the 2nd Inspection conducted By Orders of Lic. Walter Zapata Ortega, Environmental Comptroller of MINAE. Date: Inspection of March 9, 2022 (…)”.
- 15By document incorporated into the digital file at 14:55 hours on September 27, 2022, the petitioner states: “URGENT: Information from the Pension and Domestic Violence Court of Escazú: Exp: 22-000334-1782-VD ..... Date: Friday, September 23, 2022. “PROHIBITION of Use of wood-fired stove and oven” for the Obligated or Accused neighbor Nombre82762, ID CED45045. I consider that this New document May be useful to help Define the Resolution of the Constitutional Chamber, and More so at this critical moment with the signature of the new Minister of Health, Dr. Joselyn Camacho Madrigal, in a Notification received yesterday, Monday, September 26, 2022, And with the Decision to Rule Without Merit My Appeal, filed since May 6, 2022. I Ask Myself Again: If the Municipality of Escazú Does Not Authorize Nor Permit the installation of the 2 chimneys on the roof of the 1st Level and it is FIRM that “They Do Not Comply with Article 169 of the current Construction Law, Due to Errors in the Minimum Height measurements and Error in the Nonexistent Measurement of the radius from the western neighbor (ME), which must be 5 Meters and Only Exists 3 Meters, 158 cm ...And They Clarify that after compliance with several requirements, which must be submitted for Review of the Pending Construction Permit and Approval by the Municipality of Escazú .... How does the Ministry of Health NOT Accept these Official Letters AND Decides to Approve measures that DO NOT Comply with those legally established, AND MORE SO FOR the Harm Caused to My Health Already Confirmed even by the Medical Certification from Calderón Guardia Hospital No. 1312-05-2022 for suffering serious asthma crises, dated May 2, 2022, with all legal stamps included. And added to the Enormous Harm Caused over years with the Approval Always of the Ministry of Health, and they compromise even the Minister of Health to sign a document that she has not even had any knowledge of the serious case of Air pollution from the smoke provoked and shot directly towards my house, and Dr. Joselyn Camacho Madrigal is Also Unaware that the OMBUDSMAN’S Office knows that they NEVER conducted an IN-PERSON inspection in my house Nor EVER conducted A TEST of lighting the stove TO Confirm the effect of the Contaminating and harmful smoke output causing asthma.And that both procedures ARE MANDATORY, and I ask myself How does the Minister of Health Insist on giving an Incorrect Resolution, with so many SERIOUS ERRORS in the Procedures And Wrong Documents Since March 12, 2021 ......? ? and is requesting all the administrative acts in the case at hand To FINALIZE the case .... ? ? (…)”.
- 16By document incorporated into the digital file at 14:12 hours on October 3, 2022, the petitioner states: “Friday, September 23, 2022, Request for Judicial Intervention with a Prohibition Measure on the use of the wood-fired stove and oven for Nombre82762, ID CED45045. And since Friday, Sept. 23, Saturday, Sept. 24, Sunday, Sept. 25, Monday, Sept. 26, and Even Tuesday, Sept. 27, 2022, they Continued using the wood-fired oven and stove .... And when I observed a motorcyclist delivering the Corresponding Official Notification, then I consulted the Judiciary and confirmed Yes and the time. However, in the afternoon hours 16:15 pm, I called 911 because I consulted the Pavas Prosecutor’s Office and they explained the process. Too bad that when unit PE-8-5269 arrives, with Nombre82777 and Nombre82778, they “Honk” a lot and “ And “as “Always” the neighbor and her children turn off the stove in use.I ask them: “Excuse me: What does it smell like to you?” And the 2 officers respond: “like smoke.” I give them the document and explain that my case is for Health. And they go to talk with the denounced neighbor and after a few minutes, she lets them into her laundry patio, and they return and tell me that they touched and they were not hot, and they consult with Lic. Marlén Acuña, in charge by phone, and she gives them instructions ..... Upon picking up today, October 3, 2022, My Certification: Another “Inaccurate” description because the whole truth: to my question: “What does it smell like to you?” “Yes, it smells like smoke.” Response upon the arrival of the 2 officers, was NOT recorded, and they only record that they found it turned off ..... They must be given better instructions so that their description has a “real objective” .... “ And the neighbor had been preparing since last week her dishes for the Celebration of the Day of San Miguel de Escazú (…)”.
- 17By document incorporated into the file on October 31, 2022, the petitioner provides documentation.
- 18By document incorporated into the digital file on October 11, 2022, the petitioner provides a copy of her identity card.
- 19By document incorporated into the digital file at 17:14 hours on October 3, 2022, the petitioner states: “1st. Official Notification: GA-101-2021-SITADA-21234-2021 > sent to Lic. Walter Zavala Ortega, Environmental COMPTROLLER of MINAE (February 16, 2021) By the Environmental Subprocess of the Municipality of Escazú. > Detail that from this Official Letter: The Indications are Given that: the 2 chimneys DO NOT Comply with the requirements of Article 169 of the Construction Law, according to the Minimum Height measurements of 5 Meters, Above the roof of the 2nd Level of that tall house, and details that the radius of the distance from the western neighbor’s property is > 3,158 meters. (my house). Additionally, It is Noted that “the radius must be 25 meters” ..... Later in the next Notifications, They refer to the fact that the radius measurement is now accepted as 5 meters ....... And for this reason, the chimneys should be on the roof of the 2ND LEVEL of the house. > In Summary: The Municipality of Escazú Ratifies that the owners must Comply With All The Requirements: > detailed and demanded By all the different Subprocesses of the Municipality of Escazú and demanded by Article 169 of the Construction Law.Since March 28, 2022, in Official Letter COR-GA 112-2022. > * The Ministry of Health evidences “as my error” And refutes “RULING WITHOUT MERIT” in all the Appeals Filed before the Escazú Health Region Area, AND I Clarify that from this Official Notification > GA-101-2021, of February 16, 2021, And that the “same one with the 25-meter measurement” was Forwarded to the Ministry of Health as Official Letter GA-107-2021 dated March 16, 2021 (…)”.
- 20By document incorporated into the digital file on November 17, 2022, the petitioner states: “I request you review my case from File: No. 22-014229-0007-CO. AMPARO APPEAL FOR HEALTH, AGAINST THE MUNICIPALITY OF ESCAZÚ AND THE MINISTRY OF HEALTH OF ESCAZÚ FOR BREACH OF DUTIES. The URL to access and Review my Files does not appear for me. I thank you, please cooperate in helping me resolve this inconvenience, especially being an Older Adult, who remains waiting for the Resolution of my AMPARO APPEAL Filed June 27, 2022. And my health problem from smoke pollution continues to cause me asthma crises due to the disrespect and inconsideration of my immediate neighbor, Nombre82762, ID CED45045, who has continued using the wood-fired stove and oven, despite the Prohibition orders against using them by the Judge of the Domestic Violence Court where I filed my Complaint (…)”.
- 21By document incorporated into the digital file on December 16, 2022, the petitioner provides evidence for a better resolution, regarding the apparent damage to her health from the smoke pollution received directly through the windows of her home, the patio, the terrace, and generally her entire house. She asserts that there is a prohibition on using the wood-fired stove and oven until the corrections and requirements of the Construction Regulation are met. She accuses that the construction permit application has been rejected on four occasions. She indicates that on December 11, 2022, the wood-fired stove and oven were used. She emphasizes that the evidence provided is legal and true and must be accepted and recognized to prevent the use of the stove, due to her delicate health. She points out that she was informed that they now had the authorized permit, but questions whether a mandatory inspection must be performed to verify the correct work.
- 22By document incorporated into the digital file on January 9, 2023, the petitioner provides statements:
“Please, I remind you that I am an Older Adult of almost 70 years, and Neither the Municipality of Escazú nor the Ministry of Health, in almost 4 years, Have Fulfilled Their Duties, And the Resolution of my Amparo Appeal is URGENT, FOR Impact from smoke pollution and My known ailments and my asthma crises ..... And the 2 public entities allow them even to build a new chimney with greater proximity to my house > > URGENT SOLUTION FOR Smoke pollution and damages to my health with serious asthma crises. > >> Arch. Andrés Montero Bolaños >> Construction Control >> Municipality of Escazú >> Since Thursday, January 6, 2023 >> The new chimney was installed and it is Assumed that it is Approved by the Construction Control Municipality of Escazú .... >> I request that the corresponding Inspection be carried out to know Your Opinion, as we DO NOT share that it is Correct and even less that it Complies with Article 169 of the Construction Regulation, and much less that the Municipality of Escazú Solves my Health Problem from smoke pollution, and we have already started the year 2023 and 4 years of waiting accumulate from MINAE, since June 25, 2020 ..... > Nombre114938 >> ID CED45043 >> Email ...1963 >> >> PS Observe the details of the immediate proximity and the Minimum height of the chimney of a 2-Level house, which must be above the roof of the 2nd Level of the house and from this point, it must measure 5 Meters as Minimum Height according to Art. 169”.
- 23The legal requirements have been observed in the proceedings followed.
Justice Pacheco Salazar drafts the opinion; and,
CONSIDERING:
I. PRELIMINARY QUESTION
Prior to analyzing the merits of the matter—for the alleged violation of the right to a prompt and completed procedure—it must be clarified that, as of Judgment No. 2008-02545 at 8:55 hours on February 22, 2008, this Chamber has referred to the Administrative Litigation Jurisdiction—with some exceptions—those matters in which it is disputed whether the Public Administration has complied or not with the timeframes set by the General Law of Public Administration (articles 261 and 325) or sector-specific laws for special administrative procedures, to resolve by final act an administrative procedure—initiated ex officio or at the request of a party—or to hear the pertinent administrative appeals. Precisely, in this case, an exception scenario is raised—supported by the majority of this Constitutional Court—because it involves a complaint filed by an older adult for smoke pollution, which allegedly has not been resolved within a reasonable timeframe by the respondents. Having clarified this point, we proceed to resolve the specific situation raised in this amparo.
II. SUBJECT OF THE APPEAL
The petitioner states that she is an older adult and a resident of Escazú, who for several years has suffered from a smoke pollution problem emanating from a wood-fired stove frequently used by her neighbor: Nombre82762; a situation that has affected her health due to the asthma crises she has suffered. She claims that since June 23, 2020, she has reported the above; however, the Municipality of Escazú and the Ministry of Health have not taken any action to prevent her neighbor from continuing to use the wood-fired stove and oven that so greatly affects her health, nor have they provided a solution to her complaint.
III. PROVEN FACTS
Of importance for the decision in this matter, the following facts are deemed duly demonstrated, either because they have been accredited or because the respondent omitted to refer to them as provided in the initial order:
- a)The amparo petitioner is an older adult of sixty-nine years of age (See “Civil Consultations” of the Supreme Electoral Tribunal).
- b)On March 12, 2021, the health complaint filed by the petitioner before the Escazú Governing Health Area is received, alleging fumes and gases caused by two chimneys from the house adjacent to hers, where the wood-fired stove and oven have incorrect measurements according to the Construction Law (See Health Complaint No. 16090-21, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- c)On February 23, 2021, the Environmental Management Subprocess of the Urban Management Planning and Urban Control Process of the Municipality of Escazú stated that “(…) based on what was observed, the existing chimneys do not comply with the provisions of the construction regulation. The owners are informed that they have 10 days to submit the remedial plan schedule to the Municipality. And once this schedule has been executed, they have 10 days to inform the municipality of the completion and results of the works. In the event of failure to submit what is indicated, the case will be transferred to the Ministry of Health.” (See Official Letter No. NOT-GA-107-2021, provided by the Mayor, the Coordinator of the Environmental Management Subprocess, and the Head of the Planning and Urban Control Process, all from the Municipality of Escazú).
- d)On April 12, 2021, the Health Regulation unit of the Escazú Governing Health Area reported that “6. CONCLUSIONS 1. There is a non-compliance with Article 169 of the construction regulation regarding the height of the chimneys located on the property (…) 2. There is a municipal resolution granting the respondents a deadline (…) to carry out the corresponding corrective actions for the height of the chimneys (…) 7. RECOMMENDATIONS 1. Issue a health order (…) ordering the suspension of the use of the wood-fired stove and oven until compliance with the provisions of Article 169 of the construction regulation No. 6306 is achieved.” (See Technical Report No. MS-DRRSCS-DARSE-IT-690-2021, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- e)On April 14, 2021, the Escazú Governing Health Area ordered Nombre82762 Nombre82762, Hulgen Roberto Jiménez Castro, Chiara Gabriela Jiménez Castro, and Esteban Roberto Jiménez Castro to “1. Immediately suspend the use of the wood-fired stove and oven until the height of both chimneys complies with the provisions of Article 169 (…) of the construction regulation (…) The health order may be lifted once the necessary corrective works are presented and executed to resolve the deficiencies indicated in technical report MS-DRRSCS-DARSE-IT-690-2021 (…)” (See Health Orders No. MS-DRRSCS-DARSE-OS-052-2021, MS-DRRSCS-DARSE-OS-053-2021, MS-DRRSCS-DARSE-OS-054-2021, and MS-DRRSCS-DARSE-OS-055-2021, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- f)On August 26, 2021, at 14:00 hours, the Environmental Manager of the Health Regulation Process of the Escazú Governing Health Area informed the amparo petitioner that “(…) the file is at your disposal for any copies you require; you may appear at the customer service window to request the copy, where you must complete a request and go with a companion assigned to a photocopy center, where the cost of these must be covered by you. Or, a person may present themselves with your respective authorization.” (See email communication, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- g)On December 14, 2021, the Escazú Governing Health Area stated that “Taking into account that the affected party’s property is located within the 5-meter radius Indicated in the construction regulation, it is verified that the smoke outlets of the existing chimneys are located at a height of 5.05 meters above the roof of the respondent’s property. Therefore, the case is closed and the administrative file is archived.” (See Official Letter No. MS-DRRSCS-DARSE-2287-2022, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- h)On January 4, 2022, at 10:20 hours, the Ministry of Health resolved “to rule WITHOUT MERIT the Appeal filed by Mrs. Nombre114938 against the archiving official letter No. MS-DRRSCS-DARSE-2287-2021 dated December 14, 2021, from the Escazú Governing Health Area, Confirming in all its aspects the acts appealed” (See Resolution No. MS-DM-1065-2022, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- i)On January 12, 2022, the Escazú Governing Health Area stated that “(…) on December 10, 2021, an Inspection visit was made to the property (…) to verify the improvements made to the height of the chimneys for the wood-fired stove and oven, ordered through administrative acts No. MS-DRRSCS-DARSE-OS-052-2021, No. MS-DRRSCS-DARSE-OS-053-2021, No. MS-DRRSCS-DARSE-OS-054-2021, and No. MS-DRRSCS-DARSE-OS-055-2021. Through the measurements taken, it was obtained that the height of the chimneys from the roof outlet to the smoke outlet is approximately 4.05 meters, to this is added the height difference of the complainant’s property roof, which is 1 meter, resulting in a chimney height of 5.05 meters with respect to the complainant’s property roof. Given the above, compliance with the orders issued via the aforementioned administrative acts is achieved, and the case is closed.” (See Official Letter DRRSCS-DARSE-094-2021, provided by the petitioner).
- j)On January 21, 2022, at 8:20 hours, the Ministry of Health resolved “(…) TO DECLARE INADMISSIBLE the email dated January 17, 2022, from Mrs. Nombre114938, attempting to file an appeal against resolution No. MS-DM-AU-1065-2022, duly notified on January 7, 2022. The administrative act issued is confirmed in all its aspects in resolution No. MS-DM-AU-1065-2022, issued by this Ministerial Office at 10:20 hours on January 4, 2022.” (See Resolution No. MS-DM-AU-1295-2022, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- k)On February 2, 2022, the Ombudsman’s Office requested the Escazú Governing Health Area to “(…) within EIGHT WORKING DAYS from the day following receipt of this communication, in accordance with Article 20 of the Ombudsman’s Law No. 7319, evaluate the possibility of conducting a new inspection (with the corresponding tests of the use of the chimney) specifically in the resident’s house, to verify the potential impact on the health of Mrs. Nombre114938 generated by the wood-fired stove and oven located on the property adjacent to the interested party.” (See Official Letter No. 01024-2022-DHR - [AI], provided by the petitioner).
- l)On that same February 2, 2022, the Ombudsman’s Office notified the above to the amparo petitioner (See Official Letter No. 01024-2022-DHR - [AI], provided by the petitioner).
- m)On February 9, 2022, the Escazú Governing Health Area referred to the request made by the Ombudsman’s Office and indicated that “(…) this does not proceed (…) this office handled the case with the required measurements regarding the chimney height compliance according to what is established in construction regulation No. 6306, which was confirmed by the minister of health.” (See Official Letter No. MS-DRRSCS-DARSE-342-2022, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- n)On February 16, 2022, the Ombudsman’s Office referred to the statement made by the Escazú Governing Health Area and indicated that “From what was reported by the resident, the documents provided, the information from the Escazú governing health area, the Ombudsman’s Office’s competencies, and health regulations, it is understood that the Ministry of Health addressed and processed the complaint filed by Mrs. Nombre82785. Initially, the health entity issued the respective health order, ordering the questioned chimney to comply with the height stipulated in Article 169 of the Construction Regulation, an order that was complied with by the required person, as verified by the health authorities through an inspection carried out on December 10, 2021, according to official letter MS-DRRSCS-DARSE-2287-2021. Based on the above, the Escazú Governing Health Area deemed the requirement fulfilled, having verified that the chimney was modified according to the required parameters, currently measuring 5.05 meters in height above the nearest building, a technical basis on which the environmental contamination case filed by Mrs. Nombre114938 is closed.” (See Official Letter No. 01644-2022-DHR - [AI], provided by the petitioner).
- o)On March 28, 2022, the Environmental Management Subprocess of the Urban Management Planning and Urban Control Process of the Municipality of Escazú resolved that “(…) based on the principle ‘in dubio pro natura’, in order to guarantee no impact on third parties, and based on Article 50 of the Political Constitution (…), they may not use the chimney until it complies with the established regulations for its improvement and operation (…) To carry out the requested improvements, they must comply with the provisions of the Construction Law and its regulation, and likewise must comply with the permit procedures before the Municipality.” (See Official Letter COR-GA-212-2022, provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- p)On April 29, 2022, at 8:56 hours, the Escazú Governing Health Area received a request from the amparo petitioner to reopen “(…) case 16090-2021 based on the submission of new and evident evidence, which I attach (…)” (See document provided by the Director General of Health, the Director of the Central South Regional Directorate of Health Governance, and the Director of the Escazú Governing Health Area, all from the Ministry of Health).
- q)On May 2, 2022, the Directorate of the Escazú Governing Health Area resolved that “In response to your request for reopening of administrative file No. 10090-21 (…), it proceeds again with the closure of said file, as the criterion is maintained that the building where the chimneys are located is not contemplated within the 5-meter radius established in the construction regulation, based on a principle of reasonableness. The foregoing was endorsed in resolution MS-DM-AU-1065-2022, which was notified to you.” It should not be omitted that, although the Municipality of Escazú is in an administrative process against the denounced parties, this is not within the competence of this body, meaning that said institution is responsible for following up on its own process, notifications made, as well as non-compliance with these, within its powers as provided in Article 1 of the Construction Law (Ley de Construcciones).” (See Official Communication MS-DRRSCS-DARSE-973-2022, provided by the Director General of Health, the Director of the Dirección Regional de Rectoría de la Salud Central Sur, and the Director of the Área Rectora de Salud de Escazú, all of the Ministry of Health).
- r)On May 6, 2022 at 11:40 a.m., the Área Rectora de Salud de Escazú received a motion for reconsideration with subsidiary appeal and motion to set aside filed by the petitioner against the previous official communication (See document provided by the Director General of Health, the Director of the Dirección Regional de Rectoría de la Salud Central Sur, and the Director of the Área Rectora de Salud de Escazú, all of the Ministry of Health).
- s)On May 31, 2022, the Dirección Regional de Rectoría de la Salud Central Sur of the Ministry of Health resolved that “This motion for reconsideration is declared WITHOUT MERIT (…) against resolution MS-DRRSCS-DARSE-973-2022 (…) the appealed resolution is confirmed in all its parts, and the case file is hereby elevated to the office of the Minister to resolve the appeal requested on a subsidiary basis, as well as the motion to set aside filed.” (See Official Communication MS-DRRSCS-1715-2022, provided by the Director General of Health, the Director of the Dirección Regional de Rectoría de la Salud Central Sur, and the Director of the Área Rectora de Salud de Escazú, all of the Ministry of Health).
- t)On June 30, 2022, the Environmental Management Subprocess (Subproceso Gestión Ambiental) of the Urban Planning and Control Process (Proceso Planificación y Control Urbano) of Urban Management (Gestión Urbana) of the Municipality of Escazú stated that “(…) According to municipal document COR-CC-370-2022 from the Construction Control Subprocess (Subproceso Control Constructivo), the denounced parties are informed that the works to be developed correspond to a major work that must be submitted through the APC platform of the Federated College (colegio federado) (…) -A procedure was entered into the APC with number 1036802 for ‘Remodeling of existing roof (replacement)’ which was rejected on May 26, 2022 (…)” (See Official Communication No. COR-GA-343-2022, provided by the Mayor, the Coordinator of the Environmental Management Subprocess, and the Head of the Urban Planning and Control Process, all of the Municipality of Escazú).
- u)On July 1, 2022, the Coordinator of the Construction Control Sub-process (Sub-Proceso de Control Constructivo) of the Municipality of Escazú stated that “(…) the procedure under study was assigned file No. 260-22, which, once reviewed, resulted in the issuance of the review report to the aforementioned platform as registered on May 26 of this year, for which the list of pending points to be addressed is textually extracted (…) 1-Must provide the form called rights validation (available at www.escazu.go.cr); you are warned that, if you do not have a digital signature, the form must be authenticated by a notary public. 2-Must provide the identity card of all property owners according to registry information. 3-Must provide approval (visto bueno) issued by all property owners for the works to be carried out. 4-Indicate the setbacks of the project to be carried out referenced to the centerline of the roadway facing the property. must indicate on construction drawings the alignment as indicated in the land use (uso de suelo) permit, and must also indicate the width of the right-of-way and the respective property and building lines, in compliance with Article 9.5 and subsequent articles of the regulatory plan of the canton of Escazú. all corrections to construction drawings must bear the CFIA appraisal stamp. 5-Must indicate on construction drawings the total coverage (cobertura) percentage (%) of the project to be carried out, must respect what is indicated in the requested land use (uso de suelo) permit. all corrections to construction drawings must bear the CFIA appraisal stamp. 6-Must clarify on construction drawings the issue of the chimney, as indicated in the land use (uso de suelo) permit. all corrections to construction drawings must bear the CFIA appraisal stamp…” (…) there is a copy of the follow-up issued by General Inspection, since there is a record of the warning (prevención) issued by Arch.
Daniel Barrios of the General Inspection Sub-Process via email as registered on June 30 of this year, which notified Mr. Esteban Jimenez in order to resolve the initiated procedure or, failing that, said procedure is transferred for the opening of the corresponding administrative process (…) as of today’s date, within the established deadlines, the construction permit application is still active with file number 260-22 associated with CFIA contract 1036802 in the name of Mrs. Nombre82762.” (See Official Communication No. COR-CC-622-2022, provided by the Mayor, the Coordinator of the Environmental Management Subprocess, and the Head of the Urban Planning and Control Process, all of the Municipality of Escazú).
- v)On September 22, 2022 at 10:20 a.m., the Ministry of Health resolved “(…) to declare WITHOUT MERIT the Appeal filed by Mrs. Nombre114938 against the closure order No. MS-DRRSCS-DARSE-2287-2021 dated December 14, 2021, from the Área Rectora de Salud de Escazú, this Office ratifying, in all its parts, the acts appealed here.” (See Resolution No. MS-DM-AU-6842-2022, provided by the petitioner).
IV. ON THE SPECIFIC CASE
Having analyzed the joint reports rendered firstly by the Director General of Health, the Director of the Dirección Regional de Rectoría de la Salud Central Sur, and the Director of the Área Rectora de Salud de Escazú, all of the Ministry of Health, and secondly, by the Mayor, the Coordinator of the Environmental Management Subprocess, and the Head of the Urban Planning and Control Process, all of the Municipality of Escazú—with the criminal consequences explicitly provided for in Article 44 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional)—and the documentary evidence provided, it was proven that both the Ministry of Health and the Municipality of Escazú have not omitted their powers to process the complaint filed by the petitioner since 2021. It is worth clarifying that this Court must rule regarding the alleged delay, argued by the petitioner, in the administrative procedures processed to respond to the environmental complaint.
Regarding the above, it was confirmed that from 2021 to date, the Ministry of Health has managed the case by ordering the suspension of the use of the stove (fogón) and the wood-fired oven against the denounced parties (as a sanitary order, while they corrected the deficiencies through corrective works); subsequently, it verified that the smoke outlets of the existing chimneys are now located at a height of five point five meters above the roof of the denounced party's property; due to the above, it closed and archived the administrative file; and later reopened the case, but closed it again for the same reasons (the corrective works had already been carried out). For its part, since the chimneys did not comply with the construction regulations, the Municipality of Escazú informed the owners that they had ten days to present a remedial plan schedule, and that once it was executed, they had ten days to report the completion and results of the works; subsequently, it ordered the denounced parties that they could not use the chimney until they complied with the regulations established for its improvement and operation; and currently, the denounced parties must correct the requirements requested by the Colegio Federado de Ingenieros y Arquitectos, in order to implement the necessary works ordered by said Local Government. Indeed, the Ministry of Health's decision to close the case was challenged by the petitioner on several occasions and was finally rejected; however, she exercised her right to appeal.
Based on the foregoing, it was corroborated that both bodies have indeed processed the petitioner's complaint and have resolved the corresponding matters; that is, the complaint was addressed and resolved. Now, it is necessary to clarify that this Court should not rule regarding the height of the stoves or whether the decisions for their determination were in accordance with the Law or not; since the above would constitute a disagreement by the petitioner with what was resolved by the respondents, and it would then be appropriate to settle it through ordinary proceedings. Therefore, as no fundamental right of the petitioner has been violated, the appeal is declared without merit.
V. NOTE BY JUSTICE CASTILLO VÍQUEZ, REGARDING PROMPT AND COMPLETE ADMINISTRATIVE JUSTICE
I have supported this Court's thesis that when a litigant alleges a violation of the right to prompt and complete justice in an administrative venue, it is the Administrative-Contentious Courts and not this Chamber that must hear the legal dispute. However, with the recent enactment of Law No. 9097, Law Regulating the Right of Petition (Ley de Regulación del Derecho de Petición), it has been established that this right is susceptible to judicial protection through the amparo appeal established by Article 32 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), in relation to Article 27 of the Political Constitution of the Republic of Costa Rica, in those cases where the petitioner considers that the material actions of the Administration, its administrative acts, or its response are affecting their fundamental rights. In my view, the recently enacted regulation does not imply that this Court must modify its jurisprudential line, as it, based on numeral 7 of its Law, is responsible for defining exclusively its own competence.
Therefore, except for those legal-constitutional disputes that have been recognized by this same Chamber as exceptions, which can indeed be heard in this jurisdiction through the constitutional amparo process, in all other cases, and for the reasons given by this Court (judgment No. 2008-02545 of 8:55 a.m. on February 22, 2008), the competent authorities are the Judges of the administrative-contentious jurisdiction, all of which is in accordance with numeral 25 of the American Convention on Human Rights, Constitutional Law (values, principles, and norms), and the corresponding legal norms based on a logical, systemic, and teleological interpretation of the legal system.
VI. DOCUMENTATION PROVIDED TO THE CASE FILE
The parties are warned that if they have provided any document on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic, or new-technology-produced device, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not withdrawn within this period will be destroyed, pursuant to the provisions of the “Regulation on the Electronic File before the Judicial Branch (Reglamento sobre Expediente Electrónico ante el Poder Judicial)”, approved by the Corte Plena in session No. 27-11 of August 22, 2011, Article XXVI and published in Judicial Bulletin number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, Article LXXXI.
THEREFORE:
The appeal is declared without merit. Justice Castillo Víquez records a note. Let it be notified.- Fernando Castillo V.
Fernando Cruz C.
Paul Rueda L.
Jorge Araya G.
Anamari Garro V.
Aracelly Pacheco S.
Jose Roberto Garita N.
*XINCJLNBLXY61* FILE No. 22-014229-0007-CO Telephones: Telf7268/ (Telf10). Fax: Telf1209 / Telf7229. Electronic address: www.poder-judicial.go.cr/salaconstitucional. Address: (Dirección09, Dirección05, 100 mts.Sur de la iglesia del Perpetuo Socorro). Reception of matters from vulnerable groups: Dirección6012, San José, Dirección2662, Dirección495, calles 19 y 21, Dirección1786